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:

1. a tribunal established under Cambodian law in a domestic court;

2. a tribunal established by the Security Council or the General Assembly as an

   ad hoc international tribunal;

3. a hybrid option of a Cambodian tribunal under UN Administration;

4. 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.