Can Hun Xen be pursued by the ICC?

Dear KI[-Media],

I am writing to you to seek your answer whether ICC has jurisdiction on Hun Sen if any of us sue him [in] the said court?

I hope to hear from you.

Yours sincerely,

L. H.

Dear L.,

We raised your question to one of our legal acquaintances, the answer is provided below. We hope this reply will be useful in your future endeavor.

Disclaimer: We cannot be held liable should your question earns you a curse of "lightning strike at noon" from certain quarters in Phnom Penh. Nevertheless, from our personal experience, such curse did not work on us yet. The US National Weather Service reported that the odds of being struck by lightning in a given year (reported deaths + injuries) is merely 1/750,000, i.e. a relatively minute chance.

Sincerely,

KI-Media

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YES!

Cambodia has ratified the ICC and thus is under its jurisdiction. If right now the ICC prosecutor [Luis Moreno Ocampo of Argentina] wants to go after Hun Sen like he has gone after the president of Sudan and the leader of the War Lord's Resistance army, he can. He would like to go after the Burmese Junta I am sure, but Burma has not ratified the ICC and is thus not under its jurisdiction.

In sum, theoretically, YES the ICC prosecutor can go after Hun Sen, but unfortunately not for the crimes of 1997, as they occurred before ICC came into force in 2002; ICC cannot work retroactively.

Rome Statute of the International Criminal Court

http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf

Art. 11: 2. If a State becomes a Party to this Statute after its entry into force [ July 2002] the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State…

Art. 1: The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

Art. 15 vests substantial power in the person of the Prosecutor (one of the reasons the US has not ratified).

Sacrava's Political Cartoon: ICC ... from Darfur to Cambodia

Click on the cartoon to zoom in

Cartoon by Sacrava (on the web at http://sacrava.blogspot.com)

Hun Sen: Don't arrest my alter ego, Omer Hassan Al-Bashir of Sudan

Hun Sen (L) and his alter ego Omer Hassan Al-Bashi who is wanted by the ICC for the Darfur genocide

Cambodia’s Prime Minister says ICC’s decision damages Sudan peace efforts

Sudan Tribune

April 9, 2009 (PHNOM PENH) – The Cambodian Prime Minister Hun Sen slammed the International Criminal Court (ICC)’s decision to arrest the Sudanese President Omer Hassan Al-Bashir on Darfur crimes saying it hiders international efforts to end the six years conflict.

"The arrest warrant for the Sudanese President issued by The Hague court will remains without effect as you can wait and see" said Hun Sen in a speech at the Royal University of Agriculture in the Cambodian capital, Phnom Penh.

The ICC issued last month an arrest warrant for the President Omer Al-Bashir on crimes against humanity and war crimes. However the court dropped the three counts of genocide that had been filled by the prosecutor in his request of July 14, 2008.

The issue of genocide committed by the Khmer Rouge in Cambodia is still raising controversies in the country. Hun Sen had been criticized for undermining effort to call to account the surviving members of a regime which killed 1.7 million from 1975 to 1979.

Critics allege that Cambodian Prime Minister has sought to limit the tribunal’s scope because other potential defendants are now loyal to him, and that to arrest them could be politically awkward.

"The Sudanese people and troops with weapons in their hands will not allow the court to arrest their leader," said Hun Sen.

The ruling Sudanese president has his privilege in leading the country, he said, adding that "I do not know why ICC did like that."

Further Hun Sen stressed that ICC cannot follow suit in Cambodia to arrest the surviving leaders of the former Khmer Rouge regime. Those leaders "now stay in a place here and we ourselves can arrest them for tribunal," he added.

Currently, five senior leaders of the Khmer Rouge are under custody of the Extraordinary Chambers in the Courts of Cambodia, which was co-installed by UN and the Cambodian government two years ago to put these people on trial on charges of crimes against humanity and war crimes.