Jennifer Trahan’s Cambodia Problem

Jennifer Trahan is back with another post at Just Security that tries to argue a Special Tribunal for the Crime of Aggression (STCoA) is superior to the internationalized (hybrid) tribunal favoured by (at least) the the UK, Germany, France, Italy, and most recently the US. It will take a couple of responses to cover all of the ways in which her post is problematic. In this post I want to explain the fatal flaw in Trahan’s argument concerning the issue she deems most important: the difference between an international tribunal and a national one.

Here is what Trahan says about what makes a tribunal international:

To be clear: an international tribunal is one based directly on international law, established through the United Nations Security Council (which created the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the ICTY and ICTR respectively), or created by bilateral agreement between the United Nations and a country (for instance the Special Court for Sierra Leone). Although the latter had hybrid features, its legal basis made it an international tribunal.

A tribunal is international, then, if it is created either by the Security Council or by a bilateral agreement between the UN and a state. As long as that is the case, the tribunal is “based directly on international law” and it doesn’t matter whether it has “hybrid features.”

Trahan contrasts international tribunals with national ones:

There may also be a hybrid tribunal formed through national law within a country’s national system, as was the Extraordinary Chambers in the Courts of Cambodia. This type of tribunal is better called a national tribunal with certain international features.

Unlike an international tribunal, then, a tribunal created by national law that forms part of a state’s own judicial system is a national tribunal, even if it has “certain international features.”

As the quotes indicate, Trahan believes that the SCSL was an international tribunal while the ECCC was a national one. Those categorizations are critical to her argument, because she believes that an STCoA would be like the SCSL while an internationalized (hybrid) tribunal would be like the ECCC. If there is no relevant legal difference between the SCSL and ECCC, there would be no relevant legal difference between an STCoA and an internationalized tribunal.

Trahan is on firm ground when she claims that “an international tribunal is one based directly on international law, established through the United Nations Security Council… or created by bilateral agreement between the United Nations and a country.” And she is correct that the SCSL was created through such a bilateral agreement, as Fidelma Donlon’s description of the tribunal’s origins makes clear:

But here’s the problem with Trahan’s argument: the ECCC was also “created by a bilateral agreement between the United Nations and a country.” According to her own theory, therefore, the ECCC was an international tribunal, “one based directly on international law” despite its “hybrid features.”

The ECCC’s creation was a long and often difficult process, but it followed exactly the same pattern as the SCSL. In June 1997, Cambodia asked the UN to help it create a judicial mechanism to deal with the Khmer Rouge’s crimes. Upon receiving Cambodia’s letter, the General Assembly adopted a resolution in December 1997 that endorsed UN-Cambodia cooperation regarding a judicial mechanism and “requested the Secretary-General to examine the request made by the Cambodian authorities, including the possibility of the appointment of a group of experts to evaluate the existing evidence and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability.”

The group of experts recommended the UN create an ad hoc tribunal along the lines of the ICTY and ICTR, but Cambodia favoured a more internationalized tribunal based in its own judicial system. Cambodia thus asked the UN to help it draft legislation for such a tribunal. In response, “the Secretary-General entered into negotiations with the Government with a view to reaching an agreement on how such a court would have to be organized and how it would have to function, if the United Nations was to provide or arrange assistance to help establish it and help it to function.” After the UN and Cambodia reached the requested agreement, the General Assembly adopted a resolution appealing to Cambodia to facilitate “the expedited completion of the necessary legislative process as soon as possible.” Cambodia promulgated the requested law on 10 August 2001.

The General Assembly then adopted another resolution on 19 December 2002 that “urged the Government and the United Nations to conclude an agreement without delay so that the Extraordinary Chambers could start to function promptly.” Negotiations proved quite difficult, however, requiring the General Assembly to eventually renew the Secretary-General’s mandate. In March 2003 the necessary agreement was finally reached and initialed by both the UN and Cambodia. The General Assembly approved the agreement on 13 May 2003 and “the agreement between the United Nations and the Government of Cambodia was signed in Phnom Penh on 6 June 2003 by Senior Minister Sok An on behalf of the Government of Cambodia and by the Legal Counsel on behalf of the United Nations.” Cambodia’s National Assembly then ratified the agreement the following year and the agreement entered into force on 29 April 2005.

The SCSL and ECCC, in short, were each “created by a bilateral agreement between the United Nations and a country.”  Both are thus international tribunals according to Trahan’s theory of internationality, despite each having “hybrid features.” The only difference between them is that the UN and Cambodia mutually agreed to create the ECCC within Cambodia’s judicial system while the UN and Sierra Leone mutually agreed to create the SCSL outside of Sierra Leone’s judicial system.

Trahan is right that an STCoA would follow the SCSL model while an internationalized tribunal would follow the ECCC model. But nothing follows from that. As we have seen, both the SCSL and the ECCC are international tribunals according to her theory. The only difference between an STCoA and an internationalized tribunal would be where the UN and Ukraine mutually agreed to create the tribunal — outside of Ukraine’s judicial system or within it.

Trahan will likely respond to this critique by insisting that it is not legally possible for the UN and a state to create an international tribunal within a state’s judicial system — not even through “a bilateral agreement” to do so.  That response, however, is directly contradicted by the Joint Concurring Opinion (JCO) in the Jordan Appeal Decision, where four of the five judges in the Appeals Chamber explicitly said that the key to a tribunal’s internationality is whether it exercises “jurisdiction on behalf of the international community” (para. 53), not whether it is located within or outside a state’s judicial system (para. 56; emphasis mine):

But what is an ‘international court’? An ‘international court’ or an ‘international tribunal’ or an ‘international commission’ (in the context of administration of justice)—nothing turns on the choice of nomenclature—is an adjudicatory body that exercises jurisdiction at the behest of two or more states. Its jurisdiction may be conferred in one of a variety of ways: such as by treaty; by instrument of promulgation, referral or adhesion made by an international body or functionary empowered to do so; or, indeed, by adhesion or referral through an arbitral clause in a treaty. A court that operates physically or in principle within a domestic realm exercises international jurisdiction where such jurisdiction results in any manner described above.

The JCO’s position is, in general, legally sound. If a tribunal genuinely reflects the will of the international community to hold high-ranking perpetrators responsible for the commission of international crimes, why should it matter whether that tribunal forms part of a state’s judicial system or is located outside it? Such hyper-formalism, which the JCO rightly rejects, would lead to absurd results. Consider two scenarios in which State X has been the victim of a clear act of aggression by a member of the P5. In Scenario 1, the General Assembly adopts a resolution by a vote of 193-1 encouraging the Secretary-General to negotiate an agreement with State X to create a tribunal within State X’s judicial system. In Scenario 2, the General Assembly adopts a resolution by a vote of 4-2-188 encouraging the Secretary-General to negotiate an agreement with State X to create a tribunal outside of State X’s judicial system. If there is some mysterious international-law principle that prohibits an international tribunal from being part of a state’s judicial system, the tribunal in Scenario 1 that is supported by 99.5% of the world’s states is a “national tribunal” while the tribunal in Scenario 2 that is supported by 2% of the world’s states is an “international tribunal.” That makes no sense — to put it mildly.

The scenarios are admittedly extreme, but they serve to make the basic point: what matters is international support for a tribunal, not formal criteria such as whether it is created within or outside a state’s judicial system — a decision that is itself purely political, not legal.

In short, Trahan is correct that “an international tribunal is one based directly on international law, established through the United Nations Security Council… or created by bilateral agreement between the United Nations and a country.” And that means an internationalized (hybrid) tribunal created within Ukraine’s judicial system as a result of a bilateral agreement between the UN and Ukraine would qualify as an international tribunal.

NOTE: My analysis of the ECCC is consistent with the tribunal’s own. The ECCC not only saw itself as the same kind of tribunal as the SCSL — what the prosecution called in Case 001 a “special internationalised tribunal” — it specifically relied on (para. 20) the SCSL’s appeals judgment in Taylor for that conclusion — the paragraph where the SCSL judges “considered the indicia of an international court included the facts that the court is established by treaty, that it was ‘an expression of the will of the international community’, that it is considered ‘part of the machinery of international justice’ and that its jurisdiction involves trying the most serious international crimes.” The Pre-Trial Chamber reaffirmed that description of the ECCC in Case 002, relying on (para. 220) a Special Tribunal from Lebanon (STL) appeals decision (para. 43) in which the judges explained what distinguishes an international tribunal from a national court:

The Appeals Chamber of the Special Tribunal for Lebanon in its recent decision of 10 November 2010 found that courts and tribunals that are set up through agreements between States and the United Nations, are courts of an international and not of a simply domestic nature: “Things are different at the international level. In this field there is no judicial system. Courts and tribunals are set up individually by States, or by intergovernmental organizations such as the United Nations, or through agreements between States and these organizations, but they do not constitute a closely intertwined set of judicial institutions. Indeed, each tribunal constitutes a self-contained unit, or has been said, “a monad that is very inward-looking” or “a kind of unicellular organism.”