Jurisdictional and Definitional Issues by Bora Touch, Lawyer, Syndey, Australia JURISDICTIONAL ISSUES 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 international crimes. 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 tribunals. 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 unresolved. 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 1970). 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. DEFINITIONAL ISSUES 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 Sino-Khmer. 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 procedural difficulties. 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 knowledge. 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. CONCLUSION 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.