Extraordinary Language in the Courts of Cambodia: Interpreting the Limiting Language and Personal Jurisdiction of the Cambodian Tribunal
| Author | Sean Morrison |
| Position | Graduated from Case Western Reserve University School of Law with a concentration in International Law |
| Pages | 583-629 |
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EXTRAORDINARY LANGUAGE IN THE COURTS OF CAMBODIA: INTERPRETING THE LIMITING LANGUAGE AND PERSONAL JURISDICTION OF THE CAMBODIAN
TRIBUNAL
SEAN MORRISON*
I. INTRODUCTION
Over the last two decades, the world has resurrected the use of international criminal tribunals to try those culpable of war crimes, genocide, and crimes against humanity. More than forty years elapsed between the International Military Tribunals at Nuremburg and Tokyo and the modern system. The modern practice began with the ad-hoc tribunals for the former Yugoslavia and Rwanda, and culminated in the United Nations’ International Criminal Court (“ICC”). Part of this new regime of international criminal justice has arisen in the form of the so-called “hybrid” tribunals. These courts mix international and domestic laws and are established through agreements between the United Nations and the host country. Despite the emergence of the ICC, the global community has embraced these hybrid tribunals as the preferred course forward.
The latest hybrid tribunal to begin proceedings is the Extraordinary Chambers for the Courts of Cambodia (“ECCC”). The new court was established to prosecute those responsible for the atrocities committed during the Khmer Rouge regime in the 1970s. The ECCC has continued the common practice in hybrid tribunals of limiting its prosecutions, but there are still procedural questions facing the court as it prepares to conduct its trials. One of the most pressing questions the ECCC needs to address is the meaning of its limiting language found in 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 (“ECCC Statute”); specifically, whether this language is a description of personal jurisdiction, and if so, what the language means.
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* Sean Morrison graduated from Case Western Reserve University School of Law with a concentration in International Law. He worked for the prosecution at the Special Court for Sierra Leone in 2006. Currently, he is an Assistant Attorney General with the criminal division in American Samoa.
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This article will attempt to understand the function of the language of the ECCC Statute as well as interpret its scope. As the ECCC is a new institution, much of the analysis will rely on the procedures and structures of the other international criminal tribunals including the ICC, the ad-hoc tribunals, and the Special Court for Sierra Leone (“SCSL”). This comparison will create a spectrum against which the ECCC can compare itself in order to better understand where its own establishing language fits in the wider international criminal tribunal community.
II. THE EVOLUTION OF INTERNATIONAL CRIMINAL JUSTICE: FROM THE AD-HOC TRIBUNALS TO THE ECCC
To better put the ECCC in perspective, it is important to understand its place among the tribunals that came before it. Each new tribunal was established with the previous ones in mind. Each one has attempted to avoid the pitfalls of its predecessors and better serve the causes it purports to advance. Some of the factors that have evolved include the size, duration, and costs. Understanding the issues facing the other tribunals will help facilitate the ECCC in moving forward.
A. The Ad-Hoc Tribunals
The Ad-Hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (“ICTY”)1and the International Criminal Tribunal for Rwanda (“ICTR”),2were the first international criminal courts established since the International Military Tribunals in Nuremburg and Tokyo.3They were admittedly experimental, and it is widely recognized that the model will not be followed in the future.
Both the ICTY and the ICTR have failed to gain the support of the local populations they are supposed to represent. Within Rwanda and the countries that made up the former Yugoslavia, the ad-hoc tribunals are widely considered to be Western, imperialistic courts run by and for
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1S.C. Res. 808, ¶ 1, U.N. Doc. S/RES/808 (Feb. 22, 1993); S.C. Res. 827, ¶ 2, U.N. Doc. S/RES/827 (May 25, 1993).
2S.C. Res. 955, ¶ 1, U.N. Doc. S/RES/955 (Nov. 8, 1994).
3WILLIAM A. SCHABAS, THE UN INTERNATIONAL CRIMINAL TRIBUNALS: THE FORMER
YUGOSLAVIA, RWANDA, AND SIERRA LEONE 3 (2006).
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outsiders.4Meanwhile, the local citizens have little or no access to information about the courts and trials, except through local media, which is often biased against the tribunals.5
This lack of outreach to the communities the tribunals represent is largely the fault of the tribunals themselves. The ICTY did not even establish an outreach program until 1999, a full six years after its creation.6
Similarly, the ICTR information center in Kigali did not open until 2000, five years after the ICTR’s creation.7Both courts have been accused of ignoring the citizens and governments of the former Yugoslavia and Rwanda, respectively.8The opinion within Rwanda of the ICTR was so bad that at one point the Rwandan government temporarily severed diplomatic relations with the tribunal after the court ordered the release of a defendant due to procedural violations.9
One of the reasons the ad-hoc tribunals are so disconnected from the populations they are purporting to serve is that they are held too far away from the target countries. With the ICTY in The Hague and the ICTR in Arusha, Tanzania, there is no practical way for the population to keep abreast of what is occurring in the tribunals. Particularly in Rwanda, where most of the population does not even have electricity, up-to-date information on the court is almost nonexistent. The distance and lack of information also fails to aid in improving the local legal systems. This is an area where the hybrid tribunals have an advantage over the ad-hoc tribunals, as they tend to be held in the country in which the conflict took place. This brings the trials closer to the people.
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4Etelle R. Higonnet, Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 ARIZ. J. INT’L & COMP. L. 347, 423 (2006).
5Id. at 423–24.
6See The Secretary-General, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, ¶¶ 146–53, delivered to the Security Council and the General Assembly, U.N. Doc. S/1999/846, A/54/187 (Aug. 25, 1999), available at http://www.un.org/icty/rappannu-e/1999/AR99e.pdf.
7Press Briefing, Int’l Criminal Tribunal for Rwanda (Sep. 19, 2000), available at http://69.94.11.53/ENGLISH/pressbrief/2000/brief190900.htm.
8Higonnet, supra note 4, at 418–19, 423–24.
9Id. at 420.
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B. The International Criminal Court
The ICC was established in 2002 by the Rome Statute.10The ICC was
meant to be the final court of international criminal justice. Yet, the first trial before the ICC was just beginning in January 2009,11and hybrid
tribunals are still being established. The ICC is presently unprepared to carry out the world’s ever increasing demand for criminal justice.
One problem facing the ICC is its lack of jurisdiction. The ICC cannot prosecute individuals for crimes that were committed before the Rome Statute took place and only Rome Statute signatory nations are subject to its control.12While there are mechanisms for expanding this territorial jurisdiction, there will be major practical hurdles to doing so. The ICC will also be limited to trying only a small group of senior leaders in any given conflict. The logistics of moving witnesses, evidence, and the accused from their home country to The Hague will hinder the ICC’s ability to carry out extensive prosecutions.
The ICC is further limited by its binary approach to international criminal law. Prosecutions brought before the court will be either wholly related to international criminal law, or referred back to the local courts for domestic trials.13Most post-conflict national courts will be unable to handle such an immense task, and are often beset by corruption and politicization.14
There are also political restrictions plaguing the ICC. While the court was established without the United States’ ratification,15it has suffered
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10Rome Statute of the International Criminal Court art. 1, July 17, 1998, 2187 U.N.T.S. 90, 91 [hereinafter Rome Statute]. The Rome Statute was signed in 1998, but did not go into force until sixty countries had ratified it in 2002. Int’l Criminal Ct., About the Court, http://www.icc-cpi.int/Menus/ICC/About+the+Court/ (last visited Mar. 8, 2009).
11Marcus Bleasdale, DRC: ICC’s First Trial Focuses on Child Soldiers, HUM. RTS. WATCH, Jan. 23, 2009, http://www.hrw.org/en/news/2009/01/22/drc-icc-s-first-trial-focuses-child-soldiers.
12Rome Statute arts. 11(1), 12(1), supra note 10, at 99.
13Higonnet, supra note 4, at 349.
14Id.
15The United States signed the Rome Statute on December 31, 2000, but did not ratify it and instead “unsigned” the Statute in May 2002. Dominic McGoldrick, Political and Legal Responses to the ICC, in THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES 389 app. II at 414 (Dominic McGoldrick et al. eds., 2004).
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greatly for the lack of U.S. cooperation. In fact, one way in which the United States is attempting to prevent the emergence of a powerful ICC is by promoting the establishment of hybrid tribunals to counter the influence of the ICC.16
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