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Prosecuting Cambodian Genocide: Problems Caused by the Passage of Time since the Alleged Commission of Crimes
Abstract
This article identifies obstacles that the Cambodian Extraordinary Chambers will face in their prosecutions, both in investigation
and at trial. Looking to the practice and jurisprudence of the International Criminal Tribunals for the former Yugoslavia
and Rwanda for assistance, it discusses the balance between the right of an accused to be tried without delay and the rights
of victims and the international community to see justice done 30 years after the events in question.
The 1948 Genocide Convention is a vital legal tool in the international campaign against impunity. Its provisions, including its enigmatic definition of the crime and its pledge both to punish and to prevent the 'crime of crimes', have now been considered in important judgments by the International Court of Justice, the international criminal tribunals and domestic courts. Since the second edition appeared in 2009, there have been important new judgments as well as attempts to apply the concept of genocide to a range of conflicts. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial cooperation, such as extradition. The duty to prevent genocide and its relationship with the doctrine of the 'responsibility to protect' are also explored.
Writing 62 years ago, Georg Schwarzenberger posited that international criminal law did not exist. As long as some States, those larger or more powerful, were held to a different standard, or, in fact, not held to account at all, it was premature to speak of such a thing. For Schwarzenberger, international criminal law was a misnomer without universal criminal justice. This article considers whether that same criticism can be made of international criminal law today. Indeed, it asks whether this is a realistic expectation in the first place. The recently concluded Review Conference of the International Criminal Court in Kampala, Uganda is seen as an ideal juncture at which to do so. This article analyses what is meant by the term international criminal law and then selects two models; the International Criminal Court and the exercise of universal jurisdiction, to gauge the success, or failure, of international criminal law in satisfying Schwarzenberger's criterion.
Article 15 of the Convention against Torture (CAT) provides that, subject to a narrow exception, evidence obtained through
torture is inadmissible as evidence in judicial proceedings. In July 2009, judges of the Khmer Rouge Tribunal determined that
evidence established to have been obtained through torture would in fact be admissible before that Tribunal. This article
argues that this decision represents an incorrect application of the CAT exclusionary rule, and deviates considerably from
established practice.
Completed in the first half of 2010, this thesis received a First Class and was supervised by Professor Margaret Thornton.This article provides an analysis of the story and the trial of the Khmer Rouge official, Kaing Geuk Eav, alias Duch, in the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a Shakespearean lens – particularly drawing upon three plays; The Winter’s Tale, Coriolanus, and Richard III. Duch’s Defence Counsel Mr Francois Roux contended that the real question of Duch’s trial was whether ‘the hearings would allow one who has exited from humanity to return to humanity’. Using Shakespearean exempla, the essay examines the persuasiveness of Duch and his Defence team in its effort to have Duch ‘return to humanity’. This article first details Duch’s life and crimes. In what follows, this article analyses through a Shakespearean lens strengths and weaknesses of the Defence’s appeal for Duch’s ‘return to humanity’ in light of his alleged recognition of guilty and expression of remorse.
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