A Phnom Penh-based senior diplomat asserted this week that "there are no substantive
differences" between the contents of the recently-passed Khmer Rouge law and
the agreement negotiated by the UN in spite of the strongly-worded Jan 9 letter from
UN Chief Legal Counsel Hans Corell virtually demanding a "no bar to prosecution"
clause to clarify the status of Ieng Sary's amnesty.
In the continuing legal ping-pong between Phnom Penh and the UN, the question of
whether the King's 1996 pardon and amnesty of Ieng Sary ( Pol Pot's foreign minister)
prevents him from being prosecuted has become a central issue.
The Cambodian task-force and diplomats believe the issue of whether Ieng Sary, as
one of the surviving senior Khmer Rouge leaders, could be indicted to stand trial
was resolved long ago in meetings with the UN legal panel.
Other points raised in the letter from the UN's legal chief are matters that observers
say can and should be clarified in the UN Articles of Cooperation with the Cambodian
government once the law has been finally promulgated .
UN spokesman Fred Eckhard has suggested the current review of the applicability of
the 1956 Penal Code and its penalties provides the opportunity for the Cambodian
lawmakers to address UN concerns so strongly expressed by Hans Corell.
A European diplomat had no doubts at all that "all the points that need to be
resolved are resolvable".
The US embassy in Phnom Penh considers it as a misconception that all differences
need to be ironed out in the law now. According to Ambassador Kent Wiedemann, these
matters are most likely to be sorted out in the memorandum to be signed later with
Hans Corell's Jan 9 insistence that the law should specifically adopt the phrase
"that no amnesty shall be a bar to prosecution" is viewed by legal observers
as an extraordinary call for Cambodian law-makers to violate their constitution which
accords a constitutional prerogative to the King to grant amnesty.
"I am frankly surprised that the UN is trying to nullify the amnesty of the
king,"a senior diplomat commented. "This is something that a parliament
can't do. I think Corell has legally screwed up."
An international lawyer and former NGO consultant in Phnom Penh took the same view
that "...Corell in his letter was exhorting the Cambodians to do something that
Why then is the UN legal panel now raising the issue of further clarification? It
appears to have more to do with the prime minister's well-publicized speeches invoking
the prospect of renewed civil war in the event that Ieng Sary is prosecuted rather
than a matter of legal necessity.
Hun Sen's posturing over the advisability of prosecuting someone who is widely regarded
to fall within the definition of those who should be in the dock have apparently
alarmed Hans Corell's team.
However diplomatic observers are less sanguine and more accustomed to the conflicting
signals of a prime minister who claims much of the credit for dismantling the Khmer
Rouge and ending the insurgency in 1998.
The Prime Minister's statements have provoked the UN legal team to nervously insist
on extra clarification of the terms of their agreement with Cambodia over a KR trial.
That insistence violates Cambodia's constitution by advocating the nullification
of the king's amnesty on the basis that such a move was an agreed condition for UN
co-operation with the trial but deliberately left out of the law that passed Cambodia's
legislative branch in January.
In his Jan 9 letter Corell warned that "It is important that this is abundantly
clear...for the UN this is a determining factor when it ultimately has to decide
on its cooperation with the Royal Government."
But according to a senior diplomat, Corell admitted in the covering letter that the
phrasing "shall not be a bar to prosecution" had in fact been unilaterally
inserted into the agreement by the UN. The Cambodian taskforce maintains they had
never at any time agreed to that particular phrasing regarding the tribunal's rejection
of a Royal Amnesty.
All this indicates a critical communication gulf between Cambodian government officials
and interested diplomats in Phnom Penh and UN personnel in New York. That gap is
continuing to breed misconceptions and legal confusion.
Part of the blame for this gulf in understanding can apparently be shouldered by
"Hans Corell is a highly capable lawyer ,but he is not the easiest of people
to deal with," a European diplomat commented. "There is a danger of misinterpreting
his body language."
Certainly the tone of his last abrasive letter came across to the Cambodian side
as at best patronizing, while some complained of "neo-imperialism of the UN
trying to tell us what to do with our own constitution.".
Chea Vannath, Executive Director of the Centre for Social Development (CSD) strongly
sees the need for closer co-operation between the two sides.
"I think the UN and Cambodian government should work more closely together,"
she said. There should be a joint working group here in Phnom Penh instead of both
teams working separately and pointing accusing fingers at each other."
During nearly two years of legal drafting, complex negotiations and mutual compromise
there have been long periods with no contact and no liaison between UN legal team
in New York and working party deliberations in Phnom Penh.
Back in 1997-98 the Cambodian Office of the UN High Commission for Human Rights under
Acting Director David Hawk provided crucial liaison with New York in the early tribunal
Since Hawk, a UN official with specialist knowledge of Khmer Rouge Tribunal issues,
finished his assignment in Phnom Penh the UNHCHR has ceased providing any on-the-ground
Given the legally ambitious nature of setting up the world's first ever "mixed
tribunal", widely touted as paving the way for a "Cambodian model"
for future tribunals, diplomats here are astounded that the UN legal team in faraway
New York has never understood the need for a Phnom Penh-based UN liaison person.
What the PM said - "If you study the wording of the Royal (amnesty),
you will see there is still a possibility to try the crimes committed by Ieng Sary.
We paid much attention to the wording of the pardon...there are no words in it that
ban charges against Ieng Sary in front of a court that may be formed in the future.
Therefore we should speed up the investigation of the crimes of Pol Pot so that we
can bring all of those responsible to justice." - Prime Minister Hun Sen.
"An amnesty granted to any person falling within the jurisdiction of the Chambers
shall not be a bar to prosecution." - From July 7 draft law agreement.
UN Position: This sentence was agreed as part of the negotiated draft.
Amnesty: The KR law deal breaker?
Cambodian Position: This sentence was inserted after the negotiations as
confirmed by Hans Corell in a July 7 cover letter. It is contrary to the Cambodian
Constitution and never approved by the Cambodian taskforce.
What was agreed was "no one would be exempt from the scrutiny of investigating
judges and prosecutors".
The Absurdity: Both sides have agreed with the principle that there is
no legal obstacle to the prosecution of any former senior KR leaders. Sok An, Chairman
of the Cambodian KR tribunal taskforce has made specific written assurances that
there are no exceptions and no exemptions to the investigation and indictment process.
The Ieng Sary Factor
Former Khmer Rouge Foreign Minister Ieng Sary inhabits a unique category of criminal
law. The 1979 People's Tribunal sentenced both Pol Pot and Sary to death in absentia.
In 1996 Sary led the defection of Pailin's KR forces to government control, prompting
Hun Sen to recommend that King Sihanouk grant Sary an amnesty and a pardon.
The amnesty was carefully crafted to apply only to his past conviction on genocide
and has no bearing on other charges that may be filed under the KR tribunal law.
Ieng Sary has never been promised or granted any general immunity from prosecution
- a point Prime Minister Hun Sen has himself confirmed in a Post interview [October
Tom Fawthrop is a longtime London Sunday Times Cambodia correspondent who is
conducting research for a book titled "The Cambodia Genocide: The Long Quest