2016 Meisenberg&stegmiller

International Criminal Justice Series Volume 6
The Extraordinary
Chambers
in the Courts
of Cambodia
Assessing their Contribution
to International Criminal Law
Simon M. Meisenberg
Ignaz Stegmiller Editors
International Criminal Justice Series
Volume 6
Series editors
Gerhard Werle, Berlin, Germany
Lovell Fernandez, Bellville, South Africa
Moritz Vormbaum, Berlin, Germany
Series Information
The International Criminal Justice Series aims to create a platform for publications
in the whole field of international criminal justice. It, therefore, deals with issues
relating, among others, to:
– the work of international criminal courts and tribunals;
– transitional justice approaches in different countries;
– international anti-corruption and anti-money laundering initiatives;
– the history of international criminal law.
The series concentrates on themes pertinent to developing countries. It is peer-
reviewed and seeks to publish high-quality works emanating from excellent schol-
ars, in particular from African countries.
Editorial Office
Prof. Dr. Gerhard Werle
Humboldt-Universität zu Berlin
Faculty of Law
Unter den Linden 6,
10099 Berlin, Germany
gerhard.werle@rewi.hu-berlin.de
moritz.vormbaum@rewi.hu-berlin.de
More information about this series at http://www.springer.com/series/13470

Simon M. Meisenberg · Ignaz Stegmiller
Editors
The Extraordinary Chambers

in the Courts of Cambodia
Assessing their Contribution to International
Criminal Law
13
Editors
Simon M. Meisenberg Ignaz Stegmiller
Aachen Faculty of Law
Germany Franz von Liszt Institut
Giessen
Germany
ISSN 2352-6718 ISSN 2352-6726 (electronic)

International Criminal Justice Series
ISBN 978-94-6265-104-3 ISBN 978-94-6265-105-0 (eBook)
DOI 10.1007/978-94-6265-105-0
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The Extraordinary Chambers in the Courts
of Cambodia
Assessing their Contribution to International Criminal Law
The Extraordinary Chambers in the Courts of Cambodia (ECCC) were estab-

lished in 2006 to bring to trial senior leaders and those most responsible for seri-
ous crimes committed under the notorious Khmer Rouge regime. Established by
domestic law following an agreement in 2003 between the Cambodia and the
UN, the ECCC’s hybrid features provide a unique approach of accountability for
mass atrocities. The book entails an analysis of the work and jurisprudence of the
ECCC, providing a detailed assessment of their legacy and contribution to inter-
national criminal law. The collection, providing a foreword by Judge Chung and
containing twenty chapters from leading scholars and practitioners with intimate
knowledge of the ECCC, discuss the most pressing topics and its implications
for international criminal law. These include the establishment of the court, sub-
ject matter crimes, joint criminal enterprise and procedural aspects of the ECCC
procedure.
v
vi The Extraordinary Chambers in the Courts of Cambodia
Phnom Penh. Khmer Rouge. Killing Fields. Cambodia’s bloody past before the
ECCC despite all political obstacles. New terms, a different methodology and the
influence of the Asian way of thinking provide fresh food for thought. The ECCC
demonstrates that there is not only The Hague’s understanding of our new cur-
rency, namely vigorously applied international criminal law. Apparently, distance
and (not only) legal culture may also make a difference in such a hybrid court.
The editors’ systematic approach grants genuine access to the history of this
extraordinary court and its achievements in developing further substantive and
procedural international criminal law. Impressive contributors reflect the role and
in part changing opinion of judges and counsel working in this different envi-
ronment. Apparently the broader the research and its legal basis the more tangi-
ble becomes the tension between the identification of customary international
law since Nuremberg and adherence to fundamental principles of criminal law
(e.g. nullum crimen sine lege).
This book is a must for all open-minded practitioners, scholars and young profes-
sionals in ICL.
Professor Wolfgang Schomburg

DCL (Durham, UK)
former Judge at the
International Criminal Tribunal for the former Yugoslavia
and International Criminal Tribunal for Rwanda
For almost a decade, the Extraordinary Chambers of the Courts of Cambodia

(ECCC) have been investigating and trying crimes of a scale not seen since the
Nuremberg Tribunal. An estimated 1.7 million Cambodians lost their lives dur-
ing the Khmer Rouge regime of 1975–1979. When justice was finally promised,
many doubted it could be delivered, particularly as it was born of a UN—Cambodia
compromise under which national authorities would have the greater power.
This volume of essays shows how the ECCC has struggled with the challenges
and in varying measure has succeeded in creating a jurisprudence of global sig-
nificance, a new model for adjudication of mass crimes under a civil-law and
victim-participating procedure, and an evidentiary record, tested by courtroom con-
frontation, that for Cambodians may be its most important legacy.
Stephen J. Rapp
former international prosecutor and
former US ambassador-at-large for global criminal justice
Foreword
Since its establishment, the ECCC, as a mixed court, has proved that it can handle
international crimes in accordance with international standards of due process and
the rule of law. Through the participation of the Cambodian Judiciary in the ECCC
proceedings, the ECCC has enhanced the sense of involvement of the Cambodian
people in the court cases. By collecting and exchanging information on capacity-
needs, the ECCC has strengthened the national justice system and its capacity. In
this regard, the ECCC has provided the most valuable example of implementation
of the Principle of Complementarity of the ICC.
Furthermore, the ECCC is the first international court to allow victims to par-
ticipate as full parties in the proceedings, and has demonstrated that victims’ full
participation can be balanced with the rights of other parties. The ECCC’s unique
position to clarify the state of International Humanitarian Law prior to 1975–1979
has resulted in certain landmark decisions demonstrating the development of the
International Humanitarian Law by bridging the 50 years gap between the Post-
World War Courts and the UN-backed international tribunals. These achievements
of the ECCC are more valuable because they have been achieved while overcom-
ing the inherent limits arising from its mixed character such as a lack of adequate
funding and complex structure.
As the only international tribunal established in Asia, the ECCC has shown vast
potential for development in the areas of the rule of law and human rights through-
out Asia. The legacy of the ECCC may enable the integrated and well-balanced
development of the rule of law and human rights in this region. And the legacy of
the ECCC could be continuously and systematically disseminated throughout Asia
by establishing the Asian Court of Human Rights. Given the immense popula-
tion of Asia, the fast economic growth of Asian states, and the great enthusiasm of
Asian people, it is now the right time to open up discussions for the establishment
of the Asian Court of Human Rights, and the experience and jurisprudence of the
ECCC would be very useful for this purpose.
The ECCC is now facing challenges to provide an efficient and productive
manner by which it could conclude proceedings while taking full advantage of
its resources. To this end, the 11th Plenary Session of the ECCC in 2015 adopted
vii
viii Foreword
the amendment of the Internal Rules of the ECCC, allowing a selection and con-
centration process based on the representativeness of the cases. By continuously
providing the ECCC with various views and solutions on how to overcome those
challenges faced by the Court as we can find in this book, more meaningful and
expeditious procedures and practices would certainly arise for the ECCC to com-
plete its mission.
The Hague, Autumn 2015 Chang-ho Chung

Judge at the International Criminal Court
former United Nations International Judge at the
Extraordinary Chambers in the Courts of Cambodia
Contents
1 Introduction: An Extraordinary Court. . . . . . . . . . . . . . . . . . . . . . . . . 1

Simon M. Meisenberg and Ignaz Stegmiller
Part I Assessing the History, Establishment, Judicial Independence

and Legacy
2 Trials and Tribulations: The Long Quest for Justice
for the Cambodian Genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Helen Jarvis
3 Allegations of Political Interference, Bias and Corruption
at the ECCC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Shannon Maree Torrens
4 The 1979 Trial of the People’s Revolutionary Tribunal
and Implications for ECCC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Frank Selbmann
5 Expectations, Challenges and Opportunities of the ECCC. . . . . . . . . 103
Jeudy Oeung
6 The Legacy of the ECCC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Viviane E. Dittrich
Part II Assessing the Contributions to Substantive International

Criminal Law
7 The Duch Case: The ECCC Supreme Court Chamber’s
Review of Case 001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Franziska C. Eckelmans
8 The Case 002/01 Trial Judgment: A Stepping Stone
from Nuremberg to the Present?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Russell Hopkins
ix
x Contents
9 The Theory of Joint Criminal Enterprise at the ECCC:

A Difficult Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Lachezar Yanev
10 Legal Constraints in the Interpretation of Genocide. . . . . . . . . . . . . . 255
Mélanie Vianney-Liaud
11 Forced Transfer and Customary International Law:
Bridging the Gap Between Nuremberg and the ICTY . . . . . . . . . . . . 291
Nathan Quick
12 Issues of Sexual and Gender-Based Violence at the ECCC. . . . . . . . . 321
Valerie Oosterveld and Patricia Viseur Sellers
13 The Grave Breaches Charges at the ECCC: An Analysis
of International Humanitarian Law in the Duch Case. . . . . . . . . . . . 353
Noëlle Quénivet
14 Past Crimes and the Effect of Statutory Limitations on the ECCC. . . 375
David Boyle
Part III Assessing the Contributions to International

Criminal Procedure
15 Trial Process at the ECCC: The Rise and Fall
of the Inquisitorial Paradigm in International Criminal Law?. . . . . 389
Sergey Vasiliev
16 Managing Enormous Mass Crimes Indictments: The ECCC
Severance Experiment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
Anne Heindel
17 Frail Accused and Fitness to Stand Trial . . . . . . . . . . . . . . . . . . . . . . . 461
Roger L. Phillips
18 The Admission of Torture Statements into Evidence. . . . . . . . . . . . . . 491
Tobias Thienel
19 Recognizing the Limits of Victims Participation: A Comparative
Examination of the Victim Participation Schemes at the ECCC
and the ICC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515
Binxin Zhang
20 Legal Developments of Civil Party Participation at the ECCC. . . . . 535
Ignaz Stegmiller
ANNEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569
Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
Editors and Contributors
Editors
Simon M. Meisenberg Attorney-at-Law in Germany and formerly a Legal Advi-

sor to the Extraordinary Chambers in the Court of Cambodia and a former Senior
Legal Officer at the Special Court for Sierra Leone.
Ignaz Stegmiller Coordinator for the International Programs of the Faculty of Law
at the Franz von Liszt Institute for International and Comparative Law, Department
for Public Law, International Law and European Union Law. Dr. Stegmiller worked
as a Technical Advisor of GIZ/CPS for the Cambodian Human Rights Action Com-
mittee (CHRAC) in Cambodia. He holds a Ph.D. (summa cum laude) from the
Georg August University of Göttingen. His research topic was “The Pre-Investi-
gation Stage of the International Criminal Court—Criteria for Situation Selection”
(published with Duncker & Humblot 2011).
Contributors
David Boyle Attorney (avocat) admitted in France and former Legal Officer of
the Office of the Co-Investigating Judges (ECCC). He holds a Doctorate degree in
international law from the University of Paris. He wrote his Ph.D. thesis, in French
language, on the UN and Cambodia from 1979 to 2003, covering the evolution
through peace to democratization and international criminal justice.
Chang-ho Chung Judge at the International Criminal Court and formerly a United
Nations Judge on the Pre-Trial Chamber of the ECCC. Prior to this he served as
Legal Attaché and Korean Delegate for the UNCITRAL (United Nations Commis-
sion on International Trade Law) at the Embassy of the Republic of Korea and
Permanent Mission in Vienna. Since 2004 he has served as a high court judge in
South Korea. Prior to this, Judge Chung served eight years as district court judge
xi
xii Editors and Contributors
and three years as a court martial judge. Judge Chung holds a Bachelor of Law and
a Master of Law (International Law) from Seoul National University. He has also
been a Research Scholar at the London School of Economics and Political Science
and at the University of Hong Kong.
Viviane Dittrich Postgraduate Researcher, Department of International Relations,
London School of Economics and Political Science (LSE), London, UK.
Franziska C. Eckelmans Legal Officer in the Appeals Chamber of the Interna-
tional Criminal Court (on leave in 2015) and formerly Legal Advisor at the Trial
Chamber of the ECCC from 2009 to 2011.
Anne Heindel Legal Advisor to the Documentation Center of Cambodia (DC-
Cam) and Editor-in-Chief (English) of the Cambodia Law and Policy Journal.
Among other ECCC-related publications, she co-authored Hybrid Justice: The
Extraordinary Chambers in the Courts of Cambodia (University of Michigan Press,
2014) and was a regular expert commentator on ECCC legal filings for Northwestern
University School of Law’s Cambodia Tribunal Monitor. Previously she served
as assistant director of the War Crimes Research Office at American University’s
Washington College of Law. She holds a J.D. from Hastings College of Law,
University of California at San Francisco, and an LL.M. in international law from
New York University School of Law.
Russell Hopkins Legal Advisor to the Cambodian judges of the ECCC Trial
Chamber since March 2014, a role placed by the Centre for international Migration
and Development and funded by Deutsche Gesellschaft für Internationale Zusam-
menarbeit GmbH and the Federal Republic of Germany. He previously spent eight
years as a litigator and solicitor-advocate in the London office of Herbert Smith
Freehills LLP. In parallel to this, he worked on various defence teams, at trial and
on appeal, at the International Criminal Tribunals for the Former Yugoslavia and
Rwanda. He spent one year as a Judicial Assistant at the Supreme Court of the
United Kingdom and holds an LL.M. (with distinction) from Strathclyde Univer-
sity, where his dissertation evaluated the advocacy of David Maxwell Fyfe during
the trial of major Nazi war criminals at Nuremberg.
Helen Jarvis Advisor to the Royal Government of Cambodia. She first visited
Cambodia in 1967 and returned 20 years later to assist in the reconstruction of the
National Library of Cambodia. From 1995–2001 she was a Consultant on Docu-
mentation for Yale University’s Cambodian Genocide Program, and since 1999 has
been an advisor on the Cambodian Government Task Force on the Khmer Rouge
Trials, chaired by Deputy Prime Minister Sok An. Between 2006 and 2010 Dr. Jarvis
was the Chief of the Public Affairs Section and later Chief of the Victims’ Support
Section at the ECCC. Dr. Jarvis is co-author (with Tom Fawthrop) of ‘Getting away
with genocide? Elusive Justice and the Khmer Rouge Trials’. She holds a Ph.D.
in Indonesian Studies, and was previously an Associate Professor and Head of the
School of Information, Library and Archive Studies, at the University of New South
Wales, Sydney, Australia. She holds both Australian and Cambodian nationalities.
Editors and Contributors xiii
Jeudy Oeung Human Rights Programme Officer at the Embassy of Sweden in

Phnom Penh, Cambodia. Previously he was a ‘Khmer Rouge Tribunal’ Project
Officer at the Secretariat of the Cambodian Human Rights Action Committee
(CHRAC), a coalition of 21 local NGOs and associations. He holds a Master of
International Relations from Pannasastra University of Cambodia and a Bachelor of
Law from Faculty of Law and Economics, Phnom Penh.
Valerie Oosterveld Assistant Professor and Director of the International Internship
Program at the University of Western Ontario. She teaches Public International Law,
International Human Rights Law and International Criminal Law. Her research and
writing focuses on gender issues within international criminal justice. She earned her
LL.B. from the University of Toronto and her LL.M. and S.J.D. from Columbia Law
School. Before joining the faculty at the University of Western Ontario, Prof. Oosterveld
worked in the Legal Affairs Bureau of Canada’s Department of Foreign Affairs and In-
ternational Trade, giving advice on international criminal accountability for crimes of
war, crimes against humanity and genocide. She advised for the International Criminal
Tribunals for Rwanda and the former Yugoslavia, the Special Court for Sierra Leone,
and other transnational justice mechanisms like truth and reconciliation commissions.
Roger L. Phillips Legal Officer, Trial Chamber of the ECCC from 2011 to present,
former Associate Legal Officer in the Trial Chamber of the International Crimi-
nal Tribunal for Rwanda from 2009 where he was involved in the drafting of the
Nyiramasuhuko et al. (Butare) judgement. He has also taught international criminal
law at the Royal University of Law and Economics in Phnom Penh and serves as an
advisor to the Chinese Initiative of International Criminal Justice. He is licensed to
practice law in Colorado, U.S.A., and is a graduate of American University’s Wash-
ington College of Law (J.D.) and Colorado State University (B.A.).
Noëlle Quénivet Associate Professor in International Law and Head of the Inter-
national Law and Human Rights Unit, Department of Law, University of the West
of England, United Kingdom. From 2002 to 2006 she worked as a researcher at the
Institute for International Law of Peace and Armed Conflict at the University of
Bochum, Germany. She holds a Ph.D. from the University of Essex and an LL.M.
in International Human Rights Law from the University of Nottingham.
Nathan Quick Research Assistant for the Trial Division of Chambers at the In-
ternational Criminal Court. He previously served as an Associate Legal Officer at
the Extraordinary Chambers in the Courts of Cambodia and as an Attorney on the
Charles Taylor Prosecution Team at the Special Court for Sierra Leone. He is li-
censed to practice law in Illinois, U.S.A., and is a graduate of Case Western Reserve
University School of Law (J.D.) and Concord University (B.A.).
Frank Selbmann Dr. jur., Attorney-at-Law, Leipzig. He is a member of the Work-
ing Group against Impunity of Amnesty International Germany. His voluntary work
for Amnesty focuses on the Code of Crimes against International Law and its ap-
plication in Germany. He holds a Ph.D. from the University of Leipzig. His doctoral
thesis addressed questions of the definition of Genocide.
xiv Editors and Contributors
Patricia Viseur Sellers International criminal lawyer and the Special Advisor for
Prosecution Strategies to the Prosecutor of the International Criminal Court. She is
a Visiting Fellow at Kellogg College of Oxford University where she lectures on
international criminal law. From 1994–2007, Ms. Sellers was the Legal Advisor for
Gender Related Crimes and Senior Acting Trial Attorney in the Office of the Pros-
ecutor for the International Criminal Tribunals for the former Yugoslavia and for
Rwanda where she advised and litigated cases, such as, the Prosecutor v.Furundžija,
the Prosecutor v. Akayesu and the Prosecutor v. Kunarac. She has been a Special
Advisor to the Secretary-General’s Special Representative for Children in Armed
Conflict, and, in 2000, was the Co-Prosecutor at the International Women’s Tribunal
that conducted a symbolic trial to redress crimes committed against the Comfort
Women. She is a recipient of the American Society of International Law’s Promi-
nent Women in International Law Award. In 2006 she was named an Honorary Fel-
low by University of Pennsylvania Law School and in 2001 she received an Honor-
ary Doctorate of Law from the Law School of City University of New York.
Tobias Thienel Attorney-at-Law in Kiel, Germany. Former Research Associate at
the Walther Schücking Institute for International Law at the University of Kiel.
During his legal training he worked with the European Court of Human Rights. He
holds a Ph.D. (suma cum laude) from the University of Kiel and an LL.M. from
the University of Edinburgh and is a member of the scientific advisory board of the
Goettingen Journal of International Law (GoJIL).
Shannon Maree Torrens Ph.D. Candidate at the University of Sydney Law School
and admitted as a lawyer of the Supreme Court of New South Wales, Australia.
Her doctoral thesis is focused on international criminal law and justice. She has
a BA (Media and Communications, Government and English) and a Bachelor of
Laws (LL.B.) (Honours) from the University of Sydney, with a specialization in
public international law, international criminal law, international humanitarian law
and international human rights law. Shannon has had experience working in interna-
tional criminal law at the international criminal tribunals and courts for Rwanda, the
Former Yugoslavia, Sierra Leone and Cambodia. In addition, she has worked with
the Marshall Islands Permanent Mission to the United Nations in New York in the
UN General Assembly Sixth Committee (Legal). Shannon is currently an Editorial
Advisor for the Cambodia Law and Policy Journal.
Sergey Vasiliev Assistant Professor of Public International Law, Leiden Univer-
sity. Previously, he worked as a postdoctoral researcher in international criminal
law at the Vrije Universiteit Amsterdam (2012–15) and at the University of Amster-
dam (2006–12), where he earned his Ph.D. (cum laude) for the thesis International
Criminal Trials: A Normative Theory (2014). He also holds an LL.M. degree in in-
ternational and European criminal law (Maastricht University, 2005, cum laude). In
2009–2013, Sergey was a (coordinating) member of the International Expert Frame-
work on International Criminal Procedure (IEF) and co-editor of the treatise that
the expert group produced, International Criminal Procedure: Principles and Rules
(OUP, 2013). He is on the editorial board of the Leiden Journal of International Law.
Editors and Contributors xv
Mélanie Vianney-Liaud Legal Consultant on the Legal Representative of the

Victims’ team in the Bemba case at the ICC and Ph.D. Candidate in law at
Aix-Marseille University, France. Her doctoral research focuses on the ECCC.
Lachezar Yanev Doctoral researcher in the Criminal Law Department of Tilburg
University. His research deals with the theories of co-perpetration under interna-
tional criminal law. He holds an LL.M. degree in international criminal and human
rights law (Utrecht University, 2010, cum laude) and a BA honours degree in social
sciences (University College Utrecht, 2009, cum laude). Mr. Yanev has previously
worked as an assistant legal officer in Trial Chamber II of the SCSL, and has also
interned at the ICTY (Office of the Prosecutor), ICC (Office of the Prosecutor) and
SCSL (Chambers). His research and publications extend in the field of international
criminal law and human rights law.
Binxin Zhang Assistant Professor at Xiamen University Law School. She has pre-
viously worked as postdoctoral research fellow at Xiamen Law School, as Legal
Officer in the International Committee of the Red Cross Regional Delegation for
East Asia and as a trial monitor of the Asia International Justice Initiative Trial
Monitoring group, monitoring the Duch case before the ECCC. She holds a Ph.D.
in international law from Renmin University of China. She has published articles
on international criminal law and procedure. She teaches Public International Law,
International Criminal Law and International Humanitarian Law.
Abbreviations
CAT Convention against Torture (1984)

CIJ Co-Investigating Judges, ECCC
CPK Communist Party of Kampuchea
DC-Cam Documentation Center of Cambodia
DK Democratic Kampuchea
DSS Defence Support Section, ECCC
ECCC Agreement 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 (signed 6 June 2003,
promulgated as Law on 19 October 2004 and entered into
force on 29 April 2005)
ECCC Law 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,
with inclusion of amendments as promulgated on 27
October 2004 (NS/RKM/1004/006).
Reprinted in the Annex
ECCC or the Court Extraordinary Chambers in the Courts of Cambodia
ECHR European Convention of Human Rights
ECtHR European Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IMT International Military Tribunal
IMTFE International Military Tribunal for the Far East
IR Internal Rules of the ECCC
JCE Joint Criminal Enterprise
OCIJ Office of the Co-Investigating Judges, ECCC
OCP Office of the Co-Prosecutors, ECCC
xvii
xviii Abbreviations
PTC Pre-Trial Chamber, ECCC

RPE Rules of Procedure and Evidence
SCC Supreme Court Chamber, ECCC
SCSL Special Court for Sierra Leone
SPSC Special Panels for Serious Crimes, East Timor
STL Special Tribunal for Lebanon
TC Trial Chamber
UN United Nations
UNAKRT United Nations Assistance Mission to the Khmer Rouge
Trials
UNWCC United Nations War Crimes Commission
VSS Victims Support Section, ECCC
Chapter 1
Introduction: An Extraordinary Court
Simon M. Meisenberg and Ignaz Stegmiller
Abstract Established in 2006, the ECCC brought to trial senior leaders and those
most responsible for serious crimes committed under the notorious Khmer Rouge
regime. Established by domestic law following an agreement in 2003 between the
Kingdom of Cambodia and the UN, the ECCC’s hybrid features provide a unique
approach to accountability for mass atrocities. As an introductory note to this
edited book the unique challenges of the ECCC are highlighted, as are the lessons
which can be learned from this exceptional and extraordinary court.
Keywords International criminal law and procedure · Genocide · Crimes

against humanity · War crimes · Sexual violence · Fair trial
The work of criminal tribunals prosecuting mass atrocities is not free from gener-
alized criticism. The moral argument of breaking cycles of impunity is no longer
a satisfactory explanation for the need of international justice, as it may have
been in the early 1990s. The prosecution of genocide, crimes against humanity
Simon M. Meisenberg is Attorney-at-Law (Germany); Ignaz Stegmiller is Coordinator for the

International Programmes of the Faculty of Law, Franz von Liszt Institute for International and
Comparative Law, Justus Liebig Universität Gießen.
S.M. Meisenberg (*)
Aachen, Germany
e-mail: simonmmeisenberg@gmail.com
I. Stegmiller
Justus Liebig University, Giessen, Germany
e-mail: ignaz.stegmiller@recht.uni-giessen.de
© t.m.c. asser press and the authors 2016 1

S.M. Meisenberg and I. Stegmiller (eds.), The Extraordinary Chambers
in the Courts of Cambodia, International Criminal Justice Series 6,
DOI 10.1007/978-94-6265-105-0_1
2 S.M. Meisenberg and I. Stegmiller
and war crimes at international(ized) courts and tribunals is by now all too com-
monly accompanied with disapprovals over their expense, inefficiency, selectivity
and politicization. Too often such tribunals are overburdened with expectations,
rather than simply expecting an impartial trial establishing the criminal responsi-
bility of an individual. Given the fact that mass crimes leave an imprint on the
understanding of a nation’s identity, history and its future development, there have
been calls for broader goals of international justice. Such goals include primarily
reconciliation, but also the need to assist a debilitated judiciary. The Extraordinary
Chambers in the Courts of Cambodia (ECCC) had to master such expectations. As
this volume highlights, despite all the difficulties and challenges of the Court, the
ECCC has delivered a rich experience of jurisprudence that deserves scrutiny and
analysis in order to explore its legacy but also as a contribution to international
criminal justice. As this volume demonstrates, general criticism towards the ECCC
and many aspect of international criminal law can be superficial and misses a criti-
cal assessment of the law and practice of a court such as the ECCC. It is not pos-
sible to throw a stone without hitting a problem within the framework and practice
of the ECCC. This is particularly true with respect to the establishment, the juris-
diction, the definition of the crimes, the procedure and the legacy of the court. All
of these topics demand a detailed analysis of the work and practice of the Court.
This volume therefore attempts to contribute to a better understanding of the chal-
lenges encountered not only by the ECCC, but by international criminal justice as
a whole.
On 17 April 1975 a communist armed opposition group known as the Khmer
Rouge seized power in the capital of Phnom Penh. This victory was preceded by
a period of protracted and violent conflict that had seen Cambodia’s longstand-
ing monarchy toppled and the countryside carpet bombed by the US air force as
a measure to contain the war in neighboring Vietnam. Following the seizure of
power in the Cambodian capital, the ultra-communists headed by Pol Pot moved
forward to impose their ideas and ideals of a communist society, radically trans-
forming Cambodia into an agrarian society of peasants, with total disregard of
individual rights and humanity. Towns were emptied within a short period of time
in order to ensure the cultivation of the rural areas. Many died on those transfer
marches. Those who survived were organized into cooperatives and forced to work
in labor sites. Families were torn apart, subjugated to the ideals of the new soci-
etal structure: the communist party, which was generally referred to as Angkar.
Suspicions that traitors from within were undermining the regime arose, result-
ing in re-education programs which saw people being tortured and murdered in
order to remove the perceived enemies. It is estimated that 1.7 million humans lost
their lives under the reign of terror, either directly or through starvation, exhaus-
tion and disease. The Vietnamese finally toppled the regime in January 1979. The
hardliners under Pol Pot were able to destabilize Cambodia from their heartland
in Northwestern Cambodia throughout the 1980s. The civil war only ended in
1991 with the Paris Peace Agreement. Attempts to hold perpetrators accountable
only came to fruition in 2006, following yearlong negotiations between the United
Nations and Cambodia.
1 Introduction: An Extraordinary Court 3
The result of the negotiations was an internationalized court structure, placing

multi-tiered chambers within the domestic Cambodian judiciary, ensuring insig-
nia of independence through UN participation. The official name of the ECCC
refers to “chambers” and not a single “court”. The ECCC however are legally an
entirely self-contained and independent entity and court. Therefore and despite
the title of this book, the ECCC will be referred to as Chambers and Court inter-
changeably in this volume. We are in good company, as the ECCC judges have
done so too. Its substantive jurisdiction is based on both national and international
crimes. The international crimes include genocide, crimes against humanity, grave
breaches of the Geneva Conventions, destruction of protected cultural property
during armed conflict in accordance with the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict and crimes against
persons enjoying international protection under the 1961 Vienna Convention on
Diplomatic Relations. The national crimes include those crimes defined by the
1956 Cambodian Penal Code, enumerated in the ECCC Law as murder, torture
and religious persecution.
Part I of this book deals with pertinent issues of the ECCC such as its establish-
ment, independence and legacy. The fact that the victims of crimes perpetrated
during the Khmer Rouge period waited almost four decades to eventually find a
judicial forum is significant. This reality and the challenging negotiations between
the UN and the Royal Government of Cambodia are vividly illustrated by Helen
Jarvis in Chap. 2. As an Advisor to the Cambodian Government during the nego-
tiations she describes the different approaches to establishing the court and also
the negotiation history. Despite the difficulties and perceived weaknesses of the
structure of such a court, its eventual creation sends a powerful message to future
perpetrators. The echoes of this message will be heard beyond the cultural her-
itage of Angkor Wat, but also in Palmyra. The message is straightforward. Even
if there is no legal forum for criminal trials at the time of the atrocities, even if
the political powers at the time of the atrocities may be protecting the culprits,
and even if such powers are able to ignore their legal obligations at the time of
the crimes: tides will change. One message of the establishment of the ECCC is
that whatever the circumstances at the time of the crimes, a carte blanche does
not exist. International law is settled to address past crimes against humanity, war
crimes, and genocide. This is an important achievement, despite all criticism on
the weaknesses of the court.
The ECCC has so far completed the trial of the former Chairman of the noto-
rious S-21 Security Center (Tuol Sleng) in Phnom Penh, Kaing Guek Eav alias
Duch (Case 001). The second trial at the ECCC, Case 002, has been compared to
the Nuremberg trials, as it initially saw the remaining Khmer Rouge elite in the
dock: Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith. So far Case 002
has resulted in a trial judgment against only two of those former senior members:
the former Deputy-Secretary Nuon Chea and the former President Khieu Samphan.
Ieng Sary, the former Deputy Prime Minister for Foreign Affairs, died in March
2013 before the conclusion of the trial. Ieng Thirith, the former Social Action
Minister and wife of Ieng Sary, was declared unfit to stand trial and died in August
2015. The ECCC has also investigated two additional cases, Cases 003 and 004.
The suspects in this case are former Navy Commander Meas Muth, forced labor
camp commander Im Chaem and Ta An and Yim Tith. The handling of those two
cases brought the reputation of the ECCC into considerable disrepute. Those addi-
tional investigations triggered sharp comments from the Cambodian government,
indicating its dissatisfaction with additional investigations beyond Case 002. The
suspicious bondage of senior Cambodian ECCC officials triggered serious ques-
tions of the independence of the court.
An analysis of the work and practice of the ECCC without a contribution on
allegations of political interference would therefore simply be without can-
dor. The Defence has tirelessly challenged the independence of the institution
and the impartiality of almost all judges who have served at the ECCC, whether
Cambodian or UN appointed. In Chap. 3 Shannon Maree Torrens places these
serious challenges into their proper context. Questions of judicial independence
were even addressed to the UN’s Special Rapporteur on the Independence of
Judges and Lawyers, but so far have remained unattended. Given the framework
of the Court, it is clear that even the Secretary-General and the Office of Legal
Affairs were anxious to ensure the independence of the Court by adopting the so
called “super-majority voting rule” in Articles 14, 20, and 23 of the ECCC Law.
This rule signifies at least a general discontent vis-à-vis the Cambodian judicial
officers. Nevertheless, none of the decisions discussed by Torrens refer to that rule
as a general safeguard within the ECCC framework. Rather the decisions specifi-
cally address the independence and impartiality of individual judges. Given the
fact that none of the Judges were disqualified, Torrens refers to disturbing (unof-
ficial) remarks by two international judges that generally question their previous
judicial remarks.
Chapter 4 covers the unquestionable lack of independence of the first attempt
to address the atrocities committed by the Khmer Rouge during the Vietnamese
occupation by the so-called Revolutionary People’s Tribunal. This historical analy-
sis provides an in-depth study of early attempts of prosecutions. The pitfalls that
this trial provided for the ECCC, especially with respect to the principle of ne bis
in idem, are highlighted by Frank Selbmann.
Part I concludes with two contributions that assess the legacies of the ECCC.
The question of the legacies of international criminal tribunals is a novel topic,
which has gained attention and prominence within the last years. With regard to
international criminal tribunals this topic usually gains prominence prior to their
closure, providing an opportunity to assess the completed work. Commentators on
the ECCC started to engage in this debate much earlier. Despite the usual place-
ment of legacy studies at the end of a book such as the present one, we have delib-
erately chosen to address these topics in the first chapters, as questions of legacies
deserve more prominent attention. More importantly it places a court in a differ-
ent perspective of an institution that does not only deal with the past, but is an
actor for the judicial development of a nation. Needless to say, that we as editors
were significantly involved in a seminal conference on this topic in September
2012, which provided the initial idea for the present volume. We hope that future
courts will be guided by the legacy discourse that the ECCC experienced in this
respect. Indeed, and as raised earlier, the assistance of this discourse to the judici-
ary is of particular significance within the context of future hybrid courts. States
involved in the establishment of hybrid courts have generally accepted the need
for accountability, but were unable to guarantee effective or independent trials in
accordance with recognized international standards. In Chap. 5 Jeudy Oeung pro-
vides a Cambodian perspective on the expectations of the Cambodian population
vis-à-vis the ECCC and its accomplishments in that regards. Viviane Dittrich theo-
rizes the construction of legacies at the ECCC in Chap. 6. She traces the interest in
legacy at the ECCC and in the Cambodian context in lieu of assessing or measur-
ing the effectiveness of the institution per se.
Part II of this book focuses on the ECCC’s contributions to substantive interna-

tional criminal law. Since its establishment in 2006, the ECCC has completed two
trials, with the appeals judgment in the Case 002 against Nuon Chea and Khieu
Samphan, expected in the near future. This achievement was not an easy task.
The background to the completed trials is provided in Chaps. 7 and 8. Franziska
Eckelmanns provides a detailed overview to the substantive questions addressed
in the judgment against Kaing Guek Eav alias Duch. The substantive challenges in
Case 001 with respect to crimes against humanity and war crimes, sentencing and
the principle of legality are scrutinized. In addition, she provides the background
to the important question of the nature of the court as part of the Cambodian
legal system. This vital conclusion by the judges had a direct impact and conse-
quence of not granting Kaing Guek Eav compensation for his illegal detention in a
Cambodian military prison prior to his transfer to the ECCC detention facility. The
personal jurisdiction of the ECCC is limited to “senior leaders” and “those most
responsible”. Similarly to the Special Court for Sierra Leone in its Brima Appeals
Judgment, the ECCC Appeals Chamber does not see the need to define these terms
as limitations to its jurisdiction, but rather interprets them as policy guidelines for
the investigative authorities, giving them wide prosecutorial discretion without
judicial oversight.
Russell Hopkins provides a similar intriguing analysis of the second case tried
before the ECCC with all its challenges. His chapter offers a summary and assess-
ment of the Case 002/01 Trial Judgment, which was issued on 7 August 2014.
This chapter puts the jurisprudential relevance of the first trial judgment of Case
002 into its proper context. It provides an overview of the Trial Chamber’s factual
findings, highlighting the most important parts of the judgment, which might be
viewed as jurisprudential stepping stones from the International Military Tribunal
at Nuremberg to more recent courts and tribunals.
The Judgment in Case 002 convicted the two former Khmer Rouge senior
officials for the commission of crimes, within a Joint Criminal Enterprise (JCE),
as was Kaing Guek Eav in Case 001. In Case 002 it was alleged that the com-
mon purpose of the communist party leaders was to implement a rapid socialist
revolution in Cambodia through a “great leap forward” and to defend the party
against internal and external enemies, by whatever means necessary. The purpose
itself was not entirely criminal in nature, however its implementation resulted in
or involved the commission of crimes within the jurisdiction of the ECCC. JCE
is a mode of attribution controversially discussed in international criminal law, in
particular its ‘extended’ category JCE III. This ‘extended’ category has attained
much criticism in scholarly work for being too expansive. Significantly, the ECCC
rejected this form of joint criminal enterprise for lacking legal basis in custom-
ary international criminal law and only endorsed the ‘basic’ and ‘systemic’ form.
Lachezar Yanev in Chap. 9 provides a meticulous analysis of the ECCC case law,
adequately describing the importance of this courageous finding by the ECCC.
He places the findings within the greater context of international criminal law
and provides a renewed analysis of the Nuremberg-era cases that have been cited
by the modern international tribunals as evidence of the customary nature of the
‘extended’ form of JCE. His chapter demonstrates the importance of the jurispru-
dence of the ECCC in the development of international criminal law.
As this book demonstrates, the ECCC and the Cambodian conflict raises a myr-
iad of legal debates, starting with the question of how to appropriately classify the
atrocious crimes that were perpetrated by the Khmer Rouge between 1975 to 1979
against their own Khmer population. The number of deaths was simply too great
to keep record of the estimated death toll, varying among scholars between one
and three million. Given the sheer scale of the Cambodian atrocities, they are often
referred to as “genocide”. The victims of such horrendous crimes look at “the
crime of crimes” with undue expectations. The Convention on the Prohibition of
Genocide does not estimate a number of deaths which results in genocide. Rather
it has a clear definition of which groups are protected by its definition of geno-
cide. To the disappointment of many Cambodians, genocide charges were only
brought against the accused in Case 002. Moreover those charges were limited to
the Muslim Cham and Vietnamese minority and did not include the Khmer popu-
lations as such. The difficulty of this debate is illustrated in Chap. 10 by Melanie
Vianney-Liaud, identifying the legal constraints with respect to the legal charac-
terization of the Khmer Rouge atrocities as a crime of genocide.
Given the difficulties with respect to genocide and the sheer scale of atrocities,
crimes against humanity nevertheless provides an adequate catch-all element for
such atrocities. A prominent feature of the crimes committed by the Khmer Rouge
was the forced-transfer of the population from urban areas to the countryside. With
the capture of Phnom Penh on the eve of the Khmer Rouge reign, this ‘Pearl of
Asia’ was emptied and its population transferred to Cambodia’s hinterland. Death
and despair inevitably followed. Despite the human tragedy, courts of law are
tasked with rigorously adhering to undeniable standards of justice, in particular
the nullum crimen sine lege principle. With respect to the forced transfer of people
within Cambodia’s boundaries in the 1970s, the criminality of such displacement
had to be established. Nathan Quick looks at this complex question in Chap. 11
and how the ECCC solved it.
In an environment of violence and inhumanity sexual and gender based vio-
lence against women and men is commonplace. History has shown that this is
a reality in all cultures and societies. The failure and the delay of the ECCC to
investigate sexual crimes, despite the experience of other tribunals in this field,
is disappointing. Nevertheless, the ECCC underwent a drastic development and
eventually investigated and charged gender based violence. There are important
lessons to be drawn from the ECCC experience in this regard. The importance of
this experience is highlighted by Valerie Oosterveld and Patricia Viseur Sellars.
In their exhaustive study they highlight the positive addition of the ECCC to
the understanding of the crime of forced marriage in international criminal law.
Expectedly, they highlight some contentious aspects of the ECCC jurisprudence,
such as rape, which was not considered a specific crime against humanity in 1975
by the Supreme Court Chamber.
The relationship between international humanitarian law and international crim-
inal law is contentious, as the latter has to be applied within the framework of the
former. The jurisprudence of the ECCC and its findings on the war crimes charges
in Case 001 are challenging. The ECCC found Kaing Guek Eav guilty of a range
of grave breaches, including wilful killing, torture and wilful deprivation of the
rights of fair and regular trial. Noëlle Quénivet provides an unrestrained analysis of
the jurisprudence on the war crime of grave breaches of the Geneva Conventions in
Chap. 13, challenging it for lacking solid legal support as well as for misinterpret-
ing the law as it existed at the time of the perpetration of the crimes. This chap-
ter provides an important analysis of the shortcomings of the jurisprudence of the
ECCC with respect to war crimes within an international armed conflict.
All of the above mentioned substantive crimes could not have been prosecuted
and punished if a statute of limitations would have been applicable to such crimes.
In Chap. 14 David Boyle highlights the ECCC’s unique contribution to the debate
on the evolution over time of customary rules concerning statutory limitations.
In Part III the ECCC’s contributions to international criminal procedure are

examined. The ECCC, given its setting within the Cambodian court structure
and that it is influenced by the French legal system, adopted a different proce-
dural approach to the ad hoc international criminal tribunals. At the time of its
establishment curiosity prevailed among scholars and practitioners as to whether
an ‘inquisitorial’ procedure would provide more efficient and expeditious trials
than the ‘adversarial’ procedures adopted at the ICTY, ICTR and SCSL. Sergey
Vasiliev provides a detailed appraisal of such a claim. He stresses that the ECCC
procedural legacy provides a realistic view on the abstract debates about the pref-
erence for either the adversarial or the inquisitorial approach. As his analysis
demonstrates, the ECCC experience in this regard has implications for the con-
test between the two models of procedure. Here too the understanding of such an
experience is important to draw realistic lessons for international criminal justice.
The conclusion of the conquest between the two systems may be all too simple:
trying mass atrocities will bring any procedural model to its limits. Such pro-
ceedings are complex and take adequate time. International criminal procedure
therefore has to move away from the traditional procedural models and find an
emancipated procedure that provides for the complexities of atrocity trials.
The ECCC Trial Chamber in Case 002 attempted an economical approach to

international criminal procedure, when it severed charges against the Accused in
Case 002. Even though the Closing Order probably did not provide a complete
account of all the atrocities that occurred during the temporal jurisdiction of the
Court, the sheer scale of the crimes threatened, at least in the view of the Trial
Chamber, an efficient closure of the proceedings, especially given the advanced
age and poor health of the Accused. Anne Heindel looks at this controversial deci-
sion in Chap. 16. She highlights the struggle of balancing the obligation to hold
expeditious trials with the victims’ expectation that accused will be charged com-
prehensively. This attempt to ensure effective and efficient trials will be a lesson
for other courts dealing with similar issues. Heindel doubts that the ECCC experi-
ence may serve as guidance.
The age of the accused was not only a concern for the adoption of the severance
decision. The frailty of the octogenarian accused constantly loomed over the trial.
The ECCC repeatedly dealt with the issue of the Accused’s fitness to stand trial
and the specific accommodations necessary to ensure their meaningful participa-
tion in the proceedings. Prior to the trial in Case 002, the Accused Ieng Thirith was
found to suffer from Alzheimer’s disease and on the eve of the opening of Case
002 in November 2011 the national and international judges were unable to agree
on the consequences of such a finding. The jurisprudence with its legal challenges
and difficulties are meticulously examined by Roger Phillips in Chap. 17. He high-
lights that the ECCC followed well-established international standards for ascer-
taining fitness to stand trial. He concludes that the jurisprudence may well serve as
an example to enshrine fundamental fair trial principles, such as the concept of in
dubio pro reo and strict adherence to the requirement of meaningful participation.
Torture was a common and prominent feature during the reign of the Khmer
Rouge. Torture statements were pedantically collected by the regime, providing the
regime with a pretext rather than certainty of any admissions therein. The findings
of the Trial Chamber in its Judgment against Kaing Guek Eav provide a detailed
account of the sadistic and calculated nature of torture. The crime of torture as a
crime against humanity or as a war crime is undisputed. A more difficult ques-
tion during the ECCC trials was the use of such torture statements in the evidence,
without corrupting and degrading the court in the process. The question of the use
of torture statements even took ironic turns, albeit with considerable complex legal
notions. In Case 002 the ECCC faced the awkward question of whether one who is
accused of torture may adduce evidence that may have been obtained by torture as
exculpatory evidence. The difficulty here is that a preliminary determination has
to be made on whether torture was used to obtain such evidence. At the same time
judges must nevertheless reserve the ultimate finding on the guilt of the accused
for this same act of alleged torture until all evidence has been considered. Such
delicate legal questions are addressed by Tobias Thienel in Chap. 18. His contribu-
tion demonstrates that the ECCC jurisprudence adheres to international standards
and that its jurisprudence may be a useful guidance.
The experience gathered by the ECCC with its decision to allow victims to
participate in the trials is of considerable value. Can a criminal trial succeed if
thousands of victims participate in the proceedings? Clearly innovative solutions

are necessary in order to ensure an effective trial, but at the same time allow victims
to raise their views at trial too. This was not always an easy task, however the rich
jurisprudence of the Court will guide future tribunals through a similar endeavor in
order to provide victims with a voice. A related issue is the question of reparations.
Here as well the ECCC is providing guidance with its jurisprudence and its solid
and realistic answers. Nevertheless, the developments have undergone considerable
debate and complications which are assessed and explained in Chap. 19 by Binxin
Zhang. Through a comparative examination she provides a realistic account of what
such participation may and should achieve. Co-Editor Ignaz Stegmiller closes the
collection of contributions in Chap. 20 with a detailed discussion of the evolution
of the victim participation regime before the ECCC.
As mentioned above, the idea for the present publication was triggered by con-
clusions and recommendations made at a conference on the legacy of the ECCC.
This conference on 13 and 14 September 2012 was initiated by the co-editors,
together with our colleague and friend Michelle Staggs-Kelsall. This Conference
on the “Hybrid Perspectives on Legacies of the Extraordinary Chambers in the
Courts of Cambodia”, organized by the ECCC and CHRAC was visited by more
than 200 participants to discuss topics presented by practitioners and well-known
experts in the field of international criminal justice. A report with conclusion and
recommendations was issued.1 One of the recommendations included the jurispru-
dential legacies of the ECCC and its dissemination. This volume is the result of
those recommendations, with the idea that a critical analysis of the jurisprudence
and experience of the ECCC will contribute to international criminal law.
The need for such a critical analysis is important, as the ECCC hybrid model
has gained attention as a mechanism in international criminal justice and has in
fact gained followers. The African Union and Senegal reached an agreement to
combine efforts to prosecute former President Hissène Habré for torture atroci-
ties in Chad. The similarities reach further than just the name of the institution as
the Extraordinary African Chambers in the Courts of Senegal. Similarities, albeit
under a considerable different constructions, may be seen with the hybrid crimi-
nal courts in the Central African Republic, which are logistically assisted by the
United Nations. Last but not least, the European Union has entered the field of
international justice, agreeing to assist the judiciary of Kosovo to prosecute war
crimes and crimes against humanity committed at the end of the Kosovo liberation
war. This court too shares many similarities with the ECCC.
The notion of hybrid courts is usually hailed as a model of ownership of the
affected society. However at the same time this model opens the possibility of all
too easy criticism of domestic influence on local actors within such an institu-
tion. The ECCC has had this negative experience. The ECCC however is not the
1ReportHybrid Perspectives on Legacies of the Extraordinary Chambers in the Courts of Cambodia

(ECCC), December 2012, available at http://www.chrac.org/eng/CHRAC%20Documents/Conference
%20Report%20on%20Legacies%20of%20the%20ECCC_English_FINAL.pdf.
creation of one entity alone and is certainly not the creation of two champions
known for their effectiveness, but rather two different entities that operate in dif-
ferent leagues, in particular with respect to judicial standards. When judging the
Court, differing standards of justice need to be considered. Nevertheless, the con-
tributions in this book demonstrate that the ECCC was not only able to address
pressing problems of international criminal justice with recognized standards,
but also provides remarkable jurisprudence that may guide any future interna-
tional criminal proceeding, for its achievements, but also for its failures. This is an
extraordinary achievement of an extraordinary court.
Last but not least, we as the editors would like to include an acknowledgement
to all contributors of this volume and also to Judge Chung for agreeing to pro-
vide a Foreword. Rather then mentioning everyone involved, we would simply
state that whoever is reading these lines and has been in contact with us on issues
relating to this book, the Legacy Conference in September 2012 or any discussion
related to the ECCC: You have inspired this book and made it possible. However,
Christopher Giogios has to be expressly mentioned for his invaluable assistance.
Part I
Assessing the History, Establishment,
Judicial Independence and Legacy
Chapter 2
Trials and Tribulations: The Long Quest
for Justice for the Cambodian Genocide
Helen Jarvis
Abstract The ‘Cambodian model’ of the ECCC—a domestic court with international
participation and assistance—emerged through years of tough negotiations between
the Cambodian government and the UN, after the massive crimes had been ignored by
the international community for 20 years. This contested history provided the back-
drop to the work of the Court and to the judicial and non-judicial challenges it has
faced, giving alternate prisms through which to assess its achievements and failings.
Contents
2.1 Introduction.......................................................................................................................... 14
2.2 Background.......................................................................................................................... 15
2.2.1 The Long Process of Seeking Justice for the Khmer Rouge Crimes......................... 15
2.2.2 United Nations Acknowledgment.............................................................................. 18
2.2.3 The End of the Khmer Rouge.................................................................................... 19
2.2.4 The Law and Agreement on Establishment of the ECCC.......................................... 20
2.3 Key Features of the Extraordinary Chambers in the Courts of Cambodia.......................... 21
2.3.1 Jurisdiction................................................................................................................. 21
2.3.2 Structure..................................................................................................................... 22
2.3.3 Decisions.................................................................................................................... 23
2.3.4 Penalties, Amnesties and Pardons.............................................................................. 23
2.3.5 Procedure................................................................................................................... 24
2.3.6 Administration and Expenses..................................................................................... 24
2.3.7 The Agreement Between the Royal Government of Cambodia
and the United Nations.............................................................................................. 24
The author is an Adviser to the Royal Government of Cambodia.
H. Jarvis (*)
Phnom Penh, Cambodia
e-mail: helenjarvis@online.com.kh

DOI 10.1007/978-94-6265-105-0_2
14 H. Jarvis
2.4 Judicial Challenges.............................................................................................................. 25
2.4.1 Qualification of Crimes Prosecuted........................................................................... 26
2.4.2 National Crimes......................................................................................................... 26
2.4.3 Genocide.................................................................................................................... 27
2.4.4 Scope of the Trials..................................................................................................... 28
2.4.5 Legal and Administrative Framework for Victim Participation................................. 30
2.5 Non-judicial Challenges....................................................................................................... 34
2.5.1 The Ticking of the Clock........................................................................................... 34
2.5.2 Chronic Under-Funding............................................................................................. 35
2.5.3 The Tower of Babel.................................................................................................... 39
2.5.4 The Crusade Against the ECCC by Human Rights Organisations............................ 40
2.6 Conclusion........................................................................................................................... 41
References................................................................................................................................... 44
2.1 Introduction
During a period of three years, eight months and 20 days (from 17 April 1975 to 6
January 1979), under the rule of the Khmer Rouge known as Democratic
Kampuchea (DK), at least 1.7 million Cambodians perished, a quarter of the popu-
lation, dying in miserable circumstances of starvation, overwork and untreated ill-
ness or from brutal torture or execution.1 Although this was one of the largest and
most egregious crimes of the 20th century, a generation went by before the
Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in
February 2006, following many years of failed attempts to achieve justice, geopo-
litical manoeuvring and tortuous and difficult international negotiations.2
The final quarter of the 20th century witnessed enormous changes in the inter-
national political landscape. Moves towards setting up a tribunal to judge the
crimes of the Khmer Rouge were but one strand among many in the weaving of
the new cloth of international humanitarian and criminal law and justice—cloth
whose warp and weft are still being changed, and whose colour is by no means
permanently fixed.
It was against this background of emerging possibilities for international justice
and domestically amid the final stages of the disintegration of the Khmer Rouge
that, in June 1997, the Cambodian government requested the United Nations to
provide assistance in finally holding accountable the top Khmer Rouge leaders
who had masterminded massive human rights violations some twenty years before.
It took six years of tense and fractious negotiations for Cambodia and the
United Nations to agree on what should be done and a further three years until in
July 2006 the judges of the Extraordinary Chambers in the Courts of Cambodia
(ECCC) were sworn in. This article reviews the causes for such a delay and the
judicial and non-judicial challenges faced by this institution.
1Kiernan 1996; Closing Order, Nuon Chea and others (002/19–09–2007/ECCC-D427),

Co-Investigating Judges, 15 September 2010.
2For interpretations of this extenuated process, see Fawthrop and Jarvis 2004; Scheffer 2012, at
341–405.
2 Trials and Tribulations: The Long Quest for Justice … 15
2.2 Background
2.2.1 The Long Process of Seeking Justice

for the Khmer Rouge Crimes
Within days of the ouster of the Khmer Rouge regime, evidence of systematic
crimes against humanity was uncovered. Two Vietnamese photographers stumbled
on S-21 or Tuol Sleng, the former high school in Phnom Penh, where more than
15,000 people were imprisoned and tortured before being executed on the out-
skirts of the city at Choeung Ek.3
Tuol Sleng became a museum of genocide, preserving not only the physical
remains of the horror that took place there but an extraordinary cache of documen-
tary evidence in the form of prisoner biographies and forced ‘confessions’, photo-
graphs (including of torture), execution lists and staff biographies, manuals and
notebooks.4 But Tuol Sleng was only one such site—mass graves and prisons have
been found in every province, showing that the same horror had been meted out
throughout the country in a widespread and systematic manner.5 Tuol Sleng and
other sites were shown to international journalists and visitors. Numerous survi-
vors’ accounts and journalists’ written and filmed reports gave a picture of what
had occurred, but unfortunately the international community paid scant attention
to human rights and issues of justice in the seventies and eighties.
In 1979 a 6–3 majority at the UN’s credentials committee accepted the DK
as the ‘legitimate representative of the Cambodian people,’ endorsed in the UN
General Assembly and thus preserving the seating of the toppled murderous
regime, unbelievably for more than a decade, even after their crimes were widely
known and documented.
The opposition to the new government in Cambodia, the People’s Republic of
Kampuchea (PRK) was ostensibly because Vietnam had invaded a smaller neigh-
bour (albeit to overthrow a murderous regime, and to respond to thousands of
unprovoked attacks on Vietnam’s territory and population). But similar outrage
and denial of United Nations recognition were not forthcoming in four other con-
temporary cases of external intervention (Uganda, when Idi Amin was overthrown
largely by Tanzanian forces in 1978–79; Central African Empire, by France in
1979; Grenada, by the United States in 1983 and Panama by the United States in
3Chandler 2000; Panh 2003.

4The photographic and documentary archives of Tuol Sleng Genocide Museum were inscribed
on UNESCO’s Memory of the World International Register in 2009. Details of the collection
are available at http://www.unesco.org/new/en/communication-and-information/flagship-project-
activities/memory-of-the-world/register/full-list-of-registered-heritage/registered-heritage-page-
8/tuol-sleng-genocide-museum-archives/#c188357 (visited 15 June 2015).
5The Documentation Centre of Cambodia, ‘Mapping Project: 1995-Present’, available at http://
www.d.dccam.org/Projects/Maps/Mapping.htm (visited 15 June 2015). From 1995 to 2004 Yale

University’s Cambodian Genocide Program and the Documentation Centre of Cambodia recorded
388 burial sites, 196 prisons and 81 memorials.
16 H. Jarvis
1989),6 not to mention East Timor (although its ‘integration’ into Indonesia was
never officially recognized by the United Nations, nothing was done to end it until
the people themselves forced a solution in 1999).
The Khmer Rouge continued to hold the Cambodian seat in the UN until 1991,
and the issue of their crimes was erased from the UN agenda for nearly two dec-
ades until the General Assembly formally recognized it for the first time.7
As it was struggling to rebuild the country from what was accurately described
as ‘Year Zero’, the fledgling government of the PRK invested significant scarce
resources to document the crimes committed by the Khmer Rouge, and to bring
international jurists and observers to Phnom Penh to participate in the People’s
Revolutionary Tribunal. They were convinced that once the world understood the
barbarities of life and death under the Khmer Rouge, the international community
could hardly fail to be more sympathetic to the new government in Phnom Penh.
The People’s Revolutionary Tribunal—the trial of the ‘Pol Pot – Ieng Sary
clique’ on the charge of genocide—was held in Phnom Penh August 1979.
Predictably, the defendants were convicted, but the expected moral and diplomatic
benefits did not flow to the PRK, and instead it was widely denounced internation-
ally for staging a ‘show trial’. Despite its undoubted weaknesses, the tribunal
should not have been merely dismissed as propaganda show. The witnesses called
by the prosecution provided crucial and authentic testimony against the Khmer
Rouge regime, which deserved to be scrutinized seriously by international jurists
and the outside world.8 Instead of being ostracized, DK continued to be given
international recognition, VIP hospitality and sanctuary and military rebuilding in
Thailand, in spite of genocide convictions for a crime that had been outlawed
under the Genocide Convention since 1948.9
In the late 1980s, as the Soviet Union collapsed, leading to a withdrawal of cru-
cial economic and political support for the PRK, and after a military and political
stalemate inside Cambodia left all sides weakened, in 1987 the first moves towards
peace talks were held. The PRK then announced a policy of national reconciliation
6Amer 1989, especially at 24–39.

7Infra ‘2.2. United Nations acknowledgment’.
8Fawthrop and Jarvis 2004, at 40–51.
9While widely termed genocide, both in common parlance and in academic, government and
even legal circles for the past 35 years, controversy still rages as to whether or to what extent
the Genocide Convention of 1948 applies. The Genocide Convention has generally been inter-
preted (at least until recent cases in Argentina and Bangladesh) as applying to acts committed
on one protected group by another group, and therefore, it has been argued, does not apply in
Cambodia’s case. The Group of Experts established by the Secretary-General of the UN in 1997,
while concluding that ‘evidence suggests the need for prosecutors to investigate the commission
of genocide against the Cham, Vietnamese and other minority groups, and the Buddhist monk-
hood’, took an agnostic position on genocide against the Khmer national group, stating that ‘any
tribunal will have to address this question should Khmer Rouge officials be charged with geno-
cide against [them]’. The charge of genocide against the Muslim Cham and Vietnamese is part
of the ECCC’s Case 002/02, the Initial Hearing of which took place on 30 July 2014. See also
M. Vianney-Liaud, Chap. 10 in this Volume.
with all parties except Pol Pot and the top Khmer Rouge leaders. This policy was
implemented through a series of unilateral actions—in 1988 an offer to accept
Sihanouk as head of state, and in 1989 a profound change of constitutional status
from the People’s Republic of Kampuchea to the State of Cambodia (flag, reli-
gion, economy etc.). Vietnam continued its unilateral withdrawal of its advisers
and troops, which had begun in small measure even as far back as 1982, with the
final contingent leaving Cambodia in September 1989.
Deadlock was reached in the negotiations on the future role of the Khmer
Rouge and the use of the term ‘genocide’ in describing Democratic Kampuchea.
After months of wrangling, Cambodian prime minister Hun Sen under enormous
international pressure finally abandoned all attempts to include references to the
genocide in the draft peace treaty.10
On 23 October 1991 the Paris Peace Agreements were signed, formally guaran-
teeing international political support for an arrangement that included the Khmer
Rouge as legitimate political actors and part of the Supreme National Council,
mandated to exercise sovereignty over Cambodia during a transitional period to
elections, during which time the United Nations would play a major political,
administrative and military role.11 Some 22,000 United Nations officials and sol-
diers arrived in Cambodia in an exercise that cost some US$3 billion and was the
first of what has become a continuing series of large-scale deployment of interna-
tional forces wearing blue berets.12
The Paris Peace Agreements laid the ground for what followed. In the name of
reconciliation, all references to genocide had been masked in euphemisms, such as
the agreement to the ‘non-return to the policies and practices of the recent past’.
The Khmer Rouge refused to implement a single one of the pledges it had
signed in Paris, and instead continued to terrorize and intimidate people in many
parts of the country, including perpetrating a number of atrocities against peo-
ple of ethnic Vietnamese origin. The long-standing anti-Vietnamese tone of the
Coalition Government of Democratic Kampuchea (its principal glue) was trans-
ferred into action within the borders of Cambodia itself.
After the 1993 elections, the Cambodian government launched a strategy to
break up the Khmer Rouge. Known as DIFID (Divide, Isolate, Finish, Integrate,
Develop), it involved military, political and economic tactics—military assaults,
outlawing the Khmer Rouge, wooing defectors and repeatedly raising the prospect
of justice being done through the setting up of a new tribunal. The Khmer Rouge
10Fawthrop and Jarvis 2004, at 70–107. In February 2015 Prime Minister Hun Sen expressed
his continuing anger at that pressure from the international community not to include the word
‘genocide’ in the Paris Peace Agreements in impromptu comments made during his opening key-
note address at the conference on “The Responsibility to Protect at 10: Progress, Challenges and
Opportunities in the Asia Pacific”, Sofitel, Phnom Penh, Cambodia 26–27 February 2015 (http://
cnv.org.kh/?p=4130).
11Agreement on a Comprehensive Political Settlement of the Cambodian Conflict, 23 October
1991, 31 International Legal Materials 183.

12Findlay 1995; Widyono 2008.
18 H. Jarvis
started fracturing and so did the coalition government. As almost their last com-
mon act, the Co-Prime Ministers (Hun Sen and Norodom Ranariddh) on 27 June
1997 signed a joint letter to UN Secretary-General Kofi Annan requesting interna-
tional assistance to bring the Khmer Rouge to trial.13
2.2.2 United Nations Acknowledgment
Finally, in February 1998, 19 years after the Khmer Rouge was overthrown, for
the first time a major organ of the United Nations acknowledged that massive
human rights violations had occurred in Cambodia during the Democratic
Kampuchea period of 1975–1979, when the General Assembly voted to accept the
report of its Third Committee, including a request for examination of the July
1997 letter signed jointly by the then Co-Prime Ministers Hun Sen and Norodom
Ranariddh requesting assistance in bringing the Khmer Rouge to justice.14
Following the formal adoption of the resolution by the General Assembly, the
Secretary-General established a Group of Experts to give an opinion as to whether
sufficient grounds existed for a trial, and to explore the advantages and disadvan-
tages of various types of tribunals, with different levels of international involve-
ment. The Group of Experts determined prima facie that both international and
national crimes of a serious nature had been committed; that evidence and wit-
nesses could be presented to support prosecution of these crimes; and that at least
some potential suspects survived and could be brought to trial. They then went on
to canvass various options—truth and reconciliation commission, international tri-
bunal or domestic trials.
The Group of Experts advocated an international tribunal such as those already
in operation for Rwanda and the former Yugoslavia, dismissing both a domestic
process and even the novel concept of a mixed tribunal, on the grounds of distrust
13See Report of the Group of Experts for Cambodia established pursuant to General Assembly
Resolution 52/135, UN Doc. A/53/850-S/1999/231, 16 March 1999 (hereafter Report of the
Group of Experts), § 5.
14GA Res. 52/135, 27 February 1998 on the report of the Third Committee, Add. 2 on the
Situation of Human Rights in Cambodia, refers in its preamble to ‘international crimes, such
as acts of genocide and crimes against humanity’ (A/52/644/Add.2). It was adopted by the
Third Committee on 12 December 1997 and by the General Assembly on 27 February 1998.
§ 15 ‘Endorses the comments of the Special Representative that the most serious human rights
violations in Cambodia in recent history have been committed by the Khmer Rouge and that their
crimes, including the taking and killing of hostages, have continued to the present, and notes
with concern that no Khmer Rouge leader has been brought to account for his crimes’; and §16.
‘Requests the Secretary-General to examine the request by the Cambodian authorities for assis-
tance in responding to past serious violations of Cambodian and international law, including the
possibility of the appointment, by the Secretary-General, of a group of experts to evaluate the
existing evidence and propose further measures, as a means of bringing about national reconcilia-
tion, strengthening democracy and addressing the issue of individual accountability’.
of the Cambodian legal system. They went even further, insisting even that the tri-
bunal be located outside Cambodia.15 In Cambodia and in the court of interna-
tional opinion these options were argued, not only during the time that the Group
of Experts were preparing their report, but for long afterwards, right up until the
establishment of the Khmer Rouge tribunal and even throughout its lifetime, with
many critics claiming that the model proposed by the Group of Experts, or perhaps
a truth and reconciliation commission, or even no formal process at all, would
have been better for Cambodia than the model eventually adopted—a domestic
court with international participation and assistance.
Vigorous debates continued and many NGOs maintained that national recon-
ciliation and healing of psychological damage would be better served without the
judicial process, while others maintained the view articulated in the slogan ‘No
peace without justice’.
In any event, the Group of Experts’ recommendation for an international tribu-
nal met with a sharp rejection from the Cambodian government, which reiterated
its request for international assistance for and involvement in a Cambodian domes-
tic process.16
2.2.3 The End of the Khmer Rouge
Running parallel to these discussions between the Cambodian government and the
UN on the nature of a future trial was the culmination of Hun Sen’s DIFID strat-
egy and the ending of the Khmer Rouge as a political and military organization.
The first major break came in August 1996 when Ieng Sary, former foreign minis-
ter of Pol Pot, and several thousand Khmer Rouge soldiers defected to the govern-
ment. He was granted a royal amnesty protecting him against prosecution under
the 1994 law outlawing the Khmer Rouge, and a pardon for the sentence imposed
in his 1979 conviction for genocide. He was also allowed to retain de facto control
over the area around his former base in Pailin, which was accorded provincial sta-
tus, with his son as deputy governor. This reduced the Khmer Rouge insurgency to
one major zone around Anlong Veng, the main base and headquarters of Ta Mok,
Pol Pot’s military chief.
The Khmer Rouge split fatally, with Ta Mok arresting Pol Pot, who died on 15
April 1998 in suspicious circumstances. In a dramatic breakthrough, the Khmer
Rouge was virtually brought to an end as a political and military force in the clos-
ing days of 1998 leaving only the rump military force of Ta Mok still at large,
when Hun Sen undertook a complicated manoeuvre on 25 December 1998, bring-
ing in from the cold the two remaining Khmer Rouge senior leaders, Nuon Chea
and Khieu Samphan.
15Report of the Group of Experts, supra note 13.

16Fawthrop and Jarvis 2004, at 113–133 and Scheffer 2012, at 381–385.
20 H. Jarvis
Then on 6 March 1999, Ta Mok was taken into military custody and charged
under the 1994 law banning the Khmer Rouge and, on 9 May 1999, Kaing Guek
Eav, better known as Duch, the former commandant of the Tuol Sleng prison S-21,
was arrested and charged under the same law, following public disclosure of his
whereabouts and new identity as a born-again Christian NGO worker. After two
decades of many countries obstructing efforts to bring the Khmer Rouge to justice,
the tide was decisively turning towards the setting up of a tribunal.17
2.2.4 The Law and Agreement on Establishment

of the ECCC
In August 1999 the United Nations sent a high-level delegation from its Office of
Legal Affairs to embark on formal negotiations with the Cambodian government,
which had established its own Task Force as a counterpart, led throughout by Sok
An, Deputy Prime Minister and Minister in charge of the Office of the Council of
Ministers. On 2 January 2001, just before the twenty-second anniversary of the
ousting of the Khmer Rouge from Phnom Penh, the National Assembly unani-
mously approved a draft law to establish extraordinary chambers in the courts of
Cambodia to bring to trial senior leaders of Democratic Kampuchea and those
responsible for serious violations of Cambodian criminal law and international law
and custom, and international conventions recognized by Cambodia, and which
were committed during the period from 17 April 1975 to 6 January 1979.
Unfortunately, continuing differences between the UN and the Cambodian govern-
ment escalated, with the UN formally withdrawing from the process on 8 February
2002 on the grounds that: ‘the United Nations has concluded that as currently envis-
aged, the Cambodian court would not guarantee independence, impartiality and objec-
tivity’; and because of differences in views on the relationship between the ECCC
Law and the agreement to be signed governing of assistance from the UN for such a
court. After almost a year of diplomatic effort by the Cambodian government, the UN
Secretariat was instructed to resume negotiations by a General Assembly resolution,
passed by its Third Committee on 18 December 2002.18
The Agreement was finally signed on 6 June 2003, laying down the modalities
of international participation,19 but a further two and a half years were lost before
it could be ratified, due to domestic political turmoil in Cambodia following the
mid-2003 elections, followed by a slow process to seek the funds made necessary

18GA Res. 57/228, 27 February 2003 on the report of the Third Committee (A/57/556/Add.2 and
Corr.1-3).
19Available at http://www.eccc.gov.kh/en/documents/legal/agreement-between-united-nations-and-
royal-government-cambodia-concerning-prosecution (visited 15 June 2015).

by the General Assembly’s decision that the ECCC should be funded solely
through voluntary rather than assessed contributions by Member States as with the
International Criminal Tribunals for the Former Yugoslavia and Rwanda.20
Legal history was made as the ECCC opened its doors in February 2006 in
Phnom Penh, Cambodia’s capital. The ‘Cambodian Model’ was the first attempt
to mix international and national expertise and jurisprudence in trial proceedings
conducted in the domestic courts, largely under domestic procedural law.
When the ECCC did finally became a reality in early 2006 it was a fragile
and shaky reed, with the odds still stacked firmly against it. External and internal
forces seem always to loom over the Court, at times threatening its very survival,
while its challenges were manifold—financial, administrative, legal, cultural,
political—with the ticking of the clock being the biggest threat of all.
The story of the ECCC is how it has faced up to these constant and unremitting
challenges, and the stark contrast between the Court’s actual achievements and the
way in which it is continually portrayed as a failure in reports in the press and by
the bevy of monitors and observers who have scrutinized its every step.
2.3 Key Features of the Extraordinary Chambers

in the Courts of Cambodia
2.3.1 Jurisdiction
The Cambodian law promulgated on 27 October 2004 establishing the ECCC had
as its purpose ‘to bring 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 conven-
tions recognized by Cambodia, that were committed during the period from 17
April 1975 to 6 January 1979’.21
The ECCC’s subject matter jurisdiction is limited to:
• the following offences under Cambodia’s 1956 Penal Code:
– Homicide (Articles 501, 503, 504, 505, 506, 507 and 508)
– Torture (Article 500)
– Religious Persecution (Articles 209 and 210)
• the crime of genocide as defined in the Convention on the Prevention and
Punishment of the Crime of Genocide of 1948
20GARes. 57/228B, 22 May 2003 on the report of the Third Committee (A/57/806).
21Article
1 ECCC Law (emphasis added). The details of the structure and procedures of the
ECCC in the following paragraphs are also taken from the ECCC Law.
22 H. Jarvis
• crimes against humanity

• grave breaches of the Geneva Conventions of 12 August 1949
• destruction of cultural property during armed conflict pursuant to The Hague
Convention of 195422
• crimes against internationally protected persons pursuant to the Vienna
Convention of 1961.23
Article 29 of the ECCC Law stipulates that
any Suspect who planned, instigated, ordered, aided and abetted, or committed the crimes
shall be individually responsible for the crime, regardless of [their] position or rank.…
The fact that any of the acts were committed by a subordinate does not relieve the supe-
rior of personal criminal responsibility if the superior had effective command and con-
trol 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…. The fact that a Suspect acted pursuant to an order of the Government of
Democratic Kampuchea or of a superior shall not relieve the Suspect of individual crimi-
nal responsibility.
2.3.2 Structure
The Law established Extraordinary Chambers within the existing court structure
consisting of three judicial chambers:
• Pre-Trial Chamber (three Cambodian and two international judges)
• Trial Chamber (three Cambodian and two international judges)
• Supreme Court Chamber (four Cambodian and three international judges)
The ECCC has two Co-Prosecutors (one national and one international) and like-
wise two Co-Investigating Judges.
All these judicial officers are appointed by Cambodia’s Supreme Council of the
Magistracy, which selects the international judges and co-prosecutor from nomi-
nees submitted by the Secretary-General of the UN.
Article 46 new of the ECCC Law lays out a series of steps that may be taken
by the Supreme Council of the Magistracy ‘in the event any foreign judges or for-
eign investigating judges or foreign prosecutors fail or refuse to participate in the
Extraordinary Chambers’. Firstly, the Council may appoint other judges or inves-
tigating judges or prosecutors to fill any vacancies from the nominees provided
by the UN; then from candidates recommended by the Governments of Member
States of the United Nations or from among other foreign legal personalities; and
finally it stipulates that, if
following such procedures, there are still no foreign judges or foreign investigating judges
or foreign prosecutors participating in the work of the Extraordinary Chambers and no
22It should be noted that no indictments have been made relating to this offence.
23It should be noted that no indictments have been made relating to this offence.
foreign candidates have been identified to occupy the vacant positions, then the Supreme
Council of the Magistracy may choose replacement Cambodian judges, investigating
judges or prosecutors.
Article 47 of the ECCC Law stipulates that the ECCC ‘shall automatically dis-
solve following the definitive conclusion of these proceedings’.
2.3.3 Decisions
The judges and co-prosecutors are mandated to try to seek unanimity in their deci-
sions. While national judges are in the majority in each Chamber, a super-majority
is required for any decisions to investigate, try or convict (four of five judges in the
Trial Chambers, and five of seven in the Supreme Court Chamber).24 This super-
majority formula ensures that no such decisions can be made without the partici-
pation of at least one national and one international judge.
In the case of a disagreement being recorded between the two Co-Prosecutors
or the two Co-Investigating Judges, the matter may be brought to the Pre-Trial
Chamber for adjudication. Should the Pre-Trial Chamber fail to reach a super-
majority, then any proposed prosecution, investigation or indictment would pro-
ceed.25 In this way, neither the national nor international co-prosecutor or
co-investigating judge acting individually can block the process.
2.3.4 Penalties, Amnesties and Pardons
Sentences may be from five years to life imprisonment, and property gained
unlawfully or by criminal conduct may be ordered to be confiscated and returned
to the State.26
One issue that was hotly debated during the negotiations between the Royal
Government of Cambodia and the UN was that of amnesties or pardons. Finally,
agreement was reached on the following wording:
The Royal Government of Cambodia shall not request an amnesty or pardon for any per-
sons who may be investigated for or convicted of crimes referred to in Articles 3, 4, 5, 6, 7
and 8 of this Law. The scope of any amnesty or pardon that may have been granted prior
to the enactment of this Law is a matter to be decided by the Extraordinary Chambers.27
24Article 14 new ECCC Law.

25Articles 20 new and 23 ECCC Law.
26Article 39 ECCC Law.
24 H. Jarvis
2.3.5 Procedure
Article 33 new of the ECCC Law states that its proceedings shall be conducted
according to Cambodian current procedural law, but that if ‘these existing proce-
dure do not deal with a particular matter, or if there is uncertainty regarding their
interpretation or application or if there is a question regarding their consistency
with international standard, guidance may be sought in procedural rules estab-
lished at the international level’. It goes on to stipulate that the ECCC proceed-
ings ‘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’.
2.3.6 Administration and Expenses
Unlike the international and other internationalized courts, no provision was made
for the ECCC to have a Registrar. Instead, the Law stipulated that there should be
a Cambodian Director of Administration and an international Deputy Director of
Administration.28
The Law divided the responsibilities of the Royal Government of Cambodia
(RGC) and the United Nations with regard to financing the establishment and
operations of the ECCC.29 Applying and interpreting these obligations proved to
be quite problematic, as discussed below concerning the Agreement and financial
problems.
2.3.7 The Agreement Between the Royal Government

of Cambodia and the United Nations
The Agreement recognizes that the Extraordinary Chambers have subject matter
and personal jurisdiction consistent with that set forth in the Law. It stipulates that
the Vienna Convention on the Law of Treaties, and in particular its Articles 26 and
27, applies. It went on to repeat and at times to expand on certain provisions in the
Law, in particular procedures governing nomination, appointment and privileges
and immunities of international judicial officials and the Deputy Director of the
Office of Administration; rights of the Accused and financial and other obligations
of the Royal Government of Cambodia and the UN. It did not include the provi-
sions in Article 46 of the Law on filling any vacancies of international judges.

The Agreement added a new article on the withdrawal of cooperation (Article 28)
stating
Should the Royal Government of Cambodia change the structure or organization of the
Extraordinary Chambers or otherwise cause them to function in a manner that does not
conform with the terms of the present Agreement, the United Nations reserves the right
to cease to provide assistance, financial or otherwise, pursuant to the present Agreement.
Another element in the Agreement that did not appear in the ECCC Law, show-
ing the concern of the United Nations on this point, was the following addition to
stipulations on amnesty:
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.30
2.4 Judicial Challenges
The ECCC is generally referred to as a ‘mixed’ or ‘hybrid’ court. In introducing

the Ratification of the Agreement to the National Assembly on 4 and 5 October
2004, Deputy Prime Minister Sok An referred to it as ‘a national court with inter-
national characteristics’, and judicial decisions have subsequently confirmed this
character. The Pre-Trial Chamber found that:
The ECCC is distinct from other Cambodian courts in a number of respects. […] The
ECCC is entirely self-contained, from the commencement of an investigation through to
the determination of appeals. There is no right to have any decision of the ECCC reviewed
by courts outside its structure, and equally there is no right for any of its Chambers to
review decisions from courts outside the ECCC. […] For all practical and legal purposes,
the ECCC is, and operates as, an independent entity within the Cambodian court structure
[…] which makes the ECCC a ‘special internationalized tribunal’[…].31
The Trial Chamber also found that the ECCC is a ‘separately constituted, inde-
pendent and internationalized court’ which, despite having been ‘established within
the existing Cambodian court structure,’ qualifies as ‘an independent entity’32 and
the Supreme Court Chamber confirmed this, seeing ‘no reason to depart from these
uncontested findings of fact’.33
30Article11 ECCC Agreement.

31Decision on Appeal Against Provisional Detention of Kaing Guek Eav (Duch), Kaing Guek
Eav (Duch) (001/18-07-2007/ECCC-C5/45), Pre-Trial Chamber, 3 December 2007, §§ 18–19.
32Decision on Request for Release, Kaing Guek Eav (Duch) (001/18-7-2007/ECCC-E39/5), Trial
Chamber, 15 June 2009, § 10.

33Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F28), Supreme Court Chamber,
3 February 2012 (hereafter Duch Appeal Judgment), § 393.

26 H. Jarvis
This structure makes the ECCC quite distinct from the ICC or the ICTY and
ICTR, although the extent to which it differed made for frequent legal argument
between the Defence teams and the Co-Prosecutors or Co-Investigating Judges as
to how much of the jurisprudence from such courts should apply.
As with all new, and especially so-called special or extraordinary courts or
jurisdictions, the ECCC has had to face many challenging procedural and substan-
tial legal issues, some of which are detailed below.
2.4.1 Qualification of Crimes Prosecuted
The Introductory Submission filed by the Co-Prosecutors on 18 July 2007 opened

a judicial investigation against five suspects, namely Kaing Guek Eav known as
Duch, Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith. A case was made
for indictment of all of the five Suspects on crimes qualified under four headings:
the national crimes of torture and murder; crimes against humanity; genocide; and
grave breaches of the Geneva Conventions of 1949.34
In September 2007, the Co-Investigating Judges ordered the separation of the
case-file into two.35 Case 001 was restricted to a single crime site (S-21 and its ancil-
lary units) and a single defendant (Duch), who was indicted initially for crimes
against humanity and grave breaches of the Geneva Conventions of 1949, and then,
on appeal by the Co-Prosecutors, also for the national crimes of torture and premedi-
tated murder. After 77 trial days, held between 17 February 2008 and 27 November
2009, the Trial Chamber judgment was issued on 26 July 201036 and the final judg-
ment by the Supreme Court Chamber was issued on February 2012, affirming his
conviction for crimes against humanity and grave breaches of the Geneva
Conventions of 1949, and sentencing him to life imprisonment. The Supreme Court
Chamber also entered separate convictions for the crimes against humanity of perse-
cution (encompassing murder), enslavement, torture and other inhumane acts.37
2.4.2 National Crimes
Ironically, although the Cambodian negotiators had argued hard for national sub-
stantive law to be included in the jurisdiction of the ECCC, this proved to be the
most difficult to apply, as the Defence vigorously challenged the statute of
34First Introductory Submission, (ECCC-D3), Co-Prosecutors, 18 July 2007; see also the public
statement of the Co-Prosecutors, 18 July 2007.

35Separation Order, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-D18), Co-Investigating
Judges, 19 September 2007.

36Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July
2010.
37Duch Appeal Judgment, supra note 33.
limitations (also known, especially in civil law systems, as prescription), affecting

the validity of the 1956 Criminal Code during 1975–1979 and its applicability
today to offences committed during 1975–1979). The Trial Chamber judges failed
to agree or even reach a super-majority, thereby preventing the ECCC from trying
the accused for national crimes,38 and Duch was convicted only for international
crimes. In Case 002, the Accused were not indicted for national crimes, as the
Co-Investigating Judges explained: ‘Given the multiple legal problems arising
from the charges brought based on national criminal legislation, the
Co-Investigating Judges deemed it preferable to accord such acts the highest legal
classification, namely crimes against humanity or grave breaches of the Geneva
Conventions of 12 August 1949.’39
2.4.3 Genocide
In a great disappointment for many victims, for the prosecution and for all those
who had since 1979 used the term ‘genocide’ to refer collectively to the crimes
of the KR regime, the ECCC adopted a narrow interpretation of the Genocide
Convention, and by mid-2015, even this narrow interpretation was yet to be heard
by the Trial Chamber.
The Closing Order in Case 002 indicted the other four Suspects with crimes
against humanity, grave breaches of the Geneva Conventions of 1949 and genocide
(but only against the Cham and Vietnamese minorities). The Co-Prosecutors acted
conservatively, not taking up the challenge suggested by the UN Group of Experts in
1998 to test whether mass crimes against the Khmer majority national group could be
qualified as genocide.40 In this regard, despite a submission by Civil Party
38Decision on the Defence Preliminary Objection Concerning the Statute of limitations of
Domestic Crimes, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E187), Trial Chamber, 26

July 2010.
39Closing Order, supra note 1. On appeal, the Pre-Trial Chamber ordered that the Closing Order
be amended with a specification for the requirement of the existence of a link between the under-
lying acts of crimes against humanity and an armed conflict, and that rape could charged not as
a separate crime, but considered as ‘other inhumane acts’ within the legal definition of crimes
against humanity, see Decision on Ieng Sary’s Appeal against the Closing Order, Nuon Chea and
others (002/19-09-2007/ECCC-D427/1/26), Pre-Trial Chamber, 13 January 2011.
40Report of the Group of Experts, supra note 11, § 65, stating: ‘As for atrocities committed
against the general Cambodian population, some commentators have asserted that the Khmer
Rouge committed genocide against the Khmer national group, intending to destroy a part of
it. The Khmer people of Cambodia do constitute a national group within the meaning of the
Convention. However, whether the Khmer Rouge committed genocide with respect to part of
the Khmer national group turns on complex interpretive issues, especially concerning the Khmer
Rouge’s intent with respect to its non-minority-group victims. The Group does not take a position
on this issue, but believes that any tribunal will have to address this question should Khmer Rouge
officials be charged with genocide against the Khmer national group.’ See also supra note 9.
28 H. Jarvis
lawyers to the Co-Investigating Judges to appoint an expert to examine the facts and
to establish whether the charge of genocide against the Khmer national group is justi-
fiable, no judicial officer or Chamber of the ECCC has made judicial advances on this
question, such as in other national jurisdictions, notably Argentina and Bangladesh.41
The Co-Investigating Judges also rejected a request initially filed by Civil
Parties and then supported by the Co-Prosecutors to expand the scope of the
charge of genocide against Vietnamese to include acts committed in places other
than the limited border areas included in their original investigation and also to
include charges of crimes against humanity and genocide against the Khmer Krom
minority. The rejection was justified in terms of procedural irregularity in the form
in which the Co-Prosecutors filed their request.42
When Case 002 finally commenced trial on 21 November 2011, the Opening
Statements covered all the charges made in the amended Closing Order, but the
Trial Chamber judges had already made a significant severance decision that put
the charge of genocide onto the back burner.
2.4.4 Scope of the Trials
On 22 September 2011 the Trial Chamber announced that, in order to speed up

proceedings, Case 002 would be severed into five parts in chronological sequence,
to be tried and adjudicated with the judgment on each trial to be issued in turn.
The first trial (Case 002/01) would deal only with the first and second forced
movements of population and the related charges of crimes against humanity,
although it also considered the roles of the Accused in the Democratic Kampuchea
regime, including the establishment and implementation of the regime’s policies
relevant to the charges set out in the Closing Order. The Trial Chamber justified
their decision to select these acts for the first phase of the trial on the grounds that
they affected the great majority of Cambodians and of the Civil Parties in Case
002. All parties appealed this decision. The Co-Prosecutors argued vigorously that
the advanced age and infirmity of the Accused meant that this first phase may turn
out to be the only trial held, and therefore it must be more representative of the
totality of crimes charged.
Later the Trial Chamber did decide to add the execution of Khmer Republic
soldiers at the Tuol Po Chrey execution site immediately after the Khmer Rouge
416th request for investigative actions concerning the charge of Genocide against the Khmer
nationals, Nuon Chea and others (002/19-09-2007/ECCC-D349), Civil Party Lawyers, 10
February 2010. For Argentina, see Ferreira 2013, at 5–19; Feierstein 2012, 2014. In Bangladesh,
the International Crimes Tribunals are currently considering such qualification of crimes.
42Combined Order on Co-Prosecutors’ Two Requests for Investigative Action Regarding
Khmer Krom and Mass Executions in Bakan District (Pursat) and Civil Parties Request For
Supplementary Investigations Regarding Genocide of the Khmer Krom & the Vietnamese, Nuon
Chea and others (002/19-09-2007/ECCC-D250/3/3), Co-Investigating Judges, 13 January 2010.
takeover in 1975, but the Co-Prosecutors appealed this to the Supreme Court
Chamber, which issued two decisions sharply criticising the Trial Chamber’s
approach to severance but, in view of the late stage in Case 002/01, considered
that an order to expand the scope would inevitably cause further delays, and
instead ordered that the evidentiary hearings in Case 002/02 shall commence as
soon as possible after closing submissions in Case 002/01, and that Case 002/02
shall comprise at minimum the charges related to S-21, a worksite, a cooperative,
and genocide. Further, it proposed that the Trial Chamber consider the establish-
ment of a second panel of judges into hear Case 002/02 in order to speed up
proceedings—a suggestion that was rejected by the Trial Chamber.43
The hearing of evidence in case 002/01 ended on 23 July 2013, after 212 trial
days, and the closing statements concluded on 31 October 2013. The Trial
Chamber’s first-instance judgment was issued on 7 August 2014, convicting both
Accused of crimes against humanity and sentencing both to life imprisonment.44
Several other hotly debated legal issues in the opening phase of Case
002/01will not be adjudicated due to the death of Ieng Sary on 14 March 2013 and
the consequential dropping by the Co-Prosecutors of all charges against him.
These include the validity of Ieng Sary’s conviction for genocide in 1979 (raising
issues of double jeopardy or ne bis in idem); and the validity and scope of Ieng
Sary’s 1996 pardon for the sentence awarded for that 1979 conviction. However,
certain other of Ieng Sary’s legal challenges were subsequently pursued by the
remaining two Accused who maintained Ieng Sary’s preliminary objection to the
applicability of the grave breaches provisions of the Geneva Conventions, and
Khieu Samphan further maintained the preliminary objection to the Chamber’s
jurisdiction to hear charges of deportation as a crime against humanity.45
In November 2008, the international Co-Prosecutor prepared to file two Introductory
Submissions, requesting the Co-Investigating Judges to initiate investigation of six
additional suspected persons (two of whom have since died) for crimes allegedly
committed at a number of new crime sites. The proposed investigations (which became
Cases 003 and 004) were opposed by the national Co-Prosecutor, who viewed them as
unnecessary, as the alleged crimes are already covered by the first Introductory
Submission of 2007. Further, she opined that prosecuting these suspects is beyond the
43Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chamber’s Decision Concerning
the Scope of Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E163/5/1/13), Supreme
Court Chamber, 8 February 2013; Decision on Immediate Appeals of the Trial Chamber’s Second
Decision on Severance of Case 002, Nuon Chea and others (002/19-09-2007/ECCC-E284/417),
Supreme Court Chamber, 23 July 2013; Trial Chamber Memo to the Director of Administration,
Nuon Chea and others, (002/19-09-2007-ECCC-E301/4), Trial Chamber, 20 December 2013.
44Judgment, Nuon Chea and others (002/19-09-2007/ECC-E313), Trial Chamber, 7 August 2014.
45Position on Remaining Preliminary Objections raised by the Ieng Sary Defence Team, Nuon
Chea and others (002/19-09-2007/ECCC-E306/1), Defence, 20 May 2014, and Conclusions de

la Defense de M. Khieu Samphan sur les exceptions preliminaires sur lesquelles la Chambre n’a
pas encore statue, Nuon Chea and others (002/19-09-2007/ECCC-E306/2), Defence, 20 May
2014.
30 H. Jarvis
limits of personal jurisdiction of the court to senior leaders and those most responsible;
that it potentially threatens national reconciliation and the political stability of the coun-
try; and that the resource requirements would put at risk the functioning of the court and
the successful completion of cases already under way.46
The Prime Minister and other ministers in the Cambodian government have also
not supported extending the work of the ECCC beyond Cases 001 and 002.47
A super-majority was not assembled in the Pre-Trial Chamber on the disagreement
between the two Co-Prosecutors,48 and so the investigations have gone forward,
albeit slowly, without the participation of the national Co-Investigating Judge, and
have been pursued by a series of international Co-Investigating Judges in somewhat
controversial circumstances. It is now understood that the latest international
Co-Investigating Judge expects to close the investigations by mid-2015 and to issue
a Closing Order either dismissing them or sending them to trial by the end of 2015.
The identity of the suspects in Cases 003 and 004 was for some time officially confi-
dential, although they were widely reported in the press. This changed when the
International Co-Investigating Judge, Mark Harmon, on 3 March 2015 announced
that he had charged two persons in absentia (Meas Muth in Case 003 and Im Chaem
in Case 004), and then on 27 March also Ao An (Case 004), this time in person.49 As
of the end of May 2015, none of these three persons had been indicted or arrested.
2.4.5 Legal and Administrative Framework for Victim

Participation
The ECCC had to develop a modus operandi for incorporating into the judicial
process the massive number of victims of the Khmer Rouge crimes, especially
those who sought to become recognized as Civil Parties.
46International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pur-
suant to Internal Rule 71(2), (Pre-Trial Chamber Disagreement No. 001/18-11-2007/ECCC),

International Co-Prosecutor, 3 December 2008; National Co-Prosecutor’s Response to the
International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant
to Internal Rule 71(2), (Pre-Trial Chamber Disagreement No. 001/18-11-2007/ECCC), National
Co-Prosecutor, 29 December 2008, (publicly redacted versions).
47C. Sokha and J. O’Toole, ‘Hun Sen to Ban Ki-moon: Case 002 last trial at ECCC’, Phnom
Penh Post (27 October 2010), citing a briefing to the press by Foreign Minister Hor Namhong on
the meeting between Prime Minister Hun Sen and Secretary-General Ban Ki-moon and a state-
ment by the Minister for Information, Khieu Kanharith: ‘The purpose of forming the court was
to seek justice for victims and guarantee peace and stability in society. […] If the court walks
farther than that, it will fall.’
48Considerations of the Pre-Trial Chamber on the Disagreement between the Co-Prosecutors
pursuant to Internal Rule 71 (publicly redacted version), (Disagreement No. 001/18-11-2008/

ECCC), Pre-Trial Chamber, 18 August 2009.
49Statements by the ECCC International Co-Investigating Judge, 3 and 27 March 2015
(http://www.eccc.gov.kh/en/articles).
Victim participation at the ECCC has not been without controversy, rising at
times to heated argument and even bitter conflict. The roles and rights of Civil
Parties and the level of support extended to them have proved to be among the
most difficult and ongoing problems the court has had to face as it grappled with
the realities and emotions of this sensitive issue.
Administratively, the ECCC was completely unprepared for any role of Civil
Parties—one of the clearest instances in which the United Nations’ Technical
Assessment Mission simply applied the formulas from the ad hoc tribunals of the
ICTY and ICTR and the Sierra Leone Special Court without regard to the very dif-
ferent legal and judicial context of Cambodia. Neither the budget nor staffing
tables for the ECCC included any provision for Civil Parties. The first UN Deputy
Director of Administration (who had previously served in the ICTR) expressed
this approach clearly when she stated at the first press conference held in the new
premises of the Court that ‘the only role for victims in the ECCC would be as
witnesses’.50
However, as mentioned above, the foundation documents for the ECCC stipu-
late that the Court shall utilize Cambodian criminal procedure, except in certain
circumstances when it is silent, internally contradictory, or when it conflicts with
international standards.51 And Cambodian criminal procedure includes the right
for victims to participate as Civil Parties in criminal proceedings. Further, while
neither the ECCC Law nor the ECCC Agreement made specific mention of the
role of Civil Parties, the Law did envisage victims as Parties to the cases when
Article 36 new of the ECCC Law stipulated the rights of victims to appeal deci-
sions of the Trial Chamber.
In its preparatory work for the establishment of the Court, the Cambodian
Government Task Force anticipated that one of the areas requiring early decision
would be how to apply Cambodian procedure allowing victims’ participation and
claims for reparations in circumstances in which millions of people were victims
of the crimes being tried.52
However, judges from common law systems (who constituted the major-
ity of international judges) were adamant that full victim participation as Civil
Parties would place an impossible burden on the court in terms of finances and
50M. Lee, Deputy Director of Administration in ECCC Press Conference, 9 February 2006 (as
noted by the author, then ECCC Chief of Public Affairs).

51Article 33 new ECCC Law; Article 12(1) ECCC Agreement.
52A ‘Draft Internal Procedures and Regulations’, developed by Dr Gregory Stanton for and
with the Cambodian Government Task Force for the Khmer Rouge Trials, was presented to the
Judicial Strategic Planning and Development Workshop held in early July 2006. This draft made
provisions for victims to apply to participate in the hearings (Article 89), to appoint legal rep-
resentatives, even envisaging the probable need for common legal representation for groups of
victims and for legal assistance for representation (Article 90) and to claim reparations, includ-
ing remedies such as restitution, compensation and rehabilitation (Article 94). See also An
Introduction to the Khmer Rouge Trials (Phnom Penh: Secretariat for the Task Force for the
Khmer Rouge Trials, 2004).
32 H. Jarvis
time. Judges from civil law systems, who were used to Civil Parties even in mass
crimes, were equally adamant that the ECCC had to accommodate Civil Parties,
as it had no power to limit rights that are clearly and unambiguously provided
under Cambodian criminal procedure, so it seemed inevitable that some compro-
mise would emerge, providing a limited form of victim participation and claims
for reparations.
After intense debate in many meetings of the Rules Committee, and as one of
the very final matters in the Internal Rules to be resolved, the Plenary Session in
June 2007 adopted a severely limited right to reparations: ‘the Chambers may
award only collective and moral reparations to Civil Parties. These shall be
awarded against, and be borne by convicted persons…. Such awards may take the
following forms: (a) An order to publish the judgment in any appropriate news or
other media at the convicted person’s expense; (b) An order to fund any non-profit
activity or service that is intended for the benefit of Victims; or (c) Other appropri-
ate and comparable forms of reparation.’53
Severe public criticism and disappointment among victims of these very limited
provisions, and their even narrower interpretation by the judges of the Trial
Chamber in Case 001 (in which the only reparation awarded was an order to pub-
lish copies of Duch’s acknowledgments and apologies stated in court, alongside
the listing of the names of Civil Parties in the judgment54), led to their expansion.
By the time of Case 002, funding from third parties could be accepted towards
reparations55 and the ECCC’s Victims Support Section was also instructed to
examine other, non-judicial programmes and measures to support victims.56
The Office of Administration responded to the adoption of the Internal Rules
by establishing a small Victims Unit (later known as the Victims Support Section).
However, with such a late start, and with woefully inadequate funds, the Victims
Unit was very quickly overwhelmed as the enormity of its task became evident.
How to reach the unknown number of victims throughout the country, inform
them of their rights to participate and encourage the filing of complaints and civil
party applications was a major challenge. A working relationship was quickly
developed between the Victims Unit and a number of NGOs that had already
established or were ready to establish programmes relating to Khmer Rouge vic-
tims, known as intermediary organizations.
While in its first year the Victims Unit was allocated no resources specifically
for outreach, such funding was already flowing to the intermediary organiza-
tions from a number of donors (notably the German and French governments, the
European Union and the Open Society Justice Initiative, OSJI). And in early 2009
53Rule 23(12) ECCC Internal Rules, adopted 7 June 2007.

54Judgment, Kaing Guek Eav alias Duch, supra note 36, § 682–683.
55Rule 23quinquies ECCC Internal Rules (Rev. 6), adopted on 9 February 2009 and amended on
17 September 2010.
56Rule 12bis(3) ECCC Internal Rules (Rev.6), adopted on 9 February 2009 and amended on
17 September 2010.
the German Government made a significant direct grant to the Victims Unit, fund-
ing that was renewed through 2015.
Forums were held throughout the country, and teams assisted victims in com-
pleting the somewhat complex form the ECCC had developed for them to file
a complaint and to apply for status as a Civil Party. As a result of the fact that
Case 001 was limited to crimes relating to a single crime site (the security cen-
tre of S-21 and its ancillary units) and because the procedural decisions govern-
ing Civil Party participation were not made until almost the time of the filing of
the Closing Order, a relatively small number of victims applied before the dead-
line—94, of whom 90 participated and 76 were finally recognized by the Supreme
Court Chamber. In Case 002, the Victims Unit and the NGOs made a strong
and concerted outreach effort, and 3,988 victims applied. The Co-Investigating
Judges recognized only some 50 % of these Civil Party applicants for Case 002,
but on appeal 3,867 Civil Parties, close to 100 % of those who had applied, were
recognized.
Even after adoption of Internal Rules allowing for Civil Party participation, the
ECCC did not initially provide any financial support for legal representation for
Civil Parties. This contrasted sharply to the Defence, which was generously sup-
ported from the international side of the budget, on the basis of the Law and
Agreement provisions for legal support for any Accused deemed to be unable to
afford their own lawyers.57 All five Accused in Cases 001 and 002 were provided
with legal teams funded through a legal aid fund administered through the
Defence Support Section. No such support from the Court was offered for Civil
Parties. Offers of legal pro bono representation were made by lawyers, mostly
funded from foreign governments through the intermediary organizations. Legal
teams emerged, not on the basis of inherent or identified differentiation of interest
among groups of Civil Party applicants, but rather from their relationship to the
intermediary organizations that had facilitated the collection of their applications
for Civil Party status. It soon became painfully obvious that such a haphazard
basis for Civil Party legal representation could not be continued in Case 002, a
much more complex case in every way, and in which thousands of Civil Parties
would be participating.
Following lengthy debate, the Internal Rules were extensively revised regarding
the legal representation of Civil Parties at the ECCC, providing that Civil Parties
at the trial stage and beyond shall comprise a single, consolidated group, whose interests
are represented by the Civil Party Lead Co-Lawyers[…]. Civil Party Lead Co-Lawyers
shall file a single claim for collective and moral reparations.58
This novel approach went into operation in Case 002 and certainly formed a
more coherent framework for Civil Party legal representation in Case 002/01, and
a far more efficient functioning of the trial, without substantially curtailing their
57Article
35 new ECCC Law; Articles 13(1) and 17 ECCC Agreement.
58Rules12ter and 23(3) and 23ter ECCC Internal Rules (Rev. 5), adopted on 9 February 2009
and amended on 9 February 2010.
34 H. Jarvis
rights. The Trial Chamber’s decisions on reparations in Case 002/0159 were widely
welcomed, approving most of a creative suite of proposals submitted by the Civil
Party Lead Co-Lawyers, designed to provide remembrance and memorialization,
rehabilitation of victims, and documentation and education.60
2.5 Non-judicial Challenges
2.5.1 The Ticking of the Clock
An external factor, undoubtedly constituting the greatest threat of all, was the pas-
sage of time. Most of the senior leaders and those most responsible for the crimes
had died even before the Court was established—most notably Brother Number
One, Pol Pot, in April 1998, never having had to answer for his role. Pol Pot him-
self ordered the execution of a number of his lieutenants during the period of
Democratic Kampuchea and then again in mid-1997 of his chief of internal secu-
rity Son Sen and his wife Yun Yat. Others, like Pol Pot’s deputy Ke Pauk, died in
the period of negotiations to establish the Court.
The vulnerability of the Court to passing time was shown acutely when military
leader Ta Mok died, while in military detention, on 21 July 2006, just a month
after the swearing in of the Court’s judges and co-prosecutors. Age and poor
health continued to trouble the five defendants. When charged by the ECCC in
late 2007, Duch, the youngest, was already in his mid-60 s, while the other four
were aged from 79 to 83, all beyond Cambodia’s life expectancy and all suffering
various ailments as would be expected for their age. Each time the Court reported
that one had been taken to hospital even for a regular check-up and each time an
ambulance was seen to leave the ECCC compound, rumours would circulate that
another defendant was close to death. Even if they were all to survive, how would
their age and poor health affect their ability to participate in their trials? By the
time the second case got under way, one of the four defendants (former Minister
of Social Action, Ieng Thirith) was severed from the case, in November 2011
deemed unfit to stand trial due to her mental health, while another (her husband
and former Deputy Prime Minister for Foreign Affairs, Ieng Sary) died soon after-
wards, on 14 March 2013, leaving only two persons in the dock (former chief ide-
ologue, Deputy Secretary of the Communist Party of Kampuchea and Chairman of
the People’s Representative Assembly Nuon Chea and former Head of State Khieu
Samphan).
59Judgment, Nuon Chea and others, supra note 44.

60Civil Party Lead Co-Lawyers’ Response to the Trial Chamber’s Memorandum (E218/7/2)
Concerning Reparations Projects for Civil Parties in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E218/7/3), Civil Party Lead Co-Lawyers, 23 August 2013, wherein the
Civil-Party Lawyers outline thirteen proposed projects.
And of course the victims who survived the horrors of Democratic

Kampuchea were likewise not spared the consequences of the tolling of the bell
of time. Many died before seeing any perpetrator stand accountable in a court
of law or without having the chance to tell their stories as witnesses or as civil
parties. At every public forum, interview or visit to the Court, time and again
Cambodians expressed bitter frustration at how long it had taken to establish the
Court and even shed tears of anxiety as to whether trials could be completed
and verdicts reached before defendants died. Public Affairs Section officials val-
iantly argued that, however fast the Court worked now, the ECCC could not turn
back the clock and recover the lost 30 years. And, even though they argued with
some reason that the Court was moving fast when compared to others of its type
dealing with massive crimes and involving international laws and judges, in the
assessment of many, especially ordinary people, the progress of the legal process
was painfully slow.
The Duch trial lasted 77 trial days over a period of nine months. How would
the Trial Chamber manage to complete the second trial in a reasonable time in
a situation where initially four, later reduced to two, defendants were being tried
together, varying day by day in their health and strength. The spectre of Milosevič,
who died in March 2006 just a few months before the verdict was due in his four-
year trial at the ICTY, haunted the ECCC and posed the nagging contradiction
between ensuring defence rights and maintaining international standards of fair
trial while at the same time moving as fast as possible in the interest of ensuring
that the trials could be completed before the defendants died. While the time taken
to carry out every individual action could always be argued as justified due to the
legal and judicial complexity of matters being considered, problems of translation
and operating in three languages, difficulty in recruiting personnel and many other
entirely reasonable considerations, the sum total of all the delays meant that the
initial estimates for the time needed for the ECCC to carry out its mandate were
woefully understated.
Neither the United Nations nor the Cambodian government anticipated that the
ECCC would be a permanent or even long-lasting institution, but the initial three
year projection was clearly quite an unrealistic expectation for an undertaking of
this nature, and the contradiction between this plan and the ever-extending reality
led to frustration and anxiety.
2.5.2 Chronic Under-Funding
Next to the passing of time, the ECCC’s main and continuing problem was a lack
of financial security. As mentioned above, this was a problem that had been antici-
pated by the Secretary-General in his March 2003 report in which he advocated
that the ECCC be financed under assessed contributions, like the ICTY and ICTR,
concluding that ‘assessed contributions are the only mechanism that would be via-
ble and sustainable’.
36 H. Jarvis
However, fearing being caught in ever spiralling demands for funds as in the
ICTY and ICTR, the major contributors to the United Nations budget ruled out
assessed contributions, and the UNGA resolution approving the Court specified
that it should be funded by voluntary contributions like the Sierra Leone Special
Court. This proved to be just as heavy a burden on the ECCC as it was in Sierra
Leone. Some observers went so far as to call this formula a ‘time-bomb’. Both the
Sierra Leone and Cambodian courts were weighed down by the responsibility of
constantly seeking funds and projecting new or revised budgets to address the real-
ity of conflicting requirements for more time and money as the cases continued to
roll on, in the face of the absence of even the originally budgeted funds, let alone
the ever increasing amounts. Stephen Rapp estimated that he spent about one-third
of his time on fund raising when he was Prosecutor of the Sierra Leone Special
Court (SCSL).61 Eventually, in 2011, the UN made the decision to provide supple-
mentary funds from its regular budget to the SCSL,62 and a similar arrangement
was made in 2014 and again in 2015 for the ECCC63 (but, on the initiative of the
US, this subvention was limited only to the international component of its budget).
As with the time projection, the initial cost estimate for the ECCC of $19 mil-
lion over three years was ridiculously low (albeit, even though not stated, this
was only for the international component of the budget). Two UN Technical
Assessment Missions were dispatched to Phnom Penh and a budget was readied
for presentation to the donors by the end of the first quarter of 2004.
Of some surprise to the Cambodian side was that the UN had decided to present the
needs of the Court in two separate funding requests—for the international and national
components respectively—and that the relative size of the two requests was vastly dif-
ferent. The division of responsibility was ultimately derived from the Agreement (which
specified that premises and national staff would be provided by Cambodia, while the
United Nations was responsible for remuneration of international judges and staff,
defence counsel, witness travel etc.), but there was considerable latitude as to how a
number of items would be costed and to which side they would be allocated. The inter-
national component was extended from the figures in the Secretary-General’s 2003
report, while a separate budget was developed for items under the responsibility of the
Cambodian government. This two-column staffing table, defining in advance every sin-
gle post in the ECCC as either international or national, was argued to be necessary
because they anticipated differential pay-scales for national or international staff.64
61Wierda and Triolo 2012, at 155.

62See Sanusi 2013, at 472.
63GA Res. 68/247B, 9 April 2014.
64In a compromise between calls for equality of salaries and the difficulty of securing sufficient
funds, it was agreed during the negotiations in 2004 that national staff in professional grades
would receive 50 % of the salary of their international counterparts according to the UN pay
scale of 2004, while non-professional staff were to follow the pay scales set for Cambodia by
the United Nations Development Programme (UNDP) and this formula was subsequently
endorsed in several reviews, see Deloitte Touche Tohmatsu, ‘Report of the Special HRM Review’
(24 March 2008) at 3.
Although important preparatory steps were being taken in terms of budget defi-
nition and training of potential judges and prosecutors, the Agreement had still not
been ratified as a result of the protracted and indeed intensifying political stand-off
in Cambodia. The constitutional requirement for a two-thirds majority to form a
government had not been met following the July 2003 election, and by mid-2004
this impasse was still preventing the convening of the National Assembly, whose
approval was necessary to ratify the Agreement and to amend the 2001 Law on the
Establishment of the Extraordinary Chambers. The political deadlock in Cambodia
was eventually broken and on 4 October 2004 the National Assembly unanimously
approved the Agreement, adopting the amended Law on the following day.
But cold water was poured on this progress in Cambodia by a statement by the
Secretary-General that ‘the process of setting up the Extraordinary Chambers can
only be initiated once sufficient money is in place to fund their staffing and opera-
tions for a sustained period of time… when pledges for the full three years of the
Extraordinary Chambers’ operations as well as actual contributions for its first
year of operations have been received’65—a very high bar to place and one that
almost prevented the Court from ever going ahead. Up until that time the only
pledges that had been made were from Australia ($1.5 million), France (EUR 3
million) and the European Union (EUR 3 million)—and the targets seemed impos-
sibly far away. Only Japan’s bold move in early February 2005 to pledge $21.6
million, a half of the projected international component, saved the day.
By the time of the initial pledging conference at UN headquarters on 28 March
2005, the budget estimates for a court projected to last some three years had risen to
$56.3 million broken down into two columns—an international component of $43.3
million and a national component of $13 million. At the pledging conference, $38.4
million was pledged towards the international component. However, the Cambodian
side was severely under-funded, with only India ($1 million) and Thailand ($25,000)
coming on board towards the $13 million national target. This under funding contin-
ued to dog the Court not only because the uncertainty hampered long-term planning
and appropriate forward commitments. It also gave a weapon to the Court’s critics
to pressure donors or certain constituencies in the donors’ home countries to channel
funding only to certain activities or to pressure the Court in one way or another.
Governments and international organizations were very sensitive to criticisms
of the ECCC, and were often reluctant to grant funds and the court has continued
to face financial crisis after crisis, especially on the national side, with staff even
going without pay on several occasions for periods of months at a time. The total
expenditure of the ECCC from its establishment in 2006 until the end of
December 2014 amounted to $236.2 million (international $180.1 million and
national $56 million).66
65Secretary-General’s Report to the General Assembly, UN Doc. A/59/432/Add.1, 12 October
2004, § 14b.
66Summary of expenditure and donor contributions as of 31 December 2014, ECCC Budget and
Finance Offices, available at http://www.eccc.gov.kh/en/about-eccc/finances/summary-expenditure-

and-donor-contributions-31-january-2015 (visited 15 June 2015).
38 H. Jarvis
Alongside the Court’s vulnerability to political campaigns, its financial health

was jeopardized by an anomaly in the budget presentation and differing views
as to what was obligatory or appropriate for the Cambodian government itself to
fund (and indeed how much it was actually providing to the Court). Ambiguity
and confusion over this issue in turn served to fuel the critics of the Court and
further undermine funding appeals, especially for the Cambodian component, even
though the Cambodian government had made it clear right from the start of discus-
sions with the UN Technical Assessment Mission in 2003 and 2004 that it would
be appealing for donor funds for the majority of the $13 million designated as the
Cambodian responsibility.
The Cambodian government’s own contributions for the ECCC from 2006 to
the end of 2014 amounted to $30.6 million (consisting of in-cash expenditure from
the national budget of over $18.5 million and $12.1 million in in-kind expenditure
for items such as provision of the premises, utilities and other operational costs,
detention and medical costs for detainees and other non-obvious costs such as the
substantial additional security expenditures surrounding the holding of the trials as
well as processing of related visas and import of materials tax-free). A substantial
increase in cash contributions in 2014 and 2015, brought Cambodia’s total con-
tributions to more than 10 % of the total budget of the Court and placed it as the
second highest donor (after Japan).
Remarkably, the Cambodian government’s own contributions to the Court
were not even included in the main tables in budgets presented to the donors
and the Cambodian government was constantly berated and belittled for what
was termed its ‘absence’ of funding, and failure to meet its financial obligations,
despite the fact that its expenditure on the ECCC amounted to more than 200 %
of the annual budget for the Appeals Court of Cambodia. In contrast, none of the
other countries in which tribunals were established with international participa-
tion had made any substantial financial commitments to the operations of these
courts.
The early decisions by the UN Technical Assessment Missions to set up sepa-
rate national and international budget columns and staffing tables led to a bifur-
cated foundation for the Court, and the ways these decisions were implemented
only served to solidify and increase this bifurcation. The negotiators originally
envisaged the Court to have 2/3 national staff and 1/3 international. While the
numbers of Judges, Co-Prosecutors and Co-Investigating Judges and the Director
and Deputy Director of Administration were prescribed in the ECCC Law and
ECCC Agreement, outside these 31 positions this 2:1 plan remained somewhat
notional and was subverted by the reality that all the most junior and most numer-
ous staff in the Court—maintenance, drivers, messengers, security staff—were
all Cambodians, while more senior positions were more heavily international.
Furthermore, the UN engaged a considerable number of consultants and interns
who did not figure in the staffing tables. As a result, the real number of interna-
tional staff, particularly in the judicial areas and at senior level continued to
mount, at least until some severe budgetary pruning in 2013.
2.5.3 The Tower of Babel
Under the Cambodian Constitution, Khmer is the only official language of

Cambodia and, as a Cambodian court, the ECCC of course also used Khmer as its
official language. However, the ECCC Law and the ECCC Agreement stipulated
that English and French would also have the status of ‘official working languages’
in order to facilitate international participation by lawyers, judges, administra-
tive and legal staff and the public. In early drafts the Cambodian side proposed to
include Russian, as many Cambodian judges and legal staff had been trained in the
former Soviet Union and Russia had assisted Cambodia by sending legal experts
to help draft the ECCC Law, but, after the UN team advised against adding this
heavy extra financial burden, this idea was dropped.
Neither the ECCC Law nor the ECCC Agreement, nor even the Internal Rules
as adopted, stipulated exactly what type of documents would need to be translated
into which language, nor what level of interpretation would be mandatory. It took
some time for practice directives and decisions to evolve to regulate this compli-
cated and yet essential area of the Court’s activity, and for the necessary funding
and staffing to be provided to support it. This was yet another area that had been
woefully underestimated in the original budget provisions, and the difficulty of
finding sufficient translators and interpreters, especially to and from French and
Khmer, had not been anticipated or prepared for, and the Court relied heavily on
relay translation and interpretation to and from English and French.
But, daunting as it was, the need for official translation of documents and inter-
pretation of proceedings was only one side of the linguistic challenge faced by
the Court. Developing working relationships among the judges and staff in each
Chamber and Office proved to be just as hard. Not a single international judicial
officer (and less than a handful of legal or administrative staff) had any Khmer
language capability at all, and most of the Cambodian judges had limited foreign
language capability, with Russian or Vietnamese the most predominant second
language. And no attempt was made on either side to pairing the linguistic ability
of counterparts when appointing judges.
This limitation of language skills on the international side was not surprising,
as Khmer is a language spoken hardly at all outside the borders of the country. On
the part of the Cambodian judges, it was result of the policies of the Khmer Rouge
regime that had obliterated almost all educated people, and the long years of boy-
cott that had delayed the rebuilding of professional skills. The Supreme Council
of Magistracy appointed Cambodia’s most senior judges to the ECCC, and people
of their age typically have less foreign language capability than their more junior
colleagues. So it was that the three reserve Cambodian judges in each Chamber all
could speak English, and managed to facilitate internal communication.
But language was not the only barrier to communication and understanding—
the multiplicity of cultures and legal systems among the judges caused considerable
problems, particularly as a number of the international judges had limited experi-
ence in the civil law system followed in Cambodia or in international criminal law
40 H. Jarvis
or trials for mass crimes. On the Cambodian side, their limited experience of such
trials was matched by lack of exposure to any trials with a strong defence and sub-
ject to high public interest and exposure.
2.5.4 The Crusade Against the ECCC by Human Rights

Organisations
Throughout the life of the ECCC there was an ambiguity and even a tug-of-war
between those who seemed to want it to succeed and those who, for many var-
ied reasons seemed to be happy to see it fail, some even gloating over its every
stumble. Such differing views should really have been hardly surprising given the
background of disregard for the crimes for twenty years followed by rocky and
contested negotiations throughout the Court’s gestation period from 1997 right up
to the its establishment in 2006. The same actors who stood by helping or hinder-
ing the birth continued to play the same roles as the infant struggled to breathe, to
crawl and finally to walk and even run.
Paradoxically, the principal and most outspoken critics of the ECCC were
the two most well-known international human rights organisations, Amnesty
International and Human Rights Watch (HRW). Both had campaigned vigorously
for a purely international court throughout the negotiations and seemed never
able to reconcile themselves to the ‘Cambodian model’ that did become a reality.
Certainly neither of them was ever ready to welcome or praise the Court, deciding
instead to play a role of constant detractor, allowing their opposition to Hun Sen
and his government to outweigh the need for support for this long-overdue effort
to address the most significant human rights violations in Cambodian history.
Alongside these two NGOs, and more closely involved on the ground in
Cambodia, was the Open Society Justice Initiative (OSJI, and its local offshoot,
the Cambodian Justice Initiative—CJI). These are part of the Open Society
Foundations (formerly known as the Open Society Institute) stable of organisa-
tions set up by US financier and philanthropist George Soros around the world,
particularly in the former socialist countries, with the financial resources to make
quite an impact in a number of local situations. While Soros is well known in the
USA as a supporter of the Democratic Party, in the Cambodian instance his organ-
ization worked in tandem with that arch-conservative newspaper the Wall Street
Journal in a most damaging and sustained campaign.67
Even before the ECCC was formally established, OSJI adopted an active stance
in the self-appointed role as monitor of the ECCC, to which end it published
67In October 2006 OSJI wrote to donors raising concerns about ‘hiring practices’, kicking off
a campaign of unspecific and unsubstantiated allegations that were reported repeatedly in the
Wall Street Journal. See for example J.A. Hall, ‘Yet another UN scandal’, Wall Street Journal
(21 September 2007); ‘Corruption complaints at the Khmer Rouge War Crimes tribunal’, Wall
Street Journal Asia (2 October 2008); J.A. Hall, ‘A UN fiasco in Cambodia’, Wall Street Journal
(5 October 2011) and elsewhere in the press, continuing to dog the ECCC until today.
regular reports and press releases. While these documents served as a useful
record of the Court’s progress, and a means to highlight special needs for funding,
their principal focus was to criticize. Their content, often based on internal, even
confidential, information and complaints, served to undermine and destabilize the
Court and particularly to unsettle donors and interrupt its funding.
These criticisms from international NGOs were supported by a number of local
human rights organizations, particularly those grouped together as the Cambodian
Human Rights Action Committee (CHRAC). It was ironic and contradictory that
most of these NGOs were at the same time conducting parallel activities with the
stated aim of supplementing or sometimes collaborating with the Court’s own
activities, particularly in the fields of outreach and promoting victim participa-
tion. Their role as critics, often shrill and vitriolic, scarcely laid the basis of trust
and confidence needed to make for smooth partnerships. This was exacerbated by
the fact that the NGOs applied for and succeeded in gaining funds for such activi-
ties—many donors preferring to channel funds through the NGO sector rather
than directly to the Court—while at the same time those very NGOs continued to
denounce the Court for not doing these same activities.
This crusade from the human rights organisations certainly had an effect on
public attitudes to the Court, even weakening support within the structures of the
Court’s ‘parents’—the United Nations and the Cambodian government. On both
sides, everyone knew that it had been a risk to set up the ‘Cambodian Model’—the
question was whether it was a risk that had proved to be worth taking.
2.6 Conclusion
It would undoubtedly have been an easier process and many of the difficulties out-
lined above could have been avoided had the ECCC been a wholly international or
wholly national institution but neither of these options was ever really on the cards.
The crimes were committed before the Rome Statute entered into force, and so the
ICC had no mandate; the threat of the veto power had stymied several tentative moves
made during the 1980s to engage the UN Security Council; and the Cambodian gov-
ernment opposed any action to take the issue out of its hands, asserting adamantly that
under the Genocide Convention it had the primary responsibility to act and indeed
was willing to do so, but was seeking international assistance and involvement.
So it was that in 1999 the United Nations and Cambodia launched into the
world’s first negotiations for a hybrid tribunal, although, due to the lengthy negoti-
ations discussed above, the ECCC was established only in 2006, being preceded
by hybrid courts in several other countries.68
68Other hybrid courts preceding the ECCC include the Special Panel for Serious Crimes within the
Dili District Court of East Timor (established by the United Nations Transitional Administration in
East Timor in 2000) and the Special Court for Sierra Leone (established by in 2003 on the basis of
an Agreement between the United Nations and the Government of Sierra Leone), while the United
Nations Mission in Kosovo began appointing international judges to the Kosovar district courts in 2000.
42 H. Jarvis
Whether the framework of the ECCC may serve as a model for other countries
deserves discussion, and indeed has been emulated in some aspects in the structure
of the Extraordinary African Chambers within the Senegalese judicial system
established in 2013 following the signing of an Agreement between the govern-
ment of Senegal and the African Union.69
A mixed or hybrid court such as the ECCC has certain advantages and yet also
faces some inherent difficulties of divided responsibilities and slow decision-mak-
ing that either a purely national or international court can be spared.
Certainly holding the trials in situ, with the involvement of national judges,
prosecutors and defence lawyers, proceedings broadcast in the national language,
accessible to direct public involvement, and especially victim participation as Civil
Parties, have been extremely positive features—critical in attracting such a high
level of popular support for the ECCC, particularly when compared to the inter-
national tribunals. But such an approach of course depends on a government that
supports the process as well as having the domestic judicial, legal, financial and
security structures capable of sustaining the heavy demands of such a court.
International participation was a fundamental aspect of the ECCC and from the
start was a precondition for international financial support, which has been essen-
tial to underpin the relatively costly framework and structure when compared to
a purely domestic process. The involvement of the United Nations necessarily
incurs a very heavy financial and administrative burden, but it can of course bring
to the court expertise, facilities and procedures to complement those prevailing in
the domestic judiciary, not to mention giving greater international exposure and
recognition. This contrasts with the conduct of a purely national process as in the
International Crimes Tribunals in Bangladesh, which is markedly speedier and
less costly in financial terms, but lacks the benefit of the international input and is
bearing the brunt of even more strident international criticism.
Whether to proceed via a purely national or international process, or whether to
embark on the complex road of gaining support internationally and then negotiat-
ing, designing and actually establishing a hybrid process, and what balance should
be struck between national and international elements, is not something that can
be prescribed from outside, but must be decided according to the specificities of
each case, taking into account historical factors as well as the objective and sub-
jective situation.
The ECCC is still in train, not yet a historical event to be evaluated. Until it fin-
ishes its work, one cannot venture to conclude whether or how well this process of
judicial accounting was achieved and how it contributed to Cambodia’s struggle to
free itself from the weight of this brutal period in its recent history.
What can be stated unequivocally, however, is that millions of Cambodians are
watching the process intently. By March 2014, more than 450,000 Cambodians
69Agreement between the Government of the Republic of Senegal and the African Union on
the Establishment of Extraordinary African Chambers within the Senegalese Judicial System,
22 August 2012.
had visited the court. The courtroom is said to be the largest in the world, holding
some 500 people in the public gallery, and its proceedings are often broadcast live
on national television and radio. In a poll taken towards the end of Case 001, more
than 80 % of those surveyed reported being aware of the ongoing process, 60 %
having themselves seen it on television and 70 % believing it is providing jus-
tice.70 A flowering of public and private reflection, research and comment is under
way, really seizing popular attention alongside the judicial process. Week after
week, month after month, programmes and activities are carried out throughout
the country—on screen, on stage, in print, in schools, in wats, mosques and
churches, at memorial sites, in meetings, forums, discussions, therapy sessions etc.
The participation of some 4,000 victims as Civil Parties may be considered one of
the ECCC’s main contributions to the development of international justice, despite
the fact that precisely because it was a pioneer in this field, the ECCC had no prece-
dents or road maps on which to rely, but had to develop its own procedures for victim
participation, a process that was severely impeded by the unfamiliarity of common
law judges and United Nations administrators with this element of civil law.
Further, many Cambodian judges and legal and administrative staff have
gained tremendous benefits from working in a modern court functioning accord-
ing to international standards alongside more experienced international colleagues.
Issuance of reasoned judgments; support and protection for witnesses, victims and
the defence; translation and interpretation services; an efficient registry of court
documents, most of which are posted publicly and promptly on the Court’s web
site along with press releases and news; outreach activities in the provinces and
the media—all these are new features of court management for Cambodia that are
now starting to be introduced into the domestic court system.
Some have criticized the ECCC for its high costs, in a poor country that has
many pressing needs. Others have ridiculed the small number of people brought
to trial. But that was inevitable, given the Court’s personal jurisdiction of trying
only ‘senior leaders and those most responsible’ and the 30 year delay before
the process even started. But, even if no more cases are tried, with the successful
completion of Case 001 and the first part of Case 002, the Court can establish the
historical record for future generations and provide justice to the victims through
judicial accountability by the senior leaders and those most responsible for the suf-
fering of the Cambodian people during the period of Democratic Kampuchea—the
principal objectives for establishing the ECCC and its true legacy.
70International Republican Institute, ‘Survey of Cambodian Public Opinion’, (2 February 2010),
available at http://www.iri.org/news-events-press-center/news/iri-releases-latest-survey-cambodian-
public-opinion (visited 15 June 2015).
44 H. Jarvis
References
Amer R (1989) The General Assembly and the Kampuchean Issue: Intervention, Regime
Recognition and the World Community: 1979–1987. Uppsala University Press, Uppsala
Chandler D (2000) Voices from S-21: Terror and History in Pol Pot’s Secret Prison. Silkworm
Books, Chiang Mai
Fawthrop T, Jarvis H (2004) Getting away with Genocide: Elusive Justice and the Khmer Rouge
Tribunal. Pluto Press, London
Feierstein D (2012) The Concept of Genocide and the Partial Destruction of the National Group.
http://logosjournal.com/2012/winter_feierstein. Accessed 15 June 2015
Feierstein D (2014) Genocide as Social Practice: Reorganizing Society under the Nazis and
Argentina’s Military Juntas. Rutgers University Press, New Brunswick, New Jersey and
London
Ferreira M (2013) Genocide, and its definition as the ‘partial elimination of a national group’.
Genocide Studies and Prevention 8:5–19
Findlay T (1995) Cambodia: the Lessons and Legacy of UNTAC. Oxford University Press,
Oxford
Kiernan B (1996) The Pol Pot regime: Race, Power and Genocide in Cambodia under the Khmer
Rouge, 1975–1979. Yale University Press, New Haven
Panh R (2003) S21: The Khmer Rouge Killing Machine, Institut national de l’audiovisuel.
France and First Run Features, USA
Sanusi S (2013) SCSL Practice on Cooperation with the Host State and Third States:
A Contribution to Africa and International Criminal Justice. In: Jalloh C (ed) The Sierra
Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law,
Cambridge University Press, Cambridge, pp 469–480
Scheffer D (2012) All the Missing Souls: A Personal History of the War Crimes Tribunals.
Princeton University Press, Princeton
Widyono B (2008) Dancing in Shadows: Sihanouk, the Khmer Rouge, and the United Nations in
Cambodia. Rowman & Littlefield, Maryland
Wierda M, Triolo A (2012) Resources. In: Reydams L, Wouter J, Ryngaert C (eds), International
Prosecutors, Oxford University Press, Oxford, pp 113–170
Chapter 3
Allegations of Political Interference,
Bias and Corruption at the ECCC
Shannon Maree Torrens
Abstract This chapter analyses the allegations of political interference, judicial

bias and corruption that have plagued the ECCC since its inception, manifesting
in considerable pressure applied to the Court and its judges by the accused, inter-
national donors and monitors. This has resulted in instances of judicial resigna-
tion and also applications for judicial disqualification. The successful completion
of trials at the ECCC is vital to ensuring the integrity and legacy of the Court. It is
essential for victims of the Khmer Rouge regime that those who were most respon-
sible for the crimes committed are brought to justice. It is equally paramount that
those individuals are prosecuted by a judicial structure that has both the perceived
and actual integrity to ensure that the accused are tried fairly by a court that is
respected locally within Cambodia, as well as internationally for its independence.
Keywords Disqualification of judges · Judicial independence · Political interference ·

Bias · Corruption · International criminal justice
Contents
3.1 Introduction.......................................................................................................................... 46
3.2 Structural Deficiencies and Political Interference................................................................ 46
3.3 Judicial Resignation in Response to Political Interference.................................................. 49
3.3.1 The Resignation of Judge Blunk................................................................................ 50
3.3.2 The Resignation of Judge Kasper-Ansermet............................................................. 51
The author is a Ph.D. Candidate (International Criminal Law) at the University of Sydney Law
School and is admitted as a lawyer of the Supreme Court of New South Wales, Australia.
S.M. Torrens (*)
University of Sydney Law School, Sydney, Australia
e-mail: shannon.torrens@gmail.com

DOI 10.1007/978-94-6265-105-0_3
46 S.M. Torrens
3.4 Allegations of Judicial Bias at the ECCC............................................................................ 52

3.4.1 The Applicable Standard for Judicial Disqualification.............................................. 52
3.4.2 ECCC Case Law on Allegations of Bias.................................................................... 54
3.5 Allegations of Interference with the Administration of Justice........................................... 65
3.5.1 Background and Legal Framework............................................................................ 65
3.5.2 ECCC Case Law on Allegations of Political Interference......................................... 65
3.5.3 Discussion.................................................................................................................. 69
3.6 Impediments to the Judicial Process.................................................................................... 71
3.7 Concluding Remarks............................................................................................................ 72
References................................................................................................................................... 74
3.1 Introduction
When the international community reflects back on the Khmer Rouge trials, it
is important that it is done so with the belief that the Extraordinary Chambers in
the Courts of Cambodia (hereafter ECCC or Court) was a judicial institution of
integrity and independence. A court that was able to ascertain the truth as to what
occurred during the rule of the Khmer Rouge regime through judicial proceed-
ings, whilst rendering fair judgments and ensuring the rights of the accused were
protected. The legitimacy of the ECCC rests predominantly on the judicial integ-
rity of the Court, which has been repeatedly challenged since its creation with alle-
gations of political interference, judicial bias and corruption. This has resulted in
instances of judicial resignation and applications for judicial disqualification, amidst
a challenging environment comprised of both domestic and international political
pressure. In this context, this chapter will explore the background, outcomes and
causes of the Cambodian Government’s alleged political interference in the work
of the ECCC and the resultant issues. These matters will be considered in light of
the ECCC’s creation as a hybrid court and most importantly, the role it must play in
ensuring that the victims of the Khmer Rouge, their families and community even-
tually see some measure of justice for the crimes that were committed against them.
3.2 Structural Deficiencies and Political Interference
The ECCC was established in 2003, by an agreement between the United Nations
and Cambodia, as a hybrid court,1 almost twenty-five years after the fall of the
Khmer Rouge regime.2 As opposed to the UN ad hoc international criminal tribunals
1Leang and Smith 2010, at 145; ECCC, ‘Is the ECCC a Cambodian or International Court?’ availa-
ble at http://www.eccc.gov.kh/en/faq/eccc-cambodian-or-international-court (visited 15 June 2015).

2Agreement 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 (hereafter ECCC Agreement), 6 June 2003; Leang and Smith 2010, at 145.
3 Allegations of Political Interference, Bias … 47
for Rwanda and the Former Yugoslavia, which were created in the 1990s by the
United Nations Security Council as purely international criminal tribunals,3 the
ECCC is a ‘special internationalised tribunal’ that resides within the framework of
the Cambodian judiciary.4 In this way it is categorised as a ‘separately constituted,
independent and internationalised court.’5 Despite having been ‘established within
the existing Cambodian court structure, the ECCC is, and operates as, an independ-
ent entity within this structure.’6 The ECCC is a hybrid court,7 similar to the Special
Court for Sierra Leone,8 in that it is comprised of both international and national
judges, prosecutors and staff.9 However, at the ECCC, national officials are in the
majority.10 Furthermore, there are two Prosecutors and two investigating judges,
with one national and one international official in each role.11 As will be discussed
below, these unique structural and institutional elements have arguably contributed
to allegations of political interference and bias at the Court.
The ECCC operates in a difficult legal and political environment of competing
interests and unspoken challenges over control of the Court’s processes, the focus
of future prosecutions and the outcomes of cases.12 Due to the challenging envi-
ronment the Court must work in, since its inception, the ECCC has been subjected
to ongoing allegations that the Cambodian government has politically interfered in
the operations of the Court in order to gain control over its prosecutions.13 The
legitimate influence of the Cambodian government in the workings of the ECCC
as a hybrid court is intended to give the country and its people a greater sense of
3See SC Res. 955, 8 November 1994, on the establishment of the ICTR; SC Res. 827, 25 May
1993, on the establishment of the ICTY.
4Order of Provisional Detention, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-C3), Office of
the Co-Investigating Judges, 31 July 2007, § 20; Decision on Request for Release, Kaing Guek
Eav (Duch) (001/18-07-2007/ECCC-E39/5), Trial Chamber, 15 June 2009, § 10 (hereafter Duch
Decision on Request for Release).
5Duch Decision on Request for Release, supra note 4, § 10.
6Ibid.
7Ehlert 2013, at 191; ECCC Agreement.
8See Agreement between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone, 16 January 2002.

9Leang and Smith 2010, at 146–147.
10Cerone 2009, at 175.
11Leang and Smith 2010, at 146.
12Open Society Justice Initiative, ‘Political Interference at the Extraordinary Chambers in the
Courts of Cambodia’, July 2010, available online at http://www.opensocietyfoundations.org/sites/

default/files/political-interference-courts-cambodia-20100706.pdf (visited 15 June 2015), at 2.
13G. Wilkins, ‘KRT Judge Urges Action on Graft’, The Phnom Penh Post (2 September 2008),
available at http://www.phnompenhpost.com/national/krt-judges-urge-action-graft (visited 15 June

2015); J. Hall, ‘In the Cambodian Judges’ Court: The Judiciary has the Power to Investigate
Alleged Fraud at the War-Crimes Tribunal’, Wall Street Journal (28 May 2009), available online at
http://online.wsj.com/news/articles/SB124344451220159175 (visited 15 June 2015); S. Mydans,
‘Corruption Allegations Affect Khmer Rouge Tribunal’, New York Times (9 April 2009), available
at http://www.nytimes.com/2009/04/10/world/asia/10cambo.html (visited 15 June 2015).
48 S.M. Torrens
ownership over the proceedings.14 However, this involvement has unfortunately

resulted in political tension between the United Nations and the Cambodian gov-
ernment, in addition to increasing perceptions and allegations of bias and political
interference.15 The Cambodian Government has been accused of stalling proceed-
ings, influencing judges, preventing witnesses from giving evidence and receiving
kickbacks from Cambodian employees at the ECCC in exchange for positions at
the Court.16 These criticisms have come from the accused at the Court, NGOs, the
media and other stakeholders concerned about the integrity of the Court’s
processes.
Allegations of political interference and bias have caused disruption to the work
of the ECCC and its ability to prosecute those most responsible for crimes com-
mitted during the Khmer Rouge period.17 It has also eroded trust in the Court’s
integrity,18 which may ultimately jeopardise the Court’s legacy and its ability to
contribute to an end to impunity for crimes committed by the Khmer Rouge and
also national reconciliation in Cambodia. Problematically, tension between the
Cambodian government and the ECCC has stalled prosecutions beyond Case
002.19 The current Cambodian Government, lead by Hun Sen since 1998 has been
openly opposed to the investigation of Cases 003 and 004, allegedly because the
suspects are former Khmer Rouge officials whose interests are believed to be
interwoven with that of the current government.20 Furthermore, as will be dis-
cussed in this chapter, allegations of political interference have resulted in judicial
resignation and disagreements over the appointment of judges at the Court.
Furthermore, there have been allegations of judicial bias by the Court’s national
14Barria and Roper 2010, at 7.

15C. Campbell, ‘Cambodia’s Khmer Rouge Trials are a Shocking Failure,’ TIME Magazine
(13 February 2014), available online at http://time.com/6997/cambodias-khmer-rouge-trials-are-
a-shocking-failure/ (visited 15 June 2015); K. Sok, ‘Analysts: UN-Cambodia Trial Agreement
Positive Step’, Voice of America News (3 February 2014), available at http://www.voanews.com/
content/analysts-uncambodia-trial-agreement-positive-step/1843575.html (visited 15 June 2015);
Open Society Justice Initiative, supra note 12.
16Curley 2013, at 150; Peou 2013, at 146; Hall, supra note 13; Wilkins, supra note 13; Mydans,
supra note 13.

17Human Rights Watch, ‘Cambodia: Government Obstructs Khmer Rouge Court: Tribunal
Staff Unpaid Since May; End Hun Sen Delaying Tactics’ (5 September 2013), available at
http://www.hrw.org/news/2013/09/05/cambodia-government-obstructs-khmer-rouge-court (visited
15 June 2015).
18Bassiouni 2013, at 768.
19C. Sokha and J. O-Toole, ‘Hun Sen to Ban Ki-moon: Case 002 Last Trial at ECCC’, The Phnom
Penh Post (27 October 2010), available at http://www.phnompenhpost.com/national/hun-sen-ban-ki-

moon-case-002-last-trial-eccc (visited 15 June 2015); Open Society Justice Initiative, ‘The Future of
Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia’ (October 2012), available
at http://www.opensocietyfoundations.org/sites/default/files/eccc-report-cases3and4-100112_0.pdf
(visited 15 June 2015), at 2; Open Society Justice Initiative, ‘Cambodian Government Must Confirm
New Judge Now’ (10 July 2012), available at http://www.opensocietyfoundations.org/press-releases/
cambodian-government-must-confirm-new-judge-now (visited 15 June 2015).
20Human Rights Watch, supra note 17.
and international judges, which have lead to numerous requests by the Defence for
judicial disqualification on the grounds of impartiality and lack of independence.
Prime Minister Hun Sen’s long standing opposition to the ECCC21 resulted in
an announcement that he did not support the prosecution of lower ranking Khmer
Rouge perpetrators and that the Court’s trials should focus only on several top sen-
ior leaders.22 The Prime Minister reportedly made his position known to UN
Secretary General Ban Ki-moon, stating that he would not allow prosecutions
beyond Case 002.23 Prime Minister Hun Sen reportedly said: ‘Case 003 will not
be allowed … [t]he court will try the four senior leaders successfully and then fin-
ish with Case 002.’24 This was on the basis that such prosecutions would only cre-
ate instability in Cambodia.25 In 2008 Cambodian Co-Prosecutor Chea Leang
similarly objected to the prosecution of any more than the five accused in cases
001 and 002.26 In doing so she said that any further prosecutions would be ‘desta-
bilising’ to Cambodia, would be too expensive and would ‘violate the spirit of the
tribunal.’27 In this way the Cambodian government has been accused of interfering
with the ECCC in order to protect its own interests.28 Due to this alleged interfer-
ence, the progress of cases 003 and 004 has been significantly hindered with the
cases still under investigation.29
3.3 Judicial Resignation in Response to Political

Interference
A considerable impediment to the ECCC’s functioning is that there has been an

apparent lack of trust and cooperation between the national and international sides
of the Court.30 The ECCC has been beset by disagreements between international
and national judges over alleged political interference by the Cambodian govern-
ment, particularly relating to investigations, which are the responsibility of the
Office of the Co-Investigating Judges (OCIJ).31 The OCIJ is vital to the integrity
21Ibid.
22Curley 2013, at 149.
23Open Society Justice Initiative, October 2012, supra note 19, at 2.
24Ibid.
25Curley 2013, at 149.
26Crowe 2014, at 366; Martin-Ortega and Herman 2012, at 83.
27Ibid.
28Sok Ry Sum, ‘Justice Evades Cambodia’s Khmer Rouge Trials’, Radio Free Asia (12 August
2014), available at http://www.rfa.org/english/commentaries/brutal-08122014172843.html (visited
15 June 2015).
29See generally Open Society Justice Initiative, October 2012, supra note 19.
30Mydans, supra note 13.
31Ibid.
50 S.M. Torrens
and effectiveness of the Court’s prosecutions, as it is tasked with examining the

evidence against suspects and it has the significant role of deciding whether or not
the Court should proceed with a particular prosecution.32 Of note, the OCIJ has
seen the resignation of two successive international Co-Investigating Judges,
namely Siegfried Blunk, in addition to his replacement, Laurent Kasper-Ansermet
(who was never formally appointed by the Cambodian Government).33 Upon their
respective resignations, Judge Blunk cited alleged political interference by the
Cambodian government in the work of the OCIJ as a motivation for his resigna-
tion, while Judge Kasper-Ansermet noted obstructionist behaviour by the National
Co-Investigating Judge as a key reason for being unable fulfil his role.34
3.3.1 The Resignation of Judge Blunk
Judge Blunk submitted his resignation as of 9 October 201135 and resigned on 30

November 2011, having served only 10 months in the role of International
Co-Investigating Judge.36 Upon his resignation, Judge Blunk alleged political
interference by the Cambodian government in the work of the OCIJ, referring to
public comments made by certain Cambodian political officials, which he believed
‘would be perceived as attempted interference by Government officials with Cases
003 and 004,’ rendering his position as judge too difficult to continue in the cir-
cumstances.37 Judge Blunk cited the example of the Cambodian Daily Newspaper,
which had quoted the Cambodian Foreign Minister as saying ‘[o]n the issue of the
arrest of more Khmer Rouge leaders, this is a Cambodian issue … This issue must
32ECCC, ‘The Co-Investigating Judges’, available at http://www.eccc.gov.kh/en/ocij/about (15 June
2015).
33Curley 2013, at 149; R. Carmichael, ‘Khmer Rouge Tribunal Judge Resigns Citing Political
Interference’, Radio Netherlands Worldwide (11 October 2011), available at http://www.robert

carmichael.net/Robert_Carmichael/Articles/Entries/2011/10/11_Khmer_Rouge_tribunal_judge_
resigns_citing_political_interference.html (visited 15 June 2015).
34Judge Siegfried Blunk, ‘Statement by the International Co-Investigating Judge’, ECCC (10 October
2011), available at http://www.eccc.gov.kh/en/articles/statement-international-co-investigating-judge

(visited 15 June 2015); S. Mydans, ‘Judge Quits Tribunal in Khmer Rouge Inquiry’, New York Times
(10 October 2011), available online at http://www.nytimes.com/2011/10/11/world/asia/judge-quits-
cambodia-tribunal.html (visited 15 June 2015); Judge Kasper Ansermet, ‘Press Release from the
International Reserve Co-Investigating Judge’, ECCC (19 March 2012), available at http://www.eccc.
gov.kh/en/articles/press-release-international-reserve-co-investigating-judge (visited 15 June 2015);
BBC, ‘Judge Quits Cambodian UN-Backed Khmer Rouge Trial’ (19 March 2012), available at http://
www.bbc.com/news/world-asia-17432484 (visited 15 June 2015).
35Judge Siegfried Blunk, supra note 34.
36United Nations, 'UN Voices Concern as Second Judge Resigns from Cambodia Genocide Court’
(19 March 2012), available at http://www.un.org/apps/news/story.asp?NewsID=41578#.VFz2UFOUcck

(visited 15 June 2015).
37Judge Siegfried Blunk, supra note 34.
be decided by Cambodia.’38 In addition, Blunk noted comments allegedly made by

the Cambodian Minister of Information who reportedly said that foreigners who
wanted to investigate cases 003 and 004, should ‘pack their bags and leave.’39
Blunk and Co-Investigating Judge You Bunleng who jointly headed the OCIJ were
themselves accused of working on behalf of Cambodian government interests due
to a perceived poor investigation into Case 003 and concerns regarding a lack of
investigations into Case 004.40
3.3.2 The Resignation of Judge Kasper-Ansermet
Blunk’s successor, UN nominated Co-Investigating Judge Kasper-Ansermet

resigned in March 2012, effective 4 May.41 The Cambodia Supreme Council of the
Magistracy had refused to appoint Reserve Judge Kasper-Ansermet as the
International Co-Investigating Judge, despite his nomination by the UN, a devel-
opment which resulted in a prolonged stalemate between the UN and Cambodia
over whether the judge was able to continue without the approval of the
Cambodian government.42 The Open Society Justice Initiative said this was ‘pro-
longing the crisis of credibility facing the court.’43 Like Judge Blunk, Judge
Kasper-Ansermet resigned citing alleged political interference in his work, specifi-
cally a lack of cooperation by the National Co-Investigating Judge You Bunleng.44
Due to this interference, Judge Kasper-Ansermet noted the reasons for his resigna-
tion were ‘manifestly more political and financial than strictly judicial.’45 On his
final day Judge Kasper-Ansermet distributed a press release, stating his opinion
that the lack of cooperation from fellow Co-Investigating Judge You Bunleng and
alleged interference by the Cambodian government in Cases 003 and 004 had
made his position as Judge untenable.46 The Judge explained that he worked in a
‘highly hostile environment and was severely impeded in the day to day perfor-
mance of his duties.’47
38Ibid.
39Ibid.
40Human Rights Watch, ‘Cambodia: Judges Investigating Khmer Rouge Crimes Should Resign’
(3 October 2011), available at http://www.hrw.org/news/2011/10/03/cambodia-judges-investigating-
khmer-rouge-crimes-should-resign (visited 15 June 2015).
41United Nations, supra note 36.
43Ibid.
44Judge Kasper Ansermet, supra note 34; Judge Kasper Ansermet, ‘Press Release by the Reserve
International Co-Investigating Judge,’ ECCC (4 May 2012), available online at http://www.eccc.

gov.kh/en/articles/press-release-reserve-international-co-investigating-judge (visited 15 June 2015).
45Judge Kasper Ansermet, supra note 44.
46Ibid.
47Ibid.
52 S.M. Torrens
Judge Kasper-Ansermet released another document expressing similar sentiments,

highlighting ‘the existence of serious irregularities and dysfunctional situations so as to
impede the proper pursuit of investigations in Case Files 003 and 004.’48 This docu-
ment noted concerns over allegations that Judge You Bunleng refused ‘to acknowledge
or support Judge Kasper-Ansermet’s standing as International Co-Investigating
Judge.’49 He cited a press release by Judge You Bunleng, which contested Judge
Kasper-Ansermet’s standing.50 Judge Kasper-Ansermet noted that ‘[i]mpeding the
judicial investigations in both cases thus amounts to a breach of due process of law and
the proper administration of justice.’51 When there are allegations of political interfer-
ence, resulting in judicial resignation52 in an office tasked with the purpose of investi-
gations53 and an office with functions vitally important to the integrity of the Court, it
can have negative repercussions on the outcome of investigations and the perception of
the Court locally in Cambodia and also internationally. The current International
Co-Investigating Judge at the ECCC is United States Judge Mark Brian Harmon.54 His
appointment by the Supreme Council of the Magistracy is significant because it was a
considerable stumbling block in the appointment of Judge Kasper-Ansermet.55
3.4 Allegations of Judicial Bias at the ECCC
3.4.1 The Applicable Standard for Judicial Disqualification
The national and international judges at the ECCC must be persons of ‘high moral
character, impartiality and integrity.’56 Furthermore, they must be ‘independent in
the performance of their functions and shall not accept or seek instructions from any
48Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious
Dysfunction within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and
004, Cases 003 and 004 (003/07-09-2009/ECCC-D114) and (004/07-09-2009/ECCC-D114),
Office of the Co-Investigating Judges, 21 March 2012 (hereafter Note of the International
Reserve Co-Investigating Judge), § 1.
49Note of the International Reserve Co-Investigating Judge, supra note 48, Section III.
50Ibid. at § 12.
51Ibid. at § 9.
52Judge Siegfried Blunk, supra note 34; Mydans, supra note 34; Judge Kasper Ansermet, supra
note 34; BBC, supra note 34.

53ECCC, supra note 32.
54Ibid.; Open Society Justice Initiative, October 2012, supra note 19, at 2; ECCC, ‘Deployment
of New International Co-Investigating Judge’ (30 July 2012), available at http://www.eccc.

gov.kh/en/articles/deployment-new-international-co-investigating-judge (visited 15 June 2015).
55B. Di Certo, ‘Judge Wants to Restart Case 003’, The Phnom Penh Post (10 February 2012), availa-
ble at http://www.phnompenhpost.com/national/judge-wants-restart-case-003 (visited 15 June 2015).

56Articles 3(3) and 5(2) ECCC Agreement; Article 10(new) Law to Amend the 2001 Law on the
Establishment of the Extraordinary Chambers, 5 October 2004 (hereafter ECCC Law).

Government or any other source.’57 ECCC proceedings must be ‘fair and adversar-
ial and preserve a balance between the rights of the parties.’58 This means that the
Judges must be impartial and not hold preconceptions about what the outcome of a
case should be, but rather adjudicate according to the law in question.59 They must
also remain uninfluenced by the media, public perception and also expectation in
Cambodia.60 The ECCC Code of Judicial Ethics, states that judges should be inde-
pendent, impartial and act with integrity.61 It further states that ECCC Judges ‘shall
not comment on pending cases and shall avoid expressing views which may under-
mine the standing and integrity of the ECCC,’ which is particularly relevant given
some of the accusations made towards the ECCC Judges.62 These standards should
hold true of all judges, but it is particularly relevant to those at the ECCC, who work
in a very difficult environment historically, socially, politically and judicially.
The process of disqualifying a judge from adjudicating on a case, or from sit-
ting in a chamber is similar throughout the international criminal tribunal sys-
tem.63 At the ECCC, an application to disqualify a Co-Investigating Judge is
submitted to the Pre-Trial Chamber, while those applications seeking to disqualify
a judge in the Trial or Supreme Court Chamber must be ‘submitted to the
Chamber in which the judge in question is sitting.’64 The relevant provisions
regarding judicial disqualification include Rule 21 of the ECCC Internal Rules,
which provides that judges must act independently from the Prosecution at the
Court,65 while Rule 34 of the ECCC Internal Rules outlines the process for the
disqualification of judges on the grounds or appearance of impartiality.66 ECCC
Internal Rule 34 is similar to the procedure at other international criminal tribu-
nals, when there is an allegation or instance of judicial bias.67 The Rule provides:
Any party may file an application for disqualification of a judge in any case in which the
Judge has a personal or financial interest or concerning which the Judge has, or has had,
any association which objectively might affect his or her impartiality, or objectively give
rise to an appearance of bias.68
This rule reflects international jurisprudence, which holds that a judge is

presumed to be impartial unless there is proof to the contrary of either perceived
57Ibid.
58Rule 21(a) ECCC Internal Rules; See also International Covenant on Civil and Political Rights
(16 December 1966), Article 14.
59Articles 3(3) and 5(2) ECCC Agreement; Article 10(new) ECCC Law.
60Ibid.
61Articles 1–3 Code of Judicial Ethics, ECCC, 5 September 2008.
62Article 7(2) Code of Judicial Ethics, ECCC, 5 September 2008.
63Acquaviva et al. 2013, at 802.
64Rule 34(5) ECCC Internal Rules.
65Rules 21(1)(a) ECCC Internal Rules.
66Rule 34 ECCC Internal Rules.
67Rule 34 ECCC Internal Rules; Acquaviva et al. 2013, at 802.
54 S.M. Torrens
or actual bias.69 The Furundžija case at the ICTY set the criteria for judicial dis-
qualification and held that a judge is not impartial if it is shown that actual bias
exists or if there is an unacceptable appearance of bias.70 An unacceptable appear-
ance of bias is established if ‘a judge is a party to the case, or has a financial or
proprietary interest in the outcome of the case, or if the Judge’s decision will lead
to the promotion of a cause in which he or she is involved, together with one of the
parties’ or ‘if the circumstances would lead a reasonable observer, properly
informed, to reasonably apprehend bias.’71 A reasonable person is deemed to be
‘an informed person, with knowledge of all of the relevant circumstances, includ-
ing the traditions of integrity and impartiality that form a part of the background
and appraised also of the fact that impartiality is one of the duties that Judges
swear to uphold.’72 The ECCC has held that when considering allegations of judi-
cial bias, there should be a presumption that judges are impartial due to their oath
of office and legal qualifications73 and that ‘[t]he moving party bears the burden of
displacing that presumption, which imposes a high threshold.’74
3.4.2 ECCC Case Law on Allegations of Bias
3.4.2.1 Applications to Disqualify the Trial Chamber
The Ieng Thirith, Ieng Sary and Nuon Chea Defence teams all filed an application
in an attempt to disqualify the Trial Chamber from Case 002, with Ieng Sary also
seeking a stay in proceedings and a public hearing into the matter.75 The primary
69Appeal Judgment, Furundžija, (IT-95-17/1), Appeals Chamber, 21 July 2000 (hereafter
Furundžija Appeal Judgment), §§ 182, 189, 196; Acquaviva et al. 2013, at 782.
70Furundžija Appeal Judgment, supra note 69, § 189.
71Ibid.; Acquaviva et al. 2013, at 802.
72Furundžija Appeal Judgment, supra note 69, § 190.
73Decision on Ieng Thirith, Nuon Chea and Ieng Sary's Applications for Disqualification of
Judges Nil Nonn, Silvia Cartwright, Ya Sokhan, Jean-Marc Lavergne and Thou Mony, Nuon
Chea and others (002/19-09-2007/ECCC-E55/4), Trial Chamber, 23 March 2011, § 12 (hereafter
Trial Chamber Bench Disqualification Decision).
74Trial Chamber Bench Disqualification Decision, supra note 73, § 12; Furundžija Appeal
Judgment, supra note 69, § 197.

75Trial Chamber Bench Disqualification Decision, supra note 73, § 1; Ieng Thirith Defence
Application for Disqualification of Judges Nil Nonn, Silvia Cartwright, Ya Sokhan, Jean-Marc
Lavergne and Thou Mony, Nuon Chea and others (002/19-09-2007/ECCC-E28), Ieng Thirith
Defence, 1 February 2011; Urgent Application for Disqualification of the Trial Chamber Judges, Nuon
Chea and others (002/19-09-2007/ECCC-E54), Nuon Chea Defence, 24 February 2011; Ieng Sary’s
Motion to Join Ieng Thirith and Nuon Chea’s Application for Disqualification of the Trial Chamber
Judges & Ieng Sary’s Motion to Join Ieng Thirith’s Application for the Trial Chamber to be Replaced
for the Trial Chamber to be Replaced—for the Purpose of Adjudicating the Applications—By Reserve
Judges of the Trial Chamber of Additional Judges Chosen by the Judicial Administration Committee,
Nuon Chea and others (002/19-09-2007/ECCC-E53), Ieng Sary Defence, 17 February 2011.
argument was that the Judges’ participation in particular findings in the Duch
Judgment (Case 001) created a reasonable apprehension of bias in their assess-
ment of similar issues in Case 002.76 The Trial Chamber rejected the request for a
public hearing and denied the applications on the basis that they failed to establish
‘a reasonable apprehension of bias based on common issues in Case 002 and the
Duch Judgment.’77 With regards to pre-determinations of guilt as outlined in the
Nuon Chea application, it was held that the Duch Judgment ‘contains no judgment
of Nuon Chea’s criminal intent and therefore could not reasonably be perceived to
reflect a judgement of guilt against Nuon Chea.’78
In another instance more recently, Khieu Samphan filed an application to dis-
qualify President Nil Nonn and Judges Silvia Cartwright, Ya Sokhan, Jean-Marc
Lavergne, You Ottara and Claudia Fenz from Case 002/2 due to concerns regard-
ing impartiality.79 The Nuon Chea Defence also filed an application to disqualify
President Nil Nonn and Judges Ya Sokhan, Jean-Marc Lavergne and You Ottara
from adjudicating on any proceedings against Nuon Chea due to allegations of an
appearance of bias based in part on comments made by the judges in their personal
capacity citing knowledge of political interference at the Court.80 The Khieu
Samphan Defence filed a second application stating that it was adopting the argu-
ments contained in Nuon Chea’s Application but did not seek to disqualify Judge
Cartwright, as by that stage she was no longer a judge at the ECCC.81 The Special
Panel decided unanimously to dismiss Khieu Samphan’s applications regarding
Judge Claudia Fenz.82 Furthermore, the Special Panel decided to dismiss Khieu
Samphan’s applications to disqualify President Nil Nonn and Judges Ya Sokhan,
Jean-Marc Lavergne and You Ottara, by a majority of four judges with Judge
Downing dissenting.83 Finally the Special Panel decided to dismiss Nuon Chea’s
application, also by a majority of four judges with Judge Downing dissenting.84
76Trial Chamber Bench Disqualification Decision, supra note 73, § 1.

77Ibid. at § 19.
78Ibid. at § 24.
79Mr. Khieu Samphan’s Request for Reconsideration of the Need to Await Final Judgment in
Case 002/01 Before Commencing Case 002/02 and the Appointment of a New Panel of Trial
Judges, Nuon Chea and others (002/19-09-2007/ECCC-E314/1), Khieu Samphan Defence,
25 August 2014.
80Nuon Chea Application for Disqualification of Judges Nill Nonn, Ya Sokhan, Jean-Marc
Lavergne, and You Ottara, Nuon Chea and others (002/19-09-2007/ECCC-E314/6), Nuon Chea
Defence, 29 September 2014.
81Renewed Application for Disqualification of the Current Judges of the Trial Chamber Who Are
to Hear Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E314/8), Khieu Samphan
Defence, 10 October 2014.
82Decision on Applications for the Disqualification of Trial Chamber Judges, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E314/12), Trial Chamber, 14 November 2014 (hereafter Decision on

Applications for the Disqualification of Trial Chamber Judges)—Note: Reasons for the decision
were not yet available at the time of writing and the conclusion of this paper in early January 2015.
83Ibid.
84Ibid.
56 S.M. Torrens
3.4.2.2 Applications to Disqualify Judge Marcel Lemonde
Ieng Sary sought to disqualify International Co-Investigating Judge Marcel

Lemonde due to allegations that at a meeting with a staff member of the Office of
the Co-Investigating Judges (OCIJ), he allegedly said: ‘I would prefer that we find
more inculpatory evidence than exculpatory.’85 The Ieng Sary Defence argued that
these words by Judge Lemonde were evidence of actual bias and may also be evi-
dence of an appearance of bias.86 Judge Lemonde responded that he did not
remember saying the words and that if he did, they were not in his mother tongue
and in any event, they would have been in jest.87 He argued that the application
did not establish actual bias, or the appearance of bias and therefore should be
dismissed.88
The Pre-Trial Chamber dismissed Ieng Sary’s application, on the basis that the
evidence presented was not sufficient enough to meet the burden of proof required
to disqualify a judge.89 In particular, the Chamber held that there was a distinct
lack of evidence provided by the individual who witnessed the words being spo-
ken.90 Furthermore, that the meeting was private and Judge Lemonde was speak-
ing in English, which is not his mother tongue, rendered the statements less
influential.91 The Chamber also noted that the statements were said at a point in
the investigating process into Case 002, where it was not unusual for the judges to
have formed an opinion of the evidence collected thus far.92 The Pre-Trial
Chamber notably distinguished the preferences of a judge from a direction or
instruction given by him or her and in this case it was the former.93 There were
85Ieng Sary’s Application to Disqualify Judge Marcel Lemonde and Request for a Public
Hearing, Nuon Chea and others (002/9-10-2009-ECCC/PTC (01)-1), Ieng Sary Defence,
9 October 2009 (hereafter Ieng Sary’s Application to Disqualify Judge Marcel Lemonde &
Related Request for a Public Hearing); Decision on Ieng Sary’s Application to Disqualify
Co-Investigating Judge Marcel Lemonde, Nuon Chea and others (002/09-10-2009/ECCC/PTC
(01)-7), Pre-Trial Chamber, 9 December 2009 (hereafter Lemonde Disqualification Decision),
§ 5; See also Decision on Khieu Samphan’s Application to Disqualify Co-Investigating Judge
Marcel Lemonde, Nuon Chea and others (002/13-10-2009/ECCC/PTC (02)-7), Pre-Trial
Chamber, 14 December 2009 (hereafter Decision on Khieu Samphan’s Application to Disqualify
Co-Investigating Judge Marcel Lemonde).
86Ieng Sary’s Application to Disqualify Judge Marcel Lemonde & Related Request for a Public
Hearing, supra note 85; Lemonde Disqualification Decision, supra note 85, § 6.
87Consolidated Response by Co-Investigating Judge Marcel Lemonde to Applications to
Disqualify Filed on Behalf of Ieng Sary and Khieu Samphan, Nuon Chea and others, Office of
the Co-Investigating Judges, 5 November 2009, § 8 (hereafter Consolidated Response by Co-
Investigating Judge Marcel Lemonde); Lemonde Disqualification Decision, supra note 85, § 7.
88Consolidated Response by Co-Investigating Judge Marcel Lemonde, supra note 87, § 9.
89Lemonde Disqualification Decision, supra note 85, §§ 23 and 26.
90Ibid. at § 20.
91Ibid. at § 22.
92Ibid. at, § 24.
93Idem at, § 25.
further applications made on this issue by Khieu Samphan,94 Ieng Sary and Ieng
Thirith pursuant to Rule 34, seeking to disqualify Judge Marcel Lemonde, but they
were all dismissed.95
3.4.2.3 Applications to Disqualify Judge Silvia Cartwright
The Ieng Sary Defence sought to investigate and disqualify international Trial
Chamber Judge Silvia Cartwright due to alleged ex parte meetings and communi-
cations she had with International Co-Prosecutor Andrew Cayley and the Deputy
Director of Administration Knut Rosandhaug.96 The Deputy Director of
Administration responded that the meetings in question were not inappropriate
because they were concerned with purely administrative and organisational mat-
ters and they did not deal with the substance of cases before the Court.97 The
Nuon Chea Defence also filed a request with the Trial Chamber regarding this sit-
uation, seeking information as to the content of the discussions at the meetings and
in particular whether issues relating to political interference or the Nuon Chea
request for investigations had been raised.98 Nuon Chea’s Defence argued that
Judge Cartwright’s participation in these ex parte meetings with the international
Co-Prosecutor and the Deputy Director of Administration gave rise to an unaccep-
table appearance of bias.99
Similarly, the Ieng Sary Defence submitted that it was possible to infer from
these ex parte meetings, that Judge Cartwright may not have acted independently
at all times in relation to Case 002 and she may be biased in favour of the Office
of the Co-Prosecutors due to the presence of the International Co-Prosecutor at the
94Decision on Khieu Samphan’s Application to Disqualify Co-Investigating Judge Marcel

Lemonde, supra note 85.
95Decision on Ieng Sary’s and on Ieng Thirith Applications under Rule 34 to Disqualify Judge
Marcel Lemonde, Nuon Chea and others (002/11-12-2009/ECCC/PTC (07)-6), Pre-Trial

Chamber, 15 June 2010.
96Ieng Sary’s Request for Investigation Concerning Ex Parte Communications Between the
International Co-Prosecutor, Judge Cartwright and Others, Nuon Chea and others (002/19-09-2007/
ECCC-E137/3), Ieng Sary Defence, 24 November 2011 (hereafter Ieng Sary’s Request for
Investigation Concerning Ex Parte Communications Between the International Co-Prosecutor,
Judge Cartwright and Others).
97Decision on Motions for Disqualification of Judge Silvia Cartwright, Nuon Chea and others
(002/19-09-2007/ECCC-E137/5), Trial Chamber, 2 December 2011, § 3 (hereafter Cartwright

Disqualification Decision).
98Nuon Chea Defence Team’s Urgent Application for Disqualification of Judge Cartwright,
Nuon Chea and others (002/19-09-2007/ECCC-E137/2), Nuon Chea Defence, 21 November

2011 (hereafter Nuon Chea Defence Team’s Urgent Application for Disqualification of Judge
Cartwright).
99Nuon Chea Defence Team’s Urgent Application for Disqualification of Judge Cartwright, supra
note 98, § 15.

58 S.M. Torrens
meetings in question.100 Nuon Chea and Ieng Sary noted that ex parte communi-
cations are prohibited by the Cambodian Code of Judicial Ethics, as well as by
international norms, although the ECCC Code of Judicial Ethics does not explic-
itly prohibit them.101 They argued that ‘Judge Cartwright’s conduct would lead an
objective, reasonably informed observer to doubt her ability to perform judicial
duties independently and impartially.’102 In doing so they cited the absence of
records from these meetings and the fact that Judge Cartwright allegedly failed to
disclose information concerning them.103
The Trial Chamber rejected the application and held that the meetings were
necessary for administration and coordination purposes.104 Ieng Sary’s request
for investigation was rejected, as was his request that the International
Co-Prosecutor be summoned.105 The Trial Chamber also denied Nuon Chea’s
request for immediate and permanent disqualification of Judge Cartwright and
Ieng Sary’s request for a public hearing.106 This was on the basis that judicial dis-
qualification could not be established by allegations without any evidence.107 It
was argued that the mere existence of informal meetings between Judge
Cartwright, the International Co-Prosecutor and the Deputy Director of
Administration did not rebut the presumption that Judge Cartwright is unbiased
and impartial.108 The Supreme Court Chamber dismissed an appeal by the
Defence,109 but advised that judges should consider the make up of future meet-
ings in order to avoid perceptions of bias.110
100Ieng Sary’s Request for Investigation Concerning Ex Parte Communications Between the

International Co-Prosecutor, Judge Cartwright and Others, supra note 96, §§ 26, 31–32.
101Nuon Chea Defence Team’s Urgent Application for Disqualification of Judge Cartwright,
supra note 98, § 10; Ieng Sary’s Request for Investigation Concerning Ex Parte Communications
Between the International Co-Prosecutor, Judge Cartwright and Others, supra note 96, §§ 13, 16,
20, 21 and 28; Cartwright Disqualification Decision, supra note 97, § 6.
102Cartwright Disqualification Decision, supra note 97, § 7.
103Nuon Chea Defence Team’s Urgent Application for Disqualification of Judge Cartwright, supra
note 98, §§ 2, 15–19; Ieng Sary’s Request for Investigation Concerning Ex Parte Communications
Between the International Co-Prosecutor, Judge Cartwright and Others, supra note 96, §§ 24–26,
30–32; Cartwright Disqualification Decision, supra note 97, § 7.
104Cartwright Disqualification Decision, supra note 97.
105Ibid.
106Ibid.
107Ibid. at § 22.
108Ibid.
109Decision on Ieng Sary’s Appeal against the Trial Chamber’s Decision on Motions for
Disqualification of Judge Silvia Cartwright, Nuon Chea and others (002/19-09-2007/ECCC-

E137/5/1/3), Supreme Court Chamber, 17 April 2012.
110Ibid.
Following the appeal, Judge Cartwright was revealed to have engaged in further
ex parte communications with the International Co-Prosecutor via email.111 The
email contained the content: ‘Of Course I was only trying to see the lighter side.
As you know, Andrew, I am seriously considering my own position. I shall not
make a hasty decision [sic]. Silvia.’112 As a result, the Defence made a further
application seeking to disqualify Judge Cartwright on the basis of judicial bias,
arguing that she had disregarded the advice of the Supreme Court Chamber deci-
sion.113 The Trial Chamber ultimately held that the meetings had an administrative
purpose and did not constitute bias.114 The Trial Chamber disregarded the applica-
tion to disqualify Judge Cartwright and denied the request to instruct Judge
Cartwright and Andrew Cayley to ‘cease and desist from continuing ex parte com-
munications and meetings’, to copy the Defence ‘on all future ECCC-related com-
munications between them’ and to disclose all previous ex parte communications
and meetings between them since 24 November 2011.115
The Defence for Nuon Chea filed another application seeking the disqualifica-
tion of Judge Cartwright from proceedings against the Accused on the grounds of
actual or apparent bias and further asked the Trial Chamber that she be stood down
from her position as Trial Chamber Judge until the matter was resolved.116 The
application was supported by an extract from a New Zealand press report,117 in
which she was quoted as saying:
[The Defence Counsel] put more emphasis on disrupting than representing their clients…
It’s a very common strategy by Defence Counsel. There has been an application to accuse
[sic] me twice, once as a member of the entire tribunal and once personally and there have
been other applications to accuse the President, who is Cambodian, and other Cambodian
Judges.118
111Ieng Sary’s Rule 34 Application for Disqualification of Judge Silvia Cartwright, or in the alter-
native, Request for Instruction and Order to Cease and Desist from Ex Parte Communications &
Request for Disclosure of Ex Parte Communications, Nuon Chea and others (002/19-09-2007/
ECCC-E191.1), Ieng Sary Defence, 27 April 2012, § 2 (hereafter Ieng Sary’s Rule 34 Application).
112Ibid.
113Ieng Sary’s Rule 34 Application, supra note 111, § 10.
114Decision on Ieng Sary’s Application for Disqualification of Judge Cartwright, Nuon Chea and
others (002/19-09-2007/ECCC-E191/2), Trial Chamber, 4 June 2012, § 15 (hereafter Decision on

Ieng Sary’s Application for Disqualification of Judge Cartwright).
115Ieng Sary’s Rule 34 Application, supra note 111, § 22; Decision on Ieng Sary’s Application
for Disqualification of Judge Cartwright, supra note 114, § 21.

116Third Application for Disqualification of Judge Cartwright, Nuon Chea and others
(002/19-09-2007/ECCC-E171), Nuon Chea Defence, 14 February 2012 (hereafter Third Application

for Disqualification of Judge Cartwright); Decision on Application for Disqualification of Judge
Silvia Cartwright, Nuon Chea and others (002/19-09-2007/ECCC-E171/2), Trial Chamber, 9 March
2012, § 1 (hereafter Decision on Application for Disqualification of Judge Silvia Cartwright).
117Third Application for Disqualification of Judge Cartwright, supra note 116, § 2; Decision on
Application for Disqualification of Judge Cartwright, supra note 116, § 2.

118Ibid.
60 S.M. Torrens
The Nuon Chea Defence argued that this press report was sufficient evidence of
Judge Cartwright’s actual bias, which could rebut any presumption of impartiality
inherent in her position.119 It was further argued that the interview illustrated
Judge Cartwright’s ‘hostility or ill-will’ towards the Defence’s approach to the
case and was evidence that she had publicly criticised the Defence.120 In addition,
Nuon Chea submitted in-court statements made by Judge Cartwright during the
Trial Chamber proceedings on 30 January 2012, when she allegedly dismissed
questions by Nuon Chea’s Defence Counsel Pestman.121 Nuon Chea submitted
that both individually and cumulatively this evidence indicates that Judge
Cartwright has already formed an unfavourable view of the Nuon Chea Defence
case.122 Further, that the press release read in conjunction with the in-court state-
ments establishes that Judge Cartwright believes that Defence challenges to the
independence of the Court are baseless and that there is no government interfer-
ence at the ECCC.123 It was argued by the Defence that this evidence also proves
that Judge Cartwright believes that ECCC judges are immune to political pressure
and that together this demonstrates that Judge Cartwright had already made up her
mind on these matters, thus constituting bias.124
In light of this, the Nuon Chea Defence argued that Judge Cartwright should
refrain from talking to the press and from expressing her opinions publicly on the
case.125 Finally they concluded that this evidence would lead a reasonable
observer, properly informed to reasonably apprehend a lack of impartiality by
Judge Cartwright,126 therefore she should step down.127 The Trial Chamber dis-
missed the Application, holding that the material presented as evidence did not
meet the high threshold required to rebut the presumption of impartiality held by
Judge Cartwright as a judge of the ECCC.128 The Chamber said that the press
release did not make any reference to a particular accused, but rather, it was

120Ibid.
121Transcript of Hearing on the Substance in Case 002, Nuon Chea and others
(002/19-09-2007/ECCC-E1/35.1), Trial Chamber, 30 January 2012, pp. 75–76; Decision on



124Ibid.



128Decision on Application for Disqualification of Judge Cartwright, supra note 116, § 20.
referring to ‘broad strategies typically employed by counsel, rather than to the case
of any of the Accused.’129 Furthermore, the in-court statements were comments
chastising the Nuon Chea Defence for disregarding directions from the President,
which is an appropriate behavior of a judge, in ensuring the proceedings are con-
ducted appropriately.130
3.4.2.4 Application to Disqualify Judge You Ottara
In another example of alleged judicial bias, the Ieng Thirith and Ieng Sary Defence
teams sought to disqualify Judge You Ottara from the Special Bench.131 This was due
to his previous role on a panel of the Cambodian Supreme Court, which had pro-
duced an opinion, that allegedly lacked legal reasoning as a ‘concession to the Prime
Minister’ and was not a ‘genuine evaluation’ of the merits of the appeal.132 The
Defence argued that ‘Judge Ottara is, or would reasonably be perceived to be, equally
susceptible to government pressure in this case.’133 The application was rejected by
the Trial Chamber, pursuant to a lack of evidence and in addition, the belief that a
judge’s personal opinion on a five person panel could not be identified.134
3.4.2.5 Application to Disqualify Judge Som Sereyvuth
Ieng Thirith, sought to disqualify Judge Som Sereyvuth from the Supreme Court
Chamber for lack of independence and an objective appearance of bias.135 This was
129Ibid. at § 17.
130Decision on Application for Disqualification of Judge Cartwright, supra note 116, § 18.
131Decision on Ieng Thirith and Ieng Sary’s Applications for Disqualification of Judge You
Ottara from the Special Bench and Requests for a Public Hearing, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E63/5), Trial Chamber, 9 May 2011,§ 1 (hereafter Decision on
Ieng Thirith and Ieng Sary’s Applications for Disqualification of Judge You Ottara); Ieng
Thirith Application to Disqualify Judge You Ottara from the Special Bench for Lack of
Independence, Nuon Chea and others (002/19-09-2007/ECCC-E63), Ieng Thirith Defence,
9 March 2011 (hereafter Ieng Thirith Application to Disqualify Judge You Ottara); Ieng Sary’s
Motion to Support Ieng Thirith’s Application to Disqualify Judge You Ottara from the Special
Bench for Lack of Independence & Request for a Public Hearing, Nuon Chea and others
(002/19-09-2007/ECCC-E61/1), Ieng Sary Defence, 18 March 2011.
Ottara, supra note 131, § 4.

133Decision on Ieng Thirith and Ieng Sary’s Applications for Disqualification of Judge You Ottara,
supra note 131, § 5; Ieng Thirith Application to Disqualify Judge You Ottara, supra note 131, § 45.
Ottara, supra note 131, § 15-17.

135Ieng Thirith Application to Disqualify Judge Som Sereyvuth from the Supreme Court
Chamber for Lack of Independence, Nuon Chea and others, Ieng Thirith Defence, 14 March
2011 (hereafter Ieng Thirith Application to Disqualify Judge Som Sereyvuth from the Supreme
Court Chamber), § 4.
62 S.M. Torrens
due to his role on a five person panel of Judges in the domestic judiciary, which
handed down a conviction that was criticised for lacking a legal basis and for being
politically motivated.136 Ieng Sary filed a motion in support of Ieng Thirith’s
Application.137 The application by Ieng Thirith and the motion of Ieng Sary were
dismissed by the Supreme Court Chamber on the basis that an objective observer,
properly informed would not perceive bias and that the application ‘targets the legal
system of Cambodia,’ in addition to all of the judges on the case in question, rather
than solely Judge Sereyvuth.138 The Chamber found that the Accused had failed to
prove that Judge Som Sereyvuth ‘has, or has had, any association which objectively
might affect his or her impartiality, or objectively gives rise to the appearance of
bias.’139 Furthermore, the Chamber was of the opinion that ‘[a]n application to dis-
qualify Judge Som Sereyvuth from Case 002 at the ECCC is not the appropriate
mechanism to address putative errors or shortcomings in a decision of the Supreme
Court of Cambodia in a prior and unrelated case.’140
3.4.2.6 Application to Disqualify Judge You Bunleng
Nuon Chea sought to disqualify National Co-Investigating Judge You Bunleng due
to his alleged bias.141 Ieng Thirith sought to join Nuon Chea’s application.142
Judge You Bunleng was accused of improperly using his judicial power for the
Cambodian government’s agenda and the Defence provided three instances where
this was apparent. These included firstly his alleged refusal to sign OCIJ letters,
secondly his alleged refusal to sign OCIJ summonses to six high ranking
Government officials which was allegedly ‘consistent with contemporaneous com-
ments made by the RCG’s Prime Minister (that he personally blocked the
136Decision on Ieng Thirith’s Application to Disqualify Judge Som Sereyvuth for Lack of
Independence, Nuon Chea and others (002/19-09-2007/ECCC-1/4), Supreme Court Chamber,

3 June 2011, § 2 (hereafter Decision on Ieng Thirith’s Application to Disqualify Judge Som
Sereyvuth); Ieng Thirith Application to Disqualify Judge Som Sereyvuth from the Supreme Court
Chamber, supra note 135, § 4.
137Decision on Ieng Thirith’s Application to Disqualify Judge Som Sereyvuth, supra note 136, §
1; Ieng Sary’s Motion to Support Ieng Thirith’s Application to Disqualify Judge Som Sereyvuth
from the Supreme Court Chamber for Lack of Independence & Request for a Public Hearing,
Nuon Chea and others, Ieng Sary Defence, 18 March 2011.
138Decision on Ieng Thirith’s Application to Disqualify Judge Som Sereyvuth, supra note 136,
§ 15–16.
139Ibid. at § 16.
140Ibid. at § 15.
141Application for Disqualification of You Bunleng, Nuon Chea and others, Nuon Chea Defence,
17 June 2010 (hereafter Application for Disqualification of You Bunleng).

142Defence for Ieng Thirith Adoption of Defence for Nuon Chea’s ‘Application for Disqualification
of You Bunleng’ of 17 June 2010, Ieng Thirith Defence, 22 June 2010.

testimony of certain individuals) and Minister of Information (that, according to

the Government the six summonsed individuals should not testify).’ Thirdly that
he “unsigned” rogatory letters in Cases 003 and 004.’143 The application was dis-
missed by the Pre-Trial Chamber on the basis that the allegations were in various
respects too vague, false and lacking in evidence to establish that Judge You ‘has
acted or appears to have acted without independence or impartiality.’144
3.4.2.7 Application to Disqualify Judge Ney Thol
Nuon Chea sought to challenge Judge Ney Thol’s fitness to serve as a judge at the
ECCC due to his alleged lack of impartiality and independence.145 The Defence
argued that as Judge Ney Thol was a serving member of the Cambodian military
this might raise concerns over the Court’s independence, as this was an associa-
tion, which may affect the Judge’s impartiality.146 Despite this, the Pre-Trial
Chamber found that there was no bias or apprehension of bias with regards to
Judge Ney Thol and the fact that a judge was a member of a political party did not
necessarily mean that his decisions were politically motivated.147 Furthermore, the
Chamber held that when a judge takes office, he is presumed to be free of personal
beliefs, which is a difficult presumption to rebut.148 The Pre-Trial Chamber dis-
missed the application, stating that the evidence submitted by the Defence was
largely commentary from third parties.149 Furthermore, it was ‘more related to the
competence and motivation of the Cambodian judiciary as a whole’ rather than
Judge Ney Thol himself.150
143Decision on Application for Disqualification of Judge You Bunleng, Nuon Chea and oth-
ers (002/17-06-2010/ECCC-PTC (09)-8), Pre-Trial Chamber, 10 September 2010, § 17 (here-

after Decision on Application for Disqualification of Judge You Bunleng); Application for
Disqualification of You Bunleng, supra note 141.
144Decision on Application for Disqualification of Judge You Bunleng, supra note 143, § 55.
145Urgent Application for Disqualification of Judge Ney Thol, Nuon Chea and others, Nuon Chea
Defence, 29 January 2008 (hereafter Urgent Application for Disqualification of Judge Ney Thol).
146Urgent Application for Disqualification of Judge Ney Thol, supra note 145, §§ 12, 24.
147Public Decision on the Co-Lawyer’s Urgent Application for Disqualification of Judge Ney
Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea,
Nuon Chea and others (002/19-09-2007/ECCC-C11/29), Pre-Trial Chamber, 4 February 2008,
§ 28 (hereafter Public Decision on the Co-Lawyer’s Urgent Application for Disqualification of
Judge Ney Thol).
148Ibid.
149Public Decision on the Co-Lawyer’s Urgent Application for Disqualification of Judge Ney
Thol, supra note 147, § 32.

150Ibid.
64 S.M. Torrens
3.4.2.8 Application to Disqualify Judge Nil Nonn
Alongside allegations of judicial bias, corruption has been a similarly longstand-

ing issue at the Court.151 The Ieng Sary Defence sought to disqualify Judge Nil
Nonn due to his alleged corruption, based on his alleged admission that he had
accepted bribes.152 The Defence sought an investigation into the matter, which
arose due to the production of a documentary entitled ‘Cambodia: Pol Pot’s
Shadow.’153 The documentary filmmaker Amanda Pike interviewed Judge Nil
Nonn, who was at that time the President of the Provincial Court Battambang.154
She then wrote an article on the basis of that interview, which stated: ‘Judge Nil…
admits that, yes, he does take bribes—of course—but only after a case is over.
After all, he earns only $30 a month, not nearly enough to provide for his family.
What else, he asks with that toothy grin, is he supposed to do?’155
In 2006, Judge Nil Nonn denied taking part in the interview in question and
also denied taking bribes,156 however his definition of what constitutes a bribe is
questionable. In an interview with the Cambodia Daily he said: ‘if after a trial peo-
ple feel grateful to me and give me something, that’s normal I don’t refuse it…
I’ve settled a case for them and people feel grateful. Living conditions these days
are difficult for me. But if you are talking about pressuring people for bribes—
no.’157 The Trial Chamber rejected Ieng Sary’s application on the basis that the
Defence had failed to satisfy the threshold of Internal Rule 34, further noting that
there was ‘no risk of misconduct in this present case’ and there would be ‘no
apprehension of bias by an objective observer.’158 In its decision, the Trial
Chamber distinguished disqualifying a judge from a case, with removing a judge
due to fitness to serve.159
151Mydans, supra note 13.

152Ieng Sary’s Application to Disqualify Judge Nil Nonn due to his Purported Admission that he
has Accepted Bribes & Request for a Public Hearing or in the Alternative for Leave to Reply to
any Submissions presented by Judge Nil Nonn in Response to this Application, Nuon Chea and
others (002/19-09-2007/ECCC-E5), Ieng Sary Defence, 14 January 2011 (hereafter Ieng Sary’s
Application to Disqualify Judge Nil Nonn).
153Ieng Sary’s Application to Disqualify Judge Nil Nonn, supra note 152, § 7; A. Pike,
‘Cambodia: Pol Pot’s Shadow’, Frontline/Worldline (October 2002), available at http://internatio

nalreportingproject.org/stories/view/cambodia-pol-pots-shadow (visited 15 June 2015).
154Ieng Sary’s Application to Disqualify Judge Nil Nonn, supra note 152, § 8.
155Ibid.
156J. Welsh and Prak Chan Thul, ‘Filmmaker: KR Judge Says He Accepted Cash’, Cambodia
Daily (10–11 June 2006).

157Ibid.
158Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests,
Nuon Chea and others (002/19-09-2007/ECCC-E5/3), Trial Chamber, 28 January 2011, § 17

(hereafter Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn).
159Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn, supra note 158, § 11.
3.5 Allegations of Interference with the Administration

of Justice
3.5.1 Background and Legal Framework
The Defence teams at the ECCC have also raised the issue of interference with the
administration of justice numerous times in applications to the Court, with little
success. According to Internal Rule 35, the ECCC ‘may sanction or refer to the
appropriate authorities, any person who knowingly and wilfully interferes with the
administration of justice at the Court.’160 Examples of this include disclosing con-
fidential information, failing to comply with a court order, destroying evidence,
interfering with witnesses, preventing individuals from complying with an order of
the court or assisting a charged person in evading the jurisdiction of the ECCC.161
When the Co-Investigating Judges or Chambers have reason to believe that a per-
son may have committed any of these acts, they may: deal with the matter sum-
marily, conduct further investigations, refer the matter to the appropriate
authorities in Cambodia or the United Nations.162
3.5.2 ECCC Case Law on Allegations of Political

Interference
3.5.2.1 Hun Sen’s Statements and the Presumption of Innocence
Controversial statements allegedly made by Cambodian Prime Minister Hun Sen

have inspired the unsuccessful utilisation of Rule 35 by the Defence.163 Nuon
Chea sought summary action against Prime Minister Hun Sen pursuant to Rule 35,
due to remarks he allegedly made to the Vietnamese press on 5 January 2012.164 It
was argued by the Defence that these statements were in violation of Nuon Chea’s
right to be presumed innocent, thereby amounting to interference with the admin-
istration of justice.165 Among other remarks, Hun Sen allegedly said:
160Rule 35 ECCC Internal Rules.

163See Application for Summary Action against Hun Sen Pursuant to Rule 35, Nuon Chea
and others (002/19-09-2007/ECCC-E176), Nuon Chea Defence, 22 February 2011 (hereafter

Application for Summary Action against Hun Sen Pursuant to Rule 35).
164Application for Summary Action against Hun Sen Pursuant to Rule 35, supra note 163, § 2.
165Decision on Rule 35 Applications for Summary Action, Nuon Chea and others
(002/19-09-2007/ECCC-E176/2), Trial Chamber, 11 May 2012 (hereafter Decision on Rule 35

Applications for Summary Action); Application for Summary Action against Hun Sen Pursuant
to Rule 35, supra note 163, § 1; Transcript of Hearing on the Substance in Case 002, Nuon Chea
and others (002/19-09-2007/ECCC-E1/46.1), Trial Chamber, 12 March 2012, pp. 80–81.
66 S.M. Torrens
I have heard of the statement of Nuon Chea, a person of important position in the Pol Pot
regime who has been tried in the past weeks. He did not admit to his wrongdoings but
gave lies about the Vietnamese volunteer forces. I consider those statements lies from a
murderer.166
The Defence requested that these remarks be condemned and that the Trial
Chamber ask the Prime Minister to refrain from making such comments in the
future.167 The applications were rejected, with the Trial Chamber arguing that it had
already issued an ‘unambiguous public reminder’ that the Accused had the right to be
presumed innocent and that officials must refrain from making comments that were
incompatible with this right.168 The Chamber was of the belief that no other action
would be needed.169 The Nuon Chea Defence appealed to the Supreme Court
Chamber, however this was dismissed on the basis that there had already been a public
affirmation of the presumption of innocence and the Trial Chamber will not take into
account any public comments concerning the guilt or innocence of the accused.170
3.5.2.2 Allegations of a Kickback Scheme and Other Interference
In another instance, the Nuon Chea Defence alleged a range of longstanding and
ongoing political interference issues at the ECCC.171 This included alleged cor-
ruption at the Court, a kickback scheme, interference with prospective witnesses,
public statements by Prime Minister Hun Sen allegedly interfering in investiga-
tions into Case 002, suggestions that witnesses should not testify and vocal oppo-
sition to cases 003 and 004.172 The Accused sought an independent investigation
into alleged instances of political interference, which was rejected by both the
Trial Chamber and the Supreme Court Chamber.173 Nuon Chea again sought to
166Chum Sopha, ‘Vietnam Helps Revitalize Cambodia: Hun Sen’, TuoiTreNews (5 January 2012).
167Transcript of Hearing on the Substance in Case 002, Nuon Chea and others (002/19-09-2007/
ECCC-E1/24.1), Trial Chamber, 10 January 2012, p. 3: 11–14; Application for Summary Action
against Hun Sen Pursuant to Rule 35, supra note 163, § 1.
168Decision on Rule 35 Applications for Summary Action, supra note 165, § 31.
169Ibid.
170Decision on Nuon Chea’s Appeal Against the Trial Chamber’s Decision on Rule 35
Application for Summary Action, Nuon Chea and others (002/19-09-2007/ECCC-E176/2/1/4),

Supreme Court Chamber, 14 September 2012, § 69.
171Request for Investigation Pursuant to Rule 35, Nuon Chea and others (002/19-09-2007/
ECCC-E82), Nuon Chea Defence, 28 April 2011 (hereafter Request for Investigation Pursuant to
Rule 35).
172Request for Investigation Pursuant to Rule 35, supra note 171; Immediate Appeal against the
Trial Chamber Decision Regarding the Fairness of the Judicial Investigation, Nuon Chea and
others (002/19-09-2007/ECCC-E116/1/1), Nuon Chea Defence, 10 October 2011.
173Decision on Immediate Appeal by Nuon Chea Against the Trial Chamber’s Decision on
Fairness of Judicial Investigation, Nuon Chea and others (002/19-09-2007/ECCC-E116/1/7),

Supreme Court Chamber, 27 April 2012; Decision on Nuon Chea Motions Regarding Fairness
of Judicial Investigation (E51/3, E82, E88 and E92), Nuon Chea and others (002/19-09-2007/
ECCC-E116), Trial Chamber, 9 September 2011.
launch an investigation into the effects of the Cambodian government’s alleged

interference into the fairness of Case 002 and a stay of proceedings.174 This time
the Defence argued that Judge Kasper-Ansermet’s resignation and note were proof
that no Cambodian member of the ECCC was able to act against the govern-
ment.175 This application was rejected by the Trial Chamber and the appeal was
dismissed by the Supreme Court Chamber, with the latter arguing that a full inves-
tigation, which is essentially open ended, was not conducive to judicial action
under Rule 35, agreeing with the Trial Chamber that there was no reasonable basis
to conclude that interference had occurred.176
3.5.2.3 The Alleged Actions of Judge Lemonde
The Ieng Sary Defence made a further application in order to disqualify Judge
Lemonde, this time pursuant to Rule 35.177 The Defence argued that Judge
Lemonde interfered with the administration of justice at the Court on the basis of
comments he made to the OCIJ, allegedly expressing a bias towards the discovery
of inculpatory rather than exculpatory material and other associated issues.178 The
Pre-Trial Chamber held that the application was inadmissible, noting that there are
no procedural rules established at any of the international criminal tribunals,
which hold that a judge can be sanctioned for interference with the administration
of justice.179 Judges can only be disqualified180 and there was not sufficient evi-
dence to reverse the presumption of impartiality.181
174Decision on Application for Immediate Action Pursuant to Rule 35 (E189), Nuon Chea and
others (002/19-09-2007/ECCC-E189/3), Trial Chamber, 22 November 2012 (hereafter Decision
on Application for Immediate Action Pursuant to Rule 35); Application for Immediate Action
Pursuant to Rule 35, Nuon Chea and others (002/19-09-2007/ECCC-E189), Nuon Chea Defence,
25 April 2012 (hereafter Application for Immediate Action Pursuant to Rule 35).
175Decision on Application for Immediate Action Pursuant to Rule 35, supra note 174, § 4;
Application for Immediate Action Pursuant to Rule 35, supra note 174, § 19.
176Decision on Nuon Chea’s ‘Immediate Appeal Against the Trial Chamber Decision on Application for
Immediate Action Pursuant to Rule 35’, Nuon Chea and others (002/19-09-2007/ECCC-E189/3/1/8),
Supreme Court Chamber, 25 March 2013, § 25; Decision on Application for Immediate Action Pursuant
to Rule 35, supra note 174.
177Decision on Ieng Sary’s Rule 35 Application for Judge Marcel Lemonde’s Disqualification, Nuon
Chea and others (002/07-12-2009/ECCC/PTC (06)-5), Pre-Trial Chamber, 29 March 2010 (here-
after Decision on Ieng Sary’s Rule 35 Application for Judge Marcel Lemonde’s Disqualification);
Ieng Sary’s Rule 35 Application for Judge Marcel Lemonde’s Disqualification, Nuon Chea and
others (002/07-12-2009/ECCC/PTC (06)-1), Ieng Sary Defence, 7 December 2009.
178Decision on Ieng Sary’s Rule 35 Application for Judge Marcel Lemonde’s Disqualification,
supra note 177, § 5.

179Ibid. at § 13.
180Ibid.
181Decision on Ieng Sary’s Rule 35 Application for Judge Marcel Lemonde’s Disqualification,

68 S.M. Torrens
3.5.2.4 Allegations Against Foreign Minister Hor Namhong
Nuon Chea submitted an application pursuant to Rule 35, seeking action against
Hor Namhong, Cambodia’s Minister for Foreign Affairs.182 The Defence noted
that remarks by Hor Namhong in the Cambodian press ‘must be seen as an attempt
to unduly influence the Trial Chamber, upcoming witnesses, the Defence, as well
as the general public,’ labelling it ‘interference with the administration of jus-
tice.’183 The comments in question were contained in a statement made by the
Minister on 2 August 2012, when he spoke on the work of the ECCC and on
issues the Defence believes were based on ‘the object of ongoing and extensive
witness examinations before the Trial Chamber.’184 The Defence argued that the
Minister’s statement pressured a witness to publicly racant his testimony, due to
the Minister’s alleged ‘well-documented history of aggressively attempting to
silence those who have spoken publicly regarding his DK-era past.’185
The Defence asked the Trial Chamber to acknowledge that the remarks were an
interference with justice at the ECCC and to ‘publicly rebuke the Foreign Minister
and officially warn him against making any further statements of a similar
nature.’186 The Trial Chamber dismissed the request as it did not consider the lan-
guage of the statement or the circumstances to ‘substantiate, whether directly or
inferentially, any intention on the part of Hor Namhong to interfere with a witness
to ECCC proceedings.’187 The Chamber further reaffirmed that Judges are ‘usually
presumed insusceptible to adverse publicity, especially absent any indication of
such influence in the overall evaluation of the fairness of proceedings.’188
182Rule 35 Request Calling for Summary Action Against Minister for Foreign Affairs Hor
Namhong, Nuon Chea and others (002/19-09-2007/ECCC-E219), Nuon Chea Defence, 13 August
2012 (hereafter Rule 35 Request Calling for Summary Action Against Minister for Foreign Affairs
Hor Namhong).
Namhong, supra note 182, § 1.

184Ibid. at §§ 2, 12.
185Decision on Rule 35 Request Calling for Summary Action Against Minister of Foreign Affairs
Hor Namhong (E219), Nuon Chea and others (002/19-09-2007/ECCC-E219/3), Trial Chamber,
22 November 2012, § 4 (hereafter Decision on Rule 35 Request Calling for Summary Action
Against Minister of Foreign Affairs Hor Namhong).
Namhong, supra note 182, § 23.

187Decision on Rule 35 Request Calling for Summary Action Against Minister of Foreign Affairs
Hor Namhong, supra note 185, § 17.

188Ibid.
3.5.3 Discussion
A study of the applications and decisions at the ECCC relating to allegations of

bias, corruption and interference with the administration of justice illustrates that
the Court’s judges have predominantly held that these allegations were not proven
by the Defence, with the ECCC Chambers repeatedly denying any bias or lack of
independence at the Court. It is however compelling that until recently, none of the
international judges had ever dissented on any of the Court’s decisions on bias or
interference with the administration of justice. As noted above, Judge Downing
dissented on a recent decision in response to a Defence application to dismiss the
Trial Chamber Judges.189 Interestingly, several of the international ECCC judges
have spoken out in a private capacity regarding political interference and bias at
the Court, seemingly contradicting the outcome of these decisions, as noted below.
The question therefore is whether the judges are simply concurring on these deci-
sions due to jointly held views on the issues at hand, or whether the judges are
simply providing a united front in order to protect both their own and the Court’s
integrity, by not dissenting on these issues even if they are not in agreement.
Judge Marcel Lemonde, the original International Co-Investigating Judge at the
Court, published a book in 2013, which highlighted his belief that there was politi-
cal interference by the Cambodian government in the work of the Court and the
Office of the Co-Investigating Judges.190 The Nuon Chea and Khieu Samphan
Defence teams both sought to have the book admitted into evidence in Case
002.191 Nuon Chea argued that ‘[t]he Lemonde Book establishes that, contrary to
its public proclamations, the RGC [Royal Government of Cambodia] does not and
has never respected the independence of the ECCC.’192 In his book, Judge
Lemonde writes: ‘It is clear that behind the Cambodian judges there are people
pulling strings from within the government.’193 Judge Lemonde also observed:
‘Much later I realised that they were one step ahead of us, as they were preparing
for the need to obstruct any proceedings that might be considered politically
embarrassing.’194 Of particular note, he says that all of the international judges at
189Decision on Applications for the Disqualification of Trial Chamber Judges, supra note 82.
190Initial Request to Place Before the Chamber Extracts from the Book Authored by Judge
Marcel Lemonde, Nuon Chea and others (002/19-09-2007/ECCC-E280), Khieu Samphan
Defence, 10 April 2013 (hereafter Request for Lemonde Book Extracts); Request to Consider
Additional Evidence, Nuon Chea and others (002/19-09-2007/ECCC-E189/3/1/7), Nuon Chea
Defence, 15 March 2013 (hereafter Request to Consider Additional Evidence).
191Request for Lemonde Book Extracts, supra note 190; Further Request to put before the
Chamber Extracts from Book Authored by Judge Marcel Lemonde, Nuon Chea and others
(002/19-09-2007/ECCC-E280/2), Khieu Samphan Defence, 8 May 2013; Request to Consider
Additional Evidence, supra note 190.
192Request to Consider Additional Evidence, supra note 190, § 12.
193Ibid. at § 5(a).
194Ibid.
70 S.M. Torrens
the ECCC issued a complaint to Patricia O’Brien, the chief legal adviser to the
UN, regarding concerns over political interference in the work of the Court.195
Judge Silvia Cartwright spoke at the Aspen Institute in 2013 and acknowledged that
the ECCC was established after ‘very difficult and very politicised negotiations.’196
She said that once the Court ‘no longer suited the political ends’ of the Cambodian
Government ‘the leaders have done as much as they can to neutralise the tribunal and
keep it within the boundaries that they would like to see it.’197 Of the Cambodian legal
officers at the Court, she said ‘there is no way that they are independent because there
is such a hierarchical social model there that they would never contradict one of the
judges.’198 Judge Cartwright said that the Court is ‘susceptible to political interference’
and the proceedings have shown ‘how a ‘fairish’ trial can be conducted … it’s really
difficult in this environment.’199 Following the publication of these comments, seem-
ingly calling into question the independence of the Court, the Nuon Chea Defence
filed a motion to admit the video recording of this speech into evidence along with the
Lemonde book.200 The Defence argued that the video was proof of judicial bias and
political interference at the Court,201 and unsuccessfully sought to disqualify the Trial
Chamber judges in part based on this evidence and the Lemonde book.202
In light of these comments made by the international judges at the ECCC, an
assessment of the Court’s decisions relating to bias and political interference takes
on an additional dimension outside a mere assessment of the text alone. The deci-
sions claim that there is no political interference or bias at the Court, however the
judges have stated otherwise in their personal capacity. It is possible that the
ECCC judges are shielding themselves from criticism directed towards their integ-
rity and are also protecting the Court from similar scrutiny. The decisions seem
reasonable legally speaking, however this additional information from the judges,
expressing their personal views that there is political interference at the Court,
contrary to the opinions held in the decisions, calls the integrity of the ECCC and
the judicial process that created these decisions into question. In this context it is
also important to reiterate that ECCC Judges, whilst being able to ‘exercise their
freedom of expression … in a manner … that does not affect or appear to affect
judicial independence or impartiality,’ including participation in public debate,
‘shall not comment on pending cases and shall avoid expressing views which may
undermine the standing and integrity of the ECCC.’203
195Ibid. at § 22.
196S. Cartwright, ‘Trying Atrocity Crimes: The Khmer Rouge Trials, Transitional Justice and the
Rule of Law’, The Aspen Institute (7 November 2013), available at http://www.aspeninstitute.org/
video/trying-atrocity-crimes-khmer-rouge-trials-transitional-justice-rule-law (visited 15 June 2015).
197Ibid.
198Ibid.
199Ibid.
200Nuon Chea Application for Disqualification of Judges, supra note 80.
201Nuon Chea Application for Disqualification, supra note 200, §§ 11, 12, 37.
202Decision on Applications for the Disqualification of Trial Chamber Judges, supra note 82.
203Article 7 Judicial Ethics.
3.6 Impediments to the Judicial Process
Given the history of the Khmer Rouge Regime in Cambodia204 and the alleged
corruption and government bias currently hindering the judiciary in the country,205
it is therefore not surprising that the ECCC has been subjected to claims of judicial
bias and political interference, in particular because the Court is part of the
Cambodian judiciary.206 In this way, the Cambodian domestic legal environment
has arguably bled into the work and perceptions of the ECCC, or at the very least
rendered political interference and judicial bias very live issues for both the inter-
national community and Cambodians. With respect to judicial independence, it is
also possible that with a backdrop such as the Khmer Rouge atrocities that
affected everyone in the country during that period,207 it may be difficult to have
true impartiality by any Cambodian judge relating to crimes committed by the
Khmer Rouge. This is due to the fact that the majority of Cambodians would have
either been directly affected by the hostilities or would know someone who was
impacted by the crimes committed, in what was a ‘collectively lived experi-
ence.’208 This reality arguably undermines the presumed impartiality209 any
Cambodian judge at the ECCC brings to the office.
The involvement of nation states in the establishment and functioning of inter-
national tribunals and courts renders these judicial structures susceptible to often
detrimental international political dynamics, with some calling them ‘new political
actors on the domestic and international stage.’210 International courts are highly
dependent on states, particularly with regards to their funding,211 the implementa-
tion of judgments, the capture of indicted individuals, the imprisonment of con-
victed individuals and other logistical assistance.212 Due to this involvement, it is
not uncommon for states to ‘regard international courts as yet another interna-
tional institution, vulnerable to the push and pull of diplomacy and politics.’213
Speaking on the political environment in which international tribunals work, for-
mer ECCC International Co-Prosecutor Andrew Cayley believes that one of the
most important traits that an international Prosecutor must possess is ‘[d]ealing
204See generally Tyner 2008.

205Etcheson 2005, at 171.
206Duch Decision on Request for Release, supra note 4, at § 10.
207Chandler 2009, at 197.
208Ibid.
209Trial Chamber Bench Disqualification Decision, supra note 73, § 12.
210See Alter 2014, at 4–5.
211Acquaviva et al. 2011, at 523.
212Ibid.
213Terris et al. 2007, at 156.
72 S.M. Torrens
with the choppy waters of the political context in which he or she operates.’214 He
acknowledges that states exert influence behind the scenes, which is often
denied.215 As opposed to denying that politics is a part of international justice,
Cayley says that ‘we have to accept that we live in the real world, where politics
plays a part in these special courts.’216
As a hybrid court that exists within the Cambodian legal system,217 the ECCC is
particularly susceptible to political interference. This hybrid structure218 in addition
to the detrimental political climate in Cambodia undoubtedly provides a considera-
ble opportunity for the Cambodian government to interfere in the workings of the
Court. Hybrid courts such as the ECCC and the Special Court for Sierra Leone219
are beneficial responses to international justice, focusing on ‘cooperation and collab-
oration between all the actors involved,’ with the local country placed in the position
of collaborator rather than solely being an object of the court, as is the case with UN
ad hoc tribunals.220 However, this involvement does bring with it the detriment of an
increased likelihood of political interference due to the prominence of the local gov-
ernment in the establishment and workings of the court.221 Furthermore, as a hybrid
court, the ECCC does not receive regular funding from UN member states, as is the
case with the UN ad hoc tribunals, but rather survives on irregular voluntary contri-
butions.222 This creates a degree of uncertainty in the work of the Court and its
future.223 In particular, these funding issues have raised concerns over whether the
Court will have the necessary funds to complete its mandate.224
3.7 Concluding Remarks
The applications and decisions discussed in this chapter, focusing on the issues
of alleged political interference and judicial bias at the ECCC, illustrate a long-
standing pattern at the Court whereby the Defence seeks judicial disqualification
or investigation into these issues, only to have the applications repeatedly rejected.
214Global Brief, ‘On International Criminal Justice: Interview with Andrew Cayley’ (9 September
2011), available at http://globalbrief.ca/blog/2011/09/09/on-international-criminal-justice/ (visited

15 June 2015).
215Ibid.
216Ibid.
217Duch Decision on Request for Release, supra note 4, at § 10.
218Ehlert 2013, at 191.
219SCSL Agreement.
220Martin-Ortega and Herman 2012, at 84.
221See generally Open Society Justice Initiative, supra note 12.
222Tortora 2013, at 109.
223Wierda and Triolo 2012, at 131.
That the requests contained in these applications have been largely dismissed
does not necessarily mean that the applications were not warranted. The dismissal
of the applications could speak to too many frivolous applications made by the
Defence on these issues, or perhaps alternatively it is possible that the Court is
dealing with these applications in an overly cautious manner in order to prevent
undermining its own legitimacy and to protect its judicial integrity. Ultimately
it is not the quantity of defence applications that will undermine the Court, but
rather the integrity of the Chamber’s response to them through its decisions.
Problematically the integrity of these decisions has been called into question in
light of personal statements made by two international judges at the ECCC, Judge
Cartwright and Judge Lemonde, both noting that they have witnessed political
interference in the Court despite the fact that the Court’s decisions deny this fact.
A hybrid court established in order to prosecute the crimes committed by the
Khmer Rouge regime is of immense value to the people of Cambodia and to the
national reconciliation process in that country. However, the continued allegations
of political interference, bias and corruption within the ECCC, have become a
considerable corrosive weakness and a challenge to the Court’s legacy and integ-
rity. This has detracted from the positive perception of the Court internationally
and its contribution to international justice. Such allegations must be addressed in
a more pragmatic way going forward, through greater dialogue and collaboration
between the UN and the Cambodian government and also the national and interna-
tional sides of the Court. This must be kept in mind as the Court navigates through
the investigations and possible trials of Cases 003 and 004 and towards the end
of its mandate. If these cases are not completed, the ECCC will face considerable
criticism internationally and domestically over its credibility as a legitimate court.
Furthermore, the victims of the Khmer Rouge will not see justice for the crimes
that were committed against them, with only three at the most individuals con-
victed for all of the Khmer Rouge atrocities.
The integrity of the ECCC and its trials is important for the purposes of reform-
ing the legal system in Cambodia following its destruction during the Khmer
Rouge period. When the Court closes, it should be an example to the Cambodian
people of the rule of law and justice in practice. It is the responsibility of the inter-
national community to see that justice is done for the Cambodian people and this
cannot be achieved through a lens of political interference and alleged judicial
bias. The success of the ECCC will be based on the credibility and independence
of the Court and the impartiality and integrity of the judges. This is the standard
Cambodians and the United Nations should hold the ECCC to and it is also what
we should hope for international justice to achieve more broadly across a range
of different international courts and tribunals. The legitimacy of the ECCC as a
judicial institution is similarly important for the future of international criminal
justice and hybrid institutions more generally. What we learn from the successes
and failures of the ECCC will likely be emulated or retracted from future courts of
a similar nature.
As for the future of the Extraordinary Chambers in the Courts of Cambodia,
the emphasis should be on positive transformation rather than the repetition of
74 S.M. Torrens
previous mistakes. There is no doubt that the ECCC has faced considerable politi-
cal pressure due to its hybrid nature, with the Court situated within the Cambodian
legal system and required to conduct its work in a politically volatile Cambodia.
However despite the many accusations levelled at the ECCC and the impedi-
ments it faces, in the time that it has left, the Court could reframe its legacy into
something far more positive than is currently the case. The ECCC could become a
court, which overcame major domestic and international political pressure due to
the nature of its establishment as a hybrid model of justice, in the challenging con-
text of a post Khmer Rouge Cambodia and in doing so served as a positive exam-
ple for future international courts, particularly those of a hybrid variety. For this
to be the case, the ECCC must be a judicial institution that responds effectively
to the political interference it faces because it adheres to the rule of law and judi-
cial independence. If such a shift occurs, the ECCC can make a significant contri-
bution to seeing that justice is done in Cambodia and that the Cambodian people
have a far better future than the one they saw for themselves between 1975–1979
when the Khmer Rouge was in power.
References
Acquaviva G, Cassese A, Fan M, Whiting A (2011) International Criminal Law: Cases and
Commentary. Oxford University Press, Oxford
Acquaviva G, Combs N, Heikkilä M, Linton S, McDermott Y, Vasiliev S (2013) Trial Process. In:
Sluiter G, Friman H, Linton S, Vasiliev S, Zappalà S (eds) International Criminal Procedure:
Principles and Rules. Oxford University Press, Oxford, pp 489–939
Alter K (2014) The New Terrain of International Law: Courts, Politics. Princeton University
Press, Princeton, Rights
Barria L, Roper S (2010) Mechanisms of Transitional Justice. In: Barria L, Roper S (eds) The
Development of Institutions of Human Rights: A Comparative Study. Palgrave Macmillan,
New York, p 314
Bassiouni M (2013) Introduction to International Criminal Law, 2nd edn. Brill, Leiden
Cerone J (2009) U.S. Attitudes Toward International Criminal Courts and Tribunals. In: Romano
C (ed) The Sword and the Scales: The United States and International Courts and Tribunals.
Cambridge University Press, New York, pp 131–185
Chandler D (2009) Cambodia Deals with its Past: Collective Memory, Demonisation and
Induced Amnesia. In: Khazanov A, Payne A (eds) Perpetrators, Accomplices & Victims:
Reckoning with the Past. Routledge, New York, pp 194–205
Crowe D (2014) War Crimes, Genocide and Justice: A Global History. Palgrave Macmillan, New York
Curley M (2013) Developments in Cambodian Democracy: Democratic Consolidation or
Authoritarian Durability. In: Fung E, Drakeley S (eds) Democracy in Eastern Asia: Issues.
Problems and Challenges in a Region of Diversity, Routledge, New York, pp 136–158
Ehlert C (2013) Prosecuting the Destruction of Cultural Property in International Criminal Law
with a Case Study on the Khmer Rouge’s Destruction of Cambodia’s Heritage. Martinus
Nijhoff Publishers, Leiden
Etcheson C (2005) After the Killing Fields: Lessons from the Cambodian Genocide. Greenwood
Publishing Group, Westport
Leang C, Smith W (2010) The Early Experience of the Extraordinary Chambers in the Courts
of Cambodia. In: Bellelli R (ed) International Criminal Justice: Law and Practice from the
Rome Statute to its Review. Ashgate Publishing, Surrey, pp 143–169
Martin-Ortega O, Herman J (2012) Hybrid Tribunals: Interaction and Resistance in Bosnia and
Herzegovna and Cambodia. In: Richmond O, Mitchell A (eds) Hybrid Forms of Peace: From
Everyday Agency to Post-Liberalism. Palgrave Macmillan, New York, pp 73–88
Peou S (2013) Mass Atrocities in Cambodia Under the Khmer Rouge Regime of Terror.
In: Ganesan N, Kim S (eds) State Violence in East Asia. University Press of Kentucky,
Lexington, pp 129–159
Terris D, Romano C, Swigart L (2007) The International Judge: An Introduction to the Men and
Women Who Decide the World’s Cases. Brandeis University Press, Lebanon
Tortora G (2013) The Financing of the Special Tribunals for Sierra Leone, Cambodia and
Lebanon. In: Rothe D, Meernik J, Ingadóttir T (eds) The Realities of International Criminal
Justice. Martinus Nijhoff Publishers, Leiden, pp 93–124
Tyner J (2008) The Killing of Cambodia: Geography. Ashgate Publishing, Hampshire, Genocide
and the Unmaking of Space
Wierda M, Triolo A (2012) The Funding of International Criminal Tribunals. In: Reydams L,
Wouters J, Ryngaert C (eds) International Prosecutors. Oxford University Press, Oxford,
pp 113–171
Chapter 4
The 1979 Trial of the People’s Revolutionary
Tribunal and Implications for ECCC
Frank Selbmann
Abstract In August 1979 a trial in absentia was held against Pol Pot and Ieng
Sary at the so-called People’s Revolutionary Tribunal in Phnom Penh. The trial
was inconsistent with fair trial standards, namely the right to a proper defence.
Ieng Sary was found guilty of genocide and sentenced to death. This raises the
question, whether the indictment of the ECCC violated the principle of ne bis in
idem. Further the question if Ieng Sary could benefit from a 1996 Royal pardon
was decisive for the ECCC. The article gives an overview of the 1979 proceedings
at the People’s Revolutionary Tribunal and analyzes the consequences for the trial
against Ieng Sary at the ECCC. The author argues that Ieng Sary could be legiti-
mately be indicted by the ECCC. Neither the principle of ne bis in idem nor the
amnesty could shield Ieng Sary from prosecution.
Keywords Revolutionary tribunals · Human rights · Genocide · Crimes against

humanity · Ne bis in idem · Pardon · Amnesties · In absentia trials
Dr. jur. Frank Selbmann is Attorney-at-Law in Leipzig, Germany.
F. Selbmann (*)
Rechtsanwälte Dr. Selbmann, Bergert & Hägele PartmbB, Leipzig, Germany
e-mail: selbmann@selbmann-partner.de

DOI 10.1007/978-94-6265-105-0_4
78 F. Selbmann
Contents
4.1 Introduction.......................................................................................................................... 78
4.2 The Findings of the ECCC................................................................................................... 79
4.3 The Trial of Pol Pot and Ieng Sary at the People’s Revolutionary Tribunal........................ 81
4.3.1 Preparation of the Trial and Support of the East German Office
of the State Prosecutor General.................................................................................. 81
4.3.2 Legal Basis of the PRT.............................................................................................. 82
4.3.3 The Trial..................................................................................................................... 83
4.4 Compliance with Internationally Recognized Human Rights Standards............................. 84
4.4.1 Admissibility of Trials in Absentia............................................................................ 84
4.4.2 Consequences for the 1979 Trial Against Pol Pot and Ieng Sary.............................. 88
4.4.3 Other Aspects............................................................................................................. 90
4.4.4 Interim Result............................................................................................................ 93
4.5 The Principle of Ne Bis in Idem and the Proceedings Against Ieng Sary at the ECCC...... 94
4.5.1 General Considerations.............................................................................................. 94
4.5.2 The Principle of Ne Bis in Idem at the ECCC........................................................... 95
4.6 Consequences from the Royal Pardon for the Proceedings Against Ieng Sary................... 97
4.7 Conclusion........................................................................................................................... 99
References................................................................................................................................... 100
4.1 Introduction
From 15 to 19 August 1979 a trial in absentia was held against Pol Pot and Ieng
Sary at the so called People’s Revolutionary Tribunal (hereinafter: PRT) in Phnom
Penh for their participation in the crimes committed by the Khmer Rouge. Both
accused were found guilty of genocide and sentenced to death.1 Ieng Sary was
Minister for Foreign Affairs in the so called Democratic Kampuchea and third in
the hierarchy of the Khmer Rouge. After the Vietnamese intervention in January
1979, the Khmer Rouge fought a civil war in Cambodia. In July 1994 the
Cambodian government issued a ‘Law on the Outlawing of the Democratic
Kampuchea Group’, which declared the Khmer Rouge a criminal organisation.2
Membership in the ‘Democratic Kampuchea’ group, in other words the Khmer
Rouge, was made punishable. The 1994 Law does not include crimes under inter-
national law. In 1996 the Cambodian king Sihanouk, upon an initiative of the
Co-Prime Minister Hun Sen, issued a royal pardon for Ieng Sary.3 The pardon
encompasses the sentence of the 1979 PRT judgment including the confiscation of
property and the prosecution under the 1994 Law Outlawing the Democratic
1Judgment of the Revolutionary People’s Tribunal held in Phnom Penh from 15 to 19 August
1979, UN Doc. A 34/491, 20 September 1979.
2Law on the Outlawing of the ‘Democratic Kampuchea’ Group, 14 July 1994, available
at http://www.eccc.gov.kh/en/documents/legal/law-outlaw-democratic-kampuchea-group (visited
15 June 2015).
3Royal Decree, NS RKT/0996/72, 14 September 1996, available at http://www.eccc.gov.kh/sites/
default/files/legal-documents/pardon_for_ieng_sary.pdf (visited 15 June 2015).

4 The 1979 Trial of the People’s Revolutionary Tribunal … 79
Kampuchea Group.4 Because of the pardon, Ieng Sary and his henchmen defected
to the Royal government.5 The amnesty was an important step to bring the civil
war to an end.6 Pol Pot died in April 1998. Ieng Sary was arrested on 12
November 2007 on an arrest warrant issued by the ECCC.7 On 15 September 2010
the Co-Investigating Judges of the ECCC charged Ieng Sary with crimes against
humanity, genocide by killing members of the ethnic groups of Vietnamese and
Cham, grave breaches of the Geneva Conventions, and violations of the 1956
Penal Code.8 Ieng Sary died in Phnom Penh on 14 March 2013 before the first part
of the trial at the ECCC against him was concluded. In all stages of the proceed-
ings Ieng Sary argued that his detention and the proceedings against him violated
the principle of ne bis in idem. In addition, he invoked the Royal pardon. This arti-
cle assesses the arguments of the different ECCC organs, why the principle of ne
bis in idem should not be applicable. To that end, it is necessary to take a close
look on the PRT proceedings. The main documents of the 1979 trial were system-
atically made accessible during the 1990s and are now published, so they can form
the basis for a discussion of the PRT.9 Other documents, which were not assessed
by the ECCC, can be found in the Federal German Archives.
4.2 The Findings of the ECCC
When the ECCC was founded, observers feared that national and international
judges might disagree on the question whether the prosecution of Ieng Sary was
precluded by the principle of ne bis in idem or the Royal pardon.10 Although this
argument was brought by the defence at all stages of the proceedings, the ECCC
concluded that the principle ne bis in idem was not applicable and the Royal par-
don did not shield Ieng Sary from criminal proceedings. In the Provisional
Detention Order the Co-Investigating Judges followed a formal approach.
According to them the principle of ne bis in idem is not absolute.11 In addition
they argued that Ieng Sary was not charged with genocide and the 1979 judgment
covered different acts than the acts charged by the ECCC.12 An appeal against the
4Ibid., Article 1.
5Fawthrop and Jarvis 2004, at 137.
6Menzel 2006, at 449.
7The arrest was affirmed few days later by the Provisional Detention Order, Nuon Chea and
others (002/19-09-2007/ECCC-C11/1), Co-Investigating Judges, 19 September 2007.

8Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427), Office of the
Co-Investigating Judges, 15 September 2010.

9De Nike 2000.
10Ambach 2006, at 173–174.
11Provisional Detention Order, supra note 7, at § 7.
12Ibid., § 8, 10.
80 F. Selbmann
Provisional Detention Order was dismissed by the Pre-Trial Chamber (hereinafter

‘PTC’) on 17 October 2008. The PTC held, at the initial stage of the proceedings
the relevant material facts and the relevant charges have not enough crystallized.13
In the Closing Order the Co-Investigating Judges argued, after an analysis of
the available materials, that it had to be considered that in the 1979 proceedings
fair trial principles were violated. They added, it remained unclear what were the
legal elements of the 1979 ‘genocide’ charges and which modes of responsibility
led to the conviction.14 An appeal was rejected by the PTC on 11 April 2011. The
PTC held that the PRT was founded on a questionable legal basis, that the separa-
tion of powers was not ensured, and that several members of the PRT were not
impartial, that the defence counsels appointed to Ieng Sary in absentia were biased
and acted against the accused, and that the length of the proceedings indicated that
guilt was predetermined.15 In its decision on preliminary objections of 3
November 2011 the Trial Chamber (hereinafter ‘TC’) shared this view.16 The PTC
asserted that Article 14(7) ICCPR only applies in domestic legal proceedings and
the ECCC was an internationalized court.17 The Supreme Court Chamber (herein-
after ‘SCC’) dismissed an interlocutory appeal on 20 March 2012 as inadmissible.
The international judges Klonowiecka-Milart and Jayasinghe dissented. The
majority followed the formal approach, that there was no general right to an inter-
locutory appeal at the ECCC.18 The dissenting judges argued that the SCC should
follow the practice of other international and internationalized tribunals and exam-
ine the appeal under its discretionary power. There should be an immediate resolu-
tion of the question, since the accused was held in custody pending trial. In case
that the SCC came to the conclusion that there was a violation of the principle of
ne bis in idem, the accused was subjected to groundless detention. The principle
protects not only against multiple convictions, but also against multiple trials.19
Since the SCC declined to render a decision on the merits of the interlocutory
appeal, and Ieng Sary died before a judgment was delivered, there is no final deci-
sion. The SCC therefore missed the chance to decide this question. It is notewor-
thy however, that the national and international judges did not disagree on the
question whether the proceedings against Ieng Sary should continue.
13Public Decision on Appeal Against Provisional Detention Order of Ieng Sary, Nuon Chea and
others (002/909-2007/ECCC-C22/I/73), Pre-Trial Chamber, 17 October 2008, at § 53.
14Closing Order, supra note 8, at § 1332.
15Public Decision on Ieng Sary’s Appeal against the Closing Order, Nuon Chea and others
(002/19-09-2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 163–175.

16Decision on Ieng Sary’s Rule 89 Preliminary Objections (ne bis in idem and amnesty and
pardon), Nuon Chea and others (002/19-09-2007/ECCC-E51/15), Trial Chamber, 3 November

2011, § 30.
17Ibid., at § 31.
18Decision on Appeal against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary
Objection (ne bis in idem and amnesty and pardon), Nuon Chea and others (002/19-09-2007/
ECCC-E51/15/1/2), Supreme Court Chamber, 20 March 2012.
19Ibid., Dissenting Opinion of judges Klonowiecka-Milart and Jayasinghe, § 3–5.
4.3 The Trial of Pol Pot and Ieng Sary at the People’s

Revolutionary Tribunal
4.3.1 Preparation of the Trial and Support of the East

German Office of the State Prosecutor General
The preparation of the trial began shortly after the assumption of power of the new
Cambodian government in spring 1979, when Vietnamese authorities founded a
commission for the preparation of the proceedings led by the Vietnamese State
Prosecutor General Tran Huu Duc.20 Western states did not offer support for the
trial.21 The reason for the absence of international interest was Cold War poli-
tics.22 The support of the Office of the East German State Prosecutor General is a
fact that was not disclosed in 1979.23 This office was not only a law enforcement
agency, but also an institution that executed the political will of the East German
ruling party SED.24 The Vietnamese prosecutors consulted their German col-
leagues because of their experience in investigating national-socialist atrocities.
The GDR used these proceedings as a tool for further international recognition.25
Similarly, the new Vietnamese backed Cambodian government used the PRT and
its outcome as an instrument for acceptance.26 In the light of these similarities the
Vietnamese authorities could rely on the experience of the East Germans in how to
use war crime trials as a political tool. Unlike West Germany, East Germany pros-
ecuted Nazi crimes as crimes against humanity and not as ordinary crimes under
the Criminal Code. The definition of crimes against humanity used in these pro-
ceedings was consistent with customary international law, but in the proceedings
fair trial guarantees were often violated.27 Two examples are the judgments against
Hans Globke28 and Horst Fischer.29 In both cases the High Court of the GDR
applied the IMT-Statute directly. Globke was the personal adviser to the Federal
Chancellor Konrad Adenauer from 1953 to 1963. The trial against Globke was
politically motivated and aimed to weaken the Adenauer administration.30 But as a
civil servant in the Ministry of Interior Globke was in fact involved in the persecu-
tion of Jews. In addition he published a Commentary on the 1935 Nuremberg Law,
20See Foth 1979a, at 13.

21Dyrchs 2008, at 50.
22De Nike 2008, at 210.
23Foth1979b, at 3.
24Staadt 2009, at 23.
25Weinke 2002, at 343.
26See the detailed analysis in Selbmann 2011, at 459.
27Werle 2009, at 290.
28OG (High Court of the GDR) Judgment of 23 July 1963, in 17 Neue Justiz (1963) 449–512a.
29OG (High Court of the GDR) Judgment of 25 March 1966, in 20 Neue Justiz (1966) 193–206.
30See Dirks 2006, at 67; Meseke 2005, at 66.
82 F. Selbmann
which led to a harsher interpretation of the term Rassenschande than intended by

the drafters of the law.31 Globke was sentenced by the East German High Court in
absentia to lifelong imprisonment. The sentence was never carried out. Horst
Fischer was a physician in Auschwitz. For his participation in the extermination of
the Eastern European Jews he was found guilty of crimes against humanity and
sentenced to death and later executed. On the one hand, critics see in the Fischer
trial an attempt to give an answer to the Western German Auschwitz trial, which
resulted in the eyes of Eastern German officials in too lenient sentences.32 On the
other hand, prosecutors involved in the proceedings argued that such trials needed
an extensive preparation and depended on the cooperation of foreign states.33 In
1968, East Germany adopted a new Criminal Code, which included crimes against
humanity.34
From 9 April to 24 April 1979 the East German State Prosecutor General Josef
Streit visited Vietnam. During the meeting with Vietnamese prosecutors it was
agreed to send a legal adviser for the preparation of the trial against Pol Pot and
Ieng Sary to Vietnam and Cambodia.35 Streit choose prosecutor Carlos Foth for
the assignment. This decision was presumably made because Foth was involved in
the proceedings against Hans Globke. He collected material against Globke and
led a working group that drafted the indictment.36 The East German prosecutor
had the intention to use the Globke trial as a blueprint for the PRT. This plan
mostly failed since the Vietnamese prosecutors did not use all of the ideas brought
by their Eastern German colleague.
4.3.2 Legal Basis of the PRT
The legal basis for the 1979 trial is the Decree Law No. 1 for the ‘Establishment of
the People’s Revolutionary Tribunal at Phnom Penh to Try the Pol Pot Ieng - Sary
Clique for the Crime of Genocide’.37 The term ‘clique’ was presented in the pro-
ceedings before the ECCC as an indication that the PRT was not impartial.38 The
inclusion of ‘clique’ was a proposal of Carlos Foth. His intention was to make
31Arendt 2006, at 128; Bevers 2009, at 31–33.

32Dirks 2006, at 330.
33Wieland 2003, at 115.
34Meseke 2005, at 67.
35For a more detailed overview see Selbmann 2011, at 456.
36Ibid. See also De Nike 2008, at 40, who interviewed Carlos Foth earlier than the author and
came to the same conclusion.

37Decree Law No. 1, Establishment of People’s Revolutionary Tribunal at Phnom Penh to Try the
Pol Pot Ieng Sary Clique for the Crime of Genocide, Doc. No. 1.01.
38See Civil Party Co Lawyers’ Joint Response to Appeal of Ieng Sary against the Provisional
Detention Order, Nuon Chea and others (002/19-09-2007/ECCC-C22/I/35), Civil Party Co-Lawyers,
19 May 2008, § 24.
clear that the investigations are not limited to Pol Pot and Ieng Sary.39 ‘Pol Pot -
Ieng Sary Clique’ was generally used for the Khmer Rouge by official Vietnamese
and East-German sources.40 Article 1 PRT-Law determines the subject-matter
jurisdiction of the PRT. The court was solely established for the prosecution of the
genocide committed by the Khmer Rouge. Article 8 refers to the Genocide
Convention and declares it expressly as retroactively applicable. According to
Article 3(1) PRT-Law the tribunal was composed of a presiding judge and ten lay
judges. According to Article 5(1) PRT-Law the indictment and the decision to put
a person on trial was supposed to be presented to the accused at least 7 days before
the start of the court proceedings. The accused had the right to be represented by a
lawyer. The tribunal was authorized to appoint a lawyer if necessary.41 Trials in
absentia were admissible. Fugitives accused were to be assigned a defence law-
yer.42 Remedies against the judgment were not admissible.43
4.3.3 The Trial
By Decree Law No. 4 of 20 July 1979 Keo Chanda was appointed as presiding
judge.44 Chanda, who had emigrated to Vietnam in 1973,45 was at the time of the
trial Minister for Information, Press and Culture of the new Cambodian govern-
ment (National United Front for the Salvation of Kampuchea) and a member of the
so called Revolutionary Counsel. The presiding judge issued the Rules of
Procedure on 4 August 1979.46 The trial took place from 15 to 19 August 1979.
The Public Prosecutor General of Vietnam desired the trial start on 15 August in
order to have the documents of the trial available for the meeting of the Non-
Aligned Movement and the session of the General Assembly of the United Nations
in September 1979.47 29 foreign journalists were accredited to the trial.48
Representatives of foreign courts and non-governmental organizations, especially
39Foth 1979a, at 13 f.
40See the protocols of the sessions of the UN Security Council UNSCOR, 2108 session,
11 January 1979, at 12 (Vietnam), S/PV/2108 (1979); UNSCOR, 2109 session; 11 January 1979,
at 8 (GDR), S/PV/2109 (1979).
41Article 5(2) PRT-Law.
42Article 6(1) PRT-Law.
43Article 7 PRT-Law.
44De Nike 2000, Decree Law No. 4: Appointment of Presiding Judge and Alternate, Doc. No. 1.02.
45Mosyakov 2004, at 16–17.
46De Nike 2000, Presiding Judge, Decision on Trial Procedure at the Session on the Crime of
Genocide of the Pol Pot – Ieng Sary Clique. Doc. No. 1.07.
47Foth 1979a, at 13.
48De Nike 2000, List of Invitees, Doc. No. 1.11a.
84 F. Selbmann
from Asian and Eastern-European states took part in proceedings as observers.

Human rights organizations such as Amnesty International or the International
Commissions of Jurists were not invited to observe the trial.49 The Vietnamese and
the East German advisers left the country before the beginning of the trial.50 The
witnesses who testified at the trial were chosen with consideration of the different
regions of the country, social classes, and persecuted minorities. In addition, writ-
ten testimonies of witnesses were used. All of the documents were translated into
English and French and disclosed to international observers, journalists, and the
public in general.51 In the judgment of 19 August 1979 Pol Pot and Ieng Sary were
found guilty of genocide and sentenced to death. The judgment contains a list of
the crimes that were committed by the Khmer Rouge, namely the murder of sol-
diers, officials of the Lon Nol administration and intellectuals, the persecution of
Buddhist monks and members of ethnic and or religious minorities, the forced
evacuation of the inhabitants of Phnom Penh and other cities after these were cap-
tured by the Khmer Rouge, enslavement of the population, as well as torture.52 The
judgment was forwarded to the United Nations by the Vietnamese government.
4.4 Compliance with Internationally Recognized Human

Rights Standards
4.4.1 Admissibility of Trials in Absentia
4.4.1.1 Trials in Absentia in National Legal Systems
In a global study about human rights standards in criminal proceedings Bassiouni

came to the conclusion that of the 139 states examined states constitutions of only
25 forbid trials in absentia. But even then, exceptions are regularly made when
the accused escapes trial.53 In many of the states with Roman legal tradition, tri-
als in absentia are admissible, for example in France, Italy and some provincial
jurisdictions in Switzerland. The 2007 Cambodian Criminal Procedure (hereinaf-
ter ‘CCP’) also allows trials in absence of the accused.54 In France the cour

50Interview and written correspondence by the author with Carlos Foth.
51A. Bentoumi, International Association of Democratic Lawyers (Internationale Vereinigung
Demokratischer Juristen), Report, Prozeß gegen Pol Pot und Ieng Sary, German translation for
the East German General State Prosecutor, 15–19 August 1979 (on file with the author) at 5.
52Judgment of the PRT, supra note 1.
53Bassiouni 1992–1993, at 279–280.
54See Articles 333, 353, 362, 365 et seq. Code of Criminal Procedure of the Kingdom of Cambodia,
Khmer-English-Translation, September 2008.

d’assises of Paris sentenced 13 members of the Chilean military to terms of

imprisonment from 15 years to life for their involvement of the enforced disap-
pearance of four Franco-Chileans during the dictatorship of Augusto Pinochet.55
Another recent example of a trial in absentia in France is the case of the
Mauritanian officer Ely Ould Dah, who was sentenced to a maximum of ten years
in prison for torture he had committed in Mauritania.56 Other countries from the
civil law system accept trials in absentia as well. In the Netherlands, after the
Second World War, trials against alleged war criminals were held without the
accused being present. One of these trials is remarkable because the proceedings
raise questions regarding the principle ne bis in idem and the execution of an in
absentia judgment abroad. The Special Court of Amsterdam sentenced Heinrich
Boere to death on 18 October 1949. Boere, a member of the Waffen-SS, had shot
three Dutch civilians in 1944. Later the death sentence was commuted into life-
long imprisonment. Under the German Code of Criminal Procedure trials in
absentia for major crimes are not admissible. The Higher Regional Court
Cologne had to decide, whether the sentence could be executed in Germany. The
court came to the conclusion that the judgment could not be executed, because
fair trial guarantees were violated in that Boere was not represented by counsel in
the pre-trial proceedings and during trial.57 As a consequence Boere was indicted
by German authorities and was sentenced to imprisonment by the regional court
of Aachen.58 The Federal Court of Justice upheld the judgment and came to the
conclusion that the principle of ne bis in idem, enshrined in Article 54 of the
Schengen Convention, which is applicable for inter-country situations within the
European Union, and Article 50 of the European Charter of Fundamental Rights
were not violated by the conviction.59
55Cour d’Assises de Paris, Judgment of 17 December 2010, Condreras et al., available at http://
fidh.org/IMG/pdf/Arret_de_condamnation_17dec2010.pdf (visited 15 June 2015).

56See Ely Ould Dah v. France, App no 13113/03, ECtHR (17 March 2009). The question of the
admissibility of a trial in absentia was not invoked by the applicant before the ECtHR.
57Oberlandesgericht (Higher Regional Court) Köln, Judgment of 3 July 2007, 2 Ws 156/07,
BeckRS 2007, 16795.

58Landgericht (Regional Court Aachen), Judgment of 23 March 2010, 52 Ks 45 Js 18-83 10/09,
BeckRS 2010, 14176.

59Bundesgerichtshof (Federal Court of Justice), Decision of 1 December 2010, 2 StR 420/10;
with reference to Bundesgerichtshof, decision of 25 October 2010 in the case of Scheunengraber,

1 StR 57/10, in Neue Juristische Wochenschrift (2011), 1014–1018 related to an in absentia con-
viction for war crimes by the a military court in La Spezia, which did not block a conviction by
German courts. In the case of Boere a constitutional complaint was dismissed by the Federal
Constitutional Court, Bundesverfassungsgericht, decision of 15 December 2011, 2 BvR 148/11,
in Neue Juristische Wochenschrift (2012), 1202–1205.
86 F. Selbmann
4.4.1.2 Trials in Absentia and International Recognized Human Rights

Standards
The Human Rights Committee

Goal of trials in absentia is the proper administration of justice.60 The question of
the admissibility of such trials has to be measured against accepted human rights
standards. Article 14(3)(d) ICCPR determines that every accused has the right to
be present at the trial, and to defend himself in person or by a defence lawyer of
his own choice. In 1983 in Mbenge v. Zaire,61 the Human Rights Committee
pointed out that trials in absentia are not in general incompatible with Article
14(3) ICCPR. There would be no objections to a trial in absentia, if the accused
was informed of the proceedings sufficiently in advance and declined to exercise
his right to be present. It will be of great importance in such a trial though, that the
procedural rights of the accused according to Article 14(3)(b), (d) and (e) ICCPR
are preserved. In the General Comment to Article 14 ICCPR the Human Rights
Committee pointed out that in such trials strict observance of the rights of the
defence is mandated.62
The European Court of Human Rights

According to the ECtHR several criteria must be fulfilled to comply with the
ECHR: It is necessary that the accused was sufficiently informed timely about the
indictment63 and that the accused was adequately defended in all stages of the
proceedings including on appeal.64 The defence lawyer must have the right to file
motions at the trial and the appeal stage and represent his client even if the
accused is absent.65 If the judgment was rendered after an in absentia proceeding,
the accused has the right for a new trial.66 But if an accused was properly
informed about the trial and waived his right to attend the proceedings and he
was not denied the right to legal assistance Article 6(1), (3)(c) ECHR is not
violated.67
60Marauhn 1997, at 766.

61Mbenge v Zaire, Comm. No. 16/1977 (25 March 1983), § 14.1.
62General Comment No. 13, Equality before the courts and the right to a fair and public hearing
by an independent court established by law, 13 April 1984, § 11.

63Sejdovic v. Italy App no 56581/00 (1 March 2006), § 89.
64Lala v. the Netherlands App no 14861/89 (22 September 1994), § 33.
65Geyseghem v. Belgium App no 26103/95 (21 January 1999), § 35.
66Sejdovic v. Italy, supra note 63, § 82; Krombach v. France, App no 29731/96 (13 February
2001), § 85.
67Medenica v. Switzerland App no 20491/92 (14 June 2001), § 56–57.
4.4.1.3 Trials in Absentia and International Criminal Jurisdictions
The IMT in Nuremberg tried the accused Bormann in absentia.68 At the ICTY and
the ICTR trials in absentia are not admissible. However, according to Rule 82bis
ICTR RPE, the right to be present can be waived, if the accused has made his ini-
tial appearance, the Registrar has notified him that he is required to be present for
trial and the accused is represented by counsel. Under Rule 80(B) RPE ICTY an
accused can be removed from the courtroom if he disturbs the proceedings repeat-
edly.69 Furthermore the ICTY accepts if a defendant explicitly waives his right to
attend the proceedings.70 In such a case it is necessary that the absent defendant is
represented by counsel. The presence of the counsel at the hearing is essential.71
Before the ICC trials in absentia are not admissible.72 Nevertheless, an accused
can be removed from the courtroom if he repeatedly disrupts the trial. According
to Article 35(2)(c) new ECCC-Law the accused has the right to be tried in his
presence. The accused can waive this right.73 If the accused cannot follow the pro-
ceedings in the courtroom for medical reasons, but is fit to stand trial, the TC can
order that the accused follow the proceedings by audio-visual means from the
holding cell.74 Only the Special Tribunal for Lebanon (STL) permits trials in
absentia in general. According to Article 22(1) STL-Statute trials in absentia can
be conducted if the accused waives his right to attend the trial, has not been trans-
ferred to the court, is a fugitive or otherwise untraceable and all the appropriate
measures were taken to ensure his presence in court and to inform him about the
charges. Accused persons who have been convicted in absentia and who have not
chosen defence counsel have the right to a new trial.75
68Article 12 IMTSt; IMT, Judgment of 1 October 1946, The Trial of German Major War
Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, 14

November 1945 - 1 October 1946, Vol. 22, at 587.
69Rule 80(B) ICTY RPE.
70Sentencing Judgment (IT 95–9/2-S), Simić, 17 October 2002, § 8.
71Judgment, Nahimana, Barayagwiza, Ngeze (ICTR-99–52-A), 28 November 2007, § 139.
72Article 63(1) ICCSt.

73See Decision on Accused Ieng Sary’s Fitness to Stand Trial, Nuon Chea and others
(002/19-07-2002/ECCC-E238/9) Trial Chamber, 26 November 2012, § 14, 32.
74Ibid., at § 44, see Internal Rule 81(5).
75Article 22(3) STLSt.
88 F. Selbmann
4.4.2 Consequences for the 1979 Trial Against Pol Pot

and Ieng Sary
4.4.2.1 General Considerations
Trials in absentia are undesirable.76 However, they are not necessarily incompati-
ble with general human rights principles. The question of an infringement of fair
trial guarantees has to be decided in each case separately. It has to be taken into
account whether the accused has been informed in a timely manner about the pro-
ceedings and an appropriate defence was ensured.77 If the accused has the right to
a retrial, fair trial guarantees are not violated.78 For the trial against Pol Pot and
Ieng Sary, the following conclusion can be drawn: Cambodia acceded to the
ICCPR on 26 May 1992.79 As a consequence the ICCPR was not directly applica-
ble to the PRT proceedings. Nevertheless, the principles outlined above can serve
as guidelines for the question whether the basic procedural rights were adhered to.
On 6 August 1979 Pol Pot and Ieng Sary were informed that the trial would
begin on 15 August 1979.80 The scheduling orders were made public via the
Cambodian radio from 8 August until 14 August 1979.81 The fact that the trial was
in preparation was known to the Khmer Rouge, because they did broadcast propa-
ganda against the trial via the radio.82 One week of preparation is far too short to
prepare an effective defence in very complex cases. The Human Rights Committee
did not specify which time frames are appropriate, but it did state that only three
days of preparation time would be incompatible with Article 14 ICCPR.83 The
ICTY considered a three and a half months period for a newly appointed lawyer
necessary.84 But even if the accused had been informed of the trial earlier, it is
obvious that they would not have intended to attend the trial. An accused can
waive the right to attend the trial. In this case an appropriate defence must be
ensured for the duration of the absence.
76Trechsel 2005, at 253.

77Sejdovic v. Italy, supra note 66, § 91–95; Council of Europe, Committee of Ministers,
Resolution (75)11 on the Criteria Governing Proceedings held in Absence of the Accused, 21
May 1975 § 1, 5; Mbenge v Zaire, supra note 61, § 14.1.
78Trechsel 2005, 254; Council of Europe, ibid., § 9.
79See http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=
4&lang=en (visited 15 June 2015). However, the ICCPR was signed by the Khmer Rouge on 17
October 1980.
80De Nike 2000, Order No. 2, Presiding Judge Order to Appear at Trial to Pol Pot, Doc. No. 1.16;
Order to Appear at Trial to Ieng Sary, Doc. No. 1.16bis.

81Ibid., Bailiff, Record of Notification of Summons the Fugitive Suspect Pol Pot, Doc. No. 1.17;
Bailiff, Record of Notification of Summons the Fugitive Suspect Ieng Sary, Doc. No. 1.18.
82Quigley 2004, at 9.
83Mbenge v Zaire, supra note 61, § 14.2.
84Decision on Appointment of Council and order on further Trial Proceedings, Karadžić
(IT-95-5/18-T), Trial Chamber, 5 November 2009, § 25.

4.4.2.2 Defence at the PRT
The accused were assigned three defence lawyers, two Cambodian nationals and
one US-American.85 These lawyers had no contact to the accused during the trial86
and were not instructed by them, but acted on their own behest. The counsels
choose not to bring the most obvious arguments for a proper defence.87 They did
not challenge the jurisdiction or the legality of the PRT.88 Further the defence law-
yer did not contest their assignment89 or reprimanded that the preparation time
was not sufficient. In general, the defence lawyers did not play a vital part in the
trial and hardly made use of their right to ask the witnesses questions. Particularly
the US-American lawyer Hope R. Stevens has been criticized correctly because of
his misconduct.90 The lack of professionalism of the defence lawyers was the
main weak point of the trial. Stevens opened his closing arguments with the fol-
lowing words: ‘I have not come from halfway around the world to give approval to
monstrous crime or to ask for mercy for the criminals.’91 Later he pointed out: ‘It
is now clear to all that Pol Pot and Ieng Sary were criminal insane monsters carry-
ing out a program the script was written elsewhere for them.’92 In their oral plead-
ings, the other two defence lawyers above all referred to an alleged involvement of
the Chinese government in the crimes committed by the Khmer Rouge.93 The
most obvious defence strategy – from a present-day perspective—that the acts did
not fulfil the necessary criteria of genocide, was not invoked. Instead, Stevens con-
firmed the accusations. Moreover, the conviction is based on the fact that the
85De Nike 2000, Decision of the Presiding Judge, Appointment of Defence Lawyers, Doc.
No. 1.11.
87In advance of the trial Carlos Foth prepared a document with the title Ziele und Aufgaben der
Verteidigung (Goals and Tasks of the Defence). The documents outlines, which arguments should
be brought by the defence and dismissed by the court, see De Nike 2008, at 41–43, Selbmann
2011, at 458–459. The script was not used in trial. But some of the arguments developed by
Foth were raised by the defence counsel, namely the alleged support of the People’s Republic of
China for the Khmer Rouge.
88In the case of Dusko Tadić, the first trial before the ICTY, one of the arguments raised by
the defence was that the tribunal had no jurisdiction, see Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), Appeals Chamber, 2 October 1995, § 9.
89This is another argument regularly brought by the defence in international criminal proceed-
ings, who act properly, see Decision on Interlocutory Appeal of the Trial Chamber’s Decision
on the Assignment of Defence Counsel, Milošević (IT-02-54-AR73.7), Appeals Chamber, 1
November 2004.
90Schabas, 2001b, at 470–477, at 476; Etcheson 2005, at 14–15.
91De Nike 2000, Closing Argument of Hope R. Stevens, Doc. No. 3.03 a.
92Ibid.
93Ibid., Closing Argument of Yuos Por, Doc. No 3.03b; Closing Argument of Dith Munty, Doc.
No. 3.03c.
90 F. Selbmann
defence admitted the genocidal intent.94 It was also problematic that Dith Munty,
now President of the Cambodian Supreme Court, was appointed as a defence law-
yer before the PRT. Munty had been the former vice public prosecutor of Phnom
Penh, and led a team in Phnom Penh that prepared the trial.95 The PTC of the
ECCC stressed the fact that Munty, who lost 38 family members under the Khmer
Rouge, testified for the prosecution at the investigation stage.96 Therefore an
appropriate defence, where the lawyers adhered to the rules of conduct, was not
ensured.
4.4.3 Other Aspects
4.4.3.1 Possible Bias of the Presiding Judge and Violation

of the Presumption of Innocence
According to Article 1(3) of the Decision on Trial Procedure97 issued by the pre-
siding judge the prosecutor, the accused, and the defence counsel had no right to
challenge judges. Therefore the parties did not have an opportunity to file motions
in cases of alleged partiality of the judges. The PTC argued that the presiding
judge Chanda was biased and the independence of the PRT had not been guaran-
teed.98 This can be proven by his behaviour prior the trial. As stated above,
Chanda was also the Minister for Information, Press, and Culture at the time of the
trial. After his appointment as presiding judge, Chanda gave a press conference on
28 July 1979, in which he stated that he viewed the committing of genocide by the
‘Pol Pot and Ieng Sary Clique’ as an established fact.99
4.4.3.2 Independence of the Lay Judges
The lay judges were selected in such a way that all the classes of the population
should be represented.100 Nevertheless here too independence was not ensured.
One of the lay judges had testified in writing in the Pre-Trial proceedings.101
94Judgment, supra note 1, at 22.

95See Fawthrop and Jarvis 2004, 40–41.
96De Nike 2000, Doc. No. 2.1.18; see Public Decision on Ieng Sary’s Appeal against the Closing
Order, supra note 15, at § 171.

97De Nike 2000, Doc. No 1.07.
98Public Decision on Ieng Sary’s Appeal against the Closing Order, supra note 15, at § 167, 169.
99De Nike 2000, Doc. No. 1.01bis. The statement reads as follows: ‘It is clear that the Pol-Pot
Ieng Sary clique committed the crime of genocide not only a particular ethnic group or against a
particular social stratum of the population, but against the Kampuchean people as a whole.’
100See Fawthrop and Jarvis 2004, at 42 and 279.
101De Nike 2000, Doc. No. 2.1.1.06.
Another, a medical doctor, had filed a report on the state of health of children
under the Khmer Rouge Regime.102 The PTC of the ECCC correctly assessed in
the Appeals decision that these persons had a particular interest in the case.103 If
the principles of a fair trial would have been respected, these persons would not
have been allowed to act as lay judges in the trial. However, Quigley, who was
present as a trial observer, points out that in 1979 there was not a single person in
Cambodia, who did not have their mind made up about Pol Pot and Ieng Sary.104
In this situation, which was characterized by the ongoing war and the complete
lack of governmental structures, as well as a catastrophic supply situation, it is
indeed important to pose the question, whether it was at all possible to find a
Cambodian judge who would be unbiased.
4.4.3.3 The Definition of Genocide in the PRT-Law
Cambodia has been a contracting party of the Genocide Convention since 1950,
but did not incorporate the crime of genocide in its Penal Code before 1975.
Article 1 of the Decree Law No. 1 defines genocide as:
Planned mass killing of innocent people, forced evacuation of the population from cities
and villages, concentration of the population and forcing them to work in physically and
morally exhausting conditions, abolition of religion, destruction of economic and cultural
structures and of family and social relations.
This definition is inconsistent with the definition of genocide in Article II

Genocide Convention.105 First, the Decree Law departs from the protected groups
listed in Article II Genocide Convention and does not define such groups. The PRT
Law does not contain the constitutive element of ‘intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such’. Further the Decree
includes in its genocide definition also the expulsion of the civil population. The
purpose of the expulsion is not the destruction of a specific group. Only acts
directed against the existence of a specific group fall under definition of geno-
cide.106 Expulsions therefore do not per se constitute genocide.107 In addition,
Article II Genocide Convention does not protect from ‘cultural genocide’.108
Because the Decree Law No. 1 entered into force after the alleged commission of
the crimes, the question is, whether this constitutes a violation of the principle of
legality. According to Article 15(1) ICCPR no one shall be held guilty for a crime
which did not constitute a criminal offence, under national or international law, at
102Ibid.,Doc. No. 2.4.03c.

103Public Decision on Ieng Sary’s Appeal against the Closing Order, supra note 15, at § 170.
105Boyle 2002, at 202; Luftglass 2004, at 902–903; Klein 2006, at 563.
106Drost 1959, at 86.
107Werle 2009, at 267; Selbmann 2003, at 217.
108Drost 159, 58–60; Lippman 2008, at 418; Selbmann 2003, at 219.
92 F. Selbmann
the time when it was committed. Exceptions are admissible, if the act was criminal
according to the general principles of law recognized by the community of nations
at the time it was committed.109 The principle of legality, namely the rule nullum
crimen sine lege, applies also in international criminal law.110 The proscriptions
must be undoubtedly enshrined either in international treaties or international cus-
tomary law.111 The definition of genocide in international customary law is con-
gruent to the definition in the Genocide Convention.112 Thus, the PRT conviction
of Ieng Sary violates the principle of legality. There would have been three possi-
ble ways to avoid this conflict: the application of the 1956 Cambodian Penal Code,
the verbatim adoption of Article II Genocide Convention into the Decree Law or
the prosecution according to the Nuremberg principles. However, it would have
been problematic to prosecute acts as genocide, when no ethnic or religious
minorities were affected. Many authors argue that the crimes committed by the
Khmer Rouge fall in the category crimes against humanity and not genocide.113 A
better option would have been the prosecution as crimes against humanity. In July
1979 the option to include crimes against humanity and the 1956 Penal Code in
the PRT-Law was proposed by the Eastern German side based on the experience of
the Fischer and Globke trials. The Cambodian side dismissed this proposal.
Ironically, the aim of the Cambodians was the recognition of the trial in the
Western world. Regarding the inclusion of crimes against humanity in the PRT
Law the Cambodian side raised objections because a lack of acceptance by
Western states was expected.114
4.4.3.4 Individual Criminal Responsibility
The judgment of 15 August 1979 lists in detail the crimes committed by the
Khmer Rouge as far as they were known at that point. However, the judgment
does not mention the modes of liability, which are the basis for the conviction. It
refers only to acts committed by the ‘Pol Pot – Ieng Sary Clique’. Regarding Ieng
Sary the judgment comes to the conclusion: ‘Ieng Sary, as Standing Political
Bureau member of the Angkar and Deputy Prime Minister in charge of foreign
affairs, held high offices with real power […] and defended the criminal acts of
genocide committed by his clique […]’,115 without specifying the underlying acts.
The only acts directly attributed to Ieng Sary are the orders to lure intellectuals,
109Article 15(2) ICCPR.

110Werle 2009, at 37.
111Bassiouni 2008, at 99.
112Selbmann 2003, at 148.
113See Heintze 2004, at 124; Schabas 2001b, at 472; Schabas 2001a, at 293; see also Fawthrop
and Jarvis 2004, at 223–225 who summarize the discussion.

114Email from Carlos Foth to the author dated 29 September 2009.
115Judgment, supra note 1, at 29.
who lived abroad back to Cambodia, where they were executed after their arrival
in Phnom Penh.116 One ground for the conviction was the forced evacuation of the
civil population from Phnom Penh and other centres.117 The 1979 judgment does
not describe, which of the acts are attributed to Ieng Sary. The evacuation of
Phnom Penh was also subject of the trial 002/1 against Khieu Samphan, Nuon
Chea, and Ieng Sary at the ECCC.118 Ieng Sary died before the trial 002/1 con-
cluded. Therefore all proceedings against him were terminated. Nevertheless the
TC took into account all motions delivered by the Ieng Sary Defence as far as they
were relevant for the ongoing trial.119 The two remaining accused, Khieu
Samphan and Noun Chea, were found guilty of crimes against humanity (extermi-
nation and persecution) and sentenced to life imprisonment for their participation
in the forced evacuation of Phnom Penh and other acts. The TC held that the two
accused and Ieng Sary participated in the decision to evacuate Phnom Penh and
other towns.120
4.4.4 Interim Result
The main goal of the PRT was not to prove the individual guilt of the accused. The
judgment was intended be used as a tool for recognition of the new Cambodian
government.121 The date of the trial was set so that the outcome could be pre-
sented at the next session of the United Nations General Assembly. Since many
members of the Salvation Front had been members of the Khmer Rouge before,
they also wanted to distinguish themselves from the former regime.122 Further, the
intent of the trial was to split the Khmer Rouge.123 The influence of the East
German support is difficult to evaluate.124 Even within the East German State
Prosecutor’s office the trial was not seen as significant for the development of
116Ibid., at 6 and 29.

117Ibid. at 10–12.
118See Closing Order, supra note 8, at § 221 et seq.; Severance Order Pursuant To Internal
Rule 89ter, Nuon Chea and others (002/19-09-2007/ECCC-E124), Trial Chamber, 22 September
2011, § 5, overruled by SCC’s Decision on the Co-Prosecutors’ Immediate Appeal of the Trial
Chamber’s Decision Concerning The Scope Of Case 002/1, Nuon Chea and others (002/19-09-2007/
ECCC-E163/5/1/13), Supreme Court Chamber, 8 February 2013.
119Judgment, Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber,
7 August 2014, § 6 in footnote 21.

120Ibid., § 152.
121See also Quigley 2004, at 8.
122Etcheson 2014.
123Fawthrop and Jarvis 2004, at 42.
124See also De Nike 2000, at 43.
94 F. Selbmann
international criminal law.125 The East German proposal to prosecute crimes

against humanity as such was not accepted. Although the PRT received East
German and Vietnamese support, the trial was conducted under Cambodian law.
All of the judges were Cambodians. The ECCC correctly concluded that the pro-
ceedings before the PRT were not fair.126 The accused were not defended by coun-
sel who acted in accordance with the ethics of their profession. The judges were
not impartial. The definition of genocide in the PRT Law was inconsistent with
international treaty and customary law. As a consequence it has to be examined,
whether unfair proceedings can lead to an exception from the principle that multi-
ple trials are not admissible. Firstly, the scope and the reach of this principle needs
to be assessed. Secondly, the question of whether this principle is applicable in the
Ieng Sary case needs to be addressed.
4.5 The Principle of Ne Bis in Idem and the Proceedings

Against Ieng Sary at the ECCC
4.5.1 General Considerations
The principle, that one should not be prosecuted twice for the same act is known
to all legal systems.127 The civil law system refers to the principle as ne bis in
idem. It is, for instance, laid down in Article 103(3) of the German Constitution,
which states that no one ‘may be punished for the same act more than once under
the general criminal laws’. In the common law system the principle is known as
the prohibition of double jeopardy. It can be found in the Fifth Amendment to the
United States Constitution, which refers to ‘the same offense’. If a defendant was
acquitted, he cannot be indicted again within the same jurisdiction. Further, after
an acquittal by a jury, the public prosecutor is not allowed to file an appeal against
the judgment.128 However, the principle does not preclude prosecution in other
jurisdictions, namely jurisdictions of foreign states and other jurisdictions within
the United States.129 On the other hand, in civil law systems the prosecutor is
allowed to appeal on acquittal. Further, the civil law system refers to the same act
or conduct, the common law system to the same offence.130
125This is the conclusion of Günther Wieland, former prosecutor in the office of the Eastern
German General State Prosecutor, Wieland 1995, at 115.

126However the trial does not fulfill the criteria of a “show trial”, see Selbmann and Wesemann
2010, at 122–124.
127Conway 2003, at 217.
128US Supreme Court, Fong Foo v. United States, 369 U.S. 141 (1962), 19 March 1962.
129Eser and Burchard 2006, at 501 et seq.
130Conway 2003, at 227.
The principle is also laid down in human rights treaty law. For instance it can
be found in Article 14(7) ICCPR and Article 4(1) Protocol No. 7 to the ECHR.
Both treaties refer only to acquittals or convictions in the same state.131 Article
14(7) ICCPR protects not only from a new conviction, but also against a second
trial. There is no rule in international law, which expands the rule to criminal pro-
ceedings in other states132 or other jurisdictions. One regional exception of a
cross-border ne bis in idem exists in the European Union according to Article 50
of the Charter of Fundamental Rights of the European Union and Article 54 of the
Schengen Convention. According to the latter no one can be ‘prosecuted in
another Contracting Party for the same acts provided that, if a penalty has been
imposed, it has been enforced, is actually in the process of being enforced or can
no longer be enforced under the laws of the sentencing Contracting Party’.
Rules about ne bis in idem, which are established to solve jurisdictional con-
flicts, can be found in Article 10 ICTY Statute, Article 9 ICTR Statute, Article 9
SCSL Statute, Article 5 STL Statute and Article 20 ICC Statute.
4.5.2 The Principle of Ne Bis in Idem at the ECCC
The proceedings before the ECCC are conducted under Cambodian procedural law.
International law serves only as guidance for the interpretation of the applicable
national law.133 The ECCC Law does not include a rule about double prosecution.
The problem was known to the drafters. According to Article 11(2)
UN-Agreement, and Article 40 new ECCC Law, the ECCC have the competence to
decide about the scope of an amnesty or a pardon, which were granted prior to their
founding. A pardon can only be given, if there was an earlier conviction. The TC
therefore came to the correct conclusion that the application of the ne bis in idem
principle would lead to a de facto amnesty to the conduct prosecuted in 1979.134
A rule about multiple trials can be found in the CCP. According to Article 12
CCP a person who has been finally acquitted cannot be prosecuted again for the
same act, even if under a different legal qualification. Since the wording is clear,
the rule cannot be applied to convictions.135 The PTC therefore analysed the rules
of international law, namely Article 14(7) ICCPR. The defence argued the pro-
ceedings at the PRT and the ECCC are both national proceedings and therefore
131For the ECHR see Protocol No. 7, Explanatory Report, § 27, available at http://conventions.
coe.int/Treaty/en/Reports/Html/117.htm (visited 15 June 2015).
132Bundesverfassungsgericht (Federal Constitutional Court), Decision of 31 March 1987, 2 BvM
2/86, BVerfGE 75, 1–34, at 23; decision of 15 December 2011, supra note 59, at 1203.
133Kroker 2012, at 58.
134Decision on Ieng Sary’s Rule 89 Preliminary Objection, supra note 16, at § 36.
135See also Public Decision on Ieng Sary’s Appeal, supra note 15, at § 124.
96 F. Selbmann
Article 14(7) ICCPR is applicable.136 However, the PTC and the TC argued that
the ECCC is an internationalized court, which exist independent from national
Cambodian courts and Article 14(7) ICCPR is not applicable.137 This rather for-
mal argument is not convincing, since the ICCPR as a human rights instrument is
meant to give a maximum protection in trial proceedings. When the PTC argues
Article 14(7) ICCPR is not applicable before the ICC and the ad hoc tribunals it
overlooks that all other international and internationalized courts are bound by
rules about double prosecution in their statutes, which protect the accused from
arbitrary prosecutions. Therefore the situation cannot be compared with the
ECCC. According to Article 13(1) UN Agreement, Article 33 new (2) ECCC Law
Articles 14 and 15 ICCPR have to be respected in the entire trial proceedings.
Since Article 14(7) ICCPR protects also against multiple trials it would have been
desirable, if the SCC had rendered a decision on the merits of the immediate
appeal against the TC decision of 3 November 2011. Thus, the SCC missed the
chance to give a final answer to this question.
Some authors argue that it would be possible to file an indictment for other
crimes than genocide, since the 1979 conviction was based only on genocide
charges.138 Also the Co-Investigating Judges argued along the same line.139 This
view is problematic. The principle of ne bis in idem has to be interpreted in a
broad sense. In civil law jurisdictions it has to be considered, which act formed the
basis for the conviction. An indictment is related to the underlying acts. The
accused has to know, on which facts the indictment is based. If an accused was
once tried for a specific conduct he can have the legitimate expectation, that he
will be not again indicted for the same acts. This view is supported by Article
20(3) ICC Statute, which also relies on the same conduct. In this case it is neces-
sary to examine, which conduct was the basis for the conviction by the PRT.
Although the evacuation of Phnom Penh formed part of the proceedings at the
PRT and the trial 002/1 at the ECCC, it remains unclear, which orders rendered by
Ieng Sary precisely led to the 1979 conviction. This leads to practical problems to
clarify, which acts were consumed by the proceedings of the PRT.
The PTC avoided these difficulties and argued the 1979 proceedings were
unfair. Therefore the principle of ne bis in idem should not be applicable. Some
authors follow the same approach.140 This view is supported by Article 10(2)(b)
ICTY Statute, Article 9(2)(b) ICTR Statute, Article 9(2)(b) SCSL Statute, Article
5(2) STL Statute and Article 20(3)(b) ICC Statute. But the ECCC cannot rely on
the procedural law of other international/internationalized courts. These procedural
136Ieng Sary’s Appeal against the Closing Order, Nuon Chea and others (02/19-09-2007/ECCC-
OCIJ-D427/1/6), Ieng Sary Defence, 15 October 2010, § 8–20 and 33.
137Public Decision on Ieng Sary’s Appeal, supra note 15, at § 131; Decision on Ieng Sary’s
Rule 89 Preliminary Objection, supra note 16, at § 32.

138Boyle 2002, at 202; Dyrchs 2008, at 212–213.
139Provisional Detention Order, supra note 7, § 8.
140Scheffer 2008, at 248; Dyrchs 2008, at 204; Schulz 2009, at 277.
clauses do not form international customary law. Further, a person subjected to

proceedings that flagrantly violated the rule of law may need more protection than
a person who was convicted in a fair trial, in particular if the convicted was impris-
oned for a long time after the unfair trial. Therefore it is decisive, if the accused
could have the legitimate expectation not to be indicted a second time for the same
conduct.141 If a person was convicted once, and the sentence was not enforced, the
accused does not enjoy a protection of legal interest. The decisive factor is, there-
fore, whether the judgment was executed.142 If the judgment was not executed and
the accused was not involved in the proceedings, he suffered no negative conse-
quences from the first proceeding. In case of Ieng Sary the following facts have to
be considered: The Khmer Rouge tried to disturb the 1979 proceedings with their
propaganda. Ieng Sary lived after the fall of the Khmer Rouge in 1979 in Thailand.
Therefore, there existed no threat for him that the rather symbolic judgment was to
be executed. He also was not involved in the 1979 proceedings and did not organ-
ize his own defence. Further an accused convicted in absentia has a right to a new
trial.143 Such provisions can be found also in the national Cambodian law.144 As a
consequence Ieng Sary could not invoke the principle of ne bis in idem. His inter-
ests not to be prosecuted again were not protected.
4.6 Consequences from the Royal Pardon

for the Proceedings Against Ieng Sary
Ieng Sary also invoked the 1996 Royal pardon. According to Article 11(1) UN
Agreement, Article 40 new ECCC Law, the Cambodian government shall refrain
from requesting an amnesty or a pardon for any persons under investigation or
convicted by the ECCC. This clause is not absolute. It refers only to potential pro-
spective amnesties and pardons. Article 11(2) UN Agreement, Article 40 ECCC
Law left the question how to handle the 1996 Royal pardon explicitly open. This is
one of the major flaws and a failure of the UN in the negotiating process.145 It is
rooted in Prime Minister Hun Sen’s view that Ieng Sary should not be tried again.
In this regard Hun Sen used the formal argument that according to Article 27 of
the Cambodian constitution only the king can grant pardons and amnesties.146 As
a consequence there exists no absolute prohibition of an amnesty, as laid down in
141This is also the underlying principle of Article 54 Schengen Convention.

142In the case of Ieng Sary the death sentence would have been converted to a prison sentence
after the abolition of the death penalty in Cambodia, see Public Decision on Ieng Sary’s Appeal,
supra note 15, at § 192; Schulz 2009, at 299.
143See supra Sect. 4.4.1.2; Schulz 2009, at 121.
144Article 365 et seq. CCP.
145Luftglass 2004, at 950–951.
146More detailed Boyle 2002 , at 201–202 and Scheffer 2008, 230 et seq., 247–248.
98 F. Selbmann
Article 10 SCSL Statute and Article 9 SCL Statute. Thus, the organs of the ECCC
had to decide, whether Ieng Sary can be prosecuted again.
In its decision of 11 April 2011 the PTC does not answer the question, whether
international law prohibits generally amnesties for crimes under international law.
Regarding the 1979 judgment the PTC found that the sentence has no effect on the
jurisdiction of the ECCC since it was invalid and does not protect Ieng Sary from
further prosecution.147 Further the PTC argued that the pardon relates solely to the
1994 Law and was not intended to cover crimes under international law.148
The TC used the opportunity to give a detailed decision about the admissibility
of amnesties for crimes under international law. Since the earlier translations of
the 1996 Royal decree were not consistent, the TC provided a new official transla-
tion.149 According to the TC the correct translation reads ‘[A] pardon is granted
[…] for the sentence […] imposed by the People’s Revolutionary Tribunal of
Phnom Penh, dated 19 August 1979, and for any penalty provided for, in the [1994
Law].’150 However, the TC could not rule out the possibility that the pardon was
meant to grant immunity for any acts committed before 1996.151 Therefore the TC
gave a detailed opinion about the admissibility of amnesties for crimes under
international law. Regarding grave breaches of the Geneva Convention, genocide,
and torture the TC came to the conclusion that Cambodia as a state party is under
the obligation to prosecute or to punish the perpetrators.152 Regarding the crime of
torture the TC could rely on the jurisprudence of the ICTY,153 the Human Rights
Committee,154 and the ECtHR.155 This view was also approved by the ICJ in the
Hissène Habré case in 2012, which relied on the aut dedere aut judiciare princi-
ple, not only for the states where the crimes were committed, but also for the terri-
tory of the state, in which the alleged perpetrator is present.156 Regarding crimes
against humanity the TC referred to the duty to prosecute under customary
147Public Decision on Ieng Sary’s Appeal against the Closing Order, supra note 15, at 194.
148Ibid., at § 200.
149The translation on the website of the ECCC uses the word ‘pardon’, see http://www.eccc.
gov.kh/sites/default/files/legal-documents/pardon_for_ieng_sary.pdf (visited 15 June 2015), the

PTC uses the word ‘amnesty’, Public Decision on Ieng Sary’s Appeal against the Closing Order,
supra note 15, at § 188.
151Ibid., at § 29.
152Ibid., at 38–39.
153Judgment Furundžija (IT-95-17/1-T), Trial Chamber, 10 December 1998, at § 155.
154General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or
Degrading Treatment or Punishment), 10 March 1992, §15; see also Rodriguez v. Uruguay,
Comm No 322/1988, CCPR/C/51/D/322/1988, 9 August 1994, § 12.4.
155Ely Ould Dah v. France, supra note 56, at 16–17.
156Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), International
Court of Justice, 20 July 2012, ICJ Reports 2012, 422–463, at 456.

international law.157 The decision of the TC is in line with the jurisprudence of the
SCSL.158 Also in the legal literature the view prevails, that there is no room for
blanket amnesties.159 The literature accepts narrowly tailored amnesties, in spe-
cific cases, namely if the amnesty helps to end ongoing violence.160 This condition
is not met in the case of Ieng Sary. There might have been a justification for the
amnesty in 1996. But there is no current state of emergency. Today no risk exists
that violence between the Royal government and former Khmer Rouge cadres
would break out again in Cambodia. Moreover, a culture of impunity has existed
in Cambodia for a long-time. Therefore it is necessary to investigate and to prose-
cute crimes committed by the Khmer Rouge. The TC came to the correct conclu-
sion: the amnesty was a useful tool in 1996, when the reintegration of Ieng Sary’s
combatants contributed to the restoration of peace. Since the amnesty was not
accompanied by a truth and reconciliation process and the establishment of effec-
tive remedies the amnesty could not lead to a termination of the proceedings at the
ECCC.161
4.7 Conclusion
Although the international community failed to insist on including clear rules on

how to handle Ieng Sary’s prior conviction and the 1996 Royal pardon in the UN
Agreement and the ECCC-Law, the PTC and the TC passed the test how to find an
appropriate solution for this question. The fear that the national and the interna-
tional judges might split over this question, was unfounded. Unfortunately, the
SCC missed the opportunity to make a final determination before Ieng Sary died.
Neither the 1979 judgment of the PRT, nor the 1996 Royal pardon could hinder
the prosecution of Ieng Sary at the ECCC. The principle of ne bis in idem was not
violated in the proceedings. Since Ieng Sary suffered no negative consequences
from the 1979 judgment, he could not successfully invoke the ne bis in idem prin-
ciple. Since other statutes of international and internationalized criminal courts
contain clear rules about double prosecution, the Ieng Sary case is not a precedent
for similar proceedings. More important for the development of international crim-
inal law is the discussion about the validity of amnesties in the Ieng Sary case. The
TC used the proceedings to give a general statement about the admissibility of
amnesties for crimes under international law. Blanket amnesties are not consistent
with international law. A combination of the Royal pardon and the application of
158Decision to Challenge Jurisdiction, Kallon (SCSL-2004-15-AR-2) and Kamara (SCSL-2004-
16-AR-2), Appeals Chamber, 13 March 2004, §§ 71–74.
159Ambos 2009, at 55; Werle 2009, at 77.
160Ambos 2009, at 62; Robinson 2003, at 491; Schulz 2009, at 297; Werle 2009, at 77–78.
161Decision on Ieng Sary’s Rule 89 Preliminary Objection, supra note 16, at § 54–55.
100 F. Selbmann
the ne bis in idem principle would have led to a de facto amnesty, which is not
acceptable.162 Therefore the TC sent a strong signal against impunity, which is
unfortunately rather symbolic, since the trial against Ieng Sary started too late to
come to a final judgment.
References
Ambach P (2006) Die Extraordinary Chambers in the Courts of Cambodia—endlich

Gerechtigkeit? Das lange Tauziehen zwischen den Vereinten Nationen und Kambodscha
um wirkungsvolle internationale Strafgerichtsbarkeit. Humanitäres Völkerrecht—
Informationsschriften 19:168–179
Ambos K (2009) The Legal Framework of Transitional Justice: A Systematic Study
with a Special Focus on the Role of the ICC. In: Ambos K, Large J, Wierda M (eds) Building
a Future on Peace and Justice, Studies on Transitional Justice, Conflict Resolution and
Development, Springer-Verlag, Berlin, pp 19–103
Arendt H (2006) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Group, New
York
Bassiouni M C (1992–1993) Human Rights in the Context of Criminal Justice: Identifying
International Procedural Protections and Equivalent Protection in National Constitutions.
Duke Journal of Comparative and International Law 3:235–297
Bassiouni M C (2008) Principles of Legality in International and Comparative Criminal Law. In:
Bassiouni M C (ed) International Criminal Law, Vol. 1, Sources, Subjects and Contents, 3rd
edn, Martin Nijhoff Publishers, Leiden, pp 73–105
Bentoumi A (1979) Prozeß gegen Pol Pot und Ieng Sary, Report, International Association of
Democratic Lawyers (Internationale Vereinigung Demokratischer Juristen), German transla-
tion for the East German General State Prosecutor
Bevers J (2009) Der Mann hinter Adenauer, Hans Globkes Aufstieg vom NS-Juristen zur Grauen
Eminenz der Bonner Republik. Christoph Links Verlag, Berlin
Boyle D (2002) Establishing the Responsibility of the Khmer Rouge Leadership for International
Crimes. Yearbook of International Humanitarian Law 5:167–218
Conway G (2003) Ne Bis in Idem in International Law. International Criminal Law Review
3:217–244
De Nike H (2000) Genocide’s Orphan: The 1979 Trial of Pol Pot and Ieng Sary. In: Ewald U and
Turković K (eds) Large-Scale Victimisation as a Potential Source of Terrorist Activities, IOS
Press, Amsterdam, pp 208–213
De Nike H (2008) East Germany’s Legal Advisor to the 1979 Tribunal in Cambodia, Searching
the Truth. Magazine of the Documentation Centre of Cambodia, Phnom Penh
De Nike H, Quigley J, Robinson K J (2004) Genocide in Cambodia, Documents from the Trial of
Pol Pot and Ieng Sary. University of Pennsylvania Press Philadelphia
Dirks C (2006) Die Verbrechen der Anderen, Auschwitz und der Auschwitzprozess der DDR:
Das Verfahren gegen den KZ-Arzt Dr. Horst Fischer. Ferdinand Schöningh Verlag, Paderborn
Drost P (1959) The Crime of State, Book II, Genocide—United Nations Legislation on
International Criminal Law. A.W. Sythoff, Leyden
Dyrchs S (2008) Das hybride Khmer-Rouge-Tribunal: Entstehung, Entwicklung und rechtliche
Grundlagen. Peter Lang Verlag, Frankfurt
162Ibid., at § 36.
Eser A and Burchard C (2006) Interlokales ne bis in idem in Europa?—Von westfälischem

Souveränitätspathos zu europäischem Gemeinschaftsdenken. In: Derra H-J (ed) Freiheit,
Sicherheit und Recht: Festschrift für Jürgen Meyer zum 70. Geburtstag, NOMOS, Baden-
Baden, pp 499–524
Etcheson C (2005) After the Killing Fields- Lessons from the Cambodian Genocide. Texas Tech
University Press, Lubbock
Etcheson C (2014) The Challenges of Transitional Justice in Cambodia. www.mei.edu/content/
challenges-transitional-justice-cambodia. Accessed 15 June 2015
Fawthrop T, Jarvis H (2004) Getting away with Genocide—Elusive Justice and the Khmer Rouge
Foth C (1979a) Abschlussbericht zur Ausführung des Auftrages vom 22. Juli bis 19. August
1979 in Vietnam und Kambodscha an das Zentralkomitee der SED. Bundesarchiv (Federal
Archive) DP 3/2228
Foth C (1979b) Überlegungen zu weiteren Maßnahmen in Auswertung des Prozesses gegen Pol
Pot und Ieng Sary. Bundesarchiv (Federal Archive), DP 3/2228
Heintze H J (2004) Die Verbrechen der Roten Khmer und die Völkermord-Konvention.
Zeitschrift für Genozidforschung 5:114–126
Klein KM (2006) Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the
Joint Tribunal in Cambodia. Northwestern Journal of International Human Rights 4:549–566
Kroker P (2012) Zivilparteien in Völkerstrafverfahren—Eine Analyse der Opferbeteiligung an
den Extraordinary Chambers in the Courts of Cambodia. Duncker & Humblot, Berlin
Lippman M (2008) Genocide. In: Bassioni M C (ed) International Criminal Law Vol. 1 Sources,
Subjects and Contents, 3rd edn, Martin Nijhoff Publishers, Leiden, pp 403–435
Luftglass S (2004) Crossroads in Cambodia: The United Nation’s Responsibility to Withdraw
Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer
Rouge. Virginia Law Review 90:893–964
Marauhn T (1997) The Right of the Accused to Be Tried in His or Her Presence. In: Weissbrodt
D, Wolfrum R (eds) The Right to a Fair Trial, Springer-Verlag, Heidelberg, pp 763–776
Menzel J (2006) Ein Strafgericht für die Khmer Rouge. Herausforderung für Kambodscha und
das Völkerstrafrecht. Verfassung und Recht in Übersee 39:425–456
Meseke S (2005) Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen
Statut des Internationalen Strafgerichtshofes. Berliner Wissenschafts-Verlag, Berlin
Mosyakov D (2004) The Khmer Rouge and the Vietnamese Communists: A History of their
Relations as told in the Soviet Archives’, GSP Working Paper 15. www.yale.edu/cgp/
resources.html. Accessed 15 June 2015
Quigley J (2004) Introduction. In: De Nike H, Quigley J, Robinson KJ (eds) Genocide in
Cambodia, Documents from the Trial of Pol Pot and Ieng Sary. University of Pennsylvania
Press Philadelphia, pp 1–18
Robinson D (2003) Serving the Interests of Justice: Amnesties, Truth Commissions and the ICC.
European Journal of International Law 14:481–505
Schabas W (2001a) Problems of International Codification—Were the Atrocity in Cambodia and
Kosovo Genocide? New England Law Review 35:287–301
Schabas W (2001b) Was it Genocide? Human Rights Quarterly 23:470–477
Scheffer D (2008) The Extraordinary Chambers in the Courts of Cambodia. In: Bassiouni M C
(ed) International Criminal Law, Vol. 3, International Enforcement, 3rd edn, Martin Nijhoff
Publishers, Leiden
Schulz S (2009) Transitional Justice und hybride Gerichte, Zur strafrechtlichen Verfolgung von
völkerstrafrechtlichen Verbrechen unter besonderer Berücksichtigung des kambodschanis-
chen Sondergerichts, Extraordinary Chambers. LIT Verlag, Berlin
Selbmann F (2003) Der Tatbestand des Genozids im Völkerstrafrecht. Leipziger
Universitätsverlag, Leipzig
Selbmann F and Wesemann D (2010) Der Pol Pot-Ieng Sary-Prozess revisited—Anmerkung
zum Prozess gegen führende Rote Khmer im Jahr 1979. Zeitschrift für Internationale
Strafrechtsdogmatik (2010) 5:116–124
102 F. Selbmann
Selbmann F (2011) Die Rolle der Generalstaatsanwaltschaft der DDR im Prozess gegen Pol Pot
und Ieng Sary im Jahr 1979. Neue Justiz 65:454–460
Staadt J (2009) Furchtbare Juristen des SED-Staates. Zur Rolle der Generalstaatsanwaltschaft—
Teil I. Zeitschrift des Forschungsverbundes SED-Staat 25:22–34
Trechsel S (2005) Human Rights in Criminal Proceedings. Oxford University Press, Oxford
Weinke A (2002), Die Verfolgung von NS-Tätern im geteilten Deutschland: Vergangenheitsbewäl-
tigungen 1949—1969 oder eine deutsch-deutsche Beziehungsgeschichte im Kalten Krieg.
Ferdinand Schöningh Verlag, Paderborn
Werle G (2009) Principles of International Criminal Law, 2nd edn. T.M.C. Asser Press, The
Hague
Wieland G (1995) Die Nürnberger Prinzipien im Spiegel von Gesetzgebung und Spruchpraxis sozi-
alistischer Staaten. In: Hankel G and Stuby G (eds) Strafgerichte gegen Menschheitsverbrechen,
Zum Völkerstrafrecht 50 Jahre nach den Nürnberger Prozessen, Hamburger Edition, Hamburg,
pp 98–123
Wieland G (2003) Die Ahndung von NS-Verbrechen in Ostdeutschland. Neue Justiz 57:113–118
Chapter 5
Expectations, Challenges and Opportunities
of the ECCC
Jeudy Oeung
Abstract The atrocities committed during the Khmer Rouge reign have never
been forgotten. The ECCC was established by the Cambodian government and the
United Nations to bring to justice those who are the most responsible for these
crimes. Having such a special tribunal existing in the country where the crimes
were committed raises high and different expectations among the Cambodian
people, especially the victims participating in the trial proceedings as civil par-
ties. These expectations include active participation in the truth finding, obtaining
justice, acknowledgment and support, reconciliation and reparations. On the way
towards ‘justice’, there are numerous challenges legally, financially and politically,
especially given the advanced age and frail health of the two remaining senior
Khmer Rouge leaders in Case 002. In addition the ECCC still faces uncertainties
with respect to Cases 003 and 004. Nevertheless, there are opportunities to over-
come these challenges by the ECCC itself and with the contribution of its support-
ers including the Cambodian government, the United Nations and NGOs to ensure
a proper administration of justice and to leave a positive legacy for the domestic
courts.
Keywords Reconciliation · Legacy · Reparations · Victim participation · Victim

support · Political interference
The author is Human Rights Programme Officer at the Embassy of the Kingdom of Sweden in
Phnom Penh, Cambodia.
J. Oeung (*)
Embassy of Sweden, Phnom Penh, Cambodia
e-mail: oeungjeudy@gmail.com

DOI 10.1007/978-94-6265-105-0_5
104 J. Oeung
Contents
5.1 Introduction.......................................................................................................................... 104
5.2 Expectations towards the ECCC.......................................................................................... 106
5.2.1 Trial Attendance and Participation............................................................................. 107
5.2.2 Obtaining ‘Justice’ from the Tribunal........................................................................ 108
5.2.3 Acknowledgment and Support................................................................................... 109
5.2.4 Truth Seeking............................................................................................................. 111
5.2.5 Reparations Claims.................................................................................................... 112
5.2.6 Reconciliation Within the Community and Society.................................................. 114
5.3 Facing and Addressing the Challenges................................................................................ 115
5.3.1 Trials of Case 002...................................................................................................... 116
5.3.2 Legal Complexity of and Political Interference in Cases 003 and 004...................... 117
5.3.3 Budgetary Constraint and Uncertainty...................................................................... 118
5.4 An Opportunity for the Tribunal’s Legacy: Beyond the ECCC........................................... 119
5.5 Conclusion........................................................................................................................... 120
References................................................................................................................................... 121
5.1 Introduction
There have been many violent conflicts in the Southeast Asian region in the twen-
tieth century. Amongst the worst events of mass violence in the region were crimes
being committed during the Khmer Rouge regime, officially known as
“Democratic Kampuchea” in Cambodia, from 17 April 1975 to 6 January 1979.
During its almost four-year reign, the Khmer Rouge regime was responsible for
large-scale and systematic human rights abuses and the commission of the most
severe international crimes. The exact number of people who died as a result of
Khmer Rouge policies is estimated at between 1.5 million to 2 million people, or
about one fifth of the country’s population at that time.1 In January 1979, the
Vietnamese intervened and defeated the Khmer Rouge. The country, however,
remained disturbed by civil war for nearly two more decades.
After years of negotiations between different political fractions2 of Cambodia,
with various diplomatic supports from many international actors, the Paris Peace
Agreement was signed in 1991. This Agreement provided for one of the largest
peacekeeping missions in the history of the United Nations known as the United
Nations Transitional Authority in Cambodia (UNTAC). UNTAC was tasked with
1The death toll of the people during the Khmer Rouge regime varies from researcher to researcher.
For the death toll referred to by the ECCC, see Judgment, Nuon Chea and others (002/19-
09-2007/ECCC-E313), Trial Chamber, 7 August 2014 (Case 001/02 Trial Judgment), § 175, § 99.
2Four Cambodian political fractions during that time were including: the State of Cambodia
(Phnom Penh government led by the Cambodian’s People Party), the United National Front for
an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC) led by Prince
Norodom Sihanouk; the Khmer People’s National Liberation Front (KPNLF); and the Party of
Democratic Kampuchea (PDK) also known as the Khmer Rouge.
5 Expectations, Challenges and Opportunities of the ECCC 105
dealing with the country’s interim administration and with keeping peace in the
country. Though Cambodians were finally enjoying some peace at this time, the
devastation of the Khmer Rouge regime and consequences of the violent conflicts
that preceded and followed it have continued to affect the people and the develop-
ment of the country. Among the state institutions, the judiciary in particular is
identified as one of the weakest and most problematic institutions in Cambodia.
It was only in 1997, after political compromise, determined efforts by
Cambodian civil society members, and the international community demanding
justice, that the Co-Prime Ministers of the first Cambodian Government made an
official request to the United Nations Secretary-General to assist the Cambodian
Government in bringing to justice the senior leaders and those most responsible
for the crimes committed from 1975 to 1979. As a result, former United Nations
Secretary-General Kofi Annan sent a Group of Experts to Cambodia who, in a
report published in 1999,3 recommended the establishment of an international
criminal tribunal, similar to those created post-conflict regarding the former
Yugoslavia and Rwanda. However, this proposal was strongly opposed by the
Cambodian Government and this opposition led to another period of four years of
negotiations.
During the negotiations Cambodian civil society and human rights organiza-
tions advocated strongly for an independent court.4 In June 2003 both sides were
able to agree and establish the Extraordinary Chambers in the Courts of Cambodia
(ECCC)—also often referred to as the Khmer Rouge Tribunal (KRT)—to prose-
cute the senior leaders of the regime and those most responsible for the crimes.
The ECCC is a hybrid court comprised of national and international judicial offi-
cials and staff which applies both international law and Cambodian domestic law.
Even after the completion of the negotiations, it took several years before the
ECCC was fully operational, with the first charges against a number of individuals
being brought in 2007. Today, two persons are currently on trial5 and two more
cases are under investigation. From the beginning, the ECCC faced similar criti-
cism as other international courts: high costs, slow proceedings and insufficient
outreach to the population.6 In addition, there have been frequent allegations of
corruption and political interference at the ECCC, especially in the two cases initi-
ated by the international Co-Prosecutor without agreement from his national
3Report of the Group Expert for Cambodia established pursuant to UN GA Res. 52/135 (1999),
(University of Minnesota, Human Rights Library), available at http://www1.umn.edu/humanrts/

cambodia-1999.html (visited 15 June 2015).
4Interview with a NGO leader working on the Khmer Rouge tribunal (anonymous), copy on file
with the author.

5Case 002/01 Trial Judgment, supra note 1.
6Open Society Justice Initiative (OSJI), ‘Progress and Challenges at the Extraordinary Chambers in
the Courts of Cambodia’, (June 2007), available at http://www.opensocietyfoundations.org/publica-

tions/new-report-open-society-justice-initiative-finds-critical-needs-khmer-rouge-tribunal, (visited 15
June 2015), at 8–14. See also: OSJI, ‘Recent Development at the ECCC’, (February 2009), available
at http://www.opensocietyfoundations.org/publications/recent-developments-extraordinary-chambers-
courts-cambodia-5 (visited 15 June 2015), at 4–10.
106 J. Oeung
counterpart.7 The ECCC’s first judgment was rendered against Kaing Guek Eav
alias Duch, the former head of the country’s most notorious Khmer Rouge security
prison.8 The second judgment was rendered by the Trial Chamber against the for-
mer Head of the Presidium Khieu Samphan and the President of the People’s
Assembly Nuon Chea on 7 August 2014.
These judgments are an important sign for the victims of the Khmer Rouge,
enabling them to believe that they see justice done, even if more than 30 years
since the crimes have passed. But, unfortunately, these are the only two verdicts to
date. This slow-moving justice process is the result of the many challenges faced
by the court both before and after its establishment. These challenges may stem
from the unstable political situation in Cambodia or possibly the early hesitance of
both the Cambodian government and the international community to work towards
accountability in the negotiations.
In the 1990s, Cambodian civil society began to gather information about the
Khmer Rouge period and to systematically document the crimes that were com-
mitted during that regime. The Documentation Center of Cambodia (DC-Cam),9
a local NGO, has been at the forefront of this process since 1997. The large
amount of information collected and archived by DC-Cam became an indispen-
sable source of evidence for the ECCC and for the history of the Cambodian
people.
This chapter will discuss expectations and hopes that the people of
Cambodia placed on the Khmer Rouge trial process; the challenges currently
faced by the ECCC; and finally the opportunities to be seized by the Court and
other relevant stakeholders to leave a meaningful contribution to the domestic
justice system.
5.2 Expectations towards the ECCC
Having a long-awaited criminal tribunal such as the ECCC, located in the country
where the serious crimes happened, provides good opportunity for the Cambodian
people to express their view on the process. This is one of the advantages of the
tribunal: not only is the Court close to the victims and the responsible persons, but
it is also a place where people can see the trials in person. There is a mixture of
7OSJI, ‘Recent Development at the Extraordinary Chambers in the Courts of Cambodia’,

(December 2010), available at http://www.opensocietyfoundations.org/reports/recent-developments-
extraordinary-chambers-courts-cambodia-december-2010, (visited 15 June 2015), at 5.
8Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-F28), Supreme Chamber, 3 February
2012.
9For more information, please visit DC-Cam’s website available at www.dccam.org (visited 15
June 2015).
hopes and expectations regarding the ECCC and its justice process.10 These hopes
and expectations vary for the Cambodian people, especially the victims who have
directly and indirectly suffered as a result of the Khmer Rouge regime, based on
their own experiences and perceptions of the trial proceedings. When discussing
these hopes and expectations it is also relevant to look at opportunities in the long-
term that are deriving from the Court, especially beyond its existence.
5.2.1 Trial Attendance and Participation
Unlike the Hague-based international criminal tribunals namely the International

Criminal Tribunal for former Yugoslavia (ICTY), the International Criminal
Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), the
presence and participation of the victims at the ECCC, acting as Civil Parties, is
considerably higher. There are several reasons why: first, the ECCC is located in
Cambodia where the crimes were being committed. Thus, it is easier for interested
individuals to participate in the trials as observers, witnesses, or Civil Parties with
assistance from the Court. Second, and of particular consideration, the majority of
Civil Parties are assisted with practical elements, like food, accommodation and
travel. In addition, they are provided with psychological support from the Court’s
Victims Support Section (VSS) and the intermediary NGOs, which make this par-
ticipation a reality.
Practically speaking, with the support of NGOs, the VSS arranges that at least
eight to ten Civil Parties may attend court proceedings together with their law-
yers on each hearing date. This attendance schedule is arranged under the court
management guidelines on a rotating basis which enables different Civil Parties
to sit in the courtroom. For instance, there were in total approximately 60 Civil
Parties attending the Duch’s hearing from the beginning until the end on a rotat-
ing basis.
Although the presence or attendance in the courtroom is a very short period of
time, some Civil Parties feel strongly that it was an important and positive moment
in their lives. Additionally, they believe that such trial attendance and participation
in the Tribunal process was meaningful for them. For example, Ms. Chum Nov, a
Civil Party in Case 001, expressed her feeling after her presence in the court room:
10Hopes and expectations of the victims about the ECCC are varied and these hopes and expec-
tations are collected based on the author’s observation, experience and participation in various
public forums organized by both the intermediary NGOs and the VSS. These expectations are
also gathered from his work and the CHRAC team on the collection of Case 002 Civil Party sto-
ries; see CHRAC Stories of the Civil Parties participating in the ECCC, June 2014, available at
http://www.chrac.org/eng/index.php?page=chrac_reports (visited 15 June 2015).
108 J. Oeung
I wanted to attend the court room together with my lawyer. Although I was not invited to
give testimonies like other Civil Parties, my presence in the room in front of the bench of
judges and especially Duch, made me feel better and less stressful of what I had been
worried before. I thought this confrontation was important for justice, which was now
being done for me and my relative who passed away under the supervision of Duch.11
In their interviews, many participating Civil Parties have indicated that their
participation in the trial made them feel stronger mentally and increased their
hopefulness about the future. As a result, they are more positive than the general
adult population who lived under the Khmer Rouge regime.12
5.2.2 Obtaining ‘Justice’ from the Tribunal
A number of scholars and experts define ‘justice’ and categorize it differently.

According to Charles Villa-Vicencio,13 there are several types of justice namely:
retributive justice, deterrent justice, compensatory justice, rehabilitative justice,
exonerative justice, restorative justice. Each has a time and place in a given situa-
tion to be appropriately applied. Not solely one model of justice can cover all
needs for justice because each term has its own meaning and specific context.
Taking this context into consideration, it is wise to reflect on the theory and
meanings of the concept of “justice” in real life, especially for those who have
been waiting for justice for more than 30 years, like in the Cambodian context.
Here there are two types of justice that we see. They are retributive and restorative
justice.14 Both may reflect the reality of the work of the Tribunal and efforts sur-
rounding the Khmer Rouge trials as we see it.
The concept of “justice”, practically speaking, is defined as establishing the
truth of what happened in the past and the court judgment is expected to be fair.
This also means that responsible perpetrators must be convicted and sentenced to
prison terms according to the crimes with which they are charged. This concept
has, however, changed over time, according to population-based surveys. These
population-based surveys were conducted in 2008 and in 2010 by the Human
Rights Center, University of California at Berkeley. The surveys found that 74 %
of the respondents (including many Civil Parties) who were interviewed in 2008,
when the first case was being heard, perceived that the ECCC would render
11CivilParty Chum Nov, Date of interview in 2008, copy on file with the author.
12Pham et al. 2011, at 281.
13For detailed discussion about the concept of ‘justice’ refer to: Charles 2004, at 33.
14For further discussions on this concept, see: McGonigle 2009, at 127–149 and Niroshika Vaz
2009, at 2–7.
justice, whereas in 2010, 76 % recognized that the ECCC provided justice to
them.15 These statistics reflect the realities of hopes and expectations of many peo-
ple while Duch (the only accused in Case 001) was on trial. They also point out
that many were not so happy with the sentence of 35 years ordered by the Trial
Chamber. This perception changed significantly when the Supreme Court
Chamber decided to sentence Duch to life imprisonment. Regarding this matter,
long-term ECCC monitor Heather Ryan puts it in the following words:
Evaluating whether or not a sentence is sufficient for either the victim or the perpetrator is
understandably difficult. On the one hand, we can look at how well the sentence follows
established jurisprudence. Duch was found guilty of crimes under international law. In its
decision, the Court clearly looked at well-established jurisprudence from other interna-
tional tribunals. Indeed, the sentence was consistent—if even somewhat harsher—than
those delivered by the International Criminal Tribunal for the former Yugoslavia and the
International Criminal Tribunal for Rwanda for similar crimes.16
The Cambodian peoples’ perception of justice, especially the surviving victims,

is similar for Case 002/01, which involved two senior former Khmer Rouge lead-
ers. In this case, the Trial Chamber convicted Noun Chea and Khieu Samphan of
life imprisonment for crimes against humanity committed during their reign of
power.17 Although the judgment in Case 002/01 is not the only means to heal and
reconcile, this moment in international legal justice through the ECCC is one that
many have been waiting for. Regardless of how varied their views are, a fair trial
procedure and the notion of retribution is of significance for all Cambodians.18
5.2.3 Acknowledgment and Support
One of the fundamental measurements of victim participation in criminal proceed-

ings is linked with recognition of harm and suffering that surviving victims had
experienced. The Khmer Rouge victims are so keen to be recognized as ‘victims’
and their applications to the ECCC should be admissible as Civil Parties. Being a
victim of crime(s) is painful, but recognizing them as a ‘victim’ of that crime is
necessary to restore the person’s dignity and his or her right before a court of law.
15P. Phuong et al., ‘After the Trial: A Population-based survey on Knowledge and Perception
of Justice and the ECCC’ (Phnom Penh: Human Rights Center 2011), available at http://www.
chrac.org/eng/index.php?page=chrac_reports (visited 15 June 2015), at 29. These figures include
respondents that lived during the Khmer Rouge regime and those who did not.
16H. Ryan, ‘What Makes for Justice in Cambodia’, (28 July 2010), available online at: http://ww
w.opensocietyfoundations.org/voices/what-makes-justice-cambodia (visited 15 June 2015).

17Case 001/02 Trial Judgment, supra note 1.
18Sok-Kheang Ly, ‘Justice for Reconciliation’s Sake’, The Phnom Penh Post Newspaper,
7 August 2014.
110 J. Oeung
Survey findings on this issue have similarly stressed how the recognition of the
victims and their past experiences with necessary support is critical to making
their participation in the criminal proceedings possible and meaningful. Survivors
of the genocide will at least know for the first time that their sufferings are
acknowledged and taken seriously by the world. Although a legal accounting of
the crimes of the Khmer Rouge era cannot restore the harms and suffering of
Cambodians, it may give them back their history.19
In general, despite some mistrust or frustration with the Tribunal’s process, the
victims participating in the ECCC both as Civil Parties and Civil Party
Applicants20 show their high level of appreciation for the ECCC including their
attitudes towards the Duch’s trial. However, they made suggestions on how the
Tribunal could offer greater support and build the communication networks within
the communities beyond the lawyers, court officials, and NGOs staff.21 For most
victims, recognizing them as Civil Parties in the ECCC’s proceedings is even more
important than anything else, because they believe that their participation helps
justice to be achieved for their lost loved ones.
Furthermore, the strong support for victims and others is an essential element in
their participation. Such support should include logistical, financial, moral, psycho-
logical and legal, which are instrumental to encourage and motivate their participation
in the ECCC. In the past, several studies found that Cambodian people have high rates
of trauma-related mental health disorders which require a lot of attention and care.
Although the Khmer Rouge era ended 30 years ago, the victims recall certain memo-
ries when they decide to join the ECCC’s process through filing complaints against
the accused. Therefore, their pain reappears, and they need psychosocial support to
continue to stand and challenge the accused in the court room before the judges.
Psychosocial support is also required at all stages of the proceedings (i.e.
before, during and after the trials) for many Civil Parties and applicants. However,
in practice, such assistance has been provided almost solely by Transcultural
Psychosocial Organization (TPO)—an independent and psychological support
NGO—and not from the court. Many Civil Parties and witnesses and other par-
ticipating in the process have benefited from TPO’s assistance. Thus, several sup-
portive approaches have been developed through the process for maximizing the
service deliveries to the victims as well as to ensure that they are not necessarily
19B. Keo, ‘Paper on Transitional Justice in Cambodia’, (2010), Presentation in an advanced train-
ing course on international protection of human rights organized by Institute for Human Rights,
Finland.
20Rule 23bis ECCC Internal Rule (Revision 8th, August 2011) states:
In order for Civil Party action to be admissible, the Civil Party applicant shall:
(a) be clearly identified and (b) demonstrate as a direct consequence of at least one of the
crimes alleged against the Charged Person, that he or she has in fact suffered physical,
material or psychological injury upon which a claim of collective and moral reparation
might be based. When considering the admissibility of the Civil Party application, the
Co-Investigating judges shall be satisfied the facts alleged in support of the application are
more likely than not to be true […].
21Kirchenbauer et al. 2013, at 61–63.
re-traumatized through their participation in the ECCC’s proceedings. With regard

to this, TPO’s approach is a form of testimonial therapy, self-help groups, and
story-telling. On this matter, N. Kirchenbauer, M. Balthazard, L. Ky and P. Vinck
point out in their baseline study about Civil Party’s perceptions:
As almost of 86 % of Civil Parties interviewed talk “often” or “sometimes” to other survi-
vors about their painful experiences, it would seem to be a promising approach to base
psychosocial interventions on groups of survivors that are empowered or organize self-
help groups on a regular basis.22
Furthermore, given the long established network, coordination and solidar-

ity among the NGOs in support of victim participation at the ECCC, an increas-
ing positive impact on the lives of Civil Parties beyond the Court mandate has
occurred because they have frequently relied on these NGOs to bridge them to
attend the trials.
In summary, these are not the only parameters that can measure the levels of
victim participation at the ECCC and their satisfactions about the ECCC. These
parameters are in fact only established based on the practices of the scheme pro-
vided by the Internal Rules.23 Without adequate early planning and funding alloca-
tion in place for the whole strategy in dealing with victim participation, the
outcomes would have been slightly different. Especially, to date the Tribunal is
challenged with funding sustainability for the whole operation and in particular for
the VSS to effectively implement its mandates including outreach and designing of
non-judicial measures or projects that can address different expectations of the
Civil Parties (claims) and broader victims as well as coordinating an effective legal
presentation in Case 002 with the Lead Co-lawyers.
5.2.4 Truth Seeking
Many victims of the Khmer Rouge who have filed complaints to the ECCC as
Civil Parties wanted to take part in the truth-seeking process and to know what
happened during the Khmer Rouge period and find an answer to the question:
“Why did Khmer kill Khmer?” Their participation is important to seek the truth,
even if the Tribunal alone cannot answer all the historical questions by the victims.
DC-Cam has provided more than 50 % of documents to the ECCC, revealing that
among many other aspects victims of the Khmer Rouge wanted to see the truth.
The term “truth” is complex and varies, depending on context. Truth-seeking
projects and commissions have emphasized several forms of truth when they
22Kirchenbauer et al. 2013, at 67.

23The ‘Internal Rules’ are a consolidation of applicable Cambodian procedure for proceeding
before the ECCC. Pursuant to Article 20 new, 33 new of the ECCC Law and Article 12(1) of the
Agreement, additional rules are to be adopted where the existing procedures do not deal with a
particular matter, or if there is uncertainty regarding their interpretation or application or if there
is a question regarding their consistency with international standards.
112 J. Oeung
define the term at all. Truth is also subject to numerous interpretations within
Cambodia. For many Cambodian people, knowing “the truth” about the Khmer
Rouge regime means, above all, learning the facts surrounding their own painful
experiences and the fate of lost loved ones. To others, truth is primarily something
for victims to express; a device for empowerment and opportunity to have one’s
voice heard after more than 30 years of being silenced. Others want to understand
why the abuses happened, to hear explanations directly from the mouths of perpe-
trators and to understand how the broader system of repression functioned.24
A survey conducted by S. Linton25 before the establishment of the ECCC found
that many Cambodians do not want to forget.26 It has also established that 73.87 %
of respondents felt that it was important to learn more about the truth of the Khmer
Rouge regime. 67.60 % wanted to talk about their experiences. These figures seem
to be reaffirmed by another population-based survey, which was conducted during
the ongoing Khmer Rouge trials by the ECCC. The new survey found out that 77 %
of all respondents said they wanted to know more about what happened during the
Khmer Rouge regime, while 85 % of those who did not live under the Khmer
Rouge regime wanted to learn more. When asked about the value of truth seeking,
86 % of respondents believed establishing the truth was necessary. 64 % agreed
with the statement that people could not reconcile their differences without know-
ing the truth about what happened.27 Similarly, another author whose experiences
were collected from their parents’ story telling during the Khmer Rouge regime
also agrees that the Khmer Rouge tribunal is important because it allows the nation
to find the truth, and allows the victims and perpetrators to come to term with the
past, to reconcile and to heal. This is what the Tribunal represents at the moment.28
5.2.5 Reparations Claims
As one of the procedural rights exercised by victims joining as “Civil Parties” in

the ECCC, the right to reparations is important and it is granted by the Tribunal’s
Internal Rules. However, when it comes to implementation, it seems that the
Internal Rules limit the right of Civil Parties to request reparations. In addition, as
currently conceived, even those reparations that can be awarded to Civil Parties are
limited both by the financial means of the accused and by the “moral and collec-
tive” nature that may be awarded. The ECCC is the first hybrid tribunal with a rep-
aration mandate similar to the ICC’s. However, the ECCC has limitation to
24Ciorciari and Ramji-Nogales 2012, at 4. The South African Truth and Reconciliation Commission
(TRC) was the most explicit, emphasizing four forms of truth: factual or forensic truth, personal or
narrative truth, social or dialogue that emerge from public interaction and debate, and restorative truth.
25Linton 2004.
26Ibid., at 27.
27Pham et al. 2009, at 27.
28Fatily et al. 2014, at 100.
enforce reparations mandate on the ground, whereas the ICC has a specific trust
fund unit29 that is responsible for designing and implementing any reparations.
Reparations can only be sought by victims who participate as Civil Parties in
the proceedings. However, the Court’s current Internal Rules limit the scope of
reparations in various ways. Rule 23 allows victims to seek only collective and
moral reparations, presumably as opposed to individual or material reparations.30
Following the spirit of this rule, only a very small proportion of Khmer Rouge vic-
tims will benefit from the reparations awarded by the ECCC’s judicial process. It
is questionable whether the limitation to collective and moral reparation is in
accordance with international standards. Many Cambodian NGOs have advocated
strongly for making the ECCC’s collective reparations mandate a meaningful one
for the participating survivors, despite many challenges foreseen in the Cambodian
context. These NGOs organized a series of advocacy conferences and workshops,
sponsored reparations experts to visit Cambodia and made submissions to the
Court to promote changes in the Rules allowing for more flexibility in the imple-
mentation of its reparations mandate.31
In spite of these efforts, there were no tangible reparations afforded to victims
participating in the first trial (Case 001). In the Duch Appeal Judgment rendered in
early February 2012 by the Supreme Court Chamber, it was made clear that there
were no concrete reparation projects granted to the Civil Parties upon their
requests. However, the Supreme Court Chamber recognizes the harms suffered by
the victims of S-21 crimes by additionally admitting some more Civil Parties
based on the legal criteria and included their names in the final verdict and in the
official webpage of the ECCC given the limitation of reparation mandate of the
Tribunal and the convicted person Duch’s indigence.32 Only after strong reactions
from the Civil Parties and their lawyers and the NGOs, the 7th Plenary Session of
the ECCC considered to expand the VSS’s mandate to explore a broader range of
measures outside the judicial process in order to respond to these broader needs of
victims. New Internal Rule 12bis (3) states that:
The Victims Support Section shall be entrusted with the development and implementation
of non-judicial programs and measures addressing the broader interest of victims. Such
programs, may appropriate, be developed and implemented in collaboration with govern-
mental and non-governmental entities external to the ECCC.33
29More information about the ICC’s Reparations programme and trust fund for victims before the
ICC, refer to http://www.trustfundforvictims.org (visited 15 June 2015).
30Sperfeldt 2009, at 2.
31CHRAC/ECCC Victims Unit, ‘Reparations for Victims of the Khmer Rouge Regime’, Report
of a conference held in Phnom Penh on 26–27 November 2008, (Phnom Penh: CHRAC 2009),
available at http://www.chrac.org/eng/index.php?page=chrac_reports (visited 15 June 2015), at 5.
32Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-F28), Supreme Court Chamber,
3 February 2012, §§ 319–321.

33Revised Internal Rules (Rev. 7), 23 February 2011, available at http://www.eccc.gov.kh/en/
documents/legal/internal-rules-rev7 (visited 15 June 2015).

114 J. Oeung
Through this amendment, the VSS, the NGOs and Civil Party, Civil Party law-
yers had jointly worked together to develop several meaningful reparation and
restorative project proposals which will serve the Civil Parties’ and broader vic-
tims’ interests in a variety of forms such as local memorialization initiatives, docu-
mentation, outreach and exhibitions, education and psycho-social support,
publishing Civil Parties names, distribution of the judgment and community learn-
ing centers. During the closing of Case 002/001, the Civil Party Lead Co-Lawyers
presented to the Trial Chamber a list of initial specification of 13 types of repara-
tions awards and potential funders.34 Out of the 13 reparation projects, 11 awards
have been granted by the Trial Chamber: a national remembrance day, the con-
struction of a public memorial in Phnom Penh, testimonial therapy, self-help
groups, a permanent exhibition and a mobile exhibition as well as an education
project, the inclusion of a chapter of forced population moment and execution at
Tuol Po Chrey into the school curriculum, construction of a peace learning center,
a booklet publication on facts adjudicated in Case 002/01 and civil party participa-
tion, two editions of the verdict in Case 002/01 and the inclusion of Civil Party
names in the ECCC website.35
Furthermore, to materialize the efforts towards more reparation awards to be
granted by the Chamber in Case 002/02, the Civil Party Lead Co-Lawyers together
with the court’s VSS also organized another stakeholders consultation meeting
among Civil Parties, Civil Party lawyers, Civil Society Organisations and donors
on 11 June 2014 aiming to broaden up the possibility and flexibility for inclusive
and early discussion about a reparations scheme.36 These initial specifications of
reparation projects will be presented to the Trial Chamber when Case 002/02 starts
the substantive hearing late October 2014.
5.2.6 Reconciliation Within the Community and Society
There are a number of studies regarding reconciliation in Cambodia, especially

with respect to the Khmer Rouge regime. In theory, “reconciliation” is understood
widely as a long-term process, the objectives of which may themselves be rich
concepts such as truth, justice, and peace.37 Reconciliation involves the process of
learning how to co-exist and work together with people who one does not like or is
34See more at http://www.eccc.gov.kh/en/articles/meaningful-reparation-khmer-rouge-victims
(visited 15 June 2015). The list of reparation projects were collected through consultations with
various civil parties and their lawyers as well as the NGOs under the facilitation of both Civil
Party Lead Co-Lawyers and Victims Support Section.
35Case 002/01 Trial Judgment, supra note 1, §§ 604–620.
36ECCC’s Press Release, ‘Planning Begins for Case 002/02 Reparation Requests’, 4 June 2014, avail-
able at http://www.eccc.gov.kh/en/articles/planning-begins-case-00202-reparation-requests (visited 15

June 2015).
37Ciociari and Ramji-Nogales 2012, at 4.
not liked by and coming to terms with personal negative experiences, whether one
be victim or perpetrator. Reconciliation as a process may be simply about assisting
people and through that the wider society, in order to get things back into perspec-
tive.38 The results of the study of Linton 2004 indicates that reconciliation for the
Cambodian people encompasses, but is wider than, the issue of relations between
ordinary Cambodians and the Khmer Rouge cadres. It is rarely as straightforward
as perpetrators reconciling with survivors/families of victims: the identities of
direct perpetrators are often not known, there were thousands of them, and many
were children at the time of the crime. Reconciliation in Cambodia encompasses
at the very least relations between town and city folk, former combatants on oppo-
site sides, victims and perpetrators—whether those who willingly participated, the
“unwilling” perpetrators who were forced to commit crimes or bystanders who
aided through their moral support and silence—within families, within
communities.39
Despite all the complexities and conditions of accountability, forgiveness, apol-
ogies and the like that arise after mass violence and atrocity, Cambodians want to
be reconciled with the Khmer Rouge and move together towards a better future.40
Another research also suggestes that the retributive approach of the judicial pro-
cess of the ECCC should be combined with a restorative approach with the estab-
lishment of a truth and reconciliation commission, which is important to promote
reconciliation process in Cambodia. The trial needs to be continued, however, at
the same time. A truth and reconciliation commission could be established to ena-
ble survivor victims to find sufficient justice and reveal the full account of the
truth. It will also promote forgiveness process between the victims and perpetra-
tors. And finally it will strengthen peace in this country.41
5.3 Facing and Addressing the Challenges
In addition to the different hopes and expectations by the public regarding the
Khmer Rouge trial, the ECCC itself has also been facing a number of key adminis-
trative, political, legal and financial challenges on its path towards a full delivery
of justice to the people of Cambodia.42 These challenges are significant to the suc-
cessful completion of the Tribunal and to address the above-mentioned hopes and
expectations of the people of Cambodia.
38Linton 2004, at 15.

39Ibid. at 14.
40Ibid., at 21.
41Meirio, at 16.
42These challenges are keys to determine the smooth operation of the administration of justice
and the court. These do not include other problems that the court had encountered such as
corruption allegations at the early stage.
116 J. Oeung
5.3.1 Trials of Case 002
The ECCC has completed Case 002/01 which involved two accused persons, Nuon
Chea (aged 88), brother No. 2 and former Head of People’s Assembly and Khieu
Samphan (aged 83), former Head of the Presidium of the Democratic Kampuchea
(DK). The hearing ended in November 2013, and the judgment was delivered by
the Trial Chamber on 7 August 2014. Case 002 is the most important and complex
case because it deals with the senior leaders of the regime. The accused persons
are charged with three serious crimes namely: (1) crimes against humanity, (2) war
crimes or grave breaches of the 1949 Geneva Convention, and (3) genocide.
Due to the legal complexity combined with a huge number of Civil Parties—
approximately 4,000—and tens of thousands of documents presented as evidence
and the deteriorating health condition of the two aging defendants, the Trial
Chamber decided to issue a severance order to divide the Case into several seg-
ments with mini trials. The first segment of the Case or known as Case 002/01
involves forced evacuation of the people from the city by the Khmer Rouge forces
and forced labor at the worksites, which are main elements of the crimes against
humanity which need to be proved and presented during the hearing. Out of 3,866,
there were 31 Civil Parties and 58 witnesses were called to provide testimonies
and the hearing ended on 31 October 2013 after conducting 222 days.43 The Trial
Chamber delivered the judgment on 7 August 2014, a historically important
moment for the many Cambodian people waiting to see justice done. Both Nuon
Chea and Khieu Samphan have been found guilty of crimes against humanity and
sentenced to life imprisonment by the Trial Chamber.
The two accused have appealed the judgment to the Supreme Court Chamber
and the date for the appeal judgment has yet to be announced. Given the current
fragile health situation of the co-accused, the Trial Chamber has now proceeded
with the commencement of Case 002/02 concerning the genocide charge. A sub-
stantive hearing started on 17 October 2014. However, it was adjourned until
January 2015 due to Khieu Samphan’s defence lawyers boycotting to attend the
trial, arguing that they did not have enough time to prepare for the appeal applica-
tion in Case 002/01. The Trial Chamber therefore decided to appoint a new
standby counsel for the accused.44
43ECCC’s Press Release, ‘Closing Statement in Case 002/01’, (31 October 2013), available at
http://www.eccc.gov.kh/en/media-center/press-releases?page=1 (visited 15 June 2015).

44ECCC’s Press Release, ‘Case 002/02 Commences Substantive Hearing on 17 October 2014’, 15
October 2014, available at http://www.eccc.gov.kh/en/articles/case-00202-substantive-hearings-

commence-17-october (visited 15 June 2015); ECCC, Press Release, ‘Hearing in Case 002/02
Adjourned Until January 2015’, 24 November 2014, available at: http://www.eccc.gov.kh/sites/
default/files/media/ECCC%20PR%2024%20Nov%202014%20Eng.pdf (visited 15 June 2015).
Case 002/002 contains genocide charges, internal purge, ill-treatment of bud-

dhists, and additionally, the issues of forced marriage and gender-based vio-
lence.45 Due to these facts, Case 002 will be challenging and will require effective
judicial decisions and clear direction.
5.3.2 Legal Complexity of and Political Interference

in Cases 003 and 004
Unlike Case 002 involving senior leaders of the Khmer Rouge regime, Cases 003
and 004 involve only mid and lower-level officials of the regime.46 Due to the fact
that there has been disagreement between the national Co-Prosecutor and interna-
tional Co-Prosecutor over the cases, there have been allegations by court observers
that political interference from the Cambodian Government occurred.47 This alle-
gation of interference has thus negatively affected these cases and created a per-
ceived lack of independence in the judicial investigation.48 No public information
has been released during the ongoing judicial investigations by the Office of the
Co-Investigating Judges (OCIJ), particularly by the international Co-Investigating
Judge. Case 003 involves two named suspects and Case 004 involves three sus-
pects.49 The complexity and the allegation of political inference with respect to
Cases 003 and 004 have made it difficult to know exactly whether these cases will
be sent to trial or dismissed. It is now in the hands of the Co-Investigating Judge.
In addition to these factors, it is important to note that at least three international
Co-Investigating Judges subsequently resigned from their posts. It is assumed that to
a large extent this is connected to the political interference and legal complexity of
45Statement by International Co-Prosecutor Nicholas Koumjian regarding Case 004, (24 April
2014), available at http://www.eccc.gov.kh/en/media-center/press-releases (visited 15 June 2015).
46There are two groups of suspects or charged persons fall under the personal jurisdiction of the
ECCC: ‘senior leader of the regime’ and ‘the most responsible person’ involving in committing
serious crimes during the Khmer Rouge period 17 April 1975–6 January 1979. For more infor-
mation about Cases 003 & 004, visit ECCC website at: http://www.eccc.gov.kh/en/how-can-you-
apply-become-civil-party-cases-003-and-004 (visited 15 June 2015).
47Bates 2010, at 58–60. See also, Open Society Justice Initiative (OSJI), ‘Recent Development at
the ECCC’, (November 2009), available at http://www.opensocietyfoundations.org/publications/

recent-developments-extraordinary-chambers-courts-cambodia-8 (visited 15 June 2015), at 5–7.
48Open Society Justice Initiative (OSJI), ‘Recent Development at the ECCC’, February 2012,
available at http://www.soros.org/sites/default/files/cambodia-eccc-20120233.pdf (visited 15 June

2015), at 5, 20–30. See also, Judge Blunk’s resignation statement, 14 October 2011, available at
http://www.eccc.gov.kh/en/articles/statement-international-co-investigating-judge (visited 15 June
2015).
49The suspects were officially named following the International Co-Investigating Judge’s
announcement to charge in absentia Mr. Meas Muth (Case 003), and Ms. Im Chaem and Mr. Ao
An (Case 004) respectively in March 2015.
118 J. Oeung
the cases. All named suspects are legally represented by both national and interna-
tional defence lawyers. After the official charges by International Co-Investigating
Judge Harmon, the defence has been allowed to access their respective case file in
order to prepare for their cases and ensure the right to a fair trial.50
5.3.3 Budgetary Constraint and Uncertainty
Given the current context, the ECCC has been struggling with a financial deficit,
particularly on the Cambodian side of the Tribunal. At least two strikes were
staged by Cambodian staffs of the Tribunal due to late payment of their salaries,
especially in March 2013. This then led to a reduction in number of Cambodian
staff and the UN side had to lend part of its budget to pay the salaries of the
national staff. However, this is not a good solution and therefore the same problem
has arisen again.51 The lack of Cambodian government’s commitment to con-
stantly allocate the necessary budget to contribute the ECCC’s national component
required by the Agreement remains a financial challenge and that means the gov-
ernment has failed to fulfil its obligation.52 Furthermore, up to now there has been
no concrete indication of political commitment from both the Cambodian govern-
ment and the UN’s member states to continue funding the ongoing operation of the
ECCC because only few key donor countries have expressed their interests in pro-
viding financial support. Some donor countries53 have pledged their contributions
to support the ECCC; however, they do not expressly mention their support to the
national side of the court other than the international side, which makes it even
more difficult to guarantee the smooth working condition of the national staff.
Without firm commitment of the Cambodian government and donor countries of
the ECCC it would therefore jeopardize the current judicial process and thereby it
threatens the proper administration of justice that the Tribunal is undertaking.54
50ECCC, Press Release, ‘Statement by International Co-Investigating Judge regarding Case

004’, 27 March 2015, available at: http://www.eccc.gov.kh/sites/default/files/media/ECCC%20
PR%20Ao%20An%20ICIJ%2027%20March%202015%20ENGLISH.pdf (visited 15 June 2015);
ECCC Press Release, ‘Statement by International Co-Investigating Judge regarding Case 003’,
3 March 2015, available at: http://www.eccc.gov.kh/sites/default/files/media/ECCC%20Meas%20
Muth%20ICIJ%203%20Mar%202015%20Eng.pdf.
51Statement of the Acting Director of Administration related to the Lack of Cash Flow to pay
national staff salary for the month of December 2012 and budget situation for 2013, available
at http://www.eccc.gov.kh/en/document/public-affair/statement-acting-director-office-administra-
tion-related-lack-cash-flow-pay-ec (visited 15 June 2015).
52CHRAC Statement, ‘ECCC at the Crossroad: Obligations to Ensure Road to Justice Completely
Achieved’, (Phnom Penh, 6 March 2013), available at http://www.chrac.org/eng/ (visited 15 June

2015).
53These donor countries include: Japan, the United States, the European Union, Sweden, Norway,
Germany, and others.

with the author.

5.4 An Opportunity for the Tribunal’s Legacy:

Beyond the ECCC
There have been many expectations placed on the ECCC. For example, many
believe that this Tribunal will leave a positive legacy for Cambodia in its domestic
justice sector. However, even from a more realistic point of view, there are many
areas to which the Court could potentially contribute positively. Although the cen-
tral aim of the ECCC is to prosecute senior leaders and those most responsible for
the atrocities committed during the Khmer Rouge regime, it has additionally been
promoted by both the United Nations and the Royal Government of Cambodia as a
model for Cambodia’s domestic criminal courts.55
Despite this promotion, to date there has been very little active engagement
between the ECCC’s judges and lawyers and experts working at the national level
to consider ways in which this model might be used to achieve the most positive
results in the domestic system. In comparison with the national court system, high
standards exist at the ECCC, especially in relation to the rights of the accused,
detention procedures, witness and victim protection and court management more
generally. The ECCC has created an internal Legacy Advisory Group,56 but there
is no concrete work plan and no continuous activities have been implemented to
date.57 Concrete actions would need to follow by the Government, the ECCC and
international donors, if the aim is to maximize the Tribunal’s positive legacy that
can impact on the judicial system in Cambodia. The actors outside the tribunal
have taken initiatives to discuss the ECCC’s potential legacies,58 especially pro-
jects which are implemented by the Office of the High Commissioner for Human
Rights in Cambodia (OHCHR) and few local NGOs. Among others, OHCHR has
worked and launched an Annotated Code of Criminal Procedure Code of the
Kingdom of Cambodia by extracting jurisprudences at the ECCC aiming to con-
tribute to the current practices by the judicial officials and lawyers at the domestic
court.59 Furthermore, OHCHR has also initiated judicial roundtables involving
55Speeches delivered by Deputy Prime Minister Sok An of the Royal Government of Cambodia
and United Nations Secretary-General Ban Ki-moon during Ban’s visit to Cambodia and ECCC
(Phnom Penh, 27 October 2010).
56The ECCC Legacy Advisory Group was created by a Circular of the Office of Administration
signed by Acting Director and Deputy Director on 26 March 2010. It aims to develop, keep and
disseminate legacy of the Court. Under it, a Legacy Secretariat is created to implement the pro-
jects and legacy initiatives by the Advisor Group.
with the author.

58Meisenberg et al. 2012. This report was produced as the result of a high-level conference
jointly organized by the ECCC and CHRAC on 13–14 September 2012, available at http://www.
chrac.org/eng/index.php?page=chrac_reports (visited 15 June 2015).
59See the full Annotated Code of the Cambodian Criminal Procedures, available at http://cam
bodia.ohchr.org/WebDOCs/DocProgrammes/Annotated_Cambodian_Code_of_Criminal_
Procedure_Eng.pdf (visited 15 June 2015).
120 J. Oeung
judicial officials and fair trial rights clubs with the participation of law students
and graduates aiming at building their capacity on fair trial rights by drawing the
best practices and jurisprudences at the ECCC.60
Other potential areas of legacy could involve new developments in an emerging
memory culture in Cambodia, further documentation programs beyond the limita-
tions of criminal trials, extended services in psycho-social and other medical sup-
port to survivors, and increased efforts to promote education about the past among
the general population and the youth. To date, various small pilot projects have
already been initiated and undertaken by Cambodian NGOs in order to potentially
provide valuable lessons learned for future country-wide programs. For example,
DC-Cam, which is currently active in supplying documentations related to the
Khmer Rouge regime to the ECCC, planning to create an institute that will focus
on genocide education, research and documentation. Youth for Peace (YfP) and
Kdei Karuna Organisation (KdK)61 have respectively worked with youth commu-
nity and contributed to the building of a number of locally community-based
memorials with the participation of the people in the community and local authori-
ties aiming to maintain and remember the Khmer Rouge atrocities through art-
works, exhibitions, documentation and story-sharing. They will become local
learning centers, especially for the younger generation in order to learn about what
happened during the Khmer Rouge reign and to facilitate the debate among them,
so that they will not forget the past but learn how they all can collectively build a
bright future within their community and the society as a whole.
5.5 Conclusion
The ECCC’s in-situ location creates many expectations among the Cambodian
people, particularly victims who have participated as Civil Parties. It is the first-
ever international criminal law mechanism that involves a huge number of victims
of mass crimes in the criminal proceedings. The people’s expectations include trial
attendance and participation, obtaining justice, seeking truth, acknowledgement
and support, reconciliation, and reparations. These expectations have, however,
changed overtime as the trials proceed and verdicts are issued. While the tribunal
is keen to achieve “justice”, at the same time it faces numerous difficulties and
challenges—financially, administratively, politically and legally. These include the
complexity of the Case 002 trial given the advanced age of the accused and politi-
cal interference and judicial confidentiality in Cases 003 and 004 investigations.
60See more information about the OHCHR’s Legacy Project at http://cambodia.ohchr.org/EN/

PagesFiles/ECCC_legacy_program.htm (visited 15 June 2015).
61For more information about these projects, respectively visit www.yfpcambodia.org and www.kdei-
karuna.org (both visited 15 June 2015).

Nevertheless, there are opportunities to overcome these challenges by the Tribunal

itself and with the contribution of its supporters in order to ensure a proper admin-
istration of justice.
Given the ECCC existence in the country where the crimes were committed, it
is also noted that there are many actors that are crucial to this process, such as the
NGOs, who have extensively contributed on the ground since the Court’s judicial
activities. With their contributions, the criminal process has become more mean-
ingful in order to ensure that ‘justice must be done and seen to be done’ for the
people of Cambodia who have been waiting for more than 30 years.
References
Bates A (2010) Transitional Justice in Cambodia: Analytical Report. ATLAS Project/British

Institute of International Comparative Law, Paris
Charles V (2004) Restorative justice. In: Villa-Vicencio C, Doxander E (ed) Pieces of the Puzzle:
Keywords on reconciliation and transitional justice, Rondebosch, Cape Town, pp 33–38
Ciorciari J, Ramji-Nogales J (2012) Lessons from Cambodia Experience with Truth and
Reconciliation. Buffalo Human Rights Review 19:193–217
Fatily S, Poole S, Senghul H (2014) Memory and the Khmer Rouge Tribunal. Cambodia Law
and Policy Journal 1:97-106
Kirchenbauer N, Balthazard M, Ky L, Vinck P, Pham P (2013) Victim Participation Before the
ECCC: Baseline Study of ADHOC’s Civil Party Scheme for Case 002
Linton S (2004) Reconciliation in Cambodia. Documentation Center of Cambodia, Phnom Penh
McGonigle B (2009) Two for the Price of One: Attempts by the Extraordinary Chambers in
the Courts of Cambodia to Combine Retributive and Restorative Justice Principle. Leiden
Journal of International Law 22:127–149
Meirio A (undated) Transitional Justice and Reconciliation in Cambodia: The Perspective of Survivors.
The Asian Scholar, Issue No. 7 www.asianscholarship.org/asf/ejourn/articles/Meirio.pdf. Accessed
15 June 2015
Meisenberg S, Stegmiller I, Oeung J (2012) Conference Report on Hybrid Perspectives on the
Legacies of the Extraordinary Chambers in the Courts of Cambodia, ECCC/CHRAC, Phnom
Penh
Niroshika Vaz A (2009) The Path to Reconciliation in Cambodia. Documentation Center of
Cambodia, Phnom Penh
Pham P, Vinck P, Balthazard M, Strasser J, Om C (2011) Victim Participation and the Trial of
Duch at the ECCC. Journal of Human Rights Practice 3:264–287
Pham P, Vinck P, Balthazard M, Hean S, Stover E (2009) So We Will Never Forget- A population
based survey on attitude about social reconstruction and the Extraordinary Chambers in the
Courts of Cambodia, Human Rights Center, University of California Berkley. www.adhoc-
cambodia.org/?p=2828. Accessed 15 June 2015
Sperfeldt C (2009) Reparations for Victims of the Khmer Rouge, OTJR Working Paper Series
www.otjr.crim.ox.ac.uk/materials/papers/41/SperfeldtFinal.pdf. Accessed 15 June 2015
Chapter 6
The Legacy of the ECCC
Viviane E. Dittrich
Abstract Against the backdrop of theorizing the construction of legacies the focus
here is on tracing the interest in legacy at the ECCC and in the Cambodian con-
text in lieu of assessing or measuring the effectiveness of the Tribunal per se. To
this end, the emphasis is placed on elucidating the role of the ECCC as temporary
institution and legacy leaver and the developed legacy program. By contributing an
innovative analysis, the chapter sheds light on the already ongoing legacy forma-
tion and the struggle over the power of interpretation. There was an early impetus
to pursue legacy at the ECCC, which however got caught up in a political tussle
about ownership of the narrative on legacy, and meaning making and funding, and
eventually was largely abandoned as a result. The Tribunal appears to have hes-
itantly or ambiguously embraced its role as legacy leaver as legacy engagement
has accelerated and decelerated in Cambodia over the past few years in light of
the politicization of legacy. The contestation of meaning about legacy and what the
ECCC could and should leave behind provides a window into the broader contesta-
tion and the normative significance of the construction of meaning in Cambodia.
The author is Postgraduate Researcher, Department of International Relations, London School of

Economics and Political Science (LSE).
Thank you to Mark Hoffman, Dave Rampton, Keith Raynor and Michelle Staggs Kelsall, and to
the editors of this volume, Simon Meisenberg and Ignaz Stegmiller, for comments on earlier draft
versions.
Special thanks go to all interviewees for being so generous with their time. All staff and former
staff from the ECCC and other officials, quoted anonymously here, have made their comments
in their personal capacity, and their remarks do not necessarily represent the views of the ECCC,
other organisations, or the United Nations.
V.E. Dittrich (*)
Department of International Relations,
London School of Economics and Political Science, London, UK
e-mail: V.Dittrich@lse.ac.uk

DOI 10.1007/978-94-6265-105-0_6
124 V.E. Dittrich
Keywords Legacy · Outreach · Ownership · Hybrid courts · Funding · Victim
participation
Contents
6.1 Introduction.......................................................................................................................... 124
6.2 ECCC as Temporary Institution........................................................................................... 126
6.3 ECCC as Legacy Leaver...................................................................................................... 129
6.3.1 Developing a Legacy Vision...................................................................................... 129
6.3.2 Professionalizing Legacy........................................................................................... 131
6.3.3 Implementing Legacy Projects.................................................................................. 133
6.4 Concept of Legacy............................................................................................................... 135
6.4.1 Language of Legacy................................................................................................... 136
6.4.2 Social Construction of Legacies................................................................................ 138
6.5 Constructions of Legacies.................................................................................................... 140
6.5.1 Meaning Making........................................................................................................ 142
6.5.2 Ownership Claims...................................................................................................... 146
6.5.3 Funding Requirements............................................................................................... 152
6.6 Conclusion........................................................................................................................... 154
References................................................................................................................................... 155
6.1 Introduction
The Extraordinary Chambers in the Courts of Cambodia (ECCC or Tribunal) pre-

sented its first official Completion Plan in March 2014, nearly a decade after its
establishment.1 Judicial proceedings in Case 001 against Kaing Guek Eav alias
Duch have been fully concluded after issuance of the appeal judgment.2 The first
trial judgment in Case 002 against Khieu Samphan and Nuon Chea was rendered
on 7 August 2014.3 As possible end dates for ongoing judicial proceedings are
revised, attention has increasingly turned to what the ECCC means, has meant and
may mean in the future. The question of impact and legacy confronts the institu-
tion. Though the ECCC is not in a unique position in this regard, the contestation
of meaning about legacy and what the Tribunal could and should leave behind
seems to provide a window into the broader contestation of meaning about the
normative significance of the construction of meaning in Cambodia.
Talk about the completion and legacy of the international criminal tribunals is
all pervasive. For a decade now the topic has been ubiquitous and legacy has
become a buzzword. The awareness that international criminal tribunals should
leave a lasting impact beyond prosecuting a select number of individuals is
1ECCC, ‘Completion Plan’, March 2014, available at http://ww.eccc.gov.kh/en/eccc-completion-

plan-march-2014 (visited 15 June 2015).
2Judgment, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-F28), Appeals Chamber, 3
February 2012.
3Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August 2014.
6 The Legacy of the ECCC 125
palpable. This does not seem coincidental as the International Criminal Tribunals
for the former Yugoslavia and for Rwanda (ICTY and ICTR)4 are in the throes of
their respective completion strategies, first formalized in 2003 and 2004,5 transi-
tioning to what has become known as ‘residual mechanisms’, their successor insti-
tutions that continue the ongoing obligations or residual functions that will have to
necessarily remain.6 The Special Court for Sierra Leone (SCSL) was the first con-
temporary court to ceremonially close its doors in December 2013 and pioneered
many legacy efforts.7 Often, however, stakeholders neglected to recognize that
serious attention to a tribunal’s legacy should begin at its very creation, not just
once it closes. As UN Secretary-General Kofi Annan foreshadowed in the 2004
Report of the Secretary-General on the Rule of Law and Transitional Justice in
Conflict and Post-Conflict Societies: ‘…it is essential that, from the moment any
future international or hybrid tribunal is established, consideration be given, as a
priority, to the ultimate exit strategy and intended legacy in the country con-
cerned.’8 The ECCC provides an interesting case in this regard.
The focus here is on tracing the interest in legacy at the ECCC and in the
Cambodian context against the backdrop of theorizing the construction of lega-
cies in lieu of assessing or measuring the effectiveness of the tribunal per se. To
this end, the emphasis is placed on elucidating the role of the ECCC as temporary
institution and legacy leaver and the developed legacy program which has been
reluctantly owned, selectively promoted and realized. Consideration is also given
to the role and legacy initiatives of a multitude of actors. Such a wider perspec-
tive complements and enriches the fine-grained legal analyses of particular topics
concerning the ECCC’s legal framework, procedures and jurisprudence. Following
a discussion of the broader theoretical dimension of legacy and developments
across the international criminal tribunals this chapter highlights the importance
of paying closer attention to the multifaceted nature of legacy, the dynamic unfold-
ing of multiple legacies, related power struggles and political import of legacy as
a term, and of bearing in mind the contemporary political and social realities of
Cambodia.
4For further analysis of the legal basis, authority, and operations of these tribunals, see Schabas
2006.
5UN Docs S/RES/1503, 28 August 2003; S/RES/1534, 26 March 2004.
6The Mechanism for International Criminal Tribunals was established on 22 December 2010.
The ICTR branch in Arusha commenced functioning on 1 July 2012, the ICTY branch com-
menced functioning on 1 July 2013. See UN Doc. S/RES/1966, 22 December 2010, and
Mechanism for International Criminal Tribunals Statute. See also Agreement between the
United Nations and the Government of Sierra Leone on the Establishment of a Residual Special
Court for Sierra Leone, August 2010, and Residual Special Court for Sierra Leone Agreement
(Ratification) Act 2011, enacted on 1 February 2012.
7See Dittrich 2014, 663–691.
8UN Doc. S/2004/616, 23 August 2004, § 46, at 16.
126 V.E. Dittrich
This chapter is divided into four parts. First, the establishment of the ECCC as
a temporary institution, its performance to date and path towards completion is
briefly sketched to set the stage. Second, the focus is directed to the leverage the
ECCC as legacy leaver has both utilized and generated to institutionalize its leg-
acy. This issue is considered through the prism of the institutionalization of legacy
as identified at other international criminal tribunals. It is argued that while the
ECCC has certainly concerned itself with legacy, efforts remain ad hoc, vague and
incomplete. Third, the concept of legacy is critically explored and a new frame-
work is presented with a focus on the dynamic construction process of legacies in
the plural. Finally, in light of the brief sketch of the diverse legacy actor landscape
certain key dynamics and tensions regarding meaning making, ownership claims
and funding requirements in light of the creation, contestation, and control of lega-
cies are critically highlighted. It is argued that the topic of impact and legacy is so
significant and so sensitive because it touches upon constructions of budget, own-
ership and meaning, raison d’être and legitimacy.
6.2 ECCC as Temporary Institution
The finite lifespan of the ECCC as a temporary institution was conditioned and
determined by its very establishment. In June 2003 the Agreement between the
United Nations and the Royal Government of the Kingdom of Cambodia to estab-
lish the ECCC was finalized after complex multi-year negotiations since 1997.9
The Agreement was approved by the National Assembly and Senate in October
2004.10 The mandate of the ECCC consists of ‘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 com-
mitted during the period from 17 April 1975 to 6 January 1979’.11 After a further
two years, the ECCC began its operations in February 2006, and became fully
operational after the adoption of its Internal Rules in June 2007. In contrast to the
international criminal tribunals possessing an international legal personality and
standing apart from national court systems, the ECCC is an internationally-assisted
domestic court as part of the Cambodian judiciary with the UN Assistance to the
Khmer Rouge Trials (UNAKRT)12 providing technical assistance. The politics
9Agreement between the United Nations and the Royal Government of the Kingdom of
Cambodia Concerning the Prosecution Under Cambodian Law of Crimes committed during the
Period of Democratic Kampuchea, 6 June 2003 (hereafter ECCC Agreement).
10Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as
promulgated on 27 October 2004, Chapter I, Article 1.

11ECCC Agreement, supra note 9, Article 1.
12See http://www.unakrt-online.org/ and http://www.eccc.gov.kh/ (visited 15 June 2015).
surrounding the establishment, composition or functioning of the ECCC are not

the main focus of the present chapter thus are not rehearsed here,13 however these
factors certainly have a bearing on legacy and legacy developments at the ECCC.
A brief review of the current state of judicial proceedings provides important
context. Since its establishment the ECCC has concluded one case, Case 001 with
76 Civil Parties. Kaing Guek Eav alias Duch, former Chairman of the notorious
S-21 security prison in Phnom Penh, was convicted by the Trial Chamber on 26
July 2010 and sentenced to 35 years.14 The judgment was appealed, but on 3
February 2012 the Supreme Court Chamber upheld Duch’s conviction and
increased the sentence to life imprisonment.15 Case 002 is still ongoing with 3867
Civil Parties, but has been severed into mini trials. The hearings of Case 002/01
concerning the administrative structures of the Democratic Kampuchea Regime
and focusing on the crime of forced transfer, but also including charges of extermi-
nation, murder and persecution, have been concluded, and the first trial judgment
was rendered on 7 August 2014 for the two co-defendants Nuon Chea, Pol Pot’s
second-in-command, known as ‘Brother Number 2’, and Khieu Sampahn, the for-
mer Head of State. Two other accused are no longer part of the proceedings: Ieng
Sary, former Foreign Minister, passed away on 14 March 2013 and proceedings
were terminated with immediate effect.16 Ieng Thirith, former Minister of Social
Affairs, has been found unfit to stand trial due to progressive dementia and pro-
ceedings were suspended in September 2012. The Supreme Court Chamber had
ordered that the second trial against Khieu Samphan and Nuon Chea, Case 002/02,
shall commence as soon as possible. However, trial hearings were adjourned on 24
November 2014 until January 2015 by the Trial Chamber in ‘consequence of the
continued refusal of counsel for Khieu Samphan to participate in the proceedings
in Case 002/02 before 29 December 2014, when the brief on Khieu Samphan’s
appeal in Case 002/01 is due’.17 There have been ongoing efforts to prepare two
more cases, Cases 003 and 004, against members of the military and provincial
authorities. After years of speculation and frequent opposition voiced by the
Cambodian government to proceed further, International Co-Investigating Judge
Mark Harmon charged two persons in absentia, Meas Muth in Case 003 and Im
Cheam in Case 004, on 3 March 2015. This chapter returns to the relevance of
developments in Cases 003 and 004 for legacy at the end.
13For an overview, see e.g. the previous chapters in Part I of this volume; Ainley 2003; Fawthrop
and Jarvis 2004; Ciorcari 2006; Scheffer 2012.
2010.
15Judgment, supra note 2.
16Decision, Nuon Chea and others (002/19-09-2007/ECCC-E270/1), Trial Chamber, 14 March
2013.
17ECCC, ‘Hearings in Case 002/02 Adjourned until January 2015’, 24 November 2014, available
at http://www.eccc.gov.kh/en/articles/hearings-case-00202-adjourned-until-january-2015 (visited
15 June 2015).
128 V.E. Dittrich
For any new institution the focus is on beginnings and not on endings.
Anticipating and framing the endgame, however big or small, is paramount, for
any ad hoc or temporally bound institution. As the political pressure to close
grows, three separate yet related issues appear most prominent and pressing in the
current political and legal considerations. The notions ‘completion strategy’,
‘residual function’ and ‘legacy’ have become terms of art and gradually become
part and parcel of tribunal parlance and activities.18 To be sure, certain aspects are
not comparable among the tribunals. For instance, unique challenges for the
ECCC arise from the timing of investigations and trials decades after the commis-
sion of crimes, the management structure, limited number of cases and old age of
the accused. However, compared to other tribunals, a formalized completion plan
for the ECCC was developed and presented rather late if judged by a strict tempo-
ral comparison. The initial timeline of three years has been revised and over the
last few years there have been calls to develop a completion strategy.19 The UN
Secretary-General formally advised the General Assembly in October 2013 that
the ECCC’s indicative court schedule ‘projects judicial activity until 2018, and
possibly beyond’.20 Upon recommendation by the Fifth Committee, a proposal
before the General Assembly was concerned with mandating the ECCC to elabo-
rate a completion strategy.21 Thus, it seems the latter is seen as a formalized
requirement for funding arrangements under the UN subvention system. The
ECCC Completion Plan, which is revised and updated quarterly, was first devel-
oped in March 2014 ‘through consultation by the Office of Administration with
the Judges of the Chambers, the Co-Investigating Judges and the Co-Prosecutors
for their respective responsibilities’.22 It is currently anticipated that the last judi-
cial milestone will be reached in summer 2019. The actual publication of a com-
pletion strategy remains a ‘mystery’ to some ECCC officials and close tribunal
observers since there has been some speculation as to the authorship and prove-
nance of the document within the Tribunal and the interest on the international and
national side in a concrete roadmap for closure.23
18Completion issues refer to completion of the mandate and all work prior to actual closure.
Residual functions are ongoing legal obligations, such as trials of fugitives, review of sentences,
and management of the archives, which will be continued by the so-called residual mechanisms.
Legacy has been understood to encompass what the tribunals will leave behind and how this is
being planned, preserved and promoted.
19See e.g. Open Society, ‘Salvaging Judicial Independence: The Need for a Principled
Completion Plan for the Extraordinary Chambers in the Courts of Cambodia’, November 2010,
available at http://www.opensocietyfoundations.org/sites/default/files/cambodia-khmer-rouge-
20101110.pdf (visited 15 June 2015).
20UN Doc. A/68/532, Request for a Subvention to the Extraordinary Chambers in the Courts of
Cambodia, 16 October 2013, § 38.

21See UN Doc. A768/7/Add. 12, Thirteenth Report of the Advisory Committee on Advisory and
Budgetary Questions on the Proposed Programme Budget for the Biennium 2014–15, §32(e).
22ECCC, ‘Completion Plan’, Revision 1, July 2014, available at http://www.eccc.gov.kh/en/eccc-
completion-plan-revision-1 (visited 15 June 2015).

23Author interviews with UN staff and ECCC staff, personal communication, September 2014.
6.3 ECCC as Legacy Leaver
The work and impact of a court starts before the first day of trial; similarly, lega-
cies do not simply emerge after closure. The international tribunals have each
developed a self-understanding as legacy leavers, albeit differently and to varying
degrees. In light of the development of legacy strategies it has been argued that a
trend towards the institutionalization of legacy across the ad hoc tribunals can be
observed.24 From a comparative perspective, three main steps towards institution-
alization are distinguished. First, rhetorically, legacy is recognized as an issue on
the agenda and a formal legacy vision and strategy is developed. Second, structur-
ally, institutional bodies or working groups and professional positions devoted to
legacy are created within the organisations. Third, practically, efforts of designing
and implementing concrete legacy projects and activities are intensified. These
three steps did not necessarily occur consecutively in this order; however, for ana-
lytical purposes, they will here be considered in turn for the ECCC.
6.3.1 Developing a Legacy Vision
Leaving an indelible legacy has become an institutional concern across the inter-
national criminal tribunals. The ECCC has not fully developed a heightened sense
of urgency as legacy leaver based on the experience of other tribunals. The impor-
tance of striving for a positive legacy based on the needs of the Cambodian people
and of developing criteria for evaluation was emphasized early on by Robin
Vincent, then SCSL Registrar, during a visit in Phnom Penh in 2006: ‘the ECCC
should belong to the people of Cambodia—and that thus the ECCC should leave
something behind for the children of Cambodia—a footprint in the sand.’25 The
SCSL appears to be a precursor pioneering many developments and efforts to
institutionalize a legacy focus.26 The SCSL portrayed itself early on as a proactive
legacy leaver engaged in ‘deliberate legacy planning’.27 It seems there was an
early impetus to pursue legacy at the ECCC, which however got caught up in a
political tussle about ownership of the narrative on legacy and eventually was
largely abandoned as a result. Reasons include the politicization of legacy, but also
a certain disinterest or limited understanding, capacity and funding to engage in
comprehensive legacy building, as elaborated below. Two related factors are note-
worthy in this regard, namely the novelty of terminology for the Cambodian
24For the SCSL see Dittrich 2014. For comparative analysis see Dittrich 2016.
25R. Vincent cit. in Unknown, ‘The Legacy of the Khmer Rouge Trials Needs to be Planned’, The
Phnom Penh Post, 25 August 2006, available at http://www.phnompenhpost.com/national/legacy-
khmer-rouge-trials-needs-be-planned (visited 15 June 2015).
26See Dittrich 2014.
27Nmehielle and Jalloh 2006, at 107–124.
130 V.E. Dittrich
language as there is no direct translation for the term legacy and the already ongo-
ing efforts and discourse around victims participation and reparations which is dif-
ferent to the context of other international tribunals. While the ECCC had the
advantage of not being the first tribunal facing completion and closure, collabora-
tion or consultations on legacy with the international tribunals seemingly did not
occur at a systematic institutional level. Similar to the other tribunals, there is no
explicit mention of the term legacy in the ECCC foundational documents. But,
unlike the other tribunals, it is noteworthy that there are no webpages or dedicated
sections on legacy on the general ECCC website, nor on the UNAKRT website.
This lack of visibility of open engagement with legacy seems to indicate the nov-
elty and ambiguity of the concept, but also the sensitive nature of the topic and
sensitivity on the Cambodian side with regard to control of the law and justice sys-
tem. The issue of engagement or non-engagement of the Cambodian government
with the ECCC’s legacy is broached further below.
The ECCC has not openly developed a clear legacy vision or strategy. Over the
years legacy has been intermittently publicized or discussed within the Tribunal.
There are no publically available documents on legacy. Only the Defence Support
Section (DSS) officially presents a legacy program, including a section entitled
‘Legacy’ on the ECCC website noting: ‘The ECCC presents an excellent opportu-
nity to bolster the understanding of the criminal trial process within Cambodia
and, in particular, the right to a fair trial and an effective defence. The DSS takes
this responsibility seriously and has established a vigorous outreach and capacity-
building programme.’28 However, tribunal officials have publicly addressed the
topic of legacy at various occasions, notably at the ‘Hybrid Legacies of the
Extraordinary Chambers in the Courts of Cambodia’ Conference in September
2012 (hereafter ‘ECCC Legacies Conference’). It has been highlighted by Tony
Kranh, National Head of Administration at the ECCC, that legacy is viewed as an
essential part of the mandate, including its focus on providing justice for victims,
maintaining peace and reconciliation and enhancing judicial reform and Rule of
Law capacity building.29 In 2010 it was suggested that the common goal would be
on ‘developing, keeping, and properly disseminating the legacy framework of the
Court’.30 Seven areas of activity were identified: (1) records, archives and library,
(2) development of court practices and capacity building, (3) physical infrastruc-
ture (courtroom and legal documentation center), (4) outreach and dissemination,
(5) victims participation, (6) Virtual Tribunal and ICT support and (7) residual
28See ECCC, ‘Legacy’, ECCC DSS Website, available at http://www.eccc.gov.kh/en/dss/legacy
(visited 15 June 2015). .

29T. Kranh, Opening Remarks, The Hybrid Legacies of the Extraordinary Chambers in the
Courts of Cambodia Conference, Phnom Penh, 13 September 2012 (hereafter ECCC Legacies
Conference).
30ECCC, Administrative Circular on Establishment of ECCC’s Legacy Advisory Group and
Legacy Secretariat, 26 March 2010 (copy on file with the author) (hereafter Administrative
Circular March 2010).
issues beyond the court.31 It is widely reported that until 2012 the ECCC as an
institution appeared reluctant to get involved officially in discussions and initia-
tives led by non-governmental organizations (NGOs) in Cambodia. The view that
it was too early to discuss legacy was prevalent among tribunal officials, not least
because the first Supreme Court judgment in Case 001 was yet to be rendered. In
summer 2012 the ECCC then decided to become involved as external partner with
the ECCC Legacies Conference, spearheaded by the Cambodian Human Rights
Action Committee (CHRAC), just a few months before it was scheduled to take
place in Phnom Penh on 13–14 September 2012. According to tribunal observers
this joint venture between the ECCC and civil society was a remarkable, dramatic
shift in approach.32 However, while the conference deliberately had a focus on
practical recommendations, it is not obvious if and how this shaped the ECCC’s
legacy vision. In the ECCC Completion Plan considerations on legacy are not
included, yet it seems that the topic has been considered important at the tribunal,
at least on a surface level, as evidenced by the creation of dedicated institutional
bodies.
6.3.2 Professionalizing Legacy
Through creating specific bodies dedicated to legacy, the tribunals skilfully

enhanced the visibility of their own institutional endeavours. Three tasks of these
new institutional structures can be identified: affirmation of the importance of leg-
acy, internal coordination across organs, and identification and implementation of
potential projects. The first of its kind was the Legacy Working Group established
by then-Registrar Robin Vincent at the SCSL in 2005.33 The ECCC took up the
idea of professionalizing legacy and created its own institutional architecture.
Robert Petit, then International Co-Prosecutor with vast experience at different tri-
bunals, played the leading role in taking the initiative on legacy and archive man-
agement. In July 2008 a Legacy Working Group was established. By December
2008 it had produced a report identifying seven issues of interest already outlined
above. The group did not meet very frequently as all staff had pressing tasks. As
announced per ECCC Administrative Circular of 26 March 2010, i.e. a few
months even before the first trial judgment was rendered, the Office of
Administration established a Legacy Advisory Group (LAG) and Legacy
Secretariat (LS).34 The two bodies were formed at the same time, thus a double
31H. Jarvis, Conference presentation, ECCC Legacies Conference, Phnom Penh, 13 September
2012.
32Author interviews with ECCC staff and civil society staff, Phnom Penh, September 2012.
33SCSL, ‘Third Annual Report of the President of the Special Court for Sierra Leone (2005–
2006)’, available at http://www.rscsl.org/Documents/AnRpt3.pdf (visited 15 June 2015), at 11.

34Administrative Circular March 2010, supra note 30.
132 V.E. Dittrich
structure was created. A division of labor and responsibilities was apparent. While
the LAG was tasked with advising, planning and authorizing contents with regard
to legacy frameworks and was a tribunal-wide senior staff committee, the LS was
in charge of practically implementing the relevant legacy projects once approved
by the LAG. The composition included key members drawn from substantive
offices and sections who represent various aspects of legacy with both national and
international representation, although the LAG included predominantly if not
solely Cambodians. In addition, two judges have acted as the judicial focal point
for legacy. Overall, the legacy work undertaken by the internal institutional bodies
has not been advertised, inside or outside the institution. According to some ECCC
staff members, even high-level officials are not involved in this legacy work. The
capacity of the LAG to function well has been questioned given its large size. To
many it remains a mystery who is or was a member of the LAG or LS, what their
role and work has been over the past five years and whether either body still is in
operation.35 The ad hoc nature, opacity of these bodies and seemingly minimal
activity on legacy has been a widely shared concern by tribunal observers.36 Other
obstacles are seen in what has been lamented as lack of coordination between the
international and national side and lack of support for legacy work at the ECCC by
top officials in the Office of Administration.37
The ECCC has not advertised a professional position with a dedicated focus on
legacy, unlike the specific Legacy Officer positions that have existed at the ICTY,
ICTR and SCSL at different times. In 2007 the idea of a legacy officer was floated
after Robert Petit joined the Tribunal; however, the idea was not viable for budget-
ary reasons. A long-time tribunal official has noted ‘we still don’t have a legacy
officer and that is a bit of a shock really when you think about it, after all this time.
But at this moment adding a new position when the financial situation is so des-
perate, it’s not going to happen’.38 However, interestingly, a so-called Legacy
Advisor was hired by the Victim Support Section in 2012 to work on maximising
of the ECCC’s legacy. In the resultant briefing paper presented to ECCC officials
in February 2013 the need for a strategic legacy framework was emphasized, how-
ever the report has not been published and there has been no formal follow-up. It
is not clear if and how the ECCC’s vision and strategy has changed internally in
light of such expert input given that discussion takes place behind closed doors
among select staff members. However, this lack of transparency sheds light on the
politics of legacy in light of the delays and ambivalence from the national side vis-
à-vis the Tribunal and its legacies.
35Author interviews with ECCC staff, UN staff and civil society staff, Phnom Penh, 4–15
September 2012.
36See also Bates 2010.
37Author interviews with civil society staff and UN staff, phone communications, September
2014.
38Author interview with ECCC official, Phnom Penh, 14 September 2012.
6.3.3 Implementing Legacy Projects
The conceptualization and implementation of specific so-called ‘legacy projects’

has further institutionalized legacy across the tribunals. Details of the overall
ECCC legacy framework or programme, if substantially existent, have not been
made publicly available. A few projects have been mentioned as flagship legacy
projects, designed and conceptualized with project partners, namely the so-called
Virtual Tribunal and the Legal Documentation Center. Moreover, the ECCC’s
Defence Support Section has a separate legacy program with seven main compo-
nents as detailed online: training and capacity building, courses on international
criminal law, defending complex cases, case management, mentoring, outreach
and regular contact with media, NGO, legal and academic communities.39
Initiatives which deliberately take a bottom-up approach include the Fair Trial
Clubs and national internship program for Cambodians. However, it seems that
overall only marginal attention has been paid to the human legacy dimension in
light of living memory.
The most prominent and widely hailed ECCC legacy project is the so-called
Virtual Tribunal. On 17 February 2010 the Tribunal signed an agreement with the
Hoover Institution at Stanford University and the War Crimes Studies Center at
University of California, Berkeley, to establish a so-called Virtual Tribunal. This
was heralded as innovative effort to ‘link together all these resources and combine
them with expert commentary, educational introductions and explanations, inter-
views and other multimedia resources’ and then ‘[t]o make it easily accessible for
people in Cambodia, information centers where the ECCC Virtual Tribunal can be
accessed will be created at schools, universities, law faculties and other sites.’40
The ECCC Virtual Tribunal was conceived as a not-for-profit digital multimedia
library. These announcements noted that the Virtual Tribunal was being designed as
a tool to enhance the archival legacy of the ECCC with project partner East-West-
Center in Honolulu. The ECCC launched the Beta version for testing and comment
in September 2012 utilizing Case 001 data and multimedia applications. Two IT
consultants were hired to work on search functions of the database. Currently the
Virtual Tribunal website is not accessible online. In light of debates over funding,
commitment and ownership on the Cambodian side, the project appears to have
been deserted, or at least to have stalled, since no update has been published.
The second widely advertised legacy project is the construction of a new Legal
Information Center, a permanent center for archival preservation and education. It
is, however, also emblematic of the challenges the Tribunal faces pertaining to
funding, sustainability and the long term political commitment to the transforma-
tive potential of its operations. The Japanese government provided $2 million for
39See ECCC, ‘Legacy’, ECCC DSS Website, available at http://www.eccc.gov.kh/en/dss/legacy

40See ECCC, ‘Virtual Tribunal’, ECCC Website, available at http://www.eccc.gov.kh/en/virtual-
tribunal (visited 15 June 2015).

134 V.E. Dittrich
this ECCC legacy project in 2009 to build a permanent center for the archives and
as an educational platform which would ‘keep the outcome of the Tribunal for the
Cambodian society as a legacy of the ECCC and will serve as a token of remem-
brance and non-recurrence of the Khmer Rouge regime.’41 After provision of the
funds to build the facility the Cambodian government is technically responsible
for funding its daily operations and maintenance. While the building has been built
in Sen Sok district in Phnom Penh, the facility has remained half unoccupied as
funding is still awaited from the Cambodian side. The headquarters of the Bar
Association of Cambodia have moved into half of the four-storey building. It
remains to be seen when or whether the legacy project which was announced with
fanfare will be fully implemented and the archival center eventually become
functional.
Several other initiatives have a legacy dimension while not explicitly labelled as
legacy projects by the Tribunal. The extensive ECCC outreach program deserves
specific mention. Through the program, which facilitates transportation from
across the country, over 160,000 Cambodians have visited the Tribunal and
attended hearings. The ECCC’s public gallery which can seat up to 500 visitors is
the largest gallery compared to other international tribunals. Thousands have fol-
lowed the ongoing proceedings via a national television programme and weekly
radio show ‘Khmer Rouge Leaders on Trial’ on Bayon Radio and Radio National
Kampuchea.42 The ECCC Public Affairs section started a blog in 2013 to fill an
information gap and complement its social media strategy.43 Some examples con-
cerning the human legacy dimension in terms of skills and cross-pollination in the
judicial arena deserve brief mention. For instance, the National Internship Program
has been targeting Cambodian students and young professionals. Individual tribu-
nal officials and staff members have coordinated smaller legacy projects in various
shapes and sizes, for instance training sessions with practitioners and lawyers from
the domestic justice institutions and legal education programs.44 Since summer
2014 the ECCC, in cooperation with the Raoul Wallenberg Institute of Human
Rights and Humanitarian Law, hosted a new seminar series on international crimi-
nal law and human rights for law students.45 In early 2014 a new project was
announced: a memorial in the Tuol Sleng Museum, in commemoration of the
41J. Wallace, ‘Empty Building Represents KRT’s Uncertain Legacy’, The Cambodia Daily, 28
April 2014, available at https://www.cambodiadaily.com/archives/empty-building-represents-

krts-uncertain-legacy-57462/ (visited 15 June 2015).
42ECCC, ‘The Court Report’, Issue 71, April 2014, available at http://www.cambodiatribunal.org
/wp-content/uploads/2014/04/Court_Report_1404.pdf (visited 15 June 2015), at 10.

43L. Olsen, ‘Why Start a Blog?’, ECCC Blog, 4 April 2013, available at http://www.eccc.gov.kh/
en/blog/2013/04/04/why-start-blog (visited 15 June 2015).

44For example, in 2014 officials from the ECCC Office of the Co-Prosecutors coordinated a two-
day practical advocacy training exercise on sexual offences for Cambodian defense lawyers,
sponsored by International Bridges to Justice.
45ECCC, ‘Seminar series in international criminal law and Human Rights for Law students’,
ECCC Website, available at http://www.eccc.gov.kh/en/articles/seminar-series-international-crim-

inal-law-and-human-rights-law-students (visited 15 June 2015).
victims who died there during the Khmer Rouge regime. On 10 July 2014 the
ECCC and the Ministry of Culture and Fine Arts signed a Memorandum of
Understanding to this effect.46 The SCSL, for instance, also established a memo-
rial in commemoration of the victims as part of a new Peace Museum on the for-
mer court site in Freetown.
It seems that some projects have been implemented given the commitment and
leadership of individual tribunal officials. When assessing legacy efforts and pro-
jects, an amalgam of factors needs to be considered, including funding, capacity
and long term commitment, i.e. sustainability of projects. It does not appear that
a continuous consultative dialogue has taken place with the government and civil
society with regard to priorities, needs and expectations vis-à-vis legacy deliver-
ables. The ECCC as legacy leaver is a central actor, albeit only one of panoply
of actors involved in legacy building. In the following section the role of select
legacy actors and key dynamics of the politics surrounding institutionalizing the
ECCC’s legacy are explored.
6.4 Concept of Legacy
The topic of legacy construction seems of great significance today as it resonates

with the politics of meaning and memory. Legacies are a political construct and
contest for influence over remembrance, a deliberate selective use of the past
according to the demands of the present. It is indeed important to appreciate the
politics, power, and pathologies behind and beyond such construction.47
International legal scholarship has produced invaluable insights into the legal lives
of the tribunals but has sidelined their social lives.48 The multifaceted social pro-
cess underpinning the development of the international tribunal as legacy leaver
and the possibility of its multiple legacies has to date been given scant attention.
Countering the dearth of attention given to the actual process of constructing lega-
cies, this chapter sketches the contours of a framework outlining a notional legacy
process with the social construction of legacies at the center of its analysis.49
46According to the ECCC website, the memorial project is to be implemented under the frame-
work of Non-Judicial Measures of the ECCC Reparation Programme which is made possible
with funding from the German Ministry of Economic Cooperation and Development through
the Victim Support Section. See ECCC, ‘ECCC and Ministry of Culture and Fine Arts to sign a
Memorandum of Understanding (MoU) to establish a Memorial in Tuol Sleng Museum’, ECCC
Website, available at http://www.eccc.gov.kh/en/articles/eccc-and-ministry-culture-and-fine-arts-
sign-memorandum-understanding-mou-establish-memoria (visited 15 June 2015).
47See Barnett and Finnemore 1999, at 699–732.
48Meierhenrich 2006, at 696–703. .
49For the following sections see Dittrich 2014, at 664–671; Dittrich 2016.
136 V.E. Dittrich
6.4.1 Language of Legacy
Talk about legacy often arises in a valedictory or commemorative setting when

reflecting upon accomplishments and the meaning of being. Leaving a legacy is
not a novel idea or practice. Legacy building has ostensibly become a social and
political expectation and responsibility mirrored in the ubiquitous question ‘What
will be your legacy?’ This expectation has also increasingly become prominent for
the tribunals both in terms of costs and expected deliverables. In anticipation of
closure, we have witnessed a ‘legacy turn’ in the realm of the temporary interna-
tional criminal tribunals. This is in part because of the sheer expense of the tribu-
nals and a fundamental realization in recent years by the international community
that simply convicting a number of alleged perpetrators may not be sufficient to
impact more broadly on post-conflict countries transitioning to societal stability,
peace, and reconciliation.50 Hence, pressure on the tribunals grew to demonstrate
successes and lasting contributions ‘outside the narrow confines of the court-
room.’51 Indeed, legacy building has become an institutionalized endeavour at the
tribunals and legacy assessments abound. It could be argued that the consequences
and impact of international criminal trials are increasingly questioned. The
Independent Expert Report on the Special Court for Sierra Leone by Antonio
Cassese (2006) noted: ‘This is the question of a tribunal’s legacy: tribunals must
leave something useful behind.’52 But what ‘something useful’ means remains dis-
puted given different expectations and definitions of legacy. A shared sense among
tribunals as legacy leavers, becoming cognizant of wanting to leave a legacy, has
emerged. This is reflected in the gradual institutionalization of legacy exemplified
above for the ECCC.
No uniform or single definition seems to exist across all tribunals. Questions of
purpose and interpretation of the legal, political, social, economic or cultural com-
ponents of international tribunals hereby take centre stage. A broad concept, which
may include contributions to law, justice, peace, reconciliation and beyond, stands
in contrast to a narrow notion solely covering the legal and judicial arena. An
often-cited definition, introduced by the UN High Commissioner for Human
Rights (OHCHR) policy tool Maximizing the Legacy of Hybrid Courts, defines
legacy as a ‘lasting impact on bolstering the rule of law … by conducting effective
trials to contribute to ending impunity, while also strengthening domestic judicial
capacity’.53 A number of publications have taken up this definition making it the
most common definition for hybrid courts. For instance, the SCSL explicitly
50See Nmehielle and Jalloh 2006.

51Ibid.,at 110–11.
52A. Cassese, Report on the Special Court for Sierra Leone submitted by the Independent Expert
Antonio Cassese, 12 December 2006, § 76, at 61.

53OHCHR, ‘Rule-of-Law Tools for Post-conflict States: Maximizing the Legacy of Hybrid
Courts’, 2008, available at http://www.ohchr.org/Documents/Publications/HybridCourts.pdf (vis-

ited 15 June 2015), at 4–5.
adopted this definition in its 8th Annual Report in 2011.54 It is also the most used
definition in the Cambodian context given the involvement and activities of the
OHCHR country office in Phnom Penh, yet the ECCC as an institution has not
officially provided a working definition. However, the OHCHR definition is
unnecessarily limited to a very narrow, albeit perhaps practical, conceptualization.
It ultimately neglects to encapsulate the spectrum of possible legacies of a hybrid
court. It contrasts with a broader conceptualization of legacy, for instance ‘that
which the Tribunal will hand down to successors and others’ noted by the ICTY.55
Identifying what notion of legacy is used is crucial for effective communication
and understanding. This becomes more complicated in a multi-lingual setting.
Khmer is the official language at the ECCC and Khmer, English and French are
official working languages at the ECCC.56 The Khmer expression often used is
‘morodok’ which can be translated as ‘what is left behind’, however it was a new
concept for many Cambodians to grapple with used in connection with a court.57
Interestingly, the Khmer version of the OHCHR policy tool Maximizing the
Legacy of Hybrid Courts was first distributed and launched by James Heenan,
Head of the OHCHR Cambodia office, during the ECCC Hybrid Legacies
Conference on 13 September 2012, i.e. four years after the English version was
published.
The general appeal as well as casual usage of the term legacy warrants further
examination. Three brief limitations of the current discourse will be noted. First,
the term is often used in the singular, which seems problematic and misleading. It
is argued that the common concept of legacy is too simplistic and one-dimensional
which may bear a risk of distorting the overall ECCC legacy picture. A plural con-
ceptualization of legacy is advocated in order to pinpoint to the construction of
multiple legacies instead of a single objective legacy. The notion of multiple lega-
cies58 in turn raises the question of how these may be logically connected, com-
plementary, competing, or even conflicting. Second, most often only marginal
attention is paid to legacy leaving as a social constructive process. In the tribunal
context a legacy is generally presented as a positive product of intent, deliberation
and planning. The underlying assumption is that any legacy is highly malleable by
54SCSL, ‘Eighth Annual Report of the President of the Special Court for Sierra Leone’, 2010–
2011, available at www.rscsl.org/Documents/AnRpt8.pdf (visited 15 June 2015).
55ICTY, ‘Assessing the Legacy of the ICTY’, ICTY Website, available at http://www.icty.org/
sid/10293
56ECCC Agreement, supra note 9, Article 26.
57Author interviews with civil society staff and ECCC staff, Phnom Penh, 11 September 2012.
58The conference in September 2012 was entitled ‘Hybrid Perspectives on the Legacies of the
Extraordinary Chambers in the Courts of Cambodia’ after conversations between conference

organizer and the author. The author presented the proposed framework and plural notion of
legacies at the conference. It has been reported that the pluralistic approach advocated has been
picked up by civil society actors in Cambodia and the notion of legacies in plural has shaped
discussions and is used in legacy update meetings (see author interviews with UN staff and civil
society staff, phone communication, September 2014).
138 V.E. Dittrich
the legacy leaver, i.e. the Tribunal itself. Such an approach to legacy not only
neglects the social dynamics of leaving a legacy, it also underestimates the crucial
role of various stakeholders, including legacy recipients, while overestimating the
legacy leaver’s own influence. Third, especially at the outset of the emerging dis-
course, ‘legacy’ has been used as an imprecise umbrella term. There still seems to
be some confusion between residual functions and legacy, including at the ECCC.
One tribunal official pointedly observed, ‘The discourse has improved. At the
beginning everything was legacy, it was confusing and inaccurate.’59 Although leg-
acy may temporally overlap both with completion and post-completion or residual
issues, it is important to clearly distinguish between these interrelated but separate
matters. The success of any buzzword, such as the term legacy, calls for vigilance,
especially where the focus is often exclusively on the positive aspects. In the fol-
lowing the construction process of legacies is elucidated.
6.4.2 Social Construction of Legacies
The construction of legacies is an inherently social process.60 Adopting a con-

structivist lens enables a ‘focus on the role of ideas, norms, knowledge, culture
and argument in politics, stressing in particular the role of collectively held ‘inter-
subjective’ ideas and understandings of social life.’61 Legacies as collective mental
representations are an interesting example of the prevalence of creating intersub-
jective rather than idiosyncratic constructs of meaning. Similarly, the focus is less
on their material reality and more on their value as ‘social facts.’62 In light of the
role and development of norms here a cyclical perspective is adopted to capture
the continuous (re)construction of legacies.63 The cycle of legacies has three
phases, i.e. creation, consolidation and contestation, as highlighted in Fig. 6.1.
The cycle of legacies is best considered a heuristic device for examining how
and why certain legacies or legacy constructions come to the fore. Such a perspec-
tive allows legacies to be examined at every stage in the cycle, thereby emphasiz-
ing a point often neglected: there is no definitive starting or end point of legacy
construction. A comprehensive analysis of the cycle, that is how legacies are being
created, consolidated and contested in the ECCC context would go beyond the
scope of this chapter.
The presence and role of different actors have to date been given inadequate
consideration. This oversight is problematic for two reasons. First, it turns a blind
eye to the construction process of legacies and the interplay of intentionality and
59Author interview with ICTY outreach staff, The Hague, 1 July 2011.
60The below framework and figures are based on Dittrich 2014, at 669–670 and Dittrich 2016.
61Finnemore and Sikkink 2001, at 392.
62Searle 1995.
63See norm circle in Park and Vetterlein 2010, at 20.
Fig. 6.1 Phases of the cycle of legacies
non-intentionality. A focus on the latter puts paid to the common assumption that
legacies somehow simply happen or emerge organically. Second, such oversight
ignores actor diversity. Not all actors are given equal weight, recognition, and
standing by those both inside and outside of the legacy process. Legacies therefore
may become sites of debate, contestation, and struggle. The developed framework
distinguishes five ideal types of actors, indicative and reflective of the actor diver-
sity: legacy leavers, producers, enforcers, recorders, and recipients (see Fig. 6.2).
Legacies are conventionally portrayed as transmitted, or often bestowed, from a
leaver to the recipient(s). This simplification overlooks that their interaction is not
solely unidirectional. Recipients can and do act upon legacies and are not solely pas-
sive recipients in the literal sense. The dyad between legator and legatee, i.e. leaver
and recipient, frames the legacy process. Many leavers actively attempt to shape
their legacies and how they want to be remembered. The institutionalization of leg-
acy at the tribunals, including the ECCC, can be read in this regard. Active recep-
tion and (re)interpretation though shape their meaning and value anew. A plethora
of stakeholders and consequently legacy recipients are to be recognized in the con-
text of tribunals: victims, witnesses, defendants, tribunal staff, various profession-
als, civil society, the domestic justice systems and governments, other tribunals, the
United Nations and international community. In the model presented here the legacy
process remains dynamic, multifaceted and ongoing given the actor interaction and
continuous construction. Legacies do not emerge in a singular fashion as the con-
struction of legacies is an inherently social process involving discussion, negotiation,
and contestation. The actor constellation may vary according to the respective stage
in the cycle of legacies, that is, creation, consolidation, or contestation (see Fig. 6.1).
140 V.E. Dittrich
Fig. 6.2 Ideal typical interaction between main legacy actors
With regard to agency the question of intentionality is an important issue. It

is crucial to appreciate the interplay between intended and unintended legacies,
but, equally, between realized and unrealized legacies. Hence, the politics of leg-
acy construction deserve more attention than generally accorded. All five types of
actors engage in forms of legacy building as argued here. The question arises as to
how much importance may be accorded to agency and deliberation in the process
over time. The above-sketched framework sets the scene for the remainder of this
chapter which enquires into several salient dynamics and key actors in legacy con-
struction, namely constructions of budget, ownership and meaning. For our pur-
poses here, given the scope of the chapter and volume overall, the ECCC as an
institution is considered as a single legacy leaver.
6.5 Constructions of Legacies
No tribunal can build its own authoritative legacies as collective interaction and
multiplicity of voices are part and parcel of the construction of legacies. Prior to
the closure of the tribunals their legacies already have become sites of discussions
and struggles over their definitive meaning.64 Ultimately, legacy is what a tribunal
makes of it; but also what all other actors make of it, too. In the context of a hybrid
court, the question of the addressee or recipient is particularly germane. Especially
in the case of the ECCC it appears that international and national dividing lines at
times have run deep. The political background of the conflict and considerations of
64For this section, see Dittrich 2014, 2016.

international relations feed into current debates on legacy. For example, it has been
stated that the interaction between the United Nations and the government of
Cambodia did not ‘result in an integrated institution but in a body comprised of
two distinct components, hardly coordinating between themselves, and operating
under different rules and lines of responsibility’.65 This brings the question of the
resonance of politics since the time of establishment to the forefront. It may
appear that a balance is being attempted or that competition is seemingly in-built
between leaving a legacy for the international community and international tribu-
nals and leaving a legacy for domestic constituents. In particular, ‘victims’ as
recipients have been the focus of some attention, also in light of the level of vic-
tims participation at the ECCC.66 According to one survey 93 % of those who
lived under the Khmer Rouge regime consider themselves a victim and 51 % of
those who did not experience the regime.67 The relationship between legacy and
victims participation, which is arguably a key aspect of legacy that the ECCC has
developed in parallel to its legacy program unlike any international tribunal,
deserves attention.68 For instance, a workshop entitled ‘Leaving a Lasting Legacy
for Victims,’ was co-organized by the Victims Support Section of the ECCC on 10
March 2009.69 However, it may be observed that in part victims were seen to be
served through the process of victims participation, and the focus on legacy thus
may have been seen as a confusing and redundant adjunct to these efforts.
Discussions about legacy that resemble a top-down monologue from a legacy
leaver to a recipient rather than a dialogue obfuscate an important dimension of
legacy leaving: the active reception and continuous construction of legacies. There
have been calls for viewing a hybrid court ‘not as a driver but as a catalyst for
motivating a broader set of actors or initiatives that may contribute to legacy’70
and feeling vested in the legacy process. It has been moreover suggested that
‘effective legacy must be a result not just of the policies and actions of the tribu-
nals themselves but of a multiplicity of actors that seek to ensure that the tribunals
have a lasting impact.’71 Although such perspectives recognize the multiplicity of
actors, the underlying assumption of the homogeneity and convergence of actor
interests and legacy visions remains problematic. The diversity of actors and social
dynamics involved in legacy construction has hitherto been largely overlooked.
This chapter now turns to the interaction of some actors, exemplified below in the
context of claims made over meaning, ownership and money.
65Tortora 2003, at 107.

66See Elander 2013, 95–115. For a critical perspective on the representation of ‘victims’, see
Kendall and Nouwen 2014, 235–264.
67See Pham et al. 2009.
68See e.g. discussion on new memorial, supra note 46.
69ICTJ, ‘“Leaving a Lasting legacy for Victims”: Practical Workshop for ECCC Victims’
Representatives’, Workshop Report, 10 March 2009.

70OHCHR, supra note 53, at 6; see also UN Doc. S/2004/616, 23 August 2004, § 17.
71Reiger 2009, at 4.
142 V.E. Dittrich
6.5.1 Meaning Making
International criminal tribunals do not operate in an apolitical vacuum. Debates

over the power of interpretation and control over their legacies are hence inevita-
ble. Legacy construction is an ongoing process and different narratives accompa-
nying different constructions deserve to be taken seriously. Given its creation in
situ, hybrid nature, limited number of cases and voluntary funding scheme, it
seems that the ECCC has arguably faced high expectations in terms of contribu-
tions and legacy. For critics, the ECCC has been politicized or politically compro-
mised since inception. Following Duncan McCargo, the ECCC ‘is not just a
hybridized institutional and legal framework but a hybridized political construc-
tion, in which international liberalism exists in an uneasy tension with local
authoritarianism’.72 Such tension necessarily impacts on legacy and legacy con-
structions. Drawing on Victor Peskin’s ‘virtual trials’ model, McCargo furthermore
highlights certain soft power contests and a ‘play-within-a-play’ enacted at the
ECCC. He concludes that ‘the messy hybrid tribunal design and the complex inter-
nal political dynamics surrounding it means the major winner in all possible sce-
narios is the Cambodian government’, while questioning who is ‘on trial’ in the
Cambodian context, not legally, but politically or symbolically speaking: ‘On one
level, this is a trial of former Khmer Rouge leaders; […] But on another level, the
ECCC is putting Hun Sen and his regime on trial. The virtual trial represents an
opportunity for elements of the international community to test the Cambodian
regime’s commitment to international norms of human rights, rule of law and
transparency. […] On yet another level the creation of the ECCC allows Hun Sen
to try to test the international community, especially the UN and major donors.’73
Struggles over the power of interpretation and contestation of meaning about leg-
acy illuminate the broader contestation of meaning and the significance and sensi-
tivity of meaning making in Cambodia. Unlike the international tribunals, a key
challenge the ECCC has faced is that it was established in situ, i.e. in the country
where the conflict and alleged crimes occurred several decades ago and with a
regime in power which is itself not completely dissociated from the conflict.
Ultimately, debates about the ECCC’s legacies are not solely about the
Tribunal’s effectiveness per se but are both a reflection on and a side show of
broader debates about the Tribunal’s raison d’être, the hybrid court model, the
international community’s involvement in post-conflict peacebuilding and mean-
ings of justice, locally, regionally and globally. As emphasized by the UN Office
of Legal Affairs in New York, ‘Many commentators consider this the most signifi-
cant international criminal trial in the world at the moment. The UN Delegation’s
conclusion, therefore, is that everything must be done to ensure that the ECCC
72McCargo 2011, at 621.

73Ibid., at 618.
will be allowed to complete its judicial mandate.’74 David Scheffer, the Secretary-
General’s Special Expert notes, ‘This is the court that seeks to render justice for a
greater number of people than any other court,’ and ‘This is the big one. Yes, it’s
taken a while to get there, but the Nuremberg trials of our time are taking place
right in Phnom Penh, and we have the opportunity to support them.’75 The ECCC
trials may be seen as an important jigsaw piece in the larger puzzle of the interna-
tional criminal justice endeavor of the international community and continue to
divide international justice observers and practitioners.
The ECCC’s significance depends as much on its successful performance as on
the perception and construction of its success. In other words, how the institution’s
impact and effect is framed. High and conflicting expectations exist regarding
what the legacies are and should be in the areas of law, justice, peace and reconcil-
iation given different legacy concepts. There are no universally agreed desired leg-
acies since the vantage point of legacy actors is paramount. Put simply, legacy
means different things to different actors at different times. From a normative
dimension, many actors imagine what the legacies ought to be. The ECCC faces
similar criticisms to other ad hoc tribunals: the length of time for judicial proceed-
ings, cost, limited value of select prosecutions. These critiques were heightened in
the wake of the issuance of the Trial judgment in Case 002/01. In addition, the
ECCC has faced continuous allegations of corruption and political interference.76
Moreover, multiple high-profile resignations in the Office of the Co-Investigating
Judges occurred. In 2008, words of caution that the tribunal is losing legitimacy
were expressed in media reports, for instance through observations such as ‘Yet
the court appears not to be different from the national Cambodian courts as it is
corrupt too.’77 Any such allegations weigh heavy, even if such claims have not
been unequivocally proven. With regard to politicization already in 2004 it was
astutely observed that ‘the allegations may be difficult to prove conclusively but
the ECCC and its stakeholders have failed to transparently investigate and dis-
prove the allegations. Independence is important, not least to ensure the legacy
left’.78 The dramatic effect is not to be overlooked. According to Cambodian-born
academic Sophal Ear, the ECCC resembles a ‘theatre of the absurd’, running the
risk of ‘descending into farce’.79
74UN Office of Legal Affairs, Summary of Visit by the Legal Counsel and the Controller to
Phnom Penh, Cambodia, 27–29 January 2014, available at http://legal.un.org/ola/lc-02-2014.aspx
75D. Scheffer cit. in Sieff 2013.
76For a more detailed discussion, see e.g. Hall 2009, 172–253.
77See P. Long, ‘End corruption or the KRT will lose credibility’, The Phnom Penh Post, 8 September
2008, available at http://www.phnompenhpost.com/national/end-corruption-or-krt-will-lose-credibility

78Hamilton and Ramsden 2004, 115–147.
79S. Ear, ‘Cambodian “Justice”’, Wall Street Journal, 1 September 2009, available at http://www.
wsj.com/articles/SB10001424052970203946904574301583107436174 (visited 15 June 2015).

144 V.E. Dittrich
For critics, the ECCC represents failure or at least exposes varying degrees of
failure on various fronts, in theory and in practice. The constant refrain among the
critics points to, inter alia, lack of efficiency, allegations of corruption and political
interference. In this sense, the ECCC is described ‘in many ways a charade of jus-
tice’, ‘achieving an impoverished form of justice, which is better than nothing, but
not by much’. Ultimately, it is argued, ‘… what we are seeing in Cambodia is not
bureaucratic incompetence, or the best available option …, but complicity in
impunity’.80 The failure is seen as ongoing and potentially image-damaging for
the UN: ‘The ECCC is currently failing, and it is time the UN seriously considered
withdrawing its support for this deeply flawed tribunal.’81 According to Michael
Karnavas, international co-lawyer for Ieng Sary, the failure is not irreversible:
The sad legacy of the ECCC is that all of the positive things coming out of it — some of
the decisions and procedures have been very good from a legal standpoint — almost get
lost in this cloud of controversy surrounding it, whether it’s corruption, incompetence or
treating the national staff like indentured servants …. I think the ECCC is primarily a fail-
ure, but there still is time, maybe not to pull the rabbit out of the hat, but perhaps to sort of
shift course and make this a better success.82
For supporters, the significance of the ECCC as beacon of hope, collective

endeavour of mankind is seminal. The ECCC has been periodically hailed by UN
and Cambodian government officials. On a positive note, a decade ago the
Secretary-General suggested the ECCC ‘is also expected to have considerable leg-
acy value, inasmuch as it will result in the transfer of skills and know-how to
Cambodian court personnel’.83 Upon entry into force of the 2004 Agreement,
Deputy Prime Minister Sok An stated ‘that the formula we have agreed to estab-
lish will not only meet our country’s needs for justice …, but will also assist the
wider process of legal and judicial reform by providing a model court meeting
international standards.’84 Six years later, in 2010 he concluded that ‘[t]he ECCC
has confirmed its ability to conduct complex international criminal trials to inter-
national standards, and is living up to the hope for it to be a model court. …
together in a spirit of mutual cooperation and understanding to ensure that the leg-
acy of the court is preserved.’85 The so-called ‘demonstration effect’ of hybrid
80Ainley 2003, at 25–26.

81McCargo 2011, at 627.
82See M. Karnavas cit. in D. Otis, ‘Why Cambodia’s Khmer Rouge War Crimes Trial is Endless –
and Useless’, The Star, 31 March 2013, available at http://www.thestar.com/news/world/2013/03/31/

why_cambodias_khmer_rouge_war_crimes_trial_is_ endless_and_useless.html (visited 15 June 2015).
83UN Doc. A759/432, Report of the Secretary-General on Khmer Rouge Trials, 12 October 2004, § 27.
84Sok An, ‘Statement on the Entry into Force of the Agreement between Cambodia and
the United Nations on the Khmer Rouge Trials‘, Phnom Penh, 29 April 2005, available at
http://www.eccc.gov.kh/en/documents/legal/statement-entry-force-agreement-between-cambodia-
and-united-nations-khmer-rouge-tria (visited 15 June 2015).
85Joint Statement by H.E. Deputy Prime Minister Sok An and Patricia O’Brien, Under-Secretary-
General for Legal Affairs, The Legal Counsel, 19 April 2010, available at http://www.unakrt-
online.org/articles/joint-statement-he-deputy-prime-minister-sok-and-ms-patricia-o%E2%80%
99brien-under-secretary-general (visited 15 June 2015).
tribunals was identified by the OHCHR in its legacy tool. The UN Special
Rapporteur on Human Rights in Cambodia alluded to this theme back in 2003:
[T]here must be a concerted effort to ensure maximum opportunities for a “ripple” effect
on the administration of criminal justice in Cambodia. It is hoped that the establishment of
a transparent process that complies with international standards will have an educational
effect on existing formal institutions and create … further demand for a well-functioning
judicial system.86
In October 2010, during a town hall meeting with ECCC tribunal staff, Ban Ki
Moon placed the ECCC’s judicial proceedings in the context of the global fight
against impunity and emphasized the collective and individual contributions of all
staff members:
You have come far. This Court’s success is a tribute to all of you working here. Each of
you plays his or her part: drivers, translators, administrators, prosecutors, judges …
national and international staff alike. You are building an invaluable historical legacy. You
are helping the people of Cambodia continue the process of reconciliation and build a
peaceful and prosperous future. Your work is vital in the world’s fight against impunity.87
Some observers have taken a more neutral position, suggesting a more patient
and deliberate evaluation over time. It has been cautioned that ‘We cannot count
our chickens before they are hatched’ and ‘We still have to see for legacy.’88 Also,
the question concerning the legacy of a given legacy project demands greater
reflexivity and implies larger questions about meaning, purpose and sustainability
of a tribunal’s legacy.
The relationship between the mandate and core judicial work and the legacy of
a tribunal remains debated. The ECCC will be judged for the quality of its judicial
work, its decisions and judgments. Given the allegations of corruption and politi-
cal interference, this question is particularly sensitive in the Cambodian context.
The ECCC’s legacy will not solely be shaped by its judicial performance in terms
of procedural and substantive justice and outcomes in two, or possibly three or
four cases. Even before the ECCC itself started its work, other actors already influ-
enced constructions of legacy with regard to timing, institutional design, funding
modalities or political pressure. The ECCC will have cost around $250 million by
2015, hence scrutiny of value for international monies is growing. Vis-à-vis their
pending closure, the temporary courts as legacy leavers seem to be moving toward
legacy consolidation. However, legacies aren’t solely created by a few projects
before closure but are shaped and constructed every day from the court’s creation.
For instance a tribunal official underlined, ‘our judicial work is the basis of our
legacy, it is our everyday work not a special project’.89
86UN Doc. E/CN4/2004/105, Report of the Special Representative of the Secretary-General for
Human Rights in Cambodia, Peter Leuprecht, 19 December 2003, § 19.

87The UN Secretary-General's Remarks at the Extraordinary Chambers in the Courts of
Cambodia, 27 October 2010, available at http://www.unakrt-online.org/articles/un-secretary-gen-

erals-remarks-extraordinary-chambers-courts-cambodia (visited 15 June 2015).
88J. Oeung, Panel, ECCC Legacies Conference, Phnom Penh, 13 September 2014.
89Author interview with ICTY outreach staff, The Hague, 1 July 2011.
146 V.E. Dittrich
Judicial proceedings are still ongoing at the ECCC. Cases 003 and 004 have
been a bone of contention since many years. The Cambodian government has
repeatedly said it is opposed to the cases going forward. The resulting contro-
versy has contributed to speculation and allegations of political interference.
Expressing opposition to Cases 003 and 004 just days before Meas Muth and Im
Chaem were charged on 3 March 2015 Prime Minister Hun Sen, himself a former
Khmer Rouge cadre who marked three decades in power in January 2015, said
‘The trial wants to go [for] too much… [and] expand the scope, causing some peo-
ple to go back to the jungles’, adding ‘We have to think about the importance of
peace, the importance of life. How many people will die if war comes again?’90 In
April 2009 he forcefully said, ‘I would prefer to see this court fail than for war to
come back to Cambodia… [t]hat is my absolute position … just focus on these
few people … I would pray for this court to run out of money and for the foreign
judges to walk out. That would allow for Cambodia to finish the trial by itself.’91
However, allegations of political interference are seen as a threat to the ECCC’s
legacy: ‘If any of these cases are dismissed, transferred, or otherwise handled in a
manner that does not evince independent decision making consistent with interna-
tional standards, the court will be left with a legacy of impunity rather than justice
in spite of its accomplishments in other cases.’92 Indeed, going forward the
unfolding of Cases 003 and 004 and perceptions of independence of the ECCC
will decisively shape legacy constructions.
6.5.2 Ownership Claims
High and conflicting expectations exist regarding what the legacies of an inter-
national criminal tribunal or hybrid court are and should be. Claims concern
the content and expectation for a particular legacy. It would seem erroneous to
assume a monolithic Cambodian or international perspective on legacy. On the
one hand, there are modest and practical claims for legacy. On the other hand,
there are strong demands and sweeping claims for legacy in light of the portrayal
of the ECCC as a panacea for various legal, socio-political or economic ills in
Cambodia. Importantly, there seems an obvious gap between the ambitious expec-
tations and objectives created for the Tribunal and the ultimate resources or tools
invested to contribute to the wider goals of justice, peace, and reconciliation in
Cambodia as advertised. Against this backdrop of tensions at play, claims about
90Hun Sen cit. in S. White and M. Titthara, ‘Khmer Rouge duo charged’, The Phnom Penh Post,
3 March 2015, available at http://www.phnompenhpost.com/khmer-rouge-duo-charged (visited
15 June 2015).
91Hun Sen cit. in G. Wilkins, ‘Government rejects charges of political manipulation at ECCC’,
The Phnom Penh Post, 29 May 2009, available at http://www.phnompenhpost.com/national/gov-

ernment-rejects-charges-political-manipulation-eccc (visited 15 June 2015).
92See Sok An, supra note 84.
ownership are made. Such claims may concern the procedure and performance of
the tribunal or the authority and legitimacy of actors. What is more, claims are
also made for example with regard to who is authorized to speak about or work on
legacy.
The first actor claiming ownership is the ECCC itself as legacy leaver. Despite
the focus on legacy already established at other tribunals, the ECCC appeared hes-
itant to accelerate initially on the surface, at the time claiming to want to concen-
trate on the judicial work and postpone legacy discussions until at least after
conclusion of the first case. The ECCC’s approach to legacy and ownership though
has seen limited guidance, vision and accountability. Tribunal officials have
expressed discontent with legacy projects and meetings conducted and directed by
civil society organizations and NGOs and have become increasingly involved
since 2012 to reclaim ownership over the topic. The ECCC has repeatedly sug-
gested that it is in the best position to know and discuss what its own legacy is.93
Importantly, the Tribunal became co-organizer of several high-profile meetings,
including the ECCC Hybrid Legacies conference in September 2012 during which
Tony Kranh, National Head of Administration, announced: ‘Now that Case 001 is
successfully completed, the ECCC is required to deal with legacy and residual
issues.’94 Commentators have periodically emphasized ‘an urgent need for the
Court to come up with a strategic vision for legacy in collaboration with interested
stakeholders and for the Cambodian government to publicly display the necessary
political will and take responsibility for legacy initiatives,’95 which does not mean
‘that legacy is the sole responsibility of the Court, but it should rather be viewed as
a concerted effort of multiple interested stakeholders’.96 Long Panhavuth, program
officer of the Cambodian Justice Initiative noted with concern: ‘But the gap is
leadership, and where it comes from. The concern here is the lack of interest of the
ECCC as an institution in legacy.’97 Yet it appears to be a move more aimed at
demonstrating ownership or control of the topic of legacy rather than developing a
content-driven substantive vision, genuine ownership and leadership.
Legacies can acquire significance and meaning beyond the original intent and
emphasis of a legator (‘emergent’ legacies).98 It is all action inside and outside of
the courtroom in its wider context that shapes legacies. Early calls for legacy plan-
ning date back nearly ten years. For example, Laura McGrew emphasized back in
2006 that ‘The legacy of the ECCC needs to be planned now, and must be centered
on making the ECCC accessible to and meaningful for Cambodians. … In order to
93Author interviews with ECCC staff and civil society staff, Phnom Penh, 11 and 12 September
2012.
94Kranh, supra note 29.
95Sperfeldt 2013, at 1126.
96Ibid., at 1124.
97See J. Drennan, ‘Faltering KR Trial’s Legacy “Uncertain”’, The Phnom Penh Post, 13 March
2013, available at http://www.phnompenhpost.com/national/faltering-kr-trial%E2%80%99s-legacy-

%E2%80%98uncertain%E2%80%99 (visited 15 June 2015).
98See Dittrich 2014, at 689 and Dittrich 2016.
148 V.E. Dittrich
optimize legacy…, time and budgets should be allowed to appoint a Legacy

Officer, or to assign the duties of planning for legacy with a particular staff person,
and for all staff to write frequent progress reports, including legacy issues and les-
sons learned, even if the ECCC were to end.’99 However, statements which equate
legacy planning with an enhanced and meaningful legacy mischaracterize the
power or control of any court. The Tribunal, whether engaged in extensive legacy
planning or not, plays a central, albeit limited role in the construction of multiple
legacies. Indeed, intended and realized legacies may not always be congruent.
The most visible and vocal actor on legacy in Cambodia has been the OHCHR
Cambodia Country Office. Since establishment in 1993 the country office is the
oldest field presence of the OHCHR and traces its origins back to the United
Nations Transitional Authority in Cambodia (UNTAC). Pioneering and advocating
legacy work over a five year period, the ECCC legacy project of the OHCHR
Cambodia Country Office has been a unique program, commencing in 2010 to
foster a positive legal and jurisprudential legacy from the ECCC and contribute to
rebuilding a legal system governed by the rule of law and guided by human rights
standards.100 However, the office has not been an uncontroversial actor in
Cambodia and tensions with the government have complicated its work, not least
its legacy mandate. The office had a very committed expert legacy officer, engag-
ing with civil society actors and court officials and bringing them together with
domestic practitioners for instance for meetings such as the Judicial Roundtables.
The program continuously ran between 2010 and 2014, while a staff change
occurred in 2012. In spring 2014 the OHCHR Cambodia Country Office adver-
tised a legacy consultancy to oversee the completion of its ECCC legacy program
by mid-2015 and rehired the initial legacy officer. The OHCHR’s continuation of
this program beyond mid-2015 is dependent on funding, as the Office itself has
experienced severe budget cuts. The identified stakeholders of the legacy initia-
tives include national judges and prosecutors (at the provincial and appeal levels),
the Ministry of Justice, the Bar Association of the Kingdom of Cambodia, legal
aid providers, judges, prosecutors and lawyers of the ECCC and law students.
Three aims of the project have been identified: (1) ‘Human Resources’ Legacy
Objective: knowledge, skill and experience exchange and transfer between ECCC
Cambodian judges, prosecutors and legal professionals and their counterparts in
the domestic justice sector while the Court is in operation, via peer-to-peer activi-
ties public lectures and seminars; (2) ‘Public Information’ Legacy Objective: pro-
motion of good ECCC practices, via knowledge sharing avenues, online
information, newsletters; and (3) ‘Legal Education’ Legacy Objective: initiatives
which integrate the ECCC’s work into ongoing legal and judicial reform process
presented in the Royal Government of the Kingdom of Cambodia’s Rectangular
99See Unknown, ‘The Legacy of the Khmer Rouge Trials Needs to be Planned’, The Phnom Penh
Post, available at http://www.phnompenhpost.com/national/legacy-khmer-rouge-trials-needs-be-

planned (visited 15 June 2015).
100See OHCHR Cambodia Country Office, ‘ECCC Legacy Program Overview’, available at
http://cambodia.ohchr.org/EN/PagesFiles/ECCC_legacy_program.htm (visited 15 June 2015).

Strategy, via development of tools, handbooks, guidance notes or law school cur-
ricula.101 One example of a completed legacy project is the publication of an
annotated version of the Cambodian Code of Criminal Procedure in March 2014
that explains to judges and prosecutors how the ECCC dealt with procedural
issues. The annotated code has been published in both English and Khmer and was
envisaged as an everyday tool for legal practitioners in the domestic court system.
Originally the project was the brainchild of William Smith, International Deputy
Co-Prosecutor at the ECCC, who stated ‘The aim was to create a tool to
strengthen the rule of law in Cambodia’ as ‘We didn’t want to see the hard work of
the judges and legal practitioners at the ECCC go to waste. We wanted to see it
transition into the national courts.’102 Ith Rady, Undersecretary of State at the
Ministry of Justice, noted that the annotated code is not officially recognized by
the government,103 however Cambodian lawyers can draw upon this tool in prac-
tice and are eager to do so as seen in several advocacy training sessions. How leg-
acy developments will continue after the OHCHR Cambodia Country Office
phases out its focal point on legacy remains to be seen.
Various national and international NGOs have become involved in legacy activ-
ities since at least 2009, including Adhoc, CHRAC, DC-Cam, International Center
for Transitional Justice and Open Society Justice Initiative. Through projects and
events civil society actors attempt to weigh in on the debate and claim ownership.
The topic of legacy is a source of publicity, visibility and funding for NGOs and to
a certain extent has become a competitive market.104 Legacy discussions and
meetings organized independently from the Court have not particularly been wel-
comed by the ECCC. For instance, one NGO representative recalls that in 2011
‘we were told by the Court we had no business holding a meeting on legacy’.105
As noted above, the Tribunal’s approach toward NGO legacy engagement shifted
in summer 2012. The hitherto largest event, the ECCC Legacies Conference, was
organized by CHRAC with the ECCC in September 2012. The ECCC had a strong
stage presence at the conference, but different perspectives, perceptions and con-
structions of legacy were presented. As critics were quick to point out the holding
101See Job Advert ‘Consultant for ECCC Legacy Programme’, available at https://jobs.undp.org/
cj_view_job.cfm?cur_job_id=44171 (visited 15 June 2015).
102W. Smith cit. in L. Crothers, ‘ECCC Aims for Legacy With New Criminal Procedure Code’,
The Cambodia Daily, available at http://www.cambodiadaily.com/archives/eccc-aims-for-legacy-

with-new-criminal-procedure-code-54935/ (visited 15 June 2015).
103Ibid.
104For example, in January 2014 the Khmer Institute of Democracy issued a call for funding
for the ECCC legacy. The Concept Notes Seeking Funding explains ‘it is urgent that before the
ECCC end, there should be this kind of legacy project because ECCC resources and officers could
be good sources while it is still functioning. Other institutions and the ECCC itself have ideas
and projects going on. However, the legacy project of the Khmer Institute of Democracy would
be the best to take the lead.’ See Khmer Institute of Democracy, Concept Notes Seek Funding,
January 2014, available online at http://kidcambodia.org/index.php?option=com_content&
task=view&id=59&Itemid=76 (visited 15 June 2015).
105Author interview with civil society staff, Phnom Penh, 11 September 2012.
150 V.E. Dittrich
of the conference and talk about the lasting domestic impact of the tribunal
clashed with the actual realities of the Cambodian national judiciary, including the
trial of Beehive Radio director Mam Sonando. Rupert Abbott, Amnesty
International researcher who formerly worked in the ECCC Defence Support
Section, called it ‘a certain irony that as this legacy conference is happening, down
the road there is a high-profile politicised trial of someone we consider to be a
prisoner of conscience’.106 In March 2013 a follow-up workshop on the
Implementation of ECCC Legacies for Domestic Legal and Judicial Reform was
co-organized in Phnom Penh. On 28–30 April 2014 CHRAC also convened three
one-day legacy workshops at the Cambodian University for Specialities, with
about 200 students and guest speakers from the ECCC.
An enabling political environment permissive of different constructions of leg-
acy, committed to human rights and the rule of law, and conducive to judicial
reform is moreover paramount. For political reasons the Cambodian government
itself has been ambivalent about the establishment and ongoing work of the ECCC
and relations have not always been smooth and actually confrontational at times.
Moreover, the reluctance of the Cambodian government to significantly engage
with the ECCC’s legacy in part links back to the politics of its establishment as
internationally-assisted domestic court. It seems the Tribunal is inter alia perceived
or framed as a threat to the status quo. The Cambodian government though is well
aware that it enjoys a certain amount of international attention and credibility for
supporting the ECCC and judicial reforms. It is noteworthy that Cambodia is one
of the few countries in the region to have ratified the Rome Statute. The Council
for Legal and Judicial Reform, often viewed as important legacy recipient, has
reportedly developed its own draft ECCC legacy strategy. Moreover, at several
occasions government officials have praised and welcomed the ECCC legacy. For
instance, the Government of Cambodia accepted all 91 recommendations made by
the members of the UN Human Rights Council following the previous year’s
Universal Periodic Review of Cambodia’s human rights record. Two recommenda-
tions related to the legacy of the ECCC. Belgium recommended that the
Cambodian government ‘cooperate with the Extraordinary Chambers, the United
Nations, the international donors and civil society to develop a strategy aimed at
ensuring that the national jurisdictions can benefit from the experience of the
Extraordinary Chambers’. Also, New Zealand recommended that the government
‘take steps to ensure that the work of the Extraordinary Chambers, including the
involvement of international judges working alongside Cambodian judges, is har-
nessed to contribute to the strengthening of the Cambodian judiciary’.107 How
these recommendations have been put into practice is not clear. Deputy Prime
Minister Sok An had underlined the efforts and commitment in this regard:
106R. Abbott cit. in S. White, ‘Legal Eagles, Officials Hail Tribunal’s Legacy’, The Phnom Penh
Post, 14 September 2012, available at http://www.phnompenhpost.com/national/legal-eagles-

officials-hail-tribunal%E2%80%99s-legacy (visited 15 June 2015), at 6.
107R. Abbott, ‘Preserving the Legacy of the ECCC’, The Phnom Penh Post, 7 April 2010, avail-
able at http://www.phnompenhpost.com/national/preserving-legacy-eccc (visited 15 June 2015).

Indeed, national ownership and capacity building are important pillars of the partnership
between Cambodia and the UN at the ECCC. This was always an explicit objective for the
ECCC shared by both the Royal Government and the United Nations, and is one of the
most important parts of the true and lasting legacy of the ECCC. … Experience in other
courts dealing with mass crimes of this nature in which the international community has
been involved shows that it is by no means a foregone conclusion that knowledge and
skills will be transferred. It is all too easy to devote all attention to the pressing demands
and challenges of the judicial process in hand without spending the time and resources
needed to ensure a sound legacy. In Cambodia we have a proverb, ‘The boat departs, but
the port remains’.108
Local ownership and national buy-in become crucial for a hybrid tribunal if the
port is to remain after the boat departs, to borrow from the Cambodian proverb.
This resonates with another metaphor used by Latt Ky from the NGO Adhoc with
regard to capacity building, ‘We will make sure people understand the legacy. We
cannot always give fish to people, we have to teach them how to fish.’109 The
example of translation is a case in point. Upon request for assistance made by the
Cambodian Government in light of the International Court of Justice Decision on
the Request for Interpretation of the Judgment of 15 June 1962 in the Case con-
cerning the Temple of Preah Vihear (Cambodia v. Thailand) the ECCC Court
Management Section assigned interpreters for translation on live TV. The ECCC’s
role was also highlighted by Youk Chhang, the director of DC-CAM, underlining
that ‘the ECCC has provided critical training and experience to many
Cambodians, and it is through this experience that the four translators were able to
work with such skill and confidence’.110 The emphasis on balancing international
and national engagement is echoed by the OHCHR in its legacy tool:
By definition, hybrid approaches require investment from both international and national
organizations, Governments, victim organizations, legal communities, and civil society.
Ideally, all those involved ought to feel vested in the process. Experience has shown that
appropriate levels of ownership are difficult to achieve and are intimately connected with
political will.111
Court officials have mentioned distrust vis-à-vis NGOs and suspicion over
motivations. Expressing this skepticism, one tribunal official stated ‘we look at
what has been the hidden agenda, who organized this… Would you shake hand
with the person who stepped on your toe or not?’112 This goes hand in hand with
108Sok An, ‘Remarks to the Meeting on the ECCC of representatives of ASEAN plus India and
the Republic of Korea’, 1 April 2011, available at http://www.eccc.gov.kh/en/document/public-

affair/remarks-meeting-eccc-representatives-asean-plus-india-and-republic-korea-he-d (visited 15
June 2015).
109L. Ky, Panel, ECCC Legacies Conference, Phnom Penh, 14 September 2012.
110See J. Ward, ‘ECCC Staff Instrumental in Transmitting ICJ Judgement on Preah Vihear to
Cambodians’, ECCC Blog, 22 November 2013, available at http://www.eccc.gov.kh/en/blog/

2013/11/22/eccc-staff-instrumental-transmitting-icj-judgement-preah-vihear-cambodians (visited
15 June 2015).
111OHCHR, supra note 53, at 9.
112Author interview with ECCC staff, Phnom Penh, 11 September 2012.
152 V.E. Dittrich
an expressed weariness of the ‘seasonal attention’ towards the court during fund-
raising cycles, with ‘many flavor of the day agendas that they push in the media
and impose on the court, they are self-serving’.113 There is a sense of grievance
that only the Tribunal knows all aspects of the legacy, other actors only focus on
selective aspects. It has been suggested that in part there may be different under-
standings of the notion of legacy which fuels confusion. Some long-standing
observers point to the difficulty of the term in generating engagement and com-
mon ground: ‘Legacy is a very politicized, sensitive word…. There is a sense from
the Court that it is foreigners who are telling Cambodians what the ECCC is meant
to mean for Cambodia. They want to take ownership’ or ‘[t]here was still the idea
someone needs to control legacy, that entity then needs to dictate to everyone else
how it is done. … Knowledge transfer is the other term often used for essentially
the same thing … But alas, we chose legacy.’114 While legacy is more encompass-
ing than knowledge transfer, this observation emphasizes another important
dynamic: funding.
6.5.3 Funding Requirements
Against the backdrop of the ECCC’s delicate funding situation overall, funding
requirements for legacy have stirred considerable debate, both in terms of supply
and demand. On the one hand, legacy was seen as a rhetorical boost and leitmotiv
with purchasing power to gain donors’ interest. On the other hand, given the pre-
carious financial situation overall, it was made clear that legacy was seen as a kind
of luxury and not a priority given the financial insecurity for the judicial work of
the institution. Funding uncertainty has plagued the court from the start. Initially,
the ECCC was expected to cost $60 million in total and to be a three-year opera-
tion.115 The estimated total expenditure of over $230 million by February 2015 far
exceeds this figure and the Tribunal has faced various financial crises where fund-
ing has been short on several occasions.116 In this sense, the role of donors and the
Group of Interested States could be significant for legacy production, recording,
and enforcement. This entails that the Court is backed politically, financially, and
rhetorically in its legacy efforts, constructively monitored, and encouraged by the
major supporters early on in this direction. The importance of legacy financiers
cannot be underestimated as their support shapes how enabling or disabling the
work environment for legacy actors is. Providing seed money and funding to
113Author interviews with ECCC officials, Phnom Penh, 11 September 2012.

114Author interview with UN staff, Phnom Penh, 4 September 2012.
115P. Maguire, ‘Cambodia’s Troubled Tribunal’, New York Times, 28 July 2010, available at http://
www.nytimes.com/2010/07/29/opinion/29iht-edmaguire.html (visited 15 June 2015).

116See Tortora 2003, at 107.
maintain momentum is paramount. Funding has proven a delicate issue for the
ECCC as the examples of the Virtual Tribunal and the archival center illustrate.
From a critical perspective, the focus on legacy by the ECCC may be viewed as a
public relations tool and source of extra funding. To explain the newly displayed
interest of the ECCC in its legacy in 2012, critical commentators suggested that
inter alia ‘dollar signs are seen behind the term legacy’, that Cambodian officials
‘think it is a chunk of money’ and ‘they see if they don’t get involved now, the fund-
ing will go to the NGOs’.117 Such comments indicate an instrumental if not oppor-
tunistic approach to legacy, seeing it as a mere means to obtain further funding. Two
developments illustrate that funding considerations and budget prospects had indeed
entered the equation and taken center stage in legacy discussions. First, the Chief of
Budget and Finance, Taung Socheat, was appointed Head of Legacy at the ECCC.
This appointment generated a mix of reactions ranging from astonishment and
amusement to bewilderment among commentators.118 It seemingly sends the signal
that his skills are deemed necessary and appropriate for the tasks which suggests a
managerial view on legacy. Second, the ECCC drew up an extensive budget for leg-
acy and presented it in the core budget. The 2012–2013 budget included a so-called
Legacy/Residual Team comprising five positions for an ECCC Legacy Unit and a
Virtual Tribunal Team. This included $492,500 for the Legacy/Residual Component
as this component was frozen during the 2012–2013 budget approval process. The
2013 requested budget was $412,500.119 The 2012–2013 budget amounted to $89.6
million in total and was approved in March 2012 with two conditions. One condi-
tion directly concerned legacy activities: ‘Activities under Component (D) of the
budget related to Legacy and Residual Issues should be deferred until such time that
sufficient funding for both the international and national components has been
secured, in addition to additional time to study the Legacy proposal, including the
funding requested by the international component.’120
Two approaches to legacy appear to contest the amount of funding required to
realize the ECCC’s potential as a legacy leaver. On the one hand, an additional
focus on legacy is believed to incur considerable costs for which there is simply no
extra budget before the conclusion of judicial proceedings. Taking this perspective,
legacy work is viewed as time-consuming, resource intensive and undertaken at
the expense of core budget work. David Scheffer, UN-appointed Special
Representative of the Secretary General, seemed to follow this logic of sequencing
when stating on 13 September 2012: ‘We have to be patient. Legacy is a long term
endeavour. … Now is not the time to press for large donations by governments for
117Author interviews with civil society staff and UN staff, Phnom Penh, 4, 10 and 11 September 2012.
118Authorinterviews with ECCC staff and civil society staff, Phnom Penh, 4–15 September 2012.
119ECCC, ‘Revised Budget 2012–2013’, available at http://www.eccc.gov.kh/sites/default/files/
RevisedBudget2012-2013w-annexes.pdf (visited 15 June 2015).
120See ECCC, ‘ECCC Budget for 2012–2013 Published’, ECCC Website, available at
http://www.eccc.gov.kh/en/articles/eccc-budget-2012-2013-published (visited 15 June 2015).

154 V.E. Dittrich
legacy. I have been pressing donors to keep the court alive, literally.’121 In a sense,
legacy may be portrayed as a luxury the ECCC cannot afford. The perception of
legacy as a ‘plus’ to be added at the whim of the donors and the tribunals them-
selves depending on resources and capacity has generated considerable criticism.
On the other hand, it is argued that legacy work does not have to involve high
costs provided there is commitment and a willingness by actors involved. For
instance, tribunal staff may give up their own time to help with training, mentor-
ing, advocacy and outreach. James Heenan, the then Head of the OHCHR country
office, is an advocate for meaningful legacy activities within time, space and
budget restraints. He stated, ‘I am a believer that legacy is cheap, can be cheap.’122
Pointing to funding constraints from this perspective almost exposes limited com-
mitment, creativity, innovation or collaboration efforts.
The sustainability of the ECCC’s legacy work has become a matter of concern.
The challenge of sustainability is shared across the international tribunals more
widely, given the dire financial climate overall and realization of the limitations to
legacy planning, thus appears not made up out of thin air. In early 2014 ECCC
spokesman, Lars Olsen, confirmed that legacy activities have been discontinued
due to budgetary constraints. Statements by court officials, such as ‘They wouldn’t
give us the budget. They didn’t approve’,123 suggest a particular resource-driven
conception of legacy work. It seems expected that funding come from conven-
tional donor channels. Decisions to discontinue legacy activities if such funding
fails to materialize seem myopic. It suggests a passive stance on behalf of the
court as legacy leaver. Simply pointing to budget cuts with regard to the legacy
projects does not portray the ECCC in a very ambitious, imaginative and proactive
light as legacy leaver. Other tribunals have sought and succeeded in obtaining
extra-budgetary funding for legacy initiatives, for instance from foundations, states
and international organizations and collaborated with project partners without hav-
ing a staff team working full-time on legacy.
6.6 Conclusion
The legacies of the ECCC remain under construction and have become sites of
contestation and struggle over the Tribunal’s meaning for the institution itself,
Cambodia and international criminal justice. Legacy building is ongoing inside and
outside the Tribunal and the legacies remain in the making. This chapter suggested
opening the perspective beyond jurisprudential and procedural issues and demon-
strated that the use of a legacy lens enriches our understanding of the workings and
role of the ECCC, before and beyond completion of mandate. It has been argued
121D. Scheffer, Opening Remarks, ECCC Legacies, Phnom Penh, 13 September 2012.
122J.
Heenan, Panel and Launch Reception, ECCC Legacies Conference, Phnom Penh, 13 September
2012.
123Author interview with ECCC staff, Phnom Penh, 12 September 2012.
that the concept of legacy, while so central in debates and activities today, seems to
be engulfed in a paradoxical situation: it is under-studied, yet rhetorically overused.
It was underlined that the common concept of legacy needs to be problematized to
stimulate a more systematic conceptualization of the process of legacy formation.
The notion of plural legacies advocated recognizes the multiplicity of meanings of
legacy and the dynamic process of legacy leaving and legacy building. Furthermore,
in taking such a process-oriented perspective, the exactitude of viewing legacy pri-
marily or solely as the Tribunal’s own institutionalized endeavour and object of
intended and deliberate planning needs rethinking. Foregrounding the role of actors,
it has been argued that the ECCC is a central, albeit one of a panoply of legacy
actors. The institutionalization of legacy at the ECCC was traced rhetorically, struc-
turally, and practically. Resorting to a more nuanced legacy concept as presented
here emphasizes the multidimensionality and multiplicity of legacies.
The ECCC appears to have hesitantly or ambiguously embraced its role as
legacy leaver. This self-understanding at first glance seems to divide advocates of
judicial reform and advocates of the status quo in Cambodia. Legacy engagement
has accelerated and decelerated in Cambodia over the past few years. Some key
dynamics shaping this process such as funding constraints, ownership claims and
meaning making were exemplarily explored here. A peak moment was certainly
the ECCC Legacies Conference in September 2012, just months after the first
case before the ECCC was concluded, which temporarily gave the topic height-
ened publicity, visibility and impetus. For several reasons the ECCC is a unique
institution, including its hybrid nature and localization in the national courts of
Cambodia, the lapse of time since the crimes under investigation were committed,
the advanced age of the accused, victim participation, outreach strategy, allega-
tions of corruption and political interference and financial insecurity. Differences
in institutional set-up, scope and time horizons between the ad hoc tribunals and
the ECCC should not be dwarfed or glossed over. The wider political context and
institutional landscape deserves more attention when assessing the ECCC’s role
in legacy building. It appears that legacy efforts have been severely weakened
because of a lack of imagination and knowledge about what the Tribunal could do
to shift the status quo in an authoritarian state as in Cambodia where legacy has
become a politicized term which the elite itself is seeking to control. Finally, in
light of the broader legacy actor landscape and other legacy initiatives it is impor-
tant to appreciate that the significance and meaning of legacies is not only a legal
question but also, and importantly, a political question.
References
Ainley K (2003) Transitional Justice in Cambodia: The Coincidence of Principle and Power. In:
Jeffrey R et al (eds) Transitional Justice in the Asia-Pacific. Cambridge University Press,
Cambridge, pp 125–156
Barnett M, Finnemore M (1999) The Politics, Power and Pathologies of International
Organizations. International Organization 53:699–732
156 V.E. Dittrich
Bates A (2010) Transitional Justice in Cambodia: Analytical Report. ATLAS Project. British
Institute of International and Comparative Law, Paris
Ciorcari J (ed) (2006) The Khmer Rouge Tribunal. Documentation Centre of Cambodia, Phnom
Penh
Dittrich VE (2014) Legacies in the Making: Assessing the Institutionalized Legacy Endeavour of
the Special Court for Sierra Leone. In: Jalloh C (ed) The Sierra Leone Special Court and Its
Legacy: The Impact for Africa and International Criminal Law. Cambridge University Press,
Dittrich VE (2016) Legacies of the International Criminal Tribunals (Unpublished Manuscript)
Elander M (2013) The Victim’s Address: Expressivism and the Victim at the Extraordinary
Chambers in the Courts of Cambodia. The International Journal of Transitional Justice
7:95–115
Fawthrop T, Jarvis H (2004) Getting Away with Genocide? Elusive Justice and the Khmer Rouge
Tribunal. Pluto Press, London/Ann Arbor
Finnemore M, Sikkink K (2001) The Constructivist Research Program in International Relations
and Comparative Politics. Annual Review of Political Science 4:391–416
Hall J (2009) Court Administration at the ECCC. In: Ciorciari J, Heindel A (eds) On Trial: The
Khmer Rouge Accountability Process. Documentation Center of Cambodia, Phnom Penh,
pp 172–253
Hamilton T, Ramsden M (2004) The Politicisation of Hybrid Courts: Observations from the
Extraordinary Chambers in the Courts of Cambodia. International Criminal Law Review
14:115–147
Kendall S, Nouwen S (2014) Representational Practices at the International Criminal Court:
The Gap between Juridified and Abstract Victimhood. Law and Contemporary Problems
76:235–264
McCargo D (2011) Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribunal.
International Affairs 87:613–627
Meierhenrich J (2006) The UN International Criminal Tribunals: The Former Yugoslavia,
Rwanda and Sierra Leone by William A. Schabas. American Journal of International Law
102:696–703
Nmehielle V, Jalloh C (2006) The Legacy of the Special Court for Sierra Leone. Fletcher Forum
of World Affairs 30:107–124
Park S, Vetterlein A (2010) Owning Development. Creating Policy Norms in the IMF and the
World Bank. Cambridge University Press, New York
Pham P, Vinck P, Balthazard M, Hean S, Stover E (2009) So We Will Never Forget - A popula-
tion based survey on attitude about social reconstruction and the Extraordinary Chambers in
the Courts of Cambodia. Human Rights Center, University of California Berkeley,
Reiger C (2009) Where to From Here for International Tribunals?. Considering Legacy and
Residual Issues, ICTJ Briefing Paper
Schabas W (2006) The UN International Criminal Tribunals: The former Yugoslavia, Rwanda
and Sierra Leone. Cambridge University Press, Cambridge
Searle J (1995) The Social Construction of Social Reality. Penguin Books, London
Sieff A (2013) Seeking Justice in the Killing Fields. American Bar Association Journal,
www.abajournal.com/mobile/mag_article/seeking_justice_in_the_killing_fields. Accessed 15
June 2015
Sperfeldt C (2013) From the Margins of Internationalized Criminal Justice. Journal of
International Criminal Justice 11:1111–1137
Tortora G (2003) The Financing of the Special Tribunals for Sierra Leone Cambodia and
Lebanon International. Criminal Law Review 13:93–124
Part II
Assessing the Contributions
to Substantive International
Criminal Law
Chapter 7
The Duch Case: The ECCC Supreme
Court Chamber’s Review of Case 001
Franziska C. Eckelmans
Abstract The Supreme Court Chamber (SCC) closed Case 001, the case of Kaing
Guek Eav alias “Duch”, the former chairman of S-21 (Tuol Sleng), when it issued
its first Judgment. The SCC addressed the grounds of appeal relevant to his guilt
for crimes against humanity and war crimes, amended the sentence imposed from
30 years to a life-long prison term and confirmed the Trial Chamber’s approach
to reparations. The SCC stressed that the principle of legality is essential to the
legitimacy of the ECCC that delivers judgment some 35 years after the facts. The
SCC assumed a scope of review that arguably exceeded that applied by other inter-
national appellate chambers. In addition, the SCC failed to convincingly estab-
lish that the ECCC is a part of the Cambodian legal system, with the consequence
of not granting Kaing Guek Eav compensation for his illegal detention in the
Cambodian Military Prison. Last but not least, it refrained from defining the con-
cept of “most responsible person” for the crimes committed in that it interpreted
this phrase, not as a personal jurisdiction requirement, but as a policy guideline for
the Co-Investigating Judges.
Keywords Scope of appellate review · Illegal detention · Sentencing · Reparations ·

Crimes against humanity · Nullum crimen sine lege · Personal jurisdiction · Customary
international law
The author is Legal Officer in the Appeals Division of the ICC. The views expressed are those of
the author and cannot be attributed to the ICC or any other organisation to which the author is or
was attached. Decisions mentioned in this article are those of Case File 001/18-07-2007 (KAING
Guek Eav), if not indicated otherwise.
F.C. Eckelmans (*)
The Hague, Netherlands
e-mail: franziska@eckelmans.info

DOI 10.1007/978-94-6265-105-0_7
160 F.C. Eckelmans
Contents
7.1 Introduction.......................................................................................................................... 160
7.2 The Trial Judgment.............................................................................................................. 161
7.3 The Appeal Proceedings...................................................................................................... 162
7.4 The Appeal Judgment.......................................................................................................... 164
7.4.1 Introduction................................................................................................................ 164
7.4.2 Principle of Legality.................................................................................................. 165
7.4.3 Personal Jurisdiction.................................................................................................. 170
7.4.4 Sentence and Compensation for Illegal Detention..................................................... 172
7.4.5 Reparations................................................................................................................ 175
7.5 Conclusion........................................................................................................................... 178
References................................................................................................................................... 179
7.1 Introduction
The Extraordinary Chambers in the Courts of Cambodia (ECCC) took four and a
half years from the Co-Prosecutor’s Introductory Submission1 in July 2007 to the
release of the Appeal Judgment concluding the ECCC’s first case in 2012.2
Compared to other first proceedings before international(ised) criminal courts this is
a relatively short period of time, which can be explained by Kaing Guek Eav’s deci-
sion to admit the underlying crimes and essentially to not challenge the evidence.
However, at the last day of trial, his defence took a dramatic turn in that his Khmer
co-counsel pleaded for an acquittal alleging a lack of personal jurisdiction of the
ECCC. The international co-counsel had requested a mitigation of sentence leading
to a total of ten years of imprisonment, the period Kaing Guek Eav had already spent
in detention. Kaing Guek Eav stood with his Khmer defence counsel’s request for
relief and dismissed his international defence counsel shortly before the ECCC Trial
Chamber delivered the judgment. On appeal, he proceeded with two Khmer counsel.
Kaing Guek Eav alias “Duch”, was the former chairman of S-21 (Tuol Sleng),
the Khmer Rouge’s infamous security prison in Phnom Penh. The Trial Chamber
convicted him for having committed as chairman of S-21 in a joint criminal enter-
prise of a second degree crimes against humanity and grave breaches of the 1949
Geneva Conventions.3
1The Co-Prosecutors (see Article 16 ECCC Law) have to submit an Introductory Submission to
the Co-Investigating Judges (see Article 23new ECCC Law) that starts the judicial investigation
into the facts as delineated by the Co-Prosecutors, see ECCC IR Rules 53, 54.
2The Summary of the Duch Appeal Judgment was read out on 3 February 2012 (Summary),
available at http://www.eccc.gov.kh/sites/default/files/articles/03022012Summary-Eng.pdf (vis-

ited 15 June 2015); the written judgment was published in Khmer and English on 9 April 2012,
see Judgment, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-F28), Supreme Court Chamber,
3 February 2012 (hereafter Duch Appeal Judgment).
3Judgment, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-E188), Trial Chamber, 26 July 2010
(hereafter Duch Trial Judgment); the two crimes are laid down respectively in Arts 5 and 6 ECCC Law.
7 The Duch Case: The ECCC Supreme Court Chamber’s Review … 161
On appeal, the Supreme Court Chamber changed many of the findings of the
Trial Chamber, but without drastic consequences for the verdict.4 It amended,
however, the sentence. The Supreme Court Chamber substituted a sentence of life
imprisonment for the 30-year imprisonment imposed by the Trial Chamber.5 The
Trial Chamber’s reparation decision was fully confirmed.
This chapter provides a procedural overview of the appeal proceedings and, in
presenting the Appeal Judgment, focuses on the areas that are conceivably of inter-
est to practitioners in the field of international criminal law.
7.2 The Trial Judgment
The Judgment of the Trial Chamber was delivered on 26 July 2010 in three lan-
guages, Khmer, English and French (Trial Judgment).6 It addressed four main
issues. First, the Trial Chamber held that it had jurisdiction, including personal
jurisdiction over Kaing Guek Eav as one of the most responsible persons for the
crimes.7 In a second part, the Trial Chamber interpreted the law and analysed the
facts relevant to the question of guilt or innocence and found that Kaing Guek Eav
was responsible for persecution on political grounds as a crime against humanity.8
The Chamber held that persecution subsumed the crimes against humanity of
extermination (encompassing murder), enslavement, imprisonment, torture
(including one instance of rape), and other inhumane acts.9 Further it found that he
was responsible for grave breaches of the 1949 Geneva Conventions, namely wil-
ful killings, torture and inhumane treatment, wilfully causing great suffering or
serious injury to body or health, wilfully depriving a prisoner of war or civilian of
fair trial rights, and of unlawful confinement of civilians.10 Kaing Guek Eav was
held criminally responsible for having committed these crimes as a member of a
joint criminal enterprise in its systemic (second) form.11 In a third part, the Trial
Chamber discussed sentencing and imposed a term of 35 years.12 It reduced the
4See Duch Appeal Judgment, supra note 2, at 320–321.

5Duch Appeal Judgment, supra note 2, at 320–321; Duch Trial Judgment, supra note 3,
§§ 679–680.
6Duch Trial Judgment, supra note 3.
7Duch Trial Judgment, supra note 3, §§ 17–25.
8The Judge from New Zealand dissented on the question whether Kaing Guek Eav had prosecu-
torial intent, see Duch Trial Judgment, supra note 3, §§ 397–399.

9Duch Trial Judgment, supra note 3, §§ 59–399, 559–568, 677.
10Duch Trial Judgment, supra note 3, §§ 400–469, 677.
11Duch Trial Judgment, supra note 3, §§ 470–558; at §§ 516, 517; the systemic joint criminal
enterprise is often described as the second form of joint criminal enterprise.

12The French Judge dissented; see Duch Trial Judgment, supra note 3, Separate and Dissenting
Opinion of Judge Jean-Marc Lavergne on Sentence, 26 July 2010.

162 F.C. Eckelmans
sentence by five years as a remedy (compensation) for more than eight years of
illegal detention in the Military Prison of Cambodia.13 The fourth part of the Trial
Judgment dealt with the status of civil parties and reparations.14 The Trial
Chamber did not issue any specific reparation order against the convicted person.
However, in favour of the recognised 66 civil parties15 it found that two measures
could appropriately be adopted under the circumstances: the inclusion in the
Judgment of the names of the victims and the relatives they lost, and the publica-
tion of the compilation of the statements of apology made by the convicted person
in the course of the trial.16
7.3 The Appeal Proceedings
The Co-Prosecutors17 and the Defence18 both appealed the Trial Judgment. The
Co-Prosecutors requested imprisonment of somewhat less than 45 years19 and the
Defence the accused’s release for lack of personal jurisdiction.

15Duch Trial Judgment, supra note 3, §§ 645, 650, 682.
16Duch Trial Judgment, supra note 3, §§ 667, 683.
17Co-Prosecutors’ Notice of Appeal against the Judgment of the Trial Chamber in the Case of
KAING Guek Eav alias Duch, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-E188/2),
Office of the Co-Prosecutors, 16 August 2010; Co-Prosecutors’ appeal against the judgment
of the Trial Chamber in the Case of Kaing Guek Eav alias Duch, Kaing Guek Eav (Duch)
(001/18-07-2007-ECCC-F10), Office of the Co-Prosecutors, 13 October 2010 (Co-Prosecutors’
Appeal).
18Notice of Appeal by the Co-Lawyers for KAING Guek Eav Alias Duch against the Trial
Chamber Judgment of 26 July 2010, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC/TC-E188/8),

Kaing Guek Eav Defence, 24 August 2010; Appeal Brief by the Co-Lawyers for KAING
Guek Eav alias ‘Duch’ against the Trial Chamber Judgment of 26 July 2010, Kaing Guek Eav
(Duch) (001/18-07-2007-ECCC-F14), Kaing Guek Eav Defence, 18 November 2010. See
also Co-Prosecutors’ Response to the Appeal Brief by the Co-Lawyers for KAING Guek Eav
alias “Duch” against the Trial Chamber Judgment of 26 July 2010, Kaing Guek Eav (Duch)
(001/18-07-2007-ECCC-F14/4), Office of the Co-Prosecutors, 20 December 2010; Reply by the
Co-Lawyers for KAING Guek Eav alias “Duch” to the Co-Prosecutors’ Response of 20 December
2010, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-F14/4/2), Kaing Guek Eav Defence, 14
January 2011.
19The Co-Prosecutors refrained from stipulating an exact number of years of imprisonment,
see Co-Prosecutors’ Appeal supra note 18, at 65 that reads: ‘(c) Revise the sentence imposed
by the Trial Chamber to a sentence of life imprisonment; (d) Order that this sentence of life
imprisonment be reduced to a term of forty-five years to provide an appropriate remedy for the
Respondent’s unlawful pre-ECCC detention; (e) Order that a further reduction be made as appro-
priate for the very limited mitigating circumstances obtaining in the circumstances of this case’.
Kaing Guek Eav`s appeal clearly suffered from his choice to dispense with an
international co-lawyer,20 not only in style and language but also in his sole focus
on facts relevant to the determination of the ECCC’s personal jurisdiction.21 He
did not, for example, address international criminal law issues, such as the applica-
bility of joint criminal enterprise in its second form or issues relevant to the princi-
ple of legality. Kaing Guek Eav also did not respond to the Co-Prosecutors’
appeal, but relied solely on his own appeal.22 The Supreme Court Chamber
rejected the ECCC Defence Support Section’s request to file amicus curiae briefs
to strengthen the defence representations.23 The rather low standard of Kaing
Guek Eav’s pleadings might have triggered the Supreme Court Chamber’s ruling
that it was sufficient if “an appellant has pleaded his case in a manner that enables
an opposing party to know the case he has to meet, and enables the Supreme Court
Chamber to identify and rule upon the issues in dispute”.24 In addition, the
Supreme Court Chamber in fact interpreted favourably Kaing Guek Eav’s grounds
of appeal.25 This approach is very different from that of other international crimi-
nal tribunals. They have established high substantiation requirements, especially
with respect to alleging factual and procedural errors.26 The Supreme Court
Chamber was aware of this, and held that, in principle, it adopted these high sub-
stantiation standards. However, it also stipulated the discretion that it had in that
regard and held that its
overriding consideration in the exercise of its discretion is to preserve the right of a con-
victed person to appeal his conviction and sentence. It is not the function of the Supreme
Court Chamber to scrutinise the quality of a convicted person’s written appellate
advocacy.27
20Notification of Assignment of Co-Lawyer, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-E189),
Trial Chamber, 6 August 2010; this choice might have been due to the fact that the national and inter-
national Co-Lawyers of Kaing Guek Eav pleaded differently at the Closing Statements (ECCC IR
Rule 94); see Transcript, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-E1/82.1), 27 November
2009, at 60–62.
21See Transcript of Appeal Proceedings, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-F1/3.2),
29 March 2011, at 29, showing that Kaing Guek Eav neither allowed his lawyers to file a response
to the Co-Prosecutors’ Appeal (supra note 19) nor was willing (in principle) to answer orally to
legal arguments.
22Ibid.; Duch Appeal Judgment, supra note 2, §§ 358, 359.
23Duch Appeal Judgment, supra note 2, Annex 1, §§ 20–23.
24Summary, supra note 2, § 8; see also Appeal Judgment, supra note 2, § 15.
25Duch Appeal Judgment, supra note 2, §§ 337–338, 347.
26Staker and Eckelmans (2015), at 28–31.
27Duch Appeal Judgment, supra note 2, § 42.
164 F.C. Eckelmans
7.4 The Appeal Judgment
7.4.1 Introduction
The Appeal Judgment is the first judgment in a final appeal of the Supreme Court
Chamber.28 The Chamber rejected the grounds of appeal of Kaing Guek Eav rele-
vant to the ECCC’s personal jurisdiction and sentencing, while the Co-Prosecutor’s
main grounds of appeal, especially those on sentencing and cumulative convictions
were successful.29 Although the findings and conclusions of the Trial Judgment
were often confirmed, the Supreme Court Chamber substituted widely its legal rea-
soning for that of the Trial Chamber. The Appeal Judgment dealt foremost with the
scope of appellate review, personal jurisdiction, the principle of legality and in par-
ticular the underlying offences of crimes against humanity, such as enslavement,
rape, torture and extermination, as well as with cumulative convictions, sentencing
including compensation and, finally, with reparations.
The Appeal Judgment had to address for the first time whether and how to
apply the ECCC Agreement, ECCC Law and Cambodian law in respect of many
of the issues before it. Article 12(1) ECCC Agreement provides:
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.30
Against this background, the Supreme Court Chamber found that the ECCC
has to apply a sui generis system, separate from that applicable in the regular
courts of Cambodia with respect to the standard of appellate review, reparations
and effectively also for sentencing principles.31 The reason given was that the
28Before that point in time, the Supreme Court Chamber had to deal exclusively with immediate
appeals arising from Case File 002/19-09-2007-ECCC-TC/SC: Decision on Immediate Appeals By

NUON Chea and IENG Thirith on Urgent Applications for Immediate Release, (E50/2/1/4), 3 June
2011; Decision on Immediate Appeal by Khieu Samphan on Application for Release, (E50/3/1/4),
6 June 2011; Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the
Accused IENG Thirith, (E138/1/7), 13 December 2011; Summary of the Reasons for the Decision
on Immediate Appeal by NUON Chea Against the Trial Chamber’s Decision on Fairness of
Judicial Investigation, (E/116/1/6), 30 January 2012; Decision on Ieng Sary`s Appeal against the
Trial Chamber`s Decision on Motions for Disqualification, (E137/5/1/3), 17 April 2012.
29Duch Appeal Judgment, supra note 2, at 320; § 81 (personal jurisdiction); § 336 (cumulative
convictions), § 383 (sentencing).

30Emphasis added. See also Arts 20new (for the Co-Prosecutors), 23new (for the
Co-Investigating Judges and the Pre-Trial Chamber) and 33new ECCC Law (for the Trial and
Supreme Court Chambers).
31Duch Appeal Judgment, supra note 2, §§ 13, 354 (sui generis appellate system); 348 (ECCC
Law is ‘lex specialis’ for sentencing); 641 (Reparations); see also Trial Judgment, supra note 3,
§§ 574–578 (sentencing).
ECCC Agreement, the ECCC Law and/or the ECCC Internal Rules32 dealt with
these matters only in a cursory manner but apparently in a way different from that
laid down in Cambodian law.
7.4.2 Principle of Legality
7.4.2.1 Scope of Review
The Supreme Court Chamber focused heavily on the principle of legality and its
application to enslavement, rape, torture and persecution as crimes against human-
ity. It based its review on the Co-Prosecutors’ appeal against the Trial Chamber’s
approach (1) to cumulative convictions (alleging that it was erroneous to find that
the other underlying offences were subsumed by persecution as a crime against
humanity), (2) to rape as a crime against humanity (alleging that it was erroneous
to subsume it under torture as a crime against humanity) as well as (3) to enslave-
ment as a crime against humanity (alleging that all detainees of S-21 were also
enslaved contrary to the more limited findings of the Trial Chamber). Instead of
focusing solely on these alleged legal errors, the Supreme Court Chamber decided
to largely review proprio motu whether the Trial Chamber was correct (1) in find-
ing that crimes against humanity constituted an international crime between 1975
and 1979, (2) in finding that each of the underlying offences at issue was criminal
at that time and (3) in establishing the elements of each of the underlying offences
as they existed at the relevant time.
The Supreme Court Chamber stressed that, “careful, reasoned review of these
[Trial Chamber] holdings is necessary for ensuring the legitimacy of the ECCC and
its decisions”.33 About 35 years after the facts, this approach appears sensible. In
addition, as mentioned above in the chapter “Appeal Proceedings”, the Defence omit-
ted to raise any errors in respect of the application of the principle of legality.
Nevertheless, considering the scope of review assumed by other international(ised)
tribunals when considering legal errors34 and the fact that this subject was discussed
over 85 pages while rather an aside in the appeals,35 it cannot but be concluded that
the Supreme Court Chamber assumed a very wide scope of review with respect to
these legal errors. Other international(ised) tribunals’ Appeals Chambers have usually
been very careful to not extend their review much beyond the alleged legal errors.36
32The ECCC Judges in plenary adopted in 2007 the ECCC Internal Rules, last revision on
12 August 2011 (Revision 8) (ECCC IR).
34See Staker and Eckelmans 2015, at 36–37, 70–71.
35The Co-Prosecutors’ (brief) third ground of appeal concerned enslavement as a crime against
humanity, while rape and persecution were raised even more cursorily in the second ground of
appeal relevant to cumulative convictions.
36Staker and Eckelmans 2015, at 70–75.
166 F.C. Eckelmans
That the Supreme Court Chamber’s approach is different from that of other tribunals
arises most clearly from its section on the standard of review. While the Supreme
Court Chamber first heavily relied on the jurisprudence of international(ised) Appeals
Chambers and determined that “[t]he Supreme Court Chamber reviews the Trial
Chamber’s findings on questions of law to determine whether they are correct, not
merely whether they are reasonable”,37 it held in the next para:
In order to make a determination as to the issue on appeal, the Supreme Court Chamber
also reviews those legal findings of the Trial Chamber which constitute necessary predi-
cates for the impugned decision. In exceptional circumstances, the Supreme Court
Chamber may raise questions ex proprio motu or hear appeals where a party has raised a
legal issue that would not lead to the invalidation of the judgement but is nevertheless of
general significance to the ECCC’s jurisprudence.38
As to the first sentence, it is unclear what the Supreme Court Chamber meant
by holding that it may review findings that are “necessary predicates for the
impugned decision”. This may be read as implying a very broad review that may
include jurisdictional and related issues. The Supreme Court Chamber did not sup-
port this statement by reference to case law of other international or domestic tri-
bunals. However, such an understanding of the scope of review is arguably akin to
that applied when reviewing legal errors in some civil law countries.39
Nevertheless, in practice such a review of a legal error could arguably mean that
the appellant does not have any control as to the issues that the Supreme Court
Chamber will consider nor are the issues that the Supreme Court Chamber will
consider upon appeal foreseeable. Arguably, such broad powers’ involve a degree
of arbitrariness. On the other hand, the Supreme Court Chamber assuming such
powers may ensure stability for the jurisprudence and thereby arguably also
enhance the legitimacy of the ECCC.
The second sentence of the above quotation is referenced to the jurisprudence
of the ad hoc tribunals on the standard of review. They have indeed considered,
exceptionally and in the first years when developing its jurisprudence, grounds of
appeal raised solely for reasons of “general significance” to their jurisprudence
even though they did not affect the relevant findings.40 However, only on one

39E.g. in Germany, the appellants do not need to substantiate an error of law if it concerns the
material law (‘Sachruege’); see Germany Strafprozeßordnung, § 344 and the court usually applies
a wide scope of review in that regard.
40Prosecutor v. Akayesu, No. ICTR-96-4-A, Judgment, ICTR Appeals Chamber, 1 June 2001, §§
23–24; but also Kanyarukiga v. The Prosecutor, No. ICTR-02-78-A, Judgment, ICTR Appeals
Chamber, 8 May 2012, §§ 264, 267; Prosecutor v. Kupreškić et al. No. IT-95-16-A, Judgment,
ICTY Appeals Chamber, 23 October 2001, § 470; however, it still belongs to its standard
of review in recent judgments, see: Prosecutor v. Popović et al. No. IT-05-88-A, Judgment,
ICTY Appeals Chamber, 30 January 2015, § 16; see also Prosecutor v. Tadić, No. IT-94-1-A,
Judgment, Appeals Chamber, 15 July 1999, §§ 241, 247, 281; note that the MICT made no men-
tion of it, Prosecutor v. Ngirabatware, No. MICT-12-29-A, Judgment, MICT Appeals Chamber,
18 December 2014, §§ 6–12.
s pecific occasion, in the Erdemović appeal, in a situation akin to that regulated by

Article 81(2)(b) and (c) of the Rome Statute, did the ICTY Appeals Chamber
address issues proprio motu.41 Therefore, the reference to the ICTY jurisprudence
is slightly off point and does not as such justify the extensive reliance on this form
of review in the judgment. Beyond that, however, the Supreme Court Chamber
also referred to the Cambodian Criminal Procedure Code in support of this
approach, although it had stated in the same section of the Appeal Judgment that
the appellate scheme is sui generis that allows reliance on the ICTY and ICTR
jurisprudence by way of guidance.
The Supreme Court Chamber did not only make these statements, but also
applied this broad understanding of its scope of review to many issues before it, in
particular to the errors raised in relation to crimes against humanity, sentencing as
well as reparations.
7.4.2.2 Customary International Law
In establishing the law applicable in the 1970s, and in particular the status of cus-
tomary international law at the time, the Supreme Court Chamber did not, in the
first place, rely on the jurisprudence of the international criminal tribunals. It
rather criticised the Trial Chamber for too heavily relying on such jurisprudence
that was not relating to the law applicable in the 1970s and was not a primary
source of international law for the ECCC, as well as for not giving sufficient anal-
ysis to this topic.42 Instead, it referred to sources that demonstrated clearly that a
certain crime was already recognised in customary international law between 1975
and 1979, i.e. at the time of the ECCC’s temporal jurisdiction.43 It used the juris-
prudence of international criminal tribunals foremost to enforce its view.44
In discussing how to determine customary international law applicable between
1975 and 1979, the Supreme Court Chamber stipulated that it must find that a prin-
ciple or general rule had emerged that concerned “conduct that offends the laws of
humanity or the dictates of public conscience”. It furthermore held that “the tradi-
tional requirement of ‘extensive and virtually uniform’ state practice may actually
be less stringent than in other areas of international law, and that the requirement of
opinio juris may take pre-eminence over the usus element of custom”.45 It also
held that international and domestic prosecutions (and their results) are a part of
the “usus” element of custom. The Supreme Court Chamber has addressed with
41Prosecutor v. Erdemović, IT-96-22-A, Judgment, Appeals Chamber, 7 October 1997, § 16,

available at https://www.legal-tools.org/doc/f49012/ (visited 15 June 2015); see also Staker and
Eckelmans 2015, at 70–71.
42Duch Appeal Judgment, supra note 2, §§ 97, 159.
43Article 1 ECCC Agreement and Arts 1 and 2 ECCC Law clarify that the ECCC’s jurisdiction is
limited to the period 17 April 1975 to 6 January 1979.

44See Duch Appeal Judgment, supra note 2, §§ 145–157 (enslavement), 260 (persecution).
168 F.C. Eckelmans
this statement an area that other international(ised) appeal chambers deliberately

did not address.46 Its findings may accordingly be important for a more in-depth
consideration of the elements of customary international law in the realm of inter-
national crimes; an area important for both international criminal and public inter-
national law.
7.4.2.3 Crimes Against Humanity and Cumulative Convictions
In its discussions of whether the conduct for which Kaing Guek Eav had been
convicted was indeed establishing crimes against humanity between 1975 and
1979, the Supreme Court Chamber considered the following underlying offences:
enslavement, rape, torture and persecution.
It confirmed the Trial Chamber’s legal and factual findings on enslavement,
holding that the actus reus element of the crime entails, in line with the ICTY
Kunarac Appeal Judgment, “the exercise over a person of any or all powers attach-
ing to the right of ownership”.47 Beyond that, however, the Supreme Court
Chamber found it necessary to stipulate “the purpose implicit in the ownership
powers as such”, i.e. “to accrue some gain through the exercise over the victim of
those powers”.48 It held that this included economic gain that did not need to be
monetary and relied thereby on “enslavement as it existed in the post-World War II
jurisprudence”.49 The Supreme Court Chamber’s findings in that regard are some-
what ambivalent because it referred to the ICTY Kunarac Appeal Judgment in
support. However, the ICTY Kunarac Appeal Judgment primarily focused on how
and by what means the powers attaching to the right of ownership can be exercised
over a person.50
The Supreme Court Chamber did not confirm the Trial Chamber’s finding that
rape was a crime against humanity during the relevant time period. It stipulated
that none of the defendants before the Nuremberg and Tokyo Military Tribunals
had been convicted for rape. Furthermore, while rape had been included in the
Control Council Law No. 10, it was not contained in the 1950 Nuremberg
46See the work on the International Law Commission on this subject, in particular: First report
on formation and evidence of customary international law, Michael Wood, Special Rapporteur,
A/CN.4/663, at 27–41; see also in this context Formation and evidence in customary interna-
tional law, Elements in the previous work of the International Law Commission that could be
particularly relevant to the topic, Memorandum by the Secretariat, ILC A/CN.4/659 on the ele-
ments of state practice and opinio juris.
47Duch Appeal Judgment, supra note 2, §§ 153; see also Prosecutor v. Kunarac et al., Case No.
IT-06-23&IT-96-23/1-A, Judgment, Appeals Chamber, 12 June 2002, §§ 117, 118.

50Prosecutor v. Kunarac et al., Case No. IT-06-23&IT-96-23/1-A, Judgment, Appeals Chamber,
12 June 2002, §§ 117–121.

Principles.51 It also held that the jurisprudence of the ad hoc tribunals (recognising
rape as a crime against humanity) only applies to the law applicable in the 1990s.
It found then that Cambodian law “cannot provide relevant authority in this case”,
because the constitutive elements between rape as a crime against humanity and
rape as a domestic crime are too different due to the chapeau elements of crimes
against humanity.52 In this context it is worth noting that the Supreme Court
Chamber had already established earlier in the Judgment that crimes against
humanity, as such, existed in the relevant time period. Thus, this finding clarifies
that, according to the Supreme Court Chamber, the principle of legality requires
that the combination of both—the chapeau elements and the underlying offence,
rape—must have been criminal at the time of the commission of the offence. The
Supreme Court Chamber’s opinion was not singular or novel in its analysis of rape
or in its approach to the principle of legality. In an earlier decision, the Pre-Trial
Chamber had considered rape to fall merely under the definition of “any other
inhumane act” as crime against humanity.53
The Supreme Court Chamber then explored whether the specific act of rape
that had occurred according to the Trial Chamber’s findings would fall under tor-
ture as a crime against humanity and affirmed this. In affirming this, it found that
the Trial Chamber’s error had not materially affected the conviction, because the
Trial Chamber had found that in this specific case the instance of rape had in any
case been subsumed by torture. In making this finding, the Supreme Court
Chamber held that the 1975 Declaration on Torture was “declaratory of customary
international law by the time of the ECCC’s temporal jurisdiction.”54 Thus, it held,
in line with the Trial Chamber, that torture needed to be inflicted for a specific pur-
pose, in particular for the purpose of obtaining information or confessions.55
Turning to the Co-Prosecutors’ alleged errors with regard to cumulative convic-
tions, it is recalled that the Trial Chamber had found that persecution as a crime
against humanity occurred against all victims of the crimes for which Kaing Guek
Eav had been convicted. It had furthermore concluded that all other underlying
offences were subsumed by persecution as a crime against humanity. Only for sen-
tencing purposes, it took the methods by which this persecution occurred (exter-
mination, torture, imprisonment, enslavement etc.) into account when sentencing.
Without a specific error alleged in that regard, the Supreme Court Chamber over-
turned the Trial Chamber’s findings and held that in this specific case persecution as a
crime against humanity only occurred with respect to those detainees who were spe-
cifically targeted as members of a group. It, however, held, on the basis of the facts,
that “an unspecified number of individuals” were targeted without a discriminatory

52Duch Appeal Judgment, supra note 2, §§ 181–182.
53Decision on Appeals by Nuon Chea and Ieng Thirith against the Closing Order, Nuon Chea and
others (002/19-09-2007-ECCC-D427/2/15), Pre-Trial Chamber, 15 February 2011, §§ 149–154.

170 F.C. Eckelmans
intent, i.e. it found that the targeting was indiscriminate.56 In then addressing the Trial
Chamber’s findings on cumulative convictions, the Supreme Court Chamber agreed
with the Co-Prosecutors’ argument that persecution as a crime against humanity does
not embrace all the other offences underlying crimes against humanity. Hence, it
entered convictions for all the crimes separately, i.e. extermination (encompassing
murder), enslavement, imprisonment, torture and other inhumane acts.57
The Supreme Court Chamber held that in respect of the rules on cumulative con-
particular the test for cumulative convictions established in the Čelibići Appeal
victions, the ECCC should follow rules applicable on the international level, and in
Judgment.58 In this context, the Supreme Court Chamber made it a point to hold
that recourse to principles derived from other tribunals’ jurisprudence can only be
had if there is no binding applicable international law rule, such as a treaty.59
It is interesting to note that the Supreme Court Chamber held by reference to
the area of individual criminal responsibility (not challenged on appeal) that cus-
tomary international law may be found to exist where opinio juris is the predomi-
nant element but proof of state practice is problematic.60 It also held in that regard
that a lack of actual prosecution alone is not sufficient to disprove that a certain
crime is part of customary international law.61 Beyond being interesting for classi-
cal international law theorists, this statement might imply that the Pre-Trial and
Trial Chamber’s legal approach62 to accepting joint criminal enterprise in its first
and second form could also be followed by the Supreme Court Chamber in Case
002. However, the Supreme Court Chamber’s statement is ambiguous.
7.4.3 Personal Jurisdiction
Article 2 of the ECCC Agreement63 stipulates that “[t]he present Agreement further
recognizes that the Extraordinary Chambers have personal jurisdiction over senior
56Duch Appeal Judgment, supra note 2, §§ 277, 278, 281–284.

59Duch Appeal Judgment, supra note 2, § 290 ‘whether the Trial Chamber was correct in resort-
ing to rules established in ad hoc jurisprudence as opposed to primary sources of international

law’, §§ 298–300, 305.
61Ibid.
62Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal
Enterprise (JCE), Nuon Chea and others (002/19-09-2007-ECCC-D97/15/9), Pre-Trial Chamber,

20 May 2010; Decision on the Applicability of Joint Criminal Enterprise, Nuon Chea and others
(002/19-09-2007-ECCC-E100/6), Trial Chamber, 12 September 2011.
63Agreement 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, signed 6 June 2003, entered into force on 19 October 2004 (Agreement).
leaders of Democratic Kampuchea and those who were most responsible for the
crimes referred to in Article 1 of the Agreement”.64 Kaing Guek Eav claimed as a
jurisdictional issue that he was not one of the persons most responsible for the
crimes committed in the period of the temporal jurisdiction of the ECCC. 65
The Supreme Court Chamber, in interpreting Article 2 of the ECCC
Agreement, found that this provision allows the ECCC to only exercise its juris-
diction in respect of persons who were members of the Khmer Rouge.66 Second, it
found that the terms “senior leaders” and “most responsible” are non-justiciable.
According to the Supreme Court Chamber these terms merely establish guidelines
for the Co-Prosecutors and Co-Investigating Judges in the choice of whom to
bring to trial.67 Third, it held that the “senior leaders” should also be the “most
responsible” persons, but not vice versa. The Chamber’s take on personal jurisdic-
tion was one of the possible interpretations considered in academic circles,68 and
in line with similar conclusions drawn in the SCSL Brima Appeals Judgment.69
However, it is surely an interesting subject for a more in-depth review.70
The Appeal Judgment affects the proceedings in future cases before the ECCC
insofar as the question whether a person is the “most responsible” person or a
“senior leader” cannot anymore be raised by the parties as a jurisdictional mat-
ter.71 The prerogative of making this decision lies with the Co-Investigating
Judges. The only remaining judicial control of the Co-Investigating Judges deci-
sion on this matter can take place when the Co-Investigating Judges bring their
disagreement about this issue before the Pre-Trial Chamber.72 The
64Emphasis added.
65Defence Appeal, supra note 18.
66Duch Appeal Judgment, supra note 2, §§ 60, 61; the ‘Khmer Rouge’ are members of the
Communist Party of Kampuchea that reigned Democratic Kampuchea in the period over which
the ECCC have jurisdiction.
68Morrison 2009, at 599.
69Judgment, Prosecutor v. Brima, Kamara, Kanu (Case SCSL-2004-16-A), Appeals Chamber, §§
278–284.
70The Duch Appeal Judgment addressed more issues relevant to personal jurisdiction, such as
when jurisdictional challenges can (exceptionally) be raised, which are, however, without rel-
evance to future proceedings due to the main finding of the Supreme Court Chamber.
71See Internal Rules 74(3)(a) (jurisdictional appeal to Pre-Trial Chamber), 89(1)(a) (prelimi-
nary objection to Trial Chamber on jurisdiction); compare to Judgment, Nuon Chea and others
(002/19-09-2007/ECCC-E313) Trial Chamber, 7 August 2014, §§ 12–15.
72See Internal Rules 71, 72; Appeal Judgment, supra note 2, § 65; if the Pre-Trial Chamber does
not find the required super-majority on the matter the Co-Investigating Judges (or Co-Prosecutors)
disagree on, the investigation and prosecution will proceed (see Article 23new ECCC Law).
172 F.C. Eckelmans
Co-Investigating Judges who exercised this function in the past years had, how-
ever, apparently different views on this issue in relation to Cases 003 and 004.73
7.4.4 Sentence and Compensation for Illegal Detention
With respect to sentencing, the Appeal Judgment determined that Article 39 of the
ECCC Law stating that “[t]hose who have committed any crime … shall be sen-
tenced to a prison term from five years to life imprisonment” should be read as
imposing even a term higher than 30 years of imprisonment, the maximum penalty
other than life imprisonment under recent Cambodian law.74 It could be assumed
that the application of Cambodian law would have been more favourable to the
accused. However, as the Supreme Court Chamber imposed life imprisonment,
these findings had little impact on the Appeal Judgment, but merely set the scene
for Case 002. In determining sentencing principles, the Supreme Court Chamber
relied exclusively on jurisprudence of international criminal tribunals.75
The Supreme Court Chamber overturned the Trial Chamber’s sentence because
it found that the Trial Chamber erred in law by giving too much weight to mitigat-
ing factors, including to Kaing Guek Eav’s cooperation during investigation and
trial.76 Accordingly, the Supreme Court Chamber evaluated the facts anew and
decided that the mitigating factors did not outweigh the aggravating ones. As a
consequence, it imposed life imprisonment by considering the need for (world-
wide) deterrence, victims’ expectation of justice and the impact that the crimes of
Kaing Guek Eav still have on the Cambodian people.77 Considering that appellate
bodies of other international(ised) tribunals are usually extremely cautious in
interfering in the Trial Chamber’s exercise of discretion in imposing sentence,78 it
73See Decision on personal jurisdiction and investigative policy regarding suspect
(003/07-09-2009-ECCC-D48 and D49), Co-Investigating Judge, 2 May 2012, in which the inter-
national Reserve Co-Investigating Judge (alone) determined that two suspects are falling within
the category of ‘the most responsible’ persons and should be subject of an investigation. see also
on Case 003: http://www.eccc.gov.kh/en/case/topic/286 (visited 15 June 2015).
74Duch Appeal Judgment, supra note 2, §§ 342–351. With respect to the legal basis for appli-
cable sentencing principles, the Supreme Court Chamber explained that a specific provision of
Cambodian law even prohibits the ECCC from applying sentencing principles laid down in the
2009 Criminal Code (Articles 668(2) and (3)) provides: ‘In the event of conflict between the
criminal legislation and criminal provisions and the provisions of this Code, the provisions of
Book I (General Provisions) of this Code shall prevail. (3) The provisions of para 668(2) above
shall not be applicable to special criminal legislation.’).
75Duch Appeal Judgment, supra note 2, §§ 354, 363–383.
76Duch Appeal Judgment, supra note 2, § 363–373.
78Staker and Eckelmans 2015, at 64–68.
seems that the Supreme Court Chamber applied again a standard of review slightly
different from that of those courts. Considering the few pages in which it dis-
cussed the “legal errors” of the Trial Chamber in weighing mitigating factors, the
Supreme Court Chamber did not establish a single factor that the Trial Chamber
had omitted to consider. It therefore arguably rather disagreed with the Trial
Chamber’s assessments. It held for example, in respect of Kaing Guek Eav’s coop-
eration during the trial proceedings, that “[i[n sum, after having reviewed the total-
ity of KAING Guek Eav’s conduct during the proceedings before the ECCC, it is
not satisfied that his cooperation provided substantial information, either in terms
of quantity or quality.” The main argument for overturning the Trial Chamber’s
findings seems to be summarised in the following statement: “the outstanding
aggravating elements and exceptional magnitude of the crimes […] neutralise the
limited impact of these mitigating factors”. This finding shows that the Supreme
Court Chamber’s weighing of the aggravating and the mitigating circumstances
was important for holding that the Trial Chamber erred. Further, the Supreme
Court Chamber found that the Trial Chamber “failed to discuss, and therefore pre-
sumably did not attach any weight to, relevant Cambodian and international law
that permits life imprisonment notwithstanding mitigating factors.”79
The Co-Prosecutors requested the Supreme Court Chamber that as compensa-
tion that needed to be awarded to the convicted person, the sentence of life-impris-
onment be reduced to 45 years. The Supreme Court Chamber, however, went
beyond the relief requested by the Co-Prosecutors and reversed by super-majority
the Trial Chamber’s finding to grant Kaing Guek Eav a reduction of five years’
imprisonment as an appropriate remedy for more than eight years of illegal deten-
tion in the Cambodian Military Prison.80
The question at issue was whether Kaing Guek Eav’s period of illegal detention
in the Cambodian Military prison was attributable to the ECCC, which would
therefore have to grant compensation in form of a reduction of the sentence. The
super-majority’s reasoning draws on the Trial Chamber’s finding that the ECCC is
not a domestic court but rather a separately constituted, independent and interna-
tionalised court.81 However, they found, contrary to the Trial Chamber’s conclu-
sions, that the ECCC was not directly responsible for the illegal detention and held
that the human rights violations suffered at the hands of the Cambodian authorities

80Duch Appeal Judgment, supra note 2, §§ 389–399; Duch Trial Judgment, supra note 3, §§
623–627. Both Chambers decided that the period of illegal detention needed to be deducted from
the finally imposed sentence. The issue was whether an additional effective remedy should be in
place as compensation for illegal detention.
81See Decision on Request for Release, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E39/5),
Trial Chamber, 15 June 2009, §§ 10–13, see also Decision on IENG Sary's Application
to Disqualify Judge NIL Nonn and Related Requests, Nuon Chea and others
(002/19-09-2007/ECCC-E5/3), Trial Chamber, 28 January 2011, § 14; see also Ruling on
Defence Request for Redaction of Some Parts of Co-Prosecutor’s Response to Appeal Brief,
Kaing Guek Eav (Duch) (001/18-07/2007-ECCC-C5/46), Pre-Trial Chamber, 6 December 2007,
§§ 18, 19.
174 F.C. Eckelmans
were not attributable to the ECCC and could not lead to compensation (or other
remedies for abuse of process).82 The two dissenting Judges held differently and
viewed the ECCC as “a domestic court in key respects”.83 They found the ECCC
to be “highly integrated” into the existing court structure of Cambodia. For that
reason—but also because of the strong nexus between the case before the ECCC
and the charges before the Military Court, as well as because of the extreme grav-
ity of the deprivation of liberty by international standards—they found that the
ECCC should have granted a remedy to Kaing Guek Eav by commuting the life
sentence to 30 years imprisonment.84
This finding shows again that the Supreme Court Chamber has assumed a broad
scope of appellate review also with respect to sentencing. While it found, in
essence, that the sentence was disproportionate and decided to determine the sen-
tence anew, it essentially reviewed the separate decision to grant compensation
that the Trial Chamber had rendered a year before the Trial Chamber Judgment
was delivered85 although it was not subject to an appeal by any of the parties in
the final appeal proceedings (e.g. as a procedural error).86 In addition, although it
could have been appealed by way of an immediate interlocutory appeal, this sepa-
rate decision on compensation had not been appealed at that time. It should be
noted that the Trial Chamber had not laid down in this interlocutory decision how
it would award compensation. It determined this only in the Trial Judgment and
held that compensation was by way of affording the convicted person a reduction
of the sentence by 5 years (from 35 years). However, the Supreme Court Chamber
did not address whether the decision to award compensation was on appeal, but
focused in the Appeal Judgment (and the dissent) solely on the character of the
ECCC and whether the ECCC could be held responsible for the illegal detention.
Turning to the importance of the decision on compensation for the character of the
ECCC, it needs to be stressed that, time and again, the ECCC have clearly drawn a line

83Duch Appeal Judgment, supra note 2, Partially dissenting joint opinion, 325, § 6.
84Duch Appeal Judgment, supra note 2, Partially dissenting joint opinion, §§ 8–20.
85Decision on the Request for Release (001/18-07-2007-ECCC/TC-E39/5), 15 June 2009,
15, where it was held: ‘Declares that the Accused, under international law and the law of the
Kingdom of Cambodia, is entitled to a remedy for the time spent in detention under the authority
of the Military Court and the violation of his rights; […] Reserves the question of the nature and
extent of the additional remedy in consequence of the violation of his rights to the Chamber’s
determination of sentence, if applicable.’ (emphasis added).
86See Internal Rule 104 (4).
between their Chambers and the Cambodian legal system, including Cambodian laws,87
and considered themselves in essence as a “self-contained unit”.88 In the positive, this
assures independence and impartiality from domestic influences as well as reliance on
internationally tested norms instead of on a domestic legal system that was based on
laws that had been promulgated shortly before or after the ECCC was created. In the
negative, this leads to the non-recognition of Cambodian human rights violations, as in
the Appeals Judgment,89 questions of legitimacy,90 and a limited impact on the rule of
law development in Cambodia.91 Any related issues will likely be resolved in future in
accordance with this underlying theme, i.e. by distancing the ECCC from the
Cambodian political and legal system and closing the resulting gap by applying interna-
tional criminal courts’ laws and jurisprudence.
7.4.5 Reparations
Civil parties have a limited right to appeal the Trial Chamber’s Judgment.92
Some civil party groups brought appeals by choosing an incorrect procedure to
87See on the legitimacy of the ECCC Internal Rules: Partially Dissenting Opinion of Judge
Noguchi, Decision on Immediate Appeal by KHIEU Samphan on Application for Release,
Nuon Chea and others (002/19–09–2007/ECCC–E50/3/1/4.1), 23 June 2011, § 6; Decision
on NUON Chea’s Preliminary Objection alleging the unconstitutional character of the ECCC
Internal Rules, Nuon Chea and others (002/19–09–2007/ECCC-E51/14), Trial Chamber,
8 August 2011; Decision on NUON Chea’s Appeal Against Order Refusing Request for
Annulment, Nuon Chea and others (002/19–09–2007/ECCC-D55/1/8), 26 August 2008, § 14;
see also Decision on IENG Sary’s Appeal Against the Closing Order, Nuon Chea and others
(002/19–09–2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, §§ 215–221.
88Special Tribunal for Lebanon, Decision on Appeal of Pre-trial Judge’s Order Regarding
Jurisdiction and Standing, Appeals Chamber, 10 November 2010 (CH/AC/2010/02), § 41,

explaining that international courts (such as the Special Tribunal for Lebanon) are not part of a
‘judicial system’ but are ‘self-contained units’.
89Contrary to the Duch Appeal Judgment (supra note 2, § 391), Article 9(5) read with Article
2(3)(a) International Covenant on Civil and Political Rights (ICCPR) should be held applicable
in Cambodia pursuant to Article 31 Constitution of the Kingdom of Cambodia (1993). The appli-
cation of this provision would provide Cambodians with an effective right to compensation for
illegal detention.
90See supra note 78.
91See Eckelmans 2012, at 470.
92See Internal Rule 104 (4).
176 F.C. Eckelmans
appeal.93 Instead of dismissing the appeals the Supreme Court Chamber directed
them to the correct procedure.94 Furthermore, the Supreme Court Chamber
decided to hear those of the civil parties who the Trial Chamber had found not to
be victims of the crimes for which Kaing Guek Eav had been convicted. While it
held that the Trial Chamber did not err in distinguishing between civil party sta-
tus during trial and a decision as to whether the civil parties were indeed victims
of the crimes (and therefore had a right to reparations), it held that during trial
the “legal framework […] was patently obscure”. Accordingly, it allowed the
civil parties to submit additional evidence on this issue regardless of whether
this evidence had been available during trial. It also reconsidered their status.95
As a result, and after discussing the standard of proof applied by the Trial
Chamber in that regard,96 it recognised another ten civil parties as victims of the
crimes committed by the convicted person.97
While originally stemming from Cambodian law,98 the ECCC reparation
regime differs substantially from the Cambodian system that does not know of
“collective and moral” reparations.99 Accordingly, in its analysis, the Supreme
93Internal Rule 105 (1) (c) (Revision 5) reads: ‘The Civil Parties may appeal the decision on
reparations. Where the Co-Prosecutors have appealed, the Civil Parties may appeal the ver-
dict. They may not appeal the sentence.’; Decision on Characterisation of Group 1—Civil
Party Co-Lawyers’ Immediate Appeal of Civil Party Status Determinations in the Trial
Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F8/1), Supreme Court Chamber, 30
September 2010; Group 1—Civil Parties’ Co-Lawyers’ Immediate Appeal of Civil Party Status
Determinations from the Final Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F8),
Civil Parties, 16 September 2010; Notice of Appeal of Co-Lawyers for Civil Parties (Group 2),
Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E188/6), Civil Parties, 24 August 2010; Appeal
Against Rejection of Civil Party Applicants in the Judgment—Co-Lawyers for Civil Parties—
Group 2, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F11), Civil Parties, 22 October
2010; Notice of Appeal by the Co-Lawyers for Civil Party Group 3, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-E188/4), Civil Parties, 20 August 2010; Appeal of the Co-Lawyers
for the Group 3 Civil Parties against the Judgment of 26 July 2010, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-F9), Civil Parties, 6 October 2010; Supplemental Submissions
Concerning Reparations, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F25), Civil Parties, 25
March 2011.
94Decision on Characterisation of Group 1—Civil Party Co-Lawyers’ Immediate Appeal
of Civil Party Status Determinations in the Trial Judgment, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-F8/1), Supreme Court Chamber, 30 September 2010.
98Duch Appeal Judgment, supra note 2, §§ 642–644; see on the history, Boyle 2006, at 307–313;
see also Articles 13 and 14 Code of Criminal Procedure (2007).

99Internal Rule 23(11) (Revisions 1–4) established that, ‘the Chambers may award only collec-
tive and moral reparations to Civil Parties’ (see ECCC IR Rule 23(1)(b) (Revisions 5–8); Article
14 Code of Criminal Procedure (2007) provides that an ‘injury can be compensated by paying
damages, by giving back to the victim the property that has been lost or by restoring damages or
destroyed property to its original state’.
Court Chamber greatly relied on international human rights jurisprudence and also
referred to comparative research into different legal systems, including interna-
tional criminal courts.100 The Supreme Court Chamber confirmed largely the Trial
Chamber’s approach to reparations but admonished the Trial Chamber for provid-
ing too little reasoning, remedying this however in the Appeal Judgment.101 Both
Chambers determined that reparations can exclusively be ordered against the con-
victed person, cannot require the involvement of third parties (including the
Cambodian government), and cannot be ordered against persons who are appar-
ently indigent.102 As a result, no reparation order was issued against the convicted
person, but the measures taken by the Trial Chamber, especially the compilation
and publication of apologetic statements were held to amount to collective and
moral reparations.103 Accordingly the same Judges who had agreed to include the
civil party and reparation schemes in the ECCC Internal Rules in 2007, found the
very same schemes to be ineffective, merely a couple of years later.104 Upon a
thorough review of the ECCC Internal Rules in 2010,105 civil parties were allowed
to participate in future trials (i.e. Case 002 etc.) as part of a “single, consolidated
group”.106 In practice this meant that even when charges were severed in Case
002, the constitution of this group did not change.107 In addition, the amendment
provided the possibility for civil parties together with the ECCC Victims Support
100Duch Appeal Judgment, supra note 2, §§ 476–501, 511–534 (civil parties), 641, 645–716
(reparations).
101See § 685 on the specificity of reparation requests. The Supreme Court Chamber held that
rejected civil parties were allowed to provide additional evidence and found that 10 additional
civil parties had a right to reparations, see Duch Appeal Judgment, supra note 2, §§ 522–629.
102It held that the Trial Chamber committed various errors, e.g. that the Trial Chamber violated
the civil parties’ right to a reasoned decision, Duch Appeal Judgment, supra note 2, § 671; see
also Duch Appeal Judgment, supra note 2, §§ 652–668; Duch Trial Judgment, supra note 3, §§
660–665; both Chambers also held (to varying degrees) that reparation requests should be suf-
ficiently specific.
103Duch Appeal Judgment, supra note 2, §§ 672–677, 708–709; Duch Trial Judgment, supra note
3, §§ 667, 668; see also http://www.eccc.gov.kh/en/publication/duch-apology-high-resolution

104The ECCC Internal Rules were adopted on 12 June 2007, see http://www.eccc.gov.kh/sites/
default/files/legal-documents/IR-Eng.pdf (visited 15 June 2015).

105Internal Rules Revisions 5 and 6 at the 6th and 7th plenary sessions respectively.
106Internal Rule 23(3).
107See Severance Order pursuant to Internal Rule 89ter, Nuon Chea and others
(002/19–09–2007/ECCC-E124), Trial Chamber, 22 September 2011, § 8; similarly, the proceed-

ings against Ieng Thirith were preliminarily stayed without effects on the civil party group.
178 F.C. Eckelmans
Section to initiate projects financed by third parties that would amount to collec-
tive and moral reparations.108 Those projects could receive the blessing of the
Chamber if there was a conviction.109
7.5 Conclusion
It is noteworthy that the four Cambodian and three international Judges of the
Supreme Court Chamber were able to find a common voice on most issues and
thus achieved the necessary super-majority on all matters.110 The Supreme Court
Chamber therefore was able to settle certain issues relevant to the applicable law,
such as in the areas of cumulative convictions, sentencing and reparations. Further,
some of the definitions of the underlying offences of crimes against humanity as
applicable in the 1970s have been thoroughly addressed. Beyond that, the
Supreme Court Chamber carefully delineated its approach to the principle of
legality.
Remarkable is the scope of review applied by the Supreme Court Chamber,
triggered apparently partly by a very limited Defence appeal and the will to set-
tle its approach to numerous issues that the Supreme Court Chamber apparently
found to be of significance, perhaps foremost for subsequent cases. If it had
focused on the alleged errors in a way similar to other international(ised) tribu-
nals, the Appeal Judgment would arguably have been rather short. It is highly
unlikely that it will apply a similarly broad and time-intensive scope of review
in subsequent appeal judgments. Be it mentioned in that context that, in the cur-
rently pending appeal proceedings in Case 002/01, one of the convicted persons
has raised more than 200 grounds of appeal.
The Appeal Judgment adds food for thought about the system of international
criminal justice too. Both, the Trial and Supreme Court Chambers’ findings on
civil parties and reparations will be important to the further moulding of reparation
proceedings following criminal trials.111 Further, when establishing similar tribu-
108See Internal Rule 23quinquies.

109See Internal Rule 23quinquies(3); see also Initial specification of the substance of the awards
that the Civil Party Lead Co-lawyers intend to seek—Hearing of 19 October 2011, Nuon Chea
and others (002/19-09-2007-ECCC-E125/2), Civil Parties, 12 March 2012; see Judgment, Nuon
Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August 2014, at 597–622.
110See Article 14new(1)(b) ECCC Law.
111See for the most recent judgments on reparations: Judgement, Nuon Chea and others
(002/19-09-2007/ECCC-E313), Trial Chamber, 7 August 2014, at 597–622; see also Prosecutor

v. Thomas Lubanga Dyilo, Judgment on the appeal against the “Decision establishing the prin-
ciples and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for
reparations (Annex A), ICC Appeals Chamber, 3 March 2015.
nals and envisaging their character, the ECCC’s approach to its character will need
to be thoroughly considered. It will depend on the goals of any such institution
and the domestic political and legal system, whether it is advisable to create a
“self-contained unit” or a more integrated special Chamber, however, it should
ideally be determined from the start which way to follow, instead of leaving the
resolution of such uncertainties to the jurisprudence.
References
Boyle D (2006) The Rights of Victims. Journal of International Criminal Justice 4:307–313
Eckelmans F (2012) The ECCC in the context of Cambodian Law. In: Hor P, Kong P, Menzel J
(eds) Introduction to Cambodian Law. Konrad Adenauer Stiftung, Phnom Penh, pp 459–461
Morrison S (2009) Extraordinary Language in the Courts of Cambodia: Interpreting the limiting
language and personal jurisdiction of the Cambodian Tribunal, Capital University Law Review
37:583–629
Staker C, Eckelmans F (2015) Article 81. In: Triffterer O (ed) A Commentary to the Rome
Statute, Article by Article, 3rd edn, Oxford University Press, Oxford
Chapter 8
The Case 002/01 Trial Judgment: A
Stepping Stone from Nuremberg to the
Present?
Russell Hopkins
Abstract This chapter offers a summary and assessment of the Case 002/01

Trial Judgment, which was issued on 7 August 2014. The chapter focuses on the
modern jurisprudential relevance of the Case 02/01 Trial Judgment. It provides
an overview of the Trial Chamber’s factual findings then highlights aspects of
the Judgment which might be viewed as jurisprudential stepping stones from the
International Military Tribunal at Nuremberg to more recent courts and tribunals.
Keywords Factual findings · Modes of liability · Aiding and abetting · Superior

responsibility · Crimes against humanity · Extermination · Persecution · Inhumane
acts · Individual criminal responsibility · Reparations · Civil parties
Contents
8.1 Introduction.......................................................................................................................... 182
8.2 Factual Findings................................................................................................................... 184
8.3 Jurisprudential Stepping Stones: Modes of Liability........................................................... 188
8.3.1 Joint Criminal Enterprise (JCE)................................................................................. 188
8.3.2 Aiding and Abetting................................................................................................... 190
8.3.3 Superior Responsibility.............................................................................................. 191
The author is Legal Advisor to the Cambodian judges of the Trial Chamber of the ECCC, a role
funded by the Federal Republic of Germany. Any views expressed are the author’s alone. They
should not be attributed to the ECCC, the Federal Republic of Germany or to anybody else.
R. Hopkins (*)
Extraordinary Chambers in the Courts of Cambodia (ECCC), Phnom Penh, Cambodia
e-mail: hopkins.russell@gmail.com

DOI 10.1007/978-94-6265-105-0_8
182 R. Hopkins
8.4 Jurisprudential Stepping Stones: Threshold Requirements

of Crimes Against Humanity............................................................................................... 192
8.5 Jurisprudential Stepping Stones: Elements
of Specific Crimes Against Humanity.................................................................................. 195
8.5.1 The Mens Rea for Murder and/or Extermination...................................................... 196
8.5.2 The Contours of Persecution on Political Grounds.................................................... 196
8.5.3 Inhumane Acts as a Residual Category of Crimes Against Humanity....................... 197
8.6 Civil Party Reparations........................................................................................................ 199
8.7 The Significance of the Case 002/01 Trial Judgment.......................................................... 200
References................................................................................................................................... 201
8.1 Introduction
At about 10.20 am on the morning of Thursday 7 August 2014, the Cambodian

presiding judge of the Trial Chamber of the Extraordinary Chambers in the Courts
of Cambodia (ECCC) asked two elderly former senior leaders of the Khmer
Rouge to stand in order to receive the verdict on their responsibility for crimes
committed in Cambodia between 17 April 1975 and December 1977.1 Nuon Chea,
the former Deputy Secretary of the Communist Party of Kampuchea (CPK), now
88 years old and wearing dark glasses, remained seated in his wheelchair. He said
that he was unable to stand.2 Khieu Samphan, the former head of what became the
state of Democratic Kampuchea, now 83 years old, stood up, holding onto the
dock with his left hand for support. Judge Nil Nonn announced that the Trial
Chamber had found them guilty of crimes against humanity and sentenced both to
life imprisonment.
This verdict was undoubtedly a significant moment in the ECCC’s precarious
existence. Judge Nil Nonn summarised the Trial Chamber’s judgment in Khmer to
a packed courtroom and public gallery at the ECCC’s premises on the outskirts of
Phnom Penh, close to the scene of some of the crimes that he explained had been
proven. The case is referred to as ‘Case 002/01’, a cumbersome-when-spoken dig-
ital identifier that is perhaps suggestive of the ECCC’s prior ambitions to (a) try
numerous accused; and (b) hold numerous successive trials of the same accused
following the severance of Case 002.
Case 002/01 concerned Nuon Chea and Khieu Samphan’s responsibility for
three groups of events: firstly, crimes committed on 17 April 1975 and subsequent
days when Khmer Rouge forces took control of Phnom Penh and emptied the city
of its two million inhabitants; secondly, crimes committed during further popu-
lation displacements between September 1975 and December 1977; and thirdly,
executions of soldiers and officials from the previous Cambodian government
1See Transcript, E1/241.1, 7 August 2014, at 35.

2The Transcript records that although Nuon Chea’s microphone was not activated, the presiding
judge understood Nuon Chea to say that he could not stand due to his age and health problems.
Victor Koppe, one of Nuon Chea’s lawyers, asserted at a public forum held in Phnom Penh on 13
August 2014 that Nuon Chea had refused to stand as a way of protest.
8 The Case 002/01 Trial Judgment: A Stepping Stone … 183
committed by Khmer Rouge forces at Tuol Po Chrey, near the town of Pursat
(which is located northwest of Phnom Penh), shortly after 17 April 1975.
The trial of Case 002/01 started in 2011. It originally included two further
accused: wife and husband Ieng Thirith, former Minister of Social Affairs, and
Ieng Sary, former Foreign Minister. But Ieng Thirith was found unfit to be tried
and Ieng Sary died during the trial. Those developments caused considerable
delays to the proceedings and highlight the inherent difficulties when launching
multi-accused trials with several elderly defendants.3 At times, the ECCC has tee-
tered on the edge of collapse, beset by funding crises, a difficult (some say
unworkable) hybrid structure—which includes an institutional divide between
Cambodian and international parts of the court—and serious allegations of politi-
cal interference and corruption. Any ambitions to try large numbers of accused
and/or hold numerous successive trials of the same accused have seemingly dwin-
dled. Some argue that the ECCC risks being a blemish on the international crimi-
nal justice project; an example of how not to structure a tribunal.4
This chapter offers a summary and assessment of the Case 002/01 Trial
Judgment. It cannot cover every aspect: the Case 002/01 Trial Judgment is over
600 pages long. It does not seek to contend that the Case 002/01 Trial Judgment
vindicates the ECCC. Nor does it explore the institutional and structural lessons
which the ECCC might hold for those contemplating hybrid alternatives to the
International Criminal Court (ICC) in the future. It avoids the important topic of
the ECCC’s legacy to Cambodia’s legal system and society. Instead, this chapter’s
focus is the modern jurisprudential relevance of the Case 002/01 Trial Judgment.
Whereas the Nuremberg and Tokyo trials after the Second World War are usually
identified as marking the beginning of modern international criminal law, the Cold
War stalled its development until the mid-1990s and the creation of ad hoc tribu-
nals for the former Yugoslavia and Rwanda.5 The ECCC is a more recent creation
than the ad hoc tribunals, but it adjudicates upon events from the 1970s with the
consequence that, in order to determine leaders’ responsibilities for atrocities, the
Case 002/01 Trial Judgment had to identify and apply the law as it then stood.6
This chapter therefore evaluates aspects of the Case 002/01 Trial Judgment
which might be viewed as jurisprudential stepping stones from the International
Military Tribunal at Nuremberg and, to a lesser extent Tokyo, to more recent
3On the difficulties of trying elderly accused, see Phillips, Chapter 17 in this Volume.
4See Ciorciari and Heindel 2014.
5Dugard 2007, at xiii.
6See Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August
2014, § 16 (hereafter Case 002/01 Trial Judgment): ‘Both the Cambodian and international prin-
ciples of legality, connected with the general principles of nulla poena sine lege (no penalty with-
out law) and nullum crimen sine lege (no crime without law), require that the law concerning
crimes and modes of criminal liability be clear, ascertainable and non-retrospective. Thus, in the
specific context of the ECCC, the principle of legality requires that the offences and modes of
responsibility charged must be recognised under Cambodian or international law as it existed
between 17 April 1975 and 6 January 1979, and sufficiently foreseeable and accessible to the
Accused.’ (Internal footnotes omitted.)
184 R. Hopkins
courts and tribunals. The chapter is structured as follows. Section 8.2 provides a

brief summary of the Case 002/01 Trial Judgment’s factual findings. Section 8.3
considers the Case 002/01 Trial Judgment’s approach to a selection of modes of
liability. Section 8.4 addresses the approach to certain threshold elements appli-
cable to crimes against humanity. Section 8.5 highlights certain specific crimes
against humanity. Section 8.6 evaluates the Trial Chamber’s approach to civil party
reparations. Section 8.7 offers some concluding thoughts on the overall signifi-
cance of the Case 002/01 Trial Judgment.
8.2 Factual Findings
The Trial Chamber found that, from June 1974 at the latest, a joint criminal enter-
prise (JCE) existed the purpose of which was to implement rapid socialist revolu-
tion through a ‘great leap forward’ using whatever means were necessary.7 The
revolutionaries are often referred to as the Khmer Rouge, a term coined by
Cambodia’s former monarch, Norodom Sihanouk, to refer to the communist party
in Cambodia—but which members of the CPK did not actually use to describe
themselves.8 The name stuck nonetheless. Although the goal of a socialist revolu-
tion is obviously not a crime in itself, the Trial Chamber concluded that certain
policies formulated by the Khmer Rouge involved the commission of crimes as the
means to bring the common plan to fruition.9 These included: (a) a policy to forci-
bly move people from urban to rural areas, as well as from one rural area to
another; and (b) a policy to target officials of the former Khmer Republic, headed
by Marshal Lon Nol who deposed Norodom Sihanouk in March 1970.10
On 17 April 1975, Khmer Rouge forces entered Phnom Penh and forced at least
two million people to leave.11 People were also displaced from towns and cities
throughout Cambodia. The Trial Chamber found that these forced transfers were
the CPK leadership’s top priority and that the leadership believed that by evacuat-
ing urban areas they would preserve the revolution and vanquish capitalist and feu-
dalist classes.12 The Trial Chamber further found that after towns and cities were
evacuated, from September 1975, at least 300,000 to 400,000 people were moved
again within Cambodia in order to allocate resources based on labour require-
ments and production targets.13 These forced population movements were carried
7Case 002/01 Trial Judgment, supra note 6, § 777.

8Ibid., § 85.
9Ibid., §§ 778, 804.
10Ibid., § 723.
11Ibid., § 170.
12Ibid., § 788.
13Ibid., §§ 630–631, 795.
out under inhumane conditions which led to many deaths. The Trial Chamber
rejected justifications advanced for the evacuation of Phnom Penh, such as claims
that the United States might bomb the city or that the shortage of food supplies
demanded such a step.14 The Trial Chamber concluded that the evacuation of
Phnom Penh was unnecessary and disproportionate and formed part of a consist-
ent pattern of urban evacuations for military, economic and ideological reasons so
that the CPK’s leadership could exert control over the population.15 The Trial
Chamber also rejected justifications for subsequent population movements within
Cambodia, in particular finding that the catastrophic humanitarian situation at the
time resulted from the CPK’s own actions16 and that the forced movements were
neither necessary nor proportionate.17
The Trial Chamber further found that in the days after the Khmer Rouge’s vic-
tory, Khmer Republic officials were targeted for execution, arrest and detention
throughout the newly liberated areas of Cambodia.18 At least 250 former Khmer
Republic officials were executed at Tuol Po Chrey and this execution policy was
expressly ordered by the CPK’s leadership during the final offensive on Phnom
Penh, affirmed thereafter and continued throughout Cambodia.19
The Trial Chamber concluded that by 17 April 1975 and continuing until at
least December 1977, there was a widespread and systematic attack against
Cambodia’s civilian population which victimised millions of civilians.20 The fol-
lowing crimes against humanity were established in relation to the evacuation of
Phnom Penh in April 1975:
• murder and extermination of (a) those shot and killed, except those who died while
engaged in combat, and (b) the innumerable numbers of victims who died along
the way as a result of the failure by Khmer Rouge soldiers to provide assistance;21
• other inhumane acts of (a) forced transfer,22 and (b) attacks against human dig-
nity because of the violent circumstances surrounding the evacuation and the
severity of the conditions experienced by the evacuees;23 and
• political persecution in the form of murder, extermination, arrests and other
inhumane acts of forced transfer and attacks against human dignity variously
committed against former Khmer Republic officials and city people.24
14Ibid., §§ 525, 790.

15Ibid., § 534, 794.
16Ibid., § 634.
17Ibid., §§ 635, 799.
18Ibid., § 172.
19Ibid., §§ 172, 681, 817.
20Ibid., § 193.
21Ibid., § 554, 556.
22Ibid., § 552.
23Ibid., § 565.
24Ibid., § 574.
186 R. Hopkins
In relation to subsequent population movements between September 1975 and

December 1977, the following crimes against humanity were established:
• extermination of those who died as a result of the conditions during population
transfers;25
• other inhumane acts of (a) forced transfer,26 (b) enforced disappearances27 and
(c) attacks against human dignity;28 and
• political persecution by way of the discriminatory treatment of ‘New People’29
by the inhumane acts of forced transfer and enforced disappearances.30
In relation to events at Tuol Po Chrey approximately one week after 17 April
1975, the following crimes against humanity were established:
• murder and extermination of a minimum of 250 Lon Nol officials;31 and
• political persecution in the form of murder and extermination of former Lon
Nol soldiers and former civilian officials.32
The Trial Chamber convicted both Nuon Chea and Khieu Samphan on the basis of
their participation in the JCE. It concluded, however, that the indictment (the
‘Closing Order’) issued by the Co-Investigating Judges only charged JCE in rela-
tion to some of the above crimes, whereas other modes of liability were charged
comprehensively. The result is that the Trial Chamber considered JCE to be an
available mode of liability for some crimes but not for others.33 In relation to
crimes where JCE was not charged, the Trial Chamber found that Nuon Chea and
Khieu Samphan planned, instigated and aided and abetted those crimes.
Additionally, in relation to Nuon Chea the Trial Chamber concluded that he
(a) ordered the crimes34 and (b) exercised effective control over the Khmer Rouge
25Ibid., §§ 646–648.
26Ibid., § 630.
27Ibid., § 640.
28Ibid., § 644.
29The Trial Chamber found that the CPK identified ‘New People’ as including former govern-
ment officials, intellectuals, landowners, capitalists, feudalists and the petty bourgeoisie—they
were ‘key enemies of the revolution and collectivisation’: Ibid., §§ 169, 195.
30Ibid., § 657.
31Ibid., §§ 683–684.
32Ibid., § 685.
33The Trial Chamber concluded that JCE was charged in relation to: murder, political perse-
cution and other inhumane acts (forced transfer and attacks against human dignity) in relation
to the evacuation of Phnom Penh in April 1975; political persecution and other inhumane acts
(forced transfer and attacks on human dignity) during subsequent population movements from
September 1975 onwards; and murder and extermination at Tuol Po Chrey in April 1975.
34Case 002/01 Trial Judgment, supra note 7, § 886 (in relation to the evacuation of Phnom
Penh); § 907 (in relation to subsequent population movements); and § 925 (in relation to Tuol Po
Chrey).
cadres such that he was responsible on the basis of superior responsibility, albeit
the Trial Chamber found that it could only consider his superior position in rela-
tion to sentencing.35
There were some further twists in the relationship between the Trial Chamber’s
findings and the pleading of the Closing Order. First, the Trial Chamber concluded
that the murders during the evacuation of Phnom Penh (in relation to which JCE
was charged) were subsumed by extermination (in relation to which JCE was not
charged). Therefore, Nuon Chea and Khieu Samphan were ultimately convicted
of planning, instigating and aiding and abetting extermination during the evacu-
ation of Phnom Penh, rather than committing (via JCE) extermination or murder.
Secondly, the Trial Chamber concluded that the Closing Order charged JCE in
relation to political persecution including by means of murder (in the case of the
evacuation of Phnom Penh) and extermination (in relation to both the evacuation
of Phnom Penh and subsequent population movements after September 1975). The
result is that Nuon Chea and Khieu Samphan were convicted of committing (via
JCE) political persecution by means of murder and extermination, among others,
but JCE convictions were not entered in relation to those underlying crimes. By
contrast, whereas Trial Chamber concluded that JCE was available in relation to
murder and extermination at Tuol Po Chrey, it concluded that JCE was not avail-
able in relation to the crime of political persecution, including by means of murder
and extermination. The resulting mixture of modes of liabilities and crimes in rela-
tion to the same underlying events can make the factual and legal findings in the
Case 002/01 Trial Judgment quite difficult to follow at first.
In contrast to Nuon Chea, although Khieu Samphan possessed an array of titles,
was a member of various important bodies within the CPK and Democratic
Kampuchea and influenced events, the Trial Chamber was not satisfied that he had
sufficient authority to issue orders or exercise effective control over the perpetra-
tors of crimes.36 The Case 002/01 Trial Judgment therefore distinguished between
the overall culpability of Nuon Chea and Khieu Samphan. The Trial Chamber con-
cluded that whereas Nuon Chea’s involvement in the crimes was ‘pivotal, exten-
sive and significant’37 and found him to be criminally responsible on additional
bases, Khieu Samphan’s involvement in the crimes was ‘extensive and substan-
tial’.38 Nevertheless, when it came to sentencing the Trial Chamber considered
various aggravating and mitigating facts and concluded that it could not sentence
Khieu Samphan to anything less than a life sentence, the same sentence imposed
upon Nuon Chea.
35See ibid., § 941.

36Ibid., §§ 1006, 1007, 1018.
37Ibid., § 1079.
38Ibid., § 1080.
188 R. Hopkins
8.3 Jurisprudential Stepping Stones: Modes of Liability
8.3.1 Joint Criminal Enterprise (JCE)
As is well-known, in the Tadić case the ICTY Appeals Chamber held that JCE
existed in customary international law as of 1992. The ICTY Appeals Chamber
relied on post-World War II cases and some pre-1975 international and domestic
precedents. As articulated by the ICTY Appeals Chamber, JCE comprises three
categories: a basic category, where all participants act pursuant to a common pur-
pose and share the same criminal intent; a systemic category, referring to instances
of ill-treatment in organized institutions such as concentration camps; and the
extended category, where participants agree on a common purpose involving the
perpetration of crime(s) and are liable for criminal acts which, although outside
the scope of the common purpose, were nevertheless natural and foreseeable con-
sequences of effecting that common purpose.
The ECCC is perhaps best-known for having rejected the extended category of
JCE. The Case 002/01 Trial Judgment affirmed that rejection, but it is worth sum-
marizing the position. In December 2009, the Co-Investigating Judges ordered that
all three forms of JCE, including the extended form, were applicable before the
ECCC.39 In May 2010, however, the Pre-Trial Chamber overturned that order in
part, holding that the extended category of JCE did not exist in customary interna-
tional law or Cambodian law in 1975.40 The Pre-Trial Chamber conducted an
analysis of the basis for JCE III as set out in the Tadić case and concluded that the
analysis was unconvincing. In July 2010, the Trial Chamber issued its judgment in
Case 001, but that case involved only the basic and systemic forms of JCE so the
Trial Chamber considered that it need not ‘pronounce on the customary status of
the third extended form of joint criminal enterprise during the 1975 to 1979
period.’41 In September 2011 in Case 002, however, the Trial Chamber adopted the
Pre-Trial Chamber’s conclusion that the extended category of JCE did not form
part of customary international law and was not a general principle of law at the
39Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal
Enterprise (OCIJ), Nuon Chea and others (002/19-09-2007/ECCC-D97/13), Office of the

Co-Investigating Judges, 8 December 2009.
40Decision on Appeals Against the Co-Investigating Judges’ Order on Joint Criminal Enterprise
(PTC), Nuon Chea and others (002/19-09-2007/ECCC-D97/15/9), Office of the Co-Investigating

Judges, 20 May 2010, §§ 51–89.
2010, § 513.
relevant time.42 The Case 002/01 Trial Judgment therefore applied the basic form
of JCE to a leadership case.43
In relation to the underlying crimes, one sees in the Case 002/01 Trial
Judgment the Trial Chamber repeatedly considering whether the common purpose
‘contemplated and/or involved’44 or ‘contemplated and involved’ the crimes.45 The
Case 002/01 Trial Judgment concluded that the crimes of murder, extermination,
forced transfer, enforced disappearances, attacks against humanity dignity and
political persecution were an inherent part of the common purpose, rather than a
foreseeable consequence of it. The Trial Chamber further required that the JCE
participants ‘must be shown to share the required intent of the direct perpetrators,
including the specific intent for the crime where required, as with persecution.’46
The Co-Prosecutors have appealed the Trial Chamber’s rejection of the
extended form of JCE, contending that it is a question of general significance and
that they will seek to apply it in relation to future charges against Nuon Chea and
Khieu Samphan.47 The Co-Prosecutors argue that there were no developments in
customary international law between 1975 and 1992 to explain different conclu-
sions reached by the ICTY, ICTR, SCSL and STL on the one hand, and the ECCC
on the other hand. The Co-Prosecutors contend that the Supreme Court Chamber
should intervene to harmonize the ‘embryonic system of international criminal
justice’.48 It remains to be seen whether the Supreme Court Chamber will enter-
tain the Co-Prosecutors’ appeal.
For the time being, however, the Case 002/01 Trial Judgment has confirmed a
fault-line in international criminal law as to the customary status of the extended
form of JCE liability. Moreover, the procedural history of this matter provides
ammunition to those who criticize the structure of the ECCC as the same legal
issue will have been litigated before four different panels (the Co-Investigating
Judges, the Pre-Trial Chamber, the Trial Chamber and the Supreme Court
Chamber) before a definitive position might be reached.
42Decision on the Applicability of Joint Criminal Enterprise, Nuon Chea and others
(002/19-09-2007/ECCC-E100/6), Trial Chamber, 12 September 2011.

43During closing arguments, the Co-Prosecutors submitted that JCE II (the systemic category)
should be considered as a mode of responsibility by the Trial Chamber. The Closing Order
(§§1541) had rejected that mode of liability in the following terms: ‘Having taken everything into
consideration, the Co-Investigating Judges consider that the systematic form of JCE (JCE 2) need
not be retained, as the basic form of JCE (JCE1) is that most suited for characterizing the crimi-
nal responsibility of the Charged Persons […]’ The Case 002/01 Trial Judgment relied on JCE I
(the basic category).
44See, for example, Case 002/01 Trial Judgment, supra note 7, §§ 843, 948, 952.
45See, for example, ibid., §§ 879, 880, 900, 902, 918.
46Ibid., § 694.
47Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E313/3/1), Office of the Co-Prosecutors, 29 September 2014.

48Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E313/3/1), Office of the Co-Prosecutors, 29 September 2014, § 9.

190 R. Hopkins
8.3.2 Aiding and Abetting
The Case 002/01 Trial Judgment considered the recent and controversial debate
over the contours of aiding and abetting liability. In February 2013 in the Perišić
case, the ICTY Appeals Chamber held, by majority, that the actus reus of aiding
and abetting requires proof of specific direction in order for assistance to be culpa-
ble.49 The ICTY Appeals Chamber held that, in situations where the actions of an
accused are geographically or temporally remote from a crime, there must be an
explicit consideration of whether acts are specifically directed towards crimes. A
perceived failure by the Trial Chamber to make such findings meant that General
Perišić, Chief of the General Staff of the Yugoslav Army, was acquitted on appeal
of having aided and abetted crimes in Bosnia and Herzegovina.
Later in 2013 in the Taylor case, however, the SCSL Appeals Chamber
reviewed the Perišić Appeal Judgment and various international cases and instru-
ments and held that customary international law does not require specific direction
as an element of the actus reus of aiding and abetting.50 The SCSL Appeals
Chamber therefore affirmed the conviction of the former President of Liberia for
aiding and abetting crimes in Sierra Leone. Most recently, in January 2014 in the
Šainović case, a (partly) differently composed ICTY Appeals Chamber revisited
the question and reversed the approach taken in Perišić.51
The Case 002/01 Trial Judgment described the Šainović judgment as containing
an ‘in-depth review of post-World War II jurisprudence which is of particular rele-
vance to the ECCC context’, in particular case law from British military courts,
French military tribunals, trials conducted under the terms of Control Council Law
No. 10 and the Nuremberg Judgment.52 The Case 002/01 Trial Judgment accepted
the ‘comprehensive surveys of jurisprudence and instruments’ in the Šainović and
Taylor Appeal Judgments and found them to be persuasive and an accurate reflec-
tion of the law as at 1975.53 The Trial Chamber therefore concluded that specific
direction is not an element of aiding and abetting liability under customary inter-
national law and that the actus reus of aiding and abetting instead consists of prac-
tical assistance, encouragement or moral support which has a substantial effect on
the perpetration of the crime.54
Some further aspects of the Trial Chamber’s findings in relation to aiding and
abetting might be highlighted. The Trial Chamber held that Nuremberg-era cases
recognized that an accused may be held criminally liable for an omission which
49Judgment, Perišić (IT-04-81-A), Appeals Chamber, 28 February 2013, § 36.

50Judgment, Taylor (SCSL-03-01-A), Appeals Chamber, 26 September 2013, §§ 368–385.
51Judgment, Šainović (IT-05-87-A), Appeals Chamber, 23 January 2014, §§ 1617–1651.
53Ibid., § 710.
54Ibid., § 709.
assists the commission of a crime55 and that assistance provided after the commis-
sion of a crime can amount to aiding and abetting where an offer of assistance was
made before or during the commission of the crime such as to encourage or sup-
port the perpetrator.56 The Trial Chamber concluded, however, that assistance pro-
vided exclusively after the perpetration of a crime does not satisfy the elements of
aiding and abetting liability.57
On the facts, the Trial Chamber found that Nuon Chea provided encouragement
and moral support before and after the crimes, which had a substantial effect, in
particular by disseminating policies of forced movement and targeting and provid-
ing propaganda materials and training sessions advocating the identification and
elimination of Khmer Republic officials.58 Nuon Chea praised past crimes.59 In
relation to conduct after the fact, the Trial Chamber held that the perpetrators
anticipated and contemplated that NUON Chea would justify, encourage and look
to win further support for them, thereby encouraging them.60 In relation to Khieu
Samphan, the Trial Chamber concluded that he provided practical assistance,
encouragement and moral support to perpetrators in the form of speeches before
and after the crimes.61 Khieu Samphan’s reputation meant that people believed
him when he had said that only a limited number of people (namely seven identi-
fied ‘super traitors’) would be killed which, the Trial Chamber concluded, created
a false sense of security and deceived the urban population and Khmer Republic
officials.62 In relation to Khieu Samphan’s assistance after the fact, the Trial
Chamber concluded that the perpetrators ‘knew, or at least anticipated … that
Khieu Samphan would provide assistance and endorsement after the fact.’63
8.3.3 Superior Responsibility
The Trial Chamber held, confirming the Pre-Trial Chamber’s review of Nuremberg-
era jurisprudence, that the doctrine of superior responsibility existed in customary
international law between 1975 and 1979 and that it applied to both military and
civilian superiors.64 The Trial Chamber further held that the duty incumbent upon
55Ibid., § 706.
56Ibid., § 712.
57Ibid., § 713.
58Ibid., §§ 889–890, 910, 928.
59Ibid., § 889.
60Ibid., § 930.
61Ibid., § 1008.
62Ibid., § 1010.
63See for example Ibid., § 1011 in relation to the evacuation of Phnom Penh and § 1049 in rela-
tion to Tuol Po Chrey.

64Ibid., § 718.
192 R. Hopkins
a superior to act exists in customary international law—there is no prerequisite of

an analogous duty in domestic law.65 The Trial Chamber held that Nuremberg-era
cases establish that a superior’s responsibility is ‘not limited to a control of units
directly under his command’. Therefore, superior responsibility can ensue on the
basis of direct and indirect relationships of subordination.66
On the facts, the Trial Chamber concluded that Nuon Chea exercised effective
control over members of the CPK and the military who committed crimes.67 As to
the level of knowledge required, the Trial Chamber concluded that even if Nuon
Chea did not know about the specific events at a particular location such as Tuol
Po Chrey, his role developing the policy of targeting former Khmer Republic offi-
cials was sufficient to establish that he failed to prevent the crimes perpetrated
there.68 In relation to Khieu Samphan, the Trial Chamber concluded that although
he exerted substantial influence in the CPK, and was nominally commander-in-
chief of the armed forces, the evidence did not demonstrate that he exercised
effective control over those who committed crimes.69
8.4 Jurisprudential Stepping Stones: Threshold

Requirements of Crimes Against Humanity
Four features of the Case 002/01 Trial Judgment’s approach to the threshold
requirements of crimes against humanity are highlighted here: (a) the definition of
‘civilian’ when deciding whether an attack is directed against a ‘civilian popula-
tion’; (b) whether the attack against a civilian population must be carried out on
a discriminatory basis; (c) whether there needs to be a nexus between the attack
and an armed conflict; and (d) whether there needs to be a state or organizational
policy in order to pass the threshold of a crime against humanity.
First, the Nuremberg Charter, the Statutes of the ICTY, ICTR, SCSL and ICC
and much of the international case law refer to a widespread or systematic attack
directed against the ‘civilian population’ as a defining feature of crimes against
humanity. By way of contrast, international law permits widespread and system-
atic attacks directed against military targets, in accordance with humanitarian law,
even if it involves deaths and injuries.70 But how do we decide when an attack is
directed against the ‘civilian population’ as opposed to military targets? Notably,
65Ibid., § 720.
66Ibid., § 720.
67Ibid., §§ 893–898 (in relation to the evacuation of Phnom Penh); 913–917 (in relation to subse-
quent population movements); and 932–937 (in relation to Tuol Po Chrey).

68Ibid., §§ 936, 938.
69See Ibid., §§ 1016–1022.
70See, for example, Cryer et al. 2008, at 241.
following much of the approach in the Case 001 Trial Judgment, the Trial
Chamber concluded that customary international law did not have an established
definition of ‘civilian’ in April 1975.71 Instead, the Trial Chamber placed emphasis
on the ordinary meaning of the term ‘civilian’ as not including members of the
armed forces but including armed law enforcement personnel.72 The Trial
Chamber held that soldiers hors de combat are not ‘civilians’ (but they may never-
theless be victims of crimes against humanity where the overall attack is directed
against the ‘civilian population’).73 This approach accords with the more recent
approach of the ICTY Appeals Chamber, which held that Article 50 of Additional
Protocol I to the 1949 Geneva Conventions reflects customary international law.74
Some have argued that such an interpretation of civilian is too restrictive: it is nar-
rower than the definition applied in some early cases (before Blaškić) at the ICTY
and ICTR.75 On the facts, however, the Case 002/01 Trial Judgment arguably
implied that the debate as to the definition of ‘civilian’ was an academic one
because ‘former Khmer Republic soldiers only formed part of the millions of
civilians attacked.’76
Secondly, it is notable that the founding ECCC Law includes a requirement that
the attack against a civilian population must be carried out on a discriminatory
basis in order for a crime against humanity to be established.77 The ICTR Statute
included a similar requirement,78 although in the Akayesu case the ICTR Appeals
Chamber held that this restriction relates to the context of the attack as whole,
rather than the intentions of the individual perpetrator.79 At the ICTY, the Statute
of which differs from that of the ICTR in this respect, the Appeals Chamber held
that there is no requirement of discrimination in order to establish a crime against
humanity.80 The ICC’s Statute does not include a discriminatory element in the
definition of crimes against humanity.81 Confirming the approach taken in
Case 001, the Case 002/01 Trial Judgment held that the provision in Article 5 of

72Ibid., § 186.
73Ibid., § 187.
Judgment, Kordić and Čerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004, § 97;
74See Judgment, Martić (IT-95-11-A), Appeals Chamber, 8 October 2008, §§ 296–302;
Judgment, Blaškić (IT-95-14), Appeals Chamber, 29 July 2004, § 110. The Additional Protocols
were adopted in 1977 so the Trial Chamber stated that it did not rely on their definition of civil-
ian: see Case 002/01 Trial Judgment, supra note 7, § 185.
75See the discussion in Boas et al. 2007, at 44, in particular the authorities cited at footnote 122.
77Article 5, ECCC Law requires that the acts be ‘committed as part of a widespread or systematic
attack directed against any civilian population, on national, political, ethnical, racial or religious
grounds.’ (emphasis added).
78Article 3 of the ICTR Statute.
79Judgment, Akayesu (ICTR-96-4-A) Appeals Chamber, 1 June 2001, §§ 261–9.
80Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, §§ 282–305.
81See Article 7(1)(h) of the ICC Statute.
194 R. Hopkins
the ECCC law is a jurisdictional requirement particular to the ECCC rather than
an element of crimes against humanity per se, and that it is limited to the broader
attack, rather than introducing a discriminatory element to the underlying crimes
against humanity.82 On the facts, the Trial Chamber concluded that the attack
against the civilian population was carried out on political grounds.83
Thirdly, in relation to the nexus question, the Nuremberg and Tokyo Charters
both required a connection between crimes against humanity and other crimes
(war crimes or crimes against the peace), effectively requiring a nexus to an armed
conflict. By contrast Control Council Law No. 10, which provided the legal basis
for a series of trials before military tribunals run by the occupying powers, as well
as subsequent prosecutions by German courts that continued for several decades,
did not clearly require such a nexus, although the cases tried under that provision
reached different conclusions.84 Various international conventions adopted after
WWII do not appear to require a nexus to an armed conflict in order for a crime
against humanity to be established.85 But the 1993 ICTY Statute (Article 5)
restricted crimes against humanity to those committed in armed conflict, whether
international or national.86 By contrast, the 1994 ICTR Statute (Article 3) did not.
The 1998 Rome Statute (Article 7) did not either. Therefore, while it now seems to
be reasonably well-settled that a crime against humanity can be committed with-
out a nexus to an armed conflict, what was the position in 1975?
The Law on the Establishment of the ECCC does not appear to include a nexus
requirement. In Case 001, the Trial Chamber held that customary international law
in 1975–1979 did not require a nexus between an alleged crime against humanity
and an armed conflict.87 But in Case 002, when considering appeals against the
Closing Order, the Pre-Trial Chamber held that a nexus was required.88 The Trial
Chamber later rejected the Pre-Trial Chamber’s approach and held that a nexus
was not required.89 The Case 002/01 Trial Judgment reiterated that customary

83Ibid.,§ 194.
84See Schabas 2011, at 7 and Heller 2011, at 235.
85See the various sources cited in Boas et al. 2007, footnote 55.
86Notably, however, the Tadić Appeal Judgment held obiter that crimes against humanity could
be committed in peacetime and that the armed nexus required by the ICTY Statute was a devia-
tion from customary international law (§§ 282–288).
2010, §§ 291–292. This finding was not challenged this on appeal.

88See the reasoning in Decision on Ieng Thirith and Nuon Chea’s Appeal against the Closing
Order (PTC), Nuon Chea and others (002/19-09-2007/ECCC-D427/2/15), 15 February 2011,

§ 145; and Decision on Ieng Sary’s Appeal against the Closing Order (PTC), Nuon Chea and
others (002/19-09-2007/ECCC-D427/1/30), 11 April 2011, § 204.
89Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement from the
Definition of Crimes against Humanity, Nuon Chea and others (002/19-09-2007/ECCC-E95/8),

26 October 2011, § 33.
international law in 1975 did not require a nexus to armed conflict.90 This was a
significant legal finding because the Trial Chamber concluded that, on the facts,
the armed conflict between the Khmer Republic and the Khmer Rouge ended on
17 April 1975 when the Khmer Rouge captured Phnom Penh and the Khmer
Republic forces surrendered.91
Turning fourthly to the question of state or organizational policy, the Trial
Chamber rejected submissions that customary international law requires the exist-
ence of a state or organizational plan or policy in order to establish a crime against
humanity. The point is of current interest because Article 7(2)(a) of the ICC
Statute requires such a policy element. In contrast, the ICTY Appeals Chamber
held that ‘nothing in … customary international law … required proof of the exist-
ence of a plan or policy to commit these crimes.’92 The Case 002/01 Trial
Judgment reiterated the finding in the Case 001 Judgment that state practice and
opinio juris did not ‘clearly support’ a State or organization plan or policy require-
ment.93 The Trial Chamber reasoned that the defence had failed to establish that
such a requirement existed. In any event, the debate might be thought to be aca-
demic on the facts because the Trial Chamber found that the attack against the
civilian population was carried out ‘in furtherance of, and pursuant to, Party poli-
cies and plans’.94
8.5 Jurisprudential Stepping Stones: Elements

of Specific Crimes Against Humanity
The Trial Chamber rejected submissions that the ECCC did not have jurisdiction
to try international crimes because the ECCC is not an international tribunal where
international law is directly applicable. The Trial Chamber held that an accused is
not relieved of criminal responsibility in international law merely because an inter-
national crime is not also proscribed by national law.95 Three features of the Trial
Chamber’s findings in relation to the elements of certain specific crimes against
humanity in international law are highlighted here: (a) the mens rea relevant to the
crimes of murder and extermination; (b) the contours of persecution on political
grounds; and (c) other inhumane acts as a residual category of crimes against
humanity.

91Ibid., §§ 194, 725. The Case 002/01 Trial Judgment did not consider whether a state of armed
conflict existed between Cambodia and Vietnam after 17 April 1975.
92Judgment, Kunarac et al. (IT-96-23 & IT-96-23/1-A), Appeals Chamber, 12 June 2002, § 98.
94Ibid., § 193.
95Ibid., § 18.
196 R. Hopkins
8.5.1 The Mens Rea for Murder and/or Extermination
The elements of murder and extermination are similar, the main distinction being
that extermination involves death on a large scale.96 In Case 002/01, the Closing
Order charged both murder and extermination in relation to the evacuation of
Phnom Penh and killings at Tuol Po Chrey. In relation to subsequent population
movements from September 1975 onwards, the Closing Order charged extermina-
tion, but not murder. The Trial Chamber held that the mens rea for murder is an
intent to cause serious bodily harm in the reasonable knowledge that the act or
omission would likely lead to death.97 The mens rea for extermination is an inten-
tion to inflict serious bodily injury or create conditions of living that lead to death
in the reasonable knowledge that such an act or omission is likely to cause the
death of a large number of persons.98 It may be that the reason the Co-Investigating
Judges did not charge murder in relation to subsequent population movements is
that they considered that murder requires a more direct connection, such as in the
case of executions. The Trial Chamber concluded, however, that the crime of mur-
der was established during the evacuation of Phnom Penh, both in relation to those
who were executed and those who died as a result of the conditions.99
The Trial Chamber further noted that the mens rea for extermination has not
been consistently defined in the jurisprudence of the ICTY and ICTR and that
some cases have seemingly evolved to exclude dolus eventualis. The Trial
Chamber preferred the approach taken in the Krstić Trial Judgment, which it said
encompassed dolus eventualis and was based on a review of the pre-1975 jurispru-
dence.100 The Trial Chamber rejected a submission based on the Ntakirutimana
Appeal Judgment that extermination is only established where the circumstances
make death inevitable.101 On the facts of the evacuation of Phnom Penh, the Trial
Chamber concluded that Khmer Rouge soldiers intended to create conditions of
life that led to death in the reasonable knowledge that death was likely.102
8.5.2 The Contours of Persecution on Political Grounds
The Case 002/01 Trial Judgment applied a relatively broad definition of ‘political
group’ based on the Case 001 Appeal Judgment. It held that persecution requires
96See Judgment, Lukić and Lukić, (IT-98-32/1-A), 4 December 2012, Appeals Chamber, §§ 536–546.
98Ibid., § 417.
99Ibid., §§ 556–558.
100Ibid., § 417.
101Ibid., § 422.
102Compare ibid., § 556 (in relation to murder) with § 562 (in relation to extermination). In rela-
tion to subsequent population movements, see § 648.

‘discrimination in fact’, which occurs where a victim is ‘targeted because of the

victim’s membership in a group defined by the perpetrator on specific grounds’.103
One of the defendants submitted that victims of political persecution must actually
hold political views or be members of a political group or party in order to estab-
lish political persecution. The Trial Chamber rejected this submission, noting that
while some international jurisprudence had, for the purposes of political persecu-
tion, construed ‘political grounds’ narrowly, other cases had found that political
persecution occurred where discrimination was effected pursuant to political moti-
vations or a political agenda against a group which itself did not actually hold any
political views.104
The Trial Chamber further held that customary international law in 1975
criminalized an extensive range of persecutory conduct, including conduct not
specifically linked to another crime against humanity or war crime.105 On the
facts, however, the Case 002/01 Trial Judgment primarily limited findings of
political persecution to instances where underlying crimes against humanity were
established: murders, extermination and attacks on human dignity of Khmer
Republic officials and New People in the case of the evacuation of Phnom
Penh;106 forced transfer and enforced disappearances of New People in the case
of subsequent population movements after September 1975;107 and murder and
extermination of former Khmer Republic officials in the case of Tuol Po
Chrey.108
8.5.3 Inhumane Acts as a Residual Category

of Crimes Against Humanity
The Trial Chamber convicted Nuon Chea and Khieu Samphan of instances of ‘other
inhumane acts’ in the form of forced transfer, attacks against human dignity and
enforced disappearances. It confirmed previous decisions that this residual category
of crimes against humanity was established in customary international law before
1975.109 It held that ‘other inhumane acts’ is an international crime in itself: it is
therefore unnecessary to establish that subcategories (such as forced transfer, attacks
against human dignity or enforced disappearances) were specifically criminalized.110
103Ibid., § 428. (Emphasis added.).

104Ibid., § 430.
105Ibid., §§ 432–433.
106Ibid., §§ 566–574. The Trial Chamber specifically identified arrests as amounting to persecu-
tion even though such acts on their own do not necessarily amount to crimes.
107Ibid., §§ 649–657.
108Ibid., § 685.
109Ibid., § 435.
110Ibid., § 436.
198 R. Hopkins
It is a ‘residual category’ which criminalizes conduct which does not fit within one
of the specifically enumerated underlying crimes, provided that the acts are of a
‘similar nature and gravity as other enumerated crimes against humanity.’111
In the case of forced transfer, the Trial Chamber rejected a submission that dis-
placements for economic purposes were widely practiced in the 1970s and at other
times such that it should not be considered criminal. The Trial Chamber concluded
that forced displacements within national boundaries, carried out on grounds other
than civilian security or military necessity, can be of the utmost gravity.112 The
Case 002/01 Trial Judgment cited various examples from post WWII cases which
criminalized forced displacements, including displacements within national
boundaries, and further noted that jurisprudence from more recent international
tribunals and the ICC Statute indicate that forced transfer may be considered of
similar gravity to other crimes against humanity.113
In the case of attacks against human dignity, the Trial Chamber held that depri-
vations of food, water, shelter and medical assistance can be of a similar gravity to
enumerated crimes against humanity.114 It noted examples where such depriva-
tions have been found to violate the laws or customs of war, or amount to persecu-
tion as a crime against humanity, or even be considered evidence of an intention to
bring about a group’s physical destruction. The Trial Chamber therefore held that
there is no bar to such deprivations amounting to the crime against humanity of
‘other inhumane acts.’
In the case of enforced disappearances, the Trial Chamber noted that the
Nuremberg Judgment convicted individuals of war crimes for participating in the
‘Night and Fog’ Decree, an explicit policy which used enforced disappearances to
spread terror and suppress dissent.115 More recently, the ICC Statute recognizes
enforced disappearances as a discrete crime against humanity.116 The Trial
Chamber concluded that enforced disappearances occur when: (a) an individual is
deprived of their liberty; (b) the deprivation of liberty is followed by the refusal to
disclose information regarding the fate or whereabouts of the person, or to
acknowledge the deprivation of liberty thereby denying recourse to legal remedies;
and (c) the first and second elements were carried out by state agents, or with the
authorization, support or acquiescence of a State or political organization.117
111Ibid., §§ 437–438.
112Ibid., § 453.
113Ibid., §§ 454–455. For a detailed analysis of ‘forced transfer’ see N. Quick, Chapter 11 in this
Volume.
114Ibid., § 458.
115Ibid., § 444.
116Ibid., § 447.
117Ibid., § 448.
8.6 Civil Party Reparations
There was no avenue of redress for victims at Nuremberg, Tokyo or at the more
recent ad hoc tribunals. The ECCC is one of the first tribunals trying mass atroci-
ties to seek to implement a reparations programme. The ICC is in the process of
formulating and implementing reparations in the Lubanga and Katanga cases.118
The Case 002/01 Trial Judgment will therefore be of interest to those involved in
victims’ claims at the ICC. The Case 002/01 Trial Judgment included an analysis
of the harm suffered by the Civil Parties as a result of the crimes for which Nuon
Chea and Khieu Samphan were convicted and endorsed a number of ‘moral and
collective’ reparations awards. The terminology of ‘moral and collective’ repara-
tions is found in the ECCC’s Internal Rule 23, which excludes monetary payments
but which seeks to acknowledge harm suffered by Civil Parties and provide bene-
fits which address that harm.
The Case 002/01 Trial Judgment approved a number of reparations projects, most
of which were externally funded rather than part of the ECCC’s budget. The follow-
ing projects were approved: ‘remembrance and memorialisation’ (in the form of a
national remembrance day and a group of sculptures to be built in Phnom Penh
depicting the exodus of Cambodian people from urban areas); ‘therapy and psycho-
logical assistance’ (in the form of therapy sessions and the recording testimonies of
traumatic experiences with the assistance of mental health workers and ceremonies
to be held in accordance with victims’ religious or spiritual beliefs); and ‘documen-
tation and education’ (in the form of permanent exhibition spaces and a learning cen-
tre designed to preserve accounts of the Khmer Rouge era, mobile exhibitions, a
chapter on forced population movement and executions at Tuol Po Chrey to be
included in the Cambodian school curriculum, publication of facts from Case 002/01
including the publication and distribution of Khmer versions of the judgment and a
summary, and the addition of civil parties names on the ECCC’s website).119
The approach to reparations in Case 002/01 Trial Judgment differed from that
in Case 001, where the Trial Chamber considered each of the Civil Party claims
individually. Indeed, in Case 001, the Trial Chamber rejected a number of applica-
tions on the basis that, following a detailed review, the Civil Parties had not estab-
lished a causal link between the harm they suffered and the crimes for which Duch
was convicted (for example, they had not shown that they were detailed at S-21 as
opposed to another security centre).120 After Case 001, however, a new version of
Internal Rule 23 was adopted which provided that, whereas the Civil Parties par-
ticipate individually at the pre-trial stage, come trial they comprise a single
118Article 75 of the ICC Statute provides an express obligation upon that court to establish prin-
ciples relating to reparations. Whereas the Case 002/01 Trial Judgment deals with reparations at
the same time as ruling on the criminal responsibility of the Accused, the ICC adopts a bifurcated
procedure whereby reparations are addressed later in the proceedings.
120The Supreme Court Chamber overturned a number of these decisions on appeal.
200 R. Hopkins
consolidated group. The change to the rule was necessary because over 4,000 Civil
Party claims were admitted in Case 002 such that individualised assessments
would create significant practical difficulties at trial. An amended Internal Rule
100 therefore requires the Trial Chamber to make a decision on the Civil Party
‘claim’ (singular, as opposed to the plural ‘claims’ referred to in the previous ver-
sion of Internal Rule 100).
A possible consequence of this new reparations regime is that, following the
conviction of Nuon Chea and Khieu Samphan, those Civil Parties within the con-
solidated group who suffered no harm at all as a result of the crimes for which
Nuon Chea and Khieu Samphan were convicted (for example, their claim might
relate to different events than those adjudicated in Case 002/01), are neverthe-
less entitled to share in the collective reparations as members of the consolidated
group. Indeed, some of the benefits of the reparations approved are not limited
to Civil Parties at all but have a wider impact. Some might suggest that tribunals
dealing with reparations are still searching for the right balance between meaning-
ful participation and appropriate reparations on the one hand, and practical and
financial limitations on the other.
8.7 The Significance of the Case 002/01 Trial Judgment
It is too early to draw any firm conclusions about the overall significance of the
Case 002/01 Trial Judgment: it remains the subject of appeal and will be vigor-
ously contested, including in relation to many of the questions of law and fact
summarised above. In any event, the exercise that one sees repeated in the Case
002/01 Trial Judgment, whereby the Trial Chamber sought to identify and apply
customary international law as it stood in 1975, means that Case 002/01 Trial
Judgment will be a valuable resource should similarly historic crimes committed in
Cambodia or other countries ever be prosecuted. The Case 002/01 Trial Judgment
is an important stepping stone between post-World War II cases and cases stem-
ming from more recent conflicts. It is a significant Judgment in the annals of inter-
national criminal law which should be scrutinised by practitioners and academics.
A few final thoughts might be added. It is perhaps worth highlighting that
the full written Case 002/01 Trial Judgment was issued on the same day in three
authoritative languages: Khmer English and French—a significant accomplish-
ment considering that the usual practice at other tribunals is to issue a Judgment
in one language, with mere translations following sometimes years later. It may,
however, be questioned whether it is wise to follow such an approach given
the time that it adds to the Judgment drafting process. The Case 002/01 Trial
Judgment also represents the result of a novel mixture of civil and common law
approaches to trying a leadership case involving allegations of responsibility for
mass atrocities. In this respect, it should be read together with the Trial Chamber’s
final decision on witnesses, civil parties and experts, issued on the same day as
the Case 002/01 Trial Judgment and which included a split between the
Cambodian and international judges as to whether certain witnesses should have

been summonsed to testify during Case 002/01.
The ECCC’s temporal jurisdiction is limited to 17 April 1975 to 6 January
1979. Yet the Case 002/01 Trial Judgment includes findings on various contextual
matters, including findings that the United States’ bombing of Cambodia between
1969 and 1973 was ‘devastating’121 and served to push North-Vietnamese troops
further into Cambodia which heightened the crisis and radicalised Khmer Rouge
forces.122 The Trial Chamber found that, although the US Congress prohibited US
personnel engaging in ‘any combat activity’ in Cambodia after December 1970,
US military bombings continued until August 1973.123 The Trial Chamber esti-
mated that tens of thousands of people were killed by the American bombing.124
Although not the focus of the ECCC, these are quite striking factual findings.
Finally, the Case 002/01 Trial Judgment is the partial result of a unique attempt
to sever a charging document and hold successive trials against the same accused.
Following the delivery of the Case 002/01 Trial Judgment and the Trial Chamber’s
stated intention to proceed to hear a second case, Case 002/02, Nuon Chea and Khieu
Samphan filed disqualification applications arguing, among other things, that hav-
ing already convicted them once and made findings on matters in Case 002/01 which
prejudged matters in Case 002/02, the judges were biased or appeared to be biased.
On 19 November 2014, a special panel of judges dismissed the disqualification appli-
cations by majority, thus allowing the judges who sat on Case 002/01 to sit on Case
002/02. When deciding how to approach vast cases involving elderly accused, aca-
demics and practitioners should give detailed attention to this aspect of the Case 002.
References
Boas G, Bischoff J, Reid N (2007) Forms of responsibility in international criminal law.

International Criminal Law Practitioner Library, vol. 1, Cambridge University Press, Cambridge
Ciorciari J, Heindel A (2014) Hybrid justice: the extraordinary chambers in the courts of
Cambodia. University of Michigan Press, Michigan
Cryer R, Friman H, Robinson D, Wilmshurst E (2008) An introduction to international criminal
law and procedure. Cambridge University Press, Cambridge
Dugard J (2007) Foreword. In: Boas G, Bischoff J, Reid N, Forms of responsibility in inter-
national criminal law. International Criminal Law Practitioner Library, vol. 1, Cambridge:
Cambridge University Press, Cambridge, pp xiii-xvi
Heller K (2011) The nuremberg military tribunals and the origins of international criminal law.
Oxford University Press, Oxford
Schabas W (2011) An introduction to the international criminal court. Cambridge University
Press, Cambridge
121Ibid., §§ 155, 527.

122Ibid., § 121.
123Ibid., § 154.
124Ibid., § 155.
Chapter 9
The Theory of Joint Criminal Enterprise
at the ECCC: A Difficult Relationship
Lachezar Yanev
Abstract The doctrine of JCE has played an important role in the jurisprudence
of the ECCC, seeing as it was used to convict the accused in both cases that the
Court has adjudicated thus far. This case law, although not so voluminous, has
quickly managed to attract a lot of attention, largely due to the fact that, in sev-
eral notable aspects, it deviates from the original legal framework that the UN ad
hoc Tribunals have given to this mode of liability. Most significantly, the ECCC
rejected the so-called ‘extended’ form of joint criminal enterprise for lacking legal
basis in customary international criminal law and only endorsed the ‘basic’ and
‘systemic’ categories of this notion. Moreover, in relation to the latter two, the
judges have construed some of their legal elements in a manner that is at odds
with the established jurisprudence. The present chapter will review the adoption
and evolution of the JCE theory in the ECCC case law, and examine the most
notable findings that have been reached on its application in the proceedings
brought before the ECCC. The second main part of this chapter will then sepa-
rately conduct a renewed analysis of the Nuremberg-era cases that have been cited
by the modern international tribunals as evidence of the customary nature of the
‘extended’ form of JCE and will, thus, reflect on the ECCC’s decision to reject this
form of criminal responsibility.
Keywords Modes of liability · Joint criminal enterprise · Customary interna-

tional law · International criminal tribunals · World War II trials
The content of Sect. 9.4. of this chapter is based on research that the author conducted in his doctoral
dissertation. The author is doctoral researcher in the Criminal Law Department of Tilburg University.
L. Yanev (*)
Tilburg University, Tilburg, The Netherlands
e-mail: l.d.yanev@gmail.com

DOI 10.1007/978-94-6265-105-0_9
204 L. Yanev
Contents
9.1 Introduction.......................................................................................................................... 204
9.2 The Notion of Joint Criminal Enterprise: A Brief Overview............................................... 206
9.3 The ECCC Case Law on Joint Criminal Enterprise............................................................. 208
9.3.1 The December 2009 Order on the Application of JCE.............................................. 208
9.3.2 Case 002: Decisions and Judgments.......................................................................... 211
9.3.3 Case 001: The Duch Trial Judgment.......................................................................... 225
9.4 The Customary Status of JCE III Liability.......................................................................... 229
9.4.1 JCE III Liability in Nuremberg-Era Legislation........................................................ 229
9.4.2 JCE III in the Subsequent Trials of Nazi War Criminals........................................... 233
9.4.3 Deciding on the Customary Status of JCE III............................................................ 247
9.5 Conclusion........................................................................................................................... 251
References................................................................................................................................... 253
9.1 Introduction
The doctrine of joint criminal enterprise (JCE), also referred to as the common
purpose theory, has had a remarkably prolific career in the field of international
criminal law. It was construed by the Appeals Chamber of the International
Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case1 and has
been continuously applied in the Tribunal’s subsequent jurisprudence,2 as well as
in that of the International Criminal Tribunal for Rwanda (ICTR).3 Beyond the UN
ad hoc Tribunals, this mode of liability was also adopted in the case law of many
of the so-called hybrid/internationalized courts, including the Special Court for
1Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999 (hereafter Tadić Appeal
Judgment), §§ 185–229. It ought to be noted, however, that the core rationale and customary
foundations of the common purpose theory were discussed, albeit in a less elaborate and system-
ized manner, in the earlier Furundžija Trial Judgment. See Judgment, Furundžija (IT-95-17/1-T),
Trial Chamber, 10 December 1998, §§ 210–216, 249–257.
2Judgment, Vasiljević (IT-98-32-A), Appeals Chamber, 25 February 2004 (hereafter Vasiljević
Appeal Judgment), §§ 94–102; Judgment, Kvočka and others (IT-98-30/1-A), Appeals Chamber,
28 February 2005 (hereafter Kvočka and others Appeal Judgment), §§ 79–119; Judgment,
Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, §§ 58–65; Judgment, Brđanin (IT-99-
36-A), Appeals Chamber, 3 April 2007 (hereafter Brđanin Appeal Judgment), §§ 357–432;
Judgment, Krajišnik (IT-00-39-A), Appeals Chamber, 17 March 2009 (hereafter Krajišnik Appeal
Judgment), §§ 657–672; Judgment, Đorđević (IT-05-87/1-A), Appeals Chamber, 27 January
2014 (hereafter Đorđević Appeal Judgment), §§ 25–58.
3Judgment, Kayishema and Ruzindana (ICTR-95-1-A), Appeals Chamber, 1 June 2001, §§
191–193; Judgment, Ntakirutimana and Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A),

Appeals Chamber, 13 December 2004, §§ 461–468; Judgment, Simba (ICTR-01-76-A), Appeals
Chamber, 27 November 2007, §§ 243–255; Judgment, Munyakazi (ICTR-97-36A-A), Judgment,
Appeals Chamber, 28 September 2011, §§ 156–64.
9 The Theory of Joint Criminal Enterprise at the ECCC … 205
Sierra Leone (SCSL),4 the East Timor Tribunal5 and the Special Tribunal for
Lebanon (STL).6 Although various aspects of the JCE doctrine have often
attracted academic criticism, this notion continues to play a pivotal role in interna-
tional prosecutions and has been described as ‘the most important mode of liabil-
ity in modern international criminal law’.7
The Extraordinary Chambers in the Courts of Cambodia (ECCC) also endorsed
the JCE doctrine, albeit in a fashion that has left a notable mark in the interna-
tional jurisprudence on this mode of liability. Already in its early case law, the
ECCC refused to automatically adopt Tadić’s findings on this concept and instead
carried out its own, independent analysis on the applicability of JCE liability in its
criminal proceedings.8 First, on 20 May 2010, the Pre-Trial Chamber issued a
decision in which it conducted a de novo analysis on World War II-era case law
and concluded, contrary to the Tadić Appeal Judgment, that the ‘extended’ cate-
gory of JCE had not become part of customary international law at the time of the
events falling under the ECCC’s jurisdiction.9 Soon after, on 12 September 2011,
the Trial Chamber issued its ‘Decision on the Applicability of Joint Criminal
Enterprise’ which affirmed the Pre-Trial Chamber’s findings and thus further cast
doubt on the Tadić analysis on JCE liability.10 Overall, several aspects of the scope
and nature of this notion have been interpreted by the ECCC judges in a manner
that deviates from the ICTY/R JCE jurisprudence, thus attracting a lot of attention
both in academia and in legal practice.
This chapter does not seek to provide a detailed analysis of JCE’s doctrinal
framework or to address those aspects of it that have been subject to criticism over
the years. Rather, its goal is twofold: (i) to sketch out the ECCC jurisprudence on
this mode of liability and critically examine how it has defined and applied the
constituent elements of JCE responsibility; and (ii) to elaborate on the Tribunal’s
decision to reject the ‘extended’ variant of JCE. To this end, the reader will be first
4Judgment, Brima, Kamara and Kanu (SCSL-2004-16-A), Appeals Chamber, 22 February 2008,
§§ 72–75; Judgment, Sesay, Kallon and Gbao (SCSL-04-15-A), Appeals Chamber, 26 October
2009, §§ 474–475; Judgment, Charles Ghankay Taylor (SCSL-03-01-T), Trial Chamber, 18 May
2012, §§ 457–468.
5Judgment, Jose Cardoso (SPSC-04/2001), 5 April 2003, at 101–105; Judgment, Francisco
Perreira (SPSC-34/2003), 27 April 2005, at 19–20.

6Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration,
Cumulative Charging (STL-11-01/1/I/AC/R176bis), Appeals Chamber, 16 February 2011 (here-

after STL Interlocutory Decision), §§ 236–249.
7Ohlin 2009, at 407. See also e.g. Van Sliedregt 2007, at 187; Piacente 2004, at 446–454;
O’Rourke 2006, at 307.

8Gustafson 2010, at 1323–1324; Clarke 2011, at 841.
9Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise
(JCE), Nuon Chea and others (002/19-09-2007-ECCC-D97/15/9), Pre-Trial Chamber, 20 May

2010 (hereafter ECCC May 2010 JCE Decision), §§ 79–83.
10Decision on the Applicability of Joint Criminal Enterprise, Nuon Chea and others
(002/19-09-2007-ECCC-E100/6), Trial Chamber, 12 September 2011 (hereafter ECCC

September 2011 JCE Decision), §§ 32–35.
206 L. Yanev
briefly introduced to the legal framework of JCE liability, as defined in the doc-
trine’s locus classicus: the Tadić Appeal Judgment. Next, the first major part of the
research will analyze how this concept has been interpreted and applied at the
ECCC. The focus here will strictly fall on the most relevant decisions and judg-
ments delivered to date in Case 001 and Case 002.11 The second major part of this
research will then more closely examine the Tribunal’s arguments to renounce the
customary status of JCE III liability and will provide additional research and some
reflections on the decision to do so.
9.2 The Notion of Joint Criminal Enterprise: A Brief

Overview
JCE liability has often been described as a sui generis concept of international
criminal law that was adopted to deal with the specific nature of international
crimes.12 Indeed, already at the time of the Second World War, the inherent differ-
ences between these crimes and ordinary, domestic offences were being high-
lighted in an effort to construct special legal concepts that will allow to adequately
allocate individual responsibility in a context of mass and systemic criminality.
Thus, for instance, Professor Aron Trainin, who was a leading Soviet jurist during
the war, wrote in his book on the criminal liability of Hitler and the Nazi leader-
ship that:
As distinct from common crimes, international crimes are almost always committed not
by one person, but by several or many persons - a group, a band, a clique. The accom-
plices in international crimes are extremely peculiar in their official position and their
social composition. These are not some Tom, Dick or Harry of unknown lineage, without
hearth or home. These are ‘titled personages’, upper classes, Ministers, Generals, ‘lead-
ers’. But the particularly complicated character of responsibility for complicity in interna-
tional crimes is determined, of course, not by the high ranks and titles of the accomplices.
The complexity and exceptional peculiarity of the structure of complicity in international
crimes are caused by the extremely complex connections between the individual accom-
plices in international offences.13
This specificity of international crimes was also referred to by the ICTY Tadić
Appeals Chamber when it first explained the need for adopting the doctrine of
JCE. In a much quoted dictum, the judges observed that:
Most of the time these crimes do not result from the criminal propensity of single individ-
uals but constitute manifestations of collective criminality: the crimes are often carried out
by groups of individuals acting in pursuance of a common criminal design. Although only
some members of the group may physically perpetrate the criminal act (murder,
11At the time of writing this research, October 2014, Case 003 and Case 004 are still at the inves-
tigations stage and have not produced any significant JCE jurisprudence yet.
12Van Sliedregt 2007, at 199. See also Ambos 2009, at 364–365.
13Trainin 1945, at 79.
extermination, wanton destruction of cities, towns or villages, etc.), the participation and
contribution of the other members of the group is often vital in facilitating the commission
of the offence in question. It follows that the moral gravity of such participation is often
no less - or indeed no different - from that of those actually carrying out the acts in
question.14
It is precisely this kind of factual scenarios that the modern international tribu-
nals have come to deal with under the JCE rubric.
JCE is thus a mode of liability that applies in cases were a plurality of persons
coordinate efforts to execute a common criminal purpose. In Tadić, the ICTY
Appeals Chamber found, after examining a series of Nuremberg-era judgments
and some international treaties, that this concept is firmly established under cus-
tomary international law and identified three distinct categories of JCE liability:
the ‘basic’ (JCE I), the ‘systemic’ (JCE II) and the ‘extended’ (JCE III) category.15
JCE I presents the most common variant of the theory and is characterized by
cases in which all the participants in the common purpose contribute to its execu-
tion with a shared intent to commit its underlying crime.16 JCE II is often defined
as a ‘different articulation of the first’ JCE form17 and is applied in cases where
the common purpose takes place in a system of ill-treatment, such as a concentra-
tion camp or a detention facility.18 Finally, JCE III concerns cases in which a
crime is committed outside the scope of the original common purpose but is never-
theless considered to be a natural and foreseeable consequence of carrying out the
crimes inherent to the enterprise.19 The Tadić Appeal Judgment further explained
that all three JCE variants have the same objective elements: (i) a plurality of per-
sons; (ii) a common plan which amounts to involves the commission of crimes;
and (iii) the participation of the accused in the common purpose.20 Thus, the dif-
ference between the ‘basic’, the ‘systemic’ and the ‘extended’ form of JCE is said
to lie in the subjective elements. In particular, JCE I liability requires that the
accused shares a common intent with the other JCE participants to commit the
14Tadić Appeal Judgment, supra note 1, § 191. See also Kvočka and others Appeal Judgment,
supra note 2, § 80; Decision on the Preliminary Motions by the Defence of Joseph Nzirorera,
Édouard Karemera, Andre Rwamakuba and Mathieu Ngirumpatse Challenging Jurisdiction in
relation to Joint Criminal Enterprise, Karemera and others (ICTR-98-44-T), Trial Chamber III,
11 May 2004, § 36.
15Tadić Appeal Judgment, supra note 1, §§ 195–213, 220–226.
16Ibid., §§ 196–201. See also Vasiljević Appeal Judgment, supra note 2, § 97; Judgment,
Gacumbitsi (ICTR-2001-64-A), Appeals Chamber, 7 July 2006, § 158.

17STL Interlocutory Decision, supra note 6, § 238. See also Tadić Appeal Judgment, supra note
1, § 202.
18Tadić Appeal Judgment, supra note 1, §§ 202–203. See also Judgment, Krnojelac (IT-97-
25-A), Appeals Chamber, 17 September 2003 (hereafter Krnojelac Appeal Judgment), § 89;
Kvočka and others Appeal Judgment, supra note 2, § 82.
19Tadić Appeal Judgment, supra note 1, §§ 204–213. See also Judgment, Stakić (IT-97-24-A),
Appeals Chamber, 22 March 2006, § 65; Đorđević Appeal Judgment, supra note 2, § 919.
20Tadić Appeal Judgment, supra note 1, § 227.
208 L. Yanev
concerted crime(s).21 JCE II applies when the accused has personal knowledge of
the system of ill-treatment and intends to further its criminal purpose.22 Finally,
JCE III allows holding the accused responsible for an additional/extended crime of
the enterprise if he: (i) shared the intend to commit the JCE core crime(s), and
(ii) it was foreseeable that the extra crime might be perpetrated and the accused
willingly took that risk by continuing to participate in the enterprise.23 Overall, the
ICTY has continuously held that ‘participation in any category of joint criminal
enterprise is a form of commission’,24 meaning that each participant in the JCE
incurs co-perpetration liability for the commission of the concerted crime(s).
The precise scope and meaning of each legal element of the JCE theory, as
elaborated in the Tribunal’s post–Tadić jurisprudence, have been extensively
researched in academia25 and will not be separately reviewed here. What should
be pointed out, however, is that the Tadić Appeals Chamber’s substantive analysis
on JCE and its customary origins was never critically reassessed in the ICTY/R
subsequent case law. Rather, whenever defendants have challenged the legal basis
for the application of this theory, judges have dealt with the matter by making
rather perfunctory references to the relevant findings in the Tadić Appeal
Judgment.26 Olásolo thus argues that ‘the ICTY Appeal Judgment in the Tadić
case is still, today, the cornerstone of the ICTY and ICTR case law on the notion
of joint criminal enterprise’.27
9.3 The ECCC Case Law on Joint Criminal Enterprise
9.3.1 The December 2009 Order on the Application of JCE
The JCE theory made its first significant appearance in the ECCC jurisprudence
when the Office of the Co-Investigating Judges (OCIJ) issued the ‘Order on the
Application at the ECCC of the Form of Liability Known as Joint Criminal
21Ibid., § 228. See also Brđanin Appeal Judgment, supra note 2, § 365.
22Tadić Appeal Judgment, supra note 1, § 228. See also Kvočka and others Appeal Judgment,
23Tadić Appeal Judgment, supra note 1, § 228. See also Vasiljević Appeal Judgment, supra note
2, § 101.
24Đorđević Appeal Judgment, supra note 2, § 56. See also Krajišnik Appeal Judgment, supra
note 2, §§ 663–664; Brđanin Appeal Judgment, supra note 2, § 413; Decision on Dragoljub
Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise, Milutinović and others
(IT-99-37-AR72), Appeals Chamber, 21 May 2003 (hereafter Ojdanić JCE Decision), § 20; Tadić
Appeal Judgment, supra note 1, §§ 188, 191–192.
25Boas et al. 2008, at 7–141; Olásolo 2009, at 153–264.
26See e.g. Krajišnik Appeal Judgment, supra note 2, § 659; Judgment, Martić (IT-95-11-A),
Appeals Chamber, 8 October 2008, § 80; Ojdanić JCE Decision, supra note 24, § 29.
27Olásolo 2009, at 49.
Enterprise’.28 The OCIJ was seized of a submission by the Defence of Ieng Sary
who argued that the application of JCE liability before the ECCC will violate the
nullum crimen sine lege principle because:
It was not acknowledged as customary international law in 1975–1979, nor is it presently
recognized as such. In addition … JCE is not specified in the ECCC Establishment law,
nor is it part of Cambodian law, or recognized by any international convention enforceable
before the ECCC.29
The OCIJ began its analysis on the merits of the Defence’s submission by
acknowledging that Article 29 of the ECCC Establishment Law, which establishes
the modes of liability that are applicable in ECCC proceedings, does not explicitly
establish the notion of JCE.30 Nevertheless, the judges reasoned that ‘the ECCC
holds indicia of an international court applying international law’ and as such can
also apply rules of customary international law.31 By solely referring to the Tadić
Appeal Judgment and the fact that its conclusions on the JCE customary status
were based on a review of Nuremberg-era jurisprudence that pre-dated the events
investigated at the ECCC, the OCIJ concluded that this mode of liability can be
applied at the Tribunal without prejudice to the nullum crimen sine lege princi-
ple.32 Notably, in their analysis on this matter, the judges relied on the reasoning
of the ICTY Appeals Chamber in the Milutinović et al. case, where it held that:
(i) the nulum crimen sine lege principle commands that an individual can only be
convicted on the basis of a law that existed at the time of his acts and was suffi-
ciently foreseeable and accessible to him, and (ii) JCE liability, by virtue of having
crystalized as a norm of customary international law prior to the Yugoslav war, sat-
isfies the above requirements of the legality principle and can, therefore, be
applied at the ICTY.33
The OCIJ did not examine in any detail JCE’s doctrinal framework. Rather, it
summarily re-stated Tadić’s findings on the legal elements of the ‘basic’, ‘sys-
temic’ and ‘extended’ form of the theory and concluded that this is how it is to be
28Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal
Enterprise, Nuon Chea and others (002/19-09-2007-ECCC-D97/13), 8 December 2009 (hereafter

ECCC December 2009 JCE Order).
29Ibid., § 1. Subsequently, concurring submissions were also made by the Defence of Ieng
Thirith and Nuon Chea. Ibid., § 3.

30Ibid., § 13. The relevant part of Article 29 ECCC Establishments Law reads: “Any Suspect who
planned, instigated, ordered, aided and abetted, or committed the crimes referred to in article
3 new, 4, 5, 6, 7 and 8 of this law shall be individually responsible for the crime.” 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 (as last amended on 27 October
2004), 10 August 2001, Article 29.
31ECCC December 2009 JCE Order, supra note 28, § 21.
32Ibid.
33Ojdanić JCE Decision, supra note 24, §§ 37, 41. Virtually the same findings were made by the
OCIJ. See ECCC December 2009 JCE Order, supra note 28, §§ 18–20. See also Gustafson 2010,
at 1326; Cassese 2009, at 321–322.
210 L. Yanev
applied before the ECCC.34 To be sure, there is nothing surprising about this def-
erence to the seminal Tadić Appeal Judgment as a support for adopting the JCE
doctrine. The ICTR,35 the SCSL36 and the STL37 all emphatically endorsed the
Tadić Appeals Chamber’s analysis when introducing this mode of liability in their
jurisprudence. What was, however, a rather novel finding in the OCIJ Order on the
Application of JCE was the conclusion that this form of criminal liability is appli-
cable only to international crimes and not to the Cambodian domestic crimes pro-
vided for under Article 3 (new) of the ECCC Establishment Law.38 The judges
reached this conclusion after holding that under French law, which served as a
model for the Cambodian Penal Code, international criminal law constitutes an
autonomous legal regime that is distinct from domestic law and, therefore, ‘the
modes of liability for international crimes can only be applied to the international
crimes.’39 There are several reason why one could be skeptic about the merits of
this finding. First of all, nothing in the ECCC Establishments Law suggests that it
adopts the ‘autonomous legal regimes’ principle. As Jain has also pointed out, the
SCSL is also a hybrid tribunal which has jurisdiction over both international
crimes and domestic crimes, and its Statute explicitly states that ‘[i]ndividual
criminal responsibility for the [national] crimes referred to in Article 5 shall be
determined in accordance with the respective laws of Sierra Leone.’40 No such
provision was included in Article 29 of the ECCC Establishment Law, which oth-
erwise mirrors in all other aspects Article 6 of the SCSL Statute. Next to this,
although the UN ad hoc Tribunals had never had to make a finding on the issue
whether JCE could also be applied to domestic crimes,41 there is still international
jurisprudence to this effect. In particular, the Appeals Chamber of the STL, which
is uniquely an international tribunal that has jurisdiction solely over crimes under
34ECCC December 2009 JCE Order, supra note 28, §§ 13–17, 21.
35Judgment, Kayishema and Ruzindana (ICTR-95-1-A), Appeals Chamber, 1 June 2001, §§ 191–
193; Judgment, Ntakirutimana and Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A), Appeals
Chamber, 13 December 2004, §§ 461–468.
36Judgment, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber, 2 August 2007, §§ 206–219;
Judgment, Brima, Kamara and Kanu (SCSL-2004-16-A), Appeals Chamber, 22 February 2008,
§§ 72–75.
37STL Interlocutory Decision, supra note 6, §§ 236–249.
39Ibid.
40UN Security Council, Statute of the Special Court for Sierra Leone, 16 January 2002, Article
6(5). (emphasis added) Jain 2014, at 71.

41The material jurisdiction of both the ICTY and the ICTR is strictly limited to war crimes,
crimes against humanity and genocide (i.e. international crimes). See UN Security Council,
Statute of the International Criminal Tribunal for the former Yugoslavia (as last amended on
7 July 2009), 25 May 1993, Articles 2–5; UN Security Council, Statute of the International
Criminal Tribunal for Rwanda (as last amended on 13 October 2006), 8 November 1994,
Articles 2–4.
Lebanese criminal law,42 has concluded that the JCE theory, as defined in interna-
tional case law, can be used to ascribe criminal liability for the domestic offences
listed in the STL Statute.43 Some have contended that such an application of an
international mode of liability to domestic crimes would violate the nullum crimen
sine lege principle.44 It is, however, doubtful how much weight there is in this
argument, given that: (i) both the STL and the ECCC have acknowledged that JCE
responsibility closely resembles the national law on co-perpetration in, respec-
tively, Lebanon and Cambodia,45 and (ii) it has been pointed out that the require-
ment of specificity, inherent to the legality principle, is not breached when ‘the
developed law retains the very essence of the original crime [or mode of liability]
even though not corresponding to every detail of it.’46 Thus, if one adopts the con-
clusion of the ECCC that JCE, at least in its ‘basic’ and systemic’ form, corre-
sponds fundamentally (albeit not in every detail) to the Cambodian law on
co-perpetration (‘coaction’), and thereby that ‘JCE has an underpinning in
Cambodian law’,47 it may well be argued that the application of this mode of lia-
bility to the domestic crimes contained in the ECCC Establishment Law would not
violate the nullum crimen sine lege principle.
9.3.2 Case 002: Decisions and Judgments
9.3.2.1 The May 2010 Pre-trial Chamber’s Decision on JCE
Three of the accused in Case 002, Ieng Thirith, Ieng Sary and Khieu Samphan,
appealed the OCIJ Order on the application of JCE, asking the Pre-Trial Chamber
to quash it and to ‘find that the ECCC has no jurisdiction over JCE as a form of
liability.’48 They argued, inter alia, that the OJIC erred when holding that JCE was
established as customary international law in 1975–79 without conducting an
independent analysis to this effect and that there is, in fact, no legal basis for such
a finding. Moreover, it was further submitted that the OJIC wrongly held that the
ECCC is an international court: the Defence contended that it is in fact a domestic
one and that, as such, it could not directly apply customary international law.49
42UN Security Council, Security Council resolution 1757 (2007) [on the establishment of a
Special Tribunal for Lebanon], 30 May 2007, S/RES/1757 (2007), Statute of the Special Tribunal
for Lebanon (Attachment), Preamble and Article 2. See also Bassiouni 2013, at 775.
43STL Interlocutory Decision, supra note 6, §§ 257–262.
44Milanovic 2007, 1139–1152; Jain 2014, at 71.
45STL Interlocutory Decision, supra note 6, §§ 259–261; ECCC May 2010 JCE Decision, supra
note 9, § 41.
46Shahabuddeen 2004, at 1007, 1010–1011.
47ECCC May 2010 JCE Decision, supra note 9, § 41. See also Cassese 2009, at 300–301, 323–
325; Marsh and Ramsden 2011, at 141; Ambos 2009, at 387.

48ECCC May 2010 JCE Decision, supra note 9, §§ 6–8.
49Ibid.
212 L. Yanev
On 20 May 2010, the ECCC Pre-Trial Chamber issued one of the most notable
decisions in the international jurisprudence on JCE liability: the ‘Decision on the
Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise
(JCE)’. The judges briefly distinguished the three variants of the doctrine and their
constituent elements, as defined by the ICTY Appeals Chamber’s interpretation of
World War II-era case law.50 They found that JCE is a unique mode of liability
under international criminal law which combines both common and civil law fea-
tures, yet resembles the concept of co-perpetration as construed under Cambodian
criminal law.51 The Chamber further acknowledged that the application of JCE lia-
bility in ECCC proceedings has to be done in conformity with the principle of nul-
lum crimen sine lege and, just like the OCIJ did, it endorsed the test developed by
the ICTY Milutinović and others Appeals Chamber.52
Turning to the substance of the Defence’s appeal, the pre-trial judges first
addressed the argument that the ECCC cannot apply customary international law
because it is a domestic court. Karnavas, who was one of the Defence lawyers in
the case, subsequently reiterated the reasoning behind this submission in his schol-
arly work where he stated that ‘Cambodia adheres to a dualist system rather than a
monist system, and will therefore not directly apply customary international law in
the absence of [implementing legislation].’53 As explained above, the OCIJ dealt
with this challenge by finding that the ECCC ‘holds indicia of an international
court’ and, therefore, could apply norms of customary international law in its pro-
ceedings.54 This conclusion, however, is not uncontroversial. Various theories have
been discussed in academia on what features characterize a court as international,
rather than domestic,55 and the nature of the Cambodia Tribunal has been subject
to some debate. Although the Supreme Court Chamber has confirmed that the
ECCC is a ‘separately constituted, independent and internationalised court’,56 and
it has often been labelled as such by the international commentariat,57 there are
50Ibid., §§ 37–39.
51Ibid., §§ 40–41, 101. Interestingly, the Chamber gave only one reason why in its view JCE I/II
liability and the Cambodian law on co-perpetration (‘coaction’) are not exactly the same: the fact
that the former concept could also be applied in situations where the accused is geographically
remote from the actual perpetration of the crime, while Cambodian law requires a more direct
participation in order to qualify the accused as a co-perpetrator.
52Ibid., §§ 43–43. See supra text accompanying note 34.
53Karnavas 2010, at 480–481. See also Ieng Sary’s Motion against the Application at the
ECCC of the Form of Liability Known as Joint Criminal Enterprise, Nuon Chea and others
(002/19-09-2007-ECCC-D97), 28 July 2008, §§ 25–27.
55Heller 2011, at 110–111; Williams 2012, at 201 et seq.
56Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F26/3), Supreme Court Chamber,
3 February 2012, § 393 (hereafter Duch Appeals Judgment), confirming an earlier find-
ing made by the Trial Chamber in Decision on Request of Release, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-E39/5), Trial Chamber, 15 June 2009, § 10.
57Jain 2014, at 69; Ehlert 2013, at 191–192. Williams 2012, at 64, 120–133.
also scholars who have quite convincingly argued that the ECCC is in fact a
domestic, Cambodian court.58 In this respect, it is notable that when the Pre-Trial
Chamber proceeded to assess the Defence’s challenge on this point, it steered
away from this debate and provided a different argument to uphold the OCIJ con-
clusion that the ECCC can apply customary international law. In particular, the
judges found that irrespective of whether the Court is defined as international or
domestic in nature, Article 2 of the Establishment Law, which states that the
ECCC is established in order to try those most responsible for ‘crimes and serious
violations of… international humanitarian law and custom’:59
can only lead to the conclusion that the ECCC has jurisdiction to apply forms of responsi-
bility recognized under customary international law at the time.60
Thus, the judges offered a more holistic interpretation of the ECCC Law, pur-
suant to which they could exercise jurisdiction not only over the crimes under
customary international criminal law—which is what the plain text of Article 2
states—but also over the modes of liability recognized in this field.
The more challenging question which the Pre-Trial Chamber had to address
was whether, even if it could apply customary international criminal law, JCE lia-
bility had in fact crystallized as a custom prior to the indicted period (1975–79).
The judges first observed that the OCIJ relied exclusively on the Tadić Appeal
Judgment to confirm the doctrine’s customary status and agreed with the Defence
that the OCIJ Order on the application of JCE is ‘insufficiently reasoned in this
respect.’61 Accordingly, the Chamber proceeded to conduct an independent analy-
sis on this issue which resulted in the first-ever judicial reassessment of the author-
ities cited in Tadić. As a point of departure, the judges defined the notion of
customary international law by holding that:
when determining the state of customary international law in relation to the existence of a
crime or a form of individual responsibility, a court shall assess existence of “common,
consistent and concordant” state practice, or opinio juris meaning, that what States do and
say represents the law.62
The Chamber then proceeded to review the customary status of the ‘basic’ and
‘systemic’ forms of JCE. It first referred to two World War II-era instruments that
were not examined in the Tadić Appeal Judgment and that, in its view, offer firm
support for these two categories of the doctrine: Article 6 of the Charter of the
International Military Tribunal at Nuremberg (‘IMT Charter’) and Article II(2) of
Control Council Law No.10.63 The Chamber explained that the former contained a
58Shahabuddeen 2011, at 470–471; Karnavas 2010, at 475–479.

59Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed during the Period of Democratic Kampuchea (as last amended
on 27 October 2004), 10 August 2001, Article 2. (emphasis added).
61Ibid., §§ 57, 73.
62Ibid., § 53.
63Ibid., § 57.
214 L. Yanev
provision that defined the liability of persons ‘participating in the formulation or

execution of a common plan or conspiracy’64 and the latter specifically recognized
a form of liability applicable to individuals ‘connected with plans or enterprises
involving the [commission of crimes]’.65 The judges’ analysis at this point seemed
to be somewhat cursory: they were alluding to the linguistic similarities between
the text of these provisions and the modern joint criminal enterprise doctrine to
find that these instruments present early codifications of JCE. The situation is,
however, more nuanced: it has been argued, for instance, that the IMT Charter and
Control Council Law No.10 employed a unitary model of criminal participation
and, therefore, cannot support the conclusion that JCE is established under cus-
tomary international law as a form of co-perpetration liability.66 Others have sub-
mitted that the cited provision of the IMT Charter in fact referred to a notion that
is materially distinct from JCE: the Pinkerton conspiracy doctrine.67 It should also
be pointed out that when the Chamber subsequently proceeded to review a number
of Nuremberg-era judgments that applied the ‘common purpose/design’ doctrine,
it did not seek to identify whether the above-cited articles were in fact specified by
those tribunals as the legal basis for the application of this concept.68 Rather, the
judges proceed on the assumption that these judgments indeed provided an author-
itative interpretation of the identified provisions in the above two legal
instruments.69
Aside from the IMT Charter and Control Council Law No.10, the Pre-Trial
Chamber also reviewed the content of the eight cases cited in Tadić to affirm the
customary status of JCE I and JCE II liability, and further identified and examined
two additional cases which it considered to be particularly instructive in this
64Article 6, Charter of the International Military Tribunal—Annex to the Agreement for

the prosecution and punishment of the major war criminals of the European Axis (“London
Agreement”), United Nations, 8 August 1945, reprinted in Trial of the Major War Criminals
before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946. Vol. I.
(Nuremberg, 1947), at 11.
65Article II(2)(d), Control Council Law No. 10, Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity, December 20, 1945, Official Gazette Control
Council for Germany 50–55 (1946), re-printed in Taylor, Telford. Final Report to the Secretary
of the Army on the Nuernberg War Crimes Trials under Control Council Law. No 10. Rep.
(Washington D.C., 15 August 1949), at 250–253 (Appendix D).
66Olásolo has more generally argued that, ‘the statutory framework of the IMT and IMTFE
Charters has very little to do with the notion of co-perpetration based on joint criminal enterprise
as elaborated by the case law of the Ad hoc Tribunals.’ Olásolo 2009, at 212–213.
67G. Fletcher, Amicus Curiae Brief of Specialists in Conspiracy and International Law in
Support of Petitioner (Conspiracy—Not a Triable Offense), at 14, 20–21, filed in Hamdan v.

Rumsfeld, 548 U.S. 557 (2006).
68Many scholars see the use of the ‘common purpose/design’ notion by British and American
tribunals in Occupied Germany as derived from common law, rather than as being particularly
based on an interpretation of the relevant provisions of the IMT Charter or Control Council Law
No.10. See e.g. Karnavas, supra note 53, at 486–487; Steer, 2010, at 301–302.
69ECCC May 2010 JCE Decision, supra note 9, § 60.
respect: the Justice and the RuSHA trials brought before the US Military Tribunals
in Nuremberg.70 The judges acknowledged that these two cases do not contain any
explicit reference to the term ‘joint criminal enterprise’ but nevertheless found that:
the legal elements applied by the Military Tribunal to determine the liability of the
accused are sufficiently similar to those of JCE … and constitute a valid illustration of the
state of customary international law with respect to the basic form and systemic form of
JCE (JCE I & JCE II).71
The Chamber’s analysis on this point echoed earlier ICTY and ICTR decisions
that discussed the relevance of the RuSHA and Justice cases to the JCE theory and
also finds support in academia.72 Indeed, as recently as 2014, the ICTY Đorđević
Appeals Chamber confirmed that these cases are indicative of the customary
nature of JCE because they ‘found the defendants criminally liable … on a basis
equivalent to that of joint criminal enterprise.’73 Thus, on the basis of the sources
referred to in Tadić and its additional research on the IMT Charter, Control
Council Law No.10 and the Justice and RuSHA judgments, the judges found that
‘JCE I and JCE II were recognized as forms or responsibility in customary inter-
national law at the time relevant for Case 002.’74
If up to this point the Pre-Trial Chamber’s analysis on JCE liability did not
deviate from the established international jurisprudence on this theory, its subse-
quent review of the customary status of the ‘extended’ form of JCE was ground-
breaking. The Chamber first found that the IMT Charter and Control Council Law
No.10 ‘do not specifically offer support for the extended form of JCE (JCE III).’75
Interestingly, the judges did not provide any reasoning for this finding. One possi-
ble explanation could be that since JCE III has a materially distinct legal frame-
work which, unlike JCE I and its variation JCE II, ascribes liability for crimes
committed outside the common purpose, the judges thought that this rationale was
excluded from the relevant provisions of these two international instruments.
Some have argued, however, that such an interpretation would not be supported by
the plain text of the relevant provision in Article 6 IMT Charter because it stated
that those ‘participating in the formulation or execution of a common plan or con-
spiracy are … responsible for all acts performed by any persons in execution of
such plan.’76 Be that as it may, the Pre-Trial Chamber proceeded to also reject the
70Ibid., §§ 62–68.
71Ibid., § 65.
72Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the
Crime of Genocide, Rwamakuba (ICTR-98-44-AR72.4), Appeals Chamber, 22 October 2004,

§§ 15–23; Brđanin Appeal Judgment, supra note 2, §§ 393, 399–404. See also, Heller 2011, at
389–391. For an opposite view, challenging the relevance of these cases for the JCE doctrine, see
Olásolo 2009, at 207–212.
73Đorđević Appeal Judgment, supra note 2, §§ 34, 42.
75Ibid., § 78.
76Clarke 2011, at 841–843.
216 L. Yanev
finding that the two post-World War II cases cited in Tadić in support of JCE III
liability—i.e. the Borkum Island and the Essen Lynching case—provide evidence
for the customary status of this variant of the theory. According to the judges,
since no reasoned judgments were handed down in these two cases, ‘one cannot be
certain of the basis of liability actually retained by the military courts.’77 They
examined anew the known facts of these cases and the arguments of the parties,
and concluded that the inferences that Tadić drew on the mode of liability used to
confirm the guilty verdicts were not the only ones available on a reasonable inter-
pretation. In the Chamber’s view, this makes reliance on these two cases as proof
of the customary nature of JCE III problematic.78 Finally, the judges declined to
consider the 11 Italian cases which the Tadić Appeals Chamber cited as evidence
of World War II jurisprudence that ‘indisputably applied the notion that a person
may be held criminally responsible for a crime committed by another member of a
group and not envisaged in the criminal plan.’79 These trials were brought before
the Italian Supreme Court in the late 1940s but the Pre-Trial Chamber held that
they do not constitute proper proof of JCE III’s customary status because they
were decided by domestic courts which applied domestic Italian law and as such
do not constitute international jurisprudence.80 On the basis of this analysis, the
judges found that the authorities cited in Tadić, and respectively in the OCIJ
Decision, do not sufficiently prove that the ‘extended’ form of JCE had become
firmly established in customary international law at the time relevant to Case 002.
There is one more finding regarding JCE III liability that the Pre-Trial Chamber
made in its Decision and should be noted here. The judges considered the question
whether this variant of the theory could be defined as a general principle of law
applicable in ECCC proceedings. It was observed that this would require finding
that most, if not all, legal systems in the world adopt the legal framework of JCE
III and the judges noted that the Tadić Appeals Chamber itself conceded that states
have treated in different ways the liability of individuals for the incidental crimes
of a common purpose.81 Instead of concluding that JCE III is not a general princi-
ple of law, however, the Chamber held that it does not have to make a finding on
this matter because in any case JCE III had no underpinning in Cambodian law
and was thus not foreseeable to the accused in 1975–79, which would make its
application contrary to the nullum crimen sine lege principle.82 At first sight this
reasoning might appear to contradict the judges’ earlier finding that, in accordance
with the test established by the ICTY, the legality principle does not require
domestic legislation that criminalizes the said conduct. Gustafson has suggested in
this respect that the judges’ contention here seemed to be that that it was either

78Ibid., § 79–81.
79Tadić Appeal Judgment, supra note 1, § 218.
81Ibid., §§ 84–86.
82Ibid., § 87.
customary law or Cambodian law that could have put the accused on notice of the
existence of JCE III liability and since they found that neither of the two recog-
nized this concept, they concluded that its application would be contrary to the
principle of legality even if this particular form of responsibility was a general
principle of law.83
9.3.2.2 The September 2011 Trial Chamber’s Decision on JCE
Pursuant to the Pre-Trial Chamber’s May 2010 JCE Decision, the Closing Order in
Case 002 excluded the ‘extended’ category of JCE from the charged modes of lia-
bility and, thus, only JCE I and JCE II liability were alleged against the Accused.
Although the Co-Prosecutors did not appeal this decision, prior to the commence-
ment of the trial they nevertheless submitted a motion requesting the Trial
Chamber to change the legal characterization the facts in the Indictment so it could
consider JCE III as an alternative mode of liability in the case.84 The judges held
that doing so at this stage of the proceedings would not be prejudicial to the fair
trial rights of the Accused and proceeded to examine the substance of the
Co-Prosecutors’ motion, noting as they did that it was ‘substantially similar to that
previously [filed] before the Pre-Trial Chamber.’85
The Trial Chamber did not revisit the question on the applicability of JCE I and
JCE II in ECCC proceedings. It briefly pointed out that these two variants of the
doctrine had already been endorsed in the Pre-Trial Chamber’s JCE Decision and
in the Case 001 Trial Judgment (analyzed further below) and concluded that their
adoption at the ECCC ‘constitutes settled law within the ECCC jurisprudence.’86
It is the disputed customary status of JCE III liability that merited more attention
from the Trial Chamber. The judges concurred with the Pre-Trial Chamber’s anal-
ysis of the Borkum Island and the Essen Lynching cases, concluding that the lack
of reasoned judgments makes it impossible to ascertain the mode of liability on
which the accused were convicted. They briefly restated some of the known facts
in Borkum Island and held that ‘the basis for conviction in this case could have
been JCE III [but] it might have equally been some other form of responsibility’.87
In much the same spirit, the Essen Lynching case was viewed as equally inconclu-
sive for determining the customary status of the ‘extended’ form of JCE.88 The
Chamber’s analysis did not stop here as it also examined several other cases which
the STL had recently cited as additional support for the existence of JCE III liabil-
ity under customary international law: the United States v. Hans Ulrich and Otto
83Gustafson 2010, at 1329.

84ECCC September 2011 JCE Decision, supra note 10, §§ 2–6.
85Ibid., §§ 24–26.
86Ibid., § 22.
87Ibid., § 30.
88Ibid., § 31.
218 L. Yanev
Merkle and the United States v. Hans Wuelfert and others.89 Both of these cases
belong to the so-called ‘Dachau trials’ which concerned the responsibility of indi-
viduals who were implicated in the Dachau concentration camp. The Chamber did
not comprehensively analyze the charges in these cases or the parties’ submis-
sions: it only explained that in both cases the accused were the owners of factories
who used Dachau inmates for slave labour and were consequently held liable for
the mistreatment of the camp’s prisoners. The entire review of these two cases was
contained in a single paragraph, in which the judges also emphasized that the legal
basis for the convictions was nowhere explicitly stated, thus concluding that:
These cases appear to support JCE I or JCE II liability because the Accused were part of
the concentration camp apparatus and personally participated in the mistreatment of pris-
oners. These crimes do not necessarily support guilt based upon JCE III: i.e. responsibility
for crimes which were outside the scope of the common plan but which were nonetheless
the natural and foreseeable consequence of it.90
The nature of the ‘Dachau trials’ and the substance of the identified two cases
will be separately analyzed further below. At this point, it suffices to say that,
having considered these additional authorities, the Trial Chamber still confirmed
the conclusion that JCE III had not crystalized as a norm of customary interna-
tional law at the time relevant to Case 002.91
Aside from this brief discussion on the customary status of the ‘extended’ vari-
ant of JCE, the September 2011 JCE Decision also contains several other notable
findings on the scope and nature of this mode of liability. First, unlike the Pre-Trial
Chamber, the Trial Chamber also made a pronouncement on whether JCE III lia-
bility constituted a general principle of law during 1975–79. Noting the test
defined in Tadić for identifying such rules, i.e. ‘that most, if not all, countries
adopt the same notion’, the judges researched the laws of seven common and civil
law domestic jurisdictions, found that they considerably diverged in their approach
to this kind of liability and, thus, concluded that it could not be regarded as a gen-
eral principle of law.92 The second distinct finding which the Trial Chamber made
concerned a submission by the Defence that the OCIJ had defectively pled the
nature of the common purpose underlying the alleged JCE. In particular, the
Co-Investigative Judges stated in the Closing Order that:
The common purpose of the CPK leaders was to implement rapid socialist revolution …
in Cambodia through a “great leap forward” and to defend the Party against internal and
external enemies, by whatever means necessary. The purpose itself was not entirely
89United States of America v. Hans Ulrich and Otto Merkle, (Case No. 000-50-2-17), General
Military Government Court of the United States at Dachau, Germany, 12–22 November 1946;
United States of America v. Hans Wuelfert and others, (Case No. 000-50-2-72), General Military
Government Court of the United States at Dachau, Germany, 12–17 March 1947.
90ECCC September 2011 JCE Decision, supra note 10, § 34.
91Ibid., §§ 35, 38.
92Ibid., § 37.
criminal in nature but its implementation resulted in and/or involved the commission of
crimes within the jurisdiction of the ECCC.93
Ieng Sary’s Defence submitted that this formulation of the common purpose
element essentially alleged that the Accused ‘participated in a non-criminal com-
mon plan that merely resulted in the commission of crimes. Such an allegation, if
proven, does not support a prima facie case of JCE I.’94 The Trial Chamber disa-
greed with this challenge and, citing exclusively jurisprudence form the SCSL,
explained that the other international tribunals have consistently held that the com-
mon plan, design or purpose of a joint criminal enterprise ‘must either have as its
objective a crime or contemplate the crimes as the means of achieving this objec-
tive.’95 Accordingly, the judges held that that the pleading of JCE I liability in the
Closing Order was valid because:
[a]lthough the plain language of this paragraph asserts that the purpose of the common
plan was not entirely criminal, it clarifies that its implementation involved the commission
of crimes within the jurisdiction of the ECCC. Further, the subsequent paragraph of the
Closing Order indicates a number of criminal activities that “resulted in” or “were com-
mitted by members and non-members of the JCE.” The language makes it clear that the
plan involved the commission of criminal acts by members of the JCE.96
The Trial Chamber’s reasoning at this point is open to much the same criticism
which has long been directed at the SCSL’s interpretation of JCE’s common pur-
pose/design/plan element.97 In particular, it is true that that the Tadić Appeal
Judgment and the ICTY/R subsequent case law has firmly established that the
common plan underlying a joint criminal enterprise must ‘amount to or involve the
commission of a statutory crime.’98 This allows applying the doctrine not solely to
cases where the common purpose aims at the commission of a crime, but also to
cases where it aims at a non-criminal objective which, however, is to be achieved
through criminal means. For instance, the Šainović et al. Indictment alleged that
the accused participated in a JCE the purpose of which was not strictly criminal: it
sought ‘the modification of the ethnic balance in Kosovo in order to ensure contin-
ued Serbian control over the province.’99 It was then further stated that this pur-
pose was ‘to be achieved by criminal means… that included deportations,
murders, forcible transfers and persecutions directed at the Kosovo Albanian
93Ibid., § 18.
94Ibid, § 8.
95Ibid., §§ 17. (emphasis added).
96Ibid., §§ 19.
97Meisenberg 2014, at 80–90. Jain 2014, at 66–67, 72; Jordash and Van Tuyl 2010, at 600.
98Đorđević Appeal Judgment, supra note 2, §§ 116, 120 (emphasis added). See also Tadić Appeal
Judgment, supra note 1, § 227; Judgment, Šainović and others (IT-05-87-A), Appeals Chamber,
23 January 2014, § 609; Brđanin Appeal Judgment, supra note 2, § 364; Judgment, Munyakazi
(ICTR-97-36A-A), Appeals Chamber, 28 September 2011, § 160.
99(Redacted) Third Amended Indictment, Šainović and others (IT-05-87-PT), 21 June 2006, § 19.
220 L. Yanev
population’.100 Here lies an important point which the Closing Order in Case 002
misses: in such scenarios where the common purpose has a non-criminal goal,
JCE law requires that it necessarily involved the commission of a crime (or
crimes) as the means agreed amongst the accused to achieve that goal.101 This is
why they are said to share a common intent to commit the said crimes. By con-
trast, the Closing Order, and the Trial Chamber affirming its validity, defined a
non-criminal common purpose (viz. to implement a rapid socialist revolution in
Cambodia and defend the Party against enemies) that ‘resulted in’, or ‘contem-
plated the’, commission of crimes in the course of pursuing the said objective.102
This is a broader formulation which does not indicate that the Accused agreed to
commit the charged crimes as the necessary means for achieving their objective,
but rather suggests that they foresaw a possibility that their non-criminal common
purpose may trigger the commission of crimes. This pleading of a JCE’s common
purpose element is flawed: there could be neither JCE I/II, nor JCE III responsibil-
ity if the underlying common plan is not intrinsically criminal in that it lays out
the commission of a specific crime, which the accused explicitly or implicitly
agree to commit either as the end goal of the JCE, or as the necessary means to
achieve it. Jain has thus pointed out that the formula pled in the Closing Order in
Case 002, which the Trial Chamber also appears to have adopted in its September
2011 JCE Decision, does not satisfy the shared intent element of JCE I and makes
it unclear what mens rea the Accused possessed towards the crimes which their
non-criminal common purpose ‘resulted in’.103
9.3.2.3 The Case 002/01 Trial Judgment
On 7 August 2014, the ECCC Trial Chamber delivered its much anticipated judg-
ment in what had become Case 002/01.104 In the interest of reaching a timely judg-
ment and in view of the length of the Closing Order, the judges decided to severe
Case 002 in two separate trials and the scope of the first one, i.e. Case 002/01, was
then limited to the charges concerning crimes against humanity committed during:
(i) the course of movement of the Cambodian population; and (ii) the executions of
Khmer Republic officials at the Tuol Po Chrey execution site.105 These two distinct
100Ibid.
101Olásolo 2009, at 274–275; Milanovic 2007, at 1146; Boas et al. 2008, at 132; Meisenberg
2014, at 85; Jordash and Van Tuyl 2010, at 600. See also Krajišnik Appeal Judgment, supra note
2, § 188.
102See supra note 96; Closing Order, Nuon Chea and others (002/19-09-2007-ECCC-D427), 15
September 2010, §§ 1524–1526.

103Jain 2014, at 72.
104Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August
2014.
105Ibid., §§ 5, 7.
factual allegations formed part of the common criminal purpose that was alleged to
have existed between the accused.
The Trial Chamber’s findings on the applicable law on JCE responsibility
largely restated the conclusions it reached in the September 2011 JCE Decision.
The judges reaffirmed that JCE I and JCE II liability were forms of commission
liability recognized under customary international law at the time relevant to Case
002 and also that JCE III did not exist as an international custom between 1975
and 1979.106 The legal elements of the ‘basic’ and the ‘systemic’ category of JCE
were then briefly stated in a manner consistent with the UN ad hoc Tribunals’
jurisprudence. The Chamber also took notice of the ICTY case law affirming that
JCE participants can be held liable for crimes that were physically committed by
individuals who were not members of the common purpose but were used by the
JCE members to commit the concerted crimes.107 The latter finding was important
for the purposes of Case 002, given that all its Accused were senior officials of the
Khmer Rouge regime who used soldiers and other non-members of the joint crimi-
nal enterprise to commit the indicted crimes. Lastly, the Trial Chamber’s brief doc-
trinal discussion on the legal framework of JCE also touched upon the issue of the
scope of the common purpose element. The Defence once again argued that the
Closing Order’s formulation of the alleged common purpose violated the require-
ment that the purpose must be intrinsically criminal in that it described a non-
criminal objective (i.e. implementing ‘a socialist political revolution in
Cambodia’) which only later happened to result in the commission of crimes.108
Unsurprisingly, the judges dismissed this objection as repetitive of the one raised
earlier in the September 2011 JCE Decision and affirmed their conclusion that ‘a
common purpose must either have a crime as its objective or contemplate the com-
mission of crimes as the means of achieving an objective.’109 The problems with
this line of reasoning became apparent when the Chamber then proceeded to apply
the JCE theory to the established facts of the case.
Upon examining the evidence in the case, the judges found that:
at the latest, by June 1974 until December 1977, there was a plurality of persons who
shared a common purpose to “implement rapid socialist revolution through a ‘great leap
forward’ and defend the Party against internal and external enemies, by whatever means
necessary”. Members of the Standing and Central Committees, government ministers, and
Zone and Autonomous Sector secretaries, including NUON Chea, KHIEU Samphan, POL
Pot, IENG Sary, SON Sen [and others] were part of this group with the specified common
purpose. … This common purpose was not in itself necessarily or entirely criminal. The
Closing Order, however, alleges that participants implemented the common purpose
through Population Movement Policy … and Targeting Policy … which resulted in and/or
involved crimes.110
106Ibid., § 691.
107Ibid., § 693.
108Ibid., § 695.
109Ibid., § 696.
110Ibid., §§ 777–778.
222 L. Yanev
The Population Movement Policy and the Targeting Policy were, thus, the
means used to further the non-criminal objective of the common purpose. Broadly
speaking, the former policy aimed to rebuild and transform Cambodia’s economy
by relocating on a mass scale people from cities and villages and forcing them to
join agricultural production cooperatives. It was also considered that by evacuating
the urban population, the so-called ‘New People’ (e.g. intellectuals, bourgeoisie,
former government officials) would be neutralized as a threat to the regime since
they will be re-educated and possibly allocated as a work force in agriculture and
infrastructure.111 Importantly, the Trial Chamber observed that this plan to forcibly
transfer populations from villages and cities ‘did not make any provision for the
well-being or the health of those being moved, in particular the vulnerable’112 and
noted that both Accused acknowledged that ‘the Party was aware that the people
would sacrifice and face hardship’ and that ‘many suffered or even died due to ill-
ness or starvation.’113 At its face value, the judges’ findings on the Population
Movement Policy present the existence of a common plan to commit the crime of
forcible transfer where a series of other, unconcerted yet foreseeable crimes
resulted from the implementation of that plan. Notable in this respect are the
Chamber’s concluding legal findings on this policy, where it held that:
the forced transfers committed by Khmer Rouge officials and soldiers during movement
of population… were undertaken pursuant to the Party leadership’s express instructions,
decisions and policy. Further, they were carried out as part of a pattern of forced transfers,
under inhumane conditions and without regard for the well-being or the health of the peo-
ple being moved. Murders and attacks against human dignity resulted from the inhumane
conditions of the transfers, the terror-inducing acts of Khmer Rouge cadres and the exer-
cise of force.114
To be sure, such scenarios have often been considered at the ICTY, where they
are dealt with by charging the accused with JCE I liability for the crime of forcible
transfer or deportation and with JCE III liability for all those additional crimes that
were not specifically agreed upon as part of the plan but were a natural and fore-
seeable consequence of its execution.115 However, in light of its rejection of the
‘extended’ form of JCE, the Trial Chamber could not have approached the situa-
tion in this manner. Instead, it adopted a formula which practically dissolved the
border between JCE I and JCE III responsibility: it held that the Population
Movement Policy ‘resulted in and/or involved the commission of crimes, includ-
ing forced transfers, murders, attacks against human dignity and political persecu-
tion’,116 and then found the Accused responsible for all these crimes under the
‘basic’ variant of JCE. One way in which the Chamber could have avoided such a
111Ibid., §§ 782–788.
112Ibid., § 788.
113Ibid., § 785.
114Ibid., § 805.
115Boas et al. 2008, at 42–43.
116Judgment, supra note 104, § 804. (emphasis added).
conflation would have been to explicitly find that forcible transfer was the original
crime of the common purpose and that the subsequent continued commission of
the other, ‘expanded’ crimes eventually added them within the scope of the com-
mon purpose: a line of reasoning that has been used and adopted in the ICTY
jurisprudence.117 This approach would have required the judges to also make find-
ings as to
(1) whether [the Accused] were informed of the [additional] crimes, (2) whether they did
nothing to prevent their recurrence and persisted in the implementation of this expansion
of the common objective, and (3) when the expanded crimes became incorporated into the
common objective.118
Once it is established when the expanded crimes became integrated as part of

the common design or purpose, the Accused could then be convicted with JCE I
liability for the commission of these crimes after the said point of time. The initial
surplus crimes which took place prior to that point, however, could only be dealt
with under the JCE III paradigm (or, alternatively, under one of the accessorial
modes of liability).
The Trial Chamber’s findings on the scope of the Targeting Policy, on the other
hand, are much less controversial. The judges held that in order to achieve the
common plan to implement a socialist revolution in Cambodia and protect the
Party from all its enemies, ‘the policy to target former Khmer Republic officials
was expressly ordered and affirmed by the Party leadership.’119 The Chamber
referred to evidence affirming that the killing of such enemies was inherent to the
Targeting Policy and that the Party leaders celebrated as a success the mass execu-
tions of Khmer Republic officials.120 As the charges in the case were limited to the
executions at Tuol Po Chrey, the judges ultimately found that, underlying the com-
mon plan to implement a socialist revolution in Cambodia, ‘there was a policy to
target former Khmer Republic officials which involved the murder and extermina-
tion of former Khmer Republic officials at Tuol Po Chrey.’121 This finding on the
scope of the Targeting Policy clearly identifies the crimes of murder and extermi-
nation as the necessary means agreed by the Party leaders to achieve their non-
criminal common purpose.
Both Nuon Chea and Khieu Samphan were ultimately found guilty under the
‘basic’ form of JCE for committing the crimes against humanity of: (i) murder,
political persecution and other inhumane acts (comprising forced transfer and
attacks against human dignity) during movement of population; and (ii) murder
and extermination at Tuol Po Chrey.122 The judges found that Nuon Chea, who
117Krajišnik Appeal Judgment, supra note 2, §§ 162–163, 170–177.

118Ibid., § 171.
119Judgment, supra note 104, § 817.
120Ibid., §§ 815–818.
121Ibid., § 835.
122Ibid., §§ 877, 996.
224 L. Yanev
was Deputy Secretary of the Party and was second only to Pol Pot, participated in
the said common purpose with its underlying policies, and that ‘his role in the
propaganda campaign … and training of cadres … contributed substantially to the
dissemination and implementation of the common purpose.’123 As for his mens
rea, the judges referred to Nuon Chea’s key position in the Party leadership, his
active participation in the meetings approving the forcible transfer of population
and his support for a ‘class struggle’ against the Khmer Republic officials as evi-
dence that he shared with the other JCE members the intent to commit all of the
above-stated crimes.124
Regarding Khieu Samphan, the Chamber noted that he held various positions of
authority during the DK regime and also that he played a central role in formulat-
ing and disseminating the content of the common purpose and its policies, thereby
significantly contributing to the JCE.125 The judges then described the intent of the
Accused in relation to the JCE crimes as follows:
From 1969, when he joined the Party, he participated in meetings, congresses and confer-
ences, where the common purpose was affirmed, developed and the policies to implement
it were decided upon, including the class struggle against the ‘New People’, elimination
of all elements of the former Khmer Republic, forced urban evacuations and movements
between rural areas. KHIEU Samphan knew of the substantial likelihood that crimes
would result from implementation of these policies. He knew that these policies did in fact
result in and/or involve the crimes committed in the course of phases one and two of pop-
ulation movements and at Tuol Po Chrey. He also had further notice of the crimes after
their commission. Despite this knowledge, he continued to contribute to and approve the
progress of the democratic and socialist revolutions.126
To be sure, knowledge of the actual commission of crimes and continued par-

ticipation in the said common purpose provides a sufficient basis to infer, as the
Trial Chamber did, that the Accused shared the intent to commit these crimes.127
However, the very characterization of the Accused’s initial intent as that of a per-
son who ‘knew of the substantial likelihood the crimes would result’ from the exe-
cution of the said policies is symptomatic of the judges’ ambivalent treatment of
the scope of the alleged common purpose, particularly vis-à-vis the Population
Movement Policy. If Khieu Samphan was indeed instrumental in formulating the
content of the said policies and they were designed from the start to necessarily
involve the commission of all the above-said crimes, it would clearly be a non
sequitur to describe him as someone who was only aware of a risk that these poli-
cies could result in the commission of crimes. Rather, such mens rea signals a dif-
ferent type of situation: one where the Accused participated in the formulation of a
common purpose to commit the crime X (forcible transfer) and the execution of
123Ibid., §§ 861–862, 874.

124Ibid., §§ 875–876.
125Ibid., §§ 961–962, 972, 976.
126Ibid., § 994 (emphasis added).
127Ibid., § 995. For jurisprudential support for this kind of inference, see Krajišnik Appeal
Judgment, supra note 2, § 200.

that plan resulted in the commission of additional crimes Y and Z (murder, politi-
cal persecution etc.), which he did not directly intend but for which he knew there
was substantial likelihood to also be committed. As already pointed out, this is
where the JCE I/JCE III dichotomy is normally used and where the Trial Chamber,
at least in relation to the Policy Movement Policy, conflated these two paradigms.
It adopted a very broad formula for defining the scope of the common purpose ele-
ment, pursuant to which it added in the same basket specifically agreed upon
crimes and crimes that would normally be defined as incidental or additional to the
plan (i.e. the ‘resulted in and/or involved’ rubric). Then, regarding JCE I’s mens
rea element—which requires shared direct intent to commit each of the JCE
crimes—the judges held that it was also satisfied because, during the execution of
the JCE, the Accused: (i) became aware of the actual commission of the above-
said crimes and (ii) nonetheless continued his participation in the JCE. This rea-
soning is erroneous: such subsequently formed shared intent does not compensate
for the fact that when the common purpose was first agreed upon, and then in the
early stage of its execution, at least some of its crimes did not seem to be directly
intended. Rather, the Chamber found that the Accused only ‘knew of the substan-
tial likelihood that crimes would result from’ the execution of the said policies. In
such scenarios, what ought to be done is to determine when the crimes that were
initially just foreseeable actually became integrated as an inherent part of the com-
mon purpose—and respectively the Accused developed a shared intent to also
commit these crimes—and then from this specific point onwards hold him liable
under JCE I for their commission. To this end, the ICTY Krajišnik Appeal
Chamber explained that without such a determination, the ‘basic’ variant of JCE
cannot be properly applied to convict an accused for such crimes.128
9.3.3 Case 001: The Duch Trial Judgment
Unlike Case 002, the trial against Kaing Guek Eav alias Duch (i.e. Case 001) did
not generate an extensive jurisprudence on the JCE theory. In fact, the Closing
Order even excluded this mode of liability pursuant to a finding by the Pre-Trial
Chamber that the Co-Prosecutors had not properly pled it.129 There were no deci-
sions delivered by the Pre-Trial Chamber that contained findings on the scope and
applicability of JCE liability in ECCC proceedings. It should also be noted that
while Case 001 is presently the only one for which an appellate judgment has been
handed down by the Supreme Court Chamber,130 none of the grounds of appeal
128Krajišnik AppealJudgment, supra note 2, § 173.

2010 (hereafter Duch Trial Judgment), § 488.
130Duch Appeals Judgment, supra note 56.
226 L. Yanev
actually concerned the notion of JCE, which is why the Duch Trial Judgment
remains today the most significant Case 001 document to address this mode of
liability.
The Accused was a Deputy and then Chairman of the S-21 security cen-
tre that was tasked with interrogating and executing perceived opponents of the
Khmer Rouge regime between 1975 and 1979. In their final trial submission, the
Co-Prosecutors alleged that the Accused committed various crimes against human-
ity and war crimes:
as a participant in a JCE. The JCE came into existence on 15 August 1975 when Son Sen
instructed In Lorn alias Nat, and the Accused to establish S-21. The JCE existed until at
least 7 January 1979 when the DK regime collapsed and S-21 was abandoned. The pur-
pose of the JCE was the systematic arrest, detention, ill-treatment, interrogation, torture
and execution of ‘enemies’ of the DK regime by committing the crimes described in this
Submission. … All crimes occurring in S-21 were within the purpose of this JCE.131
The Trial Chamber began its analysis by acknowledging that JCE liability was
not pled in the Amended Closing Order but then used its authority to change the
legal characterization of the facts contained in this document so as to include the
notion in the charges against the Accused.132 The judges then proceeded to sum-
marily describe the three categories of the doctrine and explain their constituent
legal elements, as stated in the jurisprudence of the UN ad hoc Tribunals.133 The
applicability of JCE in ECCC proceedings was also discussed, albeit quite briefly
as the Accused did not submit a general challenge on this point. The Chamber
cited the IMT Charter and Control Council Law No.10, listed in a footnote several
of the Nuremberg-era judgments discussed in the Tadić Appeal Judgment and
included a reference to the Pre-Trial Chamber’s analysis in the May 2010 Decision
on JCE, to ultimately confirm that ‘the systemic form of joint criminal enterprise,
along with the basic form from which it derives, were part of customary interna-
tional law during the 1975 to 1979 period.’134 Notably, however, the judges explic-
itly declined to enter findings on the customary status of JCE III liability, stating
that this was unnecessary as the Co-Prosecutors had indicated that they will only
rely on JCE I and JCE II liability in this case.135
The application of the JCE theory to the established facts in Case 001 was also
much less controversial than in Case 002 and was in fact contained in less than
two pages of the Judgment. The Trial Chamber found that the criminal nature of
S-21 ‘clearly resonate[d] with the systemic form of joint criminal enterprise’ and
concluded that the purpose behind this concerted system of ill-treatment was to
unlawfully detain, interrogate using torture and execute domestic and foreign
131Duch Trial Judgment, supra note 129, § 501 (fn. 879).

132Ibid., §§ 492–503.
133Ibid., §§ 507–509.
134Ibid., §§ 505, 512.
135Ibid., § 513.
nationals perceived to be enemies of the regime.136 The Accused, who the judges
found to have been one of the founders of S-21, was the Deputy, and subsequently
the Chairman and Secretary of the camp. As such, he refined and directed the
operations in S-21 and the Chamber concluded that he:
was deeply enmeshed in this criminal system, and contributed substantially to its imple-
mentation and development, including by ensuring the arrest and detention of some S-21
staff, and by being physically present during the arrest of certain notable detainees137
As for the mens rea requirement for incurring JCE II responsibility, the
Chamber found, without further elaboration, that ‘the Accused knew of the crimi-
nal nature of the S-21 system and that he acted with the intent to further its crimi-
nal purpose’, as well as that he possessed a specific intent to discriminate against
S-21 detainees on political grounds.138 Although these conclusions on the
Accused’s mens rea are quite cursory, it should be pointed out that his knowledge
of the specific crimes that took place at the S-21 camp was not a contested issue as
he in fact provided the Trial Chamber with substantial information of their com-
mission and accepted limited responsibility.139 Ultimately, the judges held Duch
liable under the ‘systemic’ category of JCE for virtually all the crimes charged in
the Amended Closing Order, in particular:
for the following offences as crimes against humanity: murder, extermination, enslave-
ment, imprisonment, torture, persecution on political grounds, and other inhumane acts; as
well as for the following grave breaches of the Geneva Conventions of 1949: wilful kill-
ing, torture and inhumane treatment, wilfully causing great suffering or serious injury to
body or health, wilfully depriving a prisoner of war or civilian of the rights of a fair and
regular trial, and unlawful confinement of a civilian.140
Some confusion may be engendered by the manner in which the Trial Chamber
found the Accused liable for all these crimes under the ‘systemic’ category of JCE.
In particular, the judges clearly defined S-21 as a security centre established for a
criminal purpose, namely to unlawfully detain, interrogate (torture) and execute
perceived enemies of the regime. This finding was then used as a basis to ascribe
JCE II liability to the Accused for all sorts of crimes that were found to have been
committed at the camp during the indicted period. This approach is debatable
because, as clearly explained in the ICTY jurisprudence on JCE II liability, not
each and every crime that is committed in a system of ill-treatment can automati-
cally be regarded as part of its underlying common criminal purpose and thus as
136Ibid., § 514.
137Ibid.
138Ibid. § 515. Judge Cartwright wrote a dissenting opinion disagreeing with the majority’s find-
ing that Duch had a specific discriminatory intent, necessary for establishing the crime of perse-
cution. Ibid., §§ 397–399.
139Ibid. §§ 606, 609.
140Ibid. § 516.
228 L. Yanev
imputable to every participant in the enterprise.141 Even in such institutions,

crimes can be committed that are unconcerted and additional to their identified
criminal purpose. To this end, the ICTY Appeals Chamber pointed out in the
Krnojelac case that when dealing with concentration/detention camp cases, the
right approach is to clearly define the ‘common denominator’ of crimes that char-
acterize the said system and then limit JCE II liability strictly to these crimes:
the Appeals Chamber finds that the most appropriate approach in this case would have been
to limit the definition of the common purpose within the KP Dom “system” to the commis-
sion of those crimes which, given the context and evidence adduced, could be considered as
common to all the offenders beyond all reasonable doubt. This amounts to selecting the
common denominator discussed above. As for the crimes which … albeit committed at the
KP Dom clearly go beyond the system’s common purpose, liability may be imputed to a
person participating in the system for crimes of this kind committed by another participant if
it was foreseeable that a crime of this sort was likely to be committed by that other partici-
pant and the former willingly took the risk (or was indifferent to it).142
If all the crimes of which Duch was convicted were, indeed, common to all the
S-21 participants (i.e. were the ‘common denominator’ of the criminal design), the
Trial Chamber’s determination on his JCE II liability would certainly be apposite.
However, some of the factual findings on the charged crimes would preclude such
a conclusion. Thus, for instance, the Chamber held that rape was committed at the
S-21 camp in relation to one incident where, in the course of interrogation, a staff
member had inserted a stick into a detainee’s vagina.143 The Accused reported the
incident to his superiors, reassigned the interrogator so he can no longer interro-
gate female detainees and appointed a female interrogation team for such situa-
tions.144 The judges found that the conduct of the said interrogator constituted the
crime of rape and, since it was committed as a component of torture, ultimately
characterized it as ‘rape as torture’.145 This isolated occurrence constitutes the
only judicially confirmed commission of rape at the S-21 camp in the entire
Judgment, and it is notable that when summarizing their conclusions on the
Accused’s criminal responsibility, the judges held him liable for inter alia ‘torture
(including one instance of rape)’.146 It is, however, quite evident that this crime of
rape went beyond the scope of the common purpose and while it may have been
foreseeable considering the circumstances, the Chamber’s findings clearly show
141Krnojelac Appeal Judgment, supra note 18, §§ 115–123; Kvočka and others Appeal
Judgment, supra note 2, §§ 85–86.
142Krnojelac Appeal Judgment, supra note 18, §§ 120–121.
143Duch Trial Judgment, supra note 129, § 246.
144Ibid.
145Ibid., § 366.
146Ibid. §§ 559, 567–568, 677.
that the Accused did not share the perpetrator’s intent to commit rape.147 Overall,
when defining the common purpose of S-21 as ‘a facility dedicated to the unlawful
detention, interrogation and execution of perceived enemies of the CPK’,148 the
judges’ analysis would have benefited from a more concerted explanation of how
each of the above-said specific crimes was an integral part of the said common
design, before imputing them all to the Accused via the ‘systemic’ type of JCE.
9.4 The Customary Status of JCE III Liability
Of all the above-identified notable aspects in the interpretation and applica-

tion of the JCE doctrine in ECCC’s jurisprudence, the Tribunal’s rejection of the
‘extended’ form of JCE stands outs as its most remarkable finding on this subject.
As already explained above, the Pre-Trial and Trial Chambers in Case 002 con-
cluded that JCE III liability was not recognized under customary international law
during the indicted period after finding that: (i) neither the IMT Charter, nor the
Control Council Law No. 10 established this notion; and (ii) all the Nuremberg-
era cases that have been cited by modern international tribunals in support of JCE
III lack reasoned judgments, thus making it impossible to determine what form of
criminal liability they actually applied to convict the accused. The present section
will assess the merit of this conclusion by reviewing the content of the said cases
and documents and providing additional research on the disputed legal basis of the
‘extended’ form of JCE under customary international law.
9.4.1 JCE III Liability in Nuremberg-Era Legislation
Article 6 of the IMT Charter established liability for persons ‘participating in the
formulation or execution of a common plan or conspiracy’149 and this notion was,
indeed, also echoed in Article II(2)(d) of the Control Council Law No.10, which
147The exact meaning of JCE II’s mens rea element has long been explained in topical ICTY case
law as requiring, just as JCE I liability, that the accused shared the intent to commit the crimes of
the ‘systemic’ JCE. See Judgment, Krnojelac (IT-97-25-T), Trial Chamber, 15 March 2002, § 78;
Judgment, Vasiljević (IT-98-32-T), Trial Chamber, 29 November 2002, § 64; Kvočka and others
Appeal Judgment, supra note 2, § 110; Krnojelac Appeal Judgment, supra note 18, §§ 84–109.
See also, Olásolo 2009, at 171; Cassese 2013, at 166.
149Article 6, Charter of the International Military Tribunal—Annex to the Agreement for
the prosecution and punishment of the major war criminals of the European Axis (‘London
Agreement’), United Nations, 8 August 1945, reprinted in Trial of the Major War Criminals
before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, Vol. I
(Nuremberg, Germany, 1947), at 11.
230 L. Yanev
recognized the liability of persons ‘connected with plans or enterprises involving

the [commission of crimes]’.150 In its May 2010 Decision, the ECCC Pre-Trial
Chamber found that while these provisions establish support for the ‘basic’ and
‘systemic’ variant of JCE, their plain text clearly did not endorse liability for inci-
dental crimes of a common purpose.151 The judges’ conclusion on this point was
based solely on a literal reading of the said instruments. It would, however, have
been apposite to also trace the meaning given to them by their drafters and in sub-
sequent case law: two criteria that present a reliable indicator on whether the said
texts included the underlying rationale of JCE III liability.
The drafting of the IMT Charter and the forms of liability included in it was
quite a long and complicated process which has been thoroughly researched in
academia,152 and need not be comprehensively addressed anew here. Several doc-
uments in the process leading to the adoption of the IMT Charter at the London
Conference could, however, be highlighted here as they reveal the early traces of
JCE responsibility and can help us determine if the underlying rationale of the
doctrine’s ‘extended’ category was ever discussed and included in Article 6 IMT
Charter. One of the earliest formulations of common purpose liability was con-
tained in the ‘Yalta memorandum’: a World War II-era document which the US
Attorney General (and future US Judge at the IMT), joined by the Secretaries of
State and War, presented to President Roosevelt, advising him on a strategy for
prosecuting the Nazi war criminals.153 To this end, they proposed a concept that
they regarded as:
firmly founded upon the rule of liability, common to all penal systems and included in the
general doctrines of the laws of war, that those who participate in the formulation and exe-
cution of a criminal plan involving multiple crimes are jointly liable for each of the
offenses committed and jointly responsible for the acts of each other.154
The drafters of the ‘Yalta memorandum’ labelled this construct as ‘joint partici-
pation in a broad criminal enterprise which included and intended these crimes, or
was reasonably calculated to bring them about.’155 It thus suggested that those
150Article II(2)(d), Control Council Law No. 10, Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity, December 20, 1945, Official Gazette Control
Council for Germany 50–55 (1946), re-printed in T. Taylor, Final Report to the Secretary of the
Army on the Nuernberg War Crimes Trials under Control Council Law. No 10 (Washington D.C.:
US Government Printing Office, 15 August 1949), at 250–253 (Appendix D).
151ECCC May 2010 JCE Decision, supra note 9, §§ 57, 78.
152See e.g. Pomorski 1990, 213–248.
153Memorandum for the President, Subject: Trial and Punishment of Nazi War Criminals, 22
January 1945, re-printed in B. Smith, The American Road to Nuremberg: The Documentary
Record, 1944–1945 (Stanford: Hoover Institution, 1982), at 120. The Yalta memorandum, also
known as the Crimean proposal, formed an important milestone in the formulation of the final
prosecutorial strategy proposal which the United States ultimately presented to its European
Allies in San Francisco, short before the London Conference.
154Ibid.
155Ibid., (emphasis added).
who participate in the furtherance of a common plan or design could be held liable
not only for the specifically intended crimes of this enterprise but also for those that
were ‘reasonably calculated’ to occur. The parallels with the modern-day JCE III
notion which is used to ascribe responsibility for incidental crimes that are ‘a natu-
ral and foreseeable consequence’ of the original plan are evident.156 Notably, when
this text of the Yalta memorandum was subsequently included in the official memo-
randum which the US Government presented to the British, French and Soviet
Governments at a conference held in San Francisco in April 1945, it bore even
closer resemblance to the principle of JCE III liability and stated that the Nazi lead-
ership will be prosecuted before an international tribunal that will:
determine both the guilt of the individual leaders and the extent of the participation … in
the great Nazi criminal enterprise, of which the crimes and atrocities which have shocked
the world were an integral part or at least the natural and probable consequence.157
Moving on to the London Conference, where the four Allies negotiated and
agreed on the text of the IMT Charter, it is notable that the idea of imputing liabil-
ity for ‘reasonably calculated’ crimes of a joint enterprise appeared in several early
drafts on individual liability.158 However, it is showing that the records of these
negotiations do not contain any substantial elaboration or any discussion on this
concept and in fact it was soon left out of the proposals on the text of Article 6
IMT Charter.159 References to liability for incidental but foreseeable crimes of a
common plan or enterprise were thus sporadic and isolated, rather than part of a
pronounced effort to include such law in the IMT Charter. The Allies evidently
thought little of it and when they eventually agreed on the final text of Article 6
IMT Charter, no (explicit) mention was made of responsibility for crimes that
were the ‘reasonably calculated’ or ‘natural and probable’ result of a common
plan. One could contend, on the basis of the few earlier drafts, that this mode of
liability was impliedly included in the Charter. However, judging by the manner in
which the Allies afterwards drafted the IMT Indictment and the way in which the

157Memorandum of Proposals for the Prosecution and Punishment of Certain War Criminals and
Other Offenders, 25–30 April 1945, re-printed in B. Smith, The American Road to Nuremberg:
The Documentary Record, 1944–1945 (Stanford: Hoover Institution, 1982), at 165–166 (empha-
sis added).
158Planning Memorandum Distributed to Delegations at Beginning of London Conference,
June 1945, Document XI, re-printed in R. Jackson, Report of Robert H. Jackson, United States
Representative to the International Conference on Military Trials, London, 1945 (Washington,
D.C.: Dept. of State, Division of Publications, Office of Public Affairs, 1949), at 65; Draft of
Agreement and Charter, Reported by Drafting Subcommittee, July 11, 1945, Document XXV,
reprinted in Jackson, Ibid., at 197; Redraft of Charter, Submitted by British Delegation, July 23,
1945, Document XLV, re-printed in Jackson, Ibid., at 352.
159See e.g. Revised Definition of ‘Crimes’, Prepared by British Delegation to Meet Views of
Soviet Delegation, July 28, 1945, Document LIII, re-printed in Jackson, Ibid., at 392; Revision
of Definition of ‘Crimes’, Submitted by American Delegation, July 31, 1945, Document LVI, re-
printed in Jackson, Ibid., at 395.
232 L. Yanev
Prosecution structured its case before the Tribunal, it seems more likely that the
omitted reference to this kind of liability was caused by the fact that the Allies saw
the war crimes and crimes against humanity of the Third Reich not as incidental to
the ‘great Nazi criminal enterprise’ but as an integral part of it.160 In particular, the
Prosecution’s case before the IMT was that ‘the central crime in this pattern of
crime, the kingpin which holds them all together, is the plot for aggressive war’161
and that
the war crimes against Allied forces and the crimes against humanity committed in occu-
pied territories are incontestably part of the program of making the war because, in the
German calculations, they were indispensable to its hope of success.162
Indeed, if the view was taken that Nazi Germany’s slave labour programme, the
extermination of Jews and the other charged crimes were an intrinsic part of the
Hitlerite common plan to wage an aggressive war in Europe, it is understandable
why the notion of liability for incidental crimes of a joint enterprise attracted little
attention during the drafting of the IMT Charter.
The authoritative interpretation which the Nuremberg Tribunal provided on the
meaning of the clause ‘participating in the formulation or execution of a common
plan or conspiracy’ also does not contain a reference to the underlying rationale of
JCE III liability. The judges only held that this text ‘[does] not add a new and sep-
arate crime to those already listed [but is] designed to establish the responsibility
of persons participating in a common plan.’163 Since the Prosecution did not
develop an argument that some of the charged crimes were an incidental but fore-
seeable consequence of the grand common plan and should therefore also be
attributed to the accused, it would be apposite to conclude, as Clarke has done,
that ‘the IMT did not touch on [liability for] unintended offences’.164 Therefore,
despite the aforementioned few early references to criminal liability for crimes
that are the ‘reasonably calculated’ or ‘natural and probable’ consequence of a
common plan, the finding reached by the ECCC Chambers that the IMT Charter
does not offer customary support for the ‘extended’ form of JCE is persuasive.
160Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy
and Aggression: Supplement A (Washington: United States Government Printing Office,
1947), at 16–24. See also Office of United States Chief of Counsel for Prosecution of Axis
Criminality, Nazi Conspiracy and Aggression, Vol. 1. (Washington: United States Government
Printing Office, 1946), at 15–16.
161Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy
and Aggression: Supplement A (Washington: United States Government Printing Office, 1947),
at 17.
162Ibid., at 24.
163Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14
November 1945–1 October 1946, Vol. I (Nuremberg, Germany, 1947), at 226.

164Clarke 2011, at 844.
9.4.2 JCE III in the Subsequent Trials of Nazi War

Criminals
The scope and meaning of the Control Council Law No.10’s provision on enter-
prise liability can also be best assessed, as the ECCC Pre-Trial Chamber in fact
noted, by reviewing the case law of the Allied military tribunals in occupied
Germany that operated on the basis of this instrument. If the underlying principles
of JCE III liability were indeed elaborated and adopted by these courts, then their
judgments, as authoritative interpretations of this international instrument, would
offer substantial evidence of the recognition of JCE III liability under customary
international law.165 This is where the Chamber’s rejection of the relevance of the
two cases cited in Tadić to support this concept comes into play and ought to be
reviewed.
9.4.2.1 The Essen Lynching Case
The first case which the Tadić Appeals Chamber cited to confirm the customary
status of JCE III responsibility was the Essen Lynching case adjudicated by a
British Military Tribunal in Essen in December 1945.166 The seven accused were
all charged with the commission of a war crime, viz. for being ‘concerned in the
killing of three unidentified British airmen.’167 It was alleged that the accused
Erich Heyer, while standing before a crowd of civilians, ordered another accused,
Peter Koenen, to escort the three British airmen to the nearest Luftwaffe unit and,
adding in a loud voice so that everyone could hear, to not interfere if the gathered
crowd would start molesting the prisoners. In the ensuing march throughout the
streets of Essen, the British soldiers were severely beaten by civilians, five of
whom were the other accused in this case, until they were eventually thrown over
a bridge and shot dead. The Prosecutor submitted that:
every person who, following the incitement to the crowd to murder these men, voluntarily
took aggressive action against any of these three airmen, was guilty in that he was con-
cerned in the killing. It was impossible to separate any one of these acts from another;
they all made up what is known as a lynching. From the moment they left those barracks,
the men were doomed and the crowd knew they were doomed and every person in that
crowd who struck a blow was both morally and criminally responsible for the deaths of
the three men.168

166Trial of Erich Heyer and Six Others, British Military Court for the War Criminals, Essen,
18th–19th and 21st–22nd December, 1945 (hereafter Essen Lynching case), in Law Reports of
Trials of War Criminals: United Nations War Crimes Commission, Vol. I (London: Published for
the United Nations War Crimes Commission by His Majesty's Stationary Office, 1949), at 88–92.
167Ibid. at 88.
168Ibid., at 89.
234 L. Yanev
In its summary of the case, the UNWCC explained that the five accused
civilians:
were found guilty because every one of them had in one form or another taken part in the
ill-treatment which eventually led to the death of the victims, though against none of the
accused had it been exactly proved that they had individually shot or given the blows
which caused the death.169
The Tadić Appeals Chamber used this information to make a seemingly plausi-
ble inference. It held that, based on the parties’ arguments and the verdict, it could
be concluded that this case concerned a common plan to subject the three British
airmen to ill-treatment and the resulting murder was an excess crime to this plan.
According to the Tadić judges, ‘not all [defendants] intended to kill but all
intended to participate in the unlawful ill-treatment of the prisoners of war’, which
clearly suggested that their subsequent convictions for murder must have been
based on a JCE III liability rationale.170
There are several noticeable problems with this interpretation of the law applied
in the Essen Lynching case: problems that render the Tadić Appeal Chamber’s
analysis tenuous at best. First of all, the Prosecution explicitly argued that the case
against the seven accused was based on ‘a charge of murder and of nothing other
than murder.’171 This goes to say that there was no charge of a common purpose
to commit ill-treatment, on top of which some of the accused were also found
guilty of the additional war crime of murder. Rather, if the Essen Lynching case
could be adduced as an example of a common purpose judgment, there is more
merit in treating it as a support for the ‘basic’ JCE category: viz. as a case concern-
ing an enterprise aimed at committing murder. Furthermore, as Clarke has also
explained, the Prosecution did not submit that the death of the three British airmen
was a foreseeable consequence, but that the accused ‘knew they were doomed’:172
i.e. rather than JCE III’s dolus eventualis, the mens rea standard pled here
appeared to be knowledge of a certain result, combined with a voluntary participa-
tion in the execution of the plan. Last but not least, it must be noted that no Judge
Advocate was appointed in the Essen Lynching case, which is why the UNWCC
explained that ‘the considerations at to the facts and as to the law which guided the
Court’ were not clear and it was only possible to infer them.173 Thus, the ECCC
Pre-Trial and Trial Chambers aptly concluded that the reliance on this particular
case as proof of JCE III’s customary status is without merit.
169Ibid., at 91.
170Tadić AppealJudgment, supra note 1, § 209.
171Essen Lynching case, supra note 166, at 91. (emphasis added).
172See supra text accompanying note 168. Clarke 2011, at 851.
173Essen Lynching case, supra note 166, at 91.
9.4.2.2 The Borkum Island Case
The second case on which the Tadić judges relied as support of JCE III liability
was the Borkum Island case.174 Before examining its content, there are some gen-
eral aspects of the nature of this trial that ought to be explained because they can
affect the assessment of the law applied in it. To begin with, it is important to note
that this case was decided by a US Military Government Court at Ludwigsburg
and as such falls within the group of trials that have often been referred to as the
‘Dachau Trials’.175 An important feature of these is that, unlike the trials before
the Nuremberg Military Tribunals, they never produced reasoned judgments that
contained the findings on law and fact. Rather, the judges simply delivered a
guilty/not guilty verdict at the end of the trial.176 Therefore, as the ECCC
Chambers have noted, it is usually a matter of speculation what law they applied
to convict the accused. It also bears noting in this respect that the judges in these
military courts were not civilians but American officers and although in theory at
least one of them had to have legal training, in practice this rule was not so strictly
followed.177 To ensure the fairness of the courts’ verdicts, a review process was
established in accordance with which a conviction will become final only after it
had been approved by the army commander who appointed the court. For this pur-
pose, a judge advocate was assigned to examine the case file, comment on whether
the verdict is legally just and provide a recommendation on its approval. As
Koessler explained, it is on the basis of these detailed written reviews that the
commander finally decided whether to approve a conviction or not.178 Today, they
offer the most authoritative insight into the ‘Dachau Trials’ as they contain a sum-
mary of the parties’ arguments and an authoritative commentary on the nature of
the charges and the final verdict.
Moving on to the merits of the Borkum Island trial, the facts of this case are
very much similar to those in the Essen Lynching case. The Prosecution alleged
that the 15 accused were guilty of participating in the murder (charge one) and
assault (charge two) of seven US airmen who, on 4 August 1944, had crash-landed
174The United States of America v. Kurt Goebell and others, (Case No. 12-489), General Military
Government Court in Ludwigsburg, Germany, 6 February–22 March 1946.
175As Koessler explained, parallel to the cases brought before the Nuremberg Military Tribunals,
the US also set up military government courts in its occupation zone in Germany. The majority of
cases adjudicated before these courts were held at a US military compound in Dachau, at the site
of the former concentration camp. This is why they are collectively labeled the “Dachau Trials”
even though some of them—such as the Borkum Island case—were in fact adjudicated in other
German cities; Koessler 1950, at 25.
176Ibid., at 29.
177Ibid., at 28, 56.
178Ibid., at 67.
236 L. Yanev
on the German island of Borkum.179 In particular, it was alleged that following

this accident, the victims were taken by several German officers to the nearest mil-
itary compound. There the accused Goebell, who was the commander of all the
naval units in Borkum, ordered that they be marched via the city to the airport
where, in accordance with set procedure, they were to be flown to mainland
Germany. Evidence was introduced to the effect that Goebell called the accused
Rommel, who was Chief of Police in Borkum, and after informing him of the
march of the seven American airmen, referred him to the decree of Reich Minister
Goebbels, according to which ‘if fliers were taken prisoners and the civilians
started to attack them the police was not to interfere’.180 Goebell also called the
accused Akkermann, who was the mayor of Borkum, and told him the same thing.
Following this, a unit of seven soldiers was assigned to escort the prisoners to the
airport and orders were given to the effect that the guards ‘were not to protect the
fliers in the event of attacks by the civilian population.’181 In the ensuing march
through the city, the seven victims were severely beaten by the civilian crowd until
they were eventually shot dead by a soldier called Langer a few hundred meters
away from the airport. Each of the 15 accused played a role in this collective
crime: some of them publicly incited the civilians to ‘beat the dogs, beat the mur-
derers… beat them dead’,182 some physically beat the victims,183 some ensured
that the police would turn a blind eye to the lynch184 and some devised this whole
plan and ordered the non-interference of the prisoners’ guards.185 Thus, the
Prosecution submitted that all defendants were ‘cogs in the wheel of common
179Deputy Judge Advocate’s Office (War Crimes Group European Command), Review and
Recommendations: The United States v Kurt Goebell and others, (Case No. 12-489), General
Military Government Court in Ludwigsburg, Germany, 6 February–22 March 1946, [Date of
Case Review: 1 August 1947] (hereafter Borkum Island Judge Advocate’s Review), at 1, avail-
able at http://www.jewishvirtuallibrary.org/jsource/Holocaust/dachautrial/fs43.pdf (visited 15
June 2015).
180Ibid., at 4, 37.
181Ibid. at 4.
182The accused Akkermann shouted these words to the civilian crowd as the airmen were
marched nearby the City Hall. Ibid., at 35–36. Evidence was also introduced that the accused
Weber, a soldier who was assigned to guard the prisoners, also shouted to the crowd: “there the
pigs are coming, beat them to death. Ibid., at 22.
183The accused Mammenga and Heinemann are two of the defendants against whom evidence
was introduced to the effect that they had personally punched and beaten the fliers with their
fists. Ibid, at 38 and 41.
184Rommel, the Chief of Borkum Police, after being telephoned both by Akkermann and Goebell
and informed of the prisoners’ march and reminded of the Reich Minister’ decree to not interfere
in cases of civilian lynch, went to the house of the leader of the Emergency Service and agreed
that ‘neither the Emergency Service nor the police should have anything to do with the affair’,
ibid., at 8.
185The accused Goebell and Seiler, both of whom never left the military base where the seven fli-
ers were first interrogated were instrumental to the planning and coordination of the march. Ibid.,
at 12–13 and 24–25.
design, all equally important, each cog doing the part assigned to it. And the wheel
of wholesale murder could not turn without all the cogs’.186 It then argued that on
this basis ‘each and every one of the accused [was] guilty of murder’.187
While it is perfectly clear that the Prosecution relied on the ‘common purpose’
theory to define the liability of each accused, the lack of a reasoned judgment still
creates uncertainty as to whether this was ultimately the approach followed by the
judges in the case. However, it seems apposite to conclude that this was so, seeing
that the review of the case prepared by the Judge Advocate’s Office clearly
regarded the liability of several of the accused as that of persons ‘who join as par-
ticipants in a plan to commit an unlawful act’.188 The question that is more diffi-
cult to answer is whether the underlying principles of the ‘extended’ form of JCE
were indeed defined and applied in this case. On the one hand, it may be argued
that, just like in the Essen Lynching case, the Prosecutor in Borkum Island trial
charged the defendants with participation in a common design to commit murder,
which would mean that this case is more representative of the ‘basic’ form of JCE.
Indeed, the Tadić Appeals Chamber itself conceded that this is a reasonable inter-
pretation.189 One the other hand, however, there is a very notable difference
between the two cases: Essen Lynching was founded on ‘a charge of murder and
of nothing other than murder’,190 while in Borkum Island there were two distinct
charges: of assault and of murder.191 Apart from one accused who was acquitted
under both, all accused were found guilty of the assault charge and of them only
six were further convicted under the murder charge.192 These six were Goebell,
Akkermann, Seiler, Krolikowski, Wentzel and Shcmitz, and it was only against
Schmitz that the Prosecution introduced evidence of direct participation in the
186The Prosecutor further argued that ‘[I]t is important, as I see it, to determine the guilt of
each of these accused in the light of the particular role that each one played. They did not all
participate in exactly the same manner. Members of mobs seldom do. One will undertake one
special or particular action and another will perform another particular action. It is the compos-
ite of the actions of all that results in the commission of the crime. Now, all legal authorities
agree that where a common design of a mob exists and the mob has carried out its purpose, then
no distinction can be drawn between the finger man and the trigger man (sic). No distinction is
drawn between the one who, by his acts, caused the victims to be subjected to the pleasure of the
mob or the one who incited the mob, or the ones who dealt the fatal blows.’ This text from the
Prosecution’s Charge Sheet is cited in Tadić Appeal Judgment, supra note 1, § 210.
187Ibid.
188Borkum Island Judge Advocate’s Review, supra note 179, at 21, 23, 25.
190Trial of Erich Heyer and Six Others, British Military Court for the War Criminals, Essen,
18th–19th and 21st–22nd December, 1945, in Law Reports of Trials of War Criminals: United
Nations War Crimes Commission, Vol. I (London: Published for the United Nations War Crimes
Commission by His Majesty's Stationary Office, 1949), at 91.
192Borkum Island Judge Advocate’s Review, supra note 179, at 1.
238 L. Yanev
shooting of the victims.193 Thus, one could reasonably argue that the common
design shared by all accused was to assault (lynch) the US airmen and that their
eventual murder was an additional crime to this enterprise, which was foreseen
and accepted by the abovementioned six accused. This is certainly how the Tadić
Appeals Chamber interpreted these verdicts when it held that the convictions
under the charge of murder were entered:
Presumably … on the basis that the [six] accused, whether by virtue of their status, role or
conduct, were in a position to have predicted that the assault would lead to the killing of
the victims by some of those participating in the assault.194
The Chamber’s inference on this point is not without merit and additional
research shows that it is also supported by the conclusions contained in the Judge
Advocate’s subsequent review of the case. In particular, after examining the evi-
dence against the accused Seiler,195 the reviewing authority recommended to the
army commander that the verdict against this accused, for both the assault and the
murder charges, should be approved in accordance with the law that:
All who join as participants in a plan to commit an unlawful act, the natural and probable
consequence of the execution of which involved the contingency of taking human life, are
legally responsible as principals for a homicide committed by any of them in pursuance
of or in furtherance of this plan. The accused very actively furthered and contributed to
the plan which resulted in several illegal killings. The evidence indicates that he was at
least comparatively willing participant. While he is legally responsible as a principal for
the illegal killings, the extent of his culpability is not too clear in that the orders he issued
and the steps he took were apparently at the direction of his superior officer [Goebell] and
there is no showing as to acts in furtherance of the plan following the time that the fliers
started on the mach. The extent of his culpability is not sufficient to warrant the death
penalty.196
There could be no doubt that the Judge Advocate’s summation of the law in
respect to Seiler’s liability outlines the underlying principles of the modern JCE III
theory. This formulation of the law on responsibility for the foreseeable crimes of a
common criminal plan was recited verbatim in the sections dealing with the liability
193Ibid., at 1 and 26.

195Seiler was the commanding officer of the military compound where the US airmen were first
taken after they crash-landed on the Borkum Island. Joined by his superior Goebell, he ques-
tioned the prisoners and assigned the units that were to march the airmen through Borkum. In
accordance with Goebell’s instructions, he ordered the units to refrain from interfering if the
civilians attacked the prisoners, to make sure that the prisoners walk with their hands above their
heads, to beat the prisoners with the rifle butts if the fliers did not do this and to shoot dead any
flier who tried to escape. According to the testimony of one witness, Seiler even offered a bottle
of whiskey to the first guard who would shoot such a flier. Following these instructions, Seiler
remained back in the compound while the prisoners were marched through the city of Borkum.
Borkum Island Judge Advocate’s Review, supra note 179, at 24.
196Ibid., at 25. (emphasis added).
of the other accused, as well.197 While it is impossible to state with absolute cer-
tainty what the judges’ reasoning behind the verdicts was, the review of the Judge
Advocate’s Office strongly militates in favour of the conclusion that Borkum Island
was decided upon the rule that those who jointly participate in the formulation and
execution of a common plan to commit a crime (e.g. assault) can also be held liable
for the natural and probable consequences of furthering this plan (e.g. murder).
The question that arises is what value should be attached to this judgment when
trying to determine the customary status of the ‘extended’ variant of JCE. First of
all, it should be pointed out that unlike the US Military Tribunals at Nuremberg,
which were explicitly established under the authority of the Allied Control
Council Law No.10 and have been judicially recognized as international tribunals
applying international law,198 the US military government courts which adjudi-
cated the ‘Dachau trials’ were national tribunals operating solely under US author-
ity.199 It has been noted in ICTY case law that domestic judgments are less
indicative of the formation of customary international law since they are not
‘based on the same corpus of law as that applied by international courts [but] tend
to apply national law, or primarily that law, or else interpret international rules
through the prism of national legislation.’200 However, it ought to be stressed that
although they qualified as national tribunals, the US military government courts in
Germany did not conduct trials under US domestic criminal law. Rather, their
jurisdiction was limited to applying the international law of war crimes, defined by
the Headquarters of the United States Forces, European Theater of Operation, as:
violations … of the laws and usages of war of general application and acceptance,
including the acts in contravention of treaties and conventions dealing with the conduct of
war, as well as other offenses against persons or property which outrage common justice
or involve moral turpitude, committed in connection with military operations, with or
without orders or the sanction of commanders.201
197Ibid.,at 21, 23, 27, 29, 31–32, 34, 36, 38, 40, 41–42.
198Military Tribunal III, United States of America v. Josef Altstötter and others (“The Justice
Case”), Case No.3, 5 March 1947–4 December 1947, in Trials of War Criminals before the
Nuernberg Military Tribunals under Control Council Law No. 10, Nuremberg, October 1946–
April, 1949, Vol. III (Washington: U.S. Government Printing Office, 1951), at 984; Military
Tribunal IV, United States of America v. Ernst Von Weizsaecker and others (“The Ministries
Case”), Case No.11, 6 January 1948–13 April 1949, in Trials of War Criminals before the
Nuernberg Military Tribunals under Control Council Law No. 10, Nuremberg, October
1946–April, 1949, Vol. XV (Washington: U.S. Government Printing Office, 1953), at 325. See
also, Koessler 1950, at 25, 36; Separate and Dissenting Opinion of Judge Cassese, Judgment,
Erdemović (IT-96-22-A), Appeals Chamber, 7 October 1997, § 27; Judgment, Kupreškić and oth-
ers (IT-95-16-T), Trial Chamber, 14 January 2000, §§ 540–542.
199Koessler 1956, at 194–195.
200Judgment, Kupreškić and others (IT-95-16-T), Trial Chamber, 14 January 2000, § 542.
201Headquarters, U.S. Forces, European Theater, Investigation of War Crimes, (Circ. 132), 2
October 1945, re-printed in Report of the Deputy Judge Advocate for War Crimes, European
Command, June 1994 to July 1948, at 111 (emphasis added), available at http://www.loc.
gov/rr/frd/Military_Law/pdf/report-deputy-JA-war-crimes.pdf (visited 15 June 2015).
240 L. Yanev
Koessler, who was a civilian attorney employed by the US Department of the

Army to review a number of ‘Dachau trials’ verdicts, explained that although these
courts derived their authority from a domestic directive:202
this does not mean that the substantive law applied by those commissions was American
law. It was the international law of war crimes. Consequently, in determining the guilt of a
defendant, only internationally recognized principles of criminal law could properly be
applied, thus not the described conspiracy doctrine which is generally nor part of the
criminal law in civil law countries, as for instance France and Germany.203
Regarding the ‘common design’ concept and the imputation of liability for nat-
ural and probable consequence of the execution of a common criminal plan,
Koessler described it as ‘a universally recognized principle of criminal law’.204
Inasmuch as the Borkum Island judgment could truly be seen as international case
law, furthering the well-known Nuremberg-era case law on ‘common design/pur-
pose’ concept, it provides—contrary to the Pre-Trial Chamber’s conclusion—evi-
dence of the customary law status of JCE III liability.
9.4.2.3 The Additional Dachau Cases Cited by the STL

Appeals Chamber
When affirming the customary status of JCE III, the STL Appeals Chamber addi-
tionally referred to several cases which fall in the abovementioned group of
‘Dachau trials’: the United States v. Martin Gottfried Weiss et al.,205 the United
States v. Hans Wuelfert et al.206 and the United States v. Hans Ulrich and Otto
Merkle.207 As explained above, in its September 2011 JCE Decision, the ECCC
202The jurisdictional basis of the US military government courts that conducted the US zonal
trials in occupied Germany was the Directive on the Identification and Apprehension of Persons
Suspected of War Crimes or Other Offenses and Trial of Certain Off enders (1023/10), issued
by the United States Joint Chiefs of Staff on 8 July 1945. See also, Heller 2011, at 9–17; Alija-
Fernández 2013, at 105–106.
203Koessler 1956, at 195. See also, Tomaz 2012, at 31.
204In his view, ‘[i]t is a universally recognized principle of criminal law, governing the determi-
nation of guilt of an accomplice, that one who knowingly and willingly participates in a criminal
design or undertaking is equally with the direct perpetrator or perpetrators responsible for any act
in pursuance of that design or undertaking, or which is a natural or probable consequence of it.’
Koessler 1956, at 194. See also Koessler 1950, at 82.
205United States of America v. Martin Gottfried Weiss and others, General Military Government
Court of the United States at Dachau, 15 November 1945–13 December 1945 (hereafter Dachau
Concentration Camp Case), case summary published in Law Reports of Trials of War Criminals:
United Nations War Crimes Commission, Vol. XI (London: Published for the United Nations War
Crimes Commission by His Majesty’s Stationary Office, 1949), at 5–17.
206United States of America v. Hans Wuelfert and others, (Case No. 000-50-2-72), General
Military Government Court of the United States at Dachau, Germany, 12–17 March 1947.
207United States of America v. Hans Ulrich and Otto Merkle, (Case No. 000-50-2-17), General
Military Government Court of the United States at Dachau, Germany, 12–22 November 1946.
Trial Chamber cited the lack of reasoned judgments in all these cases to conclude
that it is impossible to consider them as evidence of the adoption of JCE III liabil-
ity in the Nuremberg-era jurisprudence.208
The first of the above three cases has often been referred to as the Dachau
Concentration Camp Case. It dealt with the most senior staff members of the
Dachau concentration camp and was tried as a ‘parent case’ for a series of sub-
sequent trials against other individuals involved in the camp’s operation. As the
UNWCC noted, this meant that judges in these affiliated follow-up trials had to:
take judicial notice of the decision rendered in the parent case including the finding of the
court that the [Dachau] mass atrocity operation was criminal in nature and that the partici-
pants there acting in pursuance to a common design did subject the persons to [crimes]
and no examination of the record of such parent case need to be made for the purpose.209
Thus, the concept of ‘common purpose/design’, which underscored all the

charges in the Dachau Concentration Camp Case,210 was subsequently also used
in many ‘smaller’ trials against other participants in this system of ill-treatment.
They adopted the findings made in the ‘parent case’ regarding the nature of the
Dachau operation and the crimes committed in it, applied the law on ‘common
purpose/design’ and sought to determine if the accused sufficiently participated in
this system of ill-treatment in order to be convicted of its crimes.211 Both the
Ulrich and Merkle and the Hans Wuelfert et al. case, belong to this ‘secondary’
category of trials.212 It is thus important to first find out if the Dachau ‘parent case’
truly assigned liability for the incidental crimes of a common criminal plan and as
such constitutes evidence of the customary status of JCE III.
The Dachau Concentration Camp Case was summarily examined in a report pre-
pared and published by the United Nations War Crimes Commission.213 Although
this report clearly states that this case was founded on the ‘common design’
charge,214 there is nothing in it that even remotely suggests that this notion was also
used in the case to ascribe liability for crimes that were unconcerted and incidental
to the Dachau criminal operation. In fact, the section of the UNWCC report which
explains the law on this mode of liability points out that ‘the prosecution adduced
208ECCC September 2011 JCE Decision, supra note 10, § 34.

209Dachau Concentration Camp Case, supra note 205, at 16. Koessler explained that the idea
was that ‘findings of fact in a parent case concerning a particular concentration camp [were
made] to a specified extent binding upon the tribunals in subsequent trials related to the same
concentration camp. … It would have been a waste of time, efforts and costs to repeat the evi-
dence concerning certain general features of a particular concentration camp, introduced in the
parent case, in each of the numerous affiliated proceedings.’ Koessler 1950, at 32–33.
210Dachau Concentration Camp Case, supra note 205, at 7, 12.
211Law Reports of Trials of War Criminals: United Nations War Crimes Commission, Vol. XV
(London: Published for the United Nations War Crimes Commission by His Majesty's Stationary
Office, 1949), at 93.
212STL Interlocutory Decision, supra note 6, § 237 (fn.355).
213Dachau Concentration Camp Case, supra note 205, at 5–17.
214Ibid., at 7, 12.
242 L. Yanev
evidence that Dachau Concentration Camp was run according to a system which
inevitably produced’ the crimes charged in the indictment.215 There was thus no dis-
tinction made between core and incidental crimes of the Dachau ‘common design’:
rather, the crimes charged in the indictment were all viewed as inherent to this sys-
tem of ill-treatment and falling within its criminal purpose. The UNWCC further
cited the Prosecution’s reliance on the principle of law that:
[n]o matter how wide may be the separation of confederates, if they are all engaged in a
common plan for the execution of the felony and all take their part in the furtherance of
the common plan, all are liable as principals.216
The law defined here clearly confirms the underlying principles of the
‘basic’/’systemic’ type of joint criminal enterprise but it does not propound the
rationale of the ‘extended’ category of JCE.
In light of the above, it is difficult to understand the STL Appeals Chamber’s
decision to list the Dachau Concentration Camp Case as evidence of the custom-
ary foundations of the ‘extended’ type of JCE. Regrettably, the judges did not
deem it necessary to explain why they thought this case provides support for this
mode of liability.217 Some merit to this contention, however, could be noticed in
the authentic Judge Advocate’s review of the case. In particular, when elaborating
on the applicable law, the reviewing authority stated:
It is a well-settled principle of law that where two or more persons combine to perform a
criminal act, each may be held liable criminally for all of his acts and of his confederates,
done in furtherance of the common design, and where the design is actually carried out,
then the liability of each person who participated therein is determined by the nature and
extent of his participation. Furthermore, all who join in such common design to commit
an unlawful act must take responsibility for all the consequences of the execution of that
act if done in furtherance of the plan although not specifically contemplated by the par-
ties, or even forbidden by the defendant, or although the actual perpetrator is not
identified.218
This statement of the law was not quoted in the UNWCC report on the Dachau
Concentration Camp Case. It defined the limits of ‘common design’ liability in a
very broad way by holding that the participants in a shared criminal plan could be
held liable not only for the specifically agreed upon crimes, but also for all other
consequences that resulted from the execution of the plan. At first sight, it appears
215Ibid., at 12. (emphasis added) For information on the specific crimes charged in this case, see
infra note 220.

216Ibid., at 13.
217They only refer to a page from the case typescript, the content of which is unknown since
this document is not published anywhere but is kept on file with the STL. See STL Interlocutory
Decision, supra note 6, § 237 (fn. 355).
218Office of Judge Advocate (Headquarters, Third US Army and Eastern Military District),
Review of the Proceedings of General Military Court in the Case of United States vs. Martin
Gottfried Weiss and others, 15 Nov–13 Dec 1945 (Date of Case Review: March–April 1946)
(hereafter Dachau Concentration Camp Case Review), at 141 (emphasis added), available at http:
//www.jewishvirtuallibrary.org/jsource/Holocaust/dachautrial/d3.pdf (visited 15 June 2015).
that the underlying rationale of the JCE III notion, which imputes liability for
additional offences that are a natural and foreseeable consequence of the original
criminal enterprise, is included in the above formulation of the law. However, the
truth is that the Judge Advocate’s definition of ‘common design’ liability was
much broader and, as formulated, it in fact bordered on establishing strict liability
for any offence, foreseeable or not, committed in furtherance of this plan. Unlike
the Judge Advocate’s review in the Borkum Island case,219 the review of the
Dachau Concentration Camp Case did not clearly outline the elements of what is
nowadays called the ‘extended’ form of JCE. This is not surprising, given that the
charges in the latter trial were not at all structured in a manner that suggested that
the Prosecution differentiated between core and incidental crimes of the Dachau
camp.220 To the contrary, the Prosecution’s case was that the crimes charged in the
indictment were an integral part of the Dachau system221 and the Judge
Advocate’s review stated unequivocally that ‘very little could have been hit-or-
miss in such a kaleidoscopic pattern of human exploitation.’222 In other words, the
accused did not face charges of incidental, unconcerted crimes which fell outside
the original criminal scope of the Dachau system. For this reason, one could not
conclude with any certainty that the Dachau Concentration Camp Case relied on
the principles of JCE III liability to convict the accused.
As noted above, the Dachau Concentration Camp Case was a ‘parent case’ to a
series of affiliated smaller trials which dealt with the guilt of other persons
involved in this system of ill-treatment. It bears noting that in some of these trials
the defendants were acquitted of the charges because the evidence demonstrated
that the nature and extent of their participation in the common plan was insuffi-
cient for a conviction.223 In other cases, such as the Ulrich and Merkle case and
219See supra text accompanying note 196.

220The indictment in the Dachau Concentration Camp Case contained two charges of war
crimes. Under Charge 1, all the accused were held liable for ‘acting in pursuance of a common
design to… [subject] civilian nationals of nations then at war with the then German Reich to cru-
elties and mistreatment, including killings, beatings, tortures, starvation, abuses and indignities.’
Charge 2 held the accused were responsible for ‘acting in pursuance of a common design to…
[subject] members of the armed forces of nations then at war with the then German Reich… to
cruelties and mistreatment, including killings, beatings, tortures, starvation, abuses and indigni-
ties.’ See Dachau Concentration Camp Case Review, supra note 218, at 1–2.
221Dachau Concentration Camp Case, supra note 205, at 12.
222Dachau Concentration Camp Case Review, supra note 218, at 143.
223See e.g. Deputy Judge Advocate’s Office (War Crimes Group European Command), Review
and Recommendations: The United States v. Stefan Koch and others, (Case No. 000-50-2-55),
Intermediate Military Government Court in Dachau, Germany, 20–21 January 1947 (Date of
Case Review: 29 July 1947), at 2–3, available at http://www.jewishvirtuallibrary.org/jsource/
Holocaust/dachautrial/d56.pdf (visited 15 June 2015); Deputy Judge Advocate’s Office (War
Crimes Group European Command), Review and Recommendations: The United States v.
Karl Adami and others, (Case No. 000-50-2-1), Intermediate Military Government Court in
Dachau, Germany, 11–14 October 1946 (Date of Case Review: 24 March 1947), at 10 (regard-
ing the liability of Anton Schermaul), available at http://www.jewishvirtuallibrary.org/jsource/
Holocaust/dachautrial/d4.pdf (visited 7 January 2014).
244 L. Yanev
the Hans Wuelfert et al. case, cited by the STL Appeals Chamber, the accused
were shown to have ‘participated to a substantial degree’ in the Dachau criminal
enterprise so they were found guilty of the charged crimes: i.e. of the crimes that
characterised this system of ill-treatment as defined in the ‘parent case’.224
Contrary to what the STL judges have suggested by listing these two cases as evi-
dence of the customary status of JCE III, nothing in them actually implies that the
accused were found guilty on the basis of liability for incidental crimes of a com-
mon design. The Ulrich and Merkle case dealt with two accused who were mem-
bers of the SS at Dachau and ran the DAW (Deutsche Ausrüstungswerke)
workshops there. Thousands of Dachau prisoners were forced to work in this fac-
tory and were severely mistreated either directly by or upon instructions from the
two accused. Both accused were found guilty of the charges against them and the
reviewing authority recommended that the verdict be upheld, stating that:
The Court was required to take cognizance of the decision rendered in the Parent Case,
including the findings of the Court therein, that the [Dachau] mass atrocity operation was
criminal in nature and that the participants therein, acting in pursuance of a common
design, subjected persons to killings, beatings, tortures, etc., and was warranted in infer-
ring that those shown to have participated knew of the criminal nature thereof. Both of the
accused were shown to have participated in the mass atrocity and the Court was warranted
by the evidence adduced that, either in the Parent case or in this subsequent proceeding, in
concluding as to them that they not only participated to a substantial degree, but the nature
and extent of their participation was such as to warrant the sentence imposed.225
The same conclusion was drawn mutatis mutandis in the Judge Advocate’s
review of the Hans Wuelfert et al. case226 and, in fact, this was the standard lan-
guage that the reviewing authorities used to confirm guilty verdicts in the
Recommendations: United States of America v. Hans Wuelfert and others, (Case No. 000-50-2-
72), General Military Government Court of the United States at Dachau, Germany, 12–17 March
1947 (Date of Case Review: 19 Sept 1947), at 2, 12, available at http://www.jewishvirtuallibrary.
org/jsource/Holocaust/dachautrial/d73.pdf (visited 15 June 2015);
Deputy Judge Advocate’s Office (War Crimes Group European Command), Review and
Recommendations: United States of America v. Hans Ulrich and Otto Merkle (Case No. 000-
50-2-17), General Military Government Court of the United States at Dachau, Germany, 12–22
November 1946 (Date of Case Review: 12 June 1947), at 11, available at http://www.jewishvirtu
allibrary.org/jsource/Holocaust/dachautrial/d19.pdf (visited 15 June 2015).
Recommendations: United States of America v. Hans Ulrich and Otto Merkle (Case No. 000-
50-2-17), General Military Government Court of the United States at Dachau, Germany, 12–22
November 1946 (Date of Case Review: 12 June 1947), at 10–11, available at http://www.jewishvi
rtuallibrary.org/jsource/Holocaust/dachautrial/d19.pdf (visited 15 June 2015).
Recommendations: United States of America v. Hans Wuelfert and others, (Case No. 000-50-2-
72), General Military Government Court of the United States at Dachau, Germany, 12–17 March
1947 (Date of Case Review: 19 September 1947), at 11–12, available at http://www.jewishvirtual
library.org/jsource/Holocaust/dachautrial/d73.pdf (visited 15 June 2015).
subsequent Dachau Camp trials.227 It is abundantly clear that this construction of

the law on ‘common design’ liability does not propound the underlying rationale
of the JCE III theory. Therefore, as these reviews best indicate the legal basis on
which the cases were decided, it is apposite to conclude that neither the Ulrich and
Merkle case, nor the Hans Wuelfert et al. case, nor any of the other small trials
affiliated to the Dachau ‘parent case’, offer strong evidence that the ‘extended’
form of JCE acquired the status of international custom.
9.4.2.4 The RuSHA Case
In support of the customary status of JCE III, the STL Appeals Chamber also
referred to the case of the United States of America v. Ulrich Greifelt et al. (The
RuSHA Case) that was decided by Nuremberg Military Tribunal I, acting under the
authority and applying the law contained in the Control Council Law No. 10.228
The accused were 14 Nazi officials who held senior positions in four SS agencies
that had one core purpose: ‘to proclaim and safeguard the supposed superiority of
“Nordic” blood, and to exterminate and suppress all sources which might “dilute”
or “taint” it.’229 Under Count One of the Indictment, dealing with crimes against
humanity, the Prosecution alleged that the defendants acted in furtherance of:
a systematic program of genocide, aimed at the destruction of foreign nations and ethnic
groups, in part by murderous extermination, and in part by elimination and suppression of
national characteristics. The object of this program was to strengthen the German nation
and the so-called “Aryan” race at the expense of such other nations and groups by impos-
ing Nazi and German characteristics upon individuals selected therefrom… and by the
extermination of “undesirable” racial elements.230
and also that:

In carrying out the plans and enterprises constituting a vast integrated scheme to commit
genocide and thereby to strengthen Germany, the defendants herein participated in crimi-
nal activities, including but not limited to those set forth hereinafter in paragraphs 11 to
21, inclusive, of th[e] indictment.231
227Digital copies of the Judge Advocate’s reviews of many of the subsequent Dachau
Concentration Camp cases are available at the online database of the Jewish Law Library. ‘The
Dachau Trials: Dachau Cases (1945–1947)’, The Jewish Virtual Library, available at http://www.j
ewishvirtuallibrary.org/jsource/Holocaust/WarCrime13.html (visited 15 June 2015).
228Military Tribunal I, United States of America v. Ulrlch Greifelt and others (“The RuSHA
Case”), Case No. 8, 20 October 1947–10 March 1948, in Trials of War Criminals before the
April, 1949, Vols. IV and V (Washington, D.C.: U.S. Government Printing Office, 1950).
April, 1949, Vol. IV (Washington, D.C.: U.S. Government Printing Office, 1950), at 613.
230Ibid. at 609–610.
231Ibid. at 613.
246 L. Yanev
The said criminal activities included persecution and extermination of Jews,

abducting ‘racially valuable’ foreign children, punishment for sexual intercourse
with Germans, forced abortions, etc. Although it is evident that the Prosecution
construed the liability of the accused along the lines of what is nowadays known
as the theory of joint criminal enterprise, the indictment did not contain any lan-
guage propounding the underlying principles of the theory’s ‘extended’ category.
It described the charged crimes as an inherent part of the genocidal program,
rather than as an incidental yet foreseeable consequence of the execution of that
scheme.
The same could also be said for the actual judgment in the case, which the STL
Appeals Chamber listed, without providing any elaboration on the matter, as evi-
dence of the customary status of JCE III.232 The judges in the RuSHA case,
indeed, found that the accused Hofmann and Hildebrandt, who were successively
appointed chiefs of the SS Race and Settlement Main Office (SS Rasse und
Siedlungshauptamt), actively participated in the Nazi ‘Germanization plan’ that
had as its primary purpose: ‘[t]he two-fold objective of weakening and eventually
destroying other nations while at the same time strengthening Germany, both terri-
torially and biologically, at the expense of conquered nations.’233 The judges fur-
ther held that RuSHA was the SS agency that was principally tasked with
conducting racial examinations: a function that placed it at the heart of the crimes
committed as part of the ‘Germanization program’ because its decisions on the
racial value of the victim determined the questions of sterilization, forced abortion,
abduction of children etc.234 The evidence showed that the defendant Hofmann
was ‘fully conversant of the atrocious program’,235 as was also Hildebrandt who
‘emphatically issued instructions’236 to his RuSHA subordinates, stating:
I want to point out once more the grave responsibility which has been assigned to the SS
Leaders for Race and Resettlement matter by this new order, that is, to especially further
all valuable racial strains for the strengthening of our people and to accomplish a com-
plete elimination of everything racially inferior.237
The judges ultimately found that both accused ‘actively participated in the
measures adopted and carried out in furtherance of the Germanization program’238
and were, therefore, criminally liable for the crimes of this enterprise, namely:
232STL Interlocutory Decision, supra note 6, § 237 (fn.355).

April, 1949, Vol. V (Washington, D.C.: U.S. Government Printing Office, 1950), at 90.
234Ibid., at 106, 110, 113–114, 117–118, 124, 129–130, 136.
235Ibid., at 115.
236Ibid.
237Ibid., at 116.
238Ibid., at 160–161.
the kidnaping of alien children; forcible abortions on Eastern workers; taking away infants
of Eastern workers; the illegal and unjust punishment of foreign nationals for sexual inter-
course with Germans; hampering the reproduction of enemy nationals; the forced evacua-
tion and resettlement of foreign populations; the forced Germanization of enemy
nationals; and the utilization of enemy nationals as slave labor.239
As the modern international tribunals have rightly noted, the RuSHA Judgment
did define the liability of Hofmann and Hildebrandt in a manner that is analogous
to the ‘basic’ category of JCE.240 However, there is nothing in it to suggest that the
accused were convicted of crimes that were regarded as ancillary to the
‘Germanization program’ yet a natural and foreseeable result of its execution. To
the contrary, the judges reasoned that ‘in the very beginning the Germanization
program envisioned certain drastic and oppressive measures, among them:
Deportation of Poles and Jews; the separation of family groups and the kidnapping
of children … and the hampering of the reproduction of the Polish population.’241
Therefore, it is inapposite to contend that the RuSHA case applied the rationale of
JCE III liability. Even though the ECCC Trial Chamber did not specifically review
it in its September 2011 JCE Decision, it can be concluded that this case also does
not present cogent evidence of the customary status of the ‘extended’ form of JCE.
9.4.3 Deciding on the Customary Status of JCE III
The ECCC Pre-Trial and Trial Chamber’s rejection of JCE III’s customary status
is certainly not without merit, even though the analysis that the judges offered to
reach this conclusion could be rightly criticised for lacking depth and, at times,
being inaccurate. A more thorough examination of the Judge Advocate’s detailed
review of the Borkum Island case, for instance, reveals that the principle of liabil-
ity for the incidental but foreseeable crimes of a common plan was in fact stated as
an official explanation for some of the guilty verdicts in the case.242 Furthermore,
it is notable that the underlying rationale of JCE III responsibility was also pro-
pounded in some of the earlier Nuremberg-era documents leading to the drafting
and adoption of the IMT Charter.243 It has also been suggested in academia that
239Ibid.
240Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the
Crime of Genocide, Rwamakuba (ICTR-98-44-AR72.4), Appeals Chamber, 22 October 2004, § 15;
Brđanin Appeal Judgment, supra note 2, §§ 393, 399–404; ECCC May 2010 JCE Decision, supra
note 9, § 68.
241Military Tribunal I, United States of America v. Ulrich Greifelt and others (“The RuSHA
April, 1949, Vol. V (Washington, D.C.: U.S. Government Printing Office, 1950), at 96.
242See supra text accompanying notes 195–197.
248 L. Yanev
further support for the ‘extended’ form of JCE could be found in some of the other
‘Dachau Trials’, as well as in war-crime trials held against minor Japanese war
criminals in the Pacific area at the end of World War II.244 How do these consider-
ations factor in the conclusion that the Nuremberg-era legislation and jurispru-
dence do not establish a customary basis for JCE III liability?
Regarding the Yalta and the San Francisco memorandums, as well as some of the
earlier draft texts of the IMT Charter, which contained references to liability for
‘reasonably calculated’ crimes of a joint enterprise, it was already explained that
this concept was eventually abandoned by the Allies and thus did not figure neither
in IMT Charter, nor in the IMT Judgment.245 Indeed, when the UN General
Assembly subsequently unanimously recognized the rules contained in the IMT
Charter and specifically directed the International Law Commission to formulate
and codify the principles established therein,246 the latter produced a report which
contained no reference to the notion of liability for unintended but foreseeable
crimes of a common plan.247 This report put forward the seven Nuremberg
Principles, Principle VII of which established that ‘[c]omplicity in the commission
of a crime against peace, a war crime, or a crime against humanity … is a crime
under international law.’248 While the explanatory notes to it state that this Principle
includes the liability of persons participating in a common criminal plan, this notion
is defined by reference to relevant findings of the IMT Judgment on it and, there-
fore, no mention is made of the underlying rationale of JCE III responsibility.249
Regarding the Borkum Island case, or for that matter any newly identified
Nuremberg-era trial of such calibre where the accused were held liable for the
incidental crimes of an enterprise, it is doubtful how much it actually detracts from
the conclusion that JCE III lacks sufficient basis in customary international law.
To be sure, the Allies conducted thousands of small trials against minor war crimi-
nals and if the dispute on JCE III’s customary status turns into an exercise of one
international court unearthing such obscure and largely inaccessible cases and the
other rejecting them for their dubiousness, this debate could prove to be endless.
As a starting point, one should be mindful of the nature of these cases when rely-
ing on them as evidence of the formation of an international custom. In particular,
244Clarke 2011, at 840, 853–861; Jain 2014, at 71.

245See supra Sect. 9.4.1.
246See United Nations General Assembly, Affirmation of the Principles of International Law
Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. GAOR, 1st Sess.,
pt. 2, at 1144, U.N. Doc. A/236, 11 December 1946, available at http://www.un.org/documents/
ga/res/1/ares1.htm (visited 15 June 2015). See also Jackson, supra note 158, at viii (preface);
Scharf 2013, at 64–66.
247United Nations International Law Commission, ‘Report of the International Law Commission
Covering Its Second Session, 5 June–29 July 1950 (Doc. A/1316)’, 2 Yearbook of the
International Law Commission (1950) 364–386, at 374–378 (§§ 95–127), available at http://
legal.un.org/ilc/publications/yearbooks/1950.htm (visited 15 June 2015).
248Ibid., at 377.
249Ibid., at 377–378 (§§ 125–126).
international courts and tribunals have long established a sort of a hierarchy in the
value of international and domestic judgments in this respect. Already in the early
S.S. Lotus Case, in which both parties cited national judgments to prove the for-
mation of an international custom, the International Court of Justice observed that:
So far as the Court is aware there are no decisions of international tribunals in this matter;
but some decisions of municipal courts have been cited. Without pausing to consider the
value to be attributed to the judgments of municipal courts in connection with the estab-
lishment of the existence of a rule of international law, it will suffice to observe that the
decisions quoted sometimes support one view and sometimes the other.250
This dictum clearly points at international judgments as a stronger and more

reliable evidence of the establishment of a certain rule of international law. Sir
Hersch Lauterpacht even argued in his academic work that judgments of interna-
tional courts and tribunals are not so much evidence of state practice and opinio
juris as they are, in fact, a declaration of what international law is and in this
respect are ‘to a substantial degree identical with the sources of law enumerated in
the first three paragraphs of Article 38 [ICJ Statute].’251 The ICTY Kupreškić Trial
Chamber echoed this line of reasoning when it explained that:
Being international in nature and applying international law principaliter, the Tribunal
cannot but rely upon the well-established sources of international law and, within this
framework, upon judicial decisions. What value should be given to such decisions? … [T]
he authority of precedents (auctoritas rerum similiter judicatarum) can only consist in
evincing the possible existence of an international rule. More specifically, precedents may
constitute evidence of a customary rule in that they are indicative of the existence of
opinio iuris sive necessitatis and international practice on a certain matter … Here again
attention should however be drawn to the need to distinguish between various categories
of decisions and consequently to the weight they may be given for the purpose of finding
an international rule or principle. It cannot be gainsaid that great value ought to be
attached to decisions of such international criminal courts as the international tribunals of
Nuremberg or Tokyo, or to national courts operating by virtue, and on the strength, of
Control Council Law no. 10 … These courts operated under international instruments lay-
ing down provisions that were either declaratory of existing law or which had been gradu-
ally transformed into customary international law. … In sum, international criminal courts
such as the International Tribunal must always carefully appraise decisions of other courts
before relying on their persuasive authority as to existing law. Moreover, they should
apply a stricter level of scrutiny to national decisions than to international judgments, as
the latter are at least based on the same corpus of law as that applied by international
courts, whereas the former tend to apply national law, or primarily that law, or else inter-
pret international rules through the prism of national legislation.252
If the Nuremberg-era case law cited in support of JCE III is categorized into
such a value-oriented hierarchy of judgments, it becomes evident that there is
insufficient support to conclude that this mode of responsibility crystallized into a
250The Case of the S.S. Lotus (France v. Turkey), Judgment, PCIJ (Series A—No. 10),
7 September 1927, at 28.
251Lauterpacht 1958, at 20–22.
252Prosecutor v Kupreškić and others (IT-95-16-T), Judgment, Trial Chamber, 14 January 2000,
para 540–542.
250 L. Yanev
norm of customary international law. The IMT Judgment, being delivered by an

internationally constituted court that applied international law, is at the top of this
hierarchy. As analyzed above, while the IMT recognized ‘the responsibility of per-
sons participating in a common plan’, it remained silent on the question of individ-
ual liability for the incidental crimes of a common plan.253 Next in order are the
judgments of the Nuremberg Military Tribunals: courts that were judicially recog-
nized as international in nature, applied only international criminal law as
enshrined in the Control Council Law No. 10 and differed from the IMT solely in
their composition.254 The RuSHA judgment is the only one from this category that
has been cited in modern jurisprudence to evince the customary status of JCE III
liability and the above research demonstrated that this claim is without merit.255 In
fact, as Clarke has also noted, none of the big 12 subsequent Nazi trials decided by
the Nuremberg Military Tribunals under the Control Council Law No. 10 clearly
adopted the notion of liability for the foreseeable crimes of a common design.256
The Allies’ military courts in occupied Germany, which conducted the zonal trials
against minor war criminals, can be placed further down this hierarchy and their
judgments should be given less weight than those of the IMT and the Nuremberg
Military Tribunals. This is so because, although the Allies established them under
the authority of the Control Council Law No. 10, the jurisdiction of these courts
was in fact never limited to applying strictly the law under the Control Council
Law No. 10. Rather, the US, British and French governments each enacted a sepa-
rate national legislative act that set up and governed the work of the courts in their
respective zones of occupation in Germany.257 These courts were thus domestic in
character and while they endeavored to apply international law in their proceed-
ings,258 it has been explained that they also relied on constructs rooted in their

254See supra note 198. In those instances where an issue arose that was not covered by the
Control Council Law No. 10, the Tribunals applied German criminal law, as the law of the
defendants. Separate and Dissenting Opinion of Judge Cassese, Judgment, Erdemović (IT-96-
22-A), Appeals Chamber, 7 October 1997, § 27.
256Clarke 2011, at 861.
257Cohen 2006, at 63; Koessler 1956, at 194–195.
258Regarding the US zonal trials, Koessler explained that ‘[c]oncerning forms of participa-
tion in a crime, charges in the Dachau trials were at least on their face based upon the general
principles regarding kinds of complicity recognized among all civilized nations rather than on
anything which is particular to the Anglo-American systems of law … No exception from this
general approach were the so-called common design charges’. Koessler 1950, at 82. See also
supra text accompanying notes 201–204. As for the British tribunals in occupied Germany,
they also emphasized in the Essen Lynching case that this was ‘not a trial under English Law’.
See Essen Lynching case, supra note 166, at 91. The UN War Crimes Commission also noted
that while members of the court in those trials often made references to domestic law notions,
they were ‘using the words almost in inverted commas’ and merely ‘as providing analogies on
which the Court might act.’ Law Reports of Trials of War Criminals: United Nations War Crimes
Commission, Vol. XV (London: Published for the United Nations War Crimes Commission by
His Majesty’s Stationary Office, 1949), at 9, 49.
national criminal law ‘on matters not covered by international criminal law’.259 In
this respect, Cassese also pointed out that decisions from these courts cannot be
considered to carry the same weight as those of the Nuremberg Military
Tribunals.260 Form all the above-researched Nuremberg-era cases that belong to
this category of judgments, the Borkum Island case is the only one that clearly
propounded the underlying rationale of JCE III liability.261 Any further examples
one may draw from the zonal trials in occupied Germany or, indeed, from the war
crimes trials conducted in the Pacific, would fall within this category. Finally, ‘the
least valuable’ category of judgments are those delivered by domestic courts that
applied national law. The group of Italian cases referred to in Tadić fall within this
category and, as the ECCC has also explained, their value for identifying custom-
ary international criminal law is negligible.262
The above résumé does not support a conclusion that JCE III liability has
a solid footing in the Nuremberg-era law and jurisprudence and that, as such, it
became a concept of customary international criminal law. While ‘common pur-
pose/design’ liability could be easily identified in judgments belonging to each of
the above-described four categories, the extension of this notion to also ascribe
liability for incidental crimes was mentioned only sporadically in early documents
and was not embraced in any of the major trials of Nazi war criminals. The mod-
ern international tribunals have sought support for JCE III responsibility mostly
in the smaller, zonal trials held by the American and British courts in occupied
Germany, records of which are often unavailable or difficult to access. Even if,
next to the Borkum Island trial, one could unearth several more such cases that
recognized the principle of liability for incidental crimes of a common crimi-
nal plan, it would still be doubtful whether, on their own, a couple of decisions
belonging exclusively to this particular category could firmly evince the customary
status of JCE III liability.
9.5 Conclusion
The joint criminal enterprise theory has played a key role in the case law of the
ECCC, seeing as it was applied to convict the defendants in all the Tribunal’s
cases thus far. Even though this JCE jurisprudence still amounts to only a few
decisions and judgments, it has already attracted much attention in legal practice
and in academia: a prominence that is largely due to the unprecedented review
which this doctrine underwent during its introduction at the Cambodia Tribunal.
259Separate and Dissenting Opinion of Judge Cassese, Judgment, Erdemović (IT-96-22-A),
Appeals Chamber, 7 October 1997, § 21.

260Ibid. See also Clarke 2011, at 860–861.
261See supra Sect. 9.4.2. (9.4.2.1; 9.4.2.2; and 9.4.2.3).
252 L. Yanev
Regarding the statement of the objective and subjective legal elements of JCE,
the ECCC largely recited the case law of the ICTY/R and did not provide any sig-
nificant further elaboration on this point. The one notable exception here is the
much broader definition of the common plan requirement which the Trial
Chamber endorsed in Case 002.263 The ‘resulted in and/or involved’ formula that
was adopted to deal with the non-criminal objective of the alleged JCE departs
from the customary definition of this mode of liability and dissolves the borders
between JCE I/II and JCE III responsibility. It thus impermissibly broadens the
scope of this theory and could serve to assign principal liability in breach of core
principles of criminal law. Aside from this regrettable interpretation of the JCE
law, the ECCC has strictly followed the ad hoc Tribunals’ definition of the constit-
uent elements of this doctrine and in one occasion also made a finding on a matter
that had not been specifically addressed by the ICTY/R: i.e. the conclusion that
JCE liability does not apply to domestic crimes.264
It was the decision to conduct a de novo research on the customary law status of
JCE, and the ensuing rejection of the theory’s ‘extended’ variant, that put the spot-
light on the ECCC’s JCE jurisprudence. The Pre-Trial Chamber’s analysis in its
May 2010 JCE Decision, which was later affirmed by the Trial Chamber both in
the September 2011 JCE Decision and in the Case 002/01 Trial Judgment, clearly
departed from Tadić’s conclusion that JCE III liability has a firm basis in custom-
ary international law. While the independent analysis that the ECCC judges con-
ducted on this point could be subjected to some criticism, the above research has
shown that the conclusion to ultimately reject the ‘extended’ type of JCE as lack-
ing customary basis is not without merit.265 Naturally, this raises questions about
the applicability of this particular construct in international criminal proceedings.
So far, the ICTY and the ICTR have refused to re-examine the customary status of
the ‘extended’ type of JCE and have largely neglected the above ECCC decisions.
Most recently, in the ICTY Đorđević and the ICTR Karemera and Ngirumpatse
cases the defendants cited ECCC jurisprudence to assert that JCE III has no basis
in customary international law.266 In both cases, the Appeals Chamber rejected the
said submissions after stressing that the Cambodia Tribunal’s case law is not bind-
ing on the UN ad hoc Tribunals and making cursory references to earlier ICTY/R
judgments that affirmed the customary status of JCE III.267 This is an unfortunate
response to the problem since, irrespective of what value ECCC’s precedents have
for any other international tribunal, what matters is that a careful perusal of all the
Nuremberg-era cases relied upon in Tadić (and by the STL) to support the
263See supra text accompanying notes 93–103 and 108–128.

266Đorđević Appeal Judgment, supra note 2, § 46; Judgment, Karemera and Ngirumpatse
(ICTR-98-44-A), Appeals Chamber, 29 September 2014, § 102.

267Đorđević Appeal Judgment, supra note 2, §§ 49–52; Judgment, Karemera and Ngirumpatse
(ICTR-98-44-A), Appeals Chamber, 29 September 2014, § 110.

‘extended’ variant of JCE indeed reveals that they do not offer sufficient evidence
of the customary status of this concept.268 Moreover, the present research has sub-
mitted that, pursuant to the ICTY’s own categorization of the value that different
judicial decisions have for identifying custom, it is evident that those few cases
that may be cited in support of JCE III do not present potent evidence of its forma-
tion as international custom.269 These considerations should provide the interna-
tional tribunals with cogent reasons to revisit the authorities cited to confirm the
customary basis of the ‘extended’ variant of JCE and thoroughly reassess their
conclusions on this mode of liability.
References
Alija-Fernández R (2013) Justice for No-Land’s Men? The United States Military Trials against
Spanish Kapos in Mauthausen and Universal Jurisdiction. In: Heller K, Simpson G (eds) The
Hidden Histories of War Crimes Trials. Oxford University Press, Oxford
Ambos K (2009) Amicus Curiae Brief in the Matter of the Co-Prosecutors’ Appeal of the Closing
Order Against Kaing Guek Eav ‘Duch’ Dated 8 August 2008. Crim Law Forum 20:353–388
Bassiouni M (2013) Introduction to International Criminal Law, 2nd edn. Martinus Nijhoff,
Leiden
Boas G, Reid N, Bischoff J (2008) Forms of Responsibility in International Criminal Law.
International Criminal Law Practitioner Library, Vol. 1. Cambridge University Press:
Cambridge
Cassese A (2009) Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal
of International Criminal Justice on Joint Criminal Enterprise Doctrine. Crim Law Forum
20:289–330
Cassese A (2013) Cassese’s International Criminal Law, 3rd edn. Oxford University Press,
Oxford
Clarke R (2011) Return to Borkum Island: Extended Joint Criminal Enterprise Responsibility in
the Wake of World War II. Journal of International Criminal Justice 9:839–861
Cohen D (2006) Transitional Justice in Divided Germany After 1945. In Elster J (ed) Retribution
and Reparation in the Transition to Democracy, Cambridge University Press, Cambridge
Ehlert C (2013) Prosecuting the Destruction of Cultural Property in International Criminal Law:
With a Case Study on the Khmer Rouge’s Destruction of Cambodia’s Heritage. Martinus
Nijhoff, Leiden
Gustafson K (2010) ECCC Tackles JCE: An Appraisal of Recent Decisions. Journal of
Heller K (2011) The Nuremberg Military Tribunals and the Origins of International Criminal
Law. Oxford University Press, Oxford
Jain N (2014) Perpetrators and Accessories in International Criminal Law: Individual Modes of
Responsibility for Collective Crimes. Hart, Oxford
Jordash W, Van Tuyl P (2010) Failure to Carry the Burden of Proof: How Joint Criminal
Enterprise Lost Its Way at the Special Court for Sierra Leone. Journal of International
Criminal Justice 8:591–613
Karnavas M (2010) Joint Criminal Enterprise at the ECCC: A Critical Analysis of the Pre-Trial
Chamber’s Decision against the Application of JCE III and Two Divergent Commentaries on
the Same. Crim Law Forum 21:445–494

254 L. Yanev
Koessler M (1950) American War Crimes Trials in Europe. The Georgetown Law Journal
39:18–112
Koessler M (1956) Borkum Island Tragedy and Trial. Journal of Criminal Law, Criminology, and
Political Science 47:183–196
Lauterpacht H (1958) The Development of International Law by the International Court. Stevens,
London
Marsh L, Ramsden M (2011) Joint Criminal Enterprise: Cambodia’s Reply to Tadić.
International Criminal Law Review 11:137–154
Meisenberg S (2014) Joint Criminal Enterprise at the Special Court for Sierra Leone. In: Jalloh C
(ed) The Sierra Leone Special Court and its Legacy: the Impact for Africa and International
Criminal Law. Cambridge University Press, Cambridge
Milanovic M (2007) An Odd Couple: Domestic Crimes and International Responsibility in the
Special Tribunal for Lebanon. Journal of International Criminal Justice 5:1139–1152
O’Rourke A (2006) Joint Criminal Enterprise and Brđanin: Misguided Overcorrection. Harvard
International Law Journal 47:307–325
Ohlin D (2009) Joint Criminal Confusion. New Criminal Law Review 12:406–419
Olásolo H (2009) The Criminal Responsibility of Senior Political and Military Leaders as
Principals to International Crimes. Hart, Oxford
Piacente N (2004) Importance of the Joint Criminal Enterprise Doctrine for the ICTY
Prosecutorial Policy. Journal of International Criminal Justice 2:446–454
Pomorski S (1990) Conspiracy and Criminal Organization. In: Ginsburgs G, Kudriavtsev V (eds)
The Nuremberg Trial and International Law. Martinus Nijhoff, Dordrecht
Scharf M (2013) Customary International Law in times of Fundamental Change: Recognizing
Grotian Moments. Cambridge University Press, Cambridge
Shahabuddeen M (2004) Does the Principle of Legality Stand in the Way of Progressive
Development of Law? Journal of International Criminal Justice 2:1007–1017
Shahabuddeen M (2011) Teething Phase of the ECCC. Chinese Journal of International Law
10:468–502
Steer C (2010) Non-state Actors in International Criminal Law. In: D’Aspremont J (ed)
Participants in the International Legal System: Multiple perspectives on non-state actors in
international law. Routledge, London, pp 295–310
Tomaz J (2012) The Mauthausen Trial: American Military Justice in Germany. Harvard
University Press, Cambridge
Trainin A (1945) Hitlerite Responsibility under Criminal Law. Hutchinson & Co., London
Van Sliedregt E (2007) Joint Criminal Enterprise as a Pathway to Convicting Individuals for
Genocide. Journal of International Criminal Justice 5:184–207
Williams S (2012) Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional
Issues. Hart, Oxford
Chapter 10
Legal Constraints in the Interpretation
of Genocide
Mélanie Vianney-Liaud
Abstract Crimes committed by the Khmer Rouge in Cambodia in the 1970s are
known as being among the most violent atrocities of the 20th century. Yet, the
legal characterization of such acts as genocide has been subject of serious legal
controversies beyond the ECCC. As a consequence genocide charges have only
been retained in Case 002 against the last Khmer Rouge senior leaders, and those
charges are very restricted and does not include the majority of the Cambodian
victims. Such a decision irrefutably disappoints many victims who consider that
their suffering was not recognized by the ECCC. This chapter identifies and analy-
ses the legal constraints with respect to the legal characterization of the Khmer
Rouge atrocities as a crime of genocide.
Keywords Genocide · Protected groups · Minority groups · Political groups ·

Genocidal intent · Nullum crimen sine lege · Customary international law
The author is a Ph.D. candidate (International Criminal Law) at the Aix-Marseille University III,
France and a legal consultant in a victims’ team at the International Criminal Court. Some
sections of this chapter have been the subject of a first publication, see M. Vianney-Liaud,
‘Controversy on the Characterization of Genocide at the Extraordinary Chambers in the Courts
of Cambodia’, Brief 8 International Crimes Database (October 2014), available at http://www.
internationalcrimesdatabase.org/Commentary/IcdBriefs2014 (visited 15 June 2015). The author
is thankful to Simon Meisenberg and Clare Slattery for their relevant suggestions and comments.
M. Vianney-Liaud (*)
Aix-Marseille University III, Aix-En-Provence, France
e-mail: melanie.vianneyliaud@gmail.com

DOI 10.1007/978-94-6265-105-0_10
256 M. Vianney-Liaud
Contents
10.1 Introduction........................................................................................................................ 256
10.2 Determining the Applicable Genocide Definition at the ECCC........................................ 259
10.2.1 The Application of the Prohibition of Genocide Under the DK Regime............... 260
10.2.2 The Definition of the Crime of Genocide Under the DK Regime......................... 261
10.3 Applying the Genocide Convention’s Definition to the Khmer Rouge Crimes................. 272
10.3.1 Identifying the Protected Groups........................................................................... 274
10.3.2 Establishing Genocidal Intent................................................................................ 279
10.4 Conclusion......................................................................................................................... 291
References................................................................................................................................... 292
10.1 Introduction
The crimes committed by the Khmer Rouge in Cambodia from 1975 to 1979 are
among the most violent massacres of the 20th century. However, the characteriza-
tion of such acts as genocide is considered controversial. Indeed, while the word
‘genocide’ has considerable appeal,1 it turns out to be a legally restrictively
defined crime. The 1948 Convention on the Prevention and Punishment of
Genocide (the Genocide Convention), in particular, requires the intentional
destruction of a national, racial, ethnical or religious group, in whole or in part.2
After the overthrow of the Democratic Kampuchea (DK) regime by the
Vietnamese military troops in 1979, the word ‘genocide’ was almost immediately
put at the heart of an international political agenda. For fear of Soviet expansion-
ism in Asia,3 the United States, China and their allies decided to help the remain-
ing Khmer Rouge members to fight against the Popular Republic of Kampuchea
(PRK), the newly installed Vietnam-backed regime in Cambodia.4 They refused to
acknowledge the gravity of the abuses5 perpetrated by the Khmer Rouge authori-
ties, the Communist Party of Kampuchea (CPK), while in power. In particular,
they rejected the characterization of the crimes as genocide, defending the political
nature of the conduct,6 while the PRK and Vietnam strongly argued that it consti-
tuted genocide.7 However, in such a political context, the arguments of Vietnam
were considered as a justification and pretext for the invasion into Cambodia,
rather than as the revelation of undisputable facts.8 In the 1990s, the United
1Schabas 2001, at 293.

2Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December
1948, entered into force 12 January 1951) 78 UNTS 277 (hereafter Genocide Convention).
3The USSR supported Vietnam.
4Boyle 1999, at 775.
5For example, in 1979, the study of a damning report on the situation of DK by the Commission
on Human Rights of the United Nations was suspended, see ibid., at 776.
6Boyle 2004, §§ 228, 240.
7Ibid., § 227.
8Sliwinski 1995, at 167 (unofficial translation).
10 Legal Constraints in the Interpretation of Genocide 257
Nations General Assembly and some States recognized the impact of the atrocities
perpetrated by the Khmer Rouge. They also referred to ‘genocide’.9 Nowadays,
those crimes are still seen to exemplify ‘genocide’ both in Cambodia and the rest
of the world,10 whereas their legal characterization has not yet been established.
A decision and findings on the crime of genocide by the ECCC are still to be
expected. In Case 001, Kaing Guek Eav alias Duch was not charged with geno-
cide. In September 2010, the Co-Investigating Judges (CIJs) issued a Closing
Order in Case 00211 originally indicting four accused, including Khieu
Samphan,12 Nuon Chea,13 Ieng Sary14 and his wife, Ieng Thirith.15 In January
2011, the Pre-Trial Chamber (PTC)16 confirmed the indictment, with minor
changes, and ordered that those four people (the last surviving Khmer Rouge lead-
ers) stand trial for charges of crimes against humanity, war crimes, genocide and
other crimes under Cambodian law.17 The genocide charges only encompass
crimes committed against two minority groups, the Cham and the Vietnamese,
whereas the vast majority of Khmer Rouge victims were ethnic Khmers.18
To date, the CIJs’ Closing Order and the PTC’s decision on appeal are the sole
decisions on genocide by ECCC judicial organs. Prior to the evidentiary phase, the
Trial Chamber decided to sever Case 002 into smaller trials in September 2011.
The genocide charges were excluded from the scope of the first trial, referred to as
Case 002/01.19 Only in the second part of the Case 002 trial, i.e. Case 002/02, will
9See e.g., the GA Res. 52/35, 12 December 1997, Preamble; Cambodian Genocide Act 1994
(United States Congress).
10See Forster 2012, at 39.
11See ECCC, ‘Co-Investigating Judges indict Khieu Samphan, Nuon Chea, Ieng Sary and Ieng
Thirith’ (16 September 2010), available at http://www.eccc.gov.kh/en/articles/co-investigating-

judges-indict-khieu-samphan-nuon-chea-ieng-sary-and-ieng-thirith (visited 15 June 2015).
12Former Head of DK, see ECCC, ‘Khieu Samphan, Profile’, available at http://www.eccc.
gov.kh/en/indicted-person/khieu-samphan (visited 15 June 2015).

13Former Deputy Secretary of the CPK, see ECCC, ‘Nuon Chea, Profile’, available at
http://www.eccc.gov.kh/en/indicted-person/nuon-chea (visited 15 June 2015).

14Former Deputy Minister for Foreign Affairs, see ECCC, ‘Ieng Sary, Profile’, available at
http://www.eccc.gov.kh/en/indicted-person/ieng-sary (visited 15 June 2015). Ieng Sary died on

14 March 2013.
15Former Minister of Social Affairs, see ECCC, ‘Ieng Thirith, Profile’, available at http://www.eccc.
gov.kh/en/indicted-person/ieng-thirith (visited 15 June 2015). Ieng Tirith was declared unfit to stand
trial due to mental illness on 13 September 2012. She died on 22 August 2015.
16The Pre-Trial Chamber hears motions and appeal2s against orders issued by the
Co-Investigating Judges while the case is under investigation.

17See ECCC, ‘Case 002 sent for trial’ (13 January 2011), available at http://www.eccc.gov.kh/fr/
node/10480 (visited 15 June 2015).

18Jarvis and Fawthrop 2004, at 224: ‘The vast majority of the atrocities were carried out by
Khmers against Khmers.’

19Severance Order Pursuant to Internal Rule 89ter, Nuon Chea and others (002/19-09-2007/
ECCC-E124), Trial Chamber, 22 September 2011.

the accused stand trial for the genocide charges.20 The Trial Chamber rendered its
judgment on 7 August 2014 in Case 002/01 and sentenced Khieu Samphan and
Nuon Chea, the two remaining accused, to life imprisonment.21 The evidentiary
hearings of Case 002/02 began on 17 October 2014.
The Khmer Rouge atrocities are a prominent example of the political abuse of
the word ‘genocide’.22 Such general accusations have contributed to alter the defi-
nition of this term. ‘Genocide’ in its common and popular use does not merely
refer to mass crimes, but to the pure evil,23 the crime of crimes.24 Thus, for most
victims of mass atrocities, the acknowledgement that the crimes perpetrated
against them resulted in genocide is of great importance. Such a ‘label’ identifies
them as victims of what is considered to be the most heinous crime.25
Consequently, the decision of the CIJs has disappointed many Cambodians.26
The ECCC example demonstrates the rocky road from general allegations of
genocide to institutionalized judicial proceedings.27 The victims’ extreme sensitiv-
ity and the misunderstandings resulting from the different uses of the word ‘geno-
cide’ complicate the judges’ work of characterization. In order to ensure the
fairness, independence and impartiality of their decisions, the ECCC is subjected
to a number of legal constraints. The aim of this chapter is to identify these con-
straints and analyze their influence on the process of legal characterization of the
Khmer Rouge crimes as genocide.
As a first step, this requires to determine which definition of genocide may be
adopted by the ECCC (Sect. 10.2). The ECCC’s jurisdiction is limited to crimes
committed between 17 April 1975 and 6 January 1979.28 If Cambodia was already
20Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E301/9/1), Trial Chamber, 4 April 2014.

21Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E1/241.1), Trial Chamber, 7 August
2014 (hereafter ‘Case 002/01 Trial Judgment’).

22Sémelin 2005, at 481–508.
23See e.g. Sémelin 2005, at 482. The Khmer expression for genocide, prolai pouch-sas,
roughly means to eliminate the lineage of a people or a nation, and that definition echoed many
Cambodians’ personal experiences under the Khmer Rouge, see Giry 2014.
24From a legal point of view, most jurists agree that international law establishes no formal
hierarchy among mass crimes, in particular, see the interview of former Co-Investigating Judge
Lemonde in which he expresses that point of view: ‘the notion of crimes against humanity is no
less severe than the notion of genocide’, in R. Lainé, J. Reynaud, ‘Khmer Rouge, une simple
question de justice’, The Factory—Fontana—Arte France—RTBF, 2011 (unofficial translation).
However, many are those who admit the position of genocide on the top, because of the harm that
that crime addresses. For a discussion on the ranking of genocide, crimes against humanity and
war crimes, see e.g. Bogdan 2002, at 5–9.
25Sémelin 2005, at 484.
26Forster 2012, at 31. See also the national ECCC Co-Investigating Judge, You Bunleng: ‘For
Cambodians, the concept of genocide has always been admitted’ in Lainé, Reynaud, supra note
24 (unofficial translation).
27Forster 2012, at 39.
28ECCC Agreement, Article 1; ECCC Law, Article 1.
a party to the Genocide Convention at that time, the exact scope of the legal defini-
tion of the crime has been subjected to debate, in particular owing to its status as a
jus cogens norm of customary international law. Moreover, the ECCC founding
texts—the Agreement between the United Nations and Cambodia concerning the
prosecution of the crimes committed during the period of DK (the ECCC
Agreement) and the Cambodian Law on the establishment of the ECCC (the
ECCC Law)—include different definitions of the crime. It is vital to clarify which
of these definitions is binding as the definition of the crime determines the scope
of any genocide charges.
In the Closing Order, the CIJs applied the Genocide Convention’s defini-
tion. However, that definition is restrictive, and can make the characterization of
criminal acts as genocide difficult. At the ECCC, particularly, its application and
interpretation raise considerable questions because of the context and the specific
nature of the perpetrated Khmer Rouge abuses. The analysis of the committed
crimes and the CPK policies in light of the Genocide Convention’s provisions, as
a second step, will identify most of these difficulties which, very likely, are at the
origin of the exclusion of a great number of crimes from the genocide charges in
the Closing Order (Sect. 10.3).
10.2 Determining the Applicable Genocide Definition

at the ECCC
The ECCC Law29 and Agreement30 both provide that the Extraordinary Chambers
shall exercise their jurisdiction in accordance with the provisions of Article 15 of
the International Covenant on Civil and Political Rights (ICCPR). According to
Article 15(1),31 criminal offences shall be defined by law. The law shall also have
existed when the relevant acts were committed: the nullum crimen sine lege princi-
ple prohibits retrospective criminal legislation.
The ECCC Law was adopted in 2001.32 Article 4 provides that the ECCC ‘shall
have the power to bring to trial all Suspects who committed the crimes of genocide
as defined in the [Genocide] Convention …, and which were committed during the
period from 17 April 1975 and 6 January 1979.’ The Genocide Convention entered
into force in 1951, however the 2001 ECCC Law is the first Cambodian
29ECCC Law, Article 33(new).

30ECCC Agreement, Article 12.
31International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171, Article 15(1): ‘No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal offence, under
national or international law, at the time when it was committed.’
32The 2001 ECCC Law was then amended in 2004 in order to be brought into conformity with
the ECCC Agreement adopted in 2003. Article 4 of the ECCC Law on the crime of genocide has
not been modified.
codification and criminalization of the crime of genocide. This raises the question
of whether any prosecution of Khmer Rouge crimes committed in the 1970s,
according to the ECCC Law, would violate the nullum crimen sine lege principle
(Sect. 10.2.1).
Furthermore, article 4 of the ECCC Law defines the crime of genocide differ-
ently to the definition of the Genocide Convention. Such discrepancies may have
a significant impact on the scope of genocide liability. Consequently, determining
which of the definitions applies at the ECCC is crucial (Sect. 10.2.2).
10.2.1 The Application of the Prohibition of Genocide Under

the DK Regime
On the basis of the nullum crimen sine lege principle, Ieng Sary’s defense team
argued that the crime of genocide was not applicable before the ECCC. In particu-
lar, they noted that genocide did not exist in domestic law at the time of the Khmer
Rouge’s regime.33 Further they claimed that substantive international criminal law,
including the Genocide Convention, could not be directly applied in ‘Cambodian
courts’.34
The CIJs defined the requirements for the crime of genocide before the ECCC
in the Closing Order of Case 002. Firstly, the offence has to be provided for in the
ECCC Law. Secondly, the Genocide Convention as part of international law shall
‘have been sufficiently accessible at the relevant time’ in order that ‘the persons
under investigation … have been able to foresee that they could be held criminally
liable.’35 The CIJs noted that when Cambodia joined the ‘French Union’ and
acquired sovereign autonomy in 1949, it acceded to the Genocide Convention.36
Consequently, under the DK regime, the Convention was applicable to Cambodia
33Ieng Sary’s Motion Against the Applicability of the Crime of Genocide at the ECCC, Nuon
Chea and others (002/19-09-2007/ECCC-D240), Ieng Sary Defense, 30 October 2009, § 13

(hereafter Ieng Sary’s Motion on Genocide).
34Ibid., § 17; see also Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-D240), Ieng Sary Defense, 25 October 2010, § 115. The national
or international nature of the ECCC has been subjected to discussion, see e.g. Williams
2004, at 232 (the constitutive instrument for the ECCC is the ECCC Law, and not the ECCC
Agreement); see contra Nouwen 2006, at 200 (pointing out that though the ECCC Law was
adopted two years before the 2003 Agreement, it was later amended to incorporate the provi-
sions of the Agreement). Finally, the ECCC judicial bodies determined the hybrid nature
of the ECCC, see e.g. Decision on Request for Release, Kaing Guek Eav alias Duch
(001/18-07-2007/ECCC-E39/5), Trial Chamber, 15 June 2009, § 10: ‘Although its constitutional
documents show that the ECCC was established within the Cambodian courts structure, the
ECCC is, and operates as, an independent entity within this structure.’
35Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427), Co-Investigating
Judges, 15 September 2010, § 1302 (hereafter Closing Order).

36Ibid., § 1310.
and the prohibition of genocide ‘can be considered to have been sufficiently acces-
sible to the Accused as members of Cambodia’s governing authorities.’37
The CIJs’ reasoning was upheld by the PTC on appeal. The Chamber noted that
‘Cambodia did not enact enabling legislation pursuant to its obligation under …
the Genocide Convention does not relieve the Accused of liability’. In particular,
‘the jus cogens nature of the crime of genocide … is sufficient to justify prosecu-
tion’.38 It also added that given the fact that ‘genocide was criminal’ it was acces-
sible to the accused ‘because of the pre-existing customary nature of the rule’. The
PTC recalled the 1946 UN General Assembly’s resolution 96(I)39 which recog-
nized genocide as an international crime.40 In that resolution, the General
Assembly requested the Economic and Social Council to draw up a draft Genocide
Convention, which was adopted two years later.
Both the CIJs and the PTC considered that the prohibition of genocide
existed and applied to Cambodia when the Khmer Rouge’s atrocities occurred.
Consequently, and contrary to the assertion of Ieng Sary’s defense team, the
incrimination of genocide can be applied at the ECCC. However, if the exist-
ence of the crime in the 1970s is certain, the exact contours of its elements remain
controversial.
10.2.2 The Definition of the Crime of Genocide Under

the DK Regime
Article 9 of the ECCC Agreement and Article 4 of the ECCC Law provide that the
ECCC has jurisdiction over the crime of genocide ‘as defined in the 1948
Convention on the Prevention and Punishment of the Crime of Genocide’.41
Article II of the Genocide Convention defines the crime of genocide as the
intentional destruction, in whole or in part, of a national, racial, ethnical or reli-
gious group as such. Despite the reference of the ECCC Agreement and Law to
the Genocide Convention, Article 4 of the ECCC Law appears to have an altered
definition of the crime. In particular, the term ‘as such’ has been altered to ‘such
37Ibid.,§ 1305. Case 002’s Closing Order concerned the four last surviving highest-ranking Khmer
Rouge cadres. According to the CIJs’ reasoning, the question remains of whether defendants who
were not part of the highest Khmer Rouge’s authorities and only lower ranking cadres, had the
same access to and knowledge of international law, could be indicted for genocide. With regard to
this question, it is interesting to note that on 9 December 2015, the International Co-Investigating
Judge charged Yim Tith, a suspect in Case 004, with the alleged crime of genocide.
38Decision on Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others
(002/19-09-2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 244 (hereafter

Decision on Ieng Sary’s Appeal).
39GA Res. 96(I), 11 December 1946.
40Decision on Ieng Sary’s Appeal, supra note 38, § 246.
41ECCC Agreement, Article 9; ECCC Law, Article 4.
as’ and the modes of participation in the crime differ. These modifications and
their impact will be addressed below (Sect. 10.2.2.1). Further, given the nullum
crimen sine lege principle, such a modified definition raises the question whether a
broader definition of genocide existed at the time of the Khmer Rouge crimes and
can be applied at the ECCC (Sect. 10.2.2.2).
10.2.2.1 Discrepancies Between the ECCC Law and the Genocide

Convention
The discrepancies in the ECCC Law may have consequences on the scope of any
accountability of the accused persons, as it may impact elements of intent, the
underlying acts, and the modes of participation.
Genocidal Intent and Underlying Acts
With respect to underlying offences, the ECCC Law does not use the expression of
‘any of the following acts’, as used in Article II of the Genocide Convention.
Instead, the ECCC Law simply refers to ‘any acts’. Moreover, the ending phrase
after the discriminatory elements ‘as such’ has been altered to ‘such as’.42 These
two differences have major implications. First, as noted in the Closing Order, the
list of enumerated acts found in the Genocide Convention is exhaustive, while the
list of acts found in the ECCC Law is not.43 The Genocide Convention is limited
to acts seeking the physical or biological destruction of the relevant group.44 The
altered ECCC Law’s definition allows for a broader reading, as the listed underly-
ing offences are not exclusively enumerated by the inclusion of the words ‘any
acts’ and ‘such as’. This signifies that the underlying offences are not exhaustively
listed. Therefore criminal acts of a different category, such as forced transfer of the
42Genocide Convention, supra note 2, Article II: ‘Genocide means any of the following acts
committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such: […]’; ECCC Law, Article 4: ‘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, such
as: (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.’
43Closing Order, supra note 35, § 1311; Ieng Sary’s Supplemental Alternative Submission
to His Motion Against the Applicability of Genocide at the ECCC, Nuon Chea and others
(002/19-09-2007/ECCC-D240/2), Ieng Sary’s Defense, 21 December 2009 (hereafter Ieng Sary’s
Supplemental Submission), § 11.
44See Judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, § 580: ‘[C]ustomary inter-
national law limits the definition of genocide to those acts seeking the physical or biological
destruction of all or part of the group.’
population45 or forced marriages (as organized rapes),46 could arguably be added

to the scope of genocide liability.47
Secondly, as raised by Ieng Sary’s defense team, the words ‘as such’ refer to the
targeted group. Such a wording has an impact on the applicable burden of proof. It
has to be shown that the perpetrator’s intent was to destroy the group as a distinct
entity and not only to target members of the group based on their membership.48
The altered phrase ‘such as’ lowers the intent requirement. The perpetrator would
still be liable for genocide, even if his or her acts were committed without intend-
ing to destroy the group ‘as such’.49 In addition, the deletion of the ‘as such’
requirement obscures the distinction between genocide and persecution as a crime
against humanity.50 The intent to destroy a group as a distinct entity is not an ele-
ment of that last crime, while it is part of the special intent of the crime of
genocide.
Moreover, differences exist between each of the working language versions of
Article 4 of the ECCC Law. The French version does not contain any discrepancy
with the Genocide Convention. The Khmer one includes a phrase which translates
to ‘any of the following acts’, but ends with ‘such as’.51 This generates uncertainty
in regard to the choice of the version to apply52 and suggests that those discrepan-
cies are the result of a scrivener’s error.53 The previous English version of the Law
adopted in 200154 which complied with the Genocide Convention, used the words
‘as such’. However, when the ECCC Law was amended in 2004, the phrase was
switched to ‘such as’ although the article was not highlighted as being amended as
is usually the case.55 This has led to speculation that the alteration was unintended
modification.
45See Judgment, Krstić (IT-98-33-A), Appeals Chamber, 19 April 2004, § 33: ‘The fact that the
forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial
Chamber from relying on it as evidence of [intent] […]’.
46See Judgment, Akayesu (ICTR-96-4-T), Trial Chamber I, 2 September 1998, § 731: ‘[R]ape
and sexual violence […] constitute genocide in the same way as any other act as long as they
were committed with the specific intent to destroy, in whole or in part, a particular group targeted
as such.’
47See ECCC Law, Article 5 which provides jurisdiction for the ECCC over crimes against
humanity explicitly includes ‘deportation’, ‘rape’, and ‘other inhuman acts’.

48See e.g. Judgment, Bagilishema (ICTR-95-1A-T), Trial Chamber I, 7 June 2001, § 64;
Judgment on Defence Motions to Acquit, Sikirica and others (IT-95-8-T), Trial Chamber, 3
September 2001, § 89.
49Ieng Sary’s Supplemental Submission, supra note 43, § 12.
51Olivie and Muwero 2009, at 6.
54ECCC Law, Article 4; Olivie and Muwero 2009, at 11.
55In the 2004 version, the word ‘new’ follows the amended articles.
Modes of Participation in Genocide
Article III of the Genocide Convention provides for five possible modes of partici-
pation for the commission of genocide, whereas the ECCC Law only includes
three. ‘Conspiracy’ and ‘attempt to commit genocide’56 appear in both texts. The
ECCC Law, however, does not list ‘act of genocide’, ‘direct and public incitement
to commit genocide’, and ‘complicity in genocide’. It appears that such modes of
responsibility were substituted with ‘participation in acts of genocide’. Article 29
of the ECCC Law provides that ‘any suspect who planned, instigated, ordered,
aided and abetted, or committed the crimes referred to in [Article 4] of this law
shall be individually responsible for the crime’. It has been suggested that the
absence of the three modes of participation in the ECCC Law has thus been cor-
rected.57 However this view has been challenged by Ieng Sary’s defense team who
argued that if the drafters of the ECCC Law wished to include ‘direct and public
incitement to commit genocide’, and ‘complicity in genocide’, they would have
used the wording of Article III.58
The word ‘participation’ as used in Article 4 of the ECCC Law is not a techni-
cal term. It ordinary means ‘the fact of taking part in some action’, for instance, a
crime. The International Criminal Tribunals for the former Yugoslavia and
Rwanda59 (the ad hoc Tribunals) use ‘participation’ when the different modes of
participation of the Genocide Convention are being referred to collectively.60 If the
wording ‘participation in genocide’ is considered as a catch-all category, however,
the scope of genocide liability is arguably enlarged, since any form of participa-
tion in genocide could be incriminated.61
If applied, the alterations in the ECCC Law would simplify the characterization
of the crimes committed by the Khmer Rouge as genocide. However, in the parlia-
mentary debates preceding the adoption of the ECCC Law in 2001, and its amend-
ment in 2004, nothing indicates the express will of the Cambodian legislature to
expand the definition of the crime. On the contrary, it was affirmed that the 2001
ECCC draft Law was ‘based on … [the] condemnation of crimes of genocide
56The word ‘attempt’ is singular in the Convention, while it is in plural in the ECCC Law:
‘attempts to commit genocide’ (emphasis added).

57Boyle 2004, § 1041; Olivie and Muwero 2009, at 22; Ardema 2006, at 61.
58Ieng Sary Supplemental Submission, supra note 43, §§ 16–19.
59The ICTY and ICTR have jurisdiction over the crime of genocide as it is defined in the
Convention, Article 6(1) ICTYSt. and Article 7(1) ICTRSt.

60See e.g. Judgment, Kayishema and Ruzindana (ICTR-95-1-A) Appeals Chamber, 1 June 2001,
§ 185; Judgment and Sentence, Musema (ICTR-96-13-A), Trial Chamber I, 27 January 2000,
§ 114.
approved by the United Nations convention in 1948’.62 The drafting history of the
Cambodian criminalization of genocide suggests yet an intentional alteration of
the Genocide Convention in order to enlarge the scope of genocide liability.63
Long before the ECCC was set up, a People’s Revolutionary Tribunal was
established by the PRK.64 The Decree Law No. 1, dated 15 July 1979,65 was
directed at the prosecution of the ‘Pol Pot-Ieng Sary clique’ and provided for the
jurisdiction over a made-to-measure crime purporting to be genocide.66 Pol Pot
and Ieng Sary were convicted in abstentia and sentenced to death on 19 August
1979.67 The PTC found that the 1979 Decree Law did not have the force of law, as
it was adopted by the People’s Revolutionary Council and expressed the views of
that executive body with respect to the guilt of Pol Pot and Ieng Sary. As such, it
did not meet ‘generally accepted principles of law’ and did not provide a legal
basis required to create a tribunal and define any jurisdiction. The PTC rightly
rejected the 1979 conviction.68
In 1999, when the negotiations between the United Nations and the Cambodian
Government on the establishment of the ECCC commenced, the Cambodian
authorities proposed a first draft law which included a group defined by ‘wealth,
level of education, sociological environment (urban/rural), allegiance to a political
system or regime (old people/new people), social class or social category (mer-
chant, civil servant, etc.)’.69 The representative of the United Nations refused to
accept such a definition, claiming it would be contrary to the nullum crimen sine
lege principle.70 Such attempts to modify the definition of genocide would there-
fore be in vain, given the principle of the prohibition of retroactive offences,
unless it is established that a broader definition of such a scope existed at the time
of the crimes in the 1970s.
62Minutes of the Session of the National Assembly of the Kingdom of Cambodia, A Draft Law
on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecuting

Crimes Committed During the Period of Democratic Kampuchea, 29 December 2000, in
Documentation Center of Cambodia, 13 Searching for the Truth (January 2001), at 80.
63Ieng Sary’s Supplemental Submission, supra note 43, § 18; Forster 2012, at 37.
64See Selbmann, Chap. 4 in this Volume.
65Decree Law No.1: Establishment of People’s Revolutionary Tribunal at Phnom Penh to Try
the Pol Pot-Ieng Sary Clique for the Crime of Genocide, 15 July 1979, available at http://
law.scu.edu/wp-content/uploads/Decree_Law_No._1.pdf (visited 15 June 2015 2015).
66‘Acts of genocide’ were ‘planned massacres of groups of innocent people, expulsion of inhabit-
ants of cities and villages in order to concentrate them, and force them to do hard labor in condi-
tions leading to their physical and mental destruction; wiping out religion, destroying political,
cultural and social structures and family and social relations’ in Linton 2007, at 209.
67Ibid.
68Decision on Ieng Sary’s Appeal, supra note 38, §§ 165–175; see also Report of the Group of
Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, UN Doc.
S/1999/231, A/53/850, 16 March 1999, Annex, § 43 (hereafter Report of the UN Group of
Experts).
69Schabas 2001, at note 23.
70Etcheson 2006, at 8.
10.2.2.2 Existence of a Broader Definition of Genocide Under

the DK Regime
The Genocide Convention is not applicable in domestic courts. By ratifying the

Genocide Convention, a party merely commits itself to ‘enact (…) the necessary
[domestic] legislation to give effect to the provisions of the Convention.’71
However, as the PTC noted, the Genocide Convention confirmed a rule, which pre-
existed in customary international law.72 Some authors consider that the adopted
definition of the Genocide Convention is only a diplomatic compromise between
the state parties.73 Consequently, it is not prohibited to adopt a different definition
of genocide within a domestic legal framework.
This raises the important question regarding the jurisdiction of the ECCC
whether an extended definition of genocide existed in customary international law
at the time of the Khmer Rouge atrocities, and in particular if such a broader cus-
tomary international law definition included political and economic groups.
The Definition of Genocide in Customary International Law
Some authors argue that the crime of genocide covered by customary international
law goes beyond the Genocide Convention’s definition. The term ‘genocide’ was
developed by Rafael Lemkin, a Polish jurist, as a result of the persecution of Jews in
Nazi-Germany. In his book Axis Rule in Occupied Europe, he dedicated a whole
chapter to ‘genocide’74 basing his reasoning on the practices of the Nazis. However, in
his own understanding, ‘genocide’ did not only apply to the Nazi anti-Jewish policy.75
In December 1946, the UN General Assembly unanimously adopted the resolu-
tion 96(I). The resolution states that ‘[g]enocide is a denial of the right of exist-
ence of entire human groups’. Considering that ‘[m]any instances of such crimes
of genocide have occurred when racial, religious, political and other groups have
been destroyed, entirely or in part’, it then affirms that ‘genocide is a crime under
international law which the civilized world condemns … whether the crime is
committed on religious, racial, political or any other grounds’.76 Several authors
have relied on that text to claim that the customary definition of genocide is
broader than its codification in the Genocide Convention.77 However, other schol-
ars have opposed this argument, pointing to the ambiguous status of General
71Genocide Convention, supra note 2, Article V.

72Ibid., Article I: ‘The Contracting Parties confirm that genocide […] is a crime under interna-
tional law’ (emphasis added); Decision on Ieng Sary’s Appeal, supra note 39, § 246.
73See e.g. Ascensio 2010, at 48; van Schaak 1997, at 2261.
74Lemkin 1944, at 79–92.
75Akhavan 2012, at 95.
76GA Res. 96(I), supra note 39.
77Ascensio 2010, at 49; van Schaack 1997, at 2280.
Assembly resolutions in international law. In particular, they consider that the pre-
liminary discussions of the United Nations Committee which drafted resolution
96(I) were too superficial to be convincing and authoritative.78 Remarkably, the
PTC mentioned the General Assembly resolution to establish the ‘pre-existing cus-
tomary nature’ of the criminalization of genocide, but without drawing any conclu-
sion concerning the content of that rule.79
Another argument put forward is the state practice. Indeed, the implementation
of the Genocide Convention into national legal orders has at times resulted in a
broader understanding and definition of genocide.80 France, for instance, has
added the ‘group determined by any (…) arbitrary criterion’ to the four groups
protected by the Genocide Convention.81 However, scholars do not agree upon the
extent and authority of such state practice for the customary definition of the crime
of genocide. For some, it is sufficient to contribute and shape a broader defini-
tion.82 For others, it remains too marginal to be significant.83 It has to be noted that
the tendency to broaden the definition through national legislatures began after
that the Khmer Rouge committed their crimes.84 Consequently, such state practice
would only confirm that the Genocide Convention’s definition is not sacrosanct.85
From the above, there appears to be no clear customary definition of genocide
in the 1970s. Therefore, a strict application of the alterations in the ECCC Law
may violate the nullum crimen sine lege principle.86 The CIJs noted ‘in order to
avoid a breach of th[at] principle, [they] will take into consideration Article 9 of
the ECCC Agreement and Article 4 of the ECCC Law … and apply the interna-
tional definition of genocide.’87 Despite this reasonable approach,88 the CIJs’
78Schabas 2000, at 150; Nersessian 2010, at 101–102.

79Decision on Ieng Sary’s Appeal, supra note 38, § 246.
80Van Schaack 1997, at 2250–2260. The author mentions several states whose penal codes pro-
vide for an extended definition of the crime of genocide.

81Code pénal (Paris: Dalloz, 2014), Article 211–1.
82Ascensio 2010, at 47; Boyle 2004, § 224.
83Nersessian 2010, at 92–93.
84For instance, the French definition was adopted in 1994.
85See e.g. Ascensio 2010, at 51. The author notices that the Convention’s definition has been
slightly modified for its application at the International Criminal Court with the adoption in 2002
of the Elements of Crimes which add the ‘contextual element’. In particular, see Article 6(a)4:
‘The conduct took place in the context of a manifest pattern of similar conduct directed against
that group or was conduct that could itself effect such destruction.’
86Boyle 2004, § 224.
87Closing Order, supra note 35, § 1311 (emphasis added).
88ECCC Agreement, Article 12 provides: ‘where there is uncertainty regarding the interpreta-
tion of 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 […] be sought in pro-
cedural rules established at the international level.’ Article 12 only concerns ‘procedural rules’.
However, since the different language versions of Article 4 of the ECCC Law create uncertainty
as for its application and there is doubts regarding its consistency with the nullum crimen sine
lege principle, the CIJs may have conceivably been influenced by the spirit of that rule, see
ECCC Agreement, Article 12(1) and (2).
d ecision has confined the ECCC to a narrow definition of genocide. It disappointed

many victims who hoped for a broader customary definition of genocide, which, in
particular, would have included political groups.
The Exclusion of Political and Economic Groups
It was argued by one group of civil parties89 in Case 002 that the ECCC should
also recognize the persecution of the so called ‘new people’ as genocide. ‘New
people’ were identified as persons who lived in the territory conquered and con-
trolled by the Khmer Rouge after April 1975, whereas ‘old people’ referred to
those who lived in the territory conquered before April 1975.90 Amongst the
groups targeted by the Khmer Rouge, the CIJs identified ‘new people’ as a distinct
group. Most of the members of that group had as common characteristics, their
urban provenance and socio-economic background in a larger sense.91
The fact that the ‘new people’ did not constitute a national, racial, ethnical or
religious group would exclude it from protection under the definition of genocide
in the Genocide Convention. The limitation to those four factors of differentiation
results from the compromise reached during the negotiations of the Genocide
Convention and the idea that only ‘stable and permanent groups’ should be pro-
tected.92 The civil parties’ group argued that in the theory of the Khmer Rouge
authorities, ‘new people’ and ‘old people’ constituted ‘stable and permanent enti-
ties’. In particular, it submitted that both groups were characterized by features of
which their members could not evade and which remained present throughout the
DK regime.93
This view does not accurately correspond to the one given by the representative
of the former USSR, who specifically intervened during the preparatory works of
the Convention to assure the exclusion of political groups. According to that view,
political and economic groups lack stability because the membership of such a
group is ‘by choice and not by birth.’94 The consequence of the exclusion of any
political or economic group from the definition of genocide is the classification of
the crimes committed against such groups as persecution as a crime against
humanity.95
89Group no. 9 gathers civil parties who are members of the Comité des Victimes des Khmers
Rouges (CVKR), a French organization of Khmer Rouge victims.

90Sher 2004, at 60.
91Forster 2012, at 147.
92Schabas 2000, at 132.
93Letter of Judge Hoc Pheng Chhay, ‘Les crimes de génocide contre le peuple nouveau’,
1 September 2013 (on file with the author).

94Continuation of the Consideration of the Draft Convention on Genocide: Report of the
Economic and Social Council, UN Doc. A/C.6/SR74, 18 October 1948, at 103–106.

95Ascensio 2010, at 54.
In Akayesu, however, the International Criminal Tribunal for Rwanda (ICTR)

held that any group reflecting stability may qualify as a protected group under the
Genocide Convention, even if it does not fall into one of the named category of
groups.96 The ICTR defined the stable group as those ‘constituted in a permanent
fashion and membership of which is determined by birth’.97 Thus, the Court reit-
erated USSR’s argument and explicitly excluded political and economic groups as
possible ‘stable groups’. Yet, such a definition is contentious. If the members of
the targeted national, racial, ethnical or religious groups cannot escape their fate, it
is above all because their aggressor determines their identity on the basis of only
that criterion. Groups of victims considered as political or class enemies cannot
more easily escape from stigmatization than the others.98 Therefore, the ICTR’s
argument would only be legitimate, if it is the perpetrator’s perception which
determines the ‘stable’ character of the criteria.99 This reflects the position of the
civil parties’ group which has also advocated for a ‘progressive interpretation’ of
the Genocide Convention.100
Although the Akayesu decision referred to criminal conduct committed in 1994,
the CIJs considered that ‘the principle of nullum crimen sine lege does not prevent
[them] from interpreting the law governing their own jurisdiction, and in so doing,
taking into account the case law of other international tribunals.’101 The Trial
Chamber in Case 001 confirmed that ‘the legality principle does not prevent the
Chamber … from relying on appropriate decisions … of international tribunals …
[which] provide interpretative guidance as regards the evolving status of certain
offences and forms of responsibility under international law.’102 However, on
appeal, the position of the Supreme Court Chamber was more qualified. Although
the Chamber recognized the significance of the reasoning of the ad hoc Tribunals,
it also pointed out that these courts began their work some 20 years or more after
the ECCC’s temporal jurisdiction. Consequently, it considered that, ‘in light of the
protective function of the principle of legality, the [ECCC is] under an obligation
to determine that the [ICTY and ICTR’s] holdings on elements of crimes or modes
of liability were applicable during [its] temporal jurisdiction’.103
96Akayesu, supra note 46, § 516.

97Akayesu, supra note 46, § 511 (emphasis added).
98Ascensio 2010, at 53.
99Boyle 2004, § 240.
100Chhay, supra note 93, at 3–4.
101Closing Order, supra note 35, § 1308. In the Closing Order, the CIJs referred to the jurispru-
dence of both ICTY and ICTR. In particular, concerning genocide, see at notes 5247 and 5248.
102Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July
2010, § 34 (hereafter Duch Trial Judgment). In Case 002/01, the Trial Chamber relied on several
decisions of the International Criminal Tribunals, Case 002/01 Trial Judgment, supra note 21.
103Appeal Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-F28), Supreme Court
Chamber, 3 February 2012, § 97 (hereafter Duch Appeal Judgment).

The Akayesu interpretation is opposed to the most common view that the list of
the four enumerated groups is exhaustive.104 Furthermore, the approach has not
been construed favorably in later the cases of the ad hoc Tribunals. Thus, applying
the Akayesu holdings at the ECCC may be considered as violation of the nullum
crimen lege principle.
The PTC appears to have followed the narrow interpretation of the CIJs, stating
that the definition of genocide has remained ‘constant’ since its codification in the
Genocide Convention.105 Remarkably, Article 183 of the 2009 Cambodian
Criminal Code reproduces the requirements of Article II of the conventional defi-
nition.106 Nevertheless, the application of the Genocide Convention’s definition to
the Khmer Rouge crimes raises considerable difficulties.107
10.3 Applying the Genocide Convention’s Definition

to the Khmer Rouge Crimes
The first courts to convict individuals under the Genocide Convention’s definition
were the ICTR in 1998108 and the ICTY in 2001.109 Both statutes of these tribu-
nals contain a definition of genocide taken verbatim from the Genocide
Convention.
Although the ECCC is not bound by the decisions of the ad hoc Tribunals, they
are considered persuasive. The CIJs and the Trial Chamber have affirmed that the
104See e.g., Schabas 2000, at 132; Nersessian 2010, at 52–54; Quigley 2006, at 147–149.
105Decision on Ieng Sary’s Appeal, supra note 38, § 248. The PTC held that ‘the definition of
this crime of genocide has been universal, predictable and constant’ and added somewhat expedi-
tiously that it was ‘defined identically in the Genocide Convention and the ECCC Law.’
106Criminal Code of the Kingdom of Cambodia, 2009, Article 183 (Khmer-English Translation
Bunleng Cheung): “Genocide” shall mean any of the following acts committed with the intent to
destroy in whole or in part, a national, ethnical, racial, or religious group, as such: […]’ (empha-
sis added).
107In Case 002/02, the civil parties’ group no. 9 has not been ‘allowed’ submitting the char-
acterization as genocide of the crimes committed against the ‘new people’ to debates. Indeed,
the ECCC procedural rules have limited the civil party’s participation and representation at the
ECCC, since Case 002. Because of their large number, during the trial phase, the civil parties are
gathered in one ‘consolidated group’ whose various interests are represented at hearing by two
‘Lead Co-Lawyers.’ They have the ‘ultimate responsibility to the court for the overall advocacy,
strategy, presentation of the interests of the consolidated group […] during the trial stage and
beyond’, see ECCC Internal Rules, Rules 12ter and 23. The Lead Co-Lawyers responded the
civil parties’ group no. 9 that the characterization of genocide of the ‘new people’ may be dis-
cussed during Case 002/02, Judge Chhay, Communiqué, Conférence de presse organisée par le
CVKR, 1 November 2013 (on file with the author).
108Akayesu, supra note 46.
109Krstić, supra note 44.
nullum crimen sine lege principle did not prevent them to use these decisions.110
In this section, the Khmer Rouge abuses will therefore be analyzed in light of the
ICTY and ICTR’s jurisprudence. The Supreme Court Chamber, however, has
advocated for a ‘careful [and] reasoned review’111 of these holdings to determine
whether such determinations of the genocide definition could be applied at the
time of the commission of the crimes. Consequently, references to the preparatory
works of the Genocide Convention as well as scholar works will help to determine
whether the ICTY and ICTR have only affirmed or clarified elements of the defini-
tion, that existed under the DK regime or their decisions indicate a later
evolution.112
The Genocide Convention’s definition has the following two requirements
which, with respect to the crimes of the Khmer Rouge, may raise several complex
questions: (1) the special intent to destroy a group as such which (2) shall be con-
stituted along ethnic, racial, national or religious lines (the protected groups).
In their Introductory Submission,113 the Co-Prosecutors asserted that the DK
regime ‘resulted in widespread starvation, systematic brutality, inhumane living
conditions and deaths of between 1.7 and 2.2 million people.’114 The extensive
deaths in the Cambodian population may be seen, at first sight, as ‘caused by ran-
dom violence or harsh conditions imposed on society at large’.115 However, indi-
cations of the targeting of particular groups by the CPK exist.116 These groups
shall be part of those protected by the Genocide Convention. The difficulties
raised by the identification of such targeted groups by the Khmer Rouge will then
first be broached (Sect. 10.3.1).
One argument put forward by several scholars is that the Khmer Rouge perpe-
trators targeted their victims as social, political or economic undesirable ele-
ments.117 However, the CPK’s real genocidal intent is subjected to controversies.
Indeed, ‘in some cases of horrendous massacre it is not easy to determine which of
overlapping political, economic, national, racial, ethnical or religious actors was
110See Closing Order, supra notes 35 and 103 and Duch Trial Judgment, supra note 103.
111See Duch Appeal Judgment, supra note 103.
112The ad hoc Tribunals also often refer to the preparatory works of the Genocide Convention.
113An introductory submission is a formal submission from the Co-Prosecutors requesting the
Co-Investigating Judges to initiate judicial investigation. It defines the scope of investigation with
against one or more named suspects, and a description of the alleged crimes to be investigated.
114Sixth Investigative Request of Co-Lawyers for Civil Parties Concerning the Charge of
Genocide Against the Khmer Nationals, Nuon Chea and others (002/19-09-2007/ECCC-D349),
Co-Lawyers for Civil Parties, 4 February 2010 (hereafter Request on Genocide Against the
Khmer Nationals), § 10, quoting the Co-Prosecutors’ first Introductory Submission, § 2.
115Ratner et al. 2009, at 286–287.
116Forster 2012, at 189.
117See e.g., Schabas 2001, at 290; Simon 2007, at 119: ‘[T]he Khmer Rouge clearly did target a
group type not found on the legal list. A key understanding of the Cambodian killings lies in rec-
ognizing that the Khmer Rouge targeted a specific group, namely, its political enemies.’
the determinant one. … Most genocide has at least some political tinge’.118
Nonetheless, the determination of the genocidal intent remains crucial for the
characterization of the committed crimes as genocide (Sect. 10.3.2).
10.3.1 Identifying the Protected Groups
The Genocide Convention requires a protected group identified as a separate and

distinct entity119 but it does not favor any particular approach to group identifica-
tion. The discussions during the preparatory works do not answer the question.120
Both ad hoc Tribunals apply a case-by-case analysis, using a combination of both
objective and subjective criteria.121 It has been noted that if at the level of princi-
ples, there may be a move towards increased acceptance of subjectively identified
groups, at a practical level, however, the actual evidence through which the ad hoc
Tribunals have established the existence of victim groups in given cases ‘has
changed very little and has always included both the objective and the
subjective’.122
The subjective criterion stresses the importance of the perpetrators’ perception
of the groups.123 Such an interpretation allows the victims to be protected by vir-
tue of their ‘perceived’ membership124 but also incorporates the victim group in
the mens rea of the crime. Thus, ascertaining the formal existence of protected
groups amongst the victims is not sufficient. It also needs to be proven that the
perpetrator categorized them ‘as such’.
The CIJs stated that the targeting of specific groups was a key means through
which the CPK did ‘whatever can be done that is a gain for the revolution’.125
Members of the ‘new people’ were not the only targeted group. In particular, the
Closing Order provides that one of the policies of the Khmer Rouge authorities
was the killing of ‘enemies’ (who truly or supposedly were the regime’s oppo-
nents).126 The category of the so-called ‘enemies’ was very broad. It included the
118B. Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment
of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, § 36.
119Forster 2012, at 10.
120Young 2010, at 6–8.
121See e.g., Judgment and Sentence, Semanza (ICTR-97-20-T), Trial Chamber III, 15 May 2003,
§ 317; Musema, supra note 60, §§ 161–163; Judgment, Blagojević and Jokić (IT-02-60-T), Trial
Chamber I, 17 January 2005, § 667.
122Young 2010, at 10 (emphasis added).
123Krstić, supra note 44, § 557; Bagilishema, supra note 48, § 65.
124Bagilishema, supra note 48, § 65.
125Closing Order, supra note 35, §§ 205, 207.
126Ibid., § 178. But as some witnesses questioned by the CIJs explained, in fact, if a person did
not simply adapt himself or herself to the regime’s rules, then he or she was automatically con-
sidered an enemy, see § 103.
‘new people’ but an important number of ‘old people’ were also eliminated, as
were CPK members themselves.127 Consequently, characterizing the whole Khmer
Rouge crimes as genocide would require the identification of the entire
Cambodian population as a protected group.
10.3.1.1 The Cambodian Population: A Protected Group?
Before the United Nations Commission on Human Rights in 1979, the President
of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities concluded that the destruction of the Cambodian population by the DK
government was ‘nothing less than auto-genocide’.128 The Genocide Convention
does not exclude cases where victims are part of the perpetrators’ own group.129 It
provides that the intent to destroy only part of a group also constitutes genocide.
On 4 February 2010, several civil parties’ lawyers filed an investigative request
concerning the charge of genocide against the Khmer nationals.130 They held that
‘[c]ategorization of the Khmer people as a national group is not contentious’ and
noticed that several experts have recognized that the Khmer people constitute a
national group within the meaning of the Genocide Convention.131 Indeed, the
group of experts appointed by the UN Secretary-General in 1998 to assess the fea-
sibility of prosecutions in Cambodia, held in its final report that ‘the Khmer people
of Cambodia do constitute [such] a national group’.132 Several academics agree
with this point of view.133 However, neither the UN experts nor the academics
clarified whether the ‘Khmer national group’ was that of the Cambodian nationals
as defined by their nationality or the ethnic Khmer majority as defined to a current
definition of ethnicity.134
According to the ICTR, a national group is ‘a collection of people who are per-
ceived to share a legal bond based on common citizenship’.135 That definition was
drawn from the International Court of Justice’s decision Nottebohm, in which the
term ‘nationality’ is defined.136 However, the fact that ‘nationality’ and ‘national
127See e.g. ibid., §§ 192–204 which relate to purges ordered by the CPK in the Old and New
North Zones and in the East Zone. That last one was particularly bloody, see e.g. Forster 2012, at
122–123.
128Question of the violation of human rights and fundamental freedoms in any part of the world,
UN Doc. E/CN.4./SR.1510, 1979, at 7.

129Quigley 2006, at 127.
130Request on Genocide Against the Khmer Nationals, supra note 114.
131Ibid., § 15.
132Report of the UN Group of Experts, supra note 68, Annex, § 65 (emphasis added).
133See e.g. Hannum 1989, at 111–112; Ratner et al. 2009, at 321.
134Forster 2012, at 143.
136Nottebohm Case, judgment of 6 April 1955, ICJ Reports (1955) 4.
group’ represent the same idea fails to win unanimous support.137 Some authors
stress the denaturing character of the ICTR’s definition, in particular when applied
to the Cambodian situation: ‘[a]dopting [that] legal interpretation … would, as a
practical matter, enlarge the deliberately limited scope of the Convention’s list of
protected groups, insofar as almost any political, social and economic element of a
population can be viewed as a part of a larger national group.’138
In Krstić, the ICTY suggested another reading of the Genocide Convention’s
four protected groups. Citing the Convention’s drafting history, it held that the list-
ing of categories ‘was designed more to describe a single phenomenon roughly
corresponding to what was recognized, before the second world war, as “national
minorities”.’139 Similarly, some scholars contend that the ‘national group’ should
have meant ‘national minorities’. This concept refers to ethnic, linguistic, and reli-
gious minorities in existing states who are united by such an identity and who
share these characteristics with the majority population of another state.140 Such
an interpretation would put into question any possibility to categorize the
Cambodian population as a protected group.141 However other authors consider
that the preparatory works of the Genocide Convention does not provide for any
clear definition of the ‘national group’ as there were no significant debates regard-
ing its meaning before its inclusion in the Genocide Convention.142
Such a view would support that the Cambodian nationals could be considered
as a national group from an objective point of view. Although even if this view is
accepted, the CPK would have needed to perceive the Cambodians as such a
group. In this context, one of the Co-Investigating Judges has been reported as
noting that ‘to establish that a genocide occurred, a group needs to have been iden-
tified … and that group cannot be the quasi-entirety of the population—otherwise
the notion no longer makes sense.’143 This seemingly explains why the Closing
Order of Case 002 does not retain any charge of genocide for the crimes commit-
ted against the Cambodian national group.
As noted above, the ‘Khmer national group’ may also refer to the ethnic Khmer
majority of the Cambodian population. Indeed, there is no requirement in the
Genocide Convention that a protected group constitutes a minority.144
137Lisson 2008, at 1470.

138Ratner et al. 2009, at 198; see also Schabas 2001, note 1 at 291: ‘the fundamental difficulty
with using the term genocide to describe the Cambodian atrocities lies with the group that is
victim of genocide. Destruction of Khmers by Khmers simply stretches the definition too much.’
139Krstić, supra note 45, § 556.
140Schabas 2000, at 116.
141Boyle 2004, at 235.
142Lisson 2008, at 1470.
143Giry 2014.
144Ciorciari and Chang 2005, at 263.
10.3.1.2 Categorizing the Khmer Majority and Minority Group(s)
From an objective perspective, the existence of the Khmer ethnic group in

Cambodia is not contentious. However, it is a requirement that the Khmer Rouge
perpetrators also considered such an ethnic Khmer group as a distinct group.
According to the Closing Order, documents indicate that ‘all the national minori-
ties were … considered to be part of [a] “separate special class type”.’145 It also
states that until August 1977, ‘senior Party authorities … talk[ed] about a
Cambodian population incorporating non-Khmer nationalities’. A negative distinc-
tion of the Khmer ethnic group appears to have been made by the CPK, as all the
other ethnic groups living in Cambodia were rejected. It has been concluded that
such a distinction confirms the fact that the Khmer Rouge regime identified the
Khmer ethnic group as a distinct entity.146 In any case, this establishes that the
Khmer Rouge distinctly identified minority groups.
In Jelisić, the ICTY found that a group may be stigmatized ‘by way of positive
or negative criteria’. A negative approach would consist of ‘identifying individuals
as not being part of the group to which the perpetrators of the crime consider that
they themselves belong and which to them displays specific national, ethnical,
racial or religious characteristics.’147 Thereby, ‘all individuals thus rejected’
would, by exclusion, make up a distinct group. Such a negative approach is inter-
esting when applied to the Khmer Rouge’s conception of the minority groups.
With such a definition of a protected group, any distinction between the different
treatments to which a particular minority was subjected to would be superfluous. It
would remain to be assessed whether the Khmers targeted by the Khmer Rouge
could also be integrated into the negatively defined protected group.
The negative construction, however, was later rejected by the ICTY in Stakić.
Citing the drafting history of the Genocide Convention, it held that ‘the term “as
such” has great significance … [W]hen a person targets individuals because they
lack a particular national, ethnical, racial, or religious characteristic, the intent is
not to destroy particular groups with particular identities as such … Genocide
entails the destruction of unique, positively defined groups with particular identi-
ties.’148 Consequently, in order to establish whether there was genocide, the situa-
tion of each distinct group needs to be analyzed in particular. Conceptually, this
implies that not only one genocide would have been committed, but possibly sev-
eral crimes of genocide. The targeting of those groups as such, by the Khmer
Rouge, still needs to be determined.
145ClosingOrder, supra note 35, § 207.

146Boyle2004, § 284.
147Judgment, Jelisić (IT-95-10-T), Trial Chamber, 14 December 1999, § 71.
148Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, §§ 20–24 (emphasis
added).
In Jelisić, the ICTY has held that it is the ‘stigmatization of a group as a dis-
tinct national, ethnical or racial unit by the community which allows it to be deter-
mined whether a targeted population constitutes a national, ethnical or racial group
in the eyes of the alleged perpetrators’.149 Such an interpretation incorporates the
victim group in the mens rea of the crime. The subjective approach implies two
things. On the one hand, the perpetrators’ conception of the victim group shall
bear some relation to one of the protected groups. On the other hand, the perpetra-
tor shall choose the victims by reason of their membership in the group whose
destruction was sought.150 In other words, it raises the question of whether the
members of the Khmer group and minority groups were stigmatized as ‘a distinct
national, ethnical or racial unit’ or ‘only’ as political opponents. The answer to that
question is closely linked with the issue of the genocidal intent.
10.3.2 Establishing Genocidal Intent
Article II of the Genocide Convention requires that a perpetrator, in addition to

seeking to commit one or more of the underlying acts,151 sought to destroy the
protected group, in whole or in part. This last element of the definition of genocide
is known as the ‘special intent’. It is considered that the special intent ‘gives geno-
cide its specialty and distinguishes it from ordinary crimes’152 and from the ‘gen-
eral’ crimes against humanity.153 It affords genocide its status as ‘the crime of the
crimes’.154
The notion of intent includes several dimensions.155 As raised by Ieng Sary’s
defense team, there has been an ongoing debate amongst academics as to whether
the ‘intent to destroy’ has to be interpreted according to a ‘purpose-based’ standard
or a ‘knowledge-based’ standard.156 Both the ICTY and ICTR have always
decided to follow the ‘purpose-based’ approach, rejecting the ‘knowledge-based’
one. It was held that ‘[s]pecial intent of a crime is a specific intention, required as
a constitutive element of the crime, which demands that the perpetrator clearly
seeks to produce the act charged.’157 Consequently, it is ‘not sufficient that the
149Jelisić, supra note 147, § 70 (emphasis added). The International Criminal Tribunals have
thereafter maintained that subjective approach, see supra notes 121 and 122.
150Krstić, supra note 45, § 561.
151Genocide Convention, supra note 42.
152Jelisić, supra note 147, § 66.
153Ambos 2009, at 846.
155Ambos 2009, at 834–835.
perpetrator simply knew that the underlying crime would inevitably or likely result
in the destruction of the group.’158
Although a large part of the doctrine follows the jurisprudence of the ad hoc
Tribunals, some scholars have challenged this view.159 An author, in particular, has
demonstrated that nothing in the Genocide Convention requires such a reading as
the drafting history reveals a ‘vigorous and confused debate over the intent stand-
ard that remained … unresolved at the time of the Convention’s adoption’.160
A softening of the position by the ad hoc Tribunals has to be noted.161 In cases of
accessorial forms of liability, complicity in genocide,162 aiding and abetting,163
superior responsibility164 and joint criminal enterprise in its third form (JCE
III),165 only the knowledge of the principal’s genocidal intent is required. Except
for JCE III which is still subjected to debate,166 all other mentioned forms of
responsibility are applied at the ECCC.167 Thus, commentators have noted that the
senior Khmer Rouge leaders in Case 002 could more easily be convicted for
158Blagojević and Jokić, supra note 121, § 656.

159For a short review of these divergent views, see Ambos 2009, at 839–841.
160Greenawalt 1999, at 2266, 2270–2279.
162Akayesu, supra note 46, §§ 540–545; see also Ambos 2009, at 851: ‘In Akayesu, an accom-
plice to genocide in the sense of Article 2(3)(e) of the ICTRSt need not necessarily possess the
special intent himself, but must only know or have reason to know that the principal acted with
the special intent, because accomplice liability is accessorial to principal liability’ (emphasis
added, footnotes omitted).
163Musema, supra note 60, § 182.
164Judgment, Brđanin (IT-99-36-T), Trial Chamber II, 1 September 2004, § 221: ‘the mens rea
required for the superiors to be held responsible for genocide […] is that the superior knew or
had reason to know that their subordinates (1) were about to commit or had committed genocide
and (2) that the subordinates possessed the requisite specific intent’ (emphasis added).
165Ibid., § 709; see also Ambos 2009, at 853: ‘A member of a JCE III may be convicted for
genocide if it was reasonably foreseeable for him that one of the objective acts of the genocide
offence would be committed and that it would be committed with the genocidal intent’ (emphasis
added, footnote omitted). On the question of JCE III generally, see Chap. 9 in this Volume.
166In 2010, the PTC ruled that JCE III was not part of customary international law in 1975 and
is therefore not applicable at the ECCC, see Decision on Appeals Against the Co-Investigating
Judges Order on JCE, Nuon Chea and others (002/19-09-2007/ECCC-D97/15/9), Pre-Trial
Chamber, 20 May 2010. The Co-Prosecutors’ appealed the Case 002/01 Trial Judgment on the
Trial Chamber’s holding on ‘the availability of JCE III as a mode of liability during the period
of temporal jurisdiction of the ECCC’, see Co-Prosecutors’ Notice of Appeal of a Decision in
Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E313/3/1), Co-Prosecutors, 29
September 2014, § 3.
167Both the PTC and Trial Chamber have agreed that JCE is a form of commission under Article
29 ECCC Law and that general JCE liability was part of customary international law during
the ECCC’s temporal jurisdiction, see ibid. In Case 001, the Trial Chamber found the accused
guilty via the JCE II, see Duch Trial Judgment, supra note 102, § 510–516. In Case 002, the Trial
Chamber found the accused guilty via the JCE I, see Case 002/01 Trial Judgment, supra note 21.
complicity168 in genocide, aiding and abetting or superior responsibility than for

attempt or conspiracy, since their knowledge of the genocidal abuses would be eas-
ier to prove.169
It has been shown earlier that the Khmer Rouge distinguished several groups
in the Cambodian population. Some of them constitute groups protected by the
Genocide Convention. The Khmer Rouge’s authorities, at least, drew a clear
separation between the minority groups and the Khmer majority. The require-
ment of the genocidal intent, however, implies that those groups have been tar-
geted as national, racial, ethnical or religious group as such. Consequently, the
characterization as genocide of crimes committed against the Khmer major-
ity (Sect. 10.3.2.1) and crimes committed against the different minorities
(Sect. 10.3.2.2) may be obstructed by the same difficulty: the proof of the geno-
cidal intent of the Khmer Rouge perpetrator.
In Akayesu, the ICTR noted ‘that intent is a mental factor which is difficult,
even impossible, to determine’ directly. It further held that ‘the genocidal intent
inherent in a particular act’ may ‘be inferred (…) from the general context’ in
which the act occurred.170 Therefore, the international criminal tribunals heavily
rely on inferences from the surrounding factual circumstances to determine
whether a defendant acted with the requisite genocidal intent.171 A list of factors
establishing genocidal intent has been found to include172 statements, political and
administrative documents, propaganda indicating genocidal intent, the scale and
the nature of the atrocities committed, a pattern of conduct and the systematic tar-
geting of the protected group, and evidence suggesting that commission of the
genocidal actus reus was consciously planned.173 However, no particular combi-
nation of those factors can be identified as necessary or sufficient to prove geno-
cidal intent.174 Consequently, such an appreciation of the facts exclusively falls
within the judges’ power.175
168Ardema 2006, at 61.

169In Case 002, the accused were indicted for genocide with both direct and accessorial modes of
responsibility, see Closing Order, supra note 35, at 309–386.
171Musema, supra note 60, § 167; Judgment and Sentence, Rutaganda (ICTR-96-3-T), Trial
Chamber, 6 December 1999, § 63: The genocidal intent is therefore ‘inferred on a case-by-case
basis from evidence at trial’.
172See e.g. Jelisić, supra note 147, § 47: ‘specific intent […]. may, in the absence of direct
explicit evidence, be inferred from a number of facts and circumstances, such as the general con-
text, the perpetration of other culpable acts systematically directed against the same group, the
scale of atrocities committed the systematic targeting of victims on account of their membership
of a particular group, or the repetition of destructive and discriminatory acts.
173For a more comprehensive review of those factors and the corresponding jurisprudence, see in
particular, Forster 2012, at 91–107 and Park 2011, at 153–175.

174Park 2011, at 152.
175See e.g. Request on Genocide Against the Khmer Nationals, supra note 114, § 3: ‘subsuming
facts under the elements of crimes is the daily business of the judges’.
10.3.2.1 Targeting Part of the Khmer Majority Group
Most of the Khmer Rouge (including CPK leaders) belonged to the Khmer
group.176 Article II of the Genocide Convention explicitly provides that a group
does not need to be entirely destroyed for genocide to occur. As explained by the
Norwegian Representative during the preparatory works, the words ‘in whole or in
part’ were proposed to show that ‘it was not necessary to kill all the members of a
group in order to commit genocide.’177 Although such a statement was related to
the actus reus of genocide, not to the mens rea,178 it is not disputed that the
destruction of a part of a group is linked to the intended result and not its factual
consequence.179 According to the ICTY, ‘[i]t is clear from the terms of the
Genocide Convention that any act committed with intent to destroy part of a group
… constitutes an act of genocide’.180
However, different interpretations of the term ‘in part’ are possible. The juris-
prudence of the ICTY and ICTR suggests that this implies a quantitative mini-
mum.181 The quantitative aspect may be understood in an absolute or proportional
way. In Sikirica, for example, the ICTY held that the ‘substantiality’ of the
destruction would be determined by taking the number of immediate victims as a
percentage of the total population of the group.182 According to the Closing Order,
the average rate of Khmer deaths is estimated at 18.7 %.183 This percentage is
smaller than those of the minority groups. However, the vast majority of the vic-
tims were ethnic Khmers.184 For the CIJs, however, ‘there is no numeric threshold
of victims necessary to establish genocide’.185
The ICTY has also referred to qualitative criteria. The targeted part of the
group needs ‘to be significant enough to have an impact on the group as whole’.186
In Jelisić, the ICTY considered that ‘a targeted part of a group would be classed as
substantial … because the intent sought to harm … the most representative
176Hannum 1989, at 111.

177Quigley 2006, at 140.
178Ibid.
179Forster 2012, at 77.
180Brđanin, supra note 164, § 700.
181See e.g., Jelisić, supra note 147, § 82.
182Sikirica, supra note 48, §§ 69–72.
183Closing Order, supra note 35, § 1342.
184Ciorciari and Chhang 2005, at 263: ‘Historians agree that most of the victims of the CPK
atrocities were ethnic Khmer nationals, who comprised approximately 80 % of the population’;
Jarvis and Fawthrop 2004, at 224.
186Krstić, supra note 44, § 8. Interestingly, this jurisprudence was taken over by the International
Court of Justice in Case Concerning the Application of the Convention on the Prevention and
Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26
February 2007, § 198.
members of the targeted community.’ As ‘representative members’, it mentioned

‘political and administrative leaders, religious leaders, academics and intellectuals,
business leaders and others’. In that case, genocide would ‘consist of the desired
destruction of a … limited number of persons selected for the impact that their dis-
appearance would have upon the survival of the group as such’.187 The qualitative
analysis then starts from the perpetrators’ conception of the segments particularly
important to its survival.188 In Sikirica, the ICTY specified that the intent to
destroy a group in part means seeking to destroy a distinct part of the group as
opposed to an accumulation of isolated individual within.189 Thus, while the per-
petrators need not seek to destroy the entire group, they must view the part of the
group they wish to destroy as a distinct entity.190 According to that interpretation,
the ‘as such’ requirement applies to the part of the group that the perpetrators
intend to destroy.
Any part of the Khmer group which obstructed the purpose of the CPK to
‘implement a rapid socialist revolution … through a “great leap forward”’191 was
systematically eliminated, depending on whether those who constituted such parts
were considered as non-assimilable.192 In the Closing Order, the CIJs mentioned
documents which show that the CPK identified ‘a “special class” … in
Cambodian society, comprised of “soldiers, police and Buddhist monks”. … Other
classes such as the feudalists, capitalists and bourgeois were described as oppo-
nents of the revolution.’193 By eliminating those parts of the Khmer group, the
Khmer Rouge’s authorities have sought the demise of those they considered to be
the bases of the former Khmer society (and would therefore have harmed the
whole Khmer group as it existed in 1975). However, the characterization of geno-
cide requires that the parts of the Khmer group the Khmer Rouge intended to
destroy have further been targeted as Khmer and not (only) as members of the
above-mentioned ‘special classes’.
Both the ICTY and ICTR have made a distinction between intent and
motive.194 If intent is commonly seen as an essential factor in establishing geno-
cide, motive on the contrary, is often considered irrelevant in this context. The per-
sonal motive of the perpetrator of genocide may be, for example, to obtain
personal economic benefits, or political advantage or some form of power.
However, the existence of a personal motive does not preclude the perpetrator
187Jelisić,
188Nersessian 2010, at 45.
189Sikirica, supra note 48, § 89.
190Boyle 2004, § 247.
191Closing Order, supra note 35, §156.
192Ternon 1995, at 74–76.
193Closing Order, supra note 35, § 207 (footnotes omitted).
194See e.g., Judgment, Jelisić (IT-95-10-A), Appeals Chamber, 5 July 2001, § 49; Kayishema and
Ruzindana, supra note 60, § 161; Judgment, Blaskić (IT-95-14-A), Appeals Chamber, 29 July
2004, § 694.
from also having the specific intent to commit genocide.195 The ICTY specified
that ‘the victims of the crime must be targeted because of their membership in the
protected group, although not necessarily solely because of such membership’.196
That led commentators to deduce that if one intends to destroy a protected group,
it is not necessary that the perpetrator performs the criminal act out of a motiva-
tion related to the distinguishing features of the group. Thus, for instance, the
political and economic background of those who have particularly been targeted,
such as the ‘new people’, may be seen as ‘mere’ features of that group197 which
actually constituted a motive for attack.198 The specific intent of the Khmer Rouge
authorities would therefore not be the destruction of the ‘new people’ as a bona
fide social, political or economic group, but rather the purification of the Khmer
group by eliminating all its undesirable parts as such.199 That part of the Khmer
group would not have been eliminated as political opponents, but rather as mem-
bers of the Khmer group200 of which they were deemed unworthy by the CPK.
Some facts suggest that the Khmer Rouge perpetrators may have had the spe-
cific intent. A civil parties’ lawyers’ request noted ‘the fact that the CPK arrested
and executed the wives and children of suspected bad elements, and considered as
enemies “pursuant to a CPK policy of ‘… [w]hen pulling out weeds, remove them
roots and all’”.’201 Some authors noticed such a behavior towards the families of
the military and civil elites of the Khmer Republic (the previous regime).202 Those
were indeed immediately identified as ‘enemies’ and almost systematically killed,
whereas if the ‘new people’ were subjected to harsh treatment, this was partly
‘with a view of reeducating them’203 first. The ICTR has included in the factors
bearing on genocidal intent, the abuses committed against members of the targeted
group who cannot be considered as ‘enemies’. In particular, it has considered that
women and children usually do not pose a true threat to the perpetrators.204
195Krstić, supra note 45, § 572: ‘It is conceivable that, although the intention at the outset of an
operation was the destruction of a group, it may become the goal at some later point during the
implementation of the operation.’
196Blagojević and Jokić, supra note 121, § 669.
197Quigley 2006, at 128–129; Hannum 1989, at 108–109.
198Request on Genocide Against the Khmer Nationals, supra note 114, § 26.
199Ibid., § 26.
200Ibid., § 30.
201Ibid., § 24 (emphasis added, footnotes omitted).
202Hannum 1989, at 89; Ponchaud 2001, at 70.
203Closing Order, supra note 35, §§ 227, 1417 (emphasis added). However, as the CIJs further
noted, the ‘categories of so-called “enemies” continued to expand over time’.

204The ICTR in Akayesu, for example, emphasized that Tutsi women and children were targeted
as well as men, and that these women and children were not generally combatants in the civil war
between Hutu and Tutsi factions, see Akayesu, supra note 46, §§ 125, 128.
Characterizing the crimes committed against the Khmer majority as genocide

would suggest that racism was the essence of the DK regime.205 Such an explana-
tion remains controversial. Several scholars do not share this point of view and
support the idea that the determining criteria were of political nature.206 In order
to clarify such aspects of the genocidal intent of the Khmer Rouge, the 2010 civil
parties’ lawyers’ investigative request demanded the CIJs to appoint an expert who
may have advised them on that matter.207 Unfortunately the response to the
request has not yet been made available to the public.208 Nevertheless, since the
determination of the perpetrators’ intent is part of the work of legal characteriza-
tion, which is strictly speaking the judges’ responsibility, such a request might
have little chance to succeed. The CIJs did not establish the genocidal intent of the
Khmer Rouge perpetrators regarding the Khmer group. They referred to the Trial
Chamber the crimes committed on the Khmer majority as persecution on political
and religious grounds as a crime against humanity.209
In 2007, the Co-Prosecutors seized the CIJs of abuses committed against the
Buddhists, characterizing such acts as genocide210 (the vast majority of Khmers
are Buddhists).211 The Closing Order notes that ‘[p]agodas were destroyed, virtu-
ally all Buddhist monks and nuns were disrobed, and some monks were threatened
with death or killed if they did not comply’.212 However, both ad hoc Tribunals
have held that the intent to destroy means specifically the physical destruction of
the group. Thus, such abuses regarding the Buddhist monkhood may rather reveal
that the CPK sought to annihilate the practice of Buddhism,213 but not that they
intended to destroy the Buddhist group, or part of it, as such.214
205See e.g. Kiernan 1996, at 26. According to B. Kiernan, ‘Khmer Rouge conceptions of race
overshadowed those of class’.

206See e.g. Simon 2007, at 119: ‘The Khmer Rouge did not set out to eliminate impure races or
despised ethnicities from their land. Rather, they became obsessed with the elimination of any
political impurity, of any individual who belonged to the enemy’; Heder 2007, at 101–153. For
Heder, the founding principle of the Khmer Rouge’s regime remains the Marxist-Leninist ideol-
ogy inspired by the Chinese model: a specific project of rapid modernization which aimed at the
glorious advent of the communist system in Cambodia. It is in the context of that radical political
project that those who were perceived to be opponents were stigmatized in terms of ‘race’.
207Request on Genocide Against the Khmer Nationals, supra note 114, § 42.
208ECCC Internal Rules, Rule 56(1). The judicial investigation phase of the proceedings is
confidential.
209Closing Order, supra note 35, §§ 1416–1418, 1421.
210Request on Genocide Against the Khmer Nationals, supra note 114, at note 7 referring to
§ 122(b) of the Co-Prosecutors’ first Introductory Submission.

211ECCC Internal Rules, Rule 67(1): ‘The Co-Investigating Judges are not bound by the
Co-Prosecutors’ ‘submissions’’.
212Closing Order, supra note 35, § 210 (footnotes omitted).
213Ibid., § 740. Actually, as noted at ibid., § 210, ‘all religions were deemed to be reactionary’.
Therefore, ‘[a]ll religion was prohibited by the CPK’.

214Ibid., § 210. Although, the Closing Order points out that ‘[h]igh figures in the Buddhist hier-
archy were executed’, it seems that the CIJs have not been convinced that the Khmer Rouge had
the intent to destroy that part of that group.
In fact, the issue of determining whether the perpetrated acts where commit-
ted with the intent to physically destroy the group is more forcefully raised with
respect to the crimes committed against minority groups.
10.3.2.2 Intending the Physical Destruction of the Minority Groups
As indicated earlier, the situation of each minority group must be assessed inde-
pendently, since the jurisprudence of the ICTY and ICTR rejected the existence
of a ‘consolidated’ protected group which would be constituted with the whole
groups targeted by the perpetrators. However, the question regarding all the minor-
ity groups is fundamentally the same, namely whether the CPK targeted them
as national, racial, ethnical or religious groups or they were killed as political
opponents.
In the 1970s, the Cambodian society was marked by a strong link between the
ethnic origin and the social status.215 For example, most of the ethnic Chinese
were living in cities and towns and controlled large parts of Cambodia’s commer-
cial life.216 It has been estimated that half of the Chinese community perished dur-
ing the DK regime.217 However, due to their social and economic positions, the
members of that group would have been targeted as ‘capitalists’, rather than as
components of the distinct Chinese ethnic group.
The Closing Order states that the Khmer Rouge’s authorities sought to establish
a ‘homogenous society … [by] abolishing all ethnic, national, religious, racial,
class and cultural differences.’218 The minorities were subjected to a program of
forced ‘Khmerization’ aiming at eradicating their distinctive signs (culture, reli-
gion, language, etc.).219 By August 1977, the CPK officially stated ‘the national
minorities’ de facto abolition and assimilation’. At that point, the country was
‘described as “99 %” Khmer’.220 The CIJs recognized that ‘the implementation of
the CPK’s common purpose involved … the deportation, persecution or destruc-
tion of ethnic minorities.’221
However, if the Khmer Rouge’s authorities clearly categorized and targeted the
different ethnic minorities, their real intent remains to be established. Indeed, the
ICTY jurisprudence has made clear that the intent to physically or biologically
destroy the group is required for genocide.222 Thus, acts leading to minorities’
215Boyle 2004, § 247.

216Forster 2012, at 122.
217Kiernan 1996, at 464.
219Hannum 1989, at 86.
221Ibid., § 1369.
222Krstić, supra note 45, § 580: ‘[C]ustomary international law limits the definition of genocide
to those acts seeking the physical or biological destruction of all or part of the group.’
forced assimilation, and which result in their ‘cultural’ (but not physical) destruc-
tion, cannot, as such, be characterized as genocide. ‘Cultural genocide’ was indeed
explicitly excluded from the Genocide Convention during the preparatory
works.223 Cultural considerations, however, still play an important role in prose-
cuting genocide. In particular, it is considered that such acts224 contribute to estab-
lish the genocidal intent, when they are committed ‘as part of the same pattern of
conduct’.225 Therefore unless it can be proven that the Khmer Rouge intended the
physical destruction of the ethnic minorities, they cannot be found to have com-
mitted genocide. The CIJs retained genocide charges only for the crimes commit-
ted against two minorities, the Cham and the Vietnamese groups.
It is noted in the Closing Order that members of the Cham group suffered dis-
proportionately under the Khmer Rouge.226 However, this was found to be the
case only from ‘1977 and generally from mid-1978 [when] the CPK adopted a
policy of destroying the Cham as a group’.227 Therefore the authorities would
have decided to physically destroy the Cham group only after they assessed that
their assimilation was impossible. Significantly, the destruction of the Cham could
also have stemmed from their disproportionate resistance to the regime’s political
and social plans, and not from deliberate killing on the basis of their race, religion
or ethnicity.228 In such circumstances, the Khmer Rouge would not have had the
necessary genocidal intent. Finally, the CIJs decided to retain genocide charges for
the crimes committed against the Cham group.229 They considered that a certain
number of ‘troubling facts’ allowed them to think that the Khmer Rouge ‘may
have intended to destroy the Cham as Cham, rather than as political opponents’.230
The massacre of the Vietnamese raises similar questions, although their case is
somewhat different. It appears that the Khmer Rouge’s authorities first sought their
expulsion from Cambodia.231 As noted in the Closing Order, it is only ‘[f]rom April
223See Nersessian 2005.

224See Closing Order, supra note 35, § 211 (acts committed against the Cham group).
225Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence,
Karadzić and Mladić (IT-95-5-R61 and IT-95-18-R61), Trial Chamber, 11 July 1996, § 94: ‘The
intent may also be inferred from the perpetration of acts which violate, or which the perpetrators
themselves consider to violate, the very foundation of the group—acts which are not in them-
selves in the list in [Article II of the Genocide Convention] but which are committed as part of
the same pattern of conduct’ (emphasis added).
226Closing Order, supra note 35, § 1342: ‘36 % of the Cham people died during the Khmer
Rouge regime which is compared to the average rate of Khmer deaths being an estimated
18.7 %’.
227Ibid., § 212.
228Ponchaud 2013, at 207–208; M. Lemonde, former international Co-Investigating Judge at the
ECCC, ‘Juger, après le régime des Khmers rouges’ (Conférence exceptionnelle du séminaire
public de recherche, Enfermement, Justice et Libertés, Paris, 19 February 2013).
229Closing Order, supra note 35, §§ 1335–1342.
230Giry 2014.
1977 [that] the CPK intended to further this policy by destroying in whole or in part
the Vietnamese group as such.’232 The Khmer Rouge’s racism against the
Vietnamese233 likely justified the exclusion of the Vietnamese from the CPK’s
plans, rather than their assimilation as the other minorities. However, that policy of
destruction may also be explained by the armed conflict which opposed the Khmer
Rouge to Vietnam throughout the DK regime. From 1975, the Khmer Rouge
engaged in ever-escalating military hostilities with Vietnam, rendering the
Vietnamese, ‘the prime national enemy for the Khmer Rouge’.234 The existence of
an international armed conflict between Vietnam and Cambodia from April 1975 to
January 1979 was confirmed by the Trial Chamber’s Judgment in Case 001.235 The
CIJs reached the same conclusion in Case 002.236 However, they noted the intensifi-
cation of the hostilities from 1977.237 This could then explain the deviation of the
CPK policy regarding the Vietnamese, from expulsion into destruction.238 However,
the armed conflict against Vietnam could be considered as a motive,239 the main cri-
terion for distinction remaining the Vietnamese origin. Several elements,240 includ-
ing explicit reported statements from former cadres of the regime,241 led the CIJs to
think that the CPK may have intended ‘to destroy the Vietnamese as Vietnamese
rather than because the regime was at war with Vietnam.’242
‘Troubling facts’ regarding persecutions committed against another minority
group, the Khmer Krom,243 were reported to the CIJs in Co-Prosecutors and civil
parties’ investigative requests.244 However, as noted by the CIJs, they are only
232Ibid., § 214.
233See e.g. Ponchaud 2014, at 42 note 9. The author notes that the Khmers have ‘a visceral
and irrational hatred for their eastern neighbors’ (unofficial translation). For a brief history of
the Khmer-Vietnamese relations, see C. Leonard, ‘Racism against Vietnamese thriving’, Phnom
Penh Post, 26 January 1996, available at http://www.phnompenhpost.com/national/racism-
against-vietnamese-thriving (visited 15 June 2015).
234Park 2011, at 145.
237Ibid., § 154.
238Ibid., §§ 792 and 1349: Almost ‘all [remaining Vietnamese] died from the hands of the Khmer
Rouge during the years from April 1975 to January 1979.’

239Krstić, supra note 45, §§ 564–65. The ICTY rejected the argument that the existence of a
military conflict between forces necessarily negates an inference of genocidal intent from one
group’s targeting of the other.
241Ibid., §§ 814–818.
242Giry 2014.
243The Khmer Krom minority group who has cultural and geographical ties to Vietnam, seem to
have been violently targeted by the Khmer Rouge.

244ECCC Internal Rules, Rules 53 and 55(2); see Civil Parties Request for Supplementary
Investigations Regarding Genocide of the Khmer Krom & the Vietnamese, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-D250/3), Co-Lawyers for Civil Parties, 13 January 2010.
authorized to investigate facts included in the Co-Prosecutors’ Introductory or

Supplementary Submissions.245 The investigative requests related in part to facts
which did not fall within the scope of the Introductory nor the Supplementary
Submissions which the CIJs had been sized of in Case 002. Therefore, they did not
conduct any investigation on these facts.246 Although the CIJs only partially
rejected the requests, the persecutions committed against the Khmer Krom are
barely mentioned in the Closing Order.247
The general aim of a pre-trial investigative phase conducted by investigating
judges248 is to simplify and shorten the phase of the trial.249 Defendants should
only be sent to trial on the basis of the charges for which ‘the evidentiary material
in the case file [is] sufficiently serious and corroborative to provide a certain level
of probative force.’250 Thus, a relatively high level of proof is required for a case
to be sent to trial. With regard to crimes committed against the Khmer majority
and the minorities other than the Cham and the Vietnamese, such as the Khmer
Krom, it may then be that the collected evidentiary material has not been of high
enough corroborative character to be included in a genocide charge.251
245Internal Rules, Rule 55(2). Consequently, the scope of the judicial investigations led by the
CIJs is defined by the selection of facts carried out in advance by the Co-Prosecutors. The con-
cern of securing a manageable scope is an influential factor for the Co-Prosecutors. As noted by a
former ICTR investigator, the extent to which ‘the prosecutor exercises his discretionary powers
judiciously determines to a large degree the success or failure of international criminal tribunals.’
Côté 2006, at 134.
246Combined Order on Co-Prosecutors’ Two Requests for Investigative Action Regarding
Khmer Krom and Mass Executions in Bakan District (Pursat) and the Civil Parties Request for
Supplementary Investigations Regarding Genocide of the Khmer Krom & Vietnamese, Nuon Chea
and others (002/19-09-2007/ECCC-D250/3), Co-Investigating Judges, 13 January 2010, § 9.
247Closing Order, supra note 35, § 1468. The CIJs refer to the forced transfer of the ‘Khmer
Krom minorit[y]’. The lawyer of most Khmer Krom civil parties at the ECCC, Mohan, has noted
that ‘an inspection of the Co-Prosecutors’ voluminous Introductory Submissions reveals that
not a single paragraph is dedicated to the plight of the Khmer Krom at the hands of the Khmer
Rouge. The Co-Investigating Judges are no better.’ See Mohan 2008, at 48.
248Before the ad hoc Tribunals, the investigations are led by the parties, i.e. the defense and the
prosecutor.
249J. De Hamptinne, F. Roux and M. Lemonde, ‘Pour des juges d’instruction internationaux’,
Libération Monde, 16 April 2009, available at http://www.liberation.fr/monde/2009/04/16/pour-

des-juges-d-instruction-internationaux_552997 (visited 15 June 2015).
251As it has already been mentioned, the crimes committed against the ‘new people’ for instance,
have been characterized as crimes against humanity of persecution on political grounds, see
Closing Order, supra note 35, § 1416–1418.
10.4 Conclusion
Although the CIJs’ position may be justified by the legal constraints to which the
ECCC is subjected, the Closing Order was adopted at a confidential stage of
the proceedings. Therefore, if the victims are not necessarily denied their ‘right to
the precise term for what was done to [them]’,252 they have been rejected a rea-
soned decision to which they are entitled.
Factors other than the lack of corroborative evidence may have influenced the
CIJs’ decision. As highlighted throughout this chapter, there is controversy over
the definition of the crime of genocide in the constituting documents of the ECCC
and its application to the Khmer Rouge atrocities.253 Thus, broader genocide
charges might lead to an acquittal of the accused in this respect. In the particular
context of Cambodia, such an outcome to the trial of the last surviving Khmer
Rouge leaders may have been seen as a great risk by the CIJs, particularly because
of the important symbolic value of genocide. Genocide would therefore have been
only charged with respect to crimes that could be proven with the least
difficulties.254
The genocide charges involving the Cham and the Vietnamese will publicly be
debated during the Case 002/02 trial.255 According to the ECCC procedural rules,
the Trial Chamber is not bound by the legal characterizations given to the facts by
the CIJs. The judges may raise the issues relating to broader genocide charges dur-
ing Case 002/02, and even change the legal characterization of the facts as set out
in the Closing Order.256 Thus, facts which were characterized by the CIJs as
crimes against humanity could be ‘re-characterized’ as genocide by the Trial
Chamber. The judges could have already done this during Case 002/01, while the
abuses committed against the ‘new people’ were debated. However, even before
the end of the debates, they refused to contemplate possible genocide characteriza-
tions in order ‘to ensure the expeditiousness of the debates’257 considering, in par-
ticular, the poor health of the two remaining accused.258 Similarly, in order to
avoid that the debates drag on in Case 002/02, the judges may then prefer to focus
252Giry 2014.
253Forster 2012, at 140. The author notes that ‘the [CIJs] and the Co-Prosecutors deliberately
passed on bringing [the issues concerning the targeting of groups within the Khmer majority]
up. […] It can be assumed that charges involving these issues have not been brought in order to
avoid […] controversial questions largely unexplored in the jurisprudence of other international
criminal tribunals.’
254Ibid., at 173 (emphasis added).
255Lemonde, supra note 228.
256ECCC Internal Rules, Rule 98(1). See also Duch Appeal Judgment, supra note 103, § 128.
257Decision on Severance of Case 002 following Supreme Court Chamber Decision of 8
February 2013, Nuon Chea and others (002/19-09-2007/ECCC-E284), Trial Chamber, 26 April
2013, § 159.
258Ibid., § 161.
to the genocide charges of the Closing Order and refrain from raising additional
complex issues. However, despite the necessity to rapidly render a judgment, it
does not seem, given the context surrounding the genocide characterization, that
such debates would be superfluous.
The ECCC procedural rules also allow the genocide issues to be mooted by the
parties.259 It appears to primarily be the role of the Lead Co-Lawyers for the civil
parties to raise such concerns, owing to the interests of a large part of the ‘consoli-
dated group’ of civil parties they represent at trial.260 However, the Trial Chamber
refused to grant them the opportunity to make opening statement261 at the start of
the substantive hearing. Consequently, ‘the way the civil parties intend to partici-
pate in criminal proceedings in Case 002/02’ is still unknown.262
References
Akhavan P (2012) Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime.
Cambridge University Press, Cambridge
Ambos K (2009) What does ‘intent to destroy’ in genocide mean? International Review of the
Red Cross 91:833-858
Ardema A (2006) The Crimes to be judged by the Extraordinary Chambers. In: Ciorciari J (ed)
The Khmer Rouge Tribunal. Documentation Center of Cambodia, Phnom Penh, pp 57-79
Ascensio, H (2010) Les groupes protégés par la Convention sur le Génocide. In: Yotopoulos-
Marangopoulos A, Pazartzis P (eds) Le génocide revisité/Genocide Revisited, Bruylant,
Athènes/Bruxelles, pp 45-61
Bogdan A (2002) Cumulative Charges, Convictions and Sentencing at the Ad hoc International
Tribunals for the Former Yugoslavia and Rwanda. Melbourne Journal of International Law
3:1-32
Boyle D (1999) Quelle justice pour les Khmers Rouges? Revue trimestrielle de droit de l’homme
40:773-826
Boyle D (2004) Les Nations Unies et le Cambodge, 1979-2003: Autodétermination, démocratie,
justice pénale internationale. Panthéon-Assas Paris University II
Ciorciari J, Chang Y (2005) Documenting the Crimes of Democratic Kampuchea. In: Ramji
J, Van Schaack B (eds) Bringing the Khmer Rouge to Justice - Prosecuting Mass Violence
Before the Cambodian Courts, Edwin Mellen Press, Lewiston, New York, pp 222-307
Côté L (2006) International Criminal Justice: Tightening up the Rules of the Game. International
Review of the Red Cross 88:133-144
259ECCC Internal Rules, Rules 90, 91, 94.

260Ibid., Rule 12ter.
261ECCC Internal Rules, Rule 89bis provides that ‘before any Accused is called for questioning,
the Co-Prosecutors may make a brief opening statement of the charges against the Accused. The
Accused or his/her lawyers may respond briefly’. But Rule 89bis does not provide such a possi-
bility to the civil parties. Such an ‘oversight’ may be explained by the fact that the opening state-
ment practice stems from the common law system in which civil parties are not known.
262M. Guiraud (International Lead Co-Lawyers for the Civil Parties at the ECCC), ‘Public still
unclear on the role of civil parties at the ECCC’, Phnom Penh Post (14 October 2014), available
at http://www.phnompenhpost.com/analysis-and-op-ed/public-still-unclear-role-civil-parties-eccc
Etcheson C (2006) A ‘Fair and Public Trial’: A Political History of the Extraordinary Chambers.
Open Society Justice Initiative, Phnom Penh, pp 7-24
Forster T (2012) The Khmer Rouge and the Crime of Genocide – Issues of Genocidal Intent With
Regard to the Khmer Rouge Mass Atrocities. Dike Verlag, Zurich/St. Gallen
Giry S (2014) The Genocide That Wasn’t, The New York Review of Books www.nybooks.com/bl
ogs/nyrblog/2014/aug/25/khmer-rouge-genocide-wasnt. Accessed 15 June 2015
Greenawalt A (1999) Rethinking Genocidal Intent: The Case for a Knowledge-Based
Interpretation. Columbia Law Review 99:2259-2294
Hannum H (1989) International Law and Cambodian Genocide: The Sounds of Silence. Human
Rights Quarterly 11:82-138
Heder S (2007) Racism, Marxism, Labelling and Genocide in Ben Kiernan’s ‘The Pol Pot
Regime’, The South East Asia Research 5:101-153.
Jarvis H, Fawthrop T (2004) Getting Away With Genocide? Pluto Press, London
Kiernan B (1996) The Pol Pot Regime: Race, Power and Genocide in Cambodia Under the
Khmer Rouge - 1975-79. Yale University Press, New Haven, London
Lemkin R (1944) Axe’s Rule in Occupied Europe. Carnegie, Washington
Linton S (2007) Putting Cambodia’s Extraordinary Chambers Into Context. Singapore Yearbook
of International Law 9:195-259
Lisson D (2008) Defining ‘National Group’ in the Genocide Convention: A Case Study of Timor-
Leste. Stanford Law Review 60:1459-1496
Mohan M (2008) Reconstituting the “Un-Person”: the Khmer Krom & the Khmer Rouge
Tribunal. Singapore Yearbook of International Law and Contributors 12:43-55
Nersessian D (2005) Rethinking Cultural Genocide Under International Law. Human Rights
Dialogue: ‘Cultural Rights’
Nersessian D (2010) Genocide and Political Groups. Oxford University Press, New York
http://www.carnegiecouncil.org/publications/archive/dialogue/2_12/section_1/5139.html.
Accessed 15 June 2015
Nouwen S (2006) Hybrid courts: The Hybrid Category of a New Type of International Crimes
Courts. Utrecht Law Review 2:190-214
Olivie A, Muwero H (2009) Textual Discrepancies 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 and their Legal Consequences.
International Human Rights Clinic, Seattle University
Park R (2011) Proving Genocidal Intent: International Precedent and ECCC Case 002. Rutgers
Law Review 63:129-191
Ponchaud F (2001) Cambodge, année zero. Kailash, Pondichéry
Ponchaud F (2013) L’impertinent du Cambodge, entretiens avec Dane Cuypers. Magellan & Cie,
Paris
Ponchaud F (2014) Brève histoire du Cambodge. Magellan & Cie, Paris
Quigley J (2006) The Genocide Convention: An International Law Analysis. Ashgate, Aldershot
UK
Ratner S, Abrams J, Bischoff J (2009) Accountability for Human Rights Atrocities in
International Law - Beyond the Nuremberg Legacy. Oxford University Press, Oxford
Schabas W (2000) Genocide in International Law: The Crime of Crimes. Cambridge University
Press, Cambridge
Schabas W (2001) Problems of International Codification – Were the Atrocities in Cambodia and
Kosovo Genocide? New England Law Review 35:287-302
Sémelin J (2005) Purifier et Détruire, Usages politiques des massacres et génocide. Seuil, Paris
Sher S (2004) Le Kampuchéa des ‘Khmers rouges’: Essai de compréhension d’une tentative de
révolution. L’Harmattan, Paris
Simon T (2007) The Law of Genocide: Prescriptions For a Just World. Greenwood Publishing
Group, United States
Sliwinski M (1995) Le génocide khmer rouge : une analyse démographique. L’Harmattan, Paris
Ternon Y (1995) L’Etat criminel - Les génocides au XXème siècle. Seuil, Paris
Van Schaak B (1997) The Crime of Political Genocide: Repairing the Genocide Convention’s
Blind Spot. Yale Law Journal 106:2259-2291
Williams S (2004) The Cambodian Extraordinary Chambers - A Dangerous Precedent for
International Justice? International & Comparative Law Quarterly 53:209-227
Young R (2010) How Do We Know Them When We See Them? The Subjective Evolution in
the Identification of Victim Groups for the Purpose of Genocide. International Criminal Law
Review 10:1-22
Chapter 11
Forced Transfer and Customary
International Law: Bridging the Gap
Between Nuremberg and the ICTY
Nathan Quick
Abstract The Case 002 Closing Order charged displacements as the other inhumane
act of forced transfer, and it was on this basis that convictions for the same were
entered by the ECCC Trial Chamber. However, the Closing Order did not reflect the
state of customary international law by 1975. Rather, the ECCC could have charged
and convicted the Case 002 accused for deportation within national boundaries. By
analysing the evolution of forced displacement as a crime, this article demonstrates
that deportation within national boundaries was recognised as a crime in customary
international law by 1975.
Keywords Crimes against humanity · War crimes · Forced transfer · Deportation ·

Other inhumane acts · Customary international law · Nullum crimen sine lege
Contents
11.1 Introduction........................................................................................................................ 292
11.2 The Stakić Distinction........................................................................................................ 292
11.3 Deportation by 1975.......................................................................................................... 293
11.3.1 Original Meaning................................................................................................... 294
11.3.2 Deportation as a War Crime Prior to 1975............................................................. 295
11.3.3 Deportation as a Crime Against Humanity Prior to 1975...................................... 298
11.4 Conclusion......................................................................................................................... 319
N. Quick (*)
ICC, The Hague, The Netherlands
e-mail: nathan.w.quick@gmail.com

DOI 10.1007/978-94-6265-105-0_11
292 N. Quick
11.1 Introduction
On 7 August 2014, Nuon Chea and Khieu Samphan were convicted of crimes
against humanity and sentenced to life imprisonment.1 This first trial in Case 002
focused on crimes committed in the course of two phases of population move-
ments and at Tuol Po Chrey. The Case 002 Closing Order characterized the dis-
placements themselves as other inhumane acts through forced transfer.2 However,
as noted by the Trial Chamber, forced transfers, i.e. displacements within national
boundaries, were recognized by various legal instruments and courts as crimes in
their own right long before the population movements of the Khmer Rouge.3 Thus,
although the Chamber assessed whether the forced transfers qualified as other
inhumane acts in line with the charges as specified in the Closing Order,4 it would
have been open to the ECCC to charge and convict for deportation within national
boundaries. Indeed, the Co-Investigating Judges’ distinction between international
and internal transfers parallels that made by the majority of the ICTY Appeals
Chamber in 2006,5 and does not reflect the state of customary international law by
1975, the commencement of the temporal jurisdiction of the ECCC.
11.2 The Stakić Distinction
Distinguishing the two types of forced displacement (namely, deportation and

forced transfer), a majority of the ICTY Appeals Chamber adopted a simplified
and narrow definition of deportation: the forced transfer of protected persons from
a place they are lawfully residing across de jure or de facto international bounda-
ries.6 All forms of internal displacement, including across ‘constantly changing
front lines,’7 were incorporated into the other inhumane act of forced transfer.8
A forced transfer rises to the level of another inhumane act when it violates the
‘right of the victim to stay in his or her home and community and the right not to

2014.
2Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427), Co-Investigating Judges,
15 September 2010, §§ 1448–1469.

3Nuon Chea and others, supra note 1, § 454.
4Nuon Chea and others, supra note 1, §§ 552, 639.
5Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, § 300.
6Ibid., § 300; Judgment, Krajišnik (IT-00-39-A), Appeals Chamber, 17 March 2009, § 330.
7Ibid., §§ 288–303.
8Ibid., § 317.
11 Forced Transfer and Customary International Law … 293
be deprived of his or her property by being forcibly displaced to another loca-

tion.’9 In turn, these were the definitions endorsed at the ICTR.10
Conversely, ICTY Trial Chambers and two Judges of the ICTY Appeals
Chamber, in a series of separate opinions and dissents, impugned this definition.
They considered that deportation is purpose and effect based, rather than destina-
tion-defined. The Stakić Trial Chamber warned that a ‘fixed destination require-
ment might consequently strip the prohibition against deportation of its force.’11
Instead, Judge Schomburg defined deportation as displacement from ‘an area
affording protection.’12 Similarly, Judge Shahabuddeen focused on whether a dis-
placement effectively prevents or seriously inhibits the displaced population from
returning to its accustomed area of residence.13
11.3 Deportation by 1975
Despite the confusion at the ICTY, prior to 1975, the crossing of an international
boundary was not an element of deportation as a war crime or crime against
humanity. Rather, so long as the relevant chapeau elements were satisfied, a crim-
inal deportation prior to 1975 was the (1) forced displacement (2) of the legal resi-
dent of a territory (3) resulting in the removal of a victim from the comforts and
protections of their area of residence (4) without legal title, for an unlawful pur-
pose or under inhumane conditions.14 This definition is reflected in the Case
9Ibid.,§ 300; Krajišnik, supra note 6, § 330.

10See, e.g. Judgment, Muvunyi (ICTR-2000-55A-T), Trial Chamber, 12 September 2006, § 528.
11Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, § 677.
12Judgment, Naletilić and Martinović (IT-98-34-A), Appeals Chamber, 3 May 2006, Dissenting
Opinion of Judge Schomburg, § 26; Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17

September 2003, Separate Opinion of Judge Schomburg, § 15.
13Stakić, supra note 5, Dissenting Opinion of Judge Shahabuddeen, §§ 21–75; Krnojelac, supra
note 12, Separate Opinion of Judge Shahabuddeen, § 218.

14Such elements were incorporated within the definition of the war crime of deportation. Judgment,
Krupp and others (Case No. 10, ‘The Krupp Case’), Military Tribunal III, 31 July 1948, in Trials of
War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol.
IX (Washington, DC: U.S. Government Printing Office, 1949), at 1432–1433, adopting Judgment,
Milch (Case No. 2, ‘The Milch Case’), Military Tribunal II, 17 April 1947, Concurring Opinion
by Judge Fitzroy D. Phillips, in Trials of War Criminals Before the Nuernberg Military Tribunals
Under Control Council Law No. 10, Vol. II (Washington, DC: U.S. Government Printing Office,
1949), at 865–866. Crimes against humanity extended the protections of war crimes as they existed
as of the World War II era to stateless persons, a sovereign’s own nationals, and others not pre-
viously protected. Judgment, Göring and others, International Military Tribunal, 1 October
1946, in The Trial of the Major War Criminals Before the International Military Tribunal, Part 1
(Nuremberg Germany: IMT Secretariat, 1947), at 254–255; Opinion and Judgment, Altstoetter
and others (Case No. 3, ‘The Justice Case’), Military Tribunal III, 4 December 1947, in Trials of
War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol.
III (Washington, DC: U.S. Government Printing Office, 1949), at 972–973; Judgment, Eichmann
(Case No. 40/61), District Court of Jerusalem, 11 December 1961, § 206.
294 N. Quick
002/01 Trial Judgment.15 Nevertheless, displacements resulting in partial removal

from the protections and comforts of an area of residence were not crimes per se
prior to 1975.16
Below, the elements of deportation as a crime against humanity are set out as
they existed prior to 1975. Reference is made to jurisprudence, conventional and
treaty law, and state practice insofar as such sources may indicate the state of cus-
tomary international law prior to 1975. Further, ‘deportation as a crime against
humanity developed out of deportation as a war crime—as a way of extending the
scope of the crime’s protection to civilians of the same nationality as the perpetra-
tor.’ Accordingly, reference to, and reliance upon, sources concerning the war
crime of deportation is appropriate and instructive, particularly prior to the exist-
ence of deportation as a crime against humanity.17
11.3.1 Original Meaning
The term ‘deportation’ is derived from the Latin verb deportare meaning ‘to carry
away.’18 Deportatio, in Roman Law, ‘was the severest form of banishment since it
included additional penalties, such as seizure of the whole property, loss of Roman
citizenship’ and removal of patria postestas, i.e. authority as head of a family.19 A
deportatus was displaced from particular places, to a particular place, or within the
constraints of an island or desert oasis.20 Notably, other forms of punishment such
as condemnation to forced labour or arena combat (death) resulted in the loss of
citizenship, property and family position thus ‘resembl[ing] deportatio in its con-
sequences.’21 In contrast, a relegatus, although similarly banished from or to a par-
15Nuon Chea and others, supra note 1, § 450.

16Although a deportation may occur in stages, either beginning with separation in law and physi-
cal segregation within a territory, or beginning with displacement and then removal of rights, it
must ultimately result in physical removal from all comforts and protections of a home area. For
example, legislation mandating the wearing of Stars of David, removal from the jurisdiction of
local courts, and concentration in ghettos or assembly points all constituted stages of one larger
removal scheme resulting in part in deportations. Eichmann, supra note 14, §§ 82–83, 90, 90(d),
99, 112; Judgment, Buhler, Supreme National Tribunal of Poland, 10 July 1948, reported in Law
Reports of Trials of War Criminals, Vol. XIV (United Nations War Crimes Commission, London:
1949), at 36; Judgment, Greiser, Supreme National Tribunal of Poland, 7 July 1946, reported
in Law Reports of Trials of War Criminals, Vol. XIII (United Nations War Crimes Commission,
London: 1948), at 78, 88.
17Stakić, supra note 5, § 289; Eichmann, supra note 14, § 206.
18Black’s Law Dictionary (8th Edition: Thomson West, 2004), at 471.
19Ibid.; A Dictionary of Greek and Roman Antiquities (J. Murray, London: 1875), at 513–517.
20Ibid. See also, Krnojelac, supra note 12, Separate Opinion of Judge Schomburg, § 13.
21A Dictionary of Greek and Roman Antiquities, supra note 19, at 513–517.
ticular location, retained the other comforts and protections of his home territory
including his citizenship, property, and his family position.22
‘Deportation’, however, is defined in Black’s Law Dictionary as the ‘act or an
instance of removing a person to another country; esp., the expulsion or transfer of
an alien from a country.’23 Yet, relying on the Latin and French origins of the
word, other dictionaries provide definitions of ‘deport’ that more closely conform
to the Roman penalty deportatio.24 The common definition of ‘deport’ includes
not only removal of an alien from a country, but also ‘to send or carry off; trans-
port, especially forcibly.’25
11.3.2 Deportation as a War Crime Prior to 1975
Just as deportatio removed a national from the comforts and protections of home,
the war crime of deportation sought to prevent an occupying authority from
removing civilians in and of occupied territories from those same comforts and
protections. ‘The rationale for this rule lies in the supposition that the occupying
power has temporarily prevented the rightful sovereign from exercising its power
over its citizens.’26 In other words, measures with permanent effect on those
within the authority and jurisdiction of another sovereign cannot be taken by a
temporary authority such as an occupying authority, absent justification or consent
of the rightful sovereign.27 Thus the war crime of deportation, as set out in the
22Black’s Law Dictionary, supra note 18, at 1316; A Dictionary of Greek and Roman Antiquities,
supra note 19, at 513–517.
23Black’s Law Dictionary, supra note 18, at 471.
24See also, Stakić, supra note 5, Dissenting Opinion of Judge Shahabuddeen, §§ 44–47.
25Random House Dictionary (Random House, Inc., 2012). See also, Collins English Dictionary
(10th Edition: Harper Collins Publishers, 2009) (‘to carry (an inhabitant) forcibly away from his
homeland; transport; exile; banish’); Merriam-Webster Dictionary (2012) (‘to carry away’).
26Milch, supra note 14, Concurring Opinion by Judge Fitzroy D. Phillips, at 865; Krupp and oth-
ers, supra note 14, at 1432–1433.

27Opinion and Judgment, Ohlendorf and others (Case No. 9, ‘The Einsatzgruppen Case’),
Military Tribunal II, 8–9 April 1948, in Trials of War Criminals Before the Nuernberg Military
Tribunals Under Control Council Law No. 10, Vol. IV (Washington, DC: U.S. Government
Printing Office, 1949), at 496–500; Judgment, List and others Case No. 7, “Hostage Case”),
Military Tribunal V, 19 February 1948, in Trials of War Criminals Before the Nuernberg Military
Tribunals Under Control Council Law No. 10, Vol. XI (Washington, DC: U.S. Government
Printing Office, 1949), at 1302 (‘The conclusion reached is in accord with previous pronounce-
ments of international law that an occupying power is not the sovereign power although it
is entitled to perform some acts of sovereignty’). See also Dissenting Opinion of Judge Read,
Liechtenstein v. Guatemala, 1955 I.C.J. 4 (6 April 1955), at 48 (One state cannot ‘extinguish’
the right of another under international law to “protect its own national without consent of that
country”).
296 N. Quick
post-World War II jurisprudence, acknowledged three conditions under which

deportation was illegal: ‘if the transfer is carried out without legal title,’ ‘when the
purpose of the displacement is illegal,’ or ‘whenever generally recognized stand-
ards of decency and humanity are disregarded.’28 Moreover, deportation was a
crime distinct from any other crime it accompanied, facilitated or caused.29
Through a series of wars and ‘world upheavals,’ the concept of deportation,
just as other war crimes, ‘grew to meet the exigencies of changing conditions.’30
Deportation during times of war was first condemned by the Lieber Code in
1863: ‘[p]rivate citizens are no longer [to be] … carried off to distant parts.’31
Then, in 1898, the President of the United States, during war with Spain,
declared that inhabitants of occupied territory ‘are entitled to the security of their
person and property and in all their private rights and religions … [The occupy-
ing authority must] protect them in their homes, in their employment, and in their
personal and religious rights…’32 Less than ten years later, these principles were
echoed in the Hague Regulations: ‘it is expressly forbidden to declare abolished,
suspended, or inadmissible in a court of law the rights and actions of the hostile
party;’ the occupying authority shall take all measures in its power to restore and
ensure ‘public order and safety while respecting, unless absolutely prevented, the
law enforced in the country;’ and ‘family honor and rights, the lives of persons
and private property as well as religious convictions and practice must be
respected.’33 Next, following World War I, the deportation of labourers under
inhumane conditions or to forced labour in the territory of the occupying power
was condemned.34
28Milch, supra note 14, Concurring Opinion by Judge Fitzroy D. Phillips, at 865; Krupp and oth-
ers, supra note 14, at 1432–1433.

29Milch, supra note 14, Concurring Opinion by Judge Fitzroy D. Phillips, at 865; Krupp and
others, supra note 14, at 1432–1433 (deportation to slave labour and enslavement are ‘separate
crimes and different types of crimes’).
30Altstoetter and others, supra note 14, at 966–968, 1059.
31Article 23, F. Lieber, Instructions for the Government of Armies of the United States in the
Field (General Order No. 100), 24 April 1863.

32Altstoetter and others, supra note 14, at 1059 (quoting General Order No. 101, 18 July 1898
and noting that a similar order was made during World War I).
33Altstoetter and others, supra note 14, at 1076–1077, quoting Arts 23(h), 43, 46 Convention
(IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land, The Hague, 18 October 1907.
34Report submitted to the Preliminary Conference by the Commission on Responsibility of the
Authors of the War and on Enforcement of Penalties, Versailles, 29 March 1919. See also, Krupp
and others, supra note 14, at 1429 (noting that the criminal deportation of Belgian labourers to
Germany during World War I ‘caused worldwide indignation’).
Finally, following World War II, the IMT Charter35, Control Council Law No. 1036
and the Nuremberg Principles37 expressly condemned ‘deportation to slave labour or
for any other purpose’ as a war crime. In turn, Geneva Convention (IV) forbade the
‘transfer’ of protected persons to a country where he or she may have reason to fear
persecution38; individual or mass forcible transfers, as well as deportations, of pro-
tected persons from occupied territory to any other country regardless of motive39;
evacuations in an occupied territory unless security of the population or military rea-
sons so demand40; and ‘unlawful deportation or transfer … of a protected person.’41
Later, in the years leading up to the Khmer Rouge regime, the scope of forced
displacement as a war crime transcended deportation to include forced transfers
even if temporary or resulting in removal from only some of the comforts and pro-
tections of one’s area of residence. The 1974 UN Declaration on the Protection of
Women and Children criminalized ‘forcible eviction committed by belligerents in
the course of military operations or in occupied territories.’42 In 1977, Additional
Protocol I, applicable in international armed conflicts, characterized ‘the deporta-
tion or transfer of all or parts of the population of the occupied territory within or
outside this territory, in violation of Article 49 of the Fourth [Geneva] Convention’
as a grave breach.43 Additional Protocol II, applicable in non-international armed
conflicts, forbade displacement of the civilian population not justified by civilian
security or military imperative and the compulsory movement of civilians from
their own territory for reasons connected with the conflict.44
35Article 6(b) Charter of the International Military Tribunal, London, 8 August 1945 (hereinafter
IMT Charter). See also, London Resolution, Allied Governments, 13 January 1942 (condemning
the ‘regime of terror characterized by amongst other things by […] mass expulsions’ and resolv-
ing to punish ‘those guilty of or responsible for the crimes whether they have ordered them, per-
petrated them, or participated in them’).
36Article II(1)(b) Allied Control Council Law No. 10: Punishment of Persons Guilty of War
Crimes, Crimes against Peace and against Humanity, enacted by the Allied Control Council of
Germany, Berlin, 20 December 1945.
37Principle VI(b) Principles of International Law Recognized in the Charter of the Nuremberg
Tribunal and in the Judgment of the Tribunal, adopted by the International Law Commission,
A/1316, 5 June–29 July 1950.
38Article 45(4) Convention (IV) relative to the Protection of Civilian Persons in Time of War,
Geneva, 12 August 1949 (hereafter Geneva Convention IV).

39Article 49(1) Geneva Convention IV.
40Article 49(2) Geneva Convention IV.
41Article 147 Geneva Convention IV (such deportation or transfer was considered a grave
breach).
42United Nations Declaration on the Protection of Women and Children in Emergency and
Armed Conflict, A/RES/3318(XXIX), 14 December 1974, § 5.

43Article 85(4)(a) Protocol Additional to the Geneva Conventions of 12 August 1949, and relat-
ing to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977.
44Article 17 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts, Geneva, 8 June 1977.

298 N. Quick
11.3.3 Deportation as a Crime Against Humanity

Prior to 1975
The IMT Charter,45 IMTFE Charter,46 Control Council Law No. 1047 and the
Nuremberg Principles48 codified deportation as a crime against humanity. Later,
certain deportations were also encompassed within the crimes against humanity of
genocide and apartheid.49
Crimes against humanity extended the protections of those of or in occupied terri-
tories—as such protection existed in the World War II era—to stateless persons and
a sovereign’s own nationals.50 Crimes against humanity therefore aimed to safeguard
not only the rights of a rightful sovereign and its nationals from the interference of
an occupying authority, but also to protect civilians from the rightful sovereign itself.
Nevertheless, the rights of a sovereign are broader than those of an occupying
authority. Whereas an occupying authority has no legal title to displace, subject to
the conditions laid out in international law, a person in or of an occupied territory
absent military necessity or civilian security concerns,51 a rightful sovereign has, or
at least had during World War II, legal title to internally or externally displace those
present within its territory.52 Legal title, however, was no defence to any deportation
resulting in removal from the comforts and protections of an area of residence for an
unlawful purpose or under inhumane conditions. Indeed, as derived from the war
crime, the crime against humanity of deportation encompasses the forced removal of
45Article 6(c) IMT Charter.

46Article 5(c) Charter of the International Military Tribunal for the Far East, Tokyo, 19 January
1946.
47Article II(1)(c) Control Council Law No. 10.
48Principle VI(c) Nuremberg Principles.
49Adoption of the Convention on the Prevention and Punishment of Genocide, A/RES/260(III), 9
December 1948, Annex: Articles II(c) (‘Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part’), II(e) (‘Forcibly transferring children of the
group to another group’); International Convention on the Suppression and Punishment of the Crime
of Apartheid, A/RES/3068(XXVIII), 30 November 1973, Article II (The crime of apartheid applies to
‘infringement of [a group’s] freedom or dignity’ (Article II(a)(ii)); ‘deliberate imposition on a racial
group or groups of living conditions calculated to cause its or their physical destruction in whole or in
part’ (Article II(b)); any measures calculated denying basic human rights including ‘the right to leave
and return to their country, the right to a nationality, the right to freedom of movement and residence’
(Article II(c)); any measures ‘designed to divide the population along racial lines’ (Article II(d))).
50Altstoetter and others, supra note 14, at 973.
51List and others, supra note 27, at 1302. See also, Article 49(2) Geneva Convention IV.
52Judgment, Pohl and others (Case No. 4, ‘The Pohl Case’), Military Tribunal II, 3 November
1947, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council
Law No. 10, Vol. V (Washington, DC: U.S. Government Printing Office, 1949), at 974.
residents from an area’s protections and comforts without legal title, for an unlawful
purpose, and under inhumane conditions.53
11.3.3.1 The Displacement Must Be Forced
A criminal displacement must be forced.54 The use of direct force includes those
measures originating ‘in the blackest periods of the slave trade:’55 manhunts ‘in
the streets, at motion-picture houses, even at churches and at night in private
houses;’56 the carrying of elderly persons on stretchers57; temporary detention;58
and transport under guard and/or in sealed carriages or train cars.59
53Krupp and others, supra note 14, at 1432–1433 adopting Milch and others, supra note 14,
Phillips Concurrence, at 865–866.

54Judgment, von Weizsaecker and others (Case No. 11, ‘The Ministries Case’), Military Tribunal
IV, 31 July 1948, in Trials of War Criminals Before the Nuernberg Military Tribunals Under
Control Council Law No. 10, Vol. VIII (Washington, DC: U.S. Government Printing Office,
1949), at 501 (‘Jews left the country voluntarily or by deportation’), 503 (‘forcing all Jews to
emigrate’), 637, 697, 816, 817, 822–824, 828, 831–832 (‘out of the 5 million workers who
arrived in Germany, not even 200,000 came voluntarily’); Judgment, von Leeb and others (Case
No. 12, ‘The High Command Case’), Military Tribunal V, 19 February 1948, in Trials of War
Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol. XI
(Washington, DC: U.S. Government Printing Office, 1949), at 606, 608–609 (‘This clearly dis-
poses of any contention that the recruitment of those classes for labor in the Reich was on any
voluntary basis’); Opinion and Judgment, Greifelt and others (Case No. 18, ‘The RuSHA Case’),
Military Tribunal I, 10 March 1948, in Trials of War Criminals Before the Nuernberg Military
Tribunals Under Control Council Law No. 10, Vol. V (Washington, DC: U.S. Government
Printing Office, 1949), at 126, 140; Krupp and others, supra note 14, at 1429; Decision and
Judgment of the Tribunal, Krauch and others (Case No. 6, ‘The I.G. Farben Case’), Military
Tribunal IV, 31 July 1948, in Trials of War Criminals Before the Nuernberg Military Tribunals
Under Control Council Law No. 10, Vol. VIII (Washington, DC: U.S. Government Printing
Office, 1949), at 1183 (acquitting an accused as the voluntary nature of the movement of female
Ukrainian workers was not disclosed); Eichmann, supra note 14, § 210. See also, Stakić, supra
note 5, § 179; Elements of the Crimes, ICC, 2011, at 6–7.
55Göring and others, supra note 14, at 245.
56Göring and others, supra note 14, at 245; Krauch and others, supra note 54, at 1173. See also,
Milch, supra note 14, Musmanno Concurrence, at 800, 802; von Weizsaecker and others, supra
note 54, at 795, 799, 803–804 (deportations were done ‘by drastic and vile methods, including
systematic impressment in the streets and by police invasions in homes’); Eichmann, supra note
14, § 100 (‘Jew-hunts’ became common across Belgium).
57von Weizsaecker and others, supra note 54, at 491; Eichmann, supra note 14, at 75.
58Milch, supra note 14, Musmanno Concurrence, at 800 (Ukrainian skilled workers were ‘dragged
from their beds at night to be locked up in cellars until shipped’); Krupp and others, supra note 14,
at 1398; Eichmann, supra note 14, §§ 84(b) (Jews were transferred to concentration points prior to
shipment), 100; Greiser, supra note 16, at 91 (Poles were often first taken to transit camps).
59Von Leeb and others, supra note 54, at 604–605 (Workers ‘wept when they were being shipped
away’, most were ‘dragged away’ and ‘had to be closely guarded at all times for otherwise they
would have run away’); Krupp and others, supra note 14, at 1398; von Weizsaecker and others,
supra note 54, at 813–814; Milch and others, supra note 14, Musmanno Concurrence, at 800;
Eichmann, supra note 14, §§ 77, 84(b), 100, 210.
300 N. Quick
Force, however, may also be by more indirect, ‘genteel methods’60 including

fraud, coercion and terror.61 First, displacement by fraud during the World War II
era, included false information that ‘transfers’ complied with international agree-
ments;62 false promises that for every labourer who volunteered to deportation to
the occupying country one prisoner of war would be returned;63 ordering civilians
to report ‘only for registration’ and then forcibly transporting them instead;64
promising better living conditions and compensation for property left behind;65
falsely assuring victims that their displacement would be only temporary;66 and
inducing victims to forfeit their property with false promises of food, medical care
and housing after their ‘change of residence.’67
Second, coercive measures resulting in forced displacement include the with-
drawal of ration cards; the discharge and denial of unemployment benefits or alter-
native employment; and police threats.68
Finally, exploitation of a panic69 and ‘the pressure of terror’70 are other indica-
tions of the forced nature of a displacement. Such measures include limitations on
the taking of personal effects or money;71 lack of, or insufficient, notice including
60Milch and others, supra note 14, Musmanno Concurrence, at 800.

61Stakić Appeal Judgment, § 281 (coercion includes ‘fear of violence, duress, detention, psycho-
logical oppression or abuse of power against such person or persons or another person, or by tak-
ing advantage of a coercive environment’).
62Von Weizsaecker and others, supra note 54, at 491 (French-speaking inhabitants of Lorraine
falsely informed that a choice between emigration to unoccupied France or ‘transfer’ to Poland
complied with an agreement between Vichy and German governments).
63Göring and others, supra note 14, at 244.
64Milch and others, supra note 14, Musmanno Concurrence, at 800.
65Greifelt and others, supra, note 54, at 127.
66Eichmann, supra note 14, § 237 (Hungarian Jews slated for deportation were assured that ‘eve-
rything happening to the Jews was only for the duration of the War’).
67Eichmann, supra note 14, § 96(a) (German Jews transferred their property to the Reich prior to
‘their change of residence’ and in return, were promised food, medical care, and housing in the
Terezin camp).
68Göring and others, supra note 14, at 244; Milch and others, supra note 14, Musmanno
Concurrence, at 800 (withholding unemployment insurance to Polish workers).

69Eichmann, supra note 14, § 64.
71Von Weizsaecker and others, supra note 54, at 491 (German Jews evacuated to France were
permitted only 50 kg. of baggage and limited money), 599; Eichmann, supra note 14, §§ 62 (‘the
capitalists would emigrate only after they had been robbed of their capital by terrorist meas-
ures’), 66 (‘After paying taxes (the “flight” tax and the “Jewish” tax), the emigrant had also to
pay the full value of the movable goods which he was allowed to take with him. He also had to
hand over his apartment and was compelled to give a Power of Attorney to a bank in respect of
the rest of his property, so that he left the country bare of all his property, with the exception of
baggage weighing a few kilograms’), 81 (victims of forced emigration were only allowed the
sum of money necessary to obtain permit into his country of destination).
a sense of urgency or a ‘hurried pace;72’ the timing of a displacement and cur-

fews;73 failure to inform victims or their family of the destination or purpose of a
displacement;74 or the arbitrary selection of targets.75
11.3.3.2 The Displacement Must Be of Legal Residents
Prior to 1975, a sovereign had the right to deport aliens from its own territory.76 A
sovereign could also deport or displace its own nationals. An occupying power,
however, had no right to deport the civilians—whether stateless, aliens or nation-
als—in and of an occupied territory for any reason. Further, no alien or national in
any territory could be deported for an unlawful purpose or by unlawful means.
Accordingly, legal residents of a sovereign’s own territory or occupied territory,
for purposes of deportation, may include refugees and stateless persons, as well as
nationals.77
72Von Weizsaecker and others, supra note 54, at 491 (victims were given only one or two hours
warning); Greiser, supra note 16, at 87 (Poles and Jews in Poznan were driven out of their homes
without even time to dress).
73Von Weizsaecker and others, supra note 54, at 518; Milch and others, supra note 14,
Musmanno Concurrence, at 800 (victims were dragged from their beds in the middle of the
night); Eichmann, supra note 14, §§ 75 (Jews in Stetton were deported in the early morning
hours), 210; Greiser, supra note 16, at 87 (‘To make it impossible for Poles to avoid deporta-
tion an order was published […] instructing all Poles and Jews in Poznan to remain within their
homes between 9:30 p.m. and 6 o’clock in the morning’).
74Altstoetter and others, supra note 14, at 1034, 1056, 1058; Milch and others, supra note 14,
Phillips Concurrence, at 871.

75Greiser, supra note 16, at 87.
76Von Weizsaecker and others, supra note 54, Powers Dissent, at 912–913 (No grounds exist
based on foreign politics to object to the deportation of those who are stateless or whose country
has agreed to their deportation).
77Von Weizsaecker and others, supra note 54, at 480 (‘deportation’ of ‘German Jews living in
occupied territory who had lost their citizenship and were then stateless’), 496, 500, 633–4, 654
(‘it is clear that, among the Jews deported from Hungary, there were refugees from territories
occupied by Germany in the course of its numerous aggressions’); von Leeb and others, supra
note 54, at 572; Pohl and others, supra note 52, Musmanno Concurrence, at 1120, 1126 (‘Europe
became a nomadic continent. Refugees, workers, slaves, laborers, captured people crossed fron-
tiers and entered new horizons in a kaleidoscopic travelogue of misery and degradation that has
no parallel even in fiction’); Eichmann, supra note 14, §§ 100 (stateless Jews were rounded up in
France and Belgium for deportation), 111 (stateless Jews were deported from Hungary to Galicia
and many of them executed). See also Judgment, Popović and others (IT-05-88-T), 10 June 2010,
§§ 897, 900 (formal legal residence should not be required).
302 N. Quick
11.3.3.3 The Displacement Must Remove Victims from the Comfort

and Protections of Their Area of Residence
Deportation victims must be deprived of various protections and comforts such

as their citizenship78 or at least, those protections and comforts dependent
upon, or emanating from, one’s citizenship or residence79 including property,80
community81 and family.82 Deprivation of such rights by displacement must be
78Von Weizsaecker and others, supra note 54, at 508 (plans were made to remove Romanian Jews
to the Lublin Ghetto; they would lose their nationality upon crossing the Romanian border), 635
(‘members of the ethnic people’ and ‘ethnic Germans’ were eligible for German citizenship and
were resettled), 647 (Hungary was pressured as early as 1942 ‘to deprive Jews of their citizen-
ship, so that the deportation measures could be carried out against them’), 671 (German Jews
living abroad, ‘as well as those who might in the future take up ordinary residence there,’ were
deprived of their citizenship); Göring and others, supra note 14, at 300 (a decree ‘placed [Jews]
‘outside the law’ and handed them over to the Gestapo’); Eichmann, supra note 14, §§ 85, 101
(‘Dutch Jews were declared outlawed’), 102 (Norwegian Jews lost their nationality upon cross-
ing the border). See also, Apartheid Convention, supra note 49, Article II(c) (basic human rights
include ‘the right to leave and return to their country, the right to a nationality, the right to free-
dom of movement and residence’).
79Von Weizsaecker and others, supra note 54, at 598 (‘eastern peoples’ were ‘reduced to a posi-
tion of uneducated ignorant serfs of the Germans without culture or leadership’), 635 (civilians
were either ‘protectees’ or not); Greifelt and others, supra note 54, at 94 (Jews and those Poles
not susceptible to Germanization were to be deported to the remainder of Poland, ‘[t]hereby the
Polish peasant loses the basis of his existence … by cancellation of all their obligations ruthlessly
and as soon as possible’), 95 (in the ‘remainder of Poland,’ citizenship would be given, but no
political parties, associations, non-political clubs, cultural associations, medical care beyond pre-
vention of epidemics spreading to the Reich, the discouragement of hygienic measures, and the
promotion of abortion and birth control), 106–107; Milch and others, supra note 14, Musmanno
Concurrence, at 850; Greiser, supra note 16, at 78, 88 (‘naturally only Germans were citizens of
the Reich; Poles were merely under ‘protection’ and so as a population second-rate’). See also
Apartheid Convention, supra note 49, Article II(c); Stakić Appeal Judgment, § 277; Krnojelac
Appeal Judgment, § 218; Naletilić and Martinović, supra note 12, Dissenting Opinion of Judge
Schomburg Dissent, § 26 (‘a displaced person loses the ability to live and socialize in his or her
community […] [and] has to leave property behind’).
80Von Weizsaecker and others, supra note 54, at 644 (deported Jews ‘not only lost their citizen-
ship and became stateless, but suffered confiscation of property. A more heartless provision can
hardly be imagined’); Greifelt and others, supra note 54, at 129 (an evacuee whose land was
targeted for resettlement ‘was permitted to carry away only a meager amount of personal posses-
sions’); Eichmann, supra note 14, § 112 (Jews were ousted ‘from economic life, robbing them of
their property, confiscating their homes’). See also, Article II(d) Apartheid Convention (forbid-
ding measures ‘expropriat[ing] landed property belonging to a racial group or group’).
81Eichmann, supra note 14, §§ 138 (Jews were gradually ousted from the cultural activities of the
rest of the population), 178 (so long as one Jew was in Holland he had friends and an attorney
advocating for his release), 193 (“Not everywhere will the population submit to the killing of
their neighbors. Therefore, the victims had to be transferred to suitable places”).
82Von Weizsaecker and others, supra note 54, at 598 (‘Racially valuable children’ in the occu-
pied territories were to be taken from their mothers and put into the custody of the Reich). See
also, Article II(e) Genocide Convention (‘Forcibly transferring children of the group to another
group’).
complete;83 criminal deportation requires that civilians be removed both from the
‘pale of the law’, and their home area.84 Thus ‘an innocent operation of resettle-
ment’ cannot qualify as deportation, rather a deportation is an ‘expulsion accom-
panied by degradation of the people, and with malicious intent.’85 Similarly,
procurement and recruitment which maintains forced labourers in their area of res-
idence cannot qualify as deportation.86
Indeed, prior to deportation, Jews, Poles and Gypsies, even those already sub-
ject to various crimes against humanity and war crimes in their home territory, still
enjoyed ‘scanty’ protections and comforts.87 Puppet governments such as those in
Bulgaria, Denmark, France, Romania, Slovakia, and Hungary, as well as other
Axis powers such as Italy, had to consent to deportations of their nationals or those
83Although a deportation may occur in stages, either beginning with separation in law and physi-
cal segregation within a territory or beginning with displacement and then removal of rights, it
must ultimately result in physical removal from all comforts and protections of a home area. For
example, legislation mandating the wearing of Stars of David, removal from the jurisdiction of
local courts, and concentration in ghettos or assembly points all constituted stages of one larger
removal scheme resulting in part in deportations. Eichmann, supra note 14, §§ 82–83 (in many
places removal started with the Jewish Badge), 90 (anti-Jewish legislation set the stage for depor-
tation in Germany), 90(d) (it was a ‘process of putting the Jew outside the pale of the law, which
had been a matter of practice long before this’), 99 (in the occupied countries preliminary con-
ditions modeled on those employed in the Reich were also put it into place), 112 (in Hungary,
legislation was passed in quick succession which ‘aimed, on the German model, at ousting Jews
from economic life, robbing them of their property, confiscating their homes, limiting their free-
dom, and rounding them up in readiness for deportation’); Buhler, supra note 16, at 36 (anti-Jew-
ish and anti-Polish legislation set the stage for deportation in the Government General); Greiser,
supra note 16, at 78, 88.
84Göring and others, supra note 14, at 300 (a decree ‘placed [Jews] ‘outside the law’ and
handed them over to the Gestapo’); Pohl and others, supra note 52, Musmanno Concurrence, at
1121 (‘Alive or dead, [concentration camp inmates] were outside the pale’); Judgment, Goeth,
Supreme National Tribunal of Poland, 5 September 1946, reported in Law Reports of Trials of
War Criminals, Vol. VII (United Nations War Crimes Commission, London: 1948), at 2 (partial
restriction of the personal and economic freedom of Jews was followed by complete deprivation
of personal freedom and confinement in ghettos and finally, transfer to concentration camps for
forced labour and extermination); Eichmann, supra note 14, §§ 90(d), 101.
85Eichmann, supra note 14, §§ 207–208.
86Göring and others, supra note 14, at 332 (considering that a slave labour program that ‘did
keep many laborers in their homes’ was ‘somewhat less inhumane than deportation to Germany’).
304 N. Quick
in their areas of occupation.88 Likewise, even in the occupied countries, the

Protectorate and the Reich, the local authorities afforded some comfort or protec-
tion.89 In fact, so long as civilians were not displaced, their existence was known
and their plight open to supporters.90 To thwart such supporters, the Rasse- und
88Von Weizsaecker and others, supra note 54, at 509, 512 (the Italians attempted ‘to prevent these
measures being taken against Jews of Italian citizenship, and those who had lost their citizen-
ship, but who were attempting to be repatriated as Italians, and Italy demanded that it be left
to Italian authorities to ascertain Italian citizenship’), 662-3 (members of the Slovakian govern-
ment were pressuring the Hungarian government to repatriate the Slovakian Jews being evacu-
ated from Hungary); Ohlendorf and others, supra note 27, at 418, 421, 445–446, 449, 499; von
Weizsaecker and others, supra note 54, at 498 (Switzerland requested the return of Swiss Jews),
540 (a Hungarian minister protested the evacuation of the Jews); Eichmann, supra note 14, §§
96(b) (repatriation requests were granted to national Jews of Italy, Switzerland, Spain, Portugal,
Denmark, Sweden, Finland, Hungary, Romania and Turkey), 100 (the Vichy government frus-
trated RuSHA deportation schemes and Italy refused to collaborate with deportations from their
areas of occupation), 103 (‘most of the [Danish] action failed, due to a ‘leakage’ on the German
side and the active assistance of all sections of the Danish people, from the King down to sim-
ple citizens’), 105 (in Italian-occupied Croatia, Jews were rounded up but were not deported),
107 (in Italian-occupied Greece, Jews were rounded up but not deported), 108 (the Bulgarian
Government objected to evacuate Jews from the old part of Bulgaria and later deportations from
Bulgaria ended as the Bulgarian Government was satisfied with transferring Bulgarian Jews from
Sophia to the provinces), 110 (the Romanian Government rejected the further transport of Jews to
the East in October 1942 and there were no further evacuations: ‘The assistance of the churches,
the Red Cross and neutral countries was mobilized, in order to bring about the change in Marshal
Antonescu’s attitude’ toward Jewish deportation), 113 (the Pope and the King of Sweden inter-
vened with the Hungarian government to end deportations; after bombings of Budapest began,
the Hungarian government bowed to the pressure), 117 (Hungarian assembly camp commanders
were also responsible for various ‘mishaps’ including the release of Jewish notables), 138 (One
Italian Jew living in the Riga Ghetto had ‘influential Italian circles interven[ing] on her behalf’
until the matter was closed with her transfer to a Riga concentration camp), 324.
89Eichmann, supra note 14, § 100 (‘Jew-hunts’ and deportations to Auschwitz were slower in
Brussels ‘because there the Gestapo did not have the same influence upon the other German
administration services as they enjoyed in other places’), 104(c) (in 1944, the Slovakians inter-
rupted evacuations by demanding permission to visit camps, as a preliminary condition for the
renewal of evacuations).
90Altstoetter and others, supra note 14, at 1176 (Jews deported were ‘not attainable for the taking
of evidence, inquiries as to his place of abode as well as applications for his admission of hearing
or examination are superfluous’); von Weizsaecker and others, supra note 54, at 504 (‘Although
later, there were proposals for expulsion of Jews of foreign nationality, including Americans, to
avoid friction’), 510 (insofar as the protective powers in the occupied territories were often una-
ble to determine whether residence outside country were due to voluntary emigration or depor-
tation and therefore no information was given to the public), 512 (The Finns and Swedes were
attempting to ‘help some Jews in their endeavor to leave the German sphere of power by granting
them citizenship’); Eichmann, supra note 14, §§ 101 (RuSHA denied emigration to Dutch Jews
who were members of a pro-German association, although their evacuation was postponed), 178
(so long as one Jew was in Holland he had friends and an attorney advocating for his release).
Siedlungshauptamt-SS (“RuSHA”) often rushed deportations,91 fabricated justifi-

cation,92 and deceived officials in recipient territories.93 Once displaced by
RuSHA, the deportees were within the sole authority of the central office in Berlin
which determined the quota, methods, purpose and destination for all deportations
of Jews, Poles, Gypsies and others to and from Germany, the Protectorate and the
annexed territories.94
Removal from the protections and comforts of an area of residence may be dem-
onstrated by the permanent or indefinite nature of a displacement. The manner in
which it was done,95 including the destruction of villages or burning of houses;96
91Eichmann, supra note 14, §§ 105 (in Croatia, Palestinian immigration permits were arranged
for 400 Jews concentrated internally; RuSHA ordered early evacuation to prevent such emigra-
tion), 136 (when the Argentine Embassy attempted to prevent the transfer of one of its nation-
als in Warsaw, the Jew in question was transferred to Auschwitz and dead within two months),
154(e) (if ‘assent [is] given to additional evacuations of Jews from Budapest, these are to be car-
ried out as far as possible suddenly, and with such speed that the Jews in question will already
have been deported before the completion of formalities’).
92Von Weizsaecker and others, supra note 54, at 510 (a plan was formed to avoid international
condemnation of the deportation of the Jews of Budapest ‘by creating external provocations and
reasons, such as discovery of explosives in Jewish homes and synagogues, the unearthing of
explosives in Jewish homes and synagogues, the unearthing of sabotage organizations, revolu-
tionary plots, attacks on the police, and illegal transactions aimed at undermining the Hungarian
monetary system, which could then become the occasion of the great raid’).
93Eichmann, supra note 14, § 77 (the Vichy government only permitted entry of a deportee trans-
port as they were told that it was a military convoy).

94Göring and others, supra note 14, at 340 (Jews were placed under the exclusive jurisdiction
of the Gestapo); Altstoetter and others, supra note 14, at 1174 (‘The evacuation of Jews from
the occupied territories was carried out under the direction of the SS with the assistance of SS
police units. The extermination of the Jews was carried out under the direction of the SS Central
Organizations’), 1176 (‘The SS was placed beyond the reach of the law’ thus when Jews were
turned over into SS custody, they were ‘deprived of the scanty legal protection they had there-
tofore had’); von Weizsaecker and others, supra note 54, at 655 (Jews deported to concentration
camps were put “at the disposal of the Reich”); Pohl and others, supra note 52, at 969; Krauch
and others, supra note 54, at 1184 (concentration camp inmates were ‘prisoners of the SS. They
were housed, fed, guarded, and otherwise supervised by the SS […] The prisoners were marched
to and from [work sites] under SS guard’); Eichmann, supra note 14, §§ 96(b), 97, 100, 102,
104(b), 105, 156 (Jews were under ‘strict control’ in places like Poland), 178 (Jews in Holland,
once concentrated, were no longer under the protection of the local authority: ‘all the activities
against the Jews are decided in Berlin, and all operations must be subordinate to this; outsiders
[had] no access’ to RuSHA); Buhler, supra note 16, at 37 (Government General district gover-
nors were prevented from exercising their ‘prerogative of mercy in favour of the Jewish victims’).
95The manner of displacement may indicate the permanency of a removal insofar as the victims
are displaced far away and/or are displaced under conditions designed as a first step in extermi-
nation. Eichmann, supra note 14, § 112; Goeth, supra note 83, at 3.
96Von Leeb and others, supra note 54, at 573. See also, List and others, supra note 27, at 1303-5
(‘The more serious charge is that pertaining to the evacuation of large areas within the corps
command for the purpose of conscripting the physically fit into the Croatian military units and of
conscripting others for compulsory labor service’); von Leeb and others, supra note 54, at 573–
574, 576 (villages were destroyed and evacuated, sometimes to the area between the advanced
front line and ‘Panther position’ within the same territory to territories ‘west of the Panther’).
306 N. Quick
the purpose of a displacement;97 or its legal and practical effect98 may all indicate
the permanent or indefinite nature. Moreover, a displacement need not be to a defi-
nite place for it to be considered permanent. Rather, the failure of displaced persons
to find ‘permanent dwelling places for themselves’ may be taken into account in
assessing a crime’s gravity and impact.99
11.3.3.4 Displacement Without Legal Title
During World War II, forced emigration was used to ‘free’ the Protectorates, occu-
pied countries and puppet governments of Jews, Gypsies, alleged communists, aso-
cial persons, and others.100 Forced emigration removed these civilians in and of the
occupied territories across de facto or de jure international boundaries. An occupy-
ing authority has no legal title to displace any civilian from an occupied territory for
any purpose.101 Indeed, Romanian Jews;102 Hungarian Jews;103 Slovakian Jews;104
members of the Czech intelligentsia;105 Poles;106 Austrian Jews;107 Greek Jews;108
Bulgarian Jews;109 Italian Jews;110 Jews from Lorraine, Alsace and Luxembourg;111
97Eichmann, supra note 14, §§ 146 (‘once a Jew entered Auschwitz, he never came out again’), 149
(even at the end of the war, Jews were forced on death marches and to other camps for extermination
rather than allowing their liberation by the allied forces); 208–209 (Poles were deported for various
purposes indicative of the permanency of their displacement: to seasonal labourer as ‘eternal wan-
derers’, to be settled, to make way for German settlers, to be deported to Germany for labour, to be
Germanized, to be deported to Auschwitz for labour, or to be sent to ‘pension villages’).
98E.g. von Weizsaecker and others, supra note 54, at 508 (Plans were made to remove Romanian
Jews to the Lublin Ghetto; they would lose their nationality upon crossing the Romanian border),
598 (eastern peoples ‘reduced to a position of uneducated ignorant serfs of the Germans without
culture or leadership’), 635 (the Nazis categorized persons as either ‘protectees’ or not—Jews and
gypsies in the occupied territories were excluded from protection and evacuated); Göring and oth-
ers, supra note 14, at 300 (Frick signed a decree ‘which placed [Jews] ‘outside the law’ and handed
them over to the Gestapo’), 340 (Jews were removed from the jurisdiction of the normal courts).
99Eichmann, supra note 14, § 210 (‘The fact that […] thousands of Slovenes still had not found
permanent dwelling places for themselves, proves that his act of evacuation bought much human
suffering in its wake’).
100Von Weizsaecker and others, supra note 54, at 469, 484, 485, 495, 498; Buhler, supra note 16,
at 25 (it was mandated that all Poles and Jews from Germany and the incorporated territories
would be concentrated in the Government General).
101List and others, supra note 27, at 1256. See also, Article 49(1) Geneva Convention IV.
102Von Weizsaecker and others, supra note 54, at 508 (deported to Lublin and ‘the East’).
103Von Weizsaecker and others, supra note 54, at 628 (‘evacuated’ to the Reich), 655, 815–6.
104Von Weizsaecker and others, supra note 54, at 663 (‘evacuated’ from Hungary).
105Göring and others, supra note 14, at 238 (‘expelled’).
106Pohl and others, supra note 52, at 985 (‘transferred’ to Riga).
107Eichmann, supra note 14, § 83 (deported to Minsk and Riga).
108Eichmann, supra note 14, § 107 (deported to the Government General).
109Eichmann, supra note 14, § 108 (deported to the ‘eastern areas of Germany’).
110Eichmann, supra note 14, § 109 (deported ‘across the Italian border’).
111Greifelt and others, supra note 54, at 130–131 (deported to unoccupied France).
and others were expelled from their home territories without any justification. Prior
to 1975, various convictions were entered for displacement without legal title as
deportation, a crime against humanity.112
11.3.3.5 Displacement for an Unlawful Purpose
In addition to displacement without legal title, most World War II era deportation
convictions rested, at least in part, on displacement, both across international
boundaries and internally within a single territory,113 to extermination,114 forced
112Von Weizsaecker and others, supra note 54, at 822 (Berger), 832 (Koerner); Göring and oth-
ers, supra note 14, at 339–341 (Bormann); Milch and others, supra note 14, at 791 (Milch con-
victed for deportation of Hungarian, Romanian, Polish and Russian nationals from their home
territories); von Leeb and others, supra note 54, at 603–614 (Reinhardt); Greifelt and others,
supra note 54, at 140–1 (Lorenz and Brueckner); Eichmann, supra note 14, §§ 67, 72, 185, 210,
244(5), 244(8–12).
113Indeed, most courts did not even make findings as to the origin or destination of a deportation for an
unlawful purpose—it was not the crossing of a border that made such displacements criminal. e.g. von
Weizsaecker and others, supra note 54, at 471, 478, 481, 541, 629, 654, 663 (without reference or indica-
tion as to whether a forced transfer was across an international border, the Ministries Tribunal declared
that ‘[t]here is no question but that the deportations were carried out and that the majority of these unfor-
tunate people met their deaths in German extermination camps or in the slave-labour enterprises con-
ducted by the SS’), 859; Supplement Judgment, Pohl and others (Case No. 4, ‘The Pohl Case’), Military
Tribunal II, 11 August 1948, in Trials of War Criminals Before the Nuernberg Military Tribunals Under
Control Council Law No. 10, Vol. V (Washington, DC: U.S. Government Printing Office, 1949) at 1175
(Pohl was convicted of crimes against humanity and war crimes, in part, for ‘the displacement and trans-
fer of the entire Jewish population of the [Warsaw] ghetto’ without reference as to any destination); von
Weizsaecker and others, supra note 54, Powers Dissent, at 923. The Ministries Chamber required knowl-
edge of the purpose of a deportation, not knowledge that such movement would be across any boundary.
von Weizsaecker and others, supra note 54, at 473. Moreover, those deported to concentration camps,
regardless of their locale, were ‘no less deportees’ than those deported elsewhere. Krupp and others,
supra note 14, at 1433–1434. See also, Naletilić and Martinović, supra note 12, Dissenting Opinion of
Judge Schomburg, § 12 (considering that ‘The Nuremberg Judgment did not preoccupy itself with a
meticulous analysis of borderlines and especially refrained from discussing the legal status of territories
which had been annexed, occupied, or had in any other way succumbed to German rule in relation to
“Germany proper” ’); Stakić, supra note 5, Dissenting Opinion of Judge Shahabuddeen, §§ 29–32.
114Von Weizsaecker and others, supra note 54, at 645–646 (Stuckart), 652–653 (Veesenmayor), 860
(Lammers); Göring and others, supra note 14, at 287–288 (Ribbentrop ordered and facilitated ‘depor-
tation of Jews to the East’), 252–253 (Kaltenbrunner was head of an organization which deported Jews
to ‘extermination institutions’), 300–301 (Frick was responsible for deportation of thousands of Jews
from Terezin to extermination), 302–304 (Streicher convicted for his incitement of the final solution
including deportation to extermination), 318–320 (von Schirach convicted in part for deportation of
Austrian Jews to extermination in the Government General and Germany), 328–330 (Seyss-Inquart
convicted for deporting Jews and political opponents to extermination); Krupp and others, supra note
14, at 1449 (Krupp, Loeser, Houdremont, Mueller, Janssen, Ihn, Eberhardt, Korschan, von Beulow,
Lehmann and Kupke); Eichmann, supra note 14, §§ 179, 210–211; Judgment, Becker and others,
Permanent Military Tribunal at Lyon, 17 July 1947, reported in Law Reports of Trials of War Criminals,
Vol. VII (United Nations War Crimes Commission, London: 1948), at 67, 70.
308 N. Quick
labour,115 resettlement for purposes of “Germanization”,116 or other unlawful

purpose.117 Any displacement resulting in acts that shock the conscience is crimi-
nal per se.118 Indeed, even if a displacement is otherwise legal, it becomes crimi-
nal if a defendant knows that the end result of such allocation is forced labour or
some other criminal purpose.119 Such displacement, however, is a distinct crime
115Von Weizsaecker and others, supra note 54, at 660 (Veesenmayor), 843–844 (Pleiger), 849–
850 (Kehrl); Göring and others, supra note 14, at 281–282 (Göring), 289–291 (Keitel), 295–
296 (Rosenberg), 296–298 (Frank for his part in the deportation to Germany of over a million
Polish labourers), 305–307 (Funk for his role in deportation of workers for use in German indus-
try), 320–322 (Sauckel), 331–333 (Speer); von Leeb and others, supra note 54, at 569–77 (von
Kuechler), 618 (von Salmuth), 628–629 (Hollidt), 679–680 (Warlimont); Pohl and others, supra
note 52, at 984–987, 992 (Pohl), 997 (Frank), 1007–1010 (Loerner convicted for the ‘snatch[ing
of slaves] from their homelands and herd[ing them] into concentration camps to further the
German war effort’), 1015 (Tschentscher); Pohl and others, Supplement Judgment, supra note
113, at 1174–1175; List and others, supra note 27, at 1305 (von Leyser); Krupp and others,
supra note 14, at 1449 (Krupp, Loeser, Houdremont, Mueller, Janssen, Ihn, Eberhardt, Korschan,
von Beulow, Lehmann and Kupke); Krauch and others, supra note 54, at 1189 (Krauch); Krauch
and others, supra note 54, Hebert Dissent, at 1307 (noting that Krauch, ter Meer, Ambros,
Buetefisch, Duerrfeld were convicted ‘primarily for the initiative shown in the procurement of
slave labor’); Eichmann, supra note 14, § 208; Buhler, supra note 16, at 37, 39.
116Göring and others, supra note 14, at 103 (Göring), 334–336 (von Neurath convicted for the
expulsion of Czech intelligentsia and others opposed to Germanization), 339–341 (Bormann

convicted for his role in the ‘forced resettlement and denationalization of persons in the occu-
pied countries’); Greifelt and others, supra note 54, at 140–141, 144, 155, 159–162 (Lorenz,
Brueckner, Greifelt, Cruetz, Hoffman, Schwalm, Hildebrandt and Huebner convicted for evacu-
ation and resettlement program, including internal displacement); Eichmann, supra note 14,
§ 213; Becker and others, supra note 114, at 71 (Pitz convicted for aiding and assisting in the
deportation of those unwilling to become German to other parts of Germany); Greiser, supra note
16, at 70–74 (setting out the charges including resettlement operations and deportations of Polish
children and Polish clergy), 104 (finding Greiser guilty under all counts).
117Pohl and others, supra note 52, at 985–987, 992; Pohl and others, Supplement Judgment,
supra note 113, at 1174–1175 (Pohl convicted of deportations to medical experimentation);
Greiser, supra note 16, at 71.
118Von Weizsaecker and others, supra note 54, at 339 (‘Measures which result in murder, ill-treat-
ment, enslavement, and other inhumane acts perpetrated on prisoners of war, deportation, exter-
mination, enslavement, and persecution on political, racial and religious ground, and plunder and
spoliation of public and private property are acts which shock the conscience of every decent
man. These are criminal per se’); Pohl and others, supra note 52, at 968.
119Krauch and others, supra note 54, at 1188; Pohl and others, supra note 52, at 1059 (Bobermin
acquitted of the ‘forced movement’ of Hungarian Jews partially on the defence that he did
not know that the Jews were being consigned to concentration camps or extermination cent-
ers); Milch and others, supra note 14, Musmanno Concurrence, at 850 (‘it does not follow that
because military necessity unintentionally victimizes a civilian population, political domination
may strip them of their civil rights and subject to intentional torture and possible death’).
from the criminal purpose,120 although knowledge of the criminal purpose and
participation may also make an accused responsible for the resulting crimes.121
Multiple crimes may often be part of one larger criminal program or scheme.122
(i) Extermination
Eventually, extermination became the ‘Final Solution’.123 Accordingly, Jews were
no longer allowed to emigrate ‘lest some thousands … might escape the general
slaughter.’124 Yet, ‘it was not easy to kill millions, dispersed amongst the general
population. The victims had to be found and isolated. Not every place is conveni-
ent for killing. Not everywhere will the population submit to the killing of their
neighbors. Therefore, the victims had to be transferred to suitable places.’125 So
Jews, Gypsies126 and other ‘useless eaters’127 were deported to concentration
camps in the East, consisting of Poland, the Baltic countries, and occupied
Russia.128 It was the ‘valley of death in which millions of Jews were slaughtered
120Milch and others, supra note 14, Phillips Concurrence, at 865–866 (noting that the war crimes
of deportation to slave labour and enslavement, from which the crimes against humanity are
derived, are ‘separate crimes and different types of crimes’); Krupp and others, supra note 14, at
1432–1433; Krauch and others, supra note 54, at 1187; Eichmann, supra note 14, §§ 141 (‘The
legal and moral responsibility of a person who delivers the victim to his death is, in our opinion,
no less, and maybe even greater, than the liability of the one who does the victim to death’), 197
(distinguishing the crime of ‘he who hunted down the victims and deported them to a concentra-
tion camp’ from one who forced them to labour).
121Krauch and others, supra note 54, at 1190.
122Krauch and others, supra note 54, at 1174 (the German slave labour program involved the
crimes against humanity of enslavement, deportation, and/or unlawful imprisonment); von

Weizsaecker and others, supra note 54, at 645–646 (deportation was a ‘component part of the
program which was intended to and did result in the almost total extermination of Jews’), 660
(deportation was part of the larger slave labour program).
123von Weizsaecker and others, supra note 54, at 472 (Jews were ‘herded into camps of death’),
487 (means other than deportation for extermination were dismissed as impracticable), 503, 645;
Göring and others, supra note 14, at 235; Eichmann, supra note 14, §§ 27 (quoting the German
Supreme Federal Tribunal finding that the object of the expulsions was death of the deportees),
68 (deportation was always the method used ‘to get rid of the Jews by all means’), 79, 95, 110
(extermination of Reich and Protectorate Jews was the priority), 163(b).
124Eichmann, supra note 14, § 176. See also, Eichmann, supra note 14, §§ 80, 105 (Croatian
Jews were evacuated early to prevent their emigration to Palestine where they had been granted
immigration permits), 163(b).
127Göring and others, supra note 14, at 301 (‘useless eaters’ included the aged, insane, and
incurable).
128Von Weizsaecker and others, supra note 54, at 655; Pohl and others, supra note 52, at 969;
Krupp and others, supra note 14, at 1433-4; Eichmann, supra note 14, § 119; Pohl and others,
supra note 52, Musmanno Concurrence, at 1120.
310 N. Quick
by the order of Hitler.’129 In time, ‘evacuation to the East’ became synonymous

with extermination.130
Wherever ‘the “German boot” had landed,’ the Jews were deported to the exter-
mination camps in the East.131 For example, Greek, French, Belgian, Dutch,132
Norwegian,133 Slovakian,134 German,135 and Hungarian Jews were ‘evacuated’,
‘deported’, and ‘transported’ to Auschwitz (the notorious extermination camp).136
Meanwhile, Slovakian137 and Romanian138 Jews, as well as Reich concentration
camp inmates,139 among others, were deported to extermination in the Lublin area.
There were also internal displacements for purposes of extermination. ‘[T]his
‘war’ took the form of deporting helpless people to be slaughtered by citizens of
the state in which they lived, without any reason save that of gratuitous hatred and
without any aim save that of their extermination.’140 Two extermination camps

130Eichmann, supra note 14, § 87; von Weizsaecker and others, supra note 54, at 469–470, 516.
131von Weizsaecker and others, supra note 54, at 475, 654 (‘Men, women, children, the babes
in arms, school children, the aged, the invalids were deported to slave labor and to death’); Pohl
and others, supra note 52, Musmanno Concurrence, at 1120 (‘The following will be evacu-
ated and transported to the East: Jews of French nationality, Jews who are citizens of the for-
mer Czechoslovakia (now Bohemia, Moravia and Slovakia), Poland, Norway, Holland, Belgium,
Luxembourg, Yugoslavia (Serbia and Croatia), Greece, Baltic States (Lithuania, Latvia, Estonia),
Albania, Italy, and all stateless Jews (including those who have emigrated from Reich territo-
ries)’); Goeth, supra note 83, at 3 (wholesale removal of the Jews to death camps began in 1942);
Eichmann, supra note 14, §§ 105–106, 117, 223 (among those ‘evacuated to the East’ were
Croatian, Serbian, Hungarian, and German Jews).
132Von Weizsaecker and others, supra note 54, at 475, 496, 499, 500, 502; Krupp and others,
supra note 14, at 1415; Eichmann, supra note 14, §§ 100, 101 (Dutch Jews were “put on the
march” to Auschwitz).
134Eichmann, supra note 14, § 104(b).
135Von Weizsaecker and others, supra note 54, at 474 (noting that those deported to Auschwitz
were “put in the ovens”); Pohl and others, supra note 52, at 1126.
136Von Weizsaecker and others, supra note 54, at 655; Eichmann, supra note 14, §§ 111, 112,
116(b) (noting the accelerated pace at which Hungarian Jews were being deported in order to
ensure their extermination in the final days of the war).
137Eichmann, supra note 14, § 104(b).
139Pohl and others, supra note 52, at 1126.
140Eichmann, supra note 14, § 217. See also, Pohl and others, supra note 52, Musmanno
Concurrence, at 1146 (the first goal of Operation Reinhardt was the removal of the Jews from
Poland to the Polish extermination camps).
operated in the Polish territories annexed to the Reich: Auschwitz and

Chelmno.141 Additionally, Radogoszcz (near Lodz in the annexed territories),
although not technically an extermination camp, was concerned ‘with its normal
business of killing.’142 Four other extermination camps were set up in the
Government General area of Poland: Treblinka, Majdenak (on the outskirts of
Lublin), Sobibor (east of Lublin), and Belzec (in Eastern Galicia).143 Jews were
deported from the Reich and annexed Polish territories to extermination camps
within the annexed Polish territories.144 Other Jews were deported from the
Government General of Poland to extermination camps located within the
141Buhler, supra note 16, at 23 (‘After the occupation of Poland and her illegal and arbitrary
division by Germany into two separate parts, i.e., the Western Territory which was incorpo-
rated into Germany, and the central and southern territories of which were the so-called General
Government’); Eichmann, supra note 14, §§ 122 (Chelmno extermination camp was located in
Warthe District), 132 (‘They annexed to the Reich vast areas of western and northern Poland;
the areas previously known as the Polish Corridor, namely western Prussia, the Poznan district
and additional parts of western Poland, including Lodz (Litzmannstadt), which were known as
the Warthe district (Warthegau); and all the area which was Upper Silesia before World War I.
But, in addition, they also annexed nearby stretches in western Poland, so that Auschwitz itself
came within the Reich; and parts of Poland to the north, bordering on East Prussia and including
Zichenau (Ciechanow) and Bialystok’).
143Eichmann, supra note 14, §§ 123, 126, 132 (‘In what was left of Poland up to the demarcation
line with Soviet Russia in the East, the Generalgouvernement district was set up, under the rule
of Hans Frank, who was given extensive administrative autonomy. After additional conquests,
which came with the outbreak of the war with Russia, eastern Galicia and Lvov were annexed to
the General government area’); Buhler, supra note 16, at 23 (the Government General included
central and south Poland, including the cities of Krakow, Lublin and Warsaw).
144Eichmann, supra note 14, §§ 122 (Chelmno extermination camp was located in Warthe
District), 127 (Jews from the Reich and annexed territories brought for extermination at
Auschwitz), 137, 141, 198 (Bialostyk Jews ‘transported’ to Auschwitz); Greiser, supra note 16, at
91 (Poles in the annexed territories were first sent to transit camps and then some were deported
to extermination at Auschwitz or Chelmno), 92 (Poles from the annexed territories such as
Lowicz and Skierniewice were transported to Radogoszcz near Lodz), 95 (from the annexed ter-
ritories, including from Lodz, Jews were deported to Chelmno and Auschwitz for extermination).
It is notable that the Government General and annexed territories were viewed by the Germans as
part of the Reich. See von Weizsaecker and others, supra note 54, at 644.
312 N. Quick
Government General.145 Still other Jews were deported from the annexed Polish
territories to the Government General or vice versa.146
(ii) Forced Labour
The crime against humanity of deportation includes civilian displacement from the
comforts and protections of an area of residence for purposes of forced labour. ‘It
was wartime. Labor was needed. Manpower should not be wasted.’147 Therefore,
Jews, Poles and others were deported to Germany148 or expelled to ‘the East’ to
‘become the slaves of the Greater German World Empire.’149
Some 5,000,000 ‘workers’ from the Protectorate, occupied territories, and pup-
pet governments were deported to Germany.150 Other able Jews from the occupied
145Eichmann, supra note 14, §§ 123 (Jews ‘from Warsaw and other cities in Central Poland,
from Bialystok, Grodno and Volkovysk’ were deported for extermination at Treblinka), 124 (vic-
tims deported to the Belzec extermination camp in Southeastern Poland were from the same
region), 126 (Polish Jews were ‘brought’ for extermination at Majdenak), 137, 141, 198 (Jews in
the Government General were ‘transported’ by rail to Polish extermination camps including from
Warsaw to Treblinka, from Przemysl and Lemberg to Belzec); Pohl and others, supra note 52, at
985; Pohl and others, Supplement Judgment, supra note 113, at 1174–1175 (Jews ‘deported’ from
Warsaw to Lublin and other extermination camps); Goeth, supra note 83, at 3 (Jews evacuated from
Tarnow to Belzec). It is notable that the Government General and annexed territories were both
viewed by the Germans as part of the Reich. von Weizsaecker and others, supra note 54, at 644.
146Eichmann, supra note 14, §§ 125 (Jews from eastern Poland and in German-occupied Russia
brought for extermination at Sobibor), 127 (Jews from the Government General were ‘brought’
for extermination at Auschwitz), 137, 141, 198 (Jews from the Government General ‘trans-
ported’ to Auschwitz); Goeth, supra note 83, at 3 (Jews evacuated from Krakow and Tarnow to
Auschwitz). It is notable that the Government General and annexed territories were both viewed
by the Germans as part of the Reich. Von Weizsaecker and others, supra note 54, at 644.
148Pohl and others, supra note 52, at 977 (the purpose of Action Reinhardt ‘was to gather into
the Reich all the Jewish manpower and wealth which could be reached’), 1058–1059; Krupp and
others, supra note 14, at 1417.
149Buhler, supra note 16, at 34; Eichmann, supra note 14, §§ 87, 128, 144; List and others, supra
note 27, at 1256 (Jews, Gypsies and others were deported to Germany or ‘other points’ for slave
labour or based on their race or religion).
150Göring and others, supra note 14, at 227–228, 238; von Weizsaecker and others, supra note
54, at 518 (Danish Jews to be sent to Germany), 579, (Poles and Jews were evacuated for forced
labour in the Reich), 795, 798, 811–813, 816, 822 (‘concerning the forcible deportation and mis-
treatment of Ukrainians who were being shipped to the Reich for slave labor’), 823–824, 828,
832 (Czechs to Germany), 839–840, 843, 847–848; von Leeb and others, supra note 54, at 540
(‘Hundreds of thousands of the helpless population of the occupied territories were transferred
to the Reich under this program of labor recruitment’); Pohl and others, supra note 52, at 970,
977, 1058–1059; Krauch and others, supra note 54, at 1173; Krupp and others, supra note 14,
at 1398 (Belgian and Dutch workers deported to Germany), 1417; Altstoetter and others, supra
note 14, at 1062 (Night and Fog prisoners were deported to Germany and forced to labour in
the munition plants of the enemy power); Greifelt and others, supra note 54, at 127 (Poles were
deported to the Reich for forced labour); Buhler, supra note 16, at 31, 35 (Poles were deported to
Germany for forced labour); Eichmann, supra note 14, §§ 208–209 (Poles deported to the Reich
for labour).
territories were forced to labour at various concentration camps prior to extermina-

tion.151 Moreover, civilians were ‘deported’ to, or ‘evacuated’ for, forced labour
within, inter alia, Dutch,152 Russian,153 Polish,154 German,155 and Latvian156 terri-
torial boundaries. Destruction of villages and the carrying away of the resident
civilians ‘whenever possible, to be used later as manpower’ was also recognized as
a form of deportation.157 Criminal deportation also protected those displaced, but
forbidden to emigrate from a given territory so that they would be available for
forced labour in the future.158
(iii) Resettlement
Deportations ‘were part of a plan to get rid of whole native populations by expul-
sion and annihilation, in order that their territory could be used for colonization by
Germans’.159 These internal and external displacements were not part of ‘innocent
151Von Weizsaecker and others, supra note 54, at 508, 654, 859; Eichmann, supra note 14, §§
104(a), 104(b), 110–112, 116(a) (the Jews put to labour at Auschwitz or elsewhere were ‘put on
ice’ until they died as a result of the hard labour, or were exterminated), 144–146.
152Pohl and others, supra note 52, Musmanno Concurrence, at 1122–1123 (deported to work at a
diamond-cutting factory in a concentration camp in Hertogenbosch).

153Von Leeb and others, supra note 54, at 573, 606 (Russian villagers evacuated for forced labour
in other regions).
154Krauch and others, supra note 54, at 1185–1186 (Poles were deported to Auschwitz for
forced labour); Pohl and others, supra note 52, at 985; Pohl and others, Supplement Judgment,
supra note 113, at 1174–1175 (Jews from the Warsaw Ghetto were deported to forced labour in
Lublin); Greifelt and others, supra note 54, at 127 (Poles deported to the Reich and Government
General to labour in factories, agriculture and other enterprises); Eichmann, supra note 14, §§
208–209 (Poles were deported to forced seasonal labour as ‘eternal wanderers’, to forced labour
at Auschwitz, and to ‘pension villages’); Greiser, supra note 16, at 91 (Poles in the territories
annexed to Germany were sent for forced labour in Germany and Auschwitz).
155Altstoetter and others, supra note 14, at 1080 (German Jews were ‘herded into concentration
camps within and without Germany’).

156Von Weizsaecker and others, supra note 54, at 474 (Latvian and German Jews sent to a
Latvian concentration camp).

157Von Leeb and others, supra note 54, at 573–574, 576 (villages were destroyed and evacuated,
sometimes to the area between the advanced front line and ‘Panther position’ within the same
territory to territories “west of the Panther”); List and others, supra note 27, at 1303–1305 (‘The
more serious charge is that pertaining to the evacuation of large areas within the corps command
for the purpose of conscripting the physically fit into the Croatian military units and of conscript-
ing others for compulsory labor service’).
158Greifelt and others, supra note 54, at 158.
159Göring and others, supra note 14, at 237; von Weizsaecker and others, supra note 54, at 634–
635 (resettlement occurred throughout Poland, the Ukraine, Latvia, Lithuania, White Ruthenia,
Estonia and the Crimea); Greifelt and others, supra, note 56, at 92–93 (all who could not be
Germanized were deported); Greiser, supra note 16, at 97; Eichmann, supra note 14, § 73 (per-
ceived threats to the Reich were to be eliminated or neutralized by being replaced with Germans
or those of German descent).
314 N. Quick
operation[s] of ‘resettlement.’ This was plain and simple expulsion, accompanied

by degradation of the people, and with malicious intent, especially against the edu-
cated class.’160 Accordingly, displacement for purposes of “Germanization”,
whether or not also for other unlawful purposes such as forced labour or extermi-
nation and whether or not done internally or externally, supported various convic-
tions for deportation as a crime against humanity.161 Moreover, following World
War II, various international instruments,162 as well as human rights courts,163
condemned resettlement similar to that undertaken by the Germans during World
War II.
Displacement for purposes of resettlement and ‘Germanization’ were often
across de facto or de jure boundaries. Children and other foreign nationals of ‘val-
uable blood’164 were ‘sent’ for ‘Germanization’ in the Reich.165 Others of ‘valua-
ble blood’ were resettled in the Protectorate and occupied countries.166 In turn, a
corresponding number of residents in these resettlement zones would have to be
160Eichmann, supra note 14, §§ 207–208 (rejecting Defence arguments that resettlement of Poles
within Poland was not a crime: ‘This was plain and simple expulsion, accompanied by degrada-
tion of the people, and with malicious intent, especially against the educated class’).
161Von Weizsaecker and others, supra note 54, at 633, 634 (that the resettlement ‘in the
Government General contrary to international law and that the circumstances of their settlement
and evacuation of Polish nationals was a crime against humanity, we have no doubt’); Greifelt
and others, supra note 54, at 106.
162Question of Territories under Portuguese Administration, A/RES/2184(XXI), 12 December
1966, § 3 (‘condemns, as a crime against humanity, the policy of the Government of Portugal,
which violates the economic and political rights of the indigenous population by the settle-
ment of foreign immigrants in the Territories and by the exporting of African workers to South
Africa’); Articles II(c) (‘Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part’) and II(e) (‘Forcibly transferring children of the
group to another group’) Genocide Convention; Article II(d) Apartheid Convention (forbidding
measures ‘expropriat[ing] landed property belonging to a racial group or groups or to members
thereof’).
163Indeed, the European Court of Human Rights, considering expulsions during the 1974 inva-
sion of Cyprus by Turkey, determined that ‘transportation of Greek Cypriots to other places, in
particular the excursions within the territory controlled by the Turkish army, and the deportation
of Greek Cypriots to the demarcation line’ were an interference with the right to private life,
including the rights of family life, to return to one’s home and possessions, and to property. See
Cyprus v. Turkey App no 6780/74 (ECtHR, 1997); Cyprus v. Turkey App no 6950/75 (ECtHR,
1997); Cyprus v. Turkey App no 25781 (ECtHR, 1997).
164Greifelt and others, supra note 54, at 136, 139, 140.
165Von Weizsaecker and others, supra note 54, at 598, 636; Greifelt and others, supra note 54, at
93–94, 106–107, 132; Eichmann, supra note 14, §§ 208–209 (Poles sent to Germany).
166Greifelt and others, supra note 54, at 131 (ethnic Germans from Russia, Bulgaria and Serbia
were transported to Poland for resettlement).

expelled.167 Austrian Jews,168 Slovakian Jews,169 uncooperative French civil-

ians,170 Polish clergy,171 and other ‘threats’172 were forcefully deported from their
home territories and ‘ethnic Germans’ settled in their place.173
Yet, this unlawful purpose was not limited to cross-border displacements.
German resettlement resulted in the deportation of Poles from certain regions of
Poland to other regions of Poland, although not always to any definite destina-
tion.174 Further, civilians were displaced and resettled within French175 and
Lithuanian176 territorial boundaries.
(iv) Other Unlawful Purposes
As recognized in the post-World War II jurisprudence, many deportations, includ-
ing forced emigrations and those done for purposes of extermination, forced labour
and resettlement, were also done for purposes of terrorism177 and persecution: ‘the
167Greifelt and others, supra note 54, at 141.

168Eichmann, supra note 14, § 83 (deported to Poland in order to make way for Aryans displaced
in air raids).
169Eichmann, supra note 14, §§ 104(a), 104(b) (deported to Poland ‘making room for
Aryanization’).
170Becker and others, supra note 114, at 71 (French civilians who refused Germanization were
deported to Germany).
172Buhler, supra note 16, at 28 (Special Courts with jurisdiction over Jews and Poles regularly
imposed deportation without trial: the chief purpose was strengthening of ‘Germanism’).
173Von Weizsaecker and others, supra note 54, at 468.
174Von Weizsaecker and others, supra note 54, at 579, 598; Greifelt and others, supra note 54,
at 94 (‘A considerable part of the racially valuable groups of the Polish people, who, on account
of national reasons are not suitable for Germanization, will have to be deported to the rest of
Poland to be resettled’), 106–107, 126; Krauch and others, supra note 54, at 1182, 1191 (Jews
were evacuated to make room for Auschwitz construction workers and staff); Eichmann, supra
note 14, §§ 73, 75, 207–208 (Poles were transferred from Warthe district to the Government
General and from the Zamosc district to the West. ‘The aim is: The Pole is to remain a sea-
sonal laborer—the eternal wanderer. His permanent place of residence must be in the vicinity of
Cracow’); Greiser, supra note 16, at 86–88 (Poles deported from the annexed Polish territories
to the Government General and ‘and turned out there in any chance place and left to their fate’).
175Becker and others, supra note 114, at 71 (French citizens of Lorraine displaced to other
French regions if they were unwilling to become German).

176Greifelt and others, supra note 54, at 130 (Lithuanian peasants were displaced and resettled in
Lithuania).
177Individual criminal responsibility for terrorism as a war crime first emerged with the
Convention for the Prevention and Punishment of Terrorism, adopted by the International
Conference on the Repression of Terrorism, 19 November 1937 and accompanying Convention
for the Creation of an International Criminal Court, adopted by the International Conference on
the Repression of Terrorism in Geneva, 16 November 1937. See also, London Resolution, Allied
Governments, 13 January 1942 (condemning the ‘regime of terror characterized by amongst
other things by […] mass expulsions’ and resolving to punish ‘those guilty of or responsible for
the crimes whether they have ordered them, perpetrated them, or participated in them’).
316 N. Quick
accepted solution to any and all opposition to the German will.’178 Indeed, secret
deportations to slave labour during the ‘Night and Fog program’ ‘created an atmos-
phere of constant fear and anxiety amongst relatives, friends and the popula-
tion.’179 Other deportations were often done for no other reason than race or
religion180: Jews of German and foreign nationality were compelled to emigrate as
‘pauper emigrés’ or expelled across borders181; Jews and Gypsies were transported
to Auschwitz and Ravensbrueck for experimental sterilization182; Jews were
deported from Auschwitz to Natzweiler camp outside Strasbourg for ‘the establish-
ment of a collection of skeletons in the anatomy institute183;’ and still others were
deported to Terezin—the propaganda camp—in order ‘to keep up appearances for
the outside world.’184 Overall, deportation was ‘one of the most notorious means’
178List and others, supra note 27, at 1255. See also, Article II(c) (‘Deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction in whole or in part’)
and II(e) (‘Forcibly transferring children of the group to another group’) Genocide Convention;
Article II Apartheid Convention (the crime of apartheid applies to ‘infringement of [a group’s]
freedom or dignity’; Article 45(4) Geneva Convention IV (forbidding transfer to a territory where
a person may face persecution).
180List and others, supra note 27, at 1256. Talk of a ‘Final Solution’ to the ‘Jewish Question’
was even initially based on the forced emigration of all Jews of the Reich and Protectorate to
Madagascar. Von Weizsaecker and others, supra note 54, at 491; von Weizsaecker and others,
supra note 54, Powers Dissent, at 909; Pohl and others, supra note 52, Musmanno Concurrence,
at 1117; Greifelt and others, supra note 54, at 96 (referring to possible emigration of Jews to
Africa or some other colony); Eichmann, supra note 14, § 76.
181Von Weizsaecker and others, supra note 54, at 468, 471, 481, 495, 503, 598, 640, 645; Göring
and others, supra note 14, at 265, 328, 343; Eichmann, supra note 14, §§ 57 (in 1938, Jews of
Polish nationality living in German cities were taken to the Polish border and ‘cruelly expelled
and forced to cross the border’), 58 (the ‘promotion’ of emigration, by coercive means, eventu-
ally became ‘expulsion’ of Jews from Germany and the Protectorate), 64 (‘emigration during the
first stage, i.e., overseas’), 70, 72, 77 (deported to unoccupied France), 83 (deported to Lodz),
83(d), 90 (‘evacuated’ to the Government General), 91 (deported to Lublin). Sometimes they
were sent to transit camps, ‘the first step towards expulsion across lines’. Eichmann, supra note
14, §§ 70, 72. Talk of a ‘Final Solution’ to the ‘Jewish Question’ was even initially based on the
forced emigration of all Jews of the Reich and Protectorate to Madagascar. von Weizsaecker and
others, supra note 54, at 491; von Weizsaecker and others, supra note 54, Powers Dissent, at 909;
Pohl and others, supra note 52, Musmanno Concurrence, at 1117; Greifelt and others, supra note
54, at 96 (referring to possible emigration of Jews to Africa or some other colony); Eichmann,
184Eichmann, supra note 14, §§ 103, 150–151 (foreign diplomats, Red Cross representatives and
others were taken to Terezin where those with a ‘more or less human appearance’ were put on
display).
of terrorising and persecuting the people.185 In turn, displacements for purposes of

terror, intimidation or persecution were encompassed within deportation and perse-
cution, crimes against humanity, prior to 1975.186
11.3.3.6 Displacement Under Inhumane Conditions
No displacement may be done under inhumane conditions.187 Various convictions

for deportation as a crime against humanity in the post-World War II jurisprudence
were based on internal and international displacement conducted under inhumane
conditions.188 Displacement under inhumane conditions often also served the end
purpose of the displacement itself. Indeed, the weak fell along the way and only
those fit to labour arrived at the concentration camps.189 Moreover, those who sur-
vived the deportation itself were duly terrorised and intimidated.
185Altstoetter and others, supra note 14, at 1033; von Leeb and others, supra note 54, at
612–614.
186von Leeb and others, supra note 54, at 612–614; Sakai, Chinese War Crimes Military Tribunal
of the Ministry of National Defence, Nanking, 29 August 1946, reported in Law Reports of Trials
of War Criminals, Vol. III (United Nations War Crimes Commission, London: 1948), at 2; ‘The
Case of General Yamashita’, Memorandum for the Record, United States General Headquarters,
Supreme Commander for the Allied Powers, 22 November 1949, at 51 (Sakai’s conviction for
deportation as a crime against humanity was grounded in the eviction of civilians from their
homes and the firing of seven hundred houses, among other atrocities); Eichmann, supra note
14, §§ 67, 72, 185 (otherwise lawful deportations by a sovereign were criminal based on the
persecutory motive); Buhler, supra note 16, at 37, 39; Greiser, supra note 16, at 113-4 (Greiser
convicted of crimes against humanity for his part in displacement motived towards the ‘com-
plete destruction of Polish culture and political thought, in other words by physical and spiritual
genocide’). Note that persecution is a crime against humanity in its own right encompassing any
deportation done with such specific intent. Nevertheless, deportation for purposes of persecution
was acknowledged as distinct crime. The persecutory purpose, like any unlawful purpose, was
indicative of malicious intent. See Eichmann, supra note 14, §§ 207–208. See also, Krnojelac,
187Milch and others, supra note 14, Phillips Concurrence, at 865 (‘This flows from the estab-
lished principle of law that an otherwise permissible act becomes a crime when carried out in a
criminal manner’); Krupp and others, supra note 14, at 1432-3.
188Eichmann, supra note 14, §§ 74, 186; Becker and others, supra note 114, at 67, 70; Goeth,
supra note 83, at 1–4 (Goeth convicted for deportations under inhumane conditions to death and
labour camps within the Government General).
189Eichmann, supra note 14, § 112; Goeth, supra note 83, at 3 (‘It is no exaggeration to say that
the very process of transporting people under such conditions was the first stage in the extermi-
nation of deportees’).
318 N. Quick
Deportations to Germany from the Protectorate and occupied territories or between

the occupied territories were often under inhumane conditions. Displacements were
on foot or in overcrowded train cars for many days, in rain, snow and sub-zero tem-
peratures without adequate food, clothing, sleep or medicine.190
Further, victims of internal displacements were also transported in freight trains
‘crammed to the top with dead bodies,’ or forced to walk long distances, in freezing
temperatures, without the ability to ‘satisfy physiological needs.’191 Many perished.192
190Von Weizsaecker and others, supra note 54, at 599 (German Jews deported to eastern Poland
‘who had overcoats were deprived of them; that they were not allowed to take any cash, food,
beds, or household articles; and all arrived at Lublin with only the clothing they wore; that
men, women, and children were compelled to march from Lublin to the villages where they
were to be quartered, over roads deep with snow and at temperatures of minus 22 Centigrade;
that many froze to death, and others, including children, were so badly frozen that it was nec-
essary to amputate their limbs’), 659 (Hungarian Jews ‘mainly women, were forced to march
on the highways leading from Budapest to the German border in rain and snow, without food.
Thousands of them died on the way or were shot because they could not continue’); Milch and
others, supra note 14, Musmanno Concurrence, at 801 (Workers ‘recruited’ were not given time
to collect belongings before abduction and thus ‘arrived at the collecting center without adequate
shoes or other adequate clothing for the long and torturing journey ahead’); Milch and others,
supra note 14, Phillips Concurrence, at 865, 871 (‘Workers were crowded into box cars without
food or water or toilet facilities [and] transported great distances’); Pohl and others, supra note
52, Musmanno Concurrence, at 1,126 (‘Transport was the name given to movement whether the
travel was by vehicle, or on foot. When travel was by land, as many as 130 persons were placed
in cattle or freight cars, and in wintertime no extra clothing was allowed for the journey. In one
group of 4,500 men and 500 women who moved from Monowitz to Nordhausen in January 1945,
a trip lasting 8 days, only twice were the prisoners given food which consisted of one-half loaf
of bread and 106 grams of meat. Space was so tight that the weak and sick were smothered by
their own comrades’), 1,154; Krupp and others, supra note 14, at 1428–1429; Becker and oth-
ers, supra note 114, at 67, 70; Eichmann, supra note 14, §§ 84(d) (Jews deported on an unheated
train from Dusseldorf to Riga—it was 12 degrees below zero on the night they arrived), 112
(Hungarian Jews could ‘be packed like salt herrings’ in a single freight car, more than 100 to
a car without food or water for three days, as Germans needed strong people to labour. ‘Those
who cannot hold will fall. Fashionable ladies are not needed there in Germany.’ Further, ‘Jews
from Carpatho-Russia were blessed with many children. These children, therefore, did not need
so much air and so much room’); 115 (Jews were marched from Budapest to the Austrian frontier
after Allied bombing destroyed the rail lines. Their valuables, clothes, blankets, and provisions
were stolen and they were marched for 7–8 days, sleeping in pigsties or in the open without med-
ical help); 149 (concerning death marches in cold and snow); 154 (Victims expelled and deported
were transported as if they were ‘cattle or worse—sealed freight trucks, in intense cold or blazing
heat, without food supplies (except what evacuees brought along with them), a scant supply of
drinking water, and at times no water at all for days on end, the most terrible sanitary conditions
(one pail per truck to take care of physiological needs), not less than 70–100 people and even
more in each truck’; transports were conducted with increasing harshness, for example beginning
with regulations on the maximum number of Jews (1,000) transported in a train car which were
replaced with regulations on the minimum number of Jews (1,000) transported in one car).
191Examples of internal displacements under inhumane conditions within the boundaries of
Poland included those from Tarnow and Zamosoc to Auschwitz, the annexed territories to the
Government General, and Stettin to Lublin. Eichmann, supra note 14, §§ 73, 75, 209; Greiser,
supra note 16, at 3, 87.
192Eichmann, supra note 14, §§ 75, 209; Greiser, supra note 16, at 3, 87.
11.4 Conclusion
The ECCC Trial Chamber, in its Case 002/01 judgment, affirmed the criminal
nature of any forced transfer, recognizing the devastating consequences of, and to,
an uprooted population. It serves as the bridge in the jurisprudential gap between
the IMT, Nuremberg-subsequent tribunals and the ICTY, affirming that any unjus-
tified deportation, regardless of whether any boundary is traversed, is recognized
as criminal in customary international law. This is further supported now that the
Rome Statute and the ICC Elements of Crimes incorporate deportation and forced
transfer into one crime,193 apply one definition,194 and refer to them collectively as
forced displacement.195 The state of customary international law is clear: forced
displacement, whether or not it crosses any boundary and for any purpose, is an
international crime in its own right.
193Article 7(1)(d) ICCSt.

194Article 7(1)(d) Elements of the Crimes, supra note 57.
195Ibid., at footnote 13 (‘deported and forcibly transferred’ is interchangeable with ‘forcibly
displaced’).
Chapter 12
Issues of Sexual and Gender-Based
Violence at the ECCC
Valerie Oosterveld and Patricia Viseur Sellers
Abstract This chapter examines how the Extraordinary Chambers in the Courts of
Cambodia have—and have not—addressed sexual and gender-based crimes under
the Khmer Rouge regime. It begins with a brief exploration of what was known
about sexual and gender-based violence under the Khmer Rouge when the ECCC
began operation, and how negation of this knowledge seriously impacted the court’s
initial investigations. It then turns to an examination of how forced marriage came
to be addressed as a crime against humanity in Case 002. This section evaluates the
ECCC’s analysis of forced marriage as an inhumane act, which represents a posi-
tive addition to the understanding of forced marriage in international criminal law.
However, it also highlights the current gaps that still need to be addressed, including
the definition and classification of forced marriage. The chapter subsequently exam-
ines how the ECCC has considered rape as a crime against humanity. This story is
not as positive. The court has narrowly prescribed the acts of rape that can be con-
sidered in Case 002/02 to rapes within forced marriages, likely affecting Case 004’s
allegations of rape outside of forced marriages. It has also determined that rape was
not considered a specific crime against humanity in 1975. The chapter ends with an
inquiry into the ECCC’s likely legacy on sexual and gender-based crimes.
Keywords Rape · Forced marriage · Sexual violence · Gender-based violence
Valerie Oosterveld is Assistant Professor and Director of the International Internship Program at
the University of Western Ontario; Patricia Viseur Sellers is the Special Advisor for Prosecution
Strategies to the Prosecutor of the ICC.
V. Oosterveld (*)
University of Western Ontario, London, Canada
e-mail: vooster@uwo.ca
P.V. Sellers
ICC, The Hague, The Netherlands
e-mail: pvsellers@hotmail.com

DOI 10.1007/978-94-6265-105-0_12
322 V. Oosterveld and P.V. Sellers
Contents
12.1 Introduction........................................................................................................................ 320
12.2 Assumptions About, and Knowledge of, Sexual and Gender-Based Violence.................. 321
12.3 Forced Marriage as Considered by the ECCC................................................................... 323
12.3.1 Case 002................................................................................................................. 324
12.3.2 Cases 003 and 004................................................................................................. 330
12.4 Rape as Considered by the ECCC..................................................................................... 332
12.4.1 Case 001................................................................................................................. 333
12.4.2 Case 002................................................................................................................. 340
12.4.3 Case 004................................................................................................................. 344
12.5 Conclusion: The Legacy of the ECCC on Sexual and Gender-Based Violence................ 345
References................................................................................................................................... 348
12.1 Introduction
For nearly forty years, the conventional international narrative about the Khmer
Rouge regime was that it carried out large-scale population movements, forced
labour and executions, but was largely devoid of sexual violence.1 This assump-
tion was replicated in the initial work of the Extraordinary Chambers in the Courts
of Cambodia, but was later challenged by the Civil Parties and the Co-Prosecutors.
In examining issues of sexual and gender-based violence during the period of
Democratic Kampuchea, the ECCC has taken some pioneering steps in recogniz-
ing forced marriage and rape directed against both males and females. At the same
time, it has also come to some debatable, even regressive, conclusions on the legal
categorization of these acts. However, the ECCC’s work is not yet complete, and it
has the potential—even if limited by political realities—to “surface”2 a wider
variety of sexual and gender-based crimes, and to develop a more fulsome under-
standing of the legal contours of rape and forced marriage as they existed in
1975–1979.
This chapter begins with a brief exploration of what was known about sexual
and gender-based violence under the Khmer Rouge when the ECCC began oper-
ation, and how negation of this knowledge seriously impacted the court’s initial
investigations. It then turns to an examination of how forced marriage—a gender-
based act—came to be addressed as a crime against humanity in Case 002. This
section evaluates the ECCC’s analysis of forced marriage as an inhumane act,
which represents a positive addition to the understanding of forced marriage in
international criminal law. However, it also highlights the current gaps that still
need to be addressed, including the definition and classification of forced mar-
riage. The chapter subsequently examines how the ECCC has considered rape as
a crime against humanity. This story is not as positive. The court has narrowly
1The conventional international narrative did not consider the wider category of gender-based
violence.
2This term comes from: Copelon 1994, at 243–266.
12 Issues of Sexual and Gender-Based Violence at the ECCC 323
prescribed the acts of rape that can be considered in Case 002/02 to rapes within
forced marriages, likely affecting Case 004’s allegations of rape outside of forced
marriages. It has also determined that rape was not named per se as a crime
against humanity in 1975, and therefore, under the principle of legality, evidence
of rape may only be considered when it satisfies the elements of other (less gen-
der-specific) crimes, such as torture. While classification of rape as torture is not
necessarily negative—it does highlight the way in which torture is gendered—the
consideration of rape in Cambodia only within the bounds of torture is discon-
certing. The chapter ends with an inquiry into the ECCC’s legacy on sexual and
gender-based crimes committed during mass atrocity.
12.2 Assumptions About, and Knowledge of, Sexual

and Gender-Based Violence
Code 6 of the Khmer Rouge’s ‘Twelve Codes of Conduct of the Combatants’ is

commonly cited as: “Do not abuse women (forcing a woman to have consensual
sex or having sex with a woman who is not your wife).”3 Until recently, due to the
existence of Code 6, conventional international wisdom adhered to the stance that,
while the Khmer Rouge regime propagated an extremist ideology, it remained
devoid of sexual violence.4 Many simplistically interpreted Code 6 as an anti-rape
law: they equated the existence of the law with an assumption that the law was
enforced and followed.5 However, the reality was quite a bit more nuanced: Code 6
was meant to provide state control over all sexual activity in order to promote spe-
cific types of procreation as a form of social engineering.6 Some rape was con-
doned, such as rape against the ‘enemy’ in regime-run detention or security
centers.7 Other than an early sociological study that estimated that 17 % of
respondents experienced rapes or sexual violence under the Khmer Rouge,8 it was
not until 2000 and later that academic and factual chronicles emerged describing
rapes, sexual terrorization and forced marriages in Democratic Kampuchea.9
3The twelve codes are listed by the Documentation Center of Cambodia, ‘Searching for the Truth’,
Vol. 15, at 1, available at http://www.d.dccam.org/Projects/Magazines/Previous%20Englis/Issue15.pdf
(visited 21 June 2015). However, see a more accurate translation of Code 6 in De Langis (2014), at 64.
4For example, see claims that ‘In the case of the Cambodian genocide, the Khmer Rouge sought
to build an ideologically pure utopia and so sex and reproduction was highly regulated. In neither
of these cases did rape or sexual assault play a major role’, Center for Law and Globalization
(2015), ‘How Are Genocide and Sexual Assault Related?’, available at https://clg.portalxm.com/
library/keytext.cfm?keytext_id=170 (visited 15 June 2015).
5De Langis 2014, at 62–63.
6Ibid. at 66.
7Ibid. at 70–73.
8Mollica et al. 1993, at 581–586.
9E.g., Anderson 2005, 785–823; Toy-Cronin 2006; Ung 2000, at 70–71.
In contrast to the international silence, popular knowledge about forced

arriages, rapes and other forms of sexual and gender-based violence existed in
m
Cambodia, even though the official domestic history tended to mirror the interna-
tional silence. Numerous examples of sexual and gender-based violence were
lodged in the archives of the Documentation Center for Cambodia (DC-Cam).
A cursory archival review uncovers that, by 2000—years before the creation of the
ECCC—DC-Cam’s monthly publication, “Searching for the Truth”, regularly con-
textualized the sexual and gender-based violence practices perpetrated in the geno-
cide. The January 2000 issue of Searching for the Truth published a direct witness
story of the rape of a Ms. Phal by Khmer Rouge security cadres in the presence of
her child, followed by her murder.10 The February 2000 issue recounts a woman’s
job assignment to breastfeed eight infants of other women assigned to work
details, contrary to Cambodian cultural norms, and the system of forced marriages,
including forcing women to marry disabled soldiers.11 The April 2000 issue dis-
cussed thousands of marriages arranged by Pol Pot.12 In 2004, the Center indi-
cated that it had identified over 168 cases of rape perpetrated during the regime in
Democratic Kampuchea, and also produced a film about Tang Kim, who was
gang-raped by the Khmer Rouge.13 In 2006, Kasumi Nakagawa, a professor of
gender studies at Pannasastra University in Phnom Penh produced a groundbreak-
ing study, in English, on forced marriages.14 Others have described the centrality
of forced marriages to the Khmer Rouge population policies: forced marriage was
a tool to control sexual relations among the population and, through forced procre-
ation, to breed a specifically engineered future population.15
The architects of the ECCC’s legal framework, and the early legal submissions
and decisions of court officials, eschewed the mounting domestic and international
documentation, studies and testimonies of sexual and gender-based crimes.16
A lawyer for the Civil Parties recalled:
The rationale the co-prosecutors informally gave was that in light of the huge number of
victims who were killed, starved and overworked, they focused chiefly on those crimes. In
addition, at the beginning, the co-prosecutors adopted the common perception that while
the Khmer Rouge acted cruelly against their own population, they exercised the moral
10Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 1 (January 2000), at 24,
available at www.d.dccam.org/Projects/Magazines/Previous%20English/Issue01.pdf (visited 21

June 2015).
11Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 2 (February 2000), at 45,

June 2015).
12Documentation Center of Cambodia, ‘Searching for the Truth’, Vol. 4 (April 2000), at 46,

June 2015).
13‘Khmer Rape Victim Tells her Story’ Taipei Times, 27 August 2004, available at http://www.
taipeitimes.com/News/world/archives/2004/08/27/2003200423 (visited 15 June 2015).

14The study was updated in 2008: Nakagawa 2008.
15Braaf 2014, at 24–31.
16For more studies, see Natale (2011); De Langis, Ye 2011, at 469–475.
high ground when it came to sexual matters. These assumptions by the prosecutors were
made without a clear line of questioning to establish this as a fact, and without further
investigation.17
However, by the time the ECCC was created, this justification was untenable.
The organs of the court, especially the Office of the Prosecutor, had access to sev-
eral databases, including collections by DC-Cam, containing original documenta-
tion and secondary sources referring to the crucial role played by sexual and
gender-based violence during the regime. Those leads could have been meticu-
lously cultivated to develop a gender-competent investigation plan, including the
securing of expert witnesses. Civil society partners were ready to cooperate.18
It took concerted effort, and expenditure of time, on the part of the Civil Parties
to move the ECCC away from its initial bias against investigating and prosecuting
crimes of sexual and gender-based violence. The following two sections describe
the outcome of those efforts, and how the initial reluctance has left indelible marks
on the gender justice legacy of the ECCC.
12.3 Forced Marriage as Considered by the ECCC
Approximately 400,000 men and women were forcibly married under the Khmer
Rouge regime.19 They now are traversing a circuitous route to legal redress. The
first case before the ECCC, Case 001, entertained no allegations of forced mar-
riage, despite attempts by the Civil Parties to explore evidence that, under the
order of the accused, at least one case of forced marriage had taken place.20 In
contrast, the Closing Order in Case 002 confirmed charges for acts of forced mar-
riage, including rapes within the context of forced marriages.21 The Closing Order
recognized and described how and why forced marriage occurred, and placed
forced marriage within the larger context of overarching CPK policy to recreate
Cambodia through a socialist revolution. The discussion of forced marriage in
Case 002 will undoubtedly influence Cases 003 and 004, which also will consider
forced marriage under the Khmer Rouge. This section will begin by examining the
initial absence of forced marriage from Case 002, the pressure exerted by Civil
Parties to include forced marriage in the Closing Order, the resulting analysis, and
17Studzinsky 2013, at 179.

18Balthazard 2013, at 28.
19Second Request for Investigative Actions Concerning Forced Marriages and Forced Sexual
Relations, Nuon Chea and others (002/19-09-2007/ECCC-D188), Co-Lawyers for the Civil
Parties, 15 July 2009, § 9 (hereafter Second Civil Parties Request on Forced Marriage).
21Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427), Office of the
Co-Investigating Judges, 15 September 2010, §§ 1432, 1442–1446 (hereafter Closing Order

Case 002).
the impact of the severance order in Case 002 on the ECCC’s consideration of
forced marriage. It will then explore the ramifications of Case 002’s conclusions
on forced marriage on Cases 003 and 004.
12.3.1 Case 002
The 2007 Introductory Submission of the Office of the Co-Prosecutors did not con-
tain any reference to sexual and gender-based violence,22 due to the assumptions
and omissions outlined in Sect. 12.2. However, as a result of sustained efforts by the
lawyers for the Civil Parties to submit evidence on a variety of sexual and gender-
based crimes (including forced marriage, forced pregnancy, rape, sexual slavery and
forced domestic labour of a gendered character),23 the scope of the investigation in
Case 002 was subsequently expanded to include forced marriage.
The Civil Parties began pressing for the inclusion of charges relating to sexual and
gender-based violence in 2008.24 They initially faced reluctance within both the
Offices of the Co-Prosecutors and the Co-Investigating Judges, and used a variety of
legal and awareness-raising strategies to make their case.25 As a result of applications
to the court by the Civil Parties, the Co-Prosecutor and the Co-Investigating Judges
eventually responded, with the Office of the Co-Prosecutors filing a Supplementary
Submission in April 2009 which requested the Co-Investigating Judges to investigate
allegations of forced marriage in certain of the situations put forward by the Civil
Parties.26 The narrowness of this request (which indicated that a link was required
between the forced marriage and the forced sexual relations) and lack of action by
22Introductory Submission, Nuon Chea and others (002/19-09-2007/ECCC-D3), Office of the

Co-Prosecutors, 18 July 2007.
23This list is set out in Second Civil Parties Request on Forced Marriage, supra note 19, § 15, which
classifies all of these violations under the title of forced marriage but requests separate offences.
24ECCC Press Statement by Civil Parties Lawyer Silke Studzinsky, First Civil Party Application
before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on Gender-Based Violence
under the Khmer Rouge Regime, 3 September 2008, available at http://www.eccc.gov.kh/sites/
default/files/media/PressRelease_1st_civil_party_on_Gender_Based_Violence.pdf (visited 15 June
2015) (hereafter Studzinsky 2008 Gender-Based Violence Press Statement).
25For example, in March 2009, the lawyers for the Civil Parties requested the Office of the
Co-Investigating Judges to send a Forwarding Order for the Office of the Co-Prosecutors to peti-
tion investigation into forced marriages, rape, sexual enslavement, forced pregnancy and other
acts of sexual or gender-based violence in Case 002. Since no investigative action had been
taken, they followed up with a second request: Second Civil Parties Request on Forced Marriage,
supra note 19, § 1. See also Order on Request for Investigative Action on Forced Marriages and
Forced Sexual Relations, Nuon Chea and others (002/19-09-2007/ECCC-D268/2), Office of the
Co-Investigating Judges, 18 December 2009.
26Co-Prosecutor’s Response to the Forwarding Order of the Co-Investigating Judges and the
Supplementary Submission, Nuon Chea and others (002/19-09-2007/ECCC-D146/3), Office of

the Co-Prosecutors, 30 April 2009, § 305.
the Co-Investigating Judges led the Civil Parties to make additional requests for
proper, thorough investigative action on forced marriages and forced sexual
relations.27 This resulted in a clarification from the Co-Prosecutors, which indicated
that other instances of forced marriage and forced sexual relations throughout
Cambodia were to be investigated, and that forced marriage does not require proof of
forced sexual relations.28 The Co-Investigating Judges issued a consolidated response
to the Civil Parties, the Co-Prosecutors and the defence.29 While the Co-Investigating
Judges pointed out that the elements of forced marriage need not be analysed until
they issue their Closing Order, they did note that the Special Court for Sierra Leone’s
Appeals Judgment in Brima et al. provides “due notice of the constituent aspects of
forced marriage”.30 They specifically indicated that the Brima et al. judgment held
that forced marriage not to be conditioned on forced sexual relations, although that
could be evidence of the victim’s injury.31 They also cited favorably to the Brima
appellate holding that forced marriage could constitute other inhumane acts under
crimes against humanity, but also specified that the crimes against humanity of rape,
torture, enslavement, imprisonment and forced pregnancy (under the category of
other inhumane acts) may also be used to characterize certain of the facts related to
forced marriage.32 Thus, the Civil Parties were successful in prompting the
Co-Prosecutors and Co-Investigating Judges to investigate sexual and gender-based
violence through the lens of forced marriage.
The Closing Order, delivered in September 2010, was a watershed moment for
the recognition of forced marriage under the Khmer Rouge regime. That document
classified the regulation of marriages to be one of the five policies that the
Communist Party of Kampuchea (CPK) undertook to rapidly implement the “great
leap forward” in Cambodia’s socialist revolution.33 The Closing Order described
the CPK’s execution of the five policies as the common plan of a joint criminal
27E.g. Second Civil Parties Request on Forced Marriage, supra note 19; Fourth Civil Parties’
Request for Investigative Actions Concerning Forced Marriages and Sexually Related Crimes, Nuon
Chea and others (002/19-09-2007/ECCC-D268), Co-Lawyers for the Civil Parties, 4 December
2009.
28Further Authorization Pursuant to Co-Prosecutors’ 30 April 2009 Response to the Forwarding Order
of the Co-Investigating Judges and Supplementary Submission, Nuon Chea and others (002/19-09-
2007/ECCC-D146/4), Office of the Co-Prosecutors, 5 November 2009, § 3; Further Statement of the
Co-Prosecutors Regarding 30 April 2009 Response to the Forwarding Order of the Co-Investigating
Judges and Supplementary Submission, Nuon Chea and others (002/19-09-2007/ECCC-D146/5),
Office of the Co-Prosecutors, 26 November 2009.
29Order on Request for Investigative Action Concerning Forced Marriages and Forced Sexual
Relations, Nuon Chea and others (002/19-09-2007/ECCC-D268/2), Office of the Co-Investigating

Judges, 18 December 2009 (hereafter OCIJ December 2009 Forced Marriage Order).
30Ibid., § 10.
31Ibid.
32Ibid., § 11.
33Closing Order Case 002, supra note 21, §§ 156–157. The Closing Order also found that the
forced marriages formed part of the attack against the civilian population during the entirety of
the Khmer Rouge rule.
enterprise in which all of the accused participated.34 Forced marriages, as depicted

by the Closing Order, were regulated by the CPK to control sexual interactions
between men and women so as to reconstruct the meaning of marriage in
Cambodia.35 The CPK replaced the role of parents.36 Males and females both
were forcibly married,37 usually to persons unknown to them,38 in mass wed-
dings.39 Refusal to marry could lead to execution.40 A main objective of the CPK
policy revolved around population growth.41 To ensure increased births, couples
were pressed to rapidly consummate their marriages42 often under CPK surveil-
lance43 and some forced marriages did result in children. The Closing Order rec-
ognized 644 Civil Parties as able to give prima facie evidence on the regulation of
marriage policy.44
The Closing Order charged conduct of forced marriage under two different
crimes against humanity categories listed in the ECCC Statute: other inhumane
acts and rape.45
‘Other inhumane acts’ was used to capture the coercion associated with the
forced marriage ceremonies, while acts of rape within forced marriages were char-
acterized both as ‘other inhumane acts’ and rape.46 With respect to the actus reus
of other inhumane acts through forced marriages, the Closing Order held:
“[V]ictims endured serious physical or mental suffering or injury or a serious
attack on human dignity of a degree of gravity comparable to that of other crimes
against humanity. The victims were forced to enter into conjugal relationships in
coercive circumstances”.47 With respect to the mens rea, the Closing Order held
that, “the perpetrators knew of the factual circumstances that established the grav-
ity of their acts.”48
The Closing Order could have chosen other categories under which to consider
forced marriage, as explained by the Co-Investigating Judges in their December
2009 response.49 In using ‘other inhumane acts’, the Co-Investigating Judges were
34Ibid., §§ 158–159.
35Ibid., §§ 216–217.
36Ibid., § 217.
37Ibid., § 842.
38Ibid., § 849.
39Ibid., § 843.
40Ibid., §§ 849–850.
41Ibid.
42Ibid., § 858.
43Ibid., §§ 220, 314 and 1432.
44Ibid., § 861.
45Ibid., §§ 1432, 1442–1446.
46Ibid., § 1433.
47Ibid.
48Ibid., § 1444.
49OCIJ December 2009 Forced Marriage Order, supra note 29, § 11.
following the precedent set by the Special Court for Sierra Leone.50 However, in
doing so, the Co-Investigating Judges did not explain why they were rejecting the
categories of torture, enslavement and imprisonment raised by the Civil Parties, nor
did they address the debate in the scholarly literature about the Special Court’s use
of ‘other inhumane acts’ as the repository of forced marriage.51 Additionally, the
Co-Investigating Judges did not question the use of the term ‘forced marriage’ in the
situation in Sierra Leone, which did not involve any form of marriage under law and
which was premised on the rebels’ desire for a very gendered form of female forced
domestic labour and constant sexual access through rape.52 As well, the Closing
Order did not directly explore the place of forced pregnancy in the category of ‘other
inhumane acts’, even though it had been raised in the December 2009 response.53 In
the Sierra Leone scenario, babies born to the females were a result of rape, and were
not bred for policy purposes of the non-state armed groups.54 In the Cambodia situa-
tion, in contrast, the Closing Order recognized that the policy of forced marriage was
designed to impose “sexual relations aimed at forced procreation”.55
By focusing so closely on the category of ‘other inhumane acts’ in a manner
similar to the Special Court for Sierra Leone, the Closing Order also missed the
opportunity to capture some of the gender-related nuances of the evidence pro-
vided to the Office of the Co-Investigating Judges. For example, the Civil Parties
presented evidence of persecution of sexual minorities, such as transgendered indi-
viduals.56 This could be understood as political persecution, given the regime’s
focus on heterosexual sexual relations. As well, evidence of forced marriages of
Buddhist monks and female family members of those who worked for Lon Nol
could be understood as gendered acts of political, racial or religious persecution.57
50Judgment, Brima, Kamara and Kanu (SCSL-04-16-T), Trial Chamber II, 20 June 2007, § 701.
This categorization was rejected by the majority, §§703–704, but was accepted at the appellate
level: Judgment, Brima, Kamara and Kanu (SCSL-04-16-A), Appeals Chamber, 22 February
2008, §§ 185–186, 199–202. This categorization was also accepted in: Judgment, Sesay, Kallon
and Gbao (SCSL-04-15-T), Trial Chamber I, 2 March 2009, e.g. §§ 168, 1461.
51These debates on categorization of forced marriage are canvassed in Oosterveld 2011, at
143–153.
52Viseur Sellers refers to the use of the term ‘forced marriage’ in this respect as ‘linguistic cam-
ouflage’: Viseur Sellers 2011, at 137 and 142.

53OCIJ December 2009 Forced Marriage Order, supra note 29, § 11; the issue was only raised
obliquely in the Closing Order under the ‘other inhumane acts’ discussion: Closing Order Case
002, supra note 21, §§ 1445, 1447.
54The Sierra Leone armed conflict generated other abominable acts of sexual violence, however:
V. Oosterveld 2012, at 11.

56Studzinsky 2008 Gender-Based Violence Press Statement, supra note 24; Nakagawa 2008; Civil
Parties Closing Brief to Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E295/6/2),
Trial Chamber, 26 September 2013, § 214 at note 504 (hereafter Civil Parties Closing Brief to
Case 002/01).
57Civil Parties Closing Brief to Case 002/01, supra note 56, §§ 209–211, 216. On forced marriages
to eliminate Muslim families and the Muslim religion, see Braaf 2014, at 14. See also So 2011.
Finally, the Closing Order does not take the analysis of forced marriage into an
examination of the lives of children born as a result of forced marriages, who were
considered more the children of Angkar than of their parents.58 Exploration of a
more accurate and refined legal characterization of the CPK’s regulation of mar-
riages would have been a welcome contribution to the evolution of customary law.
As mentioned above, the Closing Order also charged the accused with rape as a
crime against humanity. While this category will be explored in greater detail in
Sect. 12.4, it is important to note that the Closing Order only viewed rapes occur-
ring within forced marriages as forming part of the common plan that formed the
joint criminal enterprise in Case 002.59 This decision concerning the mode of
liability therefore limits Case 002’s evidentiary base, and charges, to rapes within
the conduct of forced marriage.60
On 22 September 2011, the Trial Chamber severed Case 002 into several
smaller cases in the interest of delivering a timely verdict.61 The Trial Chamber
limited the evidentiary scope of the first trial, Case 002/01, to forced transfers of
the population and executions. The result is that the trial judgment in Case 002/01
makes only brief reference to the regulation of marriage and no findings on sexual
or gender-based violence.62 The severance of Case 002 spurred litigation through-
out 2012 and 2013 about the reasonable representativeness of crimes and the due
consideration of the parties.63 In January 2014, the Civil Parties and the
Co-Prosecutors filed responses to the Trial Chamber’s request for written submis-
sion on the scope of Case 002/02.64 The Civil Parties’ submission requested that
the scope of Cases 002/02, inter alia, permit the examination of evidence on
forced marriages and rape within that context, on a nation-wide basis.65 They sub-
mitted that forced marriage is “the only context in Case 002 through which the
Trial Chamber will have the opportunity to consider explicit allegations of sexual
and gender-based crimes, which are unique in their legal elements and nature to
the other crimes against humanity alleged in Case 002 and, thus, indispensable to
58Civil Parties Closing Brief to Case 002/01, supra note 56, § 206.
59Closing Order Case 002, supra note 21, § 1429.
60If the mode of liability had been aiding and abetting, rape in other instances could have been
included. If the mode of liability had been command/superior responsibility, liability of superi-
ors for rape committed by subordinates prior to executions and implicitly condoned by superior
might have been prosecuted. Finally, if the charging theory of genocide had included killing and
causing serious bodily or mental harm to members of the group, then rape of religious and ethnic
minorities might have been pursued.
61See Chap. 16 in this volume.
2014, §128. As a result, the reparations do not deal with forced marriage, see §§ 1151–1164.
63See Chap. 16 in this Volume.
64Trial Chamber Workplan for Case 002/02 and Schedule for Upcoming Filings, Nuon Chea and
others (002/19-09-2007/ECCC-E301/5), Trial Chamber, 24 December 2013.

65Civil Parties’ Submission on the Scope of Case 002/02, Nuon Chea and others (002/19-09-
2007/ECCC-E301/5/3), Trial Chamber, 31 January 2014.

reasonably represent the nature of the crimes”.66 In addition to forced marriages

and attendant sexual violence, the Civil Parties proposed that the Trial Chamber
entertain evidence about the 1st of January Dam worksite where the facts support
targeted killings of pregnant women67 and the Koh Kyang Security Center, in
which “female prisoners are alleged to have been subjected to forced nakedness,
sexual humiliation and sexual abuse”.68 In its April 2014 Decision, the Trial
Chamber granted the expansion of evidence in Case 002/02 to include forced mar-
riage and attendant rapes committed on a nationwide basis.69
The hearing on Case 002/02 began on 17 October 2014. As of the date of writ-
ing, several witnesses have provided testimony on forced marriage in this case. For
example, Ms. Cheang Sreimom has provided detailed evidence about her forced
marriage, subsequent coercion of forced sexual relations, and consequent difficult
pregnancy.70
In sum, Case 002 has been both groundbreaking and disappointing for victims
of forced marriage. It is groundbreaking due to its consideration, in the Closing
Order and in the evidence presented to date in Case 002/2, of forced marriage as it
was carried out under the Khmer Rouge regime. The ECCC is only the second
international criminal tribunal to consider forced marriage under crimes against
humanity and the first to expound on state-sanctioned policies regulating marriage
as a joint criminal enterprise. The strategic submissions of Civil Parties were
essential in gaining this recognition. Case 002 is disappointing because of the long
delays before the court properly investigated and officially acknowledged that
forced marriages had taken place. Additionally, the legal contours of the court’s
consideration of forced marriage have not developed much beyond those set by the
Special Court for Sierra Leone, despite the Co-Investigating Judges’ initial
acknowledgment that forced marriage can encompass imprisonment, enslavement,
torture and forced pregnancy. However, the Trial Chamber in Case 002/02 may
take the consideration of forced marriage into new legal territory. Subsequent to
the issuance of the Closing Order, the Trial Chamber of the Special Court for
Sierra Leone articulated a very different approach to forced marriage in the Taylor
case. The judges eschewed the term ‘forced marriage’—because there was no
legal marriage in the Sierra Leone scenario—in favour of ‘conjugal slavery’.71
They opined that forced marriage in the Sierra Leone conflict was actually two
different forms of enslavement: forced gendered domestic labour plus sexual

66Ibid., § 11.
67Ibid., § 19.
68Ibid., § 25.
69Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and
others (002/19-09-2007/ECCC-E301/9/1), Trial Chamber, 4 April 2014, § 33 (hereafter Decision

on Additional Severance of Case 002). This was confirmed by the Supreme Court Chamber.
70Transcript of Trial Proceedings [Ms. Cheang Sreimom, 2-TCW-834], Nuon Chea and others
(002/19-09-2007/ECCC-E1/254.1), Trial Chamber, 29 January 2015.

71Judgment, Taylor (SCSL-03-01-T), Trial Chamber II, 26 April 2012, § 427–428.
slavery.72 Given this development, the Trial Chamber will need to decide whether
the Taylor approach will alter the direction of the ECCC’s forced marriage
jurisprudence.
The Trial Chamber in Case 002/02 will also be asked to decide whether the reg-
ulation of marriage by the state can be considered a crime: defence counsel have
challenged this view.73 The Trial Chamber will also be required to determine,
under the principle of legality, whether forced marriage of the type that occurred
in Cambodia was prohibited as an inhumane act in 1975, given that the Special
Court for Sierra Leone’s pronouncements only covered the mid-1990s onward. In
both scenarios, it may be helpful for the Trial Chamber to consider the Special
Court for Sierra Leone’s approach in Taylor, since enslavement was clearly a
crime against humanity in 1975. That said, Williams and Palmer argue that forced
marriage should not always be charged as enslavement (or as its subset, sexual
slavery).74 The defining legal tenet of enslavement is that the perpetrator exercises
powers attaching to the right of ownership over the victim(s). They contend that
the harm of forced marriage to the victims contained additional unique elements
beyond enslavement: “the loss of the freedom to select their partners, and the par-
ticipation of their families and communities in the marriage”.75 However, the
counter-argument is that these losses are indeed losses of autonomy illustrative of
the exercise of powers attaching to the right of ownership by high-level Khmer
Rouge cadres.76
12.3.2 Cases 003 and 004
Forced marriage is being considered by the ECCC in Cases 003 and 004. Case 003
involves an unnamed suspect and a named suspect, Meas Muth, a former Khmer
Rouge navy commander. On 3 March 2015, the International Co-Investigating
Judge charged Muth in absentia with crimes against humanity, war crimes and
homicide as a violation of the 1956 Cambodian Penal Code.77 Muth allegedly
committed these crimes at the Wat Enta Nhien security centre, Kampong Som,
72Ibid., § 424. Oosterveld has argued that the meaning of conjugal slavery be kept both flexible
and wide to remain adaptable to varied contexts such as the Khmer Rouge forced marriages in
Cambodia: Oosterveld 2012, at 23.
73Ieng Thirith Defence’s Preliminary Objections, Nuon Chea and others (002/19-09-2007/
ECCC-E24/2), Trial Chamber, 14 February 2011, §§ 27–30.

74Williams and Palmer 2015, at 475.
75Ibid., at 475–476.
76Viseur Sellers 2011, at 141–142. See also 122–127 and 135 on how a similar argument can be
made with respect to slavery in the United States and elsewhere.

77ECCC Press Release, ‘The International Co-Investigating Judge Charges Meas Muth in absentia
in Case 003’ (2015), available at http://www.eccc.gov.kh/en/articles/international-co-investigating-

judge-charges-meas-muth-absentia-case-003 (visited 15 June 2015).
Kratie, S-21 security centre, and against Vietnamese, Thai and other foreigners at
sea and on the islands over which Democratic Kampuchea claimed sovereignty.78
In November 2014, the International Co-Prosecutor filed a Supplementary
Submission requesting that the Co-Investigating Judges also consider forced mar-
riage and subsequent rapes in Kompong Som, referring to evidence of groups of
up to 20 couples who were forcibly married in a single ceremony and of women
sent from other zones or sectors to Kampon Son to be forcibly married to military
cadres.79 The International Co-Prosecutor, cognizant that his requests recommen-
dations are not supported by the National Co-Prosecutor and are facing other
forms of blockage, also stated that, given the historical silencing of crimes of sex-
ual violence, “it is the prosecution’s solemn duty to do all they can to ensure that
the physical security and privacy concerns of these victims are respected and that
the truth about their suffering is recognized.”80
Case 004 involves four accused, two of whom have been named. On March 3,
2015, Im Chaem was charged in absentia. Chaem was allegedly Secretary of the
Preah Net Preah District in the North-West Zone under the Khmer Rouge. She was
charged with, inter alia, the crimes against humanity of murder, extermination,
enslavement, imprisonment, persecution on political grounds, and other inhumane
acts allegedly committed at the Phnom Trayoung security centre.81 She was also
charged with the crimes against humanity of murder, enslavement, imprisonment,
and other inhumane acts allegedly committed at the Spean Sreng worksite.82 On
March 27, 2015, Ao An was also charged in Case 004 with, inter alia, the crimes
against humanity of murder, extermination, persecution on political and religious
grounds, imprisonment, and other inhumane acts (namely inhumane conditions of
detention) at Kok Pring execution site, Tuol Beng security centre and Wat Au
Trakuon security centre.83 He was allegedly the former deputy Central Zone secre-
tary under the Khmer Rouge.84
In April 2014, the International Co-Prosecutor issued a press release indicating
that he had filed a confidential Supplementary Submission requesting that the
78Ibid.
79ECCC Press Release, ‘International Co-Prosecutor Files Supplementary Submission in Case 003’
(2015), available at http://www.eccc.gov.kh/en/articles/international-co-prosecutor-files-supplementary-

submission-case-003 (visited 15 June 2015).
80Ibid.
81ECCC Press Release, ‘The International Co-Investigating Judge Charges Im Chaem in absentia
in Case 004’ (2015), available at http://www.eccc.gov.kh/en/articles/international-co-investigating-

judge-charges-im-chaem-absentia-case-004 (visited 15 June 2015).
82Ibid.
83ECCC Press Release, ‘The International Co-Investigating Judge Charges Ao An in Case 004’
(2015), available at http://www.eccc.gov.kh/en/articles/international-co-investigating-judge-charges-

ao-case-004 (visited 15 June 2015).
84S. Turton, ‘Second Case 004 Suspect Charged’, Phnom Penh Post (27 March 2015), available
at http://www.phnompenhpost.com/national/second-case-004-suspect-charged (visited 15 June

2015). He appeared before the court to hear the charges, but was not arrested.
Office of the Co-Investigating Judges investigate forced marriage in key districts

already under investigation in this case.85 He indicated that evidence in this case
includes “instances where groups of up to 80 couples were married in a single cer-
emony”.86 The International Co-Prosecutor stated that the Supplementary
Submission is based on new evidence from Civil Party victims submitted in Case
002 and “in statements of evidence being collected from witnesses on an ongoing
basis in Case 004”.87 In the same announcement, the International Co-Prosecutor
revealed that he had also requested the investigation of rapes and sexual violence
committed outside the context of forced marriages in areas where the suspects in
Case 004, Khmer Rouge cadre, held command or political positions of influence,
explored below in Sect. 12.4.88
These developments in Cases 003 and 004 “show an encouraging development
of gender sensitivity within the ECCC, and again demonstrate the value of Civil
Party participation in increasing the visibility of victims of sexual [and gender-
based] violence”.89 If the International Co-Prosecutor is able to complete his
investigations, an if Closing Orders are issued in these cases alleging acts of
forced marriage, it would signal a successful development in the ECCC’s jurispru-
dence, and more generally for international criminal law’s understanding of forced
marriage.90 However, if Closing Orders do not translate into actual trials, the out-
come would represent a highly exasperating failure by the court.91
12.4 Rape as Considered by the ECCC
Rape is listed as a prohibited act within the crimes against humanity provision in
the ECCC’s Statute. Despite the indication that rape may be prosecuted directly as
a crime against humanity, several problems have emerged resulting in a limited
analysis by the court of rape committed during the Khmer Rouge regime. The
assumptions and factors described in Sect. 12.2 led to an initial failure to
investigate and, hence, charge rape.92 Civil Parties pressed for further investiga-
tions to uncover forced marriage and rape as described above, and evidence
85ECCC Press Release, ‘International Co-Prosecutor Requests Investigation of Alleged Sexual
and Gender-based Violence in Case 004’ (2014), available at http://www.eccc.gov.kh/en/articles/

international-co-prosecutor-requests-investigation-alleged-sexual-and-gender-based-violence
(visited 15 June 2015) (hereafter Case 004 Sexual and Gender-Based Violence Announcement).
86Ibid.
87Ibid.
88Ibid.
89Killean 2015, 331–352, at 345.
90Ibid., at 346.
91Ibid.
92Studzinsky 2013, at 178–179, 181, 183.
emerged of rape in Case 001,93 which partly corrected the gender-incompetent

start to the court. However, it soon became clear that there were fundamentally
different views among the Co-Prosecutors, Co-Investigating Judges, and judges of
the Trial and Appeals Chambers on how to classify rape. The ramification is that
the Co-Investigating Judges, and the judges of the Trial and Appeals Chambers,
have undermined the sparse progress that had been made within the ECCC in rec-
ognizing the existence of rape in two ways. First, the Co-Investigating Judges
established a somewhat artificial differentiation of rape occurring within and out-
side of forced marriage, based upon inaccurate assumptions about state policy
condemnations of rape outside of the context of forced marriage. Second, the
judges implicitly and explicitly collapsed their analysis of rape under other more
gender-neutral provisions of crimes against humanity, thereby losing some of the
expressive and legal value of naming rape as a crime against humanity. On the
other hand, the recognition that the Khmer Rouge regime used rape to torture vic-
tims highlights the gendered nature of torture, and reinforces certain pre-existing
international jurisprudence. The problem is that the Chambers did not consciously
extend a gendered analysis of torture, forging a double-edged outcome.
This section begins by discussing how rape was considered in Case 001 in the
Closing Order, the trial judgment and the appeals judgment. This case demon-
strates the initial failure by the Co-Prosecutors to investigate rape, emergent evi-
dence of rape during the initial and trial procedures, dismissal of certain of the
emergent evidence, and redefinition of the evidence as something other than rape
as a crime against humanity. This section then turns to a discussion of how rape
has been classified in Case 002, including the changing legal analysis of the act
within Case 002/01 and later in Case 002/02. This section concludes with a con-
sideration of the issues likely to be faced within Case 004 on rape due to the find-
ings of Cases 001 and 002.
12.4.1 Case 001
Case 001, against Kaing Guek Eav (alias Duch), involved events at the Tuol Sleng
(S-21) detention and interrogation centre in Phnom Penh. Duch served as chair of
S-21.94 In the initial investigations in Case 001, the Co-Prosecutors did not examine
the possibility of rape occurring in S-21.95 However, during the proceedings lead-
ing to the adoption of the Closing Order, Duch admitted that he was aware of one
incident of rape occurring during interrogation in S-21, in which an interrogator
93Closing Order Indicting Kaing Guek Eav alias Duch, Kaing Guek Eav (001/18-07-2007/
ECCC-D99), Office of the Co-Investigating Judges, 8 August 2008, §§ 105, 107 (as amended
5 December 2008) (hereafter Closing Order in Case 001).
94Ibid., § 1.
95Studzinsky 2013 at 178–179.
inserted a stick into a female prisoner’s genitals.96 Duch indicated that he reported
the incident to a superior, but that person did not say anything and Duch did not
punish the perpetrator.97 Duch was therefore charged with responsibility for this
incident, which the Closing Order classified as the crime against humanity of
rape.98
The act of rape by Duch’s subordinate identified in the Closing Order was also
confirmed in the trial judgment.99 That judgment noted that Duch had testified that
he “did not know that this constituted a crime and treated the incident as any other
violation of the regulation of torture”.100 While there was evidence of another rape
at S-21 put forward by several witnesses, the Trial Chamber held that it was not
satisfied that this allegation was proven to the required standard and therefore no
conviction was entered.101 Studzinsky describes other evidence of rape that came
forth during the proceedings, but notes that it was either not investigated by the
Co-Prosecutors or was rejected by the court.102
The Trial Chamber held that, under the principle of legality, Duch could only be
convicted of international crimes that formed part of customary international law in
1975–1979.103 The Trial Chamber acknowledged that rape had long been prohib-
ited in customary international law, and that the prohibited act of rape was listed as
a crime against humanity in Control Council Law No. 10, enacted in 1945.104
Given that rape (and other offences) were prohibited under customary law in 1975–
1979, and given “the appalling nature of the offences charged”, the Trial Chamber
refuted Duch’s claim that he was unaware of the criminal nature of these acts.105
The Trial Chamber defined the actus reus of rape as “the sexual penetration,
however slight[,] of the vagina or anus of the victim by the penis of the perpetrator
or any other object used by the perpetrator; or the mouth of the victim by the penis
of the perpetrator, where such sexual penetration occurs without the consent of the
victim.”106 The Chamber defined the perpetrator’s mens rea as acting “with the
intent to ‘effect this sexual penetration, and the knowledge that it occurs without
the consent of the victim.’”107 These definitions were based on jurisprudence of the
96Closing Order in Case 001, supra note 93, §§ 105, 137.

97Ibid.
98Ibid.,at 44, Dispositive.
99Judgment, Kaing Guek Eav (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July 2010,
§ 246 (hereafter Judgment in Case 001).
100Ibid., § 246.
101Ibid., § 247.
102Studzinsky 2013, at 179, 180. See also 180 on lack of action on forced marriage.
103Judgment in Case 001, supra note 99, § 284.
104Ibid., §§ 293, 294 (stating that it was foreseeable that Duch could be held criminal liable for
rape under article 5 of the ECCC Law), 296, 361.

105Ibid., § 295.
106Ibid., § 362.
107Ibid., § 365.
International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and
ICTR respectively), and the Special Court for Sierra Leone.108
In adopting this definition of rape, the ECCC Trial Chamber followed the
approach of the ICTY in the Kunarac case.109 In doing so, it chose one out of a
number of extant definitions of rape in existence in international criminal law.110
While this was a significant development, as it represented the first time the ECCC
determined which definition applied to Cambodia in 1975–1979, there was very
little discussion in the judgement. The Trial Chamber acknowledged that, in the
Akayesu case, the ICTR defined rape broadly as “a physical invasion of a sexual
nature, committed on a person under circumstances which are coercive”.111
However, it decided to follow the approach of the ICTY as developed first in the
Furundžija and then the Kunarac cases, implicitly supporting the ICTY’s state-
ment that these approaches were more precise and technical, and therefore more in
accordance with the international legal requirement of specificity.112 In adopting
the Kunarac approach, which brings specific focus to non-consent, the ECCC nec-
essarily considered how non-consent could be demonstrated. It found that non-
consent may be evidenced by the use of force or by the coercive circumstances
surrounding the act, and that no proof of resistance on the part of the victim is
required.113 It acknowledged that circumstantial evidence may be used to demon-
strate rape.114 The Trial Chamber also recognized that social stigma attaching to
rape victims in certain societies “might render any proof of this crime difficult”.115
One of the most challenging outcomes of the ECCC’s definition of rape is that,
while it fits the specific rape scenario in Case 001, it does not necessarily fit rape
within forced marriage as considered in Case 002. The definition pre-supposes
rape between a perpetrator and a victim, and not between two victims, as occurred
in forced marriages. Due to the specificity of body parts, it does not necessarily
108Ibid., § 362, notes 666 and 670.

109Ibid., § 362, note 666 citing Judgment, Kunarac, Kovac and Vukovic (IT-96-23 & IT-96-23/1-A),
Appeals Chamber, 12 June 2002, § 127.
110For a summary of these definitions, see Eriksson 2011, at 364–408, 424–430.
111Judgment in Case 001, supra note 99, § 362, note 666, citing Judgment, Akayesu (ICTR-96-4-T),
Trial Chamber, 2 September 1998, § 598.

112Ibid., § 362, note 666, citing Judgment, Furundžija (IT-95-17/1-T), Trial Chamber, 10 December
1998, § 177. Curiously, it cited the Special Court for Sierra Leone’s definition of rape in Sesay
et al., supra note 50, §§ 145–146, but did not note that the Sesay definition of rape is, in fact, dif-
ferent from the other cases cited as it follows the actus reus of rape as defined in the International
Criminal Court’s Elements of Crimes document and the mens rea requirement set out in the
ICTY’s Kunarac judgment. The ECCC did not refer to the Special Court’s earlier trial judgment in
Brima et al., supra note 50, § 693, in which that court followed the ICTY’s Kunarac approach in
defining rape.
113Judgment in Case 001, supra note 99, § 363. This last comment goes to the fact that many
domestic jurisdictions require proof of resistance, either explicitly or as a matter of courtroom

practice: Eriksson 2011, at 90–91.
114Judgment in Case 001, supra note 99, § 364.
115Ibid.
capture the male victims: were the male victims in forced marriages who were
forced to have sex with female victims ‘penetrated’, as required by the definition?
This is a situation in which the Akayesu definition would have been preferable,
given it wider ambit. The judges in Case 001 should have been thinking ahead to
the precedent this set for other cases before the ECCC.
Having stated that rape was, in and of itself, a prohibited offence under the
ECCC Statute and international criminal law, the Trial Chamber decided to con-
duct its analysis of rape through the lens of torture as a crime against humanity.116
It accepted the evidence of a single rape in S-21 and found that this instance of
rape comprised “an egregious component of the prolonged and brutal torture
inflicted upon the victim prior to her execution” and therefore characterized this
conduct as torture.117 Duch was therefore found guilty of torture carried out
through rape, which was then subsumed into the crime against humanity of perse-
cution on political grounds.118 One can understand why the ECCC Trial Chamber
considered the evidence of a single rape through the prohibited act of torture: the
rape took place during an interrogation session involving other forms of torture
and thus was a tool of torture, and acts of rape have been considered through the
charge of torture in previous international criminal judgments.119 Additionally, the
Trial Chamber noted that rape, by its nature, causes severe pain and suffering,
which is a constituent element of torture.120 It was following precedent set by, for
example, the ICTY’s Appeals Chamber in the Kunarac case, which held that “sex-
ual violence necessarily gives rise to severe pain or suffering, whether physical or
mental, and in this justifies its characterization as an act of torture”.121
This characterization of the incident of rape at S-21 as torture can be viewed in
two manners. On the one hand, it acknowledges that rape is used as a form of tor-
ture to exert a confession, coerce, intimidate, punish or discriminate against the
victim. It therefore names the prohibited act of rape within the surrounding con-
text of torture, which can be a powerful statement as to the circumstances of the
crime.122 On the other hand, the collapsing of the rape incident into the torture
charge not only seems to add additional elements of proof for the prosecution,123 it
116Ibid., § 366.
117Ibid.
118Ibid., §§ 366, 559, 568.
119Ibid., §§ 246, 366; Furundžija, supra note 112, §§ 163–164.
120Judgment in Case 001, supra note 99, §§ 354, 355. Note that the Trial Chamber also confirmed that
rape amounting to torture could also be considered persecution as a crime against humanity: § 280.
121Kunarac, supra note 109, § 150.
122Naming has expressive import, as it labels something otherwise hidden and explains it impli-
cations: Cook and Cusack 2010, at 39.

123Torture requires proof of intention to cause severe pain and suffering and that those who
carried out the torture are acting in an official capacity: Judgment in Case 001, supra note 99,
§ 358–359. Note that the method of reasoning by the Trial Chamber seems to incorrectly imply
that the prosecution must first prove the elements of rape (non-consent, penetration), then rape as
fitting within the elements of torture elements.
also conceals the sexual nature of this particular form of torture, as it becomes
lumped in with all other (nonsexual) forms of torture. In order to preserve the gen-
der-related aspects of this form of torture, the court should have preserved the
cumulative charges for both rape and torture.
The Co-Prosecutors were clearly worried about subsuming rape into torture, as
this formed part of their appeal to the ECCC’s Supreme Court Chamber. They
argued that the Trial Chamber erred in law by characterizing an act of rape com-
mitted at S-21 as the crime against humanity of torture.124 In particular, while they
acknowledged that certain international jurisprudence did the same, they con-
tended that “international tribunals have consistently characterized rape as a crime
against humanity distinct from torture even if the same criminal act amounts both
to rape and torture”.125 They indicated that separate, but related, recognition of
rape and torture better reflects “in full the gravity of the conduct”.126 They there-
fore requested that the Supreme Court Chamber cumulatively convict Duch for
both rape and torture as crimes against humanity.127
The Supreme Court Chamber took a radically different view of the interna-
tional law applicable in 1975–1979. It found that rape was prohibited as a war
crime by the start of the ECCC’s temporal jurisdiction, but that rape had not yet
crystallized as a crime against humanity.128 In coming to this conclusion, the
Supreme Court Chamber recognized that rape was listed as a crime against
humanity in Control Council Law No. 10 after World War II, but gave more
weight to the fact that no defendants before the World War II international or
national military tribunals were charged with rape as a crime against humanity and
no international treaty or convention prohibited rape as a crime against humanity
as of 1975–1979.129 It discounted the jurisprudence of the ICTY, ICTR and
Special Court for Sierra Leone on rape as a crime against humanity because their
temporal jurisdictions came after the ECCC’s temporal jurisdiction.130 It ignored
regional precedent almost contemporaneous with the Khmer Rouge regime.131 It
concluded that recognition of rape as a crime against humanity did not begin to
take shape until the 1990s.132 In looking at other sources of law, it found that,
124Appeal Judgment, Kaing Guek Eav (001/18-07-2007/ECCC-F28), Supreme Court Chamber,

3 February 2012, § 168 (hereafter Appeal Judgment in Case 001).
125Ibid., § 168.
126Ibid.
127Ibid.
128Ibid., §§ 175–176, 213. Note: this is a replication of an argument made in 2011 by the accused
in Case 002, and on which they were successful (see infra).

129Ibid., § 176.
130Ibid., § 178.
131The International Crimes (Tribunals) Act, 1973 (Act No. XIX of 1973) of Bangladesh lists
rape as a crime against humanity in section 3(2)(a), available at http://bdlaws.minlaw.gov.bd/

print_sections_all.php?id=435 (visited 15 June 2015).
132Appeal Judgment in Case 001, supra note 124, § 179.
while rape was criminalized under Cambodia’s 1956 Penal Code (which was in
effect during 1975–1979), this does not support recognition of rape as a crime
against humanity during the same time period as crimes against humanity require
proof of additional elements of crime.133 It did, however, find that torture was a
crime against humanity in 1975–1979, and that rape could fulfil the actus reus of
torture at that time.134 It therefore concluded that “the Trial Chamber did not err in
holding that the act of rape constituted torture as a crime against humanity” but
that “the Trial Chamber erred in subsuming rape as a distinct crime against
humanity under the crime against humanity of torture”.135 However, the Supreme
Court Chamber made the specific distinction that “the Trial Chamber did not err in
concluding that an instance of rape was covered by the definition of torture that
existed under customary international law by 1975”.136
This nullum crimen sine lege reasoning by the Supreme Court Chamber is wor-
risome for three reasons. First, the Chamber did not clearly explain why it signifi-
cantly discounted the fact that Control Council Law No. 10 lists rape as a crime
against humanity. This would appear to be important evidence of the views of the
Allies at the time.137 Additionally, it did not explain why it ignored the fact that
the United Nations and the Government of Cambodia had agreed, during the nego-
tiations on the ECCC Statute, that rape was indeed a crime against humanity dur-
ing the temporal period of the tribunal.138 The ECCC did state, however, that there
was no case law stemming from Control Council Law No. 10 on rape as a crime
against humanity.139 It appears that the judges were unaware that there were
related trials that did prosecute rape in this manner. Plesch et al. have reviewed the
archives of the United Nations War Crimes Commission and concluded that at
least one case prosecuted rape as a crime against humanity, and numerous other
cases prosecuted rape as a war crime in the context of a legal understanding which
intertwined crimes against humanity and war crimes.140 This included cases in
133Ibid., § 182.
134Ibid., §§ 205 and 208: The Supreme Court Chamber found that the definition of torture in the
1975 Declaration on Torture was indicative of customary international law at the time.
135Ibid., §§ 210, 213.
136Ibid., § 213.
137Civil Party Lead Co-Lawyers’ Response to the Co-Prosecutors’ Request to Re-Characterize
the Facts Establishing the Conduct of Rape as a Crime Against Humanity, Nuon Chea and others
(002/19-09-2007/ECCC-E99/1), Trial Chamber, 21 July 2011, §§ 28, 31 (hereafter Civil Parties
on Rape as a Crime Against Humanity).
138Report of the Secretary-General on Khmer Rouge Trials, UN Doc. A/57/769 (31 March
2003) at Annex, article 2(1), which recognizes the Cambodian Law on the Establishment of the
Extraordinary Chambers in the Courts of Cambodia, listing the crime against humanity of rape.
139Appeal Judgment in Case 001, supra note 124, § 176.
140Plesch et al. 2014, 349–381. Plesch et al. refer to the case brought by the Chinese War Crimes
Military Tribunal against Japanese officer Takashi Sakai: 357–358. They make the point that
crimes against humanity were considered by many to be subsumed under war crimes at that time,
at 357, and that the archives reveal a number of rape as a war crime prosecutions, at 352–353, 359,
364–366.
which rape was the sole war crime charged and convicted.141 They concluded that
the “records of the frequent indictment and conviction of accused for rape offences
in the post-World War II period strengthen the argument that rape was recognized
as a crime against humanity under customary international law during World War
II, or at least at the conclusion of the war.”142 While the analysis by Plesch et al.
was not available at the time of the Chamber’s ruling, the historical information
was available in the War Crimes Commission’s archives.
The second cause for concern is that the Chamber relies upon a historical
wrong—the failure to investigate and punish rape in the World War II International
Military Tribunals and subsequent national military tribunals—to demonstrate that
rape was not a distinct crime against humanity in 1975–1979. The absence of
numerous direct prosecutions for the crime against humanity of rape illustrates that
prosecutors and courts paid inadequate attention to this and all forms of sexual vio-
lence (whether “out of discomfort, prudishness, or other reason[s]”).143 However, it
does not necessarily logically follow that rape was not a distinct crime against
humanity at the time: impunity does not prove that a law does not exist.144 As well,
it fails to consider the crossover between rape as a war crime and rape as a crime
against humanity, insofar as recognition as a war crime significantly influenced the
recognition of rape as a crime against humanity. It is true that jurisprudence on the
crime against humanity of rape was developed in the 1990s onward, but again this
does not prove non-crystallization of rape as a crime against humanity prior to that
time. International human rights law identified rape as a serious violation by
1975.145 Indeed, rape may have been explicitly prohibited under international law
since the enactment of Control Council Law No. 10, but opportunities to prosecute
did not exist for social and political reasons. In this vein, it could be legitimately
argued that rape as a crime against humanity suffered the same conditions as rape
as a domestic crime: the crime existed, but was rarely enforced due to a number of
interrelated factors stemming from gender discrimination, such as societal stigma
for rape victims, lack of similar stigma for perpetrators, lack of properly-trained
investigative and prosecutorial personnel, lack of venues for rape victims to access
support and healing and lower socio-economic status for women and girls (and
therefore greater risk in reporting rape). As well, Williams and Palmer make the
important argument that the Supreme Court Chamber should not have focused on
the formalist consideration of whether the crime against humanity of rape was
explicitly delineated as such international law in 1975, but rather should have
141Ibid.,at 359–360.
142Ibid.,at 358, 360–361.
143Askin 2013, at 33.
144Civil Parties on Rape as a Crime Against Humanity, supra note 137, § 28.
145Report of the World Conference of the International Women’s Year, Mexico City, 19 June–2 July
1975, Declaration of Mexico on the Equality of Women and their Contribution to Development and
Peace 1975, UN Doc. E/CONF.66/34, para. § 28.
focused on whether the conduct itself was unlawful.146 This has been the approach
of other international criminal tribunals.147
Unfortunately, the conclusion of the Supreme Court Chamber in Case 001 is
echoed in Case 002, described next.
12.4.2 Case 002
Case 002 originally involved four high-ranking members of the Khmer Rouge:
Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith. The case was later
reduced to cover two accused—Nuon Chea (former Deputy Head of State
of Democratic Kampuchea) and Khieu Samphan (former Head of State of
Democratic Kampuchea)—due to the death of one accused and the medical unfit-
ness of another. The ECCC has considered the crime against humanity of rape in
Case 002, and has—like in Case 001—delivered a narrow interpretation of the
international law governing rape in 1975–1979.
The Closing Order for Case 002, decided in 2010, discusses both the regulation
of marriage, discussed in Sect. 12.3.1, and rape. The Order notes that “it is clearly
established that under the Democratic Kampuchea regime crimes against human-
ity of rape were committed in diverse circumstances”, notably in several security
centres (such as S-21) and at the Tram Kok Cooperatives.148 At these sites, “perpe-
trators purposefully committed physical invasions of a sexual nature against vic-
tims in coercive circumstances or otherwise without the consent of the victim”.149
This decision is in line with the 2008 Closing Order (and Amended Closing Order)
in Case 001 [The Supreme Court Chamber’s conclusion that rape was not a dis-
tinct crime against humanity in 1975–1975 under customary international law was
not in existence at this time, as it was issued in 2012.].
Despite this promising recognition of rape within the security centres and coop-
eratives, the Closing Order excluded the possibility of the accused being convicted
of rape outside of the context of forced marriage. Due to Code 6, the Closing Order
found that the official Khmer Rouge policy on rape “was to prevent its occurrence
and to punish the perpetrators”.150 As a result, the indictment states that “it cannot
be considered that rape [outside of forced marriage] was one of the crimes used by
the CPK leaders to implement the common purpose” except in the case of forced
marriage.151 However, the Closing Order differentiated rape within forced marriage
and permitted it to remain because “the crime of rape in the context of forced

147Ibid., citing Furundžija, supra note 112, § 184.
149Ibid., § 1427.
150Ibid., § 1429.
151Ibid.
marriage was one of the crimes used by the CPK leaders to implement the common
purpose” of regulating marriage.152 This approach fails to consider that rape out-
side of forced marriage was, in fact, state-sanctioned, albeit in a different manner.
For example, as alleged in Case 004, sometimes that rape took place prior to execu-
tion, likely as a means to debase and humiliate certain types of individuals as part
of Khmer Rouge policy.
Interestingly, despite the espousal of the ICTY’s Kunarac approach to the actus
reus and mens rea in the Duch Judgment, the Closing Order in Case 002 based its
definition on the ICTR’s broader and more conceptual Akayesu definition of rape,
likely to address the definitional problems mentioned in Sect. 12.4.1. The actus
reus of rape was defined as: “a physical invasion of a sexual nature against a vic-
tim in coercive circumstances in which the consent of the victim was absent”.153
The men rea is: “the perpetrators intended the physical invasion of a sexual nature,
with the knowledge that it occurred in coercive circumstances or otherwise with-
out the consent of the victim”.154 The court acknowledged that the acts of rape,
“by their nature or consequences”, were part of that attack against the civilian pop-
ulation.155 Additionally, the Closing Order stated that the “facts characterized as
crimes against humanity in the form of rape can additionally be categorized as
crimes against humanity of other inhumane acts in the form of sexual violence.”156
This recognition of rape in forced marriages within the Closing Order was a
significant success, given that all rape, including rape within forced marriages, had
been largely overlooked within the ECCC prior to this time. It also led to the
admission of large number of Civil Parties.157 At the same time, the narrowing of
the rape count to exclude rapes outside of forced marriage was frustrating for the
Civil Parties, who tried to demonstrate that the examples of alleged punishment in
cases of rape do not support the conclusion of the Closing Order.158 The Civil
Parties sought to show that rape outside of forced marriage was known by the per-
petrators’ superiors, but was not punished (contrary to Code 6), including rape of
individuals already targeted for execution.159 Studzinsky therefore characterizes
the admission of rape within forced marriage as a victory, but one “tainted by the
exclusion of rapes outside of the context of forced marriage”.160
The accused appealed the Closing Order’s inclusion of rape within forced
marriage as a crime against humanity on the basis that rape was not yet a crime
152Ibid., § 1432.
153Ibid., § 1431.
154Ibid.
155Ibid.
156Ibid., § 1433.
158Ibid., at 183.
159Ibid. See also Civil Parties on Rape as a Crime Against Humanity, supra note 137, §§ 33–40.
against humanity in 1975–1979.161 The Pre-Trial Chamber agreed with this argu-
ment.162 The Pre-Trial Chamber adopted similar reasoning to that later articulated
by the Supreme Court Chamber in Case 001. It did not accept evidence of rape
established as a war crime from at least the 1863 Lieber Code onward, or the list-
ing of rape as distinct crime against humanity in Control Council Law No. 10, as
influencing the development of crimes against humanity by 1975.163 Rather, the
absence of convictions for crimes against humanity after World War II heavily
influenced its conclusion.164 These conclusions may be questioned for the reasons
set out above, and have been criticized by commentators.165 Additionally, the Pre-
Trial Chamber, in its reasoning, dismissed the Duch Closing Order by stating that
the Trial Chamber “did not particularly have to focus in making findings on
whether rape existed as a Crime Against Humanity in its own right in customary
law in 1975–1979” because it was only examining one instance of rape which is
not sufficient to satisfy the “widespread and systematic” chapeau for crimes
against humanity.166 This is an invalid critique of the Duch Closing Order: the pro-
hibited acts do not need to be either widespread or systematic—rather, the prohib-
ited act (in this case, rape) needed to take place in the context of a widespread or
systematic attack, which was composed of many different forms of torture and
other prohibited acts.
Notwithstanding this conclusion, the Pre-Trial Chamber found that “the mate-
rial facts pleaded in the Closing Order with respect to rape may potentially amount
to the crime against humanity of an ‘other inhumane act’.”167 It therefore struck
out the charge of rape as a crime against humanity from the Closing Order, but
maintained the facts, which are charged as inhumane acts.168 The accused also
argued that forced marriage and sexual violence did not amount to ‘other inhu-
mane acts’ by 1975.169 The Pre-Trial Chamber concluded that ‘other inhumane
acts’ were crimes against humanity by 1975, and that they amounted to acts that
are similar in nature and gravity to other prohibited acts listed as crimes against
humanity.170 It did not consider whether specific material facts (forced marriage or
sexual violence) could amount to ‘other inhumane acts’ because it was not proper
(002/19-09-2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 357 (hereafter Decision
on Ieng Sary Appeal Against the Closing Order).
162Ibid., § 371.
163Ibid., § 367.
164Ibid., § 368.
165Studzinsky 2013, at 182–183; Killean 2015, at 339.
166Decision on Ieng Sary Appeal Against the Closing Order, supra note 161, § 364(1).
167Ibid., § 371.
168Ibid., § 372.
169Ibid., § 373.
170Ibid., § 396.
to evaluate each of these as if they were prohibited acts in and of themselves—this

would render the category ‘other inhuman acts’ otiose.171
In June 2011, the Co-Prosecutors requested the Trial Chamber to recharacterize
the facts from the category of inhumane acts to rape as a crime against human-
ity.172 They argued that the crime of rape “more specifically reflects the nature of
the harm done” and that this characterization comports with the principle of legal-
ity.173 They reviewed the jurisprudence and international treaties governing rape,
and put forward the view that crystallization as a crime against humanity “must
have occurred in the immediate wake of World War II, at the latest, as there was no
significant conventional or jurisprudential development related to the crimes
against humanity of rape in the years between 1945 and 1993.”174 Indeed, this
makes sense, because the alternative is to argue that rape crystallized as a crime
against humanity very suddenly in the early 1990s just as the United Nations
Security Council was drafting the ICTY Statute.175 They also posited that the
“principle of legality does not require that a crime has been proscribed in the exact
and precise terms in which it is later prosecuted, as long as it was reasonably fore-
seeable and accessible to the Accused that certain acts or omissions would entail
international criminal liability”.176 This request was supported by Civil Parties.177
These arguments were reiterated by the Co-Prosecutors who noted that the “exist-
ence of a rule of customary international law criminalizing rape is conceptually
distinct from the political will necessary to prosecute core international crimes or
to give the necessary priority to the prosecution of crimes for which women are
the principal target”.178 These arguments were initially sidestepped when the Trial
Chamber severed Case 002 in September 2011, allowing the charges of forced
171Ibid., § 378.
172Co-Prosecutors’ Request for the Trial Chamber to Recharacterize the Facts Establishing
the Conduct of Rape as the Crime Against Humanity of Rape Rather than the Crime Against
Humanity of Other Inhumane Acts, Nuon Chea and others (002/19-09-2007/ECCC-E99),
Trial Chamber, 16 June 2011 (hereafter Co-Prosecutors’ Request on Rape as a Crime Against
Humanity).
173Ibid., § 5.
174Ibid., § 16. They later provide the example of the Bangladeshi law establishing rape as a
crime against humanity (see note 131 above): Co-Prosecutors’ Consolidated Reply to Defence
Responses to Co-Prosecutors’ Requests to Recharacterize Charges in the Indictment and to
Exclude the Nexus Requirement for an Armed Conflict to Prove Crimes Against Humanity, Nuon
Chea and others (002/19-09-2007/ECCC-E95/6), Trial Chamber, 11 August 2011, § 87 (hereaf-
ter Co-Prosecutors’ Consolidated Reply on Crimes Against Humanity).
175See Report of the Secretary-General, UN Doc. S/25/704 (3 May 1993), § 34: the ICTY should
only apply rules that were ‘beyond any doubt part of customary international law’.
176Co-Prosecutors’ Request on Rape as a Crime Against Humanity, supra note 172, § 7.
177Civil Parties on Rape as a Crime Against Humanity, supra note 137, §§ 3, 14–16, 18–19, 24.
They pointed to additional pre-1975 precedent for the national prosecution of rape as a CAH:
§ 23. They also noted the absence of female layers and members of the International Military
Tribunals as a factor in the neglect and omission of rape as a crime against humanity: § 17.
178Co-Prosecutors’ Consolidated Reply on Crimes Against Humanity, supra note 174, § 79.
population movements and related crimes (such as murder, extermination, perse-

cution, forced transfer and enforced disappearances) to proceed as Case 002/01
and the other charges (including rape within forced marriage as an inhumane act)
in Case 002/02.179 Unfortunately, the Trial Chamber has now indicated that it will
not revisit this issue in Case 002/02.180 Case 002/02 is currently in the trial stage
and is considering rape associated with forced marriage committed nationwide.181
However, there are potential openings for the Trial Chamber to consider rape
outside of forced marriage in Case 002/02. The Trial Chamber is examining
charges of torture related to four security centres, which includes evidence of rape
in S-21 and potential rape of Cham women before being killed at the Trea Village
Security Centre.182 “While the Trial Chamber has precluded consideration of rape
outside of forced marriage committed within security centres” as being outside of
the common plan, this does not mean that the Trial Chamber is precluded from
considering rape as torture.183
12.4.3 Case 004
As described in Sect. 12.3, in April 2014, the International Co-Prosecutor issued a

press release in Case 004, indicating that he had filed a confidential
Supplementary Submission requesting that the Office of the Co-Investigating
Judges expand their investigations. Apart from cases of forced marriage, he also
requested that the Office investigate “instances where women were raped prior to
being executed, and instances where women who reported rapes during the Khmer
Rouge period were subsequently executed.”184 The International Co-Prosecutor
classified the factual allegations contained in the new evidence as the crimes
against humanity of extermination, murder, enslavement, imprisonment, torture,
rape, persecution and other inhumane acts, as well as homicide and torture in vio-
lation of Cambodia’s 1956 Penal Code.185 As he had done in Case 003, he also
recognized the social pressures and discrimination faced by victims of rape, as
well as the need to recognize the truth of their suffering.186 This recognition is
ECCC-E124), Trial Chamber, 22 September 2011, § 5. See § 160 for the sidestepping.
180Further Information Regarding Remaining Preliminary Objections, Nuon Chea and others
(002/19-09-2007/ECCC-306), Trial Chamber, 25 April 2014, § 3.

181Decision on Additional Severance of Case 002, supra note 69, § 33.
182Closing Order in Case 002, supra note 21, at 458 and 785.
184Case 004 Sexual and Gender-Based Violence Announcement, supra note 85. Rapes prior to
execution were a common practice, especially of females from ethnic Cambodian communities,
such as the Cham: Braaf 2014, at 24–31.
185Case 004 Sexual and Gender-Based Violence Announcement, supra note 85.
186Ibid.
important, because it explains why it has taken his office longer to make this
request than for the crimes original described in the Introductory Submission.
Sexual crimes during mass atrocity present specific investigation challenges.187
This is mirrored by the current day challenges facing rape victims—female and
male—in Cambodia.188
This Supplementary Submission represents a strikingly different approach from
the initial assumptions that rape outside of forced marriage did not occur under the
Khmer Rouge, or that, if it did, it was punished. The International Co-Prosecutor
clearly wishes to challenge that assumption. However, he will face difficulties on
two main fronts, due to the restrictive manner in which rape has been addressed by
the ECCC to date. First, it appears that he is proposing to charge the crime against
humanity of rape, so he will be tested by the fact that the court has twice previ-
ously ruled that rape was not specifically recognized as a crime against humanity
in 1975 (despite the strong arguments that can be made to the contrary). The deci-
sion by the Trial Chamber not to reopen the Supreme Court Chamber ruling on
rape in Case 002 likely precludes charges of rape as a crime against humanity
from being considered in Case 004 unless a differently constituted Trial Chamber
was to reopen the issue.189 Second, he will also need to directly confront the
ECCC’s earlier ruling that rape outside of forced marriage was not foreseeable due
to Code 6.
12.5 Conclusion: The Legacy of the ECCC on Sexual

and Gender-Based Violence
The ECCC’s legacy on sexual and gender-based violence can be classified as

mixed, at best. The Co-Prosecutors, Co-Investigating Judges and Chambers
required time to concede two incorrect assumptions that hampered the initial func-
tioning of the tribunal: first, that the mass atrocity under the Khmer Rouge was rel-
atively free of sexual and gender-based violence due to Code 6, and that, where
such violence took place, it was punished; and, second, that there is a hierarchical
ranking of crimes in which killings, starvation and forced labour take precedence
over the investigation of sexual and gender-based violence.190 The exertion of sub-
stantial efforts by the Civil Parties, and the receptivity of certain individuals within
the Offices of the Co-Prosecutors and the Co-Investigating Judges, were required
187This is the impetus behind the International Protocol on the Documentation and Investigation
of Sexual Violence in Conflict: Basic Standards of Best Practice on the Documentation of Sexual
Violence as a Crime Under International Law (2014), available at https://www.gov.uk/government/
uploads/system/uploads/attachment_data/file/319054/PSVI_protocol_web.pdf (visited 15 June 2015).
188Amnesty International, ‘Cambodia—Breaking the Silence: Sexual Violence in Cambodia’ (2015),
available at https://www.amnesty.org/en/documents/asa23/001/2010/en/ (visited 15 June 2015).

to overcome these ingrained suppositions and launch investigations into sexual

and gender-based violence. As outlined above, the late start led to the identifica-
tion of only one rape incident in Case 001, although the Civil Parties presented
evidence of other cases of rape and forced marriage which were not pursued by
the Co-Prosecutors or were rejected by the court.191 On the other hand, the court
confirmed in this case that rape indeed can qualify as torture, not only confirming
the jurisprudence of the ICTY on this matter but also indicating that the crime
against humanity of torture included a prohibition on the use of rape in 1975–
1979. However, in coming to this important conclusion, the court took a surprising
step backward in international criminal law by finding that rape did not exist as a
separately-recognized crime against humanity in 1975–1979.
Case 002 similarly contained progression and regression in the recognition
of sexual and gender-based violence under the Khmer Rouge regime. Case 002
began without any recognition of sexual and gender-based violence. After pressure
from, and detailed arguments by, the Civil Parties about the existence of forced
marriage, forced pregnancy, rape, sexual slavery and forced domestic labour of a
gendered character, Case 002 was expanded to examine one of these issues: forced
marriage (leaving the others largely unexplored and unanalyzed). The expansion
of Case 002 was significant because it led the court to identify the regulation of
marriage as one of five key policies undertaken by the CPK to rapidly imple-
ment the socialist revolution. This brought the court’s analysis of forced marriage
from the periphery to the centre of Case 002. However, there have also been some
missed opportunities ripe for redress in the judgment for Case 002/02. For exam-
ple, the court has been vague about the relationship between rape and forced mar-
riage. As well, the court has not questioned whether the Special Court for Sierra
Leone’s approach to the definition and categorization of forced marriage/conjugal
slavery actually applies in the Cambodian case. Additionally, the court found that
rape did not exist as a separate category of crimes against humanity in 1975–1979,
and rather simplistically accepted the existence of Code 6 as regulating rape out-
side of forced marriage, despite evidence to the contrary from Civil Parties. The
latter conclusion meant that the court will not convict the accused for rape com-
mitted outside of the context of forced marriage. This denies justice to a swathe of
victims before the ECCC.
Cases 003 and 004 seem to represent efforts by the International Co-Prosecutor
to regain lost ground and to make up for missed opportunities. The International
Co-Prosecutor has recommended that the Co-Investigating Judges examine forced
marriages and rapes as interrelated and interdependent crimes, including in cases
where women were raped prior to being executed. That said, the restrictive find-
ings from Cases 001 and 002—for example, that rape did not amount to a separate
category of crimes against humanity in 1975–1979—will likely continue to haunt
Cases 003 and 004.
191Ibid., at 180.
Despite the efforts outlined above, it is important to note that, to some extent,
the court’s narrative is one of sexual violence (directed against women)192 as
opposed to gender-based violence directed against women, girls, men and boys.
This mirrors the experiences at other international criminal tribunals of the col-
lapsing of gendered existences into female rape experiences.193 This reduction is
evident in the decisions to analyze rape and forced marriage, but not forced preg-
nancy, sexual slavery, forced domestic labour of a gendered nature, sexual assault
against males, or sexual terrorization of the general population. It should be noted
that the Civil Parties have tried hard to bring to the fore analysis of the socially-
constructed nature of gender, even if the court has not engaged very deeply with
that analysis.194 However, the court has not completely ignored gender. It has
implicitly and explicitly identified gendered harms done to the forced spouses as a
result of the mass marriage ceremonies, women and babies who died during child-
birth and after due to harsh conditions, and mothers forced to leave their babies
with wet-nurses while they undertook forced labour or who were otherwise forci-
bly separated from their children.195 Recording these harms is significant, as they
provide a first step toward “surfacing” the gendered experiences of civilian
women, girls, men and boys under the Khmer Rouge regime.
What does the record to date of the ECCC mean for the court’s longer-term leg-
acy? One legacy will be an instruction on how not to conduct an investigation and
prosecution lacking professional rigour. The assumptions taken at the beginning of
the ECCC’s existence have demonstrated—yet again—the need for global gender-
competent judicial institutions mandated to redress mass atrocity. The absence of
these approaches leads to less than optimal outcomes: diligent investigation and
incisive analysis of the sexual violence and reproductive policies could have honed
a better legal strategy for the prosecution and assisted the Civil Parties in their pur-
suit of gender-based crimes. Case 001 could have generated a more complete gen-
dered jurisprudence of the sexual violence in the notorious Tuol Sleng. Case
002/01 could have broadened its examination of acts of rapes perpetrated against
minorities prior to their execution so as to contemplate their characterization as
genocide or the crime against humanity of persecution. Perhaps, with some
retrospective analysis among the original actors and others, this experience can be
thoughtfully examined in a lessons-learned document like that of the ICTR.196
192Several accounts exist, outside the context of forced marriages, of males being raped by female
Khmer Rouge cadres: Nakagawa 2008, at 41–42.

193Except for the jurisprudence of the ICTY on male sexual assault, see Oosterveld 2014, at 110.
194Williams and Palmer 2015, at 466: the judgment in Case 002/01 ‘largely failed to recognise a
gendered dimension to forced transfer’.

195Outlined at id. at 465–466. See also the Khmer Rouge policy set out in the Closing Order Case 002,
supra note 21, § 215), of destroying the Vietnamese group on the theory of matrilineal descent.
196International Criminal Tribunal for Rwanda (2014) Prosecution of Sexual Violence—Best
Practice Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict
Regions: Lessons Learned from the Office of the Prosecutor of the International Criminal
Tribunal for Rwanda, ICTR, Arusha.
On the positive side, the legacy of the ECCC will surely include recognition of
the importance of the Civil Parties, and civil society organizations,197 in bringing a
gender perspective to the ECCC. Absent the information and pressure from these
actors, it appears that the tribunal would have continued down its original path.
It is vitally important that subsequent tribunals, and the International Criminal
Court, not repeat the same mistakes of the ECCC. The ECCC’s experience
reminds all of those involved in the international criminal justice enterprise that it
is absolutely crucial for those creating tribunals to undertake a thorough gender
analysis when the tribunals are being mandated and established, and throughout
their functioning. That analysis must include sexual violence, but also be wider
and include economic, family and other harms.198 Most of all, the ECCC’s leg-
acy—even if learned through mistakes—will be to demonstrate the critical role
that gender played in the Khmer Rouge’s attempts to reshape Cambodian society
and the far-reaching effects of those efforts on Cambodian citizens today.
References
Anderson K (2005) Turning Reconciliation on Its Head: Responding to Sexual Violence Under
the Khmer Rouge. Seattle Journal of Social Justice 3:785–823
Askin K (2013) Treatment of Sexual Violence in Armed Conflicts: A Historical Perspective and the
Way Forward. In: de Brouwer A, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as
an International Crime: Interdisciplinary Approaches. Intersentia, Antwerp, pp 19–55
Balthazard M (2013) Gender-based Violence During the Khmer Rouge: A Forgotten Issue?.
Cambodian Defenders Project, Phnom Penh
Braaf R (2014) Sexual Violence Against Ethnic Minorities During the Khmer Rouge Regime.
Cambodian Defenders Project, Phnom Penh
Center for Law and Globalization (2015) How Are Genocide and Sexual Assault Related?
Cook RJ, Cusack S (2010) Gender Stereotyping: Transnational Legal Perspectives. University of
Pennsylvania Press, Philadelphia
Copelon R (1994) Surfacing Gender: Re-engraving Crimes Against Women in Humanitarian
Law. Hasting’s Women’s Law Journal 5(2):243–266
De Langis T (2014) This is Now the Most Important Trial in the World: A New Reading of Code
6#, the Rule Against Immoral Offenses Under the Khmer Rouge Regime. Cambodia Law and
Policy Journal 3:61–78
De Langis T, Ye B (2011) Forced Marriages as Mirrors of Cambodian Conflict Transformation.
Peace Review 23(4):469–475
Eriksson M (2011) Defining Rape: Emerging Obligations for States under International Law?.
Martinus Nijhoff Publishers, Leiden
Killean R (2015) An Incomplete Narrative: Prosecuting Sexual Violence Crimes at the
Extraordinary Chambers in the Courts of Cambodia. Journal of International Criminal Justice
13:331–352
Mollica RF, Donelan K, Tor S, Lavelle J, Elias C, Frankel M, Blendon RJ (1993) The Effect of
Trauma and Confinement on the Functional Health and Mental Status of Cambodians living
in the Thai-Cambodia camps. J Am Med Assoc 270(5):581–586
197Ye 2014, 23–38.

198Ní Aoláin et al. 2011, at 45–49.
Nakagawa K (2008) Gender-Based Violence during the Khmer Rouge Regime: Stories of
Survivors from the Democratic Kampuchea (1975-1979), 2nd edn. Cambodian Defenders
Project, Phnom Penh
Natale K (2011) ‘I Could Feel My Soul Flying Away from My Body’: A Study on Gender-
Based Violence during Democratic Kampuchea in Battambang and Svay Rieng Provinces.
Cambodia Defenders Project, Phnom Penh
Ní Aoláin F, Haynes DF, Cahn N (2011) On the Frontlines: Gender, War, and the Post-Conflict
Process. Oxford University Press, New York
Oosterveld V (2011) Forced Marriage and the Special Court for Sierra Leone: Legal Advances
and Conceptual Difficulties. Journal of International Humanitarian Legal Studies 2:127–158
Oosterveld V (2012) Gender and the Charles Taylor Case at the Special Court for Sierra Leone.
William and Mary Journal of Women and the Law 19(1):7–33
Oosterveld V (2014) Sexual Violence Directed Against Men and Boys in Armed Conflict or
Mass Atrocity: Addressing a Gendered Harm in International Criminal Tribunals. Journal of
International Law and International Relations 10:107–128
Plesch D, Sácouto S, Lasco C (2014) The Relevance of the United Nations War Crimes
Commission to the Prosecution of Sexual and Gender-Based Crimes Today. Crim Law
Forum 25(1–2):349–381
So F (2011) The Hijab of Cambodia: Memories of Cham Muslim Women after the Khmer
Rouge. Documentation Center of Cambodia Documentation Series No. 16, Phnom Penh
Studzinsky, S (2008), ECCC Press Statement by Civil Parties Lawyer Silke Studzinsky, First
Civil Party Application before the Extraordinary Chambers in the Courts of Cambodia
(ECCC) on Gender-Based Violence under the Khmer Rouge Regime, 3 September 2008
Studzinsky S (2013) Victims of Sexual and Gender-Based Crimes Before the Extraordinary
Chambers in the Courts of Cambodia: Challenges of Rights to Participation and Protection.
In: de Brouwer A, Ku C, Römkens R, van den Herik L (eds) Sexual Violence as an
International Crime: Interdisciplinary Approaches. Intersentia, Antwerp, pp 173–186
Toy-Cronin B (2006) ‘I Want to Tell You’: Stories of Sexual Violence during Democratic
Kampuchea (1975-1979). Cambodian Defenders Project, Phnom Penh
Ung L (2000) First They Killed My Father. Harper Collins, New York
Viseur Sellers P (2011) Wartime Female Slavery: Enslavement? Cornell International Law
Journal 44(1):115–143
Williams S, Palmer E (2015) The Extraordinary Chambers in the Courts of Cambodia:
Developing the Law on Sexual Violence? International Criminal Law Review 15:452–484
Ye B (2014) Transitional Justice Through the Cambodian Women’s Hearings. The Cambodia
Law and Policy Journal 3:23–38
Chapter 13
The Grave Breaches Charges at the ECCC:
An Analysis of International Humanitarian
Law in the Duch Case
Noëlle Quénivet
Abstract This chapter examines an issue that has been less discussed, that of the
crimes related to the international armed conflict between Cambodia and Vietnam.
In Duch the Court reluctantly sets itself to the task, finding the appellant guilty of a
range of grave breaches including wilful killing, torture and wilful deprivation of the
rights of fair and regular trial. The judgment can be criticised for a number of reasons,
notably for making comments that lack solid legal support and/or cogent arguments
as well as for misinterpreting the law as it was at the time the crimes were perpetrated.
Keywords War crimes · Grave breaches · Protected persons · Hors de combat ·

Civilian population · Customary international law · Nullum crimen sine lege
Contents
13.1 Introduction........................................................................................................................ 352
13.2 Grave Breaches Provisions in Article 6 ECCC Law/Agreement....................................... 352
13.3 Individual Charges............................................................................................................. 354
13.4 Commentary....................................................................................................................... 357
13.4.1 Principle of Legality and Legal Support................................................................ 357
13.4.2 Application of the Law to the Facts....................................................................... 359
13.4.3 Substantive Law..................................................................................................... 360
13.5 Conclusion......................................................................................................................... 368
References................................................................................................................................... 369
N. Quénivet (*)
International Law and Human Rights Unit, Department of Law,
University of the West of England, Bristol, UK
e-mail: noelle.quenivet@uwe.ac.uk

DOI 10.1007/978-94-6265-105-0_13
354 N. Quénivet
13.1 Introduction
The conviction on 26 July 2010 of Kaing Guek Eva, alias Duch,1 the first Khmer
Rouge official before a court of law recognized internationally is a potent symbol2
of the crimes committed by the Pol Pot regime. Between 1975 and 1979 Duch was
the Deputy and then Chairman of Tuol Seng (also known as Office S-21), ‘a secu-
rity centre tasked with interrogating and executing perceived opponents of the
[Communist Party of Kampuchea]’3 in Phnom Penh. Whilst the great majority of
those detained, interrogated and executed were the victims of the regime’s plan to
annihilate opponents of the Communist Party of Kampuchea some of them were
held in the context of the armed conflict with Vietnam. Indeed, upon arrival some
individuals were classified as either soldiers, civilians or spies. Duch was found
guilty of a number of grave breaches on the basis of Article 6 of the Law on the
Establishment of the Extraordinary Chambers (ECCC Law)4 that enumerates
grave breaches that fall within the jurisdiction of the Court.
The judgment raises a number of crucial points in relation to the principle of
legality. Were the acts for which Duch was convicted crimes at the time of their
commission? After comparing the grave breaches provisions in Article 6 ECCC
Law with other relevant legal instruments, this chapter presents the judgment and
then discusses and criticizes some salient aspects of the ruling.
13.2 Grave Breaches Provisions in Article 6 ECCC

Law/Agreement
Article 6 ECCC Law endows the Court with jurisdiction over grave breaches per-
petrated against protected persons and property under the Geneva Conventions
(GCs) between 17 April 1975 and 6 January 1979. To determine whether the Court
is using the correct law, it is necessary to compare the phraseology of Article 6
ECCC Law with that of the grave breaches provisions in the GCs. Further, as the
Court makes extensive reference to the jurisprudence of the International Criminal
Tribunal for the former Yugoslavia (ICTY)5 a comparison with the ICTY also
seems warranted.
1Judgment, Kaing Guek Eav alias Duch (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July
2010 (hereafter Duch Trial Judgment).
2Wilson 2010–2011, at 476; Sperfeldt 2013, at 1114.
4Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as
promulgated on 27 October 2004 (NS/RKM/1004/006).

5Statute of the ICTY, UN Res 827 (1993), 25 May 1993.
13 The Grave Breaches Charges at the ECCC … 355
The provision lists eight prohibited acts, all falling within the purview of the
third (GC III)6 and fourth (GC IV)7 Geneva Conventions. It repeats verbatim some
of the grave breaches listed in the GCs and the ICTY Statute:
• Wilful killing (Article 130 GC III; Article 147 GC IV; Article 2(a) ICTY
Statute);
• Torture or inhuman(e)8 treatment (Article 130 GC III; Article 147 GC IV;
Article 2(b) ICTY Statute);
• Wilfully causing great suffering or serious injury to body or health (Article 130
GC III; Article 147 GC IV; Article 2(c) ICTY Statute);
• Taking civilians as hostages (Article 147 GC IV; Article 2(h) ICTY Statute).
In relation to three grave breaches, the ECCC Law uses the words ‘civilian(s)’
when the GCs refer to ‘protected persons’, thereby mirroring the ICTY Statute:
• compelling a prisoner of war or a civilian to serve in the forces of a hostile
power (Article 130 GC III for POWs, Article 147 GC IV for ‘protected person’;
Article 2(e) ICTY Statute);
• wilfully depriving a prisoner of war or civilian the rights of fair and regular trial
(Article 130 GC III for POWs; Article 147 GC IV for ‘protected person’; Article
2(f) ICTY Statute);
• unlawful deportation or transfer or unlawful confinement of a civilian (Article
147 GC IV for ‘protected person’; Article 2(g) ICTY Statute).
Article 6 ECCC Law also prohibits the ‘destruction and serious damage to prop-
erty, not justified by military necessity and carried out unlawfully and wantonly’.
Article 147 GC IV and Article 2(d) ICTY Statute however specify that the destruc-
tion needs to be ‘extensive’.9 Another slight difference is that Article 147 GC IV
does not require the damage to property to be ‘serious’. Article 2(d) ICTY Statute
does not refer to damage but covers appropriation.
Missing from Article 6 of the ECCC Law (in contrast to the GCs and the ICTY
Statute) is the reference to biological experiments under torture or inhuman
treatment.10
6Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS
135.
7Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August
1949, 75 UNTS 287.

8For some unexplained reasons Article 6 ECCC Law uses the adjective ‘inhumane’ rather than
‘inhuman’.
9The Court notes this difference in relation to GC IV in footnote 732 of Duch Trial Judgment,
supra note 1.
10The Court notes this difference in relation to the GCs in footnote 732 of Duch Trial Judgment,
supra note 1.
356 N. Quénivet
13.3 Individual Charges
Before assessing whether the defendant perpetrated the acts he was charged with
the Court had to ascertain that the offences listed in Article 6 of the ECCC Law
were crimes at the time they were committed. The Court is satisfied that as both
Cambodia and Vietnam ratified the 1949 Geneva Conventions11 and the conven-
tions provide for a mandatory enforcement mechanism for state parties to hauling
into court individuals having committed acts listed in Articles 130 GC III and 147
GC IV, such acts are considered as criminal at the relevant time.12 The Court also
notes that these provisions reflect the codification of principles of customary inter-
national law recognized in the post-WWII tribunals as well as in subsequent case-
law of the ICTY and the International Court of Justice.13 The Court thus concludes
that the defendant was aware that he could be held criminally liable for such acts14
and asserts that the offences listed in the charges against him were crimes under
international law.15
Further the Court, following a five-pronged test designed by the ICTY, under-
takes to establish that the acts were committed against protected persons in the con-
text of an international armed conflict which was known to the defendant.16 The
Court concludes that as the conflict involved the armed forces of two states,
Vietnam and Cambodia, and the violence consisted of border skirmishes as well as
incursions it could be qualified as an armed conflict of international nature.17
Following the Tadic jurisprudence the Court also stresses that once the armed vio-
lence is classified as an international armed conflict the Geneva Conventions are
applicable to the whole territory of the relevant states and until a general conclusion
of peace is achieved.18 The Court then asserts that the acts of the defendant were
committed in the framework of the international armed conflict19 as the Vietnamese
detainees constituted the largest group of foreign detainees and their confessions
were broadcasted for propaganda purposes20; thus a nexus is established. Since

12Ibid., § 404 and accompanying footnotes. That being said the ‘grave breaches provisions in
the Geneva Conventions are […] insufficiently detailed to work on their own as a criminal code’
and it was thus left to the states to implement national legislation. Öberg 2009, at 166. It must
be noted that Cambodia had not criminalized such acts in its own penal code. Quigley how-
ever argues that war crimes could have been charged thanks to the monist system of Cambodia.
Quigley 2014.
13Duch Trial Judgment, supra note 1, § 405 and accompanying footnotes.
14Ibid., §§ 406–407.
15Ibid., § 408.
16Ibid., § 410.
17Ibid., § 423.
18Ibid., § 415.
19Ibid., § 416.
20Ibid., § 424.
Article 6 of the ECCC Law grants jurisdiction to the Court over acts perpetrated
against protected persons (POWs under GC III and civilians under GC IV) the
Court has to define who falls within that category. As some Vietnamese individuals
were registered as ‘soldiers’ upon arrival it was clear that they were POWs.21 With
regard to the civilians, the Court adopts the expansive definition propounded in
Tadic and subsequent cases whereby allegiance, rather than nationality, is key to
determining whether the individual is to be granted protection under the GC IV.22
As a result, Vietnamese civilians as well as Cambodian nationals, especially those
from the East Zone, deemed to be Vietnamese sympathizers are considered as pro-
tected persons under GC IV.23 Last but not least the Court has to prove that the
defendant was aware that his actions were directed towards protected persons and
linked to the conflict.24 The Court concludes that the defendant knew that such indi-
viduals were being held in the context of the conflict (e.g. confessions) and that
they were protected persons (Vietnamese civilians and POWs and Cambodians con-
sidered to be Vietnamese sympathizers).25
With regard to the individual charges Duch was found guilty of wilful killing,
as defined as ‘murder’ under crimes against humanity (i.e. ‘the death of the victim
resulting from an unlawful act or omission by the perpetrator’),26 for the execu-
tions of POWs and protected persons.27 Further the Court notes that the conditions
in S-21 were such that they inevitably led to the deaths of those detained.28
The Court then examines whether Duch had committed acts of torture and
inhumane treatment as well as wilfully caused great suffering or serious injury to
body or health. The Court, relying on the 1975 United Nations General Assembly
Declaration on Torture29 and the 1984 Convention against Torture,30 defines tor-
ture as an act intended to inflict serious mental or physical suffering and under-
taken for a particular purpose31 by a state official.32 The Court finds that the
Vietnamese detainees were subjected to torture: the threshold of pain was reached
and they were interrogated to elicit information for propaganda and military pur-
poses whilst the Cambodian detainees perceived to be Vietnamese sympathizers
21Ibid., § 425.
22Ibid., § 419.
23Ibid., §§ 425–426.
24Ibid., § 422.
25Ibid., §§ 428–429.
26Ibid., § 331.
27Ibid., §§ 433–437.
28Ibid., § 435.
29Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX), 9 December 1975.

30Convention Against Torture, 10 December 1984, 1465 UNTS 85.
31Duch Trial Judgment, supra note 1, §§ 443 and 453, see also §§ 252–255 and 356.
32Ibid., § 357.
358 N. Quénivet
were also tortured though questioned for the same purpose as other Cambodian
detainees.33 As for the act of wilfully causing great suffering or serious injury to
body or health a certain threshold of suffering or injury must be proven in the
sense that the harm causes ‘a grave and long-term disadvantage to a person’s abil-
ity to lead a normal and constructive life’.34 The detention conditions, e.g. the lack
of access to adequate food35 and medical care,36 fall in the category of wilfully
causing great suffering or serious injury to body or health.37 On the other hand
inhumane treatment is defined as encompassing acts/omissions with the intention
to inflict serious physical/mental suffering or with the intention/recklessness to
commit a (serious) attack on human dignity.38 In fact the Court explains that acts
of torture or wilfully causing great suffering or serious injury to body or health fall
within the broader category of inhumane treatment. In other words ‘inhumane
treatment’ is the minimum threshold for any attack on human dignity.39 The Court
is thus satisfied that the detention conditions40 and the methods to obtain confes-
sions41 were all inhuman treatment inflicted either intentionally or recklessly.
Further the Court finds Duch to have wilfully deprived POWs and civilians of
their rights to a fair and regular trial. After enumerating the various standards
enshrined in the Geneva Conventions42 the Court proceeds to explain that invaria-
bly all detainees were deprived of fair and regular trials: there was no screening of
the captured individuals, no mechanism to inform them of the reasons for their
arrest or enable them to challenge the basis of the decision or appeal against deci-
sion, and extra-judicial executions were carried as a matter of policy.43 Whilst the
Court recognizes that there was no judicial system in place it stresses that S-21
‘functioned as a State institution’ and was thus bound to guarantee the rights
anchored in the GCs.44
Last but not least the Court concludes that Duch had unlawfully confined civil-
ians. With regard to the act itself the Court accepts that the definition of imprison-
ment under Article 5 (chapeau of crimes against humanity) and unlawful
confinement under Article 6 of the ECCC Law are the same. Whilst the Court
acknowledges that the confinement of civilians is allowed under the GC IV it
33Ibid., § 448.
34Ibid., § 454.
35Ibid., §§ 268–269.
36Ibid., §§ 273–274.
37Ibid., § 457.
38Ibid., § 444.
39Ibid., § 453.
40Ibid., § 449.
41Ibid., § 449.
42Ibid., § 459.
43Ibid., § 462 and further examples provided in Sect. 2.4.3 (see in particular § 239).
44Ibid., § 462.
notes that it is limited to situations where there are reasonable grounds to believe
that the deprivation of liberty of the individual would serve the security of the
state.45 Even if the initial internment is lawful the detaining party needs to periodi-
cally review the confinement.46 No doubt those detained in S-21 were ‘intention-
ally and arbitrarily imprisoned without legal basis’47 and deprived of an
opportunity to challenge the detention. The Court also asserts that there were no
security requirements present to justify the detention.48
13.4 Commentary
The Court’s decision can be criticized in three aspects: the dearth of legal support
to justify its reasoning, a rushed application of the law to the facts and some mis-
interpretation or lack of understanding of the complexity and nuances of interna-
tional humanitarian law.
13.4.1 Principle of Legality and Legal Support
Throughout the grave breaches section the Court adopts a consistent approach
towards interpreting the law. It first presents Article 6 of the ECCC Law and then,
when looking at the individual charges, analyses the Geneva Conventions and their
commentaries before turning towards the ICTY case-law (though this is some-
times only done in the footnotes rather than in the judgment itself). Inevitably
‘when the ECCC considers international standards, it must confront the seminal
challenge of defining the state of customary international law during the span of
its temporal jurisdiction’49 and it is an arduous task bearing in mind that the
Khmer Rouge atrocities were perpetrated between the post-WWII trials that could
not use the GCs and hence relied on both CIL as set in pre-WWII cases and the
concept of ‘war crimes’ on the one hand, and major developments in international
criminal law via ad hoc international criminal courts50 in the 1990s on the other.51
Yet, the overreliance on ICTY jurisprudence can be criticised for a number of
reasons.
45Ibid., § 465.
46Ibid., § 465.
47Ibid., § 467.
48Ibid., § 469.
49Kilpatrick 2011, at 672.
50ICTY and ICTR as examples.
360 N. Quénivet
In its discussion on the use of ICTY jurisprudence, the Court appeals to the
principle of legality,52 arguing that ‘[s]pecifically, the Chamber’s reliance on deci-
sions of international tribunals that post-date January 1979 does not contravene the
principle of legality. Rather, these decisions provide interpretative guidance as
regards the evolving status of certain offences and forms of responsibility under
international law.’53 The Court nonetheless does not adduce much legal support
for its assertion,54 especially as the explanation provided by the Court does not
justify the focus on the ICTY case-law; rather, it explains why the Court can use
post-1975 case-law. That being said ‘the ICTY was the first body, domestic or
international, to interpret and apply the grave breaches enshrined in the Geneva
Conventions’55 and as the Court’s discussion on grave breaches is mostly confined
to using the GCs56 it indeed needed additional support.
Nonetheless such support could have been found in further international judi-
cial decisions. For example, the Eritrea-Ethiopia arbitration57 extensively
addresses prisoners of wars and detention conditions in the 1990s58 and expressly
uses the GCs and the relevant rules of international humanitarian customary law of
the time. As to the international case law that pre-dates the implementation of the
Geneva Conventions, i.e. that of the Nuremberg and Tokyo trials, it could have
been used to assist in ascertaining some minimum yardsticks.
Admittedly, relevant national jurisprudence on the implementation of the grave
breaches provisions is rare, yet it does exist59 though in a different form (see
examples provided below) in the sense that national trials are based on domestic
law rather than on a direct application of the GCs and domestic law tends to focus
52See Duch Trial Judgment, supra note 1, §§ 26–34.

53Ibid., § 34.
54This can be criticised as ‘[j]udicial decisions affect the development of the law of armed con-
flict insofar as they address legal lacunae […], as they add flesh to the bare bones of treaty pro-
visions or to skeletal legal concepts […], and as they identify and give legitimacy to new legal
developments, such as emergent custom.’ (Fenrick 1998, at 78). The ICTY jurisprudence fits the
pattern, i.e. it has identified trends in international criminal law.
55Roberts 2009, at 744. In fact the grave breaches system in GCs proved useful at the time of the
adoption of the ICTY Statute ‘when people were grasping at straws to put [international criminal
law] together’. Öberg 2009, at 182.
56Kaufmann and Marschner 2011, at 817.
57See examples provided below.
58It is however true that the arbitration tribunal interprets the GCs from a state responsibility,
rather than an individual liability, perspective. That being said as Eritrea had not ratified the GCs
for a part of time under the temporal jurisdiction of the tribunal, it had to delve into a thorough
analysis of the state of customary international humanitarian law at the time. Prisoners of War
Ethiopia’s Claim 4 (State of Eritrea and Federal Democratic Republic of Ethiopia), Eritrea
Ethiopia Claims Commission, 1 July 2003, §§ 22–33.
59Likewise, though in the context of the ICTY case-law, Brown suggested in 1998 the ICTY to
‘draw upon the accumulated national jurisprudence of states in applying in international humani-
tarian law to criminal tribunals.’ Brown 1998, at 358.
on ‘war crimes’. Yet, writing in 1984 Murphy explains that ‘[i]t has long been rec-
ognized that the acts identified as grave breaches in the Conventions are war
crimes in violation of the laws and customs of war.’60 As a result of this frustrating
lack of engagement with national case-law the Court’s a discussion on the rights
of fair and regular trial is circumscribed to the GCs.
The only occasion where the Court does not follow the case-law of the ICTY is
in relation to torture, for it requires the act of torture to be committed by a public
official.61 Yet again, there is barely any cogent argument being construed by the
Court to explain its stance. After referring to the UNGA Resolution on torture, the
Convention against Torture and ICTY case-law it simply states ‘[t]he Chamber
finds, however, that in 1975, the involvement of a state official was a requirement
for an act to constitute torture under customary international law.’62 Surely, such a
statement would have deserved a thoroughly developed argument, buttressed by
relevant legal support.
13.4.2 Application of the Law to the Facts
The application of the law to the facts is similarly poor. Whilst it is acknowledged
that the Court benefitted from a number of elements that have eased its task in
relation to the determination of the facts a thorough, step by step application of the
law to the facts would have been warranted. Unlike other hybrid/international crim-
inal tribunals, the Court was blessed with a rather cooperative defendant. In fact
although Duch had entered a guilty plea at the outset the Trial Chamber proceeded
to trial. ‘Duch accepted responsibility for most of the allegations against him dur-
ing the majority of his trial’63 even if, in the end he withdrew his guilty plea and
asked to be acquitted.64 The Court could thus rely on agreed facts and statements of
the accused throughout the trial. The defence did not really challenge the facts or
‘the nature of the evidence being brought against Duch’65 but it remains that the
Court should have properly presented and linked the law and the facts.
60Murphy 1984, at 42. As Öberg and Murphy explain separately, the concept of ‘war crimes’
encompasses more offences than the ones listed in the Geneva Conventions. Öberg 2009 and
Murphy, at 43.
61Duch Trial Judgment, supra note 1, § 357 and see discussion below.
62Ibid., § 357.
63Open Society Justice Initiative, ‘Recent Developments at the Extraordinary Chambers in the
Courts of Cambodia, June 2011 Update’ (2011), available at http://www.opensocietyfoundat

ions.org/sites/default/files/cambodia-eccc-20110614.pdf (visited 15 June 2015), at 25. See also
Ehteshamul Bari 2011, at 201.
64Dubler 2010, at 248.
65‘Lessons Learned from the “Duch” Trial. A Comprehensive Review of the First Case before
the Extraordinary Chambers in the Courts of Cambodia’, December 2009, Report of the Asian
International Justice Initiative’s KRT Trial Monitoring Group, at 6.
362 N. Quénivet
Moreover the Court finds it unnecessary to provide much explanation or many

examples in the section on grave breaches, ‘relying substantially on the facts
assessed through its crimes against humanity analysis’.66 For instance examples of
torture are listed in paragraphs 241–247 as well as in paragraph 360 whilst
Sect. 2.4.5. details the condition of detention. References are often, though not
always, made to the relevant sections and paragraphs in the discussion on crimes
against humanity. Nonetheless, the discussion on inhuman treatment only refers to
‘general conditions of detention’67 when it should have referred to the lack of san-
itation and hygiene which are particularly relevant in relation to human dignity.
Overall the section on grave breaches conveys the impression that the court was
not interested in tackling this type of offence. Yet, it was necessary to introduce a
grave breaches charge as members of the Vietnamese armed forces detained in
S-21 cannot be considered as ‘civilians’ in the crimes against humanity category.
That being said, the Court does not distinguish between them and Vietnamese
civilians (see discussion below). Moreover, the Court does not seem to make any
effort to differentiate acts inflicted upon individuals as grave breaches or as crimes
against humanity. In fact the attitude of the Court of referring to crimes against
humanity to describe grave breaches (definition and application) is rather cavalier.
Examples such as ‘elements of the offence of wilful killing under Article 6 of the
ECCC Law are the same as those of murder under Article 5 of the ECCC Law’
and ‘the elements of the offence of torture under Article 6 of the ECCC Law are
the same as those of torture under Article 5 of the ECCC Law’ abound. Again this
leads in some instances to inaccuracies in stating and applying the law (see discus-
sion below).
13.4.3 Substantive Law
In order for the grave breaches provision to apply the acts must have been perpe-
trated in the context of an international armed conflict. To define an international
armed conflict the Court reiterates Common Article 2 GCs and its commentary as
well as uses the ICTY interpretation of this provision.68 The Court has been criti-
cized for drawing the conclusion that a conflict existed between 1975–1978: ‘In
the latter part of the Khmer Rouge period, to be sure, there were hostilities along
the border with Vietnam, but prior to the December 1978 Vietnam troop entry that
quickly drove the Khmer Rouge from power, there were no Vietnamese troops in
Cambodia.’69 Similarly Duch argued that he ‘acknowledg[ed] that DK and
Vietnam were in armed conflict from 31 December 1977, but alleged that the

68See Ibid., footnotes 750–751.
69Quigley 2014.
existence of an armed conflict before late 1977 remained uncertain’.70 Relatedly, it

must be reiterated that the GCs have an extremely low threshold of application,71
covering a range of situations.72 As the commentary explains: ‘[i]t makes no dif-
ference how long the conflict lasts, or how much slaughter takes place. The respect
due to the human person as such is not measured by the number of victims.’73
‘The occurrence of de facto hostilities is sufficient’74 to trigger the applicability of
the Geneva Conventions. As Best explains ‘[t]his process of substitution of “armed
conflict” for war was begun and carried far already in 1949 because it was then
felt desirable, by the great majority of states represented at the Convention-making
conference to make the protections operational whenever a war was going on in all
but name’.75 In fact there were military confrontations between the armed forces
of Cambodia and Vietnam,76 raids and incursions from Vietnamese armed forces
into Cambodian provinces,77 border clashes78 etc. from 1975 onwards and from
January 1977 onwards Cambodian raids into Vietnamese territory.79 The Group of
Experts for Cambodia80 correctly stated that whilst the armed conflict properly
started in September 1977 there were border skirmishes from May 1975 onwards
and a number of incidents that render the GCs applicable.81 The Court’s finding on
the violence being an international armed conflict is correct and this is particularly
important as the four (now two) accused in Case 002/02 have been charged with
grave breaches of the GCs.82
For the grave breaches regime to apply the acts must have been committed
against protected persons. Whilst the GC III does not refer to the nationality of the

71Dinstein correctly explains that the international humanitarian law ‘is brought to bear upon the
conduct of hostilities between sovereign States, even if these hostilities fall short of war, namely
constitute a mere incident’. Dinstein 2004, at 15–16. See also US, Plaintiff, v Manuel Antonio
Noriega, Defendant, US District Court for the Southern District of Florida, 808 F. Supp. 791
(1992), Opinion by William M Hoeveler, 8 December 1992, Sassòli et al. 2011, Case No. 158.
72Dürr 1987, at 265.
73Pictet 1952, at 20–21. See also Murphy 1984, at 21.
74Pictet 1958, at 51.
75Best 1984, at 33.
77Ibid., § 67; Closing Order, Case No. 002/19-09-2007-ECCC-OCIJ-D427, Office of the
Co-Investigating Judges, 15 September 2010, §§ 150–155 (hereafter ‘Closing Order Case 002’),
§ 153.
78Duch Trial Judgment, supra note 1, § 69; Closing Order Case 002, supra note 77, § 152.
80For an overview of its work, see Ratner 1999, 948–953.
81Report of the Group of Experts for Cambodia Established pursuant to General Assembly
Resolution 52/1325, 18 February 1999, § 73.

82The Co-Investigating Judges reiterate the international nature of the armed conflict in the
Closing order on Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith. Closing Order Case
002, supra note 77, §§ 150–155.
364 N. Quénivet
prisoner of war, Article 4 GC IV explicitly considers protected persons as those

who ‘find themselves, in case of a conflict or occupation, in the hands of a Party to
the conflict of Occupying Power of which they are not nationals’. The Court refers
to ‘345 as Vietnamese, of whom 122 are described as Vietnamese soldiers, 144 as
Vietnamese spies while for the remaining 79, who were presumably civilians, no
description is provided’.83 Cayley reiterates that ‘Vietnamese civilians were also
captured in combat and sent to the S-21 prison’.84 Undeniably Vietnamese nation-
als fall within the remit of the protection offered by either GC III (soldiers,85
spies86) or GC IV (presumed civilians,87 spies) as ‘nobody in enemy’s hand can be
outside the law.’88
Overall over 12,000 individuals were detained and executed89 and it is unclear
how many Cambodians were detained in relation to the conflict. For the
Cambodians to be considered as protected persons, one needs to ascertain whether
Cambodians can be POWs or civilians within the meaning of GC III and GC IV
respectively. The question of nationality arises both in the case of POWs and civil-
ian detainees. It has long been debated as to whether an individual from the same
nationality as the detaining power could be a POW. With regard to POW it seems
that nationality is not significant90 (despite some contrary judgments)91 but this is
not even discussed in the judgment (nor was it by the ICTY92). In fact it is unclear
whether any Cambodians were taken as POWs. Whilst paragraph 141 (in the sec-
tion presenting S-21) refers to 328 soldiers in the Khmer Republic Army (‘KRA’)
it is unclear whether they were detained for fighting on the Vietnamese side or for
other reasons. In any case such individuals are not mentioned in the section on
grave breaches and their status should have warranted a couple of lines at least.
The better view is that they were detained as a result of a non-international armed
conflict opposing KRA to the Khmer Rouge and thus not protected persons within
the meaning of the Geneva Conventions.

84Cayley 2012, at 450.
85See also Closing Order Case 002, supra note 77, § 1481.
86‘The Accused stated that “spies” were classified as such on order of his superiors but were in
fact either civilians or combatants’. Duch Trial Judgment, supra note 1, § 425.
87See also Closing Order Case 002, supra note 77, § 1481.
88Pictet 1958, at 51.
90See e.g. Supreme Court of the United States, Ex Parte Quirin, et al. v Cox, Provost Marshal,
317 US 1 (1942), Chief Justice Stone (published in Sassòli et al. 2011, Case No. 99); In re
Territo, 156 F.2d 142 (9th Cir. 1946). See also discussion in Ka Ho 2009, at 395. Solis notes that
‘nonallegiance is not cited in texts as a precondition for POW status.’ Solis 2010, at 197.
91Judicial Committee of the Privy Council (UK), Public Prosecutor v Oie Hee Koi and
Connected Appeals, 4 December 1967 [1968] AC 829, Lord Hodson. See discussions of the case
in Ka Ho 2009 and Dinstein 2004, at 40–41.
92Ka Ho 2009, at 407–408.
It thus appears that the Court considers that Cambodians held in relation to the
conflict were all civilians. In this case, the Court espouses the expansive definition
propounded by the ICTY in the Tadic93 and subsequent cases inasmuch as it
focuses on allegiance rather than on the legal bound of nationality.94 It is questiona-
ble whether this was the case in 1975 in particular as the ICTY draws its conclu-
sion based on the humanisation of humanitarian law95 (which happened at a later
stage)96 and the complexity of modern-day ethnic conflict97 (not really the case
here as it is a straight forward case of conflict between two states).98 This stands in
stark contrast to the 1999 report of the Group of Experts for Cambodia which states
not only that the GC IV protects Vietnamese in Vietnam and Cambodia during the
armed conflict99 but also that ‘[a]s most ethnic Vietnamese in Cambodia were resi-
dents rather than Cambodian citizens, the Conventions would protect them’.100 For
the group of Experts, nationality was the key criterion. Further support is lent by
appraising Additional Protocol I which was drafted at the exact time when the
impugned acts were being perpetrated. Whilst AP I (see Articles 11(4) and 85(2)
AP I) expands the content of the categories of ‘protected persons’ it does not
include the state party’s own nationals.101 In 1984 Best wrote that the Conventions
were there ‘for the protection of the civilian once his own government is no longer
able to provide that protection and for the security of his means of survival, the
maintenance of essential services and the protection of the medical, civil defense
and emergency-relief personnel who should be there to look after him’.102 In 1973
Burwell contended that ‘in practice the Convention has not been applied to civilians
expressly excluded by its provisions’.103 In other words the protection was not
offered to the nationals of the detaining power.104 Even during the proceedings
93Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1-I),
Appeals Chamber, 2 October 1995, § 76; Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15
July 1999, §§ 164–166 (hereafter Tadić Appeal Judgment). See discussion in S. Darcy, Judges,
Law and War: The Judicial Development of International Humanitarian Law (Cambridge:
Cambridge University Press, 2014), at 121.
94See discussion in Dingwall 2004, at 141–142.
95Tadić Appeal Judgment, supra note 93, § 168; Judgment, Delalić et al. (Case No. IT-96-21-T),
Trial Chamber, 16 November 1998, § 263.

96See e.g. Meron 2000, at 239–278.
97Tadić Appeal Judgment, supra note 93, § 166. See discussion in Brown, supra note 59, at 400.
98Interestingly this is noted by the Co-Investigating Judges in Closing Order Case 002, supra
note 77, § 1482.

99Report of the Group of Experts for Cambodia, supra note 81, § 73.
100Ibid.
101Öberg 2009, at 174.
102Best 1984, at 34.
103Burwell 1973–1974, at 133.
104Solis explains that the ‘nationality requirement was included in Article 4 to ensure […]
non-interference.’ Solis 2010, at 235.

366 N. Quénivet
before the ICTY the interpretation of the phrase ‘of which they are not nationals’
was the subject of debates.105 Yet, the ICTY ruled rather controversially106 that
‘already in 1949 the legal bond of nationality was not regarded as crucial’.107 In the
absence of a broad definition of nationality as seen for example in the ICTY this
means that Cambodian nationals would not fall within the scope of GC III or GC
IV.108 As Article 75 AP I did not exist at the time and its customary nature for the
period 1975–79 might be doubted such individuals are not covered by international
humanitarian law at all.109 Hence the ICTY’s broad interpretation of the concept of
‘nationals’ enabled the Court to declare that Cambodians viewed as Vietnamese
sympathizers were protected persons under the GC IV.
Relatedly, the Court fails to cogently argue that Duch knew that they were pro-
tected persons. The fact that ‘[h]e knew of the ongoing purges of Cambodian
nationals on account of their perceived allegiance with Vietnam, as well as Son
Sen’s battlefield deployment in August 1977’110 does not mean that he considered
such individuals any differently from other Cambodian nationals. Remarkably, the
Co-Investigating Judges in Closing Order to Case 002 did ‘consider that the con-
cept [of ‘allegiance test’] would have been insufficiently accessible and foreseea-
ble to any of the Charged Persons’.111 It is even more surprising and rather
disconcerting that the Court admits, albeit without drawing any logical conclu-
sions, that Vietnamese sympathizers were tortured in the same way and for the
same purpose as other Cambodian detainees,112 thereby proving that Duch did not
consider these individuals as different from other Cambodian nationals. The Court
can therefore be criticized for drawing rather unpersuasive conclusions.
In addition the Court seems to conveniently lump up together POWs, protected
under GC III, and civilians, protected under GC IV, as ‘protected persons’.113 For
example the Court refers to ‘345 Vietnamese prisoners of war and civilians’ as
protected persons,114 ‘Vietnamese and other protected persons’,115 ‘Vietnamese
105See discussion in Roberts 2009, at 753–755.

106See discussion in Solis 2010, at 236.
108This has particular consequences, notably in relation to the charge of unlawful confinement
of civilians. As Dingwall explains ‘there are no explicit restrictions imposed by international

humanitarian law upon belligerents detaining their own nationals in the context of an interna-
tional armed conflict’. Dingwall, at 139–142.
109Indeed a ‘traditional interpretation of protected persons seemingly gives a government the
ability to commit an atrocity listed in Article 147 against their own nationals without conse-
quence or international criminal culpability’. Reeves 2009, at 24. See also Solis 2010, at 236.
113In contrast the Co-Investigating Judges clearly distinguish between Vietnamese individuals fall-
ing within the remit of either GC III or GC IV. Closing Order Case 002, supra note 77, § 1481.
114Duch Trial Judgment, supra note 1, §§ 425 and 433.
115Ibid., § 457.
detainees’,116 ‘a large number of other protected persons’,117 ‘Vietnamese prison-

ers’,118 etc. and the only concrete, specific mention of POWs is on paragraph 447.
Whilst it is acknowledged that the crime of wilfully depriving a person the rights
of fair and regular trial draws the two groups together the other charges do not.
‘Status determination is extremely important when one makes decisions with
respect to treatment and interrogation matters.’119 As a matter of fact, the Court
does not take the time to explain that the detained Vietnamese soldiers are POWs
as per Article 5 GC III. This lack of determination leads to the odd result that the
Court refers to ‘Vietnamese soldiers detained at the S-21 complex’120 when such
individuals should have clearly been viewed as POWs. Combined with the wide
definition of protected persons this conveys the odd impression that the Court was
keen on focusing on Cambodian, rather than Vietnamese, victims. On the other
hand the idea of POW was, as Levie pointed out, rather alien to communist
states121—and that, of course, includes Cambodia in the 1975–1979 period—as
they disputed POW status upon capture. As a result of this lack of clear distinction
between POWs and civilians the Court is not in a position to use the rich case-law
protecting the former that includes (1) the prohibition of killing POWs,122 (2) the
obligation to treat POWs in a humane manner123 and protect them from acts of
violence, corporal punishment and acts of cruelty,124 (3) the duty to ensure that
POWs are detained in camps that do not endanger their health125 and (4) the obli-
gation to provide them with sufficient food126 and adequate medical care.127
116Ibid., §§ 436, 446, 447, 448, 449.

117Ibid., § 463.
118Ibid., § 446.
119Graham 2005–2006, at 61.
121Levie 1998, at 461, 1969, at 361–368. See also Rosas 1987, at 230.
122US Military Tribunal, US v Ernst von Weizsaecker et al. (The Ministries Case), Nuremberg,
11–13 April 1949, 14 TWC 308 (Count 3) (published in Sassòli et al. 2011, Case No. 95);
Dreierwalde Case, 1 War Crimes Rep 81, 86 as reported in Levie 1962, at 445 at footnote 45; US
Court of Military Appeals, United States, Appellee v William L Calley, Jr., First Lieutenant, US
Army, Appellant, 22 USCMA 534, 21 December 1973, Judge Quinn.
123Prisoners of War Eritrea’s Claim 17 (State of Eritrea and Federal Democratic Republic of
Ethiopia), Eritrea Ethiopia Claims Commission, 1 July 2003, §§ 81–86; Prisoners of War
Ethiopia’s Claim 4, supra note 58, §§ 82–86.
124Such an obligation is the ‘expression of the accepted views of civilized nations’. United States
v von Leeb and others (The High Command Case), 11 TWC 462, 27–28 October 1948, (pub-
lished in Sassòli et al. 2011, Case No. 97).
125Prisoners of War Eritrea’s Claim 17, supra note 123, §§ 92–105; Prisoners of War Ethiopia’s
Claim 4, supra note 58, §§ 92–100.

126Prisoners of War Eritrea’s Claim 17, supra note 123, §§ 106–114.
127Prisoners of War Eritrea’s Claim 17, supra note 123, §§ 128–138; Prisoners of War Ethiopia’s
Claim 4, supra note 58, §§ 104–107.

368 N. Quénivet
Whilst the Court almost religiously follows the jurisprudence of the ICTY it
differs in one regard, the definition of the concept of ‘torture’. Although torture
has long been prohibited under international humanitarian law128 it has been nei-
ther defined in international humanitarian legal instruments nor in the case-law of
the post-WWII tribunals.129 As a result, human rights law, whose legal instruments
offer a variety of definitions, is often used to fill in the gap.130 Torture is generally
understood as severe pain or suffering, inflicted for a specific purpose by a state
official—the latter being the bone of contention. That torture, which covers mental
as well as physical torture,131 reaches a threshold beyond inhumane treatment132 is
beyond contention.133 The Court explains that staff of S-21 were trained in the use
of physical and psychological violence.134 Similarly there is hardly any disagree-
ment that torture is inflicted for a specific purpose.135 ‘Torture’ for sheer sadism,
rather, falls under wilfully causing great suffering or serious injury to body or
health.136 Usually the aim of torture is to obtain information or force a person to
confess to certain activities but there is no enumerative, close list to such effect
since Article 1 of the Convention against Torture uses the expression ‘for such pur-
poses as’. In S-21 the detainees had to be kept until the confessions were consid-
ered as complete137 and such confessions were used for propaganda purposes.
Where the Court adopts a different interpretation of the notion of torture from
the one used by the ICTY is in relation to the fact that in its view torture must be
applied by a state official. The Court refers to the 1975 UN General Assembly
Declaration on Torture and the 1984 Convention against Torture (CAT) which
requires that the act of torture be undertaken at the instigation of a public official
or ‘other person acting in an official capacity’, or with that person’s consent or
acquiescence. The Court justifies its choice for such legal support by explaining
that the CAT definition ‘closely mirrors that of the 1975 General Assembly
128‘Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake
of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort
confessions.’ Article 16 of the Lieber Code. The ‘Instructions for the Government of Armies of
the United States in the Field’ were promulgated as General Orders Number 100 by President
Lincoln on 24 April 1863, in Schindler and Toman 2004, at 3–20.
129This is so because the Charter to the London Agreement did not include ‘torture’. See discus-
sion in Draper 1976, at 222–223.

130Draper 1976, at 223 and 230–231.
131Solis 2010, at 442; Pictet 1958, at 598.
132That being said, ‘[i]t is difficult in practice to draw a clear line between the thresholds of suf-
fering’. Droege 2007, at 519.

133See Van der Vyver 2003, at 447.
135The Commentary stresses that ‘[w]hat is important is not so much the pain itself as the pur-
pose behind its infliction.’ Pictet 1958, at 598.

136In contrast Levie argues that torture can also be done out of sheer sadism, thereby being
motiveless. Levie 1962, at 447–448.

Declaration’ and ‘has been accepted by the ICTY as being declaratory of custom-
ary international law’.138 It might be but the Court fails to acknowledge139 that
whilst the ICTY had initially retained that definition140 it abandoned that element
in subsequent judgments.141 The Court concludes ‘that in 1975, the involvement
of a state official was a requirement for an act to constitute torture under custom-
ary international law.’142 First, it might be argued that the definition in the 1975
Declaration was unduly restrictive and did not reflect the state of customary inter-
national law at the time. In its analysis of the discussions leading to the
Declaration, Klayman seems unable to explain the rationale for the inclusion of
this requirement.143 Second, and more significantly, the Court fails to consider that
international humanitarian law and human rights law might differ in their defini-
tions of torture. For example, the 1958 Commentary to the GC IV argues that ‘it
seems that it must be given here its, so to speak, legal meaning-i.e., the infliction
of suffering on a person to obtain from that person, or from another person, con-
fessions or information.’144 What is even more astonishing is that whilst the Court
quotes the definitions of ‘inhuman treatment’145 and ‘wilfully causing great suffer-
ing’146 as per Commentary of the GC IV it does not do so with regard to the defi-
nition of torture, perhaps because the discussion on the definition of torture is
located under the crimes against humanity section (2.5.3.7). Yet, this does not
exonerate the Court from appraising the international humanitarian law definition
of torture. The narrow focus of the Torture Convention, in contrast to that in inter-
national humanitarian law, has been criticized.147 Rather conveniently, because
Duch was deemed to be a State official, the Court found him guilty of torture as a
grave breach.
With regard to the detention and confinement of civilians the Court makes a
range of assertions without looking into the topic in much depth, e.g. ‘detainees
were intentionally and arbitrarily imprisoned without legal basis… This was also
138Ibid.,§ 353. Van der Vyver explains that ‘there is a tendency to regard the definition of torture
contained in the Torture Convention as reflecting a consensus “representative of customary inter-
national law”.’ Van der Vyver 2003, at 432.
140See e.g. Judgment, Furundžija (Case IT-95-17/1), Trial Chamber, 10 December 1998, § 162.
141See e.g. Judgment, Kunarać (Case IT-96-23 & IT-96-23/1), Trial Chamber, 22 February 2001,
§§ 491 and 493. ‘The definition of torture in the ICTY jurisprudence is particularly notable in
that it excludes the requirement, found in Article 1 of the Torture Convention, that at least one of
the persons involved in the torture process must be a public official or must at any rate act in an
official capacity.’ Roberts 2009, at 757.
143Klayman 1978, at 475–485.
144Pictet 1958, at 598.
146Ibid., § 452.
147See discussion on the travaux préparatoires in Sharvit 1984, at 166.
370 N. Quénivet
true of no fewer than 79 Vietnamese civilians, as well as the large number of other
protected civilians detained within the S-21 complex’.148 Whilst POWs are held to
prevent them from further participation in the conflict149 civilians can only be
interned ‘if the security of the Detaining Power makes it absolutely necessary’ and
‘for imperative reasons of security’,150 a prohibition repeated in the Eritrea-
Ethiopia partial award.151 As Hampson stresses ‘Article 41 makes it clear that
internment is a measure of last resort; a state may not have recourse to any other
measure of control more severe than that of internment’.152
The Court claims that no reasonable grounds justifying the detention were
established153 and there were no ‘factors indicating that the security of Cambodia
required their internment’.154 The Court however does not make any attempts at
investigating whether there were any such factors. Instead, the Court iterates that
‘[a]mong the detainees were young children and babies, as well as others who
objectively, could not have been guilty of any offence.’155 This however does not
justify neglecting an examination of the situations of individuals not falling within
the categories mentioned by the Court. Bearing in mind that civilians were ill-
treated in order to obtain information or confessions, the Court could have taken
this opportunity to stress that ‘an individual’s possession of information does not
constitute a valid security rationale for internment under the Civilians
Convention’.156
13.5 Conclusion
The prosecution of Duch was welcome by the local and international community
at large because he was the first official of the Communist Party of Kampuchea to
be hauled into a court that offered him a proper trial meeting many of the inter-
national standards set by previous international criminal tribunals. Yet, besides
issues relating to the principle of legality, weak legal support, and the timid and
rushed application of the law, the section on the grave breaches of the Geneva
Conventions reveals that the Court is missing some of the subtleties and nuances
of international humanitarian law. First the Court often fails to distinguish between

149Levie 1962, at 373.
150Article 42 GC IV.
151Civilian Claims, Eritrea’s Claims 15, 16, 23 & 27–32 (State of Eritrea and Federal Democratic
Republic of Ethiopia), Eritrea Ethiopia Claims Commission, 17 December 2004, § 121.

152Hampson 1991, at 510.
154Ibid., § 469.
155Ibid., § 238.
156Goodman 2009, at 378.
POWs and civilians protected by GC III and GC IV respectively. Second, it is

questionable that the ‘allegiance’ in contrast to the ‘nationality’ test is the relevant
way to determine whether civilians fall within the ambit of GC IV. Third, torture
is defined by reference to human rights rather than international humanitarian law
instruments, thereby requiring the act to be carried out by a State official. Fourth,
on a number of occasions the Court misses opportunities to elaborate on the law or
apply the law in a logical and consequent manner.
Overall, the section conveys the impression that the Court considered it tire-
some to present and apply the grave breaches provisions to the acts committed by
Duch whose guilt is considered manifest. Further, the Court, by paying much more
heed to the section on crimes against humanity, appears to have made a deliberate
choice of categorising the crimes committed between 1975 and 1979 as crimes
against humanity rather than crimes perpetrated in the context of an armed con-
flict. This approach is reflected in Case 002 too. For example the wide definition
of the concept of ‘civilian’ adopted in the judgment in Case 002/01 illustrates the
Court’s questionable approach. Indeed the Court appears to have intentionally
described as ‘civilian’ a group of individuals of overwhelmingly military affilia-
tion (‘soldiers’), targeted owing to their link to the previous regime.157 Whilst such
interpretation may be influenced by the lack of rationae materiae158 and rationae
temporis159 jurisdiction over such crimes as ones linked to an armed conflict that
pitted the Khmer Rouge and the KRA the feeling remains that the Court was keen
on proving that acts of the Khmer Rouge fell within the category of crimes against
humanity. After all, Cambodia in 1975–1978 is sadly known for its ‘genocide’.
The second trial of Nuon Chea and Khieu Samphan (Case 002/02) which started
on 17 October 2014 will no doubt be an opportunity for the Court to develop its
jurisprudence on grave breaches charges.
References
Best G (1984) Civilians in Contemporary Wars. A Problem in Ethics, Law and Fact. Air
University Review 35: 29–40
Brown B (1998) Nationality and Internationality in International Humanitarian Law. Stanford
Burwell D (1973–1974) Civilian Protection in Modern Warfare: A Critical Analysis of the
Geneva Civilian Convention of 1949.Virginia Journal of International Law 14:123–150
157See paragraphs 185–187 on the definition of a civilian and paragraphs 682–687 on the appli-
cation law, Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber,
7 August 2014.
158The confrontation between the Khmer Rouge and the KRA is likely to qualify as a non-
international armed conflict under Common Article 3 to the Geneva Conventions. The Court has
only jurisdiction over acts perpetrated in the context of an international armed conflict (Article 6
ECCC Law).
159The jurisdiction of the Court is limited to acts perpetrated between 17 April 1975 and
6 January 1979 (Article 2 ECCC Law).

372 N. Quénivet
Cayley A (2012) Prosecuting Mass Atrocities at the Extraordinary Chambers in the Courts of
Cambodia (ECCC). Washington University Global Studies Law Review 11:445–459
Dingwall J (2004) Unlawful Confinement as a War Crime: The Jurisprudence of the Yugoslav
Tribunal and the Common Core of International Humanitarian Law Applicable to
Contemporary Armed Conflicts. Journal of Conflict and Security Law 9:133–179
Dinstein Y (2004) The Conduct of Hostilities under the Law of International Armed Conflict, 1st
ed. Cambridge University Press, Cambridge
Öberg D (2009) The Absorption of Grave Breaches into War Crimes Law. International Review
of the Red Cross 91:163–183
Draper G (1976) The Juridical Aspects of Torture. Acta Juridica 221–232
Droege C (2007) In Truth the Leitmotiv: The Prohibition of Torture and other Forms of Ill-
Treatment in International Humanitarian Law. International Review of the Red Cross
89:515–541
Dubler R (2010) Kaing Guek Eav alias Duch, Judgment, ECCC, Case No 001/18-07-2007/
ECCC/TC (26 July 2010). Australian International Law Journal 17:247–252
Dürr O (1987) Humanitarian Law of Armed Conflict: Problems of Applicability. Journal of Peace
Research 24:263–273
Ehteshamul Bari M (2011) Dispensation of Justice by the Extraordinary Chambers in the Courts
of Cambodia: A Critical Appraisal. Journal of East Asia and International Law 4:193–216
Fenrick W (1998) The Development of the Law of Armed Conflict through the Jurisprudence
of the International Criminal Tribunal for the Former Yugoslavia. In: Schmitt M, Green L
(eds) The Law of Armed Conflict: Into the Next Millennium. Naval War College, Newport,
pp 77–118
Goodman R (2009) Rationales for Detention: Security Threats and Intelligence Value. In Schmitt
M (ed) The War in Afghanistan: A Legal Analysis. Naval War College, Newport, pp 371–383
Graham D (2005–2006) The Treatment and Interrogation of Prisoners of War and Detainees.
Georgetown Journal of International Law 37:61–93
Hampson F (1991) The Geneva Conventions and the Detention of Civilians and Alleged
Prisoners of War. Public Law, 507–522
Ka Ho T (2009) The Relevancy of Nationality to the Right to Prisoner of War Status. Chinese
Kaufmann C, Marschner L (2011) Eine kritische Bestandsaufnahme aktueller Entwicklungen
der Außerordentlichen Kammern an den Gerichten von Kambodscha. Zeitschrift für
Internationale Strafrechtsdogmatik 10:811–821
Kilpatrick R (2011) Prosecutor v. Kaing Guek Eav alias Duch: In First Round of Proceedings,
the Extraordinary Chambers in the Courts of Cambodia Convicts Former Chairman of
Khmer Rouge Interrogation Centre of Atrocity Crimes. Tulane Journal of International and
Comparative Law 19:669–690
Klayman B (1978) The Definition of Torture in International Law. Temple Law Quarterly
51:449–517
Levie H (1962) Penal Sanctions for Maltreatment of Prisoners of War. American Journal of
International Law 56:433–468
Levie H (1969) Maltreatment of Prisoners of War in Vietnam. In: Falk R (ed), The Vietnam War
and International Law, Princeton University Press, Princeton, pp 361–398
Levie H (1998) Enforcing the Third Geneva Convention on the Humanitarian Treatment of
Prisoners of War. United States Air Force Academy Journal of Legal Studies 7. Reprinted
in: Schmitt M, Green L (eds) Levie on the Law of War. Naval War College, Newport,
pp 459–467
Meron T (2000) The Humanization of Humanitarian Law. American Journal of International Law
94:239–278
Murphy T (1984) Sanctions and Enforcement of the Humanitarian Law of the Four Geneva
Conventions of 1949 and Geneva Protocol I of 1977. Military Law Review 103:3–77
Pictet J (1952) Commentary to the First 1949 Geneva Conventions. International Committee of
the Red Cross, Geneva
Pictet J (ed) (1958) Commentary: IV Geneva Convention, Relative to the Protection of Civilian
Person in Times of War. International Committee of the Red Cross, Geneva
Quigley J (2014) The Cambodian Hybrid Court Is Prosecuting for the Wrong Offenses: A
Review Essay. Public Law and Legal Theory Working Paper Series, No 25, Ohio State
University Moritz College of Law
Ratner S (1999) The United Nations Group of Experts for Cambodia. American Journal of
Reeves S (2009) The Expansive Definition of ‘Protected Persons’ in War Crime Jurisprudence.
Army Lawyer 23–28
Roberts K (2009) The Contribution of the ICTY to the Grave Breaches Regime. Journal of
Rosas A (1987) The Frontiers of International Humanitarian Law. Journal of Peace Research
24:219–236
Sassòli M, Bouvier A, Quintin A (2011) How Does Law Protect in War? Cases, Documents and
Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol.2,
3rd edn. International Committee of the Red Cross, Geneva
Schindler D, Toman J (2004) The Laws of Armed Conflicts: A Collection of Conventions,
Resolutions and other Documents, 4th edn. Martinus Nijhoff, Leiden
Sharvit P (1984) The Definition of Torture in the United Nations Convention against Torture and
other Cruel, Inhuman and Degrading Treatment or Punishment. Israel Yearbook on Human
Rights 23:147–175
Solis G (2010) The Law of Armed Conflict. International Humanitarian Law in War. Cambridge
Sperfeldt C (2013) From the Margins of Internationalized Criminal Justice. Lessons Learned at
the Extraordinary Chambers in the Courts of Cambodia. Journal of International Criminal
Justice 11:1111–1137
Van der Vyver J (2003) Torture as a Crime under International Law. Albany Law Review
67:427–463
Wilson P (2010–2011) Observations of the Cambodia Trial of ‘Duch’. Current Issues in Criminal
Justice 22:473–482
Chapter 14
Past Crimes and the Effect of Statutory
Limitations on the ECCC
David Boyle
Abstract The ECCC judicial bodies have not yet ben able to provide substantive
responses to all of the statutory limitations issues raised in the cases before them.
However, a number of applicable principles have been enunciated, both as regards
domestic and international crimes. Despite the specificities of the civil law inspired
procedural rules before the ECCC, this jurisprudence makes a unique contribution
to debate on the evolution over time of customary rules concerning statutory limi-
tations in the context of international tribunals. It may be hoped that these princi-
ples will allow the outstanding issues to be resolved in cases still pending before
the ECCC.
Keywords International crimes · Statutory limitations · Fair trial · Domestic

prosecution · Human rights
Contents
14.1 Introduction........................................................................................................................ 374
14.2 The Statute of Limitations for Domestic Crimes Within ECCC Jurisdiction.................... 374
14.2.1 Proceedings Concerning Statutory Limitations Before the ECCC.......................... 376
14.2.2 Interruption or Suspension of the 10-Year Statutory Limitation
Under the 1956 Penal Code..................................................................................... 377
14.2.3 Extension (or Re-instatement) of Limitation Periods in Light
of National and International Standards................................................................... 378
The author is an Attorney admitted in France and former Legal Officer of the Office of the
Co-Investigating Judges (ECCC).
D. Boyle (*)
University of Paris, Paris, France
e-mail: david_boyle@me.com

DOI 10.1007/978-94-6265-105-0_14
376 D. Boyle
14.3 The Non-application of Statutory Limitations to International Crimes............................. 379

14.4 Conclusion......................................................................................................................... 382
References................................................................................................................................... 383
14.1 Introduction
The extent to which ‘statutory limitations’ having the effect of time-barring

criminal prosecutions may affect proceedings before the Extraordinary Chambers
in the Courts of Cambodia (ECCC) depends on a number of unique features of
the Tribunal itself, in particular: its hybrid nature as a ‘stand-alone’ judicial
body within the Cambodian judicial system; its hybrid subject matter jurisdic-
tion including both domestic and international crimes; and the need to interpret
Cambodia’s civil law inspired procedure in light of international fair trial stand-
ards, including the requirement to apply international law as it existed between
1975 and 1979. As regards the domestic crimes within the jurisdiction of the
ECCC (Sect. 14.2), a range of issues has arisen relating to the interruption, sus-
pension or extension of existing domestic law limitation periods in the light of
Cambodian and international fair trial rights, in particular the principle of legality.
As for international crimes (Sect. 14.3), the key issue has been to determine the
state of evolution of customary international law relating to the non-application of
statutory limitations between 1975 and 1979.
The ECCC judicial bodies have not yet provided substantive responses to many
of these questions, due in part to the Tribunal’s hybrid decision-making process1
and the factual specificity of the cases themselves. Where important issues have
not yet been resolved, this contribution will summarise the arguments raised by
the parties and any relevant principles laid down by the judicial bodies.
14.2 The Statute of Limitations for Domestic Crimes

Within ECCC Jurisdiction
Many of the inhumane acts alleged to have been perpetrated during the Khmer
Rouge regime may potentially be characterised as felonies under the 1956
Penal Code in force in Cambodia when the Khmer Rouge took power.2
1See e.g. Decision on the Defence Preliminary Objection Concerning the Statute of Limitations
of Domestic Crimes, Nuon Chea and others (002/19–09–2007/ECCC-E187), Trial Chamber,
26 July 2010.
2Kingdom of Cambodia, ‘Penal Code of Cambodia 1956’, 7–8 Recueil judiciaire (1956),
promulgated by Krâm n°933/NS, 21 February1955. This analysis will take as given that the
1956 Penal Code remained in force during the Khmer Rouge regime, as found by the ECCC
Trial Chamber, see Judgment, Kaing Guek Eav (‘Duch’) (001/18-07-2007-ECCC-E188), Trial
Chamber, 26 July 2010, §§ 7 and 29.
14 Past Crimes and the Effect of Statutory Limitations … 377
However, the 10-year Statute of Limitations for felonies set out in Article 109
of that Code may be interpreted as barring any domestic prosecution based on
the Penal Code brought more than ten years after the Khmer Rouge regime fell
in 1979. Recognizing this problem, the Group of Experts that reported to the UN
Secretary General in 1999 on accountability for Khmer Rouge atrocities3
noted that:
… other options remain available to Cambodia. First, the National Assembly could repeal
the statutes of limitations, and do so notwithstanding the fact that the limitation period had
already expired. Second, the National Assembly could suspend the application of the stat-
ute from 1975 to the present on the ground that the judiciary has not been fully
functioning.4
In 2001, the Cambodian National Assembly promulgated the Law on the

Establishment of the Extraordinary Chambers (ECCC Law), which included a
small number of domestic crimes in ECCC jurisdiction (homicide, torture and reli-
gious persecution). Rather than repealing or suspending the statute of limitations
for domestic crimes, the Cambodian lawmakers simply extended the existing limi-
tation period for felonies by an additional twenty years.5 In 2004, when the ECCC
Law was amended, the statute of limitations was extended for a further ten years,
thus making the total limitation period 40 years.6 Since first seizing the
Co-Investigating Judges of alleged crimes in 2007, the ECCC Co-Prosecutors
(OCP) have consistently sought to include domestic crimes in the charges being
prosecuted. This has led to questions whether the thirty-year extension of the limi-
tation period amounts to a breach of the principle of legality, in particular the pro-
hibition of retrospective penal legislation. Indeed, unless the statute of limitations
was either suspended or interrupted, it would have expired long before Articles 3
(and 3 new) of the ECCC Law were enacted.7
After having summarised the relevant proceedings before the ECCC, this con-
tribution will concentrate on two key issues raised in the pleadings: whether the
10-year statutory limitation period under the 1956 Penal Code was interrupted
or suspended (and if so, from and until when); and whether the extension (or re-
instatement) of the limitation period is consistent with national or international fair
trial standards (notably the principle of legality).
3Report of the Group of Experts for Cambodia established pursuant to General Assembly resolu-
tion 52/135, UN Doc. A/53/850, 16 March 1999.

4Ibid., § 90.
5Article 3 Law on the Establishment of the Extraordinary Chambers, promulgated by Royal
Decree No. NS/RKM/0801/12, 23 July 2001.

6Article 3 (new) 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
(as amended), promulgated by Royal Decree, No. NS/RKM/1004/006, 27 October 2004.
7Pettay and Lampron 2011.
378 D. Boyle
14.2.1 Proceedings Concerning Statutory Limitations

Before the ECCC
The time-barring of domestic crimes was not addressed during the judicial investi-
gation in the first case brought before the ECCC against Kaing Guek Eav, alias
Duch (Case 001) because, for technical reasons, the Co-Investigating Judges did
not specifically indict Duch for any such crimes.8 Moreover, although the Pre-Trial
Chamber (PTC) re-introduced the domestic crimes of homicide and torture pursu-
ant to Articles 500, 501 and 506 of the 1956 Penal Code in response to an OCP
appeal against the indictment in Case 001,9 the PTC did not expressly consider the
issue of the Statute of Limitations.10
At trial in Case 001, the Duch Defence filed a preliminary objection affirming
that prosecution of the accused for domestic crimes was barred because the appli-
cable limitation period had expired.11 Although the national and international
judges were unable to come to agreement on their response to the objection on the
facts,12 the issue was fully argued and judicial consensus was reached on some of
the underlying legal principles, discussed below. There was no OCP appeal against
the Trial Chamber’s failure to decide on the preliminary objection and, as a result,
no conviction was entered for domestic crimes in the Duch Trial Judgment.
In the case against Nuon Chea and three other alleged senior leaders (Case
002/01), the Co-Investigating Judges found themselves in a ‘procedural stalemate’
due to the Trial Chamber’s failure to decide on statutory limitations for domestic
crimes in Case 001. Accordingly, they followed the PTC decision in Case 001 and
included murder, torture and religious persecution in the indictment13; decision
confirmed by the PTC on appeal.14 At trial, seized of a defence preliminary
8Closing Order Indicting Kaing Guek Eav Alias ‘Duch’, Kaing Guek Eav (‘Duch’) (001/18-07-
2007-ECCC-D99), Co-Investigating Judges, 8 August 2008, § 152.

9Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav ‘Duch’, Kaing Guek Eav
(‘Duch’) (001/18-07-2007-ECCC-D99/3/3), Co-Prosecutors, 5 September 2008, §§ 29, 31.

10Decision on Appeal Against Closing Order Indicting Kaing Guek Eav Alias ‘Duch’, Kaing
Guek Eav (‘Duch’) (001/18-07-2007-ECCC-D99/3/42), Pre-Trial Chamber, 5 December 2008;

see also Decision on the Defence Preliminary Objection Concerning the Statute of Limitations
of Domestic Crimes, Kaing Guek Eav (‘Duch’) (001/18-07-2007-ECCC-E187), Trial Chamber,
26 July 2010, § 8.
11Preliminary Objection Concerning Termination of Prosecution of Domestic Crimes, Kaing
Guek Eav (‘Duch’) (001/18-07-2007-ECCC-E9/1), Duch Defence, 28 January 2009, §§ 6–8. See
also 1956 Penal Code, Article 109.
12Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of
Domestic Crimes, Kaing Guek Eav (‘Duch’) (001/18-07-2007-ECCC-E187), Trial Chamber,

26 July 2010, § 14.
13Closing Order, Nuon Chea and others (002/19–09–2007/ECCC-D427), Co-Investigating
Judges, 15 September 2010, §§ 1567–1576 at 1574 and 1613 (Dispositive).

(002/19–09–2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, §§ 277–292, at 285–287.

objection based on the statute of limitations for domestic crimes, the Trial
Chamber ruled that the material facts underlying these offences had not been
charged with sufficient particularity in the Closing Order. Accordingly, the Trial
Chamber held that it was ‘not validly seized of the offences in the 1956 Penal
Code’, and that it was not required to decide on the substance of the objection.15
Thus, the Trial Chamber Judgment in Case 002/01, issued on 7 August 2014, con-
tains no discussion of either domestic crimes or statutory limitations thereon.16
14.2.2 Interruption or Suspension of the 10-Year Statutory

Limitation Under the 1956 Penal Code
At trial in Case 001, before addressing the issue of suspension or interruption, the
Trial Chamber first considered whether the statutory limitation under the 1956
Penal Code was a substantive or a procedural provision, noting that a penal provi-
sion may only be interpreted according to its purpose if it is procedural in nature,
since substantive criminal law is subject to the principle of strict construction. The
Cambodian judges found that, on a pure construction of Cambodian legal princi-
ples, statutory limitations are not part of substantive criminal law. Accordingly,
they found that statutes of limitations do not apply ‘[w]hen circumstances are such
that objectively, an investigation of crimes committed by an alleged perpetrator is
impossible’.17 The international judges concurred with this statement of principle
and, on the facts of the case, the judges agreed that no criminal investigations or
prosecutions were possible between 1975 and 1979 since there was no legal or
judicial system in Cambodia at that time.18 Accordingly, the limitation period for
crimes committed during the Khmer Rouge regime was interrupted and only
started to run in January 1979 at the earliest, regardless of when the crimes were
actually committed.
The Trial Chamber judges failed to agree, however, on whether or not the appli-
cable limitation period was interrupted between 1979 and 1993 and, thus, whether
or not the 10-year limitation period had expired by the time Article 3 of the ECCC
Law was promulgated. The Cambodian judges considered that, due in particular to
the continuing civil war against a Khmer Rouge coalition recognised internationally
15Decision on Defence Preliminary Objection (Statute of Limitations on Domestic Crimes),
Nuon Chea and others (002/19–09–2007/ECCC-E122), Trial Chamber, 22 September 2011,

dispositive; see also Eckelmans 2012, at 456.
2014, § 4.

26 July 2010, § 16.
18Ibid., § 31; concurring: Decision on Ieng Sary’s Appeal Against the Closing Order, Nuon Chea
and others (002/19–09–2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 285.

380 D. Boyle
as Cambodia’s government, it had been impossible to try them before their exclu-
sion from the transitional government in 1993.19 Accordingly, since the Cambodian
authorities arrested Duch in 1999 in connection with crimes committed at S-21, his
arrest interrupted the limitation period before it expired and the ten-year limitation
period started to run anew. Thus, it had not expired when the ECCC investigation
against the Accused commenced in 2006.20 The international judges acknowledged
that the Cambodian judicial system was ‘severely weakened and compromised’
between 1979 and 1993, but not to such a point that ‘no prosecution or investigation
would have been possible’.21 Accordingly, they were not in a position to conclude
that the limitation period applicable to domestic crimes had been interrupted or sus-
pended between 1979 and 1993.22
In Case 002/01, on appeal against the Closing Order, the Pre-Trial Chamber
unanimously upheld the reasoning of the Cambodian Trial Chamber judges on the
facts and found that
the 10 year statute of limitation of the 1956 Penal Code, which started to run on
24 September 1993, had not expired in 2001. Therefore, the extension by the National
Assembly in 2001 and 2004, respectively for 20 and then 30 years, did not violate the
principle of legality.23
14.2.3 Extension (or Re-instatement) of Limitation Periods

in Light of National and International Standards
At trial in Case 001, the Trial Chamber judges found that, notably given the pro-
cedural nature of statutory limitations, no national24 or international principles
prohibited the extension of a statutory limitation. In particular, noting that neither
Article 14 nor Article 15 of the ICCPR refer directly to limitation periods, the
international Judges found ‘no express contradiction between the international
19Supra note 17, §§ 20–26.

20Ibid., § 25.
21Ibid., §§ 31–35 at 31.
22Ibid., § 54.
23Decision on Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others (002/19–09–
2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 287.


26 July 2010, § 38. The Cambodian judges noted that a 2001 Constitutional Council decision
on the ECCC Law in substance declared the extension of the limitation period as provided for
in Article 3 of the ECCC Law to be compatible with the 1993 Constitution of the Kingdom of
Cambodia, since non-retrospective legislation was not a constitutional principle, and further that
they ‘[had] no competence to review the correctness of decisions of the Constitutional Council’;
see also: Kingdom of Cambodia, ‘Constitutional Council Decision on ECCC Law’, Decision no.
040/002/2001, 12 February 2001.
fair trial standards applicable before the ECCC and retroactive amendment, by a
national legislature, of a statutory limitation period’.25 However, noting that the
clear meaning of the notion of ‘extension’ is the lengthening or continuation of
an existing limitation period, the international judges concluded that the pur-
ported ‘extension’ in the ECCC Law was impossible, since they had already
found that the limitation period had expired before the adoption of Article 3 of
the Law.26
As regards the re-instatement of a statutory limitation after its expiry, citing
inter alia the European Court of Human Rights decision in Kononov, the interna-
tional Judges27 found that it would be contrary to the ‘notions of foreseeability,
legal certainty and fair trial principles’ to reinstate the right to prosecute offences
after the expiry of the limitation period.28 Finally, they found no clear evidence
that the intention of the Cambodian Lawmakers had indeed been to reactivate an
expired time limit rather than simply to extend the existing limit.29 Due to the fail-
ure of the trial Chamber to achieve a super-majority, no final decision was possible
on these issues and domestic crimes were excluded by default, rather than on the
basis of the abovementioned principles.
14.3 The Non-application of Statutory Limitations

to International Crimes
The ECCC Law provides for jurisdiction over three core international crimes (gen-
ocide, crimes against humanity and grave breaches of the 1949 Geneva
Conventions).30 In addition, the Tribunal has jurisdiction over two international
offences based on treaties signed by Cambodia: the destruction of cultural prop-
erty during armed conflict and crimes against internationally protected persons.31
The ECCC Law expressly provides that genocide and crimes against humanity
‘have no statute of limitations’.32 There does not appear to have been any express
25Ibid., §§ 42–43.
26Ibid., § 44.
27Given their decision on interruption of the limitation period, the Cambodian Judges made no
finding on the issue.


26 July 2010, §§ 50–51.
29Ibid., §§ 52–55.
30Articles 4–6 ECCC Law.
382 D. Boyle
defence challenge to these provisions.33 Accordingly, the ECCC judicial bodies

have not been obliged to specify the customary basis for such exclusions between
1975 and 1979, in particular, the weight to be given, if any, to the 1968
Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity, which has never been signed by Cambodia. However, it
may be noted that in another context, the Trial Chamber has found that ‘Cambodia
is under an absolute obligation to ensure the prosecution or punishment of perpe-
trators’ of genocide, which appears to suggest at a minimum a retroactive right for
internationalised courts to exclude statutory limitations to the extent that they
apply to genocide.34
As regards the other international crimes within the Tribunal’s jurisdiction,
the ECCC Law is silent concerning the question of statutory limitations. Since
no charges have yet been laid before the ECCC concerning destruction of cul-
tural property or crimes against internationally protected persons, the main issue
has been the effect of the absence of a provision on statutory limitations for grave
breaches of the 1949 Geneva Conventions. Issues of principle have been raised in
this context as to the crystallisation in 1975–1979 of a rule of international law
either excluding statutory limitations on international crimes, or at least permitting
states to exclude such limitations.
The defence did not raise these issues in Case 001 and Duch was convicted of
grave breaches in relation to the treatment of Vietnamese POWs and civilians at
S-21. The Trial Chamber held, of its own motion, that the Geneva Conventions
had customary status as at 1975 and that that contracting states have ‘universal
mandatory criminal jurisdiction’ over grave breaches.35 It was not until 2010 that
the issue of statutes of limitations for grave breaches of the 1949 Geneva
Conventions was raised expressly, on appeal against the Closing Order in Case
002/01, which indicted all four accused inter alia for grave breaches. The defence
challenged the indictment on the basis that, in the absence of any express exclu-
sion in the ECCC Law, the domestic statutory limitation period for felonies
(discussed above) applied equally to grave breaches, and that it had expired.36
33For example, the issue of statutory limitations is not raised in Ieng Sary’s motion
against the applicability of the Crime of Genocide at the ECCC, Nuon Chea and others
(002/19–09–2007/ECCC-D240), Ieng Sary Defence, 30 October 2009, nor in Ieng Sary’s
Supplemental Alternative Submission to his Motion Against the Applicability of Genocide
at the ECCC, Nuon Chea and others (002/19–09–2007/ECCC-D240/2), Ieng Sary Defence,
21 December 2009.
34Emphasis added; Decision on Ieng Sary’s Rule 89 Preliminary Objections (‘ne bis in idem’ and
Amnesty and Pardon), Nuon Chea and others (002/19–09–2007/ECCC-E51/15), Trial Chamber, 3
November 2011, § 39; see also §§ 53 and 54. This decision has not yet been tested since a defence
interlocutory appeal was rejected for procedural reasons, see Decision on Ieng Sary’s Appeal against
Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (‘ne bis in idem’ and
Amnesty and Pardon), Nuon Chea and others (002/19–09–2007/ECCC-E51/15/1/2), 20 March 2012.
35Judgment, Kaing Guek Eav (‘Duch’), supra note 2, §§ 400–408, at 403.
36Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others (002/19–09–2007/
ECCC-D427/1/6), Ieng Sary Defence, 25 October 2010, §§ 136–137.

In response, the Co-Prosecutors noted the absence of any reference to statutory

limitations in the Geneva Conventions, the practice of other international criminal
tribunals and post-World War II Italian case law, but made no reference to the
1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes
and Crimes Against Humanity.37 Although the Pre-Trial Chamber found this
ground of appeal to be inadmissible for procedural reasons, it affirmed in obiter
that ‘[t]he Geneva Conventions, which are the applicable law under Article 6 of
the ECCC Law, provide that war crimes are not subject to any statute of
limitations’.38
The defence reiterated its challenge in preliminary objections before the Trial
Chamber. During the Initial Hearing,39 the Chamber specifically requested the par-
ties to respond to the question ‘[w]ere statutory limitations in relation to Grave
Breaches of the Geneva Conventions envisaged and permissible within customary
international law, in particular between 1975 and 1979?’.40 The defence argued, in
essence, that: the ECCC Law incorporated certain grave breaches into domestic
criminal law as felonies rather than providing for the direct application of the 1949
Conventions; felonies are subject to a ten-year statute of limitations under the
1956 Penal Code unless expressly stated otherwise; and Article 6 of the ECCC
Law does not exclude statutory limitations (contrary to the articles on genocide
and crimes against humanity). They concluded that, since the Geneva Conventions
are silent on the issue and no customary rule excluding statutory limitations on the
prosecution of grave breaches had crystallized by 1979, if at all,41 the domestic
statute of limitations must apply.42 In response, the Co-Prosecutors affirmed, on
the one hand, that Article 6 did not create domestic crimes since the ECCC Law
simply gave jurisdiction to the Tribunal over grave breaches as defined in the 1949
Conventions and, on the other hand, that interpreting the ECCC Law as imposing
statutory limitations on such international crimes would be inconsistent with the
regime of the Geneva Conventions, which impose a positive duty to search for,
apprehend and prosecute suspects at all times.43
37Co-Prosecutors’ Joint Response to Nuon Chea, Ieng Sary and Ieng Thirith’s Appeals against
the Closing Order, Nuon Chea and others (002/19–09–2007/ECCC-D427/1/17), Co-Prosecutors,

19 November 2010, §§ 202–205.
(002/19–09–2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 73.

39Summary of Ieng Sary’s Rule 89 Preliminary Objections & Notice of Intent of Noncompliance
with Future Informal Memoranda Issued in Lieu of Reasoned Judicial Decisions Subject to
Appellate Review, Nuon Chea and others (002/19–09–2007/ECCC-E51/4), Ieng Sary Defence,
25 February 2011, § 25.
40Agenda for Initial Hearing, Nuon Chea and others (002/19–09–2007/ECCC-E86/1), Trial
Chamber, 14 June 2011, § 4.

41In support of the absence of an obligation to abolish time limits for war crimes, the defence cited
Article 462-10 of the French Penal Code, adopted after the entry into force of the Rome Statute,
which extends the statutory limitation for war crimes to thirty years, but does not abolish it.
42Transcript, Nuon Chea and others (002/19–09–2007/ECCC-E1/5.1), 28 June 2011, pp. 86–96.
43Ibid., pp. 96–115.
384 D. Boyle
In the end, no decision was issued on these challenges since the Trial Chamber
severed all grave breaches charges from Case 002/01.44 Thus, the Trial Chamber
Judgment in Case 002/01, issued on 7 August 2014, contains no discussion of
grave breaches or statutory limitations thereon. However, as noted above, the Trial
Chamber has indicated that a domestic limitation on prosecution (in that case a
Royal amnesty) could not be construed as relieving Cambodia of its treaty obliga-
tions to prosecute grave breaches of the 1949 Geneva Conventions, because
‘Cambodia is under an absolute obligation to ensure the prosecution or punish-
ment of perpetrators’ of such crimes.45
14.4 Conclusion
The ECCC judicial bodies have not yet provided substantive responses to all of
the questions relating to statutory limitations raised in the cases before them.
However, a number of principles have been enunciated that make a unique contri-
bution to debate on the evolution of customary rules concerning statutory limita-
tions in the context of international tribunals.
As regards domestic crimes, the Trial Chamber has found unanimously that
statutes of limitations do not apply when the circumstances are such that objec-
tively, an investigation of crimes committed by an alleged perpetrator is impossi-
ble. In addition, the Trial Chamber’s international judges consider that the
extension of an unexpired limitation period does not violate the prohibition of ret-
rospective legislation. However, the judges found that, in the context of the proce-
dural regime applicable in Cambodia, it would be contrary to the notions of
foreseeability, legal certainty and fair trial principles to reinstate the right to prose-
cute offences after the expiry of the limitation period. The dissent amongst the
judges as to the application of these principles to the facts of the case does not
detract from their legal force. Moreover, in the most recent application of these
principles before the ECCC to date, the PTC unanimously validated the prosecu-
tion of domestic crimes before the ECCC on the basis that the limitation period
had been suspended until 1993 and that, accordingly, the 2001 ECCC Law validly
extended the limitation period before it expired.46
Turning to international crimes, despite the lack of a definitive decision on
the applicability of statutory limitations in 1975–79, the Trial Chamber’s find-
ing that Cambodia was under an absolute obligation to ensure the prosecution or
punishment of perpetrators of international crimes in 1975 appears to suggest a
44Severance Order Pursuant to Rule 89ter, Nuon Chea and others (002/19–09–2007/ECCC-
E124), Trial Chamber, 22 September 2011, § 7.
45Decision on Ieng Sary’s Rule 89 Preliminary Objections, supra note 34.
46Decision on Ieng Sary’s Appeal Against the Closing Order, Nuon Chea and others (002/19–09–
2007/ECCC-D427/1/30), Pre-Trial Chamber, 11 April 2011, § 287.

retroactive right for internationalised courts to exclude statutory limitations on

international crimes, if not an absolute exclusion of such limitations.
The outstanding issues are likely to arise again in Case 002/2 (as regards statu-
tory limitations on grave breaches) and in Cases 003 and 004, currently before the
Co-Investigating Judges, since the OCP Introductory Submissions in those cases
also allege the commission of grave breaches and domestic crimes.47
References
Eckelmans F (2012) The ECCC in the Context of Cambodian Law. In: Peng H, Phallack K,
Menzel J (eds) Introduction to Cambodian Law. Konrad-Adenauer-Stiftung, Phnom Penh,
pp 439–475
Pettay T, Lampron K (2011) A Partial Victory for Fair Trial Rights at the ECCC with the
Decision on the Statute of Limitations on Domestic Crimes www.internationallawbureau.com/
index.php/article-a-partial-victory-for-fair-trial-rights-at-the-eccc-with-the-decision-on-the-
statute-of-limitations-on-domestic-crimes-pettay-lampron. Accessed 15 June 2015
47Statement of the Acting International Co-Prosecutor, ‘Submission of Two New Introductory
Submissions’, 8 September 2009; available at http://www.eccc.gov.kh/sites/default/files/media/

ECCC_Act_Int_Co_Prosecutor_8_Sep_2009_(Eng).pdf (visited 15 June 2015).
Part III
Assessing the Contributions to
International Criminal Procedure
Chapter 15
Trial Process at the ECCC: The Rise
and Fall of the Inquisitorial Paradigm
in International Criminal Law?
Sergey Vasiliev
Abstract The adherence to the ‘inquisitorial model’ is what distinguishes the

criminal procedure in the ECCC from that in all other international and hybrid tri-
bunals. The ECCC’s experience in the two trials concluded thus far (Cases 001
and 002/01) allows testing the suggestion, implied in the critiques of the adver-
sarial process in the ad hoc tribunals, that the inquisitorial process may be more
suitable for the investigation and prosecution of international crimes. The prom-
ise of more efficient and streamlined trials at the ECCC has not been evidently
fulfilled, and the question is what this means for the future of the ‘inquisitorial’
model in international criminal procedure. The chapter first examines the ECCC’s
procedural system through a comparative prism and then analyzes its trial practice
in the first two cases, with a focus on trial management and modes of examining
witnesses. The Cambodia Tribunal’s ‘procedural legacy’ throws empirical light on
the abstract debates about the preference for either the ‘adversarial’ or the ‘inquisi-
torial’ approach and has implications for the contest between the two main models
of procedure in the realm of international criminal justice.
Keywords · Trial process · Inquisitorial

International criminal procedure
system · Adversarial system · Witness examination · Trial management ·
Truth-finding
The chapter takes into account key developments in law and jurisprudence up to 16 January
2015. The author thanks the editors of this volume and the reviewer, who wished to remain anon-
ymous, for their excellent comments and suggestions on the first draft.
S. Vasiliev (*)
Leiden University, Leiden, The Netherlands
e-mail: s.vasiliev@law.leidenuniv.nl

DOI 10.1007/978-94-6265-105-0_15
390 S. Vasiliev
Contents
15.1 Introduction........................................................................................................................ 388
15.2 Inquisitorial Theory and Hybrid Practice.......................................................................... 391
15.2.1 Applicable Law and Nature of the ECCC Process................................................. 391
15.2.2 Aspects of Hybridity.............................................................................................. 395
15.2.3 Lack of Shared Culture.......................................................................................... 400
15.3 ECCC’s Trial Model at Work............................................................................................. 404
15.3.1 Structure and Management of Trial........................................................................ 404
15.3.2 Witness Examination.............................................................................................. 415
15.4 Streamlined Process: Where Did the Promise Go?............................................................ 421
15.5 Conclusion......................................................................................................................... 427
References................................................................................................................................... 430
15.1 Introduction
One of the many features that make the Extraordinary Chambers in the Courts of
Cambodia (ECCC) an ‘extraordinary’ institution, as the name suggests, and an
outlier in the community of international and hybrid criminal courts, is its adher-
ence to the ‘inquisitorial model’ in the conduct of proceedings. Next to the judicial
investigative function and participation of civil parties, this concerns the organiza-
tion of the ECCC’s trial process.1 The trial scheme is an aspect that sets the ECCC
apart from all other experiments in international criminal procedure. But it has
received limited scrutiny thus far, particularly in comparison with the ECCC’s
other unprecedented features.2
Among the institutional and procedural aspects of the ECCC that have attracted
considerable attention are, for example, the civil party action; the mixed composi-
tion of all Chambers and a supermajority voting rule; the dyadic (international/
Cambodian) structure of the Office of the Co-Prosecutors (OCP) and the Office of
the Co-Investigating Judges (OCIJ or CIJs); and the Pre-Trial Chamber (PTC)
which is charged with hearing appeals from the OCIJ decisions and settling dis-
putes between the OCP and OCIJ principals. The same traits have also been seen
as the main hindrances to the effective and fair process at the ECCC, as well as the
instructive material about the suboptimal design and structure of criminal proceed-
ings in mass atrocity cases.3 Despite what commentators may have hoped, the pro-
cedural innovations of the ECCC have been largely overshadowed by the more
earthly problems in its functioning.4 The overt governmental interference in the
tribunal’s work (in Cases 003 and 004 and to some extent in Case 002), the per-
sisting allegations of corruption, mismanagement, and weak oversight within its
1For general overviews, see Acquaviva 2008, 129–151; Petit and Ahmed 2009, 165–189.
2Exceptionally, see Gibson and Rudy 2009, 1005–1022.
3Ciorciari and Heindel 2014, at 370.
4Gibson and Rudy 2009, at 1005 (the procedure ‘may be the only aspect of the proceedings with
a chance of overshadowing the column inches dedicated to the Court’s ongoing battles with cor-
ruption allegations.’).
15 Trial Process at the ECCC: The Rise and Fall … 391
national sub-structure, and financial instability occupied center stage in the

debates about the ECCC’s viability and legacy.5 As far as international and hybrid
criminal tribunals are concerned, the notion of legacy lends itself to a broad range
of interpretations. It is often conceptualized in terms of a given court’s ability to
strengthen the rule-of-law culture locally, transfer skills and knowledge to the
national level, increase capacity and independence of the domestic judicial system,
and enhance fairness of national criminal process.6 Assessments of the ECCC’s
potential and achievements along these lines have varied widely.7
While the ECCC’s trial model in itself forms an essential ingredient of its ‘leg-
acy’, the Court’s law and practice relating to the trial stage remain to be appraised
comprehensively from that perspective. Over the past six years, the Trial Chamber
has completed substantive hearings in two cases and issued two judgments, one in
Case 001 and another in the first segment of Case 002 (002/01).8 These results and
the accumulated experience, including the challenges the Court has faced, invite an
assessment—not definitive at this stage—of its ability to conduct fair and expedi-
tious proceedings. The ECCC’s output thus far also enables one to gauge the possi-
ble impact of its procedural model and practice on the Cambodian judicial system.
Moreover, the significance of the ECCC’s procedural experiment may go well
beyond the walls of that Court and the Cambodian legal order. Admittedly, caution
is needed in drawing general conclusions regarding the validity of the trial model
as such from the ECCC’s practice. The peculiarities of the Chambers’ institutional
design and operational challenges extraneous to its trial model—including the
binary (international/national) composition of its organs and as many as three
working languages—have had an impact on the ECCC’s performance.
Nevertheless, some procedural lessons can be learnt for the future. These are not
limited to the specialisms of the ECCC – the tribunal that has mostly dealt with
elderly and physically frail accused and represents the first ever attempt assisted by
the UN to implement a civil party action in cases concerning international crimes.
The ECCC’s trial practice may be instructive in discerning the evolutionary line of
5See e.g. ‘Political Interference at the Extraordinary Chambers in the Courts of Cambodia’, OSJI,
July 2010; Bates 2010, at 52–60 and 87–88; Hamilton and Ramsden 2014, 115–147; Ciorciari
and Heindel 2014, at 393–400 and 409–420; Gray 2013, at 1.
6See e.g. CHRAC and BAKC, ‘Implementation of the ECCC Legacies for Domestic Legal and
Judicial Reform’, Workshop report, Phnom Penh, March 2013; ECCC and CHRAC, ‘Hybrid
Perspectives on Legacies of the Extraordinary Chambers in the Courts of Cambodia (ECCC)’,
Conference Report and Recommendations, December 2012; Ciorciari and Heindel 2014, at
431–437.
7On the positive impact of some ECCC decisions and practices, see Bates 2010, at 51, §§ 146–
149; Ciorciari and Heindel 2014, at 382–384 and 435–436. Cf. J. Wallace and K. Naren, ‘Khmer
Rouge Tribunal Failing Expectations’, Al Jazeera, 3 March 2014 (citing M.G. Karnavas, defence
lawyer at the ECCC: ‘nothing can be adopted and implemented from the ECCC in a uniform and
consistent manner by the courts in Cambodia without political will from the very top.’).
2010 (‘Duch Trial Judgment’); Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313),
Trial Chamber, 7 August 2014 (‘Case 002/01 Trial Judgment’). See further infra Sect. 15.3.1.
392 S. Vasiliev
international criminal procedure—or, critics might wish to qualify, it shows the

dead-end of its evolution. This experiment provides the first empirical insight into
how the ‘inquisitorial’ model of criminal process can be expected to fare when
grafted onto a hybrid criminal jurisdiction adjudicating international crimes com-
mitted in the distant past.
The ideological competition between the proponents of the legal traditions of
common law and civil law has been the background of the continuous quest for the
best procedure in international criminal justice.9 The discipline has long been pre-
occupied with the question of what model is optimal to guarantee a fair and expe-
ditious process and effective truth-finding. The methodology of international
criminal procedure as a field of legal science has failed to produce a persuasive
normative framework that could be used to settle conclusively this comparative-
law contest.10 None of the domestic procedural systems has emerged from the bat-
tlefield of international criminal law as an unscathed winner. The procedural
experiment embodied in the ECCC goes some way to bringing an end to the per-
ennial dispute of legal cultures—by demonstrating its glaring normative irrele-
vance. The adversarial approach to the organization of trials has been predominant
in international criminal law and a hallmark of practice at the ad hoc tribunals, the
SCSL, and the ICC.11 This means that before the ECCC their experience was the
only point of reference and the only source of empirical knowledge about ‘what
works’. The adversarial trial model also served as the only target for conceptual
critiques, which argued it to be less suitable in light of special challenges and
objectives of international criminal trials.12 For instance, it was blamed for the ten-
dency to generate lengthy proceedings with fragmented and repetitive presenta-
tions of evidence,13 the limited ability to establish (and a higher potential to
distort) the truth due to polarization of issues and witnesses,14 and the inconsist-
ency with the tribunals’ mandates as mechanisms for achieving peace and recon-
ciliation.15 Implied in these criticisms is the suggestion that the inquisitorial
system avoids the same pitfalls and generally secures better performance in inter-
national crimes cases.16
9See further Vasiliev 2014b, at 175.

10Gibson and Rudy 2009, at 1006 (‘to assess the procedural approach adopted in the Duch pro-
ceedings is difficult, given the absence of objective or universal indicators as to what constitutes
‘good’ criminal procedure’).
11See further Vasiliev 2014a, at 649–675 (providing a comparative analysis of procedure for the
presentation of evidence in international and hybrid criminal tribunals).

12Nice and Vallières-Roland 2005, at 355–356 and 374 (‘common law is imperfect generally, and
probably ill-suited for war crimes trials’).

13De Hemptinne 2007, at 405; Eser 2009, at 214–215.
14De Hemptinne 2007, at 404 and 408–409; Nice 2001, at 394–396; Damaška 2008a, at 177,
2008b, at 337; Eser 2009, at 218–219.

15E.g. Eser 2009, at 226; Damaška 2008a, at 181, 2008b, at 357.
16Discussing these arguments, see Vasiliev 2014a, at 787–95.
It bears noting that the adoption of a non-adversarial approach to the ECCC pro-
cess was dictated neither by an abstract and theoretical consideration of its relative
advantages nor by an intention to stage a procedural experiment. Rather, it was a
tribute to convenience and compromise forged in complex and lengthy negotiations
between the UN and the Cambodian government. The latter insisted on the domestic
ownership of the Court and its embedment into the Cambodian legal order, which
is premised on a civil law (French) tradition. As a corollary of that position, the
ECCC—an inquisitorial kid on the block in international criminal justice—became a
laboratory to test experimentally some of the assumptions about the benefits offered
by non-adversarial trials. This concerns, in particular, the promise of more efficient
and streamlined trial proceedings that often comes to be associated with the civil law
(judge-led) rather than the common law (party-led) evidentiary process.
After situating the ECCC process in the comparative-law system of coordi-
nates, this Chapter examines the Court’s trial practice in the first two cases (001
and 002/01). It does so with a focus on trial management and modes of examining
witnesses. Other aspects defining of the ECCC’s nature and crucial to its proce-
dural legacy—most notably, judicial investigations and civil party participation—
are covered elsewhere in this volume and will not be discussed in detail. The
Chapter shows that the ECCC’s trial experience thus far provides no support for
the thesis that the inquisitorial model as such secures a speedier process in interna-
tional crimes cases than its main alternative.17 In fact, it has been claimed that
some of the typical elements of inquisitorial approach have slowed down the
ECCC proceedings.18 The question is, first, why the ECCC trial process has not
attracted the expected efficiency gains and, second, whether the way in which the
trials have been conducted has been part of the problem, next to the ECCC’s insti-
tutional features unrelated to its trial model. The answer to this question can add
empirical substance to the abstract debates about the preference for either the
adversarial or inquisitorial approach in international criminal law. In this sense, the
ECCC’s legacy offers a fresh perspective on the perennial contest between the
main models of procedure in this domain.
15.2 Inquisitorial Theory and Hybrid Practice
15.2.1 Applicable Law and Nature of the ECCC Process
The origins and character of the ECCC process cannot be cognized without
addressing the nature of the Court’s applicable law. The ECCC is a hybrid court
embedded within the existing court structure of Cambodia and operates, de jure,
17See also Gibson and Rudy 2009, at 1006 (‘it cannot be denied that the [Duch] proceedings are
taking longer than anticipated.’).
18Ciorciari and Heindel 2014, at 373 (mentioning the inclusion of investigating judges and civil
parties).
394 S. Vasiliev
on the basis of domestic procedural law, unless that law evinces a gap, uncertainty,
or inconsistency with international standards, in which case ‘guidance may also be
sought in procedural rules established at the international level’.19 Notably, the
ECCC Agreement and the ECCC Law do not (expressly) grant the ECCC legisla-
tive authority in matters of procedure, such as would be necessary for ‘adopt-
ing’—rather than merely ‘seeking guidance’ in—international rules. Nevertheless,
on 12 June 2007 the plenary session of national and international judicial officers
enacted the Internal Rules (IR), which have been revised nine times ever since, last
time in January 2015.20 The purpose of adopting the IR, declared in their
Preamble, was to ‘consolidate’ applicable Cambodian procedure for the ECCC
proceedings and, ‘pursuant to Articles 20 new, 23 new, and 33 new of the ECCC
Law and Article 12(1) of the Agreement, to adopt additional rules’ to deal with
any gaps, uncertainties of interpretation or application of existing rules, or incon-
sistencies with international standards. There is a substantial difference, however,
between the formally delegated power to seek guidance in international criminal
procedure as per the provisions cited, on the one hand, and the stated rationale of
the ECCC IR to formally enact any rules (as opposed to using them as interpretive
aids), on the other hand.21
Even if one accepts the liberal interpretation of the authority to ‘seek guidance’
in international rules as implying the power to adopt those rules as formally appli-
cable, the Preamble of the ECCC IR suggests that the Rules may reflect the extant
domestic and, where appropriate, international standards, as opposed to creating
new law. But considering the truly original and ambitious character of this consoli-
dation and the drafters’ broad deference to international standards, the IR arguably
amount to nothing else than an act of procedural legislation. In the absence of
express legislative powers, such an act arguably exceeds the authority implied in
the provisions referred to in the Preamble to the ECCC IR. The Rules as adopted
were generously dressed with the international ‘rules of procedure’ and repre-
sented a ‘self-contained regime of procedural law related to the unique circum-
stances of the ECCC’.22 It is legally controversial, to say the least, that the IR were
intended to serve (and have served) as the ‘primary instrument’ governing
19Article 12(1) ECCC Agreement; Articles 20 new, 23 new, and 33 new ECCC Law. See also the
French version of Article 12(1) ECCC Agreement: ‘les règles de procédure établies au niveau
international pourront aussi servir de référence’.
20The latest revision of the ECCC IR (Rev. 9) is dated 16 January 2015. This version of the Rules
(in the English language) is referred to in this Chapter unless otherwise indicated.
21See also Duch Trial Judgment, supra note 8, § 35 (stating that ‘[t]he ECCC Agreement and
the ECCC Law envisage that additional rules may be adopted’, whereas the language of those
instruments merely authorizes the ECCC to ‘seek guidance’ in international rules); Case 002/01
Trial Judgment, supra note 8, § 21 (‘The Internal Rules […] adopt international procedure in
order to ensure justice, fairness and due process of law.’). Emphases added.
22Decision on Nuon Chea’s Appeal against Order Refusing Request for Annulment, Nuon Chea
and others (002/19-09-2007-ECCC-D55/I/8), Pre-Trial Chamber, 26 August 2008, § 14.

procedure,23 whether or not there is a proven deficiency in domestic law falling

within one of the three relevant categories (gap, uncertainty, or inconsistency with
international standards). This opened the ECCC IR to the challenge of unconstitu-
tionality, which eventually did not succeed.24 The 2007 Code of Criminal
Procedure (CCP) of Cambodia was adopted soon after the ECCC plenary session
promulgated the IR, but the CCP took a backseat in the ECCC legal regime, being
a subsidiary source perused in case of lacunae in the IR, rather than vice versa.25
Even though the 2007 CCP is consulted and directly relied upon by the
Chambers next to the IR, at least some of the staff members of the United Nations
Assistance to Khmer Rouge Trials (UNAKRT) have apparently held reservations
as to its suitability for the ECCC proceedings and its adequacy in complex interna-
tional crimes cases.26 This was the reason to develop the ECCC IR. Having a sin-
gle comprehensive, consolidated, and specialized instrument offered the benefits
of legal certainty and convenience. It also allowed updating and tailoring the pro-
cedure to the ECCC’s specificities.27 Yet, because the de facto relationship
between the ECCC IR and the CCP is the exact opposite of what is mandated
under the ECCC’s constitutional instruments, which establish the primacy of
Cambodian procedure,28 the issue of applicable procedural law at the ECCC has
been rather confused. Different methodologies of identifying it have been in use in
different chambers. This may create an impression that rules are cherry-picked in
an arbitrary and outcome-driven manner from different international and national
sources.29
23Ibid., §§ 14–15 (‘the [ECCC IR] constitute the primary instrument to which reference should
be made in determining procedures before the ECCC where there is a difference between the
procedures in the [IR] and the CPC. […] Provisions of the CPC should only be applied where a
question arises which is not addressed by the Internal Rules.’). For critical views on the ‘consoli-
dation’ of domestic procedure in the ECCC IR, see Starygin 2011, at 21 et seq.; Acquaviva 2008,
at 132; Vasiliev 2014a, at 51–53.
24Decision on Nuon Chea’s Preliminary Objection Alleging the Unconstitutional Character
of the ECCC Internal Rules, Nuon Chea and others (002/19-09-2007/ECCC-E51/14), Trial
Chamber, 8 August 2011, §§ 6–7 (finding that ‘[n]othing in Article 12(1) or elsewhere in the
ECCC Agreement prohibits the adoption of procedural rules by a Plenary Session convened for
that purpose.’).
25Rule 2 ECCC IR.
26Ciorciari and Heindel 2014, at 391–392 and fn 115 (citing CIJ Lemonde’s remarks to the effect
that the CCP was based on the pre-2000 French Code, which had been ‘obsolete before it was
even used’ and had fairness issues criticized by the European Court of Human Rights).
27See also Decision on Nuon Chea’s Preliminary Objection Alleging the Unconstitutional
Character of the ECCC Internal Rules, supra note 24, § 7; Decision on Nuon Chea’s Appeal
against Order Refusing Request for Annulment, supra note 22, § 14.
29Ciorciari and Heindel 2014, at 392–393 (in the Supreme Court Chamber, the CCP rather than
the ECCC IR have served as the point of departure; this has been different for the Pre-Trial
Chamber and the Trial Chamber).
396 S. Vasiliev
While the adoption of the ECCC IR modified the nature of the process towards
the incorporation of standards borrowed from, or inspired by, the practice of inter-
national criminal tribunals, it is generally correct to characterize the system as
resting on an inquisitorial foundation. More than any other international or hybrid
court to date, the ECCC emulates the French-style inquisitorial system, as the con-
sequence of the fact that the ECCC IR were drafted on the basis of the CCP, in
turn heavily influenced by the French Code. In the ad hoc tribunals, SCSL, ICC,
and STL, the structure of investigations and trials is based on the adversarial tem-
plate of common law systems, reflecting the binary approach to the collection of
evidence and case-presentation.30 Thus, parties take lead in investigating, prepar-
ing, and presenting their respective cases to the court. The process is organized
around two (or more) partisan cases, although the court is empowered to order
additional evidence and participate in the examination of witnesses to the extent
compatible with its party-driven nature.31 Where victim participants may be
allowed to present evidence relating to the guilt or innocence (ICC and STL), at
least three autonomous cases can be distinguished, but the bi-partite logic still pre-
vails. The defence is entitled to present its case after all potentially incriminating
evidence has been adduced, i.e. after victims’ evidence.32
By contrast, the ECCC adheres to the ‘inquisitorial’ scheme of judicial investi-
gations and trials typical for (some) civil law systems. There are no distinct parti-
san cases but a single ‘case of the truth’, which comprises the evidence amassed in
the dossier and supplemented by any proof proposed by the parties and admitted
by the court. The principle of public trial—respected in modern civil law systems
and having a particular importance in light of the ECCC’s mandate (as will be dis-
cussed below)—demands that evidence be produced and examined in open court
before it can become part of the trial record and serve as the basis for judgment.33
The examination at trial is dominated and tightly controlled by the Trial Chamber,
with parties playing second fiddle.34 Questions may only be posed to the accused,
witnesses, experts, and civil parties with the permission of the President.35 But
30This is subject to the caveat that the use of traditional comparative-law labels to describe the
character of proceedings, especially in international criminal tribunals, provides simplicity at the

cost of accuracy; in particular, the notion ‘adversarial’ does not fully capture the (more complex)
nature of the ICC and STL procedural law and practice. For a detailed discussion, see Vasiliev
2014a, at 656–779.
31E.g. Rule 85(A)(v) and (B) and 98 ICTY and ICTR RPE; Article 69(3) ICC Statute and Rule
140(2)(c) ICC RPE.

32Rule 146(B) STL RPE; e.g. Decision on the Modalities of Victim Participation at Trial,
Katanga and Ngudjolo (ICC-01/04-01/07-1788-tENG), Trial Chamber II, 22 January 2010,

§ 85, and Directions for the conduct of the proceedings and testimony in accordance with rule
140, Katanga and Ngudjolo (ICC-01/04-01/07-1665), Trial Chamber II, 20 November 2009, §
7; Decision on Directions for the Conduct of the Proceedings, Bemba (ICC-01/05-01/08-1023),
Trial Chamber III, 19 November 2010, § 5.
33Rule 87(2)–(3) ECCC IR.
34Rules 90 and 91 ECCC IR.
35Rule 90(2) and 91(2) ECCC IR.
while a typical inquisitorial sequence of examination starts with judicial question-

ing, the order of questioning by different participants at the ECCC is subject to a
decision by the President, as a result of the 2010 amendment.36
It must be emphasized that the contrast between adversarial and inquisitorial
procedure is an inaccurate simplification when extrapolated onto actual domestic
systems. All of them are hybrid, being an outgrowth of historical heritage over-
lain by foreign legal-cultural influences. The continuous cross-fertilization and
harmonizing effect of human rights law, channelled through the regional human
rights adjudication, have catalyzed the gradual approximation between national
procedural cultures. As a result, the ‘adversarial’ and ‘inquisitorial’ taxonomy is
imperfect for describing the existent procedural forms. As ideal-types of process,
the seasoned categories of comparative law do not exist other than in the minds of
theorists and can only be used as theoretical abstractions or models for analytical
purposes. This observation holds a fortiori for international criminal procedure,
which by origin is an amalgamation of elements drawn from different legal tradi-
tions, in particular civil law and common law. Not unlike any other contemporary
system, and despite the illusion of comparative ‘purity’, the ECCC does not at all
escape hybridity. There are two primary reasons for that: first, the choices made by
the ECCC IR drafters in importing what they considered as ‘international stand-
ards’; and second, the pluralistic legal-cultural environment in which the ECCC IR
have been put to use and which has made the replication of an undiluted ‘inquisi-
torial’ scheme as good as impossible in the ECCC context. These issues go against
the common assumption that the ECCC is a pure ‘inquisitorial’ system, whereas it
is in fact—and can only be—a procedural mongrel.
15.2.2 Aspects of Hybridity
There are a number of provisions in the ECCC IR that enhance the hybridity of the
ECCC process and raise questions of statutory authority for departing from the
Cambodian (civil law) system. For example, Rule 23 stipulates generally that
‘ECCC proceedings shall be fair and adversarial and preserve a balance between
the rights of the parties’.37 The systemic implications of this principle are not self-
evident. It is uncertain whether and how ‘adversarial proceedings’ comport with
the inquisitorial structure implied in the ECCC’s primary instruments, and what
exactly the term entails.38 Elsewhere the ECCC IR stipulate that ‘[a]ny decision of
36Rule 91bis ECCC IR (adopted on 17 September 2010).

37Rule 21(1)(a) ECCC IR (emphasis added). Cf. Rule 21(1)(a) ECCC IR (French): ‘La procé-
dure des CETC doit être équitable et contradictoire et preserver l’équilibre des droits des parties.’
(emphases added).
38Starygin 2011, at 30 (the fundamental choice of a model was not warranted under the ‘statutory
adequacy test’).
398 S. Vasiliev
the Chamber shall be based only on evidence that has been put before the
Chamber and subjected to examination.’39 The corollary of these principles in trial
practice has been the Chamber’s position that the parties must be allowed an
opportunity to have an adversarial debate on the evidence (even if they choose not
to avail of it).40 Absent the opportunity for effective adversarial challenge, the evi-
dence going to proof of the acts and conduct of the accused as charged in the clos-
ing order has been excluded, save for exceptional circumstances and subject to
limitations regarding the subsequent use of such evidence.41
Another apparent touch of ‘adversarialism’ is the current version of Rule 87(1),
which took shape as a result of the 1 February 2008 amendment. It places the onus
of proving the guilt of the accused squarely on the Co-Prosecutors and sets the
standard of proof at ‘beyond reasonable doubt’ for the Chamber to be able to con-
vict the accused (as per the English and Khmer versions of the ECCC IR). There is
a discrepancy, however, between the different language versions of the IR, given
that the French version of Rule 87(1) refers to the civil law standard of ‘intime
conviction’.42 Given that the common law and civil law standards are not identi-
cal, the Trial Chamber has interpreted Rule 87(1) as requiring it, upon a reasoned
assessment of the evidence, to resolve any doubt as to guilt in favour of the
accused, i.e. that all reasonable inferences that may be drawn from the evidence
must point to the guilt.43 Notably, the initial IR did not allocate the burden of
proving the case on a party.44 In the absence of authoritative and publicly available
preparatory works relating to the ECCC IR, one is left to speculate about the
rationale for the amendment. Presumably, it was meant to import the ‘rules estab-
lished at the international level’ (assuming that the burden on the prosecution is
one of them) in order to empower the OCP as a litigant in a trial. Being clearly a
bow in the adversarial direction, the amended provision has far-reaching—and
39Rule 87(2) ECCC IR. Cf. Rule 87(2) ECCC IR: ‘La Chambre fonde sa décision sur les seules
preuves qui ont été produites au cours de l’audience et débattues contradictoirement.’ (emphases
added).
40Case 002/01 Trial Judgment, supra note 8, §§ 26 and 34.
41Ibid., § 31 (statements going to proof of the acts and conduct of the accused given by a witness
who is deceased and unavailable for confrontation may exceptionally be admitted but cannot be
the decisive basis for any conviction), § 61 (admission of witness and civil party statements in
place of oral evidence is allowed insofar as they are relevant to proof of matters other than the
acts and conduct of the accused). E.g. Decision on Objections to the Admissibility of Witness,
Victim and Civil Party Statements and Case 001 Transcripts Proposed by the Co-Prosecutors
and Civil Party Lead Co-Lawyers, Nuon Chea and others (002/19-09-2007/ECCC-E299), Trial
Chamber, 15 August 2013, §§ 28 and 41–42.
42Rule 87(1) ECCC IR (French version): ‘Pour condamner l’accusé, la Chambre doit avoir
l’intime conviction de sa culpabilité’.

43Duch Trial Judgment, supra note 8, § 45; Case 002/01 Trial Judgment, supra note 8, §§ 22
and 35. In both judgments, the Trial Chamber clarified that it had adopted a ‘common’ approach
evaluating, in all circumstances, the sufficiency of the evidence.
44Cf. Rule 87(1) ECCC IR (12 June 2007) (‘The Trial judges shall weigh all such evidence inde-
pendently in deciding whether guilt has been proven beyond a reasonable doubt.’).
disconcerting—consequences for the procedural role of the OCP and the nature of
the ECCC trial process. In essence, the rule was taken out of context and trans-
planted from one procedural model into another in the way insensitive to the struc-
tural features of the receiving model. It is dissonant with the ‘inquisitorial’ logic of
the ECCC investigations and trials that is encoded not only into the ECCC
Agreement and the ECCC Law, but also in other Rules. This transplantation
ignores the material differences between the functions and powers of the OCP, on
the one hand, and those of the prosecution in other international and hybrid crimi-
nal tribunals on the other.
First, an inquiry into the charges against a specific individual is within the com-
petence of the OCIJ, not the OCP.45 The OCP’s role prior to the judicial investiga-
tion is limited to conducting a preliminary investigation and to filing with the
OCIJ of an introductory submission, any supplementary submission(s), and a case
file, including any material that could be exculpatory, which is to provide a basis
for a neutral investigation.46 Upon transfer of the authority over investigation to
the OCIJ, the OCP—like other parties—may only participate therein indirectly
and should not interfere with the OCIJ’s activities. The OCP may examine the case
file, request the OCIJ ‘to make such orders or undertake such investigative action
as they consider useful for the conduct of the investigation’, and appeal the OCIJ
decisions.47 The OCP (and the other parties) do not collect evidence on their own
but only conduct an analysis of the information from public sources and evidence
contained in the case file.48 Upon the conclusion of judicial investigation, the OCP
may request further investigative action and appeal the CIJs’ decisions to reject
such requests; in case the OCP agrees that the investigation has been concluded,
they prepare a final submission and request the OCIJ either to commit the charged
person to trial or to dismiss the case.49 Again, this is to emphasize the OCP’s neu-
tral role. The CIJs are not bound by the OCP’s submissions in deciding whether to
indict the person (subject to appeal).50
It is clear that the OCP’s role in respect of the investigation is not that of a par-
tisan agency building its case prior to trial. The Co-Prosecutors are the originators
of the charges who define their scope in the introductory and any supplementary
submissions, which are binding on the OCIJ.51 However, the OCP, like any other
party, has no case of its own of which it would be a master.52 Where the OCIJ
makes a decision to indict a person, the case at trial is no equivalent of the ‘prose-
cution case’ in adversarial systems. As a consequence of the expectation of
45Rules 55–70 ECCC IR.

46Rules 50–54 ECCC IR; Rule 53(2) ECCC IR.
47Rule 55(6) and (10) ECCC IR.
48Chea and Smith 2010, at 154–156; Ciorciari and Heindel 2014, at 388–389.
49Rule 66(1), (3), and (5) ECCC IR.
50Rule 67 ECCC IR.
51Rule 55(2) and (3) ECCC IR.
52Vasiliev 2012, at 757.
400 S. Vasiliev
impartiality of the OCP and OCIJ,53 evidence is not ‘owned’ by the OCP but
forms part of the case of the court.54 The (initial) absence of the case for the OCP
to prove obscures the meaning of its ‘burden of proof’ at trial.
The ECCC procedure for trial preparation does not remove this uncertainty. In
advance of the initial hearing, the Co-Prosecutors (and other parties) may submit
to the Chamber a list of witnesses and experts they wish to be summoned and
other evidence they wish to be examined, accompanied by detailed information.55
Subject to admissibility criteria set out in Rule 87, parties, including the OCP, may
also request the Chamber to admit any new evidence at any stage of the trial and
thus after its initial stage.56 This enables the OCP to have some influence on the
shape of the case at trial and in a sense equips it for the discharge of the burden of
proof.57 But such influence is not decisive. The terms of the inquisitorial system
endow the OCP with ‘tenancy’ rather than real ‘ownership’ of the case. The
Chamber may refuse to hear any witness if it considers that this ‘would not be
conducive to the good administration of justice’.58 Furthermore, Rule 80 implies
the OCP’s knowledge not only of the evidence placed on the dossier by the OCIJ
but also of specific investigative leads and possibly evidence the OCP are request-
ing to call (including any witnesses). While the examination of the case file may
help the Co-Prosecutors to prepare for the role of a party with burden of proof,
their ability to formulate and pursue a certain ‘theory of a case’ at trial is weak-
ened by their distance from the investigation, the lack of control over it, and insuf-
ficient knowledge of any additional evidence. The need to overcome that gap
might demand of the OCP strenuous efforts and competences that are formally
unavailable. This could prompt the OCP to conduct a parallel inquiry or even a
‘shadow investigation’ incompatible with the idea of an exclusive judicial
inquest.59
Further, the procedure for the examination of evidence at trial implies the pre-
dominance of judges as fact-finders and provides parties with a residual role. In
this light, the imposition of the burden of proof on one of the parties is something
of an oddity. Without a case of its own, and without much control over the case it
is supposed to prove before the Trial Chamber, the OCP is clearly not a dominus
litis in the same way as parties are in an adversarial system.60 As officers of justice,
53Rule 53(2) and (4) ECCC IR; Rule 55(5) ECCC IR.
57Vasiliev 2010, at 74–76.
58Rule 80bis(2) ECCC IR. See also Rule 87(3) ECCC IR.
59Vasiliev 2010, at 75–76.
60Vasiliev 2012, at 759–760; Bates 2010, at 31 (noting a lesser role for the OCP at trial).
the OCP may only plead objectively in the ‘general interests of the society’.61 In
their interventions at the substantive hearing—whenever making statements, exam-
ining witnesses or raising objections to further questioning—the Co-Prosecutors
are guided by the overarching objective of the ECCC process – the ascertainment
of the truth.62 This emphasis on neutrality makes the imposition on the OCP of the
onus of proof a procedurally illogical and incoherent solution. The adversarial-
style ‘window-dressing’ is at odds with the inquisitorial foundation of the ECCC
procedure and a manifestation of a broader problem of the ECCC IR being ‘an
awkward mix of common and civil law elements’.63
Indeed, the OCP’s role should not be to ‘prove the guilt beyond reasonable
doubt’ but rather to assist the Chamber in establishing the guilt or innocence of the
defendant and in determining an appropriate sentence in case of conviction. Given
that truth-finding is an objective shared by the Trial Chamber and the
Co-Prosecutors, an effort on the OCP’s part to actively persuade trial judges of the
guilt of the defendant ‘beyond reasonable doubt’ would be superposed by, and
come in tension with, the judges’ own role in fact-finding.64 The Chamber’s truth-
finding mandate—which guides its choice of evidence, manner of questioning, and
its management of the proceedings—renders the prosecution’s burden redundant
and inappropriate because the court is fully equipped to meet its own epistemic
needs without overt partisan prompting. By contrast, the French and Cambodian
Codes do not impose the burden of proving the guilt on the public prosecutor and
adhere to the principle of free evaluation. In determining the issue of guilt or inno-
cence, the judges evaluate evidence in accordance with their ‘innermost convic-
tion’ (intime conviction).65 The smuggling into Rule 87(1) of the standard ‘beyond
reasonable doubt’ to be met by a party, which is extraneous to the inquisitorial phi-
losophy, gives the ECCC trial system an ‘adversarial’ touch and sets it adrift
anchorless from its point of origin. It obscures the OCP’s role at trial and imbues it
with a schizophrenic tension of needing to be neutral officers of justice while hav-
ing a partisan agenda to pursue. It is unsurprising then if the defence becomes
wary of this duplicity and perceives the OCP as a wolf in sheep’s clothing, rather
than an impartial actor.
61Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil
Party Lawyers to Make submissions on Sentencing and Directions concerning the Questioning
of the Accused, Experts and Witnesses Testifying on Character, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-E72/3), Trial Chamber, 9 October 2009 (‘Duch decision on civil par-
ties’), §§ 20–22. For discussion, see Vasiliev 2012, at 710.
62Rule 94(1)(b) ECCC IR; Rules 85(1), 87(4), 90(1), and 91(3) ECCC IR. See also Duch deci-
sion on civil parties, supra note 61, § 34.

63Ciorciari and Heindel 2014, at 442.
65Articles 321 and 350 CCP of Cambodia; Article 427 Code of Criminal Procedure of France
(‘the judge decides according to his innermost conviction’).

402 S. Vasiliev
15.2.3 Lack of Shared Culture
The life of the ECCC’s procedural law is richer than black-letter rules, which
account for the law-in-action only to some extent. Because formal rules are open-
ended and accord actors with discretion, the operation of the ECCC’s procedural
model in practice has been shaped by the interpretations of formal rules by key
actors, who think and reason from the entrenched notions of what a sound judicial
process amounts to and what their roles should be therein. Although an ‘inquisito-
rial’ court on the books, the ECCC is not a sociologically homogenous but a mixed
legal-cultural environment that draws professional participants with backgrounds
in different legal cultures, most notably common law and civil law. However, in
domestic contexts, it is a shared legal culture that allows procedural actors to sing
from the same hymn sheet, ensures the smooth running of the system, and mini-
mizes fundamental challenges to procedure and related litigation.
The ECCC’s procedural script has mostly been unobjectionable to civil law
participants familiar with, and experienced in, the inquisitorial system. But it was
bound to raise misgivings among actors who had been trained and had practiced in
common law systems, and were therefore less likely to endorse the basic inquisito-
rial principles.66 Similarly, the ECCC’s ‘inquisitorial’ foundation was not apt to be
embraced unreservedly by practitioners with prior experience in adversarial or
mixed procedural settings, in particular in other international or hybrid criminal
tribunals. The lack of understanding or acceptance of the premises of the ECCC
system or, for that matter, the ways in which it has been run (as opposed to how it
should be run or how it operates, for example, in France), has led to its rejection
and de-legitimization among categories of professional players.67 This could not
but polarize issues that would have otherwise not arisen, or that would have been
resolved with a routine operation in a culturally homogenous system working on
clear terms agreeable to all. Difficulty of reconciling divergent views and dealing
effectively with any differences fed mistrust of the parties, most notably towards
the OCIJ in respect of how investigations were conducted.68 The lack of a shared
culture and consensus on how the ‘inquisitorial’ system is to be administered
resulted in resistance by parties, particularly the defence, giving rise to disputes
and litigation at every turn.
It was reported that the OCIJ’s international side had been populated mostly by
civil-law lawyers but the OCP had been dominated by common-law lawyers and
66See also Bates 2010, at 31 (on judicial investigation as a procedure ‘entirely alien to lawyers
from a common law background’) and 47, § 134 (‘problematic that lawyers from the common
law tradition have had difficulties in understanding or adapting to the civil law tradition’).
67Ciorciari and Heindel 2014, at 388–390.
68CIJ Lemonde did not make secret of his view that many of the challenges to the OCIJ’s work
stemmed from the lack of understanding or unwillingness to understand the civil law system:
e.g. reported in ibid., at 392 fn 117. See also Jackson and Brunger 2014, at 168 (referring to a
respondent who spoke of ‘quite a few tensions in the ECCC as to how investigations should pro-
ceed’ in connection with legal-cultural differences).
practitioners with work experience in other international and hybrid criminal courts
with ‘adversarial’ process.69 All defence teams in Cases 001 and 002 included
international defence co-lawyers with an extensive experience as counsel before
the ICTY, ICTR, and SCSL. Furthermore, international counsel in the two of the
Case 002 defence teams (Ieng Sary and Ieng Thirith) were from a common law
background, while international co-lawyers for Nuon Chea and Khieu Samphan are
Dutch and French, respectively. The presence of common law counsel in Case 002,
as well as the previous exposure of all counsel to the (mixed) procedural practice
before international tribunals, had an substantial impact on the chosen strategy and
positioning of the defence vis-à-vis the OCIJ. Reportedly, this created an additional
difficulty of some defence lawyers adapting to and accepting the inquisitorial
premises of the ECCC system.70 Legal-cultural differences have compounded the
working relationships and generated tensions between the ECCC organs and
actors.71 Thus, in adversarial systems, a defence counsel’s role in contested cases is
to act as a diligent and zealous advocate. Counsel must vigorously represent the
clients’ interests by ensuring the protection of his or her fair trial rights, searching
for exculpatory evidence and challenging the prosecution evidence, and exercising
vigilance that judges remain independent and impartial. However, before the
ECCC, the defence teams were allowed neither to conduct their own investigations
nor to confront witnesses questioned by the OCIJ, unless it organized a confronta-
tion.72 To make matters look even more suspect for the defence, judicial investiga-
tion is predominantly confidential, including vis-à-vis the parties.73 Against the
backdrop of interference by Cambodian authorities, this raised endless questions
regarding the quality, rigour, and neutrality of investigations, which, from the
defence perspective, mostly remained without a satisfactory answer. This partially
explains why the defence in Case 002 were persistently distrustful of the judicial
investigation and questioned its impartiality and completeness. The impression that
the investigation was biased could arise already from the fact that it had been trig-
gered by the OCP’s introductory submission alone and without input from the (pro-
spective) defence. This impression was only strengthened by the CIJs’ repeated
rejection of the measures proposed by the defence for the collection of exculpatory
evidence, as well as by their failure to respond to requests for investigative actions
on time and to provide proper reasoning for judicial orders.
The defence’s resistance to the CIJs manifested itself, among others, in the
numerous challenges to the case file and decisions on investigative requests,74
69E.g. Bates 2010, at 47, § 134.

70Jackson and Brunger 2014, at 168 (referring to the unwillingness or inability of certain proce-
dural players at the ECCC to adapt).
71Bates 2010, at 47, § 134.
72Rule 60(2) ECCC IR and Article 153 CCP of Cambodia.
73Rule 56(1) ECCC IR.
74On weak aspects of the OCIJ’s work in Case 002 and defence challenges, see Ciorciari and
Heindel 2014, at 377 and 387–393.

404 S. Vasiliev
motions for disqualification of the CIJs and challenges to impartiality of their

staff,75 and a consistent strategy not to cooperate with the judicial investigation.
The Case 002 defendants did not admit facts and refused interviews to the OCIJ
throughout most of the investigation, in the exercise of their right to remain
silent.76 This conduct, albeit formally within the Rules, evinced the kind of com-
bative and polarized attitude that is not very usual in a traditional ‘inquisitorial’
setting and was therefore difficult for the CIJs to understand and accept.77
Challenges to the judicial investigation continued even before the Trial Chamber,
which was, however, not satisfied that the alleged procedural defects in the investi-
gation and political interference had a tangible impact on the conduct of the pro-
ceedings.78 Similarly, during the trial phase the Case 002 co-accused used the full
arsenal of adversarial tactics available to them under the ECCC’s ‘inquisitorial’
system. Although on episodic occasions the defendants agreed to give evidence
and responded to questions, for the most part they invoked their right to remain
silent and declined to submit to questioning.79 They explained this attitude, among
others, by the alleged violations of their fair trial rights throughout the proceedings
75Such challenges are not uncommon in the tribunals, but the ECCC inquisitorial model has cer-
tainly provided more pretexts or reasons for bringing them: e.g. Decision on Ieng Sary’s Appeal
Against the Letter Concerning Request for Information Concerning Legal Officer David Boyle,
Nuon Chea and others (002/19-09-2007-ECCC-A162/III/6), Pre-Trial Chamber, 28 August 2008;
Decision on Ieng Sary’s Application to Disqualify Co-Investigating Judge Marcel Lemonde,
Nuon Chea and others (002/09-10-2009-ECCC-7), Pre-Trial Chamber, 9 December 2009;
Decision on leng Sary’s Request for Appropriate Measures Concerning Certain Statements by
Prime Minister Hun Sen Challenging the Independence of the Pre-Trial Chamber Judges Katinka
Lahuis and Rowan Downing, Nuon Chea and others (002/20-10-2009-ECCC-5), Pre-Trial
Chamber, 30 November 2009.
76Bates 2010, at 49, § 120 (except for a few early interviews, the Case 002 co-accused
refused to answer the CIJs’ questions). See also Closing Order, Nuon Chea and others
(002/19-09-2007/ECCC-D427), OCIJ, 15 September 2010, §§ 17 (the case file included 46 writ-
ten records of interviews with the charged persons, which is indeed marginal as compared to the
amount of other evidence on which the closing order was based).
77Jackson and Brunger 2014, at 168 (‘The judge [CIJ] could not understand this approach,
as he was used to accused persons speaking to him and fully participating in the process of
investigation.’).
78Case 002/01 Trial Judgment, supra note 8, § 42. See e.g. Decision on Ieng Sary’s
Motion for a Hearing on the Conduct of the Judicial Investigations, Nuon Chea and others
(002/19-09-2007-ECCC-E71/1), Trial Chamber, 8 April 2011; Decision on Nuon Chea Motions
regarding Fairness of Judicial Investigation (E51/3, E82, E88 and E92), Nuon Chea and others
(002/19-09-2007-ECCC/-E116), Trial Chamber, 9 September 2011; Decision on Nuon Chea’s
Request for a Rule 35 Investigation regarding Inconsistencies in the Audio and Written Records
of OCIJ Witness Interviews, Nuon Chea and others (002/19-09-2007-ECCC-E142/3), Trial
Chamber, 13 March 2012; Decision on Defence Requests Concerning Irregularities Alleged to
Have Occurred During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2,
E241 and E241/1), Nuon Chea and others (002/19-09-2007-ECCC-E251), Trial Chamber, 7
December 2012.
79Rules 21(1)(d) and 90(1) ECCC IR. Detailing Khieu Samphan’s and Nuon Chea’s cooperation
during the Case 002/01 trial, see Case 002/01 Trial Judgment, supra note 8, §§ 28–29, 40, and 74.
and by the Court’s failure to properly address them.80 The Case 002 defendants
have recurrently—yet to no avail—challenged the independence and impartiality
of the trial judges81 and questioned the adequacy of measures taken by the Court
to counter political interference and pressure by the Cambodian government.82
It appears, therefore, that the Case 002 defendants were determined to give the
ECCC a hard time – which they were, of course, in their full right to do. They did
nothing to alleviate the burden of investigation incumbent on the severely under-
resourced OCIJ and that of proving the guilt at trial incumbent on the OCP.
Besides, if they had chosen not to contest at least some of the alleged facts, the
Trial Chamber would have been able to consider those facts as proven in accord-
ance with Rule 87(6).83 This could have removed the need to examine a large
amount of evidence in order to prove or disprove the relevant facts, and it would
have expedited the trial to some degree. It is remarkable that comparable problems
did not surface in Case 001, whereby litigation on side issues was minimal.
However, the Duch case can hardly be considered as representative. Duch was an
‘exemplary defendant’, in the sense that he had provided extensive and voluntary
cooperation to the CIJs by admitting incriminating facts and responsibility for the
crimes committed at S-21. Despite an infamous split between his national and
international co-lawyers, resulting in their inconsistent final pleas during the clos-
ing stage,84 Duch’s repeated admissions at trial made the task of establishing the
truth and his guilt—the OCP’s burden of proof—considerably less onerous.
Next to other issues specific to Case 002, the lack of a shared legal culture can
serve as a partial explanation of the radical differences between the defence strategies
in Cases 001 and 002, which arguably had consequences for the length of those trials.
80Case 002/01 Trial Judgment, supra note 8, § 40–78.

81E.g. Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests,
Nuon Chea and others (002/19-09-2007-ECCC-E5/3), Trial Chamber, 28 January 2011; Decision
on Ieng Thirith, Nuon Chea and Ieng Sary’s Applications for Disqualification of Judges Nil
Nonn, Silvia Cartwright, Ya Sokhan, Jean-Marc Lavergne and Thou Mony, Nuon Chea and oth-
ers (002/19-09-2007-ECCC-E55/4), Trial Chamber, 23 March 2011; Decision on Motions for
Disqualification of Judge Silvia Cartwright, Nuon Chea and others (002/19-09-2007-ECCC-E137/5),
Trial Chamber, 2 December 2011; Decision on Application for Disqualification of Judge Silvia
Cartwright, Nuon Chea and others (002/19-09-2007-ECCC-E171/2), Trial Chamber, 9 March 2012;
Decision on Applications for the Disqualification of Trial Chamber Judges, Nuon Chea and others
(002/19-09-2007-ECCC-E314/12), Trial Chamber, 14 November 2014.
82Decision on Rule 35 Applications for Summary Action, Nuon Chea and others
(002/19-09-2007-ECCC-E176/2), Trial Chamber, 11 May 2012; Decision on Application for

Immediate Action Pursuant to Rule 35, Nuon Chea and others (002/19-09-2007-ECCC-E219/3),
Trial Chamber, 22 November 2012.
83Rule 87(6) ECCC IR (adopted on 11 September 2009, Rev. 4).
84In contrast with the defence’s final submissions and international co-lawyer’s plea to the
Court to show lenience at sentencing in view of Duch’s remorse, his national co-lawyers orally
pleaded for an acquittal, and Duch confirmed that the national lawyers had been duly instructed
and subsequently dismissed his international co-lawyer. See Transcripts, Kaing Guek Eav
(Duch) (001/18-07-2007-ECCC-E1/80.1), Trial Chamber, 25 November 2009, at 79 et seq.; 26
November 2009, at 8–9 and 78–9; and 27 November 2009, at 53 and 60.
406 S. Vasiliev
Of course, such differences stem, first and foremost, from Duch’s personal decision to
admit responsibility and provide information to the ECCC and from the Case 002
defendants’ choice to do otherwise. But it may well be that the attitude of the Case 002
co-accused was to a considerable extent shaped by their (international) co-lawyers.
They all either were trained in a domestic common law setting or became savvy in the
‘adversarial’ methods of conducting defence due to the previous exposure to interna-
tional criminal practice and experience in political cases.85 Thus, by bringing their
‘foreign’ styles and influences into the ECCC’s ‘inquisitorial’ system, the Case 002
lawyers stretched its boundaries and made it as ‘adversary’ as it could possibly get.
Importantly, the ECCC’s procedural system hinges upon the idea of a comprehen-
sive and impartial judicial inquiry. This presumes a degree of trust in the judicial
authorities that was simply not there, at least as far as Case 002 is concerned. In
inquisitorial systems, the smooth and expeditious conduct of the proceedings to a
considerable extent depends upon the cooperative attitude on the part of the defence
and on its refraining from taking every opportunity to challenge judges and their deci-
sions. Unsurprisingly, the system went into a skid when pushed onto the ‘adversarial’
track due to the lack of evidentiary cooperation and the polarization between the
defence teams and the Court, which increased the amount of litigation. This may be a
reason why the ECCC’s hybrid variation on the inquisitorial theme did not present
considerable advantages in terms of efficiency, as may have been expected. While this
issue will be revisited below,86 any conclusions about the viability (or otherwise) of
the ‘inquisitorial’ paradigm based on the ECCC’s experience should be subject to a
wide margin of error. This is not only because the ECCC procedural law, despite its
‘inquisitorial’ foundation, is in fact hybrid, but also because such is the legal-cultural
environment in which it has been practiced. The ECCC’s procedural operation is not
nearly the average way in which inquisitorial systems can be expected to be run.
15.3 ECCC’s Trial Model at Work
15.3.1 Structure and Management of Trial
Like in some other tribunals (ICTY and ICTR), the ECCC trial proceedings follow
the merged scheme whereby no bifurcation into a guilt-determination and sentenc-
ing phase is envisaged.87 All evidence is examined during the trial irrespective of
85In particular, Khieu Samphan’s first international (French) co-lawyer, Jacques Vergès, was
well-known for a non-conventional, politicized style of conducting defence. He had honed his
défence de rupture in numerous high-profile cases in France (Klaus Barbie being one of them)
and practiced it to a certain extent (less successfully perhaps) before the ECCC. See e.g. Warning
to International Co-Lawyer, Nuon Chea and others (002/19-09-2007-ECCC-C26/5/22), Pre-Trial
Chamber, 19 May 2009, §§ 13–16 and at 10.
86See infra Sect. 15.4.
87Rule 98(5) ECCC IR.
whether it relates to the issue of guilt or innocence or (solely) to sentence.88

Without distinct cases for the parties, the evidentiary phase of substantive hearing
is structured thematically rather than amounting to a sequence of presentations by
each party. The organizing principle is chronological or per subject-matter and
sentencing is to be addressed after hearing any verdict-related evidence.89 The evi-
dentiary process is thereby submitted to the epistemic needs of the court, as
opposed to the procedural logic of allowing each of the parties an opportunity to
present its case.90
In Case 001, the Trial Chamber handed down a list of seven topics on which the
accused, civil parties, witnesses, and experts were to be questioned and ruled that
the regular order of questioning was to be repeated with respect to each set of
facts, topic by topic.91 Thus, the hearing of evidence was organized by subject,
rather than by party from whom evidence originates, as is usual in ‘adversarial’ tri-
als. The order of evidence on specific themes was determined in scheduling orders
issued in advance of the relevant segments of the trial. The thematic scheme
allows the court, upon having the accused examined on a relevant subject, to hear
all other evidentiary sources ‘in the order it considers useful’ regarding the same
subject.92 The epistemic advantage of this approach is that it enables a coherent
narrative of events to emerge and may ensure a better comprehension of underly-
ing facts and evidence. By contrast, the adversarial process is bifurcated as the evi-
dence relating to the same subjects is allocated to different parts of the trial, which
may polarize and fragment the account of facts. That said, the ECCC’s experience
in Case 001 was that the thematic approach at times entailed time-consuming
objections to the relevance of questions to a specific topic. This required the court
to decide when to hear witnesses and experts who can testify on several subjects.93
In Duch, the Chamber determined on a case-by-case basis whether to hear wit-
nesses and parties on several relevant subjects at once or to recall them in due
course.94 Thus, Duch’s own evidence also had to be broken down under different
rubrics, although confining it to the topics relevant at any given time was difficult
given his cooperative attitude and willingness to provide information.
88Duch decision on civil parties, supra note 61, § 15.

89Ibid.,§§ 16–17.
91Direction on the Scheduling of the Trial, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E26),
Trial Chamber, 20 March 2009 (‘Duch trial direction’), § 9.1 (‘Issues relating to M-13’,
‘Establishment of S-21 and the Takmao prison’, ‘Implementation of CPK Policy at S-21’, ‘Armed
conflict’, ‘Functioning of S-21 including Choeng Ek’, ‘Establishment and functioning of S-24’,
and ‘Issues relating to the character of the Accused’).
92Rules 90 and 91(1) ECCC IR.
93Gibson and Rudy 2009, 1008–1009 (referring to the testimony in Duch of the expert Craig
Etcheson).
94E.g. Transcript (Trial Day 4), Kaing Guek Eav (Duch) (001/18-07-2007-ECCC), Trial
Chamber, 6 April 2009, at 2–3.

408 S. Vasiliev
The substantive hearing in Case 002 (Nuon Chea et al.) was also structured
based on the thematic principle, which ultimately served to allocate charges con-
tained in the gargantuan indictment into several truncated trial segments. The
Nuon Chea et al. case-management challenges have been unprecedented in inter-
national criminal practice. Over and above the broadly defined charges involving
an extensive range of facts and events that allegedly took place in different geo-
graphical areas throughout the country, the immense volume of evidence to be
heard, and the number of co-accused in the dock (initially four), the extraordinary
difficulty posed by the case was that three of the co-accused were over eighty
years old by the time their trial was about to commence and all of them were in
frail physical and mental health. As noted, none of them had made admissions dur-
ing the investigation while during trial Nuon Chea and Khieu Samphan only selec-
tively responded to questions but mostly refused to speak.95 Although a more
cooperative attitude in itself would have been unlikely to radically shorten the
trial, admissions under Rule 87(6) could have reduced the quantity of evidence
subject to examination, thereby possibly expediting the process.
The declining health and advanced age of the defendants required of the Trial
Chamber to excel in ‘geriatric jurisprudence’. With the prospect of completing the
giant Case 002 diminishing every day, it had to adopt special measures for manag-
ing the trial. Initially, the Chamber indicated four big themes to be addressed.96
But the plan had to be changed to ensure that justice could be done and a verdict
delivered at least on some of the charges stated in the Closing Order. In February
2011, Rule 89ter was adopted allowing the Court, when the interests of justice so
require, at any stage to order the separation of proceedings in relation to one or
several accused and concerning any part or the entirety of charges contained in an
indictment and to determine the order in which the severed cases shall be tried and
adjudicated.97 In accordance with the freshly minted rule, in September 2011 the
Chamber ordered severance of the unwieldy Case 002 into an unspecified number
of ‘mini-trials’ dealing with categories of factual allegations in the closing order,
with Case 002/01 being the first one to be tried.98 As opposed to severance of
charges or accused leading to distinct proceedings with completely separate
95At the start of the case, Nuon Chea spoke spontaneously and extensively for several days
but later he interrupted cooperation. Similarly, Khieu Samphan initially indicated his will-
ingness to be examined but he ultimately withdrew due to the lack of confidence in the court:
see e.g. Withdrawal of Notice of Intent Pursuant to Internal Rule 90, Nuon Chea and others
(002/19-09-2007-ECCC-E287), Defence, 30 July 2013; Submissions by Mr Khieu Samphan’s
Defence Regarding the Questioning of the Accused, Nuon Chea and others (002/19-09-2007-
ECCC-288/4), Defence, 5 July 2013.
96Transcript of Initial Hearing, Nuon Chea and others (002/19-09-2007-ECCC-E1/4.1), Trial
Chamber, 27 June 2011, at 8.

97Rule 98ter ECCC IR (adopted 23 February 2011, Rev. 7).
98Severance Order Pursuant to Internal Rule 89ter, Nuon Chea and others
(002/19-09-2007-ECCC-E124), Trial Chamber, 22 September 2011 (‘Nuon Chea and others
severance order’), § 2.
treatment of evidence, the purpose of this measure was to manage the trial without
splitting a case file. This could be achieved by bringing the scope of the first trial
segments and each of the subsequent segments to manageable proportions.
Severance was hoped to enable the court ‘to issue a verdict following a shortened
trial, safeguarding the fundamental interest of victims in achieving meaningful and
timely justice, and the right of all Accused in Case 002 to an expeditious trial’.99
Out of five country-wide policies of the Khmer Rouge regime charged in the
closing order,100 only one was selected initially for ‘detailed factual consideration’
as part of Case 002/01: the two phases of population movement to rural areas. The
first trial segment was limited to allegations concerning evacuation of Phnom Penh
in April 1975 (phase 1), population movement from other locations in 1975–77
(phase 2), and crimes against humanity allegedly committed in the course of those
operations, including murder, extermination, persecution (except on religious
grounds), forced transfer and enforced disappearances. The crimes site—co-opera-
tives, worksites, security centers, and execution sites—relevant to phase 3 of popu-
lation movements, all allegations of genocide, persecution on religious grounds as
a crime against humanity, grave breaches of the 1949 Geneva Conventions, and
regulation of marriages were deferred to future segments.101
The first trial segment was projected as a foundation for the subsequent
phase(s) on remaining charges. Therefore, it also addressed the general role of the
accused in all Khmer Rouge policies.102 Eventually, the Trial Chamber agreed to
expand Case 002/01 by adding the execution of the former Khmer Republic sol-
diers and officials at Tuol Po Chrey that took place upon takeover of Phnom Penh
in April 1975. According to the Chamber, those were ‘a logical extension of the
existing allegations in Case 002/01’ and their incorporation would not have
99Nuon Chea and others severance order, supra note 98, § 8.

100Closing Order, Nuon Chea and others, supra note 76, § 1525.
101Nuon Chea and others severance order, supra note 98, §§ 5–8; Annex: List of Paragraphs and
portions of the Closing Order relevant to Case 002/01, Amended Further to the Trial Chamber’s
Decision on Ieng Thirith’s Fitness to Stand Trial (E138) and the Trial Chamber's Decision on
Co-Prosecutors’ Request to Include Additional Crime Sites Within the Scope of Trial in Case
002/01 (E163), Nuon Chea and others (002/19-09-2007/ECCC-E124/7.3), Trial Chamber, 8
October 2011; Decision on Co-Prosecutors’ Request for Reconsideration of the Terms of the
Trial Chamber’s Severance Order (E/124/2) and Related Motions and Annexes, Nuon Chea and
others (002/19-09-2007/ECCC-E124/7), Trial Chamber, 18 October 2011, § 10 (declining to
reconsider the decision per the OCP’s request seeking to have phase 2 of population movement
excluded and, nine crime sites, among which S-21 and execution sites Tuol Po Chrey and District
21, included in Case 002/01).
102Decision on Co-Prosecutors’ Request for Reconsideration of the Terms of the Trial Chamber’s
Severance Order, supra note 101, §§ 10 and 11; Clarification Regarding the Use of Evidence
and the Procedure for Recall of Witnesses, Civil Parties and Experts from Case 002/01 in Case
002/01, Nuon Chea and others (002/19-09-2007/ECCC-E302/5), Trial Chamber, 7 February
2014 (‘Case 002/02 clarification on the use of evidence’), § 5.
410 S. Vasiliev
extended the trial considerably.103 However, the inclusion of the S-21 and District
12 crimes proposed by the parties would have risked ‘a substantial prolongation of
the trial’ and would not have fitted within ‘the logical sequence of the trial in Case
002’.104 The Chamber also referred to the poor health condition of the defendant
Ieng Sary, who was hospitalized at the time, as another consideration militating
against the significant expansion of the scope of Case 002/01.
The substantive hearing of Case 002/01 commenced on 21 November 2011 and
lasted for little less than two years.105 Shortly before it started, the accused Ieng
Thirith was diagnosed with a degenerative mental illness and was found unfit to
stand trial. This led the Court to stay proceedings against her and to sever her case
from Case 002/01, which had consequences for its scope.106 Following several
OCP’s appeals against the Trial Chamber’s decisions to release Ieng Thirith and
consecutive decisions from the Supreme Court Chamber and the Trial Chamber, it
was decided that she would be released from custody but remain subject to post-
release measures and limitations.107 The proceedings against Ieng Sary were ter-
minated in March 2013 following his death.108 By the conclusion of the first trial
segment, there were only two accused in the dock, Nuon Chea and Khieu
Samphan. Although they were found fit to stand trial following medical
103Notification of Decision on Co-Prosecutors’ Request to Include Additional Crime Sites Within
the Scope of Trial in Case 002/01 (E163) and deadline for submission of applicable law por-
tion of Closing Briefs, Nuon Chea and others (002/19-09-2007/ECCC-E163/5), Trial Chamber, 8
October 2012, § 3.
104Ibid., § 2.
105Evidence was concluded on 23 July 2013 and closing statements on 31 October 2013.
106Decision on Ieng Thirith’s Fitness to Stand Trial, Nuon Chea and others
(002/19-09-2007-ECCC-E138), Trial Chamber, 17 November 2011; Response to issues raised

by parties in advance of trial and scheduling of informal meeting with Senior Legal Officer on
18 November 2011, Nuon Chea and others (002/19-09-2007-ECCC-E141), Trial Chamber, 17
November 2011, at 2; List of Paragraphs and Portions of the Closing Order Relevant to Trial
One in Case 002, amended further to the Trial Chamber's Decision on Ieng Thirith's Fitness to
Stand Trial (E138), Nuon Chea and others (002/19-09-2007/ECCC-E124/7.2), Trial Chamber, 30
November 2011.
107Decision on Immediate Appeal against Trial Chamber’s Order to Release Ieng Thirith, Nuon
Chea and others (002/19-09-2007-ECCC-E138/1/7), Supreme Court Chamber, 13 December

2011 (ordering further medical treatment of Ieng Thirith); Decision on Reassessment of
Accused Ieng Thirith’s Fitness to Stand Trial following Supreme Court Chamber Decision
of 13 December 2011, Nuon Chea and others (002/19-09-2007-ECCC-E138/1/10), Trial
Chamber, 13 September 2012 (upon consultation with medical experts, affirming that Ieng
Thirith was unfit to stand trial and ordering her release); Decision on Immediate Appeal
against the Trial Chamber’s Order to Unconditionally Release Ieng Thirith, Nuon Chea and
others (002/19-09-2007-ECCC-E138/1/10/1/5/7), Supreme Court Chamber, 14 December
2012 (ordering the Trial Chamber to implement a series of post-release conditions on
Ieng Thirith); Order on Measures to be Imposed on IENG Thirith, Nuon Chea and others
(002/19-09-2007-ECCC-E138/1/10/1/5/8/4), Trial Chamber, 19 July 2013.
108Termination of the Proceedings against the Accused Ieng Sary, Nuon Chea and others
(002/19-09-2007/ECCC-E270/1), Trial Chamber, 14 March 2013.

examinations on several occasions,109 the co-accused were often hospitalized and,

unless they waived presence, the trial hearings had to be suspended on those days.
Otherwise, they suffered from fatigue and could concentrate only for a limited
number of hours a day. Since they were physically too weak to be present in the
courtroom at all times, they mostly participated in the trial remotely from holding
cells by means of a video-link.
Case 002/01 was overshadowed by an ongoing uncertainty as to whether the
next trial segments would indeed take place. The scope of the first trial as deter-
mined by the Trial Chamber therefore became a major bone of contention between
the parties and the court, giving rise to extensive litigation regarding issues to be
included in this trial segment rather than postponed to later segments. These issues
also brought about an intense judicial debate and even a power struggle between
the Trial Chamber and the Supreme Court Chamber (SCC).110 Considering the
prospect of further trial phases on remaining charges as remote and unrealistic
considering the age and health condition of the accused, the parties repeatedly
sought the revision of the scope of Case 002/01 and pressed for additional crime
sites and incidents to be included, in particular the allegations regarding S-21.111
The Chamber was keenly aware of the possibility that the first segment in the Case
002 trial might well become the last (in hindsight though, that phase could eventu-
ally be completed).112 When the matter of the scope of Case 002/01 reached the
SCC in late 2012, it strongly criticized and annulled the Trial Chamber’s initial
severance decision of September 2011 and all related memoranda. In the SCC’s
view, the severance order was invalid because the trial court failed to hear the par-
ties and the charges retained in Case 002/01 were not reasonably representative of
109E.g. Decision on Nuon Chea’s Fitness to Stand Trial and Defence Motion for Additional
Medical Expertise, Nuon Chea and others (002/19-09-2007/ECCC-E115/3), Trial Chamber, 15

November 2011; Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, Nuon Chea
and others (002/19-09-2007/ECCC-E256/5), Trial Chamber, 2 April 2013. During Case 002/02,
see Decision on Fitness of the Accused Khieu Samphan to Stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E301/11), Trial Chamber, 25 April 2014; Decision on Fitness of the
Accused Nuon Chea to Stand Trial, Nuon Chea and others (002/19-09-2007/ECCC-E301/11),
Trial Chamber, 25 April 2014.
110Heindel 2013c, at 1 (‘inter-chamber power struggles’).
111Co-Prosecutors’ Request for Reconsideration of “Severance Order pursuant to Internal Rule
89ter”, E124/2, Nuon Chea and others (002/19-09-2007/ECCC-E124), OCP, 3 October 2011;
Lead Co-Lawyers and Civil Party Lawyers Request for Reconsideration of the Terms of the
Severance Order E124, E124/8, Nuon Chea and others (002/19-09-2007/ECCC-E124/8), Civil
Parties, 18 October 2011; Co-Prosecutors’ Request to Include Additional Crime Sites within the
Scope of Trial in Case 002/1, Nuon Chea and others (002/19-09-2007/ECCC-E163), OCP, 27
January 2012.
Severance Order, supra note 101, § 11 (‘there is real concern as to whether the Accused will be
physically and mentally able to participate in a lengthy trial’).
412 S. Vasiliev
the closing order.113 By ruling the immediate appeal admissible, the SCC qualified
the exclusion of the charges from Case 002/01 as a de facto stay of proceedings on
those charges that under the circumstances did not carry a ‘sufficiently tangible
promise of resumption as to permit arriving at a judgment on the merits’.114 The
SCC considered as prejudicial for the parties the failure of the Trial Chamber to
provide clear guidance and tangible plan on the number, scope, or duration of tri-
als envisaged after the first segment.115
Following the invalidation of the severance decision by the SCC, the Trial
Chamber reviewed the scope of the first trial segment and took into account the
submissions of the parties.116 As a result, the Chamber re-severed Case 002/01 and
confirmed the original position regarding its scope as including phases one and two
of population movement and executions at Tuol Po Chrey.117 Determined to ensure
that ‘any timely verdict’ could be issued at all,118 on 26 April 2013 it reaffirmed
that Case 002/01 should not extend to the allegations concerning S-21 as being
‘representative’ of the indictment.119 More generally, it dismissed as ‘meaningless’
the notion of ‘representativeness’ used by the OCP and accepted by the SCC, given
that the idea behind severance was that all of the charges would eventually be adju-
dicated upon, if possible, and that none of them were discontinued.120 While the
113Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chamber’s Decision Concerning
the Scope of Case 002/01, Nuon Chea and others (002/19-09-2007-ECCC-E163/5/1/13), Supreme
Court Chamber, 8 February 2013, §§ 48–50.
114Ibid., §§ 24–25.
115Ibid., § 23. See e.g. Nuon Chea and others severance order, supra note 98, § 4 (envisaging to
provide further information regarding subsequent cases in due course).

116Memorandum on Directions to the parties in consequences of the Supreme Court Chamber’s
Decision on Co-Prosecutor’s Immediate Appeal of the Trial Chamber’s Decision concerning the
Scope of Case 002/01, Nuon Chea and others (002/19-09-2007-ECCC-E163/5/1/13/1), Trial
Chamber, 12 February 2013.
117Transcript, Nuon Chea and others (002/19-09-2007/ECCC-E1/176.1), Trial Chamber, 29
March 2013, at 2–4.

118Decision on Severance of Case 002 Following Supreme Court Chamber Decision of 8
February 2013, Nuon Chea and others (002/19-09-2007/ECCC-E284), Trial Chamber, 26 April
2013, § 125 (referring to: ‘(1) the advanced age and physical frailty of the remaining Case 002
Accused; (2) the public interest in achieving a verdict in relation to at least a portion of the Case
002 Closing Order; (3) judicial manageability of Case 002/01 in the light of the late stage of trial,
including possible prejudice to the Accused that may stem from further expansion of its scope;
(4) the uncertain impact upon the length of proceedings in Case 002/01 should S-21 be added to
its scope; and (5) uncertainty regarding the duration of financial support to the ECCC.’).
119Ibid., §§ 4, 122, 141, and 147. See Heindel 2013d, at 3 (arguing that the decision is ‘not a
reevaluation of how Case 002 should have been severed, but a decision about whether adding the
S-21 security center is necessary to make the trial reasonably representative.’).
120Decision on Severance of Case 002 Following Supreme Court Chamber Decision of 8
February 2013, Nuon Chea and Khieu Samphan, supra note 118, §§ 98–99 (‘Legally, severance
is exclusively a trial management tool and in the absence of a mechanism for the withdrawal of
any charges in the Indictment, all charges will be adjudicated unless an Accused becomes unfit to
stand trial or proceedings are terminated by his death.’).
Trial Chamber provided a projected outline for two additional trial segments, it
was unwilling to hand down a detailed plan at that point.121 Contingencies
involved in trying elderly and ailing co-accused, as well as the uncertainty about
the continued donor support to the ECCC, being the circumstances beyond the
court’s control, impaired its ability to provide for the overall planning or at least
discouraged it from expending much effort on that in advance.
The appeal by the OCP and the Nuon Chea defence team against the Trial
Chamber’s decision of 26 April 2013 was denied by the SCC on the merits,
although the SCC had something to say about the Trial Chamber’s approach.122
The SCC found that the Trial Chamber, yet again, failed to provide a ‘tangible
plan’ regarding future trial segments and was ‘unprepared’ to try the remaining
charges within Case 002/01—and, implicitly, at all.123 Nonetheless, it accepted
that the case-management concern of having at least any portion of Case 002 adju-
dicated legitimately prevailed over the ‘postulate that Case 002/01 be reasonably
representative of the Indictment’.124 Therefore, the SCC ordered that Case 002/02
commence as soon as possible after the closing statements in Case 002/01 and
include, at a minimum, the charges related to S-21, a worksite, a cooperative, and
genocide.125 As an alternative to the projected adjournment for at least eight
months for the purpose of drafting the Case 002/01 judgment,126 the SCC pro-
posed to establish a second trial panel that could start hearing evidence relating to
121Ibid., § 153. For a tentative plan of Case 002/02 and Case 002/03, see ibid., at 71–74.
122Decision on Immediate Appeals against Trial Chamber’s Second Decision on Severance of
Case 002, Summary of Reasons, Nuon Chea and others (002/19-09-2007-ECCC-E284/4/7),
Supreme Court Chamber, 23 July 2013.
Case 002, Nuon Chea and others (002/19-09-2007-ECCC-E284/4/8), Supreme Court Chamber,
25 November 2013, § 68 (the Trial Chamber is ‘unprepared to adjudicate within Case 002/01
any of the charges remaining in the Closing Order’) and § 69 (finding that the Trial Chamber
‘abdicat[ed] the resolution of judiciable issues to external factors, such as physical condition of
the Co-Accused or the financing of the ECCC, which perpetuates the state of uncertainty for the
parties and effectively invites a de facto amnesty on unadjudicated charges.’).
124Decision on Immediate Appeals Against Trial Chamber's Second Decision on Severance of
Case 002: Summary of Reasons, Nuon Chea and Khieu Samphan, supra note 122, §§ 11–13;
Decision on Immediate Appeals against Trial Chamber’s Second Decision on Severance of
Case 002, supra note 123, §§ 24, 50–52, 67–68. See also ibid., §§ 64–65 (discussing the Trial
Chamber’s erroneous rejection of the similarity between the notion of ‘representativeness’ of the
charges and the ICTY Rule 73bis(D) trial management power).
Case 002, supra note 123, § 72.

126Annex, Decision on Severance of Case 002 Following Supreme Court Chamber Decision
of 8 February 2013, supra note 118, at 71 fn 270 (projecting the timeframe of 8 months after
the conclusion of evidence in Case 002/01 for the Trial Judgment (i.e. the first quarter of 2014)
and 18 months thereafter for a verdict on appeal (i.e. late 2015). However, the Case 002/01 Trial
Judgment was delivered only in the third quarter of 2014 (7 August 2014), i.e. more than a year
after the conclusion of evidence in that case.
414 S. Vasiliev
the remaining Case 002 charges immediately.127 However, the SCC clarified nei-
ther the legal basis for its proposed solution nor whether it was sustainable in
financial and administrative terms.
Amid the growing skepticism about the prospect of the second trial segment
within the court,128 the preparation for Case 002/02 started long before the issu-
ance of the trial judgment in Case 002/01. In December 2013 the Trial Chamber
held a trial management meeting to discuss the second phase of Case 002. The
SCC’s proposal to create a second panel was rejected as impracticable.129 In April
2014, the Trial Chamber issued a decision on the additional severance of Case 002
and determined the scope of Case 002/02 as including the portions of the closing
order pertaining to: internal purges; political persecution of former Khmer Rouge
officials at S-21, 1st January Dam Worksite, and Tram Kok Cooperative; forced
marriage and rape nationwide; and genocide against the Vietnamese and Cham
peoples and related religious persecution in the forced movement of the Cham
minority (but excluding crimes committed by the Revolutionary Army of
Kampuchea in Vietnam).130 Having heard the parties’ submissions, the Trial
Chamber determined, qua preliminary indication or guideline, the sequence of top-
ics for Case 002/02, considering it undesirable to start it by hearing evidence on
facts already considered in Case 002/01 and in Case 001 (in particular in relation
to the S-21 security center).131 Because the second severed case continued the
Case 002/01 proceedings and was based on the same case file, the evidence
127Decision on Immediate Appeals Against Trial Chamber's Second Decision on Severance

of Case 002: Summary of Reasons, supra note 124, § 11; Decision on Immediate Appeals
against Trial Chamber’s Second Decision on Severance of Case 002, supra note 123, §§
73–74; Order Regarding the Establishment of a Second Trial Panel, Nuon Chea and others
(002/19-09-2007-ECCC-E284/4/7/1), Supreme Court Chamber, 23 July 2013.
128M.G. Karnavas, ‘KRT Judges Maintain Pretense of Interest in Next Mini-Trial’, The
Cambodia Daily, 16 December 2013; J. Wallace, ‘Last Attempt at a Crucial Trial’, International
Justice Tribune, No. 157, 16 April 2014, at 3 (reporting Judge Cartwright of the Trial Chamber
saying: ‘If we manage to do more parts of this trial, there will never be another severance order,
so what will happen is the two remaining accused will die or become unfit.’).
129President’s Memorandum on the Proposal to Appoint a Second Panel of the
Trial Chamber to Try the Remaining Charges in Case 002, Nuon Chea and others
(002/19-09-2007-ECCC-E301/4), Trial Chamber, 20 December 2013.
130Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and
others (002/19-09-2007-ECCC-E301/9/1), Trial Chamber, 4 April 2014, §§ 43–44 and at

21; Annex: List of Paragraphs and portions of the Closing Order relevant to Case 002/02,
E301/9/1.1, 4 April 2014.
131Decision on Sequencing of Trial Proceedings in Case 002/02, Nuon Chea and others
(002/19-09-2007/ECCC-E315), Trial Chamber, 12 September 2014, §§ 7–11 and 14 (prescribing

the following order: A. Cooperatives; B. Worksites; C. Treatment of targeted groups; D. Security
centers and internal purges; E. Regulation of marriages; F. Nature of the armed conflict; G. Role
of the accused).
examined during Case 002/01 did not need to be reintroduced.132 The SCC upheld
the decision on additional severance, but it pointed out the ongoing uncertainty as
to whether the severance was a trial-management device or the one that in eviden-
tiary terms had the effect of creating separate and distinct trials, which it resolved
by upholding the latter position.133
The Trial Chamber’s resolution to commence Case 002/02 proceedings before
issuing the Case 002/01 judgment and before the SCC could complete any related
appeal proceedings met with repeated objections and considerable resistance by
the defence. In requesting the postponement of Case 002/02, the defence argued
that the Case 002/01 judgment could not form a proper foundation for future
phases of Case 002 until the issuance of the SCC judgment, in the absence of
finality (res judicata) and legal certainty, and that it could not simultaneously pre-
pare for both Case 002/02 trial and Case 002/01 appeal. However, the Trial
Chamber denied the request referring, among others, to the duty to ensure an
expeditious trial and the SCC’s earlier direction to start the Case 002/02 eviden-
tiary hearings as soon as possible after the Case 002/01 closing submissions.134
The repeated defence requests to suspend Case 002/02 until the Case 002/01
appeal is completed and the verdict becomes final were denied,135 although the
Trial Chamber did grant the parties’ requests for a reduced hearing schedule, in
light of the physical frailty of the accused and the need for the parties to prepare
their appeal briefs.136 Despite this accommodation, the decision to proceed with
132Case 002/02 clarification on the use of evidence, supra note 102, §§ 5–7 (stating that the effect
of severance of Case 002 was ‘to separate the charges which would normally be adjudicated in
a single trial into two or more manageable phases, not to create two separate and distinct trials).
133Decision on Khieu Samphan’s Immediate Appeal against the Trial Chamber’s Decision
on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and others
(002/19-09-2007-ECCC-E301/9/1/1/3), Supreme Court Chamber, 29 July 2014, §§ 70, 72, and
86–90 (finding that the Trial Chamber’s decision did not ensure the requisite legal certainty
regarding the status of the remaining charges and the procedural consequences of the additional
severance, but providing the necessary clarification and declaring a stay of the proceedings in
respect of the charges remaining outside of the scope of Cases 002/01 and 002/02).
134Decision on Khieu Samphan Request to Postpone Commencement of Case 002/02
until a Final Judgment is Handed Down in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E301/5/5/1), Trial Chamber, 21 March 2014, §§ 7–16. See Decision on
Immediate Appeals against Trial Chamber’s Second Decision on Severance of Case 002, Nuon
Chea and Khieu Samphan, supra note 123, §§ 72 and 76.
135Decision on Khieu Samphan’s Request to Postpone the Commencement of Case 002/02,
Nuon Chea and others (002/19-09-2007/ECCC-E314/5), Trial Chamber, 19 September 2014,

§§ 7–9; Decision on Khieu Samphan’s urgent request for reconsideration of scheduling order on
the substance of Case 002/02, Nuon Chea and others (002/19-09-2007/ECCC-E314/5/3), Trial
Chamber, 16 October 2014.
136Scheduling Order for Hearing on the Substance in Case 002/02, Nuon Chea and others
(002/19-09-2007/ECCC-E316), Trial Chamber, 19 September 2014, at 3; Scheduling Order for

Evidentiary Proceedings, Nuon Chea and others (002/19-09-2007/ECCC-E322), Trial Chamber,
3 November 2014 (scheduling the initial segment of evidentiary hearings in Case 002/02 on the
basis of two sitting days per week).
416 S. Vasiliev
Case 002/02 brought about a breakdown of communication between the defence

and the court and led to further delays. Citing their inability to participate due to
the need to prepare an appellate brief and insufficiency of resources, the defence
for Khieu Samphan boycotted the substantive hearing, which had commenced on
17 October 2014, for a number of sitting days. The Trial Chamber designated the
same counsel as court-appointed counsel but, upon their continued failure to
attend as per the Chamber’s order, it adjourned the proceedings until January 2015
and disciplined the counsel concerned.137 Given these difficulties and the slow
progress of proceedings, it remains to be seen how far the plan of conducting the
second (and possibly third) ‘mini-trial’ in Case 002 will go, and whether it will be
possible for the Chamber to return the further verdict(s).138
The experience with the thematic sequencing of trial in Case 002 has demon-
strated that, although this approach enables the court to examine evidence in a log-
ical sequence, it does not, in and of itself, provide a panacea to the problem of
massive charges. The ECCC has faced serious challenges splitting the case into
distinct and hermetically sealed ‘mini-trials’ taking place consecutively. Given that
the factual allegations in the indictment are closely interrelated and some of the
witnesses may be in a position to testify on several distinct topics, considerations
of efficiency and coherence in principle warrant joint proceedings. Severance of
Case 002 led to the parties’ feeling disoriented regarding the subjects that could
legitimately be addressed during the first segment and the degree of detail, result-
ing in protracted litigation on the appropriate scope of the case and related ineffi-
ciencies. The confusion about the parameters of relevance of the policies excluded
from Case 002/01 during the examination of issues in the first segment hung like a
dark cloud over that trial.139 Disputes about the relevance of certain topics, includ-
ing dams, S-21, internal purges, and time periods beyond 1975–79 (for example,
the 1970 American bombings of Cambodia), continued throughout the trial. The
criteria under which questions could exceptionally be allowed on these issues
137Ruling following TMM of 28 October 2014, Nuon Chea and others

(002/19-09-2007/ECCC-E320/1), Trial Chamber, 31 October 2014; Order to Refer Conduct
of Counsel for Khieu Samphan to Appropriate Professional Bodies, Nuon Chea and others
(002/19-09-2007/ECCC-E330), Trial Chamber, 19 December 2014, §§ 4–9, 16, 29 (the counsel
did not turn up on 17–18, 21, 24 November 2014) and at 14–15 (referring the misconduct of the
defence counsel to the respective national bar associations).
138Considering the current scope of Case 002/02, the projected Case 002/03 might cover phase
3 of population movement and the targeting of Buddhists. See Annex, Decision on Severance
of Case 002 Following Supreme Court Chamber Decision of 8 February 2013, supra note 118,
at 72–74. See ibid., at 72 fn 272 (an approximate time indication for Case 002/03 after the con-
clusion of Case 002/02 (2016–2017): a trial verdict in 2019–2020 and a verdict on appeal in
2020–2021).
139Heindel 2013b, at 1–2 (the Trial Chamber qualified as relevant the evidence showing the exist-
ence and development of the three alleged criminal policies outside of Case 002/01, as opposed
to evidence regarding their implementation on the ground, but ‘this evidentiary fine line has not
always been clear or clearly observed.’).
remained unclear.140 Although the defence itself ventured outside of the relevant
topics, it repeatedly objected to the questioning of witnesses and admission of
documents on certain issues, being concerned with the possible violation of the
right to confrontation. The Trial Chamber’s responses to the objections appeared
inconsistent, resulting in the frustration of the parties due to the perception of une-
qual treatment.141
The root cause of most trial-management problems the ECCC has been facing
in Case 002 is known: it is the immense indictment that pursued the ambition of
writing down a complete historical record of the crimes committed under the
Khmer Rouge regime, regardless of whether completing that mega-trial would be
feasible.142 As a way to enable the ECCC to make the scope of the case more
manageable, the latest amendment to the ECCC IR (16 January 2015) introduced a
rule authorizing the OCIJ, at the time of notification of conclusion of investigation,
to reduce the scope of judicial investigation by excluding certain facts set out in an
introductory or supplementary submission(s), as long as the remaining facts are
representative of their scope.143 In a similar vein, the Trial Chamber is now
empowered, after hearing the parties, to truncate the scope of the trial by exclud-
ing certain facts set out in the indictment, provided that the remaining factual basis
is representative of its scope, and terminate the proceedings concerning the
excluded facts.144 While the former managerial power might only prove useful in
the context of Cases 003 and 004, the Trial Chamber can be expected to use its
new competence under Rule 89quater and exclude any ‘non-representative’ facts
not covered by Case 002/02.
15.3.2 Witness Examination
Next to structural issues, the approach to the examination of evidence is another

important parameter that defines the nature of the trial process. Depending on the
order in which the court and parties take turns in examining witnesses, experts,
and civil parties, as well as the admissible character and extent of any questioning,
legal fact-finding takes shape of either court-led or party-led inquiry. Under the
ECCC’s thematic approach to the examination of evidence, the first round of sub-
stantive questions by a judge or one of the parties is normally meant to address a
140Fung 2013.
141Heindel 2013a, at 1–2; Fung 2013 (during week 52 of evidentiary hearings, the Trial Chamber
was less strict with regard to questions on purges than other matters which also fell outside of the
scope of Case 002/01, and the defence objections were overruled).
142See Lemonde and Reynard 2013.
143Rule 66bis ECCC IR (the judicial investigation concerning the excluded facts shall be
terminated).
144Rule 89quater ECCC IR.
418 S. Vasiliev
full range of relevant subjects within the witness’s expertise, whereas any subse-
quent questioning becomes residual. The extent of any follow-up examination
depends on whether the initial questioning covers all of the ground and on its
degree of detail. Repetitive questioning should be disallowed by the President of
the Trial Chamber proprio motu or following the parties’ objections where it is not
conducive to the ascertainment of the truth.145 The President also moderates the
other participants’ questioning of accused, civil parties, experts, and witnesses, by
permitting specific questions to be asked, by determining their order, and, except
for questions asked by the OCP and lawyers, by posing them to the source of evi-
dence.146 This framework endows the President with powers to control the course
and extent of any questioning, in consultation with other judges.
Throughout the Duch case, the examination of the accused, witnesses, experts,
and civil parties was conducted under the traditional ‘inquisitorial’ arrangement
implicit in Rules 90–91.147 In order to be able to conduct initial examination in a
meaningful way, the Trial Chamber must have intimate knowledge of the case file
and any additional evidence called at trial. Next to dispensing of a myriad of pre-
liminary matters and requests, which take a significant amount of time, the need to
acquire a solid knowledge of the case in advance may explain why it took the
Chamber at least seven months in Case 001 to prepare for the substantive hear-
ing.148 In Duch, the Chamber took lead in the examination of evidentiary sources.
It conducted the interrogation of the accused, questioned witnesses and experts,
and heard civil parties first, before letting the OCP, civil parties’ co-lawyers, and
defence co-lawyers pose their questions.149 Unlike the ICTY and ICTR, which
drew upon the common law modalities of examination-in-chief, cross-examina-
tion, and re-examination, the ECCC refrained from using those and, therefore,
deemed inapplicable the associated rules on admissible questions.150 The only
substantive limitations on the scope of questioning were the relevance to the sub-
jects identified for examination and the ban on repetition.151 Civil party lawyers in
145Rules 85(1) and 91(3) ECCC IR.

146Rules 90(2) and 91(2) ECCC IR.
147Petit and Ahmed 2009, at 170 and fn 66.
148The closing order in Case 001, dated 8 August 2008, was confirmed and partially amended
by the Pre-Trial Chamber on 5 December 2008. The initial hearing, which formally marks the
commencement of trial proceedings at the ECCC but still is preparatory in nature, was held in
mid-February 2009. The substantive hearing, i.e. the trial stricto sensu, commenced on 30 March
2009. Hence, the time that lapsed between the issuance of the closing order, subject to appeal,
and the hearing of the case on the merits, is estimated as nearly eight months.
149Direction on the Scheduling of the Trial, Kaing Guek Eav (Duch) (001/18-07-2007/
ECCC-E26), Trial Chamber, 20 March 2009 (‘Duch trial direction’), § 9.2.

150Transcript, Kaing Guek Eav, 6 April 2009, supra note 94, at 3 (common law cross-examina-
tion has no place before the ECCC).

151Duch trial direction, supra note 149, § 9.2; Transcript, Kaing Guek Eav (Duch) (001/18-07-
2007-ECCC), Trial Chamber, 8 April 2009, at 19, 21–22; Transcript (Trial Day 9), Kaing Guek
Eav (Duch) (001/18-07-2007-ECCC), Trial Chamber, 21 April 2009, at 46–47 and 73–74.
particular were instructed to care to pose accurate and comprehensible questions

and to use respectful language when addressing the accused.152 Nevertheless, the
instances of circular or inappropriate examination, especially by civil party law-
yers, persisted.153
The importance of the rule against repetitive questioning is difficult to overesti-
mate in the ECCC context. The absence of a distinction between the legitimate
scope and nature of admissible questions per examiner and per stage of testimony
increases the chance of repetition. This is especially so when combined with the
basic feature of the thematic scheme—a consecutive questioning on the same set
of facts and topics by multiple examiners. In Duch, the risk of overlap was particu-
larly high due to the presence of four pairs of co-lawyers representing civil parties.
While it is reasonable to expect of examiners to refrain from repetitive questioning
that does not serve the fact-finding goal, but rather frustrates the party or witness
that is being heard, the rule was far from always followed and all parties were
occasionally at fault. That said, it is ultimately the responsibility of the President
and the Trial Chamber as a whole to ensure that the accused, witnesses, and civil
parties do not have to respond to the same questions again and again. The Duch
practice demonstrated that keeping questioning in check could be a difficult task.
Observers report having been struck by the frequency of repetitious questions that
would be unthinkable in any other tribunal. This may have to do not so much with
the national Presiding Judge’s inexperience or inability to moderate hearings as
with the distinctive patterns of communication and cognition peculiar to the
Cambodian culture. According to Thierry Cruvellier, who sat through much of the
Duch trial, circular—as opposed to Western-style ‘pyramidal’ and linear—narra-
tives are accepted as normal in Cambodia.154 For the fairness sake, trial monitors
have pointed out that in the course of Case 001 the Trial Chamber judges
improved their trial management performance considerably, including control over
the examination of witnesses by the parties.155
Another noteworthy aspect of the Chamber’s role in the Case 001 evidentiary
process was that it took over the experience of other courts, in particular the ICTY,
152Transcript, Kaing Guek Eav, 8 April 2009, supra note 151, at 1 and 9; Transcript, Kaing Guek
Eav (Duch) (001/18-07-2007-ECCC), Trial Chamber, 9 April 2009, at 40–41.
153Bates 2010, at 36, § 109 (reporting ‘the often repetitious and irrelevant questioning from Civil
Party lawyers’); Ciorciari and Heindel 2014, at 426 (‘The lack of coordination resulted in repeti-
tive questioning, not only with the prosecution, but also amongst the [civil party] teams.’); Hoven
2014, at 93 (reporting a judge’s view that ‘the questioning by the Civil Party Lawyers tended to
slow the trial for no particularly useful purpose, because it didn’t add much […] to the material
that we needed to decide on guilt or innocence, reparations, admission of Civil Parties, etc.’).
154Cruvellier 2014, Chap. 14 (‘The president of the trial chamber […] asks—repeatedly—that
people cease repeating themselves. But though it is his job to keep order in his courtroom, there’s
little chance that the judge will solve the problem so long as he himself sees narrative repetition
as perfectly normal.’).
155Bates 2010, at 36, § 109 (‘the judges had grown in competence in regulating the hearings’);
Cruvellier 2014, Chap. 14.

420 S. Vasiliev
of limiting the length of examination in advance. It issued scheduling orders allo-

cating a specific amount of time for questions and enforced those time limits dur-
ing the trial by applying the ‘stopwatch approach’.156 For instance, in Duch the
Co-Prosecutors were given thirty minutes to examine witnesses after the
Chamber’s questioning and extensions were granted only after debate. This sched-
uling practice may be appropriate for the ‘managerial judging’ rendition of the
‘adversarial’ model at the ICTY, but it arguably does not comport with the basic
‘inquisitorial’ premises of the ECCC procedure for proof-taking. The role of
judges as case-managers is already subsumed within their role as active truth-seek-
ers, which is exactly the function of the ECCC trial judges. Regardless of any
managerial concerns, they are under a duty to ensure that all questioning serves
effective truth-finding, and that not a single minute is wasted in useless examina-
tion, even if it occurs within the initial timeframe allocated to a party for question-
ing. By the same token, the examination that is effective and promotes
truth-finding should in principle be allowed to continue beyond any pre-defined
time limits. The Chamber may not abdicate its truth-seeking mandate by interrupt-
ing a testimony half-way with reference to a formal time limit that has been deter-
mined in abstracto – and thus, unavoidably, in a somewhat arbitrary fashion in
advance. Particularly where the examiner and a witness do not share the same cul-
ture (and more generally within the Cambodian social context),157 it will take
some time before a party can establish rapport with the witness and elicit the
desired information that was the testimony’s projected contribution to truth-find-
ing.158 The ‘stopwatch’ approach in itself neither ensures the utility of any given
line of examination and the effective use of time nor guarantees that testimony
would actually achieve its purpose within a set timeframe. In any event, it falls to
the President to check on substance all of the questions asked, independently of
any time limits, and to be reasonably flexible in their application.
As for the sequence and questioning, the magnitude and complexity of Case
002 rendered the strict adherence to the default (civil law) approach to witness
examination impractical. Expecting the trial judges and their staff to master the
case file to a degree that would equip the judges for a lead role in respect of proof-
taking was unrealistic. This would have put a serious strain on the Trial Chamber
resources. Besides, as noted, the judges must resolve a wide array of matters
before the trial can start and are not in a position to devote full time to the exami-
nation of the dossier. Given the volume of evidence in the case file and additional
proposed evidence, it may be impossible for them to get thoroughly prepared for
the primary examination of all accused, witnesses, civil parties, and experts on all
relevant matters within a limited timeframe. A projection from Case 001 drives
156Criticalof this practice in Case 001, see Gibson and Rudy 2009, at 1019–1021.
157E.g. Cruvellier 2014, Chap. 14 (‘When a Cambodian judge makes a point, the reply he
receives is accepted unconditionally, with no follow-up question. The journey from a specific
question to an appropriate answer is often a long and winding one.’).
this point home: if it took the judges over seven months to study the case file in
the relatively straightforward Case 001, over and above all other procedural activi-
ties in the same period, they would have had to make a considerably greater time
investment in the preparation for Case 002. One way of reducing this burden was
to delegate the responsibility for conducting the initial questioning to the parties.
The burden-sharing between the court and the parties can prove expedient espe-
cially where a witness is proposed by a party in accordance with Rule 80(1)–(2).
The proposing party is likely to have a clearer idea about the specific reasons for
requesting the summons and will be more familiar with her prospective testimony
(although the degree of familiarity will in any event be limited due to the parties’
passive role in the investigations). That party then may be in a better position to
conduct an effective initial questioning, especially where the Trial Chamber had
little time and resources to prepare. Similarly, a Lead Co-Lawyer for civil parties
may be better placed to conduct the first questioning of a civil party.
In line with these considerations, the Internal Rules were adjusted ahead of the
trial in Case 002 (on 17 September 2010) in order to accommodate an alternative
questioning sequence. First, a limitation in Rule 90(2) to the effect that the parties
may question the accused ‘after the judges’ was removed. Second, Rule 91bis was
adopted authorizing the President to ‘determine the order in which the judges, the
Co-Prosecutors and all the other parties and their lawyers shall have the right to
question the Accused, the witnesses, experts and Civil Parties’. These amendments
relaxed the initial rigidity of the ECCC IR in respect of the questioning order, but
it is not self-evident from the text of the Rules whether they were meant to alter
the judge-dominated character of the trial inquiry at the ECCC. Rules 90 and 91bis
do not expressly refer to the delegation of responsibility; nor do they preclude the
court from allowing any of the parties to conduct the questioning first. It was the
Chamber’s instruction issued shortly before the Case 002/01 trial that clarified that
the desired effect of the amendments was indeed to allow the Court to shift the
bulk of examination to the parties:
Pursuant to Internal Rule 90, the President may allocate certain Accused, witnesses, Civil
Parties, or experts to Trial Chamber judges who will then have primary responsibility for
questioning that person. In addition, the President may, by memorandum, assign to the
Co-Prosecutors, individual Defence teams or Lead Co-Lawyers the primary responsibility
for examining specified witnesses, experts or Civil Parties. Such assignment shall be noti-
fied to the party concerned well in advance of the witness, expert or Civil Party’s testi-
mony to enable the parties to prepare adequately.159
Extensive reliance on this interpretation of Rule 90 in practice may result in the

watering down of the inquisitorial character of the ECCC trial procedure. If the
court regularly cedes the first turn of the examination and therewith the primary
role in that respect, the fact-finding practice inevitably shifts towards a more party-
dominated process. In Case 002/01, the Chamber had recourse to this arrangement
159Response to issues raised by parties in advance of trial and scheduling of informal meeting
with Senior Legal Officer on 18 November 2011, Nuon Chea and others, supra note 106, at 3.
422 S. Vasiliev
on the vast majority of occasions, although at times the judges did ask substantive
questions after the OCP’s examination.160 It appears that this mode of proceeding
helped the Chamber to reduce the time needed for the trial preparation: consider-
ing the disparity in volume and amount of pre-trial issues to be settled between
Cases 001 and 002, the time taken in trial preparation in the latter case was not
evidently disproportional.161 It bears noting that the new arrangement did create
an impression with some trial participants that, by delegating primary questioning
to the parties, the judges eschewed their ‘homework’, and to some degree abdi-
cated responsibility for the conduct of the trial.162 However, it is uncertain whether
this position is justified, in the absence of indications that the Trial Chamber
judges were not prepared at all times or did not have a good knowledge of the case
file materials.
According to the Case 002/01 trial direction, the accused persons were first to
be examined by the trial judge assigned by the President and then by other judges,
the OCP, Lead Co-Lawyers for civil parties, and by the defence teams in the order
of the Indictment. Defence co-lawyers representing the accused being questioned
had the opportunity to question him last.163 The Chamber put questions to the
accused at any time, after which the parties could ask follow-up questions.
Afterwards, civil parties, witnesses, and experts relevant to the same topic could
be examined. Where the primary responsibility for questioning was reassigned,
judges would pose preliminary questions and the assigned party would conduct
the bulk of questioning.164 When hearing civil parties, the parties were instructed
to guide civil party statements by asking them to focus sequentially on the relevant
topics, followed at the end by a statement concerning the harm suffered. Upon ini-
tial questioning, other parties had an opportunity to pose questions in the same
order as during the examination of the accused (testimony concluding with
defence teams). Like in Case 001, witnesses and experts were to be examined on
160E.g. Advance notice of assignment of examination of three Civil Parties during first trial seg-
ment (5–16 December 2011), Nuon Chea and others (002/19-09-2007-ECCC-E131/10), Trial
Chamber, 23 November 2011 (assigning civil party lead co-lawyers the primary responsibility
for the examination of three civil parties on the facts relevant to the first trial and on their suffer-
ing); Hearing of TCE-38 and TCE-44, Nuon Chea and others (002/19-09-2007-ECCC-E166),
Trial Chamber, 6 February 2012 (delegating responsibility for questioning two witnesses to the
OCP and authorizing it to contact witnesses to determine their availability and assist the Trial
Chamber in planning and scheduling the hearing of their evidence).
161The closing order in Case 002 was filed on 16 September 2010, giving the Trial Chamber
access to the case file. The trial in the first segment began on 21 November 2011. See also
Decision on Immediate Appeals against Trial Chamber’s Second Decision on Severance of Case
002, Nuon Chea and Khieu Samphan, supra note 123, § 68, fn 196 (indicating that the Trial
Chamber took 14 months in the preparation for the Case 002 trial).
162Ciorciari and Heindel 2014, at 377 (citing an interview with defence co-lawyer Karnavas).
163Response to issues raised by parties in advance of trial and scheduling of informal meeting
with Senior Legal Officer on 18 November 2011, supra note 106, at 3.

164Ibid., at 4.
all topics relevant to the current segment of the trial that were within their knowl-
edge, using the established topic sequence, in order to avoid recall.165 Given the
limited scope of the Case 002/01 trial and varying relevance of evidence to the
selected topics, the Chamber did not issue time limits in advance but emphasized
the need for the parties to confine their questioning to the relevant areas and
refrain from repetitive questioning.166 The above-mentioned ‘stopwatch’ approach
to controlling the length of examination that was practiced in Duch was progres-
sively relaxed in the Case 002 proceedings and (informally) abandoned in respect
of some (e.g. character) witnesses.
15.4 Streamlined Process: Where Did the Promise Go?
The foregoing overview of the ECCC trial practice to date provides prompts for
reflection whether, in hindsight, the use of the inquisitorial model in that court
could produce significant efficiency gains, as compared to other courts, and why
the expectation of a more expeditious trial process has proved delusive. Before
that, it bears emphasizing that the ECCC has been facing a vast array of institu-
tional and case-specific obstacles that prevented it from becoming a rapid opera-
tion, let alone a champion of procedural efficiency. As noted, besides disruptions
caused by the senior age and poor health of the co-accused, these have included
the mixed composition of all organs and related cultural and linguistic barriers; a
bifurcate structure of the organs headed by two co-principals (OCIJ and OCP),
which undermined smooth and streamlined decision-making; three official lan-
guages necessitating translation of documents and unavoidable delays; the novelty
of the procedure for many of the participants; and financial shortfalls and uncer-
tainties hovering over the ECCC.167 The impact of these factors is difficult to
overestimate. Under such unfavourable circumstances, even a model that has
proved to be fair and workable in other settings would likely underperform. For
example, in September 2013, a significant number of national staff members went
on strike due to the fact that they had not been paid their salaries for the period of
three months, which posed a serious problem for the Court’s judicial operation.168
165Ibid., at 3.
166Ibid., at 4.
167Bates 2010, at 36, § 109, at 48, § 137, and at 47–8, § 136; Ciorciari and Heindel 2014, at
374–375 and 416–420.

168ECCC press release, ‘Information regarding absent national staff members’, 3 September
2013 (reporting that a budget shortfall for the national component of the ECCC was approxi-
mately US$ 2.9 million for 2013). In addition, in late 2012 the Trial Chamber had to reduce a
number of weekly hearing days for a short period of time, due to unavailability of legal sup-
port staff after several key legal officers left and could not be immediately replaced: ECCC press
release, ‘Trial Chamber Reduces Number of Weekly Hearing Days in Case 002/1’, 23 October
2012; Ciorciari and Heindel 2014, at 419.
424 S. Vasiliev
Given the impact of institutional handicaps, which have nothing to do with the
procedural model as such, the question is whether any delays may specifically be
attributed to the ECCC procedural law and practice.
First of all, the idea that the trial process molded per inquisitorial template
ensures a more expeditious process is based on an uninformed myth or miscalcula-
tion that can be disproved even by a generic analysis of the status in domestic
criminal justice systems. It is true that in civil law systems, such as France,
Belgium, and the Netherlands, an average trial in an ordinary case does not exceed
several hours, or a maximum of a few sitting days in particularly complex cases.
However, trial hearings in those jurisdictions can only be kept smooth and short
provided that pre-trial (judicial) investigations are conducted thoroughly, and that
all of the material evidence is placed on the case file for the trial court to study
beforehand. Judicial investigations in those jurisdictions tend to be resource-inten-
sive and usually take considerably longer periods of time than trial hearings.169
Therefore, it is not self-evident that the inquisitorial scheme per se guarantees a
quicker disposition of criminal cases and a lesser overall length of the proceedings.
In the ECCC context, a proper investigation was bound to consume a significant
amount of time and resources, for the enormity of the cases rendered that task no
less than monumental.170 Over and above its complexity, the OCIJ operation was
encumbered by the unique difficulties of running a two-headed office with the need
for extensive consultations and reliance on a yet another (politically) divided organ,
the Pre-Trial Chamber, for dispute-settlement.171 The further challenge, as noted,
was for the OCIJ to labour under the fire of challenges from both sides, given the
presence of the adversarial-minded OCP and defence in the system. Considering
the structure and ambit of the closing orders, the first International
Co-Investigating Judge (and possibly his staff) espoused the idea of a comprehen-
sive judicial investigation followed by a shorter trial, but this vision was arguably
not shared by any other ECCC organs, including the OCP and the Trial Chamber.
Judicial investigations were bound to become enormous and time-consuming,
which they certainly turned out to be, far in excess of any initial projections.172 The
Case 001 judicial investigation and the issuance of the closing order took slightly
more than 12 months (18 July 2007–8 August 2008), whereas the Case 002
169Bates 2010, at 46, § 133; Ciorciari and Heindel 2014, at 376.

170Bates 2010, at 40, § 119 (quoting CIJ Lemonde that the Case 002 investigation was ‘arguably
the most complex investigation since Nuremberg’) and at 46, § 133; Ciorciari and Heindel 2014,
at 376 (the investigative burden on the CIJ led to an ‘institutional bottleneck’) and 387.
171On national/international divides in the OCIJ and the PTC on sensitive issues, see Ciorciari
and Heindel 2014, at 375 and 403–406; Bates 2010, at 46, § 131 (citing CIJ Lemonde stating
that ‘every decision is like negotiating a treaty’ and that the PTC was not a workable dispute-
settlement mechanism).
172Ciorciari and Heindel 2014, at 376 fn 29 (referring to the international CIJ’s initial estimate of
a six-month investigation followed by a three-month trial). To many, this projection—if it indeed

was made—may appear as implausible from the outset.
investigation and closing order took more than 3 years in total (18 July 2007–15
September 2010). On top of that, one must add about a year taken by the OCP in
the preparation of their introductory submission concerning the first five suspects.
The functions and average length of trial hearings vary by jurisdiction. In civil
law systems that put premium on immediacy and orality (e.g. Germany), in-depth
adversarial debates on the evidence indeed take place, resulting in lengthier hear-
ings on the substance of the case.173 But otherwise trials in civil law systems gen-
erally pursue a limited purpose of producing evidence from a case file and
enabling the court to verify the accuracy of facts established in an official investi-
gation. The parties have an opportunity to raise any related matters and any addi-
tional evidence can be heard, although the dossier would normally already contain
all material evidence. But, even despite the lengthy and comprehensive judicial
investigation, the ECCC could not count on time-saving at trial. Under the ECCC
IR, a substantive hearing is envisaged as a public and oral event reserved for a
genuine inquiry into the merits of the case, as opposed to being a mere check of
the dossier. The evidence on the case file and any additional proof must be pro-
duced in court and there must be an opportunity to have an adversarial debate on
the evidence if it is to serve as the basis for conviction.174 The case file may not
simply be taken over into the trial record without an argument on the evidence.
Given the confidential nature of the investigation, and in the absence of an uncon-
ditional right to confrontation during the same,175 there must have been an open
and public hearing of evidence during trial at the ECCC.
The hybrid structure of the ECCC process that combines a judicial investigation
and an adversarial debate on evidence was portrayed as a ‘promising marriage
between the civil and common law systems, offering the possibility of an efficient,
rigorous judicial investigation followed by a somewhat adversarial, relatively short
trial’.176 Leaving aside the relativity and opaqueness of these adjectives, the very
idea of both ‘somewhat adversarial’ and ‘relatively short’ trials is a contradictio in
terminis. A shortened trial procedure was plainly impossible at the ECCC, given
the extensive charges and volume of evidence for examination. To recall, the trial
stage lasted about eight months in Case 001 (30 March–27 November 2009) and
almost two years (21 November 2011–31 October 2013) in Case 002/01, including
any periods of recess and breaks due to ill health of the accused as well as regular
adjournments, such as the time leading up to closing statements. In Cambodia,
there has arguably been a clear public interest in, and a societal need for, trials
during which the evidence on the key policies of the Khmer Rouge regime could
be produced and probed in an oral and public procedure. Judicially establishing
the truth about the tragic events of the distant past was an important part of raising
173For a comparative analysis of domestic trial procedures, see Vasiliev 2014a, at 231–242.
174Rules 21(1)(a) and 87(2) and (3) ECCC IR.
175Rules 58(4)–(6), 59(3), and 60(2) ECCC IR.
176Ciorciari and Heindel 2014, at 376 (with reference to CIJ Lemonde’s remarks).
426 S. Vasiliev
awareness, generating public debate about Khmer Rouge atrocities, and bringing
closure to victims. The combination of a confidential judicial investigation and an
abbreviated trial would have diminished the legitimacy and validity of the
ECCC.177 However, the joinder of an extensive official investigation and a public
trial could not produce a streamlined and cost-efficient process. The system was
premised on the duplication of fact-finding efforts performed essentially on the
same evidence, being carried out first by the OCIJ (often in parallel with, or fol-
lowing up on, the parties’ own research) and then by the Trial Chamber. The
ECCC may have thus brought together the ‘worst of both worlds’ (meaning the
civil law and common law worlds): a long official investigation and a long (judge-
led) trial.178
In between these judicial phases and worlds lurks another source of delays: the
need for the judges and parties to get up to speed with the case files as a way to
bridge a systemic disconnect from judicial investigations. In both Cases 001 and
002/01, considerable time was spent by the judges in the examination of the case
files and other preparatory activities such as reviewing and deciding upon parties’
requests to call other evidence at trial. The need for judges to prepare was required
by the ‘inquisitorial’ role reserved for them in relation to the examination of evi-
dence, which implies that they were to orchestrate or at least control the truth-
finding process and should have had an intimate knowledge of the evidence. By
contrast, no such extensive effort in studying a case file was expected of the ICTY
or ICTR Trial Chamber judges under the ‘managerial judging’ system, whereby
the trial process still remained party-led. For these reasons, an abstract promise
of the more expeditious process at the ECCC on account of its adherence to the
inquisitorial approach to investigations and trials is false. The ECCC process could
not be more streamlined than that in the context of any previous experiments in
international criminal justice because the Court’s hybrid procedural system pre-
sents a mix of elements that is not geared for expedition, which is without preju-
dice to any other relative advantages it may offer.
The second related question is whether the way in which ECCC trials have
been conducted has been a source of delays and a missed opportunity to expedite
the process. The ECCC’s practice has shown that uneven or complacent modera-
tion of questioning by the President occasionally let irrelevant questions slip in.
But this has arguably not been the major inhibiting factor. By contrast, severance
of Case 002 had the effect of blurring the lines of relevance for questions relating
177Ibid., at 376–377 and 439 (‘lengthy confidential investigations have not led to short, civil law-
style trials due to the legitimate public interest in a robust courtroom vetting of the evidence’);
Bates 2010, at 46, § 133 (‘The principle that justice must be seen to be done is even more impor-
tant in Cambodia where thirty years have passed since the crimes and where the majority of
domestic criminal trials take place without a full examination of the evidence, and many with-
out the accused being present.’) and at 49, § 141 (referring to the secretive OCIJ operation as a
source of public criticism of the ECCC).
178Ciorciari and Heindel 2014, at 377; Bates 2010, at 46, § 132 (citing negative views to that
effect of—unsurprisingly—the common law judges of the Pre-Trial and Trial Chambers).
to the topics falling outside of the scope of the first trial segment. This led to end-
less legal wrangling that consumed significant resources of the parties, the Trial
Chamber, and the Supreme Court Chamber. There was simply no way of splitting
the Case 002 indictment in a neat manner to prevent this litigation from erupting.
In hindsight, any of the three possibilities would have been preferable. First, the
introductory submission and hence the indictment must have been more limited
from the beginning, based on a thinner selection of alleged policies. Second, there
could have been several separate OCP submissions and indictments on the basis of
which genuinely distinct consecutive trials could be held. Third, the closing order
could have been structured in such a manner as to facilitate its breaking down into
separate and distinct trials, although this implies a degree of foresight, coordina-
tion, and a shared vision among the different (judicial) organs of the ECCC that
was not there at the time when the closing orders were being prepared. While in
the circumstances the Trial Chamber arguably had no other choice than to order
severance, the situation like this is best avoided in any future international criminal
practice. The adoption of Rule 89quater goes some way to providing a possible ex
post facto solution to the problem of the mammoth Case 002 indictment. But this
is a surgical solution rather than a real cure because applying it would mean that
some of the facts charged in the closing order would never be adjudicated.
Finally, one aspect of the Trial Chamber’s practice criticized in some quarters
was its slow progress in Case 001.179 Despite Duch’s broad admissions of incrimi-
nating facts and responsibility for the S-21 crimes, his trial still took time compara-
ble to that of an average single-accused contested trial at the ICTY. By contrast, a
guilty plea in the ad hoc tribunals, if accepted as valid, would have led to an imme-
diate disposition of the case and progression to the sentencing stage. Of course,
this speculation assumes that Duch’s admissions would have necessarily been
qualified as a valid guilty plea had he been tried before the ICTY, despite the fact
they were equivocated by recurrent references to superior orders and duress.180
The critique of the ECCC based on the argument that other tribunals would have
likely processed the Duch case much faster is ill-conceived. First, as an ‘inquisito-
rial’ system, the ECCC is unfamiliar with the common law notion of guilty pleas.
Confessions are treated as any other type of evidence and do not exempt the Court
from the obligation to examine the entirety of evidence on which a judgment may
be based.181 It is only in September 2009, i.e. at the end of the Duch evidentiary
hearings, that Rule 87(6) authorizing the Court to treat as proven any uncontested
facts in the indictment was adopted.182 This option was unavailable throughout
179Mentioning this criticism, see Gibson and Rudy 2009, at 1006.

180Rule 62bis(iii) ICTY RPE. See also Gibson and Rudy 2009, at 1006 (despite admissions,
Duch contested his legal responsibility arguing ‘that any failure to comply with orders would
have resulted in his death’, so his was not ‘a trial that can be concluded in a matter of weeks’).
181Rule 87(5) ECCC IR (‘The Chamber shall give the same consideration to confessions as to
other forms of evidence.’); Rule 87(2) and (3) ECCC IR.

428 S. Vasiliev
Case 001 and was added based on the experience with that case, in anticipation of
the Case 002 trial (where it has, however, proven useless as the defendants chose
not to admit anything).
But even if Rule 87(6) had been available at the time of the Duch case, it is not
self-evident that wide resort to it by the Chamber would have been cogent in the
circumstances and that it would have spared it from criticism on other grounds. As
noted, there was a public interest in a comprehensive inquiry into the operation of
the S-21 security center and the personal role of Duch as its chairman. The Duch
trial presented a unique—and the only realistic—opportunity to judicially estab-
lish the ‘material’, as opposed to merely ‘consensual’ or ‘procedural’ truth, about
this grim chapter of Cambodian history before the ECCC.183 The summary dispo-
sition of the case based on the Chamber’s consideration of a large portion of
uncontested facts as proven—let alone on a legal declaration of guilt by the
accused (which is not even a possibility at the ECCC)—would arguably not have
satisfied the imperative demand for justice for crimes committed in S-21.
Therefore, if the Trial Chamber is to take blame for lengthy proceedings in Case
001 at all (which is not suggested here), it should not be on the ground that it
unjustifiably lingered when faced with a cooperative defendant, whereas it could
have concluded the trial much earlier. The ECCC operated within the procedural
framework at the time and in line with the prevailing public interest in a transpar-
ent and credible judicial inquiry into the events of 1975–1979 in Cambodia. The
expedition clearly was neither the only nor the primary objective pursued by the
ECCC in the Duch process. The public production of evidence and the establish-
ment of the truth, including with regard to the accused’s motivations and the detail
of how S-21 was actually run, was far more important.
Despite the pressures posed by the defendants’ poor health condition and
advanced age, the same considerations fully apply to Case 002. The societal need
for oral and public criminal proceedings to deal with Cambodia’s Khmer Rouge
legacy can be appreciated considering the extraordinary public attention to the
work of the Court, which is undoubtedly owing to its well-organized outreach pro-
gramme. Thus, the numbers of persons observing the ECCC proceedings from the
public gallery has been stably high and dwarfs a number of visitors at an average
trial in any other international criminal tribunal. Over 36,000 visitors attended the
Duch hearings before the Trial Chamber and the Supreme Court Chamber,
whereas the number of attendees from among the general public, media represent-
atives, and other categories of visitors, including NGOs, who came to see the Case
002 proceedings, has been no less than 116,000.184
183On different conceptions of ‘truth’, see Vasiliev 2014a, Chaps. 4–5.

184Annex 2: PAS Outreach Figures 2009–2014 as of 30 June 2014, citing the figures of 36,493
persons attending the initial hearing, trial, and appeal in Case 001 (2009–2012) and 116,870 per-
sons attending the Pre-Trial Chamber hearings and preliminary, initial and trial hearings before
the Trial Chamber in Case 002/01 (2011–2014).
15.5 Conclusion
What lessons, if any, can the ECCC trial practice teach to present and future inter-
national and hybrid criminal tribunals? Its trials and tribulations in the first two
cases provide valuable, albeit perhaps not completely unanticipated, insights in
respect of the architecture of international criminal procedure. One is the impor-
tance of coherence in any procedural system, which implies the need for clearly
defined roles of procedural participants and guards against haphazard blending
of elements from different legal traditions that would inevitably lead to systemic
tensions and conflicting mandates in practice. At the ECCC, this concerns, for
example, the roles of the ECCC trial judges as primary truth-seekers and case-
managers, which are concurrent and mutually supportive but not interchange-
able. The judges should not abdicate their primary responsibility for ensuring an
effective and efficient truth-finding process by relying solely on case-management
techniques in conducting the trial. Such techniques as such do not preclude irrel-
evant and repetitive questioning and the waste of court time. Another example of
the confused hybridity of the ECCC procedure is the OCP’s quasi-partisan role at
trial, which hinges on its duty to discharge a burden of proof – next to, or rather
notwithstanding, its quasi-judicial and neutral status throughout the proceedings
and the statutory distance from the investigation.
An issue of note in the ECCC trial practice is the proven difficulty of severing
a large and complex case based on a unitary indictment covering numerous factu-
ally interrelated charges or topics neatly into a series of smaller trial segments to
be dealt with consecutively. In such situations, evidentiary overlaps between the
different phases are unavoidable, and so are the partisan challenges to the scope
of the distinct phases of trial and the relevance of specific lines of questioning.
The related secondary litigation has a high tall on efficiency and judicial economy.
That said, the decision to order severance of Case 002 was made in the context
of an unprecedented trial-managerial force majeure, whereby the Chamber had to
make the best of the unhelpfully giant indictment. In the special circumstances of
that case, another alternative would have been to stay or terminate proceedings in
relation to some of the policies and facts charged in the indictment (upon provid-
ing a legal basis for this measure). Considering that ‘amputating’ a part of indict-
ment is not an ideal solution, severance was arguably an optimal and necessary
measure to ensure that a verdict could be issued at least in respect of some of the
charges. The delivery of the Case 002/01 judgment in August 2014 attests to the
(partial) success of this solution. Whether the Court would be in a position to
complete Case 002/02 and issue the verdict to a considerable extent depends on
the factors that are not fully within the Court’s control, given the senior age and
health condition of the surviving defendants. It also remains to be seen whether
the charges remaining outside of the scope of the first two trial segments would
become subject to reduction and termination as per Rule 89quater. Given that a
sequel to Case 002/02 does not seem to be a very likely prospect, the application
of this Rule in Case 002 can be expected at some point in the future.
430 S. Vasiliev
More generally, does the ECCC’s procedural experience reflect the rise and fall
of the inquisitorial model in international criminal law? Paradoxically, both the
opponents and proponents of civil law arrangements in international criminal tri-
bunals will feel vindicated by observing how the Court has operated and its known
problems. The critics will point to inadequacies of the institute of judicial investi-
gation. In case of the ECCC, it has been vulnerable to the challenges of secretive-
ness, (perceived) lack of impartiality, and inefficiencies related to the duplication
of work of investigating and trial judges. Besides, we will be reminded, in interna-
tional criminal proceedings (and in transitional justice more generally), there is an
overriding societal interest in an oral, public, and adversarial probing of evidence.
This in itself makes a shorter pro forma trial meant to verify the results of the
investigation and have the content of the dossier read onto the trial record a dubi-
ous advantage. In turn, the proponents of the inquisitorial model will say that the
ECCC’s is not the purest known form of inquisitorial process, and that therefore,
any negative experience it has had does not taint the model as such. Besides, the
ECCC’s failures do not necessarily make the protracted ‘adversarial’ trials—a
notorious problem in international tribunals—look any better. Impartial judge-led
investigations still pose advantages where parties do not have equal access to
investigative resources, for evidentiary challenges can better be overcome by an
official court investigator with judicial authority and impartial mandate, rather
than by an investigator representing the interests of a (systemically disadvantaged)
party. Further, party-driven investigations are expansive and not always oriented at
establishing the truth, while a judge-led inquiry, at least in theory, allows narrow-
ing the issues down and may prove more effective in light of the truth-finding
objective. The Cambodian experience, the proponents will claim, does not cancel
the promise of the inquisitorial model in international criminal law.185 It could still
show its best side if put to test in an unadulterated form, whereas in the ECCC it
was sabotaged by parties who, instead of helping run it, let their prejudices stand
in the way.
Both sides would have a point, but they would be speaking past each other.
First, this Chapter has shown that the ECCC procedure is far from a paradigmatic
‘inquisitorial’ specimen, being a ‘pure mongrel’ at best. Any conclusions drawn
from its experience about the inquisitorial ideal-type must be qualified with ref-
erence to the idiosyncrasies of its hybrid procedure and practice. The ECCC’s
institutional and procedural design is not seamless or unproblematic, and it has
engendered delays that normally do not occur in settings endowed with a coher-
ent procedural culture. Second, both camps will readily acknowledge that the
ECCC’s inefficiencies had an array of unique case-driven and institution-specific
reasons which, fortunately, are not likely to recur anywhere else. Its erratic struc-
ture was what it ‘had to be’ because the political compromise between the UN
and the Cambodian government was the prerequisite for establishing the Court.
185Ciorciari and Heindel 2014, at 439 fn 402 (citing CIJ Lemonde who stated that the ‘investigat-
ing judges may still “represent the future” for international criminal trials’).
The imperfect ECCC was better than no ECCC at all. Therefore, there are hardly
any previously unknown lessons to be extracted from this aspect of the ECCC’s
legacy for the future reform of procedural systems in international criminal law.
The Cambodian experiment is no eye-opener: on many issues of the institutional
and procedural structure, the ECCC was the obvious example of how not to do
things, but it was the only possible way of doing them in the circumstances. A
balanced and nuanced assessment of how civil law arrangements fare in complex
international crime cases, as compared to those of common law, would require a
more extensive experience in settings free from the eccentricities that have over-
shadowed the ECCC’s performance.
As indicated at the outset, the key aspect of the ECCC’s procedural legacy for
external consumption in international criminal justice revolves around the question
of which of the known procedural models is a better fit for international criminal
trials. Like with the sweeping critiques of the ‘adversarial’ ad hoc tribunals, the
best thing one can do is to beware of any far-reaching conclusions. There is argu-
ably no superior model in terms of efficiency or correspondence to the goals of
international criminal justice, and no failproof procedural form uniquely tailored
to those goals. The latter remain contested, do not conclusively mandate any spe-
cific arrangements, and can arguably be achieved via different procedural routes in
different contexts. It does not follow from the ECCC experience that the inquisito-
rial model is per se ill-suited for the investigation and prosecution of international
crimes. Critics who, on the one hand, blame the ECCC for spending months sitting
in trial of a defendant who admitted numerous facts and, on the other hand, still
prefer adversarial process to continental-style abbreviated trials in view of its sup-
posedly greater rule-of-law didactic potential, cannot have it both ways. Under an
adversarial scheme, the same trial would have lasted at least as long or, vice versa,
not long enough, depending on whether or not the court would accept Duch’s
duplicitous admissions as a proper guilty plea. Conversely, nor does the ECCC’s
experience confirm that the inquisitorial model is superior to its main alternative
and much less a panacea for the inefficiency problem of international criminal tri-
als. The model’s best performance to date has been where the accused does not
contest incriminating facts and where the defence strategy is cooperative rather
than adversary. It is also telling that in Case 002 the Trial Chamber had to retreat
from the civil-law scheme towards a more party-driven process by delegating the
bulk of examination to the parties. Unconditional adherence to the original regime
was deemed unsustainable and would have arguably drawn out the preparatory
activities enormously.
To conclude, the very question of definitively choosing sides in the dispute over
the ‘right’ model of process for international criminal law is inept. An abstract
quest for an ideal procedure is misguided because the only possible answer is ‘it
depends’. A plethora of relevant factors, ranging from the institutional structure in
which the procedure is administered to the socio-cultural context in which the
court is set to operate, will play a role. There is no ideal framework that automati-
cally guarantees fair and expeditious proceedings in all international crimes cases.
The best procedure is the one tailored to the court’s legal-cultural environment,
432 S. Vasiliev
institutional setting, and operational realities. The unique challenges of interna-

tional criminal practice and ineradicable legal-cultural pluralism of the ICL prac-
tice community militate against rigid one-size-fits-all solutions and uncritical
adherence to templates taken over from domestic jurisdictions. Arguably, a prag-
matic, flexible, and, if need be, variable approach to the conduct of trial process
has much to commend itself, where it is internally coherent and consistent with
procedural certainty in each individual case.186 The ECCC trial practice confirms
that adjustable roles of the court and the parties in relation to the examination of
evidence, anchored to their epistemic needs and limitations, can enhance effi-
ciency of specific trials. The question is then how to help courts and legislators
determine the right parameters of those roles matching the unique challenges and
context of adjudication. In its gradual emancipation from domestic legal cultures
and blueprints, international criminal procedure has been struggling to formulate
and assert its identity. It is the remaining ‘grey area’ of legal-cultural pluralism,
variability, and normative indeterminacy—which is larger than meets the eye—
that will be the main battlefield of (comparative) international criminal procedure
in the years to come.
References
Acquaviva G (2008) New Paths in International Criminal Justice? The Internal Rules of the
Cambodian Extraordinary Chambers. Journal of International Criminal Justice 6:129–151
Bates A (2010) Transitional Justice in Cambodia: Analytical Report. Atlas Project, October 2010
Chea L, Smith W (2010) The Early Experience of the Extraordinary Chambers in the Courts
of Cambodia. In: Bellelli, R (ed) International Criminal Justice: Law and Practice from the
Rome Statute to Its Review, Ashgate, Aldershot
Ciorciari J, Heindel A (2014) Experiments in International Criminal Justice: Lessons from the
Khmer Rouge Tribunal. Michigan Journal of International Law 35:369–442
Cruvellier T (2014) The Master of Confessions: The Making of a Khmer Rouge Torturer. Harper
Collins Publishers, New York
Damaška M (2008a) Problematic Features of International Criminal Procedure. In: Cassese A
et al. (eds) The Oxford Companion to International Criminal Justice, Oxford University
Press, Oxford, pp 175 et seq
Damaška M (2008b) What is the Point of International Criminal Justice? Chicago—Kent Law
Review 83:329–364
De Hemptinne J (2007) The Creation of Investigating Chambers at the International Criminal
Court: An Option Worth Pursuing? Journal of International Criminal Justice 5:402–418
Eser A (2009) The ‘Adversarial’ Procedure: A Model Superior to Other Trial Systems in
International Criminal Justice? Reflexions of a Judge. In: Kruessmann T(ed), ICTY: Towards
a Fair Trial?, Intersentia, Antwerp, pp 206–227
Fung S (2013) Severance Order Issues. Khmer Rouge Trial Monitor, 15 October 2015
Gibson K, Rudy D (2009) A New Model of International Criminal Procedure? The Progress of
the Duch Trial at the ECCC. Journal of International Criminal Justice 7:1005–1022
186For this argument, see Vasiliev 2014a, at 836–931.

Gray T (2013) Cambodia and the Khmer Rouge Trials in 2012 in Review: Will the Court Survive
2013? Westminster Law Review 2
14:115–147
Heindel A (2013a) Accused Nuon Chea Argues Severance Is Inconsistent with His Right to
Confrontation. Cambodia Tribunal Monitor, 10 July 2013
Heindel A (2013b) Legal Commentary: Co-Prosecutors Request Clarification of the Scope of
Case 002/01 Charges. Cambodia Tribunal Monitor, 10 September 2013
Heindel (2013c) Supreme Court Chamber Rules that the Trial Chamber Is Inappropriately
Limiting Its Access to Case 002 Information. Cambodia Tribunal Monitor, 13 March 2013
Heindel (2013d) Trial Chamber Case 002 Severance Decision Upholds Status Quo. Cambodia
Tribunal Monitor, 29 April 2013
Hoven E (2014) Civil Party Participation in Trials of Mass Crimes: A Qualitative Study at the
12:81–108
Jackson J, Brunger Y (2014) Fragmentation and Harmonization in the Development of
Evidentiary Practices in International Criminal Tribunals. In: Van Sliedregt E, Vasiliev S
(eds) Pluralism in International Criminal Law, Oxford University Press, Oxford, pp 159–186
Lemonde M, Reynard J, (2013) Un juge face aux Khmers Rouges. Seuil, Paris
Nice G (2001) Trials of Imperfection. Leiden Journal of International Law 14:383–397
Nice G, Vallières-Roland P (2005) Procedural Innovations in War Crimes Trials. Journal of
Petit R, Ahmed A (2009), A Review of the Jurisprudence of the Khmer Rouge Tribunal. Northwestern
Journal of International Human Rights 8:165–189
Starygin S (2011) Internal Rules of the Extraordinary Chambers in the Courts of Cambodia
(ECCC): Setting an Example of the Rule of Law by Breaking the Law? Journal of Law and
Conflict Resolution 3:20–42
Vasiliev S (2010) The Role and Legal Status of the Prosecutor in International Criminal Trials.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1715465. Accessed 15 June 2015
Vasiliev S (2012) Trial. In: Reydams L, Wouters J, Ryngaert C (eds) International Prosecutors,
Oxford University Press, Oxford, pp 700–796
Vasiliev S (2014a) International Criminal Trials: A Normative Theory. UvA Repro, Amsterdam
Vasiliev S (2014b) The Usages and Limitations of Comparative Law and the Methodology of
International Criminal Procedure. Revista Eletrônica de Direito Penal 2:165–199
Chapter 16
Managing Enormous Mass Crimes
Indictments: The ECCC Severance
Experiment
Anne Heindel
Abstract All international criminal courts struggle to balance their obligation to

hold expeditious trials with victims’ expectation that accused will be charged com-
prehensively. Some courts have held prodigious trials lasting up to a decade, while
others have sought to accelerate verdicts by dropping charges or adjudicating
only one type of crime. Faced with an enormous closing order indicting elderly
accused, the ECCC Trial Chamber tried a novel approach: It severed a small num-
ber of charges to be the first topic in a series of trials based on the full indict-
ment. The procedure was intended to increase the likelihood that the court would
issue at least one judgment, which then would be used as a ‘foundation’ for subse-
quent case proceedings. However, the Trial Chamber’s failure to acknowledge and
address consequent legal ambiguities raised fair trial concerns and likely squan-
dered potential time savings. The problem-laden ECCC experience suggests that
other courts should not adopt this severance practice.
Keywords International criminal procedure · Admission of evidence · Fair

trial · Interest of justice · Criminal charges · Representative charges · Judicial
bias · Severance · Trial management
The author is a Legal Advisor to the Documentation Center of Cambodia (DC-Cam).
A. Heindel (*)
DC-Cam, Phnom Penh, Cambodia
e-mail: anne.heindel@gmail.com

DOI 10.1007/978-94-6265-105-0_16
436 A. Heindel
Contents
16.1 Introduction........................................................................................................................ 434
16.2 Limits on Discretion to Sever............................................................................................ 436
16.2.1 ‘Interests of Justice’................................................................................................ 436
16.2.2 Authority to Cut or Dismiss Charges...................................................................... 437
16.2.3 Obligation to Consult with the Parties.................................................................... 439
16.2.4 Obligation to Include Charges Representative of the Indictment........................... 441
16.3 Legal and Procedural Challenges of Severance................................................................. 443
16.3.1 Restricting the Scope of Evidence Presented in the First Trial.............................. 443
16.3.2 Using Evidence and Findings from the First Trial as a Foundation
for Subsequent Trials.............................................................................................. 448
16.3.3 Bias Concerns......................................................................................................... 454
16.4 Conclusion......................................................................................................................... 456
16.1 Introduction
The closing order in the second case before the Extraordinary Chambers in the
Courts of Cambodia (ECCC or Court) indicts four octogenarian former Khmer
Rouge leaders for a countrywide joint criminal enterprise comprising five criminal
policies spanning the entire Democratic Kampuchea era (1975–1979): forced
movement, the establishment of cooperatives and worksites, purges, the targeting
of specific groups, and forced marriage.1 Due to the advanced age and fragile
health of both the accused2 and many regime survivors, and concerns that they
would not live until judgment, before the start of evidentiary hearings the ECCC
Trial Chamber severed the closing order for the purpose of holding expedited
sequential trials related to different parts of the indictment. A two-year trial (Case
002/01) addressing primarily the policy of forced movement was completed in
November 2013, with a verdict reached in August 2014. The Trial Chamber began
evidentiary hearings in a second trial (Case 002/02) in January 2015, and at that
time continued to countenance the possibility that there would be a third yet-to-be-
defined case against surviving accused.3
1See Closing Order, Nuon Chea and others (002-09-2007/ECCC-D427), Co-Investigating
Judges, 15 September 2010, §§ 156–58.

2Of the four Case 002 accused, one was removed from the case before the start of trial due to
severe dementia, and a second died in March 2013, shortly before the close of evidentiary hear-
ings in the first ‘mini-trial.’
3See Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon Chea and
others (002/19-09-2007/ECCC-E301/9/1), Trial Chamber, 4 April 2014, § 28, discussing the

possible burden of testifying on witnesses in trials after the completion of 002/02. Evidentiary
hearings were originally scheduled to begin in October 2014, but were postponed due to a
boycott of proceedings by the Khieu Samphan team, who argued that they needed time to pre-
pare their Case 002/01 appeal. See e.g., Holly Robertson, ‘Samphan’s Boycott Forces Tribunal’s
Adjournment,’ Cambodia Daily, 25 November 2014.
16 Managing Enormous Mass Crimes Indictments … 437
The ECCC is the first mass crimes court to proceed with consecutive trials
based on one indictment,4 but all mass crimes courts struggle to balance their obli-
gation to reach an expeditious verdict with the desire to establish a comprehensive,
coherent narrative of events. Slobodan Milošević’s death in the midst of trial on a
massive former Yugoslavia-wide indictment created an impetus toward narrower
indictments and shorter trials, making the ECCC’s severance experiment a poten-
tial model for international practice.
In severing the Case 002 indictment, the ECCC Trial Chamber noted that cases
of similar complexity at international courts have required as long as ten years to
reach judgment.5 Its aim was therefore ‘to limit the number of witnesses, experts
and civil parties called,’ enabling it ‘to issue a verdict following a shortened trial,
safeguarding the fundamental interest of victims in achieving meaningful and
timely justice, and the right of all Accused in Case 002 to an expeditious trial.’6
Paradoxically, due to the severely truncated charges in Case 002/01, the relevance
of the first trial for many victims was reduced, as the case no longer included
many types of harm suffered by Cambodians during the Democratic Kampuchea
regime. Moreover, the first mini-trial did not proceed as swiftly as hoped, due in
part to the many novel procedural questions raised, but compounded by the Trial
Chamber’s failure to assess potential novelties and discuss them with the parties in
advance or to establish an overall plan for the proceedings. Instead the Chamber
managed the case on an ad hoc basis: It finalized the scope of charges in the first
trial a year after the start of evidentiary proceedings,7 it first addressed parties’
practical concerns about the relationship between the trials only after the end of
4See e.g. Co-Prosecutors’ Response to Khieu Samphan’s Request for Stay of Proceedings or
Disqualification of Judges, Nuon Chea and others (002/19-09-2007/ECCC-E314/3), Trial

Chamber, 4 September 2014, § 17, stating: ‘Never before have accused persons at an interna-
tional or internationalized tribunal been subject to a second trial based on separate factual allega-
tions that are part of the same charging document.’
5ECCC Press Release, ‘Severance of Proceedings Ordered in Case 002,’ 22 September 2011,
available at http://www.eccc.gov.kh/en/articles/severance-proceedings-ordered-case-002 (visited

15 June 2015).
ECCC-E124), Trial Chamber, 22 September 2011, § 8.

7See generally Memorandum from Trial Chamber President Nil Nonn, Notification of Decision
on Co-Prosecutors’ Request to include Additional Crime Sites within the Scope of Trial in Case
002/01 and Deadline for Submission of Applicable Law Portion of Closing Briefs, Nuon Chea
and others (002/19-09-2007/ECCC-E163/5), Trial Chamber President, 8 October 2012. See also
Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chamber’s Decision Concerning
the Scope of Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E163/5/1/13),
Supreme Court Chamber, 8 February 2013 (hereafter SCC First Severance Decision), § 17, call-
ing the Trial Chamber’s series of scope decisions ‘a year-long decision-making process’ during
which ‘the Trial Chamber consistently kept the limits of the scope of Case 002/01 uncertain and
open to change, without defining any criteria that could influence a change.’
438 A. Heindel
Case 002/01 hearings, and it has yet to explain the impact of severance on charges
in the indictment that will not be adjudicated in either of the first two trials.8
Preparations for the start of Case 002/02 revived outstanding questions about the
severance procedure, including the limits on the Trial Chamber’s discretion to sever,
the Chamber’s authority to cut or dismiss charges from the indictment, its suitability to
judge a second trial that is based largely on the same facts as the first trial, and the pro-
cedural and evidentiary relationship between the first trial and subsequent proceedings.
16.2 Limits on Discretion to Sever
The Trial Chamber severed the Case 002 indictment pursuant to ECCC Internal
Rule 89ter, which provides:
When the interest of justice so requires, the Trial Chamber may at any stage order the
separation of proceedings in relation to one or several accused and concerning part or the
entirety of the charges contained in an Indictment. The cases as separated shall be tried
and adjudicated in such order as the Trial Chamber deems appropriate.
16.2.1 ‘Interests of Justice’
In international proceedings, decisions to sever are considered the exception, with

efficiency and fairness concerns contributing to the general principle that ‘charges
concerning similar events against several accused should preferably be tried in
joint proceedings.’9 Consistent with this approach, Internal Rule 89ter allows sev-
erance only when it is in the ‘interests of justice,’ which according to the ECCC
Supreme Court Chamber (SCC) denotes ‘a condition where accused and/or
charges tried separately better serve the objectives of the criminal proceedings and
principles on which they are premised.’10 This finding must be made on a case-by-
case basis by balancing ‘all parties’ respective interests’ against ‘all relevant fac-
tors[.]’11 Relevant considerations include ‘the potential prejudice to the accused’s
rights, the efficiency and manageability of the proceedings, the desire to avoid
inconsistencies between separate trials, and the potential burden on witnesses.’12
8See e.g. SCC First Severance Decision, supra note 7, § 47, saying that ‘the Trial Chamber’s con-
tinued failure to create a tangible plan for the future of remaining trials in Case 002 has resulted
in confusion for the parties and has effectively ‘buried’ the remaining charges in the Indictment.’
9Ibid. § 33.
10Ibid. § 35.
11Ibid. §§ 35, 50 (emphasis in original).
12Decision on Immediate Appeals Against Trial Chamber’s Second Decision on Severance, Nuon
Chea and others (002/19-09-2007-ECCC-E284/4/8), Supreme Court Chamber, 25 November

2013 (hereafter SCC Second Severance Decision), § 38, examining jurisprudence of the
International Criminal Tribunals of Rwanda and the former Yugoslavia.
Potential prejudice to the accused is considered largely in relation to the right to

be tried without undue delay, including with regard to charges to be the subject of
future trials, but also with regard to the accused’s ‘ability to participate in the prep-
aration of his defense for the second trial, as it would require the accused’s simul-
taneous involvement in two cases.’13 For example, when similarly considering the
appropriateness of splitting an indictment into consecutive trials, the Mladić trial
chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY)
found ‘that participating in the pre-trial preparations of one case while simultane-
ously participating in the judgment or appeal stage of the first trial could unfairly
overburden the Accused and limit his ability to participate effectively in either.’14
Trial manageability factors include the potential for duplication of evidence
including witness testimony, the ‘overall length of proceedings[,]’ the potential
need for re-litigation of procedural issues, and managerial and bias concerns if the
same panel hears both cases.15 These considerations will be discussed below.
16.2.2 Authority to Cut or Dismiss Charges
Unlike predominantly common law-based courts such as the ICTY, at which the
prosecution may request that charges be dropped from an indictment,16 the ECCC
is rooted in Cambodia’s French-influenced civil law tradition, where the focus is
13Ibid., citing Decision on Consolidated Prosecution Motion to Sever the Indictment, to Conduct
Separate Trials and to Amend the Indictment, Mladić (IT-09-92-PT), Trial Chamber, 13 October
2011, § 31.
14Mladić decision, supra note 13, § 31. The ECCC Trial Chamber dismissed this concern, noting
that the Mladić trial chamber also expressed concern that the accused would need to coordinate
between two different defense teams, whereas at the ECCC the accused are represented by the
same lawyers in both cases. See Decision on Additional Severance of Case 002, supra note 3, §
21. However, this was just one factor in the Mladić chamber’s reasoning; moreover, it is arguable
that an accused’s ability to defend himself is burdened to a greater extent when his legal team
is required to split its time between two trial proceedings. See Decision on Khieu Samphan’s
Immediate Appeal Against the Trial Chamber’s Decision on Additional Severance of Case 002
and Scope of Case 002/02, Nuon Chea and others (002/19-09-2007-ECCC-E301/9/1/1/3),
Supreme Court Chamber, 29 July 2014 (hereafter SCC Third Severance Decision), § 50 n.106,
noting that the ‘concerns pinpointed by the Trial Chamber were not focal points in [the ICTY’s]
overall consideration that severed trials would be less expeditious than a single trial.’ Because
the Khieu Samphan team boycotted Case 002/02 hearings until it filed its Case 002/01 appellate
brief, the Trial Chamber was eventually forced to postpone the start of Case 002/02 evidentiary
hearings. See ECCC Press Release, ‘Hearings in Case 002/02 Adjourned Until January 2015,’ 24
November 2014, available at http://www.eccc.gov.kh/sites/default/files/media/ECCC%20PR%20
24%20Nov%202014%20Eng.pdf (visited 15 June 2015).
15SCC Second Severance Decision, supra note 12, § 39.
16Rule 73bis(D) ICTY RPE provides in part: ‘After having heard the Prosecutor, the Trial
Chamber, in the interest of a fair and expeditious trial, may invite the Prosecutor to reduce the
number of counts charged in the indictment […].’
440 A. Heindel
on finding the ‘material truth.’ In consequence, once charges are laid they arguably
may not be discarded.17 As explained by the Trial Chamber:
Under the ECCC legal framework, the indictment is the result of a judicial decision and is
final when the Trial Chamber is seised with it. The Co-Prosecutors have no power to with-
draw any part of the Indictment and nor can the Trial Chamber use a severance order to
reduce or expand the crimes charged. The only purpose of severance at the trial stage is to
modify the way in which all charges in the Indictment are to be adjudicated. Charges
which would normally be adjudicated in a single trial are separated, to be heard in two or
more trials, but otherwise remain unchanged. Legally, severance is exclusively a trial
management tool and in the absence of a mechanism for the withdrawal of any charges in
the Indictment, all charges will be adjudicated unless an Accused becomes unfit to stand
trial or proceedings are terminated by his death.18
The Trial Chamber therefore consistently maintained that in severing Case 002
it had not amended the indictment, but merely ruled on the sequence in which it
would hear the allegations. However the SCC, noting the Chamber’s continuing
equivocation regarding when and how additional trials might be held in light of the
age and frail health of the accused, found that severance had resulted ‘in a de facto
stay of proceedings in relation to all charges placed outside the scope of Case
002/01’ that was likely to be permanent, with ‘the effect of terminating the pro-
ceedings’ in relation to those charges.19 The Trial Chamber has since determined
the additional charges to be tried in Case 002/02, but has not yet addressed the sta-
tus of the remaining crime sites in the indictment.20
Persistent uncertainty about whether a civil law-based indictment for mass
crimes could only be sliced into sections for the purpose of holding multiple pro-
ceedings, or whether some charges could be cut, impacted the accuseds’ right to
know which charges they faced. The Internal Rules were not amended to address
the problem until 2015. No guidance was provided by Cambodia’s criminal proce-
dures,21 with which the Court is mandated to act in accordance and on which its
17See Decision on Immediate Appeal Against the Trial Chamber’s Order to Unconditionally
Release the Accused Ieng Thirith, Nuon Chea and others (002/19/09-2007/ECCC-E138/1/10/
1/5/7), Supreme Court Chamber, 14 December 2012, § 37, stating: ‘Traditionally, most civil law
jurisdictions have adopted the principle of legalism (or, otherwise, mandatory prosecution), pursu-
ant to which the prosecution has no discretion to discontinue or ask for the discontinuation of a
criminal action once it has been initiated and the court, which has sole authority to terminate pro-
ceedings, can only do it for a reason specifically expressed in the law.’ (citations omitted).
18Decision on Severance of Case 002 Following Supreme Court Chamber Decision of 8 February
2013, Nuon Chea and others (002/19-09-2007/ECCC-E284), Trial Chamber, 26 April 2013
(hereafter TC Second Severance Decision), § 98.
20Decision on Additional Severance of Case 002, supra note 3, § 45. Due to the 2015 rule change
discussed infra note 27, it seems likely that the remaining charges will be dropped.
21Cambodian procedures include no mechanisms for reducing confirmed charges or severing an
indictment.
Internal Rules are based.22 However, ‘[w]here Cambodian law does not deal with
a particular matter’ the Court may look to international practice.23 The SCC sug-
gested that international practice may offer a ‘comparable and relevant’ approach
for balancing the interests of justice in reducing the indictment,24 and may be an
appropriate trial management tool in all international criminal law proceedings,
which involve selective prosecution ‘with a focus on policies that balance the
goals of criminal justice against limited resources.’25 Although the SCC repeatedly
urged a prompt decision on the disposal of all outstanding charges,26 the Trial
Chamber interpreted its guidance narrowly to mean that it need not address the
issue unless requested by the prosecution.27
16.2.3 Obligation to Consult with the Parties
In accordance with their predominantly adversarial approach, other mass crimes

courts mandate the prosecution to play the primary role in determining which
charges to cut when reducing the scope of large indictments. At the ECCC, none
22Agreement between the United Nations and the Royal Government of Cambodia Concerning
Kampuchea (June 6, 2003), Article 12(1), providing in part: ‘The procedure shall be in accord-
ance with Cambodian law.’
23Ibid., providing in part: ‘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 stand-
ards, guidance may also be sought in procedural rules established at the international level.’
24SCC Second Severance Decision, supra note 12, §§ 63–64.
25Ibid. §§ 61–62.
26See e.g. SCC First Severance Decision, supra note 7, § 50, stating: ‘It is necessary that the
Trial Chamber determine […] whether the gist of such severance is in judicial manageability, in
which case there is necessity for a tangible plan for the adjudication of the entirety of the charges
in the Indictment, and not merely a portion thereof’ or else state ‘clearly’ that due to the declining
health of the accused ‘justice is better served by concluding with a judgment’ on a smaller num-
ber of charges; SCC Second Severance Decision, supra note 12, § 62, stating: ‘In any event, it is
the duty of the Trial Chamber to dispose of matters pending before it so that the proceedings into
a criminal charge are decided on the merits or dismissed’; SCC Third Severance Decision, supra
note 14, §§ 88, 89, finding a continuing lack of legal certainty regarding the status of the remain-
ing charges due to the Trial Chamber’s ‘repeated indecision’ and reiterating that ‘no part of the
proceedings may be left ‘in limbo.’
27See Decision on Additional Severance of Case 002, supra note 3, § 45, finding that ‘as the Trial
Chamber has not been seised of a request by the Co-Prosecutors to withdraw charges from the
Closing Order, the Trial Chamber need not address this issue at the current stage of proceedings.’
(citation omitted). In January 2015, the Internal Rules were amended to allow the Trial Chamber
‘to reduce the scope of the trial by excluding certain facts set out in the indictment, as long as the
remaining facts subject to trial are representative of the scope of an indictment.’ ECCC Press Release,
‘11th Plenary Session Concludes,’ 16 January 2015, available at http://www.eccc.gov.kh/sites/
default/files/media/ECCC%20PR%2016%20Jan%202015%20Eng.pdf (visited 15 June 2015). The
Co-Investigating judges were provided equivalent authority to reduce the scope of their investigation.
442 A. Heindel
of the parties’ lawyers were asked for their views despite their many years of mass
crimes case experience. Immediately after the severance order was issued, the
prosecution requested reconsideration of its substance so that the Trial Chamber
could hear from the parties—‘particularly from the Co-Prosecutors, whose legal
duty to prove the case is materially affected by the Order.’28 It argued that
‘[a] Trial Chamber’s failure to hear a party is inconsistent with the requirements of
a fair trial.’29 The Trial Chamber disagreed, ruling that consultation was unneces-
sary in an inquisitorial legal system where indictments are judicially controlled.
Moreover, it said that a consultative procedure would have led to unacceptable
delay in the start of trial considering the age of the accused.30 Indeed, although the
Trial Chamber received notice that the civil parties were also filing a request for
reconsideration, it did not wait to read their submission before rejecting it together
with the prosecution’s.31 Underlying the Trial Chamber’s reluctance to consult
with the parties was its view that at the ECCC severance is solely ‘a discretionary
trial management competence’32 without overarching legal implications for the
parties.
When the matter finally came before the SCC, it agreed that the Court’s Rules
give the Trial Chamber broad discretion both to decide when severance is neces-
sary and also to determine the order in which separated cases should be tried—but
not an unfettered right to determine the form of severance. In its view, to find oth-
erwise would ignore the adversarial features of ECCC proceedings, including ‘the
Co-Prosecutors’ crucial role and responsibility in creating ECCC indictments and
proving the charges therein.’33 Due to the ‘need to respect the right to be heard in
criminal proceedings[,]’ the SCC disagreed that even in a ‘strictly inquisitorial sys-
tem’ it would be ‘inherently’ unnecessary to consult with the parties.34 Moreover,
judicial discretion is ‘tempered particularly in cases as large and complex as Case
002, where the mode of severance inevitably has greater and more significant
impact on all interested parties.’35 The Trial Chamber was ordered to reconsider
28Co-Prosecutors’ Request for Reconsideration of ‘Severance Order Pursuant to Internal Rule
89ter,’ Nuon Chea and others (002/19-09-2007/ECCC-E124/2), Trial Chamber, 3 October 2011,
§ 2. See also ibid. § 15, expanding on this argument.
29Ibid. § 14.
Severance Order (E124/2) and Related Motions and Annexes, Nuon Chea and others
(002/19-09-2007/ECCC-E124/7), 18 October 2011, § 4.
31See Urgent Request on the Scope of Trial One and the Need for a Reasoned Decision
Following the Civil Parties Request for Reconsideration of the Severance Order, Nuon Chea and
others (002/19-09-2007/ECCC-E124/10), Trial Chamber, 17 November 2011, §§ 4–5.
32Memorandum from Trial Chamber President Nil Nonn, Notice of Trial Chamber’s Disposition
of Remaining Pre-Trial Motions (E20, E132, E134, E135, E124/8, E124/9, E124/10, E136
and E139) and Further Guidance to the Civil Party Lead Co-Lawyers, Nuon Chea and others
(002-02/19-09-2007/ECCC-E145), Trial Chamber President, 29 November 2011, at 1.
33SCC First Severance Decision, supra note 7, § 42 (footnote omitted).
34Ibid. § 40.
35Ibid.
the terms of severance from scratch after consulting the parties but, focusing on
the seventeen months already expended hearing evidence tailored to the original
severance decision and the need to reach an expeditious end to proceedings, it
rejected their requests36 and reinstated the parameters of its original decision.37
16.2.4 Obligation to Include Charges Representative

of the Indictment
The first Case 002 trial—Case 002/01—addressed ‘foundational’ topics such as

the policies and administrative, communications, and military structure of the
Khmer Rouge regime; and the roles and responsibilities of the co-accused before
and after the regime took power. Of the five country-wide criminal policies for
which the former senior Khmer Rouge leaders are accused of responsibility, only
two were directly, if incompletely, at issue: crimes related to forced transfers of the
population,38 and (added nine months into trial) the Tuol Po Chrey site where sol-
diers and officials of the defeated Khmer Republic regime were targeted for execu-
tion shortly after the Phnom Penh evacuation.39 Charges related to worksites,
cooperatives, security centers, a third population movement, and other execution
sites—as well as the crimes of forced marriage and genocide—were left for uncer-
tain future trials.
The prosecution agreed that the indictment should be severed but, as discussed
above, immediately challenged the form in which it was split, expressing skepti-
cism that more than one trial of the octogenarian defendants could be held, and
therefore seeking the inclusion of a more representative selection of charges:
‘[T]he charges selected for the first and likely only trial of the Accused would not
be representative of their alleged criminal conduct, in contrast to international
practice; it would not promote an accurate historical record; and would diminish
the legacy of ECCC proceedings in advancing national reconciliation.’40 Rather
36The prosecutors sought to add the S-21 security center, which had been the sole subject of Case
001, and all defense teams opposed re-severance. Among its arguments, the Nuon Chea team said
that as a judicially confirmed document, ‘[A]ny part of the Closing Order which is not heard at
trial will survive as the final adjudication of Nuon Chea’s criminal responsibility for the events
during Democratic Kampuchea. This trial is Nuon Chea’s only opportunity to present his defence
to the allegations in the Closing Order[.]’ Transcript of Trial Proceedings (Public), Nuon Chea
and others (002/19-09-2007/ECCC-E1/172.1), Trial Chamber, 20 February 2013, at 3–4.
37See TC Second Severance Decision, supra note 18, § 4.
38Severance Order, supra note 6, §§ 1, 5, 7, addressing the forced transfer of the population of
Phnom Penh beginning on April 17, 1975, and the subsequent forced transfer of hundreds of
thousands of Cambodians to the north of the country between late 1975 and 1977.
39See Notification of Decision on Co-Prosecutors’ Request to include Additional Crime Sites,
supra note 7, § 3.
40Co-Prosecutors’ Request for Reconsideration, supra note 28, § 3.
444 A. Heindel
than sever the indictment into policy segments, the prosecutors argued that,
according to international standards, the selection of charges must be ‘reasonably
representative of the crimes charged’ taking into account certain factors including
their ‘classification and nature,’ the ‘places where they are alleged to have been
committed,’ their ‘scale’ and ‘the victims of the crimes.’41 They therefore initially
argued that the first trial should include not only the forced evacuation of Phnom
Penh but also crimes at a few security centers, work sites, and cooperatives.42
The Trial Chamber ruled that, ‘as no allegations or charges in the Indictment
are discontinued in consequence of the Severance Order, there is no need for the
first trial to be reasonably representative of the totality of the charge in the
Indictment.’43 Nevertheless, it did allow for the possibility of adding additional
charges at a later date.44 The prosecutors filed a truncated request to add three
more crime sites.45 Nine months later, the Trial Chamber agreed to add only one:
the Tuol Po Chrey execution site. The prosecutors appealed that decision, arguing
that the Chamber’s refusal to add more crime sites, if uncorrected, would ‘result in
a trial and a legacy that fails to adequately represent the enormity and gravity of
the crimes committed during the period of Democratic Kampuchea.’46
When the SCC overturned the Trial Chamber severance order fourteen months
into trial, it upbraided the Trial Chamber for, among other errors, failing to con-
sider the representativeness of the charges. The SCC rejected the Trial Chamber’s
finding that it was unnecessary for Case 002/01 to be ‘reasonably representative of
the totality of the charges in the Indictment’ because no charges had been dropped.
This reasoning was ‘irreconcilable’ with the Trial Chamber’s justification for sev-
ering Case 002: its doubts about the defendants’ mental and physical capacity to
participate in a long trial. 47 According to the SCC, the ‘Trial Chamber’s doubts
about the Co-Accused’s abilities to participate in a lengthy trial militates in favour
of exploring at the earliest instance, possible ways of shaping the scope of Case
002/01 that could maximize representation of the totality of the charges against the
Co-Accused, and thereby optimize the meaningfulness of the justice to be ren-
dered, in the shortest amount of time.’48
Reviewing ICTY jurisprudence, the SCC found that, when reducing charges
with the aim of balancing a ‘fair and expeditious trial’ with a trial that is
41Ibid. § 19.
42Ibid. § 36.
43Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, § 9.
44Severance Order, supra note 6, §§ 2, 12.
45Co-Prosecutors’ Request to Include Additional Crime Sites within the Scope of Trial in Case 002/1,
Nuon Chea and others (002/19-09-2007/ECCC-E163.1), Trial Chamber, 27 January 2012, § 4.

46Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case 002/01 with
Annex I and Confidential Annex II, Nuon Chea and others (002/19-09-2007/ECCC-E163/5/1/1),
Supreme Court Chamber, 7 November 2012, § 2.
47SCC First Severance Decision, supra note 7, § 43.
48Ibid. (emphasis in original).
‘reasonably representative’ of an indictment, the following factors may be consid-

ered: (i) the crimes charged in the indictment, (ii) the classification and nature of
the crimes, (iii) the places where the crimes are alleged to have been committed,
(iv) the scale of the crimes, (v) the victims of the crimes charged, (vi) the time
period of the crimes charged, and (vii) the fundamental nature of the case.49 It did
not consider this standard to have been met by the subject matter of Case 002/01,
but due to the Trial Chambers’ unwillingness to adjudicate additional charges,
rather than ordering an end-of-trial expansion that would delay the conclusion of
the first case, it advised ‘that those charges that should have been included within
the scope of Case 002/01 will instead form the limited scope of Case 002/02, so
that the combination of Cases 002/01 and 002/02 will be reasonably representative
of the Indictment.’50
The Trial Chamber’s subsequent decision on the scope of Case 002/02 includes
the charges mandated by the SCC and some additional charges requested by the
parties,51 making the severed cases together reasonably representative of the
indictment. With the prosecution optimistically projecting that Case 002/02 can
reach judgment after two to three years if there are no delays due to the health of
the accused, the ‘meaningful and timely justice’ sought through severance will
take a minimum of five, but likely six or more years to attain when ‘representative-
ness’ is included as a necessary criterion.52
16.3 Legal and Procedural Challenges of Severance
16.3.1 Restricting the Scope of Evidence Presented

in the First Trial
In a press release announcing the severance of Case 002, the Trial Chamber specu-
lated: ‘The advantage of separation of proceedings into segments is that each trial
will take an abbreviated time for the Chamber to complete.’53 The Co-Prosecutors
disagreed that the severance order would promote efficiency, and proceedings have
49SCC Second Severance Decision, supra note 12, § 64 (citations omitted).

50Ibid. § 70. See also ibid. § 68, calling the Trial Chamber ‘rigid’ in its disinclination to modify
the scope of trial, indicating its lack of preparedness to adjudicate any additional charges.
51See generally Decision on Additional Severance of Case 002, supra note 3.
52The Supreme Court Chamber has indicated that ‘meaningful justice’ requires a verdict ‘on at
least those remaining charges which will render the combination of Cases 002/01 and 002/02
reasonably representative of the Indictment.’ SCC Third Severance Decision, supra note 14, § 55.
Notably, shortly after the start of the second trial Case 002/02 hearings were already delayed two
weeks due to the hospitalization of Khieu Samphan for breathing difficulties. See e.g. George
Wright, ‘Khmer Rouge Tribunal Hearings Postponed Again,’ Cambodia Daily, 14 January 2015.
53ECCC Severance Press Release, supra note 5.
446 A. Heindel
not moved swiftly.54 The trial hearings in Case 002/01 on only a small portion of
the indictment lasted two years, and the second trial began over a year later, after
the Trial Chamber drafted the first judgment and the parties filed their appeals.55
One reason56 for the relatively slow pace of the proceedings in Case 002/01 was
the difficulty in establishing appropriate limits on which evidence from the full
indictment could be presented at trial.57
Due to the close connection between the charges and factual allegations in the
indictment, witness testimony frequently included evidence going beyond the
parameters of the Case 002/01 charges. Consistent with the limited scope of the
first trial, the Trial Chamber ruled initially that the testimony of ‘all’ witnesses,
54Seventeen months into proceedings, the Trial Chamber estimated that over the course of the
Case 002/01 trial it had heard testimony ‘on an approximate average of 7.3 courtroom days per
month.’ TC Second Severance Decision, supra note 18, § 140, attributing the slow pace to ‘the
health of the Accused, witness availability, and the appeal process.’
55The Trial Chamber emphasized that it and its staff needed to focus exclusively on delivering a
judgment expeditiously, and therefore would begin hearing Case 002/02 after issuing the judg-
ment. See Memorandum from Trial Chamber President Nil Nonn, Scheduling of and Agenda
for Trial Management Meeting in Case 002/02 (11–13 December 2013), Nuon Chea and oth-
ers (002-02/19-09-2007/ECCC-E301/3), Trial Chamber President, 5 December 2013, at 3;
Memorandum from Trial Chamber President Nil Nonn, President’s Memorandum on the Proposal
to Appoint a Second Panel of the Trial Chamber to Try the Remaining Charges in Case 002, Nuon
Chea and others (002-02/19-09-2007/ECCC-E301/4), Trial Chamber President, 20 December
2013, § 9. Cf. Mladić decision, supra note 13, § 35, stating: ‘if the writing of the judgment in the
first case were taking place during the pre-trial period or start of the second case, this could nega-
tively affect the pace of the second case.’ The SCC, noting ICTY appeals chamber concerns about
potential delay due to the intervening time required to write a judgment, has said that the fact
that ‘a series of severed trials would take longer to adjudicate than a single joint trial’ is not only
supported by international jurisprudence but is ‘common sense.’ SCC Third Severance Decision,
supra note 14, § 51. As discussed supra note 14, the Trial Chamber only agreed to postpone evi-
dentiary hearings until after appeal briefs were filed because the Khieu Samphan team boycotted
proceedings, saying it likewise needed to devote its efforts exclusively to that task.
56Additional reasons included frequent breaks and a lack of trial management. For example, near
the end of trial, the prosecutors said that ‘the most significant impediment [to expeditious pro-
ceedings] had been the four-day trial schedule […] and the frequent judicial recesses scheduled
by the Trial Chamber.’ Co-Prosecutors’ Immediate Appeal of Second Decision on Severance
of Case 002, Nuon Chea et al. (002/19-09-2007/ECCC-E284/2/1), Supreme Court Chamber,
10 May 2013, § 70. They further complained about continuing uncertainty due to the ‘Trial
Chamber […] managing and planning the trial on a week-to-week basis’:
[I]t is now three months after this Chamber’s [final] severance decision and the parties
still have not received any schedule or plan informing them of when the Trial Chamber
plans to complete witness testimony, the identity of the remaining witnesses who will tes-
tify, and when closing arguments will be scheduled and final written submissions due.
See ibid. § 75.
57See e.g., SCC Third Severance Decision, supra note 14, § 52, noting ‘the real delays’ resulting
from ‘procedural battles’ over the innovations Trial Chamber said would reduce delay, including
having evidence in Case 002/01 serve as a ‘foundation’ for subsequent trials.
including ordinary witnesses, experts and civil parties, should be ‘limited to that
relevant to a determination of the facts at issue in Case 002/01.’58 However, in
practice some witnesses—in particular elderly persons and experts—were allowed
to testify on a broader scope of topics.59 Moreover, civil party lawyers immedi-
ately pointed out that many victims had been admitted as parties ‘on the basis of
their suffering multiple crimes’ and it would be difficult to strictly confine their
testimony to exclude all the crimes they suffered.’60 In consequence, the Chamber
heard some evidence as if the trial had never been split, while the defense only
challenged testimony related to the enumerated topics directly at issue. Facing a
similar problem in the Mladić case, an ICTY Trial Chamber rejected a prosecution
request to sever an indictment into two trials in part due to potential inefficiencies,
including the likelihood of the defense presenting evidence in the first trial ‘on
events to be taken up in the second trial,’ as ‘[t]his would seem to frustrate the
point of having two smaller trials and could result in the Defense case in the first
trial alone being closer in size to that of the original combined trial[.]’61
The evidentiary boundary between Case 002 proceedings was further blurred
by opacity as to how Case 002/01 could provide a ‘foundation’ for future cases on
the roles of the accused in the establishment of all criminal policies alleged in the
indictment, yet skirt pre-judgment of their culpability on allegations reserved for
future trials. Before hearings began, the Chamber said that ‘during the early trial
segments [it] will give consideration to the roles and responsibilities of the
Accused in relation to all policies relevant to the entire Indictment, but will give
detailed factual consideration in the first trial mainly to the first two phases of pop-
ulation transfers.62 In the prosecutors’ view, this statement meant that all of ‘the
five policies and the Accuseds’ participation in them are material issues in this first
trial which require proof.’63 The Trial Chamber clarified:
What is … envisaged is presentation in general terms of the five policies, although the
material issue for examination in the first trial is limited to the forced movement of the
58Notice of Trial Chamber’s Disposition of Remaining Pre-Trial Motions, supra note 32 at 2.

59Decision on Assignment of Experts, Nuon Chea and others (002/19-09-2007/ECCC-E215),
Trial Chamber, 5 July 2012, § 4, recalling its prior ruling that experts ‘may be questioned on all
matters within their knowledge or expertise relevant to the entirety of the Closing Order in Case
002’; Memorandum from Trial Chamber President Nil Nonn, Order of Witnesses for Current
Segment of Case 002/01, Nuon Chea and others (002-02/19-09-2007/ECCC-E194), Trial Chamber
President, 11 May 2012, agreeing to a prosecution request to hear elderly witnesses on the full
scope of Case 002. See also Memorandum from Trial Chamber President Nil Nonn, Advance
Notice of Assignment of Four Witnesses During First Trial Segment (5–16 December 2011).
60Lead Co-Lawyers and Civil Party Lawyers Request for Reconsideration of the Terms of the
Severance Order E124, Nuon Chea and others (002/19-09-2007/ECCC-E124/8), Trial Chamber,
18 October 2011, §§ 12–13.
61Mladić decision, supra note 13, § 34.
62Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, § 11 (emphasis
added); Co-Prosecutors’ Request for Clarification of the Scope of the First Trial, Nuon Chea and
others (002/19-09-2007/ECCC-E124/9), Trial Chamber, 4 November 2011, § 4.
63Co-Prosecutors’ Request for Clarification, supra note 62, § 9.
448 A. Heindel
population (phases one and two). It follows that there will be no examination of the imple-
mentation of policies other than those pertaining to the forced movement of the popula-
tion (phases one and two).64
This meant that the evidence relevant to the existence and evolution of policies
as a foundation for future proceedings was allowed, but evidence showing the
implementation of those policies on the ground was not.65 The distinction was
never clear in practice, and toward the end of trial it disappeared when both the
prosecution and the civil parties argued that, according to the jurisprudence of
international tribunals, the existence and the evolution of a policy may be proved
by reports from the ground—including testimony on facts showing a policy’s
widespread implementation.66 However accurate a description of international
practice,67 it did not occur within a similar split-indictment context. The Khieu
Samphan team argued in part:
[W]e are, in a very subtle manner, sliding towards another case. … We have before us
today, in very concrete terms, a situation in which the Co Prosecutors and the Civil Party
Lead Co Lawyers are telling you that we cannot talk about the three other policies that do
not concern Case 002/1 without talking about implementation on the ground. What does
that mean legally speaking? It means that you are authorizing, in one way or the other, the
presentation of the evidence, in this case, on policies that are not concerned by Case
002/1[.] … If there is a slip or a slide towards other policies, we do not have a clear fair
trial, and the rights of the Accused must be respected, they must know the case against
them, and they must be able to respond.68
64Memorandum from Susan Lamb, Trial Chamber Senior Legal Officer to All Parties
Case 002, Response to Issues Raised by Parties in Advance of Trial and Scheduling of
Informal Meeting with Senior Legal Officer on 18 November 2011, Nuon Chea and others
(002-02/19-09-2007/ECCC-E141), 17 November 2011, at 2.
65See e.g. Transcript of Trial Proceedings (Public), Nuon Chea and others
(002/19-09-2007/ECCC-E1/211.1), Trial Chamber, 24 June 2013, at 91, quoting Judge
Cartwright: ‘The Chamber has always indicated that the—that evidence could be led as to
the existence of all five policies, but that any evidence relating to the implementation of those
would be limited only to the policy, the alleged policy of forced evacuation’; Transcript of Trial
Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/212.1), Trial Chamber,
25 June 2013, at 10, quoting Judge Lavergne: ‘It is indeed implementation on the ground—or in
the field that should not be part of the presentation of key documents as part of this trial.’
66See e.g. Transcript of Trial Proceedings (Public), Nuon Chea and others
(002/19-09-2007/ECCC-E1/213.1), Trial Chamber, 26 June 2013, at 41–42, quoting the prose-
cution: ‘There is total interaction between the policy itself and its application. This application
helps with the development of the policy’; ibid., at 40, quoting the international lead co-lawyer:
‘It is obvious that the statements of civil parties contain necessarily both matters regarding exist-
ence of the policies and implementation.’
67See e.g. Judgment, Kunarac and others (IT-96-23& IT-96-23/1-A), Appeals Chamber, 12 June
2002, § 98, stating: ‘It may be useful in establishing that the attack was directed against a civilian
population and that it was widespread or systematic (especially the latter) to show that there was
in fact a policy or plan, but it may be possible to prove these things by reference to other matters.’
68Transcript of Trial Proceedings 26 June 2013, supra note 66, at 44–46.
The Trial Chamber dismissed the objection:

The Chamber acknowledges that documents which parties may wish to emphasize during
the course on [sic] this hearing … may contain information that tends to point both to the
existence or development of a policy and to its implementation. … It is necessary, how-
ever, to emphasize that Case 002/01 includes … policies only insofar as they exist or have
been developed and that the implementation of policies other than the evacuation of the
cities is irrelevant to that case.69
In the view of the Nuon Chea defense team, by admitting witness statements
discussing the implementation of policies falling outside of the scope of Case
002/01, even for limited purposes, the Chamber had already ‘conceded their rele-
vance.’70 The team agreed with the prosecution that ‘there is total interaction
between the [existence of a] policy itself and its application,’ and said this showed
that the Trial Chamber’s attempt to separate discussion of the existence of the five
criminal policies from discussion of their implementation had failed in practice,
making the current form of severance unworkable:71
If ‘facts on the ground, lower down the line,’ are part of the offer of proof in relation to the
existence of policies outside the scope of Case 002/01, then the Chamber is either being
urged to make those findings on the basis of an incomplete record or there was never any
significance in severance to begin with. Neither the Co-Prosecutors nor the Trial Chamber
have ever succeeded in explaining which ‘facts on the ground’ are relevant to the ‘exist-
ence’ of JCE policies and hence within the scope of Case 002/01, which are not, and
why.72
The team argued that the Trial Chamber could have either allowed evidence of
policies falling outside of Case 002/01 ‘subject to adversarial argument,’ or it
could have decided that evidence of such policies was entirely inadmissible. ‘The
Chamber cannot, however, decide to call no witnesses, prohibit the parties from
examining any witness who is called in relation to “facts on the ground”, and then
rely on the evidence which has been put before it, haphazardly and for no clear
purpose, to make sweeping conclusions about a supposed “policy” set by the CPK’
without violating the right of the accused to confront the evidence against them.73
As one example, the team highlighted a finding in the Case 002/01 Judgment that
there was a CPK policy to regulate marriage based on ‘some evidence of arranged
and involuntary marriages’—with the ‘nature and implementation’ of the policy to
69Ibid. at 50.
70Addendum to Reply to OCP Response to Nuon Chea’s Immediate Appeal Against Trial Chamber’s
Second Decision on Severance, Nuon Chea and others (002/19-09-2007/ECCC-E284/4/5), Supreme
Court Chamber, 3 July 2013, § 15.
71Ibid. §§ 13, 15.
72Ibid. § 17.
73Ibid. §§ 19–21. See also Immediate Appeal Against Trial Chamber’s Second Decision on
Severance and Response to Co-Prosecutors’ Second Severance Appeal, Nuon Chea and others
(002/19-09-2007/ECCC-E284/4/1), Supreme Court Chamber, 27 May 2013, § 18, arguing that
efforts to fashion limited exceptions to bring in evidence of conduct and policies falling outside
the subject matter of Case 002/01 ‘caused a continuing violation of Nuon Chea’s ability to con-
front the witnesses against him.’
450 A. Heindel
be determined in Case 002/02.74 The Nuon Chea team argued that it was
inappropriate to make this finding solely ‘on the basis of witness evidence that
their marriages were regulated’ ‘until after the relevant crime base evidence was
tested’ in Case 002/02.75
According to the team: ‘The experience of the Case 002/01 trial has demon-
strated that the allegations in the Closing Order are too closely related to permit
meaningful separation into distinct trials. The effort to do so in Case 002/01 has
caused prejudice to Nuon Chea’s right to a fair trial, and also rendered Case 002/01
unmanageable.’76 Support for the view that this form of severance is inherently
unmanageable when there are factually interconnected charges may be found in the
Trial Chamber’s subsequent acknowledgment that within Case 002/02 itself ‘no
clear lines can be drawn between the topics into which this trial will be divided.’77
16.3.2 Using Evidence and Findings from the First Trial

as a Foundation for Subsequent Trials
In Case 002/01, the Trial Chamber sought to conduct a thorough examination of

all ‘fundamental issues and allegations’ in order:
• ‘To provide a foundation for more detailed examination of the remaining
charges and factual allegations against the Accused in later trials,’ and
• ‘To ensure as far as possible that the issues examined in the first trial provide a
basis for the consideration of the mode of liability of joint criminal enterprise
by including all Accused[.]’78
From the beginning, parties voiced skepticism that this was legally possible.
74Case 002/01 Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber,
7 August 2014, § 130.
75Nuon Chea Application for Disqualification of Judges Nil Nonn, Ya Sokhan, Jean-Marc
Lavergne, and You Ottara, Nuon Chea and others (002/19-09-2007/ECCC-E314/6), Trial
Chamber, 29 September 2014 (hereafter Nuon Chea Application for Disqualification of Judges),
§ 81.
76Addendum to Reply to OCP Response to Nuon Chea’s Immediate Appeal, supra note 70, § 12.
77See Decision on Sequencing of Trial Proceedings in Case 002/02, Nuon Chea and others
(002/19-09-2007/ECCC-E315), Trial Chamber, 12 September 2014, § 7. As another possible

example, the prosecution has acknowledged that ‘the bulk’ of documents it sought to have admitted
for the entirety of Case 002 ‘have already been admitted.’ Transcript of Proceedings (Public), Nuon
Chea and others (002/19-09-2007/ECCC-E1/238.2), Trial Chamber, 12 December 2013, at 39.
78Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, § 10 (emphasis
added).
16.3.2.1 One Trial or Two?
As noted by the Khieu Samphan defense team, when proceedings are severed, they
are considered separate processes distinct from each other and separately judged.79
The Trial Chamber described the severance of Case 002 in similar terms when it
said the purpose of severance was to ‘separate the proceedings … into a number of
discrete cases that incorporate particular factual allegations and legal issues[,]’80
each followed by ‘a verdict in relation to these allegations, and appropriate sen-
tence in the event of conviction[.]’81
However, in anticipation of Case 002/02, the Trial Chamber ruled that the con-
sequence of severance was not in fact separate trials, but separate phases of one
trial: ‘The effect of the Trial Chamber’s severance of Case 002 was to separate the
charges which would normally be adjudicated in a single trial into two or more
manageable phases, not to create two separate and distinct trials.’82 No previous
international court had treated two trials with separate verdicts as part of the same
proceeding. The Nuon Chea team queried: ‘How can a trial judgment be issued if
a trial has not just ended? How could an appeal against a trial judgment be filed if
no trial has been completed?’83 The SCC agreed with the defense that the Trial
Chamber was attempting a conceptual shift and that—more than three years after
the first severance decision and despite the end of the first mini trial—‘it is unclear
what the Trial Chamber means by “severance”[.]’84 It also ruled, contrary to the
Trial Chamber, that severance ‘has the procedural consequence of creating sepa-
rate and distinct trials.’85 Although the Trial Chamber’s recharacterization of the
proceedings was overturned, its underlying purpose—to avoid procedural hurdles
and expedite the second trial by automatically incorporating evidence and findings
from Case 002/01—was not derailed.
79Conclusions de la Défense de M. Khieu Samphân sur la Nécessité d’Attendre un Judgement
Définitif dans le Procès 002/01 avant de Commencer le Procès 002/02, Nuon Chea and others
(002/19-09-2007/ECCC-E301/5/5), Trial Chamber, 5 February 2014, § 26.
80Severance Order, supra note 6, § 2.
81Ibid. § 6. Cf. SCC Second Severance Decision, supra note 12, § 4, defining the severance pro-
cess to include ‘discrete trials, each comprising finite portions of the Indictment, and each of
which would, in turn, conclude with a verdict and sentence in the event of a conviction[.]’
82Memorandum from Trial Chamber President Nil Nonn, Clarification Regarding the Use of
Evidence and the Procedure for Recall of Witnesses, Civil Parties and Experts from Case 002/01
in Case 002/02, Nuon Chea and others (002-02/19-09-2007/ECCC-E302/5), Trial Chamber
President, 7 February 2014, § 5.
83See Transcript of Proceedings (Public), Nuon Chea and others (002-02/19-09-2007/
ECCC-E1/239.1), Trial Chamber, 11 February 2014, at 21.

84SCC Third Severance Decision, supra note 14, § 72.
85Ibid. § 70.
452 A. Heindel
16.3.2.2 Admission of Evidence from the First Trial
Because the Trial Chamber viewed Case 002/02 as a ‘continuation’ of proceedings

from Case 002/01, it decided that the case file for both ‘remains the same for both
phases of trial and the evidence already put before the Chamber in Case 002/01
shall serve as a foundation for Case 002/02.’86 The SCC has since clarified that ‘no
trial evidence is common to … severed cases,’ and facts from one case may be intro-
duced into another only by ‘leading the evidence again, or through introducing it as
indirect evidence from the file[.]’ Nevertheless, it affirmed that all evidence from
Case 002/01 is automatically part of Case 002/02 after finding that—despite the
parties’ reliance on the Trial Chamber’s decision to sever before the start of trial—
‘Case 002 had not become definitely severed before the closure of evidentiary pro-
ceedings … and the evidence accrued until that point remained common to the
entirety of Case 002.’87 This ruling allows the Trial Chamber to apply the Internal
Rules’ evidentiary procedures to a large extent as if the Case 002/01 and 002/02
proceedings were a single trial. For example, when there are requests to recall wit-
nesses already heard in Case 002/01, the Chamber will ‘consider whether the par-
ties were prevented or did not have an opportunity to fully examine an individual
they intended to recall in court, because of the limited scope of Case 002/01.’88
The SCC has cautioned that as a fair trial matter, ‘[g]iven the shift in focus of
proof, the formal commonality of evidence adduced in the first trial does not pre-
judge questions of relevance or sufficient opportunity to test in relation to charges
in the second trial, nor does it preclude reverting to certain means and sources of
evidence, if necessary.’89 In earlier assessments of the Trial Chamber’s severance
approach, the SCC repeatedly questioned its potential efficiency benefits, noting
the likelihood that there would be duplicative evidence presentation ‘considering
that certain evidence, for example with regard to the position and powers of the
accused, would likely need to be presented and considered in each trial[.]’90
Likewise, international court jurisprudence has expressed concern that split factu-
ally related trials would be less economical because of duplicative evidence pres-
entation. For example, in the Milošević case, the ICTY appeals chamber granted
joinder in part because ‘[i]f there were to be two separate trials, there would
86Clarification Regarding the Use of Evidence and the Procedure for Recall, supra note 82, § 7.
87SCC Third Severance Decision, supra note 14, § 74 (emphasis added). See also ibid. § 75, find-
ing that even if Case 002/01 was severed at the start of trial, the incorporation of its case file into
Case 002/02 would not affect the evidence’s probative value ‘considering that the evidence has
been led by the same parties and before the same panel of judges.’
88Clarification Regarding the Use of Evidence and the Procedure for Recall, supra note 82, § 8.
89SCC Third Severance Decision, supra note 14, § 75. See also Memorandum from Acting Trial
Chamber President Ya Sokhan, Clarification on the Consequences of the Severance of Case 002,
Nuon Chea and others (002-02/19-09-2007/ECCC-E318), Trial Chamber President, 13 October
2014, § 3(d), acknowledging that ‘questions of relevance may be raised and the parties will be
afforded the opportunity to test and challenge evidence already put before the Chamber in Case
002/01 insofar as it relates to the new charges in Case 002/02.’
necessarily be a large amount of evidence which would have to be repeated in

each[,]’ including on the accused’s intent to participate in a joint criminal enter-
prise relevant to both proceedings.91 And in the Mladić case, an ICTY trial cham-
ber said that ‘witness evidence relating to the acts and conduct of the Accused
presented in the first trial in many instances could not be introduced into the sec-
ond trial without allowing the opposing party a right to cross-examine that wit-
ness.’92 As the Trial Chamber’s application of the evidence rules was often highly
controversial in Case 002/01, there is likely to be significant disagreement about
which previously admitted documents the parties have had the opportunity to chal-
lenge,93 and which witnesses the parties have had an opportunity to ‘fully exam-
ine.’94 It remains to be seen if the evidentiary ‘foundation’ of Case 002/01 can be
largely imported into Case 002/02 or, due to the different focus of Case 002/02
and defense objections, must be either repeated or debated at length.
16.3.2.3 Adoption of Findings from the First Trial
In the Case 002/01 Judgment, the Trial Chamber made factual findings based on
admitted evidence and its underlying legal conclusions, many of which may be
relevant to Case 002/02. Before the judgment was issued, the SCC emphasized,
91Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder,
Milošević (IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73), Appeals Chamber, 18 April

2002, §§ 30–32. The ECCC Trial Chamber found these concerns to not be clearly applicable
to Case 002 because the accused are represented by counsel and the ICTY Appeals Chamber
‘considered that two successive trials would be particularly onerous to Milošević as he was rep-
resenting himself.’ Decision on Additional Severance of Case 002, supra note 3, § 20. However,
the appeals chamber did not highlight this aspect of the potential burden on the accused—one of
four factors discussed—as a dispositive factor in its decision. See Milošević decision, supra § 27.
93See e.g., Mr Khieu Samphan’s Motion Reasserting His Right to a Fair and Adversarial
Criminal Trial, Nuon Chea and others (002/19-09-2007/ECCC-E263), Trial Chamber, 11

February 2013, challenging the consistency and fairness of the Trial Chamber’s approach to doc-
umentary evidence in Case 002/01.
94For example, although some Case 002/01 witnesses could be questioned regarding the entire
Case 002 indictment, the Trial Chamber often discouraged the practice in an effort to expedite
the process. See e.g., Decision on Assignment of Experts, supra note 59, § 4, allowing experts
to testify on all matters related to the Case 002 closing order, but reminding parties ‘that the
principal focus of their examination should remain on the subject-matter of Case 002/01.’
Time limits on questioning also may have made this impractical in some cases. Nuon Chea has
said that ‘[d]etailed cross-examination’ of Case 002/01 witnesses about questions outside the
scope of that case—but discussed under the heading of ‘structure’—‘would have been beyond
the scope of Case 002/01 as well as a poor strategic use of the defence’s allotted time[,]’ and
argued that these witnesses must be reheard when additional trials were held. Immediate Appeal
Against Trial Chamber’s Second Decision on Severance, supra note 73, § 19. His team asked the
Chamber to adopt a liberal standard for the recall of witnesses. See Nuon Chea’s Response to
Co-Prosecutors’ Submission Regarding Use of Evidence from Case 002/01 in Case 002/02, Nuon
Chea and others (002/19-09-2007/ECCC-E302/2), Trial Chamber, 3 February 2014, § 4.
454 A. Heindel
‘Even though evidence remains formally common to the severed cases, this com-
monality does not extend to findings, and common factual elements in all cases
resulting from Case 002 must be established anew.’95 The Trial Chamber has inter-
preted ‘this commonality does not extend to findings’ to mean that it is not bound
by its Case 002/01 findings,96 not that it must make findings anew, suggesting that
it still does not consider itself obligated to ‘start from the very beginning’ and
‘reconsider decisions made during the Case 002/01 proceedings.’97
The mechanisms by which findings from one trial can be adopted into a second
are limited. Until recently,98 the prosecutors were emphasizing that ‘[i]t may be
legally impossible to expedite subsequent trials by relying on the foundation estab-
lished in the first trial concerning the roles of the Accused,’ noting that the only
way for the Trial Chamber to adopt factual findings from the first trial into a sec-
ond trial would be through judicial notice of adjudicated facts or res judicata.99
Due to the novelty of the Case 002 severance procedure, there appears to be no
international precedent in which these mechanisms were applied ‘in the second
trial of the same accused for different crimes with related facts.’100

96Clarificationon the Consequences of the Severance of Case 002, supra note 89, § 3(e), stating:
‘Findings made in Case 002/01 including those based on evidence also relevant to Case 002/02
do not bind the Chamber, and common factual elements in all cases resulting from Case 02 will
be established anew.’
97See President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber
to Try the Remaining Charges in Case 002, supra note 55, §§ 7–8 (discussing the efficiency ben-
efits of having the second case heard by the same judges).
98In discussions preceding the start of Case 002/02, the prosecution’s perspective on this prob-
lem shifted. It later became the prosecution’s view that there was no need to take judicial notice of
adjudicated factual findings in Case 002/01; instead, as discussed in the section above, they want all
evidence admitted in Case 002/01 to be automatically admitted in Case 002/02, and thus available
together with newly admitted evidence as a basis for factual findings, which the Trial Chamber agreed
to do. See Co-Prosecutors’ Comments on Agenda of Trial Management Meeting for Case 002/02,
Nuon Chea and others (002/19-09-2007/ECCC-E301/1), Trial Chamber, 20 November 2013, § 3.
99Co-Prosecutors’ Request for Reconsideration, supra note 28, § 26. Judicial notice ‘establishes
a well-founded presumption for the accuracy of [a] fact’ and shifts the burden to the disputing
party to disprove it. Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts
and for Admission of Written Statements of Witnesses Pursuant to Rule 92bis, Krajišnik (IT-00-
39-PT), Trial Chamber, 28 February 2003, § 16. Res judicata only applies inter partes to matters
already fully determined in a case or to an individual if a prior criminal case had fully litigated
the issue. Judgment, Delalić (IT-96-21-T), Trial Chamber, 16 November 1998, § 228.
100See Transcript of Proceedings 11 February 2014, supra note 83, at 11–12, quoting the prose-
cution. At the ICTY, the judicial notice rule provides in part: ‘At the request of a party or proprio
motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated
facts or of the authenticity of documentary evidence from other proceedings of the Tribunal relat-
ing to matters at issue in the current proceedings.’ Rule 94(B) ICTY RPE. The ICTY Appeals
Chamber has ruled that ‘[o]nly facts in a judgement, from which there has been no appeal, or
as to which any appellate proceedings have concluded, can truly be deemed ‘adjudicated
facts’ within the meaning of Rule 94(B).’ Decision on the Motions of Drago Josipovic, Zoran
Kupreškic and Vlatko Kupreškic to Admit Additional Evidence Pursuant to Rule 115 and for
The SCC has said that importing factual findings from one case into another
through judicial notice is subject to ‘all the attaching limitations.’101 According to
the prosecutors’ review of international jurisprudence on the taking of judicial
notice:
In order to be “truly adjudicated”, the particular factual finding must (i) be distinct, con-
crete and identifiable; (ii) be restricted to factual findings and not include legal characteri-
sations; (iii) have been contested at trial and form part of a judgment which has either not
been appealed or has been finally settled on appeal; or fall within issues which are not in
dispute during a pending appeal; (iv) not have a bearing on the criminal responsibility of
the accused; (v) not be the subject of (reasonable) dispute between the parties in the pre-
sent case; (vi) not be based on plea agreements in previous cases (or voluntary admissions
by the accused); and (vii) not negatively affect the right of the Accused to a fair tria1.102
Further complicating matters, the Trial Chamber has previously found ‘no legal
basis in the Law on the Establishment of the ECCC or in the Internal Rules for the
Chamber to take judicial notice of adjudicated facts […] before the ECCC.’103 For
these reasons, judicial notice is not a promising mechanism for adopting factual
findings from the first trial into the second.
As the prosecutors have noted, res judicata has only been applied in criminal
cases ‘“to the question of whether, when the previous trial of a particular individ-
ual is followed by another one of the same individual, a specific matter has already
been fully litigated”.’104 It is not clear that the roles and responsibilities of the
accused for all crimes in the indictment were ‘fully’ litigated in Case 002/01;
moreover, res judicata, like judicial notice, would not be available until factual
issues have been finally adjudicated. Thus neither would be available in Case
002/02 until the SCC issued its final judgment in Case 002/01.105
Despite the apparent lack of availability of judicial notice or res judicata, the
Trial Chamber repeatedly said that there was no impediment to using an initial
trial verdict as a foundation for additional proceedings without waiting for the
Footnote 100 (continued)

Judicial Notice to Be Taken Pursuant to Rule 94(B), Kupreškic and others, (IT-95-16), Appeals
Chamber, 8 May 2001, § 6. ‘By taking judicial notice of an adjudicated fact, a Chamber estab-
lishes a well-founded presumption for the accuracy of this fact, which therefore does not have to
be proven again at trial, but which, subject to that presumption, may be challenged at that trial[.]’
Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003
Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, S. Milosevic (IT-02-
54-AR73.5), Appeals Chamber, 28 October 2003 (citation omitted).
102Co-Prosecutors’ Request for Reconsideration, supra note 28, § 27 (citations omitted).
103Decision on Ieng Sary’s Motions Regarding Judicial Notice of Adjudicated Facts from Case
001 and Facts of Common Knowledge Being Applied in Case 002, Nuon Chea and others
(002/19-09-2007/ECCC-E69/1), Trial Chamber, 4 April 2011, at 3.
104Co-Prosecutors’ Request for Reconsideration, supra note 28, § 28.
105See Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case
002/01, supra note 46, n. 42.

456 A. Heindel
SCC appeal judgment,106 highlighting the importance of ensuring an expeditious

start to proceedings in order to protect the accused’s fair trial rights and noting
that all parties would be equally prejudiced by the lack of legal finality.107
However, according to the SCC, moving forward without the appeal judgment did
create one unique risk of prejudice against the accused: the potential for factual
findings common to Cases 002/01 and 002/02 that ‘evince attributing criminal
responsibility to the Co-Accused in relation to the charges to be adjudicated’ in
Case 002/02.108
16.3.3 Bias Concerns
The SCC repeatedly forewarned that it had concerns regarding Trial Chamber’s
legal and practical capacity to hear consecutive cases against the same accused. It
first suggested that the establishment of a second trial chamber be considered, then
ordered the Court’s Office of Administration ‘to immediately explore’ the creation
of a second trial chamber if consecutive trials were intended, both to allow a sec-
ond trial to begin immediately while the Trial Chamber was drafting the Case
002/01 Judgment and to eliminate actual or apparent bias arising from the same
judges adjudicating both proceedings.109 These concerns were also raised by the
Mladić trial chamber, which rejected a prosecution request to sever an indictment
into two trials in part due to ‘significant’ concern that ‘[t]he partiality and appear-
ance of partiality of the Chamber could be raised if the Chamber were to hear both
cases.’110
To the contrary, the ECCC Trial Chamber viewed its familiarity with Case
002/01 as an advantage to expeditiousness, including among its reasons for not
seeking the creation of a second trial chamber the fact that a new panel of judges
may need ‘to hear certain witnesses already heard [sic] Case 002/01 and to
106See Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, §§ 7–8, 10. An
SCC Case 002/01 verdict was expected to be issued a year or more into evidentiary proceed-
ings. See Decision on Khieu Samphan Request to Postpone Commencement of Case 002/02 until
a Final Judgment Is Handed Down in Case 002/01 (002/19-09-2007/ECCC-E301/5/5/1), Trial
Chamber, 21 March 2014, § 11, referencing the prosecution’s estimate based on the passage of
time between the trial and appeals judgments in Case 001 that the SCC would take at least a year
and a half to issue its Case 002/01 Judgment. As of January 2016, no 002/02 appeals judgment
had been issued.
107Decision on Co-Prosecutors’ Request for Reconsideration, supra note 30, §§ 9–12.
108See SCC Third Severance Decision, supra note 14, §§ 83, 85.
109Order Regarding the Establishment of a Second Trial Panel, Nuon Chea and others
(002/19-09-2007/ECCC-E284/4/7/1), Supreme Court Chamber, 23 July 2013; SCC First

Severance Decision, supra note 7, § 51.
reconsider decisions made during the Case 002/01 proceedings[,]’ whereas the
current panel are already familiar with the case, including the evidence already
presented.111
The ECCC Internal Rules provide:
Any party may file an application for disqualification of a judge in any case in which the
Judge has a personal or financial interest or concerning which the Judge has, or has had,
any association which objectively might affect his or her impartiality, or objectively gives
rise to the appearance of bias.112
ECCC jurisprudence has applied the test established by the ICTY Appeals
Chamber for appearance of bias: ‘The circumstances would lead a reasonable
observer, properly informed, to reasonably apprehend bias.’113 The ECCC
Chambers have not found this standard met when general questions of bias have
been raised regarding the fact that a judge is a member of the political party gov-
erning Cambodia or when serious ethical questions arose regarding a judge’s fit-
ness to serve. The Chambers have consistently emphasized that a presumption of
objectivity arises from the ECCC’s ‘internationally agreed’ selection criteria and
the judicial oath,114 whereas ‘disqualification pertains to bias against a particular
accused in relation to a particular case[.]’115 However, the SCC has noted that ‘the
strong presumption of impartiality of professional judges, even in cases that have
overlapping evidence or fact patterns,’ does not extend to cases where the judges’
prior findings ‘pronounced on criminal responsibility.’116
The Trial Chamber has stated that it ‘will not import any attribution of criminal
responsibility from Case 002/01 into Case 002/02’117; and the prosecution has said
that there is ‘no legal basis’ to conclude that the judges would not be impartial in
hearing a second case.118 However, the Nuon Chea team has argued that
111President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber,
supra note 55, §§ 7–8. But cf. Mladić decision, supra note 13, § 34, noting that the need for a
trial chamber to rehear witnesses in the second case would be the same whether or not the same
chamber heard both cases.
112Rule 34(2) ECCC Internal Rules (emphasis added).
113Public Decision on the Co-Lawyers’ Urgent Application for Disqualification of Judge Ney
Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea,
Nuon Chea and others (002/19-09-2007/ECCC-C11/29), Pre-Trial Chamber, 4 February 2008,
§ 20, citing Judgment, Furundzija (IT-95-17/1-A), Appeals Chamber, 21 July 2000, § 189.
114See e.g., Public Decision on the Co-Lawyers’ Urgent Application for Disqualification of Judge
Ney Thol, supra note 113, §§ 15–19.

115Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests,
Nuon Chea and others (002/19-09-2007/ECCC-E5/3), Trial Chamber, 28 January 2011, § 8.

117Clarification on the Consequences of the Severance of Case 002, supra note 89, § 3(f).
118Co-Prosecutors’ Submission Regarding the Scope of Case 002/02 and Trial Schedule with Annex
A, Nuon Chea and others (002/19-09-2007/ECCC-E301/2), Trial Chamber, 5 December 2013, § 5.

See also generally Co-Prosecutors’ Response to Nuon Chea’s Disqualification Application, Nuon
Chea and others (002/19-09-2007/ECCC-E314/9), Trial Chamber, 10 October 2014.
458 A. Heindel
‘[s]equential trials before the same panel of judges would … violate the presump-
tion of innocence and the right to an independent and impartial tribunal.’119 This is
because ‘the conclusions made by [the Trial] Chamber on the basis of partial evi-
dence [in Case 002/01] would form the basis for findings of fact concerning poli-
cies at issue in Case 002/02, and would necessarily bias this Chamber in its
adjudication of that second trial.’120 In the team’s view, ‘There seems to be no
realistic possibility […] to persuade [the Trial] Chamber that the conclusions it
formed after 17 months of proceedings were incorrect.’121 A special trial panel
dismissed the Khieu Samphan and Nuon Chea bias challenges against the Trial
Chamber judges,122 but the SCC has yet to rule on this question.
16.4 Conclusion
The ECCC Trial Chamber’s novel approach to severance was intended to reach
judgment against elderly accused on at least a few of the grave charges in an enor-
mous, and arguably unrealistically large, indictment before they and their alleged
victims passed away. However, procedural uncertainties regarding the status of the
remaining charges, the scope of relevant evidence in Case 002/01, the legitimacy
of using Case 002/01 evidence and findings in subsequent cases, and the poten-
tial for judicial bias raised serious fair trial concerns including delays that were
exacerbated by the Trial Chamber’s tendency to avoid acknowledging and address-
ing potential problems in advance. It appears that the implementation of the sever-
ance scheme has been more chaotic than necessary and some potential gains in
expeditiousness have been squandered.
Despite the scheme’s flaws, the SCC has supported its underlying aim, ruling
that ‘delays and inefficiencies occasioned to future trials by further severance may
be mitigated by the more pressing interests of ensuring meaningful justice through
obtaining a verdict on at least those remaining charges which will render the com-
bination of Cases 002/01 and 002/02 reasonably representative of the indict-
ment.’123 However, if the accused pass away before a Case 002/02 judgment is
119Immediate Appeal Against Trial Chamber’s Second Decision on Severance, supra note 73, § 12.
120Addendum to Reply to OCP Response to Nuon Chea’s Immediate Appeal, supra note 70, § 22.
121Transcript of Proceedings 11 February 2014, supra note 83, at 44. See also Transcript of
Proceedings 12 December 2013, supra note 77, at 92–93.

122Decision on Applications for the Disqualification of Trial Chamber Judges, Nuon Chea and
others (002/19-09-2007/ECCC-E314/12), Special Panel, 14 November 2014 (decision with rea-

soning to follow). See Mr Khieu Samphan’s Request for Reconsideration of the Need to Await
Final Judgment in Case 002/01 Before Commencing Case 002/02 and the Appointment of a New
Panel of Trial Judges, Nuon Chea and others (002/19-09-2007/ECCC-E314/1), Trial Chamber,
25 August 2014; Nuon Chea Application for Disqualification of Judges, supra note 75.
123SCC Third Severance Decision, supra note 14, § 87. See also ibid. §§ 54–55, 62.
reached, then only to the extent that the verdict in Case 002/01 alone has been
meaningful for victims, including those Case 002 civil parties whose harms were
not discussed in the first case,124 can the approach be considered a success.
It remains an open question if the severance of one indictment into several con-
secutive cases could be a useful tool for other mass crimes courts. Evidentiary
confusion and bias concerns suggest that caution would be appropriate where the
factual basis of severed charges is interconnected. Noting a range of management
and procedural challenges similar to those experienced by the ECCC, the Mladić
trial chamber expressed a preference for reducing the size and scope of an indict-
ment, rather than severing it into consecutive cases.125 Due to the numerous fair-
ness and efficiency problems that have arisen in Case 002, smaller indictments
may provide a better model for expediting mass crimes cases, despite the inherent
difficulty in selecting representative charges that will be sufficiently meaningful to
victims.
124Before Case 002 was severed nearly 4,000 victims applied to be Civil Parties and most were
admitted on appeal. Out of the nearly 4,000 victims taking part, only around 750 were admitted
due to harm related to the charges of forced movement at issue. The Trial Chamber nevertheless
let all victims remain part of the consolidated group by default. Those civil parties who did not
suffer harm from one of the crimes charged in the first case therefore heard no evidence related
to their harms, nor did the first judgment address them. See e.g., Julia Wallace, ‘“Mini-Trials”
a Mixed Blessing for KR Victims.’ Cambodia Daily, 11 July 2012, quoting former Civil Party
Lawyer Silke Studzinsky: ‘The severance order has a huge impact on more than 70 percent of
our clients […]. Their participation rights are moot. They cannot address the crimes and the suf-
fering for which they are admitted [as civil parties].’
Chapter 17
Frail Accused and Fitness to Stand Trial
Roger L. Phillips
Abstract Due to the age of the Accused at the ECCC, the Chambers dealt repeatedly
with the issue of the Accuseds’ fitness to stand trial and the specific accommodations
necessary to ensure their meaningful participation in the proceedings. The ECCC
plenary created a special rule to govern video-link participation of the Accused. The
rule became controversial in its application, if not its premise. Prior to the trial in
Case 002, the Accused IENG Thirith was found to suffer from Alzheimer’s disease.
The course of her assessments, treatment to render her fit, and the eventual condi-
tions upon her release were the subject of repeated Trial Chamber proceedings and
immediate appeals to the Supreme Court Chamber. Later, the physical fitness of the
remaining accused in Case 002 took center stage. The ECCC Chambers followed
well-established standards for ascertaining fitness to stand trial. The Chambers were
also forced to grapple with the concept of meaningful participation and what accom-
modations and treatments are necessary or proper in the context of a criminal pros-
ecution. The legacy of these procedures may help to enshrine fundamental fair trial
principles, such as the concept of in dubio pro reo and strict adherence to the require-
ment of meaningful participation. The ECCC may have lost an opportunity, how-
ever, to clarify other areas of law such as the law of informed consent for medical
treatment.
Keywords International criminal procedure · Fair trial · Fitness to stand trial ·

Mental fitness · Physical fitness · Trial management · Criminal charges ·
Elderly accused · Right to be present
The author is Legal Officer in the Trial Chamber of the ECCC. The views expressed herein are
those of the Author and do not necessarily reflect the views of the United Nations.
R.L. Phillips (*)
ECCC, Phnom Penh, Cambodia
e-mail: rogerluphillips@gmail.com

DOI 10.1007/978-94-6265-105-0_17
462 R.L. Phillips
Contents
17.1 Introduction........................................................................................................................ 460
17.2 Managing a Trial of Elderly Accused................................................................................ 461
17.2.1 Audio-Video Participation—Internal Rule 81........................................................ 462
17.2.2 Enforced Presence in the Courtroom...................................................................... 464
17.2.3 Enforced Presence in the Holding Cell.................................................................. 466
17.3 Standards for Determining Fitness to Stand Trial.............................................................. 467
17.4 Mental Fitness of the Accused to Stand Trial.................................................................... 469
17.4.1 History of Mental Fitness at International Tribunals.............................................. 470
17.4.2 IENG Thirith.......................................................................................................... 472
17.5 Physical Fitness to Stand Trial........................................................................................... 482
17.5.1 Nuon Chea.............................................................................................................. 482
17.5.2 Ieng Sary................................................................................................................. 484
17.5.3 Khieu Samphan...................................................................................................... 485
17.6 Conclusion......................................................................................................................... 486
References................................................................................................................................... 487
[O]ne of the great problems of writing about Democratic Kampuchea, and the
problem for you, as a court, in judging it, is that to such a great extent you’re rely-
ing on memory. And documents may be relied on; at least the contemporary docu-
ments say what they say. Memory is treacherous.
Philip Short, Trial Transcript, 9 May 2013, p. 74.
Notwithstanding the precarious physical health of the Accused, which is described

by the Medical Experts as frail, the Medical Report is clear that the Accused’s
current condition permits him to continue his participation in these proceedings.
Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, Nuon Chea and
others (002/19-09-2007/ECCC-E256/5), 2 April 2013, § 30.
17.1 Introduction
From the time of the establishment of the ECCC, it was clear that the mental and
physical fitness of the accused to stand trial was likely to be at issue. In 2007,
when the Office of Co-Investigating Judges (OCIJ) began their work, twenty-eight
years had passed since the invasion of Vietnam into Cambodia forcing the Khmer
Rouge out of power. The senior leaders of Democratic Kampuchea and ‘those
most responsible’ for atrocity crimes committed from 1975 to 1979 in Cambodia
were elderly. This created a situation where the ability of the Accused to proceed
to trial came into question, both as a matter of trial management and in terms
of the ability of the Accused to understand and participate meaningfully in the
proceedings.
17 Frail Accused and Fitness to Stand Trial 463
Duch did not raise the issue of fitness to stand trial in Case 001, but in Case 002
there were persistent issues of fitness of the Accused. The assessment of compe-
tency to stand trial is highly fact specific. The normal aging-process necessarily
reduces the stamina and capacities of an individual and the assessments in Case
002 required an exercise in line-drawing: when had the capacities of an elderly
Accused become so attenuated as to prevent their meaningful participation in the
proceedings against them, either temporarily or permanently. With regard to Ieng
Thirith, the major issue was the presence and extent of dementia and its effect
upon her ability to understand the proceedings. Ieng Sary, Nuon Chea and to a
lesser extent Khieu Samphan, each confronted issues arising out of their physical
condition and how this may have affected their ability to follow the proceedings in
a meaningful way.
This Chapter begins in Sect. 17.2 by addressing some of the trial management
challenges arising in the context of a joint trial of elderly Accused, including the
novel issue of participation of the Accused by audio-visual means. The remainder
of the Chapter addresses issues regarding Fitness of the Accused to stand trial.
Section 17.3 sets forth the law applicable to the fitness of the Accused to stand
trial as derived from the ECCC legal framework and international legal precedent.
This chapter proceeds with an issue-based approach by examining first issues
related to mental fitness to stand trial in Sect. 17.4 and then moving to issues
related to physical fitness to stand trial in Sect. 17.5. Finally, Sect. 17.6 consoli-
dates a number of lessons that can be derived from the experience of the ECCC,
both for the national judiciary and other jurisdictions.1
17.2 Managing a Trial of Elderly Accused
At the time of the opening statements in Case 002 on 21 November 2011, the
Accused were already advanced in age: Nuon Chea was 85, Ieng Sary, 86, Khieu
Samphan, 80 and Ieng Thirith, 79.2 As the trial progressed, and each of the
Accused in Case 002 began to suffer from physical illnesses, scheduling proceed-
ings became increasingly difficult.3 In the trial of a single accused, a chamber will
1Many of the medical documents relevant to this Chapter remain confidential or strictly confiden-
tial. However, the public documents, including the Chamber’s decisions and the public testimony
provided by expert witnesses, provide a relatively full picture.
2Closing Order, Nuon Chea and others (002-09-2007/ECCC-D427), Co-Investigating Judges, 15
September 2010, §§ 1577, 1585, 1598 and 1605.

3The Chamber was forced to adjourn certain proceedings due to the inability of the accused to
participate meaningfully. See e.g., Transcript of Trial Proceedings (Public), Nuon Chea and oth-
ers (002/19-09-2007-ECCC-E1/74.1), Trial Chamber, 21 May 2012 at 9.
464 R.L. Phillips
need to adjourn a hearing when the Accused is unable to participate. In a case of

four accused, the chances that any one of the accused will be unable to participate
at any given time is increased significantly. At times, certain accused in Case 002
waived their right to be present. But in the absence of waiver, the Chamber was
forced to adjourn the proceedings, to reschedule witnesses, civil parties and
experts and to prolong the duration of the trial. This was in part the result of a
decision to try the elderly Accused jointly, heightening the potential for conflict
with the right of other Accused to be tried without undue delay.4 But in some ways
delay was unavoidable due to the age of the Accused. Such issues would continue
to present themselves throughout the trial in Case 002. There were other times
during the trial when the Accused were weak, but still able to participate meaning-
fully in the proceedings. Audio-visual participation of the Accused was conceived
to assist the progress of evidence in these situations.
17.2.1 Audio-Video Participation—Internal Rule 81
Internal Rule 81—A necessary consideration, if not precondition, for the effective
exercise of an accused’s fair trial rights is his or her presence during the proceed-
ings. This is a right that is enshrined in the ICCPR as well as the ECCC legal
framework.5 An accused’s right to be tried in his or her presence implies a right to
be physically present at trial.6 However, an Accused’s right to be tried in his pres-
ence is not absolute and may be waived or forfeited.7 In addition, there may be cir-
cumstances where it is reasonable to continue the trial in the absence of the
Accused even where he or she has not waived or forfeited this right. In such cases,
4See Decision on Prosecution’s Oral Request for the Separation of Trials, Brđanin and Talic
(IT-99-36), Trial Chamber, 20 September 2002, § 26.
5International Covenant on Civil and Political Rights, Article 14(d); ECCC Law, Article 35 new
(c) (An Accused has the right ‘to be tried in their own presence and to defend themselves in per-
son or with the assistance of counsel of their own choosing, to be informed of this right and to
have legal assistance assigned to them free of charge if they do not have sufficient means to pay
for it.’); Internal Rule 81 (1)(‘The Accused shall be tried in his or her presence, except as pro-
vided in this Rule.’).
6Decision on Interlocutory Appeal, Zigiranyirazo (ICTR-01-73-AR73), Appeals Chamber, 30
October 2006, § 13 (‘Zigiranyirazo Appeal Decision’).

7Judgment, Bagasora and Nsengiyumva (ICTR-98-41-A), Appeals Chamber, 14 December 2011,
§ 43 (‘Bagasora Appeal Judgement’); Decision on Defence Appeal of the Decision on Future

Course of Proceedings, Stanišic and Simatovic (IT-03-69-AR73.2), Appeals Chamber, 16 May
2008, § 6 (‘Stanišic Appeal Decision’); Decision on Nzirorera’s Interlocutory Appeal Concerning
his Right to be Present at Trial, Karemera et al. (ICTR-98-44-AR73.10), Appeals Chamber, 5
October 2007, § 11 (‘Karemera Appeal Decision’); Zigiranyirazo Appeal Decision, supra
note 6, § 14.
‘any restriction on [this] fundamental right must be in service of a sufficiently

important objective and must impair the right no more than is necessary to accom-
plish the objective’ (i.e. the principle of proportionality).8
The ad hoc tribunals have found that the Chamber should consider the following
factors in determining whether a trial may continue in the absence of the Accused:
whether the Chamber had considered all reasonable alternatives to the physical
absence of the Accused in the courtroom9; whether the absence of the Accused
would occasion only a brief delay in the proceedings10; whether an Accused could
effectively participate in the trial via audio-visual means11; whether the testimony
in question concerned the acts and conduct of the accused12; the nature of proceed-
ings (i.e. evidentiary or legal argument)13; and whether the Accused was voluntar-
ily absenting his or herself without medical justification.14
With these principles in mind, the ECCC plenary, a body composed of all
ECCC judges, the Co-Prosecutors, the Victims Support Section, the Defence
Support Section and the office of administration,15 considered the possibility of
permitting the participation of the Accused in the proceedings by audio-visual
8Zigiranyirazo Appeal Decision, supra note 6, § 14.

9Zigiranirazo Appeal Decision, supra note 6, § 20; Stanisic Appeal Decision, supra note 7, § 19;
Bagasora Appeal Judgement, supra note 7, § 59.
10Stanisic Appeal Decision, supra note 7, § 18 (holding participation via audio-visual means
violated right to be present where the commencement of trial would have been delayed by
3–6 weeks to give the Accused time to recover from his psychiatric disorder); Cf. the next two
cases which do not involve participation via audio-visual means: Bagasora Appeal Judgement,
supra note 7, § 61 (holding expected one-week delay to permit the Accused to rest, was not suf-
ficient to outweigh his statutory right to be present); Karemera Appeal Decision, supra note 7, §
15 (holding medically recommended 3 day delay to the trial was not sufficient to outweigh right
to be present).
11Stanisic Appeal Decision, supra note 7, § 20.
12Bagasora Appeal Judgement, supra note 7, § 58 (‘the relevance of a witness’s testimony to an
accused is a factor which can be considered by the Trial Chamber in determining whether to con-
tinue trial in the absence of that accused.’) reversing and overruling Karemera Appeal Decision
which had held that ‘in the circumstances of a joint trial, it is irrelevant for the purposes of that
determination [of proportionality] whether or not the witness’s testimony was likely to concern
the alleged acts and conduct of a co-accused only’; See also Zigiranyirazo Appeal Decision,
supra note 6, § 21 (holding Accused has stronger interest to be present where testimony concerns
his alleged acts and conduct.).
13Bagasora Appeal Judgement, supra note 7, § 62.
14Bagasora Appeal Judgement, supra note 7, § 48; Internal Rule 81(4) (‘If the Accused […] con-
tinues to refuse or fails to attend the proceedings […] the proceedings may continue in his or
her absence. In such cases, the Accused may be defended during the proceedings by his or her
lawyer.’).
15Internal Rule 18.
466 R.L. Phillips
means.16 Internal Rule 81(5) as adopted by the plenary in February 2011,

now provides:
Where, due to health reasons or other serious concerns, the Accused cannot attend in per-
son before the Chamber but is otherwise physically and mentally fit to participate, the
Chamber may either continue the proceedings in the Accused’s absence with his or her
consent or, where the Accused’s absence reaches a level that causes substantial delay and,
where the interests of justice so require, order that the Accused’s participation before the
Chamber shall be by appropriate audio-visual means. In such cases, the Accused may
be defended during the proceedings by his or her lawyer. Where the Accused refuses to
choose a lawyer, the Chamber shall order that the accused be represented by a lawyer and
request the Defence Support Section to assign him or her a lawyer, from the lists men-
tioned at Rule 11.
In order to put this rule into effect, the ECCC built holding cells physically
located underneath the courtroom and equipped with a video monitor displaying
the proceedings and a telephone to communicate with counsel.17 Each of the hold-
ing cells was eventually equipped with a hospital bed as well.18 The effect of this
rule was that Accused were often not physically located in the courtroom.
17.2.2 Enforced Presence in the Courtroom
Early in the proceedings, Ieng Sary and Nuon Chea at times sought to waive their
presence at trial where the Chamber considered it was indispensable for the
Accused to be present. On these occasions, the Chamber issued an order to bring
16Introductory note to proposed amendment to rule 81 at plenary meeting of February 2011:
‘While in-court presence of an Accused at trial is the clear norm, difficulties of ensuring the nec-
essary expeditiousness of proceedings can arise where Accused are in frail health. The practice
of the ad hoc Tribunals has envisaged participation of an Accused via video-conference as an
alternative to in-court presence, where proportionate to the situation at hand, necessary in the
interests of justice and where certain conditions are satisfied. Video-conference facilities ena-
ble the Accused both to follow proceedings and to communicate with his counsel in court and
where safeguards are followed, are compatible with fair trial standards. Although care must be
taken to ensure that the application of this measure is carefully distinguished from the issue of an
Accused’s capacity to stand trial, a mechanism allowing a frail Accused the option of participa-
tion via video-conference as an alternative to presence in the courtroom has in practice enabled
Trial Chambers to minimise the disruptive effects to the trial of Accused whose state of health
may otherwise jeopardise appropriate trial scheduling. The proposed amendment is designed to
enable the Trial Chamber to permit participation by video-conference as an alternative to the
unnecessary and continuous adjournment of the trial, and is a simplified version of the similar
proposal of the OCP seeking the same result.’
17Decision on Accused Ieng Sary’s Fitness to Stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E238/9), Trial Chamber, 26 November 2012, § 21 (‘Ieng Sary Fitness

Decision’).
18Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, Nuon Chea and oth-
ers (002/19-09-2007-ECCC- E256/5), Trial Chamber, 2 April 2013, § 28; Ieng Sary Fitness
Decision, supra note 17, § 21.
the Accused to the courtroom as permitted by Internal Rule 81(3). For example,
Ieng Sary sought to participate in the opening statements in Case 002 from the
holding cell and asserted it was a violation of his human rights to be forced to sit
in the courtroom when he was unable to participate.19 The Chamber rejected this
request, considering his presence was important so that he could hear the charges
against him and for the parties and the public to observe his presence.20 For other
portions of the trial, such as a hearing convened to discuss Ieng Thirith’s fitness,
the Chamber considered the presence of the Accused, in that case Ieng Thirith,
was not required.21 This practice of requiring the presence of the Accused during
crucial portions of the trial, even where the Accused have waived their presence, is
consistent with procedures later adopted by the ICC which bear mentioning here.
Article 63 ICC Statute requires the presence of the Accused at trial.
Nonetheless, when William Ruto, the sitting Kenyan Deputy President, sought to
waive his presence during a significant portion of his trial, the Trial Chamber
granted his application.22 This was overturned by the ICC Appeals Chamber, hold-
ing that absence was only justified in exceptional circumstances and limited to
when it was strictly necessary.23 One month later, in November 2013, the ICC
Assembly of States Parties adopted two new rules. Rule 134bis ICC RPE, like
ECCC Internal Rule 81, permits an Accused to seek to participate in the proceed-
ings against them through the use of video technology.24 This was likely meant to
permit Accused to participate from a geographically distant location as opposed to
assisting elderly accused to participate from a holding cell. Nonetheless, the effect
is the same. In addition, Rule 134ter ICC RPE incorporates the ICC Appeals
Chamber decision asserting that waiver of presence at trial may only be granted in
exceptional circumstances. Finally, Rule 134quater ICC RPE provides that a duty
to fulfil extraordinary public duties is an exceptional circumstance which may
serve as a grounds for a Chamber granting a waiver of an Accused’s presence at
trial. The ICC Trial Chamber subsequently granted a waiver of the Accused’s pres-
ence but maintained that he must attend certain aspects of the trial, including
19Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/14.1),

Trial Chamber, 22 November 2011, at 1 (‘Transcript of 22 November 2011’).
20Transcript of 22 November 2011, supra note 19, at 8.
21Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-
E1/119.1), Trial Chamber, 31 August 2012, at 99–100.

22Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, Ruto and Sang
(ICC-01/09-01/11), Trial Chamber, 18 June 2013.

23Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18
June 2013 entitled ‘Decision on Mr Ruto’s Request for Excusal from Continuous Presence at
Trial’, Ruto and Sang, (ICC-01/09-01/11), Appeals Chamber, 25 October 2013, § 62; see also,
Article 63 ICCSt. (‘the accused shall be present during trial’).
24Resolution ICC-ASP/12/Res.7, Adopted at the 12th plenary meeting, on 27 November 2013, by
consensus.
468 R.L. Phillips
opening and closing statements.25 This is consistent with the ECCC Trial
Chamber’s ordering the Accused to be present in the courtroom for certain aspects
of the trial even though the Accused intended to waive his presence.
17.2.3 Enforced Presence in the Holding Cell
At the initial hearing in Case 002, the Accused acknowledged the benefits of
audio-visual participation, but raised some concerns as to whether the Accused
could effectively participate in this fashion. For example, the Nuon Chea and Ieng
Sary Defence argued that the video-link technology could not substitute for the
Accused’s physical presence in the courtroom. Counsel for Ieng Thirith generally
agreed that the use of audio-visual technology satisfied the right of the Accused to
be present; however, she expressed concerns that it would not be proper where the
Accused was too ill to meaningfully participate. The Khieu Samphan Defence did
not have any observations regarding the audio-visual link procedure.26
As a practical matter, Khieu Samphan rarely participated by audio-visual
means, though both Ieng Sary and Nuon Chea utilized these facilities frequently.27
In most cases, the Accused signed written waivers of their presence when they
requested to participate in the proceedings from the holding cells. Nuon Chea did
so while his counsel made the observation that the reason why Nuon Chea was
choosing to retire to the holding cell was that he had on a daily basis ‘a backache,
a headache, and a general lack of concentration.’28
More problematically, for a brief period in December 2012 until early 2013,
Ieng Sary refused to sign a waiver of his presence and insisted on being present in
the courtroom despite his weakened condition.29 The Ieng Sary Defence insisted
25Reasons for the Decision on Excusal from Presence at Trial under Rule 134quater, Ruto and
Sang (ICC-01/09-01/11), ICC Trial Chamber, 18 February 2014.
E1/2.1), Trial Chamber, 5 April 2011, at 22, 23, 25, 29, 33.
27Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E256/5), Trial Chamber, 2 April 2013, § 4 (‘From the outset of trial pro-
ceedings in Case 002, the Accused [Nuon Chea], with some exceptions, has participated in the
morning trial sessions from the courtroom and participated in the afternoon sessions from the
holding cell by audio-visual means.’).
28See e.g., Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-
E1/101.1), Trial Chamber, 2 August 2012, at 57.

29Ieng Sary’s Withdrawal of Waivers of Right to be Present, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E237/2), Ieng Sary Defence, 3 December 2012; Ieng Sary's Notice

of Withdrawal of Waivers of Right to be Present During the Testimony of Certain Witnesses
and Civil Parties, Nuon Chea and others (002/19-09-2007/ECCC-E249), Ieng Sary Defence,
6 December 2012; see also, Decision on the Ieng Sary Defence Request to Audio and/or Video
Record Ieng Sary in the Holding Cell, Nuon Chea and others (002/19-09-2007/ECCC-E254/3),
Trial Chamber, 16 January 2013, § 3–7.
that he be present in the courtroom and not participating from the holding cell. It
argued that ‘our client is downstairs; he’s fatigued, he’s asleep, he’s semi-con-
scious and yet, we’re pretending, we’re pretending that he’s actually following the
proceedings and he’s assisting in his own defence.’30 At that time, the Trial
Chamber held that it could order audio-visual participation of the Accused over his
or her objection. It stated, ‘the Accused’s participation by audio-visual means from
the holding cell may be ordered in the interests of justice and [the Chamber] pro-
vides early notice to the parties that the Chamber may do so where no medical
basis exists to justify the Accused’s absence from proceedings, but where the
Accused’s presence in the courtroom would be contrary to his medical interests
and/or to the expeditious conduct of the trial.’31 This determination effectively
gave the Trial Chamber discretion to determine when audio-visual participation
was in the interests of justice even where the Accused might object. The Ieng Sary
Defence appealed this decision on 18 December 2012 arguing the Trial Chamber
misinterpreted Internal Rule 81(5) and that the Trial Chamber order violated Ieng
Sary’s right to be physically present in the courtroom.32 He died before the
Supreme Court Chamber ruled on this issue and other related issues.33
Where it was determined that the Accused could not participate meaningfully,
even from the holding cell, Internal Rule 81(5) was of no avail and their ability to
take part in the proceedings in any manner came into question. The remainder of
this chapter addresses these situations, but first sets forth the legal criteria applica-
ble to such an analysis.
17.3 Standards for Determining Fitness to Stand Trial
Although the ECCC Internal Rules provided for examination of the accused in
order to determine fitness to stand trial, the rules did not state the specific standard
for a determination of fitness. Therefore, as with a number of other issues, refer-
ence was made to procedural rules developed at the international level,34 such as
decisions from the ICTY and ICTR. Of note, a decision of the Special Panels for
East Timor on the fitness of a mentally disturbed accused, also provided guidance
E1/147.1), Trial Chamber, 4 December 2012, at 3–4.

31Ieng Sary Fitness Decision, supra note 17, § 37.
32Ieng Sary’s Appeal Against the Trial Chamber’s Oral Decision to Deny his Right to be Present
in the Courtroom and to Prohibit him from being Video-Recorded in the Holding Cell, Nuon
Chea and others (002/19-09-2007/ECCC-E238/9/1/1), Ieng Sary Defence, 18 December 2012.
33Post Mortem Dismissal of Ieng Sary’s Immediate Appeals, Nuon Chea and others (002/19-09-
2007/ECCC-E238/9/1/5), Supreme Court Chamber, 21 March 2013.

470 R.L. Phillips
to the parties and the Chambers deciding the issues.35 As the facts confronting the
Chambers became increasingly unique to the circumstances of the Accused’s men-
tal and physical health in Case 002, the Trial Chamber and Supreme Court
Chamber referred also to general principles of law from a number of different
national jurisdictions.
The general standards for determining fitness to stand trial were not particularly
contentious and were adopted from international precedents by the Trial Chamber,
without being disturbed by the Supreme Court Chamber. ECCC Internal Rule 32
provides that the Chamber may order a medical, psychiatric or psychological
examination by an expert for the purposes of determining whether an accused is
physically and mentally fit to stand trial. The Trial Chamber held that principles
established at the international level indicate that the standard in determining fit-
ness to stand trial is that of ‘meaningful participation which allows the accused to
exercise his fair trial rights to such a degree that he is able to participate effectively
in his trial and has an understanding of the essentials of the proceedings.’36 An
accused’s fitness to stand trial should therefore turn on whether his capacities
when viewed overall and in a reasonable and common sense manner, are at such a
level that is possible for him or her to participate in the proceedings (in some cases
with assistance) and sufficiently exercise the identified rights.37
It further relied on the framework set forth in the ICTY case of Strugar which
held, in relation to the fair trial rights protected before the ICTY (which are in sub-
stance identical to those enshrined within the ECCC legal framework38), the
appropriate approach to be adopted in determining fitness to stand trial is to evalu-
ate the capacity of the accused: to plead; to understand the nature of the charges;
35Findings and Order on Defendant Nahak’s Competence to Stand Trial, Nahak, (SPSC-
01A/2004), District Court, 1 March 2005 (‘Nahak Decision’).

36Decision on Nuon Chea’s Fitness to Stand Trial and Defense Motion for Additional Medical
Expertise, Nuon Chea and others (002/19-09-2007/ECCC-E115/3), Trial Chamber, 15 November

2011, § 16 (‘Nuon Chea Fitness Decision’); Decision on Ieng Thirith’s Fitness to Stand
Trial, Nuon Chea and others (002/19-09-2007/ECCC-E138), Trial Chamber, 17 November
2011, § 27 (‘Ieng Thirith Fitness Decision’); Ieng Sary Fitness Decision, supra note 17, §
18; Decision on the Accused Khieu Samphan Fitness to Stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E301/12), Trial Chamber, 25 April 2014, § 8 (citing Strugar Appeal
Judgement, § 55) (‘Khieu Samphan Fitness Decision’).
37Ieng Thirith Fitness Decision, supra note 36, § 26 (citing Strugar Appeal Judgement, § 55).
38See Article 13 of the Agreement, referring to Articles 14 and 15 of the 1966 International
Covenant on Civil and Political Rights (‘ICCPR’); see also Internal Rule 21(1)(d); ECCC Law,
Article 33 new (‘[T]he trial court shall ensure trials are fair and expeditious […] with full respect
for the rights of the Accused […]’) and Article 35 new of the ECCC Law (enshrining the right to
be informed of the nature of the charges against him, to adequate time and facilities for the prep-
aration of a defence, to communicate with counsel of his choice, to be tried without undue delay,
to examine the evidence against him and to the free assistance to an interpreter).
to understand the course of the proceedings; to understand the details of the evi-
dence; to instruct counsel; to understand the consequences of the proceedings; and
to testify.39
The Chamber emphasised that the assistance of legal counsel may adequately
compensate for any deficiency of a relevant capacity. Of course, the use of counsel
‘requires, however, that the accused has the capacity to be able to instruct counsel
sufficiently for this purpose.’40 The effective exercise of an accused’s fair trial
rights, even where represented, may be hindered, or even precluded, if an
accused’s mental and bodily capacities, especially the ability to understand, i.e. to
comprehend, is affected by mental or somatic disorder.41
These standards were applied in each of the manifold assessments of the
Fitness of the Accused in Case 002.
17.4 Mental Fitness of the Accused to Stand Trial
During her initial appearance before the Co-Investigating Judges in 2007,42 Ieng
Thirith made a brief statement and appeared to be coherent. Although in February
2009 during an appeal hearing, Ieng Thirith made some remarks that raised con-
cern,43 a November 2009 psychiatric assessment indicated that she had some
short-term memory difficulties and remained able to participate in the proceedings
with the assistance of counsel.44 Again during a hearing concerning whether she
should remain in pre-trial detention, Ieng Thirith referred only to apparently
39Decision re Defence Motion to Terminate Proceedings, Strugar (IT-01-42-T), Trial Chamber,
26 May 2004, § 36 (reflected in Order Appointing Psychiatric Experts, § 2) (‘Strugar Decision’);

see also Judgment, Strugar, (IT-01-42-A), Appeals Chamber, 17 July 2008, § 55 (‘in assess-
ing Strugar’s fitness to stand trial, the Trial Chamber correctly identified the non-exhaustive list
of rights which are essential for determination of an accused’s fitness to stand trial’) (‘Strugar
Appeal Judgement’); see also Nahak Decision, supra note 31 § 56.
40Strugar Decision, supra note 39, § 22.
41Strugar Decision, supra note 39, § 23.
42Written Record of Interview of Ieng Thirith, Nuon Chea and others (002/19-09-2007/
ECCC-E3/38), Co-Investigating Judges, 21 December 2009; Initial Appearance of Ieng Thirith,

Nuon Chea and others (002/19-09-2007/ECCC-D39), Co-Investigating Judges, 12 November
2007.
C20/5/19.1), Pre-Trial Chamber, 24 February 2009, at 48 (‘So don’t accuse me of murder other-
wise you will be cursed to the seventh level of hell.’).
44Ieng Thirith Fitness Decision, supra note 36, § 5, fn 8.
472 R.L. Phillips
unrelated matters such as the status of her family.45 By the time the case was sent
to trial in 2011, there were indications that Ieng Thirith was suffering from moder-
ately-severe dementia which could impact on her fitness to stand trial.46 After an
initial assessment, requested by the Ieng Thirith Defence, there ensued a long
series of medical and psychiatric assessments which resulted in Ieng Thirith being
found unfit to stand trial and being released on judicial supervision. This process
unsurprisingly brought to the fore very strong emotions as it involved two counter-
vailing interests: (1) the interest in bringing to justice those considered to be most
responsible for the atrocities committed by the Khmer Rouge, affecting millions of
Cambodians; and (2) the interest of respect for fundamental human rights, namely
the right of an accused person to understand a criminal process against her.
17.4.1 History of Mental Fitness at International Tribunals
It must be noted that there are prior precedents to finding those accused of Atrocity
crimes to be mentally unfit to stand trial. The arguments raised in these early pro-
ceedings would have parallels in Case 002. At the International Military Tribunal
at Nuremberg, mental fitness to stand trial was at issue regarding three Accused:
Streicher, Hess and Gustav Krupp.47 The former two were found fit, but the latter,
Gustav Krupp, the only industrialist to be indicted by the IMT, was found unfit.
A commission of international experts presented its findings in a report dated 7
November 1945 in which it unanimously agreed that Krupp was suffering from
‘senile softening of the brain’ due to vascular degeneration.48 This followed a prior
report, which noted that he ‘was bedridden, has to be fed and to be cared for by
nurses. He has no insight into his condition or situation whatsoever and is unable
to follow or keep up any conversation.’49 The commission noted that, as a conse-
quence of his condition, the Accused was incapable of understanding court pro-
ceedings or cooperating in interrogation. The medical experts concluded that he
would never be fit, mentally or physically, to appear before the IMT.50 Krupp was
therefore not tried.
C20/9), Pre-Trial Chamber, 15 February 2010 at 68.

46Ieng Thirith Fitness Decision, supra note 32, § 5.
47Proceedings, Third Day, Thursday, 22 November 1945, 2 Trial of the Major War Criminals,
at 156.
48Report of Medical Commission Appointed to Examine Defendant Gustav Krupp von Bohlen
(November 7, 1945), in 1 Trial of the Major War Criminals, at 127.

49Medical Certificates Attached to Certificate of Service on Defendant Gustav Krupp von
Bohlen, Attachment I (Oct. 6, 1945), in 1 Trial of the Major War Criminals, at 119.
50Ibid.
Mental fitness, and specifically the ability to concentrate, was raised by Rudolf
Hess.51 Another commission of ten experts was appointed to examine his mental
fitness.52 The commission submitted three similar reports to the Tribunal in which
the medical experts unanimously agreed that the Defendant was not insane, but
represented with hysterical amnesia. They concluded that his memory loss would
not entirely interfere with his comprehension of the proceedings, but it would
interfere with his ability to make his defence and understand details of his past.53
To the surprise of some, Hess then addressed the bench at his fitness hearing
declaring, ‘Henceforth my memory will again respond to the outside world. The
reasons for simulating loss of memory were of a tactical nature. Only my ability to
concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to
defend myself, to put questions to witnesses, or to answer questions myself is not
affected thereby.’54 He was found fit to stand trial.
At the International Military Tribunal for the Far East, Okawa Shumei was sev-
ered from the proceedings due to being deemed unfit to stand trial while two other
Accused died of illness during the proceedings.55 The issue of the Accused’s men-
tal competence was first raised when Okawa exhibited erratic behaviour at his
arraignment before the IMTFE. After flapping his clothing about, Okawa leaned
forward and struck co-defendant Tojo Hideki several times on the head and pro-
ceeded to shout incoherently in German.56 In their reports, the psychiatrists con-
cluded that Okawa was suffering from neurosyphilis, a form of tertiary syphilis
that affects mental function.57
After consideration of the expert reports, the IMTFE issued an oral decision on
9 April 1947 ordering the case against Okawa to be suspended pending improve-
ments in his mental status.58 The Tribunal was not satisfied that the Defendant was
capable of standing trial, conducting his defence, or instructing his counsel effec-
tively.59 By order of the Tribunal, Okawa was transferred to Tokyo University
Hospital and placed under Court custody.60 Shortly after the final Judgment was
51Motion on Behalf of Defendant Hess for an Examination by a Neutral Expert with Reference to
his Mental Competence and Capacity to Stand Trial (November 7, 1945), in 1Trial of the Major
War Criminals, at 155–156.
52Order of the Tribunal Rejecting the Motion on Behalf of Defendant Hess, and Designating
a Commission to Examine Defendant Hess with Reference to his Mental Competency and
Capacity to Stand Trial (November 24, 1945), in 1 Trial of the Major War Criminals, at 158
(‘Hess Order’).
53Hess Order, supra note 52, at 158.
54Hess Order, supra note 52, at 494–496.
55Judgment of 4 November 1948, in Pritchard 1998, at 48, 425; Totani 2009, at 64.
56Smith 1951, at 106.
57Pritchard 1995, at 29 (‘Pritchard, International Military Tribunal’).
58Tokyo Major War Crimes Trial, supra note 55 at 19, 638.
59Tokyo Major War Crimes Trial, supra note 55, at 19, 638, 48, 425.
60Smith 1951, at 106.
474 R.L. Phillips
issued, the Defendant regained his mental facilities and was released without
being subjected to further legal proceedings, later publishing several books.61
Several decades later at the ICTY, Vladimir Kovacevic was found unfit to enter
a plea and stand trial.62 The exact reasons for his mental incapacity were redacted
from the public version of the decision. In addition, the Special Court for Sierra
Leone dismissed charges against former rebel leader Foday Sankoh.63 He was also
likely mentally unfit to stand trial after suffering a series of strokes during his
detention from 2000 to 2003 which rendered him catatonic.64
In the cases of Krupp and Foday Sankoh, where the Accused are in a vegetative
state, it may be easier for the public to accept the diagnosis of incompetence to
stand trial. However, the cases of Okawa and Hess, where the Accused may be
thought to have feigned mental illness, may raise certain concerns with the public
that a diagnosis of mental illness, which cannot be physically verified, is incorrect
and allows an accused to escape prosecution. These concerns were to play out in
the case of Ieng Thirith who was found mentally unfit to stand trial based on a
clinical diagnosis of Alzheimer’s disease.65
17.4.2 IENG Thirith
In order to understand the sequence of events that led to a determination that Ieng
Thirith suffered from dementia it is helpful to first trace the procedural steps that
led to the Trial Chamber’s conclusion.66
On 21 February 2011, Ieng Thirith filed a request for appointment of a neu-
ropsychiatrist to assess her fitness to stand trial.67 The Trial Chamber then
61Pritchard, International Military Tribunal, supra note 53 at p. 29; Boister and Cryer 2008, at
240–241.
62Decision on Accused’s Fitness to Enter a Plea and Stand Trial, Kovacevic (IT-01-42/2), Trial
Chamber, 12 April 2006.

63Withdrawal of Indictment, Sankoh (SCSL-2003-02-I), Trial Chamber, 8 December 2003.
64Request for an Order Staying the Proceedings in the Case of Foday Saybana Sankoh, Sankoh
(SCSL-2003-02-PT), Sankoh Defence, 23 April 2003, § 7.


67Defence request for appointment of a Neuropsychiatrist to assess Madame Ieng Thirith’s fit-
ness to stand Trial with attachment, Annexes and strictly confidential annex D containing
privileged information, Nuon Chea and others (002/19-09-2007/ECCC-E52), Ieng Thirith
Defence, 21 February 2011; see also Co-Prosecutor’s Response to Ieng Thirith’s Request for
Appointment of a Neuropsychiatrist, Nuon Chea and others (002/19-09-2007/ECCC-E52/1),
1 March 2011; Defence reply to OCP response to request for appointment of a Neuropsychiatrist
to assess Madame Ieng Thirith’s fitness to stand trial, Nuon Chea and others (002/19-09-2007/
ECCC-E52/2), 7 March 2011.
informed the parties on 9 March 2011 that it intended to appoint a geriatrician for
a comprehensive assessment of the health of all accused, soliciting questions from
the parties.68 On 4 April 2011, The Chamber issued an order assigning Professor
A. John Campbell (‘Geriatrician’) to examine the Accused.69 On 24 May 2011, the
Trial Chamber ordered a psychiatrist who had previously examined IENG Thirith,
Dr. Ka Sunbaunat, to provide Professor Campbell with a report on IENG Thirith’s
cognitive function as a complement to his own examinations.70 Dr. Ka’s initial
conclusion was that Ieng Thirith’s level of cognitive impairment was ‘most likely
within the extreme limit of mild and the lowest limit of moderate cognitive impair-
ment.’ The Geriatrician sought clarification of Dr. Ka’s report and concluded in his
23 June 2011 report that Ieng Thirith suffered from ‘a moderately severe dement-
ing illness, most probably Alzheimer’s disease.’71
The Co-Prosecutors submitted that the Geriatrician was not qualified to diag-
nose the specific illness suffered by Ieng Thirith and requested the appointment of
experts with expertise in dementing disorders. Unlike common law systems where
the Defence may arrange their own medical assessments, in the ECCC legal
framework, it is the Chamber that governs the proceedings, and in this case,
appoints the experts to perform the medical assessments. In consequence, on 23
August 2011, the Trial Chamber appointed 4 psychiatrists to supplement the con-
clusions reached by Professor Campbell in determining Ieng Thirith’s cognitive
ability to stand trial. In following the hybrid structure of the ECCC, two of the
psychiatrists were Cambodian and two were international, one from the United
Kingdom and one from Singapore. The Trial Chamber also requested the
Co-Prosecutors and Ieng Thirith Defence to file any questions or comment for
consideration by the Psychiatrists.72 Before the Psychiatrists were to present their
68Memorandum for Defence teams for Ieng Sary, Ieng Thirith and Nuon Chea, Nuon Chea and
others (002/19-09-2007/ECCC-E62), Trial Chamber, 9 March 2011; see also Ieng Sary’s list of
questions and issues to put before the specialist geriatrician, Nuon Chea and others (002/19-09-
2007/ECCC), Ieng Sary Defence, 16 March 2011; Defence for Madame Ieng Thirith’s questions
for geriatric expert professor Campbell, Nuon Chea and others (002/19-09-2007/ECCC-E62/2),
Ieng Thirith Defence, 21 March 2011.
69Order Assigning Expert, Nuon Chea and others (002/19-09-2007/ECCC-E62/3), Trial Chamber,
4 April 2011.
70Order for further assessment of Ieng Thirith, Nuon Chea and others (002/19-09-2007/
ECCC-E62/3/3), Trial Chamber, 24 May 2011.

72Order appointing experts, Nuon Chea and others (002/19-09-2007/ECCC-E111), Trial
Chamber, 23 August 2011; The Chamber requested the parties to file questions to submit to the
experts: Co-prosecutors’ questions and comments for psychiatric experts regarding accused Ieng
Thirith, Nuon Chea and others (002/19-09-2007/ECCC-E111/2), Co-Prosecutors, 2 September
2011; Ieng Thirith Defence question and comments for experts in accordance with Trial
Chamber’s ‘Order Appointing Experts’, Nuon Chea and others (002/19-09-2007/ECCC-E111/3),
Ieng Thirith Defence, 2 September 2011; see also Memorandum entitled: Clarification of extend
of the Experts’ Report requested pursuant to E111 in the light of Defence questions (E111/3),
Nuon Chea and others (002/19-09-2007/ECCC-E111/4), Trial Chamber, 6 September 2011.
476 R.L. Phillips
findings, however, the Geriatrician presented his findings in a report and at the first
hearing on fitness.
Before the trial started, the Trial Chamber scheduled a hearing on fitness to
stand trial from 29 to 31 August 2011 relating to Nuon Chea and Ieng Thirith.73
During the hearing, the Geriatrician’s reports for Nuon Chea and Ieng Thirith were
examined by and discussed with the Expert.74 He concluded that Ieng Thirith was
suffering from dementia and that Alzheimer’s disease was likely contributing to
her condition.75 She required direction and would become lost within the confined
space of the detention centre where she had resided for four years.76 She mistook
her grandchildren for her own children. She failed to recall the death of close fam-
ily members.77 She also became angry easily as she became frustrated by her ina-
bility to understand what was happening and there were reports of her having
outbursts.78 The Geriatrician also said he did not feel that she was deliberately try-
ing to mislead him.79
Two residual issues prevented the Geriatrician from categorically finding Ieng
Thirith would be incapable of understanding the proceedings. First, at the time of
the Geriatrician’s report, Ieng Thirith had been prescribed psychotropic medica-
tions to assist in sleeping. In order to ensure that these medications were not
clouding the diagnosis of dementia, and because they were no longer medically
necessary, the Geriatrician recommended that these medications be reduced.80 He
later concluded that despite partial withdrawal of these medications, his diagnosis
remained unchanged.81
Second, in what served to initiate the first major controversy in this process, the
Geriatrician also noted that there are some drugs that can be effective in treating
Alzheimer’s disease.82 He testified that it is only effective in about one third of
people and may ‘pick them up a wee bit, but the decline continues’.83 He thought
it unlikely that the use of the Alzheimer’s drug would make an important clinical
73Scheduling Order for Preliminary Hearing to stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E110), Trial Chamber, 11 August 2011.
74Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/8.1),
Trial Chamber, 29 August 2011 (‘Transcript of 29 August 2011’); Transcript of Trial Proceedings
(Public), Nuon Chea and others (002/19-09-2007/ECCC-E1/8.1), Trial Chamber, 30 August 2011
(‘Transcript of 30 August 2011’).
75Transcript of 29 August 2011, supra note 74, at 36.
78Transcript of 30 August 2011, supra note 74, at 46, 54.
80Transcript of 29 August 2011, supra note 74, at 132; Ieng Thirith Fitness Decision, supra note
36, § 6.
improvement in her cognitive abilities.84 Nonetheless, he thought that it should be

tried.85 He also noted that there could be side-effects to taking the drug.86 He con-
cluded, ‘[U]ntil we’ve explore all possibilities and tried all measures to try and
improve function, we cannot be definite that she will not be able to participate in
her defence.’87 Before the possibility of treatment was further explored, however,
the Psychiatric experts presented their findings.
On 11 September 2011, the Psychiatric Experts’ report on Ieng Thirith was
filed on a strictly confidential basis.88 The Chamber scheduled a second public
hearing for 19 and 20 October to permit questioning of the Psychiatric Experts.89
Like the Geriatrician, the Psychiatric Experts concluded that Ieng Thirith had a
clinical diagnosis of dementia, characterized by a moderate impairment of her
memory, and a mild to moderate impairment of her other cognitive abilities.90 The
medical treatment for Alzheimer’s disease identified by the Geriatrician was not
opposed by the Psychiatrists, but they noted that it would only provide for small
improvements and such improvements are limited to a minority of individuals who
take it. They further noted that it is unclear whether this drug is available in
Cambodia or whether it could be administered locally.91
Despite the clear diagnosis, the varied responses of the parties exhibited their
trepidation in seeing the charges against one of the four Accused severed, and
potentially dismissed. The Defence for Ieng Thirith contended that evidence
proved that Ieng Thirith was unfit to stand trial and thus proceedings against her
should be discontinued.92 However, the national Co-Prosecutor and the Civil Party
Lead Co-Lawyers did not accept the testimony of any of the experts and argued
that Ieng Thirith could, with the assistance of counsel, follow the proceedings.93
This was consistent with some views expressed by the public suggesting that Ieng
Thirith had fooled the experts into thinking she was mentally unfit.94 The
84Transcript of 29 August 2011, supra note 74, at 138; Transcript of 30 August 2011, supra note
74, at 65.
85Ibid.
88Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/ECCC
-E1/11.1), Trial Chamber, 19 October 2011 at 72.

89Scheduling order for hearings on 19 and 20 October 2011, Nuon Chea and others (002/19-09-2007/
ECCC-E129), Trial Chamber, 10 October 2011.

92Transcript of Trial Proceedings (Public), Nuon Chea and others (002/19-09-2007/
ECCC-E1/12.1), Trial Chamber, 20 October 2011, at 90–93 (‘Transcript of 20 October 2011’).

93Transcript of 20 October 2011, supra note 92, at 119–123.
94P. Lysrun, ‘Was Ieng Thirith Smarter than the Trial Chamber?’, Phnom Penh Post, Letter to
the Editor, 23 November 2011, available at http://www.phnompenhpost.com/national/was-Ieng-

thirith-smarter-trial-chamber (visited 15 June 2015).
478 R.L. Phillips
International Co-Prosecutor took a slightly different approach and suggested that it

was premature to find Ieng Thirith unfit to stand trial until the psychotropic medi-
cation was completely withdrawn and a trial of a drug for Alzheimer’s medication
(as noted as a possibility by the Geriatrician) was administered.95
On 17 November 2011, the Trial Chamber unanimously found Ieng Thirith to
be unfit to stand trial and thus ordered the severance of the charges and a stay of
the proceedings against her. It stated:
Although the Trial Chamber acknowledges the gravity of the crimes for which the
Accused is charged, it has also found Ieng Thirith to be incapable of exercising her right,
enshrined in the ECCC legal framework, to an effective defence. Trial and continued
detention of an Accused who lacks capacity to understand proceedings against her or to
meaningfully participate in her own defence would not serve the interests of justice. Nor
would this comply with the international standards that bind this Chamber pursuant to the
ECCC Law and Agreement and which also constitute fundamental fair trial guarantees
applicable before all Cambodian courts.96
It is also noteworthy that in their separate opinion, the Cambodian judges of the
Chamber stated, ‘The integrity of the proceedings and the dignity of a human
being preclude the trial of an accused who is in a defenceless position.’97
Therefore, the Chamber acknowledged the strong interest in prosecuting former
leaders of the Khmer Rouge, but unanimously determined that a fair and impartial
system of justice requires respect for the rights of the Accused. Considering the
significant public pressure to complete prosecutions against the four Accused in
Case 002, the difficulty of reaching this finding must be acknowledged. At the
same time, there was criticism of the decision. For example, the director of the
Documentation Center for Cambodia, which had compiled much of the evidence
that formed the basis of the prosecutions at the ECCC, later stated, ‘It is difficult
for victims and indeed, all Cambodians, to accept the especially vigorous enforce-
ment of Ieng Thirith’s rights taking place at the [tribunal].’98
17.4.2.1 Release Pending Measures to Improve Fitness
Despite agreement on the diagnosis of Ieng Thirith, the Judges disagreed on

whether she should be released without any condition. The Cambodian Judges
noted a further recommendation of the Psychiatric Experts that a cognitive stimu-
lation programme, also known as occupational therapy, might be beneficial to the
Accused.99 They favoured, therefore, the treatment of the Accused in a hospital
95Transcript of 20 October 2011, supra note 92, at 118.

98‘Cambodia’s War Crimes Tribunal Releases Former Khmer Rouge Leader’, The Guardian, 16
September 2012, available at http://www.theguardian.com/world/2012/sep/16/khmer-roughe-

leader-released (visited 15 June 2015).
99Ieng Thirith Fitness Decision, supra note 36, § 64–67.
setting and a reassessment of her fitness to stand trial six-months thereafter. The
International Judges were not convinced that any treatment would render the
Accused fit to stand trial. As they found no basis for continuing her detention
when they considered she would not become fit to stand trial, they considered it
necessary to release the Accused and without condition.100
Here the unique structure of the ECCC came into play. A supermajority (i.e. 4
of the 5 Trial Judges) is required for every Trial Chamber Decision.101 In the event
that a supermajority vote could not be reached on any decision, the status quo pre-
vailed. In this case, the status quo was unclear.102 Ieng Thirith was in custody and
was found to be unfit unanimously. The Cambodian judges (the majority) consid-
ered it appropriate to release the Accused with conditions, whereas the interna-
tional judges (the minority), considered that she should be released without
condition. Either result was a change in the circumstances of her detention and
therefore neither was truly a status quo.
The Chamber was nonetheless able to agree unanimously that when there are
two possible results, one of which favours the Accused and the other which does
not, the former must prevail (in dubio pro reo). The unanimous Chamber held:
First, the Trial Chamber notes that in the event of conflicting interpretations of legal pro-
visions, the strict construction of criminal statutes requires that the interpretation most
favourable to the Accused must be preferred. As, pursuant to the presumption of inno-
cence, liberty is considered the norm, detention is an extraordinary measure which must
only be imposed in accordance with procedures established by law. … Continued deten-
tion or forced confinement in circumstances where it is unclear whether a trial will ever be
convened violates the Accused’s right to a fair trial and to liberty.
Accordingly, the Trial Chamber ordered the release of Ieng Thirith.103

Enshrining this legal principle in the Cambodian judiciary could have importance.
Nonetheless, the decision to release Ieng Thirith was subject to appeal.
17.4.2.2 Enforced Treatment to Render Fitness
The Co-Prosecutors filed an immediate appeal of the Chamber’s decision to

release Ieng Thirith without conditions, arguing there should have been additional
efforts to render her fit to stand trial.104 The Supreme Court Chamber agreed. It
100Ieng Thirith Fitness Decision, supra note 36, § 72–76.

101United Nations/Royal Government of Cambodia Agreement, Article 4.
102Cf. Dissenting opinion of Judge Jayasinghe, Decision on Immediate Appeal Against
the Trial Chamber’s Order to Release the Accused Ieng Thirith, Nuon Chea and others
(002/19-09-2007/ECCC-E138/1/7.1), Supreme Court Chamber, 13 December 2011, § 3 (con-
sidering that upon the Trial Chamber’s decision that there was no longer a basis to detain the
Accused, the new status quo was unconditional release of the Accused) (‘Dissenting opinion of
Judge Jayasinghe’).
103Ieng Thirith Fitness Decision, supra note 36.
104Co-Prosecutors’ Request for Stay of Release of Accused Ieng Thirith, Nuon Chea and others
(002/19-09-2007/ECCC-E138/1/2), Trial Chamber, 18 November 2011.

480 R.L. Phillips
held that there was a compelling public interest to prosecute the Accused and that
the Accused’s release in circumstances where she might become fit, even though
such possibility was remote, was irreconcilable with the interests of justice.105 It
held that “before concluding that the Accused is permanently unfit, the Trial
Chamber must exhaust all measures reasonably available to it that may help
improve the Accused to become fit to stand trial.”106 The Supreme Court Chamber
held, one judge dissenting, that Ieng Thirith’s continued detention was necessary
to ensure her presence at trial, should it resume. It also held, based on international
jurisprudence and jurisprudence from other national courts, that it was necessary
to continue her detention in a hospital or comparable facility “to pursue the objec-
tive of fostering improvement [in cognitive function] in a meaningful way.”107
Although the Geriatrician had recommended a three-month trial of the
Alzheimer’s medication, the Supreme Court Chamber ordered a six-month trial
based on its review of the medical literature.108 Ieng Thirith remained in the
ECCC Detention Facility throughout her subsequent treatment.
17.4.2.3 Law of Consent and Requirement of Therapeutic Treatment
At this point, an uncomfortable situation arose where a regime of medical treat-

ment was imposed upon an Accused solely for the purpose of bringing them to
trial. The UN General Assembly has adopted a set of Principles to guide the treat-
ment of mentally ill persons which require a patient’s informed consent prior to
imposing a treatment regime.109 Where informed consent is not possible to obtain
105Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused
Ieng Thirith, Nuon Chea and others (002/19-09-2007/ECCC-E138/1/7), Supreme Court
Chamber, 13 December 2011, § 28 (‘SCC Decision on Appeal of Ieng Thirith Release’).
106SCC Decision on Appeal of Ieng Thirith Release, supra note 105, § 40.
107SCC Decision on Appeal of Ieng Thirith Release, supra note 105, § 41–42; cf. Dissenting
opinion of Judge Jayasinghe, supra note 102, § 10, ‘[W]hen the unanimous opinion of the Trial
Chamber takes the view that a criminal trial becomes meaningless because the Accused is unable
to stand trial, and the continuation of the proceedings against the Accused would not serve the
interest of justice, the continued detention in a hospital becomes inexplicable or incompatible
with the reasoning. The medical opinion is that her condition is permanent and will continue
to degenerate with the passage of time, with only a remote chance of marginal and temporary
improvement. Taking the medical opinion in its totality, the only conclusion that is available is
that the Accused is unable and will likely remain unable to stand trial. It would be an erosion of
her rights to detain her in a hospital or any other facility on the hypothesis that her condition is
likely to improve. I am therefore of the opinion that any form of detention would be contrary to
the evidence, to common sense, and to the fair trial rights of the Accused. The accused should be
released without conditions.’.
108SCC Decision on Appeal of Ieng Thirith Release, supra note 105, § 49.
109Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care, Principle 11(2).

(e.g. in the case of a mentally unfit accused), a court may decide to impose a plan
of treatment recommended by a physician where the proposed treatment is in the
best interest of the patient’s health needs. Likewise a court-appointed guardian
may consent on the patient’s behalf. The European Court of Human Rights has
held in this regard that a court authorising treatment of patients in psychiatric
facilities must be satisfied that medical necessity has been shown to exist. It held,
‘The established principles of medicine are admittedly in principle decisive in
such cases; as a general rule, a measure which is a therapeutic necessity cannot be
regarded as inhuman or degrading.’110 Medical ethics also impose restrictions on
such treatment. The American Medical Association has stated, for example,
‘Physicians can ethically participate in court-initiated medical treatments only if
the procedure being mandated is therapeutically efficacious and is therefore
undoubtedly not a form of punishment or solely a mechanism of social control.’111
The U.S. Supreme Court has also made several rulings in this regard. In Sell v.
United States, the court held that
the [US] Constitution permits the government involuntarily to administer antipsychotic
drugs to a mentally ill defendant facing serious criminal charges in order to render that
defendant competent to stand trial, but only if the treatment is medically appropriate, is
substantially unlikely to have side effects that may undermine the fairness of trial, and,
taking account of less intrusive alternatives, is necessary significantly to further important
governmental trial-related interests.112
A related question is whether, in the process of this court-imposed treatment,

the continued detention of the Accused is justified. In another decision, later cited
with approval by the ECCC Supreme Court Chamber, the U.S. Supreme Court
held that a person could not be institutionalised longer than ‘a reasonable period of
time necessary to determine whether there is a substantial probability that he will
attain that capacity in the foreseeable future.’113
17.4.2.4 Treatment of Ieng Thirith
In the case of Ieng Thirith, neither the ECCC Trial Chamber nor the Supreme
Court Chamber evaluated whether cognitive stimulation therapy or the Alzheimer’s
medication was therapeutically required. Nonetheless, the Geriatrician proposed
the treatment and the Psychiatric Experts did not oppose it.
110Herczegfalvy v. Austria, ECHR (10533/83), 24 September 1992, § 82.

111American Medical Association (Council on Ethical and Judicial Affairs), ‘Opinion 2.065’,
available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
ethics/opinion2065.page (visited 15 June 2015); see also G. J. Annas, ‘Forcible Medication for
Courtroom Competence—The Case of Charles Sell’, 350 N Engl. J. Med. (27 May 2004), at 2297.
112Sell v. United States, 539 U.S. 166, 179 (2003).
113Jackson v. Indiana, 406 U.S. 715, 738 (1972).
482 R.L. Phillips
While the Supreme Court Chamber was considering the appeal of Ieng
Thirith’s release, there was an attempt to administer the drug Donepezil to her. She
did not tolerate the medication and suffered from vomiting, a recognised side-
effect of the drug.114 The court-appointed experts recommended an alternative
drug (administered by an arm patch, rather than orally) and the Accused was re-
examined 6 months thereafter. The experts determined that the therapy and medi-
cation had not improved her cognitive abilities and that, in fact, her situation had
further deteriorated.115 She experienced hallucinations and was unaware that she
suffered from incontinence. She denied having children and no longer recognized
her husband, Ieng Sary. The Trial Chamber therefore reaffirmed its prior conclu-
sion that she was unfit to stand trial and stayed the proceedings against her indefi-
nitely, meaning that ‘the stay of proceedings shall continue until and unless the
Chamber orders their resumption against the Accused.’116
This time the Trial Chamber was unanimous in holding that immediate and
unconditional release of the accused was required. It stated, ‘Whilst acknowledging
the seriousness of the charges in the Closing Order, the Trial Chamber considers
Ieng Thirith’s pre-trial detention of over 4 years 10 months, if continued on the
entirely hypothetical basis of a potential trial, would violate these basic rights.’117 It
further found that there was no legal basis for judicial supervision because there was
no reasonable prospect of her being tried and that the Trial Chamber could therefore
no longer exercise its jurisdiction over her.118 It also reasoned that it would be illog-
ical to impose judicial supervision on the Accused, the violation of which would
result in the imposition of sanctions (including possibly imprisonment) where the
Accused was unable to understand such requirements and possible charges.
The saga was not over as the Co-Prosecutors again filed an immediate appeal of
the Trial Chamber Decision. On 15 September 2012, the Phnom Penh Municipal
Court119 appointed the Accused’s daughter, a physician, to be her legal guard-
ian.120 Two days later, on 17 September 2012, the Supreme Court Chamber per-
mitted the release of Ieng Thirith, but imposed reporting conditions on her, and
permitted the appeal on the conditions for release to continue.121
114Decision on Reassessment of Accused Iéng Thirith’s Fitness to Stand Trial Following Supreme Court
Chamber Decision of 13 December 2011, Nuon Chea and others (002/19-09-2007/ECCC-E138/1/10),

Trial Chamber, 13 September 2012, Fn. 70 (‘Decision on Ieng Thirith Reassessment’).
115Decision on Ieng Thirith Reassessment, supra note 114, § 11.
119As part of the Cambodian legal system, the ECCC had to consider rulings of the national
courts. Furthermore, the ECCC had not jurisdiction over the Cambodian Civil Code which gov-
erns matters of legal guardianship.
120Decision of the Phnom Penh Municipal Court (E138/1/10/1/2/3.1), 14 September 2012.
121Decision on Co-Prosecutors’ Request to File Supplementary Submissions on the Appeal
Against the Release Order of Ieng Thirith, Nuon Chea and others (002/19-09-2007/ECCC-
E138/1/10/1/3/1), Supreme Court Chamber, 17 September 2012, § 2.
On 14 December 2012, the Supreme Court Chamber issued the full reasons for
its decision to impose judicial supervision on the Accused.122 It noted:
The question of how to deal with accused unlikely to ever become fit to stand trial is,
indeed, complex. It creates a tension between the fundamental rights of the accused on the
one hand (e.g. to be presumed innocent and to be tried within a reasonable time, as well
as the rights to liberty and privacy) and the interests of justice on the other hand (e.g. in
prosecuting the accused for serious crimes), including the interests of the victims to have
the truth ascertained and pursue their civil claims.
The Supreme Court Chamber proceeded to examine how courts in dozens of

jurisdictions addressed such a situation. The legal justification of continued judi-
cial supervision in the situation where an accused has no likelihood of becoming
fit to stand trial was determined by the Supreme Court Chamber to depend upon
the necessity and proportionality of the measures.123 It noted the seriousness of the
charges and the possibility that medical science could ascertain new treatments in
the future that might improve the accused’s condition.124 Whilst acknowledging
that there was only a minimal prospect of a trial, it nonetheless considered that
judicial supervision was necessary in order to monitor the Accused’s condition.125
The Supreme Court Chamber also agreed that Ieng Thirith was incapable of
responding to charges of violating judicial supervision. It noted that a guardian
had been appointed for the Accused by the Phnom Penh Municipal Court and that
the Guardian had agreed, on questioning of the Supreme Court Chamber, to under-
take to assist her mother in responding to court summonses.126 The Supreme
Court Chamber therefore imposed judicial supervision on the Accused with
requirements that she not leave the country without prior approval, hand over her
passport and identification card, undergo monthly security checks and submit to
six-monthly medical examinations.
Subsequent medical reports indicated that Ieng Thirith’s condition was not
improving. In 2014, her guardian sought and was granted leave to travel with Ieng
Thirith to Thailand for medical treatment. Although it was reported that she was
only feeding through a tube, she eventually regained some measure of health and
survived through the delivery of the judgment for the remaining Accused Nuon
Chea and Khieu Samphan on 7 August 2014.127
122Decision on Immediate Appeal Against the Trial Chamber’s Order to Unconditionally Release
the Accused Ieng Thirith, Nuon Chea and others (002/19-09-2007/ECCC-E138/1/10/1/5/7),

Supreme Court Chamber, 14 December 2012 (‘SCC Decision on Appeal of Unconditional
Release’).
123SCC Decision on Appeal of Unconditional Release, supra note 122, § 57.
124SCC Decision on Appeal of Unconditional Release, supra note 122, § 59–60.
125SCC Decision on Appeal of Unconditional Release, supra note 122, § 60.
126SCC Decision on Appeal of Unconditional Release, supra note 122, § 63–64.
127S. Cheang, ‘Ieng Thirith Dependent on Feeding Tube’, Phnom Penh Post, 23 May 2014;
S. Cheang, ‘Ieng Thirith on the Mend: son-in-law’, Phnom Penh Post, 5 August 2014.
484 R.L. Phillips
17.5 Physical Fitness to Stand Trial
Perhaps because of certain accommodations made available by Internal Rule 81(5)

and the provision of the holding cell facilities, the physical health of the Accused
was not directly relevant to their meaningful participation as often as could have
been expected. Nonetheless, the significant physical ailments afflicting the Accused
was a basis for a more nuanced argument that their physical ailments affected
their ability to concentrate during the proceedings. This is a mixed issue involving
aspects of physical and mental health. The rules did not directly address the ability
of the Accused to concentrate when ostensibly participating from the comfort of
the holding cell. Therefore, the Chamber would have to address each scenario on a
case by case basis.
17.5.1 Nuon Chea
Nuon Chea was the eldest of the Case 002 Accused, aged 81 at the time of his
arrest.128 During the first part of Case 002 (Case 002/01), his Defence submitted
that he was not able to concentrate for sufficiently long periods of time to stand
trial.
Prior to the beginning of the trial in Case 002, the Geriatrician performed an
assessment of Nuon Chea to which his defence objected, announcing its intent to
request the appointment of an additional expert to carry out an additional examina-
tion of Nuon Chea’s cognitive functions.129 The Geriatrician found that there was
no evidence of impaired cognition that would affect Nuon Chea’s ability to under-
stand the proceedings, instruct counsel, understand questions and the charges
against him, respond appropriately and concentrate during the hearing.130
Importantly, his short term and long term memory were intact, but the Geriatrician
recommended that each trial session last no more than 1.5 h before a break to
accommodate the Accused’s ability to concentrate.131 The Defence argued that the
length of the examinations did not fully test the Accused’s ability to concentrate
and that certain other tests should have been administered. The Geriatrician did
acknowledge that the ability to concentrate is difficult to assess objectively.132
Nuon Chea had experienced a stroke nearly 10 years earlier and the Defence
128Closing Order, Nuon Chea and others (002-09-2007/ECCC-E427), Co-Investigating Judges,
15 September 2010, § 1577.


130Nuon Chea Fitness Decision, supra note 36, § 24.
asserted that the effects of this event were not properly assessed.133 For this rea-
son, it requested the appointment of an additional expert which was denied by the
Trial Chamber.
Nuon Chea’s physical health deteriorated during the course of Case 002. In
January 2013, he was hospitalised and diagnosed with acute bronchitis and hypo-
tonia in both legs. He was released subject to a mandatory two-week period of
convalescence. He was again hospitalised with hypertension and drowsiness in
February 2013, later hospital reports indicating he experienced coughing and
extreme fatigue. He also complained that it was difficult to concentrate due to fre-
quent bouts of dizziness. Following these two incidents, the Trial Chamber again
ordered that his fitness to stand trial be assessed, including by a psychiatrist.134
The appointed experts found that the Accused was frail. They concluded that
the Accused’s complaint of dizziness was due principally to a feeling of insecurity
when standing, but may also have been brought on due to his blurring of vision
when reading due to his cataracts.135 They also found a gradual decline in his
memory, but concluded that this was normal considering his age and that it did not
affect his capacities to plead and stand trial.136
The crucial assessment occurs in § 25 of the Decision. The Trial Chamber
acknowledges the Defence argument that the Accused lacked concentration and
often slept during the proceedings while resting in the holding cell. The Chamber
nonetheless noted the Experts’ view that the Accused did not suffer from any sig-
nificant concentration or attention problems and that he was able to concentrate for
up to two hours at a time, as determined by the length of interviews conducted
during their examinations. The Chamber therefore found him fit to stand trial.137
At the outset of trial, Nuon Chea provided lengthy evidence, also submitting to
questioning by the Chamber and parties. However, he spent much of the trial in a
holding cell beneath the Courtroom observing the proceedings by audio-visual
link from a hospital-style bed. During the Chambers pronouncement of the judg-
ment, when the Accused are normally asked to stand, Nuon Chea was permitted to
remain seated due to his frail health.138
Prior to the commencement of Case 002/02, the fitness of Nuon Chea was
again assessed. The Defence argument was tempered somewhat, in that they now
asserted that his current medical ailments limited the length of time in which he

134Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E256/5), Trial Chamber, 2 April 2013, § 9 (‘Second Nuon Chea Fitness
Decision’).
135Second Nuon Chea Fitness Decision, supra note 134, § 17.

486 R.L. Phillips
could concentrate.139 He had received cataract surgery and was otherwise slightly
better off than when he had previously been examined. He was found fit as Case
002/02 was set to go to trial.140
17.5.2 Ieng Sary
On 19 January 2011, Ieng Sary filed a motion for the trial to be conducted through
half-day sessions, his age and ill-health allegedly preventing him from sitting in
the courtroom for an extended period of time.141 The Chamber later ruled that it
would sit for about 5 h per day, with no session longer than 1.5 h. The Chamber
also ordered the assessment of Ieng Sary’s fitness. The Geriatrician found him fit
to stand trial and Ieng Sary chose not to contest the expert’s findings.142 During
the course of the trial, however, his physical condition worsened and he contested
his ability to maintain concentration due to a number of physical ailments, includ-
ing heart and respiratory problems. After a series of medical incidents in 2012,
some requiring his hospitalisation, the Trial Chamber scheduled an assessment of
Ieng Sary’s fitness to stand trial in November 2012.
The Geriatrician concluded that Ieng Sary remained fit to stand trial, but that he
required a greater level of care than he had previously received as his condition
had recently worsened.143 (It is noteworthy that this time frame corresponds with
the release of his wife, Ieng Thirith, from the detention facility where the two had
heretofore resided together.) The Geriatrician recommended that he participate in
the proceedings from the holding cell at all times. This meant that he would not
observe any of the proceedings in person, only by audio visual means.
At this time, Ieng Sary suffered from very significant maladies. As noted by the
Chamber:
The Accused’s inactivity and muscle wastage contribute to his increased weakness and
frailty. His cardiac condition and overall frailty result in on-going shortness of breath,
while osteoarthritis of the lower spine results in back pain. Cardiovascular conditions,
vertigo, and medications may, individually or collectively, cause dizziness and unsteadi-
ness. These side-effects may also be triggered by sitting for long periods, dehydration or
over-heating.
139Response to Trial Chamber's Request for Submissions Concerning Nuon Chea's Fitness
Review, Nuon Chea and others (002/19-09-2007/ECCC-E301/7), Nuon Chea Defence, 15
January 2014, §§ 7, 9.
140Decision on Fitness of the Accused Nuon Chea to Stand Trial, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E301/11), Trial Chamber, 25 April 2014.

141Ieng Sary’s Motion to conduct the trial through half-day sessions, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E20), Ieng Sary Defence, 19 January 2011.

142Scheduling Order for Preliminary Hearing on Fitness to Stand Trial, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E110), Trial Chamber, 11 August 2011, at 2.

143Ieng Sary Fitness Decision, supra note 17, § 12.
The court-appointed experts acknowledged that Ieng Sary’s physical condition

may reduce his ability to concentrate. Nonetheless, the Chamber noted the consist-
ent findings of the experts that the impact of these physical ailments is not such as
to render him incapable of participating effectively in his own defence.144
The Ieng Sary Defence moved the Chamber to reconsider its decision which
was denied for failure to set forth any new circumstances.145 The Chamber did
however grant the alternative request to order daily medical reports of the
Accused.146 The defence continued to contest the fitness of Ieng Sary to stand
trial, asserting a right to create a record of his unfitness by video-recording the
Accused in the holding cell during the proceedings to establish his unfitness on
appeal.147 The Chamber considered the Accused did not have such a right and that
the daily medical record was legally sufficient.148
Ieng Sary’s health again took a turn for the worse and on 14 March 2013,
nearly one year and one half prior to the delivery of the judgment in the case, he
died.149 This had the effect of terminating all criminal and civil actions against
him.150
17.5.3 Khieu Samphan
Khieu Samphan requires only a footnote in this chapter as he was the healthiest of
the Accused throughout the proceedings. He was reticent to make any argument
about his fitness to stand trial, despite being hospitalised on several occasions dur-
ing the proceedings for respiratory and other problems. Nonetheless, late in the
trial in 2014, and despite his insistence that he was currently in good health, the
Trial Chamber ordered a fitness examination of Khieu Samphan in light of his
argument that he tired easily and his attention span was no longer sufficient to
144Ieng Sary Fitness Decision, supra note 17, §§ 28–29.

145Decision on Ieng Sary’s Request for Reconsideration of the Trial Chamber Decision on
the Accused’s Fitness to Stand Trial and Supplementary Request, Nuon Chea and others
(002/19-09-2007/ECCC-E238/11/1), Trial Chamber, 19 December 2012.
146Ibid.
147Ieng Sary’s Submissions on the Law Permitting Him to be Audio and/or Video Recorded in
the Holding
Cell, Nuon Chea and others (002/19-09-2007/ECCC-E254/1), Ieng Sary Defence, 14 December
2012, §§ 7–8.
148Ibid.
149Certificate of Death of Ieng Sary, Nuon Chea and others (002/19-09-2007/ECCC-E270),
14 March 2013.
150Termination of the Proceedings Against the Accused Ieng Sary, Nuon Chea and others
(002/19-09-2007/ECCC-E270/1), Trial Chamber, 14 March 2013.

488 R.L. Phillips
follow trial hearings for the established four-day trial schedule.151 He was found
fit to stand trial during the established four-day hearing schedule.152
17.6 Conclusion
At the time of writing, Trial and Supreme Court Chambers had issued 13 full
decisions on the fitness of the Accused to stand trial in Case 002, not including the
numerous procedural memoranda, decisions, and hundreds of e-mails necessary to
address the challenges arising from a trial of elderly accused. The stakes were very
high as the determination of fitness could, and in one case did, serve as a barrier to
prosecution. Nonetheless, it was of paramount importance that the ECCC
Chambers properly evaluate all of the necessary criteria to ensure only fit accused
were brought to trial.153
Despite the considerable pressure to bring all the Case 002 Accused to trial,
there were important principles of fundamental human rights that emerged and
could be incorporated by the broader Cambodian Judiciary. First, an Accused must
be capable of meaningful participation in the proceedings in order to be brought to
trial. Second, where there is a doubt as to the appropriate conclusion in a criminal
trial, it must be resolved in favour of the Accused.
The ECCC Chambers may have lost the opportunity to clarify two other issues.
In the event that an Accused is unfit to stand trial, when is it permissible to admin-
ister treatments to render them fit? Although the medical experts recommending
treatment for Ieng Thirith likely considered whether the medications were thera-
peutic, it would have been helpful if there were an explicit court finding that such
treatments were beneficial to the Accused in addition to the fact that such could
render the Accused fit to stand trial. In addition, the imposition of judicial supervi-
sion on an Accused incapable of understanding the limitations could lead to some
inappropriate outcomes in the Cambodian judiciary if seised upon and expanded.
That said, the conditions of judicial supervision imposed on Ieng Thirith were rel-
atively limited.
The seemingly interminable litigation on the fate of Ieng Thirith was not a
model for efficiency. Nonetheless, it did have the benefit of airing a discussion on
mental health in a country where there remains superstition and frequent mistreat-
ment of mentally ill individuals.154 In that sense, it may have had a benefit in
bringing some understanding of mental illness to the general public. Of course, it
151Decision on Accused’s Fitness to Stand Trial and Order Assigning Experts, Nuon Chea and
others (002/19-09-2007/ECCC-E301/10), Trial Chamber, 17 February 2014, § 8.
152Khieu Samphan Fitness Decision, supra note 36.
154McLaughlin and Wickeri 2012.
may be questioned whether a criminal trial is the proper venue for educating the
public on such topics.
Finally, the fact that the national judges of the Trial Chamber reached a differ-
ent conclusion from their counterparts on the Supreme Court Chamber contradicts
the suggestion that all judicial outcomes are preordained at the ECCC due to gov-
ernmental interference. If such interference were at play, one would have expected
all Cambodian judges to reach the same conclusions in each case, particularly on
such an important decision as to whether an Accused could be brought to trial.
The overriding lesson from these proceedings on fitness is that courts of law
must respect the fundamental rights of the Accused in a criminal trial. No matter
the public or political pressure (both international and national) to achieve convic-
tions, only a criminal proceeding that fully respects the rule of law can serve the
interests of justice.
References
Boister N, Cryer R (2008) The Tokyo International Military Tribunal, 1st edn. Oxford University
Press, Oxford
McLaughlin D, Wickeri E (2012) Mental Health and Human Rights in Cambodia. Fordham
Pritchard RJ (1995) The International Military Tribunal for the Far East and its Contemporary
Resonances. Military Law Review 149:25–35
Pritchard RJ (1998) The Tokyo Major War Crimes Trial: The Judgment, Separate Opinions,
Proceedings in Chambers, Appeals and Reviews of the International Military Tribunal for the
Far East, Vol. 101. Edwin Mellen Press, New York
Smith T (1951) Mental Abnormality and Responsibility in International Criminal Law.
Transactions of the Grotius Society 37:99–125
Totani Y (2009) The Tokyo War Crimes Trial, 1st edn. Harvard University Press, Cambridge
Chapter 18
The Admission of Torture Statements
into Evidence
Tobias Thienel
Abstract The ECCC are bound by their mandate to comply fully with domestic
and international standards of the rule of law. This entails that, even though the
ECCC must engage with a setting in which torture was rife, they must not admit
into evidence any statements established to have been made as a result of torture.
The case law of the ECCC has been mindful of this principle. In this chapter, the
relevant case law of the ECCC will be presented and assessed. It will be shown
that the case law of the ECCC is in line with the international discussion, but that
some questions remain open to further discussion, in the ECCC as in international
law more generally.
Keywords Torture · Burden of proof · Inhuman and degrading treatment ·

Admissibility of evidence · Necessity
The author is Attorney-at-Law at Weissleder Ewer in Kiel, Germany.
Contents
18.1 Introduction........................................................................................................................ 490
18.2 ECCC Case Law on the Exclusionary Rule....................................................................... 491
18.3 Article 15 of the CAT and Its Qualification....................................................................... 494
18.4 The Question of ‘Lead Evidence’...................................................................................... 497
T. Thienel (*)
Weissleder Ewer, Kiel, Germany
e-mail: tobiasthienel@gmail.com

DOI 10.1007/978-94-6265-105-0_18
492 T. Thienel
18.5 The Burden of Proof with Respect to Torture.................................................................... 499

18.6 Inhuman and Degrading Treatment and Article 15 of the CAT......................................... 501
18.7 An Unresolved Question: The Admissibility of Exonerating Evidence............................ 504
18.8 Concluding Remarks on the ECCC and Article 15 of the CAT......................................... 508
References................................................................................................................................... 511
18.1 Introduction
‘Torture is an unqualified evil.’1 The use of evidence obtained by torture ‘corrupts

and degrades the legal system’.2 It is therefore of critical importance to the rule of
law that torture should not only not occur, but that where it has occurred, the
courts should set their face against the use of evidence tainted by torture in judicial
proceedings.3
The integrity of the Cambodian legal system in which the ECCC operate is not
at present compromised by the acts of torture relevant before the ECCC. These
acts of torture were committed under the regime of the Khmer Rouge, and the
mission of the ECCC is not to condone or accept the results, but rather to handle
the prosecution of those responsible.4 However, it is the responsibility of the
ECCC to ensure that evidence obtained by torture at the time of the alleged
offences is not admitted into evidence in their proceedings. This chapter will
examine the case law of the ECCC with regard to the exclusion of evidence
obtained by torture. The chapter will discuss whether the case law of the ECCC is
consonant with international human rights law and whether the ECCC have led
advances in the learning on the exclusionary rule.
It will be convenient to start by presenting the practice of the ECCC in this
regard. Section 18.2 will therefore recount what the ECCC has held, while the
following sections of this chapter will discuss specific aspects of the decisions.
Section 18.3 will consider the breadth of the qualification of the exclusion-
ary rule allowing for the admission of torture statements against the torturers.
Section 18.4 will then assess a further qualification regarding the use of statements
obtained by torture as mere ‘lead evidence’, as opposed to evidence adduced at
trial. Section 18.5 will address the indications given by the ECCC as to the bur-
den of proof with regard to the provenance of statements from acts of torture, and
Sect. 18.6 will comment on the limited allusions by the ECCC to the definition
of torture, as relevant to the exclusionary rule. Finally, Sect. 18.7 will consider
the admissibility of Defence evidence under the exclusionary rule, an issue that,
at the time of this writing, is before the ECCC but has not yet been determined.
1A and Others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2
AC 221, § 160 (Lord Brown).

2Ibid., § 82 (Lord Hoffmann).
3On the relevance of the exclusionary rule to the rule of law, see ibid., § 167 (Lord Brown).
4See Articles 3(1), 5(2) and 6 ECCC Law.
18 The Admission of Torture Statements into Evidence 493
Section 18.8 will, in conclusion, assess the application of the exclusionary rule in

the particular circumstances facing the ECCC.
18.2 ECCC Case Law on the Exclusionary Rule
The case law of the ECCC on the exclusion of evidence obtained by torture cen-
tres on an Order of 28 July 2009 made by the Co-Investigating Judges (CIJ).
There, the Defence for Ieng Thirith requested that the CIJ
(a) treat as inadmissible any evidence or other material which was or may have
been obtained by use of torture, other than to show that a certain statement
was made under torture and solely against the torturer,
(b) refrain from using such statements in any other way than set out above,
including their use as ‘lead evidence’ or the use of any secondary sources/
experts opinions based thereon.5
The Defence based its request primarily on Article 15 of the UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT).6 There was also some argument on Cambodian constitutional law, but this
was not picked up upon by the CIJ. Rather, the Order proceeded on the basis that
the ECCC were entitled and required to refer to ‘relevant rules of procedure at the
international level’ to fill any lacunae in Cambodian law or determine the compati-
bility of the latter with international standards.7 This chapter will likewise focus
on Article 15 of the CAT. The article provides:
Each State party shall ensure that any statement which is established to have been made
as a result of torture shall not be invoked as evidence in any proceedings, except against a
person accused of torture as evidence that the statement was made.
The CIJ observed at the outset that the debate between the Defence and the
Co-Prosecutors as to who bore the burden of proof was ‘not as important at the
ECCC as it is in other international criminal tribunals operating according to com-
mon law procedure, given the active role of the CIJ in the search for and assess-
ment of evidence’.8 The Order did not subsequently return to the issue of the
burden of proof.
5This form of the Defence request is taken from the Order on Use of Statements which were or
may have been Obtained by Torture, Nuon Chea and others (002/19-09-2007/ECCC-D130/8),
Co-Investigating Judges, 28 July 2009, § 1. The Defence Request for Exclusion of Evidence
Obtained by Torture, Nuon Chea and others (002/19-09-2007/ECCC-D130), 11 February
2009, § 56 and the Defence Reply to the Co-Prosecutors’ Response to Ieng Thirith’s Defence
Request for Exclusion of Evidence Obtained by Torture, Nuon Chea and others (002/19-09-2007/
ECCC-D130/6), 18 May 2009, § 46, contained somewhat different language.
61465 UNTS 85 (1984) (hereafter CAT).
7Order, Nuon Chea and others, supra note 5, § 17.
494 T. Thienel
As to the substance of the question of admissibility, the CIJ began by noting

that some of the impugned evidence had not in fact been obtained by torture, and
had thus not been ‘established to have been made as a result of torture’ within the
meaning of Article 15 of the CAT. This was true of notes made by the torturers and
of biographical data collected at the arrival of the prisoners at the Tuol Sleng or
S-21 torture facility, well in advance of any acts of torture. However, the CIJ
added, the fact that some of this information might have been given under compul-
sion or duress not amounting to torture would have to be considered in ascribing
probative weight to the evidence.9
The Order also addressed the let-out clause from Article 15 of the CAT, under
which statements established to have been made as a result of torture could be
adduced ‘against a person accused of torture as evidence that the statement was
made’. The CIJ rejected entirely what they perceived to be a Defence argument to
the effect that this covered only proceedings for the direct commission of an act of
torture, but not trials for participation in a joint criminal enterprise or superior
responsibility in relation to torture. It is questionable whether the Defence had
really made this argument. At least in the passage that is cited for this argument in
the Order, the Defence actually appears to criticize the view that other modes of
responsibility are covered not by disputing this point as such, but by positing that
statements obtained by torture could certainly not be used for the truth of their con-
tents.10 Either way, the CIJ saw fit to address the argument—as the Co-Prosecutors
had done before.11 Like them, the CIJ considered that the term ‘torturer’ encom-
passed modes of responsibility other than the direct commission of torture itself.12
The CIJ further held that the object and purpose of Article 15 of the CAT did
not favour excluding any torture statements from the trials for torture in the
ECCC. The object and purpose of the article was twofold: to deter would-be tor-
turers by refusing legal recognition to the fruits of torture, and to avoid the unrelia-
bility inherent in torture statements.13 The former purpose would not be served by
allowing those accused of torture to profit from the inadmissibility of evidence.14
The latter purpose, in turn, would not be relevant if such statements were used
merely as ‘lead evidence’ pointing to other sources, without ascribing to them any
reliability.15
9Ibid.,§ 19.
10Defence Request, Nuon Chea and others, supra note 5, § 45, cited in Order, Nuon Chea and
others, supra note 5, § 22.
11Co-Prosecutors’ Response to Ieng Thirith’s Defence Request for Exclusion of Evidence
Obtained by Torture, Nuon Chea and others (002/19-09-2007/ECCC-D130/5), 30 April 2009,

§§ 30−32. The Defence Reply, supra note 5, § 35, briefly adverted to the issue of command
responsibility and joint criminal enterprise, but again only stressed the rule in Article 15 of the
CAT that a torture statement could only be used ‘as evidence that the statement was made’.
13Ibid., § 23.
14Ibid., § 24.
15Ibid., §§ 25−26.
By contrast, the CIJ confirmed that the unreliability of torture statements gener-
ally forbade the use of such statements for the truth of their contents. More contro-
versially, the CIJ added that it was not possible ‘at this stage to affirm that no
element of truth can ever be found in [such] confessions’.16 This was disapproved
by the Pre-Trial Chamber (PTC) when the Order of the CIJ was appealed. The
PTC stressed, following a then recent holding in the Trial Chamber (TC), that
[t]he relevance of [torture statements] is limited to the fact that they were made and,
where appropriate, constitute evidence that they were made under torture [, and that]
[t]hey are not admitted for the truth of their contents.17
The PTC added that ‘[t]here is no room for a determination of the truth or for
use otherwise of any statement obtained through torture’.18 The TC reaffirmed this
in its judgment of 7 August 2014 in Nuon Chea and Khieu Samphan.19
The Defence of Nuon Chea appealed against the judgment, impugning also the
holding of the TC in relation to the admissibility of torture statements.20 The
appeal is pending before the Supreme Court Chamber (SCC).21 The reasons given
by the Defence in relation to the admissibility of torture statements were repeated
in an application for a reasoned decision of the TC in Case 002/02, relating to a
direction by the TC as to the conduct of the trial.22
16Ibid.,§ 28.
17Decision on the Admissibility of the Appeal against Co-Investigating Judges’ Order on
Use of Statements which were or may have been Obtained by Torture, Nuon Chea and others
(002/19-09-2007/ECCC-D130/9/21), Pre-Trial Chamber, 18 December 2009, § 29, quoting ver-
batim Decision on Parties’ Requests to Put Certain Materials before the Chamber pursuant to
Internal Rule 87(2), Kaing Guek Eav (Duch) (001/18-7-2007/ECCC-E176), Trial Chamber, 28
October 2009, § 8. The PTC issued identical decisions in the other cases.
18Decision, Nuon Chea and others, supra note 17, § 30.
19Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), Trial Chamber, 7 August 2014,
§ 35, referencing Decision, Kaing Guek Eav (Duch), supra note 17 and Trial Chamber Response
to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management
Meeting of 5 April 2011, Nuon Chea and others (002/19-09-2007/ECCC-E74), Trial Chamber, 8
April 2011, at 3, which in turn referenced, inter alia, the Transcript of Trial Proceedings, Kaing
Guek Eav (Duch) (001/18-7-2007/ECCC-E1/27.1), Trial Chamber, 28 May 2009, at 9.
20Notice of Appeal against the Judgment in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E313/1/1), 29 September 2014, § 5, Ground 36. The appeal by the

Defence of Khieu Samphan does not raise any similar grounds of appeal: see Déclaration d’appel
de la Défense de M. Khieu Samphan contre le jugement rendu dans le procès 002/01, Nuon
Chea and others (002/19-09-2007/ECCC-E313/2/1), 29 September 2014; Mémoire d’appel de
la Défense de M. Khieu Samphan contre le jugement rendu dans le procès 002/01, Nuon Chea
and others (002/19-09-2007/ECCC-F17), 29 December 2014. Neither does the appeal by the
Co-Prosecutors; see Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01, Nuon Chea
and Others (002/19-09-2007/ECCC-E313/3/1), 29 September 2014, § 2.
21See Nuon Chea’s Appeal against the Judgment in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-F16), 29 December 2014, §§ 706−722; Co-Prosecutors’ Response to

Case 002/01 Appeals, Nuon Chea and others (002/19-09-2007/ECCC-F17/1), 24 April 2015, § 6.
22Nuon Chea’s Submissions regarding the Use of ‘Torture-Tainted Evidence’ in the Case 002/02
Trial, Nuon Chea and others (002/19-09-2007/ECCC-E350), §§ 4, 13−28.

496 T. Thienel
18.3 Article 15 of the CAT and Its Qualification
The ECCC have accepted in principle that statements obtained by torture are not
admissible before them, thereby following Article 15 of the CAT. Whether this
was accepted on the basis that torture statements are inadmissible even if the tor-
turer had been a foreign entity, or whether the ECCC regarded the acts of torture
as in a sense ‘domestic’ in relation to them, is not entirely clear from the decisions.
The CIJ noted that none of the organs of the ECCC had been responsible for the
acts of torture,23 but it is far from certain that the international legal personality of
the ECCC is distinct from that of the Kingdom of Cambodia24 to which the acts of
torture were and remain attributable. However, this does not affect the result,
because the inadmissibility of torture statements attaches to the products of for-
eign torture just as it does to domestic cases of torture.25
The discussion of Article 15 of the CAT in the ECCC centred on the qualifica-
tion that the article makes to the rule of inadmissibility. This allows the use of tor-
ture statements ‘against a person accused of torture as evidence that the statement
was made’. The CIJ found it untenable to suppose that the ‘torturer’ in this sense
was only the direct perpetrator of an act of torture, to the exclusion of his superiors
or those who had instigated the offence.26 This argument is persuasive, because
the object and purpose of the qualification to Article 15, which is to discourage
torture by allowing torture statements to be adduced as evidence for the offender’s
intention to interrogate, does not support an interpretation in favour of those who
had tortured by proxy, as it were. It is indeed
equally, if not more important, to deter those who are higher in the chain of command and
are responsible for the policies of torture implemented by the direct perpetrators.27
There is also some support for the CIJ’s interpretation in the drafting history,
inasmuch as an earlier proposal for the qualification introduced by the United
States had spoken of proceedings ‘against a person accused of having obtained
such statement by torture’.28 Such language could more readily have been inter-
23Order, Nuon Chea and others, supra note 5, § 17 and § 24 note 30.
24Contra Scharf 2008, at 152, note 114. The ECCC were established by a Cambodian statute
‘in the existing court structure’ (Article 2 new ECCC Law). They apply Cambodian law, subject
to international human rights law (see Article 12(1) ECCC Agreement and Article 23(1) ECCC
Law). Special status and immunities attach only to persons on the ECCC, not to the ECCC itself
(Articles 41−42 of the ECCC Law). On the other hand, the ECCC were established pursuant to
the ECCC Agreement with the UN, and their expenses are shared between Cambodia and the UN.
25A and Others, supra note 1, § 35 (Lord Bingham); Hanseatisches Oberlandesgericht Hamburg
(Regional Court of Appeal of Hamburg), El Motassadeq, Order of 14 June 2005, in 58 Neue

Juristische Wochenschrift (2005) 2326−2330, at 2326; Ambos 2009, at 380; Pattenden 2006, at
10, 12; Thienel 2006b, at 360; contra Scharf 2008, at 152−155.
27Ibid.
28Summary Prepared by the Secretary-General, UN Doc. E/CN.4/1314, 19 December 1978, § 86,
at 18.
preted as referring to the specific act of torture as opposed to the crime generally.
This language was dropped, though admittedly for reasons that remain unclear.29
Moreover, even the wording of Article 15 of the CAT should be accepted as
supporting an interpretation under which instigators of torture and the superiors of
torturers are ‘torturer[s]’. A ‘torturer’ may on a natural understanding of the phrase
be someone having committed (or committing) acts of torture.30 However, the
word ‘torturer’ may equally, and particularly on an understanding adapted to the
criminal law context, denote someone ‘guilty of torture’.31 In criminal procedure,
this obviously should be adapted to ‘accused of torture’, as the accused at trial is
still presumed innocent. Against this background, someone accused of instigating
torture or accused of torture under the model of command responsibility is
patently also a person ‘accused of torture’ and hence a ‘torturer’ within the mean-
ing of the CAT,32 because instigation and command responsibility under
Article 29(1) and (3) of the ECCC Law are modes of individual responsibility, not
separate offences.33 The offence charged in each case is torture (or the crime
against humanity of torture). Moreover, instigation, command responsibility and
direct perpetration, as well as some other modes of responsibility, are generally of
equal effect. Direct perpetration of torture is no more and instigation of torture is
no less ‘torture’ than any other way of committing the offence. The charged per-
sons at the ECCC are therefore accused of torture and thus qualify as ‘torturer[s]’
under the procedural rule of Article 15 of the CAT.
The question remains to what extent torture statements can be adduced as evi-
dence in the proceedings against a charged person as a ‘torturer’ within the meaning
of Article 15 of the CAT. In this—and only in this34—respect, the CIJ held that tor-
29See infra note 40.

30Surprisingly, in an article aimed at reading down the effect of Article 15, Professor Scharf
accepts this narrow interpretation of the word ‘torturer’, excluding the charged persons before the
ECCC from the let-out clause: Scharf 2008, at 159.
31It is true that Article 31(1) and (4) Vienna Convention on the Law of Treaties (1155 UNTS
331—hereafter VCLT) privileges the ordinary meaning of a word over any special meaning.
However, it is submitted that even the ordinary meaning of the word ‘torturer’ supports the inter-
pretation suggested here. Moreover, the criminal law context should be enough to support a spe-
cial meaning under Article 31(4) VCLT.
32See also the Application of Amnesty International, ‘The International Commission of Jurists
and the Redress Trust to Present an amicus curiae Submission Pursuant to Internal Rule 33’,
§§ 9−13, at 4−5, available at http://www.amnesty.org/en/library/info/ASA23/020/2009/en (vis-
ited 15 June 2015).
33Conspiracy in the common law sense would be a separate offence, in that it would not require
proof of the actual commission of acts of torture. However, the offence of conspiracy is not
in this sense accepted in international criminal law (cf. Hamdan v. Rumsfeld 548 U.S. 557,
603−612 (plurality opinion)). Conspiracy to commit genocide is an exception both in the ECCC
Law and in general international law, except at the ICC; see Schabas 2008, at 155.
34It is worth stressing that the CIJ did not generally deny that torture statements were not to be
assessed for the truth of their contents. Their statement came only in the context of the reliability
aspect of the object and purpose behind Article 15 CAT. It was therefore only relevant on the
basis that the deterrence aspect of the object and purpose had been respected by using the state-
ments only against the torturers.
498 T. Thienel
ture statements were not necessarily unreliable and that the CIJ reserved the power
to assess the reliability of such statements with the utmost caution.35 The PTC and
the TC disagreed.36 Indeed, the attitude of the CIJ disregards the second element of
the qualification in Article 15 of the CAT, which is that torture statements can only
be used, even against the torturers, ‘as evidence that the statement was made’.
Contrary to an indication by the PTC,37 the drafting history of this phrase is not
particularly revealing. The phrase was inserted by the Working Group at its ses-
sion in February 1980, when the Group was working from a revised Swedish draft,
which contained a clause on the use of torture statements against torturers,38 but
no further qualification as to how those statements could be used.39 There appears
to be no relevant record of the reasons for adding the qualification as it now
appears in Article 15.40 However, the wording of Article 15 of the CAT is reasona-
bly clear. It addresses the reliability issue with regard to torture statements by rul-
ing out any judicial use of such statements for their hearsay content,41 i.e. for their
truth rather than the fact of their having been made. Article 15 thus prescribes the
one and only way in which torture statements may be admitted into evidence,
allowing an exception for the improved deterrence of torture, but no exception
from the inadmissibility of such statements on the grounds of their general, intrin-
sic unreliability.42 It is not open to a court applying Article 15 to second-guess the
article and conduct its own assessment of whether the concern of unreliability is
valid in a given case or not. The PTC and the TC were therefore right to insist that
statements obtained by torture can never be assessed for the truth of their contents
but can only be adduced to prove that they were made.43

36See the text supra, at notes 17 through 19.
37Decision, Nuon Chea and others, supra note 17, § 30 note 33.
38Inserted at the proposal of Austria and the United States, see UN Doc. E/CN.4/1314, supra
note 28, §§ 85−86, at 18.

39See Report of the Working Group on a Draft Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, UN Doc. E/CN.4/1367, 5 March 1980,

§§ 82−84, at 14−15.
40Ingelse 2001, at 366. It is only recorded (UN Doc. E/CN.4/1367, supra note 39, § 83, at 15)
that some changes to the revised Swedish draft were proposed to achieve uniformity between
the convention and Article 12 of the Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res.
3452 (XXX), 9 December 1975. However, that declaration had contained no qualification to the
exclusionary rule at all.
41Pattenden 2006, at 6. As to the related question of the admissibility of torture statements
adduced by the Defence, see infra, Sect. 18.7.

42Methodologically, this is not even a case of expressio unius est exclusio alterius (contra Scharf
2008, at 159). This maxim of interpretation means that where one thing is expressed, the exclu-
sion of another is implied. Here, the exclusion of all statements not covered by the clause begin-
ning with ‘except’ is quite express. To describe this as a case of the application of expressio unius
is to understate the strength of the argument.
43See also Burgers and Danelius 1988, at 148.
18.4 The Question of ‘Lead Evidence’
The CIJ further held that the unreliability of torture statements was not relevant if
the statements were used only as ‘lead evidence’ in the course of the investiga-
tion,44 as leading to other sources of information which in turn might be adduced
at trial. This point is unaffected by the true position, as stated by the PTC and the
TC, that torture statements can never be assessed for their truth. The use of torture
statements as ‘lead evidence’ does not involve determining the truth of the content
of such statements.45 Indeed, the use of ‘lead evidence’ in the investigation does
not involve the admission of evidence at all, and therefore does not raise the issue
of admissibility. Even the function of the CIJ is not to admit evidence. Internal
Rule 87, Internal Rule 80(4) and the particular ground of inadmissibility in
Internal Rule 21(3)(2) all assign this function to the Trial Chamber. Indeed,
material on the case file is not ‘evidence’ as such until it is produced in court in accord-
ance with Rule 87(2). Whilst any material on the case file may be produced before the
Trial Chamber, the Trial Chamber may reject it as evidence on the criteria listed in
Rule 87(3).46
‘Lead evidence’ is therefore not directly addressed by the rule of inadmissibility

in Article 15 of the CAT.47 It might, however, be caught indirectly. If the ‘fruit of
the poisonous tree’ doctrine applies to render inadmissible any pieces of evidence
found pursuant to statements obtained by torture, it will be important not to use
statements obtained by torture even as ‘lead evidence’, because they would infect
all resulting evidence with inadmissibility. Whether the ‘fruit of the poisonous
tree’ doctrine applies under Article 15 of the CAT remains a contentious question.
Some scholars take the view that it does.48 The UN Committee against Torture has
shared this view, but only in comments on State reports,49 in which context the
treaty bodies tend to offer more opinions and recommendations than are strictly

45Ibid.
46Decision on Admissibility of Material on the Case File as Evidence, Kaing Guek Eav (Duch)
(001/18-7-2007/ECCC-E43/4), Trial Chamber, 26 May 2009, § 6, partly adopted in Decision,

Kaing Guek Eav (Duch), supra note 17, § 2.
47The rule also does not apply to the executive: Ambos 2009, at 379 note 93; Thienel 2006a, at
406; contra Pollard 2005, at 358−359.

48Ambos 2009, at 380. Nowak and McArthur 2008, at 504, 530, 536, are somewhat unclear in
that they use the phrase ‘fruit of the poisonous tree’, but sometimes in relation only to state-
ments (ibid., 530, 536). Pattenden 2006, at 8−10, 41, collects some official sources in sup-
port of the doctrine, but—contrary to a Defence submission to the Trial Chamber (Ieng
Sary’s Motion against the Use of Torture Tainted Evidence at Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E33), 4 February 2011, § 20)—does not ultimately support the view.
49See the sources assembled by Pattenden 2006, at 9, and adopted in Ieng Sary’s Motion, supra
note 48, § 20, note 55. In the individual communication case of G.K. v. Switzerland, UN Doc.
CAT/C/30/D/219/2002, 7 May 2003, the Committee appears to have been silent as to the author’s
‘fruit of the poisonous tree’ argument (contra Pattenden 2006, ibid.).
500 T. Thienel
law under the respective conventions.50 The European Court of Human Rights
(ECtHR) has also applied the ‘fruit of the poisonous tree’ doctrine where a state-
ment disclosing further pieces of (real) evidence had been obtained by torture, but
the ECtHR is not as strict if the underlying ill-treatment had amounted only to
inhuman and degrading treatment.51 Its case law refers, of course, to Article 6
ECHR,52 but it is influenced by Article 15 of the CAT.53 As to Article 15 itself,
however, the German Federal Court of Justice has recently held that the article did
not ban the use of evidence found as a result of statements obtained by torture; in
the briefest of holdings, the court noted that neither the wording nor the practice of
States parties supported such a rule.54
Indeed, the wording of Article 15 of the CAT does not lend much support to a
‘fruit of the poisonous tree’ rule. It refers to statements obtained by torture,
whereas ‘fruit of the poisonous tree’ may also be—and often are—pieces of real
evidence.55 Furthermore, the article requires a direct link between the ‘statements’
and an act of torture in demanding that the statements be ‘established to have been
made as a result of torture’. This might be read in a broader sense as including not
only statements made under torture, but also statements made as a more remote
consequence of earlier acts of torture and preceding statements. However, the
more natural meaning of the words is clearly the narrower one.56 Moreover, while
it is true that the purpose of Article 15 to contribute to the deterrence of torture
would be better served if the ‘fruit of the poisonous tree’ rule applied,57 it should
not necessarily be expected that Article 15 has taken this object and purpose to its
ultimate logical conclusion. Rather, Article 15 may have struck a balance between
the deterrence of torture and the exclusion of inherently unreliable evidence on the
one hand and the admissibility of evidence.58 The history of Article 15 suggests
that this is what the States parties have done. An early draft submitted by the
50Cf. Nowak 2005, at 731.

51See Jalloh v. Germany, ECtHR RJD 2006-IX, §§ 99−102, 105−108; Gäfgen v. Germany,
ECtHR RJD 2010-IV, §§ 165−167, 173−188. See also Grabenwarter 2010, at 3131; Meyer
2015, at 202.
52213 UNTS 221 (1950) (hereafter ECHR).
53See Jalloh, supra note 51, § 105.
54Bundesgerichtshof (Federal Court of Justice), Case No. 3 StR 573/09, Order of 14 September
2010, in 64 Neue Juristische Wochenschrift (2011) 1523−1525, at 1524; on the practice of States
parties, see also Gäfgen, supra note 51, §§ 69, 73−74, 174.
55Pattenden 2006, at 9. Judge Zupančič appears to miss this argument in his concurring opin-
ion in Jalloh, supra note 51, at his note 7, when he draws from the wording of Article 15 that
‘no insubstantial distinction is made [in the article] between verbal and non-verbal evidence’. He
highlights instead the words ‘as evidence’, but these are qualified by the word ‘statements’.
56Pattenden 2006, at 8.
57Ibid., at 8−9; Ambos 2009, at 380; Ieng Sary’s Motion, supra note 48, § 20.
58While the right to a fair trial is absolute, what constitutes unfairness may be left to a balancing
exercise: R. v. A (No. 2) [2001] UKHL 25, [2002] 1 AC 45, § 38 (Lord Steyn); Secretary of State
for the Home Department v. MB [2007] UKHL 46, [2008] 1 AC 440, §§ 29−32 (Lord Bingham).
International Association of Penal Law advocated the exclusion of ‘[a]ny oral or

written statement or confession obtained by means of torture or any other evi-
dence derived therefrom’.59 The omission of such language from Article 15 of the
CAT is unlikely to have been a mere oversight,60 all the more so since the draft
submitted by the International Association of Penal Law was supported by Austria
and referenced by the United States.61 It is therefore at least defensible if the CIJ
have implicitly held that the ‘fruit of the poisonous tree’ doctrine did not apply,
thus permitting the use torture statements as ‘lead evidence’ and the admission of
the pieces of evidence to which this leads into evidence at trial.62
18.5 The Burden of Proof with Respect to Torture
The CIJ dealt rather briefly with the submissions of the Defence and the
Co-Prosecutors regarding the burden of proof on the question whether statements
had actually been obtained by torture. The CIJ only noted that the burden of proof
was not as important to proceedings at the ECCC as it is to other international
criminal proceedings, arguing that the CIJ have an inquisitorial function
themselves.63
It should be noted that this observation by the CIJ only relates to the formal
burden, or the burden of producing evidence.64 Generally, the term ‘burden of
proof’ can have at least two meanings65: it can describe the formal burden of pro-
ducing evidence, under which each party is responsible for making its own eviden-
tiary case without any additional investigations by the court itself. Alternatively,
the term ‘burden of proof’ can refer to the ‘substantive’ or ‘legal’ burden of proof.
This burden determines which party loses on a given point if the truth of a submis-
sion cannot be established to the applicable standard of proof.
In the ECCC, it is true to say that there is no burden of producing evidence,
because the ECCC may use information that has not been submitted by the parties.
In the same sense, the ECtHR has held that it ‘will not rely on the concept that the
burden of proof is borne by one or other of the [parties]’ but that it may obtain
59Draft Convention for the Prevention and Suppression of Torture, Submitted by the International
Association of Penal Law, UN Doc. E/CN.4/NGO/213, 15 January 1978, Article VII; also noted
by Pattenden 2006, at 9.
60Pattenden 2006, at 9.
61UN Doc. E/CN.4/1314, supra note 28, §§ 85−86, at 18.
62See also Pattenden 2006, at 41, noting that the United Kingdom probably would not ‘incur
global opprobrium’ if it failed to apply the ‘fruit of the poisonous tree’ doctrine in relation to
Article 15 of the CAT.
63Order, Nuon Chea and others, supra note 5, § 16. See supra, Section 2.
64So did the observations of the present author, kindly cited by the CIJ: Thienel 2006b, at 354.
65For the following distinction, see Thienel 2007, at 545−549.
502 T. Thienel
material proprio motu.66 However, the Defence and the Co-Prosecutors had not
debated the burden of proof in this sense in the proceedings before the CIJ. They
were divided as to the ‘legal’ burden on the question of whether torture had
occurred.67 This burden is generally applicable in all proceedings in which one
side stands to lose and another stands to win. It even applies in criminal proceed-
ings where the prosecution is impartial, because once the prosecution has taken a
position on a given point, it does in this sense stand to win or lose.68 The ‘legal’
burden thus applies to the question whether a statement had been obtained by tor-
ture. This burden is another way of expressing the question whether it has to be
proved that a statement had been obtained by torture, or whether it has to be
shown that it had not been so obtained. It may be said that the CIJ missed or
glossed over this question of the burden of proof. They certainly did not discuss
the question under the rubric of the burden of proof. In substance, they suggested
that the ‘legal’ burden lay on the Defence, inasmuch as they held that Article 15 of
the CAT ‘applies only to evidence which has been established to have been “made
as a result of torture.”’69 But in this holding, they emphasized not the word ‘estab-
lished’, but the words ‘made as a result of torture’. The CIJ then found that some
statements had not in fact been obtained by torture, thus declining to decide the
question on the burden of proof. Their understanding of the ‘legal’ burden of proof
therefore remains somewhat unclear.
The House of Lords in A and Others v. Secretary of State for the Home
Department (No. 2) was divided on the incidence of this burden, the majority of
four Lords of Appeal in Ordinary placing it on the person challenging a piece of
evidence70 and the minority of three preferring the view that it had to be shown
that a statement had not been obtained by torture.71 The Hanseatic Court of
66Ireland v. United Kingdom, ECtHR (1978) Series A, No. 25, § 160; Artico v. Italy, ECtHR
(1980) Series A, No. 37, § 30.
67See Defence Request, Nuon Chea and others, supra note 5, §§ 10, 26; Co-Prosecutors’
Response, Nuon Chea and others, supra note 11, § 27; Defence Reply, Nuon Chea and oth-
ers, supra note 5, § 25. In fact, their discussion of the burden of proof may not have related so
much to the question of fact of whether ill-treatment had occurred, but to the question of law
of whether such treatment had constituted torture. This is not actually a matter of the burden of
proof at all; see Thienel 2007, at 556−557.
68Thienel 2007, at 548−549.
70A and Others, supra note 1, § 118 (Lord Hope), § 138 (Lord Rodger), § 158 (Lord Carswell),
§ 172 (Lord Brown). For this characterisation of the issue, see also RB (Algeria) v. Secretary of
State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, § 202 (Lord Hoffmann).
The fact that this burden was to be discharged by proof on the balance of probabilities is due to
the simple fact that this is the general civil standard of proof (and the criminal standard of proof
for burdens on the defence) in English law. This, therefore, involves no relaxation of the gen-
eral standards on account of the difficulties of proving torture (possibly contra Ambos 2009, at
395−396).
71A and Others, supra note 1, § 56 (Lord Bingham), § 80 (Lord Nicholls), § 98 (Lord Hoffmann).
Appeal (Oberlandesgericht) of Hamburg had earlier placed the burden of proof on

the person challenging the admissibility of a statement.72 This, the court and the
majority of the House of Lords held, was required by the language in Article 15 of
the CAT under which a statement is inadmissible if it is ‘established to have been
made as a result of torture’.73 More recently, however, the ECtHR has taken a sim-
ilar view to the minority opinion in A and Others (No. 2), holding that a statement
must be excluded if there remains a real risk that it might have been obtained by
torture, i.e. if it has not been proved that the statement had not been obtained by
torture.74 This holding by the ECtHR first came in an expulsion case, in which a
‘real risk’ test applies anyway,75 but it was repeated in a more recent case on the
domestic use of statements of doubtful (foreign) provenance.76 This ‘real risk’ test
may be doubted under the language of Article 15 of the CAT, but might conceiva-
bly be justified on the basis that the word ‘established’ is neutral as to the standard
applied in establishing something.77
If the CIJ have indeed applied a test under which the provenance of a statement
from a torture had to be ‘established’, this test has since been thrown into doubt.
However, it seems more likely that the CIJ have taken no position on the ‘legal’
burden of proof at all.
18.6 Inhuman and Degrading Treatment and Article 15

of the CAT
The CIJ did not as such have occasion to pass on definition of torture. They noted,
however, that some
information may have been obtained in circumstances which, while they may not rise to
the level of torture, may suggest that it was not obtained freely (e.g. people knew that they
were about to the subjected to torture).78
72El Motassadeq, supra note 25, at 2328.

73Ibid.;A and Others, supra note 1, § 121 (Lord Hope); see also ibid., § 145 (Lord Rodger) and
§ 172 (Lord Brown), as well as the concessions by Lord Bingham, ibid., § 58, and Ambos 2009,
at 396.
74Ambos 2009, at 394−396; Nowak and McArthur 2008, supra note 45, at 534, and Pattenden
2006, at 25, 26−27, had earlier arrived at the same view.

75Othman (Abu Qatada) v. United Kingdom, ECtHR RJD 2012-I, §§ 185, 273−280.
76El Haski v. Belgium (ECtHR, 25 September 2012, summary in (2013) 56 EHRR 31), § 88.
77Cf. In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 576 (Lord Lloyd)
(HL); R (N) v. Mental Health Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB
468, § 99 (Richards LJ). A contrary argument would be that the test in El Haski does not relate to
a standard of proof, but to whether something has to be ‘established’ at all.
504 T. Thienel
The CIJ found that information so obtained was not covered by Article 15 of
the CAT,79 thus implying that the justified expectation of torture did not itself
amount to torture. This is in accordance with the case law of the ECtHR, which to
date has considered the threat of torture as itself amounting only to inhuman or
degrading treatment.80 It may be noted, however, that this holding depended not
only on the kind of treatment at issue, but also on the court’s judgment that the
police officers responsible had not been acting on base motives or maliciously but
with the intention to save a boy’s life.81 Such factors may not be present in every
case in which acts clearly amounting to torture were threatened. Moreover, there is
an issue as to whether the exclusionary rule of Article 15 of the CAT applies only
to torture or also to statements made under inhuman or degrading treatment. The
wording of the article expressly refers only to torture, and Article 16, which
extends the scope of a (non-exhaustive) list of articles of the Convention to inhu-
man or degrading treatment, does not include Article 15 in that list. Indeed,
Article 15 was specifically dropped from Article 16 during the drafting of the
Convention.82 The clear implication is that Article 15 of the CAT has no applica-
tion to statements obtained by ill-treatment other than torture.83
However, the Committee against Torture has occasionally suggested that inhu-
man or degrading treatment came within the field of application of Article 15.84
Case law under the ECHR likewise has shown that the use of statements obtained
by inhuman or degrading treatment may violate the right to a fair trial.85 The his-
tory of Article 16 makes this a more difficult argument under the CAT.86 However,
the true position in relation to inhuman and degrading treatment under the Torture
Convention may lie in the definition of torture. On a commonly held view origi-
nating from the case law of the ECtHR, the difference between torture and inhu-
man and degrading treatment lies in the gravity of the ill-treatment.87 The
difference thus is a matter of degree and is not a difference in kind. On a
79Ibid.
80Gäfgen, supra note 51, §§ 101−108; see also Scharf 2008, at 141−143.
81Ibid., §§ 101, 107.
82Pattenden 2006, at 8; see Commission on Human Rights, Report on the Thirty-sixth Session, 4
February-14 March 1980, UN Doc. E/1980/13 = E/CN.4/1408, §§ 94−96, at 67−68; Report on

the Thirty-seventh Session, 2 February−13 March 1981, UN Doc. E/1981/25 = E/CN.4/1475,
§ 46, at 62.
83See Burgers and Danelius 1988, at 148; Ingelse 2001, at 366.
84See Ingelse 2001, at 381−382; Nowak and McArthur 2008, at 535; Pattenden 2006, at 8.
85See supra note 51. The exclusionary rule with respect to inhuman and degrading treatment is
not, however, coextensive with that in relation to torture as far as the admissibility of resulting
real evidence is concerned (see ibid.).
86The reasons for deleting Article 15 from the list in Article 16 are not clear from the travaux
préparatoires (see supra note 82). Ingelse 2001, at 366, as well as Nowak and McArthur 2008, at
534, suggest that this was only due to a lack of agreement, not to any agreement that Article 15
should not apply to inhuman or degrading treatment.
87See Ireland, supra note 66, § 167; Scharf 2008, at 141.
competing view sometimes alluded to by the Committee against Torture,88 by con-

trast, the difference between torture and inhuman and degrading treatment lies in
the purpose of the ill-treatment.89 On this view, there is only one common thresh-
old of suffering under the concepts of torture or of inhuman or degrading treat-
ment. Any ill-treatment crossing this threshold will constitute torture if it has been
inflicted with the purpose to interrogate and elicit statements.90 Thus, statements
are highly unlikely ever to be made as a result of inhuman or degrading treatment.
For instance, while squalid conditions of detention may well cross the threshold of
inhuman or degrading treatment,91 a person held in such conditions is hardly
likely to blurt out incriminating details unless doing so meets the purposes of his
or her captors and thus raises the possibility that the ill-treatment might stop.
The wording of Articles 1 and 16 of the CAT does not necessarily suggest this
purpose-based test of torture. The phrase ‘other acts’92 in Article 16, combined
with the fact that the purposes from Article 1 (except punishment, which may dou-
ble as a purpose and a type of treatment) do not reappear in Article 16, might be
taken to modify particularly the requirement of a specific purpose set out in
Article 1. This tends to support the purpose-based test. But Article 16 may also be
said to support the degree-based test inasmuch as it speaks of inhuman or degrad-
ing treatment ‘not amount[ing] to torture’.93 The verb ‘amount’ suggests a differ-
ence in degree more than one in kind. Quite apart from the wording, however, it is
submitted that Article 15 of the CAT makes more sense on the purpose-based test.
According to this test, statements to be put into evidence will only ever (highly
unusual circumstances aside) arise from torture, and Article 15 will take effect.
However, if the degree-based test is applied, statements may well arise as a result
of inhuman or degrading treatment and these might be admissible under
Article 15. This would be difficult to justify as a matter of principle. The prohibi-
tion of inhuman or degrading treatment is just as absolute as that of torture and
therefore ought to call for the same treatment by the law of evidence.94
88Some cases derive the designation of an act as torture solely from the wording of Article 1
of the CAT: Dragan Dimitrijević v. Serbia and Montenegro, UN Doc. CAT/C/33/D/207/2002,

24 November 2004, § 5.3; Jovica Dimitrov v. Serbia and Montenegro, UN Doc. CAT/
C/34/D/171/2000, 3 May 2005, § 7.1. This is correct if the purposes in Article 1 make an act
inflicting severe suffering torture, but not if the degree of suffering must yet be examined to dis-
tinguish torture from inhuman or degrading treatment.
89See Nowak and McArthur 2008, at 74−75, 535. Gäfgen, supra note 51, § 90, notes the pur-
pose-based test as an additional criterion to that of the degree of suffering inflicted.

90Cf. Nowak and McArthur 2008, at 535.
91See e.g. Kalashnikov v. Russia, ECtHR RJD 2002-VI, § 95.
92Emphasis added.
93Emphasis added.
94This point is underlined by the fact that the case law of European Court of Human Rights does
not distinguish between the inadmissibility of statements taken by torture and that of statements
taken by inhuman or degrading treatment. The argument is slightly weakened, however, by the
curious distinction between the two concepts in the same case law with respect to the ‘fruit of the
poisonous tree’ doctrine (see supra note 51).
506 T. Thienel
If this is accepted, the practical result will in all probability be that treatment
which on the degree-based test might be regarded as inhuman or degrading treat-
ment will actually constitute torture if it was designed to and did occasion state-
ments. This seems a safer and arguably more principled way of treating such cases
than simply announcing the application of Article 15 of the CAT to inhuman or
degrading treatment as such. On both of these views, however, statements brought
about by a threat of torture will be inadmissible. The CIJ appear not to have con-
sidered this.
18.7 An Unresolved Question: The Admissibility

of Exonerating Evidence
Another question remains pending before the SCC and the TC. The Defence for
Nuon Chea has submitted in its appeal against the Judgment in Case 002/01 and in
an application before the TC that inadmissibility under Article 15 of the CAT can
only ever arise with respect to incriminating evidence led by the Co-Prosecutors,
but that evidence led by the Defence could never be inadmissible. This submission
was directed specifically against the conclusion by the TC (and the PTC) that evi-
dence obtained by torture could never be used for the truth of its contents.95
The Defence for Nuon Chea argued that the object and purpose of Article 15 of
the CAT only required that law enforcement could not gain from the use of tor-
ture.96 Moreover, it was argued that the State practice of Cambodia, New Zealand,
Germany, and the United Kingdom in relation to their domestic exclusionary rules
suggested that the exclusionary rule under Article 15 of the CAT did not apply to
Defence evidence.97 The Co-Prosecutors countered that Article 15 of the CAT
should apply both on the grounds of the unreliability of statements obtained by
torture and on the basis of the deterrence aspect of its object and purpose.98
The Defence argument is not entirely accurate and reliable in its discussion of
the attitude of domestic legal orders to the admissibility of exonerating evidence.
In German law, the clearly preponderant view is that evidence obtained by
95See Notice of Appeal, Nuon Chea and others, supra note 20, § 5, Ground 36; Appeal, Nuon
Chea and others, supra note 21, § 706.

96Appeal, Nuon Chea and others, supra note 21, §§ 710−712.
97Ibid., §§ 714−716; see also ibid., § 721, regarding the law of Canada, Denmark, Greece, and
Austria.
98Co-Prosecutors’ Submission regarding the Application of the Torture Convention to S-21
Confessions and Other Records relating to Interrogations of Prisoners, Nuon Chea and others
(002/19-09-2007/ECCC/E350/1), 21 May 2015, § 19. The Co-Prosecutors did not make (or
have not yet made) such submissions before the SCC, presumably because—as the Defence has
admitted (Appeal, Nuon Chea and others, supra note 21, § 707)—the Judgment in Case 002/01
did not rely on any holding in this regard and the appeal therefore presumably cannot turn on this
issue.
deception, exhaustion, ill-treatment or cruelty (which need not rise to the level of
torture) is always inadmissible, regardless of whether it is incriminating or exoner-
ating evidence.99 The Federal Court of Justice has subscribed to this view, merely
leaving open the question whether cases are conceivable in which exonerating evi-
dence might nevertheless be admissible on the grounds that the accused could not
otherwise mount any effective defence.100 Even in leaving this question unde-
cided, the court has thus expressed itself very cautiously indeed. Moreover, the
proviso cautiously considered by the court clearly does not amount to any general
admissibility of exonerating evidence, nor even to the admissibility of exonerating
evidence that the defence says it needs to adduce. Instead, admissibility under this
proviso would, in any case, be a matter for the court, which would assess the cen-
trality of the relevant piece of evidence to the defence case.101
This creates some difficulty for the argument of the Defence drawn from subse-
quent State practice. The subsequent practice of the parties is only relevant as
establishing ‘the agreement of the parties regarding the interpretation of the treaty’
(Article 31(3)(c) VCLT).102 Accordingly, even though not all parties need to have
exhibited the practice in question, the practice under consideration must at least
demonstrate the ‘tacit assent of the parties generally’.103 This is rather difficult to
argue if the practice itself is not uniform. Moreover, the nature of the practice sub-
mitted by the Defence creates some problems: being domestic law, it is unclear
whether any other parties were in any position to assent or decline to assent to the
view taken of the exclusionary rule. Indeed, it is just as unclear whether the
99El Motassadeq, supra note 25, at 2329; Gleß 2007, at 623; Rogall 2010b, at 1378; Schmitt
2014, at 653. The same is true of some other rules of inadmissibility, such as the inadmissibil-
ity under Section 252 of the Code of Criminal Procedure (Strafprozessordnung) of the written
record of a statement by a close relative of the accused who has since withdrawn the statement:
see Bundesverfassungsgericht (Federal Constitutional Court), Case No. 2 BvR 1337/03, Order
of 25 September 2003, in 9 Neue Zeitschrift für Strafrecht—Rechtsprechungsreport (2004), at
18−19; Bundesgerichtshof (Federal Court of Justice), Case No. 4 StR 616/99, Judgment of 10
February 2000, in 46 Entscheidungen des Bundesgerichtshofs in Strafsachen (2001), at 1 et seq.
None of this is entirely undisputed; for the most prominent dissenting view, see Roxin, Schäfer
and Widmaier 2006, at 656 et seq.
100Bundesgerichtshof (Federal Court of Justice), Case No. 3 StR 45/08, Order of 5 August 2008,
in 29 Strafverteidiger (2009), at 113.

101That is also the position under some English and Canadian case law, which the Defence
appears to have presented in more absolute terms (Appeal, Nuon Chea and others, supra note 21,
§ 721). Under this case law, evidence may be ruled admissible despite ‘informer privilege’ (i.e.
the rule against the identification of police informers, which exists in the public interest) only if
‘the judge should be of opinion that the disclosure of the name of the informant is necessary or
right in order to shew the prisoner's innocence’: Marks v. Beyfus (1890) QBD 494, 498 (Lord
Esher MR), approved by the Supreme Court of Canada in Bisaillon v. Keable [1983] 2 SCR 60,
at 90, 93.
102See also Kasikili/Sedudu Island (1999) ICJ Reports 1045, at 1075−1077.
103Sixth Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur,
Yearbook of the International Law Commission 1966, II, 51−103, at 99; see also Dörr 2012, at
557, 559.
508 T. Thienel
domestic practice in question constituted practice ‘under the [t]reaty’104 at all.

That would only be the case if the legislatures having made the provisions in ques-
tion or the courts having created the relevant precedents had had some subjective
sense that they were acting within the scope of Article 15 of the CAT.105 That does
not appear to have been the case.106 Accordingly, the domestic sources cited by the
Defence do not, even insofar as they actually do lend support to the Defence case,
amount to any subsequent practice of the States parties to the CAT establishing
their agreement regarding the interpretation of the treaty. They may prove that the
rule contended for by the Defence would be workable and that there is something
to be said for such a rule. They do not, however, carry interpretative authority.
As a matter of principle, the Defence case is premised on the view that exoner-
ating evidence must never be taken out of the picture for the court, because to con-
vict an innocent person would be to fail in the overriding duty of any criminal
trial. However, the decision on the guilt or innocence of the accused must be taken
in a lawfully structured judicial procedure. All evidence, including exonerating
evidence, must therefore be entered into the proceedings by the operation of rules
of law. These rules may be at the disposal of the accused, because they exist for
his or her protection, but they may also exist in the public interest or in the inter-
ests of others. In the latter cases, evidence may be withheld from the proceedings
even against the wishes of the accused.107
In the case of Article 15 of the CAT, the victims of torture have an obvious
interest in the inadmissibility of their statements. Because the victims were forced
to make their statements under torture, the inadmissibility of such statements for
any aspect other than their mere existence restores the freedom of the victims not
to be brutalised into testifying.108 The absolute exclusionary rule thus restores the
autonomy and the dignity of the victims of the past acts of torture. Where the vic-
tims are still alive, the exclusionary rule thus exists in their interests. If they are no
longer alive, this interest in restoring the dignity of the victims becomes a matter
of the public interest. In either case, the interests behind the exclusionary rule are
quite irrespective of the content or effect of the statements. Moreover, those
104Competence of the ILO to Regulate Agricultural Labour (1922) PCIJ Series B Nos. 2 & 3, at 39.
105See Dörr 2012, at 556−557.
106This is a general problem in human rights law, because this relates to the relationship between
the State and individuals, which is governed primarily by domestic law. Accordingly, subse-
quent State practice within the meaning of Article 31(3)(b) VCLT does not play a great role in
human rights law (but see Loizidou v. Turkey (Preliminary Objections), ECtHR (1995) Series A,
No. 310, §§ 73, 79; Mamatkulov and Askarov v. Turkey, ECtHR RJD 2005-I, §§ 144, 157;
Hassan v. United Kingdom, ECtHR, 16 September 2014, § 101). The ECtHR often looks for a
‘European consensus’ among States parties to the ECHR, but this is not an interpretation under
Article 31(3)(b) VCLT. It is specific to the ‘living instrument’ approach of the ECtHR and against
that background does not look for practice under the Convention, but for a consensus as to the
issue.
107On this and the foregoing, see Rogall 2010a, at 1315.
108Cf. Ambos 2009, at 388−389: ‘the use of torture evidence would re-victimize the torture vic-
tim again attacking her dignity’.

interests in either case carry very considerable weight, because they derive their
force from the prohibition of torture itself.
In addition, there is an objective public interest in the exclusionary rule. This
relates to the deterrence aspect of the object and purpose of the exclusionary rule.
The Defence has argued that this aspect, or the general object and purpose of the
CAT of eradicating torture, is completely satisfied if the State cannot rely on state-
ments obtained by torture against an accused. However, this is to take a blinkered
view. True it is, admittedly, that only ill-treatment by public officials, at their insti-
gation or with their consent or acquiescence can amount to torture (Article 1(1) of
the CAT). However, who is to say that public officials in alliance with an accused
might not resort to torture (or consent to it) to exonerate him or her, having been
assured that exonerating evidence obtained by torture would be admissible?
Moreover, who is to say that an official of a regime that is shortly to be deposed
might not extract statements for his or her own defence in the courts of the incom-
ing regime? These are certainly not the typical cases. Nor are these cases even
very likely. They do, however, illustrate that the admissibility of exonerating state-
ments under Article 15 of the CAT could not be framed in such a way that the
deterrence aspect of the article would be completely satisfied. This being so, the
deterrence aspect requires that even exonerating evidence is inadmissible. As an
aspect of the public interest, it also justifies the absolute and non-disposable nature
of the exclusionary rule.109
Moreover, the submission that exonerating evidence cannot be inadmissible
under Article 15 of the CAT sits uneasily with the position that Article 15 applies
even to statements obtained by torture abroad.110 This extent of the exclusionary
rule is not plausibly explained by a need to discipline the law enforcement authori-
ties, because it is commonly not for a court to discipline foreign authorities and
the case before the court will not have been brought by the torturer State. Instead,
the rationale of the exclusionary rule with regard to foreign acts of torture must lie
in the interests of the victims, as has just been noted. Another governing interest
will be that the use of evidence obtained by torture would ‘degrade the proceed-
ings and involve the state in moral defilement’.111 Since this would result from the
acceptance of evidence by the court, it is as immaterial who has adduced the evi-
dence as it is immaterial who has committed the underlying acts of torture.
Therefore, the public interest favours the inadmissibility even of exonerating state-
ments that have been obtained by torture.112
Finally, the issue has a special relevance at the ECCC. The accused are charged
with the crime against humanity of torture, including the acts of torture at the Tuol
109This should also take care of any fair trial issues, because the right to a fair trial, including the
right to call and examine witnesses, is open to a balancing exercise; see supra, note 58.
110See supra, note 25.
111A and Others, supra note 1, § 150 (Lord Carswell). See also supra, notes 2 and 3.
112Ambos 2009, at 384, and, as to Article 6 ECHR, Meyer 2015, at 202. Pattenden 2006, at 37,
argues for an exception similar to that considered in Germany; see supra, at note 100.
510 T. Thienel
Sleng or S-21 torture facility. Now, the accused Nuon Chea seeks to adduce state-
ments obtained by torture, and to adduce them for the truth of their contents. To
allow this would indeed ‘encourage and reward the use of torture’.113 The situa-
tion would closely approximate the second hypothetical case described above.
However, the TC cannot rule evidence inadmissible on the grounds that the
accused had committed torture before the accused stands convicted. This follows
from the presumption of innocence, which prevents a court from treating an
accused as guilty before guilt is established.114 There cannot be any ‘reasoning
suggesting that the court regards the accused as guilty’.115 In its assessment of the
admissibility of evidence, the TC presumably would not have to pronounce on the
guilt or innocence of Nuon Chea. It may very well, however, have to pronounce on
elements of the offence, such as on the question whether torture in the legal sense
was used at Tuol Sleng and in the case of the statement at issue. Depending on the
centrality and the contentious nature of such elements, this may already be prob-
lematic. But by the same token, some rulings as to the provenance of a statement
from torture may not raise an issue as to the presumption of innocence. In any
case, however, the issue can be avoided by not holding a common law-type voir
dire on pieces of evidence during the trial, but assessing the admissibility of evi-
dence only in the judgment.116 This would entail that lines of questioning cannot
be prevented during the trial (except in the unproblematic cases just noted), but if
a ‘fruit of the poisonous tree’ is applied, any statements resulting from the use of
torture statements would likewise be disregarded in the judgment.117
18.8 Concluding Remarks on the ECCC and Article 15

of the CAT
Article 15 of the CAT entails that any statements obtained by torture may not
be admitted into evidence, regardless of when and by whom the acts of torture
were committed. The ECCC have recognized this. Their case law has also eventu-
ally recognized the narrow nature of the exception from the exclusionary rule in
Article 15 of the CAT. Even the exception does not allow for the use of torture
statements, in proceedings against persons accused of torture, for their substantive
113Co-Prosecutors’ Submission, supra note 98, § 19.

114Schenk v. Switzerland, ECtHR (1988) Series A, No. 140, § 51; Butkevicius v. Lithuania,
ECtHR RJD 2002-II, § 49.
115Minelli v. Switzerland, ECtHR (1983) Series A, No. 62, § 37; Allenet de Ribemont v. France,
ECtHR (1995) Series A, No. 308, § 35.

116The Co-Prosecutors have requested this, if for other reasons: Co-Prosecutors’ Submission,

117Cf. a question by Judge Fenz: Transcript of Trial Proceedings, Nuon Chea and others (002/19-
09-2007/ECCC/E1/304.1), 25 May 2015, at 14−15.

truth. In this respect, statements obtained by torture are always excluded. Whether
real evidence found as a result of such statements is also excluded remains more
contentious. Inasmuch as the CIJ have—implicitly—held that it is not and that tor-
ture statements may therefore be used as leading to further pieces of evidence, this
holding remains justifiable on authority and principle.
The ECCC have not yet decided whether inadmissibility can apply to exoner-
ating (or other Defence) evidence. It is submitted that they should continue their
strict line as to the use of torture statements for their truth.
The exclusionary rule with respect to torture may put the ECCC in a difficult
position when it comes to their ability to convict some of the charged persons. As
Professor Scharf has noted, much of the case against the leadership of the Khmer
Rouge depends on information derived from the detention and torture centre at
Tuol Sleng.118 On the assumption that such evidence may be inadmissible under
Article 15 of the CAT, Scharf suggests a defence of necessity119 under the general
rule laid down in Article 25 of the ILC Articles on State Responsibility (ASR).120
It is more than doubtful that Article 15 of the CAT is even open to such an argu-
ment of necessity. Article 25(2)(a) of the ASR itself provides that necessity may
not be invoked if the international obligation, the primary rule, in question,
excludes this possibility. This is an instance of the lex specialis of a primary rule
prevailing over or shaping the lex generalis of the secondary rules of State respon-
sibility. Against this background, human rights treaties containing limitation
clauses such as, for instance, Article 8(2) ECHR would surely be understood as
precluding reference to the general rule of necessity where the specific limitations
clauses do not avail the acting State. The same would be true of the unqualified,
absolute provisions in such a general human rights treaty. Certainly, the ECtHR
has never moved on to the doctrine of necessity after finding that there was no jus-
tification under the ECHR itself. The CAT, for its part, contains no limitation
clauses as such. However, this is because it deals with issues in which interna-
tional human rights law accepts no limitations, namely matters of jus cogens such
as the prohibition of torture itself and associated rules such as—for present pur-
poses—the rejection of torture by the rules of judicial evidence and the right to a
fair trial.121 The absence of limitations should therefore be taken as exhaustive of
all possibilities of justification, thus ruling out any recourse to the general rules on
necessity.
This is further supported by the object and purpose of Article 15 of the CAT.
The ILC has noted in its commentary on the ASR that some conventions,
118Scharf 2008, at 132, 136−139.

119Ibid.,
at 147−151.
120Report of the International Law Commission, Fifty-third Session, 23 April–1 June and 2 July–
10 August 2001, UN Doc. A/56/10, at 49.

121On the absolute nature of the right to a fair trial, see supra note 58.
512 T. Thienel
while not explicitly excluding necessity[,] are intended to apply in abnormal situations of
peril for the responsible State and plainly engage its essential interests. In such a case the
non-availability of the plea of necessity emerges clearly from the object and purpose of
the rule.122
Even the most wicked States do not usually resort to torture in criminal (or
other) proceedings unless essential State interests are involved. For instance, tor-
ture is especially used with respect to terrorist threats or offences.123 It is therefore
clear that Article 15 of the CAT is particularly intended to apply where important
interests are at stake and where torture has accordingly been employed. Removing
the binding force of Article 15 of the CAT on the basis that a State is implement-
ing its essential interests would therefore remove much of the field of application
of Article 15 of the CAT. The object and purpose of the article, which is aimed at a
comprehensive exclusionary rule in the service of the deterrence of torture and the
right to a fair trial, would thus be defeated. Accordingly, Article 15 of the CAT
should be interpreted as ruling out any defence of necessity.
On a related note, it should also be realized that Scharf’s argument leads to a
very dangerous slippery slope. If it was accepted that the prosecution of the
Khmer Rouge constitutes an essential interest capable of justifying a departure
from Article 15 of the CAT, interested parties would presumably seek to bring
prosecutions for other serious crimes within the same exception. The road from
liberating the ECCC from the strictures of Article 15 of the CAT to liberating other
international criminal courts, domestic courts prosecuting international crimes and
even domestic courts trying serious domestic offences—most dangerously, per-
haps, terrorism124—is obvious and the distance is hardly enormous. One may
therefore agree with Professor Ambos that Scharf’s proposal ultimately does ‘a
disservice to international criminal justice’.125
The ECCC quite rightly have not adopted Scharf’s proposal. At present, their
application of Article 15 of the CAT has not thwarted any prosecutions. The judg-
ment convicting Kang Guek Eav alias Duch only adverted to the issue in a brief
footnote recording that a statement taken at Tuol Sleng did not support a particular
request for reparations to a civil party. The Trial Chamber affirmed that the admis-
sibility of the Tuol Sleng evidence was ‘questionable’ for the reasons considered
by the CIJ in their Order of 28 July 2009.126 Similarly, the convictions of Nuon
Chea and Khieu Samphan were not prevented by the inadmissibility of statements
obtained by torture, but such inadmissibility was reaffirmed.127 If this causes
122UN Doc. A/56/10, supra note 120, at 205.

123See e.g. Othman, supra note 75, §§ 21, 180.
124This is because there is no general definition of terrorism; see R. v. Gul (Mohammed) [2013]
UKSC 64, [2014] 1 AC 1260, §§ 44−51 (Lord Neuberger and Lord Judge).
125Ambos 2009, at 380.
2010, § 646, note 1086.

127Judgment, Nuon Chea and others, supra note 19, § 35 and passim.
serious problems in the future, this will be regrettable. The consolation for the
ECCC and their wider constituency might be, with an eye on the legacy of the
ECCC, that ‘the rule of law so requires’.128
References
Ambos K (2009) The Transnational Use of Torture Evidence. Israel Law Review 42:362−397
Burgers J, Danelius H (1988) The United Nations Convention against Torture. Martinus Nijhoff,
Dordrecht
Dörr O (2012) Article 31. In: id., Schmalenbach K (eds), Vienna Convention on the Law of
Treaties, A Commentary. Springer, Heidelberg, pp 521−570
Gleß S (2007) § 136a. In: Erb V et al. (eds) Löwe-Rosenberg, Die Strafprozessordnung und
das Gerichtsverfassungsgesetz, Großkommentar, 26th ed., vol. 4. De Gruyter, Berlin,
pp 580−631
Grabenwarter C (2010) Androhung von Folter und faires Strafverfahren—Das (vorläufig) letzte
Wort aus Straßburg. Neue Juristische Wochenschrift 63:3128−3132
Ingelse C (2001) The UN Committee against Torture, An Assessment. Kluwer Law International,
The Hague
Meyer F (2015) Artikel 6. In: Karpenstein U, Mayer F (eds) EMRK, 2nd ed.. C.H. Beck,
Munich, pp 151−240
Nowak M (2005) UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd ed. N.P.
Engel, Kehl
Nowak M, McArthur E (2008) The United Nations Convention against Torture. Oxford
University Press, Oxford
Pattenden R (2006) Admissibility in Criminal Proceedings of Third Party and Real Evidence
Obtained by Methods Prohibited by UNCAT. International Journal of Evidence & Proof
10:1−41
Pollard M (2005) Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained
through Torture by Another State. Netherlands Quarterly of Human Rights 23:349−378
Rogall K (2010a) § 136. In: Wolter J (ed) Systematischer Kommentar zur Strafprozessordnung,
4th ed., vol. II. Heymann, Cologne, pp 1277−1323
Rogall K (2010b) § 136a. Ibid., pp. 1323–1394
Roxin C, Schäfer G, Widmaier G (2006) Die Mühlenteichtheorie—Überlegungen zur
Ambivalenz von Verwertungsverboten. Strafverteidiger 26:655−661
Schabas W (2008) Article 6. In: Triffterer O (ed) Commentary on the Rome Statute of the
International Criminal Court, 2nd edn. C.H. Beck, Munich, pp 143−157
Scharf M (2008) Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?
Washington & Lee Law Review 65:129–172
Schmitt B (2014) § 136a. In: Meyer-Goßner L, Schmitt B (eds) Strafprozessordnung, 57th ed.,
C.H. Beck, Munich, pp 645−655
Thienel T (2006a) Foreign Acts of Torture and the Admissibility of Evidence. Journal of
International Criminal Justice 4:401−409
Thienel T (2006b) The Admissibility of Evidence Obtained by Torture under International Law.
European Journal of International Law 17:349−367
Thienel T (2007) The Burden and Standard of Proof in the European Court of Human Rights.
German Yearbook of International Law 50:543−588
128A and Others, supra note 1, § 167 (Lord Brown).

Chapter 19
Recognizing the Limits of Victims
Participation: A Comparative Examination
of the Victim Participation Schemes at the
ECCC and the ICC
Binxin Zhang
Abstract Victim participation is considered a great innovation of the Rome

Statute, and an improvement from the previous international criminal tribunals
that failed to attend to victims’ needs and interests. This article compares the vic-
tim participation regimes at the ICC and the ECCC. Through this comparative
examination, it detects a common trend towards a more streamlined approach
despite of the fundamental differences between the victim participation regimes at
these two courts. It is then submitted that this trend is unavoidable given the inher-
ent limits of criminal proceedings. Any attempts to refine the victim participation
regime have to take into consideration these limits, and to recognize the fact that
criminal proceedings is not a panacea. It can only be part of the combined efforts
by various mechanisms to truly uphold victims’ rights.
Keywords International criminal procedure · Victim participation · Civil parties ·

Legal representation of victims
Contents
19.1 Introduction........................................................................................................................ 514
19.2 Victim Participation Regimes at the ICC and the ECCC................................................... 515
19.2.1 The Differences Between the Victim Participation Regimes................................. 515
19.2.2 Contextual Backgrounds for the Differences......................................................... 518
19.3 Towards a Common Trend................................................................................................. 520
19.3.1 Civil Party Lead Co-Lawyers at the ECCC........................................................... 521
19.3.2 Common Legal Representation at the ICC............................................................ 523
B. Zhang (*)
Xiamen University Law School, Xiamen, China
e-mail: bxzhang@xmu.edu.cn

DOI 10.1007/978-94-6265-105-0_19
516 B. Zhang
19.4 Recognizing the Limits of Criminal Proceedings.............................................................. 527

19.5 Conclusion......................................................................................................................... 529
References................................................................................................................................... 531
19.1 Introduction
The role of victims has increasingly gained attention in international criminal pro-
ceedings. In its early practice international criminal tribunals did not provide vic-
tims with the right to engage actively in the proceedings. The Nuremburg trials did
not pay much attention to victims, nor did victims have any active role to play in
the proceedings. The well-preserved German documents that predominantly
served as documentary evidence further minimized victims’ involvement in the
proceedings.1 As a result, victims were far from the centre of the search for justice
in Nuremburg. The trials had little influence on the individual victims. As one sur-
vivor of concentration camps recounted, ‘[t]he Nuremberg trials were a distant
happening, important for the abstract concept of international law, but did not
touch us personally then.’2
About half a century later, a ‘new generation’ of international criminal courts—
the UN ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)
took a step further by stipulating clearly in their Statutes and Rules of Procedure
and Evidence (RPE) the protection of victims and witnesses.3 They also developed
outreach programmes with the purpose of improving their accessibility to the
affected communities and local population, including the victims.4 However, in
essence, victims still lacked their own voice in the criminal proceedings, they
could only participate as witnesses, thus somehow ‘pertaining to’ one party, nor-
mally the Prosecution. There was strong criticism of the ad hoc tribunals for their
lack of concerns of victims’ views and interests.5
These criticisms and the increasing call for restorative justice influenced the
drafting and negotiation process of the Rome Statute, promoted the latter’s inclu-
sion of a great innovation of international criminal law: victim participation
regime.6 Later, victim participation system was also adopted by some hybrid tribu-
nals, including the Extraordinary Chambers in the Courts of Cambodia (ECCC).
By its design, the victim participation schemes at the ICC and the ECCC diverge
in many aspects. In practice, both have been rapidly evolving and developing
1Danieli 2006, at 1641.

2Ibid.,at 1643.
3See, e.g., Article 22 ICTY St.; Rules 69, 75 ICTY RPE.
4For ICTY Outreach Programs, see http://www.icty.org/sections/Outreach (visited 15 June 2015).
5See Donat-Cattin 1999, at 871; War Crimes Research Office 2007, at 11–13.
6Women’s Caucus for Gender Justice, Recommendations and Commentary for the Elements of
Crimes and Rules of Procedure and Evidence, Submitted to the Preparatory Commission for the
International Criminal Court (2000), at 20.
19 Recognizing the Limits of Victims Participation … 517
features and mechanisms that were not envisaged by their drafters. Following the
first case of the ECCC, the Duch case or Case 001, the victim participation part
in the ECCC Internal Rules (IRs) went through significant amendments, with les-
sons learned from the Duch trial and with the aim to improve the system for future
trials. At the ICC, the interpretation of the broadly and generally worded Article
68 of the ICC Statute has constantly been developing. Through these developments
that mainly followed practical considerations stemming from the early experience
of victims participation, it now appears that the ICC and the ECCC have more in
common than originally envisaged. Indeed there is a common trend towards a more
streamlined and collective approach with respect to victim participation.
This chapter will first briefly examine the differences of the victim participa-
tion regimes at the ICC and the ECCC (Sect. 19.2). It then seeks to demonstrate
that both are moving towards a more streamlined approach (Sect. 19.3), and ana-
lyze the reason behind this common trend by pointing out the primary purpose
and inherent limits of criminal proceedings (Sect. 19.4). This article concludes by
urging for a need to recognize these limits and asserting that better protection and
realization of victims’ rights may not necessarily rest with broadening their role in
the criminal proceedings, but might well be sought outside such proceedings.
19.2 Victim Participation Regimes at the ICC

and the ECCC
The victim participation regimes at the ICC and the ECCC diverge in many
aspects. The most fundamental difference is that victims participate as a ‘party’ to
the entire proceedings at the ECCC. At the ICC, on the other hand, victims are not
a party, but only ‘participants’ to the proceedings. Stemming from this are more
specific differences in terms of procedural rights and modes of participation dur-
ing the proceedings. The differences between the two courts should be viewed and
understood in the different contexts within which they were established.
19.2.1 The Differences Between the Victim Participation

Regimes
The ECCC has a broad victim participation scheme derived from the Cambodian
national system, which, in turn, comes from the French civil law system. At the
ECCC, victims participate in the proceedings as ‘Civil Parties’ (CPs). Early ver-
sions of the ECCC IRs provided that when admitted as a CP, the victim became ‘a
party to the criminal proceedings’.7 In later versions of the IRs, this provision was
7ECCC Internal Rules (ECCC IRs), Rev. 3, revised on 6 March 2009 and Rev. 4, revised on
11 September 2009, Rule 23(6).
518 B. Zhang
deleted. However, the IRs still, in various provisions, refer to the Co-Prosecutors
and ‘other parties’,8 or the Charged Person or the accused and ‘other parties’,9
indicating that CPs are also deemed as one party to the proceedings.
Furthermore, the above-mentioned provisions are not only concerned with
claims for reparations, but also with the criminal proceedings generally. Indeed,
CP claims are raised and addressed in the criminal proceedings, together with the
criminal charges, the IRs do not provide for a separate ‘reparations phase’, unless
the Chamber deems it appropriate.10 CPs’ right to participation is for ‘all criminal
proceedings … starting from the investigative phase’.11 Therefore, the reference to
‘other parties’ in the IRs means that CPs is a party to the entire criminal proceed-
ings, not only to the proceedings concerning reparations or civil claims.
If one compares this scheme to that of the ICC, one may easily find that the
victim participation system in the ICC was built upon a rather different premise.
It does not recognize victims as a party to the proceedings. The provision that sets
out the basic principle for victim participation is Article 68(3) of the ICC Statute:
Where the personal interests of the victims are affected, the Court shall permit their views
and concerns to be presented and considered at stages of the proceedings determined to be
appropriate by the Court and in a manner which is not prejudicial to or inconsistent with
the rights of the accused and a fair and impartial trial.12
According to this provision, the purpose of victim participation is only to pre-

sent their ‘views and concerns’, significantly more limited compared with that at
the ECCC, which includes ‘participate in criminal proceedings against those
responsible for crimes within the jurisdiction of the ECCC by supporting the pros-
ecution’.13 The manner and timing of victims’ participation in the ICC proceed-
ings are subject to the discretion of the specific Chamber. Victims may intervene
only when they successfully demonstrate that their personal interests are affected
and that the manner and timing of their intervention would not prejudice the rights
of the accused at the particular stage of the proceedings when the request to inter-
vene is made.
Clearly, victims at the ICC do not enjoy the same status and procedural rights
as the ‘parties’, namely the Prosecutor and the accused. Unlike in the ECCC IRs,
nowhere in the ICC Statute or the ICC RPE is reference made, explicitly or
implicitly, to the victims as a ‘party’. Moreover, some procedural rights are explic-
itly granted only to ‘the Prosecutor or the person being investigated or prose-
cuted’, but not to the victims. One example is the request for disqualification of
8See e.g. ECCC IRs, Rev. 8, 3 August 2011, Rules 33(2), 55(11), 72(4). Rev. 8 is the version in
force at the time of writing.

9Ibid., Rules 58(4), 80(2).
10Ibid., Rule 100.
11Decision on Civil Party Participation in Provisional Detention Appeals, Nuon Chea and others
(002/19-09-2007/ECCC-C11/53), Pre-Trial Chamber, 20 March 2008, § 36.

12Article 68(3) ICCSt.
13ECCC IRs, Rev. 8, Rule 23(1)(a).
judges.14 In a recent Decision concerning victims’ standing for requesting the

disqualification of a judge in reparations proceedings, the ICC Plenary of Judges,
while recognizing victims’ ‘important role’ and that they ‘have the most interest’
in the reparations proceedings, ruled that victims did not have such standing.15
The Decision further calls the victims ‘important protagonists’,16 thus implicitly
confirms that they are not a ‘party’ even in the reparations proceedings.
The fundamental difference of victims joining as a party to the proceedings at
the ECCC, as opposed to them being mere participants at the ICC, leads to various
differences in specific procedural rights and modes of participations during the
proceedings. The ECCC IRs provide for broad participation rights of the CPs.
They shall be the first to make their closing statement17; they are entitled to ques-
tion the accused18 and make written submissions.19 In practice, apart from filing
written submissions, CPs were also allotted same amount of time as the
Prosecution and the Defence for making oral submissions.20 They enjoy the same
rights as other parties in questioning witnesses and the accused.21 After the revi-
sion of the IRs following the conclusion of the Duch trial, CPs are required to
form one consolidated group in the trial proceeding and can no longer exercise the
above-mentioned rights individually. It is now the Civil Party Lead Co-Lawyers
(CPLCLs) that represent all the CPs and exercise these rights on their behalf.22
On the other hand, the ICC’s jurisprudence has established that victims’ right
and manner of any intervention have to be determined on a case-by-case basis.
Victims have to demonstrate that their personal interests are affected at the particu-
lar stage of the proceedings. The Chamber would then consider whether or not the
proposed way of intervention could be allowed.23 Thus, although victims at the
14Article 41(2)(b) ICCSt.

15Decision of the Plenary of Judges on the Application of the Legal Representative for Victims
for the Disqualification of Judge Christine Van den Wyngaert, Germain Katanga (ICC-01/04-
01/07-3504-Anx), Plenary of Judges, 22 July 2004, §§ 41, 46.
16Ibid., § 43.
17ECCC IRs, Rev. 8, Rule 94(1).
18Ibid., Rule 90.
19Ibid., Rule 92.
20Conduct of Criminal Proceedings, Nuon Chea and others (002/19-09-2007/ECCC-PTC 17),
Pre-Trial Chamber, 10 November 2008, § 3.

21Towards the end of the Duch trial, the Trial Chamber rendered a controversial decision pre-
venting CPs from questioning the accused and witnesses on the accused’s character and from
making submissions on sentencing, which prompted the CPs to boycott the proceedings for
a week. See Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing
of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the
Questioning of the Accused, Experts and Witnesses Testifying on Character, Kaing Guek Eav
(Duch) (001/18-07-2007/ECCC-E72/3), Trial Chamber, 9 October 2009. Otherwise, CPs’ rights
in questioning witnesses and the accused are not particularly limited.
22ECCC IRs, Rev. 8, Rule 12ter, Rule 23.
23Decision on Victims’ Participation, Lubanga (ICC-01/04-01/06-1119), Trial Chamber I, 18 January
2008, §§ 101–104.
520 B. Zhang
ICC might actively participate in the proceedings by making opening and closing
statements, questioning witnesses or the accused, or even tendering evidence,24 the
actual exercise of these rights is subject to the full discretion of the particular
Chamber that hears the case. In comparison, the CPs at the ECCC, once admitted
as such, are entitled to exercise their rights of participation as provided by the IRs
without asking for any specific permission. There is no requirement that the CPs
demonstrate their personal interests being affected by specific issues in a given
stage of the proceedings.
19.2.2 Contextual Backgrounds for the Differences
The differences between the victim participation schemes at the ECCC and ICC
are natural if considered against the different contexts within which they were cre-
ated and operate.
First, with regard to the procedural rules, the ECCC IRs drew on the ‘existing
procedures’ in Cambodia law, as required by the Law on the Establishment of the
ECCC.25 The victim participation scheme at the ECCC thus has a civil law origin
and operates within a system that is primarily civil law oriented. It follows the
French ‘partie civile’ system and treats the victims as a party to the proceedings.
The drafting of the Rome Statute and the ICC RPE, on the other hand, was
marked by tensions between the two major western legal traditions, i.e., the com-
mon law and the civil law systems.26 The final outcome was a combination or
compromise of the two systems, with an emphasis on common law and the adver-
sarial approach associated with it.27
Therefore, the victim participation regime at the ICC, though widely consid-
ered as reflecting the civil law tradition, cannot actually operate in the same way
as its domestic counterparts. Operating in a system of unique compromise of the
common law and civil law traditions,28 the victim participation mechanism at the
ICC has to find its right place in this new system and establish practices that will
enable its smooth functioning. The rules on victim participation thus are not and
cannot be strictly modeled on any domestic system of civil law countries. Victims
are not granted the status of a ‘party’ and the Statute and RPE provide only very
24See Decision on the Modalities of Victim Participation at Trial, Katanga (ICC-01/04-01/07-
1788-tENG), Trial Chamber II, 22 January, 2010; Judgment on the Decision on the Modalities of
Victim Participation at Trial, Katanga (ICC-01/04-01/07-2288), Appeals Chamber, 16 July 2010.
25Article 33 Law on the Establishment of the Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed During the Republic of Kampuchea,
NS/RKM/1004/006, 27 October 2004.
26See generally, Fernandez de Gurmendi 2001, 235–257.
27Cassese 1999, at 168.
28Kress 2003, at 604.
general outlines. The specific timing and modalities of participation are deliber-
ately left to the judges to interpret and implement in particular cases.29
Furthermore, the ECCC, as a ‘hybrid’ court established in Cambodia, has some
special features compared to the ICC, notably that it is expected to achieve broader
social goals than the ICC. At the very beginning of the long road that led to the
establishment of the ECCC, ‘national reconciliation’ was already listed as the first
objective to be achieved.30 There is a high expectation that the ECCC will contrib-
ute to the reconciliation in the Cambodia society.31 For that purpose, and learning
from the lessons of previous international tribunals concerning long-term social
effect, the ECCC is expected to be closer to the victims and the general population
in Cambodia.32 This requires that it will play a role not only in the pursuit of crim-
inal justice, but also of ‘national reconciliation, stability, peace and security’.33
The ICC, on the other hand, is a ‘pure’ international court sitting in a place far
away, most of the times, from the scene of the crimes under its jurisdiction.
Although the ICC recognizes the need to administer restorative and reparative jus-
tice, which is shown in the inclusion of the victim participation and reparation sys-
tem,34 its primary focus remains prosecuting and punishing the offenders. Thus,
while recognizing victim’s suffering, the Preamble of the ICC Statute stresses the
determination to ‘put and end to impunity’ through prosecution and punishment. It
is thus no wonder that the afore-cited Article 68(3) of the ICC Statute emphasizes
the expeditiousness and fairness of the proceedings and qualifies victim participa-
tion according to these considerations.
These contextual differences led to the respective premises of the victim partic-
ipation schemes at the ECCC and the ICC. The ECCC was modeled on the French
civil law system. It further carries high expectations on its long-term and general
legacy to the Cambodian society. The ICC has a procedural system that is a mix-
ture of elements from both the civil law and the common law traditions. The vic-
tim participation regime at the ICC is not modeled on any domestic legal system,
but a brand new scheme created within the ICC Statute framework. The drafters
deliberately left the judges with great discretion to decide upon the actual rights of
participation and upon their exercise. Moreover, it is clear that the ICC’s mandate
and main focus is to punish the perpetrators of international crimes; the judges are
duty-bound to make sure that participation of victims could by no means hinder
the expeditiousness and fairness of the proceedings.35
29Bitti and Friman 2001, at 457.

30See Letter from the Secretary-General addressed to the President of the General Assembly, UN
Doc. A/52/1007, 31 July 1998.
31See Stammel et al. 2010; Kirchenbauer et al. 2013, at 32.
32Linton 2001, at 185; Pentelovitch 2008, at 465.
33Agreement between the United Nations and the Royal Government of Cambodia concerning
Kampuchea, Preamble.
34McGonigle 2009, at 96.
35Bitti and Friman 2001.
522 B. Zhang
19.3 Towards a Common Trend
At both the ICC and the ECCC, the victim participation systems evolved rather
rapidly. For the ICC, this is primarily because both the ICC Statute and the RPE
contain only general requirements for victim participation; the Judges are left with
great discretion to determine the timing and modalities of participation. At the
ECCC, this is possible because the Judges have the right to amend the IRs. The
IRs have been modified several times. Victim participation is one of the most fre-
quently and greatly amended sections.
Thus, if one were to set aside the above-mentioned differences of the two sys-
tems on a principle level, and assess the practical implementation, one may find
many surprising similarities. One similar feature particularly noteworthy is that
both are developing towards a more streamlined approach. At the ECCC, the early
days of the Duch case saw broad participation rights exercised by the CPs, but the
Trial Chamber sought to restrict these rights as the trial went on.36 After the first
trial, the entire system was largely amended, with the purpose of increasing effi-
ciency and making the regime more manageable.37 At the ICC, the early decisions
concerning victim participation also tended to take a broad approach.38 However,
as the number of victims continued to increase, the time needed to deal with rele-
vant issues proved to be long and the resources insufficient, later jurisprudence
became more and more restrictive.39
This section purports to examine one example of this trend: the mechanism of
collective legal representation of victims. This example is chosen not only because
it is perhaps the most noticeable change, especially at the ECCC, but also because
it is an indispensable mechanism for the thousands of victims to effectively exer-
cise their rights. The ICC has called common legal representation ‘the primary
procedural mechanism for reconciling the conflicting requirements of having fair
and expeditious proceedings, whilst at the same time ensuring meaningful partici-
pation by potentially thousands of victims …’40 Thus, it could serve as a good
indication of how the courts balance conflicting interests when dealing with victim
participation.
36See Werner and Rudy 2010, 301–309.

37See ECCC, Press Release, ‘Sixth Plenary Session Concludes’, available at http://www.eccc.
gov.kh/en/articles/sixth-eccc-plenary-session-concludes (visited 15 June 2015).
38See, e.g., Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2,
VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Situation in the Democratic Republic of the Congo
(ICC-01/04-101), Pre-Trial Chamber I, 17 January 2006, §§ 50–54.
39See e.g. Trial Chamber II’s refusal to authorize anonymous victims to testify in Katanga,
Decision on the Modalities of Victim Participation at Trial, Katanga (ICC-01/04-01/07-1788),

Trial Chamber II, 22 January 2010, §§ 92–93.
40Order on the Organization of Common Legal Representation of Victims, Katanga (ICC-01/04-
01/07-1328), Trial Chamber II, 22 July 2009 (hereafter Order on the Organization of CLR), § 11.
19.3.1 Civil Party Lead Co-Lawyers at the ECCC
The CP participation regime at the ECCC changed drastically from Case 001 to
Case 002. In the Duch Case, the CPs participated as individuals. 93 CPs participated
in the trial proceedings, all represented by lawyers. They were divided into four CP
groups, each being represented by one international and one national lawyer.41
This system did not survive the test of practice. At the beginning of the first
trial, all eight CP Lawyers took turns to question every witness and make submis-
sions on every legal issue, with frequent repetition with the Co-Prosecutors and
among themselves.42 As the trial went on and obviously took longer than
expected, the Trial Chamber resorted to various measures to achieve a stronger
trial management. At one point, the Trial Chamber decided to allocate a specific
time slot to every party for their questioning and submissions, and suggested that
all four groups of CPs designate two lawyers, one national and one international,
to ask questions on their behalf.43 However, the CP groups would seldom follow
this suggestion, although it was observed that doing so would effectively reduce
repetitive questions.44
These experiences led to various amendments to the victim participation regime
by the Judicial Plenary, however only after the Duch trial. The most notable
amendment was the introduction of two Civil Party Lead Co-Lawyers (CPLCLs),
financed by the ECCC.45 Instead of allowing several CP groups to take part in the
trial proceedings, the new IRs provide that all the CPs form one ‘single, consoli-
dated group’, represented by two CPLCLs, one international and one national,
during the trial proceedings.46 The CPLCLs will coordinate with the CP Lawyers,
and will present before the Court a consolidated view of all CPs.47
There is a legitimate concern that these changes severely diminish the role of
victims in the proceedings, even to the extend that they can no longer be called
‘Civil Parties’, as this term entails certain rights of the victims, which no longer
exist in the new IRs.48 This concern especially stems from the fact that the CPLCLs
do not represent individual CPs and thus there is no attorney-client relationship as
such (at least not in its traditional sense) between the CPs and the CPLCLs.49
2010, §§ 637–638.
42See e.g. Asian Justice Initiative, ‘The KRT Trial Monitor Report, Case 001’, Issue No. 7 (2009),
at 7; Issue No. 14 (2009), at 7, available online at http://krtmonitor.org/category/case-001-reports/

page/2/ (visited 15 June 2015).
43Ibid., Issue No. 9 (2009), at 9.
44Ibid., Issue No. 16 (2009), at 8.
45ECCC IRs, Rev. 8, Rule 12ter.
46Ibid., Rule 23(3).
47Ibid., Rule 12ter.
48See e.g. Diamond 2011, 1–14.
49Ibid.
524 B. Zhang
The practice of Case 002 may ease these concerns to some extend, as the CP
Lawyers did not lose their opportunity to represent their clients in court as some
feared. Instead of dominating the advocacy for CPs, the CPLCLs frequently gave
the floor to the CP lawyers to make submissions50 and to ask questions.51 At the
‘Victim Impact Hearings’, where the CPs state their sufferings in court, the
CPLCLs further utilized the time allotted to them to allow the CP Lawyers to
question their own clients.52 At times, this practice even led to a similar situation
as in Case 001, where several CP lawyers took the floor only to make repetitive
submissions, and similarly prompted the Trial Chamber to advise that at most two
lawyers spoke on each issue.53 Some CP lawyers also had the chance to present
part of the closing statements of CPs,54 even though the IRs only granted this right
to the CPLCLs.55
Nevertheless, it has to be acknowledged that compared to the individual
approach in the Duch case, the legal representation scheme in Case 002 reduced
the opportunity for the distinct interests of individual CPs to be represented.
Although CP lawyers still have an active role during the current proceedings,
this is more due to the approach taken by the incumbent CPLCLs, instead of pro-
vided as a legal right in the IRs. Thus, it is undeniable that the victim participation
regime has moved from a largely individual system to a substantially collective
one.
Nearly 4000 victims were admitted as CPs and participated in Case 002.56 The
sheer number would have rendered the system employed in the Duch case simply
impossible. As Judge Silvia Cartwright stated, it simply exceeded ‘the capacity of
the trial chamber to involve [CPs] individually’.57 Even those who have reserva-
tions about the new CPLCLs system agree that the individual system as adopted in
the Duch case ‘would be entirely impossible’.58 Given the situation in the Duch
case and the high number of participating victims in Case 002, it is obvious that
50See e.g. Evans 2011b.

51See e.g. Embree 2012.
52See e.g. Kozlovski 2013. For the time allocation for questioning CPs at the impact hearing,
see Transcript of 21 May 2013, Nuon Chea and others (002/19-09-2007/ECCC-E1/194.1), Trial
Chamber, 21 May 2013, at 119–120.
53Evans 2011a.
54Transcript of 16 October 2013, Nuon Chea and others (002/19-09-2007/ECCC- E1/228.1),
Trial Chamber, at 4.
55ECCC IRs, Rev.8, Rule 94(1).
2014, § 1111.
57J. O’Toole, ‘KRT Plans Rule Changes’, Phnom Penh Post, 3 February 2010, available at
http://www.phnompenhpost.com/national/krt-plans-rule-changes (visited 15 June 2015).

58Werner and Rudy 2010, at 8; see also J. Winch, ‘Cambodia: What Next for the Extraordinary
Chambers?’, quoting Anne Heindel as saying that the victims involved in Case 002 ‘are no
longer civil parties’, and that ‘[t]his court has shown that civil party participation does not work
in mass crimes’, available at http://www.crimesofwar.org/commentary/cambodia-what-next-for-
the-extraordinary-chambers/ (visited 15 June 2015).
the adoption of a collective approach was inevitable and irreversible. While there
remain legitimate concerns and problems that need to be solved within the new
framework, one must admit the need for improvement and for guaranteeing the
efficiency of a criminal trial.
19.3.2 Common Legal Representation at the ICC
At the ICC, the eleventh session of the Assembly of States Parties officially announced
in its resolution that it ‘takes note with appreciation of all efforts to enhance the effi-
ciency and effectiveness of victim participation, including in particular by encouraging
a more collective approach’59 (emphasis added). Thus far, this approach is best
reflected in the evolving practice of the Court’s common legal representation regime.
The common legal representation system finds its basis in Rule 90 of the ICC
RPE. According to Rule 90(1), victims shall be free to choose a legal representa-
tive. However, because of the large number of victims, it is evidently not possible
for each victim being represented by a different counsel. Rule 90 thus also pro-
vides for a common legal representation mechanism, whereby the Chamber may
request the victims to choose one or more common legal representatives; and if
they are unable to do so, the Registry may choose one or more for them.60
In the Lubanga case, where the number of participating victims was relatively
small, victims were still able to have legal representatives of their own choice.61
The 129 victims were divided into two groups, represented by two teams of exter-
nal counsel, with another four victims represented by the Office of Public Counsel
for Victims.62 In later cases, as victims participating in the proceedings increased
in number, emphasis was more and more placed on efficiency. As will be demon-
strated below, the system became more collective. It has now become an implicit
rule that all participating victims, sometimes numbering thousands, shall form one
group, represented by one common legal representative, unless they can prove the
existence of conflicts of interests. Furthermore, victims are playing an increasingly
diminished role in their grouping and in choosing their common legal representa-
tive, thus diverging from the explicit requirements of Rule 90.
This trend was observed immediately after Lubanga, in the second case before the
ICC, the Katanga case. In Katanga, four teams represented 57 victims at the confir-
mation of charges stage of proceedings.63 At the trial stage, however, 366 victims64
59Resolution ICC-ASP/11/Res.7 (21 November 2012), § 5.

60Rule 90(2), 90(3) ICC RPE.
61Leyh 2011, at 327.
62Judgment pursuant to Article 74 of the Statute, Lubanga (ICC-01/04-01/06-2842), Trial
Chamber I, 14 March 2012, §§ 15, 20.

63War Crimes Research Office 2011.
64See Case Information Sheet, ‘Katanga’, available at http://www.icc-cpi.int/iccdocs/PIDS/publications/
KatangaEng.pdf (visited 15 June 2015).

526 B. Zhang
were divided into two groups.65 Trial Chamber II stated that it was ‘guided by three
overriding concerns’ in the grouping of victims and the organization of their common
legal representation:
a. First, the Chamber attaches the greatest importance to the requirement that
the participation of victims…must be as meaningful as possible as opposed to
being purely symbolic…
b. Second, the Chamber is duty-bound to ensure that the proceedings are con-
ducted efficiently and with the appropriate celerity…
c. Third, the Chamber is of the view that its obligation…to ensure that victims’
participation is not prejudicial to or inconsistent with the rights of the accused
and a fair and impartial trial, extends to the organisation of the legal representa-
tion of victims. (emphasis added)66
These three concerns can be summarized as the requirements of efficiency and
fairness versus victims’ participation being meaningful. From the wording of Trial
Chamber II, it is clear that it attaches more importance to the former, as it con-
siders itself ‘duty-bound’ and under an ‘obligation’ to ensure efficiency and fair-
ness, while for the latter, it is up to the Chamber to guarantee it ‘as meaningful as
possible’.
Guided by these considerations, Trial Chamber II averred that victims’ freedom
to choose a legal representative was qualified by the common legal representation
mechanism and ‘subject to the inherent and express powers of the Chamber to take
all measures necessary if the interests of justice so require’.67 This approach was
later endorsed and followed by Trial Chamber III in Bemba.68 Trial Chamber III
made it even more explicit by stating that although it was obliged under the
Regulations of the Court to give consideration to the views of the victims when
choosing a common legal representative, their views ‘can only be taken into
account to the extent possible’, ‘bearing in mind the important number of victims’
applications pending before the Chamber and the proximity of the commencement
of trial’.69
In Banda & Jerbo, before the commencement of the trial, Trial Chamber IV
ordered the Registry to conduct consultations with the victims with respect to the
organization of common legal representation.70 The Registry stated that further
direct consultations with the victims were of limited value, and the victims would
65Order on the Organization of CLR, supra note 40, §§ 12–13.

66Ibid., § 10.
67Ibid., § 11.
68Decision on Common Legal Representation of Victims for the Purpose of Trial, Bemba (ICC-
01/05-01/08-1005), Trial Chamber III, 10 November 2010, § 9.

69Ibid., § 14.
70See Order Instructing the Registry to Start Consultations on the Organization of Common
Legal Representation, Banda & Jerbo (ICC-02/05-03/09-138), Trial Chamber IV, 21 April 2011.
not be able to make a choice on their own.71 Because of this, and considering the
time and resources required for direct consultation with the victims, the Registry
proposed to organize common legal representation without direct consultation
with the victims. The decision would instead be based on the input the Registry
had already received from the victims in the process of their applications for par-
ticipation and on ‘objective criteria aimed at achieving quality legal representation
in the best interests of victims’.72
Trial Chamber IV endorsed the Registry’s proposal and emphasized that when
the victims were not able to choose one or more common legal representative on
their own, the right of choice rests on the Registry.73 The Registry has full discre-
tion on this issue, pursuant to the ‘objective criteria’ it proposed and adopted by
the Chamber, as long as no conflict of interest is proven.74 However, the Registry’s
conclusion of the victims’ inability to choose common legal representative was
based on general difficulties for victims to do so, rather than on any specific situa-
tion in that particular case.75 If this approach is followed, then this consequently
means that victims will not be able to choose common legal representatives in any
given case. The Registry will always have the power to make such choices, even
without any consultation with the victims.
The Kenya cases saw the biggest change in the victim participation and com-
mon legal representation system thus far. Important changes included a simplified
application system and a system by which the Office of Public Counsel for
Victims acts on behalf of the common legal representative in the day-to-day pro-
ceedings while the latter remains in the field except for ‘critical junctures of the
trial’.76 In terms of the selection of the common legal representative, Trial
Chamber V directed the Registry to submit a recommendation for the position
based on a set of criteria, but made no mention whatsoever of the views of vic-
tims.77 Trial Chamber V referred to Rule 90(3) of the RPE, which stipulated that
the Chamber may request the Registrar to choose one or more common legal rep-
resentatives for the victims if the latter are not able to do so.78 The Chamber, how-
ever, did not explain why victims were not able to choose a common legal
representative, or whether they were actually given the chance to do so. Similar to
71Report on the Implementation of the Chamber’s Order Instructing the Registry to Start
Consultations on the Organization of Common Legal Representation, Banda & Jerbo (ICC-
02/05-03/09-164-Red), Registry, 21 June 2011, §§ 13–14.
72Ibid., § 14.
73Decision on Common Legal Representation, Banda & Jerbo (ICC-02/05-03/09-337), Trial
Chamber IV, 25 May 2012, § 14.

74Ibid., §§ 12–5.
75Report on the Organization of Common Legal Representation, Banda & Jerbo (ICC-02/05-
03/09-187), Registry, 5 August 2011, §§ 3–4.

76Decision on Victims’ Representation and Participation, Ruto & Sang (ICC-01/09-01/11-460),
Trial Chamber V, 3 October 2012, §§ 25, 41–43.

77Ibid., § 61.
78Ibid.
528 B. Zhang
Banda & Jerbo, it seems to be an established presumption that victims are unable
to choose their own common legal representative.
Further, the Registry, when making its recommendation, did not consult with
victims or victim communities, but instead referred to the consultation that took
place at the confirmation of charges stage of the case.79 The problem is, at the con-
firmation of charges stage, the common legal representation was organized before
the victims were accepted to participate in the proceedings. The Registry only
relied on ‘views expressed on legal representation by members of various victim
communities throughout the Registry’s work in Kenya’.80 In other words, what the
Registry considered were views on legal representation generally, but not the spe-
cific issue of selecting a common legal representative; and the views were not nec-
essarily representative of those who were later accepted to participate in that
particular case. In fact, at the trial stage, the Registry only referred to consultation
with victims on the criteria for selecting a common legal representative, but not on
the selection itself.81 It seems clear that the Registry choosing the common legal
representative for the victims has become a rule, rather than an exception as envis-
aged by Rule 90.
These developments in the ICC jurisprudence concerning common legal repre-
sentation undoubtedly demonstrate an increasing emphasis on efficiency to a point
that the ICC even diverged from the explicit provisions of the RPE and compro-
mised the consideration of victims’ views and concerns. It has now become a com-
mon practice that one common legal representative represents all participating
victims, unless a conflict of interest is proven, and this common legal representa-
tive is chosen by the Registry, applying a set of objective criteria, without consul-
tations with victims. Chambers and the Registry have indicated in various cases
that only clearly identified and proven conflict of interests or substantially distinct
interests would ‘justify’ separate legal representation.82
Therefore, at both the ECCC and the ICC, in terms of legal representation
of victims, the practice becomes rather similar: only one group of victims, rep-
resented by one team of legal representative, albeit in Cambodia this has been
embodied in the IRs, while in ICC it is becoming an implicit rule. Surely there
are still many remarkable differences, for example, at the ECCC the CPLCLs are
not, strict senso, the lawyers of the individual victims, but at the ICC there exists
client-attorney relationship between the common legal representative and the vic-
tims. Thus, at the ECCC the CPLCLs are tasked with coordinating the different
79Recommendation for the Position of Common Legal Representative of Victims, Ruto & Sang
(ICC-01/09-01/11-467), Registry, 5 November 2012 (hereafter Recommendation for CLR), § 8.

80Proposal for the Common Legal Representation of Victims, Ruto, Kosgey & Sang (ICC-01/09-
01/11-243), Registry, 1 August 2011, § 6.

81Recommendation for CLR, supra note 79.
82Proposal for the Common Legal Representation of Victims, Gbagbo (ICC-02/11-01/11-120),
Registry, 16 May 2012; Decision on Common Legal Representation, supra note 73, §§ 34,
41–46.
interests of the CPs and represent them as one consolidated group, while at the
ICC the common legal representative is supposed to raise the issue of conflict of
interests once it appears and the group could be split up if necessary. However, it
is obvious that there is a common trend towards a more collective approach.
19.4 Recognizing the Limits of Criminal Proceedings
As demonstrated above, irrespective of the differences between the victim partici-

pation regimes at the ICC and the ECCC, both have been moving towards a collec-
tive approach. The evolvements at both courts have taken very similar routes. Both
started with an expanded version of victim participation regime, with the fervour
of a new system and an ambition to provide victims with a forum for meaningful
participation and redress. However, practice proved the broad approach difficult, if
not entirely impossible, and both then moved, or withdrew to a more streamlined
approach.
While most recognize that too broad victim participation regime is not practi-
cal, many have concerns about the above-discussed trend towards a more stream-
lined approach, as it tends to limit victims’ rights.83 There have been suggestions
that to resolve the difficulties encountered in the operation of victim participation
systems, the solution rests on further commitment to sufficient resources and a
better-designed system, including the refinement of some of the details of the cur-
rent systems.84 However, a better system cannot possibly be designed without rec-
ognizing the limits of both the criminal justice system and the victim participation
regime; and more resources would only be in vain without accepting the fact that
criminal proceedings may not be the best avenue to spend those resources for the
purpose of upholding victims’ rights.
It is of no doubt that the primary purpose and function of any criminal proceed-
ings is, first and foremost, to try the accused and mete out punishment on offend-
ers. As declared in the Preamble of the ICC Statute, the ICC was established with
the determination of putting ‘an end to impunity for the perpetrators … and thus to
contribute to the prevention of’ international crimes. The Appeals Chamber of the
ICC has stated that ‘the purpose of trial proceedings is the determination of the
guilt or innocence of the accused person’.85 Judge Blattmann has made it even
clearer by stating that ‘[t]he right of the victims to participate do not overshadow
the absolute right of the Accused to a fair and impartial trial and this must always
83See e.g. Werner and Rudy 2010, at 301.

84See e.g. Victims’ Rights Working Group, ‘International Criminal Court at 10: The implementation
of victims rights’, (2012), available at http://www.vrwg.org/VRWG%20Documents/201114_VRWG_
ASP11-ENGLISH-VERSION.pdf (visited 15 June 2015); Pena 2010, at 511–515.
85Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision
on Victims’ Participation of 18 January 2008, Lubanga (ICC-01/04-01/06-1432), Appeals

Chamber, 11 July 2008, § 62.
530 B. Zhang
be at the forefront of our judicial activity’(emphasis added).86 This demonstrates

an emphasis on the retributivist and utilitarian value of criminal proceedings.87
Victim participation regime, however, is based on restorative justice goals.
This article does not intend to delve into the issue of different theories of jus-
tice. Suffice it to note that both retributive and utilitarian justice theories have a
focus on the offender,88 while restorative justice aims at bringing together all par-
ties relevant to an offence and seeks to promote restoration and reconciliation.89
Criminal justice system, including the procedural devices involved, is designed
under retributive or utilitarian theories, or a combination of them. A criminal
offence is viewed, first and foremost, as ‘a violation of the State, defined by law-
breaking and guilt’, causing injury to the society at large, and it is thus the
State—a group of States in the case of international courts—that is responsible to
bring the offender to justice.90 A series of procedural guarantees are then devel-
oped to ‘serve as a brake against state power and overzealous prosecution’.91
Restorative justice devices, on the other hand, are generally more informal and
less legalistic. Examples include victim-offender mediation in some domestic
jurisdictions,92 as well as truth commissions utilized in dealing with international
crimes.
Although some have argued that these approaches are not inherently incompati-
ble with each other,93 the differences remain fundamental. In theory, they are
aimed at completely distinct results. In practice, they point to different mecha-
nisms and regimes for achieving their respective goals. While it is indeed possible
to have a system based on one theory while including some elements of another, it
is difficult to achieve both goals to the same extent at the same time. The Duch
case before the ECCC serves as an important lesson on the result of trying to
stress both. The dilemma of balancing efficiency and meaningful victim participa-
tion, which the international criminal tribunals now face, is precisely out of an
unrealistic ambition of achieving both goals through international criminal
proceedings.
In this connection, there is an important difference between the ECCC and the
ICC that is worth noting. As the ECCC is a hybrid Court established within and
operating in the specific context of Cambodia, it has been expected to and can
indeed have a broader social dimension, with more possibilities to contribute to
social changes and to the formulation of a common history. In the context of the
86Separate and Dissenting Opinion of Judge Rene Blattmann, Public Decision on Victims’
Participation, Lubanga (ICC-01/04-01/06-1119), Trial Chamber I, 18 January 2008, § 30.

87For an introduction of different punishment theories, see generally Luna 2003, 205–302.
88Mills 2006, at 459.
89Luna 2003, at 228.
90Zehr 1990, at 181.
91Delgado 2000, at 766.
92See e.g. Wemmers 2009, at 404, 407–408.
93Mills 2006, at 468.
ECCC, it is difficult to give an answer as to which is the primary goal of the tribu-
nal, as in the long run the social dimensions of the tribunal might even prove more
important.94
On the other hand, the ICC is premised on its punitive function, which may
in turn contribute to a deterrent effect of ‘ending impunity’. Furthermore, the
ICC has to deal with very different contexts in different cases. In terms of social
aspects like reconciliation and restoration, each society has its own special dynam-
ics, requiring different approaches. It would thus be impossible for one interna-
tional court, operating under a uniform set of procedures and rules, to deal with
such issues. The ICC is, and can only be, a criminal court, the primary task of
which is to determine the criminal responsibility of the accused persons. In the
ideal scenario, it might serve as one contributing element in the process of the
recovery of the society after international crimes took place, but it can hardly be
expected to do more than that.
In the Katanga case, the ICC observed that victim participation must be as
meaningful as possible, as opposed to merely symbolic.95 However, any attempt to
achieve meaningful victim participation has to operate within the inherent limits of
criminal proceedings. It has to be admitted that the primary goal of international
criminal courts is and can only be to punish the offenders and their procedures can
only be and are indeed designed and conducted on this basis. Practice has proved
that being too ambitious does not work. It would affect the smooth functioning of
the criminal proceedings while at the same time frustrate the expectations of the
victims.
19.5 Conclusion
Victim participation in international criminal proceedings is of no doubt a signifi-

cant improvement from the neglect of victims’ needs and rights in the Nuremburg
era. However, both at the ICC and the ECCC, when the initial fervour for the new
system waned as practical difficulties emerged, a more collective and streamlined
approach was adopted to ensure the smooth functioning of the criminal proceed-
ings. This is not surprising given that the primary purpose of criminal courts and
tribunals remains to determine upon the guilt or innocence of the accused person,
and to mete out punishment.
On the other hand, non-legal mechanisms could be designed to concentrate on
victims and aim at restorative justice.96 Studies and surveys on victims’ perceptions
have also demonstrated that participation in criminal proceedings may not be the
best way to meet their needs. Increased participation in the criminal proceedings
94Seegenerally Scully 2011, 300–353.

95Order on the Organization of CLR, supra note 40, § 10.
96Leyh 2011, at 365.
532 B. Zhang
may not necessarily bring positive effect on the part of the victims. On the contrary,
victims often prefer to take a less active part, and are satisfied if their voices are
heard, and information concerning their cases is provided to them.97
A successful transition of the post-conflict society and healing of victims
require multiple mechanisms reflecting various aspects of justice.98 Criminal jus-
tice can be only part of this entire process. It is not necessarily the preferred mech-
anism by victims, and certainly not the only or even primary concern of victims.
For example, according a survey on attitudes about justice in northern Uganda,
when provided with four options of different mechanisms, nearly half of the more
than two thousand interviewed victims chose ‘peace with amnesty’, with ‘peace
with a truth-seeking mechanism’ following as the second, and only 15 % chose
‘peace with trials’.99 Even in Cambodia, where the trials are already going on, a
recent study based on interviews with CPs shows that only a very small percentage
of the interviewed CPs considers justice related issues as one of their top three
concerns.100 According to this study, even though the interviewed CPs generally
possessed a highly positive attitude towards the ECCC, still about half of them
stated that it would be more important to focus on problems of today rather than to
address Khmer Rouge crimes.101 Given the fact that this study is based on inter-
views with CPs, i.e., the victims that chose to participate in the criminal proceed-
ings, this result is quite telling in demonstrating the multiple needs of victims and
the limited role criminal justice can play in satisfying such needs. Indeed, although
the number of CPs participating in Case 002 is significant, it is only a very small
portion of the Cambodians who may qualify as ‘victims’ even in its strict legal
sense.
Surely, these surveys cannot speak for every situation everywhere, and certainly
not for every victim, but they show the need to explore possibilities other than
criminal procedures. International crimes and the potential ways to address them
are intrinsically linked with their specific social contexts. The needs and expecta-
tions of victims may also vary significantly in different contexts. It is thus essential
to avoid using criminal trials as a panacea. Criminal justice can play its part, but
its main task remains to punish offenders. For the purpose of realizing victims’
rights and meeting their needs, other mechanisms adapted to the specific context
are also necessary, and deserve more attention and resources.
To conclude, struggling to broaden victim participation in criminal proceed-
ings is not necessarily the only or the best solution. Rather, international criminal
courts should not create expectations that cannot be fulfilled. The limits of interna-
tional criminal trials have to be recognized and accepted. This is not only impor-
tant for the functioning of the criminal proceedings, but also, and even more so,
97Rauschenback and Scalia 2008, at 444–445.

98Sullivan and Tifft 2006, at 343–54.
99Pham and Vinck 2010, at 3.
100Kirchenbauer et al. 2013, at 16.
101Ibid., at 32–33.
because only by admitting the limits can we go beyond it, because recognizing
the limits of criminal trials means a need to explore other ways to realize victims’
rights. Ultimately, criminal proceedings is not a solution to everything, it can only
be just a part of the entire process of post-conflict healing of victims and rebuild-
ing of the society.
References
Bitti G, Friman H (2001) Participation of Victims in the Proceedings. In: Lee R (ed) The
International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence,
Transnational Publishers, Ardsley, New York, pp 456–474
Cassese A (1999) The Statute of the International Criminal Court: Some Preliminary Reflections.
Danieli Y (2006) Reappraising the Nuremberg Trials and Their Legacy: The Role of Victims in
International Law. Cardozo Law Review 27:1633–1649
Delgado R (2000) Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative
Justice. Stanford Law Review 52:751–757
Diamond A (2011) Victims Once Again? Civil Party Participation Before the Extraordinary
Chambers in the Courts of Cambodia. Rutgers Law Record 38:1–14
Donat-Cattin D (1999) Article 68: Protection of Victims and Witnesses and their Participation in
the Proceedings. In: Triffterer O (ed) Commentary on the Rome Statute of the International
Criminal Court, Nomos, Baden-Baden, pp 869–888
Embree E (2012) Historical Testimony Continues as Both the Prosecution and Civil Party
Lawyers Question the Expert, Cambodia Tribunal Monitor. www.cambodiatribunal.org/_
archived-site/blog/2012/07/historical-testimony-continues-both-prosecution-and-civil-party-
lawyers-question-expert. Accessed 15 June 2015
Evans C (2011a) A Day on Limitations and Reparations, Cambodia Tribunal Monitor. www.cam
bodiatribunal.org/_archived-site/blog/2011/06/day-limitations-and-reparations. Accessed 15
June 2015
Evans C (2011b) They Shall be Heard, Cambodia Tribunal Monitor. www.cambodiatribunal.
org/_archived-site/blog/2011/06/they-shall-be-heard. Accessed 15 June 2015
Fernandez de Gurmendi S (2001) Elaboration of the Rules of Procedure and Evidence. In: Lee
R (ed) The International Criminal Court: Elements of Crimes and Rules of Procedure and
Evidence, Transnational Publishers, Ardsley, New York, pp 235–257
Kozlovski M (2013) I Am Not the Khmer Rouge: Khieu Samphan Responds to Civil Parties,
Cambodia Tribunal Monitor. www.cambodiatribunal.org/_archived-site/blog/2013/05/“i-am-
not-khmer-rouge”-khieu-samphan-responds-civil-parties. Accessed 15 June 2015
Kress C (2003) The Procedural Law of the International Criminal Court in Outline: Anatomy of
Unique Compromises. Journal of International Criminal Justice 1:603–617
Leyh B (2011) Procedural Justice? Victim Participation in international Criminal Proceedings.
Intersentia, Cambridge
Linton S (2001) Cambodia, East Timor, Sierra Leone: Experiments in International Justice.
Criminal Law Forum 12:185–246
Luna E (2003) Punishment Theory, Holism, and the Procedural Conception of Restorative
Justice. Utah Law Review 1: 205–302
McGonigle B (2009) Bridging the Divides in International Criminal Proceedings: An
Examination into the Victim Participation Endeavour of the International Criminal Court.
Florida Journal of International Law 21:93–151
534 B. Zhang
Mills L (2006) The Justice of Recovery: How the State Can Heal the Violence of Crime. Hastings
Law Journal 57:457–508
Pena M (2010) Victim Participation at the International Criminal Court: Achievements Made and
Challenges Ahead. ILSA Journal of International and Comparative Law 16:497–515
Pentelovitch N (2008) Seeing Justice Done: The Importance of Prioritizing Outreach Efforts at
International Criminal Tribunals. Georgetown Journal of International Law 39:445–494
Pham P, Vinck P (2010) Transitioning to Peace: A Population-Based Survey on Attitudes about
Social Reconstruction and Justice in Northern Uganda. Human Rights Center, University of
California, Berkeley, School of Law. www.law.berkeley.edu/HRCweb/pdfs/HRC_Uga2010final_
web.pdf. Accessed 15 June 2015
Rauschenback M, Scalia D (2008) Victims and International Criminal Justice: A Vexed
Question? International Review of the Red Cross 90:441–459
Scully S (2011) Judging the Success and Failures of the Extraordinary Chambers of the Courts of
Cambodia. Asian-Pacific Law & Policy Journal 13: 300–353
Stammel N, Burchert S, Taing S, Bockers E, Knaevelsrud C (2010) The Survivors’ Voices:
Attitudes on the ECCC, the Former Khmer Rouge and Experiences with Civil Party
Participation. http://psychologybeyondborders.org/wp-content/uploads/2013/08/bzfo_cambo-
dia_report_20101.pdf. Accessed 15 June 2015
Sullivan D, Tifft L (eds) (2006) Handbook of Restorative Justice: A Global Perspective.
Routledge, New York
War Crimes Research Office (2007) Victim Participation Before the International Criminal Court.
www.wcl.american.edu/warcrimes/icc/icc_reports.cfm. Accessed 15 June 2015
War Crimes Research Office (2011) Ensuring Effective and Efficient Representation of Victims at the
International Criminal Court. www.wcl.american.edu/warcrimes/icc/documents/WCROReport15-
VictimRepresentation.pdf. Accessed 15 June 2015
Wemmer J (2009) Where Do They Belong? Giving Victims A Place in the Criminal Justice
Process. Criminal Law Forum 20:395–416
Werner A, Rudy D (2010) Civil Party Representation at the ECCC: Sounding the Retreat in
International Criminal Law? Northwestern University Journal of International Human Rights
8:301–309
Zehr H (1990) Changing Lenses: A New Focus for Crime and Justice. Herald Press, Scottdale
Chapter 20
Legal Developments of Civil Party
Participation at the ECCC
Ignaz Stegmiller
Abstract For the first time in the history of international criminal justice, v ictims
of mass crimes have been granted the status of so-called ‘civil parties’ at the
ECCC. This status grants victims—at least theoretically—the right to participate
in the proceedings as a formal party with broad participatory rights similar to those
of the defence and the prosecution. While the ECCC is exemplary in how it has
addressed the issue of victims’ participation, practical necessities and judicial scep-
ticism have led to significant changes in the civil party mechanism and continu-
ously constrained participatory rights. First, changes in the ECCC’s Internal Rules
have significantly altered the original civil party mechanism and led to a form of
victim participation similar to the one practised at the ICC, thus departing from the
true meaning of a partie civile. Judicial decisions by the ECCC’s judges, as well as
changes in the Internal Rules, have abrogated the strong civil party mechanism that
was originally anticipated in Cambodian criminal procedure law. Second, the prac-
tical challenges surrounding victim participation have been enormous. All these
efforts notwithstanding, only political willingness and a Cambodian discussion on
how to deal with the vast number of perpetrators beyond a handful of criminal tri-
als can lead to a process of coming to terms with one’s past.
Keywords Civil parties · Legal developments · Victim participation · Civil

society · Victim support section (VSS) · Outreach
The author is Coordinator for the International Programmes of the Faculty of Law, Franz von
Liszt Institute for International and Comparative Law, Justus Liebig Universität Gießen.
This chapter is an updated version of my previous publication: Stegmiller 2014, 465–477,
Copyright © Foundation of the Leiden Journal of International Law 2014.
I. Stegmiller (*)
Justus Liebig University, Giessen, Germany
e-mail: ignaz.stegmiller@recht.uni-giessen.de

DOI 10.1007/978-94-6265-105-0_20
536 I. Stegmiller
Contents
20.1 Introduction........................................................................................................................ 534
20.2 The Legal Basis for Civil Party Participation.................................................................... 536
20.3 Civil Society Support to the ECCC’s Victim Participation Regime.................................. 542
20.4 Conclusion......................................................................................................................... 544
References................................................................................................................................... 547
20.1 Introduction
The ECCC constitutes a so-called hybrid tribunal, co-founded by the United

Nations and the Cambodian government by a bilateral agreement.1 The ECCC was
created in 2003 to bring to trial (i) senior leaders of Democratic Kampuchea and
(ii) those who were most responsible for the crimes and serious violations of
Cambodian laws related to crimes, international humanitarian law and custom, and
international conventions recognized by Cambodia, that were committed during
the period from 17 April 1975 to 6 January 1979.2 The jurisdictional mandate is
constrained by these personal, territorial and temporal parameters. Moreover, its
subject matter jurisdiction is limited to selected international crimes (genocide;
crimes against humanity; war crimes; destruction of cultural property), and some
crimes under Cambodian law (murder; torture; religious persecution).
The ECCC is dealing with four cases: Case 001 (completed), Case 002 (judg-
ment with regard to segment 002/01), Case 003, and Case 004. In the contribution
at hand, the main focus lies on the legal developments of cases 001 and 002
regarding victim participation and how Civil Party Participation has been continu-
ously undermined. Coming to the ECCC’s cases one-by-one, the Court has faced
allegations of political interference reaching a negative peak with regard to Cases
003 and 004 and a media battle between the (national and international)
Co-Investigating Judges.3 In these two cases, the identities of the suspects remain
under seal, and there has been very little progress for several years now, although a
1Agreement between the United Nations and the Royal Government of Cambodia for the pros-
ecution of crimes committed during the period of Democratic Kampuchea, 6 June 2003.
2Article 2 new Law on the Establishment of the Extraordinary Chambers in the Courts of
Cambodia, NS/RKM/1004/006, 27 October 2014.

3For a comprehensive report see Open Society Justice Initiative (OSJI), ‘The Future of Cases
003/004 at the Extraordinary Chambers in the Courts of Cambodia’, October 2012, available at
http://www.soros.org/publications/future-cases-003-and-004-extraordinary-chambers-courts-cam-
bodia (visited 15 June 2015); see also the Press Releases by the Cambodian Human Rights Action
Committee (CHRAC), available at http://www.chrac.org/eng/index.php?page=chrac_press_releases
(visited 15 June 2015). On the ECCC’s perception J. Wallace, ‘Justice in the dock at Khmer Rouge
Trials’, 30 September 2012, Al Jazeera, available at http://www.aljazeera.com/indepth/features/
2012/09/2012925141556917463.html (visited 15 June 2015); see also Gillison 2012.
20 Legal Developments of Civil Party Participation at the ECCC 537
new Investigative Judge has been sworn in.4 Due to the limited legal progress and
the infantile stage of these cases, they will not be included in the assessment at
hand.
Case 002 is factually and legally complex and involves the two remaining
accused named Nuon Chea and Khieu Samphan.5 A first verdict was issued on 7
August 2014, sentencing the two Accused to life imprisonment for crimes against
humanity.6 The formerly co-accused Ieng Thirith was released after a decision by
the Trial Chamber, finding her unfit to stand trial,7 and proceedings against the for-
merly co-accused Ieng Sary were terminated on 14 March 2013, following his
death the same day.8 In Case 002, a total of 3,866 victims were admitted as Civil
Parties,9 and due to this high number the Judges designed a new concept of victim
participation through a revision of the Internal Rules.10 Section 20.2 will deal with
this revised scheme in more detail, as it is relevant for understanding the restric-
tions imposed on Civil Parties and their legal representatives/counsel and the
(inherent) limited possibilities within criminal trials to provide for meaningful
participation.11
Case 001 against Kaing Guek Eav, alias Duch, resulted in the ECCC’s first ver-
dict by the Trial Chamber on 26 July 2010, handing down a 35-year sentence.12
On 3 February 2012 the Supreme Court Chamber granted the appeal by the
4Judge Mark Brian Harmon has been sworn in on 26 October 2012, available at http://www.eccc.
gov.kh/en/articles/mark-harmon-sworn-international-co-investigating-judge (visited 15 June
2015), and there might finally be some movement regarding these cases.
5For more information on the on-going trial, available at http://www.eccc.gov.kh/en/case/topic/2

2014.
7Decision of reassessment of accused Ieng Thirith’s fitness to stand trial following
Supreme Court Decision of 13 December 2011, Nuon Chea and others (002/19-09-2007/
ECCC-E138/1/10), Trial Chamber, 13 September 2012.
8Available online at http://www.eccc.gov.kh/en/indicted-person/ieng-sary (visited 15 June 2015).
9ECCC, Court Report, Issue 39, August 2011, Reaching out to newly admitted Civil Parties,
at 1, and Court Report, Issue 38, July 2011, at 6, available at http://www.eccc.gov.kh/en/

public-affair/publication (visited 15 June 2015); Decision on Appeals against Orders of the
Co-Investigating Judges on the Admissibility of Civil Party Applications, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-D404/2/4), Pre-Trial Chamber, 24 June 2011, at 60 et seq.; see also
Kirchenbauer et al. 2013, at 7 and 18.
10Rules 12, 12bis, 12ter, 23, 23bis, 23ter, 23quater, and 23quinquies ECCC Internal Rules (Rev.
8), 3 August 2011. Critical on the new mechanism Studzinsky 2011, at 889–890; Werner and
Rudy 2010, at 306.
11Meaningful participation encompasses (i) being properly and continuously informed, (ii) being
enabled to take informed decisions and (iii) getting involved by using the full range of participa-
tion rights; see Studzinsky 2013, at 184 et seq.
2012.
538 I. Stegmiller
Prosecution and increased the sentence to life imprisonment.13 Without going into
all the details of this judgment,14 two issues are worth being mentioned: (i) the
case against Kaing Guek Eav, alias Duch, marks the first trial in international crim-
inal law in which victims were able to participate as civil parties,15 and the term
Civil Party implicitly creates expectations of a more victim-centered approach
with strong participatory rights; (ii) however, during the process, civil participatory
rights were continuously curtailed—a trend that continued in Case 002—and the
requests for reparations were almost entirely rejected by the Trial Chamber and
this judgment was upheld on appeal by the Supreme Court Chamber.16
Bearing in mind the limited scope of the contribution at hand, the focus lies
principally on victim’s participation in the legal forum of ECCC trials. For this
reason, Sect. 20.2 deals with the legal setting of Civil Party Participation at the
ECCC and its development in mentioned cases 001 and 002, and Sect. 20.3 pre-
sents a brief overview of the implementation of Civil Party Participation through
NGO activities. Based on the description of victim participation in the legal arena
of the ECCC and touching upon non-legal options, the author concludes by raising
questions relating to the benefit of victim participation and its future (Sect. 20.4).
20.2 The Legal Basis for Civil Party Participation
The ECCC foresees that victims can participate as Civil Parties, granting them full
rights in Rule 23 Internal Rules.17 As the ECCC is integrated in the Cambodian
court structure, the Rules regarding Civil Party Participation of the Cambodian
Criminal Procedure Code should apply first, and the Rules are thought to comple-
ment this procedure and fill in the gaps.18 However, the Pre-Trial Chamber
13Appeal Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F28), Supreme Court

Chamber, 3 February 2012.
14It is worthy to note that that all parties (Accused, Prosecution, and Civil Parties) appealed. The
accused made a challenge against the jurisdiction of the ECCC, the Prosecution appealed for
increasing the sentence and for altering his conviction for crimes against humanity, and the Civil
Parties appealed against the rejection of numerous Civil Party applications and also requested
reparations that had been denied by the Trial Chamber.
1590 Applicants participated in the trial and were granted Civil Party status or interim Civil Party
status by the Trial Chamber. Later the Trial Chamber rejected 24 Civil Parties within its judg-
ment. On appeal 10 more individuals were admitted by the Supreme Court Chamber, cf. Appeal
Judgment Case 001, supra note 14, §§ 535 et seq.; in more detail Studzinsky 2013, at 887–888;
ADHOC Baseline Study, supra note 10, at 3–4.
16Appeal Judgment, supra note 14, §§ 630 et seq., § 717.
17Internal Rules refers to the ECCC Internal Rules. Hereinafter, all Rules within this article with-
out further indication are those of the ECCC Internal Rules, Revision 8, supra note 10.
18Code of Criminal Procedure of the Kingdom of Cambodia, Khmer—English Translation,
September 2008, available at http://cambodia.ohchr.org/klc_pages/KLC_files/section_011/S11_

CriminalProcedureCode2007E.pdf (visited 15 June 2015). Interestingly, the Cambodian Criminal
reversed this order and held that the Internal Rules constitute “the primary instru-
ment to which reference should be made in determining procedures before the
ECCC”.19 At the outset, it should be noted that Rule 2320 broadly states that the
purpose of Civil Party action is to participate in criminal proceedings by support-
ing the prosecution, and that victims can seek collective and moral reparations. A
first version of Rule 12 further regulated that a Victims Unit (VU) assists the vic-
tims in submitting Civil Party applications. In the meantime, these rudimentary
Rules were revised eight times by the Judges,21 and have led to a whole compila-
tion of Rules (12, 12bis, 12ter, 23, 23bis, 23ter, 23quater, and 23quinquies).22
Further, the ECCC limited the participatory rights through jurisprudence. The
ECCC’s legal developments can thus be circumscribed by two tendencies: increas-
ing normative regulation and juridical restraint.
With regard to Civil Party Participation in practice, three important domains
can be distinguished: (i) admissibility criteria and procedure, (ii) participatory
rights in the trial proceedings, and (iii) the right to reparation(s). The author will
only touch briefly upon admissibility and then focus on participatory rights and
Civil Party representation. Although the issue of reparations would definitely have
been worth addressing, it however would exceed the scope of this contribution.
Footnote 18 (Continued)
Procedure cannot be found on the homepage of the Court under “Legal documents” although it is the
basis and first source according to Article 12 of the Agreement on the ECCC and Articles 20 new,
23 new and 33 new of the Law on the Establishment of the ECCC as amended, 27 October 2004,
available at http://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_
Oct_2004_Eng.pdf (visited 15 June 2015). In this regard, Article 12(1) Agreement on the ECCC states:
The procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal
with a particular matter, and if the existing procedures do 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.
19Decision against Nuon Chea’s Appeal against Order refusing Request for Annulment, Nuon
Chea and others (002/19-09-2007/ECCC-D55/I/8), Pre-Trial Chamber, 26 August 2008, §§

14–15. An appeal against this decision was not successful, Civil Party Co-Lawyers’ Joint Request
for Reconsideration of the Pre-Trial Chamber’s assessment of the legal status of the Internal
Rules in the Decision on Nuon Chea’s Appeal against Order refusing Request for Annulment,
Nuon Chea and others (002/19-09-2007/ECCC-D55/I/8), Pre-Trial Chamber, 13 October 2008.
20Internal Rules, Original version as of 12 June 2007.
21Revisions of the Internal Rules take place at all International(ized) Tribunals and derive from
a common law understanding as ordinary procedural provisions governing the internal work
process. For the sake of efficiency and speeding up the proceedings, they can be amended by
a Plenary of the Judges. For example, the International Criminal Tribunal for the Former
Yugoslavia revised its Rules of Procedure and Evidence over 40 times. However, there must be a
certain degree of consistency and fundamental procedural rights cannot be abrogated.
22The amendments of the Internal Rules are problematic because the preamble of the Rules reit-
erates that their purpose is to consolidate applicable Cambodian procedure for procedures before
the ECCC. Through the amendments of the rules the Judges supposedly abrogated existing
Cambodian procedures and developed a new system of victim participation that departs from the
existing—and preceding!—Cambodian system of Civil Party participation.
540 I. Stegmiller
The criteria for admissibility of Civil Parties as spelled out in Rule 23bis (1),23
include the following elements:
• The existence of a causal link between the charged crimes and the injury24;
• Injury;
• Proof of identification;
• Level of proof (“more likely than not to be true”).25
Injury must be personal, but not necessarily direct, and the “very nature of the
societal and cultural context at the time when the alleged crimes occurred requires
another and wider consideration of the matter of victimization”.26 In general, the
Rules for admissibility have evolved over time alongside the trials, and were rather
unclear at the beginning and in addition were applied differently by the Office of
the Co-Investigating Judges, the Pre-Trial Chamber and the Trial Chamber.
Coming to the essential participatory rights, earlier in trial proceedings the Pre-
Trial Chamber interpreted Rule 23(1) as providing for participation “in all stages
of criminal proceedings” and that Civil Parties have “active rights to participate
starting from the investigating stage of the proceedings”.27 On the basis of this
statement expressed by the Pre-Trial Chamber and given the broad phrasing of
Rule 23, one would expect strong rights for Civil Parties to engage in proceedings.
However, once the number of Civil Parties increased, mechanisms were adopted to
“streamline”—in the words of the Judges—their participation. Civil Parties cannot
address the Chamber directly during the trial stage anymore, but must be repre-
sented by lawyers and their rights can only be exercised through the lawyer.28 In
cases 001 and 002, Civil Parties were excluded from the opening statement or
23Rule 23bis (1) ECCC Internal Rules reads:

In order for Civil Party action to be admissible, the Civil Party applicant shall:
(a) be clearly identified; and
(b) demonstrate as a direct consequence of at least one of the crimes alleged against the Charged
Person, that he or she has in fact suffered physical, material or psychological injury upon which a
claim of collective and moral reparation might be based.
When considering the admissibility of the Civil Party application, the Co-Investigating Judges
shall be satisfied that facts alleged in support of the application are more likely than not to be
true.
24In an earlier version of the Internal Rules this link was not required. It was only required to suf-
fer harm from a crime under the jurisdiction of the court, which is a much broader requirement.
25Decision, supra note 9, §§ 56–57.
26Decision, supra note 26, § 86. The Office of the Co-Investigating Judges had earlier taken a
narrow approach and rejected 48 % of Civil Party applications in Case 002, but the Pre-Trial
Chamber overruled this standard and took the quoted broader approach.
27Decision of Civil Party Participation in Provisional Detention Appeals, Nuon Chea and others
(002/19-09-2007/ECCC-C11/53), Pre-Trial Chamber, 20 March 2008, § 36. Contrary, advising

against Civil Party participation during the hearing of provisional detention, Amicus Brief Case
002, Amicus Brief by C. Safferling on the issue of Civil Party participation, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-C11/39), Pre-Trial Chamber, 20 February 2008.
28Rule 23ter (1) and (2) ECCC Internal Rules.
brief preliminary remarks respectively,29 and in Case 001 they were also denied to
make any submissions relevant to sentencing.30 In the latter decision, the Trial
Chamber excluded Civil Parties proprio motu from questioning character wit-
nesses, the Accused, and experts who had examined the Accused.31 Most impor-
tantly, the amended version of Rule 23 (3) of the ECCC’s Internal Rules states that
Civil Parties can only participate as a “consolidated group” once the trial stage is
reached, and that Civil Party Lead Co-Lawyers (CP-LCL) organize this group in
accordance with Rule 12ter. The new representation scheme thus introduces two
novel concepts: (i) one consolidated group of Civil Parties, and (ii) Lead
Co-Lawyers that shall not only coordinate the representation of Civil Parties, but
also represent the interests of the consolidated group although they have no pow-
ers of attorney.32
Two successive Plenary Sessions modified the Rules in November 2009. In the
light of the first trial, the Judges deemed changes necessary to promote more expe-
ditious trial proceedings:
These modifications are designed to meet the requirements of trials of mass crimes and
the specific Cambodian context and to ensure that ECCC proceedings respond more fully
29Rule 89bis (2) ECCC Internal Rules foresees opening statements by the Co-Prosecutors and a
response by the Accused. This Rule deviates from the Cambodian Procedure Code, which does
not mention any opening statement, being in accordance with Civil Law practice. The requests of
Civil Parties to be allowed to make an opening statement in Case 001 and to submit preliminary
remarks in Case 002 were rejected. The Trial Chamber ruled that this is because Civil Parties
are not mentioned in Rule 89bis and neither in the Cambodian Procedure Code, omitting that
according to domestic law no party has the right to an opening statement. With regard to case
001, Decision on the request of the co-lawyers for civil parties group 2 to make an opening state-
ment during the substantive hearing, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E23/4),
27 March 2009. The—publically available—request can presently not be found on the website of
the ECCC, but a copy is on file with the author: Urgent request of Co-Lawyers for Civil Parties
concerning their right to submit an opening statement during the substantive hearing, Kaing Guek
Eav (Duch) (001/18-07-2007/ECCC-E23), Trial Chamber, 16 March 2009. Further, with regard
to case 002, see Lead-Co-lawyers’ and Civil Party lawyers’ request to make brief preliminary
remarks on behalf of Civil Parties after co-prosecutors’ opening statement, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E131/4), Lead-Co Lawyers, 2 November 2011; Trial Chamber
response to Lead Co-lawyers and Civil Party lawyers’ request to make a brief preliminary
remarks on behalf of Civil Parties, Nuon Chea and others (002/19-09-2007/ECCC-E131/4/1),
Trial Chamber, 15 November 2011. It should be noted that at the ICC victims ‘may’ submit an
opening statement in accordance with rule ICC Rules of Procedure and Evidence.
30Decision on Civil Party Co-Lawyers’ joint request on the standing of Civil Party
Layers to make submissions on sentencing and directions concerning the question-

ing of the accused, experts and witnesses testifying on character, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-E72/3), Trial Chamber, 9 October 2009.
31Decision Case 001, supra note 31, §§ 40, 48; see also § 25:
‘[…] does not confer a general right of equal participation with the Co-Prosecutors’.
32As a third novel concept, one single claim for collective and moral reparations was introduced
by Rule 23(3) clause 3, 23quinquies ECCC Internal Rules.

542 I. Stegmiller
to the needs of victims. They will also promote greater efficiency in trial management and
the ability of the ECCC to reach a verdict in any future trials.33
The Judges aim was apparently to speed up the trial in Case 002 when they
developed these legal innovations. However, the amended Rules are contradictory
to some extent and it remains unclear what exact role the CP-LCLs should play.
Rule 12ter (1) and (3) refers to the organization and coordination of representa-
tion, while later, in Rule 12ter (5), the core function is “representing the interests
of the consolidated group”. In reality, the CP-LCLs go beyond coordination and
refer to their “ultimate responsibility” to represent the consolidated group under
Rule 12ter (5) (b). Another aspect concerns disputes that will surely arise given
the high number and divergent interests of Civil Parties, Civil Party lawyers34 and
the LCLs. Rule 12ter (3) leaves the consultation process to “internal procedures”
to be determined by the CP-LCLs, but there is a lacuna in the Rules concerning
the settlement of disputes between the CP-LCLs and Civil Party Lawyers.35 A for-
mal complaint procedure for Civil Party Lawyers against decisions taken by the
CP-LCLs should have been provided for in the Rules.
The “consolidated group” is also not further specified. With respect to individ-
ual rights, it will be interesting to see how the Trial Chamber deals with the partic-
ipatory rights of a whole group. By giving the ultimate responsibility to CP-LCL
and at the same time excluding the legitimate Civil Party Lawyers from having a
standing before the Trial Chamber, only CP-LCL submissions and views are
accepted and allowed. While grouping according to common interests and goals is
in general a sound idea, the tension between individual rights of a Civil Party rep-
resented by its chosen counsel vis-à-vis the consolidated group represented by the
LCLs has not been solved by the Rules. It is questionable whether almost 3,866
victims can be reduced to one “common” voice. The Judges supposedly exceeded
the limits of finding a fair balance between the rights of the accused to an expedi-
ent trial and the victims’ rights to meaningful participation, if victims are required
to be grouped in only one consolidated group.36 In trials of mass crimes, alterna-
tive ways of representation are necessary, and organizing victims’ groups might be
the only feasible way in terms of trial management. But there should be room for
divergent views among victims. Unification to one group under constraint and the
33ECCC Press Release, Sixth ECCC Plenary Session concludes, 11 September 2009, available at
http://www.eccc.gov.kh/sites/default/files/media/ECCC_Plenary_11_Sep_2009_Eng.pdf (visited
15 June 2015); further Petit and Ahmed 2010, at 174.
34At present, there are 39 different Civil Party lawyers.
35In a similar vein already Werner and Rudy 2010, at 306; see also FIDH, ‘A new scheme for
Civil Party representation before the ECCC: Victims to bear the highest burden in implementing
the need for an expeditious trial’, 3 March 2010, available at http://www.fidh.org/A-new-scheme-
for-Civil-Party (visited 15 June 2015).
36In contrast, Civil Parties were grouped by the Trial Chamber into four different groups accord-
ing to different legal representatives in Case 001. Moreover, there were only 93 Civil Party appli-
cants in Case 001, whereas Case 002 requires the grouping of 3,866 Civil Parties.
objective to speak with one voice derives from a too narrow understanding of the
role of victims in the courtroom, focusing only on efficiency and expeditious tri-
als. Diverse voices of victims should be heard and respected, and a consensus is
not always possible.37
Moreover, the role of the LCLs should focus on organization, coordination and
advocacy for the Civil Parties. There is no client-attorney relationship between the
LCLs and the individual Civil Parties who have chosen and mandated their personal
counsel. As mentioned above, representation mechanisms are inevitable for trial
management, but they cannot be too restrictive. Therefore, the Judges should have
allowed Civil Party Lawyers and Civil Parties to address the Chamber directly
under certain conditions. In this regard, it is worthy to note that the ICC has taken a
more differentiated approach and allows victims to appear in person following the
procedures under Rule 89 ICC Rules of Procedure and Evidence as distinguished by
participation through a common legal representative.38 The ICC Judges emphasized
that the ICC Statute envisages both direct individual participation and participation
through a common legal representative.39 However, this decision also raises legal
and practical concerns as it deviates from other ICC cases and from individual par-
ticipation. Moreover, the decision lacks clear criteria for “categorizing” victims and
the procedures set forth in rules 85 and 89 ICC Rules of Procedure and Evidence
through the alternative procedure of two victim categories are abrogated.40
In conclusion, neither Civil Party Participation at the ECCC nor Victim
Participation at the ICC is a full success story yet as practical and legal questions
remain unresolved. The participatory rights of the consolidated group in Case 002
are even more questionable since the Trial Chamber split the trial into sections of
the indictment through its severance order.41 Only two forced transfers and one
killing site are dealt with in Case 002/01, which reduces the Civil Parties, who are
eligible in this section to no more than 974. In accordance with the Rules, the
remaining around 70 % are not allowed to participate with full rights in Case
002/01 as they cannot demonstrate a link between their injury/harm suffered and
the crimes/charges at stake. Nevertheless and against the Rules, the Trial Chamber
allowed all Civil Parties to participate in Case 002/01 as a consolidated group.42
The effects will be that their “participation” is merely symbolic and that reparation
37Similarly Mohan 2009, at 26 et seq.

38Redress, ‘Q & A—The landmark ICC decision on Victim’s Representation and Participation
in the Kenya cases’, 18 October 2012, available at http://www.vrwg.org/home/home/post/39-q-
-a---the-landmark-icc-decision-on-victims--representation-and-participation-in-the-kenya-cases
39Decision on victims’ representation and participation, Muthaura and Kenyatta (ICC-01/09-
02/11-498), Trial Chamber, 3 October 2012, § 25.

40Schabas 2012.
41Severance order pursuant to internal rule 89ter, Nuon Chea and others
(002/19-09-2007/ECCC-E124), Trial Chamber, 22 September 2011.
42Order, supra note 42, § 8.
544 I. Stegmiller
claims might not be possible for most Civil Parties because they cannot establish
that they suffered harm from the severed charges.
It is not sincere to pretend to the civil parties to participate in a trial where
those crimes from which they suffered are not dealt with.
To reach an intermediary conclusion, (i) the legal developments at the ECCC
have led to victims’ participation sui generis, and (ii) calling the victims “Civil
Parties” is misleading as they no longer enjoy strong participatory rights. While
Civil Parties are meant to be a full party to the proceedings, the Trial Chamber has
practically limited their rights to a weaker type of victim participation.
20.3 Civil Society Support to the ECCC’s Victim

Participation Regime
For the participation of victims in the ECCC’s proceedings, three practical ways
are possible: (i) through selection by the Trial Chamber to be a witness, (ii) filing a
complaint, and (iii) applying to become a Civil Party.43 Practice Directions by the
ECCC clarified the participation procedure and contain a standardized Victim
Information Form (VIF).44 The mandate for assisting on the forms lies upon the
ECCC’s Victims Support Section (formerly Victims Unit).45 The VIFs are pro-
cessed within the VSS and transmitted to the appropriate office (Office of the
Co-Prosecutors or the Co-Investigating Judges). As outlined above (Sect. 20.2),
legal representation is then organized by the ECCC in a scheme that has evolved
over time. With more than 8,000 complaints and Civil Party applications received
by the VSS,46 the workload was enormous. Only with the support of civil society
organizations and innovative support schemes on all levels, it was possible to
establish coordinated Civil Party Participation. However, it remains a challenge to
regularly and properly inform a huge number of Civil Parties, but even more to
consult with them, get their informed instructions and thus to get them involved.
It is practically impossible that all victims participate in the courtroom in the
same manner due to time constraints. Due to their complexity, international crimi-
nal trials already consume many years until a verdict can be reached, and thus
ones needs to develop a comprehensive system. To provide an example, the
43First CHRAC Monitoring Report, ‘Victim Participation in the Extraordinary Chamber in
the Courts of Cambodia’, 26 November 2008, at 3, available at http://www.chrac.org/eng/

index.php?page=chrac_reports (visited 15 June 2015).
44Practice Directions on Victim Participation, Rev.1, 27 October 2008.
45Rule 12bis ECCC Internal Rules and Article 1.2 of the ECCC Practice Directions on Victim
Participation.
46Third CHRAC Monitoring Report, ‘Victim Participation in the Extraordinary Chamber in
the Courts of Cambodia’, 30 November 2010, at 3, available at http://www.chrac.org/eng/

index.php?page=chrac_reports (visited 15 June 2015).
Cambodian Human Rights and Development Association (ADHOC) made use of

its nation-wide structure and established a Civil Party Representatives Scheme to
facilitate more active participation.47 This mechanism foresees 122 Civil Party
Representatives in different Cambodian regions. The Representatives are desig-
nated “Focal Persons” and ensure a communication in two directions: Firstly, they
are more actively engaged in attending the court proceedings and are trained on
legal matters on a regular basis. Secondly, they share their knowledge with the
remaining Civil Parties in their region. The goal is to spread the information
broadly and to engage and empower more Civil Parties.48
Without the NGOs’ activities the Civil Party mechanism would not have been
used by many victims and a large number—especially in the provinces—would
not have been reached. NGOs informed the public about the court proceedings
through distribution of newsletters, publications, radio shows, films and commu-
nity-based outreach events.49 Besides outreach, NGOs also ensured the submis-
sion of Civil Party applications and assisted the victims throughout the process. In
contrast, the activities by the ECCC/VSS only developed over time and were not
in place at the beginning. There was initially insufficient funding and victim sup-
port was established at a later stage.50 NGO activities assisted in filling the gaps,
and the main practical stages of the Civil Party Participation process can be sum-
marized as the following ones:
• Outreach to potential Civil Parties;
• Submission of Civil Party applications;
• Processing of forms;
• Finding legal representation;
• Attending the trial;
• Psychological support;
• Communication.51
Other tribunals and the ICC can learn from the practical hurdles and should set
up an all-embracing system for sufficient support. From a practical perspective,
support requires sufficient funding and planned activities inside and outside the
court(room). This demonstrates that victim participation is not limited to the court-
room, but non-judicial measures play a vital role, if not the most important role, to
empower victims. Only then meaningful participation can be achieved.
47ADHOC assists almost 50 % of the Civil Parties in Case 002 outside the courtroom, logisti-
cally and administratively, see ADHOC Baseline Study, supra note 10, at 8.
48In more detail, ADHOC Baseline Study, supra note 10, at 9, 22 et seq.
49An overview of most NGO activities is given by CHRAC in the Khmer Rouge Tribunal
(KRT) Watch Bulletin, ‘An Overview of Civil Society Roles of Civil Society in the Process
of Transitional Justice and Reconciliation in Cambodia’, Issue 1, April 2012, available at
http://www.chrac.org/eng/index.php?page=chrac_reports (visited 15 June 2015).
50Herman 2010, at 5.
51Herman 2010, at 3–4.
546 I. Stegmiller
20.4 Conclusion
The outcome of Case 001 and the new participation scheme of Case 002 men-
tioned above lead us to one fundamental question: Is it possible to contribute to
the reconciliation process through these trials, and how can victims be included in
a meaningful way into these legalistic and formalized procedures? Hand-in-hand
with this leading question, we must think about purposes of punishment and dif-
ferent understandings of justice: are international criminal trials purely métiers
légaux, based on a retributive understanding of justice, or can we integrate other
aspects, such as reconciliation?
The author’s hypothesis is that broad victim participation as parties in criminal
trials is difficult to reconcile with the focus on perpetrators and to prove their guilt
beyond reasonable doubt. Moreover, some judicial actors (Judges, Prosecutors,
Defense and Civil Party Lawyers) within this legal arena have a specific, applica-
tion-oriented understanding of justice, which affects their decisions and makes it
very difficult to broaden the scope of criminal-law based tribunals. Therefore, non-
judicial mechanisms are always needed to complement trials, allowing, for exam-
ple, for a greater visibility of victims.
Possibilities within trials are limited by the legal setting. As the main purpose
of any criminal trial is the determination of guilt of the accused and the goal to
end impunity, trials have to be conducted in a timely manner, based on an eviden-
tiary assessment. Judges have to strike the correct balance between safeguarding
the rights of the accused and allowing victims to participate in the proceedings.
Criminal tribunals necessarily have limitations due to various factors, such as
their (i) budget, (ii) mandate, (iii) structure, (iv) jurisdiction, and (v) extrajudicial
aspects (background of personnel, political agenda, etc.).
Having said so, another important aspect concerns the narrow understanding of
justice by key actors that operate the process, and it is difficult, if not impossible,
to change their attitude. I will give two examples to illustrate how the ECCC has
taken this path, excluding alternative purposes of criminal trials other than retribu-
tion and expedient trials:
First, while a combination of retributive and restorative mechanisms is reflected
in the Court’s design and procedural framework, including for example Civil Party
Participation with the aim to create more visibility and to realize a common (inter-
national) standard for victim participation,52 the judicial practice outlined above
has taken a different avenue. Civil Party Participation at the ECCC has arrived at
weak victim participation sui generis, limiting the rights of the Civil Parties signif-
icantly, and should not be labeled “Civil Party” participation anymore.53 One
52Jasiniand Phan 2011, at 385, 387.

53The term ‘Civil Party participation’ implies that the victim is a full party to the proceedings with
extensive rights to make use of its participation through oral statements and filings. However, at the
ECCC there has been a steady erosion of Civil Party participation and representation rights, cf. J.
Wallace, ‘Losing Civil Parties in Cambodia’, Radio Netherlands Worldwide, 18 January 2012, avail-
able at http://www.cambodiatribunal.org/sites/default/files/news/Losing%20Civil%20Parties%20
in%20Cambodia.pdf (visited 15 June 2015).
might agree with the Trial Chamber that some limitations are inherent to the
nature of criminal proceedings,54 but these should have been taken into account
when designing Civil Party Participation at the outset. Otherwise, high expecta-
tions are failed, and changing the rules in the middle of the game creates the per-
ception of injustice from the victims’ point of view.
Second, it can be demonstrated by the Kaing Guek Eav sentence that retributive
understandings of justice prevail in criminal trial settings, and the benefit for rec-
onciliation is questionable. The accused received the highest possible sentence,
whereby, from the author’s point of view, considerable mitigating circumstances
were not adequately taken into account.55 With regard to the high sentence, it was
the author’s impression from attending the appeal verdict at the premises of the
ECCC that the question of revenge dominated the public opinion and victims’ per-
ceptions,56 as some Civil Parties were very disappointed with the first sentence
handed down by the Trial Chamber, however others were satisfied.57
54Decision, supra note 32, § 13.

55Appeal Judgment, supra note 14, §§ 355 et seq. In particular, the accused (i) cooperated with
the ECCC and ‘assisted in the pursuit of national reconciliation’ (§ 366), (ii) and showed remorse
(§ 369). While one might follow the argumentation of the Supreme Court Chamber in the regard
that ‘the mitigating impact of the foregoing factors is limited at best’, and acknowledge the
aggravating circumstances and magnitude of the crimes (§ 371), it is doubtful that the highest
possible sentence is appropriate. Given the fact that the accused was also illegally detained by
the Cambodian Military Court between 10 May 1999 and 30 July 2007, which the Trial Chamber
took into account and reduced the sentence by five years, the message by the Supreme Court
Chamber vis-à-vis human rights and illegal detention is not a positive one. Contrary, Ohlin 2011,
2012, on whose retributive considerations and sentencing theory the Supreme Court Chamber
partly relied. While I agree with Ohlin to the extent that ICL sentencing needs a coherent theory,
this theory cannot be based solely on retribution, but must take into account utilitarian theories.
Ohlin’s one-sided approach leads to unbalanced, high sentences as mitigating factors will not
be taken into account and perpetrators—no matter whether they cooperate, show remorse, etc.
and disregarding their position and role—will always receive sentences at the very high end of
the scale due to the core crimes they committed. Last but not least, international criminal tribu-
nals are not meant to punish perpetrators as revenge, but should assist in promoting international
peace and collective security through rebuilding society and reconciliation. See further Ambos
2002, at 312 et seq.
56For similar experiences, regarding the first verdict of the Trial Chamber, see Tillier 2011; S.
Mydans, ‘Anger in Cambodia over Khmer Rouge Sentence’, New York Times, 26 July 2010,
available online at http://www.nytimes.com/2010/07/27/world/asia/27cambodia.html?_r=0 (vis-
ited 15 June 2015).
57Chum Mey, a successful Civil Party in Case 001, expressed his disappointment about the Trial
Chamber’s verdict: ‘We are victims two times, once in the Khmer Rouge and now once again’,
cf. S. Mydans, ‘Anger in Cambodia over Khmer Rouge Sentence’, supra note 57; see also OSJI,
‘Recent Developments at the Extraordinary Chambers in the Courts of Cambodia’, February
2012, at 7, available at http://www.soros.org/sites/default/files/cambodia-eccc-20120223.pdf
(visited 15 June 2015). In this context, it needs to be mentioned that Chum Mey himself was a
low-level Khmer Rouge cadre. Many perpetrators later became victims themselves, and a clear
distinction of categories, such as (i) perpetrator, as opposed to (ii) victim, is not that easy in the
Cambodian context; see inter alia Try and Sim 2001. Other Civil Parties were more satisfied with
the conviction, for example Vann Nath.
548 I. Stegmiller
In contrast to these restrictive legal developments at the ECCC turning to retri-

bution, efficiency and practical necessities as the governing purpose, “justice
should not only address traditional retributive justice, i.e., punishment of the
guilty, but should also provide a measure of restorative justice by, inter alia, allow-
ing victims to participate in the proceedings and by providing compensation to
victims for their injuries.”58 As a matter of fact, the ECCC itself acknowledged
that “the inclusion of Civil Parties in proceedings is in recognition of the stated
pursuit of national reconciliation”.59An inclusion of a victim-centered approach to
justice might leave a real legacy to victims.60 However, the ECCC denied almost
all reparations in Case 001 and continuously restricted the voices of victims in the
courtroom. This trend has increased in Case 002 with the outlined representation
scheme that leaves little room for visibility of Civil Parties. In the end, to put it in
Sá Couto’s words:
[T]hese proceedings remain criminal trials with significant time and logistical constraints,
making it difficult to accommodate the desire of victims to tell their stories or to talk
about their experiences on their own terms.61
For these reasons, victim participation within criminal trials cannot be the only
solution. A comprehensive approach must embrace two layers: (i) the legal arena,
bearing in mind the limited role Civil Parties can play in this setting, and (ii) the
non-legal arena, taking into consideration the socio-cultural setting. With regard
to global justice, the ECCC leaves a positive legacy for Civil Parties insofar as
it was one of the first international(ized) criminal courts that involved them as
actors in the proceedings. Many voices of Civil Parties were heard and they could
actively participate in Case 001. If international justice is regarded as a mechanism
for peace and reconciliation, victims must be included as an actor. Yet, as outlined
above, the ECCC cut back Civil Parties’ rights, and was not able to find a balance
between Civil Parties’ demand for meaningful participation—as opposed to purely
symbolic participation—and the rights of the accused and a fair and impartial trial.
The ECCC, as well as other courts, must try to achieve such a balance, taking into
consideration the following recommendations:
• The Rules on participation and representation for victims have to be clear and
consistent from the beginning and establishment of a court;
• The representation scheme should be improved. In particular, the relationship
between individual rights and group interest has to be defined and there should
be possibilities for individuals to address the court directly and actively (under
pre-defined legal conditions);
58Sá Couto 2012, at 314.

59Decision,supra note 28, § 37; also Decision Case 002, supra note 26, § 65.
60Herman 2010, at 8.
61Sá Couto 2012, at 350.
• The system of a common representative62 needs fine-tuning (selection process;

relationship with mandated lawyers; dispute settlement mechanism); payment
of adequate salaries for Civil Party Lawyers;
• Adequate financial support has to be allocated to the victims’ section and the
lawyers as well as supporting NGOs (outreach);
• Alternative forums for victims outside the courtroom should be taken into
account as complementary mechanisms63 and their funding ought to be
addressed as well.
References
Ambos K (2002) On the rationale of punishment at the domestic and international level. In:
Henzelin M, Roth R (eds), Le Droit Pénal à L’Épreuve de L’Internationalisation, Bruylant,
Genève, pp 305–323
Gillison D (2012) Extraordinary Injustice, The Investigative Fund.
www.theinvestigativefund.org/investigations/international/1612/extraordinary_injustice.
Herman J (2010) Reaching for justice: The participation of victims at the Extraordinary
Chambers in the Courts of Cambodia. www.uel.ac.uk/chrc/publications/documents/CHRCR
eachingforJustice2010.pdf. Accessed 15 June 2015
Jasini R, Phan V (2011) Victim participation at the Extraordinary Chambers in the Courts of
Cambodia: are retributive and restorative principles enhancing the prospect of justice?
Cambridge Review of International Affairs 24:379–401
Mohan M (2009) The paradox of victim-centrism: victim participation at the Khmer Rouge
Tribunal. International Criminal Law Review 9:1–42
Ohlin J (2011) Proportional Sentences at the ICTY. In: Swart B, Sluiter G, Zahar A (eds) The
Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University
Press, Oxford, pp 322–344
Ohlin J (2012) Cambodia Tribunal increases Duch sentence to life. http://opiniojuris.
org/2012/02/06/cambodia-tribunal-increases-duch-sentence-to-life. Accessed 15 June 2015
Petit R, Ahmed A (2010) A review of the jurisprudence of the Khmer Rouge Tribunal.
Northwestern Journal of International Human Rights 8:165–189
Sá Couto S (2012) Victim Participation at the International Criminal Court and the Extraordinary
Chambers in the Courts of Cambodia: A Feminist Project. Michigan Journal of Gender &
Law 18:297–358
Schabas W (2012) Comment on the Victims Decision of Trial Chamber V. http://humanrightsd
octorate.blogspot.de/2012/10/comment-on-victims-decision-of-trial.html. Accessed 15 June
2015
Stegmiller I (2014) Legal Developments in Civil Party Participation at the Extraordinary
Chambers in the Courts of Cambodia. Leiden Journal of International Law 27: 465–477
62The ICC speaks of Common Legal Representative for Victims (CLRV) and the ECCC speaks
of Civil Party Lead Co-Lawyers (CPLCL). Basically, both have the idea of one common repre-
sentative who streamlines the applications and filings of victims.
63In the same vein Mohan 2009, at 43.
550 I. Stegmiller
Studzinsky S (2011) Victim’s participation before the Extraordinary Chambers in the Courts of
Cambodia. Zeitschrift für Internationale Strafrechtsdogmatik 10:887–891
Studzinsky S (2013) Participation Rights of Victims as Civil Parties and the Challenges of Their
Implementation Before the Extraordinary Chambers in the Courts of Cambodia. In Bonacker
T, Safferling C (eds), Victims of International Crimes: An Interdisciplinary Discourse,
T.M.C. Asser Press, The Hague, pp 175–188
Tillier J (2011) The challenges of victim participation in the Extraordinary Chambers in the
Courts of Cambodia. http://cesice.upmf-grenoble.fr/manifestations/the-challenges-of-victim-
participation-in-the-extraordinary-chambers-in-the-courts-of-cambodia-par-justine-tillier-
133429.htm. Accessed 15 June 2015
Try T, Sim S (2001) Victim and Perpetrators? Testimony of Young Khmer Rouge Comrades’.
Documentation Center of Cambodia, Phnom Penh
International Criminal Law? Northwestern Journal of International Human Rights 8:300–309
ANNEX
Law on the Establishment of the Extraordinary Chambers, with inclusion of

amendments 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 PERIOD OF DEMOCRATIC KAMPUCHEA
CHAPTER I
GENERAL PROVISIONS
Article 1
The purpose of this law is to bring 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.
CHAPTER II
COMPETENCE
Article 2 new
Extraordinary Chambers shall be established in the existing court structure,
namely the trial court and the supreme court to bring to trial senior leaders of
Democratic Kampuchea and those who were most responsible for the crimes and
serious violations of Cambodian laws related to crimes, 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.

DOI 10.1007/978-94-6265-105-0
552 ANNEX
Senior leaders of Democratic Kampuchea and those who were most responsible
for the above acts are hereinafter designated as “Suspects”.
Article 3 new
The Extraordinary Chambers shall have the power to bring to trial all Suspects
who committed any of these crimes set forth in the 1956 Penal Code, and which
were committed during the period from 17 April 1975 to 6 January 1979:
• Homicide (Article 501, 503, 504, 505, 506, 507 and 508)
• Torture (Article 500)
• Religious Persecution (Articles 209 and 210)
The statute of limitations set forth in the 1956 Penal Code shall be extended
for an additional 30 years for the crimes enumerated above, which are within the
jurisdiction of the Extraordinary Chambers.
The penalty under Articles 209, 500, 506 and 507 of the 1956 Penal Code shall
be limited to a maximum of life imprisonment, in accordance with Article 32 of the
Constitution of the Kingdom of Cambodia, and as further stipulated in Articles 38
and 39 of this Law.
Article 4
who committed the crimes of genocide as defined in the Convention on the
Prevention and Punishment of the Crime of Genocide of 1948, and which were
committed during the period from 17 April 1975 to 6 January 1979.
The acts of genocide, which have no statute of limitations, mean any acts com-
mitted with the intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, such as:
• killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
• imposing measures intended to prevent births within the group;
• forcibly transferring children from one group to another group.
The following acts shall be punishable under this Article:
• attempts to commit acts of genocide;
• conspiracy to commit acts of genocide;
• participation in acts of genocide.
Article 5
The Extraordinary Chambers shall have the power to bring to trial all Suspects who
committed crimes against humanity during the period 17 April 1975 to 6 January 1979.
ANNEX 553
Crimes against humanity, which have no statute of limitations, are any acts
committed as part of a widespread or systematic attack directed against any civil-
ian 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 inhumane acts.
Article 6
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 com-
mitted during the period 17 April 1975 to 6 January 1979:
• wilful killing;
• torture or inhumane treatment;
• wilfully causing great suffering or serious injury to body or health;
• destruction and serious damage to property, not justified by military necessity
and carried out unlawfully and wantonly;
• compelling a prisoner of war or a civilian to serve in the forces of a hostile
power;
• wilfully depriving a prisoner of war or civilian the rights of fair and regular trial;
• unlawful deportation or transfer or unlawful confinement of a civilian;
• taking civilians as hostages.
Article 7
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, and which were committed during the period from 17
April 1975 to 6 January 1979.
Article 8
most responsible for crimes against internationally protected persons pursuant to
the Vienna Convention of 1961 on Diplomatic Relations, and which were commit-
ted during the period from 17 April 1975 to 6 January 1979.
554 ANNEX
CHAPTER III
COMPOSITION OF THE EXTRAORDINARY CHAMBERS
Article 9 new
The Trial Chamber shall be an Extraordinary Chamber composed of five profes-
sional judges, of whom three are Cambodian judges with one as president, and
two foreign judges; and before which the Co-Prosecutors shall present their cases.
The president shall appoint one or more clerks of the court to participate.
The Supreme Court Chamber, which shall serve as both appellate chamber and
final instance, shall be an Extraordinary Chamber composed of seven judges, of
whom four are Cambodian judges with one as president, and three foreign judges;
and before which the Co-Prosecutors shall present their cases. The president shall
appoint one or more clerks of the court to participate.
CHAPTER IV
APPOINTMENT OF JUDGES
Article 10 new
The judges of the Extraordinary Chambers shall be appointed from among the
currently practicing judges or are additionally appointed in accordance with the
existing procedures for appointment of judges; all of whom shall have high moral
character, a spirit of impartiality and integrity, and experience, particularly in
criminal law or international law, including international humanitarian law and
human rights law.
Judges shall be independent in the performance of their functions, and shall not
accept or seek any instructions from any government or any other source.
Article 11 new
The Supreme Council of the Magistracy shall appoint at least seven Cambodian
judges to act as judges of the Extraordinary Chambers, and shall appoint reserve
judges as needed, and shall also appoint the President of each of the Extraordinary
Chambers from the above Cambodian judges so appointed, in accordance with the
existing procedures for appointment of judges.
The reserve Cambodian judges shall replace the appointed Cambodian judges
in case of their absence. These reserve judges may continue to perform their regu-
lar duties in their respective courts.
The Supreme Council of the Magistracy shall appoint at least five individuals
of foreign nationality to act as foreign judges of the Extraordinary Chambers upon
nomination by the Secretary-General of the United Nations.
The Secretary-General of the United Nations shall submit a list of not less
than seven candidates for foreign judges to the Royal Government of Cambodia,
ANNEX 555
from which the Supreme Council of the Magistracy shall appoint five sitting
judges and at least two reserve judges. In addition to the foreign judges sitting
in the Extraordinary Chambers and present at every stage of the proceedings,
the President of each Chamber may, on a case-by-case basis, designate one or
more reserve foreign judges already appointed by the Supreme Council of the
Magistracy to be present at each stage of the trial, and to replace a foreign judge if
that judge is unable to continue sitting.
Article 12
All judges under this law shall enjoy equal status and conditions of service accord-
ing to each level of the Extraordinary Chambers.
Each judge under this law shall be appointed for the period of these proceedings.
Article 13
Judges shall be assisted by Cambodian and international staff as needed in their
offices.
In choosing staff to serve as assistants and law clerks, the Director of the
Office of Administration shall interview if necessary and, with the approval
of the Cambodian judges by majority vote, hire staff who shall be appointed
by the Royal Government of Cambodia. The Deputy Director of the Office of
Administration shall be responsible for the recruitment and administration of all
international staff. The number of assistants and law clerks shall be chosen in pro-
portion to the Cambodian judges and foreign judges.
Cambodian staff shall be selected from Cambodian civil servants or other quali-
fied nationals of Cambodia, if necessary.
CHAPTER V
DECISIONS OF THE EXTRAORDINARY CHAMBERS
Article 14 new
1. The judges shall attempt to achieve unanimity in their decisions. If this is not
possible, the following shall apply:
a. decision by the Extraordinary Chamber of the trial court shall require the
affirmative vote of at least four judges;
b. decision by the Extraordinary Chamber of the Supreme Court shall
require the affirmative vote of at least five judges.
2. When there is no unanimity, the decision of the Extraordinary Chambers shall
contain the opinions of the majority and the minority.
556 ANNEX
Article 15
The Presidents shall convene the appointed judges at the appropriate time to
proceed with the work of the Extraordinary Chambers.
CHAPTER VI
CO-PROSECUTORS
Article 16
All indictments in the Extraordinary Chambers shall be the responsibility of
two prosecutors, one Cambodian and another foreign, hereinafter referred to
as Co-Prosecutors, who shall work together to prepare indictments against the
Suspects in the Extraordinary Chambers.
Article 17 new
The Co-Prosecutors in the Trial Chamber shall have the right to appeal the verdict
of the Extraordinary Chamber of the trial court.
Article 18 new
The Supreme Council of the Magistracy shall appoint Cambodian prosecutors and
Cambodian reserve prosecutors as necessary from among the Cambodian profes-
sional judges.
The reserve prosecutors shall replace the appointed prosecutors in case of their
absence. These reserve prosecutors may continue to perform their regular duties in
their respective courts.
One foreign prosecutor with the competence to appear in both Extraordinary
Chambers shall be appointed by the Supreme Council of the Magistracy upon
nomination by the Secretary-General of the United Nations.
The Secretary-General of the United Nations shall submit a list of at least two
candidates for foreign Co-Prosecutor to the Royal Government of Cambodia, from
which the Supreme Council of the Magistracy shall appoint one prosecutor and
one reserve prosecutor.
Article 19
The Co-Prosecutors shall be appointed from among those individuals who are
appointed in accordance with the existing procedures for selection of prosecutors
who have high moral character and integrity and who are experienced in the con-
duct of investigations and prosecutions of criminal cases.
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.
ANNEX 557
Article 20 new
The Co-Prosecutors shall prosecute in accordance with existing procedures in
force. If these existing procedures do not deal with a particular matter, or if there
is uncertainty regarding their interpretation or application or if there is a question
regarding their consistency with international standards, the Co-Prosecutors may
seek guidance in procedural rules established at the international level.
In the event of disagreement between the Co-Prosecutors the following shall
apply:
The prosecution shall proceed unless the Co-Prosecutors or one of them
requests within thirty days that the difference shall be settled in accordance with
the following provisions;
The Co-Prosecutors shall submit written statements of facts and the reasons for
their different positions to the Director of the Office of Administration.
The difference shall be settled forthwith by a Pre-Trial Chamber of five judges,
three Cambodian judges appointed by the Supreme Council of the Magistracy, one
of whom shall be President, and two foreign judges appointed by the Supreme
Council of the Magistracy upon nomination by the Secretary-General of the
United Nations. The appointment of the above judges shall follow the provisions
of Article 10 of this Law.
Upon receipt of the statements referred to in the third paragraph, the Director of
the Office of Administration shall immediately convene the Pre-Trial Chamber and
communicate the statements to its members.
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 communi-
cate it to 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
prosecution shall proceed.
In carrying out the prosecution, the Co-Prosecutors may seek the assistance of
the Royal Government of Cambodia if such assistance would be useful to the pros-
ecution, and such assistance shall be provided.
Article 21 new
The Co-Prosecutors under this law shall enjoy equal status and conditions of ser-
vice according to each level of the Extraordinary Chambers.
Each Co-Prosecutor shall be appointed for the period of these proceedings.
In the event of the absence of the foreign Co-Prosecutor, he or she shall be
replaced by the reserve foreign Co-Prosecutor.
558 ANNEX
Article 22 new
Each Co-Prosecutor shall have the right to choose one or more deputy prosecutors
to assist him or her with prosecution before the chambers. Deputy foreign pros-
ecutors shall be appointed by the foreign Co-Prosecutor from a list provided by
the Secretary-General.
The Co-prosecutors shall be assisted by Cambodian and international staff as
needed in their offices. In choosing staff to serve as assistants, the Director of
the Office of Administration shall interview, if necessary, and with the approval
of the Cambodian Co-Prosecutor, hire staff who shall be appointed by the Royal
Government of Cambodia. The Deputy Director of the Office of Administration
shall be responsible for the recruitment and administration of all foreign staff. The
number of assistants shall be chosen in proportion to the Cambodian prosecutors
and foreign prosecutors.
Cambodian staff shall be selected from Cambodian civil servants and, if neces-
sary, other qualified nationals of Cambodia.
CHAPTER VII
INVESTIGATIONS
Article 23 new
All investigations shall be the joint responsibility of two investigating judges,
one Cambodian and another foreign, hereinafter referred to as Co-Investigating
Judges, and shall follow existing procedures in force. If these existing procedures
do not deal with a particular matter, or if there is uncertainty regarding their inter-
pretation or application or if there is a question regarding their consistency with
international standards, the Co-Investigating Judges may seek guidance in proce-
dural rules established at the international level.
In the event of disagreement between the Co-Investigating Judges the following
shall apply:
The investigation shall proceed unless the Co-Investigating Judges or one of
them requests within thirty days that the difference shall be settled in accordance
with the following provisions.
The Co-Investigating Judges shall submit written statements of facts and the
reasons for their different positions to the Director of the Office of Administration.
The difference shall be settled forthwith by the Pre-Trial Chamber referred to in
Article 20.
Upon receipt of the statements referred to in the third paragraph, the Director of
the Office of Administration shall immediately convene the Pre-Trial Chamber and
communicate the statements to its members.
ANNEX 559
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. They shall immediately proceed in accordance
with the decision of the Pre-Trial Chamber. If there is no majority as required for a
decision, the investigation shall proceed.
The Co-Investigating Judges shall conduct investigations on the basis of infor-
mation obtained from any institution, including the Government, United Nations
organs, or non-governmental organizations.
The Co-Investigating Judges shall have the power to question suspects and vic-
tims, to hear witnesses, and to collect evidence, in accordance with existing proce-
dures in force. In the event the Co-Investigating Judges consider it necessary to do
so, they may issue an order requesting the Co-Prosecutors also to interrogate the
witnesses.
In carrying out the investigations, the Co-Investigating Judges may seek the
assistance of the Royal Government of Cambodia, if such assistance would be use-
ful to the investigation, and such assistance shall be provided.
Article 24 new
During the investigation, Suspects shall be unconditionally entitled to assistance of
counsel of their own choosing, and to have legal assistance assigned to them free
of charge if they cannot afford it, as well as the right to interpretation, as neces-
sary, into and from a language they speak and understand.
Article 25
The Co-Investigating Judges shall be appointed from among the currently prac-
ticing judges or are additionally appointed in accordance with the existing proce-
dures for appointment of judges; all of whom shall have high moral character, a
spirit of impartiality and integrity, and experience. They shall be independent in
the performance of their functions and shall not accept or seek instructions from
any government or any other source.
Article 26
The Cambodian Co-Investigating Judge and the reserve Investigating Judges
shall be appointed by the Supreme Council of the Magistracy from among the
Cambodian professional judges.
The reserve Investigating Judges shall replace the appointed Investigating
Judges in case of their absence. These Investigating Judges may continue to per-
form their regular duties in their respective courts.
The Supreme Council of the Magistracy shall appoint the foreign
Co-Investigating Judge for the period of the investigation, upon nomination by the
Secretary-General of the United Nations.
560 ANNEX
The Secretary-General of the United Nations shall submit a list of at least

two candidates for foreign Co-Investigating Judge to the Royal Government of
Cambodia, from which the Supreme Council of the Magistracy shall appoint one
Investigating Judge and one reserve Investigating Judge.
Article 27 new
All Investigating Judges under this law shall enjoy equal status and conditions of
service.
Each Investigating Judge shall be appointed for the period of the investigation.
In the event of the absence of the foreign Co-Investigating Judge, he or she
shall be replaced by the reserve foreign Co-Investigating Judge.
Article 28
The Co-Investigating Judges shall be assisted by Cambodian and international
staff as needed in their offices.
In choosing staff to serve as assistants, the Co-Investigating Judges shall com-
ply with the spirit of the provisions set forth in Article 13 of this law.
CHAPTER VIII
INDIVIDUAL RESPONSIBILITY
Article 29
Any Suspect who planned, instigated, ordered, aided and abetted, or committed
the crimes referred to in article 3 new, 4, 5, 6, 7 and 8 of this law shall be individu-
ally responsible for the crime.
The position or rank of any Suspect shall not relieve such person of criminal
responsibility or mitigate punishment.
The fact that any of the acts referred to in Articles 3 new, 4, 5, 6, 7 and 8 of
this law were committed by a subordinate does not relieve the superior of per-
sonal 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.
The fact that a Suspect acted pursuant to an order of the Government of
Democratic Kampuchea or of a superior shall not relieve the Suspect of individual
criminal responsibility.
ANNEX 561
CHAPTER IX
OFFICE OF ADMINISTRATION
Article 30
The staff of the judges, the investigating judges and prosecutors of the Extraordinary
Chambers shall be supervised by an Office of Administration.
This Office shall have a Cambodian Director, a foreign Deputy Director and
such other staff as necessary.
Article 31 new
The Director of the Office of Administration shall be appointed by the Royal
Government of Cambodia for a two-year term and shall be eligible for reappointment.
The Director of the Office of Administration shall be responsible for the overall
management of the Office of Administration, except in matters that are subject to
United Nations rules and procedures.
The Director of the Office of Administration shall be appointed from among
those with significant experience in court administration and fluency in one of the
foreign languages used in the Extraordinary Chambers, and shall be a person of
high moral character and integrity.
The foreign Deputy Director shall be appointed by the Secretary-General of
the United Nations and assigned by the Royal Government of Cambodia, and
shall be responsible for the recruitment and administration of all international
staff, as required by the foreign components of the Extraordinary Chambers,
the Co-Investigating Judges, the Co-Prosecutors’ Office, and the Office of
Administration. The Deputy Director shall administer the resources provided
through the United Nations Trust Fund.
The Office of Administration shall be assisted by Cambodian and international
staff as necessary. All Cambodian staff of the Office of Administration shall be
appointed by the Royal Government of Cambodia at the request of the Director.
Foreign staff shall be appointed by the Deputy Director.
Cambodian staff shall be selected from Cambodian civil servants and, if neces-
sary, other qualified nationals of Cambodia.
Article 32
All staff assigned to the judges, Co-Investigating Judges, Co-Prosecutors, and
Office of Administration shall enjoy the same working conditions according to
each level of the Extraordinary Chambers.
562 ANNEX
CHAPTER X
TRIAL PROCEEDINGS OF THE EXTRAORDINARY CHAMBERS
Article 33 new
The Extraordinary Chambers of the trial court shall ensure that trials are fair and
expeditious and are conducted in accordance with existing procedures in force,
with full respect for the rights of the accused and for the protection of victims
and witnesses. If these existing procedure do not deal with a particular matter, or
if there is uncertainty regarding their interpretation or application or if there is a
question regarding their consistency with international standard, guidance may be
sought in procedural rules established at the international level.
The Extraordinary Chambers of the trial court 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.
Suspects who have been indicted and arrested shall be brought to the Trial
Chamber according to existing procedures in force. The Royal Government of
Cambodia shall guarantee the security of the Suspects who appear before the
court, and is responsible for taking measures for the arrest of the Suspects pros-
ecuted under this law. Justice police shall be assisted by other law enforcement
elements of the Royal Government of Cambodia, including the armed forces, in
order to ensure that accused persons are brought into custody immediately.
Conditions for the arrest and the custody of the accused shall conform to exist-
ing law in force.
The Court shall provide for the protection of victims and witnesses. Such pro-
tection measures shall include, but not be limited to, the conduct of in camera pro-
ceedings and the protection of the victim’s identity.
Article 34 new
Trials shall be public and open to representatives of foreign States, of the
Secretary-General of the United Nations, of the media and of national and inter-
national non-government organizations unless in exceptional circumstances the
Extraordinary Chambers decide to close the proceedings for good cause in accor-
dance with existing procedures in force where publicity would prejudice the inter-
ests of justice.
Article 35 new
The accused shall be presumed innocent as long as the court has not given its
definitive judgment.
In determining charges against the accused, the accused shall be equally enti-
tled to the following minimum guarantees, in accordance with Article 14 of the
International Covenant on Civil and Political Rights.
ANNEX 563
a. to be informed promptly and in detail in a language that they understand of

the nature and cause of the charge against them;
b. to have adequate time and facilities for the preparation of their defence and to
communicate with counsel of their own choosing;
c. to be tried without delay;
d. to be tried in their own presence and to defend themselves in person or with
the assistance of counsel of their own choosing, to be informed of this right
and to have legal assistance assigned to them free of charge if they do not
have sufficient means to pay for it;
e. to examine evidence against them and obtain the presentation and examina-
tion of evidence on their behalf under the same conditions as evidence against
them;
f. to have the free assistance of an interpreter if the accused cannot understand
or does not speak the language used in the court;
g. not to be compelled to testify against themselves or to confess guilt.
Article 36 new
The Extraordinary Chamber of the Supreme Court shall decide appeals made
by the accused, the victims, or the Co-Prosecutors against the decision of the
Extraordinary Chamber of the trial court. In this case, the Supreme Court Chamber
shall make final decisions on both issues of law and fact, and shall not return the
case to the Extraordinary Chamber of the trial court.
Article 37 new
The provision of Article 33, 34 and 35 shall apply mutatis mutandis in respect of
proceedings before the Extraordinary Chambers of the Supreme Court.
CHAPTER XI
PENALTIES
Article 38
All penalties shall be limited to imprisonment.
Article 39
Those who have committed any crime as provided in Articles 3 new, 4, 5, 6, 7 and
8 shall be sentenced to a prison term from five years to life imprisonment.
In addition to imprisonment, the Extraordinary Chamber of the trial court may
order the confiscation of personal property, money, and real property acquired
unlawfully or by criminal conduct.
The confiscated property shall be returned to the State.
564 ANNEX
CHAPTER XII
AMNESTY AND PARDONS
Article 40 new
The Royal Government of Cambodia shall not request an amnesty or pardon for
any persons who may be investigated for or convicted of crimes referred to in
Articles 3, 4, 5, 6, 7 and 8 of this law. The scope of any amnesty or pardon that
may have been granted prior to the enactment of this Law is a matter to be decided
by the Extraordinary Chambers.
CHAPTER XIII
STATUS, RIGHTS, PRIVILEGES AND IMMUNITIES
Article 41
The foreign judges, the foreign Co-Investigating Judge, the foreign Co-Prosecutor
and the Deputy Director of the Office of Administration, together with their families
forming part of their household, shall enjoy all of the privileges and immunities,
exemptions and facilities accorded to diplomatic agents in accordance with the 1961
Vienna Convention on Diplomatic Relations. Such officials shall enjoy exemption
from taxation in Cambodia on their salaries, emoluments and allowances.
Article 42 new
1. Cambodian judges, the Co-Investigating Judge, the Co-Prosecutor, the
Director of the Office of Administration and 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. Such immunity shall con-
tinue to be accorded after termination of employment with the Extraordinary
Chambers, the Pre-Trial Chamber and the Office of Administration.
2. International personnel shall be accorded in addition:
a. immunity from legal process in respect of words spoken or written and
all acts performed by them in their official capacity. 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 restriction;
d. the right to import free of duties and taxes, except for payment for ser-
vices, their furniture and effects at the time of first taking up their official
duties in Cambodia.
3. The counsel of a suspect or an accused who has been admitted as such by
the Extraordinary Chambers shall not be subjected by the Government to any
measure that may affect the free and independent exercise of his or her func-
tions under the Law on the Establishment of the Extraordinary Chambers.
ANNEX 565
In particular, the counsel shall be accorded:

a. immunity from personal arrest or detention and from seizure of personal
baggage relating to his or her functions in the proceedings;
b. inviolability of all documents relating to the exercise of his or her func-
tions 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 in his or her capacity as counsel. Such
immunity shall continue to be accorded after termination of their func-
tion as counsel of a suspect or accused.
4. The archives of the co-investigating judges, the co-prosecutors, the Extraordinary
Chambers, the Pre-Trial Chamber and the Office of Administration and in gen-
eral all documents and materials made available to, belonging to, or used by
them, wherever located in the Kingdom of Cambodia and by whomsoever held,
shall be inviolable for the duration of the proceedings.
CHAPTER XIV
LOCATION OF THE EXTRAORDINARY CHAMBERS
Article 43 new
The Extraordinary Chambers established in the trial court and the Supreme Court
Chamber shall be located in Phnom Penh.
CHAPTER XV
EXPENSES
Article 44 new
The expenses and salaries of the Extraordinary Chambers shall be as follows:
1. The expenses and salaries of the Cambodian administrative officials and staff,
the Cambodian judges and reserve judges, investigating judges and reserve
investigating judges, and prosecutors and reserve prosecutors shall be borne
by the Cambodian national budget;
2. The expenses of the foreign administrative officials and staff, the foreign
judges, Co-investigating judge and Co-prosecutor sent by the Secretary-
General of the United Nations shall be borne by the United Nations;
3. The defence counsel may receive fees for mounting the defence;
4. The Extraordinary Chambers may receive additional assistance for their
expenses from other voluntary funds contributed by foreign governments,
international institutions, non-governmental organizations, and other persons
wishing to assist the proceedings.
566 ANNEX
CHAPTER XVI
WORKING LANGUAGES
Article 45 new
The official working languages of the Extraordinary Chambers shall be Khmer,
English and French.
CHAPTER XVII
ABSENCE OF FOREIGN JUDGES, INVESTIGATING JUDGES
OR PROSECUTORS
Article 46 new
In order to ensure timely and smooth implementation of this law, in the event
any foreign judges or foreign investigating judges or foreign prosecutors fail or
refuse to participate in the Extraordinary Chambers, the Supreme Council of the
Magistracy shall appoint other judges or investigating judges or prosecutors to
fill any vacancies from the lists of foreign candidates provided for in Article 11,
Article 18, and Article 26. In the event those lists are exhausted, and the
Secretary-General of the United Nations does not supplement the lists with new
candidates, or in the event that the United Nations withdraws its support from
the Extraordinary Chambers, any such vacancies shall be filled by the Supreme
Council of the Magistracy from candidates recommended by the Governments
of Member States of the United Nations or from among other foreign legal
personalities.
If, following such procedures, there are still no foreign judges or foreign
investigating judges or foreign prosecutors participating in the work of the
Extraordinary Chambers and no foreign candidates have been identified to occupy
the vacant positions, then the Supreme Council of the Magistracy may choose
replacement Cambodian judges, investigating judges or prosecutors.
CHAPTER XVIII
EXISTENCE OF THE COURT
Article 47
The Extraordinary Chambers in the courts of Cambodia shall automatically dis-
solve following the definitive conclusion of these proceedings.
ANNEX 567
CHAPTER XIX
AGREEMENT BETWEEN THE UNITED NATIONS AND CAMBODIA
Article 47 bis new

Following its ratification in accordance with the relevant provisions of the law of
Kingdom of Cambodia regarding competence to conclude treaties, the Agreement
between the United Nations and the Royal Government of Cambodia Concerning
the Prosecution under Cambodian Law of Crime Committed during the period of
Democratic Kampuchea, done at Phnom Penh on 6 June 2003, shall apply as
law within the Kingdom of Cambodia.
FINAL PROVISION
Article 48
This law shall be proclaimed as urgent.
Bibliography
Acquaviva G (2008) New Paths in International Criminal Justice? The Internal Rules of the
Cambodian Extraordinary Chambers. Journal of International Criminal Justice 6:129–151
Acquaviva G, Cassese A, Fan M, Whiting A (2011) International Criminal Law: Cases and
Commentary. Oxford University Press, Oxford
Acquaviva G, Combs N, Heikkilä M, Linton S, McDermott Y, Vasiliev S (2013) Trial Process. In:
Sluiter G, Friman H, Linton S, Vasiliev S, Zappalà S (eds) International Criminal Procedure:
Principles and Rules, Oxford University Press, Oxford, pp 489–939
Ainley K (2003) Transitional Justice in Cambodia: The Coincidence of Principle and Power.
In: Jeffrey R (ed) Transitional Justice in the Asia-Pacific, Cambridge University Press,
Cambridge
Akhavan P (2012) Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime.
Cambridge University Press, Cambridge
Alija-Fernández R (2013) Justice for No-Land’s Men? The United States Military Trials against
Spanish Kapos in Mauthausen and Universal Jurisdiction. In: Heller K, Simpson G (eds) The
Hidden Histories of War Crimes Trials, Oxford University Press, Oxford
Alter K (2014) The New Terrain of International Law: Courts, Politics, Rights. Princeton
University Press, Princeton
Ambach P (2006) Die Extraordinary Chambers in the Courts of Cambodia – endlich
Gerechtigkeit? Das lange Tauziehen zwischen den Vereinten Nationen und Kambodscha
um wirkungsvolle internationale Strafgerichtsbarkeit. Humanitäres Völkerrecht -
Informationsschriften 19:168–179
Ambos K (2002) On the rationale of punishment at the domestic and international level. In:
Henzelin M, Roth R (eds), Le Droit Pénal à L’Épreuve de L’Internationalisation, Bruylant,
Genève, 305–323
Ambos K (2009) Amicus Curiae Brief in the Matter of the Co-Prosecutors’ Appeal of the
Closing Order Against Kaing Guek Eav ‘Duch’ Dated 8 August 2008. Criminal Law Forum
20:353–388
Ambos K (2009) The Legal Framework of Transitional Justice: A Systematic Study with
a Special Focus on the Role of the ICC. In: Ambos K, Large J, Wierda M (eds) Building
a Future on Peace and Justice, Studies on Transitional Justice, Conflict Resolution and
Development, Springer-Verlag, Berlin, pp 19–103
Ambos K (2009) The Transnational Use of Torture Evidence. Israel Law Review 42:362–397
Ambos K (2009) What does ‘intent to destroy’ in genocide mean? International Review of the
Red Cross 91:833–858

DOI 10.1007/978-94-6265-105-0
570 Bibliography
Amer R (1989) The General Assembly and the Kampuchean Issue: Intervention, Regime
Recognition and the World Community: 1979–1987. Uppsala University Press, Uppsala
Anderson K (2005) Turning Reconciliation on Its Head: Responding to Sexual Violence Under
the Khmer Rouge. Seattle Journal of Social Justice 3:785–823
Ardema A (2006) The Crimes to be judged by the Extraordinary Chambers. In: Ciorciari J (ed)
The Khmer Rouge Tribunal. Documentation Center of Cambodia, Phnom Penh, pp 57–79
Arendt H (2006) Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Group, New
York
Ascensio, H (2010) Les groupes protégés par la Convention sur le Génocide. In: Yotopoulos-
Marangopoulos A, Pazartzis P (eds) Le génocide revisité/Genocide Revisited, Bruylant,
Athènes/Bruxelles, pp 45–61
Askin K (2013) Treatment of Sexual Violence in Armed Conflicts: A Historical Perspective and the
Way Forward. In: de Brouwer A, Ku C, Römkens R, and van den Herik L (eds) Sexual Violence
as an International Crime: Interdisciplinary Approaches, Intersentia, Antwerp, pp 19–55
Balthazard M (2013) Gender-based Violence During the Khmer Rouge: A Forgotten Issue?
Cambodian Defenders Project, Phnom Penh.
Barnett M, Finnemore M (1999) The Politics, Power and Pathologies of International
Organizations. International Organization 53:699–732
Barria L, Roper S (2010) Mechanisms of Transitional Justice. In: Barria L, Roper S (eds) The
Development of Institutions of Human Rights: A Comparative Study, Palgrave Macmillan,
New York
Bassiouni M C (2013) Introduction to International Criminal Law, 2nd ed. Martinus Nijhoff,
Leiden
Bassiouni M C (1992–1993) Human Rights in the Context of Criminal Justice: Identifying
International Procedural Protections and Equivalent Protection in National Constitutions.
Duke Journal of Comparative and International Law 3:235–297
Bassiouni M C (2008) Principles of Legality in International and Comparative Criminal Law. In:
Bassiouni M C (ed) International Criminal Law, Vol. 1, Sources, Subjects and Contents, 3rd
edn, Martinus Nijhoff Publishers, Leiden, pp 73–105
Bates A (2010) Transitional Justice in Cambodia: Analytical Report. Atlas Project, October 2010
Bentoumi A (1979) Prozeß gegen Pol Pot und Ieng Sary, Report, International Association of
Democratic Lawyers (Internationale Vereinigung Demokratischer Juristen), German transla-
tion for the East German General State Prosecutor
Best G (1984) Civilians in Contemporary Wars. A Problem in Ethics, Law and Fact. Air
University Review 35: 29–40
Bevers J (2009) Der Mann hinter Adenauer, Hans Globkes Aufstieg vom NS-Juristen zur Grauen
Eminenz der Bonner Republik. Christoph Links Verlag, Berlin
Bitti G, Friman H (2001) Participation of Victims in the Proceedings. In: Lee R (ed) The
International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence,
Transnational Publishers, Ardsley, New York, pp 456–474
Boas G, Bischoff J, Reid N (2007) International Criminal Law Practitioner Library, Vol.1, Forms
of Responsibility in International Criminal Law. Cambridge: Cambridge University Press,
Cambridge
Bogdan A (2002) Cumulative Charges, Convictions and Sentencing at the Ad Hoc International
Tribunals for the Former Yugoslavia and Rwanda. Melbourne Journal of International Law
3:1–32
Boister N, Cryer R (2008) The Tokyo International Military Tribunal, 1st ed. Oxford University
Press, Oxford
Boyle D (1999) Quelle justice pour les Khmers Rouges? Revue trimestrielle de droit de l’homme
40:773–826
Boyle D (2002) Establishing the Responsibility of the Khmer Rouge Leadership for International
Crimes. Yearbook of International Humanitarian Law 5:167 - 218
Bibliography 571
Boyle D (2004) Les Nations Unies et le Cambodge, 1979–2003: Autodétermination, démocratie,

justice pénale internationale. Panthéon-Assas Paris University II
Boyle D (2006) The Rights of Victims, Journal of International Criminal Justice 4:307–313
Braaf R (2014) Sexual Violence Against Ethnic Minorities During the Khmer Rouge Regime.
Cambodian Defenders Project, Phnom Penh at 24–31
Brown B (1998) Nationality and Internationality in International Humanitarian Law. Stanford
Burgers J, Danelius H (1988) The United Nations Convention against Torture. Martinus Nijhoff,
Dordrecht
Burwell D (1973–1974) Civilian Protection in Modern Warfare: A Critical Analysis of the
Geneva Civilian Convention of 1949. Virginia Journal of International Law 14:123–150
Cassese A (1999) The Statute of the International Criminal Court: Some Preliminary Reflections.
Cassese A (2009) Amicus Curiae Brief of Professor Antonio Cassese and Members of the Journal
of International Criminal Justice on Joint Criminal Enterprise Doctrine. Criminal Law Forum
20:289–330
Cassese A (2013) Cassese’s International Criminal Law, 3rd ed. Oxford University Press, Oxford
Cayley A (2012) Prosecuting Mass Atrocities at the Extraordinary Chambers in the Courts of
Cambodia (ECCC). Washington University Global Studies Law Review 11:445–459
Center for Law and Globalization (2015) How Are Genocide and Sexual Assault Related?
Cerone J (2009) U.S. Attitudes Toward International Criminal Courts and Tribunals. In: Romano
C (ed) The Sword and the Scales: The United States and International Courts and Tribunals,
Cambridge University Press, New York, pp 131–185
Chandler D (2000) Voices from S-21: Terror and History in Pol Pot’s Secret Prison. Silkworm
Books, Chiang Mai
Chandler D (2009) Cambodia Deals with its Past: Collective Memory, Demonisation and
Induced Amnesia. In: Khazanov A, Payne A (eds) Perpetrators, Accomplices & Victims:
Reckoning with the Past, Routledge, New York, pp 194–205
Charles V (2004) Restorative justice. In: Villa-Vicencio C, Doxander E (ed) Pieces of the Puzzle:
Keywords on reconciliation and transitional justice, Rondebosch, Cape Town, 33–38
Chea L, Smith W (2010) The Early Experience of the Extraordinary Chambers in the Courts
of Cambodia. In: Bellelli, R (ed) International Criminal Justice: Law and Practice from the
Rome Statute to Its Review, Ashgate, Aldershot
Ciorcari J (ed) (2006) The Khmer Rouge Tribunal. Documentation Centre of Cambodia, Phnom
Penh
Ciorciari J, Chang Y (2005) Documenting the Crimes of Democratic Kampuchea. In: Ramji J,
Van Schaack B (eds) Bringing the Khmer Rouge to Justice - Prosecuting Mass Violence
Before the Cambodian Courts, Edwin Mellen Press, Lewiston, New York, pp 222–307
Ciorciari J, Heindel A (2014) Experiments in International Criminal Justice: Lessons from the
Khmer Rouge Tribunal. Michigan Journal of International Law 35:369–442
Ciorciari J, Heindel A (2014) Hybrid Justice: The Extraordinary Chambers in the Courts of
Cambodia. University of Michigan Press, Michigan
Ciorciari J, Ramji-Nogales J (2012) Lessons from Cambodia Experience with Truth and
Reconciliation. Buffalo Human Rights Review 19:193–217
Clarke R (2011) Return to Borkum Island: Extended Joint Criminal Enterprise Responsibility in
the Wake of World War II. Journal of International Criminal Justice 9:839–861
Cohen D (2006) Transitional Justice in Divided Germany After 1945. In Elster J (ed) Retribution
and Reparation in the Transition to Democracy, Cambridge University Press, Cambridge
Conway G (2003) Ne Bis in Idem in International Law. International Criminal Law Review
3:217–244
572 Bibliography
Cook RJ and Cusack S (2010) Gender Stereotyping: Transnational Legal Perspectives. University
of Pennsylvania Press, Philadelphia.
Copelon R (1994) Surfacing Gender: Re-engraving Crimes Against Women in Humanitarian
Law. Hasting’s Women’s Law Journal 5(2): 243–266
Côté L (2006) International Criminal Justice: Tightening up the Rules of the Game. International
Review of the Red Cross 88:133–144
Crowe D (2014) War Crimes, Genocide and Justice: A Global History. Palgrave Macmillan, New
York
Cruvellier T (2014) The Master of Confessions: The Making of a Khmer Rouge Torturer. Harper
Collins Publishers, New York
Cryer R, Friman H, Robinson D, Wilmshurst E (2008) An Introduction to International Criminal
Law and Procedure. Cambridge University Press, Cambridgen
Curley M (2013) Developments in Cambodian Democracy: Democratic Consolidation or
Authoritarian Durability. In: Fung E, Drakeley, S (eds) Democracy in Eastern Asia: Issues,
Problems and Challenges in a Region of Diversity, Routledge, New York, 136–158
Damaška M (2008) Problematic Features of International Criminal Procedure. In: Cassese

A et al. (eds) The Oxford Companion to International Criminal Justice, Oxford University
Press, Oxford, pp 175 et seq.
Damaška M (2008) What is the Point of International Criminal Justice? Chicago—Kent Law
Review 83:329–364
Danieli Y (2006) Reappraising the Nuremberg Trials and Their Legacy: The Role of Victims in
International Law. Cardozo Law Review 27:1633–1649
De Hemptinne J (2007) The Creation of Investigating Chambers at the International Criminal
Court: An Option Worth Pursuing? Journal of International Criminal Justice 5:402–418
De Langis T (2014) This is Now the Most Important Trial in the World: A New Reading of Code
6#, the Rule Against Immoral Offenses Under the Khmer Rouge Regime. Cambodia Law and
Policy Journal 3:61–78
De Langis T, Ye B (2011) Forced Marriages as Mirrors of Cambodian Conflict Transformation.
Peace Review 23(4):469–475
De Nike H (2000) Genocide’s Orphan: The 1979 Trial of Pol Pot and Ieng Sary. In: Ewald U and
Turković K (eds) Large-Scale Victimisation as a Potential Source of Terrorist Activities, IOS
Press, Amsterdam, pp 208–213
De Nike H (2008) East Germany’s Legal Advisor to the 1979 Tribunal in Cambodia, Searching
the Truth. Magazine of the Documentation Centre of Cambodia, Phnom Penh
De Nike H, Quigley J, Robinson K J (2004) Genocide in Cambodia, Documents from the Trial of
Pol Pot and Ieng Sary. University of Pennsylvania Press Philadelphia
Delgado R (2000) Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative
Justice. Stanford Law Review 52:751–757
Diamond A (2011) Victims Once Again? Civil Party Participation Before the Extraordinary
Chambers in the Courts of Cambodia. Rutgers Law Record 38:1–14
Dingwall J (2004) Unlawful Confinement as a War Crime: The Jurisprudence of the Yugoslav
Tribunal and the Common Core of International Humanitarian Law Applicable to
Contemporary Armed Conflicts. Journal of Conflict and Security Law 9:133–179
Dinstein Y (2004) The Conduct of Hostilities under the Law of International Armed Conflict, 1st
ed. Cambridge University Press, Cambridge
Dirks C (2006) Die Verbrechen der Anderen, Auschwitz und der Auschwitzprozess der DDR:
Das Verfahren gegen den KZ-Arzt Dr. Horst Fischer. Ferdinand Schöningh Verlag, Paderborn
Dittrich V (2014) Legacies in the Making: Assessing the Institutionalized Legacy Endeavour of
the Special Court for Sierra Leone. In: Jalloh C (ed) The Sierra Leone Special Court and Its
Legacy: The Impact for Africa and International Criminal Law, Cambridge University Press,
Documentation Center of Cambodia (April 2000) Searching for the Truth, Vol. 4 at 46.
www.d.dccam.org/Projects/Magazines/Previous%20English/Issue04.pdf. Accessed 21 June 2015
Bibliography 573
Documentation Center of Cambodia (February 2000) Searching for the Truth, Vol. 2 at 45.
Documentation Center of Cambodia (January 2000) Searching for the Truth, Vol. 1 at 24.
Documentation Center of Cambodia (March 2001) Searching for the Truth, Vol. 15 at 1. http://www.d.
dccam.org/Projects/Magazines/Previous%20Englis/Issue15.pdf. Accessed 21 June 2015
Donat-Cattin D (1999) Article 68: Protection of Victims and Witnesses and their Participation in
the Proceedings. In: Triffterer O (ed) Commentary on the Rome Statute of the International
Criminal Court, Nomos, Baden-Baden, pp 869–888
Dörr O (2012) Article 31. In: id., Schmalenbach K (eds), Vienna Convention on the Law of
Treaties, A Commentary, Springer, Heidelberg, pp 521–570
Draper G (1976) The Juridical Aspects of Torture. Acta Juridica 221–232
Droege C (2007) In Truth the Leitmotiv: The Prohibition of Torture and other Forms of Ill-
Treatment in International Humanitarian Law. International Review of the Red Cross
89:515–541
Drost P (1959) The Crime of State, Book II, Genocide – United Nations Legislation on
International Criminal Law. A.W. Sythoff, Leyden
Dubler R (2010) Kaing Guek Eav alias Duch, Judgment, ECCC, Case No
001/18-07-2007/ECCC/TC (26 July 2010). Australian International Law Journal 17:247–252
Dugard J (2007) Foreword. In: Boas G, Bischoff J, Reid N, International Criminal Law
Practitioner Library, Vol.1, Forms of Responsibility in International Criminal Law.
Cambridge: Cambridge University Press, Cambrige, pp xiii-xvi
Dürr O (1987) Humanitarian Law of Armed Conflict: Problems of Applicability. Journal of Peace
Research 24:263–273
Dyrchs S (2008) Das hybride Khmer-Rouge-Tribunal: Entstehung, Entwicklung und rechtliche
Grundlagen. Peter Lang Verlag, Frankfurt
Eckelmans F (2012) The ECCC in the context of Cambodian Law. In: Hor P, Kong P, Menzel J
(eds) Introduction to Cambodian Law, Konrad Adenauer Stiftung, Phnom Penh, pp 459–461
Ehlert C (2013) Prosecuting the Destruction of Cultural Property in International Criminal Law
with a Case Study on the Khmer Rouge’s Destruction of Cambodia’s Heritage. Martinus
Nijhoff Publishers, Leiden
Ehteshamul Bari M (2011) Dispensation of Justice by the Extraordinary Chambers in the Courts
of Cambodia: A Critical Appraisal. Journal of East Asia and International Law 4:193–216
Elander M (2013) The Victim’s Address: Expressivism and the Victim at the Extraordinary
Chambers in the Courts of Cambodia. The International Journal of Transitional Justice
7:95–115
Embree E (2012) Historical Testimony Continues as Both the Prosecution and Civil Party
Lawyers Question the Expert, Cambodia Tribunal Monitor. http://www.cambodiatribunal.
org/_archived-site/blog/2012/07/historical-testimony-continues-both-prosecution-and-civil-
party-lawyers-question-expert. Accessed 15 June 2015
Eriksson M (2011) Defining Rape: Emerging Obligations for States under International Law?
Martinus Nijhoff Publishers, Leiden.
Eser A (2009) The ‘Adversarial’ Procedure: A Model Superior to Other Trial Systems in
International Criminal Justice? Reflexions of a Judge. In: Kruessmann T(ed), ICTY: Towards
a Fair Trial?, Intersentia, Antwerp, pp 206–227
Eser A and Burchard C (2006) Interlokales ne bis in idem in Europa? – Von westfälischem
Souveränitätspathos zu europäischem Gemeinschaftsdenken. In: Derra H-J (ed) Freiheit,
Sicherheit und Recht: Festschrift für Jürgen Meyer zum 70. Geburtstag, NOMOS, Baden-
Baden, pp 499–524
Etcheson C (2005) After the Killing Fields- Lessons from the Cambodian Genocide. Texas Tech
University Press, Lubbock
Etcheson C (2006) A ‘Fair and Public Trial’: A Political History of the Extraordinary Chambers.
Open Society Justice Initiative, Phnom Penh, pp 7–24
574 Bibliography
Etcheson C (2014) The Challenges of Transitional Justice in Cambodia. www.mei.edu/content/

challenges-transitional-justice-cambodia. Accessed 15 June 2015
Evans C (2011) A Day on Limitations and Reparations, Cambodia Tribunal Monitor. www.cam
bodiatribunal.org/_archived-site/blog/2011/06/day-limitations-and-reparations. Accessed 15
June 2015
Evans C (2011) They Shall be Heard, Cambodia Tribunal Monitor. www.cambodiatribunal.org/_
archived-site/blog/2011/06/they-shall-be-heard. Accessed 15 June 2015
Fatily S, Poole S, Senghul H (2014) Memory and the Khmer Rouge Tribunal. Cambodia Law
and Policy Journal 1:97–106
Fawthrop T, Jarvis H (2004) Getting away with Genocide – Elusive Justice and the Khmer Rouge
Feierstein D (2012) The Concept of Genocide and the Partial Destruction of the National Group.
http://logosjournal.com/2012/winter_feierstein. Accessed 15 June 2015
Feierstein D (2014) Genocide as Social Practice: Reorganizing Society under the Nazis and
Argentina’s Military Juntas. Rutgers University Press, New Brunswick, New Jersey and
London
Fenrick W (1998) The Development of the Law of Armed Conflict through the Jurisprudence
of the International Criminal Tribunal for the Former Yugoslavia. In: Schmitt M, Green L
(eds) The Law of Armed Conflict: Into the Next Millennium, Naval War College, Newport,
pp 77–118
Fernandez de Gurmendi S (2001) Elaboration of the Rules of Procedure and Evidence. In: Lee
R (ed) The International Criminal Court: Elements of Crimes and Rules of Procedure and
Evidence, Transnational Publishers, Ardsley, New York, pp 235–257
Ferreira M (2013) Genocide, and its definition as the ‘partial elimination of a national group’.
Genocide Studies and Prevention 8:5–19
Findlay T (1995) Cambodia: the Lessons and Legacy of UNTAC. Oxford University Press,
Oxford
Finnemore M, Sikkink K (2001) The Constructivist Research Program in International Relations
and Comparative Politics. Annual Review of Political Science 4:391–416
Forster T (2012) The Khmer Rouge and the Crime of Genocide – Issues of Genocidal Intent With
Regard to the Khmer Rouge Mass Atrocities. Dike Verlag, Zurich/St. Gallen
Foth C (1979) Abschlussbericht zur Ausführung des Auftrages vom 22. Juli bis 19. August
1979 in Vietnam und Kambodscha an das Zentralkomitee der SED. Bundesarchiv (Federal
Archive) DP 3/2228
Foth C (1979) Überlegungen zu weiteren Maßnahmen in Auswertung des Prozesses gegen Pol
Pot und Ieng Sary. Bundesarchiv (Federal Archive), DP 3/2228
Fung S (2013) Severance Order Issues. Khmer Rouge Trial Monitor, 15 October 2015
Gibson K, Rudy D (2009) A New Model of International Criminal Procedure? The Progress of
the Duch Trial at the ECCC. Journal of International Criminal Justice 7:1005–1022
Gillison D (2012) Extraordinary Injustice, The Investigative Fund. www.theinvestigativefund.org/
investigations/international/1612/extraordinary_injustice. Accessed 15 June 2015
Giry S (2014) The Genocide That Wasn’t, The New York Review of Books www.nybooks.com/
blogs/nyrblog/2014/aug/25/khmer-rouge-genocide-wasnt. Accessed 15 June 2015
Gleß S (2007) § 136a. In: Erb V et al. (eds) Löwe-Rosenberg, Die Strafprozessordnung und das
Gerichtsverfassungsgesetz, Großkommentar, 26th ed., vol. 4, de Gruyter, Berlin, pp 580–631
Goodman R (2009) Rationales for Detention: Security Threats and Intelligence Value. In Schmitt
M (ed) The War in Afghanistan: A Legal Analysis, Naval War College, Newport, pp 371–383
Grabenwarter C (2010) Androhung von Folter und faires Strafverfahren – Das (vorläufig) letzte
Wort aus Straßburg. Neue Juristische Wochenschrift 63:3128–3132
Graham D (2005–2006) The Treatment and Interrogation of Prisoners of War and Detainees.
Georgetown Journal of International Law 37:61–93
Bibliography 575
Gray T (2013) Cambodia and the Khmer Rouge Trials in 2012 in Review: Will the Court Survive
2013? Westminster Law Review 2
Greenawalt A (1999) Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation.
Columbia Law Review 99:2259–2294
Gustafson K (2010) ECCC Tackles JCE: An Appraisal of Recent Decisions. Journal of International
Hall J (2009) Court Administration at the ECCC. In: Ciorciari J, Heindel A (eds) On Trial: The
Khmer Rouge Accountability Process, Documentation Center of Cambodia, Phnom Penh,
pp 172–253
14:115–147
Hampson F (1991) The Geneva Conventions and the Detention of Civilians and Alleged
Prisoners of War. Public Law, 507–522
Hannum H (1989) International Law and Cambodian Genocide: The Sounds of Silence. Human
Rights Quarterly 11:82–138
Heder S (2007) Racism, Marxism, Labelling and Genocide in Ben Kiernan’s ‘The Pol Pot
Regime’, The South East Asia Research 5:101–153
Heindel (2013) Supreme Court Chamber Rules that the Trial Chamber Is Inappropriately
Limiting Its Access to Case 002 Information. Cambodia Tribunal Monitor, 13 March 2013
Heindel (2013) Trial Chamber Case 002 Severance Decision Upholds Status Quo. Cambodia
Tribunal Monitor, 29 April 2013
Heindel A (2013) Accused Nuon Chea Argues Severance Is Inconsistent with His Right to
Confrontation. Cambodia Tribunal Monitor, 10 July 2013
Heindel A (2013) Legal Commentary: Co-Prosecutors Request Clarification of the Scope of Case
002/01 Charges. Cambodia Tribunal Monitor, 10 September 2013
Heintze H J (2004) Die Verbrechen der Roten Khmer und die Völkermord-Konvention.
Zeitschrift für Genozidforschung 5:114–126
Heller K (2011) The Nuremberg Military Tribunals and the Origins of International Criminal
Law. Oxford University Press, Oxford
Herman J (2010) Reaching for justice: The participation of victims at the Extraordinary
Chambers in the Courts of Cambodia. www.uel.ac.uk/chrc/publications/documents/CHRCR
eachingforJustice2010.pdf. Accessed 15 June 2015
Hoven E (2014) Civil Party Participation in Trials of Mass Crimes: A Qualitative Study at the
12:81–108
Ingelse C (2001) The UN Committee against Torture, An Assessment. Kluwer Law International,
The Hague
Jackson J, Brunger Y (2014) Fragmentation and Harmonization in the Development of

Evidentiary Practices in International Criminal Tribunals. In: Van Sliedregt E, Vasiliev S
(eds) Pluralism in International Criminal Law, Oxford University Press, Oxford, pp 159–186
Jain N (2014) Perpetrators and Accessories in International Criminal Law: Individual Modes of
Responsibility for Collective Crimes. Hart, Oxford
Jasini R, Phan V (2011) Victim participation at the Extraordinary Chambers in the Courts of
Cambodia: are retributive and restorative principles enhancing the prospect of justice?
Cambridge Review of International Affairs 24:379–401
Jordash W, Van Tuyl P (2010) Failure to Carry the Burden of Proof: How Joint Criminal
Enterprise Lost Its Way at the Special Court for Sierra Leone. Journal of International
576 Bibliography
Ka Ho T (2009) The Relevancy of Nationality to the Right to Prisoner of War Status. Chinese
Karnavas M (2010) Joint Criminal Enterprise at the ECCC: A Critical Analysis of the Pre-Trial
Chamber's Decision against the Application of JCE III and Two Divergent Commentaries on
the Same. Criminal Law Forum 21:445–494
Kaufmann C, Marschner L (2011) Eine kritische Bestandsaufnahme aktueller Entwicklungen
der Außerordentlichen Kammern an den Gerichten von Kambodscha. Zeitschrift für
Internationale Strafrechtsdogmatik 10:811–821
Kendall S, Nouwen S (2014) Representational Practices at the International Criminal Court:
The Gap between Juridified and Abstract Victimhood. Law and Contemporary Problems
76:235–264
Kiernan B (1996) The Pol Pot regime: Race, Power and Genocide in Cambodia under the Khmer
Rouge, 1975–1979. Yale University Press, New Haven
Killean R (2015) An Incomplete Narrative: Prosecuting Sexual Violence Crimes at the
13:331–352
Kilpatrick R (2011) Prosecutor v. Kaing Guek Eav alias Duch: In First Round of Proceedings,
the Extraordinary Chambers in the Courts of Cambodia Convicts Former Chairman of
Khmer Rouge Interrogation Centre of Atrocity Crimes. Tulane Journal of International and
Comparative Law 19:669–690
Klayman B (1978) The Definition of Torture in International Law. Temple Law Quarterly
51:449–517
Klein K M (2006) Bringing the Khmer Rouge to Justice: The Challenges and Risks Facing the
Joint Tribunal in Cambodia. Northwestern Journal of International Human Rights 4:549–566
Koessler M (1950) American War Crimes Trials in Europe. The Georgetown Law Journal
39:18–112
Koessler M (1956) Borkum Island Tragedy and Trial. Journal of Criminal Law, Criminology, and
Political Science 47:183–196
Kozlovski M (2013) I Am Not the Khmer Rouge: Khieu Samphan Responds to Civil Parties,
Cambodia Tribunal Monitor. http://www.cambodiatribunal.org/_archived-site/blog/2013/05/i-am-
not-khmer-rouge-khieu-samphan-responds-civil-parties. Accessed 15 June 2015
Kress C (2003) The Procedural Law of the International Criminal Court in Outline: Anatomy of
Unique Compromises. Journal of International Criminal Justice 1:603–617
Kroker P (2012) Zivilparteien in Völkerstrafverfahren – Eine Analyse der Opferbeteiligung an
den Extraordinary Chambers in the Courts of Cambodia. Duncker & Humblot, Berlin
Lauterpacht H (1958) The Development of International Law by the International Court, Stevens,
London
Lemkin R (1944) Axe’s Rule in Occupied Europe. Carnegie, Washington
Lemonde M, Reynard J, (2013) Un juge face aux Khmers Rouges. Seuil, Paris
Levie H (1962) Penal Sanctions for Maltreatment of Prisoners of War. American Journal of
Levie H (1969) Maltreatment of Prisoners of War in Vietnam. In: Falk R (ed), The Vietnam War
and International Law, Princeton University Press, Princeton, pp 361–398
Levie H (1998) Enforcing the Third Geneva Convention on the Humanitarian Treatment of
Prisoners of War. United States Air Force Academy Journal of Legal Studies 7. Reprinted in:
Schmitt M, Green L (eds) Levie on the Law of War, Naval War College, Newport, pp 459–467
Leyh B (2011) Procedural Justice? Victim Participation in international Criminal Proceedings.
Intersentia, Cambridge
Linton S (2001) Cambodia, East Timor, Sierra Leone: Experiments in International Justice.
Criminal Law Forum 12:185–246
Bibliography 577
Linton S (2004) Reconciliation in Cambodia. Documentation Center of Cambodia, Phnom Penh

Linton S (2007) Putting Cambodia’s Extraordinary Chambers Into Context. Singapore Yearbook
of International Law 9:195–259
Lippman M (2008) Genocide. In: Bassioni M C (ed) International Criminal Law Vol. 1 Sources,
Subjects and Contents, 3rd edn, Martinus Nijhoff Publishers, Leiden, pp 403–435
Lisson D (2008) Defining ‘National Group’ in the Genocide Convention: A Case Study of Timor-
Leste. Stanford Law Review 60:1459–1496
Luftglass S (2004) Crossroads in Cambodia: The United Nation’s Responsibility to Withdraw
Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer
Rouge. Virginia Law Review 90:893–964
Luna E (2003) Punishment Theory, Holism, and the Procedural Conception of Restorative
Justice. Utah Law Review 1: 205–302
Marauhn T (1997) The Right of the Accused to Be Tried in His or Her Presence. In: Weissbrodt
D, Wolfrum R (eds) The Right to a Fair Trial, Springer-Verlag, Heidelberg, pp 763–776
Marsh L, Ramsden M (2011) Joint Criminal Enterprise: Cambodia's Reply to Tadić. International
Criminal Law Review 11:137–154
Martin-Ortega O, Herman J (2012) Hybrid Tribunals: Interaction and Resistance in Bosnia and
Herzegovna and Cambodia. In: Richmond O, Mitchell A (eds) Hybrid Forms of Peace: From
Everyday Agency to Post-Liberalism, Palgrave Macmillan, New York, pp 73–88
McCargo D (2011) Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribunal.
International Affairs 87:613–627
McGonigle B (2009) Bridging the Divides in International Criminal Proceedings: An
Examination into the Victim Participation Endeavour of the International Criminal Court.
Florida Journal of International Law 21:93–151
McLaughlin D, Wickeri E (2012) Mental Health and Human Rights in Cambodia. Fordham
Meierhenrich J (2006) The UN International Criminal Tribunals: The Former Yugoslavia,
Rwanda and Sierra Leone by William A. Schabas. American Journal of International Law
102:696–703
Meirio A (undated) Transitional Justice and Reconciliation in Cambodia: The Perspective of
Survivors. The Asian Scholar, Issue No. 7www.asianscholarship.org/asf/ejourn/articles/Meirio.
pdf. Accessed 15 June 2015
Meisenberg S (2014) Joint Criminal Enterprise at the Special Court for Sierra Leone. In: Jalloh C
(ed) The Sierra Leone Special Court and its Legacy: the Impact for Africa and International
Criminal Law, Cambridge University Press, Cambridge
Meisenberg S, Stegmiller I, Oeung J (2012) Conference Report on Hybrid Perspectives on the
Legacies of the Extraordinary Chambers in the Courts of Cambodia, ECCC/CHRAC, Phnom
Penh
Menzel J (2006) Ein Strafgericht für die Khmer Rouge. Herausforderung für Kambodscha und
das Völkerstrafrecht. Verfassung und Recht in Übersee 39:425–456
Meron T (2000) The Humanization of Humanitarian Law. American Journal of International Law
94:239–278
Meseke S (2005) Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen
Statut des Internationalen Strafgerichtshofes. Berliner Wissenschafts-Verlag, Berlin
Meyer F (2015) Artikel 6. In: Karpenstein U, Mayer F (eds) EMRK, 2nd ed., C.H. Beck,
Munich, pp 151–240
Milanovic M (2007) An Odd Couple: Domestic Crimes and International Responsibility in the
Special Tribunal for Lebanon. Journal of International Criminal Justice 5:1139–1152
Mills L (2006) The Justice of Recovery: How the State Can Heal the Violence of Crime. Hastings
Law Journal 57:457–508
Mohan M (2008) Reconstituting the “Un-Person”: the Khmer Krom & the Khmer Rouge
Tribunal. Singapore Yearbook of International Law and Contributors 12:43–55
578 Bibliography
Mohan M (2009) The paradox of victim-centrism: victim participation at the Khmer Rouge
Tribunal. International Criminal Law Review 9:1–42
Mollica RF, Donelan K, Tor S, Lavelle J, Elias C, Frankel M and Blendon, RJ (1993) The Effect
of Trauma and Confinement on the Functional Health and Mental Status of Cambodians living
in the Thai-Cambodia camps. Journal of the American Medical Association 270(5): 581–586
Morrison S (2009) Extraordinary Language in the Courts of Cambodia: Interpreting the limit-
ing language and personal jurisdiction of the Cambodian Tribunal, Capital University Law
Review 37:583–629
Mosyakov D (2004) The Khmer Rouge and the Vietnamese Communists: A History of their
Relations as told in the Soviet Archives’, GSP Working Paper 15. www.yale.edu/cgp/
resources.html. Accessed 15 June 2015
Murphy T (1984) Sanctions and Enforcement of the Humanitarian Law of the Four Geneva
Conventions of 1949 and Geneva Protocol I of 1977. Military Law Review 103:3–77
Nakagawa K (2008) Gender-Based Violence during the Khmer Rouge Regime: Stories of
Survivors from the Democratic Kampuchea (1975–1979), 2nd ed. Cambodian Defenders
Project, Phnom Penh.
Natale, K (2011) ‘I Could Feel My Soul Flying Away from My Body’: A Study on Gender-
Based Violence during Democratic Kampuchea in Battambang and Svay Rieng Provinces.
Cambodia Defenders Project, Phnom Penh.
Nersessian D (2005) Rethinking Cultural Genocide Under International Law. Human Rights
Dialogue: ‘Cultural Rights’nn
Nersessian D (2010) Genocide and Political Groups. Oxford University Press, New York
http://www.carnegiecouncil.org/publications/archive/dialogue/2_12/section_1/5139.html.
Ní Aoláin F, Haynes DF and Cahn N (2011) On the Frontlines: Gender, War, and the Post-
Conflict Process. Oxford University Press, New York.
Nice G (2001) Trials of Imperfection. Leiden Journal of International Law 14:383–397
Nice G, Vallières-Roland P (2005) Procedural Innovations in War Crimes Trials. Journal of
Niroshika Vaz A (2009) The Path to Reconciliation in Cambodia. Documentation Center of
Cambodia, Phnom Penh
Nmehielle V, Jalloh C (2006) The Legacy of the Special Court for Sierra Leone. Fletcher Forum
of World Affairs 30:107–124
Nouwen S (2006) Hybrid courts: The Hybrid Category of a New Type of International Crimes
Courts. Utrecht Law Review 2:190–214
Nowak M (2005) UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd ed.,
N.P. Engel, Kehl
Nowak M, McArthur E (2008) The United Nations Convention against Torture. Oxford
University Press, Oxford
O’Rourke A (2006) Joint Criminal Enterprise and Brđanin: Misguided Overcorrection. Harvard
Öberg D (2009) The Absorption of Grave Breaches into War Crimes Law. International Review
of the Red Cross 91:163–183
Ohlin D (2009) Joint Criminal Confusion. New Criminal Law Review 12:406–419
Ohlin J (2011) Proportional Sentences at the ICTY. In: Swart B, Sluiter G, Zahar A (eds) The
Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University
Press, Oxford, pp 322–344
Ohlin J (2012) Cambodia Tribunal increases Duch sentence to life. http://opiniojuris.
org/2012/02/06/cambodia-tribunal-increases-duch-sentence-to-life. Accessed 15 June 2015nn
Olásolo H (2009) The Criminal Responsibility of Senior Political and Military Leaders as
Principals to International Crimes. Hart, Oxford
Bibliography 579
Olivie A, Muwero H (2009) Textual Discrepancies 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 and their Legal Consequences.
International Human Rights Clinic, Seattle University
Oosterveld V (2011) Forced Marriage and the Special Court for Sierra Leone: Legal Advances
and Conceptual Difficulties. Journal of International Humanitarian Legal Studies 2:127–158
Oosterveld V (2012) Gender and the Charles Taylor Case at the Special Court for Sierra Leone.
William and Mary Journal of Women and the Law 19(1):7–33
Oosterveld V (2014) Sexual Violence Directed Against Men and Boys in Armed Conflict or
Mass Atrocity: Addressing a Gendered Harm in International Criminal Tribunals. Journal of
International Law and International Relations 10:107–128
Panh R (2003) S21: The Khmer Rouge Killing Machine, Institut national de l'audiovisuel. France
and First Run Features, USA
Park R (2011) Proving Genocidal Intent: International Precedent and ECCC Case 002. Rutgers
Law Review 63:129–191
Park S, Vetterlein A (2010) Owning Development. Creating Policy Norms in the IMF and the
World Bank. Cambridge University Press, New Yorknn
Pattenden R (2006) Admissibility in Criminal Proceedings of Third Party and Real Evidence
Obtained by Methods Prohibited by UNCAT. International Journal of Evidence & Proof
10:1–41
Pena M (2010) Victim Participation at the International Criminal Court: Achievements Made and
Challenges Ahead. ILSA Journal of International and Comparative Law 16:497–515
Pentelovitch N (2008) Seeing Justice Done: The Importance of Prioritizing Outreach Efforts at
International Criminal Tribunals. Georgetown Journal of International Law 39:445–494
Peou S (2013) Mass Atrocities in Cambodia Under the Khmer Rouge Regime of Terror.
In: Ganesan N, Kim S (eds) State Violence in East Asia, University Press of Kentucky,
Lexington, pp 129–159
Petit R, Ahmed A (2010) A review of the jurisprudence of the Khmer Rouge Tribunal.
Northwestern Journal of International Human Rights 8:165–189
Pettay T, Lampron K (2011) A Partial Victory for Fair Trial Rights at the ECCC with the
Decision on the Statute of Limitations on Domestic Crimes.
Pham P, Vinck P (2010) Transitioning to Peace: A Population-Based Survey on Attitudes about
Social Reconstruction and Justice in Northern Uganda. Human Rights Center, University of
California, Berkeley, School of Law. www.law.berkeley.edu/HRCweb/pdfs/HRC_Uga2010final_
web.pdf. Accessed 15 June 2015
Pham P, Vinck P, Balthazard M, Hean S, Stover E (2009) So We Will Never Forget- A population
based survey on attitude about social reconstruction and the Extraordinary Chambers in the
Courts of Cambodia, Human Rights Center, University of California Berkley. www.adhoc-
cambodia.org/?p=2828. Accessed 15 June 2015
Pham P, Vinck P, Balthazard M, Strasser J, Om C (2011) Victim Participation and the Trial of
Duch at the ECCC. Journal of Human Rights Practice 3:264–287
Piacente N (2004) Importance of the Joint Criminal Enterprise Doctrine for the ICTY
Prosecutorial Policy. Journal of International Criminal Justice 2:446–454nnn
Pictet J (1952) Commentary to the First 1949 Geneva Conventions. International Committee of
the Red Cross, Geneva
Pictet J (ed) (1958) Commentary: IV Geneva Convention, Relative to the Protection of Civilian
Person in Times of War. International Committee of the Red Cross, Geneva
Plesch D, Sácouto S and Lasco C (2014) The Relevance of the United Nations War Crimes
Commission to the Prosecution of Sexual and Gender-Based Crimes Today. Criminal Law
Forum 25(1–2):349–381
Pollard M (2005) Rotten Fruit: State Solicitation, Acceptance, and Use of Information Obtained
through Torture by Another State. Netherlands Quarterly of Human Rights 23:349–378
580 Bibliography
Pomorski S (1990) Conspiracy and Criminal Organization. In: Ginsburgs G, Kudriavtsev V (eds)
The Nuremberg Trial and International Law, Martinus Nijhoff, Dordrecht
Ponchaud F (2001) Cambodge, année zero. Kailash, Pondichéry
Ponchaud F (2013) L’impertinent du Cambodge, entretiens avec Dane Cuypers. Magellan & Cie,
Paris
Ponchaud F (2014) Brève histoire du Cambodge. Magellan & Cie, Paris
Pritchard R J (1995) The International Military Tribunal for the Far East and its Contemporary
Resonances Military Law Review 149:25–35
Pritchard R J (1998) The Tokyo Major War Crimes Trial: The Judgment, Separate Opinions,
Proceedings in Chambers, Appeals and Reviews of the International Military Tribunal for the
Far East, Vol. 101. Edwin Mellen Press, New York
Quigley J (2004) Introduction. In: De Nike H, Quigley J, Robinson K J (eds) Genocide in

Cambodia, Documents from the Trial of Pol Pot and Ieng Sary. University of Pennsylvania
Press Philadelphia, pp 1–18
Quigley J (2006) The Genocide Convention: An International Law Analysis. Ashgate, Aldershot
UK
Quigley J (2014) The Cambodian Hybrid Court Is Prosecuting for the Wrong Offenses: A
Review Essay, Public Law and Legal Theory Working Paper Series, No 25, Ohio State
University Moritz College of Law.
Ratner S (1999) The United Nations Group of Experts for Cambodia. American Journal of
Ratner S, Abrams J, Bischoff J (2009) Accountability for Human Rights Atrocities in
International Law - Beyond the Nuremberg Legacy. Oxford University Press, Oxford
Rauschenback M, Scalia D (2008) Victims and International Criminal Justice: A Vexed
Question? International Review of the Red Cross 90:441–459
Reeves S (2009) The Expansive Definition of ‘Protected Persons’ in War Crime Jurisprudence.
Army Lawyer 23–28
Reiger C (2009) Where to From Here for International Tribunals? Considering Legacy and
Residual Issues, ICTJ Briefing Paper
Roberts K (2009) The Contribution of the ICTY to the Grave Breaches Regime. Journal of
Robinson D (2003) Serving the Interests of Justice: Amnesties, Truth Commissions and the ICC.
Rogall K (2010) § 136. In: Wolter J (ed) Systematischer Kommentar zur Strafprozessordnung,
4th ed., vol. II, Heymann, Cologne, 1277–1323
Rosas A (1987) The Frontiers of International Humanitarian Law. Journal of Peace Research
24:219–236
Roxin C, Schäfer G, Widmaier G (2006) Die Mühlenteichtheorie – Überlegungen zur
Ambivalenz von Verwertungsverboten. Strafverteidiger 26:655–661
Sá Couto S (2012) Victim Participation at the International Criminal Court and the Extraordinary
Chambers in the Courts of Cambodia: A Feminist Project. Michigan Journal of Gender &
Law 18:297–358
Sanusi S (2013) SCSL Practice on Cooperation with the Host State and Third States: A
Contribution to Africa and International Criminal Justice. In: Jalloh C (ed) The Sierra
Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law,
Cambridge University Press, Cambridge, pp 469–480
Sassòli M, Bouvier A, Quintin A (2011) How Does Law Protect in War? Cases, Documents and
Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol.2, 3rd
edn. International Committee of the Red Cross, Geneva
Bibliography 581
Schabas W (2000) Problems of International Codification – Were the Atrocities in Cambodia and
Kosovo Genocide? New England Law Review 35:287–302
Schabas W (2000) Genocide in International Law: The Crime of Crimes. Cambridge University
Press, Cambridge
Schabas W (2001) Was it Genocide? Human Rights Quarterly 23:470–477nn
Schabas W (2006) The UN International Criminal Tribunals: The former Yugoslavia, Rwanda
and Sierra Leone. Cambridge University Press, Cambridgenn
Schabas W (2008) Article 6. In: Triffterer O (ed) Commentary on the Rome Statute of the
International Criminal Court, 2nd edn., C.H. Beck, Munich, pp 143–157
Schabas W (2011) An Introduction to the International Criminal Court. Cambridge University
Press, Cambridge
Schabas W (2012) Comment on the Victims Decision of Trial Chamber V. http://humanrightsdoctorate.
blogspot.de/2012/10/comment-on-victims-decision-of-trial.html. Accessed 15 June 2015
Scharf M (2008) Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?
Washington & Lee Law Review 65:129–172
Scharf M (2013) Customary International Law in times of Fundamental Change: Recognizing
Grotian Moments. Cambridge University Press, Cambridgennn
Scheffer D (2008) The Extraordinary Chambers in the Courts of Cambodia. In: Bassioni M C
(ed) International Criminal Law, Vol. 3, International Enforcement, 3rd edn, Martinus Nijhoff
Publishers, Leiden
Schindler D, Toman J (2004) The Laws of Armed Conflicts: A Collection of Conventions,
Resolutions and other Documents, 4th edn. Martinus Nijhoff, Leiden
Schmitt B (2014) § 136a. In: Meyer-Goßner L, Schmitt B (eds) Strafprozessordnung, 57th ed.,
C.H. Beck, Munich, pp 645–655
Schulz S (2009) Transitional Justice und hybride Gerichte, Zur strafrechtlichen Verfolgung von
völkerstrafrechtlichen Verbrechen unter besonderer Berücksichtigung des kambodscha-
nischen Sondergerichts, Extraordinary Chambers. LIT Verlag, Berlin
Scully S (2011) Judging the Success and Failures of the Extraordinary Chambers of the Courts of
Cambodia. Asian-Pacific Law & Policy Journal 13: 300–353
Searle J (1995) The Social Construction of Social Reality. Penguin Books, London
Selbmann F (2003) Der Tatbestand des Genozids im Völkerstrafrecht. Leipziger
Universitätsverlag, Leipzig
Selbmann F (2011) Die Rolle der Generalstaatsanwaltschaft der DDR im Prozess gegen Pol Pot
und Ieng Sary im Jahr 1979. Neue Justiz 65:454–460
Selbmann F and Wesemann D (2010) Der Pol Pot-Ieng Sary-Prozess revisited – Anmerkung
zum Prozess gegen führende Rote Khmer im Jahr 1979. Zeitschrift für Internationale
Strafrechtsdogmatik (2010) 5:116–124
Sémelin J (2005) Purifier et Détruire, Usages politiques des massacres et génocide. Seuil, Paris
Shahabuddeen M (2004) Does the Principle of Legality Stand in the Way of Progressive
Development of Law? Journal of International Criminal Justice 2:1007–1017
Shahabuddeen M (2011) Teething Phase of the ECCC. Chinese Journal of International Law
10:468–502
Sharvit P (1984) The Definition of Torture in the United Nations Convention against Torture and
other Cruel, Inhuman and Degrading Treatment or Punishment. Israel Yearbook on Human
Rights 23:147–175
Sher S (2004) Le Kampuchéa des ‘Khmers rouges’: Essai de compréhension d’une tentative de
révolution. L’Harmattan, Paris
Sieff A (2013) Seeking Justice in the Killing Fields. American Bar Association Journal,
www.abajournal.com/mobile/mag_article/seeking_justice_in_the_killing_fields. Accessed 15
June 2015
Simon T (2007) The Law of Genocide: Prescriptions For a Just World. Greenwood Publishing
Group, United States
582 Bibliography
Sliwinski M (1995) Le génocide khmer rouge : une analyse démographique. L’Harmattan, Paris
Smith T (1951) Mental Abnormality and Responsibility in International Criminal Law.
Transactions of the Grotius Society 37:99–125
So F (2011) The Hijab of Cambodia: Memories of Cham Muslim Women after the Khmer
Rouge. Documentation Center of Cambodia Documentation Series No. 16, Phnom Penh.
Solis G (2010) The Law of Armed Conflict. International Humanitarian Law in War. Cambridge
Sperfeldt C (2009) Reparations for Victims of the Khmer Rouge, OTJR Working Paper
Serieswww.otjr.crim.ox.ac.uk/materials/papers/41/SperfeldtFinal.pdf. Accessed 15 June 2015
Sperfeldt C (2013) From the Margins of Internationalized Criminal Justice. Lessons Learned at
the Extraordinary Chambers in the Courts of Cambodia. Journal of International Criminal
Justice 11:1111–1137
Staadt J (2009) Furchtbare Juristen des SED-Staates. Zur Rolle der Generalstaatsanwaltschaft -
Teil I. Zeitschrift des Forschungsverbundes SED-Staat 25:22–34
Staker C, Eckelmans F (2015) Article 81. In: Triffterer O (ed) A Commentary to the Rome
Statute, Article by Article, 3rd edn, Oxford University Press, Oxford.n
Stammel N, Burchert S, Taing S, Bockers E, Knaevelsrud C (2010) The Survivors’ Voices:
Attitudes on the ECCC, the Former Khmer Rouge and Experiences with Civil Party
Participation. http://psychologybeyondborders.org/wp-content/uploads/2013/08/bzfo_cambo-
dia_report_20101.pdf. Accessed 15 June 2015nn
Starygin S (2011) Internal Rules of the Extraordinary Chambers in the Courts of Cambodia
(ECCC): Setting an Example of the Rule of Law by Breaking the Law? Journal of Law and
Conflict Resolution 3:20–42
Steer C (2010) Non-state Actors in International Criminal Law. In: D’Aspremont, J (ed)
Participants in the International Legal System: Theoretical Perspectives, Routledge, London
Stegmiller I (2014) Legal Developments in Civil Party Participation at the Extraordinary
Chambers in the Courts of Cambodia. Leiden Journal of International Law 27: 465–477
Studzinsky S (2011) Victim’s participation before the Extraordinary Chambers in the Courts of
Cambodia. Zeitschrift für Internationale Strafrechtsdogmatik 10:887–891
Studzinsky S (2013) Participation Rights of Victims as Civil Parties and the Challenges of Their
Implementation Before the Extraordinary Chambers in the Courts of Cambodia. In Bonacker
T, Safferling C (eds), Victims of International Crimes: An Interdisciplinary Discourse,
T.M.C. Asser Press, The Hague, pp 175–188
Studzinsky S (2013) Victims of Sexual and Gender-Based Crimes Before the Extraordinary
Chambers in the Courts of Cambodia: Challenges of Rights to Participation and Protection.
In: de Brouwer A, Ku C, Römkens R, and van den Herik L (eds) Sexual Violence as an
International Crime: Interdisciplinary Approaches, Intersentia, Antwerp, pp 173–186
Studzinsky, Silke (2008), ECCC Press Statement by Civil Parties Lawyer Silke Studzinsky,
First Civil Party Application before the Extraordinary Chambers in the Courts of Cambodia
(ECCC) on Gender-Based Violence under the Khmer Rouge Regime, 3 September 2008
Sullivan D, Tifft L (eds) (2006) Handbook of Restorative Justice: A Global Perspective.
Routledge, New York
Ternon Y (1995) L’Etat criminel - Les génocides au XXème siècle. Seuil, Paris
Terris D, Romano C, Swigart L (2007) The International Judge: An Introduction to the Men and
Women Who Decide the World’s Cases. Brandeis University Press, Lebanon
Thienel T (2006) Foreign Acts of Torture and the Admissibility of Evidence. Journal of
Thienel T (2006) The Admissibility of Evidence Obtained by Torture under International Law.
Thienel T (2007) The Burden and Standard of Proof in the European Court of Human Rights.
German Yearbook of International Law 50:543–588
Bibliography 583
Tillier J (2011) The challenges of victim participation in the Extraordinary Chambers in the
Courts of Cambodia. http://cesice.upmf-grenoble.fr/manifestations/the-challenges-of-victim-
participation-in-the-extraordinary-chambers-in-the-courts-of-cambodia-par-justine-tillier-
133429.htm. Accessed 15 June 2015
Tomaz J (2012) The Mauthausen Trial: American Military Justice in Germany. Harvard
Tortora G (2003) The Financing of the Special Tribunals for Sierra Leone Cambodia and
Lebanon International Criminal Law Review 13:93–124
Tortora G (2013) The Financing of the Special Tribunals for Sierra Leone, Cambodia and
Lebanon. In: Rothe D, Meernik J, Ingadóttir T (eds) The Realities of International Criminal
Justice, Martinus Nijhoff Publishers, Leiden, pp 93–124
Totani Y (2009) The Tokyo War Crimes Trial, 1st ed. Harvard University Press, Cambridge
Toy-Cronin B (2006) ‘I Want to Tell You’: Stories of Sexual Violence during Democratic
Kampuchea (1975–1979). Cambodian Defenders Project, Phnom Penh.nnn
Trainin A (1945) Hitlerite Responsibility under Criminal Law. Hutchinson & Co., London
Trechsel S (2005) Human Rights in Criminal Proceedings. Oxford University Press, Oxford
Try T, Sim S (2001) Victim and Perpetrators? Testimony of Young Khmer Rouge Comrades’.
Documentation Center of Cambodia, Phnom Penh
Tyner J (2008) The Killing of Cambodia: Geography, Genocide and the Unmaking of Space.
Ashgate Publishing, Hampshire
Ung L (2000) First They Killed My Father. Harper Collins, New York.
Van der Vyver J (2003) Torture as a Crime under International Law. Albany Law Review
67:427–463
Van Schaak B (1997) The Crime of Political Genocide: Repairing the Genocide Convention’s
Blind Spot. Yale Law Journal 106:2259–2291
Van Sliedregt E (2007) Joint Criminal Enterprise as a Pathway to Convicting Individuals for
Genocide Journal of International Criminal Justice 5:184–207
Vasiliev S (2010) The Role and Legal Status of the Prosecutor in International Criminal Trials.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1715465. Accessed 15 June 2015
Vasiliev S (2012) Trial. In: Reydams L, Wouters J, Ryngaert C (eds) International Prosecutors,
Oxford University Press, Oxford, pp 700–796
Vasiliev S (2014) International Criminal Trials: A Normative Theory. UvA Repro, Amsterdam
Vasiliev S (2014) The Usages and Limitations of Comparative Law and the Methodology of
International Criminal Procedure. Revista Eletrônica de Direito Penal 2:165–199
Viseur Sellers P (2011) Wartime Female Slavery: Enslavement? Cornell International Law
Journal 44(1):115–143
War Crimes Research Office (2007) Victim Participation Before the International Criminal Court.
www.wcl.american.edu/warcrimes/icc/icc_reports.cfm. Accessed 15 June 2015
War Crimes Research Office (2011) Ensuring Effective and Efficient Representation of Victims at the
International Criminal Court. www.wcl.american.edu/warcrimes/icc/documents/WCROReport15-
VictimRepresentation.pdf. Accessed 15 June 2015
Weinke A (2002), Die Verfolgung von NS-Tätern im geteilten Deutschland: Vergangenheitsbe-
wältigungen 1949 - 1969 oder eine deutsch-deutsche Beziehungsgeschichte im Kalten Krieg.
Ferdinand Schöningh Verlag, Paderborn
Wemmer J (2009) Where Do They Belong? Giving Victims A Place in the Criminal Justice
Process. Criminal Law Forum 20:395–416
Werle G (2009) Principles of International Criminal Law, 2nd edn. T.M.C. Asser Press, The
Hague
584 Bibliography
International Criminal Law? Northwestern University Journal of International Human Rights
8:301–309
Widyono B (2008) Dancing in Shadows: Sihanouk, the Khmer Rouge, and the United Nations in
Cambodia. Rowman & Littlefield, Maryland
Wieland G (1995) Die Nürnberger Prinzipien im Spiegel von Gesetzgebung und
Spruchpraxis sozialistischer Staaten. In: Hankel G and Stuby G (eds) Strafgerichte gegen
Menschheitsverbrechen, Zum Völkerstrafrecht 50 Jahre nach den Nürnberger Prozessen,
Hamburger Edition, Hamburg, pp 98–123
Wieland G (2003) Die Ahndung von NS-Verbrechen in Ostdeutschland. Neue Justiz 57:113–118
Wierda M, Triolo A (2012) The Funding of International Criminal Tribunals. In: Reydams L,
Wouters J, Ryngaert C (eds) International Prosecutors, Oxford University Press, Oxford,
pp 113–171
Williams S (2004) The Cambodian Extraordinary Chambers - A Dangerous Precedent for
International Justice? International & Comparative Law Quarterly 53:209–227
Williams S (2012) Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional
Issues. Hart, Oxford
Williams S, Palmer E (2015) The Extraordinary Chambers in the Courts of Cambodia:
Developing the Law on Sexual Violence? International Criminal Law Review 15:452–484
Wilson P (2010–2011) Observations of the Cambodia Trial of ‘Duch’. Current Issues in Criminal
Justice 22:473–482
Ye B (2014) Transitional Justice Through the Cambodian Women’s Hearings. The Cambodia
Law and Policy Journal 3:23–38
Young R (2010) How Do We Know Them When We See Them? The Subjective Evolution in
the Identification of Victim Groups for the Purpose of Genocide. International Criminal Law
Review 10:1–22
Zehr H (1990) Changing Lenses: A New Focus for Crime and Justice. Herald Press, Scottdale
Table of Cases
EXTRAORDINARY CHAMBERS IN THE COURTS

OF CAMBODIA
Case 001—Kaing Guek Eav (Duch) (001/18-07-2007/ECCC)

Order of Provisional Detention, Kaing Guek Eav (Duch) (001/18-07-2007/
ECCC-C3), CIJ, 31 July 2007...47
Separation Order, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-D18), CIJ, 19
September 2007...26
Decision on Appeal Against Provisional Detention of Kaing Guek Eav (Duch), Kaing
Guek Eav (Duch) (001/18-07-2007/ECCC-C5/45), PTC, 3 December 2007...25
Ruling on Defence Request for Redaction of Some Parts of Co-Prosecutor’s
Response to Appeal Brief – Order of Provisional Detention, Kaing Guek Eav
(Duch) (001/18-07-2007/ECCC-C5/46), PTC, 6 December 2007...173
Closing Order Indicting Kaing Guek Eav Alias ‘Duch’, Kaing Guek Eav (Duch)
(001/18-07-2007-ECCC-D99), CIJ, 8 August 2008...335, 378
Decision on Appeal Against Closing Order Indicting Kaing Guek Eav Alias
‘Duch’, Kaing Guek Eav (Duch) (001/18-07-2007-ECCC-D99/3/42), PTC, 5
December 2008...378
Direction on the Scheduling of the Trial, Kaing Guek Eav (Duch) (001/18-07-2007/
ECCC-E26), TC, 20 March 2009...407, 418
Decision on the request of the Co-Lawyers for Civil Parties Group 2 to make an
Opening Statement during the Substantive Hearing, Kaing Guek Eav (Duch)
(001/18-07-2007/ECCC-E23/4), TC, 27 March 2009...541
Decision on Admissibility of Material on the Case File as Evidence, Kaing Guek
Eav (Duch) (001/18-7-2007/ECCC-E43/4), TC, 26 May 2009...49
Decision on Request for Release, Kaing Guek Eav (Duch) (001/18-7-2007/ECCC-
E39/5), TC, 15 June 2009...25, 47, 71, 72, 173, 260
Decision on Parties’ Requests to Put Certain Materials before the Chamber pursuant
to Internal Rule 87(2), Kaing Guek Eav (Duch) (001/18-7-2007/ECCC-E176),
TC, 28 October 2009...495

DOI 10.1007/978-94-6265-105-0
586 Table of Cases
Decision on the Defence Preliminary Objection Concerning the Statute of limi-

tations of Domestic Crimes, Kaing Guek Eav (Duch) (001/18-07-2007/
ECCC-E187), TC, 26 July 2010...27, 378–381
Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E188), TC, 26 July
2010...26, 127, 160–162, 173, 177, 178, 189, 194, 225–229, 269, 271, 277,
285, 336, 337, 354–357, 360–370, 378, 391, 392, 523
Notification of Assignment of Co-Lawyer, Kaing Guek Eav (Duch) (001/18-07-2007/
ECCC-E189), TC, 6 August 2010...163
Decision on Characterisation of Group 1 – Civil Party Co-Lawyers’ Immediate
Appeal of Civil Party Status Determinations in the Trial Judgment, Kaing Guek
Eav (Duch) (001/18-07-2007/ECCC-F8/1), SCC, 30 September 2010...176
Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing
of Civil Party Lawyers to Make submissions on Sentencing and Directions
concerning the Questioning of the Accused, Experts and Witnesses Testifying
on Character, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E72/3), TC,
9 October 2009...401, 407, 519, 407
Case 002—Nuon Chea and others (002/19-09-2007/ECCC)
Provisional Detention Order, Nuon Chea and others (002/19-09-2007/ECCC-

C11/1), CIJ, 19 September 2007...79, 96
Initial Appearance of Ieng Thirith, Nuon Chea and others
(002/19-09-2007/ECCC-D39), CIJ, 12 November 2007...471
Public Decision on the Co-Lawyer’s Urgent Application for Disqualification of
Judge Ney Thol Pending the Appeal Against the Provisional Detention Order
in the Case of Nuon Chea, Nuon Chea and others (002/19-09-2007/ECCC-
C11/29), PTC, 4 February 2008...63, 471
Decision on Civil Party Participation in Provisional Detention Appeals, Nuon Chea
and others (002/19-09-2007/ECCC-C11/53), PTC, 20 March 2008...519, 540
Decision on Nuon Chea’s Appeal against Order Refusing Request for Annulment,
Nuon Chea and others (002/19-09-2007-ECCC-D55/I/8), PTC, 26 August
2008...175, 394, 395, 539
Decision on Ieng Sary’s Appeal Against the Letter Concerning Request for
Information Concerning Legal Officer David Boyle, Nuon Chea and others
(002/19-09-2007-ECCC-A162/III/6), PTC, 28 August 2008...404
Decision on Nuon Chea's Appeal against Order refusing Request for Annulment, Nuon
Cheaand others (002/19-09-2007/ECCC-D55/I/8), PTC, 13 October 2008...539
Public Decision on Appeal Against Provisional Detention Order of Ieng Sary, Nuon
Chea and others (002/19-09-2007/ECCC-C22/I/73), PTC, 17 October 2008...80
Conduct of Criminal Proceedings, Nuon Chea and others (002/19-09-2007/ECCC-
PTC 17), PTC, 10 November 2008...519
Order on Use of Statements which were or may have been Obtained by Torture,
Nuon Chea and others (002/19-09-2007/ECCC-D130/8), CIJ, 28 July 2009...493
Table of Cases 587
Consolidated Response by Co-Investigating Judge Marcel Lemonde to

Applications to Disqualify Filed on Behalf of Ieng Sary and Khieu Samphan,
Nuon Chea and others, CIJ, 5 November 2009...56
Decision on leng Sary’s Request for Appropriate Measures Concerning Certain
Statements by Prime Minister Hun Sen Challenging the Independence of the
Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing, Nuon Chea
and others (002/20-10-2009-ECCC-5), PTC, 30 November 2009...404
Order on the Application at the ECCC of the Form of Liability Known as Joint
Criminal Enterprise, Nuon Chea and others (002/19-09-2007/ECCC-D97/13),
CIJ, 8 December 2009...188, 209–212
Decision on Ieng Sary’s Application to Disqualify Co-Investigating Judge Marcel
Lemonde, Nuon Chea and others (002/09-10-2009/ECCC/PTC (01)-7), PTC, 9
December 2009...56, 404
Decision on Khieu Samphan’s Application to Disqualify Co-Investigating Judge
Marcel Lemonde, Nuon Cheaand others (002/13-10-2009/ECCC/PTC (02)-7),
PTC, 14 December 2009...56, 57
Decision on the Admissibility of the Appeal against’ Order on Use of Statements
which were or may have been Obtained by Torture, Nuon Chea and others
(002/19-09-2007/ECCC-D130/9/21), PTC, 18 December 2009...495
Combined Order on Co-Prosecutors’ Two Requests for Investigative Action Regarding
Khmer Krom and Mass Executions in Bakan District (Pursat) and Civil Parties
Request For Supplementary Investigations Regarding Genocide of the Khmer Krom
& the Vietnamese, Nuon Chea and others (002/19-09-2007/ECCC-D250/3/3), CIJ,
13 January 2010...28, 285–286
Decision on Ieng Sary's Rule 35 Application for Judge Marcel Lemonde's
Disqualification, Nuon Chea and others (002/07-12-2009/ECCC/PTC (06)-5), PTC,
29 March 2010...57, 67
Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal
Enterprise (JCE), Nuon Chea and others (002/19-09-2007/ECCC-D97/15/9),
PTC, 20 May 2010...170, 188, 205, 212, 214–216, 230, 233, 247, 277
Decision on Ieng Sary's and on Ieng Thirith Applications under Rule 34 to Disqualify
Judge Marcel Lemonde, Nuon Chea and others (002/11-12-2009/ECCC/PTC
(07)-6), PTC, 15 June 2010...57
Decision on the Defence Preliminary Objection Concerning the Statute of Limitations
of Domestic Crimes, Nuon Chea and others (002/19–09–2007/ECCC-E187), TC,
26 July 2010...376
Decision on Application for Disqualification of Judge You Bunleng, Nuon Chea
and others (002/17-06-2010/ECCC-PTC (09)-8), PTC, 10 September 2010...63
Closing Order, Nuon Chea and others (002/19–09–2007/ECCC-D427), CIJ, 15
September 2010...14, 27, 28, 30, 79–80, 220, 260, 262, 267, 269, 271, 292,
325–330, 342, 346, 364–365, 378, 404, 409, 422, 436, 463, 482
Decision on Ieng Sary's Appeal against the Closing Order, Nuon Chea and others
(002/19-09-2007/ECCC-D427/1/26), PTC, 13 January 2011...27
Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related
Requests, Nuon Chea and others (002/19-09-2007/ECCC-E5/3), TC, 28 January
2011...64, 173, 405, 457
588 Table of Cases
Decision on Appeals by Nuon Chea and Ieng Thirith against the Closing Order,
Nuon Chea and others (002/19-09-2007/ECCC-D427/2/15), PTC, 15 February
2011...169, 194
Decision on Ieng Thirith, Nuon Chea and Ieng Sary's Applications for
Disqualification of Judges Nil Nonn, Silvia Cartwright, Ya Sokhan, Jean-Marc
Lavergne and Thou Mony, Nuon Chea and others (002/19-09-2007/ECCC-E55/4),
TC, 23 March 2011...54, 55, 71, 405
Decision on Ieng Sary’s Motions Regarding Judicial Notice of Adjudicated Facts
from Case 001 and Facts of Common Knowledge Being Applied in Case 002,
Nuon Chea and others (002/19-09-2007/ECCC-E69/1), TC, 4 April 2011...455
Decision on Ieng Sary’s Motion for a Hearing on the Conduct of the Judicial
Investigations, Nuon Chea and others (002/19-09-2007-ECCC-E71/1), TC, 8
April 2011...404
Public Decision on Ieng Sary’s Appeal against the Closing Order, Nuon Chea and
others (002/19-09-2007/ECCC-D427/1/30), PTC, 11 April 2011...80, 90, 91,
98, 175, 194, 261, 344, 378, 379, 380, 383, 384
Decision on Ieng Thirith and Ieng Sary’s Applications for Disqualification of
Judge You Ottara from the Special Bench and Requests for a Public Hearing,
Nuon Chea and others (002/19-09-2007/ECCC-E63/5), TC, 9 May 2011...61
Order for further assessment of Ieng Thirith, Nuon Chea and others
(002/19-09-2007/ECCC-E62/3/3), TC, 24 May 2011...475
Decision on Ieng Thirith’s Application to Disqualify Judge Som Sereyvuth for
Lack of Independence, Nuon Chea and others (002/19-09-2007/ECCC-1/4),
SCC, 3 June 2011...62
Decision on Immediate Appeals By Nuon Chea and Ieng Thirith on Urgent Applications
for Immediate Release, Nuon Chea and others (002/19-09-2007/ECCC-
E50/2/1/4), SCC, 3 June 2011...164
Decision on Immediate Appeal by Khieu Samphan on Application for Release, Nuon
Chea and others (002/19-09-2007/ECCC-E50/3/1/4), SCC, 6 June 2011...164
Agenda for Initial Hearing, Nuon Chea and others (002/19–09–2007/ECCC-
E86/1), TC, 14 June 2011...383
Partially Dissenting Opinion of Judge Noguchi, Decision on Immediate Appeal by
Khieu Samphan on Application for Release, Nuon Chea and others (002/19–
09–2007/ECCC–E50/3/1/4.1), SCC, 23 June 2011...175
Decision of Appeals against Orders of the Co-investigating Judges on the admis-
sibility of Civil Party applications, Nuon Chea and others (002/19-09-2007/
ECCC-D404/4/2), PTC, 24 June 2011...537
Decision on NUON Chea’s Preliminary Objection alleging the unconsti-
tutional character of the ECCC Internal Rules, Nuon Chea and others
(002/19–09–2007/ECCC-E51/14), TC, 8 August 2011...175, 395
Scheduling Order for Preliminary Hearing to stand Trial, Nuon Chea and others
(002/19-09-2007/ECCC-E110), TC, 11 August 2011...476, 486
Order Appointing Experts, Nuon Chea and others (002/19-09-2007/ECCC-E111),
TC, 23 August 2011...475
Table of Cases 589
Memorandum: Clarification of extend of the Experts’ Report requested pursu-

ant to E111 in the light of Defence questions (E111/3), Nuon Chea and others
(002/19-09-2007/ECCC-E111/4), TC, 6 September 2011...475
Decision on Nuon Chea Motions regarding Fairness of Judicial Investigation
(E51/3, E82, E88 and E92), Nuon Chea and others (002/19-09-2007/ECCC-
E116), TC, 9 September 2011...66, 404
Decision on the Applicability of Joint Criminal Enterprise, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E100/6), TC, 12 September 2011...170, 189, 205,
217–221, 240–241, 247, 252
Severance Order Pursuant To Internal Rule 89ter, Nuon Chea and others
(002/19-09-2007/ECCC-E124), TC, 22 September 2011...93, 177, 257, 346,
384, 408, 437, 543
Decision on Defence Preliminary Objection (Statute of Limitations on Domestic
Crimes), Nuon Chea and others (002/19–09–2007/ECCC-E122), TC, 22
September 2011...379
Annex: List of Paragraphs and portions of the Closing Order relevant to Case 002/01,
Amended Further to the Trial Chamber’s Decision on Ieng Thirith's Fitness to
Stand Trial (E138) and the Trial Chamber's Decision on Co-Prosecutors’ Request
to Include Additional Crime Sites Within the Scope of Trial in Case 002/01
(E163), Nuon Chea and others (002/19-09-2007/ECCC-E124/7.3), TC, 8 October
2011...409
Decision on Co-Prosecutors’ Request for Reconsideration of the Terms of the Trial
Chamber’s Severance Order (E/124/2) and Related Motions and Annexes, Nuon
Chea and others (002/19-09-2007/ECCC-E124/7), TC, 18 October 2011...409, 442
Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus
Requirement from the Definition of Crimes against Humanity, Nuon Chea and
others (002/19-09-2007/ECCC-E95/8), TC, 26 October 2011...194
Decision on Ieng Sary’s Rule 89 Preliminary Objections (ne bis in idem and
amnesty and pardon), Nuon Chea and others (002/19-09-2007/ECCC-E51/15),
TC, 3 November 2011...80, 382
Decision on Nuon Chea’s Fitness to Stand Trial and Defence Motion for
Additional Medical Expertise, Nuon Chea and others (002/19-09-2007/ECCC-
E115/3), TC, 15 November 2011...411, 470
Decision on Ieng Thirith’s Fitness to Stand Trial, Nuon Chea and others
(002/19-09-2007-ECCC-E138), TC, 17 November 2011...410, 470–479, 488
Response to Issues Raised by Parties in advance of Trial and Scheduling of Informal
meeting with Senior Legal Officer on 18 November 2011, Nuon Chea and others
(002/19-09-2007-ECCC-E141), TC, 17 November 2011...410, 421–422, 448
Co-Prosecutors' Request for Stay of Release of Accused Ieng Thirith, Nuon Chea
and others (002/19-09-2007/ECCC-E138/1/2), TC, 18 November 2011...479
Advance Notice of Assignment of Examination of three Civil Parties dur-
ing first Trial Segment (5-16 December 2011), Nuon Chea and others
(002/19-09-2007-ECCC-E131/10), TC, 23 November 2011...422
590 Table of Cases
Memorandum from Trial Chamber President Nil Nonn, Notice of Trial Chamber's
Disposition of Remaining Pre-Trial Motions (E20, E132, E134, E135, E124/8,
E124/9, E124/10, E136 and E139) and Further Guidance to the Civil Party Lead
Co-Lawyers, Nuon Chea and others (002-02/19-09-2007/ECCC-E145), TC, 29
November 2011...442
List of Paragraphs and Portions of the Closing Order Relevant to Trial One in Case
002, amended further to the Trial Chamber's Decision on Ieng Thirith's Fitness
to Stand Trial (E138), Nuon Chea and others (002/19-09-2007/ECCC-E124/7.2),
TC, 30 November 2011...410
Decision on Motions for Disqualification of Judge Silvia Cartwright, Nuon Chea
and others (002/19-09-2007/ECCC-E137/5), TC, 2 December 2011...57–58, 405
Decision on Immediate Appeal Against the Trial Chamber’s Order to Release
the Accused IENG Thirith, Nuon Chea and others (002/19-09-2007/ECCC-
E138/1/7), SCC, 13 December 2011...164, 410, 480
Dissenting Opinion of Judge Jayasinghe, Decision on Immediate Appeal Against
the Trial Chamber’s Order to Release the Accused Ieng Thirith, Nuon Chea and
others (002/19-09-2007/ECCC-E138/1/7.1), SCC, 13 December 2011...479, 480
Summary of the Reasons for the Decision on Immediate Appeal by Nuon Chea
Against the Trial Chamber’s Decision on Fairness of Judicial Investigation, Nuon
Chea and others (002/19-09-2007/ECCC-E116/1/6), SCC, 30 January 2012...164
Memorandum: Hearing of TCE-38 and TCE-44, Nuon Chea and others
(002/19-09-2007-ECCC-E166), TC, 6 February 2012...422
Decision on Application for Disqualification of Judge Silvia Cartwright, Nuon Chea
and others (002/19-09-2007/ECCC-E171/2), TC, 9 March 2012...59, 60, 406
Decision on Nuon Chea’s Request for a Rule 35 Investigation regarding
Inconsistencies in the Audio and Written Records of OCIJ Witness Interviews,
Nuon Chea and others (002/19-09-2007-ECCC-E142/3), TC, 13 March 2012...405
Decision on Appeal against Trial Chamber’s Decision on Ieng Sary’s Rule 89
Preliminary Objection (ne bis in idem and amnesty and pardon), Nuon Chea
and others (002/19-09-2007/ECCC-E51/15/1/2), SCC, 20 March 2012...80, 382
Decision on Ieng Sary’s Appeal against the Trial Chamber’s Decision on Motions
for Disqualification of Judge Silvia Cartwright, Nuon Chea and others (002/19-
09-2007/ECCC-E137/5/1/3), SCC, 17 April 2012...58, 164
Decision on Immediate Appeal by Nuon Chea against the Trial Chamber’s Decision
on Fairness of Judicial Investigation, Nuon Chea and others (002/19-09-
2007/ECCC-E116/1/7), SCC, 27 April 2012...66
Decision on Rule 35 Applications for Summary Action, Nuon Chea and others
(002/19-09-2007/ECCC-E176/2), TC, 11 May 2012...65–66, 405
Decision on Ieng Sary’s Application for Disqualification of Judge Cartwright,
Nuon Chea and others (002/19-09-2007/ECCC-E191/2), TC, 4 June 2012...59
Decision on Assignment of Experts, Nuon Chea and others (002/19-09-2007/
ECCC-E215), TC, 5 July 2012...447
Decision on Reassessment of Accused Ieng Thirith’s Fitness to Stand Trial following
Supreme Court Chamber Decision of 13 December 2011, Nuon Chea and others
(002/19-09-2007-ECCC-E138/1/10), TC, 13 September 2012...410, 482, 537
Table of Cases 591
Decision on Nuon Chea’s Appeal Against the Trial Chamber’s Decision on

Rule 35 Application for Summary Action, Nuon Chea and others (002/19-09-2007/
ECCC-E176/2/1/4), SCC, 14 September 2012...66
Decision on Co-Prosecutors’ Request to File Supplementary Submissions on
the Appeal Against the Release Order of Ieng Thirith, Nuon Chea and others
(002/19-09-2007/ECCC-E138/1/10/1/3/1), SCC, 17 September 2012...482
Notification of Decision on Co-Prosecutors’ Request to Include Additional Crime
Sites Within the Scope of Trial in Case 002/01 (EI63) and deadline for submis-
sion of applicable law portion of Closing Briefs (TC, Nuon Chea and others
(002/19-09-2007/ECCC-E163/5), TC, 8 October 2012...410, 437
Decision on Rule 35 Request Calling for Summary Action Against Minister of
Foreign Affairs Hor Namhong (E219), Nuon Chea and others (002/19-09-2007/
ECCC-E219/3), TC, 22 November 2012...68
Decision on Application for Immediate Action Pursuant to Rule 35 (E189),
Nuon Chea and others (002/19-09-2007/ECCC-E189/3), TC, 22 November
2012...67, 405
Decision on Accused Ieng Sary’s Fitness to Stand Trial, Nuon Chea and others
(002/19-07-2002/ECCC-E238/9) TC, 26 November 2012...87, 466, 469–470,
486–487
Decision on Defence Requests Concerning Irregularities Alleged to Have Occurred
During the Judicial Investigation (E221, E223, E224, E224/2, E234, E234/2,
E241 and E241/1), Nuon Chea and others (002/19-09-2007-ECCC-E251), TC,
7 December 2012...404
Decision on Immediate Appeal against the Trial Chamber’s Order to Unconditionally
Release Ieng Thirith, Nuon Chea and others (002/19-09-2007-ECCC-E138/
1/10/1/5/7), SCC, 14 December 2012...410, 440, 483
Decision on Ieng Sary’s Request for Reconsideration of the Trial Chamber
Decision on the Accused’s Fitness to Stand Trial and Supplementary Request,
Nuon Chea and others (002/19-09-2007/ECCC-E238/11/1), TC, 19 December
2012...487
Decision on the Ieng Sary Defence Request to Audio and/or Video Record Ieng
Sary in the Holding Cell, Nuon Chea and others (002/19-09-2007/ECCC-
E254/3), TC, 16 January 2013...468
Decision on the Co-Prosecutors' Immediate Appeal of the Trial Chamber's
Decision Concerning the Scope of Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E163/5/1/13), SCC, 8 February 2013...29, 93, 412, 437,
438, 441–443, 456
Memorandum on Directions to the Parties in Consequences of the Supreme
Court Chamber’s Decision on Co-Prosecutor’s Immediate Appeal of the Trial
Chamber’s Decision concerning the Scope of Case 002/01, Nuon Chea and
others (002/19-09-2007-ECCC-E163/5/1/13/1), TC, 12 February 2013...412
Termination of the Proceedings Against the Accused Ieng Sary, Nuon Chea and
others (002/19-09-2007/ECCC-E270/1), TC, 14 March 2013...127, 410, 487
Post Mortem Dismissal of Ieng Sary’s Immediate Appeals, Nuon Chea and others
(002/19-09-2007/ECCC-E238/9/1/5), SCC, 21 March 2013...469
592 Table of Cases
Decision on Nuon Chea’s ‘Immediate Appeal Against the Trial Chamber Decision
on Application for Immediate Action Pursuant to Rule 35’, Nuon Chea and oth-
ers (002/19-09-2007/ECCC-E189/3/1/8), SCC, 25 March 2013...67
Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, Nuon Chea and
others (002/19-09-2007/ECCC-E256/5), TC, 2 April 2013...411, 462, 465–466,
468, 485
Decision on Severance of Case 002 following Supreme Court Chamber Decision
of 8 February 2013, Nuon Chea and others (002/19-09-2007/ECCC-E284), TC,
26 April 2013...287, 412, 440, 443, 446
Order on Measures to be Imposed on IENG Thirith, Nuon Chea and others
(002/19-09-2007-ECCC-E138/1/10/1/5/8/4), TC, 19 July 2013...410
Decision on Immediate Appeals of the Trial Chamber's Second Decision on Severance
of Case 002, Nuon Chea and others (002/19-09-2007/ECCC-E284/417),
SCC, 23 July 2013...29, 413–414
Decision on Immediate Appeals against Trial Chamber’s Second Decision on
Severance of Case 002, Nuon Chea and others (002/19-09-2007-ECCC-E284/4/8),
SCC, 25 November 2013...413, 438, 439, 440, 441, 445, 451–452
Memorandum from Trial Chamber President Nil Nonn, Scheduling of and Agenda
for Trial Management Meeting in Case 002/02 (11-13 December 2013), Nuon
Chea and others (002-02/19-09-2007/ECCC-E301/3), TC, 5 December 2013...446
President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial
Chamber to Try the Remaining Charges in Case 002, Nuon Chea and others
(002/19-09-2007-ECCC-E301/4), TC, 20 December 2013...29, 414, 446
Clarification Regarding the Use of Evidence and the Procedure for Recall of
Witnesses, Civil Parties and Experts from Case 002/01 in Case 002/01, Nuon Chea
and others (002/19-09-2007/ECCC-E302/5), TC, 7 February 2014...409, 415, 451
Decision on Accused’s Fitness to Stand Trial and Order Assigning Experts,
Nuon Chea and others (002/19-09-2007/ECCC-E301/10), TC, 17 February
2014...488
Decision on Khieu Samphan Request to Postpone Commencement of Case 002/02
until a Final Judgment is Handed Down in Case 002/01, Nuon Chea and others
(002/19-09-2007/ECCC-E301/5/5/1), TC, 21 March 2014...415, 456
Decision on Additional Severance of Case 002 and Scope of Case 002/02, Nuon
Chea and others (002/19-09-2007/ECCC-E301/9/1), TC, 4 April 2014...258,
331, 346, 436, 439, 414–415, 440–441, 445, 453
Decision on Fitness of the Accused Khieu Samphan to Stand Trial, Nuon Chea
and others (002/19-09-2007/ECCC-E301/11), TC, 25 April 2014...411, 486
Decision on Fitness of the Accused Nuon Chea to Stand Trial, Nuon Chea and
others (002/19-09-2007/ECCC-E301/11), TC, 25 April 2014...411
Decision on Khieu Samphan’s Immediate Appeal against the Trial Chamber’s
Decision on Additional Severance of Case 002 and Scope of Case 002/02,
Nuon Chea and others (002/19-09-2007-ECCC-E301/9/1/1/3), SCC, 29 July
2014...415, 439, 441, 445–446, 451–458
Judgment, Nuon Chea and others (002/19-09-2007/ECCC-E313), TC, 7 August
2014...29, 93, 104, 106, 124, 172, 178, 183–185, 220, 292, 330, 371, 379, 391,
413, 450, 483, 495, 525, 537, 456
Table of Cases 593
Decision on Sequencing of Trial Proceedings in Case 002/02, Nuon Chea and

others (002/19-09-2007/ECCC-E315), TC, 12 September 2014...414, 450
Decision on Khieu Samphan’s Request to Postpone the Commencement of Case
002/02, Nuon Chea and others (002/19-09-2007/ECCC-E314/5), TC, 19
September 2014...415
Scheduling Order for Hearing on the Substance in Case 002/02, Nuon Chea and
others (002/19-09-2007/ECCC-E316), TC, 19 September 2014...416
Memorandum from Acting Trial Chamber President Ya Sokhan, Clarification on the
Consequences of the Severance of Case 002, Nuon Chea and others (002-02/19-09-
2007/ECCC-E318), TC, 13 October 2014...452
Ruling following TMM of 28 October 2014, Nuon Chea and others (002/19-09-
2007/ECCC-E320/1), TC, 31 October 2014...416
Scheduling Order for Evidentiary Proceedings, Nuon Chea and others
(002/19-09-2007/ECCC-E322), TC, 3 November 2014...415
Decision on Applications for the Disqualification of Trial Chamber Judges,
Nuon Chea and others (002/19-09-2007/ECCC-E314/12), TC, 14 November
2014...55, 69–70, 405, 457
Order to Refer Conduct of Counsel for Khieu Samphan to Appropriate Professional
Bodies, Nuon Chea and others (002/19-09-2007/ECCC-E330), TC, 19 December
2014...416
Other cases
Considerations of the Pre-Trial Chamber on the Disagreement between the
Co-Prosecutors pursuant to Internal Rule 71 (publicly redacted version),
(Disagreement No. 001/18-11-2008/ECCC), PTC, 18 August 2009...30
Note of the International Reserve Co-Investigating Judge to the Parties on the
Egregious Dysfunction Within the ECCC Impeding the Proper Conduct of
Investigations in Cases 003 and 004, ECCC (21 March 2012)...52
Decision of the Phnom Penh Municipal Court (E138/1/10/1/2/3.1), 14 September
2012...482
EUROPEAN COURT OF HUMAN RIGHTS
Ireland v. United Kingdom App no 5310/71 (ECHR, 18 January 1978)...502, 504

Artico v. Italy App no 6694/74 (ECHR, 13 May 1980)...502
Herczegfalvy v. Austria App no 10533/83 (ECHR, 24 September 1992)...481
Lala v. the Netherlands App no 14861/89 (ECHR, 22 September 1994)...86
Cyprus v. Turkey App no 6780/74 (Comission Decision, 10 July 1976)...314
Cyprus v. Turkey App no 6950/75 (Comission Decision, 10 July 1976)...314
Cyprus v. Turkey App no 25781/94 (ECHR, 11 July 1997)...314
Geyseghem v. Belgium App no 26103/95 (ECHR, 21 January 1999)...86
Krombach v. France, App no 29731/96 (ECHR, 13 February 2001)...86
Medenica v. Switzerland App no 20491/92 (ECHR, 14 June 2001)...86
594 Table of Cases
Jalloh v. Germany App no 54810/0 (ECHR, 11 July 2006)...500

Ould Dah v. France App no 13113/03 (ECHR, 17 March 2009)...85, 98
Gäfgen v. Germany App no 22978/5 (ECHR, 1 June 2010)...500, 504–505
Othman (Abu Qatada) v. United Kingdom App no 8139/09 (ECHR, 17 January
2012)...503, 512
El Haski v. Belgium App no 649/08 (ECHR, 25 September 2012)...503
INTERNATIONAL CRIMINAL COURT
Decision of the Plenary of Judges on the Application of the Legal Representative

for Victims for the Disqualification of Judge Christine Van den Wyngaert,
Katanga (ICC-01/04-01/07-3504-Anx), Plenary of Judges, 22 July 2004...519
Decision on the Applications for Participation in the Proceedings of VPRS 1,
VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Situation in the Democratic
Republic of the Congo (ICC-01/04-101), PTC I, 17 January 2006...522
Decision on Victims’ Participation, Lubanga (ICC-01/04-01/06-1119), TC I, 18
January 2008...519
Separate and Dissenting Opinion of Judge Rene Blattmann, Public Decision on
Victims’ Participation, Lubanga (ICC-01/04-01/06-1119), TC I, 18 January
2008...530
Judgment on the Appeals of The Prosecutor and The Defence against Trial
Chamber I’s Decision on Victims’ Participation of 18 January 2008, Lubanga
(ICC-01/04-01/06-1432), AC, 11 July 2008...529
Order on the Organization of Common Legal Representation of Victims, Katanga
(ICC-01/04-01/07-1328), TC II, 22 July 2009...522
Directions for the Conduct of the Proceedings and Testimony in accordance
with Rule 140, Katanga and Ngudjolo (ICC-01/04-01/07-1665), TC II, 20
November 2009...396
Decision on the Modalities of Victim Participation at Trial, Katanga and Ngudjolo
(ICC-01/04-01/07-1788-tENG), TC II, 22 January 2010...396
Decision on the Modalities of Victim Participation at Trial, Katanga (ICC-01/04-
01/07-1788), TC II, 22 January 2010...520, 522
Judgment on the Decision on the Modalities of Victim Participation at Trial,
Katanga (ICC-01/04-01/07-2288), AC, 16 July 2010...520
Decision on Common Legal Representation of Victims for the Purpose of Trial,
Bemba (ICC-01/05-01/08-1005), TC III, 10 November 2010...529
Decision on Directions for the Conduct of the Proceedings, Bemba (ICC-01/05-
01/08-1023), TC III, 19 November 2010...396
Order Instructing the Registry to Start Consultations on the Organization of
Common Legal Representation, Banda and Jerbo (ICC-02/05-03/09-138), TC
IV, 21 April 2011...526
Report on the Implementation of the Chamber’s Order Instructing the Registry
to Start Consultations on the Organization of Common Legal Representation,
Banda and Jerbo (ICC-02/05-03/09-164-Red), Registry, 21 June 2011...527
Table of Cases 595
Report on the Organization of Common Legal Representation, Banda and Jerbo

(ICC-02/05-03/09-187), Registry, 5 August 2011...527
Judgment pursuant to Article 74 of the Statute, Lubanga (ICC-01/04-01/06-2842),
TC I, 14 March 2012...525
Proposal for the Common Legal Representation of Victims, Gbagbo (ICC-02/11-
01/11-120), Registry, 16 May 2012...528
Decision on Common Legal Representation, Banda and Jerbo (ICC-02/05-03/09-
337), TC IV, 25 May 2012...527–528
Decision on Victims’ Representation and Participation, Muthaura and Kenyatta
(ICC-01/09-02/11-498), TC, 3 October 2012...543
Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial,
Ruto and Sang (ICC-01/09-01/11), TC, 18 June 2013...467
Judgment on the Appeal of the Prosecutor against the decision of Trial Chamber
V(a) of 18 June 2013 entitled ‘Decision on Mr Ruto’s Request for Excusal
from Continuous Presence at Trial’, Ruto and Sang (ICC-01/09-01/11), AC, 25
October 2013...467
Reasons for the Decision on Excusal from Presence at Trial under Rule 134quater,
Ruto and Sang (ICC-01/09-01/11), TC, 18 February 2014...468
Judgment on the appeal against the “Decision establishing the principles and
procedures to be applied to reparations” of 7 August 2012 with AMENDED
order for reparations (Annex A), Lubanga (ICC-01/04-01/06) AC, 3 March
2015...178
INTERNATIONAL COURT OF JUSTICE,

PERMANENT COURT OF INTERNATIONAL JUSTICE
AND PERMANENT COURT OF ARBITRATION
S.S. Lotus Case (France v. Turkey), Judgment, PCIJ (Series A – No.10), 7 September
1927...249
Nottebohm Case (Lichtenstein v. Guatemala), ICJ Judgment of 6 April 1955...273, 295
State of Eritrea and Federal Democratic Republic of Ethiopia (Eritrea Ethiopia
Claims Commission), 1 July 2003...360, 367, 370
Case Concerning the Application of the Convention on the Prevention and
Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
ICJ Judgment of 26 February 2007...279
Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), ICJ Judgment of 20 July 2012...98
596 Table of Cases
INTERNATIONAL CRIMINAL TRIBUNAL

FOR RWANDA
Judgment, Akayesu (ICTR-96-4-T), TC I, 2 September 1998...193, 263, 269–270,

273, 276–278, 281, 337–338, 343
Judgment and Sentence, Rutaganda (ICTR-96-3-T), TC, 6 December 1999...278
Judgment and Sentence, Musema (ICTR-96-13-A), TC I, 27 January 2000...264,
272, 277–278
Judgment, Kayishema and Ruzindana (ICTR-95-1-A), AC, 1 June 2001...204, 210,
264, 280
Judgment, Akayesu (ICTR-96-4-A), AC, 1 June 2001...166, 193
Judgment, Bagilishema (ICTR-95-1A-T), TC I, 7 June 2001...263, 272
Judgment and Sentence, Semanza (ICTR-97-20-T), TC III, 15 May 2003...272
Decision on the Preliminary Motions by the Defence of Joseph Nzirorera,
Édouard Karemera, Andre Rwamakuba and Mathieu Ngirumpatse Challenging
Jurisdiction in relation to Joint Criminal Enterprise, Karemera and others
(ICTR-98-44-T), TC III, 11 May 2004...207
Decision on Interlocutory Appeal Regarding Application of Joint Criminal
Enterprise to the Crime of Genocide, Rwamakuba (ICTR-98-44-AR72.4), AC,
22 October 2004...215, 247
Judgment, Ntakirutimana and Ntakirutimana (ICTR-96-10-A and ICTR-96-17-A),
AC, 13 December 2004...196, 204, 210
Judgment, Gacumbitsi (ICTR-2001-64-A), AC, 7 July 2006...207
Judgment, Muvunyi (ICTR-2000-55A-T), TC, 12 September 2006...293
Decision on Interlocutory Appeal, Zigiranyirazo (ICTR-01-73-AR73), AC, 30
October 2006...464–465
Judgment, Simba (ICTR-01-76-A), AC, 27 November 2007...204
Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at
Trial, Karemera et al. (ICTR-98-44-AR73.10), AC, 5 October 2007...464–465
Judgment, Nahimana, Barayagwiza, Ngeze (ICTR-99-52-A), AC, 28 November
2007...87
Judgment, Munyakazi (ICTR-97-36A-A), Judgment, AC, 28 September 2011...204, 219
Judgment, Bagasora and Nsengiyumva (ICTR-98-41-A), AC, 14 December
2011...464–465
Judgment, Kanyarukiga (ICTR-02-78-A), AC, 8 May 2012...167
Judgment, Karemera and Ngirumpatse (ICTR-98-44-A), AC, 29 September
2014...252
Table of Cases 597
INTERNATIONAL CRIMINAL TRIBUNAL

FOR THE FORMER YUGOSLAVIA
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić

(IT-94-1), AC, 2 October 1995...89, 365
Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and
Evidence, Karadzić and Mladić (IT-95-5-R61 and IT-95-18-R61), TC, 11 July
1996...284
Judgment, Erdemović (IT-96-22-A), AC, 7 October 1997...167
Separate and Dissenting Opinion of Judge Cassese, Judgment, Erdemović (IT-96-
22-A), AC, 7 October 1997...239, 250–251
Judgment, Delalić and others (IT-96-21-T), TC, 16 November 1998...365, 454
Judgment, Furundžija (IT-95-17/1-T), TC, 10 December 1998...98, 204, 337–338,
342, 369
Judgment, Tadić (IT-94-1-A), AC, 15 July 1999...167, 193, 204–210, 213, 226,
234, 237–238, 365–366
Judgment, Jelisić (IT-95-10-T), TC, 14 December 1999...275–280
Judgment, Kupreškić and others (IT-95-16-T), TC, 14 January 2000...239, 249
Appeal Judgment, Furundžija (IT-95-17/1), AC, 21 July 2000...54, 357
Decision on the Motions of Drago Josipovic, Zoran Kupreškic and Vlatko
Kupreškic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial
Notice to Be Taken Pursuant to Rule 94(B), Kupreškic and others, (IT-95-16),
AC, 8 May 2001...455
Judgment, Jelisić (IT-95-10-A), AC, 5 July 2001...280
Judgment on Defence Motions to Acquit, Sikirica and others (IT-95-8-T), TC, 3
September 2001...263, 279–280
Judgment, Kupreškić and others (IT-95-16-A), AC, 23 October 2001...166
Judgment, Krnojelac (IT-97-25-T), TC, 15 March 2002...229
Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order
Joinder, Milošević (IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73), AC, 18
April 2002...453
Judgment, Kunarac and others (IT-06-23&IT-96-23/1-A), AC, 12 June 2002...168,
195, 337–338
Decision on Prosecution’s Oral Request for the Separation of Trials, Brđanin and
Talic (IT-99-36), TC, 20 September 2002...464
Sentencing Judgment, Simić (IT 95-9/2-S), 17 October 2002...87
Judgment, Vasiljević (IT-98-32-T), TC, 29 November 2002...229
Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and
for Admission of Written Statements of Witnesses Pursuant to Rule 92bis,
Krajišnik (IT-00-39-PT), TC, 28 February 2003...454
Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint
Criminal Enterprise, Milutinović and others (IT-99-37-AR72), AC, 21 May
2003...208–209
Judgment, Stakić (IT-97-24-T), TC, 31 July 2003...293
598 Table of Cases
Judgment, Krnojelac (IT-97-25-A), AC, 17 September 2003...207, 228–229, 293–

294, 302, 317
Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s
10 April 2003 Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts, S. Milosevic (IT-02-54-AR73.5), AC, 28 October 2003...455
Judgment, Vasiljević (IT-98-32-A), AC, 25 February 2004...204, 207
Judgment, Krstić (IT-98-33-A), AC, 19 April 2004...263, 270, 272, 274, 276, 279,
281, 283, 285
Decision re Defence Motion to Terminate Proceedings, Strugar (IT-01-42-T), TC,
26 May 2004...471
Judgment, Blaškić (IT-95-14), AC, 29 July 2004...193, 280
Judgment, Brđanin (IT-99-36-T), TC II, 1 September 2004...277, 279
Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the
Assignment of Defence Counsel, Milošević (IT-02-54-AR73.7), AC, 1 November
Judgment, Kordić and Čerkez (IT-95-14/2-A), AC, 17 December 2004...193

2004...89
Judgment, Blagojević and Jokić (IT-02-60-T), TC I, 17 January 2005...272, 277, 281

Judgment, Kvočka and others (IT-98-30/1-A), AC, 28 February 2005...204,
207–208, 228–229
Decision on Accused’s Fitness to Enter a Plea and Stand Trial, Kovacevic (IT-01-
42/2), TC, 12 April 2006...474
Judgment, Stakić (IT-97-24-A), AC, 22 March 2006...204, 207, 275, 292
Judgment, Naletilić and Martinović (IT-98-34-A), AC, 3 May 2006...293, 302, 307
(Redacted) Third Amended Indictment, Šainović and others (IT-05-87-PT), 21
June 2006...219
Judgment, Brđanin (IT-99-36-A), AC, 3 April 2007...204, 208, 215, 219
Decision on Defence Appeal of the Decision on Future Course of Proceedings,
Stanišic and Simatovic (IT-03-69-AR73.2), AC, 16 May 2008...464
Judgment, Strugar (IT-01-42-A), AC, 17 July 2008...470
Judgment, Martić (IT-95-11-A), AC, 8 October 2008...193, 208
Judgment, Krajišnik (IT-00-39-A), AC, 17 March 2009...204, 208, 220, 223, 224,
225, 292–293
Decision on Appointment of Council and order on further Trial Proceedings,
Karadžić (IT-95-5/18-T), TC, 5 November 2009...88
Decision on Consolidated Prosecution Motion to Sever the Indictment, to Conduct
Separate Trials and to Amend the Indictment, Mladić (IT-09-92-PT), TC, 13
October 2011...439, 446–447, 453, 456–459
Judgment, Lukić and Lukić (IT-98-32/1-A), AC, 4 December 2012...196
Judgment, Perišić (IT-04-81-A), AC, 28 February 2013...190
Judgment, Šainović and others (IT-05-87-A), AC, 23 January 2014...190, 219
Judgment, Đorđević (IT-05-87/1-A), AC, 27 January 2014...204, 207, 209, 215,
219, 252
Judgment, Popović and others (IT-05-88-A) AC, 30 January 2015...166
Table of Cases 599
INTERNATIONAL MILITARY TRIBUNAL

AND CONTROL COUNCIL NO. 10 CASES
Judgment, Göring and others, International Military Tribunal, 1 October 1946...87,

232, 248, 250, 253, 299–313, 316
Judgment, Milch (Case No. 2, ‘The Milch Case’), Military Tribunal II, 17 April
1947...293, 295–296, 299–302, 307–309, 317–318
Judgment, Pohl and others (Case No. 4, ‘The Pohl Case’), Military Tribunal II, 3
November 1947...298, 301–318
Judgment, Altstoetter and others (Case No. 3, ‘The Justice Case’), Military
Tribunal III, 4 December 1947...293, 295–296, 298, 301–305, 312–313,
316–317
Judgment, von Leeb and others (Case No. 12, ‘The High Command Case’),
Military Tribunal V, 19 February 1948...299, 301, 305–308, 312–313, 317, 365
Judgment, List and others (Case No. 7, The ‘Hostage Case’), Military Tribunal V,
19 February 1948...295, 298, 305–306, 308, 312–313, 316
Judgment, Greifelt and others (Case No. 18, ‘The RuSHA Case’), Military
Tribunal I, 10 March 1948...215, 245–247, 250, 299–302, 305–308, 312–316
Judgment, Ohlendorf and others (Case No. 9, ‘The Einsatzgruppen Case’),
Military Tribunal II, 8-9 April 1948...295, 304
Judgment, Krupp and others (Case No. 10, ‘The Krupp Case”), Military Tribunal
III, 31 July 1948...293, 295–296, 299, 307, 308–312, 317–318
Judgment, von Weizsaecker and others (Case No. 11, ‘The Ministries Case’),
Military Tribunal IV, 31 July 1948...239, 299–317, 367
Decision and Judgment of the Tribunal, Krauch and others (Case No. 6, ‘The I.G.
Farben Case’), Military Tribunal IV, 31 July 1948...299, 305, 308–309, 312, 315
Supplement Judgment, Pohl and others (Case No. 4, ‘The Pohl Case’), Military
Tribunal II, 11 August 1948...307–308, 312–313
INTERNATIONAL MILITARY TRIBUNAL

FOR THE FAR EAST
Judgment, United States of America v Araki et al., 4 November 1948...473
MECHANISM FOR INTERNATIONAL CRIMINAL

TRIBUNALS
Judgment, Augustin Ngirabatware, (MICT-12-29-A), AC, 18 December 2014...166

600 Table of Cases
SPECIAL COURT FOR SIERRA LEONE
Withdrawal of Indictment, Sankoh (SCSL-2003-02-I), TC, 8 December 2003...474

Decision to Challenge Jurisdiction Kallon (SCSL-2004-15-AR-2) and Kamara
(SCSL-2004-16-AR-2), AC, 13 March 2004...99
Judgment, Fofana and Kondewa (SCSL-04-14-T), TC, 2 August 2007...210
Judgment, Brima, Kamara and Kanu (SCSL-2004-16-T), TC, 20 June ..239, 337
Judgment, Sesay, Kallon, Gbao (SCSL-04-15-T), 2 March 2009...329, 337
Judgment, Brima, Kamara and Kanu (SCSL-04-16-A), AC, 22 February 2008...5,
171, 205, 210, 327
Judgment, Sesay, Kallon and Gbao (SCSL-04-15-A), AC, 26 October 2009...205
Judgment, Taylor (SCSL-03-01-T), TC, 18 May 2012...205, 331
Judgment, Taylor (SCSL-03-01-A), AC, 26 September 2013...190
SPECIAL PANEL FOR SERIOUS CRIMES—EAST

TIMOR
Findings and Order on Defendant Nahak’s Competence to Stand Trial, Nahak,

(SPSC-01A/2004), 1 March 2005...470–471
Judgment, Cardoso (SPSC-04/2001), 5 April 2003...205
Judgment, Perreira (SPSC-34/2003), 27 April 2005...205
SPECIAL TRIBUNAL FOR LEBANON
Decision on Appeal of Pre-trial Judge’s Order Regarding Jurisdiction and

Standing, (CH/AC/2010/02), AC, 10 November 2010...175
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,
Perpetration, Cumulative Charging (STL-11-01/1/I/AC/R176bis), AC, 16
February 2011...205, 207, 211, 241–242, 246
WORLD WAR II MILITARY COURT CASES
United States of America v. Martin Gottfried Weiss and others, General Military
Government Court of the United States at Dachau, 15 November 1945 – 13
December 1945...240–245
Trial of Erich Heyer and Six Others, British Military Court for the War
Criminals,Essen, 18th-19th and 21st-22nd December 1945...216, 217, 233, 234,
235, 237, 250
Table of Cases 601
United States of America v. Kurt Goebell and others, (Case No. 12-489), General
Military Government Court in Ludwigsburg, Germany, 6 February – 22 March
1946...235–240, 243, 247–251
Sakai, Chinese War Crimes Military Tribunal of the Ministry of National
Defence,Nanking, 29 August 1946...317, 340
United States of America v. Karl Adami and others, (Case No. 000-50-2-1),
Intermediate Military Government Court in Dachau, Germany, 11-14 October
1946...245
United States of America v. Hans Ulrich and Otto Merkle, (Case No. 000-50-
2-17), General Military Government Court of the United States at Dachau,
Germany, 12-22 November 1946...218, 240–245
United States of America v. Stefan Koch and others, (Case No. 000-50-2-55),
Intermediate Military Government Court in Dachau, Germany, 20-21 January
1947...243
United States of America v. Hans Wuelfert and others, (Case No. 000-50-2-72),
General Military Government Court of the United States at Dachau, Germany,
12-17 March 1947...218, 240–245
Judgment, Becker and others, Permanent Military Tribunal at Lyon, 17 July
1947...307–308, 315, 317–318
DOMESTIC CASES
France
Cour d’Assises de Paris, Judgment of 17 December 2010, Condreras et al....85
Germany
Oberstes Gericht der DDR, Judgment of 23 July 1963...81
Oberstes Gericht der DDR, Judgment of 25 March 1966...81
Bundesverfassungsgericht, Decision of 31 March 1987, 2 BvM 2/86...95
Oberlandesgericht Köln, Judgment of 3 July 2007, 2 Ws 156/07...85
Landgericht Aachen, Judgment of 23 March 2010, 52 Ks 45 Js 18-83 10/09...85
Bundesgerichtshof Order of 14 September 2010, 3 StR 573/09...500
Bundesgerichtshof, Decision of 25 October 2010, 1 StR 57/10...85
Bundesgerichtshof, Decision of 1 December 2010, 2 StR 420/10...85
Bundesverfassungsgericht, Decision of 15 December 2011, 2 BvR 148/11...85, 95
Israel
Judgment, Eichmann (Case No. 40/61), District Court of Jerusalem, 11 December
1961...293–294, 299–318
Poland
Judgment, Greiser, Supreme National Tribunal of Poland, 7 July 1946...294, 299–
303, 308, 311–318
Judgment, Buhler, Supreme National Tribunal of Poland, 10 July 1948...294,
303–318
602 Table of Cases
United Kingdom
In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 576 (Lord
Lloyd) (HL)...503
A and Others v. Secretary of State for the Home Department (No.2) [2005] UKHL
71, [2006] 2 AC 221...492, 502
R (N) v. Mental Health Tribunal (Northern Region) [2005] EWCA Civ 1605,
[2006] QB 468...503
Secretary of State for the Home Department v. MB [2007] UKHL 46, [2008] 1 AC
440...500
RB (Algeria) v. Secretary of State for the Home Department [2009] UKHL 10,
[2010] 2 AC 110...502
United States of America
Ex Parte Quirin et al v Cox, Provost Marshal, 317 U.S. 1 (1942)...304
In re Territo, 156 F.2d 142 (9th Cir. 1946)...364
Fong Foo v. United States, 369 U.S. 141 (1962), 19 March 1962...94
United States, Appellee v William L Calley, Jr., First Lieutenant, US Army,
Appellant, 22 USCMA 534, 21 December 1973...367
Jackson v. Indiana, 406 U.S. 715, 738 (1972)...481
Sell v. United States, 539 U.S. 166, 179 (2003)...481.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)...214, 497
Other Case
Judgment of the Revolutionary People’s Tribunal held in Phnom Penh from 15 to
19 August 1979, UN Doc. A 34/491, 20 September 1979...78
Index
A ASEAN (Association of Southeast Asian

Abuse of process, 174 States), 151
Accusatorial system, See civil law system Apology, 162, 177
Accused Actus reus
Appointment of counsel, 89 Aiding and abetting, 190
Assignment of counsel, 89, 163 Enslavement, 168
Burden of proof, 56, 263, 400, 405, 429, Genocide, 278, 279
491–493, 501–503 Inhumane acts (forced marriage), 328
Examination of witnesses, 396, 419 Rape, 336, 337, 343
Expeditious trial, 8, 409, 423, 425, 435, Torture, 340
437, 439, 444, 541–543 Ad hoc international tribunals, 31, 72, 129,
Fitness to stand trial, 8, 87, 409–411, 461 143, 155, 166, 199, 203–204, 210,
et seq. 221, 226, 252, 264, 269, 270 et seq.,
Fundamental rights of, 483, 489 277, 286, 289, 386, 389, 392, 396,
Health of, 8, 425, 440 et seq., 484 427, 431, 465–466, 516
Initial appearance, 87, 471 See International Criminal Tribunal for
Length of trial, 425 Rwanda (ICTR)
Presence of, 466–467 See International Criminal Tribunal for
Presumption of innocence, 65–66, 90, the Former Yugoslavia (ICTY)
457–458, 479, 510 Additional Protocol I, 193, 297, 365
Public hearing, 54–64, 86, 425, 477 Grave breaches, 364
Questioning of, 440, 519, 541 Additional Protocol II, 297
Right of, generally, 24, 46, 86, 119, 217, Administration of justice, 46, 52, 65–69, 86,
426, 444–449, 455, 468, 470, 478 et 103, 115, 118, 121
seq., 518, 529, 542 et seq., 562 Admissibility of evidence, 491, 494, 500, 510
Self-incrimination, 405, 427, 505 Hearsay, 498
Time to prepare defence, 116, 436 Documentary evidence, 15, 417, 453,
Adversarial system, 389 et seq., 441 et seq. 454, 516
See Common law system Admissions, 8, 64, 304, 343, 398, 405, 408,
ADHOC (Cambodian Human Rights 417, 419, 427, 431, 452, 454, 455,
Development Association), 149, 151, 492, 499
538, 545 African Union, 9, 42
Administration, Office of (OA), 24, 32, 119, Aiding and abetting, 181, 187, 190–191, 277,
128, 131–132, 456, 465 278, 308, 330
See Office of Adminstration (ECCC) Amnesty, 19, 23, 25, 40, 77, 79, 80, 95,
Annan, Kofi, 18, 105, 125 97–100, 364, 384, 413, 532
Angkar, 2, 92, 330 Amnesty International, 40, 84, 150, 347, 497

DOI 10.1007/978-94-6265-105-0
604 Index
Appeal(s) Cham, 284, 414

See also Supreme Court Chamber, appeals Child, children, xii, 91, 115, 129, 246–247, 262,
proceedings 297–298, 302, 308, 310, 314, 316, 318,
Armed conflict, 3, 22, 27, 194, 285, 354, 324, 328, 330, 349, 370, 478, 482, 552
362–363, 365, 371, 381 China, People’s Republic, 256
International, 7, 285, 297, 363 Choeung Ek or Killing fields, 15
Nexus requirement for crimes against Chum Mey, 547
humanity, 192–195, 345, 353 et seq., Civilian
362 nationality, 294
Sexual violence, 271, 329 superior, 191
Non-international, 297, 364 war crime, 161, 227, 234 et seq., 306, 353
Assembly of States Parties of the ICC (ASP), et seq.
467, 525 Civilian population, 185, 192–195, 236, 297,
Attack(s) 308, 327, 343, 353 et seq., 448, 553
Against the civilian population, 185, Definition of, 192, 193
192–195, 327, 343 See also crimes against humanity
Systematic, 15, 185, 192–193, 344, 449, 553 Civil law system, 27, 32, 85, 94, 396, 397,
Widespread, 15, 185, 192–193, 344, 402, 424–425, 517, 521
448–449, 553 Civil Parties, 28, 30 et seq., 42, 43, 103, 107
et seq., 120, 127, 178, 181, 199 et seq.,
268–270, 285 et seq., 322 et seq., 340
B et seq., 390, 391, 396, 398, 401, 407,
Ban Ki-Moon, 30, 48–49, 119 409, 417 et seq., 437, 442, 447–448,
Bangladesh, 16, 28, 42, 339, 345 451, 459, 464, 468, 512, 515 et seq.,
Bar Association of the Kingdom of Cambodia 535 et seq.
(BACK), 134, 148 Civil Party Lawyers, 27–28, 33–34, 114,
Bias, 45 et seq., 80, 90–91, 201, 403, 435, 176, 273, 401, 411, 418–419, 421, 422,
439, 456, 459 442, 447–448, 459, 477, 519, 523, 535,
See also independence and impartiality 541 et seq., 546, 549
Blunk, Sigfried, 50–52, 117 Civil Party participation, 33, 107, 114, 199,
Buddhism, Buddhist, 16, 84, 117, 280, 282, 334, 393, 518, 524, 535 et seq.
329, 416 Common legal representative (CLR), 31,
522, 525 et seq., 531, 549, 543
Consolidated group, 33, 177, 200, 270,
C 288, 459, 519, 523, 529, 541 et seq.
Cambodian Government, Royal Government Lead Co-Lawyers, 33–34, 111, 114, 178,
of Cambodia (RGC), x, 3, 4, 13, 14, 17, 270, 288, 340, 398, 411, 421, 422, 442,
19, 20, 23–25, 30, 31, 35–36, 38, 41, 447, 477, 515, 519, 523, 541, 549
46 et seq., 62, 67, 69–70, 72–73, 78, Reparations, 9, 31 et seq., 103 et seq., 112
81, 83, 93, 97, 103, 105–106, 117–118, et seq., 130, 159 et seq., 175 et seq.,
127, 129, 130, 134, 141–142, 144, 181 et seq., 199–200, 330, 419, 438,
146–147, 150–151, 170, 177, 182, 265, 439, 512, 518–519, 538–539, 541, 548
340, 393, 405, 430, 479, 521, 536 Closing arguments, final arguments, 89, 189,
Cambodian Human Rights Actions 446
Committee, x, xi, 9, 41, 131, 107, 109, Closing Order, 8, 14, 27, 28, 30, 33, 79–80, 90
113, 118–119, 131, 149, 150, 391, 536, et seq., 96, 98, 169, 175, 186–187, 189,
544–545 194, 196, 217 et seq., 225 et seq., 257,
Capacity Building, 130, 133, 151 259 et seq., 267, 269, 271 et seq., 278
Cartwright, Silvia, 54–61, 70, 72–73, 227, et seq., 325 et seq., 242 et seq., 363 et
405, 414, 448, 524 seq., 378 et seq., 398, 404, 408 et seq.,
Case 003, 30, 49, 51–52, 117–118, 127, 172, 418, 422, 424 et seq., 435–436, 441,
206, 332–333, 346 443, 447, 450, 453, 463, 482, 484
Case 004, 30, 51, 117–118, 127, 206, 261, 321, Coalition Government of Democratic
323, 333 et seq., 343, 346–347, 536 Kampuchea, 17, 18
Index 605
Combatant, 99, 115, 281, 323, 364 Apartheid, 298, 302, 314, 316
Command responsibility, 94, 497 Deportation, 22, 29, 219, 247, 263, 283,
See also superior responsibility 291 et seq., 307 et seq., 312 et seq., 355
Common Article 3 to the Geneva Conventions, Enslavement, 26, 84, 161, 164–165, 167 et
369 seq., 227, 296, 308–309, 326–327, 329,
Common Criminal Purpose, 221, 227 331 et seq., 346, 351
See also Joint Criminal Enterprise (JCE) Extermination, 82, 93, 127, 161, 164, 169–
Common law system, 31, 94, 288, 396, 402, 170, 181–182, 185 et seq., 189, 195 et
425, 475 seq., 207, 223, 227, 232, 245–246, 303,
See also adversarial system 305 et seq., 333, 346, 409
Confrontation, 108, 150, 398, 403, 417, 425 Forced marriage, 7, 28, 117, 185, 191, 263,
Constitution, 17, 37, 39, 84, 94, 97, 175, 380, 308, 321 et seq., 338, 342 et seq., 346
481, 493 et seq., 414, 436, 443, 447–448, 459
Conviction Forced transfer, 2, 6, 97, 115, 127, 184
Cumulative, 164–165, 168–169, 170 et seq., 189, 197–198, 222–223, 244,
Co-Investigating Judge(s) (CIJ) 262, 286, 291 et seq., 297, 307, 309,
Blunk, 50 et seq., 117 312–313, 316, 318–319, 328, 330, 338,
Bunleng, 51–52, 62–63, 258, 270 346, 349, 409, 420, 439, 443, 543
Harmon, Marc, 30, 52, 181, 127, 537 Gravity, 198, 207, 256, 306, 328, 339, 344,
Kasper-Anserment, 45, 50 et seq., 67 444, 478, 504
LeMonde, 56–57, 67, 69–70, 73, 258, 284, Imprisonment See Imprisonment
286–287, 395, 402, 404, 417, 424–425, Murder See Murder
430, 433 Nexus with armed conflict, 192, 194–195,
Constitutional Council (Cambodia), 380 345, 356
Co-Prosecutor(s), 22–23, 26 et seq., 34, Other inhumane acts, 263, 345
38, 49, 57 et seq., 71, 93, 105, 117, Rape See Rape
128, 131, 134, 149, 160, 162 et seq., State policy, 335
169 et seq., 173, 176, 189, 194, 217, Sexual slavery, 326, 332, 348–349
225–226, 253, 271, 277, 282, 285 et Sexual violence, 1, 263, 321 et seq., 329,
seq., 322, 324, 326–327, 330, 333 331, 333–334, 338, 341, 343–344, 347,
et seq., 339–340, 345 et seq., 348, 349–350
377–378, 383, 390, 398 et seq., 409 et Torture See Torture
seq., 420–421, 433, 437, 440 et seq., Criminal Procedure Code (Cambodia), 119,
446–447, 449–450, 453 et seq., 465, 149, 167, 538
474–475, 477 et seq., 482, 493 et seq., Cultural Property, 3, 22, 74, 259, 381–382,
501–502, 506, 510, 518, 523, 541, 544 536
Cayley, 57, 59, 71–72, 364, 372 Cumulative convictions, 164–165, 168 et seq.,
Chea, 49 178
Koumjian, 117
Office of the Co-Prosecutor (OCP), 57,
134, 162, 189, 326–327, 390, 544 D
Petit, 131–132 Defence Support Section (DSS), 33, 130, 133,
Corruption, 40, 45 et seq., 64, 66, 69, 71, 73, 150, 163, 465–466
105, 115, 143 et seq., 155, 183, 390 Destruction of Cultural Property, 22, 74, 253,
Council of Ministries, Cambodia, 20 381–382, 536
Crimes against humanity, 1, 3, 5–6, 9, 15, 18, Detention, 5, 25, 34, 38, 47, 63, 79–80, 82, 96,
22, 26 et seq., 77, 79, 81–82, 92 et seq., 119, 159–160, 162, 172 et seq., 185,
98, 109, 116, 159 et seq., 164–165 et 207, 226 et seq., 299–300, 323, 333,
seq., 178, 181–182, 184 et seq., 192 et 335, 358 et seq., 362, 369–370, 372,
seq., 197–198, 210, 220, 223, 226–227, 457, 471, 474, 476, 478 et seq., 486,
232, 245, 257–258, 263, 276, 286–287, 505, 511, 518, 540, 547
291 et seq., 298, 303, 307, 309, 317, Conditions, 333, 362, 505
327–328, 330 et seq., 339–340, 342 et Illegal, 5, 159–160, 162, 172 et seq., 547
seq., 348, 357–358, 362, 369, 371, 381 Pre-trial, 471, 482
et seq., 409, 536 et seq. Disclosure, 20, 59, 507
606 Index
Documention Center of Cambodia (DC-Cam), Article 46new, 22

15, 100, 106, 121, 130, 133, 156, 265, Article 47, 23
288, 323–324, 351, 435, 478, 550 Effective control, 186–187, 192
Donors of the ECCC, 32, 36 et seq., 40–41, See also command responsibility
45, 114, 119, 142, 150, 152, 154 Elements of crimes, 169, 267, 269, 278, 319,
Due process, 24, 52, 394 337, 340, 516, 533
Duress, 300, 427, 494 Establishment of the Extraordinary
Chambers, ECCC, 3, 13, 20, 37, 52,
112, 126, 194, 209, 213, 249, 259,
E 265, 289, 340, 354, 377, 455, 462,
East Timor, 16, 41, 205, 469, 533 520–521, 536, 539
See also Special Panels for Serious Crimes UN Group of Experts, 16, 18–19, 27, 105,
(SPSC) 265, 273, 363, 365, 373, 377
ECCC Agreement, 25, 31, 33, 38–39, Negotiations to create, 2–3, 13–14, 17, 20,
46–47, 52–53, 126, 137, 164–165, 167, 23, 34, 36, 40–41, 70, 104 et seq., 126,
170–171, 258 et seq., 267, 394–395, 231, 265, 268, 340, 393
399, 496 Evidence, 6, 8, 15–16, 18, 29, 48, 50, 56, 58,
Article 1, 167 60–61, 63, 65, 67, 69, 70, 706, 116,
Article 4, 479 131, 160, 168, 176–177, 192, 198,
Article 9, 261, 267 203, 216, 221, 223–224, 228, 233,
Article 11, 25, 95, 97 236 et seq., 242 et seq., 253, 263, 272,
Article 12, 31, 111, 164, 259, 267, 278, 284, 247, 304, 323, 325 et seq.,
394–395, 441, 496, 539 333 et seq., 340, 346, 348, 361, 381,
Article 13, 96, 470 392, 396, 398 et seq., 403 et seq., 413
Article 26, 137 et seq., 420, 422 et seq., 430, 432,
Article 28, 25 435–436, 439, 443, 445 et seq., 452
ECCC Law, 3–4, 20 et seq., 31, 33, 38–39, 53, et seq., 457 et seq., 464, 470–471,
87, 95 et seq., 99, 111, 160, 164–165, 477–478, 480, 484–485, 491 et seq.,
167, 171–172, 178, 193–194, 213, 258 503 et seq., 506 et seq., 516, 520, 533,
et seq., 267, 270, 277, 336, 353 et seq., 539, 541, 543
358–359, 362, 371, 377, 379 et seq., Admissibility, 491, 494, 508, 510, 513
394, 399, 464, 469–470, 478, 492, Documentary, 15, 453–454, 516
496–497 Exculpatory
Article 1, 21, 167, 258 See below Exculpatory Evidence
Article 2new, 496, 536 Expert report, 136, 473
Article 3, 210, 377, 379, 380–381 Expert witness, 325, 463
Article 4, 259 et seq., 267 Hearsay, 498
Article 5, 193, 263, 336, 358, 362 Internal Rules See below Internal rules
Article 6, 353 et seq., 362, 371, 383 Presentation of, 392
Article 10new, 52–53 Reliability, 494–495, 497 et seq., 506
Article 14new, 23, 178, 464 Testimony, 16, 63, 68, 238, 331, 396, 407,
Article 16, 160 419 et seq., 439, 446 et seq., 463, 465,
Article 20new, 111, 469 468, 477, 533, 550, 63, 68, 238, 331,
Article 23new, 160, 171, 486 396, 407, 419 et seq., 439, 446 et seq.,
Article 29, 22, 209–210, 264, 277, 497 463, 465, 468, 477, 533, 550
Article 30, 24 Ex parte, 57 et seq., 364
Article 33new, 24, 96, 111, 259, 470, 520 Exculpatory Evidence, 8, 403
Article 35new, 33, 87, 464, 469–470 Extraordinary African Chambers, 9, 42
Article 36new, 31 Expeditious trial, 7–8, 409, 415, 423, 435,
Article 39, 24, 172 437, 439, 444, 541 et seq.
Article 40new, 23, 95, 97 Expert witness, 325, 463
Article 44new, 24 Expert report, 136, 473
Index 607
F Hearsay, 498
Facts, 28, 30, 80, 96–97, 110, 112, 114, 117, Hor Namhong, 30, 68
138, 159 et seq., 163, 165, 169, 172, Hors de combat, 193, 353
187, 191 et seq., 199, 216–217, 221, Hostages, hostage-taking, 18, 295, 355
226, 234–235, 256, 278, 281, 284 Hostilities, 71, 285, 362–363, 372
et seq., 327, 331, 340, 343 et seq., Human rights, 14–15, 18, 40 et seq., 48, 51,
353, 359, 361–362, 378 et seq., 384, 74, 77, 84 et seq., 88, 95–96, 98, 100
404–405, 407–408, 414, 417, 419, 422, et seq., 103 et seq., 108 et seq., 119,
425, 427 et seq., 431, 438, 441, 447 et 121, 131, 134, 136, 142, 145, 148, 150,
seq., 452, 454–455, 470, 540 156, 173, 175, 177, 256, 273, 289, 298,
Adjudicated, 454–455 302, 314, 341, 357, 368–369, 371, 373,
Judicial notice, 241, 454–455 375, 381, 395, 397, 433, 467, 472, 481,
Fair trial, 1, 8, 35, 77, 80–81, 85, 88, 91, 97, 488–489, 492, 496, 500, 504–505, 508,
101, 109, 118, 120, 130, 133, 161, 217, 511, 513–514, 534, 545, 547, 549–550
375 et seq., 381, 384–385, 403–404, Human Rights Committee (HRC), 40, 48, 51
432, 435, 442, 448, 450, 452, 456, 458, Human Rights Watch, 86, 88, 98
461, 464, 466, 470–471, 478 et seq., Hun Sen, 17 et seq., 30, 40, 48, 49, 65–66, 78,
500, 504, 509, 511–512 97, 142, 146, 404
See Accused, rights of Hybrid courts, hybrid tribunals, 5, 9, 41, 72,
Fitness to stand trial, 8, 87, 409–411, 461 et 124, 136–137, 156, 289, 389, 433, 516
seq., 469 et seq., 484 et seq.
Funding, 14, 32–33, 35 et seq., 39, 41, 71–72,
111, 118, 123, 128–129, 133 et seq., I
142, 145, 148–149, 152 et seq., 183, Ieng Sary, 3–4, 16, 19, 26–27, 29, 34, 54, 56
545, 549 et seq., 59, 61–62, 64, 67, 77 et seq., 81
et seq.,, 97 et seq.,, 127, 144, 164, 173,
175, 183, 194, 209, 211–212, 219, 221,
G 257, 260 et seq., 270, 276–277, 342,
Geneva Convention of 1949, 3, 7, 22, 26–27, 344, 363, 378 et seq., 382 et seq., 403
29, 79, 98, 116, 160–161, 193, 227, et seq., 455, 457, 462–463, 466 et seq.,
297–298, 306, 316, 354 et seq., 358 et 475, 482, 486–487, 499–500, 537
seq., 370 et seq., 381 et seq., 409 Ieng Thirith, 3, 8, 26, 34, 54, 57, 61–62, 127,
Grave breaches, 3, 7, 22, 26–27, 29, 79, 98, 164, 169, 177, 183, 194, 209, 211, 257,
116, 160–161, 227, 353 et seq., 409 332, 342, 363, 383, 403, 405, 409–410,
Genocide, 1, 3, 6, 13 et seq., 21, 25 et seq., 41, 440, 461 et seq., 467–468, 470 et seq.,
50, 74–75, 77 et seq., 82 et seq., 89 et 474 et seq., 481 et seq., 468, 488,
seq., 96, 98, 100–101, 110, 116–117, 493–494, 537
120, 156, 210, 215, 245, 247, 254 et Illness during trial, See health
seq., 287–288, 298, 302, 314, 316–317, Immunity, 98
323–324, 330, 349–350, 371, 381 et Impartiality, 2, 4, 20, 49, 52 et seq., 58, 60,
seq., 409, 413–414, 443, 497, 536 62–63, 67, 70–71, 73, 80, 82, 94,
Political group(s), 196–197, 255, 268, 289 175, 258, 400–401, 403 et seq., 430,
Greatest responsibility 457–458, 478, 502, 518, 526, 529, 548
See most responsible Imprisonment, 23, 26, 29, 71, 82, 85, 93, 109,
Guilty plea, 361, 427, 431 116, 127, 160 et seq., 169–170, 172 et
seq., 182, 227, 258, 292, 309, 327, 329,
331, 333, 348, 358, 482, 537–538
H Incapacity, 474
Habré, Hissène, 9, 98 Indictment, 23, 26, 77, 82–83, 86, 96, 186,
Health, 8, 34–35, 38, 91, 103, 110, 116, 161, 217, 219, 231, 242–243, 245–246,
182, 199, 222, 287, 350, 355, 357–358, 257, 284, 341–342, 345, 378, 382, 408,
367–368, 408, 410–411, 423, 425, 428– 412–413, 416–417, 422, 427, 429, 435
429, 436, 440–441, 445–446, 462, 466, et seq., 474, 543
470, 475, 480–481, 483 et seq., 503 See also Closing Order
608 Index
Indigent, 177 Interpreters, 39, 151

Individual criminal responsibility, 22, 92, 170, Introductory Submissions, 26, 29, 160, 271, 282,
181, 315 286, 326, 347, 385, 399, 403, 425, 427
In dubio pro reo, 8, 461, 479 Investigation, 4, 23, 25–26, 28 et seq., 48–49,
Intime conviction, 398, 401 51–52, 57–58, 64 et seq., 73, 83, 90,
Initial appearance, 87, 471 97, 105, 117, 120, 128, 155, 160, 164,
Initial Hearing, 16, 383, 400, 408, 418, 428, 172, 206, 239, 257, 260, 271, 282, 286,
466 321–322, 325–326, 334–335, 346et
Innocence, presumption of, 65–66, 90, 458, seq., 378 et seq., 284, 289, 393, 396,
479, 510 399–400, 402 et seq., 408, 410, 421,
Interests of justice, 101, 408, 435, 438, 441, 424 et seq., 429 et seq., 499, 501, 549
466, 469, 478, 480, 483, 489, 526 conduct of, 52
Interlocutory appeals, 80, 89, 174, 215, 247,
365, 382, 453, 455, 464
Internal Rules (IR), 32–33, 39, 53, 65, 111 et J
seq., 126, 165, 171, 175, 177, 270, 282, Joinder, 426, 452–453
285 et seq., 394–395, 421, 432–433, Joint Criminal Enterprise (JCE), 5–6, 160 et
440–441, 452, 455, 457, 469, 517, 535, seq., 170, 184, 188 et seq., 203 et seq.,
537 et seq., 544 251, 277, 330–331, 436, 450, 453, 494
International Court of Justice (ICJ), 98, 151, Judges
249, 273, 279, 356 appointment of, 48, 52
International Criminal Court (ICC), 107, 175, international, 4, 8, 22, 24, 31, 36, 39, 41,
177, 183, 249, 267, 315, 337, 350, 359, 49, 52, 69–70, 73, 79, 80, 99, 150, 178,
435, 512, 516, 531, 532 201, 378 et seq., 479
Rome Statute, 41, 150, 167, 179, 194, 319, disqualification, 45, 53 et seq., 57 et seq.,
383, 432, 513, 515–516, 520, 533 405, 437, 450, 457–458, 519
International Criminal Tribunal for Rwanda national, 23, 42, 47, 49, 148, 489
(ICTR), 7, 26, 31, 35–36, 87, 95–96, reserve, 51
107, 109, 125, 132, 167, 189, 192 et Judgment(s), 3, 5, 8, 26, 28–29, 32, 43, 46, 55,
seq., 196, 204, 207–208, 210, 215, 252, 71, 78 et seq., 83 et seq., 86, 92 et seq.,
269 et seq., 273–274, 276, 278 et seq., 97 et seq., 106, 108–109, 113–114,
283, 293, 337, 339, 343, 349, 403, 406, 116, 124, 127, 131, 143, 145, 151, 159
418, 426, 464, 469, 516 et seq., 181 et seq., 204 et seq., 225 et
International Criminal Tribunal for the Former seq., 235, 237 et seq., 241, 246 et seq.,
Yugoslavia (ICTY), 7, 26, 31, 35–36, 258, 285, 288, 294, 319, 327, 329–330,
47, 54, 87–88, 95–96, 98, 107, 125, 335 et seq., 343, 348, 353–354, 359,
132, 137–138, 166 et seq., 188 et seq., 371, 378–379, 384, 391, 398, 412 et
192 et seq., 204 et seq., 209, 212, seq., 427, 429, 435 et seq., 445 et seq.,
215–216, 219, 221 et seq., 225, 227 et 451, 453, 455–456, 458, 473, 483, 485,
seq., 239, 249, 252–253, 269 et seq., 487, 495, 504, 506, 510, 512, 536, 538
274 et seq., 279 et seq., 283, 285, 291 Judicial Administration Committee (JAC), 54
et seq., 319, 337 et seq., 343, 345, Judicial economy, 439
348–349, 354 et seq., 361–362, 364 et Judicial notice, 241, 454–455
seq., 368–369, 396, 403, 406, 418 et Jurisdiction, 2, 3, 5–6, 8, 13, 21, 24, 26, 28 et
seq., 426–427, 439, 444, 447, 452–453, seq., 43, 65, 83–84, 87, 89, 94 et seq.,
457, 469–470, 474, 516 98–99, 117, 150, 159 et seq., 166 et
International Law Commission (ILC), 168, seq., 170 et seq., 194–195, 201, 205,
248, 297, 507, 511 207–208, 210–211, 213, 218–219, 239–
International Military Tribunal (IMT), 240, 250, 253–254, 258–259, 261, 263,
Nuremberg, 5, 81, 87, 181, 183, 213 et 265–266, 269, 277, 292, 294–295, 303,
seq., 226, 229 et seq., 247–248, 250, 305–306, 315, 339, 354, 357, 359–360,
293, 297–298, 319, 341, 472–473, 489 365, 370, 375 et seq., 381 et seq., 392,
International Military Tribunal for the Far East 424–425, 432, 440, 463, 470, 482–483,
(IMTFE), Tokyo, 214, 298, 473, 489 518, 521, 530, 536, 538, 540, 546
Index 609
rationae materiae, 83, 210, 371 M

rationae personae, 5, 24, 30, 43, 117, 159 Meas Muth, 4, 30, 117, 127, 146, 332
et seq., 170 et seq., 179 Mens rea, 102, 195–196, 220, 224–225, 227,
rationae temporis, 8, 167, 169, 171, 261, 229, 234, 272, 276–277, 279, 328,
269, 292, 339, 359, 371 336–337, 343
Jus cogens, 259, 261, 511 Mitigating circumstances, 160, 162, 173, 547
Modes of liability, modes of responsibility, 80,
92, 183–184, 186, 188, 203, 209–210,
K 213, 217, 223, 253, 264, 269, 278, 494,
Kaing Guek Eav, 3, 5, 7–8, 20, 26, 106, 124, 497
127, 159 et seq., 168–169, 171 et seq., Monk(s), 16, 84, 280, 282, 329
176, 225, 253, 257, 335, 354, 372, 378, Most responsible, 1, 5, 21, 30, 34, 43, 45,
537–538, 547 48, 103, 105, 117, 119, 126, 159, 161,
Karnavas, Michael, 144, 212–213, 253, 391, 422 171–172, 213, 462, 472, 536
King Norodom Sihanouk, 104, 184 Murder(s), 3, 26, 66, 84, 127, 161, 170, 182,
Killing(s), 7, 18, 74, 79, 91, 101, 156, 161, 185 et seq., 189, 195 et seq., 206, 219,
196, 223, 227, 233, 238, 243–244, 262, 222–223, 225, 227, 233 et seq., 245,
273, 284, 302, 309, 311, 330–331, 347, 308, 324, 333, 346, 357, 362, 378, 409,
353, 355, 357, 362, 367, 543 471, 536
Khieu Kanharith, 30
Khieu Samphan, 3, 5, 19, 26, 29, 34, 55 et
seq., 69, 93, 106, 109, 116, 124, 127, N
164, 175, 182, 186–187, 189, 191–192, National Assembly (Cambodia), 20, 25, 37,
197, 199 et seq., 211, 221, 223–224, 126, 265, 377, 380
257–258, 292, 342, 371, 403, 408, 410, National law (Cambodia), 95, 195, 211, 239,
416, 448, 451, 458, 426–463, 468, 483, 249, 251, 363
487, 495, 512, 537 Cambodian Law, 21, 46, 94, 97, 126, 149,
Khmer Rouge 164–165, 169, 172, 175–176, 188,
atrocities, 1, 3, 4, 6, 8, 14 et seq., 27, 30, 209, 211–212, 216–217, 257, 267,
32, 45–46, 48, 71, 73, 78, 83–84, 89 340, 377, 381, 385, 441, 493, 496,
et seq., 92, 99, 103 et seq., 107 et seq., 521, 536, 539
116, 120, 134–135, 141, 146, 160, 182 Domestic Law, 1, 105, 192, 210, 250, 260,
et seq., 196, 221–222, 226, 255 et seq., 360, 376, 395, 507, 541
260 et seq., 266 et seq., 270 et seq., National United Front of Kampuchea (FUNK),
278, 281, 287, 292, 297, 321, 324–325, 83
327, 331, 333 et seq., 346, 348 et seq., Ne bis in idem, 4, 29, 77 et seq., 85, 94 et seq.,
354, 359, 362, 371, 376–377, 379, 414, 99–100, 382
417, 426, 436, 472, 492, 511–512, 532, Necessity, 198, 288, 298, 308, 355, 368, 441,
547 481, 483, 491, 511–512
ideology, 39, 88, 97, 104, 201, 278, 280, Nil Nonn, 54–55, 64 et seq., 182, 405, 437,
283 et seq., 323 et seq., 333, 342–343, 442, 446–447, 450–451, 457
347, 409, 425, 443 Non-judicial measures See reparations
Klonowiecka-Milart, Agnieszka, 80 Nulla poena sine culpa, 183
Koppe, Victor, 182 Nullum crimen sine lege, 6, 92, 159, 183, 209,
Kranh, Tony, 130, 147 211–212, 216, 255, 259–260, 262, 265,
267, 269 et seq., 291, 340, 353
Nuon Chea, 3, 5, 14, 19, 26, 34, 54–55, 57 et
L seq., 62, 65–66, 69–70, 93, 106, 116,
Legacy, 2 et seq., 43, 45, 48, 73–74, 103, 124, 127, 164, 182, 186–187, 189,
119–120, 123 et seq., 183, 289, 32, 191–192, 197, 199 et seq., 209, 212,
323, 325, 347, 349–350, 389, 391, 393, 223–224, 257, 258, 260, 292, 342, 271,
428, 431, 443–444, 461, 513, 521, 533, 378, 403, 408, 410, 413, 449, 450–451,
548–549 457–458, 462–463, 466, 468, 476, 483
Lon Nol, 84, 184, 186, 329 et seq., 495, 506, 510, 512, 537
610 Index
Nuremberg, 3, 5–6, 81, 87, 92, 143, 168, 181, Primacy, 395
183, 190 et seq., 199, 201, 203–204, Proceedings, stay of, 67, 412, 437, 440, 482
207, 209, 213 et seq., 226, 229 et seq., Prosecutor, See Co-Prosecutor(s)
235, 239 et seq., 245 et seq., 251 et Provisional detention, 25, 47, 63, 79, 80, 82,
seq., 289 et seq., 291 et seq., 360, 367, 96, 457, 516, 546
424, 472, 516, 533 Public Affairs Section (PAS), ECCC, 35, 134
Public hearing(s), 54 et seq., 58, 61–62, 64,
66, 425, 477
O
Office of Administration, ECCC, 24, 32, 119,
128, 131–132, 456, 465 R
Open Society Justice Initiative (OSJI), 32, 40, Rape, 7, 27, 161, 164–165, 168–169, 228–229,
47, 48–49, 51–52, 72, 105, 117, 128, 263, 321 et seq., 334 et seq., 342 et
149, 289, 361, 536 seq., 347 et seq., 368, 372, 414
Orders, 92, 96, 187, 236, 238–239, 252, 257, Reasonable doubt, 228, 398, 401, 546
267, 427 Reparations, 9, 32 et seq., 103–104, 112 et
Outreach, 32–33, 41, 43, 105, 111, 114, 124, seq., 120–121, 130, 159–160, 162, 164,
130, 133–134, 138, 145, 154–155, 428, 167, 175 et seq., 181–182, 184, 199 et
516, 534–535, 545, 549 seq., 419, 438, 512, 518–519, 533, 539,
541, 548
Non-judicial measures, 13–14, 32, 34, 111,
P 113, 135, 543
Pardon, 13, 19, 23, 25, 29, 77 et seq., 97 et Rights of suspects See rights of accused
seq., 382 Reconciliation, 2, 16 et seq., 30, 48, 73, 99,
Paris Peace Agreement (1991), 2, 17, 104 103–104, 109, 112, 114–115, 120–121,
People’s Republic of Kampuchea, 15, 17, 89 130, 136, 143, 146, 350, 392, 443, 521,
People’s Revolutionary Tribunal, 16, 77 et 530–531, 545 et seq.
seq., 265 Religious persecution, 3, 21, 329, 377–378,
Perpetrator(s), 2, 3, 22, 35, 49, 74, 98, 414, 536
108–109, 112, 115, 136, 187, 189, 191, Revolutionary Army of Kampuchea (RAK),
193, 197, 212, 229, 240, 242, 253, 263, 414
269, 271 et seq., 275 et seq., 280 et Rules of Procedure and Evidence, 83, 204,
seq., 294, 328, 332, 336–337, 341 et 394, 493, 516, 533, 539, 541, 543
seq., 357, 379, 382, 384, 496, 521, 529, See also Internal Rules
535, 546–547, 550
Persecution, 3, 21, 26, 81, 84, 93, 127,, 161,
165, 167 et seq., 181–182, 185 et seq., S
189, 195 et seq., 219, 222–223, 225, S-21, 3, 15, 20, 26, 29, 33, 44, 113, 127,
227, 246, 263, 266, 268, 282–283, 159–160, 165, 199, 226 et seq., 333,
285–286, 297, 308, 315 et seq., 329, 335–336, 338–339, 342, 346, 354,
333, 338, 346, 349, 377–378, 409, 414, 357 et seq., 362, 364, 367–368, 370,
536, 552 380, 382, 405, 407, 409 et seq., 416,
Personal jurisdiction, 5, 24, 30, 43, 117, 159 et 427–428, 443, 494, 506, 510
seq., 170 et seq., 179 See Tuol Sleng
Pestman, Michel, 60 Scheffer, David, 143, 153
Plenary of Judges, 519 Senior Leaders, 1, 5, 19 et seq., 30, 34, 43, 49,
Plunder, 308 105, 116–117, 119, 125, 171, 182, 255,
Pol Pot, 2, 16–17, 19, 34, 44, 64, 66, 77 et 378, 462, 536
seq., 81 et seq., 88 et seq., 100 et seq., See also most responsible
127, 221, 224, 265, 289, 324, 354 Sentencing, 5,, 26, 29, 87, 95, 159, 161, 164,
Political interference, 4, 45 et seq., 103 et 167, 169, 172, 174, 178, 187, 288, 401,
seq., 117, 120, 143 et seq., 155, 391, 405 et seq., 427, 519, 538, 541, 547
404–405, 536 Severance, 8, 28–29, 93, 116, 177, 182,
Practice Direction, 544 257–258, 287, 326, 330–331, 346, 384,
Index 611
408–409, 411 et seq., 426–427, 429, seq., 309, 319, 330, 346, 355, 391, 399,
432, 435 et seq., 445 et seq., 458–459, 409, 443, 447, 473, 543
478, 543 See also forced transfer
Sexual offences, 134, 246–247, 263, 321 et Translators, 39, 145, 151
seq., 347 et seq., 503 Trial Chamber, 5, 8, 22, 25 et seq., 35, 54 et
Sok, An, 20, 25, 119, 144, 146, 150–151 seq., 65 et seq., 69 et seq., 80, 106, 109,
Sovereignty, 17, 295, 333 114, 116, 127, 159 et seq., 165 et seq.,
Special Court for Sierra Leone (SCSL), 5, 41, 172 et seq., 177, 181 et seq., 200 et
47, 72, 125, 131, 136–137, 156, 310, seq., 205, 217 et seq., 222 et seq., 225
327, 329, 331–332, 337, 339, 348, 474 et seq., 234, 241, 247, 249, 252, 258,
Special Panels for Serious Crimes (SPSC), 269–270, 282, 285, 287–288, 291 et
205, 470 seq., 319, 330 et seq., 336 et seq., 344
East Timor, 41, 205, 469, 533 et seq., 361, 378 et seq., 384, 391, 396,
Special Tribunal for Lebanon (STL), 87, 175, 398, 400–401, 404–405, 407, 408 et
205, 211, 254 seq., 423 et seq., 431, 435 et seq., 450
Statute of limitations, 7, 27, 375 et seq. et seq., 458–459, 461, 467 et seq., 470,
Subject matter jurisdiction, 83, 376, 536 474 et seq., 480 et seq., 499, 512, 522
Superior responsibility, 181, 187, 191 et seq., et seq., 537 et seq., 547
277–278, 330, 494 Trial Management Meeting, 414, 446, 454, 495
Supermajority, 23, 390, 479 Truth and Reconciliation Commission, 18–19,
Supplementary submissions, 286, 326–327, 99, 112, 115
333–334, 346–347, 393, 417, 482 Tuol Po Chrey, 28, 114, 183, 185 et seq., 192,
Supreme Council of Magistracy (SCM), 196–197, 199, 200, 223–224, 291–292,
22–23, 39, 51–52 409, 412, 443–444
Supreme Court Chamber, 7, 22–23, 25–26, Tuol Sleng, Tuol Sleng prison, S-21, 3, 15,
29, 33, 53, 58, 61–62, 66–67, 80, 93, 20, 26, 29, 33, 113, 127, 134, 159, 165,
109, 113, 116, 127, 159 et seq., 189, 199, 226 et seq., 333, 335 et seq., 342,
199, 212, 225, 269, 271, 287, 331, 346, 354, 357–358, 362, 364, 367–368,
339 et seq., 344, 347, 395, 410 et seq., 370, 380, 382, 405, 410 et seq.,
414 et seq., 427–428, 433, 437 et seq., 427–428, 494, 510 et seq.
448–449, 456, 461, 469–470, 479 et
seq., 488–489, 495, 537–538, 547
Suspects, 4, 18, 26–27, 29–30, 48, 50, 117– U
118, 172, 259, 271, 334, 383, 425, 536 United Nations, 2, 9, 13 et seq., 17–18, 20,
See right of suspects 22, 24–25, 31, 35–36, 41 et seq., 46 et
seq., 51, 65, 73, 83–84, 93, 103 et seq.,
119, 126, 139, 141, 148, 150–151, 241,
T 259, 265, 267, 273, 340, 345, 357, 395,
Ta Mok, 19–20, 34 441, 536
Temporal jurisdiction, 8, 167, 169, 171, 201, Assistance Mission to the Khmer Rouge
269, 277, 292, 339, 359–360 Trials (UNAKRT), 126, 130, 395
Tokyo, 168, 183, 194, 198, 249, 298, 360, 473, General Assembly (UNGA), 15–16, 18,
489 20–21, 37, 44, 83, 93, 128, 248, 257,
Torture, 2–3, 7 et seq., 14–15, 21, 26, 84–85, 261, 265 et seq., 357, 363, 368, 377,
98, 161, 164–165, 168 et seq., 226 et 480, 521
seq., 243–244, 308, 323, 326, 329, 331, Group of Experts, 16, 18–19, 27, 105, 265,
335–336, 338 et seq., 344, 346, 348, 273, 363, 365, 373, 377
353, 355, 357–358, 361–362, 366, 368 Office of Legal Affairs (OLA), 4, 20,
et seq., 377–378, 491 et seq., 536 142–143
See crimes against humanity Secretary-General (UNSG), 4, 16, 18, 22,
Transfer, 2, 5–6, 17, 87, 127, 144, 146, 148, 30, 35 et seq., 49, 105, 119, 125, 128,
151–152, 184 et seq., 189, 197–198, 143 et seq., 153, 273, 340, 345, 377,
219, 222 et seq., 262–263, 286, 291 et 496, 521
612 Index
Security Council (UN SC), 41, 47, 83, See also reparations
210–211, 345 Representation, 31, 33, 132, 522 et seq.,
Transitional Authority in Cambodia 525 et seq., 539, 541 et seq., 548
(UNTAC), 44, 104, 148 Victims participation, 9, 30 et seq., 41 et
United Nations War Crimes Commission seq., 103, 109 et seq., 123, 515, 517 et
(UNWCC), 233, 237, 240–241, 254, seq., 525 et seq., 535, 538 et seq., 544
294, 303, 307, 317, 340, 351 et seq.
Victims Unit (VU), 32–33, 107, 111,
113–114, 539, 544 et seq.
V Vietnam, 2, 15, 17, 82–83, 256, 285, 353–354,
Victims, 3, 6 et seq., 27, 30 et seq., 35, 43, 356, 362 et seq., 462
45–46, 73, 103, 109 et seq., 120–121, Vietnamese, 2, 4, 6, 15, 17, 27–28, 39,
130, 135, 139, 141, 162, 170, 173, 176, 65–66, 78–79, 81 et seq., 94, 104, 201,
185, 193, 197, 199, 234, 236, 238, 255, 256–257, 284 et seq., 287, 333, 356 et
257–258, 268–269, 272–273, 276, 279, seq., 362 et seq., 370, 382, 414
281, 287, 300–301, 302 et seq., 318, Voluntary contributions, 36, 72
324, 327, 330 et seq., 342, 347–348,
354, 363, 367, 396, 409, 426, 435, 437,
444, 447, 458–459, 465, 478, 483, W
508–509, 515 et seq., 531 et seq., 535 et War crimes, 61, 116, 159, 194, 197–198, 226,
seq., 546 et seq. 232 et seq., 239 et seq., 251, 257, 291,
Civil party, 27–28, 30 et seq., 35, 42–43, 293 et seq., 299, 303, 332, 339 et seq.,
103, 107 et seq., 112 et seq., 116, 120, 344, 353, 359 et seq., 383–384, 536
123, 162–163, 176 et seq., 184, 199 et Witnesses, 16, 18, 31, 35–36, 43, 48, 56,
seq., 268, 270, 273, 281 et seq., 288, 65–66, 68, 73, 84, 89, 107, 110, 116,
322, 324 et seq., 334, 343, 345, 348 et 119, 136, 139, 200–201, 324–325, 331,
seq., 390 et seq., 396, 407, 417 et seq., 334, 336, 389–390, 392–393, 396, 400
421–422, 437, 442, 447–448, 459, 464, et seq., 407, 416 et seq., 437 et seq.,
478, 512, 515 et seq., 523 et seq., 535 et 446–447, 449–450, 453, 456, 464, 473,
seq., 538 et seq. 516, 519–520, 523, 541, 544
Civil Party Lead-Co Council (CO-LCL), Cross-examination of, 422, 453
34, 114, 448, 477, 519, 523 et seq., 541 Expert witnesses, 27–28, 105, 210, 273,
et seq. 282, 325, 363, 365, 396, 407, 417 et
Compensation to victims, 162, 165, 172 et seq., 437, 447, 464, 470, 472 et seq.,
seq., 300, 548 478, 481 et seq., 490, 493, 541

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International Criminal Justice Series Volume 6

More information about this series at http://www.springer.com/series/13470

The Extraordinary Chambers

ISSN 2352-6718 ISSN 2352-6726 (electronic)

Library of Congress Control Number: 2015960225

Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl

© t.m.c. asser press and the authors 2016

Printed on acid-free paper

This Springer imprint is published by SpringerNature

Assessing their Contribution to International Criminal Law

The Extraordinary Chambers in the Courts of Cambodia (ECCC) were estab-

Professor Wolfgang Schomburg

For almost a decade, the Extraordinary Chambers of the Courts of Cambodia

The Hague, Autumn 2015 Chang-ho Chung

1 Introduction: An Extraordinary Court. . . . . . . . . . . . . . . . . . . . . . . . . 1

Part I Assessing the History, Establishment, Judicial Independence

Part II Assessing the Contributions to Substantive International

9 The Theory of Joint Criminal Enterprise at the ECCC:

Part III Assessing the Contributions to International

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585

Simon M. Meisenberg Attorney-at-Law in Germany and formerly a Legal Advi-

Jeudy Oeung Human Rights Programme Officer at the Embassy of Sweden in

Mélanie Vianney-Liaud Legal Consultant on the Legal Representative of the

CAT Convention against Torture (1984)

PTC Pre-Trial Chamber, ECCC

Simon M. Meisenberg and Ignaz Stegmiller

Keywords International criminal law and procedure · Genocide · Crimes

Simon M. Meisenberg is Attorney-at-Law (Germany); Ignaz Stegmiller is Coordinator for the

© t.m.c. asser press and the authors 2016 1

The result of the negotiations was an internationalized court structure, placing

Part II of this book focuses on the ECCC’s contributions to substantive interna-

In Part III the ECCC’s contributions to international criminal procedure are

The ECCC Trial Chamber in Case 002 attempted an economical approach to

thousands of victims participate in the proceedings? Clearly innovative solutions

1ReportHybrid Perspectives on Legacies of the Extraordinary Chambers in the Courts of Cambodia

The author is an Adviser to the Royal Government of Cambodia.

© t.m.c. asser press and the authors 2016 13

1Kiernan 1996; Closing Order, Nuon Chea and others (002/19–09–2007/ECCC-D427),

2.2.1 The Long Process of Seeking Justice

3Chandler 2000; Panh 2003.

www.d.dccam.org/Projects/Maps/Mapping.htm (visited 15 June 2015). From 1995 to 2004 Yale

6Amer 1989, especially at 24–39.

1991, 31 International Legal Materials 183.

2.2.2 United Nations Acknowledgment

2.2.3 The End of the Khmer Rouge

15Report of the Group of Experts, supra note 13.

2.2.4 The Law and Agreement on Establishment

17Fawthrop and Jarvis 2004, at 155–188.

royal-government-cambodia-concerning-prosecution (visited 15 June 2015).

2.3 Key Features of the Extraordinary Chambers

• crimes against humanity

2.3.4 Penalties, Amnesties and Pardons

24Article 14 new ECCC Law.

2.3.6 Administration and Expenses

2.3.7 The Agreement Between the Royal Government

28Article 30 ECCC Law.

The ECCC is generally referred to as a ‘mixed’ or ‘hybrid’ court. In introducing

30Article11 ECCC Agreement.

Chamber, 15 June 2009, § 10.

3 February 2012 (hereafter Duch Appeal Judgment), § 393.

2.4.1 Qualification of Crimes Prosecuted

The Introductory Submission filed by the Co-Prosecutors on 18 July 2007 opened

statement of the Co-Prosecutors, 18 July 2007.

Part I Assessing the History, Establishment, Judicial Independence

Part II Assessing the Contributions to Substantive International

2.2.1 The Long Process of Seeking Justice

2.2.2 United Nations Acknowledgment

2.2.3 The End of the Khmer Rouge

2.2.4 The Law and Agreement on Establishment

2.3 Key Features of the Extraordinary Chambers

2.3.4 Penalties, Amnesties and Pardons

2.3.6 Administration and Expenses

2.3.7 The Agreement Between the Royal Government

2.4.1 Qualification of Crimes Prosecuted

2.4.4 Scope of the Trials

2.4.5 Legal and Administrative Framework for Victim

2.5.1 The Ticking of the Clock

2.5.3 The Tower of Babel

2.5.4 The Crusade Against the ECCC by Human Rights

3.4 Allegations of Judicial Bias at the ECCC............................................................................ 52

3.2 Structural Deficiencies and Political Interference

3.3 Judicial Resignation in Response to Political

3.3.1 The Resignation of Judge Blunk

3.3.2 The Resignation of Judge Kasper-Ansermet

3.4 Allegations of Judicial Bias at the ECCC

3.4.1 The Applicable Standard for Judicial Disqualification

3.4.2 ECCC Case Law on Allegations of Bias

3.4.2.1 Applications to Disqualify the Trial Chamber

3.4.2.2 Applications to Disqualify Judge Marcel Lemonde

3.4.2.3 Applications to Disqualify Judge Silvia Cartwright