Since the UN walked away from the proposed Khmer Rouge tribunal, much has been
written about who is to blame, what should have been done, what was agreed (the
now infamous Memorandum of Understanding {the MoU} that was never signed), what
was expected to be in the law, the legality of having an agreement such as the
MoU take precedence over legislation adopted by the democratically elected
National Assembly, etcetera.
Minister of State Sok An, the Cambodian government's lead Khmer Rouge trial negotiator, explains February 12 its stand on the UN decision to pull out of the trial process.
It is time to move ahead. It is solely up to
the Cambodian government to decide IF, and this is a big IF, it wishes to
establish a credible tribunal to investigate, and if necessary, indict and
prosecute the "senior leaders of the Democratic Kampuchea (DK) and those who
were most responsible" for any atrocities committed during that era (1975-79).
It would be imprudent to presuppose what, if any, crimes were in fact
committed, and by whom. All alleged perpetrators and suspects must be presumed
innocent - assuming the so-called "international standards" are afforded to the
presumed suspects.
Holding a trial or two at this juncture will not
achieve actual justice, reaffirm the notion of accountability, break down the
wall of impunity or expose the whole truth - particularly given that only a
handful of individuals will be in the dock to answer for all of the events
during the DK period, while not addressing the pernicious conduct of the US,
China, the UN and others. It may however be the only option available, at least
for now.
A truth and reconciliation commission could compliment the
tribunal, though many are skeptical that such a commission could function
adequately given that old scores are likely to be settled by pointing fingers,
expected political interference will skew the process, and perhaps more
importantly there are no Cambodian Desmond Tutus or Nelson Mandelas. Hopefully,
at some point humanity will deal with the inhumanity of the past; it will take
more than a trial and/or a commission.
Many are quick to blame the
Cambodian government or Prime Minister Hun Sen for delaying or obstructing the
process of establishing a KR tribunal. It bears highlighting that Hun Sen, who
has every reason to distrust or even hold in contempt the UN, not only initiated
this process but has remained engaged in spite of the condescending, patronizing
and neo-colonialist tone taken by the UN's chief negotiator and representative.
Conversely, it appears that Hans Corell let his ego get too close to his
position (having the UN in charge), so that when his position went, so did his
ego ... and the UN followed.
Granted, Hun Sen has been less then
consistent, and is prone to sending mixed messages that often befuddle and
frustrate his counterparts. Hun Sen must share some of the credit for the lack
of progress in establishing a KR tribunal.
However, Hun Sen is above all
else a politician who, as can be expected in Cambodia, is doing a high-wire act
without a safety net. He painstakingly negotiated with the KR to put down their
arms. Cambodia is finally enjoying a semblance of peace.
In an interview
with Helen Jarvis in 1999, Hun Sen indicated his "strategy [was] to put an end
to the political and military organization of the KR. If [he] could not do that,
then [he] could not end the war and bring justice and peace to the Cambodian
people. Without peace, justice cannot be found." (PPP Vol. 8 No. 4). Now that he
has caught the fish, to paraphrase his analogy, Hun Sen needs to figure out how
to cook them before they spoil. Deep-freezing some, as with Ta Mok and Duch,
won't do.
Had the drafting process been handled differently, perhaps it
would not have taken so long to draft the Law on the Establishment of the
Extraordinary Chambers (the Law). More importantly, many of the remaining
nuances could have been resolved. Several lessons can be drawn from the drafting
process which might be useful in identifying how to move ahead in establishing a
tribunal and holding trials - with or without the UN.
The drafting
process was flawed in three major ways: first, the UN did not have a team of
experts in Cambodia working with their Cambodian counterparts; second the
drafting process was not conducted intensively; and third, the law was drafted
in a vacuum with no comprehensive strategy to ensure that all other necessary
changes to related laws, procedures and regulations would be addressed
simultaneously.
Drafting legislation is a time-consuming, labor-intensive
process. Irrespective of the talent involved in drafting, it is inconceivable
that a major piece of legislation such as the establishment of Extraordinary
Chambers for the prosecution of crimes such as genocide and crimes against
humanity, could be drafted overnight or in one or two drafts.
It is
simply preposterous to think that parachuting into Cambodia for a few days or
sending emails and faxes would suffice when dealing with the attendant sensitive
and hyper-technical issues. Obviously, it would be unrealistic to suggest that
Hans Corell should have remained in Cambodia for months at a time. However, he
does not have a monopoly on knowledge; a team of highly qualified experts could
have been in Cambodia doing the heavy lifting, briefing him as needed.
A
working group should have been formed composed of Cambodian and UN
(international) experts. Through a goal-oriented process with rigid self-imposed
deadlines, the working group should have mapped the process and identified which
other laws and regulations needed to be reviewed and amended. By tackling all
issues, laws, procedures, regulations, etc., in tandem, it would have been
possible to identify and solve most of the weaknesses that could
arise.
As it stands, the Law is far from perfect. It is vague and
ambiguous, setting forth an overly convoluted process that is susceptible to
prosecutorial and judicial gridlock.
Nonetheless, the Law is not fatally
flawed as many critics have concluded. It is after all a law designed to be a
framework, upon which implementing by-laws, regulations or rules will need to be
drafted. Perhaps, that is what the MoU was designed to do, and what is referred
to therein as "modalities".
The Law incorporates much of the substantive
law and procedural aspects of existing Cambodian jurisprudence. Here, critics
argue that "international standards" cannot be met given the inherent
shortcomings to existing Cambodian criminal law and procedure. This assumes
"international standards" exist.
As former UN human rights officer in
Cambodia, Balakrishnan Rajagopal, so artfully explained in his March 26, 2002
comment to The Washington Post: "The reality is that the international standards
are themselves malleable, depending upon the caliber of the individual judge,
the evidence that can be marshaled against those charged and the political
context of crimes with which individuals are charged. In effect, different
standards apply in different cases, even before the same court. This was true in
Nuremberg, and it is true in the tribunals for the former Yugoslavia and
Rwanda."
Anyone who has appeared before either one of the ad hoc
international criminal tribunals will echo this.
One must distinguish
between internationally recognized fundamental principles, such as those found
in the International Covenant on Civil and Political Rights which have been
incorporated in Article 35 of the Law, and for lack of a better term,
"acceptable standards", which generally refer to the overall process, such as
procedural fairness, uniformity in the application and interpretation of the
law, availability of resources for the defense, etc. Nothing thus far can be
seen from the Law that supports the conclusion that the Extraordinary Chambers
will not apply "acceptable standards". That remains to be seen.
Much has
been said about the inadequacies of the Cambodian criminal procedure. There
seems to be a fundamental misunderstanding, which perhaps can be attributed to
the lack of knowledge or appreciation of how the Romano-Germanic (French/civil
law) legal tradition functions. Most of the critics, lawyers and non-lawyers,
tend to be from the Anglo-Saxon system. This seems to be the tripwire for the
misperception that somehow the Cambodian criminal procedure is utterly flawed.
For instance, much is made of the fact that an injured party or
complainant cannot go directly to the Investigative Judge to file a complaint.
To understand the reasoning behind this process, one must first understand the
function of the Prosecutor vis-à-vis the Investigative Judge.
The
Prosecutor accepts the complaint, does a preliminary investigation, and upon
identifying a suspect, will draw up the charges and forward them to the
Investigative Judge. The 'investigation' officially commences through the
Investigative Judge who is there to ensure procedural fairness to the injured
party, the accused and witnesses.
The Investigative Judge is expected to
investigate the case for both the prosecution and defense. While the defense is
forbidden to conduct its own investigation, the practice in Cambodia has been
more lax or flexible. Defenders routinely conduct investigations on behalf of
the accused, and at trial a quasi-adversarial system has emerged.
Others
complain that there are no formal rules of evidence in the Cambodian criminal
procedure. That is generally the case in the civil law system. Moreover, it is
worth pointing out that rules dealing with evidence at the currently functioning
ad hoc international tribunals are deliberately brief in order to promote fair
and expeditious trials.
This approach to evidence is flexible and
unencumbered by strict and technical rules found in common law systems. However,
both legal traditions apply certain basic principles in considering the
admissibility and weight of evidence. If Extraordinary Chambers are composed of
judges from different legal traditions, it is to be expected that each will
apply his or her legal reasoning in determining what evidence to accept and how
much weight to give it. So, where is the drama?
Perhaps the most
objectionable aspect of the Cambodian criminal procedure is the role of the
Investigative Judge. Some argue that the time has come to eliminate the function
of the Investigative Judge. Perhaps they are right. After all, Jean-Francois
Burgelin, the Prosecutor General of the French Supreme Court, was quoted in The
Economist (November 24, 2001) as saying: "Rather than having [investigative]
judges who purport to be righters of wrong, let there simply be a unified
prosecution service that investigates, brings charges and prosecutes; let there
be a defense; and let there be a judge acting as a referee."
Sounds
reasonable enough. However, this is a political NOT a legal issue. Cambodia has
opted to base its legal system on the French legal system. Consequently, it
follows that the criminal procedure would be of the same legal tradition.
The problem is not that the existing criminal procedure is inadequate or
flawed, but that it is not uniformly or properly applied throughout the courts
in Cambodia. Indeed, there is plenty of evidence to suggest that the criminal
procedure is routinely violated by certain prosecutors and judges or in certain
types of cases. This can be attributed to the lack of adequate training, outside
influences, corruption, etc. Undoubtedly, corrupt and inept prosecutors and
judges exist in Cambodia - as they do everywhere else.
It is unfounded
however, to assert that no qualified or ethical prosecutors or judges exist in
Cambodia. Under the Law, the Extraordinary Chambers will be sufficiently
transparent for all to see whether the "fix" will be in. But let's not prejudge
how the Cambodian jurists will perform.
So, can the process be salvaged?
Yes. Since there seems to be no appetite to re-visit and amend the Law, the only
available solution is to go over all other relevant laws and procedures to
determine how they fit within the overall context, and to design regulations
that would ensure that most, if not all, shortcomings in implementing the Law
can be resolved. This is an indispensable precondition, if a credible process is
sought.
It would be wise for the Cambodian government to invite, without
delay, a handful of internationally recognized experts (with actual experience,
not just book sense) to assist in this process. They will need to address every
issue relevant to the implementation of the Law.
It will require, for
instance, that they go through the entire criminal procedure article-by-article
to see where, if any, weaknesses exist, and of course propose solutions; they
will need to go through the mechanics of the Law to see where the potential
pitfalls exist that could create unreasonable delays; go over the process on how
the judges, prosecutors and lawyers will be selected and then trained; what
actual resources will be needed; and so on.
Drawing from the experience
in establishing the existing ad hoc tribunals for the former Yugoslavia and
Rwanda, it should take only a few months to iron out all the details.
Assuming a genuine expression of interest was shown by the Cambodian
government to engage international experts and work on an expeditious manner,
the countries that were committed to financing the Extraordinary Chamber should
provide the technical expertise and material resources. The door should be left
open for the UN, though its participation is not required in order to have
credible trials with high standards.
In the end, it all comes down to
whether there is political will on the side of the Cambodian government, and
whether there is the moral will on the part of the international community.
Cambodia should take the first step by engaging recognized international experts
to work in partnership to find acceptable solutions for the remaining unresolved
issues and shortcomings in Cambodia's jurisprudence.
IF Hun Sen is
indeed interested in holding KR trials, then he MUST exercise his influence in
pushing the process forward. IF the international community is truly committed,
it MUST come forward with the requisite assistance. Using the absence of the UN
as an excuse for withholding financial and technical assistance will only serve
to further expose the hypocrisy of the international community and countries who
claim to "support" KR trials.
It's about whether there is a will, not
whether the UN is willing.
