ATROCITIES suffered by Cambodia's Buddhist monks could hold a vital key to
proving that the Khmer Rouge regime committed genocide between 1975 and
1979.
Scott Worden.
A conference on Crimes Against Humanity held in Phnom Penh was told
by an international lawyer that the Buddhist monkhood could be a pivotal group
on which the prosecution bases a genocide case against Khmer Rouge leaders,
assuming a trial is ever held.
Scott Worden, legal advisor to the
Cambodian Defenders' Project and a Luce Scholar from the US, said a conviction
for the crime of genocide hinged on the prosecution proving specific acts were
intended to destroy a national, ethnic, racial or religious specific group of
people, and monks as a protected religious group appeared to meet all the
criteria.
There was also significant evidence of genocide against the
Cham Muslims and Vietnamese as protected groups. All three groups were subjected
to especially harsh treatment. Whether genocide was committed against Khmers as
a national group would depend on how the court interpreted the KR's
intent.
"The crime of genocide is narrowly defined, and specific intent
to destroy a group is the most difficult element to prove, particularly without
a confession," Worden told the conference at Paññasastra University on May 15.
Many of the crimes committed under Democratic Kampuchea were not
genocide, but failure to convict for genocide would not prevent the court
finding that the atrocities constituted punishable crimes against humanity. A
mass killing often termed genocide in the news media might not qualify as
genocide under the law.
A starting date for the trial of an estimated
five to ten defendants cannot be set until Cambodia has a new government and
National Assembly to pass the enabling legislation. It is now 10 months since
the general election and the major political parties are still unable to agree
on power sharing to form a two-thirds-majority coalition government.
Helen Jarvis.
To
convict someone for genocide a court must determine that a criminally
responsible individual committed one of five destructive acts against members of
a protected group with specific intent to destroy the group "as such". These
acts include killing members, causing serious bodily or mental harm (including
torture by inhumane or degrading treatment and persecution), and deliberately
inflicting conditions of life calculated to bring about physical destruction
(including a forced or starvation diet, systematic expulsion from homes,
excessive work, and denial of essential medicine).
Worden cited
historical and witness accounts that monks were executed, suffered serious
physical or mental harm, endured conditions to bring about their destruction,
and were subject to forcible transfer, which indicated evidence of genocidal
acts.
Wats were destroyed and monks unfrocked or killed, in the context
of a political plan of destruction, accompanied by severe derogatory language:
"It is forbidden to give anything to those shaven asses, it would be pure
waste." "The bonzes are bloodsuckers, they oppress the people, they are
imperialists." "You must drive this religion out of you. Otherwise you are
enemies of the Angkar." (Some examples of discriminatory propaganda reported by
French priest Francois Ponchaud in 1975-76, in his 1978 book Cambodia Year
Zero.)
Worden also quoted Heng Samrin, in Ben Kiernan's The Pol Pot
Regime, on statements made at DK meetings held from May 20 to 24, 1975 as
potential evidence of intent to destroy monks as a group: "Monks, they said,
were to be disbanded, put aside as a 'special class' ,the most important to
fight. They had to be wiped out. I heard Pol Pot say this myself. He said no
monks were to be allowed, meaning 'wipe out religion'."
Worden said: "It
is not necessary to kill directly for a person to be guilty of genocide. Those
Khmer Rouge leaders with superior or command responsibility, including members
of the Democratic Kampuchea Central Committee, the DK Standing Committee, and
the Military Committee, could be found responsible for genocide committed by
subordinates."
Therefore, senior leaders at the May 1975 meeting could
potentially be found guilty of planning, instigating, ordering, conspiring or
aiding and abetting genocide. They could be guilty of at least conspiracy or
complicity in genocide, if not genocide itself.
The challenges for a
Cambodia genocide trial would be establishing evidence of specific intent to
destroy a group, defining the protected group, interpreting the genocide
definition in terms of the Extraordinary Chambers law (the court will convene as
an Extraordinary Chambers), and establishing the state of the law in
1975.
A separate issue, panelists said, was the case of Ieng
Sary.
DK leaders Pol Pot and Ieng Sary were convicted in absentia for
genocide and other atrocities by a People's Revolutionary Tribunal in Phnom Penh
on August 15-19, 1979. They were sentenced to death and their property ordered
to be confiscated.
The prosecution was based on the Decree Law No 1 of
July 15, 1979, which defined genocide as: "Planned mass killing of innocent
people, forced evacuation of the population from cities and villages,
concentration of the population and forcing them to work in physically and
morally exhausting conditions, abolition of religion, destruction of economic
and cultural structures and of family and social relations."
This was the
world's first genocide trial. (There were no indictments for "genocide" at the
Nuremberg Military War Crimes Tribunal in 1945; the International Genocide
Convention was not signed until 1948, and came into force in 1951. Cambodia was
a signatory.)
On September 14, 1996, King Norodom Sihanouk signed a
pardon for Ieng Sary (in exchange for his defection from the Khmer Rouge)
requested by the co-Prime Ministers Prince Ranariddh and Hun Sen, which
proclaimed: "A pardon to Mr Ieng Sary ... for the sentence of death and
confiscation of all his property imposed by order of the People's Revolutionary
Tribunal ... dated 19 August 1979."
At the time it was widely reported
that this pardon was only against the 1979 conviction and would not preclude
Ieng Sary being tried by subsequent courts. Ieng Sary, former DK Deputy Prime
Minister and Minister of Foreign Affairs, lives in Phnom Penh.
Dr Helen
Jarvis, a member of the Khmer Rouge Trial Task Force and an advisor to the
chairman, Sok An, said at the Paññasastra conference: "The trial is not well
known; it is often referred to as a 'show trial' .
"Many criticisms have
been raised about this court, particularly about convicting in absentia, the
speed of trial, the procedure that was followed. The defence was very weak,
pathetic, even laughable; some of the testimony seemed to be
scripted.
"But we have to consider the prevailing political situation: at
that time the government of the day, the People's Republic of Kampuchea, was not
recognised and the Khmer Rouge were still holding the official Cambodian seat in
the United Nations. There were no schools, no hospitals, the country was in a
terrible state. But the government had decided in January 1979 that indicting
these people was an important task."
Dr Jarvis said efforts to persuade
the United Nations to convene an international trial "against Cambodia's
genocidists, the same as taken against the Nazis" had been ongoing by the
Government and NGOs since the early 1980s. The appeals went largely unheeded
"and that's why we're still here 25 years later and no KR leader has yet stood
in the dock to answer for their crimes."
For the proposed trial Phnom
Penh's Chaktomuk Theatre and the National Cultural Centre are being considered
as venues. The current budget estimates of $50 million and 300 staff are under
review. Whether or not the United Nations will adequately fund the proposed
tribunal remains to be seen.
