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Logo of Phnom Penh Post newspaper Phnom Penh Post - Sierra Leone fiasco slows KR trial deal

Sierra Leone fiasco slows KR trial deal

WITH the United Nations and the Cambodian government finally in agreement over

the shape of a future Khmer Rouge tribunal, events in Sierra Leone seem to have

slowed down the process.

The government is awaiting written confirmation

from UN Secretary-General Kofi Annan that the UN accepts the trial compromise,

brokered by US Senator John Kerry earlier this month. But dealing with the

crisis in Sierra Leone, where UN peacekeepers have come under fire from rebel

forces, may have delayed the UN response.

However, a tribunal deal now

seems fairly safe. During his negotiations with Prime Minister Hun Sen, Kerry

secured a compromise on the last remaining major obstacle, namely the

prosecution issue. Kerry also presented the compromise to UN

Undersecretary-General Hans Corell, who reportedly received it


Next step after a written UN response will therefore be the

National Assembly's approval of the tribunal draft law. Whereas the government

can agree with the UN on the principles of the trial, it cannot sign a formal

agreement until the law is passed in parliament.

Observers have raised

doubts whether the parliamentarians will accept the current tribunal proposal.

Some fear that Hun Sen will try to influence Assembly members to amend the law

according to his own wishes, thus disclaiming responsibility for a final

tribunal law that deviates from the agreement with the UN.

At the end of

his visit, Kerry said if the National Assembly doesn't adhere to the agreed

framework, UN participation in the tribunal could still be at stake.


Sen initially promised to have legislation ready for UN approval by June 15, but

officials recently predicted that the National Assembly debate was not likely to

begin before that.

One issue that may be changed during the debate and

that the UN reportedly also wants to have a second look at is the definition of

who the tribunal should target.

Article 1 of the current draft law reads

that the purpose is to "bring to trial senior leaders of Democratic Kampuchea

and those who were responsible for serious crimes and serious violations ...

which were committed during the period from April 17, 1975, to January 6, 1979".

Some, however, feel that this definition is too loose and will be difficult to

work with.

Director Youk Chhang of the Documentation Center of Cambodia

(DC Cam) recently suggested a re-phrase of the text to define those eligible for

prosecution as leaders of the Democratic Kampuchea's Central and Standing

Committees 1975-1979. The proposal has sparked debate among scholars as to who

were members of the two committees and when the committees actually existed (see

letter page 14).

The question of who should be targeted by the tribunal

remains sensitive, due to amnesty deals the government has struck with former KR

leaders during the past years. Also, several government members have a past in

the Khmer Rouge.


Main elements of the current

UN-Cambodian agreement on a KR tribunal:

  • Competence: Senior leaders of Democratic Kampuchea and those responsible for

    crimes and serious violations committed between April 17 1975 and January 6


  • Crimes/charges: Genocide, crimes against humanity, war crimes, destruction

    of cultural property, crimes against internationally protected persons.

  • Composition: A three-tiered system with a trials court, an appeals court and

    a supreme court.

  • Judges: Five judges in the trials court, of which three are Cambodian and

    two are foreign. Seven judges in the appeals court, of which four are Cambodian

    and three are foreign. Nine judges in the surpreme court, of which five are

    Cambodian and four are foreign.

Cambodian judges are appointed by the Surpreme Council of Magistracy. UN

Secretary-General Kofi Annan can object to appointments. Foreign judges are

selected by Annan and formally appointed by the Surpreme Council of


Judges rule by supermajority.

  • Prosecutors: Co-prosecution with one Cambodian prosecutor and one foreign

    prosecutor who indict unanimously. In case of disagreements, a 'review board' of

    five judges (three Cambodian and two foreign) decides whether a suspect should

    be indicted.

  • Investigating judges: Co-investigating judges, one Cambodian and one


  • Penalties: Five years to life imprisonment.


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