POLITICS-CAMBODIA: Planned Tribunal Faces Credibility Test

By Marwaan Macan-Markar Reprint | | Print |

Marwaan Macan-Markar

BANGKOK, Sep 5 2001 (IPS) - While the Cambodian government goes ahead with plans to set up a special tribunal to prosecute surviving members of the brutal Khmer Rouge, it has been buffeted by concerns about the credibility of the legal body.

“There are real concerns that the Cambodian government will try to manipulate the court, instead of permitting it to function as an independent body,” says James Ross, senior legal advisor for Human Rights Watch (HRW), a prominent New York-based rights lobby.

“Most Cambodians have little regards for the existing courts: the courts in Cambodia are much too corrupt,” he adds.

Others in Cambodia, ranging from officials in the United Nations to independent analysts, point to the judiciary’s political links and the lack of training of Cambodian judges as equally worrying elements.

What has given rise to such worries — including a fear that politics not justice will triumph in the end — is a dominant feature about this special tribunal. According to a Cambodian law enacted last month, the tribunal will have a majority of judges from Cambodia.

The “First Instance Court” of the tribunal, for example, will have a bench composed of five judges, of whom three will be Cambodian, including the president of the chamber. The Appeals Court, according to the law, will have a seven-judge bench, of whom four will be Cambodian, including the one presiding.

And this week, Prime Minister Hun Sen’s government stuck to such a composition of the tribunal. Officials in Phnom Penh faxed on Monday the translations of that law in English and French to U.N. officials in New York, including the provision for a minority of U.N.-appointed judges.

According to human rights advocates, the Hun Sen government cannot ignore the need for credibility during this trial to prosecute the surviving leaders of the Khmer Rouge for crimes against humanity, including genocide, committed between 1975 and 1979. Nearly 1.7 million people died as a result of the ruthless policies pursued by the Maoist group.

And the recent bravado displayed by the prime minister — with statements that Cambodia would conduct a trial with or without U.N. involvement — would prove counter productive, they add.

However, the license for Cambodia to go ahead with its own tribunal is enshrined in the new law, which spells out one of three types of trials for consideration. While the first option is a trial with U.N. participation, the second option specifies limited foreign participation and the third provides for a trial to be conducted only by Cambodians.

“The goal (of the tribunal) is and should be to serve justice,” says Surya Dhungel, a ranking member of the U.N.’s Cambodian High Commission for Human Rights.

And in that regard, human rights advocates point to the importance of two other on-going tribunals that the Cambodian trial can learn and gain from as it prepares for its moment of truth.

These are the international tribunals that are separately looking into charges of crimes against humanity committed in the former Yugoslavia and similar atrocities in Rwanda. In both tribunals, the U.N. and the international community have a major role in ensuring that international legal standards are maintained.

The planned tribunal in Cambodia, on the other hand, is a mixed tribunal, a recent feature in international legal culture, which is a fusion of an international and local judicial presence, but one guided by international law. Under it, the host country enjoys more leeway in the conduct of the tribunal.

For rights advocates, the two U.N. war crimes tribunals for former Yugoslavia and Rwanda have illustrated why sufficient resources matter to cover the special court’s work, including witness protection facilities.

Currently, Japan has pledged the highest amount to cover the cost of the Cambodian trials – about 60 million dollars.

“Collecting evidence and facts in such kind of cases is certainly a challenging task,” says Dhungel. “Strengthening the capacity of the proposed tribunal in all sense, including the commitments and continuous support of the government, international community and civil society to facilitate the process, is paramount in gathering relevant facts and evidence.”

The two international tribunals have also given strength to the argument that what is at stake is not “abstract issues of justice,” but “real concerns of ordinary persons,” explained Ross, HRW’s legal expert. “The prosecution of persons most responsible for serious violations of human rights, even if long ago, is very important to the public at large.”

“Virtually all Cambodian families suffered losses during the Khmer Rouge period – and when asked they will tell you that they would like justice to be done,” he added.

As Youk Channg, director of the Documentation Centre of Cambodia, says: “I would like to get answers to many questions. I would like to know why they killed my sisters.”

“We have been numbed. For us, this will be a healing process,” said the head of the centre that is gathering information that will be used as evidence during the trial.

A recent study by an American university will help prosecutors with concrete evidence to build a strong case against a number of former Khmer Rouge leaders, Ross revealed. “The Khmer Rouge fortunately left a long paper trail.”

Among those named in this study are Ieng Sary, the foreign minister during Khmer Rouge rule, and Khieu Samphan, its prime minister. However, questions have been raised if they would go before the tribunal, particularly Ieng Sary, since he was offered an amnesty by the Hun Sen government.

For Dhungel, the U.N.’s human rights expert, Cambodia stands to benefit only if “the results can show achievement.” And that, to him, means all perpetrators of the gross human rights abuses made to face an “independent and fair” judicial process.

It would “set examples that no one, even the most powerful can escape justice,” he added.

Equally significant for Cambodia, he revealed, is the process unfolding to achieve the triumph of law through the tribunal, for it exposes the country to the need for high legal standards.

Ross agreed. “One benefit of a court that meets international fair trial standards is that it will be a model for a future Cambodian justice system.”