JUSTICE: 'Most people will not see someone who is personally responsible ... brought to trial,' says Dame Silvia Cartwright. (Photo: The Press)
Saturday, 5 May 2007
The Dominion Post (New Zealand)Dame Silvia Cartwright should be in Phnom Penh, but she's not. Instead, e-mails are whizzing about while she is in New Zealand, eagerly wondering how she will get around engagements in time to be part of the long-awaited trial of the surviving Khmer Rouge leaders.
Nearly 30 years after the regime that killed nearly one-fifth of the Cambodian population fell, international efforts to bring those responsible for the genocide to trial are floundering.
The Khmer Rouge survived as rebels till the late 1990s, and in 1997 Cambodia first appealed to the United Nations to set up the Khmer Rouge Trial Task Force.
There have been on-again off-again negotiations. More than US$50 million was scraped together by the UN to fund the court, and accusations have been hurled at the Cambodian Government for interfering in the process. Late last year both Cambodian and international judges were finally sworn in and the nitty gritty of setting up a hybrid court began. Dame Silvia, former governor-general of New Zealand, is one of 15 international judges.
The latest hold-up, the one that has Dame Silvia twiddling her thumbs and rearranging her schedule, has come down to an administration fee.
The Cambodian Bar Association can charge an administration fee to process any foreign lawyers wanting to take part in the trials. But the nearly US$5000 the association has proposed has the international judges putting their foot down, saying the fee jeopardises the rights of victims and the accused to choose the lawyers they want to represent them. There have been suggestions in Phnom Penh that the fee is simply a kickback for the association. Latest negotiations have the fee down to $500, which is still "ridiculous", says Dame Silvia, but the international judges will agree if it means getting a move on.
According to the UN, no other bar associations in an international tribunal of this type have charged a fee. The only equivalent is the Association of Defence Counsel practising before the International Criminal Tribunal for the Former Yugoslavia, which charges about US$200 to be a member, and lawyers must be members to take a case at the tribunal.
Since the end of last year, the Cambodian and international judges have kneaded out the rules the court will operate under, but haven't set them in concrete because of the fuss over the bar association fees.
"It's particularly difficult because in Cambodia, there is a need to build overtly certain safeguards to ensure fair trials. In Cambodia law, you can have trials of people in absentia, so the person isn't even there, and may not even know that the trial is occurring. The person could be convicted and sentenced and will eventually get to know about it, and if they come back to Cambodia they will be arrested and have to serve their sentence without any real chance to defend themselves.
"What we've done is to look at what the international principles for fair trials are, and incorporate them into the local practice. It's not (the local people's) fault their judicial system is so weak because 30 years ago most of the lawyers and judges were wiped out or had to leave the country. So it's a very shallow pool of expertise. All the judges I will be working with have been trained outside Cambodia, but in very different systems, such as Vietnam, Moscow and Kazakhstan."
IN APRIL 1975, armed militia entered Cambodia's capital city, Phnom Penh, and began forcing people out of their homes. The city's two million residents were marched into the countryside, as had already happened in towns and villages across the country, and marshalled into forced labour camps. The armed men were Khmer Rouge soldiers, and they began a regime that would last four years and take nearly two million lives, leaving few Cambodian families unscarred.
The Khmer Rouge's ideal society was agrarian, communist, and free from the bourgeois influences of religion, money and foreign powers. Lawyers, doctors, artists, writers, or anyone who spoke a foreign language was purged, some tortured first before they were killed. Everybody worked in the fields - some to death - while others were killed for daring to grow their own private gardens to avoid starvation. Others died from routine diseases that were left untreated by a regime that refused to allow any medical treatment. Children were brainwashed into dobbing in their parents for petty crimes - even smiling was banned.
When the regime was toppled in 1979 by invading Vietnamese forces, nearly a fifth of the Cambodian population was dead. Almost 30 years later, the hold-up is frustrating to those who want to see justice done.
"You talk to pretty much anyone in the street, as it were, and they will say, `what's the trouble - why aren't these happening? It's been 30 years now, we just want to understand what's going on'."
Dame Silvia says the impact of the genocide is "enormous" and still much in evidence in Phnom Penh today.
"It's like the most terrible crime on a person. Someone whose close relative has been murdered, their whole life changes. In this case the whole country's life has changed and I'd say most families have lost members. They've been dispossessed of all sorts of rights and assets and they've lost the intelligentsia of a whole generation. And it's one of the most cruel, cruel periods because the whole country was involved. You only have to go into the city of Phnom Penh and see how intricate a city it is. Try to imagine the militia coming in and forcing you out of your home and making you walk in the heat - you can't even begin to imagine what it must be like."
So will Cambodia have to wait a bit longer to see justice served?
"If we can adopt the rules very soon, I do believe it will (go ahead), because the investigative phase starts as soon as the rules have been adopted and (those) two judges are ready and waiting. My trial phase will start about six months later for these to come through the system. Most (of those to be charged) are living in Cambodia, as I understand, but I don't know who they are, but the big picks are living in villages around the country."
If the trials do go ahead will they deliver the justice the country is seeking?
"It'll hopefully give justice but only in a few instances. There were thousands of people who committed grave offences during the period and we're talking about six to 10 people who will be representing that group. So in personal terms, most people will not see someone who is personally responsible for the killing of their mother, father, sister, brother or whatever brought to trial, but what it will do is demonstrate what actually happened for the Cambodian people. And perhaps give them some understanding of what, to me, is still a mystery and I'm sure it is to the Cambodian people as well. How something of this scale could happen."
