Sunday, June 26, 2011

Amnesty, Double Jeopardy on Agenda for Tribunal Hearing

This combo shows file photos of the four top surviving leaders of the Khmer Rouge regime from left to right: Nuon Chea, the group's ideologist; former head of state and public face of the regime, Khieu Samphan, former Foreign Minister Ieng Sary; and his wife Ieng Thirith, ex-minister for social affairs (Photo: AP file)

Sunday, 26 June 2011
Sok Khemara, VOA Khmer | Washington, DC
“The court has enough competency and enough of a role in Ieng Sary’s case over genocidal crimes, and other crimes…to try him under its jurisdiction.”
In the days leading into the trial of four Khmer Rouge leaders, legal analysts say there are few if any past hindrances to the prosecution that would prevent full proceedings.

The trial for Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith officially begins Monday, when the four senior regime leaders will appear before the Trial Chamber of the UN-backed Khmer Rouge tribunal in a preliminary hearing.

The hearing will tackle some of the tougher questions for moving the proceedings forward for the accused, who are charged with a raft of atrocity crimes, including genocide, in what is expected to be a long, complicated trial, known as Case 002.

In the time since all four were arrested in 2007, defense lawyers have argued that amnesties promised by the government in the late 1990s, which helped dissolve the last of the Khmer Rouge after decades of civil war, would be relevant.


Likewise, they have argued that a trial of Khmer Rogue leaders staged by the Vietnamese occupation in 1979 means that Ieng Sary will be charged twice for the same crime, which is barred under a legal concept called double jeopardy.

Ieng Sary, the former foreign minister for the Khmer Rouge, led a breakaway of 20,000 troops in exchange for a government amnesty in 1996. Nuon Chea, the regime’s ideologue; Khieu Samphan, its nominal head; and Ieng Thirith, the social affairs minister and wife of Ieng Sary, followed him.

All four lived freely among ordinary Cambodians for more than a decade before they were arrested and put in the custody of the tribunal.

However, legal analysts said in recent interviews neither the amnesty, the Vietnamese trial nor other obstructions are likely to impede the prosecution.

None of the Case 002 defendants should be able to use the 1996 amnesty as a successful defense,” John Ciorciari, a professor of public policy at the University of Michigan, told VOA Khmer in an e-mail.

Nor will Ieng Sary be shielded from double jeopardy after the Vietnamese trials, which found him guilty in absentia for war crimes but were widely considered illegitimate, Ciorciari said.

“Firstly, Ieng Sary is being charged for some crimes that were not a part of the 1979 proceedings,” he wrote. “Second, where a trial was highly defective—like the sham trial of 1979—most leading legal systems allow offenses to be tried again. Third, a major aim of the double jeopardy principle is to prevent defendants from being punished twice for the same offense.”

“The text of the amnesty agreement quite specifically granted Ieng Sary immunity from prosecution under a 1994 law outlawing the Khmer Rouge organization,” he continued. “It says nothing about barring prosecution for the grave international crimes that will be addressed in Case 002.”

Still, the rights of defendants must also be protected, legal analysts told VOA Khmer.

“It is why the good work of the defense sections at the tribunal is so critical,” said Jeffrey Brand, dean of the University of San Francisco’s law school. “We need to candidly confront the reasons that we reject a particular prior proceeding or political deal if an accused is going to be tried.”

Clair Duffy, a tribunal monitor for the Open Society Justice Initiative, said the court’s Pre-Trial Chamber has already ruled out the questions of double jeopardy and the amnesty.

“While the Pre-Trial Chamber’s position isn’t determinative of the issue, the reasoning considers all of the arguments which are likely to be raised by Ieng Sary again in the initial hearing,” she said. “One thing that can be said is that courts around the world exercising international criminal jurisdiction are always likely to read down any amnesty provisions because of the nature of the crimes under their jurisdiction.”

Meanwhile, national and international lawyers have said they are skeptical about the interpretation of the laws governing the tribunal, which was established under Cambodian courts and law. This could allow arguments by the defendants regarding the amnesty or double jeopardy, they said.

Sok Sam Oeun, head of the Cambodian Defenders project, said a good court model that follows the proper interpretation of the laws will be more important to Cambodia than the prosecution of the accused.

“We want the court to legally adjudicate, to provide a good example for Cambodia,” he said. “Essentially, how is the court going to interpret [the law], on a legal and rational basis, or not? If they reasonably interpret, then we can accept it.”

Tribunal spokesman Huy Vannak said the court will have ample jurisdiction over Ieng Sary’s case and will not be hindered by the double jeopardy question. However, he said these questions will be discussed in the initial hearing that starts Monday.

“The court has enough competency and enough of a role in Ieng Sary’s case over genocidal crimes, and other crimes…to try him under its jurisdiction,” he said.

The tribunal has also taken criticism for a lack of independence, following the refusal of senior government officials to testify before judges, as well the public opposition to further indictments by Prime Minister Hun Sen and others.

That criticism has been particularly sharp in recent weeks, following the hasty conclusion of a third case, yet to be tried, by investigating judges.

However, the University of Michigan’s Ciorciari said it is “unlikely” members of the government have exerted pressure to prevent Case 002 from going forward.

“The Cambodian judges at the Pre-Trial Chamber did not appear to be under pressure to support the double jeopardy or amnesty defenses,” he said.

On the other hand, Peter Maguire, a law professor and author of a book on the Cambodian genocide, said he doubts the tribunal will end in acquittal of the accused.

“It is unlikely to me that the Cambodian government would waste this much time and money,” he said, “only to set these high-profile defendants free.”

7 comments:

Anonymous said...

these crooks, i bet when they were young, think they were on top of the world, breaking all the khmer law and the world law in the book. now the law is catching up with them! i hope they all will rot in prison for the rest of their remaining lives, really!

Anonymous said...

these KR leaders were evil, full of hatred, revengeful and blinded by their narcissism nature. do not let cambodia have this kind of insane people as leaders again! god bless cambodia.

Anonymous said...

I can't see anything those four people can do to pay back for what they did even we chop them up into pieces because the crimes they commited were toooo big .

Anonymous said...

It is obvious in hindsight to see how the crimes of such proportion could take place in Cambodia.

Extremities have no place anywhere under the sky.

The KR leaders never preached reconciliation and never understood the concept of unity among the very people they claimed to defend and help to prosper.

They were full of revenges and created hatred in the mind of the peasants against the city people forgetting that those who then lived in the cities were once lived in the countryside. These top leaders had been themselves in Phnom Penh living and enjoying a city life before they went to the jungle. Certainly they are hypocrites!

They also created division among Cambodians using ethnicity as a mean and physical colors and characteristics as a model to decide allegiance to the state.

They truly and insanely believed that they could build Cambodia from the pure Cambodian race, whatever that was supposed to be.

They themselves defined physically what Cambodians should look like and those that did not fit physically in that model they had insanely created were automatically considered not good Cambodians and for that reason were prone to becoming traitors to their party and their organisation. Are they the only ones who are capable of loving Cambodia?

How does one define a Cambodian and a love for Cambodia?

My definition of a Cambodian is quite simple and it is someone who takes or wants to take a Cambodian citizenship, loves Cambodia and considers it his or her country and is willing at all cost to defend her and her interests.

Being born in Cambodia and having a dark color with curly hair are not important. Cambodia of modern day is composed of various ethnic groups who enjoy her culture, traditions, ways of life and consider her their home. This is a fact which cannot be ignored and ignoring it will only lead to more bloodshed and tragedy.

Imagine the US were at war with Cambodia and the Americans decided that the Khmers who had come to live there were not to be trusted and therefore should all be deported back to Cambodia. What do you think of that policy?

Now, your allegiance to the US is being tested, isn't it? Which country do you show your allegiance to? I am not going to answer that question, but let each one of you who is a Khmer and lives in the US answer the question yourself.

Cambodian political and national problems are quite complex and it is not easy to find a good solution to all the problems Cambodia faces. It will certainly takes a long time to address all the problems.

For prosperity and peace in Cambodia, we need to move beyond the ethnicity and race issues.

What do you think of the idea of incorporating or absorbing the Vietnamese who live in Cambodia into Cambodian society by making them part of Cambodia, the same way the Americans make Cambodians who live there part of their society and do it in such a way that when these Vietnamese inside Cambodia defend her, they are also defending their interests, their livelihood and that of their children in Cambodia.

A lot of Vietnamese who came to live in Cambodia may have come here for economic reasons, better opportunities and freedom thus will not support the Vietnamese government’s ambition over Cambodia.

Not working with them would give them with no choice, but to support the status quo in Cambodia. After all, some of them or a lot of them may also want to see a better Cambodia where freedom, democracy and prosperity reign. The SRP with their policy of sending them back to Vietnam has certainly lost millions of votes that could have been obtained. It is certainly doubtful that the argument accusing them to be all working for the interests of Vietnam is correct.

I am welcoming all ideas to address this issue with only one request that debate be civilized and no swearing, please. If you cannot refrain from swearing, then just accept that we agree to disagree on this issue and you can move on without leaving any dirty comments here.

Anet Khmer

Anonymous said...

4:16 am, anet khmer, you hit the nail right on the head. i too often said that same thing i.e. who cares about a person's background like national orgin, religious preference, etc... it is the love for cambodia, the care, the allegiance, the interest, the citizenship, etc, etc that matters more than the person's origin. cambodia should learn from america in this sense, i.e. we shouldn't discriminate against anyone based on their national origin, etc... it is more important the education, the speaking of khmer language, the love for cambodia and not destroying cambodia, etc, etc. you said it better than i can, anet khmer. let's pray that one day, all khmer people in cambodia will see no person's color, national origin, etc... let's help educate all khmer people the importance of unity, the importance of promoting khmerness, etc... let's help make cambodia a mini version of america's melting pot where all nationality can live side by side without fear, discrimination, prejudice and so forth. i still think the most important thing about cambodia is the promotion and speaking and learn to speak our khmer language fluently just as we would with any second languages. and let's emphasize the rule of law society in cambodia, let's foster the rule of law society once and for all in our beautiful country cambodia.

ps: sometimes, i listen or read sam rainsy political bias, they sounded too racial, too extreme or radical in the way they obscess with the youn race card or what have you. i think those youn people who have lived and worked and settled in cambodia must be encouraged to assimilate into khmer society, etc. and those you refuse can go back to vietnam, to be fair. yes, i believe khmer people reserved the rights to be khmer and to keep khmer way alive and well. youn people should respect khmer and cambodia for that. that's why we have a country called cambodia and youn country called vietnam. if cambodia want to be vietnam, then we wouldn't be called cambodia or srok khmer, ok! but anyway, assimilate into khmer, ok! however, the khmer leader like sam rainsy shouldn't be too extreme or radical about it, or he's going to end up blinded like the KR leaders who sit in court to face jail sentence, now. yes, time and the law will catch up with fanatical people sooner or later, it's just a matter of time.

also, if sam rainsy kept on using the race card to incite people, then my guess is that he will eventually lose popularity or lose the confidence in the very people he tries to serve, etc! flexibility and rule of law applies better, you know! anyway, just my thought here!

Anonymous said...

Don't be confuse Hun Sen, Hun Sen families, relatives, most CPP officers, Ex King Shihanuck are real EX Khmer Rouge too. If you give them exemption, you must give all criminal around the world exemption too otherwise it is really not fair for the innocent victims.

Anonymous said...

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