Superior responsibility and the principle of legality at the ECCC
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George Washington international law review, Vol. 44, no. 1, 2012, p. 39-78
This article examines two recent decisions of the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in the broader context of whether it is fair to impose criminal liability on Khmer Rouge leaders for acts committed between 1975 and 1979. Since international criminal law was not as fully developed in the 1970s, some of the accused Khmer Rouge leaders argue that the principle of legality ("nullem crimen sine lege") bars many of the charges brought against them. In particular, they have argued that superior responsibility--a mode of liability that holds superiors responsible for the criminal acts of their subordinates--had not crystallized into a norm of customary international law by the 1970s. The Pre-Trial Chamber in two rulings in early 2011 dismissed the defendants' arguments and held that from 1975 to 1979 international law had recognized superior responsibility as a mode of criminal liability in a form sufficiently developed and accessible to the accused so as to satisfy the principle of legality. These decisions, though correctly decided, are based on a flimsy legal foundation. The Pre-Trial Chamber relied on the jurisprudence of post-World War II tribunals, which are notorious for their lack of clarity. These tribunals have also been plagued with allegations of "victor's justice," for finding German and Japanese commanders guilty of capacious, poorly-defined crimes that were arguably only recognized as crimes after the end of the war. For these reasons, this article argues that the ECCC should have based its decisions on Additional Protocol I to the Geneva Conventions of 1949 (1977), which more clearly defines superior responsibility and reflects broad consensus on the state of international law in the 1970s. Moreover, Additional Protocol I commenced an evolution in the law of superior responsibility--that has continued through the United Nations ad hoc tribunals and the International Criminal Court --toward greater protection of defendants from the sort of arbitrary justice imposed in the post-WWII cases. Counter-intuitively, relying on more recent statements of the law of superior responsibility would not only comply with the principle of legality, but would benefit the accused. Going forward, this approach would bolster the ECCC's legal stature and reputation for reasoned, impartial decision-making in light of persistent allegations of bias and corruption.
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