Sunday, August 26, 2007

Craig Etcheson: "A Fair and Public Trial", Political History of the Extraordinary Chambers

Justice Initiative 7
The Extraordinary Chambers are the
result of years of complex and tendentious
negotiations between the
UN and the Cambodian government.
Craig Etcheson reviews their history.
The many unique aspects of the
Khmer Rouge Tribunal—its unusual
mix of local and international staff at
every level, including co-prosecutors
and co-investigating judges, and a
majority of Cambodian judges, as well
as its “supermajority” decision-making
mechanism—can only be understood
through its political history.
The Extraordinary Chambers (EC)
in the Courts of Cambodia, as the
Khmer Rouge Tribunal is now officially
known, was arrived at following
seven long years of difficult negotiation
between the Cambodian government
and the United Nations.
On December 25, 1978, Hun Sen
commanded exiled Cambodian armed
forces invading Cambodia from
Vietnam to overthrow the Khmer
Rouge regime.1 Exactly 20 years later
to the day, on December 25, 1998, the
two remaining senior Khmer Rouge
political leaders, Nuon Chea and
Khieu Samphan, formally surrendered
to Hun Sen, by then prime minister
of Cambodia. This event, following
on the 1998 death of Pol Pot,
struck many as signaling the end
of the Khmer Rouge. After 30 years
of war, the political leadership of
the Khmer Rouge appeared finally
vanquished. The surrender of the
movement’s top political leaders
launched a new round of dialogue
about Khmer Rouge accountability
for war crimes, genocide, and other
crimes against humanity.
By this time, the ruling Cambodian
People’s Party had demonstrated a
long-standing rhetorical commitment
to holding the perpetrators of the
Khmer Rouge genocide accountable.
In 1995, an international conference
on genocide justice was held in
Phnom Penh, Cambodia’s capital.
Hun Sen participated, and publicly
declared support for trying the leaders,
arguing that “this is not about politics,
it is about justice.”2 On June 21,
1997, the then co-prime ministers
of Cambodia, First Prime Minister
Prince Norodom Ranariddh and
Second Prime Minister Hun Sen, sent
a letter to the UN Secretary-General
requesting international assistance in
bringing the Khmer Rouge to justice.3
Just before the leaders’ surrender,
a UN Group of Experts, appointed
by Secretary-General Kofi Annan in
response to the Cambodian request,
had visited Cambodia to investigate
A “Fair and Public Trial”:
A Political History of the
Extraordinary Chambers
8 Open Society
The Extraordinary Chambers
Khmer Rouge culpability for war
crimes, genocide, and other crimes
against humanity. However, the prime
minister appeared to have had a
change of heart the moment the UN
experts left. Hun Sen greeted the
fallen rebel leaders by declaring that
Cambodia should “dig a hole and bury
the past.”4
The tribunal’s origins:
a tale of two plans
Before the Group of Experts’ report was
presented to UN Secretary-General
Kofi Annan on February 18, 1999, the
Cambodian government had already
decided against its likely recommendations.
5 They instead initiated a series
of confusing and apparently contradictory
changes in position. First, the
government publicly discussed the
possibility of establishing some form
of truth commission as an alternative
to a tribunal for the Khmer Rouge.
Foreign Minister Hor Nam Hong sent
an inquiry to Bishop Desmond Tutu
in South Africa to ask about possible
assistance in creating an institution
for Cambodia modeled on South
Africa’s Truth and Reconciliation
Commission.6 Almost immediately,
however, on March 6, 1999, Khmer
Rouge military chief Ta Mok was
captured, and the government once
again changed course, now declaring
that Cambodia would hold a domestic
trial for Ta Mok alone. As Hor Nam
Hong expressed it, “When you try
Ta Mok, it will not be only him, but
the whole Khmer Rouge system, the
whole top leadership.”7
In their report, meanwhile, the
Group of Experts recommended that
the United Nations model a tribunal
for Cambodia on the existing ad hoc
international tribunals for the former
Yugoslavia and Rwanda, situating
it near, but not in, Cambodia, and
limiting personal jurisdiction to those
“most responsible” for serious violations
of international humanitarian
law, and temporal jurisdiction to the
period of the Khmer Rouge regime
from April 17, 1975, to January 7,
1979.8 They also recommended a trust
fund for reparations to victims of the
Khmer Rouge, broadcasts of the tribunal
sessions to the Cambodian people,
and consideration of some form of
truth commission as an adjunct to, but
not a replacement for, the judicial
When he transmitted the Report
of the UN Group of Experts to the
UN Security Council and General
Assembly, along with news of the
Cambodian government’s newest
plan to try only Ta Mok, the Secretary-
General wrote that in his view
“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.”9 With prodding
from the Secretary-General’s special
representative for human rights in
Cambodia, Thomas Hammarberg,
Before the Group of Experts’ report was
presented to Kofi Annan, the Cambodian
government had already decided against
its likely recommendations.
the Cambodian government agreed
to entertain a new initiative from
the United Nations. The UN’s Office
of Legal Affairs labored through the
spring of 1999 to define a new model
of “international” justice: a “mixed”
tribunal which would be established
under Cambodian domestic law and
be seated in Phnom Penh, but which
would still be dominated by international
personnel in order to ensure
that impartial justice would be done.
Yet when negotiations began in
August 1999, Sok An, Cambodia’s
minister in charge of the Office of
Council of Ministers, presented the
UN delegation with Cambodia’s own
draft charter for a Khmer Rouge tribunal.
10 The plan presented by Sok An
proposed a fundamentally national,
rather than international, tribunal.
Under the draft charter, the court of
first instance for prosecution of the
Khmer Rouge would be the existing
Phnom Penh Municipal Court. There
would be two levels of appeals, also
within existing Cambodian judicial
structures. A majority of personnel at
all levels of the judicial process would
be Cambodians, with the rest “internationals.”
All legal personnel, international
as well as domestic, would be
appointed by the Cambodian Supreme
Council of the Magistracy. Not everyone
was happy with this formula,
as the independence of both the
Phnom Penh Municipal Court and
the Supreme Council is questionable—
both have been accused of political
taint.11 In addition to the proposed
institutional structures, Sok An’s
draft incorporated the Genocide
Convention into Cambodian domestic
law, but with the crime of genocide
redefined to fit precisely the crimes
of the Khmer Rouge (mainly by
extending it to include crimes against
political and economic groups). The
draft further specified that this new
definition would be retroactive.
In response, the UN delegation
noted that the Secretary-General’s
requirement that any Khmer Rouge
tribunal should be “international in
character”12 could not be met simply
by arbitrarily grafting a few foreign
lawyers onto existing Cambodian judicial
institutions. UN Assistant
Secretary for Legal Affairs Ralph
Zacklin also objected to the retroactive
definition of genocide. He argued that
any Khmer Rouge perpetrators who
might evade conviction on charges of
genocide due to the Genocide
Convention’s narrow wording could be
convicted of crimes against humanity
for the same acts.13 The UN presented
the Cambodians with its own draft
charter for a Khmer Rouge tribunal.14
The UN plan called for one trial chamber
and one appeals chamber, with
a majority of international personnel
in both.
The significant gap between these
two positions was not bridged in the
August negotiations,15 during which
Cambodian Tribunal Task Force
Chairman Sok An suggested to Ralph
The UN labored to define a new model of
“international” justice: a “mixed” tribunal
established under Cambodian domestic
law, but able to ensure impartial justice.
Justice Initiative 9
10 Open Society
The Extraordinary Chambers
Zacklin that the two sides work from a
single text, rather than from differing
UN and Cambodian versions, in order
to avoid possible confusion. Zacklin
ignored this request, as did the UN’s
next negotiator, Legal Counsel Hans
Corell, after him.16 As a result, during
the coming years of negotiations,
the two sides were rarely talking about
the same text.
The case for a
Cambodia-based tribunal
In a September 1999 meeting with
UN Secretary-General Kofi Annan,
Prime Minister Hun Sen offered
two reasons for Cambodia’s attachment
to a primarily national court.
The first was legal: under the
Genocide Convention, Cambodia had
the primary obligation to try crimes
within its jurisdiction.17 The second
was the long-standing tolerance of
the UN and its members toward
the Khmer Rouge. The international
community had “allowed [the Khmer
Rouge] to sit at the UN while they
committed genocide from 1975-1979.
This group continued to occupy the
seat until 1982 and from 1982 to 1993
was part of a tripartite coalition
government and legal party of the
Supreme Council of Cambodia under
the Paris Peace Accord.”18 Prime
Minister Hun Sen then described
three “options of participation or
non-participation” for the UN in a
Cambodian tribunal: to provide legal
personnel, including nominating
international judges and prosecutors;
to provide legal expertise, but no
personnel; or to end its involvement
altogether.19 After this terse meeting,20
a long waiting period ensued.
The Cambodian government’s willingness
to go it alone appears to have
been bolstered also by a desire for
a national process to generate reconciliation
and unity. On September 20,
after meeting with Kofi Annan,
Hun Sen addressed the UN General
We are firmly resolved to do whatever
is needed to provide an open
trial of those responsible for genocidal
crimes in the country in the
past. In holding this trial we will
carefully balance, on the one hand,
the need for providing justice to
our people who were victims of
this genocidal regime and to finally
put behind us the dark chapter
of our national history with, on the
other hand, the paramount need
for continued national reconciliation
and safeguarding the hardwon
peace, as well as national
independence and sovereignty,
which we value the most.
Ominously, the Cambodian government
position also received the support
of high-level Khmer Rouge.
On September 2, Ieng Sary released a
statement from his quasi-autonomous
zone in western Cambodia, declaring
that he “supports resolutely the [Royal
Government’s] idea and stance on
U.S. mediation managed to achieve
a compromise that would permit the
international community to endorse
Cambodia’s tribunal plans.
defending national sovereignty by
taking for priority the existing national
tribunal in collaboration with foreign
judges and prosecutors whose number
is lesser than those from Cambodia.”22
Ieng Sary had been the Khmer Rouge
deputy prime minister and foreign
minister, and significant evidence has
been amassed suggesting that he fed
victims into the Khmer Rouge killing
machine.23 Thus, Ieng Sary would be
a prime target of any independent
genocide prosecutor and his endorsement
of the government plan raised
questions about Hun Sen’s good faith
in his negotiations with the UN.
One observer described the situation
at this point as a “lose-lose”
scenario for Cambodia.24 On the one
hand, any step back from the strong
stand on Cambodia’s sovereignty and
capacity to conduct the trials would
constitute a serious loss of face. The
opposition Sam Rainsy party had been
arguing all along that an internationally
controlled tribunal alone would
suffice. On the other hand, if the
Cambodian government were to
proceed with a national tribunal for
the Khmer Rouge, little or no international
funding or expertise would be
forthcoming, and the outcomes would
be vulnerable to criticism. Cambodia’s
judicial underdevelopment had created
a general presumption that fair
trials on this politically fraught issue
would be impossible.25
United States mediation
When negotiations between Cambodia
and the UN stalled in September 1999,
the United States attempted to bridge
the gap.26 U.S. mediation with the
Cambodian government managed to
achieve a compromise that would
permit the international community
to endorse Cambodia’s tribunal plans.
In December 1999, the Cambodian
government delivered a dramatically
revised new draft of the proposed
tribunal law to the UN. The new draft
incorporated both the suggestions
of the UN’s Legal Affairs Office and
the compromises reached with the
United States’ mediators. References
were eliminated to retroactive application
of law, and a proper definition of
genocide was incorporated.27 Basic due
process protections for defendants,
previously absent, were now included.
The proposed “special” tribunal
would consist of a court of first
instance and an appeals chamber, both
situated outside existing Cambodian
judicial institutions. Cambodian
jurists would comprise a majority
of the personnel at all levels of the
court, but at least one international
jurist would have to concur with the
decision of the majority in order
for any decision to stand—a system
known as “supermajority.” The prosecution
would include investigating
magistrates and prosecutors, with one
Cambodian and one international
cooperating in each institution.
The UN responded positively to the
proposal, but continued to seek some
Justice Initiative 11
One observer described the
situation at this point as a
“lose-lose” scenario for Cambodia.
12 Open Society
The Extraordinary Chambers
mechanism to ensure that judicial
independence would be obtained in
the proceedings. The new draft
addressed the issue through rhetorical
fiat, rather than proposing concrete
institutional arrangements. Article 12
of the new draft law stated, “The
judges shall be independent in performance
of their functions and shall
not accept or seek instructions from
any government or any other source.”
But merely asserting that the judges
shall be independent does not make
them independent in fact. It is possible
that, having had little or no experience
of judicial independence, the
Cambodian government did not fully
appreciate the issue or the importance
attached to it by the UN and other
observers. Concerns about political
interference in the tribunal were only
increased every time the prime minister
made peremptory declarations
about how many and which suspects
would be vulnerable to prosecution.28
Early in January 2000, the United
Nations responded to the latest
Cambodian draft with a “non-paper”
of legal concerns.29 UN Under-
Secretary-General for Legal Affairs
Hans Corell led a team of negotiators
to Phnom Penh in March to ensure
the judicial mechanism would “reach
international standards.”30 Corell
insisted the UN could accept a
Cambodian majority in a court operating
by “supermajority,” but only if
the international prosecutor was fully
independent and did not require
agreement with a Cambodian co-prosecutor.
The Cambodians refused
point blank. Requiring agreement
between the Cambodian and international
prosecutor could potentially
allow the government to thwart prosecution
of certain former members of
the Khmer Rouge, a case in point
being Ieng Sary, the former foreign
minister and deputy prime minister
of Democratic Kampuchea. Prime
Minister Hun Sen has repeatedly and
publicly declared that Ieng Sary
should be protected from prosecution
by the Extraordinary Chambers.31
Again, American intervention broke
the impasse.
A compromise formula was proposed
by U.S. Senator John Kerry,
who knew Hun Sen personally
and had taken a long interest in
Cambodia’s national reconciliation.32
His compromise reapplied the
so-called supermajority principle to
potential disputes between co-investigating
magistrates or co-prosecutors.
Where the Cambodians and internationals
disagreed over whether to
investigate or prosecute a particular
person, the dispute would be referred
to a specially constituted panel of
three Cambodian and two foreign
judges drawn from tribunal chambers,
who would decide the issue based
on the supermajority voting principle.
Unless four of five judges disagreed,
A compromise was proposed
by U.S. Senator John Kerry, who had
taken a long interest in Cambodia’s
national reconciliation.
the disputed investigation or prosecution
would go forward. The
Cambodian negotiators had proposed
a similar special panel of three foreign
judges and two Cambodians, except
that supermajority agreement would
be needed for a prosecution to go
ahead—which would allow any two
Cambodian members of the panel to
block a prosecution. Kerry eventually
persuaded Hun Sen to abandon this
transparent attempt at political control
over prosecutions.
By the end of the July 2000 negotiations,
there seemed to be some
confusion as to what exactly had
been agreed. The UN laid out the
arrangements on the prosecution
and judiciary in a Memorandum
of Understanding, that also included
the agreed terms of the tribunal’s
temporal jurisdiction (April 17, 1975,
to January 7, 1979) and potential
indictees (senior Khmer Rouge and
those “responsible for the most
serious violations”). However, Sok An
insisted that the government could not
formally agree to any arrangement
with the UN until the relevant text
had been passed by parliament and
adopted as law. Correll argued that
it was standard international practice
for a government first to agree with
the UN and then submit the agreement
to parliament.33 But, as one
member of the Sok An’s Task Force
put it, the Cambodians were “adamant
that the National Assembly [would]
not just rubber-stamp something
the government has signed off on with
the UN.”34 The UN laid down a marker
giving the Cambodian government
a deadline of the autumn convening
of the UN General Assembly to pass
the draft law in precisely the form
“agreed” in the July negotiations.35
The Cambodian parliament acts
The Cambodian government missed
the UN’s deadline, finally moving the
draft legislation to the parliament on
November 20, 2000. The parliamentary
Legislative Commission reviewed
the proposed legislation, and made
a few changes. One of these was
significant. On the grounds that
only members of the Cambodian Bar
Association have the right to practice
law in Cambodia, the commission
modified the text in such a way that
foreign defense attorneys would be
prohibited from directly addressing
the tribunal; they would be limited to
advising Cambodian attorneys. This
change did not account for the role
of foreign prosecutors and judges, and
violated the UN’s requirement that
defendants in the tribunal must be
permitted to select defense counsel
of their choice. To put Cambodian
defense lawyers—the great majority
of whom have limited legal knowledge
of international crimes—up against
Justice Initiative 13
To put Cambodian defense lawyers—the
great majority of whom have limited legal
knowledge of international crimes—up
against an experienced international
prosecutor would be manifestly unfair.
an experienced international prosecutor
would be manifestly unfair, and
a violation of defendants’ rights
under the International Covenant on
Civil and Political Rights, to which
Cambodia is a party.
Once vetted by the Legislative
Commission, the draft law was sent to
the full National Assembly for debate
on December 29, 2000. Tribunal Task
Force Chairman Sok An briefed the
assembly at great length, discussing
the history of international tribunals,
the principles which guided the
government during the drafting of
the law (emphasizing the search for
justice, the importance of maintaining
peace, political stability, and national
unity, and respect for Cambodia’s
national sovereignty), the history of
the international negotiations leading
up to the draft law, and the “major
compromises” that, he asserted, the
government had made in (purportedly)
reaching agreement with the UN. 36
Minister Sok An told the members of
parliament that the government had
made five major concessions or compromises
in the course of the negotiations.
These were the agreements 1)
to include foreign jurists in the
Cambodian court system; 2) to permit
what the minister called a “blocking
minority” on the bench of the court
(otherwise designated as the “supermajority”);
3) to allow a foreign
co-prosecutor and a foreign co-investigating
magistrate; 4) to implement
a “Pre-Trial Chamber” mechanism,
by which disputes between co-prosecutors
or co-investigating magistrates
would be resolved; and 5) not to
request any amnesties or pardons.
The assembly debate was long and
lively.37 Finance Minister Keat Chhon,
a member of the government team
defending the proposed law (and
former ranking advisor to Pol Pot),
succinctly summarized the case for
the law by answering his own rhetorical
question, as someone who had
lived near the heart of the terror. “For
what?” he asked. “For the next day,
[that] there will be no terror of killing,
on the land of this country or other
countries . . . . ” He argued for unanimous
approval of the measure on the
grounds that “This is for memory and
justice. In practice, we are strengthening
peace, national agreement and
national reconciliation, transforming
and developing our country. . . . ” On
January 2, 2001, the draft was unanimously
passed with all 92 members
present signifying approval; 30 members
were absent from parliament
that day, including the president of the
National Assembly, Prince Norodom
Although the Cambodian government
was shepherding through parliament
a bill which had supposedly
been carefully negotiated with the
United Nations, the government had
not in fact provided a copy of their
14 Open Society
The Extraordinary Chambers
The Cambodian government
had not in fact provided a copy
of their final draft to the UN.
final draft to the UN. The United
Nations did not obtain a copy until
January 3, the day after it was passed
by the National Assembly. Six days
later, Hans Corell wrote to Sok An to
raise a number of “matters of concern”
in the law as passed, arguing that
these concerns should “be taken into
account at the Senate stage of the
discussion of the law, since this may
be the last opportunity to make adjustments
to the law before it is finally
adopted and promulgated.”38
Serious issues raised by Corell concerned
the power to appoint foreign
personnel to the tribunal, amnesty,
defense counsel, and the rules of
procedure for the tribunal.39 Language
requiring UN input or control over
the appointment and replacement
of international personnel, including
judges, had disappeared from the
adopted law. Corell insisted it must
be reinserted. A second area of
contention was amnesties. The UN’s
July 7 proposed draft of the tribunal
law stated that the government would
not request an amnesty or pardon
from Cambodia’s king for any person
indicted by the tribunal, and that
previous amnesties would be no bar
to prosecution. The law as passed by
the Cambodian parliament dropped
the second half of this formulation.
This question, which was deemed
absolutely central by the UN, primarily
concerned Ieng Sary, who had been
granted an amnesty.40 The accused
right to counsel of their choice was
a third issue. A fourth concerned
the rules of procedure to be adopted
for the conduct of the tribunal. The
UN’s July 7 draft tribunal law stated
that the court would proceed under
“existing procedures in force,” meaning
Cambodian criminal procedure,
but that these could be modified,
“if necessary,” by reference to international
rules of procedure. However,
the version of the law passed by
the parliament added the phrase,
“if there are lacunae in these existing
procedures,” to that formulation.
This change seemed to suggest that
the tribunal might proceed contrary
to international judicial standards, so
long as procedures contrary to international
practices were enshrined in
domestic legislation or existed on the
books as administrative regulations.
This provision gave rise to a fear at the
UN that “adherence to international
standards” would not be a feature of
the Khmer Rouge tribunal.
The consequences of the early failure
to agree on a single working
text were increasingly clear. The draft
tribunal law the UN believed had
been agreed upon was not the same
as the one that the Cambodians
were pushing through parliament.
The UN had neglected to assign
a responsible UN officer to remain
in Phnom Penh for the duration of the
process to stay closely engaged with
Justice Initiative 15
The draft tribunal law the UN believed
had been agreed upon was not the
one that the Cambodians were
pushing through parliament.
Sok An’s Tribunal Task Force. The
resulting confusion about divergent
versions of the draft law was creating
suspicions at the UN that the
Cambodians were acting in bad faith,
further poisoning the process. Sok An,
however, argued that these concerns
should be dealt with not in the
draft to be discussed by the Senate, but
in the context of the yet-to-be-agreed
Memorandum of Understanding
between the UN and the government.
41 The Senate debated the version
passed by the National Assembly,
and in another animated and often
poignant debate, passed it unanimously
on January 15, 2001.42 It still
took seven more months for the law to
complete the final stages of ratification:
review by the Constitutional
Council (which recommended an
amendment);43 amendment;44 second
passage through
both houses of parliament and
the Constitutional Council;45 and finally
approval, on August 10, 2001,
by the king, His Majesty Norodom
Throughout this time, the UN was
not supplied with a full translation of
the final law, and contact with the government
continued to be acrimonious.
47 A delay ensued while the
United Nations awaited translations of
the law,48 and it was another month
before the UN’s Office of Legal Affairs
could respond substantively (the small
office was tied up with the final negotiations
for the Special Court for Sierra
Leone). The UN response finally came
on October 10, in another letter from
Hans Corell to Sok An, detailing 11
problematic issues in the law, mostly
those already raised in the previous
letter of January 7.49 In late January,
Sok An replied that most of the issues
raised by Corell reflected misunderstandings
on the part of the UN that
could be addressed in the promised
Memorandum of Understanding
between the UN and the Royal
Government.50 Two weeks later, the
UN pulled out of the process.
February 2002: the UN balks
On February 8, 2002, Hans Corell
convened a press conference in New
York to inform the world that the
Secretary-General had instructed him
to end the affair. “The United Nations
has come to the conclusion,” Corell
announced, “that the Extraordinary
Chambers, as currently envisaged,
would not guarantee the independence,
impartiality, and objectivity
that a court established with the support
the United Nations must have.”51
It had been 18 months since any faceto-
face encounter between the UN and
Cambodian negotiating teams.
The Cambodian government
was shocked, as were others.52
Condemnation of the UN decision
poured in from all corners of
the international community. U.S.
16 Open Society
The Extraordinary Chambers
Divergent versions of the draft law were
creating suspicions at the UN that the
Cambodians were acting in bad faith.
Ambassador to Cambodia Kent
Wiedemann said his government
was “extremely disappointed” by the
decision, and urged the Cambodians
to remain open to a resumption of
talks with the UN.53 France, Japan,
and a chorus of other nations also
registered unhappiness with the
move, calling on the Secretary-General
to reconsider his action.54
The Secretary-General was
unmoved. Human rights groups
applauded his stand as “principled,”
and urged him to hold fast.
“Participating in trial procedures
which are not fair would serve only
to undermine UN human rights
standards, and sell the Cambodian
people short,” Amnesty International
declared.55 Human Rights Watch
said that, “Given the failure of the
Cambodian government to address
the concerns about the tribunal raised
more than a year ago, we feel the
UN acted appropriately.”56 The most
poignant voice in support of the UN’s
withdrawal from the tribunal process
came from domestic human rights
groups in Cambodia. The Cambodian
Human Rights Action Committee,
a coalition of 18 Cambodian human
rights groups, expressed sorrow at
the turn of events, but reluctantly
endorsed the UN decision.57 The
Action Committee said,
We also ask the UN to refuse
participation or support for any
process which does not meet
international standards. With
regard to individual member
states of the UN, CHRAC urges
them not to consider participating
in any tribunal unless it is held
under the auspices of the UN.
There the matter rested through
the winter, spring, and summer of
2002, with more precious time lost to
the quest of achieving accountability
for the crimes of the Khmer Rouge.
As if to underline the urgency, on
February 15, exactly one week after the
UN withdrew from the negotiations,
senior Khmer Rouge military commander
Ke Pauk died peacefully of
natural causes at age 68.58 He was one
of the handful of remaining Khmer
Rouge leaders who met the criterion,
“those most responsible for the most
serious violations.” The others were
old, as well, so it would only be a matter
of time before they too might
escape justice through death.
The “group of interested
states” intervenes
During 2002, international opinion
slowly coalesced around an action plan
to reverse the UN withdrawal. A group
of some three dozen interested countries,
led by Japan, France, Australia,
and the United States, worked quietly
in the background to restart negotiations.
Success came when Annan told
Hun Sen that the UN would return
Justice Initiative 17
Somehow, the two sides completed
the negotiating sessions, culminating
in a January 13 meeting between the
Cambodian delegation and Kofi Annan.
to the tribunal negotiations—if, and
only if—the UN Security Council
or General Assembly issued a “clear
mandate” for negotiations. The informal
group of countries now set about
drafting such a mandate in the form
of a UN General Assembly resolution.
A first draft was withdrawn by
its main sponsor, Australia, after the
Cambodian government refused to
co-sponsor it. A next draft, spearheaded
by Japan and France in close
consultation with Sok An’s Tribunal
Task Force, received the backing
of 150 votes and none against in the
UN General Assembly on December
18, 2002.60 Thirty countries abstained,
however, including most of the
European Community nations, a
group that had been at the forefront
of the push for a renewed negotiating
mandate. The Swedish delegate
summarized their reservations:
“to require the Secretary-General to
resume negotiations based on a text
which did not address the failings of
the last negotiations risked leaving the
perpetrators of crimes during the
Khmer Rouge period with impunity
and did not guarantee international
legal standards.”61
Soon afterward, Hans Corell
opened the new talks in New York
by suggesting that Cambodia’s Khmer
Rouge tribunal law was so deeply
flawed that the only sensible course
was for Cambodia to abandon the law,
and for negotiations to begin from
scratch, using the original proposals
laid on the table by the UN in August
1999.62 Sok An protested that this
did not reflect the intent of the
General Assembly. Somehow, however,
the two sides completed a series
of substantive negotiating sessions,
culminating in a January 13 meeting
between the Cambodian delegation
and Kofi Annan. The Secretary-
General was uncharacteristically
cold and unyielding. There was no
point in holding further discussions,
he informed Sok An, unless Hun Sen
first agreed to the UN’s conditions in
writing. The Cambodians departed
New York empty handed.
Then on February 13, 2003, three
weeks after Sok An had returned
to Phnom Penh, a delegation of diplomats
from the United States, France,
India, Japan, the Philippines, and
Australia met with Kofi Annan and
Hans Corell to express their displeasure
over the Secretariat’s interpretation
of the December 18 resolution.63 They
insisted that Cambodia’s Khmer Rouge
tribunal law be taken as the basis of
negotiation for a tribunal agreement.
The UN Secretariat finally caved in.
On March 13, Corell arrived in Phnom
Penh at the head of a UN delegation,
and the UN and Cambodian
teams hammered out a final draft
Memorandum of Understanding. Sok
An seemed pleased, telling reporters,
“We have traveled a long road.”64
Under-Secretary Corell, by contrast,
said, “My hands are tied.”65 When
asked directly if the agreement would
provide for judicial independence, the
UN’s chief legal counsel demurred: “As
an international civil servant I have
been given the task to negotiate this text
and I have done so to the best of my
ability. My personal opinion is a different
matter.”66 Nevertheless, he insisted
that the draft agreement was “designed
18 Open Society
The Extraordinary Chambers
to ensure a fair and public trial by an
independent and impartial court.”67
On May 1, 2003, the UN General
Assembly’s Third Committee convened
to debate the draft agreement
between the UN and Cambodia on the
Khmer Rouge tribunal. Cambodian
Ambassador Ouch Borith spoke
passionately in favor of the measure.68
“I’ll never forget the days when 12
members of my family and more than
2 million of the Cambodian people
were executed and buried in mass
graves,” Borith told the gathered
members of the Third Committee.69
What happened under the Khmer
Rouge regime, he continued, “still
haunts me and my people, and
I cannot wipe out this nightmare
either. One must listen to what the
Cambodian holocaust survivors have
to say.” He added:
It is also very important to understand
that the Law adopted by our
legislature was the outcome of
the complex negotiations between
Cambodia and the UN, and contains
within it a number of significant
compromises made by both
parties. We have requested not
only international assistance but
also international participation
in the trials and we have agreed
to share with the international
community the heavy task of
judging the serious crimes committed
in our own country by our
own people.
The next day, May 2, the agreement
was passed by consensus, despite
significant misgivings in statements
from the Dutch and Swedish delegations,
and U.S. abstention. It was
formally adopted on May 13.71
Cambodia’s Council of Ministers had
by then approved the draft agreement.
72 The next step was for
Cambodia to adopt appropriate
amendments to its existing 2001
tribunal law in order to bring that
statute into conformity with the UN
Agreement. This process was completed
in October 2004, marking the finalization
of the statute of the Khmer
Rouge tribunal in its present form.
Hun Sen and his chief negotiator,
Sok An, had out-negotiated two of the
UN’s most senior civil servants, Kofi
Annan and Hans Corell. Whether the
outcome of this long struggle will
indeed be “a fair and public trial,” as
Hans Corell promised in the wake of
his defeat, is the next test.
Justice Initiative 19
Craig Etcheson is a visiting scholar at Johns Hopkins University’s School of Advanced International
Studies. He is the author of several books on the Khmer Rouge, including After the Killing Fields:
Lessons from the Cambodian Genocide (2005) and the forthcoming Extraordinary Chambers: Law,
Politics and War Crimes Tribunals.
1. Samdech Hun Sen, Cambodia’s present prime minister, defected from the Khmer Rouge to
Vietnam in 1977. He became foreign minister in the Cambodian government that followed the
Vietnamese overthrow of the Khmer Rouge in 1979 and prime minister in 1985. Following
UN-run elections in 1993, Hun Sen was co-prime minister together with Norodom Ranariddh.
A coup in July 1997 returned him as sole prime minister.
2. Author’s notes from the “International Conference on Striving for Justice: International Criminal
Law in the Cambodian Context,” Phnom Penh, August 21, 1995.
3. Letter from Cambodian co-prime ministers Norodom Ranariddh and Hun Sen to UN Secretary-
General Kofi Annan, June 21, 1997; distributed on the Internet via the Camnews news group, June
25, 1997.
4. Chris Fontaine, “Cambodia Premier Says No to Trial,” Associated Press, December 28, 1998.
5. A senior minister of the Royal Government outlined this chronology privately for the author in
March 1999.
6. Author’s interview with Hor Nam Hong, March 13, 1999, New York.
7. Author’s interview with Hor Nam Hong, March 13, 1999, New York.
8. The Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135,
by Ninian Stephen, chairman, Rajsoomer Lallah, and Steven R. Ratner, dated February 18, 1999, is
presented as an annex to the United Nations document, Identical Letters Dated 15 March 1999 from
the Secretary-General to the President of the General Assembly and the President of the Security Council,
A/53/850 and S/1999/231, March 16, 1999.
9. Identical Letters.
10. “Projet: Loi relative à la répression des crimes de génocide et des crimes contre l’humanité,”
typescript, n.d., n.p. (August 26, 1999, Council of Ministers, Phnom Penh, Cambodia).
11. Amnesty International has said of the Supreme Council of the Magistracy, “Serious questions
remain about its independence. . . . The Supreme Council of Magistracy has yet to demonstrate that
it has either the will or the ability to protect the independence of the judiciary.” See Law and Order—
without the Law, Amnesty International, March 1, 2000 [ASA 23/001/2000]. For more on questions
of judicial independence and corruption at the Phnom Penh Municipal Court, see, for example,
Lee Berthiaume and Park Chan Thul, “‘Iron Fist’ Court Reform Seizes One of Its Own,”
The Cambodia Daily, August 19, 2005.
12. UN A/53/850, Identical Letters, 3.
13. These comments were made both in writing (“Comments on the Draft Law Concerning the
Punishment of the Crime of Genocide and Crimes Against Humanity,” August 27, 1999, annex
to a letter from Assistant Secretary-General Ralph Zacklin to His Excellency Sok An, minister of
state, Royal Government of Cambodia) and verbally (“Aide Memoire: Second Meeting between the
Cambodian Task Force on the Khmer Rouge Tribunal and the visiting UN Delegation,” Council
of Ministers, Phnom Penh, Cambodia, August 28, 1999).
14. “Draft: Law on the Establishment of a Tribunal for the Prosecution of Khmer Rouge Leaders
Responsible for the Most Serious Violations of Human Rights,” annex to a letter from Assistant
Secretary-General Ralph Zacklin to His Excellency Sok An, minister of state, Royal Government
of Cambodia, August 27, 1999.
15, For more details on the political maneuvering that animated these twists and turns in the negotiations,
see Craig Etcheson, “The Politics of Genocide Justice in Cambodia,” 178-202 in Cesare
P.R. Romano, André Nollkaemper, and Jann Kleffner (eds.), Internationalized Criminal Courts:
Sierra Leone, East Timor, Kosovo and Cambodia, London: Oxford University Press, 2004.
16. For Zacklin’s rebuff of Sok An’s request, see “Aide Memoire: Second Meeting between the
Cambodian Task Force on the Khmer Rouge Tribunal and the Visiting UN Delegation,” Council
of Ministers, Phnom Penh, Cambodia, August 28, 1999.
17. See Article VI, Convention on the Prevention and Punishment of the Crime of Genocide, UN
General Assembly, December 9, 1948.
18. “Aide Memoire on the Conversation between Hun Sen, Prime Minister of the Royal Government
of Cambodia, and H.E. Kofi Annan, Secretary-General of the United Nations,” September 17, 1999,
New York [unofficial translation].
20 Open Society
The Extraordinary Chambers
19. Aide Memoire, September 1999. The Cambodian need for legal expertise was and remains
widely recognized. In their June 21, 1997, letter to the UN Secretary-General requesting assistance
in establishing a genocide tribunal, for example, co-premiers Norodom Ranariddh and Hun Sen
observed that “Cambodia does not have the resources or expertise” necessary to conduct such a
complex procedure. Letter on file with the author.
20. A UN spokesman described the discussions between Hun Sen and Kofi Annan as “frank.”
United Nations, “Read-out of the Secretary-General’s Meeting with Hun Sen, the Prime Minister
of Cambodia,” September 16, 1999.
21. Remarks of Hun Sen before the United Nations General Assembly on September 20, 1999,
as excerpted in the New York Times; see “U.N. Oratory: Pleas for Help, Pride in Democracy,”
September 21, 1999.
22. “Statement of the Democratic National Union Movement on the so-called ‘UN Plan,’”
September 2, 1999, Pailin, Cambodia; signed by Ieng Sary.
23. For some of the documentary evidence of Ieng Sary’s culpability in the mass killing, see
Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide, Westport, CT:
Praeger Publishers, (2005), Chapter 5, “Centralized Terror,” 210, fn 12.
24. See Tony Kevin, “Cambodia vs the UN,” Far Eastern Economic Review, November 11, 1999.
25. See Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building,
New Haven: Yale University Press, 2003, Chapter 11, for background on the politicized nature
of the Cambodian judicial system.
26. Some in the UN found the nature of U.S. diplomacy unnecessarily secretive. See, for example,
“Efforts to Establish a Tribunal against the Khmer Rouge Leaders: Discussions between the
Cambodian Government and the UN,” paper presented by Ambassador Thomas Hammarberg at
a seminar organized by the Swedish Institute of International Affairs and the Swedish Committee
for Vietnam, Laos and Cambodia, Stockholm, May 29, 2001. On page 23, Hammarberg notes,
“Though the U.S. intervention in some respects was helpful, it would have been more useful
if there had been better coordination with the UN efforts or with other governments.”
27. Unofficial translations of two different December 1999 Cambodian drafts of the proposed
“Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecution
of Crimes Committed during the Period of Democratic Kampuchea” are on file with the author.
28. See, for example, “Cambodian PM Stands behind Pol Pot Lieutenant as Trial Debate Looms,”
Agence France-Presse, November 30, 1999.
29, United Nations, “Non-Paper on Khmer Rouge Trial,” January 5, 2000.
30. Kofi Annan after the February 12 meeting with Hun Sen, quoted in Hammarberg, “Efforts to
Establish,” 27.
31. Examples of Hun Sen defending the impunity of Ieng Sary abound. At one juncture, for
instance, Hun Sen alluded to double jeopardy protections for Ieng Sary, asking, “How can a person
be convicted twice for the same crime?” See “Hun Sen Reiterates Preference Not to Try Ieng Sary,”
Kyodo, September 24, 2000. Nine weeks later, in reference to a proposal to annul the 1996 royal
decree granting Ieng Sary amnesty, Hun Sen flatly said, “I will not do that.” See “Cambodian PM
Stands behind Pol Pot Lieutenant as Trial Debate Looms,” Agence France-Presse, November 30,
32. This paragraph is based on the following sources: “Hun Sen Welcomes Trial Suggestions
from U.S. Sen. Kerry,” Associated Press, April 18, 2000; “Hun Sen Withdraws Acceptance of
U.S. Formula on Trial,” Associated Press, April 25, 2000, Kyodo; and Ker Munthit, “Deal Reached
on Cambodia Tribunal,” Associated Press, April 29, 2000.
33. Private communication with the author from a member of the UN tribunal negotiating team,
August 17, 2000.
Justice Initiative 21
34. Private communication with the author from a member of the Cambodian Task Force, March 22,
35. Reflecting both the growing frustration at the UN with the lengthy negotiations and the decision
to set a deadline for a positive Cambodian response, Under-Secretary Corell told reporters “The
Secretary-General has indicated that there is a time limit. . . we can’t continue in this way.” Quoted
in “U.N. Urges Swift Action on Khmer Rouge Trial,” Reuters, Friday, July 7, 2000. And despite the
national/international mix of this new model of justice, Corell also observed, “This is not a United
Nations operation. It is a national court with international presence.” Puy Kea, “U.N. Legal Team
Leaves Cambodia,” Kyodo, July 7, 2000.
36. “Presentation and Comments on the Draft Law on the Establishment of Extraordinary Chambers
in the Courts of Cambodia for Prosecution of Crimes Committed during the Period of Democratic
Kampuchea, by His Excellency Sok An, minister in charge of the Office of the Council of Ministers,
President of the Task Force for Cooperation with Foreign Legal Experts and Preparation of the
Proceedings for the Trial of Senior Khmer Rouge Leaders,” 5th Session of the 2nd Legislature,
National Assembly, December 29, 2000, and January 2, 2001. (Unofficial translation by the
Documentation Center of Cambodia).
37. “A Minute on the Session of the National Assembly of the Kingdom of Cambodia, A Draft Law
on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecution of
Crimes Committed during the Period of Democratic Kampuchea,” December 29, 2000, and
January 2, 2001. (Unofficial translation by Sorya Sim and Vichea Sopheak Tieng, Documentation
Center of Cambodia.)
38. Letter from UN Under Secretary-General Hans Corell to Minister of the Council of Ministers
Sok An, January 9, 2001. Letter on file with the author.
39. The following paragraph is based on a letter from UN Under Secretary-General Hans Corell to
Minister of the Council of Ministers Sok An, January 9, 2001. Letter on file with the author.
40. Ieng Sary’s 1996 Royal Pardon, granted by King Norodom Sihanouk at the request of co-prime
ministers Norodom Ranariddh and Hun Sen, was a matter of consistent contention over the course
of the tribunal negotiations. See Etcheson, After the Killing Fields, 130-1.
41. “UN Unhappy with Cambodia’s Proposed Treatment of Ieng Sary,” Kyodo, January 13, 2001.
42. “Cambodia Passes Khmer Rouge Law,” Associated Press, January 15, 2001. In the course of the
debate, Senator Keo Bunthouk highlighted the political complexity of the situation by questioning
whether or not Foreign Minister Hor Nam Hong, a close ally of Prime Minister Hun Sen, should be
subject to an investigation by the tribunal, asserting that Hong had sent victims to their deaths at
the infamous S-21 extermination center. See Kay Kimsong, “Senate Continues Spirited Debate on
KR Bill,” The Cambodia Daily, January 12, 2001. Another senior senator directly challenged Prime
Minister Hun Sen’s frequent comments to the effect that Ieng Sary should be held harmless by the
tribunal. The chairman of the Senate Legislative Committee, Ouk Bun Thhoeun, argued that it was
not for Hun Sen to decide who would and who would not be prosecuted. “In fact no one can prohibit
the activities of the court. His (Hun Sen’s) comment is his own opinion, but according to the law
it’s up to the court prosecutors to determine who will be prosecuted.” “Cambodia Khmer Rouge
Tribunal Should Start In ’01 - Hun Sen,” Associated Press, January 11, 2001.
43. “Cambodia Constitutional Council OKs Khmer Rouge Trial Bill,” Kyodo, February 12, 2001. See,
for example, Ray Johansen, “Article for ‘Searching for the Truth’ Concerning Allegation by the
Government that the Khmer Rouge Trial Law Refers to a Death Penalty,” distributed by the
Documentation Center of Cambodia, June 6, 2001. The Constitutional Council said that a reference
to the 1956 Penal Code, which included the death penalty, should be eliminated as the death penalty
was no longer constitutional in Cambodia.
44. Personal communication from Sorya Sim of the Documentation Center of Cambodia, June 22,
22 Open Society
The Extraordinary Chambers
45. “Draft Law For Khmer Rouge Trial Amended; No Death Penalty,” Associated Press, June 22,
2001; “No Obstacles To Adoption of KR Tribunal Law,” Associated Press, July 11, 2001. “Cambodia
Senate Passes Khmer Rouge Trial Law,” Reuters, July 23, 2001. “Khmer Rouge Atrocities Trial Law
Clears Hurdle,” Reuters, August 7, 2001. “King Norodom Sihanouk Signs Khmer Rouge
Legislation,” Agence France-Presse, August 10, 2001.
46. “King Norodom Sihanouk Signs Khmer Rouge Legislation,” Agence France-Presse, August 10,
47. Barbara Crossette, “Pact Sought on Khmer Rouge Trials,” New York Times, June 28, 2001. See also
United Nations, “Secretary-General Clarifies Position on Cambodian Government Responsibility For
Trials of Former Khmer Rouge Leaders,” SG/SM/7868, June 27, 2001. “Cambodia PM Comments
Raise Doubts On Khmer Rouge Tribunal,” Associated Press, June 29, 2001. Gary Thomas,
“Cambodian Leader Criticizes UN Over Tribunal,” Voice of America, June 29, 2001.
48. United Nations, “UN Looks Forward to Receiving New Cambodian Law on Khmer Rouge Trials,
Secretary-General’s Spokesman States,” SG/SM/7911, August 10, 2001. “English Translation of
Cambodia’s Tribunal Law Delayed,” Kyodo, August 22, 2001.
49. Private communication with the author from a senior official of the UN Office of Legal Affairs,
October 28, 2001.
50. Thet Sambath and Matt Reed, “Letter to UN Details Government Stand on Tribunal,” The
Cambodia Daily, January 23, 2002.
51. United Nations, “Daily Press Briefing by the Office of the Spokesman for the Secretary-General,”
February 8, 2002.
52. “Cambodia Stunned by UN Withdrawal from Khmer Rouge Trial,” Agence France-Presse,
February 9, 2002.
53. Chhay Sophal, “Cambodia Says Keeping Door Open for U.N. on Trial,” Reuters, February 10,
54. See, for example, Matt Reed and Thet Sambath, “UN-Backed KR Trial Still a Possibility,” The
Cambodia Daily, February 11, 2002.
55. Cambodia: Flawed Trials in No One’s Best Interests, Amnesty International, February 11, 2002.
56. Cambodia: Tribunal Must Meet International Standards, Human Rights Watch, February 12, 2002.
57. Cambodian Human Rights Action Committee, press release, February 21, 2002.
58. See, for example, Seth Mydans, “As Trials Lag, Death May Save Khmer Rouge From Justice,”
New York Times, February 19, 2002.
59. “Cambodia ‘May Compromise’ on Genocide Trial,” BBC News, July 2, 2002; “UN Rejects
Cambodia’s Bid to Revive Khmer Rouge Trial,” Reuters, July 3, 2002; “Mandate from Key UN
Bodies Needed to Restart Talks on Khmer Rouge Trials–Annan,” UN News Centre, August 20,
60. United Nations, General Assembly, France and Japan: Draft Resolution, Khmer Rouge Trials,
A/C.3/57/L.70, November 13, 2002; United Nations, General Assembly, Khmer Rouge Trials,
A/RES/57/228, December 18, 2002.
61. United Nations, press release, GA/SHC/3728, November 20, 2002.
62. The following account is based on the author’s private conversations with UN and Cambodian
government officials in January 2003.
63. Tom Fawthrop, “Khmer Rouge: ‘Last Chance’ for Justice,” Asia Times Online, February 19, 2003.
Justice Initiative 23
64. “Cambodia: Draft Agreed for KR Genocide Tribunal,” Bangkok Post, March 18, 2003; Reach
Sambath, “UN Team Arrives in Cambodia for ‘Last Chance’ Talks on Khmer Rouge Tribunal,”
Agence France-Presse, March 13, 2003.
65. Personal communication from Tom Fawthrop, March 18, 2003.
66. Transcript, “Hans Corell interview,” BBC East Asia Today, March 17, 2003.
67. “UN and Cambodia Reach Draft Agreement for Prosecuting Khmer Rouge Crimes,”
UN News Centre, March 17, 2003.
68. United Nations, General Assembly, Third Committee, GA/SHC/3733, May 1,2003.
69. Statement by His Excellency Ouch Borith ambassador, permanent representative of the
Kingdom of Cambodia to the United Nations at the Third Committee of the 57th Session of
the United Nations General Assembly, New York, May 1, 2003.
70. “Netherlands Statement on the Khmer Rouge Trials,” UN General Assembly, May 2, 2003;
“Swedish Statement on Khmer Rouge Tribunal,” UN General Assembly, May 2, 2003; United
Nations, General Assembly, Third Committee Approves Draft Resolution on Khmer Rouge Trials,
GA/SHC/3734, May 2, 2003.
71. United Nations, General Assembly, General Assembly Approves Draft Agreement between UN,
Cambodia on Khmer Rouge Trials, GA/10135, May 13, 2003.
72. “Cambodian Cabinet Approves Khmer Rouge Trial Draft,” Agence France-Presse, March 28,
24 Open Society
The Extraordinary Chambers

No comments: