Reparations and Other Issues

The Cambodian Extraordinary Chambers
A sui generis system leaving many questions unanswered
David Boyle
Cambodia Democratic Kampuchéa era
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 -
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
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)
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
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]
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
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 Cambodia’s 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)
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
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
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.
The Constitutive Documents
2003 - UN / Cambodia Agreement on international participation
2004 - Ratification of the Agreement
- Amended Law Establishing ECCC (EC law)
2006 - Internal rules?
II. The Extraordinary Chambers in the Courts of Cambodia
Structure
Legal Status
International Participation
Jurisdiction
Procedure
Victims
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.
Legal Status Domestic 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
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)
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
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
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
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
Jurisdiction
Subject matter jurisdiction
Personal jurisdiction
Temporal Jurisdiction
Territorial jurisdiction
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).
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)
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:"
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
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
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
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.
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.
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)].
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.
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
Role of Victims
Participation
Representation
Protection
Reparations
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.
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.
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.
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
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.
CONCLUSION