As Rupert Skilbeck pointed out ("The Principal Defender," Post, November
17, 2006), the Khmer Rouge Trial (KRT) should not be a show trial. Of course, in
the pursuit of justice this demand is really important. Unfortunately, it is only
applicable to the internal design of the KRT as the result of a political bargaining
process over more than ten years.
In setting the framework of the trial, many paladins of the former leaders are excluded
from prosecution. Furthermore, the background of some national judges of the ECCC
should raise concerns whether fairness isn't threatened through their appointment.
Altogether, the fairness of the trial in pursuing justice for the Khmer Rouge's crimes
is hampered already by political considerations.
The KRT is very different from its historical model, the Nuremburg trials against
leading Nazis and others after the Second World War. At Nuremburg, even a non-member
of the NSDAP (Nazi Party) like former German Chancellor Franz von Papen or national
banker Hjalmar Schacht had to stand trial. That they were found not guilty was a
good argument for the Allies that the trial was not "victors' justice."
Unfortunately, figures like them are not present for the KRT, especially for the
periods before April 17, 1975 and after January 7, 1979 [excluded from KRT jurisdiction].
And this also avoids examining the involvement of other states in the Khmer Rouge's
In this context it is hard to understand what Skilbeck means when he argues that
if the defendants are not treated fairly "no one can ever be sure what really
happened." The exclusion of many years from the trial will even ensure this
fact, and for 1975-to-1978 the work of famous scholars like Chandler, Kiernan or
Vickery as well as the work of several local NGOs has made it clear already that
the defendants are highly politically responsible. If the initiators of the KRT were
not sure that the condemnation of the former leaders of the Khmer Rouge is the next
logical step it is obvious that there would not be any trial.
The KRT is an indubitable show trial: it should be shown to the Khmer people that
justice is possible, and this motivation should not be questioned. But is it really
the highest value while there is still the possibility of political violence and
instability? It must be remembered that in giving amnesty to the former Khmer Rouge
leaders it was possible to end the civil war in 1998 - after nearly 30 years of war,
civil war and genocide. This peace must be protected - not only in the view of the
directly involved, the Khmers -and even this causes a lack of justice.
Sometimes it seems that issues like this are not present in the perception of the
international lawyers and experts. It is in doubt whether they are really sufficiently
informed about Khmer culture and history.
Or how can it be explained, for example, that Skilbeck claims that the KRT can improve
the legal system of Cambodia? The country's legal system is used as a tool to govern
and not to ensure the rule of law or horizontal accountability. This will change
only over a very long period and therefore the KRT's impact will be minimal.
And if leading members of the Royal Family should give evidence as witnesses at the
trial it could be very difficult in explaining this to the Khmers who still admire
King Father Sihanouk, even for the Principal Defender.
If the KRT were to fail it would be better not to conduct it, for in this case it
would be a show trial, too, but very different from all the positive expectations.
Markus Karbaum - PhD Candidate, Humboldt University, Berlin