Soldiers as Victims at the ECCC: Exploring the Concept of ‘Civilian’ in Crimes Against Humanity

Leiden Journal of International Law, Forthcoming

Queen's University Belfast Law Research Paper No. 2019 18

32 Pages Posted: 21 Jun 2018 Last revised: 29 Apr 2019

See all articles by Rachel Killean

Rachel Killean

Queen's University Belfast School of Law

Eithne Dowds

Queen's University Belfast - School of Law

Amanda Kramer

Queen's University Belfast - School of Law

Date Written: September 1, 2016

Abstract

The inspiration for this article came from a call for amicus curiae briefs issued in April 2016 by the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The call sought guidance on: whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population for the purpose of constituting a crime against humanity under Article 5 of the ECCC Law. We argue that customary international law at the applicable time justifies the ECCC finding that an attack on members of the armed forces can constitute crimes against humanity. In particular, the article focuses on the importance placed on the persecution element of crimes against humanity in the post-Second World War jurisprudence, and the broad interpretation of the term ‘civilian’. The article also examines the jurisprudence of contemporary international courts, finding that in some cases the courts have interpreted the term ‘civilian’ as incorporating hors de combat. However, the ICTY and ICC have moved towards a more restrictive interpretation of the term 'civilian', potentially excluding members of the armed forces. We argue that this move is regressive, and against the spirit in which the offence of crimes against humanity was created. The ECCC has an opportunity to counter this restrictive approach, thereby narrowing the protective gap which crimes against humanity was initially created to close.

Keywords: International Criminal Law, Crimes Against Humanity, Khmer Rouge Tribunal

Suggested Citation

Killean, Rachel and Dowds, Eithne and Kramer, Amanda, Soldiers as Victims at the ECCC: Exploring the Concept of ‘Civilian’ in Crimes Against Humanity (September 1, 2016). Leiden Journal of International Law, Forthcoming, Queen's University Belfast Law Research Paper No. 2019 18, Available at SSRN: https://ssrn.com/abstract=3200536 or http://dx.doi.org/10.2139/ssrn.3200536

Rachel Killean (Contact Author)

Queen's University Belfast School of Law ( email )

School of Law
Belfast BT7 1NN, BT7 1NN
Ireland

Eithne Dowds

Queen's University Belfast - School of Law ( email )

School of Law
Belfast BT7 1NN, BT7 1NN
Ireland

Amanda Kramer

Queen's University Belfast - School of Law ( email )

School of Law
Belfast BT7 1NN, BT7 1NN
Ireland

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