Cambodia finally gets its day in court

More people in Cambodia have heard about Dame Silvia Cartwright in the past fortnight than at any time before, arguably, more than even when she was appointed the Governor-General of New Zealand in 2001, a position she will hold until August.

Unexpectedly, quietly and slowly, Dame Silvia is coming into the lives of the Cambodian people, the kingdom's robust media and its fractious politics, with her appointment as one of the international judges for the forthcoming Khmer Rouge Tribunal.

Snippets in the media and the chat lines speak highly of her distinguished career as a lawyer, a jurist and a High Court judge, in fact the first woman to be appointed to that high post in New Zealand. Mention has also been made of her prominent role in the fight to eliminate discrimination against women - a celebrated cause in Cambodia.

There are 12 other international judges and prosecutors from Asia, Europe and North America, all nominated by the United Nations, about which, also, very little is known in Cambodia.

There is, therefore, increasing curiosity and a resulting awareness about the international judges for the first-ever trial of this nature in Asia. However, in sharp contrast, rather words have been reserved for at least one of the 17 Cambodian judges and prosecutors chosen by the highest local judicial body, the Supreme Council of the Magistracy, headed by King Norodom Sihamoni for the tribunal. This reaction is neither unexpected nor surprising.

Still, it is a remarkable achievement that the proposed tribunal has finally reached this far from its genesis in 1997 when the then Co-Prime Ministers Prince Norodom Ranariddh and Samdech Hun Sen wrote to the UN Secretary-General for assistance in establishing a trial to bring to justice the perpetrators of crimes committed during the ultra-Maoist Pol Pot regime.

What is probably long forgotten is that the prime reason for seeking UN assistance was not merely because the crimes had an international dimension or relevance, but more so because of the explicit admission that the Cambodian judiciary neither had the expertise nor the resources to conduct such a complex trial.

Some background is useful for perspective. Under the Khmer Rouge most of the judiciary either died or were killed, as were an estimated 1.7 million other Cambodians. The more fortunate escaped the clutches of the regime and resettled in third countries. The result was that when the Khmer Rouge was finally ousted from Phnom Penh in 1979 by invading Vietnamese forces, the newly installed Cambodian government had to build the judiciary from scratch. That was necessarily a painfully slow process for a cash-strapped and inadequately-trained government that was simultaneously working at building an education service, a health service and an administrative service - all from scratch.

Invariably trusted community elders and senior party officials were chosen by the new government's politburo to carry out primary judicial functions though, undoubtedly in the earlier years, the main objective of the emerging judiciary was to ensure the social stability of the fledgling regime.

This, then, was how the present day Cambodian judiciary began some 27 years ago. In the interim, students were sent overseas for training, particularly to Vietnam initially, and gradually an adequately trained coterie has taken its place in the judiciary, though there are still some from the earlier intakes awaiting retirement.

Detractors point out that the Cambodian judiciary is not among the more respected institutions in the country. This unfortunately is so. However, there are those who counter that it is still grossly unfair to paint the whole institution with one broad brush because of a few. Where the tribunal is concerned, given its very structure and transparency, the Cambodian judges will invariably come under greater scrutiny and will be benchmarked against the best of international judges. The hope is that the total experience will contribute to, and accelerate the maturity of, the Cambodian judiciary.

The tribunal comes with a long name - Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. It is popularly known by the shorter name, "Extraordinary Chamber"s or "EC".

The EC will have the power to try suspects charged with committing crimes under both Cambodian and international laws, i.e., genocide, crimes against humanity and war crimes in addition to murder, torture and religious persecution.

The EC will have two chambers, the first being the Trial Court, made up of three Cambodian and two international judges. For a decision to be reached the principle of a “super majority” will apply; i.e., four out of the five judges must support the decision: this means that every decision must have both Cambodian and international support.

The other chamber, the Supreme Court - an appeals chamber - will comprise four Cambodian and three international judges and will require five judges to uphold an appeal decision.

If a super majority decision cannot be arrived at in either of the courts, the accused is released as his guilt would not have been established. If the accused is found guilty, the maximum sentence will be life imprisonment. The accused will escape the gallows as Cambodia has abolished the death penalty. In a country where pardons and amnesties are not uncommon, the government has indicated that neither will be granted to persons found guilty.

The courts will only try crimes committed between April 17, 1975 and January 6, 1979, all of three years, eight months and 20 days. Only those "most responsible for serious crimes" will be tried: envisaged to be less than ten. The actual trials are expected to begin early next year although prosecuting judges are expected to start work from the middle of this year.

The Cambodian people have waited for almost a generation for these trials. While there will be different expectations, there must surely be some unspoken pride that the trial will be conducted in Cambodia where the crimes took place, under Cambodian and international laws, and with Cambodian and international judges like Dame Silvia Cartwright.