THE United Nations draft proposal for a trial, with international involvement, for
the former leaders of the Khmer Rouge has achieved a unity rarely seen in Cambodia:
everyone hates it.
Prime Minister Hun Sen has dismissed the proposal for what he says is a subversion
of Cambodia's sovereignty.
Rights workers and legal experts have been appalled at a number of areas, including
the softening of the stance by the United Nations from that recommended by a team
of legal experts led by Sir Ninian Stevens who visited last year, and the lack of
an appeals process.
Their recommendation was for a full-scale UN-funded trial outside Cambodia's territory.
The latest proposal to come out of the United Nations Office of Legal Affairs is
a considerable step away from that recommended and is based on a joint Cambodian/International
tribunal.
But even with that amelioration there seems little chance that the UN and the Cambodian
Government are going to find agreement.
A government spokesman said that the UN is going to have to give some more ground
if it wants to be involved.
"The UN will have to compromise even more. The two major obstacles in the proposal
are the appointment of the judges and the appointment of the prosecutor. I don't
see any way that the Cambodian government can accept a majority of non-Cambodian
judges or a non-Cambodian prosecutor".
But KR researcher and academic Steve Heder said he believed that the UN had already
given too much ground.
"We have seen a retrogression. The UN is increasingly making concessions to
accommodate Hun Sen and the Chinese," he said.
Referring to reports that Hammarberg has been criticized for allowing slippage from
international standards in his discussions with Hun Sen last May, Heder says, "It
is then ironic that the next proposal that comes out from the UN is farther from
truly international standards than what Hammarberg proposed.
"Particularly in terms of appeal, this proposal seems to be less than what Hammarberg
promised."
And if the compromises go too far, he said, then the trial will not achieve some
of its main aims.
"I seriously question whether the proposed tribunal could have the educational
and moral effect that it claims it will. The Cambodians will spot right away if there
is something in it that doesn't provide justice," he said.
And if further compromises are made, Heder said, "It may end up as the perfect
example of how not to do an international genocide trial".
One legal specialist in war crimes who viewed the proposal described it as containing
"some godawful elements" specifically the lack of an appeals process and
the joint trial/conspiracy approach (which the specialist said the Nuremburg tribunal
found only applied to wars of aggression).
The lawyer concluded: "The whole project sounds to me like the UN's all too
ready to become complicit in a Hun Sen whitewash."
International involvement in the trial is essential if it is going to be perceived
to be fair.
Senator Kem Sokha said that it would be pointless to go ahead with the trial without
international involvement.
"Cambodian courts are very politicized and the judges lack experience,"
he said.
"Therefore it is very important that the prosecutor and the majority of judges
are non-Cambodian.
"If not, the trial will be controlled by the government. It will be nothing.
If the government really wants justice, I don't understand why they don't agree with
the proposal."
But even if agreement is reached there are also a number of practical issues that
need to be dealt with.
Primary is the evidence against the Khmer Rouge leaders. Researchers like Heder and
those at the documentation centre have amassed documentary evidence, but he has described
his own and their efforts as those of "enthusiastic and competent amateurs".
He said there needs to be much more work done by any prosecutorial team to gather
and evaluate the evidence and interview witnesses.
There have also been concerns, much touted by Hun Sen, that the country could be
plunged back into civil war by a trial.
Ieng Sary, who would be a likely defendant in a trial, has taken up this theme. He
said this week in an interview with ARTE French/German television that a trial could
divide the country again.
"Honestly in my heart the wound has healed. If we perform surgery for [the sake
of] justice it is not important. It may cause us to turn against each other, so I
don't see it as necessary.
"The persons who must be tried are now dead - those two are Pol Pot and
Son Sen. The rest have reintegrated to the Government. Those wounds musn't be stirred
up."
Meanwhile the whole process is also in danger of bogging down in UN/Cambodia politics.
Hun Sen criticized UN inaction over the KR during the past 20 years, pointing out
that the UN continued to recognize the KR Democratic Kampuchea regime even after
it was ousted from power.
Heder said that UN seems to be losing any chance at regaining the moral high ground
on the trials issue that it seized with the original UN experts' report in March.
"If the Cambodians reject this proposal, the UN can always say: 'We went further
than we should have, but they still turned us down'. Nobody can then criticize the
UN for not having tried.
"But at the same time, with this proposal, they give Hun Sen a legitimate possibility
to say that the UN does not live up to international standards. He has already pointed
out and objected that there is no appeal".
"What we will then see would be a completely Hun-Sen-scripted process."
"Even if there is agreement on paper, it still depends on political goodwill
whether the trial will happen at all. And that political goodwill does not necessarily
exist. The Cambodian government can once again drag its feet and the whole process
will be stymied."
