Comments on the Draft Rules by International Center for Transitional Justice (ICTJ)

COMMENTS ON DRAFT INTERNAL RULES FOR THE EXTRAORDINARY
CHAMBERS IN THE COURTS OF CAMBODIA
17 November 2006∗
Introduction
The International Center for Transitional Justice (ICTJ) welcomes the opportunity to
comment on the draft Internal Rules (IR) for the Extraordinary Chambers in the Courts of
Cambodia (ECCC) and commends the decision to invite public comment. If the ECCC is
to make a meaningful contribution towards justice for Cambodians, it is essential that the
proceedings are impartial, fair and able to withstand public scrutiny, both within
Cambodia and internationally. As with any court, clear rules of procedure are key to
ensuring the fairness, integrity and transparency of the trials of former Khmer Rouge
leaders, and it is in this spirit that we offer the following constructive comments.
The ECCC has an important role to play in setting a positive example of a criminal
justice process for past human rights crimes that both protect the fundamental rights of
suspects and accused persons, while balancing this with the interests of victims. ICTJ
notes the extent to which the Rules Committee has succeeded in combining Cambodian
criminal procedure with elements drawn from the experiences of national, international
and mixed national-international criminal jurisdictions such as the Special Court for
Sierra Leone. ICTJ believes that the current draft contains some important features that
will make a major contribution to the work of the ECCC and its longer-term legacy
within Cambodia. Significantly, the draft Internal Rules provide far greater procedural
clarity for the ECCC proceedings than the current sources of Cambodian criminal
procedure. However, our review also indicates general and specific concerns about the
draft Internal Rules, some of which derive from the challenges inherent in the legal
structure of the ECCC as a whole, others from the nature of the specific cases likely to
come before the ECCC. While in the short time frame provided for public comment it
has not been possible to provide a comprehensive set of comments on all aspects of the
lengthy draft Internal Rules, ICTJ has chosen to focus on five areas that we believe
deserve special attention if the ECCC is to maximize its ability to serve the transitional
justice goals of re-establishing respect for the rule of law and provide an effective remedy
for victims. These five areas are as follows:
∗ Paper drafted by Caitlin Reiger, ICTJ Senior Associate, with the benefit of comments received from
Graeme Simpson, Marieke Wierda, Ruben Carranza, Miranda Sissons and Ari Bassin.