The establishment and operation of the ECCC is part of a significant history of war crimes tribunals, which dates back to the Leipzig trials of 1921, in which high-ranking German military personnel were tried at the German Supreme Court for serious crimes committed during World War I. A further precedent was set by the Nuremberg Trials held immediately after the end of the Second World War, at which over 200 members of the Nazi regime were prosecuted for war crimes including genocide. The International Military Tribunals as they were officially known, were held in Nuremberg, Germany between 1945 and 1946, and were initiated by the Allied powers – the United Kingdom, the United States, the Soviet Union and France. The trials were the result of a series of agreements and resolutions drawn up by the Allied powers, as well as the occupied territories, including the London Charter. One of the principles of the trials was that defendants should be tried in the place where the alleged crimes had been committed. The maximum penalty the court could award was death (by hanging). Each of the four countries provided judges and prosecutors. Defence lawyers were, however, mostly German.
1 | Research the Nuremberg Trials and compare them with the operation of the ECCC. What are the key differences between the two? Consider, in particular, the amount of time which elapsed between the alleged crimes and the trial. What are the reasons for this difference and what are the consequences? Consider, also, the maximum penalty permitted, the number of defendants prosecuted, and the organisation of power within the court’s structure.
Besides the ECCC, the UN has had a key partner role in the following war crimes tribunals, all of which continue in session to the present day:
- International Criminal Tribunal for the former Yugoslavia (1993 – to the present)
- International Criminal Tribunal for Rwanda (1994 – to the present)
- The Special Court for Sierra Leone (2002 – to the present)
- Special Tribunal for Lebanon (2009 – to the present)
2 | Research these contemporary tribunals and compare them with the ECCC. What issues do these modern tribunals have in common? What differences are evident? Consider: the number of cases tried, the penalties permitted, the amount of time elapsed between the alleged crimes and prosecution, the nature of evidence given, financial assistance provided, the relationship between the tribunal and the national government in question.
The origins of contemporary war crimes tribunals such as the ECCC, date back to the Hague Conventions of 1899 and 1907 and the Geneva Protocol of 1925. These were international conventions which worked to establish binding international laws in relation to acts of war, provide a formal definition of war crimes, and sought collective agreement on the banning of certain types of warfare. Almost all resolutions proposed by these conventions were violated in World War I and have been in numerous wars ever since. Nevertheless, these protocols still provide a frame work through which war crimes might be determined and prosecuted.
The United Nations (UN) is an international organisation founded in 1945 to replace the League of Nations which had failed to prevent the rise of Hitler and World War II. The mandate of the United Nations is to promote and maintain international peace and security and, in doing so, to uphold the principles established by the original conventions at the Hague. For further information, see the UN site here.
The United Nations War Crimes Commission worked from 1943 (prior to formation of UN itself) to investigate war crimes and report to Allied nations, who then initiated the war crimes tribunals which became known as the Nuremberg Trials. The UN maintains both the International Court of Justice and the International Criminal Court in the Hague, the Netherlands. The latter was founded in 2002, and is the only permanent, international court which can try the most serious of international crimes – in particular war crimes and genocide – but only those committed after 2002.
Problems with the ECCC:
Two key problems with the operation of the ECCC are the time which has passed since the crimes which are being prosecuted were committed, and the slow progress of the courts through each case. These issues are, of course, connected, as the progression of each trial is hampered by the fact that many documents have either been lost or deliberately destroyed in the thirty-year interim, witnesses may now have died and memories may now be confused or distorted. Furthermore, the defendants are in their 70s or 80s, and some of them claim that they are unfit for trial, or request shorter sentences due to their old age. Indeed, Ieng Thirith has recently been judged to be mentally incapable of standing trial; a decision which is, however, being challenged. Attempts are being made to restore her to sufficient health to appear at the ECCC.
The reasons for the delay in establishing a war crimes tribunal are complex, but are mostly accounted for by that fact that the demise of the Khmer Rouge gave way to a period of civil war and political instability between 1979 and 1998. In 1997 the Cambodian Prime Minister, Hun Sen, who was himself an officer within the Khmer Rouge regime, requested assistance from the United Nations to establish an Extraordinary Chamber in Cambodia, in accordance with UN/ international law. In 2001, a law was passed by the Cambodian National Assembly, which made provisions for the creation of a special court. However, such court processes are costly, and it took several more years for finance to be raised via international donations from Japan, India, Germany, Canada, Australia, the European Union and numerous other countries.
3 | See this link for a detailed chronology of the establishment of the ECCC between 1997 and 2005. (Note that you have to select the year you wish to see for each timeline). What does the information on this site reveal about the complexity of establishing an international war crimes tribunal?
Apart from the time it has taken to establish the ECCC, the complex structure of the court (see above) and its multiple languages (Khmer, French and English) means that processes are very slow moving. The UN is currently putting pressure on the court to increase both the number of people under investigation and the speed with which decisions are reached. However, this has met with reluctance on part of Cambodian government, which wishes to retain control over future trials.
4 | View the following ‘out-take’ clip from Brother Number One, “Court controversy”. In this clip, Cambodian historian Sophal Ear refers to the slow progress made between 1993 and 2006 to establish the ECCC. Why do you think that, according to Ear, the Cambodian authorities would be “very afraid of a process that is outside their control”? Author and historian Peter Maguire refers to the ECCC as “political justice” which is an “admixture of law, politics and history”: how might the influence of history and politics complicate (and slow down) the progress of international law?
NEW CLIP: COURT CONTROVERSY
5 | In the clip “Court controversy”, Sophal Ear describes the court as a “mechanism for sensitising people” and a “tool for reconciliation”, while Peter Maguire suggests that the court might generate a degree of “historical accountability”. What do these ideas mean, and how do help to explain the complexity of the court’s role in contemporary Cambodian society?
6 | In the clip Argument for the Court, Karim Khan, a British-based QC who headed the Civil Party group 1 legal team and who was one of Rob’s lawyers, argues for the importance of international justice. Sophal Ear, on the other hand, although acknowledging the court’s uses, is more critical of the process as it has unfolded in Cambodia. Evaluate their statements, pointing our where they agree and fail to agree. See also this article by Sophal Ear.
NEW CLIP: KHAN ON INTERNATIONAL LAW
