Twenty-eight years ago this month, the Khmer Rouge came to power in Cambodia. Under their brutal rule in the late 1970s, nearly two million people were killed or starved to death. The U.N. General Assembly is expected to vote within the next week on a plan paving the way for a tribunal to bring the Khmer Rouge leaders to justice and help the Cambodian people close that chapter in their country's troubled history.
After six years of negotiations, the United Nations and the government of Cambodia last month reached a draft agreement on forming a tribunal to hear the cases of former leaders of the Khmer Rouge.
Craig Etcheson, a specialist on the Khmer Rouge period, says surveys during the last 10 years have shown that about 80 percent of the Cambodian people want to see the Khmer Rouge leaders brought to justice and made to account for the atrocities that occurred. But Mr. Etcheson notes that only about five or six senior Khmer Rouge and a few lesser figures are likely to be put on trial.
"It is clear enough that simply punishing or trying a handful of Khmer Rouge leaders will not be adequate to address all of the wounds that are remaining from 30 years of war, revolution, and genocide in Cambodia," he said. "After all, to kill upwards of two million people requires thousands of workers and hundreds of leaders. Only a very few among those will be brought to justice in the proposed tribunal, leaving many perpetrators and millions of victims wondering about justice for them."
Mr. Etcheson is an advisor to the Documentation Center of Cambodia in Phnom Penh, which contains millions of documents related to the Khmer Rouge rule. Those documents are expected to be an important source of evidence in the trials.
Once the draft agreement is approved by the U.N. General Assembly and Cambodia's parliament, it will have the force of an international treaty and will supersede Cambodia's domestic laws. Cambodia will have to make some changes in its own laws to conform to the treaty before the tribunal can proceed.
The draft agreement provides for a trial court and an appellate court with a mixture of mostly Cambodian judges and some international judges. Any verdict would require at least one international judge agreeing with the Cambodian judges.
University of Michigan law professor Peter Hammer says it is important that Cambodians be involved in deciding the fate of the Khmer Rouge. But Professor Hammer, who directs the school's Cambodia law program, says the tribunal's credibility may be harmed by political interference.
"The Cambodian judicial system has never recovered from the Khmer Rouge period, and its level of sophistication and its capacity to handle this type of task is questionable," he noted. "And secondly, the independence of the Cambodian courts has never been firmly established, and they're subject to both corruption and political manipulation."
The executive director of the Asia Division of Human Rights Watch, Brad Adams, says because of the sensitivity of the Khmer Rouge cases, they will be especially susceptible to political interference. Mr. Adams worked in Cambodia for five years and spent three years training and advising members of the Cambodian judiciary.
"On small cases, on cases that don't have any political implications, Cambodian judges can operate with independence. But whenever there were significant cases in which the government was interested, the judges told us very clearly that they were given orders by the Cambodian government how to decide cases, that they could not refuse those orders for fear of the their own safety," Mr. Adams said.
Mr. Adams says the Cambodian government views the judiciary as an arm of the government and the ruling party. Unless that changes, he says the tribunal is not likely to function properly.
"I do not know any Cambodian judges who want to touch this. Some will be assigned to this, but it will put them in a very difficult position, because they know that they will be examined by the international community very closely at the same time that they will be receiving orders from their political superiors," he said.
Mr. Adams says even more important to the tribunal's integrity than a majority of international judges would be having an international prosecutor.
"What you need really primarily is an independent prosecutor, somebody who is willing to follow the evidence and indict people based on the facts, not based on any preconceived notion," he said. "If that single change were made, the judges would be less important, because it would be very hard for judges to ignore evidence that was presented professionally in a courtroom. But prospects for having an international independent prosecutor are slim right now."
Human Rights Watch is urging the U.N. General Assembly to make some changes in the draft agreement, such as calling for an independent prosecutor, based on international standards of justice.
Mr. Adams says it is strange that international tribunals in Rwanda, the former Yugoslavia and Sierra Leone all follow international standards with independent prosecutors and at least a majority of international judges. In Cambodia, he says, the standards have been weakened.
But Peter Hammer says the negotiating process has taken too long, and any further delays could mean that more of the aging defendants may die. At least four former Khmer Rouge leaders, including Pol Pot, have died in recent years.
"If you do not act now, you are never going to act," he said. "And the real choice at this point is not whether you're going to have a perfect tribunal, which you will never have, but whether you are going to put the core members of the Khmer Rouge, who you have and where you know they are located, on trial. And to not act, I think, is a greater tragedy."
Professor Hammer says an optimistic estimate is that the tribunal could be functioning within six months. Craig Etcheson and Brad Adams point out that Cambodia's elections are scheduled for late July. They say it is not likely that Cambodia's National Assembly would be able to act before then to approve the draft agreement and make the necessary changes in the laws. Mr. Adams does not expect Cambodia to begin any serious work on organizing the tribunal until late this year.