Thursday, October 23, 2008

On Legality & Delay of Justice in the ECCC

(2d of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series. Part 1 is here.)

Yesterday, I detailed the circumstances leading to Co-Prosecutors to appeal the Indictment of Khmer Rouge suspect Kaing Guek Eav, known as "Duch," on the ground that the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia erred when, on August 21, 2008, they limited indictment to:
► war crimes (grave breaches of the 1949 Geneva Conventions); and
► crimes against humanity under principles of direct and accomplice liability.
In my view, the Prosecutors are smart to have filed this appeal, which contends that Duch should also have been charged with:
► the domestic crimes of murder and torture; and
► the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE.
One of the most difficult aspects of adjudicating the legal liability of surviving members of the Khmer Rouge will be to identify the state of the law in 1975-1979 in keeping with the principle of legality. That is because many developments in international criminal law that are most relevant to the atrocities of the Khmer Rouge era post-date that era, as they are the result of the work of the two ad hoc tribunals in the late 1990s. These developments include:
► the almost complete convergence of the law on war crimes relevant to internal and international armed conflicts;
► the official abandonment of the war nexus for crimes against humanity; and
► the adoption of the subjective approach to protected group identity and membership for genocide.
A particular point of controversy will undoubtedly be whether a state of armed conflict existed in Cambodia during the Khmer Rouge era. Certainly, a low-level conflict existed between the Khmer Rouge central government and a resistance movement made up of members of the prior regime and others; however, many of the violations of international criminal law most associated with the Khmer Rouge were more in the nature of organized repression against actual or perceived dissidents, in the absence of any credible armed resistance. Many other violations may have had no nexus to whatever armed conflict did exist.
Eventually, Vietnam began to intervene in the Eastern zones of Cambodia, and then later launched a full-scale invasion that ousted the Khmer Rouge completely (photo upper left, credit). The moments when this conflict began to trigger the application of humanitarian law, and when the conflict officially became an international armed conflict, remain questions for litigation.
The existence of a state of armed conflict is relevant not only for any war crimes counts, but perhaps also for any crimes against humanity that might be charged. When crimes against humanity first emerged as an international law offense after World War II, the crime remained intimately tied to a state of war. Specifically, the postwar Nuremberg and Tokyo tribunals required the prosecution to demonstrate a “nexus” between the charged crime against humanity and the war of aggression launched by Nazi Germany or Imperialist Japan, because the Charters of those tribunals defined crimes against humanity as
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Tribunal interpreted the passage that I've italicized to preclude the prosecution of events preceding the commencement of World War II, which it pegged to Germany’s invasion of Poland in 1939. This rendered crimes against humanity a sort of byproduct of war rather than an autonomous offense.
The war nexus served two important purposes in the post-World War II proceedings. First, it helped to satisfy the principle of legality by tying the new charge of crimes against humanity to the relatively well-established prohibition against war crimes. Second, it justified the intrusion of international law into the domestic affairs of a sovereign state. Crimes against humanity effectively trumped domestic authority by criminalizing acts “whether or not in violation of the domestic law of the country where perpetrated.” The war nexus ensured that only after a state had already breached international peace by committing acts of aggression would crimes committed internally be susceptible to international scrutiny and prosecution.
Over time, these legality and sovereignty concerns have become less acute on account of the rise of the human rights movement, which is premised on the idea that the way in which a state treats individuals within its territory and under its control is now beyond doubt a matter of international concern. Modern jurisprudence confirms that crimes against humanity are now entirely autonomous from a state of war. When exactly that happened, however, remains an open question that will no doubt be litigated before the ECCC.
As a result of the Co-Prosecutors’ appeal, the trial of Duch, which was supposed to commence this fall, has been continued until next year. The Pre-Trial Chamber has announced that it plans to issue its decision on the appeal concerning the Closing Order on or about December 5, 2008. At that point, the case file will be transferred to the Trial Chamber to commence trial proceedings with the exchange of witness lists, a Trial Management Meeting, the Initial Hearing, etc. ....

The Cambodian people have been waiting decades for justice -- what is another couple of months at this point?

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