CHAPTER 6 DESIGNING JUSTICE FOR ’S

Craig Etcheson*

A. INTRODUCTION This chapter examines some practical issues involved in the problem of accountability for Cambodia’s Khmer Rouge. The leadership of the Communist Party of Kampuchea (CPK), popularly known as the Khmer Rouge, has long been accused of alleged mass atrocities carried out during the “Democratic Kam- puchea” regime between 1975 and 1979. I will consider several areas of con- tention in connection with proposals to bring these individuals to justice and will try to draw some of the central technical issues involved with the prospect of a tribunal that might pass judgment on these accusations.

The issues include the source of authority under which a tribunal might be convened, the optimal venue for a tribunal, the question of personal jurisdiction (or who and how many alleged perpetrators should be indicted), the question of temporal jurisdiction (which is to say, the tribunal should consider crimes com- mitted during exactly what time period), and perhaps even some questions con- cerning political aspects of this entire matter. As will become apparent, each of these issues is composed of many subsidiary or related issues, and all of them are intertwined. In the final analysis, most of the problems are intensely political.

In February 2006, the Coordinator of UN Assistance to the , Michelle Lee, moved her senior staff from New York to . Lee, previously chief of administrative services at the International Criminal Tribunal for Rwanda, also serves as the Deputy Administrator of Cambodia’s Extraordinary Chambers. She and her Cambodian counterpart, Extraordinary Chambers Administrator Sean Visoth, proceeded to prepare the physical appara- tus and to assemble the staff of the court. These developments marked the formal launch of the Khmer Rouge Tribunal.

* The author would like to thank Ambassador David Scheffer and the members of the Cambodia Policy Study Group at the Johns Hopkins University School of Advanced Inter- national Study for comments on an earlier draft of this chapter.

191 192 • International Humanitarian Law: Prospects

The nomination period for the international judges, the co-prosecutor, and the co-investigating magistrate closed at the end of August 2005, and interviews of short-listed candidates were conducted in early December. In March 2006, as this volume was going to press, the United Nations provided Cambodia with a list of two nominees for co-prosecutor, one for co-investigating magistrate, and seven for the five judge positions in the trial and appeals chambers. The govern- ment is to select and appoint the key international officials of the tribunal from these lists. Cambodian sources suggest that the government has already deter- mined its own slate of tribunal officers. Once the Cambodian and international co-prosecutors have been formally appointed by Royal Decree, we can anticipate approximately one year of investigations, followed by indictments. At that point, the Cambodian people should finally begin to see at least a modicum of the jus- tice that they have long been denied.

These judicial proceedings will be conditioned, however, by many difficult political decisions made along the way, design decisions that we shall now dis- cuss in some detail.

B. THE UN GROUP OF EXPERTS A suitable point of departure for a discussion of Khmer Rouge accountabil- ity would be a report delivered to UN Secretary-General Kofi Annan on February 18, 1999.1 Some 20 months earlier, on June 21, 1997, the Co-Prime Ministers of Cambodia, First Prime Minister Prince Norodom Ranariddh and Second Prime Minister , dispatched a letter to the UN Secretary-General requesting international assistance in the matter of bringing the Khmer Rouge to justice.2 Due in part to the very deliberate nature of UN processes and in part to political instability in Cambodia, the dispatch of a team of UN experts to Cambodia to prepare recommendations pursuant to the letter of the Co-Prime Ministers was delayed more than a year. During this intervening period, the Khmer Rouge polit- ical and military organization collapsed, most of the Khmer Rouge leadership applied to the government for various forms of mercy, and the last hardline hold- out, Khmer Rouge military chief of staff General Ta Mok, was captured. Feeling thus emboldened by his own successes in dealing with the Khmer Rouge, Hun Sen (by now the sole Prime Minister) rejected the recommendations from the UN Group of Experts that the United Nations establish an ad hoc international tri- bunal drawing on the International Criminal Tribunals for the Former Yugoslavia

1 Ninian Stephen, Chairman, Rajsoomer Lallah & Steven R. Ratner, Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135 (Feb. 18, 1999), annexed to Identical Letters Dated 15 March 1999 for the Secretary-General to the President of the Security Council, U.N. Doc. A/53/850-S/1999/231 (1999). 2 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. The Secretary-General discusses this letter in Report of the Secretary- General on the Situation of Human Rights in Cambodia, U.N. Doc. A/52/489 (1997), at 22.