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Logo of Phnom Penh Post newspaper Phnom Penh Post - KR trials are vital, but won't solve everything

KR trials are vital, but won't solve everything

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December 12: former Brother Number 2, Nuon Chea, sees the inside of a Cambodian court for the first time - but this was only as a witness for former KR commander Sam Bith.

Shortly before the recent buzz of Cambodia-related activity at the United Nations

in New York, I read the 2002 report of the UN Special Representative for Cambodia

to the General Assembly. It seemed as if the language of what is termed Transitional

Justice had crept in.

It came as no surprise to read a little later that President Thabo Mbeki of South

Africa was offering to share with Cambodia his country's elixir for nations with

dark secrets - a truth commission - and that a Cambodian delegation had traveled

there to learn more about this mechanism. Obviously the interest in truth commissions

has also reached Pailin.

Even with five star justice that satisfies international standards, the chances are

that on their own a limited number of trials of elderly Khmer Rouge leaders are unlikely

to meet the complex needs of a deeply ravaged society that has borne the brunt of

extensive and gross violations of human rights.

For a long time now, the debate has focused, correctly in my view, on the importance

of individual criminal responsibility for atrocities. Perhaps it is now time to widen

that debate. The extent of the atrocities, which have blighted the lives of millions

of Cambodians and been unaddressed by the State for so long now, mean that additional

measures are needed to restore equilibrium.

Transitional Justice is a paradigm that is focused on nations that emerge from legacies

of gross violations of human rights under authoritarian regimes and how they rebuild

shattered lives and communities in the transition to democracy.

Nations in such situations are usually faced with thousands of victims and thousands

of perpetrators. They also tend to have weak criminal justice systems, unstable political

environments and myriad other pressures. These circumstances have led to a re-thinking

of traditional concepts of justice and accountability, and the exploration of additional,

sometimes alternative, mechanisms.

The starting point for Transitional Justice discussions must always be one of principle:

that International Law requires States to hold perpetrators of genocide, war crimes,

crimes against humanity and torture criminally responsible for their actions. This

is not an option but a question of basic legal obligation.

That established, complementary measures can be properly considered. One of those

options is the 'truth commission'. It is essentially a commission of inquiry, with

some wider socio-political purposes.

The first such commission has been traced back to Uganda in 1974. The device spread

in popularity in the mid-1980s in South America, particularly after Argentina created

a National Commission on the Disappeared to investigate the fate of the thousands

who disappeared during the military dictatorship. There have been approximately 30

truth commissions to date, and not all of them have involved the granting of amnesties

for gross violations of human rights.

Studies have shown that the many truth commissions have at least four common objectives:

establishing an accurate historical record, obtaining justice for victims, facilitating

national reconciliation, and deterring further violations and abuses.

A lot of this work has already been done in Cambodia. Take for example, the Documentation

Center of Cambodia (DC-Cam). It has been working to record and preserve the history

of the Khmer Rouge regime for future generations and to compile and organize information

that can serve as potential evidence in a future legal accounting.

The Executive Summary of its 2001 Annual Report says that, "[t]hese objectives

represent our promotion of memory and justice, both of which are critical foundations

for the rule of law and genuine national reconciliation in Cambodia".

Within its vast database must surely lie the 'truth'. However, it has also gone well

into social justice and the creation of a better society through learning from the

past. DC-Cam has conducted and encouraged research on the Khmer Rouge through use

of its materials, assisted with the tracing of relatives and friends, and trained

fellow Cambodians in a variety of useful skills.

In a recent publication, it was suggested that, "[t]he cathartic effect of truth

is the underlying goal of all of the Documentation Center's work. These cathartic

effects help to bring about change in Cambodia, one heart at a time, one Cambodian

at a time, so that eventually, bit by bit, it will have the effect of facilitating

national reconciliation everywhere in Cambodia."

In assessing the viability of having a truth commission in Cambodia, it is important

to stress that this mechanism has both supporters and detractors. Much has been spoken

and written on the important role that victims are given in this forum, and how a

certain closure is attained with the delivery of an official 'truth'.

Some are convinced that it provides a framework for rebuilding shattered states,

communities, families, and individuals. Many note that the truth commission can take

the pressure off a fragile justice system. On the other hand, others are concerned

that the expectations created in the truth commission process are unrealistic; and

at the suggestion that 'truth' and 'reconciliation' do not emerge from criminal justice.

There are concerns at the suggestion that courts of law do not provide a venue for

victims to express themselves or for satisfactory justice. The claim that the truth

commission is a form of accountability is in some quarters viewed with skepticism.

Others vehemently object to the diluting of Rule of Law through the use of such commissions

and the granting of amnesties. They see a move away from the fundamental principles

of the Nuremburg trials, that individual perpetrators of atrocities must be made

criminally responsible for their actions.

I was glad to read that a Cambodian delegation went to South Africa. I sincerely

hope that they will also go to Churchillplein 1 in The Hague, home of the International

Criminal Tribunal for the Former Yugoslavia, to see the sort of justice that is the

rightful due of the Cambodian people.

They should also learn more about how impoverished Rwanda, faced with thousands of

suspected genocidaires languishing in its prisons, is attempting to process many

of these cases through creative use of a traditional dispute resolution mechanism

called gacaca. The work of the many other truth commissions should also be considered.

Closer to home there is East Timor, which has a mixed panel of judges dealing with

international crimes, and a truth commission. This truth commission is a sophisticated

model that is subordinated to the criminal justice system and cannot amnesty for

genocide, crimes against humanity, torture and war crimes; it also uses traditional

justice mechanisms.

Why not also have a look at Indonesia, where the question of what to do with its

huge legacy of oppression under the New Order is still unresolved, and a draft truth

commission law that is heavily influenced by the South African model is criticized

as being inappropriate for its particular circumstances?

One priceless lesson of South Africa is that with political will, sincerity and creative

thinking, a nation can craft its own unique way of dealing with a legacy of gross

violations of human rights and do so in a responsible and meaningful way.

Cambodia would be wise to look around at what other nations are doing, but it need

not jump on the bandwagon and have a truth commission. Cambodia has existing resources

and its own particular needs, one of which is the desperate need to reform and strengthen

its justice sector and assert Rule of Law to hold individuals, regardless of rank

and influence, responsible for their criminal actions. The impunity simply cannot

go on and on and on. It is poisoning everyday life and condemning future generations.

If the latest initiatives to secure the involvement of the UN fail, focus must then

go on the next best option. It may be time for states that are supporting criminal

justice for the Khmer Rouge to consider the exercise of universal jurisdiction through

their own courts. Whichever way it goes, perhaps the seeds for a unique Cambodian

approach may lie in having a nationwide consultation on ways to utilize existing

resources to meet the wider needs of Cambodian society.

Suzannah Linton practices International Law and has worked on accountability for

gross violations of human rights in many countries. She is currently Visiting Fellow

at the Center for Civil and Human Rights, Law School, University of Notre Dame. She

worked in Cambodia in 2001/2002 and has published legal studies on the prosecution

of the Khmer Rouge.

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