The protection of victims and witnesses at international and internationalized criminal courts : the example of the ECCC / Christine Kunst.
2013
KZ7312 .K86 2013 (Map It)
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Details
Author
Title
The protection of victims and witnesses at international and internationalized criminal courts : the example of the ECCC / Christine Kunst.
Published
Oisterwijk, The Netherlands : Wolf Legal Publishers, [2013]
Copyright
©2013
Call Number
KZ7312 .K86 2013
ISBN
9789058508225 (pbk.)
9058508226 (pbk.)
9058508226 (pbk.)
Description
xiii, 278 pages ; 24 cm
System Control No.
(OCoLC)854557101
Bibliography, etc. Note
Includes bibliographical references (pages 261-278).
Record Appears in
Table of Contents
Title I: Features of the ECCC and the structures of witness and victims protection in international contexts
3
Part A: Overview of the ECCC
7
I.
Overview of Cambodian history
7
1.
From the French protectorate to Lon Nol's rule
7
2.
Formation of the Khmer Rouge movement
7
3.
Khmer Rouge rule from 1975-1979
8
4.
1979-1989: Vietnamese rule
10
5.
1989-1991: Conflicting parties and the search for a solution
11
6.
UNTAC administration and reconstruction of the country in 1993
12
7.
Trial of Pol Pot in 1997
13
8.
Cambodia 'since 1998
14
II.
The negotiation process
15
1.
Request for assistance and Group of Experts report
15
2.
August 1999: First round of negotiations
16
3.
The second round of negotiations
16
4.
Third round of negotiations and Cambodian legislative procedure
17
5.
The UN withdraws from the negotiations
17
6.
The "Group of Interested States" intervenes
18
7.
Signature of the Agreement and approval of EC-Law 2004
18
8.
Analysis of the negotiation process
19
III.
Jurisdiction of the ECCC
20
IV.
The organs of the ECCC
21
1.
The reasons for the establishment of internationalized criminal courts
22
2.
Characteristics of internationalized criminal courts
23
3.
Co-structure of the ECCC
24
a.
The ECCC organs relevant for the pre-trial stage: the co-prosecutors, the co-investigating judges, and the Pre-Trial Chamber
25
b.
The ECCC organs relevant at the trial and appeals stage: the Trial Chamber, the Supreme Court Chamber, and the office of administration
27
V.
Conclusion (Part A)
28
Part B: The definition of victims and witnesses and their concerns
29
I.
Definition of "victims" and of "witnesses"
29
1.
Definition of 'victims'
29
a.
The personal element ([„]individually or collectively")
29
b.
The material element ("harm suffered") and the nexus between the material element and the commission of ECCC crimes
30
c.
Restriction of this definition in the framework of protective measures
31
2.
Definition of witnesses
32
a.
The inclusion of potential witnesses into the definition
33
b.
Different types of witnesses
34
c.
The possibility of obtaining a "dual status" as a participating victim and a witness
34
3.
Summary
36
II.
Concerns of victims and of witnesses
37
1.
The danger of retraumatizating victim-witnesses
37
a.
Definition of 'trauma' and its application to Cambodia
37
b.
Symptoms of trauma
38
c.
The lack of support for trauma victims in Cambodia
39
d.
The effects of witness testimony: secondary victimization, or contribution to the healing process
40
2.
Witnesses' and civil parties' fear of reprisal
42
3.
Witnesses' fear of self-incrimination
43
4.
Practical difficulties for witnesses
44
5.
Summary
44
III.
Conclusion (Part B)
45
Part C: Conditions for the order and continuation of protective measures for victims and witnesses
47
I.
Conditions for applying protective measures
47
1.
The ECCC procedural rules and jurisprudence
47
a.
Conditions for the protection of witnesses
47
b.
Conditions for the protection of civil parties
48
2.
Objective foundation of witness or victim fears
49
a.
The case-by-case approach adopted in the jurisprudence of the ad hoc tribunals
49
b.
Global approach at the SCSL
51
c.
Case-by-case approach at the ICC
52
d.
Conclusion
52
3.
The possibility of conflicts between witness protection and the rights of the accused
52
a.
Importance of witness protection
53
b.
Right of the accused to a fair and public trial
54
c.
The consideration of witness protection and the rights of the accused in the ECCC legal framework
54
d.
The statutory rules and jurisprudence of the ad hoc tribunals and of the ICC
55
e.
Conclusion
55
4.
Necessity of the measure
56
II.
Continuation of protective measures
56
1.
The continuation of protective measures as the general rule
57
2.
Variation of protective measures
58
3.
Application of these guidelines to ECCC proceedings
59
III.
Conclusion (Part C)
60
Part D: Applicable sources of laws at the ECCC
61
I.
The relationship between the "internal sources of law" of the ECCC and Cambodian procedural law
61
1.
The "internal sources of law" of the ECCC
61
2.
Overview of Cambodian procedural law
62
3.
The hierarchy of laws between the "internal sources of law" of the ECCC and Cambodian procedural law
63
a.
Legality of the Internal Rules
64
b.
Hierarchy between the Internal Rules and the Code de Procedure
65
c.
Gap-filling function of the Code de Procedure
66
4.
Conclusion
66
II.
The hierarchy of laws between the different "internal sources of law"
67
1.
Conflicts between EC-Law/Agreement and Internal Rules
67
2.
Conflicts between the Internal Rules and the Practice Directions
68
3.
Conflicts between the EC-Law and the Agreement
68
a.
The relationship between national and international law according to the theory of monism
69
b.
The relationship between national and international law according to the theory of dualism
70
c.
Conclusion
72
III.
The applicability of international legal norms at the ECCC
72
1.
The application of "international standards of justice, fairness and due process of law"
72
2.
The reference to "rules established at the international level": Conditions for applying international rules
74
a.
Lacunae in the Cambodian rules
74
b.
Uncertainty regarding the interpretation and application of Cambodian law
75
c.
Consistency with international standards
76
3.
Sources of laws as mentioned in Article 38 ICJ Statute
76
a.
Applicability of conventional international law
77
b.
Applicability of customary international law
77
c.
Applicability of general principles of law
78
d.
Hierarchy between these sources of law
78
4.
Further "rules established at the international level"
79
a.
Guidance in procedural rules of other international criminal tribunals
79
aa.
Guidance in ICC procedural rules
79
bb.
Guidance in procedural rules of the ad hoc tribunals
79
cc.
Guidance in procedural rules of other internationalized courts
80
b.
Judicial decisions as subsidiary means for the determination of rules of law
80
aa.
Relevance of the ECCC jurisprudence
80
bb.
Relevance of the jurisprudence of other international criminal courts
81
cc.
Guidance in the ECtHR jurisprudence
81
c.
Requirement of agreement or uniformity in the procedural rules and jurisprudence of other international and internalized criminal courts
83
d.
Conclusion
84
5.
"Seeking guidance" in rules established at the international level
84
a.
Arguments against the application of international rules at the ECCC
84
b.
Arguments in favor of the application of international rules at the ECCC
85
IV.
Conclusion (Part D)
86
Summary of Title I
87
Title II: Out-of-court evidence and anonymity as means to protect victims and witnesses
89
Part A: The interplay between the admission of evidence and the confrontation right
93
I.
The accused's right to confront witnesses against him
93
1.
The right to examine witnesses in the ECCC legal framework
93
2.
The confrontation right in common and civil law
93
3.
The right to examine witnesses in the ICCPR and in the ECHR
94
4.
The questioning of witnesses at the ad hoc tribunals and at the SCSL
95
5.
The questioning of witnesses at the ICC
96
6.
Summary
96
II.
The admissibility of evidence
97
1.
The admissibility of evidence at the ECCC
97
2.
The adversarial and the inquisitorial approach to evidence
98
3.
The admissibility of evidence at the ad hoc tribunals
98
4.
The admissibility of evidence at the Special Court for Sierra Leone
99
5.
The admissibility of evidence at the ICC
99
6.
The admissibility of evidence at the Special Tribunal for Lebanon
100
7.
Summary
100
III.
Conclusion (Part A)
101
Part B: The admissibility of out-of-court evidence
103
I.
The questioning of witnesses at the pre-trial stage of the international criminal tribunals
103
II.
The admissibility of written witness statements
105
1.
The admissibility of written witness statements at the ECCC
105
2.
The admissibility of written witness statements at the ICTY
106
a.
RPE 92bis: evidence relating to proof of a matter other than the acts and conduct of the accused
107
b.
RPE 92ter, quarter and quinquies: evidence pertaining to proof of acts and conduct of the accused
107
3.
The admissibility of written witness statements at the ICTR and at the SCSL
108
4.
The admissibility of written witness statements at the ICC
108
a.
The different scopes of Article 56 ICC Statute, RPE 68 (A) ICC, and Article 68 (1) Statute
108
b.
The admissibility of documented evidence according to RPE 68 (B) ICC and according to Article 68 (2) Statute in the ICC jurisprudence
109
5.
The application of the ICTY procedural rules and jurisprudence in the ECCC jurisprudence
110
6.
Conclusion
111
a.
The competing interests
111
b.
Balancing these interests
112
III.
The admissibility of depositions
114
1.
The admissibility of depositions in ECtHR case-law
114
2.
The admissibility of depositions at the ad hoc tribunals and at the SCSL
115
3.
The admission of depositions into the ICC proceedings
116
4.
Conclusion
116
IV.
The admissibility of hearsay evidence
118
1.
The admissibility of hearsay evidence in the common and the civil law system
118
2.
The admissibility of hearsay evidence at the ad hoc tribunals and at the SCSL
119
3.
The admissibility of hearsay evidence at the ICC
120
4.
Conclusion
121
V.
Conclusion (Part B)
121
Part C: The anonymous present witness
123
I.
Collection and disclosure of evidence in common and civil law systems and at international(ized) criminal courts
123
1.
Collection and disclosure of evidence at the ECCC
123
2.
Collection and disclosure of evidence in common and civil law systems
123
3.
Collection and disclosure of evidence at the ad hoc tribunals and at the Special Court for Sierra Leone
124
a.
Exceptions to disclosure at the ICTY
124
b.
Exceptions to disclosure at the ICTR
125
c.
Exceptions to disclosure at the SCSL
125
4.
Collection and disclosure of evidence at the ICC
126
5.
Conclusion
126
II.
Anonymous witness testimony at the trial stage
126
1.
Witness anonymity in the ECCC legal framework
126
2.
Witness anonymity in common and civil law systems
128
3.
Witness anonymity in the case-law of the UN Human Rights Committee
128
4.
The Tadic decision of the ICTY
129
a.
Reasoning of the ICTY judges in the Tadic decision
130
b.
Separate Opinion by Judge Stephen
131
c.
Analysis of the Tadic decision
132
aa.
Implications of witness anonymity for the right to confrontation
132
bb.
Conditions for anonymity
133
cc.
Procedural safeguards for witness anonymity
134
5.
No witness anonymity at the ICTR and at the SCSL
135
6.
Witness anonymity in the ICC legal framework
135
a.
Negotiation history of the procedural rules
135
b.
Arguments against the permissibility of witness anonymity
136
c.
Arguments in favor of permitting witness anonymity
136
d.
Conclusion
136
7.
Conclusion for the ECCC
137
a.
Argument against witness anonymity at the ECCC
137
b.
Arguments in favor of witness anonymity at the ECCC
138
c.
Suggestions for witness anonymity at the ECCC
139
III.
Delayed disclosure of witness identities to the accused and to the defense at the trial stage: the system of "rolling disclosure"
139
1.
The jurisprudence of the ICTY
140
2.
The procedural rules and jurisprudence of the ICTR
140
3.
The SCSL procedural rules and jurisprudence
142
4.
The ICC procedural rules and jurisprudence
143
5.
Analysis
143
a.
Comparison between the procedural rules and jurisprudence of the different tribunals
143
b.
Analysis of the system of "rolling disclosure"
144
IV.
Conclusion (Part C)
146
Part D: The admissibility of anonymous hearsay evidence
147
I.
The ECtHR case-law
147
1.
Guidelines established in the ECtHR case-law
147
2.
Reasons for anonymity
148
3.
Adequate counterbalance measures
150
a.
The opportunity of the judges to observe the witness' demeanor
150
b.
The "adequate and proper opportunity" of the defense to challenge and question the witness
151
c.
Existence of an exclusionary rule for unconfronted anonymous testimony
152
4.
Evidentiary value of anonymous testimony
153
5.
Conclusion
154
a.
Limitations for the rights of the accused and adequate counterbalance measures
154
b.
Implications for the judges stemming from witness anonymity
156
6.
Application of the ECtHR case-law to the ECCC
156
II.
The ICC jurisprudence
157
1.
Trial Chamber decision of May 2006 in the Lubanga case and corresponding Appeals Chamber decision
158
2.
First and second Trial Chamber decision of September 2006 in the Lubanga case and corresponding Appeals Chamber decisions
158
a.
First decision of Single Judge Steiner
158
b.
Second decision of Single Judge Steiner
160
3.
Decisions in the Katanga case
160
a.
Pre-Trial Chamber decision of December 2007
160
b.
Pre-Trial Chamber decision of September 2008 and of May 2009
161
4.
Application of the ICC guidelines to the ECCC trial hearings
162
III.
The procedural rules of the Special Tribunal for Lebanon
163
1.
The procedure of taking a deposition from an anonymous witness
163
2.
Admissibility and evidentiary value of anonymous depositions
164
IV.
Conclusion (Part D)
165
Part E: Anonymity for participating victims (civil parties)
167
I.
Victims anonymity at the pre-trial stage
167
1.
The ECCC rules and jurisprudence
167
2.
The ICC rules procedural rules and jurisprudence
168
3.
Transfer of the ICC guidelines to the ECCC
169
II.
Victims anonymity at the trial stage
169
1.
The ECCC rules
169
2.
ICC rules and jurisprudence
170
3.
Analysis
171
III.
Conclusion (Part E)
172
Summary of Title II
173
Title III: Measures to protect victims and witnesses in ECCC proceedings
175
Part A: Confidentiality measures
179
I.
Importance of the public trial principle
179
1.
The international codification of the right to a public trial
179
2.
Reasons for the public trial principle
180
II.
In Camera hearings
180
1.
Applicable sources of laws concerning in camera hearings
181
a.
The ECCC legal framework concerning in camera hearings
181
b.
In camera hearings in the main international human rights instruments
181
2.
Conflicts between the ECCC legal framework and the ICCPR
182
a.
The reference to the "interests of justice" in the EC-Law and the Agreement
182
b.
The reference to the possibility to close hearings "for good cause" in the EC-Law
182
c.
The reference to the "existing procedures in force" in the EC-Law
182
d.
Conflicts between the Internal Rules and the ICCPR
183
3.
In camera hearings at the pre-trial stage
183
a.
The Internal Rules relating to in camera hearings in the pre-trial stage
184
b.
ECCCC jurisprudence concerning closed pre-trial hearings
184
c.
Analysis
186
4.
In camera hearings at the trial stage
188
a.
The Internal Rules relating to publicity in the trial stage
188
b.
Decisions and general comments by the UN Human Rights Committee concerning closed trial and appellate hearings
188
c.
In camera hearings in the ECtHR case-law
189
d.
The procedural rules and jurisprudence of the-ad hoc tribunals and of the SCSL concerning closed hearings at the trial stage
190
e.
The statutory rules of the ICC and the SPSC
191
f.
Analysis
192
III.
Other confidentiality measures
195
1.
Confidentiality measures at the ECCC
195
a.
Confidentiality at the ECCC in the pre-trial stage
195
b.
Confidentiality at the ECCC in the trial and the appeals stage
196
2.
Confidentiality measures at the ad hoc tribunals and at the SCSL
196
3.
Confidentiality measures at the ICC and at the SPSC
198
4.
Analysis
199
IV.
Conclusion (Part A)
200
Part B: Protection of victims of sexual violence
201
I.
The concerns of victims of sexual violence
201
1.
The situation at the ad hoc tribunals and at the ECCC
201
2.
Khmer Rouge policies and the commission of sexual violence crimes
202
a.
The practice of forced marriages as part of the attack on the civilian population
202
b.
The commission of rape outside and in the context of forced marriage
203
3.
The scale of sexual violence crimes under the Khmer Rouge
204
4.
Secondary victimization, of victims of sexual violence
205
II.
Special evidentiary rules
206
1.
No corroboration of the victim's testimony required
206
a.
The procedural rules of the ad hoc tribunals
206
b.
The procedural rules of the ICC and the SPSC
207
c.
Analysis
207
2.
Exclusion of consent as a defense
208
a.
The procedural rules of the ad hoc tribunals and of the SPSC
208
b.
The procedural rules of the ICC
208
c.
Analysis
209
3.
Inadmissibility of evidence regarding the victim's prior sexual conduct
211
a.
The procedural rules of the ad hoc tribunals
211
b.
The procedural rules of the ICC and the SPSC
211
c.
Analysis
211
III.
Other measures to protect vulnerable witnesses
212
1.
Limiting the scope of questions addressed to witnesses
212
2.
In camera hearing and the use of screens
214
3.
Employment of women and court staff with gender expertise
214
IV.
Conclusion (Part B)
215
Part C: The use of technical measures to protect witnesses in the proceedings
217
I.
Differences between one and two-way closed circuit television and introduction to the ECCC legal framework
217
1.
Description of the different systems of closed circuit television
217
2.
The use of video technology at the ECCC
218
II.
One-way closed-circuit television
218
1.
Procedural rules and jurisprudence by the ICTY concerning one-way CCTV
219
2.
Procedural rules and jurisprudence of the ICC, the SCSL and the SPSC concerning one-way CCTV and the use of screens
220
3.
Analysis
220
a.
Reasons for the use of one-way closed-circuit television
220
b.
Balancing of interests
221
c.
The use of screens as an alternative method
222
III.
Two-way closed circuit television ("video-link testimony")
223
1.
Procedural rules and jurisprudence of the ICTY
223
2.
Procedural rules and jurisprudence of the ICTR
224
3.
Procedural rules and jurisprudence of the ICC
226
4.
Analysis
227
a.
Reasons for the use of video-link testimony
227
b.
Balancing of interests
228
c.
Conclusion
230
IV.
Conclusion (Part C)
230
Part D: Protection against self-incrimination and safe conduct
233
I.
Protection against self-incrimination
233
1.
Extension of the privilege to witnesses
233
2.
Different models applied in common and civil law jurisdictions
234
3.
The situation at the ECCC
234
4.
The legal norms and jurisprudence of the ad hoc tribunals
235
5.
The system applied at the ICC
236
6.
Analysis
236
II.
Safe conduct
237
1.
ECCC legal framework
237
2.
Procedural rules and jurisprudence of the ad hoc tribunals and of the ICC
237
3.
Analysis
238
III.
Conclusion (Part D)
239
Part E: The role of the Witness/Expert Support Unit at the ECCC
241
I.
Establishment of the Witnesses/Experts Support Unit
241
II.
Tasks attributed to the WESU
242
1.
Pre-trial protection 243
a.
Providing safety and security to victims and witnesses
243
b.
Organization of victims' and witnesses' stay at the tribunal
245
c.
Information provided to victims and witnesses
245
2.
Protection during the proceedings 246 a)Protection from reprisals
246
b.
Medical and psychological counseling
246
3.
Post-trial protection 247
a.
Providing safety and security to victims and witnesses
247
b.
Witness relocation
248
c.
Domestic witness protection unit
249
III.
Implications for the rights of the accused
249
IV.
Conclusion (Part D)
250
Summary of Title III
253
General conclusion
254