The International Criminal Court and Cambodia?
The International Criminal Court (ICC) was established by the Rome Statute and came into force on 1 July 2002. The ICC is based in The Hague, Netherlands. The International Criminal Court has become operational since that time. It was established to try the international crimes of genocide, crimes against humanity, and war crimes. The Court is an independent institution and is not part of the United Nations, but it maintains a cooperative relationship with the U.N.The ICC’s competence is limited to individuals only. At the same time, there are no limitations impeding the ICC from investigating the wrongdoing of any individual, even a Head of State. The Rome Statute recognizes that for the crimes over which the ICC has jurisdiction, there is no immunity, no statute of limitations and no defense of superior orders.
The ICC has jurisdiction when crimes have been committed by a citizen of a member state, or on the territory of a member state; or the UN Security Council refers a situation to the ICC; or a state that is not party to the Statute makes an ad hoc declaration for the Court to have jurisdiction. However, the ICC can only prosecute people who committed the crimes after the date when the Rome Statute came into effect.
Cambodia signed the Rome Statute on October 23, 2000, and ratified it on January 7, 2002. According to the Rome Statute itself, it then came into effect for Cambodia on July 1, 2002, and became binding on the nation to carry out its statutory obligations in good faith. Cambodia is the only nation in SE Asia that has ratified the Rome Statute. However, since the crimes of the Khmer Rouge were committed in 1975-1979, the court has no jurisdiction to try those cases and cannot prosecute members of the Khmer Rouge for those crimes. Part of the process of complying with the Rome Statute is revising the national law to effectively reflect the standards of international criminal law which are set forth in the Rome Statute. The idea is that nations should be responsible for trying their own criminals and they should want to have jurisdiction in their own courts over these kinds of crimes so that they can try them domestically. In order to accomplish this, the nation must incorporate all of the crimes defined in the Rome Statute into its own criminal law.
This process is currently underway by the Ministry of Justice and the Council of Ministers of Cambodia. A recent draft of the criminal penal code contained definitions for genocide, crimes against humanity, and war crimes as well as other welcome amendments to Cambodian criminal law.
The Extraordinary Chambers of the Courts of Cambodia was established by an agreement between the United Nations and the Royal Government of Cambodia to have jurisdiction over the crimes committed by the Khmer Rouge. The Law for the Establishment of the ECCC also contains these definitions of crimes and many of the international criminal law standards. However, it is just as important that they be implemented into Cambodian law so that Cambodian courts will have jurisdiction over those cases, should they arise in the future.
Article 31 of the Cambodian Constitution guarantees that all Khmer citizens will be given equal human rights according to international human rights agreements. However, it includes the caveat that, “exercise of such rights and freedoms shall be in accordance with the [Cambodian] law.” In order for these rights and standards of international law to be available to Khmer citizens before Cambodian courts, they must be written into the Cambodian law itself.
