THE United Nations' announcement in New York February 8 that it has withdrawn from
the proposed Khmer Rouge tribunal could spell the end of almost five years of discussions
on the subject between the UN and the Cambodian government.
The UN received the support of Amnesty International and Human Rights Watch, which
said the UN "acted appropriately" as Cambodians deserved the highest standard
of justice. Privately, Phnom Penh-based diplomats were furious.
"Most criticism of the UN is about how it was handled. Do you cut them off with
a press release?" said one. "The manner in which it was done suggests an
attempt to provoke Hun Sen," said another.
The UN's former special representative for human rights in Cambodia, Thomas Hammarberg,
was less surprised.
"The [UN's] legal office has been skeptical all along. One reason is its limited
resources," he said. "And there was still the feeling that there were no
full guarantees to prevent political pressure."
The UN's chief legal counsel, Hans Corell, said the main reason the organization
pulled out was because the two sides disagreed over which document would take precedence:
Cambodia's law on the tribunal, or the Memorandum of Understanding (MoU), which has
not yet been signed.
The MoU was to deal with operational aspects of the tribunal, and the UN insisted
it prevail over the trial law. The government for its part demanded that the August
2001 trial law dominate the MoU.
At a press conference February 12, the government's negotiator with the UN, Minister
Sok An, told reporters Cambodia still considered the matter open. He said there was
a window of around three months during which time he hoped the two sides would reach
agreement, but gave no hint on where compromises would come.
Reading from a statement, Sok An expressed "dismay" at the "completely
unexpected announcement". He said the government had made numerous concessions
and the law already contained "all the fundamental principles agreed to between
the two sides during the negotiations".
Breaching a "gentleman's agreement" with Corell, Sok An released two letters
outlining Cambodia's responses to Corell's objections. The tone of the letters is
frequently exasperated. In them Sok An emphasizes that a number of the points raised
by Corell had been settled in previous negotiations.
In his November 23 letter, Sok An accuses Corell of "blurring the distinction
between the nature and purpose of the Law and the Articles of Cooperation [MoU]".
Sok An said the MoU's relationship to the law was a "non-issue". However,
the parties proved unable to agree even on a name for the document with the Cambodian
government preferring "Articles of Cooperation".
Sok An's letter informed Corell that the MoU's role was only to "determine the
modalities of cooperation ... in implementing those provisions of the Law concerning
foreign technical and financial support ... [and could] clarify certain nuances in
the Law, and elaborate certain details [but] it is not possible for them to modify,
let alone prevail over, [the] law".
Other sticking points were addressed in an eleven point response January to Corell's
October 10 letter. The government agreed international judges and prosecutors could
only be replaced by other internationals; defendants would be guaranteed their own
choice of counsel; the UN secretary-general had the right to appoint UN staff; and
the government would protect witnesses.
On the issue of amnesties the letter informed the UN that the draft law "makes
a clear statement of the government's intent not to request an amnesty for any person".
US Ambassador to Cambodia, Kent Wiedemann, told the Post he was surprised at the
unilateral announcement. He said it was clear from private conversations that Cambodian
government officials were "genuinely interested" in asking the UN to reconsider.
He criticized Corell, whom he said "did not bother to sit down and negotiate"
their differences. Wiedemann conceded there were "legitimate concerns"
about possible Cambodian manipulation of a tribunal, but felt they had been addressed.
He described the UN's objection to the pardon for Ieng Sary as "disingenuous
"The [tribunal] law states that the government won't ask for a pardon [for tribunal
suspect], and that takes care of it," said Wiedemann. "Ieng Sary's pardon
was narrowly focused on the crime of genocide, but the law spells out a host of [other]
crimes in Article 1."
Wiedemann said the US and other countries would push the UN to reverse its decision.
However, a source who has followed trial negotiations closely was skeptical.
"Senior State Department officials called the UN to lobby for action on average
three times per week during 2000; after the installation of the Bush regime, the
UN received approximately zero calls," the source told the Post. "The UN
could not fail to notice this change of emphasis, especially since the Chinese did
not stop calling to register their opposition."
Another source close to negotiations said it was standard practice that UN agreements
prevail over local legislation; the UN could not be bound by domestic law.
Corell said Sok An's November letter categorically ruled out that option. As the
UN could not guarantee international standards of justice, the source said, it could
"It is a tragedy that 1.7 million dead Cambodians will not see justice done
in their name, but blame should fall where it is due," said the source. "It
is the fault of Hun Sen for making a credible international tribunal in Cambodia
impossible, and thus denying justice for the dead - not the fault of the United Nations
for recognizing that fact.
"It will be a show trial without the UN, [which] could not guarantee it would
not be a show trial even with their involvement. That is why they took the courageous
decision to pull out rather than risk being sucked into a non-independent process."