ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Wednesday, October 29, 2008

A Little Taste of JCE from the ICTY

Milosevic [in reference to the prosecution's case of JCE]: "[...] not everyone listening to this is an idiot".

More at (the link below is not clickable due to the format of this page; however, it can be copied and pasted in your browser piecemeal to then be activated; I apologize for the incovenience, but it is worth going to this trouble for the read):

http://64.233.167.104/search?q=cache:yU0M3C_MihYJ:www.un.org/icty/
transe54/050825IT.htm+site:www.un.org
/icty/transe54+%2B%22Seselj%22%2B%22Greater+Serbia%22&hl=en&ct=clnk&cd=1&gl=ca

Tuesday, October 28, 2008

Further on JCE: Quote

John Laughland, author of Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice, wrote about the Joint Criminal Enterprise Doctrine in 2006. He wrote that
the International Criminal Tribunal for the former Yugoslavia:

"...has invented a doctrine of criminal liability known as ‘joint criminal enterprise.’ It uses this concept, which is so contentious that it is unconstitutional in many jurisdictions, in order to convict people of crimes when even the Tribunal accepts that they did not, in fact, commit them or that the proof is lacking to show that they did."

Article on JCE: Joint Criminal Enterprise

Joint Criminal Enterprise
Author: van der Wilt, Harmen
Source: Journal of International Criminal Justice, Volume 5, Number 1, March 2007 , pp. 91-108(18)
Publisher: Oxford University Press

Abstract:The Joint Criminal Enterprise (JCE) doctrine has made an impressive appearance on the stage of the International Criminal Tribunal for the former Yugoslavia. However, the initial enthusiasm has faded somewhat recently as doubts about the doctrine's broad applicability have started to dominate the discussion. In this article, the author argues that we should not deplore the partial demise of the doctrine. The simple truth is that the doctrine does not entirely dovetail with the gloomy reality of the modern bureaucracies that engage in systematic crime. Rather than trying to curb reality in order to fit our legal concepts, we might instead search for alternative modes of criminal responsibility. Functional perpetration may be such an alternative as it takes the function of the accused as point of reference for an inquiry into his responsibility and forges more direct links between the perpetrator and the crime. The JCE doctrine still has a useful function to serve in (modestly) extending the responsibility of participants in mob violence and in portraying the collective efforts of those who can properly be qualified as the auctores intellectuales of system criminality.

Article on JCE: Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law

Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law

Jennifer (Jenny) S. Martinez Stanford Law School; Allison Marston Danner Vanderbilt Law SchoolMarch 2004Vanderbilt Public Law Research Paper No. 04-09; Stanford Public Law Working Paper No. 87

Abstract: Contemporary international criminal law is largely concerned with holding individual defendants responsible for mass atrocities. Because the crimes usually involve the concerted efforts of many individuals, allocating responsibility among those individuals is of critical importance. This Article examines two liability doctrines - joint criminal enterprise and command responsibility - that play a central role in that allocation of guilt in international criminal tribunals. The Article posits a general model for understanding the development of international criminal law as in outgrowth of three legal traditions: domestic criminal law, international human rights law, and transitional justice. We explore the application of that model to joint criminal enterprise and command responsibility doctrine, and argue that viewing the doctrine through the lens of our model shows the need for certain doctrinal reforms. Finally, we discuss the application of liability doctrines developed in the context of international criminal tribunals to prosecutions for transnational crimes in other forums, such as military tribunal prosecutions for terrorism, that do not share the same roots as international criminal law.

Articles on JCE: The Requirement of an ‘Express Agreement’ for Joint Criminal Enterprise Liability

The Requirement of an ‘Express Agreement’ for Joint Criminal Enterprise Liability

Katrina Gustafson *

Abstract
The mode of liability known as joint criminal enterprise (JCE) has emerged in the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) as a means of assigning criminal liability to individuals for activities carried out by a collective. As a result, the doctrine must be carefully defined so as not to allow it to extend a defendant's liability beyond the appropriate limits of individual criminal responsibility. In this regard, a recent ICTY Trial Chamber decision in Branin held that, where a defendant is not alleged to have participated in the physical perpetration of the crimes charged but to have contributed in some other way to the commission of the crimes by a group, the prosecution must demonstrate that the defendant entered into an express agreement with the physical perpetrators to commit the crimes charged. The author argues that this ‘express agreement requirement’ is both conceptually unsound and practically unhelpful. Conceptually, it would be inconsistent with core principles of JCE liability to require an express agreement between a defendant and the physical perpetrators of crimes, at least in circumstances in which it is alleged that there existed a structure of two or more overlapping JCEs. Moreover, because this structure allows the accused and the physical perpetrators to be operating in two separate JCEs, they need not even share a common criminal purpose. On a practical level, arguably in a ‘system-criminality’ context such as the one that developed in the former Yugoslavia during the time period in question, the organizers of criminal activity are unlikely to enter into express criminal agreements with those who physically carry out crimes, because existing organized hierarchies provide much more efficient mechanisms by which leaders are able to ensure the realization of their criminal plans.

Coming Down the Pike: Joint Criminal Enterprise (JCE)

The ICTY-formulated doctrine of Joint Criminal Enterprise (JCE) has previously been discussed on this forum in connection with the defense's objection to the participation of certain amici curiae whose opinion on the matter had been solicited by the Pre-Trial Chamber (PTC). The end to which JCE's creation was a means was the weaving of a wide net that catches everyone in some way associated with the crimes within the international tribunals' jurisdiction. This works as a backstop for cases where the defense is able to extricate their clients from others against whom there is sufficient incriminating evidence to prosecute and demand the termination of investigations or issuance of aquittals, if the matter has already advanced to the trial stage. Taken to the extreme, pursuant to JCE a plumber can be successfully prosecuted for servicing the plumbing system of a concentration camp or a cook for serving meals to the interrogation personnel of a prison at the time when the crimes within the tribunals' jurisdiction were being committed.

Since the doctrine of JCE is not brandnew the question it begs is why the present attention to it at the ECCC had not been paid by the Co-Prosecutors (CPs) before, either in the Introductory, Supplementary or Final Submissions, for which they had ample time and facility.

To answer this question one needs to go back to the transcripts of the interviews of Kaing Guek Iev ("Duch") by journalists Nic Dunlop and Nate Thayer and read them together with the transcripts of the present investigation of Kaing's case. The picture a combination of these paints is that of Kaing being repentant and willing to cooperate with the authorities. In the play, which is these proceedings, Kaing was thus expected to take up the part of a whistleblower he has kept promising and then reneging on since his interviews with Dunlop and Thayer. Being aware of Kaing's history of confessions, the CPs anticipated that he would be their Philosopher's Stone which would turn all their other cases into gold.

It did not pan out that way. Kaing does have a lot of insider knowledge of certain aspects of Democratic Kampuchea about which he can testify thus significantly helping beef up the prosecution's cases. The problem is that he had two superiors, Noun Chea and Son Sen, of whom only one is alive to stand trial, Noun Chea. This is the person Kaing reported to and this is the person he can help the prosecution build a case against. The other three he does not know much about and might not have met or spoken with during Democratic Kampuchea or ever in his life.

I presume that when the Co-Investigating Judges (CIJs) began indepth interrogation of Kaing they found out that he did not know much inculpatory information about any other defendants but Noun Chea. It probably did not phase the CIJs very much as their job is to find and examine both inculpatory and exculpatory evidence which can be adduced to a particular case. When the CIJs' findings were shared with the CPs (I believe this happened somewhere between June and July of this year), the CPs had to face up to the fact that the evidence collected by the CIJs would not make their cases against Khieu Samphan, Ieng Sary and Ieng Thirith ironclad. In fact in some cases Kaing's testimony must have undermined the prosecution's existing cases as it contributed exculpatory evidence to some of them in stark contrast to the anticipated wealth of
inculpatory evidence.

The only way for the prosecution to glue its cases back together again and move on to trial was to find a way to link all the other accused to the person whose guilt is almost certain, Kaing. They must have tried conspiracy at one point or another, but one cannot prove that without first proving that these five persons had actually met. If one manages to prove that, he or she will have to then prove that in fact there was a clearly formulated mechanism in which each of the five had a distinct role. They could not do that because no such evidence exists. They must have tried individual criminal responsibility and that in the cases of some of the accused fell through too as no sufficient evidence links them to Kaing and S-21. They would have tried complicity, but no genocide charge was filed. Scraping the bottom of barrel and grabbing at straws the prosecution finally found a panacea for all their cases, JCE. This judicial doctrine, and nothing else, is the prosecution's last chance to establish a link between Kaing and Khieu Samphan, Ieng Sary and Ieng Thirith. JCE is therefore is not a minor theory, but a doctrine that often creates a crime where there isn't one. Hence is the present attention to this theory and solicitation of the amicus curiae filed earlier today.

Sunday, October 26, 2008

Court says Khmer Rouge leaders fit to stand trial

AFP
Thursday, October 23, 2008

PHNOM PENH (AFP) — Cambodia's UN-backed war crimes court has denied requests for tests on two former Khmer Rouge leaders to examine if they were fit for trial, according to court documents obtained by AFP Thursday.
Lawyers for Nuon Chea and Ieng Sary asked for medical experts to determine whether the men were mentally competent to face trial on charges of war crimes and crimes against humanity.
Nuon Chea, the former Khmer Rouge ideologue, complained his brain was "not normal" and his "thinking is generally unclear," while former foreign minister Ieng Sary was in "a state of weak physical and mental capacity," according to documents requesting the tests.
However judges denied the appeals this week, saying there was no evidence the two men, both over 80 years old, were unfit to stand trial.
They are among five former Khmer Rouge leaders due to be tried for crimes committed under the murderous 1975-79 regime, which oversaw one of the worst atrocities of the 20th century.
Up to two million people died of starvation and overwork, or were executed by the regime, as it dismantled modern Cambodian society in an effort to forge a Communist utopia.
Cities were emptied and their populations exiled to vast collective farms, while schools were closed, religion banned and the educated classes targeted for extermination.
Copyright © 2008 AFP. All rights reserved

Court says Khmer Rouge leaders fit to stand trial

AFP
Thursday, October 23, 2008

PHNOM PENH (AFP) — Cambodia's UN-backed war crimes court has denied requests for tests on two former Khmer Rouge leaders to examine if they were fit for trial, according to court documents obtained by AFP Thursday.
Lawyers for Nuon Chea and Ieng Sary asked for medical experts to determine whether the men were mentally competent to face trial on charges of war crimes and crimes against humanity.
Nuon Chea, the former Khmer Rouge ideologue, complained his brain was "not normal" and his "thinking is generally unclear," while former foreign minister Ieng Sary was in "a state of weak physical and mental capacity," according to documents requesting the tests.
However judges denied the appeals this week, saying there was no evidence the two men, both over 80 years old, were unfit to stand trial.
They are among five former Khmer Rouge leaders due to be tried for crimes committed under the murderous 1975-79 regime, which oversaw one of the worst atrocities of the 20th century.
Up to two million people died of starvation and overwork, or were executed by the regime, as it dismantled modern Cambodian society in an effort to forge a Communist utopia.
Cities were emptied and their populations exiled to vast collective farms, while schools were closed, religion banned and the educated classes targeted for extermination.
Copyright © 2008 AFP. All rights reserved

Saturday, October 25, 2008

Ieng Sary In Court (AP)


Ieng Sary To Remain in Tribunal Detention

By Chun Sakada, VOA Khmer Original report from Phnom Penh17 October 2008
Ieng SaryTribunal judges upheld the pre-trial detention of jailed Khmer Rouge leader Ieng Sary Friday, saying he could be a flight risk and a danger to witnesses and evidence.
Ieng Sary would remain jailed for his own safety and public order, the prevention of influencing witnesses and destroying evidence, and to ensure his presence at trial, judges of the Pre-Trial Chamber said.
Ieng Sary, 83, was arrested in November 2007 and is charged with war crimes and crimes against humanity for his role as the foreign minister of the Khmer Rouge.
Defense lawyer Ang Udom told reporters Friday the decision had been unjust for his client, who suffers from heart problems and high blood pressure and should be held under house arrest or hospitalized.
Hong Kim Suon, a lawyer representing civil parties, called the decision fair according to laws and international standards.
Ieng Sary was sentenced to death in absentia by a Vietnamese-backed court following the collapse of the Khmer Rouge. He defected to the government in 1996, following a royal pardon for that crime.

ECCC FINALLY Publishes Its Budget

It has finally happened. After years of persistent calls of the public the ECCC has published its budget. This publication might be the Court's newly-found quest to demonstrate transparency in the midst of its stumbling fundraising drive, but regardless of the reasons for which it was done what matters is that the Court's budget is finally open to public scrutiny.
The budgetlines that might be of particular interest are those which show the doubling and tripling budgets of certain organs of the Court, salaried positions of alternate judges (who by law are only supposed to be called into service when necessitated by the absence of a sitting judge(s), skyrocketing expert and consultant budgets, and the Court's current timeline which goes till the very end of 2010 (under the original design the Court was supposed to conclude its work within a 3-year period which counting from the time the budget began to be spent (early 2006) should been early 2009; the donors who are supporting these proceedings will be well-advised if they understand that the said timeline is tentative as not a single event has taken place on schedule at this court thus far), among others.

The JCE Amici Curiae Saga Ends

Joint Criminal Enterprise (JCE) is a judicial doctrine of superior accountability devised by the ICTY to link the top leaders of the regimes created with the collapse of the Federal Republic of Yugoslavia (FRY) to the acts of mid-ranking commanders and alleged hands-on perpetrators of the crimes with the subject-matter jurisdiction of the Tribunal. This doctrine has been argued by many to have been invented by the ICTY judges in violation of a well-established principle of criminal law, nullum crimen sine lege or no crime without a law.
Professor Cassese, a former judge of the ICTY Appeals Chambers and presently editor-in-chief of the Journal of International Criminal Justice (JICJ), along a group of others was invited to submit an amicus curiae brief to the Pre-Trial Chamber (PTC) of the ECCC. The Ieng Sary Defense Team filed a motion opposing such invitation requesting that Cassese and the other experts identified by the PTC in the foregoing invitation be disqualified from being amici curiae on the grounds of close attachment of these experts to the doctrine of JCE all of whom, per the Ieng Sary Defense Team's beliefs, were expected to be "independent and impartial" (it is interesting to note that one of the remedies sought by the Sary Team was to extend the invitation to submit an amicus curiae brief to the Association of the Defense Counsel Practising Before the ICTY which the Team, for reasons curious and unbeknownst to anyone, perhaps, with the exception of the Team itself, asserted would be "impartial and independent"). The Team proceeded by expounding its views on the purported impartiality and independence requirement to qualify amici curiae by presenting a range of judicial decisions which the Team argued set out such requirement at the international and domestic levels (for those uninitiated in matters of case law-based common law, it would perhaps be helpful to note that whatever one's opinion might be on any given issue he or she can find corroboration for it in some decisions in some common jurisdiction (I, for one, am unfamiliar with any legal issue that this cannot be done with if sufficient research is undertaken). Hence, the weight of an argument proffered in any proceedings is not predicated upon the mere fact that a single judicial opinion asserting a similar ground can be presented, but whether that opinion has been supported by other courts and the extent to which it has been done. A single opinion in itself therefore has no more weight than a mere showing that another jurist or group of jurists at one point or another thought something similar was viable. The Sary Team did not take this fact into consideration thus forming its argument to this effect by stringing a spate of disparate single judicial decisions together which in the end turned into a big and expansive production that had abosolutely no story.
The PTC decided the above motion in a particularly curious and narrow manner when the Chamber merely rejected the Sary Team's application based on lack of standing in the matter as the current submission, according to the Chamber, does not directly pertain to the case of Ieng Sary but to that of Kaing Guek Iev. The PTC, which is known for the razor blade narrowness of its decisions, has thus disregarded what seems to be the obvious fact that the current submission of an amicus curiae brief by Cassese and his team of experts is very unlikely to be limited to the case of Kaing but is most likely to form the opinion of the Court on JCE as a legal issue which will be applied as unquestionable authority far beyond the Kaing case. The PTC, however, refused to entertain this probability and allow all interested parties to participate in the process of forming of such opinion from the start. The opinion, although for the wrong reasons, has allowed the aforementioned experts to submit the relevant brief. It is, however, regrettable that the Court has refused to re-assert the right of amici curiae to participate in the proceedings regardless of their relationship to the issue under judicial scrutiny.

Wednesday, October 15, 2008

Khieu Samphan Seeks Release Via Judges


By Reporters, VOA Khmer Original reports from Phnom Penh and Washington10 October 2008

Defense lawyers for jailed Khmer Rouge president Khieu Samphan said Friday they had decided to drop an appeal against his pre-trial detention through the Pre-Trial Chamber, asking instead investigating judges to drop an order to hold their client.
"We think that if we appeal, there is no hope," lawyer Sa Savan said. "Then we came back and asked the co-investigating judges to reconsider the provisional release of Khieu Samphan."
In a discussion in his cell with investigating judges Thursday, Khieu Samphan said he wanted to be released, Sa Savan said.
Investigating judges have the power to rescind their detention order, an order that the Pre-Trial Chamber has the power to overrule.
Co-investigating judge You Bunleng said Friday he and his international counterpart were waiting for five days to hear from prosecutors before deciding on the request.
Khieu Samphan, former nominal head of the regime, was arrested Nov. 19, 2007, and is charged with war crimes and crimes against humanity.
Delayed proceedings have meant Khieu Samphan has been held too long, especially considering his poor health, his lawyers said in a statement to the courts.
The demand for Khieu Samphan's release comes as the tribunal continues to fight allegations of corruption.
The court monitoring Open Society for Justice Initiative urged donors this week to condition future funding on a clean-up of corruption, following allegations by Cambodian staff they were forced to pay kickbacks.

Monday, October 13, 2008

An Expected Ending to the Saga of Turmoil in the Ranks of the Khieu Samphan Defense?

Former Khmer Rouge leader withdraws appeal against detention

Phnom Penh, Oct 10: Former Khmer Rouge leader Khieu Samphan has dropped an appeal against his pre-trial detention by Cambodia's UN-backed genocide court, his defence team said on Friday, citing the delay in proceedings.

The 77-year-old has been detained by the court since November on charges of war crimes and crimes against humanity for his alleged role during the regime's brutal 1975-1979 rule.

Soon after his arrest, Khieu Samphan appealed against his pre-trial detention, but judges adjourned the hearing after his French lawyer Jacques Verges said he was unable to properly mount a defence as 16,000 pages of court documents had not been translated into French.

Khieu Samphan's Cambodian lawyer Sa Sovan said he filed an application with the court on Wednesday to withdraw the appeal because "we don't know when they (the judges) will have the hearing."

Tribunal spokesman Reach Sambath confirmed the withdrawal and said the pre-trial chamber had agreed to it.

However, Sa Sovan said the defence team had also asked the investigating judges not to renew the detention when it expires on November 19 and the team still awaits translation of the documents into French -- the court's official language.

Khieu Samphan is one of five senior Khmer Rouge leaders, mostly in their 70s and 80s, in detention awaiting trial for their alleged roles in the 1975-79 atrocities.

Up to two million people died of starvation, overwork or execution under the Khmer Rouge, which dismantled modern Cambodian society in its effort to forge a radical agrarian utopia.

Copyright © Zee News Limited. All rights reserved.

Friday, October 10, 2008

A New Paper on the ECCC (Unpublished)

Extraordinary Language in the Courts of Cambodia:
Interpreting the Limiting Language and Personal
Jurisdiction of the Cambodian Tribunal
By Sean Morrison
April 2008

ABSTRACT


As the new Extraordinary Chambers for the Courts of Cambodia (ECCC) prepares to begin trials this year, one issue that will confront it is the meaning of the limiting terms described in its establishing statute. Prosecutions before the ECCC are limited to “senior leaders of Democratic Kampuchea and those who were most responsible” for the crimes committed during the Khmer Rouge regime. This phrase raises two important questions for the court: whether this limiting language defines the court’s personal jurisdiction, and if so, what the scope of these phrases is.

This paper will attempt to understand the function and scope of this new language by comparing the ECCC with the procedures and structures of the other international criminal tribunals. In so doing, this paper creates a spectrum of limiting language within the international criminal justice system against which the ECCC’s language can be compared. By clarifying the function and scope of the ECCC’s language, the ECCC will better be able to apply it to the upcoming trials. Future hybrid tribunals, which are also considering limiting language, will also have a reliable and consistent interpretation to compare their own language.

INTRODUCTION

Over the last two decades, the world has resurrected the use of international criminal tribunals to try those culpable of war crimes, genocide, and crimes against humanity. More than 40 years elapsed between the International Military Tribunals at Nuremburg and Tokyo and the modern system. The modern practice began with the ad-hoc tribunals for the former Yugoslavia and Rwanda, and culminated in the United Nations’ International Criminal Court (“ICC”). Part of this new regime of international criminal justice has arisen in the form of the so-called “hybrid” tribunals. These courts mix international and domestic laws and are established through agreements between the United Nations and the host country. Despite the emergence of the ICC, the global community has embraced these hybrid tribunals as the preferred course forward. The latest hybrid tribunal to begin proceedings is the Extraordinary Chambers for the
Courts of Cambodia (“ECCC”). The new court was established to prosecute those responsible for the atrocities committed during the Khmer Rouge regime in the 1970’s. The ECCC has continued the common practice in hybrid tribunals of limiting its prosecutions, but there are still procedural questions facing the court as it prepares to conduct its trials. One of the most pressing questions the ECCC needs to address is the meaning of its limiting language found it the ECCC Statute; specifically, whether this language is a description of personal jurisdiction, and if so, what the language means. This paper will attempt to understand the function of the language of the ECCC
Statute as well as interpret its scope. As the ECCC is a new institution, much of the analysis will rely on the procedures and structures of the other international criminal tribunals including the ICC, the ad-hoc tribunals, and the Special Court for Sierra Leone (“SCSL”). This comparison will create a spectrum against which the ECCC can compare itself in order to better understand where its own establishing language fits in the wider international criminal tribunal community.

I. THE EVOLUTION OF INTERNATIONAL CRIMINAL JUSTICE: FROM THE AD-HOC
TRIBUNALS TO THE ECCC

To better put the ECCC in perspective, it is important to understand it place among the tribunals that came before it. Each new tribunal was established with the previous ones in mind. Each one has attempted to avoid the pitfalls of its predecessors and better serve the causes it purports to advance. Some of the factors that have evolved include the size, duration, and costs. Understanding the issues facing the other tribunals will help facilitate the ECCC in moving forward.

A. The Ad-Hoc Tribunals

The Ad-Hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”), were the first international criminal courts established since the International Military Tribunals in Nuremburg and Tokyo. They were admittedly experimental, and it is widely recognized that the model will not be followed in the future.

Both the ICTY and the ICTR have failed to gain the support of the local populations they are supposed to represent. Within Rwanda and the countries that made up the former Yugoslavia, the ad-hoc tribunals are widely considered to be Western, imperialistic courts run by and for outsiders. Meanwhile, the local citizens have little orno access to information about the courts and trials, except through local media, which is often biased against the tribunals.

This lack of outreach to the communities the tribunals represent is largely the fault of the tribunals themselves. The ICTY did not even establish an outreach program until 1999, a full six years after its creation.2 Similarly, the ICTR information center in Kigali did not open until 2000, five years after the ICTR’s creation.3 Both courts have been accused of ignoring the citizens and governments of the former Yugoslavia and Rwanda. The opinion within Rwanda of the ICTR was so bad that at one point the Rwandan government temporarily severed diplomatic relations with the tribunal after the court ordered the release of a defendant due to procedural violations.


One of the reasons the ad-hoc tribunals are so disconnected from the populations they are purporting to serve is that they are held too far away from the target countries. With the ICTY in The Hague and the ICTR in Arusha, Tanzania, there is no practical way for the population to keep abreast of what is occurring in the tribunals. Particularly in Rwanda, where most of the population does not even have electricity, up-to-date information on the court is almost nonexistent. The distance and lack of information also fails to aid in improving the local legal systems. This is an area where the hybrid tribunals have an advantage over the ad-hoc tribunals, as they tend to be held in the country in which the conflict took place. This brings the trials closer to the people.

B. The International Criminal Court

The ICC was established in 2002 by the Rome Statute.5 The ICC was meant to be the final court of international criminal justice. Yet, it has not carried out any trials to date, and hybrid tribunals are still being established. The ICC is presently unprepared to carry out the world’s ever increasing demand for criminal justice.

One problem facing the ICC is its lack of jurisdiction. The ICC cannot prosecute individuals for crimes that were committed before the Rome Statute took place and only Rome Statute signatory nations are subject to its control. While there are mechanisms for expanding this territorial jurisdiction, as will be discussed below, there will be major practical hurdles to doing so.6 The ICC will also be limited to trying only a small group of senior leaders in any given conflict. The logistics of moving witnesses, evidence, and the accused from their home country to The Hague will hinder the ICC’s ability to carry out extensive prosecutions.

The ICC is further limited by its binary approach to international criminal law. Prosecutions brought before the court will be either wholly related to international criminal law, or referred back to the local courts for domestic trials.7 Most post-conflict national courts will be unable to handle such an immense task, and are often beset by corruption and politicization. There are also political restrictions plaguing the ICC. While the court was established without the United States’ ratification, it has suffered greatly for the lack of U.S. cooperation. In fact, one way in which the U.S. is attempting to prevent the emergence of a powerful ICC is by promoting the establishment of hybrid tribunals to counter the influence of the ICC.

C. The Hybrid Tribunals

For evidence of the continuing emergence of hybrid tribunals, one need not look far. Hybrid courts have been established in Sierra Leone, Kosovo, East Timor, and trials are expected to start this year in Cambodia. There are already discussions to establish a Special Tribunal in Lebanon to prosecute the alleged killers of former Prime Minister Rafik Hariri,10 and another Special Chamber in Burundi.

Part of the reason the hybrid tribunals are preferred is the desire to lower the costs of international justice. The ad-hoc tribunals have been much more expensive and gone on much longer than originally anticipated. The ICTR has cost about $138.5 million per year,12 and the ICTY has cost about $138 million per year.13 Compare this to the 2007 budget for the Special court for Sierra Leone (“SCSL”) which amounted to about $36 million.14 The global community prefers the hybrid tribunals because they offer lower costs and shorter trials – justice on the cheap. One way in which the hybrid tribunals keep costs down is by focusing prosecutions only on the worst offenders of the worst crimes. The SCSL was innovative in that it limited its prosecutions to those who bore the “greatest responsibility” for the crimes committed during the civil war in Sierra Leone. As such, it only issued 13 indictments, and has nine defendants.15 This compared to 74 indictments at the ICTR and 161 at the ICTY.

D. The Extraordinary Chambers for the Courts of Cambodia

The latest hybrid tribunal to emerge on the scene is the ECCC. The ECCC was created to prosecute members of the Khmer Rouge, which ruled Cambodia between 1975 and 1979 under the leadership of Pol Pot. An estimated three million people died under the Khmer Rouge regime, with particular atrocities carried out in the “killing fields” and in torture centers. In 1997, the government of Cambodia sought the United Nations’ help in establishing a court to prosecute the top members of the Khmer Rouge. By 2003, an agreement was reached and the ECCC was established. Since then, the new court has been beset with delays and political wrangling, but trials are expected to finally commence this year (2008). Five indictments have been issued and those individuals have been detained. Like the SCSL, the ECCC Statute also introduces language meant to limit the focus of prosecutions. Article 2 of the ECCC Statute limits the competence of the court to those who were “senior leaders of Democratic Kampuchea” and those who were “most responsible” for atrocities committed during the Democratic Kampuchea regime. This language raises two important issues: (1) whether this limiting language describes the court’s personal jurisdiction and is thus reviewable by the courts, and if so, (2) what the terms “senior leaders” and “most responsible” mean. This paper will attempt to analyze these issues and determine what they mean for the new ECCC. Hopefully, this will also help clarify the issues of personal jurisdiction for future hybrid tribunals. In order to determine the meaning of the language used in Article 2, it is necessary to compare the personal jurisdiction of the various tribunals, including the ICC, the ad-hoc tribunals, and the SCSL. By comparing the ECCC’s language to the spectrum of jurisdiction created by the other tribunals, it will become clear how best to interpret the language of Article 2.


II. THE FUNCTION OF THE LANGUAGE IN ARTICLE 2 OF THE ECCC STATUTE


The ECCC has introduced new terms of limiting language in its Statute. Article 2 of the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea

[...]


B. The Function of the Language of the ECCC


The ECCC was established through a series of agreements between the U.N. and the Government of Cambodia. These may offer clues as to the intended function of the ECCC’s limiting language. Included among these are the Report of the Group of Experts for Cambodia, and the establishing documents including the ECCC Statute, the Rules of Procedure and Evidence, and the U.N.-Cambodia Agreement on the establishment of the ECCC, possible source of persuasion for the ECCC in deciding the function of its limiting language is the Report of the Group of Experts for Cambodia (“Group of Experts”). The Group of Experts was a team of scholars appointed by the U.N. Secretary-Generaland given the task to assess the feasibility of bringing former Khmer Rouge to justice. The report was presented to the President of the U.N. General Assembly and the President of the U.N. Security Council. In their report, the Group of Experts argued that the terms “senior leaders” and “most responsible” should be understood solely as a guide for the prosecutor. The report suggested that the ECCC should define its personal jurisdiction using the phrase, “persons responsible for serious violations of human rights committed in Cambodia,” similar to the jurisdictions of the ICTY and ICTR. Like the SCSL, the ECCC Co-Prosecutors are considered a separate and independent organ of the court.55 The SCSL Appeals Chamber found this to be sufficient to conclude that the term “greatest responsibility” was a term of prosecutorial discretion, and not jurisdiction.56 The ECCC may also come to the same conclusion. However, the SCSL decision is not binding precedent and the ECCC seems to have rejected the Group of Experts’ recommendation on jurisdiction. The Cambodian
Government continued to draft the language of the ECCC Statute counter to the Group of
Experts’ recommendation by rejecting the “those responsible” language in favor of “senior leaders” and “most responsible.” Like the SCSL, the limiting language of the ECCC is in Article 1 of the ECCC Statute, describing the goals of the court. However, the language is repeated in Article 2 which falls under Chapter II, entitled, “COMPETENCE.” Chapter II of the Statute lists the jurisdictional powers of the court suggesting that “senior leaders” and “those most responsible” are jurisdictional terms. Perhaps the strongest evidence that the ECCC’s limiting language is a jurisdictional element is the agreement between the Government of Cambodia and the U.N. General Assembly establishing the ECCC. A similar establishing agreement between the U.N. and the Government of Sierra Leone never specifically identified the “greatest responsibility” language as the personal jurisdiction of the court.59 The SCSL was left to rely on correspondence between the Secretary-General and the Security Council. The U.N.-Cambodia Agreement, on the other hand, states, “The present Agreement…recognizes that the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible.” The Government of Cambodia and the U.N. clearly intended the phrases to be jurisdictional requirements and codified it in their agreement.
The ECCC still has a chance to avoid the confusion and “absurd” results that the SCSL Appeal Chamber relied on in its decision. The SCSL failed to decide the function of the “greatest responsibility” language until the final judgments. This caused the Appeals Chamber to be reluctant to overturn any final decisions. As trials have not yet begun in Cambodia, the ECCC has the opportunity to decide the questions of its language’s function at the very beginning of the proceedings. The court should find that the language does describe the personal jurisdiction of the court, but that the matter must be settled in its preliminary stages. In this way, it will avoid the possibility of a lengthy and expensive trial just to discover in the end that it never had jurisdiction in the first place. As terms of personal jurisdiction, the words “senior leaders” and “most responsible” limit the ECCC’s competence to bring to trial only those individuals falling within those categories. The court will have to interpret the scope of the phrases to determine whether an accused is indeed a senior leader or one most responsible.


III. THE SCOPE OF THE ARTICLE 2 LANGUAGE


Since the terms “senior leaders” and “most responsible” describe the ECCC’s personal jurisdiction, they must be considered and interpreted by the court. The question of whether a court has jurisdiction over an individual can often be complicated. Issues of jurisdiction may require factual submissions. Especially in international criminal tribunals, these factual submissions may be as extensive as would be submitted in the trial itself. The ICTY has consistently held that jurisdictional matters requiring factual submissions are to be dealt with at the trial stage, rather than the preliminary stages

[...]

d. Conclusion


Under the “senior leaders” provision, the ECCC has jurisdiction over only those individuals that were at the senior level of Democratic Kampuchea, and could be liable based on command responsibility. There does not seem to be much difference between the “senior leaders” of the ECCC and those bearing the “greatest responsibility” in the SCSL. Those bearing the greatest responsibility must be 1) a senior member of their faction and 2) implicated in serious crimes. This is essentially the same analysis that the ECCC will use for prosecuting its senior leaders. The SCSL language may still be narrower in that the accused must bear the greatest responsibility; the use of the superlative suggesting that no unindicted individuals bear more responsibility than the accused. However, the ECCC is still limited to prosecuting only members of Democratic Kampuchea, which actually limits its jurisdiction. On the spectrum of personal jurisdiction, the “senior leaders” language could be viewed as slightly less limiting than “greatest responsibility,” since there remains the possibility that those who bear greater responsibility than the accused may still be unindicted. Figure 2 shows where “senior leaders” would fall on the spectrum of jurisdiction.

While the court is thus limited, it may still have competence over other lower-ranking members of Democratic Kampuchea, through the “most responsible” jurisdiction.


3. “Those Most Responsible”


The ECCC Statute’s use of the phrase, “those who were most responsible," suggests that the drafters did not intend the court to be limited to prosecuting only senior leaders of Democratic Kampuchea. The Group of Experts recognized that many individuals that were not in the charts of senior leaders may have played a significant role in the atrocities: “This seems especially true with respect to certain leaders at the zonal level, as well as officials of torture and interrogation centres such as Tuol Sleng.” To determine the scope of “most responsible,” it is again useful to consider other courts’ interpretations of the same language.

IV. CONCLUSION


The terms “senior leaders” and “most responsible” codified in Article 2 of the ECCC Statute are limiting terms of personal jurisdiction. As such, the ECCC only has competence to prosecute individuals that fall into one of those categories. The use of two phrases allows for a broader scope of indictees to be prosecuted before the chambers. Any analysis of whether an accused fits into one of these categories must consider the gravity of the crime for which the accused is indicted, and the level of responsibility of the accused. This should be done utilizing the Todovic test from the ICTY. Under the “senior leaders” provision of the jurisdiction, an accused must have held a high ranking position in the government or military, had command responsibility for the crimes committed, and have been a member of Democratic Kampuchea. The phrase was
likely intended to encompass members of the Central Committee. Regardless of their rank, they must have had command responsibility over the atrocities committed. Thus, all indictees that are senior leaders should also be most responsible, but not all those most responsible must be senior leaders. The phrase “most responsible” allows for the prosecution of lower level leaders
involved in particularly heinous crimes. While this includes the military and political leadership, it may also include those lower on the chain of command so long as it is shown that they had de facto leadership. This phrase is broader than the “greatest responsibility” terminology used in the SCSL, so allows for more individuals to be tried under the provision. “Most responsible” allows for a wider range of indictees, but is still probably limited to those who were members of the Khmer Rouge. In determining whether someone is most responsible, it will be useful to consider the Todovic test developed in the ICTY. Since all senior leaders must also be most responsible, the use of two phrases is technically redundant. However, the addition of “senior leaders” to the jurisdiction of the court helps focus the prosecution. Even if “senior leaders” is held to not be a jurisdictional requirement, “most responsible” should remain so. Comparing the ECCC’s language to the spectrum of personal jurisdiction in the international criminal tribunals will help facilitate an understanding of who is a senior leader or most responsible. Initially it will fall to the prosecutor to determine who falls in these categories, but it is subject to judicial review. The interpretation of personal jurisdiction will ultimately rest with the ECCC chambers. This is especially true since it is currently the only tribunal using these phrases to define its personal jurisdiction.


V. MOVING FORWARD


The Cambodian Government and the contributing States want to keep the number of indictees in the ECCC low to minimize expenses and political tension. The largest problem facing the ECCC is the delay between the time of the crimes and the trials. Many of the senior and intermediate level commanders have died in the three decades since the crimes were committed. It has been estimated that no more than roughly individuals that could be considered “senior leaders” or “most responsible” are still alive to stand trial. This may explain why the “most responsible” language was added to the “senior leaders” language. To date, five individuals have been indicted and detained for trial at the ECCC. They are Kaing Guek Eav, Ieng Sary, Ieng Thirith, Khieu Samphan, and Nuon Chea. With the exception of Kaing Guek Eav, the indictees were all senior leaders being part of the Central Committee. Kaing Guek Eav, alias Duch, commanded the Tuol Sleng torture center. He is the most likely to be indicted solely under the “most responsible” language of the ECCC Statute. Interpreting the jurisdictional language of the individual hybrid tribunals is just the beginning. As more hybrid tribunals are established, the limiting language of personal jurisdiction will be seen again, perhaps even expanding the vocabulary. Already, there
are talks within the U.N. and the Government of Burundi to establish a Special Chamber to try those “bearing the greatest responsibility” for crimes committed in Burundi. The hybrid system will need consistent and reliable interpretations of jurisdictional language in order to continue prosecuting trials that retain the appearance of fairness.

Wednesday, October 8, 2008

Germany gives 4.3 million dollars to Cambodian Khmer Rouge trial

The Earth Times
Posted: Tue, 07 Oct 2008 15:27:40 GMT
Author: DPA

Phnom Penh - The German government announced it is increasing its support for the trial of former Khmer Rouge leaders in a press release on the embassy website received Tuesday. Germany said it had pledged an additional 4.3 million dollars for the Extraordinary Chambers in the Courts of Cambodia (ECCC) 2009 and 2010.

"This significant contribution from the Federal Ministry for Economic Cooperation and Development (BMZ) has already been announced to United Nations General Secretary Ban Ki-Moon," the press release stated.

"The German Government regards the Khmer Rouge Tribunal as an important step towards trying the atrocities committed by the Khmer Rouge during their reign from 1975 to 1979 and bringing to justice those responsible.

Furthermore the German commitment is linked with the expectation that the tribunal ... will become a model for the development of the legal system and legal culture in Cambodia."

It said the new donation brings direct German government support of the joint UN-Cambodian sponsored tribunal to about 10 million dollars in total, and Germany is also sponsoring a number of indirect support programmes.

It is the second-largest sponsor of the trials behind Japan.

Five former Khmer Rouge leaders are currently in custody for crimes they allegedly committed during their 1975-79 regime, during which up to 2 million Cambodians perished.

The first trial hearings are expected within months, according to court officials.

© 2008 www.earthtimes.org, The Earth Times, All Rights Reserved

Tuesday, October 7, 2008

Members of the Office of Co-Investigating Judges Impartial as per the ECCC IRs?

"The word "court" is not simple. To reach a decision that can protect justice, the court in its
capacity must follow procedures in which justice is ensured not only for the protection of
victims, but also for the defence of the accused, in order to pursue a fact at a particular point. In
another regard, we think this is the will of the Royal Government to establish the court, and a
historical event for the next young generation have proof that brutal atrocities did occur in the
period between 1975 and 1979".

(Interview with You Bun Leng, Co-Investigating Judge, ECCC (Somne Thmey, English translation by Development Weekly) (4 June, 2007)

Monday, October 6, 2008

Corruption complaints at the Khmer Rouge War Crimes tribunal

The Cambodian Tribunal's Trials
FROM TODAY'S WALL STREET JOURNAL ASIA
OCTOBER 2, 2008

Cambodia's new government was sworn in last week, and Prime Minister Hun Sen wasted no time announcing his intention to target corruption and improve the rule of law during his next five years in office. A place to start is with a full investigation of corruption complaints at the Khmer Rouge War Crimes tribunal.

The United Nations Office of International Oversight Services in New York presented the Cambodian government with a letter last month describing complaints of corruption at the tribunal from multiple staffers. But instead of investigating the allegations, Phnom Penh demanded that the original complaints be given directly to "the competent authorities" in Cambodia. It's unclear whether the complainants' identities will be protected.
Since allegations of corruption were publicized in these pages last year, the U.N. has taken steps to clean things up at the tribunal. The Cambodian government has also made a few efforts to shore up its anticorruption credibility -- appointing two new ethics monitors in August and creating a formal mechanism for complaints, albeit one that increases secrecy. The court spokeswoman, who is also one of the monitors, told us one complaint is currently under investigation.

Yet donor nations want to see more serious action. The United Nations Development Program, which oversees donations to the Cambodian side of the court, has suspended salaries to around 250 Cambodian staffers since June and plans to "delay the further release of UNDP-managed funds until the recent allegations of corruption have been resolved," a UNDP staffer told us in an email.

The tribunal also needs to do more to eliminate conflicts of interest. Deputy Prime Minister Sok An is chairman of the government task force responsible for high-level Cambodian staff appointments at the tribunal; a serious corruption case could implicate either him or people he appointed. If Sok An is serious about cleaning up corruption, he will recuse himself from any investigation.

Cambodians deserve a clean and fair trial to redress the deaths of their 1.7 million countrymen who were murdered by the Khmer Rouge. With the first trial due to begin in a few months, there's little time to waste.

Cambodia: Whose Tribunal Is It Anyway?

By Sebastian Strangio


The West is turning the trial of surviving members of the Khmer Rouge - its former allies - into a piece of self-promoting political theatre. For nearly three decades, Cambodians have lived under the shadow of Pol Pot’s ‘Democratic Kampuchea’, a regime whose policies during 1975-79 turned Cambodia into a ‘land of blood and tears’ - a vast agrarian social experiment that enslaved the population and led to the deaths of an estimated 1.7million Cambodians.


In the years since, no senior leaders of the Khmer Rouge have been punished for the atrocities of Pol Pot’s regime. But time may finally be catching up with the surviving Khmer Rouge. Following six years of acrimonious negotiations between the UN and the Cambodian government, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in 2006, with the hope that ‘the senior leaders of the Khmer Rouge and those most responsible for serious crimes [would now] be held accountable for their crimes’ (1). A number of prominent ex-Khmer Rouge, including Nuon Chea, Khieu Samphan and Ieng Sary, have been arrested and are scheduled to enter the dock in the coming months.

But for all its high-minded rhetoric, it’s unclear whether the ECCC will be able to deliver the ‘justice’ it is promising. The ‘mixed’ (joint UN-Cambodian) tribunal is beset by ballooning budgets and legal red-tape, and the proceedings are crawling along at a glacial pace. Last month, the ECCC revised its budget upwards to $169.7million - up from an original $56.3million - and pushed back its expected finishing date until the end of 2011. Even compared to other international tribunals, which have numerous problems of their own, justice for Cambodia isn’t coming cheap. The hybrid UN tribunal in East Timor had an initial budget of just $6million, while the court in Bosnia & Herzegovina is currently trying 400 defendants on a relatively frugal $10million per year (2). So far, just five defendants have been arraigned by the Phnom Penh court - at an ultimate cost of nearly $34million each - and it has yet to move beyond a series of lengthy pre-trial appeals.

However, since the trials are expected to last at least until 2011, there’s every chance that the defendants will be dead before the ECCC has a chance to hand down its verdict. Pol Pot - ‘Brother Number One’ - evaded justice by dying in mysterious circumstances in April 1998. In 2006, the one-legged Ta Mok - nicknamed ‘the Butcher’ for his ruthless purges - died in prison. Of the current defendants, ex-head of state Khieu Samphan suffered a stroke on the eve of his arrest in November last year (3), and Ieng Sary, Pol Pot’s foreign minister, was admitted to hospital on 4 February this year with heart problems (4). With such frail defendants in the dock, speed and efficiency are clearly of the essence.


But if the tortuous gestation of the ECCC is anything to go by, justice may once again elude Cambodia. Indeed, like other international war-crimes tribunals, the ECCC is marked by power politics, political obfuscation and Western grandstanding. In the years following the deposition of the Khmer Rouge by the Vietnamese army in January 1979, few nations outside the Soviet bloc paid any attention to the evidence of Khmer Rouge atrocities. According to the cruel dictates of Cold War realpolitik, many governments - including the United States, Britain, Australia, Singapore and China - aided and abetted the bloody Khmer Rouge insurgency against the new Soviet-backed Phnom Penh government. In September 1979, the UN voted to retain Khmer Rouge representation in the General Assembly, a post the Khmer Rouge occupied until 1991. Meanwhile, Western relief funds flowed to the Coalition of the Democratic Government of Kampuchea (CGDK), a corrupt Khmer Rouge-dominated resistance front, which, as one analyst wryly pointed out, was ‘neither a coalition, nor democratic, nor a government, nor in Kampuchea’ (5). By a dark twist of irony, international funds intended to rebuild the Cambodian state flowed to those most responsible for destroying it.


In the 1980s, journalist John Pilger uncovered evidence that British special forces had offered covert assistance to the CGDK, training Khmer Rouge troops in ‘[land] mines technology’ for use in the ongoing civil war (6). The United States - whose intensive bombing of areas with communist bases during 1969-73 arguably did much to bring Pol Pot to power - pursued a ‘hands-off’ policy, turning a blind eye to China’s continuing support of the Khmer Rouge and the shady activities of the Thai military, which gave its protection to Khmer Rouge top-brass throughout the 1980s and 1990s (7).

With the end of the Cold War and the onset of a UN-brokered peace agreement, Cambodia emerged as the darling of the international NGO community - an ‘aid market’ and developmental blank slate upon which lingering guilt over the West’s connivance in Cambodia’s civil war could conveniently be expiated (8). Free of the paralysing polarities of the Cold War, many Western governments now argued that the time was right for the trial of the Khmer Rouge leadership. In July 1997, Cambodian co-prime ministers Hun Sen and Prince Norodom Ranariddh requested UN aid in establishing a tribunal to bring the remaining Khmer Rouge to justice. The ensuing negotiations, however, demonstrated just how far local and international notions of ‘justice’ diverged.


The Cambodian negotiators consistently argued that the trials had to take place firmly within the context of Cambodian sovereignty and involve a majority of local judges and prosecutors. Many in the international community, on the other hand, expressed fears that a trial conducted in Cambodia’s court system, and under Cambodian law, could never deliver a ‘fair’ and ‘transparent’ verdict. NGOs such as Human Rights Watch and Amnesty International criticised the weakness of the Cambodian judiciary, which was (and still is) more or less subordinate to the ruling Cambodian People’s Party (CPP). The UN negotiating team, led by Hans Corell, the head of the UN Office of Legal Affairs, steadfastly argued that any tribunal had to be composed of international judges and prosecutors, and preferably conducted in a location outside the country (such as The Hague). At several points, the condescending attitude of the UN towards the Cambodian government threatened to derail the Khmer Rouge tribunal altogether. In February 2002, Corell withdrew from the negotiations, infuriated by the ‘obfuscation’ of the Cambodian negotiators. The resulting deadlock prolonged the formation of the ECCC by nearly a year.


Even when a final agreement on the hybrid tribunal was signed in June 2003, it came under fire from Western human rights NGOs for ‘falling short’ of international standards of impartiality and justice. Due to the ‘precarious state of Cambodia’s judiciary’, Amnesty International argued, the UN General Assembly should ‘make the improvements necessary to bring [the tribunal] agreement into line with international laws and standards’ (9). For Amnesty, no trial was preferable to a ‘flawed’ one - a noble sentiment, perhaps, but one that disregarded political constraints, not to mention the advanced age of most of the defendants.


Western guilt has seemingly given birth to the idea that any legitimate trial must be conducted by the West on Cambodia’s behalf. Some human rights activists would undoubtedly prefer a trial within the legal vacuum of The Hague, shorn of the ‘difficulties’ of dealing with the corrupt and ‘inexperienced’ Cambodian legal system. But if the trials are to finally bring justice to Cambodia and heal the wounds of war, Cambodians must have ownership of the process. It’s their future - not the West’s - that is at stake. As American lawyer Gregory Stanton has argued, the real ‘enemy of justice’ in Cambodia is a well-meaning but misdirected legal purism, which, if heeded, would only give succour to Cambodia’s culture of legal impunity (10). Clearly, some degree of justice is better than none at all.


NGOs and Western governments are right to complain about the corruption of Cambodia’s judiciary. But the impartiality of the current tribunal is equally questionable: under the close scrutiny of the international community, eager to see ‘justice’ done, the pressure on the ECCC to reach the expected ‘guilty’ verdict will be enormous. Dutch lawyer Victor Koppe, ex-Khmer Rouge ideologist Nuon Chea’s defence counsel, is right to ask whether a presumption of guilt is built into the political architecture of the ECCC. ‘The [main] question’, according to Koppe, ‘is whether or not everything in this tribunal is institutionalised in such a way that only guilty verdicts can come’ (11).


He has a point. The ECCC’s claim that ‘fair trials will ease the burden that weighs on the survivors’ (12), is pregnant with assumptions, not least of which is the presumption of guilt. And this raises a further question: how would the surviving victims of the Khmer Rouge react if the defendants - widely acknowledged as responsible for crimes against humanity while in power - were to be acquitted by a fair and impartial court? Seen in this light, the ECCC and its international backers seem less concerned with justice - in the sense of fair and equal treatment before the law - than with stage-managing an elaborate piece of political theatre.

The ECCC graphically demonstrates the problems in using ‘justice’ to achieve social or political aims, whether they be ‘resolution’ for the Cambodian people or local judicial reform. But true justice is more than a public relations exercise. Any war-crimes tribunal that is yoked to a political agenda, however noble or high-minded, is of questionable legitimacy. In this context, the legal purism of the UN and human rights NGOs starts to look less like a concern for the quality of the trial process and more like a case of Western vanity and self-aggrandisement again delaying the arrival of justice in Cambodia.


For all its hype, the UN-backed tribunal process is yet to deliver any tangible results, and whether it will manage to beat the remaining Khmer Rouge leadership to the grave is increasingly uncertain. But as the clock runs down, any measure of justice, even if it is not the ‘sanctioned’ justice of the international community, is surely better than the impunity of the present.


(1) FAQ: Extraordinary Chambers in the Courts of Cambodia

(2) ECCC wants $167 million for more staff, Phnom Penh Post, Issue 17 / 02, January 24 - February 7, 2008

(3) Former Khmer Rouge leader suffers stroke prior to arrest, International Herald Tribune, 14 November 2007

(4) Ex-Khmer Rouge leader Ieng Sary still in hospital, Phnom Penh Post, Issue 17 / 02, January 24 - February 7, 2008

(5) John Pilger, ‘Return To Year Zero’, Distant Voices, p.182

(6) John Pilger, ‘Return To Year Zero’, Distant Voices, p.191-3(

7) Tom Fawthrop & Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal, p.59

(8) Grant Curtis, Cambodia Reborn? The Transition to Democracy and Development, p.72

(9) Amnesty International’s position and concerns regarding the proposed Khmer Rouge tribunal, Amnesty International, April 25, 2003

(10) Gregory Stanton, Perfection is The Enemy of Justice

(11) Khmer Rouge victim confronts regime leader in court, The Age, 8 February 2008

(12) FAQ: Extraordinary Chambers in the Courts of Cambodia

Cambodia: Whose Tribunal Is It Anyway?

By Sebastian Strangio

The West is turning the trial of surviving members of the Khmer Rouge - its former allies - into a piece of self-promoting political theatre. For nearly three decades, Cambodians have lived under the shadow of Pol Pot’s ‘Democratic Kampuchea’, a regime whose policies during 1975-79 turned Cambodia into a ‘land of blood and tears’ - a vast agrarian social experiment that enslaved the population and led to the deaths of an estimated 1.7million Cambodians.


In the years since, no senior leaders of the Khmer Rouge have been punished for the atrocities of Pol Pot’s regime. But time may finally be catching up with the surviving Khmer Rouge. Following six years of acrimonious negotiations between the UN and the Cambodian government, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in 2006, with the hope that ‘the senior leaders of the Khmer Rouge and those most responsible for serious crimes [would now] be held accountable for their crimes’ (1). A number of prominent ex-Khmer Rouge, including Nuon Chea, Khieu Samphan and Ieng Sary, have been arrested and are scheduled to enter the dock in the coming months.


But for all its high-minded rhetoric, it’s unclear whether the ECCC will be able to deliver the ‘justice’ it is promising. The ‘mixed’ (joint UN-Cambodian) tribunal is beset by ballooning budgets and legal red-tape, and the proceedings are crawling along at a glacial pace. Last month, the ECCC revised its budget upwards to $169.7million - up from an original $56.3million - and pushed back its expected finishing date until the end of 2011. Even compared to other international tribunals, which have numerous problems of their own, justice for Cambodia isn’t coming cheap. The hybrid UN tribunal in East Timor had an initial budget of just $6million, while the court in Bosnia & Herzegovina is currently trying 400 defendants on a relatively frugal $10million per year (2). So far, just five defendants have been arraigned by the Phnom Penh court - at an ultimate cost of nearly $34million each - and it has yet to move beyond a series of lengthy pre-trial appeals.


However, since the trials are expected to last at least until 2011, there’s every chance that the defendants will be dead before the ECCC has a chance to hand down its verdict. Pol Pot - ‘Brother Number One’ - evaded justice by dying in mysterious circumstances in April 1998. In 2006, the one-legged Ta Mok - nicknamed ‘the Butcher’ for his ruthless purges - died in prison. Of the current defendants, ex-head of state Khieu Samphan suffered a stroke on the eve of his arrest in November last year (3), and Ieng Sary, Pol Pot’s foreign minister, was admitted to hospital on 4 February this year with heart problems (4). With such frail defendants in the dock, speed and efficiency are clearly of the essence.


But if the tortuous gestation of the ECCC is anything to go by, justice may once again elude Cambodia. Indeed, like other international war-crimes tribunals, the ECCC is marked by power politics, political obfuscation and Western grandstanding. In the years following the deposition of the Khmer Rouge by the Vietnamese army in January 1979, few nations outside the Soviet bloc paid any attention to the evidence of Khmer Rouge atrocities. According to the cruel dictates of Cold War realpolitik, many governments - including the United States, Britain, Australia, Singapore and China - aided and abetted the bloody Khmer Rouge insurgency against the new Soviet-backed Phnom Penh government. In September 1979, the UN voted to retain Khmer Rouge representation in the General Assembly, a post the Khmer Rouge occupied until 1991. Meanwhile, Western relief funds flowed to the Coalition of the Democratic Government of Kampuchea (CGDK), a corrupt Khmer Rouge-dominated resistance front, which, as one analyst wryly pointed out, was ‘neither a coalition, nor democratic, nor a government, nor in Kampuchea’ (5). By a dark twist of irony, international funds intended to rebuild the Cambodian state flowed to those most responsible for destroying it.


In the 1980s, journalist John Pilger uncovered evidence that British special forces had offered covert assistance to the CGDK, training Khmer Rouge troops in ‘[land] mines technology’ for use in the ongoing civil war (6). The United States - whose intensive bombing of areas with communist bases during 1969-73 arguably did much to bring Pol Pot to power - pursued a ‘hands-off’ policy, turning a blind eye to China’s continuing support of the Khmer Rouge and the shady activities of the Thai military, which gave its protection to Khmer Rouge top-brass throughout the 1980s and 1990s (7).


With the end of the Cold War and the onset of a UN-brokered peace agreement, Cambodia emerged as the darling of the international NGO community - an ‘aid market’ and developmental blank slate upon which lingering guilt over the West’s connivance in Cambodia’s civil war could conveniently be expiated (8). Free of the paralysing polarities of the Cold War, many Western governments now argued that the time was right for the trial of the Khmer Rouge leadership. In July 1997, Cambodian co-prime ministers Hun Sen and Prince Norodom Ranariddh requested UN aid in establishing a tribunal to bring the remaining Khmer Rouge to justice. The ensuing negotiations, however, demonstrated just how far local and international notions of ‘justice’ diverged.


The Cambodian negotiators consistently argued that the trials had to take place firmly within the context of Cambodian sovereignty and involve a majority of local judges and prosecutors. Many in the international community, on the other hand, expressed fears that a trial conducted in Cambodia’s court system, and under Cambodian law, could never deliver a ‘fair’ and ‘transparent’ verdict. NGOs such as Human Rights Watch and Amnesty International criticised the weakness of the Cambodian judiciary, which was (and still is) more or less subordinate to the ruling Cambodian People’s Party (CPP). The UN negotiating team, led by Hans Corell, the head of the UN Office of Legal Affairs, steadfastly argued that any tribunal had to be composed of international judges and prosecutors, and preferably conducted in a location outside the country (such as The Hague). At several points, the condescending attitude of the UN towards the Cambodian government threatened to derail the Khmer Rouge tribunal altogether. In February 2002, Corell withdrew from the negotiations, infuriated by the ‘obfuscation’ of the Cambodian negotiators. The resulting deadlock prolonged the formation of the ECCC by nearly a year.


Even when a final agreement on the hybrid tribunal was signed in June 2003, it came under fire from Western human rights NGOs for ‘falling short’ of international standards of impartiality and justice. Due to the ‘precarious state of Cambodia’s judiciary’, Amnesty International argued, the UN General Assembly should ‘make the improvements necessary to bring [the tribunal] agreement into line with international laws and standards’ (9). For Amnesty, no trial was preferable to a ‘flawed’ one - a noble sentiment, perhaps, but one that disregarded political constraints, not to mention the advanced age of most of the defendants.
Western guilt has seemingly given birth to the idea that any legitimate trial must be conducted by the West on Cambodia’s behalf. Some human rights activists would undoubtedly prefer a trial within the legal vacuum of The Hague, shorn of the ‘difficulties’ of dealing with the corrupt and ‘inexperienced’ Cambodian legal system. But if the trials are to finally bring justice to Cambodia and heal the wounds of war, Cambodians must have ownership of the process. It’s their future - not the West’s - that is at stake. As American lawyer Gregory Stanton has argued, the real ‘enemy of justice’ in Cambodia is a well-meaning but misdirected legal purism, which, if heeded, would only give succour to Cambodia’s culture of legal impunity (10). Clearly, some degree of justice is better than none at all.


NGOs and Western governments are right to complain about the corruption of Cambodia’s judiciary. But the impartiality of the current tribunal is equally questionable: under the close scrutiny of the international community, eager to see ‘justice’ done, the pressure on the ECCC to reach the expected ‘guilty’ verdict will be enormous. Dutch lawyer Victor Koppe, ex-Khmer Rouge ideologist Nuon Chea’s defence counsel, is right to ask whether a presumption of guilt is built into the political architecture of the ECCC. ‘The [main] question’, according to Koppe, ‘is whether or not everything in this tribunal is institutionalised in such a way that only guilty verdicts can come’ (11).


He has a point. The ECCC’s claim that ‘fair trials will ease the burden that weighs on the survivors’ (12), is pregnant with assumptions, not least of which is the presumption of guilt. And this raises a further question: how would the surviving victims of the Khmer Rouge react if the defendants - widely acknowledged as responsible for crimes against humanity while in power - were to be acquitted by a fair and impartial court? Seen in this light, the ECCC and its international backers seem less concerned with justice - in the sense of fair and equal treatment before the law - than with stage-managing an elaborate piece of political theatre.


The ECCC graphically demonstrates the problems in using ‘justice’ to achieve social or political aims, whether they be ‘resolution’ for the Cambodian people or local judicial reform. But true justice is more than a public relations exercise. Any war-crimes tribunal that is yoked to a political agenda, however noble or high-minded, is of questionable legitimacy. In this context, the legal purism of the UN and human rights NGOs starts to look less like a concern for the quality of the trial process and more like a case of Western vanity and self-aggrandisement again delaying the arrival of justice in Cambodia.


For all its hype, the UN-backed tribunal process is yet to deliver any tangible results, and whether it will manage to beat the remaining Khmer Rouge leadership to the grave is increasingly uncertain. But as the clock runs down, any measure of justice, even if it is not the ‘sanctioned’ justice of the international community, is surely better than the impunity of the present.


(1) FAQ: Extraordinary Chambers in the Courts of Cambodia
(2) ECCC wants $167 million for more staff, Phnom Penh Post, Issue 17 / 02, January 24 - February 7, 2008
(3) Former Khmer Rouge leader suffers stroke prior to arrest, International Herald Tribune, 14 November 2007
(4) Ex-Khmer Rouge leader Ieng Sary still in hospital, Phnom Penh Post, Issue 17 / 02, January 24 - February 7, 2008
(5) John Pilger, ‘Return To Year Zero’, Distant Voices, p.182
(6) John Pilger, ‘Return To Year Zero’, Distant Voices, p.191-3
(7) Tom Fawthrop & Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal, p.59
(8) Grant Curtis, Cambodia Reborn? The Transition to Democracy and Development, p.72
(9) Amnesty International’s position and concerns regarding the proposed Khmer Rouge tribunal, Amnesty International, April 25, 2003
(10) Gregory Stanton, Perfection is The Enemy of Justice
(11) Khmer Rouge victim confronts regime leader in court, The Age, 8 February 2008
(12) FAQ: Extraordinary Chambers in the Courts of Cambodia

Saturday, October 4, 2008

Ieng Sary's lawyers want hearing on indictment appeal

While both the Co-Prosecutors, who have filed an appeal against the indictment of "Comrade Duch," and Duch's lawyers have stated they want the appeal decided based on written submissions, Ieng Sary's defense team has requested an oral hearing.
They claim their client has a right to file submissions related to the charge of Joint Criminal Enterprise, and that the issue is significant enough to warrant an oral hearing. JCE is "one of the most controversial forms of liability," Ieng's lawyers wrote; it exists when two or more people participate in a common criminal endeavor, sharing a common criminal purpose. The charge was not included in the indictment against Duch, although the Co-Prosecutors believe it should be.
"Given the complexity and importance of the issue of whether JCE liability is applicable at the ECCC, an oral hearing is warranted," Ieng's lawyers wrote. "It is in the interest of justice that this issue be vetted in a full, fair and transparent manner."
However, Duch's lawyers and the Co-Prosecutors believe an oral hearing would result in unnecessary delay to the start of Duch's trial. We will have to wait for the judges' decision.
In other news at the somewhat slow-moving court, Nuon Chea's detention has been extended by another year.

ECCC ends ban on communication among defendants in pretrial detention

ECCC ends ban on communication among defendants in pretrial detention

Benjamin Klein at 11:27 AM ET
[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] last Friday ended [decision, PDF] the segregation of five defendants currently in pretrial detention. The decision, released to the public on Wednesday, was a response to an appeal filed by defendant Nuon Chea [PBS backgrounder; JURIST news archive], who argued that the prison conditions were too restrictive. In May 2008, the Pre-Trial Chamber approved the “strict separation between the detainees,” taking away “the right to communicate among themselves.” The judges at that time relied on ECCC Internal Rule 55 [text, PDF], which gives judges the jurisdiction to limit contact between the detainees in the interest of the investigation. They also cited the International Criminal Court (ICC) [official website; JURIST news archive] holding in Prosecutor v. Katanga and Chui, where the ICC ruled:
[Measures] to restrict the communication and the contact...constitute an important restriction of the rights provided for by the detention regime set forth in the Regulations and the RoR [Regulations of the Registry], and therefore they can be imposed if the requirements of necessity and proportionality are met.In overturning the segregation order, the Pre-Trial Chamber found that the “potential for prejudicial collusion” was now negligible, and “that there can be no reason related to investigation purposes justifying that contacts between [Chea and the four others] be restricted.” The Phnom Penh Post has more. The ECCC was established by law [text as amended 2004, PDF] in 2001 to investigate and try surviving Khmer Rouge officials. The Khmer Rouge is generally believed to be responsible for the genocide of an estimated 1.7 million Cambodians [PPU backgrounder] between 1975 and 1979. No top Khmer Rouge officials have yet faced trial. In August 2007, the ECCC brought its first charges against Kaing Khek Iev [TrialWatch profile; JURIST report], who was in charge of the notorious S-21 prison in Phnom Penh. Former Khmer Rouge official Nuon Chea is awaiting trial [JURIST report] for charges [statement, PDF] of war crimes and crimes against humanity.

New ECCC-Related Articles

New Paths in International Criminal Justice?
The Internal Rules of the Cambodian Extraordinary Chambers Guido Acquaviva*
* Legal Officer (Appeals Chamber, ICTY). The opinions expressed in this article are the views of the author alone and do not necessarily reflect the views of the Tribunal or of the United Nations in general. [guido_acquaviva@yahoo.com]

Abstract
The Internal Rules of the Cambodian Extraordinary Chambers adopted in June 2007 provide some insight into how a non-adversarial system might work in the context of a hybrid tribunal with jurisdiction over both domestic and international crimes. This approach presents various novelties, especially with respect to the pre-trial and trial stages of the proceedings, and provides an example of integration into a domestic non-adversarial system of principles derived from international criminal procedure.

New ECCC-Related Review Articles

Forensic Science for Cambodian JusticeMelanie Klinkner*
PhD candidate, Centre for Legal Studies, Bournemouth University, UK. E-mail: mklinkner@bournemouth.ac.uk

Abstract


Cambodia is universally associated with its killing fields – a horrific inheritance from the Khmer Rouge era. Whilst mass grave evidence from that era is referred to in history and social science publications on Cambodia, it has not featured in a legal context to date. The establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) creates an opportunity for a review of this evidence 30 years after the events. Those alleged to be accountable for Cambodia's killing fields are finally being brought to justice. The question is whether this will occur with or without forensic science evidence from the mass graves. This article explores the reasons for using forensic science in the Cambodian context and outlines its potential for legal proceedings. Drawing on relevant literature in the forensic and legal areas, the article provides a brief outline of the legal context created by the ECCC and examines various projects that have recorded evidence relating to the mass graves. Employing an analysis of semistructured, in-depth interviews with forensic and legal experts as well as representatives from the ECCC and the Documentation Center of Cambodia (DC-Cam), the article explores the value of forensic science for the ECCC, including its impact on humanitarian issues in Cambodia.

Cambodia's genocide trial delayed until next year

Ker Munthit
October 2, 2008


PHNOM PENH, Cambodia (AP) — The start of the first trial at Cambodia's genocide tribunal is likely to be delayed until early next year because more time is needed to deal with an appeal for more charges against a Khmer Rouge defendant, officials said Thursday. The news is likely to fuel further frustration among many Cambodians, who have been waiting for justice for nearly three decades after the Khmer Rouge held power in the late 1970s. The communist group implemented radical policies considered responsible for the deaths of an estimated 1.7 million people from starvation, disease, overwork and execution. The U.N.-assisted tribunal is attempting to establish accountability for the atrocities committed in 1975-1979, and the first trial had been expected to start last month.


The latest delay was caused by an appeal by prosecutors to have additional charges lodged against Kaing Guek Eav, also known as Duch, who headed the former S-21 prison, the Khmer Rouge's largest torture facility. "The chance to have a trial for Duch could be in 2009, early next year," said Reach Sambath, a tribunal spokesman, but he was also unable to give a specific date.
The tribunal's pretrial chamber set Dec. 5 for a ruling on the prosecutors' appeal, said Helen Jarvis, the tribunal's public affairs chief. "So there won't be anything before that," she said, also declining to be specific when asked about a possible starting date for a trial. She had previously said the trial for Duch was to open in September.


Youk Chhang — director of the Documentation Center of Cambodia, an independent group researching Khmer Rouge crimes — was not happy with the delay. "What a shame. They surely can prolong the trials but not the lives of the defendants, including Duch," he said. "The hopes of the victims remain scattered at this moment." The 65-year-old Duch is the youngest of the five Khmer Rouge who have been indicted, and all have health problems.

In August, the investigating judges concluded their yearlong investigation into Duch's case, ordering the defendant to stand trial for crimes against humanity and war crimes. But afterward the prosecutors objected, saying the charges were insufficient as they might prevent a full accounting for Duch's criminal responsibility during his tenure at the prison. They said they wanted Duch additionally charged with homicide and torture — crimes under Cambodian national law — and also with joint criminal enterprise for actions that occurred inside S-21 prison.

Friday, October 3, 2008

An Article on Pre-Trial Release at the ECCC (Excerpts)

Judicial Discretion in ECCC Decisions on Pre-Trial Detention against the Backdrop of the Jurisprudence of the International Criminal Tribunals

Stan Starygin

Introduction

The Extraordinary Chambers in the Courts of Cambodia (ECCC) has long been associated with the bringing of the standards of international jurisdictions to Cambodia. The Cambodian government represented by Deputy Prime Minister Sok An expressed a hope that “the ECCC [would] be a model court for Cambodia [and] an inspiration for those considering the structure of other hybrid courts”.[1] The United Nations (UN) represented by Undersecretary General Nicolas Michel endorsed this message by adding that the UN hopes to see the ECCC standing “as a beacon in the region [which will] leave Cambodia with a positive legacy for its efforts in strengthening the rule of law [and] a landmark on [the] road to justice”.[2]

The expectations of the functioning and legacy of the ECCC were thus most ambitious from the outset of the process. Now, two years into the process, is the time for preliminary assessment of whether the ECCC has lived up these expectations. Cognizant that such assessment cannot be undertaken within the confines of one paper, this author believes that it must come as a patchwork of academic literature where each piece examines a particular aspect of the work of the ECCC. With this division of labor in mind, this paper will examine the issue of the exercise of judicial discretion in deciding motions for pre-trial release, the ECCC’s contribution to the international jurisprudence on such, the balance between the statutorily permitted breadth of discretion and the breadth of the actual discretion exercised by the ECCC, and the breadth of discretion exercised by the ECCC through a comparative prism of the other International Criminals Tribunals (hereinafter ‘ICTs’) (five International and Hybrid Tribunals will be analyzed: the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’), the International Criminal Tribunal for Rwanda (hereinafter ‘ICTR’), the International Criminal Court (hereinafter ‘ICC’), the Special Court for Sierra Leone (hereinafter ‘SCSL’), the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘ECCC’).

The choice of judicial discretion in deciding motions for pre-trial release is not that of random nature, but that of the careful selection of an issue which is most open to abuse at the ECCC and the aforementioned ICTs. In municipal law discretion is normally counterweighed by an elaborate system of checks and balances rooted in national constitutions (perhaps, the best known check on judicial discretion in the common law system is the jury system). Conversely, at the international level the system of checks on discretion is often limited to appeal confined to the same Tribunal. Furthermore, ICTs routinely operate in a void of the other two co-equal powers (the executive and the legislature) which in the circumstances of municipal law exercise constitutional checks and balance upon the judiciary, i.e. the national tribunals. The Tribunal law provides for no means through which the public can exert influence upon the exercise of judicial discretion as the judges of the Tribunals are routinely appointed by the UN and only in some cases[3] by national governments. This stands in stark contrast to the public’s power to vote a judge out of office -- guaranteed in a number of common law jurisdictions -- if it believes that he or she has exercised extrastatutory or otherwise unwarranted discretion in the execution of his or her office. In light of this regrettable imbalance of the existing public interest to exercise control over discretion, on the one hand, and statutory silence on the procedures of accomplishing this at ICTs, on the other, academic literature remains one of the few avenues of exertion of influence on the breadth of judicial discretion to which the public can resort. This paper therefore was conceptualized as an effort at demonstrating the current exercise of discretion by the ICTs which was to be presented in a comparative perspective and with an emphasis on the ECCC which is the paper’s focal point.

The choice of examining discretion in the context of decisions on motion for pre-trial release is grounded upon – as discretion itself – the fact that this particular stage of the criminal proceedings is oftentimes most open to abuse due to a variety of factors which emanate from different root causes. The issue of pre-trial detention is additionally least protected by law and existing practice of the courts.

The selected combination of discretion and the assortment of issues associated with pre-trial release, in this author’s opinion, will make for a timely and thematically justified contribution to the developing literature on the ECCC and the wealth of literature on the other International Criminal Tribunals.

I. Definition of Judicial Discretion

Judicial discretion is without a doubt a contentious and amorphous legal term. Numerous attempts have been made to confine it to a manageable albeit non-mathematical definition[4]. Examination of the substance, similarities and differences between these attempts lies outside the scope of this narrative, however. The author nonetheless recognizes that it is crucial to limit the use of the term to a certain uncontested or least contested definition to enable the ensuing analysis. It is, perhaps, prudent to begin by acknowledging that the exercise of discretion is to a large extent akin to choice-making which presupposes a. the existence of such a choice and b. that “there is no uniquely right answer to [this] problem”.[5] It cannot be inferred from the latter that every legal question has a myriad of right answers. In fact most legal questions have one right answer which is derived from the unique statutory pronouncement intended to answer that specific question. In this case no exercise of discretion is in order. The presence of specific statutory language designed to answer a particular legal question might in some instances be insufficient due to the frequent ambiguity of such language which manifests itself in the use of ambiguous and sometimes undefined legal concepts[6]. To overcome the ubiquitous statutory ambiguity courts have developed a wide array of definitions for such terms for which further efforts were made to bring their definitions to manageable if imperfect conformity. Since said conformity has yet to be attained, this paper will eschew any analysis predicated upon or pertinent to the exercise of discretion in cases of the necessity to overcome ambiguous statutory language. Instead, the paper will focus upon the instances of the exercise of discretion where this author posits the two foregoing elements are absent, i.e. a. there is no other choice but the one of the application of relevant statutory language (which always has primacy over other sources of law) and b. there is one uniquely right answer to the problem which is the express language of the law (which is limited to the authority granted by the statute rather than derived from other sources). Any instances of deviation from this two-prong test will be categorized as exercise of discretion and subsequently examined in the forthcoming narrative.

[...]

4. Extrastatutory Discretion at the ICC

Due to the decades of theoretical debates[1] and subsequent political and substantive negotiations[2] the expectations of all aspects normally associated with the functioning of a criminal court of this stature were high.[3] Being a model criminal court, the ICC was expected to resolve the previously unresolved issues of international criminal law, and, inter alia, set out clear parameters of pre-trial release predicated on a fair balance between the rights of the accused and the public interest in prosecutions. The analytical response to this aspect of the ICC’s contribution to the reconciliation of the two foregoing antagonisms has heralded this effort as “unremarkable”.[4] Said response has evidently been proffered in respect to the statutory construction of the relevant provisions of the ICC LCD. The following analysis will help determine the extent to which the foregoing conclusion applies to the extrastatutory developments pertaining to pre-trial release, and the amount of discretion which the Court has exercised to effect such developments.

The ICC PTDT bears no resemblance to those of the previously discussed ICTs, albeit there are naturally some normative but not otherwise resemblances. The core of the ICC PTDT is set out in the ICC LCD as part of the ICC Pre-Trial Chamber’s arrest power:

A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in Article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.[5]

Article 58/1 sets out the following conditions:

(a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person’s appearance at trial;
(ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or
(iii) Where applicable, to prevent the person from continuing with the commission of the crime or a related crime which is within the jurisdiction of the Court and which arise out of the same circumstances.

The accused therefore must show the non-existence of 1. “[R]easonable grounds to believe that he or she has committed a crime within the jurisdiction of the Court” conjunctively[6] with one of the following[7]: 2/a. The accused is a flight risk; 2/b. The accused, if released, might obstruct the investigation or the court proceedings; 2/c. The accused might commit the same or related crime within the jurisdiction of the Court, if released. Hence, an ICC Chamber or Single Judge must be unsatisfied with the existence of conditions set out in only two of the foregoing prongs of the ICC PTDT. It has been argued that “these prongs must be construed as exhaustive and cannot be extended by means of interpretation”.[8]

Contrary to the aforementioned contention, however, the ICC sought to create an additional statutory prong for its PTDT which resembles the “after giving the host country and the State to which the accused seeks to be released the opportunity to be heard” prong of the previously discussed ICTs. This measure was not accomplished by amending the ICC Statute, a lengthy process of political negotiations, but by issuing a judicial edict[9]:

For the purposes of a decision on interim release, the Pre-Trial Chamber shall seek observations from the host State and from the State to which the person seeks to be released.[10]

The status of the foregoing requirement as a new prong of the ICC PTDT was subsequently upheld in a number of judicial decisions.[11]

The foregoing statutory expansion[12] of the ICC PTDT has not concluded the Court’s efforts to alter the ab initio statutorily prescribed ICC PTDT. This time, however, the Court has resorted to extrastatutory means of altering the ICC PTDT.

One instance of such alteration was the Court’s sua sponte assertion that the gravity of the crimes allegedly committed by the accused must be a factor in deciding his motion for pre-trial release[13]:


Considering that in reaching its Decision, the Chamber was further guided by the gravity of the crimes Thomas Dyilo [Mathieu Ngudjolo Chui] had allegedly committed […][14]

The Court proceeded by explaining that the reason for consideration of “the gravity of the crimes” is the gravity of the punishment which would be meted out in case of the successful prosecution of the accused thus prompting him not to appear for trial:

Considering that in reading its decision, the Single Judge was further guided by […] the possibility of facing a long prison sentence […][15]

The second instance of extrastatutory construction of the ICC PTDT was the Court’s extension of the statutory prong of “appearance for trial” to beyond an accused’s desire to flee the Court’s jurisdiction, and to include a prong of an accused’s merely ability to do so, of granted pre-trial release:

Considering that in reaching its Decision, the Chamber was further guided by [the accused’s] ability to abscond the jurisdiction of the Court […][16]

The Court further asserted that the fact that an accused has availed himself of his right to confrontation constitutes a virtual bar to pre-trial release:

Considering further that in the Review of the Decision, the Chamber held that having confirmed the charges against Thomas Lubanga Dyilo, it was of the view that […] the identities of many witnesses have been disclosed to the accused during the confirmation hearing […][17]

In this case, the Court is, however, silent about whether the accused was informed about the adverse effect that the exercise of his right to confrontation might have upon the success of his motion for pre-trial release and whether the Chamber has “satisfied itself that the person [the accused] has been informed of his or her rights under this Statute”. [18]

The Court has additionally found that the instability in the country to which an accused seeks to be released may be set out as an additional de facto prong of the ICC PTDT:

Considering further that in the Review of the Decision, the Chamber held that having confirmed the charges against Thomas Lubanga Dyilo, it was of the view that […] the situation in the Democratic Republic of Congo still appeared volatile […][19]

Lastly, the Court has deemed it within its discretionary authority to introduce a sub-test within the statutory ICC PTDT which is that of balancing nature:



Considering further that in assessing the reasonableness of the detention the Chamber shall outweigh the genuine requirement of public interest with the rule of respect for individual liberty.[20]

The foregoing analysis has demonstrated the significant extent of the exercise of judicial discretion in deciding motions for pre-trial release by the ICC. In addition to being far broader than the exhaustive confines of the statutory ICC PTDT, such approach has created an environment which has rendered proffering successful arguments for pre-trial release virtually unfeasible: 1. For the extrastatutory prong of “gravity of the crimes”, an accused has no way of influencing the composition of the subject-matter jurisdiction of the Court[21], nor can he affect the charges brought against him by the prosecution; 2. For the extrastatutory prong of “gravity of punishment/length of sentence” prong, an accused has no means of curing his application to satisfy this prong due to the sentencing being within the province of the ICC Trial Chambers[22]; 3. For the extrastatutory prong of “ability to abscond”, an accused is unable to influence the factors which, in the Pre-Trial Chamber or a Single Judge’s opinion, may be conducive to flight; this being a passive condition will render any postulations of the accused moot; 4. For the “exercise of the right to confrontation” prong, the Court’s holding that an accused’s exercise of his right to confrontation has adverse effects on his motion for pre-trial release is inimical to the Rome Statute’s intent to create respect for the rights of the accused; furthermore, an accused’s situation vis-à-vis such holding is exacerbated by the fact that the Rome Statute does not bear a stipulation making it mandatory for the Pre-Trial Chamber to inform the accused about such adverse effects; 5. For the “volatile situation in the country of release” prong, an accused has no way of curing the volatility of the situation which the country to which he seeks to be released faces; 6. For the extrastatutory prong of “public interest with the rule of respect for individual liberty”, this balancing test essentially presents a question of whether a value-driven and thus abstract notion of rights of the accused can in its significance to the public outweigh the practical and thus highly palpable considerations of the Court-enforced isolation and confinement of an accused in which the former stands no chance of prevailing due to its abstract nature and the fact that the essence of its creation was rather that of humanity than utility.

It can be maintained that the foregoing alterations of the ab initio statutory ICC PTDT amount to an exercise of broad extrastatutory discretion unfettered by the statutorily prescribed confines or those imposed upon it by the set of principles widely regarded as rights of the accused. Thus, considering the foregoing findings and the high expectations associated with the creation of the ICC, it is hard to disagree with the author who had referred to the ICC’s contribution to the process of conferring broader rights upon the accused as “unremarkable”[23] which particularly rings true if applied to the Court’s contribution to the international jurisprudence on pre-trial release.

2. Extrastatutory Discretion at the ECCC

The ECCC, as of today, has been the latest comer to the scene of ICTs. However since the Extraordinary Chambers had taken 9 years to negotiate, discussions of its creation for a period of time ran parallel with those of the creation of the SCSL and the Serious Crimes Unit (hereinafter ‘SCU’) and Special Panels for Serious Crimes (SPSC) in Timor-Leste[24]. In addition to the timing of their creation, these three tribunals also bear similarities due to their hybrid nature which presupposes a co-equal participation of the national government of a particular state and the UN. These similarities, however, do not extend to the construct of the PTDTs developed by these ICTs where the SCSL adopted, mutatis mutandis, the ICTR PTDT and the ECCC created a distinctly different test.

The statutorily prescribed ECCC PTDT thus contains the following prongs:

a) There is well founded reason to believe that the person may have committed the crime or crimes specified in the Introductory or Supplementary Submission; and


b) The Co-Investigating Judges consider Provisional Detention to be a necessary measure to:
i) Prevent the Charged Person from exerting pressure on any witnesses or
Victims, or prevent any collusion between the Charged Person and
accomplices of crimes falling within the jurisdiction of the ECCC;
ii) Preserve evidence or prevent the destruction of any evidence;
iii) Ensure the presence of the Charged Person during the proceedings;
iv) Protect the security of the Charged Person; or
v) Preserve public order[25]

It is evident that the drafters intended for the list of “necessary measures” to be exhaustive which manifests itself in the creation of an enumerated list of prongs with the existence of which the Co-Investigating Judges (hereinafter ‘CIJs’) need to satisfy themselves prior to ordering pre-trial detention. It thus can be maintained that the use of judicial discretion to create other “necessary measures” prongs is extrastatutory.

Pursuant to this postulation the Extraordinary Chambers has acted extrastatutorily[26] on a number of occasions outlined below.

This first was instantiated in the Extraordinary Chambers’ assertion that “the gravity of offenses alleged against the Charged Person” constitutes a virtual bar to his release:

[…] the acts alleged against the Charged person are of a gravity such that, 30 years after their commission, they profoundly disrupt the public order to such a degree that it is not excessive to

conclude that the release of the person concerned risks provoking, in the fragile context of today’s Cambodian society, protests of indignation which could lead to violence and perhaps imperil the very safety of the person concerned.[27]

The foregoing assertion of the ECCC CIJs has since been replicated verbatim in all orders of pre-trial detention the Extraordinary Chambers has thus far issued.[28] The adoption of this position by the Extraordinary Chambers has further eventuated in the accretion of the “ensure the presence of the Charged Person during the proceedings” prong of the ECCC PTDT to include an extrastatutory element of the projected length of sentence, if convicted:

Furthermore, because [the accused] may be sentenced to life imprisonment, it is fear that he may seek, as a consequence, to flee any legal action.[29]

It is noteworthy that an attempt was made to render the confines of the foregoing outgrowth of the “ensure the presence of the Charged Person during the proceedings” prong more expansive and include the following language:

It may, thus, be feared that the Charged Person, who faces a maximum sentence of life imprisonment if convicted, will be tempted to flee the legal process.[30]

This foregoing phasing of the relevant prong effectively ceases its limitation to “flee any legal action”, but expands it to “be tempted to flee the legal process”, where the former bears an implicit requirement of demonstrating completion while the latter does not.

The ECCC Pre-Trial Chamber (hereinafter ‘PTC’[31]) has further altered a statutory prong of the ECCC PTDT by superimposing an extrastatutory interpretation upon it bringing about a difference which will prove drastic to a reasonable observer. The said statutory prong was crafted with the intent of testing whether an accused was likely to actively tamper with victims or witness to which effect the prong in question was framed in the following manner:




Prevent the Charged Person from exerting pressure on any witnesses or victims, or prevent any collusion between the Charged Person and accomplices of crimes falling within the jurisdiction of the ECCC.

The drafters’ intent of limiting the aforementioned prong to actions purposefully initiated by an accused in order to tamper with victims and witnesses was thus framed into the “exerting pressure” clause. In its application of this prong the ECCC PTC, however, has altered the core of its statutory construction by replacing the activity element with that of passivity thus averring that

[…] although this allegation refers to an event which occurred twenty-five years ago, the Pre-Trial Chamber finds that, taking expressed fear of testifying before the ECCC by potential witnesses into consideration, this incident, if known by the victims, could adversely affect the willing of the witnesses to testify if the Charged Person were released.[32]

It is therefore maintained that the significance of the foregoing alteration has effectively supplanted the relevant statutory prong with one constructed extrastatutorily. Such construction has eventuated in the creation of an express extrastatutory bar to pre-trial release enunciated by the ECCC PTC in the following:

It is foreseeable that this fear will return and prevent them [potential witnesses] from testifying should the Charged Person be released. In the particular context of the events that happened at S-

21, the mere presence[33] of the Charged Person in society can exert pressure on witnesses and prevent them from testifying.[34]

The “prevent from exerting pressure on victims and witnesses” prong of the ECCC PTDT has been further extrastatutorily expanded to include a metamorphosis of an accused’s right to discovery into an adversity to his pre-trial release:

The Pre-Trial Chamber notes that the whole Case File has been made available to the Charged Person, including the names of potential witnesses. Even if the witnesses have already been heard and have given evidence, there is still a chance that they may have to be heard later during further investigations and/or hearings.[35]

This averment has later reverberated in a number of the Extraordinary Chambers that ensued:

Whereas the nature of the alleged crimes makes it difficult for a suspect to identify and influence the very large number of potential witnesses before the judicial investigation begins, the same is




not true once the Charged Person has knowledge of the identity of the inculpatory witnesses and victims involved in the proceedings.[36]

Lastly, the Extraordinary Chambers has introduced and consistently relied upon the extrastatutory prong of “the fragile context of today’s Cambodian society”.[37]

The judicial discretion exercised to create anew and extract extrastatutory prongs of the ECCC PTDT has resulted in fairly significant alteration of the said PTDT thus aiding in rendering it virtually insurmountable to the accused: 1. For the “gravity of alleged offenses against the Charged Persons [the accused]”, an accused possesses no means of affecting the subject-matter jurisdiction of the ECCC which, to a larger extent, is composed of the most serious crimes which affect large numbers of persons[38]; 2. For “the length of projected sentence” prong, an accused similarly possesses very limited means of affecting the punishment which might be meted out by the Extraordinary Chambers; at this stage of the proceedings, however, neither the accused, nor the CIJs or the PTC any facility to predict the length of the sentence which might be imposed later in the proceedings; 3. For the “mere presence” prong, an accused’s motion for pre-trial release cannot reasonably be rejected on the basis of a belief that he will not violate the conditions of his pre-trial release, but that such release can affect some of the prosecution witnesses in a way which might prompt them to withdraw from testifying against such accused; if such were the rule, no pre-trial releases would be ordered in perpetuity as most criminal cases have live witnesses for the prosecution who might not appreciate the reinstatement of the liberty of an accused pending trial; 4. For the “knowledge of the identities of the witnesses [for prosecution]” prong, identities of the witnesses for the prosecution are disclosed to an accused by virtue of an express right to this effect[39]; the exercised of recognized statutory rights of the accused, by definition, cannot be adduced as having an adverse effect to his application for pre-trial release; in addition, there is no statutory stipulation of the existence of such adversity, nor is there a requirement to inform the accused of any side effects of the exercise of the rights statutorily conferred upon him; 5. For the “fragile context of today’s Cambodian society” prong, provided such fragility is an existing reality, it is not in one person’s (an accused’s) power to overcome its multifaceted forces to the extent which satisfies the Extraordinary Chambers.

V. Exercise of Judicial Discretion in Deciding Motion for Pre-Trial Release at the ECCC v. That of the Other ICTs

The core question this paper set out to answer is whether the judicial discretion currently exercised by the ECCC in deciding motions for pre-trial release is in line with the existing standards of international justice and the Extraordinary Chambers’ own statutory prescriptions. This author contends that no comparison of the ECCC with the other ICTs on the question of discretion can be complete and fair without leveling the playing field to enable such comparison first. To this effect it is salient to note the other ICTs has developed in what can best be described as environments heavily influenced by the common law tradition[40]. Conversely, the Extraordinary Chambers was created with a pronounced emphasis on Cambodian law[41] which is a law developed by a France-influenced civil law system. The role of judges and judicial discretion in these two dominant systems has been found to be drastically different:

Perhaps the most striking aspect of the common law system lies in the hugely influential role of judges. In civil law systems, judges – at least in theory – have a purely interpretative role, within which doctrinal guidance leaves little room for individual discretion.[42]
The permissible breadth of judicial discretion at the ECCC was thus, ab initio, limited to the relevant statutory prescription. This author, furthermore, maintains that the only meaningful method of interpreting the foregoing statutory prescription is by way of applying the textualist approach which is rendered particularly warranted due to the high degree of international and national politicization which had underpinned the process of negotiations of the establishment of the Extraordinary Chambers. With the role of the legislature in a democratic society recalibrated to accommodate the needs of the process of establishment of the ECCC, it is therefore not of tremendous relevance what the legislature intended to say (i.e. the legislative intent), but what it did say. To this effect, the law which established the Extraordinary Chambers[43] was framed to confer primacy on Cambodian law:

The procedure shall be in accordance with Cambodian law.[44]

And

[all Chambers of the Court] shall follow existing procedures in place.[45]

The law which established the ECCC further grants leave to resort to international law and internationally recognized standards of justice in a limited number of circumstances:

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, guidance may be also sought in procedural rules established at the international level.[46]

And

If these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards [the Chambers of the Court] may seek guidance in procedural rules established at the international level.[47]

The statutory language, however, makes it clear that unrestrained judicial discretion may not be invoked to justify the favoring of international law over municipal law. Instead, the legislature has introduced a test of inadequacy of the municipal law the satisfaction of which justifies a resort to international law and standards. Pursuant to this the Extraordinary Chambers must a. exhaust the grant means to address the particular matter available under Cambodian law, and b. declare the Cambodian law inadequate to address the particular matter and indicate the particular prong of the inadequacy test which it fails. Upon the completion of the foregoing prescribed procedure, the Extraordinary Chambers are at liberty to exercise discretion on matters pertaining to the allocation of the appropriate sources of international law and standards. Such discretion is in no way constrained statutorily.

Ab initio, the Extraordinary Chambers demonstrated abidance by said statutory pronouncement which manifested itself in the incorporation, mutatis mutandis, of the PTDT of the Criminal Procedure Code of the Kingdom of Cambodia (hereinafter ‘CPCKoC’) into the ECCC IRs[48], rather than opting for the PTDT common to the ICTY, the ICTR, and the SCSL. In its application of the CPCKoC PTDT, the Extraordinary Chambers, for a period of time, could not rely upon the stare decisis of the CPCKoC PTDT developed by the national court system due to a. the CPCKoC draft had yet to become law at the time of the ECCC’s first decision[49], and b. stare decisis is not a common law concept which is absent in the mind of Cambodian courts. Considering the foregoing, the Extraordinary Chambers was therefore limited to the resort to the statutory language as the basis for its decisions on pre-trial detention.

Absent a sine qua non or a conjunctiveness requirement in the ECCC PTDT, the Extraordinary Chambers has been unable to focus its resources on a single prong the dissatisfaction of which of a Chamber would render the PTDT fatal saving a sizable amount of court time allocated for pre-trial procedures. This opportunity – although in a slightly different form – remains to exist due to the disjunctive nature of the ECCC PTDT which requires the satisfaction of only two prongs (out of six) to order pre-trial detention or dismiss a motion for pre-trial release. The Extraordinary Chambers, either in the first instance or on appeal, has elected not to avail itself of the foregoing statutory grant and the stare decisis to the identical effect developed and applied with sui generis consistency by the ICTR.

The Extraordinary Chambers has, to a larger degree, managed to abide by the statutory language of the ECCC PTDT in which respect its record is reminiscent only of that of the ICTR, with the other ICTs, as the foregoing analysis evinces, straying far from the confines of their respective PTDTs.

This, however, has not always been the case which has resulted in the exercise of discretion by the CIJs and the ECCC PTC to create extrastatutory stipulations of the ECCC PTDT, which were warranted by necessity in some cases and otherwise in others.

The case in which the exercise of discretion has been warranted to create extrastatutory addendums has thus far been the question raised by the defense of whether a pre-trial detention of a certain length and ordered by another court (the concept of abuse of process) has the overriding power which renders the application of the ECCC PTDT inappropriate and has the immediate effect of the reinstatement of an accused’s liberty pending trial. The Extraordinary Chambers has responded to this challenge with sound judgment resultant in the exercise of judicial discretion in the void of relevant statutory instruction. It is, however, salient to note that in its reasoning of the case the Extraordinary Chambers elected not to follow the ICTR in Barayagwiza, which faced with a very similar detention pattern had arrived at a diametrically opposite conclusion.[50]

Further, the Extraordinary Chambers has discretionally introduced alterations in the statutory construct of the ECCC PTDT which was intended to be exhaustive. The principles underpinning such alterations are, however, not novel in international practice and include such well-established extrastatutory addendums to the PTDTs of other ICTs as the “gravity of offenses alleged” principle and the “[projected] length of sentence” principle, routinely seen as parts one whole. These are followed by less established, however occasionally proffered, principles of “mere presence [of an accused at liberty]” and even more controversial “free look” theory of the ICTY framed by the ECCC as “knowledge of the identities of the witnesses [for prosecution]”. Lastly, the Extraordinary Chambers has demonstrated a great reliance on the “volatile situation in the country of release” principle framed by the ECCC as “the fragile context of today’s Cambodian society”. This extrastatutory principle has existed in international criminal law to verbalize the judicial apprehension about releasing the accused into active zones of armed conflicts, such as those of the 1990s Yugoslavia and today’s Uganda and the Democratic Republic of the Congo. Any argument, however, that the gravity of the situation in Cambodia contemporaneous of the existence of the Extraordinary Chambers meets the foregoing international standard of “volatility” would be manifestly untenable.

In sum, the Extraordinary Chambers has demonstrated a remarkable degree of restraint in the exercise of judicial discretion in deciding motions for pre-trial release in the context of international criminal justice (represented in this narrative by four other tribunals). This has manifested itself in this analysis’ finding that discretion was exercised by the ECCC only where “there [was] no uniquely right answer to [a] problem” prescribed statutorily and “choices existed” in sources which were reasonably attributable. Furthermore, the Extraordinary Chambers’ direction in refusing to act sua sponte is most commendable and will be fully realized if applied to a larger pool of issues pertaining to pre-trial detention.
[1] Benjamin B. Ferencz, An International Criminal Court, A Step toward World Peace: A Documentary History and Analysis (Oceania Publication) (1980); Mauro Politi, Guiseppe Nesi, The Rome Statute of the International Criminal Court: A Challenge to Impunity (Ashgate) (2001); Eric K. Leonard, International Relations Theory and the International Criminal Court: Understanding Global Justice, Ph.D. dissertation (2001); M. Cherif Bassiouni, The Legislative History of the International Criminal Court (Transnational Publishers) (2005).
[2] Phillip Kirsch, The Development of the Rome Statute, in Roy S. Lee, International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, and Results, Aspen Publisher, 451-462 (1999); William A. Schabas, An Introduction to the International Criminal Court, (Cambridge University Press) (2001); M. Cherif Bassiouni, The Legislative History of the International Criminal Court, (Transnational Publishers) (2005).
[3] William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice (U of Penn Law School, Public Law Working Paper No. 07-08), (2007); Human Rights Watch, International Criminal Court: Making the International Criminal Court Work (A Handbook for Implementing the Rome Statute), Human Rights Watch (2001); Rosemary Byrne, Promises of Peace and Reconciliation: Previewing the Legacy of the International Criminal Tribunal for Rwanda, European Review, (Cambridge University Press), (2006).
[4] Salvatore Zappala, Human Rights in International Criminal Proceedings, Oxford University Press, May, 2003, p. 73.
[5] ICC Statute (the Rome Statute), Art. 60/2.
[6] Prongs (a) and (b) of the Article 58 component of the ICC PTDT are connected by a conjunctive conjunction “and”.
[7] Sub-prongs (i), (ii), (iii) are connected by a disjunctive conjunction “or”.
[8] Supra 91, p. 74.
[9] Regulations of the Court (ICC-BD/01-01-04), adopted: fifth plenary session (17-28 May, 2004).
[10] Regulations of the Court (ICC), Regulation 51.
[11] Prosecutor v. Dyilo, “Order on the Application for Release”, ICC-01/04-01/06, 29 May, 2006; Prosecutor v. Gombo, “Decision Requesting Observations on the Defense’s Application for Interim Release”, ICC-01/05-01/08, 4 August, 2008; Prosecutor v. Katanga and Chui, “Review of the “Decision on the Application for Interim Release of Mathieu Ngudjolo Chui”, ICC-01/04-01/07, 23 July, 2008.
[12] This author believes this expansion to be accomplished ultra vires the Rome Statute (the ICC Statute), however, any further discussion of the reasons upon which such belief rests would fall outside the scope of this paper.
[13] “Gravity of the crimes” is set out as a statutory prong of the ICC PTDT under the circumstances of “Arrest Proceedings in the Custodial State” (Rome Statute, Art. 59/4):
In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfill its duty to surrender the person to the Court.
It must be noted that the ICC PTDT under the circumstances of “Arrest Proceedings in the Custodial State” has no application in under the circumstance of ICC custody of a person.
[14] Prosecutor v. Dyilo, “Second Review of the “Decision on the Application for Interim Release of Thomas Lubanga Dyilo”, ICC-01/04-01/06, 11 June, 2007; Prosecutor v. Katanga and Chui, “Review of the “Decision on the Application for Interim Release of Mathieu Ngudjolo Chui”, ICC-01/04-01/07, 23 July, 2008.
[15] Prosecutor v. Katanga and Chui, “Review of the “Decision on the Application for Interim Release of Mathieu Ngudjolo Chui”, ICC-01/04-01/07, 23 July, 2008.
[16] Prosecutor v. Dyilo, “Second Review of the “Decision on the Application for Interim Release of Thomas Lubanga Dyilo”, ICC-01/04-01/06, 11 June, 2007.
[17] Ibid.
[18] The Rome Statute, Art. 60/1.
[19] Supra 103.
[20] Ibid.
[21] The subject-matter jurisdiction of the ICC, as spelled out in Arts. 6,7,8 of the Rome Statute contains the following crimes:
(1) Genocide: any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
(2) Crimes Against Humanity: any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health (Article 6).
(3) War Crimes: in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Willful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Willfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has surrendered at discretion; Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict (Article 8).
Aggression: currently undefined.

[1] Sok An, Remarks at the Reception Following the Swearing In of National and International Judicial Officers for the Extraordinary Chambers in the Courts of Cambodia, 3 July, 2006 (available at http://www.cambodia.gov.kh/krt/pdfs/Sok%20An%20speech%20for%20reception%203%20July%202006.pdf; last visited: 30 August, 2008). [2] Nicolas Michel, Remarks at the Reception Following the Swearing In of National and International Judicial Officers for the Extraordinary Chambers in the Courts of Cambodia, 3 July, 2006 (available at http://www.cambodia.gov.kh/krt/pdfs/Nicolas%20Michel%20Opening_Remarks%203%20July%202006.pdf; last visited: 30 August, 2008). [3] This is true in case of hybrid tribunals, such as the SCSL and the ECCC. [4] This can be observed in a number of works of de Smith, Dworkin, Kadish, Hart, Hawkins, Dicey and others. [5] J.E. Evans (London, 1980; 4th Edn) at p. 278. Cf. Evans v Bartlam [1937] AC 473, 489 (HL) cited in R. Pattenden, Judicial Discretion and Criminal Litigation (Claredon Oxford Press, 1990), at p. 2. [6] The accused’s right to be tried without undue delay is one such concept which is not numerically defined in any existing international statute and which has been at the core of pre-trial detention controversy, particularly since the establishment of the currently existing International Tribunals.

[...]


[22] The Rome Statute, Art. 76.
[23] Supra 91.
[24] The establishment of the SCSL was in principle agreed upon by 2001, however the Court was not established until 2002 (Brett Sillinger, Sierra Leone: Current Issues and Background, (Nova Publishers Inc), 37 (2003); SCU and SPSC were created in 1999 by the United Nations Transitional Administration in East Timor (UNTAET (U.N. SC, Res, 1272 (1999).
[25] ECCC Internal Rules, Rule 63/3 (Revised 1 February, 2008).
[26] This chapter is limited to testing the adherence of the ECCC to its statutory PTDT which is a question of both structure and substance. This paper does not, however, examine the quality and reasonableness of the assertions put forward by the Extraordinary Chambers which this author pursues in another paper (Stan Starygin, Was There Good Reason to Order Pre-trial Detentions of the Ex-Khmer Rouge Senior Leaders and Those Most Responsible?, 2008 (unpublished manuscript; on file with the author).
[27] Prosecutor v. Kaing, “Order of Provisional Detention”, 002/14-08-2006, 31 July, 2007.
[28] Prosecutor v. Noun, “Order of Provisional Detention”, 002/14-08-2006, 19 September, 2007; Prosecutor v. Thirith Ieng, “Order of Provisional Detention”, 002/14-08-2006, 14 November, 2007; Prosecutor v. Sary Ieng, “Order of Provisional Detention”, 002/14-08-2006, 14 November, 2007; Prosecutor v. Khieu, “Order of Provisional Detention”, 002/14-08-2006, 19 November, 2007.
[29] Supra. 115.
[30] Prosecutor v. Thirith Ieng, “Order of Provisional Detention”, 002/14-08-2006, 14 November, 2007; Prosecutor v. Sary Ieng, “Order of Provisional Detention”, 002/14-08-2006, 14 November, 2007.
[31] It is important to note that in contrast to the ICC PTC’s functions vis-à-vis pre-trial detention, which is that of first instance, the ECCC PTC has the function of the last and only instance of appeal of motions for pre-trial release with the Extraordinary Chambers (ECCC IRs, Rule 73).
[32] Prosecutor v. Noun, “Decision on Appeal against Provisional Detention Order of Noun Chea”, 002/19-09-2007-ECCC (PTC01), 20 March, 2008; this was also used as a side argument in Prosecutor v. Thirith Ieng, “Decision on Appeal against Provisional Detention Order of Ieng Thirith”, 002/19-09-2007-ECCC/OCIJ (PTC02), 9 July, 2008, where the PTC stated that:
“It might also influence the witnesses’ fear of testifying before the ECCC which has already been expressed by potential witnesses”.
[33] Emphasis added.
[34] Supra. 115.
[35] Ibid.
[36] Prosecutor v. Sary Ieng, “Order of Provisional Detention”, 002/14-08-2006, 14 November, 2007; Prosecutor v. Thirith Ieng, “Order of Provisional Detention”, 002/14-08-2006, 14 November, 2007; Prosecutor v. Khieu, “Order of Provisional Detention”, 002/14-08-2006, 19 November, 2007.
[37] Supras. 115 and 116.
[38] The subject-matter jurisdiction of the ECCC contains the following offenses recognized under Cambodian and international law and prescribed by the Law Establishing the ECCC (amended: 27 October, 2007):

Crimes Set Forth in the 1956 Penal Code: homicide, torture, religious persecution (Art. 3 new);
Genocide (as defined in the Convention on the Prevention and Punishment of the Crime of Genocide (1948): acts committed with the intent to destroy, in whole or in part, a national, ethical, racial or religious group, such as: killing members of the group; causing serious bodily or metal harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children from one group to another group (punishable acts: attempt, conspiracy to commit, participation) (Art. 4);
Crimes against Humanity: acts committed as part of a widespread and systematic attack directed against any civilian population, on national, political, ethical, racial or religious grounds, such as: murder, extermination, enslavement, deportation, imprisonment, rape, persecutions on political, racial, and religious groups, other inhumane acts (Art. 5);
Grave Breaches of the Geneva Conventions: willful killing, torture or inhumane treatment, willfully causing great suffering or serious injury to body or health, destruction and serious damage to property, not justified by military necessity and carried out unlawfully and wantonly, compelling a prisoner of war or a civilian to serve in the forces of a hostile power, willfully depriving a prisoner of war or civilian the rights of fair and regular trial, unlawful deportation or transfer or unlawful confinement of a civilian, taking civilians as hostages (Art. 6);
Destruction of Cultural Property: (pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict) (Art. 7);
Violations of the Vienna Convention of 1961 on Diplomatic Relations (Art. 8).

[39] ECCC IRs, Rule 55/6.
[40] Daryl A. Mundis, From ‘Common Law’ Towards ‘Civil Law’: The Evolution of the ICTY Rules of Procedure and Evidence, Leiden Journal of International Law, 14, 367-382, (2001); Mark A. Drumbl, Atrocity, Punishment, and International Law, Cambridge University Press, 127 (2007).
[41] The title of the agreement between the Royal Government of Cambodia (RGC) and the UN was illuminative of such emphasis: “The Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea” (Emphasis added); In the subject-matter jurisdiction the clause “serious violations of Cambodian law” precedes those of “international humanitarian law and custom” and “international conventions recognized by Cambodia” (ECCC Law, Art. 2 new); There is a stipulation which permeates the ECCC Law and which mandates that all proceedings be conducted “in accordance with existing procedures in force” (Art. 20 new, Art. 23 new, Art. 33 new). The foregoing must always apply unless Cambodian procedures
“do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standards, guidance may be sought in procedural rules established at the international level”.

[42] Margaret Fordham, Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia, Asian Law Institute, National University of Singapore, at http://law.nus.edu.sg/asli/docs/margaret2005_01.pdf (last viewed: 10/02/08).
[43] “The law which established the Extraordinary”, for the purposes of this narrative, must be understood as a combination of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea (hereinafter “the ECCC Agreement”) and the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the period of Democratic Kampuchea (hereinafter ‘the ECCC Law’).
[44] ECCC Agreement, Art. 12.
[45] ECCC Law (amended: 2004), Arts. 20 new, Art. 23 new, Art. 33 new.
[46] Supra 132.
[47] Supra 133.
[48] This author maintains that the ECCC IRs were adopted ultra vires the law which established the ECCC, however, since this matter falls outside the scope of this publication, it is argued in a separate paper (Stan Starygin, Setting an Example of the Rule of Law by Breaking the Law? (2008) (unpublished manuscript; on file with the author).
[49] The first decision of the ECCC was handed down on 31 July, 2007, whereas the CPCKoC was not in force until late August, 2007.
[50] Prosecutor v. Barayagwiza, “Decision”, ICTR-97-19-AR72, 2 November, 1999, where the ICTR Appeals Chamber found that

[…] the abuse so egregious and the violations so numerous that it concluded that releasing the Appellant and dismissing the charges against him was the only possible remedy. The Appeals Chamber further found that the dismissal and release had to be with prejudice to the Prosecutor. It concluded that ‘as troubling as this disposition may be to some, the Appeals Chamber believes that to proceed with the Appellant’s trial when such violations have been committed, would cause irreparable damage to the integrity of the judicial process.