Distributed over the Internet
May 18, 2006
FROM NUREMBERG TRIALS TO KHMER ROUGE TRIBUNAL
WHAT LESSON DID WE LEARN?
During World War II, the Allies had been discussing the idea of punishing war criminals since 1943 when U.S. president Franklin D. Roosevelt, British prime minister Winston Churchill, and Soviet premier Joseph Stalin signed the Moscow Declaration promising to hold the Axis powers, particularly Germany, Italy, and Japan, responsible for any atrocities they committed during World War II.
In 1944 Churchill briefly entertained the idea of summarily executing 100 German highest-ranking members of the Third Reich while Stalin proposed to execute 50,000 - 100,000 Staff officers without a trial or legal proceeding of any kind. Stalin’s proposal to execute 50,000 - 100,000 stunned President Roosevelt. Later, the world would know that in the following years after the Soviet victory, Stalin executed several million of people for war crime.
However, by June of 1945, when delegations from the four Allied powers -- the US, Russia, Great Britain and France -- gathered in London at the International Conference of Military Trials, the U.S. representatives firmly believed that the Nazi leaders could not be executed without first being afforded the opportunity to defend themselves in a judicial proceeding, conform to the principles of justice, fairness, and due process.
Under the leadership of Robert H. Jackson, an associate justice of the U.S. Supreme Court, on August 8, 1945, the four Allied powers signed a convention called the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, which set forth the parameters by which the accused would be tried.
The London Agreement also established the International Military Tribunal (IMT), from November 20, 1945 to October 1, 1946 which was a panel of eight judges, two named by each of the four Allied powers. One judge from each country actively presided at trial, and the other four sat on the panel as alternates. The four Allied powers also selected the prosecutors, who agreed to pursue a conviction against the defendants on behalf of the newly formed United Nations.
The IMT would be known later as NUREMBERG TRIBUNAL and would set the standard and norm for any international court to come to judge leaders for their crime against humanity or genocide and had a great influence on the development of international criminal law.
A few years before WWII, Joseph Stalin organized show trials to execute his opponents. Then, when, Stalin appointed Soviet judge General Ion Nikitchenko for the Nuremberg Tribunal, the appointment of that Russian judge to Nuremberg Tribunal raised the same question about the “international standard” of the Nuremberg Court as it was the case of the appointment of Cambodian judges for today, the KHMER ROUGE TRIBUNAL. General Ion Nikitchenko and General Ney Thol had both participated in show trial, the first in show trial of 1936-1938, while the later in 1998-2005. The sole difference was that Ion Nikitchenko was educated while Ney Thol was not.
The IMT made all of its decisions by a majority vote of the four judges. On issues that divided the judges equally, the president of the court, Lord Justice Geoffrey Lawrence from Great Britain, was endowed with the deciding vote. In all other situations, a vote cast by Lawrence carried no greater weight than a vote cast by Soviet judge Ion Nikitchenko, French judge Henri Donnedieu de Vabres, American judge Francis Biddle, or any of the alternates. The IMT's decisions, including any rulings, judgments, or sentences, were final and could not be appealed.
The Super-Majority rule (See Article 4 -- decision making)
It should be noted that we all are not satisfied with the UN-Royal Cambodian Government Agreement relative to the creation of the Khmer Rouge Tribunal (KRTB) because the KRTB put too much power in the hand of incompetent Cambodian judges. But les choses étant ce qu’elles sont (things are as what they are), as said General Charles De Gaulle, we have to cook with what we have on hand.
Any KRTB’s decisions will be by the super-majority vote of the judges. The super-majority was the absolute majority plus one. It was proposed by Senator John Kerry from Massachusetts. In other word, any KRTB’s decision should be approved at least by one international judge appointed by the UN. Therefore, the super-majority is a tool that might be efficient in the hand of the international judge.
It should be remembered that the Clinton administration in the late 1990s had made a big concession to the Royal Cambodian Government for agreeing that Cambodian judges constituted the absolute majority of the panel. It was a very bad decision according to all human right watch groups that worked actively for the creation of that Khmer Rouge Tribunal. The KRTB might be up into international standard if international judges formed the majority of the panel. To reduce that wrong decision of Clinton administration, Senator John Kerry proposed the super-majority decision.
WHAT HAPPEN IF THERE IS A HUNG JURY?
According to the article 4, all KRTB’s decision was made by the super-majority.
Let examine the following case study, just an academic discussion: Suppose that the KRTB put on trial Ieng Sary, the former foreign minister of Democratic Kampuchea for his “Crime” during the Khmer Rouge era from 17 April 1975 to 6 January 1979.
Suppose that Hun Sen government wants: the KRTB Trial Chamber rules that Ieng Sary not guilty.
To reach that verdict “Not guilty”, Ms. Silvia Cartwright (New Zealand) or Mr. Jean-Marc Lavergne (France) should vote the “NOT GUILTY” of Ieng Sary.
Now, suppose that all Cambodian judges vote for NOT Guilty of Ieng Sary while all foreign judges voted for Guilty. Then the panel was deadlocked, unable to come to a final decision. It results a hung jury.
In American justice, the hung jury results in mistrial. If a mistrial is declared, the case is tried again unless the parties settle the case (in a civil case) or the prosecution dismisses the charges or offers a plea bargain (in a criminal case).
For the KRTB, only the article 4 deals with all her ruling. But the article 4 relative to the decision making of the court had no provision to deal with the hung jury.
The case study of Ieng Sary proves it would be impossible to get the KRTB condemn any HUN SEN friends who were responsible of slaughtering of thousand and thousand people without the approval of HUN SEN judges. Subsequently, the international judges had only the power to denounce the non-cooperation of HUN SEN judges, that’s all they can do.
Considering the flagrant weakness of the KRTB, only the political will of the US, the EU, and the UN could lead the KRTB to be up into international standard. It would not easy to work with Hun Sen judges. But the KRTB, with all US, EU and UN squeeze and leadership might still influence Cambodia political future. It is time to teach those Khmer leaders a lesson about what the justice principles, the fairness, and the due process are.
PROSECUTION -- WHAT WAS THE PROSECUTION THEORY?
In Nuremberg Trials, well before the trials began, the prosecutors had to decide whether to rely primarily on documentary evidence or on live witnesses. The decision was taken to depend on documents, a resolution that turned out to be quite correct. Aside from the stupendous logistical task of rounding up the right witnesses in the wilderness of postwar Europe, there was another, more important consideration. Nobody could later accuse a piece of paper of having a poor memory, of perjury, or of biased testimony. However, the decision to rely primarily on paper evidence required the sifting of thousands upon thousands of documents, a colossal job of evaluation and cross-referencing that required months of work by hundreds of people.
The Nuremberg Trial proceeded on a formal indictment, couched in four counts. First, the defendants were accused of participating in a "Nazi master plan," a massive conspiracy to gain "totalitarian control of Germany," to rearm, to conquer others, and in the process to commit war crimes and crimes against humanity.
The second count simply alleged that the defendants did the things they were alleged to have planned under count one.
Count three charged violations of the customs and laws of warfare, including killing civilians, taking hostages, and maltreating prisoners of war.
The fourth and final count charged "crimes against humanity." It incorporated the allegations of count three, but added allegations dealing with the concentration camps and with the persecutions of Jews and other groups of people prior to the war, in Germany, Czechoslovakia and Austria.
The Tribunal convened in Nuremberg in the autumn of 1945, headed by its president, brilliant, articulate Lord Justice Geoffrey Lawrence. Lord Geoffrey led off with a simple, impressive statement of the Tribunal's function, a reminder to everybody concerned to "discharge their duties without fear or favor, in accordance with the sacred principles of law and justice....[It] is the duty of all concerned to see that the Trial in no way departs from those principles and traditions which alone give justice its authority and the place it ought to occupy in the affairs of all civilized states."
The trial lasted about 10 months, the verdicts and sentences being handed down September 30-October 1, 1946. Before it was over, the world learned much about death camps and other horrors of the Thousand-Year Reich. Most of the 21 defendants were sentenced to hang or to long prison terms; several were acquitted. The unprecedented trial was not without controversy, but the turmoil surrounding it was small indeed compared to the death and destruction the world had just witnessed.
Hanoi Archives
But for the Khmer Rouge Trial, the majority of documents came from Hanoi Archives. There were rumors that Hanoi had doctored those archives to use for Hanoi advantage in order to shape the world opinion toward Cambodia. Hanoi had interest in manipulating those archives.
The Nuremberg four counts of indictment were good principles that might work also for the Khmer Rouge Tribunal.
Fairness and Security for the witness and Families Victims
We raise the question of fairness and due process for the defendants, but we must not forget the fairness and security for the family victims and witnesses. The Khmer Rouges in opposition are still heavily armed. The former Khmer Rouge, friends of HUN SEN, who killed thousand and thousand of people are still there and now in HUN SEN government. For these raisons, the victims were not secure. If they denounced those killers, the Khmer Rouges authors of the genocide in opposition and the Khmer Rouges in power in Phnom Penh would take reprisal against any person who dared to denounce them. The witnesses and family victims said: If I denounce the killers by naming names, they will kill me tomorrow. If I keep quiet, at least I live tomorrow.
With the archives manipulated by Hanoi and the witness intimidated, the justice will never be done. So the Tribunal has to strengthen first the system of protection of witness and victims. The KRTB has to set up a program of protection of the witness and the victims who dared to denounce the “killers”. That is the first steps the KRTB must do first.
HOW TO SELECT THE DEFENDANT?
In Nuremberg Trials, the list of the accused was to some extent arbitrary. The defendants represented the major administrative branches of the Third Reich and included prisoners held by each of the four prosecuting nations. Apparently, little attention was paid to the availability of evidence against them. Attention was generally paid to how well known they were and how much power they had wielded. However, Hans Fritzsche, who was held by the Russians, had been a relatively minor official in Josef Goebbels' propaganda ministry but was included, along with Admiral Erich Raeder, to appease the Russians.
Number Criteria. By number. Suppose we select the number criteria. Suppose we select the defendant who was responsible of the slaughtering of at least 5,000 people for example.
Ta Mok was nicknamed “the butcher” because he was accused of killing a lot of people. Suppose that it turns out for example that Ta Mok might kill maybe 5,000 people. So, the KRTB should judge any defendant who “killed” at least five thousand.
Some information stated that there were a dozen of high-ranking officers in current HUN SEN government who were responsible of slaughtering even more people than Ta Mok. Therefore, the KRTB should put those officers in trial too. Sure, it is harder to build the case against those government officers than Ta Mok or Haing Kheng Eav case because they have all the police forces to protect them.
But the justice could be done if the UN, the US and the EU put their political will to make it happen and Cambodian people will sacrifice and support any effort to get justice done.
Baphuon
Reference:
Article 4 -- Decision-making
1. The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:
a. A decision by the Trial Chamber shall require the affirmative vote of at least four judges:
b. A decision by the Supreme Court Chamber shall require the affirmative vote of at least five judges.
2. When there is no unanimity, the decision of the Chamber shall contain the views of the majority and the minority.
In 1944 Churchill briefly entertained the idea of summarily executing 100 German highest-ranking members of the Third Reich while Stalin proposed to execute 50,000 - 100,000 Staff officers without a trial or legal proceeding of any kind. Stalin’s proposal to execute 50,000 - 100,000 stunned President Roosevelt. Later, the world would know that in the following years after the Soviet victory, Stalin executed several million of people for war crime.
However, by June of 1945, when delegations from the four Allied powers -- the US, Russia, Great Britain and France -- gathered in London at the International Conference of Military Trials, the U.S. representatives firmly believed that the Nazi leaders could not be executed without first being afforded the opportunity to defend themselves in a judicial proceeding, conform to the principles of justice, fairness, and due process.
Under the leadership of Robert H. Jackson, an associate justice of the U.S. Supreme Court, on August 8, 1945, the four Allied powers signed a convention called the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, which set forth the parameters by which the accused would be tried.
The London Agreement also established the International Military Tribunal (IMT), from November 20, 1945 to October 1, 1946 which was a panel of eight judges, two named by each of the four Allied powers. One judge from each country actively presided at trial, and the other four sat on the panel as alternates. The four Allied powers also selected the prosecutors, who agreed to pursue a conviction against the defendants on behalf of the newly formed United Nations.
The IMT would be known later as NUREMBERG TRIBUNAL and would set the standard and norm for any international court to come to judge leaders for their crime against humanity or genocide and had a great influence on the development of international criminal law.
A few years before WWII, Joseph Stalin organized show trials to execute his opponents. Then, when, Stalin appointed Soviet judge General Ion Nikitchenko for the Nuremberg Tribunal, the appointment of that Russian judge to Nuremberg Tribunal raised the same question about the “international standard” of the Nuremberg Court as it was the case of the appointment of Cambodian judges for today, the KHMER ROUGE TRIBUNAL. General Ion Nikitchenko and General Ney Thol had both participated in show trial, the first in show trial of 1936-1938, while the later in 1998-2005. The sole difference was that Ion Nikitchenko was educated while Ney Thol was not.
The IMT made all of its decisions by a majority vote of the four judges. On issues that divided the judges equally, the president of the court, Lord Justice Geoffrey Lawrence from Great Britain, was endowed with the deciding vote. In all other situations, a vote cast by Lawrence carried no greater weight than a vote cast by Soviet judge Ion Nikitchenko, French judge Henri Donnedieu de Vabres, American judge Francis Biddle, or any of the alternates. The IMT's decisions, including any rulings, judgments, or sentences, were final and could not be appealed.
The Super-Majority rule (See Article 4 -- decision making)
It should be noted that we all are not satisfied with the UN-Royal Cambodian Government Agreement relative to the creation of the Khmer Rouge Tribunal (KRTB) because the KRTB put too much power in the hand of incompetent Cambodian judges. But les choses étant ce qu’elles sont (things are as what they are), as said General Charles De Gaulle, we have to cook with what we have on hand.
Any KRTB’s decisions will be by the super-majority vote of the judges. The super-majority was the absolute majority plus one. It was proposed by Senator John Kerry from Massachusetts. In other word, any KRTB’s decision should be approved at least by one international judge appointed by the UN. Therefore, the super-majority is a tool that might be efficient in the hand of the international judge.
It should be remembered that the Clinton administration in the late 1990s had made a big concession to the Royal Cambodian Government for agreeing that Cambodian judges constituted the absolute majority of the panel. It was a very bad decision according to all human right watch groups that worked actively for the creation of that Khmer Rouge Tribunal. The KRTB might be up into international standard if international judges formed the majority of the panel. To reduce that wrong decision of Clinton administration, Senator John Kerry proposed the super-majority decision.
WHAT HAPPEN IF THERE IS A HUNG JURY?
According to the article 4, all KRTB’s decision was made by the super-majority.
Let examine the following case study, just an academic discussion: Suppose that the KRTB put on trial Ieng Sary, the former foreign minister of Democratic Kampuchea for his “Crime” during the Khmer Rouge era from 17 April 1975 to 6 January 1979.
Suppose that Hun Sen government wants: the KRTB Trial Chamber rules that Ieng Sary not guilty.
To reach that verdict “Not guilty”, Ms. Silvia Cartwright (New Zealand) or Mr. Jean-Marc Lavergne (France) should vote the “NOT GUILTY” of Ieng Sary.
Now, suppose that all Cambodian judges vote for NOT Guilty of Ieng Sary while all foreign judges voted for Guilty. Then the panel was deadlocked, unable to come to a final decision. It results a hung jury.
In American justice, the hung jury results in mistrial. If a mistrial is declared, the case is tried again unless the parties settle the case (in a civil case) or the prosecution dismisses the charges or offers a plea bargain (in a criminal case).
For the KRTB, only the article 4 deals with all her ruling. But the article 4 relative to the decision making of the court had no provision to deal with the hung jury.
The case study of Ieng Sary proves it would be impossible to get the KRTB condemn any HUN SEN friends who were responsible of slaughtering of thousand and thousand people without the approval of HUN SEN judges. Subsequently, the international judges had only the power to denounce the non-cooperation of HUN SEN judges, that’s all they can do.
Considering the flagrant weakness of the KRTB, only the political will of the US, the EU, and the UN could lead the KRTB to be up into international standard. It would not easy to work with Hun Sen judges. But the KRTB, with all US, EU and UN squeeze and leadership might still influence Cambodia political future. It is time to teach those Khmer leaders a lesson about what the justice principles, the fairness, and the due process are.
PROSECUTION -- WHAT WAS THE PROSECUTION THEORY?
In Nuremberg Trials, well before the trials began, the prosecutors had to decide whether to rely primarily on documentary evidence or on live witnesses. The decision was taken to depend on documents, a resolution that turned out to be quite correct. Aside from the stupendous logistical task of rounding up the right witnesses in the wilderness of postwar Europe, there was another, more important consideration. Nobody could later accuse a piece of paper of having a poor memory, of perjury, or of biased testimony. However, the decision to rely primarily on paper evidence required the sifting of thousands upon thousands of documents, a colossal job of evaluation and cross-referencing that required months of work by hundreds of people.
The Nuremberg Trial proceeded on a formal indictment, couched in four counts. First, the defendants were accused of participating in a "Nazi master plan," a massive conspiracy to gain "totalitarian control of Germany," to rearm, to conquer others, and in the process to commit war crimes and crimes against humanity.
The second count simply alleged that the defendants did the things they were alleged to have planned under count one.
Count three charged violations of the customs and laws of warfare, including killing civilians, taking hostages, and maltreating prisoners of war.
The fourth and final count charged "crimes against humanity." It incorporated the allegations of count three, but added allegations dealing with the concentration camps and with the persecutions of Jews and other groups of people prior to the war, in Germany, Czechoslovakia and Austria.
The Tribunal convened in Nuremberg in the autumn of 1945, headed by its president, brilliant, articulate Lord Justice Geoffrey Lawrence. Lord Geoffrey led off with a simple, impressive statement of the Tribunal's function, a reminder to everybody concerned to "discharge their duties without fear or favor, in accordance with the sacred principles of law and justice....[It] is the duty of all concerned to see that the Trial in no way departs from those principles and traditions which alone give justice its authority and the place it ought to occupy in the affairs of all civilized states."
The trial lasted about 10 months, the verdicts and sentences being handed down September 30-October 1, 1946. Before it was over, the world learned much about death camps and other horrors of the Thousand-Year Reich. Most of the 21 defendants were sentenced to hang or to long prison terms; several were acquitted. The unprecedented trial was not without controversy, but the turmoil surrounding it was small indeed compared to the death and destruction the world had just witnessed.
Hanoi Archives
But for the Khmer Rouge Trial, the majority of documents came from Hanoi Archives. There were rumors that Hanoi had doctored those archives to use for Hanoi advantage in order to shape the world opinion toward Cambodia. Hanoi had interest in manipulating those archives.
The Nuremberg four counts of indictment were good principles that might work also for the Khmer Rouge Tribunal.
Fairness and Security for the witness and Families Victims
We raise the question of fairness and due process for the defendants, but we must not forget the fairness and security for the family victims and witnesses. The Khmer Rouges in opposition are still heavily armed. The former Khmer Rouge, friends of HUN SEN, who killed thousand and thousand of people are still there and now in HUN SEN government. For these raisons, the victims were not secure. If they denounced those killers, the Khmer Rouges authors of the genocide in opposition and the Khmer Rouges in power in Phnom Penh would take reprisal against any person who dared to denounce them. The witnesses and family victims said: If I denounce the killers by naming names, they will kill me tomorrow. If I keep quiet, at least I live tomorrow.
With the archives manipulated by Hanoi and the witness intimidated, the justice will never be done. So the Tribunal has to strengthen first the system of protection of witness and victims. The KRTB has to set up a program of protection of the witness and the victims who dared to denounce the “killers”. That is the first steps the KRTB must do first.
HOW TO SELECT THE DEFENDANT?
In Nuremberg Trials, the list of the accused was to some extent arbitrary. The defendants represented the major administrative branches of the Third Reich and included prisoners held by each of the four prosecuting nations. Apparently, little attention was paid to the availability of evidence against them. Attention was generally paid to how well known they were and how much power they had wielded. However, Hans Fritzsche, who was held by the Russians, had been a relatively minor official in Josef Goebbels' propaganda ministry but was included, along with Admiral Erich Raeder, to appease the Russians.
Number Criteria. By number. Suppose we select the number criteria. Suppose we select the defendant who was responsible of the slaughtering of at least 5,000 people for example.
Ta Mok was nicknamed “the butcher” because he was accused of killing a lot of people. Suppose that it turns out for example that Ta Mok might kill maybe 5,000 people. So, the KRTB should judge any defendant who “killed” at least five thousand.
Some information stated that there were a dozen of high-ranking officers in current HUN SEN government who were responsible of slaughtering even more people than Ta Mok. Therefore, the KRTB should put those officers in trial too. Sure, it is harder to build the case against those government officers than Ta Mok or Haing Kheng Eav case because they have all the police forces to protect them.
But the justice could be done if the UN, the US and the EU put their political will to make it happen and Cambodian people will sacrifice and support any effort to get justice done.
Baphuon
Reference:
Article 4 -- Decision-making
1. The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:
a. A decision by the Trial Chamber shall require the affirmative vote of at least four judges:
b. A decision by the Supreme Court Chamber shall require the affirmative vote of at least five judges.
2. When there is no unanimity, the decision of the Chamber shall contain the views of the majority and the minority.
1 comment:
We learn nothing!.. i'd learned already between 75 -79... no one will come out and say i'd made a mistake!..or he / or she or they or one group of them the murderers, or reponsible for the 2 million innocents who've lost their life!..,
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