WITH the United Nations and the Cambodian government finally in agreement over
the shape of a future Khmer Rouge tribunal, events in Sierra Leone seem to have
slowed down the process.
The government is awaiting written confirmation
from UN Secretary-General Kofi Annan that the UN accepts the trial compromise,
brokered by US Senator John Kerry earlier this month. But dealing with the
crisis in Sierra Leone, where UN peacekeepers have come under fire from rebel
forces, may have delayed the UN response.
However, a tribunal deal now
seems fairly safe. During his negotiations with Prime Minister Hun Sen, Kerry
secured a compromise on the last remaining major obstacle, namely the
prosecution issue. Kerry also presented the compromise to UN
Undersecretary-General Hans Corell, who reportedly received it
Next step after a written UN response will therefore be the
National Assembly's approval of the tribunal draft law. Whereas the government
can agree with the UN on the principles of the trial, it cannot sign a formal
agreement until the law is passed in parliament.
Observers have raised
doubts whether the parliamentarians will accept the current tribunal proposal.
Some fear that Hun Sen will try to influence Assembly members to amend the law
according to his own wishes, thus disclaiming responsibility for a final
tribunal law that deviates from the agreement with the UN.
At the end of
his visit, Kerry said if the National Assembly doesn't adhere to the agreed
framework, UN participation in the tribunal could still be at stake.
Sen initially promised to have legislation ready for UN approval by June 15, but
officials recently predicted that the National Assembly debate was not likely to
begin before that.
One issue that may be changed during the debate and
that the UN reportedly also wants to have a second look at is the definition of
who the tribunal should target.
Article 1 of the current draft law reads
that the purpose is to "bring to trial senior leaders of Democratic Kampuchea
and those who were responsible for serious crimes and serious violations ...
which were committed during the period from April 17, 1975, to January 6, 1979".
Some, however, feel that this definition is too loose and will be difficult to
Director Youk Chhang of the Documentation Center of Cambodia
(DC Cam) recently suggested a re-phrase of the text to define those eligible for
prosecution as leaders of the Democratic Kampuchea's Central and Standing
Committees 1975-1979. The proposal has sparked debate among scholars as to who
were members of the two committees and when the committees actually existed (see
letter page 14).
The question of who should be targeted by the tribunal
remains sensitive, due to amnesty deals the government has struck with former KR
leaders during the past years. Also, several government members have a past in
the Khmer Rouge.
Main elements of the current
UN-Cambodian agreement on a KR tribunal:
- Competence: Senior leaders of Democratic Kampuchea and those responsible for
crimes and serious violations committed between April 17 1975 and January 6
- Crimes/charges: Genocide, crimes against humanity, war crimes, destruction
of cultural property, crimes against internationally protected persons.
- Composition: A three-tiered system with a trials court, an appeals court and
a supreme court.
- Judges: Five judges in the trials court, of which three are Cambodian and
two are foreign. Seven judges in the appeals court, of which four are Cambodian
and three are foreign. Nine judges in the surpreme court, of which five are
Cambodian and four are foreign.
Cambodian judges are appointed by the Surpreme Council of Magistracy. UN
Secretary-General Kofi Annan can object to appointments. Foreign judges are
selected by Annan and formally appointed by the Surpreme Council of
Judges rule by supermajority.
- Prosecutors: Co-prosecution with one Cambodian prosecutor and one foreign
prosecutor who indict unanimously. In case of disagreements, a 'review board' of
five judges (three Cambodian and two foreign) decides whether a suspect should
- Investigating judges: Co-investigating judges, one Cambodian and one
- Penalties: Five years to life imprisonment.