Comparing the Incomparable?
Private First Class (PFC) Bradley Manning is alleged to have leaked thousands of pages of classified government documentation to which he had access in his professional capacity; an allegation that he does not deny. When President Obama blurted out in the middle of a fundraiser that he felt Manning had “broke[n] the law” ahead of any adjudication of Manning’s guilt, that resulted in an onslaught of scholarly and pundit opinion that Manning’s fair trial was compromised by the fact that Obama being Commander-in-Chief made a guilt pronouncement ahead of the court-marshal. With Manning’s court-marshal is entering its beginning stages, it is not clear whether his defense is going to mount a peremptory challenge against the proceedings on the basis of President Obama’s statement. While whether or not to mount this challenge is entirely up to Manning’s defense, it is clear that Obama’s comment was considered as inappropriate by many and raised the poignant question of whether in light of this comment there was any possibility left for Manning to receive a fair trial.
In Cambodia, the issue many ECCC observers have been focusing on for the last 2 years is the issue of allegations of the current political interference with the administration of justice at the ECCC. While this may be a valid issue, it can be argued that it has been rendered moot – at least to the larger extent – by the fact that the entire top leadership of Democratic Kampuchea was declared guilty in Hanoi way in advance of the 1978 invasion of Cambodia by the Vietnamese armed forces shingled as the Liberation Front "led" by a handful of Cambodian defectors. The majority of the observers of the ECCC process – for lack of knowledge of Cambodian history in most cases – glossed over the fact that the entire legitimacy of the Vietnamese-installed regime (People’s Republic of Kampuchea) rested on the leadership of Democratic Kampuchea being guilty. With it, PRK was the Savior of the Cambodian nation, the Patron of the Oppressed, the Liberator and the hope of the Cambodian nation for survival and possibly a brighter future. Without it, it was a gang of disgruntled defectors who came back to their homeland on the armor of Cambodia’s most reviled, vilified and demonized hereditary enemy, the Vietnamese (the Cambodian society’s sentiment towards the Vietnamese, contemporaneous or current, cannot and should not be underestimated). The existence of a factual basis for guilt was irrelevant as were the degrees of guilt different members of the Democratic Kampuchea leadership may have had. What was relevant was that the decision regarding their guilt had already been made in Hanoi and it simply had to be given a stamp of approval in Phnom Penh. This was done through the auspices of a 3-day process which worked from a script and which went without a hitch or any trappings of a fair trial. That process fortified the PRK’s legitimacy and its government went ahead with cementing its power full throttle. The anti-Democratic Kampuchea rhetoric did not abate and was heard from every PRK rostrum in this country for the next 20 years. The expansiveness of this campaign and its duration had no one left uninformed (being convinced is not the luxury successive Cambodian governments have extended their citizens) that Democratic Kampuchea was the enemy and that its leadership was guilty of every possible offense under the sun (statutory law was not something that was held in high regard during those years) including those who sit on the process as Cambodian judges now.
The current prime minister of Cambodia was one of the key politicians who designed and propagated these views which from the beginning of the PRK became the official position of its government and has remained such until now (PRK presently remains in power, albeit under a different name).
President Obama made a single statement regarding the guilt of a person who was yet to be tried and has been trying to retract this statement since. Prime Minister Hun Sen has made, perhaps, hundreds of thousands of statements regarding the guilt of the leadership of Democratic Kampuchea and he has not retracted a single one of them. Two generations of Cambodians were raised on these statements. President Obama’s comment on the guilt of an untried citizen caused an uproar in the United States and beyond; Prime Minister Hun Sen’s statements have barely made headlines in Cambodia.
It would be easy to dismiss this comparison by pointing out that there is no point in comparing fair trial in the US with that in Cambodia. It would be indeed. If the United Nations were not involved in the ECCC, that is. If the UN were not involved, no one would expect the Cambodian judiciary to grant fair trial guarantees to the Democratic Kampuchea leadership. It is also true that there would be no process as no one would give the unsupervised Cambodian government money to conduct its own trials of the Democratic Kampuchea leadership. If there were no process, the persons presently standing accused would be free. As it is, they are not now and the only reason they are not is because this process exists and the only reason this process exists is because the donor-states agreed to fund a process created and guaranteed by the United Nations, not a brainchild of the Cambodian judiciary whose integrity has been in doubt from the outset of this process (Group of Experts Report of 1999). The Manning-ECCC comparison is instructive because the US fair trial rules are far more similar to those adopted at the international level through the UN frameworks (and which the UN is supposed to promote throughout this process) than those practiced in Cambodia. The UN being the de facto guarantor of these rules has the responsibility to enforce them and the observers of the process have every right to be as riled up as the observers of the Manning process and much, much more due to the fact that the idea of guilt of the persons in the dock has been instilled in 2 living generations of Cambodians which makes fair trials in this process almost as impossible as it was back in August, 1979, albeit for markedly different reasons.