Paññ! s! stra Univers ity of Cambod ia The Relation of the ECCC with the Internati onal Laws Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA " RESEARCH PAPER The Relation of ECCC with the International Laws Written By: LONG KimkhornMaster of Arts in International Relations and Diplomacy Paññ!s!stra University of Cambodia Public International Laws Instructed By: Sang-Bonn SOTH, LLM. and Professor of PUC Faculty of Law and Public Affairs (LPA) Phnom Penh, February 26 th , 2014
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8/12/2019 The Relation of ECCC With the International Laws
Chamber in the Court of Cambodia) and the UNAKRT (United Nations Assistance to the
Khmer Rouge Trail) which database a lot of legal documents related to the overall work of
ECCC that enable me to have a handful of references for my research paper.
III. Introduction
a. The Definition of ECCC
ECCC stands for Extraordinary Chamber in the Court of Cambodia. It is called by another two
alias – Hybrid Court or Khmer Rouge Court – rather than its original name.
b. The Mission of ECCC
Bringing these men to justice is a matter not only of moral obligation but also of profound
political and social importance to the Cambodian people. For accountability first and foremost
is a statement to the millions of Cambodian victims and their relatives and friends that theircries have at last been heard, providing the survivors with a sense of justice and some closure
on the past. Justice4 is also a critical element for repairing the damage done to that society by
the massive human rights abuses and for promoting internal peace and national reconciliation.
By having those who committed the abuses identified and punished, Cambodians can better
understand their own past, finally place this most tragic period and those responsible for it
behind them, and work together to build a peaceful and better future. And accountability can
play an important preventive role in Cambodia - demonstrating to those contemplating offences
that punishment is at least possible, and promoting an awareness among the people about the
meaning of justice and the rule of law (UN: 1999, 6).
4GENERAL ASSEMBLY SECURITY COUNCIL, Report of the Group of Experts for
Cambodia established pursuant to General Assembly resolution 52/135 /, (UN, 1999: 6)
c. The Purposes of ECCC
According to the UN Adopted Resolution
5
57/228 on 18 December 2002 in the Article 1 of theAgreement between the United Nations and the Royal Government of Cambodia stated that 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 17April
1975 to 6 January 1979. The Agreement provides, inter alia, the legal basis and the principles
and modalities for such cooperation (UN General Assembly: 2002, 2).
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Paññ! s! stra University of Cambodia The Relation of the ECCC with the International Laws
Professor: Sang-Bonn SOTH, LLM. Student: KimKhorn LONG, MA'
Figure 1: Component7 of the ECCC
7Chan Sok, Constitutional Council/ Case No. 038/001/2001/ Decision No. 040/002/2001,
(Municipality of Phnom Penh, 2001: 3)
IV. Literature Review
a. Tipping Point of ECCC Creation
Co-Prime Minister wrote a letter 8 to the UN stated, “Cambodia does not have the resources or
expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for
the assistance of the United Nations. We are aware of similar efforts to respond to the genocide
and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar
assistance be given to Cambodia” (UNGA: 1997, 1).
8 Norodom Ranariddh., Hun Sen., Letter dated 21 June 1997 from the First and Second Prime
Ministers of Cambodia addressed to the Secretary-General, GENERAL ASSEMBLY Fifty-first
session Agenda item 110 HUMAN RIGHTS QUESTIONS/ SECURITY COUNCIL/ Fifty-
second year/ A/51/930/ S/1997/488, (General Assembly, 1997: 1)
b. The Establishment of ECCC
In the process of the establishment of the ECCC, there were five proposals had been made to
United Nations Security Council, stated following:
! A Tribunal established under Cambodian law9
The first option considered by the Group is the conduct of criminal trials under Cambodian law
in a domestic court, under the sponsorship of the Cambodian Government. As a party to the
Genocide Convention, Cambodia is obligated to punish genocide that took place on itsterritory; in the 1991 Paris Accords, it undertook "to take effective measures to ensure that the
policies and practices of the past shall never be allowed to return", to "ensure respect for and
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observance of human rights and fundamental freedoms in Cambodia", and "to adhere to
relevant international human rights instruments" (UNSC: 1999, 49).
9GENERAL ASSEMBLY SECURITY COUNCIL, Report of the Group of Experts for
Cambodia established pursuant to General Assembly resolution 52/135/, (UN, 1999: 49)
! A Tribunal established by the United Nations10
The second option the Group considered is the establishment of an ad hoc international tribunal by the United Nations. After careful evaluation of all the alternatives and as explained in detail
in section 7 below, it is this option that the Group strongly recommends (UNSC: 1999, 55).
10GENERAL ASSEMBLY SECURITY COUNCIL, Report of the Group of Experts for
Cambodia established pursuant to General Assembly resolution 52/135/, (UN, 1999: 55)
! A Cambodian tribunal under United Nations administration11
The third proposal the Group considered is a hybrid of the previous two models: a tribunal
established under Cambodian law, but subject to the control and operation of the United
Nations. The establishment of such a tribunal would be done through two simultaneous legal
undertakings. First, the United Nations, through the Secretary-General, would enter into an
international agreement with the Cambodian Government establishing the legal status of the
tribunal, the obligations of the United Nations and the obligations of Cambodia. Second, the
Cambodian Government would pass a law that formally establishes the tribunal according to
the terms of its agreement with the United Nations. A statute of the tribunal would be annexed
to the Cambodian law and the agreement as well. The jurisdiction of such a court could
comprise only international crimes, only Cambodian crimes, or extend to both (UNSC: 1999,
69).
11GENERAL ASSEMBLY SECURITY COUNCIL, Report of the Group of Experts for
Cambodia established pursuant to General Assembly resolution 52/135/, (UN, 1999: 69)
! An international tribunal established by multilateral treaty12
This option would entail the creation of a court along the model of the International Military
Tribunal at Nuremberg through a treaty among interested States.83 In the case of Cambodia,
this might be a combination of States in the region whose cooperation would be necessary to
the effective functioning of a court and other interested States that might wish to contribute
financial resources and personnel. It would avoid the creation of a new United Nations court.
The Group declines to recommend this option because we are quite skeptical of the possibility
of agreement among many States on the form of such a court. Protracted negotiations might
well lead nowhere. This reasoning formed the basis for the Secretary-General's
recommendations to the Security Council in 1993 and 1994 that the International Tribunal for
8/12/2019 The Relation of ECCC With the International Laws
sources. Fourth, I put all important information into literature matrix. Fifth, I start writing the
paper using qualitative method with the footnotes and references.
VI. Scope of Research
Due to the school requirement and time constraint, the paper only touch upon few important
point of ECCC including the Law of ECCC (Establishment, Judge Appointment, Court
Jurisdiction, Judgment, Decision Making, Power of ECCC, Scope of ECCC, Political Influence
on Court, and few more), Achievement of Case 001, Current Status of Case 002, 003, 004.
VII. Facts and Findings
a. The Power of ECCC
According to the Article 4 of the agreement on the decision-making process18. 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.
Trial Chamber composes of three Cambodian judges and two international judges; (b) A
decision by the Supreme Court Chamber shall require the affirmative vote of at least five
judges. The Court Chamber composes of four Cambodian judges and international judges.
When there is no unanimity, the decision of the Chamber shall contain the views of the majority
and the minority (UN General Assembly: 2002, 4). The Court has only power to trail the crimes
committed during the period from 17April 1975 to 6 January 1979.
18
General Assembly, Resolution adopted on the report of the Third Committee (A/57/806)57/228. Khmer Rouge trials/ Recalling its resolution 57/228, (UN, 2003: 2-12)
The ECCC is such a controversial case against Mr. Ieng Sary. According to the article 1: a
pardon19
to Mr Ieng Sary, former Deputy Prime Minister in charge of Foreign Affairs in the
Government of Democratic Kampuchea, for the sentence of death and confiscation of all his
property imposed by order of the People's Revolutionary Tribunal of Phnom Penh, dated 19
August 1979; and an amnesty for prosecution under the Law to Outlaw the Democratic
Kampuchea Group, promulgated by Reach Kram No. 1, NS 94, dated 14 July 1994 (Sihanouk:
(16) persecutions on political, racial, and religious grounds; (17) other inhumane acts (ECCC:2004, 2).
According to the Article 6: The Extraordinary Chambers shall have the power to bring to trial
all Suspects who committed or ordered the commission of grave breaches of the Geneva
Conventions of 12 August 1949, such as the following acts against persons or property
protected under provisions of these Conventions, and which were committed during the period
17 April 1975 to 6 January 1979: (18) willful killing; (19) torture or inhumane treatment; (20)
willfully causing great suffering or serious injury to body or health; (21) destruction and
serious damage to property, not justified by military necessity and carried out unlawfully and
wantonly; (22) compelling a prisoner of war or a civilian to serve in the forces of a hostile
power; (23) willfully depriving a prisoner of war or civilian the rights of fair and regular trial;
(24) unlawful deportation or transfer or unlawful confinement of a civilian; taking civilians as
hostages (ECCC: 2004, 3).
20
UN., RGC., Law on the Establishment of the Extraordinary Chambers, with inclusion ofamendments as promulgated on 27 October 2004 (NS/RKM/1004/006), LAW ON THE
ESTABLISHMENT OF EXTRAORDINARY CHAMBERS IN THE COURTS OF
CAMBODIA FOR THE PROSECUTION OF CRIMES COMMITTED DURING THE
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provinces. The survey asked a series of questions regarding Khmer Rouge Trail and Duch
(Case 001). In respond to the question “Are you aware of trail of the Khmer Rouge leaders?”
There were 82 percent of the total respondents said “Yes”. Q.2 “Is the trail of Khmer Rouge
leaders providing justice?” There were 70 percent of respondents replied “Yes” (IRI: 2009, 40-
43).
27International Republican Institute, Survey of Cambodian Public Opinion 2009, (IRI, 2009:
40-43)
h. The Status of Suspects in the Case 002 and Current Status of Case 002, 003, 004
Monday 21 November 2011 marks the start of the long-awaited trial of Khmer Rouge senior
leaders (Case 002)28 for genocide, war crimes, and crimes against humanity before the
Extraordinary Chambers in the Courts of Cambodia (ECCC). The trial is a historic step forward
in Cambodia’s search for justice. After years of pre-trial investigations, ECCC has brought
charges of mass atrocity crimes against Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng
Thirith.
The four Accused persons occupied key positions in the Democratic Kampuchea
government, which ruled Cambodia in a bloody reign of terror from 1975 to 1979
(CJA/IHRLC: 2011, 1).
28The Center for Justice & Accountability (CJA)., The International Human Rights Law
Clinic., VICTIMS’ RIGHT TO REMEDY: AWARDING MEANINGFUL REPARATIONS
AT THE ECCC, (University of California, 2011: 1)
In December, the Supreme Court Chamber began preparatory review29 and research on issues
relating to the scope of Case 002/01. Trail Chamber: Following the conclusion of the hearing of
evidence and closing arguments in Case 002/01 on 31 October, the Trial Chamber is currently
engaged in judgment drafting. The verdict is expected in the second quarter of 2014 (ECCC:
2014, 4).
On 11 and 12 December, the Trial Chamber held a trial management meeting to facilitate the planning of the second phase of Case 002. The chamber heard the parties to Case 002 and
representatives of the Office of Administration on issues including the possibility of
establishing a second trial panel.
On 20 December, the president of the Trial Chamber issued a memorandum informing the
director of the Office of Administration that he is not recommending the appointment of a
second Trial Chamber panel to hear the remaining charges in the second phase of Case 002.
The president took into consideration legal uncertainties regarding the appointment of a second
panel, as well as the time that would be required for its establishment and preparation for the
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meet additional commitments. The low morale of staff, including judicial officials, is adversely
affecting the effective functioning of the Extraordinary Chambers and the uncertainties
regarding financial stability are adding to the already difficult challenges set out above. A recent
mission to UNAKRT by the Staff Counsellor’s Office confirmed that the continuing financial
constraints that affected staff contracts and extensions were a factor within the Chambers that
was detrimental to the mental health and psychological well-being of the staff. It also
independently confirmed the increasingly low morale of UNAKRT staff, who showed
continuing signs of tension and anxiety (UN: 2012, 14).
37General Assembly, Report of the Secretary-General of United Nations, (UN, 2012: 14)
Serious allegations38 about corruption on the Cambodian side of the administration of the
Chambers were dealt with through the conclusion of an agreement on an independent counselor
in 2009. Challenges posed by public statements by senior members of the Government of
Cambodia, and allegations of lack of cooperation by the Cambodian component of the
Chambers in the investigation in cases 003 and 004, have required significant time and attention
on the part of senior officials of the United Nations and will need to be dealt with in order for
the success of the Chambers to continue (UN: 2012, 15).
38
General Assembly, Report of the Secretary-General of United Nations, (UN, 2012: 15)
VIII. Recommendations and Discussion
a. ECCC alienation from the political influences
The Royal Government of Cambodia has to obey the Agreement and stop interfering on the
ECCC because The ECCC, the UN, and the court’s donors face a serious problem with Cases
003/004: namely, the Cambodian government’s political opposition to accountability for
Khmer Rouge crimes for all but a small, pre-selected group of persons. To address this problem, the UN, donors, and the court’s staff must rededicate themselves to the task at hand
and demonstrate increased determination to fulfill the court’s mission—including pursuing
Cases 003/004 to their conclusion. As this paper has demonstrated, other options, including
transferring cases to a wholly Cambodian jurisdiction or a partial withdrawal by the UN from
the ECCC Agreement, are untenable. Justice for the Khmer Rouge’s victims requires that the
court complete all of the cases currently before it.
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The Cambodian Supreme Council of the Magistracy has to obey the international agreement
with the United Nations to avoid such a decided case regarding to not appointing Mr. Kasper-
Ansermet as an international investigation judge ever happen again because the delay had
affected to the justice finding process. And Cambodian judges, especially investigating judge,
in the ECCC has to perform his/her own duty accordance to international and national laws
regardless of personal interest or political influences unlike a Cambodian co-investigating
judge of Mr. Kasper-Ansermet that not cooperated in Case 003 and 004.
c. Shorten and Precise Work Procedure in Administration
Work procedure in the administrative department has to be shorten and précised in order to
clear all remaining administrative works in time and it can make the overall work of the court
go smoothly. For those rules required by the laws, it has to be maintained but for those rules
that are not for the interest of the court work has to be reviewed.
d. International responsibility regarding to the budget
Urgent and substantial financial contributions are required for the future operations of the
Chambers are to be assured and the unpredictable consequences of a lack of funds avoided. To
put the judicial proceedings before the Chambers in jeopardy for lack of funds would run
counter to the message of “no impunity” that the Secretary-General has consistently underlined
and that has been progressively strengthened through nearly two decades of United Nations and
United Nations- assisted criminal tribunals.
IX. Conclusion
There is no pure justice in this world. There is only compromised justice by the law of the
superior. That means no natural justice but social justice. The path to find justice is a very
challenging way of work because human being likes to do wrong than right but they likes to
obtain right than wrong and live without responsibility toward themselves and an others.
However, in this world there are still plenty of persons love to preserve right and justice for all.
The initiative to create ECCC is a role model for the court system in the world and it created by
whom care and believe in justice.
The process of establishment of the ECCC started since 1997 initiated by the Royal
Government of Cambodia through a co-signed letter from the First and Second Prime Ministerof Cambodia and then the United Nations General Assembly (UNGA) adopted a resolution
57/228 in December 2002 and the court reached the Agreement in 2003 under the Cambodian
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laws along the line of international laws. It needs 6-year of hard work to be born. The court
spent 12-year from 1997 to 2009 to be able to start the first hearing. It involved many people,
spent a lot of money, negotiated a lot of words, consumed a lot of time but it means for justice
and it worth a lot for the victim of the Pol Pot regime.
For the first trail, case 001, started on 17 September 2009 and concluded on 27 November 2010 to charge Duch, head of Toul Sleng prison or S-21 took more than one year to final decision. It
was a long awaited trail by thousands of victims who was so anxious to see perpetrator to face
justice. Then the Court announced to sentence Duch for life imprisonment. The majority of
Cambodian people, 67 percent totally agree with the trail by IRI survey in 2009, are happy with
the court decision-making. Then in 2010, the case 002 started at the Pre-Trail Chamber. In
2012, the case 002/1 and 002/2 went through to the Trail Chamber and in 2013 the case 003 and
004 was being in the hand of Pre-Trail Chamber. It needs a lot more time but I believe the
justice will be preserved. And it is a strong message to all country leaders around the world
including Cambodia to see the consequences of committed crime in every form. The ECCC was
recognized as the role model of the hybrid court for the international court system around the
world. It is a good time that Cambodian court officials can learn a lot of things from the
Extraordinary Chamber in the Court of Cambodia (ECCC) to make the Cambodian judiciary
system more strong.
X. References
1. Lt. General Saroeun, P. (2014). DIFID Strategy of Decho Sen of Cambodia. 242
2. Lt. General Saroeun, P. (2014). DIFID Strategy of Decho Sen of Cambodia. 243
3. GENERAL ASSEMBLY SECURITY COUNCIL. (1999). Report of the Group of Experts
for Cambodia established pursuant to General Assembly resolution 52/135. 7
4. GENERAL ASSEMBLY SECURITY COUNCIL. (1999). Report of the Group of Experts
for Cambodia established pursuant to General Assembly resolution 52/135. 6
5. General Assembly. (2003). Resolution adopted on the report of the Third Committee
(A/57/806) 57/228. Khmer Rouge trials/ Recalling its resolution 57/228. 2-12
6. United Nations General Assembly. (2012). Report of the Secretary-General A/67/380/. 81
7. Sok, C. (2001). Constitutional Council/ Case No. 038/001/2001/ Decision No.
040/002/2001. 3
8. Ranariddh, N., Sen, H., (1997). Letter dated 21 June 1997 from the First and Second Prime
Ministers of Cambodia addressed to the Secretary-General, GENERAL ASSEMBLY Fifty- first session Agenda item 110 HUMAN RIGHTS QUESTIONS/ SECURITY COUNCIL/
Fifty-second year/ A/51/930/ S/1997/488. 1
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