Global Diligence Welcomes the Termination of the Case Against AO An at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”)

"Legal stalemates are indicative of failure of the judicial system to provide remedies"

(ECCC Supreme Court Chamber, 10 August 2020)

Global Diligence LLP welcomes the ECCC Supreme Court Chamber’s decision, of 10 August 2020, to terminate the case against AO An, who was charged with genocide and crimes against humanity.

After 13 years of proceedings, scarred by internal disagreements and procedural dysfunction, a measure of justice has finally been done. Global Diligence lawyers, Richard J Rogers and Alexandre Prezanti, are part of AO An’s defence team.

The case against AO An should never have gone this far. The Co-Prosecutors should have agreed on their suspect list, but instead doggedly pursued unworkable, opposing positions. The Co-Investigating Judges should have used the built-in dispute procedure, but instead issued conflicting orders – one to dismiss the case and one to indict – now ruled illegal. The Pre-Trial Chamber should have resolved the conflict through inherent powers, but instead simply criticised the Co-Investigating Judges. And the Trial Chamber should have offered a solution, but instead shied away.

At every level, up to and until the Supreme Court Chamber, the national and international prosecutors and judges preferred to maintain their irreconcilable positions, rather than doing what justice required – ensuring respect for the rights of the defendants and victims, legal certainty, and clarity. Whilst the court’s dysfunction has been obvious for over a decade, it has been conveniently hidden from public scrutiny due to the ‘secrecy of the investigation.’ This misused secrecy, combined with a misguided super-majority voting system, allowed the judicial officers to pursue a case for 13 years, against a man (supposedly) presumed innocent, despite the fact that, throughout the entire process, the majority of judges ruled that the case should be dismissed. The legal stalemate was not only a failure of the system, but also of the judicial actors.

Justice demanded a robust and fair mechanism to address the horrific crimes of the Khmer Rouge. Whatever the alleged crimes, no suspect should be put through legal proceedings that are knowingly unfit for purpose; and no victims should be promised a day in court that cannot be delivered. The United Nations should never again offer its stamp of approval to a judicial process that is so fundamentally flawed from the outset.