Penal Code of Cambodia 1956, Recueil Judiciare, Special Edition, (1956).

A Partial Victory for Fair Trial Rights at the ECCC with the Decision on the Statute of Limitations on Domestic Crimes By Tanya Pettay and Katherine Lampron* At the Extraordinary Chambers in the Courts of Cambodia ( ECCC ), the Trial Chamber s recent Decision on Defence Preliminary Objections (Statute of Limitations on Domestic Crimes) ( Decision on Domestic Crimes ) is a partial victory for fair trial rights. The Trial Chamber held that the Closing Order (i.e. the Indictment) failed to set out facts or modes of liability to support the charges of domestic crimes, and this resulted in its inability to try domestic crimes in Case 002. Insufficient pleadings directly relate to an Accused s right to know the case against him or her and the right to have adequate time to prepare a defence. The Trial Chamber upheld these fundamental fair trial rights despite conflicting ECCC Internal Rules that do not envision the Trial Chamber ruling on alleged errors in the Closing Order. The Trial Chamber also befittingly criticized the Co-Investigating Judges and the Pre-Trial Chamber for sending the Accused to trial for domestic crime charges when the Closing Order was obviously devoid of factual support in this regard. Unfortunately, the Trial Chamber did not seize the opportunity to address the Accused s objections that the ECCC does not have the jurisdiction to charge domestic crimes. The Accused have argued that the applicable statute of limitations has expired, thus charging domestic crimes would violate the principle of non-retroactivity. The failure of the Trial Chamber to make a decision on the merits of the objections is disconcerting because the ECCC can still charge suspects with domestic crimes even though all Accused, and some ECCC Judges, have submitted that this would be unlawful. Background: Substantive and Procedural Issues Surrounding Article 3 and Article 3 new In 2001, the Cambodian National Assembly promulgated the Law on the Establishment of the Extraordinary Chambers ( ECCC Law ). 1 Article 3 of the ECCC Law gives the ECCC the competence to prosecute anyone accused of having committed homicide, torture, or religious persecution as defined in the 1956 Criminal Code of the Kingdom of Cambodia ( 1956 Penal Code ) 2 during the indictment period (17 April 1975 to 6 January 1979). Article 3 extends the statute of limitations set forth in the 1956 Penal Code for an additional twenty years. In 2004, the Cambodian National Assembly amended the ECCC Law, replacing Article 3 with Article 3 new, which extends the statute of limitations by ten years, from twenty to thirty years. Both *Tanya Pettay is the senior legal consultant for the IENG Sary Defence at the Extraordinary Chambers in the Courts of Cambodia and Katherine Lampron is a legal intern for the IENG Sary Defence. The authors are indebted to Michael G. Karnavas, Co-Lawyer for Mr. Ieng Sary, for his invaluable guidance in writing this piece. His enduring passion for ensuring the fair trial rights of the Accused is a source of constant inspiration. 1 Law on the Establishment of the Extraordinary Chambers, NS/RKM/0801/12, approved by the Senate, 23 July 2001. 2 Penal Code of Cambodia 1956, Recueil Judiciare, Special Edition, (1956). 1

Article 3 and Article 3 new 3 are controversial because the 1956 Penal Code includes a ten-year statute of limitations for the crimes of homicide, torture and religious persecution. Unless the statute of limitations was tolled, it would have expired before Article 3 or Article 3 new were enacted. If the statute of limitations expired before Article 3 was enacted, then applying these provisions would violate the principle of non-retroactivity by prosecuting an accused person under a law that did not exist at the time of the alleged act, or by implementing an expired law. This issue has generated more questions related to the statute of limitations, such as whether it was ever suspended due to a troubled Cambodian judicial system. An ancillary issue involves a 2001 Cambodian Constitutional Council Decision in which the Constitutional Council held that Article 3 complies with the Cambodian Constitution, 4 resulting in debates over whether the applicability of Article 3 or 3 new may be considered by the ECCC. 5 In addition to substantive issues concerning the application of Article 3 and Article 3 new, procedural problems related to the pleading of domestic crimes have plagued the ECCC since the beginning of Case 001. ECCC procedure reflects the fact that it is a hybrid court based on the Civil Law system. There are Co-Investigating Judges ( CIJs ) who are responsible for investigating suspects and for gathering the facts related to the case. 6 Unlike the Common Law system, in which it is generally the role of the prosecutor to indict suspects, the CIJs are ultimately responsible for issuing the Closing Order (i.e. the Indictment). 7 Due to the hybrid nature of the ECCC, the CIJs include one Cambodian Judge and one international Judge, and there is no majority vote to break any disagreement that may arise between them. 8 3 Case 001 objections focused on both Arts. 3 and 3 new, whereas Case 002 objections focused on Art. 3 new only. 4 Constitutional Council, Case No. 038/001/2001 (17 January 2001), Decision No. 040/002/2001, dated 12 February 2001. 5 See, e.g., Case of Kaing Guek Eav, 001/18-07-2007-ECCC/TC, Written Submissions Concerning the Defence Preliminary Objection, 18 May 2009, E9/9, paras. 30-31, arguing that that the Decision has no bearing on whether ECCC Law is consistent with international principles. In Case of Kaing Guek Eav, 001/18-07-2007-ECCC/TC, Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes, 26 July 2010, E187 ( Case 001 Domestic Crimes Decision ), the international Judges found that the Decision is not binding on the ECCC, but the Cambodian Judges found that the ECCC does not have the competence to review the Decision. 6 ECCC Internal Rules (Rev. 8, 3 August 2001) ( Internal Rules ), Rules 55, 57, 66-67. 7 Internal Rules, Rule 67, [t]he Co-Investigating Judges shall conclude the investigation by issuing a Closing Order, either indicting a Charged Person and sending him or her to trial, or dismissing the case. The Co-Investigators are not bound the Co-Prosecutors submissions. 8 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, entry into force 6 June 2003 ( ECCC Agreement ), Art. 5(1); ECCC Law, Art. 23 new; Internal Rules, Rule 13. 2

Case 001, Trial of KAING Guek Eav alias Duch The Debate over Pleading Domestic Crimes in the Closing Order The Office of the Co-Prosecutors ( OCP ) opened the judicial investigation in Case 001 when it filed its Introductory Submission on 18 July 2007. 9 For over a year, the OCP repeatedly requested the CIJs to include charges of domestic crimes under the 1956 Penal Code against Duch. 10 When the CIJs issued the Closing Order in 2008, 11 it sparked a debate on how domestic crimes under Article 3 new should be pleaded. The CIJs did not indict Duch for domestic crimes, stating that even though certain acts of the Accused do constitute the domestic offenses of homicide and torture, these acts must be accorded the highest available legal classification, in this case: Crimes against Humanity or Grave Breaches of the Geneva Conventions of 1949. 12 The OCP appealed the Closing Order, asserting that there is no hierarchy between any of the crimes in the jurisdiction of the ECCC, and as such, domestic crimes cannot be subsumed by international crimes. 13 The OCP argued that the elements of the domestic crimes and international crimes differ because each of the international crimes contains an element that is not present in the domestic crimes, and vice versa. 14 The Pre-Trial Chamber found that the elements of the domestic crimes charged differed from the elements of the alleged international crimes, and that the Introductory Submission included facts that supported distinct domestic crime charges. 15 The Pre-Trial Chamber thus ordered that the domestic crimes of torture and premeditated murder be added to the Closing Order. 16 Substantive Issues before the Trial Chamber in Case 001 9 Case of Kaing Guek Eav, 001/18-07-2007-ECCC-OCIJ(PTC), Co-Prosecutors Appeal of the Closing Order against Kaing Guek Eav Duch dated 8 August 2008 ( Case 001 OCP Appeal of the Closing Order ), D99/3/3, 5 September 2008, citing Case of Kaing Guek Eav, 001/18-07-2007-ECCC-OCIJ(PTC), Introductory Submission, D3, 18 July 2007 ( Introductory Submission ). 10 Id., citing Introductory Submission, para. 122, and Rule 66 Final Submission Regarding Kaing Guek Eav alias DUCH, D96, 18 July 2008, para. 275(a). See also Case of Kaing Guek Eav, 001/18-07-2007-OCIJ, Order concerning Requests for Investigative Actions, D94/I, 4 June 2008, p. 1, citing Case of Kaing Guek Eav, 001/18-07- 2007-OCIJ, Request by the Co-Prosecutors, 2 June 2008. 11 Case of Kaing Guek Eav, 001/18-07-2007-ECCC-OCIJ, Closing Order Indicting Kaing Guek Eav alias Duch, 8 August 2008, D99. 12 Id., para. 152. 13 Case 001 OCP Appeal of the Closing Order, paras. 29, 31. 14 Id., paras. 32-33. 15 Case of Kaing Guek Eav, 001/18-07-2007-ECCC-OCIJ(PTC), Decision on Appeal Against Closing Order Indicting KAING Guek Eav Alias Duch, 5 December 2008, D99/3/42, paras. 72, 84, 99, 103. 16 Id., para. 41. See also para. 106 in which the Pre-Trial Chamber reasoned that adding the charges at this state did not infringe the right of the Accused to be informed of the charges against him. 3

Once the Trial Chamber was seized of Case 001, the Duch Defence filed a preliminary objection, submitting that the domestic crimes in the Closing Order are time-barred because of the ten-year statute of limitations in the 1956 Penal Code. 17 It asserted that the limitation period expired before Article 3 new was promulgated in 2004, violating the principle of non-retroactivity. The Trial Chamber directed all parties to file written submissions addressing issues related to the statute of limitations. 18 The Duch Defence submitted, inter alia, that no prosecution or investigative action was initiated against Duch prior to the expiration of the statute of limitations, 19 and that the statute of limitations was not suspended after 1979 because Cambodia had a functioning judicial system. 20 Furthermore, the Duch Defence argued that the Constitutional Council s Decision is confined to the constitutionality of the ECCC Law and has no bearing on whether the ECCC Law is consistent with international principles. 21 The OCP asserted that prosecuting crimes under domestic law does not violate the principle of legality because these crimes were still in existence in 1975, and Duch both had access to the 1956 Penal Code and could foresee being prosecuted for his alleged crimes. The OCP submitted that the statute of limitations in the 1956 Penal Code did not expire because it was tolled until at least 1993 due to a non-functioning judicial system until that time. 22 Finally, the OCP stressed that the Constitutional Council s Decision on Article 3 s compliance with the Cambodian Constitution indicates that Article 3 new also conforms to international standards. 23 The Trial Chamber did not issue a decisive ruling on the merits of these arguments because it was unable to achieve the requisite four to five supermajority and was split three (Cambodian Judges) to two (international Judges). The Trial Chamber Could Not Acquire a Supermajority 17 Case of Kaing Guek Eav, 001/18-07-2007-ECCC/TC, Preliminary Objection Concerning Termination of Prosecution of Domestic Crimes, D288/6.9/1, 28 January 2009, paras. 6-8. See also 1956 Penal Code, Art. 109. 18 Case of Kaing Guek Eav, 001/18-07-2007-ECCC/TC, Written Submissions Concerning the Defence Preliminary Objection, 18 May 2009, E9/9, para. 1. On 20 April 2009, the Trial Chamber directed all parties, including the Defence, to file detailed written submissions on the preliminary submission no later than 18 May 2009 at 2 pm. In particular, the Trial Chamber directed the parties to address five specific questions. 19 Id., para. 2. 20 Id., paras. 3-6. 21 Id., paras. 30-31. 22 Case 001 Domestic Crimes Decision, para. 5 citing Case 001 Co-Prosecutors Written Response to the Defence s Preliminary Objection to the Applicability of the 1956 Cambodian Penal Code, 18 May 2009, D288/6.9/7, paras. 24-26, 30-32, 35-36. 23 Id., para. 6, citing Case 001 Co-Prosecutors Written Response to the Defence s Preliminary Objection to the Applicability of the 1956 Cambodian Penal Code, para. 28. 4

In the Trial Chamber s Decision on the Preliminary Objection, the first main issue it analyzed is whether the applicable limitation period under the 1956 Penal Code, (or subsequent Cambodian Codes), may be considered to have been interrupted or suspended, and if so, during what time period. 24 According to the 1956 Penal Code, there is a ten-year limitation period for felonies, and this period runs from the date of the alleged act, yet is interrupted if there is a judicially ordered investigation. 25 The Trial Chamber found that if there were no interruptions, then the limitation period for the Accused expired ten years after the end of the indictment period (6 January 1979), making the end of the limitation period, 6 January 1989. 26 The Trial Chamber held that no legal or judicial system existed in Cambodia between 1975 and 1979, 27 but the Trial Chamber was unable to agree on whether the applicable limitation period was interrupted or suspended between 1979 and 1993, and whether this period had expired by the time Article 3 and Article 3 new were enacted. There was a split between the Cambodian Judges (NIL Nonn, YA Sokhan and THOU Mony) and the international Judges (Silvia CARTWRIGHT and Jean-Marc LAVERGNE). The Cambodian Judges agreed with the OCP and the Civil Parties that the limitation period started to run, at the earliest, on 24 September 1993, 28 when the Kingdom of Cambodia was created, and that the statute of limitations for the alleged domestic crimes committed by Duch had not expired in 2006, when the ECCC investigation against Duch commenced. The Cambodian Judges held that when an investigation of alleged crimes is impossible, the statute of limitations does not apply, 24 Id., para. 8(A). 25 Id., para. 10, citing Articles 109, 111-14 of the 1956 Penal Code. 26 Id., para. 12. 27 Id., para. 14. 28 As argued by the NUON Chea, IENG Sary and IENG Thirith Defence teams in Case 002, the Cambodian judges conclusion that the limitation period did not begin to run until 1993 must be incorrect. The judicial system functioned before that time. For example, in an article written in 1990, historian Michael Vickery writes: An item in the Phnom Penh Kampuchea newspaper on 28 July 1988 may serve as an illustration. On page 11, [there is] a list of 61 lawsuits reported as pending in the courts The 61 cases listed by Kampuchea range from the trivial civil suits for libel and fraud to the very serious - murder and torture by police agents. Included are several cases of murder, rape, physical abuse, and nonpayment of debts. One was a complaint by an individual against the police and provincial court of Kandal for having released three alleged murderers. It is clear that courts in Cambodia are functioning according to laws and that individuals willingly enter into litigation, even bringing charges against state organs. Michael Vickery, The Rule of Law in Cambodia, 14.3 CULTURAL SURVIVAL Q. (1990), available at http://www.culturalsurvival.org/publications/cultural-survival-quarterly/cambodia/rule-law-cambodia (emphasis added). See also MICHAEL VICKERY, KAMPUCHEA: POLITICS, ECONOMICS AND SOCIETY 120 (Frances Pinter 1986), where Vickery states, One non-political trial which was reported involved five men accused in May 1982 of robbery and in one case murder, who were sentenced to prison for terms of eighteen years up to life for the murderer. 5

and concluded that the national judicial capacity was not functioning well during this period because the Democratic Kampuchea regime destroyed the judicial system. They held that from 1979 until 1982, the judicial system did not work at all, and only functioned to a limited extent after 1982. 29 The international Judges found that there was simply not enough evidence before them to conclude that the Cambodian legal system was unable to launch investigations or prosecutions between 1979 and 1993; hence, the limitation period expired by the time Article 3 and Article 3 new were promulgated. They held that there is not much guidance from international or national practice in relation to criteria used for suspending limitation periods. The Judges noted that there are no generally accepted rules at the international level, and while some national practice suggests that limitation periods may not run during periods in which a judicial system is incapacitated from war, this State practice results from national legislation. Regardless, the OCP failed to fulfil its burden of showing that the Cambodian judicial system was defunct during the relevant time. 30 The second question the Trial Chamber considered is whether Article 3 or 3 new s extension of the limitation period is consistent with national or international standards, and in the case the limitation period expired before it was extended, it considered whether it may interpret Article 3 new as reinstating the right to prosecute domestic crimes. 31 The Trial Chamber again split. The Cambodian Judges declined to consider whether Article 3 new is in accordance with international standards, relying on its holding that Article 3 new is lawful as well as on the Constitutional Council Decision, which, the Judges declared, the ECCC does not have the competence to review. 32 The international Judges held that there is no express contradiction between the international fair standards applicable before the ECCC and retroactive amendment, by a national legislature, of a statute limitation period, 33 yet found that the Constitutional Council Decision does not amount to a decision by the Cambodian legislature (i.e. a national 29 Case 001 Domestic Crimes Decision, paras. 16-25. 30 Id., paras. 28-29, 31, 35. 31 Id., para. 8(B). 32 Id., paras. 36-38. 33 Id., para. 43. 6

legislature). 34 The international Judges also observed that there are no national or international law provisions supporting the interpretation of Article 3 new as a permissible reinstatement of domestic crimes. 35 The Judges were split three to two, and the absence of a supermajority barred the Trial Chamber from convicting Duch for domestic crimes. 36 According to Article 14 new of the ECCC Law, a decision by the Extraordinary Chamber of the trial court shall require the affirmative vote of at least four judges. 37 The Trial Chamber s Decision consequently left open the possibility of charging the Accused with domestic crimes at the ECCC. Case 002, Trial of NUON Chea, IENG Sary, IENG Thirith, and KHIEU Samphan Substantive and Procedural Issues during Pre-Trial Prior to the Trial Chamber s Decision on the Preliminary Objection in Case 001, and before the CIJs filed the Closing Order in Case 002, the IENG Sary Defence filed a motion challenging the ECCC s jurisdiction to apply Article 3 new. 38 The IENG Sary Defence submitted that Article 3 new violates the principle of non-retroactivity, and that international conventions such as the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights ( ICCPR ), which Cambodia must respect pursuant to its Constitution, also forbid the retroactive application of law. 39 The IENG Sary Defence also set forth an argument not discussed in Case 001: that applying Article 3 new would violate Mr. IENG Sary s right to be treated equally before the law. 40 Article 31 of the Cambodian Constitution provides that [e]very Khmer citizen shall be equal before the law and this right is additionally supported by other Cambodian law and international law. 41 The IENG Sary Defence asserted that the statute of 34 Id. 35 Id., para. 54. 36 Id., para. 56. 37 ECCC Law, Art. 14. 38 See Summary of IENG Sary s Motion Against the Application of Crimes Listed in Article 3 New of the Establishment Law (National Crimes) at the ECCC ( Summary of IENG Sary s Motion Against the Application of Article 3 new ), available at http://sites.google.com/site/iengsarydefence/. 39 Id. 40 Id. 41 See Cambodian Code of Criminal Procedure, Art. 3; ICCPR, Arts. 14(1) and 26. Article 14(1) of the ICCPR states in part that [a]ll persons shall be equal before the courts and tribunals. Article 26 states in part that [a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. The 7

limitations for domestic crimes was not been extended generally, violating IENG Sary s right to equal treatment because he could be charged with a crime that a similarly situated Accused/Charged Person in any other court in Cambodia could not. The CIJs issued the Closing Order for Case 002, 42 deciding to charge the Accused with domestic crimes 43 despite finding themselves in a procedural stalemate. 44 The CIJs were unable to agree on the limitation period for the relevant domestic crimes or on the effect of the Constitutional Council Decision. 45 According to Internal Rule 72, if there is a disagreement between the CIJs, either judge may bring the disagreement before the Pre-Trial Chamber to settle, 46 but the CIJs chose not to make use of this procedure. Instead, the CIJs stated that taking into account their obligation to make a ruling within a reasonable time [they] have decided by mutual agreement to grant the [OCP s] requests, leaving it to the Trial Chamber to decide what procedural action to take regarding crimes in the Penal Code 1956. 47 All Defence teams appealed the Closing Order, but only the IENG Sary and IENG Thirith Defence teams contested the jurisdiction of the ECCC to apply Article 3 new. 48 These two Defence teams argued that Article 3 new violates the right to be treated equally before the law, as well as the principle of non-retroactivity. 49 Additionally, the IENG Sary Defence submitted that the CIJs should have invoked Rule 72 in the interest of the presumption of innocence, and that the CIJs failed to set out facts or forms of liability in the Closing Order that support the application of Article 3 new. 50 The OCP responded to all of the Accused s appeals, 51 asserting ECCC must respect the rights enshrined in the ICCPR pursuant to the Cambodian Constitution, and Article 13 of the ECCC Agreement and Article 35 new of the ECCC Law. 42 Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ, Closing Order, 15 September 2010, D427 para. 1574 ( Case 002 Closing Order ). 43 Id., paras. 1574-76. 44 Id., para. 1574. 45 Id. 46 Internal Rules, Rule 72(2), (4). 47 Case 002 Closing Order, para. 1574. 48 Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), IENG Sary s Appeal against the Closing Order, 25 October 2010, D427/1/6 ( IENG Sary s Appeal Against the Closing Order ); Case of Nuon Chea et al., 002/19-09- 2007-ECCC/OCIJ(PTC), IENG Thirith Defence Appeal from the Closing Order, 18 October 2010, D427/2/1, para. 73 ( IENG Thirith s Appeal Against the Closing Order ). 49 IENG Sary s Appeal against the Closing Order, para. 141; IENG Thirith s Appeal from the Closing Order, paras. 76-78. 50 IENG Sary s Appeal against the Closing Order, para. 141. 8

that Article 3 new meets the principle of legality enshrined in Article 15(1) of the ICCPR, 52 that the 1956 Penal Code was tolled until 1993 due to a broken judicial system, 53 that the Constitutional Council Decision is binding and final, 54 and that there is no violation of the right to equality. 55 The Pre-Trial Chamber decided that the ECCC had subject-matter jurisdiction over domestic crimes. 56 The Pre-Trial Chamber held that: a. the application of Article 3 new does not violate the principle of non-retroactivity, 57 reasoning that the ten-year statute of limitations had been tolled due to a poorly functioning judiciary and had not expired when Article 3 new was enacted; 58 b. Article 3 new does not violate an Accused s right to be treated equally before the law, 59 and complies with the fair trial requirements of Article 14 of the ICCPR; 60 c. the CIJs did not err by sending Mr. IENG Sary to trial for domestic crimes despite a disagreement between them, nor did they violate the presumption of innocence 61 since under Rule 72, the CIJs are not obligated to send an issue before the Pre-Trial Chamber; 62 and d. although the CIJs did not explicitly state the facts and modes of liability for the charges of domestic crimes, the Pre-Trial Chamber would not address issues related to defects in the Closing Order, 63 but would only address whether this lack of specification prevented the Accused from being sent to trial for domestic crimes. 64 The Pre-Trial Chamber held, [w]hether the facts stated in the indictment can actually be characterised as [domestic crimes] under the 1956 Penal Code is ultimately a question of legal characterisation that is to be determined by the Trial Chamber, and bears no 51 Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ, Co-Prosecutors Joint Response to NUON Chea, IENG Sary and IENG Thirith s Appeals Against the Closing Order, 19 November 2010, D427/1/17. 52 Id., para. 90. 53 Id., paras. 107-14. 54 Id., paras. 100-01; The IENG Sary Defence then contested the OCP arguments in Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), IENG Sary s Reply to the Co-Prosecutors Joint Response to Nuon Chea, Ieng Sary and Ieng Thirith s Appeals Against the Closing Order, 6 December 2010, D427/1/23. 55 Id., para. 127. 56 Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), Decision on IENG Sary s Appeal against the Closing Order, D427/1/30, 11 April 2011, para. 76. 57 Id., para. 285. 58 Id., para. 286-87. 59 Id., para. 288. 60 Id., paras. 291-92. 61 Id. 62 Id. The Pre-Trial Chamber states that the default position is that the investigation shall proceed. 63 Id., para. 293. 64 Id. 9

effect, at this stage, on the ECCC s jurisdiction to send the accused for trial for domestic crimes. 65 Substantive and Procedural Issues before the Trial Chamber in Case 002 Case 002 proceedings moved to the Trial Chamber in January 2011 and all four Accused filed preliminary objections contesting the application of Article 3 new, asserting that it violates the non-retroactivity principle. 66 One month later, the IENG Sary Defence filed a Motion to Strike Portions of the Closing Order due to Defects ( IENG Sary s Motion to Strike ), 67 which focused on the defects in the drafting of the Closing Order. The IENG Sary Defence argued that the Closing Order does not set out facts to support the charges under Article 3 new of the domestic crimes, nor does it set out the forms of liability that are to apply to these crimes; 68 the Trial Chamber should necessarily strike all Article 3 new references. The OCP responded that the ECCC legal framework does not envisage motions to amend or strike portions of the Closing Order at the trial stage, 69 and that the pleadings related to domestic crimes were sufficient. 70 Soon after, the Trial Chamber filed a memorandum responding to various motions in Case 001, 71 in which it commented on IENG Sary s Motion to Strike and stated that the Chamber is bound by the scope of the Indictment. The Trial Chamber referred to Rules 67(2), 76(7) and 89(1)(c) which, read together result in there being no basis for the Trial 65 Id., para. 296. Rule 98(2) of the ECCC Internal Rules provides that [t]he judgment shall be limited to the facts set out in the Indictment. The Chamber may, however, change the legal characterisation of the crime as set out in the Indictment, as long as no new constitutive elements are introduced. The ICC s regulations contain a similar rule, as noted by the Trial Chamber. See Case of Kaing Guek Eav Duch, 001/18-07-2007/ECCC/TC, Judgement, 26 July 2010, E188, para. 495. 66 Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, IENG Thirith Defence s Preliminary Objections, 14 February 2011, E44, paras. 9, 20-24; Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Preliminary Objections Concerning Termination of Prosecution (Domestic Crimes) 14 February 2001, E47, paras. 10, 23; Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Consolidated Preliminary Objections, 25 February 2011, E51/3, para. 41; Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Summary 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, 25 February 2011, E51/4, para. 28. 67 Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, IENG Sary s Motion to Strike Portions of the Closing Order due to Defects, 24 February 2011, E58. 68 Id., paras. 3-6. 69 Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Co-Prosecutors Response to IENG Sary s Motion to Strike Portions of the Closing Order due to Defects, 16 March 2011, E58/1 ( OCP Response to IENG Sary s Motion to Strike ), paras. 1-7, 13, 18-19. 70 Id. 71 Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Trial Chamber Response to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management Meeting of 5 April 2011, 8 April 2011, E74. 10

Chamber to grant any amendments to the Indictment or to enable it to consider procedural defects in the Investigation. 72 An Analysis of the Trial Chamber s Decision on Domestic Crimes The Trial Chamber rendered its Decision on Domestic Crimes, focusing its holding on the sufficiency of the Closing Order. 73 In the Decision on Domestic Crimes, the Trial Chamber: (i) held that the Closing Order s insufficiency in setting out the facts and modes of liability to support domestic crimes charges resulted in its inability to try domestic crimes in Case 002; 74 and (ii) granted the IENG Sary Motion to Strike insofar as it pertains to domestic crimes. 75 The Trial Chamber found that the Closing Order does not specify the material facts or the modes of liability which relate to domestic crimes and that there is no way to remedy these defects. 76 The Trial Chamber decided it was unnecessary to determine the merits of the Defences preliminary objections related to the applicability of domestic crimes before the ECCC because of the defective Closing Order. 77 Criticisms of the CIJs and the Pre-Trial Chamber The Trial Chamber repeatedly noted the clear lack of factual support in the Closing Order for indicting the Accused with domestic crimes, 78 while highlighting that both the CIJs and the Pre- Trial Chamber allowed the charges to go through despite being aware of this problem. 79 The Trial Chamber maintained a caustic, if not condescending, tone throughout its discussion of the decisions by the CIJ and the Pre-Trial Chamber. 80 72 Id., p. 2, citing Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Transcript of Trial Management Meeting, 5 April 2011, p. 97-98. 73 Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Decision on Defence Preliminary Objections (Statute of Limitations on Domestic Crimes) ( Case 002 Decision on Domestic Crimes ), E122, 22 September 2011. 74 Id., paras. 15, 22. 75 Id., para. 23. 76 Id., paras. 21-22. 77 Id., p. 11. 78 Id., paras. 14-15, 21. 79 Id., paras. 11-12, 14-15. 80 Id., paras. 14-15. Far from specifying that these domestic crimes are merely corollaries of similar international crimes the Closing Order makes reference to the Pre-Trial Chamber s finding that these domestic crimes [cannot be subsumed under international crimes] Although apparently concluding that [JCE] is a mode of responsibility applicable only to international crimes, this form of responsibility is included in the Closing Order s disposition. Neither the Closing Order nor the Pre-Trial Chamber explains how the Accused could be held responsible for domestic crimes as a member of a JCE or as a superior. 11

The Trial Chamber observed that both the CIJs and the Pre-Trial Chamber dodged the issues surrounding the domestic crimes charges and passed the responsibility to the Trial Chamber to make a decision. 81 The Trial Chamber then castigated the CIJs for citing a passage stating that domestic crimes cannot be subsumed under international crimes because the material elements differ, while concurrently finding that domestic crimes can be based on the same facts and modes of liability used to support alleged international crimes. 82 The Trial Chamber could have further exposed the CIJs and the Pre-Trial Chamber s inconsistency had it cited to the CIJ s Order 83 and the Pre-Trial Chamber s affirmation of the Order, 84 in which both declared that JCE is a form of liability that does not apply to domestic crimes. The Internal Rules: Procedure vs. Fair Trial Rights While the Trial Chamber agreed with the OCP that motions to strike or amend the Closing Order are not usually part of the ECCC legal framework, 85 it also stated that the domestic crime charges do not meet the preconditions designed to safeguard an Accused s fair trial rights to be informed of the nature of the charges against him and to have time to prepare a defence, per Rule 67(2). 86 The OCP had argued that IENG Sary s Motion to Strike was inadmissible because the Internal Rules do not allow for a Motion to strike or amend portions of the Closing Order once it has become final. 87 Rather, challenges to the Closing Order can be made through an appeal to the Pre-Trial Chamber pursuant to Rule 74(3); or, after the Closing Order has become final, 81 The Trial Chamber noted that in the Closing Order, the CIJs disagreed over the limitation period for domestic crimes, and rather than utilize the disagreement procedure via Rule 72, they left it to the Trial Chamber to decide what procedural action to pursue. The Trial Chamber also noted the Pre-Trial Chamber s decision to leave the determination as to whether the facts in the Closing Order can be characterized as domestic crimes to the Trial Chamber, while simultaneously finding that the facts and modes of liability used for international criminal charges were enough to send the Accused to trial on the basis of domestic crimes. Id., paras. 11-15. 82 Id., para. 15. Unfortunately, while the footnote is correct, the Trial Chamber erred in the text when it attributed the passage in the Closing Order to the Pre-Trial Chamber (it was actually a statement by the OCP). 83 Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), Order on the Application at the ECCC of the Form of Liability Known as JCE, 8 December 2009, D97/13, p. 10. 84 Case of Nuon Chea et al., 002/19-09-2007-ECCC/OCIJ(PTC), Decision on the Appeals against the Co- Investigative Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, D97/15/9, para. 102. 85 Case 002 Decision on Domestic Crimes, para. 16, citing OCP Response to IENG Sary s Motion to Strike, para. 3. See also Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Trial Chamber Response to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management Meeting of 5 April 2011, p. 2, citing Case of Nuon Chea et al., 002/19-09-2007-ECCC/TC, Transcript of Trial Management Meeting, 5 April 2011, p. 97-98. 86 Case 002 Decision on Domestic Crimes, para. 16. See also Internal Rules, Rule 67(2). 87 OCP Response to IENG Sary s Motion to Strike, para. 3. 12

through preliminary objections to the Trial Chamber via Rule 89. 88 Yet, according to Rule 67(2): [t]he Indictment shall be void for procedural defect unless it sets out the identity of the Accused, a description of the material facts and their legal characterisation by the [CIJs], including the relevant criminal provisions and the nature of the criminal responsibility. 89 Even though the Trial Chamber acknowledged that the procedure set out in the Internal Rules does not support the Trial Chamber striking or amending the Closing Order, it implied that the protection of fair trial rights takes priority, as further borne out by its decision. International Standards The Trial Chamber sought guidance from standards in international jurisprudence concerning the specificity of indictments and focused on International Criminal Tribunal for the former Yugoslavia ( ICTY ) jurisprudence. 90 Essentially, the Trial Chamber stated that, according to the ICTY, a primary purpose of the indictment is to provide the Accused with adequate notice of the case against him, and this right translates into an obligation for the material facts underpinning the charges to be included in the indictment. 91 The Trial Chamber observed from ICTY case law that should an indictment fail to include with sufficient specificity the material aspects of the case against the Accused, it suffers from a material defect [I]t is insufficient for an indictment to merely confirm its reliance on each of mode of liability charged for all counts alleged in an indictment without providing further details about the acts alleged in respect of the type of responsibility incurred. 92 The Trial Chamber then repeated its finding that the Closing Order does not refer to material facts or forms of responsibility in relation to the domestic crimes charged and does not specify whether the domestic crimes rely on the same facts as other crimes, and if so, which ones. 93 Ironically, the Trial Chamber failed to definitively state that the Closing Order s remarkable vagueness with respect to domestic crimes does not comport with the 88 Id.; Internal Rules, Rule 74(3). Rule 74(3) states: the Accused may appeal against the following orders or decisions of the [CIJs] See also Internal Rules, Rule 89(1), which states: [a] preliminary objection concerning (a) the jurisdiction of the Chamber, (b) any issue which requires the termination of prosecution; (c) nullity of procedural acts made after the indictment is filed[,] shall be raised no later than 30 (thirty) days after the Closing Order becomes final, failing which it shall be inadmissible. 89 Internal Rules, Rule 67(2). 90 Case 002 Decision on Domestic Crimes, paras. 17-20. 91 Id., para. 17. 92 Id., para. 19, citing Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004, para. 226. 93 Case 002 Decision on Domestic Crimes, para. 21. 13

international practice of including with sufficient specificity the material aspects of the case 94 or with the need to [provide] details about the acts alleged in respect of the type of responsibility incurred. 95 The Trial Chamber s reasoning would be stronger had it explicitly applied the international standards to the Closing Order s shortcomings. Inability to Remedy the Defective Closing Order The Trial Chamber found that the defects in the Closing Order could not be remedied through an amendment. 96 It reasoned that the ECCC legal framework does not envisage sending a final Closing Order back to the CIJs for corrections, and doing so would both infringe on the Accused s right to an expeditious trial and be impracticable. 97 The Trial Chamber cited Internal Rule 76(7) to support its position. 98 Rule 76(7) states: [s]ubject to any appeal, the Closing Order shall cure any procedural defects in the judicial investigation. No issues concerning such procedural defects may be raised before the Trial Chamber or the Supreme Count Chamber. If no procedural defects related to the Closing Order are to be raised before the Trial Chamber, then the Trial Chamber violated Rule 76(7) by considering the defects raised by the IENG Sary Defence. Irrespective of Rule 76(7), the Trial Chamber s decision is logical, if not sound. It could not apply Rule 76(7) in this instance because the Closing Order cannot cure all procedural defects if it is the Closing Order itself that is defective. According to Article 12 of the ECCC Agreement, where there is uncertainty regarding the interpretation or application of relevant rule of Cambodian law guidance may be sought in procedural rules established at the international level. 99 Given the questionable application of Rule 76(7), the Trial Chamber should have looked to international law for further guidance. There is support for the notion that substance should take priority over form from the Special Tribunal for Lebanon; Judge Cassese has declared that in international criminal proceedings, pure formalities should not gain the upper 94 Id., para. 19. 95 Id. 96 Id., para. 22, citing Internal Rules, Rule 76(7). 97 Case 002 Decision on Domestic Crimes, para. 22. 98 Id. 99 ECCC Agreement, Art. 12(1). 14

hand whenever important rights might be at stake. 100 The Trial Chamber ultimately held that fundamental fair trial rights should not be compromised. Considering the defects in the Closing Order, and the Trial Chamber s inability to cure them, the Trial Chamber held it could not determine the scope of the case against the Accused in Case 002, and that it was improperly seized of the offenses in the 1956 Penal Code. 101 Conclusion The Domestic Crimes Decision is significant in that the Trial Chamber chose to uphold the Accused s fair trial rights to know the case against them and to have adequate time to prepare a defence over any conflict the Domestic Crimes Decision had with the Internal Rules, or with the ECCC s legal framework. The Trial Chamber defended these rights despite agreeing with the OCP that motions to strike or amend the Closing Order do not generally form part of the ECCC s legal framework, 102 and despite the fact that Rule 76(7) forbids the Trial Chamber to hear issues concerning procedural defects in the Closing Order. 103 The Trial Chamber rightfully admonished the CIJs and the Pre-Trial Chamber for sending the Accused to trial on domestic crime charges when the Closing Order was so clearly devoid of any supporting material facts or modes of liability. Even still, this Decision is unsatisfying because the Trial Chamber did not utilize this opportune moment to make a decision on the merits of Article 3 new. This means that the ECCC could still indict suspects for domestic crimes, applying a law that the Accused and the international Trial Chamber Judges assert violates, at the least, the principle of nonretroactivity. It is curious why the Trial Chamber opted for continuing legal uncertainty by kicking the proverbial can down the road, especially considering the rather robust effort of the parties and the time spent litigating the issue of the applicability of national crimes at the ECCC. 100 Case CH/PRES/2010/01, Order Assigning Matter to Pre-Trial Judge, 15 April 2010, para. 16, citing Mavrommatis Palestine Concessions, Judgement No. 2, 1924, P.C.I.J., Series A, No. 2, p.34; Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgement No. 6, 1925, P.C.I.J., Series A, No. 6, p. 14; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crimes of Genocide (Croatia v. Serbia, Preliminary Objections), para. 81: [ICJ pronouncements] are also applicable to international criminal proceedings to the extent that such application (i) is not made to the detriment of fundamental rights of the accused, the victims or the witnesses or any other person appearing before international criminal courts, and (ii) does not amount to a serious infringement of strict procedural provisions aimed at safeguarding the principle of fair and expeditious justice. 101 Case 002 Decision on Domestic Crimes, para. 22. 102 Id., para. 16. 103 Id., para. 22. 15