When Prince Sisowath Thomico declared his intention this week to lodge a personal complaint against a government official to discover the fate of his parents during the Khmer Rouge regime, he highlighted a long-standing question over the breadth of the tribunal’s reach.
Following the prince’s example, countless relatives of Khmer Rouge victims could follow suit and launch their own individual complaints, disrupting the UN and government’s carefully-scripted plans to try only a handful of top ex-leaders of the Democratic Kampuchea regime.
The prospect of opening the courts to a flood of litigation—which could include senior officials—is one the government is trying to avoid, some say, even if it means stalling the long-awaited tribunal indefinitely.
“If more people come forward with such complaints, at least some of our rulers [would] feel uneasy,” said Lao Mong Hay of the Center for Social Development. “They’ve been apprehensive about this all along.”
The officials most worried are those who had “association with the Khmer Rouge,” he said, adding he is skeptical that a tribunal will actually take place.
“Seeing is believing,” Lao Mong Hay said.
Nearly eight years since the start of UN and government negotiations, a tribunal has not yet been established, prompting doubts over the government’s and the international community’s commitment to hold the trials.
In his statement Monday, Prince Thomico noted that only $26 million of the required $57 million for the tribunal have been secured and questioned why neither the government nor the UN have mentioned a start date for the trials.
“[A]re the UN and the RGC serious about this tribunal? Because if they are serious about the Tribunal, I, among other victims, will be serious about trying to find out what happened to my revered parents, Samdech Sisowath Methavi and HRH Princess Nanette Methavi (who is the elder sister of Queen-Mother Norodom Monineath),” he wrote.
Contacted Thursday, government spokesman Khieu Kanharith said only the courts will be able to decide on Prince Thomico’s proposed complaint.
“Only the judge has the power to say who is put on trial,” Khieu Kanharith said, but acknowledged that much finger-pointing could be expected from other victims’ families.
During the 1975 to 1979 Democratic Kampuchea regime, “half the population worked for the Khmer Rouge…. In the Royal Palace, too,” Khieu Kanharith said.
“I agree some people with more responsibility must stand trial.”
However, the UN and the government have agreed that only the “masterminds” of Khmer Rouge atrocities will be tried, Khieu Kanharith said. “Prince Thomico and the others will have to look carefully on the law.”
According to the government Khmer Rouge task force’s publication “An Introduction to The Khmer Rouge Trials,” the court will “limit prosecutions to the senior leaders of Democratic Kampuchea…who planned or gave orders, as well as those most responsible for committing serious crimes.”
It added: “Low level and middle-ranking Khmer Rouge members who are not most responsible for serious crimes will not be punished.”
But, determining who is classified as a “senior member” and what is classified as a “serious crime” will be left for the courts, it said.
According to Khmer Rouge researcher Craig Etcheson, several individuals filed personal complaints at the 1979 People’s Revolutionary Tribunal. Similarly, he said, one should expect citizens to file complaints at the future trials, known as the Extraordinary Chambers.
“Even so, the contours of personal jurisdiction defined in the tribunal and the UN tribunal agreement— ‘senior leaders’ and those ‘most responsible for the crimes’—are likely to limit the scope of prosecutions at the Extraordinary Chambers to a small and well-known group of top communist party leaders,” Etcheson wrote.
He added: “The UN and the Royal Government have taken care to ensure that tight controls are in place to avoid the prospect of a run-away ‘witch-hunt’ during the Khmer Rouge Tribunal.”
One foreign legal expert, however, said it will be particularly difficult to define the category of who should be considered “most responsible” for crimes.
“There could be quite a lot of debate there,” the legal expert said on condition of anonymity Thursday.
Since the Khmer Rouge tribunal is intended only to handle criminal cases and not civil lawsuits, Prince Thomico would have to bring his case to the prosecutors, who would then decide whether to proceed, he said.
Alternately, the prince could make a complaint outside the framework of the tribunal and launch a civil suit at the Phnom Penh Municipal Court, seeking damages for personal injury, the legal expert said, though the likelihood of winning might be slim.
“There’s no statute of limitations on that, so you could just try,” he said.
Regarding individual complaints, he added, it all depends on whether people want to pursue them.
“It could be this sleeping thing that just wakes up, and there could be pandemonium…or it could just be a sleepy tribunal,” the legal expert said.
“In theory, there could really be a large range in the number of cases [the Khmer Rouge tribunal will take].”
