WHILE many of the Khmer Rouge leaders, including Pol Pot, managed to keep their names
clear of documents that would have implicated them in crimes such as genocide, Ta
Mok has not been so careful.
If and when Ta Mok is brought up on charges relating to the KR crimes under the DK
regime of the 1970s, researchers say they have documentary evidence which implicates
him in the torture and purges.
The top KR leadership were very effective at leaving little trace of their involvment
or knowledge of the crimes of the regime.
The only documentary evidence so far found that possibly implicates Pol Pot is a
brief unsigned note that was linked to him via the handwriting.
And it is only recently that documents relating to culpability fo Pol Pot's number
two - Nuon Chea - have been found.
But for Ta Mok the evidence is already accumulating.
Youk Chhang, director of the Documentation Center of Cambodia, said he has 53 pages
of files directly relating to Mok ready to hand over to a prosecutor.
Many of the files are "confessions" from the Tuol Sleng detention/torture
center which were copied to Mok - a Standing Committee member since 1971 and Secretary
of the Southwest Zone.
Chhang said he was "shocked" at what KR experts David Chandler and Steve
Heder found when they looked through his files.
Heder said that Mok's reciept of copies of the confessions alone did not necessarily
mean he knew people were tortured as well as detained. But he said four of the confessions
"can be read as implicating Mok in the purge process".
That of Kung Kien, dated 1977, includes handwritten margin notes from Tuol Sleng
chief Deuch; one reads: "According to my information, this contemptible Tan
Meng was also already smashed by Brother 15 [Mok's alias] in 1974."
Another, marked "Comrade Mok has read already" on the cover, refers repeatedly
to the fact that dissidents were "swept cleanly away".
(GUILTY: From page 1)
Heder noted: "In combination with other documents, testimony and physical evidence,
the confessions. . . may of course be more incriminating than they are on their own."
And Chhang said he has an additional 581 pages of security files from Krang Ta Chan
Prison, in Takeo (in the Southwest Zone).
In addition, he has recently returned from a research trip to Vietnam, where many
additional KR documents are believed to be held.
While calling the trip "very useful, very productive, and very promising",
Chhang was tight-lipped about what he discovered there, saying only, "the research
is not complete".
He added that he would give his documentation to Ta Mok's defense lawyer as well
as the prosecution: "They can come any time, the information is available to
them."
Mok's defender has not yet been named.
Three legal-aid organizations provide most of the lawyers for trial in Cambodia but
none of them want to become involved in the case.
Legal Aid of Cambodia (LAC) and the Cambodia Defenders Project (CDP) have said they
would not act for Ta Mok while the Cambodian Bar Association representative did not
rule it out but said none of their members was engaged on the case.
LAC and CDP representatives said they only defend poor arrestees, and that Mok -
who reportedly has had lucrative business interests in Thailand - would not qualify.
Mok has reportedly asked for a man named "Am Samtieng" as his lawyer.
If Mok is charged with crimes from the 1970's, the strictures of nullum crimen sine
lege (no crime without law) dictate that only the law in force at the time can be
applied.
Military court officials say Mok may be charged with genocide and crimes against
humanity, but it is unclear whether this is technically possible under Cambodian
law.
Cambodia has been a party to the international Genocide Convention since it came
into force in 1951 - and is thus obligated to punish those guilty of genocide found
on its territory. Under the convention, genocide consists of destructive acts (including
not only direct killing or subjecting persons to conditions calculated to bring about
slow death) against a "national, ethnical, religious or racial group" with
intent to destroy, in whole or in part" the group "as such".
Historians and legal experts believe there is a prima facie case against KR leaders
for genocide against certain groups, such as the Vietnamese and Cham peoples, during
their regime.
However, Cambodia has never passed a domestic law implementing the Convention - that
is, defining genocide and making it a crime in Cambodia.
The 1994 statute on outlawing the group of Democratic Kam-puchea refers to genocide
in its introduction: ". . . the leaders of the group of 'Democratic Kampu-chea'
cannot use the Paris Agreements as their legimitate shield to conceal their reponsibility
for. . . genocide during the Pol Pot regime. . . there is no statute of limitations
for genocidal crimes", but the legal provisions only concern making membership
in the Khmer Rouge a crime.
The UN Group of Experts who wrote a Feb 18 report analyzing relevant Cambodian law
concluded that the 1956 Code Penal et Lois Penales "would remain the primary
source of law for domestic prosecutions".
The 1956 law does not mention genocide or crimes against humanity, and the experts
note: "Whether Cambodian law permits direct prosecution of individuals for international
crimes absent codifications of those crimes in the Penal Code remains unresolved."
If the prosecutor calls for the death penalty for Mok based on the 1956 code, however,
the experts conclude that the Constitution, although written in 1993, would foreclose
the possibility of a death sentence (art 32).
The experts conducted their analysis, written before Mok was arrested, on the assumption
a domestic trial would be in a criminal court. Mok will be tried in a military court,
despite the fact that the UN rights office here believes he should be tried in a
criminal court. However, Cambodian lawyers say the legal code used in the two is
the same.
Heder concludes: "The key is to demonstrate beyond a reasonable doubt that these
specific individuals knew that persons. . . being 'arrested' and as being 'traitors'
were being (secretly) killed. In the case of Ta Mok, this should be a relatively
simple matter."
