Talks on Khmer Rouge trials end without agreement

March 29, 2000
Issue 

By Allen Myers

PHNOM PENH — Negotiations between the Cambodian government and United Nations representatives, spread over five days, on arrangements for a trial of former leaders of the murderous Khmer Rouge regime of 1975-79 ended without formal agreement on March 21. The UN delegation departed the next morning.

The sending of the UN team appeared to be a partial retreat from the hard line it has followed for the past two and a half years. According to international media reports, the United States, French and Japanese governments have urged the UN to compromise with Cambodia.

The Cambodian government asked in June 1997 for UN assistance in conducting a trial of Khmer Rouge leaders. Through various negotiations, studies and proposals since then, the UN's attitude has been that "assistance" means the UN taking over and running the trials. The UN's original "Committee of Experts" even recommended holding the trials outside Cambodia.

Because of the virtual total destruction of Cambodian society and the murder of most educated people by the Khmer Rouge, the Cambodian government genuinely needs assistance to conduct trials that can meet internationally accepted legal standards. But the government has not been willing to surrender Cambodian sovereignty in order to obtain such assistance.

In the latest negotiations, the sticking points were the UN's demands for an "international agreement" on the conduct of the trials, and the appointment and role of the prosecutors.

The UN continues to insist that Cambodia sign what amounts to a treaty concerning the conduct of the trials, claiming that similar agreements are always signed with the host government when the UN takes on some role in a country.

But those agreements normally cover only matters such as who pays for what expenses, who has legal jurisdiction over UN personnel and similar matters. In the case of the Khmer Rouge trials, the UN seeks to impose a treaty that would make the UN, rather than Cambodia, the real sovereign power in the trials.

The UN's proposed "agreement" has the further drawback of imposing obligations that are probably impossible to fulfil. For example, it wants the Cambodian government to "guarantee" that it will arrest anyone indicted by the court, which is equivalent to guaranteeing that the country's police are infallible.

It also raises some interesting legal and practical questions: for example, if a suspect indicted by the court happened to be living in California, would Cambodia be obligated to invade the United States in order to make the arrest?

After negotiations with the UN stalled in August, the government sent its bill to establish the trials to the National Assembly in January. The bill imposes all reasonable legal obligations on the government in regard to conducting the trials.

In this situation, the government argues that it would be inappropriate now to sign an agreement with the UN which contradicts or duplicates the bill and expect the National Assembly to act as a rubber stamp. However, separation of powers between the legislative and executive branches seems not to matter much to the UN.

The government's bill proposes co-prosecutors, one Cambodian and one appointed by the UN. This was a compromise put forward last year by the US government.

However, disagreement remains over what should happen if the co-prosecutors cannot agree. The Cambodians want decisions to be made jointly, while the UN wants each prosecutor to be free to proceed as he/she chooses — in effect, to have two prosecutors rather than co-prosecutors.

The name Kenneth Starr popped up more than once in and around the latest negotiations: if a single ambitious prosecutor could disrupt the US government for years, it is hardly surprising that the Cambodian government is unwilling to give a blank cheque to an unknown foreign representative of the UN, which has treated the present government with uninterrupted political hostility for more than 20 years.

The National Assembly is expected to pass the government's trial bill and any successful amendments next month. It will then be up to the UN to decide whether to provide the requested assistance for the trials mandated by that bill.

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