Hiroto Fujiwara, OCIJ International Analyst Team Leader

Hiroto Fujiwara, OCIJ International Analyst Team Leader

VOICES FROM THE ECCC (Extraordinary Chambers in the Court of Cambodia)/THE KHMER ROUGE TRIBUNAL.

1. Can you state your name and position, and provide a brief summary of your basic responsibilities at the ECCC?
2. What brought you to the ECCC in this role?
3. Tell us about your work with the ECCC. What was a typical day like for you? How did you interact with other ECCC personnel?
4. What challenges did you face in your role?
5. This isn’t your first time working for an international tribunal. You were also an analyst for the International Criminal Tribunal for former Yugoslavia. Were there any differences between this court and the ECCC?
6. Are there any lessons learned, best practices, or recommendations based on your time at the ECCC that might be helpful for future international tribunals?
7. Based on your work at the ECCC, what do you see to be significant challenges for future courts handling mass atrocities?
8. Can you recall any experiences at the ECCC that changed your perspective?
9. Keeping within the boundaries of what has been released to the public: can you recall any accused or survivor stories that resonated with you?
10. What do you think the major impacts of the ECCC will be, both today and, say, 20 years in the future?

Photo by San Bunsim, July 19, 2019

by Youk Chhang
30 June 2019

The impending closure of the Office of Co-Investigating Judges (OCIJ) marks the end of one chapter in the legacy of the Extraordinary Chambers in the Courts of Cambodia (ECCC).  As we mark the end of OCIJ investigations, it is only proper that we reflect on OCIJ’s work and the greater enterprise that we call justice.

Although trials, on a fundamental level, determine the guilt or innocence of individuals, their role in society must extend to other functions, both practical and meaningful.  The success or failure of a court depends not only on costs and convictions, and the credibility of its judgments, but also the extent to which it contributes to the development of civil society and the maturity of the public consciousness.

In many ways, the ECCC has achieved these broader endeavors. Through the concerted effort of giving victims a limited opportunity to speak, question, and participate in the trials of the accused, the ECCC has supported the empowerment of victims and contributed to the public’s understanding of, and appreciation for, human rights. The ECCC has also contributed to the professional development of judges, attorneys, and other staff of both sides, and it has improved the public’s knowledge of the history surrounding the Khmer Rouge regime.

However, a court’s impact on civil society does not stop with these examples.  Courts, and particularly international courts in post-conflict countries, must stand as beacons for civilization, truth, and the rule of law.  As beacons for the rule of law, courts should be above reproach in practice, and, in theory, international courts in post-conflict countries should support the country’s efforts to pick up where the court left off when its operations end. Unfortunately, the OCIJ has not entirely supported these endeavors.  Rather than facilitating the search for truth, the OCIJ muddled its mission under a veil of legal discourse.

There are few other civil society organizations that have supported the ECCC’s establishment and work more than the Documentation Center of Cambodia (DC-Cam).  For over two decades, DC-Cam has worked tirelessly to ensure the history of the Khmer Rouge regime is collected and preserved for future generations.  The ECCC, and particularly the OCIJ, has benefited from DC-Cam’s work.  DC-Cam’s work in collecting and preserving documents, images, and audio-visual materials prevented the loss of these records before the ECCC was established, and DC-Cam’s ongoing work in collecting documentary and oral history has helped the OCIJ in its search for potential witnesses. Yet rather than accepting and endorsing DC-Cam’s work in historical research, the OCIJ interpreted DC-Cam as an impediment or rival to its efforts.

Under the purported rationale of witness protection and preserving witness confidentiality, the OCIJ requested DC-Cam to provide it with lists of any prospective interviewees for pre-approval by the OCIJ.  In addition, the OCIJ regularly asked DC-Cam for lists of individuals that it had interviewed in previous years.  In the same way that DC-Cam has offered up its records to other officers of the court and members of the public, DC-Cam provided the OCIJ with lists of its interviews as well as any transcript or other record upon request.  DC-Cam also offered research assistance by way of volunteering the services of a senior research assistant.

During another episode of working with OCIJ, DC-Cam encountered an embarrassing situation, prompted by OCIJ incompetence, which resulted in claims of secret DC-Cam files.  During OCIJ’s research of various Khmer Rouge records, OCIJ became aware of a large Khmer Rouge security archives.  The archives came into the possession of a Ministry of the Cambodian government who transferred the entire archive to DC-Cam many years before the ECCC was even formed.  Rather than discussing the archives with DC-Cam, OCIJ elevated their concerns of secret files, which prompted an inquiry into whether DC-Cam had withheld these files from OCIJ.  In an awkward revelation, OCIJ (and the United Nations) was informed that it had received these files from DC-Cam many years prior (in 2008), and it had misidentified them due to cataloguing errors.

DC-Cam was also troubled by the OCIJ’s use of DC-Cam images (some of which were personally taken by DC-Cam staff).  Images and other records posted to DC-Cam’s website were used in OCIJ’s closing orders without even nominal credit either to the organization or the individuals.  As DC-Cam stated in numerous correspondence to the OCIJ on this matter, DC-Cam was pleased that its work contributed to OCIJ’s investigations; however, having its work at least nominally recognized should be the standard rather than the exception.

International organizations that operate in post-conflict countries must encourage efforts that support the country’s peaceful transition to democracy and the rule of law.  This means that international courts in post-conflict countries should support the country’s efforts to conduct research well after the court’s operations end and international staff should conduct themselves in the highest standards.

International courts and officials must also set the example on how law-abiding institutions and its personnel should operate.  Cambodia may not have cultivated the necessary respect for intellectual property as other developed countries in the world, but one’s geographic location should not be an excuse for meeting the highest standards of one’s office.

Cambodia’s future depends on not only the justice process endorsed by the ECCC, but also the values, norms, and competency exercised by its officials.  It is unfortunate that certain offices and officers of the court have not upheld the sacred standard of the institution.

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