The KR tribunal issue has been shaping up as a classic confrontation between the
conflicting demands of national sovereignty and of international concerns that justice
be seen to be done. Ex-Australian ambassador Tony Kevin shares his views.
CAMBODIA'S year-long negotiation with the United Nations on UN assistance to Cambodia
in conducting trials of Khmer Rouge leaders suggests important lessons. With the
visit to Cambodia 17-24 March of a well-balanced UN team led by Hans Corell, prospects
for an honourable compromise are good.
The story begins in August 1996 with the defection of the wealthy Khmer Rouge faction
in Pailin, led by Ieng Sary, from the outlawed leadership in Anlong Veng (then including
key figures Pol Pot, Ta Mok, Khieu Samphan, and Nuon Chea). On 17 August, co-Prime
Ministers Hun Sen and Prince Ranariddh agreed to work together for a political accommodation
with Ieng Sary's faction. On 14 September, King Sihanouk, at the joint request of
both premiers, granted Ieng Sary an amnesty. It was worded to enable future prosecution
for crimes against humanity.
As relations worsened between Ranariddh and Hun Sen in 1996-97, both premiers made
overtures to the Anlong Veng leaders to defect to their own side, or at least not
to ally with the opposing side. The international community feared that Khmer Rouge
leaders might exploit the hostility between the premiers to negotiate its own return
to legality and even a share in government, and to evade prosecution for its crimes;
and also, that Khmer Rouge forces might ally with anti-CPP forces in a renewed civil
war.
Following intense Western diplomatic pressure on both premiers to commit themselves
to prosecute Khmer Rouge leaders, Ranariddh and Hun Sen jointly wrote to Kofi Annan
on 22 June 1997, asking the UN to help Cambodia bring to justice persons responsible
for genocide and crimes against humanity during the Khmer Rouge rule 1975-1979.
Little more was heard of the issue during the ensuing 18 months of war and political
crisis. CPP and Funcinpec struggled to reach a new political settlement (achieved
in November 1998) acceptable to both parties and also to the international community.
International attention quickly returned to the Khmer Rouge issue on 29 December
1998, when Prime Minister Hun Sen received defecting Khmer Rouge leaders Khieu Samphan
and Nuon Chea in Phnom Penh in a controversial surrender and homage-paying formal
meeting. The arrest of Ta Mok in March 1999 marked the final end of the Khmer Rouge
threat to Cambodian security.
But now the Khmer Rouge trials issue had assumed a very different character. It became
a symbolic battleground for the contested international legitimacy of Hun Sen's Cambodian
government. Powerful forces sought to use the issue effectively to put Hun Sen in
the dock alongside Khmer Rouge leaders. The bitterness felt by the losers - the Sam
Rainsy Party and its international supporters, and some human rights groupings -
at Hun Sen's successful defiance of concerted international efforts since the fighting
in July 1997 to discredit and isolate his government, was now influencing the way
the UN approached Khmer Rouge trials.
An unfortunate turning point was the report to the UN Secretary-General (released
9 March 1999) by three international legal experts led by Australian Sir Ninian Stephen.
It called for the trials to be internationally conducted and taken completely out
of Cambodian hands. Various UN briefings and leaks indicated a UN judgement that
Cambodia could not be trusted to conduct Khmer Rouge trials properly, given manifest
weaknesses in the Cambodian legal and human rights system and the current "culture
of impunity" in Cambodia. The report was welcomed by international human rights
lobby groups and the Sam Rainsy Party.
During the ensuing nine months of Cambodia-UN negotiations, the UN employed various
tactics to try to wear down Cambodian insistence that, as a sovereign country, it
had the right to a responsible role in trials of Cambodians accused of committing
massive genocidal crimes against other Cambodians.
Hun Sen was not prepared to have the issue broadened to criticise judicial and governance
failures of his government, which had only just defeated the Khmer Rouge threat.
He was looking for a decent and honourable compromise with the UN: a power-sharing
arrangement whereby Cambodian judges and prosecutors would manage the trials, but
with substantial assistance and involvement by international judges and prosecutors.
This was not acceptable to organisations like Human Rights Watch International. They
saw the issue as an opportunity to pressure Hun Sen on human rights violations. Also,
the Rainsy opposition tried to exploit the issue to renew its electoral prestige,
following the failure of the Rainsy-led street protest demonstrations in August-September
1998 to destabilise the elected government. Clearly the stakes were high on both
sides.
In a stream of hostile propaganda throughout 1999, Hun Sen was accused of protecting
and collaborating with ex-Khmer Rouge leaders Ieng Sary, Nuon Chea and Khieu Samphan,
using arrested figures Ta Mok and Duch as "scapegoats" for others. Inconvenient
facts were ignored: that Hun Sen had never promised to protect any Khmer Rouge leaders
from international prosecution; that Hun Sen had consistently maintained that the
scope of Khmer Rouge trials could be expanded as evidence accumulated and political
stability returned; and that since 1977, Hun Sen had been the Khmer Rouge's most
resolute opponent (in years when other interested parties including the UN had recognised
and collaborated with the Khmer Rouge, despite knowledge of its terrible crimes 1975-1979).
One must admire Hun Sen's courage and patience in defying huge UN pressures on this
issue during 1999. He never terminated negotiations. He steadily looked for ways
to compromise with the Stephen recommendations, while upholding Cambodia's bottom
line of sovereignty.
The UN side for its part would not compromise its insistence on total control. Remarkably,
the UN argued that because Cambodia was "obviously lacking international standards
of justice," no substantial Cambodian participation was permissible if court
outcomes were to have international credibility and if the UN was to keep its hands
clean.
Just consider the arrogance of this position. The UN was telling Cambodia's sovereign
government - a democratically-elected CPP-Funcinpec coalition government, a member
of the UN and of ASEAN - that Cambodia's political and legal systems could not be
trusted to have any substantive input into decisions regarding indictment, prosecution,
sentencing or amnesty of Cambodian former Khmer Rouge leaders.
In treating the legitimate claims of the RGC with such contempt, the UN was responding
to an increasingly influential international view, centred mainly in Europe and North
America, that individual human rights are now more important than the national sovereignty
of small Third World states.
But the UN was perhaps losing sight of its own basic premise: that it is an organisation
of equal and sovereign states that have freely consented to work together. Cambodia
found itself at the cutting edge of this historically crucial argument. Unfortunately
some Cambodians were misled into supporting the UN position, against their own country's
sovereignty.
The UN visit to Phnom Penh in August 1999 - ostensibly to negotiate, but in reality
to again lay down the law to the RGC - was a disaster. Hun Sen's September meeting
with Kofi Annan in New York went no better.
Some perspective was restored to the argument in late 1999 from two unexpected quarters.
First, Timor: it became clear in late 1999 that President Wahid's new government
in Indonesia was determined to conduct its own criminal trials and sentencing of
alleged TNI atrocities in Timor. UN acceptance of this position brought into sharp
relief the much harsher standards that the UN wanted to impose on Cambodia.
Second, the US State Department in October advocated compromise (which Hun Sen accepted)
on the issue of court majorities. The "super-majority" solution retained
Cambodian majorities but made international agreement obligatory for any verdict.
But the opponents of compromise, in and around the UN system, remained powerful.
Just before Kofi Annan met Hun Sen in Bangkok in February, a leaked pre-meeting letter
from Annan to Hun Sen restated the UN position in tough terms. Media reports suggest
that the drafters of Annan's letter were hoping to provoke Hun Sen to cancel the
talks.
Hun Sen did not fall into any such trap. After picturesquely but accurately comparing
the UN demands to asking Cambodia to be "the guard dog outside the courthouse,"
he met Annan. They emerged proclaiming optimism that resumed talks would produce
a solution.
But then on his return to New York, Annan restated what looked very much like the
original ultimatum to Hun Sen; and he appealed to UN member governments to support
his position. There was a subsequent unusual briefing to UN ambassadors by Annan.
If diplomatic gossip is to be believed, Annan has now instructed the Corell team
to find a solution - if necessary, by compromise with the Cambodian position.
I'm guessing here, but maybe the Secretary-General finally found that outside the
small group of countries that has pressed for activist UN human rights interventionism
in Cambodia, there was growing sympathy in the wider UN membership for Cambodia's
claim that national sovereignty - even that of small third world countries - should
still count for something. If this is so, Cambodia's long struggle to defend its
sovereignty against powerful international bullying will not have been in vain.
