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
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],"
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.