The Khmer Rouge Tribunal will probably conduct only approximations of fair trials

because of the real potential for interference by politicians, government officials

and possibly diplomats representing other governments, says writer and lecturer Steve

Heder.

"The real problem is the determination of key political players to prevent the

training and knowledge of the Cambodian judiciary to be put to use against their

fundamental political and economic interests. Left to do their job in peace, the

judiciary are perfectly capable of weighing up evidence and exercising independence

and many are eager to do so given the chance," Heder said Nov. 17 at a panel

discussion organised by the Overseas Press Club of Cambodia.

Heder said his concern was underpinned by "conviction and bitter experience

that the dominance of politicians over the courts is beyond short-term or intermediate-term

correction by capacity-building programs. These have been attempted in Cambodia for

more than 10 years with so far negligible results, as aid donors now increasingly

realise.

"There is good reason to believe an intention exists to ensure the list of suspects

to be tried will be politically determined to shield perpetrators from embarrassing

scrutiny, if not from prosecution, as a few of them at least are now in positions

of some political authority."

There was no evidence implicating Prime Minister Hun Sen (a former Khmer Rouge deputy

regimental commander who deserted in 1977) in KR crimes; and no evidence that anyone

in a position of significant power in the current government was responsible for

KR-era crimes.

However, he said that even if the whole truth exposed who was involved in the commission

of crimes against humanity, it would not bring the government thundering down, nor

would it tear society apart.

Heder said that if the trials were unfair and if the prosecutions were limited by

political factors instead of the text of the law, "the trials themselves are

not likely to add much to our knowledge and understanding of what really happened

under the Khmer Rouge.

"Above all, they are unlikely to grapple with what I see as one of the main

historical questions surrounding the KR, and that is the question of the extent to

which the crimes were either a) a result of a conspiracy hatched by certain or all

senior leaders, in which they gave orders to subordinates to carry out; or b) the

crimes were the result of abuse of delegated authority by their subordinates acting

without orders from above or even contrary to orders, without the knowledge of their

superiors.

"My own view based on the evidence so far is that the crimes include large elements

of both and this needs to be revealed, analysed and understood if we are to seriously

advance legal, historical and moral accountability for the crimes. Dealing with this

issue will help us better confront perhaps the most common debate about the deep

causes of KR crimes, and that is: Were they primarily the result of a foreign ideology

or of local cultural proclivities?"

Dealing with the question of how many could qualify for prosecution, Heder said that

when the Communist Party of Kampuchea was in power, the Central Committee comprised

20-30 members and its core of powerful cadre from the central to the local level

numbered about 1,000 people. Of the 1975 leadership and core cadre, fewer than half

survived the purges that began to devastate the party in 1976 and continued through

until the end of the regime. Many of those who did survive had subsequently died.

"If the notional jurisdiction of the KRT goes down to the KR district level,

it would be likely no more than a few hundred would be still alive. The definition

of senior leaders and those most responsible would have to be legally interpreted

to ascertain who among those would be targeted for investigation. My rough guess

is that no more than 60 cases would fit those categories, including maybe 10 top

leaders," he said.

Heder's publication, "Seven candidates for Prosecution" (revised March

2004, Documentation Center of Cambodia) named seven senior leaders still alive against

whom there was evidence of culpability: Nuon Chea, Ieng Sary, Khieu Samphan, Ta Mok,

Sou Met, Meah Mut, and Duch.

The proposed tribunal is officially known as the Extraordinary Chambers in the Courts

of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic

Kampuchea.

It will cost an estimated $57 million and be funded principally by donor countries

through the United Nations. Very little has so far been pledged. Finalisation of

the budget is awaiting the visit of a UN technical team.