This week, we spoke to Andrew Boyle, who works in the Office of the Co-Prosecutors, across the trial, and in the appeal, in case 002, and, in the investigation of cases 003, and 004. He does a variety of work, in and out of the courtroom, and enjoys the diverse aspects of what he does. The son of a diplomat, Boyle found himself at ECCC, through career progression, from the ICTR (International Criminal Tribunal for Rwanda), and through an interest in Cambodia, from visiting here as a tourist in 2001. I spoke to him about his position in the court, and his perspectives in the courtroom.
What do you find frustrating about the ECCC?
“One thing, which is less of a problem now, but has been in the past, is that there have been funding problems, which have resulted in strikes, in some of the offices, and has involved some of the national counterparts not receiving their salary. This is not only unfair, but creates tension in the office.
“Sometimes, also, the pace of things moves slower than I would like, and there are explanations for this; there are delays due to health problems; for example one of the accused will go to the hospital, and we’ll have to wait until they’re out, to continue. Age and time can also prevent the trial of some individuals, as happened with Ieng Sary and Ieng Thirith, and with some of the suspects in the investigations; this is frustrating when you want the case to follow its natural course, but people are dying, and suffering from dementia”.
Do you find it difficult questioning people when there is a cross-cultural barrier?
“Part of it is cultural, but part of it is also the language; we sometimes have to re-phrase a question several times, so witnesses can understand us. When someone like myself, who doesn’t speak Khmer, can’t pronounce a person’s name, and you’re asking a witness if they know someone, and they reply that they don’t, but you know they do, you have to try several different attempts at pronunciation, until they finally realise who you’re talking about, but obviously the closer you get to the culture, the easier it is to get information efficiently”.
Has he tried to learn any Khmer?
“I’ve had a number of rather halting attempts at learning Khmer, but life takes over, and that’s one of the biggest regrets of mine; not making more of a concerted effort to learn Khmer from the beginning, but what’s really nice working at this court, rather than some of the other international courts, is that you get to work closely with Cambodians”.
I asked him if he had any sympathy for the Defense.
‘I have respect for the defence attorneys. A good defence is an essential part of any fair and well-functioning court system. When it comes to Accused, I recognize also that they have a right to be presumed innocent until proven guilty. I certainly respect their right to be considered as such.
I hope their ultimate judgements reflect the prosecution position, which I think is correct, but that’s the prerogative of the Trial Chamber, and ultimately the Supreme Court Chamber, so I’ll leave it to them’
So is the prosecution position that the Accused are guilty and should go to prison?
“Well, when you say they are guilty, it’s a bit too broad, because there’s multiple charges involved, and it depends which case you’re working on. In regards to the investigations, our current position is not that the Suspects or Charged Persons are guilty, because the investigation is still ongoing. At the end of the investigation we will put forward what we believe they should go to trial for, but guilt is only assessed at the end of trial and appeal.
When it comes to case 002 /01 (Supreme Court level), our position is that the Accused are guilty of the crimes that they’ve being convicted of by the Trial Chamber, and should go to prison.
If you talk about the trial going on now in Case 002/02, we assess the evidence at end of trial, and make submissions to the Trial Chamber as to what they should be convicted for. Our job, as I see it, is not primarily to put people in prison, but to put forward a sound prosecution. It is up to the Chambers to determine if the individuals are guilty and should go to prison.”
So, whilst it is the defense’s obligation to defend a client, it’s not simply the prosecution’s role to secure a conviction?
“No, we also play a role as a public servant. Our obligation to society is to make our own determinations about what the evidence says. Whilst a defence lawyer is obliged to defend a client, as long as what you’re doing is legal, the prosecution’s job is to uphold the law, and put forward a case for conviction if the evidence warrants it. Once it is determined that an accused should be convicted, our job is to put forward what should be the best case to prosecute them; not to get a conviction at all costs”.
What would you say the role of the court is in terms of bringing to light the truth, from the history, as well as assessing the culpability of the Accused?
“There is a certain amount of broad historical truth-finding that historians may want, and, some victims may want out of the ECCC. What the goal, or goals, of an international tribunal should be is a common and oft-debated question; is it retribution, historical exposition, healing wounds? Obviously long after this court shuts, the information determined from the investigations and trials will provide a repository that is much more valuable for research purposes than what was available before the court started, so in that way this court will undoubtedly contribute to history. This is a civil law court, so there is strong truth-finding obligation on the chamberst, but where information is interesting, but not part of a particular case, we should be less inclined to spend time on it; it may round out the history, but if it’s not within the jurisdiction of the court or included in a particular case, spending too much time on it is not a good use of the court’s time and resources”.
How could the court be better?
“A clearer path forward for the investigations; there are lots of questions right now, and having some clarity would be good”.
How do people react to you working at the court?
“There’s a mix; some people think we are doing a good job, and that it’s worth it; others think that it’s a waste of money. Often people jump at the criticisms of the court, without understanding the full picture”.
Do you agree that we should consider what happened before 1975, and after 1979, when assessing the history?
“You have to make a distinction between telling a history of Cambodia, where everything is connected, and assessing the evidence within the framework of the courts. It’s important to note that in practice all parties want to set temporal limits on the cases. For example, there is a fair amount of evidence of mass killings, just after the court’s temporal jurisdiction ends, at the Kampong Chhnang airport, which I’m pretty sure the Defence would not want brought into the trial. It is accepted that events before and after 1975-79 can inform the courts, even if they are not the events which are being tried. For example, we used evidence in case 002/01 from pre-1975, where the Khmer Rouge emptied other cities, prior to Phnom Penh, not because they should be convicted of these other times, but because they showed a pattern of practice evidencing intent”.
To what extent do you understand the Accused, and do you see them as evil?
“We always want to paint people who do horrible things as incredibly different kinds of people, as if we could never do those things. History shows that that is not true. For me to do my job, I don’t have to portray them as evil; personally I think they are responsible for a lot of bad things that happened, but that doesn’t mean I have to believe there is something incredibly different about them. I can say that their actions were evil, and it is those actions we are prosecuting. A lot of us wouldn’t institute the policies that they implemented, but history has shown that there are more than a few bad apples out there”.
What is the best thing to come out of the court?
“When you talk to the individuals who lived through it, and see their emotional reaction; how meaningful it is to them, that’s what’s best”.
Do you have anything else to share with members of the Public, who are interested in the courts?
“Just that they should come to visit and sit in the public gallery, whilst it’s still here".
Emma Loffler,
Khmer Rouge Tribunal, (ECCC)
Public Affairs Intern