Will the Prosecutions be Successful? Archive: Legal loopholes open for Ta Mok and Duch

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Legal loopholes open for Ta Mok and Duch[Photo: Duch: Even if tried he may walk]
International involvement in the trial of former Khmer Rouge leaders Ta Mok and Duch is back on the agenda, but is it already too late for justice to be done? Bora Touch, a founder of Legal Aid of Cambodia and now a law student in Australia, examines the procedural and legal irregularities that may have jeopadized the prosecution.WHEN the Parliament decided to amend Article 14 of the transitional criminal law, known as the UNTAC law, it was not Ta Mok that the government had a problem detaining but rather his colleague Duch, the former prison chief of S-21, (Tuol Sleng).Existing Cambodian law covered the case against Ta Mok, the Government could have detained him for six months before a trial under UNTAC law which prohibited membership of the Khmer Rouge.It is likely he would have been convicted and jailed on such a charge. Ta Mok would then have been confined to prison while Cambodia and the international community carried out an investigation into his role in genocide or crimes against humanity.The government did not do this, so, ironically, as his pre-trial detention exceeded six months, more than the law permits, Ta Mok is legally, under the Khmer Rouge Act, a free man.No such option existed for detaining Duch. By the time the Khmer Rouge Act came into force in 1994, Duch had given up his communist armed struggle and converted to Christianity. Therefore he could not be charged under the Khmer Rouge Act. Duch was arrested, probably in an attempt by the government to shield him from journalists and scholars who wanted to obtain all his information on the Khmer Rouge. This would have implicated other former comrades, like the chiefs of other prisons such as Boengtrabek. The government, fearing potential criticism for illegally confining Duch without charge, a serious criminal offense under UNTAC law, needed to charge Duch with a crime.The "solution" was to charge Duch with treason against the communist revolution and with genocide.According to sources in the Cambodian Bar Association, Duch has been charged under article 7 of Decree-law No. 01 dated 15 May 1980 (Decree-law on Punishment For Treason and Other Offenses against the People's Revolution) promulgated by the Revolutionary People's Council, the predecessor of the People's Republic of Kampuchea.But there are serious questions about the validity of this law. The decree was superseded by UNTAC Law in 1992. This was then reinforced by the State of Cambodia's law on the Criminal Procedure 1993 because this law referred to the UNTAC law as the penal code of Cambodia and not the Decree-law.However, law on Criminal Procedure 1993 was without legal force since it was like all other laws created by SOC between Paris Agreement/treaty Oct 23, 1991 and the promulgation of the 1993 Constitution. This made it a violation of the Paris treaty which gave all powers, executive and legislative to the Supreme National Council.In addition, the Decree-law violates the current Constitution which prohibits the promotion of revolutionary causes.Since the Decree-law was made by the executive branch (presumably the State Council), it could not survive Article 139 of the Constitution which states that laws or standard documents are to remain in force until their replacement so long as they do not violate the spirit of the Constitution.The Decree-law not only violates the Constitution's spirit, it violates the express provision, ie separation of power in which legislative power is exclusively given to the Legislature (Art 90).Therefore, Duch is still being illegally detained because he is charged under an illegitimate law. If tried under this law, he will probably be acquitted.The odd thing about using this Decree-law is that it refers to the revolution which was founded in 1951 by the first Cambodian communists after the dissolution of the Indochinese Communist Party, which was co-founded by Ho Chi Minh. The revolution's full name was the Khmer People's Revolutionary Party (KPRP), later Communist Party of Kampuchea (CPK).The leadership was taken over by Pol Pot in the 1960 party's second congress; and in 1962, Pol Pot became the powerful Secretary-General of the party after Tou Samouth was murdered (some people say by Lon Nol on the instruction of Prince Sihanouk; others blame Pol Pot).Since l960 and especially 1962, Pol Pot was legitimately holding the party's leadership practically until his death in 1997. The party's name was changed again in 1982 to "Party of Democratic Kampuchea" as a concession to allow the creation of the coalition Government of Democratic Kampuchea which included the Son Sann and Sihanouk factions.Upon Vietnam's invasion of Cambodia in 1979, the remnant Khmer Viet Minh and the Khmer officers who defected early to Vietnam claimed the ownership of the Khmer People's Revolutionary Party and changed its name to Kampuchean People's Revolutionary Party.The idea of changing from "Khmer" to "Kampuchean" was to make way for those who were not of Khmer ethnicity to become leaders of the party.According to Hun Sen in his 13 Decades of Cambodia's journey, the new party "is the continuation of the Khmer People's Revolutionary Party".In his book, Comrade Hun Sen also accused Pol Pot of betraying the party's goals. The fact is that when Vietnam invaded Cambodia, Pol Pot was in the control of the Revolutionary Party and its Central Committee.The Khmer defectors, such as Hun Sen and Heng Samrin, though not Chea Sim, were not even significant members of the Communist Party. They betrayed the revolution by defecting to Vietnam. Therefore, it is they who should be charged with betraying the revolution, not Comrade Duch.When Decree-law No 01 was passed in 1979, Duch was with the legitimate government and the revolution. The government, which was recognized by the UN and the international community, or at least the Western Bloc, was the Khmer Rouge Coalition government, nominally led by Prince Sihanouk, not the rebellious government installed by the Vietnamese army.Meanwhile the genocide charges against Duch are also legally dubious.On August 19, 1950, Son Sann, Minister of Foreign Affairs, ratified the Convention on the Prevention and Punishment of the Crime of Genocide.This treaty, like other international human rights treaties, does not set out punishments for particular crimes, rather it only sets out the principles of how to deal with genocide.It requires member states to adopt national laws to punish offenders. So far, Cambodia has not done this. None of the six constitutions of Cambodia have provided a procedure for how international law is to be incorporated into domestic law.Prior to the promulgation of the 1993 Constitution, UNTAC advised the Khmer representatives that they should have included provisions in the Constitution so that after the ratification of international treaties, such as the International Convention on Civil and Political Rights or genocide "to which Cambodia is or may become a party are applicable as law in Cambodia as soon as they have entered into force and are promulgated by the State. In cases of conflict between a Cambodian law or regulation and a rule of international law, the latter shall prevail. Norms of international law may be invoked before the courts of Cambodia and applied by the judge."They ignored this most important advice. As a result, the fathers of the Constitution followed neither the monist principle of treaty incorporation under international law (that is, the treaty automatically becomes national law upon ratification by Cambodia, thus applicable in domestic court) nor the dualist principle (which requires adoption of domestic legislation to give legal force of international treaty in national court). Instead, Article 31 of the Constitution makes a global statement: "Cambodia shall recognize and respect (note: not obey nor observe) international human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women's and children's rights", This phrase does not clarify the position of how international law is to be treated in Cambodian domestic law.The result has been that international human rights treaties have been given very little effect, if any at all.Can victims of human rights abuses bring their claim to a Cambodian court under these covenants when their rights, such as the right to dignity and freedom, are violated? The answer is no. This answer was revealed in the Government report to the International Convention on the Elimination of all Forms of Racial Discrimination (5 May 1997 CERD/C/292/Add.2) which states " these covenants and conventions may not be directly invoked before the courts or administrative authorities" [p.7.] Where and whom, then, can the victims of human rights abuses turn to have their cases heard? Cambodia did not ratify the optional protocol to the International Convention on Civil and Political Rights which would enable victims of human rights violations to lodge their complaints to the UN Human Rights Committee.The victims, therefore, can neither lodge the complaint to the UN Committee nor can they, since they are not states but individuals, go to the International Court of Justice.But even if the conventions did apply, what Duch did in the Toul Sleng prison did not constitute genocide as they define them.What he did may well constitute political genocide or "politicide". But political genocide is not a crime under the genocide convention.Prior to the adoption of the Convention on Genocide, many countries wanted to incorporate politicide and even cultural genocide as crimes, but the big powers, such as the Soviet Union, the United States, the United Kingdom, China and others, refused.To be guilty in Article 2 of the Genocide Convention, Duch must have committed "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group", such as:
Killing members of the group.
Causing serious bodily or mental harm to members of the group.
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
Imposing measures intended to prevent births within the group.
Forcibly transferring children of the group to another group.
Duch's alleged mass killings and torturings of political prisoners did not constitute genocide as defined in international law.According to a former Khmer Rouge researcher and former Ambassador, Kenneth Quinn, at least four of five prisoners were Khmer Rouge political commissars. The rest were probably their children and wives. These victims were Cambodians who were not regarded under the convention as an ethnic or racial group.Some international law scholars, such as Hurst Hannum in his "International law and Cambodian Genocide: the Sound of Silence"(1989), have argued that Cambodians were the national group anticipated in the Genocide Convention.This has been proved to be a wishful thinking. Recent studies have proved that "the argument that the Khmer Rouge committed genocide with respect to the Khmer national group appears to be relatively weak in the lights of the facts" [Ratner and Abrams, "Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy" p 246].If these minority groups were not regarded legally as Cambodian and they still instead were regarded as Cham, Chinese, etc who had been living in Cambodia for generations and in fact had Cambodian ID cards, this further would create another legal confusion and uncertainty because many, if not most, top Khmer Rouge leaders who are responsible for the genocide of other minority groups are not really Khmers but members of those racial groups.Pol Pot and Khieu Samphan, Noun Chea and many others are Sino-Cambodian and Ieng Sary is a Sino-Vietnamese Cambodian. Therefore, under these experts' definition of Cambodian, these KR leaders are an ethnic minority too. Now it comes to a complete confusion. Legal and factual confusion creates reasonable doubts and reasonable doubts create acquittals.When the UN Legal Experts recommended that prison officials or chiefs be brought to justice, the recommendation failed specifically to state the nature of responsibility of prison chiefs and whether they were also the "superior" leaders which would be held responsible for the alleged genocide that happened during 1975-1979.If Duch was not included as one of the KR leaders who were responsible for overseeing the state policy implementation, he is not to taste justice.The Sino-Cambodian Duch was not a member of the power-holding Central Committee or Politburo of the Communist Party of Kampuchea, therefore, the genocide is far from being his problem.It initially appears that crimes against humanity would be a better charge for the likes of Duch but there are legal problems with this case as well.Crimes against humanity include torture, killings, rape, etc on a massive scale. This charge is easier to prove against Duch. However according to the media reports Duch has not been charged with crimes against humanity.This is understandable because Cambodia does not have laws governing this particular crime. In addition, unlike genocide and war crimes, crimes against humanity are not a treaty-based obligation which requires their inclusion in the national legal system. The crime "crimes against humanity", as mentioned above, does not exist in Cambodian law, though it has been given customary international law status in the international context.This gives the government all the room to maneuver, and with, apparently, no political will to bring the Khmer Rouge to a real justice, a lot of Khmer Rouge offenders will walk.In addition, Cambodia did not ratify the Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes Against Humanity.Cambodian general law's statutory limitation is 10 years. Duch's responsibilities in Tuol Sleng prison ended about Christmas Eve, 1978, when Vietnam invaded Cambodia. He was arrested in 1999, thus the statutory limitation works to his advantage.A dead end to prosecution of Duch and the Khmer Rouge leaders for genocide or crimes against humanity is ultimately the outcome of the Paris Peace Agreements/treaty (1991). This very treaty prohibits making law that acts retroactively.The agreement only obliges the new Cambodian government "to take effective measures to ensure that the [killing] policies and practice of the past [of the Khmer Rouge] shall never be allowed to return [in the future]. This was a deliberate intention of the drafters, especially US, of the Paris Agreements that Khmer Rouge will not be brought to justice. Partially it was to protect themselves and other sovereign nations like China. The Chinese fed and armed the Khmer Rouge through the Killing Fields till about 1991 and the US's carpet-bombardments, made without congressional approval, according to the UN human rights report in 1996 killed more than 700,000 and two million peasants were made homeless (UNDoc.E/CN.4/1994/73, P.7).War crimes and probably crimes aganst humanity also were committed by the US, even if the timeframe is limited to April 17, 1975 to January 7, 1979, as the UN has recommended. This time limit was probably, in part an attempt to thwart exposure of the US killings. If this was so, they missed something. Many people are aware that the US murder of a little, confused and battered people did not end on April 17, 1975 when KR took over power.The US involvement, particularly the Mayaguez incident, continued until May 15, in which time Sihanoukville, the main naval base at Ream, Kep and Bokor cities were blasted and numerous lives were unnecessarily lost and maimed.One hopes that these deaths have not been incorporated into the Khmer Rouge's list of 1.5 million victims.Duch was illegally arrested and detained because the law used was not legitimate.In an attempt to legitimize the detention, the government charged him with the illegitimate law and amended article 14 and then went on to charge him with genocide, an offense which does not exist in Cambodian legal system.Article 14 was amended to allow for the detention of people accused of serious crimes, such as genocide and crimes against humanity, for up to three years.Three-year pre-trial detention violates any reasonable international standard. It violates Duch's right to a speedy trial provided for under the International Covenant on Civil and Political Rights, to which Cambodia is a party.This practice is one employed by authoritarian countries. For instance, the Internal Security Act promulgated by the British colonial government in Malaysia has been retained to the present day.This act allows the government to detain anyone accused of violating " national security" for two years without trial.Malaysian Prime Minister Mahathir has been a vigorous opponent of the notion of universal human rights.For him, human rights as embodied in the International Covenant on Civil and Political Rights, and other international instruments, are a product of western culture and western ideas that are not compatible with what he termed "Asian Values". Yet he has embraced a draconian law that was introduced by the west.Cambodia, which claims to be a democracy at least on paper, seems to be following this unfortunate path. However, in Malaysia, unlike the Duch situation, there is an existing domestic law for that specific crime, ie crime against national security, and there is none in Cambodia.The question that remains to be seen is what happens to those who are accused of these crimes and detained and at the end of three years are found not guilty.The current legal system is completely politicized, and judicial personnel are extremely incompetent and corrupt, and hope for protection of human rights and human dignity is accordingly bleak.When Prince Ranarriddh agreed to amend the law, the motive was not so much about the legal implications on him for being a Khmer Rouge ally or because he was serious about jailing them, instead it was for immediate political gain.Ranarriddh again forgot that he and five generals, including the now dead Chao Sambath who was, according to the UN, murdered right after the 1997 coup, were convicted, among other laws, under the Khmer Rouge Act which he once advocated to have adopted despite his father's resistance.Then after its adoption, it has been made a mockery of by the gamble of illegal amnesties for Khmer Rouge leaders like Ieng Sary and others.Bearing in mind that under the Constitution and existing operative Decree(Kret) no 28.kr.(20/6/1988), no one, including the King, has the power to amnesty or pardon " accused persons or suspects".The Constitution grants the King the power to loeklengtoh (lift guilt) from convicted criminals. Thus, amnesty to Ieng Sary from the Khmer Rouge Act, in which he has not been convicted, was in breach of the constitution's presumption of innocence principle.What the Government should have done instead of Article 14 was to wait until after promulgation of the domestic law on genocide or crime against human rights, but the government act of amending the law makes them no different from Duch because both violated human rights.This is not called rule of law or dhamatipatei, it is called rule of power. Given current Cambodian politics and legality, as they now stand, under an international tribunal Duch will walk away and his victims' injustice will stay.back to headlines
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