The situation before the Extraordinary Chambers of the Court of Cambodia (ECCC) is different to the above mentioned tribunals insofar as the body of laws governing the forum came into effect much later: the Internal Rules of the ECCC were adopted in June 2007.115 Besides, the ECCC are not an international Court in the strict sense of that term:
The ECCC are based on agreement116 between the United Nations and the Royal
Government of Cambodia that has been implemented through the ECCC Law117
113 Or even as significant, see Bachrach, M. (2000). "The Protection and Rights of Victims." The International Lawyer 34: 7-21. At page 12.
. The Court is a national tribunal, located at the site of the crimes, but comparable in some
114 See equally McDonald, A. (2002). "Sierra Leone's shoestring Special Court." Revue Internationale de la Croix-Rouge 84(845): 121-143. At page 141.
115 See http://www.eccc.gov.kh/english/victims_unit.aspx; as to the history of the Court see Skilbeck,
Rupert. "Defending the Khmer Rouge." International Criminal Law Review 8 (2008): pp. 423-445.
116 See Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian Law of Crimes during the period of Democratic Kampuchea of 6 June 2003, http://www.eccc.gov.kh/english/cabinet/agreement/5/Agreement_between_UN_and_RGC.pdf. 117 See Law on the establishment of the Extraordinary Chambers in the Court of Cambodia for the
prosecution of crimes committed during the period of Democratic Kampuchea of 6 June 2003, NS/RKM/1004/006;
respects to an international criminal court. It may therefore be characterized as a “mixed court/tribunal”.118
A short review of the rights of victims before the ECCC is interesting insofar as the ECCC clearly does provide for participation rights for victims. The ECCC will, in contrast to national courts, also face the same problems as an international criminal court. For instance, a large number of victims will want to participate before the ECCC. Therefore the body of law emanating from the ECCC as well as the practice before the ECCC will also be instructive for the ICC.
The rights of victims before the ECCC are set out in the Code of Criminal Procedure of Cambodia (CPC) and the Internal Rules of the Court. Victims are awarded the right to participate in the proceedings as civil parties. Victims therefore are equal in status of the Prosecution and the Defence. Accordingly, victims have the right to be represented by a lawyer, to be present in the proceedings and to have access to the files. They may furthermore apply for evidence to be taken, ask questions and may make their claim for reparations at the same time as the criminal trial takes place. Ultimately they may also appeal the verdict.119
In a landmark decision of March 20th, 2008, the Pre Trial Chamber ruled on the conditions of victims’ participation and has awarded victim full participation rights during the hearings on appeals concerning provisional detention before the Pre Trial Chamber.120 Moving on from the general right to participate in the proceedings of Rule 23(3) of the Internal Rules, the Pre-Trial Chamber has stated that there is no need to show any special
118 See Cassese, Antonio.International Criminal Law. Oxford, Oxford Unitversity Press, 2nd edition, 2008. At page 333.
119 See Studzinsky, Silke. "Nebenklage vor den Extraordinary Chambers of the Courts of Cambodia (ECCC) - Herausforderung und Chance oder mission impossible?" Zeitschrift für internationale Strafrechtsdogmatik 1 (2009): pp. 44-50. At page 45. See also Boyle, David. "The Rights of Victims." Journal of International Criminal Justice 4(1) (2006): pp. 307-313. At pp. 308 et seq.; see also Skilbeck,
Rupert. "Defending the Khmer Rouge." International Criminal Law Review 8 (2008): pp. 423-445. At
page 432.
120 See Pre Trial Chamber, in the case of Nuon Chea, Decision on civil party participation in provisional detention appeals of 20 March 2008, Criminal Case File No. 002/19-09-2007-ECCC/OCIJ (PTC01).
interest in any stage of the proceedings.121 On the other hand it has tried to constrain the
right of victims to make personal statements.122
Overall victims have much more comprehensive rights before the ECCC than before the ICC.
It is therefore rewarding to have a short look at the practice of the ECCC. The ECCC has to cope with a massive shortfall of financial and personal resources for victim participation123, which is why the ECCC will be confronted with manifold restrictions. Of
2800 applications the ECCC has so far only accepted 28 victims as civil parties.124
The procedures before the ECCC have so far not reached an advanced stage so that practicality and implementation of victims‘ rights cannot yet be fully evaluated.
However, it is certain that the practice before the ECCC may not be ignored and may show the extent to which it is possible to have comprehensive rights for victim participation before an international criminal court.
The first Trial, which is expected to take place some time in 2009, will therefore to be watched closely.
121 Ibid. At para. 49.
122 See thereupon more comprehensively Studzinsky, Silke. "Nebenklage vor den Extraordinary Chambers of the Courts of Cambodia (ECCC) - Herausforderung und Chance oder mission impossible?"
Zeitschrift für internationale Strafrechtsdogmatik 1 (2009): pp. 44-50. At page 46, 47.
123 See Skilbeck, Rupert. "Defending the Khmer Rouge." International Criminal Law Review 8 (2008): pp. 423-445. At page 432.
124 See Studzinsky, Silke. "Nebenklage vor den Extraordinary Chambers of the Courts of Cambodia (ECCC) - Herausforderung und Chance oder mission impossible?" Zeitschrift für internationale Strafrechtsdogmatik 1 (2009): pp. 44-50. At pages 45, 46.