¹ Chandler, David P., A History of Cambodia (Boulder, Colorado: West view Press, 1983), 209–11 Google ScholarPubMed; Gottesman, Evan, Cambodia After the Khmer Rouge. Inside the Politics of Nation Building (New Haven: Yale University, 2003), 24–25 Google Scholar.

² See generally Chandler, David P., The Tragedy of Cambodian History (New Haven: Yale University Press. 1991)Google Scholar.

³ Including current Cambodian Prime Minister Hun Sen, who aged twenty-seven in 1979, was the world's youngest foreign minister at the time.

⁴ Nike, Howard De, Quigley, John, and Robinson, Kenneth, eds., Genocide in Cambodia, (Philadelphia: University of Pennsylvania Press, 2001) 507-8Google Scholar.

⁵ Maguire, Peter, Facing Death in Cambodia, (Columbia University Press, 2005) 65 CrossRefGoogle Scholar.

⁶ Ibid, 65.

⁷ Pronounced ‘DOIK’, not “Doosh” or “Dutch” as I have heard said several times on foreign radio and television media over the past few years.

⁸ Adams, Brad, the Director of Human Rights Watch (Asia), interviewed by Kinetz, Erika, Cambodia Justice moves forward, Christian Science Monitor, November 21 2007 Google Scholar

⁹ Mydans, Seth, “Khmer Rouge Figure Appears in Open Court.” New York Times 21 November 2007, electronic edition: <http://www.nytimes.com/2007/11/21/world/asia/21cambo.html>Google Scholar

¹⁰ David Scheffer, Amicus Curiae brief, In the Appeal of Duch against the CIJ's Detention Order, October 4 2007, 3 (“As a separately constituted, independent and internationalized court, which did not exist during the period of Duch's detention by the military court, the ECCC is not responsible for the detention of DUCH by the military court, nor can it be held responsible for any reference by the military court to the ECCC law”.)

¹¹ Mutua, Makau, Savages, Victims, and Saviours: The Metaphor of Human Rights, 42 HARV. INT'L L.J. 201, 230 (2001)Google Scholar.

¹² See e.g. Cockayne, James, Hybrids or Mongrels? Internationalized War Crimes trials as Unsuccessful Degradation Ceremonies 4 Journal of Human Rights, 1–19 (2005)CrossRefGoogle Scholar; Bertodano, Susan de, Current Developments in Internationalized Courts, 1 J. INT'L CRIM. JUST., 226–244 (2003)CrossRefGoogle Scholar; Linton, Suzannah, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 CRIM. L.F., 185–246 (2001)Google Scholar; Linton, Suzannah, Prosecuting Atrocities at the District Court of Dili, 2 MELB. J. INT'L L., 414–458 Google Scholar.

¹³ Linguist and trenchant critic Noam Chomsky has described Duch's ongoing trial as a “farce” for a variety of reasons, including the selectivity of prosecution. See Macan-Markarq, Marwaan Khmer Rouge Trials May Expose US, China, Inter Press Service, March 30, 2009 Google Scholar.

¹⁴ See generally Chandler, David P.: Facing the Cambodian past: Selected essays, 1971–1994 (Silkworm Books 1996)Google Scholar.

¹⁵ Goldston, James A., “An Extraordinary Experiment in Transitional Justice”, in Justice Initiatives (OSJI, Spring 2006), p.2 Google Scholar [hereinafter ‘Justice Initiatives’]; also see Hammarberg, Thomas, “Efforts to Establish a Tribunal against Khmer Rouge Leaders: Discussion between the Cambodian Government and the UN,” paper presented on May 29, 2001 Google Scholar, at a seminar in Stockholm organized by the Swedish Institute of International Affairs and the Swedish Committee for Vietnam, Laos, and Cambodia, reprinted as a special supplement to the Phnom Penh Post, September 14–27, 2001.

¹⁶ Presentation by Deputy Prime Minister Sok An to the National Assembly on Ratification of the Agreement Between Cambodia and the UN and Amendments to the 2001 Law concerning the Establishment of the ECCC, at 8 (4–5 Oct. 2004).

¹⁷ For the process in Cambodia, see e.g., Heder, Steve. et al., ‘Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge’, War Crimes Office of the Washington College of Law, American University and the Coalition for International Justice, June 2001 Google Scholar; Jarvis, Helen, ‘Trials and Tribulations: The Latest Twists in the Long Quest for Justice for the Cambodian Genocide’, Critical Asian Studies, pp. 607–610 (2002)CrossRefGoogle Scholar.

¹⁸ Letter of 21 June 1997 (“Requesting Letter”) as partly reproduced in UN Docs. A/53/850 and S/1999/231, ‘Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135 Annexed to Identical Letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council’, (the “Report of the Group of Experts”) para 5.

¹⁹ UN Doc. GA/RES/52/135 (1997).

²⁰ Report of the Group of Experts, para 190.

²¹ Ibid, para 190.

²² The Requesting Letter (dated 21 June 1997) reads, inter alia, “Cambodia does not have the resources or expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for the assistance of the United Nations. We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be given to Cambodia”. See Report of the Group of Experts, para 5.

²³ Mydans, Seth, “Cambodian leader resists punishing top Khmer Rouge”, New York Times, 29 December 1998 Google Scholar.

²⁴ Asian Political News, “Trial of Khmer Rouge's Ieng Sary would mean war: Hun Sen”, January 15, 2001 Google Scholar.

²⁵ Preamble, Report of the Group of Experts.

²⁶ An, Sok, The Cambodian Government, Justice Initiatives, 28 Google Scholar.

²⁷ Kek Galabru, Executive Director of Cambodian human rights NGO LICADHO, was moved to say that “if the (Cambodian) government really had the political will to establish this tribunal we should have had one already…we are not sure that the tribunal will ever happen, even though the government has no more excuses to delay.” Dworkin, Anthony, Cambodian War Crimes Tribunal Given Go-Ahead, May 5, 2005. Available at <http://www.crimesofwar.org/onnews/news-cambodia2.html>Google Scholar.

²⁸ Mcguire, Peter, “Cambodia Genocide: Memories from Tuol Sleng Prison”, 2002 Google Scholar: (“The recent acquittal of the Khmer Rouge commander Chhouk Rin by a Cambodian judge, invoking a controversial Khmer Rouge amnesty law and the recent statements of members of the Cambodian Parliament, make it very unlikely that the parliament will approve the UN's trial plan. The uncertain fate of the UN-approved Khmer Rouge war-crimes tribunal raises a troubling question: Was amnesty for Khmer Rouge war crimes the price for peace in Cambodia”.) Available at <http://www.fathom.com/feature/35706/>.

²⁹ Mydans, Seth, ‘U.N. Ends Cambodia Talks on Trials for Khmer Rouge’, New York Times, 9 February 2002, p. 4 Google Scholar.

³⁰ N Doc. GA/RES/57/228 (2002).

³¹ 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, Preamble 6 June 2003, available at <http://www.cambodia.gov.kh/krt/english/ index.htm>.

³² Law on the Ratification of the 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 and Law on Amendments to the Law on the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 5 October 2004, available at http://www.cambodia.gov.kh/krt/english/index.htm.

³³ Transcript, “Hans Corell interview,” BBC East Asia Today, March 17, 2003 Google Scholar.

³⁴ Statement by His Excellency Ouch Borith ambassador, permanent representative of the Kingdom of Cambodia to the United Nations at the Third Committee of the 57th Session of the United Nations General Assembly, New York, May 1, 2003.

³⁵ The ECCC's chief spokesperson, Foster, Peter, described the hearing as a “milestone event in the history” of the ECCC and Cambodia Google Scholar. See Foster's, Peter interview by Reuters, “Khmer Rouge Jailer in court's first public hearing”, November 20, 2007 Google Scholar.

³⁶ Pre-Trial Chamber Decision on Appeal against Provisional Detention Order, 2 December 2007 (hereafter “PTC Decision”) paras 27-61.

³⁷ Erika Kinetz, “Cambodian Justice Moves Forward, Phnom Penh Post, 21 November 2007.

³⁸ Clay, Thea, “Duch Pre-trial hearing - 41 Community and Religious Leaders Continue their Participation in the ECCC Under the Living Documents Project”, available at <www.cambodiatribunalmonitor.org Google Scholar

³⁹ Chhang, Youk, Khmer Justice, Wall Street Journal, November 14, 2007 Google Scholar

⁴⁰ Aman, Diane Marie, Message as Medium in Sierra Leone, 7 ILSA J. INT'L & COMP.1., 237, 238 (2001)Google Scholar (“Expressive theories look not so much at whether a law deters or whether a law punishes, but at the message we get from a law”.)

⁴¹ Drumbl, Mark, Atrocity, Punishment, and International Law, 17 (Cambridge: 2007)CrossRefGoogle Scholar.

⁴² For authors advocating the promise of hybrid courts see Dickinson, Laura, ‘Transitional Justice in Afghanistan: The Promise of Mixed Tribunals’, Denver Journal of International Law and Policy, 23–42 (2002)Google Scholar ‘The Promise of Hybrid Courts’, 2003 American Journal of International Law Journal, pp. 295–310 Google Scholar, ‘The Relationship between Hybrid Courts and International Courts: the Case of Kosovo’, New England Law Review (2003)Google Scholar; Higonnet, Etelle, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’, Yale Law School Student Scholarship Series, Paper 6 (2005)Google Scholar; and Lipscomb, Rosanna, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’, Columbia Law Review, 182–212 (2006)Google Scholar.

⁴³ Katzenstein, Suzanne, Hybrid Tribunals: Searching for Justice in East Timor, Harvard Human Rights Journal / Vol. 16, Spring 2003, 246 Google Scholar.

⁴⁴ Dickinson, L., ‘ The Relationship between Hybrid Courts and International Courts: The Case of Kosovo’, New England Law Review, 1059–1072, 1060 (2003)Google Scholar.

⁴⁵ Nouwen, Sarah, ‘Hybrid courts’: The hybrid category of a new type of international crimes courts’, Utrecht Law Review, Volume 2, Issue 2 (December) 2006, 190–214, p.191CrossRefGoogle Scholar.

⁴⁶ Dickinson, Laura ‘The Promise of Hybrid Courts’, 2003 American Journal of International Law, pp. 295–310, p. 296CrossRefGoogle Scholar.

⁴⁷ Drumbl, Mark A., Towards a New Criminology of International Crime19 Ohio St. J. on Disp. Resol. 263, 271 Google Scholar.

⁴⁸ Alvarez, Jose, Crimes of State/Crimes of Hate: Lessons from Rwanda Yale Journal of International Law 24 (1999): 385 Google Scholar.

⁴⁹ An, Sok, The Khmer Rouge Tribunal: What it Means for Cambodia, Justice Initiative, p.28 Google Scholar.

⁵⁰ Cockayne, James, Hybrids or Mongrels? Internationalized War Crimes trials as Unsuccessful Degradation Ceremonies Journal of Human Rights, 4:455, 2005 at p.459 CrossRefGoogle Scholar.

⁵¹ Every investigative, prosecutorial and administrative department within the ECCC is headed or co-headed by a Cambodian national. All defendants and victim civil parties are required to have a national lawyer who may be assisted by a foreign co-lawyer. The ECCC's judicial chambers are staffed by more Cambodians than internationals. Diane Orentlicher, special counsel of the Open Society Justice Initiative, believes that the Tribunal marks the evolution of international justice, “recognition, after 15 years of international and hybrid courts like this one, not to exclude victims from the justice that is being dispensed on their behalf”, telephone interview with Mydans, Seth, “In the Khmer Rouge Trials, Victims will not Stand Idly By” New York Times, June 17 2008 Google Scholar.

⁵² Mydans, Seth, “In the Khmer Rouge Trials, Victims will not Stand Idle By” New York Times, June 17 2008 Google Scholar.

⁵³ Pellet, A., ‘Internationalized Courts: Better than Nothing in: Romano, C. et al. (eds.), Internationalized Criminal Courts and Tribunals, 2004, pp. 437–444, p. 439CrossRefGoogle Scholar.

⁵⁴ An, Sok, The Khmer Rouge Tribunal: What it Means for Cambodia, Justice Initiative, p.28 Google Scholar.

⁵⁵ Dickinson, Laura, The Promise of Hybrid Justice, 307 Google Scholar.

⁵⁶ Oscar Schachter, a member of the UN legal staff and later Professor at the University of Columbia referred to the emergence of an “invisible college of international lawyers” dedicated to the development of universally recognized legal norms in his seminal article, ‘The Invisible College of International Lawyers,’ 72 Northwestern Univ. L. Rev. (1977), 217 Google Scholar.

⁵⁷ Koskenniemi, Martti, International Lawyers (2007), p.3, paper presented at Erik Castrén Institute of International Law and Human Rights, available at <http://www.helsinki.fi/eci/Publications/Talks_Papers_MK.htm>Google Scholar

⁵⁸ For example, in relation to the Special Court for Sierra Leone, the hope of the UN Security council was that a “credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace..”.UN Security Council Resolution 1315 (2000), Preambular Paragraph 6 (August 14, 2000).

⁵⁹ Preamble, Resolution adopted by the General Assembly – the Khmer Rouge Trials, GA Resolution A/RES/57/228, 27, February 2003 [the UN GA Resolution adopting the UN Agreement which created the ECCC].

⁶⁰ The claim that accountability leads to effective remedy for victims, reconciliation and stability is also disputed by scholars and, in view of the paucity of empirical evidence, remains to be seen in the Cambodian context. For the purposes of this article, I will interrogate the claim that accountability ensures fair and equitable justice.

⁶¹ Kevin Doyle, Long Delayed Justice, TIME, November 21, 2007.

⁶² Preamble Framework UN agreement, ECCC law, Art 2

⁶³ Article 2(1), ICCPR.

⁶⁴ Zahar, Alexander & Sluiter, Goran, International Criminal Law (Oxford) 2007. p. 280 Google Scholar.

⁶⁵ See Translation of the Constitution of the Kingdom of Cambodia, Article 13, available online at http://www.cdpcambodia.org/constitution.asp

⁶⁶ Article 12(1), UN Agreement (“The procedure shall be in accordance with Cambodian law.)

⁶⁷ Article 12(2), UN Agreement.

⁶⁸ See the “Document Containing the Charges pursuant to Article 61(3)(a) and of the List of Evidence pursuant to Rule 121(3)” (1CC-01/04-01/06-356 and annexes, 28 August 2006.” Such factors include, inter alia, the complexity of the case, the severity of the offence and the penalty to be expected in the case of a conviction, the range of evidence and difficulties in the investigation, and the conduct of the judicial authorities”.

⁶⁹ Communication No.336/1988, at p.306, para. 6.6

⁷⁰ Communication No.564/1993, J. Leslie v Jamaica (Views adopted on 31 July 1998), in UN Doc. GAOR, A/53/40 vol. 11.), p.28, para 9.3.

⁷¹ Communication No. 672/1995, C. Smart v Trinidad and Tobago (Views adopted on 29 July 1998), in UN doc. GAOR, A/53/40 (vol.11), p.149, para 10.2.

⁷² ICCPR, supra note 31, art, 9(1); CliffordMcLawrence v. Jamaica, HRC Comm. No. 702/1966, Para. 5.5 (1997) (“the principle of legality is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation”); Hugo van Alphen v. Netherlands, HRC Comm. No. 305/1988, Para. 5.6 (1990) (providing that States must “observe the rules governing pre-trial detention laid down in the Code of Criminal Procedure”).

⁷³ Jorge A. Gimenez v Argentina, Case 11,245, Report 12/96, Inter-Am. CHR., OEA/Ser.L/V/II.91 Doc.7 at 33, para 71 (1996).

⁷⁴ Ibid, para 72.

⁷⁵ Law on Temporary Detention Period, CS/RKM/0899/09, Art. 1 (adopted 26 August1999), Transitional Criminal Law, Ar.21(1) (adopted 10 September 1992), Cambodian Criminal Procedure Code, Article L.413-26, Internal Rules, Art.63(6),(7) adopted 10 August 2007)

⁷⁶ Case No. ICTR-98-44A-T, Juvenal Kajelijeli v Prosecutor, Judgement and Sentence, 1 December 2003, at para. 967. At trial, the defendant was granted credit for time served for five years, five months and twenty-five days. On Appeal, the time during which the defendant had spent awaiting his transfer from Benin to the ICTR in Arusha was added to this original credit, hence reducing the defendant's sentence by an additional 306 days. The Appeals Chamber also considered that the Trial Chamber had erred in its interlocutory decision dismissing the fact that his rights were violated during the period of his arrest and detention in Benin, and found in favour of the accused on appeal, ruling that the Trial Chamber should have determined his rights had been violated.

⁷⁷ Prosecutor v Andre Rwamakuba, Case no. ICTR-98-44C-T, Decision on Appropriate Remedy, paragraphs 40, 45 (31 January 2007).

⁷⁸ Order of Provisional Detention by the CIJ dated 31 July 2007 (“ CIJ's Detention Order”)

⁷⁹ CIJ's Detention Order, paragraphs 2 and 20.

⁸⁰ PTC Decision, para 19: “The Pre-trial Chamber is of the view that it can only take a violation of [Article 9 of the ICCPR] into account when the organ responsible for the violation was connected to the organ of the ECCC, or had been acting on behalf of the ECCC or in concert with organs of the ECCC.For all practical and legal purposes, the ECCC is, and operates as, an independent entity within the Cambodian court structure and therefore has no jurisdiction to judge the activities of other bodies”.

⁸¹ Ibid, p.8.

⁸² Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, para. 9.

⁸³ Zahar, & Sluiter, , International Criminal Law, p.13 Google Scholar

⁸⁴ ECCC Law, Article 2 (“Extraordinary Chambers shall be established in the existing court structure”).

⁸⁵ Agreement, Art. 12(1), “The procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.” It is evident from this provision that the drafters of the UN Agreement sought to preclude the ECCC from relying on Cambodian law to circumvent international standards. See also, Goran Sluiter, Due Process and Criminal Procedure in the Cambodian Extraordinary Chambers, 4 J. INT'L CRIM. JUST. 314, 318-22 (2006)

⁸⁶ The charges against Duch and the orders placing him and holding him in detention by the Military Court were based on the crimes currently under the ECCC's jurisdiction and the Military Court made specific reference to the ECCC's authority to justify his Prior Detention. It appears therefore that Duch was merely being housed by the Military Court's detention centre in anticipation of the ECCC's proceedings against him.

⁸⁷ Defense Appeal Brief Challenging the Order of Provisional Detention of 31 July 2007, Case.,. No. 002/14-08-2006, para 3, 5 September 2007.

⁸⁸ Military Court Detention Order, 28 February 2006, on file with author.

⁸⁹ PTC Chamber Decision, para 19.

⁹⁰ Juvénal Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgment, para. 221.

⁹¹ Ibid, para. 223.

⁹² Prosecutor. v. Lubanga, ICC Appeal Chamber, Case ICC-01/04-01/06, 14 Dec.06, para 41.

⁹³ Zahar, Alezander & Sluitter, Goran, “International Criminal Law”, (Oxford, 2008), at 285-6Google Scholar.

⁹⁴ Drumbl, Mark A., Towards a New Criminology of International Crime19 Ohio St. J. on Disp. Resol. 263, 270.Google Scholar; See also Hannah Arendt, The Human Condition 241 (1958); see also Carlos Santiago Nino, Radical Evil on Trial vii, ix (1996).

⁹⁵ Tallgren, Immi, The Sensibility and Sense of International Criminal Law, 13 Eur. J. Int'l L. 561 (2002), 561CrossRefGoogle Scholar (“stripped of its utility and rationality…international criminal justice is a criminal justice comes close to a religious exercise of hope and perhaps of deception.”)

⁹⁶ PTC Decision, para 53.

⁹⁷ PTC Decision, para 52.

⁹⁸ Doyle's, Kevin interview with Naath, Van, printed in, Long Delayed Justice, TIME, November 21, 2007 Google Scholar.

⁹⁹ Scheffer, David, Amicus Curiae brief, In the Appeal of Duch against the CIJ's Detention Order, October 4 2007 Google Scholar.

¹⁰⁰ Sadat, Leila Nadya, Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable in Universal Jurisdiction – National Courts and the Prosecution of Serious Crimes Under International Law (Ed. Macedo, Stephen), 2004, University of Pennsylvania Press. p.196 Google Scholar

¹⁰¹ The periods included the ten months covering his arrest in Cameroon and the extradition procedure; the nine-month delay in the request for Barayagwiza's provisional detention through his transfer to the detention center in Arusha; and the three months between his arrival at the detention unit in Arusha and his initial appearance before the Tribunal.

¹⁰² Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Appeals Chamber Decision, 3 November 1999 (“Barayagwiza I’’), para 85: (“…the fact remains that the Appellant spent an inordinate amount of time in provisional detention without knowledge of the general nature of the charges against him. At this juncture, it is irrelevant that only a small portion of that total period of provisional detention is attributable to the Tribunal, since it is the Tribunal—and not any other entity—that is currently adjudicating the Appellant's claims. Regardless of which other parties may be responsible, the inescapable conclusion is that the Appellant's right to be promptly informed of the charges against him was violated”).

¹⁰³ Prosecutor v. Barayagwiza, Case No. ICTR-97-19-A, Decision (Prosecutor's Request for Review or Reconsideration), 31 March 2000

¹⁰⁴ Zahar, Alezander & Sluitter, Goran, “International Criminal Law”, (Oxford, 2008), at vii–viii Google Scholar. Also See Schabas, William, “Barayagwiza v. Prosecutor” (2000) 94 AM. J. INT'L L. 536 Google Scholar.

¹⁰⁵ Nikolic' and the Prosecution agreed to proceed with the motion on the basis of an agreed statement of facts, to the effect that: Nikolic' had been abducted from the FRY by persons unknown, put into the trunk of a car and smuggled across the border into Bosnia and Herzegovina; he was then arrested uneventfully by an SFOR contingent; and, most notably, there was no connection between SFOR, the Prosecution and the abductors.

¹⁰⁶ Ultimately, the ICTY Trial Chamber held that an abuse of process would only apply and terminate proceedings where the Accused had been subject to serious mistreatment, specifying that:”Whether such a decision should be taken also depends entirely on the facts of the case and cannot be decided in the abstract. Accordingly, the level of violence used against the Accused must be assessed. Here, the Chamber observes that the assumed facts, although they do raise some concerns, do not at all show that the treatment of the Accused by the unknown individuals amounts was of such an egregious nature.”Nikolic, ICTY Trial Chamber.

¹⁰⁷ For critical commentary, Sloan, James, Breaching International Law to Ensure Its Enforcement: The Reliance by the ICTY on Illegal Capture” (2003) 6 YB. INT'L HUMANITARIAN L. 319 CrossRefGoogle Scholar.

¹⁰⁸ Prosecutor v. Dragan Nikolic', No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002 (hereafter “Nikolic' (Trial Chamber), para. 111.

¹⁰⁹ Prosecutor v. Dragan Nikolic’, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, Appeals Chamber, 5 June 2003 (hereafter ‘‘Nikolic’ (Appeals Chamber)), para. 26.

¹¹⁰ Nikolic' (Appeals Chamber), para. 30. For commentary, see Carcano, Andrea, The ICTY Appeal Chamber's Nikolic' Decision on Legality of Arrest: Can An International Criminal Court Assert Jurisdiction Over Illegally Seized Offenders?'(2003) 13 ITALIAN YB. INT'L L. 77 Google Scholar;

¹¹¹ Ashworth, Andrew (1998), The Criminal Process: An Evaluative Study, 2nd edn. Oxford: OUP Google Scholar.

¹¹² Mark J. Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt 150 (2001), 157.

¹¹³ In his seminal 1961 piece, “Conditions of successful degradation ceremonies”, American Journal of Sociology 61: 420–424 CrossRefGoogle Scholar, Harold Garfinkel presented a sociological analysis of ideal-type degradation ceremonies.

¹¹⁴ Garfinkel, Harold, Conditions of successful degradation ceremonies, American Journal of Sociology 1961: 420-424, at p.422-3Google Scholar.

¹¹⁵ See Cockayne, James, Hybrids or Mongrels? Internationalized War Crimes trials as Unsuccessful Degradation Ceremonies Journal of Human Rights, 4:455, 2005 CrossRefGoogle Scholar. Cockayne applies Garfinkel's analysis to hybrid tribunals/

¹¹⁶ Currie, Robert J., “Abducted Fugitives Before the International Criminal Court: Problems and Prospects”, Criminal Law Forum (2007) 18:349–393, 372CrossRefGoogle Scholar.

¹¹⁷ Cohen, Stanley, State Crimes of Previous Regimes: Knowledge, Accountability, and Policing of the Past, “Journal of Law and Society Inquiry 20 (1995), p. 22 Google Scholar.

¹¹⁸ United States v. Toscanino, 500 F.2d 267 (Ct. App. 2nd Circ., 1974), at 274.

¹¹⁹ “US: Notorious Cambodian Police Chief in US for Counter-Terror Talks at FBI.” Human Rights Watch, 27 April 2007. <http://hrw.org/english/docs/2007/04/16/usint15717.htm> Also see: “Cambodia: After 10 Years, No Justice for Grenade Attack on Opposition.” Human Rights Watch, 29 March 2007 Google ScholarPubMed.

<http://hrw.org/english/docs/2007/03/28/cambod15587.htm> Also see the following for a full country report, 2006: http://hrw.org/englishwr2k7/docs/2007/01/11/cambod14866.htm

¹²⁰ Cambodia signed the First Optional Protocol to the ICCPR, GA Res. 220A (XXI) of 16 December 1966, 21 UN GAOR Supp. (No.16) at 59, UN Doc. A/6316 (1966), 999 UNTS 302, but has not yet ratified it.

¹²¹ See e.g. Conclusions and Recommendations of the Committee against Torture: Cambodia (‘CAT Conclusions’), 5 February 2004, UN Doc. CAT/C/CR/31/7, § 5; Commission on Human Rights Resolution 2003/79 on Situation of human rights in Cambodia, 25 April 2003, § 13; and GA Resolution on Situation of human rights in Cambodia, 28 February 2002, UN Doc. A/RES/56/169. §

¹²² The murder of labour union activist Mr. Chea Vichea and the questionable and much-reported detention of innocent suspects Mr. Born Samnang and Mr. Sok Sam Oeun in this case were reportedly attributable to a senior police officer who remains free and a close ally of the ruling elite. See “Cambodia: The Situation of Human Rights in 2006.” Asian Human Rights Commission, see: <http://material.ahrchk.net/hrreport/2006/Cambodia2006.pdf> Also see: Sokheng, Vong.” Hun Sen's Nephew still at large, as death toll climbs.” Phnom Penh Post, Issue 12/23, November 7 – 20, 2003 Google Scholar.

¹²³ Heder, Steve, The Defendants, Justice Initiatives, 53, at 56 Google Scholar: (“The most negative outcome would be if unfair proceedings take place but are declared to be fair: such an outcome would be deeply demoralizing for Cambodia's dedicated fair trial advocates, some of whom regard the ECCC as offering the possibility of generating reform.”)

¹²⁴ Anger and pain at Duch's trial, Associated Press, February 17, 2009.

¹²⁵ See McGrew, Laura, Truth, Justice, Reconciliation and Peace in Cambodia: 20 Years after the Khmer Rouge (February 2000)Google Scholar.

¹²⁶ Cambodian Human Rights Action Committee, press release, February 21, 2002.

¹²⁷ “No Perfect Justice”: Interviews with Thun Saray, Son Chhay, and Ouk Vannath, Justice Initiatives, 112 Google ScholarPubMed

¹²⁸ Heindel, Anne, Amicus Curiae brief, In the Appeal of Duch against the CIJ's Detention Order, October 4 2007 Google Scholar (“For eight years Duch has been held in detention without any apparent attempt to bring him to trial. He is not the only detainee in Cambodia who has been held for an extended period without process. It is essential to the legitimacy and legacy of the ECCC that it does everything in its power to ensure the rights of persons falling under its jurisdiction. By doing so, it can make a significant contribution to long-term reconciliation efforts in Cambodia, the scope of which extends far beyond the ECCC's limited mandate and the short period of time during which it will be in operation.”)

¹²⁹ Goldston, James A., “An Extraordinary Experiment in Transitional Justice”, in Justice Initiative (2006)Google Scholar.

¹³⁰ Preamble, Resolution adopted by the General Assembly – the Khmer Rouge Trials, GA Resolution A/RES/57/228, 27, February 2003 [the UN GA Resolution adopting the UN Agreement which created the ECCC].

¹³¹ Cambodia victims ‘demand justice’, Jazeera, Al, March 31, 2009 Google Scholar

¹³² Falby, Patrick Khmer Rouge Prisoner defends jail chief, April 9 2009, AFP Google Scholar (“A French researcher who survived detention by the Khmer Rouge told a court on Wednesday that the regime's prison chief was not a monster, but instead was a revolutionary on a “mission”.)

¹³³ International Criminal Law: A Conversation with ProfessorMartinez, Jenny S., The Stanford Lawyer, No. 74, 35 (2006)Google Scholar.

¹³⁴ See generally Dembour, , Marie-Benedicte, and Haslam, Emily “Silencing Hearings? Victim-Witnesses at War Crimes Trials” 15 EUR J INT'L L 151 (2004)Google Scholar.