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New approaches to international justice in Cambodia and East Timor

Published online by Cambridge University Press:  19 April 2010

Suzannah Linton
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Type
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Information
International Review of the Red Cross , Volume 84 , Issue 845: Impunité/Impunity , March 2002 , pp. 93 - 119
Copyright
Copyright © International Committee of the Red Cross 2002

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References

1 UNTAET was established by SC Res. 1272 (1999).

2 For more detailed examinations of issues covered in this paper, see Linton, Suzannah, “Cambodia, East Timor and Sierra Leone: Experiments in international justice”, Criminal Law Forum, Issue 12(2), pp. 185–246CrossRefGoogle Scholar; “Prosecuting atrocities at the District Court of Dili”, Melbourne journal of International Law, Vol. 2/2, 2001, pp. 414–458Google Scholar; “Rising from the ashes: The creation of a viable criminal justice system in East Timor”, Melbourne University Law Review, Vol. 25/1, 2001, pp. 122–180Google Scholar.

3 See, for example, Vickery, Michael, Cambodia 1975–1982, Boston 1984Google Scholar; Kierman, Ben, The Pol Pot Regime, Yale University Press, 1996Google Scholar; Chandler, David, Voices from S–21, Silkworm Books, 1999Google Scholar.

4 Report of the Group of Experts for Cambodia established pursuant to UNGA Res. 52/135 (Group of Experts Report), transmitted by the Secretary-General along with his own report, UN Doc. A/53/850, S/199/231, paras 15 and 16.

5 Ibid., para. 35.

6 See, for example, Kiernan, Ben, “The Cambodian genocide: Issues and responses”, in Andreopoulos, George J. (ed.), Genocide: Conceptual and Historical Dimensions, University of Pennsylvania Press, 1994Google Scholar; Railsback, Kathryn, “A Genocide Convention action against the Khmer Rouge: Preventing a resurgence of the Killing Fields”, Connecticut Journal of International Law, Vol. 5, 1990, pp. 457–465Google Scholar.

7 UNGA Res. 52/135.

8 Group of Experts Report, para. 129.

9 Ibid., para. 137.

10 “Tribunal Memorandum of Understanding Between the United Nations and the Royal Government of Cambodia”, <www.yale.edu/cgp/tribunal/mou_V3.htm>.

11 For the text see <www.derechos.org/human-rights/seasia/doc.krlaw.html>.

12 <http://www.un.org/apps/news/story.asp?NewsID=2829‖Cr=cambodia‖Cn=court>.

13 The basis of criminal action is in fact contained in the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents.

14 Group of Experts Report, para. 129; letter dated 21 June 1997 from the First and Second Prime Ministers of Cambodia addressed to the UN Secretary-General, annexed to UN Doc. A/1997/488 of 24 June 1997. See also the reports of the Special Representative of the Secretary-General for Human Rights in Cambodia, in particular UN docs E/CN.4/1999/101 of 26 February 1999 and E/CN.4/ 2001/103 of 24 January 2001, and the Secretary-General's Report to the General letter sembly A/54/353 of 20 September 1999.

15 In this context, see Cambodia: Judiciary on Trial, New York/London, 20 June 2001, Press Release by Amnesty International and Human Rights Watch.

16 Human Rights Watch, Cambodia, World Report 2001.

17 See the reports cited in note 14. A new draft criminal procedure code is being drafted with French assistance.

18 Art. 55: “In cases where the committed crime or misdemeanor is exceptionally serious, the prosecutor shall inform immediately the General Prosecutor at the Appeal Court and the Minister of Justice. The prosecutor shall carry out the instruction he/she receives from them in this matter.”

19 See, however, the discussion on the 1999 Law on Duration of Pretrial Detention discussed at the end of the article.

20 See, for example, Basil Fernando, Problems Facing the Cambodian Legal System, 1998, Asian Human Rights Commission and Human Rights Watch, Cambodia, World Report 2001, 2000,1999.

21 Op. cit. (note 10), Art. 9.

22 In 1960, the UN General Assembly declared East Timor to be a non-self- governing territory administered by Portugal. UNGA Res. 1542(XV).

23 See Kohen, Arnold and Taylor, John, An Act of Genocide: Indonesia's Invasion of East Timor, Tapol, London, 1979Google Scholar; Taylor, John, East Timor: The Price of Freedom, Zed Books, London, 1999Google Scholar; Clark, Roger, “Does the Genocide Convention go far enough? Some thoughts on the nature of criminal genocide in the context of Indonesiaés invasion of Timor”, Ohio Northern University Law Review, Vol. 8, 1981, p. 321Google Scholar.

24 Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726, S/2000/59 (2000) (Report of the International Commission of Inquiry).

25 Special Rapporteur of the Commission on Human Rights on Extrajudicial, Summary or Arbitrary Executions, Special Rapporteur of the Commission on the Question of Torture and Special Rapporteur of the Commission on Violence against Women, Its Causes and Consequences. Their common report is contained in the Report submitted by the Secretary-General to the General Assembly on the Situation of Human Rights in East Timor, UN Doc. A/54/660 (1999) (Report of the Special Rapporteurs).

26 Ibid., paras 135–142; KPP-HAM, Report on the Investigation of Human Rights Violations in East Timor (2000), paras 22, 60. Only an Executive Summary of this report has been officially made public in English: Embassy of Indonesia, Ottawa, Canada, Doc. No. BB-451/DEP/030300, <http://www.indonesiaottawa.org/news/lssue/HumanRights/ham-kpp-timtitn-o1312000.htm>.

27 Nicaragua v. USA, I.C.J. Reports 1986, pp. 64–65.

28 Report of the Special Rapporteurs para. 72.

29 The Prosecutor v. Joni Marques et al [nine others], Case No. 09/2000, Judgment, 11 December 2001.

30 Report of the International Commission of Inquiry, para. 153.

31 Ibid., para. 74. — TNI: Indonesian Armed Forces.

32 Ibid., para. 73.

33 Ibid., para. 150.

34 UNTAET Regulation No. 2000/11 on the Organization of Courts in East Timor (promulgated 6 March 2000), Official Gazette of East Timor, UNTAET/GAZ/2000/Add.1 (Regulation 2000/11); and UNTAET Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15 (entered into force on 6 June 2000), Official Gazette of East Timor, UNTAET/GAZ/2000/Add. 3, 99 (Regulation 2000/15).

35 On 20 June 2001, East Timor's National Council passed a resolution calling for the creation of an international tribunal. See “East Timor National Council sets up truth commission to probe rights violations”, UN Department of Public Information, 20 June 2001. For a minority view in favour of amnesties see “Human rights tribunal not a priority: Gusmao”, Jakarta Post, 20 April 2001.

36 Op. cit. (note 33).

37 Ibid.

38 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1.

39 See Report of the Security Council Mission to East Timor and Indonesia, UN Doc. 5/2000/1105 (2000), para. 8, and concerns voiced by the Security Council when extending UNTAET's mandate to 31 January 2002, UN Doc. S/RES/1338 (2001). See also Report of the High Commissioner for Human Rights on the situation of human rights in East Timor, UN Doc. E/CN.4/2001/37, para. 13.

40 Although there are many media reports highlighting the problems of the criminal justice system, in particular the Serious Crimes project, there have been few substantive examinations. Among these are the reports of Amnesty International, in particular East Timor: Building a New Country based on Human Rights, 2000, and East Timor: justice Past, Present and Future, 2001. The author's studies, op. cit. (note 2), and Judicial System Monitoring Programme, “Justice in Practice: Human Rights in Court Administration”, JSMP Thematic Report 1, November 2001.

41 JSMP Thematic Report 1, op. cit. (note 40).

42 Between 1 January and 31 August 2001, the Special Panel rendered decisions in 12 cases. There were ten convictions with sentences ranging from 4 to 15 years imprisonment and two dismissals (currently on appeal). There have been no acquittals. Source: Judicial System Monitoring Program me, Dili, East Timor.

43 Judicial System Monitoring Programme, Justice in Practice: Human Rights in Court Administration, JSMP Thematic Report 1, November 2001.

44 See Prosecutor v. Joseph Leki, Judgment of the Special Panel, 11 June 2001, Case No. 5/2000, p. 7.

45 It is also possible that this may reflect Regulation 2000/15's inadequacy for use in prosecuting atrocities committed over a 24-year-long period in accordance with international standards.

46 <http://www.un.org/apps/news/story.asp?NewsID=2829‖Cr=cambodia‖Cn=court>.

47 Statement by UN Legal Counsel Hans Corell at a press briefing at UN Headquarters in New York, 8 February 2002, <un.org/News/dh/infocus/Cambodia/corell-brief.htm>, quoted in Ibid.

48 East Timor has recently established a Truth and Reconciliation Commission to deal with atrocities committed between 1975 and 1999 during the period of occupation by Indonesia. The Commission is expected to operate for at least 2 years and work in conjunction with the East Timorese judicial system. While the Commission will deal with more minor offences, cases dealing with serious offences such as rape and murder will be passed on for prosecution to the Special Panels.

49 The Law on Extraordinary Chambers creates an Office of Administration, but the duties of its Director are only stated as being to oversee the work of the staff of the Chambers and Offices of the Co-Investigating Judges and Co-Prosecutors.

50 The two were charged by the military court in Phnom Penh with violating the 1994 Law Outlawing the Democratic Kampuchea Group, and with genocide under a Vietnamera 1979 law whose compliance with intemational standards of justice was suspect. Human Rights Watch and other human rights organizations questioned the legality of the involvement of the military court, since neither had served in the Royal Cambodian Armed Forces.