By Allen Myers
PHNOM PENH — The Cambodian government is now awaiting the arrival of a team of United Nations legal experts to continue discussions on UN participation in a trial of former leaders of the Khmer Rouge (KR). This follows a "positive" meeting between Prime Minister Hun Sen and UN secretary-general Kofi Annan during the UNCTAD meeting in Bangkok on February 12.
Something positive was certainly needed, because the UN's role to date has been obstructive. Indeed, a letter from Annan to Hun Sen only four days before the Bangkok meeting seemed designed to discard months of efforts for an agreement.
It was in June 1997 that the Cambodian government first requested UN assistance in bringing to trial leaders of the regime that between 1975 and 1979 was responsible for the deaths of up to a quarter of the Cambodian population.
The response of the UN has been to insist on running the entire show, with little more than a fig leaf of Cambodian participation. Hun Sen said on February 11, referring to Annan's February 8 letter, which, among other things, would require Cambodia to arrest people indicted by a foreign prosecutor: "Cambodia's duty would be no different than a dog guarding a house, but we are not the owner of the house. The house is owned by someone else."
The UN approach to the issue contains more than a little imperial arrogance — an attitude of "We will decide what you unworthy colonials are capable of doing". But it also fits into a long record of attempts to undermine the legitimacy of the Cambodian People's Party (CPP) government headed by Hun Sen.
Record of hostility
For more than a decade after the KR government was overthrown with the aid of Vietnamese troops in 1979, China, Britain and the United States directly and indirectly supported the remnants of the KR forces, who carried out a low-level war against the new government from bases on either side of the Cambodian-Thai border.
The UN was a major instrument of this Chinese and imperialist policy, doing much of the actual provisioning of the KR camps. During the entire period, the KR was allowed to occupy Cambodia's seat at the UN, and Cambodia was isolated and denied desperately needed aid by the West.
A 1991 "peace" agreement signed in Paris provided for the KR and its anti-CPP allies to disarm and participate in national elections supervised by the UN in early 1993. In reality, the KR violated every single agreement of the accord, even refusing the UN access to the areas it controlled, while its allies entered and campaigned in government-controlled areas and the UN enforced every concession that the government had pledged, and even some that it hadn't.
The aim was to be rid of both the KR and the CPP through creation of a government of Funcinpec, the royalist party led by Prince Ranariddh. But while the UN's intervention managed to win Funcinpec a narrow majority in the elections, its real strength did not permit it to govern alone, and the result was an uneasy Funcinpec-CPP coalition.
The coalition ended in armed clashes in July 1997, amid indications that Funcinpec was attempting to do a deal with KR forces still located along the Thai border. While Ranariddh threatened to revive an armed resistance to the CPP, sections of his party remained in Phnom Penh and continued their participation in the government.
Elections in May 1998 were won by the CPP, but it established a new coalition with Funcinpec, including Ranariddh, who was elected president of the National Assembly.
These events became another pretext for isolating Cambodia, which was denied its UN seat until 1999.
In November 1997, in response to the Cambodian request for assistance with a trial of KR leaders, the UN General Assembly responded by creating a Committee of Experts to study what was needed. The resolution establishing the committee was also the first acknowledgement by the UN that genocide had occurred in Cambodia in 1975-79.
The committee, headed by Sir Ninian Stephens, the former governor-general of Australia, took all of 1998 to prepare its report. Rather than responding to Cambodia's request for assistance in a Cambodian trial, the "experts" proposed an international trial, controlled by UN-appointed judges, with a UN-appointed prosecutor, under UN rules and ignoring Cambodian laws.
This proposal was rejected by the Cambodian government. The senior UN human rights official on Cambodia, Thomas Hammarberg, then proposed a mixed tribunal of Cambodian and international judges, and that the UN should send a delegation of legal experts to assist the Cambodians.
Instead, in late August the UN sent a high-level delegation bearing the draft of a bill to be passed by the Cambodian parliament establishing the sort of trial proposed by the Committee of Experts.
At the same time, the Cambodian government presented the UN delegation with its draft legislation, asking for the UN's comments and suggestions. This draft was simply ignored by the UN.
With the situation at an impasse, in October a US diplomat brought forward compromise proposals. Many of these were partly or wholly incorporated in a draft law announced by the Cambodian cabinet in December and submitted to the National Assembly last month. This calls for two co-prosecutors, one Cambodian and one international, and a panel of five Cambodian and four international judges, which would have to make decisions by a "super-majority" including both national and international judges.
Annan's February 8 letter, instead of responding to these concessions, simply returns to the Committee of Experts proposals.
One of the most striking instances of bad faith on the part of the UN concerns the question of amnesty.
In its fight against the KR, the Cambodian government was forced, largely by the international support the KR enjoyed, to use more than military means. In fact, the government succeeded in splitting the KR leadership. In 1996, the first breakthrough came when Ieng Sary, once second in command to Pol Pot at the head of the KR, surrendered to the government.
Sary and Pol Pot had been tried in absentia on charges of genocide in 1979 and condemned to death. Obviously, Sary would not have defected in order to face execution; he was promised amnesty from that sentence, and also promised immunity from prosecution under a 1994 law outlawing the KR.
Sary's defection undoubtedly exacerbated divisions in the KR leadership that led to Ta Mok taking over and arresting Pol Pot in 1997. On January 1, 1998, units led by a KR commander named Ke Pauk mutinied against Mok and came over to the government. At the end of that year, two of the remaining top leaders, Khieu Samphan and Nuon Chea, surrendered.
Mok was captured in March 1999. In May, Kang Kek Ieu (known as Duch), who was commander of the KR's notorious Tuol Sleng torture and execution centre, was arrested and charged. Other KR leaders have been arrested for actions in the 1990s, but none for crimes in the 1975-79 period.
Aside from Ieng Sary, the government denies having promised amnesty to any of the former KR leaders, and even Sary could be tried for crimes against humanity and other crimes without contradicting the amnesty on the genocide charge. At present, however, these people are living peaceably in Cambodia.
It appears that Hun Sen is unwilling to risk a renewal of fighting by arresting KR leaders prior to gaining international approval for a trial. Such international approval is the Cambodian government's best guarantee against foreign governments once again assisting a KR guerilla movement.
Ignoring such concerns, the UN is insisting that the Cambodian government revoke any past amnesty, including Ieng Sary's, and pledge to arrest anyone indicted by international prosecutors — all this before it is at all certain that a UN-approved trial will take place.
Unfortunately, some human rights organisations have endorsed the UN demand without stopping to consider its hypocrisy: had it not been for the role played by the UN at the direction of the US, Britain and China, the KR leaders could have been brought to justice many years ago.
Hun Sen pointed out in an interview with Green Left Weekly in January 1999: "My final goal was not to get Ieng Sary, but rather to checkmate ... Pol Pot, and to destroy the organisation of the KR. And now we have put an end to the KR problem ...
"Compare the way I received Khieu Samphan and Nuon Chea and the way others have received them in the past. I received these people as they surrendered to the government, to live a life as normal citizens.
"From 1979 to 1994, others received Khieu Samphan as head of state and even provided him with escort cars when he went with Pol Pot and Ieng Sary to speak in New York at the UN. They were received as equals with other heads of state."
It's a point worth remembering when the UN's backers crank up the propaganda about that body being a guarantee of justice in Cambodia.