Khmer Rouge trial bogs down in politics
Feb 9, 2007
By Bertil Lintner
Asia Times (Hong Kong)
By Bertil Lintner
Asia Times (Hong Kong)
PHNOM PENH - Everything appears set for Cambodia's trial of the century. A huge building attached to the country's army headquarters on the outskirts of the capital has been turned into a courthouse. Behind it, a temporary detention facility is being built to house the suspects once they have been apprehended and brought to trial.
Cambodian as well as United Nations-appointed international prosecutors, defenders and judges are at the ready to take their positions on the court's benches. The day of reckoning is finally here for the leadership of the Khmer Rouge, which ruled Cambodia from April 1975 to January 1979, during which an estimated 2 million to 3 million people died from government-ordered executions, starvation and disease.
Or is it? Last November, legal experts from the UN submitted an 81-page document titled "Draft Internal Rules" for "the Extraordinary Chambers in the Courts of Cambodia". It has yet to be approved by the Cambodian side and, if an agreement has not been reached by the end of April, the international judges will consider asking the UN to withdraw from the tribunal, the French investigating judge, Marcel Lemonde, told Asia Times Online in an exclusive interview.
While people on the international side are emphasizing "the extraordinary chambers" part of the tribunal's charge and insisting on international standards, their Cambodian counterparts view the trial more through the sovereign lens of the "Courts of Cambodia". "We are not speaking the same language in many different ways," said Lemonde. The result may be that the accused leaders of the Khmer Rouge go unpunished for their crimes against humanity.
That would no doubt please China, the Khmer Rouge's main international supporter during the Indochina war as well as during its four years in power. After the Vietnamese invasion of Cambodia in December 1978 and January 1979, Chinese support helped the Khmer Rouge hold the line against Vietnamese troops from bases along the Thai border.
The latest problems for the trial began last November, when the Cambodian Bar Association (CBA) forbade local lawyers to attend a training program planned by the London-based International Bar Association (IBA), and threatened to cancel the program unless it solely selected the program's participants and speakers. "The prohibition by the Cambodian bar is part of a wider scheme of opposition designed to obstruct the operation of the tribunal," the IBA said in a statement dated November 24. The IBA subsequently canceled the program.
The Cambodian bar, for its part, accused the international group of "encroaching on its sovereignty", arguing that under Cambodian law the local bar is the only body mandated to regulate the country's legal proceedings. The UN-sponsored international contingent argues that the CBA appears to have overlooked Article 2.2 in an agreement that senior minister Sok An and Hans Corell, UN undersecretary general for legal affairs, signed on June 6, 2003, which says: "The Vienna Convention on the Law of Treaties, and in particular its Articles 26 and 27, applies to the agreement."
Article 27 states, "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." And besides, international law would have to apply. According to Robert Petit, the Canadian co-prosecutor, Cambodia's criminal law is "not complete and comprehensive, and sometimes contradictory".
Petit has relevant international experience, having previously served as a legal officer in the Office of the Prosecutor of the International Criminal Tribunal for Rwanda, as regional legal adviser for the UN's mission to Kosovo, and as senior trial lawyer in the Office of the Prosecutor for the Special Court in Sierra Leone. His Cambodian counterpart, Chea Leang, comes from a totally different legal tradition: she and most of the Cambodian judges on the tribunal were educated in the former Eastern Bloc, including in East Germany, the Soviet Union and Vietnam.
Political complications
But it is not only a question of different backgrounds and widely diverging interpretations of the law. The situation in Cambodia has also changed quite dramatically since June 21, 1997, when Cambodia's then co-prime ministers, Prince Norodom Ranariddh and his bitter rival Hun Sen, agreed to send a joint letter to the UN asking for assistance "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 request was made after repeated demands from the international - mainly Western - donor community and the United Nations, which was then represented in Cambodia by Thomas Hammarberg, a former director of the London-based human-rights advocacy group Amnesty International. Only a few weeks later, Hun Sen ousted Ranariddh in a bloody coup d'etat and forced him into temporary exile. The Western donor community was not amused, and the United States and Germany suspended all non-humanitarian aid until a free and fair election was held. Japan, Cambodia's largest donor, said it would halt new projects.
China, which Hun Sen referred to as "the root of everything that was evil in Cambodia" in an essay he penned in 1988, nonetheless came to his government's rescue. Longtime Cambodia watcher Julio Jeldres notes that China was the first country to recognize the change of regime after the July 1997 coup, and in December of that year, Beijing delivered 116 military cargo trucks and 70 jeeps valued at US$2.8 million. In February 1999, Hun Sen paid an official visit to China and obtained $200 million in interest-free loans and $18.3 million in foreign-assistance guarantees.
Since then, China has emerged as a major donor to Cambodia and - unlike aid from the West - Chinese assistance comes with no strings attached for promoting democracy or good governance. China is also a major investor in Cambodia, mainly in the garment industry, but also in agriculture, mining, hotels and tourism. Cambodia's dependence on the West will most likely further diminish when newly found oil and gas reserves come onstream.
According to the World Bank, Cambodia's total energy reserves may be as high as 2 billion barrels of oil and 10 trillion cubic feet of natural gas, which could generate as much as $2 billion in income, or several times the current combined amount that the country generates in domestic revenues and receives in foreign aid. [1]
So why would Cambodia risk upsetting its budding and lucrative relations with China - and Beijing's support for the Khmer Rouge would almost certainly be highlighted if the tribunal were to proceed - at a time when the country's dependence on Western aid and goodwill are set to diminish?
There are also reasons closer to home for Cambodia to scupper the trial. Jesper Huor, a Swedish journalist whose Cambodian father was interned and most likely executed in Khmer Rouge's infamous Tuol Sleng prison in Phnom Penh in 1977, points out that many in the present government actually belonged to the Khmer Rouge before they broke with their leaders and defected to Vietnam in the late 1970s.
That includes Prime Minister Hun Sen, though according to most sources, he was a low-ranking Khmer Rouge military commander and in a capacity not responsible for atrocities. But there are others in positions of prominence in Cambodia's currently ruling establishment who could be vulnerable and exposed during the trial, particularly if those accused began to talk or call in witnesses. Therefore, Huor argued, "Cambodia's government won't agree to a tribunal which they can't control." And, as Lemonde says, "The international judges are not prepared to participate in a show trial."
In other words, time is running out for the Khmer Rouge tribunal, and death rather than the law may ultimately catch up with the aging survivors of the genocidal regime. The top leaders of the Khmer Rouge who are still alive and who would be eligible to stand trial are all now in their 70s and 80s.
But as Trudy Jacobsen, an Australian academic, wrote in a recent issue of the Nordic Institute of Asian Studies' bulletin that a local Cambodian driver told her: "He didn't really care what happened at the tribunal, as he knew that the perpetrators would be reincarnated as beetles." In the end, as the trial bogs down in politics, that may be the best the survivors of the Khmer Rouge terror can hope for.
Cambodian as well as United Nations-appointed international prosecutors, defenders and judges are at the ready to take their positions on the court's benches. The day of reckoning is finally here for the leadership of the Khmer Rouge, which ruled Cambodia from April 1975 to January 1979, during which an estimated 2 million to 3 million people died from government-ordered executions, starvation and disease.
Or is it? Last November, legal experts from the UN submitted an 81-page document titled "Draft Internal Rules" for "the Extraordinary Chambers in the Courts of Cambodia". It has yet to be approved by the Cambodian side and, if an agreement has not been reached by the end of April, the international judges will consider asking the UN to withdraw from the tribunal, the French investigating judge, Marcel Lemonde, told Asia Times Online in an exclusive interview.
While people on the international side are emphasizing "the extraordinary chambers" part of the tribunal's charge and insisting on international standards, their Cambodian counterparts view the trial more through the sovereign lens of the "Courts of Cambodia". "We are not speaking the same language in many different ways," said Lemonde. The result may be that the accused leaders of the Khmer Rouge go unpunished for their crimes against humanity.
That would no doubt please China, the Khmer Rouge's main international supporter during the Indochina war as well as during its four years in power. After the Vietnamese invasion of Cambodia in December 1978 and January 1979, Chinese support helped the Khmer Rouge hold the line against Vietnamese troops from bases along the Thai border.
The latest problems for the trial began last November, when the Cambodian Bar Association (CBA) forbade local lawyers to attend a training program planned by the London-based International Bar Association (IBA), and threatened to cancel the program unless it solely selected the program's participants and speakers. "The prohibition by the Cambodian bar is part of a wider scheme of opposition designed to obstruct the operation of the tribunal," the IBA said in a statement dated November 24. The IBA subsequently canceled the program.
The Cambodian bar, for its part, accused the international group of "encroaching on its sovereignty", arguing that under Cambodian law the local bar is the only body mandated to regulate the country's legal proceedings. The UN-sponsored international contingent argues that the CBA appears to have overlooked Article 2.2 in an agreement that senior minister Sok An and Hans Corell, UN undersecretary general for legal affairs, signed on June 6, 2003, which says: "The Vienna Convention on the Law of Treaties, and in particular its Articles 26 and 27, applies to the agreement."
Article 27 states, "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." And besides, international law would have to apply. According to Robert Petit, the Canadian co-prosecutor, Cambodia's criminal law is "not complete and comprehensive, and sometimes contradictory".
Petit has relevant international experience, having previously served as a legal officer in the Office of the Prosecutor of the International Criminal Tribunal for Rwanda, as regional legal adviser for the UN's mission to Kosovo, and as senior trial lawyer in the Office of the Prosecutor for the Special Court in Sierra Leone. His Cambodian counterpart, Chea Leang, comes from a totally different legal tradition: she and most of the Cambodian judges on the tribunal were educated in the former Eastern Bloc, including in East Germany, the Soviet Union and Vietnam.
Political complications
But it is not only a question of different backgrounds and widely diverging interpretations of the law. The situation in Cambodia has also changed quite dramatically since June 21, 1997, when Cambodia's then co-prime ministers, Prince Norodom Ranariddh and his bitter rival Hun Sen, agreed to send a joint letter to the UN asking for assistance "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 request was made after repeated demands from the international - mainly Western - donor community and the United Nations, which was then represented in Cambodia by Thomas Hammarberg, a former director of the London-based human-rights advocacy group Amnesty International. Only a few weeks later, Hun Sen ousted Ranariddh in a bloody coup d'etat and forced him into temporary exile. The Western donor community was not amused, and the United States and Germany suspended all non-humanitarian aid until a free and fair election was held. Japan, Cambodia's largest donor, said it would halt new projects.
China, which Hun Sen referred to as "the root of everything that was evil in Cambodia" in an essay he penned in 1988, nonetheless came to his government's rescue. Longtime Cambodia watcher Julio Jeldres notes that China was the first country to recognize the change of regime after the July 1997 coup, and in December of that year, Beijing delivered 116 military cargo trucks and 70 jeeps valued at US$2.8 million. In February 1999, Hun Sen paid an official visit to China and obtained $200 million in interest-free loans and $18.3 million in foreign-assistance guarantees.
Since then, China has emerged as a major donor to Cambodia and - unlike aid from the West - Chinese assistance comes with no strings attached for promoting democracy or good governance. China is also a major investor in Cambodia, mainly in the garment industry, but also in agriculture, mining, hotels and tourism. Cambodia's dependence on the West will most likely further diminish when newly found oil and gas reserves come onstream.
According to the World Bank, Cambodia's total energy reserves may be as high as 2 billion barrels of oil and 10 trillion cubic feet of natural gas, which could generate as much as $2 billion in income, or several times the current combined amount that the country generates in domestic revenues and receives in foreign aid. [1]
So why would Cambodia risk upsetting its budding and lucrative relations with China - and Beijing's support for the Khmer Rouge would almost certainly be highlighted if the tribunal were to proceed - at a time when the country's dependence on Western aid and goodwill are set to diminish?
There are also reasons closer to home for Cambodia to scupper the trial. Jesper Huor, a Swedish journalist whose Cambodian father was interned and most likely executed in Khmer Rouge's infamous Tuol Sleng prison in Phnom Penh in 1977, points out that many in the present government actually belonged to the Khmer Rouge before they broke with their leaders and defected to Vietnam in the late 1970s.
That includes Prime Minister Hun Sen, though according to most sources, he was a low-ranking Khmer Rouge military commander and in a capacity not responsible for atrocities. But there are others in positions of prominence in Cambodia's currently ruling establishment who could be vulnerable and exposed during the trial, particularly if those accused began to talk or call in witnesses. Therefore, Huor argued, "Cambodia's government won't agree to a tribunal which they can't control." And, as Lemonde says, "The international judges are not prepared to participate in a show trial."
In other words, time is running out for the Khmer Rouge tribunal, and death rather than the law may ultimately catch up with the aging survivors of the genocidal regime. The top leaders of the Khmer Rouge who are still alive and who would be eligible to stand trial are all now in their 70s and 80s.
But as Trudy Jacobsen, an Australian academic, wrote in a recent issue of the Nordic Institute of Asian Studies' bulletin that a local Cambodian driver told her: "He didn't really care what happened at the tribunal, as he knew that the perpetrators would be reincarnated as beetles." In the end, as the trial bogs down in politics, that may be the best the survivors of the Khmer Rouge terror can hope for.
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