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Khmer Rouge: 'Last chance' for justice
By Tom Fawthrop
PHNOM PENH -
More than 24 years after Cambodia's murderous Pol Pot
regime was toppled, the battle to bring his henchmen to
justice is still being waged. After a step forward in
December, and two steps backward in January, six member
states of the United Nations have now called on the UN
Secretariat to honor a resolution to resume negotiations
for the establishment of a tribunal into alleged Khmer
Rouge atrocities.
At issue is the problem of
whether a Cambodian legal tribunal would be capable of
performing up to the international standards expected by
the UN. Powerful critics, notably Amnesty International
and Human Rights Watch (HRW), have stubbornly opposed
the form of tribunal sought by Phnom Penh. But others,
noting that the aging Khmer Rouge culprits are poised to
thwart justice by following Pol Pot himself into the
grave, argue that even if the standards of the tribunal
are less than pristine, it would be better than nothing.
Cambodia did itself no favors last month when
anti-Thai rioting in the capital got out of hand,
causing millions of dollars' damage to the Thai Embassy
and Thai-owned businesses. Phnom Penh's failure to
control the riots damaged its credibility on upholding
the rule of law. Many doubt the ability of Cambodia's
ill-trained lawyers and judges to play a constructive
part in deliberating on matters of international
justice.
Also last month, UN counsel Hans Corell
dropped a bombshell by proposing reinstatement of "a
majority of international judges, and an international
prosecutor", on to the proposed tribunal, which would
mean negotiations would go back to the Square 1 of
August 1999.
A number of member states were
astonished by this departure from the mandate contained
in UN Resolution 57/288 (December 18), which got the
negotiations back on track after the UN walked away from
them early last year. Last Thursday six member states -
Australia, France, India, Japan, Philippines, and the US
- met with Corell and UN Secretary General Kofi Annan to
insist that the Secretariat adhere to the mandate "to
conclude an agreement with the government of Cambodia
based on previous negotiations consistent with the
provisions of the present resolution".
They
endorsed the assessment of David Scheffer, former US
president Bill Clinton's ambassador-at-large for
war-crimes tribunals and now vice president of the
United Nations Association, that "it is extremely
critical that both sides begin where they left off in
2001. The UN endorsed that structure in its own draft
agreement between the UN and Cambodia in late 2001."
With most of the suspects now in their 70s, many
Cambodians fear that if the tribunal is put off much
longer in the quest for legal niceties, more former
Khmer Rouge leaders will cheat justice. Chea Vannath,
director of Cambodia's Center of Social Development, a
non-governmental organization in Phnom Penh, told Asia
Times Online: "If we wait for perfect law, the Khmer
Rouge leaders will all be dead."
The
Documentation Center of Cambodia, a genocide-research
institute, has amassed a vast archive of documents,
testimony and data on the mass graves and killing sites
of the Khmer Rouge era. The researchers' latest estimate
of those who died from execution, starvation and other
unnatural causes has now reached just under 2 million -
and still counting.
Mountains of evidence have
been collected. Hundreds of survivors are eager to
testify about the horrors of the Pol Pot regime. But
everything is on hold until the UN is willing to sign a
memorandum of understanding and cooperation to provide
vital resource and financial support for the tribunal to
be held in Phnom Penh.
The UN's legal team
aborted the process last year, claiming the Cambodian
model of a "mixed tribunal" did not meet "international
legal standards, and could not guarantee an independent
tribunal". It was a controversial decision that came
close to killing any remaining Cambodian hope for real
justice.
Scheffer commented: "The distrust
between the two negotiating teams and intense pressure
from human-rights advocates who sought, unrealistically,
to impose their ideal set of legal standards on the
process propelled the United Nations legal team to walk
out."
In a three-year see-saw of negotiations,
legal deadlocks and compromises, the UN Secretariat and
especially its Office of Legal Affairs have frequently
been at odds with the views of key member states.
The Cambodian model for the mixed tribunal is
based on substantial international participation: an
international co-prosecutor, co-investigating judge and
other foreign judges would all be nominated by the UN
secretary general. The international co-prosecutor would
have the power to move ahead with indictments. Every
judicial action would require the approval of at least
one international judge.
The core group of
nations that have actively worked for this tribunal
during the past three years challenged the judgment of
Corell's team, and questioned their right to abandon the
process without consulting UN member states.
A
full-scale UN International Tribunal is unattainable -
first because China has always threatened a Security
Council veto, and second because the Cambodian
government of Prime Minister Hun Sen has never trusted
the UN. Among Phnom Penh's bitter memories is the
strange fact that for 11 long years - from 1979-90 - the
UN continued to allow the Pol Pot gang to occupy
Cambodia's seat in the General Assembly.
In the
history of the UN there have been few occasions when the
Secretariat had to be reminded so many times that that
it is obliged to carry out the will of the member
states.
Helen Jarvis, an Australian advisor to
the Cambodian side, commented: "It is a relief to know
that after a year's delay, the UN legal team is soon
return to Phnom Penh to resume negotiations. It's urgent
to conclude a memorandum of understanding and set up the
tribunal as soon as possible."
Human-rights
activists are unusually divided by the Khmer Rouge trial
controversy. Backing those who argue that, contrary to
the Amnesty/HRW stance that the tribunal must live up to
international standards, Phnom Penh's tribunal law is
better than nothing is law Professor Peter Leuprecht,
the UN's special human-rights rapporteur for Cambodia,
who calls this "the last chance".
And Scheffer
observed recently: "Human-rights activists' call for a
United Nations-dominated international tribunal for
Cambodia - an approach sought long ago and blocked - and
insistence on near-perfect justice risks losing the good
for the sake of the unattainable."
A heavy
burden now rests on both the UN legal team and the
Cambodian side to put past differences behind them and
to display all-out determination to reach an agreement
in line with the UN mandate.
Scheffer remarked
on the irony that with the prospect of finally getting
about seven or eight top former Khmer Rouge leaders
indicted closer than it has ever been, "How tragic it
would be if some advocates for international justice
helped them get off the hook."
(©2003 Asia Times
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