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Logo of Phnom Penh Post newspaper Phnom Penh Post - Devil's advocate

Devil's advocate

The ideal model would have been an international ad hoc tribunal in Cambodia

with judges, prosecutors and other staff appointed through a credible

international mechanism. This could have been designed through an enabling law

in the Cambodian parliament which would have invited the UN to come for this

purpose.

It would have been possible to include some Cambodian jurists in the process,

including as judge or prosecutor, but these would be appointed on merit and act

as international appointees. Such an arrangement would have several of the

advantages hoped for in the "mixed" tribunal approach. In the end, this model

was not politically possible. But for the UN to agree to participate in a

"mixed" tribunal, there had to be guarantees for the integrity of the process.

This is fundamentally what the discussions had been all about.

Such guarantees for international standards require watertight protection

against the risk of direct or indirect political pressure. Of course, the

Cambodian participants are more vulnerable than the international appointees. It

is also a question of demonstrating to the Cambodian public that genuine justice

is being carried out. In view of the cynicism in Cambodia about the justice

system, some really clear signs of change are necessary.

That is why it would be important also for the Cambodian judges to be

endorsed through an international mechanism and that there be no limits to

recruit them outside the list of now practising judges. The pool of possible

candidates needs to be widened, also considering that so many Cambodians have a

personal stake in any process against the Khmer Rouge.

The "super majority" notion is clearly a compromise and not without problems.

It carries an implicit notion of there being two categories of judges - which

would be an unfortunate perception even in more normal circumstances. Such a

notion of two "sides" seems to be based on a lack of trust which ought to be

handled more directly. Also, the model could in real life lead to stalemate

situations in which there would be a majority, but not a large enough one for a

decision.

If international standards indeed are to be met, neither the Prime Minister

nor any other politician in Cambodia should influence the trial - or be seen to

do so. The tribunal should not be an instrument for political purposes. The main

problem with the final compromise is that it does not offer full guarantees on

this crucial aspect; there is a widespread concern in Cambodia that Prime

Minister Hun Sen will be able to influence the proceedings heavily.

Hun Sen once said, with apparent pride, that he had defeated the Khmer Rouge

first militarily, then politically and now would like to seal these achievements

through a trial. On other occasions he talked about the tribunal as a means of

crushing the movement; but when that happened, that there was no longer a need

for the trial (except for one against Ta Mok, who never surrendered).

His strong reactions against the proposal of a tribunal outside Cambodia

appeared to have several roots. One was that it might have give the impression

that the government was unable or unwilling to have a trial organised at home.

Though he admitted the inadequacy of the Cambodian judicial system in the June

1997 letter, this has not been an easy recognition for him. And if there were to

be a trial he would definitely want to take credit for it.

This raises the question of the border line between the executive and

judicial authorities. A truly independent trial in such a fundamentally

important case would be a huge step in a land which has not yet moved from

previous notions or Royal or "socialist justice" to true independence of the

judiciary. The protracted discussions with the government, the executive branch,

on how to set up the trial may have perpetuated the impression in Cambodia of a

blurred line between judicial and political authorities. Prime Minister Hun Sen

himself sometimes stated that he stood outside the process while he in reality

dominated every bit of it and most often made no secret of that fact. His

repeated and contradictory statements on whether Ieng Sary should be prosecuted

or not is a flagrant example.

This, in turn, may have given some credence to

the strange notion that there is a contradiction between international standards

for a just trial and "national sovereignty". One of the most important Cambodian

statements in this whole discussion was the note King Sihanouk made in his

monthly bulletin that there is no such contradiction.

Strategy considerations

The strategy of the Prime Minister appeared to have been based on three

options: a) an agreement with the UN on a "mixed" tribunal, b) inviting some

governments (e.g. US, France, Russia, Japan and/or India) to co-operate directly

through sending judges, or c) inviting individual lawyers (e.g. US lawyer Ramsey

Clark) to take part in the process.

He clearly had mixed feelings about the UN option, partly based on his old

animosity towards the organisation. He therefore wanted to set limits for how

much he was ready to compromise with the UN and force it to say yes or no. If

the answer was no, he could blame the UN and at the same time try option b) or

c).

He was faced with UN legal experts who stated that the UN could only take

part in the process if there were clear guarantees for the international

standards on justice, fairness and due process. Very important was that the key

member states in the end decided to avoid going alone and to support the UN

discussions. This effectively blocked option b). It also became clear to the

government, I believe, that option c) would not be credible - in particular,

after a breakdown of talks with the UN.

Therefore, the real options for the government turned out to be an agreement

with the UN (which would require guarantees for the independence of the process)

or trying Ta Mok and Deuch and perhaps some more in an existing domestic court

without international participation. The latter alternative would meet all the

problems which had been identified in the discussion so far. Also, such a trial

would be thoroughly monitored by the Cambodian media and organisations as well

as by the international community - and its shortcomings exposed.

It has been argued that a less-than-ideal compromise between the UN and the

government on the tribunal might be corrected by the dynamics of the process

itself once started. One factor would be the personal influence of the

(hopefully) independent and competent foreigners involved, even if these were in

minority. These would also have the option of leaving the process if they became

dissatisfied and the awareness of this risk/probability might also function as a

protection against abuses. The scrutiny by the media and the NGO:s may also have

a positive influence. For the government to exert distorting pressure on the

tribunal might therefore, in reality, not be so easy.

There may be a grain of truth in this prediction, but this is no good reason

to accept an unsatisfactory model which might cause procedural infighting in the

tribunal and thereby weaken its moral stature. Also, it is important to realise

that the Cambodia tribunal may potentially be an example for the future in other

situations. Also for that reason it would have been important to build its

construction on principles, rather than on political compromises.

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