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2 Khmer Rouge trial bogs down
in politics By Bertil Lintner
PHNOM PENH - Everything appears set for
Cambodia's trial of the century. A huge building
attached to the country's army headquarters on the
outskirts of the capital has been turned into a
courthouse. Behind it, a temporary detention
facility is being built to house the suspects once
they have been apprehended and brought to trial.
Cambodian as well as United
Nations-appointed international prosecutors,
defenders and judges are at the ready to take their
positions on the court's
benches. The day of reckoning is finally here for
the leadership of the Khmer Rouge, which ruled
Cambodia from April 1975 to January 1979, during
which an estimated 2 million to 3 million people
died from government-ordered executions,
starvation and disease.
Or is it? Last
November, legal experts from the UN submitted an
81-page document titled "Draft Internal Rules" for
"the Extraordinary Chambers in the Courts of
Cambodia". It has yet to be approved by the
Cambodian side and, if an agreement has not been
reached by the end of April, the international
judges will consider asking the UN to withdraw
from the tribunal, the French investigating judge,
Marcel Lemonde, told Asia Times Online in an
exclusive interview.
While people on the
international side are emphasizing "the
extraordinary chambers" part of the tribunal's
charge and insisting on international standards,
their Cambodian counterparts view the trial more
through the sovereign lens of the "Courts of
Cambodia". "We are not speaking the same language
in many different ways," said Lemonde. The result
may be that the accused leaders of the Khmer Rouge
go unpunished for their crimes against humanity.
That would no doubt please China, the
Khmer Rouge's main international supporter during
the Indochina war as well as during its four years
in power. After the Vietnamese invasion of
Cambodia in December 1978 and January 1979,
Chinese support helped the Khmer Rouge hold the
line against Vietnamese troops from bases along
the Thai border.
The latest problems for
the trial began last November, when the Cambodian
Bar Association (CBA) forbade local lawyers to
attend a training program planned by the
London-based International Bar Association (IBA),
and threatened to cancel the program unless it
solely selected the program's participants and
speakers. "The prohibition by the Cambodian bar is
part of a wider scheme of opposition designed to
obstruct the operation of the tribunal," the IBA
said in a statement dated November 24. The IBA
subsequently canceled the program.
The
Cambodian bar, for its part, accused the
international group of "encroaching on its
sovereignty", arguing that under Cambodian law the
local bar is the only body mandated to regulate
the country's legal proceedings. The UN-sponsored
international contingent argues that the CBA
appears to have overlooked Article 2.2 in an
agreement that senior minister Sok An and Hans
Corell, UN undersecretary general for legal
affairs, signed on June 6, 2003, which says: "The
Vienna Convention on the Law of Treaties, and in
particular its Articles 26 and 27, applies to the
agreement."
Article 27 states, "A party
may not invoke the provisions of its internal law
as justification for its failure to perform a
treaty." And besides, international law would have
to apply. According to Robert Petit, the Canadian
co-prosecutor, Cambodia's criminal law is "not
complete and comprehensive, and sometimes
contradictory".
Petit has relevant
international experience, having previously served
as a legal officer in the Office of the Prosecutor
of the International Criminal Tribunal for Rwanda,
as regional legal adviser for the UN's mission to
Kosovo, and as senior trial lawyer in the Office
of the Prosecutor for the Special Court in Sierra
Leone. His Cambodian counterpart, Chea Leang,
comes from a totally different legal tradition:
she and most of the Cambodian judges on the
tribunal were educated in the former Eastern Bloc,
including in East Germany, the Soviet Union and
Vietnam.
Political complications But it is not only a question of different
backgrounds and widely diverging interpretations
of the law. The situation in Cambodia has also
changed quite dramatically since June 21, 1997,
when Cambodia's then co-prime ministers, Prince
Norodom Ranariddh and his bitter rival Hun Sen,
agreed to send a joint letter to the UN
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