On the 30th anniversary of the Khmer Rouge entry into Phnom Penh, the possibility
of a Tribunal to render Khmer Rouge leaders accountable for their crimes seems very
close. Most of us want to see justice done. I feel it is necessary, however, to raise
some questions about the nature of that proposed tribunal and the possibility of
redress it presents. For the Khmer Rouge Tribunal (KRT) to be effective it must be
credible, impartial and transparent. How is this possible under current Cambodian
legal and judicial conditions?
First, under what laws will people be tried? Although there is a special law on the
organisation of the Khmer Rouge Tribunal, the tribunal has to use existing Cambodian
law for the trial procedure. While UNTAC laws remain in use, there is still no Cambodian
Penal Code, Civil Code or Code of Criminal Procedure. There are no statutes for judges
or prosecutors to deal with any problems related to ethics or conflicts of interest
that might arise during the trials. There are no laws to protect Cambodians against
corruption, environmental destruction, internal displacement, domestic violence and
many other conditions.
The law on the KRT provides for international law to be used where Cambodian law
is unavailable or inadequate. But questions arise as to how effectively this can
be done when existing laws often remain unenforced and unenforceable. Corruption
and impunity pervade the legal and judicial systems. Private restitution and mob
violence replace legal and judicial action as the primary means of social redress.
Who is going to be tried? The KRT will decide who among the Khmer Rouge will be called
to account. But how will it be possible for the Tribunal to override existing political
decisions favoring immunity for some Khmer Rouge leaders? Will it be possible to
prevent people from being prosecuted for political reasons? And will the KRT be more
effective in finding people for trial than the government has been in capturing Chhouk
Because disparities in power play a major role in Cambodian judicial processes the
question of protection for those wishing to testify is urgent. How can the poor testify
against people whose power stretches far beyond themselves into the community? How
can their safety and the safety of their families be even minimally guaranteed? Will
it be only expatriate Cambodians who are willing to testify and what does that mean
for the Cambodian public if it is the case?
In 1999 some 84,195 Cambodians signed the Human Rights Action Committee petition
to the UN for an internationally led KRT. By doing so, they expressed their hopes
that an international tribunal would help find genuine redress for the atrocities
that took place here from 1975-79. Although the proposed KRT is a mixed court rather
than a purely international one, I hope that it will find a way, despite all the
difficulties it is bound to encounter, to answer their hopes and trust.