Logo of Phnom Penh Post newspaper Phnom Penh Post - Moves to get Pol Pot in the dock

Moves to get Pol Pot in the dock

Moves to get Pol Pot in the dock

W ITH the possibility that Pol Pot is alive and under house arrest in Anlong Veng,

the Cambodian government and the international community are pressing hard to bring

leaders of Democratic Kampuchea before an international tribunal on genocide.

The nation's co-premiers, Prince Norodom Ranariddh and Hun Sen, June 21 wrote to

UN Secretary General, Kofi Annan, asking for help "in bringing to justice those

persons responsible for the genocide and crimes against humanity during the rule

of the Khmer Rouge from 1975 to 1979".

The same day US Secretary of State Madeleine Albright asked her Canadian counterpart,

Lloyd Axworthy, to seek the extradition of Pol Pot under his country's law against

genocide. Canada is one of two countries with laws allowing prosecution for crimes

against humanity, not necessarily committed on their soil.

Canada's ambassador to Cambodia, Gordon Longmuir, confirmed the request had been

made but said that there "several major legal hurdles involved".

Asked whether any extradition would involve only Pol Pot or other senior Khmer Rouge

figures, Longmuir said "If you are to try one, most Canadians' view is to try

them all". However the Canadian ambassador pointed out that any extradition

remained "hypothetical".

It remained unclear whether the Albright proposal had previously been discussed with

the Cambodian government. Ambassador Longmuir said that no discussions had been held

between Cambodia over the move.

Albright's request followed hard on the heels of an announcement from the US State

department that it had approved a five-year $1 million grant to finance the continued

work of the Cambodian Genocide Program (CGP) at Yale University and in Cambodia.

"This new grant will allow us to greatly expand the amount of information available

to governments who may wish to pursue legal sanctions for the Khmer Rouge crimes

against humanity," said Craig Etcheson, CGP acting director.

Despite the gathering international support for the Cambodian government's stated

desire to bring those responsible for the atrocities of the Democratic Kampuchea

regime to justice, several key questions remain to be answered before Pol Pot and

his comrades get their day in court.

What form would an international tribunal take and what would be its mandate? Who,

among the surviving Khmer Rouge cadre, would be made to answer for their crimes?

And most important, what evidence would be needed to secure convictions?

An international tribunal, held under UN auspices, could be established through a

UN Security Council resolution, in the same way as tribunals were set up to judge

crimes against humanity committed in Rwanda and the former Yugoslavia.

Alternatively, the 1948 Genocide Convention, which Cambodia is a party to, provides

for an International Penal Tribunal, which has never been convened.

But attempts to set up a tribunal following either of these routes could be stymied

by the political interests of several UN member nations, warned one Phnom Penh-based

legal observer.

China, a permanent member of the Security Council, has already expressed its opposition

to the establishment of an international tribunal on the Khmer Rouge, saying that

issue is an internal Cambodian affair.

The legal observer said China would probably veto a resolution setting up an international

tribunal for fear of having its own murky links with the Khmer Rouge exposed. China

supported the KR until the 1991 Paris Peace Accords.

"The historical links might make China feel a little uncomfortable about what

might come out of the pot if you keep stirring it, especially at an international

tribunal where anything might happen," the legal observer said.

He also questioned US support for a tribunal, speculating that the US might worry

that a tribunal might someday turn its attention to "what the white Americans

did to the native Indians".

The most workable solution would be for the UN Secretary General to "directly

act" on the co-premiers' request, treating it as a "technical assistance

request".

The legal basis for Annan to do so was established in April this year when the UN

Commission on Human Rights formally called on the UN head "to examine any request

by Cambodia for assistance in responding to past serious violations of Cambodian

and international law," the legal observer explained.

However an international tribunal is set up, exactly who gets sent before it remains

a thorny question, as Cambodia's two major parties each seek to gain political mileage

out of the disintegration of the last of the hard-line Khmer Rouge in Anlong Veng.

While Funcinpec has pushed for the rehabilitation of at least some senior guerilla

leaders including Khieu Samphan, through an amnesty, Hun Sen has stood firm on his

refusal to accept the return to the mainstream of any of the surviving top Khmer

Rouge.

Even so, a royal amnesty would not guarantee immunity for Khmer Rouge leaders from

prosecution at an international tribunal.

With political tensions fueling debate over which guerrilla leaders should be slated

for judgment, some government officials maintain the question would be best left

in the hands of an international tribunal.

"Many people think its dangerous for political reasons to set up a trial here.

Some will say its fair, some will say its not fair. There's a lot of passion here,"

said Secretary of State for Information, Khieu Kanharith (CPP).

"It's better to establish an international tribunal which has to decide who

is to be brought before justice," he added.

According to historians and legal observers, the responsibility for any crimes against

humanity committed during the "killing fields" lies with the entire membership

of the Democratic Kampuchea central committee, which included, under alias, Pol Pot,

Son Sen, Nuon Chea, and Ieng Sary among others.

Also responsible are other senior Khmer Rouge political figures outside the committee,

as well as military and security leaders, including the security chief at the S-21

interrogation center, Kang Khek Iev, who was known as Deuch and is reported to be

still alive.

"The minutes of the DK central committee, which was presided over by Pol Pot,

proved that the "Maoist group", including Ieng Sary, believed in collective

decision making," said Youk Chhang, director of the Documentation Center of

Cambodia.

"Collective decision making means they discussed all matters of their revolution

at the meetings. They always agreed. And they implemented their agreements accordingly

after the meetings," he added.

An international tribunal would never accept being drawn into domestic political

disputes which resulted in only a few of the most reviled guerrilla leaders, such

as Pol Pot and Ta Mok, being presented for prosecution, said one legal observer.

"If only some are arrested and handed over the tribunal would begin to operate

under political constraints.

" It would be a tribunal created not to indict people for crimes but [to indict]

people for who they are," he said.

The bottom line in securing convictions against those accused of responsibility for

the genocide will rest on the quality of the evidence collected by the prosecution.

Much of this has already been gathered by the Cambodian Genocide Program and the

Documentation Center of Cambodia, which has begun mapping the sites of "killing

fields". The Center has also stockpiled a vast number of the regime's records,

including minutes from the central committee and the 'Santebal', a 500,000 page document

detailing confessions extracted by the Khmer Rouge security police.

According to legal opinions the archival evidence in itself may not be enough to

meet international standards of proof.

"The principle evidence in criminal trials is first physical evidence. You need

physical evidence to convict. Physical evidence means the bodies, the weapons, fingerprints.

The bones could be used," said one legal observer.

"The kind of evidence provided by documents that show the complicity of the

KR leadership in the crimes committed would be good corroborating evidence, but they

are not the principle evidence," he said.

Officials from the Genocide Program and the Documentation Center say that their records

contain plenty of 'smoking guns', evidence which directly implicates a person in

the ordering of heinous crimes.

"We have specific evidence of an extraordinarily high number of incidents during

the Khmer Rouge regime which appear to violate international laws on war crimes,

genocide and crimes against humanity," said CGP acting director, Craig Etcheson.

But even in the absence of documents which incriminate individual leaders for specific

crimes, the records collected so far can be used to prove "systematic and widespread"

genocidal policies, collectively agreed to by the leaders of the Democratic Kampuchea

regime.

"They don't need to have a document stamped with the signature of Pol Pot, saying

'transfer all the population'", said a legal analyst, referring to the Khmer

Rouge policy of evacuating the cities, which could be included as a crime against

humanity.

"What needs to be proved is that people who were responsible for the regime

did in fact transfer the population firstly and if it can be proved, then the responsibility

can be placed at the feet of people like Pol Pot," said the analyst.

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