Despite the UN’s surprise decision Friday to pull out of preparations for trials of former Khmer Rouge leaders, diplomats, government officials and political observers said it’s still possible the world body could participate in the tribunal.
“We are not closing any doors. We are urging the UN to continue,” said US Ambassador Kent Wiedemann. “Our position is that this is not the last word.”
Wiedemann said he spoke with Cambodian government officials Saturday morning and reminded them Cambodia has a “strong interest” in negotiating with the UN. “They indicated their continuing interest,” he said.
US Senator John Kerry, who traveled to Cambodia in 2000 to help broker an initial deal between the government and the UN, telephoned UN legal counsel Hans Corell Friday night urging him to reconsider the UN’s decision, according to The Washington Post.
US State Department spokesman Richard Boucher told reporters in Washington Friday that the US believes there are grounds for the UN to continue discussions with Cambodia.
One Asean diplomat said the decision was “quite a stupid move.” He noted the key role of the US in the tribunal process, which began in June 1997 when co-prime ministers Norodom Ranariddh and Hun Sen sent a letter to the UN asking for its assistance in prosecuting former Khmer Rouge leaders.
“The US has quite a lot of influence over [UN Secretary-General] Kofi Annan. I don’t see this as the end of the matter by any means,” the Asean diplomat said.
French ambassador Andre-Jean Libourel and Japanese ambassador Gotaro Ogawa expressed surprise and disappointment at the UN’s announcement.
“We hope the UN will change its mind. This decision was taken a bit quickly, without the consideration of other member states,” said Libourel.
Wiedemann said the US was told only minutes before the decision was released. “The UN has to be responsible to its member states. It cannot act unilaterally,” he said.
Licadho founder Kek Galabru said officials from Cambodian human rights groups would meet this week to work out a strategy for prodding the government, the UN and international donors “to help us to reopen the door for dialogue.”
A source close to the government said Minister of Cabinet Sok An would welcome UN participation if it chose to reverse its decision.
“The UN has invested a lot of time, effort and money, as has the government. It just doesn’t make sense to leave it like this,” said the source.
“Why did the UN do this?” one government official asked. “They should continue.”
At a press conference Friday at the UN in New York, Corell said the UN had reached the conclusion that the Cambodian tribunal law, as presently written, “would not guarantee the independence, impartiality and objectivity that a court established with the support of the United Nations must have.”
Corell said the Cambodian government has refused to agree to a memorandum of understanding governing the formation and the conduct of the tribunal.
The UN’s “chief concern” in recent months has been whether the Cambodian tribunal law, which was signed by King Norodom Sihanouk last August, or the agreement between the UN and the government would be the “controlling document over how the court was going to operate,” according to a UN statement.
Corell told reporters Friday that the UN “cannot be bound by a national law, in a context like this.”
The government has strongly indicated to the UN that the Cambodian law would take precedence over any agreement made with the UN.
Several letters have been sent between Sok An and Corell since August. The government invited Corell to Phnom Penh for negotiations while Corell asked officials to respond in writing to questions he had about the trial law.
The Cambodian law was originally passed by the National Assembly and Senate in Jan 2001. A vague reference to the death penalty, which is outlawed by Cambodia’s constitution, forced a delay until a new version of the law was passed.
Cambodian Institute for Cooperation and Peace executive director Kao Kim Hourn urged the UN to use its influence and resources to continue negotiations.
“The UN has created high expectations with its involvement,” he said. “This is going to undermine whatever global responsibilities they have.
“Khmer Rouge leaders are now more or less free. It is a victory for the dead soul of Pol Pot,” he said.
Khmer Institute of Democracy executive director Lao Mong Hay also blamed the government for the failure in negotiations. He said the government created a law which is “substandard” and betrays the understanding reached between Sok An and Corell in 2000 by leaving out several points in the law.
Lao Mong Hay said these were small points, but they would have added up to a ”sham” trial.
Wiedemann said these issues—such as the right for suspects to choose foreign counsel, or the number of alternate judges—could easily be resolved during in-person negotiations. “I have yet to see where there is fundamental disagreement,” he said.
The Washington Post quoted Mike Jendrzejczyk of the New York-based Human Rights Watch as strongly supporting the UN’s decision. “There was no political will in Cambodia” for the tribunal, according to Jendrzejczyk.
The Asean diplomat theorized one reason the UN made its decision was because it is so tied up with other matters. Corell spent part of January in Sierra Leone, where the UN reached an agreement to form a joint tribunal using both local and international judges.
“The difference is that [Cambodia’s] tribunal did not have the support from the UN Security Council and a resolution while the Sierra Leone one did,” the Asean diplomat said. “If you are Hans Corell, you have to prioritize.”
The UN doesn’t lack for money or personnel, said Kek Galabru. She contends the UN pulled out simply because it didn’t want to harm its reputation by being associated with a trial that is not impartial or independent.
Prime Minister Hun Sen said last year that he is “not the son of the UN,” and warned his government would go ahead with the tribunal with or without the UN’s participation.
“The government has to implement the Cambodian law,” the premier said last July, just before the Senate voted to approve the tribunal law. “I am only accountable to the National Assembly and the King of Cambodia. It is up to Kofi Annan and Hans Corell to decide whether or not to participate. It will not give me a headache.”
A Cambodian official who has participated in the government’s Khmer Rouge tribunal working group said Hun Sen has not made a decision on whether to move ahead without the UN.
“I think no one can know what Hun Sen’s stance is. Sometimes he changes his ideas,” said the official.
Observers said trials held without international involvement would not be credible either with Cambodians or the international community. Comparisons were made to the 1979 trials, in which Ieng Sary and Pol Pot were quickly tried and convicted in absentia by the new Vietnamese-supported government created after the Khmer Rouge were driven out of Phnom Penh.
“I doubt whether we will have any trial except for Ta Mok and Duch. Then just a short trial to dispose of them. No more, no less,” said Lao Mong Hay.
One option is to hold a tribunal without the UN, but with international judges and lawyers from countries that have supported the tribunal process, such as Japan, the US, Australia and France, said Kao Kim Hourn.
If the government does decide to go it alone, it would need to improve its criminal procedure code, said one foreign lawyer.
“They are capable of doing it, although I have never seen a focus on shoring up the few things that would ensure due process,” the lawyer said.
Even if Cambodian-run trials are not seen as credible in the eyes of the world, Cambodians may see it as their government finally delivering justice more than 30 years after the Khmer Rouge were driven from power, said the Asean diplomat.
“Think of the 2003 [national elections]. The CPP would like to have a feather in their cap,” he said. “From day one, this has been political, anyway. And they have no choice but to go ahead.”