As was reported last week, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has convicted two of the top Khmer Rouge officials -- Nuon Chea and Khieu Samphan -- of crimes against humanity. This is the second case which has emanated from the ECCC, the first being that of Duch, which saw decisions from the Trial Chamber in 2010 and the Supreme Court Chamber (on appeal) in 2012. The judgment and a summary can be found here.
A good factual background for the case can be found on the website of the International Criminal Law Bureau, so I will confine this post to a few legal observations. The decision from a legal perspective does not, for the most part, present any revolutionary thinking, as most of the international criminal law concepts had already been explored in the Duch case. The overarching elements of crimes against humanity as well as the various manners of committing such crimes, such as planning, instigating, ordering, aiding and abetting, as well as JCE and superior responsibility, follow closely the law as set out in the 2010 Trial Chamber judgment. The same can be said about the underlying crimes of murder and persecution.
However, the latest judgment did break some new ground by also examining the crimes of extermination and certain aspects of "inhumane acts." In particular, the foray into inhumane acts allowed the judges in this case to make useful statements about the specific acts of enforced disappearance, forced transfer and attacks against human dignity. While enforced disappearances and forced transfer are now included in the Rome Statute as specific crimes and while attacks against human dignity had been given some attention in the ICTR jurisprudence, the challenge for the ECCC judges (and of course raised by the defence with respect to all the underlying crimes) was to determine whether these crimes existed in the seventies, the time for which the ECCC has jurisdiction. This is the area where the judgment is especially interesting, as it not only extrapolates backwards in time from ICTY and ICTR jurisprudence but also points out that the crimes of enforced disappearance and forced transfer were already known and discussed in post-WWII judgments, including the International Military Tribunal in Nuremberg.
One other item of interest is that the August 7 judgment mentions the controversy with respect to the specific direction requirement for aiding and abetting, which had been introduced by an ICTY Appeals Chamber in 2013 but rejected by another panel of that same Chamber a year later. The ECCC comes to the conclusion that the approach it took in its first judgment was the correct one after all; the ECCC has now joined the Sierra Leone Special Court and the ICC at the international level (and the Supreme Court of Canada in the Ezokola decision in 2013) in welcoming the most recent direction by the ICTY.
Warm thanks to my friend and co-author, Joseph Rikhof, for bringing the decision to my attention and discussing it with me.
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