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Key Features of the ECCC
The ECCC is a genuinely hybrid court - the first of its kind - in which local and international actors, money and procedures coexist (and often clash). In many ways it can be seen as an improvement upon past international and hybrid tribunals. The Chambers are a part of the Cambodian court system rather than a stand-alone tribunal and are located in a military compound outside Phnom Penh - close to where many of the crimes took place - instead of thousands of miles away (as is the case with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda). Unlike at the Special Court for Sierra Leone, the judges appointed by the Cambodian government at the ECCC (hereinafter ‘Cambodian’ or ‘national’) are in the majority in each Chamber vis-a-vis the judges appointed by the UN (hereinafter ‘international’). There are three Cambodian judges out of five in the PreTrial and Trial Chambers and four out of seven in the Supreme Court Chamber, which hears appeals. But a balance has been struck between local and international influence: judges must reach a ‘super majority’ (or ‘majority plus one’) judgement on any positive decision, meaning it is not possible for the Cambodian judges alone to override concerns of the international judges or vice versa. The other organs of the court are also divided along national-international lines. There are two Co-Prosecutors (one Cambodian and one international), two Co-Investigating Judges, and two Civil Party Lead Co-Lawyers. Most major administrative functions of the court (for instance the Budget and Finance, Personnel and
Security and Safety sections) also have co-heads. Importantly for public coverage of, and involvement in, the court, and in contrast to other war crimes trials, much of the business in trials is conducted in the Cambodian national language (Khmer), and a Khmer translation of all proceedings is broadcast into the public gallery.
The funding for the ECCC is also hybrid, with the budget split into national and international components. The national component for 2012 is US$10.3 million, and the international component $35.4 million. Both components are funded by voluntary contributions, with the shares from main donors up to June 2012 as follows: Japan 50 per cent; Australia 11 per cent; United States 9 per cent; Germany 6 per cent; France 6 per cent. The major donors to the national component are Japan, the UN Trust Fund and the European Union, alongside the Cambodian government, which has paid around $5.12 million into the budget as well as provided the premises for the court and paid for the detention of suspects (claimed to be an in-kind contribution of $8.2 million, making the funds contributed by Cambodia overall second only to those contributed by Japan).
Finally, the law applied by the ECCC is hybrid - mostly Cambodian and therefore mostly civil, with some elements of international criminal law used when Cambodian law does not provide sufficient guidance on an issue, and some common-law practice used by international judges who find it hard to learn the civil law system. The civil law system means not just that Co-Investigating Judges rather than an Office of the Prosecutor conduct investigations for cases, but also that many more people may be parties to the case than under common law systems. Anyone with a prima facie reason to be classified as a victim can be represented in cases as a Civil Party. The ECCC is the first of the international and hybrid tribunals to allow victims of alleged crimes to participate in this way.
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