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The long road towards the creation of a specific code of procedure for international criminal courts

Written By vibykhmer on Wednesday, January 21, 2009 | 4:12 AM

Kambol (Cambodia, Phnom Penh). 11/11/2008. Mock trial organised by the ECCC Defence Support Section (DSS) for Law students (Photo: John Vink/ Magnum)

By Stéphanie Gée
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A man called Jean-Jacques Gandini, an associate professor in French Literature, found himself standing before the Khmer Rouge Tribunal on November 26th last year, and was asked to answer for his verbal assault of public officials in the course of their duty...
A much incongruous trial, held in premises intended for the hearings of senior leaders and criminals of Pol Pot's regime. The mock trial, performed by lawyers from the Montpellier Bar Human Rights Institute (in the South of France) was used as a test-trial, which turned out to be successful, to check the functionality of courtroom technical equipment but most importantly, to give an example of the French legal system, based on Romano-Germanic Law (Civil Law), but also of the Cambodian system which prevails within the Extraordinary Chambers in the Courts of Cambodia (ECCC), right beside International Law, elaborated on the basis of the Anglo-Saxon system (Common Law). Two legal systems, a single court... quite a headache for whoever deals with the mix.

A mock trial meant to throw light on many an issue

The Gandini case is based on a real trial, conducted under the principles of Criminal Law, and was examined by the Montpellier Criminal Chamber a few years ago, in which the Defence lawyer was actually François Roux, the French co-Lawyer for Duch, the former director of the S-21 torture centre, first on the list of the Khmer Rouge trials before the ECCC. However, the rules of French Law for the case procedure were slightly bent - and authorised - for the occasion so as to add to the impact of the trial within the ECCC: a “protected” witness was thus added, and his/her identity was concealed and protected. The French lawyers, who are none other than Francois Roux's colleagues from the same Bar, happily stood in the shoes of the different parties present at the trial.

The case: Events happened in the defendant's hometown, in the evening - to justify his intervention as the police proceeded to what he thought was an unfairly tough way of taking people in for questioning, a professor, speaking with composure and poise, pleads the state of lawful rebellion on the part of a citizen. He denies the charges pressed against him by three policemen, alleging he hurled insults at them. The defendant is discharged. In a matter of seconds, the “actors” left their part and went back to sit among the audience, mainly composed of Cambodian Law students and ECCC personnel. After the practical demonstration, the debate was opened. The aim, as explained, is not to “give a lesson” but to “take part in a common reflection”: how can different legal systems possibly work together?” Between Civil and Common Law, “the one is just as good as the other”, and the ECCC, basing its fundamental system on both, must therefore “invent something together”.

"See what works best"

The initiative was launched by the ECCC Defence Support Section (DSS), led by its acting head Richard Rogers. The hybrid court, established in Phnom Penh, has now been operating since 2006 but the union of the two legal systems still raises questions on both sides.

“The new Criminal Procedure Code of Cambodia (CPC) came into force in the country during the summer 2007 and is based on the French Penal Code. This gave rise to the idea of a mock trial organised along the lines of Civil Law”, Richard Rogers explains, pointing out that several elements of International Law, like the protection of witnesses, will be added to Civil Law in the ECCC. For him, “there is no fight” between those guided by Civil Law principles and those rather based on the Common Law system, but just a group of people “coming from different backgrounds, who think together to see what works best for serious cases coming under the responsibility of an International Criminal Court, within Cambodian context”.

Combining systems with a view to reduce trial length

“Many of the Common Law jurists who came here do not know the Civil Law system. Some see it positively while others approach it with more stiffness. This is why we thought about holding a criminal trial along the lines of Civil Law”, François Roux says. “There are Codes, rules, which allow everyone to express themselves according to different Common Law procedures but which also tend to reach the same result in the end, i.e. the manifestation of truth - this is what we are seeking - and therefore of justice. I still fundamentally believe that differences are not that major...”

The French co-Lawyer for Duch reckons that “International Criminal justice deserves trials to be held “within a reasonable amount of time”. “Here, we have the opportunity to test a system other than what is followed by other International Criminal Courts, so let's test it! In the end, we will obviously see whether it is better, not better, or worse! But if we notice that with that adaptation of both systems, we really do improve the length of these trials, then I think everyone will come off better.” The hard challenge, he continues, lies in “the way that we, today, can build up a new international Criminal Law system to allow trials to be held within reasonable periods of time, and trials which civil parties will attend and take part in, trials in which the defendant – and this is my wish here – will always be allowed to speak last”.

Does Cambodian procedure have to have the last word?

In the Preamble to the Internal Rules , the ECCC indeed explain that the purpose of the document is “to consolidate applicable Cambodian procedure for proceedings before the ECCC and […] to adopt additional rules where these existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application, or if there is a question regarding their consistency with international standards”. However, in practice, this calls for several interpretations. On many occasions, during Pre-Trial Chamber hearings, parties disagreed on the question as to whether the court should be guided by Cambodian procedure or rather refer to the ECCC Internal Rules.

Thus, on February 25th 2008, the Defence Team for Nuon Chea appealed against the Order refusing the Request for Annulment by the Office of the co-Investigating Judges (OCIJ), claiming that Cambodian procedure, i.e. the Criminal Procedure Code of Cambodia (CPC) had priority in this case. Co-Lawyers for the civil parties then decided to deal with the issue by supporting, in form rather than substance, the argument of the Defence. They called the pre-Trial Chamber to reconsider its decision dated August 28th 2008 regarding the relationship between the Internal Rules and the CPC, and stated that the latter must constitute the primary instrument in the proceedings, before the Internal Rules.

Indeed, the pre-Trial Chamber (PTC), emphasising the exceptional context of the ECCC, asserted that the Internal Rules constituted “the primary instrument to which reference should be made in determining procedures before the ECCC where there is a difference between the procedures in the Internal Rules and the Criminal Procedure Code”. The PTC then considered that “the provisions of the CPC should only apply where a question arises which is not addressed by the Internal Rules”. It is true that at the time of the adoption of the Internal Rules in June 2007, the CPC was not effective yet – it came into force in August 2007 – but, as pointed out by lawyers for civil parties, “the draft of the CPC, which was very similar to the ultimately enacted law, was already available”. They added that the CPC had already been adopted by the National Assembly during the June 2007 plenary session.

Legitimacy of the ECCC Internal Rules called into question

Silke Studzinsky, the German lawyer for the civil parties at the ECCC, claims that the Criminal Procedure Code of Cambodia should be implemented in accordance with the Agreement between the United Nations and Cambodia, and with the ECCC Law and quotes Article 33 (new) of the Law on the establishment of the ECCC: “If the existing procedures do not deal with a particular matter, or if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard, guidance may be sought in procedural rules established at the international level”. By emphasising this aspect, Silke Studzinsky questions the legitimacy of the Internal Rules, drafted by her judiciary personnel during the plenary session(* ), which, she points out, was not subjected to any vote at the National Assembly of Cambodia. Thus, she suggests the question of hierarchy of rules and rights within the hybrid court be closely looked at again.

“The plenary session has no authority over the adoption of the Internal Rules which represent an independent system of legal procedure. However, in Cambodia, the National Assembly alone holds legislative power. Neither the Agreement establishing the ECCC nor the ECCC law delegate such legislative power to the plenary session. Even if the Internal Rules are valid, they come under the Criminal Procedure Code of Cambodia”, the lawyer details, reminding that practices are much different in International courts like the ones in Rwanda, Sierra Leone or former Yugoslavia, where a provision was created to allow judges to adopt their own procedural rules.

“Therefore, we expect judges to be creative”, Silke Studzinsky says, “since it is the first time they have to deal with so many victims. The solution, however, is not to restrict their rights by giving the Internal Rules priority over the Criminal Procedure Code, but to enforce them. This might serves as a pattern for future international courts.”

The debate over the hierarchy of procedures was already held by other international UN courts and might appear before the future Special Tribunal for Lebanon, due to start works on March 1st. The tribunal was also formed following a hybrid pattern applied to a country, in this case Lebanon, in which the legal tradition is that of French Law. After fifteen years and the creation of international jurisdictions, the international criminal justice system is still feeling its way along a winding path and trying to elaborate a code of procedure that would be specific to this type of crimes. But for the time being, these courts have not yet found a solution to organise trials within “a reasonable amount of time”...

* Participants at the plenary session: co-Investigating Judges, Judges of the Chambers, co-Prosecutors, the director of the Defence Support Section, head of the Victims Unit, head and deputy head of the ECCC Office of Administration. However, as stipulated in Rule 18 (3b) of the Internal Rules, only the co-Investigating Judges and Judges of the Chambers are entitled to vote on the rules contained in Chapter III (Rule 21 to 114) regarding the procedure.


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