Stanford experts find flaws in Khmer Rouge Tribunal judgment

The Khmer Rouge Tribunal, which convicted senior leaders of the communist Khmer Rouge regime for alleged violations of international law, made serious mistakes in its trial process and final judgment, according to a new report by Stanford experts.

The tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia, was set up to examine the serious crimes perpetrated during the Cambodian genocide in the 1970s. An estimated 1.7 million people died during this period as a result of starvation, torture, execution and forced labor.

In 2014, the tribunal issued a ruling in the first case against Nuon Chea, 88, former chairman of the Democratic Kampuchea National Assembly and deputy secretary of the Communist Party of Kampuchea, and Khieu Samphan, 84, former head of state of Democratic Kampuchea. It found them guilty of crimes against humanity and sentenced them both to life imprisonment.

However, “flaws in the trial process and the final judgment overshadow the verdicts against the two Khmer Rouge leaders,” wrote David Cohen, Penelope Van Tuyl and Melanie Hyde in a report from Stanford’s WSD HANDA Center for Human Rights and International Justice.

Organizational problems

In a detailed critique of the the tribunal’s judgment, the authors found that it was “poorly written and well below the standard of most of the other international criminal tribunals.” It offers a “poorly organized, meandering narrative in lieu of clearly structured legal writing based upon a thorough and balanced analysis of the legal and factual issues in dispute,” they wrote.

Beyond the structure and organization of the judgment, the Stanford researchers also criticize its “liability assessment.” In doing so, they cited questionable foundations in law; a weak foundation for factual findings; conflicting accounts and internal inconsistencies; a lack of systematic analysis in highly consequential sections of factual findings; and the poor application of law to facts, among other issues.

“Again and again, the judgment draws inferences from a factual narrative that assumes rather than justifies the validity of those inferences,” they wrote. This is particularly apparent, they argued, when the judgment infers that Nuon Chea and Khieu Samphan participated in key meetings of the Khmer Rouge leadership, even though the evidence about their attendance was incomplete and often contradictory.

“Almost entirely lacking in the chamber’s treatment of this evidence is an analysis of whether those inferences and their factual basis meet the reasonable beyond doubt standard of proof according to the systematic application of criteria for assessing credibility and probative value,” the authors wrote.

Through the Stanford center’s trial monitoring program in Cambodia, which provided weekly updates on the trial from researchers and Stanford students, the authors observed several flaws in the trial procedure that contributed to the “troubled” final judgment.

For example, the report noted a highly controversial move at the beginning of the trial when the judges decided to separate the charges in the case into a series of smaller trials, divided by subject matter. According to the researchers, the judges did this because they were concerned about the size and scope of the case, the age and ill health of the accused leaders, and the court’s ability to complete the trial.

However, all parties involved complained of a “lack of clarity” in this severance order, which was annulled and then reinstated over the course of the trial, causing confusion, triggering new trial management challenges and creating more inefficiency in the end, according to the report.

Another cause of procedural controversy were repeated concerns expressed at trial over the court’s treatment of documentary evidence, which “struggled to balance the sometimes competing imperatives of efficiency and fairness,” the authors wrote.

For example, the tribunal decided to admit a large body of prior statements into evidence without calling these witnesses to testify in court, thus leaving this evidence largely untested.

“The confusion of severance, combined with a serious erosion of confrontation rights and the persistent failure of the judgment to carefully weigh and analyze the probative value of the evidence, give ample reason to question the soundness and legitimacy of the factual and legal findings in the judgment,” they wrote.

‘Ripple effects’

Furthermore, the poor quality of the judgment “raises concerns about fair trial rights” and “cannot be ignored,” the authors warned. “The judgment of one tribunal, well-reasoned or not, will certainly have ripple effects that affect subsequent decisions in other tribunals.”

They hope that the report will provide the basis for addressing these concerns in future cases and trials at the Extraordinary Chambers in the Courts of Cambodia (ECCC).

“Internationally backed criminal tribunals can, and must, be expected to achieve the highest professional standards,” said Van Tuyl, a human rights attorney who serves as the Handa Center’s associate director.

“To the extent that we focus on the shortcomings of Case 002/01 in our report, we do so believing that earnest, constructive criticism is indispensable to building stronger, more legitimate institutions in the long run,” Van Tuyl added.

The Handa Center will continue to observe and report on the proceedings at the ECCC through its trial-monitoring program, “in order to promote and constructively contribute to institutional growth and improvement in the field of international criminal justice,” said Cohen, director of the center.

Both Cohen and Van Tuyl said that Stanford students interested in summer internships as trial monitors in Cambodia are invited to apply through the Stanford Global Studies internship program.