Judicial Discretion in ECCC Decisions on Pre-Trial Detention against the Backdrop of the Jurisprudence of the International Criminal Tribunals
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”. 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”.
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 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. 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”. 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. 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 and subsequent political and substantive negotiations the expectations of all aspects normally associated with the functioning of a criminal court of this stature were high. 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”. 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.
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 with one of the following: 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”.
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:
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.
The status of the foregoing requirement as a new prong of the ICC PTDT was subsequently upheld in a number of judicial decisions.
The foregoing statutory expansion 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:
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 […]
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 […]
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 […]
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 […]
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”. 
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 […]
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.
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, 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; 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” 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. 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
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 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.
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. 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.
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.
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’) 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.
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 of the Charged Person in society can exert pressure on witnesses and prevent them from testifying.
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.
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.
Lastly, the Extraordinary Chambers has introduced and consistently relied upon the extrastatutory prong of “the fragile context of today’s Cambodian society”.
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; 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; 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. Conversely, the Extraordinary Chambers was created with a pronounced emphasis on Cambodian law 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.
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 was framed to confer primacy on Cambodian law:
The procedure shall be in accordance with Cambodian law.
[all Chambers of the Court] shall follow existing procedures in place.
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.
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.
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, 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, 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.
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.
 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).
 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).
 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).
 Salvatore Zappala, Human Rights in International Criminal Proceedings, Oxford University Press, May, 2003, p. 73.
 ICC Statute (the Rome Statute), Art. 60/2.
 Prongs (a) and (b) of the Article 58 component of the ICC PTDT are connected by a conjunctive conjunction “and”.
 Sub-prongs (i), (ii), (iii) are connected by a disjunctive conjunction “or”.
 Supra 91, p. 74.
 Regulations of the Court (ICC-BD/01-01-04), adopted: fifth plenary session (17-28 May, 2004).
 Regulations of the Court (ICC), Regulation 51.
 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.
 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.
 “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.
 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.
 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.
 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.
 The Rome Statute, Art. 60/1.
 Supra 103.
 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.
 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).  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).  This is true in case of hybrid tribunals, such as the SCSL and the ECCC.  This can be observed in a number of works of de Smith, Dworkin, Kadish, Hart, Hawkins, Dicey and others.  J.E. Evans (London, 1980; 4th Edn) at p. 278. Cf. Evans v Bartlam  AC 473, 489 (HL) cited in R. Pattenden, Judicial Discretion and Criminal Litigation (Claredon Oxford Press, 1990), at p. 2.  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.
 The Rome Statute, Art. 76.
 Supra 91.
 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).
 ECCC Internal Rules, Rule 63/3 (Revised 1 February, 2008).
 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).
 Prosecutor v. Kaing, “Order of Provisional Detention”, 002/14-08-2006, 31 July, 2007.
 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.
 Supra. 115.
 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.
 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).
 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”.
 Emphasis added.
 Supra. 115.
 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.
 Supras. 115 and 116.
 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).
 ECCC IRs, Rule 55/6.
 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).
 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”.
 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).
 “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’).
 ECCC Agreement, Art. 12.
 ECCC Law (amended: 2004), Arts. 20 new, Art. 23 new, Art. 33 new.
 Supra 132.
 Supra 133.
 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).
 The first decision of the ECCC was handed down on 31 July, 2007, whereas the CPCKoC was not in force until late August, 2007.
 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.