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This tribunal is a mixed panel comprising Cambodian judges and international judges supplied by the United Nations. It has been set up and functions under Cambodian law to try the Khmer Rouge leaders most responsible for the crimes committed under their rule, between 1975 and 1979.
Sihanouk was head of state of the Khmer Rouge regime until 1976 and, as such, he has been held by many Cambodians to share responsibility for those crimes. Some of those Cambodians have requested that he be stripped of immunity so that he could appear in court.
The Cambodian government sensed the real possibility that the tribunal might issue an order for him to appear. This possibility was later implied by the tribunal's U.N. deputy administrator in a letter of reply to Sihanouk's call on that tribunal to talk with him over his role and association with the Khmer Rouge. The letter said that "only the tribunal's judges are to decide who should appear as a witness." In order to eliminate that possibility, the government issued a threat that "Cambodia will kick out the Khmer Rouge Tribunal if it brings great, valorous King Sihanouk to trial."
That threat is yet another testimony that the Cambodian government is controlling the judiciary, including the tribunal. Sihanouk himself confirmed this government control in his open letter in English, dated Sept. 1, to that tribunal. In the letter he said that he "will not accept to give up the royal immunity ... unless the International Court of The Hague is given the responsibility of judging [him] and, eventually, sentencing [him] to prison." He emphatically added that he did not accept "to be judged by the Khmers [Cambodians] because there is only an indefinitely small number of independent, neutral and impartial Khmers."
The government exercises this control through the judges' membership in the ruling party, the Cambodian People's Party or CPP. This is a former communist party whose discipline and control have remained as strong as ever. The government also controls the judiciary through its open and discrete action against judges.
In May 2006 the Cambodian administrator of the Khmer Rouge Tribunal held a press conference to announce the appointment of judges and prosecutors on that tribunal. Among the questions posed was one about the party affiliations of the judicial officers, Cambodian and international. There was no straight answer to that question, but the next day Prime Minister Hun Sen publicly blasted the author of that question, calling him a "perverted sex-crazed animal" for raising the issue of the Cambodian judges' membership in the CPP, which the government has not denied, and their lack of independence.
Among the open and direct measures to control the judiciary can be cited the much publicized "iron fist" policy Hun Sen introduced in 2004, whcih was allegedly aimed at ridding the judiciary of corruption. A few judges and other judicial officers were then tried, but were acquitted later for lack of evidence.
That was enough to instill fear among all judges and prosecutors across the country, however. This drastic measure followed Hun Sen's 1999 order to rearrest people released by the courts in defiance of the principle of res judicata, or double jeopardy. That measure was allegedly aimed at combating crimes.
The United Nations, which has assisted Cambodia in the creation and running of the tribunal, is not unfamiliar with this political control of the judiciary. The U.N. secretary-general's successive special envoys for human rights in Cambodia since 1993 have all known about it and have tried in vain to wean the judiciary from such control.
In 1998, at the Cambodian government's request, three U.N. experts were appointed to explore the feasibility of a Khmer Rouge trial. In its field study of the judiciary in Cambodia in 1999, the group discovered, among other things, this political control. Together with the other drawbacks it had discovered, the group came up with a conclusion that "domestic trials organized under Cambodian law are not feasible and should not be supported financially by the United Nations."
The United Nations ignored that recommendation, however, and went ahead with its assistance to the tribunal and trials under Cambodian law. Now the issue of former King Sihanouk's immunity has put the tribunal under the spotlight of political control. No Khmer Rouge leader has been in the dock as yet, and it is a big question mark whether this Cambodian-U.N. tribunal can effectively free itself from political control, function as an independent court, and meet an expectation, among many others, that it will serve as a catalyst for the independence of the Cambodian justice system.
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(Lao Mong Hay is currently a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)
