Analysis

While the government yesterday brushed off attempts by the opposition Cambodia National Rescue Party to bring a case against it to the International Criminal Court as “a joke”, international legal experts said that, legally speaking, the odds might not be so long after all.

Cambodia is under the ICC’s jurisdiction as a signatory to the Rome Statute, and Richard Rogers, the lead investigator commissioned by the CNRP, has said that his complaint will deal with Cambodia’s widespread and often-violent forced evictions – acts that could constitute crimes against humanity under the ICC’s articles if they are deemed grave enough.

If domestic courts are incapable of addressing the issues – a long-standing criticism of Cambodia’s judiciary – then “Mr Rogers might have a chance”, said Dr Harmen van der Wilt, a professor of international law at the University of Amsterdam.

“Cambodia is a state party to the Rome Statute, so the major jurisdictional hurdle is overcome,” van der Wilt said in an email yesterday, noting that “the evictions would arguably qualify as crimes against humanity”.

“As long as the government itself does not take any action [to investigate alleged abuses], the admissibility issue does not arise,” he added.

Furthermore, the opposition’s stated aim of trying Prime Minister Hun Sen isn’t out of the question either, van der Wilt continued, citing the ICC arrest warrant issued against Sudanese President Omar al-Bashir.

International attorney Michael Karnavas – a former defence counsel at the Khmer Rouge tribunal – said in a lecture on the possible politicisation of the ICC at Brown University last month that while the CNRP’s complaint may have strong legal footing, it was nonetheless an “obvious” attempt to use the court for political gains.

“Since the courts in Cambodia have been deemed in the past to be neither fair nor impartial, and since the likelihood of an objective investigation and prosecution by the national authorities is rather remote, there is a strong case for ICC intervention, provided of course the gravity test is met,” he said in an advance summary copy of his remarks provided to the Post.

However, despite the fact that “the [Cambodian] institutions which are responsible for ensuring the rule of law are substandard, even on a good day”, Karnavas called the CNRP’s attempt to file a complaint to the ICC “a pretext to score politically against the [ruling] CPP”.

Multiple representatives of the CNRP could not be reached for comment yesterday. Without speculating on the complaint’s chances of acceptance, Karnavas went on to argue that the court should consider enacting measures “to combat or at least limit abusive attempts to drag the ICC into the sordid quagmire of domestic politics”.

Council of Ministers spokesman Phay Siphan agreed that the CNRP’s move was a political ploy.

“They try to manipulate the political situation,” he said. “That’s what they want to earn from that action.”

Siphan went on to argue that the ICC did not automatically have jurisdiction in the matter simply because Cambodian court’s have flaws.

“We’re not a failed state,” he said. “We accept that we have some flaws, we accept that we have some not-up-to-date laws, but we are a nation.”