He then contradicts himself when he correctly points out that many former KR are now in the government and bringing them all up on charges could cause instability- and then suggests the ECCC officials are unaware of this fact. But that is exactly the reason that the courts mandate is so limited both in years covered and the level and numbers expected to be tried.
He is also critical of Mr. Skilbeck's (and many others) view that this court will serve as a model court for future reforms. He says that sudden reform will be impossible- and he is right. But have any of the court officials argued that at the end of the ECCC, the entire Cambodian system will suddenly leap 20 years ahead? If so I have never heard them say it. Reform will take time, and this court will give Cambodia something to shoot for, and some Cambodian judges a little exposure to international standards, but only that.
But he is right at the end of the letter. Better not to hold it at all, then hold something that would be seen as a failure of international standards of justice.
Hard now to avoid a KRT 'show trial'
As Rupert Skilbeck pointed out ("The Principal Defender," Post, November 17, 2006), the Khmer Rouge Trial (KRT) should not be a show trial. Of course, in the pursuit of justice this demand is really important. Unfortunately, it is only applicable to the internal design of the KRT as the result of a political bargaining process over more than ten years.
In setting the framework of the trial, many paladins of the former leaders are excluded from prosecution. Furthermore, the background of some national judges of the ECCC should raise concerns whether fairness isn't threatened through their appointment. Altogether, the fairness of the trial in pursuing justice for the Khmer Rouge's crimes is hampered already by political considerations.
The KRT is very different from its historical model, the Nuremburg trials against leading Nazis and others after the Second World War. At Nuremburg, even a non-member of the NSDAP (Nazi Party) like former German Chancellor Franz von Papen or national banker Hjalmar Schacht had to stand trial. That they were found not guilty was a good argument for the Allies that the trial was not "victors' justice." Unfortunately, figures like them are not present for the KRT, especially for the periods before April 17, 1975 and after January 7, 1979 [excluded from KRT jurisdiction]. And this also avoids examining the involvement of other states in the Khmer Rouge's crimes.
In this context it is hard to understand what Skilbeck means when he argues that if the defendants are not treated fairly "no one can ever be sure what really happened." The exclusion of many years from the trial will even ensure this fact, and for 1975-to-1978 the work of famous scholars like Chandler, Kiernan or Vickery as well as the work of several local NGOs has made it clear already that the defendants are highly politically responsible. If the initiators of the KRT were not sure that the condemnation of the former leaders of the Khmer Rouge is the next logical step it is obvious that there would not be any trial.
The KRT is an indubitable show trial: it should be shown to the Khmer people that justice is possible, and this motivation should not be questioned. But is it really the highest value while there is still the possibility of political violence and instability? It must be remembered that in giving amnesty to the former Khmer Rouge leaders it was possible to end the civil war in 1998 - after nearly 30 years of war, civil war and genocide. This peace must be protected - not only in the view of the directly involved, the Khmers -and even this causes a lack of justice.
Sometimes it seems that issues like this are not present in the perception of the international lawyers and experts. It is in doubt whether they are really sufficiently informed about Khmer culture and history.
Or how can it be explained, for example, that Skilbeck claims that the KRT can improve the legal system of Cambodia? The country's legal system is used as a tool to govern and not to ensure the rule of law or horizontal accountability. This will change only over a very long period and therefore the KRT's impact will be minimal.
And if leading members of the Royal Family should give evidence as witnesses at the trial it could be very difficult in explaining this to the Khmers who still admire King Father Sihanouk, even for the Principal Defender.
If the KRT were to fail it would be better not to conduct it, for in this case it would be a show trial, too, but very different from all the positive expectations.
Markus Karbaum - PhD Candidate, Humboldt University, Berlin
As Rupert Skilbeck pointed out ("The Principal Defender," Post, November 17, 2006), the Khmer Rouge Trial (KRT) should not be a show trial. Of course, in the pursuit of justice this demand is really important. Unfortunately, it is only applicable to the internal design of the KRT as the result of a political bargaining process over more than ten years.
In setting the framework of the trial, many paladins of the former leaders are excluded from prosecution. Furthermore, the background of some national judges of the ECCC should raise concerns whether fairness isn't threatened through their appointment. Altogether, the fairness of the trial in pursuing justice for the Khmer Rouge's crimes is hampered already by political considerations.
The KRT is very different from its historical model, the Nuremburg trials against leading Nazis and others after the Second World War. At Nuremburg, even a non-member of the NSDAP (Nazi Party) like former German Chancellor Franz von Papen or national banker Hjalmar Schacht had to stand trial. That they were found not guilty was a good argument for the Allies that the trial was not "victors' justice." Unfortunately, figures like them are not present for the KRT, especially for the periods before April 17, 1975 and after January 7, 1979 [excluded from KRT jurisdiction]. And this also avoids examining the involvement of other states in the Khmer Rouge's crimes.
In this context it is hard to understand what Skilbeck means when he argues that if the defendants are not treated fairly "no one can ever be sure what really happened." The exclusion of many years from the trial will even ensure this fact, and for 1975-to-1978 the work of famous scholars like Chandler, Kiernan or Vickery as well as the work of several local NGOs has made it clear already that the defendants are highly politically responsible. If the initiators of the KRT were not sure that the condemnation of the former leaders of the Khmer Rouge is the next logical step it is obvious that there would not be any trial.
The KRT is an indubitable show trial: it should be shown to the Khmer people that justice is possible, and this motivation should not be questioned. But is it really the highest value while there is still the possibility of political violence and instability? It must be remembered that in giving amnesty to the former Khmer Rouge leaders it was possible to end the civil war in 1998 - after nearly 30 years of war, civil war and genocide. This peace must be protected - not only in the view of the directly involved, the Khmers -and even this causes a lack of justice.
Sometimes it seems that issues like this are not present in the perception of the international lawyers and experts. It is in doubt whether they are really sufficiently informed about Khmer culture and history.
Or how can it be explained, for example, that Skilbeck claims that the KRT can improve the legal system of Cambodia? The country's legal system is used as a tool to govern and not to ensure the rule of law or horizontal accountability. This will change only over a very long period and therefore the KRT's impact will be minimal.
And if leading members of the Royal Family should give evidence as witnesses at the trial it could be very difficult in explaining this to the Khmers who still admire King Father Sihanouk, even for the Principal Defender.
If the KRT were to fail it would be better not to conduct it, for in this case it would be a show trial, too, but very different from all the positive expectations.
Markus Karbaum - PhD Candidate, Humboldt University, Berlin
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