The closest Cambodian and UN negotiators ever came to an agreement on an international tribunal for former Khmer Rouge leaders was in mid-2000, when at a meeting in Phnom Penh both sides sought compromise on what was thought to be the final details of the panel, according to Hans Corell, director of the UN Legal Affairs Office. The meeting occurred three years after the process on forming the tribunal had begun, when observers had already seen countless days of backpedaling, flat-out contradictions and two unusual compromises that kept the talks alive.
But no deal was struck on July 7, 2000 the date Corell identified recently as the day the two sides came closest to agreement. Two more years of on-again, off-again statements followed before the talks collapsed in failure with the UN’s Feb 8 announcement that it would withdraw.
That the negotiators were close to agreeing on anything in July 2000 was remarkable, in retrospect. Looking back over the course of the talks today, from near agreement to sudden rebuke and back again, it’s hard to disagree with Khmer Rouge scholars like Craig Etcheson, who maintains that an agreement was never close at hand.
This week marks the “deadline” imposed by Prime Minister Hun Sen for Cambodia to begin working on a tribunal on its own if the UN does not return. The premier last stated on March 20 that the UN had three months to return to the negotiating table.
That the talks will not resume seems all but certain now, Etcheson said.
“The UN is out of the picture, period,” said Etcheson, a visiting scholar at the Johns Hopkins University School of Advanced International Studies in Washington, DC.
“The Cambodian view of the relationship between justice and politics is very different from that held by the UN secretariat, and it is this difference in ideological outlooks which made it impossible for the two sides to achieve a meeting of the minds,” he said by e-mail.
An early disagreement over control of the tribunal the Cambodian and UN negotiators each wanted to supply the majority of judges was resolved with the first of two important compromises made during the talks.
A resolution from the US State Department, delivered through former US Ambassador to Cambodia Kent Wiedemann, called for a majority of Cambodian judges on the tribunal, with an asterisk.
The Cambodians would have limited power, and would need a “super-majority” for a binding decision, meaning at least one of the foreign judges would have to side with the Cambodians for each ruling. The decision was accepted by Cambodia first, and then the UN, raising hopes that other disagreements would be resolved.
Several people who were involved in the talks say they were close to an agreement at various points, but give different reasons for the collapse.
Corell, who spoke recently by e-mail about the July 2000, meeting, has already publicly stated the UN’s position that it was the government’s unwillingness to submit to international law especially in the area of the law that would implement the court that lead to the collapse.
“The United Nations’ fundamental requirement was that an agreement be signed by both sides to establish basic, binding conditions for the court’s operation. The Cambodian government asserted that the domestic law adopted by its parliament establishing the court should be the final word,” the UN said in a statement regarding the talks.
The conditions would have allowed for political tinkering in the tribunal by any of several outside interests, the UN asserted, and limited the UN’s role to that of an assistant rather than a partner.
“Under such a scenario, the UN’s name would have been attached to a judicial process over which it would have little or no control,” the statement continued.
The struggle for control of the trial lead to two important compromises, the first
US Senator John Kerry, who played a tangential role in the talks by offering a compromise at a time when the talks seemed near collapse, said recently that an agreement was possible, but hard-line elements in the Cambodian government worked against it.
“There was a real opportunity when I was in Cuba, the last time in 2000, to really work with the more future-minded elements of the Cambodian government to push this across the finish line,” Kerry wrote in an e-mail.
Kerry was instrumental in crafting one of the two major compromises in the talks: he developed a complex proposal on indictments never used before in a war crimes tribunal. Under the plan, a Cambodian prosecutor and a foreign prosecutor would decide who to call before the tribunal. If they disagreed, a panel of appeals court judges three Cambodians and two foreignersÑwould make a ruling. At least one of the foreign judges would have to side with the majority to make the decision binding.
It was a delicate balance of power that granted the UN its wish to indict whoever was responsible for the most serious crimes during the Democratic Kampuchea period, while at the same time lending the Cambodians some control over the process to ease their discomfort with a UN prosecutor spreading criminal allegations.
Still, Kerry said, not everyone bought into the idea.
“I think many of us close to the process were always aware that there were some in Cambodia and some at the UN who never believed in this effort, and absent full commitment at the highest levels, it was going to be exceedingly difficult to make this work. There had to be a day-to-day nursing of this process for it to work,” he wrote.
Kerry, like Etcheson, said it’s unlikely the UN will return.
“There’s an unwillingness there, a real rigidity, about re-engaging at the highest levels,” he wrote.
Guesses abound over why the talks failed. Hard-line elements or not, a leading theory is that the tribunal no longer held any point for the leadership of the ruling CPP once a series of defections mortally wounded the Khmer Rouge.
Aiding the government was the Thai government’s decision again following the UN decision to participate in a prosecution of the Khmer Rouge—to end support for the Khmer Rouge, cutting the rebels off from vital resupply and rest areas across the border that had sustained them in their long-running battle.
Weakened by the loss of their staging areas, and already crippled by the massive defections of 1996 which included one time foreign minister Ieng Sary, the Khmer Rouge fell to an internal power struggle that saw the execution of Son Sen and the capture and trial of Pol Pot, who died in 1998.
Months after Pol Pot’s death, Nuon Chea and Khieu Samphan emerged from the jungle to defect. Two months after that, in February 1999, Hun Sen announced there was no longer a need for a trial: “To me the trial of the Khmer Rouge is a fait accompli,” he said. “We have dismantled the political and military organization of the Khmer Rouge already.”
Between June 1997—when Hun Sen and then co-Prime Minister Norodom Ranariddh had formally requested UN assistance in a Khmer Rouge tribunal—and February 1999, much had taken place.
“In less than two years all Khmer Rouge followers, troops and leaders had either died, defected, reintegrated or been captured,” longtime Cambodia watcher Bill Herod said. “The 97 request for assistance had served a purpose. Victory over the KR had been achieved.”
From the very beginning, the talks were marked by incongruous public statements from the government, often from Hun Sen, that seemed to counter agreements and decisions made sometimes just days before.
Whether it was the result of a tenuous political dance needed to please several parties at once or an intentional brush off of the international community was a debate that ran alongside the tribunal negotiations like a subplot. The contradictions were nothing less than glaring.
Hun Sen’s support for a tribunal heading into late 1998 seemed solid: he told the French newspaper Figaro that a tribunal was necessary for the country: “I think that until the Khmer Rouge has been judged, we will not be able to say the Khmer Rouge political and military organization is truly dead,” he said in August 1998.
Later, he told Thomas Hammarberg, the former UN special representative for human rights in Cambodia, that he wanted to include Khieu Samphan and Nuon Chea among those to be indicted in the tribunal. That changed by the end of the year, when Hun Sen welcomed both of the men back to the government after they announced that they wanted to defect.
When he welcomed both men at his house, Hun Sen issued one of his most famous sayings about the tribunal, imploring the nation to forget the Khmer Rouge: “We must dig a hole and bury the past and look ahead to the 21st century.”
The statement seemed to go beyond asylum for the pair of Khmer Rouge leaders,
The defections, in late 1998, were marked by a five-star reception in Phnom Penh. Khieu Samphan stayed at a $250-a-night hotel room. The protection granted by the government to Khieu Samphan was high: the last time he had come to Phnom Penh, after the signing of the 1991 peace accords, he had been badly beaten by a mob.
Both men were ferried to Sihanoukville to pose for pictures with their families. In the photos, they look something more like actors in a karaoke video than most-wanted war criminals.
Today, the government has just two men in detention awaiting a trial for the genocide inflicted on Cambodia: military commander Ta Mok and former Tuol Sleng prison director Duch, already held for more than three years at the military prison in Phnom Penh near what is now Tuol Sleng Genocide Museum, but in the late 1970s was the brutal detention center where Duch allegedly oversaw the torture and execution of thousands of men, women and children.
Asked recently if Cambodia would carry out its plan to hold a tribunal of its own, without assistance from the UN, Sok An only said, “We will see; we will see.”