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Logo of Phnom Penh Post newspaper Phnom Penh Post - KR trial: "New creature"

KR trial: "New creature"

A COMPROMISE between Cambodia and the international community on an international-standard

trial of Khmer Rouge leaders may be in sight, although domestic court proceedings


After meeting UN human rights envoy Thomas Hammar-berg on May 18, Prime Minister

Hun Sen announced acceptance of a foreign legal expert to help draft a law creating

an unprecedented domestic tribunal using international norms and standards and mixed

foreign and domestic judges and prosecutors.

"The tribunal would be Cambodian and at the same time international in character

... This is an absolutely new creature, we've not seen it anywhere in the world before,"

Hammarberg said May 20. "It's not certain that this will work," he added,

"... [but] my response to this is positive."

Hammarberg met UN Assistant Secretary-General Alvaro de Soto in New York May 24 to

discuss UN support for the new proposal, which the rights envoy said "reflects

important progress".

He said he hoped to be able to send an expert to help Supreme Court president Dith

Munty write the law in June; a draft could be ready for National Assembly approval

two months after that.

The government had previously claimed that Cambodian courts were capable of trying

KR crimes, but Hammarberg and other human rights experts have repeatedly decried

the courts as politicized.

"I hope [the new tribunal] would be the best approach under the current Cambodian

political environment, presenting the fewest potential problems and the greatest

potential for impartial justice not only being done, but being seen to be done,"

said Youk Chhang, director of the KR archive at the Documentation Center of Cambodia.

In the meantime, however, the Cambodian Military Court is proceeding with its cases

against jailed KR military chief Ta Mok and prison director Duch.

Duch's lawyer, Ka Samuth, told the Post that "the court will be continuing with

its procedures" while waiting for the new legislation.

Samuth said he welcomed the idea of the mixed tribunal, but hoped that international

assistance would be given to the defense as well as the prosecution.

Thomas Hammarberg reported that the Military Court had refused his office's request

to visit Duch and Mok in prison. "It was not a very clear reason [for the refusal],"

he said.

Ta Mok's lawyer, Benson Samay, told Rasmei Kampuchea that his client was healthy

and enjoying vegetarian meals prepared by the military court cook and a new $700

toilet, according to a May 25 story.

Mok has reportedly also told Samay that Pol Pot's death, thought to be of natural

causes, was "ordered", but Samay did not say by whom.

Documentation Center staff reported that Samay had obtained documents including the

international convention against genocide from their office.

However, Samay did not take any of the hundreds of pages of KR files the Center has

compiled on Ta Mok - which include Tuol Sleng records implicating both Duch and Ta


Ka Samuth reported on May 25 Duch had said "three top Khmer Rouge leaders"

ordered him to commit crimes in his Tuol Sleng prison.

"He didn't name them, but he said two of them were already dead," Samuth


Cambodian law might allow defendants like Duch to cite superior orders to exonerate

themselves; Hammarberg cited this as one problem that the new tribunal, which would

use international norms disallowing such a defense, could overcome.

He said other problems in the Cambodian court system include the lack of a law on

evidence, protection of witnesses, and the lack of domestic statutes criminalizing

genocide and crimes against humanity.

"The only principled way to go is to ... set up an international tribunal operating

with a list of crimes with internationally accepted definitions," said Brad

Adams, a human rights lawyer who spent five years in Cambodia.

Currently, the two Khmer Rouge leaders under arrest have been charged only with crimes

under the 1994 law outlawing the Khmer Rouge.

Court officials have hinted those charges are only for the interim and that they

may charge the pair with murder under a 1981 criminal code, but legal experts say

that law is poorly drafted and politicized.

"If they use [the 1981 law] then any pretense of respecting international norms

will be lost," said Adams.

"This is less a law then a political statement and has been used for political

purposes since its inception. It is dragged out every time there is a tough political

case, though the courts use [a 1992 criminal code] in other criminal matters. This

will make a joke of any trial of Duch on murder charges."

However, Hammarberg said he and Hun Sen did not discuss how the legal cases already

underway could be segued into the proposed new tribunal.



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