The United Nations is back in Phnom Penh to talk about the trial of the Khmer

Rouge. Lawyer and former UN human rights investigator, Brad Adams, looks at

the history of the negotiations to date and the compromises that have been made and

those that should not.

On February 8 United Nations Secretary-General Kofi Annan laid out the basic principles

for UN involvement in an international tribunal for the Khmer Rouge. These principles

- guarantees for the arrest and surrender of indictees, a ban on amnesties (before

trial) or pardons (after conviction) for persons accused of genocide or crimes against

humanity, an independent, international prosecutor and investigating judge, and a

majority of international judges appointed by the Secretary-General - are essential

for a credible judicial process to be undertaken to address some of the worst crimes

of the 20th century.

As there is a consensus that Cambodian judges and prosecutors lack the independence

and technical ability to carry out trials of genocide and crimes against humanity

(even the government has admitted the lack of independence of the judiciary in its

reports to the UN on civil and political rights), it would seem that these principles

would attract universal support. Cambodian human rights NGOs, the Cambodian Bar Association

and the Legislation Commission of the National Assembly have all endorsed these principles.

However, a number of objections have been raised by an odd, informal coalition including

Prime Minister Hun Sen, some Phnom Penh-based diplomats, and a group of expatriate

advisors and commentators. With the arrival of the UN for "the last and decisive

round of negotiations," these objections are worth considering in detail.

Hun Sen has raised two main objections to the creation of a genuinely independent

tribunal. The first is the threat of renewed war if Khmer Rouge leaders are arrested

and put on trial. Of course, to the extent that there is a real threat this applies

whether the UN is involved or not. Yet there is now a consensus across party lines

and among diplomats that there is no risk that the prosecution of Khmer Rouge leaders

could lead to the return of armed conflict, as the Khmer Rouge has now collapsed

as a fighting force. It would now be impossible to remobilize the population to take

up arms and fight.

In fact, as government officials freely admit, the real powers in former Khmer Rouge

areas such as Pailin, Malai and Anlung Veng are now so invested in a peaceful future

- as the result of newfound wealth and freedoms, particularly freedom of movement,

both inside and outside of the country - that the prospect of renewed conflict is

unthinkable. To take one example, the Mayor of Pailin, Y Chhean, has now sent his

children to school in Singapore, something beyond the realm of possibility even three

years ago. He can now travel around Cambodia and the world without fear or inhibition.

He and his followers are unlikely to give this new life up for the old one of malaria,

landmines and hopelessness, simply to protect a handful of old men. It is interesting

to note that while fear of renewed fighting was Hun Sen's chief explanation for his

macabre Christmas 1998 embrace of Nuon Chea and Khieu Samphan, he rarely defends

his opposition to an international tribunal on this basis anymore.

Instead, the primary objection now proffered is the old and fading canard of "sovereignty."

While sovereignty is still the basic organizing principle of international relations,

it has long been misused as a defense of the indefensible - of genocide, extra-judicial

executions, torture, disappearances and other crimes committed by states against

their citizens. When human rights are involved, sovereignty has become the last refuge

of dictators and those unable to articulate a more principled defense of their actions.

Countries such as China and Vietnam raise "non-interference in internal affairs"

every time their human rights records are criticized. Even democracies such as Australia

occasionally use this rhetoric, as Prime Minister John Howard recently did after

the UN criticized its law on mandatory sentencing. US Senator Jesse Helms trots out

this argument every time he objects to an international treaty that would in any

way limit American power to do what it wants, when it wants. On the grounds that

only US courts should be able to try American soldiers accused of war crimes, Helms

and the Pentagon convinced President Clinton to side with only six other nations

and oppose the 1998 treaty establishing the International Criminal Court - a court

which would have jurisdiction over future genocidistes like the Khmer Rouge.

As a legal matter Cambodia has long since stopped hiding behind sovereignty to cut

off discussions related to human rights and the administration of justice. It has

ratified UN human rights treaties and the Genocide Convention. It regularly reports

to UN bodies on human rights, women's and children's rights, and the rights of ethnic

minorities. And it has agreed to a Special Representative for Human Rights who makes

semi-annual reports to the UN on the situation of human rights in Cambodia. As a

result, Cambodia is now a part of the international legal system - a reflection of

the legitimacy that Hun Sen and the CPP craved for so many years. This comes with

rights and obligations. One emerging responsibility is that when a country's judicial

system is incapable of conducting fair and independent trials of the most serious

international crimes, such as genocide and crimes against humanity, it is the responsibility

of that state to allow the international community to do so.

It is therefore ironic, to say the least, that it should be Hun Sen who argues that

the rest of the world has no business being involved in the trial of the Khmer Rouge.

He, more than most, should be aware that those who now wave the banner of sovereignty

are essentially arguing that Vietnam had no right enter Cambodia in 1979 and save

Cambodians from the Khmer Rouge, since Pol Pot certainly did not invite the Vietnamese

in. The CPP endured over a decade of international isolation defending the basic

premise that the survival of people trumped abstractions like sovereignty. Put simply,

the debate about sovereignty comes down to a clear choice: states or people. Not

a tough call.

Though Hun Sen has attempted to turn this into a "Cambodia against the world"

issue, very few Cambodians are on his side. Even the large majority of CPP members

are in favor of a tribunal based on international standards - no surprise, given

the fact that they endured great hardships while fighting the Khmer Rouge after 1979

(though in the continuing climate of fear that permeates Cambodian politics none

are prepared to speak publicly against the position of the Prime Minister). In fact,

many CPP members are shocked and even furious that Hun Sen has now ceded the CPP's

main historical claim in pursuit of tactical and short-term political considerations.

Instead of putting pressure on the Cambodian government to comply with international

norms, some diplomats suggest that the UN should "compromise" with or "make

concessions" to the Cambodian government in the next round of negotiations.

Such an approach fundamentally misunderstands the purpose of UN involvement in this

process. Discussions on the creation of a tribunal are not the same as typical political

or diplomatic negotiations (such as those convened to form a government after an

election or to cut a trade deal), in which both sides are supposed to "give

and take." A tribunal is a judicial process, requiring the adherence to basic

principles, which means that the UN cannot "put all the issues on the table"

for discussion.

As Kofi Annan said in his briefing to the Security Council on February 29: "The

main concern of the United Nations is to ensure that the judicial system set up for

this purpose under Cambodian law does indeed reach international standards."

These standards should be non-negotiable. The UN simply cannot - and should not be

asked to - compromise on core principles. Otherwise, the future integrity of the

tribunal is likely to be undermined. The victims in such circumstances would not

be the UN or the Cambodian government, but the people of Cambodia.

While the UN is sometimes characterized as intransigent, thus far the UN has shown

a great deal of flexibility on two key issues: the composition of the tribunal and

the location. The UN "Group of Experts" concluded that the political environment

in Cambodia was such that there should be a fully international tribunal located

outside of Cambodia, but the Cambodian government demurred. The UN responded by agreeing

to a "mixed tribunal," located in Phnom Penh. In international justice

such a decision was unprecedented - even revolutionary - and reflected an attempt

to meet the government's concerns without compromising the integrity of the tribunal.

While the UN has shown flexibility, the Cambodian government - which in June 1997

requested the UN to organize an international tribunal "similar" to the

ones "in Rwanda and the Former Yugoslavia" - has not. Instead, it has engaged

in a series of tactical but essentially empty gestures. For instance, the offer of

co-prosecutors, in which the international prosecutor would have no independent power

to indict, was essentially a meaningless amendment, since it would leave the most

important aspect of the tribunal - deciding who to investigate and charge - in the

hands of prosecutors who take orders from the Cambodian political authorities.

It is also important to remember that any decision by the UN in Cambodia will have

significant consequences internationally. For many years the UN and others have struggled

to create an international legal system in which genocide, war crimes and crimes

against humanity would no longer go unpunished. The ad hoc tribunals for Rwanda and

Former Yugoslavia were milestones in this effort. More important was the agreement

in 1998 to establish the International Criminal Court (ICC), which was signed by

over 100 nations. The ICC sets strict standards on the same issues being debated

in Cambodia, namely complete operational independence of judges and prosecutors and

an international agreement to arrest indicted suspects.

Many around the world are thus watching developments in Cambodia carefully, waiting

to see if a new, lower standard will now be established. The UN is acutely aware

that such a step may be a serious and perhaps fatal blow to the ICC and prevailing

international standards. One can easily imagine future demands for the "Cambodia

precedent" instead of the standard created by the ICC or the ad hoc tribunals.

Diplomats, particularly those representing countries with an abiding interest in

international justice, should be aware of this possibility. Short-term political

interests - such as illusory concerns about political stability in Cambodia - should

not be allowed to trump the much more important long-term interest in a genuine and

credible system of international justice.

Another, often-overlooked issue that reinforces the need for a completely independent

prosecutor is the need to gather enormous amounts of evidence in any future tribunal.

Many commentators have greatly overestimated the legal value of documentary "evidence"

left by the Khmer Rouge. While of great historical interest, most of these documents

will be of marginal use as the basis for a conviction of members of the Khmer Rouge.

In a court of law documents rarely speak for themselves. If offered alone and without

supporting witness testimony, good defense counsel will probably have little problem

in rebutting documentary evidence given problems such as authenticating signatures

or establishing the chain of custody of the documents.

Thus, the testimony of witnesses will be critical in gaining indictments and convictions.

This leads to three complications. First, tribunal investigators will need complete

freedom and substantial resources to interview witnesses throughout the country (those

alive may not be easy to find after all these years, or may be too afraid to talk).

If the prosecutor is not completely independent he or she will be prohibited from

even attempting to go into the field and gather evidence. In the Cambodian political

environment only foreigners will have the freedom (and perhaps the courage) to undertake

this effort, as traveling to rural villages to gather this kind of evidence is risky

business even in low profile cases for Cambodian investigators.

Second, the sad fact is that no Cambodian prosecutor has the professional qualifications

to conduct investigations of this kind (nor do the police). The painstaking process

of gathering evidence and interviewing witnesses are not yet part of the trial process

in Cambodia. Third, a long-term witness protection program for those brave enough

to testify is essential (including possible relocation to third countries). This

requires international control, since few if any Cambodians would trust the government

to provide for their long-term security or accept their assurances of confidentiality.

Without full operational independence, the result could be a lack of evidence to

indict or convict persons who appear to be some of the century's greatest criminals

- an outcome that would be deeply embarrassing for the UN and hurtful for the Cambodian

people. Determinations of innocence or guilt of Khmer Rouge leaders should only come

after serious and exhaustive investigations by a credible and independent prosecutor,

or the process will simply not be accepted in Cambodia. Not only is this important

for reasons of simple justice, it is crucial to the creation of an accurate historical

record of this period. A genuine trial process may be the last chance to hear from

people such as Ta Mok, Nuon Chea, Khieu Samphan and "Duch" and learn their

many secrets. In a sham trial they will be reading from a script.

One minor issue which should be clarified is the repeated criticisms of the UN by

the Prime Minister for giving Cambodia's UN seat to the Khmer Rouge in 1979 and thereafter.

Hun Sen has suggested that in any future tribunal Kurt Waldheim, Javier Perez de

Cuellar and Boutros Boutros-Ghali should be called to explain their actions in this

respect. This would be an attractive point if only it were true. In fact, this wholly

immoral and unprincipled decision was made by the member states, not the UN or its

various Secretary-Generals. For instance, in 1979 the Credentials Committee voted

6-3 (with the US in the majority) to give Cambodia's seat to the Khmer Rouge (Prince

Sihanouk had urged the seat to be left vacant). Later that year the General Assembly

voted 71-35-34 in favor of the Credential Committee's recommendation. This was repeated

in future years. The UN as an institution has no role in discussions of credentials.

If the Prime Minister has a complaint on this matter, he should address it to Beijing,

Paris and Washington.

The success of a tribunal for the Khmer Rouge will depend on a sound structure. In

a mixed tribunal any crack in the structure that allows for political manipulation

is likely to be exploited, since in practice Cambodian judges and prosecutors are

directly answerable to the executive branch. Yet some naively suggest that in a high

profile setting the government could not interfere in the process. This simply ignores

reality. There was no bigger stage than the 1993 UNTAC elections, which were subverted

by the losers through a fake secession movement and the threat of civil war. The

Cambodian government has staged a number of high profile sham trials in recent years,

including that of Prince Ranariddh after the July 1997 coup and former Foreign Minister

Prince Sirivudh in 1995. Hun Sen has run circles around the international community

since 1991 and there is no reason to expect a mixed tribunal located in Phnom Penh

to be any different if he decides it is in his interests to manipulate the process.

Once the UN and donors buy into the process, they will not walk away, no matter how

bad it smells.

Those interested in justice should remember that it is more important to get it right

than to simply make a deal for its own sake. If it is not possible for credible trials

to take place in the near future, these cases will not be forgotten. Victims have

long memories. One only has to look at the continuing prosecutions of Nazi war criminals

over 50 years later, and the recent efforts by European governments to extradite

the dictator General Augusto Pinochet for the slaughter in Chile after the 1973 coup.

(One of the most puzzling and disappointing aspects of the international response

to the possibility of a tribunal for the Khmer Rouge has been the silence of these

same governments. If France, Belgium, Spain and Switzerland have been so eager to

ensure justice for the killing of approximately 3,000 Chileans - by actively intervening

in the judicial process and offering to put the Generalissimo on trial - why do they

seem indifferent at best to the deaths of almost 2 million Cambodians? And why has

no government insisted on the immediate arrest of Nuon Chea, Khieu Samphan, Ke Pok

and Ieng Sary? It is simply immoral for the sponsors of the Cambodian Holocaust to

continue to live comfortably, travel freely, and to wander the streets of Cambodia

as free men. The Cambodian government could, and should, arrest these men tomorrow.)

While UN-bashing may be an enjoyable sport, it is time for those truly interested

in justice to support the principles Kofi Annan has articulated. This is the bottom

line, below which there can be no certainty that any trials will be genuine. Cambodians

have waited long enough for justice and the truth about this terrible period. It

is time for those blocking a legitimate trial process, or acting as apologists for

those who do so, to answer a simple question: "Are you on the side of the Khmer

Rouge, or the victims?" History will be a harsh judge.