Salvaging the Remains: The Khmer Rouge Tribunal on Trial

• Author: Michael Lieberman
• Pages: 06

164 MILITARY LAW REVIEW [Vol. 186

SALVAGING THE REMAINS: THE KHMER ROUGE

TRIBUNAL ON TRIAL

MICHAEL LIEBERMAN*

1. Introduction

   Over a generation after the Khmer Rouge regime's fall from power, Cambodia finally will have the opportunity to hold its remaining principals accountable for their crimes. This long-awaited prospect results from a recent agreement between the United Nations and Cambodia to prosecute the "senior leaders of Democratic Kampuchea and those who were most responsible"1 for the regime's rampage of bloodshed.2 In the hopes of the Cambodian people who have for so long awaited this day, justice delayed need not be justice denied.

   Cambodia's 2003 Law on the Establishment of the Extraordinary Chambers, recently ratified by Cambodia's parliament, implements the

   Agreement.3 This law establishes a special tribunal within Cambodia's existing court system that features Cambodian judges, prosecutors, and defense counsel working alongside international counterparts. It thus differs from a purely international tribunal such as the International Criminal Tribunals for Rwanda or Yugoslavia.4 It is instead one of a number of "hybrid" tribunals that have also been established in Kosovo and Sierra Leone.5

   Hybrid courts differ in specifics, but all feature both international and domestic judges, prosecutors and defense counsel, and sit in the country where the crimes they are adjudicating occurred.6 These courts purport to offer dual benefits, combining the expertise and integrity of international personnel with the ownership, accessibility, and perceived legitimacy of a trial staffed by nationals in the place of the atrocities.7

   Ancillary benefits may accrue as well, such as reduced expenses, easier access to witnesses and evidence, and the potential for local capacity building.8

   For these reasons, many human rights groups and scholars welcome this innovation as another potential mechanism to address serious international crimes.9 Cambodia's Extraordinary Chambers law, however, has elicited intense criticism. The most prominent of the Agreement's detractors is UN Secretary-General Kofi Annan, whose lead negotiator at one point found the Cambodian position so unacceptable that he walked away from the negotiating table.10

   Adamant, however, that some reckoning take place, the UN General Assembly, quickly ordered him back and directed him to reach an agreement,11 greatly circumscribing his flexibility. The current agreement is the result.

   In a relatively blunt report on the agreement to the General Assembly, Annan cited as a serious concern the "precarious" state of the judiciary in Cambodia and recalled that both the UN Special Representative to Cambodia and the General Assembly had found serious "problems related to the rule of law and the functioning of the judiciary in Cambodia resulting from interference by the executive with the independence of the judiciary."12 Human rights groups and some commentators share the Secretary-General's skepticism and have been strident in their condemnation. 13 At least one has gone so far as to call

   for UN withdrawal if the Agreement is not renegotiated to provide for further assurances against governmental interference.14

   In addition to the state of Cambodia's judiciary, critics cite vagaries in the law and confused, potentially intractable decision-making processes as potentially fatal flaws.15 These shortcomings of the Chambers' legal structure might be less of an issue if those concerned had more faith in Cambodian Prime Minister Hun Sen's willingness to bring former Khmer Rouge leaders to justice. Of course, the Chambers' weaknesses exist for this very reason, and there is a well-placed fear that Hun Sen will work behind the scenes to delay the trials, mete out lenient sentences or engineer outright acquittals.16

   Though the Cambodian government originally requested international assistance for a tribunal,17 and the Prime Minister now expresses his support for one,18 many see this position at odds with his interests and actions. Hun Sen has demonstrated some resolve to bring some Khmer Rouge to justice by arresting two former Khmer leaders, Ta Mok, known as "the Butcher," and Kang Kek Ieu, known as "Dutch," who now await trial for crimes against humanity.19 It is questionable, however, whether their arrests indicate Hun Sen's determination to bring former Khmer Rouge leaders to justice or his desire to placate the international community by singling out perpetrators who happen to have fallen from grace. Numerous other Khmer Rouge leaders remain free. One, Ieng Sary, former Democratic Kampuchean head of state, received a royal pardon in 1996.20 Two others, former head of state Khieu Samphan and "ideological guru" Nuon Chea, both live openly in Phnom

   Penh, the capital city of Cambodia.21 As recent defectors to the government, they could well enjoy its continued protection.22

   Indeed, detractors of the Agreement point out, several former Khmer Rouge leaders hold powerful positions within the government.23 These leaders include Hun Sen himself, who defected to Vietnam two years prior to that country's invasion of Cambodia in 1979.24 At the time of his defection, the Khmer Rouge already had been in power for two years, by which time it had already proven itself to be a relentless perpetrator of atrocity.25 Yet upon its invasion, Vietnam installed Hun Sen as a high-ranking official in a new Cambodian government.26 Considering Cambodia's longstanding distrust of Vietnam,27 and Hun Sen's role in the Khmer Rouge regime, Hun Sen has good reason to keep skeletons in their closets.28 In addition to these motives, it may be that Hun Sen is not eager to establish accountability as a standard of Cambodian governance.29

   The stark implications of these facts are heightened by Hun Sen's insuperable demands for a hybrid court with an equal or predominant role for Cambodian personnel, many of whom, as noted above, are subservient to his diktat.30 Though as noted above, hybrid courts hold out the promise,31 few, if any, believe that fostering a sense of local ownership or promoting judicial professionalism accounted for Hun Sen's negotiating position. Hun Sen's motives and the Chambers' weaknesses notwithstanding, the Extraordinary Chambers are

   Cambodia's last opportunity to bring its past tormentors to justice. At this point, the interests of justice must merge with those of practicality. The longer the trials are delayed, the less the chance that crucial evidence, witnesses, or even the defendants will be available. The perfect, in this case, must not be made the enemy of the good.

   Beyond accountability for the perpetrators and justice for the victims, moving forward is a good way for the international community to lend real assistance to Cambodia's stultified judiciary and to have a chance at helping bring the Khmer Rouge leaders to justice. The rule of law in Cambodia, as noted, is in a poor state. The tribunal, staffed by international experts and watched closely by the global community, may provide an opportunity to bolster ongoing efforts at enhancing the integrity and capability of Cambodia's justice system. With sufficient effort, the tribunal could serve as a workshop for Cambodian judges, and give the Cambodian people a chance to witness legal procedures according to international standards of law. Despite the current regime's wishes, it might even do the same for Cambodian elites. Through outside political pressure on the Cambodian government not to interfere with the tribunal and a vigorous insistence upon developed criminal justice principles in trial and appellate chambers, Cambodia may benefit from seeing justice done alongside a judicial shot in the arm. In order for this to occur, not to mention real accountability, the international community must be prepared to make the most out of the Extraordinary Chambers.

   This article seeks to provide initial guidance towards that end. It begins by describing the makeup of the Extraordinary Chambers and the outlines of its substantive and procedural laws. It then critically examines the arguments of human rights groups such as Amnesty International, Human Rights Watch, and others, which condemn the tribunal as insufficient and rife with opportunities for malfeasance. The paper confirms the validity of many of these critiques, while questioning the strength of others in light of the Cambodian and international law under which the Chambers will formally operate. In this way it seeks to provide a first step at rectifying some of the tribunal law's shortcomings. After suggesting methods to do so via a purely legal strategy, it goes on to suggest ways the international community can influence the Chambers to live up to its promise of closing a chapter of Cambodia's long-running nightmare.

2. Overview of the Agreement

   The current law establishing the tribunal establishes "Extraordinary Chambers" within Cambodia's extant judicial system to try the primary perpetrators of the Khmer Rouge's crimes.32 Its subject matter jurisdiction covers crimes under the 1956 Penal Code of Cambodia, namely homicide, torture and religious persecution.33 It further includes crimes under numerous international treaties, such as the Genocide Convention of 1948,34 "grave breaches" of the Geneva Conventions of 1949,35 the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, and the Vienna Convention of 1961 on Diplomatic Relations.36 The current law also takes its definition of crimes against humanity from the Rome Statute establishing the International Criminal Court.37

   The procedures "shall be in accordance with Cambodian law,"38 but where such law does not address an issue, "guidance may also be sought in procedural rules established at the international level,"39 such as Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights (ICCPR),40 to which Cambodia is a party.41

   Structurally...