The newly finished draft law for a Khmer Rouge tribunal looks set to ensure that
the Cambodian government retains tight control over the
Though the draft law includes such elements as the
US-proposed supermajority and co-prosecution, it renders little influence to any
foreign participants and even less to the UN. This makes it doubtful that the
world body will be inclined to take part in the tribunal, which raises the
question of who will then finance the process.
The proposal that is
expected to be approved by the Council of Ministers today incorporates many
elements from previous UN-proposals and a US-brokered compromise from
However, a certain number of 'safety valves' ensure that nobody
will be prosecuted or convicted without the Cambodian government wanting it. As
one human rights lawyer pointed out, the main concern in connection with a KR
tribunal is not that innocent people are unduly convicted, but that guilty
perpetrators are not judged.
Prime Minister Hun Sen recently hinted that
former top KR leader Ieng Sary will not be tried, and earlier this week he
stated that the tribunal will only prosecute four or five suspects.
the main points of conflict between the government and the UN has earlier been
the nationality of the tribunal prosecutor and the ratio of foreign and
In the current draft law a majority of Cambodian and a
minority of foreign judges rule by supermajority. This means that a suspect
cannot be convicted unless at least one foreign judge agrees.
But it also
means that the foreign judges cannot make a conviction on their own. They need
the consent of two of their Cambodian counterparts. If supermajority for a
conviction is not accomplished, the suspect is automatically
Likewise, the proposed co-prosecution dictates that both the
Cambodian and the foreign prosecutor have to recommend prosecution. If one of
them does not agree, no charges can be pressed.
The appointment procedure
of foreign judges and prosecutor leaves minimal influence for the UN. The
secretary-general can recommend candidates after consulting with the Cambodian
government. But the final selection is in the hands of the Cambodian Supreme
Council of Magistracy.
The UN proposal from August states that tribunal
judges must not be affiliated with any Cambodian political party. This is left
out in the current draft law.
While judges and prosecutors are the main
tools for controlling the tribunal, other elements reinforce the government's
grip on the process.
One example is the Office of Administration that
assigns personnel for the judges and the prosecutors. The Director of the Office
and all staff will be appointed by the Cambodian government alone.
left out in the draft law is an article from the UN proposal that allows
suspects already prosecuted at a Cambodian court to be tried again at the
tribunal. This may be explicitly aimed at Sary who was convicted at a trial in
1979 and later amnestied.
The UN brokered compromise suggested close UN
monitoring of the tribunal. This is not mentioned in the draft
Finally, the last article of the draft law makes it possible to
proceed without any foreign participants in the court room. "In case of
abstinences of foreign judges or co-prosecutor with any reason ... the
[tribunal] shall be filled by Cambodian judges or co-prosecutors," it
According to analysts and observers, all these factors make it
unlikely that the UN will wish to be involved in the tribunal.
Cambodian government has made an effort to meet some of the concerns of the
international community. But this is still insufficient to warrant the support
of the international community," says one Western diplomat.
And the fact
that the UN was only given less than four days to respond to the draft law does
not facilitate an understanding.
"A few days is clearly not enough for
the UN to express a solid opinion. The draft is not very specific, particularly
on important procedural issues and issues of substance. On many points further
clarifications will be required. Such important issues cannot be dealt with on a
take-it-or-leave-it basis," points out the diplomat.
However, the draft
law relies solely on financing from a trust fund set up by the UN
secretary-general. If the UN declines to participate, Cambodia will have to seek
funding from its own coffers or - more likely - from foreign
The French government has long since vowed to provide
technical assistance. But according to an embassy official, France is still
waiting to see the final working document for the tribunal before they commit to
any other contributions.
While the US brokered the compromise tribunal
proposal in October, India and Russia sent legal experts to provide advice in
writing up the current draft law. The draft law does state that the proceedings
at the tribunal will be translated into English, French and Russian.
contacted by the Post, the Russian embassy declined to comment.
approval by the Council of Ministers, the draft law will be submitted to the
National Assembly and the Senate. Though both parliamentarians and senators
predict heated debates about the law, analyst Dr Lao Mong Hay of the Khmer
Institute of Democracy expects that it will pass smoothly.
doubtful that we will see a lot of amendments in the National Assembly or the
Senate. A lot of debate will create a lot of controversy and I don't think the
government wants more controversy in this case," says Mong Hay.
criticizes the secrecy that has surrounded the drafting of the law.
whole process has been tightly controlled. It has been confined to a limited
group of people and not many have known what was happening. But an important
matter like the KR tribunal should be put out to a bigger audience. Cambodia has
a strong body of opinion who should have had a say in this," says Mong Hay.