International Criminal Law Services. and

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1 International Criminal Law Services and INTERNATIONAL CRIMINAL LAW TRAINING MATERIALS FOR THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

2 Copyright 2009 by International Criminal Law Services and the Open Society Justice Initiative All rights reserved. International Criminal Law Services Open Society Justice Initiative The materials included herein are proprietary to International Criminal Law Services and the Open Society Justice Initiative. If used for capacity-building and similar purposes, and if used as resource and for research, due and public acknowledgement must be given to International Criminal Law Services and the Open Society Justice Initiative. The commercial production or reproduction of these materials, including any translated version, is prohibited.

3 INTERNATIONAL CRIMINAL LAW SERVICES International Criminal Law Services ( is an independent, not-for-profit, non-governmental organisation. It provides legal and technical training and other services in order to ensure accountability for war crimes, crimes against humanity and genocide. Its clients include national, regional, international and internationalised courts, judges, prosecutors, defence counsel, court registries, and non-governmental organisations. The directors and advisers of ICLS have more than 60 years of experience in international criminal, humanitarian and human-rights law in international, internationalised and national jurisdictions. ICLS is based in The Hague, and is a partner organisation of the Open Society Justice Initiative. OPEN SOCIETY JUSTICE INITIATIVE The Open Society Justice Initiative ( an operational program of the Open Society Institute, pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies worldwide. The Justice Initiative combines litigation, legal advocacy, technical assistance, and the dissemination of knowledge to secure advances in the following priority areas: national criminal justice, international justice, freedom of information and expression, and equality and citizenship. Its offices are in Abuja, Budapest, and New York. i

4 FOREWORD AND ACKNOWLEDGMENTS These materials (dated ) are an update of the 2006 version of the International Criminal Law Training Materials for the Extraordinary Chambers in the Courts of Cambodia produced by International Criminal Law Services (ICLS) and the Open Society Justice Initiative (OSJI). The 2006 version was an update of the 2005 International Criminal Law Materials for the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea produced by ICLS. OSJI s funding support has made the production of this update and the two earlier versions possible. ICLS is grateful for the assistance of Kelly Askin, Tracey Gurd, Heather Ryan and Panhavuth Long at OSJI. This update, like the 2005 and 2006 versions of these materials, was researched and drafted by an ICLS expert consultant, Magda Karagiannakis. She is a barrister, and was a judges associate and international prosecutor at the UN International Criminal Tribunal for the former Yugoslavia. She has also provided training for ECCC legal practitioners. Gabriël Oosthuizen, the executive director of ICLS, assisted her with the finalisation and editing of the update. ICLS is grateful to the following ICLS volunteers and special assistants who provided research and project-development assistance: Monique Legerman, Yvonne McDermott, Robert Schaeffer and Brenda Valdez Martinez. ii

5 Additional Protocol I Additional Protocol II Agreement App. Ch. Cambodian Law ECCC ECCC Law Extraordinary Chambers Geneva Convention I Geneva Convention II Geneva Convention III Geneva Convention IV Genocide Convention Hague Convention ABBREVIATIONS AND GLOSSARY 1977 Protocol Additional to the 1949 Geneva Conventions, and relating to the Protection of Victims of International Armed Conflicts 1977 Protocol Additional to the 1949 Geneva Conventions, and relating to the Protection of Victims of Non-International Armed Conflicts 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 6 June 2003 Appeals Chamber Law on the Establishment of the Extraordinary Chambers with inclusion of amendments as promulgated on 27 October 2004 See Extraordinary Chambers See Cambodian Law Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. See also ECCC 1949 Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field 1949 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949 Geneva Convention relative to the Treatment of Prisoners of War 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War 1948 Convention on the Prevention and Punishment of the Crime of Genocide 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 Hague Convention Protocol 1954 Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1999 Hague Convention Protocol 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1907 Hague Regulations 1907 Regulations Concerning the Laws and Customs of War on Land annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land ICC ICC Elements of Crimes ICC Rules ICC Statute ICJ ICCPR International Criminal Court Elements of Crimes, adopted by ICC Assembly of States Parties, first session, New York, 3-10 September 2002, Official Records, ICC-ASP/1/3 ICC Rules of Procedure and Evidence 1998 Rome Statute of the International Criminal Court, adopted by signatory states at Rome Conference on the establishment of the ICC International Court of Justice 1966 International Covenant on Civil and Political Rights iii

6 ICTR ICTR Rules ICTR Statute ICTY ICTY Rules ICTY Statute International Criminal Tribunal for Rwanda ICTR Rules of Procedure and Evidence 1994 Statute of the ICTR, adopted and amended by the UN Security Council International Criminal Tribunal for the former Yugoslavia ICTY Rules of Procedure and Evidence 1993 Statute of the ICTR, adopted and amended by the UN Security Council Internal Rules Internal Rules of the Extraordinary Chambers, revision no 2, September 2008 IRs nullem crimen sine lege Nuremberg Charter Nuremberg Tribunal Pre-Trial Ch. Protection Practice Direction Rules SCSL Internal Rules; see Internal Rules principle of legality 1945 Charter of the International Military Tribunal for the Prosecution and Punishment of the German Major War Criminals International Military Tribunal for the Prosecution and Punishment of the German Major War Criminals, Nuremberg, Germany Pre-Trial Chamber T. Ch. Trial Chamber Task Force, or Task Force on the Extraordinary Chambers Tokyo Charter Tokyo Tribunal Torture Convention travaux préparatoires UN Victim Participation Practice Direction Whitaker Report Extraordinary Chambers, Practice Direction on Protective Measures, 03/2007/Rev.1, as amended on 29 April 2008 See Internal Rules Special Court for Sierra Leone Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceeding for the Trial of Senior Khmer Rouge Leaders, established by the Cambodian government 1946 Charter of the International Military Tribunal for the Far East International Military Tribunal for the Far East 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment preparatory work United Nations Extraordinary Chambers, Practice Direction on Victims Participation, 02/2007/Rev.1, as amended on 27 October 2008 Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub. 2/1985/6, 2 July iv

7 CONTENTS Part Page Note on International Criminal Law Services 1 i Note on Open Society Justice Initiative 1 i Foreword and Acknowledgements 1 ii Abbreviations and Glossary 1 iii Contents 1 v A. Introduction 2 1 B. Legal Basis: Three Main Sources 2 2 C. Jurisdiction, Organisation and Operation Jurisdiction and Dissolution of ECCC 4 2. Institutional Structure 4 3. Pre-Trial Chamber, Trial Chamber and Supreme Court Chamber 5 4. Judges and Presidents of Three Chambers 5 5. Judges of Three Chambers: Independence, Impartiality, Recusal and Disqualification 6 6. Judges of Three Chambers: Decision-making and Appeals 7 7. Co-Investigating Judges: Appointment, Independence, Impartiality, Recusal and Disqualification 8 8. Co-Investigating Judges: Functions, Powers, Procedures 8 9. Co-Prosecutors: Appointment and Independence Co-Prosecutors: Functions, Powers, Procedures Investigating Judges and Prosecutors: Division of Roles Pre-Trial Chamber: Settlement of Differences between Co-Investigating Judges and Co-Prosecutors, and Appeals against Decisions of Co-Investigating Judges Judicial Police, Investigators and Greffiers Defence Counsel Office of Administration Co-Operation of Cambodian State, and Privileges and Immunities International Judicial Co-Operation, and Financial Assistance Working Languages 19 D. Procedural Guarantees, Amnesties and Pardons, Penalties, and Procedure and Evidence Fair Trial and Due Process Guarantees: Rights of Suspects, Charged Persons and Accused Amnesties and Pardons Penalties and Statute of Limitations 25 v

8 4. Procedure and Evidence: General Elements 26 E. Witness Protection Applicable Law of ECCC ICC Statute and Rules ICTY and ICTR Statutes and Rules Potential Witness Protection Issues in Cambodian Context 46 F. Civil Parties Applicable Law of ECCC ICC 52 G. Jurisdiction of the ECCC, Approaches to Legal Interpretation, and Sources of International Criminal Law Jurisdiction of ECCC Approaches to Legal Interpretation, and Sources of International Criminal Law 53 H. Genocide Law of ECCC Genocide as Defined in 1948 Genocide Convention ICC Statute ICTR and ICTY Statutes and Jurisprudence Extracts from Relevant Jurisprudence Potential Issues in the Cambodian Context 122 I. Crimes Against Humanity Law of ECCC Nuremberg and Tokyo Charters ICC Statute ICTY Statute and Jurisprudence ICTR Statute and Jurisprudence Extracts from Relevant Jurisprudence Potential in the Cambodian Context 170 J. Grave Breaches of the 1949 Geneva Conventions Law of ECCC Text of Grave Breach Provisions in Geneva Conventions ICC Statute ICTY Statute and Jurisprudence Extracts from Relevant Jurisprudence Potential Issues in the Cambodian Context 228 K. Destruction of Cultural Property in Breach of the 1954 Hague Convention Law of ECCC History of Legal Protection of Cultural Property and Hague Conventions Hague Convention for the Protection of Cultural Property 230 vi

9 4. ICC Statute ICTY Statute and Jurisprudence Extracts from Relevant Jurisprudence 236 L. Individual Criminal Responsibility Direct Individual Criminal Responsibility at ECCC ICC Statute ICTY and ICTR Statutes and Jurisprudence Extracts from Relevant Jurisprudence 258 M. Superior or Command Responsibility Superior Responsibility at ECCC ICC Statute ICTY and ICTR Statutes and Jurisprudence Extracts from Relevant Jurisprudence 287 N. Defences Law of ECCC Defences at Nuremberg Tribunal and in Subsequent World War II Cases and as Considered by the International Law Commission Defences at ICC Defences at ICTY and ICTR 305 Annexes Agreement (between United Nations and Cambodian government) Cambodian Law (on establishment of Extraordinary Chambers) Internal Rules Practice Direction on Victim Participation Practice Direction on Protective Measures 414 vii