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Logo of Phnom Penh Post newspaper Phnom Penh Post - Go-it-alone tribunal seeks foreign gloss

Go-it-alone tribunal seeks foreign gloss

THE Government has started to approach foreign legal experts for assistance in the

drafting of a law to try former Khmer Rouge leaders and for help with a locally run

trial.

One of the experts is a French professor of public law, Claude Gour, who also worked

on the draft proposal that Sok An's group presented to Zacklin's UN delegation in

late August.

Gour is associated with the University of Social Sciences in Toulouse, France, and

was head of the institution from 1989 till 1994.

A more controversial candidate is former US Attorney-General Ramsey Clarke. A western

source close to the KR/UN negotiations said that Clarke had been approached by the

Cambodian Government to help out.

Clarke was appointed Attorney-General by President Lyndon Johnson in 1967 and now

runs a law practice in New York.

He has been involved in a number of left-leaning causes during the past 20 years.

It is also understood he has been sympathetic to suggestions that US Government officials

be held responsible for the secret bombing of Cambodia.

He recently counseled a Rwandan in the US who risked being extradited for prosecution

in Rwanda, and has been involved in several high-profile cases emphasizing the culpability

and double standards of the US in crimes against humanity.

A couple of months ago, Clarke wrote a brief to the Cambodian government, arguing

that the international tribunals for Yugoslavia and Rwanda are illegal and have no

authority.

On Wednesday, Cabinet Minister Sok An declined to give any further information as

to which experts would be assisting the task force. He said that he was expecting

"prominent experts from several countries" and that a complete list would

be published soon.

Meanwhile, the government's task force continues to work on a second draft law for

the tribunal. Sok An predicts the next proposal will be ready within one or two weeks.

A Khmer Rouge trial under the auspices of the United Nations seemed increasingly

unlikely when Prime Minister Hun Sen and Sok An returned to Phnom Penh last week

after top-level negotiations in New York.

During his visit there, Hun Sen delivered a sharp memo to Secretary-General Kofi

Annan, outlining three choices for the UN:

  1. Provide legal advice to a process within the Cambodian judiciary and appoint

    a minority of judges and prosecutors;

  2. Provide legal advice without taking part in the court proceedings;
  3. End UN involvement.

Of the three, only the last seems an acceptable option for the United Nations.

"There is no way the UN can compromise on rendering justice; what [the Secretary-General

for Legal Affairs Ralph] Zacklin's team came up with in August was pretty much the

bottom line," said one long-term observer, referring to a UN proposal for a

special mixed Cambodian-international tribunal, where the chief prosecutor and a

majority of judges would be appointed by Kofi Annan.

The Cambodian government rejected the proposal. And at a press conference immediately

after arriving at Pochentong Airport, Sok An conveyed the impression that the Cambodian

government is now ready to go through with preparations for trial on its own.

He didn't explicitly rule out further negotiations, but stated that from now on the

task force will keep the UN informed on its progress. Sok An also said that the draft

law will proceed through the legislative channels - Council of Ministers, National

Assembly, Senate, Constitutional Council and King - as soon as it is ready.

Nevertheless, several well-informed sources believe that there is still plenty of

opportunity for continued talks between the two parties, and that Sok An's remarks

should be regarded as negotiating tactics.

"There is still a fair way to go on the negotiations. I don't think we have

reached the point where there will be no more talks," said one western diplomat

this week.

The question remains how much control over the proceedings the Cambodian government

is willing to give up and how many concessions on behalf of the UN it will take to

reach a compromise.

Cambodia scholars Steve Heder and Craig Etcheson are already making comparisons between

the People's Revolutionary Tribunal in 1979 and a future Cambodian-controlled Khmer

Rouge trial.

"Hun Sen is continuing to follow a slightly modified version of the script laid

down by the Vietnamese for the 1979 trial of Pol Pot and Ieng Sary, who the Vietnamese

had decided in 1978 to blame for all the ills of Democratic Kampuchea," Heder

commented by email last week.

While Hun Sen seems determined to go ahead with the Khmer Rouge process with or without

the UN, one previous demand may now be up for negotiation: a government source suggested

to the Post that an international chief prosecutor would be acceptable to the government.

However, an advisor to Hun Sen and member of the task force, Om Yentieng, rejected

the idea:

"A foreign prosecutor? This is a Cambodian affair. Do you think the Cambodians

would accept a foreign king?" he asked.

Even if accepting an international prosecutor is stretching Cambodian goodwill too

far, some observers point out that the government has already shown a remarkable

openness in this matter.

Many CPP members have had bad experiences in dealing with the UN in the past - a

tendency that Hun Sen mentioned in his speech to the General Assembly in New York.

And especially in connection with the Khmer Rouge, a strong feeling of being let

down and betrayed by the UN prevails.

"They look back at who fed the Khmer Rouge army in the early 1980s, who controlled

the Cambodian seat at the UN until the early 1990s, and they remember being forced

to accept the Khmer Rouge as 'equal partners' in the Paris Peace Agreement,"

says Craig Etcheson.

"As a result, their blood boils whenever the UN and the Khmer Rouge are mentioned

in the same paragraph."

A Cambodian political analyst puts it this way:

"From a standpoint of CPP's political culture, it has been a huge effort for

them to go as far as they have. In that context they have shown a large amount of

willingness. For CPP this is also a matter of their own political survival."

But if the political willingness doesn't stretch far enough to reach a compromise

with the UN, the government has no misgivings about conducting a tribunal on its

own.

According to analysts, Hun Sen appears to have decided that control over the important

parts of the proceedings is more important than international recognition for the

process, and that the possible consequences do not pose an unsustainable threat.

Although prominent, foreign expertise may not be enough to match the international

commun-ity's demands for fairness and credibility, which might lead to sanctions

from some western countries.

"The government risks a lot in terms of international credibility. While donors

will be reluctant to say so openly, some of them will nevertheless aim for gradual

reduction in their assistance or increasingly channel it through NGOs. It is already

happening," said a longtime observer.

"Competition for aid has never been fiercer and the trend is in favor of countries

where governance is taken seriously and aid has a demonstrably positive effect,"

the observer added, and also pointed to longer-term foreign investment that might

not materialize as a result of a questionable Khmer Rouge tribunal.

Lao Mong Hay of the Khmer Institute for Democracy also sees loss of credibility as

a consequence.

"I fear that if I or other Cambodians go abroad we will be met with the notion

that one cannot trust Cambodians", he says.

"The current situation is only a reflection of the government's real intention,

which is to not hold a trial at all. If Hun Sen had told Kofi Annan this from the

beginning, there would have been no unnecessary waste of human or financial resources."

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