Human Rights Watch continues to believe that justice is best served by a fully international tribunal. In the event, however, that a tribunal is established under Cambodian law, Human Rights Watch considers the following to be minimal acceptable benchmarks for a credible and legitimate tribunal:
1. Legal Basis of the Tribunal. The tribunal should be subject to conditions established by the United Nations, which should be included in a statute drafted by the United Nations. The statute should define the tribunal's jurisdiction, competence, composition, fair trial guarantees and rules of procedure in accordance with international standards and precedents of the two existing ad hoc tribunals for the former Yugoslavia and Rwanda.
To meet these conditions, and others which follow in this appendix, a new, special tribunal must be created. Trials must not take place in the existing Cambodian court system, which is incapable of meeting minimum standards of due process and fairness. The current U.N. proposal does not specify a statute for a new tribunal or U.N. drafting or approval of such a statute.
2. Organization of the Tribunal. A new tribunal would require at least one and possibly more trial chambers (depending on the case load) and an appellate division. The decision of the appellate division must be final.
The legal framework establishing the tribunal should not allow any appeal to a Cambodian court or to the Cambodian Constitutional Council, which would have the effect of nullifying the independence of the tribunal by rendering it subordinate to the Cambodian judiciary. The present U.N. proposal does not include any form of appellate division or right of appeal, a violation of Article 14(5) of the International Covenant on Civil and Political Rights, a treaty to which Cambodia is a party.
3. Personnel. It is essential for the independence and credibility of the tribunal that the United Nations retain control over the selection of the judges, the prosecutor and the staff, whether they are international or Cambodian. The chief prosecutor, a majority of judges and the Registrar (the tribunal's chief administrative officer) should be non-Cambodians. The United Nations Group of Experts contemplated the inclusion of a small minority of Cambodian judges and prosecutors. The actual mix is less important than the selection process, however. The imposition of tribunal personnel by political factions in Cambodia would destroy the tribunal's credibility in the eyes of Cambodians and should render it unacceptable to the international community as well. Ideally, the U.N. Secretary-General or a panel named by him would propose key appointments of both Cambodians and non-Cambodians, though the Cambodian Supreme Council of Magistracy could forward names for the former to the Secretary-General. Cambodians selected could be sent to The Hague for training in international legal standards. All appointments of international staff should be made through the U.N. and as staff of the U.N.
The U.N. proposal, while specifying that the prosecutor and a majority of the judges be international, does not require U.N. approval for Cambodian judges, nor does it set any requirements for their qualifications, although foreign judges are to be "persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices."
In addition the U.N. proposal should include provisions that defendants have the rights to counsel of their choice, including attorneys of any nationality.
4. Subject Matter Jurisdiction. The tribunal should have jurisdiction over crimes against humanity, genocide, forced labor and torture, as set forth in the Group of Experts report. The definitions of these crimes should be drawn from the statutes of the two ad hoc tribunals and the International Criminal Court.
5. Personal jurisdiction. The Group of Experts properly recommended that the tribunal be established to bring to justice "those persons most responsible for the most serious violations of international human rights law."
6. Cooperation. The U.N. proposal only requires cooperation with respect to arrest of suspects. The Cambodian government must agree to give its complete cooperation with the Tribunal, including opening all its files and complying with Tribunal resolutions and orders, including for the arrest of suspects.
7. Protection of Witnesses and Personnel. Joint U.N. - government programs must be established for the protection of witnesses and the security of all other participants, including judges and lawyers as well as investigators and defendants and prisoners. This protection must be available from the earliest investigatory stage through post-trial measures. In particular, the court must be able to take security measures to protect witnesses and victims and their families from reprisals. Such measures must not prejudice the rights of suspects and accused.
8. Fair Trial and Due Process. The tribunal should ensure the highest international standards of fair trial and due process at all stages of the proceedings. Particularly given the mistrust of official institutions, which runs so deep in Cambodia, justice must not only be done, but be seen to be done. Therefore, the tribunal must be scrupulous in its respect for international standards including Articles 9, 10 and 11 of the Universal Declaration of Human Rights; Articles 9, 14 and 15 of the International Covenant on Civil and Political Rights; the U.N. Standard Minimum Rules for the Treatment of Prisoners; the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and Articles 7 and 15 of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The U.N.'s proposal for holding joint trials of more than one defendant at one time threatens these standards. A joint trial may prejudice both the rights of defendants and the ability of the prosecution to mount an effective and well-supported case. The decision whether trials should proceed jointly or separately should be left to the prosecutor, with review on defense motion by the tribunal. Any arbitrary time limit would make a mockery of the tribunal's mandate to bring to trial those most responsible for the gross abuses of the Khmer Rouge.
9. Death penalty. There should be no provision for the death penalty, in accordance with the statutes of the International Tribunals established for Rwanda and the former Yugoslavia and the International Criminal Court, as well as the Constitution of the Kingdom of Cambodia.
10. Pardons. There is no mention of whether royal pardons may apply to the tribunal in the U.N. proposal. A royal pardon could rob the whole effort of legitimacy by undermining the decisions of the tribunal. Pardons should therefore be barred.
11. Financing. A U.N. trust fund should be established to pay for the tribunal. The Registrar and the chief financial officer maintaining control over funds must be selected by the United Nations. The tribunal should exist and operate so long as it has financing and viable cases within its jurisdiction are still being investigated or being brought to trial.