The Elgar companion to the extraordinary chambers in the Courts of Cambodia

433 Pages·2018·1.855 MB·English

by  Jørgensen, Nina H. B.

THE ELGAR COMPANION TO THE
EXTRAORDINARY CHAMBERS IN THE
COURTS OF CAMBODIA
ELGAR COMPANIONS TO INTERNATIONAL COURTSAND
TRIBUNALS
SeriesEditor:WilliamA.Schabas,MiddlesexUniversity,London,UK
TheElgarCompanionstoInternationalCourtsandTribunalsseriescomprises
originalreferenceworksdesignedforusebybothspecialistsinthefieldandmore
casualreaders.Titlesintheseriescombinesubstance,procedure,descriptive
backgrounddetailandhistoricalcontext.Precisescopeandcoveragevariesbetween
volumesandmayincludesectionsonhistory,jurisprudence,procedure,theroleof
thecourtinthewiderworld,andbiographiesofkeyfigureswithinthedevelopment
ofthecourt.Extractsandmaterialsarealsoincludedwhereappropriate.
Titlesintheseriesinclude:
TheElgarCompaniontotheInternationalCourtofJustice
RobertKolb
TheElgarCompaniontotheInternationalCriminalTribunalforRwanda
EditedbyAnne-MariedeBrouwerandAletteSmeulers
TheElgarCompaniontotheExtraordinaryChambersintheCourtsofCambodia
NinaH.B.Jørgensen
The Elgar Companion to the
Extraordinary Chambers in
the Courts of Cambodia
Nina H.B. Jørgensen
Faculty of Law, The Chinese University of Hong Kong
ELGAR COMPANIONS TO INTERNATIONAL COURTS AND
TRIBUNALS
Cheltenham, UK + Northampton, MA, USA
© Nina H.B. Jørgensen 2018
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic,
mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL502JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2017955175
This book is available electronically in the
Law subject collection
DOI 10.4337/9781784718077
ISBN 978 1 78471 806 0 (cased)
ISBN 978 1 78471 807 7 (eBook)
Typeset by Columns Design XML Ltd, Reading
For Lily, Bear and Pani
‘La verité des choses se cachait peut-être ailleurs …’
Soth Polin, L’anarchiste

Contents
Preface viii
List of acronyms x
1 Introduction 1
2 Legality 32
3 Structure 78
4 Procedure 109
5 Cases 136
6 Proceedings 161
7 Crimes 205
8 Liability 267
9 Sentencing 328
10 Victims 341
11 Legitimacy 359
12 Legacy 385
Index 405
vii
Preface
The world has witnessed many atrocities since the followers of the
Communist Party of Kampuchea, better known as the Khmer Rouge,
marched into Phnom Penh on 17 April 1975 and unleashed a regime of
terror of more than three and a half years on the Cambodian people in
which an estimated quarter of the population perished. However, the fate
that befell this small South-East Asian nation continues to grip and
challenge the imagination. Perhaps it is the notion of the State turning on
its own people on such an unprecedented scale that is so difficult to
fathom. Perhaps it is the tranquil, smiling populace, forging a space in
the modern era against the proud backdrop of the ancient Angkorian
temples that makes such a dark recent history so improbable. Or perhaps
it is the scales of justice, finally weighing in more than 30 years after the
crimes that have refocused global attention.
When the film, The Killing Fields, was released on video it was made
compulsory viewing for all pupils at my middle school in Tokyo. Many
of us were not yet teenagers. I recall that a pupil received a heavy
scolding for throwing away a half-eaten apple at the entrance to the
library where the film was to be screened. Before understanding the
context of the reprimand—as the film began and images of scared and
starving children were beamed into the safe haven of the library—I
reflected on its fairness. Food was prohibited in the library and had the
pupil gone to put the remains of the apple in her locker she would have
been told off for being late. In retrospect, the incident appeared as an
early introduction to the complexities of justice.And the background was
the revelation to a child’s eyes of the Cambodian ‘genocide’.
Little did I know that many years later I would have the opportunity to
workfortheExtraordinaryChambersintheCourtsofCambodia(ECCC)
as the first employee of the United Nations Assistance to the Khmer
Rouge Trials in the Pre-Trial Chamber and then to serve as an adviser to
the ECCC Supreme Court Chamber. When asked by Edward Elgar
Publishers if I would be interested in writing this book as a contribution
to their series of Companions to International Courts and Tribunals, I
felt honoured to take on the task. This book aims to serve as an
introductiontotheECCCwhilealsoexploringinmoredepthsomeofthe
Court’s practical and jurisprudential challenges and outcomes.
viii
Preface ix
I wish to thank friends and colleagues for their inspiration in the
optimistic start-up phase of the ECCC, especially the original Pre-Trial
Chamber team: Judge Prak Kimsan, Judge Katinka Lahuis, Judge Rowan
Downing, Judge Ney Thol, Judge Huot Vuthy, Judge Pen Pichsaly,
Anne-Marie Burns, Dirk Jan Laman, Sar Chanrath, Keo Vanny, Chuon
Sokreasey, Chuon Sopagna, Lee Kanthoul and the many excellent
interns. I also wish to thank JudgeAgnieszka Klonowiecka-Milart for her
support during the second phase of my involvement with the ECCC.
AnnHoiYeeLeedidatremendousjobasastudentassistantduringthe
final stages of preparation of the manuscript, for which I am very
grateful. My thanks also to Crystal Yeung, Polina Malkova and Daley
Birkett for research assistance and to the Faculty of Law at the Chinese
University of Hong Kong for the facilities to carry out this work.
Finally, thanks are due to Laura Mann and the team at Edward Elgar
for their enthusiasm, patience, attentiveness and efficiency at all stages of
the process.