Sunday, August 26, 2007

Caitlin Reiger: Marrying International and Local Justice: Practical Challenges Facing the Khmer Rouge Tribunal

Justice Initiative 97
The Extraordinary Chambers will
include both Cambodian and international
personnel. Caitlin Reiger considers
how this hybrid structure will
In 1999, when the Cambodian
government and the United Nations
were still deciding on the structure of
a tribunal to try members of the
Khmer Rouge leadership, the notion
of a court combining both national
and international judges was being
tried out in Kosovo. Similar “hybrid”
tribunals would be established in East
Timor in 2000 and Sierra Leone in
2002. In each of these countries,
international judges formed the
majority on the respective court, and
this was the UN’s preference for
Cambodia too. Ultimately, however,
the Cambodian government successfully
negotiated a structure in which
Cambodian judges are to constitute
the majority in each Tribunal forum.1
Cambodian judges will occupy three
of the five seats on the Pre-Trial and
Trial Chambers and four of the seven
seats on the Appeals Chamber
(Supreme Court).
Similar compromises were reached
on decision-making and non-judicial
personnel. All judicial decisions
require an increased majority—four
of the five votes on the Pre-Trial and
Trial Chambers, five of seven on the
Supreme Court—which will thus
necessarily include the affirmative
vote of at least one international
judge.2 This mechanism is known as
the “supermajority,” a solution that
has become one of the defining—and
most controversial—elements of the
Extraordinary Chambers in the Courts
of Cambodia (EC) even before their
establishment. In addition to the
supermajority required for decisions,
the EC will have two co-prosecutors
and two co-investigating judges—
comprising in each case one
Cambodian and one international
person. Each of these offices will be
supported by both Cambodian and
international staff. At an administrative
level, there will be a Cambodian
director and an international deputy
These unique and creative mechanisms
attempt to balance the UN’s
concern that international standards
of justice prevail with the Cambodian
government’s determination that
The “supermajority” has become one of
the defining—and most controversial—
elements of the Extraordinary Chambers.
Marrying International and Local
Justice: Practical Challenges
Facing the Khmer Rouge Tribunal
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The Extraordinary Chambers
the tribunal remains an essentially
Cambodian institution. They recognize
the limitations of the national
judicial system’s technical capacity
to deal with serious human rights
violations committed during a prior
regime, particularly in terms of legal
expertise or resources. The participation
of international personnel is
intended to ensure that the trials
meet international standards of fairness
and due process, and to share
relevant expertise with Cambodian
judges. In particular, international
personnel, through the medium of
the UN, may bring an appearance
of impartiality and independence
that may not be possible for national
judicial officers. These benefits do
presume, of course, recruitment of
appropriate international personnel.
At the same time, the court is
intended to retain a measure of
national ownership, credibility, and
relevance for the society that experienced
the crimes. Where an internationalized
court remains part of the
national court system, as was also
the case in East Timor and Kosovo,
there is the further potential of longer
term benefits for the national judicial
system.3 However, it is important
to recognize that the reality of creating
and running an institution of mixed
composition in the form envisaged
for the EC presents particular operational
challenges, especially given the
historical and political delicacy of the
national-international balance that has
been struck.4 These challenges should
not be underestimated. Dedicated
attention will be needed to ensure that
national and international judges,
prosecutors, lawyers and all other
EC staff are able to function effectively
as a cohesive institution with a unified
vision. This is particularly significant
in light of the short—three-year—
timeframe within which the EC is
expected to complete its work.5 Some
operational challenges will be common
across the tribunal as a whole.
Others will be specific to the judges,
prosecutors, and defense lawyers.
General administrative challenges
The administration will be shared
between officers from the Cambodian
civil service and UN appointees.
The UN Secretary-General has stated
that “[t]he Chambers’ unique mode
of operation and needs call for a largely
integrated staffing structure,” in
which most national and international
staff would work “side by side in
the same chain of command.”6 The
exceptions to this would be in those
areas relating to financial control and
the application of UN rules, which
would necessarily be administered
differently. However, the reality is that
there will not be a single administrative
authority on such critical issues
as recruitment and personnel management,
and much will depend
in practice on the division of tasks
Running an institution of
mixed composition presents
particular operational challenges.
Justice Initiative 99
and responsibilities between the
Cambodian administrator and the
UN-appointed deputy administrator.
Even without this structural complication,
experience in other hybrid
tribunals has shown that various
challenges are likely to arise at an
operational level that will require careful
Terms and conditions
In other tribunals of mixed composition,
notably the Special Panels
for Serious Crimes in East Timor and
the Special Court for Sierra Leone,
the differing level of benefits and
resources available to UN/international
staff (as against national staff) has
often become a source of contention.7
Aside from a vast disparity in salaries,
international staff are usually provided
with additional leave benefits, security,
and daily living allowances, and enjoy
exemptions from national taxation
and import duty requirements.8 The
Cambodian government has already
made public reference to the need to
develop an “esprit de corps”9 to avoid
polarization regarding conditions of
work and remuneration. Perhaps to
that end, it has already announced that
the budget discussions now underway
assume Cambodian judges, prosecutors,
and other staff will receive half
the remuneration of their international
counterparts, which would make
the differential much less than in
other tribunals—and considerably
more than comparable Cambodian
judicial or civil service salaries.10
If met, this dispensation may go some
way towards addressing the challenge
of disparate salaries. Also, despite
the fact that they will not be appointed
directly by the UN, the UN Secretary-
General has requested that the
international judges, co-prosecutor
and co-investigating judge be deemed
to be UN officials for the purposes
of terms and conditions—including
benefits, tax liability, and allowances.11
Additionally, a common source of
resentment in other contexts relates
to access to official court vehicles,
which may be of particular resonance
in Cambodia since the proposed location
for the EC is approximately 11
miles from the center of Phnom Penh.
Access to transport resources, if determined
on the basis of nationality, may
be particularly sensitive.12
Language and translation
The proceedings before the EC will
be conducted in Khmer, English, and
French and require simultaneous
interpretation.13 It will be essential that
interpreters receive adequate training
in technical legal terminology as
well as the fundamental principles of
an impartial and fair judicial process,
to ensure, for example, that confidentiality
of witness statements and investigations,
together with the presumption
of innocence of the accused, are
preserved during both investigation
Experience in other hybrid tribunals has
shown that various challenges are likely to
arise that will require careful management.
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The Extraordinary Chambers
and trial phases. In the context of
Cambodia, such knowledge should
not be assumed as many interpreters
and translators may never have experienced
a properly functioning judicial
system themselves.
Language issues will affect the
interaction between Cambodians and
international personnel throughout
the EC, not least in the daily communication
among staff, unless there is
a requirement that both international
and Cambodian staff have a working
knowledge of either English or
French. There is currently no indication
that such knowledge will be a
criterion for recruitment. For international
judges, prosecutors, and
lawyers, access to translations of documentary
evidence from Khmer will be
critical. For their Cambodian counterparts—
if they are not fluent in English
or French—access to legal materials
such as international jurisprudence
will be equally important.14
The supermajority
mechanism in practice
Both the UN Agreement and the
Cambodian domestic law establishing
the Extraordinary Chambers (the “EC
Law”)15 state that “decisions” of the
Chambers will be decided by four out
of five (at Pre-Trial and Trial), or five
out of seven votes (on Appeal)—i.e.
by supermajority. It is clear in the case
of the Pre-Trial Chamber, constituted
to decide disputes between co-investigators
or co-prosecutors, that if no
supermajority is reached, the prosecution
or investigation shall proceed.16
However, in the case of decisions
by the Trial and Supreme Court
Chambers, no guidance is provided
as to how to proceed if no supermajority
is reached, other than that where
there is no unanimity, the decision of
the Chamber shall contain the views
of the majority and the minority.17
While the supermajority system raises
issues of how the Cambodian and
international judges will work together,
the mechanism was clearly intended
to prevent control of decisions by
Cambodian judges alone, particularly
in relation to final verdicts. If, as envisaged,
the bench sometimes splits
along national/international lines
without a positive decision, there is
likely to be considerable confusion.18
For example, if no supermajority
decides for either conviction or acquittal
in a given case, it is unclear
whether the next step would be retrial
before a different Chamber. As
Human Rights Watch observed in
2003, such a procedure is unknown
in Cambodia’s domestic system; the
dominant Cambodian interpretation
might be an effective acquittal.19 This
mechanism will also affect the dozens
of pre-trial and interlocutory decisions
that the Trial and Supreme Court
Chambers will be required to make
prior to final judgment, particularly in
The supermajority system raises
issues of how the Cambodian and
international judges will work together.
Justice Initiative 101
the context of a new jurisdiction in
which the parties will seek rulings to
clarify unfamiliar procedures. Unless
the judges are able to reach a common
understanding quickly on the application
of the supermajority mechanism
in cases of no positive decision, trials
may be considerably delayed, with
serious implications for the EC’s
proposed lifespan.
Selection and appointment of judges
Due to widespread public criticism
and allegations of political interference
in the normal operations of
the Cambodian judiciary, the selection
and appointment of judges may
also pose operational challenges if not
conducted in a transparent and meritbased
manner.20 With any court it
is essential that there be a collegial
atmosphere among the judges if they
are to efficiently and professionally
discharge their judicial responsibilities.
While dissent on legal issues is
a healthy part of the judicial process,
this should still be founded upon a
basis of mutual and professional
respect and trust. The international
judges will be appointed by the
Supreme Council of the Magistracy,
a Cambodian government body, upon
nomination by the UN Secretary-
General. The Cambodian judges
will be appointed by the Supreme
Council of the Magistracy “in accordance
with the existing procedures
for appointment of judges.”21 There
has been much public speculation,
within Cambodia and outside, about
the appointment process of the
Cambodian judges.22 In order to
nurture good working relationships
between Cambodian and non-
Cambodian judges, it is important that
all judges trust in the appointment
process of their colleagues. One possible
way to address this challenge
would be to have all judges develop
and adopt a code of judicial conduct
that applies equally to all.
Furthermore, the transparency and
credibility of the appointment process
will have the potential to either diffuse
or exacerbate tensions among those
Cambodian legal professionals who
are not selected for the tribunal.
This in turn may affect the extent to
which the EC can positively influence
the domestic judiciary more broadly.
Differences in legal and judicial cultures
Bringing together judges from different
national backgrounds raises the
likelihood that their legal cultural
backgrounds will also differ. Each
jurisdiction has its own particularities.
The International Criminal Tribunals
for the former Yugoslavia and
Rwanda, as well as the mixed courts
in Sierra Leone, Kosovo and East
Timor have demonstrated that it takes
time for judges to learn to work
together and accommodate their differing
experiences and preferences.23
This can affect not just the substantive
and procedural law that is applied,
but a wide range of judicial practices
within chambers that the tribunal
may need to address.
Probably the most relevant difference
in legal cultures is that between
judges from civil law and common law
jurisdictions. While the Cambodian
legal system is based on the civil law
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The Extraordinary Chambers
model, there is no requirement that
the international judges will be nominated
from civil law jurisdictions
alone. As has occurred in other international
and mixed courts, judges
from the different systems will be
used to varying rules of procedure and
evidence, and differing approaches to
trial management and to the conduct
of proceedings. Once the EC’s applicable
Rules of Procedure and Evidence
are determined—be they modeled on
the existing Cambodian criminal
procedure, a customized special set of
rules or some combination of both—
judicial disagreements over interpretation
and application may paralyze
decision-making (particularly, in combination
with the supermajority mechanism),
and cause delays and appeals.
This particular operational challenge
could be addressed to some
extent by providing joint training for
both international and national judges
on the application of the relevant laws.
Such training should focus not just
on the EC Law and the relevant international
law and jurisprudence.
The international judges, regardless
of whether they are from civil or
common law backgrounds, will need
to understand the multiple sources
of currently applicable rules of
Cambodian criminal procedure,
including the UNTAC Transitional
Provisions relating to the Judiciary,
and Criminal Law and Procedure
applicable in Cambodia of 1992 and
the Cambodian Law on Criminal
Procedure of 1993. For both national
and international judges, of whom
few if any are likely to have had direct
experience trying cases involving
international crimes, familiarization
with the particular procedural challenges
of these cases will be valuable,
as will an exploration of the international
criminal procedural and evidentiary
rules that have developed in
response to these challenges.24
The level of support available to
judges also forms part of their judicial
“cultural” behavior and expectations.
In jurisdictions—including Cambodia
—where there is only limited administrative
support available to judges
in court, judges may have developed
particular ways of operating that
may lead to misunderstandings with
international colleagues. For example,
in some common law jurisdictions,
such as Canada, South Africa, the U.S.
and Australia, the existence of legally
qualified law clerks or legal officers is
standard practice. In many European
civil law jurisdictions a similar role is
provided by judicial trainees. They
provide the judges with confidential
research assistance and advice, and
may even assist with drafting of decisions.
However, in other jurisdictions—
due to either lack of resources
or different practices—such participation
is entirely unknown and may
initially be perceived as encroachment
on the judicial role. Yet in courts exercising
jurisdiction over international
crimes, the usefulness of legal officers
The EC’s model of co-prosecutors and
co-investigating judges is unprecedented
—no other international or hybrid
tribunals use this structure.
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has been found to be particularly
helpful, given both the specialized
and developing nature of the law
and the vast amount of evidence to
be managed, in comparison with
ordinary national criminal trials. To
this end, provision has been made in
the EC budget for a limited number
of law clerks (both national and international)
to support the judges.25
Other legal cultural differences
may include vastly differing styles of
judicial drafting. In civil law jurisdictions,
the length and detail contained
in orders, decisions, and judgments
is often considerably briefer than
in common law jurisdictions. Some
differences do not necessarily follow
the common law/civil law distinction,
such as between those jurisdictions
where plain language dominates in
judicial drafting as against those
in which more formal or legalistic
drafting is the norm.26 Another example
relates to the judicial practice of
deliberation—whether judges are in
the habit of discussing matters together
with their colleagues, or coming to
their own conclusions separately
before discussion. While these matters
may not individually seem significant,
cumulatively they comprise a
set of practical challenges judges
may experience, and they can have
the potential to disrupt or delay the
smooth operation of proceedings.
The Cambodian judges will have the
advantage of familiarity amongst
themselves with their national practices,
but time and patience is likely
to be required for adjustment in their
relationships with the international
judges, as, indeed, it is among the
international judges themselves, given
their own differing national practices.
Cambodian judges are likely to
have personal experience of the
Khmer Rouge period and its aftermath,
and this will inevitably give
them a different perspective than their
international counterparts, and an
insight into the cases brought before
them. Individual experiences shape
every judge’s outlook, and do not
amount to a lack of impartiality.
What is important is that no judge prejudges
the particular cases that come
before the EC or be perceived to do so.
However, public perception also
plays a role. Some Cambodian judges
were trained in countries that took
well-known positions vis-à-vis the
Khmer Rouge (such as the former
Soviet Union and Vietnam), and may
be perceived within Cambodia as lacking
impartiality as a result (although
a greater danger is likely to be the
inadequacy of their judicial training).
Furthermore, international judges
too are not immune from negative
public perceptions.27 Therefore the
critical needs are for both public education
about genuine issues of judicial
impartiality and competence and rigorous
screening of all judicial appointments
to ensure that there is no basis
Cambodian judges are likely to have
personal experience of the Khmer Rouge
period and thus a different perspective
than their international counterparts.
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The Extraordinary Chambers
for concerns of impartiality, whatever
their provenance.
Prosecutors and
investigating judges
The EC’s model of co-prosecutors and
co-investigating judges is unprecedented—
no other international or
hybrid tribunals tasked with trying
similar crimes use this structure.
Neither the UN Agreement nor the
EC Law offer guidance on the roles of
these officers other than stating that
investigating judges are “responsible
for the conduct of investigations”
and prosecutors are “responsible for
the conduct of prosecutions.”28 Given
that one member of each will be international,
if these appointments are not
from civil law jurisdictions that use a
similar mechanism (and not all civil
law jurisdictions do) their required
cooperation has the potential to lead
to misunderstandings and confusion.
The inclusion of a dispute-resolution
mechanism by way of a specially
constituted Pre-Trial Chamber—for
which there is no precedent in
other hybrid tribunals—presupposes
that the national and international
prosecutor or investigating judge
may disagree. However, the Pre-Trial
Chamber is only envisaged to rule
upon disputes as to whether to proceed
in a particular investigation
or prosecution. It is not intended
to mediate the great many other differences
of opinion on daily operational
questions that may arise and
are not regulated clearly by existing
Cambodian procedure. Possible examples
may include the disclosure of
evidence to the defense during the
investigative phase, pre-trial applications
for witness protection, or procedures
for partie civile applications.
Furthermore, and presenting a possibly
greater challenge, is the question
of whether the mixed structure will
allow for the development of a coherent
prosecutorial and investigative
strategy. An important lesson from
existing international criminal justice
processes is that the widespread
and/or systematic nature of the international
crimes, including for example
the need to examine command
structures and the policy behind various
specific incidents, warns against
approaching individual cases in isolation
from each other without an overarching
strategy. Independent prosecutorial
discretion, which is more
familiar to common law practitioners
and has become the norm in other
international and hybrid courts, is
arguably more suited to this specific
task and yet will be unfamiliar to at
least the Cambodian prosecutor and
investigating judge. For similar reasons,
interpreting the limited guidance
provided in the Agreement
through the lens of a classic civil
law or inquisitorial-style investigative
process, where the pre-trial actions
of the prosecutor are directed by an
investigating judge without specific
expertise in international crimes or
analysis of the broader command
structures, is unlikely to succeed
in establishing a full picture of the
Khmer Rouge regime’s crimes.29
It may also prove to be a further point
of contention between the international
and Cambodian actors.
Justice Initiative 105
Another major operational challenge
facing both the international
prosecutor and investigating judge is
that they will be dependent on the
Cambodian police force to carry out
investigations and bring witnesses
to Phnom Penh to testify. Unlike in
other hybrid and international jurisdictions,
there does not appear to be
any provision in the EC Law to ensure
staff within the prosecutors’ office are
responsible for witness security and
protection during these phases.
Contacting witnesses who may be
scattered throughout the country and
gathering evidence of mass crimes
that are almost thirty years old will
not be easy tasks and yet they are
essential for the success of the trials.30
Aside from the reported problems of
endemic corruption in the national
police force, it is unlikely that there
will be national expertise for work of
this kind and magnitude.
Defense lawyers
Unlike the prosecution and the judiciary,
no mechanisms are envisaged
mandating nationals and internationals
to work together in the defense—
which might thereby avoid some of
the practical difficulties likely to be
faced by the mixed prosecution and
judicial arms. However, there may
be substantial risk of compromising
the rights of the accused to a competent
defense and equality of arms.
Although the UN Agreement
makes note of the right of the accused
to choose their own counsel, current
Cambodian law does not allow foreign
lawyers audience rights in court.31 The
lack of experience in international
criminal law among the Cambodian
legal profession will at a minimum
require international lawyers as advisors
on defense teams. But it is not
clear whether they will have an opportunity
to bring that expertise directly
into the courtroom. Similar situations
have arisen before the hybrid courts
in both East Timor and Kosovo: the
lack of suitably experienced counsel
operated to the overall detriment of
those trials.32 Furthermore, unless the
Tribunal’s office of administration provides
adequate institutional support
for the defense, a perception may arise
that the defense has been denied not
only the benefits of international
expertise, but also the material
resources necessary to do its job.
The practical difficulties of creating
a court that blends national
and international staff, cultures, and
procedures extend well beyond those
outlined here. Yet these operational
challenges are often underestimated
in discussions about the benefits of
combining local and international
justice.33 The EC may yet achieve
an international standard of justice
for Cambodians that is seen and
experienced neither as a purely international
imposition nor as controlled
by domestic political imperatives.
However, it is important to be realistic
about how the particular mixture
of international and national elements
is likely to work in practice.
While many of the challenges are
not insurmountable, if not acknowledged
and addressed they have the
potential to disrupt the important and
difficult task facing the EC in fulfilling
its mandate.
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Caitlin Reiger is a senior associate at the International Center for Transitional Justice.
1. For historical and political background to the negotiations, see Craig Etcheson’s article in the
present issue of Justice Initiatives. For further detail on this period see: Thomas Hammarberg,
“Efforts to Establish a Tribunal against Khmer Rouge Leaders: Discussion between the Cambodian
Government and the UN,” paper presented on May 29, 2001, at a seminar in Stockholm organized
by the Swedish Institute of International Affairs and the Swedish Committee for Vietnam, Laos, and
Cambodia, reprinted as a special supplement to the Phnom Penh Post, September 14-27, 2001. See
also Tom Fawthrop and Helen Jarvis, Getting Away with Genocide: Elusive Justice and the Khmer Rouge
Tribunal, Pluto Press (2004), Chapter 7.
2. Article 4, Agreement between the United Nations and the Royal Government of Cambodia
Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of
Democratic Kampuchea, June 6, 2003 (“UN Agreement”).
3. For a discussion of these cases and the expectations of mixed national and international courts,
see Laura A. Dickinson, “The Promise of Hybrid Courts,” (2003) 97 American Journal of
International Law 295.
4. See Craig Etcheson’s article in the present issue of Justice Initiatives.
5. The Secretary-General has assumed that all operations, from the commencement of the work
of the Prosecutor’s Office to finalizing all trials and appeals, will be three years: “Report of the
Secretary-General on Khmer Rouge Trials, October 12, 2004,” UN Doc A/59/432, para 15.
6. Report of the Secretary-General, para. 28.
7. In East Timor this discord even led to early strikes by East Timorese judges and public defenders:
Suzannah Linton, “Rising from the Ashes: the Creation of a Viable Criminal Justice System in
East Timor,” (2001) 25 Melbourne University Law Review 122 at 135. In the Special Court for Sierra
Leone the disparity in benefits was raised with the Registrar by a group of national staff on several
occasions: author’s discussions with Special Court staff in 2004 and 2005.
8. These privileges and immunities are reflected in Articles 19 and 20 of the EC Agreement.
9. Statement of the Cambodian Government Task Force to the States Members of the United
Nations regarding the Draft Agreement on Khmer Rouge Trials, April 17, 2003, annexed to
UN Doc A/57/808, at 6.
10. In November 2002 Cambodian judges’ salaries were increased from just $25 to $300 per
month: Report of the Special Representative of the Secretary-General for Human Rights in Cambodia,
December 18, 2002, UN Doc E/CN.4/2003/114, para. 14. According to Cambodian government
statements reported in the local press, the Cambodian judges are expected to earn $65,000 per
year, half of the salary of their international counterparts: Lee Berthiaume “KR Trial Judges,
Prosecutors to Earn $65,000,” The Cambodia Daily, September 2, 2005.
11. Report of the Secretary-General.
12. At the Special Court for Sierra Leone, national staff were paid an additional transport allowance,
whereas international staff had after-hours access to court vehicles.
13. Report of the Secretary-General, para. 18.
14. Advice received from the Cambodian Government Taskforce indicates that it has begun a project
of translating key international criminal cases for this purpose.
15. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, with Inclusion
of Amendments as Promulgated on October 27, 2004 (NS/RKM/1004/006) (“EC Law”).
16. UN Agreement, Article 7(4).
Justice Initiative 107
17. UN Agreement, Article 4(2).
18. Amnesty International has noted that the Report of the Secretary-General of March 31, 2003
and the Agreement itself “indicates that the potential for disagreement between judges, prosecutors
and administrative staff is substantial, with differing opinions forming along ‘Cambodian’ against
‘international’ lines.” Amnesty International’s Position and Concerns Regarding the Proposed “Khmer
Rouge” Tribunal, April 25, 2003, AI INDEX: ASA 23/005/2003. Amnesty International was commenting
on the Draft Agreement, but the relevant provisions were retained in the final version
19. See Human Rights Watch, “Serious Flaws: Why the U.N. General Assembly Should Require
Changes to the Draft Khmer Rouge Tribunal Agreement,” April 3, 2003, 5.
20. For discussion of the problems facing the Cambodian judicial system and the lack of judicial
independence in particular, see Report of the UN Special Representative, paras. 20-27; Amnesty
International, Kingdom of Cambodia: Urgent Need for Judicial Reform, June 19, 2002, AI Index: ASA
23/004/2002; Human Rights Watch, World Report 2004.
21. EC Law, Articles 10-11.
22. See for example the advocacy documents put out by the International Working Group on
the Extraordinary Chambers and Open Society Justice Initiative, “International Standards For
The Nomination Of Judges To The Extraordinary Chambers,” February 2004; Cambodian
Human Rights Action Committee, Press Release “Civil Society Calls for International Standards
for the Khmer Rouge Tribunal,” 9 August 2004. See also Cesare Romano, “Judges and Prosecutors
of Internationalized Criminal Courts,” Romano, Nollkaempe and Kleffner (eds.), Internationalized
Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford University Press (2004),
235, 245.
23. See Cassese, 7. For further detailed discussion of this issue see International Center for
Transitional Justice, Hybrid Tribunals – a Comparative Study of East Timor, Sierra Leone and Kosovo,
forthcoming 2006.
24. The UN Secretary-General foresees using a training program planned by UNDP for this
purpose: Report of the Secretary-General, paras. 32-34.
25. Author’s interview with Michelle Lee, Deputy Director of the Office of Administration of
the Extraordinary Chambers in the Courts of Cambodia.
26. Similar issues arose within the Special Court for Sierra Leone.
27. For example, in the Special Court for Sierra Leone motions for disqualification were filed
against two international judges, one of which was partially successful, leading to the disqualification
of Justice Geoffrey Robertson from sitting on one case due to comments he had made in a
book published prior to his appointment.
28. See Articles 5 and 6 of the UN Agreement, and Articles 16 and 23 of the Amended EC Law.
29. The only other international or hybrid tribunal that has used investigating judges was the
Special Panels for Serious Crimes in East Timor, where their formal role, unlike in the Cambodian
system, was limited to ensuring that the rights of suspects and victims were respected during the
investigative phase, and issuing warrants and pretrial orders. See UNTAET Regulation 2000/30
on the Transitional Rules of Criminal Procedure, as amended by UNTAET Regulation 2001/25,
September 14, 2001, Article 9.
30. On the treatment of victims and witnesses in the Tribunal, see the article by Susana SáCouto
in the present issue of Justice Initiatives.
31. Article 5 of the 1995 Law on the Cambodian Bar.
32. Regarding Kosovo, see OSCE Legal Systems Monitoring System, Kosovo’s War Crimes Trials:
A Review, September 2002, 37; regarding East Timor, see International Center for Transitional
Justice (Varney and Hirst), Justice Abandoned? An Assessment of the Serious Crimes Process in Timor
Leste, June 2005, 20.
33. See for example Romano, “Judges and Prosecutors of Internationalized Criminal Courts;”
see also the recommendations currently under discussion in relation to a special mixed
national/international chamber for Burundi, contained in Letter Dated March 11, 2005 from the
Secretary-General Addressed to the President of the Security Council (Report of the assessment
mission on the establishment of an international judicial commission of inquiry for Burundi),
March 11, 2005, UN Doc S/2005
108 Open Society
The Extraordinary Chambers

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