BY ALLEN MYERS
PHNOM PENH — Cambodian government and United Nations negotiators on March 17 concluded their discussions by initialling a text on cooperation in conducting trials of former leaders of the Khmer Rouge (KR), the brutal regime responsible for the deaths of an estimated 1.7 million Cambodians between April 1975 and its overthrow in January 1979.
The text will be put to the UN General Assembly and Cambodian National Assembly for ratification. It will also require an amendment to the Cambodian law for the trials, which was promulgated in August 2001.
The agreement is testimony to the determination of the Cambodian government, which first asked for UN assistance in a trial of the KR in June 1997.
After the UN "studied" the issue for years and conducted slow-moving negotiations, the Cambodian government incorporated what had been agreed into the 2001 law, which calls for the establishment of "extraordinary" courts within the Cambodian judicial system. Under the law, the courts will have a majority of Cambodian judges, but decisions will require a "super majority" that includes at least one internationally appointed judge.
However, a memorandum of agreement covering details of UN cooperation in the trial proved more difficult. Rather than proceeding to a discussion of these details, the UN Office of Legal Affairs, under deputy secretary-general Hans Corell, chose to raise objections to the Cambodian law.
In late 2001, Corell sent a letter detailing his objections. The Cambodian government answered in a conciliatory fashion, pledging that, if necessary, Corell's concerns could be incorporated into the expected memorandum of understanding. (Many of the objections were redundant or based on nothing more than ignorance. For instance, Corell demanded that the KR trial law guarantee defendants the right to choose their own counsel — something that was already guaranteed under preexisting Cambodian law.)
Despite this, in February 2002, Corell abruptly announced the UN's withdrawal from the negotiations and the KR trial. No UN member state publicly supported this decision, and many sharply criticised it. However, many observers in New York had long believed that the Office of Legal Affairs was unhappy with the prospect of participating in a trial that it could not dominate — as it is currently doing in Sierra Leone, for example.
Fortunately, the Japanese government took the initiative to try to reverse the UN withdrawal. These diplomatic efforts eventually resulted in the General Assembly on December 18 passing a resolution instructing secretary-general Kofi Annan to resume negotiations on a memorandum of agreement on the basis of the 2001 Cambodian law. The resolution called for Annan to report on the results by March 18.
The only substantial change brought about by the UN withdrawal and the subsequent year of diplomatic efforts is Cambodian Prime Minister Hun Sen's promise to Annan that the previously planned two appeals levels would be reduced to one.
It is now known that when the Cambodians sent a negotiating team to New York in January, and again during the just concluded negotiations in Cambodia, Corell sought to reopen the whole question of the court structure and the majority of Cambodian judges.
Corell's unenthusiastic public pronouncements have raised concerns that he and Annan might still attempt to persuade the General Assembly to amend the agreement — an action that would further delay trials if it did not sink UN participation completely.
UN participation is important, not only because of the admitted weaknesses of the Cambodian judicial system. Most Cambodians remember that right up until 1991, the defeated KR were maintained in Cambodia's UN seat by Western governments. Among other consequences, UN "humanitarian" aid to Cambodia ended up supporting KR guerillas in their camps along the Thai-Cambodian border.
UN participation in a trial of the KR can therefore be seen as belated atonement for the UN's role in the 1980s. Cambodians are hoping that the UN will not, instead, compound its offences.
From Green Left Weekly, April 2, 2003.
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