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Crimes Against Humanity at the Extraordinary Chambers in the Courts of Cambodia: Is a Connection with Armed Conflict Required?

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Crimes Against Humanity at the Extraordinary Chambers in the Courts of Cambodia: Is a Connection with Armed Conflict Required? ARTICLES CRIMES AGAINST HUMANITY AT THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA: IS A CONNECTION WITH ARMED CONFLICT REQUIRED? Stuart Ford* © 2006 Open Society Institute I. A POTENTIAL PROBLEM OF LITIGATING CRIMES AGAINST HUMANITY AT THE EXTRAORDINARY CHAMBERS ............... 127 II. HISTORY OF THE DEVELOPMENT OF CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW ......................... 129 A. BEFORE WORLD WAR I-THE ORIGINS OF THE TERM "LAWS OF HUMANITY"............... 131 B. WORLD WAR I-THE FIRST SUGGESTION OF CRIMINAL PUNISHMENT FOR VIOLATING THE "LAWS OF HUMANITY"........................... 135 C. WORLD WAR II AND THE INTERNATIONAL MILITARY TRIBUNAL (IMT) ................... 138 D. THE OTHER WORLD WAR II WAR CRIMES TRIBUNALS ...................................... 145 1. The Tokyo War Crimes Tribunals .......... 145 * Stuart Ford, J.D., LL.M. The author wishes to thank the Open Society Insti- tute and Open Society Justice Initiative for their funding of this research. In particu- lar, Dr. Kelly Askin, Tracey Gurd, and Heather Ryan provided very helpful advice and comments on various drafts. The author is an Assistant Prosecutor at the Ex- traordinary Chambers in the Courts of Cambodia, but this article was completed before he began work there. It does not represent the views or opinions of the Office of the Co-Prosecutors or any other part of the Extraordinary Chambers. PACIFIC BASIN LAW JOURNAL [Vol. 24:125 2. Trials of "Lesser" War Criminals in E urope .................................... 146 E. THE AFTERMATH OF WORLD WAR II- CODIFYING THE LEGACY OF NUREMBURG ..... 148 F. THE GENOCIDE CONVENTION OF 1948 ......... 152 G. THE 1950's - THE INTERNATIONAL LAW COMMISSION'S WORK ON THE DRAFT CODE OF OFFENSES AGAINST THE PEACE AND SECURITY OF M ANKIND ..................................... 153 H. THE 1960S AND 1970s - ADOLF EICHMANN'S TRIAL, THE CONVENTIONS ON STATUTES OF LIMITATIONS AND THE APARTHEID CONVENTION ..................................... 158 1. The Eichmann Trial........................ 158 2. The 1968 Convention on the Non- Applicability of Statutes of Limitations to War Crimes and Crimes Against H um anity .................................. 159 3. The 1974 European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes ..................................... 167 4. The Apartheid Convention ................. 168 I. THE 1980'S AND 1990's - THE ILC, THE AD HOC CRIMINAL TRIBUNALS, AND THE INTERNATIONAL CRIMINAL COURT ............ 169 1. The ILC Once Again Takes Up Work on a Draft Code of Offences Against the Peace and Security of Mankind ................... 169 2. The Responses of Member States to the ILC's Work ................................ 172 3. The InternationalCriminal Tribunalfor the Former Yugoslavia ......................... 173 4. The International Criminal Court .......... 177 5. The International Criminal Tribunalfor R wanda .................................... 178 III. THE STATUS OF CRIMES AGAINST HUMANITY IN 1975 ...... ................ 180 A. Customary International Law .............. 181 B. Crimes Against Humanity in International L aw ............................................ 182 C. Crimes Against Humanity in the Domestic Law of States .................................. 184 1. G ermany ................................... 184 2. Israel....................................... 185 3. France ..................................... 186 2007] CRIMES AGAINST HUMANITY 4. United States ............................... 186 5. Canada .................................... 186 6. A ustralia ................................... 187 7. United Kingdom ........................... 187 8. Ireland ..................................... 188 9. Belgium .................................... 189 10. The Netherlands ........................... 189 11. Nigeria, Guinea, Kenya and Rwanda ....... 190 12. O thers ..................................... 191 IV. THE PRINCIPLE OF LEGALITY ............... 193 V. CONCLUSION ..................................... 198 I. A POTENTIAL PROBLEM OF LITIGATING CRIMES AGAINST HUMANITY AT THE EXTRAORDINARY CHAMBERS The Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (known hereafter as the "Extraordinary Chambers" or the "EC"),1 is a unique experiment. It is a mixed tribunal containing elements of both Cambodian and interna- tional law.2 The tribunal will prosecute "senior leaders" and "those who were most responsible" for the atrocities that oc- curred between 1975 and 1979, when Cambodia was ruled by the Communist Party of Kampuchea. 3 While mixed national/inter- national tribunals have been created before, most notably in Si- erra Leone, none has tried to render justice for crimes that were committed so far in the past. The gap of three decades between the crimes and the court proceedings has created a number of significant obstacles for the Extraordinary Chambers. Some are obvious, like the difficulty in finding physical evidence and witnesses. Some obstacles are less 1. It is also sometimes informally called the "Khmer Rouge Tribunal," but this name is disfavored. 2. For instance, the substantive law will be a combination of Cambodian crimi- nal law (including homicide, torture and religious persecution) and crimes under international law (including genocide, war crimes and crimes against humanity). See Law on the Establishment of the Extraordinary Chambers in the Courts of Cambo- dia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, arts. 3-6 [hereinafter Extraordinary Chambers Law]. Procedural rules at the EC are also a mix of national and international rules. The Extraordinary Chambers uses Cambodian procedural law, but "shall" exercise its jurisdiction "in accordance with international standards of justice, fairness and due process of law" as described in Articles 14 and 15 of the International Covenant on Civil and Politi- cal Rights. Id. art. 33. To meet this mandate the ECCC judges have passed a special set of "Internal Rules" that will apply to cases before the ECCC. The Internal Rules are based on Cambodian criminal procedure but incorporate minimum international standards of justice, fairness and due process. 3. See Extraordinary Chambers Law, art. 2. PACIFIC BASIN LAW JOURNAL [Vol. 24:125 obvious, like the potential problem of the rapid development of international criminal law, particularly in the law of crimes against humanity, since the end of the Cold War. The crimes within the jurisdiction of the EC occurred prior to this recent period of development, and there is a possibility that the EC's definition of crimes against humanity cannot be applied without violating the principle of legality. Crimes against humanity has been a crime under interna- tional law since 1946, but unlike genocide or "grave breaches" of the Geneva Conventions it was not the subject of an interna- tional convention that codified the elements of a crime against humanity. As a result of the lack of a widely accepted definition, different courts defined the crime differently. The definition that will be used in the Extraordinary Chambers is very similar to that used in Article 3 of the Statute of the International Criminal Tri- bunal for Rwanda (ICTR).4 However, this articulation differs from that used by the Yugoslav war crimes tribunal, as well as that of the Nuremberg Charter, the Tokyo Charter, Control Council Order No. 10 and the Rome Statute of the International Criminal Court. In 1975, crimes against humanity did exist as an explicit crime, but the elements of that crime were defined by customary international law, not by a treaty. This creates a potential problem in determining what the el- ements of a crime against humanity were at the time the crimes within the jurisdiction of the EC were committed. The principle of legality, which prohibits the retroactive application of criminal law, is a fundamental principle of law. The purpose of the princi- ple of legality is to ensure that no one is held criminally liable for an act that the accused could not predict would be a crime at the time the act was committed. Foreseeability is an important com- ponent of the principle of legality, and an accused can be guilty of a crime even if the law was unsettled at the time the act was committed, as long as criminal liability was foreseeable. If the definition of crimes against humanity that is contained in the Statute of the Extraordinary Chambers was unforeseeable in 1975, then the EC may be limited to the 1975 definition. Several writers have noted the existence of this potential problem with the subject matter jurisdiction of the court and offered opinions 4. Compare Extraordinary Chambers Law, art. 5 with Statute of the Interna- tional Criminal Tribunal of Rwanda, S.C. Res. 955, art. 3, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR]. The Extraordinary Chamber's definition of crimes against humanity is much closer to the one in the ICTR than it is to the definitions that appear in the International Criminal Tribunal for Yugoslavia (ICTY) or the International Criminal Court (ICC). The ICC, ICTY, and ICTR are dis- cussed in more detail supra in Sections II(I)(3)-II(I)(5). 2007] CRIMES AGAINST HUMANITY on whether it will affect the court. 5 However, as far as the author is aware, none has undertaken a full analysis of it. The question of whether crimes against humanity can only take place in connection with an armed conflict is the most likely
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