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Case File No. 002/19-09-2007/ECCC/TC
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2. PRELIMINARY ISSUES
2.1. Jurisdiction
12.
Following the signing of the Agreement between the United Nations and the
Royal Government of Cambodia on 6 June 2003, the Cambodian parliament adopted
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” which was promulgated in its final version on 22 October 2004.30
According to Article 2(1) of the Agreement and Articles 1 and 2 (new) of the ECCC
Law, the ECCC has personal jurisdiction over “senior leaders” of Democratic
Kampuchea and those who were “most responsible” for the crimes and serious
violations of Cambodian penal law, international humanitarian law and international
conventions recognised by Cambodia, committed between 17 April 1975 and 6
January 1979.31
13.
The Co-Investigating Judges ruled that they had personal jurisdiction over
NUON Chea and KHIEU Samphan, finding that they were senior leaders of
Democratic Kampuchea and/or those most responsible for crimes committed between
17 April 1975 and 6 January 1979.32 These findings were not challenged before the
Pre-Trial Chamber.
14.
KHIEU Samphan nevertheless maintains that the ECCC has no personal
jurisdiction over him. He contends that during the Democratic Kampuchea regime he
was never a political decision maker, nor did he have effective or operational power
30
Agreement between the United Nations and the Royal Government of Cambodia concerning the
Prosecution under Cambodian Law Of Crimes Committed during the Period of Democratic
Kampuchea, 6 June 2003 (“ECCC Agreement”), Articles 1, 2; Law on the Establishment of
Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during
the Period of Democratic Kampuchea, 10 August 2001 with inclusion of amendments as promulgated
on 27 October 2004 (NS/RKM/1004/006) (“ECCC Law”), Article 2.
31
The Supreme Court Chamber has held that the qualification of an Accused as a senior leader or a
person most responsible is primarily a matter of prosecutorial and investigative policy within the sole
discretion of the Co-Prosecutors and Co-Investigating Judges. As such, it is not justiciable before the
Trial Chamber unless an abuse of discretion is alleged. Whether or not an Accused is a Khmer Rouge
official, however, is a jurisdictional requirement justiciable before the Trial Chamber (KAING Guek
Eav Appeal Judgement, paras 79-80).
32
Closing Order, paras 1327-1328.
Case 002/01, Judgement, 7 August 2014 - Public
7
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