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
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.
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.
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
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
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?
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.
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.
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
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
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.