Judges at the Extraordinary Chambers in the Courts of Cambodia will be entering uncharted legal waters Thursday, when they rule on whether civil parties can participate in pretrial detention hearings.
It sounds dry, but on some level the question pits legal philosophy against deep human desire.
Prosecutors, civil parties, the defense and civil society groups have all submitted briefs on the issue. From the mass of case law they offer up, two essential questions emerge: How does a court balance the rights of defendants and victims? And should a court confine itself strictly to questions of criminal guilt and innocence or might it pursue that more elusive goal: reconciliation?
For the defense, the reigning principles of the ECCC must be the defendants’ right to a fair and speedy trial and the presumption of innocence.
“This Chamber is now presented with the opportunity to ensure that these fundamental rights are not unnecessarily subordinated to the perceived symbolic and/or historical considerations of civil-party participation,” lawyers for Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith argued in their joint brief.
“[I]t is submitted that the primary concern of this tribunal is the criminal prosecution of the accused persons in accordance with the law of Cambodia,” they added.
In support of this strict interpretation of the court’s mandate, they cite no less a moral authority than the German-Jewish political theorist Hannah Arendt, writing in “Eichmann in Jerusalem”: “The purpose of a [criminal] trial is to render justice, and nothing else; even the noblest of ulterior purposes…can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.”
But is that really all a court of law can do?
Some said no. And they suggest that with the International Criminal Court in The Hague, and now the ECCC, that model may evolve.
Christoph Safferling, a German law professor, writing in an amicus brief, said that “at the ICC the aim of the trial is also to give to the victims a forum to bring their suffering to public attention.”
“This is a new approach to criminal procedure, relying on the psychological hypotheses that the integration into a criminal trial process has a cathartic effect,” he said.
In their brief arguing for regulated civil party participation in pretrial detention hearings, tribunal prosecutors also conjured the court’s ability to do social work. “At a broader level, victims’ participation brings credibility to criminal proceedings, plays a crucial educational role and contributes to reconciliation in the post-conflict societies like Cambodia,” they wrote.
The Redress Trust, the International Federation of Human Rights (FIDH) and Avocats Sans Frontieres, similarly argued that: “The ability for victims to participate as civil parties also recognizes the relevance of giving voice to victims’ unfiltered concerns and perspectives…. Equally, it recognizes the importance of affording a process in which the harm victims suffered is formally acknowledged by the ECCC.”
They maintain that trials must be fair to defendants and victims alike. “To arbitrarily deny civil parties from the opportunity to present their views and concerns at this vital stage which affects their personal interests would indeed be contrary to the principles of justice and fairness,” they wrote.
The defense also argues that civil party participation in provisional detention hearings is “categorically prohibited” under Cambodian law.
However, civil party lawyers, the prosecution, and most of the amicus briefs said just the opposite.
How a categorical prohibition could be interpreted in such wildly differing ways is a ponderous question, one that practitioners of international law will likely be interested to see the tribunal’s Pre-Trial Chamber decide Thursday.
No other court has ever given victims such far-reaching rights, and ECCC decisions on the matter could well have international ramifications.
Unlike other courts, the ECCC allows victims to be parties to legal proceedings, giving them, in principle, rights that extend beyond even those afforded victims at the International Criminal Court.
Much ink has been spilled at the ICC over when and how to incorporate victims without compromising defendants’ rights and undermining the efficiency of the court.
The ICC has allowed victims to weigh in on the question of detention, but only after they’d demonstrated they have a vested interest in the matter. In one key case, often cited in the briefs, ICC judges noted victim concerns but ultimately deemed them irrelevant to the question of pretrial detention.
ECCC defense lawyers maintain that civil party attorneys added little to the proceedings in Nuon Chea’s February detention appeal hearings.
“[T]he record will reflect that nearly two hours was spent simply repeating previously articulated arguments,” they wrote in their joint brief to the court.
Worse, they said, the testimony of civil party Theary Seng, who suggested that the accused was responsible for the deaths of her parents, had nothing to do with the question of whether Nuon Chea should remain in jail. However, they said it did have a lot to do with a prejudicial question that wasn’t even supposed to be decided at the hearing: his guilt.
“[T]he Defense submits that Ms Seng’s remarks, however heartfelt, militate strongly against civil-party participation in appeals on provisional detention,” they wrote.
Others argue that victims with properly channeled sorrow can add a lot to the legal process, even at its earliest stages.
Civil society groups and prosecutors pointed out that victims are likely to know the most about the crimes at hand and their ongoing human toll. This means, prosecutors wrote, that “they more than anybody else can inform the court of issues of trauma of victims and witnesses, disturbance to public order, influencing of victims and witnesses, destruction of evidence; issues that are directly relevant to the consideration of provisional detention.”
Redress, FIDH and ASF went further, arguing that unmediated victim participation can be an important check on the work of prosecutors. Failure to listen to victims at early stages of prosecution hindered the prosecution of key crimes such as sexual violence at both the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, they said.
Ultimately, the defense and prosecution each offered differing ideas on how to best regulate victim participation effectively, and thus keep the ECCC, which is already behind schedule and facing a budget crisis, from grinding to an unhelpful halt.
The defense was also at pains to defend itself.
“Rather than an existential threat to civil-party actions at the ECCC, the Defense position should be seen for what it is—a logical and practical reflection of the existing law,” they wrote.
The defense didn’t even dismiss the idea that a court might legitimately give a voice to victims and go some therapeutic distance toward acknowledging their suffering. Rather, they say there is a time and a place for even the greatest mourning.
The tribunal’s presumed powers of reconciliation will not, they wrote, “in any way be diminished by excluding civil parties from proceedings related to provisional detention.”