IN NEED OF PROSECUTION: THE ROLE OF PERSONAL JURISDICTION IN THE KHMER ROUGE TRIBUNAL.

• Author: Ochs, Sara L.

1. THE KHMER ROUGE AND THE ESTABLISHMENT OF THE ECCC 122 A. The Reign of Democratic Kampuchea 122 B. Establishment and Features of the ECCC 124 C. ECCC Jurisprudence and Cambodian Interference 127 II. THE EVOLUTION OF ECCC JURISDICTION 131 A. Jurisdictional Clauses 131 B. ECCC's Jurisdictional Interpretation 133 1. Case No. 001-Kaing Guek Eav (alias "Duch") 133 2. Case No. 003-Meas Muth 135 3. Case No. 004/01-Im Chaem 137 i. Co-Investigating Judges' Decision on Im Chaem 138 ii. Pre-Trial Chamber Dismissal of Charges against Im Chaem 141 4. Forthcoming Decisions 143 III. LESSONS TO BE LEARNED FROM THE ECCC'S APPROACH TO PERSONAL JURISDICTION 146 A. Clear Jurisdictional Language 146 B. Simple Judicial Structure and Voting Requirements 148 C. Proactive limitations on Political Interference 150 D. Improved Accountability Mechanisms 151 INTRODUCTION

   Between April 17, 1975 and January 7, 1979, over 1.7 million Cambodians, nearly twenty percent of the nation's entire population, perished at the hands of the brutal Khmer Rouge regime. (1) The Extraordinary Chambers in the Courts of Cambodia (interchangeably the "ECCC" and the "Tribunal") was established in 2006 as the product of extensive negotiations between the Royal Government of Cambodia and the United Nations and seeks to bring to justice "senior leaders" and those "most responsible" for the brutal crimes committed by the Khmer Rouge during its reign of Democratic Kampuchea. (2) Yet, forty years after the fall of Democratic Kampuchea and following more than ten years of ongoing legal proceedings, only three of the estimated thousands of individuals who committed the Khmer Rouge's unimaginable atrocities have been held legally responsible. (3)

   The ECCC is one of the most recent in a string of "hybrid" international criminal tribunals established in past decades. These tribunals incorporate attributes of international and domestic law and are generally overseen by a combination of international and local judges. (4) The use of such hybrid tribunals gained popularity in the wake of the United Nation's establishment of the two ad hoc tribunals: The International Criminal Tribunal for the Former Yugoslavia (the "1CTY") and The International Criminal Tribunal for Rwanda (the "ICTR"). Both the ICTY and the ICTR were established by the U.N. Security Council under its Chapter VII authority, and were located in nations outside of where their prosecuted atrocities occurred. (5) While the ICTY and ICTR are generally regarded as successes, they were not without flaws. The ad hoc tribunals received significant criticism for exceeding their anticipated budgets and temporal mandates, and for the level of disconnect with the countries they were designed to serve. (6)

   Drawing from these perceived shortcomings, the international community turned to the use of hybrid tribunals to obtain quicker and more cost-effective justice and to "better address the needs of the citizens of the post-conflict societies that desperately needed assistance." (7) Despite these efforts, hybrid tribunals established for atrocities committed in Sierra Leone, Kosovo, East Timor, and other nations have presented their own unique set of challenges, one of the most common being political manipulation by the nations they are designed to serve. (8) Arguably, no hybrid tribunal better exemplifies this intrinsic deficiency than the ECCC.

   The ECCC's distinct features render it decidedly unique from its hybrid counterparts. Most notably, the ECCC is the first and only "U.N.-originated tribunal to be the creature of domestic legislation." (9) Unlike the ad hoc tribunals, the ECCC is commended for its victim participation, as it is the first court presiding over international mass crimes to provide victims the opportunity to participate in proceedings as "civil parties." (10) Yet, despite this accomplishment, the ECCC has been shrouded in controversy since its tumultuous establishment in 2006. More than a decade since its creation, the Tribunal has exceeded its anticipated budget by more than $250 million (11) and has convicted a mere three of the thousands (and potentially hundreds of thousands) of culpable Khmer Rouge officials. The Tribunal's lack of progress has elicited significant criticism from the international community, the majority of which places blame on the Cambodian government's pervasive presence in the Tribunal's operations, from the negotiation stage to present day. (12)

   One of the Tribunal's most notable flaws and the latest potential embodiment of the Cambodian government's politieal interference is the ECCC's unworkable application of its personal jurisdiction. The law governing the ECCC provides for jurisdiction over "senior officials" and those "most responsible" for the crimes committed by Democratic Kampuchea between April 17, 1975, and January 6, 1979. (13) In a string of recent decisions, the Tribunal has construed this already narrow jurisdictional clause to preclude prosecution beyond a handful of individuals, despite the large numbers of Khmer Rouge leaders and the multitude of atrocities they committed. These decisions reflect the ostensible effort of the Cambodian Prosecutors to limit ECCC convictions to the three defendants already convicted and sentenced.

   In its most recent decision as to personal jurisdiction, the ECCC affirmed the dismissal of all charges against Im Chaem--one of only four charged defendants before the Tribunal who had yet to be convicted. (14) This decision disregarded law established at the highest level of the ECCC and ignored overwhelming evidence reflecting Im Chaem's individual responsibility for tens of thousands of civilian murders. This dismissal is simply one of the latest developments in a divisive split between the Cambodian and international arms of the ECCC, the former--potentially subject to the influence of the Cambodian government--working to prevent future prosecution, and the latter seeking to investigate and prosecute potential defendants in an effort to salvage the ECCC's mandate. Given the majority of Cambodian judges sitting on the Tribunal, further prosecution beyond the three convicted defendants appears unlikely, and the ECCC's future is tenuous at best. Indeed, the Tribunal's decision affirming dismissal of Im Chaem for lack of personal jurisdiction sets the stage for the dismissal of three similarly situated defendants--Ao An, Meas Muth, and Yim Tith--on the same grounds.

   In an effort to make sense of the ECCC's recent unworkable approach to personal jurisdiction and its general reluctance to prosecute, this article begins by reviewing the history leading to the establishment of the ECCC and the prevalent role the Cambodian government has played in the Tribunal since its very beginning. The article next considers the jurisdictional language set forth in the governing ECCC Law and explores the Tribunal's jurisprudence adopting an increasingly narrow view of this language, culminating in a discussion of the recent, flawed decision dismissing all charges against Im Chaem. As the ECCC's impending closure becomes increasingly likely, made even more so by its recent rulings, corruption scandals, and impractical budgetary constraints, consideration must be given to the aspects of the Tribunal that have resulted in its perceived failures. This article concludes by identifying lessons to be drawn from the ECCC's failed approach to personal jurisdiction for use in drafting legislation establishing future international hybrid criminal tribunals, so as to avoid further issues of political interference and to ensure these forthcoming tribunals are provided the opportunities and capabilities to obtain justice for victims of mass atrocities.

1. THE KHMER ROUGE AND THE ESTABLISHMENT OF THE ECCC

   1. The Reign of Democratic Kampuchea

      Following a five-year civil war. during which the United States dropped more bombs on Cambodia than it did on Japan in World War II, (15) the Khmer Rouge, led by its party secretary, Saluth Sar, acting under the nom de guerre Pol Pot, rose to power in Cambodia. The communist party, espousing radical Moaist principles, seized control of the nation's capital, Phnom Penh, on April 17, 1975, overthrowing the U.S.-supported regime in power and instituting the reign of Democratic Kampuchea. (16) Immediately upon coming to power, Pol Pot set in motion "Year Zero"--the beginning of his plan to create a classless, self-sufficient, agrarian, "pure" Khmer society. (17) Under Pol Pot's leadership, the Khmer Rouge immediately executed supporters of the previous government, intellectuals, and anyone seen as an enemy of the new regime. (18) Other "potential enemies," including minorities such as the Vietnamese and Cham Muslims, (19) were arrested and imprisoned in unbearable conditions, extensively tortured, and ultimately executed, with their bodies placed in mass gravesites which have come to be known as "the Killing Fields." (20) The two million Cambodians whom the Khmer Rouge deemed qualified to survive the initial onslaught were forcibly evacuated from the nation's cities into the countryside to perform slave labor by toiling in rice fields and constructing dams. (21) Thousands of these enslaved workers died from starvation, exhaustion, and disease. (22) Those that refused or were unable to work the mandated twelve-hour days were murdered. (23)

      Under Pol Pot's reign, the Khmer Rouge abolished concepts of private property, public education, free markets, and religious practices, among many other facets of Khmer culture and society. (24) Basic human rights were ignored, and the Khmer Rouge encouraged Cambodians to disregard their familial relationships in favor of adopting the regime as their true family. (25) Forced marriages between Khmer Rouge soldiers and young women were common, and refusal to participate in sexual relations within the marriage was a punishable offense. (26) During the three years, eight months, and...