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JUSTICE FOR THE KILLING FIELDS:
RE-NEGOTIATING THE KHMER ROUGE GENOCIDE COURT FOR CAMBODIA

Hans Corell
UN Under-Secretary-General for Legal Affairs
The Legal Counsel for the United Nations
JURIST Special Guest Columnist

The story of Cambodia痴 徒illing fields is well known. Over four years in 1975-1979, the Khmer Rouge murdered or caused the death of nearly 1.7 million people, about 20 per cent of Cambodia痴 population. For the next two decades, the task of bringing those responsible to justice was largely ignored. It is true that, over the course of the Twentieth Century, States put in place a comprehensive set of international legal instruments designed to prevent such atrocities. But the will to enforce those laws was lacking. Serious violations of international humanitarian law went unpunished. The atrocities of the Khmer Rouge were no exception.

In a process that is now well known, all that began to change in 1993, when the Security Council established an international tribunal for the former Yugoslavia. In 1997, the growing international movement to end impunity reached the crimes of the Khmer Rouge. On June 21st of that year, Cambodia asked the United Nations for help in bringing to justice those responsible for those crimes. In response, the General Assembly asked the Secretary-General to appoint a team of independent experts to explore the options. In March 1999, those experts reported, recommending the establishment of an international tribunal, like the existing International Tribunals for the former Yugoslavia and for Rwanda. That option was not acceptable to the Cambodian Government.

In June 1999, Cambodian Prime Minister Hun Sen wrote again to the United Nations, this time asking the UN to provide experts to help Cambodia draft legislation that would provide for a special national Cambodian court to try Khmer Rouge leaders - a court that would be composed, in part, of international judges and prosecutors. So began a process of negotiations between the Secretary-General of the United Nations and the Government of Cambodia. What would such a court have to be like, if the United Nations were to provide assistance, in terms of money, people and equipment? A draft agreement was developed and talks went on for two-and-a-half years.

In February 2002, the Secretary-General decided that he was no longer in a position to continue negotiating. To do so, he believed he needed a mandate either from the Security Council or the General Assembly. This past December, the General Assembly decided to give him such a mandate - he was asked to resume negotiations to conclude an agreement between the United Nations and Cambodia on the establishment of 摘xtraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Those negotiations have now been resumed. The Secretary-General will be reporting to the General Assembly on how they progressed later this month.

In its resolution, the General Assembly has laid down a number of conditions that any agreement with Cambodia would have to meet. Central among these is that an agreement would have to ensure that prosecutions and trials before the future court would comply with established international standards. This refers both to international standards of justice, fairness and due process of law and, more fundamentally still, to international standards regarding the independence and impartiality of the judiciary, the effectiveness, impartiality and fairness of prosecutors and the integrity and credibility of the legal process.

How could the Secretary-General ensure that any agreement that he might negotiate would meet this condition? There were two factors he had to take into account. The first was the situation of human rights in Cambodia. On the very same day that it decided to ask for the resumption of negotiations on a Khmer Rouge court, the General Assembly adopted a resolution in which it voiced concern about continued problems related to the rule of law and the functioning of the judiciary in Cambodia. In particular, the Assembly noted that the Cambodian judiciary remains highly prone to corruption. More worryingly still, it noted the existence of systematic interference on the part of the Cambodian executive with the independence of the Cambodian judiciary. It was clear to the Secretary-General, then, that something would have to be done to protect investigations, prosecutions and trials at the future court against manipulation.

The second factor was the Secretary-General痴 own experience from his previous negotiations with the Government of Cambodia. In the course of those negotiations, the Cambodian Government had not demonstrated the active commitment to the project that would be essential when it came to implementing any agreement, establishing a future court, getting it up and running and making sure that it ran efficiently and expeditiously. Indeed, it was this shortage of commitment on the part of the Cambodian Government which had been the main reason why the Secretary-General had lost faith in the previous negotiations and had decided to end them.

It was quite clear, then, that, if he was to comply with the terms of his mandate from the General Assembly, the Secretary-General would have to re-examine the draft agreement that had been under discussion during the previous negotiations and, where necessary, propose adjustments in order to ensure the impartiality, independence and credibility of the process before the future court and simplify its structure and operation. The structure and organization of the court, as foreseen in the earlier draft, had been conceived on the assumption that the Government of Cambodia was committed to establishing the court and making it work. Once it had become evident that that commitment could not be taken for granted, it was clear that these features would have to be looked at again. As they stood, they simply provided too great a scope for delaying, hampering or frustrating investigations, prosecutions and trials.

The Secretary-General has accordingly advanced a number of proposals aimed at simplifying the structure of the future court and ensuring its credibility. So far, with one exception, the Government of Cambodia has resisted those proposals. However, the Secretary-General has made it clear that, as it stood, the draft agreement that had been under discussion during the previous negotiations failed to ensure the impartiality, independence and credibility of proceedings before the future court on which the General Assembly insisted in its resolution. That draft must therefore be changed.

It is important that I emphasize this fact, since there is considerable pressure from some quarters for an agreement. It is said that it is better that there be imperfect trials than that there be no trials at all.

Putting to one side the obvious point that this is a false dilemma - why would there have to be no trials? - I would make the following comments. The Secretary-General could hardly recommend an agreement to the General Assembly that does not ensure that investigations, prosecutions or trials before a future court fully comply with established international standards. It would not be consistent with the terms of the General Assembly痴 own resolution. It would also not be consistent with his responsibility under the Charter to promote respect for international human rights standards. And, finally, the people of Cambodia surely deserve a court that meets those standards.

Why should they be any different from their brothers and sisters in the former Yugoslavia, in Rwanda and in Sierra Leone? Why should they have to make do with second best?


Hans Corell is UN Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations. He travels to Phnom Penh this week to continue the UN's negotiations with the Cambodian Government.

March 11, 2003

GUEST COLUMNIST

JURIST Special Guest Columnist Hans Corell has been UN Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations since March 1994. In this capacity, Mr. Corell is head of the Office of Legal Affairs in the UN Secretariat.

Before joining the United Nations in 1994, Mr. Corell, a national of Sweden, was Ambassador and Under-Secretary for Legal and Consular Affairs in his country's Ministry of Foreign Affairs from 1984 to 1994.

Mr. Corell began his career in 1962 as a court clerk, later becoming a presiding judge in petty criminal cases and then an Assistant Judge in a district court, before entering the Ministry of Justice in 1972.

Mr. Corell holds board memberships in several Swedish legal societies and is the author of many publications, including "The European Convention on Human Rights: Swedish Experiences Thoughts for the Future", which appeared in Studies in International Law, "Legal Advisers Meet at United Nations Headquarters", and "Third Legal Advisers Meeting at United Nations Headquarters in New York", both published in the American Journal of International Law.

Mr. Corell is a graduate in law of the University of Uppsala. He holds an honorary Doctor of laws degree at the University of Stockholm.