"METODO", N. 18/2002

H.E. Julio A. Jeldres
(Official Biographer to King Norodom Sihanouk of Cambodia
State Minister of the Kingdom of Cambodia and a freelance writer based in Bangkok)


It is easy and fashionable in today’s world to criticize the United Nations for everything that goes wrong in our imperfect world. Yes, the United Nations is not perfect but under the current Secretary General, Kofi Annan, a process of reform has begun and is progressing well.
It should be recalled, at the outset, that following an official request from the Cambodian government on 25 June 1997 signed by then First Prime Minister, Prince Norodom Ranariddh and Second Prime Minister, Hun Sen, the UN Secretary General appointed an eminent group of experts who went to Cambodia to study the situation and find a way of proceeding with the tribunal.
In the interim, Mr. Hun Sen overthrew Prince Ranariddh in a bloody coup in July 1997 and made separate agreements with different Khmer Rouge leaders who have benefited since of some kind of immunity and are able to live freely in Phnom Penh, or in the Khmer Rouge enclave of Pailin or travel abroad with Cambodian diplomatic passports provided by Mr. Hun Sen.
The UN group of experts, led by Sir Ninian Stephen, one of Australia’s senior legal minds, recommended, in March 1999, that a full blown international war crime tribunal – such as the ones covering the former Yugoslavia and Rwanda – be set up for Cambodia, which would be subject solely to international law. The Cambodian government rejected this approach on grounds that it would infringe upon Cambodia’s sovereignty.
In reality, Prime Minister Hun Sen has never been interested in having an independent court looking into who did what and to whom during the rule of the Khmers Rouges nor has he been interested in UN participation in the process. In August 1999, Prime Minister Hun Sen said that “we are trying to find a compromise to deliver real justice for the Cambodian people but the participation of the United Nations is not obligatory nor indispensable for us to complete this work”.
Further complicating the exercise, there existed huge discrepancies in the international community’s approach to the trial of the Khmer Rouge. The United States supported the experts’ recommendation but China announced that it would veto such an initiative when it reached the Security Council. China spared no effort to induce the Cambodian government not to embark on an international trial of the Khmers Rouges, with the Chinese Ambassador to Cambodia personally leading the lobbying effort and even visiting Cambodian ministers on weekends to get the idea of the international tribunal aborted.
France stated that it supported the efforts of the Cambodian government, including a Cambodian-run trial, as “the objective remained the stability of the democratic institutions and the economic development of Cambodia”.
The European Union for its part remained silent while ASEAN admitted Cambodia as a member on 30 April 1999, without so much as a passing reference to its past which had come to haunt it. The lonely voice of the then Thai Foreign Minister, Surin Pisuwan commented, to his credit, that Cambodia could not contribute to the development of ASEAN as long as it was not at peace with itself and its people.
The UN began then patiently negotiating with Phnom Penh and an agreement was reached in principle for what was termed “a mixed tribunal” which would be composed of the politically captive Cambodian judiciary and some foreign judged appointed by the United Nations. This “mixed tribunal” would operate in such a way that there would be no convictions without the approval of the Cambodian government as the Cambodian judges would outnumber the foreign judges at all the three levels of the tribunal.
After further negotiations it was more or less agreed that any decisions that may be reached by the tribunal would “be subject to a super-majority provision which would supposedly grant the foreign judges a kind of ‘veto power’ by requiring that at least one of them vote with the majority for a binding decision”.
The proponents of this super-majority concept failed to mention, however, that a “draw” between the Cambodian judges and the UN-appointed foreign judges would result in an acquittal of the person concerned.
It should also be said that the only reasons that prompted Cambodian prime minister Hun Sen to first reject and then agree to the idea of a “mixed tribunal” for Cambodia was his quest for international legitimacy and his regime desperate need of foreign aid but from the beginning of the negotiations he tried to limit the trial to some Khmer Rouge leaders only, not to the whole surviving leadership as suggested by the UN and international observers.

When, in January 2001, the Cambodian National Assembly approved a draft law designed to establish a war-crimes tribunal, the United Nations, human rights activists and some diplomats, initially privately and then publicly, expressed concern that the law, as it was drafted, had serious shortcomings from an international human rights perspective. Several international and local human rights NGOs were also ready to help the Cambodian government in the drafting process and asked for the opportunity to see the draft legislation prior to its presentation to the National Assembly. The Cambodian government denied their requests.
The UN’s chief negotiator, Hans Corell, had asked the Cambodian government not to present the law to the National Assembly, prior to the government reaching an agreement with the UN. The Cambodian government went ahead regardless.
Since then, the UN has raised several issues contained in that legislation with the Cambodian government. One was a provision that the accused person would not be allowed to choose counsel. This would undermine defendants’ right to proper defense and access top international counsel. The United Nations was also concerned that the Cambodian government may allow previous pardons or amnesties to stand thus allowing some Khmer Rouge leaders, such as Ieng Sary, the former Khmer Rouge foreign minister, to escape prosecution.
In the end, the UN legal division felt that, as proposed by the Cambodian government, the tribunal would not guarantee the independence, impartiality and objectivity necessary for the United Nations to be part of the exercise. What those who are now urging the UN Secretary General to change his mind and continue the negotiations have forgot is that the fundamental issue of UN participation is not to give legitimacy to an illegitimate judicial process but to make sure that the whole process is legitimate.
In today’s Cambodia that would be impossible. Consider this, since 1997 at least 100 people have been murdered for their political beliefs. These include the people that were murdered during the grenade attack against a peaceful demonstration on 30 March 1997, the more than 50 senior FUNCINPEC (royalist party) officials executed during the coup and those that were killed during the demonstrations that followed the July 1998 elections.
Until this day, not a single person has appeared in front of the Cambodian judiciary to answer charges for these crimes, despite assurances given by Prime Minister Hun Sen to all donor countries that proper investigations would take place and the guilty would be punished.
The Cambodian people have made it clear they want a tribunal but they know all too well that Cambodian courts do not dispense justice; justice can be bought. They will not accept a charade. National reconciliation and healing cannot begin until a tribunal is in place, which conforms to international standards and due process.