¹ Draft 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, dated 17 03 2003. Approved by GA Res 57/228B, 13 05 2003.Google Scholar

² Including France, Japan, the United States, Australia, India, and the Philippines.Google Scholar

³ Art 1, Special Law; Art 1, UN Agreement.Google Scholar

⁴ Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135, dated 15 03 1999, UN Doc No A/53/850 and S/1999/231 (Report of the Group of Experts), para 18.Google Scholar

⁵ Report of the Group of Experts, para 35.Google Scholar

⁶ The Paris Peace Accords signed in 1991 did not include an express obligation on either the Cambodian government or the United Nations Transitional Authority in Cambodia (UNTAC) to prosecute offenders. Two trials were conducted in absentia after the fall of the regime, of Pol Pot and Ieng Sary, but these trials are not considered to be more than show trials. The proposed trial of Ta Mok, a Khmer Rouge general, for genocide under Cambodian law and by a Cambodian militarycourt was postponed in 1999 pursuant to a controversial law permitting the extension of detention without trial by up to three years.Google Scholar

⁷ The ad hoc international criminal tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) are considered first-generation international tribunals, while the Special Court for Sierra Leone is a second-generation tribunal: see Cryer, R ‘A “Special Court” for Sierra Leone?’ 50 ICLQ (2001) 443. Regulation 64 panels in Kosovo and Special Panels in East Timor are other examples of third-generation international tribunals:Google Scholarsee Dickinson, L ‘The Promise of Hybrid Courts’ 97 AJIL (2003) 295,Google ScholarLinton, S ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’ 12 Criminal Law Forum (2001) 185Google Scholarand Kartenstein, S ‘Hybrid Tribunals: Searching for Justice in East Timor’ 16 Harvard Human Rights Journal (2003) 245.Google Scholar

⁸ Both Amnesty International and Human Rights Watch, along with other human rights groups, have been highly critical of the Extraordinary Chambers: see Amnesty International, Cambodia: Amnesty International's preliminary views and concerns about the draft agreement for the establishment of a Khmer Rouge special tribunal, 21 03 2003 (ASA 23/003/2003) and Human Rights Watch, Serious Flaws: Why the UN General Assembly Should Require Changes to the Draft Khmer Rouge Tribunal Agreement, available at <http://hrw.org/asia/cambodia.php>..>Google Scholar

⁹ Letter dated 21 06 1997 to the Secretary-General from the First and Second Prime Ministers of Cambodia, contained in Identical letters dated 24 06 1997 to the General Assembly and the Security Council from the Secretary-General, UN Doc A/51/930—S/1997/48.Google Scholar

¹⁰ GA Res 52/135, para 16.Google Scholar

¹¹ Report of the Group of Experts, paras 131–8.Google Scholar

¹² Ibid, para 219.

¹³ Identical letters dated 15 03 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council.Google Scholar

¹⁴ There had been a significant change in the Cambodian government following the request to the United Nations in 1997: the then Second Prime Minister, Hun Sen, staged a coup in July 1997 assuming complete control. This action was ‘confirmed’ by a ‘tainted electoral process’ in July 1998, in which Hun Sen was elected Prime Minister: Ratner, S and Abrams, JAccountability for Human Rights Atrocities in International Law (OxfordOxford University Press 2001) 281.Google Scholar

¹⁵ China, as a major ally of Vietnam, had historically vetoed Security Council resolutions dealing with the situation in Cambodia. However, the Chinese government had told the Group of Experts that it would not oppose an international tribunal if requested by the Cambodian government: Ratner and Abrams, above n 14, 281.Google Scholar

¹⁶ Letter from Hun Sen, Prime Minister of Cambodia to HE Thomas Hammarberg, Special Representative of the UN Secretary-General for Human Rights in Cambodia dated 17 07 1999.Google Scholar

¹⁷ Shenon, P ‘UN Plans Joint War Crimes Tribunal for Khmer Rouge’ New York Times, 12 08 1999.Google Scholar

¹⁸ A Memorandum of Understanding was reached in May 2000, although there is some dispute as to the intended effect of this document and the extent to which it was incorporated into the Special Law: Lynch, C ‘UN Warns Cambodia on War Crimes Tribunal’ Washington Post, 3 02 2001. The Special Law was introduced in 12 2000, but was referred to the Cambodian Constitutional Court for approval: ‘Cambodia set for Khmer Rouge Trials’ BBC Online 7 Aug 2001.Google Scholar

¹⁹ Report of the Secretary-General on Khmer Rouge trials, 31 03 2003, UN Doc No A/57/769 (hereafter Secretary-General's Report), para 14.Google Scholar

²⁰ GA Res 57/228,18 12 2002.Google Scholar

²¹ Secretary-General's Report, para 11.Google Scholar

²² GA Res 57/228, Preamble and paragraph 2. See also Secretary-General's Report, para 10.Google Scholar

²³ Ibid, para 10(a).

²⁴ GA Res 57/228 para 4(a): see also Secretary-General's Report, paras 10(b) and 12.Google Scholar

²⁵ The proposed amendments are set out in the Secretary-General's Report, at para 16, and include simplifying the structure of the tribunal and requiring a majority of international judges in each chamber.Google Scholar

²⁶ Ibid, para 23.

²⁷ See UN Press Release, UN and Cambodia Reach Draft Agreement for Prosecuting Khmer Rouge Crimes, 17 03 2003, UN Press Release GA/10135 of 13 05 2003, and UN Press Release, UN, Cambodia Sign Agreement to prosecute former Khmer Rouge leaders, 6 06 2003.Google Scholar

²⁸ Art 32, UN Agreement. The only outstanding legal requirement is for the Cambodian government to obtain the ratification of Cambodia of the agreement: Art 30, UN Agreement. However, Art 29 provides for the phased commencement of the Extraordinary Chambers.Google Scholar

²⁹ Letter dated 5 05 2003 from the Permanent Representative of Cambodia to the United Nations addressed to the Secretary-General, UN Doc No A/57/808. The two suspects are Ta Mok, a former general, and Duch, the former head of the Tuol Sleng prison.Google Scholar

³⁰ Dickinson, , above n 7, at 595.Google Scholar

³¹ For further details of these tribunals refer to the sources cited above, n 7.Google Scholar

³² See Report on the Judicial Status of the ICTY and the Prospects for referring Certain Cases to National Courts, UN Doc S/2002/678.Google Scholar

³³ SC Res 827 of 25 05 1993 for the ICTY; SCR 955 of 8 11 1994 for the ICTR.Google Scholar

³⁴ SC Res 1244 of 10 06 1999 authorizes the establishment of an international civil presence in Kosovo in order to provide an interim administration for Kosovo. Similarly, SC Res 1272 of 25 10 1999 granted UNTAET extensive power to administer East Timor during a transitional period to independence.Google Scholar

³⁵ The interim administrations exercised all legislative and executive authority, including the administration of the judiciary: UNMIK Regulation 1 (Kosovo) and SC Res 1272 (East Timor). See Strohmeyer, H ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, 95 AJIL (2001) 46.Google Scholar

³⁶ Report of Group of Experts, para 112. The Group of Experts suggested that the signatories to the Paris Agreements (in particular Thailand, Laos and Vietnam) have an obligation to cooperate with any transitional justice mechanism, para 119.Google Scholar

³⁷ Eg, the transfer of former Liberian President Taylor to the Special Court from Nigeria is currently the subject of negotiations: UN Press Release ‘Sierra Leone Court says Taylor must face justice to ensure lasting peace in Liberia’ 12 08 2003. In terms of medical assistance, the Special Court was unable to transfer Foday Sankoh to another state to obtain medical treatment: UN Press Release Former Sierra Leonean rebel leader, indicted war criminal Foday Sankoh dies, 30 07 2003;.Google Scholar

³⁸ Cambodia and Thailand entered into an extradition agreement in 1998 that is still to be ratified by the Thai government. There are two agreements for judicial assistance signed in 1960. The Thai government has expressed its willingness to cooperate with any Cambodian tribunal: Report of the Group of Experts, para 121.Google Scholar

³⁹ Art 25, UN Agreement.Google Scholar

⁴⁰ The Security Council was involved in the drafting of the bilateral agreement for the Special Court, but did not take action to approve or authorize the agreement: see Cryer, above n 7.Google Scholar

⁴¹ Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 01 2002.Google Scholar

⁴² Rome Statute of the International Criminal Court, Doc A/CONF 183/9,17 07 1998.Google Scholar

⁴³ Art 1, UN Agreement.Google Scholar

⁴⁴ Art 2(2), UN Agreement.Google Scholar

⁴⁵ Art 26, VCLT.Google Scholar

⁴⁶ Art 27, VCLT.Google Scholar

⁴⁷ Eg, the inconsistency between the right to defend themselves with the assistance of their counsel (Art 35, Special Law) with the right to have counsel appointed if the accused cannot afford counsel (Art 13(2), UN Agreement).Google Scholar

⁴⁸ Art 2(3), UN Agreement.Google Scholar

⁴⁹ Art 28, UN Agreement.Google Scholar

⁵⁰ Secretary-General's Report, para 51.Google Scholar

⁵¹ Ibid, para 51.

⁵² Art 29, UN Agreement.Google Scholar

⁵³ Art 34, ICJ Statute, provides that only states can be a party to cases before the ICJ.Google Scholar

⁵⁴ Ch IV, ICJ Statute; Art 96(1) UN Charter.Google Scholar

⁵⁵ Art 66(b) and Annex VCLT. This is uncertain as the drafting of these provisions is such that they are arguably limited to states.Google Scholar

⁵⁶ The ICTR and ICTY are required to provide regular reports to the Security Council by their constitutive resolutions. Mission reports are also required on a regular basis for Kosovo and East Timor, and the Secretary-General reports to the Security Council on the progress of the Special Court for Sierra Leone.Google Scholar

⁵⁷ Art 12, UN Agreement; Art 34, Special Law. This right is not absolute and may be limited ‘in exceptional circumstances’.Google Scholar

⁵⁸ See Secretary-General's Report, para 25.Google Scholar

⁵⁹ Art 3(2), UN Agreement. The previous draft (and the Special Law) had provided for a more complicated structure, with a three-tier structure consisting of a Trial Chamber, an Appeals Chamber and a Supreme Court Chamber (see Art 9, Special Law). In the current, simpler model, the Supreme Court will have both appellate and final instance jurisdiction: Art 3(2)(b), UN Agreement.Google Scholar

⁶⁰ Art 3, UN Agreement; Arts 10 and 11, Special Law.Google Scholar

⁶¹ Secretary-General's Report, paras 16(c) and 17.Google Scholar

⁶² Several reports have highlighted the vulnerability of the Cambodian judiciary to political pressure: see country reports at <http://www.amnesty.org>. The Secretary General's Special Representative for Human Rights in Cambodia has consistently highlighted the difficulty of ensuring a fair trial: see the most recent report: Doc No E/CN.4/2003/114, 18 12 2002..+The+Secretary+General's+Special+Representative+for+Human+Rights+in+Cambodia+has+consistently+highlighted+the+difficulty+of+ensuring+a+fair+trial:+see+the+most+recent+report:+Doc+No+E/CN.4/2003/114,+18+12+2002.>Google Scholar

⁶³ Secretary-General's Report, para 10(c).Google Scholar

⁶⁴ OSCE, Department of Human Rights and Rule of Law, Legal Systems Monitoring Section. Kosovo's War Crimes Trials: A Review, 09 2003.Google Scholar

⁶⁵ Secretary-General's Report, paras 16 and 17.Google Scholar

⁶⁶ Art 14, Special Law. Judges are to attempt to achieve unanimity in their decisions, but where this is not possible, a decision in the Trial Chamber requires the affirmative vote of at least four judges, and a decision of the Supreme Court Chamber requires the affirmative vote of at least five judges.Google Scholar

⁶⁷ Human Rights Watch, above n 8, 5.Google Scholar

⁶⁸ Art 6, UN Agreement; Arts 16–19, Special Law.Google Scholar

⁶⁹ Art 6(4), UN Agreement; Art 20, Special Law.Google Scholar

⁷⁰ Art 7, UN Agreement; Art 20, Special Law.Google Scholar

⁷¹ Art 5, UN Agreement; Arts 23 and 26, Special Law.Google Scholar

⁷² Arts 5(4) and 7, UN Agreement; Arts 20 and 23, Special Law.Google Scholar

⁷³ Art 11 (judges), 18 (prosecutors) and 26 (investigating judges), Special Law.Google Scholar

⁷⁴ See Human Rights Watch, above n 8.Google Scholar

⁷⁵ Art 6(3), UN Agreement; Art 19, Special Law.Google Scholar

⁷⁶ See sources cited above n 8.Google Scholar

⁷⁷ Secretary-General's Report, paras 16 and 17.Google Scholar

⁷⁸ Note that the term ‘affirmative’ vote is not clear: does this mean that there must be an affirmative vote for the continuation or discontinuation of the prosecution/investigation/trial?Google Scholar

⁷⁹ Ch IX, Special Law and Art 8, UN Agreement.Google Scholar

⁸⁰ Art 35, Special Law.Google Scholar

⁸¹ Art 13, UN Agreement. See also Secretary-General's Report, para 49.Google Scholar

⁸² Art 17(c), UN Agreement.Google Scholar

⁸³ The Registry of the Special Court for Sierra Leone established an Office of the Defence within the structure of the tribunal, although this office was not originally contained in the Statute for the Special Court. In East Timor, there is a Public Defenders Unit funded and staffed by East Timor (Katzenstein, above n 7), while in Kosovo, a regulation dealing with access to legal representation was not promulgated until 10 2001: UNMIK Regulation 2001/28 On The Rights of Persons Arrested by Law Enforcement Authorities, 12 10 2001. The procedure of the ICTR and ICTR is to meet the costs of defence counsel from the budget.Google Scholar

⁸⁴ Informal discussions with ICTY and ICTR staff—on file with the author.Google Scholar

⁸⁵ Art 21(1). Art 21(2) specifies the immunities to be provided to counsel.Google Scholar

⁸⁶ Art 22, UN Agreement.Google Scholar

⁸⁷ Art 17, UN Agreement.Google Scholar

⁸⁸ Secretary-General's Report, para 56.Google Scholar

⁸⁹ GA Res 57/228B, 22 05 2003, para 3.Google Scholar

⁹⁰ Secretary-General's Report, para 74.Google Scholar

⁹¹ GA Res 57/228B, para 3.Google Scholar

⁹² Secretary-General's Report, para 77.Google Scholar

⁹³ The original budget was a total of US$114.6 million for three years of the Special Court's operation, which was scaled down to US$57 million for the same three-year period: Letter dated 12 07 2001 from the Secretary-General to the Security Council, UN Doc S/2001/693. As the beginning of 07 2001, only US$35.4 million had been pledged; despite this the Secretary-General announced that the level of funding was sufficient to commence establishment of the Special Court. The Special Court is approximately US$14 million short for the current year. See also Cryer, above n 7.Google Scholar

⁹⁴ Press Release SG/A/813 Appointments to Sierra Leone Special Court, dated 26 07 2002.Google Scholar

⁹⁵ See Katzenstein, above n 7, and various OSCE Legal Systems Monitoring Section reports on the Criminal Justice System in Kosovo, available at <http://www.osce.org/kosovo/reports/justice/criminal>..>Google Scholar

⁹⁶ Information taken from the website of each organization.Google Scholar

⁹⁷ Art 2, Special Law.Google Scholar

⁹⁸ Report of the Group of Experts, pt II.Google Scholar

⁹⁹ Art 2, Special Law.Google Scholar

¹⁰⁰ Vietnam and Democratic Kampuchea had engaged in a low-intensity border war from 1975, which gradually intensified leading up to the invasion of Cambodia by Vietnam in 1979. There were also border skirmishes with Thailand and Laos.Google Scholar

¹⁰¹ Report of the Group of Experts, pt II.Google Scholar

¹⁰² Ibid, para 44.

¹⁰³ Art 11(1), UN Agreement.Google Scholar

¹⁰⁴ Art 40, Special Law.Google Scholar

¹⁰⁵ Art 11(2), UN Agreement.Google Scholar

¹⁰⁶ Art 10, Statute of the Special Court for Sierra Leone.Google Scholar

¹⁰⁷ Cambodia has been a party to the Convention on the Prevention and Punishment of Genocide 1948 since its entry into force in 1951. There is no evidence that the Government of Democratic Kampuchea denounced the Convention during the period of its regime.Google Scholar

¹⁰⁸ Report of the Group of Experts, para 61–5. See also Ratner and Abrams above n 14, 284–8 and Linton, above n 7.Google Scholar

¹⁰⁹ This definition differs slightly from the definition in Art 5 of the ICTY statute, which requires the acts to be ‘committed in armed conflict, whether international or internal in character, and directed against any civilian population’ and in Art 7 of the ICC Statute, which defines crimes against humanity as comprising a wider list of crimes ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. The definition is similar to that adopted in Art 2 of the Statute of the Special Court for Sierra Leone, although the latter statute includes ‘sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence’ in addition to rape, and also ethnicity as a prohibited ground of persecution.Google Scholar

¹¹⁰ Art 9, UN Agreement. See Art 7, ICC Statute and Art 3, ICTR Statute.Google Scholar

¹¹¹ Defined as specified grave breaches of the Geneva Conventions of 12 08 1949: Art 6, Special Law.Google Scholar

¹¹² Art 2 common to the four conventions.Google Scholar

¹¹³ It is doubtful that the Protocol represented customary international law during that period, and even if liability under international criminal law did exist at that stage, the internal conflict was comparatively limited: see discussion in Ratner and Abrams, above n 14.Google Scholar

¹¹⁴ Arts 7 and 8, Special Law.Google Scholar

¹¹⁵ The UN Convention on Torture was not concluded until 1984 (Cambodia acceded to the Convention in Oct 1992) so, unless the principles contained in the convention formed part of international customary law in 1975, the principles were not part of Cambodian law during the relevant period. For further discussion see Ratner and Abrams, above n 14, 296.Google Scholar

¹¹⁶ Arts 501, 503, 504, 505, 506, 507, and 508 of the 1956 Penal Code of Cambodia: Art 3, Special Law.Google Scholar

¹¹⁷ Arts 209 and 210 of the 1956 Penal Code of Cambodia: Art 3, Special Law.Google Scholar

¹¹⁸ Art 3, Special Law. The Penal Code otherwise provides that the limitations period is 10 years for felonies, five years for misdemeanours and one year for police infractions, therefore these period would have expired in 1989 at the latest (Arts 109–14).Google Scholar

¹¹⁹ Under the 1956 Penal Code, the death penalty was a sentencing option for some offences. However, in order to adhere to the provisions of the Cambodian Constitution, which precludes the death penalty, and to meet concerns of the United Nations, Art 38 of the Special Law provides that all penalties should be limited to imprisonment.Google Scholar

¹²⁰ See Linton, S, above n 7, and Ratner, and Abrams, , above n 14.Google Scholar

¹²¹ Strohmeyer, , above n 35.Google Scholar

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¹²³ Ratner, and Abrams, , above n 14, 303.Google Scholar

¹²⁴ Art 33, Special Law.Google Scholar

¹²⁵ 1986 Decree-Law 27 ‘Concerning Arrests, Holding in Custody, Temporary Detention, Release and Search of Domicile, Possessions, and the Person’ and 1980 Decree-Law 2 ‘Against Betraying the Revolution and Other Offences’.Google Scholar

¹²⁶ Strohmeyer, , above n 35 and OSCE reports, above nn 64 and 95.Google Scholar

¹²⁷ Strohmeyer, above n 35.Google Scholar

¹²⁸ Art 35, Special Law.Google Scholar

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¹³¹ Art 12(2), UN Agreement. This follows the wording in GA Res 57/228.Google Scholar

¹³² Art 12(2), UN Agreement.Google Scholar

¹³³ Art 13(1), UN Agreement.Google Scholar

¹³⁴ See reports cited above, n 8.Google Scholar

¹³⁵ The procedural guarantees are mainly set out in Part VI, ICC Statute.Google Scholar

¹³⁶ The applicable law for each tribunal is not the same as that of the ICC: see Art 20 ICTR Statute, Art 21 ICTY Statute, UNMIK Regulation 24 (Kosovo) and Art 17 of the Statute of the Special Court for Sierra Leone.Google Scholar

¹³⁷ UNTAET Regulation 2000/15 On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 06 2000. See Linton and Katzenstein, both above n 7.Google Scholar

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¹³⁹ The effect of Art 17 of the ICC Statute is that the ICC does not have primacy over national courts, and is intended to compliment domestic prosecutions.Google Scholar

¹⁴⁰ Art 17(l)(a), ICC Statute.Google Scholar

¹⁴¹ Arts 17(2) and 17(3), ICC Statute.Google Scholar

¹⁴² The ICC has jurisdiction only in relation to crimes committed after the entry into force of its statute, therefore, although Cambodia is a party to, and has ratified, the ICC Statute, the crimes committed during the relevant period are not within the ICC's temporal jurisdiction.Google Scholar

¹⁴³ Secretary-General's Report, para 30. See reports cited above, n 8.Google Scholar

¹⁴⁴ See Dickinson, , above n 7.Google Scholar

¹⁴⁵ See, eg, Burke-White, W ‘A Community of Courts: Toward a System of International Criminal Law Enforcement”, 24 Michigan Journal of International Law (2002) 1.Google Scholar