Saturday, January 11, 2014

A Probability of Hun Sen Facing ICC

Hun Sen's security forces killed and tortured civilians

By Khmer Wathanakam

 After tribunals for former Yugoslavia and Rwanda, which were established to try crimes committed only in specific time-frame and conflict, there was a general agreement that an independent, permanent criminal court was needed.  An International Criminal Court (ICC) also known as a "Rome Statute" was created in 1998 and opened its door to business on July 1, 2002, marking an historic milestone toward ending impunity around the world.

ICC which has 121 state party members is not part of UN system like International Court of Justice (ICJ) which was created in 1945 to settle legal dispute between states and to provide legal advisory referred by UN and special agencies.  Unlike, the ICJ, the ICC deals with individual person's crime referred by any state party or UN Security Council. In addition, prosecutor can initiate investigation on the basis of information on crime received for individual or organization.  Currently, the ICC has issued 22 arrest warrants in 16 cases with seven ongoing investigations.  As a state party member, Cambodia can refer or bring criminal case to try in the ICC based on substantial evidences, a nature, and scope of crime.
In the past few years two organizations, People Power Movement (PPM) led by Sourn Serey Ratha and  Khmer Liberation Front (KLF) led by Sam Serey filed two separate criminal cases against Hun Sen at ICC though the cases were pending for more evidences, it is the first time that Cambodian people have tried to search for justice beyond their national jurisdiction since Cambodian court system is unreliable.  Now CNRP is preparing another stronger and bigger criminal case against Hun Sen based on his fresh brutal crackdown on protesters since a start of election dispute from August last year, which caused at least six people dead and over 100 severe injured along with his past crimes.  At this time it looks more promising since more evidences have been collected by numerous human right groups and more cruel violence have been committed by Hun Sen's security forces against unarmed civilians.  If we count all crimes from 1993 UN organized election until today, we have large enough scope of crimes and evidences to bring Hun Sen to the ICC.

Now time is right and long enough for CNRP to build up a strong criminal case against Hun Sen at the ICC despite a scale of killing and torture on civilians is smaller compared with Bosnia, Rwanda, and Darfur: the crimes Hun Sen has committed is repeatedly in a systematic pattern and in a cruel and undiscriminated nature against children, women, elderly people, Buddhist monks, and all his opponents.  His recent crackdowns on protesters have not maintained rule and social order but intended to kill and to inflict severe pain and injure mentally and physically on his opponents in order to break their will and to frighten them not to oppose him again.

If the ICC receive enough evidences of crimes, prosecutor may initiate investigation into the case, presenting all relevant evidences to judge panel for an indictment, and the ICC also needs cooperation from a state party in which a defendant has resided.  If the defendant is still on power, there is more unlikely the government of the state party complies with the ICC's indictment.  Many Serb and Croat leaders were handled to Huge only after they left their power position--military commanders, government officials, and heads of state.  ICC indicted Sudanese President Omar Al Barshir--the first sitting head of state ever indicted by the ICC-- for genocide in Darfur in 2009, but Al Bashir refused to surrender to the ICC's indictment, and he has continued to rule Sudan as usual. However, his foreign trips have been reduced to only few friendly countries because he faces arrest warrant any where around the world.
In similar situation, if  the ICC announces an indictment for Hun Sen, an odds in favor to place him in front of a judge panel in Huge is more unlikely to happen since the ICC needs Cambodian government cooperation, but no one dares to handle him to Huge if he is still in power, and he will definitely fallow Al Barshir's defiance.  But Hun Sen may find himself in more seclusive places than before;  he may not dare to travel to Europe, UN, and most countries as usual except his few friendly countries such as Vietnam, Laos, China, and some other ASEAN members.  And more important than this, all his assets abroad may be frozen if ICC requests it.  According to "article 75" of Rome Statute, the ICC can order a convict to compensate victims for their lost life, mental and physical damages, lost assets, and so on.  All convict's seizing assets will be placed in a special trust fund to compensate for victims.

Whatever the case against Hun Sen will be, we don't know yet since there are more complicated procedures and time consumption for the case.  This is just an explanation of a general scope of the ICC's modus operandi; let law experts dig in for more details.  the ICC is the only last venue that Cambodian victims under the current repressive regime can rely on since the court system in the country is too political and unable to find justice for them at all levels. Albeit a probability of Hun Sen to face the ICC is unlikely to happen soon, All victims of crimes committed by Hun Sen and his associates should continue to document and to cooperate with human right groups and other involved parties to build a stronger case and bring it to the ICC persistently until true justice is found. 

Note: this article is only advisory opinion.

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