Abstract
The appellate stage of the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC) has received more limited attention than its pre-trial and trial process. In order to partially remedy this gap, this article highlights the unique features of the ECCC appellate system and how the Supreme Court Chamber (SCC) has given them effect in practice. Firstly, I consider the SCC’s restricted jurisdiction over immediate appeals and failed attempts by its judges to extend such appeals to jurisdictional questions. Secondly, I discuss the scope and powers of appellate review by the SCC in respect of alleged errors of law and fact, focusing on its innovative formulation of the standard of review of factual errors. This qualified deference standard has proven to be of broader import as it has informed the International Criminal Court Appeals Chamber's majority approach in the Bemba case. Thirdly, I focus on the SCC’s intervention in one area, namely the ECCC’s personal jurisdiction, and its reading of the ‘most responsible’ parameter as a non-jurisdictional and judicially unreviewable criterion. Taking cues from these landmark decisions, I appraise the SCC’s role in delivering fair and expeditious justice and securing the viability of the ECCC’s mission while acknowledging the more contentious aspects of its track record without which no account of its emerging legacy would be complete or balanced.
Highlights
Some 13 years into the operation of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the expectable question of whether its mandate is nearing the end admits no straightforward answer
Unlike other international and special courts, the ECCC features a two-track appellate system consisting of the Pre-Trial Chamber (PTC) with jurisdiction over appeals in the pretrial stage,[9] and the Supreme Court Chamber (SCC) serving as ‘both appellate chamber and final
I turn to the standards and powers of appellate review at the ECCC and the question of how the SCC has given them effect in its practice
Summary
Some 13 years into the operation of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the expectable question of whether its mandate is nearing the end admits no straightforward answer. The entrenched disagreements between the international and national Co-Prosecutors (CPs), Co-Investigating Judges (CIJ), and Pre-Trial Chamber (PTC) Judges make it uncertain for how much longer the troubled Cases (Meas Muth),[4] (Yim Tith)[5] and 004/02 (Ao An)[6] will be allowed to continue, if at all. I start off by setting out the contours and oddities of its appellate regime as a sui generis system (Section 2) This is followed by a discussion of the SCC’s jurisdiction and the issue of restricted scope of immediate appeals (Section 3). The final section concludes with tentative reflections on whether, on balance, the SCC’s appellate interventions have positively promoted the orderly administration of justice in the ECCC system and the viability of its mission
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