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Logo of Phnom Penh Post newspaper Phnom Penh Post - International trial for KR a bad idea

International trial for KR a bad idea


The last thing Cambodians need is the divisiveness and interference of an 'International

Tribunal' in the name of 'justice'. Give peace a chance.

The Prime Minister remains adamant in arguing against an international trial.

Prime Minister Hun Sen achieved what the UN peacekeeping plan and the Paris Peace

Accords failed to achieve - he has de-commissioned the KR and has absorbed them into

Cambodian Society.

Thankfully, though, not as an equal partner in the government, as the international

community was insisting during the peace negotiations (when genocide trials were

not in vogue) which led to the 1991 Paris Peace Accords.

This is a major accomplishment. Hun Sen has every reason to be cautious and skeptical

of an International Tribunal that could and perhaps would unravel the ongoing reconciliation

process.

The weight of historical evidence proves Hun Sen's detractors to be wrong when they

assert that he is against the truth being revealed about the KR.

Long before it became politically fashionable to call for accountability for the

atrocities of the KR regime, Hun Sen stood in the forefront, fighting the KR and

urging the international community to act responsibly - as required by them - as

signatories of the Convention on Genocide.

When the evidence was fresh, witnesses and victims plentiful, and the time was ripe

for investigations and prosecutions of the KR, the international community and the

UN embraced the KR by anointing them as the legitimate representative of Cambodia.

Back then, it was taboo to even acknowledge that acts of genocide or crimes against

humanity may have occurred during the KR reign of terror.

All responsible individuals, parties, governments and international organizations

should be held accountable.

But numerous elements indicate that an international tribunal is counterproductive

and divisive, if not outright destabilizing for the current government.

The current situation in Cambodia, the passage of time, the difficulty in locating

credible witnesses that may shed light on the top decision-makers of the KR regime,

the thousands of documents that have yet to be translated, are concrete conditions

that establish a case for NOT creating an international tribunal.

The KR was not defeated militarily. Through painful negotiations, coupled with necessary,

if distasteful concessions, Hun Sen achieved what he could not do militarily during

the several dry season offensives.

Had the international community been more responsive in the 80s and early 90s, these

concessions would have been unnecessary in order to bring peace, stability and reconciliation.

Nonetheless, these are the same sort of concessions that were granted to the murderous

South African apartheid regime, i.e., amnesty, as a condition of giving up power.

What followed was a "truth commission" that exposed all those responsible,

including government agencies, that had either committed gross human rights violations

or participated in promoting a culture of impunity. Cambodia should follow this lead.

A truth commission could accomplish all the necessary goals,with greater success

than a tribunal. It would also lessen the risks of fresh civil strife and the return

of jungle warfare and acts of terrorism by the KR.

Some NGO types (with little or no actual trial experience) are keen to have an international

tribunal though they do not fully appreciate the precipitous effects it would have

on the Cambodian Government and the Cambodian people.

Easy for some of these pundits to dismiss the KR as a "spent force capable of

only small-scale violence".

Of course, when the fighting breaks out and the killings resume, they are either

safe wrapping themselves around their NGO flags and heading off to a 5 star hotel

with the help of an embassy escort or they elbow their way onto the first flight

out of Phnom Penh.

But what of the poor Cambodians? Who will offer them sanctuary? Who will compensate

the victims and their families from the "small-scale violence"?

It is much too simplistic to assume that the KR are "spent", unable or

unwilling to regroup and rearm themselves, or worst, ready to abandon the same leaders

they blindly followed, for more than thirty years in the malaria infested jungles

of Cambodia.

Though no one rushed to Ta Mok's rescue, it is foolhardy, indeed reckless, to assert

as some have, that the KR will not react to other arrests.

Hun Sen, a heavyweight when it comes to tactical out-maneuvering his opponents and

the KR, is fully cognizant of what the KR is capable of doing.

He knows that if he goes back on his word of honor in granting the KR de facto immunity

(a precondition extracted by the KR for joining civil society), the KR - scarcely

known for their appreciation of the finer points of international legal jurisprudence

- will respond violently.

The UN Group of Experts, recommends that the tribunal "focus upon persons most

responsible for the most serious violations of human rights during the reign of the

Democratic Kampuchea".

The Group goes on to state "We do not wish to offer a numerical limit on the

numbers of such persons who could be targets of investigation.

"It is nonetheless, the sense of the group from its calculations and research

that the number persons to be tried might be well in the range of some twenty or

thirty".

And of course, this number would grow, given that the Group recommends that "the

structure of the tribunal should use unconditional language along the lines of the

Yugoslavian and Rwanda Tribunals, e.g 'persons responsible for serious violations

of human rights committed in Cambodia'."

Who will appear on this list? What does "persons most responsible for the most

serious violations" mean? What specific criteria will be used in making the

decision about whom to prosecute - or better yet - whom not to prosecute, when there

is prima facie evidence of guilt?

What will happen when evidence is gathered and revealed during the trial of killings

and serious human rights violations by persons not in the top leadership or even

in positions of authority? What if witnesses and victims insist on prosecutions (now

that the scab of the wounds have been ripped off) of low-level KR cadres who killed,

raped, tortured, etc.

If the Group feels that "trials also serve to establish for the Cambodian Community

what is unacceptable conduct and what should be its inevitable consequences",

then how could it then recommend: "We [the Group] do not believe that prosecution

should attempt to bring to justice all or even most people who committed violations

of international or Cambodian law".

"Truth is not a substitute for the healing of the wounds that can only come

when justice is done", according to one human rights expert (though the weight

of the evidence of the South African Truth Commission proves otherwise).

How is justice accomplished if an international tribunal or the Cambodian Government

ignore and refuse to prosecute each and every individual, irrespective of rank, when

credible evidence establishing probable cause is brought forward? The perception,

rightly or wrongly, will be that some killings are acceptable. If you do not fit

into the category of "most serious/most responsible", you could and would,

get away with murder.

Herein lies the problem. "Justice" for some, but not all - sanctioned no

less by the UN.

Logistically, an international tribunal could not prosecute everyone.

It is simply too expensive, time consuming and cumbersome.

Given the fact that thousands of documents have yet to be translated and analyzed,

and that credible investigations have yet to begin, it is impossible to predict who

will make the who's who list for prosecution. With the exception of the handful of

KR Standing Committee members, many of the 2nd and 3rd tier level KR leaders, who

still command respect and loyalty from their cadres, have something to worry about.

As the investigations begin and names exposed, this group of KR commanders will axiomatically

be targeted for investigation and prosecution.

Ieng Sary, Nuon Chea and Ta Mok, all candidates for an international tribunal.

Consequently, it follows that they will indeed retreat and revert to their acts of

impunity.

Let's be realistic.

Equally unpredictable is what these investigations will turn up with respect to low-level

killings and other human rights violations.

My 17 years as practicing criminal defense lawyer have taught me that in trying to

make a case against someone in a leadership position, it is necessary to start at

the bottom and work your way to the top in a pyramid fashion.

This is necessary because far too often the paper trail and evidence is absent for

those who are most responsible.

The Group "believes that witnesses who can testify to the occurrence of atrocities

and the conduct of individuals and the identity of individuals who carried them out

can be located with relative ease" but then they go on to conclude that locating

witnesses "who can testify to the role of the KR leaders in procuring the occurrence

of atrocities, as such leaders are likely to be the targets of investigations and

trial" will be more problematic. This proves the point.

Given the command structure of the KR and their penchant for secrecy, the only way

to work up the chain of command is to investigate from the bottom up, obtain convictions

or grant immunity from prosecution. This is the universal method of convincing unwilling

witnesses to testify.

To think that someone, after nearly 30 years, is going to implicate him or herself

at the risk of prosecution, and provide evidence against others in higher positions

at the risk of being killed, is naive.

Moreover, the prosecution under the current rules of procedure for the two existing

ad hoc international tribunals has no discretion to either plea bargain for a lighter

sentence or grant immunity in exchange for cooperation.

Hence, the likelihood of "flipping" witnesses (turning an accessed or target

to an investigation into a snitch) is highly unlikely.

If the international tribunal were to start the prosecutions by first trying the

top KR leaders, the chances of obtaining legitimate convictions are remote - particularly

given the nature of the available evidence and the technical aspects of establishing

beyond a reasonable doubt each and every element that a genocide was committed.

Proving that an accused is in fact guilty of genocide - assuming, of course, the

accused are truly afforded the resources, time and opportunity to mount a vigorous

defense - as they are entitled under the International Bill of Human Rights and the

International Covenant on Civil and Political Rights - is not an automatic conclusion.

More problematic perhaps is what will happen when witnesses and victims in the provinces

begin to implicate their neighbors.

Old scores, long forgotten or forgiven, may be reopened. Victims and witnesses may

be targeted by either the accused or their family and friends.

And there is the question of how does the Cambodian Judicial system deal with this

sort of prima facie evidence of serious human rights violations.

For the sake of consistency, reaffirmation of societal norms and the principles of

the Rule of Law, the Cambodian Government will be compelled to prosecute - lest the

indelible impression is left that some killings are less serious and undeserving

of prosecution, than others are.

Where will the sense of "justice" be if the majority of those who committed

the atrocities go unpunished?

And does this not feed into the existing culture of impunity and the taking of justice

into one's hand out of frustration and revenge? Intellectually we may all understand

that "pure" justice is simply impossible in the Cambodian context.

However, try to explain that to the victims, who unsophisticated as they may appear,

are still capable of recognizing a double standard of justice - particularly when

perpetrated by the UN.

Lastly, it should be noted that even if an ad hoc international tribunal for Cambodia

was agreed by all parties concerned (including China, which is likely to block the

creation of a tribunal by exercising its veto power in the UN Security Council),

it would take a minimum of two years before the tribunal is established.

By the time the investigators and prosecutors assemble the evidence and seek an indictment,

by the time the defense, if permitted, prepares a vigorous defense (not the case

for the accused before the International Tribunal for Rwanda), and by the time the

first trial is completed (predictably it would last anywhere from 12-18 months),

we are looking at approximately three to four years before any results are achieved

- which may or may not be a conviction - particularly with respect to the charge

of Genocide.

Considering the circus atmosphere that will follow with the onslaught of UN personnel

and their armada of Toyota jeeps (think back on UNTAC), the business of the Cambodian

Government will be sidetracked.

The Cambodian Government has real and immediate problems that need attenton and solving,

such as: the economy, environment, illegal logging, drug trafficking, rampant crime,

downsizing the military, reversing the endemic warlord mentality that exists in some

of the provincial administrations, and so on.

An international tribunal will end up being a significant distraction that will require

an enormous amount of the Prime Minister's time and energy. Cambodia needs to move

on.

Hun Sen is correct in insisting that the whole truth be brought out.

Full, not partial, accountability is the mandate. The scope of any inquiry must be

broadened to include everyone who supported the KR, the US policy of carpet bombing

- which drove many to join the KR, the UN's stance in supporting and recognizing

the KR - even after learning of the atrocities, and so on.

Trials are unlikely to permit this sort of comprehensive inquiry, by dismissing this

sort of evidence (which no doubt will be used by the defense to the consternation

of the "human rights" advocates), as being "beyond the scope",

"irrelevant", "more prejudicial than probative", etc.

A truth commission is more equipped to deal with the attendant problems that will

arise with any inquiry into the past.

The National Assembly could adopt a modified version of the South African model.

The "Cambodian Truth Commission" should include the input, support and

assistance of the international community in order to ensure not only funding, but

also credible and identifiable standards.

President Mandela and Archbishop Tutu no doubt would offer their assistance in the

creation of a commission.

The inquiry should be unqualified and the scope all-inclusive. Legislation could

be passed mandating anyone subpoenaed be granted immunity in order to appear before

the commission and offer truthful testimony.

Failure to appear or testify truthfully would be a crime punishable by imprisonment

and perhaps criminal prosecution for any alleged crimes having been committed during

the period in question - if the evidence warrants such action.

A panel of experts, historians, academicians, from many disciplines, would be invited

to add to the debate.

International funding would be sought to expedite the tedious process of interpreting

and analyzing all available documents. The UN and the various countries responsible

for supporting the KR would be asked to participate - though queried to what extent

they would cooperate in exposing their past sins. The stated objective of the Truth

Commission would be to get to the truth - finally.

In addition to the Truth Commission, Cambodia must: continue the long process of

instituting structural reforms; erect monuments and museums memorializing the inhumanities

of the KR regime; and institute a legal awareness educational program at the grass

roots level that would focus on changing behavior through empowerment with knowledge

of the civil, political and legal rights that all Cambodians enjoy, including the

ethnic minorities.

This multifaceted approach to justice would allow for accountability without retribution

and rehabilitation/reconciliation through awareness.

Bringing human rights violators to justice is the quintessential form of ending the

culture of impunity that has existed for so long in Cambodia.

Unfortunately, to pursue "justice" through an international tribunal is

more likely to polarize than heal the Cambodian society.

Pursuing the "truth" can, however, be done in a manner that does not jeopardize

national reconciliation and peace.

This quest is possible through a truth commission that will, hopefully, with precise

identification of individual guilt based on documented evidence and fair hearings,

replace collective responsibility and expose all the responsible parties, governments

and institutions that have thus far escaped accountability.

- - - - - - - - - - - -
Michael G. Karnavas has been a practicing criminal defense lawyer

for 17 years. In 1994 he helped train the Cambodian Defenders in trial advocacy skills

and from 1995-1996 he worked for the Cambodian Court Training Project of the International

Human Rights Group where he traveled throughout Cambodia training judges and prosecutors.

He spent several months at The Hague, Arusha, Tanzania and Kigali, Rwanda observing

and researching the International Criminal tribunals for the former Yugoslavia and

Rwanda. He was briefly involved in representing Jean Paul Akayesu and appeared on

his behalf before the International Criminal Tribunal for Rwanda.

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