Diritto Pubblico Comparato ed Europeo

Sommario

1. Quadro storico. – 2. Il cammino verso un organo giurisdizionale ad hoc. – 3. La natura giuridica dell’organo. – 4. I magistrati che compongono l’organo. – 5. La consistente rilevanza dell’elemento domestico: sede, finanziamento e procedura applicabile. – 6. L’ambito della competenza giurisdizionale. – 7. Entità ed effettività della pena. – 8. Considerazioni conclusive: Camere straordinarie miste e transitional justice.

Abstract

The author analyses the prosecution of crimes committed in Cambodia during the period of “Democratic Kampuchea” as an example of transitional justice. The “Extraordinary Chambers in the Courts of Cambodia”, a peculiar ad hoc court, were created after a long and complicated negotiation between the Cambodian Government and the U.N. This court can be qualified as a “hybrid” Court; in fact, not only judges are both Cambodian and International (i.e. designated by the Secretary-General of the United Nations), but also laws and procedures are not exclusively domestic. The establishment of a “mixed” court is part of a new trend in international justice. Such a strategy is a consequence of what happened in the last decade in Sierra Leone, Kosovo and East Timor. According to the author, the major advantage of the Cambodian compromise is that international involvement can help to establish truth, justice and reconciliation a fragile political situations such as Cambodia. In fact regular domestic Courts would be put under an unbearable political pressure. Finally a “hybrid” Court preserves sovereignty to an acceptable degree as provided for in Art. 17 of the Rome Statute of International Criminal Court.