By Hang Chuon Naron
Having read the article “Warnings of Violence if CPP Loses Election Fall on Deaf Ears” (July 25, page 16), I feel compelled to write to inform our Cambodian compatriots about the legal consequences of violent post-electoral protests or violent crackdowns on election protests under international law.
International jurisprudence was involved following the 2007 to 2008 post-electoral violence in Kenya after incumbent President Mwai Kibaki was declared the winner of the presidential election held on December 27, 2007.
Supporters of Kibaki’s opponent, Raila Odinga of the Orange Democratic Movement, alleged electoral manipulation. There were post-election protests and police shot demonstrators, causing more violence.
Kenya has been a State Party to the Rome Statute, which allows the International Criminal Court (ICC) to have jurisdiction over Kenyan criminals and crimes in the territory.
In November 2009, the Prosecutor of the ICC requested authorization for an investigation into the situation in Kenya pursuant to Article 15(3) of the Rome Statute, about the post-election violence in which about 1,300 people were killed.
Subsequently, the ICC issued summonses for six prominent Kenyans to appear on the basis that there existed reasonable grounds to believe that they were criminally responsible for crimes against humanity, pursuant to Article 7 of the Rome Statute.
The men were: Deputy Prime Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, former police chief Hussein Ali, former Education Minister William Ruto, radio journalist Joshua Arap Sang and opposition leader Henry Kosgey.
Kenyatta now is the newly elected president of Kenya. The case is pending before the ICC.
Cambodia has been party to the Rome Statute since 2002. Therefore, the ICC, based in The Hague, has jurisdiction over Cambodia.
If there will be any post-election violence, the case will be dealt with first by a domestic court, but failing to do so, the ICC will step in according to the principle of complementarity.
The principle of individual criminal responsibility will apply.
Incitement that will lead to violence, as well as violent crackdowns on protests, shall be prosecuted. Racial hatred in speech that leads to violence, including comments on Facebook, shall also fall within the purview of the law.
There are three mechanisms of referring the case to the ICC: by the State, by the U.N. Security Council and proprio motu by the prosecutor.
Given the flaring up of election tension, I would like to urge our Cambodians on both sides of politics to maintain utmost restraint, exercise their rights and fulfill their obligations peacefully so as to demonstrate to the world the maturity of Cambodia’s democratic process.
Hang Chuon Naron LLM is a lecturer of public international law at the Royal University of Law and Economics in Phnom Penh.