Been Pardoned, But Can Justice Still Stalk Ieng Sary?

by Bora Touch, Lawyer, Syndey, Australia

In addition to lack of due process, the 1979 trial of Ieng Sary and Pol Pot was invalid on the basis that the government installed by the Vietnamese army was neither recognized by international law nor the United Nations. Although the latter’s recognition may not be necessary for the legitimate existence of a government or state, failure by the UN to recognize the Vietnamese government supports the argument that the 1979 trial was not legal or legitimate. The government that was recognized by the international community as the legitimate government of Cambodia was the resistance Coalition Government of Democratic Kampuchea (CGDK). Under international law, therefore, the prosecutor of Ieng Sary should have been the CGDK and not the People’s Revolutionary Council, later known as the People’s Republic of Kampuchea (PRK). This did not occur of course because Sary himself was a high level official in the CGDK. In addition, Vietnam’s aggression upon Cambodia was an international crime that required redress. The 1979 “trial”, in the eyes of the international legal community, was no different from the one held by the “People’s court” in Anlong Veng in 1997. In this latter “trial”, Pol Pot and his clique were convicted of murder. Although the convictions were not related to genocide, the “court’s” decision ruled out sending Pol Pot to face an international tribunal.

Accepting the result of the 1979 trial would be tantamount to accepting the verdict of the Anlong Veng “court”. According to my reading of the Decree-law no.1, the 1979 trial and the conviction were nullified by the 1991 Paris Peace Accords and the 1993 Constitution. Upon ratification of the Accords, everything started afresh: no conviction, thus no 1996 royal pardon (pardon is granted after conviction whereas amnesty is granted before conviction).

On this basis, the royal pardon of Ieng Sary for his 1979 conviction, effected by the 1996 Royal Decree, would have been legitimate only if: (a) it was in the form of a pre-conviction amnesty and (b) the King actually had the constitutional power to grant pre-conviction amnesty. Under French, American and British constitutional traditions and practices, the Presidents and, in the case of the UK, the Cabinet on behalf of the sovereign, have the power to grant both pardon and pre-conviction amnesties. I would argue, however, that this is only French, American and British tradition and the same power has not been imbued onto the King of Cambodia. The Khmer wording of the 1993 Constitution regarding the King’s power to grant amnesty or pardon is ambiguous on this point. The relevant constitutional provision uses the term, “loekaengtoh”, literally meaning to “lift guilt”, implying that the King may only have the power to grant post-conviction pardon. The precise Khmer word for amnesty is nittooskamm. Other nations provide examples where Kings or heads of State may only grant post-conviction pardon.

This does not mean that Cambodia is prohibited from enacting a law expressly providing for pre-conviction amnesties. To date, however, Cambodia does not have a law allowing amnesties. The 1988 PRK Executive Decree on “Pardon of Convicts” was purported to grant pardon only for post-conviction situations and is not operative or legitimate as under the current Constitution the executive branch is not empowered to enact laws; and acts or decrees which had been enacted before the promulgation of the current Constitution and purported to have legal command are not to be inoperative.

Even if the Royal pardon were legitimate, the 1979 “trial”, the genocide which Sary was convicted were not, as Steve Marks argued, the ones defined under the respective conventions (See S. Marks “Elusive Justice for The Victims of the Khmer Rouge”, Journal of International Affairs, Spring 1999, 52 (2) at 691). From this view, there is nothing preventing Sary from being prosecuted for Genocide, Crimes against Humanity and War Crimes in addition to crimes committed under pre-1975 laws (assuming these laws are re-ratified by the current Parliament).

Legitimacy of the 1996 Royal pre-conviction amnesty given to Sary and the constitutionality of the Law on Outlawing the Democratic Kampuchea regime (1994), (“the 1994 Act”) aside, the 1994 Act prohibited the King from giving the KR leaders amnesty. One might argue, as Steve Heder has, that Sary was out of the KR leadership by 1993, thus the amnesty provision of the law did not apply to him. I would argue that Sary was, or at least was presumed to be, a KR leader. The law did not define what would constitute KR “leaders”, but most of us would agree that Sary, even if he split from the KR in 1993, i.e. before the KR Law came into effect, would be taken, presumed and believed to be one of the leaders of the KR rebels before his defection in 1996. It is a fact that Sary was not just a simple soldier. Another argument is that a split in the leadership does not necessarily mean a split from the KR movement in the eyes of the law. Additionally, if one looks at the definition of the 1994 Act, one may or would come to a conclusion that Sary’s 1993-1996 activities constituted crimes under the KR Law.

The definition of “KR” under the 1994 Act could be far reaching if the post-1997 coup “trial” and conviction of Prince Ranariddh and his generals under, inter alia, the 1994 Act has some value in this particular context. This might be helpful in supporting the theory that Sary could not escape his responsibility under the 1994 Act.

In short, the 1996 Royal Decree was not a blanket amnesty as it appears to be and Sary is not shielded by it. What is required is Hun Sen’s political will to allow justice to take its course in relation to Sary.

The King’s involvement in this scenario is ironic. At the time and after Sary was put on “trial” in 1979, the then Prince Sihanouk was also regarded by the new regime as, bratekeriya, a reactionary, an enemy of the new rule. By Decree-law no.2, Sihanouk was “guilty” of the crimes against the Heng Samrin/Hun Sen’s “Revolution” or whatever it was. Until today, King Sihanouk has not been given an amnesty.

Another legally bizarre aspect of Sary’s amnesty was that the Royal Decree was signed by the King before parliamentary approval; but the King insisted, according to his official biographer Julio Jeldres, that two-thirds approval by Parliament was needed before the Decree became effective or public. Contrary to the King’s wish, Prince Ranarriddh revealed the Decree to the ASEAN ambassadors before the Parliament approved it.

First of all, parliamentary approval is not required before a royal decree of this nature becomes effective. Prince Rannariddh’s revelation to the ASEAN ambassadors before the Parliament’s approval did not breach any law – it only breached his father’s wish, which was not based on legal reasoning but political face-saving. What the whole scenario has done is make a mockery of the system of parliamentary representation.

Hun Sen’s statement to the effect that Sary cannot be tried for the same offence(s) is legally baseless. Bringing Sary to justice would not violate the principle of double jeopardy stipulated under the International Covenant on Civil and Political Rights for the following reasons: (a) Because crimes allegedly committed by Sary happened before Cambodia ratified the Covenant and the Covenant does not operate retroactively. (b) None of his rights would be violated by re-trying him because at the 1979 trial he was not acquitted, rather he was convicted and sentenced to death. In theory, Sary’s re-trial could only benefit him as the result of a new trial cannot be any worse than the 1979 one. Re-trials are often ordered in democratic countries if the first trial was considered to be unfair or irregular. In addition, new prosecutions against Sary for crimes defined under the international conventions, as I stated above, are not re-trials, therefore, the issue of double jeopardy would not be applicable. Hun Sen’s statement thus is nothing but an indication that his former boss will not be called to account for his alleged crimes.

An integral element of national reconciliation is accountability for crimes committed. If Sary had nothing to do with atrocities committed by the Khmer Rouge, as he claims, why not let an independent court hear his story? If Sary wants Cambodia to progress, as he claims, why would he not have it progress on the path of the rule of law rather than the rule of impunity? If he wants peace, why would he threaten to bring Cambodia back to civil war every time there is a call for accountability?

© 2001 Khmer Institute. All rights reserved.