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International Criminal Law a Discussion Guide for the Extraordinary Chambers in the Courts of Cambodia

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International Criminal Law a Discussion Guide for the Extraordinary Chambers in the Courts of Cambodia INTERNATIONAL CRIMINAL LAW A DISCUSSION GUIDE FOR THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA WAR CRIMES RESEARCH OFFICE 2nd Edition December 2007 Acknowledgments Contributing authors and editors of this Guide include War Crimes Research Office (WCRO) Director Susana SáCouto, WCRO Assistant Director Katherine Cleary, former WCRO Assistant Director Anne Heindel, former WCRO Director John Cerone, Washington College of Law (WCL) Professor Diane Orentlicher and WCL Professor Robert Goldman. The following WCL students and graduates also contributed to its production: Ewen Allison, Katrina Anderson, Katharine Brown, Agustina Del Campo, Tejal Jesrani, Robert Kahn, Chante Lasco, Solomon Shinerock and Claire Trickler- McNulty. Mann Sovanna oversaw translation of the Khmer edition. We are grateful for the generous support of the Open Society Justice Initiative and the Open Society Burma Project/Southeast Asia Initiative, without which this project would not have been possible. About the War Crimes Research Office The core mandate of the War Crimes Research Office is to promote the development and enforcement of international criminal and humanitarian law, primarily through the provision of specialized legal assistance to international criminal courts and tribunals. The Office was established by the Washington College of Law in 1995 in response to a request for assistance from the Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), established by the United Nations Security Council in 1993 and 1994 respectively. Since then, several new internationalized or “hybrid” war crimes tribunals—comprising both international and national personnel and applying a blend of domestic and international law—have been established under the auspices or with the support of the United Nations, each raising novel legal issues. This, in turn, has generated growing demands for the expert assistance of the WCRO. As a result, in addition to the ICTY and ICTR, the WCRO has provided in-depth research support to the Special Panels for Serious Crimes in East Timor (Special Panels), the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The WCRO has also provided similar assistance to the International Criminal Court (ICC). COVER PHOTOGRAPHS (from left) The administrative offices of the Extraordinary Chambers in the Courts of Cambodia Fishing village in Cambodia The Extraordinary Chambers court building in Phnom Penh All photographs courtesy Susana SáCouto INTERNATIONAL CRIMINAL LAW: A DISCUSSION GUIDE FOR THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA WAR CRIMES RESEARCH OFFICE AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW DECEMBER 2007 Copyright © December 2007 by the War Crimes Research Office American University Washington College of Law All rights reserved Printed in the United States of America CONTENTS I. Introduction to International Criminal Law...................................................................1 A. Public International Law..........................................................................................1 B. The Evolution of International Criminal Law .........................................................1 C. The Establishment & Subject Matter Jurisdiction of the Extraordinary Chambers.2 II. War Crimes Generally ......................................................................................................5 A. The Regulation of Armed Conflict under International Law...................................5 B. The Evolution of IHL...............................................................................................5 C. Violations of IHL Amounting to War Crimes under International Law .................9 III. Destruction of Cultural Property During an Armed Conflict Pursuant to the 1954 Hague Convention for Protection of Cultural Property ..............................................11 A. Application of Convention.....................................................................................11 B. Definition of Cultural Property..............................................................................12 C. Conduct that May Be Subject to Prosecution ........................................................13 1. Theft, Pillage, Misappropriation, and Acts of Vandalism .........................14 2. Reprisals.....................................................................................................16 3. Acts of Hostility.........................................................................................18 4. Use Likely to Expose Property to Destruction or Damage........................21 D. Absence of Military Necessity...............................................................................22 1. Definition of Military Necessity ................................................................22 a. Acts of Hostility...................................................................................23 b. Use Likely to Expose Property to Destruction or Damage..................25 2. Authority to Invoke Military Necessity .....................................................25 3. Obligation to Provide Warning..................................................................26 E. Mens Rea................................................................................................................26 F. Conclusion .............................................................................................................28 IV. Crimes Against Humanity...............................................................................................29 A. Contextual Elements of Crimes of Against Humanity ..........................................29 1. Widespread or Systematic Attack..............................................................30 2. Directed Against Any Civilian Population ................................................32 3. Mens Rea....................................................................................................32 4. Discrimination Requirement......................................................................33 5. Nexus between the Act and the Attack......................................................34 6. No Armed Conflict Requirement...............................................................35 B. Enumerated Acts....................................................................................................35 V. Genocide............................................................................................................................36 A. Introduction to Genocide .......................................................................................36 B. Distinctive Features of the Definition....................................................................36 C. Enumerated Acts....................................................................................................37 1. Killing Members of the Group...................................................................37 2. Causing Serious Bodily or Mental Harm to Members of the Group .........38 3. Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part.........................39 4. Imposing Measures Intended to Prevent Births Within the Group............39 5. Forcibly Transferring Children of the Group to Another Group ...............39 D. The Specific Intent Requirement ...........................................................................39 1. “In Whole or in Part” .................................................................................40 2. Role of the Individual Perpetrator..............................................................40 3. Genocide v. Forced Expulsion...................................................................41 4. Modes of Participation...............................................................................41 5. Comparison with the Rome Statute ...........................................................42 VI. Crimes Against Internationally Protected Persons Pursuant to the Vienna Convention of 1961 on Diplomatic Relations ................................................................43 A. Relationship of the 1961 Vienna Convention to the 1973 Convention for the Prevention and Punishment of Crimes Against Internationally Protected Persons ...................................................................................................................43 B. Definition of Internationally Protected Persons.....................................................44 C. Conduct that May Be Subject to Prosecution ........................................................46 1. Violating the Inviolability of Internationally Protected Persons ...............46 2. Violating the Inviolability of the Premises of the Mission and the Private Residence of a Diplomatic Agent ..............................................................48 D. Mens Rea................................................................................................................49 VII. Crimes of Sexual Violence...............................................................................................50 A. Sexual Violence As a Grave Breach of the Geneva Conventions .........................50 1. Grave Breaches Violations ........................................................................50 2. Sexual Violence As the Grave Breach of Torture .....................................52 a.
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