Since the UN walked away from the proposed Khmer Rouge tribunal, much has been

written about who is to blame, what should have been done, what was agreed (the

now infamous Memorandum of Understanding {the MoU} that was never signed), what

was expected to be in the law, the legality of having an agreement such as the

MoU take precedence over legislation adopted by the democratically elected

National Assembly, etcetera.

Minister of State Sok An, the Cambodian government's lead Khmer Rouge trial negotiator, explains February 12 its stand on the UN decision to pull out of the trial process.

It is time to move ahead. It is solely up to

the Cambodian government to decide IF, and this is a big IF, it wishes to

establish a credible tribunal to investigate, and if necessary, indict and

prosecute the "senior leaders of the Democratic Kampuchea (DK) and those who

were most responsible" for any atrocities committed during that era (1975-79).

It would be imprudent to presuppose what, if any, crimes were in fact

committed, and by whom. All alleged perpetrators and suspects must be presumed

innocent - assuming the so-called "international standards" are afforded to the

presumed suspects.

Holding a trial or two at this juncture will not

achieve actual justice, reaffirm the notion of accountability, break down the

wall of impunity or expose the whole truth - particularly given that only a

handful of individuals will be in the dock to answer for all of the events

during the DK period, while not addressing the pernicious conduct of the US,

China, the UN and others. It may however be the only option available, at least

for now.

A truth and reconciliation commission could compliment the

tribunal, though many are skeptical that such a commission could function

adequately given that old scores are likely to be settled by pointing fingers,

expected political interference will skew the process, and perhaps more

importantly there are no Cambodian Desmond Tutus or Nelson Mandelas. Hopefully,

at some point humanity will deal with the inhumanity of the past; it will take

more than a trial and/or a commission.

Many are quick to blame the

Cambodian government or Prime Minister Hun Sen for delaying or obstructing the

process of establishing a KR tribunal. It bears highlighting that Hun Sen, who

has every reason to distrust or even hold in contempt the UN, not only initiated

this process but has remained engaged in spite of the condescending, patronizing

and neo-colonialist tone taken by the UN's chief negotiator and representative.

Conversely, it appears that Hans Corell let his ego get too close to his

position (having the UN in charge), so that when his position went, so did his

ego ... and the UN followed.

Granted, Hun Sen has been less then

consistent, and is prone to sending mixed messages that often befuddle and

frustrate his counterparts. Hun Sen must share some of the credit for the lack

of progress in establishing a KR tribunal.

However, Hun Sen is above all

else a politician who, as can be expected in Cambodia, is doing a high-wire act

without a safety net. He painstakingly negotiated with the KR to put down their

arms. Cambodia is finally enjoying a semblance of peace.

In an interview

with Helen Jarvis in 1999, Hun Sen indicated his "strategy [was] to put an end

to the political and military organization of the KR. If [he] could not do that,

then [he] could not end the war and bring justice and peace to the Cambodian

people. Without peace, justice cannot be found." (PPP Vol. 8 No. 4). Now that he

has caught the fish, to paraphrase his analogy, Hun Sen needs to figure out how

to cook them before they spoil. Deep-freezing some, as with Ta Mok and Duch,

won't do.

Had the drafting process been handled differently, perhaps it

would not have taken so long to draft the Law on the Establishment of the

Extraordinary Chambers (the Law). More importantly, many of the remaining

nuances could have been resolved. Several lessons can be drawn from the drafting

process which might be useful in identifying how to move ahead in establishing a

tribunal and holding trials - with or without the UN.

The drafting

process was flawed in three major ways: first, the UN did not have a team of

experts in Cambodia working with their Cambodian counterparts; second the

drafting process was not conducted intensively; and third, the law was drafted

in a vacuum with no comprehensive strategy to ensure that all other necessary

changes to related laws, procedures and regulations would be addressed

simultaneously.

Drafting legislation is a time-consuming, labor-intensive

process. Irrespective of the talent involved in drafting, it is inconceivable

that a major piece of legislation such as the establishment of Extraordinary

Chambers for the prosecution of crimes such as genocide and crimes against

humanity, could be drafted overnight or in one or two drafts.

It is

simply preposterous to think that parachuting into Cambodia for a few days or

sending emails and faxes would suffice when dealing with the attendant sensitive

and hyper-technical issues. Obviously, it would be unrealistic to suggest that

Hans Corell should have remained in Cambodia for months at a time. However, he

does not have a monopoly on knowledge; a team of highly qualified experts could

have been in Cambodia doing the heavy lifting, briefing him as needed.

A

working group should have been formed composed of Cambodian and UN

(international) experts. Through a goal-oriented process with rigid self-imposed

deadlines, the working group should have mapped the process and identified which

other laws and regulations needed to be reviewed and amended. By tackling all

issues, laws, procedures, regulations, etc., in tandem, it would have been

possible to identify and solve most of the weaknesses that could

arise.

As it stands, the Law is far from perfect. It is vague and

ambiguous, setting forth an overly convoluted process that is susceptible to

prosecutorial and judicial gridlock.

Nonetheless, the Law is not fatally

flawed as many critics have concluded. It is after all a law designed to be a

framework, upon which implementing by-laws, regulations or rules will need to be

drafted. Perhaps, that is what the MoU was designed to do, and what is referred

to therein as "modalities".

The Law incorporates much of the substantive

law and procedural aspects of existing Cambodian jurisprudence. Here, critics

argue that "international standards" cannot be met given the inherent

shortcomings to existing Cambodian criminal law and procedure. This assumes

"international standards" exist.

As former UN human rights officer in

Cambodia, Balakrishnan Rajagopal, so artfully explained in his March 26, 2002

comment to The Washington Post: "The reality is that the international standards

are themselves malleable, depending upon the caliber of the individual judge,

the evidence that can be marshaled against those charged and the political

context of crimes with which individuals are charged. In effect, different

standards apply in different cases, even before the same court. This was true in

Nuremberg, and it is true in the tribunals for the former Yugoslavia and

Rwanda."

Anyone who has appeared before either one of the ad hoc

international criminal tribunals will echo this.

One must distinguish

between internationally recognized fundamental principles, such as those found

in the International Covenant on Civil and Political Rights which have been

incorporated in Article 35 of the Law, and for lack of a better term,

"acceptable standards", which generally refer to the overall process, such as

procedural fairness, uniformity in the application and interpretation of the

law, availability of resources for the defense, etc. Nothing thus far can be

seen from the Law that supports the conclusion that the Extraordinary Chambers

will not apply "acceptable standards". That remains to be seen.

Much has

been said about the inadequacies of the Cambodian criminal procedure. There

seems to be a fundamental misunderstanding, which perhaps can be attributed to

the lack of knowledge or appreciation of how the Romano-Germanic (French/civil

law) legal tradition functions. Most of the critics, lawyers and non-lawyers,

tend to be from the Anglo-Saxon system. This seems to be the tripwire for the

misperception that somehow the Cambodian criminal procedure is utterly flawed.

For instance, much is made of the fact that an injured party or

complainant cannot go directly to the Investigative Judge to file a complaint.

To understand the reasoning behind this process, one must first understand the

function of the Prosecutor vis-à-vis the Investigative Judge.

The

Prosecutor accepts the complaint, does a preliminary investigation, and upon

identifying a suspect, will draw up the charges and forward them to the

Investigative Judge. The 'investigation' officially commences through the

Investigative Judge who is there to ensure procedural fairness to the injured

party, the accused and witnesses.

The Investigative Judge is expected to

investigate the case for both the prosecution and defense. While the defense is

forbidden to conduct its own investigation, the practice in Cambodia has been

more lax or flexible. Defenders routinely conduct investigations on behalf of

the accused, and at trial a quasi-adversarial system has emerged.

Others

complain that there are no formal rules of evidence in the Cambodian criminal

procedure. That is generally the case in the civil law system. Moreover, it is

worth pointing out that rules dealing with evidence at the currently functioning

ad hoc international tribunals are deliberately brief in order to promote fair

and expeditious trials.

This approach to evidence is flexible and

unencumbered by strict and technical rules found in common law systems. However,

both legal traditions apply certain basic principles in considering the

admissibility and weight of evidence. If Extraordinary Chambers are composed of

judges from different legal traditions, it is to be expected that each will

apply his or her legal reasoning in determining what evidence to accept and how

much weight to give it. So, where is the drama?

Perhaps the most

objectionable aspect of the Cambodian criminal procedure is the role of the

Investigative Judge. Some argue that the time has come to eliminate the function

of the Investigative Judge. Perhaps they are right. After all, Jean-Francois

Burgelin, the Prosecutor General of the French Supreme Court, was quoted in The

Economist (November 24, 2001) as saying: "Rather than having [investigative]

judges who purport to be righters of wrong, let there simply be a unified

prosecution service that investigates, brings charges and prosecutes; let there

be a defense; and let there be a judge acting as a referee."

Sounds

reasonable enough. However, this is a political NOT a legal issue. Cambodia has

opted to base its legal system on the French legal system. Consequently, it

follows that the criminal procedure would be of the same legal tradition.

The problem is not that the existing criminal procedure is inadequate or

flawed, but that it is not uniformly or properly applied throughout the courts

in Cambodia. Indeed, there is plenty of evidence to suggest that the criminal

procedure is routinely violated by certain prosecutors and judges or in certain

types of cases. This can be attributed to the lack of adequate training, outside

influences, corruption, etc. Undoubtedly, corrupt and inept prosecutors and

judges exist in Cambodia - as they do everywhere else.

It is unfounded

however, to assert that no qualified or ethical prosecutors or judges exist in

Cambodia. Under the Law, the Extraordinary Chambers will be sufficiently

transparent for all to see whether the "fix" will be in. But let's not prejudge

how the Cambodian jurists will perform.

So, can the process be salvaged?

Yes. Since there seems to be no appetite to re-visit and amend the Law, the only

available solution is to go over all other relevant laws and procedures to

determine how they fit within the overall context, and to design regulations

that would ensure that most, if not all, shortcomings in implementing the Law

can be resolved. This is an indispensable precondition, if a credible process is

sought.

It would be wise for the Cambodian government to invite, without

delay, a handful of internationally recognized experts (with actual experience,

not just book sense) to assist in this process. They will need to address every

issue relevant to the implementation of the Law.

It will require, for

instance, that they go through the entire criminal procedure article-by-article

to see where, if any, weaknesses exist, and of course propose solutions; they

will need to go through the mechanics of the Law to see where the potential

pitfalls exist that could create unreasonable delays; go over the process on how

the judges, prosecutors and lawyers will be selected and then trained; what

actual resources will be needed; and so on.

Drawing from the experience

in establishing the existing ad hoc tribunals for the former Yugoslavia and

Rwanda, it should take only a few months to iron out all the details.

Assuming a genuine expression of interest was shown by the Cambodian

government to engage international experts and work on an expeditious manner,

the countries that were committed to financing the Extraordinary Chamber should

provide the technical expertise and material resources. The door should be left

open for the UN, though its participation is not required in order to have

credible trials with high standards.

In the end, it all comes down to

whether there is political will on the side of the Cambodian government, and

whether there is the moral will on the part of the international community.

Cambodia should take the first step by engaging recognized international experts

to work in partnership to find acceptable solutions for the remaining unresolved

issues and shortcomings in Cambodia's jurisprudence.

IF Hun Sen is

indeed interested in holding KR trials, then he MUST exercise his influence in

pushing the process forward. IF the international community is truly committed,

it MUST come forward with the requisite assistance. Using the absence of the UN

as an excuse for withholding financial and technical assistance will only serve

to further expose the hypocrisy of the international community and countries who

claim to "support" KR trials.

It's about whether there is a will, not

whether the UN is willing.