[ { "id": 216380, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 139, "title": "RAS-2003", "content_text": "JUSTICE, LAW, AND THE PROPOSED TRIBUNAL FOR THE KHMER ROUGE\n\nRODERICK O'BRIEN\n\n89\n\n1. Background: the Khmer Rouge in context 2. Background: the Proposed Tribunal\n\n3. The Structure and Processes of the Tribunal\n\n4. Retributive Justice\n\n4.1 Retributive Justice and Closure by Legal Statement 4.2 Retributive Justice and a Culture of Impunity\n\n4.3 Retributive Justice and Revenge\n\n4.4 Retributive Justice and Individuals\n\n5. Restorative Justice\n\n5.1 Restorative Justice and the Individual Criminals 5.2 Restorative Justice and the Individual Victims\n\n6. Distributive Justice\n\n6.1 Distributive Justice and a Fair Trial\n\n6.2 Distributive Justice and Fair Trials\n\n6.3 Distributive Justice and the Justice system\n\n6.4 Distributive Justice and Legal Aid\n\n7. Law, Justice, and Other Values\n\n7.1 Discovering the Truth\n\n7.2 From Truth to Reconciliation\n\n7.3 Ending Hostilities\n\n7.4 Building a post-Conflict Society\n\n8. Conclusion\n\n1. Background: The Khmer Rouge in context\n\nTo situate the proposed tribunal in its historical context, a brief survey of Cambodia's history since independence may be useful:\n\n1954-1970 The Kingdom of Cambodia\n\nCambodia had been under French colonial rule in various forms since the nineteenth century (apart from a short period of Japanese rule late in the Second World War). Independence was declared by King Sihanouk in 1953, and recognised at the Geneva Conference of May", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216382, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 141, "title": "RAS-2003", "content_text": "91\n\n1993-now Kingdom of Cambodia\n\nSihanouk returned as king, and the name Kingdom of Cambodia was again used. The Khmer Rouge withdrew from participation in the political process, and continued armed conflict until 1997. As the military strength of the Khmer Rouge declined, this conflict became more and more sporadic.\n\n2. The proposed Tribunal\n\nThe atrocities of the Khmer Rouge began to be documented in the period of the People's Republic of Kampuchea. For example, the S-21 \"Tuol Sleng\" was established from 1975 to 1978 as a security office for interrogation and extermination of prisoners. The site, in a suburban Phnom Penh high school, has been a museum to the victims since 1980. Assessment and documentation of the many cases has continued through the subsequent two decades, and a substantial record is maintained by the Documentation Centre of Cambodia (DC-Cam).\n\nIn 1979, the PRK government had held a trial, in which Pol Pot and Ieng Sary were convicted and sentenced to death in absentia for their crimes. However, the trial was not accepted internationally because of concerns about the processes, and because of the diplomatic isolation of the PRK government.\n\nResponses to the atrocities in the former Yugoslavia, and in Rwanda, included the establishment by the United Nations of international tribunals at The Hague and at Arusha, respectively. International pressure for some kind of legal resolution of the atrocities in the period of Democratic Khmer also increased, as did pressure within Cambodia itself.\n\nIn 1997, the Cambodian government asked the United Nations for assistance in organising a process for the Khmer Rouge trials. This led to the adoption of a resolution in the UN General Assembly in December 1997, enabling the Secretary-General to negotiate. Negotiations dragged on, with Cambodia producing a draft law in 1999, and that law passed the National Assembly in 2001.2 The United Nations negotiator, Hans Correll, objected that the law did not give effect to the agreement between the United Nations and the Royal Government. Early in 2002,", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216386, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 145, "title": "RAS-2003", "content_text": "95\n\n5.1 Restorative Justice and the Individual Criminals\n\nCriminal justice systems, both nationally and internationally, focus on the perpetrator of crimes. The central person in the criminal trial is the perpetrator as defendant, and it is his or her rights in the process which are usually the subject of attention. Certainly, restorative justice has a role for the perpetrator, and through trial and imprisonment works to restore harmony in the community through restoring the wrongdoer to the community. If there is no chance of restoration, the wrongdoer has no process for acknowledgement of crimes, for forgiveness, and even no process for accepting appropriate punishment. Unless the wrongdoer can be included in the restorative process, there is no choice but to remain an “out-law”,\n\nBut the boundary between perpetrators and victims may not be clear. A specific problem in the Cambodian story has been that perpetrators have themselves been victims. For example, child prisoners of the Khmer Rouge were brutalized and themselves became perpetrators. The brutalization of children and their use as perpetrators is also known in other conflicts, for example in Uganda and in Sierra Leone.\n\n5.2 Restorative Justice and the Individual Victims:\n\nGenerally speaking, trial systems which focus on the perpetrator are not sufficiently attentive to the individual victims. Indeed, the process of a trial, with its necessary testing of evidence, may operate to \"re-victimise\" the victim. Restorative justice demands a process in which the restoration of the victim is also a key focus. At the international level, the Tribunals for the former Yugoslavia and for Rwanda gradually developed procedures for the protection and counselling of witnesses, usually victims. The procedures of the new International Criminal Court have taken a step forward by providing for compensation for victims, as well as protection and counselling.\n\n6. Distributive Justice\n\nDistributive justice is concerned with the allocation of resources and of opportunities within a society - including international societies. The concept of distributive justice underlies the International Covenant", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216387, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 146, "title": "RAS-2003", "content_text": "96\n\non Civil and Political Rights, and the International Covenant on Social, Cultural and Economic Rights, in claiming that rights inhere in individuals and in communities to a fair allocation of the earth's resources and opportunities. This includes access to the legal system.\n\n6.1 Distributive Justice and a Fair Trial\n\nMany international conventions and other instruments emphasise the right to a fair trial, although they may differ in practice as to what such a trial might involve. Article 13 of the Agreement of March 2003 refers to the right to a fair and public hearing, to be presumed innocent until proved guilty, to engage a counsel of his or her choice, to have adequate time and facilities for preparation of defence, to have counsel provided if lacking means to pay for one, and to examine the witness against him or her.\n\nThe issue which caused the United Nations to withdraw from negotiations with the Royal Government was the question of a fair trial. The Khmer Rouge had particularly targeted intellectuals of various kinds, including lawyers. The courts formed in the aftermath of the Khmer Rouge regime were created using judges with few if any legal qualifications. Prosecutors had even less legal formation.1 Besides the lack of trained personnel, participants and commentators have drawn attention to the lack of independence of judges and prosecutors, who are subjected to government interference.1 The recent history of Cambodian governments suggests that the concept of judicial independence is an alien concept: courts are expected to respond to government directives.1 Even in the absence of interference, the prosecutors may claim that they lack the funds to carry out investigations.\n\n6.2 Distributive Justice and Fair Trials\n\nDistributive justice requires that like cases should be treated alike. But the proposed tribunal for the Khmer Rouge is limited in jurisdiction to one period in Cambodia's history, the period of Democratic Kampuchea. Yet commentators have pointed out that there may have been breaches of law committed by other participants in the long-running wars which have affected Cambodia.12 If these are excluded from scrutiny, then the legal process becomes a kind of \"victor's justice\"", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216392, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 151, "title": "RAS-2003", "content_text": "101\n\nissues may be left unresolved, at least there is some hope for the future, and concentration on building a peaceful future can be a common task, uniting former enemies.\n\nWhere the end of the conflict has not been achieved through military victory, but through a negotiated settlement and through the use of amnesties, the settlement may be too fragile to bring perpetrators to justice. This is especially the case where there have been too many injustices, and where all sides to a conflict have something to fear.\n\nThe current Cambodian Prime Minister, Hun Sen, has used this kind of language to argue against legal resolution of old injuries, saying in 1998: “If the wound does not hurt, should we poke a stick into it and make it bleed again? If we bring the pair [Nuon Chea and Khieu Samphan, who defected from the Khmer Rouge to the government in December 1998] to prison…it could lead to renewed civil war.”24\n\nAn additional factor in the Cambodian situation is the time that has elapsed since the end of the Khmer Rouge rule: nearly a quarter of a century has elapsed, and many of the protagonists have died. \"Brother Number One\" of the Khmer Rouge, Pol Pot, died on 15 April 1998. Half of the Cambodian population has been born since that time. The issues are important, but they do not have the same importance for those who were not directly involved.\n\nOne writer has suggested that the policy of trial of a few leaders, and exemption for the mass of perpetrators, is the \"middle way\" policy for Cambodia, and the most likely to contribute to building a peaceful future.25\n\n8. Conclusion\n\nThe past, and in particular the scale of the atrocities under the Khmer Rouge, necessitate a tribunal which can deliver retributive justice is still a requirement despite the long passage of time since the events in question. The future, including both the personal resolution of issues for victims, and the dismantling of a culture of impunity, also necessitate such a tribunal. In practice, the Extraordinary Chambers will be limited to a few cases, and will not be responsible for retributive justice across the whole population.", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216393, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 152, "title": "RAS-2003", "content_text": "102\n\nNevertheless, the use of the tribunal can only be one step in the long process of rebuilding Cambodia. Simultaneous efforts must be made to create, almost from nothing, a viable and just legal system. The slow process of individual and community reconciliation must also be pursued.\n\nREFERENCE WEBSITES\n\nDocumentation Center of Cambodia [DC-CAM] www.bigpond.com.kh/users/dccam.genocide\n\nRoyal Government of Cambodia: The Khmer Rouge Trial Task Force www.cambodia.gov.kh/krt/\n\nPhnom Penh Post www.phnompenhpost.com\n\nNOTES\n\n1 See Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135 (Feb 1999) Annex. UN doc A/53/850, S/1999/231.\n\n2 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea. (10 August 2001) NS/RKM/0801/12.\n\n* \"Draft Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea\" 17 March 2003. See UN General Assembly: Report of the Secretary General on Khmer Rouge Trials, UN doc A/57/769, 31 March 2003.\n\n4 UN Doc GA/10135 (13 May 2003).\n\n5 Vong Sokheng and Richard Woodd: \"Jumbo cabinet ends stalemate\" Phnom Penh Post, 2-15 July 2004, page 1-2.\n\n6 Yun Samean: “Hun Sen Says Only UN Can Arrest KR”, Cambodia Daily, 7 June 2004, page 1-2.", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216394, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 153, "title": "RAS-2003", "content_text": "103\n\n'Decision to Establish the Task Force for Cooperation with Foreign Legal Experts; Decree 55$Sr, 10 August 1999.\n\n* Ea Meng Try: Victims and Perpetrators? Testimony of Young Khmer Rouge Comrades, Documentation Center of Cambodia, Phnom Penh, 2001. See also Rasy Pheng Pong: \"Tuy Kin: A Traumatized Perpertrator\" Searching for the Truth, special English Edition, Third Quarter 2003, page 23.\n\n* Sok Siphana: Formation of a Legal and Judicial Reform Strategy for Cambodia, Cambodia Legal Resources Development Center, Phnom Penh, 2002, page 41-42.\n\n\"See the statement of the Bar Association of the Kingdom of Cambodia, the Cambodian Defenders Project and Legal Aid of Cambodia reproduced in Michael Hayes: \"Cambodian Lawyers United for UN Trial”, Phnom Penh Post, page 1-14 October 1999.\n\n11 See CUL Seminar on Judicial Functions, Phnom Penh, 5-23 July 1993, reproduced in Basil Fernando (ed) Problems Facing the Cambodian legal System, Asian Human Rights Commission, Hong Kong, 1998, at page 133.\n\nTom Fawthrop: \"Khmer Rouge trial makes legal history\", Phnom Penh Post, 5-18 January 2001.\n\n11 Richard Woodd: \"Guillotine aimed at KR trial funds\", Phnom Penh Post, 2-15 July 2004, page 1 and 3.\n\n14 See Stephen Heder with Brian Tittlemore, Seven Candidates for the Prosecution: Accountability for the Crimes of the Khmer Rouge, 2nd edition, 2004, Documentation Centre of Cambodia, Phnom Penh, page 1.\n\n15 Australia, for example, has supported capacity building of the Cambodian legal system, and has also committed to a voluntary contribution for the proposed Tribunal.\n\n16 See, for example, the Report to the General Assembly A/58/268 (15 August 2003) Role and Achievements of the Office of the United Nations High Commissioner for Human Rights in assisting the Government and people of Cambodia in the promotion and protection of human rights.\n\n17\n\n\"Ea Meng Try: Justice and Reconciliation, MA Dissertation, Coventry University, September 2003, page 27-31.", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 }, { "id": 216395, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-2003", "page_number": 154, "title": "RAS-2003", "content_text": "104\n\n18 Article 90, Protocol I of 1977 to the 1949 Geneva Conventions.\n\n19\n\nRobyn Dixon: \"In South Africa Truth is Easy, Reconciliation Hard\", Cambodia Daily, 23 June 2004, p9.\n\n20 Ea Meng-Try: Justice and reconciliation, op cit p49-50, and 57-58. Anon: Using Buddhist Values and Human Rights to Promote Free, Fair and Secure elections in Cambodia, Cambodian Institute of Human Rights, Phnom Penh, November 1997, p36 and p40.\n\n21 Komai Hiroshi; The Role of Buddhism in the Reconstruction of the Cambodian Rural Villages, paper presented at the National Socio-Cultural Research Congress on Cambodia, Royal University of Phnom Penh, 19 December 1997, p.25\n\n22 Thomas Michel: \"The Ethics of Pardon and Peace\" Sedos Bulletin vol 36, no3/4, March-April 2004, pp89-94.\n\n23 See Carla Bongiorno: \"The Cambodian Backpacker Murders and Khmer Rouge Immunity\", Australian Journal of Asian Law, 2001, no 3, pp261-279.\n\n25\n\nQuoted in Yun Samean: \"Prosecutor Defends KR Leader Arrest Order\", Cambodia Daily, 8 June 2004, p1.\n\n26 Chhay Yiheang: \"The dialectic of a Khmer Rouge trial\", Phnom Penh Post, 29 September - 12 October 2004.", "txt_file_path": "txt/dfo323lmgvd/RAS-2003.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/2v242g390", "rank": 0 } ]