The Negotiating History of the ECCC’s Personal Jurisdiction

Theary Seng and Fmr. US Ambasssador for War Crimes, Prof. David Scheffer, attending the Closing Arguments of Duch’s Trial, 2009 (Photo: Heng Sinith)

May 22, 2011
By David Scheffer
Cambodia Tribunal Monitor

The Extraordinary Chambers in the Courts of Cambodia (“ECCC”) face two considerable challenges, one by convicted defendant Kaeng Guek Eav (alias “Duch”) and the other by the Co-Investigating Judges and the Co-Prosecutors. The first is a straight courtroom brawl that should be easily settled by the judges. The second is far more contentious and has led many observers of the ECCC to challenge its very legitimacy and future. But now both of the Co-Prosecutors and the Co-Investigating Judges have begun to battle among themselves publicly. The integrity of the ECCC hangs in the balance. The pathway is discoverable, but it will take some common sense and courage to find the markers and act responsibly. As I have listened to oral arguments and read and studied the publicly available documents and media reports on these two situations, I am struck by how a distorted view of the personal jurisdiction of the ECCC still appears to deeply influence the work of those whose responsibility lies with an accurate reading of the ECCC Law and the UN-RGC Agreement.

A brief recap of where things now stand: International Co-Prosecutor Andrew Cayley has challenged (see ) the April 29, 2011, decision of the Co-Investigating Judges not to further investigate a number of suspects identified by Cayley in Case 003. That challenge led the Cambodian Co-Prosecutor Chea Leang to disagree with Cayley and pronounce the individuals as not falling within the personal jurisdiction of the ECCC (see http://blog.cambodiatribunal.org/2011_05_10_archive.html). The Co-Investigating Judges then demanded that Cayley retract parts of his May 9th statement (see ). Does everyone clearly understand the personal jurisdiction of the ECCC?

I wrote an article for The Phnom Penh Post on January 8, 2009 (available in the January 2009 section of “News” of the Cambodia Monitor Tribunal, accessible at many are too many defendants at the krt.pdf), that explained the character and possible number of suspects who would be prosecuted by the ECCC, and how both definition and number were discussed during the negotiations leading to the constitutional documents governing the ECCC. Despite this reality check, here we are, almost 29 months later, and there still seems to be vast confusion about the ECCC’s personal jurisdiction that is even crippling the investigation of four or five additional suspects. There remains a critical need to return to the fundamentals of the negotiations and summarize what transpired in terms of how to describe the personal jurisdiction of the ECCC and the number of individuals that the Cambodian Government, the U.N. lawyers, and, among others, the United States Government (as an important participant in the negotiations) anticipated would be prosecuted.

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