This paper 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 impute criminal liability on Khmer Rouge leaders for acts committed between 1975-79. Since international criminal law was not as fully developed in the 1970s, some accused 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 early-2011 rulings dismissed the defendants’ arguments and held that international law from 1975-79 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. However, these decisions, though correctly decided, are based on a flimsy legal foundation. The Pre-Trial Chamber relied on the jurisprudence of the post-World War II tribunals, which is notorious for its lack of clarity. These tribunals have also been plagued by allegations of “victor’s justice”, as they found German and Japanese commanders guilty of capacious, poorly defined crimes that were arguably created after the end of the war.
For these reasons, this paper argues that the Chamber should have instead 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 U.N. ad hoc tribunals and the ICC Rome Statute – towards greater protection of defendants from the sort of arbitrary justice imputed to the post-WWII cases. Counterintuitively, 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 Court’s legal stature and reputation for reasoned, impartial decision-making in light of persistent allegations of bias and corruption.
Available at: http://works.bepress.com/rehan_abeyratne/1/