BY ALLEN MYERS
PHNOM PENH — In a surprise move on February 8, the United Nations Office of Legal Affairs (OLA) announced its withdrawal from negotiations to establish a mixed Cambodian-international tribunal to try surviving leaders of the Khmer Rouge (KR) regime, which was responsible for the deaths of up to a quarter of Cambodia's population during less than four years of rule in 1975-79. The result of the withdrawal could well be to allow mass murderers to escape justice.
The OLA's action had a certain blitzkrieg character. The Cambodian ambassador to the UN was informed of the coming announcement only 45 minutes before it was made, when it was the middle of the night in Cambodia. Ambassadors of big powers that favour UN participation in a KR trial — including Japan, the US, and France — were told only 15 minutes before the announcement.
At a press conference on February 12, Senior Minister Sok An, who heads the Cambodian government's task force on the KR trials, expressed "dismay at this completely unexpected announcement".
Sok An pointed out that the OLA's expressed pessimism about the prospect of further negotiations was belied by the progress that had already been made in talks between the government and the UN.
The UN withdrawal comes after four and a half years of persistent efforts by the Cambodian government to obtain international assistance in order to conduct a trial of the KR leaders who bear the greatest responsibility for the massacres.
Since the first Cambodian request in June 1997, the OLA has tried to replace the requested assistance with complete UN control. The UN's first response — a year and a half after receiving the Cambodian request — was to propose a trial held entirely outside the country, with no Cambodians participating, except as defendants and witnesses.
In the latter half of 1999, negotiations between the Cambodian government and the UN resulted in agreement on the creation of "extraordinary chambers" that would include foreign judges within the Cambodian judicial system. As Sok An pointed out at the press conference on February 12, this was a compromise between the UN desire for an internationally controlled trial and the Cambodian determination that international assistance not infringe Cambodian sovereignty.
At the end of 1999, the government introduced into the National Assembly a bill to set up the extraordinary chambers and define the crimes which it would judge. Passage of the bill was delayed for further negotiations with the UN, including during two visits in March and July 2000 by Hans Corell, the deputy secretary-general for legal affairs and head of the OLA.
The result of these prolonged efforts was agreement on a tribunal that would have a majority of Cambodian judges but would require the vote of at least one foreign judge to approve a decision. There would be co-prosecutors, one foreign and one Cambodian, and co-investigating judges. (Cambodia's legal system, like that of most of Europe, derives from the Napoleonic Code and has significant differences from that of most English-speaking countries.)
The bill to establish the KR tribunal was passed by the National Assembly and the Senate in January 2001. Cambodia's Constitutional Council then objected to one article that it feared could be read to imply the possibility of capital punishment, which is prohibited by the country's constitution. Amendments to satisfy these objections were introduced and passed, and the king signed the law in August.
At this point, the Cambodian government expected that the UN would send Hans Corell or another representative to negotiate and sign articles of cooperation covering the specifics of UN involvement in the trial and the few remaining areas of disagreement.
The latter appeared to have been reduced to 11 points that Corell had raised in a letter to Sok An in January 2001, most of which were of a minor nature or based on a misunderstanding (for example, Corell wanted the KR trial law to include a guarantee of the defendants' right to choice of lawyer, which was not added because it was already guaranteed in existing Cambodian law).
Who's in charge?
Instead of a visit to finalise the details, the UN in October sent a letter from Corell on January 22. It demanded a written reply to Corell's 11 points.
It also insisted on the idea that the eventual articles of cooperation should cover all the areas already covered by the Cambodian KR law, and take precedence over the law in case of any disagreement between them. In effect, this was a demand to return to the UN idea of an internationally controlled trial; the Cambodian KR law would become irrelevant.
The Cambodian position, aSok An pointed out in a November 23 reply to Corell, is that there is no need to establish a hierarchy between the KR trial law and the articles of cooperation, since they have different functions: the law deals with the establishment, structure, and procedures of the extraordinary chambers, while the articles of cooperation would "determine the modalities of cooperation" between Cambodia and the UN.
This is the central disagreement which Corell used to justify UN withdrawal. If the UN can't run everything, it won't even help.
At the press conference announcing the OLA decision, a reporter cut through Corell's long-winded justifications about "international standards of justice" and asked, "So it's not so much the specific points of the agreement that you take issue with, it's more of the controlling authority here?"
Corell replied with one word: "Exactly".
Aside from the broader concern to protect their national sovereignty, Cambodians' past experience with the UN makes them cautious about ceding control to that body.
For more than a dozen years after the KR were overthrown in January 1979, the UN still recognised the KR as the lawful government of Cambodia and allowed them to occupy Cambodia's seat at the UN. Throughout the 1980s, as a devastated Cambodia struggled to rebuild, most UN "humanitarian" assistance went to the refugee camps along the Thai-Cambodian border which the KR controlled and used as a base for a guerilla struggle against the new government.
The Paris peace agreement of 1991 established the United Nations Transitional Authority in Cambodia (UNTAC) as an allegedly impartial enforcer of disarmament and elections to end the civil war. In fact, UNTAC spent US$2-3 billion enforcing the government's obligations and trying to add to them, while it did nothing about the KR, who fulfilled none of their commitments under the agreement. With good reason, Prime Minister Hun Sen has said that UNTAC's main contribution to Cambodia was AIDS.
Justice when?
The Cambodian KR trial law includes provisions for proceeding without UN support, by seeking international support on a bilateral basis, but this is clearly a second-best alternative. The government is, for now, seeking to reopen negotiations with the UN.
But even if the OLA is forced to resume involvement in the process, further delays have already been created by its announced withdrawal. Some likely defendants, including the KR's top leader, Pol Pot, have died since Cambodia's first request for help; nearly all are old, and many are in poor health.
Bringing the surviving KR leaders to trial before they die is important not only as a matter of justice. To many Cambodians who lived through the KR regime, the UN's relations with the KR throughout the 1980s are a denial by the "international community" of the horror they experienced. A trial of the KR leaders with significant international participation would constitute an acknowledgment of their suffering (and therefore also of the UN's false position at the time).
As one legacy of French colonialism, massive terrorist bombing by the US in the first half of the 1970s and the devastation inflicted by the KR, Cambodia's judicial system is not capable by itself of conducting a credible trial of the KR. Few trained legal personnel survived the KR. And where judges' salaries are not enough to cover the cost of transportation to the court, corruption is of course widespread and notorious.
In order to try the KR leaders, Cambodia does not need a more precisely worded law, although it would no doubt be possible to produce one. What it needs, and deserves, is the financial and personnel assistance to conduct trials that allow Cambodians to impose real and credible justice on other Cambodians.
This is what Cambodia has been pleading for, and what the UN's actions seem determined to prevent.
From Green Left Weekly, February 20, 2002.
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