The last thing Cambodians need is the divisiveness and interference of an 'International
Tribunal' in the name of 'justice'. Give peace a chance.
The Prime Minister remains adamant in arguing against an international trial.
Prime Minister Hun Sen achieved what the UN peacekeeping plan and the Paris Peace
Accords failed to achieve - he has de-commissioned the KR and has absorbed them into
Cambodian Society.
Thankfully, though, not as an equal partner in the government, as the international
community was insisting during the peace negotiations (when genocide trials were
not in vogue) which led to the 1991 Paris Peace Accords.
This is a major accomplishment. Hun Sen has every reason to be cautious and skeptical
of an International Tribunal that could and perhaps would unravel the ongoing reconciliation
process.
The weight of historical evidence proves Hun Sen's detractors to be wrong when they
assert that he is against the truth being revealed about the KR.
Long before it became politically fashionable to call for accountability for the
atrocities of the KR regime, Hun Sen stood in the forefront, fighting the KR and
urging the international community to act responsibly - as required by them - as
signatories of the Convention on Genocide.
When the evidence was fresh, witnesses and victims plentiful, and the time was ripe
for investigations and prosecutions of the KR, the international community and the
UN embraced the KR by anointing them as the legitimate representative of Cambodia.
Back then, it was taboo to even acknowledge that acts of genocide or crimes against
humanity may have occurred during the KR reign of terror.
All responsible individuals, parties, governments and international organizations
should be held accountable.
But numerous elements indicate that an international tribunal is counterproductive
and divisive, if not outright destabilizing for the current government.
The current situation in Cambodia, the passage of time, the difficulty in locating
credible witnesses that may shed light on the top decision-makers of the KR regime,
the thousands of documents that have yet to be translated, are concrete conditions
that establish a case for NOT creating an international tribunal.
The KR was not defeated militarily. Through painful negotiations, coupled with necessary,
if distasteful concessions, Hun Sen achieved what he could not do militarily during
the several dry season offensives.
Had the international community been more responsive in the 80s and early 90s, these
concessions would have been unnecessary in order to bring peace, stability and reconciliation.
Nonetheless, these are the same sort of concessions that were granted to the murderous
South African apartheid regime, i.e., amnesty, as a condition of giving up power.
What followed was a "truth commission" that exposed all those responsible,
including government agencies, that had either committed gross human rights violations
or participated in promoting a culture of impunity. Cambodia should follow this lead.
A truth commission could accomplish all the necessary goals,with greater success
than a tribunal. It would also lessen the risks of fresh civil strife and the return
of jungle warfare and acts of terrorism by the KR.
Some NGO types (with little or no actual trial experience) are keen to have an international
tribunal though they do not fully appreciate the precipitous effects it would have
on the Cambodian Government and the Cambodian people.
Easy for some of these pundits to dismiss the KR as a "spent force capable of
only small-scale violence".
Of course, when the fighting breaks out and the killings resume, they are either
safe wrapping themselves around their NGO flags and heading off to a 5 star hotel
with the help of an embassy escort or they elbow their way onto the first flight
out of Phnom Penh.
But what of the poor Cambodians? Who will offer them sanctuary? Who will compensate
the victims and their families from the "small-scale violence"?
It is much too simplistic to assume that the KR are "spent", unable or
unwilling to regroup and rearm themselves, or worst, ready to abandon the same leaders
they blindly followed, for more than thirty years in the malaria infested jungles
of Cambodia.
Though no one rushed to Ta Mok's rescue, it is foolhardy, indeed reckless, to assert
as some have, that the KR will not react to other arrests.
Hun Sen, a heavyweight when it comes to tactical out-maneuvering his opponents and
the KR, is fully cognizant of what the KR is capable of doing.
He knows that if he goes back on his word of honor in granting the KR de facto immunity
(a precondition extracted by the KR for joining civil society), the KR - scarcely
known for their appreciation of the finer points of international legal jurisprudence
- will respond violently.
The UN Group of Experts, recommends that the tribunal "focus upon persons most
responsible for the most serious violations of human rights during the reign of the
Democratic Kampuchea".
The Group goes on to state "We do not wish to offer a numerical limit on the
numbers of such persons who could be targets of investigation.
"It is nonetheless, the sense of the group from its calculations and research
that the number persons to be tried might be well in the range of some twenty or
thirty".
And of course, this number would grow, given that the Group recommends that "the
structure of the tribunal should use unconditional language along the lines of the
Yugoslavian and Rwanda Tribunals, e.g 'persons responsible for serious violations
of human rights committed in Cambodia'."
Who will appear on this list? What does "persons most responsible for the most
serious violations" mean? What specific criteria will be used in making the
decision about whom to prosecute - or better yet - whom not to prosecute, when there
is prima facie evidence of guilt?
What will happen when evidence is gathered and revealed during the trial of killings
and serious human rights violations by persons not in the top leadership or even
in positions of authority? What if witnesses and victims insist on prosecutions (now
that the scab of the wounds have been ripped off) of low-level KR cadres who killed,
raped, tortured, etc.
If the Group feels that "trials also serve to establish for the Cambodian Community
what is unacceptable conduct and what should be its inevitable consequences",
then how could it then recommend: "We [the Group] do not believe that prosecution
should attempt to bring to justice all or even most people who committed violations
of international or Cambodian law".
"Truth is not a substitute for the healing of the wounds that can only come
when justice is done", according to one human rights expert (though the weight
of the evidence of the South African Truth Commission proves otherwise).
How is justice accomplished if an international tribunal or the Cambodian Government
ignore and refuse to prosecute each and every individual, irrespective of rank, when
credible evidence establishing probable cause is brought forward? The perception,
rightly or wrongly, will be that some killings are acceptable. If you do not fit
into the category of "most serious/most responsible", you could and would,
get away with murder.
Herein lies the problem. "Justice" for some, but not all - sanctioned no
less by the UN.
Logistically, an international tribunal could not prosecute everyone.
It is simply too expensive, time consuming and cumbersome.
Given the fact that thousands of documents have yet to be translated and analyzed,
and that credible investigations have yet to begin, it is impossible to predict who
will make the who's who list for prosecution. With the exception of the handful of
KR Standing Committee members, many of the 2nd and 3rd tier level KR leaders, who
still command respect and loyalty from their cadres, have something to worry about.
As the investigations begin and names exposed, this group of KR commanders will axiomatically
be targeted for investigation and prosecution.
Ieng Sary, Nuon Chea and Ta Mok, all candidates for an international tribunal.
Consequently, it follows that they will indeed retreat and revert to their acts of
impunity.
Let's be realistic.
Equally unpredictable is what these investigations will turn up with respect to low-level
killings and other human rights violations.
My 17 years as practicing criminal defense lawyer have taught me that in trying to
make a case against someone in a leadership position, it is necessary to start at
the bottom and work your way to the top in a pyramid fashion.
This is necessary because far too often the paper trail and evidence is absent for
those who are most responsible.
The Group "believes that witnesses who can testify to the occurrence of atrocities
and the conduct of individuals and the identity of individuals who carried them out
can be located with relative ease" but then they go on to conclude that locating
witnesses "who can testify to the role of the KR leaders in procuring the occurrence
of atrocities, as such leaders are likely to be the targets of investigations and
trial" will be more problematic. This proves the point.
Given the command structure of the KR and their penchant for secrecy, the only way
to work up the chain of command is to investigate from the bottom up, obtain convictions
or grant immunity from prosecution. This is the universal method of convincing unwilling
witnesses to testify.
To think that someone, after nearly 30 years, is going to implicate him or herself
at the risk of prosecution, and provide evidence against others in higher positions
at the risk of being killed, is naive.
Moreover, the prosecution under the current rules of procedure for the two existing
ad hoc international tribunals has no discretion to either plea bargain for a lighter
sentence or grant immunity in exchange for cooperation.
Hence, the likelihood of "flipping" witnesses (turning an accessed or target
to an investigation into a snitch) is highly unlikely.
If the international tribunal were to start the prosecutions by first trying the
top KR leaders, the chances of obtaining legitimate convictions are remote - particularly
given the nature of the available evidence and the technical aspects of establishing
beyond a reasonable doubt each and every element that a genocide was committed.
Proving that an accused is in fact guilty of genocide - assuming, of course, the
accused are truly afforded the resources, time and opportunity to mount a vigorous
defense - as they are entitled under the International Bill of Human Rights and the
International Covenant on Civil and Political Rights - is not an automatic conclusion.
More problematic perhaps is what will happen when witnesses and victims in the provinces
begin to implicate their neighbors.
Old scores, long forgotten or forgiven, may be reopened. Victims and witnesses may
be targeted by either the accused or their family and friends.
And there is the question of how does the Cambodian Judicial system deal with this
sort of prima facie evidence of serious human rights violations.
For the sake of consistency, reaffirmation of societal norms and the principles of
the Rule of Law, the Cambodian Government will be compelled to prosecute - lest the
indelible impression is left that some killings are less serious and undeserving
of prosecution, than others are.
Where will the sense of "justice" be if the majority of those who committed
the atrocities go unpunished?
And does this not feed into the existing culture of impunity and the taking of justice
into one's hand out of frustration and revenge? Intellectually we may all understand
that "pure" justice is simply impossible in the Cambodian context.
However, try to explain that to the victims, who unsophisticated as they may appear,
are still capable of recognizing a double standard of justice - particularly when
perpetrated by the UN.
Lastly, it should be noted that even if an ad hoc international tribunal for Cambodia
was agreed by all parties concerned (including China, which is likely to block the
creation of a tribunal by exercising its veto power in the UN Security Council),
it would take a minimum of two years before the tribunal is established.
By the time the investigators and prosecutors assemble the evidence and seek an indictment,
by the time the defense, if permitted, prepares a vigorous defense (not the case
for the accused before the International Tribunal for Rwanda), and by the time the
first trial is completed (predictably it would last anywhere from 12-18 months),
we are looking at approximately three to four years before any results are achieved
- which may or may not be a conviction - particularly with respect to the charge
of Genocide.
Considering the circus atmosphere that will follow with the onslaught of UN personnel
and their armada of Toyota jeeps (think back on UNTAC), the business of the Cambodian
Government will be sidetracked.
The Cambodian Government has real and immediate problems that need attenton and solving,
such as: the economy, environment, illegal logging, drug trafficking, rampant crime,
downsizing the military, reversing the endemic warlord mentality that exists in some
of the provincial administrations, and so on.
An international tribunal will end up being a significant distraction that will require
an enormous amount of the Prime Minister's time and energy. Cambodia needs to move
on.
Hun Sen is correct in insisting that the whole truth be brought out.
Full, not partial, accountability is the mandate. The scope of any inquiry must be
broadened to include everyone who supported the KR, the US policy of carpet bombing
- which drove many to join the KR, the UN's stance in supporting and recognizing
the KR - even after learning of the atrocities, and so on.
Trials are unlikely to permit this sort of comprehensive inquiry, by dismissing this
sort of evidence (which no doubt will be used by the defense to the consternation
of the "human rights" advocates), as being "beyond the scope",
"irrelevant", "more prejudicial than probative", etc.
A truth commission is more equipped to deal with the attendant problems that will
arise with any inquiry into the past.
The National Assembly could adopt a modified version of the South African model.
The "Cambodian Truth Commission" should include the input, support and
assistance of the international community in order to ensure not only funding, but
also credible and identifiable standards.
President Mandela and Archbishop Tutu no doubt would offer their assistance in the
creation of a commission.
The inquiry should be unqualified and the scope all-inclusive. Legislation could
be passed mandating anyone subpoenaed be granted immunity in order to appear before
the commission and offer truthful testimony.
Failure to appear or testify truthfully would be a crime punishable by imprisonment
and perhaps criminal prosecution for any alleged crimes having been committed during
the period in question - if the evidence warrants such action.
A panel of experts, historians, academicians, from many disciplines, would be invited
to add to the debate.
International funding would be sought to expedite the tedious process of interpreting
and analyzing all available documents. The UN and the various countries responsible
for supporting the KR would be asked to participate - though queried to what extent
they would cooperate in exposing their past sins. The stated objective of the Truth
Commission would be to get to the truth - finally.
In addition to the Truth Commission, Cambodia must: continue the long process of
instituting structural reforms; erect monuments and museums memorializing the inhumanities
of the KR regime; and institute a legal awareness educational program at the grass
roots level that would focus on changing behavior through empowerment with knowledge
of the civil, political and legal rights that all Cambodians enjoy, including the
ethnic minorities.
This multifaceted approach to justice would allow for accountability without retribution
and rehabilitation/reconciliation through awareness.
Bringing human rights violators to justice is the quintessential form of ending the
culture of impunity that has existed for so long in Cambodia.
Unfortunately, to pursue "justice" through an international tribunal is
more likely to polarize than heal the Cambodian society.
Pursuing the "truth" can, however, be done in a manner that does not jeopardize
national reconciliation and peace.
This quest is possible through a truth commission that will, hopefully, with precise
identification of individual guilt based on documented evidence and fair hearings,
replace collective responsibility and expose all the responsible parties, governments
and institutions that have thus far escaped accountability.
- - - - - - - - - - - -
Michael G. Karnavas has been a practicing criminal defense lawyer
for 17 years. In 1994 he helped train the Cambodian Defenders in trial advocacy skills
and from 1995-1996 he worked for the Cambodian Court Training Project of the International
Human Rights Group where he traveled throughout Cambodia training judges and prosecutors.
He spent several months at The Hague, Arusha, Tanzania and Kigali, Rwanda observing
and researching the International Criminal tribunals for the former Yugoslavia and
Rwanda. He was briefly involved in representing Jean Paul Akayesu and appeared on
his behalf before the International Criminal Tribunal for Rwanda.
