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Logo of Phnom Penh Post newspaper Phnom Penh Post - Comment: Khmer Rouge trial law makes legal history Commentary

Comment: Khmer Rouge trial law makes legal history Commentary

The National Assembly's Jan 2 approval of a law authorizing the formation of a special

tribunal to hold accountable the architects of the murderous Pol Pot regime is a

landmark that if implemented with goodwill and integrity by both the UN and the Cambodian

government could chart new frontiers for international law and justice.


Potentially it could also have a profound effect on Cambodian society by taking the

first step to ending its culture of impunity and exorcising the ghosts of the past.

However this legislative landmark, which finally addresses the tragedy that has haunted

Cambodia since 1979, does not satisfy some human rights organizations.

But according to analysts, the draft law unanimously passed by the National Assembly

does not seriously alter the main substance of the prior agreement with the UN.

Critics of the joint UN-RGC MOU which has underpinned the KR trial draft law have

homed-in on weaknesses of the Cambodian judiciary. But after such a tortured process

of negotiations and often acrimonious ping-pong between the UN and Phnom Penh, some

shortcomings are the product of mutual suspicion and acceptable compromise.

Undeniably, the credibility of the tribunal will hinge on Hun Sen's capacity to allow

the tribunal to make decisions he disagrees with and its resistance to the political

manipulation that plagues Cambodian courts.

It also remains to be seen whether the checks and balances agreed by the UN and the

Royal Government will be sufficient to guarantee judicial independence.

However, any judgment about the legal flaws of the law and its compatibility with

international legal standards must also take into account how the international community

for so long denied the very justice to Cambodia, that it now seeks so belatedly to


After 1979 ,when the enormity of the crimes committed became apparent to the world,

NATO governments led by Washington ignored Pol Pot's crimes and in application of

cold war logic at its most perverse embraced the genocidal Khmer Rouge as de facto

allies in a vengeance-war against Vietnam and the new government in Phnom Penh.

Although the issue of accountability for the Cambodian genocide was raised by international

NGOs, the Cambodian government and Cambodian survivors in exile, their appeals for

justice fell on deaf ears from 1979-1997.

The international community and even the UN Human Rights Commission made no effort

to bring to justice the architects of the "killing fields" because it was

not politically convenient to allow human rights to interfere with cold war vendettas.

While Cambodia's claim to a tribunal was frozen in time, more recent genocides in

Rwanda and the former Yugoslavia leapfrogged into the picture in the nineties.

Thomas Hammarburg, the UN's Special Rapporteur on human rights for Cambodia, was

the first UN official who did something about this miserable record on the KR. Through

his efforts the UN General Assembly in 1997 belatedly recognized that crimes against

humanity had taken place in Cambodia.

When the negotiations for the tribunal between the UN and the RGC began, both sides

had reasons to distrust each other, with the Cambodian judiciary's record for corruption

and political partiality balancing the UN's shameful seating of the Pol Pot regime

in the UN General Assembly.

That Cambodia has finally passed a credible law - committing the government to cooperate

with the UN - is something to celebrate, even if the timing and nature of the tribunal

are still uncertain.

An International Tribunal for Cambodia - the preferred option for many - was rejected

by China long before Prime Minister Hun Sen articulated complaints over loss of sovereignty.

So the "Mixed Tribunal" - a Cambodian trial with international character

and standards - is in reality the only option. In this untried formula an opportunity

exists to develop a viable alternative to the often unwieldy international tribunals

that have come before.

The Rwanda Tribunal has been criticized for UN bureaucratic bungling and under-resourcing.

Issues of political bias of prosecutors in the former Yugoslavia tribunal have also

been raised. These tribunals are by no means flawless.

It has taken an average of two years for the UN bureaucracy to set up each of those

previous tribunals. If the Cambodian government has the political will, the Phnom

Penh tribunal could start by the end of 2001.

While the "Cambodian Model" of the "mixed tribunal" (which has

now been adopted by Sierra Leone) has many ambiguities, we also have to recognize

that international humanitarian law is still evolving.

If there was such a thing as a "perfect trial", then it should be perfectly

possible to prosecute Henry Kissinger, the mastermind behind the secret US B-52 bombings

of Cambodia.

It is expediency and pragmatism rather than principles of justice that dictates that

only crimes against humanity committed by Cambodians will be judged by a tribunal

and that its jurisdiction is limited to 1975-79.

International justice is still skewed in favor of judging the genocides committed

by leaders of poor nations, while rich nations like the US and Australia are immune

from accountability for past policies toward their indigenous peoples now universally

recognized as genocidal.

But the principle of international justice and the implementation of human rights

is advanced by each new tribunal.

When the king signs the Cambodian trial law, a new paradigm will arise in which all

governments that have been pressuring Cambodia not to have a tribunal will have to

put up or shut-up.

Once the law is passed, any country that attempts to impede the tribunal will be

guilty of failing to respect the sovereign will of the Cambodian parliament, and

interfering in the internal affairs of Cambodia.

The UN and NGOs should watch closely to see which nations are supportive of the KR

law passed by all three parties, and ensure that those nations that profess "non-interference

in internal affairs" really practice what they preach.



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