The announcement last week that Cambodia's National Assembly passed a draft law to establish a UN-assisted tribunal to try the surviving leadership of the Khmer Rouge movement has raised hopes that a tribunal may finally deal with the atrocities committed by the Communist regime that ruled Cambodia between April 1975 and January 1979, during which an estimated 1.7 million Cambodians died.
Despite international pressure, particularly from the US, and a series of promises the Cambodian government has stalled for two years on plans to put the top Khmer Rouge leadership on trial. In late November, US Senator John Kerry spent a day in Phnom Penh and received another promise which he termed a "very positive outcome," involving the assurance that the National Assembly would soon begin debating the draft legislation to set up the tribunal.
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Senator Kerry is a close friend of Prime Minister Hun Sen and has been intimately involved in the US efforts to get the tribunal established.
But there are many obstacles on the path towards a properly established tribunal which meets the necessary "international standards" and many observers in Phnom Penh are wondering whether the outcome will not be a farce, once again sponsored by the UN and the international community.
To begin with, Hun Sen has stated "urbi et orbi" that he will not allow the man considered to be the "number two" in the hierarchy of the Khmer Rouge regime, Ieng Sary, the former deputy prime minister in charge of foreign affairs, to be brought to trial on charges of crimes against humanity or of genocide committed during the 1975 to 1979 reign of terror in Cambodia.
The Cambodian premier has repeatedly said that Ieng Sary made a "significant contribution to national reconciliation by leading 70 percent of former Khmer Rouge forces to the government side, leading to the elimination of the Khmer Rouge military organization." Thus he should not be brought to trial.
He has said that "Ieng Sary showed goodwill by bringing down the Khmer Rouge," and that "the King signed an amnesty for Ieng Sary that led many of the rebels to defect," in reference to a September 1996 amnesty granted to Ieng Sary by King Norodom Sihanouk at the request of the then two co-premiers of Cambodia.
Ieng Sary and other Khmer Rouge leaders were sentenced to death in absentia in 1979 by a tribunal organized by the Vietnamese army occupying Cambodia at the time and staffed with "judges" from Cuba and other countries where the judicial systems are not independent but rather form part of the ruling party's state apparatus.
The amnesty granted by King Sihanouk voids only this conviction against Ieng Sary and says nothing about future convictions. But what worries diplomats and legal experts is the fact that the Cambodian prime minister is already deciding who can and who cannot be taken before a tribunal thus challenging the power of the yet-to-be-established tribunal.
Youk Chhang, director of the Documentation Center of Cambodia, who has spent several years gathering evidence for an eventual Khmer Rouge tribunal says that his organization has enough information for the prosecutors to begin a case against Ieng Sary.
Second, the UN -- under pressure from the US, legal experts suggest -- has accepted provisions that can jeopardize the handing out of fair and independent justice at a future mixed Cambodian/international tribunal.
For instance, while the UN-nominated judges will be screened by the Cambodian Supreme Council of the Magistracy, a body controlled by the ruling party in Phnom Penh, the UN has no power to screen the Cambodian judges appointed.
Another element of the draft law agreed to by the UN and the Cambodian government says that the trial proceedings will be based on existing Cambodian criminal proceedings. Some of these proceedings -- such as the procedure for appointing prosecutors, which is again totally controlled by the Cambodian People's Party of Prime Minister Hun Sen -- simply does not exist.
The Cambodian tribunal, which will have a majority of Cambodian judges, will rule by "supermajority," meaning that a decision will require the affirmative vote of a "supermajority" of judges -- four out of five judges in the trial chamber.
Yet the draft law does not clarify nor make provision for a case when a "supermajority" is not reached or when the judges vote on conviction or acquittal. Some would argue that a conviction can only be reached if a "supermajority" votes for it. Such a situation would give the control to the Cambodian side to acquit any suspect they don't want to see convicted, since the minority of international judges would be unable to ensure a conviction on their own.
The US ambassador to Cambodia, Kent Wiedemann, rejects the above legal arguments and suggests that the draft law "disappoints the purists who would like a wholly international tribunal, as in the cases of Rwanda and the former Yugoslavia."
He says that "the case of Cambodia is not analogous to the other cases in the legal sense because Cambodia did not involve international conflict and therefore could not provide a basis for UN Security Council action as in the cases of Rwanda and Yugoslavia."
The US position worries diplomats in Phnom Penh who are more and more convinced that the US is experimenting with these new formulas for tribunals (such as in Sierra Leone and Cambodia) in order to prevent an International Criminal Court, which the US vehemently opposes, from ever coming about: let countries experiment with ad hoc formulas and in the end everyone will prefer that over a global institution for criminal justice over which the US has no control.
Third, as in many things concerning Cambodia, the international community is divided. France, for unknown reasons, has sided with the Cambodian government, arguing that the tribunal "is an internal matter of Cambodia."
Russia is also opposed to the tribunal for reasons that have not been made public, but diplomats suggest that as the Russians were instrumental in providing assistance through the Vietnamese to the fledgling Khmer Rouge movement in the '50s, '60s and '70s Moscow may wish that certain information is not disclosed during a trial.
China is vehemently opposed to the tribunal being established.
Strangely, the Cambodian premier constantly uses the amnesty given by King Sihanouk to Ieng Sary to justify his defense of Ieng Sary in front of the people of Cambodia and the international community.
I am often asked why the King agreed to the request made by Norodom Ranariddh, and, Hun Sen, to grant an amnesty to such notorious mass murderers as Ieng Sary.
First, it should be said that under the 1993 Cambodian Constitution, the King is empowered to grant amnesty of his own volition or after a request from the head of the Cambodian government has been received.
Let me recall the events surrounding this amnesty for Ieng Sary, back in September 1996. On Saturday, Sept 14. 1996, the two co-prime ministers of Cambodia, Norodom Ranariddh and Hun Sen requested an audience with the King.
He received them at the Throne Hall, where they submitted to the King an already drafted royal decree granting amnesty to Ieng Sary. The King signed the royal decree but advised the two co-prime ministers that they should get the support of two-thirds of the National Assembly, the representatives of the people of Cambodia, before making the royal decree public and promulgating it.
As the two co-premiers were against a debate in the National Assembly on this matter, the King repeated, before his visitors left him, that the royal decree should be supported in writing by two-thirds of the National Assembly, adding that individual letters addressed by the deputies to the King would suffice.
The two co-premiers gave a formal assurance that they could deliver at least 80 signatures from the deputies agreeing to the amnesty, thus satisfying the King's precondition.
To show his goodwill, Hun Sen pledged, in front of the King and the throne, that he would cooperate closely with Ranariddh in governing the country and that their quarreling would end.
The King was made very happy by this news saying that if the two co-premiers quarreled, as had been the case since March 1996, it would only benefit the enemies of Cambodia.
The same evening, at his wedding anniversary reception, Ranariddh told ASEAN ambassadors of the signature of the royal decree by the King, thus breaking the promise made to the monarch and making the amnesty public.
The royal amnesty signed by the King granted Ieng Sary a pardon for the sentence passed on him by the "international tribunal" in 1979 and granted immunity from prosecution under the 1994 legislation outlawing the Khmer Rouge.
It did not, however, give Ieng Sary immunity from possible future war crimes or genocide trials for his role in the regime, which claimed the lives of thousands of Cambodians.
Ieng Sary has claimed over the years since the amnesty that he is completely innocent of the crimes he is alleged to have committed. He insists that most decisions were made by a so-called "gang of four" composed of Pol Pot (already dead), Nuon Chea (living in Pailin) who was the real "brother number two," Son Sen and his wife Yun Yat (both murdered in June 1997.)
He has also claimed that after the "Democratic Kampuchea" government was formed in April 1975, not a single Cabinet meeting was held. This again is plainly not true, as the minutes of Cabinet meetings are available and he attended some of the meetings.
In his memoirs for the period, which I have just completed translating and which will be published in Bangkok before the year's end, the King tells how on Jan. 5, 1979 he was summoned to a meeting with Pol Pot at Government House, where he was informed of the Vietnamese invasion of Cambodia and asked to plead the cause of his nation and people at the UN Security Council in New York, which the King accepted.
Pol Pot told Sihanouk that all his family could leave Cambodia the same afternoon in a special Chinese plane but Ieng Sary intervened to say that only the King and Queen could leave and that the rest of the family would remain in Phnom Penh.
Ieng Sary wanted to keep what was left of the King's own family in Cambodia to ensure that the King did not say or do anything detrimental to the regime. But Pol Pot prevailed and everyone left that afternoon.
At a press conference on Sept. 9, 1996 Ieng Sary said, in answer to a question from a foreign journalist, that he did "not feel remorse because as deputy prime minister in charge of foreign affairs he had nothing to do with the genocide."
Next, he may say, as the Nazis at Nuremberg did, that he was following orders!
I would suggest that Hun Sen and the Cambodian government need not fence themselves in behind the notion of "national reconciliation" to defend this gang of murderers who currently enjoy a rather comfortable life in Pailin and Phnom Penh, while their victims have to live side by side with their abusers.
Any politician that does so cannot be trusted to guide their nation towards a peaceful or democratic future. Just as those who equate enforcing criminal law with revenge show no respect for the law or human rights.
When such a government abdicates its responsibilities to punish violations of human rights, as the Cambodian government appears to be doing, the international community should step in.
I realize that this issue is a thorny one but I would suggest that the Cambodian prime minister will earn the respect of his own people and the international community only if he gives the right answer to his people's cry for justice and ceases trying to defend the indefensible.
Julio Jeldres is the official biographer to His Majesty King Norodom Sihanouk of Cambodia. He has just completed the translation of His Majesty's memoirs Prisoner of the Khmer Rouge.
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