Plan Proposal Would Give UN Edge in Local Tribunal

Targets of a joint Khmer Rouge war crimes trial would be indicted based on investigations led by a single foreign-appointed prosecutor, approved by a foreign-dominated panel of judges, while the “non-negotiable” burden of arresting those singled out would fall to the Cambodian government, according to UN documents.

UN documents and a draft proposal, obtained Mon­day, revealed new details of a negotiable plan which calls for a domestic mixed tribunal influenced by international precedents and shaped in consultation with those involved in previous trials held in Rwanda and the Balkans.

UN experts are scheduled to arrive next week to push the plan.

The proposed plan, some aspects of which were reported last week in The New York Times, appears to give international legal experts substantial power to influence who is indicted for war crimes committed between 1975 to 1979, how the prosecution is presented, and in determining whether the case against former leaders is sufficient to warrant life in prison.

In exchange, the trial would receive an international stamp of legitimacy and would likely help dispel the perception among those who suffered through the Pol Pot regime that leaders responsible will be protected by powerful interests manipulating Cambodia’s politicized, undeveloped legal system.

In addition, the trial would be funded almost entirely by “voluntary contributions’’ from states, international organizations, NGOs and individuals.’’

The single ‘‘Nuremberg-type’’ trial would decide the fate of ‘‘major political and military leaders of the Khmer Rouge and those most responsible for the most serious violations of human rights’’ during the Pol Pot regime, according to the proposal.

“The model…contains the core elements of a mixed tribunal meeting international standards of justice, fairness and due process of law,’’ UN Assistant Secretary General for Legal Affairs Ralph Zacklin wrote in a July 19 memo presenting an earlier draft to UN Secretary General Kofi Annan.

Cambodia’s politicized, undeveloped legal system.

In addition, the trial would be funded almost entirely by “voluntary contributions’’ from states, international organizations, NGOs and individuals.’’

The single “Nuremberg-type’’ trial would decide the fate of “major political and military leaders of the Khmer Rouge and those most responsible for the most serious violations of human rights’’ during the Pol Pot re­gime, according to the proposal.

“The model…contains the core elements of a mixed tribunal meeting international standards of justice, fairness and due pro­cess of law,’’ UN Assistant Secre­tary-General for Legal Affairs Ralph Zacklin wrote in a July 19 memo presenting an earlier draft to UN Secretary-General Kofi Annan. “While some of its elements may be negotiable, the obligation to arrest all indicted Khmer Rouge leaders in Cambo­dian territory, would not be,’’ Zacklin wrote.

In a summary of a briefing for the UN Security Council 11 days later, Zacklin wrote, “The UN will not agree to be or be seen to be associated with a process of selective justice.”

Zacklin is scheduled to lead the UN team to the negotiate with the government how the mixed tribunal would be formulated.

Om Yentieng, an adviser to Hun Sen, declined to comment on the details of the draft proposal this week, denying its legitimacy, and pointing out that it has not been passed by an official UN body.

He referred to a July 30 UN Security Council briefing in which some members objected to even discussing the proposal because it was not on the agenda. Minister of Cabinet Sok An, who has been named chairman of a new government committee to negotiate with the UN, also declined Monday comment.

Other government officials have already condemned some provisions. Most observers agree that the plan itself will likely be modified after negotiations with Cambodians.

The memo to Annan suggested a strong emphasis within the UN on gaining speedy and final resolution to a quest for justice that has gone unquenched in Cambodia for more than 20 years.

The memo suggested that a “comprehensive list’’ of all those targeted for prosecution be submitted to the government for apprehension within six to nine months. However that language is omitted from a draft plan circulated after a July 30 UN Security Council briefing on the proposal.

Those prosecuted would have no right of appeal—unlike tribunals held in Rwanda or the Balkans.

“Discussions with the Cambo­dian leadership have resulted in a certain momentum—a window of opportunity—which should be exploited as rapidly as possible,’’ Zacklin wrote in the memo to the secretary general, urging swift approval of the proposal.

While a five- or seven-member panel of judges would have a minority of Cambodians, the plan makes no explicit mention of Cambodian prosecutors or investigators. The UN secretary-general would appoint a chief pro­secutor “on the expectation that interested States would contribute support staff to the Pro­secutor’s office,’’ the draft proposal states.

Indictments would be handed up by the chief prosecutor to the judges who would then submit a list to the government, which would arrest those still present in Cambodia.

Although limited details have leaked out, the proposal already is raising red flags among some human rights groups and scholars of the Khmer Rouge.

As in the post-World War II Nuremberg trial of former Nazi leaders, leadership would be tried at the same time. But the guilt of each leader would be determined separately, under Cambodian law.

The documents, however, make no mention of foreign legal council for those targeted for prosecution. They do, however, explicitly state that those found guilty would have no right to appeal.

Stephen Heder, a genocide researcher and historian, said the proposal violates the UN’s own standards.

“If you have a situation where you have possibly politically compromised Cambodian judges and lawyers, and hotshot international judges and prosecutors, then you are not going to get the truth or justice out of the process,’’ Heder said.

“Cambo­dians will know that, and therefore, it will have a negative moral and educational effect rather than a positive one,” he said.

“It’s a surprising document to have come from the UN system because of the extent to which it doesn’t live up to UN standards,’’ he added.

A representative for Human Rights Watch said the plan “has some positive features,’’ but added “it has some major shortcomings.’’

An appeal “is a basic element of a fair trial,’’ Sara Colm said. “The original idea was to seek the truth and seek justice and not to have a show trial. Cambodia has already had a show trial.

“There are no guarantees that the government will enforce court orders, preserve evidence, provide access to witnesses, or witness protection or open government files and records,’’ she said.

Lakhan Mehrotra, Annan’s personal representative in Cambodia, declined to comment on the criticisms. The Cambo­dian delegation to the UN was briefed on the plan July 29. But Mehrotra said he is slated to meet with Cambodian authorities to further discuss the proposal later this week.

“I will reserve comments until then,’’ he said. “I would only say that the UN is responding very positively to the request from the Royal Government of Cambodia that the secretary general received seeking assistance in the trial. We are doing just that, we are doing nothing more than that.’’

One diplomat defended the plan, noting that Rwanda and Balkan tribunals have also come in for their share of criticism.

“I don’t think this is a crazy proposal,’’ he said. “It appears to be a credible attempt to deal with political realities…It’s not going to please everybody. But that’s not the goal. The [question] is, could this proposal achieve justice. And you have to say ‘yes.’ ”

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