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Logo of Phnom Penh Post newspaper Phnom Penh Post - Comment: Justice for Khmer Rouge crimes is there for the taking

Comment: Justice for Khmer Rouge crimes is there for the taking

On May 6, 1998, Hun Sen visited Thailand for talks with Thai Prime Minister Chuan

Leekpai. It was ten months after Hun Sen's coup d'etat against Prince Norodom Ranariddh

and Funcinpec, two months after Ranariddh had returned from exile, and two months

before the July 1998 national elections.

The official agenda included discussions on border issues, land demarcation, displaced

persons, visas and the Stung Nam Hydropower station. These issues were discussed

in what Thai government documents describe as the "Plenary Consultation,"

which began at 6:10 pm at "Government House" in Bangkok.

But, as is often the case in meetings between political leaders, the most important

discussions took place in private. Before the plenary meeting, which included large

delegations from each side, Hun Sen had a separate meeting with Chuan. They met for

25 minutes in "Close Session" in the "Ivory Room."

According to the two-page, "CONFIDENTIAL" Thai government record of

the meeting, "The PM [Chuan] informed Hun Sen that the close meeting would last

about 10-20 minutes to allow him to raise issues he may not want to disclose during

the plenary consultation."

What Hun Sen wanted to talk about was the Khmer Rouge.

Thailand had supported the Khmer Rouge since it had been pushed out of government

and onto the Thai border by Vietnam in early 1979. Although by the time of this meeting

the Khmer Rouge had essentially collapsed - Ieng Sary defected in 1996, Pol Pot was

arrested by Ta Mok in June 1997 and he died in April 1998 - elements of the Thai

army continued to offer support to the remaining Khmer Rouge leaders. If Hun Sen

wanted to capture the remaining Khmer Rouge leaders and put them on trial, as he

had formally proposed almost a year earlier, he would have to speak to the Thais.

What Hun Sen suggested at this meeting thus came as a great shock to Thai officials.

According to the record of the meeting, "Hun Sen told his counterpart that the

KR trial remains a hot issue and a political one, he is concerned that this matter

might divert attention away from the coming election. The International Tribunal

looks very complicated; it could become an issue of conflict between the super-powers,

since China continues to oppose the idea. Therefore if Ta Mok, Nuon Chea and Khieu

Samphan could disappear, it would be better. The USA wants them, but I feel that

those three leaders will never give themselves up under any condition. If they can

find refuge somewhere that no one can find them, it would the best solution."

Hun Sen then went on to ask about Khmer Rouge radio. He finished by asking, "Has

the United States submitted a list to the Thai Government?"

Chuan, a reformer and one of the few Thai leaders with no record of involvement with

the Khmer Rouge, replied. "Prime Minister Chuan Leekpai confirmed to Hun Sen

that the US has officially contacted Thailand regarding the KR even before the death

of Pol Pot, however they have not submitted any list of 'wanted' names. The Thai

PM informed Hun Sen that he had told the US that Pol Pot was not in Thailand, and

if Pol Pot had crossed the border, he would have been arrested under the illegal

entry law. PM Chuan told Hun Sen that he had never met any KR leaders, and he has

always promoted a clear policy vis-à-vis neighboring countries. Therefore

if Cambodia has any proof that any KR leaders, their radio station or antenna are

in Thailand, he asked that Hun Sen provide him with the proof and promises to take

action immediately. PM Chuan Leekpai also suggested to Hun Sen that he use his direct

telephone line to contact him for this matter."

Chuan already had a poor opinion of his counterpart. He was a genuine democrat who

fought against the use of violence and intimidation in Thai politics. According to

a senior Thai official, he was angry at Hun Sen's suggestion. "We were not sure

what this request really meant. Some thought that this was a veiled request to send

Khmer Rouge leaders into exile in China, but we had no reason to believe that China

would agree. Others understood this as a request to have these three killed, since

we certainly could not keep them for years in some secret prison in Thailand. Maybe

Hun Sen can do this kind of thing, but we can't. Thailand is a democracy."

Chuan then turned the tables on Hun Sen, implicitly reprimanding him for the July

1997 coup and reminding him that in a democracy power changes hands from time to

time. "PM Chuan also told Hun Sen that as for himself, he will not be Prime

Minister for life, that he is able to welcome Hun Sen today as PM thanks to the democratic

process ... He told Hun Sen that the world is watching closely at the Election process

in Cambodia and expects that the election would be a credible one. Then, Cambodia

would be in a better position to prepare herself to be a part of ASEAN ... "As

I have said, I am not Prime Minister for life, and I will take this opportunity to

promote peace and prosperity. It is so important for a country's history."

May 6, 1998 was apparently not the first time that Hun Sen had attempted to solve

the Khmer Rouge problem by asking Thailand to make its leaders disappear. According

to Prince Ranariddh and Thai officials, on June 21, 1997 Hun Sen asked Chuan's predecessor,

General Chavalit Yongchaiyudh, for the same favor.

Those who have followed attempts to create a tribunal for the Khmer Rouge will recognize

June 21, 1997 as an important date. It was on this day that the Cambodian government

first requested the UN to create a special tribunal for the Khmer Rouge. First Prime

Minister Ranariddh and Second Prime Minister Hun Sen sent a letter to UN Secretary-General

Kofi Annan requesting the UN to bring "to justice those persons responsible

for the genocide and/or cimes against humanity during the rule of the Khmer Rouge

from 1975-1979 ...

"We are aware of similar efforts to respond to the genocide and crimes against

humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be

given to Cambodia." The UN had set up international tribunals for both countries.

Ranariddh and Hun Sen were asking the UN to do the same for Cambodia.

But on the same day that Hun Sen was meeting with UN human rights envoy Thomas Hammarberg

to discuss the creation of a tribunal for the Khmer Rouge, he was also asking Thailand

to make this impossible. According to Ranariddh, "Hun Sen asked Prime Minister

Chavalit to allow Pol Pot, Ta Mok, Nuon Chea and Khieu Samphan to go into exile in

Thailand. Chavalit said he was favorably inclined to do this, but would have to discuss

this with his people in Thailand and that, if he did this, it would have to remain

secret." (Ranariddh told essentially the same story to his biographer, Harish

Mehta, who published it, seemingly unnoticed, on page 123 of "The Warrior Prince.")

Unlike Chuan, Chavalit had a very close relationship with both the Khmer Rouge and

Hun Sen. While in the army, Chavalit had been personally responsible for acting as

an intermediary between China, the Khmer Rouge's chief supplier of arms and finance,

and the Khmer Rouge leadership. He created and controlled the two main Thai army

units responsible for dealing with the Khmer Rouge. If anyone could deliver, it was

Chavalit.

Thai officials close to Chavalit confirm Ranariddh's account. "Chavalit agreed,

but Chavalit is a person who can't say no to anyone," says an aide. "But

he never seriously considered the idea. There was no chance of keeping such an arrangement

secret and by May 1998 we could not have arrested Khmer Rouge leaders even if we

wanted to. We would have had to enter Cambodian territory to arrest them. We had

no reason to do this."

Chavalit and Thailand had long since concluded that Thailand had nothing to fear

from an international trial of the Khmer Rouge. Apparently Hun Sen felt differently.

Officially, the negotiations between the UN and Cambodia to create a mixed tribunal

for the Khmer Rouge broke down last February over a series of disagreements about

technical points.

In reality, the UN seems to have decided that the man they were dealing with was

not acting in good faith.

Judging by Hun Sen's dealings with Chuan and Chavalit, they were right. There can

be no greater evidence of Hun Sen's lack of good faith than his attempts to make

the Khmer Rouge disappear, either literally or figuratively, instead of standing

trial for crimes that Hun Sen himself has repeatedly compared to those of the Nazis.

Until last February, for four years Hun Sen led the UN on a roller-coaster ride that

seemed to have no end. He insisted that he wanted trials, but then announced that

he wanted to "bury the past" - hence his Christmas Day meeting in 1998

with Nuon Chea and Khieu Samphan in which he treated them as national heroes instead

of war criminals. He said that no Khmer Rouge leaders would be protected from a tribunal,

but then proclaimed that Ieng Sary could not be arrested. He claimed that he wanted

trials to meet international standards, but then refused to include necessary provisions

in the law for independent judges, prosecutors or defense counsel. He repeatedly

threatened to pull out of negotiations, but then returned after extracting concessions

from the UN or American intermediaries such as Senator John Kerry. It was non-stop

brinksmanship.

Perhaps the most obvious sign of obstruction was his frequent assertion that civil

war would return if Khmer Rouge leaders were arrested. Senior officials in the army

and CPP consistently rejected this, saying it was impossible for the Khmer Rouge

to regroup and fight. The Khmer Rouge have long been dead, except, apparently, when

it has been convenient to resurrect them for political purposes.

In the end, it seems that Hun Sen's strategy was to play for time (successful until

the present), perhaps hoping that Khmer Rouge leaders would die of old age before

they could be brought to trial. One, Ke Pauk, has already died. The almost year-long

delay in final passage of the domestic legislation necessary to create a tribunal

appears to have been part of this strategy.

It now appears that Hun Sen does not want "trials" of the Khmer Rouge,

at least not in the sense that the term is understood by those familiar with independent

and impartial tribunals. After so many years of struggle, he is now the undisputed

leader of Cambodia. China, his new friend, is vehemently opposed to trials that are

not politically controlled. Apparently he has judged that real trials, with all their

unpredictability and messiness, are not in his political interests.

Why, then, did Hun Sen sign the original request to the UN on June 21, 1997? The

most likely answer is that Hun Sen saw a tribunal as a weapon against his political

enemies. On June 21, 1997, he was probably hedging his bets. His first choice would

have been for Thailand to make the Khmer Rouge disappear, hence his request to Chavalit.

If this was not possible, he would use a UN-sponsored court as one of many weapons

to destroy the Khmer Rouge as a political movement. And there was danger if he did

not sign. Ranariddh was enthusiastic about capturing Pol Pot and handing him over

to the international community. If Ranariddh accomplished this over Hun Sen's objections,

Ranariddh would have been a sure bet to win the next election. He would have been

the toast of the international community.

Instead, two weeks later Ranariddh was in exile, his party smashed, his political

career in tatters.

Led by Japan, the United States, France and Australia, the UN is once again coming

under pressure to conclude an agreement with Hun Sen to create a "mixed tribunal"

for the Khmer Rouge. Japan is preparing a resolution for October's General Assembly

meeting that would either require or strongly urge Kofi Annan to resume negotiations

with the Cambodian government. Unless there are major modifications to the so-called

"supermajority" formula to insulate the process from political manipulation,

or a daring sign of good faith by Hun Sen, this would be a mistake.

Good faith is the central issue in any further efforts to establish a tribunal. By

agreeing to a majority of Cambodian judges and giving up on the demand for an independent

prosecutor, the UN has already ceded control of the process to the Cambodian political

system. If a mixed tribunal as previously envisioned is created, the UN will have

no way of policing Hun Sen's interventions with the tribunal's judges, prosecutors

and defense counsel. The UN is painfully aware that no Cambodian judge or prosecutor

can reach a verdict or file an indictment without the prior approval of Hun Sen.

We now know of Hun Sen's interventions with Thailand in June 1997 and May 1998. There

is no way of knowing how many other deals he has discussed with other countries.

Many of the states that have offered to provide the judges who are supposed to act

as a bulwark against attempts to interfere with the integrity of the trial process

have shown themselves quite willing in the past to make private deals with the Cambodian

government (such as China, which has a strong interest in the outcome of any trials

and has expressed a willingness to provide a judge to a mixed tribunal).

Instead of pressuring the UN to make further concessions, it is time for Japan, the

United States, France and Australia to tell Hun Sen to demonstrate that he is serious.

The best way to do this would be for him to allow the Cambodian courts to use Cambodian

law to investigate, indict and arrest all Khmer Rouge leaders against whom a prima

facie case currently exists. At the very least, this list would appear to include

Nuon Chea, Ieng Sary and Khieu Samphan.

If Hun Sen really wants justice for his people, he will move immediately to ensure

that these three architects of Cambodian misery become acquainted with the inside

of a prison cell. This would be the kind of tangible sign of good faith that might

make skeptics believe that Hun Sen is finally serious about bringing closure to his

country's festering nightmare. Only then could the UN be confident that its participation

in the tribunal might help Cambodians discover how this monstrous period came to

pass, and why.

- Brad Adams worked as a human rights lawyer in Cambodia from 1993-98. He is now

working on a book on Cambodia.

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