​KR tribunal: Corell meets the press | Phnom Penh Post

KR tribunal: Corell meets the press


Publication date
28 March 2003 | 07:00 ICT

Reporter : Vong Sokheng and Bill Bainbridge

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Five days of talks between the United Nations and Cambodian government brought a

result that few believed possible: agreement on the trial format for a Khmer

Rouge tribunal.

The UNís Hans Corell and the governmentís Ngy Tayi of the committee for financing the tribunal, in Phnom Penhís Chaktomuk Theater, the venue chosen for hearings. Corell returned to New York on March 17.

The text of the agreement, initialed on March 17, is set

to be presented to the UN General Assembly and Cambodia's National Assembly in a

move that seals nearly six years of negotiations.

Cambodia's Senior

Minister Sok An, who heads the government's tribunal negotiating team, told

reporters on March 19 that the UN General Assembly would have a full debate on

the agreement in April. He made no comment on when the Cambodian National

Assembly would meet to consider the agreement and the necessary amendments to

the Tribunal Law.

Sok An described the agreement as "important to

Cambodia and humanity as a whole", adding that the tribunal would prevent the

Khmer Rouge regime from ever returning to power and provide justice to the

victims of genocide.

The deal follows more than a year of stalemate

during which UN member states pressured a reluctant secretariat to resume

negotiations. The UN under-secretary-general Hans Corell met journalists for an

hour-long press briefing before departing for New York. The following is an

edited text of that briefing.

When you arrived you were cautious and said

we shouldn't underestimate the difficulties. What happened? People are surprised

and see this as a breakthrough - what was the magic?

Well I'm always

cautious and I think I should be as the legal counsel for the United Nations. I

think there is a different attitude on the Cambodian side and we had a very

constructive discussion on many issues.

However, you would note there's

still an element of caution on my behalf today because it is for the General

Assembly to finally appraise the result of the negotiations, and therefore it

would not be prudent of me to express any opinions or evaluate the result of


Will the trial be only for those most responsible or for

the leaders of the various regions, and did the PM verify this matter?

Sok An speaks to the media at a press conference on March 19 to discuss the deal reached with the UN.


can only refer to the precise language in my press briefing: "The chambers will

have jurisdiction only over senior leaders of Democratic Kampuchea and also

those most responsible for the crimes and the serious violations."


it is for the prosecutor to draw up the strategy once appointed, so I would be

careful not to express myself in too precise terms but obviously, when you see

this language, you would see that it is focusing on not so many facets, and I

think this has been an important factor in the decision of the government of

Cambodia. I think this has also been a lodestar for the many states that have

encouraged Cambodia to follow this path.

Do you think you'd like to

return to Cambodia in a more relaxed atmosphere?

Well if you talk about a

more relaxed atmosphere, I hope to come back to this beautiful country some day.

I've been here three times and I've hardly been outside the city and, to be

truthful, I've hardly slept.

But if you approach it from that

perspective, I think that it is important that the work that might be done on

the basis of this agreement will bring healing to people so that people when

they come here will think of the culture of the traditions of the people of

their hospitality rather than of the dark period in history.

Could you be

a little more specific on what has allowed you to go back to New York and say

you have received guarantees on international standards?

What you have

witnessed here is a procedure, under Treaty Law, which has ended in the two

parties initialing a text. That means that the negotiators have come so far that

it will be very difficult to go beyond what they have achieved.

At the

same time the negotiators do not have the authority to make the final decision

... so that text is brought back to those who make the decisions: The government

of Cambodia and the UN General Assembly. If they decide to go forward, then we

have agreement.

Can you outline the steps that need to be taken between

now and establishing the tribunal and when is it likely that we'll see the trial


You'd be surprised that the first steps are quite mundane - we

have to identify locations. We have seen again the beautiful theater [Chaktomuk]

that I saw a few years ago where the government plans the trial chamber would

sit. To set up a court is quite an exercise and my colleagues at the legal

department have some experience here. They've set up the Yugoslav Tribunal, the

Rwanda Tribunal and the Tribunal for the Special Court of Sierra Leone.

What we have to do is to discuss with the government about the premises

and I have to go back to New York and meet with the interested states. One very

important issue will be the financing of the court and I know that the

Secretary-General is thinking of options here.

Everybody knows that we do

not have much time and this is stressed in the General Assembly resolution, and

I hope that the member states that adopted that resolution remember that

passage. We then have to identify persons to do this work. Who should be the

judges, who should be the prosecutors and so forth. Now if there is political

will this could be done fairly quickly.

The question is, though, when

will we see the first prosecution? That's a very delicate question but let me

give you some general reflections. The prosecutor of the Special Court in Sierra

Leone was appointed in June last year and the first indictments were published

some ten days ago. So that could give you some indication of the time span that

was needed in that context.

These trials, when held, will be held under

intense scrutiny from the media, NGOs and others so, with this attention, those

who are acting for the court - every step they take will be observed - so I

think that this is an incentive to observe the standards that are laid down in

the agreement.

Are you satisfied with this agreement


It's not a question if I'm satisfied or not. I'm a

professional, I'm an international civil servant ... it is my task to do the

best I can. I've tried to use my judgment, my experience from my various walks

of life including ten years on the bench in the criminal court of my home


Will the prosecutors be basing their case on the documents held

at the Documentation Center of Cambodia?

The answer is very simple: A

prosecutor goes where the evidence leads. Any documentation of relevance will be


One issue raised by some human rights groups was over witness

protection. Did Cambodia give you any assurances on this?

We have

provisions to that effect in the agreement. We have to stress in this context

that this is a national court, and you have to keep in mind all the time the

distinction between an international court and national chambers ... In this

particular case the national court has jurisdiction only over


This means that many people that are involved in one way or the

other will be here and there's no way that one can interfere with this from the

outside. It would have to be the national authorities of Cambodia that guarantee

this. I would take it for granted that the publicity around these negotiations

would be an indicator to those responsible that they had better do a good


Will foreigners be able to defend the accused and, secondly, can you

tell us how judges will reach decisions?

On the first question they can.

We spent quite some time discussing this issue and you will find in the

established text of the agreement a provision that addresses that issue

specifically, also making references to the standards that such counsel should


I would say, as a professional from the bench, that it is a

complex system that has been elaborated. I certainly did not invent it. The

supermajority is cumbersome, but I think that if this agreement comes true we

should shift our focus from all these detailed provisions and rather see whether

people of different nationalities, when they sit there on the bench, that they

will not think alike, they will not arrive at the same decision.

It is

not uncommon that judges in a criminal court will arrive at unanimous decisions,

and of course that strengthens the hand of the court.

We would rather

hope that the court will help the people of Cambodia in developing a system

under the rule of law in Cambodia within their own country. This is an issue to

which we revert all the time in the United Nations Secretariat when we look

around in the world and look at the reasons why there are conflicts, why people

are mistreated and so forth. We often come to the same conclusion: human rights

are being violated; there is a lack of justice in the country.

You can't

develop that overnight. It may take a generation or two to develop people with

sufficient standing and independence and integrity to administer the system of

justice and do that without looking over their shoulder. So let's see this as a

way for a tormented country to have a stepping-stone to develop a proper system

under the rule of law.

Given those statements, do you think this trial

could form a model for other countries around the world with similar


I'm ... [pause] not certain. I think first we would have to see

how it operates. It's not an uncommon feature to have foreign judges on the

national court of any state. We have in Kosovo international judges for the

simple reason that the national judges would have difficulty in being impartial

and independent.

It may be [a model], but at the same time it is rather

complex model. It is the choice of the government and we have to respect that.

If the General Assembly goes along then so be it. As a professional judge I

would have to say that a more simple structure would definitely be an


In your experience how long will it take to set up the


My experience from Sierra Leone was that the resolution adopted

from the Security Council ... on the 14th of August 2000 ... the negotiations

with the government took four weeks and the council then took about four months.

That put the Secretary-General in a position to start getting the


That was, unfortunately, a rather dragged-out procedure and it was

not so easy to have the funds. And this is one of the concerns that the

Secretary-General has. I'm sure it will be the first thing we will start working

on now when I return to New York. It may be different here because there are

many states that are very interested and have been very active in trying to

persuade the Secretary-General to act here. So if that's done in a speedy manner

we will start setting out a timetable.

What budget would the trial


It would be premature [to say]. Certainly we have figures, we

have an idea, and it is an unwritten law that no figures are given without being

ratified. The costs will be borne for the international component by the United

Nations and we are not certain how the member states would like to finance the


Two questions: Have you had any assurance from the Cambodian side

that they might call a special session because they're probably not going to

have a regular session until after the election? Number two: What amendments are

needed to the national law?

Certainly I've inquired about this. I haven't

got into the technical details so all I can say is I think that if the General

Assembly has acted separately, and if they manage to take a decision, and if, I

emphasize the word "if", they approve then I think the assembly would be

extremely concerned if there wasn't very speedy action on the behalf of the

Cambodian authorities.

On your second question: Once the agreement is

concluded it is the obligation of both parties to implement it. And for states

when you deal with areas like justice or legal matters this would entail

legislation at the national level.

This is where these negotiations went

wrong in the very beginning. I urged the government in the autumn of 1999 not to

present the draft law to parliament because that would cause problems. You

negotiate, you conclude an agreement, you sign it, then you bring the agreement

and the draft legislation to the legislature.

This I think now is more

clear to the government.

What is the opinion of the UN in case the Khmer

Rouge leaders die before there is a trial?

The request was made in 1997

and the UN said it would do everything we could to assist in this process - and

yet the request was changed and there are several things that could be said

about that, but I think that would be best left to the historians.

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