the relation of eccc with the international laws

8/12/2019 The Relation of ECCC With the International Laws

http://slidepdf.com/reader/full/the-relation-of-eccc-with-the-international-laws 1/24

Paññ! s! stra University of Cambodia The Relation of the ECCC with the International Laws

Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"

RESEARCH PAPER

The Relation of ECCC with the International Laws

Written By: LONG Kimkhorn

Master of Arts in International Relations and Diplomacy

Paññ!s!stra University of Cambodia

Public International Laws

Instructed By: Sang-Bonn SOTH, LLM. and Professor of PUC

Faculty of Law and Public Affairs (LPA)

Phnom Penh, February 26th, 2014




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA$

TABLES OF CONTENT

"# Abstract

According to the book written by Lt. General Pol Saroeun in 2013 titled DIFID Strategy of

Decho Sen of Cambodia stated that on 24 July 1997, there was a court1 created by senior Khmer

Rouge regime’s high ranking official, namely Ta Mok, to trail and charge Pol Pot of serious

crime against the slaughtering of Son Sen’s whole family. This is the first attempt a court

created by Khmer Rouge’s official against their top leader to seek justice (Pol: 2014, 242).

December 29, 1998, former KR’s National Assembly President Noun Chea, former Ministry of

Foreign Affairs Minister Ieng Sary, former Head of State of Democratic Kampuchea Regime

Khiev Samphan with the families surrendered with the Royal Government of Cambodia. March

6, 1999, Ta Mok was arrested by the Military Court of Cambodia and then the Royal

Government of Cambodia trailed Ta Mok and others senior KR leaders at the Military Court2

ofCambodia. This is a second attempt of court creation to trail KR’s senior leaders (Pol: 2014,

243).

Then the Cambodian authorities asked for assistance3 appeared in a letter dated 21 June 1997

from the then-First Prime Minister of Cambodia, Prince Norodom Ranariddh, and the then-

Second Prime Minister of Cambodia, Hun Sen, which stated in pertinent part: "On behalf of the

Cambodian Government and people, we write to ask you for the assistance of the United

Nations and the international community in bringing to justice those persons responsible for the

genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979.

On 12 December 1997, the General Assembly adopted resolution 52/135, entitled "Situation of

human rights in Cambodia". The resolution addressed the state of human rights in Cambodia

(UN-GASC: 1999, 7). This is the third attempt to create the court to trail KR’s senior leaders.

But the controversial question here is – How should the court be created?

1&2Lt. General Pol Saroeun, DIFID Strategy of Decho Sen of Cambodia, (3D Graphic

Publishing, 2014: 242-243)

3GENERAL ASSEMBLY SECURITY COUNCIL, Report of the Group of Experts for

Cambodia established pursuant to General Assembly resolution 52/135 /, (UN, 1999: 7)

II. Acknowledgement

I would like to thank Sang-Bonn SOTH, LLM. and professor of the Faculty of Law and Public

Affairs at the Paññ!s!stra University of Cambodia. And Paper would like to thank the law

experts, academicians, researchers, officials involving in the work of the ECCC (Extraordinary




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA%

Chamber in the Court of Cambodia) and the UNAKRT (United Nations Assistance to the

Khmer Rouge Trail) which database a lot of legal documents related to the overall work of

ECCC that enable me to have a handful of references for my research paper.

III. Introduction

a. The Definition of ECCC

ECCC stands for Extraordinary Chamber in the Court of Cambodia. It is called by another two

alias – Hybrid Court or Khmer Rouge Court – rather than its original name.

b. The Mission of ECCC

Bringing these men to justice is a matter not only of moral obligation but also of profound

political and social importance to the Cambodian people. For accountability first and foremost

is a statement to the millions of Cambodian victims and their relatives and friends that theircries have at last been heard, providing the survivors with a sense of justice and some closure

on the past. Justice4 is also a critical element for repairing the damage done to that society by

the massive human rights abuses and for promoting internal peace and national reconciliation.

By having those who committed the abuses identified and punished, Cambodians can better

understand their own past, finally place this most tragic period and those responsible for it

behind them, and work together to build a peaceful and better future. And accountability can

play an important preventive role in Cambodia - demonstrating to those contemplating offences

that punishment is at least possible, and promoting an awareness among the people about the

meaning of justice and the rule of law (UN: 1999, 6).


Cambodia established pursuant to General Assembly resolution 52/135 /, (UN, 1999: 6)

c. The Purposes of ECCC

According to the UN Adopted Resolution

5

57/228 on 18 December 2002 in the Article 1 of theAgreement between the United Nations and the Royal Government of Cambodia stated that the

purpose of the present Agreement is to regulate the cooperation between the United Nations

and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic

Kampuchea and those who were 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 during the period from 17April

1975 to 6 January 1979. The Agreement provides, inter alia, the legal basis and the principles

and modalities for such cooperation (UN General Assembly: 2002, 2).




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA&

5General Assembly, Resolution adopted on the report of the Third Committee (A/57/806)

57/228. Khmer Rouge trials/ Recalling its resolution 57/228, (UN, 2003: 2-12)

d. The Structure of ECCC

The Extraordinary Chambers have 27 judicial posts6, including the co-investigating judges, 15

of whom are Cambodian and 12 international. The Pre-Trial Chamber comprises four

Cambodian and three international judges, including one Cambodian reserve judge and one

international reserve judge. The Cambodian judges are Prak Kimsan (President), Ney Thol,

Huot Vuthy and Pen Pichsaly as the reserve. The international judges are Rowan Downing

(Australia), Chang-ho Chung (Republic of Korea) and Steven J. Bwana (United Republic of

Tanzania) as the reserve.

The Trial Chamber has four Cambodian judges and three international judges, including one

Cambodian reserve judge and one international reserve judge. The Cambodian judges are Nil

Nonn (President), Ya Sokhan, You Ottara and Thou Mony as the reserve. The international

judges are Silvia Cartwright (New Zealand), Jean- Marc Lavergne (France) and Claudia Fenz

(Austria) as the reserve.

There are five Cambodian judges serving in the Supreme Court Chamber: Kong Srim

(President), Som Sereyvuth, Mong Monichariya, Ya Narin and Sin Rith as the reserve. While

four international judges should serve in the Supreme Court Chamber, at the time of the

submission of the present report, only three positions were encumbered, owing to the

resignation of one judge. The international judges are Chandra Nihal Jayasinghe (Sri Lanka),

Agnieszka Klonowiecka-Milart (Poland) and Florence Ndepele Mwachande Mumba (Zambia)

as the reserve. On 2 July 2012, the President of the Supreme Court Chamber designated Ms.

Mumba to sit in place of Motoo Noguchi (Japan), who resigned as from 15 July, and to replace

him in all future proceedings pending the formal appointment of a new international judge by

the Supreme Council of the Magistracy (UN: 2012, 8).

6United Nations General Assembly, Report of the Secretary-General A/67/380/, (UN, 2012:819)




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA'

Figure 1: Component7 of the ECCC

7Chan Sok, Constitutional Council/ Case No. 038/001/2001/ Decision No. 040/002/2001,

(Municipality of Phnom Penh, 2001: 3)

IV. Literature Review

a. Tipping Point of ECCC Creation

Co-Prime Minister wrote a letter 8 to the UN stated, “Cambodia does not have the resources or

expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for

the assistance of the United Nations. We are aware of similar efforts to respond to the genocide

and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar

assistance be given to Cambodia” (UNGA: 1997, 1).

8 Norodom Ranariddh., Hun Sen., Letter dated 21 June 1997 from the First and Second Prime

Ministers of Cambodia addressed to the Secretary-General, GENERAL ASSEMBLY Fifty-first

session Agenda item 110 HUMAN RIGHTS QUESTIONS/ SECURITY COUNCIL/ Fifty-

second year/ A/51/930/ S/1997/488, (General Assembly, 1997: 1)

b. The Establishment of ECCC

In the process of the establishment of the ECCC, there were five proposals had been made to

United Nations Security Council, stated following:

! A Tribunal established under Cambodian law9

The first option considered by the Group is the conduct of criminal trials under Cambodian law

in a domestic court, under the sponsorship of the Cambodian Government. As a party to the

Genocide Convention, Cambodia is obligated to punish genocide that took place on itsterritory; in the 1991 Paris Accords, it undertook "to take effective measures to ensure that the

policies and practices of the past shall never be allowed to return", to "ensure respect for and




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA(

observance of human rights and fundamental freedoms in Cambodia", and "to adhere to

relevant international human rights instruments" (UNSC: 1999, 49).


Cambodia established pursuant to General Assembly resolution 52/135/, (UN, 1999: 49)

! A Tribunal established by the United Nations10

The second option the Group considered is the establishment of an ad hoc international tribunal by the United Nations. After careful evaluation of all the alternatives and as explained in detail

in section 7 below, it is this option that the Group strongly recommends (UNSC: 1999, 55).



! A Cambodian tribunal under United Nations administration11

The third proposal the Group considered is a hybrid of the previous two models: a tribunal

established under Cambodian law, but subject to the control and operation of the United

Nations. The establishment of such a tribunal would be done through two simultaneous legal

undertakings. First, the United Nations, through the Secretary-General, would enter into an

international agreement with the Cambodian Government establishing the legal status of the

tribunal, the obligations of the United Nations and the obligations of Cambodia. Second, the

Cambodian Government would pass a law that formally establishes the tribunal according to

the terms of its agreement with the United Nations. A statute of the tribunal would be annexed

to the Cambodian law and the agreement as well. The jurisdiction of such a court could

comprise only international crimes, only Cambodian crimes, or extend to both (UNSC: 1999,

69).



! An international tribunal established by multilateral treaty12

This option would entail the creation of a court along the model of the International Military

Tribunal at Nuremberg through a treaty among interested States.83 In the case of Cambodia,

this might be a combination of States in the region whose cooperation would be necessary to

the effective functioning of a court and other interested States that might wish to contribute

financial resources and personnel. It would avoid the creation of a new United Nations court.

The Group declines to recommend this option because we are quite skeptical of the possibility

of agreement among many States on the form of such a court. Protracted negotiations might

well lead nowhere. This reasoning formed the basis for the Secretary-General's

recommendations to the Security Council in 1993 and 1994 that the International Tribunal for




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA)

the Former Yugoslavia and the International Criminal Tribunal for Rwanda be established by

Security Council resolution and not by treaty, and we find that reasoning equally applicable

here (UNSC: 1999, 71).



! Trials in other States13

The fifth option considered by the Group is the trial of Khmer Rouge leaders by and in a State

other than Cambodia. Such trials could take place as a matter of international law under the

theory of universal jurisdiction, which gives each State the right to prosecute persons for

genocide, crimes against humanity and other international crimes regardless of the place of the

commission of the crimes or the nationality of the accused or the victims. Trials could only take

place in States that have criminal statutes providing for such universal jurisdiction or which

otherwise are able to apply their ordinary criminal laws to cases without a link between the

forum State and the site of the crime, the nationality of the victims or the nationality of the

accused. If the accused or the victim happened to be a national of the State, then other bases for

jurisdiction would be possible as well (UNSC: 1999, 72).



c. The Laws of ECCC

According to the Agreement14 between UN and RGC: The present Agreement recognizes that

the Extraordinary Chambers have subject matter jurisdiction consistent with that set forth in

“the 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"

(hereinafter: "the Law on the Establishment of the Extraordinary Chambers"), as adopted and

amended by the Cambodian Legislature under the Constitution of Cambodia. The present

Agreement further recognizes that the Extraordinary Chambers have personal jurisdiction over

senior leaders of Democratic Kampuchea and those who were most responsible for the crimes

referred to in Article 1 of the Agreement (UN/RGC: 2003, 2).

The present Agreement shall be implemented in Cambodia through the Law on the

Establishment of the Extraordinary Chambers as adopted and amended. The Vienna Convention

on the Law of Treaties, and in particular its Articles 26 and 27, applies to the Agreement. In

case amendments to the Law on the Establishment of the Extraordinary Chambers are deemed

necessary, such amendments shall always be preceded by consultations between the parties

(UN/RGC: 2003, 2).




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA*

14United Nations., Royal Government of Cambodia., 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, (UN/RGC, 2003:2)

d. The Appointment of Co-Judge and Judge

According to the Article 3 about Judge15

, the agreement between UN and RGC stated that

Cambodian judges, on the one hand, and judges appointed by the Supreme Council of the

Magistracy upon nomination by the Secretary-General of the United Nations (hereinafter:

"international judges"), on the other hand, shall serve in each of the two Extraordinary

Chambers (UN: 2002, 3).

15United Nations., Royal Government of Cambodia., AGREEMENT BETWEEN THE



THE PERIOD OF DEMOCRATIC KAMPUCHEA, (UN/RGC, 2003:3)

According to the Article 10 (New)16 The judges of the Extraordinary Chambers shall be

appointed from among the currently practicing judges or are additionally appointed in

accordance with the existing procedures for appointment of judges; all of whom shall have high

moral character, a spirit of impartiality and integrity, and experience, particularly in criminal

law or international law, including international humanitarian law and human rights law

(ECCC: 2004, 3).

16UN., RGC., Law on the Establishment of the Extraordinary Chambers, with inclusion of

amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), (2004: 1-3)

e. The Important Body17

of ECCC

The Extraordinary Chambers shall be composed of the two Chambers as follows:

(a) The Trial Chamber: three Cambodian judges and two international judges;

(b) The Supreme Court Chamber, which shall serve as both appellate chamber and final

instance: four Cambodian judges and three international judges (ECCC: 2002, 3).


57/228. Khmer Rouge trials/ Recalling its resolution 57/228, (UN, 2003: 3)

V. Methodology

The paper uses secondary data as primary sources for writing. First, I collect all documents

database on the website of ECCC and UNAKRT. Second, I select the targeted sources by

reviewing one by one about 100 sources. Third, I conduct literature review on selected 20




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"+

sources. Fourth, I put all important information into literature matrix. Fifth, I start writing the

paper using qualitative method with the footnotes and references.

VI. Scope of Research

Due to the school requirement and time constraint, the paper only touch upon few important

point of ECCC including the Law of ECCC (Establishment, Judge Appointment, Court

Jurisdiction, Judgment, Decision Making, Power of ECCC, Scope of ECCC, Political Influence

on Court, and few more), Achievement of Case 001, Current Status of Case 002, 003, 004.

VII. Facts and Findings

a. The Power of ECCC

According to the Article 4 of the agreement on the decision-making process18. The judges shall

attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:

(a) A decision by the Trial Chamber shall require the affirmative vote of at least four judges.

Trial Chamber composes of three Cambodian judges and two international judges; (b) A

decision by the Supreme Court Chamber shall require the affirmative vote of at least five

judges. The Court Chamber composes of four Cambodian judges and international judges.

When there is no unanimity, the decision of the Chamber shall contain the views of the majority

and the minority (UN General Assembly: 2002, 4). The Court has only power to trail the crimes

committed during the period from 17April 1975 to 6 January 1979.

18

General Assembly, Resolution adopted on the report of the Third Committee (A/57/806)57/228. Khmer Rouge trials/ Recalling its resolution 57/228, (UN, 2003: 2-12)

The ECCC is such a controversial case against Mr. Ieng Sary. According to the article 1: a

pardon19

to Mr Ieng Sary, former Deputy Prime Minister in charge of Foreign Affairs in the

Government of Democratic Kampuchea, for the sentence of death and confiscation of all his

property imposed by order of the People's Revolutionary Tribunal of Phnom Penh, dated 19

August 1979; and an amnesty for prosecution under the Law to Outlaw the Democratic

Kampuchea Group, promulgated by Reach Kram No. 1, NS 94, dated 14 July 1994 (Sihanouk:

1996, 1).

19 Norodom Sihanouk, Royal Decree (Reach Kret)/ NS/RKT/0996/72/, (Royal Palace, 1996: 1)

b. The Legal Scope of ECCC

According to Article 3 (New), the Extraordinary Chambers shall have the power 20

to bring to

trial all Suspects who committed any of these crimes set forth in the 1956 Penal Code, and

which were committed during the period from 17 April 1975 to 6 January 1979: (1) Homicide

(Article 501, 503, 504, 505, 506, 507 and 508); (2) Torture (Article 500); (3) Religious




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA""

Persecution (Articles 209 and 210).

According to Article 4 of the ECCC Agreement: the Extraordinary Chambers shall have the

power to bring to trial all Suspects who committed the crimes of genocide as defined in the

Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which

were committed during the period from 17 April 1975 to 6 January 1979 (ECCC: 2004, 1).

The acts of genocide, which have no statute of limitations, mean any acts committed with the

intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: (4)

killing members of the group; (5) causing serious bodily or mental harm to members of the

group; (6) deliberately inflicting on the group conditions of life calculated to bring about its

physical destruction in whole or in part; (7) imposing measures intended to prevent births

within the group; (8) forcibly transferring children from one group to another group.

According to the Article 5: The Extraordinary Chambers shall have the power to bring to trial

all Suspects who committed crimes against humanity during the period 17 April 1975 to 6

January 1979. Crimes against humanity, which have no statute of limitations, are any acts

committed as part of a widespread or systematic attack directed against any civilian population,

on national, political, ethnical, racial or religious grounds, such as: (9) murder; (10)

extermination; (11) enslavement; (12) deportation; (13) imprisonment; (14) torture; (15) rape;

(16) persecutions on political, racial, and religious grounds; (17) other inhumane acts (ECCC:2004, 2).

According to the Article 6: The Extraordinary Chambers shall have the power to bring to trial

all Suspects who committed or ordered the commission of grave breaches of the Geneva

Conventions of 12 August 1949, such as the following acts against persons or property

protected under provisions of these Conventions, and which were committed during the period

17 April 1975 to 6 January 1979: (18) willful killing; (19) torture or inhumane treatment; (20)

willfully causing great suffering or serious injury to body or health; (21) destruction and

serious damage to property, not justified by military necessity and carried out unlawfully and

wantonly; (22) compelling a prisoner of war or a civilian to serve in the forces of a hostile

power; (23) willfully depriving a prisoner of war or civilian the rights of fair and regular trial;

(24) unlawful deportation or transfer or unlawful confinement of a civilian; taking civilians as

hostages (ECCC: 2004, 3).

20

UN., RGC., Law on the Establishment of the Extraordinary Chambers, with inclusion ofamendments as promulgated on 27 October 2004 (NS/RKM/1004/006), LAW ON THE

ESTABLISHMENT OF EXTRAORDINARY CHAMBERS IN THE COURTS OF

CAMBODIA FOR THE PROSECUTION OF CRIMES COMMITTED DURING THE




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"#

PERIOD OF DEMOCRATIC KAMPUCHEA, (ECCC, 2004: 1-3)

c. The ECCC Jurisdiction

The Extraordinary Chambers shall exercise their jurisdiction21

in accordance with international

standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the

1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. In the

interest of securing a fair and public hearing and credibility of the procedure, it is understood

that representatives of Member States of the United Nations, of the Secretary-General, of the

media and of national and international non-governmental organizations will at all times have

access to the proceedings before the Extraordinary Chambers. Any exclusion from such

proceedings in accordance with the provisions of Article 14 of the Covenant shall only be to

the extent strictly necessary in the opinion of the Chamber concerned and where publicity

would prejudice the interests of justice (UN General Assembly: 2003, 9).



The subject-matter jurisdiction of the ECCC encompasses22: (a) genocide as defined in the

1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide

Convention”); (b) crimes against humanity as defined in the 1998 Rome Statute of the

International Criminal Court (“ICC Statute”); (c) grave breaches of the 1949 Geneva

Conventions; (d) destruction of cultural property during armed conflict pursuant to the 1954

Hague Convention for Protection of Cultural Property in the Event of Armed Conflict;

(e) crimes against internationally protected persons pursuant to the Vienna Convention of 1961

on Diplomatic Relations; (f) crimes set forth in the 1956 Penal Code of Cambodia including:

homicide (Article 501, 503, 504, 505, 506, 507 and 508); torture (Article 500); and religious

persecution (Articles 209 and 210) (ICLS: 2009, 1).

22International Criminal Law Services and Open Society Justice Initiative, Report, (2009: 1)

d. The ECCC Procedure

According to the Article 12 about the court procedure. The procedure shall be in accordance

with Cambodian law. Where Cambodian law does not deal with a particular matter, or where

there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian

law, or where there is a question regarding the consistency of such a rule with international

standards, guidance may also be sought in procedural rules established at the international level

(UN General Assembly: 2002, 9).






Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"$

e. The ECCC Judgment

According to the Rule 9824 on the Judgment amended on 1 February 2008 and 6 March 2009

stated that (1). Where the judgment is not pronounced during the final hearing, the President of

the Chamber shall notify the parties of the date for pronouncement of the judgment; (2). The

judgment shall be limited to the facts set out in the Indictment. The Chamber may, however,

change the legal characterization of the crime as set out in the Indictment, as long as no new

constitutive elements are introduced. The Chamber shall only pass judgment on the Accused. If

another person, appearing as a witness during the trial is suspected of committing a crime or

conspiring with someone to commit a crime, the Chamber shall only try such person after he or

she has been charged and indicted in accordance with these IRs; (3). The Chamber shall

examine whether the acts amount to a crime falling within the jurisdiction of the ECCC, and

whether the Accused has committed those acts;

(4). Pursuant to the ECCC Law, the Chamber shall attempt to achieve unanimity. If this is not

possible, a conviction shall require the affirmative vote of at least 4 (four) judges. If the

required majority is not attained, the default decision shall be that the Accused is acquitted; (5).

If the Accused is found guilty, the Chamber shall sentence him or her in accordance with the

Agreement, the ECCC Law and these IRs; (6). Where the Chamber considers that the acts set

out in the Indictment have not been proved, or that the Accused is not guilty of those acts, he or

she shall be acquitted; (7). Where the Chamber considers that the crimes set out in the

Indictment do not fall within the jurisdiction of the ECCC, it shall decide that it does not have

jurisdiction in the case (ECCC: 2011, 69).

24Judge Kong Srim., Judge Silvia Cartwright., EXTRAORDINARY CHAMBERS IN THE

COURTS OF CAMBODIA INTERNAL RULES (REV.8) AS REVISED ON 3 August 2011/,

(ECCC, 2011: 69)

According to the Rule 104

25

about Jurisdiction of the Supreme Court Chamber amended on 5September 2008 and 6 March 2009 and 9 February 2010 stated that (1). The Supreme Court

Chamber shall decide an appeal against a judgment or a decision of the Trial Chamber on the

following grounds: a) an error on a question of law invalidating the judgment or decision; or b)

an error of fact which has occasioned a miscarriage of justice. Additionally, an immediate

appeal against a decision of the Trial Chamber may be based on a discernible error in the

exercise of the Trial Chamber’s discretion, which resulted in prejudice to the appellant. For

these purposes, the Supreme Court Chamber may itself examine evidence and call new

evidence to determine the issue;




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"%

(2). The Supreme Court Chamber may either confirm, annul or amend decisions in whole or in

part , as provided in Rule 110; (3). Decisions of the Chamber are final, and shall not be sent

back to the Trial Chamber; (4). The following decisions of the Trial Chamber are subject to

immediate appeal: a) decisions which have the effect of terminating the proceedings;

b) decisions on detention and bail under Rule 82; c) decisions on protective measures under

Rule 29(4)(c); and d) decisions on interference with the administration of justice under Rule

35(6). Other decisions may be appealed only at the same time as an appeal against the

judgment on the merits. Unless otherwise provided in the IRs or decided by the Trial Chamber,

an immediate appeal does not stay the proceedings before the Trial Chamber (ECCC: 2011,

71).

25Judge Kong Srim., Judge Silvia Cartwright., EXTRAORDINARY CHAMBERS IN THE

COURTS OF CAMBODIA INTERNAL RULES (REV.8) AS REVISED ON 3 August 2011/,

(ECCC, 2011: 71)

f. The Achievement of Case 001

On 8 August 2008, the co-investigating judges issued a closing order 26 in which they indicted

Duch for crimes against humanity and grave breaches of the Geneva Conventions of 1949.

Following an appeal by the co-prosecutors, the closing order was partially amended by the Pre-

Trial Chamber to add the domestic crimes of torture and premeditated murder as defined in the

1956 Penal Code of Cambodia to the indictment. The Pre-Trial Chamber sent the accused for

trial on the basis of the amended closing order (UN: 2012, 2).

During the reporting period, the Extraordinary Chambers concluded all proceedings in case 001

against Kaing Guek Eav, alias “Duch”, the former head of S-21, a Khmer Rouge torture and

execution centre. Duch was convicted and sentenced to 35 years’ imprisonment by the Trial

Chamber. Following an appeal, the Supreme Court Chamber to that of life imprisonment

increased his sentence. The trial in case 002, against four surviving senior leaders of the Khmer

Rouge regime, began in June 2011. Many Cambodians and foreigners have attended the

judicial proceedings in both cases, with the national and international press reporting on them

extensively and positively (UN: 2012, 2).

26General Assembly, Report of the Secretary-General/ United Nations/ A/67/380/, (UN, 2012:

21)

g. The Questions of Justice

International Republican Institute (IRI) funded by USAID conducted a Survey of Cambodian

Public Opinion27 in 2009 regarding the Khmer Rouge Trail with 2000 samples from 24




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"&

provinces. The survey asked a series of questions regarding Khmer Rouge Trail and Duch

(Case 001). In respond to the question “Are you aware of trail of the Khmer Rouge leaders?”

There were 82 percent of the total respondents said “Yes”. Q.2 “Is the trail of Khmer Rouge

leaders providing justice?” There were 70 percent of respondents replied “Yes” (IRI: 2009, 40-

43).

27International Republican Institute, Survey of Cambodian Public Opinion 2009, (IRI, 2009:

40-43)

h. The Status of Suspects in the Case 002 and Current Status of Case 002, 003, 004

Monday 21 November 2011 marks the start of the long-awaited trial of Khmer Rouge senior

leaders (Case 002)28 for genocide, war crimes, and crimes against humanity before the

Extraordinary Chambers in the Courts of Cambodia (ECCC). The trial is a historic step forward

in Cambodia’s search for justice. After years of pre-trial investigations, ECCC has brought

charges of mass atrocity crimes against Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng

Thirith.

The four Accused persons occupied key positions in the Democratic Kampuchea

government, which ruled Cambodia in a bloody reign of terror from 1975 to 1979

(CJA/IHRLC: 2011, 1).

28The Center for Justice & Accountability (CJA)., The International Human Rights Law

Clinic., VICTIMS’ RIGHT TO REMEDY: AWARDING MEANINGFUL REPARATIONS

AT THE ECCC, (University of California, 2011: 1)

In December, the Supreme Court Chamber began preparatory review29 and research on issues

relating to the scope of Case 002/01. Trail Chamber: Following the conclusion of the hearing of

evidence and closing arguments in Case 002/01 on 31 October, the Trial Chamber is currently

engaged in judgment drafting. The verdict is expected in the second quarter of 2014 (ECCC:

2014, 4).

On 11 and 12 December, the Trial Chamber held a trial management meeting to facilitate the planning of the second phase of Case 002. The chamber heard the parties to Case 002 and

representatives of the Office of Administration on issues including the possibility of

establishing a second trial panel.

On 20 December, the president of the Trial Chamber issued a memorandum informing the

director of the Office of Administration that he is not recommending the appointment of a

second Trial Chamber panel to hear the remaining charges in the second phase of Case 002.

The president took into consideration legal uncertainties regarding the appointment of a second

panel, as well as the time that would be required for its establishment and preparation for the




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"'

case, before concluding that the appointment of a second panel would be less expeditious than

proceeding with the existing bench that is already familiar with the case (ECCC: 2014, 4).

In the memorandum, the Trial Chamber identified numerous issues which require resolution

prior to the start of evidentiary hearings, including the scope of the trial, the fate of facts or

charges not included in Case 002/02, the assessment of the fitness of the accused, the filing of

lists of relevant witnesses, experts and civil parties proposed to appear at trial, the filing of

relevant document lists, and the determination of any out- standing preliminary objections. As a

first step, the Trial Chamber directed the parties to file submissions on the fitness of the

accused by 15 January 2014 and on the scope of the trial by 31 January 2014. It further directed

the Khieu Samphan defence team to file submissions to support its assertion that Case 002/01

must be finally adjudicated and the appeals process, if any, completed before the evidentiary

hearings in Case 002/02 can start (ECCC: 2014, 4).

29Extraordinary Chamber in the Court of Cambodia, ECCC Court Report Issue 68, (ECCC,

2014, 4)

Pre-Trail Chamber: During the reporting period, the Pre- Trial Chamber disposed of a number

of procedural30 and other case-management matters and continued its consideration of three

appeals in Cases 003 and 004 pending before it, namely: " An appeal by a suspect in Case 003

against the constructive denial of 14 requests filed to the Co-Investigating Judges; (a) An

appeal from a suspect in Case 004 against a decision from the International Co-Investigating

Judge rejecting requests to have access to the case file and to participate in the judicial

investigation; (b) An appeal filed pursuant to Internal Rule 11(5) by a lawyer whose

admission on the list of counsel authorized to rep- resent indigent persons before the ECCC had

been denied by the Head of the Defense Support Section. These appeals are all classified as

confidential or strictly confidential (ECCC: 2014, 5).

In addition, a judge in the Pre-Trial Chamber who had been appointed as an administrative

judge in respect of a non- fees dispute between a co-lawyer and the Defense Support Section

issued his decision on 13 December. He found the co- lawyer’s claim for the reimbursement of

a flight ticket for his legal consultant inadmissible (ECCC: 2014, 5).

Case 003: The co-prosecutors have been monitoring the evidence and developments in Case

003, responding as necessary and attempting to systematically review the record from Cases

001 and 002 to ensure that they fulfill their disclosure obligations regarding the OCIJ (ECCC:2014, 5).




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"(

Case004: The co-prosecutors have been monitoring the evidence and developments in Case

004, responding as necessary and attempting to systematically ensure that they fulfill their

disclosure obligations regarding the OCIJ (ECCC: 2014, 5).

30Extraordinary Chamber in the Court of Cambodia, ECCC Court Report Issue 68, (ECCC,

2014, 5)

i. The Political Influences and Challenging

In the autumn of 2010, Cambodian Prime Minister Hun Sen informed United Nations

Secretary-General Ban Ki-moon, during the Secretary-General’s visit to Phnom Penh, “Case

003 will not be allowed31. The court will try the four senior leaders successfully and then finish

with Case 002.” These statements by the Prime Minister were the latest in a series of public

comments made by senior Cambodian government officials bearing the same message: the

ECCC would shut down after Case 002 was completed (OSJI: 2012, 2).

Significant Developments in the Case 003/004 Judicial Investigations since February 2012.

Available information at the time of the Justice Initiative’s February 2012 Update Report

showed that the ECCC was facing some of its worst challenges yet concerning Cases 003/004.

The Cambodian government had refused to recognize the legitimate authority of Reserve

International Co-Investigating Judge Laurent Kasper-Ansermet (Switzerland). Hiding behind

the decision of Cambodia’s judicial appointing authority, the Supreme Council of the

Magistracy (of which ECCC National Co-Investigating Judge You, National Co-Prosecutor

Chea Leang, and other highly placed Cambodian ECCC officials are voting members), the

Cambodian government effectively blocked the appointment. This direct affront to the

provisions of the Agreement—which are designed to guarantee autonomy on the part of the UN

in selecting and nominating its judicial candidates—elicited a strong response from many

different stakeholders. The UN responded boldly, citing the government for its “breach” of the

Agreement (OSJI: 2012, 9).

One of Judge Kasper-Ansermet’s final actions was to seek to engage the Cambodian Supreme

Council of the Magistracy in taking disciplinary action against Judge You for misconduct.

Predictably however, the complaint disappeared. The media reported that Ouk Savuth—a

Supreme Council of the Magistracy member—said the body had never received the filing. In a

similarly controversial—and probably equally ineffective—move, Judge Kasper-Ansermet

filed a complaint with the Phnom Penh municipal court against unnamed current and former

ECCC staff members, alleging interference with the administration of justice. However, when

contacted by the media, chief court clerk Prak Savuth said that the documents filed by Judge




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA")

Kasper-Ansermet did not constitute a formal complaint against any of his colleagues (OSJI:

2012, 10).

31Open Society Justice Initiative, The Future of Cases 003/004 at the Extraordinary Chambers

in the Courts of Cambodia/ a series issued by the examining progress, priorities, and challenges

at the ECCC, (OSJI, 2012: 2-10)

j. The End of ECCC Mission/ Withdrawal and Dispute Settlement

There is no exact provision both in the Agreement between UN and RGC and the ECCC Law

about the end mission but according to the Article 28 about the Withdrawal of Cooperation 32

stated that Should the Royal Government of Cambodia change the structure or organization of

the Extraordinary Chambers or otherwise cause them to function in a manner that does not

conform with the terms of the present Agreement, the United Nations reserves the right to

cease to provide assistance, financial or otherwise, pursuant to the present Agreement (UN:

2002, 11).

Article 29 Settlement of disputes stated that any dispute between the Parties concerning the

interpretation or application of the present Agreement shall be settled by negotiation, or by any

other mutually agreed upon mode of settlement (UN: 2003, 12).



k. The ECCC Lesson Learned

The Office of Administration is a hybrid system33, with separate and distinct administrative

rules and regulations covering the national Cambodian component and the international United

Nations component. The Acting Director of the Office reports to the Government of Cambodia,

while the Deputy Director reports to the United Nations. They collaboratively manage the

diverse sections under their authority (UN: 2012, 9).

As anticipated by the Secretary-General in his report of 31 March 2003 (A/57/769), the

Extraordinary Chambers have faced fundamental challenges. Tackling these challenges

effectively has proved to be problematic given the decision-making structure within the

Chambers and the oversight arrangements (UN: 2012, 10).

33General Assembly, Report of the Secretary-General of United Nations, (UN, 2012: 9-10)

International judges of the Chambers34 do not comprise a majority in any Chamber and there is

neither a president nor a registrar. There is also no equivalent of the close oversight and




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA"*

decision-making exercised by the management committees of the other voluntarily funded

tribunals. Given that the Chambers are part of the national court structure of Cambodia, and that

the United Nations plays an assistance role through UNAKRT, the Secretariat has no

managerial or administrative authority over the entire court. The United Nations has had to

address the challenges set out herein even without decisive judicial, managerial and

administrative authority (UN: 2012, 11).

34General Assembly, Report of the Secretary-General of United Nations, (UN, 2012: 11)

Governance structure: The lack of a strong decision-making structure35 within the Extraordinary

Chambers has compounded the difficulties in managing them. Each Chamber has a national

judge as its President. The absence of an overall president who represents the Court as a whole,

with broad decision-making authority over both the national and international components, and

of a registrar, with overall administrative and budgetary authority, undermines the coherent

management of the judicial and administrative organization of the Chambers. There have been

unresolved disparate views from within the Chamber, for example, on the question of whether

the Supreme Court Chamber should sit full-time or part-time (UN: 2012, 12).


Allegations of political interference: Public statements36 of opposition at the most senior levels

of the Government of Cambodia with regard to cases 003 and 004, in addition to the numerous

difficulties faced in making progress in the investigation of the two cases, have led to

allegations of political interference in the judicial process and lack of cooperation by the

Cambodian component of the Extraordinary Chambers. Continuing concerns on the part of the

General Assembly about the rule of law and the functioning of the judiciary in Cambodia

resulting from interference by the executive were raised in the 2003 report of the Secretary-

General (A/57/769) (UN: 2012, 12).


The lack of funding37

has already harmed the ability of UNAKRT to appoint new staff and to

extend the contracts of existing staff. Late in 2011, and in 2012, contract extensions were issued

on a monthly basis, placing staff in an unfavourable situation. In addition, a recruitment freeze

was instituted in July 2012, given that the Organization was without the means to enter into and




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA#+

meet additional commitments. The low morale of staff, including judicial officials, is adversely

affecting the effective functioning of the Extraordinary Chambers and the uncertainties

regarding financial stability are adding to the already difficult challenges set out above. A recent

mission to UNAKRT by the Staff Counsellor’s Office confirmed that the continuing financial

constraints that affected staff contracts and extensions were a factor within the Chambers that

was detrimental to the mental health and psychological well-being of the staff. It also

independently confirmed the increasingly low morale of UNAKRT staff, who showed

continuing signs of tension and anxiety (UN: 2012, 14).


Serious allegations38 about corruption on the Cambodian side of the administration of the

Chambers were dealt with through the conclusion of an agreement on an independent counselor

in 2009. Challenges posed by public statements by senior members of the Government of

Cambodia, and allegations of lack of cooperation by the Cambodian component of the

Chambers in the investigation in cases 003 and 004, have required significant time and attention

on the part of senior officials of the United Nations and will need to be dealt with in order for

the success of the Chambers to continue (UN: 2012, 15).

38

General Assembly, Report of the Secretary-General of United Nations, (UN, 2012: 15)

VIII. Recommendations and Discussion

a. ECCC alienation from the political influences

The Royal Government of Cambodia has to obey the Agreement and stop interfering on the

ECCC because The ECCC, the UN, and the court’s donors face a serious problem with Cases

003/004: namely, the Cambodian government’s political opposition to accountability for

Khmer Rouge crimes for all but a small, pre-selected group of persons. To address this problem, the UN, donors, and the court’s staff must rededicate themselves to the task at hand

and demonstrate increased determination to fulfill the court’s mission—including pursuing

Cases 003/004 to their conclusion. As this paper has demonstrated, other options, including

transferring cases to a wholly Cambodian jurisdiction or a partial withdrawal by the UN from

the ECCC Agreement, are untenable. Justice for the Khmer Rouge’s victims requires that the

court complete all of the cases currently before it.




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA#"

b. Independent of Judge and Co-judge

The Cambodian Supreme Council of the Magistracy has to obey the international agreement

with the United Nations to avoid such a decided case regarding to not appointing Mr. Kasper-

Ansermet as an international investigation judge ever happen again because the delay had

affected to the justice finding process. And Cambodian judges, especially investigating judge,

in the ECCC has to perform his/her own duty accordance to international and national laws

regardless of personal interest or political influences unlike a Cambodian co-investigating

judge of Mr. Kasper-Ansermet that not cooperated in Case 003 and 004.

c. Shorten and Precise Work Procedure in Administration

Work procedure in the administrative department has to be shorten and précised in order to

clear all remaining administrative works in time and it can make the overall work of the court

go smoothly. For those rules required by the laws, it has to be maintained but for those rules

that are not for the interest of the court work has to be reviewed.

d. International responsibility regarding to the budget

Urgent and substantial financial contributions are required for the future operations of the

Chambers are to be assured and the unpredictable consequences of a lack of funds avoided. To

put the judicial proceedings before the Chambers in jeopardy for lack of funds would run

counter to the message of “no impunity” that the Secretary-General has consistently underlined

and that has been progressively strengthened through nearly two decades of United Nations and

United Nations- assisted criminal tribunals.

IX. Conclusion

There is no pure justice in this world. There is only compromised justice by the law of the

superior. That means no natural justice but social justice. The path to find justice is a very

challenging way of work because human being likes to do wrong than right but they likes to

obtain right than wrong and live without responsibility toward themselves and an others.

However, in this world there are still plenty of persons love to preserve right and justice for all.

The initiative to create ECCC is a role model for the court system in the world and it created by

whom care and believe in justice.

The process of establishment of the ECCC started since 1997 initiated by the Royal

Government of Cambodia through a co-signed letter from the First and Second Prime Ministerof Cambodia and then the United Nations General Assembly (UNGA) adopted a resolution

57/228 in December 2002 and the court reached the Agreement in 2003 under the Cambodian




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA##

laws along the line of international laws. It needs 6-year of hard work to be born. The court

spent 12-year from 1997 to 2009 to be able to start the first hearing. It involved many people,

spent a lot of money, negotiated a lot of words, consumed a lot of time but it means for justice

and it worth a lot for the victim of the Pol Pot regime.

For the first trail, case 001, started on 17 September 2009 and concluded on 27 November 2010 to charge Duch, head of Toul Sleng prison or S-21 took more than one year to final decision. It

was a long awaited trail by thousands of victims who was so anxious to see perpetrator to face

justice. Then the Court announced to sentence Duch for life imprisonment. The majority of

Cambodian people, 67 percent totally agree with the trail by IRI survey in 2009, are happy with

the court decision-making. Then in 2010, the case 002 started at the Pre-Trail Chamber. In

2012, the case 002/1 and 002/2 went through to the Trail Chamber and in 2013 the case 003 and

004 was being in the hand of Pre-Trail Chamber. It needs a lot more time but I believe the

justice will be preserved. And it is a strong message to all country leaders around the world

including Cambodia to see the consequences of committed crime in every form. The ECCC was

recognized as the role model of the hybrid court for the international court system around the

world. It is a good time that Cambodian court officials can learn a lot of things from the

Extraordinary Chamber in the Court of Cambodia (ECCC) to make the Cambodian judiciary

system more strong.

X. References

1. Lt. General Saroeun, P. (2014). DIFID Strategy of Decho Sen of Cambodia. 242

2. Lt. General Saroeun, P. (2014). DIFID Strategy of Decho Sen of Cambodia. 243

3. GENERAL ASSEMBLY SECURITY COUNCIL. (1999). Report of the Group of Experts

for Cambodia established pursuant to General Assembly resolution 52/135. 7



5. General Assembly. (2003). Resolution adopted on the report of the Third Committee

(A/57/806) 57/228. Khmer Rouge trials/ Recalling its resolution 57/228. 2-12

6. United Nations General Assembly. (2012). Report of the Secretary-General A/67/380/. 81

7. Sok, C. (2001). Constitutional Council/ Case No. 038/001/2001/ Decision No.

040/002/2001. 3

8. Ranariddh, N., Sen, H., (1997). Letter dated 21 June 1997 from the First and Second Prime

Ministers of Cambodia addressed to the Secretary-General, GENERAL ASSEMBLY Fifty- first session Agenda item 110 HUMAN RIGHTS QUESTIONS/ SECURITY COUNCIL/

Fifty-second year/ A/51/930/ S/1997/488. 1




Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA#$









13. United Nations &Royal Government of Cambodia. (2003). AGREEMENT BETWEEN THE



THE PERIOD OF DEMOCRATIC KAMPUCHEA. 2

14. United Nations &Royal Government of Cambodia. (2003). AGREEMENT BETWEEN THE



THE PERIOD OF DEMOCRATIC KAMPUCHEA. 3

15. UN &RGC. (2004). Law on the Establishment of the Extraordinary Chambers, with

inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006). 1-3


(A/57/806) 57/228. Khmer Rouge trials/ Recalling its resolution 57/228. 3


(A/57/806) 57/228. Khmer Rouge trials/ Recalling its resolution 57/228. 2-12

18. Sihanouk, N. (1996). Royal Decree (Reach Kret)/ NS/RKT/0996/72. 1

19. UN &RGC. (2004). Law on the Establishment of the Extraordinary Chambers, with

inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), LAW

ON THE ESTABLISHMENT OF EXTRAORDINARY CHAMBERS IN THE COURTS OF

CAMBODIA FOR THE PROSECUTION OF CRIMES COMMITTED DURING THE

PERIOD OF DEMOCRATIC KAMPUCHEA. 1-3



21. International Criminal Law Services and Open Society Justice Initiative. (2009). Report . 1



23. Srim, K., Cartwright, S. (2011). EXTRAORDINARY CHAMBERS IN THE COURTS OFCAMBODIA INTERNAL RULES (REV.8) AS REVISED ON 3 August 2011. 69




24. Srim, K., Cartwright, S. (2011). EXTRAORDINARY CHAMBERS IN THE COURTS OF

CAMBODIA INTERNAL RULES (REV.8) AS REVISED ON 3 August 2011. 71

25. General Assembly. (2012). Report of the Secretary-General/ United Nations/ A/67/380. 21

26. International Republican Institute. (2009). Survey of Cambodian Public Opinion. 40-43

27. The Center for Justice & Accountability (CJA) &The International Human Rights Law

Clinic. (2011). VICTIMS’ RIGHT TO REMEDY: AWARDING MEANINGFUL

REPARATIONS AT THE ECCC . 1

28. Extraordinary Chamber in the Court of Cambodia. (2014). ECCC Court Report Issue 68. 4

29. Extraordinary Chamber in the Court of Cambodia. (2014). ECCC Court Report Issue 68. 5

30. Open Society Justice Initiative. (2012). The Future of Cases 003/004 at the Extraordinary

Chambers in the Courts of Cambodia/ a series issued by the examining progress, priorities,and challenges at the ECCC . 2-10



32. General Assembly. (2012). Report of the Secretary-General of United Nations. 9-10

33. General Assembly. (2012). Report of the Secretary-General of United Nations. 11




the relation of eccc with the international laws

Documents