The ideal model would have been an international ad hoc tribunal in Cambodia
with judges, prosecutors and other staff appointed through a credible
international mechanism. This could have been designed through an enabling law
in the Cambodian parliament which would have invited the UN to come for this
It would have been possible to include some Cambodian jurists in the process,
including as judge or prosecutor, but these would be appointed on merit and act
as international appointees. Such an arrangement would have several of the
advantages hoped for in the "mixed" tribunal approach. In the end, this model
was not politically possible. But for the UN to agree to participate in a
"mixed" tribunal, there had to be guarantees for the integrity of the process.
This is fundamentally what the discussions had been all about.
Such guarantees for international standards require watertight protection
against the risk of direct or indirect political pressure. Of course, the
Cambodian participants are more vulnerable than the international appointees. It
is also a question of demonstrating to the Cambodian public that genuine justice
is being carried out. In view of the cynicism in Cambodia about the justice
system, some really clear signs of change are necessary.
That is why it would be important also for the Cambodian judges to be
endorsed through an international mechanism and that there be no limits to
recruit them outside the list of now practising judges. The pool of possible
candidates needs to be widened, also considering that so many Cambodians have a
personal stake in any process against the Khmer Rouge.
The "super majority" notion is clearly a compromise and not without problems.
It carries an implicit notion of there being two categories of judges - which
would be an unfortunate perception even in more normal circumstances. Such a
notion of two "sides" seems to be based on a lack of trust which ought to be
handled more directly. Also, the model could in real life lead to stalemate
situations in which there would be a majority, but not a large enough one for a
If international standards indeed are to be met, neither the Prime Minister
nor any other politician in Cambodia should influence the trial - or be seen to
do so. The tribunal should not be an instrument for political purposes. The main
problem with the final compromise is that it does not offer full guarantees on
this crucial aspect; there is a widespread concern in Cambodia that Prime
Minister Hun Sen will be able to influence the proceedings heavily.
Hun Sen once said, with apparent pride, that he had defeated the Khmer Rouge
first militarily, then politically and now would like to seal these achievements
through a trial. On other occasions he talked about the tribunal as a means of
crushing the movement; but when that happened, that there was no longer a need
for the trial (except for one against Ta Mok, who never surrendered).
His strong reactions against the proposal of a tribunal outside Cambodia
appeared to have several roots. One was that it might have give the impression
that the government was unable or unwilling to have a trial organised at home.
Though he admitted the inadequacy of the Cambodian judicial system in the June
1997 letter, this has not been an easy recognition for him. And if there were to
be a trial he would definitely want to take credit for it.
This raises the question of the border line between the executive and
judicial authorities. A truly independent trial in such a fundamentally
important case would be a huge step in a land which has not yet moved from
previous notions or Royal or "socialist justice" to true independence of the
judiciary. The protracted discussions with the government, the executive branch,
on how to set up the trial may have perpetuated the impression in Cambodia of a
blurred line between judicial and political authorities. Prime Minister Hun Sen
himself sometimes stated that he stood outside the process while he in reality
dominated every bit of it and most often made no secret of that fact. His
repeated and contradictory statements on whether Ieng Sary should be prosecuted
or not is a flagrant example.
This, in turn, may have given some credence to
the strange notion that there is a contradiction between international standards
for a just trial and "national sovereignty". One of the most important Cambodian
statements in this whole discussion was the note King Sihanouk made in his
monthly bulletin that there is no such contradiction.
The strategy of the Prime Minister appeared to have been based on three
options: a) an agreement with the UN on a "mixed" tribunal, b) inviting some
governments (e.g. US, France, Russia, Japan and/or India) to co-operate directly
through sending judges, or c) inviting individual lawyers (e.g. US lawyer Ramsey
Clark) to take part in the process.
He clearly had mixed feelings about the UN option, partly based on his old
animosity towards the organisation. He therefore wanted to set limits for how
much he was ready to compromise with the UN and force it to say yes or no. If
the answer was no, he could blame the UN and at the same time try option b) or
He was faced with UN legal experts who stated that the UN could only take
part in the process if there were clear guarantees for the international
standards on justice, fairness and due process. Very important was that the key
member states in the end decided to avoid going alone and to support the UN
discussions. This effectively blocked option b). It also became clear to the
government, I believe, that option c) would not be credible - in particular,
after a breakdown of talks with the UN.
Therefore, the real options for the government turned out to be an agreement
with the UN (which would require guarantees for the independence of the process)
or trying Ta Mok and Deuch and perhaps some more in an existing domestic court
without international participation. The latter alternative would meet all the
problems which had been identified in the discussion so far. Also, such a trial
would be thoroughly monitored by the Cambodian media and organisations as well
as by the international community - and its shortcomings exposed.
It has been argued that a less-than-ideal compromise between the UN and the
government on the tribunal might be corrected by the dynamics of the process
itself once started. One factor would be the personal influence of the
(hopefully) independent and competent foreigners involved, even if these were in
minority. These would also have the option of leaving the process if they became
dissatisfied and the awareness of this risk/probability might also function as a
protection against abuses. The scrutiny by the media and the NGO:s may also have
a positive influence. For the government to exert distorting pressure on the
tribunal might therefore, in reality, not be so easy.
There may be a grain of truth in this prediction, but this is no good reason
to accept an unsatisfactory model which might cause procedural infighting in the
tribunal and thereby weaken its moral stature. Also, it is important to realise
that the Cambodia tribunal may potentially be an example for the future in other
situations. Also for that reason it would have been important to build its
construction on principles, rather than on political compromises.