In Need of Prosecution: The Role of Personal Jurisdiction in the Khmer Rouge Tribunal

38 Pages Posted: 4 Mar 2019 Last revised: 29 Jul 2019

See all articles by Sara Ochs

Sara Ochs

Elon University School of Law

Date Written: June 3, 2019

Abstract

During its reign from 1975 to 1979, the Khmer Rouge became responsible for decimating approximately twenty percent of the Cambodian population. Forty years later, only three leaders of the deadly regime have been held criminally responsible for the deaths of almost two million individuals. The Extraordinary Chambers in the Courts of Cambodia (the “ECCC” or “Tribunal”) is a unique “hybrid” international criminal tribunal jointly established by the Cambodian Government and the United Nations in 2006, with the stated purpose of prosecuting those “most responsible” for the Khmer Rouge’s mass atrocities. Yet, after more than a decade of proceedings, it has become increasingly likely that the ECCC will not fulfill its stated mandate.

Since inception, the Tribunal has been plagued by political interference. Throughout its twelve years of operation, the Cambodian Government has compromised the judicial independence of the Tribunal in an effort to block prosecutions into surviving Khmer Rouge leaders, many of whom occupy high-ranking governmental positions. This interference has recently manifested itself in ECCC decisions stringently limiting the scope of the Tribunal’s personal jurisdiction. These decisions have resulted in the dismissal of all charges against one of four defendants before the Tribunal and present grave concerns regarding the viability of prosecutions against the remaining three. Amidst substantiated allegations of corruption and bribery within the Tribunal, these recent decisions add weight to growing speculation as to the ECCC’s potential closure.

While recent scholarship has analyzed the Cambodian Government’s involvement in the ECCC, the effect of this interference on the Tribunal’s increasingly narrow approach to personal jurisdiction has yet to be fully evaluated. This paper tracks the history of and proceedings handled by the ECCC to explore the intersection between the Tribunal’s lack of judicial independence and its recent unworkable approach to personal jurisdiction. In doing so, the paper analyzes the ECCC’s judicial opinions interpreting the scope of its personal jurisdiction, culminating in a discussion of its recent decision to dismiss all charges against Im Chaem. Finally, the paper explores lessons to be derived both from the ECCC’s approach to personal jurisdiction, as well as the U.N.’s joint operation of the Tribunal, for use in drafting legislation governing future hybrid criminal tribunals.

Keywords: international criminal law, cambodia, extraordinary chambers in the courts of cambodia, international courts, international tribunals, hybrid tribunals

Suggested Citation

Ochs, Sara, In Need of Prosecution: The Role of Personal Jurisdiction in the Khmer Rouge Tribunal (June 3, 2019). 55 Stanford Journal of International Law 117 (2019). Available at SSRN: https://ssrn.com/abstract=3333376

Sara Ochs (Contact Author)

Elon University School of Law ( email )

201 North Greene Street
Greensboro, NC 27401-2410
United States
(518)928-2298 (Phone)

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