Key aspects of the Government's latest proposal on the Khmer Rouge tribunal include

Cambodian jurisdiction for the trial and the appointment of judges by the Supreme

Council of Magistracy.

After finishing weeks of research and consultations with foreign legal experts, government

lawyers are now ready to begin drafting the actual wording of their second draft

law on a forthcoming Khmer Rouge tribunal. The draft is expected to be finalized

within a few weeks.

At a meeting yesterday, leading government lawyer Heng Vong Bunchhat briefed the

National Assembly and Minister of the Council of Ministers, Sok An, about the progress

of the legal unit working on the draft law.

"We have now gathered all available observations on the subject. There is no

longer a lot of work ahead of us," says Bunchhat.

The new draft law will include a certain number of changes compared to the government's

first tribunal proposal, that was presented to a group of UN experts in late August.

"We had to draft the first proposal very quickly in order to have it ready for

the experts' arrival. This time we have had more time for preparations," says

Bunchhat.

While he refuses to reveal details about the draft law's contents before it has been

submitted to the proper legislative bodies, Bunchhat points out that the tribunal

will take place within national Cambodian jurisdiction.

The trial judges will be appointed by the Supreme Council of Magistracy. It is still

an open question whether that will allow the appointment of foreign, international

judges.

"The government is certainly not opposed to international judges. But it has

to be in accordance with our constitution. And that is up to the National Assembly

and the Constitutional Council to decide," says Bunchhat.

However well-prepared, the new draft law is almost certain to meet criticism and

skeptical reviews, as legal experts have been continuously clashing over how to set

up a tribunal on the proper legal basis.

Among the controversial issues is the question of what legal grounds to base the

charges on. Cambodia has currently no national legislation dealing with genocide,

crimes against humanity or war crimes - although it ratified the international Genocide

Convention in 1950.

Ta Mok and Duch, the only two KR leaders currently imprisoned, have been charged

with treason against the revolution under a decree-law from 1980. This decree-law

was superseded by UNTAC Law in 1992 and is legally void.

It may therefore be necessary to draft a whole new law on which to base the charges

against former KR-leaders. But that creates a conflict with international legal precedent

which dictates that if there is no law in force at the time of the alleged offense,

then there is no crime.

The Nuremberg trials after World War II have repeatedly been criticized for using

retroactive laws to convict Nazi perpetrators.

However, professor of public law Claude Gour, who is acting as an independent advisor

to the government on this and other legal matters, says the questionable use of retroactive

laws should not pose an obstacle.

"Retroactive [laws] were still used at Nuremberg. My general opinion is that

we have to do what it takes to obtain justice for the Cambodians. That also applies

to the question of retroactivity," says Gour.

Also, while retroactive legislation is likely to be contested in court by the defense,

judges can overrule the objections in the first case by referring to international

custom and thus create a precedent.

Another question is what crimes the new law should deal with. The Genocide Convention

defines genocide as destructive actions against a national, ethnic, racial or religious

group. Scholars argue that this can be applied to the KR killings of Vietnamese or

Buddhist monks, but hardly to the general mass murdering of Cambodians.

"It has been established that the concept of 'auto genocide' does not exist.

Therefore, the government's first draft law [from late August] included social and

economic groups in the definition of genocide. But if the alteration of the definition

is not acceptable, crimes against humanity will have to be the main charge,"

says Gour.

To many Cambodians the debate about retroactivity and genocide definitions may however

be completely academic and irrelevant. Through extensive contact with hundreds of

victims and their families, Director of the Documentation Center of Cambodia, Youk

Chhang, finds that most Cambodians have no interest in the finer legal details.

"They don't care whether the former KR are charged with genocide or simply with

murder. What concerns them is that the people who made them suffer are arrested and

punished for their actions," explains Chhang.

Gour, whose connection to Cambodia dates back to the 1960s, agrees and points out

that the main purpose of the tribunal is exactly to find justice for those victims

of the KR regime.

"If I were a Cambodian, my reaction towards all those lawyers and experts would

be: 'They don't care about me,' and I would be very upset."

"It's really very simple. We know that horrible crimes were committed. Now we

have to find a way to punish those who were responsible."

Cambodia scholar Steve Heder does not agree with Gour's approach to the legal and

social aspects of a KR tribunal.

"Proceeding on the basis of an assumption that the accused are guilty, regardless

of the evidence, is not the kind of education in justice Cambodia needs. What it

needs is a lesson in the international jurisprudence of the late 20th century, not

just another reinforcement of colonial and communist practices of 50 years ago,"

argues Heder.

The conflicting opinions raise the question of whether a KR tribunal should be seen

as an example of strictly legal justice or more as a moral instrument to punish those

who took part in the wrongdoing.

In a strictly-by-the-book trial the possibility obviously exists that defendants

are acquitted or cases dismissed because of legal technicalities or procedural errors.

The International Criminal Tribunal for Rwanda recently dropped its case against

a high-profile genocide suspect on the grounds that his rights had been violated

due to prolonged detention without trial.

Both Ta Mok and Duch have now been held in pretrial detention for more than six months

and charged on precarious legal grounds. While the problem of charges can be solved

by releasing them and immediately rearresting them under a new law, the prolonged

detention period would still pose a problem in a court of international standards.

This creates the possibility that their cases could be dismissed and Ta Mok and Duch

released.

"If Duch and Mok were to be released because of violations of their rights,

then most Cambodians would understand that this was the fault of those who violated

their rights and thus perverted the course of justice in advance," says Heder.

"The lesson for Cambodians and all of us if this were to occur would be that

unless the rights of the accused are protected, then truth and justice are impossible

and that what therefore is needed in Cambodia is further attention to this as well

as other issues related to fair trial procedures."

And even if all legal procedures are followed to a tee, prosecutors may still encounter

difficulties presenting enough evidence to justify a conviction of genocide, crimes

against humanity or war crimes.

"The Nuon Cheas and Moks and Duchs are not problematic at all. But in cases

like Ieng Sary and Khieu Samphan the precise contours of their authority and actions

remain slightly ambiguous in terms of the empirical evidence," says genocide

researcher Craig Etcheson of the International Monitor Institute.

"But maybe under the 'moral instruction' model such details are less important

than the 'big picture'," Etcheson adds.

While it may not be acceptable to the international community, Chhang points out

that convictions for lesser crimes like torture or accomplice to murder will also

be satisfactory for the millions of Cambodian victims, whom he sees as the owners

of the KR case.

"I'm not saying that we should change the law to ensure convictions. Nor should

the truth be reshaped. But many crimes will fall into several different categories.

If it is not possible to prove participation in genocidal crimes, other ways must

be found to punish the perpetrators. This is the job of the legal experts,"

says Chhang.

"The important thing is to let all Cambodians participate in the process and

educate them about what is happening, who is convicted for what crimes and why. What

frightens me most in connection with a KR tribunal is the risk that it turns out

to be a process only witnessed and followed by the few."

Chea Vannath who is president of the Center for Social Development also expresses

concern about the role of the Cambodian people in how to deal with former KR.

"There will always be legal loopholes and we will just have to deal with them.

What bothers me is that nobody has ever seriously and objectively asked the Cambodians

themselves how they feel about this," says Vannath.

"In our constitution we have the provision to set up national forums for the

public to discuss and express themselves freely. Why don't the government use this

to determine what the Cambodians really want?"