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The American role in putting together a KR trial deal

The American role in putting together a KR trial deal


US Ambassador Kent Wiedemann

Today, US Senator John Kerry arrives in Phnom Penh to try to hammer out an agreement

between the UN and the Cambodian government on the structure of the prosecution at

a future Khmer Rouge tribunal. US ambassador Kent Wiedemann spoke with Anette

Marcher about the American involvement in the negotiation process.

The Post: In October last year, the US presented a tribunal compromise that

involved the supermajority and the coprosecution that are now part of the draft law.

Now, another US-sponsored compromise seems close to breaking the deadlock concerning

the last major outstanding issue between the UN and the Cambodian government, namely

the prosecution. What was the US's motivation for putting those compromises forward?

Wiedemann: We've been seeking to establish a Khmer Rouge tribunal for the

last two years. A tribunal somehow under the auspices of the UN that would live up

to international principles of justice. But in August last year [after talks between

the Cambodian government and a UN team, led by Ralph Zacklin], we found ourselves

with a fundamental impasse between the two sides.

At that point, the US government believed that it would be in our own national interest

to see issues of crimes against humanity dealt with internationally: to develop a

fabric of international law to deal with those kinds of crimes and to find justice

for the Khmer Rouge within that framework.

Further, we felt that credible justice for the Khmer Rouge was something that really

needed to happen in this country in order to close that tragic chapter of history.

So seeing the impasse between the UN and the government, we offered our good offices

to both sides in October and said that we would be pleased to help behind the scenes.

We pointed out that it was really an issue between the government and the UN and

that only they could make the decisions, but that we were there to help.

We then also began to offer ideas that would permit a practical integration of UN

or international jurists into the Cambodian system. Since October and until now we

have been fully engaged in the process pretty intensively.

We started out with the very thin draft that had been produced here as a basis for

the tribunal. Knowing the great gap between that draft and the expectations of the

UN Legal Affairs Office, we tried to introduce increasing increments of the UN's

view - which is of course also our own - into the Cambodian draft. And I believe

we have been successful in doing quite a lot in that direction.

The question of the prosecution is really a basic issue of political trust. There

is a fear that the government could manipulate the members of the tribunal in a way

that would block the prosecution. So the UN's basic aim was to find a legal mechanism

that would preempt that from happening.

This is what we have been working on ever since Undersecretary-General Hans Corell

and his team left Phnom Penh. And a compromise proposal was put forward in early

April by Senator John Kerry in Havana, where he met with both Secretary-General Kofi

Annan and Prime Minister Hun Sen.

What we're doing is not a formal mediation. I don't think either side would recognize

any form of formal mediation, and we would frankly shrink away from being formally

placed in that role. To put it less pompously: We've just tried to help.

Our interest simply is credible justice based on international standards, and if

that cannot be obtained - in the shape of a tribunal as a result of an agreement

between the UN and Cambodia - then the US would not and could not support it.

The Post: Given the recent history of the USA in Cambodia and Indochina, some

would find it hard to believe that the US is merely doing this to "help".

Wiedemann: No diplomat can divorce himself from history. But it isn't those

30 years history [of American involvement in Indochina] that's driving us so much

here. It's the 25 years of history of the Khmer Rouge atrocities that drives us.

There is a need to close that chapter of history for the sake of the Cambodian people

and reconciliation.

The Post: What about the American part of this history?

Wiedemann: I think we feel a responsibility, certainly. Our history is

intersected with this country. I personally feel a responsibility to do what we can

to help Cambodia to emerge from that tragic mire of the last 30 years of civil war,

which includes the period of Khmer Rouge rule.

The Post: The supermajority and the coprosecution have been criticized as

structures that will water down the UN's international standards of justice. What

is your response to that critique?

Wiedemann: The suggestion of the supermajority vote was the absolutely

essential key to breaking the impasse between the government and the UN, who both

insisted on having a majority of judges in the court. We came up with the idea of

the supermajority as a way to bridge that gap.

The supermajority is a second best. It's a fallback, no question about that. But

let's not make the perfect become the enemy of the good. The supermajority works.

It's a practical mechanism that ensures that there will be no breakdowns among jurists

along national lines.

I don't see how that undercuts justice. Besides, there are also other intentionally

built-in guarantees against that.

For instance, the Khmer Rouge process will be transparent. The whole world - you,

me, the diplomats, the journalists, human rights groups - everyone will be watching.

It will be free and open to scrutiny.

If the prosecutor or a justice advances an unwarranted argument it becomes one of

these red-face issues, because you just know that's wrong. I dare say that the media

will cover it and the diplomats would leap on it. In short, the world would demand


I'm not trying to argue that this is a perfect model. It is a unique model but that

doesn't mean that it is a flop. I've seen the argument that because it's not like

the tribunals for Rwanda or Yugoslavia, it's second-class justice. But, in short,

it's not at all unusual that we establish new customized models to fit certain national


The Post: Some criticize the US for undermining the UN by playing such a big

part in the negotiations. Do you see their point?

Wiedemann: You have to separate it into two categories. One is whether

the US is undermining the important principles, in this case the principles related

to real, credible justice. And that's the test. The other question is a more political

one: is the US seen as undermining the UN?

I would say that the US is not undermining the UN or any principle. We have made

it clear from the very beginning that we support the UN.

We cannot force the UN into doing something that it does not want to do. We will

not. It's politically untenable for us. Even if we wished to - we don't wish to -

in our extremely open democratic political system, there is absolutely no way we

would ever be able to pressure the UN into doing anything that human rights groups

and our Congress do not agree with.

If a given individual within the UN Legal Affairs Office has an idea or insists upon

a position which we do not think is going to work and is not necessary to maintain

credible justice, then we feel free - are free - to offer an alternative if it achieves

the same objective. Legally, there are many ways to skin a cat.

Certainly, we have offered views that do not comport with some particular lawyers

within the UN and we have argued with them. But is that US pressure? Or is that the

right of a member state to express its view?

I'm sure some human rights groups would prefer to refer to that as US pressuring

the UN to surrender its absolutely correct, maybe even sacred, legal principles.

We would characterize it as an honest attempt to engage collegially with our friends

in the UN. To achieve the same objective, although perhaps differently.

The Post: You say that the US sees it as in its national interest to deal

with the KR atrocities within an international framework. How does that correspond

with the US refusal to take part in the International Criminal Court (ICC) in Rome?

Wiedemann: I think they are two different subjects. The US feels very strongly

about international law and an international fabric of law to deal with these serious,

monstrous crimes that are the concern of the international community, not simply

of an individual nation.

In the case of the ICC our issue is not about perpetrators of horrendous crimes.

Our concern is that the ICC should have adequate mechanisms to guard against frivolous

cases being brought against, in this case, Americans. We're protecting ourselves.

The US fulfills a special and rather unique position in the world right now, given

our overwhelming military capability. We sometimes have to do things that other countries

cannot or will not do, but which we think should be done. The last thing we want

to see is our troops or commanders arrested and called before some international

court when they visit Paris on vacation.

But I think the ICC and the Khmer Rouge tribunal are sort of like apples and oranges.


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