Julie Kornfeld, Associate Editor, Michigan Journal of International Law
On August 7, 2014 the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘the ECCC’) entered a historic verdict for Cambodian and international jurisprudence. The ECCC found two defendants guilty of crimes against humanity, persecution on political grounds, and other inhumane acts.[i] The defendants, Nuon Chea, the Deputy Secretary of the Communist Party of Kampuchea (CPK), and Khieu Samphan, the Head of State of the CPK, were sentenced to life imprisonment.[ii] This case, known as 002-1, marks the second time the ECCC has reached a guilty verdict.[iii] The verdict brings long awaited justice to Cambodians who have waited 35 years for a conviction to affirm that Khmer Rouge leaders were complicit in some of the worst human rights abuses of the second half of the 20th century. The verdict also has implications outside Cambodia’s borders. As one of the few examples of an alternative mixed tribunal, the ECCC shows how international and domestic criminal law can successfully interact with each other.
The ECCC is a hybrid criminal court that involves shared duties between the United Nations and the Royal Cambodian Government.[iv] Discussions about the creation of a tribunal to prosecute crimes committed by the CPK began in 1997 but it took nearly ten years for the tribunal to come to fruition due to disputes over international officials’ and domestic officials’ involvement with the proceedings.[v] The Cambodian government and the United Nations had distinct views on how to organize the tribunal: the United Nations wanted to create a tribunal in The Hague similar to the tribunals established to prosecute the crimes of the Rwandan Genocide and the crimes committed during the wars in the former Yugoslavia. [vi] The Cambodian government wanted a domestic tribunal with limited international support.[vii] Cambodia’s request for a local tribunal was grounded in sovereignty and the fear that if an internationally run tribunal were improperly conducted, war would ensue.[viii] The negotiations led to extraordinary chambers in Cambodia, a domestically located court outside the confines of the normal Cambodian legal system, where Cambodian judges constitute the majority with a supermajority provision in force.[ix] The prosecutorial and defense duties are evenly split between Cambodian and international attorneys, while the administrative posts are divided, with many key positions controlled by Cambodia.[x]
The subject matter jurisdiction also includes a hybrid of international and domestic law. Although the court is formally part of the Cambodia’s civil justice system, due to the strong influence of international staff and gaps in Cambodian legal precedent and procedure, the ECCC acts increasingly more like an international court that applies both civil and common law.[xi] For example, the ECCC has jurisdiction over important internationally defined crimes of genocide, crimes against humanity, war crimes, destruction of cultural property[xii], and attacks against diplomatic personnel[xiii] shaped by the relevant international conventions. [xiv] The ECCC also has jurisdiction over the domestic crimes of homicide, torture, and religious persecution under the 1956 Cambodian Penal Code.[xv] With time, the ECCC increasingly continues to mix international and domestic law since the ECCC deals with novel and challenging legal questions that generally lack direct guidance from Cambodian legal precedent, forcing the court to draw from similar international tribunals.[xvi]
The interaction of international law with domestic law in the tribunal had noteworthy procedural and substantive effects on Case 002-02. The ECCC’s ability to charge defendants with both domestic and international crimes made it more likely to secure a conviction.[xvii] The nature of the conviction and the provisions guiding the sentencing were based on the ECCC’s sentencing in Case 001 and precedents from other international tribunals.[xviii] The verdict, due to procedural and administrative obstacles, took nearly three years. In part, this was a result of the mixed composition of prosecutors, defendants, and judges. Based on the differing objectives these players had for the tribunal, disputes often arose between the co-counterparts. For instance, Cambodian judges and prosecutors opposed the arrest and indictment of five additional suspects, while some international officials wanted to expand the tribunal’s scope in part to prove the court’s legitimacy and independence from the Cambodian government.[xix] While the procedural requirement of a supermajority encourages the judges to work together to reach a decision by consensus, in this instance, the Cambodian judges and international judges voted down the line, invoking the supermajority veto and moving the investigations forward by default.[xx] The diversity of the officials has also created inefficiencies regarding the use of both civil and common law. For instance, most officials are only experts in one system, creating procedural and substantive issues throughout the proceedings to date.
The ECCC’s hybrid had some negative impacts on Cambodians’ perspectives on the verdict. The delays caused by the elision of international and domestic law made many Cambodians indifferent to the verdict. Some expressed dissatisfaction with the international precedent used to establish the defendants’ life imprisonment sentences.[xxi] The sentencing structure failed to account for Cambodia’s unique cultural perceptions of life-after death, not recognizing the different implications of a life imprisonment sentence and a 100-year sentence. Even with the sentencing dissatisfaction, some Cambodians expressed pleasure for the verdict for its accordance with international standards.[xxii] These Cambodians enjoyed the notion that this verdict establishes precedent not just for Cambodia but also for the world. [xxiii]
The use of Cambodian law, however, legitimized the verdict for many, making it more significant than a pure international verdict. Charging the defendants of national crimes fostered a sense of ownership for the Cambodian judiciary and made the proceedings more meaningful to the Cambodian population as a whole.[xxiv] It affirmed that Cambodia, a developing country, has laws that can bring people to justice.
This verdict of Case 002-1 profoundly influences Cambodian society and the international community. It expands international efforts to hold corrupt regimes accountable for grave crimes committed and promotes the protection of human rights.[xxv] After learning from and improving on some of the obstacles the ECCC has faced, the hybrid model should be a model more frequently used in international criminal justice. The Office of the United Nations High Commissioner for Human Rights stated that the hybrid tribunals have ‘a lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity’.[xxvi] The central objectives of transitional justice are embodied in the hybrid court structure and it is clear with the verdict of case 002-1 that Cambodians were actively involved in a court system that delivered justice.
[i] See Prosecutors v. Nuon Chea and Khieu Samphan Case No. 002/19-09-2007/ECCC/TC, Judgment (Aug. 7, 2014), available at http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/2014-08-07%2017:04/E313_Trial%20Chamber%20Judgement%20Case%20002_01_ENG.pdf.
[ii] Id. at 595.
[iii] The first case, Case 001, reached a guilty verdict on July 26, 2010. The second half of the second case, Case 002-02, began on July 30, 2014.
[iv] John D. Ciorciari, Introduction, in On Trial: The Khmer Rouge Accountability Process 13, 13 (John D. Ciorciari & Anne Heindel eds., 2009).
[v] Id. at 22.
[vi] John D. Ciorciari, History and Politics Behind the Khmer Rouge Trials, in On Trial: The Khmer Rouge Accountability Process 33, 67 (John D. Ciorciari & Anne Heindel eds., 2009).
[viii] Id. at 68.
[ix] Id. at 71-72.
[x] Id. at 77.
[xi] Anne Heindel, Jurisprudence of the Extraordinary Chambers, in On Trial: The Khmer Rouge Accountability Process 125, 163 (John D. Ciorciari & Anne Heindel eds., 2009).
[xii] Note that the ECCC is reluctant to prosecute this crime because the Conventions that establish these charges fail to specifically set out the elements of the crimes. See Anne Heindel, Overview of the Extraordinary Chambers, in On Trial: The Khmer Rouge Accountability Process 85, 103 (John D. Ciorciari & Anne Heindel eds., 2009).
[xiv] John D. Ciorciari, History and Politics Behind the Khmer Rouge Trials, supra note 6, at 73.
[xvi] Heindel, supra note 11, at 125.
[xvii] Heindel, Overview of the Extraordinary Chambers, supra note 12, at 102.
[xviii] Final Summary of Judgment, ECCC, Summary of Case 002/01 judgment read out by Trial Chamber President Nil Nonn, 19 (Aug. 8, 2014) available at http://www.eccc.gov.kh/sites/default/files/articles/20140807%20FINAL%20Summary%20of%20Judgement%20ENG.pdf.
[xix] Anne Heindel, Jurisprudence of the Extraordinary Chambers, supra note 11, at 155.
[xx] Anne Heindel, Overview of the Extraordinary Chambers, supra note 12, at 107; Anne Heindel, Jurisprudence of the Extraordinary Chambers, supra note 11, at 155.
[xxi] Sok-Kheang Ly et al., Villagers React to Verdict in Case 002/01, DC-Cam, 6, 11 (Aug. 7, 2014), http://d.dccam.org/Projects/Living_Doc/pdf/Villagers_React_to_Verdict_in_Case_002-01.pdf.
[xxii] May Titthara et al., Reaction at Viewings Mixed, The Phnom Penh Post (Aug. 8, 2014), http://www.phnompenhpost.com/national/reaction-viewings-mixed
[xxiv] Anne Heindel, Overview of the Extraordinary Chambers, supra note 12, at 103
[xxv] John D. Ciorciari, History and Politics Behind the Khmer Rouge Trials, supra note 6, at 54.
[xxvi] Kevin Boreham & Harry Hobbs, Khmer Rouge Tribunal Delivers Judgment But Not Justice, East Asia Forum (Aug. 30, 2014), http://www.eastasiaforum.org/2014/08/30/khmer-rouge-tribunal-delivers-judgment-but-not-justice/.