CENTER OF CAMBODIA
for the truth Khmer version 2001
of Documentation Center of Cambodia
the Khmer Rouge tribunal was agreed:
between the Cambodian government and the UN
I: March 1997- March 1999
Ambassador Thomas Hammarberg
my first mission to Cambodia (June 1996) it immediately became clear to me that
the Khmer Rouge crimes in the 1970's still cast a paralysing shadow over
Cambodian society. The killings of educated professionals had left gaps that
still crippled the judiciary, the government administration, including the
health and education structures. The moral impact was even more profound. The
fact that no one had been held accountable for the mass killings and other
atrocities had clearly contributed to the culture of impunity which was still
pervasive in Cambodia.
I went in Phnom Penh or in the provinces I made a point of discussing the Khmer
Rouge legacy and what ought to be done. One message became clear: the crimes
were not forgotten. Almost everyone I met was personally affected, had suffered
badly and/or had close relatives who died. Even now, more than two decades
later, the overwhelming majority wanted those responsible to be tried and
punished. The only argument against arrests and trials was the risk of further
unrest and civil war. However, I heard many voices saying that not even that
should be accepted as a reason to avoid seeking justice.
almost without exception, had emotional and painful memories of the Democratic
Kampuchea period in the seventies. King Sihanouk had tried to reason with the
Khmer Rouge, been humiliated and even had family members killed. Hun Sen and
several of his CPP colleagues had joined the Khmer Rouge movement, and had later
defected to the Vietnamese side. Several of them had also lost family members.
It is important to recognise this dimension of the Cambodian drama in order to
understand the apparent inconsistencies in the discussion outlined below.
issue of justice became even more acute in 1996 as the Khmer Rouge movement
drifted into crisis. Though some military activity still continued along the
border in the north and north-west and bandit raids plagued villages and fishing
communities (not least those with ethnic Vietnamese inhabitants), there were
clear signs of breakdown. Both FUNCINPEC and CPP initiated tentative contacts
with segments of the Khmer Rouge movements. They both offered generous
conditions: continued control over some territory, autonomy, resources, good
positions also within the military ranks and de facto amnesties. This had an impact.
In August 1996, the former Khmer Rouge Deputy Prime Minister for Foreign Affairs
Ieng Sary defected with a couple of thousand soldiers and split the Khmer Rouge
led to a contradictory situation. First, it became obvious that it would no
longer be possible to avoid a real discussion about justice and about
international standards. The process organised in 1979 by the
Vietnamese-dominated administration had been flawed and there was a consensus
that this exercise had not provided the ultimate legal response to the crimes
second phenomenon was the competition between the two major parties in Phnom
Penh to attract defectors into their ranks. In military terms the CPP had had
the upper hand since the large UN peacekeeping mission, known as UNTAC, had left
in late 1993, but there was a possibility that a flow of defecting Khmer Rouge
troops into FUNCINPEC might change that. Hence, the disintegration of the Khmer
Rouge heightened the tensions within the coalition government. Clearly, both
Prime Ministers, the FUNCINPEC-leader Prince Norodom Ranariddh and the
CPP-leader Hun Sen, hesitated to push for a Khmer Rogue trial in this situation.
the amnesty given to Ieng Sary in September 1996, in the name of gnational
reconciliationh, was controversial. The two Prime Ministers had requested the
King to grant an amnesty - which he did. However, Prince Ranariddh told me
afterwards that he really did not want to support the amnesty request but, as
Hun Sen had insisted, he had agreed in the end.
within the CPP there was considerable unhappiness about the amnesty. Hun Sen,
for his part, later explained to me that the purpose of the amnesty was to
encourage more defections. Also, the amnesty decree for Ieng Sary had been
deliberately formulated so that it protected him only against the punishment
meted out at the 1979 tribunal (death sentence) and the possible prosecution for
having violated a 1994 law banning Khmer Rouge activities. Though this did lead
to more defections, there would remain an unclarity about nature of the amnesty
given to Ieng Sary and whether he was protected or not against being
indicted in a genuine trial for his actions in the 1970's.
was the UN position on a trial? In order to start the process of clarifying
this, I suggested informally during the UN Commission on Human Rights session in
April 1997 that a paragraph be included in the Cambodia resolution. The
paragraph should mention the possibility of international assistance to enable
Cambodia to address past serious violations of human rights. The Commission
included the following in its Cambodia resolution 1997/49 on 11 April 1997:
"Requests the Secretary-General, through his
Special Representative for Human Rights in Cambodia, in collaboration with the
Centre for Human Rights, to examine any request by Cambodia for assistance in
responding to past serious violations of Cambodian and international laws as a
means of bringing about national reconciliation, strengthening democracy and
addressing the issue of individual accountability".
June 1997 letter
June 1997 I discussed the implications of the resolution with the two co-Prime
Ministers and pointed out that the UN might respond positively to a request for
assistance so that the Khmer Rouge crimes would at long last be addressed. I
first approached Prince Norodom Ranariddh as he had appeared to be hesitant
about the effects of the tribunal discussion on his possibilities to attract
defectors. This was also a period when the relationship between the two leaders
was at a low ebb - the government was next to paralysed.
Prince agreed to sign such a request but asked me to draft the letter for him. I
said I was willing to give him such technical help but the letter should be
considered as his and Hun Senfs. The same afternoon he had the proposal and
signed it. I reported these developments to Hun Sen during our subsequent
meeting. He said that he of course would sign, that to defeat the Khmer Rouge
had for him been a lifelong battle.
21 June 1997 a letter went off to the Secretary-General asking gfor the assistance of the United Nations
and the international community in bringing to justice those persons responsible
for the genocide and crimes against humanity during the rule of the Khmer Rouge
from 1975 to 1979h.
letter further stated:
does not have the resources or expertise to conduct this very important
procedure. Thus, we believe it is necessary to ask for the assistance of the
United Nations. We are aware of similar efforts to respond to the genocide and
crimes against humanity in Rwanda and the former Yugoslavia, and ask that
similar assistance be given to Cambodia.h
believe that crimes of this magnitude are of concern to all persons in the
world, as they greatly diminish respect for the most basic human rights, the
right to life. We hope that the United Nations and the international community
can assist the Cambodian people in establishing the truth about this period and
bringing those responsible to justice. Only in this way can this tragedy be
brought to a full and final conclusion.h
letter since then figured in every discussion between the UN and the Cambodian
government on the Khmer Rouge issue. When received in New York it was circulated
to the members of the Security Council, but it became instantly obvious that it
was controversial. The Chinese delegation made clear that it did not want to put
the topic on the Security Council agenda. I met with the Office of Legal Affairs
in the UN Secretariat and suggested that a Secretariat approach be
essence, the initial response from both the leading Member States and from the
Secretariat was unenthusiastic and somewhat confused. One political factor might
have contributed. In early July the tensions between the two coalitions parties
in Phnom Penh and armed troops on both sides had exploded in a military
confrontation. Forces loyal to CPP had started disarming the other side. The
Second Prime Minister emerged victorious after having staged a decisive coup.
Prince Ranariddh, who had just slipped out of the country, was declared as
ousted by Hun Sen. FUNCINPEC party headquarters were raided and its files
confiscated. The opposition Khmer Nation Party headed by the former Finance
Minister Sam Rainsy suffered the same treatment. The National Assembly was
temporarily closed and non-CPP radio and television stations were closed or
taken over. Throughout July and August the UN received and investigated numerous
reports of FUNCINPEC military officers having been systematically killed.
of the declared excuses for this clampdown was that Prince Ranariddh had had
secret contacts with Khmer Rouge leaders and that he had brought a great number
of Khmer Rouge soldiers to Phnom
Penh (in fact there were some defectors among the troops on both sides in Phnom
Penh; and it was never convincingly shown that FUNCINPEC had brought in
the same time, the disintegration of the Khmer Rouge movement had speeded up. In
June Son Sen, the former Deputy Prime Minister for Defence, had been killed
together with his family, on orders from Pol Pot. It became obvious that the
remaining leadership was falling apart in a bitter internal struggle. Brother
Number One himself was tried by a gpeople's courth close to the Thai border in
late July and sentenced to lifelong detention. More defections were now to be
expected, and there were fears that this would increase the tensions between the
major parties even more.
would these dramatic developments affect the sensitive dialogue with the United
Nations on co-operation for bringing the Khmer Rouge leaders to justice? Was the
21 June request still backed by the key parties?
1997 General Assembly
My next meeting
with Hun Sen was held in early September. It naturally focused on the memorandum
I had just submitted to the government on the post-coup killings. In spite of
the inevitable confrontation on that subject, Hun Sen clarified that the 21 June
letter was still valid, as did other CPP leaders I met, including the party
chair and President of the National Assembly, Chea Sim and the Deputy Prime
Minister and co-Minister of Interior, Sar Kheng.
King Sihanouk gave
full support to the efforts on the Khmer Rouge issue outlined in my General
Assembly report, telling me that if this initiative was not pursued, there would
never be an end to impunity in Cambodia. He added that he himself was willing to
be called to a tribunal to explain his own relationship to the Khmer Rouge
regime. "This is my duty", he said.
Later in September
I met Prince Ranariddh, and the other leaders of the post-coup opposition in a
hotel room in New York. They were there to present their case to the
international community and to lobby for a General Assembly decision that
Norodom Ranariddh be recognised as the legitimate representative of the
Cambodian government - or that Cambodia should be deprived of its seat in the
Assembly (the latter became the decision). The leader of Khmer Nation Party, Sam
Rainsy, and the leader of BLDP-Son Sann, Son Soubert, were present. Referring to
my recent meeting with the King, I asked for their assurance that the recent
political developments had not changed their position of support for the 21 June
letter. After a moment of silence, the Prince solicited the views from the
politicians in the room. One by one they nodded in support and the Prince then
summarised their unanimous assent.
As a strange
historic coincidence, the issue that could have become deeply divisive, turned
out to be the only one on which all political forces now agreed. On that basis I
urged the General Assembly to respond positively and generously to the Cambodian
request for assistance.
How should the
process start? It was clear that it was premature at this stage to recommend one
particular model, for instance an ad
hoc tribunal similar to the one on former Yugoslavia in the Hague. There was
a need for an intermediate step to allow for some informed discussion about the
nature and scope of the crimes, the status of evidence, what law to apply and
the most suitable process. It was already now obvious that it was important to
discuss in some depth the interrelationship between domestic and international
In the case of
former Yugoslavia a Commission of Experts had been appointed to assemble and
assess evidence before the tribunal had been set up. A similar commission had
been established in the case of Rwanda whose task included giving
recommendations on ways to achieve accountability. In the Khmer Rouge case the
task would need to be somewhat different with more emphasis on giving advice
on the best process. The term "Commission" would need to be avoided in order not
to give the impression that the model of former Yugoslavia was used. As a first
step, I therefore recommended to the General Assembly not the Security Council
- that the Secretary-General be authorised to appoint experts to evaluate the
existing evidence of responsibility for the Khmer Rouge human rights violations
and propose further measures.
This is how the
point was covered in the General Assembly resolution on 12 December 1997 on
"Desiring that the tragic history of
Cambodia requires special measures to assure the protection of the human rights
of all people in Cambodia and the non-return to the policies and practices of
the past, as stipulated in the Agreement signed in Paris in 1991;
comments of the Special Representative that the most serious human rights
violations in Cambodia in recent history have been committed by the Khmer Rouge
and that their crimes, including the taking and killing of hostages, have
continued to the present; and notes with concern that no Khmer Rouge leader has
been brought to account for these crimes;
Secretary-General to examine the request by the Cambodian authorities for
assistance in responding to past serious violations of Cambodian and
international law, including the possibility of the appointment, by the
Secretary-General, of a group of experts to evaluate the existing evidence and
propose further measures, as a means of bringing about national reconciliation,
strengthening democracy and addressing the issue of individual
In January 1998
the High Commissioner for Human Rights, Mary Robinson, visited Cambodia. She
discussed the General Assembly resolution with Government representatives and
noted that the international community had responded positively to its request
for assistance in addressing the gross violations committed during the Khmer
Rouge regime 1975-79. The Government welcomed the proposal to appoint a team of
experts to evaluate the existing evidence and propose further measures.
in the General Assembly resolution were also included in the resolution on
Cambodia adopted by the 1998 Commission on Human Rights on17
death of Pol Pot on 15 April 1998 was a reminder that time was running out;
other Khmer Rouge leaders were ageing and might have health problems.
the reports on the gtrialh of Pol Pot near Anlong Veng in July 1997, the US
government worked on a scheme to capture Pol Pot at the Thai-Cambodian border
and to bring him to another country for trial. The Thai government was said to
have agreed to co-operate with this plan (though Thai representatives gave me a
somewhat different version). I was also informed that Canada, Denmark, Sweden
and Israel, among others, had been approached by US representatives about
hosting such a trial. The UN was not formally informed about these diplomatic
activities and I was personally critical of the way the plan was pursued. In the
end no country was prepared to host this type of trial.
April, two weeks after Pol Potfs death, the US delegation at the United Nations
circulated a draft Security Council resolution which, if adopted, would have
established an ad hoc tribunal in the
Netherlands, modelled on the tribunal on former Yugoslavia. China was clearly
negative and it was reported that also Russia and France had problems with the
my mission to Cambodia in April-May 1998, I again discussed the tribunal issue
in detail with Hun Sen, who affirmed that he was still behind the request in the
21 June 1997 letter. He stated that it was important that the Khmer Rouge
leaders at long last were brought to justice, but felt that recent US activities
had complicated the situation.
a more concrete level, he talked about a plan of his to arrest gthe threeh (I
understood him to refer to Noun Chea, Khieu Samphan and Ta Mok), which had been
disturbed by the recent publicity. Regarding Ieng Sary he repeated that the
amnesty decree was formulated in a way that did not protect him from new
procedures relating to genocide. In fact, he said, he had convinced Ieng Sary to
be available if an international tribunal was set up.
he raised two problems. First, there was a risk that public discussion at this
particular time about bringing Khmer Rouge leaders to a tribunal would
discourage further defections. He made clear that he was still working on the
remaining Khmer Rouge units in order to convince them to give up fighting. The
other problem was the risk that a public debate on this matter would disturb the
campaign for the 1998 elections (to be held in late July). I explained that a
systematic analysis of evidence and options for proceedings would take some time
and that a proposal could not be ready before later in the autumn, if then.
said he would welcome the arrival of a group of experts and was willing to
appoint some Cambodians to dialogue with the experts. He underlined that the
group should not be bound in advance by a particular solution, for instance,
that the tribunal would be an extension of the existing Hague tribunal. Neither
would he want it to be decided at this time that the proceedings must take place
in Cambodia. This aspect should remain open for the moment and be analysed by
the experts before decisions are taken.
the end he repeated his support for the approach developed through the General
Assembly resolution and afterwards. He said - with an obvious reference to a
suggestion at the time from the US - that he did not think it was necessary that
he wrote a second letter with the same request. Such a move would also have
raised the complicated issue of who should sign the letter together with him;
the legitimacy of the new First Prime Minister, Ung Huot, was not recognised by
many. "I ask you to convey my position to the Secretary-General", he said.
also repeated that he hoped there would not be much publicity at this stage
about the issue.
Ranariddh, whom I met in Bangkok, stated that the June 1997 letter was still
valid and that he stood firmly behind it. He said he wanted to give his full
support to our efforts and to the idea of bringing a group of experts to
Cambodia in order to assess the evidence and propose further measures. He agreed
that the experts should look into all possible options, but, personally, he felt
that the best option probably was an international tribunal in the Hague.
this mission I met the King again. He said that he gave full support to the idea
of a tribunal and international co-operation on the issue. "This has to be
done", he said. I explained the step-by-step approach and the point of analysing
carefully the nature of existing evidence and the various possible modalities
for the proceedings themselves. He affirmed that he was in full agreement.
raised this issue also with co-Minister of Interior Sar Kheng and opposition
politicians Sam Rainsy and San Soubert. They all gave an unequivocal answer of
support and said that some proceeding indeed was important. Sar Kheng said he
had been against giving amnesty to Ieng Sary and hoped that the latter could be
brought to justice.
thing was emphasised in several conversations: that the Cambodians wanted to be
a full party to this discussion. "After all, this is our problem", it was
often said. The possibility of organising a tribunal inside Cambodia with
international staff (including judges and prosecutors) - but in co-operation
with Cambodia was clearly an option to analyse. Otherwise, the Cambodian
representatives were generally open-minded about the approach to take. The idea
of a Group of Experts as a first step seemed to be generally appreciated.
Sen had spoken at some length about a "package" into which other crimes ought to
be included, such as the American bombings in the early 1970's and the Chinese
support for the Khmer Rouge. This was a theme to which he was to return several
times during our forthcoming discussions and sometimes also publicly. Though I
would not deny that there was a historical context, I had to stress that the
Khmer Rouge atrocities were unique in character. Indeed, the letter Hun Sen had
signed in June 1997 was precise both on the time period and the particular
crimes to be addressed. To widen the scope would be a recipe for no result on
the whole issue.
the end of this particular discussion in May 1998 he seemed to conclude that it
would be advisable to limit the period to cover only April 1975 to January
Group of Experts
fact that Hun Sen had publicly embraced a defected Khmer Rouge leader caused
some sarcastic comments among opposition politicians during the election
campaign in June-July 1998. At the same time, CPP alleged that Prince Ranariddh
had some relationship with remaining Khmer Rouge forces under Ta Mok and Khieu
Samphan. This point was amplified in the more rough party propaganda: both
Ranariddh and Sam Rainsy were accused of collaboration with the Khmer
in Phnom Penh were very interested in the Khmer Rouge issue. During each mission
I met them individually or as a group to give information on my meetings. On
some occasions I also stopped over in Bangkok to brief those ambassadors who
covered Cambodia from there. From the very beginning I benefited from the
exchanges with Japan and the ASEAN countries. In May 1998 I formally introduced
the subject to the then chair of the ASEAN troika, Foreign Minister Siazon of
the Philippines. Deputy Foreign Minister Sukhumbhand of Thailand also showed
July 1998 the Secretary- General appointed the Group of Experts mentioned in the
1997 Assembly resolution. Sir Ninian Stephen (Australia), Mr. Rajsoomer Lallah
(Mauritius) and Professor Steven Ratner (US) were requested (a) to evaluate the
existing evidence with a view to determining the nature of the crimes committed
by the Khmer Rouge leaders in the years 1975-79; (b) to assess, after
consultation with the Governments concerned, the feasibility of bringing Khmer
Rouge leaders to justice, their apprehension, detention, and extradition or
surrender to the criminal jurisdiction established; and (c) to explore options
for bringing to justice Khmer Rouge leaders before an international or national
Group met in New York in August for a briefing by myself and the Secretariat and
for discussions with some of the UN delegations. Due to the political turmoil in
Cambodia after the July elections it was decided to postpone the mission to
Phnom Penh until 14-24 November. It then met government officials,
representatives of the judiciary, non-governmental groups, diplomats and other
experts. They visited the Cambodian Documentation Center, the National Archives
and the Tuol Sleng museum (the previous school in Phnom Penh where the Khmer
Rouge opened an interrogation centre and to which at least 16.000 people were
brought for questioning and thereafter execution). Though the three experts were
accompanied by a representative of the Office for Legal Affairs, it worked
independently of the Secretariat and myself. My only advice to them was to
explore with care the possibility of a strong "Cambodian component" in the
process, including the option of holding the trial in Cambodia itself. The Group
met again, in privacy, in January and submitted its report to the
Secretary-General on 22 February 1999.
Group concluded that the evidence gathered to date showed that serious crimes
had been committed under both international and Cambodian law and that
sufficient evidence existed to justify legal proceedings against Khmer Rouge
leaders for these crimes. The crimes included crimes against humanity, genocide,
war crimes, forced labour, torture, crimes against internationally protected
persons, as well as crimes under Cambodian law.
Experts reported that the feasibility of apprehending Khmer Rouge leaders
depended on the ability and the willingness of the Government, in whose
territory suspects are located, to arrest or extradite them. They concluded that
the Cambodian Government was able to apprehend Khmer Rouge leaders in its
territory whose location was known and who were not protected physically from
arrest. In their meeting in November 1998 with Prime Minister Hun Sen, he
expressed the Government's willingness and readiness to apprehend any person
indicted by the independent prosecutor of the tribunal. The Thai government had
expressed similar willingness.
Experts analysed the following legal options for bringing to justice Khmer Rouge
tribunal established under Cambodian law in a domestic court;
a tribunal established by the Security Council or the General Assembly as an ad hoc international tribunal;
a hybrid option of a Cambodian tribunal under UN Administration;
an international tribunal established by a multilateral treaty; and
trials in third States.
considered these options, the Experts recommended that the United Nations, in
response to the request of the Cambodian Government, should establish an ad hoc international tribunal to try
Khmer Rouge officials for crimes against humanity and genocide committed from 17
April 1975 to 7 January 1979. They recommended that the Security Council should
establish the tribunal or, should it not do so, that the General Assembly should
do so. They also proposed that the Prosecutor of the International Tribunal for
the Former Yugoslavia and of the International Criminal Tribunal for Rwanda
serve as the Prosecutor of the new tribunal, with a Deputy Prosecutor
specifically charged with direct responsibility for this tribunal.
Experts, furthermore, recommended that the tribunal, including the office of the
Deputy Prosecutor, be established in a State in the Asia-Pacific region, but not
in Cambodia; that the Prosecutor establish an investigations office in Cambodia;
and that the United Nations, in co-operation with the Cambodian Government,
arrange for the unfettered dissemination of the proceedings in Cambodia by radio
also recommended that, as a matter of prosecutorial policy, the prosecutor limit
his or her investigations to those persons most responsible for the most serious
violations of international human rights law. This would include senior leaders
with responsibility for the violations as well as those at lower levels who were
directly implicated in the most serious atrocities.
Experts emphasised that the list of top governmental and party officials in
Democratic Kampuchea might not correspond with the list of persons most
responsible for serious violations of human rights. Certain top governmental
leaders might have been removed from knowledge and decision-making while others
not in the chart of senior leaders might have played a significant role.
seems especially true, the Experts wrote, with respect to certain leaders at the
zone level, as well as officials of torture and interrogation centres such as
Tuol Sleng. The Experts recommended that the prosecutor exercise his or her
discretion regarding investigations, indictments and trials so as to fully take
into account the twin goals of individual accountability and national
reconciliation in Cambodia.
of their recommendations was that the UN, in co-operation with the Cambodian
Government and the non-governmental sector, encourage a process of reflection
among Cambodians to determine the desirability and, if appropriate, the
modalities of a truth-telling mechanism to provide a fuller picture of the
atrocities of the period of Democratic Kampuchea.
the Experts were working on their recommendations, further defections had been
announced. In late December 1998 Hun Sen received two key leaders from the Khmer
Rouge, Nuon Chea and Khieu Samphan, in his residence outside Phnom Penh. Ieng
Sary was present and seemed to have acted as an intermediary. In a symbolic
sense this was a major event in Cambodian modern history. Though there was no
doubt that the two old men had capitulated and came to pay their respect, Hun
Sen appeared to turn the occasion into one of reconciliation and forgiveness.
His statements were controversial and even took some of his ministers by bitter
surprise. One metaphor he used was that "the time had come to dig a hole and
bury the past" which appeared to be at odds with his support for a tribunal and
the principle of justice.
there been a change of heart? Or had a price been paid for these crucial
Sen now stressed the importance of putting an end to civil war, that there might
be a conflict between a trial and peace. When I met him in late January 1999 he
handed me a memorandum for the Secretary-General, which raised the problem of
maintaining peace while seeking justice. The memorandum also referred to the
desirability of addressing crimes committed before 1975 and after 1979. The
purpose of this memorandum was not clear to me. When I sought clarification he
said that these points were only additional aspects for consideration by the
Experts but should not be seen as a changed position; the 21 June 1997 letter
was still valid.
test would be the reaction to the report of the Group of Experts which was
conveyed to the Cambodian UN mission in New York on 23 February. Unfortunately,
the report had leaked to the media before that. There had also been some
problems with the transmission to Phnom Penh from the Cambodian mission in New
York and with the translation into Khmer language, all of which could explain
some of the irritation that now appeared to surface in the Prime Minister's
office and the Foreign Ministry.
3 March a first response was given to the Secretary-General . It was published
immediately, though the Experts' report had not been made public at this stage.
The reply said, in part:
"We have never rejected the accountability of
the Khmer Rouge leaders for the crimes of genocide in Cambodia. We just want,
however, to caution that any decision to bring the Khmer Rouge leaders to
justice must also take into full account Cambodia's need for peace, national reconciliation,
rehabilitation and economic development for poverty reduction. Therefore, if
improperly and heedlessly conducted, the trials of Khmer Rouge leaders would
panic other former Khmer Rouge officers and rank and file, who have already
surrendered, into turning back to the jungle and renewing the guerrilla war in
letter also said that the Government now was studying the South African Truth
and Reconciliation Commission as a possible model for Cambodia.
points were reiterated in a meeting between Minister for Foreign Affairs and
International Co-operation, Hor Nam Hong, and me in Phnom Penh on 4 March.
6 March there was a further major development. One of the remaining key leaders,
Ta Mok (or Chhit Choeun), the former secretary of the south-west zone and second
deputy-secretary of the Communist Party of Kampuchea, was arrested at the Thai
border in northern Cambodia and brought to a detention centre in Phnom Penh.
From this moment the exchanges on a possible trial became much more real. The
arrest also put time pressure on the discussions; according to Cambodian law
no-one can be held in pre-trial detention for more than six months.
following week Foreign Minister Hor Nam Hong was sent to New York to meet the
Secretary-General and to deliver an aide-memoire. The document, dated 12 March
1999, starts with a reference to the fact that Democratic Kampuchea was allowed
to occupy the Cambodian seat in the UN until the signing of the Paris Peace
Accords in 1991. It says that the Khmer Rouge was legitimised through the
Accords and also became seated in the Supreme National Council during the
transition period. Obviously the message was about UN hypocrisy.
aide-memoire, further, referred to the June 1997 letter of the two Prime
Ministers and stated that there was no concrete response from the UN until the
second half of November 1998.
"Only when the process of gradual
disintegration and capitulation of the Khmer Rouge leaders and the ranks and
file virtually reached its conclusion, then the 3 UN Experts arrived in Cambodia
on a Mission".
surrender of Khieu Samphan and Noun Chea was described as a culmination of "the
total collapse of the Khmer Rouge movement militarily and politically". The
government would now focus on other priorities, primarily on economic
development and poverty alleviation.
"... Ta Mok, as a top Khmer Rouge hard-liner,
remains the most vicious murderer and has committed countless, most serious
crimes until the very day he was captured by the Royal Cambodian Armed Forces...
The process [against him] will ensure the standards of judicial fairness and
appears that the tribunal had been considered as a means of defeating the Khmer
Rouge. When this goal now had been achieved through other means, there was no
need to try anyone else than the one person who had refused to surrender: Ta
Mok. When referring to the process against him, international standards were not
legal arguments were put forward. One was that the Genocide Convention did not
require that the crime of genocide necessarily be tried in an international
court; its Article VI mentions the possibility of domestic proceedings. The
other point appeared to be more absolute: that Article 33 of the Constitution
prohibited the government from arresting
and extraditing any Cambodian national to a foreign country. However, on
scrutiny, neither of these arguments held up as particularly relevant or
convincing (see below).
Secretary-General had now received the advice of the Group of Experts and the
negative comments from the government. On 15 March he submitted the report of
the Experts to the General Assembly and the Security Council. In so doing, he
expressed his own view that Khmer Rouge leaders responsible for the most serious
of crimes should be brought to justice and tried before a tribunal which met the
international standards of justice, fairness and due process of law. Impunity
was unacceptable in the face of genocide and other crimes against humanity, he
emphasised that if such standards were to be met, the tribunal must be
international in character. This did not necessarily mean that it should be
modelled after the existing ad hoc tribunals or linked to them; other options
could be explored taking into account the analysis and conclusions of the Group
of Experts. He also underlined that the success of any international tribunal
presupposed full co-operation of the Cambodian government.
with Hun Sen and others in March 1999
met again with Hun Sen on 25 March. Others present included the Foreign
Minister, the Minister of Justice Uk Vithun, the Senior Minister Sok An and the
President of the Supreme Court, Dith Munthy. Normally, I had seen Hun Sen
without the presence of other ministers; their attendance now seemed to stress
the importance and finality of the discussion. Also, the day before the meeting
another letter to the Secretary-General had been published which again made
references to Article 33 of the Constitution and Article VI of the Genocide
letter stated that the trial of Ta Mok would be conducted in a national tribunal
and it welcomed legal experts from foreign countries - if they were invited by
the domestic tribunal. Whether additional persons would be tried was to be
decided by the court itself. (Privately, Hun Sen told me at the end of our
meeting that Noun Chea and Khieu Samphan would be "invited" to the trial.
However, it was not clear whether they would come as witnesses or
Sen said in his opening statement that there would be no international tribunal,
outside or within Cambodia and that Cambodian law did not allow for the
participation of foreigners as judge or prosecutor. Advisors from some countries
might be accepted; it would be up to the prosecutor to decide on this.
Governments interested in supporting the trial could relate to the Ministry for
Foreign Affairs or the Ministry of Justice.
position contradicted the June 1997 request for international assistance. The
letter from Prince Ranariddh and Hun Sen had stressed that Cambodia did not have
the resources or expertise to conduct this very important procedure. This
particular problem had thereafter been analysed by the Group of Experts, which
had concluded that the Cambodian judiciary failed to meet three essential
conditions: a trained cadre of judges, lawyers and investigators; an adequate
infrastructure; and a culture of respect for due process. (These deficiencies
were, in part, the result of the mass killings during the Khmer Rouge regime
which crippled the judicial system badly).
own opinion was that the problems relating to the judicial system were so
manifest that they could not be quickly remedied for the purpose of a trial of
this magnitude through some advice only. Though the need for radical judicial
reform had been a major theme in my human rights reports, it had to be realised
that such a process of change would take considerable time. The Government's
platform for 1998-2003 had emphasised the need for judicial reform, stating that
"the judicial system and the courts are
necessary to be entirely overhauled. By law they ought to be independent, honest
was clear that only a tribunal which was truly international in character could
guarantee international standards of justice, fairness and due process of law.
However, it was important that the Secretary-General had clarified that such a
tribunal did not necessarily have to be modelled after either of the existing ad hoc tribunals (former Yugoslavia and
Rwanda) or be linked to them institutionally, administratively or financially.
There were openings here for other models.
there was no interest in such discussions at the 25 March meeting. The tone was
negative, even polemical, as reflected in this statement by Foreign Minister Hor
"The international community talks about
finding justice for the Cambodian people. Cambodia agrees to find justice for
Cambodians and for humanity. But
what has the international community been doing vis-à-vis the Khmer Rouge
lately? Once the genocidal Khmer Rouge regime was toppled, the so-called
international community continued to support the Khmer Rouge. The so-called
international community forced Cambodia to accept the Khmer Rouge as partners in
Paris peace talks and in the SNC. It said nothing about responsibility of the
Khmer Rouge, let alone prosecution of them. But now that Cambodia has achieved
peace and reconciliation, they call for an international tribunal. Can we trust
This is the moral aspect. Now for legal
aspects. We Cambodians suffered most and are those who most want justice.
Article VI of the Genocide Convention does not prohibit prosecution by a
national court. Article 33 of Constitution does not allow Cambodians to be tried
abroad. The proposed national prosecution is in line with law. International
standards are not clear. We are ready to accept international assistance in
order to respond to moral and legal aspects, and the desire for peace. Behind
the so-called international community are one or two countries who push for an
international tribunal. Some countries supported the Khmer Rouge until 1991. Do
they love Cambodians more than the Cambodians themselves?"
fact that these arguments were given such prominence, I felt, may have reflected
internal difficulties within the government in maintaining intellectual
standards. No international representative had said that the Genocide Convention
excluded the possibility of a national trial, this was not an issue. The very
wording of Article 33 of the Constitution did not support the Foreign Minister's
interpretation: it only stated that there was a need for mutual agreement
between the relevant governments before a national could be extradited. Such an
agreement would probably not be a problem if an international tribunal was
properly established and the Cambodian authorities were positively involved. The
Prime Minister did not come back to these points when I made these
presented two arguments to explain the changed position from the 21 June letter.
First, that the Khmer Rouge leaders still were active in June 1997 and
threatened peace and stability. When they surrendered or, in the case of Ta Mok,
had been arrested, the situation had changed. There was no longer any need for
help from outside. The other argument was that the Chinese government exerted
pressure against any international tribunal and when the Thai government had
refused to arrest Ta Mok on Thai territory, Hun Sen could no longer claim that
this was an international issue.
21 months: stalemate
government discourse had grown polemical and irritated. The UN history on the
Khmer Rouge was attacked, as were the previous and current positions of the US
and China. The Thai government was even accused of "sabotage".
arguments were made which were less than serious, such as that the Constitution
did not allow co-operation with an international tribunal outside Cambodia.
Moreover, there was the loose idea put forward - but never thoroughly analysed -
of trying "the South African model", which was understood to be a truth
commission based on voluntary confessions and forgiveness. My impression was
that all these strands in the discussion more reflected a general unease with
the whole situation than a clear and principled strategy.
reality, the discussion had come to an impasse. Though not spelled out in black
and white, the Prime Minister no longer stood behind the June 1997 letter. The
shift appeared to have begun with the surrender of Khieu Samphan and Noun Chea
and their December 1998 meeting with the Prime Minister. Hun Sen's memorandum on
21 January, though non-conclusive in approach, had hinted at arguments which
later became prominent. One of them was the perception of a contradiction
between peace and a tribunal.
point, however, seemed to have less weight after the arrest of Ta Mok. There
were no reports about security problems as a result of his being captured. It
was also difficult to combine the position that the Khmer Rouge was now totally
defeated and the argument that an international tribunal would lead to a new
civil war. As a consequence two other points were given more emphasis. One was
that it was "too late", the game was over. The other one related to Cambodia's
Sen has obviously seen the international tribunal as an instrument to defeat the
Khmer Rouge more than as a means of establishing justice. When Ieng Sary, Noun
Chea and Khieu Samphan had surrendered and Ta Mok were under arrest, the
tribunal became less important to him. But justice is a value in itself.
Prime Minister's criticism against the UN for not acting more speedily on the
June 1997 letter should be read against the fact that he himself had appealed to
the UN not to move on this matter until after the July 1998 elections. The
arguments for this request were that an already volatile situation should not be
further disturbed and that the government needed some room to encourage further
late was the UN? The experts were appointed more than a year after the original
letter from the Prime Ministers, in July 1998. They were ready to visit Cambodia
in September but it was decided to postpone the mission until November due to
the political tensions in August-September. The final report was delivered
exactly 20 months after the original request from the government.
time schedule was affected by the fact that the Security Council never formally
discussed the letter and was clearly split on the issue. Only through the
resolution in the General Assembly, in December 1997, was there a more formal
reaction from a UN body opening the way for a Secretary-General initiative. If
this, then, had been followed-up quickly, it just might have been possible to
have the experts visiting Cambodia before the election fever had set in, which
in turn might have produced another, more constructive, outcome.
Minister Hun Sen stressed his point about "national sovereignty" in March 1999.
This argument was always there, but had now become more dominant. The fact that
the Cambodian government was isolated in the eighties - while a Khmer
Rouge-dominated coalition was given a seat in the General Assembly was still,
understandably, a source of bitterness for Hun Sen and other CPP leaders. Also,
Hun Sen had continued to be critical of the UN mission, UNTAC, in 1992-93. He
maintained that the UN manipulated the elections in favour of FUNCINPEC.
explanation for his inconsistencies on the tribunal issue was probably his
deep-seated suspicion of the UN and the international community, which seemed to
have increased with critical human rights reports. Another factor that he
mentioned himself was the contradictory pressure exerted from the US and
pride alone, however, did not solve the problem of the flawed judicial system.
It was clear that the court system could not take on this task in a satisfactory
manner, as was admitted in the June 1997 letter. The situation in that regard
was little better now, 20 months later.
were two major problems in the justice system. One was that court staff was
still badly educated, inexperienced and under-resourced; this had obviously
contributed to widespread corruption. The situation was made worse by the other
problem: that the independence of the system was undermined also from outside.
In my work I had frequently been faced with cases of improper pressure from
powerful people, including politicians and military officers. All leading
lawyers I had talked with were in agreement that Cambodia by itself just could
not handle a Khmer Rouge tribunal relating to genocide and other crimes against
was an implicit recognition of the first problem in the tentative invitation
that had now been sent to some governments to provide legal advisors to a
tribunal on the Khmer Rouge (at the time this was obviously considered by Hun
Sen and his Foreign Minister as an alternative to an international tribunal).
However, the problem of the integrity - and thereby the credibility - of the
proceedings would not be satisfactorily addressed through such an approach. It
was important that people at large could genuinely believe that justice was
done. For that a stronger international element was needed, as the
non-governmental groups had stated.
the Prime Minister had said at our March meeting that he felt the role of the UN
on this issue had come to an end.
the Khmer Rouge tribunal was agreed:
discussions between the
Cambodian government and the UN
Part II: March 1999 January
"mixed" tribunal idea
the Prime Minister to close the dialogue with the UN on the Khmer Rouge tribunal
was a big decision. There had been a very strong reaction, including within his
own political party, against his meeting with Noun Chea and Khieu Samphan in
December 1998. Indeed, my meetings in March 1999 with other politicians,
including those from the CPP, indicated a broad support for a genuine trial
based on international standards. They encouraged me to continue my efforts in
spite of the stalemate.
did most of the foreign diplomats in Phnom Penh (and some of their collegues
based in Bangkok). The Secretary-General had submitted the issue to the Security
Council and the General Assembly through his 15 March 1999 letter with the
report of the Group of Experts appended. The Chinese were actively working
against any further UN initiative. In a meeting I had with the Chinese
Ambassador in Phnom Penh, he argued that the issue of the Khmer Rouge was an
"internal" matter and should not be dealt with by the UN not even on a
a broader Member State reaction came at the 1999 session of the Commission on
Human Rights, where Cambodia again was on the agenda. The resolution took note
with appreciation of the report of the Group of Experts and strongly appealed to
the Government of Cambodia to take all necessary measures to ensure that those
who are most responsible for the most serious violations of human rights were
brought to account in accordance with international standards of justice,
fairness and due process of law. The Commission encouraged the Government of
Cambodia and the international community to continue to co-operate for this
purpose. In other words, the interest of the international community was
the international community had not taken position on the precise model proposed
by the Group of Experts. The fact that the Cambodian government, at least
sometimes, had stated that it wanted a trial, made it difficult for a number of
governments to support the imposition of a particular approach on Phnom Penh. In
fact, several diplomatic representatives I consulted showed sympathy for the
idea that the tribunal be established in Cambodia, so long as its security and
integrity could be protected. The message appeared to be: continue the
discussions, your are free to explore other models as long as these meet the
next official move was another letter from Hun Sen on 28 April 1999 to the
Secretary-General. He now explained that, though the trial of Ta Mok and
possibly others would take place in an existing national court, foreign judges
and prosecutors would be invited to take part fully in the trial in order to
ensure that it met international standards of due process. A draft law would be
submitted for approval to the Cambodian National Assembly allowing for foreign
judges and prosecutors to take part in the proceedings.
formulation about the full participation of foreign jurists was not clear, but
seemed to indicate that they could act as judges and prosecutors and not only as
advisors. This opening gave rise to the idea of a "mixed tribunal" as a solution
to the impasse between the UN and the government. The Secretary-General had
given impetus to some creative thinking through his statement in March that the
trial should be "international in character" but not necessarily modelled on the
ad hoc tribunals on former Yugoslavia and Rwanda.
had also become more obvious that there were strong arguments for holding the
trial in Cambodia itself. Though the Experts had proposed that the tribunal be
held outside the country but in the Asia-Pacific region, this was not
necessarily the last word. If problems of security and the tribunal's integrity
could be resolved, there would be advantages of establishing it in Cambodia
itself. This would, for instance, enable the Cambodian people to observe the
proceedings closely and to see clearly that justice was being done.
idea of a "mixed tribunal" was discussed in a meeting in April between Hun Sen
and the US Senator John Kerry who had supported the idea. One aspect of the
approach was that there would be both Cambodian and international judges. Such a
tribunal had never been set up. The idea was innovative, but it was obvious that
it would be extremely complicated to implement.
I met Hun Sen on 18 May we discussed the idea further. He asked me, tentatively,
whether it would be possible for the Secretary-General to make appointments of
the international judges. I responded that any UN involvement in this connection
would depend on whether there were full guarantees that international standards
for justice, fairness and due process would be respected. The enabling
legislation to be drafted and adopted for this purpose would have to address the
concerns the Secretary-General had expressed in his letter of 15 March 1999 to
the General Assembly and the Security Council.
emerging idea of a "mixed tribunal appeared to reflect an attempt to combine, on
the one hand, the position that the trial must be held in Cambodia itself and
seen to be Cambodian and, on the other hand, the introduction of the necessary
guarantees that international standards would indeed be applied and upheld.
tribunal would be based on a law to be adopted by the Cambodian parliament. I
pointed out that the report of the Group of Experts gave important guidance as
to the characteristics of the required legislation both in relation to the
substantive law and the procedural aspects. Relevant international standards
would have to be incorporated and the applicability of the domestic legislation
relevant at the time clarified.
the procedural aspects there would be a need to clarify, for instance, steps to
ensure that the tribunal be protected against undue pressure; satisfactory
arrangements for the arrest of persons indicted; requirements for the assessment
of evidence; the procedures for appeal; a satisfactory mechanism for the
appointment of the judges, prosecutors and other professional staff; as well as
issues relating to the organisation and funding of the tribunal.
Sen stated that it would be very appropriate that experts should assist Cambodia
in the drafting of the legislation to ensure that it met the necessary
requirements of international standards. I undertook to convey this message to
the UN Secretariat and to propose that such expertise be provided. Any further
UN involvement after the drafting would depend on whether there was an agreement
on the inclusion of guarantees that appropriate international standards be
reported on these developments at meetings in the UN Secretariat in New York on
24 May and 10 June and recommended that expert assistance be given to the
Cambodian government for this purpose. In view of the background and, in
particular, the government reactions in March, it was decided that we should
seek another confirmation from the Prime Minister of his intentions.
sent him a note summarising my understanding of our meeting in May, including
his request that experts assist Cambodia in the drafting of the legislation to
ensure that it met the necessary international requirements. He wrote back
confirming that he was in agreement. He added, however, that he wanted the
experts to arrive as soon as possible.
UN Office of Legal Affairs had undertaken to analyse the legal requirements in
relation to a "mixed" tribunal. This would serve as a guide for the experts
going to Phnom Penh. It would include provisions relating to the legal basis of
the tribunal, its basic law or Statute, appointment of judges and a Prosecutor,
guarantees for the arrest of Khmer Rouge leaders upon request of the tribunal
and identification of needs for contribution in funds and personnel.
analysis of the Group of Experts on both national law and international
standards gave useful guidance on, for instance, the statutory limitation in the
old Code Penal (relevant in 1975 when the Khmer Rouge took power) and the
applicability of the Genocide Convention (e.g. the problem of whether there was
an "intent") and standards relating to Crimes against Humanity (e.g. whether
they apply outside an armed conflict situation).
special and difficult problem was the formulation on the personal jurisdiction
of this particular tribunal who could be charged? The Group of Experts had
used the notion that only "the most responsible for the most serious crimes" be
tried, an approach which also had been echoed in the General Assembly and Human
Rights Commission resolutions. There was therefore a need to find a legal
formulation which would limit the number of prosecutions without giving an
implicit amnesty to those outside that limited group. The Group of Experts had
concluded that this issue had to be resolved as a matter of "prosecutorial
at this stage it was clear that two issues might be particularly difficult: the
method of appointing judges and prosecutors, and the numbers of foreigners and
Cambodians among them. The Prime Minister had asked whether the
Secretary-General could appoint the internationals and I knew that he had,
informally, discussed the possibility of a fifty-fifty division.
this approach to appointment, however, there was a clear risk that the selection
of the Cambodian judges and prosecutors might get politicised. Also, it was
important to avoid any perception of two "classes" or categories of judges and
prosecutors. There were strong arguments for the same appointment mechanism for
all of them. In other words, the Cambodian nominations should also be endorsed
by the Secretary-General or by the impartial mechanism he would establish for
this purpose. A procedure through which the international community could reject
a Cambodian nomination would greatly increase the credibility of the tribunal in
the same time, it was important that the body in Cambodia involved in this would
be a judicial structure, not the government. The obvious choice was the Supreme
Council of Magistracy which, according the Constitution, was responsible, inter alia, for the appointment of
judges and prosecutors.
was also clear that the discussion on the numbers of international and Cambodian
judges and prosecutors might be affected by the decision-making rules. I wrote
in an internal memo: "It would of course
be safer to have a foreign majority among both prosecutors or judges. This will
probably be difficult for the Cambodian side to accept (this is why the point
about decision-making rules might be important). The essential point is that
it should not be possible for the Cambodians even if appointed from outside
to outvote the foreigners. There is of course a dynamic aspect here the
awareness that the Cambodian judges themselves cannot alone decide will reduce
the risk of pressure."
internal discussions were also helped by a thoughtful contribution from the
Lawyers Committee for Human Rights which stressed the importance of spelling out
in the enabling law the right to defence and appeal and that witnesses be
guaranteed security and protection, points which had not been well covered or
covered at all in an early Secretariat draft.
the Office for Legal Affairs was working on these problems, there was a need to
decide on the experts to go to Phnom Penh. I had some suggestions, but it turned
out that the Office of Legal Affairs was interested in taking on this task
directly. I welcomed this engagement, but the resulting delay had to be
explained in Phnom Penh. It was important that the UN now acted with speed and
determination. My hope had been that the legal experts would go at the end of
June; as things developed and due to other commitments, they did not arrive
until late August.
the meanwhile members of the Security Council were briefed. The outline of the
Secretary-General's proposal became widely circulated and was criticised by the
Cambodian government, in particular its suggestion that a majority of the judges
should be international.
Zacklin mission and further discussions
mission led by the Assistant Secretary-General for Legal Affairs Ralph Zacklin
visited Phnom Penh 25-31 August. A working group chaired by Senior Minister Sok
An had been appointed by the government to meet with the UN legal experts. It
handed over a draft for the enabling law. The UN delegation responded later
during the visit by handing over another draft; there were major differences
between the two.
differed on the very nature of the competent jurisdiction and whether it would
be part of the existing court system (Cambodian draft) or a special tribunal
established especially for the prosecution of those most responsible for the
most serious human rights violations during the Khmer Rouge regime (UN draft).
The Cambodian draft suggested that the Supreme Council of Magistracy appoint all
judges and prosecutors; a minority of them would be foreigners and nominated by
the Secretary-General. The UN draft proposed that all judges and the prosecutor
be appointed by the Secretary-General.
Cambodian draft reflected the existing system with a Municipal Court (Phnom
Penh), the Court of Appeals and the Supreme Court. Under the UN draft the
tribunal was composed of two chambers, a Trial and an Appeals Chamber plus a
Prosecutor and a Registry.
UN delegation summarised its main message in these words:
"If the trial of the Khmer Rouge leaders is
to meet international standards of justice, fairness and due process of law, and
gain the support and legitimacy of the international community, it is vital that
the international component of the tribunal be substantial and that it be seen
to be effective on the international as well as the national plane. This cannot
be achieved by merely adding a number of foreign judges to the composition of
the existing court system. Only a special, sui-generis tribunal, separate from the existing court
system, in which Cambodians and non-Cambodians would serve as judges,
prosecutors and registry staff accomplish this."
discussions ended with a pledge from the Cambodian side to review its draft in
light of the UN comments. The UN team understood that the revised draft would be
delivered before or during the Prime Minister's visit in New York in September.
his meeting with the Secretary-General on 16 September, Hun Sen presented an
aide-mémoire which listed three options for UN participation. One was that the
UN provide legal experts to collaborate with Cambodian lawyers and lawyers from
other countries to help draft the necessary legislation and also provide judges
and prosecutors to take part in the trial process at the existing Cambodian
court. The second option was to provide legal experts who would not take direct
part in the trial process and the third was to terminate the involvement at this
three options were also discussed in a subsequent meeting in New York between
Hans Corell and Ralph Zacklin of the Office for Legal Affairs and Senior
Minister Sok An. The UN officials, naturally, did not pick one of the options in
the midst of the ongoing discussion on the draft law proposal. The assumption
now was that "option 1" should be tried; if that did not work out, the UN would
have to end its involvement ("option 3"). The UN Secretariat was waiting for a
response from the government on the draft which the Zacklin delegation had left
behind in Phnom Penh. Sok An said the draft would be sent to the UN within one
or two weeks.
in New York the Cambodian delegation also met leading representatives of the US
State Department after which there seemed to be more understanding between the
two governments on this particular issue.
I arrived in Cambodia in October, the King had just made public in his monthly
bulletin a remark on the argument put forward by Hun Sen - that the UN
proposal presented by the Zacklin mission was a threat against "national
sovereignty". The King had written:
"Other sovereign countries have accepted, and
continue accepting, an international tribunal charged with judging their
respective nationals responsible for crimes against humanity. This does not
violate the sovereignty of the interested countries".
Yes, it is our sovereign right to invite the UN, he said during our meeting. To
ask for assistance is not to give up sovereignty. He said that UN assistance was
necessary and that he supported our consistent efforts for bringing to justice
the Khmer Rouge leaders.
meeting with Hun Sen was on the programme. The tone of that discussion was not
particularly constructive; he said at the start that he did not feel well and
obviously had a bad cold. He stated that he now wanted to conclude the
discussion and move to implementation. "We cannot wait any longer. We have been
disturbed too much by this issue."
general theme was "sovereignty". He stressed that he had not asked that this
issue be put on the agenda of the Security Council or, for that matter, of the
General Assembly. Doing so would create problems with the Permanent 5 read
China and the government did not want to do that. He reacted against the fact
that the Secretariat had given information to the Security Council on the issue.
He felt it was a violation that he had not even been informed about this
several times before the discussions appeared to have two chapters, one
rhetorical and one more concrete. Here some statements from the first part
(according to our notes):
"It is not for Cambodia to respond to the
Secretary-General but for him to respond to the three options put forward in my
"Cambodia wants to be given opportunity to be
masters of its own situation. You can participate, but do not try to be masters
of the issue".
"Let us hold trials and then see if it
accords with national and international standards. It will be done in accordance
with international standards. Leave it to us to do it."
"We do not want to ask for much money as for
the tribunals on Rwanda and Yugoslavia - if such money is available, it should
rather be used for roads, schools, prisons."
"In my General Assembly speech I mentioned
the need to review attitudes of some UN officials in dealing with members
states, for example the demand that Cambodian judges be reviewed by the
Secretary-General - where is the sovereignty in this? What is the Supreme
Council of Magistracy for? Is it only a rubber stamp? I just want to express my feelings about
some UN officials assisting the SG."
"My work is complete now that the
aide-mémoire has been handed over - I am waiting
for a reply. During Sok An's meeting with Mr. Corell, the latter had
asked which option Cambodia would prefer. We understand that if Cambodia says
that it wants the third option then it can be said that Cambodia does not want
the UN. But if Cambodia says it wants the first option, then it can be said that
Cambodia wants full UN participation. Sok An replied that it was up to
Secretary-General to reply. If I were the UN I would now let Cambodia get on
with it by its own."
"If they (the UN legal experts) go on about
nominations and majority of judges and so on, they are not participants. I do
not wish a foreign woman to come to Cambodia and dress up in a Khmer dress. I
want a Khmer woman to dress in a Khmer dress and for foreigners to come and help
put on the make-up."
"If the UN demands to have majority of judges
or to nominate judges, the UN will be masters of the process. For Cambodia,
there is a risk of being forever under tutelage of UN. If we can dissolve Khmer
Rouge, we can organise the trial. If no trial is held, this means that there are
no values any more. Thirty of my years have been dedicated to fighting Khmer
Rouge. I would like to be nominated for the Nobel Prize for that."
the more concrete part of the meeting he said that the US now played a
co-ordinating role in relation to the first of the three options the government
had presented to the Secretary-General. The "super majority" model is the most
Cambodia could accept.
best way for the UN to participate, he said, would be to provide advice on the
draft law. They had had meetings with the US ambassador-at-large David Scheffer.
A Russian and a French expert were now expected to come and help the government
in the drafting job. He also mentioned that they had invited former US Attorney
General Ramsey Clark.
new draft would be finalised very soon by the working group led by Senior
Minister Sok An and then sent to the UN legal experts. They wanted to have
prompt comments from the UN. They then intended to submit the final text to the
Council of Ministers. Final decisions would then be taken by the National
Assembly and the Senate. Hun Sen wanted the preparatory process completed and
the trial started in the first quarter of 2000.
on earlier occasions, I said that there would be no UN involvement in any
process to bring the Khmer Rouge to justice unless the Secretary-General was
convinced that the proposal ensured that recognised international standards for
justice, fairness and due process would be met. There would have to be
guarantees that there could be no political interference and that the whole
process would be independent.
the mission I also consulted representatives of the Cambodian non-governmental
groups. A summary of their views was formulated in a statement signed by the Bar
Association, Cambodian Defenders Project and Legal Aid of Cambodia on 22
October. They suggested that all judges and a foreign chief prosecutor should be
appointed by the UN and that non-Cambodians also should take part as
investigators in the process. In order that the independence of the tribunal be
fully protected they proposed that a foreign Chief Administrator should be
appointed by the UN and that there be an autonomous budget to be managed by the
Chief Administrator. They further stressed that there should be adequate
security for all court officials and that witnesses must be protected, also
after the trial.
assistance and government clarifications
new US Ambassador to Phnom Penh, Kent Wiedemann, had intervened in early October
in the process offering his "good offices". He tried to break the impasse
between the UN positions and those of the government and focused on the
differences regarding what "side" would have the majority of the judges. The
Zacklin mission had insisted that the international community must have the
majority in order to ensure international standards. The Prime Minister had
demanded a Cambodian majority using an argument about sovereignty.
Wiedemann's suggestion was that the Cambodians would be in majority but that
there would be a need for a broad majority for the decisions. The implication
would be that the international judges could not be ignored, at least one of
them had to be behind a decision for that to be valid. This was called a "super
US representatives had also discussed whether the trial would be special or
integrated into the existing legal-judicial system in Cambodia. Their proposal
was that a special chamber (or "session") would be created at the existing court
a formula they later described to me as "cosmetic". This approach, in turn,
spurred a discussion on using new terms (with a risk of further unclarity).
suggestion of the US Ambassador appeared to have been that the personal
jurisdiction would be limited to a fairly small number, but that Ieng Sary would
be included in that group.
he was reported to have proposed that the UN monitor the process to ensure that
international standards were being met. If they were not, the international
community would withdraw (including the funding). This suggestion seemed
somewhat odd in a discussion about a much closer UN involvement, but the implied
message was probably that the other international actors, including the US,
would follow the UN lead on continued involvement or not.
the US intervention in some respect was helpful, it would have been more useful
if there had been better co-ordination with the UN efforts or with other
governments. I was not consulted on Ambassador Wiedemannfs initiative, nor was
anyone else on the UN side. This gap was partly remedied in mid-October when I
and Ambassador David Scheffer were in Phnom Penh at the same time.
met Sok An, the chairman of the government working group on the Khmer Rouge
issue (who had met the Zacklin delegation in August). He made clear that the US
government did not want to replace the UN in this dialogue, but rather help
moving the process forward. Its position was that the US could not support or
take part in any trial which was not approved by the Secretary-General. The US
Government was not willing to step in as an "alternative" to the UN. A French
diplomat told me the same about the position of his Government and the Russian
Ambassador appeared to take a similar position.
impression was that language now indeed was important to the government: it did
not like the term "mixed" tribunal and wanted to distance itself from the
terminology of the international tribunals. For the court itself, their
preferred term in French is "audience extraordinaire", in English "extraordinary
I had with key personalities like Chea Sim, Ranariddh, Sar Kheng and Sok An
appeared to confirm the impression that that key decision-makers felt that a new
terminology was part of a face-saving solution to the "sovereignty"
it was clear that government representatives had come further in their own
thinking about the concrete aspects. On the legal standards to be used, they
wanted to use the term "politicide" or "autogenocide". It was clear that they
wanted the specificity of the Cambodian experience to be recognised and made the
comparison with the association of the term "apartheid" with South Africa.
were prepared to accept the super majority concept, but insisted on a majority
of the judges being Cambodians. They suggested 5 judges at the first level, 7 at
appeals level, and 9 in the Supreme Court. The Cambodians among them should be
appointed by the Supreme Council of Magistracy, the constitutional body in
Cambodia with the Authority to appoint judges (as its membership was dominated
by the CPP, its political impartiality was questioned by many, including the
King himself). There appeared to be no opening for the possibility of recruiting
the Cambodian judges from outside the existing pool of sitting judges. However,
Sok An agreed on the need for mutual confidence in the process of
prosecutors, the Government was considering the model of having one Cambodian
and one international prosecutor and perhaps also two investigating judges in
line with the existing Cambodian system. A serious problem emerged: the
government had in mind that the two prosecutors would have to sign the
enabling law would make clear that a limited number would be prosecuted; it
would use a formulation like "the Standing Committee of the Central Committee
and those responsible for the most egregious crimes". Also, the government
promised that those indicted would be arrested. It also confirmed the formula in
the June 1997 letter that the temporal jurisdiction period would be 1975-79
thereby dropping the idea that Hun Sen had floated that crimes before and after
that period also be covered.
UN had made clear that the possibility of amnesty and pardon should not be
available in cases of crimes against humanity. The government, however, was not
prepared to formally bloc the Constitutional right of the King to grant amnesty
or pardon. However, it seemed this was not a matter of serious dispute.
the whole, the American intervention had caused some optimism but also
confusion. The fact that it was the US acting alone was significant. Hun Sen,
and others, obviously believed that with US support any trial would not be much
made a statement on 19 October at the Pochentong airport which was obviously
unplanned and took others in the government by surprise:
"At this hour, we and the UN, especially
considering the US position towards us, can reach a deal. I have agreed to this
proposal, there is no more doubt left".
Some days later when I met him he made no reference to this statement and gave
the impression of talking a totally different language.
General Assembly in its annual resolution on human rights in Cambodia encouraged
the government to continue its co-operation with the UN with a view to reaching
an agreement on the tribunal issue.
reply to the document that Ralph Zacklin had handed over in late August came on
20 December. It bore clear traces of the proposals by Ambassador Wiedemann.
Special or Extra-ordinary chambers (or "sessions") would be created at the
Municipal Court, Appeals Court and the Supreme Court. There would be a majority
of Cambodian judges at each level: three out of five at the first, four out of
seven for the Appeals and five out of nine at the Supreme court level. The
President of the court would always be a Cambodian. All in all, there would be
14 Cambodian and nine foreign judges. They would all be appointed by the Supreme
Council of Magistracy. The foreign judges would be nominated by the
Secretary-General, after consultation with the Government.
decisions by the judges would be taken by "super majority" as proposed by the US
Ambassador. For instance, for a decision at trial court there would be a need
for support by four of the five judges, in the Appeals by five of the seven.
would be criteria defined for the selection of judges and prosecutors - to be
determined later. The text seemed to say that the pool of Cambodians would be
limited to judges who were now in service which is a serious restriction in view
of the limited number of suitable professionals among them. Another noticeable
restriction was that the support personnel would be recruited from Cambodian
civil servants (this effectively excluded good candidates from the civil
society, an important pool in Cambodia). The Government itself would make the
appointment of the Director of the Office of Administration.
would be co-prosecutors, one Cambodian and one foreigner. They would also be
appointed by the Supreme Council of Magistracy, the foreigner nominated by the
Secretary-General. For prosecution both of them had to approve the indictment,
which meant that one of them could block a prosecution proposed by the other.
were also some problems on the substantive law aspects, including a
reformulation of the definition of genocide in comparison with the Convention
which would create problems. However, the main problem was that there were not
sufficient guarantees for an independent process.
record of the Supreme Council of Magistracy with regard to integrity was not
convincing. Even if it, in reality, was unable to turn down nominations from the
Secretary-General, it was a major flaw that the international community was not
given an opportunity to comment upon Cambodian nominations. This, also, would
create the impression of two categories of judges, one of which would not be
able to say that it had international support. That one co-prosecutor, according
to the draft, could block the action of the other was also a major problem; in
reality, it could prevent legitimate prosecutions.
early December, the Prime Minister had himself made a significant intervention
in the judicial field. He had accused judges of corruption and ordered the
re-arrest of people who had been acquitted through by court decisions. Though
his criticism about malpractices tallied with my own observations, his
intervention also demonstrated that the integrity of the judicial system was not
respected by the executive power. The Supreme Council of Magistracy was clearly
sidelined in this incidence, a bad omen for its possible contribution to a Khmer
the controversial issue about how many Khmer Rouge leaders would be charged, the
Prime Minister had again made public statements. He said in a speech that "we
will try four or five of the people responsible". This was unfortunate,
especially against the background of the other question marks regarding the
independence of the judiciary in Cambodia. The figure of four or five indictees
almost named them in advance. On whether Ieng Sary should be indicted, the Prime
Minister had declared different positions on different occasions. In December he
said that Ieng Sary should be excluded from prosecution.
sum, the draft law proposal was not acceptable. It did not contain sufficient
guarantees for justice, fairness and due process. Even in a formal sense the
Government had not divorced itself from the proceedings. Knowing also the real
influence from the Government on the judiciary we had to conclude that there was
not sufficient protection built into the proposal.
view was that the "super majority" approach would only be acceptable if an
international mechanism screened all judges and prosecutors. The
international community should at least be given equal status with the Supreme
Council in the appointments.
idea of a "mixed" tribunal was built on the assumption that the international
community would introduce the necessary standards. It was important that the
tribunal be credible also in Cambodia itself. This in turn appeared to be
directly connected to the degree of international participation. It was
significant that the local human rights groups had argued for a majority of
foreign judges, if not a totally international tribunal. For the sake of
credibility it was also important to demonstrate that the Khmer Rouge
proceedings were organised in a way that was clearly different from other
trials in Cambodia. That was one argument for a special tribunal approach,
rather than the "extra-ordinary sessions" linked to the existing system.
its 20 December 1999 submission, the Cambodian government had asked the UN
Secretariat to reply quickly and so it did. On 23 December a response was given
with points as outlined above. The cabinet was now being involved in Phnom Penh
and on 28 December the UN received another proposal, with minor amendments to
the 20 December text again with a request for a speedy response. The
Secretariat sent its reaction on 5 January. On 18 January the UN received an
approved translation of the draft law which was also submitted to the National
Assembly and thereby made public.
government proposal to the parliament had alternatives on who could nominate the
foreign judges and prosecutor; apart from the Secretary-General, foreign
governments would also be invited to make such proposals. A further option
specified was for the Cambodian government itself to recruit among individual
foreign jurists (these provisions had been there in an original draft, been
omitted and then reintroduced again).
were other aspects in this new draft which were problematic. The reference to
investigating judges was retained, which meant, in reality, another filter
against action by the prosecutor. Even in the ordinary court system in Cambodia
the investigating judge procedure has been confusing and not worked
was also, still, insufficient provision for the involvement of foreign defence
councels and for the protection of witnesses. Also, it was not made clear that a
previous amnesty would not bar prosecution.
the government signalled that the dialogue with the UN might not be seen as
closed. In fact, the UN had invited the government to send representatives to
New York for further discussions, but the government wanted the UN experts to
come to Phnom Penh instead. The UN proposed discussions on major issues of
approach and principle, the government wanted technical talks.
concerns remained in the bill which had been proposed to the parliament as was
explained in a letter from the Secretary-General to Prime Minister Hun Sen on 8
February. They included four particular issues: 1) that there be guarantees that
those indicted be arrested; 2) that there would be no amnesties or pardons; 3)
that the prosecutor be foreign in order that independence be guaranteed; and 4)
that the majority of the judges be foreign and appointed by the
Secretary-General. He wanted a response to these points of principle before
deciding to send a team to Cambodia for further discussions.
his response on 10 February Hun Sen wrote that he was surprised by "the gap between the position raised in your
letter and ours, which has been already supported by a number of distinguished
UN member states".
Secretary-General met Hun Sen on 12 February in Bangkok. After the meeting he
reported: "The main concern of the United
Nations is to ensure that the judicial system set up for this purpose under
Cambodian law does indeed reach international standards. It must guarantee the
arrest and surrender of all indictees; it must exclude any amnesty for genocide
against humanity; and it must include an
appropriate international element among both prosecutors and judges".
visited Phnom Penh from 16 to 22 March, heading a seven-person legal-political
UN team. Some agreements were reached but the government decided not to forward
these to the National Assembly, a situation which, later, would cause some
confusion. The outstanding issue at the end of the Corell mission was about the
possibility for the foreign prosecutor to act without support of his Cambodian
Sen touched on this issue in a statement before going to a Group of 77 meeting
in Havana in mid-April where he also would meet Kofi Annan. He warned that if
there was no support for his position that the two prosecutors had to agree to
any indictment, one of the prosecutors (the Cambodian, he meant) might press for
the American leaders or those who supported the Khmer Rouge to be dragged
their meeting in Havana, Hun Sen
and the Secretary-General agreed to let their working groups meet once more to
continue the discussions to resolve finally all differences. On 27 April,
however, the Prime Minister wrote to the Secretary-General again stating that
the law would also open for prosecution of crimes committed from 1970 to 1999.
This would mean a clear politicisation of the process.
issue of whether one prosecutor might bloc charges from the other came up for
further discussions, including at a meeting in late April between Hun Sen and US
Senator John Kerry who this time acted in some consultation with the UN
Secretariat - leading to a proposal in Phnom Penh that a separate panel of
judges would resolve any dispute between the two prosecutors. A separate
proposal from one of the prosecutors would only be blocked if four out of five
judges (three Cambodians and two foreigners) in this special panel turned it
down. Though this approach seemed unconventional and even unprincipled, it was
described in some media as a major compromise on the side of the Cambodian
Corell returned to Phnom Penh in early July for a final round of negotiations.
After the talks he described the tribunal as "a Cambodian court with the
participation of international judges and prosecutors". This was a
clarification; the process should no longer be seen as an international one on
Cambodian soil or even a "mixed" trial - the process would be Cambodian with
help from outside. This appeared not only to be a question of recognising that
the enabling statute would be a law adopted by the National Assembly, but also a
message that the UN would not play a balancing role.
handed over a draft Memorandum of Understanding that would govern the
relationship between the UN and Cambodia on the tribunal; this would be signed
after the National Assembly had passed the legislation faithful to the
understanding between the two parties. It was made clear that the UN would be
unable to support the "Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed during the Period of Democratic Kampuchea" if
the National Assembly adopted a law differing substantially from what was
outlined in the draft Memorandum of Understanding.
the law, at long last, was adopted by the National Assembly on 2 January 2001 it
contained some differences in relation to what was discussed during the Corell
mission in July. The major point was that the law did not state that a previous
amnesty would be ignored for the crime of genocide, war crimes and other crimes
against humanity. The
issue, again, was whether Ieng Sary could be prosecuted or not. He was the only
Khmer Rouge leader who had been granted an amnesty signed by the King. It was
clear that no further amnesties would be considered but what about Ieng
had proposed in July that a sentence might be added to the relevant article
(Art. 40) in the tribunal law: "An amnesty granted to any person falling within
the jurisdiction of the chambers shall not be a bar to prosecution". This
suggestion, obviously referred to the case of Ieng Sary. In a separate note
Corell had written that the UN was "prepared to discuss this matter when we
finalize the MOU". This had been interpreted by the Cambodian negotiators as
opening for such a discussion after the law was adopted and the sentence
suggested by Corell was not included in the law as adopted by the National
letter was sent from Corell on 9 January to Sok An expressing dissatisfaction
about developments. The draft Memorandum of Understanding had made clear that an
amnesty to any person should not be a bar to prosecution. Corell also stressed
that this had been a major issue during the discussions in July. Sok An's
comment to the media was that this issue could be clarified in a future meeting
Assembly, and later the Senate, had approved a special court within the existing
Cambodian judicial system, with participation of UN nominated judges and one UN
nominated co-prosecutor. The majority of the judges would be Cambodian and
appointed by the Supreme Council of Magistracy while the Secretary-General would
suggest that foreign judges and the co-prosecutor, also to be approved by the
Minister Sok An analysed the compromises made with the UN when he introduced the
final law proposal to the Assembly on 29 December 2000. The first was that
foreign judges would take part in this national, but extraordinary trial. The
second compromise related to whether Cambodian or foreign judges would be in
majority; the solution was that the majority would be Cambodians, but that there
would be a "blocking minority". The third was about the prosecution: there would
be two co-prosecutors; one Cambodian and one foreign. Next compromise related to
how a disagreement between them or the investigating judges would be handled: a
special Pre-Trial Chamber would be set up to resolve any such disputes. Finally,
the law states that the Government would not submit to the King any proposal on
amnesty or pardon in these cases (thereby not undermining the constitutional
Royal authority to grant amnesties).
did this mean in regard to the four concerns expressed by the Secretary-General
in his letter of 8 February 2000? The first, that those indicted be arrested,
had met no formal opposition from the Cambodian side. The second, that there
would be no amnesties or pardons, appeared to be covered by the somewhat unusual
formulation in the law that the government would not ask the King to take such
decisions (and assuming that he would not take such an initiative himself). The
third, that the prosecutor be foreign, had not been accepted, though the formula
presented appears to give both co-prosecutor room for independent initiatives.
The special mechanism to resolve conflicts between them requires a broad
majority to bloc any move by one of them (which probably means that the panel
will not be used other than in an extraordinary situation).
Secretary-General's fourth point, that most of the judges be foreign and
appointed by himself, had not been met. The Cambodians would be in majority at
all three levels, the two groups of
judges would be nominated through different procedures and all of them
would finally be approved by the Cambodian Supreme Council of Magistracy. To
strengthen the foreign element in the decision-making, a requirement of broad
majorities had been introduced. This was one of the solutions which the
Cambodian non-governmental groups had warned against.
ideal model would have been an international ad hoc tribunal in Cambodia with judges,
prosecutors and other staff appointed through a credible international
mechanism. This could have been designed through an enabling law in the
Cambodian parliament which would have invited the UN to come for this purpose.
would have been possible to include some Cambodian jurists in the process,
including as judge or prosecutor, but these would be appointed on merit and act
as international appointees. Such an arrangement would have several of the
advantages hoped for in the "mixed" tribunal approach. In the end, this model
was not politically possible. But for the UN to agree to participate in a
"mixed" tribunal, there had to be guarantees for the integrity of the process.
This is fundamentally what the discussions had been all about.
guarantees for international standards require watertight protection against the
risk of direct or indirect political pressure. Of course, the Cambodian
participants are more vulnerable than the international appointees. It is also a
question of demonstrating to the Cambodian public that genuine justice is being
carried out. In view of the cynicism in Cambodia about the justice system, some
really clear signs of change are necessary.
is why it would be important also for the Cambodian judges to be endorsed
through an international mechanism and that there be no limits to recruit them
outside the list of now practising judges. The pool of possible candidates needs
to be widened, also considering
that so many Cambodians have a personal stake in any process against the Khmer
"super majority" notion is clearly a compromise and not without problems. It
carries an implicit notion of there being two categories of judges - which would
be an unfortunate perception even in more normal circumstances. Such a notion of
two "sides" seems to be based on a lack of trust which ought to be handled more
directly. Also, the model could in real life lead to stalemate situations in
which there would be a majority,
but not a large enough one for a decision.
international standards indeed are to be met, neither the Prime Minister nor any
other politician in Cambodia should influence the trial or be seen to do
so. The tribunal should not be an
instrument for political purposes. The main problem with the final compromise is
that it does not offer full guarantees on this crucial aspect; there is a
widespread concern in Cambodia that Prime Minister Hun Sen will be able to
influence the proceedings heavily.
Sen once said, with apparent pride, that he had defeated the Khmer Rouge first
militarily, then politically and now would like to seal these achievements
through a trial. On other occasions he talked about the tribunal as a means of
crushing the movement; but when that happened, that there was no longer a need
for the trial (except for one against Ta Mok, who never surrendered).
strong reactions against the proposal of a tribunal outside Cambodia appeared to
have several roots. One was that it might have give the impression that the
government was unable or unwilling to have a trial organised at home. Though he
admitted the inadequacy of the Cambodian judicial system in the June 1997
letter, this has not been an easy recognition for him. And if there were to be a
trial he would definitely want to take credit for it.
raises the question of the border between the executive and judicial
authorities. A truly independent trial in such a fundamentally important case
would be a huge step in a land which has not yet moved from previous notions or
Royal or "socialist justice" to true independence of the judiciary. The
protracted discussions with the government, the executive branch, on how to set
up the trial may have perpetuated the impression in Cambodia of a blurred line
between judicial and political authorities. Prime Minister Hun Sen himself
sometimes stated that he stood outside the process while he in reality dominated
every bit of it and most often made no secret of that fact. His repeated and
contradictory statements on whether Ieng Sary should be prosecuted or not is a
in turn, may have given some credence to the strange notion that there is a
contradiction between international standards for a just trial and "national
sovereignty". One of the most important Cambodian statements in this whole
discussion was the note King Sihanouk made in his monthly bulletin that there is
no such contradiction.
strategy of the Prime Minister appeared to have been based on three options: a)
an agreement with the UN on a "mixed" tribunal, b) inviting some governments
(e.g. US, France, Russia, Japan and/or India) to co-operate directly through
sending judges, or c) inviting individual lawyers (e.g. US lawyer Ramsey Clark)
to take part in the process.
clearly had mixed feelings about the UN option, partly based on his old
animosity towards the organisation. He therefore wanted to set limits for how
much he was ready to compromise with the UN and force it to say yes or no. If
the answer was no, he could blame the UN and at the same time try option b) or
was faced with UN legal experts who stated that the UN could only take part in
the process if there were clear guarantees for the international standards on
justice, fairness and due process. Very important was that the key member states
in the end decided to avoid going alone and to support the UN discussions. This
effectively blocked option b). It also became clear to the government, I
believe, that option c) would not be credible in particular, after a breakdown
of talks with the UN.
the real options for the government turned out to be an agreement with the UN
(which would require guarantees for the independence of the process) or
trying Ta Mok and Deuch and perhaps some more in an existing domestic court
without international participation. The latter alternative would meet all the
problems which had been identified in the discussion so far. Also, such a trial
would be thoroughly monitored by the Cambodian media and organisations as well
as by the international community and its shortcomings exposed.
has been argued that a less-than-ideal compromise between the UN and the
government on the tribunal might be corrected by the dynamics of the process
itself once started. One factor would be the personal influence of the
(hopefully) independent and competent foreigners involved, even if these were in
minority. These would also have the option of leaving the process if they became
dissatisfied and the awareness of this risk/probability might also function as a
protection against abuses. The scrutiny by the media and the NGO:s may also have
a positive influence. Therefore, for the government to exert distorting pressure
on the tribunal might therefore, in reality, not be so easy.
may be a grain of truth in this prediction, but this is no good reason to accept
an unsatisfactory model which might cause procedural infighting in the tribunal
and thereby weaken its moral stature. Also, it is important to realise that the
Cambodia tribunal may potentially be an example for the future in other
situations. Also for that reason it would have been important to build its
construction on principles, rather than on political compromises.