WASHINGTON — The New Year may finally see the start of trials for Khmer Rouge leaders responsible for the deaths of nearly 2 million Cambodians in the 1970s, if the Cambodian government seizes the opportunity. But it’s also possible that the United Nations could be dragged into a flawed process to set up a sham tribunal. A tribunal that doesn’t meet international standards would be a great setback for the Cambodian people, and would also damage the U.N.’s credibility.
Cambodian Prime Minister Hun Sen welcomed a resolution adopted recently by the U.N. General Assembly calling on Secretary General Kofi Annan to “resume negotiations, without delay, to conclude an agreement” for a tribunal to conduct Khmer Rouge trials for genocide and crimes against humanity.
But Cambodia refused to cosponsor the U.N. measure, put forward at the last moment by Japan and France. Thirty governments abstained on the U.N. vote, including Canada and most members of the European Union, concerned about Cambodia’s apparent lack of political will. Negotiations between the U.N. and Cambodia have been under way since 1997, when Cambodia first asked for the U.N.’s help, with many obstacles and problems throughout the process.
The U.N. correctly took the position that a Cambodian tribunal law signed in August 2001 fell short of international criteria, and asked for “concrete signs that our minimum requirements for a fair and credible trial will be met.”
Under pressure from the United States, France and others, the U.N. had reluctantly accepted a complicated proposal for a “mixed tribunal,” with both Cambodian and international judges and prosecutors. But the talks were stalled more than once by Cambodia’s reluctance to give up control of the legal and judicial process.
Yet Cambodian courts and judges remain notoriously corrupt and subject to political interference. The U.N. has wisely insisted on basic safeguards to be built in to ensure that a truly independent body would be created. Even under the best of circumstances, many wonder if the “Extraordinary Chambers” set up to try the Khmer Rouge wouldn’t become hopelessly paralyzed with a majority of Cambodian judges.
The Cambodian law could allow senior Khmer Rouge leaders off the hook — such as former Khmer Rouge Foreign Minister Ieng Sar — who previously received pardons or amnesties. The U.N. had called for an explicit provision stating that such pardons would not be a bar to prosecution. The law also deletes any references to defendants’ right to choose counsel of their choice, and fails to provide for adequate witness protection.
In July, at a meeting of Southeast Asian foreign ministers in Brunei, Japan’s foreign minister, Yoriko Kawaguchi, urged an international campaign to press the U.N. back into negotiations. Others, in particular the U.S. and Australia, backed the effort, worried that a chance for Khmer Rouge trials would be lost. Annan wrote to Hun Sen, saying he would re-enter negotiations only with a specific mandate by the General Assembly or Security Council.
In some ways, the U.N. resolution made matters worse. The General Assembly spelled out a mandate for the U.N. secretary general, but made no demands of Cambodia. And the international human rights principles it refers to are extremely narrow.
Annan has asked Cambodia to send a delegation to New York for preliminary talks on Jan. 6. The U.N. should engage in negotiations, but not compromise on its core principles and criteria. Member states should refrain from exerting any further political pressure on U.N. officials, but instead send clear signals to the Cambodian government that it must meet the U.N.’s terms. The entire negotiations process should be open and transparent.
If and when an agreement for a tribunal is reached, commitments for funds, judges and technical and legal advisers will be needed. But the process could be seriously undermined if Cambodia or other countries begin soliciting promises of aid prematurely. Japan should offer to help only on the condition that the U.N. is fully satisfied.
Cambodians deserve the same kind of accountability for crimes of genocidal violence being demanded of officials in Rwanda, the former Yugoslavia and elsewhere. Cambodian rights advocates warn that “political expediency simply to have a trial to save face” won’t satisfy anyone. The Cambodian government should deliver on the promise of real justice, and the international community should insist on nothing less.
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