Int’l Criminal Law
The ICC Rules of Procedure and Evidence are characterized by a pull towards inquisitorially in- fluenced mechanisms, and also has several en- tirely unique features. Some of these features, such as the authorization function of the PTC, are outside the scope of both the adversarial and in- quisitorial systems, and instead represent a sui generis development in ICP.
Procedure at the Extraordinary Chambers in the Courts of Cambodia
The Extraordinary Chambers in the Courts of Cambodia (ECCC) was purposely designed as a hybrid, to combine Cambodian domestic law with international law and legal standards. At the insistence of the Cambodian government, the Court was created within the existing, inquisitori- al, judicial structure of the country and supported by the United Nations. The Agreement between the United Nations and the Government of Cam- bodia makes Cambodian domestic law the ap- plicable procedure at the ECCC, while providing that “guidance may be sought [from] procedural rules established at the international level [in line with] international standards of justice, fairness and due process of law”.
From these origins, it is logical that the ECCC would come to be more inquisitorial in nature than both the ICTY and the ICC, as Cambodia has an inquisitorial legal system. The ECCC em- ploys a purely inquisitorial feature in the Office of the Co-Investigating Judges (OCIJ). The OCIJ is an independent, impartial judicial body that con- ducts all investigation, without interference from the prosecution or defense, and is mandated to investigate and identify both inculpatory and ex- culpatory evidence with the goal of establishing the truth.
The OCIJ’s investigation is constrained by what is contained in the Co-Prosecutor’s Introduc- tory Submission, which is the formal request for the OCIJ to initiate judicial investigation and
defines the scope of the investigation. However, the OCIJ can then determine the course of the investigation by determining which crimes sites to examine, what evidence to collect and which witnesses to interview. Both the co-prosecutor’s and the defense may request that the OCIJ un- dertake specific investigations that they consider useful, but the OCIJ can reject such requests at its discretion. In conducting its investigation, the OCIJ can issue summons, arrest warrants and detention orders on its own initiative. Once the investigation is complete, the OCIJ issues a Closing Order, in which they can either indict a charged person and send to trial, or dismiss the case.
Once the Closing Order is issued the case moves to a Trial Chamber, which has it’s own powers to manage proceedings prior to the stat of trial. Both parties, along with Civil Parties, are required to submit witness lists of those it intends to call, accompanied by information about what facts the witness will testify to and a time estimate for each witness’ testimony.
At trial the ECCC proceedings are structured around the inquisitorial model. The trial begins with the co-prosecutor’s making an opening statement, which is followed by a short response from the defense. Next, the accused is called to respond to the co-prosecutor’s opening. The accused is questioned by the judges, who must raise “all pertinent questions, whether these would tend to prove or disprove guilt.” Unlike in an adversarial trial where the accused would swear an oath prior to taking the stand - should he indeed choose to take the stand – in an inquis- itorial system the accused swears no such oath, which ensures he does not become trapped be- tween having to answer a question truthfully and his right to remain silent.
The President of the Chamber takes the lead in questioning all witnesses, and can choose to hear Civil Parties, witnesses and experts in the
ILSA Quarterly » volume 22 » issue 3 » February 2014
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