JulieAnne Mercier-Foint

MIXED TRIBUNAL TO TRY KHMER ROUGE LEADERS

JulieAnne Mercier-Foint (Clark University)

More than thirty years after the Cambodian Genocide, an UN-sponsored tribunal has been established in Cambodia and formal proceedings have begun against the surviving leaders of the Khmer Rouge regime. On July 10, 2006, the prosecutor��s office of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (hereinafter Extraordinary Chambers) began its investigation of those accused of perpetrating the genocide that took an estimated 1.7 million lives through forcible relocation, torture, execution, overwork, starvation, and disease.

In 1979, the Cambodia government gave the UN Commission on Human Rights a report containing 995 pages of testimony on the atrocities committed in Cambodia between 1975 and 1979. The Commission refused to consider the report, probably because key members of the UN supported the Khmer Rouge guerrillas, rather than the Vietnamese-backed government. Not until April 30, 1994, when the US passed the Cambodian Genocide Justice Act and formally called for an international investigation into the atrocities, did the UN acknowledge the atrocities of the Khmer Rouge. Three years later, in 1997, the Cambodian government requested the help of the UN in establishing a tribunal. While the following three years were characterized by negotiations between the UN and the Cambodian government, little was achieved. The UN and the Cambodian government were unable to agree on the organization and structure of a tribunal, and as a result, negotiations were halted (Cambodian Genocide Program, Yale University, ��Chronology, 1994-present,�� http:// www.yale.edu/cgp/chron_v3.html)

Cambodia proposed a Cambodian court assisted by foreign judges and advisers, while the UN proposed an international tribunal that adhered to ��international judicial standards, guarantee[d] the arrest of suspects identified by the court, and involve[d] international judges at all stages of the proceedings�� (Le Monde Diplomatique, October 2006).

Negotiations were renewed in 2000 when the Cambodian government asked the UN for assistance because it lacked adequate resources and knowledge to establish and sustain a tribunal. The following year, the Cambodian government passed the Tribunal Draft Law calling for the establishment of the Extraordinary Chambers. Three years later, on June 6, 2003, an agreement between the UN and the Cambodian government concerning the prosecution of those responsible for the Cambodian Genocide was signed. The UN and the government agreed to a ��mixed tribunal,�� similar to that of Sierra Leone. Unlike the international criminal tribunals for the former Yugoslavia and Rwanda, which only have international judges, the Extraordinary Chambers was to have both UN-appointed and Cambodian judges.

The establishment of the Extraordinary Chambers was followed by negotiations between the UN and the Cambodian government regarding the administrative system of the tribunal, the appointment of the judges, and the raising of the three-year $56 million budget. Only in the past nine months have these issues been resolved. Hence, prosecutors have just begun building their cases against those alleged to be responsible for crimes committed between 1975 and 1979. Prosecutors and judges decide on the exact charges and on whom to indict. Countries, such as China, Thailand, and the US, as well as non-Cambodians and foreigners, who share responsibility for the deaths of millions of Cambodians will not be indicted. Prosecutors have emphasized publicly that senior leaders of the Khmer Rouge are the only people subject to the tribunal law.

Cambodian and UN-appointed prosecutors are expected to hand over preliminary results of their investigations to the mixed group of judges by the end of the year. The judges will then act on the prosecutors�� work and announce indictments. Due to the tribunal��s limits on time, space, and funding, only a small number of people are likely to face trial. It is expected that no more than a dozen people will be named to stand trial and prosecutors do not anticipate issuing their first indictments until early 2007.

There are many people who are concerned about the tribunal��s ability to prosecute perpetrators of the Cambodian Genocide. Some people worry that the Extraordinary Chambers will do an incomplete job because its mandate is narrow and is only able to prosecute leaders of the Khmer Rouge. They also fear that the remaining possible defendants will not see the inside of the Extraordinary Chambers because they are elderly and/or are in poor health.

Others, particularly international organizations and human rights groups, remain concerned about the integrity of the Cambodian judges. They feel that Cambodia��s judges are incompetent, corrupt, and subject to political manipulation. They claim that eleven judges are unsuited for the job �� seven because of their involvement in politically manipulated trials and four because they have never served as judges before (International Herald Tribune, August 4, 2006). They point out that the UN-appointed judges have multiple law degrees and years of experience in international criminal justice, while little information is known about the Cambodian judges other than the fact that most received law degrees in countries of the former Soviet bloc

(Seattle Post-Intelligencer, May 22, 2006).

Many other people worry about the tribunal��s ability to investigate and secure reliable evidence and witnesses more than thirty years after the Cambodian Genocide. They worry that the ��decades-long gap between the crimes and the trial, arising from various political and geopolitical agendas, will��dull the memories of defendants and witnesses alike�� (International Herald Tribune, August 4, 2006). This is a concern that many people maintain about all tribunals, whether they are established immediately or years after a conflict or genocide.

Despite these shortcomings, most Cambodians are said to support the Extraordinary Chambers. Survivors, in particular, consider the tribunal fundamental to the process of truth, justice, and reconciliation. They want to face their perpetrators and tell their stories before it is too late (Bangkok Post, April 12, 2006). They also want proper closure for their suffering and believe that the tribunal will provide them with the means to obtain such closure . Many survivors believe that the tribunal will bring about justice. One survivor recently asserted that he hopes ��the tribunal will bring him justice for his losses and help him to understand the motives of Pol Pot�� (Asia Sentinel, October 6, 2006).

Supporters of the tribunal share the survivors�� notions of justice. They contend that ��the trials are the last chance to deliver some measure of justice to [the] survivors�� (International Herald Tribune, April 13, 2006). Despite some differences, critics and supporters of the tribunal alike agree that this process is significant. They believe that the tribunal serves a broader purpose than just prosecuting the leaders of the Khmer Rouge. They feel that the tribunal can become a shared experience for all Cambodians by helping younger generations understand what their parents and grandparents went through. They also feel that the tribunal can educate the world public about the Cambodian Genocide and be a defense against the continued presence of the people responsible for the genocide, still living openly and safely among the people they terrorized (The Nation, August 22, 2006).

This holds great importance, particularly to the survivors of the Cambodian genocide and relatives of its victims who feel that although three decades have passed since the Cambodian genocide occurred, those atrocities should not go unpunished.. The current process may help counteract the culture of impunity and begin to establish a culture of accountability in Cambodia.