The First Judgment at the (un)Extraordinary Chambers in Cambodia and the question of Crimes against Humanity

The Extraordinary Chambers in the Courts of Cambodia (ECCC), which started functioning in 2006 after lengthy negotiations to try the (remaining) leaders of the Khmer Rouge Regime, issued its first Judgment today in the trial of KAING Guek Eav alias "Duch", the former commander of the infamous S21 prison.

The Judgment was going to have a tough time to maintain the drama of the end of the trial which saw some  extraordinary (no pun intended) bickering between the co-counsels, with one of them being fired and the other suddenly launching in a virulent challenge to the jurisdiction and the legitimacy of the Chamber, despite apparently not having raised the issue previously, and then creating some confusion on the plea entered by his client.

Various comments can be made on this Judgment, for example on victim reparations, and on sentencing. I'd like to briefly focus on its discussion of crimes against humanity.

Indeed, One question which was going to be an issue from the start was the content of customary law at the time the crimes were committed, more specifically in relation to crimes against humanity and the link with the existence of an armed conflict. If today, there is really no doubt, after the case-law of the ad hoc tribunals and the Statute of the ICC, that crimes against humanity can be committed in time of peace, things are not so clear for1975-1979, which is the scope of the temporal jurisdiction of the ECCC.

The Chamber finds that the nexus was no longer required in 1975. Maybe it is right, but it is not convincing. Indeed, the reasoning is just as poor as it was in Tadic. I reproduce the (concise) argumentation of the Chamber for the sake of clarity:

291. In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity.

292. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period.

Let's analyse this in order:

• Control Council Law N°10: Yes, the definition of crimes against humanity does not include the nexus with armed conflict (Article II.1.a). However, article I makes the London agreement, which enacts the Nuremberg Statute and which does contain the nexus, an "integral part of this Law". So it is not that clear. Especially as the Nuremberg Principles adopted by the ILC reproduce the Charter of Nuremberg, with the armed conflict nexus, not Control Council Law N°10...
• 1948 Genocide Convention: even if conceptually, I'm in favor of considering genocide as a sub-category of Crimes against Humanity, it was not legally conceived in this way at the time. Genocide is a discrete crime and the fact that the armed conflict nexus is not contained in the definition of genocide is not relevant for knowing if it is still contained in the definition of crimes against humanity. And even if one considers that Genocide is a sub-category of crimes against humanity, the disappearance of the nexus for one form of a crime, does not logically necessarily indicate disappearance for the totality.
• 1954 Code of Crimes: does not even mention crimes against humanity!
• 1968 Convention on non applicability of Statute of limitations: more tricky, as it, at the same time, says that it can be committed both in time of war and in time of peace, and says that it is defined by the Nuremberg Charter which does include the nexus. 
• 1973 Convention on Apartheid: Same as for genocide, the absence of the nexus for one occurrence of crimes against humanity, does not logically imply the absence of the nexus for all crimes against humanity. You could even argue that it the specific nature of Apartheid that justifies the exclusion of the nexus. Also, the Convention only came into force in 1976, so one can wonder at the customary nature of the content of the treaty at that point in time...  
• Tadic: The Appeals Chamber in Tadic deals with the issue in the same way. Affirming with little evidence that the nexus no longer exists. More specifically, it considers that it "was peculiar to the jurisdiction of the Nuremberg Tribunal" and that "there is no logical or legal basis for this requirement" (§140). For one, it doesn't explain why it was "peculiar". Second of all, the question of the "logical" basis is not relevant for a court of law the function of which is to apply the law, not question its logic. I could point out several instances of lack of logic in the drafting of the ICC Statute, but it doesn't mean that Judges should be allowed to change it as they see fit. And thirdly, linked to the second point, the "legal" basis is that it is in the law! The drafters of the Nuremberg Statute decided to put the nexus there, so that constitutes the legal basis for the nexus.
• ECHR and group of experts: nothing much to add to this, apart from 1) questioning the relevance of these statements for the ECCC and 2) pointing out that "may no longer have been relevant" and "appears to have been severed" hardly seems like strong enough evidence to rely on to establish the content of a customary norm with sufficient certainty as to conform with the principle of legality.

But even if one were to accept these references, what is notable is the absence of evidence relating to the traditional components of customary law. I was taught in university that you needed to establish both opinio juris and state practice in order to identify the existence of a customary rule, not international case law or pronouncements by experts. However, the expression "opinio juris" appears nowhere in the reasoning and there is no mention of state practice whatsoever at this point in the argumentation (Eichmann is given as the sole example of  State practice for prosecution of crimes against humanity earlier on in the Judgment). The ECCC therefore managed, and it is quite a feat, to be even less convincing than Tadic, which at least formally claimed that the nexus "has been abandoned in subsequent State practice with respect to crimes against humanity", without however quoting even one relevant national criminal code...

I suppose that after the slamming of JCE by the ECCC Pre-Trial Chamber in the Ieng Sary Case, I had unreasonable expectations, but it turns out that in fact, there is nothing extraordinary about the Extraordinary Chambers in the Courts of Cambodia...