Cambodian Human Rights Action Committee

(Ed. Note: The following is a press release issued by the Cambodian Human Rights Action Committee on 6 January 2000. The committee is a coalition of 17 human rights organisations. It is concerned that the current plan for a tribunal to try perpetrators of serious crimes during the Khmer Rouge period will fail to bring justice and peace to the Cambodian people.)

While the most recent draft law on the tribunal under consideration by the Cambodian government provides for certain important elements, such as the rights to counsel and appeal and the cooperation of the Royal Government of
Cambodia to arrest indicted suspects, it does not ensure the most essential characteristic -- independence of the court -- and leaves numerous procedures and definitions unclear.

The Cambodian Human Rights Action Committee highlights some needed improvements to the draft law:

Clarify "most serious violations"

The scope of the tribunal remains vague by targeting "senior leaders of Democratic Kampuchea and other persons responsible for the most serious violations" of law.

This opens the possibility for tribunal opponents to use the unclear scope to undermine the tribunal, by showing that it can apply to numerous levels of the Khmer Rouge and thus threatens Cambodia's year-old peace.

All judges, prosecutors and chief administrators appointed by U.N.

Cambodia has a history of politically-influenced judicial appointments. Therefore, in order to protect independence of judicial decisions and activities, U.N.-controlled appointment for all key tribunal posts, whether foreign or Cambodian, is essential. As written, the draft only provides the U.N. a partial role in selection of foreign judges and prosecutors.

Key Cambodian posts matched by foreign counterparts. In order to ensure independence and professional performance of the court, all key Cambodian posts, including judges, prosecutors and administrators, should have U.N.-appointed foreign counterparts. This would, at a minimum, provide the Cambodian chief administrator with a foreign co-administrator and
investigating judges with foreign co-investigating judges, as well as maintain the mixed Cambodian-foreign prosecutorial and judicial teams as already planned.

Remove or clarify role of investigating judges

The current draft law fails to comprehensively define the role and number of investigating judges. Investigating judges in Cambodia, which originate from the French legal system but do not function as in the French system, have posed a constant threat to due process and presumption of innocence in Cambodian courts. If they are included in the composition of the tribunal, they must adhere to a role that allows for due process.

Security for trial participants

Legislation has not yet been drafted to provide for the protection of witnesses, victims, lawyers, defendants and other tribunal participants. Since fear for personal security could influence decisions of the participants, a protection program, which is managed by both Cambodian and U.N. personnel and makes long-term protection available, should be incorporated into legislation governing the tribunal.

Internationally-accepted rules of procedure

A tribunal to hold accountable the perpetrators of some of the most serious crimes in modern Cambodian history should employ procedures which meet international standards. Existing Cambodian criminal procedure law, which the current tribunal plan mimics and refers to on numerous occasions, fails to meet such standards in many regards. One example lies in the appellate courts' role as retrial courts rather than as true courts of appeal, a persistent flaw in the Cambodian criminal justice system.

Decisions of co-prosecutors made by consensus

The draft law should clarify rules of decision-making for the co-prosecutors by requiring consensus for all decisions.