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Cambodia on trial over genocide
trial
By Alan Boyd
Bosnia's
war tyrants are still free, despite the silent testimony
of hundreds of mass graves. Rwanda jailed a prime
minister, but has little else to show for nine years of
harrowing – yet mostly unnoticed - genocide trials. Now
Cambodia is preparing to bare its soul following
agreement with the United Nations in late December on
the establishment of a tribunal to hear evidence of
alleged crimes against humanity by Khmer Rouge
guerrillas in 1975-79.
As with the two previous
trials, the hardest bit has been to get started: it is a
quarter of a century since the first evidence of
atrocities, linked to the systematic killings of at
least 1.7 million Cambodians, began to circulate.
One reason for the delay is that Cambodia does
not easily fit the profile of a genocide under the UN's
definitions of international law, since its architects
were essentially motivated by political aims rather than
ethnic hatred. Internal political interference,
diplomatic frictions and legal squabbles have also
conspired against efforts to lift the lid on Asia's
worst modern-day massacres, and there is little doubt
that many would prefer time to make the final ruling on
Pol Pot's clique.
Even autocratic premier Hun
Sen, never a strong advocate of war trials, complained
in 2000 that "we need to have a court soon or the ghost
of the Khmer Rouge will haunt us".
Blame the
delay on the Cold War, with its Byzantine array of proxy
armies in Indochina, that independently pitted China and
the United States – represented by remnants of the Khmer
Rouge and two non-communist guerrilla forces – against
Soviet ally Vietnam through the 1980s.
Although
it was ousted from Phnom Penh in 1979 by Vietnamese
forces, the Khmer Rouge was able to retain diplomatic
leverage because Washington and Beijing ensured that the
clique held on to Cambodia's seat in the UN General
Assembly.
It wasn't until 1994, after cracks
began to appear in the Soviet bloc and Cambodia was able
to conclude a peace treaty and hold democratic
elections, that the US backed calls for a genocide
tribunal.
A further three years elapsed before
Cambodia, now under the control of Hun Sen, following a
bloody coup, responded. The government's reticence was
no surprise: Hun Sen is a former Khmer Rouge cadre, as
is popular monarch King Norodom Sihanouk.
Nonetheless, Hun Sen, a chess player who appears
to thrive on diplomatic standoffs, accepted as far back
as 1994 that a trial was inevitable. He has merely
sought to minimize the fallout by ensuring that the
strings remain firmly in Cambodian hands.
Since
the Nuremberg Nazi trails after World War II, the UN's
standard approach has been to hand jurisdiction for war
crime trials to a panel of international judges who can
function without the distraction of domestic social and
political pressures.
Hearings in the former
Yugoslavia are being held under a direct UN mandate at
The Hague; Rwanda has played virtually no part in the
trial of 80 people implicated in the 100-day massacre of
Tutsis and Hutus in 1994, with hearings taking place in
neighboring Tanzania.
But Cambodia, ever
sensitive to issues of sovereignty and foreign
interference after two decades of civil war, offered the
UN only a subsidiary role. And this gesture was mostly
aimed at procuring international aid.
"Prime
Minister Hun Sen has stated repeatedly that Cambodia
will and can carry out the trial on its own if the
international community does not wish to participate,"
noted Helen Jarvis, a researcher with Yale University's
Cambodia Genocide Program.
"The law provides
explicitly for three options (in this order of
preference) : a trial with UN participation; a trial
with participation from individual member states of
'international legal personalities'; or a completely
Cambodian legal process," she added.
None was
acceptable to the UN. Acting on instructions from
Secretary General Kofi Annan, the world body formally
withdrew from negotiations in 2001 because it doubted
that a Cambodian court would be able to guarantee
"independence, impartiality and objectivity".
There were also some legal obstacles over the
penalties for convicted war criminals, with Cambodia
rejecting the use of capital punishment on
constitutional grounds and refusing to allow amnesties
or pardons.
While there was a strong basis for
fears of political interference, the background
influence exerted by China, whose own role in the rise
to power of the Khmer Rouge would come under scrutiny in
a trial, was almost certainly a factor.
Kofi
Annan took the unusual step of requesting a mandate from
the General Assembly before the UN Human Rights
Commission that would reopen negotiations, although it
already had secured five previous declarations of almost
unanimous support.
Washington, reportedly
worried that Beijing might use its veto, never referred
the issue to the Security Council, despite China's
strong assertions that it had no interest in something
that was "purely an internal matter for Cambodia".
It would take a compromise arrangement brokered
by Japan, backed by the US, Australia and a loose
grouping of European nations for the talks to get back
on track, resulting in a draft legal framework that won
Cambodian backing late last month.
In a radical
departure from its previous position, the UN accepted a
formula for an Extraordinary Chambers that will see a
majority of Cambodian judges sitting at all levels of
the tribunal, though with at least one foreign judge
participating in any judgment.
Each will have an
autonomous prosecutor and investigating judge of
equivalent status sitting in a pre-trial chamber that is
intended to resolve procedural disputes before they
reach the full tribunal. In the most critical concession
by the UN, the hearings will be conducted under
Cambodian national law, embracing international human
rights edicts only when there is no domestic legal
basis.
Hence, for the first time the global
community will witness a nation effectively trying its
own citizens for crimes against humanity, evoking
troubling issues of morality and discretionary judgment
in a country that is still trying to understand what
went wrong during the 1970s.
Human Rights Watch,
a persistent critic of the tribunal framework, charged
that the process contained "such fundamental structural,
technical and political flaws that it is unlikely to
provide a measure of justice to the millions of victims
of the Khmer Rouge".
The monitoring group added:
"Nor will it serve as the foundation of justice for the
Cambodian people or provide answers about the motives
and workings of a regime that committed some of the most
serious and systematic human rights violations in
history.
"There is little doubt that so long as
the Cambodian government continues to exercise direct
control over the Cambodian judiciary - and there is no
prospect of fundamental change in the foreseeable future
- any tribunal with a majority of Cambodian judges and a
Cambodian co-prosecutor will fail the most basic test of
credibility with Cambodians and the international
community."
Oddly, Annan appears to agree. When
he announced the agreement in early 2003, the UN chief
decried the Cambodian courts for having "little respect
... for the most elementary features of the right to a
fair trial".
Annan expressed doubt that the pact
would be fully respected by the Extraordinary Chambers
and that "established international standards of
justice, fairness and due process might therefore not be
ensured".
The UN has the option of withdrawing
its aid and support for the tribunal at any time if the
standards are breached. But this would end the
international community's mandate to monitor a trial
that sorely needs outside scrutiny.
Yet the
mandate itself is so narrow that it may all become
academic. Instead of focusing on individual atrocities,
the trial jurisdiction is restricted to "senior leaders
... and those most responsible for the crimes". This has
reduced the potential pool of perpetrators from hundreds
to just a handful.
Studies by American
University have indicated that only seven former Khmer
Rouge leaders probably face indictment: Nuon Chea, Ieng
Sary, Khieu Samphan, Ta Mok, Kae Pok, Sou Met and Meah
Mut. Paramount leader Pol Pot died in 1998.
Of
those who remain, Ta Mok is expected to be reprieved in
return for testifying for the prosecution, while Ieng
Sary, the regime's former foreign minister, was granted
an amnesty by the Hun Sen government in 1996.
This would leave only former party number two
Nuon Chea and president Khieu Samphan among the top
leadership going to trial, presenting a hollow victory
for those who would seek to lay Cambodia's torment to
rest.
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