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Two for the Price of One: Attempts by the Extraordinary Chambers in the Courts of Cambodia to Combine Retributive and Restorative Justice Principles

Published online by Cambridge University Press:  01 March 2009

BRIANNE N. MCGONIGLE
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Abstract

This article illustrates how the ECCC is struggling to combine successfully two distinct institutional responses to crimes, by being both a criminal tribunal, with its formal rules of procedure and focus on retributive justice, and a quasi-truth and reconciliation commission, with its more flexible approach to participatory rights for victims and focus on reconciliation. The article highlights the advantages and challenges of adopting a ‘two for the price of one’ model within the Cambodian context and uses the experiences of the ECCC to underscore important lessons for future ad hoc and hybrid courts.

Keywords

Cambodiainternational criminal lawrestorative justicetruth and reconciliation commissionsvictims
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 22 , Issue 1 , March 2009 , pp. 127 - 149
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 Extraordinary Chambers in the Courts of Cambodia (ECCC), Internal Rules, as revised 1 February 2008, available at www.eccc.gov.kh/english/cabinet/fileUpload/27/Internal_Rules_Revision1_01-02-08_eng.pdf.

2 Specifically the Court has personal jurisdiction over senior leaders of Democratic Kampuchea and those most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia that were committed between 17 April 1975 and 6 January 1979. See Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea (hereinafter UN–Cambodia Agreement), 6 June 2003, available at www.eccc.gov.kh/english/cabinet/agreement/5/Agreement_between_UN_and_RGC.pdf, Arts. 1–2. On the history of discussions between Cambodia and the United Nations see Donovan, D. K., ‘Joint UN–Cambodia Efforts to Establish a Khmer Rouge Tribunal’, (2003) 44 Harvard International Law Journal 551Google Scholar.

3 See UN–Cambodia Agreement, supra note 2.

4 See Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (hereinafter ECCC Law), with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), available at www.eccc.gov.kh/english/cabinet/law/4/KR_Law_as_amended_27_Oct_2004_Eng.pdf.

5 UN–Cambodia Agreement, supra note 2, Art. 12(1), which states that ‘the procedure shall be in accordance with Cambodian law’.

6 Rather than being merely witnesses for the prosecution as is the case at the ad hoc tribunals or being participants in the proceedings as is the case at the International Criminal Court (ICC), victims at the ECCC may participate in the criminal proceedings as civil parties.

7 M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998), 25.

8 See E. Stover, The Witnesses: War Crimes and the Promise of Justice in The Hague (2005).

9 M. Dembour and E. Haslam, ‘Silencing Hearing? Victim-Witnesses at War Crimes Trials’, (2004) 15 EJIL 151, at 152.

10 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (hereinafter Victims Declaration), UN Doc. GA Res. 40/34 (1985).

11 Ibid., at para. 1.

12 Ibid., at para. 2.

13 See Situation in the Democratic Republic of Congo, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04-101-tEN-Corr, Pre-T.Ch. I, 17 January 2006, paras. 115, 131, 145, 161, 172, 182; see also The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial State of the Case, ICC-01/04-01/07, Pre-T.Ch. I, 13 May 2008 (hereinafter Katanga, Decision), nn. 80–1 and The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06–1432, App. Ch., 11 July 2008 (hereinafter Dyilo, Judgment), paras. 26–27.

14 The Special Tribunal for Lebanon also allows victim participation. Art. 17 of its Statute, based on Art. 68(3) of the ICC Statute, provides that ‘where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. Additionally, Art. 25 of the Statute allows victims to bring a civil action in a national court to obtain compensation similar to provisions found in the ICTY and ICTR Statutes.

15 Katanga, Decision, supra note 13, at paras. 45–50. The ICC makes a distinction between the procedural rights of anonymous and non-anonymous victims.

16 The Prosecutor v. Thomas Lubanga Dyilo, Decision on victims’ participation, No. ICC-01/04-01/06-1119, Tr. Ch. I, 18 January 2008, para. 108.

17 Ibid.

18 Ibid. at para. 117.

19 Ibid. at para. 111.

20 See Dyilo, Judgment, supra note 13, at para. 2.

21 Ibid., at paras. 3–4.

22 El Salvador, Guatemala, Somalia, the former Yugoslavia, Rwanda, South Africa, and Sierra Leone have all created some form of truth and reconciliation commission; see Scharf, M.P., ‘The Case for a Permanent International Truth Commission’, (1997) 7 Duke Journal of Comparative & International Law 375, at 377–9Google Scholar.

23 C. Stahn, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’, (2001) 95 AJIL 952, at 954.

24 G. J. Knoops, ‘Truth and Reconciliation Commission Models and International Tribunals: A Comparison’, speech delivered at the symposium on ‘The Right to Self-Determination in International Law’ organized by Unrepresented Nations and Peoples Organization (UNPO), Khmers Kampuchea-Krom Federation (KKF), Hawaii Institute for Human Rights (HIHR), The Hague, 22 September–1 October 2006.

25 For example, the South African Truth and Reconciliation Commission's mandate was to facilitate national reconciliation (1995–8). See South African Promotion of National Unity and Reconciliation Act (1995), available at www.doj.gov.za/trc/legal/act9534.htm.

26 Minow, supra note 7, at 57.

27 P. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001), 155.

28 Sierra Leone Truth and Reconciliation Commission Act 2000, available at www.usip.org/library/tc/doc/charters/tc_sierra_leone_02102000.html, section 6(1).

29 W. A. Schabas, ‘Conjoined Twins of Transitional Justice? The Sierra Leone Truth and Reconciliation Commission and the Special Court’, (2004) 2 Journal of International Criminal Justice 1082, at 1084.

30 Ibid., at 1088.

31 UNTAET Regulation 2001/10, On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor (July 13, 2001). UNTAET Regulations are online at www.un.org/peace/etimor/untaetR/UntaetR.htm. Although the UN actively supported the establishment of truth and reconciliation processes in a number of situations, including in El Salvador, Haiti, Guatemala, and Sierra Leone, the CRTR marked the first time it acted as the formal founding authority. See Stahn, supra note 23, at 956.

32 UNTAET Resolution 2000/15, On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000).

33 UNTAET Regulation 2001/10, supra note 31, at sections 2(2), 3(1)(c), and 13(1).

34 Commission for Reception, Truth and Reconciliation in East Timor, Final Report, 30 January 2006, available at www.ictj.org/en/news/features/846.html.

35 UNTAET Regulation 2001/10, supra note 31, Sections 3(1)(e) and 38.

36 See P. Pigou, ‘Crying without Tears: In Pursuit of Justice and Reconciliation in Timor-Leste’, Report for the International Center for Transitional Justice, August 2005, available at www.ictj.org/images/content/0/9/096.pdf; see also C. Reiger and M. Wierda, ‘The Serious Crimes Process in Timor-Leste: In Retrospect’, Report for the International Center for Transitional Justice, March 2006, available at www.ictj.org/static/Prosecutions/Timor.study.pdf, 34–5.

37 Stahn, supra note 23, at 954.

38 Ibid., at 955.

39 See L. Dobbs, ‘UN Official Calls for Cambodian Truth Commission’, Reuters News, 6 February 1997; on the history of discussions between Cambodia and the United Nations see also Donovan, supra note 2.

40 Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135, UN Doc. A/53/850 of 16 March 1999.

41 M. Zwanenburg, ‘Much Truth about Truth Commissions’, review of Hayner, P. B., Unspeakable Truths: Confronting State Terror and Atrocity (2002), (2003) 3 Human Rights and Human Welfare 125, at 130Google Scholar.

42 Acquaviva, G., ‘New Paths in International Criminal Justice?’ (2008) 6 Journal of International Criminal Justice 129, at 132CrossRefGoogle Scholar.

43 ECCC Internal Rules, supra note 1, Rule 49.

44 Ibid., Rule 50.

45 Ibid., Rule 53(1) and (2).

46 Ibid., Rule 53(2) and (4).

47 Acquaviva, supra note 42, at 135.

48 ECCC Internal Rules, supra note 1, Rule 55(2) and (3).

49 Ibid., Rule 55(4).

50 Ibid., Rule 55(10).

51 Ibid., Rule 66(1), providing that all parties may request an additional 15 days of investigation; Rule 66(2) and (3), providing that a denial of further investigations may be appealed to the Pre-Trial Chamber.

52 ECCC Law, supra note 4, Art. 9.

53 Ibid.

54 See de Bertodano, S., ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers’, (2006) 4 Journal of International and Comparative Law 285Google Scholar.

55 ECCC Law, Art. 14.

56 ECCC Internal Rules, supra note 1, Rule 71.

57 See Statement of the Co-Prosecutors, deciding to appeal against the Closing Order of 8 August 2008 indicting Kaing Guek Eav for crimes, available at www.eccc.gov.kh/english/cabinet/courtDoc/121/2008-08-21_OCP_Statement.pdf.

58 ECCC Internal Rules, supra note 1, Rule 63, which provides that Co-Investigative Judges may, after an ‘adversarial hearing’ between the charged person and the Co-Prosecutors (but not civil parties), issue orders concerning the provisional detention of charged persons.

59 See M. E. I. Brienen and E. H. Hoegen, Victims of Crime in 22 European Criminal Justice Systems (2000), 1069.

60 Doak, J., ‘Victims’ Rights in Criminal Trials: Prospects for Participation’, (2005) 32 Journal of Law and Society 294, at 311CrossRefGoogle Scholar.

61 See Brienen and Hoegen, supra note 59. Civil law jurisdictions include France, Spain, and Germany; common law jurisdictions include England and Wales.

62 Ibid., at 78 and 137.

63 Ibid., at 79.

64 Ibid.

65 Ibid., at 80 and 364.

66 See generally ibid.

67 Ibid., at 297–347, critically examining the partie civile and citation directe system.

68 D. Boyle, ‘The Rights of Victims: Participation, Representation, Protection, Reparation’, (2006) 4 Journal of International Criminal Justice 307, at 310.

69 Ibid.

70 Ibid. One limitation found in Cambodian law, as compared with the ICC, is that only direct victims may participate.

71 Ibid., citing Projet de code de procédure pénale (Phnom Penh: Mission d'assistance technique française, 25 February 2005), Draft Art. L.131–5–7 (CCP).

72 Ibid., at 309. However, these trials are widely acknowledged to be highly public political show trials in which both Pol Pot and Ieng Sary were convicted in absentia and sentenced to death.

73 Acquaviva, supra note 42, at 140.

74 The ECCC has jurisdiction over genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and crimes against internationally protected persons pursuant to the Vienna Convention of 1961 on Diplomatic Relations. See ECCC Law, supra note 4, Arts. 2, 4, 5, 6, 7, and 8.

75 ECCC Internal Rules, supra note 1, Rule 23(2).

76 Ibid., Rule 23(3) and (4); see also Rule 82(2). Victims applying to participate during the trial stage will have their applications reviewed by the trial chamber.

77 Ibid., Rules 23(6), (7), (8) and (9).

78 Boyle, supra note 68, at 308

79 ECCC Internal Rules, supra note 1, Rule 23(1)(a).

80 Ibid., Rule 23(8).

81 Ibid.

82 Ibid., Rule 23(11).

83 Ibid.

84 Ibid., Rules 23(11) and (12).

85 See Nuon Chea case, Pre-T.Ch., Decision on Civil Party Participation in Provisional Detention Appeals, Case No. 002/19-09-2007-ECCC/OCIJ (PTC01) (hereinafter Civil Party Participation Decision), 20 March 2008.

86 Ibid., at para. 36.

87 Ibid., at paras. 29 and 38, citing the Cambodian Criminal Procedural Code, Arts. 259–60.

88 ECCC Law, supra note 4, Art. 33(new), providing that if the existing procedural rules do not deal with a particular matter or if there is uncertainty regarding interpretation or application, then guidance may be sought in procedural rules established at the international level.

89 Civil Party Participation Decision, supra note 85 (nowhere in the decision does the Court mention the need to show how the victims’ personal interests are affected).

90 For a critical look at the Court's reasoning see C. Ryngaert, ‘The Cambodian Pre-Trial Chamber's Decisions in the Case against Nuon Chea on Victims’ Participation and Bias: A Commentary’, (2008), The Hague Justice Portal, n. 31, available at www.haguejusticeportal.net/Docs/Commentaries%20PDF/Ryngaert_NuonChea_EN.pdf.

91 UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure, as amended by UNTAET Regulation 2001/25 of 14 September, section 12(3) and (5).

92 Acquaviva, supra note 42, at 140, except that victims cannot request individual reparations.

93 Civil Party Participation Decision, supra note 85, at para. 49.

94 S. Thomas, ‘Civil Party's Repeated Attempts to Address Bench and Poor Management of Proceedings Force Worrying Precedent for Victim Participation before the ECCC’, 4 July 2008, available at http://ecccreparations.blogspot.com/2008/07/civil-partys-repeated-attempts-to.html.

95 Ibid.

96 See Civil Party Participation Decision, supra note 85.

97 Ibid., at para. 49.

98 Ibid., at para. 7.

99 ECCC Internal Rules, supra note 1, Rule 23(1)(b).

100 However, Sierra Leone also had a voluntary trust fund established to aid victims and victims’ groups.

101 T. Klosterman, ‘The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little? Too Late?’, (1998) 15 Arizona Journal of International and Comparative Law 833, at 857.

102 See website for the Documentation Center of Cambodia, available at www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/Victim_Participation.htm.

103 A. Nette, ‘Locus Standi for Victims at Khmer Rouge Trials?’, Inter Press Service, 25 March 2008, available at http://ipsnews.net/news.asp?idnews=41717.

104 Klosterman, supra note 101, at 860, noting that virtually all senior leaders of Hun Sen's government had been Khmer Rouge officials during the Democratic Kampuchea regime.

105 In November 2008 Germany donated €1.5 million (US$1.9 million) to the Victims Unit of the Court in an effort to help the Court process the growing number of victim applications.

106 ‘Court Rocked by New Corruption Allegations’, Phnom Penh Post, 5 August 2008, available at www.phnompenhpost.com/index.php/component/option,com_myblog/Itemid,149/show,Court-rocked-bynew-corruption-allegations.html/.

107 Phnom Penh Post, ‘U.S. Promises $1.8 million to KRT’, blog, 16 September 2008, available at www.phnompenhpost.com/index.php/component/option,com_myblog/Itemid,149/show,U.S.-promises-1.8million-to-KRT.html/.

108 Art. 64 of the Rome Statute of the International Criminal Court requires the Court to ensure that proceedings be conducted in ‘a manner that is fair and expeditious’. See Rome Statute of the International Criminal Court, Arts. 64(2), 64(3)(a), 67 (right to be tried without undue delay), adopted 17 July 1998 by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, entered into force 1 July 2002, UN Doc. A/CONF.183/9; see also International Criminal Court, Rules of Procedure and Evidence, Rule 101, ICC-ASP/1/3 (2002); see also International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force 23 March 1976, Art. 14(3)(c) (right to be tried without undue delay).

109 G. Wilkins, ‘Victims in Emotional Legal Limbo over Participation at the KR Trial’, Phnom Penh Post, 10 September 2008, available at www.phnompenhpost.com/index.php/2008091021597/National-news/Victims-in-emotional-legal-limbo-over-participation-at-the-KR-Trial.html. See also Nette, supra note 103.

110 ECCC Internal Rules, supra note 1, Rule 49(4).

111 Documentation Center of Cambodia, follow-up to article on the victim participation project: ‘Victims Still Waiting to Hear from Tribunal – Response Will Come’, available at www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/PDF/Victims_Still_Waiting_to_Hear_from_Tribunal%20-%20Response_Will_Come_Eng.pdf.

112 See Nette, supra note 103.

113 Minow, supra note 7, at 26.