2010-10-26, Phnom Penh, Cambodia. The Trial Chamber granted the Co-Prosecutors’ motion to exclude armed conflict nexus requirement from the definition of crimes against humanity. This decision effectively reversed the Pre-Trial Chamber’s decision holding that it was not clear whether a nexus to armed conflict was part of the customary international law definition of crimes against humanity from 1975-1979, and that added the nexus requirement to the definition of the crime.
The Trial Chamber pointed out that post-WWII law is ambiguous on the existence of the nexus, with Nuremberg Charter, Control Council Law No. 10, Flick, Einsatzgrnppen, Justice and Ministries Cases pointing in different directions. The Chamber also considered the fact that 1954 ILC Draft Code, 1948 Genocide Convention, 1968 Statute of Limitations Convention, 1968 Statute of Limitations Convention, 1973 Apartheid Convention did not require the armed conflict nexus. Similarly, post-1979 developments in law, such as ICTY Decisions in Tadic case, ICTR and SCSL Statutes, ICC Rome Statute also point in this direction.
On the question of admissibility of the Co-Prosecutors’ Motion, the Defence argued the Motion was inadmissible because it constituted a preliminary objection, because it was an indirect attack on the decision of the Pre-Trial Chamber and because Rule 98 pertains solely to the legal re-characterisation of facts. In finding that the motion was admissible, the Trial Chamber held that this determination falls squarely within the Trial Chamber’s inherent powers, that it may at any time determine the applicable law in this case, and that this includes a determination of the elements of crimes contained in the Closing Order where necessary to accord with the correct state of the law and is subject only to the overriding requirements of a fair trial.