HONG KONG, Jun. 6By LAO MONG HAY
Posted on UPI Asia Online
Column: Rule by Fear
It is nearly 10 years since the Cambodian government requested U.N. assistance in organizing the trials of Khmer Rouge officials accused of some 1.7 million deaths during their rule from 1975 to 1979. This week, the 29 judges and prosecutors appointed for the trial are holding their second plenary session to review and adopt internal rules for the conduct of that trial. This process has been dragging on for so long, with so many delays, that people are still wary about the outcome of the plenary session, although optimism prevails among the jurists.
Right from the start the Cambodian request for an international trial met with a negative response from China, the strongest supporter of the Khmer Rouge until the early 1990s. For China the trial was Cambodia's "internal affair," and other countries should not interfere. After requesting U.N. assistance in 1997, the Cambodian government later changed its mind and opted for a Cambodian trial, despite its lack of resources and expertise.
While still needing U.N. assistance to legitimize the trial, the Cambodian government forged ahead with the enactment of a law on a Cambodian trial, while continuing talks with the United Nations aimed at setting up a credible tribunal. In May 2001 Prime Minister Hun Sen -- known for his dislike of the United Nations for its continued recognition of the Khmer Rouge regime from 1979 to 1991, rather than his own Vietnamese installed government -- announced that, barring "further disturbances" from the United Nations, the trials could take place by the end of 2001. That year came to an end with no Khmer Rouge tribunal in sight.
The United Nations continued to offer cooperation and assistance in setting up a tribunal that would adhere to international norms and standards, which Cambodian courts -- under executive control and lacking independence, competence and impartiality -- could not ensure. With diplomatic support from concerned countries, finally in July 2003 the United Nations secured a commitment from Phnom Penh to cooperate on a trial.
A tribunal was then established to conduct the trial according to Cambodian law, supplemented by international law and practices. It is a hybrid tribunal with two chambers, a trial chamber and a Supreme Court chamber, with Cambodian judges in the majority in both. Decisions by both chambers are made by a "super majority," which includes at least one foreign judge on top of all Cambodian judges.
The tribunal has two co-prosecutors and two co-investigating judges, one of whom in both cases is Cambodian and the other foreign. In case of disagreement between the co- prosecutors, the prosecution will proceed unless one of them requests the settlement of their differences within 30 days by a pretrial chamber. In case of disagreement between the judges, the investigation will proceed unless one of them requests the settlement of their difference within 30 days by the same pretrial chamber. This chamber is composed of five judges, of whom three are Cambodian, one of whom is president, and two are foreign judges. Decisions of the chamber are made by four judges, and there is no appeal against their decisions. The United Nations nominates foreign judges and prosecutors who then, like their Cambodian counterparts, are appointed by the Supreme Council of the Magistracy.
In July 2006, three years after the signing of the agreement between the United Nations and Cambodia and nine years after the Cambodian government's request for assistance with the trial, 29 judges and prosecutors -- 17 Cambodian and the rest foreign -- were sworn in. These judges immediately set out to draft the internal rules for their tribunal. They held a plenary session in November 2006 to review these internal rules but failed to adopt them when Cambodian judges and prosecutors, unfamiliar with and not trained in international criminal justice, towed the government line of upholding the sovereignty of Cambodian law and objected to a number of elements of international law and practices incorporated in the internal rules.
The review of the internal rules by the drafting committee continued, but the process was stalled when the Cambodian Bar Association raised strong opposition to the creation of a defense support unit attached to the tribunal, by insisting that the Bar and not the defense support unit was responsible for the registration of foreign lawyers and by imposing on these lawyers exorbitant fees amounting altogether to US$4900 per year. The international judges disagreed with these exorbitant fees and canceled the plenary session on the internal rules scheduled for April 2007. The Bar in the end decided to lower the fees for foreign lawyers to US$500. This enabled the resumption of the review and adoption of the internal rules.
The process to organize the trial of the Khmer Rouge has now dragged on for 10 years, while the Khmer Rouge leaders are aging. Top leader Pol Pot died in April 1998, and Ta Mok, another Khmer Rouge leader, died in July 2006.
Now it seems that all major hurdles have been overcome, and the judges and prosecutors have actually met in a generally optimistic mood. By the end of this plenary session they should adopt the internal rules that will ensure the trial will be held in accordance with international norms and standards. Hopefully they will then conduct the trial without any further delay, and end the Cambodian people's agonizingly long wait for justice.
--
(Dr. Lao Mong Hay is currently a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and received the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)
Right from the start the Cambodian request for an international trial met with a negative response from China, the strongest supporter of the Khmer Rouge until the early 1990s. For China the trial was Cambodia's "internal affair," and other countries should not interfere. After requesting U.N. assistance in 1997, the Cambodian government later changed its mind and opted for a Cambodian trial, despite its lack of resources and expertise.
While still needing U.N. assistance to legitimize the trial, the Cambodian government forged ahead with the enactment of a law on a Cambodian trial, while continuing talks with the United Nations aimed at setting up a credible tribunal. In May 2001 Prime Minister Hun Sen -- known for his dislike of the United Nations for its continued recognition of the Khmer Rouge regime from 1979 to 1991, rather than his own Vietnamese installed government -- announced that, barring "further disturbances" from the United Nations, the trials could take place by the end of 2001. That year came to an end with no Khmer Rouge tribunal in sight.
The United Nations continued to offer cooperation and assistance in setting up a tribunal that would adhere to international norms and standards, which Cambodian courts -- under executive control and lacking independence, competence and impartiality -- could not ensure. With diplomatic support from concerned countries, finally in July 2003 the United Nations secured a commitment from Phnom Penh to cooperate on a trial.
A tribunal was then established to conduct the trial according to Cambodian law, supplemented by international law and practices. It is a hybrid tribunal with two chambers, a trial chamber and a Supreme Court chamber, with Cambodian judges in the majority in both. Decisions by both chambers are made by a "super majority," which includes at least one foreign judge on top of all Cambodian judges.
The tribunal has two co-prosecutors and two co-investigating judges, one of whom in both cases is Cambodian and the other foreign. In case of disagreement between the co- prosecutors, the prosecution will proceed unless one of them requests the settlement of their differences within 30 days by a pretrial chamber. In case of disagreement between the judges, the investigation will proceed unless one of them requests the settlement of their difference within 30 days by the same pretrial chamber. This chamber is composed of five judges, of whom three are Cambodian, one of whom is president, and two are foreign judges. Decisions of the chamber are made by four judges, and there is no appeal against their decisions. The United Nations nominates foreign judges and prosecutors who then, like their Cambodian counterparts, are appointed by the Supreme Council of the Magistracy.
In July 2006, three years after the signing of the agreement between the United Nations and Cambodia and nine years after the Cambodian government's request for assistance with the trial, 29 judges and prosecutors -- 17 Cambodian and the rest foreign -- were sworn in. These judges immediately set out to draft the internal rules for their tribunal. They held a plenary session in November 2006 to review these internal rules but failed to adopt them when Cambodian judges and prosecutors, unfamiliar with and not trained in international criminal justice, towed the government line of upholding the sovereignty of Cambodian law and objected to a number of elements of international law and practices incorporated in the internal rules.
The review of the internal rules by the drafting committee continued, but the process was stalled when the Cambodian Bar Association raised strong opposition to the creation of a defense support unit attached to the tribunal, by insisting that the Bar and not the defense support unit was responsible for the registration of foreign lawyers and by imposing on these lawyers exorbitant fees amounting altogether to US$4900 per year. The international judges disagreed with these exorbitant fees and canceled the plenary session on the internal rules scheduled for April 2007. The Bar in the end decided to lower the fees for foreign lawyers to US$500. This enabled the resumption of the review and adoption of the internal rules.
The process to organize the trial of the Khmer Rouge has now dragged on for 10 years, while the Khmer Rouge leaders are aging. Top leader Pol Pot died in April 1998, and Ta Mok, another Khmer Rouge leader, died in July 2006.
Now it seems that all major hurdles have been overcome, and the judges and prosecutors have actually met in a generally optimistic mood. By the end of this plenary session they should adopt the internal rules that will ensure the trial will be held in accordance with international norms and standards. Hopefully they will then conduct the trial without any further delay, and end the Cambodian people's agonizingly long wait for justice.
--
(Dr. Lao Mong Hay is currently a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and received the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)
5 comments:
I genuinely thank you Dr. Lao Mong Hay for his dedication and relentlessly hardwork in pursuing justice for Khmer people and Khmer nation.
We are proud of you and thank for your contribution!
PSK
To hope for criminals to hold the rule of law, to hope for a criminal s against humanity to find justice for humanity is just a wish.......
Cambodian can not have justice now let alone seeking justice for the past ... I gave up ages agos on that it will never happen and it will never be justice.... byt the time this thing kicked off they are all dead.
To be able to condemm the dead of the criminals is better nothing.
" Remember Battambang Samay Lok Machas?" or " Battambang during the Era of Lok Machas "?
Few knew how cruelt and nasty the method of punishment of the slaves enforcing by Lok Machas or Master and his staff. Then, here we are in the middle of The Pol Pot Era. It was worse than anyone can ever imagine.
Let it slipping by again? Think, again my friend. It will only take one generation or two to forget and repeat itself. Please don't let this unfortunate story happen to your children and grandchildren by thinking that it's o.k to let it go. You are making a big big mistake and for us to follow you? you are telling to the wrong person.
What the fuck? No Appeal?
What type of justice is this. They
always crying to us about not
providing appeals to criminal,
and they don't have no appeal for
the accuseds, hahaha, LOL, hahaha.
What is a true hypocrit?
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