In March, 2007, I wrote a column published in The Phnom Post stating that the United Nations either had no “tipping point” for withdrawal from the Khmer Rouge tribunal or that it had “such an extremely high threshold that it is practically non-existent”.
Will Baxter /Phnom Penh Post
Khmer Rouge victims’ advocate Theary Seng at her home in Phnom Penh.
This was mainly because “the UN will never be afforded that ‘magic moment’ of having all the varying interests of the ‘United Nations’ reach a critical mass, when all the ideas and sentiments of the varied and dispar-ate actors fuse to cross the threshold at the same time, tip and lead to a UN withdrawal.”
I had argued that the UN would not invoke its right to withdraw, enshrined in Article 28, for these reasons: (i) the Cambodian government has a monolithic, consolidated voice, whereas the “United Nations” comprises myriad voices, actors and interests, contradictory and multi-dimensional; (ii) UN judges, prosecutors and officials are not political strategists; (iii) the government has become more confident and sophisticated; and (iv) the KRT is foremost a court of public opinion, and the UN has time and again lost the public-relations game against the government, after having invested so much time, energy and money in the KRT process.
I continue to hold the above to be true, but the force of these arguments has been greatly weakened by the passage of six years of KRT operation, by the accumulation of searing experience of this government blatantly, consistently not conforming with the terms of the agreement, by the growing, shared discontent of public voices drawing global attention, by Cambodia’s political interests of 2012, by the poignant illustration of Cases 003/004, and by the personalities of Judge Laurent Kasper-Ansermet and UN envoy David Scheffer.
The time is ripe for the UN to invoke Article 28 and withdraw, for the following reasons.
First, it is the right thing to do, backed by six years of hard evidence of “political interference” and “breach” of the agreement, and everyone knows it. That is to say, the UN has political and public cover.
Second, the political climate works in favour of a UN withdrawal.
The Cambodian government is extra-sensitive about its international image – especially this year, when it chairs ASEAN.
With Burma reforming, Cambodia can no longer hide behind its neighbour as the region’s whipping boy for human-rights abuses and violations of international norms, even though it domestically continues to use the Khmer Rouge era as its measuring stick 35 years later.
Cambodia is also seeking the non-permanent seat on the UN Security Council, and it’s an election year and the government is already under fire for having no opposition figure.
Third, there’s a strong, unified, indignant public stance against the government regarding cases 003 and 004.
Fourth, the UN has a few strong, influential personalities in key pos-itions to act as the catalyst for an honourable withdrawal.
Judge Kasper-Ansermet is strong and has shown his courage by doggedly pursuing these cases under difficult circumstances.
New UN envoy David Scheffer is a principled, veteran negotiator who knows this government and key off-icials assigned to the KRT, meaning he will be less susceptible to falling for the political ruse of this government, which is crafty in pushing its limits and conceding just enough to appease the international commun-ity before it pushes the limits again.
With Kasper-Ansermet and Scheffer leading the pack, I believe the likes of Judge Silvia Cartwright, Judge Rowan Downing, Judge Jean-Marc Lavergne and Co-Prosecutor Andrew Cayley can be persuaded to a convergence on withdrawal as a strategy.
I believe their convergence will force the hand of UN headquarters to the tipping point of withdrawal.
In practice, the withdrawal strategy would look something like this: the UN sets three basic conditions that are easily verifiable, and communicates them publicly.
Let’s say one of the conditions is the immediate appointment of Judge Kasper-Ansermet and the legitimate investigations into cases 003 and 004 beginning immediately upon the judge’s appointment. (The other two conditions could be related to political interference and the integrity of Case 002.)
Upon the breach of any of those three conditions (which is highly likely to happen), the UN unequivocally withdraws from the KRT in a very public manner, with no “ifs” or “buts”.
In doing so, it would set an honourable precedent and, in the process, reform its global image as an institution with a backbone of courage, principle and integrity.
Closer to home, UN withdrawal would salvage the loss of confidence and trust among Cambodians – a priceless commodity among a people who for so long have lost so much faith in anyone and anything.
All in all, the UN has a unique window of opportunity right now to render a measure of justice to the victims and to salvage its integrity — by withdrawing.
To stay and prolong the political farce is to embed all the dark mentalities (of impunity, of cynicism, of low expectations, of fear, of inferiority) we want to change in this society.
To withdraw is to be unprecedented in showing its leadership for victims and the world, and to salvage any measure of justice that can still be had from this political theatre.
In March, 2007, I prayed to be wrong regarding the UN’s with drawal. Now I have a greater chance of being wrong.
More than ever, let me be wrong.
Theary C. Seng,
Founding president Association of Khmer Rouge Victims in Cambodia
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The views expressed above are solely the author’s and do not reflect any positions taken by The Phnom Penh Post.