Precedent Fears Have Delayed Khmer Rouge Tribunal Deal

Concerns over how events in Cambodia could impact efforts to try war criminals elsewhere have played a key role in stalling negotiations over UN involvement in a Khmer Rouge trial, according to diplomats and scholars monitoring the situation closely.       

After months of study, however, legal experts at the UN appear ready for talks with Prime Minis­ter Hun Sen on the possibility of forming an unprecedented “mixed” war crimes tribunal to bring justice to the more than 1 million Cambodians who died during the 1975-1979 regime.

They are expected to arrive this month, pending approval of UN Sec­retary-General Kofi Annan, UN officials and those invol-ved in the case say.

“The kind of mixed tribunal proposed in Cambodia requires some serious thought, you can’t just do it on a whim,’’ said Craig Etcheson, a genocide researcher at the International Monitor Institute. “But after serious thought, it seemed the prospect for Cambodia was a mixed tribunal or no tribunal at all. My sense is everyone came to the conclusion it is better to have some involvement, despite the potential implications.’’

UN experts recommended in March that former Khmer Rouge leaders be tried under an international tribunal similar to those used in Rwanda and Yugoslavia.

But Hun Sen has effectively vetoed an international tribunal outside Cambodia. Associates of the premier point out the international community helped the Khmer Rouge maintain a seat at the UN in the 1980s and aided their efforts as part of a non-communist front fighting against Vietnamese-occupied Cambodia.

Instead of an international tribunal, Hun Sen has asked for assistance in the form of international prosecutors, lawyers and judges who would work alongside Cambodians. The UN experts expressed reservations in their March report about a mixed tribunal, citing the undeveloped and politicized state of the Cambodian judiciary.

the UN in the 1980s and aided their efforts as part of a non-communist front fighting against Vietnamese-occupied Cambodia.

Instead of an international tribunal, Hun Sen has asked for assistance in the form of international prosecutors, lawyers and judges who would work alongside Cambodians. The UN ex­perts expressed reservations in their March report about a mixed tribunal, citing the undeveloped state of the Cam­bodian judiciary.

Hun Sen’s demands have created a dilemma in New York, where UN member nations for months have publicly stressed the importance of prosecuting those responsible for the murderous policies of Democratic Kam­puchea.

Prior to Hun Sen’s rejection, the Khmer Rouge nightmare was billed by some as a test case for the emerg­ing post-Cold War em­phasis on prosecuting war­time atrocities, crimes against humanity, and genocide in world courts.

For the UN to walk away now would be difficult, most agree. And though the Kosovo crisis and other world problems have dominated international media attention and the time of top UN officials, a team of lawyers has been focusing mostly on the Cambodia question since at least April, diplomats and experts say.

“This is a big deal,’’ Etcheson said. “Right now there is basically one type of precedent for serious violations of international war crimes laws, and crimes against humanity. There is widespread concern on the part of various governments, particularly the US.”

With the fading of cold war tensions, many governments and the UN itself have been pushing to establish a coherent formula for those guilty of crimes so vast they are considered crimes against humanity. By doing so, the UN “can build international ex­perience, make it predictable, build case law, and avoid a messy proliferation of different models,’’ Etcheson said.

International war crimes tribunals are in their infancy, meaning any precedents set in Cam­bodia could affect how other countries deal with international calls for tribunals in the future.                         The hope was that as in the case of Rwanda and Yugoslavia, the UN Security Council would re­cruit international legal experts and pass a resolution spelling out the outlines of legal procedures culled from systems around the world.

As in Rwanda and Yugo­slavia, the Khmer Rouge tribunal would have been held abroad.

The Rwanda tribunal, held in Tanzania, was established in 1994 to prosecute genocidal mass ex­termination perpetrated by the ethnic Hutus against their Tutsi countrymen. At least three people have since been prosecuted. The ongoing Yugoslavia tribunal in the Hague has already resulted in the indictments of key Serbian leaders from Bosnia as well as Presi­dent Slobodan Milosevic.

The balance of global power has also complicated efforts to begin negotiations in Cambodia, ex­­perts and diplomats say.

The emerging formula for tribunals requires UN Security Council approval, where powerful nations have veto power. The am­biguity and lack of precedent for the proposal unveiled by Hun Sen has led some countries to oppose consideration until it is assured that rogue regimes will not be able to set up legitimized kangaroo war crimes tribunals to try bigger powers, diplomats say.

Also of concern is the prospect that the new precedent would allow nation’s to bypass the security council and allow a group of small nations that have a numeric majority in the UN general as­sembly but represent a small population of the world to push through tribunals opposed by world powers, observers say.

“People are really confused,’’ said one diplomat. “Nobody knows exactly what Hun Sen wants….How are the prosecution teams going to be organized? What about judges and experts? Somebody’s got to come up with a package deal and present it to the prime minister and say take it or leave it.’’

UN human rights envoy Thom­­­­as Hammarberg visited in May. After a meeting with Hun Sen, government officials an­nounced he had agreed to a mixed tribunal and would send experts to help iron out the de­tails in June. The next day, Ham­marberg told reporters no agreement had been reached, but that he was “optimistic.’’

The confusion left many assuming the UN ap­proved of the mixed tribunal, and would send ex­perts by June to study it. UN officials have since re­­­peated Hammarberg nev­er said experts would arrive in June, nor had an agreement been reached.

Hammarberg “ran into a stumbling block’’ when he returned to New York on the proposal be­cause “Hammarberg trotting back to Cambodia with two experts makes it look like the UN supports it,’’ the diplomat said.

Lakhan Mehrotra, the Cam­bodian representative for UN Secre­tary-General Kofi Annan, says the UN team will arrive in coming weeks in response to a letter by Hun Sen requesting “assistance in pursuit of establishing international standards in Cambodia.’’

As part of their task, the ex­perts would try to “understand exactly what local authorities have in mind, and to convey to them what international standards mean,’’ he said.

The delay has left justice-starved Cambodi­ans, and those involved in the case of captured Khmer Rouge leader Ta Mok and “Duch” concerned.

“Hurry,” said Benson Samay, Ta Mok’s lawyer. “I’m afraid Ta Mok is too old right now, maybe one day he’s going to die. Send experts here so we can make a law and clear the way for a genocide case. If it takes too long, I’m going to die too….As soon as we make a law, we’re going to try Ta Mok, work day and night.’’

Even if a formula is agreed upon, the time table for its completion may remain a mystery.

Steven Heder, a lecturer at the London School of Oriental and African Studies and noted historian, said a credible tribunal—if one is achieved—could “easily last years.’’

“Real justice ain’t quick and it ain’t cheap,’’ he said this week.

UN officials have warned if a compromise cannot be reached, the international community may simply “wash its hands” and walk away.

There are many possibilities that could expedite the situation, however, and since the tribunal would break precedent there are many options to choose from. In Ethiopia, for instance, the government prosecuted the genocidal “dirg’’ army through a domestic tribunal. Since their genocidal policies were decided by committee, they were all prosecuted at once.

Some suggest a similar approach could be taken to prosecute the former Democratic Kampuchea Central Committee.

“If you establish a model similar to the Yugoslavia and Rwanda tribunals, it could take very long indeed,’’ Etcheson said. “Trials there take a year or years for a given prosecution to wind through the long process of investigation, indictment, trial and appeal.’’

 

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