IN the last mandate, both Co-Prime Ministers sent a letter to request the UN to assist
the Royal Government of Cambodia (RGC) to form an International Tribunal to try the
senior Khmer Rouge leaders responsible for so many deaths. However, the situation
has since changed and both the RGC and the UN have instead agreed to form a mixed
tribunal to try former KR leaders.
On July 7, 2000, the Minister of the Council of Ministers, Sok An, and Hans Corell,
chief legal counsel for the UN, agreed on a Memorandum of Understanding on legal
principles relating to the Establishment of Extraordinary Chambers in the Courts
of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic
Kampuchea.
As an Attorney-at-Law in the Cambodian legal system for the past 10 years, I would
like to offer some comments and recommendations to make this tribunal more credible
in the eyes of the Cambodian people who have lost all confidence in the legal system.
We will have no second chance to try the Khmer Rouge leaders for the murder of so
many of our relatives if this tribunal fails.
Decision-making: The Problem of the Supermajority
The composition of mixed judges as agreed between the RGC and the UN is acceptable
because it ensures that the decision making is reasonable and fair.
However, the supermajority decision mechanism decreed in the agreement (four of five
judges in Trial Chamber, five of seven in the Appeal Chamber and six of nine in the
Supreme Court) is extremely problematic in that it will be very hard for supermajority
decisions to be made.
It will be easier and fair if the decision is a simple majority based on a mixed
decision ie a simple majority with at least one Cambodian and at least one International
Judge agreeing.
Neither the MOU nor the Draft Law states clearly what exactly constitutes a decision.
It is not clear whether it is a decision to convict or acquit. It should be clear
that it is the decision to convict that requires the supermajority. If they cannot
get a supermajority to convict the defendant, he or she shall be acquitted.
The post of the investigating judge
There has been much discussion and debate recommending the abolition of the post
of the Investigating Judge because it violates provisions of the Cambodian constitution
specifying that only a prosecutor can file a criminal suit.
The post of Investigating Judge has also been criticized due to a belief that he/she
will have too much power and influence.
In addition, the role of Investigating Judge is inherently problematic because no
human being can successfully juggle two inherently opposing responsibilities - prosecuting
and making judgments of guilt or innocence.
The Investigating Judge also assists only the prosecuting side, effectively sidelining
the prosecutors. The post of investigating judge also obstructs the work of police.
The power of the Investigating Judge to make conclusions about the guilt or innocence
of the accused also violates suspects' presumption of innocence.
I recommend that the post of Investigating Judge be abolished and replace by an independent
unit of investigators under the supervision of the prosecutors. The prosecutors will
then be able to work more closely on each case, improving cooperation and efficiency.
The coprosecutors
The planned co-prosecutor system could create conflicts over which prosecutor will
examine witnesses and how each prosecutor will argue in court. If both have the right
to make closing arguments for the same case, what will happen if their arguments
are inconsistent?
Victim and witness protection
The agreement states that the court shall provide for the protection of victims and
witnesses, but does not state clearly who has the responsibility to protect them.
Because this tribunal is the responsibility of both the UN and the RGC, I recommend
that the protection of the persons involved, such as witnesses, victims, and court
staff, shall be the responsibility of both the UN and the RGC equally.
Right to counsel
Article 11 of the Cambodian Constitution specifies a suspect's right to counsel and
the right to have counsel provided if the defendant does not have sufficient means
to pay for it. But the constitution does not state whether the defendant has a right
to foreign or mixed counsel and does not state clearly who is responsible.
I recommend that the accused should have the right to have foreign, or Cambodian,
or mixed counsel and the UN and the RGC shall be jointly responsible to pay for the
counsel if the defendant does not have sufficient means to do so.
- Sok Sam Oeun is an Attorney at Law, Director of the Cambodian Defenders
Project, Chairman of Legislative Sub-committee of Human Rights Action Committee and
Chairman of Legislative Sub-Committee of Comfrel.
