Core Issues in Khmer Rouge Tribunal Law Unresolved (Human Rights Watch Press Release, January 2000)
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Core Issues in Khmer Rouge Tribunal Law Unresolved
(New York, January 21, 2000) -- Human Rights Watch today called on the Cambodian government to revamp the draft law setting up tribunals for the Khmer Rouge, to lessen the risks of political manipulation. The rights group urged the United Nations to actively continue negotiations with the Cambodian government to insure that any tribunal meets international standards of independence and fairness.

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"The international community should not participate in a tribunal that offers Cambodians second-class justice. Khmer Rouge trials may take place, but will they have enough integrity to warrant the legitimacy that participation of the United Nations would confer? That's the key question."

Mike Jendrzejczyk,
Washington Director of the Asia Division of Human Rights Watch

"The international community should not participate in a tribunal that offers Cambodians second-class justice," said Mike Jendrzejczyk, Washington Director of Human Rights Watch's Asia Division. "Khmer Rouge trials may take place, but will they have enough integrity to warrant the legitimacy that participation of the United Nations would confer? That's the key question." Jendrzejczyk noted that other troubled regions are watching this experiment closely, making it critical that minimum international standards for justice be met.

"More and more people accused of serious human rights crimes are being prosecuted, not just in Cambodia, but all over the world," said Jendrzejczyk. "But the phenomenon is still new -- and that makes it especially important that these tribunals be established properly."

The Cambodian Council of Ministers approved a working draft of the law on January 7, and sent an amended version to the National Assembly on January 19. The National Assembly is expected to act on the draft within the next several weeks.

At the heart of the draft law's weakness, according to Human Rights Watch, is over-reliance on Cambodia's judiciary and civil service, which traditionally have been directly manipulated by the executive branch. In place of an international panel of judges, the draft law calls for a majority of Cambodian judges to hear each case. The draft law further stipulates that while foreign judges and prosecutors nominated by the U.N. must be approved by the Cambodian government, the United Nations would enjoy no reciprocal power of approval over their Cambodian counterparts.

The latest revisions to the law would also allow individual member states of the U.N. to nominate judges or allow unilateral selection of willing foreigners, thus opening the door for circumvention of United Nations procedures on nominations and qualifications. Human Rights Watch stressed that the United Nations should not lend its imprimatur to the tribunal unless the U.N. Secretary-General has power to approve all judges and prosecutors.

Jendrzejczyk noted that the draft sent to the National Assembly deleted provisions in earlier versions that would prohibit prosecutors from accepting instructions from the Cambodian government.

The draft of the law includes the following pitfalls:

  • It is unclear whether the Cambodian and foreign co-prosecutors will have to agree on all decisions or whether they will have independent powers, including power to indict. As long as the Cambodian co-prosecutor has a veto over indictments, there is a strong possibility of political interference in the charging process. The same concerns also apply to the co-investigating judges.

  • The supermajority requirement for judicial decisions, although designed to ensure that at least one foreign judge be required to vote in favor of conviction, means that there may be insufficient votes for conviction and no clear basis for acquittal. The tribunal's work therefore could easily end in stalemates. The draft law is unclear as to whether the supermajority procedure will apply to judicial decisions other than conviction, an important issue to resolve in advance, given the importance in many trials of intermediate decisions.

  • The law contemplates reliance on Cambodia's current criminal procedure code, which is flawed both in its content and its present application. The criminal procedure code offers insufficient protection for the rights of defendants in areas such as access to evidence and court files, access to counsel, the right to confront one's accusers, and the right to cross-examination of witnesses.

  • While the law as amended allows for co-investigating judges, in practice in Cambodia the power of the investigating judge is unclear vis-a-vis the prosecutor and the court. In other legal systems, such as France, the investigating judge serves as a check on the public prosecutor, critically examining and evaluating the prosecution's case and ensuring that exculpatory evidence is also presented to the trial judge. In Cambodian practice the investigating judge generally passes police and prosecution files along to the trial judge uncritically. There are few checks against the decision of an unskilled or politically-controlled investigating judge or prosecutor.

  • The government is prohibited from requesting amnesty for persons convicted under this law, but the law is silent on whether persons already granted amnesty may be prosecuted, convicted and punished. Many Khmer Rouge have received such amnesties when they surrendered to the government. Human Rights Watch opposes amnesties for the most heinous human rights crimes such as genocide, war crimes and crimes against humanity.

  • The law specifies that defendants are entitled to the assistance of counsel of their choice, but it does not specifically provide for the recognition of foreign defense counsel. There are few professionally trained defenders in Cambodia, particularly those experienced with the kinds of charges that will be leveled against the Khmer Rouge. An important check on the integrity of the procedures will be the participation of foreign counsel on the defense side.

  • Intimidation of witnesses and court personnel is common in Cambodia, yet the draft law makes no reference to measures of protection for participants in the tribunal. The law should include a well-conceived protection plan to ensure that fear for personal security does not prejudice decision-making.

Leading Cambodian groups have voiced similar reservations in a January 6 statement by the Human Rights Action Committee, which expressed concerns that the draft law will fail to bring justice to the Cambodian people.

For more information:

Mike Jendrzejczyk (Washington, DC) +1 202 612 4341
Dinah PoKempner (New York) +1 212 216 1210