Gendering the Khmer Rouge period: last Friday’s judgment

Rosemary Grey, University of Sydney Postdoctoral Fellow (Sydney Law School & Sydney Southeast Asia Center)

PP cambodia

Photo: Phonm Penh, November 2018 (author)

On 17 April 1975, Khmer Rouge troops poured into Phnom Penh and began forcing its population into the countryside, marking the start of an oppressive regime that left around 2 million people dead in just under four years.

Last Friday in that same city, the Extraordinary Chambers in the Courts of the Cambodia (ECCC) convicted two leaders of that regime for grave breaches of the Geneva Conventions, crimes against humanity, and genocide.

Thus concluded the trial phase of the ECCC’s second case, which due to its enormity and the fading health of the accused, has been run in two segments (known as ‘Case 002/1’ and ‘Case 002/2’).

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Work On! Internships at the ECCC- Office of the International Co-Investigating Judge

Looking for a job?

Graduated from law school?

Interested in international criminal law?

Interested in experiencing cutting-edge investigative work concerning the crimes committed during the Khmer Rouge regime?

Then check out this announcement: ECCC Call for Applicants!

IHL Dialogs: Prosecutors’ International Criminal Law Round-Up

I had the pleasure of attending the 2014 IHL Dialogs last week in lovely Chautauqua, NY.  The event—co-hosted by IntLawGrrls, the Robert J. Jackson Center, the American Bar Association, and the American Society of International Law (among others)—is an annual gathering of international criminal law professionals, government officials, and academics in a relaxed setting to take stock of the field, evaluate recent developments, and think about how the international justice system will and should develop in the future.  We’ve covered prior Dialogs in the past on these pages (see here and here).

The Gambia Trialprosecutors IMG_6580

The event began with a fascinating discussion at the Robert H. Jackson Center about one of the first efforts at hybrid justice: the 1981 trials of would-be coup leaders in the Gambia.  The coup, staged by local actors, was rumored to be part of a Pan-African Marxist conspiracy spearheaded by Muammar Gaddafi.  In response, the Gambia invoked a mutual defense pact with Senegal, whose troops helped to quickly oust the rebels.  Thousands of people were detained in connection with the uprising. Fearing that key members of the government and judiciary had been involved in the attempt, the Gambia established special tribunals staffed by lawyers and judges from the British Commonwealth to assess the legality of the detentions and prosecute those who were deemed most responsible.  All told, 45 people were tried in 4 years.

The conversation at the Jackson Center involved Hassan Jallow (ICTR Chief Prosecutor) and Fatou Bensouda (ICC Chief Prosecutor), who were young Gambian professionals working in the judicial system at the time, and Sir Desmond Da Silva (United Kingdom) who, as an expert on the 1351 English Treason Act, was seconded to help with the trial. Jallow covers the event in more detail in his recently-published memoire, Journey for Justice.

Ambassador Tiina Intelmann on the Worrisome State of International Justice

Ambassador Tiina Intelmann (Estonia), President of the ICC’s Assembly of States Parties (ASP), gave a sobering keynote address at the Chautauqua Institution about the state of international justice.  (The YouTube video is here). Intelmann observed that the security situation in the world changed dramatically over the summer, suggesting that Francis Fukuyama was prematurely optimistic in his essay, The End of History.  She noted that the ICC was established during the peek of global optimism and unanimity about the prospects of international justice, but surmised that such an effort would fail if it were attempted today.  Although the number of cases before the Court (21), the range of situations being referred to the Court (8), and the number of requests for the Court to get involved in conflicted areas around the world (1000s) have reached unprecedented levels, support for the Court is waning in some circles.  This is true most notably among certain members of the African Union, who have indicated that maintaining cooperation and a positive attitude toward the Court mayTiina IMG_6507 generate economic and political problems.  She cautioned that this ambivalence is not limited to Africa, however.  Even though one European country has annexed part of another European country, some European states—including long-time supporters of the Court and of international law—are “remaining neutral” and raising concerns about the local impact of the sanctions that have been imposed.   She observed that when complicated situations come closer to home, states start thinking more parochially about their own national interests.

Ambassador Intelmann also argued that while Article 27 of the ICC Statute—withholding immunities traditionally enjoyed by heads of state—was a major achievement in Rome, the Kenya and Darfur situations reveal that prosecuting sitting heads of state is not something the international community is very good at.  She lamented the fact that the ASP, which was designed as an administrative body to deal with budgetary and other more quotidien issues, turned itself into a political body at its last session when considering proposals to undo Article 27 and limit the Court’s ability to prosecute heads of state.  These proposals remain on the table and will likely appear on the ASP’s agenda again soon.

Prosecutors’ Roundup

A highlight of the IHL Dialogs is always the prosecutors’ roundup, which is followed by a year-in-review offered by a leading ICL academic.  Professor and Dean Valerie Oosterveld of Western Law in Ontario, Canada, delivered the 2014 ICL Year in Review.  The material below is a composite of several panels convened over the course of the Dialogs that covers some highlights of the year’s events.   Continue reading

U.S. v. Cambodian Sculpture: 3 Years Later

U.S. v.  Cambodian Sculpture: 3 Years Later

Exactly 3 years ago today, this thousand year old Khmer masterpiece was put on the auction block at Sotheby’s, where it was expected to fetch $3 million. It was pulled from sale when Cambodia demanded its return, citing evidence it had been looted during the country’s bloody civil war. 6 weeks later, the US government filed a civil forfeiture action, seeking to recover and repatriate the statue. This litigation made headlines around the world, and was only resolved 3 months ago, when Sotheby’s settled. To learn more about the case — U.S. v. 10th-century Cambodian Sandstone Sculpture — click the photo and visit the New York Times.

The US Takes on Antiquities Trafficking (And Why You Should Care)

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A Cambodian boy looks across the Mekong Delta to the temple of Phnom Da.

As the World Economic Forum concludes, in an editorial on the Huffington Post, my colleague Mark Vlasic and I have urged the political leaders attending Davos to pay heed to an international criminal industry that is costing the world billions in financial losses, and more irreparably, destroying something with no price tag: our cultural heritage.

Right now looters are reducing countless ancient sites to rubble in their search for buried treasures to sell on the art market. The ensuing trafficking of antiquities and other stolen cultural objects reaches every corner of the globe, and experts fear, may be funding organized crime and terrorist groups. It is also a very attractive way to clean “dirty” assets in the face of otherwise strengthened anti-money laundering and counter-terrorism financing laws, which as former United States prosecutor Rick St. Hilaire notes, “are often limited when it comes to the trade in cultural property.”

For these very practical reasons, the U.S. Homeland Security Investigations (HSI), Department of Justice (DOJ), and Federal Bureau of Investigation (FBI) — as well as foreign and international law enforcement such as Scotland Yard and Interpol — are now prioritizing their efforts to fight antiquities trafficking. U.S. agents and attorneys in particular have had a recent string of successes on this front. Just this month the federal government returned $1.5 million worth of plundered statues to India. And last month, it celebrated another victory when Sotheby’s Auction House agreed to repatriate a $3 million masterpiece to Cambodia, which had been hacked by thieves from a sacred temple during the country’s bloody civil war (both stories were reported by Tom Mashberg in the New York Times here and here).

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Write On! The Cambodia Law and Policy Journal

The Documentation Center of Cambodia (DC-Cam) is pleased to announce Cambodia’s first bi-annual academic journal published in English and Khmer: The Cambodia Law and Policy Journal (CLPJ).

DC-Cam strongly believes that empowering Cambodians to make informed demands for change will strengthen the rule of law in Cambodia and other Southeast Asian countries. As empowerment for change requires awareness and dialogue, CLPJ’s mission is to promote scholarship and discussion of urgent legal, social, and development issues facing the Southeast Asian region.

CLPJ welcomes article submissions on these topics as well as more general discussion and commentary on human rights and transitional justice issues in post-conflict settings.

DC-Cam is an independent Cambodian-staffed research institute that began as a field office of Yale University’s Cambodian Genocide Program. The Center’s programs educate Cambodians about the Khmer Rouge era (1975-1979), and record and preserve physical and oral history from that time. DC-Cam’s archives hold the world’s largest collection of Khmer Rouge documentation and serve as a primary source of evidence for the hybrid national/international Extraordinary Chambers in the Courts of Cambodia (ECCC).

DC-Cam is in the process of transforming itself into the premier Asian center for conflict and human rights studies, to be called the Sleuk Rith Institute. Acclaimed London-based architect Zaha Hadid, 2004 recipient of the Pritzker Architecture Prize, is working with DC-Cam on its physical design, which will house a museum, research center, and a graduate studies program. The Cambodia Law and Policy Journal, part of the Center’s Witnessing Justice Project, will be the Institute’s core academic publication.

ARTICLE SUBMISSIONS: The CLPJ is now accepting articles relevant to urgent legal, social, and development issues facing the Southeast Asian region for peer review and publication in print and online. Traditional academic articles on a wide range of topics including justice, governance, labor, education, business, land ownership, and natural resource development are welcome. Nontraditional formats such as narrative, commentary, interview, essay, and artwork are also encouraged.

STUDENT EDITORS: The CLPJ is seeking graduate and law students to assist with periodic editing of articles. No financial compensation will be provided; this is an opportunity to help a renowned Cambodian organization galvanize analytical debate and scholarship in Cambodia and the Southeast Asia region.

Article submissions and/or letters of interest regarding journal editing should be sent to Anne Heindel, Editor-In-Chief, Cambodia Law and Policy Journal, at cambodialpj [at] gmail.com.

For more information, visit http://www.dccam.org.

Tempest over a Temple 2

The International Court of Justice recently issued a final judgment in The Case Concerning The Temple Of Preah Vihear, Request For Interpretation Of The Judgment Of 15 June 1962 (Cambodia v. Thailand) (the full case docket is here).  The judgment confirms (again) that the contested temple is on the territory of Cambodia, although leaves open the question of the territory around the temple.  Newspapers initially reported that both countries were satisfied with the ruling; now, it seems that Thailand wants to “negotiate further on the issue with Cambodia.”

Although not of the global importance as the situation in Syria or Iran, this case can be counted as a provisional win for the ICJ and for the processes of international dispute resolution.  As we’ve discussed in the past (here) the origins of the dispute can be traced to Thai domestic politics more than anything else.  The ICJ offered a neutral forum where the parties could outsource the dispute, give everyone involved some breathing room, and allow for the political situation in Thailand to normalize.  It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.

Round 1 at the International Court of Justice

By way of background, the ICJ first took up the case upon a 1959 application by Cambodia after Thai forces occupied the temple area in 1954.  In that earlier opinion, issued in June 1962, the Court had declared that

the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

notwithstanding that the temple, being on an escarpment, is geographically more accessible from Thailand and on the Thai side of a natural watershed that otherwise demarcates the border between the two countries.  Interestingly, the Court did not consider Cambodia’s cultural claims to the 11th century temple, which was built by the same Khmer royalty who are responsible for the spectacular Angkor Wat temple complexes.

The ruling was premised in part on interpretations of French maps, drawn up in 1907 by the Franco-Siamese Mixed Commission, which placed the territory in Cambodia.  Thailand had helped generate these maps, and subsequently used them for its own purposes until its 1954 occupation of the area.  Because Thailand had originally relied on the 1907 maps, suggesting an acceptance of their contents, international lawyers normally cite the ICJ’s 1962 judgment for the principle of estoppel, which the court identified as a general principle of law as contemplated by Article 38(1)(c) of its statute.

UNESCO Enters the Fray

Preah Vihear TempleThailand withdrew from the temple complex following the 1962 judgment.  Cambodia generally enjoyed uncontested sovereignty over the temple until recently.  In 2007, Cambodia successfully requested that UNESCO list Preah Vihear as a World Heritage Site, one of two in Cambodia.  The map Cambodia provided to UNESCO included part of the promontory on the Cambodian side of the border.  Nationalist political parties in Thailand protested the move, leading to Thailand’s withdrawal from both the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage and the World Heritage Committee.  These protests were part of the unrest that led to the 2008 Thai political crisis.  At the same time, Thai and Cambodian forces clashed along the borders, displacing thousands of civilians and requiring the temple to be closed to tourism.  In February 2011, Cambodia brought the conflict to the attention of the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations (ASEAN) to find a solution.

Round 2 at the International Court of Justice

In April 2011, Cambodia requested that the ICJ, pursuant to Article 60 of its statute, interpret its original 1962 judgment.  Thailand advanced the argument that the original ICJ opinion related only to the temple itself (and the immediate vicinity), and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the Court did not delineate the entire frontier between the countries, which remains contested.  Cambodia countered that by determining that the temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least with regard to the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original ICJ opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.

On July 18, 2011, the International Court of Justice ordered provisional measures in the Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand).  Made pursuant to Article 41 of the ICJ Statute, provisional measures are akin to the issuance of a preliminary injunction in U.S. litigation practice.  The measures were premised on findings that:

  • the rights asserted by Cambodia were at least plausible;
  • the rights from which the request for provisional measures derive from the earlier judgment;
  • a link exists between the alleged rights and the provisional measures sought; and
  • irreparable prejudice could be caused to those rights.

Thus the ICJ ordered, inter alia, that

all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia.

The Court then defined this zone with reference to particular coordinates. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone.

Round 3 at the International Court of Justice

The Court unanimously ruled this week on the merits of the dispute.  In keeping with its earlier provision measures, the Court held that the 1962 judgment only addressed a dispute regarding territorial sovereignty over the temple and area on which it is located; it was not delimiting the entire frontier or assigning sovereignty over the entire escarpment or nearby geographic features.  Nor did it indicate where Thai troops should withdraw to; rather, it simply indicated that they should withdraw from the temple area.

It remains to be seen whether nationalist forces within Thailand will accept the ruling, or insist that the government repudiate it.  There are apparently plans afoot to jointly develop the area.  Having been to Cambodia dozens of time, I still have yet to see this architectural and historical marvel, which has been generally off limits to tourists.  Let’s hope these moderate impulses prevail…