National Ownership and International Standards Independence and Impartiality of Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia

Abstract: The ICTY and the ICTR were established in the 1990s to determine individual accountability for mass atrocities. The tribunals have had a great impact on the development of international criminal law, yet their effects in the concerned societies have been disputed. As the courts are located outside the territory in which the crimes took place, and are composed of international lawyers and personnel, they have little interaction with the affected population. This weakness can be described as a lack of national 'ownership' in the proceedings. In the last decade a number of hybrid courts have been established, that to a varying extent are integrated in the national legal system, and that apply both national and international law. The ECCC, which is the focus of this thesis, is an example of such a court. There is yet no general procedural law applicable in international criminal courts, and procedures have developed from national legal systems, human rights instruments, and a number of non-binding instruments. While some rules may be directly applicable, others must be adapted to the international setting and the sui generis nature of hybrid courts. National ownership can be broken down to a number of components, including the participation by national judges and victims, and the acceptance that a court enjoys among the general population. The success of victim participation and outreach programmes will in many ways determine the legacy that the court will enjoy, at least at a national level. At the same time, national ownership should not be promoted at the cost of international standards. While the two concepts are far from contradictory, at times one may have to be prioritized over the other. A number of concerns have been raised with regard to independence and impartiality at the ECCC. Cambodian law falls short of the safeguards required to ensure an independent judiciary, and concerns have been raised regarding political influences at the Court. Since 2007 corruption allegations have been raised, an issue which the Court has failed to adequately address. The Court is dependent on voluntary contributions by states for its operation, something that can call into question the institutional independence of the ECCC. Funds to the Cambodian side have been frozen since 2008 due to the allegations of corruption. The fact that all Cambodian judges lived through the Khmer Rouge era, and are part of an establishment which for decades fought politically and militarily against its remaining leaders, can affect their objective impartiality. Finally, the decisions taken regarding jurisdiction and composition of an ad hoc tribunal can affect its appearance of independence throughout the proceedings. In conclusion, there are a number of ways in which the ECCC does not live up to international standards of independence and impartiality. These flaws can partly be explained by the lack of responsibility and authority that has followed with the dual structure of the Court.