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)
WHY THE UNITED NATIONS WALKED OUT
OF THE KHMER ROUGE TRIAL IN CAMBODIA
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.