A war crimes tribunal that promises to deliver long-delayed justice for survivors of Cambodia’s genocide will take three years and cost $19 million, according to a plan approved Friday by the UN General Assembly’s social, humanitarian and cultural committee at UN headquarters in New York.
The plan cedes control of the tribunal to Cambodian law while calling for international involvement in the form of judges whose vote would be required for most major decisions.
The formula drew criticism from human rights groups in the days before the plan’s passage, but others said that to negotiate any further would only add delay to the prosecution of crimes committed more than 20 years ago.
It could be more than a year before a trial convenes, due in part to a funding plan that asks UN members to pay voluntarily for the trial. The tribunal plan must also win approval from the General Assembly, which is widely expected to pass it, and then the Cambodian National Assembly.
“There is now more reason than ever to be optimistic that the tribunal will be set, and will be set up very soon in Cambodia,” Cambodian Ambassador to the UN Ouch Borith told the committee. He thanked Japan, France and Australia for their assistance in restarting the once-suspended talks to create the tribunal, then explained his own sacrifice.
“I’ll never forget the howling cries of the wounded, the wailing cries of the women and children for their loved ones who have been killed or tortured to death. I’ll never forget the days when 12 members of my family and more than 2 millions of the Cambodian people who were executed and buried in mass graves,” he told the UN committee.
The passage of a tribunal plan follows nearly six years of negotiations and marks one of the last requirements for convening a trial to prosecute the top leaders of the Khmer Rouge regime, blamed for the deaths of 1.7 million Cambodians.
The plan approved Friday provides the clearest picture yet of what a Khmer Rouge war crimes tribunal would look like, from its location, cost and duration to the staff required to run it.
The Cambodian government must provide a location for the trial, and so far has considered Chaktomuk theater, an unspecified municipal building or the Ministry of Justice, according to a letter written to UN members by UN Secretary-General Kofi Annan. The Cambodian government has also considered constructing a new building for the proceedings, Annan wrote.
The largest share of the UN’s cost will pay tribunal staff salaries, expected to range from 74 to 90 people during the tribunal’s estimated three-year run, Annan said.
Cambodia will pay the salaries of its own judges.
The tribunal will have two courts with three Cambodian and two international judges for the lower court, called the trial chamber; four Cambodian judges and three international ones will serve at the Supreme Court, which will act as both the appeals court and court of final decision.
The five international judges would be selected by Cambodia’s Supreme Council of the Magistry from a list of seven provided by Annan.
A super-majority would be required for each decision, meaning a majority plus one. The super-majority compromise means that if Cambodian judges voted as a block, they would require at least one international judge to make their decisions binding.
The court would have co-prosecutors, one Cambodian and one international. The international co-prosecutor would be appointed by the Supreme Council of the Magistry from a list of two provided by Annan.
The co-prosecutors would indict, prepare charges and prosecute the war criminals.
Two co-investigating judges, one international chosen by the same mechanism to choose the international co-prosecutor, would conduct judicial investigations to determine if cases should go to trial.
Disputes between the co-investigating judges and co-prosecutors would go to a pre-trial chamber. The pre-trial chamber would consist of three judges appointed by the Supreme Council of the Magistry, including the chamber’s president, and two judges approved by the Council after nomination by the UN. A super-majority would be required for all decisions.
Human Rights Watch and Amnesty International, among others, called on the UN to reject the deal because it hands large control of the tribunal to the Cambodian judiciary, but the agreement instead calls for Cambodia to nominate judges of “high moral character.”
“The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source,” according to the plan.
More evidence of Cambodia’s control of the court rests in a portion of the agreement dealing with the law. The agreement passed Friday says the tribunal should be in accordance with Cambodian law, which would include Cambodia’s own tribunal law passed in August of 2001. The agreement directs judges and prosecutors to look to international law only for questions not answered by Cambodian law.
Critics, at one point including UN Legal Affairs Office Director Hans Corell, who said the plan falls short of international standards. Making a reference to those complaints, Ouch Borith defended his country’s position: “International standards do not have to mean international control,” he told the committee.
The court covers crimes committed between April 17, 1975, and Jan 6, 1979, the period which the Khmer Rouge held Phnom Penh.
The plan passed Friday calls for voluntary payments to cover the $19 million cost of the tribunal, an arrangement that Annan warned would unnecessarily delay the trial. He said a similar funding plan for the Sierra Leone tribunal meant added delays, and urged the committee to seek a trial that would be funded instead from member’s UN dues.
“The operation of a court should not be left to the vagaries of voluntary contributions,” he told UN members in a March 31 letter. He went on to say that gathering up the necessary funds may delay the trial so long that any reasonable chance of prosecuting the aging Khmer Rouge leaders may be lost.
Former eastern zone commander Ke Pauk died last year. He was commonly cited as one of those considered likely to go before a tribunal. Former Khmer Rouge military commander Ta Mok and Tuol Sleng prison chief Duch, captured in 1998 and 1999, respectively, are the only two men being held for a tribunal.
Whether or not Ieng Sary would ever face prosecution seems unlikely if the Cambodian authorities do not want it. The agreement says the matter of his pardon, granted in 1996 in exchange for his defection from the Khmer Rouge, would be left up to the tribunal judges. An international law expert, however, reviewed the documents and found that it would be possible for the court, following the plan as passed, to simply leave the matter undecided.
The plan passed by consensus in the UN committee. Full passage before the UN General Assembly’s 58th session, which convenes in September, is considered a formality, since all 191 members of the assembly are also members of the committee.