Is It Worth It and for Whom?A Public Discussion held in Phnom Penh, 17 November 2004
Editor's Note: We would like to thank Samantha Brown of Agence France-Presse and Youk Chhang and the Documentation Center of Cambodia for providing this transcript, and to DCC volunteer Isaac Tabor.
The transcript of this taped discussion has been edited because of lapses in the audio quality and to omit certain redundancies that come with extemporaneous speaking (indicated by .).
Transcribed by Documentation Center of Cambodia volunteer Isaac Tabor.
Michelle Vachon: Thank you very much for coming. My name is Michelle Vachon; our moderator tonight is Rachel Snyder; she's been a writer for 10 years and edited First They Killed My Father. She relocated to Cambodia about a year ago and . is working on another book on the garment industry that will be called A Journey through the Parts of Denim. She has also written for National Geographic, American Heritage and Rolling Stone.
Rachel Snyder: The theme for tonight is, as you know, "is the Khmer Rouge [KR] trial worth it and for whom." The issue of monitoring costs has been contentions for many years, of course, and so as the tribunal draws closer, the Overseas Press Club thought it would be a prudent idea to have a distinguished panel discuss things like why we need to have a trial, who can benefit from the trial, and will the cost be worth the outcome. We have three panelists and a translator; they'll talk for 10 or 15 minutes each and then we'll open the discussion up to a question-and-answer session at the end.
We'll start with Steve Heder; I'm sure his name is familiar to many of you. He first came to Cambodia in 1973 as a journalist for Time and since then has researched Cambodian politics and human rights for a number of organizations including the UN, the US State Department, Amnesty International and the Holocaust Museum. He has published a good number of books on the situation here in Cambodia; the most recent is Seven Candidates for Prosecution. He's also published Propaganda, Politics and Violence in Cambodia, and Kampuchea: Occupation and Resistance. He holds a PhD in politics from the University of London and is currently on leave from his professorship at the School Oriental and African Studies in the UK.
Helen Jarvis first visited Cambodia in 1967 and didn't come back for another 20 years, at which point she returned to help in the reconstruction of Cambodia's international library. From 1995 to 2001 she was a documentation consultant for the Cambodian Genocide Program and in 1999 she became the advisor to Deputy Prime Minister Sok An, who is the chairperson of the Cambodian task force on the KR trials. She has a PhD in Indonesian studies and has written a co-authored book that will be out any day now called Getting Away with Genocide, on justice and the Khmer Rouge tribunal. She also has the honor and distinction of being an Australian/Cambodian citizen, so she's here not only as an expert but as a citizen of this country.
And finally we have Keo Remi; he is currently a parliamentary member of the opposition party. Remi himself was a victim of the Khmer Rouge; he lost seven siblings during that time. In 1986 he was living in a refugee camp on the Thai-Cambodian border and became a member of the FUNCINPEC party. Shortly after that he went to the States to study and returned to Cambodia in 1991. From 1998 to 2003 he was on the steering committee of FUNCINPEC that was related to the Sam Rainsy party. We'll start with Steve.
Steve Heder: I'm going to try - but not necessarily answer - to address the questions that are pertinent, and I think that to do that we have to begin with two starting points. First, there is an irrefutable argument that the tribunal is necessary and certainly better than nothing. Otherwise, all the surviving men and women responsible for the crimes committed under the Communist Party of Kampuchea will either go unpunished or - possibly - remain indefinitely in untried detention, and these are totally unacceptable outcomes. The second is that although there is vast and probably mostly already lost potential for improving on the law and the agreement with the UN, there is nothing fundamentally wrong with them, at least on paper, either in human rights terms or truth-seeking terms. At the same time, we have to recognize five big problems.
The first is that the tribunal will probably conduct only approximations of fair trials, because of the real potential for illegal interference in the trials by politicians, including Cambodian government officials and diplomats representing other governments. I say this based on predicting the future from past experience, which is that the Cambodian judiciary is so lacking in impartiality and independence that a fair trial in politically charged cases has been virtually impossible. I can think of only one instance in the past decade where a court in Cambodia trying a politically-sensitive case was allowed to do more or less the right thing: to weigh the evidence and make judgments based on the evidence alone. This historically-based concern about unfairness in political cases is born of bitter experience that the dominance of politicians over the courts is beyond short- or intermediate-term correction by capacity-building programs. These have been attempted in Cambodia for more than a decade - so far with negligible results - as most donors now increasingly realize and publicly state. In this regard, I would emphasize that the fundamental problem is not a lack of knowledge or training within the judiciary, although more of both is sorely needed. The problem is the determination of key political players to prevent training and knowledge from being put to use against their fundamental political and economic interests. I won't belabor this point, but simply say that the ongoing shenanigans revolving around the murder trial of union activist Chea Vichea and the recent Bar Association election indicate things haven't changed in this regard. At the same time, however, both these cases suggest that left to do their jobs in peace as it were, Cambodian judges and lawyers are perfectly capable of weighing up evidence and of exercising independence, and indeed they are eager to do so, again, given the chance. That's the first big problem.
The second problem is that there is good reason to believe that an intention exists to ensure that the list of suspects to be tried in the Extraordinary Chambers (EC) is politically predetermined to shield many perpetrators (a few now in positions of political authority) from embarrassing scrutiny, if not from prosecution. Again, formally, the texts of both the law and the agreement can be said to be acceptable, if not unproblematic. Although there are problems with the agreement's and law's predetermined focus on senior leaders, I think this is defendable, especially since the law also makes possible the prosecution of a second category of suspects, those who were not senior leaders but were among those most responsible for CPK crimes. The problem is the stated and unstated intention to limit prosecutions to literally a handful of CPK senior leaders and a few other notorious perpetrators, most notably leading cadre of the CPK central security office, S-21 (or Tuol Sleng). This is a problem because the evidence suggests that those most responsible include other CPK cadre who could, and perhaps should, be candidates for prosecution.
You are all no doubt wondering how many, so let me give you my best guess. When the CPK was in power, its senior leadership comprised some 20-30 Central Committee members, and its corps of powerful cadre from the central down to the local level numbered perhaps 1,000 persons. Of the 1975 leadership and corps of cadre, many fewer than half survived the purges that began to devastate the Party in 1976 and proceeded in waves in 1977 and 1978. Quite a few of those who made it through to the end of the regime have since died. If the jurisdiction of the EC were to go down to the district level, it seems to me likely that no more than a few hundred are still alive. The definition of "senior leaders" and this notion of "most responsible" and the evidence will determine how many of these could be legally targeted for intense investigation. But my very rough guess is that no more than 60 cases would fit into these categories, including perhaps 10 senior leaders and 50 most responsible subordinates. That's my take on numbers.
I'm sure the next question people will be interested in is who these people are. To a considerable extent, I'm already on public record in this regard, but let me repeat the main points of what've I said repeatedly in print and in interviews. The Documentation Center of Cambodia recently republished a slightly revised version of something I wrote a couple of years ago entitled Seven Candidates for Prosecution, which named seven senior leaders then alive against whom there was evidence of culpability in the Center's archives of CPK documents. Six of them are still alive and still in the prosecution frame because the cases against them continue to build: Nuon Chea, Ieng Sary, Khieu Samphan, Ta Mok, Sou Met and Meas Mut. Of course, as that publication said, there is also massive evidence against S-21 chairman Duch, which is continuing to mount up, so he is certainly a candidate.
On the other hand, some years ago Craig Etcheson, who is another Khmer Rouge researcher, and I issued a statement declaring that we were aware of no evidence implicating Hun Sen in CPK crimes, a statement you can still find on various government websites. I just want to take this opportunity to say that several years on, tens of thousands of pages of documents on, and several thousand interviews on, this statement is still true. I would go further and say that to my knowledge, which is pretty good, there is no one in a position of significant power in the current government who would fit into the category of others most responsible for CPK-era crimes. To my mind, that's a myth, a red herring, a hope of some Cambodians and foreigners whose opposition to the current government on other grounds - how shall I put it -clouds their judgment and tempts them to engage in a witch hunt. I would add that those who might fit into this category of others most responsible are neither notorious nor otherwise well known. People in this room have probably never heard of any of them. This points to my conclusion that even if the truth, the whole truth, and nothing but the truth about the others most responsible were to be exposed, I don't think it would bring the government tumbling down, nor do I think it would tear society apart. Again, the possibility of following the letter of the law and spirit of the agreement exists.
But there's a third problem, which is a much broader issue regarding the exposure of the truth. That is if the trials in the EC are unfair and if its prosecutions are limited by political factors instead of the text of the law, the trials themselves are not likely to add very much to our knowledge and understanding of what happened under CPK rule and why. Above all, they are not likely to grapple well with what I see as one of the main historical questions surrounding CPK crimes, namely, the extent to which the crimes were either: a) the result of a conspiracy hatched by certain or all senior leaders, a conspiracy in which they gave orders to subordinates who carried them out; or b) the crimes were the result of abuse of delegated authority by their subordinates, acting without orders from above or even contrary to orders from above, without the knowledge of their superiors. My own view, based on the evidence so far, is that the crimes included large elements of both, and this fact needs to be revealed, analyzed and understood if we are seriously to advance legal, historical and moral accountability for CPK crimes. It's also my view that dealing with this issue will help us better confront perhaps the most common debate about the deep causes of CPK crimes: were they primarily the result of the influence of a foreign ideology or of local cultural proclivities? Now, even the fairest and most comprehensive trials wouldn't give us the answer to this one, and similar or analogous debates continue among those trying to explain the Holocaust, genocide in Rwanda and mass murder in the Soviet Union, regardless of whether there have been fair accountability trials or not. My point is that the fairer and more comprehensive the trials in the EC, the more likely they are to contribute something new and useful to answering such fundamental "why" questions.
Here I want to return to my earlier comment that a predetermined focus on senior leaders is problematic but defendable. I don't think it's necessarily problematic to establish an accountability principle that if you are a senior leader, you are culpable, even if you are only a little bit guilty, even if you are much less guilty than some colleagues among fellow senior leaders, or even if you are much less guilty than some lower downs. Being less guilty than others doesn't make you innocent, and being a senior leader, especially a well-known and influential one (even if not the most powerful one), gives you certain special responsibilities. However, what I do think is problematic is to let a predetermined focus on senior leaders lead inevitably to giving an impression that all or almost all of the crimes were the result of a top-down conspiracy, if - in fact - that was not the case. Conversely, dealing squarely with such issues may result in embarrassing a handful of prominent politicians. Even if they could not be described as most responsible, they could have to face facts they would very much rather remained unknown. The same applies to many other former CPK who are neither powerful nor prominent, and whose crimes I think are the key to understanding why lower-downs killed many fellow Cambodians in such large numbers in so many places. Unless Cambodians and others get honestly and introspectively to the heart of this issue, the legacy of CPK crimes will remain very heavy. Again, I don't see the tribunal as taking us very far down this road, even in the best of scenarios. My concern is that it not be misused to preclude further honest introspection.
The fourth problem is that unless the trials in the EC are fair and are allowed to follow the evidence wherever it leads, regardless of political considerations, they will probably have little or no immediate positive impact on the human rights situation in Cambodia, including judicial and legal reform. Simply put, if the trials demonstrate that it is possible for the judiciary in Cambodia to act independently, impartially and fairly, they will have a positive impact. But if they do not, the impact will be negative, precisely to the extent that they demonstrate the power of politicians to sabotage and subvert even the most closely watched trials, yet again overriding the knowledge, training and desires of those in the court system who favor truth and justice, and who would benefit enormously from participation in the EC, but whose experiences would only benefit society once political constraints relaxed. In the meantime, the most negative immediate impact would be if the proceedings were not fair, but they were to be declared fair, because that would be deeply demoralizing for fair trial advocates.
The fifth problem, as we know, is that the international community wants to do the whole thing on the cheap, which is going to exacerbate all the tribunal's problems. Of course, spending more money is absolutely no guarantee of a good tribunal, but spending less money certainly undermines the possibilities for making the tribunal better.
The bottom line for me is that if the government is courageous and works hard, and if everybody who wants the tribunal to succeed is courageous and works hard, then the chances of the tribunal being worth every penny the international community is willing to spend are good. I think it's no secret that I'm not the most optimistic person in this room about this, although I would guess that there are quite a few people here who are no less pessimistic than I. But I also have to say it would still be a positive and worthwhile outcome if, as a result of the process, some people concluded that the accounting provided by the EC was an imperfect and incomplete one, leaving many questions unresolved and therefore requiring further attention, research, investigation, review and debate, legal and historical. In fact, even in the unlikely event that the trials are totally fair and approach questions of culpability without regard to political considerations, that shouldn't be the end of the story. The notion of "closure" is antithetical to the pursuit of truth and understanding, and therefore, ultimately to justice and prevention.
Helen Jarvis: Thank you. I'm speaking here in a personal capacity; I am working with the government task force on the Khmer Rouge trials, but I'm not a spokesperson with the government. I would like to talk a little bit about the issue of what is it that the Cambodian people, government and others have longed for: that the tribunal should happen. I'm starting with the second question first I suppose: "for whom is it worth it?" I want to start by thinking about the general public and I recall that there have been a number of surveys, quite limited in number and sometimes quite limited in methodology, but the good thing is that they have been clearly consistent in their outcome. I haven't gone back specifically over this material myself, but according to Craig Echteson, there have been something like 10 surveys taken over the last decade that have fairly consistently come out with 80% in favor of a legal accounting. I recall in particular the Center for Social Development surveys.which came out in response to the question of whether a trial would be more advantageous or disadvantageous for national reconciliation; it came up with 82% [in favor]. People who've been following this issue may have heard reports in the last week or so of the survey carried out by the Khmer Institute for Democracy, in which 97% answered yes, they wanted the trial.The Documentation Center has had a number of.surveys...I haven't gone into this as an area of my own research, but I have not heard of any surveys that have declared that the majority does not want the tribunal.There has been no nationwide referendum or hugely scientific and systematic poll in recent years.
However, there was a fairly extensive survey taken in 1983 by the research committee of the Renakse International Front. Between 1982 and 83, I went to 19 provinces and reported; it was in the format of what one would refer to as petitions, where people wrote down what had happened to them, or people in their village or in their factory or particular units, and reported how many people had been killed in their family and so forth. Now there's a great deal of uncertainty about this issue and undoubtedly a number of [instances of] double-counting; people would have reported "my sister was killed" and somebody else would report that the same person was killed. But the point is that more than a million people did actually affix their finger and thumb prints to something that called for the UN to deny the recognition of the KR and to carry out some form of legal process. So, that's probably the most extensive survey.
I also wanted them to look at the issue of the government's position of the period. And if we go back even before the establishment of PRK, to the period when Pol Pot was still in power, the Renakse (when it was established in December 1978) called for some sort of accounting for the people who had, in the language of the time, a heavy blood debt, while at the same time calling to cleanse those who confessed and tried to rebuild the country. So that was the official position of the front when they came in and overthrew the KR.
In July 1979, Decree Law Number One, the first decree law of the new regime, established the people's revolutionary (PR) tribunal to try what was called the Pol Pot/Ieng Sary clique for the crime of genocide. People are probably familiar with the fact that in August 1979 there was a trial here of those two people in absentia, and that trial heard reports from 8 different commissions and texts from maybe 39 witnesses, and the team went out and looked at sites in several provinces. There was a great deal of criticism of the tribunal, and it's often been dismissed by the term "show trial." This is a complicated issue and we haven't really got time to go into it right now. I wonder what characterizes a show trial, how many trials around the world every day are show trials, so I don't think the weaknesses of the PR team are in any way unique. The point I'm trying to make is not to argue as to the propriety or even the veracity of the PR team, but to say that this was an effort that was made in the early days after 1979, in the early days after the overthrow of Pol Pot, and it reflected a fairly major commitment of the government at the time with extremely scarce resources to do it, and to carry out that trial I think indicates that it was taken as a serious question. Something that a lot of people probably don't know is that the government continued to call for an international trial throughout the 80s. The 79 tribunal did not get the recognition that the government I think expected at the time. In my view this was probably more for political than legal reasons. Although there were legal weaknesses with the trial, they weren't recognized and neither was the tribunal. But the government and the Renakse and other organizations throughout the 80s continued to hold conferences and meetings and send petitions, and go off to peace conferences around the world and call for a trial.
In September 1986 Hun Sen wrote to the [UN] secretary general and called for an international trial. Even before that, in 79 and 80, the documents for that trial were sent to the UN, so there were numerous appeals. I think it's important to make this point because many people keep saying that what's happening today is something completely new.but I don't hold to that position. There were also a number of international juror organizations, scholars, and activists throughout the 1980s who made some attempts to hold some kind of international tribunal. There were attempts to bring the case in front of the international court of justice. A huge amount of effort went into trying to get one of the state's parties that may have had an interest in the case to file a charge under the Genocide Convention, but these fell on deaf ears.
The third group I think is interesting to look at has been the National Assembly. In 1983 it adopted the resolution supporting the findings of the research committee that I referred to earlier. In an entirely different political setting, in 2001 on two different occasions (in January and again in July), the Assembly passed the law on the establishment of the EC. The second hearing was required because there was a need for technical amendment; the bill went back to the Assembly for a second round and was adopted unanimously in both cases. Then again this year, there were two votes in the Assembly. On the 4th of October, the ratification of the agreement with the United Nations passed by 107 votes out of 107. The following day the amendments to the law, which brought the two documents into synchronization, were passed by 96 votes out of 98. So I think there's been a fairly consistent expression of the government position.
Answering the question of "is it worth it," I suppose one has to think of that not just in monetary terms, but in terms of effort and emotional stress, the diversion from other tasks, and the point that Steve talked about, the social unrest or threat to the social fabric. On the money question, I know that some people lately have been saying it would be far better to spend the currently estimated $57 million on something else and that the Cambodian people need a whole lot of other things before they need a trial. I would say that these are not either/or, and that by not having a trial, I don't think we're going to get $57 million extra to do whatever it is people think needs to be done. I think that the powers that hold money for development are not necessarily the same ones that are going to make a commitment on the trial. I think it's a political question.
It's also related to the historical involvement of different countries. And perhaps their other experiences and their own experience in the case of, say, Germany, or their own involvement at other stages in the Cambodian struggle or Cambodian situation. So I think that by not doing it, were not going to get more money for something else. And I think that also one could always question spending, and any expenditure always has an opportunity cost, whether it's between sectors or in sectors. If we spend more on health, do we therefore spend less on education? If we spend more on primary schools, do we therefore spend less on secondary schools? There are debates, even say within each sector, and I think there are also debates that people could come up with, that could pose the question of why the money should be spent in Cambodia at all. Are there not more pressing crises around the world involving life or death today? People could certainly make those arguments. One could also look at how society has decided to spend money, or how governments have decided to spend money on armaments, on stores, on advertising, leisure. There are a number of "holier than thou" arguments one could make about where money could be spent, so I don't think it's a very constructive decision to focus on the $57 million and say that's taking away from doing good in Cambodia or some other part of the world.
As to whether it's worth it in other non-monetary terms, I think that this has been an issue and a focus of Cambodia for so long, that to turn around now and say it's not worth it or perhaps not give the money, and say "oh sorry, we can't afford it," would itself cause an extremely damaging situation. I think also the expectations have been raised that Cambodians have been forgotten for many years, and there were tribunals in other parts of the world. For better or for worse, and Cambodians should have theirs. Now, I think we've spent so long in getting somewhere, we've had agreement between UN and Cambodia painfully and slowly achieved, and as I say, we have unanimity in the National Assembly. I think the fact that Cambodia itself has been involved in the planning of this tribunal has been in contrast to any of the other international tribunals or mix tribunals, all of which have come in as a package from outside. That has made it slow, and perhaps made it painful, but I think that it has made it possibly a more robust model.
Keo Remi: First I would like to say thank you very much to the Overseas Press Club of Cambodia which has invited me tonight to discuss the KR trial. During the KR regime, in 1975, I was 14 years old. I and my family were evacuated from Phnom Penh to Battambang province. On the way, I myself saw the KR killing people, government officials, and children on the road. There were two kinds of killing during the KR time. First of all, they did not give enough food to Cambodian people, and a lot of people faced starvation. And the second kind of killing was a daily show, Oukoubah [justice] day; they wanted to kill the wives of the people they were going to kill. The two kinds of killing led to many deaths.
Seven of my siblings and my father were killed. A lot of my other relatives were also killed during KR time. After the KR regime was overthrown, I saw some people who were working at the National Assembly and Cambodian court who were former KR, so they still exist within the Cambodian power structure. So as I mentioned earlier, in Cambodia the trial law is only for the senior leaders. This is different from the Nazi Hitler trials. They also tried senior leaders, military and police who collected people and brought them to be killed.
Regarding the issue [of whether].Cambodian judges and prosecutors will be unable to do the job, the judicial system in Cambodia has been controlled by political parties. So for Cambodia, I would like to make a generalization. Our system is one of proportional representation. People from the principal party must be chosen to fill the seats that people elected, and it is very difficult to find people to do that job. So if they want to have the job, they have to join the political party.It is even difficult to find independent judges and independent prosecutors, in my view. I have said that we should have a trial for KR leaders. Through the KR trial.maybe we can find justice. for more than two million people who died during KR time and certainly find out who was behind the KR regime, who interfered with Cambodian society and let Cambodian people die. Most of all, I think that the Cambodian judges and prosecutors can learn from foreign judges about the trial process, and after that, Cambodian judges.can make improvements in Cambodia. The last point for the trial is that we send a message to the criminals and country leaders everywhere in the world.If not, we cannot not find justice.Another point is that if we do not have trials, the culture of impunity will continue.
One other point. Some politicians have said please use the trial money to develop the country; do not use it for a KR trial. In my point of view, please don't use the money [intended] for the KR trial for another option like development. Please try the KR leaders, if [the trials do] not [go ahead], the culture of impunity will continue. And if we do not do this, people will not understand about social justice. So what they have said about not using money for a KR trial is because they want to avoid a trial because they were involved in the killing.
Rachel Snyder: Thank you. We're going to open for a couple of minutes for questions, if anybody has any questions.
Audience Member: Will it just be political leaders or also the executioners who are on trial?
Steve Heder: Part of the answer is that political leaders would seem to be threatened. This is not actually talking about hands-on killers. In my gut feeling, they were probably not in the framework. I think when they were talking about others most responsible, they were talking about people who had decision-making authority at places and at levels below the senior leadership, but they weren't the people who did the actual killing. I think generally the evidence suggests that those who did the hands-on killing were not the people who made the decisions.
Helen Jarvis: I think that we need to add that being a senior leader is not a crime. It's senior leaders and those most responsible, but people still need to fall into the framework of how they committed those specific crimes.
Audience Member: Kofi Annan came out this week saying he wants $19 million from the bank for first year's trials. You've got millions from the Australians. What are the chances of getting this money?
Helen Jarvis: The question is how much money is there and how are we going get it, but it was also framed in specific numbers. The UN technical team has not come back for a visit to finalize the budget and there's a couple of terms that have not been signed on, but the current figure is $67 million that has been requested for around three years. The only country that has made a concrete commitment is Australia, which is $3 million Australian, currently about $2.2 million and rising, but that's not going to do it. There's an awfully long way to go, and speaking personally, I think the recent announcement by the US Senate Appropriations Committee was a bit depressing, about what might be given by the US. I hope that that won't put off any other countries from contributing. Other concrete figures have been given, although the secretary general's report does mention some. It's also important to note that the report, although just released in the last few days, is dated 12 October, so it's actually probably not from today in the big terms of commitments. But I think most countries were waiting until Cambodia had completed its legal obligations, which were completed on the 27th of October, and now there should be another mission from the UN to get the budget absolutely finalized and a formal appeal made. One can only hope that we can go ahead. We have a target ahead of $60 million, which is not a great deal when compared to the money being spent on other tribunals.
I think it's fair to say that to have an international tribunal or mixed tribunal is costly. Particularly the international judges' salaries and the non-salary components are more potent. And some other senior officials -investigating judges and prosecutors - are costly if they are going to be under UN salary scales, which is envisioned. The secretary general has said that he does not think it's appropriate for the senior judicial officers to be seconded from different countries, which some countries had suggested they might do. If they are all to be at full UN rates, a lot of people know that is costly. There will be other costly components. The defense will need to be funded; it is unclear how many defendants there will be and how many will request court assistance. There are security considerations, and especially the UN has a high tendency for security, and has suggested that after the Baghdad bombings of last year, they will be very careful about security for the international staff. There are the usual things that go with international involvement like cars and computers. There will be very costly elements for translation and interpretation, and there are three official languages in the court: French, English as well as the official Khmer. Documents need to be translated, which is going to be extremely costly.
Audience Member: What's the worst case we can have? If all goes wrong, how's it going to go wrong? How can we see that? And how about the best case?
Steve Heder: This is the first time I've ever been accused of campaigning for the best case. I don't think I have an answer to your question, which is "if it all goes wrong, how will it go terribly wrong?" But my general sense of that is the danger that the investigation, the calling of witnesses, and the following of leads appear to be leading in a direction that people in positions of authority or people under their protection see as threatening, then some kind of allied obstacle will arise and that will then stand in the way of the smooth functioning of the whole process. Exactly how that will happen I wouldn't want to speculate, but that's the kind of thing that seems to me is most likely to happen, and is likely to happen on the basis of a rather over-sensitive - one might say paranoid - set of presumptions of what could go wrong for people in positions of power. And we wouldn't necessarily see that in obvious ways. It might be a number of little things that would add up to something big.
[ Inaudible question ]
Helen Jarvis: I think that's a very interesting question. Perhaps people could pick up the booklets we have here, "Introduction to the KR Trials," which is published by the secretary to the task force. When we had our first draft of that, we went to.Asean Campris, and that was one of the questions raised by the journalists, and so we put that in the booklet. A lot of people raise this; one person they might be thinking of is Pol Pot: why is he not on trial. This is because in the legal system, you cannot try someone who is not alive to defend himself and speak in the court to argue his case. So even though evidence might be brought forward, and people may point towards the guilt of people who have died, it is not possible to bring them to trial. Also, you have to be tried for the individual criminal responsibility carried out.
Audience Member: As a Cambodian, of course I am in favor of the trial for justice, national reconciliation, and so on. We know that all people who were KR have blood on their hands and are still living with us. What does this trial then mean to them? As some of them continue to use violence. Secondly, after the trial, does it mean the show is over? What else can we do to learn more, to continue the trial on a national reconciliation basis? Having said that, I think I'm asking for all of us to think ahead.Thank you.
Keo Remi: I totally support your idea. I would say in Cambodia we have the former KR leaders, and also at some level of Cambodian authority, so this is the reason why the UN and Cambodian government made a law to try the KR. It has been complicated because they want to continue impunity to protect themselves, far away from the trial. And so this is why they send only senior KR leaders to trial.
Audience Member: I have a few questions. First of all, we all have a little bit in common. I know that the whole situation starts with politics, the power in this country and the world super powers trying to solve this problem with us. My question is how much politics is involved with this tribunal, while the superpowers like the US and UN did nothing for so long and the leaders died. So let's speak now of justice. For justice, how are you going to get international standards for this trial? How big is the group that judges and prosecutors will be selected from? I think that many people go free illegally, and so many of them were involved, many people and their relatives died. How can they judge those accused? Another question is how much do you pay the local judges involved in this trial compared to the international ones; are you paying $15 a month? And is the [Cambodian] riding a motorbike while the international judge gets a 24-hour guard? You care about international security and safety, are the two not the same? How can they be fair in terms of judgments when [the Cambodian judge gets] $15 and the international judge maybe $15,000. [microphone is pulled away from him]
Keo Remi: According to the KR trial law that has been passed by Cambodia's National Assembly, I have seen that the pay for Cambodian and international judges is the same, so we do not have any difference between the two. Your question about how to select the judges and prosecutors; we all worry about lots of Cambodian people and their families dying during KR rule, so if we use the law to its maximum, it will not interfere in the process of the KR trial.
Helen Jarvis: The law says the judges should have equal convictions, but it doesn't actually say equal pay, so there may still be some debate on that question. This is a question for the donors to consider. Do they think that the Sidam Sen bench should have different pay or not?...I don't know about the East Timor case, but in Sierra Leone, Rwanda and Yugoslavia all the judges are paid the same. But that is still a matter to be discussed. Cambodia has promised to pay national salaries for national staff. That is their obligation under law, and anything above that will be up to the donors to contribute. So perhaps people, if there are any millions from the donors, might think about some of those issues that are raised, about fairness of conditions, service and pay, because it's a serious question of not only the judges, but right down the line.
On the question of whether the trial can be fair, judges and prosecutors themselves have suffered. It seems to me that every single person in Cambodia has suffered from what happened during that period. Whether they were living happily or killed, whether they were children who lost their childhood, lost their education, whether there are people in this country who have suffered because of the lack of skills and poverty, I think everybody has been affected. So if you say they cannot participate, then that means Cambodians should not join the trial, and I personally don't think it's right that the only Cambodians should be the ones who are accused. I think the Cambodians should participate in all aspects of the trial.
[ Inaudible question about a veto. ]
Steve Heder: I don't think any of us could have a terribly good answer to the first part of your question.. I think clearly part of the problem in getting the money arises from concern about the possible lack of independence.It's very hard to sell this thing to the usual donors, when you cannot give them the assurance they need about standards. Almost everyone has the sense that it has to go ahead despite the problems, and if it's going to go ahead that it should be well enough funded to be as good as it can be.
On the second question, I think there's an easier answer. The position of the US Congress and government has not fundamentally changed recently. It's no surprise, it's no change, so we all knew that this was coming. It was possible that if Bush lost and Kerry won, Kerry would have tried very hard to find some way to get around these problems, since he was initially involved in brokering these deals. It's clearly up to everyone else right now, and in some ways up to those foreign powers that pushed hardest for this deal once the US pulled out. Those who pushed hardest were Japan and France, and indeed they were the ones who pushed forward the money. It would make sense if they would pony up some more. They shouldn't be the only ones.
Audience Member: It seems that everyone agrees that the trial is a good idea. What about some of the people who get taken into custody; is there a danger at any point of them leaving Cambodia?
Steve Heder: I think once the thing is up and running, some additional accused would probably be detained within months. I don't think it would be weeks, I don't think it would years. There could be people accused and detained as late as one and a half years into the process.The most obvious thing for them to do is to skip the border to Thailand or get on a plane to China. I don't think either the Thai or Chinese Government would want to get involved. There's really nowhere one would imagine they could easily go, so they would be stopped here and almost certainly be picked up.
Keo Remi: I would like to add to this point. We also worry about what you say. The escape to the west (Thailand) is not easy, but the escape to the east (Vietnam) is.
Michelle Vachon: Thank you all for coming. Special thanks to our esteemed panelists Keo Remi, Steve Heder, and Helen Jarvis. And thank you to the Overseas Press Club.
This transcription was prepared by the Documentation Center of Cambodia. It was scheduled to appear in the Center's monthly magazine, Searching for the Truth, Third Quarter 2004.
Editor's Note: We would like to thank Samantha Brown of Agence France-Presse and Youk Chhang and the Documentation Center of Cambodia for providing this transcript, and to DCC volunteer Isaac Tabor.
The transcript of this taped discussion has been edited because of lapses in the audio quality and to omit certain redundancies that come with extemporaneous speaking (indicated by .).
Transcribed by Documentation Center of Cambodia volunteer Isaac Tabor.
Michelle Vachon: Thank you very much for coming. My name is Michelle Vachon; our moderator tonight is Rachel Snyder; she's been a writer for 10 years and edited First They Killed My Father. She relocated to Cambodia about a year ago and . is working on another book on the garment industry that will be called A Journey through the Parts of Denim. She has also written for National Geographic, American Heritage and Rolling Stone.
Rachel Snyder: The theme for tonight is, as you know, "is the Khmer Rouge [KR] trial worth it and for whom." The issue of monitoring costs has been contentions for many years, of course, and so as the tribunal draws closer, the Overseas Press Club thought it would be a prudent idea to have a distinguished panel discuss things like why we need to have a trial, who can benefit from the trial, and will the cost be worth the outcome. We have three panelists and a translator; they'll talk for 10 or 15 minutes each and then we'll open the discussion up to a question-and-answer session at the end.
We'll start with Steve Heder; I'm sure his name is familiar to many of you. He first came to Cambodia in 1973 as a journalist for Time and since then has researched Cambodian politics and human rights for a number of organizations including the UN, the US State Department, Amnesty International and the Holocaust Museum. He has published a good number of books on the situation here in Cambodia; the most recent is Seven Candidates for Prosecution. He's also published Propaganda, Politics and Violence in Cambodia, and Kampuchea: Occupation and Resistance. He holds a PhD in politics from the University of London and is currently on leave from his professorship at the School Oriental and African Studies in the UK.
Helen Jarvis first visited Cambodia in 1967 and didn't come back for another 20 years, at which point she returned to help in the reconstruction of Cambodia's international library. From 1995 to 2001 she was a documentation consultant for the Cambodian Genocide Program and in 1999 she became the advisor to Deputy Prime Minister Sok An, who is the chairperson of the Cambodian task force on the KR trials. She has a PhD in Indonesian studies and has written a co-authored book that will be out any day now called Getting Away with Genocide, on justice and the Khmer Rouge tribunal. She also has the honor and distinction of being an Australian/Cambodian citizen, so she's here not only as an expert but as a citizen of this country.
And finally we have Keo Remi; he is currently a parliamentary member of the opposition party. Remi himself was a victim of the Khmer Rouge; he lost seven siblings during that time. In 1986 he was living in a refugee camp on the Thai-Cambodian border and became a member of the FUNCINPEC party. Shortly after that he went to the States to study and returned to Cambodia in 1991. From 1998 to 2003 he was on the steering committee of FUNCINPEC that was related to the Sam Rainsy party. We'll start with Steve.
Steve Heder: I'm going to try - but not necessarily answer - to address the questions that are pertinent, and I think that to do that we have to begin with two starting points. First, there is an irrefutable argument that the tribunal is necessary and certainly better than nothing. Otherwise, all the surviving men and women responsible for the crimes committed under the Communist Party of Kampuchea will either go unpunished or - possibly - remain indefinitely in untried detention, and these are totally unacceptable outcomes. The second is that although there is vast and probably mostly already lost potential for improving on the law and the agreement with the UN, there is nothing fundamentally wrong with them, at least on paper, either in human rights terms or truth-seeking terms. At the same time, we have to recognize five big problems.
The first is that the tribunal will probably conduct only approximations of fair trials, because of the real potential for illegal interference in the trials by politicians, including Cambodian government officials and diplomats representing other governments. I say this based on predicting the future from past experience, which is that the Cambodian judiciary is so lacking in impartiality and independence that a fair trial in politically charged cases has been virtually impossible. I can think of only one instance in the past decade where a court in Cambodia trying a politically-sensitive case was allowed to do more or less the right thing: to weigh the evidence and make judgments based on the evidence alone. This historically-based concern about unfairness in political cases is born of bitter experience that the dominance of politicians over the courts is beyond short- or intermediate-term correction by capacity-building programs. These have been attempted in Cambodia for more than a decade - so far with negligible results - as most donors now increasingly realize and publicly state. In this regard, I would emphasize that the fundamental problem is not a lack of knowledge or training within the judiciary, although more of both is sorely needed. The problem is the determination of key political players to prevent training and knowledge from being put to use against their fundamental political and economic interests. I won't belabor this point, but simply say that the ongoing shenanigans revolving around the murder trial of union activist Chea Vichea and the recent Bar Association election indicate things haven't changed in this regard. At the same time, however, both these cases suggest that left to do their jobs in peace as it were, Cambodian judges and lawyers are perfectly capable of weighing up evidence and of exercising independence, and indeed they are eager to do so, again, given the chance. That's the first big problem.
The second problem is that there is good reason to believe that an intention exists to ensure that the list of suspects to be tried in the Extraordinary Chambers (EC) is politically predetermined to shield many perpetrators (a few now in positions of political authority) from embarrassing scrutiny, if not from prosecution. Again, formally, the texts of both the law and the agreement can be said to be acceptable, if not unproblematic. Although there are problems with the agreement's and law's predetermined focus on senior leaders, I think this is defendable, especially since the law also makes possible the prosecution of a second category of suspects, those who were not senior leaders but were among those most responsible for CPK crimes. The problem is the stated and unstated intention to limit prosecutions to literally a handful of CPK senior leaders and a few other notorious perpetrators, most notably leading cadre of the CPK central security office, S-21 (or Tuol Sleng). This is a problem because the evidence suggests that those most responsible include other CPK cadre who could, and perhaps should, be candidates for prosecution.
You are all no doubt wondering how many, so let me give you my best guess. When the CPK was in power, its senior leadership comprised some 20-30 Central Committee members, and its corps of powerful cadre from the central down to the local level numbered perhaps 1,000 persons. Of the 1975 leadership and corps of cadre, many fewer than half survived the purges that began to devastate the Party in 1976 and proceeded in waves in 1977 and 1978. Quite a few of those who made it through to the end of the regime have since died. If the jurisdiction of the EC were to go down to the district level, it seems to me likely that no more than a few hundred are still alive. The definition of "senior leaders" and this notion of "most responsible" and the evidence will determine how many of these could be legally targeted for intense investigation. But my very rough guess is that no more than 60 cases would fit into these categories, including perhaps 10 senior leaders and 50 most responsible subordinates. That's my take on numbers.
I'm sure the next question people will be interested in is who these people are. To a considerable extent, I'm already on public record in this regard, but let me repeat the main points of what've I said repeatedly in print and in interviews. The Documentation Center of Cambodia recently republished a slightly revised version of something I wrote a couple of years ago entitled Seven Candidates for Prosecution, which named seven senior leaders then alive against whom there was evidence of culpability in the Center's archives of CPK documents. Six of them are still alive and still in the prosecution frame because the cases against them continue to build: Nuon Chea, Ieng Sary, Khieu Samphan, Ta Mok, Sou Met and Meas Mut. Of course, as that publication said, there is also massive evidence against S-21 chairman Duch, which is continuing to mount up, so he is certainly a candidate.
On the other hand, some years ago Craig Etcheson, who is another Khmer Rouge researcher, and I issued a statement declaring that we were aware of no evidence implicating Hun Sen in CPK crimes, a statement you can still find on various government websites. I just want to take this opportunity to say that several years on, tens of thousands of pages of documents on, and several thousand interviews on, this statement is still true. I would go further and say that to my knowledge, which is pretty good, there is no one in a position of significant power in the current government who would fit into the category of others most responsible for CPK-era crimes. To my mind, that's a myth, a red herring, a hope of some Cambodians and foreigners whose opposition to the current government on other grounds - how shall I put it -clouds their judgment and tempts them to engage in a witch hunt. I would add that those who might fit into this category of others most responsible are neither notorious nor otherwise well known. People in this room have probably never heard of any of them. This points to my conclusion that even if the truth, the whole truth, and nothing but the truth about the others most responsible were to be exposed, I don't think it would bring the government tumbling down, nor do I think it would tear society apart. Again, the possibility of following the letter of the law and spirit of the agreement exists.
But there's a third problem, which is a much broader issue regarding the exposure of the truth. That is if the trials in the EC are unfair and if its prosecutions are limited by political factors instead of the text of the law, the trials themselves are not likely to add very much to our knowledge and understanding of what happened under CPK rule and why. Above all, they are not likely to grapple well with what I see as one of the main historical questions surrounding CPK crimes, namely, the extent to which the crimes were either: a) the result of a conspiracy hatched by certain or all senior leaders, a conspiracy in which they gave orders to subordinates who carried them out; or b) the crimes were the result of abuse of delegated authority by their subordinates, acting without orders from above or even contrary to orders from above, without the knowledge of their superiors. My own view, based on the evidence so far, is that the crimes included large elements of both, and this fact needs to be revealed, analyzed and understood if we are seriously to advance legal, historical and moral accountability for CPK crimes. It's also my view that dealing with this issue will help us better confront perhaps the most common debate about the deep causes of CPK crimes: were they primarily the result of the influence of a foreign ideology or of local cultural proclivities? Now, even the fairest and most comprehensive trials wouldn't give us the answer to this one, and similar or analogous debates continue among those trying to explain the Holocaust, genocide in Rwanda and mass murder in the Soviet Union, regardless of whether there have been fair accountability trials or not. My point is that the fairer and more comprehensive the trials in the EC, the more likely they are to contribute something new and useful to answering such fundamental "why" questions.
Here I want to return to my earlier comment that a predetermined focus on senior leaders is problematic but defendable. I don't think it's necessarily problematic to establish an accountability principle that if you are a senior leader, you are culpable, even if you are only a little bit guilty, even if you are much less guilty than some colleagues among fellow senior leaders, or even if you are much less guilty than some lower downs. Being less guilty than others doesn't make you innocent, and being a senior leader, especially a well-known and influential one (even if not the most powerful one), gives you certain special responsibilities. However, what I do think is problematic is to let a predetermined focus on senior leaders lead inevitably to giving an impression that all or almost all of the crimes were the result of a top-down conspiracy, if - in fact - that was not the case. Conversely, dealing squarely with such issues may result in embarrassing a handful of prominent politicians. Even if they could not be described as most responsible, they could have to face facts they would very much rather remained unknown. The same applies to many other former CPK who are neither powerful nor prominent, and whose crimes I think are the key to understanding why lower-downs killed many fellow Cambodians in such large numbers in so many places. Unless Cambodians and others get honestly and introspectively to the heart of this issue, the legacy of CPK crimes will remain very heavy. Again, I don't see the tribunal as taking us very far down this road, even in the best of scenarios. My concern is that it not be misused to preclude further honest introspection.
The fourth problem is that unless the trials in the EC are fair and are allowed to follow the evidence wherever it leads, regardless of political considerations, they will probably have little or no immediate positive impact on the human rights situation in Cambodia, including judicial and legal reform. Simply put, if the trials demonstrate that it is possible for the judiciary in Cambodia to act independently, impartially and fairly, they will have a positive impact. But if they do not, the impact will be negative, precisely to the extent that they demonstrate the power of politicians to sabotage and subvert even the most closely watched trials, yet again overriding the knowledge, training and desires of those in the court system who favor truth and justice, and who would benefit enormously from participation in the EC, but whose experiences would only benefit society once political constraints relaxed. In the meantime, the most negative immediate impact would be if the proceedings were not fair, but they were to be declared fair, because that would be deeply demoralizing for fair trial advocates.
The fifth problem, as we know, is that the international community wants to do the whole thing on the cheap, which is going to exacerbate all the tribunal's problems. Of course, spending more money is absolutely no guarantee of a good tribunal, but spending less money certainly undermines the possibilities for making the tribunal better.
The bottom line for me is that if the government is courageous and works hard, and if everybody who wants the tribunal to succeed is courageous and works hard, then the chances of the tribunal being worth every penny the international community is willing to spend are good. I think it's no secret that I'm not the most optimistic person in this room about this, although I would guess that there are quite a few people here who are no less pessimistic than I. But I also have to say it would still be a positive and worthwhile outcome if, as a result of the process, some people concluded that the accounting provided by the EC was an imperfect and incomplete one, leaving many questions unresolved and therefore requiring further attention, research, investigation, review and debate, legal and historical. In fact, even in the unlikely event that the trials are totally fair and approach questions of culpability without regard to political considerations, that shouldn't be the end of the story. The notion of "closure" is antithetical to the pursuit of truth and understanding, and therefore, ultimately to justice and prevention.
Helen Jarvis: Thank you. I'm speaking here in a personal capacity; I am working with the government task force on the Khmer Rouge trials, but I'm not a spokesperson with the government. I would like to talk a little bit about the issue of what is it that the Cambodian people, government and others have longed for: that the tribunal should happen. I'm starting with the second question first I suppose: "for whom is it worth it?" I want to start by thinking about the general public and I recall that there have been a number of surveys, quite limited in number and sometimes quite limited in methodology, but the good thing is that they have been clearly consistent in their outcome. I haven't gone back specifically over this material myself, but according to Craig Echteson, there have been something like 10 surveys taken over the last decade that have fairly consistently come out with 80% in favor of a legal accounting. I recall in particular the Center for Social Development surveys.which came out in response to the question of whether a trial would be more advantageous or disadvantageous for national reconciliation; it came up with 82% [in favor]. People who've been following this issue may have heard reports in the last week or so of the survey carried out by the Khmer Institute for Democracy, in which 97% answered yes, they wanted the trial.The Documentation Center has had a number of.surveys...I haven't gone into this as an area of my own research, but I have not heard of any surveys that have declared that the majority does not want the tribunal.There has been no nationwide referendum or hugely scientific and systematic poll in recent years.
However, there was a fairly extensive survey taken in 1983 by the research committee of the Renakse International Front. Between 1982 and 83, I went to 19 provinces and reported; it was in the format of what one would refer to as petitions, where people wrote down what had happened to them, or people in their village or in their factory or particular units, and reported how many people had been killed in their family and so forth. Now there's a great deal of uncertainty about this issue and undoubtedly a number of [instances of] double-counting; people would have reported "my sister was killed" and somebody else would report that the same person was killed. But the point is that more than a million people did actually affix their finger and thumb prints to something that called for the UN to deny the recognition of the KR and to carry out some form of legal process. So, that's probably the most extensive survey.
I also wanted them to look at the issue of the government's position of the period. And if we go back even before the establishment of PRK, to the period when Pol Pot was still in power, the Renakse (when it was established in December 1978) called for some sort of accounting for the people who had, in the language of the time, a heavy blood debt, while at the same time calling to cleanse those who confessed and tried to rebuild the country. So that was the official position of the front when they came in and overthrew the KR.
In July 1979, Decree Law Number One, the first decree law of the new regime, established the people's revolutionary (PR) tribunal to try what was called the Pol Pot/Ieng Sary clique for the crime of genocide. People are probably familiar with the fact that in August 1979 there was a trial here of those two people in absentia, and that trial heard reports from 8 different commissions and texts from maybe 39 witnesses, and the team went out and looked at sites in several provinces. There was a great deal of criticism of the tribunal, and it's often been dismissed by the term "show trial." This is a complicated issue and we haven't really got time to go into it right now. I wonder what characterizes a show trial, how many trials around the world every day are show trials, so I don't think the weaknesses of the PR team are in any way unique. The point I'm trying to make is not to argue as to the propriety or even the veracity of the PR team, but to say that this was an effort that was made in the early days after 1979, in the early days after the overthrow of Pol Pot, and it reflected a fairly major commitment of the government at the time with extremely scarce resources to do it, and to carry out that trial I think indicates that it was taken as a serious question. Something that a lot of people probably don't know is that the government continued to call for an international trial throughout the 80s. The 79 tribunal did not get the recognition that the government I think expected at the time. In my view this was probably more for political than legal reasons. Although there were legal weaknesses with the trial, they weren't recognized and neither was the tribunal. But the government and the Renakse and other organizations throughout the 80s continued to hold conferences and meetings and send petitions, and go off to peace conferences around the world and call for a trial.
In September 1986 Hun Sen wrote to the [UN] secretary general and called for an international trial. Even before that, in 79 and 80, the documents for that trial were sent to the UN, so there were numerous appeals. I think it's important to make this point because many people keep saying that what's happening today is something completely new.but I don't hold to that position. There were also a number of international juror organizations, scholars, and activists throughout the 1980s who made some attempts to hold some kind of international tribunal. There were attempts to bring the case in front of the international court of justice. A huge amount of effort went into trying to get one of the state's parties that may have had an interest in the case to file a charge under the Genocide Convention, but these fell on deaf ears.
The third group I think is interesting to look at has been the National Assembly. In 1983 it adopted the resolution supporting the findings of the research committee that I referred to earlier. In an entirely different political setting, in 2001 on two different occasions (in January and again in July), the Assembly passed the law on the establishment of the EC. The second hearing was required because there was a need for technical amendment; the bill went back to the Assembly for a second round and was adopted unanimously in both cases. Then again this year, there were two votes in the Assembly. On the 4th of October, the ratification of the agreement with the United Nations passed by 107 votes out of 107. The following day the amendments to the law, which brought the two documents into synchronization, were passed by 96 votes out of 98. So I think there's been a fairly consistent expression of the government position.
Answering the question of "is it worth it," I suppose one has to think of that not just in monetary terms, but in terms of effort and emotional stress, the diversion from other tasks, and the point that Steve talked about, the social unrest or threat to the social fabric. On the money question, I know that some people lately have been saying it would be far better to spend the currently estimated $57 million on something else and that the Cambodian people need a whole lot of other things before they need a trial. I would say that these are not either/or, and that by not having a trial, I don't think we're going to get $57 million extra to do whatever it is people think needs to be done. I think that the powers that hold money for development are not necessarily the same ones that are going to make a commitment on the trial. I think it's a political question.
It's also related to the historical involvement of different countries. And perhaps their other experiences and their own experience in the case of, say, Germany, or their own involvement at other stages in the Cambodian struggle or Cambodian situation. So I think that by not doing it, were not going to get more money for something else. And I think that also one could always question spending, and any expenditure always has an opportunity cost, whether it's between sectors or in sectors. If we spend more on health, do we therefore spend less on education? If we spend more on primary schools, do we therefore spend less on secondary schools? There are debates, even say within each sector, and I think there are also debates that people could come up with, that could pose the question of why the money should be spent in Cambodia at all. Are there not more pressing crises around the world involving life or death today? People could certainly make those arguments. One could also look at how society has decided to spend money, or how governments have decided to spend money on armaments, on stores, on advertising, leisure. There are a number of "holier than thou" arguments one could make about where money could be spent, so I don't think it's a very constructive decision to focus on the $57 million and say that's taking away from doing good in Cambodia or some other part of the world.
As to whether it's worth it in other non-monetary terms, I think that this has been an issue and a focus of Cambodia for so long, that to turn around now and say it's not worth it or perhaps not give the money, and say "oh sorry, we can't afford it," would itself cause an extremely damaging situation. I think also the expectations have been raised that Cambodians have been forgotten for many years, and there were tribunals in other parts of the world. For better or for worse, and Cambodians should have theirs. Now, I think we've spent so long in getting somewhere, we've had agreement between UN and Cambodia painfully and slowly achieved, and as I say, we have unanimity in the National Assembly. I think the fact that Cambodia itself has been involved in the planning of this tribunal has been in contrast to any of the other international tribunals or mix tribunals, all of which have come in as a package from outside. That has made it slow, and perhaps made it painful, but I think that it has made it possibly a more robust model.
Keo Remi: First I would like to say thank you very much to the Overseas Press Club of Cambodia which has invited me tonight to discuss the KR trial. During the KR regime, in 1975, I was 14 years old. I and my family were evacuated from Phnom Penh to Battambang province. On the way, I myself saw the KR killing people, government officials, and children on the road. There were two kinds of killing during the KR time. First of all, they did not give enough food to Cambodian people, and a lot of people faced starvation. And the second kind of killing was a daily show, Oukoubah [justice] day; they wanted to kill the wives of the people they were going to kill. The two kinds of killing led to many deaths.
Seven of my siblings and my father were killed. A lot of my other relatives were also killed during KR time. After the KR regime was overthrown, I saw some people who were working at the National Assembly and Cambodian court who were former KR, so they still exist within the Cambodian power structure. So as I mentioned earlier, in Cambodia the trial law is only for the senior leaders. This is different from the Nazi Hitler trials. They also tried senior leaders, military and police who collected people and brought them to be killed.
Regarding the issue [of whether].Cambodian judges and prosecutors will be unable to do the job, the judicial system in Cambodia has been controlled by political parties. So for Cambodia, I would like to make a generalization. Our system is one of proportional representation. People from the principal party must be chosen to fill the seats that people elected, and it is very difficult to find people to do that job. So if they want to have the job, they have to join the political party.It is even difficult to find independent judges and independent prosecutors, in my view. I have said that we should have a trial for KR leaders. Through the KR trial.maybe we can find justice. for more than two million people who died during KR time and certainly find out who was behind the KR regime, who interfered with Cambodian society and let Cambodian people die. Most of all, I think that the Cambodian judges and prosecutors can learn from foreign judges about the trial process, and after that, Cambodian judges.can make improvements in Cambodia. The last point for the trial is that we send a message to the criminals and country leaders everywhere in the world.If not, we cannot not find justice.Another point is that if we do not have trials, the culture of impunity will continue.
One other point. Some politicians have said please use the trial money to develop the country; do not use it for a KR trial. In my point of view, please don't use the money [intended] for the KR trial for another option like development. Please try the KR leaders, if [the trials do] not [go ahead], the culture of impunity will continue. And if we do not do this, people will not understand about social justice. So what they have said about not using money for a KR trial is because they want to avoid a trial because they were involved in the killing.
Rachel Snyder: Thank you. We're going to open for a couple of minutes for questions, if anybody has any questions.
Audience Member: Will it just be political leaders or also the executioners who are on trial?
Steve Heder: Part of the answer is that political leaders would seem to be threatened. This is not actually talking about hands-on killers. In my gut feeling, they were probably not in the framework. I think when they were talking about others most responsible, they were talking about people who had decision-making authority at places and at levels below the senior leadership, but they weren't the people who did the actual killing. I think generally the evidence suggests that those who did the hands-on killing were not the people who made the decisions.
Helen Jarvis: I think that we need to add that being a senior leader is not a crime. It's senior leaders and those most responsible, but people still need to fall into the framework of how they committed those specific crimes.
Audience Member: Kofi Annan came out this week saying he wants $19 million from the bank for first year's trials. You've got millions from the Australians. What are the chances of getting this money?
Helen Jarvis: The question is how much money is there and how are we going get it, but it was also framed in specific numbers. The UN technical team has not come back for a visit to finalize the budget and there's a couple of terms that have not been signed on, but the current figure is $67 million that has been requested for around three years. The only country that has made a concrete commitment is Australia, which is $3 million Australian, currently about $2.2 million and rising, but that's not going to do it. There's an awfully long way to go, and speaking personally, I think the recent announcement by the US Senate Appropriations Committee was a bit depressing, about what might be given by the US. I hope that that won't put off any other countries from contributing. Other concrete figures have been given, although the secretary general's report does mention some. It's also important to note that the report, although just released in the last few days, is dated 12 October, so it's actually probably not from today in the big terms of commitments. But I think most countries were waiting until Cambodia had completed its legal obligations, which were completed on the 27th of October, and now there should be another mission from the UN to get the budget absolutely finalized and a formal appeal made. One can only hope that we can go ahead. We have a target ahead of $60 million, which is not a great deal when compared to the money being spent on other tribunals.
I think it's fair to say that to have an international tribunal or mixed tribunal is costly. Particularly the international judges' salaries and the non-salary components are more potent. And some other senior officials -investigating judges and prosecutors - are costly if they are going to be under UN salary scales, which is envisioned. The secretary general has said that he does not think it's appropriate for the senior judicial officers to be seconded from different countries, which some countries had suggested they might do. If they are all to be at full UN rates, a lot of people know that is costly. There will be other costly components. The defense will need to be funded; it is unclear how many defendants there will be and how many will request court assistance. There are security considerations, and especially the UN has a high tendency for security, and has suggested that after the Baghdad bombings of last year, they will be very careful about security for the international staff. There are the usual things that go with international involvement like cars and computers. There will be very costly elements for translation and interpretation, and there are three official languages in the court: French, English as well as the official Khmer. Documents need to be translated, which is going to be extremely costly.
Audience Member: What's the worst case we can have? If all goes wrong, how's it going to go wrong? How can we see that? And how about the best case?
Steve Heder: This is the first time I've ever been accused of campaigning for the best case. I don't think I have an answer to your question, which is "if it all goes wrong, how will it go terribly wrong?" But my general sense of that is the danger that the investigation, the calling of witnesses, and the following of leads appear to be leading in a direction that people in positions of authority or people under their protection see as threatening, then some kind of allied obstacle will arise and that will then stand in the way of the smooth functioning of the whole process. Exactly how that will happen I wouldn't want to speculate, but that's the kind of thing that seems to me is most likely to happen, and is likely to happen on the basis of a rather over-sensitive - one might say paranoid - set of presumptions of what could go wrong for people in positions of power. And we wouldn't necessarily see that in obvious ways. It might be a number of little things that would add up to something big.
[ Inaudible question ]
Helen Jarvis: I think that's a very interesting question. Perhaps people could pick up the booklets we have here, "Introduction to the KR Trials," which is published by the secretary to the task force. When we had our first draft of that, we went to.Asean Campris, and that was one of the questions raised by the journalists, and so we put that in the booklet. A lot of people raise this; one person they might be thinking of is Pol Pot: why is he not on trial. This is because in the legal system, you cannot try someone who is not alive to defend himself and speak in the court to argue his case. So even though evidence might be brought forward, and people may point towards the guilt of people who have died, it is not possible to bring them to trial. Also, you have to be tried for the individual criminal responsibility carried out.
Audience Member: As a Cambodian, of course I am in favor of the trial for justice, national reconciliation, and so on. We know that all people who were KR have blood on their hands and are still living with us. What does this trial then mean to them? As some of them continue to use violence. Secondly, after the trial, does it mean the show is over? What else can we do to learn more, to continue the trial on a national reconciliation basis? Having said that, I think I'm asking for all of us to think ahead.Thank you.
Keo Remi: I totally support your idea. I would say in Cambodia we have the former KR leaders, and also at some level of Cambodian authority, so this is the reason why the UN and Cambodian government made a law to try the KR. It has been complicated because they want to continue impunity to protect themselves, far away from the trial. And so this is why they send only senior KR leaders to trial.
Audience Member: I have a few questions. First of all, we all have a little bit in common. I know that the whole situation starts with politics, the power in this country and the world super powers trying to solve this problem with us. My question is how much politics is involved with this tribunal, while the superpowers like the US and UN did nothing for so long and the leaders died. So let's speak now of justice. For justice, how are you going to get international standards for this trial? How big is the group that judges and prosecutors will be selected from? I think that many people go free illegally, and so many of them were involved, many people and their relatives died. How can they judge those accused? Another question is how much do you pay the local judges involved in this trial compared to the international ones; are you paying $15 a month? And is the [Cambodian] riding a motorbike while the international judge gets a 24-hour guard? You care about international security and safety, are the two not the same? How can they be fair in terms of judgments when [the Cambodian judge gets] $15 and the international judge maybe $15,000. [microphone is pulled away from him]
Keo Remi: According to the KR trial law that has been passed by Cambodia's National Assembly, I have seen that the pay for Cambodian and international judges is the same, so we do not have any difference between the two. Your question about how to select the judges and prosecutors; we all worry about lots of Cambodian people and their families dying during KR rule, so if we use the law to its maximum, it will not interfere in the process of the KR trial.
Helen Jarvis: The law says the judges should have equal convictions, but it doesn't actually say equal pay, so there may still be some debate on that question. This is a question for the donors to consider. Do they think that the Sidam Sen bench should have different pay or not?...I don't know about the East Timor case, but in Sierra Leone, Rwanda and Yugoslavia all the judges are paid the same. But that is still a matter to be discussed. Cambodia has promised to pay national salaries for national staff. That is their obligation under law, and anything above that will be up to the donors to contribute. So perhaps people, if there are any millions from the donors, might think about some of those issues that are raised, about fairness of conditions, service and pay, because it's a serious question of not only the judges, but right down the line.
On the question of whether the trial can be fair, judges and prosecutors themselves have suffered. It seems to me that every single person in Cambodia has suffered from what happened during that period. Whether they were living happily or killed, whether they were children who lost their childhood, lost their education, whether there are people in this country who have suffered because of the lack of skills and poverty, I think everybody has been affected. So if you say they cannot participate, then that means Cambodians should not join the trial, and I personally don't think it's right that the only Cambodians should be the ones who are accused. I think the Cambodians should participate in all aspects of the trial.
[ Inaudible question about a veto. ]
Steve Heder: I don't think any of us could have a terribly good answer to the first part of your question.. I think clearly part of the problem in getting the money arises from concern about the possible lack of independence.It's very hard to sell this thing to the usual donors, when you cannot give them the assurance they need about standards. Almost everyone has the sense that it has to go ahead despite the problems, and if it's going to go ahead that it should be well enough funded to be as good as it can be.
On the second question, I think there's an easier answer. The position of the US Congress and government has not fundamentally changed recently. It's no surprise, it's no change, so we all knew that this was coming. It was possible that if Bush lost and Kerry won, Kerry would have tried very hard to find some way to get around these problems, since he was initially involved in brokering these deals. It's clearly up to everyone else right now, and in some ways up to those foreign powers that pushed hardest for this deal once the US pulled out. Those who pushed hardest were Japan and France, and indeed they were the ones who pushed forward the money. It would make sense if they would pony up some more. They shouldn't be the only ones.
Audience Member: It seems that everyone agrees that the trial is a good idea. What about some of the people who get taken into custody; is there a danger at any point of them leaving Cambodia?
Steve Heder: I think once the thing is up and running, some additional accused would probably be detained within months. I don't think it would be weeks, I don't think it would years. There could be people accused and detained as late as one and a half years into the process.The most obvious thing for them to do is to skip the border to Thailand or get on a plane to China. I don't think either the Thai or Chinese Government would want to get involved. There's really nowhere one would imagine they could easily go, so they would be stopped here and almost certainly be picked up.
Keo Remi: I would like to add to this point. We also worry about what you say. The escape to the west (Thailand) is not easy, but the escape to the east (Vietnam) is.
Michelle Vachon: Thank you all for coming. Special thanks to our esteemed panelists Keo Remi, Steve Heder, and Helen Jarvis. And thank you to the Overseas Press Club.
This transcription was prepared by the Documentation Center of Cambodia. It was scheduled to appear in the Center's monthly magazine, Searching for the Truth, Third Quarter 2004.
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