The Khmer Rouge tribunal continued yesterday with the second day of hearings in the trial of the four most senior surviving leaders of Democratic Kampuchea, with debate focusing largely on the 1996 pardon and amnesty granted to former KR foreign minister Ieng Sary.
In addition to Ieng Sary and his wife, former KR social action minister Ieng Thirith, the case also features former KR head of state Khieu Samphan and Brother Number 2 Nuon Chea.
For the second day in a row, Nuon Chea left the hearing early in the morning, telling the judges he would return to the Trial Chamber when his own case was considered.
Yesterday’s hearing instead focused on Ieng Sary, who received a pardon signed by then-king Norodom Sihanouk upon defecting to the government in 1996.
Sihanouk pardoned Ieng Sary in relation to his 1979 conviction in absentia at the People’s Revolutionary Tribunal, convened shortly after the fall of the Khmer Rouge, where he was sentenced to death in absentia along with regime leader Pol Pot. Ieng Sary also received amnesty from prosecution under the 1994 Law to Outlaw the Democratic Kampuchea Group, which criminalised membership of the Khmer Rouge.
In a decision earlier this year, the court’s Pre-Trial Chamber ruled that the pardon and amnesty were no bar to Ieng Sary’s current prosecution.
The pardon, the judges said, related only to his 1979 conviction; the amnesty, they ruled, applied only to the 1994 law and not to the charges under domestic and international law that Ieng Sary currently faces.
This ruling is not binding on the Trial Chamber, however, and defence lawyers argued yesterday that the court could not prosecute Ieng Sary.
“Mr Ieng Sary negotiated that he would only reintegrate [with the Cambodian government] if he received an amnesty from any future prosecutions for any alleged acts,” defence lawyer Ang Udom said. “This was a non-negotiable condition.”
American defence lawyer Michael Karnavas acknowledged that amnesties or pardons for individuals suspected of mass crimes may be “distasteful”.
As in Ieng Sary’s case, however, they were often necessary to end armed conflict, he said.
“I agree that everyone deserves justice, no doubt about it, but I also am a fundamental believer in the power of the law, and the law has to be applied whether we like it or not,” he said.
Prosecutors argued, however, that the amnesty did not apply to genocide and other charges listed in the current indictment against Ieng Sary and that, in any case, amnesties could not be given under international law for crimes of such gravity.
Officials from the United Nations and the Cambodian government were clearly aware of the issues surrounding Ieng Sary’s prosecution as they drafted regulations for the court.
“There has been only one case, dated 14 September 1996, when a pardon was granted to only one person with regard to a 1979 conviction on the charge of genocide,” the 2003 agreement establishing the tribunal states. “The United Nations and the Royal Government of Cambodia agree that the scope of this pardon is a matter to be decided by the [tribunal].”
Prime Minister Hun Sen, then serving alongside Norodom Ranariddh in a coalition government, said in 1996 that Ieng Sary’s pardon and amnesty had been specifically tailored to allow for future prosecution.
“If you study the wording of the Royal [pardon and amnesty], you will see that there is still the possibility to try the crimes committed by Ieng Sary,” Hun Sen said.
“We paid much attention to the wording of the pardon … there are no words in it which ban the accusation of Ieng Sary in front of a court which may be formed in the coming times.”
Trial Chamber president Nil Nonn said yesterday that proceedings this week, originally scheduled to conclude on Thursday, will now stretch into Friday after running behind schedule. Subsequent hearings involving witnesses’ testimony are not expected until August or September.
Towards the conclusion of yesterday’s hearing, the parties discussed the Ieng Sary team’s claim that the statute of limitat-ions for grave breaches of the Geneva Conventions in existence under Cambodian law at the time of the alleged offences had expired, barring their inclusion in the current case.
The prosecution reminded the court, however, that the first defendant convicted at the tribunal, former S-21 prison chief Kaing Guek Eav, was convicted of grave breaches of the Geneva Conventions, and the defence claim appeared unlikely to find favour.
As they did during the first day of the trial, victims and other interested members of the public filled the courtroom gallery to catch a glimpse of the Case 002 defendants.
Sar Saroeun, 55, of Kampong Cham province, said outside the court that he had served as a driver in the Khmer Rouge until his 1978 arrest and transfer to a road construction site in Kampong Speu province.
He claimed to have attended lectures by KR leaders including Nuon Chea and Khieu Samphan after the regime took power in 1975 in which audience members were exhorted to seek out enemies within their ranks.
“During the Khmer Rouge regime, they taught me how to kill and how to find enemies,” Sar Saroeun said.
“I would like the tribunal to find the real face of these people and show that they committed these crimes.”
Other former members of the movement, however, are less enthusiastic about the case.
Svay Bo, 57, said at the court yesterday she had followed the ousted regime leaders to northwestern Cambodia in 1981, settling in the KR stronghold of Malai district, in Banteay Meanchey province.
Fighting back tears, she said she pitied the defendants and “never saw them killing anyone”.
“For me personally, they only did good things,” she said.