A New Paper on the ECCC (Unpublished)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.