Introduction to the Khmer Rouge Tribunal
Janet
Lee and Karen Yookyung Choi
Edited
by Héleyn Uñac, Legal Training Coordinator
DC-Cam’s
2005 Legal Training Project focused on criminal defense before the upcoming
Khmer
Rouge Tribunal. This document is an excerpt from the
legal training course material.
I. CREATION OF THE KHMER ROUGE TRIBUNAL (KRT)
At least 1.5 million people,
approximately 20 percent of the Cambodian population, are believed to have died
during the Khmer Rouge regime. However, despite the scale and seriousness of
the crimes, no formal efforts to prosecute and punish the perpetrators of such
crimes were initiated after the fall of the regime. The only trials that took
place were those that the People’s Republic of
The United Nations (UN) and the Royal
Government of Cambodia (RGC) have for several years pursued negotiations over
possible methods for bringing Khmer Rouge leaders to trial for atrocities of
the past. The disintegration of Pol Pot’s insurgency and his detention by Ta
Mok in mid-1997 added further impetus and urgency to deal with this issue.
In June 1997, then Co-Prime Ministers
Prince Norodom Ranariddh and Hun Sen formally requested the assistance of the
UN in bringing to justice “those persons responsible for the genocide and
crimes against humanity during the Khmer Rouge regime.” Subsequently, the
UN appointed a Group of Experts, who considered various options on how to
proceed, including holding trials before the existing domestic courts or
setting up a mixed tribunal, like the ones later implemented in
Despite those divergences between the
UN and the RGC, the Cambodian National Assembly passed a “Law on the
Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea”
(ECDK Law) in January 2001. This law, which was promulgated on 10 August 2001,
provides that “Extraordinary Chambers” (commonly known as the Khmer
Rouge Tribunal) will be set within the national court structure and will be
composed of a majority of Cambodian judges. Following the promulgation of the
above-mentioned ECDK Law, the UN and the RGC negotiated an agreement with the
purpose of regulating their cooperation in bringing to trial individuals before
the “Extraordinary Chambers.” The UN insisted that international
standards of fair trial be incorporated into the Agreement. The draft UN-RCG
Agreement was signed by both parties in June 2003.
The Cambodian
legislature made several amendments to the 2001 ECDK Law, notably to put it in
conformity with the above-mentioned UN-RGC draft Agreement. In October 2004,
the Cambodian National Assembly adopted both the UN-RGC Agreement and the
amended ECDK Law, which were promulgated on 19 and 27 October 2004,
respectively. The Khmer Rouge Tribunal is, thereby, a product of these two
legal instruments, namely the Amended ECDK Law and the UN-RGC Agreement.
The UN and RGC also agreed that the
estimated cost of proceedings before the KRT will amount to 56 million US
dollars over a three-year period. At the end of April 2005 the UN Secretary
General announced that sufficient pledges and contributions were in place to
fund the staffing of the two Extraordinary Chambers and their operations for a
sustained period of time.
II. JURISDICTION OF THE KHMER ROUGE TRIBUNAL
A. Territorial, temporal and personal jurisdictions
1.
Territorial jurisdiction
The KRT will sit in
2.
Temporal jurisdiction
The KRT has a limited temporal
jurisdiction. It can only try crimes that occurred between 17 April 1975 (the
day that the Khmer Rouge arrived in
3.
Personal jurisdiction
The KRT’s mandate is to prosecute and
try senior leaders of Democratic Kampuchea and those who were most
responsible for the crimes listed in the ECDK Law as mentioned below.
Article 29 of the ECDK Law further
specifies who could be held criminally responsible:
“Any suspect
who planned, instigated, ordered, aided and abetted or committed the crimes
referred to in new articles 3, 4, 5, 6, 7 and 8 of this law ….”
Article 29 of the ECDK Law further
sets forth the possibility of holding individuals criminally responsible for
the acts committed by their subordinates by application of the command
responsibility doctrine.
It provides: “…The fact that any of
the acts referred to in new Articles 3, 4, 5, 6, 7 and 8 of this law were
committed by a subordinate does not relieve the superior of personal criminal
responsibility if the superior had effective command and control or authority
and control over the subordinate, and the superior knew or had reason to know
that the subordinate was about to commit such acts or had done so and the
superior failed to take the necessary and reasonable measures to prevent such
acts or to punish the perpetrators.”
B. Subject matter jurisdiction
Perpetrators of human rights abuses
will be tried under two sets of criminal laws at the KRT,
i.e., international law and domestic law. The international crimes include
genocide, crimes against humanity, grave breaches of the Geneva Convention,
destruction of cultural property, and crimes against internationally protected
persons. The domestic crimes are those covered by the 1956 Penal Code of
Cambodia, namely homicide, torture and religious persecution.
1.
International crimes
a. Genocide
Definition:
Pursuant to Article 9 of the UN-RGC
Agreement (which adopts the definition of the 1948 Genocide Convention): “the
acts of genocide mean any acts committed with the intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to
prevent births within the group;
(e)
Forcibly transferring children of the group to another group.”
Article 4 of the ECDK Law adopts the
same definition, but also enumerates the following punishable acts: attempt to
commit acts of genocide, conspiracy to commit acts of genocide, and
participation in acts of genocide.
Key
elements:
i. Acts committed against a national,
ethnical, racial or religious group. Note that it does not cover political or
socio-economic groups.
ii.
With an intent to destroy, in whole or in part, one of these groups as such.
Remarks:
i.
ii. The
crime of genocide is considered to be jus cogens and customary
international law.
b. Crimes against humanity (CAH)
Definition:
According to Article 9 of the UN-RGC
Agreement, crimes against humanity as defined in the 1998 Rome Statute of the
International Criminal Court (ICC Statute) fall within the jurisdiction of the
KRT.
Article 7 of the ICC Statute defines
CAH as follows: “Crimes against humanity mean any of the following acts when
committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer
of population;
(e) Imprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of
comparable gravity;
(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious,
gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or
to mental or physical health.”
The ECDK Law’s definition of CAH
differs from the one provided in the UN-RCG Agreement. Article 5 of the ECDK
Law provides as follows:
“Crimes against humanity (…), are any
acts committed as part of a widespread or systematic attack directed against
any civilian population, on national, political, ethnical, racial or religious
grounds, such as:
- murder;
- extermination;
- enslavement;
- deportation;
- imprisonment;
- torture;
- rape
- persecutions on political, racial, and religious
grounds;
- other inhuman acts.”
Key elements:
i. A widespread or systematic attack
against any civilian population.
ii. Knowledge of the attack
Actual or constructive knowledge,
meaning that the defendant must know that his or her act is part of a
widespread or systematic attack on a civilian population, is necessary to
satisfy the mens rea element. The phrase, with knowledge of attack,
is absent in the ECDK Law. The ICTR, whose Statute provides for the same
definition as the ECDK Law, nevertheless ruled that such knowledge is an
essential element of the CAH.
iii. Nexus to armed conflict
The Charter of the Nuremberg Tribunal
required that the crimes be linked to armed conflict to counter any argument of
nullum crimen sine lege. The link to armed conflict disappeared from
customary international law for a long period of time. But it was revived in
the ICTY Statute. It remains uncertain whether the nexus to armed conflict was
part of the definition of crimes against humanity at the time the Khmer Rouge
took power. A successful defense will need to focus on the nexus to armed
conflict, while the prosecutor will try to show that a link to armed conflict
is no longer required for a charge of crimes against humanity.
iv. State action/direction
Authorities on international law are
divided as to whether governmental direction is a necessary element.
v. Discriminatory intent
Under the UN-RGC Agreement’s, there is
no requirement that the enumerated acts, other than persecution, be committed
with discriminatory intent so long as the acts are committed against civilians
(see Prosecutor v. Akayesu, ICTR Appeals Chamber Judgment, para. 447-469). By
contrast, the ECDK Law’s definition requires a discriminatory intent on
political, ethnical, racial or religious grounds.
Remarks:
i. Crimes against humanity originate
in customary international law. It was the Nuremberg Charter that first
crystallized the use of the term “crimes against humanity.” The definition
of crimes against humanity has evolved over time and differed depending on the
tribunal. Different definitions of CAH were used in the Charter of the
Nuremberg Tribunal, the ICTY Statute, the ICTR Statute and the ICC Statute.
Given the legal principle nullum crimen sine lege, it will be necessary
for the KRT to determine the extent to which CAH were prohibited by customary
international law at the time the Khmer Rouge were in power.
ii.
c. Grave Breaches of the Geneva
Convention
Definition:
Article 9 of the UN-RGC Agreement
refers to Grave Breaches of the Geneva Conventions of 12 August 1949, which are
any of the following acts committed against persons or property protected under
the provisions of the relevant Geneva Conventions.
(a) Willful killings;
(b) Torture
or inhuman treatment, including biological experiments;
(c) Willfully causing great suffering,
or serious injury to body or health;
(d) Extensive destruction and appropriation of property,
not justified by military necessity and carried out unlawfully and wantonly;
(e) Compelling a prisoner of war or other protected person to
serve in the forces of a hostile power;
(f) Willfully depriving a prisoner of war or other protected
person of the rights of fair and regular trial;
(g) Unlawful deportation or transfer
or unlawful confinement;
(h) Taking of hostages.
Article 6 of the ECDK Law adopts the
same definition.
Key
elements:
i. An armed conflict. The prosecutor
must demonstrate that a sustained armed conflict was taking place during the
period at issue.
ii.
State nexus. It requires the perpetrator to be an official acting for the
country.
Remarks:
i.
ii. Common Article 3 of the Geneva
Conventions of 1949 is the only international humanitarian law provision
governing internal conflicts in effect during the Khmer Rouge years.
Can decisions of prior international criminal tribunals
be used
before the KRT?
Ordinarily, prior case laws from other
international courts do not become binding laws in the context of international
or mixed criminal tribunals. However, in the past, defense counsel and
prosecutors have frequently made reference to prior decisions with the hope
that the courts would follow those interpretations of the applicable law.
Although not all prior case laws will be adopted in the decision, judges of
international or mixed criminal courts are mindful of precedents and often cite
principles established from prior decisions.
For
example, in Prosecutor v. Dragan Nikolic, Judgment of 5 May 2003, page
9, the Supreme Court of Kosovo made reference to some ICTY and ICTR decisions
in its decision.
The
presiding judge held that;
“…Appropriate guidance in this regard
can be found in the case-law of The Prosecutor v. Jean-Paul Akayesu before the
International Criminal Tribunal of
d. Destruction of cultural property
Definition:
Article 7 of the ECDK Law provides as
follows: “[t]he Extraordinary Chambers shall have the power to bring to
trial all Suspects most responsible for the destruction of cultural property
during armed conflict pursuant to the 1954 Hague Convention for Protection of
Cultural Property in the Event of Armed Conflict…”
Key
element:
The
destruction of artistic, literary, religious, architectural and other cultural
property during an armed conflict.
Remarks:
i.
ii. Note that Article 44 of the UNTAC
refers to the Law on the 1996 Protection of Cultural Heritage.
e. Crimes against Internationally
Protected Persons
Definition:
This crime is covered by Article 8 of
the ECDK Law, which sets forth that the KRT will try “all suspects most
responsible for crimes against internationally protected persons pursuant to
the
Remarks:
i. The
ii. In April 1975, the Khmer Rouge
regime detained personnel in the French embassy and then removed and murdered
Cambodian spouses of foreign diplomatic personnel.
2.
Domestic crimes
a. 1956 Code Penal of
The principle of nullum crimen sine
lege requires that a person be punished only for crimes that are recognized
as crimes at the time they are committed. Therefore, if
Although Cambodian courts have not
applied the 1956 law for a generation, it constitutes the primary source of law
for the prosecution of domestic crimes before the KRT. The ECDK Law refers to
its provisions, in Article 3, as follows:
“Extraordinary Chamber shall have
the power to bring to trial all suspects who committed crimes set forth in the
1956 Cambodian penal code and which were committed during period from 17 April
1975 to 6 January 1979:
-
Homicide (articles 501, 503, 504, 505, 506, 507 and 508)
- Torture
(article 500)
-
Religious persecution (articles 209 and 201).”
The 1956 Penal Code of Cambodia
classifies offenses by severity into crimes (akin to felonies); délits
(misdemeanors); and contraventions (police infractions or petty
offenses). Crimes and délits are divided into first degree,
second degree, and third degree depending on the degree of severity of the
sentence; third degree is the most serious.
Moreover, the 1956 Penal Code provides
for clear statutes of limitations: ten years for crimes, five years for délits,
and one year for contraventions. The statute of limitations runs from
the date of the commission of the criminal act. The statutes of limitations of
the domestic crimes enumerated in the ECDK Law are extended for an additional
30 years (Article 3 of the ECDK law).
b. Homicide - Articles
501, 503, 504, 506, 507 and 508 of the 1956 Penal Code.
Homicide can be voluntary or
involuntary. This depends on whether or not the perpetrator of the crime
intended to cause death. Homicide requires the act of killing, and a culpable
mental state – intent to kill, reckless disregard for life or negligence. The
different levels of mental state correspond to different “degrees” of homicide.
Involuntary homicide includes
manslaughter through negligence and other types of recklessness, and is
punishable in varying degrees of severity.
Homicide committed with the intent to cause
death is murder, a second-degree felony. When the murder has been premeditated,
the crime is qualified as assassination, a third degree felony.
c.
Torture - Article 500 of the 1956 Penal Code.
Art. 500: “Any individual who
commits acts of torture against a third person, either in order to extract from
the person, under pain, some useful information on the commission of a crime or
misdemeanor, or for reprisal or barbaric motives, shall be punished with a
third degree criminal sentence felony.” (Unofficial translation)
d. Religious Persecution -
Articles 209 and 210 of the 1956 Penal Code.
Art. 209: “An attack on the life of
a religious person practicing a religion recognized by the Cambodian government
while exercising his profession or in the course of the exercise of his
profession shall be punished by a third degree criminal sentence.” (Unofficial
translation)
Art. 210: “An attack on a religious
person practicing a religion recognized by the Cambodian government while
exercising his profession or in the course of the exercise of his profession
shall be punished by a second degree criminal sentence.” (Unofficial
translation)
III. PROCEDURAL RULES BEFORE THE KHMER ROUGE TRIBUNAL
A. Procedural Rules in General
Rule of law implies
that government authority may only be exercised in accordance with established
procedural laws. Criminal procedural rules aim at protecting the interests of
the suspects, as well as those of society and the victims. In most
jurisdictions, a criminal action will be invalid if the action was not
initiated in accordance with the criminal procedural rules. Generally,
procedural rules are encoded in criminal procedure laws.
For international criminal courts,
sets of rules of procedure and evidence have been specifically drafted.
ICC: Rules of Procedure and Evidence.
ICTY: Rules of Procedure and Evidence.
ICTR: Rules of Procedure and Evidence.
For mixed tribunals, some courts apply domestic procedural law,
while others created new procedural rules to be followed during war crime
proceedings.
Kosovo: In April 2004, the Provisional Criminal Procedure Code of
Kosovo replaced the Socialist Federal Republic of Yugoslavia Criminal Procedure
Code formerly applicable.
As of June 2005, there
are two criminal procedural laws operating in Cambodia – the 1993 Cambodian Law
on Criminal Procedure and the United Nations Transitional Authority in
Cambodia’s decision of 10 September 1992 on Provisions Relating to the
Judiciary and Criminal Law and Procedures Applicable in Cambodia during the
Transitional Period (UNTAC Law).
UN-RGC
Agreement
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 Article 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 Security-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
and where publicity would prejudice the interest of justice.
1. Domestic Procedural Law
Regarding the KRT, Article 12 of the
UN-RGC Agreement provides that “the procedure shall be in accordance with
Cambodian Law” and Article 33 of the ECDK Law provides that trials are “conducted
in accordance with existing procedure in force.”
Hence, in the absence of any Rules of
Procedure and Evidence specifically drafted for the KRT, the Extraordinary
Chambers shall ensure that trials are conducted in accordance with the 1992
UNTAC Law and/or 1993 Law on Criminal Procedure.
2.
International Procedural Law
The UN-RGC Agreement and the ECDK Law
make it clear that rights provided and guaranteed by Articles 14 and 15 of the
International Covenant on Civil and Political Rights (ICCPR) should apply
before the KRT. Those ICCPR provisions should supersede any other criminal procedural
rules. In addition, considering that Cambodia has ratified the ICCPR (on 26 May
1992), it could be argued that the KRT judges should also respect all rights
provided in this Covenant, such as, for instance, the right to liberty and
security (Article 9 of the ICCPR).
For international procedural rules
other than the ones provided in the ICCPR, the UN-RGC Agreement, Article 12,
and the ECDK Law, Article 33, provide that: “[w]here 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.”
Therefore, it is left to the KRT to
decide when to seek guidance in international law.