DRAFT AGREEMENT
CONCERNING THE PROSECUTION UNDER CAMBODIAN LAW OF
CRIMES COMMITTED DURING THE PERIOD OF DEMOCRATIC
WHEREAS the General Assembly of the United Nations, in
its resolution 57/228 of
WHEREAS in the same resolution the
General Assembly recognized the legitimate concern of the Government and the
people of Cambodia in the pursuit of justice and national reconciliation,
stability, peace and security;
WHEREAS the Cambodian authorities have requested assistance
from the United Nations in bringing to trial senior leaders of Democratic
Kampuchea and those who were most responsible for the
crimes and serious violations of Cambodian penal law, international
humanitarian law and custom, and international conventions recognized by
WHEREAS prior to the negotiation of
the present Agreement substantial progress had been made by the
Secretary-General of the United Nations (hereinafter, “the Secretary-General”)
and the Royal Government of Cambodia towards the establishment, with
international assistance, of Extraordinary Chambers within the existing court
structure of Cambodia for the prosecution of crimes committed during the period
of Democratic Kampuchea;
WHEREAS by its resolution 57/228,
the General Assembly welcomed the promulgation 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 Democratic Kampuchea and requested the
Secretary-General to resume negotiations, without delay, to conclude an
agreement with the Government, based on previous negotiations on the
establishment of the Extraordinary Chambers consistent with the provisions of
the said resolution, so that the Extraordinary Chambers may begin to function
promptly;
WHEREAS the Secretary-General and
the Royal Government of Cambodia have held negotiations on the establishment of
the Extraordinary Chambers;
NOW THEREFORE the United Nations and the Royal Government of
Cambodia have agreed as follows:
Article 1
The purpose of the present Agreement is to regulate the cooperation between the United Nations and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979. The Agreement provides, inter alia, the legal basis and the principles and modalities for such cooperation.
1. The present Agreement recognizes that the Extraordinary Chambers have subject matter jurisdiction consistent with that set forth in “the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea" (hereinafter: "the Law on the Establishment of the Extraordinary Chambers"), as adopted and amended by the Cambodian Legislature under the Constitution of Cambodia. The present Agreement further recognizes that the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement.
2. The present Agreement shall be implemented
in
3. In case amendments to the Law on the Establishment of the Extraordinary Chambers are deemed necessary, such amendments shall always be preceded by consultations between the parties.
Judges
1. Cambodian
judges, on the one hand, and judges appointed by the Supreme Council of the
Magistracy upon nomination by the Secretary-General of the United Nations
(hereinafter: "international judges"), on the other hand, shall serve
in each of the two Extraordinary Chambers.
2. The composition of the
Chambers shall be as follows:
a. The Trial Chamber: three
Cambodian judges and two international judges;
b. The
Supreme Court Chamber, which shall serve as both appellate chamber and final
instance: four Cambodian judges and three international judges.
3. The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.
4. In the overall composition of the Chambers due account should be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.
5. The Secretary-General of the United Nations undertakes to forward a list of not less than seven nominees for international judges from which the Supreme Council of the Magistracy shall appoint five to serve as judges in the two Chambers. Appointment of international judges by the Supreme Council of the Magistracy shall be made only from the list submitted by the Secretary-General.
6. In the event of a vacancy of an international judge, the Supreme Council of the Magistracy shall appoint another international judge from the same list.
7. The judges shall be appointed for the duration of the proceedings.
8. In addition to the international judges sitting in the Chambers and present at every stage of the proceedings, the President of a Chamber may, on a case-by-case basis, designate from the list of nominees submitted by the Secretary-General, one or more alternate judges to be present at each stage of the proceedings, and to replace an international judge if that judge is unable to continue sitting.
Article 4
Decision-making
1. The judges shall attempt
to achieve unanimity in their decisions.
If this is not possible, the following shall apply:
a. A decision by the Trial Chamber shall require the affirmative vote of at least four judges;
b. A decision by the Supreme Court Chamber shall require the affirmative vote of at least five judges.
2. When there is no unanimity, the decision of the Chamber shall contain the views of the majority and the minority.
Article 5
Investigating judges
1. There shall be one Cambodian
and one international investigating judge serving as co-investigating
judges. They shall be responsible for
the conduct of investigations.
2. The co-investigating judges
shall be persons of high moral character, impartiality and integrity who
possess the qualifications required in their respective countries for
appointment to such a judicial office.
3. The co-investigating judges
shall be independent in the performance of their functions and shall not accept
or seek instructions from any Government or any other source. It is understood, however, that the scope of
the investigation is limited to senior leaders of Democratic Kampuchea and
those who were most responsible for the crimes and serious violations of
Cambodian penal law, international humanitarian law and custom, and
international conventions recognized by Cambodia, that were committed during
the period from 17 April 1975 to 6 January 1979.
4. The co-investigating judges
shall cooperate with a view to arriving at a common approach to the
investigation. In case the
co-investigating judges are unable to agree whether to proceed with an
investigation, the investigation shall proceed unless the judges or one of them
requests within thirty days that the difference shall be settled in accordance
with Article 7.
5. In addition to the list of
nominees provided for in Article 3, paragraph 5, the Secretary-General shall
submit a list of two nominees from which the Supreme Council of the Magistracy
shall appoint one to serve as an international co-investigating judge, and one
as a reserve international co-investigating judge.
6.
In
case there is a vacancy or a need to fill the post of the international
co-investigating judge, the person appointed to fill this post must be the
reserve international co-investigating judge.
7. The co-investigating judges
shall be appointed for the duration of the proceedings.
Article 6
Prosecutors
1. There shall be one Cambodian prosecutor
and one international prosecutor competent to appear in both Chambers, serving
as co-prosecutors. They shall be
responsible for the conduct of the prosecutions.
2. The co-prosecutors shall be of high
moral character, and possess a high level of professional competence and
extensive experience in the conduct of investigations and prosecutions of
criminal cases.
3. The co-prosecutors shall be independent in the performance
of their functions and shall not accept or seek instructions from any
Government or any other source. It is understood, however, that the scope of the prosecution is limited
to senior leaders of Democratic Kampuchea and those who were most responsible
for the crimes and serious violations of Cambodian penal law, international
humanitarian law and custom, and international conventions recognized by Cambodia,
that were committed during the period from 17 April 1975 to 6 January 1979.
4. The co-prosecutors shall cooperate with
a view to arriving at a common approach to the prosecution. In case the prosecutors are unable to agree
whether to proceed with a prosecution, the prosecution shall proceed unless the
prosecutors or one of them requests within thirty days that the difference
shall be settled in accordance with Article 7.
5. The Secretary-General undertakes to forward a list of two nominees from which the Supreme Council of the Magistracy shall select one international co-prosecutor and one reserve international co-prosecutor.
6. In case there is a vacancy or a need to
fill the post of the international co-prosecutor, the person appointed to fill this
post must be the reserve international co-prosecutor.
7. The co-prosecutors shall be appointed for the duration of the proceedings.
8. Each co-prosecutor shall have one or more deputy prosecutors to assist him or her with prosecutions before the Chambers. Deputy international prosecutors shall be appointed by the international co-prosecutor from a list provided by the Secretary-General.
1. In case the
co-investigating judges or the co-prosecutors have made a request in accordance
with Article 5, paragraph 4, or Article 6, paragraph 4, as the case may be,
they shall submit written statements of facts and the reasons for their
different positions to the Director of the Office of Administration.
2. The
difference shall be settled forthwith by a Pre-Trial Chamber of five judges,
three appointed by the Supreme Council of the Magistracy, with one as
President, and two appointed by the Supreme Council of the Magistracy upon
nomination by the Secretary-General. Article 3, paragraph 3, shall apply to the
judges.
3. Upon receipt of the
statements referred to in paragraph 1, the Director of the Office of
Administration shall immediately convene the Pre-Trial Chamber and communicate
the statements to its members.
4. A decision of the Pre-Trial Chamber, against which there is no appeal, requires the affirmative vote of at least four judges. The decision shall be communicated to the Director of the Office of Administration, who shall publish it and communicate it to the co-investigating judges or the co-prosecutors. They shall immediately proceed in accordance with the decision of the Chamber. If there is no majority, as required for a decision, the investigation or prosecution shall proceed.
Office of Administration
1. There shall be an Office of Administration to service the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges and the Prosecutors’ Office.
2.
There shall be a Cambodian Director of this Office, who shall be
appointed by the Royal Government of Cambodia.
The Director shall be responsible for the overall management of the
Office of Administration, except in matters that are subject to United Nations
rules and procedures.
3. There shall be an international Deputy Director of the Office of Administration, who shall be appointed by the Secretary-General. The Deputy Director shall be responsible for the recruitment of all international staff and all administration of the international components of the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges, the Prosecutors’ Office and the Office of Administration. The United Nations and the Royal Government of Cambodia agree that, when an international Deputy Director has been appointed by the Secretary-General, the assignment of that person to that position by the Royal Government of Cambodia shall take place forthwith.
4. The Director and the Deputy Director
shall cooperate in order to ensure an effective and efficient functioning of
the administration.
Article 9
Crimes falling within the jurisdiction of the Extraordinary Chambers
The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.
Penalties
The maximum penalty for conviction for crimes falling within the jurisdiction of the Extraordinary Chambers shall be life imprisonment.
Article 11
Amnesty
2. This provision is based upon a declaration by the Royal Government of Cambodia that until now, with regard to matters covered in the law, there has been only one case, dated 14 September 1996, when a pardon was granted to only one person with regard to a 1979 conviction on the charge of genocide. The United Nations and the Royal Government of Cambodia agree that the scope of this pardon is a matter to be decided by the Extraordinary Chambers.
Article 12
Procedure
1. The procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.
2. The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. In the interest of securing a fair and public hearing and credibility of the procedure, it is understood that representatives of Member States of the United Nations, of the Secretary-General, of the media and of national and international non-governmental organizations will at all times have access to the proceedings before the Extraordinary Chambers. Any exclusion from such proceedings in accordance with the provisions of Article 14 of the Covenant shall only be to the extent strictly necessary in the opinion of the Chamber concerned and where publicity would prejudice the interests of justice.
Article 13
Rights of the accused
1. The rights of the accused enshrined
in Articles 14 and 15 of the 1966 International Covenant on Civil and Political
Rights shall be respected throughout the trial process. Such rights shall, in particular, include the
right: to a fair and public hearing; to be presumed innocent until proved
guilty; to engage a counsel of his or her choice; to have adequate time and
facilities for the preparation of his or her defence; to have counsel provided
if he or she does not have sufficient means to pay for it; and to examine or
have examined the witnesses against him or her.
2. The United
Nations and the Royal Government of Cambodia agree that the provisions on the
right to defence counsel in the Law on the Establishment of Extraordinary
Chambers mean that the accused has the right to engage counsel of his or her
own choosing as guaranteed by the International Covenant on Civil and Political
Rights.
Article 14
Premises
The Royal Government of Cambodia shall
provide at its expense the premises for the co-investigating judges, the
Prosecutors’ Office, the Extraordinary Chambers, the Pre-Trial Chamber and the
Office of Administration. It shall also
provide for such utilities, facilities and other services necessary for their
operation that may be mutually agreed upon by separate agreement between the
United Nations and the Government.
Article 15
Cambodian personnel
Salaries and emoluments of Cambodian judges
and other Cambodian personnel shall be defrayed by the Royal Government of
Cambodia.
Article 16
International personnel
Salaries and emoluments of international
judges, the international co-investigating judge, the international
co-prosecutor and other personnel recruited by the United Nations shall be
defrayed by the United Nations.
Article 17
Financial and other assistance of the
United Nations
The United Nations shall be responsible for
the following:
a.
remuneration of the international judges, the
international co-investigating judge, the international co-prosecutor, the
Deputy Director of the Office of Administration and other international
personnel;
b.
costs for utilities and services as agreed
separately between the United Nations and the Royal Government of Cambodia;
c.
remuneration of defence counsel;
d.
witnesses’ travel from within
e.
safety and security arrangements as agreed separately between the United
Nations and the Government;
f.
such other limited assistance as may be
necessary to ensure the smooth functioning of the investigation, the
prosecution and the Extraordinary Chambers.
Article 18
Inviolability of archives and documents
The archives of the
co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the
Pre-Trial Chamber and the Office of Administration, and in general all
documents and materials made available, belonging to or used by them, wherever
located in Cambodia and by whomsoever held, shall be inviolable for the
duration of the proceedings.
Article 19
Privileges and
immunities of international judges, the international co-investigating judge,
the international co-prosecutor and the Deputy Director of the
Office of
Administration
1. The international judges, the international co-investigating judge, the international co-prosecutor and the Deputy Director of the Office of Administration, together with their families forming part of their household, shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic agents in accordance with the 1961 Vienna Convention on Diplomatic Relations. They shall, in particular, enjoy:
a. personal inviolability, including immunity from arrest or
detention;
b. immunity from criminal, civil and administrative
jurisdiction in conformity with the Vienna Convention;
c. inviolability for all papers and documents;
d. exemption from immigration restrictions and alien
registration;
e. the same immunities and facilities in respect of their
personal baggage as are accorded to diplomatic agents.
2. The international
judges, the international co-investigating judge, the international
co-prosecutor and the Deputy Director of the Office of Administration shall
enjoy exemption from taxation in
Article 20
Privileges and immunities of Cambodian and international personnel
1. Cambodian judges, the Cambodian co-investigating judge, the Cambodian co-prosecutor and other Cambodian personnel shall be accorded immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity under the present Agreement. Such immunity shall continue to be accorded after termination of employment with the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration.
2. International personnel
shall be accorded:
a. immunity from legal process in respect of words spoken or
written and all acts performed by them in their official capacity under the
present Agreement. Such immunity shall
continue to be accorded after termination of employment with the
co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the
Pre-Trial Chamber and the Office of Administration;
b.
immunity from taxation on salaries, allowances and emoluments paid to
them by the United Nations;
c. immunity from immigration restrictions;
d. the
right to import free of duties and taxes, except for payment for services,
their furniture and effects at the time of first taking up their official
duties in Cambodia.
3. The United Nations and the Royal Government of Cambodia agree that the immunity granted by the Law on the Establishment of the Extraordinary Chambers in respect of words spoken or written and all acts performed by them in their official capacity under the present Agreement will apply also after the persons have left the service of the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration.
Article 21
Counsel
1. The counsel of a suspect or an accused who has been admitted as such by the Extraordinary Chambers shall not be subjected by the Royal Government of Cambodia to any measure which may affect the free and independent exercise of his or her functions under the present Agreement.
2. In particular, the counsel shall be accorded:
a. immunity from personal arrest or detention and from seizure
of personal baggage;
b.
inviolability of all documents relating to the exercise of his or her
functions as a counsel of a suspect or accused;
c.
immunity from criminal or civil jurisdiction in
respect of words spoken or written and acts performed by them in their official
capacity as counsel. Such immunity shall
continue to be accorded to them after termination of their functions as a
counsel of a suspect or accused.
3. Any counsel, whether of Cambodian or non-Cambodian nationality, engaged by or assigned to a suspect or an accused shall, in the defence of his or her client, act in accordance with the present Agreement, the Cambodian Law on the Statutes of the Bar and recognized standards and ethics of the legal profession.
Witnesses and experts
Witnesses and experts appearing on a summons or a request of the judges, the co-investigating judges, or the co-prosecutors shall not be prosecuted, detained or subjected to any other restriction on their liberty by the Cambodian authorities. They shall not be subjected by the authorities to any measure which may affect the free and independent exercise of their functions.
Article 23
Protection of victims
and witnesses
The co-investigating judges, the
co-prosecutors and the Extraordinary Chambers shall provide for the protection
of victims and witnesses. Such
protection measures shall include, but shall not be limited to, the conduct of in
camera proceedings and the protection of the identity of a victim or
witness.
Article 24
Security, safety and protection
of
persons referred to in the present Agreement
The Royal Government of Cambodia shall take
all effective and adequate actions which may be required to ensure the
security, safety and protection of persons referred to in the present
Agreement. The United Nations and the
Government agree that the Government is responsible for the security of all
accused, irrespective of whether they appear voluntarily before the Extraordinary
Chambers or whether they are under arrest.
Article 25
Obligation to assist the co-investigating
judges, the co-prosecutors and
the