Edited By John D. Ciorciari
THE
KHMER ROUGE
TRIBUNAL
Edited By John D. Ciorciari
Documentation Series No. 10
Documentation Center of Cambodia
THE
KHMER ROUGE
TRIBUNAL
Edited By John D. Ciorciari
Documentation Series No. 10 Documentation Center of Cambodia
Copyright © 2006 Documentation Center of Cambodia
All rights reserved. No part of this book may be reproduced
or utilized in any form or by any means, electronic or
mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in
writing from the publisher.
mCŒmNÎl´kßrkm<C— a
EsVgrkKrBitedIm∫IKrcg©Mngi yutF†i mº
Searching for the truth.
Documentation Center of Cambodia
P.O. Box 1110, Phnom Penh, Cambodia
Tel:
Fax:
Email:
Web:
+855 (23) 211-875
+855 (23) 210-358
[email protected]
http://www.dccam.org
Cataloguing in Publication Data
The Khmer Rouge Tribunal / John D. Ciorciari, 2006
1. Cambodia—Politics and Government—1975-1979.
2. Cambodia—History—1975-1979.
3. Cambodia—Law—Human Rights.
Cover and Book Design © 2006 by DC-Cam and Design
Group (Cambodia) Co. Ltd. www.dgcambodia.com
All photos courtesy of Documentation Center of Cambodia,
Youk Chhang and J. Kaufmann collection.
Cover photographs: Khieu Samphan addressing Khmer
Rouge troops along the Thai border, circa 1980, with Ieng
Sary sitting at the far right (top); individual photos of surviving former Khmer Rouge leaders Khieu Samphan, Ieng Sary,
Ieng Thirith, Duch, and Nuon Chea (bottom).
ISBN: 99950-60-02-7
Printed in Cambodia
2
Table of Contents
Foreword & Acknowledgements................4
About the Authors ....................................7
Acronyms & Abbreviations .....................10
Introduction John D. Ciorciari.....................................11
Chapter 1
History of the Khmer Rouge
Tribunal: Origins, Negotiations,
and Establishment
Kelly Whitley.........................................29
Chapter 2
The Crimes to be Judged by the
Extraordinary Chambers
Aubrey Ardema.......................................55
Chapter 3
Mechanics of the Tribunal:
The Rules of Evidence and Procedure
Katrina Anderson....................................81
Chapter 4
Proving Khmer Rouge Abuses:
Uses and Limitations of the
Available Evidence
Julia Fromholz ......................................107
Chapter 5
Delivering Justice for the Crimes of
Democratic Kampuchea
Héleyn Uñac and Steven Liang..............133
Concluding Remarks
The Tribunal’s Broader Roles: Fostering
Reconciliation, Peace and Security
Héleyn Uñac .........................................157
Appendices
Further Reading....................................165
Documents Governing the Tribunal
The Extraordinary Chambers Law ......168
The UN-Cambodian Agreement........186
3
Foreword & Acknowledgements
This volume constitutes part of the Legal Training
Project at the Documentation Center of Cambodia (DCCam). It was made possible through generous grants from the
Bureau of Democracy, Human Rights, and Labor at the U.S.
Department of State, the Royal Netherlands Embassy in
Bangkok, and the Swiss Embassy in Bangkok. The U.S.
Agency for International Development and the Swedish
International Development Cooperation Agency also provided core funds enabling this and other DC-Cam projects.
The Legal Training Project aims to educate Cambodians
about transitional justice and human rights to help develop a
stronger rule of law in the country. The upcoming trials of
former Khmer Rouge officials will be the most highly publicized legal events in modern Cambodian history and present
tremendous opportunities to advance the interrelated goals of
justice, reconciliation, and national development. However,
the tribunal will deliver its potential contribution only if
Cambodians are able to follow and understand the process.
The Legal Training Project—part of DC-Cam’s longterm commitment to legal education—seeks to ensure that
observers at home and abroad learn from the trials, critique
them, and draw meaningful lessons for future legal reform
and practice.
As part of the Legal Training Project, DC-Cam has conducted a series of training courses in Phnom Penh to teach
rising leaders of Cambodian government, academia, non-governmental organizations, and the media about human rights
law. In 2004, the Center organized a six-week course introducing participants to the basic principles of international
criminal law and procedure. In 2005, DC-Cam hosted three
two-week courses focusing on defendants’ rights and the role
of defense counsel in Cambodian criminal courts and the
Khmer Rouge Tribunal.
In connection with those courses, DC-Cam has also produced a set of written course materials in English and Khmer
explaining the basic principles of transitional justice and
international criminal law and discussing how they may
apply to Cambodia. The course materials include summaries
and outlines of major topics, as well as excerpts from relevant
cases, statutes, and treaties. By making these materials avail4
able to interested Cambodian and international law students,
attorneys, and university instructors, the Center seeks to educate members of the legal community about the tribunal
process and related subjects.
One of the dark legacies of the Khmer Rouge regime was
its systematic attack on Cambodian intellectuals, which left
the country with a limited number of lawyers. Without a
sizeable corps of well trained advocates, it is difficult for a
society to develop a real rule of law and to move toward a
more just and democratic future. We hope that this volume—which will also be translated and published in the
Khmer language—will help in training tomorrow’s
Cambodian lawyers and civil society leaders.
Of course, the vast majority of Cambodians are unable to
attend detailed legal training courses. This edited volume is
directed toward a broader public audience and constitutes an
additional element of the Legal Training Project. It attempts to
clarify some of the most important legal and political issues
surrounding the Khmer Rouge Tribunal without undue reference to technical legal jargon. The authors discuss the history
and political context of legal proceedings against former
Khmer Rouge officials, the key legal and procedural features of
the prospective tribunal, the types of evidence available, and
the trials’ potential contribution to justice and reconciliation.
We are grateful for the assistance of DC-Cam’s Director,
Youk Chhang, and the Center’s knowledgeable and dedicated
staff in preparing this book for publication. Dara P. Vanthan,
head of DC-Cam’s Accountability Team and outreach efforts,
contributed expertise on Cambodian criminal law and the
application of international legal principles in Cambodia.
Wynne Cougill helped to edit the volume, as did several DCCam staff members.
A number of legal experts also contributed to this book
indirectly by serving as visiting lecturers for the Legal
Training Project. Professors Ron Slye of the University of
Seattle, Beth Van Schaack of Santa Clara University, and
Noah Novogrodsky of the University of Toronto served as
lecturers in 2004. In 2005, attorneys Alexander Bates,
Wayne Jordash, François Roux, Bun Honn, Huot Vuthy,
Judges Nancy Gertner and Timothy Clayson, and Professors
George Harris, Geert-Jan Alexander Knoops, Linda Carter,
and Abbe Smith lectured at DC-Cam.
5
A number of DC-Cam staff members and visiting summer associates also contributed indirectly to the book.
Bunsou Sour, who heads DC-Cam’s Legal Response Team,
helped to organize and shape the Legal Training Project with
assistance from Sophary Noy, Vireak Sarin, Sochea Phann,
and Terith Chy. International law students Karen Yookyung
Choi, Devon Chaffee, Janet Lee, Gabriel Kuris, and Kevin
Osborne helped to organize and teach the Center’s legal training courses in 2005. By providing insight into international
criminal law and human rights advocacy, all of the project’s
participants aided in the preparation of this volume.
Finally, we thank the sponsors of the Legal Training
Project. We hope that this contribution to education about
the Cambodian tragedy will justify their generosity and
honor the survivors and victims of the Khmer Rouge regime.
6
About the Authors
KATRINA E. ANDERSON recently earned her LL.M.
degree in International Legal Studies at American
University’s Washington College of Law. She continues her
work with the War Crimes Research Office, where she served
as a Dean’s Fellow from 2005-06. She served as an Associate
Legal Advisor to the Documentation Center of Cambodia
(DC-Cam) in 2004 and currently advises DC-Cam’s Film
Project in its documentation of gender-based violence under
the Khmer Rouge regime. Before and during law school, she
worked with migrant workers and refugees on the ThaiBurma border. She earned her B.A. in English from the
University of Virginia and J.D. summa cum laude from the
Seattle University School of Law, where she was Editor-inChief of the Seattle Journal for Social Justice and a founding
member of the Center for Human Rights and Justice.
AUBREY L. ARDEMA served as an Associate Legal
Advisor to DC-Cam in 2004 and currently works at
Bendelow Law Firm, P.C. in Denver, Colorado as a transactional and litigation attorney. In 2002, she served as a legal
intern to Judge Yakov Ostrovsky of the UN International
Criminal Tribunal for Rwanda and has done analysis for the
United Nations Association on the International Criminal
Court. She also has public interest experience as a law clerk in
the Santa Cruz Public Defender’s Office and as a legal counselor at the East San Jose Community Law Center, and she has
worked for the U.S. Department of Labor. She holds a B.A.
from the University of Oregon and J.D. from the Santa Clara
University School of Law, where she was a founding board
member and Article Editor of the Santa Clara Journal of
International Law, earned a specialized certificate in
International Law, and was a Justice John Paul Stevens Public
Interest Fellow. In 2001, she attended the René Cassin
International Institute for Human Rights.
JOHN D. CIORCIARI is an international lawyer and has
served as a Legal Advisor to DC-Cam since 1999. He has conducted extensive research on accountability for the Khmer
Rouge regime and oversees the Center’s Accountability
Project, which entails fact-finding and independent legal
7
analysis. He previously worked as an attorney at Davis Polk
& Wardwell in New York and London and has taught politics
at Oxford University, where he was the Wai Seng Senior
Research Scholar at St. Antony’s College. In 2003 and 2004, he
was a Visiting Research Scholar at the Institute of Defence &
Strategic Studies in Singapore. He holds an A.B. from Harvard
College, J.D. from Harvard Law School, and M.Phil. from
Christ Church (Oxford), where he was a Fulbright Scholar.
JULIA FROMHOLZ served as a Legal Fellow at DC-Cam
during 2004 and currently works in international human
rights advocacy at Human Rights First. She practiced at
Keker & Van Nest in San Francisco after serving as a law clerk
to the Honorable William A. Fletcher on the U.S. Court of
Appeals for the Ninth Circuit. She holds an A.B. from
Harvard College and J.D. from the University of California at
Berkeley (Boalt Hall), where she was Editor-in-Chief of the
California Law Review and a member of the Order of the Coif.
STEVEN A. LIANG served as an Associate Legal Advisor
at DC-Cam in 2004. He is a graduate of Harvard Law School,
where he was a member of the Harvard Asia Law Society, the
Human Rights Journal, and the Journal on Law and Technology.
He holds a B.A. and B.B.A. from the University of Texas at
Austin. His interests include economic development and
human rights law in developing countries and the law governing information technology.
HÉLEYN UÑAC is a Legal Consultant in international
criminal law and human rights law. She coordinated the
Center’s legal training courses in 2005, which focused on
criminal defenses and the upcoming tribunal. Prior to joining the Center, she worked in Kosovo with the human rights
department of the Organization for Security Cooperation in
Europe, as well as with the Criminal Defense Resource
Center. She has also been part of defense teams at the
International Criminal Tribunal for Rwanda and the Special
Court for Sierra Leone. She has worked as an attorney in
France, where she qualified as an avocate in 1996. She holds a
D.E.A. (LL.M.) in private law from the University of Law of
Montpellier in France.
8
KELLY WHITLEY was a Legal Research Fellow at DCCam in 2004. She currently works in business development
at an international development consultancy in Washington,
D.C. Prior to her work at the Center, she served as Aide to
U.S. Ambassador for War Crimes David Scheffer at the
United Nations Association in New York, where she provided Ambassador Scheffer with research and analysis on a range
of international legal matters. She also served as a law clerk at
Kramer & Levin LLP, specializing in New York City land use
and development, and as a consultant for a social development organization in Bogotá, Colombia. She holds a B.A.
from the University of Virginia in Foreign Affairs and an
M.Sc. in Law and Anthropology from the London School of
Economics.
DISCLAIMER: The views expressed herein are solely those of
the authors. This volume does not reflect the policy of any government
or institution with which they are affiliated or of the agencies that
funded this publication.
9
Acronyms & Abbreviations
CPK
CPP
DC-Cam
DK
ECCC
ECCC Law
ICC
ICCPR
ICTR
ICTY
KRT
PRK
RGC
SOC
UN-RGC
Agreement
UNTAC
Communist Party of Kampuchea
Cambodian People’s Party
Documentation Center of Cambodia
Democratic Kampuchea
Extraordinary Chambers in the Courts of
Cambodia (also referred to as the “Khmer
Rouge Tribunal”)
The law governing the ECCC, as promulgated
by the Cambodian government
International Criminal Court
International Covenant on Civil and Political
Rights
International Criminal Tribunal for Rwanda
International Criminal Tribunal for the
Former Yugoslavia
Khmer Rouge Tribunal (a less precise but
more commonly used name for the ECCC)
People’s Republic of Kampuchea
Royal Government of Cambodia
State of Cambodia
The agreement reached between the United
Nations and Royal Government of Cambodia
regarding the parties’ cooperation in connection with the Khmer Rouge Tribunal
United Nations Transitional Authority in
Cambodia
10
Introduction
John D. Ciorciari
Between April 1975 and January 1979, officials and
cadres of the Khmer Rouge regime committed some of the
most heinous abuses of the 20th century. Despite the opacity
of their state of Democratic Kampuchea (DK) and the country’s limited communication with the outside world, it soon
became apparent that Khmer Rouge cadres were carrying out
summary executions on a massive scale, conducting torture,
imprisoning perceived enemies without trials, persecuting
religious and ethnic groups, separating families, and operating thousands of agricultural cooperatives with forced labor.
As part of their ideological quest to create a fully independent and self-sufficient state, Khmer Rouge leaders sought to
eradicate traditional and foreign cultural influences and
return to “Year Zero.” Among other things, this implied separating families, tearing up the roots of existing society,
purging officials of the ancien regime, eliminating ethnic
minorities, “re-educating” learned Cambodians, and crushing
any shreds of foreign subversion or domestic political dissent.
With “eyes like a pineapple,” the xenophobic and insecure
DK regime ruthlessly suppressed the population and perceived enemies lurking behind every tree. Foreign-educated
persons, ethnic minorities, Muslims, Buddhist monks, former Lon Nol officials, and many others became suspects.
Prisons and graves filled with victims denied even the most
rudimentary of trials.
The end of the Khmer Rouge reign of terror in January
1979 exposed the regime’s abuses even more clearly. Official
documents and the physical evidence of atrocities, including
the notorious Tuol Sleng Prison and “Killing Fields” of
Choeung Ek, provided irrefutable proof of suffering and
abuse on a staggering scale. Since then, the Documentation
Center of Cambodia has identified nearly 20,000 mass graves
and 189 rudimentary Khmer Rouge detention centers littered across the country. Although it has been difficult to
establish the precise number of deaths in Democratic
Kampuchea, even low scholarly estimates put the figure at
11
roughly 1.7 million, over 20 percent of the population. Many
others believe the total exceeded two million, approaching
one-third of the country’s inhabitants.
Even this gory death toll paints only part of the picture; documents and testimony from survivors describe countless other
abuses in Democratic Kampuchea that did not result in the loss
of life. These included widespread torture, arbitrary imprisonment, forced separation of families, and the denial of the most
basic freedoms of worship, expression, and human intimacy.
If the sheer number of Khmer Rouge abuses is shocking,
it is the details of individual offenses that cry even more stridently for justice. Young Khmer Rouge cadres with frozen
glares lined up their family members and shot them between
the eyes to protect the revolution from “old thinking.”
Prisoners accused of stealing chickens, rice, or even edible
leaves to fend off starvation were strapped to corroded bed
frames and burnt with glowing embers. Elderly people
worked as slaves in the fields, doggedly harvesting rice as
their hoes unearthed the bones of fellow villagers. Suspected
traitors kneeled beside huge mass graves, peering down at the
remains for prior victims and awaiting a blow by axe-handle
that Khmer Rouge cadres would use to seal their fate without wasting precious bullets. Perhaps most painfully of all,
millions of victims passed their days and nights wondering if
they would ever see their loved ones again.
The Long Path to Justice
Despite the unspeakable horrors that occurred in
Cambodia between 1975 and 1979, no Khmer Rouge official
has ever been held criminally responsible for the regime’s
atrocities in a credible court of law. Some of the most infamous Khmer Rouge leaders have passed away in recent
years—including Party Secretary Pol Pot, Defense Minister
Son Sen, Education Minister Yun Yat, and Zone Commander
Ke Pauk—and some observers fear that most of the architects
of Khmer Rouge terror will live their entire lives without facing legal sanctions. One of the most infamous former DK
officials has experienced bouts with illness in the past 18
months—Duch, the former chief of the feared security Tuol
Sleng Prison. The one-legged former military leader Ta Mok,
known by many as “the Butcher” for his brutal methods, died
in July 2006 and will never stand trial for his historically
12
undisputed abuses. The recent death of former Serbian leader
Slobodon Milosevic provides another forceful reminder that
time is of the essence if individuals are to be held accountable
for the crimes of Democratic Kampuchea.
Several of the principal officials of Democratic Kampuchea
remain alive, and most live freely, enjoying near-total impunity over a quarter century after the demise of the DK regime.
Pol Pot’s Deputy Prime Minister, Ieng Sary, resides in a spacious villa in central Phnom Penh, only blocks away from the
Documentation Center and the Prime Minister’s mansion.
Living with him is his wife, former Minister of Social Affairs
Ieng Thirith. Former Deputy Secretary Nuon Chea and DK
President Khieu Samphan are retired and live in relatively
spacious homes near the Thai border. Among the likely defendants before the Khmer Rouge Tribunal, only Duch is under
arrest for his alleged offenses.
Nearly three decades have elapsed since the demise of
Democratic Kampuchea, and there is a danger that some
observers will relegate the Khmer Rouge period to the history books. To do so would be an unpardonable abdication of
moral responsibility. The abuses of the Khmer Rouge regime
are not just shards from the country’s shattered past; they are
alive in the hearts and memories of millions of ordinary
Cambodians. The pain of that period cannot be erased, but a
credible accountability process can help Cambodians come to
terms with their troubled history and move toward a more
promising future. The international community also bears an
obligation to make a stand. Abuses like those committed in
Democratic Kampuchea simply cannot be tolerated in any
corner of human society.
Countless individuals, organizations, and governments
have called for justice in Cambodia, but creating a judicial
forum to put former Khmer Rouge officials on trial has been
a slow, difficult process. Until the late 1990s, local efforts to
deliver justice lacked legitimacy and failed to meet basic
standards of due process. At the same time, attempts by foreign organizations and individuals to promote accountability
were buried beneath broader political and strategic considerations. Only in recent years have the Cambodian government
and the United Nations pursued accountability for the
Khmers Rouges in a more serious fashion.
After protracted negotiations between UN and Cambodian
13
officials, and more than a quarter century after the collapse of
Democratic Kampuchea, a tribunal finally began to take shape.
In June 2003, the United Nations and Royal Cambodian
Government concluded an agreement to establish
Extraordinary Chambers in the Courts of Cambodia. These
chambers constitute the tribunal, and the Cambodian National
Assembly promulgated a UN-approved law to govern the
ECCC in 2004. (In this volume, the Extraordinary Chambers
are referred to as the “ECCC,” the law governing them is the
“ECCC Law,” and the agreement between the United Nations
and Royal Government of Cambodia is the “UN-RGC
Agreement.”) International donors subsequently agreed to provide $43 million for the tribunal if the Cambodian government
would contribute $13.3 million. Led by a number of Asian and
Western countries, the international community met its target
and is now helping Cambodia identify ways to fill its remaining budgetary shortfall. Both domestic and international officials believe that the financing gap can be overcome.
With the tribunal established, the commencement of criminal proceedings is finally in sight. The tribunal will be staffed
by both local and international judges, prosecutors, investigators, and court administrators. As of July 2006, preparations
for the trials are well underway. The Cambodian government
appointed Cambodian lawyer Sean Visoth as administrative
Director for the ECCC in late 2005 and approved the UN’s
nominee for Deputy Director, Chinese diplomat Michelle Lee.
In early 2006, the Cambodian government decided that the
tribunal would be housed in a former military building in the
western outskirts of Phnom Penh. UN Secretary-General Kofi
Annan submitted nominations for the international judges and
prosecutors to work beside Cambodian colleagues on the tribunal, and the Cambodian government followed with its own
nominations. In May 2006, King Norodom Sihamoni formally approved a list of 17 Cambodian judges and prosecutors, as
well as 13 international counterparts from Australia, Austria,
Canada, France, Japan, New Zealand, the Netherlands, Poland,
Sri Lanka, and the United States. All but the three reserve
international officials were sworn into office in July, and trials
are expected to begin in early 2007. It is more likely than ever
that former Khmer Rouge officials will stand trial for the abuses of Democratic Kampuchea.
14
Overview of this Volume
This edited volume describes and analyzes the Khmer
Rouge Tribunal. It is an effort to introduce the Cambodian
accountability process to readers who are relatively unfamiliar with the subject and to stimulate dialogue and reflection
among those who have followed events more closely. It discusses the origins and evolution of the tribunal, putting its
creation in historical and political context and explaining
how and why a criminal proceeding has been so slow to materialize in Cambodia. It also endeavors to explain the “mixed”
domestic and international composition of the Extraordinary
Chambers and reviews some of the strengths and shortcomings of this hybrid judicial forum. It then examines the laws
and procedural rules that will govern the tribunal proceedings, highlighting problematic provisions and omissions that
could present obstacles to fair and efficient criminal trials. It
surveys the potential evidence available against likely defendants and assesses the likelihood that strong prosecutorial
cases will be presented against former Khmer Rouge officials.
Finally, it explores the capacity of the tribunal to deliver
meaningful and credible justice to Cambodians and to
advance the country’s process of reconciliation.
The Tribunal’s Historical and Political Context
The Khmer Rouge Tribunal is part of a broader trend in
international law and politics to establish accountability for
individuals who commit grave human rights violations,
whether in the context of interstate armed conflict or in their
home countries. The archetype of the modern international
criminal tribunal was the famous court at Nuremberg, which
tried former Nazi officials for war crimes and other grave
offenses. Despite criticisms that the Nuremberg judgments
represented “victor’s justice,” the tribunal did acquit some
defendants for lack of evidence, and most observers concluded that the tribunal delivered fair and credible verdicts. The
Tokyo Trials of wartime Japanese officials also enjoyed general international acceptance, and together with the
Nuremberg court, they appeared to pave the way toward a
more robust system of international criminal accountability.
The onset of the Cold War greatly diminished the feasibility of putting alleged human rights violators on trial, how15
ever. Perceived strategic imperatives generally outweighed
concerns for international justice, and even the most heinous
regimes often secured political and military protection by
aligning with one of the superpowers. The United Nations
often found itself crippled by a divided Security Council, and
international criminal law lost much of its postwar momentum. In Chapter 1, Kelly Whitley describes how the polarized international environment frustrated efforts to hold
Khmer Rouge officials responsible for the crimes of
Democratic Kampuchea in a credible judicial forum. She discusses the shortcomings of the 1979 tribunal convened by the
People’s Republic of Kampuchea shortly after the Pol Pot
regime lost its grip on power. She then describes how the
Khmers Rouges avoided real international censure for their
atrocities during the 1980s, when they became pawns in a
broader regional and geopolitical conflict pitting the Soviet
Union, Vietnam, and their Southeast Asian allies against
China, Thailand, and the Western powers.
In Southeast Asia and elsewhere, the collapse of the Soviet
Union and the end of the Cold War created new opportunities for achieving international criminal justice, reducing the
pre-existing geopolitical barriers to prosecution. Beginning
in 1993, a number of international and mixed criminal courts
were created to deal with serious human rights abuses in
parts of the world. The UN tribunals for the former
Yugoslavia and Rwanda were the first of this genre, attracting enormous resources and attention as models for ensuring
accountability in the new global order.
The rapid development of international criminal law in
the 1990s emerged, in large part, as a result of two interrelated trends. First, the end of the Cold War brought a collapse of
political regimes throughout the developing world. Many
weak regimes came under severe challenge, precipitating a
spike in armed internal conflict and increase in mass violations
against innocent civilians. Second, unsavory political regimes
and organizations that had enjoyed superpower protection for
strategic reasons were no longer shielded them from the
organs of international justice. In the post-Cold War order, the
Western powers possessed greater scope for action and were
better able to advance their values, norms, and interests
through the establishment of international criminal proceedings. This enabled the rapid development of international
16
humanitarian and human rights law and instruments.
The idea for a Khmer Rouge Tribunal re-emerged in this
context, as the end of Cold War conflict in Indochina and the
establishment of relative peace in Cambodia increased the
practical and political possibility of putting the Khmers
Rouges on trial. As Whitley discusses, the UN Transitional
Authority in Cambodia—which administered Cambodia for
roughly eighteen months after the Paris Peace Accords of
1991—and the country’s UN-supervised elections in 1993
marginalized the Khmers Rouges politically but did not
bring about their military defeat. Disbanding the Khmer
Rouge organization and bringing key members to justice
remained an important, but unfulfilled, step in moving
toward a more genuine state of peace and reconciliation.
With the former leaders of Democratic Kampuchea at
large in the jungle, criminal trials were still impracticable.
Nevertheless, the political push for accountability increased
in 1994, when the U.S. government passed the Cambodian
Genocide Justice Act, providing funds for the collection of
documentary and other potential evidence against Khmer
Rouge officials. This led to the establishment of the
Documentation Center of Cambodia as a field office of Yale
University’s Cambodian Genocide Program and laid some of
the groundwork for possible trials.
At that time, most Western governments and UN officials assumed that any tribunal would follow the model
established for the former Yugoslavia, dominated by international staff and resources and situated abroad if domestic sites
were considered insufficiently secure. However, the practical
difficulty of apprehending likely defendants delayed the
establishment of a tribunal for Cambodia, and even after several former Khmer Rouge leaders were in custody, political
factors continued to delay its establishment. As Whitley
notes, the 1996-97 period was a turning point in efforts to
hold the Khmers Rouges accountable for their alleged
crimes. Defections and military setbacks precipitated the virtual collapse of the Khmer Rouge organization, the apprehension of several key suspects made criminal trials possible
for the first time, and UN and Cambodian officials began to
pursue the creation of a tribunal.
While negotiations began for a Khmer Rouge Tribunal,
the broader environment of international criminal law was
17
changing. The ad hoc international tribunals for the former
Yugoslavia and Rwanda provided invaluable legal judgments
and precedents, but they also possessed important flaws.
These included high costs, large bureaucracies, slow proceedings, and a relatively weak connection to the domestic constituencies they were intended to serve. The physical location
of the tribunals in The Hague and Tanzania meant that while
the tribunals were presumably more secure, they were also
less accessible to the populations victimized by mass human
rights abuses. The international character of the trials also
diminished opportunities for close collaboration with local
jurists, attorneys, and investigators. This led critics to portray
them as instruments of Western political intervention.
As the shortcomings of the ad hoc international tribunals
became apparent, other models became attractive, leading to
the creation of the International Criminal Court in The
Netherlands and special hybrid or “mixed” tribunals characterized by joint local and foreign participation. These included the East Timor Serious Crimes Special Panels in 2000, the
Kosovo Courts’ so-called “Panels 64” in 2000, and the Special
Court for Sierra Leone in 2002. The Cambodian
Extraordinary Chambers fit into this “second generation” of
international criminal justice mechanisms. Ironically, these
mixed tribunals are often said to follow the “Cambodia
model,” because negotiations over the Khmer Rouge
Tribunal began before discussions about courts in East Timor,
Sierra Leone, or Kosovo. Justice in Cambodia has been long
delayed.
Determining the form of the Khmer Rouge Tribunal—
domestic, international, or mixed—became a highly contentious political issue for a number of reasons. Mutual mistrust between the governing Cambodian People’s Party (CPP)
and its domestic and Western opponents lay at the heart of the
dispute. CPP officials were wary of a UN-dominated accountability process that could be used by foreign powers and allied
domestic political parties to undermine the Party’s legitimacy
and standing. Cambodian leaders also feared that an overly
expansive or zealous prosecution could destabilize the country
and precipitate a new wave of violence. Many Western governments and domestic opposition parties believed that the CPP
leadership lacked the competence and commitment to human
rights principles that would be necessary to deliver credible
18
justice and develop the country’s rule of law. Moreover, opponents of the CPP were concerned that the Party would subordinate law to politics, using the tribunal as an instrument to
build its popularity in Cambodia and defuse pressures to further democratize or reform.
Whitley describes the negotiations between the
Cambodian government and the United Nations to create a
Khmer Rouge Tribunal, arguing that the basic features of the
tribunal reflect compromise but more closely approximate
the model preferred by the Cambodian government. The
United Nations sought a greater degree of international control over the proceedings, but political forces diminished the
negotiating leverage of the United Nations and resulted in a
mixed tribunal with a preponderantly domestic character. A
mixed panel of three Cambodian and two international
judges will adjudicate the criminal cases, while a panel of
four Cambodian and three international judges will then hear
appeals. Although a “supermajority” provision requires four
votes in the trial chamber and five in the appeals chamber to
reach a decision, the Khmer Rouge Tribunal gives local
authorities a stronger role in the proceedings than the hybrid
courts in East Timor or Sierra Leone.
The Tribunal’s Jurisdiction
Determining the “balance of influence” between the
United Nations and Cambodian government in the Khmer
Rouge trials was the most heavily politicized aspect of the
tribunal negotiations, but it was only one of many complex
issues that had to be resolved for the Extraordinary Chambers
to take shape. The establishment of any special tribunal,
whether domestic or international in nature, also requires
determining the scope of the court’s authority. In Cambodia,
local, regional and international rivalries have made these
jurisdictional issues particularly sensitive.
UN and Cambodian officials quickly agreed on the time
period during which alleged crimes must have occurred to be
subject to the tribunal’s jurisdiction. The dates April 17,
1975 to January 6, 1979 correspond to the period of de facto
Khmer Rouge control over Cambodia, but they also help to
ensure that only former Khmers Rouges will be tried. Abuses
committed during the Cambodian Civil War of 1970-75 or
the Third Indochina War of 1979-91 will not fall under the
19
court’s jurisdiction. By protecting many foreign and domestic groups from possible prosecution, this provision was a virtual imperative in building political support for the
Extraordinary Chambers, both at home and abroad.
The more difficult issue was to determine the number of
defendants to be tried. As a number of authors in this volume
discuss, choosing whom to prosecute has been the subject of
heated controversy in the lead-up to the Khmer Rouge
Tribunal. For reasons discussed in Chapter 1 and elaborated
in subsequent chapters, the tribunal’s competence is limited
by a relatively vague provision that permits prosecution only
of “senior leaders” and others deemed “most responsible” for
grave human rights abuses in Democratic Kampuchea. Over
time, the expectations of the United Nations and Cambodian
government appear to have converged, and trials of more than
ten to twelve former DK officials appear unlikely. For better
or worse, these limits of the court’s jurisdiction have also been
critical in securing the necessary political support for trials to
proceed.
Choosing the Crimes to Adjudicate
A less contentious but nonetheless challenging set of
issues has surrounded the substantive law that the Khmer
Rouge Tribunal will employ to put former DK officials on
trial. As Aubrey Ardema discusses in Chapter 2, the architects of the Extraordinary Chambers had to deal with certain
legal complexities arising from the fact that the alleged
crimes occurred over a quarter of a century ago. Justice
requires that former Khmer Rouge officials be tried only for
crimes that existed during the DK period. Since both international criminal law and Cambodian domestic law were in
flux during the 1970s, choosing the right set of laws to apply
was not always obvious.
As Ardema describes, the drafters of the ECCC Law and
UN-RGC Agreement ultimately settled on a mix of offenses
including the well known international crimes of genocide,
war crimes, and crimes against humanity, as well as the
domestic crimes of torture, homicide, and religious persecution. The court will also be able to hear cases relating to the
lesser-known international offenses of destruction of cultural
property and crimes against internationally protected persons. The definitions of these crimes vary in clarity and com20
plexity, and Ardema discusses a number of the critical judgments that the Khmer Rouge Tribunal will have to make in
determining the precise requirements to establish guilt for
each offense.
Judges will also have to deal with complex issues surrounding defendants’ criminal responsibility for various
forms of direct and indirect conduct that contributed to the
abuses of Democratic Kampuchea. Ardema discusses when
superior orders, exhortations, conspiracy, assistance, and complicity may constitute criminal action under the laws governing the Khmer Rouge Tribunal. These relatively technical
and arcane legal issues will have tremendous practical relevance for prosecutors and defense counsel as they litigate the
claims.
Ardema also discusses the potential defenses that Khmer
Rouge defendants will be able to raise at trial. To promote
justice, reconciliation, and the rule of law in Cambodia, it is
imperative not only that those most responsible for the abuses of Democratic Kampuchea be held accountable, but also
that they possess a fair opportunity to defend themselves and
that their alleged crimes be proven to a legal standard. Most
historians and lay observers have long since concluded that
Khmer Rouge leaders are guilty of heinous international
crimes. Films, museum exhibitions, scholarly works, and harrowing survivor accounts have illustrated the horrors of the
1975-79 period and brought worldwide infamy to the “Pol
Pot regime.” It is beyond doubt that elements of the DK government perpetrated myriad criminal offenses. However, if
the Khmer Rouge Tribunal is to be successful, the court must
avoid prejudging criminal cases against particular individuals, ensure due process, and force prosecutors to prove crimes
with clear and credible evidence.
Procedural Features of the Tribunal
The rules of evidence and procedure that will govern the
trials of former Khmer Rouge officials are designed to ensure
that the tribunal and other criminal courts carry out their
functions transparently, efficiently, and in accordance with
due process of law. In Chapter 3, Katrina Anderson highlights the importance of procedural regularity in the
Extraordinary Chambers and describes the basic rules set
forth in the ECCC Law, UN-RGC Agreement, and other
21
applicable laws. However, she notes a number of concerns
relating to ambiguities in the tribunal’s operating structure
and the rules governing its conduct. How judges, investigators, and prosecutors interpret and implement these rules will
have a critical impact on the course of the proceedings and
their capacity to deliver credible justice.
Much of the concern over the tribunal’s form and procedure relates to the mixed character of the Extraordinary
Chambers. Investigative, prosecutorial, and judicial duties
will all be divided between Cambodian and international personnel. Cambodian and international co-Prosecutors and coInvestigating Judges will prepare the criminal cases. As
Anderson discusses, this creates the possibility of divergent
views and procedural complications, and unclear provisions in
the rules leave doubts regarding how certain disputes among
co-Prosecutors or co-Investigating Judges may be resolved.
Anderson also discusses some of the key issues that the
Extraordinary Chambers will face in connection with the
rules of evidence. The law will enable the Khmer Rouge
Tribunal to consider a wide range of information in weighing
the probability of defendants’ guilt, but the age of many
pieces of information, the highly politicized history surrounding the Khmer Rouge regime, and the sheer complexity of adjudicating alleged crimes of such breadth will require
judges to devote special attention to the reliability and
authenticity of proposed evidence.
Finally, Anderson analyzes the procedural rights of defendants, witnesses, and victims at trial. These are equally important preconditions for a fair trial, and some grounds for concern
exist. While the Khmer Rouge Tribunal will grant defendants
the right to appeal decisions of the trial chamber, the applicable rules offer less clarity on a defendant’s right to avoid selfincrimination. The Extraordinary Chambers’ obligation to protect witnesses and victims from harm is also relatively vague,
although many fear for their safety, and some have already gone
into hiding. In addition, no clear mechanism for victim compensation exists. Meaningful compensation for such vast abuses may be a practical impossibility, but the vagueness of the
rules means that the tribunal will have considerable latitude in
deciding how to protect all parties’ rights. The ECCC must do
so as fully as possible to deliver credible justice and establish a
sound precedent for a stronger rule of law in Cambodia.
22
Proving the Guilt or Innocence of the Khmers Rouges
Fair trials also require that convictions be based on sound
proof and that guilty verdicts are not simply a foregone conclusion. Treating the alleged perpetrators of Khmer Rouge
atrocities with fairness may be politically or morally challenging at times, but the tribunal’s legacy requires an evenhanded administration of justice. In Chapter 4, Julia
Fromholz describes some of the potential evidence that is currently available against former officials of the Khmer Rouge
regime. Focusing on the holdings of the Documentation
Center of Cambodia and the Tuol Sleng Genocide Museum,
she notes the wide range of materials that could contribute to
a finding of guilt or innocence, including official Khmer
Rouge documents, interview transcripts, and physical evidence of abuses in Democratic Kampuchea.
Fromholz discusses both the strengths and weaknesses of
this potential evidentiary material. A vast body of information proves the occurrence of widespread abuses beyond any
reasonable doubt. Sources also suggest very strongly that the
reign of terror in Democratic Kampuchea occurred throughout the country, that leaders encouraged or condoned at least
some such abuses, and that certain minority groups suffered
disproportionate targeting or abuse. However, comparatively
few “smoking gun” documents exist to connect surviving former Khmer Rouge leaders directly to crimes committed in
the field. The death of most second-tier Khmer Rouge officials since 1979 also means that extensive testimony from
“insiders” may be difficult to obtain. In addition, coded language in official Khmer Rouge documents and the complexity of the alleged offenses may require convincing expert testimony in addition to documentary materials, physical
remains, and witness testimony.
In short, proving many of the alleged crimes will likely
require piecing evidence together like a jigsaw puzzle.
Defense attorneys will seek to exploit gaps in the evidentiary
chain to establish doubt and secure acquittals. Fromholz uses
three case examples to show where prosecutors are more or
less likely to have extremely strong cases. As she argues, proving torture and certain crimes against humanity will probably be easier than convicting defendants for genocide.
Available information indicates quite clearly that torture and
executions occurred at state-operated facilities, and certain
23
documents tie senior officials quite directly to those abuses.
The sheer mass of information about other crimes against
humanity also suggests at least a degree of knowledge and
complicity among senior leaders. Although the tribunal must
adhere to a presumption of innocence, defense attorneys will
almost certainly have to contend with considerable evidence
of these offenses.
A crime that may be more difficult to prove is genocide,
the “crime of crimes,” which has become closely associated
with Democratic Kampuchea in popular lexicon. Countless
historians, lawyers, journalists, and human rights organizations have referred to the Khmer Rouge regime as “genocidal,” and if the Khmer Rouge tribunal does not find defendants guilty of genocide, it may face considerable public criticism. Since the era of Nazism, many of the most heinous
international crimes have been classified as genocide, and
that term has come to signify the utmost in abuse and suffering. Referring to Khmer Rouge atrocities as anything short
of genocide could therefore cause dismay among many
Cambodians, who quite rightly perceive their own era or suffering as among the worst in modern history.
Nevertheless, as Fromholz discusses, proving genocide in
Democratic Kampuchea may not be a simple affair. Proving
genocide requires establishing that Khmer Rouge officials
targeted certain protected groups for destruction, such as ethnic clans, racial minorities, or religious groups. Statistically,
most of the victims of Democratic Kampuchea were ethnic
Khmers like the Khmer Rouge leadership, leading some
scholars to refer to their abuses as “auto-genocide.” Whether
the court decides that killing one’s own can constitute genocide will be among the most legally important decisions that
the tribunal judges will have to make. The court’s verdict on
whether particular defendants were guilty of genocide—
whether against other Khmers, Buddhist monks, ethnic
Vietnamese, and Cham Muslims—will be among the most
politically sensitive and eagerly awaited findings of the entire
accountability process.
Ensuring that Justice is Done
The Khmer Rouge Tribunal could satisfy much of its
domestic and international audience simply by returning
guilty verdicts against all of its defendants and pronouncing
24
their abuses as genocidal. The surviving leaders of the Khmer
Rouge regime have few friends in the world, and even fewer
that would spend real political capital to defend them against
conviction. However, delivering justice requires addressing
the future as well as the past. As Héleyn Uñac and Steven
Liang discuss in Chapter 5, the Extraordinary Chambers have
the potential to set an example of fairness and transparency,
facilitate a transfer of skills to local officials, and enhance
public confidence in Cambodia’s beleaguered and notoriously corrupt judicial system.
Uñac and Liang differentiate between two types of justice—retributive and restorative—and note that guilty verdicts and life imprisonment will satisfy only the first. By
punishing certain Khmer Rouge leaders that are proven to be
guilty and by condemning them as criminals, the
Extraordinary Chambers can give voice to the victims of
Democratic Kampuchea and achieve a measure of retribution.
Trying only a small number of leaders means that many victims will not achieve justice vis-à-vis the low-ranking Khmer
Rouge cadres who inflicted direct harm upon their loved
ones. The tribunal will not be able to erase all of the impunity that lingers after the large-scale human rights abuses of the
DK era, but prosecuting those most responsible for the
tragedy is a compromise that other aggrieved societies have
also been forced to make in what scholars refer to as the problem of “selective justice.”
While trials of selected Khmer Rouge leaders help to
deliver retributive justice, Uñac and Liang note that no jail
sentence will be able to restore the life, property, and wellbeing that victims lost between April 1975 and January
1979. Even meaningful financial compensation, never sufficient to heal the wounds of such a tragedy, is unlikely given
Cambodia’s dearth of resources. Nevertheless, the Khmer
Rouge Tribunal can help provide a measure of restoration by
delivering fair verdicts that deter future abuses, challenge the
culture of impunity, and set a judicial standard that moves
the country toward a more robust rule of law.
Moving Toward Genuine Reconciliation
The Khmer Rouge Tribunal also has a role to play in the
broader process of reconciliation in Cambodia, as Héleyn
Uñac emphasizes in concluding remarks to this volume. Even
25
if trials are limited to a small number of defendants, seeing
justice done can help victims of Democratic Kampuchea
escape the shadows of the past and rebuild their faith in the
rule of law. This process is imperative as they work toward a
brighter shared future with the former Khmer Rouge members who continue to live beside them, interspersed in communities throughout the country.
The tribunal can also play an essential function in disseminating the historical truth about the Khmer Rouge regime.
Survivors of Democratic Kampuchea certainly know that
mass human right abuses occurred, but in interviews they
often express a desire to understand why they were forced to
endure such unspeakable suffering. Hearing perpetrators,
eyewitnesses, experts, and court officials elaborate upon the
reasons for the atrocities will help Cambodian survivors
achieve a greater degree of historical and personal closure on
an episode that continues to haunt the society in myriad ways.
In addition to benefiting survivors of the 1975-79 period,
disseminating the truth in a public forum will help their
children by showing the need for a just and orderly society
and the perils of a breakdown in the rule of law. Roughly 60
percent of the country’s current citizens were born after the
Khmers Rouges were gone from power and have no firsthand experience of the pains that their parents’ generation
suffered. From early ages, they hear about the terror through
the personal revelations of traumatized survivors who rarely
saw more than long forced marches, overworked rice fields,
and the insides of rural schoolhouses converted into prisons.
Many schools still do not teach about the Democratic
Kampuchea period. The Khmer Rouge Tribunal can serve as
a definitive source of history about the regime, informing and
supplementing the accounts given in school textbooks, museums, and newspapers. Only in this way can young
Cambodians make sense of their country’s troubled history
and better prepare themselves to prevent human rights abuses in the future.
For survivors of the DK regime and their children and
grandchildren, the Khmer Rouge Tribunal is not a panacea.
It cannot replace lost loved ones, deliver water to fields in
need of irrigation, cure diseases, or end many other problems
that face Cambodian society. However, a well-run tribunal is
a necessary step to establish justice in the country and escape
26
the shadows of the past. It can assist individual victims in forgiving others for past abuses and achieve a degree of closure,
enabling them to move on with their lives with a greater
sense of inner peace. It can also help Cambodia develop
enhanced legal and judicial capacity, facilitating the country’s
progress toward sustainable development. As the rule of law
takes deeper root, the tribunal can function like a rudder that
gently steers Cambodian government and society toward a
more promising future.
27
Khieu Samphan, President of Democratic Kampuchea receives a Lao
delegation led by Lao Prince Souphanavong
28
1
History of the Khmer Rouge Tribunal:
Origins, Negotiations, and Establishment
Kelly Whitley
The reign of the Khmers Rouges in Cambodia ranks as
one of the most horrific episodes in modern history. Between
April 1975 and January 1979, the Democratic Kampuchea
(DK) regime employed radical and brutal methods in an
attempt to create an agriculturally based, “purely Khmer”
society. To achieve these revolutionary goals, members of the
regime ordered and tolerated summary executions, torture,
imprisonment without trial, elimination of health care, religious persecution, and forced labor and migration on a massive scale. Domestic opponents to the Khmers Rouges allied
with Vietnamese forces to topple the DK regime in January
1979. Flawed attempts to try Khmer Rouge leaders in
domestic courts followed, but they had little international
participation and did not result in arrests or punishment of
any high-level DK officials.
In essence, the crimes of Democratic Kampuchea have
gone unpunished. Only in 1997, after nearly two decades of
relative inaction by the international community on the matter, did the United Nations (UN) and the Royal Government
of Cambodia (RGC) begin to discuss establishing a tribunal
to try the alleged perpetrators. Laborious and sometimes acrimonious debates ensued concerning the type and mandate of
the proposed “Khmer Rouge Tribunal.”
In January 2001, the Cambodian National Assembly
approved a draft law (the “ECCC Law”) establishing the
Khmer Rouge Tribunal in the form of so-called Extraordinary
Chambers—a mixed judicial forum with domestic and international features and participation—to try the alleged crimes
of the DK regime. After almost six years of negotiations, the
United Nations and the Cambodian government reached an
agreement (the “UN-RGC Agreement”) in 2003 regulating
their cooperation in connection with the tribunal. In October
29
2004, the Cambodian National Assembly adopted the UNRGC Agreement and amendments to the 2001 ECCC Law,
promulgating them as official legislation.
Cambodia’s history since the fall of the Khmer Rouge
regime is a complicated one. It is impossible to understand
the country’s arduous process toward accountability without
understanding the historical context in which the process
occurred. This chapter briefly chronicles Cambodian history
since the overthrow of the DK regime in January 1979,
focusing on attempts both at home and abroad to hold former
Khmer Rouge officials accountable for their alleged atrocities. It begins by tracing the course of events that frustrated
efforts at accountability in Cambodia for over two decades.
The second section includes a discussion of the negotiations
that ultimately led to the promulgation of the UN-RGC
Agreement and amended ECCC Law in October 2004. The
third section analyzes the developments in domestic and
international politics that made the tribunal’s creation possible in Cambodia. The conclusion of this chapter discusses the
positions held by critics and advocates of the mixed tribunal
in its legislated form.
The Khmer Rouge Tribunal has been one of the most
hotly contested issues in international law and modern
Cambodian life for the better part of a decade, and it is the
product of considerable compromise. Its ability to validate its
supporters’ claims and refute its many critics will be crucial
if Cambodia is to achieve the goals of justice and reconciliation that the survivors of Democratic Kampuchea have awaited for so many years.
Conflict and Khmer Rouge Impunity, 1979-1997
In December 1978, in response to continued provocations
and mounting Khmer Rouge border attacks, Cambodian
resistance fighters and allied Vietnamese military forces
swept into Democratic Kampuchea. In less than a month, the
allied forces ousted the Khmer Rouge regime from Phnom
Penh and secured control over most of the country. Aided by
Chinese advisors, the Khmer Rouge leadership fled to the
western part of the country and took refuge in the dense jungles of the Cardammon mountain range near the Thai border.
Though no longer in power, they posed a considerable threat
to the country’s relative peace and security in the newly
30
established People’s Republic of Kampuchea (PRK) under
Heng Samrin. Under the cover of the jungle and with support from foreign governments, the Khmer Rouge forces
were able to regroup, regain strength, and wage asymmetrical guerrilla warfare against the vastly superior PRK and
Vietnamese conventional forces. Measures were needed not
only to hold individuals accountable for the serious human
rights abuses inflicted upon the Cambodian population
before December 1978, but also to set a precedent that would
deter Khmer Rouge cadres and their opponents from future
atrocities in the context of ongoing low-intensity warfare.
The 1979 Trial – A First Step Towards Justice?
Eight months after the fall of the Khmer Rouge regime,
the new PRK government attempted to deal with the problem of Khmer Rouge impunity. The PRK Ministry of Justice
conducted a trial in absentia in Phnom Penh of former DK
Prime Minister Pol Pot and former DK Deputy Prime
Minister in charge of foreign affairs, Ieng Sary. The People’s
Revolutionary Tribunal lasted just five days. In the end the
“Pol Pot-Ieng Sary clique” was found guilty of genocide and
sentenced to death. The significance of the trial is largely
unrecognized, but it set a historical precedent. It was the first
attempt made to reconcile Cambodians with their horrific
past. It was also the first trial to hold individuals accountable
for acts defined under the 1948 Genocide Convention.
Moreover, the trial took place at a time when the perpetrators
still controlled much of the country’s territory, and the defendants could not be apprehended.
The trials were met with general acceptance by the local
population—largely on moral and political grounds—but
were rejected by most of the international community as
“sham trials.” Although the murderous “Pol Pot clique” had
been deposed, the PRK government also faced many critics at
home and especially abroad. The vast majority of Cambodians
welcomed the removal of the Khmers Rouges from power, but
many resented the presence of thousands of Vietnamese troops
and advisors in the country. Many also criticized the new
political order as insufficiently representative. On an international level, the ideological divide of Cold War politics came
to dominate the context of the trials. Many international
organizations and foreign governments viewed the PRK
31
regime as a pawn of the Soviet-supported communist state of
Vietnam. Outside of the Soviet bloc, there was a widely held
view that the proceedings were “sham trials” staged to justify
Vietnamese intervention in Cambodia and broader SovietVietnamese aspirations to secure hegemony in Indochina.
Legal experts also criticized the tribunal for failing to
uphold internationally recognized due process standards. The
trials clearly failed to respect the right of the defendants to be
presumed innocent. The defendants were declared guilty
even by the tribunal’s title: “The People’s Revolutionary
Tribunal Held in Phnom Penh for the Trial of the Genocide
Crime of the Pol Pot-Ieng Sary Clique.” The judge presiding
over the trial, Keo Chenda, exposed his belief that the defendants were guilty by stating the day before the trial: “Trying
the Pol Pot-Ieng Sary clique for the crime of genocide will on
the one hand expose all the criminal acts that they have committed and mobilize the Kampuchean people more actively
to defend and build up the people’s power, and on the other
hand show the peoples of the whole world the true face of the
criminals who are posing as the representatives of the people
of Kampuchea.” In addition, Pol Pot and Ieng Sary were tried
without appearing in court, and there was no communication
between the absent defendants and their appointed attorneys.
Further, defense counsel was not permitted to cross-examine
witnesses. Finally, the defense devised an extremely weak line
of argument that mitigated the defendants’ role in the atrocities as accomplices to crimes ultimately conspired and executed by China.
Although Chinese support of the Khmer Rouge during
and after the 1975-79 period is well-known, the trial’s pointed references to a Chinese master plan of genocide added to
the impression that the trials were essentially political in
nature. The 1979 trials of Pol Pot and Ieng Sary followed
shortly after China’s ill-fated invasion of Vietnam in the
spring of 1979, which the PRC carried out to “teach Vietnam
a lesson” for invading Cambodia, a Chinese ally. After the
rapprochement between China and the United States and the
end of the Vietnam War, China and the Khmer Rouge
aligned against the Soviet Union and its allies in Vietnam
and Laos in a struggle for Indochina, and most international
observers perceived the trials as part of Moscow’s political
offensive in Southeast Asia.
32
Cold War Politics as Obstacles to Justice, 1979-89
In the decade following the 1979 trials, putting the
Khmer Rouge on trial became no less difficult. Cambodia
became one of the key battlegrounds of the “Second Cold
War,” pitting local, regional, and superpower rivals against
one another in what many have viewed as an elaborate proxy
war. Pursuit of Cold War ambitions by the great powers and
by regional powers in Indochina prevailed over their collective
interest in capturing and trying Khmer Rouge leaders responsible for the human rights abuses witnessed a few years before.
The presence of Soviet-supported Vietnamese troops in
Cambodia, the fall of the conservative Somoza regime in
Nicaragua, the Soviet invasion of Afghanistan, and other
events polarized world conflict and pushed erstwhile adversaries China and the United States together in strategic alignment against Moscow. Perceived Soviet aggression also
spurred the creation of the “Reagan Doctrine,” under which
the United States funded opposition groups in the Third
World to resist Soviet-backed Communist expansion. Like
the mujihadin in Afghanistan and the Contras in Nicaragua,
the Khmer Rouge forces became pawns in a conflict that
went far beyond the region.
China and the United States reasoned that fighting the
PRK regime and Vietnamese forces would help to foster
alliances with other Southeast Asian nations against Vietnam
and the Soviet bloc. Furthermore, sustained Khmer Rouge
resistance would sap Soviet resources and cause increased military and financial casualties for the Vietnamese. To support
anti-Vietnamese insurgents, China provided significant military aid to the disbanded Khmer Rouge forces. Reports suggest that China gave nearly $100 million annually in assistance to support the Khmer Rouge. The Thai government,
fearful of a perceived Vietnamese menace, also allied with the
United States and China in supporting rebel Cambodian
forces. Officials from the Thai army agreed to transport
Chinese military aid, food and medicine to Khmer Rouge
camps along the porous Thai-Cambodian border. Thai and
Chinese support, along with American financial assistance,
allowed the guerilla rebels to hold territory in western
Cambodia and avert military defeat.
China, the United States, and several Southeast Asian
countries also used diplomacy to support the Khmers Rouges
33
and other opponents of the People’s Republic of Kampuchea.
The Soviet Union and its allies were the only states that supported the PRK, and PRK efforts to gain official recognition
at the United Nations were fruitless. Instead, the world body
voted in 1982 to grant the Cambodian seat in the UN
General Assembly to the “Coalition Government of
Democratic Kampuchea” (CGDK), which included the
Khmers Rouges, right-wing forces under Son Sann, and royalists aligned with Prince Sihanouk. The CGDK was a
power-sharing deal that resulted from Southeast Asian,
Chinese, and American efforts to craft a political alternative
to the pro-Vietnamese government in Phnom Penh.
Sihanouk was appointed President of the CGDK, Son Sann
was appointed Prime Minister and Khmer Rouge leader
Khieu Samphan was Vice President. While Sihanouk was the
public face of the CGDK, Khmer Rouge forces represented
its real fighting force, and in the Cold War strategic environment, trying them for crimes of the 1970s was scarcely considered.
Thus, in spite of increased reports on the atrocities of
Democratic Kampuchea, the United Nations provided normative support for the Khmer Rouge resistance and even a
sense of political legitimacy for the toppled DK regime.
Rather than seeking justice for the heinous crimes committed, the international community focused on the protracted
military conflict and political wrangling that prevented prosecution of the Khmer Rouge and empowered their ultranationalist struggle. The CGDK, with the Khmers Rouges as
its most powerful member, thus occupied a seat at the UN
General Assembly until peace accords were signed in 1991.
Peace Talks and Continued
Barriers to Prosecution, 1989-91
In the late 1980s, conflict between the Khmer Rouge and
PRK forces persisted, and international pressure to put the
Khmer Rouge leadership on trial remained minimal.
Australian and American experts had established a
Cambodian Genocide Program by 1982 to study the abuses
of the Khmers Rouges. However, action at the official political level was negligible. China, some Southeast Asian states,
and to a lesser extent the United States considered the
Khmers Rouges to be essential players in the process of nego34
tiating a stable peace in Cambodia. Even as the end of the
Cold War approached in 1989—when Soviet financial assistance for Vietnamese forces fell dramatically and forced
Vietnam to withdraw troops from Cambodia—the United
Nations and major powers had other priorities than to try the
Khmers Rouges. Without sufficient military support or
financial aid, Cambodia under the PRK government grew
increasingly weak, and the prospect of rejuvenated civil war
was apparent. The Jakarta Informal Meetings and Paris Peace
Talks from 1988 to 1990, which sought to stabilize the country and surrounding region, included the Khmers Rouges as
necessary if abhorrent participants. Without their acceptance
of a peace plan, it appeared unlikely that Cambodia could
sustain a peaceful existence.
In 1990, the official name for Cambodia was changed
from the People’s Republic of Kampuchea to the State of
Cambodia, led by a young Prime Minister Hun Sen. The
country moved away from socialist economics and sought foreign investment, but without massive Soviet and Vietnamese
economic and military aid, life in Cambodia continued to be
difficult. The switch to a free-market economy exacerbated
latent economic inequities already present in Cambodian
society, and Khmer Rouge armed factions increasingly gained
territorial control.
In order to achieve peace in Cambodia, the international
community intervened again, initiating efforts in 1991 to
end the conflict between the warring parties. At China’s
insistence, a Khmer Rouge delegation served alongside three
other parties representing Cambodia in the peace talks. The
Khmer Rouge was a powerful force in the country, and the
international community once again recognized that their
support was pivotal for lasting peace. Given that the threat of
trials might have jeopardized the peace process, pursuing justice for the Khmer Rouge crimes was sidestepped in the
interest of maintaining a peaceful settlement in Cambodia.
After strong appeals by the Security Council, the four
Cambodian factions signed the peace plan on October 23,
1991. The Paris Peace accords produced a power sharing deal
that called for the four Cambodian factions to participate in
a newly-created Supreme National Council, a symbolic body
“in which, throughout the transition period, the independence, national sovereignty and unity of Cambodia would be
35
enshrined.” The plan also called for the United Nations to
administer the country until the elections took place and a
democratically selected government was installed.
The UNTAC Period, 1992-93
The 1991 Paris Agreements required the United Nations
to play the principal role in matters such as organizing and
conducting elections, coordinating refugee repatriation, disarming and demobilizing militants and supervising the basic
administration of the country. Rather than being given a mandate to initiate efforts to try Khmer Rouge members responsible for past human rights abuses, the UN peacekeeping force
created under the agreement—the UN Transitional Authority
in Cambodia (UNTAC)—was obligated to treat the Khmers
Rouges as equal participants in the transitional process.
Khmer Rouge non-compliance was immediate. After a
five-month long series of fruitless negotiations, the regime
officially ceased cooperation with the UNTAC mission. Once
cooperation had halted, the Khmers Rouges began a campaign
of attacks on Vietnamese Cambodians and UNTAC personnel.
The regime also boycotted the successful UN-sponsored elections of May 1993, in which 90 percent of the population participated. These defiant acts in the face of strong and unified
global support for an end to hostilities added to the pariah status of the Khmers Rouges in the eyes of the international
community. By successfully conducting national elections and
building a nascent civil society, UNTAC helped marginalize
the Khmer Rouge organization politically. Involvement in the
Khmer Rouge Tribunal can be viewed as the second half of the
UN’s mission to build democracy and ensure justice and the
rule of law in Cambodia.
More False Starts in Securing Justice, 1994-96
Following the elections, a coalition government was
formed by the royalist FUNCINPEC Party, with a majority
of the votes, and the Cambodian People’s Party (CPP). The
chief of FUNCINPEC, Prince Norodom Ranariddh, was
appointed as First Prime Minister, and Hun Sen became
Second Prime Minister. A new constitution was adopted five
months later in November 1993, and the country was renamed the Kingdom of Cambodia. In 1994, the Cambodian
National Assembly approved legislation outlawing the
36
Khmer Rouge organization.
In 1994, American policy also took an about-face. The
U.S. Congress adopted the Cambodian Genocide Justice Act,
which called for the United States to support efforts to hold
accountable members of the Khmer Rouge for the crimes
that they committed between 1975 and 1979. The Act established a special Office of Cambodian Genocide Investigation
within the State Department and appropriated money for
Yale University’s Cambodian Genocide Program to establish
a field office in Phnom Penh to collect potential evidence for
a tribunal. This field office became the Documentation
Center of Cambodia, which rapidly accumulated information
about Khmer Rouge atrocities through interviews, mapping
studies, and large bodies of documentation received from the
Cambodian government and private sources.
The momentum established for accountability in
Cambodia was stymied, however, in 1996 when King
Sihanouk issued a formal pardon to the former deputy prime
minister, Ieng Sary, for the death sentence handed down during the 1979 Tribunal. The pardon was granted because Ieng
Sary defected from the Khmers Rouges and claimed loyalty
to the new government. The precise wording of the amnesty
decree protects Ieng Sary only against the death sentence of
the in absentia trials and any possible prosecution for having
violated the 1994 legislation outlawing the Khmers Rouges.
However, it is still unclear whether Ieng Sary will be protected against future indictments for the crimes he allegedly
committed in the late 1970s.
The Khmer Rouge forces reached a breaking point in
1996. Both the CPP and FUNCINPEC launched successful
campaigns to attract Khmer Rouge political defections,
enticing cadres with promises of territorial control, good
positions within the government army and exemptions from
possible prosecution. These overtures were relatively effective
and disintegrated much of the remaining power base within
the Khmer Rouge organization.
Cambodia would witness another flawed attempt to hold
a member of the Khmer Rouge accountable for crimes in
June 1997, when Pol Pot was prosecuted in what many critics decried as another “sham trial.” Khmer Rouge forces
detained Pol Pot and three other men for their responsibility
for the murder of Khmer Rouge Defense Minister, Son Sen,
37
and his family. Their trial was held before a so-called
“People’s Tribunal” in Anlong Veng in the northwestern
Cambodian jungles. After a short outdoor hearing, the four
men were sentenced to life imprisonment. The court only
considered charges against Pol Pot related exclusively to his
involvement in the Son Sen case. It ruled out handing him
over to an international tribunal for crimes committed when
the Khmers Rouges were in power. Pol Pot served out his life
term under house arrest, guarded by his fellow former Khmer
Rouge comrades. He died, allegedly due to natural causes,
near the Thai-Cambodian border in April 1998.
The Years of Negotiation, 1997-2006
Enabled by the relative dissolution of the Khmer Rouge, the
late 1990s saw the beginning of the first real attempts to hold
individuals accountable for the Khmer Rouge atrocities. In
April 1997, the UN Commission on Human Rights opened
the door for talks between the UN and the Cambodian government. In its annual report on Cambodia, the Commission
requested that the UN provide assistance to the Cambodian
government in bringing to justice individuals responsible for
past human rights abuses. Two months later, co-Prime
Ministers Hun Sen and Prince Ranariddh issued a letter formally requesting United Nations help in ensuring criminal
accountability for Khmer Rouge atrocities.
Progress stalled in July 1997, however, when a complex series
of events that many analysts have described as a “coup” effectively marginalized Prince Ranariddh and left Hun Sen in
power as the country’s sole Prime Minister. The political turmoil of 1997 raised concerns at the United Nations, which
pursued subsequent negotiations with extreme caution. After
a significant delay, the UN Secretary-General appointed a
group of experts to assess the feasibility of bringing former
Khmer Rouge leaders to justice and to recommend the best
legal process to achieve that goal. The group—which consisted of Australian Ninian Stephen, Mauritian Rajsoomer
Lallah, and American Steven Ratner—was given a three-fold
mandate. It was to evaluate the evidence and determine the
nature of the crimes committed by the Khmer Rouge
between the years 1975-1979; assess the possibility of bringing the leaders to trial; and explore the various international
and national options for putting the Khmers Rouges on trial.
38
In February of the following year, the team issued its
report, agreeing that a prima facie case existed to suggest that
serious crimes of both Cambodian and international human
rights law were committed. The report also noted that the
corrupt nature of the Cambodian court system would render
the possibility of domestic trials unfeasible. Of the three possible legal options—international, mixed, or domestic tribunals—the report concluded that the best legal option was
to establish an ad hoc international tribunal with the jurisdiction to try crimes against humanity and genocide committed
between April 17, 1975 and January 7, 1979.
Prime Minister Hun Sen, who was in control of the government following the events of 1997, immediately rejected
the team’s findings and claimed that prosecuting the Khmers
Rouges would risk sending the country back to civil war. In
a letter sent to the Secretary-General in March 1999, he cautioned, “if improperly and heedlessly conducted, the trials of
Khmer Rouge leaders would panic other former Khmer
Rouge officers and rank and file, who have already surrendered, into turning back to the jungle and renewing the
guerrilla war in Cambodia.”
Two major developments underlie this change in his position. The first came in December 1998, when Khieu
Samphan and Nuon Chea, two leading Khmer Rouge figures,
announced their defections from the CPK. Hun Sen interpreted these defections as a critical step towards reconciliation for the Khmer Rouge crimes, stating that Cambodians
should “dig a hole and bury the past and look to the future.”
The second came in March 1999, when Ta Mok, another senior leader of the Khmer Rouge, was arrested along the ThaiCambodian border and brought to Phnom Penh.
Breaking the Impasse
With the surrender of Khieu Samphan and Nuon Chea
and the arrest of Ta Mok, also known as “the Butcher,” Hun
Sen appears to have no longer considered the Khmer Rouge a
major threat to Cambodian security. Critics of Hun Sen and
the CPP argued that for the Prime Minister, the tribunal
negotiations were primarily a means to defeat the remaining
Khmer Rouge leadership and to demonstrate his political
credentials as the Cambodian leader who finally vanquished
the former DK regime. Once those goals were achieved, his
39
critics argued, Hun Sen became less interested in pursuing
further negotiations with the United Nations.
The Cambodian government became increasingly
assertive in the months following the arrest of Ta Mok. Hun
Sen called for an end to any discussion about an international tribunal, insisting that a trial for Ta Mok would be conducted in Cambodian courts. Any outside legal experts
would have to be invited by the court, but they would be relegated to observer status. The Cambodian government also
stressed that any international intervention in its domestic
affairs would be a violation of national sovereignty. However,
the problem with holding trials in a Cambodian court of law,
as noted in the UN legal team’s report, was that the judicial
system remained severely flawed in numerous respects. Most
international observers argued that Cambodian courts could
not conduct a trial of Ta Mok in accordance with worldwide
standards of justice without significant help from the international community.
The impasse between the United Nations and Cambodian
government ended at the UNHCHR session in 1999. With
broad international support, the Commission approved a resolution encouraging the Cambodian government to continue
its cooperation with the international community to address
the serious human rights abuses in Democratic Kampuchea.
A number of governments also supported Cambodian
involvement in the legal process, with the caveat that proper
safeguards were necessary to ensure the security, integrity,
and independence of the tribunal.
In a step towards compromise, Hun Sen submitted a letter
to the Secretary-General explaining that trials of Ta Mok and
others would still be held in domestic courts, but his position
vis-à-vis international involvement had changed. To guarantee
that any trials met international legal standards, foreign legal
experts would be invited to participate actively in the proceedings. The option of a mixed tribunal was further honed in subsequent meetings between Hun Sen and U.S. Senator John
Kerry, when the idea was proposed that the tribunal seat both
Cambodian and foreign judges. Thus, from the preliminary
stages, the negotiations began to reflect an attempt to reconcile
competing Cambodian and international interests.
Many details would need to be addressed in subsequent
negotiations. Would the applicable law be domestic, interna40
tional or both? What procedures would be put in place to
ensure that international standards of justices, fairness and
due process were met? How would the trial be organized and
funded? In order to address these outstanding issues, both the
United Nations and Cambodian government appointed legal
experts in local and international law to collaborate on drafting the enabling legislation. The UN side was headed by the
organization’s legal department, the Office of Legal Affairs,
and Hun Sen created the Khmer Rouge Tribunal Task Force
to lead negotiations for the Cambodian government. The
talks between the expert groups began in late August 1999.
They ultimately led to the October 2004 adoption by the
Cambodian National Assembly of the UN-RGC Agreement
and amended ECCC Law.
Tribunal Negotiations - Defining the Stakes
From the outset, the two sides had very divergent views
of how the tribunal would be conceived. The differences were
apparent with nearly every aspect of the tribunal. The
Cambodian task force proposed that the trials take place
within the existing domestic court system. The United
Nations, however, envisioned that a special tribunal be established. Additionally, both the Cambodian government and
the United Nations argued that judges from their respective
“sides” should be in the majority.
One issue that would be long debated concerned the
appointment process for judges and prosecutors. The
Cambodian task force proposed that the Supreme Council of
Magistracy, the body in Cambodia responsible for the judicial
and prosecutorial appointments, would appoint all
Cambodian judges, and the Secretary-General would nominate foreign judges after consultation with the Cambodian
government. The UN’s Office of Legal Affairs, however, held
the view that the Supreme Council of Magistracy lacked the
necessary independence. The Council was known to have
been subject to political intervention at the highest levels,
and the United Nations considered it essential that any risk
of direct or indirect political pressure in the appointment
process be eliminated. In addition, legal experts were concerned that having different appointment mechanisms would
create an uneasy distinction between the Cambodian and
international judges. One would have the support of the
41
international community, but not the other. UN legal staff
thus suggested that the most appropriate way to guarantee
impartiality and independence would be to require all judicial and prosecutorial endorsements to pass through an international appointment mechanism.
Another obstacle related to personal jurisdiction. Both
sides agreed that it was not realistic for the court to try persons from all ranks of the Khmer Rouge regime, but should
focus instead on a limited number of cadres. UN officials
argued that the criminal proceedings should include both
senior leaders of the Khmer Rouge and those most responsible for the atrocities. A suggested number put forward in the
1999 expert report was between 20 and 30, a figure that Hun
Sen adamantly rejected. His view was that the prosecutions
would be highly selective, limited to only four or five senior
Khmer Rouge leaders. Hun Sen asserted that the inclusion of
more than a limited number of accused would guarantee violent reactions from the remaining Khmer Rouge forces; political stability, national security and economic development
were now apparently the government's first priorities. Critics
have also claimed that Hun Sen limited the number of potential accused defendants out of self-interest. Until defecting to
Vietnam in 1977, Hun Sen served as a military cadre for the
Khmer Rouge’s armed forces. It is not inconceivable that a
wider prosecutorial net could catch former cadres of his level.
Moreover, Hun Sen faced pressure by long-standing CPP
members who once joined the ranks of the Khmer Rouge
regime.
The issue of the court's personal jurisdiction also ignited
debate on a related matter: the Ieng Sary pardon. The UN
position was clear; the possibility of any amnesties or pardons
in cases of crimes against humanity was unacceptable. The
Cambodian government, however, was reluctant to formally
deny the King one of his constitutional rights. Hun Sen personally rejected the UN position, holding to his long-standing policy of exempting from prosecution Khmer Rouge
defectors who had declared themselves loyal to his party. U.S.
representatives interceded to resolve some of these differences. U.S. Ambassador for War Crimes David Scheffer and
the American Ambassador in Phnom Penh, Kent
Wiedemann, led this effort in coordination with the
Cambodian government. They began by approaching the
42
issue of the structure of the court. Discussions centered on
whether the trial would be separate or integrated into
Cambodia’s existing judicial system. What they devised was
a compromise of the two sides, special chambers would be
created within Cambodia’s Municipal Court, Appeals Court,
and Supreme Court.
US representatives also made attempts to break the
impasse between the UN Office of Legal Affairs and the
Cambodian government on differences concerning which
“side” would represent the majority of judges. Ambassador
Wiedemann proposed the idea of the “super-majority” vote,
whereby Cambodian judges would be in the majority, but at
least one of the international judges would have to support a
decision in order for it to be valid. This, he suggested, would
ensure that the international judges had a voice in the
process. To further the international community’s influence
in the proceedings, it was also proposed that the court would
have co-Prosecutors and co-Investigating Judges, positions
that exist within the Cambodian legal system.
A draft of the enabling law was finalized and submitted
to the Cambodian National Assembly in January 2000, and a
copy was forwarded to the UN Secretary-General. Certain
issues resurfaced. References to a majority of Cambodian
judges remained. The issue of Ieng Sary’s pardon was not
resolved, and new problems emerged. The government proposed that foreign governments and Cambodian authorities
could recruit among individual foreign jurists. There was also
some ambiguity regarding whether or not the two prosecutors would have to sign indictments together. If so, one side
could effectively veto controversial indictments.
UN Secretary-General Kofi Annan addressed these concerns in a letter to Hun Sen in February 2000, noting four
problems that required immediate attention. The first was
that guarantees were established to ensure that those indicted would be arrested. Second, there would be no amnesties or
pardons. Third, the prosecutor must be foreign in order to
guarantee impartiality. And finally, international judges
must be in the majority and must be appointed by the
Secretary-General.
Although the legal teams attempted to work out the differences over several months, U.S. Senator John Kerry, in consultation with the UN Secretariat, proposed an unconven43
tional, but ultimately successful, approach to the issue of
resolving disputes between prosecutors and among investigating judges. He suggested the creation of a separate fivejudge panel that would apply the super-majority formula to
make judgments on the validity of an indictment. Many
observers hailed this as a major compromise by the
Cambodian government.
With this momentum, the UN legal team returned to
Phnom Penh. However, the tone had changed. Legal Counsel
Hans Corell now described the tribunal as “a Cambodian
court with the participation of international judges and prosecutors.” The point was made; the United Nations now
viewed the process as a Cambodian one with considerable
outside assistance. The legal team presented the Cambodian
government with draft articles of cooperation that would
govern the relationship between the two with respect to the
tribunal. The United Nations specified that any modifications made to the enabling law must not differ substantially
from the stipulations defined in the articles. In particular, the
articles eliminated provisions that permitted foreign and
Cambodian governments to appoint international jurists.
Likewise, the articles specified that UN officials would
appoint the international prosecutor and that two new positions would be created: a deputy international prosecutor and
a deputy director of administration. As with the international co-prosecutor, the United Nations would select candidates
for the new posts.
A series of long and protracted discussions on the draft
articles of cooperation had little effect on the Cambodian
position. The Cambodian National Assembly passed the
ECCC Law in January 2001, and after references to the death
penalty were removed at the request of the Constitutional
Council, the King approved the legislation in August 2001.
The law, however, lacked many of the amendments the
United Nations outlined in the articles of cooperation. For
international assistance with the tribunal, UN legal experts
insisted that the articles had to be signed, but the Cambodian
government argued that any such agreement would violate
its national sovereignty.
The perceived intransigence of the Cambodian position
led to a UN announcement in February 2002 that it would
withdraw from negotiations. Many leading human rights
44
organizations supported the decision, arguing that the tribunal’s fundamental political and technical flaws would preclude it from meeting international standards of justice.
However, many others condemned the move, including the
Secretary-General’s Special Representative for Human Rights
in Cambodia, Peter Leuprecht, and the governments of the
United States, Japan, France, India, Russia, and some
Southeast Asian nations. Critics claimed that the move needlessly prevented international legal experts from attaining
accountability for ageing leaders of the former Khmer Rouge.
In effect, they contended, ending negotiations was tantamount to promoting impunity.
United Nations Re-engagement
In a resolution sponsored by Japan and France in
December 2002, the UN General Assembly authorized the
Secretary-General to renew prior negotiations on the establishment of the tribunal. The resolution also pressed the legal
experts to return to Phnom Penh to conclude negotiations on
the terms demanded by Cambodia. The UN member states
now welcomed the 2001 legislation, which had been originally considered flawed, and urged the UN Office of Legal Affairs
to quickly resolve any outstanding issues and come to a final
agreement on the structure and operation of the tribunal.
The two legal teams met a total of six times during
January 2003 but failed to make progress. The United
Nations repeated previous demands for a majority of international judges and an independent prosecutor nominated by
UN officials. The Cambodian government insisted on strict
adherence to the provisions of the 2001 legislation. Under
strong public appeals by interested member states—including Australia, Japan, the United States, France, India and the
Philippines—to reach a compromise, the legal team returned
for a final round of talks with the Cambodian task force. On
June 6, 2003, the United Nations and Cambodian government signed a draft agreement establishing a tribunal that
would operate along the lines of the 2001 ECCC Law, but
with modifications such as excluding amnesties or pardons for
crimes covered by the court and simplifying the court structure from three chambers to two. Amendments to the 2001
ECCC Law were subsequently drafted based on provisions
agreed by the United Nations and Cambodian government.
45
Following national elections in 2003, Cambodia faced an
11-month political deadlock that continued until July 2004.
Cambodian Prime Minister Hun Sen emphasized that once
the impasse ended, adoption of the UN-RGC agreement and
the amendments to the 2001 ECCC Law would be a foremost
government priority. The Prime Minister acted on his word,
presenting both legal instruments to the Cambodian
National Assembly, which adopted them. The Assembly
passed them in October, less than two months after the new
government’s formation. In addition, UN and RGC negotiators agreed relatively swiftly on the amount of money to be
provided by each party to fund the tribunal over an estimated three-year period. The United Nations would provide
US$43 million, and Cambodia would contribute US$13 million. By late 2004, the Cambodian government thus
appeared to be solidly committed to pursuing justice for the
heinous crimes of the DK era.
UN officials confirmed in April 2005 that they had collected sufficient funds from contributing countries to finance
the international portion of tribunal-related expenses. The
United Nations also developed a list of candidates for the
posts of international prosecutors and judges, and the
Cambodian government appointed UN nominee Michelle
Lee as Deputy Director of the KRT Office of Administration.
The Cambodian government’s commitment to the formation
of the tribunal also progressed. RGC officials said that the
country could not afford to contribute $13 million and has
called upon foreign powers to pay most of its agreed expenses.
However, the Cambodian government has organized a site for
the trials and has made real progress in personnel matters. It
appointed Sean Visoth as Director of the tribunal’s Office of
Administration in November 2005, released a list of judicial
candidates in December, and approved 17 Cambodian and 13
international officials to serve at the ECCC in May 2006. The
tribunal now has the physical facility, the personnel, and
seemingly adequate financial resources to prepare for trials.
The Results of the Negotiations
Several years of negotiation led the United Nations and
the Cambodian government to compromise on most of the
important substantive and procedural questions involved in
creating a Khmer Rouge Tribunal. Although both sides made
46
significant concessions, the results of negotiations generally
accord more closely with the preferences and interests of the
Cambodian government. UN and RGC officials appear to
have reached mutually agreeable legal definitions of the
crimes to be tried, as well as general agreement on the rules of
evidence and a number of other important matters. However,
on the most politically contentious issues surrounding the
court’s jurisdiction, structure, and personnel, the Cambodian
government has gotten more of what it wanted.
Jurisdictional Compromise
As noted above, the Cambodian government placed great
priority on limiting the tribunal’s jurisdiction to a small
number of the most high-ranking or otherwise influential
Khmer Rouge defendants. The result of negotiations reflected that emphasis, as the [ECCC Law] permits the
Extraordinary Chambers to try only “senior leaders” of the
Khmer Rouge regime and others who were “most responsible
for serious violations of Cambodian and international law”
between April 17, 1975 and 6 January 6, 1979. The absence
of a concrete number has not prevented the Cambodian negotiators from conditioning observers to expect a relatively
small universe of defendants, perhaps as few as five or six.
This falls considerably short of the 1998 UN legal experts’
recommendation of 20 to 30 and accords with the
Cambodian government’s interest in managing the political
effects of the trials. By choosing a small number of defendants
carefully, the Cambodian government can diminish the
potentially destabilizing ramifications of a tribunal. Critics of
the CPP-led government also argue that a small universe of
suspects will reduce the risk that Hun Sen or other highranking officials will be embarrassed by any past association
with the Khmers Rouges.
The substantive scope of the tribunal’s jurisdiction has
been somewhat less controversial and has attracted much less
criticism from observers of the process. Under the [ECCC
Law,] the Extraordinary Chambers can try suspects for the
domestic crimes of homicide, torture and religious persecution under the 1956 Cambodian Penal Code, as well as certain international crimes, including genocide, crimes against
humanity, grave breaches of the 1949 Geneva Conventions,
the 1954 Hague Conventions for Protections of Cultural
47
Property in the Event of Armed Conflict, and the Vienna
Conventions of 1961 on Diplomatic Relations.
The Balance of Influence on the Tribunal
The results of negotiation also favor the Cambodian government’s interests by placing domestic judges in the majority on the mixed tribunal. There will be two chambers within the existing Cambodian court system: a trial chamber and
an appeals chamber. The Trial Chamber will seat three
Cambodian judges and two international judges, and the
Appeals Chamber will seat four Cambodian judges and three
international judges. The Supreme Council of Magistracy
will appoint all Cambodian judges, as well as the international judges nominated by the UN Secretary-General. Both
chambers will require a super-majority decision, whereby
there must be an affirmative vote of at least four judges at the
trial chamber level and an affirmative vote of at least five
judges at the appeals chamber level. The super-majority provision represents a considerable safeguard for advocates of
stronger international control of the proceedings, but it also
ensures that a coalition of international judges and a single
“swing” Cambodian judge will be unable to establish a verdict. The power of the Cambodian government to appoint
international nominees adds to its ability to wield influence
in personnel matters.
The Cambodian government also secured relative control
over other units within the Extraordinary Chambers. The PreTrial Chamber of the tribunal will be composed of three
Cambodian judges appointed by the Supreme Council of the
Magistracy, with one serving as President, and two international judges appointed by the Supreme Council of the
Magistracy upon nomination by the UN Secretary-General.
The pre-trial chamber is tasked with resolving any disputes
that arise between the co-Prosecutors or the co-Investigating
Judges. The Director of the Office of Administration will be a
Cambodian appointed by the government, and he or she will
be responsible for the overall management of the Office. The
Office of Administration will also have a Deputy Director
appointed by the UN Secretary-General. The Deputy
Director will be responsible for the recruitment of all international staff and all administration of the international components of the Khmer Rouge Tribunal.
48
Prosecutorial duties will be more evenly split in the Office
of the Prosecutor, comprising two co-Prosecutors, one international and the other Cambodian. The UN Secretary-General
has nominated two individuals, and the Supreme Council of
the Magistracy has appointed one to serve as an international
co-Investigating Judge, and one as a reserve international coInvestigating Judge. The Cambodian government has also
appointed the domestic co-Prosecutor. The co-Prosecutors
will assist in investigations and prepare indictments against
those suspected of violating crimes specified in the enabling
law. One Cambodian and one international Investigating
Judge will also serve the tribunal. The UN Secretary-General
has nominated two individuals for the position of international co-Prosecutor. The Cambodian Supreme Council of the
Magistracy has appointed one of them to serve as an international co-Investigating Judge and another who will serve as a
reserve international co-Investigating Judge.
In the event that either the co-Prosecutors or the coInvestigating Judges are unable to agree whether to proceed
with an investigation or prosecution, the Pre-trial Chamber
can settle differences with an affirmative vote requiring a
super-majority of at least four judges. The pre-trial decision
cannot be appealed. The investigation or prosecution will
proceed if there is no majority on a case. More details of the
court’s composition and rules of procedure are provided in
Chapter 3.
Understanding the Results of the Negotiations
Although the United Nations will exert a major influence
on the tribunal proceedings, the structure of the tribunal
favors the Cambodian government. In the face of steadfast
demands by the United Nations for a tribunal that would
apply high international standards of accountability and fair
trial procedures, the Cambodian government maintained its
insistence on avoiding international dominance over the
court. According to his critics, Hun Sen initially approached
the United Nations for assistance in addressing past human
rights abuses only as a strategic attempt to pressure remnant
Khmer Rouge forces to dismantle and join the ranks of his
Cambodian People’s Party. Once that goal was achieved, the
Prime Minister acted duplicitously to control the negotiation
process. Stall-tactics, ambiguity and persuasion have success49
fully allowed Cambodian interests to predominate with
respect to virtually every aspect of the tribunal’s proceedings.
Critiques of the balance of Cambodian and UN influence
in the tribunal proceedings are inextricably related to domestic and international perceptions of Hun Sen and the CPP-led
government in Phnom Penh. Most Cambodians and foreign
observers strongly support putting at least some Khmer
Rouge leaders on trial, but opponents of the CPP are wary of
giving the Cambodian government too much control or too
much opportunity for political gain. Ironically, international
skepticism of the Cambodian government and ambivalence
about the mixed tribunal concept may have diminished the
United Nations’ negotiating leverage and contributed to an
outcome that many Western governments consider sub-optimal. Scandinavian governments have been particularly critical of the tribunal’s predominantly domestic character, and
most Western European governments abstained on the UN
General Assembly vote to approve the draft UN-RGC
Agreement in late 2002. France and Russia expressed skepticism at the UN Security Council as well. By showing their
mixed feelings about the process, the major powers diminished momentum toward the creation of the tribunal.
In the United States, although public support for the tribunal has been strong and consistent, a number of influential
policymakers have opposed the process, arguing that Hun Sen
and the CPP represent a more appropriate subject of opprobrium than “a handful of geriatric Khmers Rouges.” Other foreign policy priorities have also distracted high-ranking U.S.
officials to a degree, and the human rights agenda has been
less prominent under the George W. Bush administration
than it had been under the Clinton administration. When the
United States has intervened, some human rights activists and
non-governmental organizations assert that “unilateral” U.S.
engagement undermined the efforts of the UN legal team by
giving the impression that the United Nations was not the
sole negotiating voice for the influential Western powers.
Regional political forces have also diminished the leverage
of UN officials to establish the Extraordinary Chambers on
their terms. China has been particularly wary of the Khmer
Rouge Tribunal, blocking the involvement of the UN
Security Council on a number of occasions. The Chinese government has stated publicly that the Khmer Rouge issue is an
50
internal matter for Cambodia, suggesting that it perceives the
tribunal as a form of Western interference in local politics.
Critics argue that China has baser motives, fearing that trials
would draw unwanted attention to Chinese support for the
DK regime, the parallels between Khmer Rouge ideology and
Maoism, and the state of China’s own human rights practices.
Some of Cambodia’s Southeast Asian neighbors share the view
that trials are essentially a domestic Cambodian issue and prefer to prioritize current economic and security relations with
Phnom Penh. This helps to explain why Vietnam—long a bitter enemy of the Khmers Rouges and a friend of the CPP—
has been very quiet on the matter.
Conclusion: Responses from Critics and Supporters
The international political forces described above prevented the United Nations or any combination of great powers from exerting enough influence to secure solid international control over the Khmer Rouge Tribunal proceedings.
The result is a mixed tribunal that many human rights advocates view as a defeat for international standards of justice,
fairness and due process. For example, a Human Rights
Watch briefing paper has called the tribunal “deeply flawed,”
insisting that the potential was too great for Cambodian government officials to interfere in the tribunal’s work. In addition, the tribunal lacks a clear delineation of rules of procedure among the various applicable procedural laws, and the
draft contains no provisions for awarding reparations to victims or for capacity-building measures.
Throughout the negotiations, the United Nations was resolute in maintaining that any tribunal established to try
Khmer Rouge leaders must conform to the highest standards
of international law. Nonetheless, Cambodian officials managed to secure their primary objectives at nearly every turn.
According to some observers, concessions by the international
community have resulted in an inadequate and compromised
tribunal. Expressing his dissatisfaction with the form that the
tribunal has taken, UN Secretary-General Kofi Annan said the
following in a 2003 report to the General Assembly:
[T]here are continued problems related to the rule of
law and the functioning of the judiciary in
Cambodia resulting from interference by the execu51
tive with independence of the judiciary, I would very
much have preferred that the draft agreement provide for both of the Extraordinary Chambers to be
composed of a majority of international judges...
Doubts might still remain as to whether the provisions of the draft agreement relating to the structure
and organization of the Extraordinary Chambers
would fully ensure their credibility, given the precarious state of the judiciary in Cambodia...any
deviation by the government for its obligations could
lead to the United Nations withdrawing it cooperation and assistance from the process.
Critics charge that unless the tribunal undergoes fundamental structural and technical changes, the court will essentially rest squarely “under the thumb” of Prime Minister Hun
Sen. They contend that the tribunal will be biased and that
its decisions will be held captive by the will of current political leaders. Most analysts believe that the executive branch
continues to exercise strong control over the Cambodian judiciary. Critics of the CPP-led government argue that by
appointing a majority of the adjudicators in both the trial
and appeals chambers, the CPP will possess considerable
opportunity to influence the trial politically. The same concern applies to the Cambodian co-Prosecutors and coInvestigating Judges. Mike Jendrzejczyk, director of Human
Rights Watch’s Asia division, has argued that “with
Cambodia’s judiciary at the center of the tribunal, the agreement ensures that it will be politics and not law that dominate the tribunal’s work.”
Cambodian civil society and political opposition parties
have routinely made strong public statements throughout the
negotiations affirming their support for justice to be done in
relation to the crimes of the DK period. However, as international involvement has been relegated to a lesser role in the
tribunal proceedings than many observers originally envisioned, these parties are now essentially obligated to support
a process that many privately view as a flawed product of
power politics. Indeed, many critics believe that Hun Sen’s
attempt to establish the tribunal has been driven by his desire
to protect his political party’s leadership and to be championed as the one who defeated the Khmer Rouge.
52
Advocates of the tribunal recognize its deficiencies but
contend that eliminating Cambodian participation in the tribunal would deny the country a meaningful role in its own reconciliation process. Supporters of the tribunal also maintain
that active participation by civil society organizations and the
public can reduce the likelihood of corruption, improve the
competence of the local tribunal staff, and provide assurances
that the proceedings will conform to international legal standards. Ultimately, failure to proceed with trials will ensure that
those most responsible for serious violations of international
humanitarian law will live the rest of their lives without ever
being held accountable for their actions. That would indeed be
a tragedy for international law, for the reputation of the United
Nations and for Cambodia’s ongoing efforts to close the Khmer
Rouge chapter on its tragedy-laden past.
53
Pol Pot with a Vietnamese delegation led by Le Youn, July 1975
54
2
The Crimes to be Judged
by the Extraordinary Chambers
Aubrey Ardema
Adjudicating the alleged crimes of the Khmers Rouges is
a formidable task from legal, political, and practical standpoints. The sheer number of alleged abuses in Democratic
Kampuchea (DK) and atrocities in surrounding periods make
it impossible to adjudicate every alleged offense committed
by Khmer Rouge officials and cadres. This chapter begins by
describing the jurisdiction of the Khmer Rouge Tribunal,
showing how the authority of the Extraordinary Chambers
(ECCC) has been limited to focus the accountability process
on a particularly critical subset of crimes by a key group of
defendants in the most terrifying of historical periods.
This chapter then delves more deeply into the tribunal’s
“subject-matter jurisdiction,” discussing the specific crimes
that it may adjudicate. The amended Law on the
Establishment of the Extraordinary Chambers (the “ECCC
Law”) allows the tribunal to try former Khmer Rouge officials for eight specific domestic and international crimes.
These are genocide, war crimes, crimes against humanity, torture, religious persecution, homicide, destruction of cultural
property, and offenses against diplomatically protected persons. This chapter elaborates upon the “elements” of these
crimes—which are the acts and mental states that the prosecution must prove to secure convictions—to highlight some
of the most important legal issues facing the tribunal. How
the ECCC judges interpret the law and define each crime will
clearly affect the strength of the cases that the prosecutors
and defense attorneys can present.
Finally, this chapter turns to the issue of legal defenses,
describing the types of claims that Khmer Rouge defendants
will be empowered to make in attempting to establish their
innocence. The availability of these defenses is important in
guaranteeing the fairness of the trials and preventing the
55
imposition of injustice that so many innocent Cambodians
suffered under the Khmer Rouge regime.
Jurisdictional Issues
Although the Khmer Rouge Tribunal represents one of
the most ambitious accountability processes in Southeast
Asian history, its jurisdiction will necessarily be limited to a
fraction of the abuses that have plagued the modern
Cambodian experience. Throughout the latter stages of the
Cold War, Cambodia was a cauldron of political and military
conflict. Between 1970 and 1975, as the Vietnam War
spilled across Cambodian borders, an ugly civil war raged
between an authoritarian conservative regime and leftist
Khmer Rouge guerillas. Foreign powers became embroiled,
and alleged human rights abuses were committed on all sides.
The terror of Democratic Kampuchea followed, as the
Khmers Rouges vanquished the right-wing Lon Nol regime
and began a wave of political purges and forced resettlement.
Their radical plans to eradicate foreign influence in Cambodia
and develop a self-sufficient agrarian economy became the
basis for some of the greatest suffering of the 20th century.
Even after the overthrow of the Khmer Rouge regime, however, Cambodia did not enjoy peace. The decade following 1979
saw a resurgence of international interest in the country, as the
new People’s Republic of Kampuchea and its allies fought
against remaining Khmer Rouge rebels in the jungle. Again,
human rights abuses were alleged by both sides. Adjudicating
all of the possible offenses in modern Cambodian history
would be a formidable task indeed, and few have seen such an
expansive process as a practical possibility.
Temporal Jurisdiction
Consequently, the Khmer Rouge Tribunal will have a
limited mandate within the ordinary Cambodian criminal
justice system. The first jurisdictional question relates to the
time period in which crimes must have occurred. This is
called the tribunal’s temporal jurisdiction. Under Articles 1-8 of
the ECCC Law, the prospective Khmer Rouge Tribunal will
only be able to hear cases involving crimes that occurred
between April 17, 1975 and January 6, 1979. In order to
bring a case before the Extraordinary Chambers, a prosecutor
must demonstrate that an alleged crime occurred within that
56
time frame. Although the Khmers Rouges allegedly committed criminal offenses before and after that period, the added
political complexity of trying crimes committed during the
1970s and 1980s in Indochina made this temporal limitation
a political necessity.
Personal Jurisdiction
The second major jurisdictional matter—a very contentious issue from a political standpoint—has been the tribunal’s personal jurisdiction, which determines the individuals
whom it may try for alleged criminal offenses. Prosecutors
will not have power to try every person alleged to have committed abuses during the DK period. Instead, under Articles
1 and 2 of the ECCC Law, the Extraordinary Chambers will
only be able to hear cases against “senior leaders of
Democratic Kampuchea” and “those who were most responsible” for the alleged crimes. Mid-level and lower-level officials are unlikely to be investigated and charged.
As discussed in Chapter 1, the issue of the Khmer Rouge
Tribunal’s personal jurisdiction has been very controversial.
The Cambodian government has argued that bringing a large
number of defendants before the tribunal could lead to political embarrassment, destabilization, or even renewed civil
hostilities in Cambodia. Analysts who agree with this position assert that the prosecution of officials below the most
senior levels should be handled by ordinary Cambodian
courts. However, because Cambodia has an underdeveloped
judicial system and few resources, domestic prosecution of
mid-level and lower-level officials may not occur. Critics of
the Cambodian government’s position consequently advocate
trying as large a universe of defendants as practicable before
the Khmer Rouge Tribunal.
Subject-Matter Jurisdiction
Finally, the tribunal’s subject-matter jurisdiction determines
what types of crimes it may adjudicate. This important
restriction limits the Extraordinary Chambers to hearing
cases that relate to a number of specific alleged crimes,
despite the possibility of many other possible charges. Once
again, the creation of the tribunal was subject to considerations of practicability: trying more than several crimes would
57
expose the proceedings to added degrees of complexity and
consume valuable time and resources. The drafters of the
UN-RGC Agreement and ECCC Law made the same decision that the architects of other international and mixed tribunals have made—to focus on the most serious offenses.
As discussed in greater detail below, the Extraordinary
Chambers will only be able to hear cases relating to eight
alleged crimes committed by certain people during a specific
time frame. The ECCC Law empowers the tribunal to hear
cases pertaining to five international offenses and their related charges—genocide, crimes against humanity, war crimes,
destruction of cultural property, and crimes against diplomatically protected persons. Article 3 of the ECCC Law also
allows the tribunal to hear cases involving alleged domestic
crimes of homicide, torture, and religious persecution under
the 1956 Cambodian Penal Code.
The Nullum Crimen Principle
Before examining the crimes enumerated under the
ECCC Law, it is essential to understand the doctrine of nullum crimen sine lege, a Latin term meaning “no crime without
law.” The principle holds that an individual cannot be convicted of a crime that did not exist when he or she committed the act in question. The vast majority of the world’s legal
systems follow this reasoning to safeguard individual rights.
The nullum crimen principle will be extremely important for
the Khmer Rouge Tribunal, because it means that DK officials can only be found guilty of criminal offenses that existed between 1975 and 1979. The principle also implies that
the Extraordinary Chambers must define crimes like genocide, war crimes, and crimes against humanity according to
the state of international law in the late 1970s.
Direct and Superior Responsibility
Before discussing the crimes set forth in the ECCC Law,
it is also important to note that Khmer Rouge defendants
may be held liable for their alleged criminal offenses via
either direct or superior responsibility. Under Article 29 of
the ECCC Law, direct responsibility attaches whenever the
defendant “planned, instigated, ordered, or aided and abetted, or committed” the crime in question. Thus, defendants
58
need not have committed the ultimate criminal act themselves to be liable. The statutes creating the International
Criminal Court (ICC) and International Criminal Tribunals
for the former Yugoslavia and Rwanda (ICTY and ICTR)
contain similar provisions. This principle is extremely important, because it is widely believed that despite the massive
abuses of the DK regime, senior Khmer Rouge officials usually did not commit physical atrocities themselves. The
debate between prosecutors and defense counsel is more likely to surround whether Khmer Rouge defendants ordered,
planned, or aided and abetted the crimes of their subordinates.
Superior liability will attach if a Khmer Rouge defendant
is found guilty of criminal inaction or omissions. Article 29
of the ECCC Law states that an accused individual can be
held responsible for crimes by his or her subordinates if the
defendant “had effective command and control or authority
and control over the subordinate... knew or had reason to
know that the subordinate was about to commit such acts or
had done so, and... failed to take the necessary and reasonable
measures to prevent such acts or punish the perpetrators.”
The ICTY, ICTR, and ICC have all adopted the same principle. However, the status of that doctrine under international
law was uncertain in 1975. Although the Nuremberg tribunal established superior responsibility for crimes committed
during international armed conflict, whether it applied to
crimes outside of that context was unclear. If the Khmer
Rouge Tribunal determines that the law did not permit convictions on the basis of superior responsibility in 1975, the
prosecution will have more challenging cases to prove.
The line between direct and superior responsibility often
blurs, as orders and plans melt into complicity and conscious
omissions. In a large and complex organization like the
Khmer Rouge regime, functionaries several steps removed
from the Party leadership may have carried out prohibited
acts pursuant to orders and vague plans passed to them
through several layers of bureaucracy. Whether DK leaders
ordered crimes in the field, or whether they merely knew
about offenses and failed to act, may be difficult for the
Extraordinary Chambers to ascertain. However, direct liability and superior responsibility normally are not mutually
exclusive, and prosecutors will probably be able to charge
Khmer Rouge defendants on both counts.
59
Elements of the crimes to be tried
Every crime, international and domestic, has elements.
Elements are the essential parts of a crime, each of which
must be proven in order to secure a conviction. Almost all
crimes require the prosecution to prove that the defendant
committed a prohibited physical act. This is the crime’s
“physical element,” which generally involves killing, injuring, or otherwise abusing a victim. To convict a defendant,
the prosecution must also prove that the defendant committed the prohibited act with criminal intent. This is the
crime’s “mental element” and usually involves a desire to
cause harm to a particular group or individual or a willingness to tolerate such abuses by one’s subordinates. For certain
international crimes, prosecutors must also satisfy additional
(usually contextual) elements that raise crimes from the
domestic to the international level. An example would be the
requirement that “war crimes” transpire during a time of
armed conflict. If a prosecutor can establish that each of these
elements has been satisfied, a judge may convict the accused
person of a crime. Conversely, if a prosecutor cannot prove all
the elements of a crime, a judge must issue an acquittal.
The Elements of Genocide
Article 4 of the ECCC Law allows the Extraordinary
Chambers to hear cases involving the international crime of
genocide. A crime rises to the level of genocide when an individual commits a prohibited physical act with the intent to
“destroy in whole or in part…a national, ethnical, racial, or
religious group as such.” This special intent requirement is the
key distinguishing feature in the crime of genocide. The original definition of genocide comes from the Convention on the
Prevention and Punishment of the Crime of Genocide of 1948
(the Genocide Convention). The ECCC Law adopts this traditional definition, set forth in Article 2 of the Genocide
Convention. A deviation occurs in the possible charges of genocide, however. Article 3 of the Genocide Convention contains
five possible genocide charges: attempt, conspiracy, direct commission, incitement, and complicity. The ECCC Law contains
only three possible genocide charges: attempt, conspiracy, and
participation. The ECCC Law therefore differs from the
Genocide Convention by omitting the charges of incitement
60
and complicity and including the charge of “participation.”
The drafters of the ECCC Law appear to have included the
charge of “participation” as a way to encompass the notions of
direct commission, incitement and complicity, though it
remains to be seen whether the Khmer Rouge Tribunal will
adopt this interpretation. This is a very important legal issue,
because many analysts believe that most of the senior officials
of Democratic Kampuchea can more easily be convicted for
complicity in genocide than for attempt or conspiracy. Their
knowledge of genocidal abuses will probably be easier for
prosecutors to establish than their active physical commission
of genocidal crimes. The absence of a charge encompassing
complicity would certainly favor the defense, although it is
worth noting that Article 29 of the ECCC Law does permit
convictions for “aiding and abetting” in genocide, which
other courts have treated as an offense related to complicity.
The Physical Element – The Prohibited Acts
Genocide can be committed in one of the following five
ways: killing members of the group; causing serious bodily or
mental harm to members of the group; deliberately inflicting
on the group conditions of life calculated to bring about its
physical destruction, in whole or in part; imposing measures
intended to prevent births within the group; or forcibly
transferring children from one group to another group. These
acts are specifically listed in the Genocide Convention, and a
defendant must have committed at least one of these acts to
be convicted for genocide. The ICC’s Elements of Crimes
describes the features of these prohibited acts in more detail,
and although this document is not binding upon the
Extraordinary Chambers, judges may look to it for guidance.
The Mental Element
To prove genocidal intent, the prosecution must show
that the defendant committed one of the acts above against a
protected group “with the intent to destroy, in whole or in
part” that protected group. The definition of genocide lists
four protected groups: national, ethnical, racial, or religious.
A prosecutor must prove that a victim was a member of one
of these four groups in order to secure a genocide conviction.
It is highly unlikely that any other group will satisfy the protected group requirement under the definition of genocide
61
that existed during the 1975-79 period, despite more recent
efforts by some legal activists and scholars to include social
and economic groups as well.
The mental element of genocide also requires proving
that the prohibited act against the protected group was done
“with the intent to destroy, in whole or in part as such” that
group. Thus, in committing the prohibited acts, the defendant must have desired the destruction of, at least part of, the
protected group. “In whole” implies intent to bring about the
destruction of the entire group, wherever its members are
located. “In part” can mean the destruction of the group in a
designated area such as within a country, region or possibly
city or smaller area, although the targeted community must
be a substantial part of the overall protected group. It is
worth noting that the intent to destroy a group “in whole or
in part” does not need to be the sole or even primary motive
for committing a prohibited act. That intent can be coupled
with other motives, but the more complicated a defendant’s
alleged rationale for an act becomes, the less likely it is that
the prosecution will be able to establish specific intent to
commit genocide.
Some international lawyers argue that a third element of
genocide exists. This controversial element requires that the
prohibited act was part of a “manifest pattern of similar conduct” or was the type of conduct that could itself bring about
the destruction of a protected group “in whole or in part.”
Although the ICC’s Elements of Crimes includes this element,
it is questionable whether the Khmer Rouge Tribunal will
consider this to be a necessary precursor to a finding of culpability for genocide. At present, there is no clear judicial or
scholarly consensus on the matter. If the Extraordinary
Chambers debate this matter, the tribunal may establish an
important precedent on this unanswered legal question.
Crimes against Humanity
Article 5 of the ECCC Law also gives the Extraordinary
Chambers the power to hear cases involving crimes against
humanity. Crimes against humanity often resemble genocide
in practice, involving mass killing and other grave offenses
against a target population. For reasons described below,
however, they may be easier to prove in the case of
Democratic Kampuchea. In general, crimes against humani62
ty include grave abuses committed as part of a widespread or
systematic attack against any civilian population on political,
national, ethnic, racial or religious grounds.
The Physical Element –Prohibited Acts
There are several acts that can lead to a defendant’s conviction for crimes against humanity. However, scholars are
divided on the question of whether one act is sufficient for a
conviction or whether multiple acts are required. The following list, derived from the ICC’s Elements of Crimes, enumerates
the prohibited acts that can lead to a conviction for crimes
against humanity.
• Murder – Killing one or more persons.
• Extermination – Killing or inflicting conditions of life calculated to bring about the destruction of a population as
part of a mass killing of civilians.
• Enslavement – Exercising ownership over a person (by purchasing, selling, lending, or bartering him or her.)
• Deportation – Unlawful deportation or forcible transfer of
someone whom the defendant knew was lawfully present.
• Imprisonment – Imprisoning one or more persons in a manner that the defendant knew violated fundamental rules
of international law.
• Torture – Inflicting severe physical or mental pain or suffering through unlawful means to persons under the
defendant’s control.
• Rape – Invading the body of a person with a sexual organ
or invading the anal or genital opening with any object.
Committing such act by force, by threat of force, or
against a person incapable of consent.
• Persecution – Severely depriving one or more persons of
fundamental rights due to that person’s membership in a
targeted political, racial, national, ethnic, cultural, religious, gender or other group.
• Other Inhuman Acts – Inflicting great suffering or serious
injury to a victim through an inhumane act of a character
similar to the acts described above.
Unlike the ICC Statute, the ECCC Law omits sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, forced disappearance of persons, and
63
apartheid from its list of acts that could constitute crimes
against humanity. However, the ECCC Law does allow the
possibility that the tribunal will consider these acts to constitute “other inhuman acts.”
The Context Element – “Widespread or Systematic” Attacks
The requirement that attacks must have been “widespread or systematic” is the element of crimes against humanity that takes an ordinary crime and turns it into an international crime. Article 7 of the ICC Statute defines widespread
attacks as “a course of conduct involving the multiple commission of acts,” and it defines systematic acts as those “pursuant to or in furtherance of a State or organizational policy
to commit such attack.” The ICTY and ICTR, both of which
have held that crimes against humanity require attacks to be
either widespread or systematic, have likewise focused on the
scale of abuses in determining whether they were widespread
in nature. The ICTY has held that systematicity turns on the
existence of a definite policy and mobilization of resources to
implement that policy.
It is not entirely clear that either widespread or systematic attacks would qualify as crimes against humanity in the
1975-79 period, as some scholars have argued that both features must be present. The dominant view, however, is that
an attack can give rise to liability for crimes against humanity if it was either part of a broader series of attacks or carried
out in accordance with an organized policy. If prosecutors
cannot prove that a Khmer Rouge defendant committed an
act as part of a widespread or systematic attack, prosecutors
will have to look to domestic offenses in the 1956 Cambodian
Penal Code as avenues to secure a criminal conviction.
The Protected Group Element
The ECCC Law also includes one more element in its definition of crimes against humanity – the protected group element. The protected groups listed in Article 5 of the ECCC
Law are the following: national, political, ethnic, racial, or
religious groups. To constitute a crime against humanity, an
attack must have been committed against one of these enumerated groups. Other tribunals of the post-Cold War era—
including the ICTY, ICTR, and ICC—have not required that
a defendant possess discriminatory intent toward one of these
64
five protected groups. They have treated the identity of a
defendant’s victims as part of the required character of the
attacks. The Khmer Rouge Tribunal may interpret the ECCC
Law in a similar fashion, although the drafting of the law
leaves open the possibility that judges will require discriminatory intent as part of the defendant’s criminal mental state.
Prosecutors will find it considerably easier to convict Khmer
Rouge defendants, and defense counsel will find their task
more challenging, if the judges do not make the “protected
groups” issue a matter of discriminatory intent, which can be
difficult to prove.
The Mental Element –
Knowing of the “Widespread or Systematic” Nature of the Attack
In the Khmer Rouge context, the mental requirement of
crimes against humanity is likely to be less onerous than the
requirement for genocide, depending on how judges interpret
the mental element for crimes against humanity (discussed
above.) To commit crimes against humanity, the defendant
must have known that he or she was participating in widespread and systematic abuses. The ICTY, ICTR, and ICC share
this principle, which requires establishing the defendant’s state
of mind in relation to the prohibited acts. Isolated criminal acts
without the knowledge that they are part of a broader attack
normally do not constitute crimes against humanity, because
this mental element is lacking. In the Khmer Rouge context,
if individual officers committed offenses but were not aware of
the mass atrocities or alleged abusive policies around them,
they are likely to be acquitted of crimes against humanity.
“War Crimes” –
Grave Breaches of the Geneva Conventions
Article 6 of the ECCC Law allows the Extraordinary
Chambers to hear cases involving grave breaches of the four
1949 Geneva Conventions, well-known international treaties
belonging to the body of law known as international humanitarian law. The Conventions protect certain groups against
abuse, such as prisoners of war and civilians. As of the late
1970s, however, most scholars agree that the Geneva
Conventions applied to crimes committed against persons in
the context of international armed conflict. This legal principle may considerably limit the application of war crimes law
65
to Democratic Kampuchea, as discussed below.
During non-international armed conflict, Article 3 of each
of the Geneva Conventions may apply. In each Convention,
Article 3 covers some of the most fundamental principles and
rules of international humanitarian law, including prohibitions on conduct such as murder, mutilation, cruel treatment,
torture, taking of hostages, outrages upon personal dignity,
and lack of a fair trial. Some scholars and jurists have argued
that violations of Article 3 constitute grave breaches of the
Geneva Conventions, but as of the 1975-79 period, this did
not represent the majority opinion in international law.
Consequently, it appears unlikely that the Khmer Rouge
Tribunal will hear cases for war crimes that are based on abuses committed in the context of domestic conflict.
The Physical Element
A number of different acts can constitute the prohibited
physical act for war crimes. Both war crimes and crimes
against humanity contain the prohibited physical acts of willful killing, torture or inhumane treatment, and the deliberate infliction of grave suffering or injury. A number of other
acts more specific to settings of armed conflict are also prohibited. These include:
• Destruction of property – Destroying or taking control of
property extensively and wantonly with no military justification.
• Compulsory service for a hostile power – Coercing someone to
take part in military operations against that person’s own
country or military forces.
• Denial of a fair trial – Depriving one or more people of a
fair and regular trial by denying the judicial guarantees
set forth in the Geneva Conventions.
• Unlawful confinement or transfer – Confining one or more
people unlawfully or deporting or transferring such persons to another State or location in violation of law.
• Taking Civilian Hostages – Seizing, detaining or holding
civilian hostages in connection with threats that the
hostages will be further detained, injured, or killed, or
using hostages to compel a country or other actor to act
in a particular manner.
To satisfy the physical element of war crimes, the defen66
dant must have committed one of the prohibited acts above
against an individual or property protected by the Geneva
Conventions. In determining whether a person or property is
protected under the Conventions, ECCC judges will turn to
the general rule of international humanitarian law that all
non-combatants and non-military targets are protected. A
combatant is generally a person who is actively engaged in an
armed conflict. This can include foot soldiers on the ground
as well as commanders directing actions from distant headquarters. A person who is not taking part in active hostilities
is generally protected under the Geneva Conventions. The
sick and wounded, as well as prisoners of war, are protected
by many provisions in these fundamental international law
instruments. Spies are specifically excluded from protection.
The Khmer Rouge often stated that they were “purging” or
“smashing” spies within their ranks. As will be discussed in
Chapter 4, these were both code words that could mean
killing. It is likely that ECCC judges will be determining
whether there were reasonable beliefs that the people killed
were indeed spies.
Protected property is any property that is not a lawful
military target. However, there is some room in the rule protecting property in that if property is near a military target,
it may not be a war crime if it is inadvertently damaged.
Ultimately, in the protection of non-combatants and nonmilitary targets, the attackers are under a duty to cause as little death, suffering, and damage as possible.
The Context Element
The key to a war-crimes conviction is proving that the
alleged crime bore a “nexus to armed conflict.” This is
referred to as the “context” requirement for war crimes. To
convict a Khmer Rouge defendant of war crimes, prosecutors
must prove both that an armed conflict was taking place at
the time of an alleged criminal act and that the act was linked
to the conflict. It is not clear whether the ECCC judges will
find that sustained internal armed conflict took place within
Cambodia from 1975 to 1979. However, it is quite possible
that the tribunal will find that an international armed conflict existed as border conflict escalated between Democratic
Kampuchea and Vietnam in 1977 and 1978.
67
The Mental Element
To secure convictions for grave breaches of the Geneva
Conventions, the prosecutor must also demonstrate that a
Khmer Rouge defendant inflicted harm “willfully.” In the
Khmer Rouge cases, ordering such abuses, aiding and abetting them, or knowing of war crimes and acquiescing in them
could all establish a “willfulness” that meets the mental element of the offense.
Destruction of Cultural Property
Article 7 of the ECCC Law gives the Extraordinary
Chambers the power to hear cases involving the destruction
of cultural property, citing the 1954 Hague Convention for
the Protection of Cultural Property in the Event of Armed
Conflict (the “Convention on Cultural Property”) as the
source of law for this crime. There is an important problem
with citing this convention as the source of the crime of
destruction of cultural property, however. The convention
does not set forth a crime and does not establish individual
criminal responsibility for violations of its provisions.
The Convention on Cultural Property is a traditional
international treaty signed before the concept of individual
liability became a major part of international criminal law.
Therefore, the treaty binds only sovereign nation-states and
does not address individual criminal responsibility. The remedy for such violations of a treaty is usually for one country to
sue another, for a financial remedy or for a change in conduct,
either in a domestic court or at the International Court of
Justice, which sits at The Hague and hears cases only between
countries and/or international organizations but not cases
against individuals. The Khmer Rouge Tribunal may be
reluctant to infer a crime from a convention that neither
establishes a crime nor mentions individual criminal responsibility. However, there are other sources of law for such a
crime, which are included in the ECCC Law, possibly including customary law and definitely including the Geneva
Conventions, which criminalize certain destruction and
appropriation of property during a time of armed conflict. To
be convicted for this war crime, prosecutors at the Khmer
Rouge Tribunal would have to prove the four basic elements
required for war crimes discussed above.
68
Crimes against Internationally Protected Persons
Article 8 of the ECCC Law gives the Extraordinary
Chambers the power to hear cases involving crimes against
internationally protected persons, citing the Vienna Convention
of 1961 on Diplomatic Relations (the Vienna Convention). This
crime as listed in the ECCC Law suffers from almost the identical legal problem as that discussed in the preceding section
on the crime of the destruction of cultural property. The
Vienna Convention neither mentions a crime nor individual
criminal responsibility. Indeed, this convention was intended
to bind actions by nation-states but not individuals per se.
Similar to the discussion concerning the Convention on
Cultural Property, there is no crime listed in this convention,
and it is highly unlikely that a judge will create a crime
where none exists.
There is, in fact, a convention that contains the crime
against internationally protected persons. It is appropriately
called the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, Including Diplomatic
Agents and provides for punishment of individuals who commit crimes against internationally protected persons.
However, this convention is not mentioned in the ECCC Law,
most likely because Cambodia is not a party to this convention. This poses an additional, significant hurdle in securing
a conviction based on this crime. If it is argued that the clear
intent of the ECCC Law is to include such a crime, it is
unlikely that judges would opt to look at a convention that is
neither mentioned in the ECCC Law nor ratified by
Cambodia.
Judges at the Extraordinary Chambers could argue that
customary international law prohibited the offenses described
in the Convention. That argument would indeed appear to
capture the intent of the ECCC Law to grant jurisdiction over
such crimes. This may prove too great a stretch of authority
for the tribunal’s judges. However, the argument is helped by
the fact that an attack on a diplomat was considered with
piracy and slavery to be one of the three “original” international crimes. As early as 1826, in the watershed case of U.S.
vs. Ortega, the United States Supreme Court arrived at that
conclusion.
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Alternative Charging:
Strategic Use of the Domestic Crimes
Article 3 of the ECCC Law allows the Extraordinary
Chambers to hear cases involving the domestic crimes of
homicide, torture, and religious persecution. These crimes
are taken directly from the 1956 Cambodian Penal Code.
Because Cambodia has an underdeveloped body of criminal
jurisprudence, the elements of these crimes are not welldefined. Judges at the Khmer Rouge Tribunal will be given
considerable discretion in developing the elements of these
crimes and in assessing their applicability to the cases coming before their chambers. There is a good opportunity to
develop jurisprudence with respect to these three domestic
crimes in the course of the tribunal’s proceedings.
Their importance for the tribunal lies partly in the crimes
themselves, which are heinous and certainly should not be
overlooked. However, domestic crimes are also important
because they raise the possibility of “alternative charging.” In
other words, they allow the prosecution to target a defendant
for multiple offenses. They provide a sturdy “safety net” by
capturing offenses that fail to meet one or more required elements of the five international crimes enumerated in the
ECCC Law. For example, if a prosecutor cannot convict a particular defendant on genocide, crimes against humanity, or
war crimes, he or she may nevertheless be able to secure convictions for murder, religious persecution, or torture under
the 1956 Cambodian Penal Code. Such convictions may
attach slightly less stigma to a defendant than a conviction
for one of the more notorious international crimes. However,
a conviction for multiple counts (e.g., one hundred murders
or counts of torture) would still lead to severe criminal penalties, including lengthy jail time. The inclusion of these
domestic crimes makes it less likely that individuals guilty of
grave abuses will be able to escape punishment because their
conduct does not fit neatly into the categories established
under international law.
Potential Defenses Before the Khmer Rouge Tribunal
The right of a criminal defendant to challenge the allegations made against him is inherent in the concept of a fair
trial. Both Cambodian and international criminal law generally allow accused persons to raise one or more defenses, and
70
although the ECCC Law is not entirely clear on the matter, it
is almost certain that a number of defenses will be available
to Khmer Rouge defendants. In general, there are three major
ways for a defendant to challenge an allegation. First, the
defendant can present a jurisdictional defense, arguing that
the court lacks the legal authority to deal with the case.
Secondly, the accused person can challenge an allegation by
showing that the prosecution has failed to meet its burden of
proof. Thirdly, the defendant can raise an “affirmative
defense,” showing that the alleged crime was justified or
excusable under the circumstances of its commission. The following sections review each type of defense in the context of
the Khmer Rouge Tribunal. If the tribunal accepts those
defenses, judges may acquit former officials of the DK regime
on some or all of the prosecution’s charges against them.
Jurisdictional Defenses
As noted above, the Khmer Rouge Tribunal has limited
temporal, personal, and subject-matter jurisdiction. The
ECCC Law allows the tribunal to try only certain types of people for several enumerated criminal offenses. Moreover, the
crimes prosecuted must have been committed during a specific period of time. Consequently, Khmer Rouge defendants
will have three potential forms of jurisdictional challenge.
First, the defendant may submit that the tribunal lacks temporal jurisdiction, either because the alleged crimes were committed before April 17, 1975 or after January 6, 1979.
Second, the defendant may argue that the tribunal lacks personal jurisdiction, because he or she does not fall within the
enumerated categories of those who may be tried. More specifically, the defendant may claim that he or she is neither a former “senior leader of Democratic Kampuchea” nor a person
“most responsible for the crimes” of that period. In addition,
individuals who were granted amnesties or pardons for crimes
committed during the Khmer Rouge regime may argue that
the tribunal has no jurisdiction to try them. This very controversial matter will have to be decided by the Extraordinary
Chambers pursuant to Article 40 of the ECCC Law. Finally,
the defendant may submit that the tribunal lacks subjectmatter jurisdiction by arguing that the charged crimes do not
fall under the court’s legislated authority. This could be the
case if the defendant was, for instance, accused of treason.
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The “Failure to Prove” Defense
If the tribunal determines that it has jurisdiction to hear
a particular case, the defense may still rely on a number of
other defenses. The first of these is the defense that the prosecution has failed to prove all the constituent elements of the
crime. In the cases against former Khmers Rouges, as in other
criminal cases, the burden of proof will rest with the prosecutor. As discussed above, the prosecutor must therefore present
sufficient evidence to prove all elements of a crime before the
tribunal will issue a conviction. If, after reviewing all of the
evidence, the judges find that the prosecutors have failed to
meet their burden of proof in relation to a charge, the defendant will be acquitted on that particular charge.
Consequently, a failure of proof defense consists of raising
doubts with respect to the prosecutors’ case. The defendant
may seek to demonstrate that the prosecutor has failed to
bring sufficient evidence to prove one or more of the essential
elements of a crime by examining the prosecutor’s witnesses
and challenging their credibility and/or reliability; by contesting the documentary evidence submitted by the prosecutors; and by calling defense witnesses or submitting documentary evidence that contradicts the prosecution’s case.
A defendant can also demonstrate a “failure of proof”
through the well-known defenses of alibi or mistaken identity. The defense of alibi is commonly raised before national or
international criminal courts. When raising such defense, the
defendant asserts that he was somewhere else when the crime
was committed and so could not have committed the offense.
Under the ICTY and ICTR Rules of Procedure and Evidence,
defendants must specify their location at the time of each
alleged crime, provide the names and addresses of witnesses,
and add any other information establishing their alibis. For
example, hospital records helped establish an alibi for one
ICTY defendant in the Vasiljesic case. In the Khmer Rouge
cases, the passage of time and lack of clear records may make
alibi defenses difficult, although they will also be challenging
to rebut.
Defense counsel can also raise the possibility that witnesses mistakenly identified the accused person. In assessing
defenses of mistaken identity, the ICTY has examined evidence including the circumstances in which witnesses claim
to have observed the accused, the length of that observation,
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the familiarity of the witness with the accused prior to the
identification, and the description given by the witness of the
accused person. This defense can be strengthened if the
accused can point to another person bearing similar appearance and other shared traits and who could have been present
in the area where the alleged offence took place.
Affirmative Defenses
In addition to the claim that the prosecutor has failed to
prove all the elements of a crime, an accused individual may
raise two types of “affirmative defenses,” namely the defenses
of justification and excuse. Justification defenses consist of
arguments that the accused person’s conduct was, under particular circumstances, morally and socially acceptable and
therefore does not attract criminal liability. The most typical
claim to justify an otherwise prohibited act is self-defense. An
excuse defense attempts to demonstrate that the accused person is not criminally culpable despite having harmed others.
This is the case when, for instance, the defendant was insane
or was acting under duress when he committed an otherwise
punishable act. The UN-RGC Agreement and the ECCC
Law do not specify the range of affirmative defenses available
to the defendants before the Khmer Rouge Tribunal.
However, the 1956 Cambodian Penal Code enumerates standard defenses that could be raised. In addition, during the
Extraordinary Chambers’ proceedings, judges may find guidance in the defenses raised at other international tribunals
and that have been codified in the ICC Statute.
Self-Defense or Defense of Others
One of the affirmative defenses that may come before the
Khmer Rouge Tribunal is the argument that acts of killing or
abuse constituted self-defense. Under certain circumstances,
killing or causing bodily injury to a person to protect oneself
or a third party does not constitute a crime. The 1956
Cambodian Penal code permits such a defense, but only in
response to an unjustified attack when force is based on actual necessity and does not exceed what is required to repel the
attack. The 1956 Cambodian Penal Code also specifies that if
the defendant’s response was excessive, self-defense or defense
of others may mitigate the punishment.
The ICTY recently concluded that permitting self73
defense has become a generally agreed principle of customary
international law, but it established conditions similar to
those in Cambodian law. First, the act must have been in
response to “an imminent and unlawful use of force” against
an attack on a “protected” person or property. Secondly, acts
of defense must have been “proportionate to the degree of
danger.” The ICTY has held, however, that a general claim of
a defensive military posture was insufficient to exonerate a
defendant from criminal liability. The ICC statute also provides for self-defense but specifies that a claim of military
defense alone is not sufficient. This principle could be relevant if Khmer Rouge defendants attempt to justify acts as
responses to Thai, Vietnamese, or American military action.
The Insanity Defense
The insanity defense is a second possible claim that could
come before the Khmer Rouge Tribunal. Articles 89 and 90
of the 1956 Cambodian Penal Code provide that any person
found by a court to be insane at the time of the alleged offense
is not criminally responsible for his or her actions. This principle has also been acknowledged at the international level.
For example, Article 31 of the ICC Statute exonerates individuals suffering from “a mental disease or defect that
destroys that person’s capacity to appreciate the unlawfulness
or nature of his or her conduct, or capacity to control his or
her conduct to conform to the requirements of law.”
Although the ICTY and ICTR have not acquitted any defendant by reason of insanity, in the Delalic case the ICTY recognized the concept of diminished capacity as a reason to
mitigate a defendant’s punishment.
Necessity or Duress
The defenses of necessity and duress offer further possible
exculpatory arguments for Khmer Rouge defendants. The
defense of duress applies when a person commits an offense to
avoid a serious and imminent danger to him or to his family
from another human being. The classic example is the threat
of a gun being pointed at one’s head. The defense of necessity is typically used when a person commits an offense to avoid
a danger created by natural forces. These defenses are accepted in most legal systems and are apt to be permitted in the
Extraordinary Chambers as well.
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The 1956 Cambodian Penal Code state that an offender is
not criminally responsible if he or she committed an otherwise prohibited act due to an irresistible force or “force
majeure.” The law defines force majeure as a state of absolute
necessity in which the defendant faced an imminent and
inevitable danger not of his own creation that he could only
avoid by committing the offense. The ICC Statute also recognizes duress as a defense under specific conditions, when the
defendant or a third party faced imminent death or serious
bodily harm. The ICC only exculpates a defendant if he or she
acted in a manner necessary and reasonable to defuse the
threat and if the threat arose from other persons or circumstances beyond the defendant’s control.
However, there is some disagreement in international law
about applying duress or necessity as a defense to murder.
The ICTY had to deal with this issue in the Erdemovic case. In
that case, a Bosnian Serb admitted to killing Muslims at
Srebrenica in 1995 but claimed that if he had refused, his fellow Serbs would have killed him. The ICTY Appeals
Chamber ruled that duress did not offer a complete defense to
a person charged with a crime against humanity or a war
crime involving the killing of innocent persons. However, the
court allowed duress to be considered as a mitigating factor
in punishment. Domestic legal systems have diverged on this
controversial issue.
Additional Defenses
A number of other defenses may also be available to
Khmer Rouge defendants. Age is one possible exculpatory factor. Under the 1956 Cambodian Penal Code, an offender
under the age of eighteen at the time of the offense can be
found guilty only after a determination of his ability to discern his crime when committed. A defendant’s mistake of fact
can also be a legal excuse for what would otherwise be a crime.
For example, an accused person may contend that he mistakenly believed that the object he was shooting was a tree stump
rather than a human being. A mistake of law is less likely to
be successful as a defense; defendants are generally not able to
escape guilt by claiming that they did not realize their act was
a crime. The ICC Statute recognizes both of these defenses,
only when the mistake of fact or law negates the mental element required by the crime in question.
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Defenses Rejected in International Criminal Law
In addition to the aforementioned defenses that could be
raised successfully at the Khmer Rouge Tribunal, there exist
other defenses that have been held inadmissible in international criminal law and are therefore much less likely to be
accepted. The ECCC Law specifically rejects two such defenses: arguments based on the position or rank of the defendant
and the defense of superior orders.
Immunity from Prosecution based on Position or Rank
Article 29 of the ECCC Law provides that government
officials will enjoy no immunity from prosecution, stating
that “the position or rank of any suspect shall not relieve such
person of criminal responsibility or mitigate punishment.”
The ICTY Statute and the ICTR Statute likewise reject sovereign immunity as a valid defense for any defendant, regardless
of rank, from the head of state to low-ranking officials. The
ICC Statute goes one step further, specifying that a defendant’s position does not constitute a mitigating factor for punishment. Moreover, the ICC does not recognize any national or
international procedural rule that would bar the court from
exercising jurisdiction over officials of a certain rank.
The Defense of Superior Orders
Since the Nuremberg trials, the mere fact that a subordinate followed the orders of a superior is not a defense to an
international crime. The rationale behind this is that orders
to commit crimes, such as genocide or crimes against humanity, are so clearly unlawful that any person should recognize
the illegality of the order. In the event of illegal orders given
by superiors, the Cambodian Penal Code empowers the court
to determine the degree of culpability of the defendant. By
contrast, Article 29 of the ECCC Law specifically states that
the defense of superior orders is not admissible before the
Khmer Rouge Tribunal. The ECCC Law provides that: “The
fact that a Suspect acted pursuant to an order of the
Government of Democratic Kampuchea or of a superior shall
not relieve the Suspect of individual criminal responsibility.”
The statutes of both the ICTY and ICTR contain provisions
very similar to Article 29 of the ECCC Law. Article 33 of the
ICC Statute allows this defense in certain cases, but not when
the act ordered was “manifestly unlawful.” It specifically
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names genocide and crimes against humanity as examples of
manifestly unlawful conduct. The likely absence of this
defense may be extremely important in the Khmer Rouge
Tribunal, where some defendants are apt to claim that they
were simply responding to orders.
Conclusions
As this chapter has shown, a number of important questions of substantive law will face the tribunal when criminal
trials begin. The Extraordinary Chambers’ decisions and
judgments on these questions will have profound consequences for all parties and for future courts that cite them as
precedents. One issue that will face the judges will be the
need to determine whether the doctrine of superior liability
applied outside of the context of international armed conflict
in 1975. That decision could have important consequences
for many of the cases against former Khmer Rouge officials.
A second set of issues will arise from the fact that two of
the crimes that fall under the tribunal’s jurisdiction—the
destruction of cultural property and crimes against internationally protected persons—refer to sources of law that do not
specifically establish a crime and do not mention individual
responsibility. Judges may look to the Geneva Conventions as
a basis for trials on the destruction of cultural property, and
they may look to international customary law to support the
intent of the drafters of the ECCC Law and include crimes
against internationally protected persons within the tribunal’s jurisdiction. There are indeed precedents for this
international crime in other domestic judicial systems.
The definition of crimes against humanity in the ECCC
Law raises important questions by containing a reference to
protected groups that the tribunal could interpret as either a
part of the physical or mental element of the crime. The
judges’ decision on how to interpret this law—whether to
follow the ICC, ICTY, and ICTR or to adhere to earlier legal
authorities and require discriminatory intent—could have
major consequences for the trials. The tribunal’s decision on
that legal question will likely affect the outcome of the trials.
It will affect a Prosecutor’s decision on whether to attempt to
charge Defendants with crimes against humanity. It will also
affect judges’ evaluations of whether all elements of the crime
are proven beyond a reasonable doubt, thus impacting the tri77
bunal’s ultimate verdicts.
This chapter has also demonstrated that important issues
will face the prosecutors of former Khmer Rouge officials. For
all three of the “principal” international crimes—genocide,
crimes against humanity, and war crimes—proving all of the
required elements will be challenging. To secure a genocide
conviction, a prosecutor will need to prove there was a protected group, and that the prohibited act was committed
“with the intent to destroy in whole or in part” that group.
Because of the difficulty in applying the mental element of
genocide, it is unlikely that the crime of genocide will cover
the overall mass death that occurred in Cambodia between
1975 and 1979. Genocide may nevertheless be helpful in
securing convictions for crimes committed against such
groups as the Cham Muslims, ethnic Vietnamese and Chinese
minorities, foreigners, hill tribes, and Buddhist monks.
The ECCC Law’s definition of war crimes also leaves
important questions unanswered. If the tribunal does not
require war crimes to occur in the context of international
armed conflict and determines that domestic conflict existed
for most or all of the DK era, the prosecution will enjoy considerable scope for bringing war crimes charges. If the judges
do require the nexus to international armed conflict, however, prosecutors will face greater challenges in establishing
that Khmer Rouge defendants committed war crimes.
Charges may focus on the early months of the Khmer Rouge
regime, and prosecutors may argue that the purging of Lon
Nol supporters took place within the context of the 19701975 civil war and the broader Second Indochina War pitting
the Lon Nol regime and its American allies against the
Khmers Rouges and their external supporters from Vietnam,
China, and other communist countries. If the tribunal does
not accept this argument, a war crimes conviction for offenses early in the DK period will be less likely.
Prosecutors may also argue that international armed conflict existed between Cambodia and Vietnam for most of the
DK period and particularly in 1977 and 1978, when mounting clashes along the DK-Vietnamese border brought the two
countries to the verge of all-out war. If the Extraordinary
Chambers accept such an argument, war crimes convictions
will be considerably more likely. Should the tribunal determine that border clashes with Vietnam (and to a lesser extent,
78
Thailand) did not constitute international armed conflict,
defense counsel will be more likely to secure acquittal on war
crimes charges.
The domestic crimes of homicide, torture, and religious
persecution, taken from the 1956 Cambodian Penal Code, are
likely to pose fewer complexities for judges, prosecutors, and
defense counsel. To obtain a conviction for a domestic crime,
a prosecutor need not prove an intent to destroy a protected
group “in whole or in part” as is required for genocide, the
“widespread or systematic” attack as is required for crimes
against humanity, or that the alleged criminal act took place
within the context of an armed conflict, which is likely to be
required for war crimes. These elements are difficult to prove
because they require a large volume of evidence and insight
into defendants’ mental states.
It is also worth stressing that the important substantive
legal questions cited above also do not exist in a judicial vacuum. They could become entangled in political sensitivities.
All international and hybrid tribunals have faced delicate
political issues that put pressure on judges to decide on issues
of substantive law in a particular fashion. For the Khmer
Rouge Tribunal, pressure to deliver guilty verdicts relating to
the “major” crimes, above all genocide and crimes against
humanity, should not result in substantive legal decisions
that violate the rights of defendants. If the Khmer Rouge
Tribunal is able to issue credible and well-reasoned decisions
on the definitions of the criminal offenses discussed in this
chapter, it has the potential to contribute very important
jurisprudence to the emerging and expanding field of international criminal law.
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Ieng Sary, Khieu Samphan and a Lao Delegation at Banteay Srey Temple
80
3
Mechanics of the Tribunal:
The Rules of Evidence and Procedure
Katrina Anderson
Certain former Khmer Rouge officials, including the former leaders of the Democratic Kampuchea (DK) regime, are
commonly assumed to be guilty of committing a host of
domestic and international crimes. However, holding them
legally accountable for their actions is not as simple and
straightforward as one might expect. The challenge for every
accountability process is to establish an efficient, fair, and transparent process for adjudicating the alleged criminal offenses in
order to protect the rights of all parties involved, including the
accused. The rules of evidence and criminal procedure define
the criminal process and will constitute the “rules of the game”
for prosecuting or defending former Khmer Rouge leaders.
Adherence to internationally accepted rules will constitute partial success for the tribunal, regardless of whether convictions
are secured. This is because proving the guilt or innocence of
Khmer Rouge leaders is only one goal of the tribunal; another
critical objective will be to demonstrate procedural fairness and
help to build a stronger rule of law in Cambodia.
The rules of evidence govern the types of information that
may be used to prove the innocence or guilt or a particular
defendant. The rules of procedure protect the rights of the
defendant and regulate every stage of the proceeding—from
the initial indictment of a defendant to the investigation, presentation of the evidence before judges, trial judges’ decision
and sentencing, and appeals process and final judgment. Every
individual involved in the trial process, including police
investigators, witnesses, prosecutors, defense attorneys,
Investigating Judges, and adjudicators in the trial and appeals
chambers, is legally obligated to follow these rules. Failure to
adhere to the rules of evidence and procedure can lead to the
overturning of a conviction on appeal or even accusations that
the tribunal itself is illegitimate.
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Purposes of the Rules of Evidence & Procedure
The overriding purpose of evidentiary and procedural
rules is to ensure that trials meet fundamental standards of
fairness and justice. The rules provide consistency from trial
to trial so that defendants are treated similarly. These accepted practices also promote the efficiency of trials by obviating
the need to litigate every procedural step in the trial.
Furthermore, the rules promote transparency by establishing
guidelines that outside observers can use to assess the fairness
of the proceeding. The consistent and transparent administration of justice sends the message that no one is above the
law, even where one defendant may hold certain advantages—such as political influence or personal wealth—over
another. In this way, applying widely accepted rules of evidence and criminal procedure can play a key role in delivering justice and bringing an end to impunity in Cambodia
and elsewhere.
The same rules that will be used to conduct trials of
Khmer Rouge defendants will also protect their rights as
accused persons—a touchstone for a just trial in every modern legal system. The International Covenant on Civil and
Political Rights (ICCPR) establishes the rights of the accused
as a fundamental human right under international law.
Reaffirming the spirit underlying the Universal Declaration
of Human Rights, the countries that became parties to the
ICCPR recognized that a defendant in a criminal trial
deserves certain minimal protections simply by virtue of
being human. One of the most important procedural rights
under the ICCPR is the defendant’s presumption of innocence. This principle derives from international norms that
recognize the dignity and personality of every individual, as
well as from a nearly universal understanding that prosecuting authorities have certain advantages in an adversarial system. For this reason, courts of law in most modern legal systems presume that the accused is innocent of an alleged crime
until he or she is proven guilty.
From a procedural standpoint, the presumption of innocence principle places the burden of proof at trial on the prosecution rather than on the defense. According to basic principles of common law, the prosecution must prove the case
“beyond a reasonable doubt” or, in civil law systems, to the
satisfaction of a judge’s “innermost conviction.” That is, the
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prosecution must present sufficient evidence of the defendant’s guilt in order to obtain a conviction. If at the close of
the prosecution’s case, there is still doubt as to the defendant’s
guilt, that doubt benefits the accused. Before international
criminal tribunals, the prosecution carries a heavy burden to
persuade the court “beyond a reasonable doubt” that particularly serious and systematic crimes such as genocide, war
crimes, and crimes against humanity were a result of the
accused person’s culpable acts or omissions.
Finally, procedural and evidentiary rules help to ensure
that any conviction obtained through a fair trial will be treated as legitimate. The rules are designed to avoid outcomes
such as that of the much-criticized 1979 “show trials” of Pol
Pot and Ieng Sary. As described in Chapter 1, Pol Pot and
Ieng Sary were convicted in their absence without the opportunity to present evidence in their own defense or to confront
witnesses. The fact that they were denied procedural rights,
including a chance to tell their story in court, was one reason
why the international community widely condemned these
trials as illegitimate and refused to recognize the convictions.
By following internationally recognized standards of procedural fairness, the Extraordinary Chambers in the Courts of
Cambodia (ECCC) can avoid this outcome and issue convictions with a greater degree of finality and legitimacy.
Development of the Rules of Evidence & Procedure
The most common rules of procedure derive from the two
dominant types of legal systems in the world, referred to as
the “civil-law” and “common-law” systems. These systems
emerged from the legal traditions of continental Europe and
the British Isles, respectively. The immense international
influence of European ideas, states, and societies during the
colonial and modern eras has led most countries to adopt a set
of laws and procedural rules based on one of those two frameworks. In Cambodia and many other developing countries,
laws dating from the colonial era have been adapted, updated, and reshaped to better represent local cultural and religious norms and post-colonial political realities.
One basic distinction between these two frameworks is
that common-law systems allow for “judge-made” law. In
such a system, the decision of one or more judges can become
a binding precedent and source of law in future cases. In con83
trast, civil-law systems are primarily code-based, and a
judge’s decision may be prospectively useful only as persuasive—but not binding—authority. Another major distinction is that in civil-law systems, professional judges determine a defendant’s guilt or innocence in most criminal cases,
whereas common-law systems entrust verdicts to lay jurors.
This gives civil-law judges more freedom to exercise discretion on procedural and evidentiary matters than common-law
judges, who must cautiously avoid prejudicing a jury.
Procedural and evidentiary rules can be less rigid in the civillaw context, where judges are presumed to be sophisticated
and less prone to bias or to misjudgment of the value of suspect evidence.
Cambodia’s criminal laws and procedure have been heavily influenced by the French civil-law system, and its procedural rules are therefore based on the French notion of “la liberté des preuves.” Under this principle, a judge has great discretion to admit a wide range of evidence. He or she weighs that
information before making a determination of guilt based on
his or her “intime conviction,” a French term that signifies a
mix of legal judgment and moral conscience. The Cambodian
Constitution adopts these principles in a basic framework for
criminal procedure, while more detailed provisions are located in several specific laws.
Unlike domestic court systems, there are no uniform rules
of procedure in international law. Rather, international criminal procedure draws from both the civil and common-law
systems that have shaped it over the course of the past 60
years. The International Criminal Tribunal for the Former
Yugoslavia (ICTY) and International Criminal Tribunal for
Rwanda (ICTR)—the most well-known and influential international criminal tribunals since the Nuremberg trials of officers of Nazi Germany—have developed their own particular
set of rules for the proceedings. The hybrid tribunals have
taken varied approaches, with the Special Court for Sierra
Leone relying upon the procedural rules developed at the
ICTR and the court in East Timor crafting its own rules to a
greater degree.
Despite variations among these sets of rules, certain common principles have emerged from these tribunals. Most
notably, international tribunals created since the end of the
Cold War have favored codified rules of procedure and evi84
dence. The statutes establishing these tribunals have authorized judges to adopt and amend rules of procedure and evidence as necessary. To draft a separate code of procedure and
evidence, the judges drew largely from pre-existing principles of international criminal law as well as those of national
legal systems. As the tribunals refine their rules, they engage
in a constant process of codification. This body of rules contributed heavily to the formation of the Rules of Procedure
and Evidence for the International Criminal Court (ICC),
now the most authoritative and comprehensive articulation of
standards for international criminal procedure. To a significant extent, all these sets of rules are almost certain to influence the procedure that the Extraordinary Chambers will
adopt and follow.
Procedural Rules for the Khmer Rouge Tribunal
Unlike other international tribunals, the statute that created the Extraordinary Chambers does not authorize its
judges to draft separate rules of evidence and procedure. As a
hybrid tribunal with both domestic and international features, the Khmer Rouge Tribunal will apply primarily
Cambodian laws of criminal procedure but draw on international rules as needed. Article 12 of the 2003 Agreement
between the United Nations and Royal Government of
Cambodia (the “UN-RGC Agreement”) sets forth the guidelines that the tribunal will follow for procedural matters:
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.
Similarly, the law governing the Extraordinary Chambers
(the “ECCC Law”) also allows judges to consult international
law where necessary to fill in the gaps between domestic
Cambodian law and international standards. Because
Cambodian criminal procedure contains many uncertainties
85
and inconsistencies, international law is likely to play an
influential role over the rules of procedure in the tribunal. As
written, the laws creating the tribunal provide wide flexibility for judges as long as they adhere to international standards of justice, fairness, and due process. A preliminary challenge for the judges will be to recognize the gaps that exist
between Cambodian law and international legal standards.
This may be particularly true for the Cambodian judges
accustomed to applying local rules of evidence and procedure
rather than international law.
There are various sources of Cambodian criminal procedure, and the relationship among the laws is somewhat
unclear, even to Cambodian lawyers and judges. The two
modern sources of criminal procedure law in Cambodia are the
1992 statute of the United Nations Transitional Authority in
Cambodia and the more detailed State of Cambodia Law on
Criminal Procedure (the “SOC Law”), passed in 1993. Taken
together, these laws protect the rights of the accused, providing a right to counsel, a prohibition on cruel and unusual punishment, the presumption of innocence, and the right to
appeal. They also specify procedures concerning searches,
arrest and detention, assurance of an impartial court, and
statutes of limitations on crimes. Nevertheless, Cambodia
lacks a comprehensive criminal procedure law for the
Extraordinary Chambers to consult. Additionally, substantial
gaps exist between the domestic laws and the international
standards, particularly concerning rights of the accused and
the protection of victims and witnesses.
Most worrisome to international observers is the possibility that the ECCC judges, prosecutors, and investigating
judges will consult these laws to find the answer to procedural questions as they arise. If procedural rules are applied on an
ad hoc basis, the actors in the tribunal could interpret them
differently with every application. In particular, there exists
the possibility that Cambodian lawyers and judges will interpret the rules differently than their international counterparts
or that both sides will be confused by the need to apply an
unclear patchwork of domestic and international guidelines.
This could undermine a key goal of the rules of procedure—
the consistent application of the rule of law—and threaten
the tribunal’s ability to meet international standards of fairness and transparency.
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It would be preferable to adopt separate rules of procedure
and evidence before the tribunal convenes. An established body
of rules would promote consistency and appease the concerns of
international observers who insist on fair trials. However, it is
premature to predict the procedural rules that the tribunal will
follow when it comes into existence. A criminal law and procedure reform bill, the French-drafted “Penal Code and Code of
Criminal Procedure,” now awaits passage by the National
Assembly. Although the bill would greatly clarify Cambodia’s
complex rules of criminal procedure, it may not become law
prior to the establishment of the Extraordinary Chambers.
Article 135 of the Cambodian Constitution requires that “the
functioning of the judiciary shall be defined in separate laws.”
In other words, the Constitution requires legislative approval
of all procedural rules.
The Cambodian Constitution will prevent the Khmer
Rouge Tribunal from adopting a set of procedures unless the
National Assembly explicitly grants the ECCC judges such
authority. The National Assembly could do so by amending
the ECCC Law to allow the judges to draft their own rules of
procedure, as other tribunals have done. The Royal
Government of Cambodia’s Khmer Rouge Trial Task Force
has reportedly been drafting rules of procedure, though it is
unclear whether this is intended to be a formal set of rules per
se. As of the time of this writing, the draft rules have not been
publicly released, and their drafting could conceivably cause
further delays in the creation of the tribunal. For the reasons
discussed above, the rules of procedure and evidence have
become one of the most controversial issues surrounding the
establishment of the tribunal.
Although the ECCC Law and UN-RGC Agreement
clearly do not provide a full set of evidentiary and procedural rules, they do set forth a basic architecture for the trial
process. The following sections discuss the rights and obligations of the various actors in the Khmer Rouge Tribunal at
each major stage of the planned legal proceeding: pre-trial
and investigation, trial, and appeal. The discussion basically
proceeds in chronological fashion, treating the relevant rules
of procedure and evidence broadly in the order that they are
likely to arise and illustrating how they fit together in the
criminal process. Finally, this chapter highlights some problems that may confront the Extraordinary Chambers due to
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tensions between Cambodian and international criminal procedure: certain domestic rules of procedure may offer fewer
guarantees of a fair trial than would international standards of
due process embodied in the ICCPR and incorporated in the
statutes of the ICC, ICTY, and ICTR.
The Pre-Trial and Investigation Phase:
Building Cases against the Khmer Rouge
As in every criminal trial, much work will take place
before the commencement of each trial in the Extraordinary
Chambers to ensure that cases are brought against the proper
individuals. During this time, the prosecutors and
Investigating Judges will gather evidence on a criminal case
while the defense seeks to challenge incriminating evidence
and to argue that the charges should be dismissed. This stage
of the proceedings is known as the pre-trial and investigation
phase. Under Cambodian law, this stage always encompasses
two phases in a felony case: a short preliminary investigation
led by the prosecutors and an ensuing judicial investigation
led by the investigative judges.
In the investigation stage, the prosecutors will first gather evidence on the commission of a crime. If there is sufficient
evidence that a felony has been committed, the prosecutors
will request the opening of a judicial investigation on an
“investigative request form,” hand over the file, and inform
the Investigating Judges about the nature of the alleged
crime and the suspects. During the judicial investigation,
more evidence is gathered for use in the upcoming trial. Once
the investigation is complete, the case will be sent back to the
prosecutors, who will prepare an indictment called an “order
of final conclusion.” The prosecutors will deliver the indictment to the investigative judges, and if those judges consider that the facts constitute a felony and that the evidence sufficiently substantiates the charge against the accused, they
will issue an order to put the case before the trial chamber.
One example of an issue likely to come before the pretrial chamber of the Khmer Rouge Tribunal is whether the
Cambodian government’s pardon to Ieng Sary for his 1979
conviction is binding on the Extraordinary Chambers; if the
court finds that it is, Ieng Sary cannot be prosecuted. Thus,
the rules for the pre-trial and investigation phase govern the
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conduct of prosecutors, police, and Investigating Judges
while protecting the rights of suspects during custody and
interrogation.
Prosecutors and Investigating Judges
The ECCC Law creates an office of two co-Prosecutors—
one international and one Cambodian national—who will
work together to prosecute cases before the tribunal. This is
one way in which the pre-trial and investigation phase of the
ECCC proceedings will work differently than in other international tribunals. The ICTY and ICTR had an office with a
single Prosecutor, and the ICC has since adopted that model.
At the ICTY and ICTR, prosecutors hold clearly defined
powers and control all stages and aspects of the investigation,
from issuing indictments to questioning suspects and witnesses, to collecting evidence, to conducting onsite investigations. In this way, prosecutors perform the functions of both
the prosecutor and the investigating judge in the civil-law
system. In contrast, the Khmer Rouge tribunal retains the
Cambodian and civil-law preference for two separate offices,
where the two co-Investigating Judges are strictly responsible for the investigation and the co-Prosecutors conduct only
the prosecution.
A potential problem with this institutional structure is
that neither the ECCC Law nor the UN-RGC Agreement
clearly specifies the division of roles between co-Investigating
Judges and co-Prosecutors. The power-sharing arrangement
reflects the inquisitorial nature of the civil-law system, meaning that these actors have a duty to gather evidence that is
favorable to both the prosecution and the defense. But the
relationship between the prosecutor and investigating judge
in Cambodian law is vaguely defined, and they collaborate far
more than correlative offices in other civil-law systems. This
loose structure raises concerns about the independence of the
prosecutor in the Extraordinary Chambers. Indeed, the lack
of precedent for the role of investigating judges in international tribunals, combined with the vague relationship
between the investigating judge and prosecutor in the
Cambodian system, may complicate the proceedings in the
pre-trial and investigation phase and cause undue delays as
the structure is clarified.
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Dispute Resolution Mechanism
As discussed in Chapter 1, the decision to create the office
with two co-Prosecutors was the result of a compromise
among the drafters of the ECCC Law. This decision was one
of the contentious issues during the negotiation phase for the
tribunal. But the drafters also envisioned that disputes would
arise between the prosecutors, particularly over the ultimate
issue of which suspects to indict. To address such impasses,
the ECCC Law includes a dispute resolution mechanism. If a
dispute arises, one of the prosecutors may request that a pretrial chamber of judges resolve it within thirty days. The
chamber must reach an agreement by a super-majority vote of
four out of five judges. The super-majority vote requires at
least one international judge to consent in the decision. If the
judges fail to attain a super-majority vote, the investigation
or prosecution will proceed as before. A similar mechanism
exists for the co-Investigating Judges, who may disagree over
the conduct of investigations.
The goal behind the super-majority provision was to check
controversial indictments. However, if the Pre-Trial Chamber
does not block an indictment by a super-majority vote, the
prosecutor may move forward. An example will illustrate why
this is problematic. Imagine that the Cambodian coProsecutor indicts a suspect for a crime but the international
co-Prosecutor does not believe enough facts exist to support
the indictment. The international co-Prosecutor may file a
complaint to the Pre-Trial Chamber and ask the panel of
judges to review the facts. Imagine that the judges fail to
block the indictment by a super-majority vote, because the
three Cambodian judges find the supporting facts adequate.
The Cambodian Prosecutor could then proceed with the
indictment under Article 20 of the ECCC Law, which states
that “if there is no [super-]majority as required for a decision,
the prosecution shall proceed.” Thus, an indictment would go
forward even though the international Prosecutor and international judges deemed the evidence inadequate.
The Right to Appeal Pre-Trial Decisions
International standards may be further threatened during
this phase because the ECCC Law denies the right to appeal
a decision by the Pre-Trial Chamber. The 1993 Cambodian
Law on Criminal Procedure allows an accused person to
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appeal certain decisions by the Investigating Judges, but
Khmer Rouge defendants will not be permitted to challenge
decisions of the Pre-Trial Chamber, which is tasked with
resolving differences between co-Investigating Judges. The
restriction on a right to appeal at the pre-trial level does not
technically jeopardize the international right to appeal a conviction or sentence (as set forth in Article 14 of the ICCPR),
but it arguably violates that principle in spirit.
The Khmer Rouge Tribunal’s rejection of all appeals of
pre-trial decisions is also somewhat contrary to the procedure
in other international and hybrid courts. The Pre-Trial
Chamber of the ICC has a more expansive role than the ECCC
Pre-Trial Chamber, but the ICC Statute allows appeals of certain decisions of its Pre-Trial Chamber on an expedited basis,
as well as appeals of decisions that would affect the right to a
fair or speedy trial. The Special Court for Sierra Leone permits
preliminary jurisdictional challenges to be filed with the
Appeals Chamber for swift determination. The limited role of
the ECCC Pre-Trial Chamber reduces the importance of a
right to appeal, but the ECCC Law’s prohibition on such
appeals is not irrelevant. It appears that if co-Investigating
Judges agree on a procedural matter, Khmer Rouge defendants will have a right to appeal their collective decision, but
if they disagree and the Pre-Trial Chamber decides the matter,
they will not be able to challenge the result. This may compromise justice in cases that depend largely on procedural
issues decided during the preliminary phases.
The Trials of Former Khmer Rouge Leaders
The investigation and preparatory work culminate in the
trial phase of the proceedings, which determines the guilt or
innocence of the accused. The underlying rationales of fairness and efficiency are often in tension in the trial phase, as
the judge is responsible for protecting both the rights of the
accused and the rights of witnesses and victims while ensuring a speedy trial. Article 33 of the ECCC Law reflects these
tensions:
The Extraordinary Chambers of the trial court
shall ensure that trials are fair and expeditious and
are conducted with existing procedures in force, with
full respect for the rights of the accused and for the
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protection of victims and witnesses. If necessary, and
if there are lacunae in these existing procedures,
guidance may be sought in procedural rules established at the international level.
During the trial, both parties present their case before the
Trial Chamber, in this case a panel of five judges (three
Cambodian and two international). The accused is heard first,
followed by the witnesses of all parties, namely the Prosecutor,
the victim of the alleged crime, and the defense. Once all the
evidence is submitted, the parties make their closing speeches. Afterwards, the judges deliberate and make their decision.
As with the Pre-Trial Chamber, decisions require an affirmative vote of at least four judges—a super-majority. Where
judges are unable to achieve unanimity in their decisions, they
are required to include both majority and minority opinions
in the final judgment. Finally, the judges must issue a sentence commensurate with the judgment. At the Khmer
Rouge Tribunal, the maximum sentence is life imprisonment.
Presentation & Examination of the Evidence
During the trial phase of the Khmer Rouge proceedings,
evidence will be presented and examined in court. This evidence will include documentary materials and testimony
from witnesses. Defendants may also testify, although the
ECCC Law does not compel them to do so. Unlike common
law systems, where lawyers lead the questioning, judges
interrogate the defendants and witnesses in Cambodia and
other civil law systems. Prosecutors and defense lawyers may
supplement judges’ inquiry by posing additional questions.
Witnesses for the prosecution will be examined first, followed by individuals testifying for the defense.
The main function of rules of evidence is to set standards
by which judges admit and evaluate information relating to
the guilt or innocence of the accused. Although a court will
accept evidence presented in many different forms, judges will
consider information only if it meets certain standards of
admissibility. Cambodian criminal procedure permits flexible
standards for admissibility of evidence, but the Extraordinary
Chambers will probably require that every piece of evidence
meet certain threshold qualifications. Evidence presented
against former Khmer Rouge leaders in the tribunal should be
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relevant, probative, and authentic. These minimum standards
of admissibility are designed to ensure that all evidence presented before the court is relevant to the case and trustworthy.
Admissibility of evidence must be distinguished from the
weight that judges will accord to a piece of evidence once it is
admitted. Just because a piece of evidence is admitted does not
guarantee that judges will rely on that evidence when making
a determination as to the defendant’s guilt or innocence. Both
the prosecution and the defense seek to introduce evidence that
not only meets the requirements for admissibility but also
bears indicia of reliability that maximize the weight of the
information. This section addresses general evidentiary concepts, while Chapter 4 will detail the various types of evidence
that are apt to be presented before the tribunal.
Relevance and Probative Value
Evidence is considered relevant and probative if introducing that evidence in court would make it more or less likely
that a material fact is true. Relevance includes the concepts of
probative value, the logical tendency to prove or disprove a fact
of consequence, as well as materiality, whether the proffered
evidence bears on the particular fact in issue. Relevant evidence
may be either direct or circumstantial, and the Khmer Rouge
trials will almost certainly include both varieties.
Direct evidence is that which may be directly linked to an
alleged crime or perpetrator. In the Extraordinary Chambers,
for example, direct evidence may include forensic evidence
showing how a victim was killed, or an authentic document
proving that a Khmer Rouge commander ordered a subordinate soldier to kill “enemies” of the regime. Conversely, circumstantial evidence does not provide a direct link, but a
link that leads to an inference that an alleged fact is true or
false. Circumstantial evidence is not less relevant than direct
evidence, but standing alone it may be insufficient to prove
the truth or falsity of an alleged fact. Hence the most persuasive circumstantial evidence is corroborated by other pieces of
direct or circumstantial evidence such as witness testimony.
In this way, direct and circumstantial evidence work together
to tell the full story.
Whether relevance plays a large or small role in the
admissibility of evidence depends on the type of legal system
at issue. Common-law systems, such as that found in the
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United States, impose strict relevance standards because they
rely on citizen juries to make factual determinations.
Threshold requirements such as relevance ensure that the evidence does not unfairly prejudice decision-makers. In contrast, the civil-law system grants wider flexibility in admitting evidence, because the fact-finders are professional judges
who are presumed to be less susceptible to bias if confronted
with prejudicial evidence.
International tribunals generally follow the flexible standards of admissibility in the civil-law system, though they
have also incorporated certain elements of the common-law
system. For example, both the ICTY and ICTR exclude evidence when its prejudicial effect substantially outweighs its
probative value. For example, in cases involving mass atrocities, shocking photographs and narratives can be among the
most probative evidence presented in court. However, admitting graphic photographs as evidence may arouse emotions
and bias an adjudicator against a defendant. If the court
believes such bias would outweigh the probative value of the
evidence, such evidence will be excluded. Professional judges
in civil-law systems are generally less likely to be prejudiced
by such evidence than lay jurors in common-law systems.
Consequently, it is unlikely that the Khmer Rouge Tribunal
will exclude much, if any, evidence on this basis.
Reliability of the Evidence
A piece of evidence must also be reliable before it is
admitted. Evidence comes in many forms, but judges will
likely treat some forms of evidence as more reliable than others. The more reliable that a piece of evidence is deemed to
be, the more weight it will carry as the judges decide upon
the defendant’s guilt or innocence. Of course, every form of
evidence has its advantages and disadvantages. Documentary
evidence is generally preferred as the most reliable form of
evidence, but those produced closer in time to the alleged
crimes will be given more weight. Lay witness testimony may
provide enough evidence to establish an initial case against an
accused, but such testimony may also be prejudicial to the
defendant due to the defects of human memory. Expert witness testimony may play a particularly important role in trials where evidence requires interpretation in order to be
meaningful, but experts may have their own sets of biases. An
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affidavit, or a sworn statement by a witness or victim, can be
tested for its facts but denies the other party an opportunity
to test the witness’ credibility in court. Forensic evidence can
be very valuable for proving how and when crimes occurred
but can rarely prove on its own that a particular defendant
committed the act. Parties will draw on a combination of different types of evidence in order to maximize the probative
power of each piece of evidence.
Documents may provide direct or circumstantial evidence
to prove (or disprove) an element of a crime. Documentary
evidence includes evidence recorded in various forms, such as
official documents, letters or photographs. Such evidence
may date from the time the acts occurred, such as a written
order to kill written by a Khmer Rouge official in 1978.
Evidence may also have been recorded subsequently, as in
taped interviews of witnesses. Tens of thousands of documents will likely be admitted at the Khmer Rouge trials, but
those produced at or near the time the crimes occurred will
generally be accorded the most weight by the judges.
The important factor for purposes of reliability is not the
quantity of information, but its quality. For example, the
court would probably consider a prison guard’s report of torture at Tuol Sleng highly reliable, because the report was
written very close to the point in time when the acts were
committed. In contrast, the court would probably not give as
much weight to a description of torture at Tuol Sleng contained in a survivor petition written a few years after the fall
of the DK regime at the urging of the PRK government. The
lapse of time is one reason why such evidence may be given
less weight. In addition, some analysts believe that the PRK
regime exerted pressure on Cambodians to record their experiences for the PRK’s use as a political tool. This may cause
some judges to view the documents as less reliable.
In criminal trials, the reliability of documents will often
be supplemented by lay or expert witness testimony. A witness who testifies under oath about direct evidence or the circumstances of a crime may be able to corroborate the information in a document, or to provide the court with valuable
information not supplied elsewhere. For example, witness testimony at the tribunal will be particularly valuable in proving
the structure of the DK regime, since much of that documentary information was destroyed or lost. There are different evi95
dentiary issues associated with each type of witness.
Eyewitness testimony can often be considered less reliable
due to the passage of time and the failings of human memory.
The reliability of witness testimony will be undermined by the
fact that nearly 30 years have passed since the Khmer Rouge
era. In addition, witnesses often desire a particular outcome for
the trial that can influence their depiction of past events, consciously or not. The crimes during the Khmer Rouge period
were so widespread and devastating that many witnesses are
likely to want a conviction. To the extent that this testimony
includes inaccuracies, some can be corrected through crossexamination, a process that enables the lawyer for the opposing
side to test the witness’s credibility and truthfulness. However,
the prosecution is unlikely to find many witnesses who do not
raise at least some concerns of reliability.
One of the main reliability issues that arises in the context of witness testimony is hearsay—a statement made outside a court of law to prove the truth of the matter asserted.
Hearsay is normally excluded in common-law courts, because
it denies the opposing party the chance to cross-examine the
person who made the statement, and such statements might
unfairly bias a jury. Civil-law systems do not categorically bar
hearsay, but usually admit the statement under the assumption that a professional judge will accord it less weight than
other evidence. Historically, international tribunals have also
admitted hearsay evidence under the standards of the civillaw system. It is widely expected that the Khmer Rouge
Tribunal will follow the example of other international tribunals on admitting hearsay evidence, especially because
Cambodia’s system allows it. Additionally, practical reasons
favor the admissibility of hearsay in the context of this tribunal because it may be impossible to call the person who made
the statement into court due to logistics and expense of travel, or due to the person’s death or disappearance in the thirty
years since the Khmer Rouge regime.
Hearsay evidence is likely to figure prominently in the
Khmer Rouge tribunal because of the particular types of evidence that have been gathered thus far against senior members of the DK regime. Personal statements made by survivors of the Khmer Rouge atrocities contain valuable information that prosecutors might seek to use in identifying victims, witnesses, and perpetrators. These statements are
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hearsay because they were not made in a court of law under
penalty of perjury. As discussed above, they will likely be
admitted in the tribunal even if their authors are unable to
testify in court to support the statements’ credibility. But the
cost of admitting hearsay evidence at trial is that it may be
accorded less weight by judges, who may treat uncorroborated statements as less credible than other forms of evidence.
Thousands of hearsay statements may therefore have the
equivalent probative value of a single credible document.
The use of expert witnesses to corroborate information in
documents may correct some of the reliability problems associated with admitting hearsay. Expert witnesses—including,
but not limited to, scholars of the history of Democratic
Kampuchea, forensic analysts, and handwriting experts—
will likely be called at the tribunal to offer their opinion on
the content or authenticity of a particular document. These
witnesses must meet certain standards of credibility before
being permitted to testify. Expert witnesses may state their
opinion about a particular piece of evidence, and given the
passage of time between the DK period and the tribunal,
experts may have vastly different opinions about the reliability of a piece of evidence.
Authentication of the Evidence
Authentication is the process of showing that the item
offered as evidence is actually what it purports to be. The
process is used with documentary evidence in order to prove
such facts as the identity of an author and the date when the
document was produced. In the Extraordinary Chambers, it
will be necessary to authenticate the documents offered to
prove that a Khmer Rouge cadre either knew of the atrocities
or ordered them to occur. The process may prove challenging
due to the age of the documents and the reality that many
authors who could testify to their authenticity have disappeared. There is no specific requirement in the ECCC Law as
to authenticity, but as with the ICTY and ICTR tribunals,
the tribunal will have the judicial authority to demand that
evidence be authenticated before it is admitted.
Some documents, such as newspaper articles, are generally considered self-authenticating because they are public documents from the moment of their creation. They therefore
could not have been easily fabricated, or later altered without
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leaving many other unaltered copies in circulation. Other
types of documents will need to be authenticated using either
direct or circumstantial evidence. The best method is for a
witness, either an expert analyst or the author of the writing,
to swear to the document’s authenticity in court. But some
documents, such as handwritten orders by Khmer Rouge officials, will be difficult to authenticate using testimonial evidence because the author may have died in the intervening
years. In such cases the document may be authenticated using
either physical analysis or proving the chain of custody.
One type of physical analysis is handwriting analysis,
either by an expert or by a personal acquaintance of the
author who is familiar enough with the handwriting of the
author to be able to verify it. The handwriting may also be
authenticated using circumstantial evidence, such as comparing it to another sample of the author’s writing. Other documents will be easier to authenticate through circumstantial
evidence because they bear distinctive markings, such as official letterhead or seals. Finally, forensic testing may provide
circumstantial evidence that corroborates the document’s
authenticity, such as the date that the document was produced, or evidence that refutes authenticity, such as signs the
document was subsequently tampered with.
Documents change hands many times from the moment
of their production to when they are used as evidence in trial.
Tracing a document’s chain of custody may provide circumstantial evidence of a document’s authenticity. Some documents produced by Khmer Rouge cadres have been traced
back to the DK period through transfer agreements and witness testimony. Many have been archived by various governmental and non-governmental organizations that are able to
testify about how they received them and what they have
done to protect them from tampering while in their custody.
Proving each step on the custody chain will likely only be
necessary for those documents that lack distinctive markings
of any kind, as most will be able to be verified by a combination of circumstantial evidence.
In summary, all evidence presented before the Khmer
Rouge Tribunal will likely need to meet the threshold requirements of relevance and probative value. In addition, if the piece
of evidence is a document, it will need to be authenticated. The
more reliable a given piece of evidence appears, the greater
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weight judges are likely to give it. Hearsay concerns will not
likely make a piece of evidence inadmissible, but they may
affect the weight of the evidence once it is admitted.
Rights of the Accused at Trial
As noted above, one of the most basic features of any set
of procedural rules is its establishment of rights for the
accused persons. These rights will apply during both the pretrial and trial phases of the proceedings. The ECCC Law contains the same language respecting the conduct of proceedings as that of other international tribunals: “The
Extraordinary Chambers of the trial court shall ensure that
trials are fair and expeditious and are conducted in accordance
with existing procedures in force, with full respect for the
rights of the accused and for the protection of victims and
witnesses.…” Generally, the rights of the accused in the
Khmer Rouge Tribunal reflect internationally recognized
standards for a fair trial.
As with the ICTY and ICTR, the rights of the accused in
the ECCC Law are modeled after Article 14 of the ICCPR.
There is a question about the availability of affirmative
defenses in the Khmer Rouge Tribunal, however. An affirmative defense serves as an admission of guilt while simultaneously explaining the circumstances under which the crime
was committed. A defendant pleads an affirmative defense in
hopes of persuading a decision-maker not to convict or to
mitigate the sentence. International law recognizes the general right of an accused to raise defenses to the charge that he
or she committed the crime. The most common affirmative
defenses in international tribunals—and those codified by the
ICC—include insanity, intoxication, self-defense, duress,
necessity, mistake, superior orders, and prescription of law.
The ECCC Law precludes a defendant from raising certain affirmative defenses to the domestic and international
crimes falling under the tribunal’s jurisdiction. Article 29 of
the ECCC Law, for instance, states: “The fact that a Suspect
acted pursuant to an order of the Government of Democratic
Kampuchea or of a superior shall not relieve the Suspect of
individual criminal responsibility.” Therefore, the defense of
superior orders will not be permitted as an affirmative
defense before the Extraordinary Chambers. This means that
a former Khmer Rouge official will not be able to secure
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acquittal by arguing that he knew a particular act was criminal but feared punishment for refusing to carry out an order.
That defense is normally rejected under international law for
particularly serious crimes, such as genocide or crimes against
humanity, but the statutes of the ICTY and ICTR do provide
that superior orders may be taken into account to mitigate a
convicted defendant’s punishment. The ECCC Law does not
provide explicitly for that possibility. Moreover, the language
of the ECCC Law suggests that such a defense might also be
rejected in the defense of domestic crimes, although the 1956
Cambodian Penal Code permitted the defense of superior
orders under certain circumstances.
The ECCC Law also does not detail when other affirmative defenses may be available to the defendants and how
exactly they may be used. Because Cambodian law has very
little jurisprudence on affirmative defenses, the judges may
need to consult international law for guidance when deciding
whether to accept or reject them.
Another important right protected by the ICCPR, and
adopted by the EC, is the right against self-incrimination. In
many domestic legal systems, this right includes the right to
remain silent during questioning by a judge or prosecutor.
Cambodian procedural law, however, places few limits on a
judge’s ability to question the accused before the prosecution
and defense present evidence. By allowing a judge to question
a defendant at that stage, a defendant can be forced to testify
against himself instead of invoking the right to silence. The
ECCC Law invokes the international standard by protecting
both the presumption of innocence and the right of accused
persons “not to be compelled to testify against themselves or
to confess guilt.” Thus, the protection of the right to silence
is one example where the ECCC judges must rely on the larger protections offered under international law—and now set
forth in the ECCC Law—rather than domestic law.
In addition, the ECCC Law appears to circumscribe the
right to counsel. Article 21 of the ECCC Law states that foreign counsel are bound to follow the rules of the Cambodian
Law on the Statutes of the Bar; those rules prohibit the independent practice of foreign attorneys in Cambodian courts.
The ECCC judges could read the provision in Article 13 of the
UN-RGC Agreement (“the right to engage counsel of his or
her own choosing as guaranteed by the International Covenant
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on Civil and Political Rights”) liberally and allow representation by a foreign lawyer regardless of Cambodian law.
However, the ECCC Law does not guarantee that the judges
will honor a defendant’s right to choose a foreign lawyer.
Most international tribunals and most domestic legal systems have created separate trial and sentencing phases. In
other words, the determination of guilt or innocence is made
before the defendant is asked to present an argument to mitigate his or her punishment, if indeed the defendant is found
guilty. This mechanism ensures that an accused person does
not have to present mitigating factors before he or she has
even been found guilty and protects the defendant’s right
against self-incrimination. Cambodian criminal procedure
conflates the two stages, however, and the ECCC Law is silent
on the matter. It is therefore likely that the Extraordinary
Chambers will combine these stages, arguably placing an
unnecessary burden on Khmer Rouge defendants and creating
incentives for them to present self-incriminating evidence in
the interest of mitigating their possible punishment.
Rights of Victims & Witnesses
In recent years, international law has begun creating special procedures for victim and witness care during a criminal
proceeding. This trend recognizes that a trial can potentially
re-open the trauma experienced by victims and witnesses during an atrocity. International tribunals established in the postCold War era have created special Victims and Witnesses
Units that recognize the special needs of children, the elderly,
persons with disabilities, and victims of sexual and genderbased violence. These tribunals have also incorporated protective measures, security, and trauma counseling for victims and
witnesses.
In keeping with this trend, the Khmer Rouge Tribunal
contains some provisions that recognize special needs of victims and witnesses. It also prevents the prosecution and
detention of witnesses and experts, or any restriction on their
freedom. Another provision creates a procedure whereby a
judge may view sensitive evidence out of public view in order
to protect the identity or safety of witnesses. Although these
are positive steps, a problem may surface with lack of coordination for victim and witness care. Unlike the coordinated
care unit in the ICC, the ECCC Law designates three
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offices—co-Investigating Judges, co-Prosecutors, and
judges—to share responsibility for their care, and the law
does not specify how they are to coordinate effective oversight. This lack of coordination poses a danger that the rights
of victims and witnesses will not be prioritized or adequately
addressed when the tribunal is convened. Victims and witnesses at the Khmer Rouge Tribunal will face a variety of
concerns, from the fear of reprisals by perpetrators to the retraumatization of testifying in court. Judges, lawyers, and tribunal staff will need to ensure the conduct of the investigation and proceedings does not further traumatize the victims,
put them at risk, or invade their privacy. The lack of protective measures and clearly defined roles will create a formidable challenge for the Extraordinary Chambers to effectively
coordinate victim and witness protection and care, especially
considering its available resources.
The Khmer Rouge Tribunal lacks resources for victim
outreach, thus non-governmental organizations will need to
take a leading role in ensuring that victims have an opportunity to attend and participate in the trials. Notably, the
Khmer Rouge Tribunal also lacks a mechanism for victim
compensation. The omission of reparations conflicts with the
growing trend in international law towards a victim-oriented
“restorative justice” model, illustrated by the creation of a
Victims Trust Fund under the ICC. As in other international
tribunals, the lack of funding for victim compensation in the
Extraordinary Chambers reflects real-world financial constraints, but it may jeopardize victims’ support for the tribunal. Under Cambodian law, a victim may file a separate civil
suit for compensation concurrently with the criminal prosecution, and nothing in the ECCC Law precludes this course
of action for victims. But the practical reality—the lack of a
victim trust fund in the ECCC Law itself—makes the possibility of individual victim compensation in the Khmer
Rouge Tribunal highly unlikely.
The Phase of Appeal
The preceding sections have described a variety of rights
of the parties at trial. The last of these is the right to appeal
a verdict of the trial chamber. The UN-RGC Agreement
allows any party to appeal a decision of the Trial Chamber to
the Supreme Court of the Extraordinary Chambers. The
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ECCC Law initially included an intermediate Appeals Court,
but it was eliminated in the final Agreement with the UN.
The Supreme Court will therefore serve as the only appellate
body, and its judgment will be final. This chamber will be
composed of seven judges, four Cambodians and three internationals. Like the trial chamber, a final decision from the
Supreme Court requires a super-majority vote of five judges,
ensuring that at least one international judge must cast a vote
with the majority.
In keeping with the tradition of civil-law countries, prosecutors and defendants may appeal errors of law or errors of
fact based on decisions of the Trial Chamber. Article 36 of the
ECCC Law allows for any error of fact or law to be appealed.
This provision is far more generous than the appeals provisions of the ICTY and ICTR, which allowed appeals only of
an error on a question of law “invalidating the decision” or an
error of fact that had “occasioned a miscarriage of justice.”
Because the Khmer Rouge Tribunal lacks restrictions in the
Statute on the Supreme Court’s ability to discriminate on the
issues it will accept on appeal, defendants and prosecutors
will be able to appeal any decision. Article 36 also permits
victims of the DK regime to appeal the Trial Chamber decisions without any restrictions. It is therefore quite likely that
delays could result in the appeals process if the Supreme
Court becomes backlogged with cases.
Conclusion
The importance of the rules of evidence and procedure in
criminal trials cannot be overstated. They are essential for
safeguarding the fundamental right to a fair trial, which in
turn ensures that convictions of human rights abusers are
viewed as legitimate. Rules of procedure protect the rights of
all involved in the process, from the accused to the victims
and witnesses. Though international criminal law lacks a
body of uniform rules of procedure, previous international
tribunals have fashioned general principles that regulate
every stage of the proceedings: the gathering of evidence during investigation, the presentation of evidence before the
chamber of judges, the judges’ decision-making and sentencing, and the appeals process.
Unlike statutes of other international tribunals such as
the ICTY and ICTR, the ECCC Law neither includes a sepa103
rate set of rules of procedure and evidence nor authorizes the
judges of the tribunal to formulate their own rules. Instead,
the Statute authorizes the judges to rely primarily on
Cambodian laws of criminal procedure and to turn to international law where necessary to fill in gaps and clarify inconsistencies. Rules of procedure and evidence may be drafted
prior to the convening of the tribunal. However, if they are
not, the task will fall on the Extraordinary Chambers to
ensure that the rules of evidence and procedure applied meet
international standards of fairness and justice.
Rules of evidence and procedure can help ensure that trials are fair, but they also make it more difficult to convict
alleged criminals. Cambodians may question the purpose of a
procedural regime that halts the rush to accountability for
former Khmer Rouge leaders, or at least provides for the possibility that some may not be convicted. A court without
rules of evidence and procedure may generate more convictions, but such convictions come at a huge cost. Lacking procedural rules, the Extraordinary Chambers would promote
arbitrary decision-making, opening it to criticism often
levied against the Cambodian legal system as a whole. This
would contradict the primary goal of the Khmer Rouge
Tribunal, which is to provide a long-term, lasting remedy for
the injustice in Cambodia’s recent past. The alternative—to
adopt rules of procedure and evidence that meet international standards—allows the tribunal to educate the Cambodian
judiciary on international standards for fair trials. This path
will lead to a competent and independent judiciary and
strengthen the rule of law in Cambodia.
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Ieng Sary
Ieng Sary and Khieu Samphan
106
4
Proving Khmer Rouge Abuses: Uses
and Limitations of the Available Evidence
Julia Fromholz
Evidence in a criminal trial provides the basis for a conviction or acquittal; it is the information a judge or jury uses
to determine whether the guilt of the accused defendant is
more or less likely. In the Khmer Rouge Tribunal, evidence
will constitute the body of information that judges review to
determine whether certain former leaders of Democratic
Kampuchea (DK) committed the acts—and possessed the
required mental states—to be held responsible for any or all
of the eight crimes discussed in Chapter 2. Evidence can
come in many forms, including documents, photographs,
physical items, and testimony of witnesses. The nature of the
events underlying any trial determines the types of evidence
available to the prosecution and defense, and the upcoming
Khmer Rouge process will be no exception. The length of
time that has elapsed since the Pol Pot era, the massive scale
of Khmer Rouge abuses, Cambodia’s limited economic and
technological development during that period, and the
opaque nature of the DK regime are each partly responsible
for the types of information that have survived to the present
day. While much evidence will be available to the
Extraordinary Chambers (ECCC), evidence of the commission
of certain crimes and evidence against certain defendants may
not be as plentiful as a prosecutor would like. Hence some
crimes will be easier to prove than others. Some defendants
will therefore be easier to convict than others.
Many types of evidence from numerous sources will be
available to the parties arguing before the Extraordinary
Chambers. Most of the evidence will be in documentary
form, but some physical items, such as torture devices, and
some witness testimony will be available as well. Availability
of evidence does not necessarily mean it will be used, however. As in all courts, the judges of the Extraordinary Chambers
107
will have the discretion to decide which documents, items,
and testimony will be admitted in each case. As discussed in
Chapter 3, some evidence may be deemed untrustworthy,
overly prejudicial, or otherwise inadmissible and therefore
barred from use.
Much of the documentary evidence is currently stored at
the Documentation Center of Cambodia (DC-Cam) or in the
archives of the Tuol Sleng Genocide Museum. Physical evidence is spread across the country, and witnesses who could
testify are located throughout Cambodia and abroad.
Gathering all of the information that could be used as evidence will be one of the principal challenges faced by both
the prosecution and defense teams.
Types of Potential Evidentiary Material
The Extraordinary Chambers will have at its disposal several forms of information that can potentially be used as evidence. During the many years that have passed since the commission of the alleged crimes, a large number of potential
witnesses have died or relocated. Finding those who escaped
the country during the turbulent years surrounding Khmer
Rouge rule will be difficult in most cases, given poor public
record-keeping in Cambodia’s rural areas and the broad diaspora overseas. Even some witnesses who are still alive and can
be located may have forgotten important details of the events
in question. Others will doubtless be afraid to share certain
information about the Khmer Rouge for fear of reprisal,
while people who suffered grave trauma may find it emotionally difficult to relive the terror of the past. Witness testimony, which has been widely used in other international tribunals, therefore may not be the strongest source of evidence
for the tribunal.
Documents are instead likely to be the form of evidence
most readily available to the Extraordinary Chambers. While
thousands of pages of documents exist, they are probably only
a fraction of the documents created by Khmer Rouge officials
and cadres. Not only has the passage of time led to the degradation or destruction of some documents, but the leadership
of the DK regime was also very secretive and ordered the
burning of many documents as Cambodian rebels and allied
Vietnamese military forces approached Phnom Penh in
December 1978 and the first week of 1979. In addition, the
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political instability of the country in the years following the
fall of the Khmer Rouge regime meant that documents from
that era were not preserved at their original sites. Rather,
many were scattered across the country or destroyed. Because
of the secrecy of the DK regime and the degradation and
destruction of documents over time, the chances that many
“smoking-gun” documents exist are relatively low. Instead,
the criminal cases before the tribunal will be built by
painstakingly and gradually assembling many pieces of evidence, which together may prove or disprove critical alleged
facts in each case.
The documents available at DC-Cam and Tuol Sleng can
be separated into two categories, differentiated by the date of
their origin. The first category comprises documents created
during the era of the DK regime. These include documents
written by Khmer Rouge officials and cadres, confessions of
prisoners in DK prisons, and various documents from foreign
countries. The second category is composed of documents
created after the fall of the Khmer Rouge regime. Documents
from these years come from many sources: petitions submitted by Cambodian and Vietnamese citizens, interviews by
scholars and journalists of survivors of the DK era as well as
high-ranking officials of the regime, and DC-Cam’s maps
showing locations of mass graves, skeletal remains, former
DK prisons, and genocide memorials.
Evidence from the DK Era
Documents created during the time the DK regime held
power will be some of the richest sources of evidence for the
Khmer Rouge Tribunal. A significant amount of correspondence among Communist Party of Kampuchea (CPK) personnel from the 1975 to 1979 period still exists. This correspondence consists primarily of communications between superiors
and subordinates within the CPK. The category of DK era
documents also includes confession transcripts. Many of these
confessions were extracted from prisoners at Tuol Sleng,
though some came from other prisons or detention centers.
Some of these confession reports include handwritten notes in
the margins that can be traced to high-ranking CPK officials
such as Security Chief Kaing Guek Eav (alias Duch). Minutes
and reports from DK political and military committees also
exist, as do a few public proclamations made by high-ranking
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members of the regime. Biographies of CPK prisoners, written as the prisoners entered S-21 and some other detention
facilities, as well as biographies of CPK party members, written when each member joined the party, have also been preserved and may prove helpful to the tribunal. Finally, the
notebooks and diaries of approximately 520 CPK cadres, soldiers, and other officials exist and are also stored at DC-Cam.
Media materials, including original copies of DK magazines, comprise a further type of evidence. In addition to publishing a variety of magazines, the CPK, with the assistance of
Chinese advisors, created films and instructional videos.
Approximately ninety-five such items exist and are currently
being restored in France. Six relevant films created by the sympathetic East German government exist as well and are stored
at DC-Cam. Finally, some foreign documents relevant to the
crimes committed during the DK era are also available. These
documents include reports signed by CPK officials and either
Chinese or Vietnamese government officials regarding commercial deals between Democratic Kampuchea and those countries.
Post-DK Era Evidence
Documents created after the fall of the DK regime may
also be helpful in adjudicating cases in the Extraordinary
Chambers. Defense attorneys may challenge many of these
documents, however, arguing that they are unreliable due
either to political bias or to the deficient memories of their
authors. Survivor petitions comprise the first category of
post-DK era documents available. These petitions were written to chronicle the abuses of the Khmer Rouge and contain
detailed biographical information about the petitioners,
including their accounts of life under the CPK. Officials of
the People’s Republic of Kampuchea (PRK) government collected over one million such petitions from Cambodian citizens in the early 1980s. In addition, Vietnamese citizens who
lost family members in Democratic Kampuchea submitted
29 petitions. DC-Cam collected and preserved the vast
majority of those documents. Other petitions that were submitted through international bodies and human rights
NGOs should be available to the Extraordinary Chambers as
well. All such petitions, however, may be considered prejudicial to the defense for several reasons. They were not written
under penalty of perjury, and they were written months, if
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not years, after the events at issue. Perhaps more important,
they were drafted at the instigation of ’PRK officials in the
context of heated political and military conflict. Since they
were written in part to support the government that succeeded the CPK, they may be deemed too biased to be afforded
significant weight in the prospective tribunal.
Another source of documents is the 1979 Popular
Revolutionary Tribunal, which purported to sit in judgment
on the “Pol Pot-Ieng Sary clique.” Documents including witness statements, reports from PRK criminal investigators,
and excerpts from CPK documents, all used as evidence in
the 1979 tribunal, are available. Also available are accounts of
the 1979 tribunal from foreign media sources, records of the
trial proceedings, and records of the verdicts. As described in
Chapter 3, however, the PRK government made clear from
the start of the trial that the defendants were presumed to be
guilty. Consequently, the defense will likely challenge most
of these documents—particularly those written expressly for
the Tribunal—on the grounds that they are biased and unreliable. Consequently, they may not carry great weight before
the Extraordinary Chambers.
A third group of post-1979 documents comes from interviews of DK survivors by scholars, journalists, and DC-Cam
staff. The transcripts of those interviews—with victims of the
DK regime as well as former officials and lower-ranking
cadres of that regime—may be useful to the Extraordinary
Chambers. It should be kept in mind, however, that the
interviews were not given under penalty of perjury. Many also
took place many years after the events in question, and their
reliability may be affected by degraded memories.
The last major category of available documents created
after the fall of the DK regime consists of mapping reports of
mass burial pits, skeletal remains, and prisons or detention
facilities apparently dating from the DK era. With the help
of technical experts and the use of GPS technology, DC-Cam
has created maps of more than 19,440 mass graves, numerous
skeletal remains, 185 detention facilities, and 77 genocide
memorials throughout the country. These maps and other
information about the location of physical evidence may be
useful evidence for the Khmer Rouge Tribunal in establishing certain facts that cannot be gleaned easily from the large
number of documents described above.
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Limitations of the Available Evidence
In order to be used at trial to prove an element of a
crime—that is, in order to be used as evidence—a document
or item must be admitted by a judge. As described in
Chapter 3, in deciding whether a particular document or
item is admissible as evidence, a judge will consider whether
it is relevant and probative. Once a document or item is
admitted, a tribunal must decide on the correct interpretation of that information. The prosecutors and defense lawyers
in the Extraordinary Chambers will each try to convince the
judges that a particular interpretation is correct, in order to
support their respective arguments for guilt or innocence. A
unique interpretation problem faced by the tribunal will be
the need to decipher the coded language widely used by the
DK regime in written and oral statements. The Khmers
Rouges gave known words new meanings, so the ECCC
judges must determine exactly what those meanings were to
make sense of the documents and witness testimony presented as evidence. Confessions also present a special challenge to
any court, as they may not be deemed reliable if extracted
under torture.
Interpretation of Coded Language
Any document admitted by a court as evidence must be
interpreted by that court to determine its probative value as
well as the weight it should be given. Documents from the
DK era present a special problem of interpretation because of
the regime’s extensive use of coded language. Such language,
in which certain words were given meanings different from
their traditional definitions, obscures to outsiders the true
meaning of words, sentences, and even entire documents.
This is particularly true of documents written by the CPK,
but to a lesser extent it is also true of documents reporting on
the regime. It is critically important that these documents be
decoded and fully understood, because CPK documents are
perhaps the most valuable sources of evidence against the
defendants likely to be tried in front of the Extraordinary
Chambers. Once decoded, these documents, which include
reports on activities of particular CPK cadres, may help
establish the CPK’s policies, its chain of command, and states
of mind of individual defendants.
Much of the CPK’s coded language seems to relate to
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killing and torture, and perhaps to other methods of inflicting pain and punishment as well. For example, an extensive
scholarly analysis of uses of the word kâmtech (“smash”) suggests that it is synonymous with “kill.” The words sâmroet
sâmrang (“screen”) and bâh sâm-at (“sweep” or “sweep away”),
however, have vaguer meanings. The actions described by
those words may include killing, but they also seem to
include other activities such as purging non-CPK officials
from public office as well as authorizing, but not carrying
out, killings. The terms khmang (“enemies”), chun k’bât (“traitors”), and samasapheap meun lâ (“no-good elements”) are also
widely used in CPK documents. According to scholars, the
term “enemies” referred to people viewed as political adversaries, a category that included Vietnamese people in general. "Traitors" was a label for enemies inside the CPK as well
as forces regarded as imperialist. The term “no-good elements” likely referred also to internal party enemies, similar
to “traitors.” The interpretation of these three terms will be
particularly important in building cases of genocide and
crimes against humanity. If the terms were defined to refer to
members of protected groups, and if the use of the terms then
resulted in proscribed acts being committed intentionally
against members of those groups, the prosecutors might use
them to strengthen their cases against the defendants for the
crimes of genocide and crimes against humanity.
The CPK also used code words to conceal the identities of
officers and cadres of the regime. For example, documents
were usually signed with and addressed to office names or
institutional entities rather than individual officers or cadres.
For example, missives were addressed to Angkar (“the
Organization”) rather than to individual high-ranking officials of the regime, or to Office S-21 rather than to Duch,
who ran that prison and torture center. “Office 870” (office of
the CPK Central Committee) was another frequently used
code name, and others such as “Office 560” and “Office 401”
appeared in communications as well.
Defense teams will likely claim that these code names
make it impossible to pin criminal liability on their clients, as
those defendants are not specifically named in documents that
show knowledge or authorization of crimes. Furthermore,
defense lawyers may argue that the court cannot impute
knowledge to an individual based solely on his association
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with a group. Decoding the names of offices and terms such as
Angkar—and thereby showing that those words consistently
referred to particular individuals or groups of officers—will
therefore be critical to the prosecution’s ability to show that
high-ranking officials knew about or authorized the crimes
being committed by lower-ranking cadres.
High-ranking Khmer Rouge officials, including but not
limited to those to be tried by the Extraordinary Chambers,
further camouflaged their true identities by using multiple
aliases and by changing those aliases with some frequency.
This will pose a challenge to the prosecution similar to that
posed by the coded office names. If expert opinions of scholars
are admissible, however, the prosecutors’ task with respect to
the aliases should be straightforward. There is a relative consensus among experts on the identity of the individual behind
the most common aliases of CPK leaders. For example, “Pol
Pot” is widely known to have referred to Saloth Sar, also commonly known as “Brother Number One.” Kim Trang was
known as “Ieng Sary” or “Van.” Finally, “Nuon Chea” and
“Brother Number Two” were aliases for the same person.
The ECCC will have several means at its disposal to decipher certain words used by the CPK, but a single, consistent
translation method may be difficult to develop. High-ranking officials of the DK regime would likely be the best
sources of decoding information, but those being tried by the
Extraordinary Chambers cannot be compelled to testify.
Unless one or more of the defendants chooses—or is persuaded—to testify, their knowledge is likely to be unavailable to
the court. Several experts have analyzed the CPK’s coded language at length, relying on etymology, interview transcripts,
and other documentary clues. The testimony of those experts
should be available and will help elucidate the meanings of
the words at issue. The court may also find further assistance
in interview transcripts and CPK documents themselves.
Admissibility and Use of Forced Confessions
One rich source of information for the Extraordinary
Chambers, particularly regarding the CPK’s policies and
chain of command, is the collection of confessions extracted
by Khmer Rouge interrogators from thousands of low-ranking cadres, purged officials, and their families. The transcripts of these confessions shed light not only on the policies
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and command structures of the CPK but also on some of the
crimes committed by the Khmers Rouges. They are therefore
likely to be of significant assistance to the investigators and
prosecutors in building their cases against high-ranking officials. Under some circumstances, however, the transcripts
may not be admissible.
While confessions may in some cases be used as evidence,
the means and circumstances under which they were extracted may determine their admissibility, weight, and use.
International law generally prohibits the use of confessions
extracted under torture as evidence against the confessor.
Using confessions in such a way would present serious moral
and ethical problems, such as rewarding torturers for inflicting pain in order to elicit information. Furthermore, the
truth of confessions extracted under torture is highly suspect,
throwing into question their probative value against the confessor and others implicated by the confession. For these reasons, the Convention Against Torture, the ICC Statute, and
the Rules of Procedure for the ICTY and ICTR bar the use of
such confessions against confessors.
The Convention Against Torture, however, makes an
exception to the rule barring the use of confessions extracted
under torture. Such confessions may be used to establish the
fact that torture—and perhaps other crimes—occurred. If the
facts surrounding a confession establish that it was extracted
under torture, the confession transcript might be admissible
to prove that substantive crimes such as torture occurred.
Using such transcripts from the DK era against high-ranking
CPK officials therefore would not pose the admissibility
problems that would arise if the transcripts were used against
the confessors themselves. Confessions were used by the CPK
as a key element in the implementation of the very policies
on which some of the tribunal’s criminal charges will be
based. Particularly during purges of the CPK ranks, when the
regime acted on suspicions that it had been infiltrated by
enemies, cadres suspected of being “traitors” were often interrogated under torture. One of the purposes of the interrogation was to elicit information on the identity of other suspected “traitors” in the CPK. After lists of other “traitors”
were extracted, the confessors were routinely killed.
Confessions were therefore central to the implementation of
the CPK’s murderous policies. Transcripts of those confes115
sions may therefore be admissible in court as evidence of
those policies, against high-ranking officials accused of
designing them. In addition, they may be helpful to investigators and prosecutors by leading to other sources of potentially admissible information.
Potential Uses for the Available Evidence:
Building Cases against Particular Individuals
While a great deal of evidence of Khmer Rouge abuses is
available, the amount and strength of that evidence vary by
defendant and by crime. To demonstrate how certain pieces of
the available evidence might be used to build cases against
particular individuals and to highlight some of the strongest
and weakest areas of evidence, this section reviews some of
the potential evidence against each of three possible defendants, each for a different crime likely to be charged by the
Khmer Rouge Tribunal. These examples illustrate some of
the strongest information likely to be available to prosecutors. They also show some of the limits of the potential evidence that is currently available, thus providing an indication
of areas in which defense counsel could be most successful in
securing acquittals.
Many observers anticipate that the Extraordinary
Chambers will try the following former Khmer Rouge officials: Nuon Chea, Ieng Sary, Khieu Samphan, Sou Met, Meah
Mut, and Duch. Only Duch is in custody. Three other officials whose actions during the DK period certainly would
have warranted their inclusion on that list—Pol Pot, Ta Mok,
and Kae Pok—died during the last decade without being
brought to justice.
Nuon Chea was Deputy Secretary of the CPK Central
Committee and strong evidence suggests that in that position
he would have played a key role in developing and implementing the CPK’s execution policies. He was ultimately
responsible for S-21, commonly known as Tuol Sleng. Ieng
Sary was a member of the CPK Central and Standing
Committees and was Deputy Prime Minister for Foreign
Affairs. According to some reports, Ieng Sary publicly encouraged arrests and executions of employees of his ministry as
well as of people throughout the country. Khieu Samphan was
a member of the Central Committee as well as the DK State
Presidium Chairman. Some allege that Khieu Samphan was
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not only aware of CPK policies aimed at arresting, torturing,
and killing purported enemy agents, but he also helped
implement these policies in at least some instances.
Sou Met was the chairman of a CPK military division and
is supposedly responsible for the arrests of soldiers from that
division. He was allegedly involved in transferring those soldiers to S-21 for execution. Meah Mut was the chairman of
another military division and was allegedly involved in crimes
similar to those in which Sou Met was supposedly implicated.
Duch was chairman of Office S-21, where thousands of people
were detained and tortured before being executed.
The examples below illustrate some of the evidence available for the prosecution of particular individuals for particular crimes. By reflecting the sorts and depth of evidence available, they highlight some of the difficulties prosecutors will
face in trying to prove certain crimes. The example of the case
against Duch for torture is useful not only to show the
breadth of evidence available to prove that crime but also to
underscore the difficulties prosecutors will face in other cases.
The case of crimes against humanity against Nuon Chea
exemplifies cases in which some evidence exists but where the
prosecution may still face serious challenges in proving their
case. The third example, the case of genocide against Ieng
Sary, highlights the dearth of currently available evidence to
make this case.
One preliminary issue that the tribunal will have to face is
that of superior responsibility, because the tribunal’s mandate
is to try only those most responsible for the crimes of the DK
regime. Those former high-ranking CPK officials are unlikely
to have carried out killings and torture themselves, so convicting them of such crimes will depend on showing that they contributed to the commission of the crime or had superior
responsibility for crimes carried out by subordinates.
As discussed in Chapter 2, a person has individual responsibility for a crime when he knowingly contributed to the
crime in question. That contribution includes ordering criminal conduct, aiding and abetting the commission of the crime,
and, in some cases, acting with a purpose or design common to
others who carried out the criminal act. A person has superior
responsibility for a crime if he knew or should have known of
criminal activity but failed to prevent or punish that activity as
committed by individuals under his authority and control.
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Example #1: Trying Duch for Torture
Perhaps the easiest case for the prosecutors to make will
be to claim that Duch, former Security Chief of the notorious
Tuol Sleng Prison, was guilty of torture. As described in
Chapter 2, the ECCC Law defines the crime of torture to
include three elements: (1) the intentional infliction of severe
mental or physical suffering on a victim, either (2) to extract
a confession or (3) as a form of punishment or intimidation.
Evidence suggesting that Duch committed torture
abounds. As CPK Security Chief, Duch ran the notorious
prison and torture center known as Office S-21 or Tuol Sleng.
He was among the highest-ranking officials of the CPK; he
was almost unquestionably deeply involved in the program of
torture and murder carried out at S-21; and he both received
reports on the implementation of that program and sent
reports on the same topic to his superiors. Duch is implicated
in the torture carried out at S-21 not only by a variety of documents, but also by his own post-1979 confessions. Because of
this plentiful evidence, proving this crime should be one of
the least challenging tasks facing the ECCC prosecutors.
Furthermore, the evidence may be used to establish that Duch
bears both direct and superior responsibility for torture carried
out at S-21. The evidence not only suggests that he ordered
torture to be performed, but also that he failed to mete out
punishment for or stop torture carried out by subordinates,
whether or not it was carried out upon his command.
The first element of the crime of torture requires that
severe mental or physical suffering be inflicted intentionally.
Evidence is available to establish that Duch was directly
responsible for such intentional infliction of pain. Duch himself provided much of this evidence, as he confessed to many
crimes—and also laid significant blame on others—in interviews with the journalist Nate Thayer. Duch’s apparent motivation for confessing in these interviews was his conversion to
Christianity in the early 1990s, which spurred him to seek
absolution for his sins. In these interviews, Duch asserted
that Nuon Chea and Son Sen frequently ordered him to torture and kill prisoners at S-21. Duch also admitted to ordering torture, as well as to carrying out such actions himself.
He explained to Thayer his use of “psychology” to convince
detainees that they would not be killed if they confessed
truthfully. Duch stated that combining these psychological
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tactics with torture was the most successful way to elicit
information. While Duch explicitly admitted his involvement in torture at S-21, he did not do so in a court of law. As
discussed in Chapter 3, in order for the confession to bear
weight, therefore, the prosecutor may seek to introduce the
transcripts of those interviews as evidence or may call Duch
and Nate Thayer as witnesses. Given the abundance of evidence and the unrestrained nature of Duch’s confessions to
Thayer, it seems likely that at least some compelling evidence
of Duch’s confession will be available to prosecutors.
In addition to admitting to his involvement years after the
fact, Duch put into writing at the time some orders to his subordinates to carry out torture. If the handwriting and underlying documents are authenticated, as described in Chapter 3,
they will be useful pieces of corroborating evidence in building
the torture case against Duch. For example, on the transcript of
one confession extracted at S-21, Duch wrote “[R]esume carrying out torture” and signed his name to the note. Another note
hand-written by Duch directs his subordinates to “use the hot
method, even if it kills him, it is OK.” Scholars have concluded that the “hot method” refers to torture, while the “cold
method” was the name for interrogation without torture. The
acknowledgement that a certain “method” could lead to death
certainly suggests that the method would cause severe pain
whether or not death resulted. And the context given by the
note also makes plain the existence of the requisite intent. If
these documents are authenticated, they will be quite difficult
for the defense to challenge.
It is also alleged that Duch bears superior responsibility
for torture committed by subordinates at S-21, as he knew of
it—even if it cannot be shown that he ordered particular
instances of it—and there is no evidence that he punished or
stopped its commission. Because Duch oversaw S-21, evidence
that torture was routinely committed there will also be useful
in a case against him even if the evidence does not clearly show
that he ordered every instance of torture. Certain pieces of evidence can be used to establish that he knew or should have
known that his subordinates routinely engaged in torture of
detainees. For example, Duch’s Chief Interrogator at S-21 kept
a personal notebook in which he recorded principles of torture, such as: “Break them with propaganda or break them
with torture, but don’t let them die. Don’t let them get so fee119
ble you’re unable to question them.”
An S-21 study notebook from 1976 also exists, and it sets
out a seven-point procedure to be used in interrogations. That
procedure included torturing prisoners, extracting information, and pressuring detainees with political propaganda. A
1976 letter to Duch from an S-21 interrogator states that
Angkar issued instructions to torture a particular prisoner, and
that “We began to torture him with about 20 to 30 lashes in
the morning. At the evening, we tortured him with about 20
to 30 (wire) lashes... [He] began to make an oral confession,
which has the same meaning as his written text.” References
to wire lashes strongly suggest that severe physical pain was
inflicted on this victim. The context given in the report—that
the torture was inflicted on the instruction of Angkar—clearly indicates that the infliction of pain was intentional.
Prosecutors may use these reports to demonstrate that
Duch knew, or at the very least had reason to know, of the torture being committed by those reporting to him. Barring the
existence of evidence—of which there are no indications—
showing that Duch prevented further such torture or punished the torture described in the letter and notebook, these
documents could be used to show that he had superior
responsibility for the specific instances of torture discussed.
These documented references to the intentional infliction
of pain can also be corroborated or underscored in court by
the descriptions in DC-Cam’s mapping reports of the locations of torture devices that remain in former detention centers. Those descriptions or the devices themselves, if the court
deemed them reliable, could also be used to further build a
case against Duch.
The second and third elements of the crime of torture are
alternatives, so in order to build a case for torture, it is necessary to establish one but not both. The second element
requires that the physical or mental suffering of the first element be inflicted in order to extract a confession. In building
a case against Duch, one document that could help establish
the second element is a confession report from Office S-21 in
which an interrogator stated:
We pressed [the victim] on a point that the prisoner
lived with traitors. When constantly pressed to
answer on this point, he refused to say, and we car120
ried out some torturing. Then he confessed he was a
traitor. After he so confessed, I asked for a traitorous network, also about their plans and activities.
As he was still unclear in his answers to this point,
we further tortured him, and then he spoke out.
The interrogator makes clear that he and others used torture for the very purpose of extracting “clearer” answers from
the victim, thus establishing the second element of the crime.
The statement discussed above, which the chief interrogator
of S-21 wrote in his personal notebook—”Break them with
propaganda or break them with torture, but don’t let them
die. Don’t let them get so feeble you’re unable to question
them”—would also be helpful in establishing that the purpose of the physical pain inflicted was to extract confessions.
The moral and legal issues discussed above regarding the
use of forced confessions as evidence pertain to the second element of torture. But as discussed, the use of those transcripts
to prove that the torture itself took place would likely be
acceptable to a court, and they would therefore help establish
the second element, as they corroborate claims that confessions were in fact extracted through the infliction of pain.
The third element of the crime of torture, which can be
proven instead of the second, requires that the infliction of
pain be carried out as a form of punishment or intimidation.
The document referring to the “hot method,” discussed above
in the context of the first element, could also be used to
establish the third element of the crime of torture. That
hand-written note refers to the use of the “hot method” on
one “uncooperative” prisoner, indicating that the method of
torture was to be used in order to make the prisoner cooperative—in other words, to intimidate him into cooperation.
Witness testimony supporting each of the elements of
torture may be available to corroborate the documentary evidence. A few of the former S-21 guards who are still alive
publicly discussed their treatment of prisoners in the film
S-21: The Khmer Rouge Killing Machine by Rithy Panh. Nine
former S-21 prisoners survived the prison and some of them
took part in the film as well. While the interviews in the film
may not be admissible in the Khmer Rouge Tribunal, the
guards and survivors shown therein, as well as others, may be
available to testify in court.
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Example #2: Charging Crimes Against Humanity
Examples of evidence that can be used to prove crimes
against humanity illustrate a middle range of cases likely to
be seen in the Extraordinary Chambers, in which strong evidence against particular individuals is available but not necessarily overwhelming or perfectly clear. To summarize the
description given in Chapter 2, certain acts including murder, enslavement, deportation, imprisonment, torture, rape,
persecution, and other “inhuman acts” may constitute crimes
against humanity if those acts were part of a “widespread or
systematic” attack on a civilian population on ethnic, racial,
national, or political grounds.
Widespread Attacks
Abundant evidence that the crimes of the DK regime
were committed across the entire country will be available to
the EC. For example, CPK correspondence, confession and
interview transcripts, and maps of mass graves, prisons, and
torture centers all contain information reflecting the vast
geographic scope of DK crimes. The example of Nuon Chea
elucidates the possible uses of particular pieces of evidence in
building a case for crimes against humanity.
Available evidence can be used to show that Nuon had
knowledge of the CPK’s policies of execution, which applied
across the country. Nuon’s position as deputy secretary of the
CPK’s Central Committee and a member of the Standing
Committee of the CPK made him one of the highest-ranking
officials in the regime. Evidence strongly suggests that in that
role, Nuon was one of the leaders in devising and implementing the DK regime’s extermination policies. Transcripts of
post-1979 interviews with Duch, who ran S-21 from 1976 to
1978, can be used as evidence to show Nuon’s extensive
involvement in and leadership of the implementation of those
policies. For example, Duch has stated in interviews with
Nate Thayer that Nuon played a central role in implementing
massive purges of CPK ranks across the country. Duch stated
that Nuon, Pol Pot, and Son Sen were the key decision-makers at the 1978 meeting at which the purge of the CPK East
Zone was decided. He further stated that Pol Pot directed the
search for “enemies within the Party” after 1975, but “he used
Nuon Chea to do the work” of massive arrests of CPK members in many zones. Duch also stated that Nuon Chea “direct122
ly ordered the killings” via Son Sen or Duch. Nuon allegedly
gave direct orders to Duch, about which Duch has spoken to
Nate Thayer, to kill specific officials and groups. For example,
Duch stated that Nuon ordered 300 KR soldiers arrested,
then commanded Duch, “Don’t bother to interrogate them—
just kill them.” Duch admitted to following that order.
Duch has also stated that Nuon demanded proof of the
execution of certain people. “For some people, Nuon Chea
wanted me to give him pictures of their dead bodies for proof.
He ordered me to bring pictures of dead bodies to his office.”
When one particular body was buried before being photographed, Nuon ordered Duch to “exhume the body of Von
Vet from the earth to take a picture of him dead because
Nuon Chea wanted proof he was killed.” Assuming that these
statements are admitted as evidence or that Duch gives similar testimony at trial, together they would help to establish
that Nuon had knowledge of murder and torture in at least
several zones, which likely is enough to implicate him in
widespread crimes.
The widespread implementation of the CPK’s murderous
policies is also reflected in the survivor petitions written after
the fall of the DK regime. For example, a survivor petition
written by a resident of Siem Reap province stated that the
Khmer Rouge executed sixty of his family members and
destroyed seventeen houses. A petition from Kandal province
recorded the Khmer Rouge’s execution of 128 people from
one village, noting that sixty-five of those killed were widows
and eight were children. Another petition written by a resident of Kandal province stated that 847 people in one village
were killed during the regime, leaving twenty-two people
disabled and thirty-six children orphaned. This writer listed
the ways the KR executed people: “They used many ways to
kill people such as using either hoe or wood, sawing through
the neck by palm stem, burying alive, punishing by electric
shock, pulling out the nails, using a tractor to run over, and
cutting open the stomach to get the lungs.” These survivor
petitions and other similar ones could be used to help establish that the KR committed crimes across Cambodia.
Systematic Attacks
In addition to showing that Nuon knew of crimes with a
broad geographic scope, the available evidence can be used to
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show that he knew of systematic offenses. The CPK policies
regarding former Lon Nol government officials resulted in
the systematic annihilation of that group, and its policies
regarding the functioning of S-21 and Choeung Ek led to the
systematic extermination of nearly every person who arrived
at either of those places. Documentary evidence can be used
to demonstrate that Nuon Chea was instrumental in devising
the policy towards Lon Nol officials, and it also tends to
demonstrate that he was at least aware of the S-21 and
Choeung Ek policies and their results.
The documentary evidence that can best demonstrate
Nuon Chea’s involvement in the systematic elimination of
Lon Nol officers are reports of a statement he made at the
1975 Party Congress. Three interviews by a leading
Cambodia scholar recount the orders by CPK leaders for their
subordinates to “execute” or “scatter” the remaining former
Lon Nol officials. To those orders, Nuon Chea added an
explanation: “We must get rid of former soldiers from the old
regime; they will not change their ideas, so we have to smash
them all.” In the same vein, the confession of the former West
Zone Secretary states that in 1976 Nuon Chea visited him
and told him to execute all former Khmer Republic soldiers
in his district, “because it was not easy for them to abandon
their old ideas.” These interview transcripts and confession
strongly indicate that Nuon Chea led the implementation of
the policy of systematic murder of Lon Nol officials, and they
would therefore be effective pieces of evidence in the case
against him.
The transcripts of Nate Thayer’s interviews with Duch
provide useful evidence in implicating him in the systematic
torture and killings undertaken at S-21. According to Duch,
Nuon often ordered killings. As noted above, Duch stated that
Nuon Chea ordered him to provide proof of certain S-21 executions by “order[ing him] to bring pictures of dead bodies to
his office.” These transcripts provide important evidence
implicating Nuon the systematic abuses that occurred at S-21.
Intent to Attack Protected Groups
As discussed in Chapter 2, in order to prove crimes
against humanity, prosecutors must demonstrate that the act
was committed against a protected group. They may also
need to show that the attack was undertaken with a discrim124
inatory intent based on racial, national, ethnic, or political
grounds. There is ample evidence that the Khmers Rouges
committed crimes based on political grounds. Two pieces of
evidence already discussed also show that Nuon Chea was
motivated by a discriminatory intent on political grounds.
First is his statement at the 1975 Party Congress. To order
the killing of former officials or soldiers of the Lon Nol
regime based on their unwillingness to “change their ideas”
is to base the reason for murder on the politics of the victims.
Second is his order to a subordinate to execute all former
Khmer Republic soldiers in the district because of their
inability to “change their ideas...” The executions thus
ordered are also clearly based on the politics of the victims.
Further evidence of such a basis for attacks would strengthen
the crimes against humanity case against Nuon Chea, but
while it may not be as straightforward as the case for torture
against Duch, it should not be an insurmountable challenge
for the ECCC prosecutors.
Recent interviews by DC-Cam staff with former cadres
also show that intent to eliminate sympathizers of the old
regime was the motivation for some of the crimes committed
by the CPK. One former cadre from Takeo province reported
that all those in his subdistrict who had held the rank of second lieutenant or higher in Lon Nol’s army were accused of
“having tendencies” and therefore executed. Former civil servants and soldiers of lower ranks, however, were reeducated.
Another former cadre, this one from Kompong Cham
province, stated that most executions took place at the district level. She stated that victims included Republican officers and their families as well as Republican soldiers. A third
former cadre reported that in her village, in Takeo province,
people whose biographies revealed relations with field and
general officers from the Lon Nol regime were taken away in
groups of ten or twenty and killed. Although these reports do
not implicate Nuon Chea individually, prosecutors might
argue that because he was a member of the CPK’s Central
Committee, he shared beliefs espoused by that body.
Example #3: Proving the Crime of Genocide
A third case example shows some of the difficulties the
prosecution will face in proving the culpability of senior
Khmer Rouge figures for the most celebrated of internation125
al crimes: genocide. The elements of the crime of genocide
are discussed in detail in Chapter 2. In brief, in order to prove
that crime, a prosecutor must establish that (1) a proscribed
act, such as killing or causing serious bodily injury, was committed (2) against a “national, ethnical, racial or religious”
group (3) with the intent to destroy that group in whole or
in part as such. Although the term “genocide” is routinely
used in reference to the crimes committed by the DK regime,
the crime will in fact be quite difficult to prove before the tribunal. Proof that the DK regime committed genocide of certain minorities—including the Cham, Buddhist monks, and
the Vietnamese—is likely strong enough to support convictions of at least some defendants. But finding sufficient evidence to establish the requisite intent with regard to Khmer
nationals in general will prove extremely difficult, if not
impossible. The narrow scope of the definition of “genocide”
under international law likely means that few, if any, defendants will be convicted of committing genocide against the
Khmer population at large.
The example of Ieng Sary highlights the paucity of evidence showing that the CPK acted with the genocidal intent
required by the Genocide Convention. Ieng was the CPK’s
Deputy Prime Minister for Foreign Affairs as well as a member
of the Party’s Central and Standing Committees. In those
capacities, it is alleged that he at least had reason to know of
the atrocities committed by the regime even if he did not also
play a part in planning and implementing those atrocities himself. Furthermore, many employees of his ministry were
detained and executed during purges of the Party. Ieng’s positions in the Party structure, combined with his apparent failure to stop or punish criminal acts committed by subordinates,
strongly suggest that he could be found to have superior
responsibility for a variety of crimes. Whether genocide is one
of those crimes, however, is a different and difficult question.
The crimes for which Ieng could likely be found to have
superior responsibility are varied and many. Evidence
abounds to show that he was quite aware of, and in fact supported and perhaps furthered, the murderous policies of the
CPK. Two illustrative examples of the abundant evidence
pertaining to crimes that underlie the crime of genocide are
public speeches Ieng made that show his awareness of such
crimes. On April 17, 1977, he commemorated the second
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anniversary of the fall of Phnom Penh to the CPK in a public speech. Ieng stated that “the enemy” had been attempting
“to destroy the fruits of [the CPK’s] victory.” To counter
those efforts, the “Cambodian people and Revolutionary
Army have smashed all the enemies’ tricks, crushed their spy
network and succeeded in preserving our national independence, sovereignty, territorial integrity and the sacred fruits of
revolution.” Later that year, Ieng spoke to the United
Nations General Assembly, stating that “enemies of all
stripes were seeking by every method to destroy” Democratic
Kampuchea, but that “all their attempts at . . . subversion”
had been “utterly crushed.” Because these speeches were
given during the time that the CPK was committing atrocities across Cambodia, they can be understood not just to
acknowledge but also to promote the policies behind those
crimes. These are but two examples from a mountain of evidence that Ieng knew of and participated in the planning of
various crimes committed by the CPK. Proving Ieng’s liability for the commission of acts underlying genocide therefore
should not be difficult.
A more challenging task will be proving that he—and
the CPK in general—had the mental state required for genocide while committing those acts. If Ieng committed certain
acts but did not carry them out in an effort to destroy a protected group in whole or in part, he cannot be convicted of
genocide. Convicting him and others of genocide of certain
minority groups will likely be easier than convicting any of
the CPK leaders of genocide of Khmer nationals in general.
Genocide Against Minority Groups
According to many scholars and survivors of the regime,
the Khmer Rouge singled out the Cham, Buddhist monks,
Vietnamese, and other ethnic minorities for particularly harsh
treatment. This was arguably in pursuit of the annihilation of
those groups as such. While it may be difficult to find evidence
establishing that DK officials targeted ethnic Khmers for
genocide, information more strongly suggests that DK officials
targeted the ethnic Vietnamese population for genocide.
Given the consistent nature of the attacks on people of
Vietnamese ethnicity, it is likely that all of the CPK leadership knew of the pattern of attacks. CPK propaganda reflects
the regime’s view of—and therefore arguably indicates the
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leaders’ policies towards—the Vietnamese. One piece of DK
propaganda referred to the Vietnamese as the regime’s most
“noxious and acute enemies,” while another stated that they
“stink to high heaven and are degradingly despised as nothing.” CPK directives show that the regime put this view into
murderous practice. These documents first state that the
Vietnamese were primary “enemies” of the revolution and
then command that all enemies were to be killed. The CPK
made quite public this plan for the Vietnamese in a Phnom
Penh Radio broadcast on May 10, 1978. “One of us must kill
thirty Vietnamese . . . . So far we have succeeded. . . . We need
only two million people to crush the fifty million Vietnamese,
and we would still have six million people left . . . .”
Given his position within the CPK leadership, Ieng must
have known of the regime’s view and policy toward the
Vietnamese. Because there is no indication that he took any
steps to prevent or punish the crimes committed against the
Vietnamese, it is likely that evidence such as that discussed
above will be sufficient to implicate him in genocide of this
minority group on the basis of his superior responsibility.
Genocide Against the Khmer Buddhist Majority
Genocide of Buddhist Khmer nationals will be among
the most difficult crimes to prove in the EC, whether of Ieng
Sary or of other defendants. The Khmer people do qualify as
a protected national group under the Convention’s definition
of genocide, as do adherents of the Buddhist faith. As discussed above, it is indisputable that the CPK committed
numerous horrific crimes, many of them among the crimes
underlying genocide, against Khmer nationals and against
Buddhists. The difficulty lies in proving that the CPK targeted members of the Khmer Buddhist majority in
Cambodia, which constituted roughly eighty percent of the
population, because of their membership in that group and
with intent to destroy that group in whole or in part.
Very little, if any, evidence showing such intent exists.
Instead, much evidence indicates that the murderous policies
aimed at Khmer nationals were driven by political concerns
or plain paranoia. The CPK sought to create a communist
state by purging those who were deemed to hold contrary
political beliefs. Reports sent to the Standing Committee, of
which Ieng Sary was a member, are examples of evidence
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reflecting this purely political motivation. Some of these
reports included requests for authorization of the execution of
people determined to be “enemies.” As discussed above, that
term typically referred to people regarded as political adversaries. As time passed, the CPK grew increasingly convinced
that it had been infiltrated, and its goals thwarted, by “enemies,” “traitors,” and the like. Ieng Sary’s speeches discussed
above are examples of evidence reflecting such paranoia.
Much similar evidence exists, but it will be extremely difficult for prosecutors to come up with evidence showing a
motivation to destroy Khmers as a group, by virtue of their
being members of that group.
Conclusion:
Why Certain Crimes are Difficult to Prove
The CPK committed crimes of an utterly horrific nature
across an entire country. The atrocities were so widespread
that the suffering touched virtually every Cambodian family.
Though the leaders of the CPK strove to operate in secrecy for
many years, their identity is now well known around the
world. For better or worse, the Khmer Rouge Tribunal will
sit in judgment only of certain of the highest-ranking or
most notorious officials of the CPK. It is not surprising that
this combination—widespread, horrific crimes committed by
a party led by a small and identifiable group of people who
were extremely powerful during their reign—leads people to
believe that many crimes must be easy to prove. The evidence, it would seem, is everywhere. Mass graves abound.
Survivors can testify to their suffering and perhaps to the
identity of those who directly caused it. Journalists and scholars possess records of interviews in which some of the very
defendants have admitted their culpability. Based on this evidence, the world presumes the guilt of many of those who
will be put on trial. But convictions are not that easy to come
by if the trials are adjudicated fairly and the accused afforded
their rights according to international standards. International law and the rules of the court impose requirements
and limitations that, in an effort to ensure consistency and
fairness, make the prosecutors’ task a challenging one.
Depending on the court system, the standards of admissibility of evidence can pose significant hurdles to establishing
criminal liability. As discussed in Chapter 3, the tribunal will
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likely use quite liberal admissibility standards, so much of the
available evidence will be eligible for use by the prosecutors.
As shown in this chapter, however, many critical points
depend on evidence such as expert testimony or documents
that might be considered hearsay. If such evidence is not
admitted, proving some of these crimes will be more difficult.
Another challenge in the path of the prosecutors is the
requirement that they prove intent. Every relevant crime consists of an action as well as a mental state, and convictions
depend on the prosecutor proving both. As discussed above,
the mental state required by the definition of genocide will
be a particularly difficult one to prove. That being said,
establishing any mental state can be challenging because
there is often little evidence of such abstractions. People commonly do not record or tell others why they do certain things,
so it is tempting—particularly when a particular act is well
known and widespread—to infer intent from an action.
However, it is always preferable from the prosecutors’ standpoint to rely on direct evidence where possible.
Finally, the definitions of crimes under international law
do not mirror the meanings of the same words as used in
common parlance. Some of the legal definitions that will be
used in the Extraordinary Chambers are more limited than
the ordinary usage, making the crimes they describe more
difficult to prove than the general public would imagine. The
case of genocide best illustrates this difficulty. While “genocide” is the label routinely applied to the activities of the
CPK, there may be little direct evidence establishing that
Khmer Rouge defendants possessed the requisite intent when
they carried out their abominable crimes.
The Extraordinary Chambers will have access to a great
deal of evidence, but the ECCC co-Prosecutors and coInvestigating Judges may wish to seek still more. While
Prosecutors may be able to secure convictions of certain
defendants on certain charges with the existing evidence, testimony from lay and expert witnesses could be used to fill in
gaps and strengthen some of the cases. But for some charges,
sufficient evidence simply may not exist. As unjust as it may
be in the face of vivid memories of widespread atrocities, the
way that genocide is defined in international law may make
it impossible to prove as to the Buddhist Khmer majority.
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Khieu Samphan
132 Minister of Defense, Ieng Sary and
From left to right: Son Sen, DK
Nuon Chea at Phnom Penh International Airport
5
Delivering Justice for the
Crimes of Democratic Kampuchea
Héleyn Uñac and Steven Liang
This chapter focuses on how the Khmer Rouge Tribunal
can fulfil its primary goal: securing justice for the victims of
Democratic Kampuchea (DK). The substantive laws, procedural rules, and evidentiary practices described in the preceding chapters are all part of a normative framework that can
help the tribunal meet that central objective. Sound laws and
procedures are critical, because providing justice to
Cambodians requires much more than convicting and punishing those found most responsible for the abuses of the DK
regime. Justice also requires that trials be fair. The rights of
all parties must be respected, even those accused of the most
heinous crimes. Only by setting an example of high legal
standards can the tribunal pave the way toward a more robust
rule of law in Cambodia.
The first section of this chapter examines the concept of
justice by breaking it down into its “retributive” and
“restorative” dimensions and discussing how each dimension
relates to the upcoming Khmer Rouge Tribunal. The second
section discusses how other international criminal processes
have dealt with the challenges of achieving justice for mass
human rights violations. The Extraordinary Chambers in the
Courts of Cambodia (ECCC) are part of a broader international movement to ensure justice for such crimes, and the
Khmer Rouge Tribunal will face many of the same dilemmas.
The third section focuses on the importance of fair trials in
providing a just result and an example for the future. The
next section considers how a just and fairly conducted tribunal process can help achieve broader moral, social, and political objectives in Cambodia. These goals include uncovering
the truth, challenging the culture of impunity, preventing
future crimes, and building the rule of law. The tribunal is a
critical part of a broader domestic process within Cambodia
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to build a more promising future and escape the shadows of
the past. The chapter thus concludes by examining the elements that must be present for a trial to be considered fair.
The Meaning of “Justice”
Justice is an abstract ideal that generally refers to the fair
and moral treatment of individuals and their communities. It
is a very difficult concept to define and is likely to mean very
different things to different survivors of Democratic
Kampuchea. The meanings that Cambodians and other interested observers attach to justice are critical, because they shape
public expectations of the tribunal. People who consider justice to be “an eye for an eye” hope the trials of former Khmer
Rouge leaders will deliver one result. Individuals who view
justice as economic equality hope for a different outcome.
Retributive and Restorative Justice
Two of the most common notions of justice that are relevant to a Cambodian accountability proceeding are known as
“retributive” and “restorative” justice. Retributive justice focuses on individual criminal acts and on punishing criminal
offenders. The moral logic behind retributive justice is simple: the offender has committed a social harm, and he or she
must therefore be punished with an equivalent or proportional harm. Retributive justice is the most obvious moral underpinning of criminal law. From a legal standpoint, crimes are
treated as violations against the state, not against an individual person or group. Offenses are normally tried through the
criminal justice system, where a prosecutor representing the
state confronts the defendant and attempts to establish his or
her guilt. Punishments for convicted criminals normally
include fines, the loss of liberty and, in some legal systems,
the death penalty. Although the victims of a crime may
derive satisfaction from the knowledge that their abuser has
been punished, criminal penalties do not normally involve
payment or other direct benefits to the victim.
One major criticism of trying human rights abuses
through the criminal justice system is that punishments are
primarily retributive in nature. Since they do not normally
involve compensation to victims, apologies, or other direct
ways of redressing victims, criminal penalties fail to address
all of the social, moral, and economic needs of the victim or
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surrounding community. A related criticism is that by placing the emphasis on punishing the offender, criminal trials
treat victims as corollaries to the process, helping only to
implicate the offender. Criminal courts rarely devote appreciable effort to restore the victim’s social or economic losses.
Restorative justice is an alternative or complement to retributive justice. It is a concept that focuses less on punishing
the offender and more on the offender’s relationship with his
or her alleged victim and the broader community. Measures
to deliver “restoration” after a crime tend to emphasize dialogue and negotiation between the victim and the offender.
The goal of restorative justice is to compensate the victim or
otherwise “restore” the well-being he or she enjoyed before
the crime. In most common law systems, victims cannot sue
for damages in criminal courts. Instead, civil courts are normally the forums that victims may use to pursue restorative
claims. If the victim and offender are not able to negotiate
compensation out of court, the victim may seek an adversarial trial to determine whether any damages are due. The same
act that constituted a crime in one context becomes a tort or
“wrongful act” in a civil setting and can serve as the basis for
economic reparations. Unlike criminal trials, the alleged victim in a civil suit is directly involved as a litigant. Civil trials do not ignore retributive considerations but place greater
focus on the economic and social ills that befell the plaintiff
as a result of the alleged wrongful conduct.
Both retributive justice and restorative justice are laudable
objectives, and they are by no means incompatible. If successful, processes that stress retribution can provide moral condemnation of offenders and deter future criminal behavior.
Retribution can thus help to uphold the rule of law and prevent a culture of impunity. Restorative justice plays a different
role, helping repair social and economic damage to victimized
individuals and communities. In the wake of any crimes—but
especially mass and systemic abuses—both processes are crucial. Neither alone tends to produce a complete sense of justice
in the eyes of the victim or the community.
The Khmer Rouge Tribunal:
Focusing on Retributive Justice
The Cambodian legal system follows the civil law tradition and does not have as clear a divide between civil and
135
criminal processes as most common law systems. In
Cambodia, criminal trials have traditionally encompassed
aspects of both retributive justice and restorative justice.
Alleged perpetrators are brought before a criminal court to be
tried and punished if they are found guilty, but victims are
also entitled to take part in the criminal proceedings and to
file claims for compensation. Nevertheless, the focus of the
upcoming Khmer Rouge Tribunal appears to be almost
exclusively on delivering retributive justice. Most other
international and mixed criminal tribunals have similarly
sought to achieve retributive justice but have done little to
provide restorative justice. The Nuremberg and Tokyo military tribunals, the International Criminal Tribunals for the
Former Yugoslavia and Rwanda (ICTY and ICTR, respectively) and the Sierra Leone Special Court have all focused on retribution and punishment, excluding provisions for meaningful restoration for aggrieved victims.
The desire to secure retributive justice through the ECCC
proceedings is not inappropriate. Victims often demand retributive justice as a response to serious criminal acts and
human rights abuses. In Cambodia, following the mass atrocities of the Khmer Rouge regime, there are quite naturally
widespread calls for Khmer Rouge perpetrators to be punished for their crimes. The tribunal will attempt to address
these demands for retributive justice by trying some of the
surviving Khmers Rouges believed to be most responsible for
the crimes of Democratic Kampuchea. ECCC judges will
determine their individual accountability, punish those found
guilty, and send the message that their actions were unacceptable through public moral condemnation.
Retribution at the Khmer Rouge Tribunal will not
include forcing defendants to pay “the ultimate price.” The
ECCC Law limits punishment to life imprisonment, excluding the possibility of the death penalty, which some victims
have advocated. UN and RGC negotiators chose to abide by
widely (but not universally) held human rights norms that
exclude the use of the death penalty, even in the most egregious of criminal cases. In deciding to limit punishment to
the deprivation of liberty, they also observed that the death
penalty has been abolished in Cambodia and is not allowed
by the other international and mixed criminal courts.
Nevertheless, there will likely be continuing debate in
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Cambodia about whether any prison sentences, even for life,
provide sufficient retribution for the grave offenses of
Democratic Kampuchea.
Of course, the aim of a criminal process is not solely to
exact revenge. The social condemnation and punishment arising from the Khmer Rouge Tribunal can also serve to deter
others from committing similar abuses in the future, and successful trials can signal an important challenge—or perhaps
even an end—to impunity in Cambodia. Furthermore, by
holding those in charge of the crimes accountable in a formal
and legal setting, criminal trials can bring Cambodians a step
further in the process of healing. Cambodian society has
struggled with the Khmer Rouge demon for years. The tribunal can give observers the sense that justice has finally prevailed and help society move on from the past.
For individuals who suffered under Khmer Rouge rule,
seeing the perpetrators brought to justice is likely to be
important in healing deep emotional and psychological
wounds. In Cambodia as elsewhere, many victims will not
perceive justice to be done unless they see that the people
most responsible for their acute suffering are held accountable and punished in some manner. Seeing the tribunal deliver credible verdicts can also help regenerate victims’ faith in
societal norms and the legal and institutional system
designed to enforce them.
Restoration and the Khmer Rouge Tribunal
Although most criminal processes dealing with serious
human rights abuses have focused on retributive justice, the
desire for punishment and moral condemnation should not
entirely overshadow victims’ demands for restorative justice.
This is particularly true in a civil-law country like Cambodia,
where traditionally both types of justice can be pursued in
the course of criminal trials. Article 39 of the ECCC Law
allows for the confiscation of property and money acquired
unlawfully or by criminal conduct. This implies that ill-gotten funds of convicted defendants will return to the state’s
coffers. However, it appears that the Khmer Rouge Tribunal
will do little to provide victims with material compensation.
There are several reasons why the Extraordinary
Chambers are not likely to include a significant mechanism
for restorative justice. First, there would be potentially enor137
mous logistical problems involved in dealing with thousands
or even millions of requests for compensation. Second, if any
of the convicted persons are unable to pay compensation,
there would likely be a lack of ample public funds for reparations. Third, a high number of compensation requests could
overload the tribunal and limit its capacity to conduct sound
and thorough criminal proceedings. These problems are significant and help to explain why other international criminal
courts and tribunals have tended to shy away from retributive
mechanisms in a similar fashion.
For the reasons above, restorative justice would be difficult to deliver through the Khmer Rouge Tribunal. However,
if victims are not compensated for the damage done to them,
the tribunal will only have achieved a partial form of justice.
The International Criminal Court and the Kosovo mixed
courts are examples of tribunals that seek to apply both retributive and restorative justice in response to international
crimes. Some Cambodian organizations and members of civil
society have advocated that victims be similarly entitled to
compensation before the Khmer Rouge Tribunal. In particular, critics have suggested specific ways of combining both
aspects of justice without impeding the court’s primary role
of investigating and adjudicating. For example, victims could
be represented collectively before the court, instead of individually. Others contend that even symbolic compensations
should be sought to underscore the importance of restorative
justice. To date, however, it appears unlikely that the
Extraordinary Chambers will implement such proposals.
Justice for Large-Scale Human Rights Abuses
The sheer scale of abuses in Democratic Kampuchea presents a challenge to delivering any form of credible justice to
survivors of the regime. It is beyond historical doubt that
thousands of Khmer Rouge officials and cadres were involved
in committing atrocities between April 1975 and January
1979. Some foreign actors arguably bear a degree of responsibility as well for funding and otherwise supporting the
Khmer Rouge regime. Victims also abound, as millions of
Cambodians and a significant number of foreigners died or
suffered at the hands of the Khmer Rouge regime. However,
only a tiny minority of alleged perpetrators will be brought
to trial at the Extraordinary Chambers. Can justice be
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achieved if only a handful of defendants are tried after millions of people suffered so gravely?
Past Tribunals and the Problem of “Selective Justice”
One way to answer this difficult question is by looking at
past international practice in cases of serious and widespread
human rights abuses. All international and mixed criminal
tribunals to date have been established with the knowledge
that they will only try a limited number of defendants. In all
cases, international tribunals have been designed in a manner
that would leave the majority of people responsible for crimes
to be tried in other forums, if at all.
The first example of prosecution for serious crimes at the
international level was before the Nuremberg International
Military Tribunal (IMT). This court was set up in 1945 to try
“major war criminals of the European Axis of Countries” for
international crimes, while the task of trying minor criminals
was left to the Allied national courts. The American and
Western European creators of the tribunal justified their
focus on senior leaders of Nazi Germany by stressing the “collective character of Nazi massacre.” The collective nature of
the crimes meant that hundreds of thousands were potentially involved in illicit activity, and trying all of them was
impossible. Such widespread trials would also be undesirable
as the West helped to rebuild a strong West German state at
the outset of the Cold War. It was deemed more appropriate
to assign criminal responsibility to the masterminds of Nazi
terror. In essence, this set the leadership apart from the ordinary population and allowed allies to issue stern moral and
legal judgments while reducing the risk of nationalist opposition to the trials and leaving most of Germany’s human capital intact.
The 1946 Tokyo military tribunal applied a similar prosecutorial strategy and tried only leading Japanese officials. As
in Germany, the victorious Western powers—and particularly the United States—sought to reprimand and punish imperial Japanese leaders while building a new Japan that would
serve as an eastern bulwark against communism. That meant
conducting trials that would not galvanize excessive popular
resistance or reduce the functionality of the Japanese state.
The painful reality in both Germany and Japan was that
most of the trained scientists, bureaucrats, and other members
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of the professional class had worked with the wartime Axis
regimes. Putting many of them on trial, or even removing
them from their posts, was deemed impossible if Japan was to
become a strong, functioning democracy and withstand the
domestic and international pressures of communism. When
combined with domestic trials of lower-ranking officials,
many observers viewed the international focus on senior leaders as an appropriate way to assign legal responsibility for
heinous crimes committed during the Second World War.
Although the Nuremberg and Tokyo trials received broad
international acceptance, they were not without critics.
Opponents of the tribunals argued that in addition to focusing on a limited number of defendants, prosecutors followed
nakedly political agendas and exercised victors’ justice by trying only officials on the vanquished side. Unlike the
Nuremberg and Tokyo tribunals, the “second generation” of
international criminal courts, namely the ICTY and ICTR,
were set up to try any persons responsible for serious violations of international humanitarian law. Their statutes left
prosecutors broad discretion to decide who to prosecute based
on the evidence gathered. Interestingly, the prosecutors of
those courts initially pursued two different strategies.
Prosecutors at the ICTR followed the Nuremberg model
of targeting high-level officials from the outset. They focused
on military and civilian leaders and left Rwandan courts the
task of trying lower-level offenders. By contrast, the first
prosecutors at the ICTY indicted offenders from different levels, whatever their rank or position, including relatively lowlevel offenders. This practice provoked comments by ICTY
judges that “in their view the mission of the ICTY, as laid
down in its Statute, was to prosecute and punish those persons who bore major responsibility for the most appalling
crimes perpetrated in the former Yugoslavia.”
Following these judicial pronouncements, ICTY prosecutors gradually came to concentrate on prosecuting only highranking defendants, leaving the “small fries” to the national
courts of the countries concerned. The bulk of defendants in the
Kosovo courts and the ICTY also came from groups that had
suffered military defeat by Western powers. The fact that these
courts are seen by some as being one-sided raises concerns about
their legitimacy and their potential to bring about reconciliation between the opposing sides. Time will tell whether many
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critics raise similar objections to the Khmer Rouge Tribunal.
Like the ICTY and ICTR, the mixed courts in East Timor
and Sierra Leone have followed the “Nuremberg model” and
focused on high-ranking defendants as the most effective way to
achieve justice for widespread international crimes in those
environs. In Sierra Leone, the Special Court’s statute provided
for a restricted prosecution, while in East Timor the policy
evolved more as a matter of practice. The stated rationale
behind trying the most senior or “responsible” suspects in international or mixed criminal courts—rather than domestic
courts—is to ensure that people responsible for grave abuses at
the policy level are tried and brought to justice by independent
and competent courts that can handle complex cases safely and
fairly. In practice, resource constraints and political concerns
about the effects of wider-ranging prosecutions are almost
always important factors as well. The international criminal tribunals and mixed courts in East Timor and Sierra Leone have
been created in the context of concerns about the peace and
integrity of fragile post-conflict regions and societies.
While focusing on senior officials may be sensible for a
number of reasons and is generally the only financially and
logistically feasible option, selective international prosecutions achieve only “partial” justice. They address only a fraction of the alleged crimes committed. In general, therefore,
selective prosecutions can only satisfy popular demands for
justice if combined with other mechanisms, such as trials by
national courts—like those conducted in Rwanda and the
former Yugoslavia—or truth and reconciliation commissions
like those convened in Sierra Leone and East Timor.
Although scholars, activists, and political figures have
long discussed the possibility of domestic trials or a truth
commission in Cambodia, no such formal mechanism appears
likely at present. One of the principal tasks of non-governmental organizations, including the Documentation Center
of Cambodia, will be to find ways to supplement the work of
the Extraordinary Chambers by involving local communities
in the accountability process and creating informal surrogates
for a truth commission.
“Selective” Prosecution
before the Khmer Rouge Tribunal
Following the bulk of past international practice, the
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Khmer Rouge Tribunal will only investigate and try crimes
committed by “senior leaders of Democratic Kampuchea” or
by “those who were most responsible for the crimes and serious violations…” UN and Cambodian officials have given
numerous reasons for such restricted personal jurisdiction.
The main reason put forward is that the Extraordinary
Chambers will not have the financial and logistical capacity
to try every potential perpetrator of the crimes committed
under Democratic Kampuchea.
Despite general agreement that the scope of prosecution
should be limited, the United Nations and Cambodian government found it difficult to agree on the precise number of
persons to be prosecuted by the court. At the beginning of
1999, while the Cambodian government stated that only four
or five senior DK leaders should be tried, the UN group of
experts advocated for the prosecution also of “those most
responsible for the most serious violations of human rights
during CPK rule” and put forward a number of 20 to 30 persons. The group of experts further specified that the court
should prosecute “not only senior leaders with responsibility
over the abuses, but also those at lower levels who were directly implicated in the most serious atrocities.” These different
views on the scope of the prospective tribunal’s personal jurisdiction led to some conflict between UN and RGC officials.
Commentators have suggested that the divergent views of
UN and RGC officials reflect the fact that the two sides have
pursued different objectives that are sometimes difficult to
reconcile. UN assistance in setting up the court aimed at
three main goals: condemning the commission of serious
human rights abuses, putting an end to the culture of
impunity, and establishing the rule of law in Cambodia. By
helping to create the Khmer Rouge Tribunal, the United
Nations has sought to complete the mission it began with the
UN Transitional Authority in Cambodia, facilitating
Cambodia’s emergence as a peaceful democratic country with
the promise of social and economic development. UN negotiators contended that trying a significant number of perpetrators would produce the greatest sense of justice and thereby facilitate genuine reconciliation.
Cambodian officials disagreed with the UN position and
asserted that reconciliation had already been achieved. Too
many prosecutions, they argued, would jeopardize a fragile
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state of peace. Instead, only the very most senior leaders of
Democratic Kampuchea should stand trial. Critics of Prime
Minister Hun Sen and his Cambodian People’s Party (CPP)
have argued that the government’s main interest in establishing the court was to achieve greater domestic political power
by securing recognition as the government that decisively
eradicated the Khmer Rouge movement. Critics have also
suggested that the Prime Minister sought to limit the prosecutions to protect long-standing CPP members who were
once Khmer Rouge cadres or officials. Further, they assert,
Hun Sen’s own participation as a military officer in the
Khmer Rouge armed forces may have influenced his determination to limit prosecutions.
However, in April 1999, Duch’s public appearance and
subsequent arrest led to a significant change in the
Cambodian government’s position. Duch had not been a top
policy official in Democratic Kampuchea, but his role as the
chief of the notorious Tuol Sleng Prison made him the subject of considerable infamy. The CPP leadership expressed its
willingness to see he prosecuted, despite the fact that he did
not qualify as a “senior leader.” To enable a prosecution of
Duch, RGC negotiators agreed to extend the personal jurisdiction of the Khmer Rouge Tribunal and to include officials
who were not necessarily of senior rank but were nevertheless
deemed to be among those “most responsible” for serious
human rights violations.
Some critics assert that the Khmer Rouge Tribunal
should try dozens or even hundreds of defendants if justice is
to be done. Former King Norodom Sihanouk has bitterly
attacked the tribunal’s limited personal jurisdiction, saying
the trials will focus only on a handful of “super-torturers and
killers.” However, after much negotiation the ECCC Law
came to permit only the prosecution of “senior leaders” and
others alleged to be “most responsible for crimes and serious
violations” in Democratic Kampuchea. Historians and legal
scholars have argued that if the ECCC prosecutors were truly
to follow the evidence wherever it leads, they would almost
certainly find reasons to prosecute many more people at all
levels of Cambodian society, past and present. Allowing more
than a narrow range of prosecutions does indeed present the
risk of a “slippery slope” that could challenge the tribunal’s
resources and—according to some commentators—put peace
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at risk in the country. For these reasons, the United Nations
and Cambodian government appear to have agreed that only
approximately five to ten accused persons will stand trial.
Fair Trials as a Key Element of Justice
Whatever the number and seniority of persons tried by
the Khmer Rouge Tribunal, its success will also be measured
by its ability to conduct fair trials. The ECCC proceedings
and decisions will only be accepted as legitimate by the
Cambodian people and by foreign observers if the tribunal
respects internationally recognized standards of fairness.
The Concept of Fair Trials
As a reaction to the crimes of the Second World War and
as an expression of growing normative consensus among
members of the international community, the United
Nations and regional political organizations established various rules that protect the fundamental human rights and
freedom of the person. Those rules are embodied in a variety
of regional or international treaties and conventions, such as
the European Convention on Human Rights and the United
Nations International Covenant on Civil and Political Rights
(ICCPR). By ratifying such legal instruments, many countries have acknowledged their legal duty to guarantee certain
rights to all individuals within their territory.
Some of the most important rights enumerated in the
ICCPR and similar instruments protect defendants in criminal trials. International law provides that accused persons
must be presumed innocent until proven guilty, tried fairly
and within a reasonable time, and entitled to certain minimum procedural rights. For example, defendants possess the
right to legal representation and the right to be given adequate time and facilities to prepare their defense. The denial
of such rights is indicative of an unfair judicial system and
weak rule of law. By contrast, protection of defendants’ rights
is an indication of the country’s commitment to justice rather
than revenge.
Respect for defendants’ rights also gives legitimacy and
credibility to the legal process. This is particularly important
when courts deal with crimes of an extensive and notorious
nature, like the crimes of the Khmers Rouges. If trials appear
biased or unfair, the international community and many
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domestic observers will simply reject the ECCC’s findings. The
1979 trials in absentia of Pol Pot and Ieng Sary are one example among many. By contrast, trials perceived as fair are more
likely to be seen as legitimate by the parties and society as a
whole. A convicted defendant is more likely to accept the
court’s decision, and thereby his wrongdoing, if he or she perceives the process as fair. Perhaps even more importantly, victims will be more confident that the right people have been
convicted after a proper testing of evidence. Amnesty
International’s Fair Trials Manual states the case convincingly:
Every government has the duty to bring to justice
those responsible for crimes. However, when people
are subjected to unfair trials, justice cannot be
served. When people are tortured or ill-treated by
law enforcement officials, when innocent individuals are convicted, or when trials are manifestly
unfair or are perceived to be unfair, the justice system itself loses credibility. Unless human rights are
upheld in the police station, the interrogation room,
the detention centre, the court and the prison cell, the
government has failed in its duties and betrayed its
responsibilities.
The United Nations emphasized the importance of fair
trials when establishing the ICTY, ICTR, ICC, and mixed
courts, aware that their legitimacy and credibility depended
on perceptions that they were treating all sides fairly. The
statutes for each tribunal include provisions that guarantee
defendants’ rights enshrined in the ICCPR.
Some critics have accused the UN-sponsored tribunals of
pandering too much to the demands of the defense to the
detriment of expeditious trials. For example, some found
fault with the length of the trial of former Serbian leader
Slobodan Milosevic, which was partly due to the courts’
emphasis on his right to defend himself. The ICTY has been
faulted for granting Milosevic too much latitude and allowing him to speak at great length during televised court sessions, largely for domestic consumption in Serbia. In addition
to the large financial costs incurred during his extended trial,
the ICTY missed the opportunity to issue a judgment against
him before his passing.
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The Khmer Rouge Tribunal will have the difficult
responsibility of striking the right balance in protecting
defendants’ rights and ensuring expeditious proceedings. If
the ECCC proceedings are unnecessarily long, some Khmer
Rouge defendants could pass away or become unfit for trial
before the conclusion of proceedings. To some, that result
would mean a missed opportunity for justice.
Ensuring Fair Trials at the Khmer Rouge Tribunal
Procedural fairness is crucial so that observers will perceive the Khmer Rouge Tribunal proceedings as legitimate;
it will also encourage the permeation of international norms
of fairness into the Cambodian judicial system. Human
rights groups have been especially keen to find ways to ensure
that the future trials are as fair as possible.
Requiring Fairness in the UN-RGC Agreement & ECCC Law
The incorporation of provisions guaranteeing the rights
of the defendant in the documents establishing the Khmer
Rouge Tribunal was one of the prerequisites for UN involvement in the Extraordinary Chambers. Although UN and
RGC officials debated the inclusion of certain ICCPR provisions, the ECCC Law and UN-RGC Agreement ultimately
included language recognizing most of the rights of the
defendant guaranteed by the ICCPR. Both documents also
specify that the Extraordinary Chambers “shall exercise their
jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in the ICCPR.”
Since Cambodia ratified the ICCPR, some argued that it
was unnecessary to state this in the ECCC Law, but the precaution demonstrates the UN and RGC commitment, at
least in theory, to safeguarding the rights of defendants. In
this regard, scholar Steve Heder stated: “Although there is
vast and probably mostly already lost potential for improving
on the [ECCC Law and UN-RGC Agreement], there is nothing fundamentally wrong with them, at least on paper, either
in human rights terms or truth-seeking terms.”
Selecting Court Personnel
Some human rights groups and Western governments
have nevertheless raised doubts about the ability of the ECCC
to guarantee such rights in practice. Most doubts stem from
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concerns about the independence and impartiality of
Cambodian officials. Critics are concerned that there will be
a majority of Cambodian prosecutors and judges in the
Extraordinary Chambers. During the negotiations on the
Khmer Rouge Tribunal, human rights activists advocated for
the establishment of a court comprised mostly or solely of
international judges and prosecutors to limit the risk of
unfair or poorly administered trials. Human Rights Watch
argued in a 2005 report that: “the Cambodian government
record of interfering with courts and intimidating judges, as
well as the grossly inadequate training of many judicial officials, gives reason for concern that prosecutions could be
politically influenced.”
However, UN and Cambodian officials did not follow this
suggestion. Pursuant to the ECCC Law, both Cambodian and
international judges, prosecutors, and other officials were
appointed in May 2006. Domestic and international critics
argued that the government’s selection process was unnecessarily opaque and politically motivated, and such critics have
challenged the independence and competence of a number of
the Cambodian officials appointed. Critics alleged that with
such officials working at the ECCC, the Khmer Rouge
Tribunal may not provide high standards of justice.
This matter is critical; the success of the ECCC obviously
depends in large part on the quality of court personnel. If
observers come to believe that the Extraordinary Chambers
are marked by corruption, bias, or ineptitude, the reputation
of Cambodia’s judiciary would be further tarnished. Public
faith in the domestic criminal justice system would suffer,
and the ECCC would fail to deliver credible justice to the victims of Khmer Rouge abuses.
Another important concern, which is present in any highprofile international criminal trial, relates to the popular presumption of guilt that defendants accused of serious crimes
must overcome. High conviction rates are usually considered
a success indicator for mixed and international tribunals.
They reassure donors that the funds provided have been properly used and satisfy the call of victims for retribution.
Conversely, acquittals can be seen as failures and wastes of
resources. They are also more difficult to justify to victims.
The Khmer Rouge Tribunal will almost certainly face strong
public pressure to convict defendants, which may conflict
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with the need to ensure procedural fairness.
Justice should not be measured simply by the percentage
of convictions. Instead, it should relate to the ECCC’s ability
to find the truth and to base convictions on fair trials and due
process of law. To do so, the accused individuals must be
allowed an opportunity to defend themselves zealously on
equal footing with the prosecution, leaving open the real possibility that certain cases may end in acquittals. ECCC judges,
like others working at international or mixed criminal courts,
must therefore be of a particularly high standard. They must
develop a healthy level of immunity to public and political
pressure, apply the presumption of innocence throughout the
criminal proceedings, and respect procedural fairness.
Justice as a Means to Achieve Broader Objectives
The Cambodian people, the Cambodian government, and
the international community have varying expectations as to
what the Extraordinary Chambers can achieve. Finding the
truth, expressing moral condemnation, and deterring the
commission of further crimes are standard expectations in
criminal trials. However, proponents of the Khmer Rouge
Tribunal also have more ambitious objectives—such as establishing the rule of law or strengthening the functionality of
the national government—given the high public profile of
the ECCC and the considerable resources the Extraordinary
Chambers will have at their disposal.
Uncovering the Truth
If Cambodians are to deal with the past, it is crucial that
they understand how and why such staggering abuses
occurred under the Khmer Rouge regime. In a 2002 survey by
the Documentation Center of Cambodia (DC-Cam), 73 percent of the Cambodian interviewees indicated that they wanted to know more information about the history of the Khmer
Rouge organization and the DK regime. By establishing a
public fact-finding forum, the Extraordinary Chambers can
contribute greatly to fulfilling that objective and satisfying
Cambodians’ thirst for knowledge about the past.
It is beyond dispute that societies traumatized by grave
human rights abuses must understand the truth, face it, and
learn from it. The tribunal can only be considered a success if
it brings Cambodian society face to face with its history and
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leads to a better public understanding of the events of 19751979. The tribunal’s solemn official setting and international participation can add to the perceived legitimacy of the
facts that it determines. The Extraordinary Chambers’ findings can help establish an accepted history that can be disseminated to Cambodian, now and for future generations. A
good example of a society that has dealt with the past is
Germany, where teachings on the Nazi regime and the
Holocaust have long been a significant and fundamental part
of a child’s education. No similar educational curriculum
exists in Cambodia, but the tribunal could help change that.
One should not expect that the findings of the Khmer
Rouge Tribunal will amount to the “full truth” about
Democratic Kampuchea, however. Trials only focus on finding the truth from a limited perspective. Lawyers and judges
scrutinize facts to establish the truth of allegations about a
particular defendant, concentrating on the involvement of
particular suspects in specific events. Even trials of senior
leaders will therefore focus on a limited universe of facts considered relevant to proving the defendant’s innocence or
guilt. In addition, the “truth” delivered by the tribunal will
only be accepted to the extent that the process in the
Extraordinary Chambers is seen as legitimate. Criminal
courts determine the truth through a legal process that consists of applying accepted standards of proof to the evidence.
When a court fails to apply those standards correctly,
observers are unlikely to accept the court’s findings as the
truth. As Cambodia scholar Steve Heder has argued: “If the
trials in the Extraordinary Chambers are unfair and if its
prosecutions are limited by political factors instead of the
text of the law, the trials themselves are not likely to add very
much to our knowledge and understanding of what happened
under CPK rule and why.” This is another reason why it is
essential for the Khmer Rouge Tribunal to follow procedural
norms closely.
Considering the factors above, those who expect to discover the “whole truth” through the Khmer Rouge trials will
likely be disappointed. However, the public trials of former
Khmer Rouge leaders can clarify important historical points,
bring information to a wide general audience, and help
Cambodians learn about and come to terms with the past.
Many aspects of the Khmer Rouge regime will remain
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shrouded without further historical study, but the tribunal
can draw attention to a difficult subject and provide a compelling reminder of the need for further work outside of the
judicial arena.
Preventing Further Crimes
Another generally expected outcome of justice is to serve
as a deterrent, preventing the commission of similar crimes in
the future. By implementing criminal laws and publicly punishing violators, a court sends a threatening message to individuals who might be tempted to commit similar offenses.
According to a DC-Cam survey conducted in 2002, many
Cambodians place priority on the “deterrent effect” of the
upcoming Khmer Rouge trials and the “moral lesson” trials
will convey. Both local and international proponents of the
tribunal hope and expect that the Extraordinary Chambers
will have such a deterrent effect.
In an analysis of the 2002 DC-Cam survey results, international lawyer Suzannah Linton argued that Cambodia’s
emphasis on deterrence is connected to:
…the great importance that respondents placed on
attaining generational changes in conduct. Trials
alone are seen as having the potential to break the
cycle of violence and impunity. This is the use of the
judicial process as educational, a deterrent in that
what would emerge would be so shocking as to serve
as a warning of the dangers of blind obedience to
doctrine, the extreme dangers of authoritarian leadership, and the punishment that would be meted to
individuals for their role in the horrors.
Preventing the commission of future heinous crimes in
Cambodia and abroad was certainly one of the core objectives
leading to the establishment of the Extraordinary Chambers.
All international or mixed criminal courts have been set up
with the aim of deterring future commissions of large-scale
and heinous offenses.
However, doubts have been expressed over the effectiveness of justice as a deterrent when dealing with international
crimes. Professor Colm Campbell has argued that: “The best
that can be said about the viability of deterrence theory in the
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context of major violations of international humanitarian law
is that it is, as yet, unproven.”
From a Cambodian perspective, the large time gap
between the period in which the human rights abuses were
committed and the time of the tribunal may soften the deterrent effect. Even if the Khmer Rouge Tribunal appears to
have only a limited deterrent effect, it can nevertheless play
an important role in helping Cambodians put the past behind
them and look to the future.
Challenging the Culture of Impunity
A culture of impunity has become entrenched in
Cambodia, due, at least in part, to the fact that there has been
no accountability for the crimes of the Khmer Rouge. Many
anticipate that the tribunal will enhance the rule of law, helping to bolster public expectations of justice in Cambodia and
invigorating the notion that no one, including political leaders, is above the law.
It is difficult for many Cambodians to have faith in the
justice system when petty thieves or apparently innocent people are thrown in jail, while top Khmer Rouge leaders
allegedly responsible for mass atrocities remain free. The
Extraordinary Chambers can help remedy this culture of
high-level impunity by punishing those responsible for
Khmer Rouge atrocities. Through its proceedings and decisions, the tribunal can restore a sense of justice to Cambodia
and advance the rule of law. The international community,
via the United Nations, recognized this possibility when it
recommended the establishment of the Extraordinary
Chambers. The UN General Assembly adopted Resolution
57/228 in December 2002, pointing out that “the accountability of individual perpetrators of grave human rights violations is…a key factor in ensuring a fair and equitable justice
system…within a State.”
Furthermore, like any other international or mixed criminal courts, the Extraordinary Chambers is expected to contribute to the international community’s broader struggle
against impunity by setting strong judicial precedents.
Undoubtedly, the Extraordinary Chambers’ proceedings will
contribute to such an objective by focusing international
attention on impunity for the most serious crimes of concern
to Cambodia and the world as a whole.
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Building the Rule of Law
Challenging impunity in Cambodia is inseparable from
another exceedingly important and ambitious objective of the
upcoming Extraordinary Chambers: contributing to the
establishment of the rule of law in Cambodia. The tribunal
can help advance this goal by serving as a model of justice for
Cambodian domestic courts. It is imperative that the
Extraordinary Chambers set a precedent of exemplary justice,
abiding by international standards of justice, fairness and due
process. Since the Khmer Rouge Tribunal is officially a part
of the Cambodian judicial system, most of its personnel will
be Cambodian nationals. Court personnel can transfer their
acquired expertise in the application of international standards of justice and fairness to the domestic legal system. In
addition, the tribunal can help to re-establish public trust in
Cambodia’s domestic courts by showing the population that
the judicial system can conduct trials fairly.
These developments would strengthen Cambodia’s entire
system of government and build on the foundation for
democracy that the UN Transitional Authority in Cambodia
and domestic groups established in the early post-Cold War
period. After decades of civil strife and underdevelopment,
Cambodia’s government and legal system desperately need to
regain the confidence of the citizenry. Some suggest that the
retributive nature of the tribunal will help strengthen and
solidify the new government because the trials against former
Khmers Rouges will convey the message that the new government is determined to bring justice to the people.
Conclusion: What amounts to a fair trial?
The concerns above raise the question of what standard of
procedure and decision-making is necessary for trials to be
considered as fair? Opinions vary. Some international human
rights organizations, scholars, and UN member states and
officials have argued that it is better not to have a tribunal at
all than to have a tribunal that would not respect the international standards of fairness and due process. As noted
above, critics are primarily concerned with the fact that the
tribunal will be composed of a majority of Cambodian personnel, who may be vulnerable to influence by the government. Others including Gregory Stanton, the President of
Genocide Watch, have responded that “perfection is the
152
enemy of justice” and that an all-or-nothing approach to justice is self-defeating. To support this position, advocates of
the tribunal stress that Cambodians have waited many years
to see their call for justice met while the alleged perpetrators
were growing old. They contend that to fail to prosecute serious crimes because of the pursuit of an ideal form of justice
could be more damaging than having imperfect trials.
Surveys consistently show that Cambodians have little
trust in their judicial system and would have preferred a tribunal composed only of international prosecutors and judges,
rather than a mixed tribunal. However, a survey conducted in
2004 by the Khmer Institute of Democracy indicates that,
when given the choice between having no trials at all or trials that could conceivably possess lower standards of justice
and fairness, the majority preferred the latter. Moreover, 61
percent of the people interviewed believed that the tribunal
in its “mixed” form will deliver justice.
Another controversial issue has been the identity of some
of the Cambodians appointed to the ECCC as prosecutors and
judges. Some critics have suggested that party membership of
prosecutors and judges is an indicator of their potential lack
of independence and impartiality, while others disagree. Such
discussions emphasize, however, how important it will be for
ECCC officials to carry out their duties independently,
impartially, and ethically. The debate also focuses attention
on the question of court personnel’s competence and experience and the need for Cambodian and international officials
to work well together.
Similarly, the importance of having competent and effective defense counsel before the Khmer Rouge tribunal cannot
be over- stated. Like external organizations, defense lawyers
should play a role in helping to ensure the integrity and fairness of the criminal proceedings. Thus, some local and international organizations have provided training to improve the
knowledge of local defense counsel in international criminal
law and to explain to the public the significance of the
lawyers’ role during the legal process. Furthermore, the
United Nations, recognizing the importance of having an
effective defense before the Khmer Rouge Tribunal, has
included a defense office in the structure of the Khmer Rouge
Tribunal. That office is expected to be similar to the Office of
the Principal Defender, which was set up within the Special
153
Court for Sierra Leone to provide technical support and legal
assistance to defense counsel.
Local organizations and scholars have also emphasized the
need to ensure that trials be open to the public, including the
media and local and international organizations, as provided
by the ECCC Law and UN-RGC Agreement. The publicity
of trials will help ensure that judges apply the law correctly
and do not deny the rights of the defendants. A number of
organizations plan to carry out “watchdog” functions by
monitoring the trials and reporting on any observed violations of the applicable law or human rights standards. Other
organizations, including DC-Cam, plan to contribute to the
public character of the trials by helping the public to access
the court’s sessions and by providing information on the trials. Ultimately, the effect of the Khmer Rouge Tribunal will
be greatest if the victims of Democratic Kampuchea play an
active part as observers and participants in the quest for
accountability and the broader truth-telling process.
154
Son Sen155
and a foreign visitor (name unknown)
Vietnamese experts and the skulls of KR victims, 1979
156
Concluding Remarks
The Tribunal’s Broader Roles:
Fostering Reconciliation, Peace and Security
Héleyn Uñac
Like other modern international criminal tribunals, the
primary goal of the Extraordinary Chambers is to achieve justice by bringing to trial the perpetrators of the most heinous
crimes, such as genocide, war crimes, and crimes against
humanity. However, the Khmer Rouge Tribunal also shares
broader goals with other international accountability processes. It has the potential to feed into broader goals such as
building national reconciliation, peace and security, and
development.
Achieving National Reconciliation
Reconciliation is a less explicit goal of the tribunal than
justice. Proponents of the tribunal rightly cite the potential
of criminal trials to facilitate reconciliation, even if past experience of other international and mixed courts suggests that
the trials’ effects on broader societal healing are likely to be
somewhat diffuse and difficult to measure. Nevertheless, the
trials of alleged former Khmer Rouge leaders should bolster
the process of reconciliation by exposing the truth in a
solemn and formal legal setting and by confronting the
alleged perpetrators publicly. A better understanding of what
happened in Democratic Kampuchea, why it happened, and
who was most responsible for that era’s atrocities can help
people achieve a sense of closure and move on.
Societal Reconciliation
“Reconciliation” is a broad term that is often difficult to
define. As a process, it can be described as an evolution
through which people understand the past, put it into perspective, and move on to a more stable and cooperative
future. Reconciliation requires active participation and
157
engagement of former adversaries. It requires the parties to
come to terms with the past factually, morally, and emotionally so they can focus on a shared future. It also implies that
former adversaries re-establish a workable, even healthy, relationship so that the past does not continue to have a negative
impact on communal life. Simply forgetting the past is not
enough. South African’s Archbishop Desmond Tutu has
described reconciliation as involving “a very long and painful
journey, addressing the pain and suffering of the victims,
understanding the motivations of offenders, bringing together estranged communities, trying to find a path to justice,
truth and, ultimately, peace.”
In many post-conflict societies, rebuilding mutual trust
has been a critical aspect in the process of healing. Three
decades after the Democratic Kampuchea period, “bringing
together estranged communities” is still very much needed in
Cambodia. In fact, surveys indicate that many Cambodians
feel the need to focus on the restoration of trust, moving
toward a point when former adversaries “can smile at and
trust each other again.” By exposing the truth and differentiating fact from rumor, the Khmer Rouge Tribunal can help
build trust amongst neighbors, villages, and communities.
Individual Reconciliation
In addition to its societal and political aspects, reconciliation is often a highly personal experience. Grave human
rights abuses leave deep psychological scars on their victims,
and Cambodians are no exception. A study conducted by the
Documentation Center of Cambodia (DC-Cam) and the
Transcultural Psychosocial Organization (TPO) in 2004 and
2005 found that roughly one in three DK survivors suffer
from post-traumatic stress disorder (PTSD). They suffer from
a range of symptoms including insomnia, depression, nightmares, headaches, vertigo, intestinal ailments, occasional
blackouts, and a heightened propensity to violence. PTSD is
also correlated to drug and alcohol addiction, suicide, spousal
and child abuse, and many other social ills. In a population of
roughly 12 million, half of whom survived the Khmer Rouge
era, that suggests a staggering figure of two million PTSD
victims, few of whom receive any treatment. Millions of others suffer from related mood and anxiety disorders. This helps
to explain the lamentably high rates of criminal and other
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anti-social behavior in contemporary Cambodian society.
PTSD and other mental and emotional disorders are only
medical terms for the broad range of psychological wounds
that mass human rights abuses inflict on individuals. On an
individual level, “reconciliation” can be seen as the gradual
process of healing that enables a person to reintegrate into
society and to shed much of the painful burden of the past. It
can be accomplished through a variety of means. Religious
beliefs and practices, psychological therapy, conversations
with fellow victims or perpetrators and the passage of time
can all contribute to a sense of greater inner peace. The judicial process can reinforce these methods by revealing facts,
forming an accepted truth, obtaining apologies from the perpetrators and delivering punishment. The individual reconciliation experience is obviously linked to healing at the societal level. That places a responsibility on leaders of religious
groups, local governments, schools, health care centers, and
other community support structures to participate in the
process surrounding the tribunal. Meting out justice publicly
in the Extraordinary Chambers will likely reopen many old
wounds even as it helps to heal them.
Promoting Reconciliation via Justice
While successful trials alone cannot guarantee individual
and societal healing, it is difficult to achieve reconciliation
without justice. Due in large part to a series of political
impasses, justice has been a missing component in
Cambodia’s reconciliation process to date. In the 1990s, the
Cambodian government implemented a “reconciliation policy” whereby former Khmer Rouge soldiers and leaders were
granted amnesty for defecting and supporting the government. Political leaders in Phnom Penh considered this to be
the most promising way to deal with the Khmer Rouge problem and wipe out the still-festering insurgency. Many
Cambodians approved of the government’s amnesty policy,
and, to some degree, this policy may have placated popular
demands for justice.
However, in 1997 Cambodia’s dual prime ministers
requested assistance from the United Nations in bringing the
former leaders of the Khmer Rouge to justice. In 1999, following domestic and international pressure and the incorporation of some remaining Khmer Rouge officers and cadres in
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the Royal Cambodian Armed Forces, the government
announced that reconciliation had been achieved in Cambodia
and that the time had come for an investigation into the
Khmer Rouge crimes. The Cambodian government’s new
political position, which implied a somewhat artificial distinction between reconciliation and justice, led to the adoption of the ECCC Law and UN-RGC Agreement in 2004.
Many critics of the Cambodian government believe that
the “reconciliation” obtained through its amnesty policy is
illusory. Two main reasons are advanced to support this opinion. First, the reconciliation process did not involve extensive
grassroots participation. Far from including a broad spectrum
of Cambodians, it was essentially a deal concluded at the
political level between the government and the Khmer
Rouge leadership. Consequently, the amnesties were seen
more as political acts than as expressions of forgiveness by the
Cambodian people. As legal scholar Suzannah Linton has
argued, reconciliation must take place primarily at the local
level in order to take deep root in a society. The reconciliation
process promoted by the Cambodian government in the
1990s appeared, at least in some respects, to be a deal
between rival political elites. Second, the lack of any explanation or apology from senior Khmer Rouge leaders left many
questions about the Khmer Rouge period unanswered. This
made it difficult for Cambodians to come to terms with the
past and forgive past injustices. In the absence of genuine
apologies or explanations, the failure to prosecute the Khmer
Rouge crimes has stifled the reconciliation process.
The Khmer Rouge Tribunal has the potential to foster
reconciliation for a number of reasons. By focusing prosecutions on former senior leaders of Democratic Kampuchea, it
will highlight the distinction between the policy makers and
those who were simply swept up in the machinery. This can
help alleviate tensions between ordinary Cambodians and
contribute to the reintegration of former Khmer Rouge
cadres into mainstream Cambodian society. In addition, victims are likely to feel a sense of vindication when they see former leaders stand trial, confronted for their alleged crimes
and punished when found guilty. Along with possible apologies or explanations by Khmer Rouge defendants, this may
assist victims in forgiving, reconciling, and moving on.
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Special Features of
Reconciliation in the Cambodian Context
The social, political, and cultural context in which justice
is delivered is obviously important as well. Circumstances in
Cambodia appear to favor reconciliation. First, the country’s
religious tradition is conducive to a healing process that does
not involve violence or extralegal retribution. Theravada
Buddhism is the primary religion in Cambodia, and its basic
teachings emphasize forgiveness. Buddhism is not inconsistent with the concept of criminal trials, as the renowned
Cambodian spiritual leader Maha Ghosananda and others
have noted. However, Buddhist principles of justice stress
that vindictiveness is ended not by inflicting injury to others
but by achieving self-control, attempting to forgive past
injustices, and ceasing to be vindictive. The celebration of a
“Day of Anger” every year in Cambodia to recall the abuses of
the Khmers Rouges indicates that this process of healing is
by no means complete. However, by holding individuals
accountable, criminal trials should help to dampen anger,
reduce the likelihood of violent retribution, and advance reconciliation.
Secondly, the passage of time since the DK period makes
it more likely that judicial mechanisms will contribute to
national reconciliation. Other international and mixed tribunals were established while conflicts were still ongoing or
had just ended. In many cases, former adversaries on all sides
considered the tribunals to be illegitimate political tools and
had little respect for the verdicts. There was not the requisite
“distance” to allow the war-ravaged people to see the trials
objectively, and there was little hope to foster reconciliation.
By contrast, in the 27 years since the fall of the Khmer Rouge
regime, Cambodians have had no choice but to move on with
their lives and begin the process of closure. Ideally, the tribunal will help Cambodia move through the last chapter of this
difficult healing process.
Finally, organizations such as DC-Cam have helped prepare many Cambodians to deal with the past, notably through
truth-telling projects. These projects helped people gain
maturity in their approach to the crimes committed by the
Khmer Rouge regime and the upcoming proceedings before
the tribunal. In doing so, it became apparent that both the
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victims and some former Khmer Rouge welcome the establishment of the tribunal. While the victims look forward to
seeing the wheels of justice finally in action, many former
Khmer Rouge lower-level cadres hope that the trials will help
distinguish them from the leaders or those most responsible.
Peace, Security and the Rule of Law
A final issue when dealing with accountability for serious
crimes is to consider whether trials will lead to peace, security, and a stronger rule of law. These are all vital precursors to
social and economic development and a better life for ordinary Cambodians, which is the ultimate goal of the broader
process of national reconciliation.
Security and Stability in Cambodia
Supporters of the Khmer Rouge Tribunal argue that failure to prosecute at least some key DK officials will entrench
the culture of impunity in Cambodia, which could ultimately lead to instability and insecurity for the population.
Further, proponents believe that the tribunal’s proceedings
will help reinforce the wider judicial system and develop the
rule of law in Cambodia, which will contribute to long-term
peace and stability. DC-Cam’s magazine, Searching for the
Truth, has argued as follows:
Peace requires more than the absence of armies in
open combat. A peaceful society is a just society, and
the Cambodian people have not yet found justice.
Peace will not truly come to Cambodia until there is
real justice for the crimes of the Khmer Rouge regime.
By contrast, some critics of the tribunal argue that the
surrender of Khmer Rouge guerillas through the government’s amnesty program already brought reconciliation and
peace to Cambodia. They contend that criminal trials could
threaten that peace and lead to resumed conflict. As recently
as July 2006, King Norodom Sihamoni has warned that trials could reopen old political and societal wounds. The
Cambodian government essentially held this position until
1997, arguing that its amnesties were responsible for Khmer
Rouge defections and suggesting that trials would jeopardize
the peace that amnesties had delivered. Some public fig162
ures—including the King’s brother, Prince Norodom
Yuvaneath—have continued to warn of the potential destabilizing effect of trials. However, the government’s position has
changed, enabling prosecution of at least some of the most
senior former DK officials still living.
The argument that trials will trigger violence should not
be dismissed lightly in a country that has experienced such
political unrest in recent decades, but ultimately the argument
is not convincing. Mixed courts have operated in East Timor,
Sierra Leone, and Kosovo, and those processes do not appear to
have stoked significant additional civil unrest. Whether the
trials have caused the restoration of relative peace and stability
in those countries is difficult to establish, but most analysts
believe at a minimum that the trials have not threatened existing peace. Mixed tribunals have prompted criticism and some
demonstrations but have not generated a resumption of hostilities. The same is true for the international tribunals established for the former Yugoslavia and Rwanda. Based on past
international experience and the passage of time since the DK
period, it appears unlikely that the trials will threaten the current relative peace and stability of Cambodia.
Development and the Rule of Law
In addition to the moral problems of operating “kangaroo
courts,” countries that allow impunity to fester or deny
defendants the right to a fair trial pay a heavy economic and
political price. An unfair judicial process can dissuade international development agencies from providing funds to a
country and mobilize political opposition to its government.
Foreign traders and investors also look closely at the fairness
and efficiency of a country’s judicial system before committing the private sector resources needed for economic growth
and poverty reduction. Therefore, building a rule of law is
not only morally imperative: it advances the state’s broad economic and political interests as well. The Cambodian government has acknowledged that fact by making legal and judicial reform one of the pillars of its 2006-2010 National
Strategic Development Plan.
Conclusion: Looking towards the Future
To achieve its goals, the Khmer Rouge Tribunal should
learn from the experiences of other international or mixed
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criminal courts. The tribunal staff, the Cambodian government, and the international community must anticipate and
prepare to address the likely shortcomings of the ECCC. They
should also try to build on its many strong points, using the
process to reach out and engage the public. At the same time,
the Cambodian people and the international community
should maintain realistic expectations about what the tribunal
can deliver. It will not serve as a panacea for all the ills created by Democratic Kampuchea, and it cannot be the sole and
final mechanism for dealing with the crimes of Democratic
Kampuchea. Criminal trials are a necessary but limited part of
a broader response to mass human rights violations.
The Khmer Rouge proceedings will undoubtedly leave
many questions unresolved and further research and debate
will be required. Other complementary mechanisms for dealing with mass atrocities should therefore be employed to supplement the process of criminal justice. These include truth
and reconciliation exercises, educational outreach, and counseling sessions. A combination of such approaches will provide the best chance to achieve the accountability, justice, and
social repair that have been so long coveted in Cambodia.
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Further Reading
Histories of Democratic Kampuchea
• Elizabeth Becker, When the War Was Over, New York:
Simon & Schuster, 1986.
• Nayan Chanda, Brother Enemy: The War after the War: A
History of Indochina since the Fall of Saigon, New York:
Harcourt Brace Jovanovich, 1986.
• David P. Chandler, Voices from S-21: Terror and History
Inside Pol Pot’s Secret Prison, Berkeley, CA: University of
California Press, 1999.
• David P. Chandler et al, eds., Pol Pot Plans the Future:
Confidential Leadership Documents from Democratic
Kampuchea, 1976-1977, New Haven: Yale University
Southeast Asia Studies, 1988.
• David P. Chandler and Ben Kiernan, eds., Revolution and
Its Aftermath in Kampuchea: Eight Essays, New Haven: Yale
University Southeast Asian Studies, 1983.
• Craig Etcheson, The Rise and Demise of Democratic
Kampuchea, Boulder, CO: Westview, 1984.
• Karl D. Jackson, ed., Cambodia 1975-1978: Rendezvous with
Death, Princeton, NJ: Princeton University Press, 1989.
• Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide
in Cambodia under the Khmer Rouge, 1975-79, New Haven
and London: Yale University Press, 1996.
Works on Justice and Reconciliation in Cambodia
• John D. Ciorciari, “‘Auto-Genocide’ and the Cambodian
Reign of Terror,” in Dominick Schaller et al, eds.,
Contributions to Genocide Studies, Zurich: Chronos Verlag,
2004.
• John D. Ciorciari, “Great-Power Posturing and the
Khmer Rouge Tribunal,” Searching for the Truth, Issue 32,
Aug. 2002.
• John D. Ciorciari, “Political Transition and Justice in
Cambodia,” Searching for the Truth, Special Edition, Spring
2004.
• Craig Etcheson, After the Killing Fields: Lessons from the
Cambodian Genocide, Westport, CT: Praeger, 2005.
• Tom Fawthrop and Helen Jarvis, Getting Away with
Genocide? Elusive Justice and the Khmer Rouge Tribunal,
London: Pluto Press, 2004.
165
• Steve Heder, “Hun Sen and Genocide Trials in Cambodia:
International Impacts, Impunity, and Justice,” in Judy
Ledgerwood, ed., Cambodia Emerges from the Past: Eight
Essays, DeKalb, IL: Northern Illinois University Press,
2002.
• Ben Kiernan, “The Cambodian Genocide”, in George J.
Andreopolous, ed., Genocide: Conceptual and Historical
Dimensions, Philadelphia: University of Pennsylvania
Press, 1997.
• Koy Neam, Introduction to the Cambodian Judicial Process,
Phnom Penh: The Asia Foundation, 1998.
• Jaya Ramji and Beth Van Schaack, eds., Bringing the
Khmer Rouge to Justice: Prosecuting Mass Violence before the
Cambodian Courts, London: Edwin Mellen Press, 2005.
• Gregory H. Stanton, “Perfection is the Enemy of Justice:
A Response to Amnesty International’s Critique of the
Draft Agreement between the UN and Cambodia,”
Phnom Penh Post, May 9-22, 2003.
• Gregory H. Stanton, “The Cambodian Genocide and
International Law,” in Ben Kiernan, ed., Genocide and
Democracy in Cambodia, New Haven, CT: Yale Southeast
Asia Studies, 1993.
Books on International Criminal Law
• Antonio Cassese, International Criminal Law, Oxford and
New York: Oxford University Press, 2003.
• Geert-Jan Alexander Knoops, An Introduction to the Law of
International Criminal Tribunals: A Comparative Study,
Ardsley, NY: Transnational Publishers, 2003.
• Steven R. Ratner and Jason Abrams, Accountability for
Human Rights Atrocities in International Law: Beyond the
Nuremberg Legacy, Oxford and New York: Oxford
University Press, 2nd edition, 2001.
• Geoffrey Robertson, Crimes Against Humanity: The Struggle
for Global Justice, London and New York: Penguin Books,
new edition, 2002.
• William A. Schabas, An Introduction to the International
Criminal Court, London: Cambridge University Press,
2001.
• Henry J. Steiner and Philip Alston, International Human
Rights in Context: Law, Politics, Morals, New York: Oxford
University Press, 2000.
166
DC-Cam Monograph Series
• Meng-Try Ea and Sorya Sim, Victims and Perpetrators: The
Testimony of Young Khmer Rouge Cadres at S-21 (2001)
• Osman Ysa, Oukoubah: Genocide Justice for the Cham
Muslims under Democratic Kampuchea (2002).
• Vannak Huy, The Khmer Rouge Division 703: From Victory
to Self-Destruction (2003).
• Stephen P. Heder with Brian Tittemore, Seven Candidates
for Prosecution: Accountability for the Crimes of the Khmer
Rouge (2003).
• Suzannah Linton, Reconciliation in Cambodia (2004).
• Meng-Try Ea, The Chain of Terror: The Khmer Rouge
Southwest Zone Security System (2004).
• Wynne Cougill with Pivoine Pang, Chhayran Ra,
Sopheak Sim, Stilled Lives: Photographs from the Cambodian
Genocide (2004).
• George Chigas, Tum Teav: A Translation of a Cambodian
Literary Classic (2005).
• Osman Ysa, The Cham Rebellion: Survivors’ Stories from the
Villages (2006).
167
The ECCC Law
Law on the Establishment of Extraordinary Chambers in the
Courts of Cambodia for the Prosecution of Crimes Committed during
the Period of Democratic Kampuchea
Chapter I: General Provisions
Article 1:
The purpose of this law is to bring 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 17 April 1975 to 6 January 1979.
Chapter II: Competence
Article 2:
Extraordinary Chambers shall be established in the existing court structure, namely the trial court, the appeals court
and the supreme court to bring to trial senior leaders of
Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws
related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia,
that were committed during the period from 17 April 1975
to 6 January 1979
Senior leaders of Democratic Kampuchea and those who
were most responsible for the above acts are hereinafter designated as "Suspects".
Article 3:
The Extraordinary Chambers shall have the power to
bring to trial all Suspects who committed any of these crimes
set forth in the 1956 Penal Code of Cambodia, and which
were committed during the period from 17 April 1975 to 6
January 1979:
• Homicide (Article 501, 503, 504, 505, 506, 507 and 508)
• Torture (Article 500)
• Religious Persecution (Articles 209 and 210)
168
The statute of limitations set forth in the 1956 Penal
Code shall be extended for an additional 20 years for the
crimes enumerated above, which are within the jurisdiction
of the Extraordinary Chambers.
Article 4:
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.
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
as such:
• killing members of the group;
• causing serious bodily or mental harm to members of the
group;
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or
in part;
• imposing measures intended to prevent births within the
group;
• forcibly transferring children from one group to another
group.
The following acts shall be punishable under this Article:
• attempts to commit acts of genocide;
• conspiracy to commit acts of genocide;
• participation in acts of acts of genocide.
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 against any civilian population, on national,
political, ethnical, racial or religious grounds, such as:
169
•
•
•
•
•
•
•
•
•
murder;
extermination;
enslavement;
deportation;
imprisonment;
torture;
rape;
persecutions on political, racial, and religious grounds;
other inhuman acts.
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 Convention of
12 August 1949, such as the following acts against persons or
property protected under provisions of this Convention, and
which were committed during the period 17 April 1975 to 6
January 1979:
• willful killing;
• torture or inhumane treatment;
• willfully causing great suffering or serious injury to body
or health;
• destruction and serious damage to property, not justified
by military necessity and carried out unlawfully and wantonly;
• compelling a prisoner of war or a civilian to serve in the
forces of a hostile power;
• willfully depriving a prisoner of war or civilian the rights
of fair and regular trial;
• unlawful deportation or transfer or unlawful confinement
of a civilian;
• taking civilians as hostages.
Article 7:
The Extraordinary Chambers shall have the power to
bring to trial all Suspects responsible for the destruction of
cultural property during armed conflict pursuant to the 1954
Hague Convention for Protection of Cultural Property in the
Event of Armed Conflict, and which were committed during
the period from 17 April 1975 to 6 January 1979.
170
Article 8:
The Extraordinary Chambers shall have the power to
bring to trial all Suspects responsible for crimes against internationally protected persons pursuant to the Vienna
Convention of 1961 on Diplomatic Relations, and which
were committed during the period from 17 April 1975 to 6
January 1979.
Chapter III:
Composition of the Extraordinary Chambers
Article 9:
The trial court shall be an Extraordinary Chamber composed of five professional judges, of whom three are
Cambodian judges, with one as president, and two are foreign
judges; and before which the Co-Prosecutors shall present
their cases. The president shall appoint one or more clerks of
the court to participate.
The appeals court shall be an Extraordinary Chamber
shall be composed of seven judges, of whom four are
Cambodian judges, with one as president, and three are foreign judges; and before which the Co-Prosecutors shall present their cases. The president shall appoint one or more clerks
of the court to participate.
The supreme court shall be an Extraordinary Chamber
composed of nine judges, of whom five are Cambodian judges,
with one as president, and four are foreign judges; and before
which the Co-Prosecutors shall present their cases. The president shall appoint one or more clerks of the court to participate.
Chapter IV: Appointment of Judges
Article 10:
The judges of the Extraordinary Chambers shall be
appointed from among the existing judges or from judges who
are additionally appointed, in accordance with the existing
procedures for appointment of judges, who have high moral
character, a spirit of impartiality and integrity, and who are
experienced, particularly in criminal law or international law.
Judges shall be independent in the performance of their
functions, and shall not accept or seek any instructions from
any government or any other source.
171
Article 11:
The Supreme Council of the Magistracy shall appoint at
least twelve Cambodian judges to act as judges of the
Extraordinary Chambers, and shall appoint reserve judges as
needed, and shall also appoint the President of each of the
Extraordinary Chambers from the above Cambodian judges
so appointed, in accordance with the existing procedures for
appointment of judges.
The reserve Cambodian judges shall replace the regularly
appointed Cambodian judges in case of their absence or withdrawal. These reserve judges may continue to perform their
regular duties in their respective courts.
The Supreme Council of the Magistracy shall appoint at
least nine individuals of foreign nationality to act as foreign
judges of the Extraordinary Chambers upon nomination by
the Secretary-General of the United Nations.
The Secretary-General of the United Nations shall submit
a list of not less than twelve candidates for foreign judges to
the Royal Government of Cambodia, from which the Supreme
Council of the Magistracy shall appoint nine sitting judges
and three reserve judges. In addition to the foreign judges sitting in the Extraordinary Chambers and present at every stage
of the proceedings, the President of the Chamber may, on a
case-by-case basis, designate, one or more reserve judges
already appointed by the Supreme Council of the Magistracy
to be present at each stage of the trial, and to replace a foreign
judge if that judge is unable to continue sitting.
Article 12:
All judges under this law shall enjoy equal status and
rank according to each level of the Extraordinary Chambers.
Each judge under this law shall be appointed for the period of these proceedings.
Article 13:
Judges shall be assisted by Cambodian and international
staff as needed.
In choosing staff to serve as assistants and law clerks, the
Director of the Office of Administration shall interview if
necessary, and with the approval of the Cambodian judges by
majority vote, hire staff who shall be appointed by the Royal
172
Government of Cambodia. The Deputy Director of the Office
of Administration shall be responsible for the recruitment
and administration of all international staff. The number of
assistants and law clerks shall be chosen in proportion to the
Cambodian judges and foreign judges.
Cambodian staff shall be selected from Cambodian civil
servants or other qualified nationals of Cambodia, if necessary.
Chapter V: Decisions of the Extraordinary Chambers
Article 14:
1. The judges shall attempt to achieve unanimity in their
decisions. If this is not possible, the following shall apply:
a) a decision by the Extraordinary Chamber of the trial
court shall require the affirmative vote of at least four
judges.
b) a decision by the Extraordinary Chamber of the
appeals court shall require the affirmative vote of at
least five judges.
c) a decision by the Extraordinary Chamber of the
supreme court shall require the affirmative vote of at
least six judges.
2. When there is no unanimity, the decision of the
Extraordinary Chambers shall contain the views of the
majority and the minority.
Article 15:
The Presidents shall convene the appointed judges at the
appropriate time to proceed with the work of the
Extraordinary Chambers.
Chapter VI: Co-Prosecutors
Article 16:
All indictments in the Extraordinary Chambers shall be
made by two prosecutors, one Cambodian and another foreign, who shall work together as Co-Prosecutors to prepare
indictments against the Suspects in the Extraordinary
Chambers.
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Article 17:
The Co-Prosecutors in the trial court shall have the right
to appeal the verdict of the Extraordinary Chamber of the
trial court.
The Co-Prosecutors in the appeals court shall have the
right to appeal the decision of the Extraordinary Chamber of
the appeals court.
Article 18:
The Supreme Council of the Magistracy shall appoint
Cambodian prosecutors and Cambodian reserve prosecutors
as necessary from among the Cambodian professional judges.
The reserve prosecutors shall replace the regularly
appointed prosecutors in case of their absence or withdrawal.
These reserve prosecutors may continue to perform their regular duties in their respective courts. One foreign prosecutor
with the competence to appear in all three Extraordinary
Chambers shall be appointed by the Supreme Council of the
Magistracy upon nomination by the Secretary-General of the
United Nations.
The Secretary-General of the United Nations shall submit a list of at least two candidates for foreign Co-Prosecutor
to the Royal Government of Cambodia, from which the
Supreme Council of the Magistracy shall appoint one prosecutor and one reserve prosecutor.
Article 19:
The Co-Prosecutors shall be appointed from among those
individuals who are appointed in accordance with the existing procedures for selection of prosecutors who have high
moral character and integrity and who are experienced in the
conduct of investigations and prosecutions of criminal cases.
The Co-Prosecutors shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.
Article 20:
The Co-Prosecutors shall prosecute in accordance with
existing procedures in force. If necessary, and if there are lacunae in these existing procedures, the Co-Prosecutors may seek
guidance in procedural rules established at the international
level.
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In the event of disagreement between the Co-Prosecutors
the following shall apply:
The prosecution shall proceed unless the Co-Prosecutors
or one of them requests within thirty days that the difference
shall be settled in accordance with the following provisions.
The Co-Prosecutors shall submit written statements of
facts and the reasons for their different positions to the
Director of the Office of Administration.
The difference shall be settled forthwith by a Pre-Trial
Chamber of five judges, three appointed by the Supreme
Council of the Magistracy, with one as President, and two
appointed by the Supreme Council of the Magistracy upon
nomination by the Secretary-General of the United Nations.
Article 10 shall apply to the judges.
Upon receipt of the statements referred to in the third
paragraph, the Director of the Office of Administration shall
immediately convene the Pre-Trial Chamber and communicate the statements to its members.
A decision of the Pre-Trial Chamber, against which there is
no appeal, requires the affirmative vote of at least four judges.
The decision shall be communicated to the Director of the Office
of Administration, who shall publish it and communicate it to
the Co-Prosecutors. They shall immediately proceed in accordance with the decision of the Chamber. If there is no majority,
as required for a decision, the prosecution shall proceed.
In carrying out the prosecution, the Co-Prosecutors may
seek the assistance of the Royal Government of Cambodia if
such assistance would be useful to the prosecution, and such
assistance shall be provided.
Article 21:
The Co-Prosecutors under this law shall enjoy equal status and rank according to each level of the Extraordinary
Chambers.
Each Co-Prosecutor shall be appointed for the period of
these proceedings.
In the event of the absence or withdrawal of the foreign
Co-Prosecutor, he or she shall be replaced by the reserve
Prosecutor.
Article 22:
Each Co-Prosecutor shall have the right to choose one or
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more deputy prosecutors to assist him or her with prosecution before the chambers. Deputy foreign prosecutors shall be
appointed by the Supreme Council of the Magistracy from a
list provided by the Secretary-General.
The Co-prosecutors shall be assisted by Cambodian and
international staff as needed. In choosing staff to serve as
assistants, the Director of the Office of Administration shall
interview, if necessary, and with the approval of the
Cambodian Co-Prosecutor, hire staff who shall be appointed
by the Royal Government of Cambodia. The Deputy Director
of the Office of Administration shall be responsible for the
recruitment and administration of all foreign staff. The number of assistants shall be chosen in proportion to the
Cambodian judges and foreign judges.
Cambodian staff shall be selected from Cambodian civil servants and other qualified nationals of Cambodia, if necessary.
Chapter VII: Investigations
Article 23:
All investigations shall be the joint responsibility of two
investigating judges, one Cambodian and another foreign,
hereinafter referred to as Co-Investigating Judges in accordance with existing procedures in force. If necessary, and if
there are lacunae in these existing procedures, the CoInvestigating Judges may seek guidance in procedural rules
established at the international level.
In the event of disagreement between the Co-Investigating
Judges the following shall apply:
The investigation shall proceed unless the Co-Investigating
Judges or one of them requests within thirty days that the
difference shall be settled in accordance with the following
provisions.
The Co-Investigating Judges shall submit written statements of facts and the reasons for their different positions to
the Director of the Office of Administration.
The difference shall be settled forthwith by the Pre-Trial
Chamber referred to in Article 20.
Upon receipt of the statements referred to in the third
paragraph, the Director of the Office of Administration shall
immediately convene the Pre-Trial Chamber and communicate the statements to its members.
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A decision of the Pre-Trial Chamber, against which there
is no appeal, requires the affirmative vote of at least four
judges. The decision shall be communicated to the Director
of the Office of Administration, who shall publish it and
communicate it to the Co-Investigating Judges. They shall
immediately proceed in accordance with the decision of the
Pre-Trial Chamber. If there is no majority as required for a
decision, the investigation shall proceed.
The Co-Investigating Judges shall conduct investigations
on the basis of information obtained from any source, including the Government, United Nations organs, or non-governmental organizations.
The Co-Investigating Judges shall have the power to
question suspects, victims and witnesses, and to collect evidence in accordance with existing procedures in force. In the
event the Co-Investigating Judges consider it necessary to do
so, they may issue an order requesting the Co-Prosecutors to
interrogate the witnesses.
In carrying out the investigations, the Co-Investigating
Judges may seek the assistance of the Royal Government of
Cambodia, if such assistance would be useful to the investigation, and such assistance shall be provided.
Article 24:
During the investigation, Suspects shall be unconditionally entitled to assistance of counsel free of charge if they cannot
afford it, including the right to interpretation of the proceedings into and from a language they speak and understand.
Article 25:
The Co-Investigating Judges shall be appointed from
among the existing judges or from judges who are additionally appointed in accordance with the existing procedures for
appointment of judges, who have high moral character, a
spirit of impartiality and integrity, and who are experienced
in criminal investigations. They shall be independent in the
performance of their functions and shall not accept or seek
instructions from any government or any other source.
Article 26:
The Cambodian Co-Investigating Judge and the reserve
Investigating Judges shall be appointed by the Supreme
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Council of the Magistracy from among the Cambodian professional judges.
The reserve Investigating Judges shall replace the regularly appointed Investigating Judges in case of their absence
or withdrawal. The reserve Investigating Judges may continue to perform their regular duties in their respective courts.
The Supreme Council of the Magistracy shall appoint the
foreign Co-Investigating Judge for the period of investigations, upon nomination by the Secretary-General of the
United Nations.
The Secretary-General of the United Nations shall submit a list of at least two candidates for foreign CoInvestigating Judge to the Royal Government of Cambodia,
from which the Supreme Council of the Magistracy shall
appoint one sitting Investigating Judge and one reserve
Investigating Judge.
Article 27:
All Investigating Judges under this law shall enjoy equal
status and rank and the same terms and conditions of service.
Each Investigating Judge shall be appointed for the period of the investigation.
In the event of the absence or withdrawal of the foreign
Co-Investigating Judge, he or she shall be replaced by the
reserve Investigating Judge.
Article 28:
The Co-Investigating Judges shall be assisted by
Cambodian and international staff as needed.
In choosing staff to serve as assistants, the Director of the
Office of Administration shall comply with the provisions set
forth in Article 13 of this law.
Chapter VIII: Individual Responsibility
Article 29:
Any Suspect who planned, instigated, ordered, aided and
abetted, or committed the crimes referred to in article 3, 4,
5, 6, 7 and 8 of this law shall be individually responsible for
the crime.
The position or rank of any Suspect shall not relieve such
person of criminal responsibility or mitigate punishment.
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The fact that any of the acts referred to in Articles 3, 4, 5,
6, 7 and 8 of this law were committed by a subordinate does
not relieve the superior of personal criminal responsibility if
the superior had effective command and control or authority
and control over the subordinate, and the superior knew or
had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take
the necessary and reasonable measures to prevent such acts or
to punish the perpetrators.
The fact that a Suspect acted pursuant to an order of the
Government of Democratic Kampuchea or of a superior shall
not relieve the Suspect of individual criminal responsibility.
Chapter IX: Office of Administration
Article 30:
The staff of the judges, the investigating judges and prosecutors of the Extraordinary Chambers shall be supervised by
an Office of Administration.
The Office of Administration shall have a Cambodian
Director, a foreign Deputy Director and such other staff as
necessary.
Article 31:
The Director of the Office of Administration shall be
appointed by the Royal Government of Cambodia for a two
year term and shall be eligible for reappointment.
The Director of the Office of Administration shall be
responsible for the overall management of the Office of
Administration.
The Director of the Office of Administration shall be
appointed from those with significant experience in court
administration, be fluent in one of the foreign languages used
in the Extraordinary Chambers, and be a person of high moral
character and integrity. The foreign Deputy Director shall be
nominated by the Secretary-General of the United Nations
and appointed by the Royal Government of Cambodia, and
shall be responsible for the recruitment and administration of
all foreign staff, as required by the international components
of the Extraordinary Chambers, the Co-Investigating Judges,
the Co-Prosecutors' Office, and the Office of Administration.
The Deputy Director shall administer the resources allotted
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against the United Nations Trust Fund.
The Office of Administration shall be assisted by
Cambodian and foreign staff as necessary. All Cambodian
staff of the Office of Administration shall be appointed by the
Royal Government of Cambodia at the request of the
Director. Foreign staff shall be appointed by the Deputy
Director.
Cambodian staff shall be selected from the Cambodian
civil service system and, if necessary, other qualified nationals
of Cambodia.
Article 32:
All staff assigned to the judges, Co-Investigating Judges,
Co-Prosecutors, and Office of Administration shall enjoy the
same working conditions according to each level of the
Extraordinary Chambers.
Chapter X:
Trial Proceedings of the Extraordinary Chambers
Article 33:
The Extraordinary Chambers of the trial court shall
ensure that trials are fair and expeditious and are conducted
in accordance with existing procedures in force, with full
respect for the rights of the accused and for the protection of
victims and witnesses. If necessary, and if there are lacunae in
these existing procedures, guidance may be sought in procedural rules established at the international level.
Suspects who have been indicted and arrested shall be
brought to the trial court according to existing procedures in
force. The Royal Government of Cambodia shall guarantee
the security of the Suspects who appear voluntarily before the
court and is responsible in taking measures for the arrest of
the Suspects prosecuted under this law. Justice police shall be
assisted by other law enforcement elements of the Royal
Government of Cambodia, including its armed forces, in
order to ensure that accused persons are brought into custody
immediately.
Conditions for the arrest and the custody of the accused
shall conform to existing law in force.
The Court shall provide for the protection of victims and
witnesses. Such protection measures shall include, but shall
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be not limited to, the conduct of in camera proceedings and
the protection of the victim's identity.
Article 34:
Trials shall be public unless in exceptional circumstances
the Extraordinary Chambers decide to close the proceedings
for good cause in accordance with existing procedures in force.
Article 35:
The accused shall be presumed innocent until proven
guilty.
In determining charges against the accused, the accused
shall be entitled to the following minimum guarantees, in
equal fashion:
a) To be informed promptly and in detail in a language that
they understand of the nature and cause of the charge
against them;
b) To have adequate time to be prepared and contact their
counsel;
c) To be tried without delay;
d) To defend themselves or with the assistance of their counsel;
e) To examine evidence against them and obtain the attendance and examination of evidence on their behalf under
the same conditions as evidence against them;
f) To have the free assistance of an interpreter if the accused
cannot understand or does not speak the language used in
the court;
g) Not to be compelled to testify against themselves or to
confess guilt.
Article 36:
The Extraordinary Chamber of the appeals court shall
decide the appeals from the accused persons, the victims, or
by the Co-Prosecutors on the following grounds:
• an error of fact;
• an error of law.
The Extraordinary Chamber of the appeals court shall
review the decision of the Extraordinary Chamber of the trial
court and may affirm, reverse or modify the decision. In this
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case, the Extraordinary Chamber of the appeals court may
apply existing procedures in force. If necessary, and if there are
lacunae in these existing procedures, guidance may be sought
in procedural rules established at the international level.
Article 37:
The Extraordinary Chamber of the supreme court shall
decide appeals made by the accused, the victims, or the CoProsecutors against the decision of the Extraordinary Chamber
of the appeals court. In this case, the supreme court shall make
final decisions on both issues of law and fact, and shall not return
the case to the Extraordinary Chamber of the appeals court.
Chapter XI: Penalties
Article 38:
All penalties shall be limited to imprisonment.
Article 39:
Those who have committed crimes as provided in Articles
3, 4, 5, 6, 7 and 8 shall be sentenced to a prison term from
five years to life imprisonment.
In addition to imprisonment, the Extraordinary Chamber
of the trial court may order the confiscation of personal property, money, and real property acquired unlawfully or by
criminal conduct.
The confiscated property shall be returned to the State.
Chapter XII: Amnesty and Pardons
Article 40:
The Royal Government of Cambodia shall not request an
amnesty or pardon for any persons who may be investigated
for or convicted of crimes referred to in Articles 3, 4, 5, 6, 7
and 8 of this law.
Chapter XIII:
Status, Rights, Privileges and Immunities
Article 41:
The foreign judges, the foreign Co-Investigating Judge,
the foreign Co-Prosecutor and the Deputy Director of the
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Office of Administration, together with their families forming part of their household, shall enjoy all of the privileges
and immunities, exemptions and facilities accorded to diplomatic agents in accordance with the 1961 Vienna Convention
on Diplomatic Relations. Such officials shall enjoy exemption
from taxation in Cambodia on their salaries, emoluments and
allowances.
Article 42
1. Cambodian personnel shall be accorded immunity from
legal process in respect of words spoken or written and all
acts performed by them in their official capacity.
2. Foreign personnel shall be accorded, in addition:
a. immunity from legal process in respect of words spoken or written and all acts performed by them in their
official capacity.
b. immunity from taxation on salaries, allowances and
emoluments paid to them by contributing States of
the United Nations Trust Fund;
c. immunity from immigration restriction;
d. the right to import free of duties and taxes, except for
payment for services, their furniture and effects at the
time of first taking up their official duties in Cambodia.
3. The counsel of a suspect or an accused who has been
admitted as such by the Extraordinary Chambers shall not
be subjected by the Government to any measure that may
affect the free and independent exercise of his or her functions under the Law on the Establishment of the
Extraordinary Chambers. In particular, the counsel shall
be accorded:
a. immunity from personal arrest or detention and from
seizure of personal baggage while fulfilling his or her
functions in the proceedings;
b. inviolability of all documents relating to the exercise
of his or her functions as a counsel of a suspect or
accused;
c. immunity from criminal or civil jurisdiction in
respect of words spoken or written and acts performed
by them in their official capacity.
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4. The archives of the court, and in general all documents
and materials made available, belonging to, or used by it,
wherever located in the Kingdom of Cambodia and by
whomsoever held, shall be inviolable for the duration of
the proceedings.
Chapter XIV: Location of the Extraordinary Chambers
Article 43:
The Extraordinary Chambers established in the trial
court, the appeals court and the supreme court shall be located in Phnom Penh.
Chapter XV: Expenses and Salaries
Article 44:
The expenses and salaries of the Extraordinary Chambers
shall be as follows:
1. The expenses and salaries of the Cambodian administrative officials and staff, the Cambodian judges and reserve
judges, the Cambodian investigating judges and reserve
investigating judges, and the Cambodian prosecutors and
reserve prosecutors shall be borne by the Cambodian
national budget.
2. The expenses of the foreign administrative officials and
staff, the foreign judges, the foreign Co-investigating
judge and the foreign Co-prosecutor sent by the
Secretary-General of the United Nations shall be borne by
the United Nations Trust Fund.
3. The salaries of the foreign administrative officials and
staff, the foreign judges, the foreign Co-Investigating
Judge and the foreign Co-Prosecutor shall be borne by the
countries that contribute them at the request of the
Secretary-General of the United Nations.
4. The defence counsel may receive fees for mounting the
defence;
5. The Extraordinary Chambers may receive additional
assistance for their expenses from other voluntary funds
contributed by foreign governments, international institutions, non-governmental organisations, and other persons wishing to assist the proceedings.
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Chapter XVI: Working Language
Article 45:
The official working language of the Extraordinary
Chambers shall be Khmer, with translations into English,
French and Russian.
Chapter XVII:
Absence of Foreign Judges or Co-Prosecutors
Article 46:
In order to ensure timely and smooth implementation of
this law, in the event any foreign judges or foreign investigating judges or foreign prosecutors fail or refuse to participate
in the Extraordinary Chambers, the Supreme Council of the
Magistracy shall appoint other judges or investigating judges
or prosecutors to fill any vacancies from the lists of foreign
candidates provided for in Article 11, Article 18, and Article
26. In the event those lists are exhausted, any such vacancies
shall be filled by the Supreme Council of the Magistracy from
candidates recommended by the Governments of Member
States of the United Nations or from among other foreign
legal personalities.
If, following such procedures, there are still no foreign
judges or foreign investigating judges or foreign prosecutors
participating in the work of the Extraordinary Chambers and
no foreign candidates have been identified to occupy the
vacant positions, then the Supreme Council of the Magistracy
may choose replacement Cambodian judges, investigating
judges or prosecutors.
Chapter XVIII: Existence of the Court
Article 47:
The Extraordinary Chambers in the courts of Cambodia
shall be dissolved following the conclusion of these proceedings.
Final Provision
Article 48:
This law shall be proclaimed as urgent.
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The UN-RGC Agreement
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 (2003).
WHEREAS the General Assembly of the United Nations,
in its resolution 57/228 of 18 December 2002, recalled that
the serious violations of Cambodian and international humanitarian law during the period of Democratic Kampuchea from
1975 to 1979 continue to be matters of vitally important concern to the international community as a whole;
WHEREAS in the same resolution the General Assembly
recognized the legitimate concern of the Government and the
people of Cambodia in the pursuit of justice and national reconciliation, stability, peace and security;
WHEREAS the Cambodian authorities have requested
assistance from the United Nations 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 17
April 1975 to 6 January 1979;
WHEREAS prior to the negotiation of the present
Agreement substantial progress had been made by the
Secretary-General of the United Nations (hereinafter, "the
Secretary-General") and the Royal Government of Cambodia
towards the establishment, with international assistance, of
Extraordinary Chambers within the existing court structure
of Cambodia for the prosecution of crimes committed during
the period of Democratic Kampuchea;
WHEREAS by its resolution 57/228, the General
Assembly welcomed the promulgation of 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 and requested the
186
Secretary-General to resume negotiations, without delay, to
conclude an agreement with the Government, based on previous negotiations on the establishment of the Extraordinary
Chambers consistent with the provisions of the said resolution, so that the Extraordinary Chambers may begin to function promptly;
WHEREAS the Secretary-General and the Royal
Government of Cambodia have held negotiations on the
establishment of the Extraordinary Chambers;
NOW THEREFORE the United Nations and the Royal
Government of Cambodia have agreed as follows:
Article 1: Purpose
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 17 April 1975 to 6 January
1979. The Agreement provides, inter alia, the legal basis and
the principles and modalities for such cooperation.
Article 2:
The Law on the Establishment of Extraordinary Chambers
1. 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.
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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.
3. 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.
Article 3: Judges
1. 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.
2. The composition of the Chambers shall be 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.
3. The judges shall be persons of high moral character,
impartiality and integrity who possess the qualifications
required in their respective countries for appointment to
judicial offices. They shall be independent in the performance of their functions and shall not accept or seek
instructions from any Government or any other source.
4. In the overall composition of the Chambers due account
should be taken of the experience of the judges in criminal law, international law, including international
humanitarian law and human rights law.
5. The Secretary-General of the United Nations undertakes
to forward a list of not less than seven nominees for international judges from which the Supreme Council of the
Magistracy shall appoint five to serve as judges in the two
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Chambers. Appointment of international judges by the
Supreme Council of the Magistracy shall be made only
from the list submitted by the Secretary-General.
6. In the event of a vacancy of an international judge, the
Supreme Council of the Magistracy shall appoint another
international judge from the same list.
7. The judges shall be appointed for the duration of the proceedings.
8. In addition to the international judges sitting in the
Chambers and present at every stage of the proceedings, the
President of a Chamber may, on a case-by-case basis, designate from the list of nominees submitted by the SecretaryGeneral, one or more alternate judges to be present at each
stage of the proceedings, and to replace an international
judge if that judge is unable to continue sitting.
Article 4: Decision-making
1. 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;
b. A decision by the Supreme Court Chamber shall
require the affirmative vote of at least five judges.
2. When there is no unanimity, the decision of the Chamber
shall contain the views of the majority and the minority.
Article 5: Investigating judges
1. There shall be one Cambodian and one international
investigating judge serving as co-investigating judges.
They shall be responsible for the conduct of investigations.
2. The co-investigating judges shall be persons of high
moral character, impartiality and integrity who possess
the qualifications required in their respective countries
for appointment to such a judicial office.
3. The co-investigating judges shall be independent in the
performance of their functions and shall not accept or seek
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instructions from any Government or any other source. It
is understood, however, that the scope of the investigation
is limited to 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 17 April 1975 to 6 January 1979.
4. The co-investigating judges shall cooperate with a view
to arriving at a common approach to the investigation. In
case the co-investigating judges are unable to agree
whether to proceed with an investigation, the investigation shall proceed unless the judges or one of them
requests within thirty days that the difference shall be
settled in accordance with Article 7.
5. In addition to the list of nominees provided for in Article
3, paragraph 5, the Secretary-General shall submit a list
of two nominees from which the Supreme Council of the
Magistracy shall appoint one to serve as an international
co-investigating judge, and one as a reserve international
co-investigating judge.
6. In case there is a vacancy or a need to fill the post of the
international co-investigating judge, the person appointed to fill this post must be the reserve international coinvestigating judge.
7. The co-investigating judges shall be appointed for the
duration of the proceedings.
Article 6: Prosecutors
1. There shall be one Cambodian prosecutor and one international prosecutor competent to appear in both
Chambers, serving as co-prosecutors. They shall be
responsible for the conduct of the prosecutions.
2. The co-prosecutors shall be of high moral character, and
possess a high level of professional competence and extensive experience in the conduct of investigations and prosecutions of criminal cases.
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3. The co-prosecutors shall be independent in the performance of their functions and shall not accept or seek
instructions from any Government or any other source. It
is understood, however, that the scope of the prosecution
is limited to 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 17 April 1975 to 6 January 1979.
4. The co-prosecutors shall cooperate with a view to arriving
at a common approach to the prosecution. In case the
prosecutors are unable to agree whether to proceed with a
prosecution, the prosecution shall proceed unless the
prosecutors or one of them requests within thirty days
that the difference shall be settled in accordance with
Article 7.
5. The Secretary-General undertakes to forward a list of two
nominees from which the Supreme Council of the
Magistracy shall select one international co-prosecutor
and one reserve international co-prosecutor.
6. In case there is a vacancy or a need to fill the post of the
international co-prosecutor, the person appointed to fill
this post must be the reserve international co-prosecutor.
7. The co-prosecutors shall be appointed for the duration of
the proceedings.
8. Each co-prosecutor shall have one or more deputy prosecutors to assist him or her with prosecutions before the
Chambers. Deputy international prosecutors shall be
appointed by the international co-prosecutor from a list
provided by the Secretary-General.
Article 7: Settlement of differences between the co-investigating
judges or the co-prosecutors
1. In case the co-investigating judges or the co-prosecutors
have made a request in accordance with Article 5, paragraph 4, or Article 6, paragraph 4, as the case may be,
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they shall submit written statements of facts and the reasons for their different positions to the Director of the
Office of Administration.
2. The difference shall be settled forthwith by a Pre-Trial
Chamber of five judges, three appointed by the Supreme
Council of the Magistracy, with one as President, and two
appointed by the Supreme Council of the Magistracy
upon nomination by the Secretary-General. Article 3,
paragraph 3, shall apply to the judges.
3. Upon receipt of the statements referred to in paragraph 1,
the Director of the Office of Administration shall immediately convene the Pre-Trial Chamber and communicate
the statements to its members.
4. A decision of the Pre-Trial Chamber, against which there
is no appeal, requires the affirmative vote of at least four
judges. The decision shall be communicated to the
Director of the Office of Administration, who shall publish it and communicate it to the co-investigating judges
or the co-prosecutors. They shall immediately proceed in
accordance with the decision of the Chamber. If there is
no majority, as required for a decision, the investigation
or prosecution shall proceed.
Article 8: Office of Administration
1. There shall be an Office of Administration to service the
Extraordinary Chambers, the Pre-Trial Chamber, the coinvestigating judges and the Prosecutors’ Office.
2. There shall be a Cambodian Director of this Office, who
shall be appointed by the Royal Government of Cambodia.
The Director shall be responsible for the overall management of the Office of Administration, except in matters
that are subject to United Nations rules and procedures.
3. There shall be an international Deputy Director of the
Office of Administration, who shall be appointed by the
Secretary-General. The Deputy Director shall be responsible for the recruitment of all international staff and all
administration of the international components of the
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Extraordinary Chambers, the Pre-Trial Chamber, the coinvestigating judges, the Prosecutors’ Office and the
Office of Administration. The United Nations and the
Royal Government of Cambodia agree that, when an
international Deputy Director has been appointed by the
Secretary-General, the assignment of that person to that
position by the Royal Government of Cambodia shall
take place forthwith.
4. The Director and the Deputy Director shall cooperate in
order to ensure an effective and efficient functioning of
the administration.
Article 9: Crimes falling within the jurisdiction of the
Extraordinary Chambers
The subject-matter jurisdiction of the Extraordinary
Chambers shall be the crime of genocide as defined in the
1948 Convention on the Prevention and Punishment of the
Crime of Genocide, crimes against humanity as defined in the
1998 Rome Statute of the International Criminal Court and
grave breaches of the 1949 Geneva Conventions and such
other crimes as defined in Chapter II of the Law on the
Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.
Article 10: Penalties
The maximum penalty for conviction for crimes falling
within the jurisdiction of the Extraordinary Chambers shall
be life imprisonment.
Article 11: Amnesty
1. The Royal Government of Cambodia shall not request an
amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present
Agreement.
2. This provision is based upon a declaration by the Royal
Government of Cambodia that until now, with regard to
matters covered in the law, there has been only one case,
dated 14 September 1996, when a pardon was granted to
only one person with regard to a 1979 conviction on the
charge of genocide. The United Nations and the Royal
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Government of Cambodia agree that the scope of this pardon is a matter to be decided by the Extraordinary
Chambers.
Article 12: Procedure
1. 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.
2. The Extraordinary Chambers shall exercise their jurisdiction 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 SecretaryGeneral, 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.
Article 13: Rights of the accused
1. The rights of the accused enshrined in Articles 14 and 15
of the 1966 International Covenant on Civil and Political
Rights shall be respected throughout the trial process.
Such rights shall, in particular, include the right: to a fair
and public hearing; to be presumed innocent until proved
guilty; to engage a counsel of his or her choice; to have
adequate time and facilities for the preparation of his or
her defence; to have counsel provided if he or she does not
have sufficient means to pay for it; and to examine or have
examined the witnesses against him or her.
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2. The United Nations and the Royal Government of
Cambodia agree that the provisions on the right to
defence counsel in the Law on the Establishment of
Extraordinary Chambers mean that the accused has the
right to engage counsel of his or her own choosing as
guaranteed by the International Covenant on Civil and
Political Rights.
Article 14: Premises
The Royal Government of Cambodia shall provide at its
expense the premises for the co-investigating judges, the
Prosecutors’ Office, the Extraordinary Chambers, the PreTrial Chamber and the Office of Administration. It shall also
provide for such utilities, facilities and other services necessary for their operation that may be mutually agreed upon by
separate agreement between the United Nations and the
Government.
Article 15: Cambodian personnel
Salaries and emoluments of Cambodian judges and other
Cambodian personnel shall be defrayed by the Royal
Government of Cambodia.
Article 16: International personnel
Salaries and emoluments of international judges, the
international co-investigating judge, the international coprosecutor and other personnel recruited by the United
Nations shall be defrayed by the United Nations.
Article 17: Financial and other assistance of the United Nations
The United Nations shall be responsible for the following:
a. remuneration of the international judges, the international co-investigating judge, the international coprosecutor, the Deputy Director of the Office of
Administration and other international personnel;
b. costs for utilities and services as agreed separately
between the United Nations and the Royal
Government of Cambodia;
c. remuneration of defence counsel;
d. witnesses’ travel from within Cambodia and from
abroad;
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e. safety and security arrangements as agreed separately
between the United Nations and the Government;
f. such other limited assistance as may be necessary to
ensure the smooth functioning of the investigation,
the prosecution and the Extraordinary Chambers.
Article 18: Inviolability of archives and documents
The archives of the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber
and the Office of Administration, and in general all documents and materials made available, belonging to or used by
them, wherever located in Cambodia and by whomsoever
held, shall be inviolable for the duration of the proceedings.
Article 19:
Privileges and immunities of international judges, the international
co-investigating judge, the international co-prosecutor and the
Deputy Director of the Office of Administration
1. The international judges, the international co-investigating judge, the international co-prosecutor and the
Deputy Director of the Office of Administration, together with their families forming part of their household,
shall enjoy the privileges and immunities, exemptions
and facilities accorded to diplomatic agents in accordance
with the 1961 Vienna Convention on Diplomatic
Relations. They shall, in particular, enjoy:
a. personal inviolability, including immunity from
arrest or detention;
b. immunity from criminal, civil and administrative jurisdiction in conformity with the Vienna Convention;
c. inviolability for all papers and documents;
d. exemption from immigration restrictions and alien
registration;
e. the same immunities and facilities in respect of their
personal baggage as are accorded to diplomatic agents.
2. The international judges, the international co-investigating judge, the international co-prosecutor and the
Deputy Director of the Office of Administration shall
enjoy exemption from taxation in Cambodia on their
salaries, emoluments and allowances.
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Article 20:
Privileges and immunities of Cambodian and international personnel
1. Cambodian judges, the Cambodian co-investigating
judge, the Cambodian co-prosecutor and other
Cambodian personnel shall be accorded immunity from
legal process in respect of words spoken or written and all
acts performed by them in their official capacity under
the present Agreement. Such immunity shall continue to
be accorded after termination of employment with the coinvestigating judges, the co-prosecutors, the Extraordinary
Chambers, the Pre-Trial Chamber and the Office of
Administration.
2. International personnel shall be accorded:
a. immunity from legal process in respect of words spoken or written and all acts performed by them in their
official capacity under the present Agreement. Such
immunity shall continue to be accorded after termination of employment with the co-investigating judges,
the co-prosecutors, the Extraordinary Chambers, the
Pre-Trial Chamber and the Office of Administration;
b. immunity from taxation on salaries, allowances and
emoluments paid to them by the United Nations;
c. immunity from immigration restrictions;
d. the right to import free of duties and taxes, except for
payment for services, their furniture and effects at the
time of first taking up their official duties in Cambodia.
3. The United Nations and the Royal Government of
Cambodia agree that the immunity granted by the Law
on the Establishment of the Extraordinary Chambers in
respect of words spoken or written and all acts performed
by them in their official capacity under the present
Agreement will apply also after the persons have left the
service of the co-investigating judges, the co-prosecutors,
the Extraordinary Chambers, the Pre-Trial Chamber and
the Office of Administration.
Article 21: Counsel
1. The counsel of a suspect or an accused who has been admitted as such by the Extraordinary Chambers shall not be
subjected by the Royal Government of Cambodia to any
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measure which may affect the free and independent exercise
of his or her functions under the present Agreement.
2. In particular, the counsel shall be accorded:
a. immunity from personal arrest or detention and from
seizure of personal baggage;
b. inviolability of all documents relating to the exercise of
his or her functions as a counsel of a suspect or accused;
c. immunity from criminal or civil jurisdiction in respect
of words spoken or written and acts performed by them
in their official capacity as counsel. Such immunity
shall continue to be accorded to them after termination
of their functions as a counsel of a suspect or accused.
3. Any counsel, whether of Cambodian or non-Cambodian
nationality, engaged by or assigned to a suspect or an
accused shall, in the defence of his or her client, act in
accordance with the present Agreement, the Cambodian
Law on the Statutes of the Bar and recognized standards
and ethics of the legal profession.
Article 22: Witnesses and experts
Witnesses and experts appearing on a summons or a
request of the judges, the co-investigating judges, or the coprosecutors shall not be prosecuted, detained or subjected to
any other restriction on their liberty by the Cambodian
authorities. They shall not be subjected by the authorities to
any measure which may affect the free and independent exercise of their functions.
Article 23: Protection of victims and witnesses
The co-investigating judges, the co-prosecutors and the
Extraordinary Chambers shall provide for the protection of
victims and witnesses. Such protection measures shall include,
but shall not be limited to, the conduct of in camera proceedings and the protection of the identity of a victim or witness.
Article 24: Security, safety and protection of persons referred to in
the present Agreement
The Royal Government of Cambodia shall take all effective
and adequate actions which may be required to ensure the
security, safety and protection of persons referred to in the pres198
ent Agreement. The United Nations and the Govern-ment
agree that the Government is responsible for the security of all
accused, irrespective of whether they appear voluntarily before
the Extraordinary Chambers or whether they are under arrest.
Article 25: Obligation to assist the co-investigating judges, the
co-prosecutors and the Extraordinary Chambers
The Royal Government of Cambodia shall comply without
undue delay with any request for assistance by the co-investigating judges, the co-prosecutors and the Extraordinary
Chambers or an order issued by any of them, including, but not
limited to:
a.
b.
c.
d.
identification and location of persons;
service of documents;
arrest or detention of persons;
transfer of an indictee to the Extraordinary Chambers.
Article 26: Languages
1. The official language of the Extraordinary Chambers and
the Pre-Trial Chamber is Khmer.
2. The official working languages of the Extraordinary
Chambers and the Pre-Trial Chamber shall be Khmer,
English and French.
3. Translations of public documents and interpretation at
public hearings into Russian may be provided by the
Royal Government of Cambodia at its discretion and
expense on condition that such services do not hinder the
proceedings before the Extraordinary Chambers.
Article 27: Practical arrangements
1. With a view to achieving efficiency and cost-effectiveness in
the operation of the Extraordinary Chambers, a phased-in
approach shall be adopted for their establishment in accordance with the chronological order of the legal process.
2. In the first phase of the operation of the Extraordinary
Chambers, the judges, the co-investigating judges and
the co-prosecutors will be appointed along with investigative and prosecutorial staff, and the process of investigations and prosecutions shall be initiated.
199
3. The trial process of those already in custody shall proceed
simultaneously with the investigation of other persons
responsible for crimes falling within the jurisdiction of
the Extraordinary Chambers.
4. With the completion of the investigation of persons suspected of having committed the crimes falling within the
jurisdiction of the Extraordinary Chambers, arrest warrants shall be issued and submitted to the Royal
Government of Cambodia to effectuate the arrest.
5. With the arrest by the Royal Government of Cambodia of
indicted persons situated in its territory, the
Extraordinary Chambers shall be fully operational, provided that the judges of the Supreme Court Chamber
shall serve when seized with a matter. The judges of the
Pre-Trial Chamber shall serve only if and when their services are needed.
Article 28: Withdrawal of cooperation
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.
Article 29: Settlement of disputes
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.
Article 30: Approval
To be binding on the parties, the present Agreement
must be approved by the General Assembly of the United
Nations and ratified by Cambodia. The Royal Government of
Cambodia will make its best endeavours to obtain this ratification by the earliest possible date.
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Article 31: Application within Cambodia
The present Agreement shall apply as law within the
Kingdom of Cambodia following its ratification in accordance
with the relevant provisions of the internal law of the Kingdom
of Cambodia regarding competence to conclude treaties.
Article 32: Entry into force
The present Agreement shall enter into force on the day after
both parties have notified each other in writing that the legal
requirements for entry into force have been complied with.
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Ieng Thirith and a foreign delegation
202
Khieu Samphan, Thiounn Prasit and a Burmese delegation
led by President Ne Win
203
Author posted with the mother of Kaing Guek Eav, better known as Duch,
the former Khmer Rouge security chief at the infamous Tuol Sleng Prison
(S-21); Kim Siev, and his younger sister, Kim Hiev.
Kampong Thom Province
Photo by: Eng Kok Thay
Between April 1975 and January 1979, the radical
Khmer Rouge regime subjected Cambodians to a wave
of atrocities that left over one in four Cambodians dead. For nearly three decades, calls for justice went
unanswered, and the architects of Khmer Rouge terror
enjoyed almost unfettered impunity. Only recently has
a tribunal been established to put surviving Khmer
Rouge officials on trial. This edited volume examines
the origins, evolution, and features of the Khmer
Rouge Tribunal. It provides a concise overview of legal
and political issues surrounding the tribunal and
answers key questions about the accountability process. It explains why the tribunal took so many years to
create and why it became a “hybrid” court with
Cambodian and international participation. It also
assesses the laws and procedures governing the
proceedings and the likely evidence available against
Khmer Rouge defendants. Finally, it discusses how the
tribunal can most effectively advance the aims of justice
and reconciliation in Cambodia and help to dispel the
shadows of the past. ISBN:
99950-60-02-7
ISBN:
99950-60-02-7
9 789995
060022
9 789995
060022