UN head negotiator Hans Corell on Monday evening disclosed details of the draft agreement toward a trial of former Khmer Rouge leaders that was finalized in the morning with Cambodian negotiators—an agreement that answers many of the quibbles of critics of the process but now must be approved by the UN General Assembly and the Cambodian National Assembly.
In the agreement, the specifics of such a tribunal come to life—making it possible, observers said, to imagine justice for the
victims of the Khmer Rouge
24 years after the regime ended and nearly six years since the government asked the UN for assistance with the trial.
The breakthrough agreement, reached in just three days over two negotiating sessions, shocked observers, who said had been afraid to hope for so much progress over so little time after a protracted process that frequently left the two sides at loggerheads.
Japanese Ambassador Gotaro Ogawa called it “a very happy surprise,” and a US Embassy official expressed “pleasure and surprise.”
The agreement envisions two courtrooms, one for trials and one for final “Supreme Court” appeals, unlike the two-appeal system of Cambodia’s normal court system. Only “senior leaders of Democratic Kampuchea and those who were most responsible” for the crimes and human rights violations of the genocidal regime could be tried, Corell said.
Only crimes committed between April 17, 1975, and Jan 6, 1979, could come before the court, which could hand down a maximum penalty of life imprisonment. All those accused would have the right to choose their lawyers.
The lawyers could be foreign nationals, who are not allowed to defend those accused in ordinary Cambodian courts.
Under the agreement, the Cambodian government would agree not to pardon or amnesty anyone sought by the court despite King Norodom Sihanouk’s constitutional right to do so.
As for Ieng Sary, the Khmer Rouge foreign minister convicted of genocide but pardoned by the King in 1996, “The scope of this pardon is not a matter that can be settled in an agreement,” Corell said. “It would be for the [tribunal courts] themselves to determine.”
Corell was vague on how the agreement would ensure international standards of justice—something human rights groups have accused Cambodia of not being able to guarantee.
The tribunal “would have to exercise jurisdiction in accordance with international standards of justice, fairness and due process of law,” he said. The agreement specifically refers to the International Covenant on Civil and Political Rights, which Cambodia has ratified.
“These articles are designed to ensure a fair and public trial by an independent and impartial court,” Corell said, adding that the tribunal would be open to observation by NGOs and the media.
As outlined by Cambodia’s 2001 law on the tribunal, each court would have a non-ruling majority of Cambodian judges—three Cambodians and two international judges in the trial chamber, four Cambodians and three foreigners in the appeals chamber.
A “super-majority,” or majority-plus-one, would be needed for decisions: four judges in the first court and five in the second. This means that the Cambodian majority, if it voted as a bloc, would have to have at least one foreigner on its side to achieve a conviction or acquittal.
Co-investigating judges and co-prosecutors—one Cambodian and one foreigner—would work together. If they differed on whether to pursue an investigation or prosecution, a “Pre-Trial Chamber” of three Cambodians and two foreign judges would evaluate the case.
But in this instance, without the super-majority of four striking it down, the investigation or prosecution in question would automatically go forward.
Corell acknowledged that both the super-majority requirement and the teams of investigators and prosecutors could slow down the trial. But he said that in his experience of international humanitarian law, human rights violations often eventually become clear to all concerned.
Corell did not distribute the text of the agreement itself, which is to be presented to the UN General Assembly by Secretary-General Kofi Annan today. Corell repeatedly refused to estimate when, given the necessary approvals, a tribunal might open or how much it might cost.
He identified ratification of the text by the General Assembly and the Cambodian Assembly as the two most potentially time-consuming steps. In addition to approving the agreement, the National Assembly would have to amend the 2001 Cambodian law to make it jibe with the agreement.
Om Yentieng, a member of the government negotiating team and an adviser to Prime Minister Hun Sen, indicated Monday morning that the premier would call on the legislature to hold a special session.
“I am sure the Assembly will accept the government’s request to examine [the agreement] for ratification and [the law] for amendment without delay,” he said. “We believe the National Assembly [has the] spirit.”
Corell, who arrived last Thursday, was scheduled to depart for New York on Monday night.