VOICES OF CAMBODIA: CALLING THE KHMER ROUGE TO ACCOUNT

THE LEGAL EXPERTS

Contents:

LEGAL STANDARDS AND INTERNATIONAL PRINCIPLES by Sok Sam Oeun

OUR HISTORY MUST BE WRITTEN, SO WE CAN COME TO TERMS WITH OUR PAST by Dr.
Kao Kim Hourn

*

>From the editorial desk:

The Khmer Rouge targeted lawyers and judges for extermination, and only a
handful survived. As a result, Cambodia's legal profession has had to
build itself up from ground zero. In this issue, two surviving legal
experts look at some of the legal issues surrounding the tribunal.

Throughout most of the 1980s, SOK SAM OEUN lived in refugee camps. Today,
he heads the busy Cambodian Defenders Project, which provides legal
services for Cambodia's poor. Sok Sam Oeun is impressive in court, where
he invariably knows more than the judges and lawyers (who usually have
less training than he does). But nowadays he tends to spend more time in
administration and legal punditry than in court. He serves on many
committees and has been outspoken on several controversial episodes in
Cambodia's recent history -- notably the polarized 1998 elections. He has
also provided the most detailed legal analysis of the draft tribunal law.

Sam Sok Oeun lost several family members to the Khmer Rouge. In the longer
version of the article that follows, he started out by describing his own
personal feeling of terror at being a victim. He also lamented the lack of
confidence in law that resulted from the Khmer Rouge period. The article
looks at how the government's position has changed repeatedly, and at the
loopholes in the draft law. Sam Sok Oeun feels that a tribunal will bring
many benefits to Cambodia's weak legal system. He draws a distinction
between top leaders of the Khmer Rouge, who should be tried, and
lower-level leaders, who should be given an amnesty if they tell the truth.

KAO KIM HOURN, who authors the second article, holds a PhD from the
University of Hawaii. In our interview, which lasted two hours, he
exhibited skills learned during his education -- a sharp mind and thoughts
of a trained analyst. Talking without notes he covered almost every topic
related to justice and reconciliation of the Khmer Rouge: truth, justice,
history, the timing of a trial, security, amnesty, punishment,
forgiveness, and the role of civil society. Dr. Kao Kim Hourn also
recalled his own nightmares. During his studies, he was nicknamed 'the
screamer' by his college dorm-mates because he used to cry out in his
sleep.

Dr. Kao Kim Hourn's Cambodian Institute for Peace and Cooperation (CICP)
has a long history of organizing large meetings around sensitive issues.
These provide an opportunity for senior government officials to meet civil
society on neutral ground. The institute is exploring the possibility of
holding a conference on truth, justice, and reconciliation related to the
Khmer Rouge era.

*

LEGAL STANDARDS AND INTERNATIONAL PRINCIPLES by Sok Sam Oeun

At first I was very happy to hear that both Co-Prime Ministers sent a
letter to the U.N. General-Secretary to request assistance in setting up
an international tribunal for Khmer Rouge leaders. However, I was later
shocked when I heard that the government changed its position and stated
they did not need assistance from the United Nations anymore. Now, I am
hopeful again, because the Royal Government drafted a law for an
extraordinary tribunal to try senior Khmer Rouge leaders.

If this tribunal is conducted well, in accordance with international
standards and principles of fair trials, it can have at least four
following good results: first, to provide justice to Cambodian people who
are victims of this regime; second, to heal Cambodian society and end
nightmares of Cambodian victims; third, to find the truth, so that
Cambodians and the rest of the world can know why 1.7 million people died;
and finally, I hope that this tribunal can serve as a model to show
Cambodian people what the principles of a fair trial are.

Although there have been concerns that this tribunal could cause a new
civil war, I believe that now all Cambodian people want peace and we are
tired of war. I believe that all top Khmer Rouge leaders who are found to
be responsible for the regime should be punished and that this will deter
future dictatorship. The tribunal, which should be organized by the
government and the United Nations together, should try the senior Khmer
Rouge leaders (at least all members of the Central Committee) and should
give amnesty to others who confess in advance. I believe that this
solution can achieve both justice and peace. At the same time, we do not
want any Cambodian politician to use the people living in remote areas to
support guerilla warfare again, so the Royal Government should reach those
people by building roads and bringing development and telecommunication.

To heal Cambodian society, it is of utmost importance that the people have
confidence in the tribunal, and that it be done fairly. Although there is
currently an agreement between the Royal Government and the United Nations
to have a mixed tribunal, many points are not clear and transparent
enough. Those unclear points can make the people lose confidence in the
tribunal. At present, the people have no confidence in the Cambodian court
system, so they do not trust Cambodian judges and prosecutors. The order
for re-arrests that was made by the executive branch of the government
shows the lack of confidence in the current court system. Thus I think
that the United Nations should play a greater role in establishing this
tribunal. The United Nations should be the guarantor for the independence
of judiciary.

The current draft law of the tribunal cannot ensure the independence of
the judiciary and the effectiveness of the tribunal. The draft law states
that the Supreme Council of the Magistracy (SCM) appoints all Cambodian
and foreign staff. But I do not think that the people have enough
confidence in the SCM to be strong and independent. There are several
examples of cases where the SCM has not used its powers appropriately.

To obtain a fair judgment, we should have qualified prosecution, qualified
defense, and competent judges through a fair process. To have good
prosecution, we should have competent and professional investigators to
gather evidence to give to the prosecutor. The prosecutor should be
neutral and competent so he or she can prosecute properly. Investigating
judges should not be included, or if they are, their role needs
clarification.

Besides good prosecution, the rights to qualified defense counsel should
also be guaranteed. If the defendant cannot afford a lawyer, the United
Nations and the government should be responsible for hiring a qualified
lawyer of their choice and should pay for the lawyer.

The independence of judiciary is a very important factor in a fair trial.
The judge should be free to make decisions without fear, without
interference from other branches of the government or from others with
power, without misleading, irrelevant, or illegally obtained evidence, and
without fear of job security.

I would like to recommend that the draft law for the tribunal for the
Khmer Rouge leaders include the following:

- A foreign chief prosecutor appointed by the United Nations

- Clarification of 'the most serious violations'

- All judges, prosecutors, and chief administrators to be appointed by the
United Nations

- Key Cambodian posts to be matched by foreign counterparts

- Clarification of the role of investigating judges

- Security for trial participants

- Internationally accepted rules of procedure

- An autonomous budget for the tribunal

- Arrest of indictees

- Right to counsel

- Right to appeal

- A royal pardon
 

* Sok Sam Oeun is Executive Director of the Cambodian Defenders Project.
Email: cdp@worldmail.com.kh. The full recommendations are available from
the Defenders Project.


OUR HISTORY MUST BE WRITTEN, SO WE CAN COME TO TERMS WITH OUR PAST by Dr.
Kao Kim Hourn

The Cambodian Institute for Peace and Cooperation (CICP) held a conference
from January 12-14, 2000, on 'The New Millennium: Managing the Past and
Building the Future.' The conference was very timely, and it was a start.
But we only did a two-hour session on the legacy of the Khmer Rouge, which
was not enough.

We now have a chance for an open-ended discussion. Our hope is to
contribute as much as possible to the process. If we don't do so, we will
be responsible. Everyone should submit their contributions. Based on this
input we can have a better law that can lead to a better trial. A good
trial can contribute to healing and ultimately to national reconciliation.
Time has been lost already. Time is important to keep up the momentum of
the issue. Many Cambodians still have nightmares about the past. We have
to deal with the past in a constructive way.

Justice: It is important that we not seek justice for the sake of revenge.
Truth is more important than justice. The Khmer Rouge dilemma is every
Cambodian's problem. If we start to talk about it, everyone will have to
face their pasts. We have to be sensitive, but at the same time should not
let it go. History cannot be subtracted, added, or divided. History must
be written -- why and how it happened. This is important for Cambodia and
should be done in a constructive and non-confrontational way. The purpose
is to learn more and to think of how we would deal with such situations in
the future. We have to find those who are responsible, and by doing so we
will go through a healing process. National reconciliation is important,
but not at the expense of truth or justice.

Trial: It is imperative that Cambodians come to terms with the past. We
have a moral responsibility for the people who died during the Khmer Rouge
period. We should not conduct a trial for the international community, but
to satisfy the needs of the people of Cambodia. There should be more
interest in determining what the people want and need, and the draft law
should be based on those needs. Of course there will have to be some
compromises because the needs of all people are not exactly the same.

I think it is important to have a mixed trial including Cambodians and
international participants. We have to make our standards as good as
anyone else's. Why should Cambodians have inferior standards? We should
have excellent standards. This is vital because if it is only a Cambodian
trial, people won't trust the outcome. Because the people have been living
under so many different regimes, they now don't trust the system,
especially the courts.

It is important for the government to gain the confidence of the people. A
well-conducted trial would be the best opportunity to regain the lost
confidence of the people. If we are not serious about this, it would be a
terrible thing. We need to include national judges who are doing a good
job in drafting.

Another reason it is important to have a trial is that this is the only
way to build a culture of justice in society. It is essential to establish
the rule of law and to reverse the process of the culture of impunity. A
trial will also serve to make the Cambodian leadership more accountable.

We should look at the spirit of the law. This is more important than
procedure. If we get bogged down with procedures we will lose the focus in
determining where we need to go. We all want to have a credible, free, and
fair trial. In this context, we have to build a consensus and national
spirit. The prime minister has more to gain from a credible trial than one
that is not. This is a key political issue. If he can deal with this trial
in a credible way, then he can be included in history with other great
leaders of Cambodia. This issue is too important to let it go. I still
have a great hope in this government to deal with the trial.

Although I am sure that my view is not different from many other
Cambodians, it is my own view and we need to look at the views of all
Cambodians. We need to understand views of the silent majority, because it
is vital to be inclusive and participatory.

Who Should Be Tried? We must, however, realize that we can't put everyone
on trial. This would be impossible and costly, with other serious
implications. We should also have a fairly speedy process because this
affects the whole country: a trial of the Khmer Rouge leaders will be like
a trial of the whole country. Concerning how many will go to trial, this
is not just a question of number, but we have to ascertain who were mainly
responsible for the policy and implementing that policy at the highest
level. Those who are found guilty have to be dealt with according to the
rule of law.

At the next level, we must help them come out at perhaps at some kind of a
truth commission. We need to find out what they did and why. Then they
should be forgiven and let go. The lower-level Khmer Rouge we should
forget, as they were also basically victims. They should be given courses
on human rights, democracy, and morality, to improve their integration
into society. They should not be kept together in one place. They should
be scattered through the country and return to their native villages. This
is the only way to become integrated into society. But this cannot be done
by coercion. They must be offered support. This is the only way to
socialize people, so they can work on their own.

Another important issue is this question of witnesses and also suspects.
We have to be clear about this. If we call witnesses to the stand and turn
them into suspects, this will have very adverse consequences. The trial
must keep the numbers in mind, and there must be enough evidence. The
evidence must be researched carefully. There must be realistic ideas about
who to prosecute. The trial should not raise false expectations. If the
trial does not meet the expectations of people both inside and outside the
country, it will be condemned.

Timing of a Trial: Timing is of key importance. We can't wait until all
the Khmer Rouge leaders die. We have to try them while they are still
alive. But let me emphasize, this should not be a witch hunt. It is not a
way of getting even. It is very important for the national psychology. We
have to manage the challenge of the Khmer Rouge legacy, and we have to
deal with it in our society.

At the same time, we should not rush the trial. If we don't do this
properly we can fumble the issue, which would have negative consequences.
When morality has declined in Cambodia, a proper trial on the Khmer Rouge
issue can help strengthen and re-arm morality in society.

But we must understand that peace is still fragile in Cambodia. Political
stability is at its early stages. Therefore, we must think of the conduct
of the trial to ensure that we don't go back to square one. We can ensure
this by beginning a process of discussion and trying to increase the
confidence of the general public. This of course includes the people
living in the former Khmer Rouge zones. The ex-Khmer Rouge soldiers must
be integrated into society. They should understand that the trial is not
about revenge. There should be guarantees of a fair trial by the
international community if there is not yet adequate confidence in
Cambodia.

The trial, however, should not be a drawn-out process. This could be very
costly in every way -- financial, political, and psychological -- not just
for the people involved, but also because the international community will
scrutinize the process and Cambodian development will be on the back
burner. If it is a long drawn-out process, it will hurt the economy,
tourism, and the image of the country. Thus, the international community
should also think of the negative effects of the trial and plan ahead to
help Cambodia. If not properly conducted, the trial will undoubtedly have
negative effects on the economy and nation building.

Security for the Trial: The government needs to provide security for the
people living in the former Khmer Rouge areas especially during the period
of the trial and after the trial. It will be tense. The government should
be prepared to face the challenges of the consequences of organizing the
trial. They should anticipate the problems that could arise. These
problems could range from an attack to harassment of witnesses. We will
have to be very careful. We have to protect everybody involved in a trial.
There will be major financial implications of this.

Amnesty and Punishment: Amnesty is the King's prerogative. I believe that
inserting a clause in the draft law about amnesty would be
unconstitutional, because in our constitution only the King can give an
amnesty. We should not tell the King what to do, because he is fully
responsible for any amnesty. In my view, if he thinks there are grounds
for amnesty then he has the right to do that -- it is in our constitution.
To induce the former Khmer Rouge to come to the trial, it may have been
necessary to offer them amnesty. But of course they should admit their
wrong doing if they are given amnesty. Amnesty can be thought of in
different ways, as it can range from a reduction of a sentence to a
complete amnesty. The King, in any case, would be morally responsible as
well as politically responsible for any amnesty decision.

My notion of justice for those who are suspected of committing crimes is
that they should be given a fair trial. But we should not be vengeful.
This should not be done for political convenience either. Justice should
not be defined by the victors only. Justice should be kind and generous.
At the same time, it doesn't mean justice should condone those crimes. He
who grants amnesty is wholly morally responsible. In the case of an axe
murderer who committed heinous crimes, an amnesty would be impossible.
However, the number of years of the sentence could be reduced for various
reasons as long as the reasons are in the national interest of Cambodia,
such as for the maintenance of peace and stability. For example, if
someone is given a life sentence and it is reduced to 20 years, but that
person is already 70 years old, it will depend on how you look at it.

Amnesty for the low-level people must be given -- but only for those who
were following orders, not for those at the high level of decision making.
The names of those high-level persons are known already.

The Debate on the Trial: It is also important that when the National
Assembly debates this draft law that it is broadcast on television. The
National Assembly should welcome comments from the people throughout the
country. This should be an open, transparent process. It is the most
important national issue facing us today.

The government should initiate the process, and then the National Assembly
should debate. The Senate will also have its turn. Civil society
organizations and other interested parties outside should also discuss. We
must use all channels and we should not get bogged down pursuing one
particular route. There are so many ways to approach this issue. It is
important that we don't have pre-judgment. We must let all views be heard.
There should be meetings to send ideas to the government and the National
Assembly about what is best to do on this issue.

The government should continue to tolerate the contending views on the
Khmer Rouge issue. They should let the people talk and let their voices be
heard. I commend the government because so far it has been able to do this
already. This is a strength of the government. It has shown already that
it has been accepting of dissenting views. This is an important step
forward. Hopefully this process will lead to even more vigorous, open
debate in the future.

Role of Civil Society: Civil society should be more proactive on this
issue. We all have a role to play. Those who want to express new ideas --
let them be heard. Some people focus only on the positive; others only on
the negative. But it is nonetheless important to hear all the views. Not
about what was right and wrong, but Cambodia has to come to terms with its
past. We have to bury the past somewhere. That doesn't mean we should
forget the past, but we have to close the sad chapter otherwise it will
continue to haunt us. As Cambodians, we must proceed on this issue as soon
as possible. We must not let this issue be a burden for the society and
for the future of this country. It has already been a burden for too long.

The civil society debate could be done in parallel. We should not think
that the government and National Assembly have absolute monopoly or
ultimate wisdom. The people should have the right to participate as well.

* Dr. Kao Kim Hourn is Executive Director of the Cambodian Institute for
Peace and Cooperation (CICP). Email: cicp@camnet.com.kh

*

In the next Issue: Visions of Reconciliation

*

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