A Court for Cambodia?

The need for justice

Almost 2 million people – nearly one third of the population of Cambodia – died during the rule of the Khmer Rouge (the Communist Party of Kampuchea) between April 1975 and January 1979. Under policies inspired by Pol Pot and the party’s inner circle, evidence suggests that 1 million people were executed and nearly another 1 million died of starvation and disease as a direct result of efforts to turn Cambodia into a completely agrarian communist state. Documented and oral evidence, still in existence, suggests that extermination policies were carefully planned and executed. The record points to a control structure linking high-ranking members of the Khmer Rouge with rural guerillas who carried out many of the horrific international crimes. Three groups were specifically targeted on political and ideological grounds: 1) those associated with the previous Cambodian government, 2) non-communist members of the population, and 3) suspected “traitors” within the Khmer Rouge who had allegedly committed “crimes against the revolution”.

Efforts to bring those responsible to justice have so far failed. As a result of Vietnamese intervention, the Khmer Rouge was removed from power and a new Cambodian government installed (the People’s Republic of Kampuchea). Vietnam exerted pressure on the new government to try Pol Pot and Ieng Sary for genocide, but the resulting prosecution was conducted in absentia and amounted to nothing more than a show trial. Having lost power, the Khmer Rouge retreated to its stronghold along the Thai border and established itself as a guerilla force. The Khmer Rouge attracted relatively little international attention until August 1996 when Ieng Sary proposed a deal by which amnesty would be given in return for mass defections from the party. The government accepted the deal, generating much controversy and criticism. Hopes for criminal accountability were further dashed by Cambodian government elections in 1998 and the subsequent death of Pol Pot.

Negotiations with the United Nations

It was Cambodia itself that brought the issue of justice back onto the international stage. In June 1997, the Prime Minister of Cambodia, Hun Sen (with then co-Prime Minister Norodom Ranariddh) wrote to the UN Secretary General requesting assistance in bringing the responsible individuals to justice. In response, the General Assembly commissioned a Group of Experts. In February 1999, the Group reported that there was ample evidence to prosecute (under international and Cambodian law) many former Khmer Rouge officials still living in Cambodia – the process of establishing a court was underway. Unlike the International Criminal Tribunal for Rwanda, where there are separate and ‘competing’ domestic courts, it was suggested that the Cambodian court should deal comprehensively with the criminal allegations arising out of the reign of the Khmer Rouge. Crimes within the tribunal’s proposed jurisdiction would include homicide and torture under Cambodian law as well as the international crimes of genocide, crimes against humanity and grave breaches of the Geneva Conventions. The initial proposal envisaged that between 20 and 30 suspects would be tried.

Hun Sen welcomed the UN proposal but rejected some of its key elements. The Prime Minister established his own special task-force which put forward a proposal in December 1999 advocating for a domestic trial process with limited international involvement. In turn, the Legal Office of the UN issued a confidential “non-paper” which suggested increasing the tribunal’s independence from the government and rejected the amnesty Hun Sen had granted to Ieng Sary. Negotiations continued. Hun Sen visited Secretary General Kofi Annan in February 2000 to discuss the points of difference and, the following month, a legal team visited Cambodia to continue the process.

Unfortunately the process broke down with Cambodia becoming unwilling to accept UN concerns about independence and due process. Instead, Hun Sen sent his proposal to the National Assembly. Although the enabling legislation was passed, the bill was returned to the legislature by the Constitutional Council in February 2001 because of internal discrepancies over the death penalty provisions. The UN looked to the Cambodian government to modify its stance but after further discussion, and much procrastination by the government, the UN withdrew from negotiations stating that they could not move forward until Cambodia was willing to accept the conditions necessary for a fair trial.

Stumbling blocks

Cambodia and the UN appeared to approach the difficult negotiations from different perspectives. Cambodia worries that, if they cannot retain sufficient control over the process, the tribunal might exacerbate, rather than complement, the continuing process of peace and reconciliation. An insensitive and zealous approach could generate panic and reignite guerilla warfare. For the UN, concerns relate mostly to the impartiality and independence of the process. In its view, there is a real risk that the tribunal will be subject to pressure from the government. In this context, and throughout the negotiations, a number of specific issues were problematic:

• Independence – the UN remained concerned that Court staff and officials could be too easily influenced by the government – financial independence was not guaranteed
• Impartiality of the judiciary – the UN worried that the Cambodian judiciary was too inexperience and politically aligned
• Appointment of Judges – Cambodia advocated for 3 Cambodian and two international judges, all of whom to be appointed by Cambodia – the UN suggested a number of modifications including requirements that 1) court rulings receive a “supermajority” including one international judge, and 2) international judges be appointed by Cambodia from pre-approved list of candidates drawn up by the UN Secretary General
• Powers, rights and duties – no agreement was reached as to the investigative powers of the prosecutor, the rights of the accused, access to counsel, or the role of the defense counsel
• Amnesties – the UN remained adamant that an international criminal tribunal could not honor amnesties given by Hun Sen to several former Khmer Rouge officials suspected of committing atrocities
• Scope – there was some debate over the scope of the court’s investigations and prosecutions – the UN indicated that 20-30 persons would be likely to stand trial

Current developments

In July 2002, Hun Sen and UN Secretary General Annan recommenced tentative discussions. In December, the UN General Assembly passed a resolution reviving the negotiations, which began in January 2003. On March 17, Cambodian and UN officials agreed on a draft framework for a tribunal to prosecute leaders of the Khmer Rouge, which has been approved by the Cambodian government and now awaits the approval by the UN General Assembly. Likely progress is uncertain, without an unequivocal statement that the Cambodian government accepts the essential conditions of a fair, independent and impartial judicial process.