In order to discuss these questions, last month, FIDH, ADHOC and LICADHO jointly organised a conference in Phnom Penh, which gathered together main civil society organisations in Cambodia and international experts. The recommendations made public today are largely based on the discussions which took place at that conference.
« We consider that a number of measures could and should be adopted by various actors concerned in order to allow the KRT to accomplish its task efficiently, professionally, independently and impartially », said the representatives of FIDH, ADHOC and LICADHO.
FIDH, ADHOC and LICADHO call on the Cambodian authorities, the future judges at the KRT, the United Nations and the international community to ensure that the judges, prosecutors and staff of the future tribunal be individuals of integrity, who are adequately qualified and independent. These organisations also call for the adoption of measures to ensure that victims and witnesses, whose participation in the trials will be crucial, be well informed of their rights and benefit from adequate protection. Consultation with civil society is also essential, notably on the appropriate forms of reparation for victims, particularly collective and symbolic forms of reparation.
The results of the donors meeting on 28 March 2005 means that the financial support pledged for the KRT will come close to the full amount required, so that the it appears that the Tribunal will soon become a reality. "There are many challenges and obstacles ahead that must be overcome if the KRT is to deliver fair and independent justice. We are hopeful that today’s recommendations will help to ensure that this challenge is met", concluded FIDH, ADHOC and LICADHO.
The full report of the 2-3 March Conference on "Articulation between the KRT and the ICC: the place of the victims" will be available by the end of April on the following websites:
http://www.fidh.org
http://www.licadho.org
http://www.bigpond.com.kh/users/adhoc/
Press contact : +33 1 43 55 25 18 / 1412
Recommendations concerning the Khmer Rouge Tribunal and its articulation with the International Criminal Court
The first set of recommendations concerns the Khmer Rouge Tribunal (KRT) while the second set regards the International Criminal Court.
1. The Extraordinary Chambers for Democratic Kampuchea (KRT)
Considering the importance of judging international crimes committed by the Khmer Rouges between 1975 and 1979
Considering that recent polls carried out by Cambodian NGOs showing that the overwhelming majority of the Cambodian population wish to see the authors of those crimes prosecuted
Considering that the UN and the government of Cambodia signed an Agreement in regulating the international involvement in the KRT
Considering that the National Assembly adopted domestic legislation establishing the KRT in 2001, revised in 2004
Considering that the UN SG made clear that the process of setting up the KRT can only be initiated once the full budget for all three years has been pledged and the first year is in the bank account
Considering that a donors conference took place on 28 March 2005
Considering that a number of international donors already pledged to support the KRT with close to the full amount of fund pledged
Considering that the majority of the Khmer Rouges senior leaders are aging and that there is consequently urgency to try them
Considering that civil society organisations raise serious concerns regarding the independence and impartiality of judges and other personnel of the future KRT
Considering that many Cambodian and international NGOs working in different fields have adopted varying but largely complementary strategies in view of the establishment of the KRT
Considering that other NGOs are still considering what their approach should be with regard to the KRT
Hoping that free and fair trials by the KRT will lead to better administration of criminal justice in Cambodia
Recommendations to the Royal Cambodian Government
On the appointment of judges and other staff
To ensure that the judges will be individuals of integrity and ability with appropriate training or qualifications in law and that candidates be selected though an open and fair appointment process (and other criteria as per CHRAC petition of 7 April 2004)
To make public the current list of judges and prosecutors that might be appointed at the KRT and allow review by civil society
To select prosecutors and other court staff in the same fair, independent and transparent way as the appointment of judges, and with appropriate criteria for each position
To reform the Supreme Council of the Magistracy to ensure that the appointment process for judges, prosecutors and staff follow the above criteria
On witnesses and victims
To consider the victim’s role before the KRT
1. Which victims (of all the many) will be allowed to participate, and who will represent them?
2. Who will provide legal advice to the victims before the trial begins?, A group of lawyers should be identified as soon as possible in order to communicate this information to the victims
To ensure full participation of victims in the trials if they wish, in accordance with applicable procedure under Cambodian law.
To guarantee witness and victim security, crucial to the success of the KRT, at all stages including before, during and especially also after the trials. These recommendations apply to witnesses for both the prosecution and the defense. Specific recommendations include:
1. Create a separate witness and victim unit;
2. Consult NGOs in the planning for the unit and throughout the process;
3. Include provisions to protect witnesses, such as protection of identity when necessary; those provisions need to be written into the procedure or a practice note and clarified at early stages. They need to be:
i. Communicated to potential witnesses;
ii. Monitored and rules need to be enforced;
iii. Adequately funded, especially to pay for protection after the trial
On the legislation applicable, KRT orders and reparation
To speed up the process of adoption of the draft Criminal Procedure Code and to consider greater civil society input in the drafting process
To foresee specific provisions, with the participation of the KRT judges and civil society, in order to avoid delays based on unclear procedures
To ensure full compliance with the orders of the KRT judges regarding arrest, detention, extradition (in case the accused is abroad), witness protection, freezing of funds and assets accused, etc
To consult civil society about transparent and appropriate forms of reparation, in particular, collective or symbolic reparation, out of the property confiscated from those Khmer Rouges found guilty. Collective and symbolic reparation might include the building of memorials and museums on the genocide, the elaboration of school manuals on the genocide, etc.
Recommendations to the future judges of the KRT
To adopt rules of procedure, including rules of evidence, in order to clarify issues that currently lack clarity. The procedures need to be clear and comprehensive. NGOs should be consulted about these procedures.
To ensure that appropriate mechanisms be established for victims and witnesses participation, including through legal representation by NGOs or by counsel appointed by the court, possibly inspired from the ICC Statute ratified by Cambodia - the registrar should make sure that a group of lawyers within the KRT will provide legal advice to the victims to facilitate their participation and should set up a victims and witnesses unit in charge of their protection
Provisions to protect the identity of victims and witnesses should be adopted
The protection available should be communicated to potential witnesses
To comply with international standards on the right to a fair trial
Recommendations to the United Nations
To ensure that the judges will be individuals of integrity and ability with appropriate training or qualifications in law and that candidates be selected though an open and fair appointment process (and other criteria as per CHRAC petition of 7 April 2004)
To select prosecutors and other court staff in the same fair, independent and transparent way as the appointment of judges, and with appropriate criteria for each position
Secretary General: to solicit input from civil society on the list of international candidates to the KRT and to submit this list to the Royal Cambodian Government immediately after satisfaction of all conditions for establishment of the KRT
General Assembly: to follow up the implementation of its resolution 57/228 on the establishment of the KRT
UNDP: to continue with the urgent training on international standards on the right to a fair trial for all personnel of the KRT
Recommendations to the international community
Provide additional funds to make up the shortfall from the March 28 donors conference and to provide the necessary support in order to allow the KRT to work as quickly as possible
Send a strong, clear message to the Cambodian authorities regarding the need to ensure the respect of international standards regarding:
1. the right to a fair trial
2. the independence, integrity and impartiality of the judges, prosecutors and court staff as well as their security
to support legal assistance to victims participating in the proceedings before the KRT
to consider supporting local NGO projects which provide for assistance to witnesses and outreach to the community.
2. The ICC
Recording that the International Criminal Court (ICC) is the first permanent and universal international criminal jurisdiction with the mandate to investigate and prosecute authors of the most serious international crimes, such as genocide, crimes against humanity, war crimes, and crime of aggression (once the definition of the latter has been adopted)
Recording that the ICC is complementary to national jurisdiction and that it gains jurisdiction only if national courts are unwilling or unable to prosecute the alleged crimes.
Recording the important innovations of the Rome Statute, such as the absence of any immunities, the right of victims to participation and be granted reparation and the protection of witnesses and victims
Welcoming the ratification of the Rome Statute by Cambodia, who was the sixtieth State Party to the Rome Statute (along with several other states) and the first in the ASEAN region
Deploring the small number of ratifications by Asian States
Deploring the policy of the United States Government to enter into immunity bilateral agreements that prohibit such States to transfer to the Court the US citizens suspected of having committed crimes under the jurisdiction of the ICC
Stressing the importance of universal ratification of the Statute and of strong commitment by States parties to defend its integrity
Stressing that ratification is a first step which should be followed by full implementation of the ICC Statute in domestic legislation
Recommendations to the Royal Cambodian Government
To carry out legislative screening of the Cambodian Constitution as well as draft national substantive criminal and procedural criminal law in order to proceed with due implementation of the Rome Statute, in particular with regards to the definitions of crimes, the principles of criminal law and the implementation of the obligations contained in the statute pertaining to the cooperation between the Court and the Cambodian authorities
To share those drafts with NGOs and more generally establish mechanisms to consult civil society on draft legislation
To adopt without delay the new Penal Code which should fully incorporate international crimes under the Rome Statute as well as other international human rights instruments ratified by Cambodia
To reform without delay the Constitution if necessary
To adopt the law on the status of judges and prosecutors
To adopt the law on Anti-corruption in order to struggle against corruption in the judiciary
To include training programs on the ICC in law school curricula (notably Ecole Royale de la Magistrature and Lawyers Training School)
To ratify the Agreement on Privileges and Immunities
To ask the Constitutional Council to examine any conflict between the BIA between the US and the Royal Cambodian Government, and Cambodia’s obligations as a State Party to the Rome Statute
To strengthen its dialogue with ASEAN States to facilitate their ratification of the Rome Statute
Recommendations to the Parliament :
Not to ratify the bilateral impunity agreements signed in 2003 with the United States
Recommendations to ASEAN
To adopt a joint position on the ICC and promote the ICC among ASEN member states
Recommendations to the international community
Include full implementation of the ICC as a benchmark for Cambodia in the next Consultative Group Meeting of donors
To provide any technical advice that the Cambodian authorities might request in order to implement the ICC Statute in domestic legislation