How the Khmer Rouge  Tribunal Was Agreed

DOCUMENTATION CENTER OF CAMBODIA

Phnom Penh, Cambodia

Searching for the truth – Khmer version 2001

Magazine of Documentation Center of Cambodia

How the Khmer Rouge tribunal was agreed:

discussions between the Cambodian government and the UN

Part I: March 1997- March 1999

by Ambassador Thomas Hammarberg

During my first mission to Cambodia (June 1996) it immediately became clear to me that the Khmer Rouge crimes in the 1970's still cast a paralysing shadow over Cambodian society. The killings of educated professionals had left gaps that still crippled the judiciary, the government administration, including the health and education structures. The moral impact was even more profound. The fact that no one had been held accountable for the mass killings and other atrocities had clearly contributed to the culture of impunity which was still pervasive in Cambodia.  

Wherever I went in Phnom Penh or in the provinces I made a point of discussing the Khmer Rouge legacy and what ought to be done. One message became clear: the crimes were not forgotten. Almost everyone I met was personally affected, had suffered badly and/or had close relatives who died. Even now, more than two decades later, the overwhelming majority wanted those responsible to be tried and punished. The only argument against arrests and trials was the risk of further unrest and civil war. However, I heard many voices saying that not even that should be accepted as a reason to avoid seeking justice.

Decision-makers, almost without exception, had emotional and painful memories of the Democratic Kampuchea period in the seventies. King Sihanouk had tried to reason with the Khmer Rouge, been humiliated and even had family members killed. Hun Sen and several of his CPP colleagues had joined the Khmer Rouge movement, and had later defected to the Vietnamese side. Several of them had also lost family members. It is important to recognise this dimension of the Cambodian drama in order to understand the apparent inconsistencies in the discussion outlined below.  

The issue of justice became even more acute in 1996 as the Khmer Rouge movement drifted into crisis. Though some military activity still continued along the border in the north and north-west and bandit raids plagued villages and fishing communities (not least those with ethnic Vietnamese inhabitants), there were clear signs of breakdown. Both FUNCINPEC and CPP initiated tentative contacts with segments of the Khmer Rouge movements. They both offered generous conditions: continued control over some territory, autonomy, resources, good positions also within the military ranks and de facto amnesties. This had an impact. In August 1996, the former Khmer Rouge Deputy Prime Minister for Foreign Affairs Ieng Sary defected with a couple of thousand soldiers and split the Khmer Rouge movement.

This led to a contradictory situation. First, it became obvious that it would no longer be possible to avoid a real discussion about justice – and about international standards. The process organised in 1979 by the Vietnamese-dominated administration had been flawed and there was a consensus that this exercise had not provided the ultimate legal response to the crimes committed.

The second phenomenon was the competition between the two major parties in Phnom Penh to attract defectors into their ranks. In military terms the CPP had had the upper hand since the large UN peacekeeping mission, known as UNTAC, had left in late 1993, but there was a possibility that a flow of defecting Khmer Rouge troops into FUNCINPEC might change that. Hence, the disintegration of the Khmer Rouge heightened the tensions within the coalition government. Clearly, both Prime Ministers, the FUNCINPEC-leader Prince Norodom Ranariddh and the CPP-leader Hun Sen, hesitated to push for a Khmer Rogue trial in this situation.  

However, the amnesty given to Ieng Sary in September 1996, in the name of �gnational reconciliation�h, was controversial. The two Prime Ministers had requested the King to grant an amnesty - which he did. However, Prince Ranariddh told me afterwards that he really did not want to support the amnesty request but, as Hun Sen had insisted, he had agreed in the end.  

Even within the CPP there was considerable unhappiness about the amnesty. Hun Sen, for his part, later explained to me that the purpose of the amnesty was to encourage more defections. Also, the amnesty decree for Ieng Sary had been deliberately formulated so that it protected him only against the punishment meted out at the 1979 tribunal (death sentence) and the possible prosecution for having violated a 1994 law banning Khmer Rouge activities. Though this did lead to more defections, there would remain an unclarity about nature of the amnesty given to Ieng Sary and whether he was protected – or not – against being indicted in a genuine trial for his actions in the 1970's.

Commission resolution

What was the UN position on a trial? In order to start the process of clarifying this, I suggested informally during the UN Commission on Human Rights session in April 1997 that a paragraph be included in the Cambodia resolution. The paragraph should mention the possibility of international assistance to enable Cambodia to address past serious violations of human rights. The Commission included the following in its Cambodia resolution 1997/49 on 11 April 1997:

"Requests the Secretary-General, through his Special Representative for Human Rights in Cambodia, in collaboration with the Centre for Human Rights, to examine any request by Cambodia for assistance in responding to past serious violations of Cambodian and international laws as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability".

The June 1997 letter

In June 1997 I discussed the implications of the resolution with the two co-Prime Ministers and pointed out that the UN might respond positively to a request for assistance so that the Khmer Rouge crimes would at long last be addressed. I first approached Prince Norodom Ranariddh as he had appeared to be hesitant about the effects of the tribunal discussion on his possibilities to attract defectors. This was also a period when the relationship between the two leaders was at a low ebb - the government was next to paralysed.  

The Prince agreed to sign such a request but asked me to draft the letter for him. I said I was willing to give him such technical help but the letter should be considered as his and Hun Sen�fs. The same afternoon he had the proposal and signed it. I reported these developments to Hun Sen during our subsequent meeting. He said that he of course would sign, that to defeat the Khmer Rouge had for him been a lifelong battle.

On 21 June 1997 a letter went off to the Secretary-General asking �gfor the assistance of the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979�h.

The letter further stated:

�gCambodia does not have the resources or expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for the assistance of the United Nations. We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be given to Cambodia.�h

�gWe believe that crimes of this magnitude are of concern to all persons in the world, as they greatly diminish respect for the most basic human rights, the right to life. We hope that the United Nations and the international community can assist the Cambodian people in establishing the truth about this period and bringing those responsible to justice. Only in this way can this tragedy be brought to a full and final conclusion.�h

This letter since then figured in every discussion between the UN and the Cambodian government on the Khmer Rouge issue. When received in New York it was circulated to the members of the Security Council, but it became instantly obvious that it was controversial. The Chinese delegation made clear that it did not want to put the topic on the Security Council agenda. I met with the Office of Legal Affairs in the UN Secretariat and suggested that a Secretariat approach be prepared.

In essence, the initial response from both the leading Member States and from the Secretariat was unenthusiastic and somewhat confused. One political factor might have contributed. In early July the tensions between the two coalitions parties in Phnom Penh – and armed troops on both sides – had exploded in a military confrontation. Forces loyal to CPP had started disarming the other side. The Second Prime Minister emerged victorious after having staged a decisive coup. Prince Ranariddh, who had just slipped out of the country, was declared as ousted by Hun Sen. FUNCINPEC party headquarters were raided and its files confiscated. The opposition Khmer Nation Party – headed by the former Finance Minister Sam Rainsy – suffered the same treatment. The National Assembly was temporarily closed and non-CPP radio and television stations were closed or taken over. Throughout July and August the UN received and investigated numerous reports of FUNCINPEC military officers having been systematically killed.

One of the declared excuses for this clampdown was that Prince Ranariddh had had secret contacts with Khmer Rouge leaders and that he had brought a great number of  Khmer Rouge soldiers to Phnom Penh (in fact there were some defectors among the troops on both sides in Phnom Penh; and it was never convincingly shown that FUNCINPEC had brought in significant numbers).

At the same time, the disintegration of the Khmer Rouge movement had speeded up. In June Son Sen, the former Deputy Prime Minister for Defence, had been killed together with his family, on orders from Pol Pot. It became obvious that the remaining leadership was falling apart in a bitter internal struggle. Brother Number One himself was tried by a �gpeople's court�h close to the Thai border in late July and sentenced to lifelong detention. More defections were now to be expected, and there were fears that this would increase the tensions between the major parties even more.

How would these dramatic developments affect the sensitive dialogue with the United Nations on co-operation for bringing the Khmer Rouge leaders to justice? Was the 21 June request still backed by the key parties?

The 1997 General Assembly

My next meeting with Hun Sen was held in early September. It naturally focused on the memorandum I had just submitted to the government on the post-coup killings. In spite of the inevitable confrontation on that subject, Hun Sen clarified that the 21 June letter was still valid, as did other CPP leaders I met, including the party chair and President of the National Assembly, Chea Sim and the Deputy Prime Minister and co-Minister of Interior, Sar Kheng.

King Sihanouk gave full support to the efforts on the Khmer Rouge issue outlined in my General Assembly report, telling me that if this initiative was not pursued, there would never be an end to impunity in Cambodia. He added that he himself was willing to be called to a tribunal to explain his own relationship to the Khmer Rouge regime. "This is my duty", he said.

Later in September I met Prince Ranariddh, and the other leaders of the post-coup opposition in a hotel room in New York. They were there to present their case to the international community and to lobby for a General Assembly decision that Norodom Ranariddh be recognised as the legitimate representative of the Cambodian government - or that Cambodia should be deprived of its seat in the Assembly (the latter became the decision). The leader of Khmer Nation Party, Sam Rainsy, and the leader of BLDP-Son Sann, Son Soubert, were present. Referring to my recent meeting with the King, I asked for their assurance that the recent political developments had not changed their position of support for the 21 June letter. After a moment of silence, the Prince solicited the views from the politicians in the room. One by one they nodded in support and the Prince then summarised their unanimous assent.

As a strange historic coincidence, the issue that could have become deeply divisive, turned out to be the only one on which all political forces now agreed. On that basis I urged the General Assembly to respond positively and generously to the Cambodian request for assistance.

How should the process start? It was clear that it was premature at this stage to recommend one particular model, for instance an ad hoc tribunal similar to the one on former Yugoslavia in the Hague. There was a need for an intermediate step to allow for some informed discussion about the nature and scope of the crimes, the status of evidence, what law to apply and the most suitable process. It was already now obvious that it was important to discuss in some depth the interrelationship between domestic and international aspects.

In the case of former Yugoslavia a Commission of Experts had been appointed to assemble and assess evidence before the tribunal had been set up. A similar commission had been established in the case of Rwanda whose task included giving recommendations on ways to achieve accountability. In the Khmer Rouge case the task would need to be somewhat different – with more emphasis on giving advice on the best process. The term "Commission" would need to be avoided in order not to give the impression that the model of former Yugoslavia was used. As a first step, I therefore recommended to the General Assembly – not the Security Council - that the Secretary-General be authorised to appoint experts to evaluate the existing evidence of responsibility for the Khmer Rouge human rights violations and propose further measures.

This is how the point was covered in the General Assembly resolution on 12 December 1997 on Cambodia (52/135):

"Desiring that the tragic history of Cambodia requires special measures to assure the protection of the human rights of all people in Cambodia and the non-return to the policies and practices of the past, as stipulated in the Agreement signed in Paris in 1991; "

Endorses the comments of the Special Representative that the most serious human rights violations in Cambodia in recent history have been committed by the Khmer Rouge and that their crimes, including the taking and killing of hostages, have continued to the present; and notes with concern that no Khmer Rouge leader has been brought to account for these crimes;  

Requests the Secretary-General to examine the request by the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, including the possibility of the appointment, by the Secretary-General, of a group of experts to evaluate the existing evidence and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability."

In January 1998 the High Commissioner for Human Rights, Mary Robinson, visited Cambodia. She discussed the General Assembly resolution with Government representatives and noted that the international community had responded positively to its request for assistance in addressing the gross violations committed during the Khmer Rouge regime 1975-79. The Government welcomed the proposal to appoint a team of experts to evaluate the existing evidence and propose further measures.

The formulations in the General Assembly resolution were also included in the resolution on Cambodia adopted by the 1998 Commission on Human Rights on17 April.

Renewed support

The death of Pol Pot on 15 April 1998 was a reminder that time was running out; other Khmer Rouge leaders were ageing and might have health problems.

After the reports on the �gtrial�h of Pol Pot near Anlong Veng in July 1997, the US government worked on a scheme to capture Pol Pot at the Thai-Cambodian border and to bring him to another country for trial. The Thai government was said to have agreed to co-operate with this plan (though Thai representatives gave me a somewhat different version). I was also informed that Canada, Denmark, Sweden and Israel, among others, had been approached by US representatives about hosting such a trial. The UN was not formally informed about these diplomatic activities and I was personally critical of the way the plan was pursued. In the end no country was prepared to host this type of trial.

In April, two weeks after Pol Pot�fs death, the US delegation at the United Nations circulated a draft Security Council resolution which, if adopted, would have established an ad hoc tribunal in the Netherlands, modelled on the tribunal on former Yugoslavia. China was clearly negative and it was reported that also Russia and France had problems with the US initiative.

During my mission to Cambodia in April-May 1998, I again discussed the tribunal issue in detail with Hun Sen, who affirmed that he was still behind the request in the 21 June 1997 letter. He stated that it was important that the Khmer Rouge leaders at long last were brought to justice, but felt that recent US activities had complicated the situation.

On a more concrete level, he talked about a plan of his to arrest �gthe three�h (I understood him to refer to Noun Chea, Khieu Samphan and Ta Mok), which had been disturbed by the recent publicity. Regarding Ieng Sary he repeated that the amnesty decree was formulated in a way that did not protect him from new procedures relating to genocide. In fact, he said, he had convinced Ieng Sary to be available if an international tribunal was set up.

However, he raised two problems. First, there was a risk that public discussion at this particular time about bringing Khmer Rouge leaders to a tribunal would discourage further defections. He made clear that he was still working on the remaining Khmer Rouge units in order to convince them to give up fighting. The other problem was the risk that a public debate on this matter would disturb the campaign for the 1998 elections (to be held in late July). I explained that a systematic analysis of evidence and options for proceedings would take some time and that a proposal could not be ready before later in the autumn, if then.

He said he would welcome the arrival of a group of experts and was willing to appoint some Cambodians to dialogue with the experts. He underlined that the group should not be bound in advance by a particular solution, for instance, that the tribunal would be an extension of the existing Hague tribunal. Neither would he want it to be decided at this time that the proceedings must take place in Cambodia. This aspect should remain open for the moment and be analysed by the experts before decisions are taken.

At the end he repeated his support for the approach developed through the General Assembly resolution and afterwards. He said - with an obvious reference to a suggestion at the time from the US - that he did not think it was necessary that he wrote a second letter with the same request. Such a move would also have raised the complicated issue of who should sign the letter together with him; the legitimacy of the new First Prime Minister, Ung Huot, was not recognised by many. "I ask you to convey my position to the Secretary-General", he said.

He also repeated that he hoped there would not be much publicity at this stage about the issue.

Prince Ranariddh, whom I met in Bangkok, stated that the June 1997 letter was still valid and that he stood firmly behind it. He said he wanted to give his full support to our efforts and to the idea of bringing a group of experts to Cambodia in order to assess the evidence and propose further measures. He agreed that the experts should look into all possible options, but, personally, he felt that the best option probably was an international tribunal in the Hague.

During this mission I met the King again. He said that he gave full support to the idea of a tribunal and international co-operation on the issue. "This has to be done", he said. I explained the step-by-step approach and the point of analysing carefully the nature of existing evidence and the various possible modalities for the proceedings themselves. He affirmed that he was in full agreement.

I raised this issue also with co-Minister of Interior Sar Kheng and opposition politicians Sam Rainsy and San Soubert. They all gave an unequivocal answer of support and said that some proceeding indeed was important. Sar Kheng said he had been against giving amnesty to Ieng Sary and hoped that the latter could be brought to justice.

One thing was emphasised in several conversations: that the Cambodians wanted to be a full party to this discussion. "After all, this is our problem", it was often said. The possibility of organising a tribunal inside Cambodia with international staff (including judges and prosecutors) - but in co-operation with Cambodia – was clearly an option to analyse. Otherwise, the Cambodian representatives were generally open-minded about the approach to take. The idea of a Group of Experts as a first step seemed to be generally appreciated.

Hun Sen had spoken at some length about a "package" into which other crimes ought to be included, such as the American bombings in the early 1970's and the Chinese support for the Khmer Rouge. This was a theme to which he was to return several times during our forthcoming discussions – and sometimes also publicly. Though I would not deny that there was a historical context, I had to stress that the Khmer Rouge atrocities were unique in character. Indeed, the letter Hun Sen had signed in June 1997 was precise both on the time period and the particular crimes to be addressed. To widen the scope would be a recipe for no result on the whole issue.

At the end of this particular discussion in May 1998 he seemed to conclude that it would be advisable to limit the period to cover only April 1975 to January 1979.   

The Group of Experts

The fact that Hun Sen had publicly embraced a defected Khmer Rouge leader caused some sarcastic comments among opposition politicians during the election campaign in June-July 1998. At the same time, CPP alleged that Prince Ranariddh had some relationship with remaining Khmer Rouge forces under Ta Mok and Khieu Samphan. This point was amplified in the more rough party propaganda: both Ranariddh and Sam Rainsy were accused of collaboration with the Khmer Rouge.

Diplomats in Phnom Penh were very interested in the Khmer Rouge issue. During each mission I met them individually or as a group to give information on my meetings. On some occasions I also stopped over in Bangkok to brief those ambassadors who covered Cambodia from there. From the very beginning I benefited from the exchanges with Japan and the ASEAN countries. In May 1998 I formally introduced the subject to the then chair of the ASEAN troika, Foreign Minister Siazon of the Philippines. Deputy Foreign Minister Sukhumbhand of Thailand also showed particular interest.

In July 1998 the Secretary- General appointed the Group of Experts mentioned in the 1997 Assembly resolution. Sir Ninian Stephen (Australia), Mr. Rajsoomer Lallah (Mauritius) and Professor Steven Ratner (US) were requested (a) to evaluate the existing evidence with a view to determining the nature of the crimes committed by the Khmer Rouge leaders in the years 1975-79; (b) to assess, after consultation with the Governments concerned, the feasibility of bringing Khmer Rouge leaders to justice, their apprehension, detention, and extradition or surrender to the criminal jurisdiction established; and (c) to explore options for bringing to justice Khmer Rouge leaders before an international or national jurisdiction.

The Group met in New York in August for a briefing by myself and the Secretariat and for discussions with some of the UN delegations. Due to the political turmoil in Cambodia after the July elections it was decided to postpone the mission to Phnom Penh until 14-24 November. It then met government officials, representatives of the judiciary, non-governmental groups, diplomats and other experts. They visited the Cambodian Documentation Center, the National Archives and the Tuol Sleng museum (the previous school in Phnom Penh where the Khmer Rouge opened an interrogation centre and to which at least 16.000 people were brought for questioning and thereafter execution). Though the three experts were accompanied by a representative of the Office for Legal Affairs, it worked independently of the Secretariat and myself. My only advice to them was to explore with care the possibility of a strong "Cambodian component" in the process, including the option of holding the trial in Cambodia itself. The Group met again, in privacy, in January and submitted its report to the Secretary-General on 22 February 1999.

The Group concluded that the evidence gathered to date showed that serious crimes had been committed under both international and Cambodian law and that sufficient evidence existed to justify legal proceedings against Khmer Rouge leaders for these crimes. The crimes included crimes against humanity, genocide, war crimes, forced labour, torture, crimes against internationally protected persons, as well as crimes under Cambodian law.

The Experts reported that the feasibility of apprehending Khmer Rouge leaders depended on the ability and the willingness of the Government, in whose territory suspects are located, to arrest or extradite them. They concluded that the Cambodian Government was able to apprehend Khmer Rouge leaders in its territory whose location was known and who were not protected physically from arrest. In their meeting in November 1998 with Prime Minister Hun Sen, he expressed the Government's willingness and readiness to apprehend any person indicted by the independent prosecutor of the tribunal. The Thai government had expressed similar willingness.

The Experts analysed the following legal options for bringing to justice Khmer Rouge leaders:

a)      a tribunal established under Cambodian law in a domestic court;

b)      a tribunal established by the Security Council or the General Assembly as an ad hoc international tribunal;

c)      a hybrid option of a Cambodian tribunal under UN Administration;

d)      an international tribunal established by a multilateral treaty; and

e)      trials in third States.

Having considered these options, the Experts recommended that the United Nations, in response to the request of the Cambodian Government, should establish an ad hoc international tribunal to try Khmer Rouge officials for crimes against humanity and genocide committed from 17 April 1975 to 7 January 1979. They recommended that the Security Council should establish the tribunal or, should it not do so, that the General Assembly should do so. They also proposed that the Prosecutor of the International Tribunal for the Former Yugoslavia and of the International Criminal Tribunal for Rwanda serve as the Prosecutor of the new tribunal, with a Deputy Prosecutor specifically charged with direct responsibility for this tribunal.

The Experts, furthermore, recommended that the tribunal, including the office of the Deputy Prosecutor, be established in a State in the Asia-Pacific region, but not in Cambodia; that the Prosecutor establish an investigations office in Cambodia; and that the United Nations, in co-operation with the Cambodian Government, arrange for the unfettered dissemination of the proceedings in Cambodia by radio and television.   

They also recommended that, as a matter of prosecutorial policy, the prosecutor limit his or her investigations to those persons most responsible for the most serious violations of international human rights law. This would include senior leaders with responsibility for the violations as well as those at lower levels who were directly implicated in the most serious atrocities.

The Experts emphasised that the list of top governmental and party officials in Democratic Kampuchea might not correspond with the list of persons most responsible for serious violations of human rights. Certain top governmental leaders might have been removed from knowledge and decision-making while others not in the chart of senior leaders might have played a significant role.

This seems especially true, the Experts wrote, with respect to certain leaders at the zone level, as well as officials of torture and interrogation centres such as Tuol Sleng. The Experts recommended that the prosecutor exercise his or her discretion regarding investigations, indictments and trials so as to fully take into account the twin goals of individual accountability and national reconciliation in Cambodia.  

Another of their recommendations was that the UN, in co-operation with the Cambodian Government and the non-governmental sector, encourage a process of reflection among Cambodians to determine the desirability and, if appropriate, the modalities of a truth-telling mechanism to provide a fuller picture of the atrocities of the period of Democratic Kampuchea.

Negative government reactions

While the Experts were working on their recommendations, further defections had been announced. In late December 1998 Hun Sen received two key leaders from the Khmer Rouge, Nuon Chea and Khieu Samphan, in his residence outside Phnom Penh. Ieng Sary was present and seemed to have acted as an intermediary. In a symbolic sense this was a major event in Cambodian modern history. Though there was no doubt that the two old men had capitulated and came to pay their respect, Hun Sen appeared to turn the occasion into one of reconciliation and forgiveness. His statements were controversial and even took some of his ministers by bitter surprise. One metaphor he used was that "the time had come to dig a hole and bury the past" which appeared to be at odds with his support for a tribunal and the principle of justice.

Had there been a change of heart? Or had a price been paid for these crucial defections?

Hun Sen now stressed the importance of putting an end to civil war, that there might be a conflict between a trial and peace. When I met him in late January 1999 he handed me a memorandum for the Secretary-General, which raised the problem of maintaining peace while seeking justice. The memorandum also referred to the desirability of addressing crimes committed before 1975 and after 1979. The purpose of this memorandum was not clear to me. When I sought clarification he said that these points were only additional aspects for consideration by the Experts but should not be seen as a changed position; the 21 June 1997 letter was still valid.

The test would be the reaction to the report of the Group of Experts which was conveyed to the Cambodian UN mission in New York on 23 February. Unfortunately, the report had leaked to the media before that. There had also been some problems with the transmission to Phnom Penh from the Cambodian mission in New York and with the translation into Khmer language, all of which could explain some of the irritation that now appeared to surface in the Prime Minister's office and the Foreign Ministry.

On 3 March a first response was given to the Secretary-General . It was published immediately, though the Experts' report had not been made public at this stage. The reply said, in part:

"We have never rejected the accountability of the Khmer Rouge leaders for the crimes of genocide in Cambodia. We just want, however, to caution that any decision to bring the Khmer Rouge leaders to justice must also take into full account Cambodia's need for peace, national reconciliation, rehabilitation and economic development for poverty reduction. Therefore, if improperly and heedlessly conducted, the trials of Khmer Rouge leaders would panic other former Khmer Rouge officers and rank and file, who have already surrendered, into turning back to the jungle and renewing the guerrilla war in Cambodia."

The letter also said that the Government now was studying the South African Truth and Reconciliation Commission as a possible model for Cambodia.

These points were reiterated in a meeting between Minister for Foreign Affairs and International Co-operation, Hor Nam Hong, and me in Phnom Penh on 4 March.

On 6 March there was a further major development. One of the remaining key leaders, Ta Mok (or Chhit Choeun), the former secretary of the south-west zone and second deputy-secretary of the Communist Party of Kampuchea, was arrested at the Thai border in northern Cambodia and brought to a detention centre in Phnom Penh. From this moment the exchanges on a possible trial became much more real. The arrest also put time pressure on the discussions; according to Cambodian law no-one can be held in pre-trial detention for more than six months.

The following week Foreign Minister Hor Nam Hong was sent to New York to meet the Secretary-General and to deliver an aide-memoire. The document, dated 12 March 1999, starts with a reference to the fact that Democratic Kampuchea was allowed to occupy the Cambodian seat in the UN until the signing of the Paris Peace Accords in 1991. It says that the Khmer Rouge was legitimised through the Accords and also became seated in the Supreme National Council during the transition period. Obviously the message was about UN hypocrisy.

The aide-memoire, further, referred to the June 1997 letter of the two Prime Ministers and stated that there was no concrete response from the UN until the second half of November 1998. "Only when the process of gradual disintegration and capitulation of the Khmer Rouge leaders and the ranks and file virtually reached its conclusion, then the 3 UN Experts arrived in Cambodia on a Mission".

The surrender of Khieu Samphan and Noun Chea was described as a culmination of "the total collapse of the Khmer Rouge movement militarily and politically". The government would now focus on other priorities, primarily on economic development and poverty alleviation.

"... Ta Mok, as a top Khmer Rouge hard-liner, remains the most vicious murderer and has committed countless, most serious crimes until the very day he was captured by the Royal Cambodian Armed Forces... The process [against him] will ensure the standards of judicial fairness and effectiveness".

It appears that the tribunal had been considered as a means of defeating the Khmer Rouge. When this goal now had been achieved through other means, there was no need to try anyone else than the one person who had refused to surrender: Ta Mok. When referring to the process against him, international standards were not mentioned.

Two legal arguments were put forward. One was that the Genocide Convention did not require that the crime of genocide necessarily be tried in an international court; its Article VI mentions the possibility of domestic proceedings. The other point appeared to be more absolute: that Article 33 of the Constitution prohibited the government from arresting  and extraditing any Cambodian national to a foreign country. However, on scrutiny, neither of these arguments held up as particularly relevant or convincing (see below).

The Secretary-General had now received the advice of the Group of Experts and the negative comments from the government. On 15 March he submitted the report of the Experts to the General Assembly and the Security Council. In so doing, he expressed his own view that Khmer Rouge leaders responsible for the most serious of crimes should be brought to justice and tried before a tribunal which met the international standards of justice, fairness and due process of law. Impunity was unacceptable in the face of genocide and other crimes against humanity, he stated.

He emphasised that if such standards were to be met, the tribunal must be international in character. This did not necessarily mean that it should be modelled after the existing ad hoc tribunals or linked to them; other options could be explored taking into account the analysis and conclusions of the Group of Experts. He also underlined that the success of any international tribunal presupposed full co-operation of the Cambodian government.

Meeting with Hun Sen and others in March 1999

I met again with Hun Sen on 25 March. Others present included the Foreign Minister, the Minister of Justice Uk Vithun, the Senior Minister Sok An and the President of the Supreme Court, Dith Munthy. Normally, I had seen Hun Sen without the presence of other ministers; their attendance now seemed to stress the importance and finality of the discussion. Also, the day before the meeting another letter to the Secretary-General had been published which again made references to Article 33 of the Constitution and Article VI of the Genocide Convention.

The letter stated that the trial of Ta Mok would be conducted in a national tribunal and it welcomed legal experts from foreign countries - if they were invited by the domestic tribunal. Whether additional persons would be tried was to be decided by the court itself. (Privately, Hun Sen told me at the end of our meeting that Noun Chea and Khieu Samphan would be "invited" to the trial. However, it was not clear whether they would come as witnesses or defendants.)

Hun Sen said in his opening statement that there would be no international tribunal, outside or within Cambodia and that Cambodian law did not allow for the participation of foreigners as judge or prosecutor. Advisors from some countries might be accepted; it would be up to the prosecutor to decide on this. Governments interested in supporting the trial could relate to the Ministry for Foreign Affairs or the Ministry of Justice.

This position contradicted the June 1997 request for international assistance. The letter from Prince Ranariddh and Hun Sen had stressed that Cambodia did not have the resources or expertise to conduct this very important procedure. This particular problem had thereafter been analysed by the Group of Experts, which had concluded that the Cambodian judiciary failed to meet three essential conditions: a trained cadre of judges, lawyers and investigators; an adequate infrastructure; and a culture of respect for due process. (These deficiencies were, in part, the result of the mass killings during the Khmer Rouge regime which crippled the judicial system badly).

My own opinion was that the problems relating to the judicial system were so manifest that they could not be quickly remedied for the purpose of a trial of this magnitude through some advice only. Though the need for radical judicial reform had been a major theme in my human rights reports, it had to be realised that such a process of change would take considerable time. The Government's platform for 1998-2003 had emphasised the need for judicial reform, stating that "the judicial system and the courts are necessary to be entirely overhauled. By law they ought to be independent, honest and trustworthy".

It was clear that only a tribunal which was truly international in character could guarantee international standards of justice, fairness and due process of law. However, it was important that the Secretary-General had clarified that such a tribunal did not necessarily have to be modelled after either of the existing ad hoc tribunals (former Yugoslavia and Rwanda) or be linked to them institutionally, administratively or financially. There were openings here for other models.

However, there was no interest in such discussions at the 25 March meeting. The tone was negative, even polemical, as reflected in this statement by Foreign Minister Hor Nam Hong:

"The international community talks about finding justice for the Cambodian people. Cambodia agrees to find justice for Cambodians and for humanity.  But what has the international community been doing vis-à-vis the Khmer Rouge lately? Once the genocidal Khmer Rouge regime was toppled, the so-called international community continued to support the Khmer Rouge. The so-called international community forced Cambodia to accept the Khmer Rouge as partners in Paris peace talks and in the SNC. It said nothing about responsibility of the Khmer Rouge, let alone prosecution of them. But now that Cambodia has achieved peace and reconciliation, they call for an international tribunal. Can we trust them?

This is the moral aspect. Now for legal aspects. We Cambodians suffered most and are those who most want justice. Article VI of the Genocide Convention does not prohibit prosecution by a national court. Article 33 of Constitution does not allow Cambodians to be tried abroad. The proposed national prosecution is in line with law. International standards are not clear. We are ready to accept international assistance in order to respond to moral and legal aspects, and the desire for peace. Behind the so-called international community are one or two countries who push for an international tribunal. Some countries supported the Khmer Rouge until 1991. Do they love Cambodians more than the Cambodians themselves?"

The fact that these arguments were given such prominence, I felt, may have reflected internal difficulties within the government in maintaining intellectual standards. No international representative had said that the Genocide Convention excluded the possibility of a national trial, this was not an issue. The very wording of Article 33 of the Constitution did not support the Foreign Minister's interpretation: it only stated that there was a need for mutual agreement between the relevant governments before a national could be extradited. Such an agreement would probably not be a problem if an international tribunal was properly established and the Cambodian authorities were positively involved. The Prime Minister did not come back to these points when I made these clarifications.

He presented two arguments to explain the changed position from the 21 June letter. First, that the Khmer Rouge leaders still were active in June 1997 and threatened peace and stability. When they surrendered or, in the case of Ta Mok, had been arrested, the situation had changed. There was no longer any need for help from outside. The other argument was that the Chinese government exerted pressure against any international tribunal and when the Thai government had refused to arrest Ta Mok on Thai territory, Hun Sen could no longer claim that this was an international issue.

After 21 months: stalemate

The government discourse had grown polemical and irritated. The UN history on the Khmer Rouge was attacked, as were the previous and current positions of the US and China. The Thai government was even accused of "sabotage".

Also, arguments were made which were less than serious, such as that the Constitution did not allow co-operation with an international tribunal outside Cambodia. Moreover, there was the loose idea put forward - but never thoroughly analysed - of trying "the South African model", which was understood to be a truth commission based on voluntary confessions and forgiveness. My impression was that all these strands in the discussion more reflected a general unease with the whole situation than a clear and principled strategy.

In reality, the discussion had come to an impasse. Though not spelled out in black and white, the Prime Minister no longer stood behind the June 1997 letter. The shift appeared to have begun with the surrender of Khieu Samphan and Noun Chea and their December 1998 meeting with the Prime Minister. Hun Sen's memorandum on 21 January, though non-conclusive in approach, had hinted at arguments which later became prominent. One of them was the perception of a contradiction between peace and a tribunal.

This point, however, seemed to have less weight after the arrest of Ta Mok. There were no reports about security problems as a result of his being captured. It was also difficult to combine the position that the Khmer Rouge was now totally defeated and the argument that an international tribunal would lead to a new civil war. As a consequence two other points were given more emphasis. One was that it was "too late", the game was over. The other one related to Cambodia's sovereignty.

Hun Sen has obviously seen the international tribunal as an instrument to defeat the Khmer Rouge more than as a means of establishing justice. When Ieng Sary, Noun Chea and Khieu Samphan had surrendered and Ta Mok were under arrest, the tribunal became less important to him. But justice is a value in itself.

The Prime Minister's criticism against the UN for not acting more speedily on the June 1997 letter should be read against the fact that he himself had appealed to the UN not to move on this matter until after the July 1998 elections. The arguments for this request were that an already volatile situation should not be further disturbed and that the government needed some room to encourage further defections.

How late was the UN? The experts were appointed more than a year after the original letter from the Prime Ministers, in July 1998. They were ready to visit Cambodia in September but it was decided to postpone the mission until November due to the political tensions in August-September. The final report was delivered exactly 20 months after the original request from the government.

The time schedule was affected by the fact that the Security Council never formally discussed the letter and was clearly split on the issue. Only through the resolution in the General Assembly, in December 1997, was there a more formal reaction from a UN body opening the way for a Secretary-General initiative. If this, then, had been followed-up quickly, it just might have been possible to have the experts visiting Cambodia before the election fever had set in, which in turn might have produced another, more constructive, outcome.

Prime Minister Hun Sen stressed his point about "national sovereignty" in March 1999. This argument was always there, but had now become more dominant. The fact that the Cambodian government was isolated in the eighties - while a Khmer Rouge-dominated coalition was given a seat in the General Assembly – was still, understandably, a source of bitterness for Hun Sen and other CPP leaders. Also, Hun Sen had continued to be critical of the UN mission, UNTAC, in 1992-93. He maintained that the UN manipulated the elections in favour of FUNCINPEC.

One explanation for his inconsistencies on the tribunal issue was probably his deep-seated suspicion of the UN and the international community, which seemed to have increased with critical human rights reports. Another factor that he mentioned himself was the contradictory pressure exerted from the US and China.

National pride alone, however, did not solve the problem of the flawed judicial system. It was clear that the court system could not take on this task in a satisfactory manner, as was admitted in the June 1997 letter. The situation in that regard was little better now, 20 months later.

There were two major problems in the justice system. One was that court staff was still badly educated, inexperienced and under-resourced; this had obviously contributed to widespread corruption. The situation was made worse by the other problem: that the independence of the system was undermined also from outside. In my work I had frequently been faced with cases of improper pressure from powerful people, including politicians and military officers. All leading lawyers I had talked with were in agreement that Cambodia by itself just could not handle a Khmer Rouge tribunal relating to genocide and other crimes against humanity.

There was an implicit recognition of the first problem in the tentative invitation that had now been sent to some governments to provide legal advisors to a tribunal on the Khmer Rouge (at the time this was obviously considered by Hun Sen and his Foreign Minister as an alternative to an international tribunal). However, the problem of the integrity - and thereby the credibility - of the proceedings would not be satisfactorily addressed through such an approach. It was important that people at large could genuinely believe that justice was done. For that a stronger international element was needed, as the non-governmental groups had stated.

However, the Prime Minister had said at our March meeting that he felt the role of the UN on this issue had come to an end.

(end part I)

How the Khmer Rouge tribunal was agreed:  
discussions between the Cambodian government and the UN  
Part II: March 1999 – January 2001  

by Ambassador Thomas Hammarberg  
The "mixed" tribunal idea  

For the Prime Minister to close the dialogue with the UN on the Khmer Rouge tribunal was a big decision. There had been a very strong reaction, including within his own political party, against his meeting with Noun Chea and Khieu Samphan in December 1998. Indeed, my meetings in March 1999 with other politicians, including those from the CPP, indicated a broad support for a genuine trial based on international standards. They encouraged me to continue my efforts in spite of the stalemate.  

So did most of the foreign diplomats in Phnom Penh (and some of their collegues based in Bangkok). The Secretary-General had submitted the issue to the Security Council and the General Assembly through his 15 March 1999 letter with the report of the Group of Experts appended. The Chinese were actively working against any further UN initiative. In a meeting I had with the Chinese Ambassador in Phnom Penh, he argued that the issue of the Khmer Rouge was an "internal" matter and should not be dealt with by the UN – not even on a Cambodian invitation.  

However, a broader Member State reaction came at the 1999 session of the Commission on Human Rights, where Cambodia again was on the agenda. The resolution took note with appreciation of the report of the Group of Experts and strongly appealed to the Government of Cambodia to take all necessary measures to ensure that those who are most responsible for the most serious violations of human rights were brought to account in accordance with international standards of justice, fairness and due process of law. The Commission encouraged the Government of Cambodia and the international community to continue to co-operate for this purpose. In other words, the interest of the international community was reconfirmed.  

However, the international community had not taken position on the precise model proposed by the Group of Experts. The fact that the Cambodian government, at least sometimes, had stated that it wanted a trial, made it difficult for a number of governments to support the imposition of a particular approach on Phnom Penh. In fact, several diplomatic representatives I consulted showed sympathy for the idea that the tribunal be established in Cambodia, so long as its security and integrity could be protected. The message appeared to be: continue the discussions, your are free to explore other models as long as these meet the necessary standards.    

The next official move was another letter from Hun Sen on 28 April 1999 to the Secretary-General. He now explained that, though the trial of Ta Mok and possibly others would take place in an existing national court, foreign judges and prosecutors would be invited to take part fully in the trial in order to ensure that it met international standards of due process. A draft law would be submitted for approval to the Cambodian National Assembly allowing for foreign judges and prosecutors to take part in the proceedings.  

The formulation about the full participation of foreign jurists was not clear, but seemed to indicate that they could act as judges and prosecutors and not only as advisors. This opening gave rise to the idea of a "mixed tribunal" as a solution to the impasse between the UN and the government. The Secretary-General had given impetus to some creative thinking through his statement in March that the trial should be "international in character" but not necessarily modelled on the ad hoc tribunals on former Yugoslavia and Rwanda.  

It had also become more obvious that there were strong arguments for holding the trial in Cambodia itself. Though the Experts had proposed that the tribunal be held outside the country but in the Asia-Pacific region, this was not necessarily the last word. If problems of security and the tribunal's integrity could be resolved, there would be advantages of establishing it in Cambodia itself. This would, for instance, enable the Cambodian people to observe the proceedings closely and to see clearly that justice was being done.  

The idea of a "mixed tribunal" was discussed in a meeting in April between Hun Sen and the US Senator John Kerry who had supported the idea. One aspect of the approach was that there would be both Cambodian and international judges. Such a tribunal had never been set up. The idea was innovative, but it was obvious that it would be extremely complicated to implement.  

When I met Hun Sen on 18 May we discussed the idea further. He asked me, tentatively, whether it would be possible for the Secretary-General to make appointments of the international judges. I responded that any UN involvement in this connection would depend on whether there were full guarantees that international standards for justice, fairness and due process would be respected. The enabling legislation to be drafted and adopted for this purpose would have to address the concerns the Secretary-General had expressed in his letter of 15 March 1999 to the General Assembly and the Security Council. 

The emerging idea of a "mixed tribunal appeared to reflect an attempt to combine, on the one hand, the position that the trial must be held in Cambodia itself and seen to be Cambodian and, on the other hand, the introduction of the necessary guarantees that international standards would indeed be applied and upheld.  

The tribunal would be based on a law to be adopted by the Cambodian parliament. I pointed out that the report of the Group of Experts gave important guidance as to the characteristics of the required legislation both in relation to the substantive law and the procedural aspects. Relevant international standards would have to be incorporated and the applicability of the domestic legislation relevant at the time clarified.  

On the procedural aspects there would be a need to clarify, for instance, steps to ensure that the tribunal be protected against undue pressure; satisfactory arrangements for the arrest of persons indicted; requirements for the assessment of evidence; the procedures for appeal; a satisfactory mechanism for the appointment of the judges, prosecutors and other professional staff; as well as issues relating to the organisation and funding of the tribunal.  

Hun Sen stated that it would be very appropriate that experts should assist Cambodia in the drafting of the legislation to ensure that it met the necessary requirements of international standards. I undertook to convey this message to the UN Secretariat and to propose that such expertise be provided. Any further UN involvement after the drafting would depend on whether there was an agreement on the inclusion of guarantees that appropriate international standards be respected.  

I reported on these developments at meetings in the UN Secretariat in New York on 24 May and 10 June and recommended that expert assistance be given to the Cambodian government for this purpose. In view of the background and, in particular, the government reactions in March, it was decided that we should seek another confirmation from the Prime Minister of his intentions.  

I sent him a note summarising my understanding of our meeting in May, including his request that experts assist Cambodia in the drafting of the legislation to ensure that it met the necessary international requirements. He wrote back confirming that he was in agreement. He added, however, that he wanted the experts to arrive as soon as possible.     

The UN Office of Legal Affairs had undertaken to analyse the legal requirements in relation to a "mixed" tribunal. This would serve as a guide for the experts going to Phnom Penh. It would include provisions relating to the legal basis of the tribunal, its basic law or Statute, appointment of judges and a Prosecutor, guarantees for the arrest of Khmer Rouge leaders upon request of the tribunal and identification of needs for contribution in funds and personnel.

The analysis of the Group of Experts on both national law and international standards gave useful guidance on, for instance, the statutory limitation in the old Code Penal (relevant in 1975 when the Khmer Rouge took power) and the applicability of the Genocide Convention (e.g. the problem of whether there was an "intent") and standards relating to Crimes against Humanity (e.g. whether they apply outside an armed conflict situation).  

A special and difficult problem was the formulation on the personal jurisdiction of this particular tribunal – who could be charged? The Group of Experts had used the notion that only "the most responsible for the most serious crimes" be tried, an approach which also had been echoed in the General Assembly and Human Rights Commission resolutions. There was therefore a need to find a legal formulation which would limit the number of prosecutions without giving an implicit amnesty to those outside that limited group. The Group of Experts had concluded that this issue had to be resolved as a matter of "prosecutorial policy" .  

Already at this stage it was clear that two issues might be particularly difficult: the method of appointing judges and prosecutors, and the numbers of foreigners and Cambodians among them. The Prime Minister had asked whether the Secretary-General could appoint the internationals and I knew that he had, informally, discussed the possibility of a fifty-fifty division.  

With this approach to appointment, however, there was a clear risk that the selection of the Cambodian judges and prosecutors might get politicised. Also, it was important to avoid any perception of two "classes" or categories of judges and prosecutors. There were strong arguments for the same appointment mechanism for all of them. In other words, the Cambodian nominations should also be endorsed by the Secretary-General or by the impartial mechanism he would establish for this purpose. A procedure through which the international community could reject a Cambodian nomination would greatly increase the credibility of the tribunal in Cambodia.  

At the same time, it was important that the body in Cambodia involved in this would be a judicial structure, not the government. The obvious choice was the Supreme Council of Magistracy which, according the Constitution, was responsible, inter alia, for the appointment of judges and prosecutors. 

It was also clear that the discussion on the numbers of international and Cambodian judges and prosecutors might be affected by the decision-making rules. I wrote in an internal memo: "It would of course be safer to have a foreign majority among both prosecutors or judges. This will probably be difficult for the Cambodian side to accept (this is why the point about decision-making rules might be important). The essential point is that it should not be possible for the Cambodians – even if appointed from outside – to outvote the foreigners. There is of course a dynamic aspect here – the awareness that the Cambodian judges themselves cannot alone decide will reduce the risk of pressure."  

The internal discussions were also helped by a thoughtful contribution from the Lawyers Committee for Human Rights which stressed the importance of spelling out in the enabling law the right to defence and appeal and that witnesses be guaranteed security and protection, points which had not been well covered or covered at all in an early Secretariat draft.  

While the Office for Legal Affairs was working on these problems, there was a need to decide on the experts to go to Phnom Penh. I had some suggestions, but it turned out that the Office of Legal Affairs was interested in taking on this task directly. I welcomed this engagement, but the resulting delay had to be explained in Phnom Penh. It was important that the UN now acted with speed and determination. My hope had been that the legal experts would go at the end of June; as things developed and due to other commitments, they did not arrive until late August.  

In the meanwhile members of the Security Council were briefed. The outline of the Secretary-General's proposal became widely circulated and was criticised by the Cambodian government, in particular its suggestion that a majority of the judges should be international.  

The Zacklin mission and further discussions 

A mission led by the Assistant Secretary-General for Legal Affairs Ralph Zacklin visited Phnom Penh 25-31 August. A working group chaired by Senior Minister Sok An had been appointed by the government to meet with the UN legal experts. It handed over a draft for the enabling law. The UN delegation responded later during the visit by handing over another draft; there were major differences between the two.  

They differed on the very nature of the competent jurisdiction and whether it would be part of the existing court system (Cambodian draft) or a special tribunal established especially for the prosecution of those most responsible for the most serious human rights violations during the Khmer Rouge regime (UN draft). The Cambodian draft suggested that the Supreme Council of Magistracy appoint all judges and prosecutors; a minority of them would be foreigners and nominated by the Secretary-General. The UN draft proposed that all judges and the prosecutor be appointed by the Secretary-General.  

The Cambodian draft reflected the existing system with a Municipal Court (Phnom Penh), the Court of Appeals and the Supreme Court. Under the UN draft the tribunal was composed of two chambers, a Trial and an Appeals Chamber plus a Prosecutor and a Registry.  

The UN delegation summarised its main message in these words:  

"If the trial of the Khmer Rouge leaders is to meet international standards of justice, fairness and due process of law, and gain the support and legitimacy of the international community, it is vital that the international component of the tribunal be substantial and that it be seen to be effective on the international as well as the national plane. This cannot be achieved by merely adding a number of foreign judges to the composition of the existing court system. Only a special, sui-generis tribunal, separate from the existing court system, in which Cambodians and non-Cambodians would serve as judges, prosecutors and registry staff accomplish this."

The discussions ended with a pledge from the Cambodian side to review its draft in light of the UN comments. The UN team understood that the revised draft would be delivered before or during the Prime Minister's visit in New York in September.  

At his meeting with the Secretary-General on 16 September, Hun Sen presented an aide-mémoire which listed three options for UN participation. One was that the UN provide legal experts to collaborate with Cambodian lawyers and lawyers from other countries to help draft the necessary legislation and also provide judges and prosecutors to take part in the trial process at the existing Cambodian court. The second option was to provide legal experts who would not take direct part in the trial process and the third was to terminate the involvement at this stage. 

These three options were also discussed in a subsequent meeting in New York between Hans Corell and Ralph Zacklin of the Office for Legal Affairs and Senior Minister Sok An. The UN officials, naturally, did not pick one of the options in the midst of the ongoing discussion on the draft law proposal. The assumption now was that "option 1" should be tried; if that did not work out, the UN would have to end its involvement ("option 3"). The UN Secretariat was waiting for a response from the government on the draft which the Zacklin delegation had left behind in Phnom Penh. Sok An said the draft would be sent to the UN within one or two weeks.  

While in New York the Cambodian delegation also met leading representatives of the US State Department after which there seemed to be more understanding between the two governments on this particular issue.