The Interaction Between Domestic Law and International Humanitarian Law at the Extraordinary Chambers in the Courts of Cambodia

Abstract

This chapter focuses on the law applied by the Extraordinary Chambers in the Courts of Cambodia (ECCC) to deal with the violations of humanitarian law that took place in Cambodia during the Khmer Rouge regime. After a survey of the events that characterised one of the most despicable periods of human rights and humanitarian law violations, the discussion will focus on the particular nature of the Chambers, as they constitute a hybrid tribunal rather than a pure international criminal tribunal in the shape of the ad hoc tribunals for Rwanda and the former Yugoslavia. The desire to bring standards and norms of international criminal justice within the Cambodia’s judicial structure is evidence of Cambodia’s twofold intent: first of all, to bring justice to the victims of the atrocities committed by the Khmer Rouge regime; secondly, to ensure that the ECCC’s decisions are firmly rooted in the principles of international criminal justice, especially the legality principle. The importance of this approach cannot be underestimated, as Cambodia strives to deal with accountability and to avoid the pitfalls of the previous ad hoc tribunals. The discussion will then turn towards an analysis of the laws applicable by the ECCC, looking at particular examples to evaluate how the Chambers have used domestic laws, either to provide a better interpretation of a particular issue or to enable them to extend criminal liability in the light of current developments. Nonetheless, it will be seen that the Chambers decisions are guided by an elements of foreseeability in order to ensure compliance with the legality principle.