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
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
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.