International Criminal Justice for Cambodia?
This post has been originally published on 25.11.2018.
Today (11/16/2018) the Trial Chamber of the ‘Extraordinary Chambers of the Courts in Cambodia’/‘Chambres extraordinaires au sein des tribunaux cambodgiens’ (ECCC) rendered a judgment concerning criminal acts of Nuon Chea and Khieu Samphan. Both were found guilty on charges of genocide, crimes against humanity, and grave breaches of the Geneva Conventions of 1949 and sentenced to life imprisonment. This is so far the first time that this very tribunal convicted someone of genocide. Mr. Chea (92) who was the Deputy Secretary of the Communist Party of Kampuchea and in this capacity acted as “Pol Pot’s right hand” and Mr. Samphan (87) who was the Head of State of Democratic Kampuchea were found guilty of genocide against the Muslim Cham minority and ethnic Vietnamese. Both defendants were already sentenced to lifelong imprisonment in 2014. Thus, the court decided to join both penalties to one lifelong sentence.
The ECCC or Khmer Rouge Tribunal was established as a hybrid court between the Kingdom of Cambodia and the United Nations in 2003 and became fully operational as of 2006/7. The ECCC’s mission is to bring to justice the senior leadership of the Khmer Rouge on counts of grave breaches of international as well as domestic criminal law.
The ECCC was preceded by the Khmer Rouge or the regime of the Communist Party of Kampuchea (CPK) which seized power in 1975 and was finally overthrown in 1979. During their 3 years, 8 months, and 20 days of rule the Khmer Rouge are believed to having eliminated at least 1.7 million of their alleged political opponents (roughly 25% of the Cambodian population at the time) due to starvation, torture, forced labor, and executions. In 1997 the Cambodian government asked the UN for support in trying the most senior perpetrators of the Khmer Rouge. Formal negotiations between the UN and Cambodia were initiated in 1998 after the CPK was completely dismantled. Due to several factors including financial and other concerns the negotiations lasted until 2003 when a formal agreement between Cambodia and the UN was agreed on. The establishment of the ECCC occupied an additional four years.
In comparison to more traditional international criminal tribunals such as the ICTY/ICTR (established by UN Security Council) or the ICC (created by an international treaty) the ECCC is quite a unique creature. First, the hybrid nature, consisting of national and international judges and applying international and domestic criminal law is fairly exceptional. When it comes to the procedure the ECCC is pretty much comparable to other international criminal tribunals: the jurisdictional scope is limited to senior officials of the Khmer Rouge (ratione personae), grave breaches of criminal law (ratione materiae), and the period between 17 April 1975 and 7 January 1979 (ration temporis). Two co-prosecutors file an application instituting investigations by two co-investigating judges who submit an application to the pre-trial chamber. The pre-trial chamber can submit the case to the merits stage before the trial chamber which is competent of issuing a judgment. The judgment can be appealed against before a Supreme Court Chamber. At all stages domestic and international judges are involved and the voting rules are designed in a way that both groups check and bar each other.
The work of the ECCC is widely regarded as being of high importance and success. In the present case 185 persons (including 114 witnesses, 63 civil parties, and 8 experts) were heard and 82.780 people followed the hearings from outside the courtroom.
In contrast, the ECCC is also subject to substantive criticism regarding its effectivity. Hitherto, the court has only heard four cases (although highly complicated) in which a good number of defendants never were brought to justice because they passed away during the proceedings. Despite the relatively low number of cases the court has consumed a significant amount of financial means in a non-transparent fashion. Moreover, the reluctance of the co-investigating judges and the pre-trial chamber to submit a case to the merits is often criticized as politically motivated.
Nevertheless, the ECCC in general and today’s judgment in particular are a highly relevant area of research at the intersection of international criminal law and conflict studies.
Jan-Phillip Graf, Geneva
Credit: All 482 seats in the public gallery are occupeid, 29 August 2013, CC BY-SA 2.0.