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Establishing the responsibility of the Khmer Rouge leadership for international crimes1

Published online by Cambridge University Press:  17 February 2009

David Boyle
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Dragged reluctantly into the debate over Khmer Rouge accountability, the United Nations Secretariat has spent the last five years attempting to find a mutually acceptable judicial structure to try the leaders of the former government of Cambodia for international crimes committed between 1975 and 1979.

In response to a request for aid from the Cambodian government in June 1997, the UN originally came down in favour of establishing a third ad hoc International Criminal Tribunal. Taking that proposal as a starting point, this paper documents the series of events leading the Organisation towards unwilling participation in potentially unjust domestic trials after Cambodia's refusal of the UN proposal. Each time the negotiations seemed to have broken down, the UN and Cambodia came under pressure from certain Member States to return to the negotiating table. Beset with its responsibility in supporting the Khmer Rouge after the Vietnamese invasion in 1979, the UN compromised successively concerning the nature of the court (part 3) and its structure (part 4). A consensus finally seemed to have been reached in July 2000, when a UN negotiating team left Phnom Penh with a draft Memorandum of Understanding concerning ‘significant international co-operation’ in trials before ‘Extraordinary Chambers’ of the Cambodian courts (the ‘draft MOU’). However, the law finally promulgated on 10 August 2001 in order to set up these Chambers (the ‘Tribunal Law’) was not entirely consistent with the terms of the draft MOU, the exact legal status of which then became a bone of contention (part 5).

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Yearbook of International Humanitarian Law , Volume 5 , December 2002 , pp. 167 - 218
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Copyright © T.M.C. Asser Instituut and the Authors 2002

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References

3. Royal Government of Cambodia, Letter to the UN Secretary-General dated 21 June 1997 from Prince Norodom Ranariddh and Hun Sen, text reproduced in the Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/125, 18 February 1999, UN Doc. A/53/850, 16 March 1999, Annex, para. 5, unofficial copy available at <http://www.camnet.com.kh/ngoforum/un-report.htm>

4. This paper does not relate in detail the evolving internal and international approaches to Khmer Rouge crimes leading up to the Cambodian request for UN aid, as they have already been recorded in an earlier volume of the Yearbook: see Rajagopal, B., ‘The Pragmatics of Prosecuting the Khmer Rouge’, 1 YIHL (1988) pp. 189 at 190 et seq.CrossRefGoogle Scholar; see also Boyle, D., ‘Quelle justice pour les Khmers rouges ?’, 40 Revue trimestrielle des droits de l'homme (1999) pp. 773 at 774 et seqGoogle Scholar.

5. Unofficial copy available at <http://www.yale.edu/cgp/tribunal/mou_v3.htm>

6. Cambodia, Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Kram NS/RKM/0801/12, 10 August 2001), official translation available at <http://www.ocm.gov.kh/krt> as promulgated (English translation 6 September 2001) pdf, unofficial copy also available at <http://www.ridi.org/boyle/kr_law_10-08-02.htm>

7. Draft 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, 17 March 2003, Report of the Secretary-General on Khmer Rouge trials, UN Doc. A/57/769, 31 March 2003.

8. For an analysis of the specificity of international courts, see Ascensio, H., ‘La notion de juridiction internationale en question’, in La juridictionnalisation du droit international, 36e Colloque de la Société française pour le droit international, Lille 13–14 09 2002 (forthcoming Paris, Pedone)Google Scholar.

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11. On the importance of ‘Truth’ in cases of ‘disappearance’ type crimes, see Malarino, E., ‘Argentina: the Difficult Reconstruction of Truth’, Judicial Diplomacy (09 2002)Google Scholar.

12. On the ‘expressive’ function of international criminal justice, see Amann, D., ‘Group Mentality, Expressivism, and Genocide’, 1 ICLR (2002) pp. 117–131Google Scholar.

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15. This initiative grew out of a Yale University program run by Benedict Kiernan, funded through United States federal legislation, the Cambodia Genocide Justice Act, (11 USC 2656, Part D, sections 571–574), May 1994, available at <http://www.yale.edu/cgp>.

16. For a long time, commentators simply assumed that Cambodians wanted to see justice done. This certainly seems to be true of many diaspora Cambodians, many of whom fear to return to Cambodia to live until the Khmer Rouge have been tried. Some have even taken partie civile action under Belgian universal jurisdiction legislation. More recently, limited surveying undertaken in Cambodia shows more mitigated support: while a majority would like to see the Khmer Rouge brought to justice, they are not prepared to do so if there is a serious risk of renewed conflict: see e.g., Justice and Cambodia: A Collective Inquiry, Cambodian Genocide Program, Yale University, available at <http://www.yale.edu/cgp> as well as ‘Leaders of Civil Society speak out’, Marcher, A. and Soeum, Y., ‘Khieu Samphan wants to go public’, Phnom Penh Post (4–17 02 2000) Issue 9/3Google Scholar, and ‘Truth, justice, reconciliation, peace: the KR 20 years after — Summary of Research Results’, Phnom Penh Post (18 02–2 03 2000) Issue 9/4Google Scholar, available on subscription at <http://www.phnompenhpost.com/>.

17. See e.g., NGO Forum on Cambodia, Statement In Support of an International Tribunal (Phnom Penh, 4 12 1998)Google Scholar, available at <http://www.bigpond.com.kh/users/ngoforum/: ‘A UN-sponsored tribunal could … provide some useful tools for reflection and reconciliation among Cambodian people… A free and fair adjudication of the crimes committed by the Khmer Rouge is essential to resolving the heritage of suffering which is so pervasive in Cambodia today. Under Khmer Rouge rule the very fabric of Cambodian society was systematically destroyed … Adjudication by an international tribunal would help to accelerate the resurrection of Cambodian society by serving to re-establish a sense of justice and personal accountability.’

18. Amnesty International, Kingdom of Cambodia, Accountability for gross human rights violations: Open Letter to King Sihanouk and the National Assembly (Report AS A 23/10/96, 11 September 1996), available at <http://www.amnesty.org/>: ‘Amnesty International recognises and appreciates the need for national reconciliation in Cambodia. However, the organization believes that any conciliatory steps which are taken independent of an effort to identify and hold accountable those responsible for human rights violations in the past, may seriously jeopardise human rights protection in the future.’

19. On the treatment of this problem in the context of the South African Truth and Reconciliation Commission, see Dugard, J., ‘Is the Truth and Reconciliation Process Compatible with International Law? An Unanswered Question’, Cases and Comments: Azapo v. President of the Republic of South Africa, 13 South African Journal on Human Rights (1997) p. 258Google Scholar.

20. Richburg, K.B., ‘A Small Apology to the Dead: For Nearly 2 Million Killed, “Let Bygones Be Bygones”’, The Washington Post (30 12 1998)Google Scholar. Only Duch has indicated his willingness to testify concerning his role in the Tuol Sleng torture facility: see Johnson, K., ‘Torture camp survivor willing to testify’, South China Morning Post (16 03 2000)Google Scholar.

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22. ICJ, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, para. 61, available at <http://www.icj-cij.org; Art. 27(2) of the Rome Statute of the International Criminal Court expressly provides, that ‘[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’ (UN Doc. A/ CONF.183/9, 17 July 1998), available at <http://www.un.org/law/icc/.

23. See Akhavan, loc. cit. n. 9, at p. 21.

24. UN Doc. S/RES/1329, 30 November 2000, preamble.

25. ICTR, Trial Chamber, Prosecutor v. Kambanda, Case No. ICTR 97–23-S, Judgement and Sentence, 4 September 1998, para. 28, available at <http://www.ictr.org/.

26. See Akhavan, loc. cit. n. 9, at pp. 12–13.

27. Amann, loc. cit. n. 12, at pp. 115–116.

28. On the effects of randomness and selectivity, see Amann, ibid., at pp. 116–117.

29. Akhavan, loc. cit. n. 9, at p. 10.

30. Massacres of civilians, disappearances, torture, arbitrary arrest and massive population movements; see e.g., Burundi, Between Hope and Fear, Amnesty International (AI Index: AFR 16/007/01, March 2001), a summary of this and other Amnesty reports on Burundi is available at <http://www.amnesty.org/ailib/index.html; however, Burundi now having ratified the Rome Statute [AFP, 22 April 2003], such crimes may now be brought before the ICC.

31. Amann, loc. cit. n. 12, at p. 114.

32. This was certainly the case for the 1979 trial of the ‘Pol Pot/leng Sary clique’, see infra part 3.4.

33. See United Nations Charter, Chapter VII, esp. Art. 39.

34. For further information regarding the structure and mandate of the Human Rights Field Presence in Cambodia, see <http://www.unhchr.ch/html/menu2/5/cambodia.htm>; see also <http://www.un.org.kh/uncohchr/>.

35. Formerly, ICORC (International Committee for the Reconstruction of Cambodia).

36. See e.g., ‘Human Rights Agenda for Cambodian Donors’, Human Rights Watch (Press release 2000/05, New York, 23 05 2000)Google Scholar, <http://www.hrw.org/press/2000/05/camb0523.htm>.

37. Adhoc — Licadho — Human Rights Watch, Impunity in Cambodia: How Human Rights Offenders Escape Justice (HRW Report, Vol. 11/3(C), June 1999), available at <http://www.hrw.org/re-ports/1999/cambo2/>: ‘Cambodia's culture of impunity starts with the fact that no Khmer Rouge leader has been called to account for crimes against humanity committed from 1975 to 1979.’

38. Akhavan, loc. cit. n. 9, at p. 10.

39. See infra part 3.4.3.

40. For France, see Vogler, R., ‘Criminal Procedure in France’, in Hatchard, J., Huber, B. and Vogler, R., eds., Comparative Criminal Procedure (London, The British Institute of International and Comparative Law 1996) pp. 25–27Google Scholar; for the United States, see the Alien Tort Claims Act, 28 U.S.C.A. § 1350 (2001) and the Torture Victim Protection Act, 28 U.S.C.A. § 1350 note (2001).

41. Garapon, A., in Garapon, A. et al. , eds., Et ce sera justice, Punir en démocratie (Paris, Odile Jacob 2001) pp. 268–272Google Scholar.

42. DrReichmann, , ‘Sequelles psychologiques des rescapes’, in khmers rouges: jugés ou impunis?, Conference organised by the Comité des victimes des Khmers rouges,Paris,23 March 2002 (forthcoming)Google Scholar.

43. ICTY Statute, UN Doc. S/RES/827 (1993), 25 May 1993, Annex, Art. 24(3); ICTR Statute, UN Doc. S/RES/955 (1994), 8 November 1994, Art. 23(3). The Tribunals may exercise this power ‘[a]fter a judgment of conviction’ containing a specific finding of ‘unlawful taking of property by the accused’. ICTY, Rules of Procedure and Evidence (adopted 11 February 1994 as amended, UN Doc. IT/32/REV), available at: <http://www.un.org/icty/basic.htm>, Rule 105; ICTR Rules of Procedure and Evidence (adopted 5 July 1995 as amended), available at: <http://www.ictr.org>, Rule 105.

44. ICTY Rules, ibid., Rule 106(B); ICTR Rules, ibid. Rule 106(B) [emphasis added]. The only advantage is that under sub-rule (C), ‘[f]or the purposes of a claim made under Sub-rule (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.’

45. UN Sub-Commission, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117 (UN Doc. E/CN.4/Sub.2/1996/17, 24 05 1996), esp. paras. 4 and 7Google Scholar.

46. Garapon, loc. cit. n. 41.

47. Hammarberg, T., Special Representative of the UN Secretary-General for Cambodia, in UN Information Service, Commission on Human Rights Starts Debate on Advisory Services and Technical Cooperation in Field of Human Rights (UN Press Release HR/CN/928, Geneva, 22 04 1999) p. 9Google Scholar, available at <http://www.un.Org/News/Press/docs/1999/19990422.hrcn928.html>.

48. UN Human Rights Commission, Human Rights Situation in Cambodia (UN Doc. E/CN.4/RES/1997/49, 11 April 1997), para. 12, available at <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.1997.49.en?Opendocument>.

49. Letter to the UN Secretary-General dated 21 June 1997, supra n. 3.

50. Ibid.

51. Rajagopal, loc. cit. n. 4, p. 192, fn. 11.

52. Report of the Secretary-General: Situation of human rights in Cambodia (UN Doc. A/52/489, 17 October 1997), paras. 63–64.

53. Ibid., para. 67.

54. UN Doc. A/RES/52/135, 12 December 1997, para. 16.

55. Concerning this visit, see Human Rights Watch, World Report 1999 – Cambodia, available at <http://www.hrw.org/worldreport99/asia/cambodia.html>.

56. Arts. 11–12 of the Constitution of 24 September 1993, as amended by Kram [law] No. NS/KRM/0399–01, 8 March 1999, available at <http://www.bigpond.com.kh.>

57. The campaign period was relatively peaceful when compared with the previous 12 months, but was marred by a number of political killings and attacks, and a lack of free access to the electronic media for the opposition. The Joint International Observer Group (a UN-coordinated body of 37 countries) expressed its satisfaction with the election process on 27 July less than 48 hours after the polls had closed and well before the counting process was complete.

58. The crisis came to a head between 7 and 15 September 1998, when largely peaceful demonstrations organised by opposition leaders and Buddhist monks in front of the National Assembly in Phnom Penh were crushed by the authorities with excessive use of force. At least two people were killed by government security forces or their agents during the unrest, with another 24 deaths under investigation by the COHCHR: Amnesty International, Kingdom of Cambodia – Demonstrations Crushed with Excessive use of Force (AI Report – ASA 23/26/98, 22 September 1998), available at <http://www.amnesty.org/; see also, United Nations, Statement by Ambassador Thomas Hammarberg, Special Representative of the United Nations Secretary General for Human Rights in Cambodia, New York, 16 September 1998.

59. A Bill was even introduced into US Congress on 21 September 1998, just before the beginning of all-party talks aimed at setting up a new coalition, aimed at trying Hun Sen for crimes against humanity in relation to his suppression of the peaceful demonstrations after the elections.

60. However, because the President of the National Assembly acts as Head of State when the King is absent, it was also agreed to create a Senate, purely for the purpose of transferring this executive duty to its President.

61. The UN General Assembly's Credentials Committee accepted the representatives of the new coalition government on 7 December 1998.

62. The last forces surrendered or were captured in December 1998 (Ta Mok).

63. ‘Hun Sen Discusses Khmer Rouge Trial’, Associated Press (3 12 1998)Google Scholar.

64. Fontaine, C., ‘Cambodia Premier Says No to Trial’, Associated Press (28 12 1998)Google Scholar.

65. Watkin, H., ‘Irony not lost as Hun Sen “buries” the past’, South China Morning Post (30 12 1998)Google Scholar.

66. Brunnstrom, D., ‘Sihanouk Won't Grant More Khmer Rouge Amnesties’, Reuters, (30 12 1998)Google Scholar.

67. Royal Government of Cambodia (RGC), ‘An Analysis on Seeking a Formula for Bringing Top Khmer Rouge Leaders to Trial’, Aide mémoire handed to the Special Representative for the Secretary-General, Thomas Hammarberg, Phnom Penh, 21 01 1999Google ScholarPubMed.

68. See e.g., Thaitawat, N. et al. , ‘Hun Sen: leng Sary trial will bring war – Prosecution Means end of Royal Amnesty’, Bangkok Post (10 01 2001)Google Scholar.

69. Report of the UN Group of Experts, supra n. 3, para. 219(1).

70. RGC, Aide mémoire on the Report of the United Nations Group of Experts for Cambodia, 12 March 1999 (UN Doc. A /;53/866, 18 March 1999, Annex). The ‘law in force’ referred to was undoubtedly the 1994 Law outlawing the Khmer Rouge.

71. ‘Hun Sen Discusses Khmer Rouge Trial’, Associated Press (3 12 1998)Google Scholar.

72. ICTY Rules, supra n. 43, Rule 61, ‘Procedure in Case of Failure to Execute a Warrant’.

73. ‘Cambodia “best suited” for trying Khmer Rouge’, (Bangkok) The Nation (24 11 1998)Google Scholar.

74. See Prosecutor v. Duško Tadić Alias “Dule”, (Case IT-94–1-T, 2 October 1995) Decision on Defence Motion for Interlocutory Appeal on Jurisdiction; and Prosecutor v. Joseph Kanyabashi, (Case ICTR-96–15-T, 18 June 1997) Decision on the Defence Motion on Jurisdiction.

75. Brunnstrom, D., ‘China declines comment on Khmer Rouge trial veto’, Reuters (5 02 1999)Google Scholar.

76. Chhang, Y., ‘China's Advice Interferes with Sovereignty’, The Cambodia Daily (30 06 1999)Google Scholar.

77. E.g., the current move to transfer some ICTY cases to the Bosnian courts; see ‘Delocalization of Cases: The Security Council Declares its Support’, Judicial Diplomacy (24 07 2002)Google Scholar.

78. This was a driving force, for example, behind the choice of a Special Court for Sierra Leone to be paid for out of voluntary contributions.

79. Report of the UN Group of Experts, supra n. 3, paras. 185 et seq.

80. Nevertheless, the Aide Mémoire, supra n. 70, on the question of Khmer Rouge responsibility provided to the UN by Hun Sen in January 1999, before the Group of Experts handed down its report, mentions an ‘international’ or ‘mixed’ court.

81. Getti, J.-P. and Schabas, W., Violations des droits de l'homme au Cambodge: Justice et lutte contre l'impunité, FIDH (Rapport No. 284, 12 1999)Google Scholar, available at <http://www.fidh.org/IMG/pdf/284camb.pdf>, para. 2.4, [our translation].

82. Allied forces, Control Council Law No. 10 for Germany, 20 December 1945; on this proposal, see ‘U.N. Should Insist. on International Standards for Khmer Rouge Trial’, Human Rights Watch (Press release, New York, 24 08 1999)Google Scholar, available at: <http://www.hrw.org/press/1999/aug/camb0824.htm.>

83. Getti, J.-P., ‘Comment juger les Khmers Rouges ?’, 32 La Lettre de la FIDH (2000), 14 02 2000Google Scholar.

84. On US involvement in the negotiations, see Marcher, A., ‘The American role in putting together a KR trial deal’, Interview with US ambassador Kent Wiedemann, Issue 9/9, Phnom Penh Post (28 04-11 05 2000)Google Scholar, available on subscription at <http://www.phnompenhpost.com/>.

85. See infra part 4.1.

86. ‘Cambodia delays decision on genocide trial to Jan. 6’, Kyodo News Service (24 12 1999)Google Scholar.

87. F. Eckhard, Spokesman for the Secretary-General, Daily Press Briefing of Office of Spokesman for Secretary-General, United Nations, 6 January 2000.

88. Johnson, K., ‘Cabinet gives nod to “killing fields” trials’, South China Morning Post (7 01 2000)Google Scholar.

89. H. Corell, Press Briefing by United Nations Legal Counsel, United Nations, NY, 8 February 2000; see also Kea, Puy, ‘Ieng Sary seen as key obstacle for Khmer Rouge trial’, Kyodo News Service, 17 02 2000Google Scholar.

90. Corell, H., Head of the UN Delegation, Statement to the Press, Phnom Penh, 22 03 2000Google Scholar.

91. United Nations, Cambodia agree in writing on Khmer Rouge trial formula, Political Information Bulletin #1, 24 May 2000.

92. Supra n. 5; see also United Nations, Press Statement by H. Corell, Pochentong Airport, Phnom Penh, 7 July 2000.

93. Phnom Penh Post, Issue No. 9/22 (27 10-9 11 2000)Google ScholarPubMed, available on subscription at <http://www.phnompenhpost.com/>.

94. An unofficial translation of the bill adopted in January 2001 is available on the Cambodian National Assembly web-site at <http://www.cambodian-parliament.org/Legislative_Act_/legislative_act_.html>.

95. ‘Gephardt-led U.S. delegation arrives in Cambodian capital’, Associated Press (15 01 2001)Google Scholar.

96. See Boyle, D., ‘Trial in Cambodia, One More Step’, Judicial Diplomacy (5 08 2001)Google Scholar.

97. F. Eckhard, Daily Press Briefing by the Office of the Spokesman for the Secretary-General, United Nations, NY, 12 January 2001.

98. Supra n. 6.

99. Certain important passages are translated differently in the French and English official translations.

100. The earlier non-official translation of the bill adopted in January 2001, supra n. 94, does not incorporate all of the changes introduced during the negotiations.

101. See infra part 6.

102. The 2003 Agreement simplifies this structure, removing the intermediate appellate Chamber; see infra part 6.

103. While Art. 141 of the 1993 Cambodian Constitution (as amended, supra n. 56) provides for both a priori (before promulgation) and a posteriori (during litigation) constitutional review, it remains unclear whether the latter is available in cases where the law has already been declared constitutional before promulgation.

104. The Tribunal Law provided for three out of five judges at first instance; four out of seven appellate judges; and five out of nine before the Supreme Court; for the new system, see infra part 6.

105. This gave a voting formula of four out of five judges at first instance, five out of seven on appeal and six out of nine before the Supreme Court; for the new system, see infra part 6.

106. Draft MOU, supra n. 5, Art. 3(2), Tribunal Law, supra n. 6, Art. 14(2), 2003 Agreement, supra n. 7, Art. 4(2).

107. Translation provided by A. Daniel, Professor of Khmer at the Institut National des Langues et Civilisations Orientales, Paris. The precise term for the final decision concerning culpability is Sal-kram for the trial court and saldeyka for other courts.

108. For further details on the division of work under Cambodian Law, see Linton, S., ‘Cambodia, East Timor and Sierra Leone: experiments in international justice’, 12 Criminal LF (2001) pp. 185, at pp. 200–202Google Scholar.

109. A different Cambodian prosecutor is to be appointed for each Chamber, whereas only one foreign prosecutor will be named, with competence to appear in all three Extraordinary Chambers.

110. In early UN proposals, no international participation was envisaged at the crucial investigation stage, as it was assumed that the function would disappear, especially as the position is currently coming under fire from the domestic legal profession, increasingly composed of common law trained attorneys: see Statement of Participants at a Workshop on the reform of Administration of Justice Relating to Police in Cambodia, (Siem Riep, Cambodia, 22–24 01 2000)Google Scholar, organised by the Cambodian Defenders Project/IHRLG.

111. Tribunal Law, supra n. 6, Arts. 12, 21 and 26.

112. Ibid., Arts. 11, 18 and 26.

113. Tribunal Law, supra n. 6, Chapter IX.

114. The 2003 Agreement further strengthens this wording; see infra part 6.

115. Despite resistance from the Secretary-General, the 2003 Agreement remains unchanged; see infra part 6.

116. According to one report, estimates of costs for such a tribunal are about US$ 60 million over three years, a relatively low cost operation compared with the ad hoc tribunals; see ‘Cambodia: Road to Reconciliation? Cambodian and international efforts to address the legacy of the Khmer Rouge’, Oxford Analytica Asia Pacific Daily Brief (2 10 2001)Google Scholar; see also infra part 6.4.

117. See e.g., Report of the UN Group of Experts, supra n. 3, paras. 123–130.

118. The draft MOU reiterates this provision and adds that the rights of the accused set out in Art. 14 ICCPR shall be repected throughout the trials (Art. 11); the 2003 Agreement expands and reinforces these provisions, see infra part 6.3.

119. In particular, two divergent texts adopted during the UN peacekeeping operation still appear to be on the books: Supreme National Council, Provisions Dated September 10, 1992 Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period; and State of Cambodia, Kram [Law] dated 8 February 1993 on Criminal Procedure, both available at <http://www.bigpond.com.kh>.

120. Linton, loc. cit. n. 108, at p. 199.

121. UN Doc. GA Res. 2200 (1966), reprinted in 999 UNTS p. 171.

122. Pol Pot and Ieng Sary were tried in their absence in 1979, as was Prince Ranariddh in 1998 for collusion with the Khmer Rouge, under the 1994 Law Outlawing the movement. Although it is implicit in the general wording of the Tribunal Law that only those ‘[s]uspects who have been indicted and arrested shall be brought to the trial court…’ (supra n. 6, Art. 33), it is worth noting that the minimum guarantees set out in both Art. 35 of the Law and Art. 11 of the draft MOU omit the right ‘to be tried in his presence’ contained in Art. 14(4) ICCPR; it might thus be argued that the normal Cambodian in absentia procedure is not excluded: see State of Cambodia 1993 Law on Criminal Procedure, supra n. 119, Art. 111: ‘If the accused, who is properly summoned, does not appear in court the judgment shall be proceeded by default.’

123. 23. See e.g., Art. 15(1) ICCPR.

124. Amann, loc. cit. n. 12, at p. 117, speaking in the context of the ICTs.

125. Ibid., pp. 124–131.

126. However, the right to choose counsel does not necessarily imply the right to choose court-appointed counsel.

127. SNC, 1992 Provisions, op. cit. n. 119, Art. 10; and State of Cambodia, 1993 Law on Criminal Procedure, op. cit. n. 119, Arts. 75–78.

128. National Assembly of the Kingdom of Cambodia, debates on 2 January 2001 concerning Art. 24; unofficial English translation provided by the Documentation Center of Cambodia (copy on file with the author): this problem is resolved by express wording in the 2003 Agreement, see infra part 6.3.

129. For further reading see D. Boyle, Ending the Impunity of the Khmer Rouge: A Possible Role for the Victims? Available at <http://www.ridi.org/boyle/victims.htm.>

130. Indeed, it is difficult to see how those ‘victims’ having the right to appeal could be designated without some procedure akin to civil party intervention; this would also be in keeping with the ICT rules concerning civil proceedings before ‘national courts’, see supra n. 43, and accompanying text.

131. See State of Cambodia, 1993 Law on Criminal Procedure, supra n. 119, Art. 16: ‘The civil action may be filed together with the penal action at the same time and before the same judge. The civil action may also be filed separately. In the latter case, the exercise of the civil action shall be suspended as long as the penal action is not finally decided.’

132. See supra section 2.: The aims of international justice.

133. Partial, because this incorporation only applies to the Extraordinary Chambers and is thus limited by their personal and temporal jurisdiction.

134. Pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 1954, 216.

135. Pursuant to the 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95.

136. As for genocide, see ICJ, Advisory Opinion on Reservations to the Genocide Convention, ICJ Rep. (1951); and ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. IT-96–4-T, Judgement, 2 September 1998, para. 495.

137. On this point, see e.g., the Report of the UN Group of Experts, supra n. 3, paras. 59–79; Boyle, loc. cit. n. 4, at pp. 783–789; Marks, S.P., ‘Forgetting the Policies and Practices of the Past: Impunity in Cambodia’, 18 Fletcher Forum of World Affairs (1994) pp. 17 at 25Google Scholar; Schabas, W. and Stanton, G., ‘Should Khmer Rouge Leaders be Prosecuted for Genocide or Crimes against Humanity?, debate in 22 and 23 Searching For the Truth (Phnom Penh, Documentation Center of Cambodia, 10-11 2001)Google Scholar; and Jurovics, Y., Réflexions sur la spécificité du crime contre l'humanité (Paris, LGDJ 2002) p. 169 fnn. 114–115, and pp. 312–313Google Scholar.

138. Ratner, S. and Abrams, J., Accountability for Human Rights Atrocities in International Law (Oxford, Oxford University Press 2001) pp. 286–287Google Scholar; for an example of such extension, see e.g., Hannum, H., ‘International Law and Cambodian Genocide: The Sounds of Silence’, 11 HRQ (1998) p. 82CrossRefGoogle Scholar.

139. For example, Art. 4 allows prosecution of persons having committed genocide, ‘as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948’.

140. The only exception is the exclusion of violations of Art. 3 common to the 1949 Geneva Conventions, relating to non-international armed conflicts; however, this decision was not taken so much on the basis that there was no internal conflict in Cambodia at the time (a question for the judges to decide), but that such violations were not generally seen as being war crimes at the time: see Report of the UN Group of Experts, op. cit. n. 3, para. 75; contra see ICTY, Prosecutor v. Zejnil Delalić et al. (‘Čelebići’), Case No. IT-96–21-A, Appeal Judgement, 20 February 2001, paras. 163–168. In addition, it may have been difficult to prosecute simple perpetrators under common Art. 3, given that the exclusion of the defence of superior orders had undoubtedly not yet become a rule of customary international law at the time of the crimes: see ICTY, Prosecutor v. Enver Hadzihasanović, Mehmed Alagić and Amir Kubura (‘Central Bosnia’), Case No. UN Doc. IT-01–47-PT, Response of Mehmed Alagić on the Challenge to Jurisdiction, 24 May 2002.

141. See the Secretary General's Report to the Security Council on establishment of the ICTY (UN Doc. S/25704, 3 May 1993), para. 34.

142. On the customary source of the incrimination, see IMT for Nuremberg, United States v. Goering, 1 October 1946, 13 Annual Digest, p. 203.

143. Cambodia never signed the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity; and only ratified the Rome Statue establishing the ICC, on 11 April 2002, after the passage of the Khmer Rouge Tribunal Law.

144. On the evolution of the definition of crimes against humanity, see Boyle, D., ‘Génocide et crimes contre l'humanité – convergences et divergences’, in Fronza, E. and Manacorda, S., eds., La justice pénale internationale dans les décisions des Tribunaux ad hoc. Etudes des Law Clinics en droit pénal international de Paris et Naples (Milan, Giuffré 2003) pp. 124–140Google Scholar. These variations raise problems of retrospective criminal legislation which are considered infra part 4.4.4.

145. Khmer Rouge crimes against the clergy have been argued not to have involved religious discrimination because the members of all religions throughout the population were mistreated ‘indiscriminately’; see Jurovics, Y., Réflexions sur la spécificité du crime contre l'humanité (Paris, LGDJ 2002) pp. 169–170Google Scholar. However, the treatment of religions could be seen as political discrimination or, extrapolating from recent obiter dicta of the ICTY, it might also be viewed as ‘negative’ religious discrimination against all those who did not share the atheist beliefs of the Khmer Rouge: ICTY, Prosecutor v. Goran Jelisić, Case No. IT-95–10-T Judgement, 14 December 1999, para. 71.

146. See infra part 6.

147. For details of ICT case law on this point, see Jones, J., The Practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda, 3rd edn. (Ardsley NY, Transnational Publishers 2003)Google Scholar.

148. du Cambodge, Royaume, ‘Code pénal et Lois pénales’, 7–8 Recueil judiciaire (1956) Arts. 89–104Google Scholar: insanity, youth, force majeure, superior orders and self-defence.

149. Major examples are the inclusion of the Indonesian crime of rape in the jurisdiction of the East Timor Serious Crimes Panel and the crime of sexual abuse of female minors in the jurisdiction of the Special Court for Sierra Leone, both of which are defined more restrictively than rape as a crime against humanity in international criminal law: see Linton, op. cit. n. 108, at pp. 211, 241.

150. Linton, ibid., at p. 197; however, given that most of the provisions of Cambodian law in this area provide for complete defences (the exception being obeying an illegal order, which is only a mitigating circumstance [1956 Code pénale, op. cit. n. 148]), it is unlikely that international law is more favourable.

151. See Amnesty International, Kingdom of Cambodia: Amnesty International's position and concerns regarding the proposed ‘Khmer Rouge’ tribunal (Report, AI Index ASA 23/005/2003) April 2002, available at <http://www.amnesty.org/>.

152. On this question, see Jones, op. cit. n. 147, at Part 6, Section 3: Defences.

153. 1956 Code pénale, supra n. 148, especially Arts. 203, 209, 211, 240 and 300 § d).

154. It is open to argument that the Khmer Rouge operated a tabula rasa of all pre-existing ‘reactionary’ laws.

155. See infra part 4.4.4.

156. Arts. 1 and 2 of the Tribunal Law, supra n. 6.

157. Report of the UN Group of Experts, supra n. 3, paras. 109–110.

158. ‘Du droit international au droit national : l'exemple du génocide’, in Delmas-Marty, M. ed., Les processus d'internationalisation, Coll. Vers des principes directeurs internationaux de droit pénal, Vol. VII, (Paris, Editions de la Maison des Sciences de l'Homme 2001) pp. 171 at 216–218Google Scholar.

159. Report of the UN Group of Experts, supra n. 3, para. 151.

160. Ibid., paras. 110–111, 154 and 219(2).

161. See supra part 3.2.

162. This problem is limited somewhat by the fact that many subordinate members of the Khmer Rouge would be able to plead defences based on age, duress or mental health.

163. Six months for common crimes [SNC Provisions, supra n. 119, Art. 14(4)], extended to three years for international crimes by a law adopted in extremis on 11 August 1999.

164. Kingdom of Cambodia, Military Court, Phnom Penh, Order to Forward Case for Investigation, No. 019//99, 9 March 1999, based on the Law to Outlaw the Democratic Kampuchea Group, Law No. 064, 7 July 1994.

165. Kingdom of Cambodia, Military Court, Phnom Penh, Order to Forward Case for Investigation, No. 044/99, 6 September 1999; Duch was also charged with genocide in the same indictment.

166. ‘Cambodia's Khmer Rouge “butcher” charged’, CNN, 22 02 2002Google Scholar.

167. See Heder, S. and Tittemore, B., ‘Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge’, War Crimes Research Office, Washington College of Law, American University and Coalition for International Justice, 06 2001, 129 pp.Google Scholar; available at <http://www.wcl.american.edu/pub/humright/wcrimes/khmerrouge.html>.

168. See infra part 5.1.

169. State of Cambodia, 1993 Law on Criminal Procedure, supra n. 119, Art. 115: ‘…if the notification [of conviction] is not made in person or if there is no writ of judgement enforcement to be known to the accused, the decision may be opposed till the terms of limitation for punishment expires’.

170. The definition of genocide in PRK Decree-Law Nr. 1 may be consulted in UN Doc. A/C.3/34/1, 30 July 1979; for further reading concerning the ex-post facto definition of genocide in the 1979 Decree-Law establishing a ‘Revolutionary People's Tribunal’ to try Pol Pot and Ieng Sary, see Quigley, J., Genocide in Cambodia: Documents from the Trial of Pol Pot and leng Sary (Philadelphia, University of Pennsylvania Press 2000)Google Scholar; Heder, S., ‘Pol Pot's First Trial: August 1979’, paper presented at the Legacies of Authoritarianism: Cultural Production, Collective Trauma, and Global Justice Conference(University of Wisconsin,3 April 1998)Google Scholar; and Boyle, loc. cit. n. 4, at p. 803.

171. For an example of this reasoning concerning Australian War Crimes legislation, see High Court of Australia, Polyukhovic v. The Commonwealth, (1991) 65 CLR 521, per Brennan J., p. 545, available at <http://www.austlii.edu.au/au/cases/cth/high_ct/172clr501.html>.

172. See Art. 10(2) of the ICTY Statute, supra n. 43; and Art. 20 of the ICC Statute, supra n. 22.

173. Hun Sen is himself a former Khmer Rouge cadre.

174. Kingdom of Cambodia, Law to Outlaw the Democratic Kampuchea Group, Law No. 064, 7 July 1994, Art. 5.

175. A former Khmer Rouge General, Chhouk Rin, whose role in the death of three western backpackers was initially considered to have been covered by the amnesty provisions (see Boyle, D., ‘Correspondents' Report — Cambodia’, 3 YIHL (2000) pp. 437 at 439Google Scholar), was recently found guilty at a second trial, on this basis: ‘Cambodia re-tries guerrilla commander’, BBC News, 28 08 2002Google Scholar.

176. See supra part 4.1.

177. See infra part 6.

178. RGC, Aide mémoire, supra n. 67.

179. On the one hand, it is argued that the prosecution should only cover crimes that were defined by Cambodian national law before the acts were committed; on the other hand, it is argued that the courts can also prosecute crimes which were contrary to international law when committed, either by direct operation of international law or by subsequent legislative introduction into domestic law: see Boyle, loc. cit. n. 4, pp. 773–826.

180. Supra n. 121.: ‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed…’ [emphasis added].

181. Although torture was prohibited by the ICCPR prior to the torture convention, that treaty does not create international criminal offences; moreover, the negotiators clearly did not consider the argument that torture was prohibited under customary international law by 1975.

182. See in particular, Allied forces Control Council Law No. 10 for Germany, 20 December 1945.

183. See infra part 6.3.

184. Report of the UN Group of Experts, supra n. 3, para. 90; however, the examples cited only concerned cases where the limitation was extended or declared not subject to a statute of limitations before becoming time-barred, and also only concerned international crimes and not common crimes.

185. Supra n. 45, para. 9.

186. It should be remembered that in absentia proceedings seem to be excluded and that the Extraordinary Chambers were not established by the Security Council under Chapter VII of the Charter.

187. Even in East Timor, where the Courts were under direct UN Administration, UNTAET was eventually forced to adopt a transitional Criminal Procedure Code (UNTAET Reg. 2000/30, 25 September 2000), in order to clarify the interplay between existing legislation and UN Rules concerning the ‘Serious Crimes Panels’; on this point, see Linton, S., ‘Rising From the Ashes: The Creation of a Viable Criminal Justice System in East Timor’, 25 Melbourne Univ. LR (2001) p. 122 at 136Google Scholar.

188. Draft MOU, supra n. 5, Art. 28.

189. ‘Cambodia: Invitation Sent U.N. For Negotiation On Khmer Rouge Trials’, United Nations Foundation, UNWire, 10 10 2001Google Scholar.

190. Warren, M., ‘Tribunals for Khmer Rouge “lost in the post” as rest of the world loses interest’, The Scotsman (26 10 2001)Google Scholar.

191. See e.g., Eckhard, F., Spokesman for the UN Secretary-General, ‘UN Awaiting Comments by Cambodia on Tribunal’, New York, Excerpt from the noon briefing, 11 01 2002Google Scholar.

192. Sok An, Letter to Hans Correll, 23 November 2001, available at <http://www.ocm.gov>: ‘While the Articles of Cooperation may clarify certain nuances in the Law, and elaborate certain details, it is not possible for them to modify, let alone prevail over, a law that has just been promulgated.’

193. F. Eckhard, Spokesman for the Secretary-General, Daily Press Briefing by the Office of the Spokesman for the Secretary-General, 8 February 2002.

194. Sok An, Senior Minister in Charge of the Office of the Council of Ministers, Statement from the Royal Government of Cambodia in Response to the Announcement of UN Pullout from Negotiations on Khmer Rouge Trial, 12 February 2002, available at <http://www.ocm.gov>.

195. Draft MOU, supra n. 5, Art. 28. On the Cambodian side, the ‘legal requirements’ in question would include final promulgation of the Tribunal Law and, probably ratification of the MOU itself.

196. Art. 1 of the Draft MOU, ibid., contains two alternative formulations: ‘…the Law on the Establishment of Extraordinary Chambers, which has been adopted by the Cambodian Legislature under the Constitution of Cambodia / is subject to parliamentary approval, shall determine the jurisdiction of the court…’.

197. H. Corell, Press Briefing by United Nations Legal Counsel, United Nations, 8 February 2000.

198. Parliamentary scrutiny of international agreements signed by the Executive is already assured, through the approval and ratification procedure set out in Arts. 26 and 99 of the 1993 Constitution (as amended), supra n. 56.

199. See supra n. 54.

200. It is to be noted that the General Assembly simply ‘Welcome[d] the successful conclusion of the talks between the Government of Cambodia and the United Nations Secretariat on the question of the trial of the Khmer Rouge leaders … and welcome[d] the efforts of the Secretariat and the international community in assisting the Government to this end’: UN Doc. A/RES/55/95, 28 February 2001, para 18.

201. The Royal Government's systematic refusal to share UN drafts and comments with the legislator also demonstrates Hun Sen's desire to demonstrate the purely internal nature of the process leading to the establishment of the Extraordinary Chambers. The preamble to the Law does not mention any outside involvement.

202. Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, para. 9, available at <http://www.specialcourt.org/documents/>.

203. Royal Government of Cambodia Task Force on the Khmer Rouge Trial, Statement on the Khmer Rouge Trial, 15 March 2002, available at <http://www.ocm.gov.

204. See supra part 4.2.

205. Draft MOU, supra n. 5, Arts. 2(8)–(10) [judges]; 4(4) and (5) [investigating judge]; and 5(5)–(7) [prosecutors].

206. Ibid., Art. 2(8): ‘Appointment of international judges by the Supreme Council of the Magistracy shall be made only from the list submitted by the Secretary-General’.

207. An unofficial translation of this intermediate draft is currently available at <http://www.cambodian-parliament.org/Legislative_Act_/legislative_act_.html>; for a commentary on this draft, see ‘Core Issues in Khmer Rouge tribunal law Unresolved’, Human Rights Watch (Press release 2000/01, New York, 21 01 2000)Google ScholarPubMed, available at: <http://www.hrw.org/press/2000/01/cambo0121.htm.>

208. Tribunal Law, supra n. 6, Arts. 11, 18 and 26.

209. Draft MOU, supra n. 5, Arts. 12, 21 and 27.

210. Art. 11 refers to ‘a list of not less than twelve candidates’ and Arts. 18 and 26 refer to ‘at least two candidates’.

211. H. Corell, Under Secretary-General for Legal Affairs, Letter dated 10 October 2001 [non-official document].

212. Sok An, Senior Minister in Charge of the Office of the Council of Ministers, Cambodian response to the Eleven points raised in H.E. Hans Corell's letter of 10 October 2001 (Letter to H. Corell dated 22 January 2002, Annex).

213. See infra part 6.2.

214. ‘Cambodia's Khmer Rouge “butcher” charged’, CNN, 22 02 2002Google Scholar.

215. The 1979 and 1994 laws only referred to genocide.

216. Charmichael, R. and Sokheng, V., ‘Aging Ta Mok on Ice for 3 more Years’, Phnom Penh Post, Issue 11/05 (1–14 03 2002)Google Scholar available on subscription at <http://www.phnompenhpost.com/>.

217. F. Eckhard, Spokesman for the Secretary-General, Daily Press Briefing by the Office of the Spokesman for the Secretary-General, 8 February 2002.

218. For the reactions of the local NGO, Licadho, and Amnesty International, see ‘Rights groups support UN stance on Khmer Rouge trial’, Agence France-Presse (12 02 2002)Google Scholar; see also Amnesty International, ‘Cambodia: Flawed trials in no one's best interests’ (Press release, AI Index ASA 23/001/2002) 11 February 2002, available at <http://www.amnesty.org/>.

219. ‘US Ambassador and U.N. Secretary-General Discuss Cambodia’, Associated Press (12 02 2002)Google Scholar.

220. UN Press Release, Secretary-General replies to Cambodian Prime Minister's Letter on Trial of Khmer Rouge Leaders (UN Doc. SG/SM/8341, 20 August 2002), available at <http://www.un.org/News/>.

221. UN Doc. A/RES/57/228 (2002), 18 December 2002, para. 1.

222. Supra n. 7.

223. ‘Cambodian cabinet approves Khmer Rouge trial law’, Reuters (28 03 2003)Google Scholar.

224. UN Doc. A/RES/57/228B, 13 May 2003, adopted without a vote.

225. Jiang, Hua, Deputy Spokesman for the Secretary-General of the United Nations, ‘UN and Cambodia Agree on Khmer Rouge Trial Structure’, Highlights of the Noon Briefing, United Nations, UN Headquarters, New York, 6 06 2003Google Scholar.

226. See Statement on the Khmer Rouge Trial, supra n. 203, and UN Doc. SG/SM/7868, 27 June 2001.

227. CERD, Seventh periodic reports of States parties due in 1996: Cambodia (State Party Report, UN Doc. CERD/C/292/Add.2), 5 May 1997, para. 19.

228. 2003 Agreement, supra n. 7, Art. 3.

229. See Report of the Secretary-General on Khmer Rouge trials, supra n. 7, supra n. 7.

230. See supra part 4.1.

231. Report of the Secretary-General on Khmer Rouge trials, supra n. 7, paras.16, 21 and 22.

232. Supra n. 7, Arts. 5(6) and 6(6).

233. See supra part 4.3.1.

234. See Amnesty International's position and concerns regarding the proposed ‘Khmer Rouge’ tribunal, supra n. 151, p. 4.

235. See for East Timor, Linton, loc. cit. n. 187, p. 136.

236. See supra part 4.4.3.

237. Report of the Secretary-General on Khmer Rouge trials, supra n. 7, paras. 74–76.

238. Third Committee approves draft resolution on Khmer Rouge trials, UN Doc. GA/SHC/3734, 2 May 2003; the UN will also be responsible for the costs of fitting out and running the premises provided by Cambodia, the remuneration of defence counsel, witness travel and the cost of safety and security services provided by the Cambodian government. Detailed estimates of these costs were not yet available, but would also be met from voluntary contributions.

239. Unmacht, E., ‘Senior Court Judge Murdered in Cambodia’, Voice of America, 23 04 2003Google Scholar.

240. Badinter, R., ‘International Criminal Justice: From Darkness to Light’, in Cassese, A. et al. , eds., The Rome Statute of the International Criminal Court – A Commentary (Oxford, Oxford University Press Oxford 2002) Vol. II, pp. 1931 at 1933Google Scholar.

241. Report of the Secretary-General on Khmer Rouge trials, supra n. 7, summary.