Wednesday, February 01, 2006

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.

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