Crimes Covered under the KR Law

DOCUMENTATION CENTER OF CAMBODIA

Phnom Penh, Cambodia

Presented by Youk Chhang

Director, Documentation Center of Cambodia

Date: August 20, 2001

I. CRIMES COVERED BY THE KHMER ROUGE TRIBUNAL LAW

The Khmer Rouge tribunal law covers any of the crimes below, committed between April 17, 1975 and January 6, 1979. Note that some of the normal statutes of limitations have been extended to bring these crimes under the jurisdiction of the Extraordinary Chambers.

1. Homicide (1956 Code: Article 501, 503, 504, 505, 506, 507 and 508)

Homicide can be intentional, reckless or negligent. It requires the act of killing and a culpable mental state—intent to kill, reckless disregard for life or negligence. The different levels of mental state correspond to different "degrees" of homicide.

2. Torture (1956 Code: Article 500)

Torture requires the following elements

·     The accused person must have been either a public official or someone acting at the instigation of a public official.

·     The accused person must have intentionally inflicted severe mental or physical pain or suffering on his victim.

·     He or she must have done the abuse (1) to obtain information or a confession, either from the victim or another person, (2) to punish the victim for a past act or suspected act, or (3) to intimidate the victim or other persons.

3. Religious Persecution-(1956 Code: Articles 209 and 210)

Requires the deliberate persecution of another person on the grounds of the victim's religious beliefs.

4. Destruction of Cultural Property

The destruction of cultural property during armed conflict entails the destruction of artistic, literary, religious, architectural and other cultural property during war.

5. Genocide

As defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. The acts of genocide, which have no statute of limitations, mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. They include:

·     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 from one group to another group.

Attempts to commit acts of genocide, conspiracy to commit acts of genocide, and participation in acts of acts of genocide will all be punishable under the Khmer Rouge tribunal law.

6. Crimes against humanity

Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack against any civilian population, on national, political, ethnical, racial or religious grounds, such as:

·     murder;

·     extermination;

·     enslavement;

·     deportation;

·     Imprisonment;

·     torture;

·     rape;

·     persecutions on political, racial, and religious grounds; or other inhuman acts.

7. War Crimes

Committing or ordering the commission of grave breaches of the Geneva Convention of 12 August 1949, such as the following acts against persons or property protected under provisions of this Convention:

·     willful killing;

·     torture or inhumane treatment;

·     willfully causing great suffering or serious injury to body or health;

·     destruction and serious damage to property , not justified by military necessity and carried out unlawfully and wantonly;

·     compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

·     willfully depriving a prisoner of war or civilian the rights of fair and regular trial;

·     unlawful deportation or transfer or unlawful confinement of a civilian;

·     or taking civilians as hostages.

8. Crimes against Internationally Protected Persons

Crimes against internationally protected persons pursuant to the Vienna Convention of 1961 on Diplomatic Relations.

II. Pilot projects that should be established to support the establishment of the up coming mix-tribunal are:

Crucial Projects:

1. Mental Health Clinics

Mental health experts believe that the tribunal process will revive stressful memories for a certain percentage of the people who went through terrible trauma in the Khmer Rouge regime, in some cases leading to a retraumatizing of individual victims. These people will need mental health services to support them during and after the tribunal.

Yet there is no network of modern mental health care providers in Cambodia. Efforts should be made to maximize the quantity and variety of mental health support systems available nationwide during the tribunal process, ranging all the way from traditional community services (kru, monk) to modern psychological/psychiatric intervention (counseling, medical therapy, etc).

2. Legal Service for both victims and perpetrators

The tribunal law provides that those accused by the court should have access to the legal representation of their choice, but the law also prohibits foreign defense attorneys from leading the defense teams. As the UN has pointed out, this is a violation of Cambodia's obligations under the International Covenant of Political and Social Rights. Moreover, some of the accused may not be able to afford to retain the services of highly qualified attorneys, particularly those with experience in complicated cases like genocide and crimes against humanity, to assist their defense team. If the tribunal is to provide the highest quality of justice, consistent with international standards, ways must be found to provide this assistance to the accused.

The tribunal law does not provide for legal representation to witnesses who may be called before the court, or to victims who may wish to petition the court or be involved in the proceedings in other ways. Free legal services should be provided and made known to the general public so that citizens who become involved or wish to become involved in the proceedings will have recourse to competent legal advice regarding the tribunal.

3. Witness Protection Program

Witnesses called before the tribunal, or who wish to voluntarily testify before the tribunal, will face the possibility of being threatened or intimidated by parties who have an interest in the outcome of individual prosecution cases. The tribunal law specifies that the rules of procedure for the Extraordinary Court will be based on existing Cambodian judicial procedures, but it is clear that no effect mechanism exists for witness protection from potential threats to their well-being.

A group should be organized to advocate the design, funding and implementation of such procedures at an official level. If such advocacy fails, the group should be prepared to offer witness protection and potentially witness relocation services, as they are provided by various international jurisdictions such as the ICTY /R.

4. National Public Forum

Fora similar in nature to the community meetings organized last year by the Center for Social Development should be established on a nation-wide basis, preferably broadcast by radio and television. The purpose of these fora would be to disseminate accurate information about what is happening at the tribunal on a real-time, and to allow citizens a channel to express their views about the process so that national leaders can become aware of the opinions of the nation regarding this process. This would help to maximize the impact of the tribunal on national reconciliation, and prevent self-interested groups from dominating the discourse about the proceedings, potentially misleading the public.

5. Court Room Monitoring

In order for the public to be properly informed about what is happening at the tribunals, professional observers must be recruited to monitor the on-going proceedings on a daily basis and report to the public about events in the tribunal. This project could be carried out in conjunction with the National Public Forum, or could be done independently, disseminating information through electronic and printed media. It is crucial for national reconciliation that the only voices reporting on what is happening at the tribunal NOT be the government and the tribunal itself.

6. Forensics

The Documentation Center has scientifically recorded the existence of tens of thousands of mass grave pits in Killing Fields around the nation. Various kinds of evidence suggest that virtually all of these mass grave pits were created by the Santebal bureaucracy of the Khmer Rouge regime. However, we can anticipate that one argument deployed by the defense teams at the tribunal will be that the people in these mass graves were killed by the US bombing, during the war with Vietnam, or by various kinds of "traitors." In order to prove beyond a reasonable doubt that such arguments are false, forensic exhumation of a selected sample of these mass graves should be undertaken.  This kind of forensic evidence, when combined with eyewitness testimony and documentary evidence already gathered, would be sufficient to prove that the mass graves were the result of crimes by the 5hmer Rouge regime. In other conflicts, such as Guatamala, Bosnia and the Ukraine, forensic projects carried out by NGO's have yielded evidence admissible in court.

Other Useful Projects:

7. Press/Media Support

Provide informational and other services to the flood of international reporters who will come for the tribunal.

8. National/Provincial Radio

Organize regular radio programming about the tribunal for a mass audience.

9. National/Provincial TV

Organize regular TV programming about the tribunal for a mass audience

10. National/Provincial On Line/On Call

Provide web-based and telephone-based information centers so that citizens have a place to obtain unbiased information about what is happening at the tribunal, and how it might affect them and their communities. .

11. Legal Publication

Produce a series of published news reports, pamphlets, and books to inform the public about the tribunal process.

12. Petitions/Complaints Facilitation

Individuals and communities may wish to petition the court, or lodge a complaint against a defendant, but might not know how to proceed to do so; this could be done independently, or in conjunction with the Legal Service for Victims and Perpetrators.

13. Legal training (focusing on crimes mentioned in above laws)

Very few Cambodian lawyers – not to even mention the general public – has detailed knowledge about the kinds of laws which will be used to prosecute suspects at the tribunal; it is urgent that such training programs should be gotten underway.

14. Research Case Study: Child Soldiers, Ethnics group and Sexual Abuse

DC-Cam has already carried out research studies on various topics related to the Khmer Rouge regime, but we see that as the tribunal approaches, much more information is coming out, people are remembering and talking about what happened. This information should be collected, recorded and analyzed for future generations.

15. Door to Door Outreach (providing historical facts)

Many Cambodians are too timid, too fearful of the political aspects of the tribunal, or too poor to take advantage of such informational and support services as might exist. An outreach program to deliver information to such people should be started.

16. Investigative Assistance Project

Court investigators, particularly international personnel associated with the tribunal, may wish to have access to locations and persons in the provinces without having to rely directly on the resources of the government; services to assist with logistics for travel in the provinces, and finding places and people, could be offered to tribunal investigators. (ends.)