The Contribution of the Extraordinary Chambers in the Courts of Cambodia to the Establishment of a Hybrid Tribunal Model

Table of Contents

Introduction

1. Transitional Justice and the Hybrid Tribunal Instrument
1.1 Transitional Justice
1.2 The Hybrid Tribunal

2. The Khmer Rouge and Transitional Justice in Cambodia
2.1 History of the Conflict
2.2 The Period after the Conflict
2.3 Transitional Justice Measures

3. The ECCC
3.1 Historical Outline of its Establishment
3.2 Features of the ECCC
3.3 The Meaning of the ECCC to the Cambodian State and People

4. A Cambodian contribution to the hybrid tribunal instrument
4.1 Innovations in Relation to Other Hybrid Courts
4.2 Meaning to Other Post-Conflict States

Conclusion

References

Introduction

The following research paper exemplifies the contribution of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the establishment of a hybrid tribunal model as an instrument for prosecuting serious criminal offences committed systematically during conflicts. The research sphere is demarcated by the world’s 3rd hybrid tribunal novelty, and its participation in the advancement of a hybrid tribunal model, as the internationalized judicial instrument of correction of those atrocities against humanity^[1] that where committed methodically with political purposes in times of authoritarian regimes or armed conflicts of different origin. This question arises from the awareness that by entering into force of the International Criminal Court in The Hague/ICC in 2002, a shift of significance has taken place from the international level back to the domestic one, in dealing with serious crimes. In the context of radical changes, the ECCC comes to strengthen the hybrid tribunal instrument as a judicial organization form with multidimensional benefits, and to offer it sustainability to the advantage of other post-conflict societies.

The research basis on the assumption that the ECCC introduces a new dimension of the hybrid tribunal, and that it opens a new era for the (inter)national justice regarding serious criminal offences: The ECCC is the first hybrid tribunal founded on national law, and legally opened without the UN, to move the gravity centre related to serious criminal justice back to the national level, and presenting a high degree of practicability. With some international support,^[2] the ECCC reckons with its past in accordance with its national interpretation of justice, it simultaneously recreates the Cambodian national legal system out of nothing, strengthening it and coping it with the international standards, without westernizing the retribution process. Realizing this, the ECCC becomes complementary to the ICC, preventing the establishment of parallel national tribunals^[3] by its potential to address the retribution needs of the traumatized society, through considering social psychological aspects.^[4] Therefore, the ECCC may serve as a lesson for other post-conflict states with emerging democracies aspiring for judicial settlements concerning their human rights abusers.

The reasons to choose the ECCC and to use it in order to draw the possibilities for an establishment/enlargement of the hybrid tribunal as instrument for retribution are multifarious and beside its being organized after the enforcement of the Rome Statute, they reside mainly in the facts that the ECCC is highly distinct from the previous 2 tribunals of Sierra Leone and East Timor, not representing the sum of the previous two learned lessons, but being deeply rooted in the national law customs, even without disposing of the necessary judicial personnel. Moreover, the ECCC is an experience with a unique character from historical, societal and political point of view, in that the country was the battlefield of great international powers’ long-lasting interests in Far Asia, with even longer lasting effects. Furthermore, the ECCC is concerned with a crime with no antecedent in the 20th century conflict history: that of a government murdering its own people in order to achieve an ideal society, and than passing over to its own employees. For these reasons, the question of the retribution materializes itself after almost 30 years from the end of the conflict, when many perpetrators are either very old or already dead. Nonetheless, the victims of mass abuses have been acknowledged for the first time as such, receiving names, and participating directly to the writing of the history of the committed crimes.

I considered the most appropriate theory for finding the answers to the research question that of the transitional justice hybrid tribunals, assisted by the ICC’s ‘complementarity principle’ that asserts that in the case of prosecuting serious criminal offences the national institutions prevail as investigating structures, whereas the international actor intervenes only where the national government is unwilling or unable to proceed for justice.

The most adequate methodology I considered to be the qualitative one based on a comparative analytical approach. As the purpose is to investigate the contribution of the ECCC to the settlement of a viable internationalized prosecution instrument, most important statutes are those of the hybrid judicial structures in Cambodia, Sierra Leone and East Timor, in order to set a comparison correlation. This comparative step is added on a normative and explanatory approach in order to see whether the ECCC contributes to a hybrid tribunal pattern for other post conflict/transitional societies. Secondary sources comprising studies on these tribunals are also taken in consideration. Among these are researches and studies realized at Yale, Oxford, at the Documentation Centre in Cambodia (DC-Cam), at the Centre for International Courts and Tribunals, etc.

With reference to the limits of the subsequent writing, it is worth mentioning that the study does not enter the complex discussions evolving around the dichotomist faces of the transitional justice tribunals. It centres on the enhancement of the hybrid tribunal tool as a viable option for dealing with the past by the emerging democracies themselves without having international institutions pursuing retribution for their conational perpetrators. Furthermore, it is not the ambition of this research to set a universal definition of the hybrid tribunal or to provide recommendations for societies to opt for this judicial tool, but to analytically determine whether the ECCC really has the potential to cement a future pathway for this legal mechanism.

The main challenges in the realization of the study represent the lack of a commonly accepted definition of the concept ‘hybrid tribunal’, as well as the very heterogeneous and non-linear emergence of this judicial organization. The situation is furthermore complicated by the scarcity of systematic analytical literature on the ECCC’s implications for the Cambodian nation and state, in order to be able to evaluate its international potential for other post-conflict societies^[5]. So there raises the question regarding whether the ECCC shapes or introduces a hybrid tribunal model.

The paper comprises four chapters: the 1st is an introduction in the field of transitional justice, highlighting the hybrid tribunal. The 2nd chapter is dedicated to the departure point of transitional justice in Cambodia, offering a brief outline of the Khmer Rouge reign, and of the subsequent period. The 3rd chapter presents the ECCC. The main focus lies in the historical outline of the Chambers, its features, and the meaning of the ECCC for the Cambodian nation and state. The last chapter deals with the legacy of the ECCC and its meaning to the post-conflict states, stressing the complementarity virtue to the ICC, some variables of the setting up conditions, the benefits in comparison to the ICC in the realization of transitional justice goals. This approach was considered most favourable to elucidate the ECCC’s importance to a further evolution of the hybrid tribunal form, as an option for other states interested in initiating this type of judicial form.

1. Transitional Justice and the Hybrid Tribunal Instrument

1.1 Transitional Justice

Transitional Justice is a concept developed after the Nuremberg process, out of the necessity to reckon with the massive violation of human rights and social trauma by accounting the leading perpetrators of the 2nd World War. It is a process of juxtaposing judicial^[6], semi-judicial^[7], and non-judicial^[8] measures and instruments for dealing with mass atrocities emerged during conflicts and totalitarian regimes, that is never only one isolated measure, since “a single initiative [….] is unlikely to bring about a peaceful, stable and restored nation; the answer lies in a combination of options, instruments, processes”. (Linton 2001:185) Transitional justice is a complex combination of its afore-mentioned instruments subsequent to the conflict, aiming at the creation of a sense of justice and social reconciliation, in order to settle the foundation for a new social, political, order on a democratic base, where victims may live peacefully next to their perpetrators. (Bickford 2004:1045, Kerr/Mobek 2007:3, Buckley-Zistel 2006:3).

Yet the concept of transitional justice is highly politicized, characterized by dilemmas, discrepancies, dichotomies concerning the selection, succession, risks, and consequences of its instruments, (Sikkink/Walling 2007:442) its “paradoxical goal (being) to undo history. The aim is to re-conceive the social meaning of past conflicts, particularly defeats, in an attempt to reconstruct their present and future effects.” (Teitel 2003:87) Hence, it produces a sinuous multidimensional process with an open end, which constitutes the battle-scene for many contradictory interests of actors with diverse intentions and motivations with respect to the investigation of mass crimes and their perpetrators. (Buckley-Zistel 2006:9)

The choice, duration and efficiency of these instruments and procedures depend on many variables: the duration, extent, nature of the conflict/repressive regime, the power and political will of the newly installed democratic government, the extent and suffering of the victims, the necessity and claims of the civil society, victims, survivors and perpetrators, etc. A likewise important role play the culture and values of the society, the peace agreements, the economic state of the country, the infrastructure during transition, the international involvement, etc. (Kerr/Mobek 2007:10-13). In this context, each case brings forward a unique transitional justice process: some are highly judicial^[9], some highly semi- or non-judicial^[10], and the combination of the available instruments offers a singular picture of each country, for transitional justice is a regional process with particularities that reside deep in the culture of the society in question.

1.2 The Hybrid Tribunal

The ‘hybrid tribunals’ represent the 3rd generation of international courts^[11], an internally heterogeneous class, being still in the phase of conceptualization. (Nouwen 2006:192). A commonly accepted idea is that the term expresses a unique association of national and international judicial courts, legal systems, and personnel, established in countries with emerging democracies where serious criminal offences were committed, and which “endeavours to combine the strengths of the ad hoc tribunals with the benefits of local prosecutions”. (Katzenstein in Skinnider 2007:18)

Its uniqueness results from the constitution and the jurisdiction of the law structures, whose combination of elements can produce a series of manifestations which are not yet concluded with the found cases. These depend on the histories of the conflicts, the degree of functioning and the organisation of the national law system, the extent and ability of cooperation of the national institutions^[12], the ratio of application of the international/national law, the international interests, etc. Already established hybrid courts are the Special Panels for East Timor/SPET/2000^[13] ; the U.N. Interim Administration Mission established Regulation 64 Panels in the Courts of Kosovo/2000^[14] ; the Special Court for Sierra Leone/SCSL/2002^[15] ; the ECCC/2001/2003^[16].

The importance of the hybrid tribunal is inherent to the actual landscape of atrocious conflicts followed either by a great extent of impunity, due to unsatisfactory national and international prosecutions, or by insufficient reconciliation measures which do not cover the society’s need for repairing the past wrongdoings. As the hybrid tribunals originate in the inconclusive results of the International Criminal Tribunal for Rwanda /ICTR, and the International Criminal Tribunal for the former Yugoslavia/ICTY, as well as the political problems related to the ICC (Costi 2005:2), they represent the more advantageous possibility. They can be the alternative to national trials, often intransparent, unfair, corrupt or politicized, as well as an alternative to international trials, which are protracted by many impediments, and have unsubstantial effects on the core of the victimized society, due to geographical distance, lengthiness, and limitation to a very small number of perpetrators. The hybrid tribunals represent the egression of the post-conflict society from the state of impunity practice to internationally accepted retribution, by a traumatized-society-close judicial approach to the crime. In the toilsome process of a nation coming to terms with its past and perpetrators, the hybrid tribunals may contribute to the social healing, and achieve the juxtaposing goals of transitional justice more easily than international tribunals.

Due to the heterogeneity of the hybrid tribunals, a typology could be realized according to:

a.) The degree of international participation: if the tribunal in question abides on the international law, and the degree of appointed international judges and prosecutors represents the majority compared to the national representatives, than that tribunal is an international hybrid tribunal (SCSL^[17]). This is the option employed before the emergence of the ICC. In case the tribunal is established on the national law, and within the existing national law system, the structure is an internationalized hybrid tribunal^[18] (ECCC). In this case there is a majority of domestic judges and prosecutors. This differentiation receives a special connotation after the enforcement of the Rome Statute, which makes the international form of hybrid tribunal less probable and increases significantly the possibility of the emergence of the internationalized form, on the ground of a special provision it comprises in the 17th article.
b.) The level of crimes and criminals in its jurisdiction: there are crimes covered by the Rome Statute, to which correspond particular criminals, (ECCC, SPET) and crimes not covered by the Rome Statute, involving also lower level criminals: the 64 Panels in Kosovo^[19].
c.) The moment of its establishment: this refers to the moment before or after 2002, when the Rome Statute was enforced. Before the enforcement of the Rome Statute, there are SPET-2000 and SCSL-2002. In those cases, the international organization which supported the establishment of the hybrid tribunals was the UNO, after signing Agreements with the post-conflict governments. After the enforcement of the Rome Statute in 2002^[20], like in the case of the ECCC, the situation changed, the signing State Parties being bound to apply the Statute and initiate a court in case they wanted judicial proceedings. Otherwise, the ICC would assume responsibility. The modification that the Rome Statute brings is the complementarity principle that offers priority to the national law system to conduct the investigations and prosecutions against the criminals in question,^[21] under the condition of free consent to the initiation of the court, the existence of a functioning legal system, and working legal institutions, in such a manner that the hybrid tribunals to be based on the national law system, and apply both national and international law.

The Rome Statute has brought forth a crucial change in the settlement and organization of hybrid tribunals. As seen above, previously there could be also the international hybrid tribunals outside the national law system, whereas subsequent to the Rome Statute, the internationalized form of hybrid tribunals based of the national law system would become predominant. It puts forward a code of criminal law previously inexistent, so that states can prosecute their national criminals themselves. Under these circumstances, if a Non- Party State wants to establish a hybrid tribunal, due to the occurrence of the crimes mentioned in the Statute, but does not want to become a State Party of the Statute, it can introduce these crimes in its own criminal code, or it can take the example of other hybrid courts comparing, adapting, or just imitating other courts^[22].

In the case of the State Parties the possibility of the establishment of hybrid tribunals is much higher, should atrocities be committed, for the ratification of the Rome Statute implies the transfer of the ICC crime jurisdiction in the national law system, and the complementarity principle makes the national law system a priority. Only if conditions comprised in article 17 of the Statute are identified, is the case taken by the ICC, excluding thus the option of a hybrid tribunal. Until then the social, economical, political state of the country would most probably require a hybrid tribunal, the extra-judicial conditions for a national trial being rarely fulfilled.

The hybrid tribunals generate a series of commonly accepted midterm and long term benefits compared to (inter)national courts. Being composed of national and international staff, they have the capacity to ‘foster the development of legal norms within emerging legal systems’, by being integrated in the local justice system, and simultaneously introducing the accountability principle. They try to bring the national law procedures in line with the internationally accepted standards, with the purpose of achieving a national independently working law-system.^[23] They have the power to confer the trial credibility by the invested experience, and technical knowledge of the foreign personnel, as well as by ensuring that the crimes in its jurisdiction are treated independently and impartially. The hybrid tribunals introduce and lead to the capacity-building of the national judiciary and the legal system, with long-term impact. There where the context offers a limited availability of professionals, they employ local skills and capacities who transmit the international experience to the national system. Likewise, they have the power to surmount the so called ‘dual legitimacy problem’ on national level, on one hand, by not representing the justice of the winners; and on the international level, on the other hand, by meeting with international standards, for the international judges play a key role in the prevention of the politicization of the trial, and the undue pressure on the local judges. (Costi 2005:12-26)

The hybrid tribunals make the retribution process tangible and actual. The proximity to the traumatized nation raises the accessibility of the people to the proceedings, and this increases the acceptance of the trial, as well as the cooperation of the local individuals, with positive effects on the investigation development. Being more victim-centred than the international courts, the hybrid tribunals create the opportunity for the victims to participate in investigations or as witnesses, which lead to a closer connection to the victims and the communities generating hereby more concrete and direct responses from the society. (Costi 2005:25). Under these circumstances the hybrid tribunals represent the chance of a swifter restoration of social balance, national reconciliation, restitution and redress for the victims, than the international tribunals located outside the country. (Chan 2006:81,82)

[...]

^[1] Genocide, war of aggression, crimes of war, and crimes against humanity, as defined in the Rome Statute.

^[2] After the enforcement of the ECCC law, Cambodia signed an Agreement with the UN, to obtain material support.

^[3] Rwanda’s gacaca tribunals addressing the socio-psychological needs of the victims.

^[4] Victims can claim retribution by knowing that they can address locally an international system, with the hope that their particularities are acknowledged.

^[5] ECCC may provide an example of reckoning with the past, only if it promotes reconciliation, and leads to the consolidation of the Cambodian legal system by an internalization of humanitarian and international law.

^[6] International, national, hybrid tribunals.

^[7] Truth and Reconciliation Commissions, amnesties.

^[8] Museums, historical writings, remembrance days, compensations.

^[9] Rwanda.

^[10] South Africa.

^[11] The 1st generation (1945-1993) begins with the Nuremberg Tribunal; the 2nd generation (1993/1994-1998) starts with ICTR/ICTY; the 3rd period sets on with ICC (1998). (Costi 2005:4-7)

^[12] The willingness of the government to cooperate, the availability of national professionals; the way the executive facilitates the arrest of perpetrators, the forensic investigations, grants amnesties.

^[13] Centre for the Study of Violence and Reconciliation: http://www.justiceinperspective.org.za/index.php?option=com_content&task=view&id=45&Itemid=88

^[14] US Institute of Peace: http://www.usip.org/pubs/specialreports/sr112.html

^[15] http://www.sc-sl.org/

^[16] http://www.eccc.gov.kh/english/about_eccc.aspx.

^[17] STLS adopted the procedure of ICTR, and is established outside the domestic law system.

^[18] The term ‘tribunal’ is not the most appropriate, for there is no tribunal founded, but judicial structures within the existing judicial system. A more suitable appellation can be ‘chamber’, or Panels, etc.

^[19] Organized crime terrorism; inter-ethnic violence; political assassinations, and corruption. (USIP: http://www.usip.org/pubs/specialreports/sr112.html, accessed 21.11.08).

^[20] In 1998 only 60 countries were prepared to enforce the Statute.

^[21] Art. 17 Issues of admissibility: […] the Court shall determine that a case is inadmissible where: the State is unwilling or unable genuinely to carry out the investigation or prosecution; […] the State has decided not to prosecute the person concerned […] the person concerned has already been tried […] the case is not of sufficient gravity to justify further action by the Court. In order to determine unwillingness […] , the Court shall consider […] whether […] the proceedings were […] being undertaken […] for the purpose of shielding the person concerned […] There has been an unjustified delay in the proceedings […]; The proceedings were not […] being conducted independently or impartially […] In order to determine inability […], the Court shall consider whether […] the State is unable to obtain the accused or the necessary evidence and testimony […].

^[22] SCSL oriented its jurisdiction and procedure after the ICTR; SPTL copied the Rome Statute.

^[23] Where the national legal system has not survived the conflict, there are introduced international tribunals, because no national system could uphold a national or a hybrid court. I.e. ICTR, ICTY.