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Phnom Penh, 23/10/08
Jean-Marc Lavergne, judge at the Trial Court Chamber for the Khmer Rouge trial
© John Vink / Magnum Some ten inches taller than the majority of his colleagues at the Khmer Rouge tribunal, Jean-Marc Lavergne stands out on the group picture taken on September 5th, i.e. last day of the fourth plenary session of the judicial officers for the Extraordinary Chambers in the Courts of Cambodia (ECCC). The French judge, who officiates in the Trial Court Chamber, took his positions in Phnom Penh on July 1st with his wife and son. However, he first set foot in Cambodia in June 2006, when the ECCC magistrates were all called up to the swear-in ceremony. Shortly after that, he took part in the long and tedious drafting of the ECCC internal rules.
The judge showed up in a blue check-fabric shirt, white trousers, white tie, glasses. Like the parlour where the interview was given, he sported an impeccable and sober look. Very welcoming, he revealed at once not being used to interviews and even less to the photographic session we had to put him through, but finally played the game, feeling somewhat ill-at-ease.
The tables are covered with books about Cambodia, the Khmer Rouge regime and Angkor and an ECCC calendar has pride of place on the corner of a dresser.
“A unique experience”
While trying to refrain from laughing, the judge confessed that when he applied to the position of judicial officer for the ECCC, he did not really think he would get the job. This appointment fulfilled his desire to know more about the country and international criminal law - still a “work in progress” - which have both fascinated him for a while. This passion led him to take several courses at the Hague, within the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court.
Was he scared at the idea of taking part in the imposing hybrid judicial machine? The judge admitted plainly that at that time, he felt he was taking on unusual and heavy responsibilities. What motivated him above all was the partaking in a brand new adventure. “Judges rarely work on the constructive process!” The experience is unique and should initiate new processes, particularly when it comes to the future of the system of case investigation before a trial, in international jurisdiction, judge Lavergne pointed out. However, another reason pushed him to apply at the ECCC: the fact that the French and Cambodian judicial systems are rather similar. He stressed that it was no accident that three of the judges who were called up to sit in this tribunal are French.
Common law vs. civil law magistrates: the happy medium of understanding
Judge Lavergne summed up his career in a few sentences: he spent ten years acting as Parole Judge at the High Civil Court of Angers, four years as a presiding judge at the Criminal Appeals Court of Rennes, being in the meantime president of the two Cour d'Assises of Loire Atlantique and Morbihan. He then spent four years as Vice-President of the High Civil Court of Mans, and, just before taking off to Cambodia, acted as a presiding judge at the Criminal Appeals Court of Angers and was president of the Cour d'Assises of the Sarthe region. But with his new position, the rules changed and one question now seems to constantly haunt the judge: “Am I in a position to make people understand me, is there an equivalent in international standards and for my colleagues who follow Common Law regulations?”.
Speaking with circumspection, he admitted that the talks which fuse from all directions in the tribunal could be “captivating” but also “puzzling”... Judge Lavergne was indeed surprised to see that a few details he used to take for granted (i.e. in the field of Civil Law, or Romano-Germanic law) were not that obvious to his colleagues, who mainly follow the Common Law system. This misunderstanding could go as far as to debating on the meaning of a word, having different connotations depending on the side it was viewed from...
The judge quoted with a smile the huge precaution and discretion of a Common Law judge who shows reluctance about going the Museum of Genocide in Phnom Penh (the former S-21 centre managed by Duch, whose case is currently being prosecuted), for the sole reason that it is a crime scene... “How can Common Law officials use tools that have been designed for Civil Law judges?” This question sums up the problem.
“The confrontation between two legal systems gives way to a sort of open-mindedness which allows us to put a certain amount of established facts back into a wider context and realise that there may be other interesting ways of proceeding. The legal system is not as stiff as we may think!”
The ECCC: running against the clock and a challenged credibility
When asked out of the blue to list the main matters at stake concerning the tribunal, the judge spontaneously answered that the “all so challenging problem of time” was an issue, i.e. judging facts that were committed more than 30 years ago, frail defendants growing very old and dealing with witnesses who are ageing too. On top of that reside the expectations of millions of Cambodians eager to see that the judicial machine is actually working and doing an effective job. And even more important is, according to the judge, “the anxiety we feel about making the proceedings go ahead in the best way possible so as to avoid delays which can seem to be illogical and difficult to understand for the public. But these are the results of rules which we are compelled to apply”.
The second challenge, the judge went on, is to “make everyone understand you”. “The success of the ECCC will depend a lot on the trust that the Cambodian people will put into us.” As for his Cambodian counterparts, the judge reckons they wonder how such wide public trials will be looked after and managed. “They know that the trial will be widely watched and that a lot is expected from them. Therefore they harbour a high sense of responsibility and not disappointing people is seen as a very fundamental duty.” Shortly after this, he added that they “are conscious that there is a lot of credibility for them to gain in the whole process”.
The judge carried onto the allegations of bribery within the ECCC, “the unavoidable topic”, as he called it. “We said several times that we pay much heed to this subject since we mean this trial to be fair.” Judge Silvia Cartwright from New-Zealand, who works with him at the Trial Court Chamber, clearly mentioned it at the opening of the fourth plenary session of judicial officers on September 1st, he insisted on stressing.
Juggling with the topics, the interview went from challenges onto the dangerous pitfalls that the ECCC may encounter and should avoid in order to stay on track. According to the judge, the first mistake would be to “cumulate the drawbacks of both legal systems. [...] Then, what we call the Milosevic syndrome [he died before the beginning of his trial], which left a mark on people's minds and is still omnipresent. Even if time is a real challenge, we cannot allow ourselves to act without thinking.” As for the problem of overall translation, according to him, when the ECCC were set up, the amount of work implied by the use of three official working languages, Khmer, English and French, was definitely underestimated. He asserted with confidence that all would not be translated, for sure, and believing that it is pie in the sky; the focus must therefore be settled on priorities.
The tribunal is moving in the right direction
To those who claim that the trial will never begin, the judge answered, with a smile, that he “hopes they are wrong” and backed up his thought with facts: “Let us not forget that this jurisdiction is the first of its kind, as it is international. The victims will benefit from the status of civil parties at the trial and will be entitled to rights! [...] A challenge is never easy to win when the matters at stake are charges of mass murder and when the number of persons it affected is massive. This is why we aimed at clarifying this issue and thus introduced the possibility of a gathering of all the civil parties together, as a core. Could you imagine a trial with 2,000 people acting like free spirits? It would be very difficult to manage and this would even work against the interest of the victims. Besides, the demands of financial compensation will clearly not be met. What has been agreed is that the compensation will be of a moral and collective nature. And there again, we will have to prove inventive since this situation is a first – but there is some room for creation!”
As a last notice for the attention of the most pessimistic ones, the determined judge asserted that “in 2006, very few people would have thought that five individuals would be arrested, those people who now have to answer for serious accusations and had important responsibilities [under the Khmer Rouge regime]. It may be hard to see how things evolve on a day-to-day basis, but we work with the constant goal of ensuring the best case preparations for trial, which should begin some time between January and the end of March next year.” Until then, the Trial Court Chamber will be working on the odd 80,000 pages of the first file (Duch and S-21) for the first planned trial.
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