The ECCC - From Case 001 to Case 002

Transcription

The ECCC - From Case 001 to Case 002 Findings and the Future
Research paper prepared by:
Adrienne Lyle
James Darch
Sonia Inkpin
Meghan Purves
Zoe Hutchinson
Jack Hill
tmpb6e2
Please note that material in these research papers (“Material”)
is intended to contain matters which may be of interest. The
Material is not, and is not intended to be, legal advice. We
endeavour to take care in compiling the Material; however the
Material may not reflect the most recent developments.
About the Humanitarian Law Perspectives
Project
The Red Cross and Mallesons Stephen Jaques Humanitarian Law
Perspectives project helps raise awareness of the importance of
International Humanitarian Law (“IHL”) and its enforcement in
post conflict societies
Australian Red Cross is mandated to educate the Australian
community about the rules that apply in times of armed conflict,
and to promote an awareness and understanding of IHL. In 2007,
Red Cross and Mallesons Stephen Jaques developed the
Humanitarian Law Perspectives project. This project aims to
disseminate to the legal profession critical current information on
topics and issues that have been considered by international
courts and tribunals. The project involves two key components:
substantial research papers and a signature seminar series.
The Humanitarian Law Perspectives research papers are written
annually by Mallesons staff. The papers address current issues
that have been considered by international courts and tribunals,
and developments in IHL. The research papers are available on
the
Red
Cross
website,
at
http://www.redcross.org.au/ihl/resources_MSJ-researchpapers.htm.
The annual Humanitarian Law Perspectives seminar series is a
series of signature seminars held across Australia.
The
Humanitarian Law Perspectives seminars examine one key area of
jurisprudence, or a current issue or development, in order to provide
the legal profession with a better understanding of emerging key
themes in IHL around the globe. The seminars feature prominent
speakers in the field, including practitioners, judges and academics.
 Mallesons Stephen Jaques
tmpb6e2
Humanitarian Law Perspectives 2001
The ECCC - from Case 001 to Case 002 - Findings and the future
May 2011
2
Table of contents
1
Summary
4
2
The factual and legal findings of the Trial Chamber in Case 001
6
2.1
2.2
2.3
Crimes Against Humanity (Art 5)
Grave breaches of the Geneva Conventions of 1949 (Art 6)
Individual Criminal Responsibility of Duch (Art 29 (new))
6
8
9
3
The sentencing of Duch and the findings made in relation to civil party
reparations
11
3.1
3.2
Sentencing
Civil Party Reparations
11
12
4
How does the ECCC provide for appeals from the decisions of the Trial
Chamber? Which aspects of the decision in Case 001 have been appealed
and by whom?
13
4.1
How does the ECCC provide for appeals from the decisions
of the Trial Chamber?
What aspects of the decision in case 001 have been
appealed and by whom?
4.2
tmpb6e2
13
15
5
The trial management procedures of the ECCC which are intended to apply
to Case 002, and the impact this has had on preparations for Case 002,
including on the Victims Support Section (“VSS”).
18
5.1
5.2
Trial management procedures of the Trial Chamber
Developing innovations in trial management
18
18
6
Conclusion
22
May 2011
3
The ECCC - from Case 001 to Case 002 - Findings and the
future
1
Summary
On 26 July 2010, the Trial Chamber of the Extraordinary Chambers in the Courts
of Cambodia (“ECCC”) delivered its judgment in the case against Kiang Guek
Eav (alias ‘Duch’)1(“Case 001”). As the first case before the ECCC it has
important implications not only for the legitimacy and effectiveness of the ECCC
but for international criminal justice and accountability more broadly.
All charges laid against Duch related to acts and/or omissions which were
committed in Cambodia between 17 April 1975 and 6 January 1979 during the
conflict that took place between the Cambodian and Vietnamese armed forces.2
Duch was brought to trial for crimes he committed whilst he “served as Deputy
and then Chairman of S-21, a security centre tasked with interrogating and
executing perceived opponents of the Communist Party of Kampuchea
(“CPK”)”.3
Duch was found guilty pursuant to Articles 5 (crimes against humanity), 6 (grave
breaches of the Geneva Conventions of 1949) and 29 (new) (individual criminal
responsibility) 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 the Democratic Kampuchea (“ECCC Law”). Specifically, Duch was
found guilty of:

“Crimes against humanity (persecution on political grounds)
(subsuming the crimes against humanity of extermination (encompassing
murder), enslavement, imprisonment, torture (including one count of
rape), and other inhumane acts).

Grave breaches of the Geneva Conventions of 1949, namely:

wilful killing;

torture and inhumane treatment;

wilfully causing great suffering or serious injury to body or
health;

wilfully depriving a prisoner of war or civilian of the rights of
fair and regular trial; and

unlawful confinement of a civilian.
4
1
Hereafter referred to as ‘Duch’, being the revolutionary name that he chose to adopt once he was
inducted into the regime of the Communist Party of Kampuchea. Source: Transcript 6 April 2009,
Day 4 (Accused), pp. 35-36; Transcript of Proceedings 28 April 2009, Day 13 (Accused), 56.
2
Case against Kaing Guek Eav, Case No. 001/18-07-2007-ECCC-TC, Judgement, 26 July 2010 34.
3
Ibid 20 [59] and 42 [111].
4
Ibid 244 [677].
tmpb6e2
May 2011
4
Duch was sentenced to 35 years imprisonment, with a reduction of 5 years to
take into account time he had already spent in detention. The decision is in many
respects a substantial step toward accountability in Cambodia as well as being of
importance for the progressive development of international criminal law.
The case was also of significance from the perspective of victim participation in
international criminal justice. A key feature of the ECCC is that victims are
allowed to participate in proceedings as ‘Civil Parties’. Ninety three Civil Parties
were permitted to take part in the Duch case5 although many were not entitled to
claim reparations due to insufficient evidence.6 Certain Civil Parties claiming to
be survivors of detention in S-21 or S-24 were unable to prove their detention at
the relevant security centres, while others were unable to prove the existence of a
close kinship or particular bond of affection or dependency with an immediate
victim of S-21 or S-24.7 Other claims for reparations were rejected on the basis
that they were either beyond the scope of available reparations,8 within national
governmental prerogatives9 or insufficiently specific.10
Article 36 (new) of the ECCC Law, Internal Rules, provide that the
Extraordinary Chamber of the Supreme Court (“Supreme Court Chamber”)
may decide appeals from the Trial Chamber. The Internal Rules of the ECCC set
out which decisions are subject to immediate appeal and the jurisdiction for the
Supreme Court to decide an appeal.11 Under the Internal Rules the CoProsecutor, Defence and Civil Parties all appealed particular aspects of the
decision in Case 001. The Co-Prosecutor claimed that errors of law were made
on three grounds: that the sentence imposed was manifestly inadequate; that
Duch should have been convicted cumulatively for all crimes for which he was
found responsible; and that Duch should have been convicted for enslavement of
all S-21 detainees. The Defence also alleged that errors of law were made,
arguing that the Trial Chamber erred in its assessment of its jurisdiction over
Duch and in its determination of a single prison sentence of 35 years. The
outcomes of these appeals are likely to be of substantial interest from the
perspective of individual criminal responsibly as it is conceived in international
law.
Since Case 001 there have been a number of key changes to trial management
procedures in relation to the participation of Civil Parties in hearings, some of
which are intended to give the Victim Support Section (“VSS”) of the ECCC
broader scope to encourage deeper levels of victim participation and facilitate
greater levels of redress for the crimes they have suffered. The effectiveness of
these trial management procedures is likely to be crucial to the ultimate
legitimacy and workability of the Trial Chamber in Case 002. This in turn may
have significant implications for the approaches to trial management adopted by
the International Criminal Court.
5
Ibid 218 [637].
Since the time of writing, in a decision to grant appeals from 1,728 civil party applicants in Case
002, the Pre-Trial Chamber of the ECCC has found that an incorrect interpretation of the
necessary casual link between the crimes being investigated and the injury suffered by the civil
party applicants was applied when the applicants were initially rejected civil parties, and that the
criteria for what constitutes injury in order to be a victim had been interpreted too narrowly. The
findings of the Pre-Trial Chamber mean that more victims are now able to participate in Case
002.
7
Ibid 229-230, [650].
8
Ibid 241 [670], 243 [674].
9
Ibid 242 [671].
10
Ibid 242 [672-73].
11
Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev.6), 17 September 2010.
6
tmpb6e2
May 2011
5
2
The factual and legal findings of the Trial Chamber in
Case 001
2.1
Crimes Against Humanity (Art 5)
Duch was charged under Article 5 of the ECCC Law with the following crimes
against humanity: (i) murder; (ii) extermination; (iii) enslavement; (iv)
imprisonment; (v) torture; (vi) rape; (vii) persecution on political grounds; and
(viii) other inhumane acts.12 He was found guilty of each of these offences: 13
(a)
Murder and extermination: According to the Trial Chamber ‘murder’
under customary international law consists of the death of the victim
resulting from an unlawful act or omission by the perpetrator.14
Extermination is characterised by an act or omission that results in the
death of persons on a massive scale.15 The Trial Chamber found that as
the result of deliberate and unlawful acts, the staff at S-21 executed
detainees from S-21 and S-24.16 The Trial Chamber also found that S-21
and S-24 detainees died as a result of unlawful omissions likely to lead
to their death,17 namely the "living conditions imposed at S21 [that]
were calculated to bring about death of detainees”.18 Due to the massive
scale of the deaths and executions at S-21 the Trial Chamber found that
both murder and extermination had been committed.19
(b)
Enslavement: The Trial Chamber held that ‘enslavement’ under
customary international law is characterised by “the exercise of any or
all powers attaching to the right of ownership over a person”.20 The
Trial Chamber found that the forced or involuntary labour and detention
of the S-24 detainees, and a small number of S-21 detainees, amounted
to enslavement.21
(c)
Imprisonment: The Trial Chamber found that the detainees at S-21
were imprisoned intentionally and arbitrarily.22 Duch “conceded that at
least 12,273 men, women and children were detained at S-21”,23 and
there was “no reasonable grounds and no legal basis justifying the large
number of individuals intentionally imprisoned at S-21”.24
(d)
Torture, including rape: The Trial Chamber held that ‘torture’
comprises the infliction of severe pain or suffering, whether physical or
12
Case against Kaing Guek Eav, Case No. 001/18-07-2007-ECCC-TC, Judgement, 26 July 2010,
99, [282].
13
Ibid 120, [339-340].
14
Ibid 120, [331].
15
Ibid 120, [334].
16
Ibid 120, [339].
17
Ibid.
18
Ibid 73, [205] citing Amended Closing Order, [138-140].
19
Ibid 120, [341].
20
Ibid 120, [342].
21
Ibid 120, [346].
22
Ibid 120, [351].
23
Ibid 83, [235].
24
Ibid 83, [234] citing Amended Closing Order [134].
tmpb6e2
May 2011
6
mental, to attain a certain result or purpose.25 The Trial Chamber found
that various torture techniques were held out at the S-21 complex26 for
the purpose of obtaining a confession or as punishment, including severe
beating, electrocution, suffocation with plastic bags, ‘water-boarding’,
forced feeding of excrement and urine, and one proven incidence of
rape.27 Duch indicated that the "objective of torturing is to get [the
detainees’] answers”.28
(e)
Persecution on political grounds: Duch was indicted for persecution
on political grounds. The majority of the Trial Chamber found that
Duch’s conduct demonstrated a specific intent to target his victims at S21 on the basis of discriminatory CPK policy.29
(f)
Other inhumane acts: According to the Trial Chamber an inhumane
act occurs where a victim suffers serious harm to body or mind, resulting
from an act or omission of the perpetrator,30 where the perpetrator
intended to inflict the inhumane act. The Trial Chamber found that:
“the prisoners at S-21 suffered serious bodily and mental harm
from inhumane acts which included deliberate deprivation of
adequate food, sanitation and medical treatment.”31
The subjection of detainees to medical experiments was held to be an
additional inhumane act.32
Each of the six ‘chapeau’ prerequisites required to be met under Article 5 of the
ECCC Law were made out. The Trial Chamber found that: (i) attacks were
committed by S-21 personnel;33 (ii) these were widespread and systematic;34 (iii)
they were targeted at Cambodian and Vietnamese nationals;35 (iv) they were
carried out on political grounds;36 (v) S-21 was integral to these attacks;37 and
(vi) Duch had knowledge of these attacks as Chairman of S-21.38
To comply with the principle of legality, the Trial Chamber was tasked with
assessing whether Duch’s offences constituted crimes under national or
international law during the period from 17 April 1975 to 6 January 1979.39
Cambodia was not a party to any relevant treaty during this period nor did
25
Ibid 124 [355], 125 [356].
Ibid 85, [241].
27
Ibid 85, [241] citing Trial, 16 June 2009 (Accused), pp 14, 44; “Written Record of Interview of
Duch by the Co-Investigating Judges on 21 January 2008”, E3/11, ERN (English) 00159557. Also
see 126 [360].
28
89, [253].
29
Ibid 137, [396]; p. 135, [389].
30
Ibid 128, [368].
31
Ibid 91, [257] citing Amended Closing Order [143].
32
Ibid 96, [275].
33
Ibid 114, [320].
34
Ibid 115, [321].
35
Ibid 115, [322-325].
36
Ibid. 116, [326-327].
37
Ibid 116-117, [328].
38
Ibid 117, [329].
39
Ibid 99, [282].
26
tmpb6e2
May 2011
7
Cambodian domestic law contain any provisions relevant to these crimes. 40
Accordingly, the Trial Chamber had to assess whether the offences charged
against Duch pursuant to Article 5 of the ECCC Law formed part of customary
international law during the relevant period.41
The Trial Chamber determined that no link is required between crimes against
humanity and an armed conflict under customary international law,42 and that the
offences with which Duch was charged under Article 5 of the ECCC Law could
be prosecuted as crimes against humanity provided that the crime’s ‘chapeau’
requirements were otherwise met.43 It was therefore foreseeable during the
relevant period that Duch could be held criminally liable for the offences with
which he was charged.44 Moreover the appalling nature of the crimes meant that
Duch was aware of the criminal nature of his actions.45 Accordingly, the
principle of legality was found to be satisfied.
2.2
Grave breaches of the Geneva Conventions of 1949 (Art 6)
Duch was also charged with grave breaches of the Geneva Conventions of 194946
pursuant to Article 6 of the ECCC Law,47 with the Trial Chamber finding that the
Geneva Conventions were binding in Cambodia at all relevant times. 48
The Trial Chamber found that the conduct at S-21 for which Duch was
responsible constituted wilful killing.49 Additionally the Trial Chamber found
that the conduct of S-21 employees constituted inhumane treatment50 (with the
main contravention focusing on attacks on human dignity)51 and torture.52 Duch
was also charged with wilfully causing great suffering or serious injury to the
body or health53 of detainees at S-21.
The Trial Chamber held that at least 345 Vietnamese prisoners were denied their
right to a fair trial,54 in breach of Geneva Conventions III and IV. Duch was also
charged with the unlawful confinement of civilians,55 a grave breach of the
Geneva Convention IV.56
40
Ibid 99, [284].
Ibid. 99, [284].
42
Ibid 102-103, [291].
43
Ibid 104, [293].
44
Ibid 104, [294].
45
Ibid 104, [295].
46
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October
1950).
47
139, [401].
48
Ibid 141, [404].
49
Ibid 150, [431-437].
50
Ibid 152, [440].
51
Ibid 154, [449].
52
Ibid 153-155, [446-447].
53
Ibid 155, [450].
54
Ibid 157-158, [461-462].
55
Ibid 158 [464-466].
56
Ibid 159, [467-469].
41
tmpb6e2
May 2011
8
2.3
Individual Criminal Responsibility of Duch (Art 29 (new))
Under Article 29 (new) of the ECCC Law, the Trial Chamber found Duch
individually criminally responsible for the crimes committed.57 Article 29 (new)
of the ECCC Law 58 provides that an accused who “planned, instigated, ordered,
aided or abetted, or committed” the crimes referred to in Article 3 (new), Article
4, Article 5, Article 6, Article 7 and Article 8 is individually responsible for those
crimes.59
(a)
Committing:
(i)
Personal Culpability
The Trial Chamber found that although Duch was personally
involved in a degree of mistreatment of prisoners during his
tenure as deputy of S-21, he was not personally responsible for
the physical perpetration or culpable omission of such offences
to a sufficient degree to attract liability.60
(ii)
Joint Criminal Enterprise
Duch specifically contested the charge of joint criminal
enterprise laid against him.61 The Trial Chamber examined
whether the ‘re-characterisation’ of the responsibility for the
charges against Duch conflicted with his rights to a fair trial
under Article 35 (new) of the ECCC Law.62 The Trial Chamber
cited judgments of the European Court of Human Rights,63
Regulation 55 of the ICC64 and the Appeals Chamber of the
ICC65 as authority in concluding that the joint enterprise charge
did not violate Duch’s rights to a fair trial.66
The Trial Chamber also addressed the fact that Article 29 (new)
of the ECCC law does not expressly refer to ‘joint criminal
enterprise’.67 However the fact that Article 29 largely mirrors the
Statute of the International Criminal Tribunal for the former
Yugoslavia68 and the fact that the ‘basic’ and ‘systemic’ forms
of joint criminal enterprise “were part of customary international
57
Ibid 196, [567].
Ibid 160, [470], citing Article 29 (new) of the ECCC Law.
59
Ibid 160, [470].
60
Ibid 165, [486].
61
Ibid 166, [487].
62
Ibid 170, [497] citing Article 35 (new) of the ECCC Law: In determining charges against the
accused, the accused shall be equally entitled to the following minimum guarantees, in accordance
with Article 14 of the International Covenant on Civil and Political Rights. 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 and facilities for the preparation of their defence and to
communicate with counsel of their own choosing;
63
Ibid 170, [498]. The Trial Chamber referred to Pelissier and Sassi v. France, Judgment of 25
March 1999, ECtHR (no.25444/94), 25 March 1999 and I.H. and Others v Austria, Judgment of 20
April 2006, ECtHR (no.42780/98), 20 April 2006.
64
Ibid 171, [499].
65
Ibid 171, [500].
66
Ibid 172, [501].
67
Ibid 177, [511].
68
Ibid 177, [511].
58
tmpb6e2
May 2011
9
law during the 1975 to 1979 period”,69 allowed the Trial
Chamber to consider this issue.70
The Trial Chamber found Duch responsible for ‘systemic joint
criminal enterprise’71 stemming from the operation of the S-21
system. For this reason he was individually responsible for the
crimes against humanity and grave breaches of the Geneva
Conventions of 1949 for which he was charged.72
(b)
Planning: Duch was charged with being responsibility for planning the
‘design [of] the criminal conduct that constituted one or more crimes that
are later perpetuated’.73 The Trial Chamber concluded that Duch
“helped design the functioning of S-21 from its inception” and intended
the crimes to be committed or at least would have been aware of the
substantial likelihood that they would be committed.74
(c)
Instigating: The instigation of the crimes committed at S-21 was
another head of responsibility with which Duch was charged.75 The Trial
Chamber found him guilty of instigating crimes through ‘indoctrination
and training’76 and that he intended or at least would have been aware
that the crimes would be perpetrated at his instigation.77
(d)
Ordering: Duch was held to have “issued, passed down or transmitted
orders to his S-21 staff to arrest, torture and execute detainees”.78 The
Trial Chamber found that Duch intended for the crimes to be committed
or at least would have been aware they would be committed as the result
of his orders being carried out.79
(e)
Aiding and Abetting: The Trial Chamber concluded that Duch was
also liable for aiding and abetting80 through the provision of “practical
assistance, encouragement and moral support… to his staff [at S-21]
[which] had a substantial effect on their perpetration of crimes at S21”.81
(f)
Superior Responsibility: Duch was charged with superior
responsibility for the crimes that were alleged to have been committed in
the Indictment.82 The Trial Chamber found that the three elements of the
test for superior responsibility were satisfied as Duch had a superior
relationship with subordinates and employees at S-21, he knew that they
committed crimes and he failed to punish the perpetrators or prevent
69
Ibid 178, [512].
Ibid 178, [512-513].
71
‘Systemic Joint Criminal Enterprise’ is ‘characterised by the existence of an organised system of
ill-treatment’ - Ibid 175, [507].
72
Ibid 179, [516].
73
Ibid 180, [518].
74
Ibid 180-181, [521].
75
Ibid 181, [522] citing Prosecutor v Kordic et al., Judgement, ICTY Appeals Chamber (IT-95-14/2A), 17 December 2004 (“Kordic Appeal Judgement”), para 27.
76
Ibid 182, [526].
77
Ibid 182, [526].
78
Ibid 184, [531]
79
Ibid 184, [531].
80
Ibid 184, [533].
81
Ibid 186, [537].
82
Ibid 186, [538].
70
tmpb6e2
May 2011
10
such crimes.83 Accordingly, the Trial Chamber found Duch guilty for
“‘direct forms of… superior responsibility”.84
(g)
Defences to individual criminal responsibility: Duch raised several
defences in an attempt to alleviate himself of liability for the offences
with which he was charged85, including the defences of ‘superior orders’
and ‘duress’.
The Trial Chamber held that the defence of “superior orders does not
constitute a legitimate defence to charges of crimes against humanity and
war crimes”,86 concluding that Duch knew, or it was inferred that he
knew, that the crimes of killing, torture and arbitrary detainment were
unlawful offences.87
The defence of duress, was examined under the Cambodian 1956 Penal
Code88 and the Statutes of other international tribunals.89 In issue was
whether the hierarchal structure of the Democratic Kampuchea regime
(“DK Regime”) meant that Duch was under pressure to perform certain
tasks. The Trial Chamber determined that Duch’s acceptance of his
controlling position at S-21 was indicative of his support for the CPK.90
Although the Trial Chamber ruled that Duch was not under duress
sufficient to mitigate criminal responsibility, they did consider factors
such as the “coercive climate in DK and [Duch’s] hierarchal position
within the CPK”91 in their determination of Duch’s sentence.
3
The sentencing of Duch and the findings made in
relation to civil party reparations
3.1
Sentencing
The majority of the Trial Chamber sentenced Duch to 35 years imprisonment,
with a reduction of 5 years to take into account his illegal detention by the
Cambodian Military Court between 1999 and 2007.92 He was granted a credit for
time already spent in detention.93
In determining the sentence, the Trial Chamber considered a number of
aggravating and mitigating factors. Duch’s abuse of power, the cruelty of the
crimes, the fact that the victims were defenceless, and the discriminatory intent
with which the crimes were committed94 were all accepted as factors in favour of
the imposition of a lengthy sentence.95 However, despite a belated request for
acquittal, Duch’s extensive cooperation with the Trial Chamber, repeated
83
Ibid 189, [549].
Ibid 189, [548].
85
Ibid 190-193, [550-558].
86
Ibid 190, [552].
87
Ibid 191, [552].
88
Ibid 191, [553].
89
Ibid 191, [554].
90
Ibid 192, [555].
91
Ibid 193, [558].
92
Ibid 216 [631-632].
93
Ibid 216 [633].
94
Ibid 207-8 [601-5].
95
Ibid 216 [630].
84
tmpb6e2
May 2011
11
expressions of remorse, and evidence of a propensity for rehabilitation96 were
viewed having of sufficient mitigating effect to prevent the imposition of a life
sentence.97
Superior orders and duress were not accepted as mitigating factors in sentencing
with the Trial Chamber placing ‘limited weight’ on the coercive climate of the
DK.98 Similarly, no psychological impairment or factors in Duch’s broader life
were found to diminish his responsibility,99 with the Trial Chamber noting that
Duch was criminally responsible for “crimes of a particularly shocking and
heinous character”100 and that as “an intelligent and educated man” he “fully
understood the nature of his acts”.101
3.2
Civil Party Reparations
The participation of victims as civil parties is one of the major innovations of the
ECCC. Ninety three Civil Parties were permitted to take part in the Duch case.102
The purpose of allowing their participation was to enable a greater voice for
victims, with all participating Civil Parties alleged to be survivors of S-21 or S24103 or close relatives of someone killed in one of those security centres.104 In
addition to taking part in the trial, ECCC law allowed the victims to seek a
variety of reparations from Duch.105
In order to prove a right to reparations, the Civil Parties first needed to show that
they had suffered “physical, material or psychological” injury as a “direct
consequence” of Duch’s offences.106 Harm was automatically judged to be direct
for both primary victims and immediate family members.107 However, for
extended family members “special bonds of affection” or dependence on a
primary victim were required to be shown.108
Of the eight alleged survivors of S-21 or S-24, the Trial Chamber dismissed the
claims of four due to insufficient proof they detained at those centres.109 The
Trial Chamber also dismissed nineteen claims based on loss of a family member.
In respect of some claims there was found to be insufficient evidence that a
relative has been detained at S-21 or that the relevant Civil Party was related to
someone proven to have been detained at the centre. Others Civil Parties failed to
prove a close kinship or particular bond of affection or dependency in relation to
the victims.110
96
Ibid 209-10 [609-11]
Ibid 215-16 [629]
98
Ibid 208-9 [606-608].
99
Ibid 210-14 [612-22].
100
Ibid 206 [597].
101
Ibid 206 [599].
102
Ibid 218 [637].
103
Ibid 222 [645].
104
Ibid 225 [648].
105
Ibid 233 [652].
106
Ibid 219 [640].
107
Ibid 220-21 [642-43].
108
Ibid 221 [643].
109
Ibid 222-25 [645-647].
110
Ibid 225-29 [648-49].
97
tmpb6e2
May 2011
12
After determining which Civil Parties were entitled to claim reparations, the Trial
Chamber went on to consider the specific requests of those Civil Parties as set
out in four joint submissions. In order to be valid the claims needed to be
collective and moral reparations of a sufficiently certain nature to create an
enforceable order.111 The Trial Chamber stressed that it had no jurisdiction over
Cambodian or other national authorities or international bodies and that it could
only impose obligations on Duch. This posed a problem in relation to the
payment of claims as Duch was bankrupt at the time of the proceedings.112
The Trial Chamber granted the requests of the Civil Parties that their names and
those of immediate victims be included in the final judgement, and a request for
all statements of apology by Duch to be compiled and published.113 The Trial
Chamber noted that while, ‘strictly speaking’, this was not an order made against
Duch, they were capable of honouring such requests and that to do so would be
of “considerable symbolic significance for victims”.114
However, the Trial Chamber rejected all other claims for reparations. Broad
claims seeking free medical care, educational measures, individual monetary
awards, or the establishment of trust funds were judged to be beyond the scope of
available reparations.115 Similarly, claims requiring action by the Cambodian
Government, such as the establishment of a national commemoration day were
judged to fall within national governmental prerogatives.116 Claims relating to the
construction of memorials and the preservation of historical sites and archival
material were viewed as insufficiently specific.117 As a result, while the Trial
Chamber did not dispute victim needs,118 few Civil Party requests were actually
granted. The Trial Chamber has been strongly criticised by some victims groups
and human rights non-government organisations for its approach.119
4
How does the ECCC provide for appeals from the
decisions of the Trial Chamber? Which aspects of the
decision in Case 001 have been appealed and by
whom?120
4.1
How does the ECCC provide for appeals from the decisions of the
Trial Chamber?
Article 36 (new) of the ECCC Law provides that the Extraordinary Chamber of
the Supreme Court shall decide appeals made by the accused, the victims, or the
Co-Prosecutors against the decision of the Trial Chamber.121 This article also
111
Ibid 233 [651].
Ibid 239 [663-64].
113
Ibid 240-41 [667-69].
114
Ibid 240 [667].
115
Ibid 241 [670], 243 [674].
116
Ibid 242 [671].
117
Ibid 242 [672-73].
118
Ibid 243 [675].
119
See, for example, Saray Thun, Chhaya Hang, Sam Oeum Sok, Karine Bonneau, Saray Run,
The ECCC at a Crossroad: Making Victim Participation Meaningful ahead of the Second Trial,
Civil Society Memo, 13 September 2010, 2.
120
Since the time of writing the appeal has been heard. The Supreme Court Chamber is expected
to issue its judgment in the coming months.
121
Article 36 new.
112
tmpb6e2
May 2011
13
provides that the Supreme Court Chamber shall make final decisions on both
issues of law and fact and may not return the case to the Trial Chamber.122
Article 17 (new) further provides that the Co-Prosecutors in the Trial Chamber
shall have the right to appeal the verdict of the Trial Chamber.123
Appeals of Trial Chamber decisions in the ECCC are governed by Rules 104 to
114 of the ECCC Internal Rules.124
The Supreme Court Chamber has jurisdiction to decide an appeal against a
judgment of a decision of the Trial Chamber on the following grounds:
(a)
an error on a question of law invalidating the judgment or decision; or
(b)
an error of fact which has occasioned a miscarriage of justice.125
The following decisions of the Trial Chamber are subject to immediate appeal:
(a)
decisions which have the effect of terminating the proceedings;
(b)
decisions on detention and bail under Rule 82;
(c)
decisions on protective measures under Rule 29(4)(c); and
(d)
decisions on interference with the administration of justice under Rule
35(6).126
An appeal against a Trial Chamber judgment may be filed by the Co-Prosecutors
or the accused.127 Civil Parties may appeal decisions on reparations. Where the
Co-Prosecutors have appealed, the Civil Parties may appeal the verdict, but may
not appeal the sentence.128
The requirements for setting out the grounds of an immediate appeal are
specified in Rule 105(2) of the Internal Rules.
A party wishing to appeal a judgment must file a notice of appeal setting forth
the grounds. For each ground of appeal, the notice must specify the alleged
errors of law invalidating the decision and alleged errors of fact which occasion a
miscarriage of justice. The appellant must subsequently file an appeal brief
setting out the arguments and authorities in support of each of the grounds.129
Appeals must identify the finding or ruling challenged, with specific reference to
the page and paragraph numbers of the decision of the Trial Chamber.130
122
Article 36 new.
Article 17 new.
124
Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Ver 6) (adopted 17
September 2010) (“ECCC Internal Rules”).
125
Ibid r 104 (1)(b).
126
Ibid r 104(4).
127
Ibid r 105(1)(a) and (b).
128
Ibid r 104(1)(c).
129
Ibid r 105(3).
130
Ibid r 105(4)
123
tmpb6e2
May 2011
14
4.2
What aspects of the decision in case 001 have been appealed and by
whom?
The Co-Prosecutors, the Defence and Civil Parties have lodged appeals against
certain aspects of the decision in Case 001, decided on 26 July 2010131. The
specific grounds of appeal submitted by each of the parties are outlined below.
(a)
Co-Prosecutors’ Appeal
The Co-Prosecutors alleged errors of law by the Trial Chamber on three
grounds:132
(i)
That the Trial Chamber committed a discernable error in the
exercise of its sentencing discretion by imposing a manifestly
inadequate sentence.
In particular, the Co-Prosecutors alleged the Trial Chamber gave
insufficient weight to the gravity of the “crimes of a particularly
shocking and heinous character” committed by Duch, his
leading role and willing participation in those crimes, and other
aggravating circumstances.133
The Co-Prosecutors also claimed that the Trial Chamber gave
undue weight to the mitigating circumstances, which the CoProsecutors’ submitted, were not proven in the case. In addition,
the Co-Prosecutors argued that Duch’s request at the end of the
trial for an acquittal placed his contrition and remorse in very
serious doubt.134
Finally, the Co-Prosecutors argued that the Trial Chamber failed
to consider the relevant international sentencing law and the
range of sentences available to it in cases of this nature. The
Co-Prosecutors argued that the Trial Chamber placed no reliance
on the settled international jurisprudence cited and relied on by
the Co-Prosecutors, or in fact, on any relevant jurisprudence or
practice in reaching the sentence of thirty-five years of
imprisonment. The Co-Prosecutors argued that the Trial
Chamber’s judgment does not indicate how the Trial Chamber
determined this figure or whether it relied on any assessment of
comparable sentences handed down in cases of similar
magnitude and gravity. The Co-Prosecutors argued that this
figure was manifestly inadequate for Duch’s proven and
admitted crimes.135
(ii)
That Duch should have been convicted of all the crimes for
which he was found responsible.
The Co-Prosecutors alleged the Trial Chamber failed to convict
Duch cumulatively for the crimes against humanity of
131
Case against Kaing Guek Eav, Case No. 001/18-07-2007-ECCC-TC, Judgement, 26 July 2010.
132
Co-Prosecutors’ Appeal Against the Judgement of the Trial Chamber in the case of Kaing Guek
Eave Alias Duch, Supreme Court Chamber ECCC, Case No 001/18-07-2007-ECCC/SC, 13
October 2010.
133
Ibid 8.
134
Ibid 9.
135
Ibid 9.
tmpb6e2
May 2011
15
enslavement, imprisonment, torture, rape, extermination and
other inhumane acts, by subsuming those crimes into the crime
against humanity of persecution on political grounds.136 The CoProsecutors argued that:
“multiple criminal convictions entered under different
statutory provisions but based on the same conduct are
permissible only if each statutory provision involved has
a materially distinct element not contained in the other.
An element is materially distinct from another if it
requires proof of a fact not required by the other.”137
The Co-Prosecutors contend the crimes subsumed all contained
separate, materially distinct elements not found in the crime
against humanity of persecution on political grounds.138
The Co-Prosecutors also argued that the Trial Chamber
characterised the crime against humanity of rape as torture, and
therefore, failed to convict Duch cumulatively for the distinct
crimes against humanity of rape and torture.139 A number of
international tribunals have consistently characterized rape as a
crime against humanity distinct from torture even if the same
criminal act amounts both to rape and torture.140
(iii)
That Duch should have been convicted for the enslavement of
all the detainees of S-21.
The Co-Prosecutors argued that the Trial Chamber failed to
convict Duch for the enslavement of those detainees in S-21
who were not subject to forced labour.141 They argued that this
was a consequence of the Trial Chamber employing a definition
of the crime against humanity of enslavement which included
forced labour as an essential element of that crime.142
Enslavement as a crime against humanity is defined as “the
exercise of any or all of the powers attaching to the right of
ownership over a person.”143 The Co-Prosecutors argued that
including forced labour as an element in the definition meant
that enslavement as a crime against humanity was only made out
in respect of “the S-21 detainees and…a small number of
detainees assigned to work within the S-21 complex”.144
(b)
The Defence’s Appeal
136
Ibid 45.
Celebici Appeals Judgement, para. 412, cited in Co-Prosecutors’ Appeal Against the Judgement
of the Trial Chamber in the case of Kaing Guek Eave Alias Duch, Supreme Court Chamber ECCC,
Case No 001/18-07-2007-ECCC/SC, 13 October 2010, 46.
138
Co-Prosecutors’ Appeal Against the Judgement of the Trial Chamber in the case of Kaing Guek
Eave Alias Duch, Supreme Court Chamber ECCC, Case No 001/18-07-2007-ECCC/SC, 13
October 2010, 46.
139
Ibid 56.
140
Ibid [366].
141
Ibid 60.
142
Ibid 60.
143
Ibid 60.
144
Ibid 60.
137
tmpb6e2
May 2011
16
The Defence alleged errors of law by the Trial Chamber on the following
two grounds:
(i)
That the Trial Chamber erred in the assessment of its jurisdiction
over Duch.
The Defence submitted that given Duch’s official functions at
the relevant time, Duch did not fit into the category of persons
under the jurisdiction of the Trial Chamber.145 The Defence
alleged that the Trial Chamber has jurisdiction over those who
were the senior leaders of the DK regime and who were most
responsible for the crimes and serious breaches of national and
international law in accordance with Article 1 of the Agreement
between the United Nations and the Royal Government of
Cambodia concerning the prosecution under Cambodian Law of
crimes committed during the period of the DK regime and
Articles 1 and 2 (new) of the ECCC Law.146 The Defence
argued that there were significant national legal instruments that
defined Duch’s legitimate roles and status and that he was not
included within the senior leaders and most responsible persons’
leadership structure within the DK Regime.147 Based on a
number of factors such as the responsibility within the
administrative structure of leadership, the exercise of decisionmaking power within the hierarchy, psychological assessment
reports by experts and the responsibility within the organisation
structure of the CPK, the Defence argued that Duch was among
those least responsible for the crimes and serious violations of
national and international law, and therefore, fell in the category
of perpetrators that is outside the Trial Chamber’s jurisdiction.148
(ii)
(c)
That the Trial Chamber erred in the determination of a single
prison sentence of 35 years by only considering its subjectmatter, temporal and territorial jurisdictions.
The Defence argued that the Trial Chamber omitted to take into
consideration Duch’s real functions during the DK Regime.149 The
Defence argued that, taking these facts into account, Duch should have
been found to be a witness of the events of the relevant period. It was
also alleged that the Trial Chamber had violated Rule 87 (rules of
Evidence) of the ECCC Internal Rules by failing to thoroughly examine
the question of its personal jurisdiction solely on the grounds that the
Defence preliminary objections were raised late.150 Civil Parties’ Appeal
Civil Parties have appealed various aspects of the Trial Chamber’s
decision. A common ground of the appeals related to the Trial
Chamber’s failure to include certain Civil Party Applicants in its
145
Appeal Brief by the Co-Lawyers for Kaing Guek Eav Alias “Duch” against the Trial Chamber
Judgement of 26 July 2010, Supreme Court Chamber ECCC, Case No 001/18-07-2007-ECCC/SC,
18 November 2010, 3-19.
146
Ibid 1.
147
Ibid 5.
148
Ibid 9-19.
149
Notice of Appeal by the Co-Lawyers for Kaing Guek Eav Alias Duch against the Trial Chamber
Judgement of 26 July 2010, Supreme Court Chamber ECCC, Case No 001/18-07-2007ECCC/SC, 24 August 2010, 4.
150
Ibid.
tmpb6e2
May 2011
17
judgment which, it is claimed, amounts to a miscarriage of justice. 151
The outcome of these appeals are likely to be of significant interest for
the ongoing development of international criminal law and individual
responsibility.
5
The trial management procedures of the ECCC which
are intended to apply to Case 002, and the impact this
has had on preparations for Case 002, including on
the Victims Support Section (“VSS”).
5.1
Trial management procedures of the Trial Chamber
The development of appropriate trial management procedures is key to the
ultimate legitimacy and workability of the Trial Chamber. The Trial Chamber
has developed a range of unique trial management procedures since its
inception.152 These procedures have been amended to respond to the issues and
challenges which have arisen during the course of the Trial Chamber’s first
trial.153 The ECCC Internal Rules set out the applicable Cambodian procedure
for proceedings before it. These rules were recently updated in September
2010.154
5.2
Developing innovations in trial management
(a)
Structure of the trial
The rules of procedure of the international ad hoc tribunals follow the
traditional adversarial trial structure. These rules require that the
structure of the trial start with the presentation of the prosecution case
and then the presentation of the defence. By contrast, Internal Rule 91
provides that:155
“The Chamber shall hear the Civil Parties, witnesses and
experts in the order it considers useful.”
In Case 001 the Trial Chamber chose to hear evidence by topic or
subject. For instance, the Trial Chamber indicated it would hear evidence
on such topics as “issues relating to M-13”, “armed conflict” and “the
establishment of S-21 and Takmao prison”.156 This approach to the trial
structure does not draw on either the Cambodian Code of Criminal
151
See Notice of Appeal by the Co-Lawyers for Civil Party Group 3, Supreme Court Chamber
ECCC, Case No 001/18-07-2007-ECCC/SC, 18 August 2010, and Notice of Appeal of CoLawyers for Civil Parties (Group 2) and Grounds of Appeal against Judgment, Supreme Court
Chamber ECCC, Case No 001/18-07-2007-ECCC/SC, 6 September 2010.
152
Kate Gibson and Daniella Rudy, ‘A new model of international criminal procedure? The progress
of the Duch Trial at the ECCC’ (2009) 7 Journal of International Criminal Justice 1005, 1005;
Robert Petit and Anees Ahmed, ‘A review of the Jurisprudence of the Khmer Rouge Tribunal’
(2010) 8 Journal of International Human Rights 165, 82.
153
Robert Petit and Anees Ahmed, ‘A review of the Jurisprudence of the Khmer Rouge Tribunal’
(2010) 8 Journal of International Human Rights 165, 82.
154
Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev.6), 17 September 2010.
155
Ibid r 91.
156
Extraordinary Chambers in the Courts of Cambodia, Transcript of Proceedings of the Trial
Chamber Case No. 001/18-07-2007-ECCC/TC KAING GUEK EAV, 31 March 2009, 69.
tmpb6e2
May 2011
18
Procedure or other civil law systems.157 Rather the reasoning behind this
approach may have been an attempt to effectively manage the large scale
of the trial and avoid confusion.
It is unclear at this stage whether this ‘topic by topic’ approach will be
adopted in Case 002. Case 002 will involve even more issues and more
witnesses than Case 001, given that there are four defendants. Ensuring
that the trial is manageable will therefore be a key concern of the Trial
Chamber. It has been argued by some legal commentators that the
adoption of such a ‘topic by topic’ approach may have a number of
advantages. For instance, they argue that it will assist in the drafting of
closing briefs and the final judgement leading to a quicker resolution of
the case. However, the approach has been criticised as having a range of
limitations including the risks of presupposing the relevant issues and the
possible limitations of categorising witnesses into specific topic areas.158
(b)
The role of Civil Parties and the VSS
One of the of the major innovations of the Trial Chamber is the role
given to victims of crimes that fall under the jurisdiction of it. The
International Criminal Tribunal for Rwanda and the International
Criminal Tribunal for the former Yugoslavia (“ICTY”) have been
criticised for the limited role they afford to victims to participate in
proceedings beyond appearing as a witness. By contrast, at the ECCC,
victims are able to participate in proceedings as Civil Parties.159 This
means that they are recognised as parties to the proceedings and are
allowed to claim collective and moral reparations.160
Herman argues that in order to participate meaningfully in the
proceedings, victims require sufficient support from either nongovernment organisations or the VSS of the ECCC.161 The VSS
therefore has a critical role to play in enabling victims to participate in
the proceedings and managing their expectations.162 The role of the VSS
under Internal Rule 12bis is wide ranging.163 It includes informing
victims about their rights relating to participation and reparations, and
assisting them to file complaints and Civil Party applications to the Trial
Chamber. From a practical perspective this may involve assisting with
obtaining legal advice, supporting legal representatives and assisting to
facilitate the grouping and collective representation of victims. The VSS
157
of the Duch Trial at the ECCC’ (2009) 7 Journal of International Criminal Justice 1005, 1008,
1009.
158
Ibid.
159
Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev.6), 17 September 2010,
r23.
160
Ibid.
161
Johanna Herman, Researching for Justice: the participation of victims at the Extraordinary
Chambers of the Courts of Cambodia, Centre on Human Rights in Conflict Policy Paper No. 5,
September 2010, 3.
162
See, Extraordinary Chambers in the Courts of Cambodia, Victims Support Section
<http://www.eccc.gov.kh/english/victims_unit.aspx>.
163
r12bis.
tmpb6e2
May 2011
19
also supports the work of the Co-Prosecutors and the Co-Investigating
Judges by processing complaints and Civil Party applications.164
(c)
Civil Party applications
There have been a number of key changes to trial management procedure
in relation to the participation of Civil Parties in Case 002. Amendments
to the Internal Rules adopted on 9 February 2010 provide that Civil Party
applications can no longer be received during the trial.165 The changes
were intended to improve the efficiency and manageability of the trial.
The deadline for the filing of all Civil Party applications is now 15 days
after notification of the conclusion of the judicial investigation. The CoInvestigating Judges may reject Civil Party applications at any time until
the date of the Closing Order.166
This change to the Internal Rules has been applied to Case 002. For the
VSS it has meant that the time for submitting civil party applications has
been reduced. In the course of the judicial investigation of Case 002, the
VSS submitted more than three thousand Civil Party applications to the
Co-Investigating Judges. The Co-Investigating Judges issued orders in
respect of the admissibility of a total of 3,988 applications before the
issuing of the Closing Order on 15 September 2010.167 The significant
number of Civil Party participants make Case 002 very important from
the perspective of victim participation in international criminal justice.
(d)
Legal representation and the establishment of Civil Party Lead CoLawyers Section
Case 001 highlighted a number of limitations of the existing rules for
dealing effectively with the participation of victims on such a large scale.
The issue of Civil Parties asking questions of the witnesses through their
lawyers is a strong example of some of the challenges that arose in Case
001 in relation to Civil Parties. A lack of coordination among the eight
Civil Party lawyers meant that there was often repetitive questioning.
This slowed down the trial and there were complaints made by the
Defence concerning the scope of questioning by the Civil Parties.168
Some of the amendments to the Internal Rules in February 2010 and
September 2010 were intended to address these issues. The amendments
created a new role for two Civil Party Lead Co-Lawyers and established
a new Civil Party Lead Co-Lawyers Section. In a press release the
ECCC stated that:
164
See, Extraordinary Chambers in the Courts of Cambodia, Victims Support Section
165
r 23bis; Extraordinary Chambers in the Courts of Cambodia, Sixth ECCC Plenary session
concludes,< http://www.eccc.gov.kh/english/news.view.aspx?doc_id=311 >.
166
r 23bis.
167
Extraordinary Chambers in the Courts of Cambodia, Closing order, Case No. 002/19-09-2007ECCC-OCIJ, 15 September 2010; Extraordinary Chambers in the Courts of Cambodia, Internal
Rules (Rev.6), 17 September 2010, r 23bis.
168
Johanna Herman, Researching for Justice: the participation of victims at the Extraordinary
Chambers of the Courts of Cambodia, Centre on Human Rights in Conflict Policy Paper No. 5,
September 2010, 3.
tmpb6e2
May 2011
20
“The new scheme as adopted is intended to balance the rights of
all parties, to safeguard the ability of the Trial Chamber to
achieve its mandate while maintaining Civil Party participation,
and to enhance the quality of Civil Party representation.”169
Under this new system, the two Civil Party Lead Co-Lawyers will bear
ultimate responsibility for the overall advocacy, strategy and in-court
presentation of the interests of the consolidated group of Civil Parties.
The amended rules emphasise that the Lead Co-Lawyers will need to
obtain the views of the Civil Party Lawyers and endeavour to reach a
consensus in order to coordinate the representation of Civil Parties.170
The creation of these roles is arguably designed to enhance the effective
organisation of Civil Party representation.171
(e)
Increased mandate for VSS: Non-Judicial Measures and Collective and
Moral Reparations
After the judgement was handed down in Case 001 there were a number
of criticisms made by non-government organisations (“NGOs”) about
the sufficiency of reparations. For instance, in an open letter a number
of NGOs including the Cambodian Human Rights & Development
Association and the Khmer Institute of Democracy outlined some of
these concerns:
“The Chamber pronounced only to publish the names of the
victims and to compile a record of Duch’s statements of
confession and remorse – a remedy which fell well short of the
civil parties’ collective request. Much of the Judges’ decision
was due to the strict limitations of the current procedural rules.
The reactions of the civil parties now increase the pressure on
the Court to change these rules and to provide so [sic] more
flexibility to make its reparations mandate a reality, at least for
the victims in Case 002.”172
Amendments to the ECCC Internal Rules adopted in February and
September 2010 go some way to addressing concerns regarding
reparations through the expansion of the VSS mandate. The VSS has
been granted the power to develop and implement non-judicial programs
and measures which address the broader interests of victims. Such
programs may be developed and implemented in collaboration or
partnership with organisations external to the ECCC, such as
governments and non-government organisations.173
The new rules will also allow the Civil Party Lead Co-Lawyers to seek
specific moral and collective reparation measures to be designed or
169
Extraordinary Chambers in the Courts of Cambodia, 7th Plenary Session of ECCC concludes, 9
February 2010,< http://www.eccc.gov.kh/english/news.view.aspx?doc_id=336>.
170
Extraordinary Chambers in the Courts of Cambodia, 7th Plenary Session of ECCC concludes, 9
February 2010,< http://www.eccc.gov.kh/english/news.view.aspx?doc_id=336 >.
171
r 12.
172
Saray Thun, Chhaya Hang, Sam Oeum Sok, Karine Bonneau, Saray Run, The ECCC at a
Crossroad: Making Victim Participation Meaningful ahead of the Second Trial,
Civil Society Memo, 13 September 2010, 2.
173
r 12bis.
tmpb6e2
May 2011
21
identified in collaboration with the VSS and implemented with external
funding.174
The new reparation schemes will be applied to the proceedings in Case
002. These changes are arguably intended to give the VSS broader scope
to encourage deeper levels of victim participation and facilitate greater
levels of redress for the crimes they have suffered.
(f)
Time management and trial management meetings
Proceedings at the Trial Chamber were subject to criticism on the basis
that its first trial was perceived to take too long.175 In response, the Trial
Chamber took steps to respond to such criticisms and speed up the
process. The Trial Chamber did this through the introduction of time
limits and the usage of trial management meetings in Case 001.176 It is
likely that these trial management mechanisms will also be utilised in
Case 002 to ensure that the trial progresses in a timely manner.
6
Conclusion
Case 001 has been a very significant case in international criminal law. The case
raised many important issues that went to the heart of individual responsibility
for international crimes. From the perspective of transitional justice it has been a
critical step toward accountability in Cambodia for acts committed under the
Khmer Rouge regime.
The Trial Chamber in Case 001 adopted a range of unique and innovative
procedures in the context of the trial. Case 001 was the first test of the Internal
Rules or ECCC Law in practice. These Internal Rules have since been amended
to respond to the issues and challenges which have arisen during the course of the
Trial Chamber’s first trial.
The effectiveness of these trial management procedures is likely to be curial to
the ultimate legitimacy and workability of the Trial Chamber in Case 002. This
in turn may have significant implications for the approaches to trial management
adopted by the International Criminal Court or other ad hoc international
tribunals.
Moreover Case 001 the first example of an international criminal trial in which
victims and their families have been able to participate as civil parties. The
effectiveness and benefit of this participation is an important step forward in
international criminal justice. While acknowledging that the trial process is still
a long way from perfection, Case 001 and the ECCC have offered potential
approaches to international criminal justice that are more inclusive and
participatory than current models in international criminal law which can only be
seen as a positive development.
174
r 23 and 23 quinquies.
175
of the Duch Trial at the ECCC’ (2009) 7 Journal of International Criminal Justice 1005, 1006;
Jean Galbraith, ‘The pace of international criminal justice,’ (2009) 31 Michigan Journal of
International Law 79, 142.
176
Extraordinary Chambers in the Courts of Cambodia, Transcript of Proceedings of the Trial
Chamber Case No. 001/18-07-2007-ECCC/TC KAING GUEK EAV, 15 June 2009, 4 and 5.
tmpb6e2
May 2011
22
tmpb6e2
May 2011
23
Reference List
1. Articles/Books /Reports
Galbraith, J, ‘The pace of international criminal justice,’ (2009) 31 Michigan Journal of
International Law 79.
Gibson, K and Rudy, D, ‘A new model of international criminal procedure? The progress
of the Duch Trial at the ECCC’ (2009) 7 Journal of International Criminal Justice 1005.
Petit, R and Ahmed, A, ‘A review of the Jurisprudence of the Khmer Rouge Tribunal’
(2010) 8 Journal of International Human Rights 165.
Thun, S et al, The ECCC at a Crossroad: Making Victim Participation Meaningful ahead
of the Second Trial, Civil Society Memo, 13 September 2010.
2. Case Law
Case against Kaing Guek Eav, Case No. 001/18-07-2007-ECCC-TC, Judgement, 26 July
2010.
I.H. and Others v Austria, Judgment of 20 April 2006, ECtHR (no.42780/98), 20 April
2006.
Pelissier and Sassi v. France, Judgment of 25 March 1999, ECtHR (no.25444/94), 25
March 1999.
Prosecutor v Kordic et al., Judgement, ICTY Appeals Chamber (IT-95-14/2-A), 17
December 2004 (“Kordic Appeal Judgement”).
3. Treaties
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth
Geneva Convention), opened for signature 12 August 1949, 75 UNTS 287 (entered into
force 21 October 1950).
4. Other Sources
Appeal Brief by the Co-Lawyers for Kaing Guek Eav Alias “Duch” against the Trial
Chamber Judgement of 26 July 2010, Supreme Court Chamber ECCC, Case No 001/1807-2007-ECCC/SC, 18 November 2010.
Celebici Appeals Judgement, para. 412, cited in Co-Prosecutors’ Appeal Against the
Judgement of the Trial Chamber in the case of Kaing Guek Eave Alias Duch, Supreme
Court Chamber ECCC, Case No 001/18-07-2007-ECCC/SC, 13 October 2010.
Co-Prosecutors’ Appeal Against the Judgement of the Trial Chamber in the case of Kaing
Guek Eave Alias Duch, Supreme Court Chamber ECCC, Case No 001/18-07-2007ECCC/SC, 13 October 2010.
Extraordinary Chambers in the Courts of Cambodia, 7th Plenary Session of ECCC
concludes, 9 February 2010,
<http://www.eccc.gov.kh/english/news.view.aspx?doc_id=336>.
tmpb6e2
May 2011
24
Extraordinary Chambers in the Courts of Cambodia, Closing order, Case No. 002/19-092007-ECCC-OCIJ, 15 September 2010.
Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev.6), 17
September 2010.
Extraordinary Chambers in the Courts of Cambodia, Transcript of Proceedings of the
Trial Chamber Case No. 001/18-07-2007-ECCC/TC KAING GUEK EAV, 15 June 2009.
Extraordinary Chambers in the Courts of Cambodia, Victims Support Section
Herman, J, Researching for Justice: the participation of victims at the Extraordinary
Chambers of the Courts of Cambodia, Centre on Human Rights in Conflict Policy Paper
No. 5, September 2010.
Notice of Appeal of Co-Lawyers for Civil Parties (Group 2) and Grounds of Appeal
against Judgment, Supreme Court Chamber ECCC, Case No 001/18-07-2007-ECCC/SC,
6 September 2010.
Notice of Appeal by the Co-Lawyers for Civil Party Group 3, Supreme Court Chamber
ECCC, Case No 001/18-07-2007-ECCC/SC, 18 August 2010.
Written Record of Interview of Duch by the Co-Investigating Judges on 21 January
2008”, E3/11, ERN (English) 00159557.
tmpb6e2
May 2011
25

The ECCC - From Case 001 to Case 002

Transcription

Similar documents

marketing options - Coeur d`Alene Chamber of Commerce

productspecification

Chamber Dollars brochure 2016

September - Chamber of Commerce of Eastern CT

Chamber News - Lake Stevens Chamber of Commerce

Skill is just the tip of the iceberg.

Chamber Connection - Central Pinellas Chamber of Commerce

Chamber Connection

Fall, 2010 - Columbia County Chamber of Commerce

March 2015 - Washington Illinois Chamber of Commerce