Leading prosecutors from five major international criminal courts gathered Wednesday at the Extraordinary Chambers in the Courts of Cambodia for an annual conference on the challenges of ensuring that no one, anywhere, remains above the law.
Cambodia’s Khmer Rouge tribunal is the newest member of this growing family of international criminal courts, all of which face the delicate task of balancing international principles with state sovereignty.
More deeply, all these courts, which were established by diplomatic negotiation, have been forged in a crucible of politics.
“We are confronted with politics all the time,” said Carla Del Ponte, chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia.
But the political intrigues that govern the establishment of international courts, investigators’ ability to access documents and witnesses, and the arrest of suspects must end once a trial begins, she said.
“Once you have your fugitive arrested, once you start the trial, politics is out the door of the court,” she said.
There is no one best way to ensure judicial independence, though it is a bit easier to do so with purely international tribunals, she said.
The success of Cambodia’s court—which is unique in that it operates within the national courts, with a majority of national players—will depend on the political will of national authorities, she said.
“Here it seems the Cambodians want to keep control of this court. That’s not really helpful for a fair trial. It depends. We must see how it goes. Maybe the judges are professionally correct,” she said.
Stephen Rapp, prosecutor for the Special Court for Sierra Leone, said if any new hybrid court is convened in the future, he would “support that institution having a majority of international judges.”
In his opening address, Cabinet Minister Sok An underscored the Cambodian government’s full support for the work and structure of the ECCC.
“What happens in this very place over the coming months and years will determine how history judges our formula, but we believe that the Cambodian model may also serve as an inspiration for other countries in their search for justice,” Sok An said.
He added that he earnestly hopes “the international community will continue to join with us to enable the court to work appropriately in discharging its historic responsibility.”
Perhaps the top concern for prosecutors was getting nations to help arrest fugitives. Fatou Bensouda, deputy prosecutor at the International Criminal Court in The Hague, said six of the nine warrants issued by the ICC are still outstanding. “There is a dire situation on our hands and it gets worse with each day without an arrest,” she said.
The ICC is the first international court in history to allow victims to be party to judicial proceedings. The ECCC is the second.
Bensouda said the ICC is still working out how to balance victim involvement with the need to hold fair, expeditious trials.
Legacy was also an issue. Prosecutors had more questions than answers about how to handle archival evidence, protect witnesses after the court’s mandate has ended, and handle residual judicial procedures.
“Completing the trial does not mean completing the work of these courts,” ECCC Co-Prosecutor Robert Petit said.
