THE EXTRAORDINARY CHAMBERS OF CAMBODIA AT A GLANCE

by Aubrey Ardema

For four months in summer 2004, I assisted in coordinating a six-week legal training course in Phnom Penh, Cambodia with the Documentation Center of Cambodia, a nonprofit dedicated to maintaining the historical record of the Khmer Rouge. The courses aim was to educate part of the local community on the law to be applied at the Extraordinary Chambers of Cambodia (EC) in an attempt to help that community understand proceedings before the EC. The EC is being established in Cambodia to try the remaining leaders of the Khmer Rouge for a range of crimes committed against the Cambodian people including the deaths of 800,000 to two million people. (The actual number is unknown due to a lack of census data pre-Khmer Rouge.) This article is intended to lay a basic legal framework for understanding the EC.

Creation

The Extraordinary Chambers of Cambodia (EC) will sit in Phnom Penh, Cambodia. Legally, it is a product of two instruments, namely the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (EC Statute) and 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 Democratic Kampuchea (UN-RGC Agreement). The Cambodian government ratified the EC Statute in October 2004. Both instruments state that they act as binding international treaties governed by the law of treaties. (This is notable because neither instrument is an agreement between Cambodia and another State, a typical requirement of an international treaty.)

Governance

The EC are special chambers within the ordinary chambers of the Cambodian judicial system. They are not part of the United Nations. The EC is a hybrid court with national and international Judges and two Co-Prosecutors, one national and one international. The UN and the Cambodian government oversee the EC. Judges and Prosecutors shall be independent in the performance of their functions. The Cambodian government is responsible for supplying the Cambodian staff, and the UN is responsible for providing a list of potential international staff from which the Cambodian government chooses the international staff, including respective Judges and Prosecutors.

Composition

There are two levels of chambers at the EC. Decisions and judgments require a supermajority vote. The supermajority vote is a new concept in international criminal law, deviating from the standard majority vote requirement. In the Trial Chambers, at least four votes are needed to make decisions and judgments. And in the Appellate Chamber, at least five votes are needed. There will be five Judges in the Trial Chamber (three Cambodian and two international). There will be seven Judges in the Appellate Chamber (four Cambodian and three international). The Office of the Prosecutor will consist of two Co-Prosecutors, one Cambodian and one international. Fifty percent of the staff should be Cambodian nationals.

Jurisdiction

The EC has a limited jurisdiction. Its temporal jurisdiction consists of crimes committed between April 17, 1975 (the day the Khmer Rouge arrived in Phnom Penh) and January 6, 1979 (the day the Khmer Rouge was ousted from power). Additionally, the EC is limited by personal jurisdiction. It can only try a person if that person was (1) a senior leader of Democratic Kampuchea, or (2) was most responsible for the crimes in the EC Statute. Lastly, the ECs subject matter jurisdiction consists of five international crimes and three domestic crimes. The five international crimes are genocide, crimes against humanity, war crimes, destruction of cultural property, and crimes against international protected persons. The three domestic crimes are murder, torture, and religious persecution.

Genocide

From a contemporary international criminal law perspective, the three seminal (not necessarily historical) international crimes are genocide, crimes against humanity, and war crimes. Genocide consists of the following acts committed with 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 (including torture and rape); deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part (such as deliberately withholding food and medicine); imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. The trickiest part in securing a genocide conviction, for any court, is proving the intent element of the crime. The same will hold true in proceedings before the EC. Because the alleged crime of genocide occurred within Cambodia, the Co-Prosecutors will be challenged in making the argument that the acts in question were committed with the intent to destroy, in whole or in part, one of the protected groups in the crime of genocide. While there might be good evidence supporting a conviction of genocide against the Cham Muslim community, the Chinese or Vietnamese minorities, or Buddhist monks, the bulk of killings or other acts against the broader Cambodian population will be difficult to explain legally as genocide. However, these other acts may fall within the realm of another international crime.

Crimes Against Humanity

Crimes against humanity (CAH) are any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecution on political, racial, and religious grounds; and other inhuman acts. This international crime is likely to take center stage in proceedings before the EC. First, arguably a CAH is the easiest international crime for a Prosecutor to secure a conviction. Second, the broader concept of CAH is to encompass crimes that are widespread or systematic. Based on the facts of the situation in Cambodia from 1975 to 1979, CAH may best legally explain what happened. The intent requirement is not as narrowly defined as that found in genocide. Likewise, there is no need to prove that the acts took place in the context of an armed conflict as is required for a war crimes conviction.

War Crimes

Lastly, war crimes occur when the following acts are committed as part of a plan or policy or as part of a large-scale commission of such crimes: 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; and taking civilians as hostages. The key to a conviction of a war crime is the element of armed conflict. If the Prosecutor cannot prove an armed conflict was taking place at the time of an act, then that Prosecutor is not going to secure a war crimes conviction. In order for war crimes to substantially explain the numerous alleged killings and other unlawful acts, an EC Prosecutor must demonstrate that a sustained internal armed conflict was taking place within Cambodia from 1975-1979. It is doubtful that the factual situation will support such a claim, making it unlikely that war crimes will explain the bulk of killings and other atrocities. War crimes convictions may be a more viable option for those acts perpetrated on the Vietnamese during their incursion into Cambodian territory in early 1979.

Legal Areas to Watch at the EC and Other Concerns

Practically speaking, the main area of concern for the EC at the moment is the issue of adequate funding. The estimated cost of proceedings before the EC over a three year period is sixty million dollars (US). Japan has pledged fifty percent of this total cost.

Legally speaking, proceedings before the EC should contribute important developments in the areas of crimes against humanity (see discussion above) and theories of responsibility. Two theories of responsibility in particular that should advance through EC proceedings are command responsibility and joint criminal enterprise. Command responsibility is the traditional notion that a superior within a structure can be held liable for subordinates conduct. It is typically applied in a formal military context although this theory can be applied in other broader contexts depending on the factual situation at a given time. Joint criminal enterprise (JCE) is a more amorphous theory. There is much room for development in the theory and application of JCE. The basic concept is that there is a criminal organization with members, and those members are liable jointly and severally for the acts of the other members. This is a concept being applied and developed regularly before other established international criminal tribunals and hybrid criminal courts.