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UPDATE: Overview of the Cambodian History, Governance and Legal Sources

 

By Jennifer Holligan and Tarik Abdulhak

 

Jennifer Holligan is a Scottish lawyer currently working as a Legal Officer for the EU Rule of Law Mission in Kosovo (EULEX).

 

Tarik Abdulhak  is an Australian lawyer, currently working as a Senior Assistant Prosecutor at the Extraordinary Chambers in the Courts of Cambodia.*

 

Published December 2013

See the Archive Version!

 

Table of Contents

1.     Brief Historical Overview

1.1. Period until 1975

1.2. CPK/DK period: 1975-1979

1.3. Post-DK period to present day

2.     Cambodia’s Legal and Governmental System

2.1. Overview

2.2.  Constitutional and administrative set-up

2.3.  Executive Branch

2.4.  Legislative Branch

2.5.  Judicial Branch

3.     ASEAN and International Relations

4.     ECCC — The Khmer Rouge Tribunal

4.1. Establishment of the ECCC

4.2.  Overview of the ECCC

4.3.  Cases before the ECCC

4.4.  Case 001

4.5.  Case 002

4.6.  Case Files 003 and 004

5.     Sources of Law

5.1. International Treaties

6.     Legal Resources

6.1. Legislation

6.2.  Government websites

6.3.  ECCC websites and electronic resources

6.4.  Printed resources on the Cambodia Legal System and Law Reform     

7.     Bibliography (Cambodian History and DK period)

 

1.     Brief Historical Overview

 

1.1.  Period until 1975

The exact origins of the Khmer people, the majority ethnic group inhabiting present-day Cambodia, are the subject of some debate among historians, one view being that the pre-historic inhabitants of the region migrated from China, and the other that they in fact came from India. In any event, starting around 2,000 years ago, the inhabitants of the region were subject to important religious, cultural and political influences of India. The Khmer people developed an alphabet based on the Pallava script of India, adopted the Hindu religion (today most Khmers are Theravada Buddhists), and benefited from Indian advances in science, engineering and architecture. The most famous example of the impact of these influences on the Khmer architecture is Angkor Wat, the “city-temple” located in the ancient Khmer kingdom’s capital (near today’s Siem Reap), and built during the reign of the emperor Suryavarman II in the 12th century AD.

 

The Angkor Wat and dozens of other temples and buildings that surround it stand as historical monuments to the great Khmer empire whose existence extended from the early 9th century to the middle of the 15th century AD. At various stages of the period, this was South East Asia’s most powerful kingdom. However, for reasons that are still not fully understood, from the 15th century the Khmers abandoned Angkor and migrated south, establishing a new capital at Oudong, 40 kilometers north of Phnom Penh. While data on the ensuing period is limited, available records indicate that Cambodia experienced a period of gradual decline. Located at the juncture of two major spheres of cultural influence – that of Theravada Buddhism to the West (predominant in Thailand) and the Vietnamese empire to the East – the Khmer kingdom eventually saw its sovereignty undermined by its dominant neighbors. Over the seventeenth and eighteenth centuries, the country experienced civil wars, while Thai and Vietnamese kingdoms took turns in invading it. The Vietnamese instituted a program of Vietnamisation of Cambodia in the early 19th century, which ended in 1841 and was followed by a short period of relative independence under Thai influence. 

 

In 1863, Cambodia’s King Norodom signed an agreement with the French to establish a protectorate over his kingdom, which led to Cambodia becoming a French colony. The Japanese occupied Cambodia from 1941 to 1945 and the French sought to re-assert their control after the end of World War II. Cambodia’s first written constitution was promulgated in 1947. Under this constitution, the country was governed by the King and two houses of parliament.

 

The colonial era ended when Cambodia declared its independence on 9 November 1953, following King Norodom Sihanouk’s negotiations with the French. In March 1955, the King abdicated in favor of his father, Norodom Suramarit, and formed the Sangkum Reastr Niyum (“People’s Socialist Community”) political party. The party won an overwhelming victory in the September 1955 national elections. In 1960, following his father’s death, Norodom Sihanouk again became the head of state (this time with the title of Prince).

 

A key 20th century development was the rise of the Cambodian communist movement, which had its origins in the Indochinese Communist Party, formed in Vietnam in 1930. In 1951 a Cambodian branch was formed. In September 1960 a group of young Cambodian communists secretly formed the Workers’ Party of Kampuchea, seeking to chart a course independent from their Vietnamese allies. The party was renamed the Communist Party of Kampuchea (CPK) in 1966. Internationally, members of the CPK became known as the Khmer Rouge, a label given to them by Norodom Sihanouk. The Party’s leadership included several young people who had studied in France on Cambodian scholarships during the 1950s. Among them was Saloth Sar, who would rise to become the CPK leader and come to be known throughout the world by his revolutionary name, Pol Pot. Especially from the 1960s onward, the communists became engaged in a struggle of increasing intensity against Sihanouk’s regime. They adopted a policy of revolutionary violence designed to bring down the regime and the “oppressive classes” associated with it (sections of society that Khmer Rouge labeled as feudalists, capitalists, bourgeoisie or wealthy landowners).

 

In 1963, the leadership of the CPK went underground and withdrew from the capital to coordinate an insurgency from the countryside. At the end of the decade, Prince Sihanouk’s own fortunes changed. In March 1970, his Prime Minister Lon Nol convened the National Assembly, which voted to remove the Prince as the head of state. In 1972, a new state, the Khmer Republic, came into being. The regime, which enjoyed the support of the United States of America, would pursue disastrous military campaigns against Vietnamese communist forces on Cambodian soil. It also fought a bloody civil war against the CPK and its supporters.

 

In March 1970, Prince Sihanouk formed a government in exile, known as the Royal Government of National Union of Kampuchea, usually known by its French acronym, GRUNK. The GRUNK was a coalition between the Prince and the CPK. Its mission was to fight and bring down Lon Nol’s Khmer Republic regime. The Prince, based in Beijing, was the nominal head of the coalition. All power was exercised by in-country communist leaders including Pol Pot, Nuon Chea, Khieu Samphan, Son Sen, Ta Mok and Sao Phim. Together, these men conducted a five year civil war against the Khmer Republic regime. During this period, they adopted a range of radical practices, including extra judicial executions and oppression of civilian populations under their control. Some of these violent practices were not unique to the Khmer Rouge / CPK as the Khmer Republic’s army, increasingly undisciplined, demoralized and disorganized, also killed prisoners of war and captured villagers who were suspected of collaborating with the communists.

 

The difference, however, lay in the communists’ systematic application of terror and oppression against civilian populations. These practices emanated from the top of the party and are recorded in many of its surviving internal circulars. From at least 1972, the CPK operated several security centers in which those suspected of opposing the communists were imprisoned, tortured and executed. At the same time the CPK started a practice of forcibly moving entire civilian populations out of captured urban areas and into rural cooperatives. In these cooperatives civilians were subjected to forced collectivization and hard manual labor under the supervision of CPK cadres. Those perceived as being in opposition to CPK’s rule were executed. In the same period, Prince Sihanouk was marginalized even further.

 

On 1 January 1975 the CPK forces began their final offensive on Phnom Penh. Over the following three months the city was placed under siege, with CPK military shelling the capital’s residential areas and preventing humanitarian aid from reaching the civilian population. The civil war ended in the morning of 17 April 1975 when the victorious communist forces entered Phnom Penh and the Khmer Republic regime surrendered.

 

1.2.  CPK/DK period: 1975 – 1979

From April 1975 to January 1979, the CPK presided over the most tragic phase of Cambodia’s history. Immediately upon taking power, the new authorities forcibly evacuated the urban centers, and enslaved the entire population in CPK-run rural cooperatives and construction sites, effectively turning the entire country into a massive prison.

 

In January 1976, the CPK established Democratic Kampuchea (DK), a state in which virtually all vestiges of Cambodia’s centuries-old social order were abolished. Among other things, the authorities broke up families, prohibited religion, closed down markets, schools and universities, abolished all human rights and civil liberties, and persecuted (and eventually sought to exterminate) the Vietnamese and Cham minority groups. Cambodians were subjected to constant psychological abuse through indoctrination and monitoring by CPK cadres. The regime put in place a countrywide network of security centers in which hundreds of thousands of suspected “traitors” and perceived enemies were systematically imprisoned, tortured and executed. It is estimated that nearly two million people – or one in four Cambodians – died as a result of starvation, illness and execution over the 3 years, 8 months and 20 days that the CPK governed Cambodia. This shocking death toll was the direct result of the regime’s policies whose implementation was centrally coordinated.

 

Throughout this period, CPK / DK forces were engaged in an armed conflict with the Socialist Republic of Vietnam (SRV), fuelled by several factors, including unprovoked CPK incursions into Vietnamese territory and an ongoing territorial dispute between the two countries. In December 1978, SRV forces mounted a massive invasion with the support of Cambodians who had fled CPK / DK rule. They entered Phnom Penh on 7 January 1979, toppling the CPK / DK regime and liberating Cambodia’s people from their tyrannical reign.

 

1.3.  Post-DK period to present day

As the CPK leadership and its followers fled Phnom Penh, a new state, the People’s Republic of Kampuchea (PRK), was established with Vietnamese support. Tragically, however, the toppling of the CPK/ DK regime did not mark an end to warfare and humanitarian strife in Cambodia. Operating from camps in the country’s remote regions bordering Thailand, the CPK formed a coalition with other political movements opposed to the Phnom Penh regime, re-constituted its armed forces, and fought a civil war against the PRK (and its successor regimes, the State of Cambodia and the Kingdom of Cambodia) well into the 1990s.

 

Following protracted negotiations between several Cambodian political factions, the Agreements on the Comprehensive Political Settlement of the Cambodia Conflict (known as the Paris Peace Agreements) were signed on 23 October 1991. The United Nations Security Council was invited to establish the United Nations Transitional Authority in Cambodia (UNTAC), which would oversee the implementation of the Agreements, temporarily run the country’s administration, and coordinate free elections and a restoration of law and order. One of the largest missions in United Nations’ (UN) history, UNTAC exercised supervision over various aspects of Cambodia’s government, including information, finance, foreign affairs and security. It also had the mission of disarming the warring factions. However, it failed to disarm the CPK forces, which allowed them to continue their military campaigns, and even make territorial gains as the civil war wore on.

   

Despite attempts by the Khmer Rouge to block them, national elections were held in 1993, leading to the formation of a coalition government led by Prince Ranariddh (son of Norodom Sihanouk) and Hun Sen as First and Second Prime Ministers respectively. Following its adoption by the new parliamentary assembly, a new constitution was promulgated on 24 September 1993, establishing the Kingdom of Cambodia, a constitutional monarchy with a democratic, multiparty political system. Prince Norodom Sihanouk was again elevated to the status of King and resumed his position as Cambodia’s head of state. He abdicated in 2004, and was replaced by his son, Norodom Sihamoni, Cambodia’s current King. On 15 October 2012 King Father Norodom Sihanouk died in hospital in Beijing, People's Republic of China, after suffering a heart attack. On 1 February 2013, large crowds gathered near the Royal Palace in Phnom Penh to pay their respects to the late King Father as his body was carried through the capital. Sihanouk was cremated on 5 February 2013 and his ashes scattered at the confluence of the four rivers in front of the Royal Palace.

 

2.     Cambodia’s Legal and Governmental System

 

2.1.  Overview

Cambodia’s legal system, which is primarily based on the French civil law tradition, suffered significant setbacks as a result of CPK policies during the 1975 - 1979 period. In setting up the state of Democratic Kampuchea, the CPK abolished virtually all institutions existing under Cambodia’s previous regimes, including the courts. Although DK’s constitution provided for the establishment of “people’s courts,” no judicial institutions were in fact established, and no laws were ever enacted. In place of a legal system, the CPK instituted a centralized dictatorship, which exercised absolute power over the country and governed every aspect of its citizens’ lives. As noted above, dissidents were imprisoned and executed if the regime’s security centers. As intellectuals were among those perceived by the regime as a threat, and therefore targeted for elimination, Cambodia lost the majority of its legal professionals in this period. Re-established following the toppling of the DK regime, the country’s legal institutions are still in a process of transition.

 

An important development to provide accountability for atrocities committed during the DK regime was the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in early 2006. This internationalized criminal tribunal was created in accordance with an agreement between the United Nations and the Royal Government of Cambodia to bring to trial senior leaders of DK and those most responsible for the crimes that took place during the period. More information on the ECCC is provided further below.

 

2.2.  Constitutional and administrative set-up

Under the 1993 constitution, Cambodia is a constitutional monarchy with the King as its head of state. The King represents a symbol of unity and eternity of the nation. The Head of Government is an elected Prime Minister. Legislative power is vested in a bicameral parliament, while the judicial power is exercised by a constitutionally independent judiciary.

 

The territory of Cambodia comprises 24 provinces (rural) and municipalities (urban) with a total of 185 districts, 1621 communes and 13,694 villages. The 24 provincial and municipal administrations are appointed by the central government and are a part of the Ministry of Interior. The 2001 Law on Commune / Sangkat Administrative Management provides for elections of commune level councils. The elections for members of commune councils take place every 5 years. The most recent elections took place on 3 June 2012, Out of a total 11,353 commune council seats, the Cambodia People’s Party (CPP) won a total of 7,993, and the Sam Rainsy Party won 2,660, while the remaining parties won a total of 700 seats.

 

The commune elections have been accompanied by a level of violence and allegations of intimidation of opposition candidates and supporters (including assassinations). While the reported instances of such violence have decreased, they continue to be of serious concern to free and fair elections. For example, in their 2012 report, the Committee for Free and Fair Elections in Cambodia (COMFREL) noted: “In some communes / sangkats an atmosphere of intimidation and fear created a situation where voters felt constraint in their freedom to choose among political contesters. This was not conducive for free and fair elections.”  COMFREL also found weaknesses in the voter registration system, including undue political influence and failures to ensure accurate voter verification procedures. The report concludes that the elections were “limited free.” The next commune elections will take place in 2017. 

 

In addition to providing for a separation of executive, judicial and legislative powers, the constitution guarantees respect for citizens’ fundamental rights contained in the Universal Declaration of Human Rights and other international human rights instruments. Numerous of these rights are expressly set out in the constitution, and they include the right to life, the right to freedom of expression and association, the right to peaceful protest, and the protection of legal ownership. The constitution obligates the state to respect the rights of children and prohibits all forms of discrimination against women. It also sets out due process protections such as the presumption of innocence and equality before the law. Capital punishment is prohibited.

 

Cambodia’s Constitutional Council is responsible for providing interpretations of the Constitution and deciding on disputes relating to the election of members of the National Assembly and Senate. A request for a review of the constitutionality of any law may be made by, among others, the King, the Prime Minister, one quarter of the Senators or one tenth of the members of the National Assembly.

 

The constitution preserves the validity of previously enacted legislation to the extent that the latter is not inconsistent with the constitution itself. Cambodia’s legal system therefore comprises legislation enacted prior to the current constitution, as well as more recent laws, which have been adopted since 1993 to support the emerging market-based economy. A new Code of Criminal Procedure was enacted in 2002, and a new Penal Code entered into force in December 2010. In addition, a new Code of Civil Procedure was enacted in 2007, and a new Civil Code came into force in December 2011.

 

2.3.  Executive Branch

Cambodia's executive government is formed by the party which acquires the greatest number of seats in the National Assembly at national elections. The Prime Minister, who is a member of the Assembly, is appointed by the King on the recommendation of the President and Vice Presidents of the National Assembly. Upon entry into office, the Prime Minister appoints a Council of Ministers. The current Prime Minister is CPP’s Hun Sen.

 

2.4.  Legislative Branch

 

The Senate:

The Senate is the upper house of the Cambodian legislature and has 61 members. Two of these are appointed by the King, two are elected by the lower house of Parliament, and the remaining fifty-seven are elected through non-universal elections, by commune councilors throughout the country and members of the National Assembly. Members of the Senate serve six-year terms. The first elections were held in 2006 and then in 2012 when the CPP won 46 out of the 57 seats. The Sam Rainsy Party won 11 seats. http://en.wikipedia.org/wiki/Funcinpechttp://en.wikipedia.org/wiki/Sam_Rainsy_PartyThe next elections for the Senate are due to take place in 2016.

 

The National Assembly:

The National Assembly consists of 123 members who serve five-year terms upon election. The President and two Vice Presidents of the Assembly are elected by the members. The most recent elections were held on 28 July 2013. According to official results, the ruling CPP won 68 seats (or 48 % of the votes), while the Cambodia National Rescue Party (CNRP) won 55 seats (or 44 % of the vote). The CNRP is a coalition between the Sam Rainsy Party and the Human Rights Party, founded in 2012. The 2013 election results represented a significant decline for the CPP, which lost 22 seats from the previous election.

 

The election results have been challenged by CNRP and their supporters, whose concerns have been echoed by several governments and prominent organizations such as the US, the EU and the Human Rights Watch. The elections were accompanied by widespread allegations of vote rigging, including individuals casting several votes due to the absence of an official population count. Indelible ink, which was used to mark the index finger of voters who have already cast their vote, proved to be easy to remove. The elections were followed by a number of peaceful protests in Phnom Penh in September and October 2013. While the opposition and a number of observers called for an independent inquiry, Cambodia’s National Election Commission has denied irregularities in the elections. On 23 September 2013, King Norodom Sihamoni presided over an opening session of the National Assembly despite calls for a delay.

 

2.5.  Judicial Branch

Following the toppling of the DK in 1979, people's revolutionary courts were established on an ad hoc basis by the PRK regime. Establishment of a more institutionalized system did not take place until 1982 when a law providing for the organization of courts and the Office of the Public Prosecutor was promulgated. Under this law, a network of courts was extended to each province and municipality and the People’s Supreme Court was created as the highest court of the land. The arrival of UNTAC in 1992 brought further important changes to the judicial system in Cambodia, including the creation of an Appeal Court. This resulted in a three-tiered court system, consisting of courts of first instance (municipal, provincial or military courts), the Appeal Court and the Supreme Court. As noted above, the 1993 constitution provides for the independence of the judiciary from the executive and the legislature.

 

The territorial jurisdiction of provincial and municipal courts covers their respective provinces and municipalities, while the military court has jurisdiction over the entire country. Judgments of these courts of first instance can be appealed on questions of fact and law to the Appeal Court. The Supreme Court generally adjudicates only questions of law on appeal from the Appeal Court.

 

A Supreme Council of Magistracy has been established in accordance with the 1993 constitution. Chaired by the King, the Council is responsible for the appointment of judges and prosecutors at all levels, and for the adjudication of disciplinary actions against them. When dealing with disciplinary matters, the Council convenes under the chairmanship of the President of the Supreme Court (or, if the action is against a prosecutor, under the chairmanship of the General Prosecutor).

 

Although the Constitution guarantees the independence of the judiciary, concerns have been raised as to lingering systemic weaknesses within the judicial branch of government. These weaknesses, and their origins in the decades of armed conflict, were noted in a 28 January 2011 decision of the ECCC Trial Chamber dealing with a request for the disqualification of the Chamber’s presiding judge. A United Nations Special Rapporteur on the Situation of Human Rights in Cambodia commented in a 17 June 2010 statement that: “a combination of a lack of adequate resources, organizational and institutional shortcomings, a lack of full awareness of the relevant human rights standards, and external interference, financial or otherwise, in the work of the judiciary, has resulted in an institution that does not command the confidence of people from many walks of life.”

 

The weaknesses in Cambodia’s legal system have been highlighted by a number of recent prosecutions of political activists and members of civil society organizations. In an August 2013 report, the UN Special Rapporteur stated that “judges continue to use the provisions of the Criminal Code against human rights defenders and all those who express opinions which are not favorable to the Government.” The most prominent of these was the 2012 prosecution and conviction of Mam Sonando, a radio station host and a human rights activist. In October 2012 Mr. Sonando was found guilty of a number of offences, including being instigating an insurrectionary movement and inciting people to take arms against State authority. The conviction was widely criticized as lacking any basis in evidence, and led to protests by numerous human rights bodies. On 14 March 2013 the Court of Appeal found that there was no evidence to support many of Mr. Sonando’s convictions. The Court nevertheless found Mr. Sonando guilty of charges relating to unrests in the province of Kratie, and imposed a suspended sentence of five year imprisonment. While Mr. Sonando was released from custody, his conviction has been criticized by, among others, the organization Amnesty International, who stated that the conviction appears to be baseless.

 

The UN Special Rapporteur’s August 2013 recommendations to the Cambodian government include the need to “accelerate the implementation of its promised reform agenda of State institutions responsible for upholding people’s rights, including enacting the three fundamental laws concerning enhancing the independence and capacity of the judiciary.”

 

The establishment in 2006 of an internationalized hybrid tribunal to prosecute those most responsible for crimes committed during the CPK / DK regime (see below under ECCC –The Khmer Rouge Tribunal) has been a significant step in the process of building capacity within the domestic system.  

 

3.     ASEAN and International Relations

Cambodia is a member of the G77, the International Monetary Fund, the United Nations and a number of UN bodies, including the International Labor Organization, the World Health Organization and the Food and Agricultural Organization. Cambodia acceded to the ASEAN Treaty of Amity and Cooperation in 1995 and participated for the first time in the ASEAN Regional Forum in 1995. Cambodia joined ASEAN on 30 April 1999. In November 2012, the country hosted ASEAN’s 21st conference under the theme of “ASEAN: One Community, One Destiny.”

On October 2004, Cambodia became the 148th member of the World Trade Organization (WTO).

 

4.     ECCC — The Khmer Rouge Tribunal

 

4.1.  Establishment of the ECCC

On 21 June 1997, the Cambodian government requested the UN to assist in establishing a tribunal to prosecute those responsible for crimes committed during the DK period. In 2001, the National Assembly passed a law (“ECCC Law”) which provided for the establishment of the ECCC. An Agreement between the Cambodian Government and the UN (“the Agreement”) was signed in June 2003. The Agreement regulates the cooperation between the UN and the Royal Government of Cambodia, and deals with, among other matters, the ECCC’s jurisdiction, composition of its chambers, decision making and applicable penalties. In October 2004, amendments to the ECCC Law were enacted and approved by the Constitutional Council, and the Agreement was ratified. This led to the formal establishment of the ECCC in early 2006.

 

4.2.  Overview of the ECCC

The ECCC is one of a handful of hybrid, internationalized criminal tribunals established to prosecute individuals accused of mass atrocities. While it is technically a part of the Cambodian court system, the ECCC has its own separate jurisdiction, applies international law, and is constituted by Chambers comprising national and international judges. Judgments rendered by the ECCC are final and not subject to review by Cambodia’s Appeal or Supreme Courts. The Co-Prosecutors’ Office is jointly led by an international prosecutor and a national prosecutor.

 

The Court applies a combination of domestic criminal procedure and rules established within the ambit of international criminal law. The law establishing the Court provides that, if existing domestic procedures do not deal with a particular matter, or if there is a question regarding the consistency of domestic procedures with international standards, guidance can be sought in rules established at the international level. To facilitate this process, the Court’s Plenary has adopted Internal Rules which are the primary document governing the procedures before the ECCC.

 

The ECCC has jurisdiction over specific criminal offences set out in the 1956 Cambodian Penal Code (murder, torture and religious persecution), as well as international crimes of genocide, crimes against humanity and grave breaches of the 1949 Geneva Conventions. The ECCC is the first internationalized criminal court which uses the civil law criminal procedure where investigations are carried out by a judicial office (Office of the Co-Investigating Judges). This procedure also provides for the participation of victims as civil parties.

 

As noted above, the ECCC’s personal jurisdiction extends to the senior leaders of Democratic Kampuchea and those most responsible for serious violations of Cambodian penal law, international law and custom during the DK period. Upon conviction, accused can be sentenced to imprisonment terms ranging from five years to life imprisonment.

 

4.3.  Cases before the ECCC

Proceedings before the Court were set in motion on 18 July 2007 when the Co-Prosecutors filed an Introductory Submission (IS) requesting a judicial investigation into numerous alleged crimes, including the forced evacuations of urban centers, and the enslavement, imprisonment, torture and killings of civilians within security centers and mass forced labor sites. The IS identified five suspects: Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith, and Kaing Guek Eav (also known as “Duch”). Following the commencement of the judicial investigation, the Co-Investigating Judges ordered the arrests of the five suspects, and then separated the proceedings against Duch. This resulted in a separate investigation into Duch’s responsibility for the crimes that took place at S-21, the CPK / DK’s central and most important security centre, in which more than 14,000 men, women and children were imprisoned and executed. These proceedings became known as Case 001. The investigations against the other four suspects were conducted as part of Case 002. 

 

4.4.  Case 001

The former chief of S-21, Kaing Guek Eav, alias Duch, was arrested by the Cambodian authorities in 1999 and kept in military detention without trial until his transfer to the ECCC in 2007. His trial at the ECCC started in February 2009, and closing statements were delivered in November 2009. During the trial, the court heard extensive testimony from Duch, as well as 33 witnesses and 22 civil parties at public hearings, which were attended by approximately 28,000 visitors. On 26 July 2010, the Trial Chamber rendered its judgment, finding Duch guilty of persecution as a crime against humanity and grave breaches of the Geneva Conventions. The Chamber imposed a sentence of 30 years of imprisonment (after a five-year reduction as a remedy for Duch’s unlawful detention by the Cambodian authorities).

 

Both Duch and the Co-Prosecutors appealed the Trial Chamber’s judgment before the ECCC Supreme Court Chamber. Duch’s defense team argued that Duch’s case did not fall within the Court’s jurisdiction, and that the Accused should therefore be released. The prosecutors argued, among other things, that the Trial Chamber committed an error by subsuming individual crimes (including murder and torture) under persecution as a crime against humanity, and by failing to sentence Duch to 40 years imprisonment as requested by the prosecution at the end of the trial.

 

The ECCC Supreme Court Chamber (SCC) rendered its judgment on 3 February 2012. It rejected the Accused’s submissions regarding a lack of jurisdiction. It upheld, in part, the Co-Prosecutors’ appeal, finding that the Trial Chamber did commit an error by subsuming several specific crimes against humanity within the crime of persecution. The SCC entered additional convictions for the crimes against humanity of extermination (encompassing murder), enslavement, imprisonment, torture and other inhumane acts. By a 5-2 majority, the SCC imposed a sentence of life imprisonment, finding that Duch was not entitled to a reduction in sentence because the violations of his rights were not attributable to the ECCC.

 

4.5.  Case 002

On 15 September 2010, the Co-Investigating Judges indicted Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith for genocide, crimes against humanity, war crimes, and violations of the 1956 Cambodian Penal Code. These charges related to 27 separate mass crime sites or criminal events. 

 

The four accused in Case 002 were the surviving senior members of the CPK and the DK government. Among the positions they held, Nuon Chea was the Deputy Secretary of the CPK, Ieng Sary Minister for Foreign Affairs, Khieu Samphan the Chairman of the State Presidium, and Ieng Thirith the Minister for Social Affairs. The proceedings against Ieng Thirith and Ieng Sary were suspended / terminated in 2012 and 2013 respectively (see further below).

 

The accused filed appeals against the indictment, which were largely rejected by the ECCC Pre-Trial Chamber, and the case was forwarded to the Trial Chamber on 14 January 2011.

 

In September 2011 the Trial Chamber decided to sever Case 002 into a series of trials in order to ensure that judgments could be rendered on at least a portion of the charges. The decision was driven by the Accused’s advanced age and the complexity of the case.

 

In the first case, known as 002/01, the Trial Chamber proceeded to examine the following issues and charges:

 

  • History of the CPK and DK, the authority and communications structures of the regime, and the roles and positions of the Accused
  • The regime’s policies
  • The responsibility of the Accused for crimes committed in:
    • The forced evacuation of Phnom Penh in April 1975
    • Mass executions of Khmer Republic soldiers, officers and officials at a site in Cambodia’s Pursat Province, known as Tuol Po Chrey; and
    • A second forced transfer of up to half a million of people in late 1975 and 1976.

 

The Chamber refused the Co-Prosecutors’ requests for a limited expansion of the first trial to make the charges more representative of the case as a whole. This decision was overturned by the Supreme Court Chamber on 8 February 2013. Nevertheless, on 26 April 2013 the Trial Chamber exercised its discretion to sever the case in the same manner as in the original severance. On 23 July 2013, on a further appeal by the Co-Prosecutors, the Supreme Court Chamber found that the Trial Chamber erred in law and in the exercise of its discretion. However, given the advanced stage of the trial, the SCC elected not to order an expansion of the case. 

 

Even within the above reduced scope, the first trial has dealt with criminal events affecting millions of victims. The April 1975 forced evacuation of Phnom Penh alone affected more than two million people, and led to the deaths of thousands from starvation, disease and execution.

 

The trial in Case 002/01 commenced in November 2011 and concluded with closing submissions by the parties on 31 October 2013. During this trial, the Chamber sat for a total of 222 hearing days. It heard the testimony of 92 individuals (including experts, witnesses and civil parties). The trial received enormous public interest, with more than 103,000 persons attending the hearings. In their closing submissions, the Co-Prosecutors requested a sentence of life imprisonment, arguing that the Accused are responsible for all of the crimes with which they are charged, as members of a joint criminal enterprise. The Accused argued that they were not responsible for any of the crimes and asked to be acquitted of all charges.

 

Proceedings against Ieng Thirith were first suspended in November 2011 due to a finding that she was unfit to stand trial. Having considered extensive expert evidence, the Trial Chamber found that Ieng Thirith suffers from dementia, most likely caused by Alzheimer’s disease. The Chamber ordered Ieng Thirith released. Following an appeal by the Co-Prosecutors, the Supreme Court Chamber ordered that Ieng Thirith undergo a course of treatment as recommended by one of the medical experts. The purpose of the treatment was to exhaust all reasonable avenues to enable Ieng Thirith’s participation in the trial. Following this further treatment, Ieng Thirith’s cognitive capacities did not improve and she was released from detention in September 2012. In accordance with a further decision of the Supreme Court Chamber, Ieng Thirith’s release is conditional and subject to periodic reviews of her medical condition.

 

Proceedings against Ieng Sary, Ieng Thirith’s husband, were terminated following his death on 14 March 2013.

 

4.6.  Case Files 003 and 004

Cases 003 and 004 are currently in the judicial investigation phase, which is confidential. They were the subject of proceedings before the Pre-Trial Chamber, which arose out of a disagreement between the National and International Co-Prosecutor as to whether to proceed with additional ISs. A public, redacted version of the Pre-Trial Chamber’s considerations issued on 18 August 2009 is available on the ECCC website (under Court Documents > Pre-Trial Chamber).

 

5.     Sources of Law

As in other countries with a continental legal system, legislation is the primary source of law in Cambodia. Other sources of law include the Constitution, custom, government decrees and regulations adopted under UNTAC, and human rights conventions ratified by Cambodia.

 

Under the 1993 constitution, the Cambodian government is required to recognize and respect the human rights set out in the covenants dealing with human rights, women’s rights and children’s rights. In 2007, the Constitutional Council issued a ruling stating that the law applicable before domestic courts is to include the constitution as the supreme law, and the international human rights treaties recognized by Cambodia.

 

Domestic custom:

Custom may influence the application of the law in Cambodia. One example of this is Article 23 of the Law on Contract, which stipulates that, if the meaning of a contractual provision is not clear, it shall be interpreted according to common practices or customs of the place where the contract was made. Furthermore, the Khmer tradition of conciliation beginning at the village level remains a part of the dispute resolution process. Conflicts are often dealt with at village level first before being heard by a court of first instance.

 

UNTAC Regulations:

During the transitional period described under “Post-DK period to present day” above, a Supreme National Council (SNC) was established under the Peace Paris Agreements. Under the terms of the Agreements, the “SNC represent[ed] the unique legitimate body and source of authority in which, throughout the transitional period, the sovereignty, independence and unity of Cambodia are enshrined.” The SNC represented Cambodia at the United Nations and delegated its powers to UNTAC during the transitional period until the election of a new government. During this period, laws such as the 1992 Electoral Law were drafted by UNTAC and adopted by the SNC. Laws adopted during this period remain in power until their replacement by laws enacted by Cambodia’s parliament.

 

5.1.  International Treaties

Cambodia is a party to numerous international treaties and conventions, including the following treaties relevant to protection of human rights:

 

·                         International Covenant on Civil and Political Rights

·                         International Covenant on Economic Social and Cultural Rights

·                         International Convention on the Elimination of All Forms of Racial Discrimination

·                         Convention on the Elimination of Discrimination against Women

·                         Genocide Convention 1948

·                         ICC Rome Statute 1998

·                         Geneva Conventions 1949

·                         Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

·                         Convention on the Rights of the Child

 

International treaties are ratified by the King following a vote of approval by the National Assembly.

 

6.    Legal Resources

Given that, Cambodia is still a country in transition, electronic and hard copy legal resources are relatively limited. Nevertheless, a number of useful texts are available, legislation in a number of areas can be found online, and several websites provide useful information on the set-up and activities of Government ministries.

 

6.1.  Legislation

 

Vernacular sources:

The UN Office of the High Commission for Human Rights publishes a compilation of laws and other legal instruments relevant to the administration of justice and institutional development in Cambodia. The compilation also contains the text of the main international human rights treaties to which Cambodia is a party, as well as the ILO conventions, extradition treaties, and other international instruments.

 

The compilation is available here.

 

Open Development Cambodia is an online hub which compiles a wide range of data relevant to business, legal, environmental, international and social issues in Cambodia. 

 

The compilation is available here.

 

An official gazette is published by the General Department of Official Gazette; however, this is not available online.

 

English language sources:

Numerous laws are available online in the English language, including Land Law, Law on Nationality, Law on the Investment of the Kingdom of Cambodia, Law on Taxation, Labor Law, Law on Insurance, Law on Foreign Exchange, Law on Marriage & Family, Trademark Law, Law on Land Management, Urban Planning and Construction, Law on Mineral Resource Management and Exploitation, and Law on the Dividing of Property.

 

These and other laws can be found at:

Go Cambodia- Laws

Lexadin

WIPO Resources

 

Constitution:

Constitution of Cambodia

 

 

6.2.  Government websites

·                Government Offices and Ministries

·                Chief of State and Cabinet Ministers

·                The Senate

·                The National Assembly

·                Council for the Development of Cambodia

·                Constitutional Council of Cambodia

·                National Institute for Statistics of Cambodia

 

6.3.  ECCC websites and electronic resources

·                         ECCC Official Website

·                         UN and Cambodian Government Agreement to Establish ECCC

·                         ECCC Law

·                         Cambodia Tribunal Monitor

 

6.4.  Printed and online resources on the Cambodian Legal System and Law Reform

·                         Introduction to Cambodian Law, by Kong Phallack, Hor Peng and Jorg Menzel. Contains an overview of the Cambodia legal and judicial system as well as chapters on specific legal areas such as Civil Law, Administrative law, Labor law and the ECCC.

·                         Legal System of Cambodia, by Siphana Sok and Denora Sarin. Contains an historical overview, discussions of the sources of law and key legal principles, and descriptions of relevant institutions.

·                         "Cambodia" article in Legal Systems of the World: A Political, Social, and Cultural Encyclopedia, vol. 1, pages 240-244. Contain sections on the legal system, legal concepts, judiciary and impact.

·                         The Cambodian Constitutions (1953-1993), by Raoul M. Jennar provides the text of the various constitutions that have governed Cambodia since 1947.

·                         Introduction to the Cambodian Judicial Process, by Koy Neam. Provides an overview of the judicial system in Cambodia, including its structure, and a step-by-step guide to judicial procedures.

·                         Legal Profession in Cambodia, by Ky Tech et al.

·                         International Conference on Cambodian Legal and Judicial Reform in the Context of Sustainable Development, edited by Sok Siphana (1998)

·                         Problems Facing the Cambodian Legal System by Fernando, Basil

·                         Cambodia, the Justice System and Violations of Human Rights, by Ross, James

·                         Rebuilding Cambodia: Human Resources, Human Rights, and Law: Three Essays by Dolores A. Donovan, Sidney Jones and Dinah PoKempner and Robert J. Muscat; Foreign Policy Institute, Paul H. Nitze School of Advanced International Studies, Johns Hopkins University, 1993

·                         Report of the Special Rapporteur on the situation of human rights in Cambodia, Surya P. Subedi, 5 August 2013, UN Document Number A/HRC/24/36 [to access the Special Rapporteur’s reports, go here.]

·                         The Committee for Free and Fair Elections in Cambodia (COMFREL), Final Assessment and Report on 2012 Commune Council Elections

·                         Amnesty International, Cambodia: Journalist’s release from prison a step in the right direction, 14 March 2013

·                         Human Rights Watch, Cambodia: Independent Election Inquiry Needed, 29 September 2013

 

 

7.     Bibliography (Cambodian History and DK period)

·                David Chandler, A History of Cambodia, 4th ed, 2008

·                Craig Etcheson, The Rise and Demise of Democratic Kampuchea, 1984

·                Elizabeth Becker, When the War was Over, 1998

·                Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79, 1996

·                Raoul M Jennar, The Cambodian Constitutions 1953 – 1993, 1995

·                Philip Short, Pol Pot: The History of a Nightmare, 2005

 

* The information and views expressed above are given by the authors in their personal capacity and not on behalf of their respective employers.