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Logo of Phnom Penh Post newspaper Phnom Penh Post - Cambodians can handle a KR trial

Cambodians can handle a KR trial

With help from the international community in the form of training

and legal advice, the Cambodian judicial system, argues American lawyer Michael

Karnavas, has the wherewithal to conduct a genocide tribunal in Cambodia.

Behind the merits of whether genocide trials are indispensable in the Cambodian context,

questions linger: where to hold these trials? Under what law? And under what standards?

The UN Group of Experts has concluded that if there are to be trials they should

be held outside Cambodia before a UN-created international criminal tribunal.

The alternative, however, of having the trials in Cambodia before the national courts

with international standards is more appropriate. Prime Minister Hun Sen was correct

in informing Kofi Annan, the UN Secretary General, that: "an existing National

tribunal of Cambodia should take up the case to charge and convict [if the evidence

warrants] Ta Mok and other Khmer Rouge leaders". Cambodia should not relinquish

its jurisdiction and sovereignty to the international community.

If there are to be trials (in conjunction with and not as a substitute for, a truth

commission), then they should be held in Cambodia, by Cambodian judges, prosecutors

and defense lawyers. "Justice", if that is the aim of these trials, must

be done, and seen to be done, in Cambodia, by Cambodians and for Cambodians.

This can be accomplished by applying Cambodian and international law with international

standards. Of course, two issues remain: a) does the international community have

the will, inclination and commitment to assist and fund such an undertaking without

being in total control?; and, b) will Prime Minister Hun Sen allow a genocide tribunal

to operate independently under international standards?

Why should Cambodia resist an ad hoc international tribunal by the UN?

When the Security Council of the UN took the extraordinary step of establishing the

ad hoc International Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)

for the prosecution of persons responsible for violations of International Humanitarian

Law, it was believed that the international community - after passively watching

these atrocities unfold - finally found the courage and moral fiber to stop impunity.

While showing high minded principles, the Tribunals have thus far yielded minimum

results at extraordinary costs. Four years and $100 million later, these tribunals

have produced less than 2 trials. The cost for each indictment (not trial) for ICTY

was estimated to be approximately $1.3 million. In early 1997, the UN Inspector General

had found that "not a single administrative area functioned effectively"

in the prosecution headquarters of ICTR in Rwanda, or in the tribunal located in

Arusha, Tanzania. The Inspector General's report cited financial waste, mismanagement,

hiring unqualified staff, failing to provide adequate support and hiring unqualified

lawyers. As a result of these findings the UN fired the Registrar of the Tribunal

and the Deputy Prosecutor.

In reviewing the performances of the UN Tribunals one inevitable conclusion is emerging:

there are two sets of standards and justice: one for white Europeans and another

for black Africans. The ICTY for ex-Yugoslavia located at The Hague is well financed,

with high quality judges, prosecutors and defense lawyers. The accused before ICTY

are being assigned as many as four attorneys with full time investigators, travel

recourses and costs. The Judges understand the rules of procedure and have an appreciation

for the rights of the accused.

Conversely, ICTR for Rwanda is under-financed, mismanaged, plagued with fraud, nepotism,

political infighting and ineptness. The quality of judges, prosecutors and lawyers

is sub-standard at best. The judges, at least from my personal experience before

ICTR, did not understand the adversarial system adopted by the UN.

The President of ICTR did not even comprehend the difference between investigation

and cross-examination. He thought it was unnecessary for the defense to be prepared

while the prosecution was presenting its case; he refused to grant hearings or make

written rulings on motions - as required; and he, as well as his colleagues, seemed

indifferent to the rights of the accused.

In fact, even prior to the first trial, the President of ICTR had been quoted in

the press as expressing the opinion that a genocide had been committed in Rwanda

- a critical element that had to be proved at trial. Moreover, the accused before

ICTR were being denied adequate time, resources and legal assistance for a proper

defense.

Naming something "international", naming it "UN", attaching opinions

and findings of "international experts", often creates the false impression

that the highest standards, the highest quality, the highest results will be achieved.

It is a myth to suggest that only a UN International Tribunal is capable of securing,

prosecuting and punishing those responsible for the atrocities during the Pol Pot

regime. It is equally a myth to suggest that the Cambodian legal culture (judiciary,

prosecutors and defense attorneys), is and will remain to be, inept and incapable

of holding credible genocide trials.

The Cambodian Judiciary is competent, in spite its shortcomings. Since the recent

debate began on the genocide trials, prompted by the arrest of Ta Mok and the findings

of the Group's report, the universal mantra of the "experts" has been that

Cambodian Courts are not competent, the judges are corrupt, the judiciary is not

independent, defense lawyers are either afraid or incompetent. And of course, the

attendant result from the chanting of this mantra is that, axiomatically, the UN

is the only credible authority to prosecute the KR. Ask however, how many of these

"experts" have actually witnessed trials, sat down with the judges to see

what their capacity level of legal understanding is, or what the quality of defense

the bar is in Cambodia, and you will learn that most, if not all, of the "experts"

have had precious little contact with the Cambodian legal system.

With the exception of reading about a handful of high profile cases, their exposure

to the Cambodian legal culture is anecdotal. Truth be told, while not perfect or

of the quality that must be required for genocide trials, the verdicts of the two

well publicized trials involving members of the Royal family, were consistent with

and supported by credible evidence - in spite of protestations to the contrary.

Since 1994 there have been intensive efforts in reforming and training every component

of the criminal justice system in Cambodia. There are a sufficient number of judges,

prosecutors and lawyers with the capacity, knowledge and trainability, for the establishment

of a special genocide tribunal in Cambodia. This much was conceded, albeit with reservations,

by The UN Group in its report.

Hun Sen indicated to Mr Annan that the Cambodian government would welcome assistance

from foreign experts, and pledged that the government would not interfere in the

proceedings.

Hun Sen should be taken at his word (as Prince Ranariddh has affirmed in his recent

interview). If he wishes to establish his credibility as a statesman, he must commit

to international standards. The process must be genuine. The pursuit of justice through

fair and just trials must be uncompromising.

What will it take to have international standards and fair trials?

Crafting legislation that will be acceptable and fair will not be an easy task. Cambodia

should solicit the collective opinion of scholars, experts on the law of impunity,

of the holocaust, Nazi hunters, physicians, cultural psychologists, survivors of

the KR atrocities, members of each political party, and experienced jurists, prosecutors

and defense lawyers. The objective should be to assist in the drafting of viable

and coherent legislation for a Cambodian Genocide Tribunal.

This process was used in Rwanda in trying to determine how to deal with the accused

at the national level. What emerged was a statute categorizing the accused into four

levels, from most responsible, deserving automatic death penalty, to the least responsible

deserving a minimum or suspended sentence. With the exception of those in the first

category, all others who were willing to cooperate prior to trial would receive leniency,

though not immunity.

Unfortunately, the Rwandan Government did nothing to create a competent tribunal,

and the accused have been denied even the most rudimentary semblance of justice.

Cambodia must avoid making this mistake.

The National Assembly should pass legislation creating a special

Genocide Tribunal with all the legal accoutrements.

This tribunal should have a clear, identifiable and limited mandate. It should be

financed by the international community in exchange for adopting and implementing

international standards. The current procedure and substantive laws used by the ICTY/R

should be adopted but with some modifications to avoid duplicating the existing problems

of these tribunals.

Logistically, it will take a minimum of two to three years before any fair trials

could be held - irrespective of who holds the trials. Hence, there is adequate time

to select a sufficient number of Cambodia's brightest judges to undergo extensive

training. The candidates should be selected on merit and qualifications. A special

program could be developed at The Hague where they would be taught substantive international

criminal and humanitarian law, the International Criminal Tribunal procedural and

evidentiary rules, and judicial skills such as how to assess evidence, how to make

findings of facts and conclusions of law, and how to draft judgments.

In addition, interactive workshops/ mock trials should be held. Part of the curriculum

should be observing and analyzing ongoing trials at The Hague.

A similar program should be set up for prosecutors, legal advisers investigators,

and court clerks. The Cambodian Crime Lab should be upgraded and the technicians

trained. To ensure a proper defense, a special public defender agency should be created.

These advocates should undergo similar training with perhaps the assistance of the

International Criminal Defense Bar Association and experienced defense lawyers. This

process could be repeated for a second group and even a third, since the trials could

theoretically last for up to a decade. The sustainable benefits would be in the strengthening

of the entire Cambodian judicial system.

A modern courthouse must also be built to accommodate the trials. Since Phnom Penh

does not presently have adequate facilities for its Municipal Court or Supreme Court,

at the conclusion of the trails, the Tribunal could be converted for permanent use

and in addition, could serve as a museum, a law library and a permanent home for

the documentation center.

Assistance from international experts would be required. The objective of the experts

would be to provide legal and technical support for every component of the trial

process. These experts would function as facilitators, not as participants.

Given the nature of the Cambodian tragedy and the current political environment,

I remain convinced that a truth and reconciliation commission is less dangerous and

more appropriate (See Part I in previous issue). However, the collective wisdom of

the Cambodian people may dictate accountability through a formal judicial process.

Limitations do indeed exist in Cambodia, but then, such is the case everywhere, including

in the US, where there are legal executions of minors, executions of the mentally

ill and enforcement of executions before the completion of ongoing procedures and

extradition - at least according to documented evidence presented just last month

in Geneva at the UN Annual Meeting on Global Democratic Rights.

What about Ta Mok ?

The Cambodian Government has every right to prosecute Ta Mok under the KR law drafted

and adopted by the elected National Assembly. The law was designed to prosecute individuals

such as Ta Mok. Should he be convicted, nothing would legally prevent the Government

from prosecuting him for any crimes he may have committed during the KR/Pol Pot regime.

These are separate and distinct crimes.

Ta Mok however must be afforded competent legal representation, with sufficient time

and resources to vigorously represent him. In a recent conversation, the President

of the Bar Association assured me that he had a group of four defense lawyers that

were prepared to defend Ta Mok, but he was waiting for the Military Court to make

a formal request.

Hopefully, he will come to Ta Mok's assistance and not hide behind some disingenuous

excuse, such as the one offered by Legal Aid of Cambodia, that they could not defend

Ta Mok because has financial resources to retain private counsel.

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