RIGHTS-CAMBODIA: UN Faces Complex Challenge over Tribunal

By Farhan Haq Reprint | | Print |

UNITED NATIONS, Mar 21 1999 (IPS) - Cambodia’s killing fields have returned to haunt the United Nations as the world body battles to convince the Cambodian government to agree to a tribunal putting the worst Khmer Rouge war criminals on trial.

Plans for a UN tribunal, strengthened by the report of a three- member commission chaired by Ninian Stephen, have been dealt a severe blow by Cambodia’s refusal to allow a non-Cambodian court to try Khmer Rouge suspects.

Meanwhile, any plans to bring up the possibility of Khmer Rouge trials to the 15-nation Security Council remain bogged down by the likelihood that China, a former Khmer Rouge ally, will use its veto power to block a UN tribunal.

Yet Cambodia’s alternative proposal, voiced last week by Foreign Minister Hor Namhong in a meeting with UN Secretary- General Kofi Annan, remains equally unacceptable: a Cambodian trial of a recently-captured Khmer Rouge leader, Ta Mok.

“It is my view..that the trial of a single Khmer Rouge military leader which would leave the entire political leadership unpunished would not serve the cause of justice and accountability,” Annan wrote in a letter to the Security Council.

The Stephen panel, Annan noted, had decided that “the Cambodian judiciary in its current state was unlikely to meet minimal international standards of justice, even with external assistance”.

Instead, the secretary-general argued, “Khmer Rouge leaders responsible for the most serious of crimes should be brought to justice and tried before a tribunal which meets the international standards of justice, fairness and due process of law.”

The Stephen panel recommended that the top 20 or 30 Khmer Rouge leaders connected to the mass killings of as many as two million Cambodians between 1975 and 1979 should be tried by a UN tribunal, similar to those dealing with Rwanda and the former Yugoslavia.

That tribunal, the panel advised, should hold court in a nearby Southeast Asian country and should have Justice Louise Arbour – the lead prosecutor for the existing two UN tribunals – as its chief prosecutor.

Although comprehensive, the Stephen panel’s proposal has been decisively rejected by Cambodia. “The crimes committed during Khmer Rouge rule were committed in Cambodia; the culprits and victims were Cambodians,” said Hor Namhong following his meeting with Annan.

Therefore, he argued, the best solution was “a national tribunal according to the Cambodian Constitution”.

Hor Namhong had pledged that his government would push for a fair trial of Ta Mok, the feared Khmer Rouge military chief who took over the Maoist group’s leadership following the death last year of longtime leader Pol Pot.

France has expressed its willingness to send legal experts to Cambodia to bring the country’s judicial system up to international standards for any such trial. But the Cambodian government’s push for a national trial is by far the least favoured option for the United Nations.

“Cambodia still lacks a culture of respect for an impartial criminal justice system,” the Stephen panel wrote. “Powerful elements in the government, such as important political figures, the security apparatus and the Ministry of Justice are widely believed to exert overt and covert influence over the decisions of investigating judges and trial courts.”

Many international human-rights groups have asked for a UN tribunal, fearing that a Cambodian trial would be a “whitewash” designed to try Ta Mok as a scapegoat and let most remaining Khmer Rouge leaders off the hook.

“The creation of an ad hoc tribunal by the Security Council is the most effective way of bringing those responsible for the killing fields to justice,” said Michael Posner, executive director of the Lawyers Committee for Human Rights. “Attempts to try Khmer Rouge officials before domestic courts should be rejected as a sham.”

Ta Mok was one of only a few Khmer Rouge commanders who had refused to deal with Phnom Penh in recent years. By contrast, Ieng Sary, Pol Pot’s former deputy prime minister, accepted a government amnesty in 1996.

Last year, following Pol Pot’s death, two other senior officials, Nuon Chea and Khieu Samphan, surrendered to the government; both were allowed afterward to visit Phnom Penh without being arrested.

Current Prime Minister Hun Sen clearly desires a trial that will do as little as possible to hurt the status quo, in which the Khmer Rouge movement – ousted by a Vietnamese invasion in 1979 – has been reduced to a spent force.

However, Ieng Sary, Khieu Samphan and Nuon Chea still have forces under their command who are now regarded as troops of “autonomous” Cambodian zones; the Cambodian government is aware that those forces could return to fighting if their leaders are tried in court.

Prospects of a Security Council-approved tribunal remain low as long as China still holds the threat of vetoing the proceedings. Beijing supported Pol Pot’s regime, and clearly is unwilling to delve into the genocidal killings, reports of forced labour and other crimes linked to its ally.

Chinese Ambassador Qin Huasun underscored that point forcefully on Friday, arguing that Beijing would oppose any effort by the Security Council or General Assembly “to impose a tribunal” on Cambodia. “The question of Cambodia is entirely an internal affair of the Cambodian people,” Qin said.

One UN official said on condition of anonymity, the pressure was on Annan “to deliver a moral argument for a trial.” Annan’s letter to the Council was part of that process, the official said.

Yet ultimately, Hun Sen’s support is needed for any effective trial to take place, as even critics of a domestic trial focusing on Ta Mok admit.

“Cambodian cooperation is essential to the success of the tribunal’s investigations and prosecutions,” Posner said.

And he added: “If the (Cambodian authorities) will not cooperate voluntarily, the tribunal must have the legal authority to oblige them to do so.”