Jurisdictional and Definitional Issues
by Bora Touch, Lawyer, Syndey, Australia
A key difference between international and ordinary national courts is their competence
to try crimes of different natures, i.e., the former tries international crimes and the latter
tries domestic crimes. For the latter to hear international crimes, appropriate legal and
legitimate measures must be taken. The current formulation in relation to crimes
provisions of the draft law, in my view, is not legitimate.
Article 1 of the draft law states:
The purpose to the law is to bring to trial senior leaders of DK and those who were most
responsible for the crimes and serious violation of the Cambodian penal law and
international law and custom, and international conventions recognized by Cambodia,
that were committed during the period from 17 April 1975 to 6 January 1979.
There are two problems with this as well other articles related to international crimes: (1) It
is discriminatory in that it is only meant to prosecute the KR. (2) It is legally
inappropriate because a Cambodian national court does not have jurisdiction over these
1. Discriminatory Nature of Proceedings
Article I of the draft law is discriminatory in that it is designed to prosecute the KR only
and excludes the US whose indiscriminate bombardments, according to Report of the
Special Representative of the Secretary-General on Human Rights 1996, killed 700,000
and made 2 million others homeless just a few years before the KR took power. The law
also excludes prosecution of members of the Vietnamese/Heng Samrin/Hun Sen regime.
When Vietnam invaded Cambodia in 1979, it did not stop the killing of the Cambodian
people, it just slowed down the killing. The forced labor policy (the 1984-1989 K Plan)
remained intact which reportedly contributed to the death of at least 80,000 people, not to
mention those who were maimed or fell ill. And the regime's human rights situation
remained as bleak as ever, as pointed out by the Lawyers Committee for Human Rights
Report (1985): "daily reality is characterized by flagrant human rights violation by the
current regime, amounting to pervasive disregard for the rule of law" (p.5).
2. Status of International Crimes in Cambodia
A Cambodian national court currently does not have the jurisdiction to try the
international crimes at issue. In the notes of negotiations between the UN and the
Government, there was no mention of a plan to bring these international crimes legally
under the jurisdiction of a national Khmer tribunal. If this article stops here and is not
followed by a plan to incorporate international treaties and international crimes into the
national law of Cambodia, the tribunal will not have the competence to try crimes such as
genocide, war crimes and crimes against humanity.
Cambodia is a party to all the treaties that prohibit the above crimes, except for crimes
against humanity which are not treaty-based obligations. In 1998, crimes against
humanity were codified in the Rome Statute of International Criminal Court to which
Cambodia is not party. Even if Cambodia were a party, this Statute does not operate
retroactively. The way Cambodia currently treats these criminal treaties and treaties in
general in domestic courts gives rise to problems of enforcement of the draft law and
prosecution of those accused of international crimes, such as war crimes, by domestic
Article of 31 of the 1993 Constitution audaciously states: "Cambodia shall recognize and
respect [note: not observe] human rights as defined in the United Nations Charter, the
Universal Declaration of Human Rights, international treaties...and all treaties,
conventions related to human rights, women's rights and children's rights". And Article
26 insufficiently provides that the King shall sign and ratify international treaties after
parliamentary approval. Thus, how these treaties or conventions and rights and
obligations stipulated under them are treated in domestic legal order are uncertain, i.e.,
whether Cambodia adopted the monist or dualist concept of international law is left
In an attempt to clarify the role of these treaties in Cambodian courts, UNTAC in 1993
advised the Khmer Drafting Committee of the Constituent Assembly that "international
treaties to which Cambodia is or may become a party are applicable as law in Cambodia
as soon as they have been entered into force and are promulgated by the State".
Accepting this advice would have brought Cambodia in line with the French Constitution.
Article 53 of the French Constitution provides that most treaties require parliamentary
approval prior to ratification. Article 55 then provides for the automatic domestic
application of duly ratified treaty, which are given superiority over national statute. But
the Drafting Committee and its influential vice-president, the late Chem Snguon, rejected
the advise, thus leaving the legal status of international treaties in the dark.
This issue was clarified when the Royal Government submitted its 1997 Report to the UN
Committee on the International Convention on the Elimination of all Forms of Racial
Discrimination. In its Report, Cambodia states that "these covenants and conventions
may not be directly invoked before the courts or administrative authorities"
(CERD/C/292/add.2, 5 May 1997). It was Chem Sgnuom again who chaired this
inter-ministerial Report Committee. This is evidence that Cambodia has adopted the
dualist concept of international law and the failure to incorporate UNTAC's advice could
be viewed to have been a deliberate act by the government to attempt to block the ability
of victims of human rights abuses from seeking redress in the "national" courts.
While France adopted a monist principle, as is evidenced in the Constitution of the Fifth
Republic, the absence of effective judicial review has led to a practice in France of
incorporating treaties by means of a formal amendment of national law. "This practice,
which combines dualism and monoism, has the advantage of calling the attention of
public authorities, the courts and the general public to the law applicable" (Jean Marellet
In addition, because of the impact of these treaties on people's rights, dignity and
obligations, especially the circumstances in which Cambodia acceded or ratified these
treaties, it is fair and desirable that Cambodia adopted the dualist approach. Adopted
otherwise may not be appropriate as Cambodian parliament has not had the chance to
have article-by-article debate on these treaties before its accession or ratification. In fact,
most, if not all, of the treaties to which Cambodia has acceded or ratified were ratified or
acceded to by way of an executive act. For example, in a letter dated 19 August 1950,
Son Sann, in his capacity as the Foreign Minister to the UN Secretary-General, stated:
"the Government of His Majesty the King of Cambodia, by the Council of Ministers
expressly declared accession by the Kingdom of Cambodia to the Convention against
Genocide set out in the conditions of article 11 of that Convention". There was no debate
by the Cambodian parliament. Also, just having parliament approve the accession before
or after it took place without a debate would be a rubber-stamp; hence, it is at best an
offence to the system of parliamentary representative and at worse unconstitutional. Nor
is it desirable "if the legislative is confronted with the fait accompli of a ratified and
internationally binding treaty, [because] the legislative decision [would be] far from free.
Democratic ground rules require that a parliament should participate in treaty-making in a
meaningful way and should not be reduced to an a posterior acclamation by way of
slowing willy-nilly a strong government's lonely decision" (Wildhaber 1968).
It is not sufficient for the draft law merely to state that the Tribunal has the jurisdiction to
try "crimes of Genocide as defined in the [Genocide Convention]" as stated in article 4.
The same can be said of articles 5, 6, 7 and 8 because, as said above, for a Cambodian
national court to try international crimes, Parliament must pass a specific piece of
enabling legislation before the tribunal can hear these international crimes. This practice
is seen in the UK, the US (except for "self-executing" treaties), and Australia, which has
enacted the Geneva Convention Act (1957), Genocide Convention Act (1949), War
Crimes Act (1945), Crimes (Internationally Protected Persons) Act (1976), and Crimes
(Torture [Convention Against Torture and Other Cruel Inhumane or degradating
Treatment of Punishment]) Act (1988). Failure to enact specific legislation could result
in KR defendants walking free on the basis of preventable procedural errors.
Article 3 of the draft law states: "the statute of limitations set forth in the 1956 Penal
Code shall be extended for an additional 20 years". This addition of time to the
applicable statute of limitations might not survive a strict constitutional review as the
current Constitution prescribes that criminal statutes have to be construed in favor of the
accused. Perhaps the better option would be for the Parliament to pass legislation
to simply re-ratify or re-effectuate the pre-1975 Penal Code.
Article 4: Genocide
Perhaps the reason that the Genocide Convention requires specific incorporation by
legislative statute is because the Convention definitions are extremely broad - as an
international law scholar pointed out, the first fundamental flaw of the unreserved
Genocide Convention is the question of focus and the question of definition. In terms
derived from a legal system, the definitions given in article 2 and 3 of the Convention
[and 4 of the Draft law] are vague and overbroad, arbitrary and capricious, and statutorily
unreasonable both in construction and application. They are in breach of substantive due
process and could not withstand strict constitutional scrutiny of any fair court.
Article 2 of the Convention states:
In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The definition of each of these acts may raise problems of ambiguity: (a) "Killing
members of the group" does not allow for any defenses; (b) "Causing serious bodily harm
to members of the group" does not specify the degree of the mental harm or distinguish
whether the injury includes psychological disorientation of a temporary nature; (c)
"Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part" can lead to charges raised by minority groups
suffering from economic disadvantage such as living in less fortunate conditions in, for
example, ghettos; (d) "Imposing measures intended to prevent births within the group"
can lead to complaint directed against governmental agencies promoting contraception or
against governments or governmental officials for allowing the practice of abortion (the
pro-life terrorists could end their bombings, and could concentrate instead upon
paralyzing courts with a flood of genocide actions); and (e) "Forcibly transferring
children of the group to another group" may involve the placing of dependent minority
children in foster homes (Robert Friedlander 1986).
Like the Convention, the draft law fails to specify the size of the potential victim group in
article 4; thus, it may raise a possibility that a single victim of the group may be sufficient
to substantiate a genocide charge.
The draft law also incorporates into the definition of "genocide" acts of conspiracy,
attempt and complicity. The word "complicity" is translated in Khmer as "choul ruom"
and the English version of the draft as "participation" - both words are legally
unintelligible. Also, "none
of these punishable forms of conduct contain any material elements whatsoever. There is
no indication as to what method of legal analysis obtain for ascertaining the required
criminal liability connected with the aforementioned activities" (Robert Friedlander
1986). In addition, conspiracy (an agreement to commit an illegal act) is dissolved once
the act conspired to has been committed, as in the case of the KR. And complicity in
itself is not a crime. It is poor drafting and useless to mention it here as it is mentioned
in article 29.
The problem of inadequate definition may in fact result in genocide charges against
Khmer Rouge leaders being dismissed: Under the Convention, killing of ones own
national group (i.e., Cambodians killing Cambodians) is not considered an act of
genocide. Therefore, based on the definition of genocide found in the Convention
and incorporated into the draft law, the Khmer Rouge cannot be found to have
committed genocide against Khmers, although what they did may certainly constitute
other crimes under international law.
Further, charges against the Khmer Rouge for acts of killing minority groups may be
unsubstantiated for the following reasons: (a) there was no state policy to eliminate them
- the Khmer Rouge Directive issued in 1976 regarding minorities is far from useful as
evidence against them; and (b) many of the top and notorious KR leaders in fact
themselves came from these various ethnic groups. For example, Ieng Sary and Son Sen
are of Sino-Vietnamese ethnicity; Pol Pot, Ta Mok, Khieu Samphorn and Tuol Sleng
chief Duch were Sino-Khmer; Thiounn Prasith was of Vietnamese ethnicity (his
grandparents were of Vietnamese origin). (c) Evidence indicates that ethnic minorities
also took part in torturing and killing people. For example, one of the ruthless torturers of
Tuol Sleng was a Cham by the name of Seum Mal. Mat Ly, another Cham (now a
member of the CPP Central Committee), was also a high ranking KR cadre. A Khmer
Loeu (Cambodian highlander) by the name of Savonn who succeeded Pol Pot's adopted
son Phum was one of the cadres in charge of the B-30 or Boeng Trabek Re-education
Camp - out of more than a 1000 returnees only about 250 survived this camp. Y Chhien,
the Pailin govenor, is also a Khmer Loeu-Jarai, Gen. Bou Thong is Khmer
Loeu-Tampuan, Gen. Soey Keo is Lao, Say Phuthong is Thai, and Ny Korn is
Article 5: Crimes against Humanity
This provision in the draft law is worse than the genocide provision because of its
ambiguity. Elements of crimes against humanity are still largely unsettled. Without
precise definitions, trials for crimes against humanity will not result in justice for the
victims and again will enable defendants to walk on the grounds of ambiguity or
There is a discrepancy between the Khmer and English version of the draft. In Khmer,
the draft refers to "tweou manukheat" meaning manslaughter; but in the English version,
it reads "murder". In Cambodian UNTAC law, killing of human beings are classified into
three categories: (1) kheatakam or murder, (2) manukheat doul chetana or voluntary
manslaughter; and (3) manukheat achetana or involuntary manslaughter. It is not certain
whether the drafters mean number (2) or number (3) but it is obvious that they meant one
of the two. If so, then an act of murder is not a crime under this provision, which is
absurd. It is not an exaggeration to say that the drafters neither know the law nor
understand English properly. The translation of the crime provisions from English to
Khmer is imprecise, almost childish in language, creating a dangerous ambiguity.
While the draft law includes the crime of enslavement, it fails to include the crime of
forced labor that the UN experts recommended. The drafters may not have understood
that there is a difference between the two crimes and each requires different elements be
proven for guilt. A defence attorney could argue that forced labor during the KR era did
not constitute enslavement since produces and products of the labor (at least in theory)
belonged to the people collectively. It is also possible that the failure to incorporate the
crime of forced labor was deliberate so as to avoid implicating the Hun Sen regime in its
implementation of the K Plan.
Articles 6, 7 and 8
Articles 6, 7 and 8 of the draft law are ambiguous and simply refer to the relevant
international treaties, about which most current sitting Cambodian judges have little or no
Article 29: Individual responsibility
The intention of this article appears to be to cover complicity; thus it overlaps with
article 4 regarding "participation in acts of genocide". Complicity in itself is not a crime
under Cambodian law. Rather, complicity extends liability. To put the word "plan" here
is also legally unintelligible. Does this mean that the drafter wanted to criminalize
planning? The word "planning" does not belong in the law of complicity and is vague.
In Cambodian criminal law, for an act, e.g., an act of murder, to become a criminal act,
the act must have at least reached its third stage. The stages are: (1) intent, (2)
preparation (planning), (3) commencement, and (4) accomplishment. Acts that are at
stage (1) and stage (2) do not constitute a crime. However, when an act reaches stage (3),
e.g., when the illegal act has been commenced but failed to kill the target, it would
constitute an "attempt". At stage (4) if the act was accomplished, it would constitute a
"murder". Thus, it is uncertain what the drafters really meant by the word "plan." What is
the reference to "planning" in the law intended to mean?
As stated above, the draft law in its current form is flawed. It does not provide for basic
legal defences nor mitigating circumstances, and this is despite the recommendation by
the UN legal experts that defences should be included in the draft. What happens to those
who committed the crimes of which they are accused but who were insane, coerced,
and/or totally ignorant of state policy at the time, especially offenders who were minors
and perhaps brainwashed to believe that killing was the way of life and state obligation?
In this respect, this draft law runs against all principles of justice.
Article 36: Appeal by accused, victims and prosecutor
Allowing an accused to appeal may be legally acceptable to a certain degree, but allowing
the victims and prosecutor to appeal on the basis of an error of fact and of law is in
violation of the principle of double jeopardy stipulated in the International Covenant of
Civil and Political rights of which Cambodia is party.
Article 40: Pardon and Amnesty
The terms "pardon" and "amnesty" are not defined, thus their effect and affect are
unknown. The words "loeklaengtoh" for pardon and "travbraneitoh" for amnesty in the
legal context are not correct as the terms "loeklaengtoh" and "travbraneitoh" are
synonymous in Khmer. The legal significance of pardons and amnesties are different,
however. Pardon is used for post-conviction release and amnesty for pre-conviction
release. The proper Khmer word for amnesty is "neetooskamm".
There is also a great discrepancy between the English and Khmer versions of the draft
law. In English, it reads that the Royal Government "shall not request an amnesty or
pardon for any person who may be investigated for or convicted of crimes". It is clear in
the English version that neither pre-conviction amnesty nor post-conviction pardon is
permitted. However, in the Khmer version, it reads that the Royal Government "shall not
request loeklaengtoh [a pardon] for convicts who have committed crimes". This leaves
open the possibility for pre-conviction amnesty by the Government.
The only thing that is clear in the draft is a firm control by the Cambodian Government,
more precisely the CPP, over the judicial process. It surprised no one when the
Vietnamese and other foreigners assisted the farce of a "genocidal trial" of KR leaders in
1979; but it is sorrowful for the UN to do the same with a regime that rules with impunity
and toleration of its own people's murder. Victims of the Khmer Rouge need justice. But
to have a KR trial at all cost and at the expense of the rule of law and actual justice is not
the answer. Cambodians deserve all or nothing. The UN should not compromise the
standards of international law and human rights.