Ex-International Co-Prosecutor on ECCC

LAWFARE AND WAR CRIMES TRIBUNAL: Lawfare and International Tribunals: A Question of Definition? A Reflection on the Creation of the "Khmer Rouge Tribunal"

NAME: Robert Petit*

BIO:

* Robert Petit was the first International Co Prosecutor for the Extraordinary Chambers in the Courts of Cambodia from 2006 to 2009 and is now a Counsel with the War Crimes Section of the Ministry of Justice of Canada. The opinions expressed herein are solely his own.

LEXISNEXIS SUMMARY:
... Eventually rising to the top would be a former lower level Khmer Rouge cadre, Hun Sen, who would become Prime Minister of the new regime in the 1980s and remains so today. ... Faced with the massive crimes committed by the Khmer Rouge and their continued military activities, in 1979 the new Cambodian regime put on trial in abstentia two of the Khmer Rouge leaders, Pol Pot, the head of the movement, and Ieng Sary, its Foreign Minister. ... However, the push for true accountability continued, in significant part due to the efforts of Cambodian civil society and the United States, fresh from the success of Rome and the creation of the International Criminal Court. ... The United Nations echoed this and stated that any such mechanism involving the United Nations must meet international standards and that the Experts Reports recommendations were useful guidance. ... For Hun Sen and the Task Force he appointed to negotiate with the United Nations, the key issue was control of the proceedings. ... The procedural laws governing the ECCC are the applicable Cambodian laws. ... After about a year of investigations conducted jointly by our office, my national colleague refused to forward for investigations two cases of five individuals who, I believed fall well under the jurisdiction of the ECCC due to their responsibility in the deaths of hundreds of thousands of victims.

ARTICLE: A Review of the Jurisprudence of the Khmer Rouge Tribunal

NAME: Robert Petit and Anees Ahmed*

BIO:

* Robert Petit is Counsel in the Crimes Against Humanities and War Crimes Section of Justice Canada. He was formerly the International Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia ("ECCC"). Anees Ahmed is the International Senior Assistant Prosecutor of the ECCC. The views expressed in this article are solely those of the authors. The authors thank Merryn Quayle and Elena Rose, former ECCC legal interns, for their assistance in the preparation of this article.

LEXISNEXIS SUMMARY:
... Nature of the Tribunal The founding documents envisage the Tribunal as a hybrid institution that is based on the application of national and international laws and employs national and international officials. ... The Trial Chamber noted that in the case of an alleged violation of an accused's rights, even if such violation cannot be attributed to the Tribunal, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of the action in question. ... Provisional Detention and Bail Since the beginning of its judicial proceedings and the subsequent arrest of the five charged persons, the Co-Investigating Judges, the Pre-Trial Chamber, and the Trial Chamber have heard applications for release from detention on a number of occasions. ... In response, the Co-Prosecutors submitted that the amnesty and pardon did not immunize Ieng Sary from prosecution by the Tribunal because, among other reasons, assuming that the royal pardon was issued in relation to the same crimes for which Ieng Sary is currently being charged before the ECCC, such a pardon is not valid for those crimes as they have a jus cogens status in international law. ... As there is no appeal from decisions of the Pre-Trial Chamber, the Co-Prosecutors based their request on the Trial Chamber's authority under Rule 98 to "change the legal characterization" of the crimes set out in the Indictment. ... The Pre-Trial found that the appeal was inadmissible, noting that the Co-Investigating Judges' orders to cease posting information related to the judicial investigation and that an order to remove "the offending content" from the website is not subject to appeal before the Pre-Trial Chamber under the Internal Rules.