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Naidu, Natasha --- "Supermajority At The ECCC: The Imbalance Between Accountability And Sovereignty" [2018] UNSWLawJlStuS 8; (2018) UNSWLJ Student Series No 18-08


SUPERMAJORITY AT THE ECCC: THE IMBALANCE BETWEEN ACCOUNTABILITY AND SOVEREIGNTY

NATASHA NAIDU[1]*

I INTRODUCTION

The supermajority voting rule (‘supermajority’) at the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) is a flawed mechanism that presents serious concerns for fair trial rights and illustrates the tension between the two competing primary interests of international criminal justice: state sovereignty and accountability for international crimes.[1] The supermajority voting rule requires that decisions of each chamber at the ECCC must be reached by an affirmative vote of a simple majority of judges plus one.[2] Because the chambers of the ECCC are staffed by a simple majority of Cambodian judges, the supermajority rule means that at least one international judge must support every decision that the chambers make.[3] There are no other hybrid or internationalised tribunals that have adopted a supermajority voting model.[4]

In this essay, I begin by introducing the ECCC. I then detail the negotiation history of supermajority and outline supermajority in practice in cases 001/002 and cases 003/004. Next, I scrutinise the concerns that supermajority presents for fair trial rights, focusing on the right to appeal and the right to a trial before an impartial tribunal. Finally, I evaluate how effectively supermajority balances what Williams identifies as the primary interests of international criminal justice: state sovereignty and accountability for international crimes.[5] I will conclude that the failure to reach supermajority in cases 003/004 has resulted in a procedural deadlock which has allowed powerful stakeholders, like the Cambodian Prime Minister, to retain a high degree of sovereignty over the court, interfering with due process. Architects of future internationalised tribunals should note that similar politically-negotiated mechanisms are vulnerable to being manipulated in the interests of powerful stakeholders.

II THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

The ECCC is an internationalised tribunal established in 2001 by the RGC and supported by the UN. The mandate of the ECCC is to prosecute the senior leaders and those most responsible for the crimes committed during the period of Democratic Kampuchea (‘DK’) between 1975 and 1979.[6] Here, I adopt Williams’ definition of the ECCC as an ‘internationalised’ tribunal because it is established by a domestic law and therefore an institution that ‘forms part of the Cambodian legal order’.[7]

III HISTORY OF THE SUPERMAJORITY VOTING RULE

A Negotiation History

The supermajority voting rule is a product of the negotiations on the establishment of the ECCC and was a politically necessary compromise between the RGC and the UN.[8] The dispute over whether the chambers of the ECCC would be majority Cambodian or international resulted in a deadlock between the RGC and the UN.[9] Wanting to retain control and sovereignty over the ECCC, Cambodian Prime Minister Hun Sen insisted that the chambers have a majority of Cambodian judges. Fearing judicial bias and domestic political interference, the UN insisted on a majority of international judges.[10] Therefore, US diplomats proposed supermajority as a way of satisfying Hun Sen’s demand for a Cambodian majority while safeguarding against the negative effects of domestic political interference by requiring the agreement of one international judge for a decision to be reached.[11] The supermajority compromise allowed the RGC and UN to agree on the establishment of the ECCC.

B Supermajority and Personal Jurisdiction

Next, it is pertinent to explore the operation of supermajority in the cases before the ECCC, especially with regards to the personal jurisdiction of the accused. The personal jurisdiction of the ECCC was another notable point of contention during negotiations. Hun Sen advocated to restrict the scope of personal jurisdiction to include only four or five of the senior leaders of the Khmer Rouge.[12] Conversely, the UN pushed to expand personal jurisdiction to both senior leaders and others ‘most responsible’ for the DK atrocities.[13] While the preamble of the Internal Rules states that both senior leaders and those most responsible are within the personal jurisdiction of the court,[14] this disagreement was never fully resolved during negotiations. Both sides reasoned that interpreting personal jurisdiction was a question for the judiciary.[15] The underlying tension about personal jurisdiction has manifested in cases 003/004.

1 Cases 001 and 002

The supermajority voting rule did not present a serious procedural challenge in cases 001/002. This is because the personal jurisdiction of the accused in cases 001/002 was relatively uncontroversial. All suspects had been widely discussed during the negotiations between the RGC and UN as potential suspects.[16] Case 002 involved four individuals that were part of a list of eight ‘ringleaders’ that Hun Sen had accepted would fall within the definition of ‘senior leader’ at the ECCC.[17] Hun Sen also never objected to the trial of Duch, the former head of the S-21 security centre, who was held to be amongst those ‘most responsible’ for DK atrocities.[18] Aside from a partial dissent as to sentencing length in Duch’s appeal judgment,[19] the trial and appeal judgments in cases 001/002 have been delivered by a unanimous bench.[20]

2 Cases 003 and 004

In sharp contrast, the supermajority voting rule has created a procedural deadlock at the pre-trial stage in cases 003/004. Cases 003/004 involve individuals who, while still considered ‘senior leaders and/or those most responsible’ by the International Co-Prosecutor,[21] are of comparably lower rank than those in cases 001/002[22] and were not explicitly discussed during the negotiations. Hun Sen has been notoriously opposed to the case 003/004 investigations, perceiving it as the UN overstepping its mandate in Cambodia, and stating that ‘civil war’ will ensue if the investigations continue.[23] Unsurprisingly, the national side of the ECCC has also been firmly opposed to the 003/004 investigations.[24] For example, when the Co-Prosecutors disagreed over the opening of investigations into case 004, the Pre-Trial Chamber (‘PTC’) also split, with the national judges voting against the opening of new investigations and the international judges voting in favour.[25] Unable to reach supermajority, the Internal Rules dictated that the order must ‘stand’[26] and, by default, the investigations in case 004 opened.[27]

Since the default opening of the investigations in cases 003/004, the national judges of the PTC have routinely refused to consider the substance of appeals put before the Chamber. This has resulted in a procedural deadlock between the national and international judges. In the next Part, I analyse supermajority at the pre-trial stage in case 004/2 in order to unpack the impact of this procedural deadlock and illustrate the concerns for fair trial rights that supermajority presents.

IV SUPERMAJORITY AND FAIR TRIAL RIGHTS

The supermajority voting rule is a unique innovation of the ECCC which attempts to balance the competing interests of international criminal justice. In this Part, while celebrating the creative spirit of such an innovation,[28] I scrutinise the violations of fair trial rights that supermajority presents in the pre-trial stage of case 004/2. I focus on the right to appeal and the right to trial before an impartial tribunal.

A Right to Appeal

The right to appeal pre-trial decisions at the ECCC is set out in Internal Rule 74. Specifically, Internal Rule 74(3)(b) allows the accused a right to appeal to the PTC against decisions of the Co-Investigating Judges (‘CIJ’) that deny requests for investigative action. Domestically, Cambodian criminal law provides for an ‘extensive’ appellant system[29] including a right to appeal against interlocutory judgments in particular circumstances.[30] Internationally, all of the ad hoc tribunals, internationalised tribunals, and the International Criminal Court allow for interlocutory or pre-trial appeals against certain decisions.[31] Therefore, the accused in cases 003/004 have a right to appeal pre-trial decisions to the PTC.

Here, I argue that the supermajority voting rule renders the right to appeal ineffectual at the pre-trial stage of cases 003/004. In case 004/2, the defence filed 26 motions and appeals before the PTC.[32] The PTC unanimously dismissed eight of these motions and appeals as inadmissible.[33] The PTC was unable to reach supermajority in five motions and appeals, and thus no decision was reached.[34] Finally, the PTC dismissed 13 motions and appeals.[35] In these 13 motions and appeals, the international PTC judges upheld some appeals, partially upheld others, and dismissed many. However, in separate opinions, the national judges dismissed all appeals on the basis that the accused did not fall within the personal jurisdiction of the ECCC.[36] These separate opinions did not engage with the substance of the appeal.[37] In appeals that were upheld fully or partially by the international judges, supermajority failed. Accordingly, and contrary to the order of the international PTC judges, the motion or requested investigative action under appeal was not conducted.[38] In appeals that were dismissed by the international judges, supermajority was technically reached, and again motion or the requested investigative action under appeal was not conducted.[39]

The operation of supermajority at the PTC has resulted in a procedural deadlock,[40] where the outcome of any appeal is that nothing happens. This renders the right of pre-trial appeal ineffectual and leaves the national CIJ with unchallenged discretion as to the investigative actions taken. Accordingly, I question whether the right to appeal in the pre-trial stage of cases 003/004 is only guaranteed in form and not in substance. Future architects of internationalised tribunals should work to ensure that the substantial participation of both national and international judges is guaranteed. Supermajority has rendered the right of appeal ineffectual in the pre-trial stage of cases 003/004.

B Right to Trial before an Impartial Tribunal

The right to trial before a competent, independent, and impartial tribunal is enshrined in article 14 of the International Covenant on Civil and Political Rights[41] which applies directly to the ECCC by virtue of the Cambodia Constitution,[42] the ECCC Law,[43] and the UN Agreement.[44] Judicial independence and impartiality is central to the right to trial before an impartial tribunal.[45] Independence is the ‘ability of a judge to determine a matter free from improper influence’.[46] Impartiality means that a judge shall be free of both actual bias and the appearance of bias.[47]

I argue that supermajority has weakened the right to trial before an impartial tribunal at the ECCC. Supermajority was introduced during negotiations to address the UN’s fear of judicial bias and domestic political interference among the Cambodian judges.[48] Therefore, supermajority is premised on the assumption that the national judges are not independent because it safeguards against the biased actions of national judges.[49] This presumption is flawed in a number of respects. First, a voting rule based on the presumption of judicial bias undermines the concept of ensuring against the ‘appearance of bias’ at the ECCC.[50] Second, supermajority mistakenly assumes that the international judges are inherently free of bias or political motives.[51] The flaws of this assumption can be illustrated with reference to International CIJ Blunk, who originally joined together with the NCIJ to close the investigation in case 003.[52] Finally, supermajority does not safeguard against national judges who act under political influence by stalling cases through refusing to participate meaningfully in the process.[53] In these ways, supermajority has weakened the right to trial before an impartial tribunal for the accused in cases 003/004.

Here, I echo the assertion of Richard Rodgers that instead of safeguarding against judicial bias of the national judges, supermajority has instead entrenched it.[54] This is because supermajority is a band-aid solution for a deeply systemic problem of judicial bias and political interference with the Cambodian judges. It embeds the expectation that political interference will be part of the court’s process.[55] By instituting supermajority as a ‘systemic safeguard’, the UN has been able to side-step problems of judicial bias without addressing them directly.[56] As is evident from cases 003/004, this is no solution. Drawing on the supermajority experience, future architects of internationalised tribunals should understand that there can be no work-around rule for a lack of judicial independence.[57] While Hobbs expresses a strong desire for a majority of international judges at internationalised tribunals,[58] I argue that a national majority remains viable with programs that train and strengthen independence among the national judiciary.

V SUPERMAJORITY AND THE IMBALANCE BETWEEN ACCOUNTABILITY AND SOVEREIGNTY

In this Part, I return to an evaluation of how supermajority has created an imbalance between the interests of state sovereignty and accountability in cases 003/004. The recent advent of hybrid and internationalised tribunals is thought to better balance the tension between the internatioanl criminal justice system’s competing interests of state sovereignty and accountability for atrocities.[59] By being situated within the state and involving national staff, hybrid and internationalised tribunals allow the affected state increased involvement in the ‘design, establishment and operation of the tribunal’.[60] This is less intrusive on the state’s sovereignty.[61] Simultaneously, international involvement allows for accountability by providing funding, legal expertise, and implementing international standards of law and procedure.

The negotiation history of supermajority illustrates the fundamental tension between the interests of Cambodian state sovereignty and the international community’s desire to achieve accountability for the DK atrocities. Therefore, supermajority is a mechanism that attempts to balance the international criminal justice system’s competing primary interests within the structure of an internationalised tribunal. Through evaluating how effectively supermajority has balanced these interests, I will conclude that the procedural stalemate which results from a failure to reach supermajority in cases 003/004 has allowed for powerful stakeholders, like the Cambodian Prime Minister, to retain a high degree of sovereignty over the court. This is likely to result in a lack of accountability for the accused in cases 003/004.

A Accountability

International criminal law developed from the desire of the international community to end impunity for crimes that shocked the moral conscience of the nations. Achieving accountability for perpetrators of international crimes is arguably the primary interest of international criminal justice. Indeed, the primary mandate of a criminal trial, including an international criminal trial, is to try a specific person for specific conduct in the pursuit of accountability. However, an examination of supermajority at the pre-trial stage of cases 003/004 reveals that it is the very mechanism by which the cases may be prevented from proceeding. This is because supermajority has resulted in a procedural deadlock between the national and international judges, whereby the accused are unlikely to be indicted to trial by a supermajority of judges.

In case 004/2, at the time of writing, the accused has been simultaneously indicted to trial and dismissed by the CIJs in separate and conflicting closing orders.[62] This is because the International and National CIJs have disagreed over whether the accused falls within the personal jurisdiction of the court.[63] An appeal against the indictment or dismissal by either the Co-Prosecutors or defence will be heard before the PTC.[64] If the international PTC judges conclude that the accused falls within the personal jurisdiction of the court, the PTC will fail to reach supermajority. The Internal Rules do not provide for the procedure to be followed where the PTC fails to reach supermajority on separate closing orders.[65] However, considering the unwavering opposition of the national judges to case 004/2, it is difficult to envisage a situation where the accused is dismissed or indicted to trial by a supermajority of judges.

This procedural stalemate will likely prevent trials in cases 003/004 from commencing. Therefore, accountability for the accused in 003/004 will not be achieved because of the supermajority voting rule. That the accused brought before the ECCC could be left with neither a final indictment nor proper dismissal denies due process and renders the proceedings a ‘costly and time-consuming charade’.[66] Architects of future internationalised tribunals should ensure that due process from charging to indictment or dismissal, and then to conviction or acquittal, is guaranteed. That supermajority could prevent the ECCC from achieving accountability in cases 003/004 is a serious concern.

B Sovereignty

The international community recognises sovereignty as ‘the most fundamental right a nation can assert’.[67] Sovereignty is the autonomy of a state to manage its own internal affairs free from outside interference.[68] The imposition of criminal sanctions on a national of a state through ICL is a substantial imposition on sovereignty. Therefore, a primary interest of international criminal justice is to satisfy a state’s desire for retained sovereignty.[69]

In attempting to achieve the delicate balance between sovereignty and accountability, I argue that supermajority has allowed powerful stakeholders, like Hun Sen, to retain a high degree of sovereignty over the court. This has interfered with due process. For example, Hun Sen has been opposed to the investigations in cases 003/004, threatening that ‘civil war’ will ensue if trials proceed.[70] Simultaneously, the national PTC judges have continually refused to participate meaningfully in appeals in cases 003/004. This has resulted in a repeated failure to reach supermajority. Due to this failure, the national PTC judges have stalled the cases through procedural deadlock. The fine line between powerful stakeholders like Hun Sen retaining sovereignty and asserting control over the court has been blurred. Here, supermajority has not safeguarded against political goals being achieved through procedural stalemate between the national and international judges.[71]

Architects of future hybrid and internationalised tribunals should be aware that politically-negotiated mechanisms similar to supermajority can be vulnerable to manipulation in the interests of powerful stakeholders. The desire for sovereignty is also a push for retained control. Supermajority in cases 003/004 shows us that when the desire to balance sovereignty and accountability weighs heavily in favour of sovereignty, accountability can be lost.

VI CONCLUSION

The supermajority voting rule is a unique political compromise of the ECCC that presents serious concerns for fair trial rights and illustrates the competing tension between international criminal justice system’s primary interests of state sovereignty and accountability. While celebrating the innovation of supermajority, I have scrutinised the concerns that supermajority presents for fair trial rights. Specifically, supermajority renders the right to appeal ineffectual in the pre-trial stage of cases 003/004. Further, supermajority weakens the right to trial before a competent, independent, and impartial tribunal. Instead of safeguarding against a lack of judicial independence, supermajority has entrenched expectations of political interference within the court’s process. Finally, I have concluded that supermajority does not effectively balance the competing interests between Cambodian sovereignty and accountability for international crimes. Indeed, it is the very mechanism by which cases 003/004 will likely result in neither indictment nor dismissal by supermajority, and thus a lack of accountability. The procedural deadlock between the national and international judges that results from a failure to reach supermajority has allowed powerful stakeholders, such as the Cambodian Prime Minister, to retain a high degree of sovereignty over the ECCC. This has interfered with due process in cases 003/004. Architects of future internationalised tribunals should learn from supermajority that similar politically-negotiated compromises are vulnerable to manipulation in the political interests of powerful stakeholders.


* Fifth year UNSW Law/Arts student and previous intern at the ECCC. The arguments herein do not represent the views of any organ of the ECCC. All mistakes are my own.

[1] Sarah Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Hart Publishing, 2009) 58.

[2] Law on the Establishment of Extraordinary of Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 10 August 2001, NS/RKM/0801/12 (entered into force 10 August 2001) art 14 (‘ECCC Law’).

[3] Ellen Emille Stensrud, ‘New Dilemmas in Transitional Justice: Lessons from the Mixed Court in Sierra Leone and Cambodia’ (2009) 46 Journal of Peace Research 5, 5.

[4] Sylvia de Bertodano, ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 285, 289.

[5] Williams, above n 1, 58.

[6] ECCC, Internal Rules (Rev 9) (adopted 16 January 2015) Preamble (‘IR’).

[7] Williams, above n 1, 293.

[8] de Bertodano, above n 4, 290.

[9] Brad Adams, ‘Cambodia’s Judiciary’ in Jaya Ramji and Beth van Schaack (eds), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts 131.

[10] de Bertodano, above n 4, 287.

[11] Tomas Hamilton and Michael Ramsden, ‘The Politicisation of Hybrid Courts: Observations from the Extraordinary Chambers in the Courts of Cambodia’ (2014) 13 International Criminal Law Review 115, 127.

[12] John David Ciociari and Anne Heindel (eds), Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Michigan: University of Michigan Press, 2014) 29 (‘Hybrid Justice’).

[13] Ibid 29.

[14] IR, preamble.

[15] Hybrid Justice, above n 12, 29.

[16] Steve Heder, ‘A Review of the Negotiations Leading to the Establishment of the Personal Jurisdiction of the Extraordinary Chambers in the Courts of Cambodia’ (London, 1 August 2011).

[17] Ibid 17.

[18] Ibid.

[19] Co-Prosecutors v Kaing Guek Eav (Appeal Judgment) (ECCC, SCC, Case 001/18-07-2007-ECCC/SC, 3 February 2012) 320, 323-39.

[20] Co-Prosecutors v Kaing Guek Eav (Judgment) (ECCC, TC, Case 001/18-07-2007-ECCC/TC, 26 July 2010) 244; Co-Prosecutors v Nuon Chea and Khieu Samphan (Case 002/01 Judgment) (ECCC, TC, Case 002/19-09-2009-ECCC/TC, 7 August 2014) 622; Co-Prosecutors v Nuon Chea and Khieu Samphan (Appeal Judgement) (ECCC, SC, Case 002/19-09-2009-ECCC/SC, 23 November 2016) 519.

[21] Co-Prosecutors v [Redacted] (Co-Prosecutor’s Third Introductory Submission) (ECCC, PTC, Case 004/07-09-2009-ECCC/OCIJ, 20 November 2008).

[22] Hybrid Justice, above n 12, 171.

[23] See, eg, Kuch Naren, ‘Hun Sen Warns of Civil War if ECCC Goes Beyond “Limits”’, The Cambodia Daily (Phnom Penh), 27 February 2015.

[24] See ECCC, ‘Press Release from the International Reserve Co-Investigating Judge’ (Press Release, 19 March 2012) <https://www.eccc.gov.kh/en/articles/press-release-international-reserve-co-investigating-judge>.

[25] Hybrid Justice, above n 12, 177.

[26] IR r 77(13)(a).

[27] Hybrid Justice, above n 12, 177.

[28] Laura A Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295, 310.

[29] Lily O’Neill and Goran Sluiter, ‘The Right to Appeal a Judgment of the Extraordinary Chambers in the Courts of Cambodia’ [2009] MelbJlIntLaw 32; (2009) 10 Melbourne Journal of International Law 596, 607.

[30] Code of Criminal Procedure 2007 (Cambodia) art 421.

[31] Goran Sluiter et al (eds), International Criminal Procedure: Principles and Rules (Oxford: Oxford University Press, 2013) 1000.

[32] Co-Prosecutors v [Redacted] (Closing Order (Indictment) Annex II – Motions and Requests Filed with the CIJs) (ECCC, OCIJ, Case 004/2, 16 September 2018).

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] See, eg, Co-Prosecutors v [Redacted] (Consideration on Appeal against Decision on [Redacted] Fifth Request for Investigative Action) (ECCC, PTC, Case 004/2 (PTC24), 16 June 2016) 7–10 (‘Consideration on the Fifth’); Co-Prosecutors v [Redacted] (Decision on Appeal against the Decision on [Redacted] Sixth Request for Investigative Action) (ECCC, PTC, Case 004/2 (PTC 33), 16 March 2017) 7–10; Co-Prosecutors v [Redacted] (Decision on Appeal against Decision on [Redacted] Seventh Request for Investigative Action) (ECCC, PTC, Case 004/2 (PTC 34), 3 April 2017) 6–7; Co-Prosecutors v [Readcted] (Decision on Appeal against the Decision on [Redacted] Tenth Request for Investigative Action) (ECCC, PTC, Case 004/2 (PTC36); ICL 1803 (ECCC 2017), 26 April 2017) 5–6 (‘Decision on the Tenth’); Co-Prosecutors v Redacted (Decision on Appeal against Decision on [Redacted] Twelfth Request for Investigative Action) (ECCC, PTC, Case 004/2 (PTC35); ICL 1804 (ECCC 2017), 16 March 2017) 5–6.

[37] Ibid.

[38] See, eg, Consideration on the Fifth, above n 36.

[39] See, eg, Decision on the Tenth, above n 36.

[40] Duncan McCargo, ‘Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribunal’ (2011) 87 International Affairs 613, 623.

[41] 16 December 1966, 999 UNTS 171.

[42] Constitution of the Kingdom of Cambodia 1993 (‘Cambodia Constitution’) art 31.

[43] ECCC Law, art 33(new).

[44] Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 6 June 2003, 2329 UNTS 117 (entered into force 29 April 2005) (‘UN Agreement’), arts 12, 13.

[45] Hanna Bertelman, ‘International Standards and National Ownership - Judicial Independence in Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia’ (2010) 79 Nordic Journal of International Law 341, 341.

[46] Suzannah Linton, ‘Safeguarding the Independence and Impartiality of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 327, 328.

[47] Ibid.

[48] John D Ciorciari and Anne Heindel, ‘Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal’ (2014) 35 Michigan Journal of International Law 369, 403.

[49] Hybrid Justice, 193.

[50] Ibid.

[51] Ciorciari and Heindel, above n 46, 404.

[52] Hybrid Justice, 188.

[53] Hamilton and Ramsden, above n 11, 137.

[54] Hybrid Justice, 190.

[55] Ibid 265.

[56] Ibid 190.

[57] Ibid.

[58] Harry Hobbs, ‘Towards a Principled Justification for the Mixed Composition of Hybrid International Criminal Tribunals’ (2017) 39 Leiden Journal of International Law 177, 195-6.

[59] Williams, above n 2, 58.

[60] Ibid 59.

[61] Ibid.

[62] ‘Co-Investigating Judges issue two separate closing orders in case against Ao An No 004/2/07-09-2009-ECCC/OCIJ’ (Media Release, 16 August 2018).

[63] Ibid.

[64] IR r 72(2).

[65] Co-Prosecutors v [Redacted] (Decision on Ao An’s Urgent Request for Disclosure of Documents relating to Disagreements) (ECCC, ICJ, Case 004/2, 18 September 2016) 3 [15].

[66] de Bertodano, above n 4, 290.

[67] Jackson Nyamuya Maogoto, State Sovereignty and International Criminal Law: Versailles to Rome (Transnational Publishers, 2003) 5.

[68] Ibid.

[69] Williams, above n 2, 59.

[70] Naren, above n 22.

[71] Hamilton and Ramsden, above n 11, 137.


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