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KHMER ROUGE JUSTICE

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  1. Why is it important to bring KR leaders to justice?
  2. For what crimes will KR leaders be tried?
  3. What is the structure of the KR tribunals?

Structure of the KR tribunals


A. LOCATION

UN Position:
The trials should be held in an Asian country other than Cambodia, such as the Philippines or Japan.
Rationale:
- 1. concerns for security of witnesses as well as the accused
- 2. fear of political influence/intimidation - "the level of corruption in the court system and the routine subjection of judicial decisions to political influence would make it nearly impossible for prosecutors, investigators and judges to be immune from such pressure in the course of what would undoubtedly be very politically charged trials."
- 3. desire for fairness in the adminstration of justice - "trials of the Khmer Rouge leaders must observe the maxim that justice not only be done, but be seen to be done. To serve the purposes of criminal justice outlined in the introduction to our report, the Cambodian people must have confidence in the fairness of the process."

CCP Position:
The trials should be held in Cambodia.

Structure agreed upon:
Trials will be held in Cambodia.


B. JUDGE APPOINTMENT

UN position:
Most or all judges appointed to try former Khmer Rouge leaders should be non-Khmer.
Rationale:
- 1. lack of qualified individuals because most experienced Khmer legal scholars and personnel were killed in the Killing Fields
- 2. Khmer judges would be more susceptible to political pressure than foreign judges
- 3. would be difficult to fine unbiased Khmer judges since "almost every Cambodian has had at least one friend or family member killed by the KR (even if judge could remain unbiased despite personal issues, the appearance of impartiality would be negated)"

CCP Position:
Khmer judges should hold a simple majority at each level of trial.

Structure agreed upon:
Khmer judges will hold a simple majority at each level of trial.


C. PROSECUTOR

UN position:
The prosecutor should be non-Khmer.
Rationale:
- since the prosecutor's role is to determine who should/should not be prosecuted, "a Khmer prosecutor would be subject to too much political pressure to function independently and effectively; a non-Khmer prosecutor would be better insulated from political pressure and better able to function independently"

CCP Position:
There should be two prosecutors: one Khmer, one non-Khmer.

Structure agreed upon:
There will be a team of one Khmer and one non-Khmer prosecutor.


OTHER ISSUES (NOT CONTESTED)

A. TEMPORAL JURISDICTION
"the temporal jurisdiction of such a tribunal should be limited to the period of the rule of Democratic Kampuchea, i.e., 17 April 1975 to 7 January 1979. human rights abuses by any parties before or after that period would detract from the unique and extraordinary nature of the crimes committed by the leaders of Democratic Kampuchea."

B. PERSONAL JURISDICTION
"the Prosecutor should confine his or her inquiry to those persons most responsible for the most serious violations of human rights during the reign of Democratic Kampuchea. This would include senior leaders with responsibility over the abuses as well as those at lower levels who are directly implicated in the most serious atrocities. reasons given for this proposal:

1 - we do not believe that prosecutions should attempt to bring to justice all or even most people who committed violations of international or Cambodian law during the relevant period. Such a scenario is, first and foremost, logistically and financially impossible for any sort of tribunal that respects the due process rights of defendants.

2 - whatever one's views about a need for clarity about the events of the past, a reopening of the events through criminal trials on a massive scale would impede the national reconciliation so important for Cambodia and highlighted in resolution 52/135.

3 - the legal questions surrounding the responsibility of many persons at low levels, particularly youthful offenders, are complex and suggest that these persons should not be tried."



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