Some years ago, whilst working as a prosecutor at the Extraordinary Chambers in the Courts of Cambodia, I appeared on a Cambodian radio phone-in programme to take questions from listeners about the court. One particular caller sticks in my mind. I was asked what would happen if a convicted accused died in custody before serving his sentence. Could the bones of the deceased be kept in chains in the prison, only to be released to his relatives at the end of the expiry of the jail term?

At that time, I had already lived in Phnom Penh for over eighteen months. I was well aware of the significance in Cambodian Buddhist culture of a proper funeral. The body would be brought back to the family home, where monks would offer prayers for the first few hours after sunrise each day for several days. Subsequent ceremonies were spread over several weeks and months. A failure to observe these rituals would be unthinkable, as it would not only bring shame on the surviving family but would not augur well for the deceased in the next life.

The caller’s point was obvious. Those convicted of Khmer Rouge era atrocities that died before condign punishment had been served should forfeit the right to a proper and timely burial.

Ieng Sary, former Foreign Minister and member of the Standing Committee of the Communist Party of Kampuchea in Democratic Kampuchea from 1975-1979 (better known as the Khmer Rouge regime) died aged 87 on 14 March 2013. He was a little over eighteen months into his public trial at the ECCC, where he was facing charges of genocide, crimes against humanity and war crimes.

Case 002, as it is known, is the centrepiece of the ECCC’s work: the largest trial against the most senior remaining figures of the Khmer Rouge. The trouble is, with Ieng Sary now dead and his wife Ieng Thirith last year having been adjudged mentally unfit to stand trial through dementia, the only surviving defendants in the dock are Nuon Chea, former Deputy Secretary of the CPK, and Khieu Samphan, former DK Head of State. Aged 86 and 82 respectively, their own grip on mortality is tenuous.

Yesterday, at a press conference, the Co-Prosecutors offered the consolation that they believed the end of the trial was only four months away. International Deputy Co-Prosecutor Bill Smith rejected a suggestion that the OCP had overreached itself when submitting the accused should be indicted for more charges than was safe given their age. Smith conceded that it was always a gamble when prosecuting accused of this age that they would die before the process had run its course. Nevertheless, limiting the trial to a single crime site to achieve a quick trial would he said have been unlikely to have satisfied the public. So far so good.

I was not convinced by his follow-up argument, however (apologies if you’re reading this, Bill…). To paraphrase the Deputy Co-Prosecutor’s words, whether we reach the end before an accused dies in some cases may be less important than the fact of holding of a proper process adjudicating allegations against them. Reading through the comments on the website of the Documentation Centre of Cambodia (The People’s Reactions on Ieng Sary’s Death) it’s unlikely that many Cambodians share Smith’s view. ‘It is an insult to justice that Ieng Sary died while the trials are still ongoing. Due to its lack of independence the ECCC is extremely slow and reluctant try more individuals’ said one – these comments were entirely typical.

Less plausibly still however, Smith also made the point that people should focus on the ECCC’s legacy, or as he put it, on the fact that the court process marked the end of impunity in Cambodia for people in power who commit crimes against the people: no matter how old you are, you’re never too old to face justice. Unfortunately, the most relevant (and unpleasant) fact relating to impunity today is that powerful and influential people accused of crimes still buy off the judges to escape justice. The (non) functioning of Cambodia’s modern-day justice system makes a mockery of the claim that the ECCC has brought the end of impunity for the powerful.

The limited ‘end of impunity’ we all believed in (to a greater or lesser extent) when we started work at the ECCC in 2006 related to the belief that ‘some justice is better than none’ for the victims of the Khmer Rouge. Yet as the years have gone by, the inherent weaknesses of the hybrid system have been exposed and the Government’s obstructions to further investigations have prevailed. Not only does it seem that the expensive international experiment is failing as an exemplar to domestic courts for modern-day crimes, even the narrow sense of a symbolic victory over impunity for DK crimes is fading as fast as the life in the remaining defendants.

The failure to bring the accused to justice before their demise cannot of course be laid wholly (or even mostly) at the door of the ECCC. As Bill Smith reminded everyone yesterday, the suspects (as they then were) were delivered to the custody of the hybrid tribunal at an already advanced age and state of considerable ill health. The failures of diplomacy in the 1990s and early 2000s to expedite the creation of the court are partly to blame for this. As are the failures of Cold War politics in the 1980s (and, arguably, the underdeveloped state of international criminal law at the time), when the West’s antipathy towards the Vietnamese-backed post-Khmer Rouge government in Phnom Penh prevented any attempt to seek the arrest and trial of the main suspects when they were in middle age and of sound health.

On 19, August 1979 the Vietnamese PRK Revolutionary Tribunal convicted Ieng Sary in his absence of genocide and sentenced him to death. The trial bore none of the recognised hallmarks of due process and is widely recognised as a sham. It is a great pity – but no great surprise – that history will record this to be the only completed judicial process against him.

Brad Adam of Human Rights Watch has recently argued that there are real questions about the purpose of continuing international UN involvement and donor support for the ECCC. To use Ieng Sary’s death as a reason for the UN to pull out now would add gross insult to grave injury – but the damage to the process was already done in the decades after the Khmer Rouge were driven from power. The shame is that no one acted to bring justice to Cambodia sooner.

With every fresh setback the ECCC faces, the best that one can hope for is that the lessons learned from the entire project do not go unnoticed, and the compound failings over three decades are not re-made in the future of international criminal law.

Yesterday, the Documentation Centre of Cambodia’s website published photographs of the family house and the freshly-swept yard surrounded by frangipani trees to where Ieng Sary’s mortal remains were to be brought. His bones would be unchained at his own funeral. As one DC-Cam interviewee put it, ‘Ieng Sary's death is a loss for the Khmer Rouge tribunal since they were not able to deliver a final judgment on him. His death will be buried alongside the justice that people have waited so long for.’  However extreme such a reaction may sound, the sentiment is a wholly understandable one.

A Law Society event on a cold and wet Thursday evening drew an impressive 200 people to a public debate on how lawyers should be advising their clients on the United Nations Guiding Principles on Business and Human Rights – and how the UNGPs might affect law firms as businesses in their own right. The large turnout was testament to the importance with which the audience viewed the subject matter. Billed under the banner ‘Responsible business for lawyers: balancing the client duty and the UN Guiding Principles on Business and Human Rights,’ the five speakers set about the topic with sometimes contrasting viewpoints.

Moderating the debate was Des Hudson, Chief Executive of the Law Society, who got proceedings underway by suggesting that although the UNGPs did not create any hard legal obligations, they clearly demonstrate how the debate of the corporate impact on human rights is as he put it ‘hotting up.’ Hudson was unequivocal: lawyers will need to know and show that they are aware of the UNGPs when they advise their clients. He added that lawyers play a crucial role in how clients manage their activities, a theme repeated by all the speakers later in the debate.

Anna Triponel, from Professor Ruggie’s organization SHIFT, was the first speaker. She gave a very brief overview of how the UNGPs had come into being, describing the culmination of 6 years of multi-stakeholder consultations as ‘a momentous achievement.’ Triponel explained how the fundamental purpose of the UNGPs was to operationalise what it means in practice for a company to respect human rights. Many major institutions had already bought into the substance of Professor Ruggie’s work – for example, the OECD’s Guidelines for Multinational Enterprises now mirror the wording of the UNGPs insofar as they relate to human rights. Triponel also described how corporate lawyers from 39 jurisdictions (working on a pro bono basis) had been instrumental in helping Ruggie’s team assemble the text of the UNGPs. In noting that lawyers are the first people to whom companies turn when faced with human rights issues, she reminded the audience that law firms are business enterprises in their own right and have discrete human rights responsibilities under the UNGPs.

This theme was developed by the next speaker, Anthony Crockett from Clifford Chance. He made the point that many solicitors’ firms are also MNEs, advising on international business deals the effect of which may potentially impact the human rights of others. To that end, he advised that large firms should assess the areas where their activities may lead to adverse human rights consequences, and ensure processes are in place to avoid, mitigate or remedy these. In terms of what practical steps law firms should take to implement the UNGPs themselves, Crockett stressed the need for individual lawyers to be aware of their content and to advise their clients accordingly. He raised the sobering point that it was entirely possible that a failure to advise clients on the UNGPs could amount to professional negligence.

Nevertheless, he highlighted client confidentiality as a major challenge for developing understanding of the UNGPs. He felt that there would be limited opportunities to share case studies relating to the steps taken to discharge human rights obligations.

Chris Esdaile of human rights claimant specialist solicitors Leigh Day sought to identify how the UNGPs fit into the existing civil and criminal legal framework. In the most basic sense, they clearly require respect for human rights. In practice this could mean five things for lawyers: (1) Refusing to take on new clients if it was suspected that they violated human rights; (2) Considering carefully the nature of advice to give to clients, particularly if the client’s suggested policies were inconsistent with the law firm’s own human rights policy; (3) Terminating the relationship with the client where it was clear that the client company was violating human rights; (4) Questioning their client’s strategy in (for example) pursuing litigation if this conflicted with the philosophy of the UNGPs; and (5) Assisting in the development of accountability mechanisms under Pillar 3 of the Protect-Respect-Remedy framework. Esdaile ended his presentation by reminding the audience that whilst the international system is relatively young, the business and human rights movement is even younger. His hope was that the UNGPs are a step towards creating binding legal obligations for businesses, and to expand the web of accountability mechanisms for victims. He ended by echoing Christian Aid’s position on bringing to justice the authors of human rights violations: that this should not be left to voluntary mechanisms. The UNGPs are after all more of an encouragement and not an obligation for businesses to respect human rights.

The final speaker was Francis Neate, retired senior solicitor (Slaughter & May) and former President of the International Bar Association. Addressing the point that the UNGPs did not currently have the force of law, he remarked that best practices tended to become law, or at least to affect law, over time. In practice, he did not see any problem for a solicitor to advise his client to comply with the UNGPs: it has always been part of a solicitor’s job to give his client guidance on both legal and non-legal obligations, as the way a company conducts their business has a public relations impact.

In contrast to Chris Esdaile, Neate was rather more sceptical of the suggestion that all law firms would refuse to act for client companies that might be suspected of involvement in adverse human rights impacts. As he put it, ‘everyone wants to act for Shell!’ However, he recognised that public opinion would exert real pressure on companies to comply with the UNGPs, and concluded by remarking on how advice on the Ruggie guidelines clearly represented a new business opportunity for lawyers.

As this was an educated audience, the questions from the floor were informed and relevant: how to incentivise compliance with UNGPs? - should lawyers’ professional organisations set the moral compass regarding the duty to respect the UNGPs? - could a human rights accreditation programme be created so that businesses will be able to demonstrate they have achieved a benchmark standard for UNGPs compliance?

The debate and questions demonstrate that there are challenging issues of practical implementation ahead if the UNGPs are to progress beyond theoretical discussion. However, this well-attended Law Society event demonstrated that John Ruggie’s message is being understood by a wide and well-informed audience. And perhaps that Neate’s suggestion that there are business opportunities for lawyers seeking to advise their clients on how to comply with the UNGPs.