As Cambodia awaits the arrival of yet another team of UN legal experts, the fate
of a future Khmer Rouge tribunal remains as uncertain as ever.
While some analysts are optimistic that a compromise between the Cambodian government
and the world body is moving closer, others point out that the differences between
the two are still large.
Most, however, agree that the Feb 12 agreement between UN Secretary-General Kofi
Annan and Prime Minister Hun Sen in Bangkok is more a sign that none of the parties
want to be seen as the one to break off the talks than an indication of real progress.
After months of draft laws, comments and mutual invitations being sent back and forth
between New York and Phnom Penh, the decision of whether the UN should engage in
further discussions was left up to Annan two weeks ago.
On Feb 8, the secretary-general sent a letter to Hun Sen, forthrightly saying that
the UN would only continue the process if the Cambodians agreed to discuss four specific
issues, out of which three had at least been partially resolved earlier.
In his letter, Annan called for an independent international prosecutor and a majority
of international judges at the tribunal.
These two issues had already been dealt with in the US-brokered compromise from October
last year that stipulated Cambodian/foreign co-prosecution and rulings by super-majority
which would demand at least one of a minority of foreign judges agree with their
Also, the secretary-general pointed out - as "the single most important condition
for the success of the tribunal" - a guarantee that the Cambodian government
will arrest all those indicted by the tribunal. Even though article 33 in the current
trial draft law states that Cambodian police and armed forces must "ensure that
the suspects are brought into custody immediately", the UN wants this guarantee
also set down in an international agreement.
"A Cambodian law is simply not enough. So many Cambodian laws remain unenforced,"
explained a diplomatic source about the background for the UN's emphasis on this
Finally, Annan mentioned that the amnesty clause in the law must be extended to address
amnesties already granted to former KR leaders. This is specifically directed towards
former KR Foreign Minister Ieng Sary, who was granted a royal pardon when he defected
to the government in 1996.
On top of the four legal issues, Annan rejected all criticism that the UN has been
too slow in its responses to the Cambodian government. Instead the letter put the
blame on Phnom Penh for taking three months before it submitted its second draft
law to New York. The harsh tone of the letter has upset some politicians
"It was a very rude letter. We are not the best government in the world, and
we know that. But instead of just criticizing us, why didn't they send somebody here
to help us draft the law. They should have done that a long time ago," said
CPP Senator Chhang Song, who years ago was one of the first to argue for an independent
international tribunal to try former KR leaders.
The wording of Annan's letter has led to speculation that it was a move to provoke
the Cambodian government to break off negotiations. A strong legal focus in its contents
points to heavy influence by the UN Legal Affairs Department, that has long been
rumored to be in favor of abandoning the process.
On the other hand, it could also have been part of a strategy to build up pressure
before the UN-ASEAN conference in Bangkok where both Annan and Hun Sen would be present.
"It is a normal negotiating strategy that before a meeting both parties outline
a strong position. You set your demands very high, so you can later come down and
make concessions. That way both parties look wise and constructive to the public,"
said Ok Serei Sopheak, Director of the Cambodian Center for Conflict Resolution.
Certainly, on his side, Hun Sen was building up pressure, too. During the CPP's biannual
congress on Feb 7-8, the Prime Minister spoke out strongly against UN control of
the tribunal, although in its final declaration, the congress expressed support for
the participation of foreign judges and prosecutor.
After receiving Annan's letter, Hun Sen blasted the UN, saying that the world body
only wanted Cambodia to be a "dog guarding a house that belongs to someone else".
However, he chose to further discuss the matter with Annan in Bangkok, instead of
simply breaking off the negotiations as some may have expected.
One government source notes that the Prime Minister's reaction may not solely be
because he doesn't want to be seen as the one who terminated the UN's involvement
in the process:
"Somehow, both he and many CPP hard-liners have realized that they have to make
a deal with the UN. They have to move forward on this matter. There are so many other
important issues facing the country before the next election and they cannot let
the question of a trial spoil everything else. It has to be resolved this year, so
they are ready to make concessions," said the source.
Whether Hun Sen made concessions during his meeting in Bangkok with Annan is unknown.
But an agreement was made to send a UN delegation to Cambodia to continue the talks.
The arrival date of the team has not yet been determined, but it is believed that
the delegation will consist of both political and legal officers.
"This is a long drawn out process with high stakes which are political and not
legal. Therefore we need someone with a good feel for political realities to head
the team," said the diplomat.
Meanwhile, the Legislative Committee of the National Assembly is still reviewing
the current tribunal draft law. The law was initially scheduled to be debated in
the Assembly on Feb 14, but according to committee chairman Mohn Sophan, more time
is needed for examination of the text.
Sophan has invited the public to submit comments on the draft law that will be taken
into consideration during the committee's work. So far, he has received three commentaries
from NGOs, including one from the Center for Social Development (CSD).
CSD is currently preparing its second public forum on 'National reconciliation and
the Khmer Rouge'. The forum will be held in Phnom Penh on Feb 24 and is expected
to draw a crowd of 180 people including MPs, monks, nuns and laymen.
At CSD's previous public forum, held in Battambang on Jan 27, a substantial delegation
of former KR cadres from Pailin and Phnom Malai were among the participants who debated
the pros and cons of a KR tribunal or other means of achieving national reconciliation.
It is still uncertain whether they will also take part in the forum in Phnom Penh.
"Former KR cadres in Phnom Penh have declined to participate, and I have not
yet heard from the people in Pailin and Malai. After our last forum I urged them
to come to Phnom Penh, too, although I warned them that it would be harder than in
Battambang," said CSD President Chea Vannath.
According to Ok Serei Sopheak, it is crucial that the former KR continue their opening
up and facing the victims of the brutal 1975-79 regime that left at least 1.7 million
dead. He, himself, recently initiated the first informal meetings between former
KR and non-KR officials.
"Of course, we need a trial. But we also need some kind of truth process, where
the former KR stand forward and explain and sincerely acknowledge their mistakes,"
"It will not be a formal process like the Truth and Reconciliation Committee
in South Africa and it will have to happen step-by-step, first with informal gatherings,
then smaller public forums like the ones we see now and possibly expanding to radio
and TV broadcasts that the whole nation can watch."
"I think right now, the former KR are making assessments of whether this is
positive or negative to them. But this process is very important for all Cambodians,
so my message to the former KR is: please continue to open up and reach a bigger
audience. That way, one day, people will see you differently and you will no longer
be called Khmer Rouge, only Khmer."