Will It be a Trial or Propaganda?

by Bora Touch, Lawyer, Syndey, Australia

The tension between the UN's desire for an international tribunal and the Royal Government's desire for an internal tribunal to try former KR members for their alleged crimes appears to have ended with the triumph of the Royal Government. The Royal Government based its preference for an internal tribunal on its unfounded "sovereignty" argument. Instead of opting out of discussions on the tribunal when the Royal Government refused to adopt its model, the UN chose to collude with the Hun Sen Government in what I believe to be a completely foreseeable mockery of justice. It has been obvious to most people that the Royal Government has been maneuvering to avoid bringing the KR to justice, thus demonstrating a lack of political will. Yet the UN has opted to continue to go along with the Hun Sen government knowing that lack of political will is the integral element to a failure of justice.

The UN's motives are unclear but there is some evidence suggesting that the UN is following the United States in its attempt since 1991 to build a relationship with a new, presentable Hun Sen. For the US, a relationship would facilitate its ability to do business with Hun Sen and his private group. Once a tribunal is established in Cambodia, it will not be about justice but politics. The courts will go through the motions just as was done during the show trials of Ieng Sary and Pol Pot during the Vietnamese-installed government immediately after the demise of the Khmer Rouge regime.

The following, to me, demonstrates that the UN was never serious about establishing a tribunal to ensure, once and for all, that Khmer Rouge criminals are brought to justice:

1. The Draft Law: The UN made no attempt to draft an alternative law - it completely relied on Cambodia's draft; it made no attempt to have a Cambodian law specialist participate in the negotiations; and the negotiations over the draft law were not transparent, therefore discouraging public debate.

2. Security of Suspects: Under the Cambodian proposal, the security of suspects, witnesses and experts is left in the hands of Hun Sen's police. As far as I am aware, this was not challenged by the UN.

3. Conduct of Trials: Suspects who are arrested and indicted are to be to "brought to trial according to the existing procedures in force". The law that covers this process is the State of Cambodia's Law on Criminal Procedure 1993. This law does not have a single reference to the role of defense lawyers in the trial process. Worse, the law does not even have legal force as it was made by an SOC faction that had no power to make the law (after 23 October 1991 the law-making power was given to the Supreme National Council).
      The brutal treatment of suspects by Cambodian police is well known. It is not an exaggeration to say that most of the arrestees undergo police torture or coercion, either physical or mental, before being brought to appear before a prosecutor or a court that in turn continue to harass the accused and treat them with contempt. The French confessional civil law system, complete with interrogating judges, serves to extract confessions rather than to ensure justice in Cambodia. The UNTAC law on torture by police is inadequate and, as pointed out by Mark Plunkett, the UNTAC Special Prosecutor, "an offence of assault was not punishable unless it resulted in permanent injury or an injury lasting six month". Far different from countries like Australia where intentional spitting constitutes a punishable assault. In my experience, the Cambodian police are skilled enough to make sure that their physical coercion of suspects will not result in permanent injury or an injury lasting six months. Further, the system does nothing to discourage coercive tactics on behalf of the police even if the tactics do not constitute criminal offences.

4. Judges' Job Security: This is the mainstay of the independence of a country's judiciary yet Cambodia does not have a law on the status of judges which would guarantee the independence of the country's judiciary. Although the draft law states both judges and prosecutors are independent of the government during the KR trials, it is not guaranteed that they will retain their judgeships or jobs following the trials if they do not render judgments that are supported by the government. Even more disconcerting, nothing in the draft law prevents the Supreme Council of the Magistracy (SCM) from sacking judges at will. Article 10(2) of the draft KR Law states that all judges are independent in performing their functions and must not accept or seek any instruction from any source; but the draft law fails to provide for punishments in case these incidents happen and does not provide for penalties in the case of political interference. Thus, this provision in reality has little teeth.
      Worse, the draft law provides that all judges and prosecutors are to be appointed by the SCM which is effectively an arm of the CPP, with Chea Sim, the president of the CPP and Senate, as its president. The SCM organic law itself does not provide for job security for its members; thus, to remain in their jobs judges must listen and obey their political patrons. It is not an exaggeration to say that both the individual members and the legal system of Cambodia are held hostages by the CPP. Chea Sim was a replacement of Dith Munti, an influential member of the CPP's Central Committee, the Standing Committee and the Permanent Committee and who is now the Chief Justice of the Supreme Court. Ly Vuoch Leang, a CPP Central Committee candidate, is also a member of the SCM who is simultaneously the Chief of Appeal Court. Although under SCM Act, Sim's involvement in SCM is not illegal, the Act allowing a person of Sim's nature into this judicial disciplinary body is in violation of the constitutional principle of separation of powers. Thus, both the SCM Act and Sim's involvement are unconstitutional.

5. Lack of Evidence Law: There is no evidence act in Cambodia. In my experience as a public defender in Cambodia, most Cambodian judges do not have any education about evidence law. Despite the constitutional prohibition against forced confessions, the police practice of torturing or coercing suspects or accused persons to extract confession is rife. In most, if not all, cases, the judges admit such extracted or illegal confessions without questioning the way the confession was obtained. In some incidents, as pointed out the Report of the Special Representative of the for Human Rights in Cambodia (1997), the courts even suppress a defendant's testimony of police brutality by screaming at the accused that the court is not a place to redress police misconduct. In such a case, the forced confession is admitted but evidence of the police coercion is not. Regarding this issue of police brutality, the current transitional law was deliberately drafted to be on the side of the police: Under this law, an assault by police against suspects/detainees is not a crime so long as it does not result in a permanent injury or injury lasting six months. Thus, even if an attempt to punish the police for coercive or abusive behavior was made, it would be futile unless the law were changed. One way to mitigate this problem within the current legal framework would be to exclude coerced confessions, thereby teaching the police that their abusive tactics will not be fruitful. As stated above however, this is not likely to happen.

6. Constitutional Review Power: The draft law is silent on which body will have constitutional review power. Therefore, the existing Constitutional Council, a heavily politicized body will have the jurisdiction to review constitutional issues (six out of nine members are CPP political appointees and every decision is made by majority of five members, thereby easily excluding the three non-CPP members). This is another significant point which, in my view, should have been contested by the UN.

7. Lack of Permissible Defence Theories: A fundamental flaw of the law is that it does not provide for any defences. In fact, all current laws including the so-called Transitional Criminal Law or UNTAC law do not permit basic criminal defences. Under the UNTAC law, self-defence, insanity and other affirmative defences do not constitute defences but rather mitigating circumstances.

8. Suspects to be Prosecuted: Another disappointment is the UN's obvious collaboration with Hun Sen and his government regarding who is to be brought before the tribunal. To limit the scope of prosecution, the UN added the word "most" to the draft: that is, the purpose of the law is now to try "senior leaders of DK and those most responsible for the crimes". The reason the UN added this word was, according to the note to the draft, "such a result is obviously not intended by the government". The UN delegation has therefore added the word "most" as an illustration of how one could limit the scope of personal jurisdiction in a reasonable way. If other solutions are contemplated to achieve the same result, the UN is of course prepared to examine them. At the express request of HE Sok An, the UN delegation examined such solutions while emphasizing that the formulation of this article is a political decision to be taken at the national level. The note goes on to say: "With this proviso, we suggest that an alternative text could be, for example, 'and the most notorious perpetrators of the crimes and serious violations, etc'".
      With respect to this aspect of the trial, a noted scholar of Cambodia, Steve Heder, rightly pointed out:"[H]ere it is made obvious that the UN is complicit with the Royal Government in seeking a formulation that is politically acceptable in that it guarantees impunity to current members of the CPP. And that this decision is to be made on political grounds, although the justification of practicality is tacked on as a facilitating argument. Notoriety, of course, is a completely absurd legal category. It reflects propaganda, not facts, politics, not justice. Notoriety arises not from a judicial process, but from political propaganda. ...'senior leaders' and 'notorious perpetrators' are formulations which exclude those who were not publicly demonized by the Vietnamese, the People's Republic of Kampuchea and the international media. What is self-incriminatingly tell-tale here is the studious avoidance of the sensible, straightforward, politically neutral formulation put forward by the experts: 'those most responsible for the most serious violations'. The impression is left that this obvious solution is unacceptable precisely because it might include some CPP members and exclude some 'senior leaders' and 'notorious perpetrators' who committed the political sins of the opposing the PRK, the UN, the US and so on, and are therefore political fair game, regardless of whether they are in fact the worse criminals of the DK era".
      Some evidence suggests that crimes committed by Ieng Sary and Pol Pot may be no worse than crimes committed by Nuon Chea and Son Sen, the Minister of Defense. Why were not the latter two put on trial in 1979? It is likely that the reason the trio were not tried (or effectively demonized) by the Vietnamese/Heng Samrin/Hun Sen regime was because Vietnam regarded Nuon Chea, Son Sen and Sao Pheum as "our men", especially Nuon Chea, who Le Daun, the then Secretary-General of the Vietnamese Communist Party, described to the Soviet Ambassador to Vietnam in early 1976 as "our man and my personal friend". (Whether or not Le Daun's statement was an invention designed to incite internal purge thus applying the typical Vietnamese divide-and-conquer tactic is a different matter.) The important issue is that only two people were demonized - Pol Pot and Ieng Sary. Another example is that Ta Mok's nickname, "the Butcher," was invented by the western media.

© 2001 Khmer Institute. All rights reserved.