VOICES FROM THE KHMER ROUGE TRIBUNAL
Voices from the ECCC collects, preserves, and publishes testimonies of former officials, stakeholders, and parties who participated in the Extraordinary Chambers in the Courts of Cambodia. The project focuses on collecting video interviews that explore the perspectives and experiences of those who worked with the ECCC. Primarily, the project will interview former court officials, including attorneys, judges, and administrative and other staff. In addition, the project will seek to interview other stakeholders, including organizations that support the ECCC as well as Cambodian government, other government, and United Nations’ representatives. The project’s goal is to serve as an educational tool on the ECCC, as well as a resource for further scholarship and debate on the ECCC’s success, lessons learned, and legacy. All video interviews and transcripts collected thus far are available below.
I have dedicated over twenty years of my life to the pursuit of justice for Khmer Rouge victims and survivors, and my work with the Khmer Rouge Tribunal (otherwise known as the Extraordinary Chambers in the Courts of Cambodia (ECCC)) has given me a diverse spectrum of professional skills and experiences that make me well-qualified to be a team leader at the Documentation Center of Cambodia (DC-Cam). Between 1998 and 2007 (10 years) I worked for DC-Cam and between 2007 through 2018 (11 years) I worked for the ECCC, before returning to DC-Cam on 1 January 2019 as Director for Documentation and Democracy project. I am a child survivor and I have lost the majority of my close family members to the Khmer Rouge. My mother was executed during the Khmer Rouge regime and my brother disappeared. To this day, I have little information on what happened to my brother. In addition, both my father and sister died from malaria during the Khmer Rouge period, so in many ways it is my life’s work to give back to victims and survivors so their memory lives on. While I have worked predominantly in the fields of case analysis, data coding, and research in support of the ECCC and DC-Cam, I have been involved in a wide variety of grassroots projects and I have extensive experience in oral history research. While employed with DC-Cam, I interviewed over a hundred Cambodian and Cham victims, survivors, and Khmer Rouge cadres. I appreciate the importance of education, particularly because it is what gives teams and organizations the core competencies that are crucial to successful communication, learning, and future professional development. I have a Bachelor of Arts degree in English Literature and Education and a Master of Law and Political Science degree from the University of Build Bright (BBU), Phnom Penh, Cambodia. To me, leading teams means creating leaders on my team who understand the importance of our collective work. Ultimately, while the desired end state in projects must be measurable and documented for the public and the project’s supporters to see the progress in victims, survivors, and society, it is those small, intimate connections with the people we serve that really makes the value of our service tangible, as well as personally rewarding. I aspire to be the kind of team leader that not only can push teams to exceed the targets for projects but also see the tangible improvements to the individuals we serve.
Part I: March 1997- March 1999
by Ambassador Thomas Hammarberg
During 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.
Wherever 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.
Decision-makers, 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.
The 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 movement.
This 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 committed.
The 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.
However, the amnesty given to Ieng Sary in September 1996, in the name of national reconciliation, 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.
Even 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.
What 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”.
The June 1997 letter
In 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.
The 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 Sen’s. 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.
On 21 June 1997 a letter went off to the Secretary-General asking for 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 1979.
The letter further stated:
Cambodia 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.
We 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.
This 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 prepared.
In 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.
One 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 significant numbers).
At 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 people’s court 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.
How 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?
The 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 aspects.
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 Cambodia (52/135):
“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; “
Endorses the 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;
Requests the 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 accountability.”
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.
The formulations in the General Assembly resolution were also included in the resolution on Cambodia adopted by the 1998 Commission on Human Rights on17 April.
The 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.
After the reports on the trial 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.
In April, two weeks after Pol Pot’s 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 US initiative.
During 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.
On a more concrete level, he talked about a plan of his to arrest the three (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.
However, 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.
He 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.
At 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.
He also repeated that he hoped there would not be much publicity at this stage about the issue.
Prince 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.
During 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.
I 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.
One 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.
Hun 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.
At 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 1979.
The Group of Experts
The 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 Rouge.
Diplomats 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 particular interest.
In 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 jurisdiction.
The 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.
The 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.
The 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.
The Experts analysed the following legal options for bringing to justice Khmer Rouge leaders:
a) a tribunal established under Cambodian law in a domestic court;
b) a tribunal established by the Security Council or the General Assembly as an ad hoc international tribunal;
c) a hybrid option of a Cambodian tribunal under UN Administration;
d) an international tribunal established by a multilateral treaty; and
e) trials in third States.
Having 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.
The 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 and television.
They 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.
The 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.
This 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.
Another 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.
Negative government reactions
While 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.
Had there been a change of heart? Or had a price been paid for these crucial defections?
Hun 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.
The 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.
On 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 Cambodia.”
The letter also said that the Government now was studying the South African Truth and Reconciliation Commission as a possible model for Cambodia.
These 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.
On 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.
The 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.
The 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”.
The 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 effectiveness”.
It 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 mentioned.
Two 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).
The 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 stated.
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.
Meeting with Hun Sen and others in March 1999
I 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 Convention.
The 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 defendants.)
Hun 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.
This 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).
My 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 and trustworthy”.
It 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.
However, 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 Nam Hong:
“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 them?
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?”
The 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 clarifications.
He 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.
After 21 months: stalemate
The 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”.
Also, 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.
In 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.
This 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 sovereignty.
Hun 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.
The 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 defections.
How 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.
The 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.
Prime 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.
One 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 China.
National 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.
There 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 humanity.
There 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.
However, 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.
(end part I)
How the Khmer Rouge tribunal was agreed: Discussions between the Cambodian government and the UN
Part II: March 1999 – January 2001
by Ambassador Thomas Hammarberg
The “mixed” tribunal idea
For 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.
So did most of the foreign diplomats in Phnom Penh (and some of their colleagues 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 Cambodian invitation.
However, 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 reconfirmed.
However, 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 necessary standards.
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.
The 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.
It 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.
The 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.
When 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.
The 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.
The 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.
On 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.
Hun 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 respected.
I 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.
I 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.
The 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.
The 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).
A 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 policy” .
Already 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.
With 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 Cambodia.
At 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.
It 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.”
The 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.
While 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.
In 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.
The Zacklin mission and further discussions
A 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.
They 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.
The 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.
The 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.”
The 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.
At 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 stage.
These 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.
While 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.
When 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.
Another 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.”
His 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 beforehand.
As 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 aide-mémoire.”
“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.”
During 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.
The 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.
The 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.
As 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.
During 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.
US assistance and government clarifications
The 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.
Ambassador 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 majority”.
The 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).
Another 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.
Finally, 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.
Though 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 Wiedemann’s 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.
Scheffer 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.
Scheffer’s 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 session”.
Meetings 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” problem.
Also, 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.
They 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 appointments.
On 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 indictments together.
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.
The 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.
On 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 criticised abroad.
He 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.
The 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.
The 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.
The 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.
There 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.
There 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.
There 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.
The 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.
In 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 Rouge tribunal.
On 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.
In 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.
My 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.
The 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.
Further UN clarifications
In 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.
The 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).
There 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 well.
There 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.
However, 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.
Major 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.
In 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”.
The 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 or crimes against humanity; and it must include an appropriate international element among both prosecutors and judges”.
Corell 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 colleague.
Hun 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 in.
During 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.
The 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 government.
Hans 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.
Corell 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.
When 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 Sary?
Corell 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 Assembly.
A 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 with Corell.
The 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 Supreme Council.
Senior 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).
What 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).
The 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.
The 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.
It 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.
Such 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.
That 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 Rouge.
The “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.
If 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.
Hun 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).
His 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.
This 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 flagrant example.
This, 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.
The 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.
He 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 c).
He 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.
Therefore, 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 Duch 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.
It 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.
There 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.
The significance of the other differences was unclear. It was for instance no longer stated in the text that the judges had to be “professional” which could mean that other lawyers – outside the group of presently serving judges – could be appointed, which might be positive or negative depending on which ones in the end are selected. Another question mark was raised in relation to the defendants’ right to their own councels; this aspect appears not to be well covered in the adopted law.
After the National Assembly adopted the law Hun Sen, on 10 January, was reported in Bangkok Post to have said that Ieng Sary had brought peace to Cambodia and that there would be war in the country if the former Khmer Rouge leader were brought to trial.