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Logo of Phnom Penh Post newspaper Phnom Penh Post - No Tipping Point:

No Tipping Point:

There have been murmurings recently of potential collapse due to the withdrawal by

international judges and other senior officials from the Extraordinary Chambers in

the Courts of Cambodia (informally known as the Khmer Rouge Tribunal, or KRT), as

a result of the accumulating discontent of political interference since the KRT commenced

in July 2006. According to many KRT watchers, whether foreign judges will pull out

is contingent on the outcome of the Rules Committee currently meeting to hammer out

the long-overdue Internal Rules, a necessary precedent before any senior leader or

those most responsible can be called to the dock.

Article 28 of the Agreement between the United Nations (UN) and the Khmer Government

reserves the right for the UN to withdraw cooperation should the Government "change

the structure or organization of the Extraordinary Chambers or otherwise cause them

to function in a manner that does not conform with the terms of the present Agreement..."

This provision looks good on paper but is purely theoretical, for the UN will never

reach the point where it would "tip" to withdraw from the KRT. A UN judge

(or even several of them) pulling out is different from the UN pulling out.

Content image - Phnom Penh Post

The Tipping Point

According to Malcolm Gladwell, the tipping point is that "magic moment"

of critical mass when ideas, trends and social behaviors cross a threshold, tip and

spread like an epidemic. It is when change happens not gradually but in one dramatic

moment, and creates a geometric progression whereby the effect seems far out of proportion

to the cause.

Here, the UN does not have a tipping point in its relationship with the Government,

or it has such an extremely high threshold that it is practically nonexistent. In

this regard, Article 28 is only a theoretical provision and not a practical possibility.

The UN will not invoke its right to withdraw from the KRT for several reasons.

Monolithic RGC vs UN of Varying, Conflicting Interests

First, the Government has a monolithic, consolidated voice, whereas the "United

Nations" comprises a myriad of voices, actors and interests, contradicting and


In this regard, who or what is the UN? They are judges, prosecutors and senior officials

from Japan, Canada, France, Britain, New Zealand, etc. Each has their own individual

tipping point of when enough is enough. Each will weigh the risk to their established

reputation, employment needs and financial security, and moral and ethical position.

The UN is also the donors to the KRT - Japan, Australia, Germany, Britain, Canada,

France, inter alia. The tipping point for these donors will be higher than the individual

judges, prosecutors and officials, but again, the tipping point is different for


The UN is also the bureaucracy composed of many personalities and sentiments in the

New York headquarters, influenced not only by the member states' conflicting interests

and goals but also informed by the different civil society organizations, all again

with different thresholds of when they think the UN should tip.

Let's assume a foreign judge or several UN officials do decide to leave the KRT.

Will this act, even of many officials and dramatic, make the UN tip and withdraw?

The answer is highly unlikely because the UN will never be afforded that "magic

moment" of having all the varying interests of the "United Nations"

reach a critical mass, when all the ideas and sentiments of the varying and disparate

actors fused to cross the threshold at the same time, tip and lead to UN withdrawal.

Rumor has it that foreign judges and senior officials have an agreement that if one

should withdraw, they all would withdraw together at once. A very noble effort, but

this threshold will be difficult to reach in reality.

UN Judges, Prosecutors not Political Strategists

Second, the UN judges are not politicians and strategists; they are only that: judges,

brilliant, stellar, full of integrity, I am certain. However, they have been dropped

into the KRT, established within a socio-political context whereby they have little

control or influence. They may be wordsmiths but they are circumscribed by the narrow

legal process; they will not be able to respond in kind to the adept (and often amusing)

political spin of the Government.

A More Confident, Sophisticated Government

Third, the Government may be composed of many of the same individuals as 15 years

ago, but it is no longer of the same quality; this current Government is more sophisticated,

more confident, more versed in pushing its limits and conceding just enough to appease

the international community before it pushes its limits again. This Government is

well-traveled, well-financed, fluent in the international language and culture; it

has children with JDs and PhDs from the best Western schools, and foreign consultants

to make their bidding.

KRT Foremost a Court of Public Opinion

Last, the KRT is first and foremost a court of public opinion. The UN has already

tried pulling out of negotiation and lost the PR/political game when less was at

risk. Now, the momentum is for a trial. US$56 million is at stake. Other hundreds

of thousands of dollars have been committed to outreach work, with the understanding

that there be a trial. Consequently, should the UN withdraw, it will again lose the

PR game in relation to the Government. Hence, sadly, Article 28 is solely theoretical

and will not be taken as a serious leveraging point of the UN. I pray to be wrong.

Theary C Seng

CSD Executive Director

•The Voice of Justice column is a regular feature of the Phnom Penh Post. Both the

column and the logo are expressions of the Center for Social Development (CSD) which

bears full responsibility for the opinions expressed. The CSD Voice of Justice logo

depicts a Cambodian figure pushing aside the black curtains of a repressive past,

as s/he yearns to enter a world of freedom of expression and democracy, represented

by the blue of the inner circle. The scales of justice above the figure show the

supremacy of law, and are in gold, which according to Cambodian mythology stands

for strength, rooted in the earth. The Constitution is placed in front of the figure

to represent the protection it affords. The logo is encircled in pale blue to symbolize

peace, while the two golden naga motifs, which appear on the CSD logo, identify the

Voice of Justice as a program of CSD.



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