The Cambodian Extraordinary Chambers

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The Cambodian Extraordinary Chambers

• A sui generis system leaving many questions
  unanswered
  
• David Boyle

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CambodiaDemocratic Kampuchéa era
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I. Historical Overview

• 1st Indochina conflict (1945-1953)- French
  decolonisation
  
• 2nd conflict (1963-1975) - Extension of the US
  - Vietnam War
  
• 3rd conflict (1977-1991) - Vietnamese Invasion
  of Cambodia
  
• Kingdom of Cambodia (1993 -

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1st conflict (1945-1953) - French Decolonisation

• 1863 - French Protectorate
• 1945-1953 - Decolonisation in Indochina
• 1953-1970 - Independence under Sihanouk
• The Sankum Period of relative peace through
  paternalistic despotism
  
• socialist one party reality screened by regular
  democratic elections
  
• progressively increasing repression of political
  dissent
  
• non-alignment in an attempt to remain neutral in
  the Vietnamese conflict

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2nd Conflict (1963-1975)

• 1963 - Extension of the US-Vietnam War to
  Cambodia
  
• 1970 - The Khmer Republic - Pro American Coup
  by General Lon Nol- Sihanouk flees to China and
  allies with the KR
  
• 1973 - US and Vietnamese forces leave Cambodia-
  Paris Conference on Vietnam peace with honour
  
• 1975 - Phnom Penh falls to the KR (17 April)

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The Khmer Republic (1970-1975)

• The Government
• Permanent state of war against Vietnamese then KR
  forces
  
• State instigated pogroms against Vietnamese
  residents (details)
  
• Military reprisals against villages harbouring
  the Khmer Rouge
  
• US secret carpet bombing of Cambodian Territory
  until August 1973
  
• Khmer Rouge guerrilla war
• progressive installation of collectivist system
  in liberated areas starting in the North West
  
• Alliance with Sihanouk, reaction to Republican
  forces and US bombing facilitate acceptance by
  the population
  

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Democratic Kampuchea (1975 - 1979)

• The population of major towns, defined as the
  new people is forced to leave for the
  provinces, under the pretext of temporary
  evacuation
• Elimination of enemies of the revolution
  members of previous regimes, republican military
  personnel, collaborators with foreign countries
  
• Territorial tensions with Vietnamese Brother
  enemies
  
• Abrupt imposition of collective living,
  prohibition of money and religion, separation of
  children and spying, slave labour using
  predominantly new people many deaths from
  starvation, forced labour, untreated illnesses,
  arbitrary punishment of counter-revolutionary
  activities.
• Establishment of a torture based police security
  system culminating at Tuol Sleng (S21) Director
  - Duch

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Democratic Kampuchea cont.

• 1976 - Khmer Rouge policy towards reactionary
  elements widened and the pace of killings
  increased  intellectuals, professors, students
  
• 1977-1978 purges against rival commmunist
  factions
  
• many communist cadre are killed or flee to
  Vietnam
  
• Ta Mok is placed in control of the eastern
  region
  
• 1979 - Vietnamese invasion
• Phnon Penh falls on the 7 January
• End of February 1979 Vietnamese troops arrive at
  Thai border

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3rd Conflict (1978-1991) Vietnam - Cambodia

• 1978 (25 Dec.) Vietnamese Invasion of Cambodia
• 1979 Establishment of the Popular Republic of
  Kampuchea pro-Vietnamese
  
• 180 000 Cambodians flee to Thailand
• The Government of Democratic Kampuchea in
  exil keeps Cambodias seat at the UN
  
• Guerrilla war along Thai border / HR
  violations
  
• 1989 - Vietnam announces retreat from Cambodia
• 1991 - Paris Peace Agreement creating UNTAC
  (1991 1993)
  

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Khmer Rouge Accountability

• 1993 - Sihanouk promulgates the Constitution
• 1996 - Surrender and amnesty of Ieng Sary
  (Brother No.3)
  
• 1997 - Pol Pot excluded from the KR leadership
  and imprisoned
  
• - UN HR Commission declaration on Khmer Rouge
• - The Cambodian Government requests UN aid to
  try KR
  
• 1998 - Death of Pol Pot
• - Democratic Elections (new coalition
  CPP/Funcinpec)
  
• 1999 - Expert Group Report UN favours a third
  ad hoc ICT
  
• 2000 - draft Memorandum of Understanding (basic
  structure)
  
• 2001 - Law Establishing the Extraordinary
  Chambers
  
• 2002 - the Secretary-General pulls out of the
  negotiations
  
• - The General Assembly requests SG to continue

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International influences

• During 6 years of negotiations (97-03)(Kosovo,
  East Timor, Sierra Leone)
  
• 1998 UN representation suspended -Cambodia did
  not sign Rome Treaty
  
• Although Cambodia often cited in support of
  establishing the ICC, it does not have
  jurisdiction
  
• Original UN draft statute for a third ad hoc ICT
  based on the ICTR
  
• 2002 After UN pullout from negotiations,
  Cambodia ratifies Rome Statute (11 April)
  
• 2003 final agreement incorporates ICC references

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Domestic Reality

• The relative strength of the negotiating position
  of the Cambodian Government, as compared with
  other countries establishing hybrid tribunals,
  explains the unprecedented structure of the EC,
  the limitation of their jurisdiction to the
  crimes committed by the Khmer Rouge during their
  period in power, and the mixture of domestic
  criminal procedure and international principles.

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The Constitutive Documents

• 2003 - UN / Cambodia Agreement on international
  participation
  
• 2004 - Ratification of the Agreement
• - Amended Law Establishing ECCC (EC law)
• 2006 - Internal rules?

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II. The Extraordinary Chambers in the Courts of
Cambodia

• Structure
• Legal Status
• International Participation
• Jurisdiction
• Procedure
• Victims

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Structure - moderated civil law

• Pre-Trial / investigation stage
• Investigations are carried out by international
  and Cambodian co-prosecutors and
  co-investigating judges.
  
• Any disagreement between them is settled by a
  Pre-trial Chamber.
  
• Trial stage
• Cases are brought for trial before the
  Extraordinary Chamber of the Phnom Penh
  Municipal Court.
  
• A single appeal lies directly to the
  Extraordinary Chamber of the Supreme Court.

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Legal StatusDomestic Courts

• Cambodian courts established by the EC Law as
  specialised chambers within the existing judicial
  hierarchy.
  
• the 2003 Agreement mainly covers international
  standards and cooperation
  
• In case of conflict?
• both documents have the status of law in
  Cambodia, it is open to question which should
  prevail
  
• Lex specialis? / last law prevails?
• Special status of Human Rights treaties
• Languages (Art. 45) Khmer, French, English

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International Participation

• Investigation stage
• two co-prosecutors with identical powers, one
  international and one Cambodian
  
• two co-investigating judges with identical
  powers, one international and one Cambodian
  
• a Pre-trial Chamber to resolve any disputes
  between the co-prosecutors or the
  co-investigating judges (same structure as the
  Trial Chamber except that a super majority is
  needed to block a decision)

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Appellate issues during pre-trial stage

• Under Cambodian Law
• Decisions of prosecutors (prosecutor of Court of
  Appeal)
  
• Decisions of investigating judges (Court of
  Appeal)
  
• A role for the Pre-Trial Chamber?
• Powers under EC Law (resolve disputes between
  staff)
  
• No appeal allowed
• Right of parties to be heard / represented?
• Possible scenarios
• Defence appeal against co-prosecutor decision to
  investigate
  
• Victim appeal against co-IJ decision not to
  accept civil party claim

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Trial stage

• Trial Chamber
• 5 judges - 2 international and 3 Cambodian
  (including presiding judge)
  
• Decisions require a super majority of at least
  4 judges
  
• Appeals Chamber
• 7 judges, 3 international and 4 Cambodian
  (including presiding judge)
  
• Decisions require a super majority of at least
  5 judges

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Organisation of international participation

• Supreme Council of the Magistracy appoints
• all Cambodian judges,
• all international judicial personnel upon
  nomination by the UN Secretary-General, from
  lists provided by the latter.
  
• Administration
• Cambodian Director of Office of Administration,
  Sean Visoth
  
• international Deputy Director, Michelle Lee (both
  officially appointed on 24 November 2005).
  
• Other international positions posted on UN Website

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International Financial Aid

• Total Budget (3 years) - 56,3 USD
• Voluntary International Contributions - 43 M
• Currently around 38,7 promised (UE?)
• Cover cost of international staff
• Contribution by Cambodia - 13,3 M
• Cost of Cambodian staff 1 premises
• Cambodia will not pay all this
• The rest from Bilateral aid (UE) / leftover
  UNTAC funds

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Jurisdiction

• Subject matter jurisdiction
• Personal jurisdiction
• Temporal Jurisdiction
• Territorial jurisdiction

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Subject matter jurisdiction

• International crimes 
• Genocide
• Crimes against Humanity
• Grave breaches of the 1949 Geneva Conventions
• 1954 Hague Convention on protection of Cultural
  Property
  
• 1961 Vienna Convention on Diplomatic Relations
  (EC Law, Arts. 4 to 8).
  
• Serious crimes under Cambodian law
• (1956 Penal Code) homicide, torture, religious
  persecution (EC Law, Art. 3).
  

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Genocide

• Definitional issues (Art. 4)
• as defined in the Genocide Convention
• "such as"
• Punishable acts genocide, attempt, conspiracy
  and participation (not direct and public
  incitement)

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Crimes against Humanity

• Definitional Issues
• 2003 Agreement, Art. 9 ICC definition
• EC Law, Art. 5 (ICTR)  
•   "any acts committed as part of a widespread
  or systematic attack directed against any
  civilian population, on national, political,
  ethnical, racial or religious grounds, such as"

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Personal jurisdiction

• The CEC have personal jurisdiction over two
  overlapping groups of people(EC Law, Art. 2)
  
• Senior leaders of Democratic Kampuchea  and
• those who were most responsible for the crimes
  coming within the jurisdiction of the CEC
  

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Personal Jurisdiction (II)

• Estimates of the number of people falling within
  these criteria vary, however, the CEC will not
  have a sufficient budget to try large numbers of
  people.
• Two people are currently in pre-trial detention
  
  
• Chhit Choeun (Ta Mok), a former military
  commander
  
• Kaing Khek Iev (Duch), director of Tuol Sleng

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Leaders

• Pol Pot (dead)
• Nuon Chea
• Ieng Sary (amnestied)
• Khieu Samphan
• Ta Mok
• Duch (Kaing Kek Euv)
• Mam Nay

• Brother Number 1
• Brother Number 2
• Foreign Affaires
• President
• Military (in prison)
• Director of S21 (in prison)
• S21 interrogations

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Temporal Jurisdiction

• The temporal jurisdiction of the CEC is strictly
  limited to the period from 17 April 1975 to 6
  January 1979, during which the Demoicratic
  Kampuchea regime was in power.

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Territorial jurisdiction

• The territorial jurisdiction of the CEC is not
  specified
  
• The Chambers will thus have to decide whether
• to try all the crimes coming within their
  jurisdiction, regardless of where they were
  committed (as in Sierra Leone), or
  
• to apply existing Cambodian law, which appears to
  restrict jurisdiction to crimes committed in
  Cambodia.

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Procedure

• Cambodian law (this may include the draft Code
  of criminal procedure currently under discussion
  if it is adopted in time).
  
• However, the CEC are authorised to seek guidance
  in procedural rules established at the
  international level where Cambodian law does
  not deal with a particular matter, or where there
  is uncertainty regarding the interpretation or
  application of a relevant rule of Cambodian law,
  or where there is a question regarding the
  consistency of such a rule with international
  standards 2003 Agreement, Art. 12(1).

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Internal Rules to complement applicable Cambodian
Law?

• Principle
• Respect for the spirit of applicable Cambodian
  procedure
  
• Adapt for participation, pre-trial appeals,
  victims
  
• Means
• Adoption as law
• Adoption by the judicial staff.
• Adoption of the new Code of Criminal Procedure as
  the applicable law.

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Specific procedural issues

• Previous attempts to try KR (non bis)
• 1979 PRK Popular Tribunal to try the Pol
  Pot-Ieng Sary clique
  
• Amnesties and Pardons (EC Law Art. 40)no request
  in future but previous acts open to doubt
  
• 1994 Anti KR Law
• 1996 Amnesty for Ieng Sary
• Statute of Limitations
• Excluded for genocide and Crimesa gainst
  humanity
  
• War crimes etc. ?
• Extended by thirty years for domestic crimes
• Extradition requests

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Role of Victims

• Participation
• Representation
• Protection
• Reparations

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Participation

• EC Law - ambiguous references to victims
• Cambodian procedure
• Appeals by Accused, procesutor victims - Art.
  36
  
• Rights of accused v. protection of victims - Art.
  33
  
• Under Cambodian law, victims have right
• to file complaints and appeal decisions not to
  investigate
  
• to be joined as civil parties to criminal
  proceedings, in order to participate in the trial
  and claim damages.
  

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Organising Participation

• Possible collective solutions to large numbers of
  victim claims or actions
  
• Widened admissibility of legal action by
  associations.
  
• collective exercise of victims rights by persons
  having comparable claims
  
• Allowing associations to file complaints and
  requests for civil party status on behalf of
  victim groups.

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Representation

• Issues
• The right to the aid of counsel of choice,
• admitted to a foreign or Cambodian Bar,
• under the same conditions as the accused.
• Organisation (possible ICC inspiration)
• Allow Extraordinary Chambers to request victims
  having comparable claims to choose a common legal
  representative.
  
• Creation of a public counsel service to
  facilitate organisation of victim and defence
  representation.

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Protection issues

• Protection of all victims who participate in
  the trials (VWUnit) witnesses, complainants,
  civil parties, and their representatives. (art.
  33)
• Application of all the protection measures
  available to victims before ICC.
  
• Jurisdiction over offences relating to coercion
  of witnesses and contempt proceedings
  

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Reparations issues

• Allowed under Cambodian law (civil parties)
• Extent of power of the Extraordinary Chambers to
  grant individual and collective reparations, as
  recognized at the international level
  restoration, compensation, rehabilitation,
  satisfaction and guarantees of non-repetition.
• Creation of a Trust Fund in favour of victims to
  receive both property confiscated from those
  persons found guilty and voluntary
  contributions.

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CONCLUSION