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.