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Cambodia's
legal system on trial
By Alan Boyd
Cambodia has said it is too busy to put the fading Khmer Rouge leadership in
the dock for orchestrating a four-year genocide that may have taken as many as
two million lives. But human rights monitors say it probably makes no
difference whether the few remaining cadres have their day in court, for it is
the tainted Cambodian system of justice that is now being put on trial.
The government in Phnom Penh said at the weekend that it would be unable to
ratify a United Nations trial framework "for several months" because it was
preoccupied with planning the July 27 general election. As there is no National
Assembly session scheduled until late in the year, it is likely to be well into
2004 before a specially appointed tribunal can be assembled - even if the new
administration doesn't find fault with the agreement.
By the time sentencing takes place, probably three years later, the jailing of
less than a dozen sick and feeble septuagenarians for crimes that occurred
almost three decades before may well seem anti-climactic. "In a sense it no
longer matters whether the individuals concerned end up in jail, as most are so
frail that they will probably cheat justice in any case. But it is important a
trial is held so that we can rebuild the Cambodian people's trust in justice
and the system of law," said a Phnom Penh-based diplomat.
There is little enthusiasm within the Cambodian government for a show trial
that might reignite painful conflicts in society and focus attention on the
former Khmer Rouge links of some top government figures. Most of the inner
circle of leadership joined the Marxist guerrilla organization in the early
1970s, when it was predominantly a nationalist movement opposed to the
feudalistic monarchy of Prince Norodom Sihanouk. Prime Minister Hun Sen was a
cadre on the eastern border with Vietnam. Sihanouk himself linked up with the
guerrillas after being overthrown by a coup in 1970, though he eventually
became their most famous captive.
International pressure for the Khmer Rouge leadership to be brought to trial
began after Phnom Penh was liberated by Vietnamese forces in 1979, and the full
extent of its atrocities became evident. A puppet government installed by
Vietnam under Hun Sen sentenced paramount leader Pol Pot to death in absentia
in 1979, along with former foreign minister Ieng Sary and several other close
aides.
Hun Sen subsequently pursued a guerrilla war against the Khmer Rouge and two
allied factions for four years. But global politics had intervened by the time
a peace accord was signed in Paris in 1991.
Phnom Penh refused to have provisions for a genocide tribunal included in the
agreement, as did China, the chief political and military supporter of the
Khmer Rouge. Fearing a resumption of the war, the US and other negotiators
backed down.
Human rights activists were infuriated when Hun Sen declared an official
amnesty for Khmer Rouge members in 1996 on the grounds that a trial would
merely open old wounds. "I would suggest that Hun Sen and the Cambodian
government need not fence themselves behind the notion of 'national
reconciliation' to defend this gang of murderers who currently enjoy a rather
comfortable life while their victims have to live side by side with their
[abusers]," said former diplomat Julio Jeldres, who is a prime advocate of a
genocide trial. "Any politician that does so cannot be trusted to guide their
nation toward a peaceful or democratic future. 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."
The United Nations did attempt to intervene, but for years was thwarted by the
uncompromising stance of Phnom Penh.
Pol Pot died in 1998 without being brought to trial. Ieng Sary, "Brother Number
Three" in the hierarchy, was officially pardoned in 1996 after negotiating the
surrender of several middle-ranking cadres, and now lives in a luxury villa in
Phnom Penh.
Deputy leader Nuon Chea, the most senior surviving Khmer Rouge leader, was
pardoned in 1998 after quitting the organization and has a house in the former
stronghold of Pailin, bordering Thailand. So does the group's long-time
spokesman and peace negotiator, Khieu Samphan. Son Sen, probably the
fourth-ranking leader, was murdered in 1997 together with his wife Yun Yat,
another top cadre.
Only two prominent figures are in prison: former southwestern army commander Ta
Mok was captured in 1999, as was prison commandant Kang Kek Ieu, who oversaw
much of the genocide. Another member, ex-general Sam Bith, was sentenced to
life in prison late last year, but the charges related to the murder of three
Western backpackers in 1994 and not the Khmer Rouge era.
While United Nations officials have said the pardons should not be used to
block human rights trials, Phnom Penh's insistence that Cambodian laws take
precedence has made it likely they will be.
The draft agreement hammered out with the UN, after five years of often bitter
negotiation, calls for the establishment of special courts that would have some
international characteristics but would essentially be operating within the
Cambodian legal system. Unlike the war crimes tribunals in the former
Yugoslavia and Rwanda, the hearings would most probably be directed by
Cambodian judges, who are routinely exposed to domestic political pressures.
"Cambodians deserve the highest standards of justice to prosecute those
responsible. They deserve to know the truth about what happened, and why," said
Mike Jendrzejczyk, Asian director for Human Rights Watch. "Instead, this
proposal represents the lowest standards yet for a tribunal with UN
participation."
Even the tribunal's mandate is weaker than the Yugoslavian trials, which set
the most recent standard for international justice. Courts can try only Khmer
Rouge figures "who were most responsible" for crimes against humanity, an
inference of guilt that may be difficult to prove.
It is not even certain that the will of the Cambodian people is behind a public
showcase that might strain the tentative healing process that has been underway
since 1991. At best it appears that opinion is equally divided.
Yet many Cambodian intellectuals believe that the wounds cannot be properly
cleansed until the poison has been expunged. There has been no Cambodian
version of a South African Truth Commission, and no Bosnian or Nuremberg style
of formal investigation. Few efforts have even been made to promote grassroots
reconciliation.
On the contrary, the post-Khmer Rouge era has been marked by a breakdown of the
rule of law, as government figures and members of the judiciary have colluded
with organized crime bosses. Justice is available only to those with the
influence or cash to afford it. Corruption is so pervasive within the public
sector that most people have lost faith in the democracy that was promised in
1991.
"Fair trials and due process are not negotiable," Amnesty International said in
response to the UN trial agreement. "It is absolutely essential that justice is
both done and seen to be done in Cambodia, not only as an important step to end
the culture of impunity which prevails in Cambodia to this day but also to
ensure that the proposed tribunal does not set a dangerous precedent for other
similar judicial mechanisms being considered around the world."
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