When National and International Substantive Criminal Law Overlap: Decision on Appeal Against Closing Order Indicting Kaing Giel Eav aka 'Duch'

Abstract

What happens when a hybrid criminal tribunal seeks to prosecute an accused for murder and torture as domestic crimes together with murder and torture as crimes against humanity/grave breaches of the Geneva Conventions (1949) based on the same facts? In the present decision, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia considered this situation in detail for the first time in international criminal law. Drawing inspiration from the International Criminal Tribunal for the former Yugoslavia, it purported to apply the well-known Delalić/Čelibići test for cumulative convictions. However, its understanding of the elements of the relevant international crimes and of the test itself leaves much to be desired. While the method employed by the Pre-Trial Chamber may be viewed as an example of what to do in such circumstances, it should not be viewed as an example of how to do so. Nevertheless, the decision could be influential in the domestic prosecution of international and national crimes arising from the same factual matrix. It may also be useful for the International Criminal Court should it ever seek an accused who has already faced a national trial for domestic offences alone and in its complementarity (unwilling or unable) analysis for admissibility purposes.

Keywords: ECCC, international crimes, domestic crimes, cumulative convictions, ne bis in idem

JEL Classification: K14, K33, K41