Eleven could eventually face Khmer Rouge Tribunal
Updated
William Smith is a lawyer from Adelaide who's working as a Deputy Co-Prosecutor with the Extraordinary Chambers in the Courts of Cambodia -- the official name of the UN-backed tribunal.
Mr Smith, who had experience in the war crimes proceedings for the former Yugoslavia.
Presenter: Karen Percy
Speakers: William Smith Deputy Co-Prosecutor with the Extraordinary Chambers in the Courts of Cambodia
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PERCY: Bill Smith, what is it that this tribunal is trying to achieve. There's talk of justice, there's talk of revenge, there's talk of closure. What do you think it's about?
SMITH: I think it's about both, certainly not about revenge, it's about justice and it's about closure and it's also about reconciliation. It's very important for Cambodians that they have a sense of accountability and the end to impunity in Cambodia and that's the momentous thing about it. It's the first time anyone has been bought to justice for the horrendous Khmer Rouge crimes.
PERCY: There's talk that this is justice served cold, that it's too little too late with only five defendants in the dock and coming almost 30 years after the Khmer Rouge was out of office. What do you say to those kinds of critics and there are a lot of them?
SMITH: First I would say is that justice can never be too late. Justice is justice and it's a short life and if someone has been culpable or participating in gross human rights violations, whether they are prosecuted one year later or 30 years later, the victims don't care. They just want to see some justice, some reconciliation. As far as too little, the prosecution at the moment, or the investigative judges have investigated five cases. We're looking at another six cases and those six cases before the pre-trial chamber, so the number could well be eleven in the next few months.
PERCY: Explain briefly the way this tribunal works, because it's fairly complicated with a mix of international law, French law and then finally some Cambodian law for the mix?
SMITH: It's actually, it's relatively simple in a sense. The complication may be because it is a hybrid court, and because it is a hybrid court, we have two chief prosecutors, two chief investigative judges and a trial chamber bench with three Cambodian judges and two international. For the whole process to work, there must be consensus between the prosecutors and the investigative judges in the trial chamber. So to create that consensus, is a real challenge. But that's actually the strength of the system, it forces people to work together and that really aids in the capacity-building affect that this court will have.
PERCY: From my observation, there seems to be a bit of a split between the Cambodians and the international occupants of some of these positions. Is that a fair judgement, given when you look at whether it's going to be additional charges against a particular defendant or whatever?
SMITH: I don't think so. Basically the court is divided up a number of offices, the prosecution, the investigative judges office, the trial chamber and administration and a few other offices as well. Staff get on exceptionally well. There is a great enjoyment and satisfaction on working on this enterprise together. As far as a split or a difference of view between how many should be prosecuted. The Cambodian prosecutor at the moment would prefer on the basis that it may be a bit early to increase the prosecutions because of stability in Cambodia that may increase instability, whereas the international prosecutors say it's important to effectively discharge the mandate, to prosecute as many of the most responsible and senior leaders as possible. That's been resolved with the pre-trial chamber. They will decide. As far as cooperation in the office, there's a professional agreement to agree to disagree, but as far as the work on all the other cases, the cooperation is high.
PERCY: Another of the criticisms of this process has been that it is way too limited in scope, that it is only looking at the very specific years the Khmer Rouge was in power, and the specific people who might have been involved when there were geopolitical influences at the time, whether it was the United States or China. There is also discussion about the role of former kings and current prime ministers of Cambodia. What do you think of this scope?
SMITH: I think the scope is reasonable, bearing in mind that the general public, the international community are only prepared to pay a certain amount of money for justice and only prepared to have it last for a certain length of time. As far as the crimes that were committed in the Khmer Rouge period. It is undoubtedly clear that they are the most horrendous, large scale crimes that occurred relative to anything that happened before. One-point-seven-million people were killed that should not have been killed during that period. There is nothing that happened before was of that scale and as far as the current leaders being involved in prosecutions now, senior leaders, they just were not at that level or involvement in the Khmer Rouge, so it's beyond our mandate and nor would they be under any suspicion of committing any crimes.
PERCY: Now this process in fact has been underway, for I guess a decade, when we look at it in some way, shape or form. we're also looking at well over 100 million US dollars spent. When you talk about Cambodians not wanting to spend too much time or to much money on it, isn't it a bit late for that?
SMITH: Mm, again, it's justice in never too late, for as long as the perpetrators are alive. It's important that they are brought to account, otherwise it won't create a deterrent in the future in Cambodia and in other countries. As far as the process, the process only really commenced two-and-a-half years ago, when the court was established. The negotiations to come to the court, to get that political agreement, that took a bit of time, because the Cambodian Government wanted to make sure that they participated in the process and the United Nations wanted to make sure that the process had a certain international standard. It's understandable that both parties had a concern about those and in the end, an agreement was reached, an arrangement was satisfactory, so not too little and not too late.
PERCY: You've been in Phnom Penh a number of years now working on this tribunal. What are your thoughts on how Cambodian people, ordinary Cambodians view this, because some critics again say that most Cambodians are too busy trying to eek out a living that they don't particularly care about the tribunal. What do you think?
SMITH: Well personally, my main feedback is from the staff that I work with and most of those staff that I work with are very enthusiastic about seeing accountability begin in Cambodia. As far as the general population is concerned, you just have to look around and Cambodians do do it very tough. There's poor health care, poor housing, bad water etc.
However the University of Berkley put out a survey which surveyed 1,000 people and 90 per cent of Cambodians from that survey want justice at the Khmer Rouge court.
PERCY: Do you think peoples' expectations are too high or are they too low with this tribunal?
SMITH: I think peoples' expectations are mixed. A lot of peoples' expectations are very high and I think they should be, because I think if the court continues in the way that it is, it will deliver on the first trial against Duch, it will deliver on the trial against the other four senior leaders and it may deliver on a third trial. And that's the type of justice that Cambodians have been looking for. And in terms of peoples' expectations being too low, they will gain confidence as time goes on, once they see the court in action and they see that this actually really can happen.
PERCY: And what do you think the likely outcome's here are? There is so much speculation and discussion about what might happen here, whether the defendants will even be able to make it the court, because some of them have some health issues. What are your thoughts on what the outcomes might be and given how long it has taken, and what's going to come out of it all?
SMITH: It's difficult to say. The defendants range from different ages, from the age of 63 to 83. All the defendants at the moment are in good health. However, it is quite plausible, of course, that a defendant could die or alternatively a defendant may be incapable to plea. If that is the case, unfortunately that's just life. As far as whether the process should continue, everyone that has their full senses that have been involved in these types of crimes, they should be pursued, because of the significance that it will have in creating a rule of law for the future.
