THE United Nations has accepted provisions that can jeopardize the handing out of
fair and independent justice at a future mixed Cambodian/international Khmer Rouge
This is apparent in a copy of the Memorandum of Understanding (MoU) between the UN
and the Cambodian Government concerning the tribunal and a list of agreed changes
to the tribunal draft law, which has been obtained by the Post.
After months of UN-Cambodian negotiations about the establishment of a KR tribunal,
an agreement was finally hammered out during a number of July 5-7 meetings between
a UN delegation headed by Undersecretary-General Hans Corell and the Cambodian Government's
tribunal task force under the Minister of the Council of Ministers, Sok An.
The agreement is reflected in the MoU and the agreed list of changes to the Government's
first tribunal draft law from January.
But analysts and legal experts say that although the two documents provide for a
more credible tribunal than the existing draft law, it will still not live up to
international standards of justice.
Meanwhile, the further process to set up a tribunal has effectively been held up
by the secrecy surrounding the agreement between Corell and Sok An. The Legislative
Commission of the National Assembly is currently reviewing the existing tribunal
draft law before it will go to debate on the Assembly floor.
But the commission has not been allowed to see the MoU or the list of changes, which
substantially alters the contents of the January draft law.
"We are working in the dark; we cannot work on the draft law without knowing
the agreement between the Government and the UN," says Commission Chairman Mohn
Sophan (Funcinpec). "I have asked to see these documents, but I cannot force
the Government to come to the National Assembly."
The MoU and the list of draft law changes add new elements to the existing tribunal
setup, such as a pretrial chamber that will decide on disagreements between the coprosecutors
or co-investigating judges.
The documents also contain extended provisions for the defense and a clause stating
that previously granted amnesties shall not be a bar to prosecution at the tribunal.
This is directly related to former KR foreign minister Ieng Sary, who received a
royal pardon in 1996 after defecting to the Government.
However, analysts say that this may not be enough to create a credible tribunal.
"The draft law lacks one profoundly important ingredient: international standards,"
says genocide researcher Craig Etcheson.
In New York the "mixed" nature of the KR tribunal has long been known as
the "Cambodia Model" - a model to be replicated in other countries, such
as Sierra Leone, where the UN is working to set up a war crimes tribunal in cooperation
with the Freetown government.
But Etcheson and others point out that compared to the Sierra Leone version, the
KR tribunal has a number of shortcomings, not least in terms of international presence
For instance the Sierra Leone tribunal will have a majority of international judges
in all chambers, while the KR tribunal has a majority of Cambodian judges, who rule
by supermajority. Also, the chief prosecutor in Sierra Leone will be international
with a deputy from Sierra Leone. At the KR tribunal, one Cambodian and one international
prosecutor have to work in unanimity - the so-called coprosecution.
Precisely the supermajority causes concern among the experts. Both the MoU and the
draft law state that a decision shall require the affirmative vote of a supermajority
of judges - that is four out of five judges in the Trial Chamber, five out of seven
in the Appeals Chamber and six out of nine in the Supreme Court.
However, it does not clarify what will happen if a supermajority is not reached or
whether the judges vote on conviction or acquittal. Some would argue that a conviction
can only be reached if a supermajority votes for it. But that will give the Cambodian
side de facto control to acquit any suspect they don't want to see convicted, since
the minority of international judges cannot ensure a conviction on their own.
Likewise, neither document mentions whether the supermajority vote applies only to
decisions on the verdict or also on other matters.
"If the decision-making process applies to all decisions, including procedural
and evidential matters, the Cambodian judges can block anything and everything,"
says Cambodia scholar Steve Heder.
This will unavoidably affect the outcome of any trial.
"International judges will be placed in the untenable position of having to
convict or acquit based on an evidentiary record that may be skewed by politically
dictated prior rulings of their Cambodian colleagues," the Executive Director
of Human Rights Watch, Kenneth Roth, has stated.
The Chairman of the Cambodian Human Rights Action Committee (CHRAC), Thun Saray,
is concerned about the appointment procedure for Cambodian judges. Whereas the Cambodian
Supreme Council of the Magistracy will have a say in what UN-nominated judges will
appear on the panel, the UN has no influence on what Cambodian judges are appointed.
"It is important to secure a good selection of Cambodian judges," says
Saray. "Everybody acknowledges that the Cambodian justice system is vulnerable
to political pressure. That's why we have suggested that the UN Secretary-General
should appoint both international and Cambodian judges."
One element that causes a collective outcry is that the trial proceedings will be
based on existing Cambodian criminal procedures. Some of these procedures simply
don't exist, such as the procedure for appointing prosecutors.
Also, the existing criminal procedure code is considered weak and not up to international
Some provisions in the draft law allow the ability to seek "guidance" in
international procedural rules, but trial proceedings, including witness protection
and the rights of the accused, essentially rely on "existing procedures in force".
"This is a contradiction in terms," says Heder. "Following procedures
in force means the trial will neither be fair nor protect the rights of the accused.
The provision to seek guidance is only a weak attempt to inject international standards."
Protection of witnesses and experts is left entirely up to the Cambodian Government
with no UN guarantees for their continued safety. Detention and custody of defendants
will be in the hands of Cambodian police and security forces who have a long track
record of torture and mistreatment of suspects.
On top of that, the MoU and the proposed draft law have no mention of foreign defense
counsel. According to Cambodian law, foreign lawyers are not allowed to appear in
a Cambodian court.
KR experts also raise questions about the formulation of the draft law's Article
1, which outlines the scope of the tribunal. It reads as follows:
"The purpose of this law is to bring to trial senior leaders of Democratic Kampuchea
and those who were most responsible for crimes and serious violations of Cambodian
penal law, international humanitarian law and custom, and international conventions
recognized by Cambodia, that were committed during the period from 17 April 1975
to 6 January 1979."
Etcheson finds that the formulation has inherent problems.
"The Cambodian Government has never been able to define who is a Khmer Rouge
'leader', so how are they going to be able to determine who is a 'senior' leader?"
says Etcheson. "This mushy definition of personal jurisdiction is troubling
and opens the way to potentially endless wrangling."
Also, the wording could prevent investigation of the role of lower-ranking KR cadres
to determine the functions of their leaders.
Nevertheless, the only major change that the Legislative Commission has made so far
to the tribunal law is the altering of Article 1 into the wording above.
Since the UN-Government agreement in July, the commission has had one meeting with
Sok An, in which it finalized the first eight articles of the law.
At Post press time, no future meetings were scheduled, though Sophan believes that
the process could move along swiftly if the Government would brief the commission
on the full contents of the MoU and the list of changes.
"Personally, I'm willing to agree with everything that the Government and the
UN has decided," Sophan says. "So, I'm sure, is Prince Ranariddh and the
rest of Funcinpec."
But leaders of civil society blast the politicians for keeping the tribunal process
secret and not involving the Cambodian public in the debate.
Saray says: "We have called for more transparency before. The Government should
let the public participate in the KR tribunal process, as this is the concern of
Youk Chhang, the Director of the Documentation Center of Cambodia, which collects
evidence and testimonies about Khmer Rouge atrocities, believes it is the obligation
of the parliamentarians to brief the voters in their constituencies about the tribunal
"They are our representatives and it is their task to inform the public about
the process. If they don't do that, one must ask two questions: Is it because the
parliamentarians are not doing their job properly? Or is it because they cannot do
anything because they are being held hostage? In this case it looks like they are
being held hostage," Chhang says.