As a high-ranking UN legal team assembles today for what some would argue is the UN’s most significant round of talks on trying the Khmer Rouge, a picture emerged Tuesday of what the government will bring to the bargaining table.
The five-member team, led by UN Secretary-General for Legal Affairs Ralph Zacklin, arrives here this morning and is scheduled to meet over the next several days with ambassadors and government officials.
“The astonishingly high-level mission is a clear indication of how seriously the UN is taking this,” genocide researcher Craig Etcheson said Tuesday.
Earlier this month, key parts of the UN team’s proposal to construct a mixed tribunal of international and Cambodian judges were made public, stressing the need for a majority of international jurists.
Hun Sen publicly denounced the plan last week and reiterated he wants a national trial that “applies international standards.” Earlier in the year, the government also rejected the UN’s first proposal, for an international trial, as a violation of its sovereignty.
The premier’s advisers indicated Tuesday that they had drafted their own laws to present to the UN, including provisions to allow international judges onto a Cambodian court. But they would not say whether they would accept an international majority.
Regardless, “this shows that our national court is very open,” said Om Yentieng, a senior adviser to the prime minister.
He warned the government will stand firm on its pledge to run a genocide trial according to Cambodian law. “We have taken many steps already in the process forward,” Om Yentieng said. “We don’t want Mr Zacklin’s team to block this process and pull it back to the zero point.”
Chief government legal counsel Kao Bun Heng said the government looked to the ongoing Rwandan national genocide tribunal for guidance when writing the draft laws.
But he said the Cambodian proposals differ from the Rwandan court because the ultimate punishment will not be the death penalty and international jurists will not be rejected outright.
Friday, Hun Sen told top officials at the Council of Ministers meeting of the need for court procedures similar to those in the Rwandan national tribunal, several ministers confirmed Tuesday. They said the prime minister referenced the four-tiered system of culpability in Rwanda that separated genocidaires based on their level of involvement in the 1994 massacres.
The top level includes leaders who ordered the killings—much like the Khmer Rouge central committee—and the other levels encompass those who carried out the killings and those who “helped,” according to Etcheson.
But Etcheson argued that while potential evidence gathered at the Documentation Center of Cambodia could implicate countless Khmer Rouge loyalists on all four tiers, “the Cambodian government has not given any indication that it was interested in that many indictments.”
Roughly 100,000 alleged Rwandan genocide suspects remain in prison, awaiting trial there, drawing strong criticism from human rights activists.
At the Council of Ministers meeting, Hun Sen criticized the latest UN proposal for failing to include an appeals process—something some human rights activists have also denounced.
“The right to appeal is a basic human right,” one UN rights worker said Tuesday.
Other UN officials have assured the government that the proposal is negotiable, and most experts agree the absence of an appeals process is “more than negotiable,” Etcheson said.
As it stands, the UN proposal to form a mixed tribunal would set precedent, as other genocide, war crimes and crimes against humanity tribunals have been either national or international bodies—not a hybrid of both.
But the Cambodian court should not stick too closely to the Rwandan model, because rejecting too much international help only erodes legitimacy abroad, said Mike Karnavas, a 17-year US trial lawyer who defended the first man accused by the Rwandan tribunal in Tanzania.
“Now, no one is getting a fair trial in the national Rwandan trials, because no one in Rwanda is qualified to try them,” he said Monday in Phnom Penh.
He argued, however, that international help does not necessarily mean international judges sitting on a tribunal. Theoretically, international judges should train Cambodian judges to conduct their own, legitimate trial, he said.
Today’s delegation marks the second time the UN has attempted to gain a foothold in a Khmer Rouge trial. Sir Ninian Stephen, former governor-general of Australia; Rajsoomer Lallah, former chief justice of Mauritius; and Stephen Ratner, a legal expert on international law and war crimes visited Cambodia in November for the UN.
Their recommendations were forwarded to UN Secretary-General Kofi Annan, who in March called for the creation of an international war crimes tribunal for the Khmer Rouge, arguing that the national courts were too underdeveloped and politicized to handle the task.
But Hun Sen rejected the plan, preferring international “assistance” over outright control.
At the time, UN legal experts were opposed to a mixed tribunal, according to a report penned by Annan.
“The Cambodian judiciary in its current state was unlikely to meet minimal international standards of justice, even with external assistance,” Annan wrote in a March 15 letter to the president of the UN General Assembly and the president of the UN Security Council. “I remain concerned about the credibility of any trial process.”
In order to attempt to achieve that credibility, the UN is now willing to allow a mixed tribunal, but will continue to call for an international majority, its current proposals reads.
“The potential exists for the UN and the Cambodian government to finally come to agreement on trying the Khmer Rouge,” genocide researcher Etcheson said.
The Zacklin team will spend today with ambassadors, according to the UN High Commissioner for Human Rights office.
Absent from their itinerary, however, is a conference with Prime Minister Hun Sen—contrary to Monday’s Ministry of Foreign Affairs report that the prime minister would confer with them before he departs in early September on a trip abroad.
Thursday they will begin negotiations with Minister of Foreign Affairs Hor Nam Hong, a government committee headed by Minister of the Cabinet Sok An and Prince Norodom Ranariddh, UN rights officials said.
