Moderator:
Ambassador Thomas Hammarberg, former Special Representative of the Secretary-General for Human Rights in Cambodia

Speakers:
HE Mr Sok An, Senior Minister, Office of the Council of Ministers of Cambodia and President of the Task Force on a Trial of Senior Khmer Rouge Leaders; Mr Youk Chhang, Executive Director of the Documentation Center of Cambodia; Ms Chea Vannath, President of the Center for Social Development, Cambodia

Mr Sok An spoke about the journey to throw off the horror and reconstruct the country and pointed out that even now when Cambodia is at peace for the first time in over thirty years the people have not fully emerged from that nightmare. After the political and military structures of the Khmer Rouge were defeated in late 1998, the government was faced with the twin tasks of reaching national reconciliation and justice. In Cambodia reconciliation has not meant amnesia. Important efforts to uncover and document the truth about what happened under the Khmer Rouge have been taken since the overthrow, inter alia, through the establishment of the Tuol Sleng Genocide Museum and killing fields memorials.

The achievements in the fields of truth and reconciliation have however not been paralleled by advances in the matter of achieving justice for the victims. The government has worked with this task since the Tribunal in 1979 and has had to balance the quest for justice with the process of national reconciliation. In June 1997 the Co- Prime Ministers requested United Nations assistance in organising the process for the Khmer Rouge trial. With respect for state sovereignty and, as enshrined in the Genocide Convention, Cambodia has the primary obligation to prosecute within domestic courts. The government requested international involvement in the process because of the awareness of the weaknesses in their judiciary but also, Mr Sok An explained frankly, because the government felt that it was important for the international community to contribute to this task in order to clear its own record on previous support for the Khmer Rouge.

After negotiations with the United Nations they reached an agreement based on the following fundamental principles:

1. That there should be a national trial, including foreign judges, but held in extraordinary chambers of the existing court structure following Cambodian procedure.
2. The court would have a majority of Cambodian judges but where the minority of foreign judges would be able to block a conviction the so-called “super-majority” formula.
3. The concept of co-prosecutors of an international and a Cambodian prosecutor.
4. Any differences between the co-prosecutors or the co-investigating judges would be resolved by a Pre-Trial Chamber.
5. The government agreed not to request the King to grant any further amnesty or pardon for those who may be indicted or convicted.

At this stage the government understood there to be an agreement with the United Nations based on these principles and moved to enact legislation to this effect, which was signed by the King in August 2001.To the government’s amazement and disappointment the United Nations announced in February this year that the organisation would no longer negotiate with the government on the matter.

Mr Sok An emphasised the government’s commitment to seeking justice for the crimes committed by the Khmer Rouge. Cambodia can now go ahead to establish the Extraordinary Chambers without the United Nations, either with the participation and support of certain countries, foreign legal experts or, as a last resort, to carry out the trial entirely on its own. On the Cambodian side, the door remains open to a resumption of negotiations with the United Nations, Mr Sok An reiterated, and expressed the hope that Cambodia would not have to wait any longer for justice to be done.

Ms Chea Vannath pointed to the fact that few efforts have been made to consult the Cambodian people about whether they think a tribunal will appease their need for truth and justice in regard to the Khmer Rouge regime. Contrary to the opinion of some, Ms Chea Vannath claimed she did not want to forget what happened and emphasised the importance of discussing these issues in public. The government and the international community should not be alone in the decision-making but it is vital that the people of Cambodia should have a voice in the process.

In order to involve the Cambodian people in the discussion on whether a trial of the Khmer Rouge should be held or not, the Center for Social Development organised a series of public forums in 2000. During the ground preparation phase, they realised that the crucial issue was not only that of a trial, but of creating long-lasting peace and national reconciliation, of which the question of a trial of the former Khmer Rouge was a component. The forums were held in Battambang, Phnom Penh and Sihanoukville and involved representatives from various sectors of society, including members of the former Khmer Rouge. This was criticised by some observers as many Cambodians find it difficult to confront their former oppressors. The results of the public forums showed that there was strong support for a trial, with 68 per cent insisting that a trial of the Khmer Rouge should be held. Only 9 per cent said that the past should be forgotten. Other suggestions as to how to deal with the past included education programmes and the holding of public confessions or religious ceremonies. Alternative measures had stronger support among those who had attended a forum. It thus seemed that the emotional debate during the forums had encouraged a greater spirit of forgiveness. Besides the participants of the former Khmer Rouge, women and monks were the main supporters of “letting bygones be bygones”.

Despite some variations of opinion the public forums demonstrated that there was strong recognition of the role of a trial in national reconciliation. The first forum was broadcast on television and all forums provoked a huge response across the country. Although all sides in the forums stated the need for truth, justice, healing and national reconciliation it was clear that there were widely differing views on what this meant in practical terms. However, the key issue was that public debate had taken place: Cambodians were beginning to deal with their past. The forums are one step in the overall process of national reconciliation, a trial is one step, and there will need to be others as well. Ms Chea Vannath concluded by expressing the hope that other individuals and organisations in Cambodia and in the international community will remember to seek the opinions of the victims before deciding what those steps should be.

Mr Chhang recounted a film screening in Phnom Penh last year when he had asked a group of international human rights workers: “What is the most important human right?” As many ideas were expressed, such as the freedom of speech and right of association, he told the group that all of these rights are meaningless if you are dead. The most important right is the right to life and it was this right which was so massively violated by the Khmer Rouge regime. Despite this the leaders of the Khmer Rouge remain free men and women today and their on-going impunity sends a message to the Cambodian people that our most fundamental rights do not matter.

The Documentation Center of Cambodia (DC-Cam) has for the last seven years worked to document the crimes of the Khmer Rouge regime and to promote responsible authorities to bring this evidence against the perpetrators to court. Apart from promoting justice, the Center is working with a second goal to ensure memory which, like justice, is a critical foundation for establishing the rule of law and genuine national reconciliation in Cambodia. One of the ways the Center is working to promote memory is through its monthly magazine, “Searching for the truth”.

1) The consequences of not addressing the past is that a confused sense of justice is created when petty thieves are arrested while those responsible for the atrocities of the Khmer Rouge regime walk free. Some form of justice is needed to rebuild the Cambodian judicial system and to end impunity in society.

2) In Cambodia the relationship between justice and tribunals on the one hand, and reconciliation and a truth and reconciliation commission on the other, should not be contradictory but complementary. These two measures could be combined. A trial would only be held for a small group of those who organised and ordered the genocide.
3) Mr Hammarberg stressed the importance of securing a collective memory of the past in order to connect history and to bring knowledge to the next generation. So far there have been few such efforts in Cambodia.

Mr Hammarberg further spoke about the responsibility of the international community in assisting Cambodia in its efforts to come to terms with its past and underlined that any such assistance must take into account the opinion of the Cambodian people. There is a serious need to reconsider the breakdown of the negotiations between the United Nations and the Cambodian government, thus Mr Hammarberg hoped that the United Nations would consider the open door for further discussions.
One participant, admitting he was taking the role of the devil’s advocate, wondered whether “letting bygones be bygones”, which has been the policy in countries like Spain and Northern Ireland, could not be an option in Cambodia. Mr Hammarberg responded that we cannot compare human rights violations, but on the scale and lack of response of the international community the genocide in Rwanda is the only case comparable with Cambodia since the Second World War.

Professor Frank Chalk brought up the issue of the independence of the Cambodian judiciary and also asked about the risks connected with further amnesties. Mr Sok An explained about the work to strengthen the independence of the judiciary and the separation of powers through the existing institutions. On the issue of amnesty, he stressed that Ieng Sary had been granted amnesty only because this was part of the struggle to demolish the Khmer Rouge in the interests of national security, and that the King granted the amnesty in response to a request by the Government endorsed by two-thirds of the National Assembly. The King has the right to grant amnesties according to the Constitution but, as spelled out in the Law, the government has promised not to ask the King to grant any further amnesties. Mr Hammarberg added that the Cambodian government has also made clear that it does not regard the amnesty granted to Ieng Sary as an obstacle to his appearance in court, and the court will decide if and how he may be prosecuted. However, the amnesty may well be raised by Ieng Sary’s defence in a trial.
In reply to a question from a participant, Mr Sok An expressed optimism that the process of negotiations with the United Nations will continue and confirmed that there are efforts to mediate between the parties. He claimed that the gap between the positions is not insurmountable.

Professor Chalk wondered whether one could anticipate that Ieng Sary would express remorse or would testify against other leaders of the Khmer Rouge. Mr Chhang did not think Ieng Sary would feel remorse but said that there was sufficient information about the involvement of Ieng Sary which could be used against him in a trial. To say “sorry” is not in the Cambodian culture and when Khieu Samphan officially apologised it was clear that he did not mean it. People in Cambodia did not accept this apology. The Cambodian people have very gentle blood and are willing to listen to the stories and, if there is an honest apology, forgive. Ms Chea Vannath agreed that to say “sorry” is not enough, but if people can never accept any apology, the cycle will not end: it is like opening a Pandora’s box. People want to know what happened and they also want the perpetrators to face some kind of penalty. Mr Hammarberg added that an apology that is not sincere is worse than no apology at all.
The issue of alternative measures to a trial was raised and Ms Chea Vannath spoke about the efforts to broadcast the public forums on television. Officials were reluctant to broadcast material with such potential for political sensitivity. The first forum was only broadcast after the tireless efforts of Center staff secured the intervention of the Prime Minister – although this did not extend to the other two forums. She further emphasised the need for home-made approaches and the importance that the ownership of the process must lie with the Cambodian people.
A woman from the audience spoke about the risk of prefabricated solutions like a trial or a truth commission instead of looking at the process as part of everyday life in Cambodia. Mr Chhang followed up to say that the Khmer Rouge is not about the past but is an issue of today. The Khmer Rouge legacy is the root cause of contemporary problems, such as lack of trust and weak family foundations.
In closing, both Ms Chea Vannath and Mr Chhang again emphasised the importance of public participation in the tribunal process which, according to Mr Hammarberg is also a strong argument for having a trial in Cambodia. Mr Sok An explained that the government is keeping in mind that it has an obligation to punish the leaders of the Khmer Rouge regime. Mr Hammarberg pointed out that a trial is not about putting 75- year-old men in prison, but is a question of truth. The next generation has a right to know what happened and a fair trial would further demonstrate how justice should work in reality.

Rapporteur:
Katarina Hahne, Ministry for Foreign
Affairs, Stockholm.