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.
