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

the UN.

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

was unconstitutional."

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

Corell himself.

"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

negotiations.

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

liaison role.

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

4-17, 1996].

Tom Fawthrop is a longtime London Sunday Times Cambodia correspondent who is

conducting research for a book titled "The Cambodia Genocide: The Long Quest

for Justice".