There have been murmurings recently of potential collapse due to the withdrawal by
international judges and other senior officials from the Extraordinary Chambers in
the Courts of Cambodia (informally known as the Khmer Rouge Tribunal, or KRT), as
a result of the accumulating discontent of political interference since the KRT commenced
in July 2006. According to many KRT watchers, whether foreign judges will pull out
is contingent on the outcome of the Rules Committee currently meeting to hammer out
the long-overdue Internal Rules, a necessary precedent before any senior leader or
those most responsible can be called to the dock.
Article 28 of the Agreement between the United Nations (UN) and the Khmer Government
reserves the right for the UN to withdraw cooperation should the Government "change
the structure or organization of the Extraordinary Chambers or otherwise cause them
to function in a manner that does not conform with the terms of the present Agreement..."
This provision looks good on paper but is purely theoretical, for the UN will never
reach the point where it would "tip" to withdraw from the KRT. A UN judge
(or even several of them) pulling out is different from the UN pulling out.
The Tipping Point
According to Malcolm Gladwell, the tipping point is that "magic moment"
of critical mass when ideas, trends and social behaviors cross a threshold, tip and
spread like an epidemic. It is when change happens not gradually but in one dramatic
moment, and creates a geometric progression whereby the effect seems far out of proportion
to the cause.
Here, the UN does not have a tipping point in its relationship with the Government,
or it has such an extremely high threshold that it is practically nonexistent. In
this regard, Article 28 is only a theoretical provision and not a practical possibility.
The UN will not invoke its right to withdraw from the KRT for several reasons.
Monolithic RGC vs UN of Varying, Conflicting Interests
First, the Government has a monolithic, consolidated voice, whereas the "United
Nations" comprises a myriad of voices, actors and interests, contradicting and
In this regard, who or what is the UN? They are judges, prosecutors and senior officials
from Japan, Canada, France, Britain, New Zealand, etc. Each has their own individual
tipping point of when enough is enough. Each will weigh the risk to their established
reputation, employment needs and financial security, and moral and ethical position.
The UN is also the donors to the KRT - Japan, Australia, Germany, Britain, Canada,
France, inter alia. The tipping point for these donors will be higher than the individual
judges, prosecutors and officials, but again, the tipping point is different for
The UN is also the bureaucracy composed of many personalities and sentiments in the
New York headquarters, influenced not only by the member states' conflicting interests
and goals but also informed by the different civil society organizations, all again
with different thresholds of when they think the UN should tip.
Let's assume a foreign judge or several UN officials do decide to leave the KRT.
Will this act, even of many officials and dramatic, make the UN tip and withdraw?
The answer is highly unlikely because the UN will never be afforded that "magic
moment" of having all the varying interests of the "United Nations"
reach a critical mass, when all the ideas and sentiments of the varying and disparate
actors fused to cross the threshold at the same time, tip and lead to UN withdrawal.
Rumor has it that foreign judges and senior officials have an agreement that if one
should withdraw, they all would withdraw together at once. A very noble effort, but
this threshold will be difficult to reach in reality.
UN Judges, Prosecutors not Political Strategists
Second, the UN judges are not politicians and strategists; they are only that: judges,
brilliant, stellar, full of integrity, I am certain. However, they have been dropped
into the KRT, established within a socio-political context whereby they have little
control or influence. They may be wordsmiths but they are circumscribed by the narrow
legal process; they will not be able to respond in kind to the adept (and often amusing)
political spin of the Government.
A More Confident, Sophisticated Government
Third, the Government may be composed of many of the same individuals as 15 years
ago, but it is no longer of the same quality; this current Government is more sophisticated,
more confident, more versed in pushing its limits and conceding just enough to appease
the international community before it pushes its limits again. This Government is
well-traveled, well-financed, fluent in the international language and culture; it
has children with JDs and PhDs from the best Western schools, and foreign consultants
to make their bidding.
KRT Foremost a Court of Public Opinion
Last, the KRT is first and foremost a court of public opinion. The UN has already
tried pulling out of negotiation and lost the PR/political game when less was at
risk. Now, the momentum is for a trial. US$56 million is at stake. Other hundreds
of thousands of dollars have been committed to outreach work, with the understanding
that there be a trial. Consequently, should the UN withdraw, it will again lose the
PR game in relation to the Government. Hence, sadly, Article 28 is solely theoretical
and will not be taken as a serious leveraging point of the UN. I pray to be wrong.
Theary C Seng
CSD Executive Director
•The Voice of Justice column is a regular feature of the Phnom Penh Post. Both the
column and the logo are expressions of the Center for Social Development (CSD) which
bears full responsibility for the opinions expressed. The CSD Voice of Justice logo
depicts a Cambodian figure pushing aside the black curtains of a repressive past,
as s/he yearns to enter a world of freedom of expression and democracy, represented
by the blue of the inner circle. The scales of justice above the figure show the
supremacy of law, and are in gold, which according to Cambodian mythology stands
for strength, rooted in the earth. The Constitution is placed in front of the figure
to represent the protection it affords. The logo is encircled in pale blue to symbolize
peace, while the two golden naga motifs, which appear on the CSD logo, identify the
Voice of Justice as a program of CSD.