ECCC Reparations

It Is Just Like Finding Out That There Is No Hidden Message from Satan on Stairwell to Heaven

2012-01-24T19:05:00.001-06:00

The International Civil Party Co-Lawyer recently lashed out at the defense for picking and choosing the pieces of international legislation which suited them. Even for this process which has seen more than its fair share of entertaining statements from all quarters, this one stands out.

The International Civil Party Co-Lawyer’s statement was doubtless made out of frustration with the avalanche of motions and the deluge of objections which came from the defense which sparked a full-scale evidentiary rules debate. Shaming the defense for wasting the court’s time will not go far because the defense is not in the least ashamed by what they have done and are doing: they see it as doing their due diligence. What the International Civil Party Co-Lawyer needs to get comfortable with is the fact that the defense is not a part of the truth-seeking expedition of this court. The International Civil Party Co-Lawyer (just when they thought hiring a French lawyer would help the transition) may have confused that with the function of the Co-Investigating Judges and, of course, the bench but the defense is not of their ilk. Perhaps, this understanding is crucial to the participation in this process. While the defense (particularly the Noun Chea and Ieng Sary counsel) can be seen as suspect of abusing the process by filing motions which have no other possible purpose than to show that the defense is doing its due diligence and proffer itself as an example of good lawyering, it would be ludicrous for the Trial Chamber to entertain the International Civil Party Co-Lawyer’s argument that the defense is being selective of which pieces of international legislation it chooses to rely upon. I imagine that the remedy the International Civil Party Co-Lawyer sought was for the Trial Chamber to direct the defense to base its arguments on both the international legislation which supports their arguments and that which speaks against them. Would the International Civil Party Co-Lawyer care to show us the part of the Cambodian Criminal Procedure Code (CPC) which permits the Trial Chamber to make such an order? I hope the International Civil Party Co-Lawyer has a creative and sophisticated interpretation of combined multiple provisions of the CPC which -- through intricate trapezoidal diagrams -- conflate into a solid supporting platform for this statement and that this statement was not a mere result of too many cups of coffee to stay awake through the prosecution’s ‘we are all in this together’ speech.

The Ieng Sary defense strikes again. It simply cannot keep itself out of the news for as much as a day. Mr. Karnavas, Sir, does this look like the Hague to you? I understand that the architecture of this court’s building leaves as much to be desired as the architecture of the building in the Hague you work in. But, did you notice there is a plaque on the building with some weird Sanskrit-based language and there is no fountain that no one has ever seen work in front of the building? Before we get to the indicia of reliability but may I try to assist you with the indicia of difference? This is not the ICTY and this is not the States and there is no common law here. The CPC is not suggestive of or coterminous with 3,000 other procedural rules and it means exactly what it says unless it is silent on the matter. Art. 321 of the CPC tells you everything you need to know, i.e. “in criminal cases all evidence is admissible”. Which part of “all” needs further explanation? I know it is disappointing (it is kind of like finding out that playing Stairway to Heaven backwards won't get you Satan's message to the world) but life is full of them. There is one caveat which is the “unless it is provided otherwise by law” and there is no law in this case which provides otherwise because the law we wrote on the matter in this country is clear and it bars you from accessing international law for reason of that clarity. No, it is not because this is Cambodia and it by definition has an inferior legal system; the Swedish criminal procedure code has the same provision and it is applied exactly how it is written (at least last I checked). We all are thrilled that you have personal knowledge of some ICTY cases and that you can clubber the unsuspecting International Civil Party Lawyer who does not and cut her ego to size. It is fun to watch and thank you for this entertainment, Sir, but we are trying crimes against humanity here not trying to find thrills and gags for when The Life and Times of Tim is not on. Why don’t we let Steve Dildarian do comedy and let this court do law and fact?

Now, under art. 321 the court considers “the value of the evidence submitted for examination following the judge’s intimate conviction”. A bit of unfortunate translator’s language here but what the clause meant to say is that the prima facie test is applied by the judges in the Chamber. This is not a public procedure, nor is it open to the parties for contestation (here’s how it is meant to work: the judges open the documents on their computers – or in the Cambodian context look at the paper – and say ‘ah, okay, looks good enough’ with ‘enough’ being the operative word). When the clause says that the court considers “the value of the evidence”, it refers to probative value, not prima facie value as it never was the intent to have the court belabor its finding of the prima facie value. Yes, Mr. Karnavas, Mr. Smith can introduce any evidence and have it found of prima facie value without a hearing and regardless of your objecting (which no one will find out about because no one is required by law to ask; you might file a motion but no one is required by law to read it), even if that evidence sat under Youk Chhang’s mattress (is the color of that mattress the reason you want him in court? otherwise, does anyone contest that the search for exculpatory evidence for your client has been as much a part of DC-Cam’s mandate as the search for exculpatory evidence for the Nazis has been a part of the Holocaust Museum in D.C.’s mandate? Mr. Smith, where are you on this?) for the last 15-some years. And yes, it is the prosecution’s job to meet the standard of proof requisite to impute this evidence to your client but he does not need to meet the beyond reasonable doubt standard simply to have it shown to your client (to which your client can say ‘I do not remember this document’ or something to this effect). Due diligence is one thing, but let’s not get carried away here.

Lastly, any party can present any evidence at any point in the proceedings which is framed in the following clause of art. 321: “the judgment of the court may be based only on the evidence included in the case file or which has been presented at the hearing”. Mr. Smith, do note the disjunctive ‘or’ in this clause that means that Mr. Karnavas – who is spot-on here – can introduce any evidence whenever he wants to.

The Trial Chamber has to recognize that parties should be allotted time to present their views but this does not mean allowing the parties to prattle and throw tooth picks and leftover food at one another until the morning coffee wears off or they turn off the air-conditioning for the day at the court. The Chamber has extensive powers to exercise control over the proceedings and should use these powers to cut out all the attempted grandstanding when the language of the law is clear: “art. 321 says … the interpretation of which of art. 321’s language are the parties contesting? none of it, okay, moving on, the court calls Witness A 1”.

New Publication on ECCC Reparations

2012-01-23T19:24:00.000-06:00

Victim Participation and the Trial of Duch

at the Extraordinary Chambers in the Courts

of Cambodia

PHUONG N. PHAM, PATRICK VINCK, MYCHELLE BALTHAZARD,

JUDITH STRASSER AND CHARIYA OM*

Abstract

The trial of Kaing Guek Eav, alias Duch (Case 001), at the Extraordinary Chambers in the Courts of Cambodia (ECCC) was the first in the history of international

criminal justice in which surviving victims of alleged crimes could participate directly in international criminal proceedings as civil parties. In this study, we interviewed all 75 civil parties residing in Cambodia, including those who had ultimately been denied civil party status at the conclusion of the trial in Case 001. The objective was to learn about their experiences in participating in the ECCC proceedings. The results are compared with data from a nationwide survey of the general population. The results show that the Cambodian civil parties viewed positively their overall experience of participating and testifying. However, civil parties who had their status denied felt anger, helplessness, shame, and worthlessness. Compared to the overall population who lived under the Khmer Rouge, civil parties were more negative about the impact of the trial on their (1) acceptance of loss and reaching closure, (2) forgiveness of the perpetrators, and (3) perceptions as to whether the trial had improved the rule of law in Cambodia. Many civil parties lacked understanding about key aspects of the trial, including sentencing. The

results emphasize the importance of victims’ participation in the proceedings, but also suggest that participation alone is unlikely to bring about healing, closure, and reconciliation for the victims. Future international courts must develop the resources and mechanisms that ensure a meaningful and effective participation of

victims, and engage participants in a dialogue over procedures and expectations.

Time to Take a Can of Whup A … Out of the Pantry

2012-01-19T03:34:00.001-06:00

The Supreme Court Chamber (SCC) ruled on Ieng Sary’s appeal against the Trial Chamber’s decision to compel Ieng Sary to be present in court “during the opening statements”. The SCC disposed by finding the appeal inadmissible for being outside the ambit of R. 104’s immediate appeals.

This may or may not be correct as the text of the appeal is not available to the public and SCC did not offer a detailed argument for inadmissibility but the question here is why did the SCC need to go to the forest for berries when they are right here in the fridge nicely wrapped with a big label across saying ‘berries’ and a bow to pull open by? If Ieng Sary’s appeal was limited to the “opening statements”, as the SCC states in its decision, then whatever the grounds for the appeal might have been at the time of the compulsion of Ieng Sary’s presence in court they had become moot by the time the appeal was filed. What am I missing here?

From here, the Chamber found its way to the straight road of correctness and rejected the defense’s allegations of the Trial Chamber’s interference with the administration of justice. Well, almost. If the appeal is inadmissible for reasons of R. 104 (or the mootness of the issue which is the correct reason for which to find on admissibility), then the Chamber is barred from discussing its merits (which it did by finding R. 35 arguments without merit). A decision cannot find the appeal inadmissible and yet discuss its merits. Occam’s razor. We have a lot to learn from the Medieval lawyer-monks. Also known as the economy of means.

Ieng Sary’s defense’s papering of this Court in an escalating manner is an entirely other kettle of beans. Due diligence is required of counsel and asserting the suspect/accused/convicted person’s rights is part of this due diligence. Abuse of the right to appeal isn’t. Let’s understand the reason for this appeal: Ieng Sary who stands accused of the highest tier of international crimes finds his cell more agreeable than the chair in the courtroom (which is understandable because the quality of cells at the ECCC is only matched by the quality of cells in Scandinavia; it is particularly curious that half of the budget of the court is contributed by a country whose detention facilities leave so much to be desired I wouldn’t know where to start but I digress). The defense goes ahead and argues that Ieng Sary’s discomfort is of such magnitude that it prevents him from effectively assisting in his defense. Must have been a really bad chair. Perhaps, something custom-built on the basis of the Spanish Inquisition’s blueprints. On a serious note, though, there has to be a point where the SCC opens a can of R. 35 whup-a… on the defense and this point has been reached. Some time ago now.

Hal, What’s ‘Expedite’ Mean and Please, Do Not Take Us Back to the Issaraks

2012-01-14T05:12:00.003-06:00

The Trial Chamber President enjoined the parties to be mindful of the need to expedite the proceedings in the now fragmented Case 002. The prosecution agreed with that and invited the Chamber to interrupt its cross-examination of Noun Chea as the Chamber saw fit. Alas, the Chamber did not take the invitation.

This sent the prosecution off on an exploratory mission which all but took us back to the Big Bang. On this wild ride the prosecution took us back to the inception of Pol Pot’s communist party and made us sit through the insufferable debate over the meaning of the words ‘appointed’ and ‘elected’ with the accused (for the love of God, 4 people sat in a small apartment on Charles de Gaulle and decided that Pol Pot would be the secretary of the party; the conversation went something like this “Saloth, we want you to be the secretary; okay, we are done here, what do you guys want in your sour soup? sure thing, shrimp would be great; I know just the place”). What is a ‘people’s group’? Was it a part of the party? Did NC facilitate KS’ flight to the marquee? How many times did NC visit Office 100 when it was by the Vietnamese border? Who cares??? Maybe someone somewhere does and maybe the prosecution has a perfect plan the execution of which depended on this line of questioning. Maybe there is a genius plan behind all this. But, for those of us of average intelligence it is almost impossible to see what relevance any of this has to the temporal jurisdiction of this Court. But I am sure I am not alone who is grateful to the prosecution for not taking us all the way back to the Issaraks to find out how the Issarak movement influenced the impressionable mind of NC as a young man. Thank you for this. Please, do not take us back to the Issaraks. Because if this happens, the prosecution might realize that the character of the growing up NC would not be sufficiently evident to the Chamber without testing how the introduction of the agricultural tax by the French a couple of decades prior to NC’s birth affected NC’s mindset.

Suddenly, out of nowhere and after an excruciating line of questioning regarding NC’s alleged meeting with KS at the bank of some river in Ratanakiri, the prosecution lays “the seizing of people” question on the accused. It was about time as our coffee just about started wearing off! All the Chamber needed to know before this question could have been put to the accused was that NC was a ranking member of the Communist Party of Kampuchea (CPK) and a member of the Party’s Standing Committee and then boom! did you participate in the formulation of the policy one element of which was “seizing of the people”? Yes or no? And off to that wherever the road takes you. But, of course, before that we needed to know when and how the Labor Party changed its name to the CPK and who was in the room when it happened (I would much rather have found out what Pol Pot liked in his sour soup; I think having grown up away from the water he was a snail man (there are bigger ones that are particularly good with a salt and pepper mix with a little lime twist) but has this been tested in a court of law? I think the public has the right to know)).

The accused took all these questions and – like Clinton asked the certain question by the grand jury – tried to turn them into trigonometric identities and formulas (I am paraphrasing Jello Biafra here and I would like to give the man a shout). Regardless of the relevance of the prosecution’s questions, they have achieved at least one thing by these lines of questioning: they have shown us that NC is probably not telling us the truth, the whole truth, and nothing but the truth; that, or he was the world’s least informed deputy secretary of a communist party. The prosecution has also made us wonder whether NC’s defense is really planning on going ahead with the ‘I knew nothing about the military and I knew nothing about anything but education (we normally use the unkind word ‘indoctrination’ in the English language for this)’ line of defense. If so, are they kidding? Either that or NC’s defense team has put all its eggs into the basket of the Supreme Court saying that the executive’s interference with the process has been so great that nothing but a termination of the proceedings against NC will serve as an adequate remedy. Let’s just see how that goes.

For the prosecution: please, do not take us back to the Issaraks.
For the Chamber: no, the taxpayers of the Western countries and Japan are not paying to hear about every minute detail of each accused's life (this is what biographies are for). For the defense: it might not seem that way but this country's criminal procedure does permit objections and, please, tell us that the defense is not relying on the 'I do not know' defense theory (I apologize for using 'theory'; it is too big a word for what we have seen so far).

A New Year, a New Beginning?

2012-01-10T03:58:00.000-06:00

He ended up leaving a few weeks after many of his staff quit and for a while there it felt like the end of times at the International Co-Investigating Judge’s Office. But, through the regular motions of a garden variety Ragnarok the world was rebuilt and the vacancy left by Judge Blunk was filled by Judge Laurent Kasper Ansermet. But, was it rebuilt into a brave new world? This depends on the perspective. On the one hand, Judge Ansermet appears to have taken the cue from his predecessor and is intent on doing the exact opposite. This on some level makes sense as Judge Blunk resigned due to being attacked from every quarter of civil society (most attackers never served a day in the civil service leave alone in the UN so it would be fair to note that most of them had no idea what formidable forces Blunk was up against; but Blunk’s actions could not be given the benefit of the doubt because no one was that gullible and so the house of cards he was building did not just fold but went up in flames). The only way Ansermet will be given a less favorable treatment by the watchdogs will be if he does things differently. On the other hand, Judge Ansermet seems to have trouble reading the law (or at least what passes as law under the shingle of the Internal Rules (IRs)).

While things shifted on the international side of the CIJs’ domain, they have doubtless stayed the same on its Cambodian side. The UN Legal Counsel Patricia O’Brien’s visit to Cambodia to put out the fire was interpreted by her and the Cambodian government very differently with O’Brien claiming that she had impressed it on the Cambodian government that the ECCC process was not to be interfered with and the Cambodian government arguing that O’Brien deferred to the Cambodian authorities on cases 003 and 004 (reading their press releases one might wonder if O’Brien and the Cambodian government attended the same meeting).

In this environment, Judge Ansermet decided to brief the press on the developments in 003 and 004 to kick off the new year. He picked an interesting time to do so – the day when his Cambodian counterpart had a compensatory day off for Victory over the Genocide Day. Ansermet’s Cambodian counterpart, You Bunleng, interrupted his day of rest to lash at his international colleague. The English translation of Judge You’s press release translated into more precise English, essentially, says that Judge Ansermet had no right to act alone under Rule 56 of the Internal Rules (IRs) which governs this specific type of situation. Judge You could have stopped there but his indignation with the action of his international counterpart would not let him and went on to make it personal by attacking Ansermet’s professional ethics. Judge Ansermet replied, essentially, pointing the finger for not releasing information relevant to Case 003 and 004 at Judge You and diverting the heat from himself. Not good. Not a good start. Particularly not considering the fact that Judge You happens to be right: R. 56 is screaming the word ‘jointly’ and Judge Ansermet clearly tried to turn what was supposed to be a tango into a … whatever people dance alone. While people get over professional disagreements fairly quickly and fairly easily, once personal attacks are launched, there is simply nowhere to go. This is particularly true in Cambodia.

Now that the gauntlet has been thrown, Judge Ansermet is likely to continue presenting himself as Siegfried (the name has been somewhat discredited by his predecessor but let’s see if he can bring it back) and try to paint a picture of Judge You as von Rothbart of this Swan Lake.

One of the comedic parts of this is that someone involved in the IR drafting process knew something like this would inevitably happen which is why R 38 was written in a way that in simple language says “no, we are not going to get you a babysitter; you are of equal stature, figure out how to get along on your own” (in the legal language this is represented by “disagreement between the Co-Investigating Judges regarding matters referred to in sub-rule 2 above shall not be submitted to the procedure for settlement of disagreements set out in Rule 72”). Getting along will not be easy, however, if at all possible. If Judge Ansermet decides to reverse the non-suit order in Case 003 and move investigations along in both Case 003 and Case 004, the PTC will have its hands full and things will get very, very interesting and very, very soon.

2011-12-27T00:39:00.004-06:00

On Journalistic Integrity and on Who Dropped the Ball

The International Co-Prosecutor (CP) and the defense recently went at it over the admissibility of a juicy nugget of evidence – Thet Sambath’s book based on his interviews with Noun Chea which had taken place over a number of years. The CP claimed that they had put the book on the case file and the defense rebuffed it with a ‘we haven’t seen it’ only to evoke the CP’s less than kind rebuke that the defense’s inability to follow the development of the case file was not the prosecution’s problem. While attacking the adducing of the book as a matter of due diligence, the defense would have gone at it full throttle had they read the book or otherwise known its contents. Both the defense and the prosecution dropped the ball. Thet Sambath’s work did not exactly come out of nowhere and was not exactly unknown to those who looked. One would think that if you are a defense lawyer representing a high-profile client who had been interviewed by at least 50 people the years leading up to the establishment of the ECCC and Noun Chea’s subsequent arrest, you would talk to your client about these interviews and possibly ask if any of them had been videotaped. You would then proceed by running a couple of searches through amazon, bookstore websites and international databases and see if anyone has published any of those interviews, in whole or in part (a search of this kind would have brought this up: http://www.amazon.com/Behind-Killing-Fields-Victims-Pennsylvania/dp/0812242459/ref=sr_1_2?ie=UTF8&qid=1324962850&sr=8-2

Interestingly, this book came out about a year and a half ago and has since trickled all the way to Australia (where I bought it; costs close to $100 in Australia so allow me to recommend amazon instead) but no one sent a copy to Noun Chea’s defense (I am sure the publisher is very apologetic about this) but the prosecution did get the wind of it, even if a couple of days before the beginning of the proceedings in 002 (yet another miracle of the holiday season). If reading is not this Court’s forte, perhaps, viewing is. The documentary based on the same interviews as the book must have been shown on Singapore’s Channel NewsAsia about a dozen times in the last less than a year (that I am aware of).

Why is all the fuss about admitting this book – and the movie sometime down the road, I am sure – into evidence? The defense will be inconsolable when they find out. Thet Sambath was no ordinary researcher. Most of the rest of us came out to Pailin for a couple of days, interviewed Noun Chea and were out. Not Thet Sambath. He started long before most. He had a hunter’s patience. He kept coming back and kept talking about things of no consequence until a few years down the road he became Noun Chea’s confidant and got Noun Chea to say on camera what he had wanted him to say from the start, the truth. This was not a minor matter of interest to only about a dozen historians on the period (oh, Pol Pot learned how to dance polka when he was 7; how interesting; but really, who cares?). He got Noun to say that people were executed and that the Communist Party of Kampuchea (CPK) ordered the executions. Thet then relayed to Noun that “some” argued that instead of executing its enemies the CPK should have imprisoned them to which Noun answered “well, it is a matter of opinion” essentially saying ‘yes, we killed them and we were right but I can see that others are entitled to their own opinions and probably would have done it differently had they been in our shoes back then’. A juicy nugget of evidence that has the prosecution’s work cut out for them as nothing beats a confession (particularly an uncoerced and perfectly admissible one under the very permissive evidentiary rules of the Cambodian criminal procedure). If the defense waits around a bit longer, it will be able to get its hands on a copy of the DVD which is coming out in the States in February (http://www.amazon.com/Enemies-People-2-Disc-Special/dp/B00578K2H6/ref=sr_1_1?ie=UTF8&qid=1324962850&sr=8-1 look out, it might not be “available in stores near you” and it might take time for it to become available in Holland); alternatively, there are, of course, other methods for a court to subpoena evidence that is in public domain nonetheless (some of them are unsavory such as buying a pirated copy of the film in Phnom Penh or borrowing it from the riverfront joint which shows it for 3 bucks a pop or a P2P download; but, of course, with it being a court of law, here is an idea, how about asking Teth or whoever owns the copyright to see if they mind or would like to say 'no' to a criminal jurisdiction).

While his defense team is in for this astonishing holiday season gift of a discovery (which, trust me, will keep giving), Noun Chea knows what is on those interview tapes. Thet got him good. He says he was not aware he was being videotaped. Sure. There are segments of the film where Thet walks around Noun’s yard filming him with a camcorder. Didn’t notice that thing in his hand? There are many segments when Thet sits across the table from Noun and films him as he speaks. Didn’t notice a huge piece of plastic sitting on a perfectly clean table? Sure, there is always possibility. What Noun has trouble grasping is how Thet could do a number like this on him. He took Thet into his life and developed a fatherly bond with him. Thet ate at his house. They did gardening together. Thet made promises regarding these tapes to Noun telling him that they would only be used for Thet’s family archives (interestingly Thet repeats that in the film; perhaps, Thet represents the school of thought which sees us all, the human race that is, as one big family in which case, yes, he has held his promise and has only let his “family” see the tapes; I am proud to be a part of Thet’s “family” and I am sure so are thousands, if not millions, of others who have seen the film). Noun considered him a friend (although he said in court that he did not but this is not how their relationship comes across from the tapes) and became close to his family. A lesson to learn for Noun and a treasure trove of CPK history for the rest of us.

In light of this, it is particularly entertaining to see the Noun defense papering the Court with motion after motion contesting things of such infinitesimal value to their client’s case it bemuses the observer while being blissfully unaware of a major piece of inculpatory evidence the prosecution is about to sling at them (next time, duck, and pretend you know what they are talking about). The Noun defense team’s due diligence is now limited to at least telling their client that his copyright (such as it is in this case) and his right to privacy are not deal-breakers when it comes to the admissibility of evidence in Cambodia and evidence of ‘core international crimes’ anywhere.

While the prosecution only named a handful of those who had interviewed Noun Chea in his Pailin home, there is many more and the defense will be in for a treat if the prosecution manages to dig up those interviewers’ transcripts.

2011-12-25T02:39:00.002-06:00

Ho Ho Ho: Defense Support Section (DSS)’s Christmas Dream of Fair Trial Guarantees and Pre-Trial Chamber (PTC)’s Diving Expedition

DSS petitioned the Pre-Trial Chamber (PTC) with a request to order a stay of the proceedings in Case 003 and to compel the Office of Administration (OA) to cooperate with the DSS on recruiting counsel for the suspects in Case 003 “in order to provide effective legal representation to the suspects in Case 003 for the purpose of proceedings before the [PTC]. The DSS argued that, essentially, the suspects must be represented in all disputes which may arise during the investigating stage of the proceedings and which are lodged with the PTC for resolution.

The PTC groped around for any authority to admit this type of motion and found it in the case law of the Special Tribunal for Lebanon (STL). From there the PTC, in full scuba diving gear, plunged itself into the depths of the ocean only known to the bottom dwellers and sunk pirate ships leaving the safe, comfortable and most importantly prescribed by law harbor of Cambodian law. At the depths of the ocean through which the sun shines the PTC picked up an International Covenant for Civil and Political Rights (ICCPR) article which the Chamber found relevant but as many things superficial unsatisfactory. The PTC dove deeper and deeper and yet deeper at which level it dug up an antic from the European Court of Human Rights (ECtHR) case law which it had to pry from underneath a lanternfish. With the antic in tow the PTC rushed back up to the surface by a float cord (ECHR First Commentary) making a safe return, albeit ending up on the wrong side of the harbor. During all these impressive calisthenics and a contortionist’s tricks, art. 98 (assistance of lawyers in police custody) and art. 143 (notification and placement under judicial investigation) of the Cambodian Criminal Procedure Code (CPC) were sitting at the harbor in bewilderment wondering if Vegas might be taking bets on whether the PTC would ever notice them (even if it had to be after they resurfaced with the treasure trove pried from underneath the lanternfish) and what kind of odds Vegas might give them. As Vegas wouldn’t take their call, art. 98 and art. 143 got pensive; art. 98 got off to wonder what in its text was so irreparably wrong that it sent off the PTC on a scuba diving expedition despite the fact that the PTC would have needed to show that either art. 98 (1) did not deal with the matter the PTC was looking at or (2) there was uncertainty regarding art. 98’s interpretation or application or (3) there is a question regarding art. 98’s consistency with international standards to be able to check out the scuba diving equipment. Art. 98 felt slighted as neither it, nor the French Criminal Procedure Code on the basis of which it was drafted saw what the PTC saw. Art. 98 will never find out the reasons for which the PTC leapt over it in full scuba gear. Sliding deeper into the pensive mood art. 98 began to wonder whether anyone noticed, cared or held it in any regard at all and finally whether there was any point to its existence at all. On this downward spiral of self-esteem, art. 98 wrecked its head about what type of miracle it would take for the DSS to notice that the right to counsel only kicked in when the suspect was already in detention and what holiday season miracle it would take for the DSS to notice that the right to counsel was activated only upon the detained person’s request and that the DSS being an administrative organ had no authority to make such request instead of the detained person or a suspect who has not been detained and possibly will never be detained (such is the nature of the investigative stage: it determines which dogs will hunt and which won’t). Sitting next to it and waiting for the PTC to resurface art. 143 got off to its own thinking. Art. 143 grabbed a pair of high definition binoculars and cranked them up to the finest grade looking for a charged person to whom the right to counsel at government expense would apply. The binoculars seemed to work fine and art. 143 could make out individual grains of sand on the other side of the harbor but not the charged person thinking the PTC must have taken him/her into the depths of the ocean with it. Art. 98 and art. 143 kept sitting on this side of the harbor and in plain view when the PTC hurtled past them at breakneck speed with its bottom of the sea treasure in tow. Art. 98 and art. 143 started to think “how the hell did it all get so wrong” and “it will take a miracle to un… this” as they saw the PTC beeline back to the ocean and come back out with pieces of the International Criminal Court (ICC) and International Criminal Ttribunal for the former Yugoslavia (ICTY) case law. Exhausted by the schlepping of bulky deep-sea finds, the PTC was lying on its back ashore resting when it noticed that there was no charged person. “Damn”, said the PTC, “what are we going to do with all this loot that we don’t need now?” The PTC pondered. “We will use it anyway! Like with food, it would be a shame to let this good stuff go to waste.” Miracles do happen and the PTC did get it right after hours of redundant diving, after a few tanks of oxygen (which isn’t cheap locally), and hours of superfluous pulling and dragging and stacking and restacking. In this season when Temple lights go on for 8 days on 1-day’s worth of oil and a fat man fits through a chimney anything is possible. It is even possible that the CPC will come to the DSS in a Christmas night dream and that the DSS will wake up the next morning and read the damned thing (it is a long document but, folks, you have been at it for over 5 years now; give us all a break). It is also possible that Santa Claus will bring copies of the CPC and the ECCC Law and Agreement and say “ho, ho, ho, there is more where these came from”. It is possible or at least we have to believe that it is or the spirit will wane and the hope will die.

I chose the anthropomorphic means of narration to make my point in this note as this means has a proven record of working well for a certain demographic and for it being the last means available to me to make this point: it is a Cambodian process, whether we like it or not, that statutorily uses Cambodian law as its legal basis with international law (just because it is easy to research does not mean you have to do it) playing backup – not second -- fiddle and only when the main fiddle is shattered into such small pieces that it can’t be glued back together or when the whole town is out of glue.

2011-12-24T03:20:00.002-06:00

Comparing the Incomparable?

Private First Class (PFC) Bradley Manning is alleged to have leaked thousands of pages of classified government documentation to which he had access in his professional capacity; an allegation that he does not deny. When President Obama blurted out in the middle of a fundraiser that he felt Manning had “broke[n] the law” ahead of any adjudication of Manning’s guilt, that resulted in an onslaught of scholarly and pundit opinion that Manning’s fair trial was compromised by the fact that Obama being Commander-in-Chief made a guilt pronouncement ahead of the court-marshal. With Manning’s court-marshal is entering its beginning stages, it is not clear whether his defense is going to mount a peremptory challenge against the proceedings on the basis of President Obama’s statement. While whether or not to mount this challenge is entirely up to Manning’s defense, it is clear that Obama’s comment was considered as inappropriate by many and raised the poignant question of whether in light of this comment there was any possibility left for Manning to receive a fair trial.

In Cambodia, the issue many ECCC observers have been focusing on for the last 2 years is the issue of allegations of the current political interference with the administration of justice at the ECCC. While this may be a valid issue, it can be argued that it has been rendered moot – at least to the larger extent – by the fact that the entire top leadership of Democratic Kampuchea was declared guilty in Hanoi way in advance of the 1978 invasion of Cambodia by the Vietnamese armed forces shingled as the Liberation Front "led" by a handful of Cambodian defectors. The majority of the observers of the ECCC process – for lack of knowledge of Cambodian history in most cases – glossed over the fact that the entire legitimacy of the Vietnamese-installed regime (People’s Republic of Kampuchea) rested on the leadership of Democratic Kampuchea being guilty. With it, PRK was the Savior of the Cambodian nation, the Patron of the Oppressed, the Liberator and the hope of the Cambodian nation for survival and possibly a brighter future. Without it, it was a gang of disgruntled defectors who came back to their homeland on the armor of Cambodia’s most reviled, vilified and demonized hereditary enemy, the Vietnamese (the Cambodian society’s sentiment towards the Vietnamese, contemporaneous or current, cannot and should not be underestimated). The existence of a factual basis for guilt was irrelevant as were the degrees of guilt different members of the Democratic Kampuchea leadership may have had. What was relevant was that the decision regarding their guilt had already been made in Hanoi and it simply had to be given a stamp of approval in Phnom Penh. This was done through the auspices of a 3-day process which worked from a script and which went without a hitch or any trappings of a fair trial. That process fortified the PRK’s legitimacy and its government went ahead with cementing its power full throttle. The anti-Democratic Kampuchea rhetoric did not abate and was heard from every PRK rostrum in this country for the next 20 years. The expansiveness of this campaign and its duration had no one left uninformed (being convinced is not the luxury successive Cambodian governments have extended their citizens) that Democratic Kampuchea was the enemy and that its leadership was guilty of every possible offense under the sun (statutory law was not something that was held in high regard during those years) including those who sit on the process as Cambodian judges now.

The current prime minister of Cambodia was one of the key politicians who designed and propagated these views which from the beginning of the PRK became the official position of its government and has remained such until now (PRK presently remains in power, albeit under a different name).

President Obama made a single statement regarding the guilt of a person who was yet to be tried and has been trying to retract this statement since. Prime Minister Hun Sen has made, perhaps, hundreds of thousands of statements regarding the guilt of the leadership of Democratic Kampuchea and he has not retracted a single one of them. Two generations of Cambodians were raised on these statements. President Obama’s comment on the guilt of an untried citizen caused an uproar in the United States and beyond; Prime Minister Hun Sen’s statements have barely made headlines in Cambodia.

It would be easy to dismiss this comparison by pointing out that there is no point in comparing fair trial in the US with that in Cambodia. It would be indeed. If the United Nations were not involved in the ECCC, that is. If the UN were not involved, no one would expect the Cambodian judiciary to grant fair trial guarantees to the Democratic Kampuchea leadership. It is also true that there would be no process as no one would give the unsupervised Cambodian government money to conduct its own trials of the Democratic Kampuchea leadership. If there were no process, the persons presently standing accused would be free. As it is, they are not now and the only reason they are not is because this process exists and the only reason this process exists is because the donor-states agreed to fund a process created and guaranteed by the United Nations, not a brainchild of the Cambodian judiciary whose integrity has been in doubt from the outset of this process (Group of Experts Report of 1999). The Manning-ECCC comparison is instructive because the US fair trial rules are far more similar to those adopted at the international level through the UN frameworks (and which the UN is supposed to promote throughout this process) than those practiced in Cambodia. The UN being the de facto guarantor of these rules has the responsibility to enforce them and the observers of the process have every right to be as riled up as the observers of the Manning process and much, much more due to the fact that the idea of guilt of the persons in the dock has been instilled in 2 living generations of Cambodians which makes fair trials in this process almost as impossible as it was back in August, 1979, albeit for markedly different reasons.

Khmer Rouge Tribunal Splits War Crimes Trial

2011-09-25T22:27:00.000-05:00

Voice of America

A United Nations-backed tribunal in Cambodia says four ex-Khmer Rouge leaders charged with genocide in the deaths of up to 2 million people will first face prosecution individually for crimes against humanity, in a move to speed up proceedings.

The tribunal move, announced Thursday, separates the trials of the four senior surviving members of the ultra-Maoist Khmer Rouge, which ruled the Southeast Asian nation from 1975 to 1979. The defendants, all of whom deny the charges, include nominal Khmer Rouge head of state Khieu Samphan and Nuon Chea, described as the regime's chief ideologue. Khmer Rouge Foreign Minister Ieng Sary and his wife Thirith also face the same charges.

Khmer Rouge leader Pol Pot died in 1998.

A tribunal statement Thursday said the division aims to safeguard the interests of victims, as the long-awaited prosecutions in a single trial could take years, and the elderly defendants – all older than 78 – are likely to die before verdicts are reached. The tribunal statement estimated it could take as long as 10 years to reach a verdict in a single trial.

No timetable was announced for the start of the separate trials.

In a landmark first trial last year, the tribunal sentenced former Khmer Rouge lieutenant Kaing Guek Eav, better known as Duch, to 30 years in prison for his role as chief of the notorious Tuol Sleng torture prison during the regime's rule. The tribunal later reduced the sentence to 19 years, granting Duch credit for time already served while awaiting trial. Prosecutors have appealed the reduced sentence and are awaiting a tribunal ruling.

Tribunal Opens Contempt Proceedings Against VOA Khmer

2011-09-25T22:22:00.000-05:00

Men Kimseng, VOA Khmer | Washington, DC

Voice of America

Investigating judges at the UN-backed Khmer Rouge tribunal have begun contempt of court proceedings against VOA Khmer, which they said in a statement Wednesday had interfered with the court’s work by making public the contents of confidential court documents.

In August, VOA Khmer ran a series of interviews with three suspects named by court prosecutors in confidential submissions that had earlier been made public by international media outlets, including the US-based Christian Science Monitor and a New Zealand website called Scoop. In the interviews, three suspects, Ta An, Im Chaem and Meas Muth denied responsibility for atrocity crimes.

The prosecution submissions named a total five suspects in two cases, 003 and 004, which Prime Minister Hun Sen and other government officials oppose, saying further indictments at the court could hurt national stability.

The investigating judges, Siegfried Blunk and You Bunleng, have been under increased scrutiny since April, when they announced the conclusion of their work in Case 003, despite failing to interview the two suspects in the case or to visit key crime sites.

International prosecutor Andrew Cayley has since appealed to have the judges continue the investigation. That appeal is under review, and the investigating judges say they are continuing work on Case 004.

In their statement Wednesday, the judges said VOA Khmer had “quoted verbatim from a confidential document of the [tribunal] and even showed that document on a video,” and that they had “instituted proceedings for Interference with the Administration of Justice (Contempt of Court)” under court rules.

“Anyone intending further disclosure of confidential court documents is hereby warned that his case could be transferred to the National Prosecutor,” they said.

VOA Khmer chief Chris Decherd said Wednesday the service supports the work of the court.

“The role of VOA Khmer is to serve the 14 million citizens of Cambodia by reporting, producing and broadcasting news reports about the world, the US, Asia and Cambodia that are important and relevant to Cambodian citizens, who deserve and are well-served by objective and quality news reporting about issues and topics that impact and affect their daily lives,” Decherd said in a statement.

Wednesday’s statement opened broader questions over the court’s work and the role of journalists who cover it. The hybrid court was established to try former leaders of the Khmer Rouge, under which more than 1.7 million people died, and to bring victims of the regime into the judicial process for the sake of national reconciliation.

“Through my observations so far, I see that coverage of the Khmer Rouge tribunal is still limited,” said Mean Chhean Nariddh, director of the Cambodian Institute for Media. “This is because the level of knowledge among local journalists is still low. Therefore, if the court has too much restriction, it will lead to journalists shunning more coverage of the court. Their knowledge of international criminal courts like the [tribunal] is low. So they are afraid that they would end up in trouble. This is a loss for the tribunal, the international community and the Cambodian people.”
Mean Chhean Nariddh said that legal action taken against journalists could set a bad example for the domestic courts to follow.

Our Virak, director of the Cambodian Center for Human Rights, said the judges’ position was aimed at both journalists and its own staff.

“Cases 003 and 004 have attracted a lot of interest from the public, and I think that tens of thousands, up to millions, of victims have the right to know about the court’s processes,” he said. “We understand that the court seems to be failing. Therefore it seems there is a tendency to push for a proper investigation to move cases 003 and 004 forward.”

“We see that investigating judges seem to have completely failed,” he said. “That’s why there is the intention of some officials to bring this information to the public. In general, this kind of approach is pitiful, but it is necessary for a court that is failing and dragging on.”

Khmer Rouge Tribunal Judge Criticizes Media Coverage

2011-09-25T22:16:00.000-05:00

Daniel Schearf, VOA | Bangkok

Voice of America

A judge at the United Nations-backed Khmer Rouge tribunal in Cambodia has criticized media coverage of the ongoing war crimes trials after a series of reports that contained leaked confidential information.

A Supreme Court Chamber Judge for the Khmer Rouge tribunal in Cambodia had harsh words late Thursday for the media’s coverage of its proceedings.

The tribunal last year sentenced one former Khmer Rouge leader for crimes committed in the late 1970s and is in the process of trying four most senior leaders in a second case.

But there is much debate over whether further leaders will stand trial in a potential third and fourth case, details of which were earlier this year leaked to the media.

Judge Agnieszka Klonowiecka-Milart lashed out at recent media reporting on potential new defendants whose names were revealed in the leaked court documents.

Speaking at the Foreign Correspondents Club of Thailand in Bangkok, she said what should be a confidential investigation is being hijacked by the media.

“Arguments are being held in the fora of the media as opposed to the courtroom. And I think…oh, and that the confidential documents are being leaked, whether under the sanction of contempt or not, let’s leave it aside, but it’s ignoble," the judge said. "Even if it was already in the public domain it was wrong that it so happened. And, it’s not a reason to put it again in the public domain.”

The tribunal’s Co-Investigating Judges this week instituted contempt proceedings against the Voice of America’s Khmer service for quoting from one leaked document and broadcasting its image.

The court document was leaked earlier this year and its contents had already been revealed in other media reports, but the court only named VOA in its contempt proceedings.

VOA issued a statement of concern about the potential “chilling effect” the threat could have on media coverage of the tribunal.

Anne Heindel is a legal advisor for the Documentation Center of Cambodia, an organization that collects evidence of crimes committed during the Khmer Rouge era.

She also spoke at the FCCT and said the leaks are driven by the tribunal’s practice of keeping information confidential throughout the investigations and trials, frustrating public awareness and adding to criticism of the court.

“Because people feel that cases three and four are not being adequately investigated, that there’s… the national government has said they don’t want these cases, the internationals really don’t want to fund the cases, there’s a feeling that they aren’t going to happen for political reasons and not so much for legal reasons," Heindel said. "This has led to a lot of information coming out through irregular channels and not through the court.”

Since the tribunal’s founding, critics have accused it of being corrupt, too expensive and slow, as well as being vulnerable to political interference.

Cambodia’s Prime Minister Hun Sen, himself a former Khmer Rouge, has publicly stated there should be no further trials because they could divide the country and lead to civil war.

Led by Pol Pot, the ultra-communist Khmer Rouge ruled Cambodia from 1975 to 1979. In its quest to form a rural utopia, as many as two million Cambodians, nearly a quarter of the population, were executed, starved, and worked to death.

The Trial Chamber Breaks Up Case 002

2011-09-24T01:11:00.003-05:00

The Trial Chamber (TC) has recently made a decision to break up the trial phase of Case 002 into a number of substantive parts. The TC found a legal basis for doing this in its interpretation of the newly minted Rule 89ter of the Internal Rules (IRs). It might not be unreasonable to argue that the court adopted this rule with a particular purpose in mind and at a very advanced stage of its tenure which may or may not raise an assortment of issues normally associated with the principle of legal certainty as justification for this rule is nowhere to be found in the Cambodian criminal procedure.

Perhaps, the most curious element of this decision is that it does not stop at merely breaking up the trial into separate thematic hearings but goes as far as to break up the trial phase of Case 002 into separate trials. This, among many other things, means that there will be separate verdicts at the end of each trial. This, in turn, means that the accused may or may not go to the next trial as convicted felons (a verdict is only a verdict if it contains a determination of guilt) with all the implications which this carries. This would be all fun and games and would not go far beyond the “huh, interesting”, were it not for the presumption of innocence which kind of cramps the TC’s style in this case (and was articulated as a principle of international and national law to do just that). Besides, this will prevent the TC from giving weight to the totality of exculpatory and inculpatory evidence when deliberating the question of guilt of these accused with numerous implications which can be fairly easily derived from this in advance of the trial.

Perhaps, the posited justification of “safeguarding the fundamental interest of victims in achieving meaningful and timely justice” for all this inconvenience is not as strong an argument as the Chamber might believe it to be with this court having spent a year to create its internal rules which (there goes "timely"), among other deviations from the Cambodian procedure, foreclosed the opportunity to claim personal financial reparations (there goes "meaningful") otherwise open to victims in the Cambodian criminal process, as well as, of course, the passage of a period of 30 years which dwarfs any additional time which can be taken up by this court (and there goes "timely" again).

Were the above not of concern, this would be an interesting and somewhat novel way to proceed. But, as it is often the case, the fair trial principles might get in the way of judicial experimentation.

Is This You, (Florence) Hartman(n)? Is this Me?

2011-09-08T20:52:00.001-05:00

A news agency makes public a court document which has not been classified as ‘public’ by the court itself. The Co-Investigating Judges (CIJs) of the court respond by opening contempt proceedings against the media agency and issuing a stiff warning to the rest. The CIJs cite R. 35 of its Internal Rules as the legal basis for the action. R.35 does permit the ECCC to “sanction or refer to the appropriate authorities any person who knowing or willfully interferes with the administration of justice” and within that who “discloses confidential information in violation of an order of the CIJs or the Chambers”.

On the face of it, the facts of the alleged infraction fit the type of conduct that R. 35 sought to prohibit. On a closer examination, questions as to whether R. 35 controls the issue arise. Here’s why. It is hard to imagine that a news agency – even one of Voice of America (VoA)’s stature – could – or would -- directly breach the court’s security arrangements. In other words, it is hard to imagine that VoA is in possession of a court staff member’s access to the court’s database or that it has otherwise physical access to the classified documents directly and without an intermediary. I have no reason to believe that the CIJs are suggesting this to be the case either. What I believe the CIJs are suggesting is that someone with access to the court’s internal database – or just the document in question – leaked it out to the VoA. Perhaps, an officer of the court, current or former. 3 questions therefore arise: (1) how is the interest of free press reconciled with the State interest privilege to classify information? (2) what is the meaning of “any person who discloses” of R. 35? and (3) what is the media agency’s liability in this case?

Regarding (1), it is a well-known function of the media in a democratic society to keep the public informed. This function of the media is linked to a number of constitutional rights of the highest rung. These rights protect the media from undue interference of the State as there is an understanding that the media will need a high level of constitutional protection if it is to inform the public of the matters of public administration (which the government oftentimes does not want the public to know of and which it is understood the government would keep under wraps if it were not under the constant glare of the media). However, it is understood that there are certain matters regarding which the State reserves the right not to disclose information (e.g. national security). In democratic societies, the law does not permit the State to determine which matters must be classified on the basis of capricious standards; on the contrary, there are legal tests which determine the types of information which may be classified. It is further understood that this information has to be of the highest level of privilege and importance to the State. It is hard to imagine how the document disclosed by the VoA meets this high level.

Regarding (2), it is reasonably clear that the CIJs do not suggest that the VoA has independent, direct and unhampered access to the court’s internal documentation. Therefore and as posited above, the CIJs are suggesting that the media merely published a document obtained by someone else who is not an employee of the VoA. If the CIJs consider the act of obtaining and transferring the document by the person(s) who committed the act illegal (for which they have a sufficient legal basis), the ire of the court’s contempt must be directed at the person(s) whom they suspect of having illegally obtained and transferred the document, not the media agency which published it. Once taken out of the secured space of the court’s internal communication the document would have been shared one way or the other, whether it would have been done by establishing an anonymous blog or by handing it off to a large media outlet (CIJs can argue that considering the size of the blogosphere it is less likely that as many persons would have been shared this document with as it may be the case when the sharing is done through a media company with the VoA’s wingspan). Essentially, the CIJs might be on the right trail but they are surely barking up the wrong tree – the offending officer of the court should have been the target of the CIJs’ ire, not the media outlet which provided a forum for the document’s publication.

Regarding (3), it must be noted that it is the most difficult of the 3. The media’s freedom of expression is not limitless and does not shield it from all types of information it might make public. In many countries the publication of such things as hate speech, defamatory (which, unlike it is often the case in Cambodia, have the ‘false’ element in them as opposed to be merely telling the “inconvenient truth”) statements, information which the media company has reason to believe to be untrue, etc. VoA appears to have had no reason to believe that the publication of the document in question was barred by any of these limitations (for one, it is clear that the document published is authentic which is clear from the CIJs’ response). Except for one: the interference with the administration of justice. This matter is not without precedent on the plane of international criminal courts. A couple of years ago the International Criminal Court for the former Yugoslavia (ICTY) brought contempt proceedings against its own employee who the indictment stated disclosed information excluded from the public domain through a court order. The facts of this disclosure differ from those of the one at hand in the following ways: (1) the documents as such were not disclosed but the fact of their existence was; (2) the contempt proceedings were brought against the offending court officer, not the media outlets she used to disclose the privileged information; and (3) the value of the information disclosed. Let’s look at these one at a time. (1) The ICTY officer did not leak court-protected documents to the media but made statements disclosing the existence of these documents which considering the nature of the documents was both revelatory and inflammatory. (2) No proceedings were brought by the ICTY against either of the media outlets which the offending officer used to make the disclosure. (3) The documents the existence of which was disclosed were, perhaps, of the highest rung of importance in the whole of the Yugoslav conflict of the 1990s. If we presume that the most contentious matter of that conflict is the Srebrenica Massacre and if we presume that this is the single most embarrassing (whether they admit it or not) to the Serbs (be they ethnic Serbs throughout the former Yugoslavia or the State of Serbia) event of that entire conflict and one of the main sources of tension which presently exists between the State of Serbia and the State of Bosnia and Herzegovina (whose affected Muslim population continue reeling from the event), we can presume that any document regarding the Srebrenica Massacre is sensitive, to say the least. This existing sensitivity was made more acute at the time of the disclosure as the case of genocide filed by Bosnia and Herzegovina against Serbia (not the Serb enclave known as Republika Srpska but the sovereign state of Serbia) was at the time under review at the International Court of Justice (ICJ) with potential historical, diplomatic and financial implications for Serbia. Hence, when the special panel established by the ICTY found that “the disclosure could harm Serbia’s vital national interests”, a reasonable observer versed in the particulars of the Yugoslav conflict and post-conflict developments could see how. In this case, the CIJs do not tell us what it is that is so special about this particular document besides the fact of its mere disclosure (particularly considering that this is not a first in this court’s tenure as while the names of the suspects in Cases 003 and 004 were never officially disclosed, we all know who they are; how? the media) besides the fact of disclosure itself. It would be most instructive to hear the CIJs’ arguments regarding how this document is of “vital national interest” to Cambodia considering the fact that there is an international precedent which controls the issue and in the environment of this court’s heavy reliance on the precedent of the other international and hybrid criminal tribunals which should make it relevant to -- if not dispositive of -- the matter at hand.

Statement from the Co-Investigating Judges Regarding Contempt of Court Proceedings Against Voice of America

2011-09-08T18:33:00.000-05:00

After Voice of America Khmer on 10 August 2011 quoted verbatim from a confidential document of the ECCC and even showed that document on a video, the Co-Investigating Judges have instituted proceedings for Interference with the Administration of Justice (Contempt of Court) pursuant to ECCC Internal Rule 35.

Anyone intending further disclosure of confidential court documents is hereby warned that his case could be transferred to the National Prosecutor pursuant to Rule 35 (2) (c).

31 August 2011

Cambodia's Kangaroo Court

2011-08-28T18:55:00.000-05:00

Why isn't the U.N. tribunal to prosecute genocidal Khmer Rouge war criminals going after more bad guys?

By Mike Eckel

http://www.foreignpolicy.com/articles/2011/07/20/cambodias_kangaroo_court?print=yes&hidecomments=yes&page=full

It was a damning indictment by any estimation: a 100-plus-page report published 10 years ago by a Khmer-speaking, British-based scholar of Cambodian history with the help of American University. The scholar, Stephen Heder, spent years compiling evidence of war crimes by seven top officials of the Khmer Rouge, the ultra-Marxist regime whose brutal efforts to create an agricultural utopia in Cambodia in the late 1970s wiped out up to a quarter of the population.

On June 27, Heder saw some of his efforts come to fruition: Three of the five officials still living went on trial in what has been called the most significant war crimes tribunal since the Nazi trials at Nuremberg.

What is more significant, however, is what Heder will likely never see: the prosecution of the two other remaining officials despite overwhelming evidence, years of official investigation, and hundreds of millions of dollars spent by the United Nations, the United States, and other donor countries. The prosecution is mired in a dispute that has riven the U.N.-backed tribunal, with infighting between prosecutors and judges, dubious legal rulings, and inaction from its funders. The struggle is part of a larger tug of war pitting Cambodia's authoritarian prime minister against the international community. And from Heder's perspective, it's an outrage that in the end prompted his resignation from the tribunal, citing the "toxic atmosphere of mutual mistrust" at the "professionally dysfunctional office" of the investigating judges.

The dispute is threatening the legacy of the eight-year-old court, which was set up to help bring resolution to one of the grimmest chapters of the 20th century, when an estimated 1.7 million Cambodians were murdered, starved, worked to death, or died of disease in the "Killing Fields" of the Khmer Rouge's 1975-1979 rule.

The tribunal has a long and not-so-glorious history. In the late 1990s, the government, headed by Prime Minister Hun Sen, approached the United Nations to create a court to try Khmer Rouge officials. But they didn't want a fully international court, like what was set up for the former Yugoslavia. Despite vocal misgivings from U.N. negotiators, the final agreement in 2003 was for a hybrid, with Cambodian and international judges and prosecutors working with Cambodian and international laws, under a French-style system.

Those misgivings proved well founded. "I did not want … the U.N. emblem to be given to an entity that did not, shall we say, represent the highest international standards," Hans Corell, the chief U.N. negotiator at the time, told me in an interview. "But of course what we predicted seems to have developed into the problem that we were concerned would occur."

With the help of Heder's research, prosecutors compiled substantial evidence against potential suspects. The trial that opened on June 27 (known as Case 002 in court parlance) featured four senior officials, three of whom were the focus of Heder's report: Ieng Sary, Khieu Samphan, and Nuon Chea -- who was second only to the infamous Pol Pot, who died in 1998.

Prosecution investigators also targeted two top military commanders, according to confidential court documents, in what is known as Case 003. The documents allege that Sou Met and Meas (or Meah) Mut -- both of whom served as top officials in the Cambodian military until recently -- took part in purges that resulted in tens of thousands of deaths.

The Cambodian government, however, has openly stonewalled on new prosecutions beyond the current trial. Last October, Hun Sen bluntly told visiting U.N. Secretary-General Ban Ki-moon that new cases would "not be allowed." Hun Sen has warned of the potential for civil war, though his opposition likely stems from the fact that many Khmer Rouge officials, like himself, are now in government and fear that investigators could dredge up new evidence of war crimes.

Many critics now point the finger not only at the Cambodian government, but also the United Nations for not doing more to stand up to Hun Sen's demands. "The Cambodian government has been forthright all along that there would be no new cases," said Anne Heindel, legal advisor to the Documentation Center of Cambodia, which researches the Khmer Rouge. "It's the failure of the United Nations to act that's been surprising."

Scrutiny of late has focused on the two investigating judges who, under the French-style rules, are primarily responsible for pretrial investigations. One of them is German investigating judge Siegfried Blunk, who many hoped would pursue the new cases despite the objections of his Cambodian counterpart.

That hasn't happened. Instead, on April 29 the judges closed the investigation into Case 003, despite having taken no basic steps, such as questioning the suspects, identifying crime sites, or notifying victims' lawyers, to advance the case. (They gave no explanation as to why none of these steps had been taken; the news release that accompanied the announcement of Case 003's closure was one sentence long and, moreover, was released at 6 p.m. on a Friday after the close of business, just to further add to the suspicion.)

That set off a fight with British prosecutor Andrew Cayley, who appealed the closure and publicly identified specific crime sites, prompting a harsh rebuke from the investigating judges' office and an order to retract his statement. Cayley called the rebuke "abusive," "unreasonable," "capricious," and "unprecedented."

David Scheffer, a Northwestern University law professor who helped set up the court when he was U.S. war crimes ambassador, called on the judges to follow up on Cayley's appeal and "stop issuing foolish orders that only reveal their own insecurity over past performance." "The integrity of the [tribunal] hangs in the balance," he wrote in a recent blog post. Other observers have been even more critical. The Open Society Justice Initiative, a watchdog organization funded by billionaire George Soros, said in a report released June 14: "[I]t is abundantly clear that if the court continues to give the appearance of having succumbed to political interference in Case 003, the legacy of the [court] will be severely undermined."

Tensions reached a boiling point in May when several tribunal employees sent an angry letter to Ban complaining about Blunk, according to two officials who have seen the letter but asked to remain anonymous in order to discuss the court's internal matters. Blunk also sent a letter to Ban, though its contents are unclear. At least five employees resigned in protest over Blunk's actions. Heder has refused to speak publicly about his resignation, but in a letter to Blunk on May 5 (a copy of which was given to me), he wrote:

In view of the judges' decision to close the investigation into Case File 003 effectively without investigating it, which I, like others, believe was unreasonable; in view of the UN staff's evidently growing lack of confidence in your leadership, which I share; and in view of the toxic atmosphere of mutual mistrust generated by your management of what is now a professionally dysfunctional office, I have concluded that no good use can or will be made of my consultancy services.

Cambodian rights activist Ou Virak also complained that Blunk's conduct was "a matter of utmost concern" and suggested that the United Nations had acquiesced to the Cambodian government.

Blunk has repeatedly declined to answer questions from the media, but issued a statement through a court spokesman: "The co-investigating judges have worked independently from outside interference, and are resolved to defend their independence against all interference wherever it may come from."

The feud, as well as concerns about public perception, prompted officials from the court's main onors, which include the United States, Australia, and others, to intervene directly with Blunk and Cayley multiple times -- by phone and in person.

One Phnom Penh-based diplomat described Blunk after meeting him as "a person who takes his job very seriously," but said there didn't appear to be indications of unethical or illegal behavior. The diplomat was blunter about the United Nations. "The U.N. has to make things work; it has to get its house in order," said the diplomat, who was not authorized to speak to the media. "Where is the institution of the court" in this feud?

The U.S. war crimes ambassador, Stephen Rapp, who also spoke to Blunk directly, told me that Washington had warned the Cambodian government not to interfere. But he also suggested that money was as much a factor as jurisdiction in deciding which cases to pursue. "It's a question of the mandate, but it's also a question of resources as well," he said in an interview. "We expect people … to be making decisions that you can't pursue every case. We want them to make them on a proper basis, with an understanding that resources are limited and they need to prioritize."

The United Nations, meanwhile, insists its actions have been proper. In a statement released the same day as the Justice Initiative report, Ban's chief spokesman, Martin Nesirky, denied speculation that the United Nations was pushing judges to close Case 003.

"The judges and prosecutors must be allowed to function free from external interference by the Royal Government of Cambodia, the United Nations, donor States, and civil society," he stated. "It follows that the United Nations categorically rejects media speculation that we have instructed the [judges] to dismiss Case 003. Observers say the damage the court has suffered as a result of the feud, the lack of transparency, and the confusing legal orders could be mitigated by how the Case 002 trial plays out -- and whether Cambodian society embraces the court's decisions in the end.

But nobody's expectations are high. "I think people aren't just looking to the court for reconciliation and truth, or the end of impunity.… They're looking at it for the legacy it leaves behind for the Cambodia courts," Cayley's deputy, William Smith, said in an interview. "And if the court's legacy is to mean anything, it should hold up some basic rights."

Lawyers Want 003 Case File

2011-08-12T00:25:00.001-05:00

Wednesday, 25 May 2011
James O'Toole
The Phnom Penh Post

Anne Heindel, a legal adviser at the Documentation Centre of Cambodia, said she believed all 318 people who have applied to be civil parties in Case 003 will ultimately be rejected, as the judges have no intention of sending the case to trial.

Lawyers for former Olympic rower Rob Hamill have called for access to the case file in the Khmer Rouge tribunal’s third case as they prepare to appeal the controversial rejection of his civil party application.

In a request dated May 12 and made public on the court’s website yesterday, the New Zealander’s lawyers argued that their continued lack of access to the case file would prevent them from effectively defending Hamill’s right to participate.

“This request is made in the interests of justice and on grounds of procedural fairness,” the lawyers wrote, noting that in Case 002, in which Hamill has already been accepted as a civil party, lawyers received access to the case file ahead of decisions on their clients’ admissibility.

“Civil Party applicants cannot form meaningful legal and/or factual grounds of appeal without knowledge of basic matters pertaining to the case file,” they said.

Hamill’s brother Kerry was captured by the Khmer Rouge in 1978 while sailing with friends in the Gulf of Thailand before being taken to S-21 prison in Phnom Penh and executed. Rob Hamill was present to testify about the ordeal in 2009 during the tribunal’s first trial, that of former S-21 prison chief Kaing Guek Eav, better known as Duch.

The suspects in Case 003 remain officially confidential, though court documents reveal them as former KR navy commander Meas Muth and air force commander Sou Met.

Hamill says Meas Muth in particular played a “pivotal role” in his brother’s capture, and in a statement earlier this month, tribunal co-prosecutor Andrew Cayley confirmed that the “capture of foreign nationals off the coast of Cambodia and their unlawful imprisonment” figures in the Case 003 investigation. In view of this information, Hamill called the rejection of his application earlier this month by the court’s co-investigating judges “outrageous and unfounded”.

“The co-investigating judges are clearly doing everything in their power to limit public information and public knowledge of what’s going on,” she said.

Ex-International Co-Prosecutor on ECCC

2011-07-26T11:20:00.000-05:00

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.

Prosecution Wants JCE III Back: There Are Many Ways to Skin a Cat But the Trial Chamber Has Only One Chance to Do It

2011-07-11T01:35:00.001-05:00

The judicial doctrine of Joint Criminal Enterprise (JCE) keeps making waves at the Court. After having lost JCE III in a Pre-Trial Chamber (PTC)’s decision, the prosecution decided to battle on and recently put a request to overrule the PTC’s decision to exclude JCE III before the Trial Chamber (TC). Can the TC overrule PTC’s decisions? The consensus appears to be yes, when the matter comes under the TC’s jurisdiction. The prosecution, thus, patiently waited for the TC to be seized of Case 002. It submitted a request – not an appeal – to this effect.

There is not much in this request we have not seen before. There is a heavy reliance on the “seminal” Tadic, there is the prosecution’s interpretation of “committed” in the ECCC Law dovetailed with the prosecution’s wild story of what the ECCC Law drafters would have done had they meant to exclude JCE III, and there is the prosecution’s interpretation of the post WW2 trials (in which the prosecution must be commended for stopping short of saying that JCE III was an underpinning doctrine throughout, rather than something similar to JCE III appearing in a smattering of cases). There are also things which stray far from the prosecutorial orthodoxy, one of which is citing statements of the prosecution in other cases as authority. It is new, fresh and exciting but, alas, not persuasive for obvious reasons. After this, there is a nosedive into “the general principles of law” which are not substantiated either as ‘general’ or as ‘principles’ by the means of the prosecution’s argument.

What the prosecution cannot overcome are these: (1) Cambodian law is the foundation of the ECCC; Cambodian law does not contain JCE; (2) Cambodia is not a common law jurisdiction and the concept of ‘judicial doctrine’ is alien to it as a result (I am sure the Cambodian judges on the Court will attest to this assertion); (3) While it might be reasonable – but not to the same degree as it is in the case of the former British colonies with decades of post-independence jurisprudence relying on British case law – to take a look – a peak, rather – at the French jurisdictions but this will be unprofitable for the prosecution (Tadic tells us about the French cases that worked for its argument but does not tell us about the gamut of those which did not); (4) To get access to the case law of the other ICTs, the prosecution needs to show that one of the 3 prongs of the resort to “the standards established at the international level” can be satisfied: (i) either Cambodian law does not address the matter (which it does; ‘commit’ is addressed sufficiently, by any standards, in the current criminal law), or (ii) it addresses it in violation of the international standards (which it does not as there is at least as much opposition to JCE III as there is support for it and, by no means, is JCE III ‘settled law’); or (iii) there is uncertainty in Cambodian law as to the interpretation or application of the rule (for which there is no evidence to the best of my knowledge as I am not aware of any Cambodian cases where the judges disagreed about the meaning of ‘commit’ but the Cambodian judges on the Court are in a better position to advise); (5) Even if the TC finds that the prosecution has successfully (although I do not see how that can be possible without the prosecution even trying) argued the above and therefore has access to the case law of the other ICTs, Tadic does not control JCE III. TC will have to face the simple fact that … well, nothing really does as the present case law is not much more than a motley crew of divergent opinions when it comes to JCE III. (6) For the TC to grant the prosecution’s request they will have to overrule the PTC, a decision into which the PTC invested so greatly and went to the great trouble of canvassing the field before it said no to Tadic. For the TC to overrule its fraternal PTC and maintain face before the vigilant and sizable community of observers and the PTC colleagues, the TC will have to put at least as much time into researching the matter as the PTC did to possibly find out that the PTC was right to begin with. This is the time the TC does not have.

The prosecution’s appeal is of religious, rather than legal nature. It wants the TC to accept Tadic and that Antonio Cassesse cannot be wrong as an article of faith. The TC’s faith would have to be boundless to accept Tadic in the face of the PTC’s decision to the contrary and Tadic and JCE III’s extreme and well-known volatility. The Chamber’s excellence at fine-slicing will be tested here.

Jurisprudence on JCE – Revisiting a Never-Ending Story

2011-07-10T22:52:00.001-05:00

By Wolfgang Schomburg

Introduction

On 20 May 2010 the intense debate on the applicability of the doctrine of Joint Criminal Enterprise (JCE)1,2) before the ECCC3 found an interim4 result in a decision rendered by the Pre-Trial Chamber.5 This decision is admirable in its thorough analysis of some post WW II decisions. The result is more than welcome after years of dangerous confusion. In its systematic approach regretfully the decision takes it as given from the outset that in International Criminal Law there is such a label called JCE.
In the recent past, hardly another topic in international criminal law has divided the minds of academics and practitioners alike as heavily as this dogmatic figure created for the purposes of imposing individual criminal responsibility in situations of mass atrocities and collective criminal activity.
This holds true especially in regard to the third category of the doctrine, the so-called extended JCE (JCE III). It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC, even if only under a (allegedly) tightened mens rea requirement. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes as it considers these categories of the doctrine as undoubtedly recognized forms of responsibility in customary international law at the time relevant to the case before them.6 In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels. The Office of the Investigative Judges had declared JCE only inapplicable in regard to national Cambodian crimes, a finding upheld by the Pre-Trial Chamber.7

In the view of the ECCC Pre-Trial Chamber JCE III was not recognized as a form of responsibility applicable to violations of international humanitarian law at the time relevant to the case before it and thus not to be applied by the court in regard to international crimes.8 It bases this finding on a critical scrutiny of the authorities relied upon by ICTY9 in Tadić10, the mother judgement on JCE in international criminal law. Firstly, the Pre-Trial Chamber finds no support for the existence of JCE III as customary international law in the international instruments referred to in Tadić.11 As to the international case law, the Pre-Trial Chamber refuses to rely upon cases such as Borkum Island and Essen Lynching as these lacked reasoned judgements.12 The national case law relied upon in Tadić in turn is, in the view of the Pre-Trial Chamber, not to be considered as representing proper precedents for the purpose of determining the status of customary law as these do not amount to international case law.13
Moreover, the Pre-Trial Chamber, while turning to consider the possible existence of general principals of law in support of JCE III, takes the view that it did not need to decide whether a number of national systems representative of the world’s major legal systems recognised a standard of mens rea analogous to the one in JCE III as it was not satisfied that such liability was foreseeable to the charged persons in 1975-1979.14 In such circumstances, the Pre-Trial Chamber concludes, “the principle of legality requires the ECCC to refrain from relying on the extended form of JCE in its proceedings.”15
The purpose of today’s remarks is to demonstrate that the doctrine of JCE in its entirety is an unnecessary and even dangerous attempt to describe a mode of liability not foreseen in the Statutes of today’s international tribunals, in particular not in the Statutes of ICTY and ICTR16, however invented and applied by the Appeal Chamber of both Tribunals. This artefact still has all the potential of violating in part the fundamental right not to be punished without law (nullum crimen, nulla poena, sine lege). This potential risk unfortunately has realized itself for the first time ever before the SC/SL17 as will be shown below.
First the definition as developed before ICTY, and later ICTR, shall be described. This will be done solely by summarizing the jurisprudence of both ICTY and ICTR, including inherent criticism and dissenting opinions, thus the only authentic account of the roots of this doctrine.
Why was it necessary at all to again impose a new doctrine (JCE), absolutely unknown in the law of both areas of responsibility (the “Territory of Former Yugoslavia” and Rwanda)? The need to depart from the latter had arisen only when the domestic law was able or even intended to shelter the most senior responsible ones from criminal responsibility. Admittedly ICTY never had a real general part of substantive criminal law as would have been necessary and excellently realized for the first time on an international level in the Rome Statute for the permanent ICC.
Tadić explicitly started by showing, however without saying and drawing the necessary consequences, that indeed there was no customary international law supporting the proposition that there was customary international law beyond reasonable doubt on modes of liability in the past WW II jurisprudence. The cited (and limited) jurisprudence was too
divergent to hold that all three forms of JCE amounted to customary international law.
Universal State practice was never under comparative scrutiny. In particular state practice of Former Yugoslavia was ignored. Indeed legally from the perspective of international criminal law, a law sui generis, and the margin of discretion (not free choice) in mind, it might be regarded unnecessary to make reference to the national law applicable FY or Rwanda.
No doubt Art. 15 ICCPR (Nullum crimen, nulla poena sine lege praevia) provides and allows for the concurrent applicability of three layers of law: National Law, International Law and acts and omissions that had been criminal at the time of commission according to the general principles of law recognized by the community of (civilised18) nations. Is it, however, not of assistance for a peace keeping mission based on Chapter VII of the UN-Charta to unnecessarily depart from the law applicable on the national level, thus giving perpetrators only the pretext to claim to be punished based on unforeseeable law. This is in particular so when national and international law has to be applied with different consequences on the modes of liability as the experience before the ECCC now shows.19 One should never underestimate the need for broad acceptance of criminal law. Justice must not only be done but also seen to be done by the human beings (victims, relatives, witnesses, alleged perpetrators, the individual population of a situation in general) as the addressees of all judicial decisions.
Back to the point of departure, i.e. Tadić. For me it is abundantly clear that the general part of the applicable domestic law was even better placed than JCE to accomplish the necessary: a) in general: to bring to justice without legal gaps and effectively the most serious actors in campaigns of genocide and/or ethnical cleansing; b) to hold responsible the perpetrators behind the perpetrators, the allegedly untouchables; c) not to run the risk that those perpetrators with clean hands escape as mere aiders and abettors (a trivialization realized in later judgments of ICTY/ICTR); d) not to confuse the membership in a JCE with a membership in a criminal group, the latter forming a separate broader (and thus least grave) mode of participation20, not foreseen in the Statutes of the UN ad hoc-tribunals, however in the Rome Statute for the permanent ICC (Art. 25(3)(d):an additional argumentum e contrario); e) not to run the risk that, exactly opposed to the noble primary goal of International Criminal Law (cf.supra a), members of groups, or ethnicities would be punished solely based on a common purpose or intent, i.e. nearly every likeminded person.
It is not only to emphasize, as ECCC in its decision did, to clarify the role and scope of customary international law in this context. I want to show that in particular the third category of JCE has no basis in both the Statutes of ICTY and ICTR.21 The principle of nullum crimen, nulla poena, sine lege stricta forbids the application of the JCE doctrine at least in its third category against the clear wording of both Statutes.
From the outset it has to be pointed out that the first and the second category of JCE will not be discussed in greater detail as these categories by and large overlap with traditional definitions of the term “committing”, thus a matter of unnecessary labelling, not worth any indepth discussion. As regards these two categories it was only an unnecessary academic game first to invent a new doctrine and then to subsume this doctrine under one form of liability explicitly foreseen in the Statute. It was a waste of time and human resources for the ad hoc
Tribunals. It still is a nice but misleading challenge for academics.
Beyond the reasoning of the decision to be discussed it is primarily the third category that in its broadness and vagueness infringes the principle of nullum crimen, nulla poena sine lege stricta. It is only the third category that takes issue with the fundamental basis of International Humanitarian Law, in that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”22. It is again the principle of individual guilt to criminalize the mens rea of a person without an exhaustively and precisely described actus reus. In short, the mere membership e.g. in an ethnical group can never be punished. The membership in a criminal group is, opposed to the law of many countries23 or, more importantly, the Statute of the ICC24, not punishable under the Statutes of ICTY and ICTR.
However, the striking similarity to the concept of JCE should have served as a warning. Further, with a view to ICC jurisprudence25, it has to be emphasized that in International Criminal Law there can be only one exhaustive enumeration of modes of liability. For this purpose also jurisprudence of SC/SL26 has briefly to be revisited.
II The jurisprudence of ICTY and ICTR from Tadić to Seromba Focussing exclusively on the jurisprudence this chapter shall show the development of JCE from its invention in Tadić for unknown reasons based on some out singled judgments of the past only, via Ojdanić27, limiting JCE to a definition of “committing”, and finally Seromba28, an Appeals Judgment that in essence without saying embarked on the objective limitation by
the criterion of Tatherrschaft (control over the act).29 Let us now start with 1) Prosecutor v. Tadić (Appeal Judgement) IT-94-1 (15 July 1999), paras 192, 201, 220, 227-228, inventing three categories of JCE.30 Before doing so, it has to be recalled what exactly is punishable in accordance with Article 7(1) ICTY Statute and Article 6(1) ICTR Statute. They have in common the following wording which must be the point of departure as it is strictly binding the judges: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles […] of the present Statute, shall be individually responsible for the crime.”
In this context it has to be recalled that Tadić had already been accused by the German federal prosecutor (Generalbundesanwalt) and the case was ready for hearing before a court in Munich when primacy was exercised by ICTY, thus the case had to be transferred to The Hague in October/November 1994.31 In Germany he was accused for having “committed” crimes based on a strong degree of suspicion as it would have been in former Yugoslavia. As shown also ICTY Statute provides for “committing” as a mode of liability. Why was it necessary to translate this into JCE? It might be allowed to assume that some judges felt obliged to lay down what they always wanted to express without necessity in fact or law.
Thus the doctrine of JCE has to be called what it was: an obiter dictum as it had no impact on the outcome of the case at hand.
The judgment starts precisely to the point at paras 192-201:
“192. Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co- perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility.”...
“201. It should be noted that in many post-World War II trials held in other countries, courts took the same approach to instances of crimes in which two or more persons participated with a different degree of involvement. However, they did not rely upon the notion of common purpose or common design, preferring to refer instead to the notion of co-perpetration. This applies in particular to Italian24632 and German24733 cases.”

However, continuing unfortunately at para.220:
“220. […] [T]he Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly [sic: no reasoning is given for this statement], in the Statute of the International Tribunal.(...)”
“227. In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:
i. A plurality of persons. They need not be organised in a military, political or administrative structure, as is clearly shown by the Essen Lynching34 and the Kurt Goebell35 cases.
ii. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.
iii. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example, murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose36.
228. By contrast, the mens rea element differs according to the category of common design under consideration.
With regard to the first category, what is required is the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators). With regard to the second category (which, as noted above, is really a variant of the first), personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment.
With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.”
Unfortunately the last element has been at times ignored. Only in Blaškić37 and Kordić and Čerkez38 it was clarified that to meet the standard of dolus eventualis the perpetrator must willingly accept or approve that risk.
2) Prosecutor v. Milutinović et al. (Decision on Draguljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise) IT-99-37-AR72 (21 May 2003), paras. 18-20, limiting JCE to “committing”)
Already in this decision ICTY would have had the unique opportunity to harmonise its modes of liability with those described as customary international law in the Rome-Statute. However the Appeals Chamber missed this opportunity.“18. The appellant in this case has advanced no cogent reason why the Appeals Chamber should come to a different conclusion than the one it reached in the Tadić case, namely, that joint criminal enterprise was provided for in the Statute of the Tribunal and that it existed under customary international law at the relevant time. The Defence's first contention is that the Appeals Chamber misinterpreted the drafters' intention as, it claims, they would have referred to joint criminal enterprise explicitly had they intended to include such a form of liability within the Tribunal's jurisdiction. As pointed out above, the Statute of the International Tribunal sets the framework within which the Tribunal may exercise its jurisdiction. A crime or a form of liability which is not provided for in the Statute could not form the basis of a conviction before this Tribunal.5539 The reference to that crime or to that form of liability does not need, however, to be explicit to come within the purview of the Tribunal's jurisdiction.5640 The Statute of the ICTY is not and does not purport to be, unlike for instance the Rome Statute of the International Criminal Court, a meticulously detailed code providing explicitly for every possible scenario and every solution thereto. It sets out in somewhat general terms the jurisdictional framework within which the Tribunal has been mandated to operate.”
In particular the two second to last sentences reveal the cogent question: Does JCE survive the test of nullum crimen sine lege stricta? Why not embrace the Rome-Statute? Has it become a question of misunderstood selfrespect and competition with ICC? Why was it necessary to continue with an apparent vicious circle or circle conclusion:
“19. As noted in the Tadić Appeal Judgment, the Secretary-General's Report provided that "all persons" who participate in the planning, preparation or execution of serious violations of international humanitarian law contribute to the commission of the violation and are therefore individually responsible.5741 Also, and on its face, the list in Article 7(l) appears to be non exhaustive in nature as the use of the phrase "or otherwise aided and abetted" suggests. But the Appeals Chamber does not need to consider whether, outside those forms of liability expressly mentioned in the Statute, other forms of liability could come within Article 7(l). It is indeed satisfied that joint criminal enterprise comes within the terms of that provision.”
“20. (...) The Prosecution pointed out in its indictment against Ojdanić that its use of the word “committed” was not intended to suggest that any of the accused physically perpetrated any of the crimes charged, personally. "Committing", the Prosecution wrote, "refers to participation in a joint criminal enterprise as a co-perpetrator".5942 Leaving aside the appropriateness of the use of the expression "co-perpetration" in such a context, it would seem therefore that the Prosecution charges co-perpetration in a joint criminal enterprise as a form of "commission" pursuant to Article 7(l) of the Statute, rather than as a form of accomplice liability. The Prosecution's approach is correct to the extent that, insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it, he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated. The Appeals Chamber therefore regards joint criminal enterprise as a form of "commission" pursuant to Article 7(l) of the Statute. 43”
What is the added value of this conclusion? Wouldn’t it have been more appropriate first to properly define the term “committing” as laid down in the Statute and then to find out to what extend this definition has its basis in customary international law? The Appeals Chamber made systematically the mistake to first ask what says customary law and then to subsume it under (better: press it into) the binding wording of the Statute.
3) In Prosecutor v. Stakić (Trial Judgement) IT-97-24-T (31 July 2003), paras 437-442 Trial Chamber II (composed of civil law judges only) undertook the unsuccessful attempt to make the best of it by overcoming the gap between the two mainstream approaches in international criminal law:
“ 438. The Trial Chamber emphasises that joint criminal enterprise is only one of several possible interpretations of the term “commission” under Article 7(1) of the Statute and that other definitions of co-perpetration must equally be taken into account. Furthermore, a more
direct reference to “commission” in its traditional sense should be given priority before considering responsibility under the judicial term “joint criminal enterprise”.
439. The Trial Chamber prefers to define ‘committing’ as meaning that the accused participated, physically or otherwise directly or indirectly,94244 in the material elements of the crime charged through positive acts or, based on a duty to act, omissions, whether individually or jointly with others. 94345 The accused himself need not have participated in all aspects of the alleged criminal conduct.

440. In respect of the above definition of ‘committing’, the Trial Chamber considers that a more detailed analysis of co-perpetration is necessary. For co-perpetration it suffices that there was an explicit agreement or silent consent to reach a common goal by coordinated cooperation and joint control over the criminal conduct. For this kind of co-perpetration it is typical, but not mandatory, that one perpetrator possesses skills or authority which the other perpetrator does not. These can be described as shared acts which when brought together achieve the shared goal based on the same degree of control over the execution of the common acts. In the words of Roxin: “The coperpetrator can achieve nothing on his own…The plan only ‘works’ if the accomplice94446 works with the other person.”94547 Both perpetrators are thus in the same position. As Roxin explains, “they can only realise their plan insofar as they act together, but each individually can ruin the whole plan if he does not carry out his part. To this extent he is in control of the act.”94648 Roxin goes on to say, “[t]his type of ‘key position’ of each co-perpetrator describes precisely the structure of joint control over the act.”94749 Finally, he provides the following very typical example:
If two people govern a country together - are joint rulers in the literal sense of the word - the usual consequence is that the acts of each depend on the co-perpetration of the other. The reverse side of this is, inevitably, the fact that by refusing to participate, each person individually can frustrate the action.94850 441. The Trial Chamber is aware that the end result of its definition of co-perpetration approaches that of the aforementioned joint criminal enterprise and even overlaps in part.
However, the Trial Chamber opines that this definition is closer to what most legal systems understand as “committing”94951 and avoids the misleading impression that a new crime95052 not foreseen in the Statute of this Tribunal has been introduced through the backdoor.95153
442. In respect of the mens rea, the Trial Chamber re-emphasises that modes of liability cannot change or replace elements of crimes defined in the Statute and that the accused must also have acted in the awareness of the substantial likelihood that punishable conduct would occur as a consequence of coordinated co-operation based on the same degree of control over the execution of common acts. Furthermore, the accused must be aware that his own role is essential for the achievement of the common goal.”
4) Similarly in Prosecutor v. Simić (Trial Judgement) IT-95-9-T (17 October 2003) in his Separate and Partly Dissenting Opinion Judge Per-Johan Lindholm stated at paras 2 and 5:
“2. I dissociate myself from the concept or doctrine of joint criminal enterprise in this case as well as generally. The so-called basic form of joint criminal enterprise does not, in my opinion, have any substance of its own. It is nothing more than a new label affixed to a since long well-known concept or doctrine in most jurisdictions as well as in international criminal law, namely co-perpetration. What the basic form of a joint criminal enterprise comprises is very clearly exemplified by Judge David Hunt in his Separate Opinion in Milutinović, Šainović and Ojdanić.235554 The reasoning in the Kupreškić Trial Judgement is also
illustrative.235655 The acts of – and the furtherance of the crime by – the co-perpetrators may of course differ in various ways.235756 If something else than participation as co-perpetrator is intended to be covered by the concept of joint criminal enterprise, there seems to arise a
conflict between the concept and the word “committed” in Article 7(1) of the Statute. Finally, also the Stakić Trial Judgement limited itself to the clear wording of the Statute when interpreting “committing” in the form of coperpetration. Stakić requires that co-perpetrators “can only realise their plan insofar as they act together, but each individually can ruin the
whole plan if he does not carry out his part. To this extent he is in control of the act.”235857
The Stakić Trial Judgement can, based on the doctrine of “power over the act” (“Tatherrschaft”), be read as distancing itself from the concept of joint criminal enterprise.235958”
5. ...”The concept or “doctrine” has caused confusion and a waste of time, and is in my opinion of no benefit to the work of the Tribunal or the development of international criminal law.”
5) The rigid answer followed immediately in the Appeal Judgment (it has to be noted that no party had appealed the legal assessment of the Trial Chamber): Prosecutor v. Stakić IT-97-24-A (22 March 2006), para. 62
“62. Upon a careful and thorough review of the relevant sections of the Trial Judgement, the Appeals Chamber finds that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of “co-perpetratorship”. This mode of liability, as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. By way of contrast, joint criminal enterprise is a mode of liability which is “firmly established in customary international law”14859 and is routinely applied in the Tribunal’s jurisprudence.14960 (...).”
6) Finally already in The Prosecutor v. Seromba (Appeal Judgement) ICTR-2001-66-A (12 March 2008), paras 171-172 the common Appeals Chamber came to accept a silent convergence: “171. On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba approved and embraced as his own the decision of Kayishema,
Ndahimana, Kanyarukiga, Habarugira, and other persons to destroy the church in order to kill the Tutsi refugees. It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings
demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than “committing”, indeed were as much as an integral part of the crime of genocide as the killings of the Tutsi refugees.41161 Athanase Seromba was not merely an aidor and abettor but became a principal perpetrator in the crime itself.62
172. The Appeals Chamber observes, Judge Liu dissenting, that Athanase Seromba’s conduct was not limited to giving practical assistance, encouragement or moral support to the principal perpetrators of the crime, which would merely constitute the actus reus of aiding and abetting.41263 Quite the contrary, the findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore finds that Athanase Seromba’s conduct can only be characterized as “committing” these crimes.”
In his dissenting opinion attached to this judgment Judge Liu, aware of this move of jurisprudence, made exactly this point:
“8. Thirdly, it is widely recognized that in various legal systems, however, “committing” is interpreted differently such that co-perpetratorship and indirect perpetratorship are also recognized as forms of “committing”.1564 Co-perpetrators pursue a common goal, either through an explicit agreement or silent consent, which they can only achieve by co-ordinated action and shared control over the criminal conduct. Each co-perpetrator must make a contribution essential to the commission of the crime.1665 Indirect perpetration on the other hand requires that the indirect perpetrator uses the direct and physical perpetrator as a mere “instrument” to achieve his goal, i.e., the commission of the crime. In such cases, the indirect perpetrator is criminally responsible because he exercises control over the act and the will of the direct and physical perpetrator.1766The Majority reasoned that “[i]t is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church” in order to find Athanase Seromba responsible for committing genocide, and that, “[w]hat is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed.”1867 Evident in this reasoning is the attribution of liability for
“committing” to the “perpetrator behind the perpetrator”1968 without the obvious characterization of Athanase Seromba’s conduct as co-perpetratorship or indirect perpetratorship.
9. Whilst the Majority’s approach would make it much easier to hold criminally liable as a principal perpetrator those persons who do not directly commit offences, this approach is inconsistent with the jurisprudence. In the Stakić Appeal Judgement, the Appeals Chamber held that the Trial Chamber erred in conducting its analysis of the responsibility of the appellant within the framework of co-perpetratorship, and unanimously and unequivocally said of co-perpetratorship that, “[t]his mode of liability, as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers.”2069 Consequently, the Appeals Chamber concluded that it “is not valid law within the jurisdiction of this Tribunal.”2170...”
III) The author’s opinion on this jurisprudence In order not to repeat (or worse: to contradict) myself let me make use of and refer to excerpts of my own dissenting opinions as laid down inter alia in:
1) Prosecutor v. Simić (Appeal Judgement) IT-95-9-A (28 November 2006)
“3. The wording of the Statute ultimately limits its interpretation. It follows that the only crimes or modes of liability are those foreseen in the Statute. Even within the scope of the Statute, any interpretation may not exceed what is recognized by international law.971
Therefore, it is necessary and at the same time sufficient to plead a specific crime and a specific mode of participation as set out in the explicit provisions of the Statute. The Prosecution is consequently not required to plead any legal interpretation or legal theory concerning a mode of participation that does not appear in the Statute, such as joint criminal enterprise, in particular as the Appeals Chamber has held that joint criminal enterprise is to be regarded as a form of “committing”.1072”
“11. On a more general note, I wish to point out that it would have been possible to interpret Article 7(1) of the Statute1773 as a monistic model of perpetration (Einheitstäterschaft) in which each participant in a crime is treated as a perpetrator irrespective of his or her degree of participation.1874 Such an approach would have allowed the Prosecution to plead Article 7(1) of the Statute in its entirety without having to choose a particular mode of participation. In that case, the Judges would have been able to assess the significance of an accused’s contribution to a crime under the Statute at the sentencing stage, thereby saving the Tribunal the trouble of developing an unnecessary participation doctrine. Unfortunately, the Tribunal’s jurisprudence has come to distinguish on a case-by-case basis between the different modes of liability. 12. In the case at hand, the Trial Chamber applied the theory of joint criminal enterprise.
However, this concept is not expressly included in the Statute and is only one possible interpretation of “committing” in relation to the crimes under the Statute.1975
13. Indeed, the laws of the former Yugoslavia and the laws of the successor States on the territory of the former Yugoslavia all include the concept of co-perpetratorship:

The Statute of the Tribunal in Article 24(1) explicitly only provides for the Tribunal to have recourse to the general practice regarding prison sentences in the former Yugoslavia.
However, this does not exclude the possibility that the Tribunal should also, by the same token, and (at least) as a matter of judicial fairness and courtesy have recourse to the relevant substantive laws applicable on the territory of the former Yugoslavia.
14. Moreover, in many other legal systems, committing is interpreted differently from the jurisprudence of the Tribunal. Since Nuremberg and Tokyo, both national and international criminal law have come to accept, in particular, co-perpetratorship as a form of committing2076. For example, the recent Comparative Analysis of Legal Systems, carried out by the Max-Planck-Institute, Freiburg, Germany, illustrates that, inter alia, the following States include co-perpetratorship in their criminal codes2177: In addition, the following States have accepted the concept of co-perpetratorship:

17. As an international criminal court, it is incumbent upon this Tribunal not to turn a blind eye to these developments in modern criminal law and to show open-mindedness, respect and tolerance – unalienable prerequisites to all kinds of supranational or international cooperation in criminal matters – by accepting internationally recognized legal interpretations and theories such as the notion of co-perpetratorship. Co-perpetratorship differs slightly from joint criminal enterprise with respect to the key element of attribution.2678 However, both approaches widely overlap and have therefore to be harmonized in the jurisprudence of both ad hoc Tribunals. Such harmonization could at the same time provide all categories of joint criminal enterprise with sharper contours by combining objective and subjective components in an adequate way. As pointed out by the Appeals Chamber in the Kunarac Appeal Judgement, “the laws of war ‘are not static, but by continual adaptation follow the needs of a changing world.’”2779 In general, harmonization will lead to greater acceptance of the Tribunal’s jurisprudence by international criminal courts in the future and in national systems, which understand imputed criminal responsibility for “committing” to include coperpetratorship[…]”
“20. Modern criminal law has come to apply the notion of indirect perpetration even where the direct and physical perpetrator is criminally responsible (“perpetrator behind the perpetrator”).3180 This is especially relevant if crimes are committed through an organized structure of power. Since the identity of the direct and physical perpetrator(s) is irrelevant, the control and, consequently, the main responsibility for the crimes committed shifts to the persons occupying a leading position in such an organized structure of power.3281 These persons must therefore be regarded as perpetrators irrespective of whether the direct and physical perpetrators are criminally responsible themselves or (under exceptional circumstances) not.”
2) Prosecutor v. Martić (Appeal Judgement) IT-95-11-A (08 October 2008) “2. However, I feel compelled to write separately because I firmly believe that Martić's criminal conduct has to be qualified as that of a (co)-perpetrator under the mode of liability of “committing” pursuant to Article 7(1) of the Statute of the International Tribunal. My concern is that Martić's criminal conduct is primarily qualified as relying on membership in a group – the so-called joint criminal enterprise (JCE) – which cannot be reconciled with the Statute and on the contrary seems to trivialize Martić's guilt. Martić has to be seen as a high-ranking principal perpetrator and not just as a member of a criminal group.”
“5. The Statute does not penalize individual criminal responsibility through JCE. The Statute does not criminalize the membership in any association or organization. The purpose of this International Tribunal is to punish individuals and not to decide on the responsibility of states, organizations or associations. As stated in Nuremberg:
Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.682 Consequently, any idea of collective responsibility, shifting the blame from individuals to associations or organizations and deducing criminal responsibility from membership in such associations or organizations, must be rejected as not only ultra vires but also counterproductive to the International Tribunal’s mandate of bringing peace and reconciliation to the territory of the former Yugoslavia. It is therefore that I cannot agree with this Judgement when it describes a perpetrator as “a member of a JCE”783, when it speaks of “members of a JCE [who] could be held liable for crimes committed by principal perpetrators who were not members of the JCE”884 and when it refers to the accused’s “fellow members [of the JCE].”985 While the Appeals Chamber has in the past explicitly stated that “criminal liability pursuant to a joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes,”1086 the constant expansion of the concept of JCE in the jurisprudence of the International Tribunal suggests the contrary. In this context, I recall the report of the Secretary-General of the United Nations, in which he stated that: The question arises … whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this statute are carried out by natural persons; such person would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups.1187
6. I need not reiterate the fact that the Appeals Chamber of this International Tribunal has unnecessarily and without any reasoning proprio motu discarded internationally accepted definitions of the term committing, such as the concepts of co-perpetration, perpetrator behind the perpetrator or indirect perpetrator, all of them forming part of customary international law1388 as was held in particular in the most important recent decisions of the International Criminal Court.1489 Suffice it to say that it is not helpful at all, at this stage of the development of international criminal law, that there now exist two competing concepts of commission as a mode of liability. The unambiguous language of both decisions rendered by Pre-Trial Chamber I of the International Criminal Court endorses the concept of coperpetration when interpreting the word “to commit” under Article 25(3)(a) of the ICC Statute.1590 For this mode of liability, there can be only one definition in international criminal law.1691
7. Furthermore, the Appeals Chamber’s constant adjustment of what is encompassed by the notion of JCE1792 raises serious concerns with regard to the principle of nullum crimen sine lege. The lack of an objective element in the so-called third (“extended”) category of JCE is particularly worrying. It cannot be sufficient to state that the accused person is liable for any actions by another individual, where “the commission of the crimes … were a natural and
foreseeable consequence of a common criminal purpose.”1893 What is missing here is an additional objective component, such as control over the crime,1994 as would be provided under the concepts of co-perpetration or indirect perpetration. This necessary element of having control over the crime would on the one hand serve as a safeguard to adequately limit the scope of individual criminal responsibility, and on the other hand properly distinguish between a principal and an accessory. By contrast, the current shifting definition of the third category of JCE has all the potential of leading to a system, which would impute guilt solely by association.
8. To avoid any misunderstanding: In the present case, based on the sum of all findings of the Trial Chamber, Martić exercised the necessary control over the criminal conduct and was consequently a principal perpetrator of all the crimes for which he was convicted. It is immaterial that he was physically removed from many of the crimes. As was posited by the Jerusalem District Court in the Eichmann case: In such an enormous and complicated crime as the one we are now considering, wherein many people participated at various levels and in various modes of activity – the planners, the organizers and those executing the acts, according to their various ranks – there is not much point in using the ordinary concepts of counselling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of the victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals were close to, or remote from, the actual killer of the victim, means nothing as far as the measure of his responsibility is concerned. On the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher ranks of command…2095
9. I also note with concern that neither the artificial concept of JCE nor its compartmentalization in three categories has any added value when it comes to sentencing. The decisive element must be in principle the individual contribution of an accused. At times, the incorrect impression is given that the third category of JCE attracts a lower sentence simply because of its catch-all nature. However, in principle, a person’s guilt must be described as increasing in tandem with his position in the hierarchy: The higher in rank or further detached the mastermind is from the person who commits a crime with his own hands, the greater is his responsibility.2196
3) Gacumbitsi v. The Prosecutor (Appeal Judgement) ICTR-2001-64-A (7 July 2006),
“19. Especially the notion of indirect perpetration has been employed in cases concerning organized crime, terrorism, white collar crime or state induced criminality. For example, Argentinean Courts have entered convictions for crimes committed by members of the Junta regime based on indirect perpetratorship.3497 In one of its leading cases, the Politbüro Case, the German Federal Supreme Court (Bundesgerichtshof) held three high-ranking politicians of the former German Democratic Republic responsible as indirect perpetrators for killings of persons at the East German border by border guards.3598
20. Modern criminal law has come to apply the notion of indirect perpetration even where the direct and physical perpetrator is criminally responsible (“perpetrator behind the perpetrator”).3699 This is especially relevant if crimes are committed through an organized structure of power in which the direct and physical perpetrator is nothing but a cog in the wheel that can be replaced immediately. Since the identity of the direct and physical perpetrator is irrelevant, the control and, consequently, the main responsibility for the crimes committed shifts to the persons occupying a leading position in such an organized structure of power.37100 These persons must therefore be regarded as perpetrators irrespective of whether the direct and physical perpetrators are criminally responsible themselves or (under exceptional circumstances) not. This approach was applied, for example, by German courts in cases concerning killings at the East German border: as far as border guards who had killed persons were identified and brought to trial, they were generally convicted as perpetrators.
This, however, did not reduce the criminal responsibility of those who had acted “behind the scenes”. As the German Federal Supreme Court (Bundesgerichtshof) held in the aforementioned Politbüro Case:
[I]n certain groups of cases, however, even though the direct perpetrator has unlimited responsibility for his actions, the contribution by the man behind the scenes almost automatically brings about the constituent elements of the offence intended by that man behind the scenes. Such is the case, for example, when the man behind the scenes takes advantage of certain basic conditions through certain organisational structures, where his contribution to the event sets in motion regular procedures. Such basic conditions with regular procedures are found particularly often among organisational structures of the State […] as well as in hierarchies of command. If the man behind the scenes acts in full awareness of these circumstances, particularly if he exploits the direct perpetrator’s unconditional willingness to bring about the constituent elements of the crime, and if he wills the result as that of his own actions, then he is a perpetrator by indirect perpetration. He has control over the action […]. In such cases, failing to treat the man behind the scenes as a perpetrator would not do justice to the significance of his contribution to the crime, especially since responsibility often increases rather than decreases the further one is from the scene of the crime […].38101
21. For these reasons, the notion of indirect perpetratorship suits the needs also of international criminal law particularly well.39102 It is a means to bridge any potential physical distance from the crime scene of persons who must be regarded as main perpetrators because of their overall involvement and control over the crimes committed. This was recognized upon the establishment of the International Criminal Court whose Statute, in Article 25(3)(a), includes both the notion of co-perpetration and indirect perpetration (“perpetrator behind the perpetrator)”... Given the wide acknowledgement of co-perpetratorship and indirect perpetratorship, the ICC Statute does not create new law in this respect, but reflects existing law.”
Let me now turn to IV) Decisions rendered by the ICC to discontinue the use of the concept of JCE Already in The Prosecutor v. Lubanga (Pre-Trial Chamber Decision on the Confirmation of Charges) ICC-01/04-01/06 (29 January 2007) ,103 ICC clearly departs in particular at paras 235 et seq. from the overly subjective concept of JCE.
The ICC went on with its in-depth analysis of this mode of liability in The Prosecutor v. Katanga et al. (Pre-Trial Chamber Decision on the Confirmation of Charges) ICC-01/04-
01/07 (30 September 2008):
“495. The commission of a crime through another person is a model of criminal responsibility recognised by the world's major legal systems.655104 The principal (the 'perpetrator-by-means') uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime. Typically, the executor who is being used as a mere instrument will not be fully criminally responsible for his actions.656105 As such, his innocence will depend upon the availability of acceptable justifications and/or excuses for his actions.
Acceptable justifications and excuses include the person's: i) having acted under a mistaken belief; ii) acted under duress; and/or iii) not having the capacity for blameworthiness.
496. A concept has developed in legal doctrine that acknowledges the possibility that a person who acts through another may be individually criminally responsible, regardless of whether the executor (the direct perpetrator) is also responsible. This doctrine is based on the early works of Claus Roxin and is identified by the term: 'perpetrator behind the perpetrator' (Täter hinter dem Täter).657106
497. The underlying rationale of this model of criminal responsibility is that the perpetrator behind the perpetrator is responsible because he controls the will of the direct perpetrator. As such, in some scenarios it is possible for both perpetrators to be criminally liable as principals: the direct perpetrator for his fulfilment of the subjective and objective elements of the crime, and the perpetrator behind the perpetrator for his control over the crime via his control over the will of the direct perpetrator.
498. Several groups of cases have been presented as examples for the perpetrator behind the perpetrator's being assigned principal responsibility despite the existence of a responsible, direct perpetrator (i.e., one whose actions are not exculpated by mistake, duress, or the lack of capacity for blame-worthiness).658107 This notwithstanding, the cases most relevant to international criminal law are those in which the perpetrator behind the perpetrator commits the crime through another by means of "control over an organisation" (Organisationsherrschaft).659108” a. Control over the organisation
500. For the purposes of this Decision, the control over the crime approach is predicated on a notion of a principal's "control over the organisation". The Chamber relies on this notion of "control over the organisation" for numerous reasons, including the following: (i) it has been incorporated into the framework of the Statute; (ii) it has been increasingly used in national jurisdictions; and (iii) it has been addressed in the jurisprudence of the international tribunals.
Such notion has also been endorsed in the jurisprudence of Pre-Trial Chamber III of this Court.
506. This doctrine has also been applied in international criminal law in the jurisprudence of the international tribunals.672109 In The Prosecutor v. Milomir Stakić Judgement, Trial Chamber II of the ICTY relied on the liability theory of coperpetration of a crime through
another person as a way to avoid the inconsistencies of applying the so-called "Joint Criminal Enterprise" theory of criminal liability to senior leaders and commanders.673110
507. As noted by the Defence for Germain Katanga,674111 the Trial Chamber's Judgement was overturned on appeal. However, the reasoning of the ICTY Appeals Chamber's Judgement is of utmost importance to an understanding of why the impugned decision does not obviate its validity as a mode of liability under the Rome Statute.
508. The Appeals Chamber rejected this mode of liability by stating that it did not form part of customary international law.675112 However, under article 21(l)(a) of the Statute, the first source of applicable law is the Statute. Principles and rules of international law constitute a secondary source applicable only when the statutory material fails to prescribe a legal solution. Therefore, and since the Rome Statute expressly provides for this specific mode of liability, the question as to whether customary law admits or discards the 'joint commission through another person' is not relevant for this Court. This is a good example of the need not to transfer the ad hoc tribunals' case law mechanically to the system of the Court.676113
509. Finally, most recently, the Pre-Trial Chamber III of the Court also endorsed this notion of individual criminal responsibility in the case of The Prosecutor v. Jean-Pierre Bemba Gombo. Having established the suspect's position as the leader of the organisation and described the functioning of the militia, the Pre-Trial Chamber III stated:
In light of the foregoing, the Chamber considers that there are reasonable grounds to believe that, as a result of his authority over his military organisation, Mr. [...] had the means to exercise control over the crimes committed by MLC troops deployed in the CAR.677114
510. In sum, the acceptance of the notion of 'control over an organised apparatus of power' in modern legal doctrine,678115 its recognition in national jurisdictions,679116 its discussion in the jurisprudence of the ad hoc tribunals which, as demonstrated, should be distinguished from its application before this Court, its endorsement in the jurisprudence of the Pre-Trial Chamber III of the International Criminal Court but, most importantly, its incorporation into the legal framework of the Court, present a compelling case for the Chamber's allowing this approach to criminal liability for the purposes of this Decision.”
521. Co-perpetration based on joint control over the crime involves the division of essential tasks between two or more persons, acting in a concerted manner, for the purposes of committing that crime. As explained, the fulfilment of the essential task(s) can be carried out by the co-perpetrators physically or they may be executed through another person.”
a. Existence of an agreement or common plan between two or more persons
522. In the view of the Chamber, the first objective requirement of co-perpetration based on joint control over the crime is the existence of an agreement or common plan between the persons who physically carry out the elements of the crime or between those who carry out the elements of the crime through another individual. Participation in the crimes committed by the latter without coordination with one's co-perpetrators falls outside the scope of coperpetration within the meaning of article 25(3)(a) of the Statute.
523. As explained in the Lubanga Decision, the common plan must include the commission of a crime.687117 Furthermore, the Chamber considered that the agreement need not be explicit, and that its existence can be inferred from the subsequent concerted action of the coperpetrators. 68118
b. Coordinated essential contribution by each co-perpetrator resulting in the realisation of the
objective elements of the crime
524. The Chamber considers that the second objective requirement of co-perpetration based on joint control over the crime is the coordinated essential contribution made by each coperpetrator resulting in the realisation of the objective elements of the crime.
525. When the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned - and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks - can be said to have joint control over the crime. Where such persons commit the crimes through others, their essential contribution may consist of activating the mechanisms which lead to the automatic compliance with their orders and, thus, the commission of the crimes.
526. Although some authors have linked the essential character of a task – and hence, the ability to exercise joint control over the crime - to its performance at the execution stage,689119 the Statute does not encompasses any such restriction. Designing the attack, supplying weapons and ammunitions, exercising the power to move the previously recruited and trained troops to the fields; and/or coordinating and monitoring the activities of those troops, may constitute contributions that must be considered essential regardless of when are they exercised (before or during the execution stage of the crime).
This jurisprudence was accepted and further fine-tuned in The Prosecutor v. Bemba (Pre-Trial Chamber Decision on the Confirmation of Charges) ICC-01/05-01/08 (15 June 2009), there in particular at paras 350-353, 369-371. Space available does not allow going into further details even though a careful reading of all these three decisions (Lubanga, Katanga, Bemba) is more than warranted.
V) The unexpected but not surprising revival of the JCE doctrine by hybrid/internationalized tribunals
1) Special Court/Sierra Leone Prosecutor v. Sesay, Kallon and Gbao (Appeal Judgement), SCSL-04-15-A (26 October 2009), paras 400-402, 475, 485
“400. Based on the legal authorities and reasoning provided for these holdings, and considering that they have been consistently affirmed by the subsequent jurisprudence of both the ICTY and the ICTR,975120 the Appeals Chamber is satisfied that the holdings reflect customary international law at the time the crimes in the present case were committed, and on that basis endorses them. Kallon’s submission that JCE liability cannot attach for crimes committed by principal perpetrators who are not proven to be members of the JCE is therefore dismissed.
401. Kallon fails to develop whether, and if so how, the above holdings in Brđanin are contrary to his position that the accused must be shown to have participated “causally” in at least one element of the actus reus by the principal perpetrator.976121 Although the accused’s participation in the JCE need not be a sine qua non, without which the crimes could or would not have been committed,977122 it must at least be a significant contribution to the crimes for which the accused is to be found responsible.978123 As Brđanin makes clear, this standard applies also where the accused participates in the JCE by way of using non-JCE members to commit crimes in furtherance of the common purpose.979124
402. Lastly, Kallon’s submission that the Brđanin holdings are inapplicable in the present case is based on the premise that the Common Criminal Purpose found by the Trial Chamber was not inherently criminal. As that premise is erroneous, this submission fails.980125
475. At issue here are primarily the mens rea elements for JCE 1 and JCE 3. Under JCE 1, also known as the “basic” form of JCE, liability attaches where the accused intended the commission.1235126 In other words, JCE 1 liability attaches to crimes within the common criminal purpose.1236127 By contrast, JCE 3 liability attaches to crimes which are not part of the common criminal purpose.1237128 That is why it is often referred to as the “extended” form of JCE.1238129 However, before an accused person can occur JCE 3 liability, he must be shown to have possessed “the intention to participate in and further the criminal activity or the criminal purpose of a group.”1239130 Therefore, both JCE 1 and JCE 3 require the existence of a common criminal purpose which must be shared by the members of the JCE, including in particular the accused.1240131 Where that initial requirement is met, JCE 3 liability can attach to crimes outside the common criminal purpose committed by members of the JCE or by non-JCE perpetrators used by members of the JCE if it was reasonably foreseeable to the accused that a crime outside the common criminal purpose might be perpetrated by other members of
the group in the execution of the common criminal purpose and that the accused willingly took that risk (dolus eventualis).1241132
485. The Trial Chamber defined the Common Criminal Purpose of the JCE as consisting of the objective to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas, and the crimes as charged under Counts 1 to 14 as the means of achieving that objective.1252133 The Trial Chamber further found that Gbao was a “participant” in the JCE.1253134 The Appeals Chamber, Justices Winter and Fisher dissenting, considers that in consequence Gbao, as with the other participants of the JCE, would be liable for all crimes which were a natural and foreseeable consequence of
putting into effect that criminal purpose.”
Attached are two remarkable Partially Dissenting and Concurring Opinions (Justice Shireen Avis Fisher, paras 17-19, 26, 44-45 and President Judge Renate Winter insofar concurring)
“17. In affirming Gbao’s convictions under JCE, the Majority adopts the Trial Chamber’s circular reasoning, but compounds the Trial Chamber’s error by collapsing the distinction between JCE 1 and JCE 3. The Majority reasons that it was sufficient for the Trial Chamber to conclude that Gbao was a “participant” in the JCE and therefore shared the Common Criminal Purpose.27135 By virtue of that conclusion, the Majority reasons, he is responsible for all crimes by members of the JCE that either he intended or were reasonably foreseeable.28136 Therefore, according to the Majority’s reasoning, it matters not whether Gbao intended the crimes in Bo, Kenema and Kono;29137 given that he was “a member of the JCE,” he was liable for the commission of “the crimes in Bo, Kenema and Kono Districts, which were within the Common Criminal Purpose,” so long as it was “reasonably foreseeable that some of the members of the JCE or persons under their control would commit crimes.”30138
18. This reasoning is not only circular, but dangerous. First, describing Gbao as a “participant” under this theory is mistaken because whether or not he was a “participant” is only significant if it means that he shared the common intent of the JCE, that is, the Common Criminal Purpose. The Trial Chamber’s findings, unquestioned, and indeed quoted by the Majority, state unequivocally that he did not.31139
19. Second, the Majority collapses the distinction between the mens rea required for JCE 1 and the mens rea applicable to JCE 3 by holding that Gbao can be liable for crimes within the Common Criminal Purpose that he did not intend and that were only reasonably foreseeable to him. Such an extension of JCE liability blatantly violates the principle nullum crimen sine lege because it imposes criminal responsibility without legal support in customary international law applicable at the time of the commission of the offence. The Majority makes no effort to reason why it considers that this extension of JCE liability was part of the law to which Gbao was subject at the time these offences were committed and it fails to cite a single case in which this extension of liability is recognized as part of customary international law.
This dearth of jurisprudential support was acknowledged by the Prosecution which admitted at the Appeal Hearing that there “may be no authority” in international criminal law in which the mens rea element for JCE is characterized or applied as the Trial Chamber applied it to Gbao.32140“
“26. The Trial Chamber’s error with respect to Gbao’s mens rea is not simply a harmless mistake that can be rectified or overlooked on appeal. Rather, because of this error, the entire legal edifice the Trial Chamber and Majority have constructed for Gbao’s JCE liability is so fundamentally flawed that those convictions which rest upon it collapse.”
“ 44. In concluding, I am obliged to note that the doctrine of JCE, since its articulation by the ICTY Appeals Chamber in Tadić, has drawn criticism for its potentially overreaching application. International criminal tribunals must take such warnings seriously,59141 and ensure that the strictly construed legal elements of JCE are consistently applied60142 to safeguard against JCE being overreaching or lapsing into guilt by association.61143
45. For Gbao, the Trial Chamber and the Majority have abandoned the safeguards laid down by other tribunals as reflective of customary international law. As a result, Gbao stands convicted of committing crimes which he did not intend, to which he did not significantly contribute, and which were not a reasonably foreseeable consequence of the crimes he did intend. The Majority’s decision to uphold these convictions is regrettable. I can only hope that the primary significance of that decision will be as a reminder of the burden resting on triers of fact applying JCE, and as a warning of the unfortunate consequences that ensue when they fail to carry that burden.”
2) Extraordinary Chambers in the Courts of Cambodia (ECCC) I do not want to comment on the Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, Office of the Co-Investigating Judge /Extraordinary Chambers in the Courts of Cambodia, Case File No: 002/19-09-2007-ECCCOCIJ (8 December 2009)
This overly simplistic (in essence: un)reasoned decision and its surprising disposition (three dense expert-opinions had been submitted but not discussed) has received its appropriate answer in the decision before us.
The only remaining questions are:
Why was it that the alleged necessity of a creating a new doctrine was not discussed in general and in order to harmonize the jurisprudence on modes of liability with the one elaborated in great detail by ICC?
The second question is too difficult for me to answer, being predominantly a practice oriented lawyer focussing on a concrete behaviour of human beings. How is it possible to apply two different modes of liability when the nullum crimen test at the end of the day focuses, the margin of discretion in mind, on nothing but a foreseeability test. Its seems to be artificial to make a to be proven distinction whether an individual can foresee the criminality of his or her behaviour based on international law, national law or on principles generally accepted in civilised countries.
VI Conclusion
The doctrine of Joint Criminal Enterprise has its origin in the first judgment ever handed down by an Appeal Chamber of an independent impartial international criminal court not established by the winners of a war. The authors apparently were eager to set the tone and the standard for a not yet existing general part of international crimes. However, neither legally nor factually it was necessary to depart from the strict wording of the ICTY-Statute. The Tadić-case as such did not call for this academic exercise, JCE was and is an obiter dictum.
The intention, no doubt, was good. The goal was to develop a catch all mode of liability abolishing “impunity” in macro-criminality in humanitarian law during times of an armed conflict based on customary international law for the time to come. Something for eternity. In doing so and writing obiter at length the judges went beyond their mandate in the case before them. They did not show the necessary self-restraint. Customary international law and the need to observe, in the framework of Article 15 ICCPR, the principle of nullum crimen sine lege stricta is like cat and dog. There is the wishful thinking144 that something “must be punishable”, a phrase often heard in legal discussions, and the limitation of both, the wording of binding statutory law, and the dictate not to create retroactively new criminal law.

The baby JCE was born. It was and is under the permanent control of the parents, judges of ICTY and ICTR. I am convinced that until today’s date no harm was done to any perpetrator before ICTY/ICTR due to the application of the JCE doctrine. On the contrary, as shown above, based on JCE the criminal conduct of a perpetrator was trivialized in a few cases from committing to aiding and abetting, sometimes (Seromba) corrected by the Appeals Chamber.
The Appeals Chambers of ICTY/ICTR maintained control over the act (Tatherrschaft) in that the majority of judges were eager to maintain this doctrine, always prepared to adjust the doctrine to the needs of a concrete case.
However, jurisprudence in particular of SC/SL shows that a child grows and becomes independent from parental control. The foreseeable and predicted risk emanating from the vagueness of the third category of JCE has found its realization at least in part in the final conviction of the accused Gboa as convincingly shown by the dissenting judges. This may never happen again. The lesson to be learned is that judges should never yield to the temptation to act as kind of legislator and when only developing the law with legitimate “judicial creativity” they must act with the highest degree of scrutiny always envisaging: what can be in a worst case scenario the result, how can an exaggerated interpretation or application be avoided when a doctrine is no longer subject to own control.
We should applaud the mothers and fathers of the Rome-Statute. It shows that a well drafted general part of a code of criminal procedure (with the sufficient time, which was not available for the skeleton Statutes of ICTY and later ICTR) is able to meet the challenges of today’s
macro criminality. At the end of the day the strict modes of liability and responsibility as laid down there and carefully applied by the acting judges will be the only surviving account in International Criminal Law.
We should be grateful to the authors of the extremely well-founded and detailed judgement before us. It allows for the necessary harmonisation of international criminal law, here the applicable modes of liability.
Two wishes remain:
a) That the other benches of ECCC uphold the rejection of JCE III b) That it will be expressly said that a sound interpretation of “committing” needs no other labelling (aka JCE)
No doubt international criminal law will prevail based on a humble, patient but self-confident step by step approach taking also carefully and respectfully into account the individual specificities of the national law of a situation, if only they do not militate against the common goal: to achieve peace by justice and to try to achieve justice by finding the truth as far as possible. There is no truth without justice, no justice without truth!

STATEMENT BY THE INTERNATIONAL CO-PROSECUTOR

2011-07-08T22:37:00.000-05:00

Official ECCC Website

On Friday 10 June 2011, the International Co-Prosecutor, Andrew Cayley, resubmitted three investigative requests and a request for an extension of the deadline for filing Civil Party Applications in Case 003 to the Office of the Co-Investigating Judges.

The resubmissions follow the Co-Prosecutors’ decision, on Friday 10 June 2011, to record four Disagreements pursuant to Rule 71 (1) of the Internal Rules of the court. The Disagreements were made in response to the Co-Investigating Judges’ holding that the Internal Rules leave no room for solitary action and therefore require either a delegation of power under Internal Rule 13 (3) or a record of Disagreement under Internal Rule 71 (1).

Although the International Co-Prosecutor has complied with the Co-Investigating Judges’ requirement, and registered four Disagreements, he is still appealing the Co-Investigating Judges’ decision of 7 June 2011. He does not accept the Co-Investigating Judges’ interpretation of the law so pursuant to Internal Rules 74 (2) and 75 (1) a Notice of Appeal was filed on Friday 10 June 2011.

With respect to the resubmission of the four requests the International Co-Prosecutor respectfully requested that the Co-Investigating Judges use their discretion pursuant to Internal Rule 39 (4) (b) and accept the resubmissions out of time. Internal Rule 39 (4) (b) allows the Co-Investigating Judges to recognize the validity of any action executed after the expiration of a time limit. The Co-Investigating Judges have previously relied on Internal Rule 39 (4) (b) to extend the deadline for the filing of Civil Party Applications in Case 003.

The Co-Investigating Judges have an obligation under Internal Rule 55 and the Law of the ECCC to conduct their investigation impartially and to take investigative action conducive to ascertaining the truth. The Fundamental Principles on which this court rests, and on which the Co-Investigating Judges have already relied, are contained in Internal Rule 21. This Rule speaks to fairness, legal certainty and the safeguarding of the interests of victims as well as all parties to the proceedings. The Pre-Trial Chamber has held that when considering whether to grant Investigate Requests it is the “obligation” of both the Co-Investigating Judges and the Pre-Trial Chamber to take into consideration the fundamental principles laid out in Rule 21 of the Internal Rules of the court.

A Developing Hat Fashion at the ICTs?

2011-07-05T16:45:00.001-05:00

Photos by Reuters

2 hats worn in 2 weeks at the international criminal tribunals? This is more than have been worn since the inception of the first of them, the ICTY, in 1992.

Today (Jul, 6) Ratko Mladic has added his touch to this rapidly developing fashion. Unlike Noun Chea who goes for the warmth of the ski hat, Mladic is an enthusiast of a hat which looks like a crossbreed between a baseball hat and a JNA (Yugoslav National Army)-issue hat.

While there is reasonable doubt of Noun's intentions of wearing his headgear of choice in the courtroom, there is no doubt about Mladic's -- he is snubbing the court.

Ieng Sary's Pardon Pt II

2011-07-02T20:59:00.000-05:00

Ieng Sary's Pardon Pt I

2011-07-02T20:55:00.000-05:00

Noun Chea Walks Out Pt II

2011-07-02T20:49:00.000-05:00

Noun Chea Walks Out Pt I

2011-07-02T20:43:00.000-05:00

PTC Sweeps Another One Under the Rug

2011-07-02T08:37:00.001-05:00

While Case 002 is getting in high gear, the brouhaha between the Co-Investigating Judges (CIJs) and the International Co-Prosecutor (CP) seems to have abated. At least for now as none of the issues have been resolved. The contretemps kicked off with the International CP filing a request for additional investigation getting the wind that the CIJs might not be interested in letting Case 003 through. The CIJs replied with a decision arguing that the International CP’s request was inadmissible as it was filed unilaterally without power to do so having been delegated by the National CP. The National CP confirmed the correctness of the CIJs’ perception of the situation. The International CP essentially retorted with “we have done this before, we will do this again” line of counter-argumentation. CIJs declared the investigation in Case 003 closed which essentially meant that they filed what under Cambodian law is known as a ‘non-suit’ or in simple terms ‘case closed’. The International CP took the dispute to the public putting the CIJs in the line of fire. Incensed, the CIJs lashed back ordering the International CP to retract his statement which in simple language meant to back down and apologize for disrespecting the CIJs. Touch talk was thrown around. The International CP was put on a deadline to kowtow to the CIJs’ ultimatum. The International CP would not budge and appealed the dispute to the Pre-Trial Chamber (PTC) instead which put him outside the realm of possibility of contempt of the court. PTC, having sat on the appeal for a bit, issued a preliminary opinion telling the brawlers to chill explaining that the International CP’s appeal would have no real way of remedying out the situation and the CIJs’ demand to retract was equally futile as it would do nothing to return things to the situation before the International CP spilled the beans by made their dispute public (the PTC underplayed the obvious fact that the jousting was not about preservation of the confidentiality of court documents but the raw nature of men’s desire to dominate other men). PTC closed with “we will look at it later” couched in the language of officialdom. Last time we saw a “we will look at it later” from the PTC it took them over a year to get around to looking at it again following which the Chamber issued a noncommittal missive promising to “continue looking at it”. This was the beginning of this dispute. It is difficult to see how the PTC has not contributed to this mess. Now that he finds himself at the beginning of a long and difficult trial, the International CP will have to spread himself thin to continue fighting his fight over 003 without as much as moral support from the National CP while pulling weight shaping complex (such as trying to bring JCE III back from a TC-induced coma) legal arguments (National CP can read them in court but someone needs to actually write them before that can be done) to win 002 with flying colors. The International CP doubtless understands that waiting for the PTC’s grace with bated breath will not bring 003 back and some serious cattle prodding is the only way it ever gets underway. The question here is does the International CP have a cattle prod in his inventory?

An Old Man's Desire for Comfort or A Snub at the Court?

2011-06-28T19:03:00.000-05:00

At the outset of his trial Noun Chea requested that he be allowed to wear what looks like skiing attire (see picture; AFP PHOTO/HO/MARK PETERS/ ECCC). He noted his health concerns and the overall climate of the courtroom. The Trial Chamber permitted. While highly unusual, there would be nothing wrong with letting the old man be comfortable particularly as he is about to stand the trial of his life but for the remark Noun made shortly after his wardrobe request was approved. It turns out he is not happy with the court. Could it be that the attire of choice is part of his way of showing the court exactly how unhappy he is (his attire does stick out like a sore thumb and it is impossible not to look at when looking at the courtroom as a whole)?

Trial in Case 002 Begins

2011-06-27T19:34:00.000-05:00

Perhaps, ECCC's most important trial begins today on June 27, 2011. Four defedants will stand accused of crimes against humanity (including genocide), war crimes, and crimes under the domestic Cambodian law of the period. The complexity of this case is likely to result in the trial proceedings (not including the inexorable appeal to the Supreme Court Chamber) lasting in excess of a year (including the period it will take the Trial Chamber to write a judgment). While not an exercise in historical inquiry, Case 002 is expected to shed light on a number of ambiguities of the Khmer Rouge history.

Statement from the Co-Investigating Judges Related to Case 003 Requests from the International Co-Prosecutor

2011-06-19T00:23:00.000-05:00

In a reasoned decision issued on 7 June 2011, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) have rejected a request for an extension of the deadline for filing Civil Party Applications in Case 003 and three investigative requests filed by the International Co-Prosecutor alone as invalid.

Having examined the applicable legal framework and the Internal Rules governing the ECCC proceedings, the Co-Investigating Judges concluded that the Internal Rules leave no room for (a) solitary action by one Co- Prosecutor, unless either a delegation of power had taken place according to Internal Rule 13 (3), or a Disagreement between the Co- Prosecutors had been recorded pursuant to Rule Internal 71 (1).

As both the National and the International Co-Prosecutor have confirmed that neither a delegation of power had taken place nor a disagreement had been recorded, the Co-Investigating Judges consequently rejected the requests from the International Co-Prosecutor on the basis that they were invalid.

However, the Co-Investigating Judges have on their own motion, pursuant to Internal Rule 39 (4) (b), decided to recognise the validity of any Civil Party Application received within three weeks after the original deadline on 18 May 2011.

Silence of the National Co-Prosecutor and Can One Break That Which Does Not Exist?

2011-06-06T22:40:00.001-05:00

International observers of the dispute over Case 003 (and Case 004 by analogy and extension) might be quick to dismiss the National Co-Prosecutor’s refusal to participate in Cases 003 and 004 and her current silence on the matter as yet another act of subservience of the Cambodian judiciary to the executive. While the Cambodian judiciary is notorious for such subservience and the Cambodian executive is equally notorious for exerting the pressure with great frequency, this situation is more complicated than a mere executive interference into the province of the judiciary.

The first question which needs to be answered is what law governs the ECCC proceedings. The law on the establishment of the ECCC (ECCC Law + ECCC Agreement) states that it is the Cambodian law with 3 exceptions spelled out in the law. The judicial officer-created (with no legal authority to do so) ECCC Internal Rules reverberate this pronouncement, at least in letter. The second question is whether under the Cambodian law, the Department of Public Prosecutions is part of the judiciary. Comparative analyses of civil law jurisdictions show that in most cases departments of public prosecutions are a part of the judiciary. Cambodia was established as a civil law jurisdiction and has not been altered significantly enough since to conclude otherwise. Therefore, theoretically, the Cambodian system should have followed the lead of the rest of the countries the judicial systems of which were established on this basis, with the exception of France. This, however, did not happen. The UN Special Rapporteur on Human Rights notes (2010) the ongoing dispute between the Ministry of Justice and the Supreme Council of the Magistracy. In what is much more than a mere contretemps between the two entities, the Ministry of Justice insists on following the French model which places the Department of Public Prosecutions within the executive; the Supreme Council of the Magistracy counterpoints by arguing that “since the prosecutors are judges and judges are independent under the [Cambodian] Constitution, they [the prosecutors] should come under the control of the Supreme Council of the Magistracy. These two irreconcilable positions are the reason for the stalemate in the enactment of a constitutionally-mandated statute defining the role of the prosecutors. In the absence of a law clarifying the matter, there is no legal basis to argue either way. But, there is a way to argue persuasively (albeit without a legal basis) by examining the 100 years of operation of the French model-based judicial system in Cambodia. If undertaken, the development of this argument will take time and academic effort, whereas in the meantime it is a free for all. The executive happens to be the far stronger part of the “all” and to the victor belong the spoils. For reasons of legitimacy, the executive might argue the Ministry of Justice’s position which is sound, even if without legal grounding. If a subsequent statute places the Department of Public Prosecutions within the executive, the leadership of the executive will be able to legally enjoin the prosecutors, as it is done in a great number of other countries, be they civil or common law. The last question to answer is whether the Cambodian executive has broken the law by directing the National Co-Prosecutor not to participate in Cases 003 and 004. The answer to this is simple: it is impossible to break that which does not exist.

Civil Parties' Regional Forum

2011-06-03T20:42:00.000-05:00

MEDIA ALERT

Fifth Regional Forum for 300 Civil Parties in Case 002

to be Organized in Siem Reap

The Victims Support Section (VSS) of the Extraordinary Chambers in the Courts of Cambodia

(ECCC) organizes its Fifth Regional Forum for 300 Civil Parties in Case 002, from Paillin, Banteay

Meanchey, Kampong Thom, Kampong Cham, Kampong Speu, and Siem Reap Provinces. The Forum

is to be held at

Allson Angkor Paradise Hotel, Siem Reap Town, on Thursday, 19 May 2011 from

7:30 a.m;

(Civil Party’s identity is protected).

The Regional Forum is one of the means through which the VSS implements its project on wider

Victims’Improved Participation in the Proceedings of ECCC 2011 for empowering Civil Parties in

judical proceedings of Case 002. The purpose of the Regional Forum is to promote victims’ articipation by providing a safe venue and opportunity dialogue for CPs from those provinces:

- To meet Civil Party Lawyers to discuss their rights at the trial stage, as well as, to generate ideas

from Civil Parties on collective reparations in order to formulate their civil claim ;

- To meet officials from various offices of the ECCC and civil society representatives in order to

learn about recent progress of ECCC; and

- To meet CPs of Case 001 in order to learn about their experiences for a better involvement in

Case 002.

Regional Civil Party Forums had been successfully organized respective in 2011: Kratie, Kampot,

Svay Rieng, Kampong Chhnang and now in Siem Reap Province. From 2009 to 2011, the VSS had

organized 9 Regional Forums for 2,615 Civil Party applications and Civil Parties, who are from the 24

provinces of Cambodia.

For further information, please contact:

IM Sophea

Outreach Coordinator of VSS/ECCC

Mobile: +855 (0) 77 777 367

Land line:+855(0) 23 219 814 ext. 6602

Email:

im.sophea@eccc.gov.kh

Lars OLSEN

Legal Communications Officer, ECCC

Mobile: +855 (0) 12 488 023

Land line: +855 (0) 23 219 814 ext. 6169

Email:

olsenl@un.org

Cayley Pleads for Victims, Public Trust (Part II)

2011-06-03T20:30:00.002-05:00

Cayley Pleads for Victims, Public Trust (Part I)

2011-06-03T20:27:00.000-05:00

Not An Anomaly

2011-05-30T21:39:00.000-05:00

As the present comings and goings in Case 003 -- and potentially Case 004 -- cannot by any means be described as an anomaly in the Cambodian judicial process, a fair -- and to the best of my knowledge accurate -- treatment of the ordinary Cambodian courts is offered in the following fairly recent title:

Joakim Ojendal (Ed), Mona Lilja (Ed), Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society (Nordic Institute of Asian Studies) (Oct, 2009) available here

http://www.amazon.com/Beyond-Democracy-Cambodia-Reconstruction-Post-Conflict/dp/8776940438

What Would the UN Do?

2011-05-28T21:40:00.000-05:00

At the outset of the dispute over Case 003 – and by extension Case 004 – allegations were made that the ECCC-dedicated personnel of the United Nations Headquarters may have made a deal with the Cambodian government to make Case 002 the last case of the ECCC and put the kaibosh on the rest.

The article below quotes the UN HQ as stating that it had nothing to do with the alleged design (provided there is a design in place). While there appears to be no reason to believe that the UN HQ is not telling the truth, it would be difficult to imagine that the UN HQ would have admitted to a behind-the-scenes deal like this for fear of accusations of interference with the administration of justice (which has all sorts of implications for fair trials and most important for the reputation of the UN as a promoter of the rule of law).

Whatever is the verity of the UN HQ statement, a seasoned observer would not help but notice that administrators have attempted to put this court on a well-defined schedule before (often to the amusement of the substantive people): prior to and at the beginning of the process the administrators authoritatively stated that the process would go on for 3 years and not a day longer. This was declared from the highest rostrums of this tribunal. Look how that worked out with the tribunal being in the 6^th year of its operation (many have tried to play a numbers game here but there isn’t one to be played – the ECCC started spending money in February 2006 and there just isn’t two ways about it) and counting.

On the other hand, there are two issues the UN needs to reckon with: (1) the UN no longer has sovereignty over Cambodia (that ended in 1993) and the Cambodian government clearly does not want Cases 003 and 004 to go ahead (the Prime Minister made a statement to this effect which to my knowledge was never retracted) and (3) the judicial independence regarding the length of international proceedings isn’t the same thing as judicial independence regarding domestic proceedings (there is a tremendous cost to the international ones, particularly by comparison: an ordinary Cambodian judge makes $500 a month and his/her ECCC national counterpart pulls in $5,000 +; plus, Cambodia has no government-funded legal aid system which means the government pays zero for lawyers in ordinary proceedings like the ECCC has expended millions on the same).

Now, considering the above, what is the UN HQ to do to extricate itself from this conundrum in the environment where the Cambodian government wants these proceedings closed, the donors are reluctant to continue footing the spiraling bill of the Court and “the most responsible” clause of the personal jurisdiction of the Court being elastic enough to allow prosecutions till the end of the natural life of the persons involved in Democratic Kampuchea? It is to make a deal and shut down the process after the largest case (Case 002) is over. Can the existence of this deal – or understanding -- be revealed to the public? No, for obvious reasons as none of the above will satisfy the ardent observers of the Court. The UN HQ did the only thing it could do: it made a statement disassociating itself from the dispute over Cases 003 and 004 and shifted the heat back on to the Co-Investigating Judges. The UN can’t legally shut down the proceedings or make a legal deal to this effect but the CIJs can.

UN Denies Interfering in Cambodian War Crimes Tribunal Cases

2011-05-27T23:56:00.000-05:00

May 27, 2011, 7:44 GMT

Phnom Penh - The United Nations Friday rejected allegations it had interfered with investigations at the UN-backed war crimes tribunal in Cambodia or put any pressure on the investigating judges.

The allegations come amid fears the tribunal is looking to shut down two cases - known as Case Three and Case Four - in the face of government opposition. Prime Minister Hun Sen has long said he would not permit either case to go to trial, citing a risk of civil war.

Late last month the investigating judges closed Case Three, but within days international prosecutor Andrew Cayley criticized the investigation as deficient.

Cayley said the judges had failed even to question the suspects in Case Three, did not investigate numerous crime sites and did not interview a number of witnesses.

On Wednesday the president of the Cambodian Center of Human Rights, Ou Virak, questioned the work of the investigating judges, claiming the actions of the UN's judge, Siegfried Blunk, 'raise the question of whether the United Nations has conceded to the demands of the (Cambodian government) and is now acting to prevent any further cases from going to trial.'

In emailed comments Friday, UN spokesman Martin Nesirky said that was not the case.

'Neither the secretary-general nor the United Nations Secretariat plays any role in the independent judicial process before the ECCC [Extraordinary Chambers in the Courts of Cambodia, the tribunal's official name],' Nesirky said.

'And I can confirm, in response to your question, that no instructions have been issued by any United Nations officials to any judge or other official at the (tribunal) to prevent Cases 003 and 004 moving forward as part of this independent judicial process,' he said.

Cases Three and Four involve five former Khmer Rouge who are thought responsible for tens of thousands of deaths during the movement's rule of Cambodia between 1975 and 1979.

The court's second case, against four senior surviving leaders of the movement, is scheduled to begin June 27.

In its first case, the tribunal last year convicted the Khmer Rouge's head of security, Comrade Duch, of war crimes and crimes against humanity.

Case Four is still with the investigating judges' office, which is led jointly by Blunk and Cambodian judge You Bunleng.

More than 2 million people are thought to have died during the Khmer Rouge's rule.

Game of Chicken Update: the Laurels of Victory

2011-05-27T23:29:00.000-05:00

About a week ago the CIJs ordered the International Co-Prosecutor to retract his statement regarding the additional work the International CP felt the CIJs needed to do in Case 003. The CIJs gave the International CP 3 days to retract his statement. No retraction followed. It is clear that the International CP is standing his ground (whatever the legal basis and ethical bases for this ground might be). There are only two ways for the game of chicken to end: either one of the parties swerves or a head-on collision (which more often than not has disastereous consequences) occurs. As the International CP presses on unflinchingly, an unsaid deadline gets imposed on the CIJs to either get off the road (and give the International CP the laurels of victory) or let us know they are still on the road.

Are the CIJs Feeling Beleaguered?

2011-05-27T23:09:00.000-05:00

The CIJs recently lashed out at a magazine article critical of their work and to a certain degree of the Court as a whole.

Naturally, what begs a question is what the judicial officers of the ECCC are doing counter-attacking the media. Besides it being undignified and unworthy of the office they hold, it is extremely unlikely that their job descriptions contain media interaction. Their job descriptions is what we, the taxpayers of the countries which fund the UN and this court, are paying them for; if media interaction and participation in the public debate of their performance was intended to be part of their mandate, it would have been incorporated in their respective terms of references.

Another question this statement begs is whether it was used as an opportunity to retaliate against the Nazi cartoons (discussed earlier on this forum) which were off-color but which should not have merited the attention and official response of persons whom we expect to be esteemed judicial officers.

Lastly, the CIJs' insecurity about their decision to terminate Case 003 is understandable: they can't tell us a good story about why it happened; while it is well-appreciated that the CIJs are not required by law to explain their decisions to terminate cases to the public, they might be feeling -- and many of us do too -- that they are duty-bound to do so.

As a postscript to this, the International Justice Tribune's article revealed that all persons interviewed for it knew the identities of the suspects in Cases 003 and 004 (and knew them long enough to have been able to make their personal conclusions about these persons' suitability for prosecution); hence is the question for the International Co-Prosecutor and the CIJs: don't the Internal Rules say something about the secrecy of investigations? what happened and why doesn't anyone seem to be concerned about this?

International Justice Tribune's Cambodia's Troubled Tribunal

2011-05-27T22:15:00.000-05:00

Cambodia’s troubled tribunal has suffered further setbacks in recent weeks as a series of public disputes pitted officials against one another. The spats escalated quickly and dramatically with co-prosecutors issuing opposing statements and investigative judges reportedly threatening the international co-prosecutor with contempt of court.

By Jared Ferrie, Phnom Penh

The disagreements involve a prospective case that the government strongly opposes even though rosecutors say they have sufficient evidence to charge a further five former Khmer Rouge officials. Critics accuse the court’s investigative section of bowing to political pressure by failing to carry out proper investigations, thereby increasing the likelihood that the case will be dropped.

Theary Seng, an activist and founder of the Centre for Justice and Reconciliation, said infighting and political interference could prevent the court from fulfilling its mandate. She called for intervention by international donors and UN headquarters to “salvage” the UN-backed court.

“At this pace, the tribunal is heading for an irreparable crash,” said Seng, whose parents were killed by the Khmer Rouge.

Ou Virak, president of the Cambodian Centre for Human Rights (CCHR), said the tribunal is in danger of collapse even before trying four top Khmer Rouge leaders whose case (002) is scheduled to begin June 27.
“I think the court may struggle even to complete Case 002,” he said. “Even if it does, the nature of the ‘justice’ it seeks to dispense has been entirely and irreparably undermined.”

The current crisis began with a seemingly innocuous one-sentence statement issued April 29 by the co-investigating judges, which simply said they had “concluded the investigations in Case 003”. But the timing of the statement – released on a Friday evening when journalists are rushing to meet deadlines – along with its lack of detail raised alarm bells among observers.

High-ranking Cambodian government officials have repeatedly stated their opposition to expanding the scope of prosecution beyond the four persons already facing charges and one who has been convicted. Prime Minister Hun Sen even told visiting UN Secretary General Ban Ki-moon that he would not allow more cases to go forward.

Critics noted that investigators did not interview the suspects during 20 months of investigation into Case 003, involving several unknown suspects. Nor did they visit alleged crime sites. Some interpreted these facts, along with the secrecy surrounding the case, as signs of an internal decision to scuttle the case.

On May 9, International Co-prosecutor Andrew Cayley issued a detailed statement containing previously unreleased information, saying he was requesting further investigations, including interviews with witnesses and suspects, as well as visits to crime scenes that may contain mass graves. He reiterated his belief that the five suspects fall within the court’s jurisdiction.

Cayley’s statement was followed the next day by one issued by his national counterpart, Chea Leang. She echoed the government’s position that the court should cease its work at the conclusion of case 002. She said the suspects in case 003 could not be considered senior leaders or those most responsible for crimes committed under the Khmer Rouge.

Many experts disagreed. The Open Society Justice Initiative called for further investigations, and noted: “Case 003 is believed to involve Sou Met, the former commander of the Khmer Rouge air force, and Meas Mut, the commander of the navy.”

Seng said it was “laughable” not to consider such high-ranking Khmer Rouge officers to be senior leaders. Ou, of CCHR, also said they should be considered as such.

“I think they were important figures about which a good deal of evidence has been assembled,” said David Chandler, a leading Khmer Rouge historian.

In the face of widespread support for Cayley, International Co-investigating Judge Siegfried Blunk lashed out at the international co-prosecutor. On May 13, The Phnom Penh Post quoted a court source claiming that Blunk was considering initiating contempt of court proceedings against Cayley.

Blunk has not denied that claim. Instead, his office announced on May 18 that it had issued an order for Cayley to retract parts of his statement within three working days.

At the moment, the court’s future hangs in the balance, which as Chandler pointed out, “is a state of affairs pleasing to those in power in Phnom Penh.”

Co-Investigating Judges Inveigh Against a Magazine Article

2011-05-27T22:00:00.000-05:00

STATEMENT FROM THE CO-INVESTIGATING JUDGES

In view of misrepresentations in the article “Cambodia’s troubled tribunal” published in the 25

May 2011 edition by the International Justice Tribune, the Co-Investigating Judges of the

ECCC point out the following:

1. Regarding the allegation “investigating judges (are) threatening the international co-prosecutor with contempt of court”:

The Co-Investigating Judges never threatened this, nor did they ever let it be known that they were considering this; rather this is a malicious rumour intended to disrupt the harmony within the Court.

2. Regarding the reported statement “at this pace, the tribunal is heading for an irreparable crash”:

As the Supreme Court has held hearings on appeals in Case 001, and as the Trial Chamber scheduledinitial hearings in Case 002 for 27-30 June 2011, furthermore as the Pre Trial Chamber is successfully dealing with the caseload of more than 1,700 individual appeals, and as the Office of Co-Investigating Judges and the Office of the Co-Prosecutors are working normally (despite certain disagreements), the assertion that the tribunal is heading for a crash is baseless.

3. The reported statements “the tribunal is in danger of collapse” and “the court’s future hangs in the balance” are therefore nonsensical and do not correspond with reality.

The Co-Investigating Judges have worked independently from outside interference, will continue to resist all such attempts, and are resolved to defend their independence against outside interference,

wherever it may come from.

Let the Game of Chicken Begin

2011-05-23T18:30:00.000-05:00

As the Co-Investigating Judges ordered (by placing 'ORDER' in upper caps for pith) the International Co-Prosecutor to retract his statement regarding Case 003 within 3 working days of the issuance of the CIJs' response to this statement; no matter how the day count is done the deadline for the International CP to comply is today, Tuesday, May 24, 2011. Will the International CP back down or will the standoff continue? If it does continue and considered the confrontation between the International CP and the CIJs has entered uncharted waters, what punitive action can the CIJs take if the International CP refuses to comply?

In the frenzy of this confrontation, I believe everyone has all but forgotten about the other half of the ECCC prosecution team, the National CP. As the National CP clearly stated from the outset that she would not participate in the initiation of Cases 003 and 004 and provided one or both of these cases are given a go-ahead by the CIJs (it is not looking this way now but anything is possible), what will the role of the National CP be in their regard? Will she sit these ones out?

Statement of the International Co-Prosecutor regarding Case File 003

2011-05-23T18:12:00.000-05:00

The International Co-Prosecutor, Andrew Cayley, makes this public statement pursuant to ECCC Internal Rule 54, to ensure that the public is duly informed about ongoing ECCC proceedings, and in particular with regard to the International Co-Prosecutor’s Introductory Submission in Case File 003. In providing this information the interests of victims and witnesses, the rights of suspects, and the requirements of the investigation have been taken into account, as required under the Rules.

Following directions given by the Pre-Trial Chamber, on 7 September 2009, the International Co-Prosecutor submitted to the Co-Investigating Judges two Introductory Submissions opening judicial investigations into various crimes in Cases 003 and 004. These submissions named a total of five (5) suspects who the Co-Prosecutor believes are responsible for the alleged crimes and fall within the jurisdiction of the ECCC. Under the ECCC Internal Rules, the Co-Investigating Judges are required to investigate the criminal allegations contained in these submissions.

The Case 003 Introductory Submission addresses alleged crimes of murder, extermination, torture, unlawful imprisonment, enslavement, persecution and other inhumane acts. If proven, these acts would constitute crimes against humanity, grave breaches of the Geneva Conventions and violations of the 1956 Cambodian Penal Code.

Crimes required to be judicially investigated as part of Case 003 took place at several crime sites and criminal episodes covered by Case 002, including the S-21 Security Centre, the Kampong Chhnang Airport Construction Site, purges of the East, Central and New North Zones, and incursions into Vietnam, as well as the following new crime sites and criminal episodes:

(1) S-22 Security Centre in the Phnom Penh area;

(2) Wat Eng Tea Nhien Security Centre in Kampong Som Province;

(3) Stung Hav Rock Quarry forced labour site in Kampong Som Province;

(4) Capture of foreign nationals off the coast of Cambodia and their unlawful imprisonment, transfer to S-21 or murder; and

(5) Security centres operated in Rattanakiri Province.

On 29 April 2011, the Office of the Co-Prosecutors received notification that the Co-Investigating Judges considered the investigation in Case 003 to be concluded. Having carefully reviewed the Case File, the International Co-Prosecutor intends to request further investigative actions regarding the alleged crimes, within the 15 day period specified in ECCC Internal Rule 66 (1). Among other things, the International Co-Prosecutor will request the Co-Investigating Judges to:

1. Summon and question the suspects named in the Case File 003 Introductory Submission, and notify them that they are under investigation;

2. Interview additional individuals who have been identified as potential witnesses thus far;

3. Interview or re-interview witnesses identified in Case File 002, focusing on the specific allegations contained in the Case File 003 Introductory Submission;

4. Examine further the crime sites (including by searching for mass grave locations);

5. Place additional evidence on the Case File, including by transferring further evidence from Case File 002 to Case File 003; and

6. Further investigate the involvement of the Case 003 suspects in the crimes, including the transfer of prisoners under their control to S-21, their receipt of “confessions” taken from prisoners murdered at S-21, and their involvement in further arrests.

The International Co-Prosecutor will request these actions as he is of the view that the crimes alleged in the Introductory Submission have not been fully investigated. He has a legal obligation under the Internal Rules and the Law of the ECCC to identify and request all reasonable investigative actions which should be taken by the Co-Investigating Judges before a decision is made as to the whether or not any individuals should be indicted and sent for trial.

Notification to Potential Civil Parties in Case File 003

Pursuant to Internal Rule 23bis, individuals who wish to apply to become Civil Parties in Case File 003 must submit applications no later than 15 days from the date on which the Co-Investigating Judges notified the Co-Prosecutors that they consider the investigation to be concluded. Applying the relevant legal provisions, the International Co-Prosecutor is of the view that the deadline for Civil Party applications now falls on Wednesday, 18 May 2011 at 4 pm.

Considering that the crime sites under investigation have not previously been made public, the International Co-Prosecutor will request the Co-Investigating Judges to extend the deadline for a further six weeks in order to allow reasonable time for victims to submit Civil Party applications. However, at present, the only guarantee that a Civil Party application will be considered by the Co-Investigating Judges is by having it filed by 18 May 2011 at 4.00pm. In the event that the Co-Investigating Judges extend the deadline the public will be notified.

Under Internal Rule 23bis (1) and Article 3.2 of the Practice Direction on Victim Participation, a victim is defined as a natural person or legal entity that has suffered physical, material or psychological injury as a direct consequence of at least one of the alleged crimes.

Victims wishing to apply should contact the ECCC Victims Support Section, fill out and file a Victim Information Form this week. The office is open Monday to Friday except on public holidays. The address is:

Victims Support Section, Extraordinary Chambers in the Courts of Cambodia

National Road 4

Chaom Chau, Dangkao

PO Box 71

Phnom Penh, Cambodia

Co-Investigating Judges' Response to the International Co-Prosecutor's Public Statement Regarding Case 003

2011-05-23T17:59:00.000-05:00

Kingdom of Cambodia

Nation Religion King

Extraordinary Chambers in the Courts of Cambodia

Chambres extraordinaires au sein des Tribunaux cambodgiens

Royaume du Cambodge

Nation Religion Roi

Case File No: 003/07-09-2009-ECCC-OCIJ

Office of the Co-Investigating Judges

Bureau des co-juges d'instruction

Before: Judge YOU Bunleng

Judge Siegfried BLUNK

Date: 18 May 2011

Original: English

Classification: Public

Order on International Co-Prosecutor's Public Statement Regarding

Case File 003

Co-Prosecutors

CHEA Leang

Andrew CAYLEY

Extraordinary Chambers in the Courts of Cambodia, National Road 4, Choam Chao, Dangkao Phnom Penh

Mail Po Box 71, Phnom Penh Tel:+855(0)23 218914 Fax: +855(0) 23218941.

003/07-09-2009-ECCC-OCIJ Ime / No: 014

We, YOU Bunleng and Siegfried BLUNK, Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (the "ECCC");

Noting the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, dated 27 October 2004 (the "ECCC Law");

Noting Rules 21, 54, 55, 56 and 66 of the ECCC Rules (Rev.7) (the "Rules");

Noting the judicial investigation being conducted pursuant to the CoProsecutors' Second Introductory Submission;

Noting our notice of conclusion of judicial investigation dated 29 April 2011

Noting the Press Release, Statement by the International Co-Prosecutor Regarding Case File 003 dated 03rd May 2011 (the "Public Statement") on the ECCC website

I - PROCEDURAL HISTORY

1. The Public Statement contained among other things (A) information about crimes that according to the opinion of the International Co-Prosecutor required to be judicially investigated, thereby mentioning in detail as part of Case 003 alleged crimes, crime bases and criminal scenarios; (8) the contents of his intended request pursuant to Rule 66.1 for further investigative actions.

2. Regarding item (A), the International Co-Prosecutor stated that "crimes required to be judicially investigated as part of Case 003 took place at several crime sites and criminal episodes covered by Case 002, including the S-21 Security Centre, Kampong Chhang Airport Construction Site, purges of the East, Central and New North Zones, and incursions into Vietnam, as well as the following new crime sites and criminal episodes:

(1) S-22 Security Centre in the Phnom Penh area; (2) Wat Eng Tea Ngnien Security Centre in Kampong Som Province; (3) Stung Hav Rock Quarry forced labour site in Kampong Som Province; (4) Capture of foreign nationals off the coast of Cambodia and their unlawful imprisonment transfer to S-21 or murder; and (5) Security Centres operated in Rattanakiri Province."

3. Regarding item (8), the International Co-Prosecutor made public his intended request for investigative actions pursuant to Rule 66.1 by stating that "Having carefully reviewed the Case File, the International Co-Prosecutor intends to request further investigative actions regarding the alleged crimes, within the 15 day period specified in ECCC Internal Rule 66 (1). Among other things, the International Co-Prosecutor will request the Co-Investigating Judges to:

1. Summon and question the suspects named in the Case File 003 Introductory Submission, and notify them that they are under investigation;

2. Interview additional individuals who have been identified as potential witnesses thus far;

3. Interview or re-interview witnesses identified in Case File 002, focusing on the specific allegations contained in the Case File 003 Introductory Submission;

3. Examine further the crime sites (including by searching for mass grave locations);

4. Place additional evidence on the Case File, including by transferring further evidence from Case File 002 to Case File 003; and

5. Further investigate the involvement of the Case 003 suspects in the crimes, including the transfer of prisoners under their control to S-21, their receipt of "confessions" taken from prisoners murdered at S-21, and their involvement in further arrests. "

II - REASONS FOR THE DECISION

Item A of the Public Statement

4. Rule 54 provides: "Introductory, Supplementary and Final Submissions filed by the Co-Prosecutors shall be confidential documents. However, mindful of the need to ensure that the public is duly informed of ongoing ECCC proceedings, the Co-Prosecutors may provide the public with an objective summary of the information contained in such submissions, taking into account the rights of the defence and the interests of Victims, witnesses and any other persons mentioned therein, and the requirements

of the investigation". Pursuant to this Rule, the International Co-Prosecutor was only entitled to

give a summary of his Case 003 Submission, and not to express publicly his opinion about "crimes required to be judicially investigated", which by definition (Rule 55.1) are investigations by the Co-Investigating Judges.

5. Rule 54 further provides "In addition, the Co-Prosecutors may jointly, either personally or through the Public Affairs Section, correct any false or misleading information, provided that the case is still under preliminary investigation".

However, the preliminary investigation (Rule 50) had ended with the sending of the Introductory Submission to the Co-Investigating Judges pursuant to Rule 53.1 on 7 September 2009.

6. In sum, the International Co~Prosecutor had no legal basis for issuing Item A of the Public Statement.

Item B of the Public Statement.

7. Rule 56 states: "In order to preserve the rights and interest of the parties, judicial investigation shall not be conducted in public. All persons participating in the judicial investigation shall maintain confidentiality". However, the International Co-Prosecutor by informing the public in advance and in detail about what according to Rule 66.1 "he will request the Co-Investigating Judges to" do, has violated the Rule of Confidentiality.

8. Because of the lack of legality for Item (A), and the breach of the confidentiality by Item (B) the International Co-Prosecutor has to publish a retraction of the Public Statement, which is to be effected in the same form as the issuance of the statement, and which, to restore public confidence in the legality and confidentiality of the investigations, has to be accomplished in a short period of time.

111- DECISION

9. For these reasons, the Co-Investigating Judges ORDER the International Co-Prosecutor to publish a retraction of items (A) and (B) of the Public Statement on the ECCC website within three (3) working days from the date of filing.

Dr. Siegfried BLUNK

CIJs Blunk and You in Nazi Uniforms and Other Responses to the CIJs Purported Decision to Discontinue with Cases 003 and 004

2011-05-08T00:00:00.000-05:00

Following the Co-Investigating Judges’ (CIJs) statement on April 29, 2011 that investigations in Case 003 and 004 were concluded it was presumed that the CIJs found no merit in the charges laid by the prosecution a year and a half ago. Under normal circumstances this situation would have been business as usual and would not have riled up as many observers as it did. However, these were not the normal circumstances. To set the stage for what happened it will help to recall Prime Minister Hun Sen’s statement about a year and a half ago that, in his opinion (which in the context of the Cambodian de facto autocracy is the opinion of the State), the prosecution of the initial 5 suspects in Cases 001 and 002 was sufficient to accomplish what the ECCC set out to do. As the Cambodian Prime Minister’s opinions are not mere statements of private nature but a matter of government policy, the National Co-Prosecutor of the ECCC immediately bowed out of Case 003 and 004. But not the International Co-Prosecutor who put together Introductory Submissions and filed them unilaterally. After a year and a half of PTC and CIJ posturing, the CIJs, reportedly (it is impossible to determine what specifically they meant to say from their short public statement), found no merit in pursuing Cases 003 and 004.

I have no reason to believe that the Cambodian populace cared one way or the other about the CIJs’ statement but long-term observers of the ECCC with a stake in the continued proceedings had a violent reaction to it.

One such observer, James Goldston of a New York-based NGO, the Open Society Justice Initiative (OSJI), whose organization has attempted to influence the ECCC process since before the establishment of the ECCC called the statement and the overall position of the Cambodian government regarding Cases 003 and 004 “the fix”. Mr. Goldston’s attempt to portray this policy as sinister is somewhat misplaced and his ‘righteous ire’ is out of sync which his organization’s previously taken positions. He argues that it will “implicate the court in a political decision to halt proceedings” if the CIJs find that the defendants in Cases 003 and 004 do not meet the standard of ‘most responsible’ of the law which established the ECCC. It is true that the vagueness of the ‘most responsible’ category of the ECCC’s personal jurisdiction might be used by those who want to discontinue with 003 and 004. But, where was Mr. Goldston and his organization when the Court stretched the definition of ‘most responsible’ to prosecute Duch (whose counsel kept asking the Trial Chamber throughout the trial why his client was singled out for prosecution)? Or was this simply a stretching of the legal categories OSJI found acceptable and Mr. Goldston’s current opprobrium is not a matter of legal principle but merely that of his disagreement with what appears to be the Cambodian government’s prosecution policy? Mr. Goldston equally does not tell us specifically what in the design of the Court warrants 003 and 004. Nor does he mention that if prosecuted, 003 and 004 will open the door to 005 and 006 and so on and so forth until everyone who had some rank of authority under the Khmer Rouge is prosecuted. The extent to which prosecutors are independent from the political branch’s prosecution policy under Cambodian law (we all know what happens in practice) remains an interesting question, however, and as such should be studied.

While Mr. Goldston’s opinion piece is written in decorous professional language, this cannot be said about the spitfire style of journalism of KI Media and Theary Seng (who re-printed KI Media’s materials in a number of cases). The journalists of KI Media decided to express their ire at the CIJs’ statement by attacking the International CIJ’s, Mr. Siegfried Blunk, nationality. It is not difficult to imagine how any mention of Germany at crimes against humanity proceedings conjures up the images of German atrocities during WW2. It is, however, a low blow to be opposing a jurist’s position by likening him to the perpetrators of the worst and most institutionalized crimes in recorded history, even if he happens to be one of their descendants. While Germany as a nation deserves every bit of this notoriety, an individual jurist acting in his official capacity does not (http://www.thearyseng.com/columnist/32-theary-sengs-blog/294-legal-farce-at-eccc-toward-dismissing-case-003-ocij-press-release). While the First Amendment (the freedom of speech clause) in the US (what the Cambodian Constitution’s right to freedom of expression protects continues to remain a mystery) protects this type of speech, this only means that the US government is unable to limit this speech in any way. This does not mean that as a society we need to endorse or put up with this. Regardless of how anyone might personally feel about Germany or the Germans and regardless of the pith they believe they are going for by putting Mr. Blunk in a Nazi uniform in a cartoon (perhaps, if they knew a bit more of the history of the Third Reich, they would have expanded those to focus on Mr. Blunk’s place of origin and gotten creative with the similes there), the public debate does not stand to benefit from these freedom of speech-protected shenanigans. The public debate on this issue would, however, benefit from competently made statements of opposition. The vitriol promoted by KI Media and Theary Seng does nothing more than bring down this debate to the level of puerility.

The seriousness of the issue of the discontinuation with Cases 003 and 004 is that of significance, however. It raises important questions of the extent of permissible entanglement between the prosecutors and the politicians in Cambodia and the extent to which the phenomenon of ‘a prosecution policy’ is legal under Cambodian law (no one seemed to have had a problem with it when the Cambodian government adopted a prosecution policy on human trafficking offenders following a strong condemnation of the US Department of State). It also raises a question of whether those Cambodians who do not stand to benefit from the ECCC financially are interested in seeing the Chambers prosecute more offenders. It also raises a perennial question of the timeframe for the completion of this process. Lastly, it should put the quality of legislative drafting which went into the law which established the ECCC into question: the present situation is not something no reasonable legal expert could have predicted (in fact, this issue was raised prior to the inception of the ECCC) and as such should have been anticipated and provided for by the international drafters (it was not; which is part of the reason we are here today).

No Justice in the Killing Fields

2011-05-07T21:14:00.001-05:00

No Justice in the Killing Fields

Opinion by OSJI executive director James Goldston

26 April 2011

International Herald Tribune / New York Times

NEW YORK — More than 30 years after the murderous Khmer Rouge were driven from power in Cambodia, the U.N.-backed effort to bring justice to the victims of the killing fields stands on the brink of ignominious failure due to political interference from the Cambodian government and the indifference of the international community.

A hybrid court, the Extraordinary Chambers in the Courts of Cambodia, has spent over $200 million since it was set up in 2003 with both international and local judges and prosecutors. It has tried only one person: Kang Kech Eav, or Duch, the head of the notorious Tuol Sleng prison complex, who is appealing his conviction for crimes against humanity, murder and torture.

Now Cambodia’s Prime Minister Hun Sen has taken an axe to further proceedings. In power for over 25 years, Hun Sen has repeatedly and publicly declared that the court should try only one more case (case “002” in court parlance), against four detained senior ex-Khmer Rouge leaders, all of whom are in their late 70s or 80s.

As for five additional unnamed suspects, whom the court’s pre-trial chamber approved for investigation, Hun Sen bluntly informed U.N. Secretary General Ban Ki-moon late last year that they would not be “allowed” to go forward.

The reason offered is the supposed threat any additional trial would pose to peace in Cambodia. Others suspect that the prime minister is simply enforcing a pact he long ago cut within his ruling Cambodian People’s Party that none of its ex-Khmer Rouge members would ever be tried or otherwise exposed for crimes they committed, no matter how serious.

Other actors have their own reasons for acquiescing in this. Donors want to save money and are anxious for the court to wind up operations.

Having invested more than a decade in negotiations to launch the court and keep it alive, the United Nations finds it hard to walk away now. It is institutionally committed to the court, even though in 2002, then-secretary general Kofi Annan recommended against U.N. involvement in a tribunal which he rightly believed lacked adequate protections against precisely the kind of political interference that is blocking the additional cases.

Mr. Annan was compelled by pressure from the United States, Australia, France and Japan to accept the present flawed structure (the International Criminal Court is limited to prosecuting crimes that were committed after it was established in 2002).

Court officials are thus caught in a trap. The fearful Cambodian staff must respond to political pressures. Even international staffers feel constrained to focus their efforts on making the most of case 002, given the unlikelihood of any further trials.

As a result, the right course of action — allowing all cases currently before the judges to proceed through to completion — now seems unattainable. Advocates of impartial justice are faced, as they have been throughout the morally tainted history of this tribunal, with a choice of lesser evils.

One option under discussion would involve deception. According to various sources, court officials might “gracefully” dispose of the additional five suspects, for example, by presumptively finding that none of them are among those “most responsible” for Khmer Rouge crimes, as the governing statute requires. Such a move would implicate the court in a political decision to halt proceedings.

Unfortunately, this is where things seem to be headed. By their own awkward admission, the Cambodian and international judges responsible for investigating the additional cases have restricted their staff to desk review; no field investigation is underway. This month the deputy national co-prosecutor reaffirmed there would be no further prosecutions. The fix, it seems, is in.

A preferable, if still distasteful, alternative, would be to honestly horse-trade abandonment of the additional cases in exchange for a guarantee of total government cooperation, and full donor resources, for case 002.

The United Nations and the Cambodian authorities should openly declare that the hybrid court will cease operations after conclusion of case 002 due to government objections and the lack of continued funding. As part of the squalid bargain, the government should publicly commit itself to lifting its illegal veto of the pending witness summonses and comply swiftly with any other court order or request.

Even with these conditions fulfilled, victims of the Khmer Rouge will be cheated of the more comprehensive accountability further trials would have produced. And every Cambodian will know that all the will the international community could muster was not sufficient to create a truly independent court. It’s time for the U.N. to end the charade. James A. Goldston is the executive director of the Open Society Justice Initiative. In 2007–2008 he was coordinator of prosecutions at the International Criminal Court.

Cambodia Daily on Cases 003 and 004 (Part 2)

2011-05-06T23:34:00.000-05:00

Cambodia Daily on Cases 003 and 004

2011-05-06T23:30:00.000-05:00

Reparations Arguments Gone Awry

2011-04-10T19:55:00.002-05:00

At the appeal hearing of Duch, one of the Civil Parties asked the Supreme Court Chamber (SCC) to change the content of damages ordered by the Trial Chamber (TC) to include the following: (1) to order the convicted person to write two open letters to the Royal Government of Cambodia (RGC), one requesting an apology for the atrocities committed between 1975-79 as Democratic Kampuchea’s successor government and the other requesting that 1/3 of the admission fees collected at the Toul Sleng Museum be diverted to fund the publication of Civil Party materials presented to this court; (2) to order the convicted person to pay for the following: (i) two memorials (at Toul Sleng and Cheoung Ek); (ii) a stupa (at Preh Sar); (iii) visit to these three memorials for the Civil Parties three times a year for a period of four days (presumably until the convicted person’s death); (3) to petition the RGC to have public sites (such as schools, hospitals, streets, etc) named to commemorate the slain relatives of the Civil Parties.

Considering that the mere fact that the Internal Rules (IRs) of the ECCC specifically forbade Civil Parties from seeking monetary compensation, these Civil Parties had to do something within what they felt was not prohibited. The Civil Parties’ position was exacerbated by the fact that the convicted person was indigent and unlike some of his former superiors in Case 002 literally owned nothing besides the clothes on his back (even those are presently supplied by the Court, I believe). The Civil Party counsel felt an obligation towards their clients to ‘make him pay, one way or the other’. Desperation sometimes creates genius but most of the time it is responsible for really bad ideas. The Civil Parties’ above statement belongs with the latter. Let’s take a closer look at what the Civil Parties have asked the Court to order.

(1) Order the convicted person to write a letter to the RGC requesting that the RGC apologize for the crimes of Democratic Kampuchea as the latter’s successor government. Politically this is so untenable, preposterous and unrealistic that it merits no further discussion. Legally – and courts, at least in theory, are supposed to be about law, not about politics – it is a curious request: essentially, the Civil Parties are asking the SCC to compel an entity which is not a party to these proceedings and of whom the convicted person is not an employee (nor was he an employee at the time of the commission of the crimes for which TC found him liable) to apologize for the acts for which the Court has found the convicted person liable. How does this liability attach to the non-party (i.e. RGC)? It does not. Now, in 1988, the US government apologized to the Japanese Americans for the WWII internment and issued monetary reparations. This was a matter of government policy, not a result of criminal proceedings to which the US government was not a party. There is a difference there.

(2) 1/3 of the fees collected at the Toul Sleng Museum must be diverted to fund the publication of Civil Party materials presented to this court. Why would a separate effort to this effect be necessary? Haven’t these documents been published by the ECCC and aren’t they available on the Court’s website (the argument of most Cambodians having no access to the Internet is untenable; it costs anywhere between c20 and c80 and people who want to access it will and those who don’t won’t; hard copy publication is no cure for illiteracy; access to information means making information publicly available, not bringing it into people’s homes)?

(3) Order the convicted person to pay for public projects. The convicted person is a bad guy but he is not a rich bad guy. The convicted person is poor. He has nothing. How do the Civil Parties propose he overcome this to pay reparations? Counsel Silke Studzinsky averred that the convicted person will be encouraged to “find the funds” if the Court permitted the application of the portion of the Cambodian Criminal Procedure Code (CPC) which states that the damages awarded are not extinguished by the convicted person’s service of the sentence of imprisonment (the released convicted person can be re-arrested and re-imprisoned for his/her ability to pay the court-ordered damages). Why raise this issue now? Let’s see if the convicted person lives to be 100 years old or gets paroled before this becomes an issue. Second, what type of fundraising ability do the Civil Parties believe the convicted person has? What specifically can he do? How exactly does Counsel Studzinsky propose he fundraise for the proposed public projects? Internet in his cell? Temporary post-conviction release for fundraising purposes (in a country where local NGOs refuse to fundraise because of the well-entrenched local attitude that NGOs must be funded by Western donors)? Home (prison)-based employment? The Civil Parties added an interesting dimension to this by requesting that there be an international bid for all the memorials? Why does it need to be international (Cambodians do not seem to have a problem building stupas on their own, nor have they in the past)? Is it because the convicted person already has no money to afford the comparatively low fees of Cambodian architects that a possibility of highly paid Western architects needs to be created? Who is going to administer this highly complicated process? Do the Civil Parties suggest that the convicted person start an NGO to this effect and run it from his cell?

(4) Petition the RGC to have public sites (such as schools, hospitals, streets, etc) re-named to commemorate the slain relatives of the Civil Parties. If the SCC were to order this, this would be putting the convicted person in a situation of a murderer asking the government to name public sites after his victims. There are two general problems with this: (1) why would the government listen? (2) why do all victims deserve to have this type of commemoration (normally, public sites are named after persons who distinguished themselves in some way and towards whom there is national pride (or at least the government is trying to cultivate that pride); being murdered even under the most tragic of circumstances is not routinely perceived as invoking national pride; empathy, pity, compassion but not pride. Legally, what will extinguish this obligation, if ordered? Does one letter penned by the convicted person and no reply from the RGC extinguish it? Does the obligation include a success component? What would it be? A reply? What if it is a negative reply? Does the convicted person have to continue writing until the public sites demanded by the Civil Parties are built and re-named to their satisfaction or the convicted person dies, whichever happens first? Did the Civil Party counsel give any thought as to how this would actually work? The sign of hope that sanity might prevail was given from the bench by Judge Klonowiecka-Milart who questioned the practicality of the Civil Parties’ request of an order to compel the convicted person to petition the RGC on a matter of public administration (to which Counsel Studzinsky had no answer with a tenable solution).

While Civil Parties counsel’s zealous approach to the representation of their clients is highly laudable, their capacity to put forward tenable reparations arguments is highly questionable.

Law Review 3

2011-03-31T18:46:00.002-05:00

Stan Starygin, Was There Good Reason to Order Pre-Trial Detention of the ECCC defendants: ECCC in Pre-Trial Action, Human Rights Brief, Apr, 2011 at http://hrbrief.org/2011/02/newedition18-2/
(the pdf at the bottom of the page is not the current issue but an earlier one; as such it does not include this article).

INTRODUCTION

To date, the Extraordinary Chambers in the Courts of Cambodia (ECCC) have denied all motions for pre-trial release. On July 31, 2007 the reputed commandant of the central security prison (S-21) of Democratic Kampuchea (popularly known as the “Khmer Rouge regime”), Kaing Guek Iev, was transferred into ECCC custody from the military prison of Phnom Penh where he had been held without trial for eight years prior on orders from the Military Tribunal of the Kingdom of Cambodia (Military Tribunal). The Co-Investigating Judges (CIJs) promptly ordered Kaing’s pre-trial detention. On December 3, 2007 the Pre-Trial Chamber (PTC) denied Kaing’s appeal.

Noun Chea, the Democratic Kampuchea’s alleged Communist Party of Kampuchea (CPK) Secretary and presumed second in command to Pol Pot, was the first person arrested directly on orders by the ECCC. On March 20, 2008 the PTC rejected Noun’s appeal of a CIJ order for his pre-trial detention. Similarly, on orders of the ECCC, Ieng Thirith, Democratic Kampuchea’s Minister of Social Affairs (Action), and Ieng Sary, Democratic Kampuchea’s Deputy Prime Minister for Foreign Affairs were arrested and ordered to pre-trial detention. The PTC rejected appeals against pre-trial detention in both cases in decisions on July 9 and October 17, 2008, respectively.

Finally, on November 19, 2007,the ECCC also arrested Khieu Samphan, who had allegedly held numerous high-level positions, within Democratic Kampuchea. Khieu filed an appeal with the PTC which was later withdrawn as part of defense counsel’s pre-trial strategy, but subsequently filed an additional appeal requesting his release on the basis of an alleged abuse of process. Despite Khieu’s appeals, the CIJs’ decision by the CIJs to detain has stood throughout the process.

On account ofBecause the Internal Rules of the ECCC that limit orders for pre-trial detention to a maximum length of one year at a time, defendants continue to appeal extension of orders for pre-trial detention without success. Operating in an environment of endemic abuse of legal process and abuse of the state power to detain individuals pending trial in particular, the ECCC hasve sought to set clear standards of the rule of law and resist the coercive powers of the State. This paper seeks to examine the reasons by which the ECCC have substantiated ittheirssuch denials of appeal against pre-trial detention, and attempts to answer the question of whether such reasons had a solid legal foundation in the ECCC’s pre-trial detention test.

Law Review 2

2011-03-31T18:40:00.003-05:00

Stan Starygin, Judicial Discretion in ECCC Decisions on Pre-trial Detention against the Backdrop of the Case-law of the International Criminal Tribunals, International Criminal Law Review, Mar, 2011 at http://www.ingentaconnect.com/content/mnp/icla/2011/00000011/00000002/art00006

ABSTRACT

This article examines the issue of the exercise of judicial discretion in deciding motions for pre-trial release at the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a comparative prism of other existing and past International Criminal Tribunals (ICTs). Th e issue of pre-trial detention has been one of the most contentious in international criminal justice, with many questioning the ICTs’ insistence on abiding by the self-imposed principle of “detention is the rule, pretrial release is the exception”. Th is article off ers an answer to the question of the extent to which the relevant statutory pronouncements have led to the creation of the foregoing principle, and the extent to which such has been achieved by the statutorily prescribed or the extra-statutory exercise of judicial discretion. Further, this article examines the extent to which the relatively newly established ECCC has followed the patterns of judicial discretion in deciding motions for pre-trial release created by its predecessors.

Law Review 1

2011-03-31T18:34:00.002-05:00

Stan Starygin, Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC): Setting an Example of the Rule of Law by Breaking the Law? Journal of Law and Conflict Resolution, Feb, 2011 at http://www.academicjournals.org/JLCR/

ABSTRACT

This paper encapsulates an in-depth examination of the legality of the authority invoked by the extraordinary chambers in the courts of Cambodia (ECCC) to create a set of rules of procedure and evidence known as the internal rules (IRs). In the void of public information pertaining to the ECCC’s rationale in creating the IRs, this paper, in part, seeks to reconstruct the relevant judicial arguments and, to the greater extent, focuses on answering the question of which of the arguments put forward during the adoption process of the IRs should have been but were not entertained and accepted by the judicial panel to ensure the legality of the actions associated with the creation of the IRs. To this end, the paper extracts a statutory test which is used as the litmus test of the provisions of the IRs analyzed throughout the narrative. The application of this test, in the end, results in the separation of the provisions of the IRs ab initio identified as suspect into those for the adoption of which authority exists at the international level and those which the ECCC has invented ultra vires its own law and applicable international standards.

Invitation to attend the Appeal Hearing in the Duch-Case 28-30 March 2011

2011-03-25T22:29:00.001-05:00

The Extraordinary Chambers in the Courts of Cambodia (ECCC) has the honour to invite national and international public and the media to attend the Supreme Court Chamber Appeal Hearing in case 001 concerning the accused Kaing Guek Eav alias Duch accused of crimes committed in S-21 (Tuol Sleng) and related sites.

The session will commence in the main courtroom on Monday 28 March 2011 at 9 am and will continue on Tuesday 29 March and Wednesday 30 March from 9 am to 4:30 pm. If the hearing cannot complete within the three days, it will continue on Thursday 31 March from 9 am. The court provides simultaneous interpretation of its proceedings in three official languages of Khmer, English and French.

In order to ensure the order in the courtroom, all visitors must be seated in the public gallery by 8:45 am. It is recommended to arrive at the ECCC between 7:30 am and 8 am in order to leave enough time for security checking and issuance of tickets. Doors to the courtroom will close by 9:00 am or when all seats in the public gallery are fully occupied.

All persons seeking admission to the ECCC courthouse must present a proof of identification (including a photo) and must pass through a security check. Participants shall maintain dignity and proper behaviour all the time and shall wear appropriate clothing. Their clothing may not display slogans, indicate their support for or to be offensive any party of the proceeding. Please note that no persons under 16 years of age will be admitted to the court and persons 16 -18 will be admitted only with the guardianship of an adult. No mobile phones, cameras, laptops, recording devices, large bags, food or drink are permitted in the public gallery.

The ECCC is situated in Chaom Chau, 16 kilometres from downtown Phnom Penh, on the left hand side of National Road 4. Public and media please enter from the Visitors Gate at the eastern end of the compound.

Parking will be provided for visitors with their own buses, cars or motorbikes. Assistance for those with disabilities will be provided, including wheelchair access.

Seats in the public gallery of the main courtroom have been allocated as follows:1) Civil Parties - 90 seats for the civil parties and appellants in Case 001. If these seats are not fully utilised by 9 am on the day of the hearing, they will be re-assigned to the general public.
2) Groups - 230 seats for villagers, students and monks arranged/escorted by the Public Affairs Section.
If these seats are not fully utilised by 9 am on the day of the hearing, they will be re-assigned to the general public.
3) General Public – 50 seats for individual members of the general public. Individuals are encouraged to register in advance and will be seated on a first come, first served basis.
4) NGO representatives – 30 seats for representatives of national and international NGOs with ECCC related programmes. NGOs are encouraged to register in advance and will be seated on a first come, first served basis. If these seats are not fully utilised by 9 am on the day of the hearing, they will be reassigned
to the general public.

5) Diplomats and Officials – 60 seats for diplomats and friends of the ECCC, including representatives
of donor countries and the Cambodian Government as well as recognized scholars specialized in the
ECCC. Advance registration is required. Deadline: Wednesday 23 March 2011 at 4 pm. If these seats are not fully utilised by 9 am on the day of the hearing, they will be re-assigned to the general public
6) Media – 20 seats for journalists. Advance registration is required. Preference will be given to print media when allocating the seats in the public gallery. The rest of the representatives of the media will be able to follow the proceedings from the pressroom on the ground floor. Media representatives who wish to be allocated a seat in the public gallery should submit a request for this together with their registration for attendance of the hearing (see below for media accreditation and registration).

To register for seats, please contact Chin Hemvichet as follows:
Email: pas@eccc.gov.kh
Phone: 023 219 814 extension 6065, or 012 696 220
Fax: 023 219 841

Media Accreditation for the appeal hearing:Advance registration and accreditation is required for all media representatives who wish to be granted access to the ECCC on 28 – 31 March 2011. The following procedure will apply for media representatives seeking access to the ECCC for the appeal hearing:
a) Valid ECCC accreditation card holders must register their request for access to the appeal hearing with the Public Affairs Section by sending an email to PAS@ECCC.GOV.KH.
b) Expired ECCC accreditation card holders must re-submit a completed and signed Media
Accreditation Form (http://www.eccc.gov.kh/english/cabinet/fileUpload/26/ECCC_Accreditation_Media_Application_Form.doc) together with their request for registration to PAS@ECCC.GOV.KH. Please indicate the card
number on your expired ECCC accreditation card.
c) Non-ECCC accreditation card holders must submit a completed and signed Media Accreditation Form(http://www.eccc.gov.kh/english/cabinet/fileUpload/26/ECCC_Accreditation_Media_Application_Form.doc), a jpg portrait photo and copy of passport together with their request for registration to PAS@ECCC.GOV.KH

Deadline: Wednesday 23 March 2011 at 4 pm
Photo Courtesy of Extraordinary Chambers in the Courts of Cambodia

The Shoe Might Now Be On the Other Foot But the Court Continues to Wear the Same Worn-out Pair

2011-02-20T20:30:00.000-06:00

Just a few days ago, on Feb, 16, the defense scored the biggest pre-trial detention victory yet as after over 3 years of frustration and continual appeals against the CIJs’ detention orders, the defense was given what appears to be a roadmap to provisional release (more likely during trial than during pre-trial) of their clients in the Trial Chamber (TC)’s decision of the most recent motion for immediate release filed by the defense teams of Noun Chea, Khieu Samphan and Ieng Thirit (as Ieng Sary’s defense team chose to opt out of collection action on the matter, it presumably does not stand to reap the benefits of this decision).

While the defense continued to appeal every pre-trial detention extension order (‘extension order’) of the CIJs regardless of the fact that it would appear that the defense’s arguments would have no effect on the content and format of the subsequent extension orders of the CIJs. This time the defense saw an opening in a procedural blooper made by the Pre-Trial Chamber (PTC) when the Chamber failed to give reasons for its yet another denial of the defense’s appeal against the CIJs’ extension orders (the PTC’s subsequent explanation hinted that the Chamber was merely overloaded with defense motions, an implicit admission which is particularly surprising in the context of the other international criminal tribunals (ICTs) which have a pre-trial chamber powered by a single judge responsible for the same load of work as the ECCC’s 5-judge strong pre-trial chamber). Jumping at the opportunity, the defense claimed abuse of process for which they argued provisional release was the only fitting remedy and took the issue to the TC. Prosecution very correctly argued that the TC does not have an appellate relationship with the PTC. TC hurtled right passed this argument of the prosecution offering a very frivolous interpretation of R. 82(2) of the ECCC Internal Rules (IRs)’s “the Trial Chamber may at any time during the proceedings, order the release of an Accused, or where necessary, release on bail, or detain an Accused in accordance with these IRs” to declare that it had jurisdiction of the dispute (it is not difficult to see that by “at any time during the proceedings”, the drafters meant ‘at any time during the proceedings before the TC’ not proceedings in general (there is a reason why PTC was established as a separate organ of the Court). Perhaps, realizing that claiming provisional release as the only fitting remedy for such a minute procedural violation as mere delay (not denial) of a reasoned decision, the architects of the defense’s joint motion in the alternative and very adroitly chose to re-open the debate regarding the legal and factual bases of their clients’ pre-trial detention. The prosecution seemed to have felt that their position regarding provisional detention was fortified by the PTC’s upholding of the CIJs’ original detention orders following which the prosecution was on easy street as the onus of proof would be shifted on to the defense (R. 82/4’s “change of circumstances” requirement). TC was careful to avoid stepping on the thin ice of the defense’s demand of provisional release as the only fitting remedy for the PTC’s slipup. In doing so, the TC did not err as there is not a morsel of support that can be found for the defense’s contention in the ICT jurisprudence or any of the most defense-friendly proportionality tests. TC, however, did not stop there and accepted the defense’s invitation to re-examine the legal (framed into the ECCC pre-trial detention test) and factual (evidence adduced by the prosecution and tested by the CIJs and the PTC to demonstrate the existence of the circumstances required by the pre-trial detention test) bases of the accused’s detention. The following of what is a fairly uncomplicated pre-trial detention test has been plagued with inadequacies throughout the process (CIJs, for one, have had one hell of a time fumbling through the test). Regrettably, the TC did not set an example on the matter and added generously to the flurry of confusion associated with the test by doing exactly what this appeal was against – it failed to give reasons for its decision on the existence of a factual basis for the prosecution’s arguments. The decision cut very deep into the bone of the prosecution’s extremely tenuous argument (filled with hallucinatory abstractions such as “the fragile context of today’s Cambodian society” developed by the PTC into the haze of “great public interest”) making it lose 4 out of 5 elements of prong 2 of the ECCC pre-trial detention test. TC did not stop there, either, and implicitly invited the defense to file a fresh appeal which might lead to the provisional release of their clients if the defense managed to alley the TC’s concerns regarding the risk of flight by proffering what the Chamber referred to as “viable alternatives” to detention (once these concerns are allayed, release will have to be ordered as prong 1 of the test cannot stand alone). In addition, what appears to be part of the remedy granted by the TC for the PTC’s procedural error, the TC relieved the defense from the “change of circumstances” requirement in the defense’s subsequent motions for provisional release (it is not clear under what law the TC has the authority to do this; while I have always argued that the IRs were adopted not “pursuant” but ‘contrary’ to the law on establishment of the ECCC, I am still convinced that for as long as they are in use by the ECCC, an individual Chamber cannot suspend the ones that it does not like for a particular set of circumstances as this will have very grave rule of law implications). The decision left the defense with the first real opportunity to get provisional release of their clients ordered and the prosecution in the position the defense has been until now – appealing decisions with little or no reasoning in them thus preventing them from arguing against articulated judicial findings, rather than abstractions of unknown origin. It is regrettable that the defense’s first pre-trial detention victory of significance comes with the aftertaste of continuation of the culture of unreasoned decisions at the ECCC.

Judge Nil Nonn Will Not Be Disqualified

2011-01-31T17:39:00.001-06:00

Ieng Sary’s defense team recently attempted to have the Trial Chamber’s President Judge Nil Nonn removed from Case 002 on the basis of the judge’s misconduct which allegedly had occurred during his service in the national courts of Cambodia and prior to the establishment of the ECCC. As evidence of this misconduct the Sary defense team proffered a reference to a documentary which they claimed featured Judge Nil telling a reporter that he had “accepted cash gratuities from grateful litigants”. The defense team, however, was unable to produce the documentary as an exhibit and requested the Trial Chamber’s assistance in securing it. The principal legal basis of this application was Rule 34(2) of the Internal Rules of the ECCC which stated the following:

Any party may file an application for disqualification of a judge in any case in which the Judge has, or has had, any association which objectively might affect his or her impartiality, or objectively give rise to the appearance of bias.

A plain reading of the above rule evinces that this rule does not refer to any disciplinary measures which may or may not result in the removal of a judge from the judicial profession as such but to specific cases the impartiality and/or bias of the judge in which the applicant is supposed to demonstrate. The Trial Chamber correctly and immediately found this not to be the case in the instant application as it alleges improprieties committed by Judge Nil prior to his ECCC service and in cases very unlikely to be relevant to Case 002. Following this finding and instead of moving on to its other business the Chamber chose to embark on a purely academic exploit of the system of disciplining judges which exists under Cambodian law. This is where trouble began. The Chamber went on to point out what it felt were the statutory weaknesses in the disciplining system during the course of which it offered us its two cents’ worth on the root causes of these weaknesses. Once in a zone, the Chamber declared that the ECCC was “designed in part to reinforce measures intended to strengthen domestic judicial capacity in Cambodia” (just when we all thought that the ECCC was established to prosecute the horrendous crimes within its subject-matter jurisdiction, not to serve as a well-funded playground for international judicial trainers to run their training programs while using historical facts as classroom hypotheticals and victims and witnesses as mere actors who act out these hypotheticals to enhance the quality of the training; nor do those of us familiar with the history of the process buy the Chamber’s argument that the international judges were meant to serve as the national judges’ trainers by the design of the ECCC). Pressing on, the Chamber declared the ECCC to be “a model court” (the only model court I am aware of which is recognized by the Cambodian government as ‘model court’ is the Kendal Provincial Court; it is unbeknownst to me at what point and by what authority ECCC was officially designated as ‘model court’ (the operative word here is ‘officially’ as ECCC has been referred to as a model court for the Cambodian judiciary by a number of Western academics who, unlike the ECCC, have the liberty of making statements based upon their own perception of things and unrestrained by the position of the Cambodian government (ECCC being part of the Cambodian judiciary does not have such liberty and must stick to what has been officially decided as a matter of policy when it comes to designations which have nothing to do with the independence of judiciary). From there the Chamber leaps to policy advice in which it indicates that “a genuine commitment” on the part of the Cambodian government is necessary to “fully restore public confidence in the judiciary”. Besides the judges’ desire to pontificate about development topics, it is impossible to see under what authority the Chamber had either the mandate or the competence to give this advice. Finally, denying the defense’s motion for disqualification, the Chamber sends another message to the Supreme Council of Magistracy by stating that “the need for such mechanisms [mechanisms to uphold the standards of judicial integrity] to operate effectively and equitably in order to safeguard public confidence in the judiciary and to strengthen the rule of law within Cambodia” (reading this statement one cannot help but wonder about the extent to which the Cambodian judges of the Trial Chamber participated in the penning of it).

Lecturing from the bench aside (unfortunately, the ECCC is not the only court in the world prone to such lecturing), this decision raises a number of curious issues: (1) Are the international judges of the Trial Chamber implicitly telling us “yes, we know the Cambodian judges are corrupt and we regret this but there is nothing we can do about it; the good news is that the profile and expectation of convictions from these cases is so that there is little doubt that the accused will not be able to pay their way back to liberty out of them (and even if they could judicial salaries of the ECCC are way too high for any of the accused to have the financial means to interest the Cambodian judges)”? (2) Why did the defense raise this issue? All posturing aside, a plain reading of the text of Rule 34(2) makes it very clear that there is no quality of argument that can force the plug of the allegations into the outlet of the rule (although the defense did grab a pair of pliers and tried a couple of tweaks) (the defense could have expanded this to a larger-scale argument and contended that Rule 34(2) was improperly constituted, both under domestic and international law, or that the Internal Rules were improperly constituted or illegally adopted under the law which established the ECCC but they did not do that); Is this a mere exercise of due diligence or a rung in the Stairway to the Heaven of Discrediting of the Entire ECCC Process the Sary defense team is working on or is it the Sary defense team’s contribution to a much loftier cause, i.e. using the ECCC process to do things that would never be allowed in domestic courts (such as questioning a judge’s impartiality)? The first a bureaucratic exercise which amounts to nothing more than “we have done all we could” which will be an argument based on the amount of paper filed with the Chambers, not the promise the arguments written on it bore; the second will be interesting to watch unfold; the third is commendable and might show to the general populace that while there is no actual reform going on now but there is hope; (3) Where is the voice of the Cambodian judges in this decision? (4) Someone will need to watch to start crying wolf when Ieng Sary starts getting a treatment different from the other accused and which may or may not be Judge Nil’s payback for trying to have him disqualified as such actions of the defense are unheard of in Cambodia and the Cambodian judges need to be watched in how they react to them.

DSS Steps In to Rectify What It Sees As Ineptitude

2011-01-31T17:24:00.000-06:00

At the outset, let’s dispense with a potential claim that the ECCC’s Defense Support Section (DSS) never phrased its present intervention in the terms as direct as those of the title of this article. Yes and no. No, the DSS never used any of these words in either of its motions to the Supreme Court Chamber (SCC). Yes, this is exactly what the DSS meant to do, whether it phrased it as directly as I did or not. It is evident from the following: (1) DSS goes to the SCC to inform the Chamber that “the Co-Lawyers for the Accused have not addressed a number of issues of law raised on appeal by the Co-Prosecutors” (by which DSS insinuates incompetence on the part of the Co-Lawyers (DSS means to say that the Co-Lawyers did not identify the full scope of the issues they needed to counter); (2) DSS believes they can do a better job identifying these issues and providing counterpoints for them than did the Co-Lawyers; (3) when the SCC rejected the DSS’s request for leave to submit an amicus curiae brief to rectify the inadequacies of the Co-Lawyer’s submission, DSS filed another motion this time requesting that an appeal for amicus curiae briefs be made to third parties (by this, the DSS appears to be saying that if the SCC will not let them submit an amicus brief, they want the Chamber to grant leave to do so to someone else; the DSS’ persistence in this case is indicative of their perception of the level of inadequacy of the Co-Lawyers’ submission and the harm it can do to the convicted person (Duch); (4) this is the first time the DSS has taken the role of fixing a Co-Lawyers’ motion I am aware of.

This attempted intervention of the DSS, whatever its outcome might end up being, is not a matter confined to a single accused or a single case and must be understood as such. What has happened here is an intervention of a purely administrative organ of the Court into a substantive matter within the competence of other persons (Co-Lawyers) who have been hired to deal with this – and other – matter based upon their proven (at least theoretically) competence to do so and based upon the rules chiseled out by the DSS. Under the law which established the ECCC there is no express provision which establishes an organ such as the DSS. There are, however, provisions to this effect enshrined in the Internal Rules (IRs). My reading of these provisions is the same as that of the Co-Prosecutors, i.e. there is not a single provision in the IRs which can be reasonably interpreted as giving the DSS authority to file motions with the Chambers or, put another way, deal with substantive (by ‘substantive’ I do not mean ‘substantive v procedural’ but broadly encompassing all matters other than administrative and financial) issues of cases. The two relevant motions of the DSS, I infer that the DSS’ reading of its mandate spelled out in the IRs is the same as mine and the Co-Prosecutors. As such, there is nothing in the law (it is arguable to what extent the IRs constitute a law but I am including them in this definition of ‘law’ here regardless) which gives the DSS authority to intervene the substantive aspects of the proceedings. However, what is the DSS supposed to do (it is staffed with lawyers some of whom have backgrounds beyond court administration) if it sees a motion filed by Co-Lawyers so manifestly inadequate that it will doubtless harm the accused or convicted person, if not cured? By law, essentially nothing. It should stand and watch Co-Lawyers do the job they were hired to do, hope that these perceived omissions are elements of a newfangled legal strategy (and once their complexity is revealed will become apparent to all qualified observers), and only intervene in matters of administrative nature as the Chambers are the guarantors of the rights of the accused under the IRs. Commendable as the DSS’ commitment to the rights of the accused has been revealed through the present action to be, the DSS must be restricted to its administrative functions as once an exception is made (and this is as good a situation to make an exception for as it will probably ever be) it will be impossible to put the cork back in that bottle. While the Chambers are theoretically the gatekeepers of the quality of lawyering in the proceedings before them, the adversarial nature of these specific proceedings entails a contest where the weaker loses and the stronger wins (in my opinion, not only did the prosecution have a factually more defensible position, they acted significantly superior to the defense as a group of lawyers and investigators in Case 001; the Trial Chamber – not could any other court -- could do nothing to guarantee that the quality of lawyering is equal (equally good or equally bad) on the both sides). Some might consider this situation to be something that cannot and should not be controlled by anyone once reasonable requirements for the hiring of lawyers have been met. Others might believe that there are particularly grave situations which are so inimical to the rights of the accused or convicted person that someone should inveigh against them. DSS falls within the latter category and saw intervention as part of its mandate in spirit, rather than that in letter. This situation doubtless shows that the IRs are inadequate to deal with this matter and must be amended at the next plenary so that they can.

PTC Rejects Motions for Pre-Trial Release; Amends Indictment to Exclude Rape as a Stand-Alone Offense

2011-01-28T19:05:00.000-06:00

Today, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has confirmed and partially amended the indictments against the Accused Persons Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea. The Pre-Trial Chamber has ordered the Accused Persons to be sent for trial and to continue to be held in provisional detention until they are brought before the Trial Chamber. The indictments include charges of crimes against humanity, genocide, grave breaches of the 1949 Geneva Conventions and murder, torture and religious persecution as defined by the 1956 Cambodian Penal Code.

The Co-Investigating Judges issued a Closing Order with the initial indictments of the Accused Persons on 15 September 2010. All four Accused Persons filed appeals against the Closing Order to the Pre-Trial Chamber.

The Pre-Trial Chamber found that the appeal filed by Khieu Samphan was inadmissible, whereas the appeals filed by Ieng Sary, Ieng Thirith and Nuon Chea were found to be admissible in part. Of the admissible parts, the Pre-Trial Chamber dismissed all the grounds of appeal with two exceptions. First, the Pre-Trial Chamber ordered that the Closing Order be amended with a specification for the requirement of the existence of a link between the underlying acts of crimes against humanity and an armed conflict.

Secondly, the Pre-Trial Chamber also found that rape did not exist as a crime against humanity in its own right in the period 1975-1979, but that rape could be considered as “other inhumane acts” within the legal definition of crimes against humanity. The Closing Order was amended accordingly. The Pre-Trial Chamber will issue reasoned decisions on the appeals at a later date.

Defense Makes Another Push for Pre-Trial Release of the Accused

2011-01-28T19:02:00.000-06:00

The Trial Chamber in the Extraordinary Chambers in the Courts of Cambodia (ECCC) has decided to conduct one consolidated hearing on Monday 31 January 20111 to hear oral submissions related to:

•   “Urgent Application for Immediate Release of Nuon Chea”. The Application is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/824/E19_1_EN.PDF

•   Khieu Samphan’s “Application for Release Pursuant to Rule 82(3) of the Internal Rules". The Application is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/823/E18_1_EN.PDF

•   “Urgent Request for Immediate Release of Madame Ieng Thirith”. The Request is available at http://www.eccc.gov.kh/english/cabinet/courtDoc/830/E21_EN.PDF

The hearing will start at 9:30 am. The Defence for each Accused, will each be permitted a maximum of 30 minutes to present their Applications. The Co-Prosecutors will be allowed a total of 60 minutes to respond to all Applications. The Accused's Defence will then be permitted 10 minutes each in response.

There are 482 seats in the public gallery of the courtroom, which are available for diplomats, media and the general public. Seats are distributed on first come, first served basis. Diplomats and media representatives who wish to reserve a seat in the public gallery must contact the ECCC Public Affairs Section at PAS@ECCC.GOV.KH at latest by Friday 28 January 2011.

We recommend that visitors arrive no later than 45 minutes before the hearings in order to leave sufficient time for registration and security check. All persons seeking admission to the ECCC courtroom must present a proof of identification (including a photo) and must pass through a security check.

Participants shall maintain dignity and proper behaviour all the time and shall wear appropriate clothing (no beachwear or shorts, flip flops etc). Their clothing may not display slogans, indicate their support for or to be offensive to any party of the proceeding. Please note, no persons under 16 years of age will be admitted to the Court and persons 16 -18 will be admitted only with the guardianship of an adult. No mobile phones, large bags, food or drink are permitted in the main courtroom.

Media accreditation and facilities
Representatives of the media that wish to attend the hearings are kindly requested to seek accreditation no later than on Friday 28 January 2011.

Media representatives currently holding an expired ECCC Press Accreditation Card must submit a completed Media Accreditation Form which can be downloaded from http://www.eccc.gov.kh/english/mediaRelations.aspx and send it to PAS@ECCC.GOV.KH. Please indicate the card number on your expired card.

Media representatives who have not previously been accredited to the ECCC must submit a completed Media Accreditation Form http://www.eccc.gov.kh/english/mediaRelations.aspx and send it to PAS@ECCC.GOV.KH together with a jpg portrait photo and a copy of their passport.

Please note that Media Accreditation Forms must be signed by the applicant before the request for accreditation can be processed.

A live feed of the public hearing will be available in the media room C105.

How to get to the court
The ECCC is located in Chaom Chau, 16 kilometers from downtown Phnom Penh, on the left hand side of National Road 4.

Public and media are requested to enter from the visitor’s gate at the eastern end of the compound.

Japan Contributes to the UN Side of the Tribunal

2011-01-28T19:00:00.000-06:00

The Government of Japan has confirmed that it will provide a new contribution of US$11,705,975 to the Extraordinary Chambers in the Courts of Cambodia (ECCC), of which US$8,771,225 is for the international component and US$2,934,750 for the national component. This contribution will cover about 25% of the ECCC’s budget for 2011.

The Government of Japan has provided assistance to the ECCC since its establishment, and it is the single largest donor to the ECCC. With this latest pledge, Japan has provided financial assistance of about US$67 million or about 49 % of the total Pledges and Contributions to the ECCC to date.

“I would like to express my deepest gratitude for this generous contribution and the continued support from the Government of Japan, which comes at a crucial time for the ECCC. This support is essential in enabling the ECCC to move forward with the important work to complete its mandate”, says H.E. Tony Kranh, Acting Director of Office of Administration in a statement.

Case 002: Aspects of Note in the Closing Order: Part II

2010-12-09T02:05:00.000-06:00

Stan Starygin

(1) CIJs presume that not only did the accused possess knowledge of the post-WWII trials, they had knowledge of them so nuanced that it would make them aware of the specific offenses which were prosecuted at these trials and the legal categorizations of these offenses. CIJs do not let us in on how they had come to this conclusion;

(2) CIJs granted themselves an authority to “interpret the law governing their own jurisdiction”, a power well outside the scope of prescribed authority of investigating judges under Cambodian law;

(3) CIJs invented an evidentiary of their own which cannot be found in Cambodian law or, by their own admission, in French law. They felt that this standard should “probability”, rather than “possibility”, and “provide a certain level of probative force”. CIJs decided that this standard would be slightly lower than ‘beyond reasonable doubt’. As such, CIJs set the evidentiary bar for themselves higher for no particular reason and with no statutory bearing on the higher jurisdictions. They placed this invented standard below the standard of proof (beyond reasonable doubt) which does not exist in the Cambodian law, either (but which was superimposed from other jurisdictions by the Trial Chamber (TC) in Case 001));

(4) CIJs concluded that while they conceded that the authority to determine the validity of amnesties and pardons was that of the TC, they concluded that Ieng Sary’s pardon should have no bearing on his prosecution before the ECCC. To this effect, they gave reasons such as the difference between the elements of the offense of ‘genocide’ of the Genocide Convention and those applied the 1979 trial (People Revolutionary Tribunal (PRT)) and the overall weaknesses and virtual non-existence of a judicial system in Cambodia between 1979 and 1982. What the CIJs omitted was the simple fact that regardless of their otherwise negative perception of the PRT, at no point did they declare this tribunal to be illegally constituted. Regardless of any factors associated with the PRT, the conviction and the sentence of death handed out to Ieng Sary were very real and had Ieng Sary been captured at the time he would have been executed on the basis of the PRT’s decision. As such, the pardon issued to him in 1996 was there to remove a very specific punishment;

(5) CIJs include the alleged regulation of marriage by the DK government into acts attracting prosecution as crimes against humanity. One cannot help but wonder why crime against humanity this act constitutes, if in fact it took place (for instance, forced labor in the cooperatives substantiates the offense of enslavement as a crime against humanity; what offense does the regulation of marriage substantiate?). CIJs’ inclusion of ‘rape’ in ‘crimes against humanity’ goes against the grain of their own definition of legality earlier in the document (‘rape’ was only recently added to ‘crimes against humanity’ and was not part of this group of offenses during the temporal jurisdiction of this Court);

(6) In its legal analysis, CIJs do not appear to distinguish between the “widespread and systematic attack” on the Chams and that on the Buddhist monks and nuns. It is particularly of significance because while in the Factual Finding the CIJs argue the Chams were executed for being a religious and ethnic minority, there is no evidence that Buddhist monks and nuns were executed for belonging to a religion (in most cases they were merely prevented from practicing their religion);

(7) CIJs did not provide or reference their definition of ‘extermination’ which they appear to have confused with ‘execution’;

(8) CIJs appear to have invented their own categories of the offense of ‘other inhumane acts’ which were not part of the statutes of the post-WWII tribunals the CIJs refer to earlier in this document as one of the key authorities;

(9) CIJs found that an armed conflict between Democratic Kampuchea and the Socialist Republic of Vietnam existed throughout the entire temporal jurisdiction of the ECCC;

(10) CIJs argued that to establish culpability through the judicial doctrine of Joint Criminal Enterprise (‘JCE’) “the contribution [of the accused] need not be necessary or substantial, but at least should be a significant contribution to the commission of crimes on the ground for which the [person is] responsible”;

(11) CIJs, however, have excluded what is known as JCE III which is the most broadly sweeping mode of JCE and for which the CIJs correctly found no grounds in the Cambodian or international law of the temporal jurisdiction of this tribunal;

(12) CIJs ordered that the accused be charged on the basis of homicide and torture as defined in the 1956 Criminal Code of Cambodia in addition to the charges based on the same offenses as found and defined in international law.

Case 002: Aspects of Note in the Closing Order

2010-12-07T01:20:00.001-06:00

Stan Starygin

(1) Under Procedural Background (II (4)) the Co-Investigating Judges (‘CIJs’) refer to the method in which the ECCC acquired custody of Duch by using two words “detained” [by order of the CIJs] and “transferred” [to the ECCC Detention Center]. This ambiguity might be misleading to a reader and as such might create an erroneous perception that Duch was restored to his liberty for any period of time before he was arrested by the ECCC. CIJs, as well as any ECCC personnel or observers of the Court are fully aware that this is not what historically happened. What did happen was that Duch was transferred from detention at the Military Prison of Phnom Penh to detention at the ECCC Detention Center. He was never released from detention at the Military Prison, nor was his liberty restored to him for any period of time. Therefore, the CIJs’ use of the word ‘detained’ to describe the method by which Duch was delivered to the ECCC is misleading as it creates a perception that Duch was at liberty when he was detained on orders of the CIJs. The use of the word ‘transferred’ here is equally misleading as it is confusing and possibly redundant, if used in dissociation from Duch’s detention at the Military Prison. It is highly regrettable that neither the PTC, nor the CIJs have been able to document the history of Duch’s placement in ECCC detention accurately for which there appears to be no justifiable reason. It is particularly interesting that the word ‘detained’ [by order of the CIJs] is used to describe the arrest and placement in ECCC custody of the other 4 suspects all of whom were at liberty when they were “detained”. This undisputed and crucial distinction is not clear from the CIJ’s language in this Closing Order. The word ‘transferred’ is also used to describe the placement of the other 4 suspects in custody from which it can be reasonably inferred that as the other 4 suspects had no prior detention to be transferred from, the use of the word ‘transfer’ in relation to Duch is not the CIJs’ way to acknowledge his prior detention at the Military Prison and his transfer from there to ECCC custody.

(2) In Armed Conflict (VI) the CIJs found that armed conflict existed between Democratic Kampuchea and the Socialist Republic of Vietnam from “almost immediately following” Khmer Rouge’s seizure of Phnom Penh in April, 1975 until their retreat from Phnom Penh in January 1979. In this case the CIJs did not have to belabor the evidence adducible to the existence of armed conflict such was found by the Trial Chamber (TC) in Case 001 to which the CIJs refer here.

(3) CIJs accepted the prosecution’s mode of liability known as Joint Criminal Enterprise (JCE) as applied to the suspects in Case 002.

(4) In different parts of the Closing Order the CIJs find that Cham and Buddhists were not permitted to practice their religion when it, perhaps, would be accurate to suggest that no one was allowed to practice their religion; religion was banned as such. This is an important matter to establish before a question of whether the treatment of certain groups was discriminatory can be answered;

(5) CIJs found that there was prima facie evidence to substantiate a claim of S-21-related rape which was rejected by the TC in Case 001;

(6) CIJs found prima facie that the 4 Westerners who were executed following their detention at S-21 were executed on specific orders of Noun Chea;

(7) CIJs seem to have been able to tease out the offenses for which persons were executed in Democratic Kampuchea (for which there was no written criminal code) which appear to be as follows: (1) treason (it must be noted that ‘treason’ in DK was very broadly defined); (2) offenses against morality (which included rape and extramarital sexual intercourse on what appears to be an equal footing); (3) theft;

(8) CIJs’ investigation has evinced a number of what appears to be consistent CPK policies regarding the execution of enemies. One such policy which seems to permeate the Closing Order is that purges of internal enemies were not limited to the period immediately following the demise of the Khmer Republic but continued on throughout the DK regime with high-ranking officials (Son Sen) being quoted as urging the lower level of the DK government to continue and intensify the purges. What there seems to be no consistency about is the CPK’s secrecy policy on executions as the CIJs in some cases quote witnesses as saying that secrecy was at a very high level while in others witnesses are quoted as relaying that prisoners were executed in the middle of prison yards to serve as a deterrent to the rest of the prisoners. There is also no consistency in the description of the procedure of decision-making regarding executions. In some cases there appears to be evidence of multi-tier government involvement in decisions to execute while in others it appears that chairpersons of individual security centers had the authority to order executions. While many parts of the Closing Order allude to party members being treated differently (particularly the high-ranking and mid-ranking ones), there appears to be no conclusive evidence (or effort to collect such) as whether there was a clear and universally understood decision-making process regarding executions – and whether it was different for party members -- or whether each zone – and possibly even sector – were allowed to treat it differently insofar they reported sufficient numbers of purged to placate the upper echelons of the CPK. The latter seems to be implausible as pre- and post-DK Cambodia has never been known for a decentralized approach to governance. Considering the CPK’s overall totalitarianism it is difficult to imagine that it would be the first and only government to have introduced this approach. It is possible – but not very likely – that the Center did not maintain sufficient control over each security center which afforded the security centers a certain amount of latitude;

(9) It appears to be clear that the CIJs emphasized the execution of children in their investigation. The evidence amassed shows that children were not spared execution due to their young age. It is, however, unclear whether in most cases they were arrested and executed with their parents or on their own (it is known that CPK did not have the same approach to childhood as normally adopted and placed children on an equal footing with adults;

(10) On a number of occasions the Closing Order refers to presently undisclosed witness testimony which makes it impossible to reasonably determine whether the witness had a way of knowing what he claims to have known (e.g. in ¶ 712 the witness claims that prisoners were accumulated in the security center until their number reached 100 at which point they were executed; this information could only have been known to an insider; in ¶ 783 witnesses state that 10,000 and 30,000 people were executed in a particular security center; neither witness appears to be in a position to make this statement with any degree of precision which makes these statements not much more than a surmise). On other occasions the Closing Order makes an estimate of the number of persons executed based on eyewitness testimony (e.g. in ¶ 711 this number is estimated at 2,000-3,000 persons; it is curious under what conditions a witness could make a credible determination of this type; there were 30-40 trucks transporting prisoners to the execution site on the same day which means that there would have had to be a facility large enough to hold these 2,000-3,000 persons while there were being transported to the execution site) the accuracy of which 30 years after the fact and in case there is no physical evidence to corroborate this testimony should be considered as having no probative value (nor should it be the case with lists of 140 people recited from memory complete with their positions during DK);

(11) A witness came forward who claims to have been a participant of a sector-level meeting where it was announced that the biggest enemy of the Revolution was the Cham and that they were to be destroyed (“smashed” in the revolutionary jargon) by year 1980 and that was a policy statement to the same effect. This is a very important testimony which, if corroborated in court, will be grounds for conviction of the offense of genocide;

(12) A witness came forward who claims that the Standing Committee gave the authority to “smash enemies” to the zones in March 1976. To this effect, CIJs cite the Decision of the Central Committee Regarding a Number of Matters dated March 30, 1976;

(13) A recent demographic found that there had been 20,000 Vietnamese living in Cambodia during Democratic Kampuchea and all of them “died from the hands of the Khmer Rouge” by the end of the regime (the report also revealed a previously undisclosed fact of mass executions of the ethnic Vietnamese during the Khmer Republic which potentially has very complicated implications for Case 002). This is a very inclusive statement. An article in the Revolutionary Flag appears to state that expulsion – not execution – of the Vietnamese was CPK’s intended course of action. One witness relays a practice akin to the Nuremberg Race Laws which made the children of a ethnic Vietnamese mother subject to execution with the mother while children whose mother was Khmer and the father was ethnic Vietnamese were not subject to execution (with the father being on the only one subject to execution). It is not clear from the Closing Order whether the CIJs have found this to be a national policy or an isolated incident of local practice. There is, however, a reference to a telegram cc-ed to Noun Chea and Ieng Sary which reports the killing of 1,000 Vietnamese civilians. With this said, a reference in ¶ 830 to a document dated January 3, 1979 is hardly relevant to the question of treatment of ethnic Vietnamese as it was issued after the military forces of the Socialist Republic of Vietnam invaded Cambodia;

(14) The Vietnamese government refused to cooperate with the ECCC but ignoring the rogatory letters issued by the CIJs and the OCIJs’ investigator attempted communication. While as a matter of law this refusal to cooperate is not indicative of anything, it raises a number of interesting questions which will doubtless not be entertained during the proceedings due to their non-legal nature;

(15) CIJs concluded that there is prime facie evidence that the DK military (Revolutionary Army of Kampuchea) committed crimes (a legal analysis will be required to categorize them as ‘war crimes’) during their incursions into the Vietnamese territory (which DK believed to be Cambodian territory and many Cambodians still do to this day);

(16) Noun Chea: despite his specific statements to the contrary, the CIJs did not believe that NC told the truth about his membership in the Military Committee. Nor did the CIJs accept NC’s statement that he was unaware of the existence of S-21 since it was within the purview of the Ministry of Defense and Security Forces headed by Son Sen. CIJs juxtaposed this statement with a statement of Duch who claims that starting 1977 NC became his immediate superior officer after Son Sen moved out closer to the Vietnamese border. If accepted by the TC, this is likely to link NC mostly directly to the executions; CIJs cite NC’s statement where he admitted that people working in the cooperatives were not being paid (this coupled with an allegation that they were assigned to particular cooperatives and were not free to leave may amount of the offense of slavery). CIJs also found that NC visited at least 3 sites of the list of sites under investigation. A witness is quoted as stating that there was what appears to be an inconsistency between NC’s orientation to ensure that people in the cooperatives should be given more food and his orientation to collect 3 tons per hectare of rice (while this might be an error of judgment, it is unlikely to have either inculpatory or exculpatory value in these proceedings for which reason its inclusion in the Closing Order is curious). NC is quoted as admitting at least some executions ordered by the CPK (“we killed only the bad people, not the good”). CIJs found no evidence that NC ever visited any of the security centers. Duch identified annotations on some of the S-21 confessions as written by NC. Duch claims that NC authorized executions of S-21 staff on recommendation from Duch. NC stated that “comrades at S-21” had not followed the Party line and had gone too far”. On some occasions NC would give Duch specific instructions not to mistreat prisoners during interrogations. Duch claims that NC had told him that everyone sent to S-21 had to be killed.

(17) Ieng Sary: A number of witnesses stated that while IS was in charge of the Ministry of Foreign Affairs (B-1), all important decisions were made by the Standing Committee. IS claims that CPK discovered a CIA/Khmer Republic plan to oppose CPK once CPK took over Phnom Penh. IS claims that his use of words such as ‘eradicate’ and ‘smash’ is not indicative of his knowledge of the killing but was a mere matter of adhering to the revolutionary language. IS has admitted that he was aware of the existence of S-21 during the Democratic Kampuchea period. IS and others relate that originally it took 3 persons implicating another for the latter to be arrest; later than number was revised to 5; also, later, persons could be arrested only for post-revolutionary activities. CIJs state that they have found prima facie evidence that IS could intervene in arrests and could have the lives of some of his employees spared. It appears from the evidence amassed by the CIJs that IS was aware of the executions (at least some of them) and was aware of the State policy on the same. However, it appears that CIJs were unable to find any evidence of IS’s direct involvement in the ordering of arrests and executions with IS’s full-rights membership in the Standing Committee appearing to be the only link between him and the executions (which might suffice, should the TC rely on JCE III, even in the face of the fact that they might not be ‘hard’ evidence to adduce).

(18) Khieu Samphan: It does not appear to be clear whether KS participated in the decision to evacuate Phnom Penh. CIJs’ finding that KS was aware of starvation in the cooperatives when rice was being exported seems to be based on dubious evidence (¶ 1170). It appears that only circumstantial evidence exists to link KS to the Directive of March 30 which decentralized the authority to execute by delegating it to the zones, 1976; no evidence was adduced that KS was part of the decision-making process which resulted in this policy. In Sept, 1979 Pol Pot announced before a large party congress that the zones no longer had the authority to arrest but only question suspects and send reports of questionings to the Party Center. KS is quoted as saying that at one point half of the Central and Standing Committees were Vietnamese agents (while this in itself does not directly link KS to the executions, it shows that he shared the definition of ‘Vietnamese agent’ adopted by other top leaders of DK). The evidence adduced against KS appears to be thin. It appears that due to his membership in the Central Committee and frequent attendance of Standing Committee meetings he should have been a part of the impugned process or at least should have been aware of the decisions that were being made regarding arrests, executions, and otherwise offenses within the subject-matter jurisdiction of this Court. However, when it comes right down to it the evidence against KS proffered by the CIJs does not seem to stand on firm ground. As it is the CIJ’s mandate to offer a balanced view based on an investigation independent from that of the Office of the Co-Prosecutors (‘OCP’), there does not appear to be any strong exculpatory evidence either.

(19) Ieng Thirith: Unlike her co-accused, IT was not a member of either the Central or the Standing Committee. It appears that IT was not privy to the discussions held on the most important policy matters. While there is evidence that she gave an order to dismiss staff of her ministry following the declaration of the Chairman of the Eastern Zone Sao Phim, there appears to be no evidence as to whether she was aware where the dismissed employees were sent to and whether some or all of them would be imprisoned or executed. After the toppling of DK, IT did admit that she was aware of the arrest and execution of “enemies” and “excesses” associated with it which she, however, chalked up to the revolutionary conditions in the country. IT disseminated information about those persons declared as ‘traitors’ by the CPK. There appears to be evidence that IT was aware of arrests and executions of the staff of her ministry suspected of enemy activity but her role in the arrests is not clear. It appears that most arrested staff of the Ministry of Social Affairs were implicated in the confessions of previously arrested persons. Duch also says that the Ministry of Social Affairs could report someone as a suspect to the higher authorities. To what extent IT was consulted on matters of arrest is not clear. It is reasonable clear she probably executed orders to arrest given to her by her superiors. There is reason to believe that in some instances IT was able to interfere with arrests and that her authority was limited but it is not clear to what degree. IT is quoted as fomenting hatred against the Vietnamese (although considering the full-scale invasion it is curious to what extent the CPK was wrong about considering Vietnam to be its enemy).

The New ECCC Internal Rules: Effective Victim Participation and Reparations Advanced, but Implementation Not Yet Guaranteed

2010-11-08T03:13:00.000-06:00

FIDH International Federation for Human Rights

On the 17 September 2010, at the 8th Plenary Session of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Judges adopted a revised version of their Internal Rules. While welcoming improvements made with regard to the realization of the ECCC’s reparation mandate and consultation processes with NGOs, the Cambodian Human Rights Action Committee (CHRAC) and the International Federation for Human Rights (FIDH) have concerns that the ECCC Judges did not adopt essential safeguards to ensure an effective implementation of victims’ right to reparation ahead of the second trial.

CHRAC and FIDH welcome the critical introduction into the Internal Rules of an additional avenue for awarding moral and collective reparation to Civil Parties. In addition to awards of reparations directly paid by the accused persons, this new mechanism will allow the possibility of collective reparations in the form of projects recognised by the Chambers. Such projects are to be designed and implemented through coordination of the ECCC Victims’ Support Section and in partnership with Lead Co-Lawyers and external actors. Regrettably, the ECCC did not provide any amendments clarifying the funding of these awards, such as establishing a specific Fund or other funding mechanisms to finance such projects. As a consequence, sources of funding remain vague and will need to be identified at a later stage.

Our organisations welcome the fact that proposed amendments on reinforcing collaboration between the Victims Support Section, Civil Party Lead Co-Lawyers and non-governmental organisations with regard to the implementation of collective reparations and non-judicial programmes were generally accepted by the Plenary Session. CHRAC and FIDH call for the effective implementation of these provisions as the preparation of the second trial is on-going.

However, CHRAC and FIDH regret that the Plenary Session did not follow their recommendations in relation to ensuring that collective reparations to Civil Parties are fair and adequate and preparing the Internal Rules sufficiently for challenges that will arise in the process of implementation. In this regard, our organisations regret that our proposals allowing for more flexibility in designing the single claim and guaranteeing that voices of marginal groups are included were not considered by the Judges. Moreover, and considering the age of the accused persons, it is vital that more efforts are made to elaborate on how non convicted-borne forms of collective reparations could be pursued after the death of the accused.

Overall, we commend the Plenary’s amendments to the Internal Rules which, for the first time, provide a feasible option for the realisation of the ECCC’s reparations mandate. However, we hope that the Judges will use their next Plenary Session at the beginning of next year to include additional measures into the Rules to ensure an effective and adequate implementation of those provisions.

ICTR/ICTY Appeal Chamber on Immunity from Prosecution of Foreign Counsel

2010-10-17T06:38:00.000-05:00

http://jurist.org/paperchase/ErlinderDecision.pdf