Journal of
Law and Conflict Resolution

  • Abbreviation: J. Law Conflict. Resolut
  • Language: English
  • ISSN: 2006-9804
  • DOI: 10.5897/JLCR
  • Start Year: 2009
  • Published Articles: 102

Full Length Research Paper

Internal rules of the extraordinary chambers in the courts of Cambodia (ECCC): Setting an example of the rule of law by breaking the law?

Stan Starygin
UN House Deloitte Tower, National Capital District, Port Moresby Papua New Guinea.
Email: [email protected]

  •  Accepted: 26 September 2010
  •  Published: 28 February 2011

Abstract

This paper encapsulates an in-depth examination of the legality of the authority invoked by the Extraordinary Chambers in the Courts of Cambodia (ECCC) to create a set of rules of procedure and evidence known as the Internal Rules (IRs). In the void of public information pertaining to the ECCC’s rationale for creating the IRs, this paper, in part, seeks to reconstruct the relevant judicial arguments and, to the greater extent, focuses on answering the question of which of the arguments put forward during the adoption process of the IRs should have been but were not entertained and accepted by the judicial panel to ensure the legality of the actions associated with the creation of the IRs. To this end, the paper extracts a statutory test which is used as the litmus test of the provisions of the IRs analyzed throughout the narrative. The application of this test, in the end, results in the separation of the provisions of the IRs ab initio identified as suspect into those for the adoption of which authority exists at the international level and those which the ECCC has invented ultra vires the law on the  establishment of the ECCC and applicable international standards.

 

Key words: Extraordinary chambers in the courts of Cambodia (ECCC), hybrid tribunals, ultra vires actions, internal rules (IRs), rules of procedure and evidence (RPE), international criminal law.