Friday, February 10, 2006

Teacher Appointed KR Tribunal Press Officer

The Cambodia Daily
Wednesday, February 08, 2006

By Kay Kimsong and Erik Wasson
A Cambodian journalism teacher has been named the press officer for the upcoming Khmer Rouge tribunal, officials said Tuesday.

Reach Sambath, 38, was a reporter for Agence France-Presse for 12 years, and is now a stringer for The New York Times and a teacher of journalism at the Cambodian Communication Institute of the Royal Phnom Penh University.

<>He has a degree in journalism from California State University, Fullerton, a bachelor’s degree in horticulture from India and a journalism master’s degree from Columbia University in New York. <>
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<>“I would like to tell everybody the good news,” he told journalism students on Monday night. “I have been appointed a media person for the Khmer Rouge tribunal.”

He will continue teaching at CCI.

“To have a survivor of the Khmer Rouge as the public face of the trial is very important,” Documentation Center of Cambodia Director Youk Chang said Monday, adding that Reach Sambath witnessed the regime’s brutality as a child.

“The point of having the trial here is to involve Cambodian people, not just hold it and hope they will show up,” he said.

Helen Jarvis, adviser to the government’s tribunal task force, said Monday that she will be chief of public affairs for the tribunal. She said Reach Sambath was chosen in part for his extensive media experience.

“He was chosen because of his general capabilities and because he has been involved with the Cambodian media for a long time,” she said.

Asked if the government’s recent use of the courts to prosecuted critics of Prime Minister Hun Sen, and their quick pardons following Hun Sen’s political intervention, bodes ill for the Khmer Rouge tribunal’s independence, Jarvis said no.

“The law stipulates that the tribunal must meet international standards... every effort will be made in ensure that it will,” she said.

Asked the same question, Youk Chang said that with transparency and the involvement of ordinary Cambodians, the tribunal can be handled fairly.

Tuesday, February 07, 2006

U.N. office launches work in Cambodia for Khmer Rouge trial

(Japan Economic Newswire Via Thomson Dialog NewsEdge)PHNOM PENH, Feb. 6_(Kyodo) _ A permanent U.N. administrative office began work in Phnom Penh on Monday to help open the planned genocide trial of the Khmer Rouge leadership.

"I have very realistic hopes...we will make it happen," Michelle Lee, deputy director of the U.N. office, told reporters.

Lee arrived in Cambodia on Saturday and the work is expected to last three years.

"We've been waiting for a trial for a long, long time, for more than 25 years, so I hope that certain measures of justice can be achieved through this task," she said at the office about 15 kilometers west of the Cambodian capital.

Cambodia and the United Nations have not yet announced the names of the judges and prosecutors who will sit in the two courts -- the Trial Chamber and Appeal Court. But Lee said the U.N. side is finalizing a shortlist.

"On the U.N side, we are finalizing the short listing of the judges and a prosecutor. They have already gone for medical examinations, and as soon as we have all the medial clearance, the secretary general will submit the list to the royal government," she said.

The planned tribunal is intended to try Khmer Rouge leaders held responsible for the deaths of at least 1.7 million Cambodians in late 1970s.

According to the agreement between Cambodia and the United Nations, the Trial Chamber will have three Cambodian judges and two international judges, while the seven-judge Appeal Court will have four Cambodian judges and three foreign judges.

Although work on the tribunal is under way, there is still a shortage of funds from the Cambodian side.

Sean Visoth, head of the Cambodian team working for the trial, said that of $56.3 million needed for the three-year trial, $43 million for which the U.N. is responsible has been almost fully met, but Cambodia is still short of $9.6 million.

Only two senior Khmer Rouge figures are in custody -- former military commander Ta Mok and Kaing Khek Ieu. Three others -- Nuon Chea, Ieng Sary and Khieu Samphan -- currently live freely in Cambodia.


FAIR TRIALS MEAN JUSTICE FOR ALL

Mutch Chantha


Background

The Government of Democratic Kampuchea, known as the Khmer Rouge, took power in Cambodia in 1975. During its three-year, nine-month reign (1975-1979), this government committed the most serious violations of human rights in the post-World War II world. When the regime fell, some three million Cambodian people had died from forced labor, starvation, and execution.

Twenty five years later, those responsible for organizing, instigating and carrying out those crimes against humanity remain free. The legacy of the crimes has created a culture of impunity and has continued to haunt Cambodia today. The nature of the crimes committed was the most horrific in Cambodia’s history and has been classified as jus cogens. Impunity in the face of genocide and crimes against humanity is unacceptable. Therefore, by bringing those responsible for crimes of jus cogens is essential in delivering justice to Cambodians and in closing this chapter of the country’s history. Justice is a critical element for repairing the damage done to Cambodian society and for promoting national reconciliation. On the one hand, accountability for such heinous crimes can be an important preventive measure in Cambodia by demonstrating that those responsible for these offenses will have to face punishment, and on the other, it will promote awareness among the people about the meaning of justice and the rule of law.

A tribunal meeting international standards should have been created many years ago. But after Democratic Kampuchea (DK) was ousted from power by Vietnam in 1979, the United States and China led an international effort to call for the withdrawal of Vietnamese forces from Cambodia and to continue to recognize the DK as the legitimate government of Cambodia. Even though the nature of the genocide was known, the United States led a successful effort for the DK to maintain Cambodia’s seat at the United Nations, which it held in a coalition with others who fought against foreign occupation until 1991.

It is sad that the 1991 Paris Peace Agreement failed to stress the importance of bringing those responsible for DK’s gross human rights abuses to justice. In addition, the Communist Party of Kampuchea was given legitimate status in the National Supreme Council until it withdrew from the peace process and 1993 elections.

In a letter dated 21 June 1997 from the then-First Prime Minister Prince Norodom Ranariddh and the then-Second Prime Minister Hun Sen, Cambodia requested resources and expertise from the United Nations to try former Khmer Rouge. The UN Secretary-General responded in July 1998 (in July 1997, a coup against Prince Ranariddh put Cambodia in a state of extreme political instability) by appointing a group of experts to offer suggestions about how to proceed.

Several rounds of negotiation were conducted between the Royal Government of Cambodia’s Task Force (led by Senior Minister Sok An) and the United Nations team (led by Chief Legal Counsel, Undersecretary-General Hans Correll). On February 8, 2002, the United Nations unilaterally announced that it was withdrawing from the negotiation process. Its principal reasons were that the government was not negotiating in good faith, and the future tribunal, if created, would lack international standards of justice.

Six member states reportedly met with the United Nations Secretary-General and the Undersecretary-General for Legal Affairs and put pressure on the United Nations to return to the negotiating table with Cambodia.

A Fair Trial

It is generally recognized that the right to a fair trial is a norm of international human rights law that was designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent to which is a person’s right to life and liberty. This right is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone shall be entitled to a fair trial and public hearing by a competent, independent and impartial tribunal established by law.” The right to a fair trial is applicable to both the determination of an individual’s rights and duties in a suit at law and to the determination of any criminal charges against him or her. The term “suit at law” refers to various types of court proceedings, including administrative proceedings.

Certain standards were designed to assess a fair trial, but they are complex and constantly evolving. They may constitute binding obligations that are included in human rights treaties to which the state is a party. But they may be also found in documents (even non-binding documents) that can be taken to express the direction in which the law is developing. A fair trial can be evaluated based on the laws of the country in which the trial is being held; the human rights treaties to which that state is a party, and norms of customary international law. A minimum list for evaluating a fair trial would comprise: i) a state’s constitution, especially its provisions on human rights and the judicial system; ii) its Criminal Code and Code of Criminal Procedure; statutes on the establishment and jurisdiction of the courts and on the public prosecutor’s office, and iii) landmark court decisions pertaining to human rights.

Right to Legal Counsel under Cambodian Laws

The Cambodian legal profession was totally decimated by the Khmer Rouge, leaving the country with as few as ten professionally trained judges and lawyers by the time the Vietnamese invaded in 1979. While efforts were made by the government during the PRK and SOC years to reconstruct the legal system along the lines of Soviet principles imported from Vietnam, as recently as 1993, there were reportedly only five trained legal professionals in the entire country, aside from the cadre of untrained and highly-politicized CPP-appointed judges presiding over the people’s courts.

The number of licensed lawyers in the country had risen to 260 as of early June 1999. Approximately 40 of them currently work in the executive or legislative branches of government. Because government work is deemed incompatible with the autonomy required of a lawyer, these 40 are not considered to be practicing lawyers, leaving approximately 220 practicing lawyer in the country. With somewhere between 75 to 80 lawyers practicing with a legal aid organization or an NGO, there are fewer than 150 private lawyers in all of Cambodia; most of them practice alone or in small firms.

Since October 1995, the practice of law in Cambodia has been regulated by the Bar Association of the Kingdom of Cambodia and its governing Bar Council. The Bar Council has prepared a Code of Conduct governing lawyers and is responsible for maintaining compliance. The Bar Association is currently presided over by newly elected Suon Visal, a well-respected lawyer who previously served as Technical Director for the Cambodian Defenders’ Project of the country’s NGO that provides legal services to the poor.

The right to counsel in the pre-trial stages of a criminal trial is clearly linked to the right to a defense during the trial as set out in Article 14 (3) (d) of the ICCPR. The provision states that everyone shall be entitled in the determination of any criminal charge against him/her “to be tried in presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case.” This provision provides specific rights, including the right to be tried in one’s presence, to defend oneself in person, to choose one’s own counsel, to be informed of the right to counsel, and to receive free legal assistance.

The right to legal counsel was in fact guaranteed under the Constitution, and Criminal Code and Code of Criminal Procedure. Article 38 (8) of the Cambodian Constitution provides that “every citizen shall enjoy the right to a defender through judicial recourse.” Under the 1993 SOC Law on Criminal Procedures, Article 75 states: “When the accused person appears for the first time, the investigating judge shall inform him or her of the imputed act, receive his or her statement after informing him or her of the right to answer or not to answer without the assistance of a lawyer or defender chosen by him or her or appointed automatically.” Article 76: “If the accused tells the judge that she or he chooses a lawyer or requests that a lawyer shall be automatically appointed by the government for his or her defense, then the investigating judge shall suspend the interrogation and call the counsel shortly in order to interrogate the accused in the presence of counsel.”

The right to counsel is provided with even greater specificity by Article 10 of the UNTAC Law, which provides that “the right to assistance of an attorney or counsel is assured for any person accused of a misdemeanor or crime. No one may be detained on Cambodian territory more than 48 hours, now amended to 72 hours, without access to assistance of counsel, an attorney or another representative authorized by the present text, no matter what the alleged offense may be.”

It should be noted that Cambodia is also a signatory to major international human rights instruments. The 1993 Constitution recognized the Universal Declaration of Human Rights of 1948 and other international human rights instruments. Cambodia just signed the Additional Protocol to the ICCPR, which makes individual citizens subject to international law, inter alia United Nations Human Rights Committee. However, Cambodia does not strictly abide by its treaty obligations.

Despite the laws specifying the importance of having legal representation at all stages of criminal proceedings, Cambodian authorities have often failed to offer adequate legal assistance to those who are arrested and detained. The right to legal counsel of one’s own choice – when he lacks the financial means, he has the right to have a court-appointed defense counsel at no cost, because this is necessary in the administration of justice – has not been ensured when an accused cannot afford one.

This is of great concern to the future Extraordinary Chambers. Below, I state how this right to legal counsel is implemented and guaranteed during the proceedings, and address a few foreseeable problems.

Legal language regarding the “assistance of counsel of their own choosing.” Based on my analysis, this phrase means that all persons are entitled to call for the assistance of a lawyer, who is qualified and competent, of their choice to protect and establish their rights and to defend them at all stages of criminal proceedings. If the accused cannot afford his or her own counsel, the authorities must provide a lawyer free of charge if the interests of justice so require. Whether or not the interests of justice require such an appointment depend primarily on the seriousness of the offense and the severity of the potential penalty.

However, it still creates room for different interpretations. “Assistance of counsel of their own choosing” is not likely guaranteed under Cambodian law. According to Article 5 of the Law on the Bar of Kingdom of Cambodia, only Cambodian lawyers can represent their clients in court. Based on this article the “assistance of counsel of one’s own choice” was unlikely to be ensured because the accused cannot access qualified, competent, reliable, and impartial counsel. Furthermore, the accused may not want to choose a Cambodian counsel, if he or she believes that his or her interests will not be served. This creates a conflict of law. When it arises, the interests of justice of the accused will be affected and the principle of a fair trial will not be guaranteed. It should be noted that “everyone charged with a criminal offense has a primary, unrestricted right, including the right to defend himself.” Thus, he is entitled to access to any competent lawyer. This right will not be respected and protected unless the inconsistency between the Law on the Bar and Law on the Extraordinary Chambers is rectified.

Lack of international experience and exposure. Not many Cambodian lawyers have been trained in international law and important binding treaties, conventions, and covenants that would be frequently referred to during the tribunal. The majority of Cambodian lawyers do not have experience in representing cases or the conduct of judicial proceedings in international tribunals, although the Law on Extraordinary Chambers dictates that existing laws and procedures will be applicable. Training alone is not sufficient to enable them to provide adequate criminal defense for those accused of high-profile international crimes. Experience and familiarity with international court proceedings is valuable for the accused. Despite the fact that foreign lawyers are allowed to practice with a Khmer lawyer, a gap still exists when it comes to communication and understanding, and the defense process. On the other hand, Cambodian lawyers still face challenges before a panel of mixed judges during the trial process when they present their legal arguments. Flexibility is required if one intends to make a strong defense. I would suggest that the Law on the Bar should be amended to accommodate foreign lawyers to represent clients in the Extraordinary Chambers and where possible, a position of “co-lawyer” be established, since the Law has already established “Co-Investigating Judge and Co-Prosecutor”. I suggest that such an exception be considered only for the Extraordinary Chambers, in order to avoid the concern of job-stealing from well qualified and experienced foreign lawyers. The Bar Association of Cambodia made it clear that it does not want to recruit more lawyers because it intends to create job for the current lawyers.

Independence and impartiality of counsels. The independence and impartiality of Cambodian lawyers is strongly questioned by many, in particular, the accused. At least one out of two lawyers would probably count themselves as victims of the Democratic Kampuchea regime. This could lead one to question whether a lawyer would sincerely defend a client whom he knows committed a murder or caused the death of his or her relatives through forced labor or starvation. When a defense lawyer has his independence or impartiality questioned, a conflict of interest will emerge. The interests of justice of the accused will also be jeopardized. Even the accused person is provided with the right to change his or her defense counsel if he or she thinks that the said lawyer does not serve his/her interests of justice. But the change itself does not help much because the accused may feel strongly that he will never have an independent and impartial defense or be well represented. But he may opt to have one rather than nothing. This does not mean that I don’t have confidence in Cambodian lawyers, but this is a special court for special cases. How can the Extraordinary Chambers and Bar Association, in particular the Bar Disciplinary Council, ensure the independence and impartiality of a lawyer? How can the Code of Ethics be enforced?

Language. The right to an interpreter is critical to ensure a fair trial. In the determination of any criminal charges against him/her, every person is entitled to have the free assistance of an interpreter if he cannot understand or speak the language being used in the court, as stated in Article 14 (3) (f) of the ICCPR. The official working languages of the Extraordinary Chambers are Khmer, English, and French, as stated in Article 45 of the Law on Extraordinary Chambers and Article 26, paragraph 2 of the Agreement. The main issue raised by this provision is what interpretation should be given to the words “used in court.” While it could obviously be said to refer to oral proceedings, this needs to be clarified. Nevertheless, the right to translations of written documents (documentary evidence and testimony) is not expressly stated. Written translations of such documents will be costly and the authenticity of the translation can be called into question. The question in this regard is who will be responsible for the cost of translations and their authenticity? It is important that the Extraordinary Chambers recruit qualified interpreters and translators who were trained in law and have knowledge of legal terminology. There are not many interpreters and translators in Cambodia who were trained in law and understand court proceedings, and who can provide simultaneous interpretation that is not limited to the court proceedings. Language will be one of many challenges that the Extraordinary Chambers will face. It will have to establish rules for interpretation: whether it requires simultaneous or consecutive interpretation, and the exact words used in court or oral proceedings. It may be recommended that future interpreters and translators should be trained in legal terminology and in court procedures before they are assigned to their job.


Monday, February 06, 2006

Cambodian director talks about his work and the ‘nuclear bomb’ that struck his homeland

By Lekha Shankar
Thai Day

He is recognized as the cinematic voice of Cambodia.

Rithy Panh escaped from his native Cambodia in 1979, at the end of the the Khmer Rouge genocide, to neighboring Thailand. Then, he moved to Paris where he studied cinematography. He returned to his homeland more than two decades later in 1990.

Since then, Panh has made nearly 10 documentary films on the genocide, including S21,The Khmer Rouge Killing Machine which screened at many festivals around the world, including one in Bangkok.

The soft-spoken and insightful director lives between two countries, using France as his home base, and Cambodia as the subject of his movies.

Panh, who flies to his native Cambodia every month to make movies that revisit his country’s torrid and tumultuous past, also heads Fonds Sud Cinéma, a government-sponsored funding agency in Paris.

His latest film, The Burnt Theatre, will screen at the Bangkok International Film Festival this month. The film centers around the burning down of the country’s National Theatre, which to Panh, implied the burning down of Cambodia’s cultural heritage.
As in his earlier film, S21, The Khmer Rouge Killing Machine, Panh zeroes in on the actual “survivors” of the event – in this case, the artists of the country – who speak with pain and anger about the near-eradication of art in Cambodia.

The reclusive director vented his pain and angst in a rare interview at the all-Asian Osian-Cinefan Film Festival in New Delhi, India, where his movie screened, soon after it premiered at the prestigious Cannes Film Festival.

When exactly did you leave Cambodia?

Well, I escaped from the country when I was a young 14-year-old during the Khmer Rouge regime in 1979. I stayed in Thailand for a while before I moved to Paris. There, I studied cinematography for two years. I returned to Cambodia only in 1990. But after that, I’ve been coming back regularly to make my movies.

Have the scars of the genocide healed for you, now that you live overseas?

It never will. It’s always within me, and I have no words to describe it. It was like a nuclear bomb that devastated our country. I guess we were the sacrificial generation, and it will take another two or three generations to reap the benefits of our sacrifices.

I can never forget it, but I’ve told myself that I have to deal with it if I have to survive. And I’ve chosen cinema to revive my memories, as I want the memories to survive.

What does cinema mean to you?

Cinema to me is a rewinding of memory, so that the present and future generations can remember the past and learn many lessons from it. The genocide led to a drastic eradication of memory in my country. We lost our identity and our dignity, and I want to reinstate these through my films.


Are your films a cathartic experience for you?
They definitely are. They’re not just about aesthetics but about my life and my memories. I can’t make nice films with nice subjects and nice people, because my life was very different. I’ve been so close to death, and making films now is like a rebirth for me.

What was the impact of your movies in Cambodia?
Well, they led to many arguments and discussions. This ‘talking’ is very important in my country. I want to jog their memories and give back my people energy lost during the genocide.

Do you feel at home coming back to Cambodia?

Of course, this is where I belong. The most important thing about making films for me is that I come back to my country and to my people, who I still miss a lot.

What are the advantages and disadvantages of making films on Cambodia, as an expatriate?

The disadvantage, of course, is that I’m away from my homeland and my people. But the advantage is that I have ‘distance’ which is importance for an artist. I’m also able to live in two countries, imbibe two cultures, speak two languages, etc.

Is it easy making films there?

Not at all. It took me five years to train people to help me shoot my films, as we have no film culture in Cambodia at all. I sold my house, car, etc. I now have a team of five, who have become my film crew.

What prompted you make The Burnt Theatre?

It started with the actual burning down of the well-known Suramet Theatre in 1994. No one seems bothered to erect it again – it’s like a blot in our memory. We all need culture; we need theater. And theater needs a physical space for performances.

I’ve used real people to speak the truth in the film. But more important is the fact there seem to be two art forms in my country now – one for the artists and one for the masses. This is the effect of globalization, and it’s happening in most countries around the world. We used to enact the Ramayana for seven days, but now, it’s done in a few hours. The eradication of memory seems to have led to a near-eradication of the arts in my country.

What is government’s role in protecting the arts in Cambodia?

They have no clear or strong policy, which is a pity because we need to protect our cultural heritage. We don’t need any cultural imperialists from outside. I admire people like Princess Buppha Devi who has done so much to keep alive our dance forms, but we need a lot more people like her.

Are your films a social critique of your country?

I prefer to call them a reflection rather than a critique. It’s so easy to criticize, but we need to reflect, ponder and move forward. Artists definitely have a role to play in society. They help to make the people think about the past and the future.

What are the projects you are working on in Cambodia?

I’m working on many projects, but the most important is the film center I plan to set up to train personnel for the industry. I’ve been given a building for this by the Ministry of Culture, and have to now work on special software programs, lecture courses, etc.

Do you think we need to hold more purely ‘Asian’ film festivals?

Certainly yes. We need more ‘Asian’ film festivals like the Osian-Cinefan festival in India, because we need to see and believe in our own cinema first. We need to understand each other’s films and protect our Asian culture.

Why is Asian cinema holding center stage today?

They have new stories, narrative styles, and filmmakers who are unique. We have talented directors from so many Asian countries – Korea, Taiwan, Thailand. I admire Korea for the way they are promoting their film industry.

As for Thai cinema, it has moved ahead a lot and will certainly be in a position of strength in a few years. I’ve seen the movies of young Thai directors like Pen-ek Ratanaruang and Apichatpong Weerasethakul and enjoyed them. I love the sights, sounds, and smells of Thailand, and am really looking forward to attending the Bangkok International Film Festival.

UN Delegate to KR Trial Arrives in Cambodia

The Cambodia Daily
Monday, February 6, 2006
Pin Sisovann

Michelle Lee, the UN's representative to the Khmer Rouge tribunal, arrived in Cambodia on Saturday to take up residence in preparation for the long-awaited trials, a government official said. Sean Visoth, the Cambodian government's tribunal coordinator, confirmed Lee's arrival. A formal meeting between the UN dele¬gation head and Sean Visoth may take place today, he said. "I have not met with her yet. Maybe we will meet with her tomorrow," Sean Visoth said on Sunday, adding that he had been busy over the weekend overseeing the installation of air-conditioning equipment at the RCAF headquarters in Kandal province's Ang Snuol district, which will be used for the tribunal proceedings.

Wednesday, February 01, 2006

High Time for Justice: The US and the Khmer Rouge Tribunal

JURIST Special Guest Columnist Craig Etcheson, author of After the Killing Fields: Lessons from the Cambodian Genocide (2005) and a Visiting Scholar at Johns Hopkins University's School of Advanced International Studies, says the time has come for the United States to throw its full diplomatic weight behind the new Cambodia-UN Khmer Rouge Tribunal finally being set up in Phnom Penh...

In the late 1970s, Cambodia's Khmer Rouge murdered more than two million people, and enslaved the survivors in a brutal rural gulag. The authors of these crimes still live freely, enjoying absolute impunity. It has been more than 27 years since the Khmer Rouge were driven from power, and nearly nine years since negotiations on an accountability process began between the Cambodian government and the United Nations. Despite this shameful record of delay and dithering, in the next few days, Cambodians finally expect to see the first glimmerings of justice. UN officials are to join Cambodian jurists in establishing a unique "mixed" national-international criminal tribunal to judge Khmer Rouge leaders responsible for those crimes.

The Extraordinary Chambers in the Courts of Cambodia, as the Khmer Rouge Tribunal is formally known, is an experimental form of internationalized justice that attempts to reconcile the principle of complementarity with international concerns for due process and judicial independence. The two-chamber special court will have a majority of Cambodian judges at each level, working alongside a minority of international jurists nominated by the UN. Decisions in chambers will be taken by a "super-majority principle", which requires international jurists to concur in any judgment. Cambodian and international co-prosecutors and co-investigating magistrates are to cooperate in trying a small group of surviving Khmer Rouge leaders, with the personal jurisdiction of the court defined as "senior leaders" and "those most responsible for the most serious violations". Temporal jurisdiction will be April 17, 1975 to January 6, 1979, the period when the Khmer Rouge occupied Cambodia's capital. Subject matter jurisdiction encompasses war crimes, genocide, crimes against humanity, crimes against internationally protected persons, and violations of Cambodia's 1956 Code Penal.
Negotiating the jurisdictional contours of the court was challenging in part because the Cambodia's ruling party is led by former low- and mid-level Khmer Rouge officers, and a few of them have what is euphemistically known as "interesting resumes". Moreover, Cambodian Prime Minister Hun Sen is in the habit of using Cambodia's courts to harass his domestic political opponents. Recent arrests of Cambodian politicians, labor leaders, journalists, and human rights activists on flimsy charges have only underscored this tendency. Historically, Cambodia's court system has never exhibited a strong sense of judicial independence.

This goes a long way toward explaining why some international human rights organizations remain wary of the proposed process. Human Rights Watch recently suggested it is "increasingly doubtful that a tribunal established within the Cambodian court system would ensure fair and impartial trials." Cambodian human rights campaigners, however, take a more realistic view, aware that transitional justice processes are inherently political, and that politics is the art of the possible. The Documentation Center of Cambodia's Youk Chhang, for example, argues that "some people want a perfect trial, but this is what we have. Let's make the best of it."

It is time to do just that, for the tribunal is fast approaching. On January 18th, the tribunal's recently appointed chief administrator took possession of the court's premises from Cambodia's Royal Armed Forces at Kambol outside Phnom Penh. The UN and Cambodia have largely completed the process of selecting judges and prosecutors, and will soon be announcing those appointments. They are now recruiting lower-level staff such as deputy legal officials, investigators, computer specialists and translators. Some of the finalists for the key international slots bring impressive credentials to the bench. The court's nascent administration has also begun taking initial steps to organize the already-mammoth amount of potential evidentiary material for the projected three years of proceedings. Much of that material was collected with funding from the United States government.

>From 1994 to 2000, the United States played a pivotal role in shepherding the Khmer Rouge Tribunal into being. In 1994, the US adopted the Cambodian Genocide Justice Act, which made it "the policy of the United States to support efforts to bring to justice members of the Khmer Rouge for their crimes against humanity." In mid-1990s, the US funded the establishment of the Documentation Center of Cambodia, which has become the premier repository of evidence on Khmer Rouge crimes. In the late 1990s, US diplomats played a hands-on role in helping the Cambodian government devise the Extraordinary Chambers, creating the institutional structure for the coming proceedings. The US also was a key player in crafting the compromise between Cambodia and the UN Secretariat that persuaded the world body to participate in the trials.
With the election of George W. Bush in 2000, however, the US government dropped the ball, and has been largely silent on the issue ever since. But with Condoleezza Rice's elevation to the post of Secretary of State, and the recent departure of Ambassador Pierre Prosper from State's Office of War Crimes Issues, officials in Foggy Bottom have begun to reassess the policy of benign neglect that has governed Cambodian genocide justice policy in Washington for the last five years. This reassessment should result in a US re-engagement with the Khmer Rouge Tribunal.

The State Department has hinted in recent months that the US might contribute financially to the Khmer Rouge Tribunal if it shows itself to be "independent" and up to "international standards". Rather than standing by and clucking as the proceeding unfolds, however, the US can do more to assure that the tribunal is as good as it can be by becoming actively engaged in the process. The UN's expenses for the tribunal have already been largely subscribed by other international donors, but the US might consider contributing to the UNDP fund that is being established to defray Cambodia's tribunal costs. This is newly possible because this year Congress dropped legislative restrictions on US assistance to the tribunal. Alternatively, the US could fund training programs for Cambodian and international officials of the tribunal, and direct resources to some of the many civil society organizations that are working to prepare for the trials. These NGOs will need on-going support during the three-year duration of the trials as they engage in monitoring, outreach and other activities in conjunction with the tribunal.

Most of all, however, the State Department could make a difference on the Khmer Rouge Tribunal simply by throwing its weight behind the process. The tribunal should once again become a priority not only at the US Embassy in Phnom Penh, but also at the Office of War Crimes Issues, the Office of Legal Affairs, the Office of Reconstruction and Stabilization, the Bureau of East Asian and Pacific Affairs, the Bureau of Democracy, Human Rights and Labor, and the US mission at the United Nations. Secretary Rice needs to get her people singing off the same sheet of music. When US ambassadorial-rank diplomats join with those at the deputy and assistant secretary levels to consistently and coherently press their concerns, UN and Cambodian bureaucrats sit up and take notice. The United States has exercised no leadership on the Khmer Rouge Tribunal for the last five years, and it is high time that it did.

Craig Etcheson is a Visiting Scholar at Johns Hopkins University's School of Advanced International Studies. His most recent book is After the Killing Fields: Lessons from the Cambodian Genocide (Praeger 2005).

A Cambodian Judge’s Views on the Tribunal

Terith Chy

When thinking about the atrocities committed in the 20th century, the Khmer Rouge regime stands out as one of the worst. Some 30 years ago, the Khmer Rouge changed nearly every social system in Cambodia – education, religion, markets, and more – in an attempt to make it the world’s most advanced communist country in a matter of days. To achieve their agrarian revolution, they moved all of the people in Cambodia’s cities to the countryside to farm. There, they endured untold hardships, including overwork, malnutrition, forced separation from their loved ones, and execution.

No one living in Cambodia between 1975 and 1979 could escape, from the king to ordinary people. One of them is Seng Sivutha, who is now a judge on the appeals court; he was 13 when the Khmer Rouge took power.

Life under the Khmer Rouge

Less than a day after the Khmer Rouge came to power on April 17, 1975 they began to empty the cities. Vutha’s family was relocated from Phnom Penh to the village of Thmey in Rolaing Ken subdistrict, Kandal Stung district, Kandal province.

Like other Cambodians, Vutha was assigned to work in the fields. “I was sent out to tend cows, plant tapioca, and make fertilizer from tree leaves,” he said, adding that he met his parents and sister often during 1975 and 1976.

But starting in 1976, his situation changed when he was assigned to work in a mobile unit far from his home and family. Once every three to six months, Vutha was allowed to visit home. He was only able to visit his father twice before he passed away. In all, Vutha lost 21 relatives during the Khmer Rouge reign, including his father, uncles, aunts and cousins.

Education

Right after the Vietnamese invaded Cambodia in 1979 and overthrew the Khmer Rouge, people began rebuilding their lives. Most people headed back to the place where they were living before 1975.

When he first arrived in Phnom Penh, Vutha saw that education was vital for his future as well as for the reconstruction of the country. Despite many difficulties (like other Cambodians, Vutha’s family had no financial resources, and the education system had been destroyed during the regime, and lacked teachers, facilities, and materials), Vutha managed to finish high school in 1987.

He was able to fulfill his dream of acquiring higher education in 1988, when he was awarded a scholarship from the Ministry of Education of the Republic of Kampuchea to study law in Ukraine, and was awarded a master degree’s in law in 1994. He also attended a number of training programs on international law, international criminal law, international humanitarian law, and combating terrorism.

Career and Challenges

With an academic background in law and extensive understanding and experience in local and international law, Vutha, who has been involved in legal work for more than 10 years, is now a judge on the appeals court. “With deep interest in the legal area and through legal study and research, I developed a justice-motivated sense, and want to do everything for the sake of social justice,” he said.

Being in a position to decide who is innocent and who is guilty is a huge responsibility that presents considerable challenges. For example, the Cambodian public has little understanding of the country’s laws, which is a challenge for both Judge Vutha and for justice as a whole.

But Judge Vutha views such challenges as a motivation for his work. When asked about what inspires him in his job, he said, “Because I love my people. I will do my best to protect the rights of my people. Delivering justice to everybody, as stated in the country’s laws, is the main motivation for me.”

Personal Views on Extraordinary Chambers Issues

The perpetrators of atrocities worldwide have been tried for their crimes, including those in Europe and Japan after World War II, Rwanda, the former Yugoslavia, Sierra Leone, East Timor, and recently, Iraq. In Cambodia, however, the perpetrators of a regime that claimed nearly two million lives have been living freely for nearly three decades.

The negotiations between the United Nations and Cambodian government on the establishment of the Extraordinary Chambers for prosecuting senior leaders and those most responsible for crimes committed during the period of Democratic Kampuchea lasted nearly eight years. Most of the obstacles to the tribunal have now been removed, and the UN and Cambodian government are screening and selecting candidates to serve on the Extraordinary Chambers. Once this process is complete, the tribunal will begin.

Time: The outcome of the trials and the amount of time they will take are not certain. Many legal issues will likely be raised that might prolong the trials, as they have in other nations. The International Criminal Tribunal for Rwanda, for instance, began in 1995 to try the perpetrators of a genocide that took nearly one million lives within 100 days. Ten years later, the trials are still being held. And the trial of Slobodan Milosevic in the former Yugoslavia began in 1999 and shows no sign of ending. Who knows what will happen in the trials of the former Khmer Rouge leaders?

“It would not be an easy task to gather evidence and launch an investigation into a crime committed 30 years ago,” said Judge Vutha, expressing his concerns about the possible length of time it might require to prosecute former leaders of the Khmer Rouge regime. He also stressed several other important aspects of the tribunal.

Presumption of Innocence: Being a judge, one has to be impartial and unbiased; otherwise, the principle of presumption of innocence would be violated. This principle will be applied at the Khmer Rouge tribunal. If a judge or tribunal official says publicly that any former leader of the Khmer Rouge is guilty at any time before a verdict is reached, this would be considered a biased statement. For Judge Vutha, as long as the former Khmer Rouge leaders have not been convicted by the tribunal, he would not say anything about their guilt. “I would not say whether they are guilty or not until the court delivers its final decision,” said the judge, answering a question on his own thinking with regards to the culpability of the Khmer Rouge leaders.

Right to Defense Counsel: It is notable that the Extraordinary Chambers (or the Khmer Rouge tribunal) is a hybrid domestic/international court. Judges and prosecutors from Cambodia and abroad will be involved in the tribunal and will apply both national and international laws during the proceedings.

Some lawyers have questioned whether an international lawyer can fully represent former Khmer Rouge leaders at the Extraordinary Chambers. Article 13 of the Agreement between the Cambodian government and United Nations on the establishment of the Extraordinary Chambers and article 35 of the Law on the establishment of the Extraordinary Chambers clearly provide that “The accused is entitled to have adequate time and facilities for the preparation of their defense and to communicate with counsel of their own choosing.” But, article 5 of the Cambodian Bar Law states that foreign lawyers may not represent clients; they can only assist Cambodian lawyers in the courtroom.

For Judge Vutha, this should not hinder the tribunal’s legal process. “According to article 31 of the national constitution and article 35 of the Khmer Rouge tribunal law, the accused are entitled to choose any legal service for their defense,” he said. He added that if the accused choose foreign counsel, it will not be an obstacle because The Extraordinary Chambers will also have foreign judges and prosecutors.

“The law on the establishment of the Khmer Rouge tribunal is a bridge to justice, and we have waited for it for months and years,” said Judge Vutha.

Although the Khmer Rouge committed their crimes 30 years ago, bringing those responsible to trial is essential for ending Cambodia’s culture of impunity and strengthening its rule of law.