THE Khmer Rouge Tribunal Law was approved by Cambodia's Constitutional Council on
Feb 12 with the provision that sections of Article 3 be revised in order to conform
to the Cambodian constitution.
Specifically, the Council ruled that the KR Law's linkage of penalties for homicide,
torture and religious persecution to the 1956 Cambodian penal code violated the Cambodian
Constitution's Article 32.
The 1956 penal code decrees the death penalty for those crimes, a punishment explicitly
forbidden by Article 32 of the constitution.
The Constitutional Council has now instructed the National Assembly to insert a clause
in Article 3 stating that the death penalty is not to be used.
According to Chairman of the parliamentary Legislative Commission Monh Saphan, the
requested insertion is unneccessary because Article 38 of the KR Law already disallows
the death penalty.
"I don't think there's any reason for a full session of the National Assembly
to debate [the requested insertion]," Saphan said. "We're just waiting
for the approval of the National Assembly President (Prince Norodom Ranariddh)."
However it remains uncertain that the KR Law will get Prince Ranariddh's approval
and be passed to King Norodom Sihanouk for final signing into law before the King
departs for Beijing for medical treatment on Feb 21.
The Prince told reporters on Feb 14 that he had yet to receive the Constitutional
Council's request and that the king was "exhausted".
Even if the KR Law is approved by Feb 21, legal observers and representatives of
civil society say the KR law's Article 3 contains other legal loopholes that could
effectively stymie effective prosecution of those whom tribunal co-prosecutors select
as "senior leaders of Democratic Kampuchea and those [most] responsible"
for the Cambodian genocide.
Potential controversy arising from the KR law's reference to the 1956 penal code
for crimes not covered under international legal definitions of genocide, war crimes
and crimes against humanity do not end with the Constitutional Council's objections
to the old penal code's inclusion of the death penalty.
Article 3's retroactive 20-year extension of the 1956 penal code's 10-year statute
of limitations is being described by legal observers as "a gift" to the
defense teams of the KR suspects.
The extension enables the court to indict suspects for crimes committed between 1975-1979
but who under the terms of the 1956 penal code 10-year statute of limitations were
immune from prosecution after 1989. Article 3's twenty year extension makes any potential
KR tribunal suspects liable for prosecution until 2009.
Khmer Institute for Democracy Executive Director Lao Mong Hay decries the move as
"a violation of the basic principles of law".
"No civilized nation will accept retroactivity of law," Mong Hay said of
According to Mong Hay, the retroactive extension also contradicts the terms of the
Paris Peace Agreements of 1991.
"In Cambodia [the non-retroactivity of laws] is instituted in black and white
in the Paris Peace Agreement Annex 5," he said. "It prohibits retroactive
application of law and is signed by 18 countries."
Sok Sam Oeun, Executive Director of the Cambodian Defenders Project, agrees that
the retroactive extension of the statute of limitations will pose a serious problem
to successfully prosecuting former KR leaders.
"There's one point in law that you can't argue, and that's that law can't be
retroactive," Sam Oeun said. "The defense lawyers will be able to say that
this law is unconstitutional because it's against the principle of fair law."
A legal observer who has closely studied the KR tribunal law says that the extension
of the statute of limitations raises serious questions about the integrity of the
entire trial process.
"Where's the due process in 11 years after the original statute of limitations
expires, it's extended by another 20 years?" the legal observer asked. "There's
supposed to be certainty in the law - where's the certainty in retroactively extending
an expired statute?"
But what the KR law's Article 3 takes away from victims of the Khmer Rouge in their
search for justice, it apparently more than makes up for in Article 36.
Article 36 allows victims of 1975-1979 Democratic Kampuchea equal status in appealing
the decisions of the court along with the accused and the tribunal's Co-Prosecutors.
"[Article 36] makes victims litigants," the legal observer said of the
provision. "There's certainly no shortage of victims, and we could potentially
have 10 million claimants...it could be the biggest class action suit in history."
Mong Hay says that by allowing victim appeals, the right of victims to press for
restitution should also be invoked as is allowed under Cambodian criminal law.
"Suppose Khieu Samphan issued the order to evacuate Phnom Penh [on April 17,
1975], forcing people out of their houses...suppose he's found guilty," Mong
Hay said. "All property [stripped from people in April 1975] should be returned
to their rightful owners."
Sok Sam Oeun is also supportive of the right of victims to appeal and press for restitution
from convicted former KR leaders. He also says the right of appeal should be extended
to other interested parties, "such as NGOs".
But he cautions that the ambiguous language of Article 36 needs to be clarified.
"I think that the law should state clearly how [victims] can appeal and on what
points they can appeal," Sam Oeun said.
"In terms of a fair trial, those who appeal should be able to claim restitution,
but the appeal process needs to be more clearly defined."