KR Law Is Wrong, Experts Are Worse

by Bora Touch, Lawyer, Syndey, Australia

On 12 February 2001, the Constitutional Council decided to send the KR Tribunal law back to Parliament, ordering the Parliament to insert a paragraph in Article 3 of the law disallowing the death penalty. The Council's "rationale" was that Article 3 of the draft law re-ratified the 1956 Penal Code. The 1956 Penal Code provided for the death penalty in punishment of certain crimes. This move smacks of delay tactics on the part of people within the government to stall the process of bringing the alleged KR murderers to justice. In fact, there is no need to insert any additional paragraph into the draft law as Article 38 of the KR Tribunal law already generally prohibits the death penalty. Thus, Article 3 of the draft KR Tribunal law does not breach the Constitution. In contrast, adding another paragraph would make the law more confusing and less sophisticated. This is coupled with fairly bad wording and unsophisticated Khmer defining crimes in the draft law.

Some assertions made by those in the legal profession and in persuasive circles of Cambodian civil society concerning this issue have been disturbing and flawed. Dr. Lao Mong Hay and lawyer Sok Samoeun, among others, were quoted as saying that by extending the statute of limitation by 20 years, Article 3 of the draft law breaches the principle of non-retroactivity. Dr. Hay stated that "no civilized nation would accept retroactivity of law" and added that it would breach the Paris Peace Accords, Annex 5. Sok Samoeun agreed. Their analysis is incorrect, however. Extension of the statute of limitation has nothing to do with the principle of non-retroactivity of criminal law. Article 3 only calls for extension of time for prosecution; it does not make any non-crimes then a crime now. Many civilized nations accept extensions of statute of limitations. It is the limitations period that is in force at the time a person is charged and prosecuted, not when a person commits a crime, that is relevant. Nothing here makes a new crime or charge retroactive.

Case in point, under the German Penal Code 1871, crimes such as crimes against humanity and war crimes were punished under crimes such as murder, manslaughter and unlawful deprivation of liberty. The limitations period for these crimes was between 10 and 20 years. By the Act of 9 August 1954, on the accession of the West Germans to the 1948 Genocide Convention, an article was inserted into the Penal Code as special penal provision against genocide, which was not a crime in 1871. Because of the constitutional prohibition of ex post facto criminal laws, the newly inserted genocide article could not have any retroactive effect. To circumvent this barrier, the German Parliament on 26 June 1969 passed a law which provided that crimes based on the new article, i.e. genocide, did "not come under the statute of limitation"; and at the same time and in order to prosecute the Nazi criminals for murder, manslaughter and rape during the Nazi era, the Parliament extended the limitation period for these crimes from 20 to 30 years. As a result of this legislative change, the new limitations period for murder and manslaughter entered into force on 31 December 1979, i.e. 34 years after the fall of the Nazi regime. Because of the change in the limitations period, Nazi war criminals and those guilty of murder or manslaughter during the Nazi regime could be lawfully charged.

Another point that these experts misunderstood is that while sympathy for victims of crime is an important virtue, virtue sometimes has little to do with justice. For Dr. Hay and Sam Oeun to support the "right" of victims and prosecutors to appeal an acquittal verdict is tantamount to advocating Cambodia breach international law, specifically the principle of double jeopardy stipulated in the International Covenant on Civil and Political Rights to which Cambodia is a party. Allowing an appeal of this nature would not promote efficacy or efficiency at the trial level either. It is true that the first instance courts are largely incompetent in Cambodia, but this would not be a way to redress the problem. Double jeopardy should be prohibited regardless of the pain victims may feel in seeing an accused walk free. This principle is designed to ensure that the government does a proper job of prosecution the first time around and does not get a second bite of the apple. We should not forget that justice and liberty for the accused is also important.

Finally, the KR Tribunal law does not give its extraordinary chambers the competence to hear civil suits. Therefore, victims will not be able to commence civil proceedings against former members of the KR. The victims could try to take action in normal Cambodian courts, but they would have a statutory limitations problem: under general Cambodian law the statute of limitations is three to five years for normal civil suits. Unless the law is changed to accommodate civil suits against the KR, the opportunity to bring such action has long passed.

© 2001 Khmer Institute. All rights reserved.