Cambodia May Find No Means to Put Pol Pot on Trial

June 21, 1997

By BARBARA CROSSETTE

UNITED NATIONS -- If Pol Pot is indeed captured alive and his captors

decide that an international tribunal should try him, they will soon

discover a gap in the world's justice system.

There is no international body to deal with genocide or crimes against

humanity, charges that many Cambodians and foreign legal experts would like

to bring against the Khmer Rouge leader who presided over a radical leftist

regime that killed more than a million people in executions or through

starvation, disease and forced labor.

More than 80 years after an International Criminal Court was first

proposed, the members of the United Nations are finally preparing to create

a permanent panel to deal with crimes against humanity, but the

establishment of the court is still a few years away.

Crimes against humanity are not normally considered to be within the

jurisdiction of the International Court of Justice -- the World Court -- at

the Hague, which rules on disputes between nations.

Special war crimes tribunals have been created from time to time - in

Nuremberg and Tokyo after World War II, in The Hague in 1993 during the

civil war in the former Yugoslavia, and in Arusha, Tanzania, following the

slaughter of about half a million Tutsi and moderate Hutu in Rwanda in 1994.

But political and financial problems have slowed the operations of the

Yugoslavia and Rwanda tribunals, and members of the Security Council seem

less than enthusiastic about creating any more ad hoc war crimes courts.

"The case of Pol Pot is a dramatic instance of how a permanent court would

be useful," said Ruth Wedgwood, an expert on international law at the Yale

Law School. "I think the Security Council has used up its good will and

could not create a third ad hoc court without inspiring some significant

resistance from many U.N. members. There is continuing rumbling that the

Security Council should not, willy nilly, create institutions."

Several Security Council members also said that there was virtually no

chance that the Council would be able to establish a Cambodia tribunal, in

part because more than 20 years have elapsed since the crimes were

committed and in part because of strong opposition from China to any such

court.

In the case of Cambodia, China would be especially reluctant because it was

once the most powerful backer of the Khmer Rouge, said Kenneth Roth,

executive director of Human Rights Watch. Roth nevertheless believes that a

special tribunal would be the best way to deal with the Cambodian killings,

even two decades later.

"It is not too late," he said. "It is essential for Cambodians to put to

rest the horrors of the Khmer Rouge era for there to be a final, formal

accounting of Pol Pot's atrocities."

"The problem is where to try him," he said. "This leaves us with a dilemma.

A permanent international tribunal is not yet created, an ad hoc tribunal

would be politically difficult to create and a national tribunal would be

unlikely to deliver a fair trial." He said that with the two major parties

in Cambodia vying for Khmer Rouge support, a national trial could turn into

a sham.

There is no lack of evidence for trials of Khmer Rouge defendants. In 1994,

Congress passed a law establishing the Cambodian Genocide Program, based at

Yale University, to begin a systematic cataloguing of cases. That material

is now computerized and on the Internet, available to Cambodian prosecutors

as well as international scholars.

The question of what charges could be brought against Pol Pot or other

Khmer Rouge leaders has also been examined in detail, in a paper prepared

for the State Department by two American legal experts, Steven R. Ratner of

the University of Texas School of Law and Jason S. Abrams, a consultant on

international law.

Ratner and Abrams concluded that a broad charge of crimes against humanity,

which can cover genocide, was appropriate since the Khmer Rouge killed

people for political reasons. The 1948 Genocide Convention covers ethnic

groups and people singled out for religious beliefs. The Soviet Union

insisted that political or economic groups be excluded from coverage.

The same law that created the Yale project and the legal study also

directed the president of the United States to pursue a trial for the

leaders of the Khmer Rouge.