The United Nations is back in Phnom Penh to talk about the trial of the Khmer
Rouge. Lawyer and former UN human rights investigator, Brad Adams, looks at
the history of the negotiations to date and the compromises that have been made and
those that should not.
On February 8 United Nations Secretary-General Kofi Annan laid out the basic principles
for UN involvement in an international tribunal for the Khmer Rouge. These principles
- guarantees for the arrest and surrender of indictees, a ban on amnesties (before
trial) or pardons (after conviction) for persons accused of genocide or crimes against
humanity, an independent, international prosecutor and investigating judge, and a
majority of international judges appointed by the Secretary-General - are essential
for a credible judicial process to be undertaken to address some of the worst crimes
of the 20th century.
As there is a consensus that Cambodian judges and prosecutors lack the independence
and technical ability to carry out trials of genocide and crimes against humanity
(even the government has admitted the lack of independence of the judiciary in its
reports to the UN on civil and political rights), it would seem that these principles
would attract universal support. Cambodian human rights NGOs, the Cambodian Bar Association
and the Legislation Commission of the National Assembly have all endorsed these principles.
However, a number of objections have been raised by an odd, informal coalition including
Prime Minister Hun Sen, some Phnom Penh-based diplomats, and a group of expatriate
advisors and commentators. With the arrival of the UN for "the last and decisive
round of negotiations," these objections are worth considering in detail.
Hun Sen has raised two main objections to the creation of a genuinely independent
tribunal. The first is the threat of renewed war if Khmer Rouge leaders are arrested
and put on trial. Of course, to the extent that there is a real threat this applies
whether the UN is involved or not. Yet there is now a consensus across party lines
and among diplomats that there is no risk that the prosecution of Khmer Rouge leaders
could lead to the return of armed conflict, as the Khmer Rouge has now collapsed
as a fighting force. It would now be impossible to remobilize the population to take
up arms and fight.
In fact, as government officials freely admit, the real powers in former Khmer Rouge
areas such as Pailin, Malai and Anlung Veng are now so invested in a peaceful future
- as the result of newfound wealth and freedoms, particularly freedom of movement,
both inside and outside of the country - that the prospect of renewed conflict is
unthinkable. To take one example, the Mayor of Pailin, Y Chhean, has now sent his
children to school in Singapore, something beyond the realm of possibility even three
years ago. He can now travel around Cambodia and the world without fear or inhibition.
He and his followers are unlikely to give this new life up for the old one of malaria,
landmines and hopelessness, simply to protect a handful of old men. It is interesting
to note that while fear of renewed fighting was Hun Sen's chief explanation for his
macabre Christmas 1998 embrace of Nuon Chea and Khieu Samphan, he rarely defends
his opposition to an international tribunal on this basis anymore.
Instead, the primary objection now proffered is the old and fading canard of "sovereignty."
While sovereignty is still the basic organizing principle of international relations,
it has long been misused as a defense of the indefensible - of genocide, extra-judicial
executions, torture, disappearances and other crimes committed by states against
their citizens. When human rights are involved, sovereignty has become the last refuge
of dictators and those unable to articulate a more principled defense of their actions.
Countries such as China and Vietnam raise "non-interference in internal affairs"
every time their human rights records are criticized. Even democracies such as Australia
occasionally use this rhetoric, as Prime Minister John Howard recently did after
the UN criticized its law on mandatory sentencing. US Senator Jesse Helms trots out
this argument every time he objects to an international treaty that would in any
way limit American power to do what it wants, when it wants. On the grounds that
only US courts should be able to try American soldiers accused of war crimes, Helms
and the Pentagon convinced President Clinton to side with only six other nations
and oppose the 1998 treaty establishing the International Criminal Court - a court
which would have jurisdiction over future genocidistes like the Khmer Rouge.
As a legal matter Cambodia has long since stopped hiding behind sovereignty to cut
off discussions related to human rights and the administration of justice. It has
ratified UN human rights treaties and the Genocide Convention. It regularly reports
to UN bodies on human rights, women's and children's rights, and the rights of ethnic
minorities. And it has agreed to a Special Representative for Human Rights who makes
semi-annual reports to the UN on the situation of human rights in Cambodia. As a
result, Cambodia is now a part of the international legal system - a reflection of
the legitimacy that Hun Sen and the CPP craved for so many years. This comes with
rights and obligations. One emerging responsibility is that when a country's judicial
system is incapable of conducting fair and independent trials of the most serious
international crimes, such as genocide and crimes against humanity, it is the responsibility
of that state to allow the international community to do so.
It is therefore ironic, to say the least, that it should be Hun Sen who argues that
the rest of the world has no business being involved in the trial of the Khmer Rouge.
He, more than most, should be aware that those who now wave the banner of sovereignty
are essentially arguing that Vietnam had no right enter Cambodia in 1979 and save
Cambodians from the Khmer Rouge, since Pol Pot certainly did not invite the Vietnamese
in. The CPP endured over a decade of international isolation defending the basic
premise that the survival of people trumped abstractions like sovereignty. Put simply,
the debate about sovereignty comes down to a clear choice: states or people. Not
a tough call.
Though Hun Sen has attempted to turn this into a "Cambodia against the world"
issue, very few Cambodians are on his side. Even the large majority of CPP members
are in favor of a tribunal based on international standards - no surprise, given
the fact that they endured great hardships while fighting the Khmer Rouge after 1979
(though in the continuing climate of fear that permeates Cambodian politics none
are prepared to speak publicly against the position of the Prime Minister). In fact,
many CPP members are shocked and even furious that Hun Sen has now ceded the CPP's
main historical claim in pursuit of tactical and short-term political considerations.
Instead of putting pressure on the Cambodian government to comply with international
norms, some diplomats suggest that the UN should "compromise" with or "make
concessions" to the Cambodian government in the next round of negotiations.
Such an approach fundamentally misunderstands the purpose of UN involvement in this
process. Discussions on the creation of a tribunal are not the same as typical political
or diplomatic negotiations (such as those convened to form a government after an
election or to cut a trade deal), in which both sides are supposed to "give
and take." A tribunal is a judicial process, requiring the adherence to basic
principles, which means that the UN cannot "put all the issues on the table"
As Kofi Annan said in his briefing to the Security Council on February 29: "The
main concern of the United Nations is to ensure that the judicial system set up for
this purpose under Cambodian law does indeed reach international standards."
These standards should be non-negotiable. The UN simply cannot - and should not be
asked to - compromise on core principles. Otherwise, the future integrity of the
tribunal is likely to be undermined. The victims in such circumstances would not
be the UN or the Cambodian government, but the people of Cambodia.
While the UN is sometimes characterized as intransigent, thus far the UN has shown
a great deal of flexibility on two key issues: the composition of the tribunal and
the location. The UN "Group of Experts" concluded that the political environment
in Cambodia was such that there should be a fully international tribunal located
outside of Cambodia, but the Cambodian government demurred. The UN responded by agreeing
to a "mixed tribunal," located in Phnom Penh. In international justice
such a decision was unprecedented - even revolutionary - and reflected an attempt
to meet the government's concerns without compromising the integrity of the tribunal.
While the UN has shown flexibility, the Cambodian government - which in June 1997
requested the UN to organize an international tribunal "similar" to the
ones "in Rwanda and the Former Yugoslavia" - has not. Instead, it has engaged
in a series of tactical but essentially empty gestures. For instance, the offer of
co-prosecutors, in which the international prosecutor would have no independent power
to indict, was essentially a meaningless amendment, since it would leave the most
important aspect of the tribunal - deciding who to investigate and charge - in the
hands of prosecutors who take orders from the Cambodian political authorities.
It is also important to remember that any decision by the UN in Cambodia will have
significant consequences internationally. For many years the UN and others have struggled
to create an international legal system in which genocide, war crimes and crimes
against humanity would no longer go unpunished. The ad hoc tribunals for Rwanda and
Former Yugoslavia were milestones in this effort. More important was the agreement
in 1998 to establish the International Criminal Court (ICC), which was signed by
over 100 nations. The ICC sets strict standards on the same issues being debated
in Cambodia, namely complete operational independence of judges and prosecutors and
an international agreement to arrest indicted suspects.
Many around the world are thus watching developments in Cambodia carefully, waiting
to see if a new, lower standard will now be established. The UN is acutely aware
that such a step may be a serious and perhaps fatal blow to the ICC and prevailing
international standards. One can easily imagine future demands for the "Cambodia
precedent" instead of the standard created by the ICC or the ad hoc tribunals.
Diplomats, particularly those representing countries with an abiding interest in
international justice, should be aware of this possibility. Short-term political
interests - such as illusory concerns about political stability in Cambodia - should
not be allowed to trump the much more important long-term interest in a genuine and
credible system of international justice.
Another, often-overlooked issue that reinforces the need for a completely independent
prosecutor is the need to gather enormous amounts of evidence in any future tribunal.
Many commentators have greatly overestimated the legal value of documentary "evidence"
left by the Khmer Rouge. While of great historical interest, most of these documents
will be of marginal use as the basis for a conviction of members of the Khmer Rouge.
In a court of law documents rarely speak for themselves. If offered alone and without
supporting witness testimony, good defense counsel will probably have little problem
in rebutting documentary evidence given problems such as authenticating signatures
or establishing the chain of custody of the documents.
Thus, the testimony of witnesses will be critical in gaining indictments and convictions.
This leads to three complications. First, tribunal investigators will need complete
freedom and substantial resources to interview witnesses throughout the country (those
alive may not be easy to find after all these years, or may be too afraid to talk).
If the prosecutor is not completely independent he or she will be prohibited from
even attempting to go into the field and gather evidence. In the Cambodian political
environment only foreigners will have the freedom (and perhaps the courage) to undertake
this effort, as traveling to rural villages to gather this kind of evidence is risky
business even in low profile cases for Cambodian investigators.
Second, the sad fact is that no Cambodian prosecutor has the professional qualifications
to conduct investigations of this kind (nor do the police). The painstaking process
of gathering evidence and interviewing witnesses are not yet part of the trial process
in Cambodia. Third, a long-term witness protection program for those brave enough
to testify is essential (including possible relocation to third countries). This
requires international control, since few if any Cambodians would trust the government
to provide for their long-term security or accept their assurances of confidentiality.
Without full operational independence, the result could be a lack of evidence to
indict or convict persons who appear to be some of the century's greatest criminals
- an outcome that would be deeply embarrassing for the UN and hurtful for the Cambodian
people. Determinations of innocence or guilt of Khmer Rouge leaders should only come
after serious and exhaustive investigations by a credible and independent prosecutor,
or the process will simply not be accepted in Cambodia. Not only is this important
for reasons of simple justice, it is crucial to the creation of an accurate historical
record of this period. A genuine trial process may be the last chance to hear from
people such as Ta Mok, Nuon Chea, Khieu Samphan and "Duch" and learn their
many secrets. In a sham trial they will be reading from a script.
One minor issue which should be clarified is the repeated criticisms of the UN by
the Prime Minister for giving Cambodia's UN seat to the Khmer Rouge in 1979 and thereafter.
Hun Sen has suggested that in any future tribunal Kurt Waldheim, Javier Perez de
Cuellar and Boutros Boutros-Ghali should be called to explain their actions in this
respect. This would be an attractive point if only it were true. In fact, this wholly
immoral and unprincipled decision was made by the member states, not the UN or its
various Secretary-Generals. For instance, in 1979 the Credentials Committee voted
6-3 (with the US in the majority) to give Cambodia's seat to the Khmer Rouge (Prince
Sihanouk had urged the seat to be left vacant). Later that year the General Assembly
voted 71-35-34 in favor of the Credential Committee's recommendation. This was repeated
in future years. The UN as an institution has no role in discussions of credentials.
If the Prime Minister has a complaint on this matter, he should address it to Beijing,
Paris and Washington.
The success of a tribunal for the Khmer Rouge will depend on a sound structure. In
a mixed tribunal any crack in the structure that allows for political manipulation
is likely to be exploited, since in practice Cambodian judges and prosecutors are
directly answerable to the executive branch. Yet some naively suggest that in a high
profile setting the government could not interfere in the process. This simply ignores
reality. There was no bigger stage than the 1993 UNTAC elections, which were subverted
by the losers through a fake secession movement and the threat of civil war. The
Cambodian government has staged a number of high profile sham trials in recent years,
including that of Prince Ranariddh after the July 1997 coup and former Foreign Minister
Prince Sirivudh in 1995. Hun Sen has run circles around the international community
since 1991 and there is no reason to expect a mixed tribunal located in Phnom Penh
to be any different if he decides it is in his interests to manipulate the process.
Once the UN and donors buy into the process, they will not walk away, no matter how
bad it smells.
Those interested in justice should remember that it is more important to get it right
than to simply make a deal for its own sake. If it is not possible for credible trials
to take place in the near future, these cases will not be forgotten. Victims have
long memories. One only has to look at the continuing prosecutions of Nazi war criminals
over 50 years later, and the recent efforts by European governments to extradite
the dictator General Augusto Pinochet for the slaughter in Chile after the 1973 coup.
(One of the most puzzling and disappointing aspects of the international response
to the possibility of a tribunal for the Khmer Rouge has been the silence of these
same governments. If France, Belgium, Spain and Switzerland have been so eager to
ensure justice for the killing of approximately 3,000 Chileans - by actively intervening
in the judicial process and offering to put the Generalissimo on trial - why do they
seem indifferent at best to the deaths of almost 2 million Cambodians? And why has
no government insisted on the immediate arrest of Nuon Chea, Khieu Samphan, Ke Pok
and Ieng Sary? It is simply immoral for the sponsors of the Cambodian Holocaust to
continue to live comfortably, travel freely, and to wander the streets of Cambodia
as free men. The Cambodian government could, and should, arrest these men tomorrow.)
While UN-bashing may be an enjoyable sport, it is time for those truly interested
in justice to support the principles Kofi Annan has articulated. This is the bottom
line, below which there can be no certainty that any trials will be genuine. Cambodians
have waited long enough for justice and the truth about this terrible period. It
is time for those blocking a legitimate trial process, or acting as apologists for
those who do so, to answer a simple question: "Are you on the side of the Khmer
Rouge, or the victims?" History will be a harsh judge.