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Logo of Phnom Penh Post newspaper Phnom Penh Post - Govt to wrap up tight trial law

Govt to wrap up tight trial law

The newly finished draft law for a Khmer Rouge tribunal looks set to ensure that

the Cambodian government retains tight control over the


Though the draft law includes such elements as the

US-proposed supermajority and co-prosecution, it renders little influence to any

foreign participants and even less to the UN. This makes it doubtful that the

world body will be inclined to take part in the tribunal, which raises the

question of who will then finance the process.

The proposal that is

expected to be approved by the Council of Ministers today incorporates many

elements from previous UN-proposals and a US-brokered compromise from


However, a certain number of 'safety valves' ensure that nobody

will be prosecuted or convicted without the Cambodian government wanting it. As

one human rights lawyer pointed out, the main concern in connection with a KR

tribunal is not that innocent people are unduly convicted, but that guilty

perpetrators are not judged.

Prime Minister Hun Sen recently hinted that

former top KR leader Ieng Sary will not be tried, and earlier this week he

stated that the tribunal will only prosecute four or five suspects.


the main points of conflict between the government and the UN has earlier been

the nationality of the tribunal prosecutor and the ratio of foreign and

Cambodian judges.

In the current draft law a majority of Cambodian and a

minority of foreign judges rule by supermajority. This means that a suspect

cannot be convicted unless at least one foreign judge agrees.

But it also

means that the foreign judges cannot make a conviction on their own. They need

the consent of two of their Cambodian counterparts. If supermajority for a

conviction is not accomplished, the suspect is automatically


Likewise, the proposed co-prosecution dictates that both the

Cambodian and the foreign prosecutor have to recommend prosecution. If one of

them does not agree, no charges can be pressed.

The appointment procedure

of foreign judges and prosecutor leaves minimal influence for the UN. The

secretary-general can recommend candidates after consulting with the Cambodian

government. But the final selection is in the hands of the Cambodian Supreme

Council of Magistracy.

The UN proposal from August states that tribunal

judges must not be affiliated with any Cambodian political party. This is left

out in the current draft law.

While judges and prosecutors are the main

tools for controlling the tribunal, other elements reinforce the government's

grip on the process.

One example is the Office of Administration that

assigns personnel for the judges and the prosecutors. The Director of the Office

and all staff will be appointed by the Cambodian government alone.


left out in the draft law is an article from the UN proposal that allows

suspects already prosecuted at a Cambodian court to be tried again at the

tribunal. This may be explicitly aimed at Sary who was convicted at a trial in

1979 and later amnestied.

The UN brokered compromise suggested close UN

monitoring of the tribunal. This is not mentioned in the draft


Finally, the last article of the draft law makes it possible to

proceed without any foreign participants in the court room. "In case of

abstinences of foreign judges or co-prosecutor with any reason ... the

[tribunal] shall be filled by Cambodian judges or co-prosecutors," it


According to analysts and observers, all these factors make it

unlikely that the UN will wish to be involved in the tribunal.


Cambodian government has made an effort to meet some of the concerns of the

international community. But this is still insufficient to warrant the support

of the international community," says one Western diplomat.

And the fact

that the UN was only given less than four days to respond to the draft law does

not facilitate an understanding.

"A few days is clearly not enough for

the UN to express a solid opinion. The draft is not very specific, particularly

on important procedural issues and issues of substance. On many points further

clarifications will be required. Such important issues cannot be dealt with on a

take-it-or-leave-it basis," points out the diplomat.

However, the draft

law relies solely on financing from a trust fund set up by the UN

secretary-general. If the UN declines to participate, Cambodia will have to seek

funding from its own coffers or - more likely - from foreign


The French government has long since vowed to provide

technical assistance. But according to an embassy official, France is still

waiting to see the final working document for the tribunal before they commit to

any other contributions.

While the US brokered the compromise tribunal

proposal in October, India and Russia sent legal experts to provide advice in

writing up the current draft law. The draft law does state that the proceedings

at the tribunal will be translated into English, French and Russian.


contacted by the Post, the Russian embassy declined to comment.


approval by the Council of Ministers, the draft law will be submitted to the

National Assembly and the Senate. Though both parliamentarians and senators

predict heated debates about the law, analyst Dr Lao Mong Hay of the Khmer

Institute of Democracy expects that it will pass smoothly.

"It is

doubtful that we will see a lot of amendments in the National Assembly or the

Senate. A lot of debate will create a lot of controversy and I don't think the

government wants more controversy in this case," says Mong Hay.


criticizes the secrecy that has surrounded the drafting of the law.


whole process has been tightly controlled. It has been confined to a limited

group of people and not many have known what was happening. But an important

matter like the KR tribunal should be put out to a bigger audience. Cambodia has

a strong body of opinion who should have had a say in this," says Mong Hay.



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