Tribunal Memorandum of Understanding Between the United Nations and the Royal Government of Cambodia
[Published in Phnom Penh Post, Issue 9/22, October 27 - November 9, 2000]
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:
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.
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.
The composition of the chambers shall be as follows:
The Trial Chamber: 3 Cambodian judges and 2 international judges.
The Appeals Chamber: 4 Cambodian judges and 3 international judges.
The Supreme Court: 5 Cambodian judges and 4 international judges.
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.
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.
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.
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.
The judges shall be appointed for the duration of the proceedings.
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.
1. The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:
A decision by the Trial Chamber shall require the affirmative vote of at least four judges;
A decision by the Appeals Chamber shall require the affirmative vote of at least five judges;
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.
There shall be one Cambodian and one international judge serving as co-investigating judges. They shall be responsible for the conduct of investigations.
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.
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.
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.
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.
The investigating judges shall be appointed for the duration of the proceedings.
1. There shall be one Cambodian and one international prosecutor serving as co-prosecutors. They shall be responsible for the conduct of prosecutions.
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.
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.
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.
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.
The Secretary-General undertakes to forward a list of two international prosecutors from which the Supreme Council of the Magistracy shall select one.
The prosecutors shall be appointed for the duration of the proceedings.
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.
Settlement of differences Between the Co-Investigating Judges or the Co-Prosecutors
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.
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.
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.
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.
Office of the Administration
There shall be an Office of the Administration to service the chambers, the investigating judges and the Prosecutors' Office.
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).
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.
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.
The procedures shall be in accordance with Cambodian law. If necessary, guidance may also be sought in procedural rules established at the international level.
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.
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.
Salaries and emoluments of Cambodian judges, prosecutors and other personnel shall be defrayed by the Government
Salaries and emoluments of international judges, prosecutors and other international personnel shall be defrayed by contributing States or the United Nations Trust Fund.
Financial assistance of the United Nations
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.
The United Nations Trust Fund shall be administered by the Secretary-General in accordance with the Financial Regulations and Rules of the United Nations.
The following shall be met from voluntary contributions received in the United Nations Trust Fund: daily subsistence allowance and travel expenses for the international judges, international investigating judges, prosecutors and other international personnel;
utilities and services as agreed separately between the United Nations and the Government;
salary for the Deputy Director of the Office of Administration;
salary for any additional international staff, if none is contributed and the court would not be able to function without this assistance;
witnesses travel from within Cambodia and from abroad;
safety and security arrangements as agreed separately between the United Nations and the Government;
such other limited assistance as may be necessary to ensure the smooth functioning of the court.
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.
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:
personal inviolability, including immunity from arrest or detention;
immunity from criminal, civil and administrative jurisdiction in conformity with the Vienna Convention;
inviolability for all papers and documents;
exemption from immigration restrictions and alien registration;
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.
Privileges and immunities of international and Cambodian personnel
1. International and Cambodian personnel shall be accorded:
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.
immunity from taxation on salaries, allowances and emoluments paid to them by contributing States or the United Nations Trust Fund.
International personnel shall, in addition:
enjoy immunity from immigration restriction;
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.
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: immunity from personal arrest or detention and from seizure of personal baggage;
inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;
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.
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.
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.
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.
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:
identification and location of persons;
service of documents;
arrest or detention of persons;
transfer of an indictee to the chambers;
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.
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.
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.
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.
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.
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.
The financial authority of the Secretary-General
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.
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.
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.
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.
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