CIJs Blunk and You in Nazi Uniforms and Other Responses to the CIJs Purported Decision to Discontinue with Cases 003 and 004

Following the Co-Investigating Judges’ (CIJs) statement on April 29, 2011 that investigations in Case 003 and 004 were concluded it was presumed that the CIJs found no merit in the charges laid by the prosecution a year and a half ago. Under normal circumstances this situation would have been business as usual and would not have riled up as many observers as it did. However, these were not the normal circumstances. To set the stage for what happened it will help to recall Prime Minister Hun Sen’s statement about a year and a half ago that, in his opinion (which in the context of the Cambodian de facto autocracy is the opinion of the State), the prosecution of the initial 5 suspects in Cases 001 and 002 was sufficient to accomplish what the ECCC set out to do. As the Cambodian Prime Minister’s opinions are not mere statements of private nature but a matter of government policy, the National Co-Prosecutor of the ECCC immediately bowed out of Case 003 and 004. But not the International Co-Prosecutor who put together Introductory Submissions and filed them unilaterally. After a year and a half of PTC and CIJ posturing, the CIJs, reportedly (it is impossible to determine what specifically they meant to say from their short public statement), found no merit in pursuing Cases 003 and 004.

I have no reason to believe that the Cambodian populace cared one way or the other about the CIJs’ statement but long-term observers of the ECCC with a stake in the continued proceedings had a violent reaction to it.

One such observer, James Goldston of a New York-based NGO, the Open Society Justice Initiative (OSJI), whose organization has attempted to influence the ECCC process since before the establishment of the ECCC called the statement and the overall position of the Cambodian government regarding Cases 003 and 004 “the fix”. Mr. Goldston’s attempt to portray this policy as sinister is somewhat misplaced and his ‘righteous ire’ is out of sync which his organization’s previously taken positions. He argues that it will “implicate the court in a political decision to halt proceedings” if the CIJs find that the defendants in Cases 003 and 004 do not meet the standard of ‘most responsible’ of the law which established the ECCC. It is true that the vagueness of the ‘most responsible’ category of the ECCC’s personal jurisdiction might be used by those who want to discontinue with 003 and 004. But, where was Mr. Goldston and his organization when the Court stretched the definition of ‘most responsible’ to prosecute Duch (whose counsel kept asking the Trial Chamber throughout the trial why his client was singled out for prosecution)? Or was this simply a stretching of the legal categories OSJI found acceptable and Mr. Goldston’s current opprobrium is not a matter of legal principle but merely that of his disagreement with what appears to be the Cambodian government’s prosecution policy? Mr. Goldston equally does not tell us specifically what in the design of the Court warrants 003 and 004. Nor does he mention that if prosecuted, 003 and 004 will open the door to 005 and 006 and so on and so forth until everyone who had some rank of authority under the Khmer Rouge is prosecuted. The extent to which prosecutors are independent from the political branch’s prosecution policy under Cambodian law (we all know what happens in practice) remains an interesting question, however, and as such should be studied.   

While Mr. Goldston’s opinion piece is written in decorous professional language, this cannot be said about the spitfire style of journalism of KI Media and Theary Seng (who re-printed KI Media’s materials in a number of cases). The journalists of KI Media decided to express their ire at the CIJs’ statement by attacking the International CIJ’s, Mr. Siegfried Blunk, nationality. It is not difficult to imagine how any mention of Germany at crimes against humanity proceedings conjures up the images of German atrocities during WW2. It is, however, a low blow to be opposing a jurist’s position by likening him to the perpetrators of the worst and most institutionalized crimes in recorded history, even if he happens to be one of their descendants. While Germany as a nation deserves every bit of this notoriety, an individual jurist acting in his official capacity does not (http://www.thearyseng.com/columnist/32-theary-sengs-blog/294-legal-farce-at-eccc-toward-dismissing-case-003-ocij-press-release). While the First Amendment (the freedom of speech clause) in the US (what the Cambodian Constitution’s right to freedom of expression protects continues to remain a mystery) protects this type of speech, this only means that the US government is unable to limit this speech in any way. This does not mean that as a society we need to endorse or put up with this. Regardless of how anyone might personally feel about Germany or the Germans and regardless of the pith they believe they are going for by putting Mr. Blunk in a Nazi uniform in a cartoon (perhaps, if they knew a bit more of the history of the Third Reich, they would have expanded those to focus on Mr. Blunk’s place of origin and gotten creative with the similes there), the public debate does not stand to benefit from these freedom of speech-protected shenanigans. The public debate on this issue would, however, benefit from competently made statements of opposition. The vitriol promoted by KI Media and Theary Seng does nothing more than bring down this debate to the level of puerility.

The seriousness of the issue of the discontinuation with Cases 003 and 004 is that of significance, however. It raises important questions of the extent of permissible entanglement between the prosecutors and the politicians in Cambodia and the extent to which the phenomenon of ‘a prosecution policy’ is legal under Cambodian law (no one seemed to have had a problem with it when the Cambodian government adopted a prosecution policy on human trafficking offenders following a strong condemnation of the US Department of State). It also raises a question of whether those Cambodians who do not stand to benefit from the ECCC financially are interested in seeing the Chambers prosecute more offenders. It also raises a perennial question of the timeframe for the completion of this process. Lastly, it should put the quality of legislative drafting which went into the law which established the ECCC into question: the present situation is not something no reasonable legal expert could have predicted (in fact, this issue was raised prior to the inception of the ECCC) and as such should have been anticipated and provided for by the international drafters (it was not; which is part of the reason we are here today).