From 1975 to 1979, the regime of Democratic Kampuchea led by Pol Pot oversaw the deaths of approximately 1.7 million people, or one fifth of the population of Cambodia. Now, over twenty-five years after Phnom Penh fell to the "Khmer Rouge" on April 15, 1975, it seems likely that at least some of those who presided over the Cambodian genocide will be brought to trial and punished for their crimes. The United Nations has signed off on a formula to conduct the trials in Cambodian courts with international assistance; a draft tribunal law is making its way through the Cambodian legislative process; and the prime suspects, with the exception of Pol Pot himself, who died in 1998, are within the reach of the courts. This situation could not have been foreseen ten, or even five, years ago, and although the outcome is still unclear, there is more reason than ever to be optimistic about the prospect of bringing the architects of the Cambodian genocide to justice.

This article examines some of the legal and political components of prosecuting the Khmer Rouge for genocide and war crimes in Cambodia. It outlines some of the compromises that have been reached along the way, and suggests some ways in which a genocide tribunal in Cambodia will have an impact on other aspects of Cambodian society.

Legal Challenges
The tribunal law was first drafted by the Cambodian government in 1999, and in July 2000, the United Nations and the Cambodian government finalized details of a draft accord for the trial of former leaders of the Khmer Rouge regime. Since that time, the draft law has been awaiting passage by the various branches of the Cambodian government. On January 2, 2001, the Cambodian National Assembly unanimously approved the draft law to establish an extraordinary chamber to the try Khmer Rouge leaders. The draft law was passed on January 15, 2001 by the Cambodian Senate and on February 12, 2001 by the Constitutional Council, which flagged a technical discrepancy for correction. Since Article Three of the draft law proposes the death penalty as the maximum punishment when there is currently no death penalty under the Cambodian Constitution, the Council sent the draft law back to Parliament to be amended before it is sent on to King Norodom Sihanouk for his signature, which represents the final stage in the legislative process. After four months of little apparent progress, Prime Minister Hun Sen announced on June 19, 2001 that the Council of Ministers was wrapping up its work on the draft law, and would be sending it back through the Parliament, the Senate, and the Constitutional Council before having it ratified by the King.

As this article goes to press, Cambodia and the UN are engaged in another round of exchange. On June 27, 2001, the United Nations issued a press release stating that the current draft tribunal law "has to be in conformity with a Memorandum of Understanding to be signed between the United Nations and the Government of Cambodia." To the extent that Cambodia has not yet signed this Memorandum of Understanding, there are still several steps remaining before a trial can be convened.

Ever since there was any reason to hope that genocide perpetrators in Cambodia might stand trial, questions about the legal instruments that would be applied in their cases have been a hot topic. Could Cambodia’s domestic laws handle the magnitude of the crimes in question? Could the body of international criminal law, still in its infancy, be used to prosecute cases in Cambodian courts? What sorts of evidence would be admissible? How would the tribunal deal with the amnesty granted in 1996 to Ieng Sary, Pol Pot’s Foreign Minister, by King Norodom Sihanouk? What would be the effect of Cambodia’s notoriously corrupt judiciary on a genocide tribunal, and vice versa?

The draft law to set up the tribunal consists of forty-eight articles, and is largely based on Cambodian civil code. Article One states, "The purpose of this law is to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979." In addition to international crimes such as genocide, war crimes, and breaches of the Geneva Convention, other crimes that were part of Cambodia’s criminal code circa 1956 may be prosecuted by this tribunal, including homicide, torture, and religious persecution.

The composition of the court reflects careful compromises struck between the Cambodian government and the United Nations, neither of which wanted to cede too much authority to the other. The Cambodian tribunal will involve a combination of Cambodian and U.N. appointed prosecutors and judges who will indict defendants together, and reach consensus on individual verdicts. The trial court will include five professional judges: three Cambodians and two foreigners. The appeals court will be composed of seven judges: four Cambodians and three foreigners. The Supreme Court will have nine judges: five Cambodians and four foreigners. This formula was designed to ensure that there be a a majority of Cambodian jurists, and that judgments be fair and impartial.

In addition to the negotiations between the Cambodian government and the U.N. over the composition of the court, Cambodia’s capacity to hold fair trials in its courts has been scrutinized in other ways as well. Various important trials that have taken place in Cambodian courts over the past several years have been seen as diagnostic. Khmer Rouge commander Nuon Paet was legitimately convicted and sentenced to life in prison for his role in the kidnapping deaths of three foreign tourists in 1994. (However, higher-level Khmer Rouge commanders implicated in the same murders were never put on trial, and currently serve in the military.) In 1998, human rights workers who had been arrested for protesting toxic waste dumping in Sihanoukville, were subsequently released due to lack of evidence. These trials were scrutinized by international observers for signs of corruption, lack of due process, and political influence, leading many to conclude that the presence of international observers is essential to ensuring credible trials of Khmer Rouge leaders.

Another approach to boosting the capacity of the Cambodian courts was that taken by the Cambodian Genocide Program, based at Yale University and funded in part by the U.S. State Department [www.yale.edu/cgp]. In 1995 and 1996, the Program conducted legal training courses in Cambodia to improve the ability of Cambodians to pursue and promote legal remedies for the crimes against humanity they suffered at the hands of the Khmer Rouge. The participants were about twenty people from Cambodian human rights organizations, the Cambodian Ministry of Justice, the Ministry of the Interior, and the Foreign Ministry, the Council of Ministers, and independent legal advocacy groups. The course included an introduction to the major sources of international law, a grounding in human rights law, individual responsibility under international law, and general principles of criminal procedure and evidence. The course also covered the two ad-hoc criminal tribunals for the genocidal crimes committed in Rwanda and the former Yugoslavia, for the purpose of comparison.

Political dimensions of the process
It was only four years ago that a trial of Khmer Rouge leaders began to seem possible. In April 1997, nearly twenty years after the genocide, the United Nations adopted resolution 1997/49, which requested the Secretary General, through his Special Representative, to examine any request for assistance in responding to past serious violations of Cambodian and international law. The Cambodian government followed with a letter dated June 21, 1997, signed by the then co-Prime Ministers, Prince Norodom Ranariddh and Hun Sen, requesting the assistance of the United Nations and the international community in "bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979."

A year after he received this letter, Kofi Annan appointed a Group of Experts to assess the feasibility of bringing Khmer Rouge leaders to justice. Sir Ninian Stephen, from Australia, served as Chair; Judge Rajsoomer Lallah, from Mauritius, and Professor Steven Ratner, of the United States, completed the Group. Their report, published in February 1999, recommended the creation of an international tribunal, along the lines of the ad-hoc Tribunals for Rwanda and the former Yugoslavia, to judge the crimes of the Khmer Rouge period, as well as a truth commission to establish the facts of what occurred during that time. In the two and a half years since then, there have been protracted negotiations between a Cambodian government task force on the one hand, and the U.N. on the other, regarding the composition and scope of a genocide tribunal for Cambodia. (There was never any significant momentum in Cambodia behind the idea of a truth commission.)

The plan agreed to by the Cambodian government and the United Nations reflects a series of political compromises, and so does not necessarily resemble the kind of court suggested in the letter signed by Prince Norodom Ranariddh and Hun Sen in 1997. That letter stated, "We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be given to Cambodia." But the Cambodian tribunal, as it is currently envisioned, is neither modeled on the ad-hoc tribunals in Arusha and The Hague, nor will its administrative structure follow these examples. Why? Part of the answer lies in the changes that have taken place in the Cambodian political arena. In July 1997, Hun Sen’s Cambodian Peoples’ Party effectively ousted Prince Ranariddh’s FUNCINPEC party from the shaky coalition government that had been in place since the U.N. sponsored elections in 1993. Although Prince Ranariddh was persuaded to assume the post of President of the National Assembly, Hun Sen effectively took control of the policy making process over the tribunal. After a series of strained meetings with UN officials over the shape of the tribunal, Hun Sen wrote to UN Secretary General Kofi Annan in September 1999 outlining three options for UN involvement in a Khmer Rouge tribunal:

1) Provide a legal team and participate in a tribunal conducted in Cambodia's existing courts;

2) Provide a legal team which would only act in an advisory capacity to the tribunal;
or

3) Withdraw completely from the proposed tribunal.

To the extent that Cambodia’s most prominent opposition party, the Sam Rainsy Party, persistently argued for an internationally run tribunal, Hun Sen’s government has held steadfast to the idea of a Cambodian-run tribunal.

Other political dynamics have affected the tribunal process. The United States government, while seeking to keep a low profile in the negotiations, was working hard behind the scenes to help the U.N. and the Cambodians find common ground. The "super majority" formula that will allow Cambodian judges to be in the majority, while still preserving the international judges’ ability to influence judgments, was proposed by Kent Weidemann, the U.S. Ambassador to Cambodia. Similarly, in April 2000, U.S. Senator John Kerry mediated a stalemate in discussions over how the tribunal will handle indictments. As a result of Senator Kerry’s intervention, both sides accepted the idea of a panel of judges-- three Cambodian and two foreign—who would rule on disputes regarding indictments. Four judges would need to be in agreement to block a case from proceeding.

A particular point of contention concerns past U.S. military and political involvements in Cambodia. Various individuals, including Benson Samay, the lawyer of senior Khmer Rouge commander Mok, American lawyer Ramsey Clarke, and even Hun Sen, have stated that America’s actions in Cambodia both before and after the genocide (including the secret bombing of Cambodia in 1970, and the U.S.’s support for the Khmer Rouge after they were ousted in 1979) should fall within the scope of the tribunal. Notwithstanding, the draft law states that the tribunal will only seek to prosecute "senior leaders of Democratic Kampuchea and those who were most responsible for the crimes … committed during the period from 17 April 1975 to 6 January 1979."

The Cambodian government clearly has no intention of focussing on the alleged culpability of international actors in the genocide. The most recent delay in processing the tribunal law may be due in part to Cambodia’s cautious approach to the new Bush administration, which may not be as supportive of a genocide tribunal as its predecessor.

The Chinese government, like that of the United States, has reason to worry about the information that might be revealed in a full hearing about the Cambodian genocide. China was the largest financial supporter of the Khmer Rouge, both while they were in power and after they regrouped on the Thai border in 1979. China has steadfastly positioned itself against the idea of a genocide tribunal in Cambodia, and threatened to thwart its establishment by using its veto power in the U.N. Security Council. In addition, the Chinese political and economic presence in Cambodia has been steadily increasing, causing many to fear that the tribunal plans might be sacrificed in the interest of good relations with China.

A trial of former Khmer Rouge leaders in Cambodia is much more than a complex foreign policy issue. A credible genocide tribunal represents an opportunity not only to address past injustices, but also to strengthen the role of the judiciary in peacetime Cambodia. Convening a trial that will establish the truth about what occurred between 1975 and 1979, and hold accountable those who were responsible, will affect all Cambodians. Survivors of the genocide will know for the first time that their suffering has been acknowledged and taken seriously by the world. Younger Cambodians will gain a better understanding of their country’s turbulent history. And by subjecting the events of the past to international rule of law, Cambodia’s leaders will be publicly challenged to end the current culture of impunity.