As analysts and officials examine the UN response to the government’s proposal to try former leaders of the Khmer Rouge regime, most agree that while the two sides still appear to be far apart, they also appear poised for compromise.
According to the UN response reportedly sent to the cabinet just before it approved the draft on Thursday, the UN still has major concerns with how Cambodia would conduct the trial.
Primarily, the world body is looking for a trial that meets “internationally recognized standards,” meaning that “all organs and staff of the tribunal…be independent, both politically and financially, from any governmental authority.”
The 10-page response concedes, however, that the government plan—in the form of a draft law—has “layers of applicable law” that are “for the most part in order.” It also asserts that “an agreement between the government of Cambodia and the UN is necessary.”
Youk Chhang, executive director of Documentation Center of Cambodia, agreed. He said Prime Minister Hun Sen appears to be moving away from a tough-talking stance that has dominated his rhetoric throughout the months of dealing with the UN.
“He was calculating the game points [before] but he now realizes that his game needs to be ended with the UN,” he said. “Hun Sen wants to have a deal.”
But Youk Chhang acknowledged there still is a way to go before agreement is reached.
Last year, the UN Human Rights Committee issued a critical report of the Cambodian judicial system that said it lacked proper training and resources and was “susceptible to bribery and political pressure.”
The new UN document continues in that vein and says the court should not be “selective” in naming its suspects.
“The present Cambodian judiciary is nothing else than a tool in the hands of the ruling party to serve its political agenda,” echoed opposition party leader Sam Rainsy in a statement. He argued that the nationality of the judges appointed to the court is not as important as their qualifications.
In addition to concerns over judges, the UN response expressed significant problems with the government’s plan to appoint “co-prosecutors”—one foreign and one Cambodian—to the trial.
The government reportedly would require both prosecutors to agree before the court indicts a suspect. But the UN said “this eventually would lead to paralysis” because one prosecutor could block the other’s decision.
One Cambodia-based diplomat suggested that this difference, however, was not insurmountable. “It’s a valid point to raise,” he said. “But I don’t think it makes the law faulty.” He noted that many of these concerns could be worked out as procedure and might not even need to be included in the law.
He also said that compared to the UN’s last visit to Cambodia in August, it has much fewer concerns now—a clear indication of compromise between the two.
“The UN is no longer talking about where the court will be held, how many judges will be on the court—all these things that were huge issues are no longer there,” he said, indicating the government said it would continue to discuss the trial with the UN if the world body sends a delegation to Cambodia.
One thing the UN has not changed its mind on are amnesties and pardons. While the government draft law says that a suspect cannot be pardoned after a conviction by the court, it does not address those, such as former Khmer Rouge leader Ieng Sary, who already were granted pardons for their crimes.
In recent interviews, Hun Sen has suggested that no one should be tried for the same crime twice. But on Friday he apparently backtracked from these indications that the government might attempt to determine who is tried.
“I committed a mistake,” he told Kyodo News of a statement two weeks earlier that “four to five” Khmer Rouge leaders should be put on trial. “I should not comment on or say anything that is within the bound of the judiciary.”
The UN response also criticized the government draft for being vague on the role of an investigating judge that the UN argued could possess too much power over the prosecutor.
For the government’s part, one top adviser to Hun Sen indicated that the “door will never close” to the UN. “They talk about their side, and Cambodia talks about our side,” Om Yentieng said Sunday. “Both sides must understand the goal here. And that goal is to punish the criminals.”