The Extraordinary Chambers in the Courts of Cambodia

Thirty years after the Khmer Rouge regime, the ECCC, also known as the Khmer Rouge Tribunal, began its work on July 1, 2006. Its jurisdiction covers senior leaders and those most responsible for crimes and serious violations committed during the period from April 17, 1975, to January 6, 1979, including genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, and other crimes.[1]

Developed as a hybrid court within the Cambodian Court System, the ECCC is a mix of Cambodian and international judges with a majority of Cambodians. The Court includes three Chambers: the Pre-Trial Chamber (five judges), the Trial Chamber (five judges), and the Supreme Court Chamber (seven judges). The Supreme Court Chamber’s rulings are final. The ECCC applies both Cambodian and international law. The ECCC’s judicial offices are led by two Co-Prosecutors and two Co-Investigating Judges, each pair consisting of one Cambodian national and one international.[2] Following the hybrid pattern, the Office of Administration and major sections such as Budget and Finance, Personnel, Security and Safety, and Public Affairs also have Cambodian directors and international deputies.

The ECCC is modeled after the Cambodian national courts and so operates according to a civil law system.[3]  Co-Prosecutors first conduct a preliminary investigation and send the Introductory Submission, comprising factual allegations of crimes and suspects, to the Co-Investigating Judges. The Co-Investigating Judges examine only the factual allegations made in the Introductory Submission unless the Co-Prosecutors submit additional allegations through supplementary submissions. The Co-Investigating Judges have the power to arrest and charge suspects, if deemed necessary. Following notification that the investigation is closed, the case file is returned to the Co-Prosecutors, who then file the Final Submission requesting indictment for specific crimes. The Co-Investigating Judges’ Closing Order that either indicts the suspects or dismisses the case follows the Final Submission. The Co-Prosecutors can appeal the Closing Order, if deemed necessary. [4]

The ECCC system also includes other sections: the Defence Support Section (DSS), the Victims Support Section (VSS), and the Witness Expert Support Unit (WESU). Once a suspect has been indicted and brought into custody, the DSS’s main role is to ensure he or she has effective legal representation. In doing so, it provides a list of lawyers to the defendants, gives legal and administrative support to chosen lawyers, and pays legal fees. The Defence Support Section also acts as a voice for the defense, and liaises with non-governmental organizations (NGOs).[5]

In addition to being called as witnesses, victims can participate in the Court’s proceedings as complainants or as Civil Parties by submitting a Victim Information Form. The Victims Support Section (formerly Victims Unit) is the focal point for victims wishing to participate in the ECCC’s proceedings. It acts as the intermediary by receiving and processing all Victim Information Forms and transmitting them to the appropriate office. The Co-Prosecutors are responsible for considering the complaints, whereas the Co-Investigating Judges or the Trial Chamber, as appropriate, assesses Civil Party applications.

Any person who witnessed, has knowledge of, or was a victim of crimes covered within the jurisdiction of the ECCC can file as a complainant. Complaints can be broad and provide information about any alleged criminal act within the jurisdiction of the ECCC. The Co-Prosecutors can commence an investigation based on a complaint or other information they have gathered. Then complainants or anyone else with information that can prove guilt or innocence can be brought as witnesses. Once a person has been designated as a witness, the Witness Expert Support Unit is responsible for coordinating protection matters at all stages of the proceedings as well as providing support services to protect witnesses from emotional and psychological stress.

To join a case as a Civil Party, a person must have suffered harm as a result of crimes within the ECCC’s jurisdiction, and under investigation by the Co-Investigating Judges. In practice, this means that the applicant, to be accepted as a Civil Party, must describe crimes in the Victim Information Form that have already been alleged in the introductory or any supplementary submission.[6] Civil Parties are considered a party in the same way as the prosecution and defense and thus have the right to participate in all parts of the proceedings.[7] Civil Parties have the right to legal representation, either by a Cambodian lawyer or by an international lawyer in collaboration with a Cambodian lawyer, and can also apply through various victim associations. Only Civil Parties have the right to seek reparations.

Within the Court, the ECCC Public Affairs Section (PAS) and the Victims Support Section (VSS) were set up to be the main interfaces between the Court and external audiences. PAS is part of the Office of Administration, and its responsibilities include media relations, outreach and public information, and recording of proceedings. Its objective is “to provide as much information as possible on the activity of the Court,” so as to build public confidence in the process.[8] VSS, for its part, serves as the focal point for people who wish to participate in the ECCC.

[1] Genocide is defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; crimes against humanity are defined in the 1998 Rome Statute of the International Criminal Court, and grave breaches of the 1949 Geneva Conventions and other crimes are defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers promulgated on 10 August 2001. The information in this paragraph is drawn from United Nations Assistance to the Khmer Rouge Trials (UNAKRT) website, available at http://www.unakrt-online.org/01_home.htm

[2] The information in this paragraph is drawn from UNAKRT website, available at http://www.unakrt-online.org/02_court.htm.

[3] Cambodia’s legal system, nonexistent during the Khmer Rouge regime, is based on the French model of “civil law.” Rooted in a “culture of impunity” and patronage, the major cited problems of the legal system and the judiciary are corruption and absence of independence.  The Ministry of Justice often provides instructions to judges on how to interpret the laws; the Executive pressures the court to overturn their rulings;  selection, appointment, and promotion of judges are determined by the executive or legislative and political parties;  and judges are often closely associated with the ruling Party  making it difficult to separate Executive and Judiciary powers. The absence of rules on conflict of interest, on requirements to disclose assets or gifts, and on protection of whistleblowers heightens the possibilities of corruption.  In 2010, the Cambodian national assembly adopted the long-awaited Anti-Corruption Law. However, by the end of the year 2010, the Anti-Corruption Unit established under the Anti-Corruption Law had not yet taken action against alleged perpetrators and was not fully operational.  In addition, the capacity of the judicial system is limited.  In 2007, Cambodia had only 142 judges, 72 prosecutors, and 601 court clerks for 23 courts including the Appeals and Supreme Courts. Officers of the court are poorly trained. The budget for the courts is only a small fraction of the national budget, leading to understaffing and a lack of space and basic necessities. In 2003, judicial remuneration was the lowest in Southeast Asia. The legal system was the second most bureaucratically embedded judiciary in the region. Peter Leuprecht, “Continuing Patterns of Impunity in Cambodia” (Phnom Penh, Cambodia: United Nations Cambodia Office of the High Commissioner for Human Rights, October 2005), 26; The Court Watch Project, “Annual Report” (Phnom Penh: Center for Social Development, March 2008), 6; “Consideration of reports submitted by States parties under article 19 of the Convention. Concluding observations of the Committee against Torture. Cambodia” CAT/C/KHM/CO/2, (New York: United Nations, 20 January 2011)

[4] For more details on roles and procedures, see all versions of the Internal Rules, available at http://www.eccc.gov.kh/en/document/legal/internal-rules

[5] The information on the Defense Support Section is drawn from UNAKRT website, available at http://www.unakrt-online.org/07_defencesupport.htm.

[6] This is an important point as the initial and supplementary submissions are confidential. For information regarding the application process, visit the website of the Victim Support Section, Cambodia: Extraordinary Chambers in the Courts of Cambodia, available at http://www.eccc.gov.kh/en/victims-support; see also, “Victim Participation, Practice Direction 02/2007/Rev.1,” Cambodia: Extraordinary Chambers in the Courts of Cambodia, available at:

 http://www.eccc.gov.kh/sites/default/files/legal-documents/PD_Victims_Pa...

[7] For more details on Civil Party role and participation in the criminal proceedings, see “Internal Rules (rev.7) , Rule 23”, (Cambodia: The Extraordinary Chambers in the Courts of Cambodia, 23 February 2011)

[8] See http://www.eccc.gov.kh/en/office-of-administration/public-affairs