The government has forwarded to the UN a much-anticipated draft law outlining how to try one-time leaders of the Khmer Rouge in a special session of Phnom Penh courts with a majority of Cambodian judges and a prosecuting team of one foreigner and one Cambodian.
As UN legal experts in New York mull this latest plan after months of stalemate over which side’s jurists would hold a majority on the court, Prime Minister Hun Sen on Tuesday maintained the government will adopt the law with or without UN approval.
“I won’t wait for the OK from New York, because the person who gives the OK is in Phnom Penh,” Hun Sen said at an investment conference Tuesday morning, noting that the law will go before the Council of Ministers for a vote Friday.
“I don’t care whether the UN gives their suggestion on time… We will go ahead with it. The boat is leaving the port.”
The draft law, however, includes a number of provisions not present in earlier plans but requested by a UN legal team earlier this year.
The draft allows for a UN hand in appointing foreign judges and a prosecutor, provides for the rights of the accused and disallows predetermined amnesties.
A Cambodian judicial body will appoint foreign judges and the foreign prosecutor, the draft states, “as requested by the UN Secretary General following consultation of the Royal Government of Cambodia.” The judges would be appointed to a four-year term and headed by the eldest Cambodian jurist.
Moreover, the draft requires what likely will be a sizable trial bill be footed by a “trust fund established by the UN Secretary General.”
While the provision might display a tangible government commitment to UN involvement, one diplomat said on Tuesday that Cambodian leaders will proceed on their own if the UN rejects the trial plan—“even if they have to seek bilateral support from other countries.”
The new draft also includes a US-sponsored initiative to require a “super-majority” of votes for a ruling. For instance, the first-tier court would consist of three Cambodian and two foreign judges but would require four votes for a decision.
Although some critics suggested that the US attempted to supersede the UN by negotiating with the Cambodian government on the draft, US Ambassador Kent Wiedemann said Monday that the US eventually would “follow the UN’s lead” on whether or not to support the trial.
UN officials in Cambodia would not react on Tuesday to the draft until experts in New York have time to study it. They did express concern that the UN will have little time to evaluate the law before the government’s top decision-making body votes on it Friday.
Since the government in March rejected an international tribunal of the Khmer Rouge, Cambodian leaders have pushed to preserve the country’s sovereignty over the process and rejected a UN they view as all too supportive of the Khmer Rouge throughout the 1980s.
In August, a legal team was sent here by UN Secretary-General Kofi Annan to negotiate with the government on how to assemble a “mixed” tribunal of Cambodian and foreign jurists.
But the two sides quickly parted on who would hold a majority on the court and whether the international community would be responsible for indictments in a legal system seen as biased toward its political allies.
The draft’s completion this week marks the first substantive move on the trial since then.
Kao Kim Hourn, executive director of the Cambodian Institute for Cooperation and Peace, said the government’s draft—especially the provision for co-prosecutors—could display a concerted effort to bridge the gap with the UN.
“It will be important to see how the government gives up control for the sake of holding an accountable trial,” he said.
He warned, however, that the trial still could be politically motivated. According to the draft, the trials’ judges would be appointed by the Supreme Council of Magistracy, which recently has come under criticism for inaction during a municipal sweep of corrupt judges.
Although it is the country’s highest body for appointing and evaluating judges, analysts worry it might be too politically charged for such high-profile proceedings.
Yet Kao Kim Hourn asserted the law is not yet complete.
“The National Assembly and the Senate will have a lot to say in the process. Let’s hope that this is only the beginning and we’ll have a lot of constructive changes along the way,” he said.
The draft law covers the years 1975-1979, and applies international laws on genocide, as outlined in the 1948 Geneva Convention, crimes against humanity, the protection of cultural property and the protection of internationally-protected persons.
(Additional reporting by Lor Chandara and Ham Samnang)