In the immediate period leading to the trial of Khmer Rouge Prison Chief Kaing Guek Eav, alias Duch, on 30 March, there was a disagreement between the international and the national co-prosecutors of the Cambodian UN-assisted Khmer Rouge Tribunal (KRT) over the prosecution of more Khmer Rouge leaders in addition to the five who have already been arrested and detained and who are awaiting trial. According to KRT, the international co-prosecutor, Robert Petit, has proceeded to “open new judicial investigations against certain additional suspects”, saying that “there are reasons to believe that (1) the crimes described in those submissions were committed, (2) these crimes are within the jurisdiction of this Court, and (3) they should be investigated by the Co-Investigating Judges.” KRT said that Petit “does not believe that such prosecutions would endanger Cambodia’s peace and stability.”
For her part, the Cambodian co-prosecutor, Chea Leang, “believes that these investigations should not proceed on account of Cambodia’s past instability and the continued need for national reconciliation, (2) the spirit of the agreement between the United Nations and the Government of Cambodia (“Agreement”) and the spirit of the law that established this Court (“ECCC Law”), and (3) the limited duration and budget of this Court.” She “feels that this Court should instead prioritize the trials of the five suspects already detained” and “maintains that this Court’s mandate can be adequately fulfilled by the prosecution of the suspects already detained.”
The Cambodian government has taken side with the national co-prosecutor but has stopped short of taking any direct action to end these additional prosecutions or thwart the KRT Pre-Trial Chamber to adjudicate the disagreement between the two co-prosecutors. It has preferred to beat the bush about to achieve the same end. In February, referring to their continued recognition of the Khmer Rouge after the latter’s ousting, Prime Minister Hun Sen lambasted, saying that “the UN and countries that supported (Khmer Rouge Leader) Pol Pot to occupy (Cambodia’s) seat at the UN from 1979 to 1991 should be tried first… They should be sentenced more heavily than Pol Pot.”
Later on, in March, the government spokesman and Minister of Information, Khieu Kanharith, amplified his Prime Minister’s unhappiness and urged the KRT to deal with the five suspects it had detained, accusing KRT foreign staffs of dragging their feet so as to get more salaries. He said: “they have not even heard one case, yet they have created another. They are simply dragging their feet so as to receive more salaries. If they really want to push the process forward, when they have five cases at hand, they should hear these five cases first. When they have finished with them, then they can think of others.”
However, these messages do not seem to have the desired effects and dampen pressure for more prosecutions. On 31 March, the second day of Duch’s trial, in a speech at a road inauguration in a costal province, Hun Sen came to the open to forcefully oppose the prosecution of any more former Khmer Rouge leaders. He said: “they have gone about telling people that they will also prosecute all those brothers, that is, down to (Khmer Rouge) army division commanders. I’m telling them this: I will allow this tribunal to fail, but I will not allow Cambodia to have another war. This is an absolute stand. Please prosecute only those people (in detention).”
Referring to KRT’s on-going financial difficulties, Hun Sen did not welcome Japan’s recent aid of US$200,000 to the tribunal for the payment of staff salaries, on top of its contribution to half of the tribunal’s original budget of US$56 million, saying: “I¡¦m not happy that Japan donated money to the United Nations to prosecute the Khmer Rouge because I wish for the tribunal to run out of money.”
Hun Sen’s “absolute stand” against any further prosecution is but a blatant interference in the tribunal’s work, interference that has been most feared since 1999 when the government had changed its mind and insisted upon a Cambodian trial instead of an international one as it had originally requested the UN to create in 1997. His stand has violated the principle of separation of powers, the independence of the judiciary and the prosecutors’ exclusive power to prosecute, which are all enshrined in Cambodia’s Constitution. It has also violated the Cambodian Code of Criminal Procedure under which no one can order a prosecutor not to prosecute.
Furthermore, the same stand breached the law on the Khmer Rouge Tribunal, which gives this tribunal all power to bring to trial Khmer Rouge leaders and those most responsible for crimes committed under their regime and also Article 20 of the same law on the settlement of the difference between the co-prosecutors by a pre-trial chamber.
Hun Sen¡¦s preference for the tribunal’s failure and his displeasure with the donation which keeps it afloat has confirmed the doubts about his seriousness about the Khmer Rouge trial right from the beginning of his government¡¦s negotiations with the UN in 1999. These negotiations took eight years before the tribunal could see the light of day in 2007. It has also confirmed the on-going suspicion that the Cambodian government wants to control the tribunal.
When invoking the prospects of another war if there were more prosecutions, Hun Sen seemed to contradict his own ability and success, in the second half of the 1990s, in ending the war which the Khmer Rouge continued to wage and which the UN had failed to end with its huge peace-keeping force that administered Cambodia in 1992-93. In 1996, while the Khmer Rouge were still a force to be reckoned with, Hun Sen had maneuvered to split the Khmer Rouge, enticing one group under Ieng Sary, now an accused before the tribunal, to defect to the government’s side.
Two years later, in 1998, he succeeded in coaxing the rest under Nuon Chea and Khieu Samphan, now also awaiting trial, to surrender to his government. He also succeeded in arresting the late Ta Mok, the notorious and feared one-legged Khmer Rouge army commander, next to Pol Pot, who was still rebellious. With this surrender, all the Khmer Rouge politico-military apparatus was completely dismantled.
Nowadays, after more than ten years of their defection or surrender, the bulk of Khmer Rouge cadre is living scattered in their zones bordering Thailand. All senior cadres and some rank and file, that were already fractious before the final surrender, have since been integrated in the national army and the civil service. The rest have been pursuing their separate ways of life far different from their proletarian days. Some senior army commanders have even become more like feudal lords possessing big land holdings. Many of the former cadres have grown old and weary by the prolonged struggle in the jungle.
Among all of those remaining Khmer Rouge leaders and rank and file there is no leader of prominence who could replace the former leaders who have died or have been detained and mobilise their former comrades to make a war if the few senior military commanders Hun Sen has cited are arrested by the Khmer Rouge Tribunal. The prospects of any other Khmer Rouge leader identified by KRT for prosecution starting another war seem very remote. Furthermore, the country is far more united behind the government, and the Cambodian security forces are much stronger and more able to quell any rebellion.
The invocation of another war was but a scare mongering tactic to stop the tribunal from doing its work to uncover the truth about the Khmer Rouge crimes and to deliver justice to the victims.
The Asian Human Rights Commission (AHRC) therefore urges the Cambodian government to refrain from interfering in the work of the Khmer Rouge Tribunal, to respect its independence and to lend its full cooperation whenever this cooperation is needed. The Cambodian government should provide it with its full share of funding and appeal to the international community to make adequate contributions for its functioning.
