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Complying with Complementarity? The Cambodian Implementation of the Rome Statute of the International Criminal Court

Published online by Cambridge University Press:  08 April 2014

Simon M. MEISENBERG
Simon M. MEISENBERG*
Affiliation:
Extraordinary Chambers in the Courts of Cambodia, [email protected]
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Abstract

Learning from past atrocities, Cambodia has taken positive steps to ensure that future international crimes may be adequately prosecuted through its ratification of the Statute of the International Criminal Court (ICC) in 2002. However, an effective accountability mechanism and deterrence for any future crimes requires more than simply joining the ICC. There is a growing consensus that Member States should adopt the ICC crimes of genocide, crimes against humanity, and war crimes as part of their domestic law, as the absence of legislation may result in an inability to prosecute under the principle of complementarity. Cambodia has followed this trend and enacted implementing legislation into its new 2009 Cambodian Criminal Code (CCC). Scrutinizing the enacted international crimes provisions in the CCC, it becomes apparent that some modifications and reform to the current Cambodian criminal statutes are necessary in order to comply with the complementarity principle in the ICC Statute.

Type
Articles
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015 , pp. 123 - 142
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

Legal Advisor, Extraordinary Chambers in the Courts of Cambodia (since 2011); formerly Legal Officer (2005–09) and Senior Legal Officer, Special Court for Sierra Leone (2009–11). The paper is based on a presentation given at “The 10th Anniversary of Entry into Force of the Rome Statute: To Fight Impunity and Prevention of Mass Crimes in the Future of Cambodia”, organized by ADHOC on 2 July 2012, Raffles Hotel, Phnom Penh. The author would like to thank Chea Sivhoang for language questions and translations from Khmer to English, and Matteo Crippa, Roger Phillips, and Matthew Cameron for comments on an earlier draft. All errors remain those of the author and all opinions expressed do not reflect the views of any organization the author was or is affiliated with.

References

1. KELLER, Lucy, “UNTAC in Cambodia—from Occupation, Civil War and Genocide to Peace” (2005) 9 Max Planck Yearbook of United Nations Law 127CrossRefGoogle Scholar; RAPP, A. and PHILIPP, C., “Conflicts Cambodia/Kampuchea”, in Rüdiger WOLFRUM, United Nations: Law, Policies and Practice, Vol. I (Berlin: Springer Verlag, 1995)Google Scholar, at 200ff.

2. 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, 6 June 2003, 2329 U.N.T.S. 117 (entered into force 29 April 2005); see also “Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea”, adopted by the National Assembly on 2 January 2001 and the Senate on 15 January 2001, promulgated by Kram No. NS/RKM/0801/12, 10 August 2001.

3. Bunleng, CHEUNG, Criminal Code, Khmer—English Translation (Edition Angkor, Phnom Penh, 2011)Google Scholar [CCC]. The Cambodian Criminal Code was enacted on 30 November 2009. All English references to the CCC are taken from this unofficial translation of Cheung Bunleng.

4. Ibid., art. 3 (Principle of legality) states: “Conduct may give rise to criminal conviction only if it constituted an offence at the time it occurred.”

5. Kaing Guek Eav, Judgment of 26 July 2010, Case File/Dossier No. 001/18-07-2007/ECCC/TC, online: ECCC 〈http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/20100726_Judgement_Case_001_ENG_PUBLIC.pdf〉, paras 28–34.

6. Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S 90 (entered into force 1 July 2002) [ICC Statute].

7. E.g. Germany, Act to Introduce the Code of Crimes Against International Law, 26 June 2002; Australia, International Criminal Court Act 2002, No. 41, 2002, and ICC (Consequential Amendments) Act 2002, No. 42, 2002; the Netherlands, International Crimes Act, 20 June 2002; Republic of South Africa, Implementation of the Rome Statute of the ICC Act 27, 2002; United Kingdom, ICC Act 2001.

8. International Criminal Court, “Cambodia” (March 2003)Google Scholar, online: ICC 〈http://www.icc-cpi.int/en_ menus/asp/states%20parties/asian%20states/Pages/cambodia.aspx〉.

9. ICC Statute, supra note 6, preamble, art. 1.

10. BENZIG, Markus, “The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight against Impunity” (2003) 7 Max Planck Yearbook of United Nations Law 591Google Scholar at 595; KLEFFNER, Jann K., “The Impact of Complementarity on National Implementation of Substantive International Criminal Law” (2003) 1 Journal of International Criminal Justice 86–113CrossRefGoogle Scholar at 87.

11. Benzig, , supra note 10 at 630Google Scholar; TERRACINO, Julio Bacio, “National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC” (2007) 5 Journal of International Criminal Justice 421CrossRefGoogle Scholar at 421.

12. YANG, Lijun, “On the Principle of Complementarity in the Rome Statute of the International Criminal Court” (2005) 5 Chinese Journal of International Law 121CrossRefGoogle Scholar at 122.

13. ICC Statute, supra note 6, art. 17(3).

14. On a more detailed discussion of the “inability” element, see Benzig, , supra note 10 at 613Google Scholar.

15. Luigi CONDORELLI, “La Cour pénale internationale: un pas géant (pourvu qu'il soit accompli …)” (1999) 103 Revue génerale de droit internationale public 7; DOHERTY, Katherine L. and MCCORMACK, Timothy L.H., “ ‘Complementarity’ as a Catalyst for Comprehensive Domestic Penal Legislation” (1999) 5 UC Davis Journal of International Law and Policy 147Google Scholar at 152; LATTANZI, Flavia, “The International Criminal Court and National Jurisdictions” in Mario POLITI and Giuseppe NESI, eds., The Rome Statute of the International Criminal Court—A Challenge to Impunity (Aldershot: Ashgate, 2001)Google Scholar, 177 at 181; Kleffner, , supra note 10 at 89Google Scholar.

16. Kleffner, , supra note 10 at 88Google Scholar; Benzig, , supra note 10 at 615Google Scholar.

17. Benzig, , supra note 10 at 615Google Scholar.

18. Supra note 7.

19. See CCP arts. 210 and 608.

20. Ibid., art. 9.

21. CCC, supra note 3, art. 12 (Meaning of territory of the Kingdom of Cambodia) states: “In criminal matters, Cambodian law is applicable to all offences committed in the territory of the Kingdom of Cambodia. The territory of the Kingdom of Cambodia includes its corresponding air and maritime spaces.”

22. Ibid., art. 13 (Place where the offence is committed) states: “An offence shall be deemed to have been committed in the territory of the Kingdom of Cambodia if one of the [elements] of the offence was committed in the territory of the Kingdom of Cambodia.”

23. Ibid., art. 19. The international crimes provisions are felonies under the CCC as they are punishable with a sentence above five years; see the distinction in CCC, supra note 3 arts. 46 and 47.

24. Ibid., art. 20 (Where the victim is a Cambodian) states: “In criminal matters, Cambodian law is applicable to any felony committed by a Cambodian or foreign national outside the territory of the Kingdom of Cambodia, if the victim is a Cambodian national at the time of the offence.”

25. CCC, supra note 3, art. 183 (Acts of genocide) states: “ ‘Genocide’ shall mean any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. killing members of the group;

2. causing serious bodily or mental harm to members of the group;

3. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. imposing forceful measures or voluntary means intended to prevent births within the group;

5. forcibly transferring children of the group to another group.”

26. (Emphasis added.) ICC Statute, supra note 6, art. 6(d): “For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: … Imposing measures intended to prevent births within the group.”

27. The ICTR considered forced birth control as relevant conduct under this provision, see The Prosecutor v. Jean-Paul Akayesu, Judgment of 2 September 1998, ICTR-96-4, International Criminal Tribunal for Rwanda, para. 507.

28. JESSBERGER, Florian, “The Definition and the Elements of the Crime of Genocide” in Paola GAETA, ed., The UN Genocide Convention—A Commentary (Oxford: Oxford University Press, 2009)Google Scholar, 87 at 102.

29. CCC, supra note 3, art. 188 (Crime Against Humanity) reads: “‘Crime against humanity’ shall mean any of the following acts when committed as part of a widespread or systematic attack against any civilian population:

1. murder;

2. extermination;

3. enslavement;

4. deportation or forced transfer of population;

5. imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international laws;

6. torture;

7. rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

8. persecution against an identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender grounds.

9. enforced disappearance of persons;

10. the crime of apartheid;

11. other inhuman acts intentionally causing great suffering, or serious injury to body.”

30. SCHABAS, William, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar at 118.

31. COTTIER, Michael, “Article 8(2)(b)” in Otto TRIFFTERER, ed., Commentary on the Rome Statute of the International Criminal Court (München: C.H. Beck Verlag, 2008)Google Scholar, para. 30.

32. CCC, supra note 3, art. 193 (War crimes) states: “Each of the acts prescribed below when committed against persons or properties protected by Geneva Convention of 12 August 1948 constitutes a war crime:

1. murder;

2. tortures or other inhumane treatment, including biological experiments;

3. wilfully causing great suffering, or serious injury to body or health;

4. extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

5. compelling a prisoner of war or a civilian to serve in the force of a hostile power;

6. depriving a prisoner of war or a civilian of the rights of a fair and regular trial;

7. unlawful deportation, transfer or confinement of a civilian;

8. taking of civilian hostage.”

33. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 1125 U.N.T.S. 3 (entered into force 7 December 1978) [Protocol I].

34. On the legality of confinement of other protected persons, see DÖRMANN, Knut, Elements of War Crimes under the Rome Statute of the ICC (Cambridge: Cambridge University Press, 2003) at 118–122Google Scholar.

35. Arts. 24, 25, 28, 29 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 (entered into force 21 October 1950); Art. 37 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85 (entered into force 21 October 1950); Art. 44 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 12 August 1949, 1125 U.N.T.S. 609 (entered into force 7 December 1978).

36. As mentioned above, unlike other states, Cambodia does not publish parliamentary consultations or official reasons for adopting legislation.

37. See art. 6 of the ECCC Law.

38. Kaing Guek Eav, supra note 5, paras. 417–19, 425–26, 468, and as to the composition of confined persons, see para. 141.

39. CCC, supra note 3, art. 194 (Other war crimes) states: “Any of the following acts are also war crimes when they are committed during international or non-international armed conflicts:

1. employing poisonous weapons or other weapons calculated to cause unnecessary suffering;

2. intentionally attacking or bombarding, by whatever means, undefended towns, villages, dwellings or buildings which are not military objectives;

3. intentionally attacking personnel or material involved in a humanitarian mission in accordance with the Charter of the United Nations;

4. intentionally starving civilians by depriving them of objects indispensable to their survival;

5. utilizing civilians to render certain buildings, areas of the territory or military forces immune from military operations;

6. intentionally destroying or damaging buildings dedicated to religion, charitable purposes, education, art, science, historic monuments, artistic works or scientific works;

7. widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct military advantage anticipated;

8. plunder of public or personal property.”

40. On the customary status of the crime, see the Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Judgment of 2 March 2009, Case No. SCSL-04-15-T, Special Court for Sierra Leone.

41. Ibid., at para. 231.

42. Dörmann, , supra note 34 at 346Google Scholar.

43. Ibid., at 227.

44. See art. 52(3) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 8 June 1977, 1125 U.N.T.S. 3 (entered into force 7 December 1978).

45. ICC Statute, supra note 6, art. 8(2)(b)(i) and (e)(i).

46. Ibid., art. 8(2)(b)(ii) and (e)(ii).

47. Ibid., art. 8(2)(b)(vii).

48. Ibid., art. 8(2)(b)(xii) and (e)(c).

49. Ibid., art. 8(2)(b)(xiv).

50. Ibid., art. 8(2)(b)(xix) and (xx).

51. Ibid., art. 8(2)(b)(xxii).

52. Ibid., art. 8(2)(b)(xxvi) and (e)(vii).

53. See art. 48 of the Constitution of the Kingdom of Cambodia: “The State shall protect the rights of children as stipulated in the Convention on Children, in particular, the right to life, education, protection during wartime, and from economic or sexual exploitation” (emphasis added).

54. ICC Statute, supra note 6, art. 8(2)(b) (xxii) and (e)(vi).

55. See Kaing Guek Eav, supra note 5, para. 366, stating that rape may constitute torture. Even though this holding was made with respect to crimes against humanity, this conclusion is equally applicable to the war crimes provisions.

56. CCC, supra note 3, art. 185 (Planning of genocide) states: “Participation in a group formed or in a conspiracy to plan genocide shall be punishable by imprisonment between twenty to thirty years.”

57. CCC, supra note 3, art. 494 (Existence of incitement) states:

For the enforcement of this Section, the incitement is punishable when it is committed: (1) by speech of any kind, made in a public place or meeting; (2) by writing or picture of any kind, either displayed or distributed to the public; (3) by any audiovisual communication to the public.

58. CCC, supra note 3, art. 496 (Incitement to discriminate) states:

The direct incitement, by one of the means defined in Article 494 (Existence of incitement) of this Code, to discriminate, to be malicious or violent against a person or a group of persons because of their membership of a particular ethnicity, nationality, race or religion, shall be punishable by imprisonment from one to three years and a fine from two million to six million Riels, where the incitement was ineffective.

59. Ibid.

60. CCC, supra note 3, art. 499 (Participation in a criminal association) states:

The participation in a group or a conspiracy which is formed: (1) to commit one or more felonies against the persons defined in Chapter 1 (Homicide) to Chapter 6 (Violations of personal liberty) in Title 2 (Offences against the Person) of Book 2 (Crime against Persons) of this code; (2) to commit one or more felonies against property defined in Book 3 of this Code; shall be punishable by imprisonment from two to five years and a fine from four million to ten million Riels.

Genocide, crimes against humanity, and war crimes are regulated in Book 2, Title 1.

61. See ICC Statute, supra note 6, art. 28.

62. See WERLE, Gerhard, Principles of International Criminal Law (Leiden: TMC Asser Press, 2005)Google Scholar, para. 370.

63. CCC, supra note 3, art. 31(3) (Absence of criminal responsibility by reason of mental disorder) provides: “A person who, at the time he or she committed an offence, was suffering from a mental disorder resulting from the consumption of alcohol, drugs or prohibited substances, shall still be criminal responsible.”

64. Ibid., art. 32 (Authorization by law or lawful authority) states:

The perpetrator, co-perpetrator, instigator, or accomplice of genocide, or of a crime against humanity, or a war crime shall not, under any circumstances, be excused from criminal responsibility on the ground that: (1) he or she committed an act prescribed, authorized or not prohibited by the law in force; (2) he or she acted by an order of a lawful authority.

65. Art. 80 of the Cambodian Constitution states:

The deputies shall enjoy parliamentary immunity. No assembly member shall be prosecuted, detained or arrested because of opinions expressed during the exercise of his (her) duties. The accusation, arrest, or detention of an assembly member shall be made only with the permission of the National Assembly or by the Standing Committee of the National Assembly between sessions, except in case of flagrante delicto. In that case, the competent authority shall immediately report to the National Assembly or to the Standing Committee for decision. The decision made by the Standing Committee of the National Assembly shall be submitted to the National Assembly at its next session for approval by a 2/3-majority vote of the assembly members. In any case, detention or prosecution of a deputy shall be suspended by a 3/4-majority vote of the National Assembly members.

66. Art. 104 of the Cambodian Constitution provides:

The Senators shall enjoy parliamentary immunity. No Senator can in any case be prosecuted, arrested, kept in police custody or detained because of his/her opinions expressed during the exercise of his/her functions. The prosecution against, the arrest, the police custody or the detention of a Senator is possible only when approved by the Senate or by the Standing Committee during the interval between sessions, except in flagrante delicto case. In this last case, the competent ministry must urgently report to the Senate or to the Standing Committee for decision. The decision of the Senate's Standing Committee must be submitted to the next session of the Senate for adoption by two-third majority of all the Senators. In all the aforementioned cases, the detention of, the prosecution against any Senator shall be suspended, if the Senate so decides by three-fourth majority of all the Senators.

67. Werle, supra note 62 at para. 189; CASSESE, Antonio, International Criminal Law (Oxford: Oxford University Press, 2003)Google Scholar at 315.

68. CCC, supra note 3, art. 149 (Effect of amnesty) states:

An amnesty within the meaning of Article 90(2)(4) of the Constitution of the Kingdom of Cambodia, shall expunge the relevant conviction. Penalties shall not be enforced. Ongoing enforcement of penalties, if any, shall cease. However, the State shall not refund any fines and court fees already paid.

69. Ibid., art. 147 (Effect of pardon) states: “Pardon within the meaning of Article 27 of the Constitution of the Kingdom of Cambodia shall exempt the offender from serving his or her sentence.”

70. Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan, Decision on Ieng Sary's Rule 89 Preliminary Objections (Ne bis in idem and Amnesty and Pardon), 3 November 2011, Case No. 002/19-09-2007/ECCC/TC, ECCC, para. 25.

71. See also ibid., at para. 26.

72. Ibid., at para. 55.

73. Ibid., at para. 54.

74. The Pre-Trial Chamber of the ECCC described the nature of the ECCC in the following terms: “[A] court of special and independent character within the Cambodian legal system … designed to stand apart from existing Cambodian courts and rule exclusively on a narrowly-defined group of defendants for specific crimes committed within a limited period”; see Kaing Guek Eav, Decision on Request for Release, Case No. 001/18-7-2007-ECCC-TC (15 June 2009), ECCC, para. 10.

75. Prosecutor v. Anto Furundzija, Judgment of 10 December 1998, IT-95-17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), para. 155; Prosecutor v. Morris Kallon & Ors, Decision of 13 March 2004, [2004] S.C.S.L. 4, paras. 66–74; see also Prosecutor v. Radovan Karadžić, Decision on Karadžić Appeal of the Trial Chamber's Decision on Alleged Holbrooke Agreement, Decision of 12 October 2009, IT-95-5/18-AR73.4, ICTY, para. 52, stating: “Individuals accused of such crimes can have no legitimate expectation of immunity from prosecution.”

76. General Comment No.20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), Human Rights Committee, 44th Session, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994), para. 15 (regarding the crime of torture); Chumbipuma Aguirre et al. v. Peru (Barrios Altos Case), Judgment of 14 March 2001, [2001] IACHR 13 at 27.

77. See generally WYNGAERT, Christine van den and ONGENA, Tom, “Ne bis in idem Principle, Including the Issue of Amnesty” in Antonio CASSESE et al., eds., The Rome Statute of the International Criminal Law: A Commentary (Oxford: Oxford University Press, 2002) at 724–726Google Scholar.

78. CCC, supra note 3, art. 143 (Non-applicability of statute of limitations for certain crimes) provides: “Penalties imposed for genocide, crimes against humanity and war crimes shall not be subject to any statute of limitations.” Despite this provision, Cambodia has not yet ratified the 1968 United Nations Conventions on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

79. CCP art. 9 (Crimes without statute of limitations) states: “Crimes against humanity, genocide and war crimes have no statute of limitations.”

80. See supra note 4.

81. For example, art. 15(1) of the ICCPR. The Kingdom of Cambodia ratified the ICCPR on 26 May 1992, see United Nations Treaty Collection, “Status of International Covenant on Civil and Political Rights” (October 2013), online: UNTC 〈http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY &mtdsg_ no=IV-4&chapter =4&lang=en.〉.

82. Constitutional Council of Cambodia, Decision No. 092/003/2007 (10 July 2007), online: 〈www.ccc.gov.kh/english/dec/2007/dec_003.html〉.

83. See also Bora, MEAS, “International Human Rights Law in Cambodia” (2010) 1 Cambodian Yearbook of Comparative Legal Studies 129Google Scholar at 145, pointing out persuasive arguments that art. 31 of the Constitution does not provide for a direct application of treaties.

84. See art. 38 of the Constitution of the Kingdom of Cambodia, stating: “The prosecution, arrest, or detention of any person shall not be done except in accordance with the law.”