Paper presented by Ambassador Thomas Hammarberg, former Special
Representative of the UN Secretary-General for Human Rights in Cambodia, at a
seminar in Stockholm on May 29, 2001 organised by the Swedish Institute of
International Affairs and the Swedish Committee for Vietnam, Laos and Cambodia
on the proposed trial against Khmer Rouge leaders responsible for crimes against
humanity.Views expressed in the paper are personal and may not reflect the
opinions of others involved.
Already during my first mission to Cambodia (June 1996) it became clear to me
that the Khmer Rouge crimes in the 1970's still cast a paralysing shadow over
Cambodian society. The killings of educated professionals had left gaps that
still crippled the judiciary, the government administration, including the
health and education structures. The moral impact was even more profound. The
fact that no one had been held accountable for the mass killings and other
atrocities had clearly contributed to the culture of impunity which was still
pervasive in Cambodia.
Wherever I went in Phnom Penh or in the provinces I made a point of
discussing the Khmer Rouge legacy and what ought to be done. One message became
clear: the crimes were not forgotten. Almost everyone I met was personally
affected, had suffered badly and/or had close relatives who died. Even now, more
than two decades later, the overwhelming majority wanted those responsible to be
tried and punished. The only argument against arrests and trials was the risk of
further unrest and civil war. However, I heard many voices saying that not even
that should be accepted as a reason to avoid seeking justice.
Decision-makers, almost without exception, had emotional and painful memories
of the Democratic Kampuchea period in the seventies. King Sihanouk had tried to
reason with the Khmer Rouge, been humiliated and even had family members killed.
Hun Sen and several of his CPP colleagues had joined the Khmer Rouge movement,
and had later defected to the Vietnamese side. Several of them had also lost
family members. It is important to recognise this dimension of the Cambodian
drama in order to understand the apparent inconsistencies in the discussion
outlined below.
The issue of justice became even more acute in 1996 as the Khmer Rouge
movement drifted into crisis. Though some military activity still continued
along the border in the north and north-west and bandit raids plagued villages
and fishing communities (not least those with ethnic Vietnamese inhabitants),
there were clear signs of breakdown.
Both FUNCINPEC and CPP initiated tentative contacts with segments of the
Khmer Rouge movements. They both offered generous conditions: continued control
over some territory, autonomy, resources, good positions also within the
military ranks and de facto amnesties. This had an impact. In August 1996, the
former Khmer Rouge Deputy Prime Minister for Foreign Affairs Ieng Sary defected
with a couple of thousand soldiers and split the Khmer Rouge movement.
This led to a contradictory situation. First, it became obvious that it would
no longer be possible to avoid a real discussion about justice - and about
international standards. The process organised in 1979 by the
Vietnamese-dominated administration had been flawed and there was a consensus
that this exercise had not provided the ultimate legal response to the crimes
committed.
The second phenomenon was the competition between the two major parties in
Phnom Penh to attract defectors into their ranks. In military terms the CPP had
had the upper hand since the large UN peacekeeping mission, known as UNTAC, had
left in late 1993, but there was a possibility that a flow of defecting Khmer
Rouge troops into FUNCINPEC might change that. Hence, the disintegration of the
Khmer Rouge heightened the tensions within the coalition government. Clearly,
both Prime Ministers, the FUNCINPEC-leader Prince Norodom Ranariddh and the
CPP-leader Hun Sen, hesitated to push for a Khmer Rogue trial in this
situation.
However, the amnesty given to Ieng Sary in September 1996, in the name of
"national reconciliation", was controversial. The two Prime Ministers had
requested the King to grant an amnesty - which he did. However, Prince Ranariddh
told me afterwards that he really did not want to support the amnesty request
but, as Hun Sen had insisted, he had agreed in the end.
Even within the CPP there was considerable unhappiness about the amnesty. Hun
Sen, for his part, later explained to me that the purpose of the amnesty was to
encourage more defections. Also, the amnesty decree for Ieng Sary had been
deliberately formulated so that it protected him only against the punishment
meted out at the 1979 tribunal (death sentence) and the possibleprosecution for
having violated a 1994 law banning Khmer Rouge activities. Though this did lead
to more defections, there would remain an unclarity about nature of the amnesty
given to Ieng Sary and whether he was protected - or not - against being
indicted in a genuine trial for his actions in the 1970's.
Commission resolution
What was the UN position on a trial? In order to start the process of
clarifying this, I suggested informally during the UN Commission on Human Rights
session in April 1997 that a paragraph be included in the Cambodia resolution.
The paragraph should mention the possibility of international assistance to
enable Cambodia to address past serious violations of human rights. The
Commission included the following in its Cambodia resolution 1997/49 on 11 April
1997: "Requests the Secretary-General, through his Special Representative for
Human Rights in Cambodia, in collaboration with the Centre for Human Rights, to
examine any request by Cambodia for assistance in responding to past serious
violations of Cambodian and international laws as a means of bringing about
national reconciliation, strengthening democracy and addressing the issue of
individual accountability".
The June 1997
letter
In June 1997 I discussed the implications of the resolution with the two
co-Prime Ministers and pointed out that the UN might respond positively to a
request for assistance so that the Khmer Rouge crimes would at long last be
addressed. I first approached Prince Norodom Ranariddh as he had appeared to be
hesitant about the effects of the tribunal discussion on his possibilities to
attract defectors. This was also a period when the relationship between the two
leaders was at a low ebb - the government was next to paralysed.
The Prince agreed to sign such a request but asked me to draft the letter for
him. I said I was willing to give him such technical help but the letter should
be considered as his and Hun Sen's. The same afternoon he had the proposal and
signed it. I reported these developments to Hun Sen during our subsequent
meeting. He said that he of course would sign, that to defeat the Khmer Rouge
had for him been a lifelong battle.
On 21 June 1997 a letter went off to the Secretary-General asking: "for the
assistance of the United Nations and the international community in bringing to
justice those persons responsible for the genocide and crimes against humanity
during the rule of the Khmer Rouge from 1975 to 1979".
The letter further stated: "Cambodia does not have the resources or expertise
to conduct this very important procedure. Thus, we believe it is necessary to
ask for the assistance of the United Nations. We are aware of similar efforts to
respond to the genocide and crimes against humanity in Rwanda and the former
Yugoslavia, and ask that similar assistance be given to Cambodia."
"We believe that crimes of this magnitude are of concern to all persons in
the world, as they greatly diminish respect for the most basic human rights, the
right to life. We hope that the United Nations and the international community
can assist the Cambodian people in establishing the truth about this period and
bringing those responsible to justice. Only in this way can this tragedy be
brought to a full and final conclusion."
This letter since then figured in every discussion between the UN and the
Cambodian government on the Khmer Rouge issue. When received in New York it was
circulated to the members of the Security Council, but it became instantly
obvious that it was controversial. The Chinese delegation made clear that it did
not want to put the topic on the Security Council agenda. I met with the Office
of Legal Affairs in the UN Secretariat and suggested that a Secretariat approach
be prepared.
In essence, the initial response from both the leading Member States and from
the Secretariat was unenthusiastic and somewhat confused. One political factor
might have contributed. In early July the tensions between the two coalitions
parties in Phnom Penh - and armed troops on both sides - had exploded in a
military confrontation. Forces loyal to CPP had started disarming the other
side. The Second Prime Minister emerged victorious after having staged a
decisive coup. Prince Ranariddh, who had just slipped out of the country, was
declared as ousted by Hun Sen. FUNCINPEC party headquarters were raided and its
files confiscated. The opposition Khmer Nation Party - headed by the former
Finance Minister Sam Rainsy - suffered the same treatment. The National Assembly
was temporarily closed and non-CPP radio and television stations were closed or
taken over. Throughout July and August the UN received and investigated numerous
reports of FUNCINPEC military officers having been systematically killed.
One of the declared excuses for this clampdown was that Prince Ranariddh had
had secret contacts with Khmer Rouge leaders and that he had brought a great
number of Khmer Rouge soldiers to Phnom Penh (in fact there were some defectors
among the troops on both sides in Phnom Penh; and it was never convincingly
shown that FUNCINPEC had brought in significant numbers).
At the same time, the disintegration of the Khmer Rouge movement had speeded
up. In June Son Sen, the former Deputy Prime Minister for Defence, had been
killed together with his family, on orders from Pol Pot. It became obvious that
the remaining leadership was falling apart in a bitter internal struggle.
Brother Number One himself was tried by a "people's court" close to the Thai
border in late July and sentenced to lifelong detention. More defections were
now to be expected, and there were fears that this would increase the tensions
between the major parties even more.
How would these dramatic developments affect the sensitive dialogue with the
United Nations on co-operation for bringing the Khmer Rouge leaders to justice?
Was the 21 June request still backed by the key parties?
The 1997 General Assembly
My next meeting with Hun Sen was held in early September. It naturally
focused on the memorandum I had just submitted to the government on the
post-coup killings. In spite of the inevitable confrontation on that subject,
Hun Sen clarified that the 21 June letter was still valid, as did other CPP
leaders I met, including the party chair and President of the National Assembly,
Chea Sim and the Deputy Prime Minister and co-Minister of Interior, Sar
Kheng.
King Sihanouk gave full support to the efforts on the Khmer Rouge issue
outlined in my General Assembly report, telling me that if this initiative was
not pursued, there would never be an end to impunity in Cambodia. He added that
he himself was willing to be called to a tribunal to explain his own
relationship to the Khmer Rouge regime. "This is my duty", he said.
Later in September I met Prince Ranariddh, and the other leaders of the
post-coup opposition in a hotel room in New York. They were there to present
their case to the international community and to lobby for a General Assembly
decision that Norodom Ranariddh be recognised as the legitimate representative
of the Cambodian government - or that Cambodia should be deprived of its seat in
the Assembly (the latter became the decision). The leader of Khmer Nation Party,
Sam Rainsy, and the leader of BLDP-Son Sann, Son Soubert, were present.
Referring to my recent meeting with the King, I asked for their assurance that
the recent political developments had not changed their position of support for
the 21 June letter. After a moment of silence, the Prince solicited the views
from the politicians in the room. One by one they nodded in support and the
Prince then summarised their unanimous assent.
As a strange historic coincidence, the issue that could have become deeply
divisive, turned out to be the only one on which all political forces now
agreed. On that basis I urged the General Assembly to respond positively and
generously to the Cambodian request for assistance.
How should the process start? It was clear that it was premature at this
stage to recommend one particular model, for instance an ad hoc tribunal similar
to the one on former Yugoslavia in the Hague. There was a need for an
intermediate step to allow for some informed discussion about the nature and
scope of the crimes, the status of evidence, what law to apply and the most
suitable process. It was already now obvious that it was important to discuss in
some depth the interrelationship between domestic and international aspects.
In the case of former Yugoslavia a Commission of Experts had been appointed
to assemble and assess evidence before the tribunal had been set up. A similar
commission had been established in the case of Rwanda whose task included giving
recommendations on ways to achieve accountability. In the Khmer Rouge case the
task would need to be somewhat different - with more emphasis on giving advice
on the best process. The term "Commission" would need to be avoided in order not
to give the impression that the model of former Yugoslavia was used. As a first
step, I therefore recommended to the General Assembly - not the Security Council
- that the Secretary-General be authorised to appoint experts to evaluate the
existing evidence of responsibility for the Khmer Rouge human rights violations
and propose further measures.
This is how the point was covered in the General Assembly resolution on 12
December 1997 on Cambodia (52/135):
"Desiring that the tragic history of Cambodia requires special measures to
assure the protection of the human rights of all people in Cambodia and the
non-return to the policies and practices of the past, as stipulated in the
Agreement signed in Paris in 1991;
...
Endorses the comments of the
Special Representative that the most serious human rights violations in Cambodia
in recent history have been committed by the Khmer Rouge and that their crimes,
including the taking and killing of hostages, have continued to the present; and
notes with concern that no Khmer Rouge leader has been brought to account for
these crimes;
Requests the Secretary-General to examine the request by the Cambodian
authorities for assistance in responding to past serious violations of Cambodian
and international law, including the possibility of the appointment, by the
Secretary-General, of a group of experts to evaluate the existing evidence and
propose further measures, as a means of bringing about national reconciliation,
strengthening democracy and addressing the issue of individual
accountability."
In January 1998 the High Commissioner for Human Rights, Mary Robinson,
visited Cambodia. She discussed the General Assembly resolution with Government
representatives and noted that the international community had responded
positively to its request for assistance in addressing the gross violations
committed during the Khmer Rouge regime 1975-79. The Government welcomed the
proposal to appoint a team of experts to evaluate the existing evidence and
propose further measures.
The formulations in the General Assembly resolution
were also included in the resolution on Cambodia adopted by the 1998 Commission
on Human Rights on 17 April.
Renewed
support
The death of Pol Pot on 15 April 1998 was a reminder that time was running
out; other Khmer Rouge leaders were ageing and might have health problems.
After the reports on the "trial" of Pol Pot near Anlong Veng in July 1997,
the US government worked on a scheme to capture Pol Pot at the Thai-Cambodian
border and to bring him to another country for trial. The Thai government was
said to have agreed to co-operate with this plan (though Thai representatives
gave me a somewhat different version). I was also informed that Canada, Denmark,
Sweden and Israel, among others, had been approached by US representatives about
hosting such a trial. The UN was not formally informed about these diplomatic
activities and I was personally critical of the way the plan was pursued. In the
end no country was prepared to host this type of trial.
In April, two weeks
after Pol Pot's death, the US delegation at the United Nations circulated a
draft Security Council resolution which, if adopted, would have established an
ad hoc tribunal in the Netherlands, modelled on the tribunal on former
Yugoslavia. China was clearly negative and it was reported that also Russia and
France had problems with the US initiative.
During my mission to Cambodia in April-May 1998, I again discussed the
tribunal issue in detail with Hun Sen, who affirmed that he was still behind the
request in the 21 June 1997 letter. He stated that it was important that the
Khmer Rouge leaders at long last were brought to justice, but felt that recent
US activities had complicated the situation.
On a more concrete level, he talked about a plan of his to arrest "the three"
(I understood him to refer to Noun Chea, Khieu Samphan and Ta Mok), which had
been disturbed by the recent publicity. Regarding Ieng Sary he repeated that the
amnesty decree was formulated in a way that did not protect him from new
procedures relating to genocide. In fact, he said, he had convinced Ieng Sary to
be available if an international tribunal was set up.
However, he raised two problems. First, there was a risk that public
discussion at this particular time about bringing Khmer Rouge leaders to a
tribunal would discourage further defections. He made clear that he was still
working on the remaining Khmer Rouge units in order to convince them to give up
fighting. The other problem was the risk that a public debate on this matter
would disturb the campaign for the 1998 elections (to be held in late July). I
explained that a systematic analysis of evidence and options for proceedings
would take some time and that a proposal could not be ready before later in the
autumn, if then.
He said he would welcome the arrival of a group of experts and was willing to
appoint some Cambodians to dialogue with the experts. He underlined that the
group should not be bound in advance by a particular solution, for instance,
that the tribunal would be an extension of the existing Hague tribunal. Neither
would he want it to be decided at this time that the proceedings must take place
in Cambodia. This aspect should remain open for the moment and be analysed by
the experts before decisions are taken.
At the end he repeated his support for the approach developed through the
General Assembly resolution and afterwards. He said - with an obvious reference
to a suggestion at the time from the US - that he did not think it was necessary
that he wrote a second letter with the same request. Such a move would also have
raised the complicated issue of who should sign the letter together with him;
the legitimacy of the new First Prime Minister, Ung Huot, was not recognised by
many. "I ask you to convey my position to the Secretary-General", he said.
He also repeated that he hoped there would not be much publicity at this
stage about the issue.
Prince Ranariddh, whom I met in Bangkok, stated that
the June 1997 letter was still valid and that he stood firmly behind it. He said
he wanted to give his full support to our efforts and to the idea of bringing a
group of experts to Cambodia in order to assess the evidence and propose further
measures. He agreed that the experts should look into all possible options, but,
personally, he felt that the best option probably was an international tribunal
in the Hague.
During this mission I met the King again. He said that he gave full support
to the idea of a tribunal and international co-operation on the issue. "This has
to be done", he said. I explained the step-by-step approach and the point of
analysing carefully the nature of existing evidence and the various possible
modalities for the proceedings themselves. He affirmed that he was in full
agreement.
I raised this issue also with co-Minister of Interior Sar Kheng
and opposition politicians Sam Rainsy and San Soubert. They all gave an
unequivocal answer of support and said that some proceeding indeed was
important. Sar Kheng said he had been against giving amnesty to Ieng Sary and
hoped that the latter could be brought to justice.
One thing was emphasised in several conversations: that the Cambodians wanted
to be a full party to this discussion. "After all, this is our problem", it was
often said. The possibility of organising a tribunal inside Cambodia with
international staff (including judges and prosecutors) - but in co-operation
with Cambodia - was clearly an option to analyse. Otherwise, the Cambodian
representatives were generally open-minded about the approach to take. The idea
of a Group of Experts as a first step seemed to be generally appreciated.
Hun Sen had spoken at some length about a "package" into which other crimes
ought to be included, such as the American bombings in the early 1970's and the
Chinese support for the Khmer Rouge. This was a theme to which he was to return
several times during our forthcoming discussions - and sometimes also publicly.
Though I would not deny that there was a historical context, I had to stress
that the Khmer Rouge atrocities were unique in character. Indeed, the letter Hun
Sen had signed in June 1997 was precise both on the time period and the
particular crimes to be addressed. To widen the scope would be a recipe for no
result on the whole issue.
At the end of this particular discussion in May 1998 he seemed to conclude
that it would be advisable to limit the period to cover only April 1975 to
January 1979.
The Group of Experts
The fact that Hun Sen had publicly embraced a defected Khmer Rouge leader
caused some sarcastic comments among opposition politicians during the election
campaign in June-July 1998. At the same time, CPP alleged that Prince Ranariddh
had some relationship with remaining Khmer Rouge forces under Ta Mok and Khieu
Samphan. This point was amplified in the more rough party propaganda: both
Ranariddh and Sam Rainsy were accused of collaboration with the Khmer Rouge.
Diplomats in Phnom Penh were very interested in the Khmer Rouge issue. During
each mission I met them individually or as a group to give information on my
meetings. On some occasions I also stopped over in Bangkok to brief those
ambassadors who covered Cambodia from there. From the very beginning I benefited
from the exchanges with Japan and the ASEAN countries. In May 1998 I formally
introduced the subject to the then chair of the ASEAN troika, Foreign Minister
Siazon of the Philippines. Deputy Foreign Minister Sukhumbhand of Thailand also
showed particular interest.
In July 1998 the Secretary- General appointed the
Group of Experts mentioned in the 1997 Assembly resolution. Sir Ninian Stephen
(Australia), Mr. Rajsoomer Lallah (Mauritius) and Professor Steven Ratner (US)
were requested (a) to evaluate the existing evidence with a view to determining
the nature of the crimes committed by the Khmer Rouge leaders in the years
1975-79; (b) to assess, after consultation with the Governments concerned, the
feasibility of bringing Khmer Rouge leaders to justice, their apprehension,
detention, and extradition or surrender to the criminal jurisdiction
established; and (c) to explore options for bringing to justice Khmer Rouge
leaders before an international or national jurisdiction.
The Group met in New York in August for a briefing by myself and the
Secretariat and for discussions with some of the UN delegations. Due to the
political turmoil in Cambodia after the July elections it was decided to
postpone the mission to Phnom Penh until 14-24 November. It then met government
officials, representatives of the judiciary, non-governmental groups, diplomats
and other experts. They visited the Cambodian Documentation Center, the National
Archives and the Tuol Sleng museum (the previous school in Phnom Penh where the
Khmer Rouge opened an interrogation centre and to which at least 16,000 people
were brought for questioning and thereafter execution). Though the three experts
were accompanied by a representative of the Office for Legal Affairs, it worked
independently of the Secretariat and myself. My only advice to them was to
explore with care the possibility of a strong "Cambodian component" in the
process, including the option of holding the trial in Cambodia itself. The Group
met again, in privacy, in January and submitted its report to the
Secretary-General on 22 February 1999.
The Group concluded that the evidence gathered to date showed that serious
crimes had been committed under both international and Cambodian law and that
sufficient evidence existed to justify legal proceedings against Khmer Rouge
leaders for these crimes. The crimes included crimes against humanity, genocide,
war crimes, forced labour, torture, crimes against internationally protected
persons, as well as crimes under Cambodian law.
The Experts reported that the feasibility of apprehending Khmer Rouge leaders
depended on the ability and the willingness of the Government, in whose
territory suspects are located, to arrest or extradite them. They concluded that
the Cambodian Government was able to apprehend Khmer Rouge leaders in its
territory whose location was known and who were not protected physically from
arrest. In their meeting in November 1998 with Prime Minister Hun Sen, he
expressed the Government's willingness and readiness to apprehend any person
indicted by the independent prosecutor of the tribunal. The Thai government had
expressed similar willingness.
The Experts analysed the following legal options for bringing to justice
Khmer Rouge leaders:
- a tribunal established under Cambodian law in a domestic court;
- a tribunal established by the Security Council or the General Assembly as an
ad hoc international tribunal;
- a hybrid option of a Cambodian tribunal under UN Administration;
- an international tribunal established by a multilateral treaty; and trials
in third States.
Having considered these options, the Experts recommended that the United
Nations, in response to the request of the Cambodian Government, should
establish an ad hoc international tribunal to try Khmer Rouge officials for
crimes against humanity and genocide committed from 17 April 1975 to 7 January
1979. They recommended that the Security Council should establish the tribunal
or, should it not do so, that the General Assembly should do so. They also
proposed that the Prosecutor of the International Tribunal for the Former
Yugoslavia and of the International Criminal Tribunal for Rwanda serve as the
Prosecutor of the new tribunal, with a Deputy Prosecutor specifically charged
with direct responsibility for this tribunal.
The Experts, furthermore, recommended that the tribunal, including the office
of the Deputy Prosecutor, be established in a State in the Asia-Pacific region,
but not in Cambodia; that the Prosecutor establish an investigations office in
Cambodia; and that the United Nations, in co-operation with the Cambodian
Government, arrange for the unfettered dissemination of the proceedings in
Cambodia by radio and television.
They also recommended that, as a matter of prosecutorial policy, the
prosecutor limit his or her investigations to those persons most responsible for
the most serious violations of international human rights law. This would
include senior leaders with responsibility for the violations as well as those
at lower levels who were directly implicated in the most serious atrocities.
The Experts emphasised that the list of top governmental and party officials
in Democratic Kampuchea might not correspond with the list of persons most
responsible for serious violations of human rights. Certain top governmental
leaders might have been removed from knowledge and decision-making while others
not in the chart of senior leaders might have played a significant role.
This seems especially true, the Experts wrote, with respect to certain
leaders at the zone level, as well as officials of torture and interrogation
centres such as Tuol Sleng. The Experts recommended that the prosecutor exercise
his or her discretion regarding investigations, indictments and trials so as to
fully take into account the twin goals of individual accountability and national
reconciliation in Cambodia.
Another of their recommendations was that the
UN, in co-operation with the Cambodian Government and the non-governmental
sector, encourage a process of reflection among Cambodians to determine the
desirability and, if appropriate, the modalities of a truth-telling mechanism to
provide a fuller picture of the atrocities of the period of Democratic
Kampuchea.
Negative government reactions
While the Experts were working on their recommendations, further defections
had been announced. In late December 1998 Hun Sen received two key leaders from
the Khmer Rouge, Nuon Chea and Khieu Samphan, in his residence outside Phnom
Penh. Ieng Sary was present and seemed to have acted as an intermediary. In a
symbolic sense this was a major event in Cambodian modern history. Though there
was no doubt that the two old men had capitulated and came to pay their respect,
Hun Sen appeared to turn the occasion into one of reconciliation and
forgiveness. His statements were controversial and even took some of his
ministers by bitter surprise. One metaphor he used was that "the time had come
to dig a hole and bury the past" which appeared to be at odds with his support
for a tribunal and the principle of justice.
Had there been a change of heart? Or had a price been paid for these crucial
defections? Hun Sen now stressed the importance of putting an end to civil war,
that there might be a conflict between a trial and peace. When I met him in late
January 1999 he handed me a memorandum for the Secretary-General, which raised
the problem of maintaining peace while seeking justice. The memorandum also
referred to the desirability of addressing crimes committed before 1975 and
after 1979. The purpose of this memorandum was not clear to me. When I sought
clarification he said that these points were only additional aspects for
consideration by the Experts but should not be seen as a changed position; the
21 June 1997 letter was still valid.
The test would be the reaction to the report of the Group of Experts which
was conveyed to the Cambodian UN mission in New York on 23 February 1999.
Unfortunately, the report had been leaked to the media before that. There had
also been some problems with the transmission to Phnom Penh from the Cambodian
mission in New York and with the translation into Khmer language, all of which
could explain some of the irritation that now appeared to surface in the Prime
Minister's office and the Foreign Ministry.
On 3 March a first response was given to the Secretary-General. It was
published immediately, though the Experts' report had not been made public at
this stage. The reply said, in part:
"We have never rejected the
accountability of the Khmer Rouge leaders for the crimes of genocide in
Cambodia. We just want, however, to caution that any decision to bring the Khmer
Rouge leaders to justice must also take into full account Cambodia's need for
peace, national reconciliation, rehabilitation and economic development for
poverty reduction. Therefore, if improperly and heedlessly conducted, the trials
of Khmer Rouge leaders would panic other former Khmer Rouge officers and rank
and file, who have already surrendered, into turning back to the jungle and
renewing the guerrilla war in Cambodia."
The letter also said that the Government now was studying the South African
Truth and Reconciliation Commission as a possible model for Cambodia. These
points were reiterated in a meeting between Minister for Foreign Affairs and
International Co-operation, Hor Nam Hong, and me in Phnom Penh on 4 March.
On 6 March there was a further major development. One of the remaining key
leaders, Ta Mok (or Chhit Choeun), the former secretary of the south-west zone
and second deputy-secretary of the Communist Party of Kampuchea, was arrested at
the Thai border in northern Cambodia and brought to a detention centre in Phnom
Penh. From this moment the exchanges on a possible trial became much more real.
The arrest also put time pressure on the discussions; according to Cambodian law
no-one can be held in pre-trial detention for more than six months.
The following week Foreign Minister Hor Nam Hong was sent to New York to meet
the Secretary-General and to deliver an aide-memoire. The document, dated 12
March 1999, starts with a reference to the fact that Democratic Kampuchea was
allowed to occupy the Cambodian seat in the UN until the signing of the Paris
Peace Accords in 1991. It says that the Khmer Rouge was legitimised through the
Accords and also became seated in the Supreme National Council during the
transition period. Obviously the message was about UN hypocrisy.
The aide-memoire, further, referred to the June 1997 letter of the two Prime
Ministers and stated that there was no concrete response from the UN until the
second half of November 1998.
"Only when the process of gradual disintegration and capitulation of the
Khmer Rouge leaders and the ranks and file virtually reached its conclusion,
then the 3 UN Experts arrived in Cambodia on a Mission".
The surrender of Khieu Samphan and Noun Chea was described as a culmination
of "the total collapse of the Khmer Rouge movement militarily and politically".
The government would now focus on other priorities, primarily on economic
development and poverty alleviation.
"... Ta Mok, as a top Khmer Rouge hard-liner, remains the most vicious
murderer and has committed countless, most serious crimes until the very day he
was captured by the Royal Cambodian Armed Forces... The process [against him]
will ensure the standards of judicial fairness and effectiveness".
It appears
that the tribunal had been considered as a means of defeating the Khmer Rouge.
When this goal now had been achieved through other means, there was no need to
try anyone else than the one person who had refused to surrender: Ta Mok. When
referring to the process against him, international standards were not
mentioned.
Two legal arguments were put forward. One was that the Genocide Convention
did not require that the crime of genocide necessarily be tried in an
international court; its Article VI mentions the possibility of domestic
proceedings. The other point appeared to be more absolute: that Article 33 of
the Constitution prohibited the government from arresting and extraditing any
Cambodian national to a foreign country. However, on scrutiny, neither of these
arguments held up as particularly relevant or convincing (see below).
The Secretary-General had now received the advice of the Group of Experts and
the negative comments from the government. On 15 March he submitted the report
of the Experts to the General Assembly and the Security Council. In so doing, he
expressed his own view that Khmer Rouge leaders responsible for the most serious
of crimes should be brought to justice and tried before a tribunal which met the
international standards of justice, fairness and due process of law. Impunity
was unacceptable in the face of genocide and other crimes against humanity, he
stated.
He emphasised that if such standards were to be met, the tribunal must be
international in character. This did not necessarily mean that it should be
modelled after the existing ad hoc tribunals or linked to them; other options
could be explored taking into account the analysis and conclusions of the Group
of Experts. He also underlined that the success of any international tribunal
presupposed full co-operation of the Cambodian government.
Meeting with Hun Sen & others march 1999
I met again with Hun Sen on 25 March. Others present included the Foreign
Minister, the Minister of Justice Uk Vithun, the Senior Minister Sok An and the
President of the Supreme Court, Dith Munthy. Normally, I had seen Hun Sen
without the presence of other ministers; their attendance now seemed to stress
the importance and finality of the discussion. Also, the day before the meeting
another letter to the Secretary-General had been published which again made
references to Article 33 of the Constitution and Article VI of the Genocide
Convention.
The letter stated that the trial of Ta Mok would be conducted in a national
tribunal and it welcomed legal experts from foreign countries - if they were
invited by the domestic tribunal. Whether additional persons would be tried was
to be decided by the court itself. (Privately, Hun Sen told me at the end of our
meeting that Noun Chea and Khieu Samphan would be "invited" to the trial.
However, it was not clear whether they would come as witnesses or
defendants.)
Hun Sen said in his opening statement that there would be no international
tribunal, outside or within Cambodia and that Cambodian law did not allow for
the participation of foreigners as judge or prosecutor. Advisors from some
countries might be accepted; it would be up to the prosecutor to decide on this.
Governments interested in supporting the trial could relate to the Ministry for
Foreign Affairs or the Ministry of Justice.
This position contradicted the June 1997 request for international
assistance. The letter from Prince Ranariddh and Hun Sen had stressed that
Cambodia did not have the resources or expertise to conduct this very important
procedure. This particular problem had thereafter been analysed by the Group of
Experts, which had concluded that the Cambodian judiciary failed to meet three
essential conditions: a trained cadre of judges, lawyers and investigators; an
adequate infrastructure; and a culture of respect for due process. (These
deficiencies were, in part, the result of the mass killings during the Khmer
Rouge regime which crippled the judicial system badly).
My own opinion was that the problems relating to the judicial system were so
manifest that they could not be quickly remedied for the purpose of a trial of
this magnitude through some advice only. Though the need for radical judicial
reform had been a major theme in my human rights reports, it had to be realised
that such a process of change would take considerable time. The Government's
platform for 1998-2003 had emphasised the need for judicial reform, stating
that
"the judicial system and the courts are necessary to be entirely overhauled.
By law they ought to be independent, honest and trustworthy".
It was clear that only a tribunal which was truly international in character
could guarantee international standards of justice, fairness and due process of
law. However, it was important that the Secretary-General had clarified that
such a tribunal did not necessarily have to be modelled after either of the
existing ad hoc tribunals (former Yugoslavia and Rwanda) or be linked to them
institutionally, administratively or financially. There were openings here for
other models.
However, there was no interest in such discussions at the 25 March meeting.
The tone was negative, even polemical, as reflected in this statement by Foreign
Minister Hor Nam Hong:
"The international community talks about finding justice for the Cambodian
people. Cambodia agrees to find justice for Cambodians and for humanity. But
what has the international community been doing vis-à-vis the Khmer Rouge
lately? Once the genocidal Khmer Rouge regime was toppled, the so-called
international community continued to support the Khmer Rouge. The so-called
international community forced Cambodia to accept the Khmer Rouge as partners in
Paris peace talks and in the SNC. It said nothing about responsibility of the
Khmer Rouge, let alone prosecution of them. But now that Cambodia has achieved
peace and reconciliation, they call for an international tribunal. Can we trust
them?"
This is the moral aspect. Now for legal aspects. We Cambodians suffered most
and are those who most want justice. Article VI of the Genocide Convention does
not prohibit prosecution by a national court. Article 33 of Constitution does
not allow Cambodians to be tried abroad. The proposed national prosecution is in
line with law. International standards are not clear. We are ready to accept
international assistance in order to respond to moral and legal aspects, and the
desire for peace. Behind the so-called international community are one or two
countries who push for an international tribunal. Some countries supported the
Khmer Rouge until 1991. Do they love Cambodians more than the Cambodians
themselves?"
The fact that these arguments were given such prominence, I felt, may have
reflected internal difficulties within the government in maintaining
intellectual standards. No international representative had said that the
Genocide Convention excluded the possibility of a national trial, this was not
an issue. The very wording of Article 33 of the Constitution did not support the
Foreign Minister's interpretation: it only stated that there was a need for
mutual agreement between the relevant governments before a national could be
extradited. Such an agreement would probably not be a problem if an
international tribunal was properly established and the Cambodian authorities
were positively involved. The Prime Minister did not come back to these points
when I made these clarifications.
He presented two arguments to explain the changed position from the 21 June
letter. First, that the Khmer Rouge leaders still were active in June 1997 and
threatened peace and stability. When they surrendered or, in the case of Ta Mok,
had been arrested, the situation had changed. There was no longer any need for
help from outside. The other argument was that the Chinese government exerted
pressure against any international tribunal and when the Thai government had
refused to arrest Ta Mok on Thai territory, Hun Sen could no longer claim that
this was an international issue.
After 21 months:
stalemate
The government discourse had grown polemical and irritated. The UN history on
the Khmer Rouge was attacked, as were the previous and current positions of the
US and China. The Thai government was even accused of "sabotage".
Also, arguments were made which were less than serious, such as that the
Constitution did not allow co-operation with an international tribunal outside
Cambodia. Moreover, there was the loose idea put forward - but never thoroughly
analysed - of trying "the South African model", which was understood to be a
truth commission based on voluntary confessions and forgiveness. My impression
was that all these strands in the discussion more reflected a general unease
with the whole situation than a clear and principled strategy.
In reality, the discussion had come to an impasse. Though not spelled out in
black and white, the Prime Minister no longer stood behind the June 1997 letter.
The shift appeared to have begun with the surrender of Khieu Samphan and Noun
Chea and their December 1998 meeting with the Prime Minister. Hun Sen's
memorandum on 21 January, though non-conclusive in approach, had hinted at
arguments which later became prominent. One of them was the perception of a
contradiction between peace and a tribunal.
This point, however, seemed to have less weight after the arrest of Ta Mok.
There were no reports about security problems as a result of his being captured.
It was also difficult to combine the position that the Khmer Rouge was now
totally defeated and the argument that an international tribunal would lead to a
new civil war. As a consequence two other points were given more emphasis. One
was that it was "too late", the game was over. The other one related to
Cambodia's sovereignty.
Hun Sen has obviously seen the international tribunal as an instrument to
defeat the Khmer Rouge more than as a means of establishing justice. When Ieng
Sary, Noun Chea and Khieu Samphan had surrendered and Ta Mok were under arrest,
the tribunal became less important to him. But justice is a value in itself.
The Prime Minister's criticism against the UN for not acting more speedily on
the June 1997 letter should be read against the fact that he himself had
appealed to the UN not to move on this matter until after the July 1998
elections. The arguments for this request were that an already volatile
situation should not be further disturbed and that the government needed some
room to encourage further defections.
How late was the UN? The experts were appointed more than a year after the
original letter from the Prime Ministers, in July 1998. They were ready to visit
Cambodia in September but it was decided to postpone the mission until November
due to the political tensions in August-September. The final report was
delivered exactly 20 months after the original request from the government.
The time schedule was affected by the fact that the Security Council never
formally discussed the letter and was clearly split on the issue. Only through
the resolution in the General Assembly, in December 1997, was there a more
formal reaction from a UN body opening the way for a Secretary-General
initiative. If this, then, had been followed-up quickly, it just might have been
possible to have the experts visiting Cambodia before the election fever had set
in, which in turn might have produced another, more constructive, outcome.
Prime Minister Hun Sen stressed his point about "national sovereignty" in
March 1999. This argument was always there, but had now become more dominant.
The fact that the Cambodian government was isolated in the eighties - while a
Khmer Rouge-dominated coalition was given a seat in the General Assembly - was
still, understandably, a source of bitterness for Hun Sen and other CPP leaders.
Also, Hun Sen had continued to be critical of the UN mission, UNTAC, in 1992-93.
He maintained that the UN manipulated the elections in favour of FUNCINPEC.
One explanation for his inconsistencies on the tribunal issue was probably
his deep-seated suspicion of the UN and the international community, which
seemed to have increased with critical human rights reports. Another factor that
he mentioned himself was the contradictory pressure exerted from the US and
China.
National pride alone, however, did not solve the problem of the flawed
judicial system. It was clear that the court system could not take on this task
in a satisfactory manner, as was admitted in the June 1997 letter. The situation
in that regard was little better now, 20 months later.
There were two major problems in the justice system. One was that court staff
was still badly educated, inexperienced and under-resourced; this had obviously
contributed to widespread corruption. The situation was made worse by the other
problem: that the independence of the system was undermined also from outside.
In my work I had frequently been faced with cases of improper pressure from
powerful people, including politicians and military officers. All leading
lawyers I had talked with were in agreement that Cambodia by itself just could
not handle a Khmer Rouge tribunal relating to genocide and other crimes against
humanity.
There was an implicit recognition of the first problem in the tentative
invitation that had now been sent to some governments to provide legal advisors
to a tribunal on the Khmer Rouge (at the time this was obviously considered by
Hun Sen and his Foreign Minister as an alternative to an international
tribunal). However, the problem of the integrity - and thereby the credibility -
of the proceedings would not be satisfactorily addressed through such an
approach. It was important that people at large could genuinely believe that
justice was done. For that a stronger international element was needed, as the
non-governmental groups had stated.
However, the Prime Minister had said at our March meeting that he felt the
role of the UN on this issue had come to an end.
The
'mixed' tribunal idea
For the Prime Minister to close the dialogue with the UN on the Khmer Rouge
tribunal was a big decision. There had been a very strong reaction, including
within his own political party, against his meeting with Noun Chea and Khieu
Samphan in December 1998. Indeed, my meetings in March 1999 with other
politicians, including those from the CPP, indicated a broad support for a
genuine trial based on international standards. They encouraged me to continue
my efforts in spite of the stalemate.
So did most of the foreign diplomats in
Phnom Penh (and some of their collegues based in Bangkok). The Secretary-General
had submitted the issue to the Security Council and the General Assembly through
his 15 March 1999 letter with the report of the Group of Experts appended. The
Chinese were actively working against any further UN initiative. In a meeting I
had with the Chinese Ambassador in Phnom Penh, he argued that the issue of the
Khmer Rouge was an "internal" matter and should not be dealt with by the UN -
not even on a Cambodian invitation.
However, a broader Member State reaction came at the 1999 session of the
Commission on Human Rights, where Cambodia again was on the agenda. The
resolution took note with appreciation of the report of the Group of Experts and
strongly appealed to the Government of Cambodia to take all necessary measures
to ensure that those who are most responsible for the most serious violations of
human rights were brought to account in accordance with international standards
of justice, fairness and due process of law. The Commission encouraged the
Government of Cambodia and the international community to continue to co-operate
for this purpose. In other words, the interest of the international community
was reconfirmed.
However, the international community had not taken position on the precise
model proposed by the Group of Experts. The fact that the Cambodian government,
at least sometimes, had stated that it wanted a trial, made it difficult for a
number of governments to support the imposition of a particular approach on
Phnom Penh. In fact, several diplomatic representatives I consulted showed
sympathy for the idea that the tribunal be established in Cambodia, so long as
its security and integrity could be protected. The message appeared to be:
continue the discussions, your are free to explore other models as long as these
meet the necessary standards.
The next official move was another letter from Hun Sen on 28 April 1999 to
the Secretary-General. He now explained that, though the trial of Ta Mok and
possibly others would take place in an existing national court, foreign judges
and prosecutors would be invited to take part fully in the trial in order to
ensure that it met international standards of due process. A draft law would be
submitted for approval to the Cambodian National Assembly allowing for foreign
judges and prosecutors to take part in the proceedings.
The formulation about the full participation of foreign jurists was not
clear, but seemed to indicate that they could act as judges and prosecutors and
not only as advisors. This opening gave rise to the idea of a "mixed tribunal"
as a solution to the impasse between the UN and the government. The
Secretary-General had given impetus to some creative thinking through his
statement in March that the trial should be "international in character" but not
necessarily modelled on the ad hoc tribunals on former Yugoslavia and
Rwanda.
It had also become more obvious that there were strong arguments for holding
the trial in Cambodia itself. Though the Experts had proposed that the tribunal
be held outside the country but in the Asia-Pacific region, this was not
necessarily the last word. If problems of security and the tribunal's integrity
could be resolved, there would be advantages of establishing it in Cambodia
itself. This would, for instance, enable the Cambodian people to observe the
proceedings closely and to see clearly that justice was being done.
The idea of a "mixed tribunal" was discussed in a meeting in April between
Hun Sen and the US Senator John Kerry who had supported the idea. One aspect of
the approach was that there would be both Cambodian and international judges.
Such a tribunal had never been set up. The idea was innovative, but it was
obvious that it would be extremely complicated to implement.
When I met Hun Sen on 18 May we discussed the idea further. He asked me,
tentatively, whether it would be possible for the Secretary-General to make
appointments of the international judges. I responded that any UN involvement in
this connection would depend on whether there were full guarantees that
international standards for justice, fairness and due process would be
respected. The enabling legislation to be drafted and adopted for this purpose
would have to address the concerns the Secretary-General had expressed in his
letter of 15 March 1999 to the General Assembly and the Security Council.
The emerging idea of a "mixed" tribunal appeared to reflect an attempt to
combine, on the one hand, the position that the trial must be held in Cambodia
itself and seen to be Cambodian and, on the other hand, the introduction of the
necessary guarantees that international standards would indeed be applied and
upheld.
The tribunal would be based on a law to be adopted by the Cambodian
parliament. I pointed out that the report of the Group of Experts gave important
guidance as to the characteristics of the required legislation both in relation
to the substantive law and the procedural aspects. Relevant international
standards would have to be incorporated and the applicability of the domestic
legislation relevant at the time clarified.
On the procedural aspects there would be a need to clarify, for instance,
steps to ensure that the tribunal be protected against undue pressure;
satisfactory arrangements for the arrest of persons indicted; requirements for
the assessment of evidence; the procedures for appeal; a satisfactory mechanism
for the appointment of the judges, prosecutors and other professional staff; as
well as issues relating to the organisation and funding of the tribunal.
Hun Sen stated that it would be very appropriate that experts should assist
Cambodia in the drafting of the legislation to ensure that it met the necessary
requirements of international standards. I undertook to convey this message to
the UN Secretariat and to propose that such expertise be provided. Any further
UN involvement after the drafting would depend on whether there was an agreement
on the inclusion of guarantees that appropriate international standards be
respected.
I reported on these developments at meetings in the UN Secretariat in New
York on 24 May and 10 June and recommended that expert assistance be given to
the Cambodian government for this purpose. In view of the background and, in
particular, the government reactions in March, it was decided that we should
seek another confirmation from the Prime Minister of his intentions.
I sent him a note summarising my understanding of our meeting in May,
including his request that experts assist Cambodia in the drafting of the
legislation to ensure that it met the necessary international requirements. He
wrote back confirming that he was in agreement. He added, however, that he
wanted the experts to arrive as soon as possible.
The UN Office of Legal Affairs had undertaken to analyse the legal
requirements in relation to a "mixed" tribunal. This would serve as a guide for
the experts going to Phnom Penh. It would include provisions relating to the
legal basis of the tribunal, its basic law or Statute, appointment of judges and
a Prosecutor, guarantees for the arrest of Khmer Rouge leaders upon request of
the tribunal and identification of needs for contribution in funds and
personnel.
The analysis of the Group of Experts on both national law and international
standards gave useful guidance on, for instance, the statutory limitation in the
old Code Penal (relevant in 1975 when the Khmer Rouge took power) and the
applicability of the Genocide Convention (e.g. the problem of whether there was
an "intent") and standards relating to Crimes against Humanity (e.g. whether
they apply outside an armed conflict situation).
A special and difficult problem was the formulation on the personal
jurisdiction of this particular tribunal - who could be charged? The Group of
Experts had used the notion that only "the most responsible for the most serious
crimes" be tried, an approach which also had been echoed in the General Assembly
and Human Rights Commission resolutions. There was therefore a need to find a
legal formulation which would limit the number of prosecutions without giving an
implicit amnesty to those outside that limited group. The Group of Experts had
concluded that this issue had to be resolved as a matter of "prosecutorial
policy".
Already at this stage it was clear that two issues might be particularly
difficult: the method of appointing judges and prosecutors, and the numbers of
foreigners and Cambodians among them. The Prime Minister had asked whether the
Secretary-General could appoint the internationals and I knew that he had,
informally, discussed the possibility of a fifty-fifty division.
With this approach to appointment, however, there was a clear risk that the
selection of the Cambodian judges and prosecutors might get politicised. Also,
it was important to avoid any perception of two "classes" or categories of
judges and prosecutors. There were strong arguments for the same appointment
mechanism for all of them. In other words, the Cambodian nominations should also
be endorsed by the Secretary-General or by the impartial mechanism he would
establish for this purpose. A procedure through which the international
community could reject a Cambodian nomination would greatly increase the
credibility of the tribunal in Cambodia.
At the same time, it was important that the body in Cambodia involved in this
would be a judicial structure, not the government. The obvious choice was the
Supreme Council of Magistracy which, according the Constitution, was
responsible, inter alia, for the appointment of judges and prosecutors.
It
was also clear that the discussion on the numbers of international and Cambodian
judges and prosecutors might be affected by the decision-making rules. I wrote
in an internal memo:
"It would of course be safer to have a foreign majority
among both prosecutors or judges. This will probably be difficult for the
Cambodian side to accept (this is why the point about decision-making rules
might be important). The essential point is that it should not be possible for
the Cambodians - even if appointed from outside - to outvote the foreigners.
There is of course a dynamic aspect here - the awareness that the Cambodian
judges themselves cannot alone decide will reduce the risk of pressure."
The internal discussions were also helped by a thoughtful contribution from
the Lawyers Committee for Human Rights which stressed the importance of spelling
out in the enabling law the right to defence and appeal and that witnesses be
guaranteed security and protection, points which had not been well covered or
covered at all in an early Secretariat draft.
While the Office for Legal Affairs was working on these problems, there was a
need to decide on the experts to go to Phnom Penh. I had some suggestions, but
it turned out that the Office of Legal Affairs was interested in taking on this
task directly. I welcomed this engagement, but the resulting delay had to be
explained in Phnom Penh. It was important that the UN now acted with speed and
determination. My hope had been that the legal experts would go at the end of
June; as things developed and due to other commitments, they did not arrive
until late August.
In the meanwhile members of the Security Council were briefed. The outline of
the Secretary-General's proposal became widely circulated and was criticised by
the Cambodian government, in particular its suggestion that a majority of the
judges should be international.
The Zacklin mission and
further discussions
A mission led by the Assistant Secretary-General for Legal Affairs Ralph
Zacklin visited Phnom Penh 25-31 August. A working group chaired by Senior
Minister Sok An had been appointed by the government to meet with the UN legal
experts. It handed over a draft for the enabling law. The UN delegation
responded later during the visit by handing over another draft; there were major
differences between the two.
They differed on the very nature of the competent jurisdiction and whether it
would be part of the existing court system (Cambodian draft) or a special
tribunal established especially for the prosecution of those most responsible
for the most serious human rights violations during the Khmer Rouge regime (UN
draft). The Cambodian draft suggested that the Supreme Council of Magistracy
appoint all judges and prosecutors; a minority of them would be foreigners and
nominated by the Secretary-General. The UN draft proposed that all judges and
the prosecutor be appointed by the Secretary-General.
The Cambodian draft reflected the existing system with a Municipal Court
(Phnom Penh), the Court of Appeals and the Supreme Court. Under the UN draft the
tribunal was composed of two chambers, a Trial and an Appeals Chamber plus a
Prosecutor and a Registry.
The UN delegation summarised its main message in these words: "If the trial
of the Khmer Rouge leaders is to meet international standards of justice,
fairness and due process of law, and gain the support and legitimacy of the
international community, it is vital that the international component of the
tribunal be substantial and that it be seen to be effective on the international
as well as the national plane. This cannot be achieved by merely adding a number
of foreign judges to the composition of the existing court system. Only a
special, sui-generis tribunal, separate from the existing court system, in which
Cambodians and non-Cambodians would serve as judges, prosecutors and registry
staff accomplish this."
The discussions ended with a pledge from the Cambodian side to review its
draft in light of the UN comments. The UN team understood that the revised draft
would be delivered before or during the Prime Minister's visit in New York in
September.
At his meeting with the Secretary-General on 16 September, Hun Sen presented
an aide-memoire which listed three options for UN participation. One was that
the UN provide legal experts to collaborate with Cambodian lawyers and lawyers
from other countries to help draft the necessary legislation and also provid
judges and prosecutors to take part in the trial process at the existing
Cambodian court. The second option was to provide legal experts who would not
take direct part in the trial process and the third was to terminate the
involvement at this stage.
These three options were also discussed in a subsequent meeting in New York
between Hans Corell and Ralph Zacklin of the Office for Legal Affairs and Senior
Minister Sok An. The UN officials, naturally, did not pick one of the options in
the midst of the ongoing discussion on the draft law proposal. The assumption
now was that "option 1" should be tried; if that did not work out, the UN would
have to end its involvement ("option 3"). The UN Secretariat was waiting for a
response from the government on the draft which the Zacklin delegation had left
behind in Phnom Penh. Sok An said the draft would be sent to the UN within one
or two weeks.
While in New York the Cambodian delegation also met leading representatives
of the US State Department after which there seemed to be more understanding
between the two governments on this particular issue.
October 1999
When I arrived in Cambodia in October, the King had just made public in his
monthly bulletin a remark on the argument - put forward by Hun Sen - that the UN
proposal presented by the Zacklin mission was a threat against "national
sovereignty". The King had written:
"Other sovereign countries have accepted, and continue accepting, an
international tribunal charged with judging their respective nationals
responsible for crimes against humanity. This does not violate the sovereignty
of the interested countries".
Yes, it is our sovereign right to invite the UN, he said during our meeting.
To ask for assistance is not to give up sovereignty. He said that UN assistance
was necessary and that he supported our consistent efforts for bringing to
justice the Khmer Rouge leaders.
Another meeting with Hun Sen was on the programme. The tone of that
discussion was not particularly constructive; he said at the start that he did
not feel well and obviously had a bad cold. He stated that he now wanted to
conclude the discussion and move to implementation. "We cannot wait any longer.
We have been disturbed too much by this issue."
His general theme was "sovereignty". He stressed that he had not asked that
this issue be put on the agenda of the Security Council or, for that matter, of
the General Assembly. Doing so would create problems with the Permanent 5 - read
China - and the government did not want to do that. He reacted against the fact
that the Secretariat had given information to the Security Council on the issue.
He felt it was a violation that he had not even been informed about this
beforehand.
As several times before the discussions appeared to have two chapters, one
rhetorical and one more concrete. Here some statements from the first part
(according to our notes):
"It is not for Cambodia to respond to the Secretary-General but for him to
respond to the three options put forward in my aide-memoire."
"Cambodia wants to be given opportunity to be masters of its own situation.
You can participate, but do not try to be masters of the issue".
"Let us hold trials and then see if it accords with national and
international standards. It will be done in accordance with international
standards. Leave it to us to do it."
"We do not want to ask for much money as for the tribunals on Rwanda and
Yugoslavia - if such money is available, it should rather be used for roads,
schools, prisons."
"In my General Assembly speech I mentioned the need to review attitudes of
some UN officials in dealing with members states, for example the demand that
Cambodian judges be reviewed by the Secretary-General - where is the sovereignty
in this? What is the Supreme Council of Magistracy for? Is it only a rubber
stamp? I just want to express my feelings about some UN officials assisting the
SG."
"My work is complete now that the aide-memoire has been handed over - I am
waiting for a reply. During Sok An's meeting with Mr. Corell, the latter had
asked which option Cambodia would prefer. We understand that if Cambodia says
that it wants the third option then it can be said that Cambodia does not want
the UN. But if Cambodia says it wants the first option, then it can be said that
Cambodia wants full UN participation. Sok An replied that it was up to
Secretary-General to reply. If I were the UN I would now let Cambodia get on
with it by its own."
"If they (the UN legal experts) go on about nominations and majority of
judges and so on, they are not participants. I do not wish a foreign woman to
come to Cambodia and dress up in a Khmer dress. I want a Khmer woman to dress in
a Khmer dress and for foreigners to come and help put on the make-up."
"If the UN demands to have majority of judges or to nominate judges, the UN
will be masters of the process. For Cambodia, there is a risk of being forever
under tutelage of UN. If we can dissolve Khmer Rouge, we can organise the trial.
If no trial is held, this means that there are no values any more. Thirty of my
years have been dedicated to fighting Khmer Rouge. I would like to be nominated
for the Nobel Prize for that."
During the more concrete part of the meeting he said that the US now played a
co-ordinating role in relation to the first of the three options the government
had presented to the Secretary-General. The "super majority" model is the most
Cambodia could accept.
The best way for the UN to participate, he said, would be to provide advice
on the draft law. They had had meetings with the US ambassador-at-large David
Scheffer. A Russian and a French expert were now expected to come and help the
government in the drafting job. He also mentioned that they had invited former
US Attorney General Ramsey Clark.
The new draft would be finalised very soon by the working group led by Senior
Minister Sok An and then sent to the UN legal experts. They wanted to have
prompt comments from the UN. They then intended to submit the final text to the
Council of Ministers. Final decisions would then be taken by the National
Assembly and the Senate. Hun Sen wanted the preparatory process completed and
the trial started in the first quarter of 2000.
As on earlier occasions, I said that there would be no UN involvement in any
process to bring the Khmer Rouge to justice unless the Secretary-General was
convinced that the proposal ensured that recognised international standards for
justice, fairness and due process would be met. There would have to be
guarantees that there could be no political interference and that the whole
process would be independent.
During the mission I also consulted representatives of the Cambodian
non-governmental groups. A summary of their views was formulated in a statement
signed by the Bar Association, Cambodian Defenders Project and Legal Aid of
Cambodia on 22 October. They suggested that all judges and a foreign chief
prosecutor should be appointed by the UN and that non-Cambodians also should
take part as investigators in the process. In order that the independence of the
tribunal be fully protected they proposed that a foreign Chief Administrator
should be appointed by the UN and that there be an autonomous budget to be
managed by the Chief Administrator. They further stressed that there should be
adequate security for all court officials and that witnesses must be protected,
also after the trial.
US assistance and government
clarifications
The new US Ambassador to Phnom Penh, Kent Wiedemann, had intervened in early
October in the process offering his "good offices". He tried to break the
impasse between the UN positions and those of the government and focused on the
differences regarding what "side" would have the majority of the judges. The
Zacklin mission had insisted that the international community must have the
majority in order to ensure international standards. The Prime Minister had
demanded a Cambodian majority using an argument about sovereignty.
Ambassador Wiedemann's suggestion was that the Cambodians would be in
majority but that there would be a need for a broad majority for the decisions.
The implication would be that the international judges could not be ignored, at
least one of them had to be behind a decision for that to be valid. This was
called a "super majority".
The US representatives had also discussed whether the trial would be special
or integrated into the existing legal-judicial system in Cambodia. Their
proposal was that a special chamber (or "session") would be created at the
existing court - a formula they later described to me as "cosmetic". This
approach, in turn, spurred a discussion on using new terms (with a risk of
further unclarity).
Another suggestion of the US Ambassador appeared to have
been that the personal jurisdiction would be limited to a fairly small number,
but that Ieng Sary would be included in that group.
Finally, he was reported to have proposed that the UN monitor the process to
ensure that international standards were being met. If they were not, the
international community would withdraw (including the funding). This suggestion
seemed somewhat odd in a discussion about a much closer UN involvement, but the
implied message was probably that the other international actors, including the
US, would follow the UN lead on continued involvement or not.
Though the US intervention in some respect was helpful, it would have been
more useful if there had been better co-ordination with the UN efforts or with
other governments. I was not consulted on Ambassador Wiedemann's initiative, nor
was anyone else on the UN side. This gap was partly remedied in mid-October when
I and Ambassador David Scheffer were in Phnom Penh at the same time.
Scheffer met Sok An, the chairman of the government working group on the
Khmer Rouge issue (who had met the Zacklin delegation in August). He made clear
that the US government did not want to replace the UN in this dialogue, but
rather help move the process forward. Its position was that the US could not
support or take part in any trial which was not approved by the
Secretary-General. The US Government was not willing to step in as an
"alternative" to the UN. A French diplomat told me the same about the position
of his Government and the Russian Ambassador appeared to take a similar
position.
Scheffer's impression was that language now indeed was important to the
government: it did not like the term "mixed" tribunal and wanted to distance
itself from the terminology of the international tribunals. For the court
itself, their preferred term in French is "audience extraordinaire", in English
"extraordinary session".
Meetings I had with key personalities like Chea Sim, Ranariddh, Sar Kheng and
Sok An appeared to confirm the impression that that key decision-makers felt
that a new terminology was part of a face-saving solution to the "sovereignty"
problem.
Also, it was clear that government representatives had come further in their
own thinking about the concrete aspects. On the legal standards to be used, they
wanted to use the term "politicide" or "autogenocide". It was clear that they
wanted the specificity of the Cambodian experience to be recognised and made the
comparison with the association of the term "apartheid" with South
Africa.
They were prepared to accept the super majority concept, but insisted
on a majority of the judges being Cambodians. They suggested 5 judges at the
first level, 7 at appeals level, and 9 in the Supreme Court. The Cambodians
among them should be appointed by the Supreme Council of Magistracy, the
constitutional body in Cambodia with the Authority to appoint judges (as its
membership was dominated by the CPP, its political impartiality was questioned
by many, including the King himself). There appeared to be no opening for the
possibility of recruiting the Cambodian judges from outside the existing pool of
sitting judges. However, Sok An agreed on the need for mutual confidence in the
process of appointments.
On prosecutors, the Government was considering the model of having one
Cambodian and one international prosecutor - and perhaps also two investigating
judges in line with the existing Cambodian system. A serious problem emerged:
the government had in mind that the two prosecutors would have to sign the
indictments together.
The enabling law would make clear that a limited number would be prosecuted;
it would use a formulation like "the Standing Committee of the Central Committee
and those responsible for the most egregious crimes". Also, the government
promised that those indicted would be arrested. It also confirmed the formula in
the June 1997 letter that the temporal jurisdiction period would be 1975-79 -
thereby dropping the idea that Hun Sen had floated that crimes before and after
that period also be covered.
The UN had made clear that the possibility of amnesty and pardon should not
be available in cases of crimes against humanity. The government, however, was
not prepared to formally bloc the Constitutional right of the King to grant
amnesty or pardon. However, it seemed this was not a matter of serious
dispute.
On the whole, the American intervention had caused some optimism but also
confusion. The fact that it was the US acting alone was significant. Hun Sen,
and others, obviously believed that with US support any trial would not be much
criticised abroad.
He made a statement on 19 October at the Pochentong airport which was
obviously unplanned and took others in the government by surprise:
"At this hour, we and the UN, especially considering the US position towards
us, can reach a deal. I have agreed to this proposal, there is no more doubt
left".
Some days later when I met him he made no reference to this statement and
gave the impression of talking a totally different language.
Government reply
The General Assembly in its annual resolution on human rights in Cambodia
encouraged the government to continue its co-operation with the UN with a view
to reaching an agreement on the tribunal issue.
The reply to the document that Ralph Zacklin had handed over in late August
came on 20 December. It bore clear traces of the proposals by Ambassador
Wiedemann. Special or Extra-ordinary chambers (or "sessions") would be created
at the Municipal Court, Appeals Court and the Supreme Court. There would be a
majority of Cambodian judges at each level: three out of five at the first, four
out of seven for the Appeals and five out of nine at the Supreme court level.
The President of the court would always be a Cambodian. All in all, there would
be 14 Cambodian and nine foreign judges. They would all be appointed by the
Supreme Council of Magistracy. The foreign judges would be nominated by the
Secretary-General, after consultation with the Government.
The decisions by the judges would be taken by "super majority" as proposed by
the US Ambassador. For instance, for a decision at trial court there would be a
need for support by four of the five judges, in the Appeals by five of the
seven.
There would be criteria defined for the selection of judges and prosecutors -
to be determined later. The text seemed to say that the pool of Cambodians would
be limited to judges who were now in service which is a serious restriction in
view of the limited number of suitable professionals among them. Another
noticeable restriction was that the support personnel would be recruited from
Cambodian civil servants (this effectively excluded good candidates from the
civil society, an important pool in Cambodia). The Government itself would make
the appointment of the Director of the Office of Administration.
There would be co-prosecutors, one Cambodian and one foreigner. They would
also be appointed by the Supreme Council of Magistracy, the foreigner nominated
by the Secretary-General. For prosecution both of them had to approve the
indictment, which meant that one of them could block a prosecution proposed by
the other.
There were also some problems on the substantive law aspects, including a
reformulation of the definition of genocide - in comparison with the Convention
- which would create problems. However, the main problem was that there were not
sufficient guarantees for an independent process.
The record of the Supreme Council of Magistracy with regard to integrity was
not convincing. Even if it, in reality, was unable to turn down nominations from
the Secretary-General, it was a major flaw that the international community was
not given an opportunity to comment upon Cambodian nominations. This, also,
would create the impression of two categories of judges, one of which would not
be able to say that it had international support. That one co-prosecutor,
according to the draft, could block the action of the other was also a major
problem; in reality, it could prevent legitimate prosecutions.
In early December, the Prime Minister had himself made a significant
intervention in the judicial field. He had accused judges of corruption and
ordered the re-arrest of people who had been acquitted through by court
decisions. Though his criticism about malpractices tallied with my own
observations, his intervention also demonstrated that the integrity of the
judicial system was not respected by the executive power. The Supreme Council of
Magistracy was clearly sidelined in this incidence, a bad omen for its possible
contribution to a Khmer Rouge tribunal.
On the controversial issue about how many Khmer Rouge leaders would be
charged, the Prime Minister had again made public statements. He said in a
speech that "we will try four or five of the people responsible". This was
unfortunate, especially against the background of the other question marks
regarding the independence of the judiciary in Cambodia. The figure of four or
five indictees almost named them in advance. On whether Ieng Sary should be
indicted, the Prime Minister had declared different positions on different
occasions. In December he said that Ieng Sary should be excluded from
prosecution.
In sum, the draft law proposal was not acceptable. It did not contain
sufficient guarantees for justice, fairness and due process. Even in a formal
sense the Government had not divorced itself from the proceedings. Knowing also
the real influence from the Government on the judiciary we had to conclude that
there was not sufficient protection built into the proposal.
My view was that the "super majority" approach would only be acceptable if an
international mechanism screened all judges and prosecutors. The international
community should at least be given equal status with the Supreme Council in the
appointments.
The idea of a "mixed" tribunal was built on the assumption that the
international community would introduce the necessary standards. It was
important that the tribunal be credible also in Cambodia itself. This in turn
appeared to be directly connected to the degree of international participation.
It was significant that the local human rights groups had argued for a majority
of foreign judges, if not a totally international tribunal. For the sake of
credibility it was also important to demonstrate that the Khmer Rouge
proceedings were organised in a way that was clearly different from other trials
in Cambodia. That was one argument for a special tribunal approach, rather than
the "extra-ordinary sessions" linked to the existing system.
Further UN clarifications
In its 20 December 1999 submission, the Cambodian government had asked the UN
Secretariat to reply quickly and so it did. On 23 December a response was given
with points as outlined above. The cabinet was now being involved in Phnom Penh
and on 28 December the UN received another proposal, with minor amendments to
the 20 December text - again with a request for a speedy response. The
Secretariat sent its reaction on 5 January. On 18 January the UN received an
approved translation of the draft law which was also submitted to the National
Assembly - and thereby made public.
The government proposal to the parliament had alternatives on who could
nominate the foreign judges and prosecutor; apart from the Secretary-General,
foreign governments would also be invited to make such proposals. A further
option specified was for the Cambodian government itself to recruit among
individual foreign jurists (these provisions had been there in an original
draft, been omitted and then reintroduced again).
There were other aspects in this new draft which were problematic. The
reference to investigating judges was retained, which meant, in reality, another
filter against action by the prosecutor. Even in the ordinary court system in
Cambodia the investigating judge procedure has been confusing and not worked
well.
There was also, still, insufficient provision for the involvement of foreign
defence counsels and for the protection of witnesses. Also, it was not made
clear that a previous amnesty would not bar prosecution.
However, the government signalled that the dialogue with the UN might not be
seen as closed. In fact, the UN had invited the government to send
representatives to New York for further discussions, but the government wanted
the UN experts to come to Phnom Penh instead. The UN proposed discussions on
major issues of approach and principle, the government wanted technical
talks.
Major concerns remained in the bill which had been proposed to the parliament
as was explained in a letter from the Secretary-General to Prime Minister Hun
Sen on 8 February. They included four particular issues: 1) that there be
guarantees that those indicted be arrested; 2) that there would be no amnesties
or pardons; 3) that the prosecutor be foreign in order that independence be
guaranteed; and 4) that the majority of the judges be foreign and appointed by
the Secretary-General. He wanted a response to these points of principle before
deciding to send a team to Cambodia for further discussions.
In his response on 10 February Hun Sen wrote that he was surprised by "the
gap between the position raised in your letter and ours, which has been already
supported by a number of distinguished UN member states".
The Secretary-General met Hun Sen on 12 February in Bangkok. After the
meeting he reported:
"The main concern of the United Nations is to ensure
that the judicial system set up for this purpose under Cambodian law does indeed
reach international standards. It must guarantee the arrest and surrender of all
indictees; it must exclude any amnesty for genocide or crimes gainst humanity;
and it must include an appropriate international element among both prosecutors
and judges".
Corell visited Phnom Penh from 16 to 22 March, heading a seven-person
legal-political UN team. Some agreements were reached but the government decided
not to forward these to the National Assembly, a situation which, later, would
cause some confusion. The outstanding issue at the end of the Corell mission was
about the possibility for the foreign prosecutor to act without support of his
Cambodian colleague.
Hun Sen touched on this issue in a statement before going to a Group of 77
meeting in Havana in mid-April where he also would meet Kofi Annan. He warned
that if there was no support for his position that the two prosecutors had to
agree to any indictment, one of the prosecutors (the Cambodian, he meant) might
press for the American leaders or those who supported the Khmer Rouge to be
dragged in.
During their meeting in Havana, Hun Sen and the Secretary-General agreed to
let their working groups meet once more to continue the discussions to resolve
finally all differences. On 27 April, however, the Prime Minister wrote to the
Secretary-General again stating that the law would also open for prosecution of
crimes committed from 1970 to 1999. This would mean a clear politicisation of
the process.
The issue of whether one prosecutor might bloc charges from the other came up
for further discussions, including at a meeting in late April between Hun Sen
and US Senator John Kerry - who this time acted in some consultation with the UN
Secretariat - leading to a proposal in Phnom Penh that a separate panel of
judges would resolve any dispute between the two prosecutors. A separate
proposal from one of the prosecutors would only be blocked if four out of five
judges (three Cambodians and two foreigners) in this special panel turned it
down. Though this approach seemed unconventional and even unprincipled, it was
described in some media as a major compromise on the side of the Cambodian
government.
Final rounds
Hans Corell returned to Phnom Penh in early July 2000 for a final round of
negotiations. After the talks he described the tribunal as "a Cambodian court
with the participation of international judges and prosecutors". This was a
clarification; the process should no longer be seen as an international one on
Cambodian soil or even a "mixed" trial - the process would be Cambodian with
help from outside. This appeared not only to be a question of recognising that
the enabling statute would be a law adopted by the National Assembly, but also a
message that the UN would not play a balancing role.
Corell handed over a
draft Memorandum of Understanding that would govern the relationship between the
UN and Cambodia on the tribunal; this would be signed after the National
Assembly had passed the legislation faithful to the understanding between the
two parties. It was made clear that the UN would be unable to support the
"Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes
Committed during the Period of Democratic Kampuchea" if the National Assembly
adopted a law differing substantially from what was outlined in the draft
Memorandum of Understanding.
When the law, at long last, was adopted by the National Assembly on 2 January
2001 it contained some differences in relation to what was discussed during the
Corell mission in July. The major point was that the law did not state that a
previous amnesty would be ignored for the crime of genocide, war crimes and
other crimes against humanity. The issue, again, was whether Ieng Sary could be
prosecuted or not. He was the only Khmer Rouge leader who had been granted an
amnesty signed by the King. It was clear that no further amnesties would be
considered - but what about Ieng Sary? After the National Assembly adopted the
law Hun Sen, on 10 January, was reported in Bangkok Post to have said that Ieng
Sary had brought peace to Cambodia and that there would be war in the country if
the former Khmer Rouge leader were brought to trial.
Corell had proposed in July that a sentence might be added to the relevant
article (Art. 40) in the tribunal law: "An amnesty granted to any person falling
within the jurisdiction of the chambers shall not be a bar to prosecution". This
suggestion, obviously referred to the case of Ieng Sary. In a separate note
Corell had written that the UN was "prepared to discuss this matter when we
finalize the MOU". This had been interpreted by the Cambodian negotiators as
opening for such a discussion after the law was adopted and the sentence
suggested by Corell was not included in the law as adopted by the National
Assembly.
A letter was sent from Corell on 9 January 2001 to Sok An expressing
dissatisfaction about developments. The draft Memorandum of Understanding had
made clear that an amnesty to any person should not be a bar to prosecution.
Corell also stressed that this had been a major issue during the discussions in
July. His position was that the law and the memorandum must be consistent with
one another and that also the latter document needed parliamentary ratification.
Sok An's comment to the media was that outstanding matters could be clarified in
a future meeting with Corell.
The Assembly and the Senate approved on 2 and
15 of January 2001, respectively, the proposal of a special court within the
existing Cambodian judicial system, with participation of UN nominated judges
and one UN nominated co-prosecutor. The majority of the judges would be
Cambodian and appointed by the Supreme Council of Magistracy while the
Secretary-General would suggest that foreign judges and the co-prosecutor, also
to be approved by the Supreme Council.
Senior Minister Sok An analysed the compromises made with the UN when he
introduced the final law proposal to the Assembly on 29 December 2000. The first
was that foreign judges would take part in this national, but extraordinary
trial. The second compromise related to whether Cambodian or foreign judges
would be in majority; the solution was that the majority would be Cambodians,
but that there would be a "blocking minority". The third was about the
prosecution: there would be two co-prosecutors; one Cambodian and one foreign.
Next compromise related to how a disagreement between them or the investigating
judges would be handled: a special Pre-Trial Chamber would be set up to resolve
any such disputes. Finally, the law states that the Government would not submit
to the King any proposal on amnesty or pardon in these cases (thereby not
undermining the constitutional Royal authority to grant amnesties).
What did this mean in regard to the four concerns expressed by the
Secretary-General in his letter of 8 February 2000? - The first, that those
indicted be arrested, had met no formal opposition from the Cambodian side. The
second, that there would be no amnesties or pardons, appeared to be covered by
the somewhat unusual formulation in the law that the government would not ask
the King to take such decisions (and assuming that he would not take such an
initiative himself). The third, that the prosecutor be foreign, had not been
accepted, though the formula presented appears to give both co-prosecutors room
for independent initiatives. The special mechanism to resolve conflicts between
them requires a broad majority to bloc any move by one of them (which probably
means that the panel will not be used other than in an extraordinary
situation).
The Secretary-General's fourth point, that most of the judges be foreign and
appointed by himself, had not been met. The Cambodians would be in majority at
all three levels, the two groups of judges would be nominated through different
procedures and all of them would finally be approved by the Cambodian Supreme
Council of Magistracy. To strengthen the foreign element in the decision-making,
a requirement of broad majorities had been introduced. This was one of the
solutions which the Cambodian non-governmental groups had warned against.
However, another problem surfaced when the Constitutional Council in
mid-February 2001 reviewed the law which had been approved by the two
parliamentary bodies. There was in the proposed law a reference to the penal
code in force when the Khmer Rouge took power in the mid-seventies and this law,
in turn, allowed for the punishment of death. Though there were other provisions
in the proposed tribunal law which outruled the possibility of capital
punishment, the Constitutional Council requested that the inconsistency be
removed. Even if this appeared unnecessary it was not easy to argue against this
ruling and it was agreed that the proposal should be amended and submitted anew
to the parliament.
This further time loss appeared even more unfortunate as there were reports
that the health of one of the potential defendants, Ta Mok, had deteriorated. At
the same time, a new possibility had opened for clarifying with the UN
Secretariat the differences or misunderstandings which had occurred after Hans
Corell's visit in July 2000. However, there were no such exchanges. In late May
20001, the Secretary-General told a group of Asian journalist that his office
had not received word from the Cambodian government on the tribunal for six
months. He urged the Cambodian government to expedite the legislative
process.
