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Summary
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The structure of the EC is
determined by both the
2003 Agreement and the
2001 Law, as amended in 2004.
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Investigations are carried out
by international and Cambodian co-prosecutors and
co-investigating judges.
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Any disagreement between them
is settled by a ‘Pre-trial Chamber’.
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Cases are brought for trial
before the ‘Extraordinary Chamber’ of the Phnom Penh Municipal
Court.
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A single appeal lies directly
to the ‘Extraordinary Chamber’ of the Supreme Court.
Legal Status:
Domestic Courts
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The EC
are Cambodian courts established by the Amended 2001 Law, as
specialised chambers within the existing judicial hierarchy.
They are not international courts: the 2003 Agreement mainly
covers international cooperation with the EC and respect for
international standards.
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Since both documents have the
status of law in Cambodia, it is unclear which should prevail in
case of conflict. However, at least as regards international
participation, the 2003 Agreement (an international treaty)
should prevail.
Nature of international
participation
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Investigation stage:
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two
co-prosecutors with identical powers, one international and
one Cambodian
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two
co-investigating judges with identical powers, one
international and one Cambodian
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a
Pre-trial Chamber to resolve any disputes between the
co-prosecutors or the co-investigating judges (same
structure as the Trial Chamber – except that a ‘super
majority’ is needed to block a decision)
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Trial
stage:
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Trial
Chamber: 5 judges, 2 international and 3 Cambodian
(including the presiding judge) Decisions require a ‘super
majority’ of at least 4 judges
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Appeals Chamber: 7 judges, 3 international and 4 Cambodian
(including the presiding judge) Decisions require a ‘super
majority’ of at least 5 judges
Organisation of international participation
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In accordance with the
Cambodian Constitution, the Supreme Council of the Magistracy
appoints all Cambodian judges, as well as international judicial
personnel ‘upon nomination by the Secretary-General of the
United Nations’, from lists provided by the latter: for details
of UN nominees, see:
http://www.un.org/law/khmerrougetrials/.
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A Cambodian Director of the
Office of Administration, Sean Visoth, is seconded by an
international Deputy Director, Michelle Lee (both officially
appointed on 24 November 2005).
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All other international
positions are posted on the
UN recruitment website (select Duty Station = Phnom Penh)
Subject
matter jurisdiction
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International crimes:
Genocide; Crimes against Humanity; Grave breaches of the 1949
Geneva Conventions (war crimes); 1954 Hague Convention on the
protection of Cultural Property; 1961 Vienna Convention on
Diplomatic Relations (Amended 2001 Law, Arts. 4 to 8).
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Serious crimes under Cambodian
law (1956
Penal Code): homicide, torture, religious persecution
(Amended 2001 Law, Art. 3).
Personal jurisdiction
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The EC have personal jurisdiction over two
overlapping groups of people:
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Estimates
of the number of people falling within these criteria vary,
however, the EC will not have a sufficient budget to try large
numbers of people. For a study of potential accused amongst
"senior leaders" see: S. Heder,
Seven Candidates for Prosecution: Accountability for the Crimes
of the Khmer Rouge
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Two
people are currently in pre-trial detention:
Temporal jurisdiction
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The
temporal jurisdiction of the EC is strictly limited to
the period from 17
April 1975 to 6 January 1979, during which the Democratic
Kampuchea regime was in power.
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Important to apply the
definitions of crimes at the time of the crimes : nullum
crimen sine lege principle
Territorial jurisdiction
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The territorial jurisdiction
of the EC is not specified.
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The Chambers will thus have to
decide whether to try all the crimes coming within their
jurisdiction, regardless of where they were committed (as in
Sierra Leone), or to apply existing Cambodian law, which appears
to restrict jurisdiction to crimes committed in Cambodia.
Other
Procedure:
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Procedure will follow Cambodian law (this may include the draft
Code of criminal procedure currently under discussion if it is
adopted in time).
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However,
the EC are
authorised to seek guidance in ‘procedural rules established
at the international level’ 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’
[2003 Agreement, Art. 12(1)].
Victims:
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Under
Cambodian law, victims have the right to be joined as civil
parties to criminal proceedings, in order to participate in the
trial and claim damages. These rights should be respected before
the EC.
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For more
information on Khmer Rouge victims rights, see the
CARIECJ website ("current activities" section);
Victims’ Rights Working Group Bulletin No. 5 (2006); or
David Boyle, "The Rights of Victims, Participation,
Representation, Protection, Reparation", Symposium on Khmer
Rouge trials,
Journal of International Criminal Justice (2006) (abstract
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article).
Associated truth and
reconciliation process
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There is
no official truth process in Cambodia
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However,
a US funded NGO, the Documentation Center of Cambodia is
conducting extensive research in this field: see the
DC-Cam website
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