Mélanie Vianney-Liaud | Aix-Marseille University (original) (raw)

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Papers by Mélanie Vianney-Liaud

Research paper thumbnail of Determining the Relationship Between International and Domestic Laws Within an Internationalized Court

An Example From the Cambodian Extraordinary Chambers’ Jurisdiction Over International and Domesti... more An Example From the Cambodian Extraordinary
Chambers’ Jurisdiction Over International and
Domestic Crimes

Internationalized criminal tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) differ from traditional international criminal tribunals by a lesser degree of internationality. The ECCC emerged through an international agreement but their mixed composition and operating rules are also defined in Cambodian Law. The relationship between the ECCC’s Agreement and Law has not been clearly stated, which generates questions since both texts are not always consistent. This paper proposes, through the study of the provisions of the ECCC Law relating to the ECCC’s subject-matter jurisdiction, to determine the impact of such discrepancies on the activity of the Chambers. The decisions of their judicial bodies on the application of Articles 3, 4 and 5 which provide for the ECCC’s jurisdiction over crimes against humanity, genocide and certain domestic crimes have allowed to cope with the uncertainty generated by those differences. However, a bigger issue remains which is due to the ECCC’s particular hybrid structure. Composed of national judges in the majority, ECCC’s decisions may only be taken if the required qualified majority is reached, which implies the need for an agreement with their international counterparts.

Research paper thumbnail of Victim Participation in ICC and ECCC’s Proceedings

At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodi... more At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime in Cambodia, for example, caused the death of nearly 1.7 million people. Legally speaking, the victims are those who have suffered harm as a result of a crime, namely the act(s) or omission(s) reproached to the accused in a criminal trial. Consequently, given the widespread scale of atrocities committed by the Khmer Rouge, almost the whole Cambodian population could claim victim status at the ECCC. This raises the question of how to ensure victims effective procedural rights in criminal proceedings whereas they are so many.

Several options have been contemplated. Victim participation status at the ICC and ECCC are different. The purpose of this post is to show that despite such differences, the exercise of victims’ rights is extremely restricted in both courts to the point that, today, there is no effective and useful victim participation in international criminal proceedings.

Research paper thumbnail of La mise en cause de la responsabilité des Khmers rouges de 1979 à aujourd’hui

Research paper thumbnail of Controversy on the Characterization of the Cambodian Genocide at the Extraordinary Chambers in the Courts of Cambodia

Crimes committed by the Khmer Rouge in Cambodia in the 1970s are known as being among the most vi... more Crimes committed by the Khmer Rouge in Cambodia in the 1970s are known as being among the most violent massacres of the 20th century. Yet, the legal characterization of such acts as genocide has been subjected to important legal and conceptual controversies, both inside and outside the Extraordinary Chambers in the Courts of Cambodia (ECCC) – the court in charge of judging the last surviving Khmer Rouge leaders. In consequence, very restricted genocide charges have been retained in the 2010 indictment issued against these Khmer Rouge leaders. Such a decision indubitably disappointed many victims who considered that their suffering was not recognized. Given the fact that the ECCC trial for genocide started on 17 October 2014, a discussion about the limited scope of that indictment appears particularly appropriate, in order to grasp the issues of the coming debates. This paper analyses the legal constraints of the characterization of the Khmer Rouge crimes as genocide, in the particular context of the ECCC.

Research paper thumbnail of Controversy on the Definition of the Cambodian Genocide at the ECCC

Research paper thumbnail of Civil Parties’ Statements of Suffering at the ECCC

Destination Justice website, Aug 2, 2013

In national systems of criminal procedure that recognize Civil Parties, they express their suffer... more In national systems of criminal procedure that recognize Civil Parties, they express their suffering as their testimony proceeds. At the Extraordinary Chambers in the Courts of Cambodia (ECCC) however, the first fifteen Civil Parties who came to testify in the first trial of Case 002, from the end of December 2011 to the middle of May 2013, were only allowed to discuss their suffering after the other parties had finished asking them questions on the facts at issue. The President of the Trial Chamber notably required Civil Party Lawyers to avoid questions about suffering. Only after they finished their testimony were the Civil Parties allocated time that was specifically dedicated to the expression of their suffering.

Isolating the Civil Party’s statement of suffering from his or her testimony was not, however, without certain procedural problems. As discussed below, these statements of suffering could indeed cover the entire scope of Case 002, although the first trial in Case 002 is limited to only a certain number of charges (1). Furthermore, if parties were allowed to make comments, it was only after the Civil Party had left the courtroom. Thus, any possibility of further examination was precluded (2).

Research paper thumbnail of Determining the Relationship Between International and Domestic Laws Within an Internationalized Court

An Example From the Cambodian Extraordinary Chambers’ Jurisdiction Over International and Domesti... more An Example From the Cambodian Extraordinary
Chambers’ Jurisdiction Over International and
Domestic Crimes

Internationalized criminal tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) differ from traditional international criminal tribunals by a lesser degree of internationality. The ECCC emerged through an international agreement but their mixed composition and operating rules are also defined in Cambodian Law. The relationship between the ECCC’s Agreement and Law has not been clearly stated, which generates questions since both texts are not always consistent. This paper proposes, through the study of the provisions of the ECCC Law relating to the ECCC’s subject-matter jurisdiction, to determine the impact of such discrepancies on the activity of the Chambers. The decisions of their judicial bodies on the application of Articles 3, 4 and 5 which provide for the ECCC’s jurisdiction over crimes against humanity, genocide and certain domestic crimes have allowed to cope with the uncertainty generated by those differences. However, a bigger issue remains which is due to the ECCC’s particular hybrid structure. Composed of national judges in the majority, ECCC’s decisions may only be taken if the required qualified majority is reached, which implies the need for an agreement with their international counterparts.

Research paper thumbnail of Victim Participation in ICC and ECCC’s Proceedings

At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodi... more At the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims are granted procedural rights to participate in their personal capacity. However, in both courts, victim participation is challenging since mass crimes make thousands of victims. The crimes perpetrated during the Khmer Rouge regime in Cambodia, for example, caused the death of nearly 1.7 million people. Legally speaking, the victims are those who have suffered harm as a result of a crime, namely the act(s) or omission(s) reproached to the accused in a criminal trial. Consequently, given the widespread scale of atrocities committed by the Khmer Rouge, almost the whole Cambodian population could claim victim status at the ECCC. This raises the question of how to ensure victims effective procedural rights in criminal proceedings whereas they are so many.

Several options have been contemplated. Victim participation status at the ICC and ECCC are different. The purpose of this post is to show that despite such differences, the exercise of victims’ rights is extremely restricted in both courts to the point that, today, there is no effective and useful victim participation in international criminal proceedings.

Research paper thumbnail of La mise en cause de la responsabilité des Khmers rouges de 1979 à aujourd’hui

Research paper thumbnail of Controversy on the Characterization of the Cambodian Genocide at the Extraordinary Chambers in the Courts of Cambodia

Crimes committed by the Khmer Rouge in Cambodia in the 1970s are known as being among the most vi... more Crimes committed by the Khmer Rouge in Cambodia in the 1970s are known as being among the most violent massacres of the 20th century. Yet, the legal characterization of such acts as genocide has been subjected to important legal and conceptual controversies, both inside and outside the Extraordinary Chambers in the Courts of Cambodia (ECCC) – the court in charge of judging the last surviving Khmer Rouge leaders. In consequence, very restricted genocide charges have been retained in the 2010 indictment issued against these Khmer Rouge leaders. Such a decision indubitably disappointed many victims who considered that their suffering was not recognized. Given the fact that the ECCC trial for genocide started on 17 October 2014, a discussion about the limited scope of that indictment appears particularly appropriate, in order to grasp the issues of the coming debates. This paper analyses the legal constraints of the characterization of the Khmer Rouge crimes as genocide, in the particular context of the ECCC.

Research paper thumbnail of Controversy on the Definition of the Cambodian Genocide at the ECCC

Research paper thumbnail of Civil Parties’ Statements of Suffering at the ECCC

Destination Justice website, Aug 2, 2013

In national systems of criminal procedure that recognize Civil Parties, they express their suffer... more In national systems of criminal procedure that recognize Civil Parties, they express their suffering as their testimony proceeds. At the Extraordinary Chambers in the Courts of Cambodia (ECCC) however, the first fifteen Civil Parties who came to testify in the first trial of Case 002, from the end of December 2011 to the middle of May 2013, were only allowed to discuss their suffering after the other parties had finished asking them questions on the facts at issue. The President of the Trial Chamber notably required Civil Party Lawyers to avoid questions about suffering. Only after they finished their testimony were the Civil Parties allocated time that was specifically dedicated to the expression of their suffering.

Isolating the Civil Party’s statement of suffering from his or her testimony was not, however, without certain procedural problems. As discussed below, these statements of suffering could indeed cover the entire scope of Case 002, although the first trial in Case 002 is limited to only a certain number of charges (1). Furthermore, if parties were allowed to make comments, it was only after the Civil Party had left the courtroom. Thus, any possibility of further examination was precluded (2).