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IN THE MATTER OF THE DISAGREEMENT BETWEEN THE CO-PROSECUTORS ON THE ISSUE OF THE SCOPE OF PROSECUTORIAL DISCRETION AND THE STANDARD OF PRE-TRIAL CHAMBER REVIEW TO RESOLVE A PROSECUTORIAL DISPUTE March 6, 2009

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DOCUMENTATION CENTER OF CAMBODIA

MAGAZINE: SEARCHING FOR THE TRUTH, MARCH 2009

 

IN THE MATTER OF THE DISAGREEMENT BETWEEN THE CO-PROSECUTORS ON THE ISSUE OF THE SCOPE OF PROSECUTORIAL DISCRETION AND THE STANDARD OF PRE-TRIAL CHAMBER REVIEW TO RESOLVE A PROSECUTORIAL DISPUTE

 

Joanna Geneve

 

 

I.          INTEREST OF AMICUS CURIAE

 

            Joanna Geneve is a third year law student at Harvard Law School, graduating in June 2009.  She has studied primarily international human rights and was resident at the Documentation Center of Cambodia (“DC-Cam”) in January 2009.  The views expressed in this submission are her own and do not reflect the opinions or policies of either DC-Cam or Harvard Law School.  Anne Heindel, a legal advisor to the DC-Cam, helped with the preparation of this submission.

 

II.         QUESTIONS PRESENTED

 

A. What is the scope of prosecutorial discretion for the Co-Prosecutors of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”)?

           

B. What scope and standard of review is to be applied by the ECCC Pre-Trial Chamber in order to resolve a prosecutorial dispute?

 

III.        STATEMENT OF FACTS

 

            To date, the ECCC has charged five suspects.  On 1 December 2008, the International Co-Prosecutor filed a Statement of Disagreement under ECCC Internal Rule 71(2) concerning the appropriateness of commencing new investigations against additional suspects for crimes committed under the Khmer Rouge.  The International Co-Prosecutor has proposed filing two new Introductory Submissions and one Supplementary Submission, arguing that there are reasons to think that (1) the crimes described in those submissions were committed; (2) those crimes were within the ECCC’s jurisdiction; and (3) the crimes should be investigated further by the Co-Investigating Judges.[1] The International Co-Prosecutor does not believe that such additional prosecutions would endanger Cambodia’s peace or stability. 

 

On 29 December 2008, the National Co-Prosecutor filed her Response to the Statement of Disagreement with the ECCC Pre-Trial Chamber.  The National Co-Prosecutor believes that the crimes should not be investigated further due to (1) Cambodia’s past instability and the need for national reconciliation; (2) the spirit of the Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of the Democratic Kampuchea (“Framework Agreement)” and the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (“ECCC Law”); and (3) the limited duration and resources of the Court.[2] Instead, the National Co-Prosecutor feels that the Court should focus on the trials of the five suspects who are already detained, arguing that such a prioritization would serve to fulfill the Court’s mandate.  The disagreement is now before the ECCC Pre-Trial Chamber awaiting resolution.[3]

 

The ECCC is facing a unique situation; none of the Cambodian national courts or international or hybrid tribunals possesses more than one prosecutor, rendering prosecutorial disputes impossible.  Given this lack of precedential authority, this brief, in addressing the current dispute, will follow Article 12(1) of the Framework Agreement in seeking guidance in procedural rules established at the international level when Cambodian law and the Internal Rules do not deal with a particular matter.[4]

 

IV.              SUMMARY OF ARGUMENT

 

The Framework Agreement and ECCC Law define the primary role of the ECCC Pre-Trial Chamber: a dispute resolution mechanism for settling disagreements between the Co-Prosecutors and between the Co-Investigating Judges.  Thus, when deciding internal disputes, the Pre-Trial Chamber acts within its core statutory mandate.  Moreover, the ECCC Internal Rules have bestowed the Pre-Trial Chamber with the tools to conduct a fairly extensive factual review when such disputes arise.  These considerations suggest that the Pre-Trial Chamber has the authority to conduct de novo review of the Co-Prosecutors’ disagreement.

 

In the situation at hand, the Co-Prosecutors do not appear to disagree that they possess both the jurisdiction and sufficient evidence to file submissions requesting additional judicial investigations.  Therefore, it appears most appropriate that the Pre-Trial Chamber not inquire into the existence of the objective threshold for an investigation, but instead limit its scope of review to the topics on which the Co-Prosecutors disagree: whether or not (1) it is appropriate for the National Co-Prosecutor to object to additional investigations on the basis of subjective factors and (2) if so, whether these factors outweigh Co-Prosecutors’ statutory obligation to request an investigation once the objective threshold has been met.  Two statutory presumptions, namely the general presumption that investigations and prosecutions will move forward when there is a reasonable basis to proceed and the specific presumption that an investigation will be opened unless four Pre-Trial Chamber Judges agree to stop it, appear to place the burden of proof on the National Co-Prosecutor.  ICC practice suggests that to meet this burden, she should be required to show substantial reasons why the additional investigations should not proceed.

 

The ECCC Co-Prosecutors, like the prosecutors of the international/ized criminal tribunals, possess broad discretion in the selection of cases and alleged perpetrators for investigation and prosecution.  However, the scope of their discretion is limited by several factors, including the requirement that once the Co-Prosecutors “have reason to believe” that crimes within the ECCC’s jurisdiction have been committed, they are required to forward the case to the Co-Investigating Judges.  Other limitations include the necessity for the Co-Prosecutors to obey the mandate of the ECCC Law and to maintain prosecutorial independence, and the review authority of the Pre-Trial Chamber over prosecutorial disputes.

 

The ECCC Internal Rules explicitly require the Co-Prosecutors to consider only objective factors in the selection of cases for investigation.  The Statutes of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”) and the Special Court for Sierra Leone (“SCSL”) contain similar requirements.  Nevertheless, the prosecutors of these courts frequently take subjective concerns into account in exercising their discretion.  Moreover, the Prosecutor of the International Criminal Court (“ICC”) is statutorily required to consider additional criteria under the guise of “interests of justice” once a “reasonable basis to proceed” has been established.  Thus, it appears to be appropriate for the ECCC Co-Prosecutors, in exercising their prosecutorial discretion, to take subjective factors into account in deciding whether to move forward with additional investigations. 

 

Some subjective factors that international prosecutors have likely considered in determining who to investigate and prosecute echo the concerns raised by the National Co-Prosecutor.  These include: the gravity of the crimes, the level of responsibility of the alleged perpetrators, and national reconciliation.  However, none of the factors the National Co-Prosecutor raises appear to militate strongly against forwarding new submissions to the Co-Investigating Judges.

 

The National Co-Prosecutor’s first concern, national reconciliation, is emphasized by the ECCC’s Framework Agreement.  However, it is not at all clear that the pursuit of reconciliation in Cambodia would be best served by a limit on the number of prosecutions; indeed, persons involved with the establishment of the ECCC believed that prosecutions would play a positive role in furthering reconciliation.  Moreover, connected to national reconciliation is the obligation of the Court to tell the “whole story” about what happened and who is responsible a consideration that has frequently been cited by international prosecutors in explaining their selection of accused. 

 

The Framework Agreement also links national reconciliation to peace and security.  It is notable, however, that the UN experts considering the creation of the ECCC did not view public order as a relevant consideration and that no international prosecutors have mentioned public order concerns in discussing their discretionary decision-making.  Although both the Co-Investigating Judges and the Pre-Trial Chamber have raised public order concerns in determining that continued detention of the charged individuals is necessary, they have not put forth any concrete evidence demonstrating that public order would in fact be put at risk by the suspects’ release.  A recent survey indicates that a majority of the Cambodian public is not concerned about this threat, and there is every indication that the Cambodian Government has both the authority and the means to quell any disturbances that could arise. 

 

The second concern raised by the National Co-Prosecutor, the “spirit of the agreement,” relates to the ECCC’s mandate to try only a limited number of persons: senior leaders and those most responsible for serious crimes.  The practice of international/ized courts suggests that the level of defendant responsibility and the gravity of the crimes are not fully distinguishable categories, but instead must be considered holistically.  In addition, these categories have not been narrowly circumscribed, but instead have been broadly applied down the chain of command.  The expectation that more than five persons would be charged is supported by the Court’s travaux preparatoires, which suggest that an appropriately limited number of accused would be around 20-30.  While the ECCC’s ability to bring justice to Cambodians cannot be evaluated solely by the number of prosecutions, many of the subjective factors considered by international courts imply that a greater number of prosecutions would be more supportive of the “spirit” of the Framework Agreement by providing victims with a broader understanding of the workings of Democratic Kampuchea.

 

Finally, finite time and financial resources do not appear to have played a significant role in the prosecutorial decisions of international/ized courts, although all have been confronted with one or both of these considerations.

 

While the ECCC Co-Prosecutors may appropriately, and perhaps necessarily, consider a wide variety of factors in exercising their prosecutorial discretion, it does not appear that the subjective factors raised by the National Co-Prosecutor outweigh the statutory presumption that cases falling within the jurisdiction of the Court that meet the “reasonable basis to proceed” threshold will be investigated.  If the National Co-Prosecutor is unable to meet her burden of proof, the new submissions should be forwarded to the Co-Investigating Judges.

 

V.         ARGUMENT

 

Please find the full version of this brief at www.dccam.org

 

Direct link: http://www.dccam.org/Tribunal/Analysis/pdf/In_the_Matter_of_the_disagreement_between_the_Co-Prosecutors.pdf

 

[1] See Statement of the Co-Prosecutors, 5 Jan. 2009.

[2] See id.

[3] Internal Rules, last revised 5 Sept. 2008, Rule 71(4).

[4] Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of the Democratic Kampuchea, Phnom Penh, 6 June 2003 [hereinafter “Framework Agreement”].  See Article 12(1) which provides, The procedure shall be in accordance with Cambodian law.  Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.

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