Search

Search form

Logo of Phnom Penh Post newspaper Phnom Penh Post - Memorandum of understanding on Khmer Rouge Tribunal

Memorandum of understanding on Khmer Rouge Tribunal

Memorandum of understanding on Khmer Rouge Tribunal

Articles of Cooperation Between the United Nations and the Royal Government of Cambodia

[in/Concerning] the Prosecution under Cambodian Law of Crimes Committed During the

Period of Democratic Kampuchea

Whereas the Secretary-General of the United Nations and the Prime Minister of Cambodia

have agreed to cooperate in the establishment of a Cambodian court to prosecute senior

leaders of Democratic Kampuchea responsible for serious violations of Cambodian and

international law committed between 17 April 1975 to 6 January 1979;

Now therefore the United Nations and the Royal Government of Cambodia have agreed

as follows:

Article 1

The Law on the Establishment of Extraordinary Chambers

The "Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia

for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea"

(hereinafter: ìthe Law on the Establishment of Extraordinary Chambersî), which has

been adopted by the Cambodian Legislature under the Constitution of Cambodia is subject

to parliamentary approval, shall determine the jurisdiction of the court, its organizational

structure and composition and the rights of the accused. This law and subsequent

amendments to it shall at all times be in full conformity with these articles. The

modalities of cooperation between the United Nations and the Royal Government of

Cambodia (hereinafter: ìthe Governmentî) are set out in Articles 2-28 below.

Article 2

Judges

  1. Cambodian judges, on the one hand and judges appointed by the Supreme Council

    of the Magistracy upon nomination by the Secretary-General of the United Nations

    (hereinafter: international judgesî), on the other, shall serve in each chamber.

  2. The composition of the chambers shall be as follows:
  3. The Trial Chamber: 3 Cambodian judges and 2 international judges.
  4. The Appeals Chamber: 4 Cambodian judges and 3 international judges.
  5. The Supreme Court: 5 Cambodian judges and 4 international judges.
  6. The judges shall be persons of high moral character, impartiality and integrity

    who possess the qualifications required in their respective countries for appointment

    to judicial offices. They shall be independent in the performance of their functions

    and shall not accept or seek instructions from any Government or any other source.

  7. In the overall composition of the chambers, due account should be taken of the

    experience of the judges in criminal law, international law, including international

    humanitarian and human rights law.

  8. The Secretary-General of the United Nations undertakes to forward a list of not

    more than 12 international judges from which the Supreme Council of the Magistracy

    shall appoint nine to serve as judges in the three chambers. Appointment of international

    judges by the Supreme Council of the Magistracy shall be made only from the list

    submitted by the Secretary-General.

  9. In the event of a vacancy of an international judge, the Supreme Council of the

    Magistracy shall appoint another international judge from the same list.

  10. The judges shall be appointed for the duration of the proceedings.
  11. In addition to the international judges sitting in the chamber and present at

    every state of the proceedings, the President of the Chamber may, on a case-by-case

    basis, designate from the list of nominees submitted by the Secretary-General, one

    or more alternate judges to be present at each stage of the trial, and to replace

    an international judge if that judge is unable to continue sitting.

Article 3

Decision-making

1. The judges shall attempt to achieve unanimity in their decisions. If this is not

possible, the following shall apply:

  1. A decision by the Trial Chamber shall require the affirmative vote of at least

    four judges;

  2. A decision by the Appeals Chamber shall require the affirmative vote of at least

    five judges;

  3. A decision by the Supreme Court shall require the affirmative vote of at least

    six judges.

2. Where there is no unanimity, the chamber's decision shall contain the views

of the majority and the minority.

Article 4

Investigating judges

  1. There shall be one Cambodian and one international judge serving as co-investigating

    judges. They shall be responsible for the conduct of investigations.

  2. The investigating judges shall be persons of high moral character, impartiality

    and integrity who possess the qualifications required in their respective countries

    for appointment to such a judicial office.

  3. The investigating judges shall be independent in the performance of their functions

    and shall not accept or seek instructions from any Government or any other source.

    It is to be understood, however, that the scope of the investigation is limited to

    senior leaders of Democratic Kampuchea [additional text from Article 1 of the draft

    law to be inserted] of Cambodian penal law, international law and custom, and international

    conventions recognized by Cambodia, and which were committed during the period 17

    April 1975 to 6 January 1979.

  4. The investigating judges shall cooperate with a view to arriving at a common

    approach to the investigation. In case the investigating judges are unable to agree

    whether to proceed with an investigation, the investigation shall proceed unless

    the judges or one of them requests within 30 days that the difference shall be settled

    in accordance with Article 6.

  5. In addition to the list of 12 international judges, the Secretary-General shall

    submit a list of two international judges from which the Supreme Council of the Magistracy

    shall appoint one to serve as an international investigating judge.

  6. The investigating judges shall be appointed for the duration of the proceedings.

Article 5

Prosecutors

Option 1:

1. There shall be one Cambodian and one international prosecutor serving as co-prosecutors.

They shall be responsible for the conduct of prosecutions.

Option 2:

  1. There shall be three Cambodian prosecutors (one for the Trial Chamber, one for

    the Appeals Chamber and one for the Supreme Court), and one international prosecutor

    competent to appear in all three chambers, serving as co-prosecutors. They shall

    be responsible for the conduct of the prosecutions.

  2. The prosecutors shall be of high moral character, and possess a high level of

    professional competence and extensive experience in the conduct of investigations

    and prosecutions of criminal cases.

  3. The prosecutors shall be independent in the performance of their functions and

    shall not accept or seek instructions from any Government or any other source. It

    is understood, however, that the scope of the prosecution is limited to senior leaders

    of Democratic Kampuchea [additional text from Article 1 of the draft law to be inserted]

    of Cambodian penal law, international law and custom, and international conventions

    recognized by Cambodia, and which were committed during the period 17 April 1975

    to 6 January 1979.

  4. The prosecutors shall cooperate with a view to arriving at a common approach

    to the prosecution. In case the prosecutors are unable to agree whether to proceed

    with a prosecution, the prosecution shall proceed unless the prosecutors or one of

    them requests within 30 days that the difference shall be settled in accordance with

    Article 6.

  5. The Secretary-General undertakes to forward a list of two international prosecutors

    from which the Supreme Council of the Magistracy shall select one.

  6. The prosecutors shall be appointed for the duration of the proceedings.
  7. Each prosecutor shall have one or more deputy prosecutors to assist him or her

    with prosecutions before the chambers. Deputy international prosecutors shall be

    appointed by the international prosecutor from a list provided by the Secretary-General.

Article 6

Settlement of differences Between the Co-Investigating Judges or the Co-Prosecutors

  1. In case the Co-Investigating Judges or the Co-Prosecutors have made a request

    in accordance with Article 4, paragraph 4, or Article 5, paragraph 4, as the case

    may be, they shall submit written statements of facts and the reasons for their different

    positions to the Director of Administration.

  2. The difference shall be settled forthwith by a Pre-Trial Chamber of five judges,

    three appointed by the Supreme Council of the Magistracy, with one as President,

    and two appointed by the Supreme Council of the Magistracy upon nomination by the

    Secretary-General. Article 2, paragraph 3, shall apply to the judges.

  3. Upon receipt of the statements referred to in paragraph 1, the Director of Administration

    shall immediately convene the Pre-Trial Chamber and communicate the statements to

    its members.

  4. A decision of the Pre-Trial Chamber, against which there is no appeal, requires

    the affirmative vote of at least four judges. The decision shall be communicated

    to the Director of Administration, who shall publish it and communicate it to the

    Co-Investigating Judges or the Co-Prosecutors. They shall immediately proceed in

    accordance with the decision of the Chamber. If there is no majority, as required

    for a decision, the investigation or prosecution shall proceed.

Article 7

Office of the Administration

  1. There shall be an Office of the Administration to service the chambers, the investigating

    judges and the Prosecutors' Office.

  2. There shall be a Cambodian Director of this Office and an international Deputy

    Director. The international Deputy Director shall be appointed by the Secretary-General

    of the United Nations under the 200 series Staff Rules and shall be responsible for

    the recruitment and administration of all international staff, as required by the

    international components of the chambers, the investigating judges, the Prosecutor's

    Office and the Office of the Administration. He or she shall also administer at the

    local level the financial and staff resources allotted against the United Nations

    Trust Fund. (cf Article 15).

Article 8

Crimes falling within the jurisdiction of the chambers

The subject-matter jurisdiction of the chambers shall include the crime of genocide,

crimes against humanity and war crimes as defined in international instruments, and

such other crimes as defined in the Law on the Establishment of Extraordinary Chambers.

Article 9

Amnesty

The Parties agree that there shall be no amnesty for the crime of genocide, war crimes

and crimes against humanity. An amnesty granted to any person falling within the

jurisdiction of the chambers shall not be a bar to prosecution.

Note: On 20 March 2000 the Head of the United Nations delegation was informed in

writing by the Head of the Cambodian delegation as follows with respect to decisions

already taken regarding amnesty for the Khmer Rouge.

The Cambodian Constitution gives the rights to His Majesty the King to grant amnesties

(Article 27), and also to the National Assembly to make laws concerning amnesty (Article

90). So far His Majesty King Norodom Sihanouk has only exercised this right with

regard to the Khmer Rouge when requested by the Royal Government of Cambodia, with

a clear endorsement also by two-thirds of the members of the National Assembly.

Our Draft Law (Article 40) makes a clear statement of the government's intent not

to request an amnesty for any person who committed crimes relating to applicable

law described in Articles 3-8 of the Draft Law. This indicates our intention to make

a clear break in the cycle.

As to the past, I can inform you that, with regard to matters covered in this Draft

Law, there has been only one case, dated 14 September 1996, when an amnesty was granted

to only one person with regard to a 1979 conviction on the charge of genocide.

Article 10

Procedure

The procedures shall be in accordance with Cambodian law. If necessary, guidance

may also be sought in procedural rules established at the international level.

Article 11

Rights of the accused

The rights of the accused enshrined in Article 14 of the 1966 Covenant on Civil and

Political Rights shall be respected throughout the trial process. Such rights shall,

in particular, include the right to a fair and public hearing, the right to be presumed

innocent until proved guilty, the right to choose a counsel of his or her choice,

to have adequate time and facilities for the preparation of his defense, to have

counsel provided if he or she does not have sufficient means to pay for it and to

examine or have examined the witnesses against him or her.

Article 12

Premises

The Government shall provide the premises for the court and such utilities, facilities

and other services necessary for its operation that may be mutually agreed upon by

separate agreement between the United Nations and the Government.

Article 13

Cambodian personnel

Salaries and emoluments of Cambodian judges, prosecutors and other personnel shall

be defrayed by the Government

Article 14

International personnel

Salaries and emoluments of international judges, prosecutors and other international

personnel shall be defrayed by contributing States or the United Nations Trust Fund.

Article 15

Financial assistance of the United Nations

  1. The Secretary-General of the United Nations undertakes to establish a trust fund

    to assist in the operational costs of the court. The Secretary-General will appeal

    to States, inter-governmental and non-governmental organizations to contribute funds,

    equipment and services, including judges, prosecutors and other personnel.

  2. The United Nations Trust Fund shall be administered by the Secretary-General

    in accordance with the Financial Regulations and Rules of the United Nations.

  3. The following shall be met from voluntary contributions received in the United

    Nations Trust Fund:

  1. daily subsistence allowance and travel expenses for the international judges,

    international investigating judges, prosecutors and other international personnel;

  2. utilities and services as agreed separately between the United Nations and the

    Government;

  3. salary for the Deputy Director of the Office of Administration;
  4. salary for any additional international staff, if none is contributed and the

    court would not be able to function without this assistance;

  5. defense counsel;
  6. witnesses travel from within Cambodia and from abroad;
  7. safety and security arrangements as agreed separately between the United Nations

    and the Government;

  8. such other limited assistance as may be necessary to ensure the smooth functioning

    of the court.

Article 16

Inviolability of archives and all documents of the court

The archives of the court, and in general all documents and materials made available,

belonging to or used by it, wherever located in Cambodia and by whomsoever held,

shall be inviolable for the duration of the proceedings.

Article 17

Privileges and immunities of international judges and international prosecutors

1. The international judges, including the international investigating judge, the

international prosecutor, and the Deputy Director of the Office of Administration,

together with their families forming part of their household, shall enjoy the privileges

and immunities, exemptions and facilities accorded to diplomatic agents in accordance

with the 1961 Vienna Convention on Diplomatic Relations. They shall, in particular,

enjoy:

  1. personal inviolability, including immunity from arrest or detention;
  2. immunity from criminal, civil and administrative jurisdiction in conformity with

    the Vienna Convention;

  3. inviolability for all papers and documents;
  4. exemption from immigration restrictions and alien registration;
  5. the same immunities and facilities in respect of their personal baggage as are

    accorded to diplomatic agents.

2. The international judges, including the international investigating judge,

the international prosecutor and the Deputy Director of the Office of Administration

shall enjoy exemption from taxation in Cambodia on their salaries, emoluments and

allowances.

Article 18

Privileges and immunities of international and Cambodian personnel

1. International and Cambodian personnel shall be accorded:

  1. immunity from legal process in respect of words spoken or written and all acts

    performed by them in their official capacity. Such immunity shall continue to be

    accorded after termination of employment with the chambers.

  2. immunity from taxation on salaries, allowances and emoluments paid to them by

    contributing States or the United Nations Trust Fund.

  3. International personnel shall, in addition:
  4. enjoy immunity from immigration restriction;
  5. the right to import free of duties and taxes, except for payment for services,

    their furniture and effects at the time of first taking up their official duties

    in Cambodia.

Article 19

Counsel

1. The Counsel of a suspect or an accused who has been admitted as such by the chambers

shall not be subjected by the Government to any measure which may affect the free

and independent exercise of his or her functions under the Law on the Establishment

of Extraordinary Chambers.

2. In particular, the counsel shall be accorded:

  1. immunity from personal arrest or detention and from seizure of personal baggage;
  2. inviolability of all documents relating to the exercise of his or her functions

    as a counsel of a suspect or accused;

  3. immunity from criminal or civil jurisdiction in respect of words spoken or written

    and acts performed by them in their official capacity as counsel. Such immunity shall

    continue to be accorded to them after termination of their functions as a counsel

    of a suspect or accused.

Article 20

Witnesses and experts

Witnesses and experts appearing on a summons or a request of the judges, including

the investigating judges, or the prosecutor shall not be prosecuted, detained or

subjected to any other restriction of their liberty by the Cambodian authorities.

They shall not be subjected by the authorities to any measures which may affect the

free and independent exercise of their functions.

Article 21

Protection of victims and witnesses

The court shall provide for the protection of victims and witnesses. Such protection

measures shall include, but shall not be limited to, the conduct of in camera proceedings

and the protection of the victim's identity.

Article 22

Security, safety and protection of persons referred to in these Articles

The Government shall take all effective and adequate actions which may be required

to ensure the security, safety and protection of persons referred to in these Articles.

Article 23

Obligation to assist the court

The Government shall comply without undue delay with any request for assistance by

the court or an order issued by the chambers, including, but not limited to:

  1. identification and location of persons;
  2. service of documents;
  3. arrest or detention of persons;
  4. transfer of an indictee to the chambers;

Article 24

Working language

The official working language of the court shall be Khmer with official translation

into English and French. Any translation into Russian will be the responsibility

of the Government.

Article 25

Practical arrangements

  1. With a view to achieving efficiency and cost-effectiveness in the operation of

    the court, a phased-in approach shall be adopted for the court's establishment in

    accordance with the chronological order of the legal process.

  2. In the first phase of the operation of the court, judges, investigating judges

    and prosecutors will be appointed along with investigative and prosecutorial staff,

    and the process of investigations and prosecutions shall be initiated.

  3. The trial process of those already in custody shall proceed simultaneously with

    the investigation of other persons responsible for crimes falling within the jurisdiction

    of the court.

  4. With the completion of the investigation of persons suspected of having committed

    the crimes falling within the jurisdiction of the court, arrest warrants shall be

    issued and submitted to the Government to effectuate the arrest.

  5. With the arrest by the Government of indicted persons situated in its territory,

    chambers shall be fully operational, provided that the judges of the Appeal Chamber

    and the Supreme Court shall serve when their respective chamber is seized with a

    matter.

Article 26

The financial authority of the Secretary-General

  1. The Government recognizes that the Secretary-General of the United Nations cannot

    make undertakings on behalf of the Organization that require funds appropriated through

    assessed contributions. Therefore, the obligations of the United Nations will be

    determined solely by the terms of these articles, and shall be dependent on the availability

    of personnel offered by contributing States and funds in the United Nations Trust

    Fund.

  2. The appointment of international judges and prosecutors nominated by the Secretary-General

    shall not take effect until such time as the Secretary-General is satisfied of the

    availability of funds for an initial period of two years.

  3. If no personnel or insufficient personnel is offered by States or if no funs

    or insufficient funds are available in the United Nations Trust Fund, the United

    Nations shall be free from its obligations under these articles.

Article 27

Settlement of Disputes

Any dispute between the Parties concerning the interpretation or application of these

Articles shall be settled by negotiation, or by any other mutually agreed upon mode

of settlement.

Article 28

Entry into force

The present Memorandum of Understanding shall enter into force on the day after both

parties have notified each other in writing that the legal requirements for entry

into force have been complied with.

Done at [place] on [day, month] 2000 in two copies in the English language

For the United Nations For the Royal Government of Cambodia

Hans Corell Sok An

Under-Secretary-General Senior Minister and Minister in Charge for Legal Affairs

of the Council of Ministers

RECOMMENDED STORIES

  • Breaking: PM says prominent human rights NGO ‘must close’

    Prime Minister Hun Sen has instructed the Interior Ministry to investigate the Cambodian Center for Human Rights (CCHR) and potentially close it “because they follow foreigners”, appearing to link the rights group to the opposition Cambodia National Rescue Party's purported “revolution”. The CNRP - the

  • Rainsy and Sokha ‘would already be dead’: PM

    Prime Minister Hun Sen on Sunday appeared to suggest he would have assassinated opposition leaders Sam Rainsy and Kem Sokha had he known they were promising to “organise a new government” in the aftermath of the disputed 2013 national elections. In a clip from his speech

  • Massive ceremony at Angkor Wat will show ‘Cambodia not in anarchy’: PM

    Government officials, thousands of monks and Prime Minister Hun Sen himself will hold a massive prayer ceremony at Angkor Wat in early December to highlight the Kingdom’s continuing “peace, independence and political stability”, a spectacle observers said was designed to disguise the deterioration of

  • PM tells workers CNRP is to blame for any sanctions

    In a speech to workers yesterday, Prime Minister Hun Sen pinned the blame for any damage inflicted on Cambodia’s garment industry by potential economic sanctions squarely on the opposition party. “You must remember clearly that if the purchase orders are reduced, it is all