Mixed Courts: The Cambodian Case

The UN Involvement and the Prospects for a Fair Trial in Cambodia

Ellen Stensrud

Thesis for the degree Cand. Polit.

University of Oslo Department of Political Science December 2004

The thesis is written in cooperation with the Peace Research Institute, Oslo (PRIO)

Summary

The topic of this thesis is the forthcoming trial against the Khmer Rouge in Cambodia. In March 2003 the UN and the Cambodian government reached an agreement on the establishment of a “mixed” court to try the former Khmer Rouge leaders. The agreement was a result of lengthy negotiations, where the balance between the international and domestic components of the court was at the core of the dispute. The UN has argued that the Cambodian judiciary is unable to handle a trial of this magnitude, while the Cambodian government has claimed its right as a sovereign country to conduct trials domestically.

With the dilemma of national versus international mechanisms of justice as a background, this thesis asks how the UN involvement has affected the prospects for a fair trial in Cambodia. This question is addressed by first, discussing whether UN involvement is a precondition for a fair trial, second, by asking if the UN prejudiced international standards of justice in its agreement with Cambodia, third, by discussing why the UN accepted a less than perfect agreement, and finally by addressing the outcome of the negotiations theoretically.

While it is evident that UN involvement is indeed a precondition for a fair trial in Cambodia, it is less clear whether the UN involvement will guarantee for international standards of justice. The agreement provides for a Cambodian majority in the court, which leads to the possibility of political influence over the trial. This thesis has found that the UN accepted this agreement basically because of pressure from influential countries such as the USA, Japan and France. Finally, this thesis has applied a theory positing an empirical relation between international norms and domestic change, and argued that the agreement on the Khmer Rouge trial can be meaningfully interpreted as a step in a process towards improved human rights policies.

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Foreword

My interest in the field of genocide studies was awakened by a lecture series held at the Department of Political Science at the University of Oslo in the fall 2002, funded by the Kavli Foundation. 20 th century genocides were lectured on by some of the world’s leading experts in the field. I appreciate the unique possibility this gave to students of political science to gain knowledge of this extremely important and sadly relevant topic. The Cambodian genocide was addressed by Professor Ben Kiernan, who also kindly accepted me for a discussion on the topic of my thesis in New Haven this fall.

This project could not have been realized without the support and guidance from my two supervisors Bernt Hagtvet and Stein Tønnesson. Funding from the institution Fritt Ord (Freedom of Expression Foundation) and Department of Political Science at the University of Oslo made my study trips possible. The Peace Research Institute, Oslo (PRIO) has offered me a scholarship and a stimulating and welcoming working environment.

I wish to express my sincere thanks to my interviewees, who have all kindly shared their time and knowledge with me.

Finally, I appreciate the financial support from my family during this process. Thanks to Lars for cover design.

Ellen Stensrud

Oslo, December 2004.

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Contents

SUMMARY...... 1

FOREWORD...... 2

CONTENTS...... 3

1. INTRODUCTION ...... 7

1.1 THE DILEMMA : NATIONAL OR INTERNATIONAL JUSTICE ?...... 9

1.2 THE THESIS : FOCUS AND RESEARCH QUESTIONS ...... 12

1.2.1 The purpose of the thesis ...... 14

1.2.2 Legalism in international relations ...... 14

1.3 ANALYTICAL FRAMEWORK ...... 15

1.3.1 Conditions for a fair trial ...... 15

1.3.2 International norms and domestic change: A theoretical approach...... 16

1.4 METHODOLOGICAL CHALLENGES ...... 20

1.4.1 Transitional justice...... 20

1.4.2 Sources and data material ...... 21

1.4.3 Summary ...... 25

1.5 THE STRUCTURE OF THE THESIS ...... 25

2. BACKGROUND...... 28

2.1 THE CAMBODIAN GENOCIDE ...... 28

2.1.1 1969-1975: Prelude to the genocide...... 29

2.1.2 1975-1979: The crimes committed...... 29

2.1.3 The victims...... 33

2.1.4 The perpetrators ...... 34 3

2.2 JUSTICE AND DENIAL : 1979-1997...... 38

2.3 TRANSITIONAL JUSTICE ...... 41

2.3.1 International law – the Nuremberg legacy ...... 42

2.3.2 Prosecution and punishment in international law...... 45

2.3.3 Mechanisms of transitional justice ...... 47

2.3.4 National, international and mixed courts...... 48

2.3.5 Mixed courts: The best of both worlds? ...... 49

2.4 THE MIXED COURT IN CAMBODIA – A SHORT PRESENTATION...... 53

3. IS UN INVOLVEMENT A PRECONDITION FOR A FAIR TRIAL?...... 55

3.1 THE TRANSITION AND ITS EFFECT ON THE POLITICS OF ACCOUNTABILITY ...... 55

3.2 THE TRIAL AS A MEANS IN A POLITICAL POWER PLAY ...... 60

3.3 THE WEAKNESSES OF THE CAMBODIAN LEGAL SYSTEM ...... 71

3.4 WOULD CAMBODIAN JUSTICE BE VICTORS ’ JUSTICE ?...... 75

3.5 THE REQUEST FOR A TRIAL IN A THEORETICAL PERSPECTIVE ...... 77

3.6 SUMMARY ...... 79

4. DID THE UN PREJUDICE INTERNATIONAL STANDARDS OF JUSTICE? ...... 81

4.1 THE UN EXPERTS ’ RECOMMENDATION : AN INTERNATIONAL TRIBUNAL ...... 81

4.2 THE NEGOTIATIONS ...... 83

4.3 THE AGREEMENT ...... 87

4.3.1 The status of the Agreement ...... 87

4.3.2 International standards of justice in the Agreement...... 88

4.3.3 The dispute over judges: The super majority solution ...... 89

4.3.4 UN’s right to withdraw: a safety valve?...... 93

4.4 INTERNATIONAL STANDARDS VERSUS LOCAL OWNERSHIP ...... 95

4

4.4.1 The sovereignty argument – is it valid? ...... 98

4.5 SUMMARY ...... 100

5. EXPLAINING THE NEGOTIATING RESULT ...... 102

5.1 THE UN CONCESSIONS AND SUPERPOWER PRESSURE ...... 102

5.2 INTERNATIONAL NORMS AND DOMESTIC CHANGE ? ...... 106

5.3 THE DIFFERENT EXPLANATIONS AND THE PROSPECTS FOR A FAIR TRIAL ...... 109

6. CONCLUSIONS AND COMPARATIVE PERSPECTIVES ...... 111

6.1 THE RESEARCH QUESTIONS ...... 111

6.2 THEORETICAL APPROACHES...... 116

6.3 A COMPARATIVE PERSPECTIVE ...... 121

6.4 WHY PROSECUTE ?...... 127

REFERENCES...... 130

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1. Introduction

Some 25 years after their rule in Cambodia, the Khmer Rouge leaders may finally be held accountable for their misdeeds. In March 2003 the UN and Cambodia reached agreement on the establishment of a trial of the former Khmer Rouge leaders. The trial will address those leaders most responsible for the atrocities committed during the period of Democratic Kampuchea (DK 1), when about one quarter of the Cambodian population died – death tolls unparalleled by any other genocide in history. 2 The international community turned a blind eye to the issue of sanctions against Pol Pot and his men. In Cambodia, trials against the Khmer Rouge leadership were held in 1979 and 1997, but these have not been recognized as anything but “show trials”, and provided no sense of justice for the crimes committed. The attitude towards the legacy of the Khmer Rouge has now changed. In 1997 the Cambodian government requested assistance from the UN for a trial against the former Khmer Rouge leaders. The UN Secretary General Kofi Annan sent a group of experts to the country to look into the potential for a trial within the Cambodian judiciary. They recommended an ad hoc international tribunal, similar to the ones for Yugoslavia and Rwanda. The Cambodian Prime Minister Hun Sen, on the other hand, insisted that the trials should be held in Cambodia, and stated that Cambodia would carry out the trials, with or without UN assistance. After lengthy and difficult negotiations, an agreement was finally reached in March 2003 on the establishment of a special court within the Cambodian judicial system with significant UN participation. This court will be mixed in character, combining international and Cambodian judges and personnel, applying both international and Cambodian law. This thesis will address the question of how the UN involvement has affected the prospects for a fair trial against the Khmer Rouge in Cambodia.

1 Democratic Kampuchea (DK) refers to the period of Khmer Rouge rule from 17 April 1975 to 6 January 1979, when the Vietnamese invasion threw Pol Pot out of power in Phnom Penh. The new Vietnamese government was not recognized internationally, and Khmer Rouge continued to represent Cambodia in the UN, and it also continued to exist as a military force within Cambodia. In 1982 the Khmer Rouge representation in the UN was replaced by a coalition in which the Khmer Rouge was the largest party. The Khmer Rouge represented Cambodia internationally until 1992. 2 Rummel, Rudolph J. 1994. Death by Government . New Brunswick, USA: Transaction Publishers, pp. 4, 7. 7

The effort in Cambodia to address the past through legal remedies is one of the most recent examples of transitional justice . Jon Elster defines transitional justice as “the process of trials, purges and reparations that take place after the transition from one political regime to another”. 3 Most cases of transitional justice take place in transitions to democracy, 4 and the use of legal redress in a transitional phase is a phenomenon as old as democracy itself. In Athens, legal action against the oligarchs was taken in 411 and 403 B.C. 5 After these instances, however, no significant measures of transitional justice occurred until the end of the Second World War. 6 “The modern history of justice after transitions to democracy begins essentially with the defeat of Germany, Italy and Japan in 1945.” 7

Since the days of the Nuremberg war crimes tribunal, the international law in this field has developed. The protection of human rights is increasingly being followed by a demand for punishment of the most heinous abuses. Law is increasingly being called upon during transitions, after violent conflicts and sometimes also during conflicts. 8 The demand for truth or justice in a post-conflict society can be met through national courts, national truth commissions or both, or international or mixed tribunals. In the book The Third Wave. Democratization in the Late Twentieth Century , Samuel P. Huntington argues that the decisions a new regime makes regarding sanctions against leaders of the authoritarian system have serious implications for the new political order. “Beneath these issues often lay fundamental questions of national identity and political legitimacy.”9 The way a new regime handles a past characterized by massive human rights abuses, can determine the

3 Elster, Jon 2004. Closing the Books . Transitional Justice in Historical Perspective . Cambridge: Cambridge University Press, p. 1. 4 David A. Crocker points to the fact that many efforts of transitional justice are made in nondemocratic states, states that aspire to make a democratic transition, or mature democracies. The study of the phenomenon transitional justice should not be limited to “new democracies”, as many of the same challenges may face nondemocratic states and mature democracies. See Crocker, David A. 1999. “Reckoning with Past Wrongs: A Normative Framework”, Ethics and International Affairs 13: 43-64, p. 44. In this context, Cambodia is perhaps best seen as something between a regime that aspire to make a democratic transition, and a new democracy. 5 Elster 2004: 3. 6 Elster 2004: 48. 7 Elster 2004: 54. 8 Balint, Jennifer L. 1996. “The Place of Law in Addressing Internal Regime Conflicts”, Law and Contemporary Problems 59 (4): 103-126, p. 104. 9 Huntington, Samuel P. 1991. The Third Wave. Democratization in the Late Twentieth Century . Norman, Okla.: University of Oklahoma Press, p. 211. 8

legitimacy of the new order. Addressing a violent past can be a condition for a democratic future. 10

Examples of judicial mechanisms after transitions are the trials in Greece and Portugal after the fall of the dictatorships, the Argentine trials against former military junta commanders, trials in Eastern Europe after the collapse of the Soviet block, and the establishment in the 1990s of the ac hoc tribunals for the former Yugoslavia and Rwanda. The International Criminal Court (ICC) is yet another step in the direction of linking human rights abuses to individual criminal responsibility. These are all examples of either purely national or international mechanisms. The recent years have also seen the development of a third kind of mechanism: “mixed” or “hybrid” courts. Such courts have been established in East Timor and Sierra Leone. As the principle of individual criminal responsibility develops in international law, the question arises as to which kind of mechanism should be applied: national, international or some kind of combination of the two. The debate over this question has become more salient over the last decade, especially regarding the efforts of justice in the former Yugoslavia and Rwanda. In Cambodia, a conflict evolved between the UN and the Cambodian government on the balance between the national and international components in the planned Khmer Rouge trial.

1.1 The dilemma: national or international justice? One of the most pressing dilemmas that arise when addressing past human rights violations is that between the national and international means of justice: Should prosecutions take place nationally? Should international support be sought? Or should an international institution take hand of the trial?

The gravity of the crimes addressed by these trials – genocide, war crimes and crimes against humanity – underscores the importance of a fair trial. Its ultimate aim must always be to reestablish respect for the law, which has been undermined by human

10 Skaar, Elin and Bård-Anders Andreassen 1998. ”Oppgjør med alvorlige menneskerettighetsovergrep ved overgang til demokrati”, in Bård-Anders Andreassen and Elin Skaar (eds.), Forsoning eller rettferdighet? Om beskyttelse av 9

rights abuses. Only through a trial that adheres to high principles of justice can this aim be fulfilled. International courts may imply significant benefits in this regard. Its expertise and resources are likely to be adequate. An international tribunal is more likely than a national to be independent and impartial regarding local conflict. An international tribunal is more fitted to contribute to the development of international law. Also, one can argue that some instances of state crime are so heinous that they are of world-wide concern, a notion embedded in the term “crimes against humanity”. The international community is obliged to react, and an international tribunal is the best-suited arena for justice. 11 However, despite the establishment of the ad hoc tribunals for Rwanda and the former Yugoslavia and the International Criminal Court, and the attention these have gained, national courts are far more common, 12 and by many commentators the preferred policy option.

In some cases, as with the Yugoslavia and Rwanda tribunals, a local solution was simply not an option, due to concerns of security, resources and infrastructure. 13 The future will probably see new cases where an international mechanism is required. However, there are good reasons for being aware of the shortcomings of international tribunals. “It is axiomatic that the weaker the connection between the international operation and the local population, the easier it will be for its work to be ignored as an alien effort irrelevant to concerns in the country.”14 There are several benefits to a national solution, due to the importance of local “ownership”. 15 A domestic trial can strengthen the legitimacy of a new and fragile government, it can contribute to the rebuilding of the judiciary, and the proximity to the victims and society gives a national trial a stronger symbolic force. A domestic trial therefore has a stronger potential for establishing a collective memory and contributing to the reconciliation process. 16 For these reasons, one should always consider the possibilities for a

menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler . Oslo: Cappelen Akademisk Forlag, p. 16. 11 Kritz, Neil J., 1996. ”Coming to terms with atrocities: A review of accountability mechanisms for mass violations of human rights”, Law and Contemporary Problems 59 (4): 127-152, pp. 129, 151. 12 Skaar and Andreassen 1998: 26. 13 Kritz 1996: 130-31. 14 Kritz 1996: 131. 15 Kritz 1996: 149. 16 Kritz 1996: 132-33; Marks, Stephen 1999. “Elusive Justice for the Victims of the Khmer Rouge”, Journal of International Affairs 52 (2): 691-718, p. 698. 10

national solution. “The automatic preference for international responses should be resisted.”17

This view is supported by a principle in international law, namely the principle of complementarity . International tribunals, or a permanent international court, should only engage in cases when the national judiciary is unwilling or unable to hold a fair trial. This is confirmed in the statutes of the International Criminal Court. 18 When the Rwanda tribunal was established, its aim was to “contribute to the process of national reconciliation and to the restoration and maintenance of peace”.19 Thus, the population of the society where the atrocities have taken place is recognized as the primary audience of such trials. 20 Furthermore, international tribunals, or the International Criminal Court, would never have the capacity to try more than a handful of perpetrators, and for crimes committed before the establishment of the International Criminal Court, it would be impossible to create new ad hoc tribunals for every human rights trial.

Weak judiciaries, however, will inevitably affect national trials in societies in a transitional phase. Independent, fair and well-functioning national courts are usually absent in a period of genocide, war crimes or crimes against humanity, because such crimes are committed in societies characterized by chaos and collapse, or because state institutions like the judiciary take part in the abuses. In most cases, a trial within the national judiciary is not likely until a regime change has taken place. After a regime change, the new leadership has to face the question of how to deal with the crimes of the former regime. But even after the transition, instability will probably characterize the society and its institutions. Trials, therefore, will have to be conducted in societies where the new political order is not fully consolidated, where

17 Kritz 1996: 145. 18 The Preamble to the Rome Statute of the International Criminal Court states that the ICC “shall be complementary to national criminal jurisdictions”, and according to article 17.1(a) a case is inadmissible when “being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. It is unclear, however, how this principle will be implemented in practice. See Alvarez, José E. 1999. “Crimes of States/Crimes of Hate: Lessons from Rwanda”, Yale Journal of International Law 24: 365-483, pp. 477-79. 19 The United Nations 1994. Security Council Resolution 955 (S/RES/955), Preamble. 20 Kritz 1996: 131. 11

the judiciary is still under significant political influence, or where the former rulers may pose some kind of threat to the new and fragile democracy. 21

In sum, the long term advantages of such trials largely depend on two factors: proximity to the national territories, and adherence to high standards of justice. The question that must be applied to each case is if and how these two considerations can be fulfilled at the same time. Is it possible to hold a trial in the national territory without sacrificing judicial standards? Do the requirements of fairness demand an international solution? In a mixed court, how should the national and international components be balanced? In Cambodia, a purely international mechanism was not an option, since the national leadership strongly opposed it, and it would probably be vetoed by China in the Security Council. The trial therefore had to take place in Cambodia, with Cambodians in a substantial number of positions. In light of the poor rule of law-situation in Cambodia, the questions then must be asked: Can the trial in Cambodia be fair? Is the international participation needed for a fair trial? Will the international participation ensure high standards of justice?

1.2 The thesis: Focus and research questions As a starting point for discussion I ask the following question: How has the UN involvement affected the prospects for a fair trial in Cambodia? As the trial has not taken place yet, I can only address the prospects for a fair trial. This question will serve as the starting point, and to illuminate the issue I will discuss two main research questions:

1) Is UN involvement a precondition for a fair trial in Cambodia?

2) Did the UN prejudice international standards of justice in its 2003 agreement with Cambodia?

21 Kritz 1996: 132. 12

Neil J. Kritz writes that “[f]or every country emerging from the horror of genocide, war crimes, crimes against humanity, or other massive abuses of human rights, achieving justice requires a determination of the proper balance between domestic and international treatment of the problem”. 22 The first question relates to this need to decide whether the international society has to give assistance to make sure that a trial adheres to acceptable standards. The question could be turned the other way round: Could a fair trial have been conducted without UN participation?

The UN and Cambodia reached an agreement regarding the trial in March 2003. However, several points were still disputed, and human rights organizations expressed concerns that the agreement did not secure international judicial standards. The second question relates directly to the need for a balance between the domestic and international components that does not sacrifice basic judicial standards while meeting the need for local ownership. The UN made several concessions. Did it compromise on international standards of justice? As the quality of the agreement between Cambodia and the UN has been questioned, it is imperative to address this issue in a discussion of the prospects for a fair trial.

In addition to the two main research questions the thesis will briefly discuss two other questions:

3) Why did the UN accept a less than perfect agreement?

4) How can the agreement be understood theoretically?

The two latter research questions are not major points in the thesis, but will be addressed since the answers may provide important clues to the prospects for a fair trial.

22 Kritz 1996: 144-45. 13

1.2.1 The purpose of the thesis The broader thematic framework of the thesis is the research field of transitional justice, and particularly the debate on national versus international mechanisms of justice. The findings from Cambodia can contribute to an understanding of some issues that arise when addressing past abuses with judicial means. The handling of the Khmer Rouge legacy in Cambodia can be seen as a case of transitional justice, and the forthcoming trial can be seen as an example of mixed courts. How the dilemma national versus international justice has been met in Cambodia can lend insight to other cases of transitional justice. The aim is not theoretical generalization. I will, however, discuss some of the findings in Cambodia in a theoretical perspective. For theoretical generalization, I believe further investigation into other cases is required. Of particular interest could be the trials in East Timor and Sierra Leone. Future trials in Iraq could be another interesting case to investigate.

1.2.2 Legalism in international relations In the book Stay the Hand of Vengeance. The Politics of War Crimes Tribunals , Gary Jonathan Bass defines legalism as “a fixation on process, a sense that international trials must be conducted roughly according to well-established domestic practice – not just rule-following, but rule-following when it comes to war criminals”.23 In this sense, the standpoint of this thesis is legalist, and the analysis thereby normative. When asking the question Can the trial in Cambodia be fair? I acknowledge the importance of a trial that follows certain procedures, and I believe such a trial is preferable to a politicized trial, or a trial that is solely used as a means of exercising power. I do not discuss if a politicized trial could serve justifiable ends, or if, in a given situation, a politically controlled trial is preferable.

23 Bass, Gary Jonathan 2000. Stay the Hand of Vengeance. The Politics of War Crimes Tribunals . Princeton: Princeton University Press, p. 20. 14

1.3 Analytical framework

1.3.1 Conditions for a fair trial In The Third Wave , Samuel P. Huntington points to a central aspect of any transition: The balance of power between the outgoing and the new regime. 24 The argument is that when the outgoing regime takes part in the transition by negotiation, 25 or continues to hold some power, e.g. in the military, a trial is unlikely, or even impossible. If, on the other hand, the transition came about after a military defeat, the new regime will be able to hold a trial, as leaders of the old regime do not pose a threat to the new one. Chapter 3.1 will describe the transition in Cambodia and analyze its effect on the politics of accountability.

Gary Jonathan Bass argues that only liberal states that adhere to legalist norms in their domestic policies will conduct bona fide war crimes trials. Moreover, he argues that the justice in these tribunals will always be decided by the victors. 26 Therefore, it is important to study the norms of the state executing the justice. Chapter 3.4 will apply Bass’ arguments to the Cambodian case.

In his article “ Coming to terms with atrocities: A review of accountability mechanisms for mass violations of human rights”, Neil J. Kritz draws together some main insights from the research field. His starting point is the need to determine when a trial can take place locally, when international assistance is required, and when the international society should take care of the trial. He argues that certain conditions must be in place before national trials can take place, such as sufficient and well- trained personnel, sufficient logistics and satisfactory security and infrastructure. These factors are obvious prerequisites for a trial in the domestic context, but may be absent in a society emerging from armed conflict or collapse. In addition, as Kritz underlines, to ensure long-term benefits for the affected society, adherence to universal norms regarding fair trials is essential. He argues that the judiciary must be

24 Huntington 1991: 215 25 Transitions that come about as result of negotiations are often referred to as “pacted”. 26 Bass 2002: 16, 35. 15

politically independent and follow international standards. 27 But what specifically does the requirement of fairness imply? What is understood by “international standards of justice”?

There is no standard definition of a fair trial or international standards of justice. But the UN International Covenant on Civil and Political Rights is ratified globally, and is binding international law. Art. 14 of the Covenant requires a tribunal to be “competent, independent and impartial.” Other requirements are the presumption of innocence, witness protection, public hearings and judgments, a proper defense, trial without undue delay and the right to appeal. In the Report of the Group of Experts in which the prospects for a trial in Cambodia is evaluated, the UN experts expressed several concerns regarding a Cambodian trial. The most serious were, first, that the Cambodian judiciary is corrupt and under political influence, and there is no respect for due process. Second, the UN maintained that Cambodia lacks resources and expertise to handle such a trial. 28 The aspects that the UN experts pointed to resemble the requirements of the Covenant of competence , independence and impartiality . The UN experts referred to the Covenant when evaluating the judicial system in Cambodia: “In sum, Cambodia's system falls far short of international standards of criminal justice established in the International Covenant on Civil and Political Rights and other instruments”. 29 Therefore, when I discuss the conditions for a fair trial, I will focus on these three factors as outlined in the Covenant.

The notion of “fair” may have two sides. First, fair treatment of individuals, or what is often referred to as due process. Second, it may imply equal treatment of defendants. Both notions are relevant in the discussion of a trial in Cambodia.

1.3.2 International norms and domestic change: A theoretical approach In transitions, the best is if the domestic judiciary can conduct a trial in an independent and competent manner on its own, but very often this is not possible.

27 Kritz 1996. 28 Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/153 art. 126, 133, 134. Hereafter referred to as “ Report ”. 16

Therefore, in many cases international actors should participate to some degree, to ensure the credibility of the process. 30 Where a mixed trial is to be held within the domestic court system, with significant domestic participation as in Cambodia, a precondition for a fair trial is that the international involvement actually affects the norms and operating procedures of an otherwise substandard legal system. In Cambodia, the international involvement should, firstly, affect the government’s position in the negotiating process. Secondly, the international involvement should affect the dynamics of the legal process once it gets started.

A particularly relevant theoretical approach in this regard is presented by Thomas Risse et al. in the study The Power of Human Rights. International Norms and Domestic Change (hereafter Risse).31 Risse develops a theory of how international norms can affect domestic human rights policies. The book “explores the conditions under which networks of domestic and transnational actors are able to change these domestic structures themselves”. 32 This theory explains how states may improve their human rights record due to argumentative pressure. A transnational human rights network of actors, like national and international non-governmental organizations, international human rights regimes and liberal Western states, may change the structures in a target state, by pressuring the target state “from above” and “from below”. 33 “[T]he diffusion of international norms in the human rights area crucially depends on the establishment and the sustainability of networks among domestic and transnational actors.”34 International norms can affect domestic human rights policies by a process of socialization, which includes at the first stage instrumental adaptation and bargaining, at the second stage argumentation, dialogue and persuasion and at the third and final stage institutionalization and habitualization. Norm-violating governments often react to international and domestic pressures by instrumental

29 Report art. 129, see also art. 78, 214. 30 Kritz 1996: 148. 31 The theoretical approach is presented in chapter one of the book: Risse, Thomas and Kathryn Sikkink 1999. “The socialization of international human rights norms into domestic practices: introduction”, in Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds.), The Power of Human Rights. International Norms and Domestic Change. Cambridge: Cambridge University Press. 32 Risse and Sikkink 1999: 4. 33 Risse and Sikkink 1999: 5. 34 Risse and Sikkink 1999: 5. 17

adaptation in early stages of the socialization process.35 Later the mode of interaction may change to real dialogue and persuasion. Risse develops a five phased “spiral model”, which is an operationalization of the socialization theory. According to this model, both improvement and backlash in the human rights situation may occur. 36

The first of the five phases in the process towards improved human rights practices is characterized by repression and activation of the transnational human rights network. The next phase is a phase of denial. The government of the “targeted” state both denies the validity of human rights norms (for example by pointing to the principle of state sovereignty) and the existence of human rights abuses. However, the fact that the target state finds it necessary to deny the claims made by the human rights network, shows that the state is already engaged in a debate about its human rights policy. This discourse is essential, and a core argument that Risse makes is that the nature of the discourse changes over time. In the phase of denial, the arguments the target state makes are instrumental or strategic, and the human rights policy has not yet improved.

Phase three may occur if the pressure from the network is sufficiently strong. In this phase, the target state finds it necessary to make tactical concessions to appease the pressure from the network, and to gain strategic benefits, e.g. foreign aid. If the pressure is sustained, the nature of the discourse in this phase may shift from strategic to normative. Alternatively, there might be a backlash. If the tactical concessions weaken the pressure from the network, the government may seize the opportunity to reinforce its rights-violating policies. The next phase is only reached if the pressure, especially that from the domestic opposition, is strong enough to push the state’s human rights policies into a prescriptive status. This phase may follow from either regime change or controlled liberalization. The regime now, in phase four, accepts the validity of the norms and incorporates them into its laws, although the norms may in practice still be violated. Continuous pressure “from above” and “from below” is needed if the state is to reach phase five: rule consistent behavior. At this stage, the

35 Risse and Sikkink 1999: 12. 18

norms are not only uncontested, they are also followed as a habit. A culture of respect for the human rights norms has evolved. At this stage the final level of the socialization process is reached; institutionalization and habitualization. 37

In the analysis of the Cambodian case, issues that will be addressed in light of Risse’s theory are:

- What can be assumed regarding Prime Minister Hun Sen’s motives for requesting a trial? Can the request for a trial be seen as a response to pressure? - How strong is the transnational human rights network regarding Cambodia? How has the network operated? Has the network influenced the Cambodian government, and can it be expected to do so in the future? - Has the Cambodian government been involved in a discussion of the relevant human rights norms? - At what stage can Cambodia be placed within the spiral model? Can the agreement between Cambodia and the UN be seen as a step in Risse’s process?

Traditionally, realism has been the main theoretical approach in the field of international relations. When describing politics, realism claims that self-interest and maximization of power are the main driving forces. Realists argue that interests are formed by power relations and material structures. Risse’s theory, on the other hand, is a theory of socialization, and the starting point is social constructivism. Interests are not given once and for all by the external structure. Interests are defined by identities and values, and these can change. To understand the actors’ interests, one has to take into account the social interaction in which the values of these actors are formed. Risse accepts the influence of power and material structures, but claims that these factors interact with ideals, norms and identities. 38 When I discuss the applicability of Risse’s theory in chapter 3.5, 5.2 and 6.2, the fruitfulness of a realist approach will also be addressed.

Theory is not the starting point for my analysis, and the thesis will not engage in a thorough debate on Risse’s theory of socialization. Rather, theory will be used to further develop the normative discussion. Moreover, I will draw on Risse’s theory to

36 Risse and Sikkink 1999: 5. 37 Risse and Sikkink 1999: 22-35. 38 Risse and Sikkink 1999: 8-9. 19

discuss the prospects for a fair trial, and I will comment on the relevance of the theoretical approaches I apply.

1.4 Methodological challenges In my study, the most challenging methodological issues can be summarized as follows: First, the lack of theory or any comprehensive analytical framework in the field of transitional justice, and the field’s place in between law and political science. Second, the Cambodian case is contemporary, and at the time of writing the court has not even been formed. Consequently the secondary literature is extremely limited, so a challenge has been to establish an overview of the empirical facts. Thus, as a third challenge, my source material must be critically evaluated, and the conclusions established in the thesis must be seen in light of some particular weaknesses in this material.

1.4.1 Transitional justice A thesis on the prospects for a fair trial in Cambodia falls within the research field of transitional justice. There is no coherent methodology in this field, and no theory has yet been developed. 39 Balint argues that when approaching the issue of transitional justice methodologically, some may apply traditional criminology. But, as Balint underlines, a crime committed on behalf of a state is different from other crimes, as it often involves the state apparatus, such as the bureaucracy, police or judiciary. Not only do such crimes differ from “ordinary” crime, the sanctions applied also differ from ordinary criminal redress. 40 Also, criminology does not address transitional justice, i.e. justice done by a regime that tries its own predecessor. In this light, traditional criminology evidently falls short as a strategy of approaching transitional justice. The history of transitional justice clearly shows that political constraints, both domestic and international, frame the possible means of retribution and accountability. The trials have strong political connotations, and the choice of

39 Balint 1996: 112. Jon Elster writes: “I have found the context-dependence of the phenomena to be an insuperable obstacle to generalizations”. Elster 2004: 77. 20

remedies is limited by political realities. 41 Clearly, the topic of the thesis must be addressed within the field of political science. However, some central legal issues will also be addressed.

Since there is no coherent theory I can rely on in this field, this thesis has built an analytical framework on previous research, principles set out in the International Covenant on Civil and Political Rights, and theoretical approaches that highlight different aspects of the process in Cambodia. Particular attention will be given to Risse’s theory on international norms and domestic change, because of its relevance to the question of international involvement in a domestic issue.

1.4.2 Sources and data material Sources utilized for the empirical analysis can be divided into two broad categories: interviews and documentary sources.

Interviews

I conducted a three-week field study in Phnom Penh in February 2004. This provided invaluable overview and insight into the process. The people I talked with are not in any way representative for the whole Cambodian population. They were all educated, English-speaking civil society actors, and some were foreigners.

I talked with people directly involved in the process leading up to the Khmer Rouge trial, or with some special knowledge of the field. My informants are actors in the process who hold different views. Out of the ten informants I interviewed in Phnom Penh, four represent NGOs. They are all actively engaged in the process leading up to the trial, mainly by advocating higher standards in the trial, but with varying views on how a trial should be conducted. Furthermore, one of my informants works as a legal advisor at the UN Office for the High Commissioner for Human Rights in Cambodia. I interviewed two advisors to the Government Task Force, the Cambodian

40 Balint 1996: 110. 41 Balint 1996: 108. 21

governmental body working with the trials. Another of my informants is a journalist in Phnom Penh Post, a Phnom Penh-based English language newspaper. I talked to a researcher at the Cambodia Development Resource Institute. This institute is not directly involved in any work with the trials, but I was advised to talk to him because of his own interest in the field. I also interviewed a former research colleague of his, who is now working as an advisor for the government and various NGOs. Except when the interviewees refused, I taped the interviews. A point that may be noted in this regard is the reasonable degree of freedom Cambodian organizations enjoy, and there is also a high degree of press freedom. This makes the various actors easily accessible, and no one seemed to have any reservations against discussing the topic.

The interviews were important as a source of background information, to get an overview and understand the complexity of the topic. However, interviews are not always a reliable source for establishing more detailed empirical facts, as their value totally depends on the informant’s ability and will to give accurate accounts of events. Therefore, documentary sources have been most important.

Documentary sources

The most important documentary sources I have consulted can be grouped in the following categories:

1. UN Report of the Group of Experts, other UN documents, and articles written by UN officers involved in the process. 2. Correspondence from the Cambodian government to the UN regarding the trial. 3. Documents from the Government of Cambodia covering the Khmer Rouge trial. 4. Legal documents, most importantly the agreement between the UN and Cambodia, and the Cambodian law establishing the court. 5. Documents from Cambodian NGOs and articles written by NGO representatives. 6. Reports on human rights in Cambodia, from the UN, Human Rights Watch, Amnesty International, and their comments on the agreement on a trial. 7. Newspaper articles. 8. Comments, debate and more thorough articles from newspapers, magazines and other publications. 22

Of these sources, the two latter categories have been used to establish empirical facts and trace central developments in Cambodian politics, and also in some instances to get the views of central actors, when these have submitted comments or interviews to newspapers or other publications. My source material in this regard is fairly broad, and derived from both international and Cambodian publications. The fifth and sixth categories of documents, human rights reports, are used to get an understanding of the rule of law situation in Cambodia, and also these organizations’ view of the weaknesses of the agreement between the UN and Cambodia. The first three types have been used to understand the various actors’ roles and perspectives in this process. The fourth category is important. Some of the legal documents represent the outcome of the negotiations between the UN and Cambodia, and therefore these documents will be central in the analysis.

The most important lacuna in the material is the correspondence from the UN to Cambodia. The Cambodian government chose to publish its correspondence to the UN after the UN pulled out of the negotiations in 2002. The UN negotiating team for its part has kept its documents confidential. However, when reading the responses from the Cambodian government it is possible to understand what the preceding UN letters were about. Moreover, there are press conference transcripts from the UN, and articles written by UN actors involved in the process. Also, UN representatives, including Kofi Annan, have commented on the negotiations and the agreement between the UN and Cambodia, so it has been possible to establish the viewpoint of the UN in this process.

It has been more difficult to establish exactly the weight of the motives behind the Cambodian request for a trial. By taking into account various events and announcements surrounding the trial, it is possible to establish as probable that some particular motives were at play, but it is hard to assess the weight behind each motive. The uncertainty regarding this point should be kept in mind.

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Some principles in the utilization of sources

When establishing empirical facts, one must keep certain challenges in mind. One is the possibility of bias. One must always consider textual sources in light of the sender and the intended recipient, and the senders’ possible motives. Moreover, the independence of the sources must be evaluated. If one source builds on another, the fact that there are two sources does not strengthen the validity of a factual statement.

A textual source can be utilized in different ways. First, it can be used as an account of events. The source tells a story about something that has happened. Second, a source can be utilized as a fact of its own, its origin, content and effects. 42 For example, when the UN experts write about the politics and history concerning the Khmer Rouge trial, this source can be utilized as an account of Cambodian political events. A judgement must be made of its validity. At the same time, this source can be used as information about the UN experts’ views, attitudes and actions. Then the question is not if the source is reliable or not, but how it can be interpreted. By interpreting the text one can trace the UN experts’ attitudes concerning judicial standards and their view of Cambodia, and see which aspects of Cambodian politics and history these experts find most pertinent to highlight.

When sources are utilized as accounts about events external to the sources itself, their validity needs to be corroborated through comparison with other sources. If one uses the source only to derive information about the source itself, the problem is not to establish the validity of factual statements, but to conduct a proper interpretation. If I use the UN experts’ report to illuminate the politics in Cambodia, I should not expect the words of the UN experts to tell the truth, but compare this account with other independent sources. However, I do not have to consult other sources to confirm that the UN experts have expressed the view that the Cambodian legal system is substandard, because this finding is directly related to the source itself.

42 This distinction is in the Norwegian literature on methodology referred to as the distinction between “beretninger” (accounts) and “levninger” (remnants/ artifacts). See Dahl, Ottar 1997. Grunntrekk i historieforskningens metodelære . Oslo: Universitetsforlaget, pp. 37-39. 24

The principle of utilizing multiple sources is often called “data triangulation”. One can distinguish, firstly, between “convergence of evidence”, i.e. that “the facts of the case study have been supported by more than a single source of evidence”, and, secondly, when a study includes multiple sources, but cover different facts. 43 It is only the first type that is proper data triangulation. In this thesis, various types of data are used to establish facts, such as news articles and reports, commentaries, interviews and some secondary literature.

1.4.3 Summary Will my approach give well-founded answers to the research questions? The questions are certainly challenging. Challenges relate both to the broader thematic framework of transitional justice, and the specific question of the process leading up to the forthcoming trials in Cambodia. My thesis is within the field of political science, but I have also taken into account some central legal issues. The thesis has a normative starting point, conducts an empirical investigation, and has established an analytical framework based on prior research and central international human rights principles. The main theoretical approach I apply is from the field of international relations, as this is highly relevant when discussing international involvement in a country’s policies. The field study gave indispensable background information and insight into the topic. I have utilized documentary sources to establish facts, and documents provided by the actors in the process have been used to illuminate their roles and viewpoints. In sum, the source material gives firm ground for the conclusions I draw. Still, it is important to remember that there are some remaining points of uncertainty.

1.5 The structure of the thesis Chapter two will present the background for the upcoming Khmer Rouge trial. A brief historical outline will be given, with particular focus on the crimes committed by the Khmer Rouge regime and the lack of sanctions against the leadership of

43 Yin, Robert K. 2003. Case Study Research. Design and Methods 25 . London: Sage Publications, p. 99.

Democratic Kampuchea. Second, this chapter will address the relevant aspects of international law, and describe different mechanisms of transitional justice. Special attention will be paid to “mixed” courts. Finally, chapter two will give a short presentation of the arrangement that the UN and the Cambodian government have agreed to in Cambodia.

In chapters three, four and five, the four research questions will be discussed. Chapter three addresses the need for international involvement. To address this question, the transition from Khmer Rouge rule and the effect of the transition on the possibilities of a trial will be discussed. Second, the chapter will examine the political struggle surrounding the process leading up to the Khmer Rouge trial. The key argument is that the possibility of legal sanctions against the Khmer Rouge leaders has been used in a political power play, and that the issue remains highly politicized. Moreover, the rule of law in Cambodia is addressed. The chapter argues that the Cambodian legal system does not carry the competence or the independence to handle this trial alone. Finally, this chapter discusses the concept of “victors’ justice” applied to the Cambodian case, and gives a short theoretical discussion of the background for the request for a trial.

Based on the conclusions from chapter three, chapter four focuses on the agreement between UN and Cambodia, and the negotiations leading up to this agreement, in order to assess whether the UN prejudiced international standards of justice when concluding the agreement with Cambodia. A central point in this discussion is the possibility of political influence over the trial, in light of the composition of the group of legal personnel and the decision-making procedures of the court. The question of local ownership will also be addressed in this chapter.

Chapter five addresses the third and fourth research questions. This is not a major part of the thesis, but needs to be addressed as it can shed light on the prospects for fairness once a trial will be conducted. Pressure from influential states will be highlighted as major force behind UN’s acceptance of the terms of the agreement.

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Moreover, the negotiating result is explained in light of Risse’s theory of international norms and domestic change.

Chapter six draws together the conclusions to the four research questions, and addresses the question that was a starting point for this thesis: How has the UN involvement affected the prospects for a fair trial in Cambodia? The utility of theoretical approaches to the study of the Cambodian case is discussed. Finally, this chapter draws up some comparative perspectives relevant to the discussion of the mixed court in Cambodia.

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2. Background

2.1 The Cambodian genocide 44 The politics of the Khmer Rouge was a blend of utopian communism and racism. The Khmer Rouge was inspired by Maoism. The peasants were the favoured class, and the goal was a rural utopia, inspired by myths about the glorious days of the medieval Angkor kingdom. 45 The Khmer Rouge considered the urban population subhuman. The majority of the victims were Khmer, but the ethnic minorities were targeted disproportionately hard. The racism was inconsistent, but the Khmer Rouge labelled their enemies in medical terms, such as “microbes” and “pests”, a phenomenon well known from other genocides. 46 A central aim of the Cambodian revolution was purity – class purity as well as racial purity. Pol Pot considered his revolution as the only “clean” in history, and he called himself “the Original Khmer”. 47 During his rule, family ties were obliterated, religion banned, traditional culture destroyed, books were burned, “Western” medicine was destructed and money was abolished. All communication with the surrounding world was cut off. 48 The goal was a complete transformation of society and individuals. Cambodia was turned back to “year zero”. 49

This blend of communism, racism and utopianism resulted in a nightmarish social experiment unprecedented in history. Under Khmer Rouge rule up to a quarter of the Cambodian population died from starvation, disease, exhaustion, torture or execution.

44 The term “genocide” is not necessarily the legally correct term to describe all the deaths in Cambodia, but in line with most literature in the field I will apply it when describing the policies of the Khmer Rouge. I will return to this discussion below. 45 Kiernan, Ben 1996. The Pol Pot Regime. Race, Power and Genocide in Cambodia under the Khmer Rouge . New Haven: Yale University Press, p. 8. 46 Kiernan, Ben 2003c. “Twentieth-Century Genocides: Underlying Ideological Themes from Armenia to East-Timor”, in Robert Gellately and Ben Kiernan (eds.), The Specter of Genocide. Mass Murder in Historical Perspective . Cambridge: Cambridge University Press, pp. 32-33. 47 Kiernan 1996: 11. 48 Kiernan 1996: 8-9. 49 Glover, Jonathan 2001. “Cambodia: Overturning the Basket”, in Jonathan Glover, Humanity. A moral History of the Twentieth Century . London: Pimlico, pp. 303-4; Ponchaud, François 1978. Cambodia YearZero . Harmondsworth: Penguin. 28

2.1.1 1969-1975: Prelude to the genocide The brutality of the Pol Pot regime was inflicted on a society already shattered by warfare. By 1969, the war in Vietnam had spilled over to Cambodia. North Vietnamese troops were operating on Cambodian territory, in spite of Prince Sihanouk’s proclamations of neutrality. In 1970, the pro-American general Lon Nol conducted a coup in Phnom Penh and ousted Prince Sihanouk. The Cambodian communists led by Pol Pot fought a guerrilla war against the government. The communists were the strongest oppositional force to Lon Nol and the US involvement in their country, and as early as in 1970 large parts of Cambodia east of the Mekong were controlled by the communists. 50 Their movement gathered momentum when the Americans dropped 500.000 tons of bombes over Cambodia from 1969-73, as Cambodians joined the ranks of Khmer Rouge out of fear and anger with the devastations caused by the carpet bombing. 51 The communists also appealed to educated youth with an emerging political awareness and a growing number of landless and dispossessed farmers. 52 Moreover, the Khmer Rouge gained popular support when Prince Sihanouk joined them after the coup. 53 When the US bombing of Cambodia was halted in August 1973, the Khmer Rouge continued its war against the Lon Nol government. On 17 April 1975, Phnom Penh fell to the Khmer Rouge. Exhausted by the American bombing and five years of civil war, the Khmer Rouge was greeted as heroes when they entered Phnom Penh. Finally, the people believed, the war was over. 54

2.1.2 1975-1979: The crimes committed Immediately after their victory in April 1975, the Khmer Rouge emptied the cities. Phnom Penh and other major cities were swelling with refugees from the preceding civil war, so millions of people were affected by this decision. People were forced on

50 Chandler, David P. 1991. The Tragedy of Cambodian History. Politics, War and Revolution since 1945 . New Haven: Yale University Press, p. 220; Kiernan 1996: 15. 51 Kiernan 1996: 16, 19-20. 52 Kiernan 1996: 6-7. 53 Prince Sihanouk himself said: “I am useful to [the Khmer Rouge] because without me they wouldn’t have the peasants, and you can’t make a revolution in Cambodia without the peasants”. Quoted in Chandler 1991: 229. 54 Becker, Elizabeth 1998. When the War Was Over . New York: Public Affairs, chapter 1; Ponchaud 1978: 20-21. 29

exhausting marches to the countryside, regardless of their physical capabilities. Even hospitals were emptied. Thousands of people, especially among the aged, sick and young, died during the forced expulsion from the cities. 55

Some have argued that the evacuation of the cities was necessary in order to get the refugees from the countryside back to cultivate the land. However, there is little factual support for this explanation. Many refugees would have returned voluntarily, and the evacuation affected all urban residents, not only the former peasants. Moreover, they were not returned to their homes as self-sustained farmers. Agriculture during the Khmer Rouge was completely collectivised. People’s destination during the expulsions totally depended on their location in the cities at the time of evacuation. Explanation must be sought in ideology. Turning every Cambodian into a hard working peasant was part of the Khmer Rouge plan to form an agrarian utopia where there was no room for the urban population; they were obstacles to the revolution, and had to be transformed or eliminated. The elimination of urban life was part of the class struggle and the total transformation of people and society that was the final aim of Pol Pot and his men. 56 François Ponchaud writes: “The good of the people was not the goal of the evacuation of Phnom Penh: its aim was to prove a theory that had been worked out in the abstract without the slightest regard for human factors.” 57 The evacuation of the cities can be identified as the first out of four categories of abuses the Khmer Rouge committed. 58

The second category of abuses, which resulted in the largest number of deaths, was the harsh living conditions at the communal farms, where 95% of the Cambodian population lived during the Khmer Rouge rule. The collectivisation of agriculture was in breach of the traditional life in the countryside, and it completely relied on forced

55 Ponchaud gives a chilling eyewitness account of the events that took place immediately after the Khmer Rouge victory, when the first subjects for evacuation were the hospitalized: “[A] hallucinatory spectacle began. Thousands of the sick and wounded were abandoning the city. The strongest dragged pitifully along, others were carried by friends, and some were lying on beds pushed by their families with their plasma and drip pumping alongside. I shall never forget one cripple who had neither hands nor feet, writhing along the ground like a severed worm, or a weeping father carrying his ten-year-old daughter wrapped in a sheet tied round his neck like a sling, or the man with his foot dangling at the end of a leg to which it was attached by nothing but the skin.” Ponchaud 1978: 22. 56 Glover 2001: 302; Ponchaud 1978: 34-38. 57 Ponchaud 1978: 38. 58 See Report art. 18-31. 30

labour. Hundreds of thousands of Cambodians died from starvation, overwork and disease. In spite of good rice harvests, people were short of food. Rice was sent to China in exchange for weapons, and the Khmer Rouge leadership refused to accept international aid to alleviate widespread hunger. Armed supervisors murdered thousands who did not cope with the work, and the killings often included family members. A Khmer Rouge line often presented to their victims illustrates this indifference to human life: “Spare them, no profit; remove them, no loss”.59 Family life was abolished at the communal farms, and children were encouraged to report on their parents. The Khmer Rouge largely relied on children as guards and executioners.

A third pattern of abuses resulted from the attack on “enemies of the revolution”. People were targeted based on their ethnic, societal or economic background. These included ethnic minorities, intellectuals and religious leaders, as well as officials in the previous regime. People associated with the former regime were hunted down immediately after the Khmer Rouge victory, and their friends and relatives were often executed as well.

The elimination of ethnic minorities resulted from the strong element of racism in the ideology of the Khmer Rouge. All ethnic minorities were targeted, and the Vietnamese suffered particularly hard. During the Khmer Rouge rule, all Vietnamese disappeared from Cambodia. Cambodians were encouraged to kill thirty Vietnamese for every Cambodian; Pol Pot estimated that to kill the 50 million Vietnamese would require the lives of only two million Cambodians. 60 From his days as a student in Paris, Pol Pot carried strong anti-Vietnamese sentiments. 61 This notorious fight against the Vietnamese, which escalated to warfare over border territories, finally led to the downfall of Pol Pot, as it resulted in the Vietnamese invasion in December

59 Kiernan 1996: 4. 60 Kiernan 2003c: 38. 61 Kiernan 1996: 10-11. 31

1978. Other minorities that were hunted down were the Cham, who were mostly Muslims, Chinese, the Lao, and the Thais. 62

Notwithstanding the fact that the Khmer Rouge leadership were mostly French- educated, the Cambodian intelligentsia were considered “counterrevolutionary”, and their existence an obstacle to the transformation of society. They were viewed as instruments of Western imperialism, and exploiters of the peasant class. Many urban intellectuals died from exhaustion faced with the hardship of forced agrarian work, but a substantial number were hunted down and executed.

In accordance with the idea of creating a society from “year zero”, religion was banned and religious leaders were killed. Temples, sacred objects and texts were destroyed, as was the cultural heritage that could be associated either with something foreign or traditional. Of the 70 000 Cambodian monks, only 2000 survived the Khmer Rouge period. 63

Purges within the ranks of the Khmer Rouge constitute a forth category of abuses. The leadership was moved by ever-increasing paranoia, and a large number of the victims of torture and executions were Khmer Rouge members suspected of being KGB or CIA agents, or “Khmer bodies with Vietnamese minds”. 64 Whole Khmer Rouge units were killed, often with their family and friends. Children of suspected enemies were not spared. The purges within the party ranks started as early as in 1971, 65 and lasted until the downfall of the regime. From 1976, centres of torture and interrogation were established around the country, the most notorious being the Tuol Sleng in Phnom Penh. The prisoners at the Tuol Sleng were brutally tortured, often for many months, and their “confessions” were meticulously written down, before they were deported and executed at the killing fields outside the city. Of the

62 Kiernan 1996: 458. 63 Encyclopedia of Genocide 1999. Edited by Israel W. Charny (ed.). Santa Barbara, California: ABC Clio Press , p. 132. 64 Kiernan 1996: 3. 65 Kiernan 1996: 16. 32

approximately 16 000 prisoners at the Tuol Sleng, only nine people are known to have survived. 66

2.1.3 The victims In his study The Pol Pot Regime. Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79 , Ben Kiernan gives an overview of the estimated death tolls for every population group during the Khmer Rouge. 67 Kiernan sums up the total death tolls to about 1.7 million. Of these, approximately 1.3-1.4 million were Khmer. 215 000 ethnic Chinese perished, 50% of the Chinese minority. 20 000 Vietnamese perished, 100% of the Vietnamese minority. 90 000 Cham Muslims perished, which constituted 36% of this minority. Regarding the total death tolls in the period of Democratic Kampuchea, Ben Kiernan’s estimate of 1.7 million victims has for long been widely accepted as plausible. Recent research, mostly based on mapping of newly discovered killing fields and burial pits, indicates that the numbers are somewhat higher. The researcher Craig Etcheson has estimated a total death toll of more than three million.

In a more recent article, Kiernan repudiates Etcheson’s claims. Kiernan argues that one can “safely conclude, from known pre- and post-genocide population figures and from professional demographic calculations, that the 1975-79 death toll was between 1.671 and 1.871 million people, 21 to 24 percent of Cambodia’s 1975 population”. 68 Kiernan builds his estimates on demographic data, while Etcheson relies on estimates of burial pits and mass graves, a method that Kiernan rejects as being “based on assertion alone”. 69

The question of numbers is a highly politicized one. The Government of Cambodia has at times supported very high estimates. However, an estimate of 1.7 to two

66 For a long time, it was believed that seven people survived the Tuol Sleng. The Documentation Center of Cambodia has discovered two more survivors. See Ysa, Osman 2003. “Two More Tuol Sleng Survivors Found”, The Truth, Magazine of the Documentation Center of Cambodia 4: 14-16. 67 Kiernan 1996: 458. 68 Kiernan, Ben 2003a. “The Demography of Genocide in Southeast Asia. The Death Tolls in Cambodia, 1975-79, and East Timor, 1975-80”, Critical Asian Studies 35 (4): 585-597, pp. 586-7. 69 Kiernan 2003a: 587. 33

million deaths seems now to be generally accepted, and an estimate as high as three million is not widely supported.

2.1.4 The perpetrators Pol Pot, “Brother Number One”, would be the primary target of any efforts of accountability if he were still alive, but he died in 1998. Saloth Sar, which was his real name, was born on 19 May 1928. In 1949 he went to Paris, where he studied together with other Cambodians, including Ieng Sary, Son Sen and Khieu Samphan, who later came to form the core leadership of the Khmer Rouge. Pol Pot’s time in Paris formed his ideological thinking; he was a member of the Cambodian faction of the French Communist Party. When he failed his exams in Paris for the third time, he returned to Cambodia during the independence struggle in the early 1950s. 70

During Prince Sihanouk’s rule from 1954 to 1970, the Cambodian Communist party was suppressed. The older and more moderate leaders were imprisoned, while the younger and radical clique around Pol Pot went underground in remote areas of the Cambodian jungle, and gained the leadership in the party in 1963. The radicalised Cambodian Communist Party later came to be known as the Khmer Rouge. 71

Another man who would definitely be among the targets for prosecution if he were alive, is Son Sen. He was minister of defence and chief of the armed forces. At the end of the 1990s the Khmer Rouge split into rival factions, and he was murdered, allegedly on the order of Pol Pot. Ke Pauk, who served as a Chairman of the Central and Northern Zones of Democratic Kampuchea, and was member of the Central Committee of the Communist Party of Kampuchea, would also be on the short-list if he were alive. He was also Deputy Chief of the General Staff of the National Army of Democratic Kampuchea. He defected to the government in 1998, and in return he was made a one-star general in Cambodia’s army, and lived his last years in Siem Reap, Cambodia, until he died in 2002.

70 Kiernan 1996: 9-11. 71 Kiernan 1996: 13-14. 34

Although there is no doubt that Pol Pot was the leader of the Khmer Rouge, little is known of the life within the organization. Everything that happened within the Khmer Rouge was shrouded in secrecy. This fact complicates the question of judicial evidence against the leadership. Pol Pot’s death obviously makes it convenient for the Khmer Rouge leaders still alive to ascribe all responsibility for the politics of the Khmer Rouge to him. Because of the secrecy of the organisation, it is difficult to decide precisely who are most responsible for the crimes. Also, it is unclear how wide the net will be cast in the trial. The trial will only target the leadership of the Khmer Rouge and Democratic Kampuchea, but the exact numbers has been an issue of some disagreement between the UN and Cambodia. However, in the debate over the Khmer Rouge leadership a few names always appear as those most responsible among the survivors. They will definitely be linked to a forthcoming trial. These are: 72

Kang Kek Ieu, better known as Duch, was the director of S-21, the secret police that investigated counterrevolutionaries in Phnom Penh. At the interrogation center known as the Tuol Sleng, approximately 16 000 prisoners were tortured and killed. Now a reborn Christian, he is detained in Phnom Penh, on charges of genocide. The evidence against Duch is clear. He has admitted his role in Tuol Sleng, and his part in many killings. 73 He has stated that he is willing to give testimony in a trial. 74

Chhit Choeun, better known as Ta Mok, served as Chief of the General Staff of the National Army of Democratic Kampuchea and was a member of the Standing Committee of the Communist Party of Kampuchea. He refused to defect to Phnom Penh, consequently he was detained, and he is still in jail on charges of genocide, awaiting the trial. Ta Mok was nicknamed “The Butcher”, and his death squads carried out mass killings. There is little doubt that Ta Mok is one of

72 This list is based on the following documents: Cambodia Daily 1998. “No Tribunal, Gov’t Insists, Until After July Elections”. 8 May; Cambodia Daily 1998. “KR Trial Up to Poll Winners”. 4 May; Chon, Gina 2001. “Can the Cycle Of Violence Be Broken?, Asiaweek 20 July; Etcheson, Craig 2000a. “Cambodia’s most wanted”, The Advocacy Project 13 (2); Faulder, Dominic 1999c. “Big Burden”, Asiaweek 19 March; Faulder, Dominic 1998b. “Rouges and Ex-Rouges”, Asiaweek 1 May; Suh, Sangwon and Dominic Faulder 1998. “Beyond Pol Pot”, Asiaweek 1 May. 73 BBC News 1999. “Cambodia’s chief executioner charged”. 14 May. 74 BBC News 2001. “Khmer Rouge leader ‘wants to testify’”. 7 August. 35

the “big fish”, although he has argued that he was low ranking and knew nothing of the killings. 75

Nuon Chea, known as “Brother Number Two”, who served as Deputy Prime Minister of Democratic Kampuchea and was a member of the Standing Committee of the Communist Party of Kampuchea. He is currently living in retirement in Pailin, the former Khmer Rouge stronghold in western Cambodia. Nuon Chea is considered to be the ideological guru of the Khmer Rouge. He has, as many other Khmer Rouge leaders, pleaded his innocence regarding the deaths of his own people: “I was not a big person in the Khmer Rouge […] I fulfilled my duty to my nation and to Buddhism. Anyway, how do you know that all the skulls in the killing fields stem from the Khmer Rouge period?” 76 He has recently declared that he is willing to testify in a trial, but he denies that genocide took place. “I admit that there was a mistake. But I had my ideology. I wanted to free my country. I wanted people to have well-being.” 77 Duch has said that Nuon Chea ordered the killings at Tuol Sleng. 78

Khieu Samphan, who served as President of Democratic Kampuchea, and was a member of the Central Committee of the Communist Party of Kampuchea. He has been seen as the respectable face of the Khmer Rouge, and he represented the Khmer Rouge in the 1991 Paris peace talks. He is living in retirement in Pailin. The extent of his role in the genocide is unclear, but there have been several allegations that he was closely involved. Lately he has given many interviews claiming his ignorance regarding the atrocities of the Khmer Rouge regime, but unlike the other leaders, he has acknowledged that the regime committed genocide. 79 “I have found it so difficult to believe what people told me of what happened under the Khmer Rouge regime, but today, I am very clear

75 BBC News 1999. “Ta Mok denies genocide in Cambodia”. 8 March; Faulder 1999c. 76 Quoted in Chon 2001. 77 Quoted in Associated Press 2004. “Khmer Rouge Leader Admits ‘Mistakes’”. 18 January. 78 BBC News 1999. “Cambodia’s chief executioner charged”. 14 May. 79 Associated Press 2003. “Ex-Khmer Rouge Leader Admits Genocide”. 30 December. 36

that there was genocide”.80 Earlier he seemed to believe that the best solution was to bury the past: “The Khmer Rouge period was a very complicated time. The local people in charge of the provinces sent us reports saying everything is good, so I did not know about the killings in the countryside […] Let bygones be bygones.” 81 As the likelihood of trials is increasing, his announcements are now somewhat different. He recognises the need for a trial, but still claims to be innocent: “I was not involved in any killings.”82

Ieng Sary, who served as the Democratic Kampuchea Deputy Prime Minister for Foreign Affairs, and was a member of the Standing Committee of the Communist Party of Kampuchea. He is living freely in a villa in Phnom Penh, after his defection in 1996, when he was granted a Royal Pardon. Responsible for foreign affairs, he recalled students and diplomats from abroad after the Khmer Rouge takeover. Of one thousand who returned, two hundred survived. He is by many considered the most odious of the Khmer Rouge leaders, and because of his amnesty, his fate in the trial is particularly interesting, and will be followed closely by the media and NGOs, international and Cambodian alike. As other leaders, he has claimed his innocence: “I did not know about the killings; I was only in charge of foreign affairs.”83

The freedom some of the Khmer Rouge leaders are enjoying is a result of deals struck with the Cambodian government in return for abandoning the guerilla war in the late 1990s. This arrangement also included thousands of lower ranking Khmer Rouge soldiers, who were integrated in the Cambodian army. 84 The most famous of these deals is the amnesty given to Ieng Sary in 1996. This amnesty was an important factor in the dismantling of the Khmer Rouge; it led to a series of other defections, and ultimately to the dissolution of the Khmer Rouge as an armed force.

80 Quoted in BBC News 2003. “Khmer Rouge genocide admission”. 30 December. 81 Quoted in Chon 2001. 82 Quoted in Associated Press 2003. “Ex-Khmer Rouge Leader Admits Genocide”. 30 December. 83 Quoted in Chon 2001. 84 BBC News 1999. “Rebels join the army”. 8 February. 37

Legally it seems possible to try Ieng Sary in spite of the amnesty. The government deliberately designed his amnesty only to cover the 1979 genocide conviction against him, and a law from 1994 outlawing the Khmer Rouge.85 Hun Sen defended the amnesty in the following way: “It’s a question of giving Ieng Sary a pardon and, then, in exchange, we can have peace. Or we can accuse Ieng Sary, try him, and continue the fighting”.86 According to the Cambodian constitution, granting of amnesties is a royal prerogative. In 1998, King Sihanouk refused to give amnesties to Khieu Samphan and Nuon Chea who had just defected, thus opposing the wishes of Prime Minister Hun Sen at the time. 87

In this presentation of the perpetrators, attention has only been paid to the top leaders. Thousands of Cambodians were involved in the crimes. The forthcoming trial will only address the responsibility of the leadership. Although the exact number is not clear, it is likely that there will be between five to ten defendants. The degree to which “ordinary” Cambodians participated in the killings, their motives, their responsibility, and their characteristics concerning age, education, gender etc, is a debate beyond the scope of this thesis.88

2.2 Justice and denial: 1979-1997 Two trials have already been held in Cambodia against leaders of the Khmer Rouge, one in 1979, and another in 1997. However, these trials have in no way met international judicial standards, and have been characterized as “sham trials”.

When the pro-Vietnamese government was installed in Phnom Penh in 1979, it held a trial against the so-called “Pol Pot-Ieng Sary genocidal clique”. At the People’s Revolutionary Tribunal, the two men were sentenced to death in absentia for the crime of genocide. The sentences were never carried out. They were found guilty of

85 See Law on the Outlawing of the ‘Democratic Kampuchea’ Group , 7 July 1994; “The Ieng Sary Amnesty”, Royal Decree of 14 September 1996. 86 Faulder, Dominic 1996. “‘I have to be firm.’ Hun Sen on Pol Pot, Ieng Sary, his own political future – and more”, Asiaweek 27 September. 87 BBC News 1998. “King rejects amnesty”. 30 December.

38

planned and systematic massacre, extermination of officers of the former regime and of the intelligentsia, killings of suspected oppositionists, forced evacuations and forced labor. Moreover, they were found guilty of suppression of religion and culture, abolition of education and health care, destruction of social and economic relations, extermination of religious leaders, ethnic minorities and foreign residents. 89 This trial has never been recognized as anything but a sham, since it did not meet any standards of due process. 90 The defense lawyer at the trial recommended the death sentence for her two clients. 91

Another show trial was conducted in northern Cambodia in 1997. After Ieng Sary’s defection in 1996, Khmer Rouge was split. When Pol Pot’s supporters massacred Son Sen and other rivalry Khmer Rouge members, some turned against Pol Pot, captured him, and held a trial against him. Khieu Samphan, Nuon Chea and Chhit Choeun led this anti-Pol Pot faction, and their intention was probably to distance themselves from their genocidal past. Pol Pot was sentenced to life in prison, which effectively meant house arrest. 92 He was sentenced for the murder of Son Sen and other high ranking Khmer Rouge, but his responsibility for the sufferings under the period of Democratic Kampuchea was not mentioned. 93 In accordance with the usual procedure at Khmer Rouge sentences, no evidence was presented at the trial, no lawyers were present, and no laws were followed. 94 Ironically, at last Pol Pot fell victim to some of his own principles.

During its reign, the Khmer Rouge was supported directly by China, and indirectly by the ASEAN, USA and other Western countries. According to the Realpolitik of the cold war, Democratic Kampuchea was considered an important buffer against

88 For a discussion of the appropriateness of only targeting a few top leaders, and the effects of such a policy on the reconciliation process, see Alvarez 1999: 467-68, discussing the accountability process in Rwanda. 89 Beigbeder, Yves 1999. Judging War Criminals. The Politics of International Justice . New York: St. Martin's Press, p. 99. 90 Report art. 43. 91 Chandler, David 2000. ”Will There Be a Trial for the Khmer Rouge?”, Ethics & International Affairs 14: 67-82, p. 72. 92 Encyclopedia of Genocide 1999: 130-132; Beigbeder 1999: 100. 93 Etcheson, Craig 2000b. “Dealing with Human Rights Violations from a Previous Regime: Dilemmas of Accountability in Cambodia” in Kamal Hossain, Leonard F. M. Besselink, Haile Selassie Gebre Selassie and Edmond Völker (eds.) Human Rights Commissions and Ombudsman Offices. National Experiences throughout the World . The Hague: Kluwer Law International, p. 127. 94 Etcheson 2000b: 128. 39

Vietnamese expansionism. Despite the dictatorial communism that guided the regime, the USA, ASEAN and many other countries preferred an independent Kampuchea to Vietnamese control over the area. When Henry Kissinger visited Jakarta on 6 December 1975, he shared his views on Democratic Kampuchea: “We don’t like Cambodia, for the government in many ways is worse than Vietnam, but we would like it to be independent.”95 The Vietnamese invasion that threw Pol Pot out of power in January 1979, and effectively halted the genocide, was not approved of in the international community. Although the atrocities of the Khmer Rouge regime were well known by 1979, the group continued to hold Cambodia’s seat in the UN, 96 and no measures of accountability were taken. In the mid 1980s, two efforts to bring a case against the Khmer Rouge to the International Court of Justice failed due to unwillingness among the ASEAN and Western countries. 97 In the 1991 Paris peace agreement, neither the genocide nor accountability was mentioned. 98 At the UN in New York, the Khmer Rouge flag flew until 1992. 99

Since the elections in 1993, handling the Khmer Rouge has been a constant issue for the Cambodian government. The UN mission in Cambodia (UNTAC - UN Transitional Authority in Cambodia) failed to put an end to the armed conflict between the Khmer Rouge and the Cambodian government. The first years after the elections, the policies towards the Khmer Rouge were affected by the security problem the Khmer Rouge warfare caused. It was mainly a question of how to neutralize the Khmer Rouge as a military force. Some wanted to defeat the Khmer Rouge militarily, while others argued that the best option was to accommodate the Khmer Rouge. In exchange for ending their warfare and giving up the areas they controlled, they should be offered a role in government or the military. 100 By and

95 Quoted in Kiernan, Ben 2003b. “Historical and Political Background to the Conflict in Cambodia, 1945-2002”, in Kai Ambos and Mohamed Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia . Freiburg: Max-Planck-Institut für ausländisches und internationales Strafrecht, p. 179. 96 A coalition of four political groupings represented Cambodia in the UN from 1982, but this coalition was dominated by the Khmer Rouge. 97 Etcheson 2000b: 118-19. 98 The Paris peace agreement merely stated that “Cambodia’s tragic recent history requires special measures to assure protection of human rights, and the non-return to the policies and practices of the past”. Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 23 October 1991 99 Kiernan, Ben 2002. “Introduction: Conflict in Cambodia, 1945-2002”, Critical Asian Studies 34 (4): 483-495, p. 488. 100 Navabotr, Tam 1994. “Realpolitik vs morality and justice in Cambodia”, Phnom Penh Post 11-24 February. 40

large, this latter option was followed. The policy of accommodating Khmer Rouge members who gave up their struggle was legally sanctioned by the Law on the Outlawing of the “Democratic Kampuchea” Group of 7 July 1994. The law put a ban on Khmer Rouge membership, but members were offered a six month amnesty period during which they could avoid penalty by surrendering to the government. The law decided that the amnesty provision did not apply to Khmer Rouge leaders. However, this exception, as well as the six month limit, has been ignored in the government’s policies. 101

A classic dilemma regarding transitional justice is the balancing of the need for peace versus the demand for justice. In the first years after the 1993 elections, this dilemma seemed very real in Cambodia. The Khmer Rouge constituted a threat to peace and stability in the country. Calls for accountability could have escalated the conflict or delayed defections to the government. However, with the dismantling of the Khmer Rouge, the issue of sanctions against the leaders can be raised without endangering the peace. This has at least been the case since 1998-99, and is strengthened by the fact that only a few leaders are likely to be put on trial. They alone are not able to threaten the Cambodian government. As the strategy of neutralizing the Khmer Rouge gradually succeeded, the discussion of legal accountability emerged. 102 Since the mid 1990s, many Cambodian NGOs have advocated the prosecution of the Khmer Rouge, and they have, together with international NGOs, mostly requested an international tribunal. In a letter to Kofi Annan of 21 June 1997 the Cambodian co- prime ministers requested UN assistance for a trial. Since then, the question of legal sanctions against the Khmer Rouge has been on the agenda both in Cambodian politics and among international actors.

2.3 Transitional Justice Although my thesis is within the field of political science, some legal issues must be addressed. In this part of the thesis, an outline of the most relevant principles in

101 Etcheson 2000b: 121. 41

international law will be given. The different mechanisms of legal redress will be described. Particular attention will be paid to so-called “mixed courts”, and the mixed solution in Cambodia will be presented.

2.3.1 International law – the Nuremberg legacy In the years following the Second World War international law underwent substantial developments. With the Nuremberg tribunal the principle of individual criminal responsibility in international law was established. Prior to Nuremberg, there were very few exceptions to the rule of impunity for acts committed on behalf of a state. The Nuremberg principles, adopted by the UN General Assembly in 1946, stated that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment”.103 The crimes concerned were not only war crimes, but also the new legal concept of crimes against humanity .104 The Genocide Convention 105 of 9 December 1948 followed directly from the Nuremberg tribunal. With the adoption of the Universal Declaration of Human Rights on 10 December 1948, the rights of the individual human being were recognized as a matter of international concern, and the principle of state sovereignty could no longer be a shelter behind which the most heinous human rights abusers could hide. 106

Cambodia has been a party to the Genocide Convention since its entry into force in 1951, and did not withdraw its signature during the period of Democratic Kampuchea. Despite the dreadfully high death tolls of the Khmer Rouge regime, the question remains what legal category of crimes the Khmer Rouge committed against its own population. The Genocide Convention defines genocide as “acts committed

102 Asiaweek 1996. “This is not a Vendetta”. 22 March; Navabotr 1994. 103 Encyclopedia of Genocide p. 550. 104 The term “crimes against humanity” actually originated in 1915, when France, Great Britain and Russia condemned the Turkish massacre of more than one million Armenians as “crimes against civilization and humanity”. The Turkish government was never held responsible for this genocide, and the Charter of the Nuremberg War Crimes Tribunal was the first international codification of crimes against humanity. Scharf, Michael 1996. “The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes”, Law and Contemporary Problems 59 (4): 41-60, p. 52. 105 The full name is Convention on the Prevention and Punishment of the Crime of Genocide , 9 December 1948. 106 Ratner, Steven R. and Jason S. Abrams 2001. Accountability for Human Rights Atrocities in International Law. Beyond the Nuremberg Legacy . Oxford: Oxford University Press, pp. 3-7. Although the concepts of crimes against humanity and genocide have become a central part of the legacy of Nuremberg, these crimes were by no means at the core of the prosecutions at the time. The most central points were crimes against peace and war crimes, and the crimes against the European Jewry were, at best, only a secondary motive for punishment. Bass 2002: 173-180, 191-194. 42

with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (art. II). According to this definition, the ethnic minorities in Cambodia were victims of genocide. In numbers, ethnic Khmer were the largest group of victims, but proportionally the ethnic minorities were targeted particularly hard. Regarding the ethnic Khmer, however, the issue is more complicated. If one interprets the Convention narrowly, this group of victims is not protected by the definition in the Convention, as it does not list social, political or economic groups as potential targets of genocide. The Khmer were victims of what one may call “political genocide”/ “politicide” or “auto-genocide”. 107 Moreover, it may be difficult to establish that the Khmer Rouge leadership had the intent 108 to destroy, in whole or in part, the ethnic Khmer as a group. On the other hand, the leadership did not seem opposed to the idea of killing about six million Cambodians out of a population of approximately eight, as a message was broadcasted on the Khmer Rouge radio that one to two million young people would be enough to build the new Kampuchea. 109 There is a possibility that the Convention will be interpreted in a way to include the ethnic Khmer as victims of genocide, who were targeted because of their class (educated, middle class), residence (urban), economic status (capitalist) or any other real or imagined trait that served to label them as “enemies”. 110 A vast proportion also died from exhaustion and appalling living conditions, and not as a result of their association to any societal group. More than half a century has passed since the drafting of the Genocide Convention, and the deliberate exclusion of political or economic victims was a result of a political compromise with Stalin. International law is not static, but in constant development, and it is an open question how this legal issue will be

107 Marks 1999: 695. 108 The term “intent” can be understood in two ways. First, as the equivalent of “motive”. This would imply that the legal requirement of intent, according to the Genocide Convention, is not fulfilled if the motive behind an action was not to destroy a group, although that was the consequence. A second understanding of intent, which is more common in national and international criminal law, implies that the motive is not relevant to the presence of intent. “Prosecutors need only prove that the criminal act was intentional, not accidental.” Gellately, Robert and Ben Kiernan 2003. “The Study of Mass Murder and Genocide”, in Robert Gellately and Ben Kiernan (eds.), The Specter of Genocide. Mass Murder in Historical Perspective . Cambridge: Cambridge University Press, p. 15. An act that destroys a group in whole or in part, is intentional and therefore genocidal, “whatever the goal or motive, so long as the acts of destruction were pursued intentionally”. 109 Ponchaud 1978: 92. 110 In the case that the majority of Khmers will not be classified as victims of genocide, it is still possible to include groups of Khmers, especially the Buddhist monkhood, who qualify as a religious group, and is thereby protected by the Genocide Convention. See Report art. 63, 64. 43

interpreted. 111 The UN Group of Experts stated that “whether the Khmer Rouge committed genocide with respect to part of the Khmer national group turns on complex interpretive issues, especially concerning the Khmer Rouge's intent with respect to its non-minority-group victims. The Group does not take a position on this issue, but believes that any tribunal will have to address this question should Khmer Rouge officials be charged with genocide against the Khmer national group”. 112 In any case, the murder of about 1.4 million ethnic Khmer can be classified as “crimes against humanity”, 113 and is thereby punishable under international law.114 A central judicial principle – nullum crimen sine lege – prevents prosecutions of acts not considered crimes at the time they were committed. At the Nuremberg tribunal, a link to acts of war was required for abuses to fall within the judicial concept of crimes against humanity. One can ask whether this requirement still existed in 1975, thus preventing the prosecution of the majority of the atrocities of the Khmer Rouge, since these can not be linked to the warfare the regime engaged in. However, the UN Group of Experts argued that this link was sufficiently weakened by 1975 115 to allow for prosecution of this crime without violating the principle of nullum crimen sine lege .116

Democratic Kampuchea engaged in warfare with Vietnam. The UN experts concluded that the Cambodian army did commit acts that constitute as grave breaches of the Fourth Geneva Convention, and consequently that war crimes should be

111 For the argument that the ethnic Khmer should be included as victims of genocide, see Rothenberg, Daniel and Baltasar Garzón 2002. “‘Let Justice Judge’: An Interview with Judge Baltasar Garzón and Analysis of his Ideas”, Human Rights Quarterly 24 (4): 924-973, pp. 948-49. Judge Baltasar Garsón argues that “one should focus on a progressive rather than a conservative interpretation of the meaning of genocide because the human capacity to produce terror and create disaster moves much more quickly than legislation designed to prevent it”. P. 948. 112 Report art. 65. 113 The term “crimes against humanity” covers a broader range of crimes than genocide. Unlike genocide, this term has its origin in customary international law. The Rome Statute of the International Criminal Court has largely been seen as a codification of the term. The agreement establishing a Khmer Rouge trial in Cambodia will apply the concept of crimes against humanity as defined in the Rome Statue. See Agreement art. 9. According to the Rome Statute art. 7, crimes against humanity are not limited to national, ethnical, racial or religious groups, as is the Genocide convention. Crimes against humanity can be “directed against any civilian population”. 114 Marks 1999: 696. 115 The requirement of a link to warfare was particularly weakened by the 1954 Draft Code of Offences Against the Peace and Security of Mankind presented by the International Law Commission, and by the 1968 Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Report art. 71. 116 Report art. 60, 71. 44

included in the trial against the Khmer Rouge leaders. 117 Moreover, the experts found support for including the crime of forced labour in the jurisdiction of the trial, since Cambodia was a party to the 1930 Convention on Forced Labour, also during the Khmer Rouge period. 118 Concerning the crime of torture, there is some legal uncertainty, since the Torture Convention was not concluded until 1984. However, a norm of criminality had emerged in customary international law by 1975, and the Group of Experts argues that torture should be included in the court’s jurisdiction, although the relation to the principle of nullum crimen sine lege may be examined closely. 119

Regarding the evidence, the Group of Experts found that there is clear evidence that crimes were committed under international and Cambodian law. They recognized the difficulty of providing sufficient evidence against the individuals of the leadership, not only against the lower ranking officials who actually carried out the killings. However, they believed that with significant effort from highly qualified investigators, there will be sufficient evidence to try the Khmer Rouge leadership. 120

2.3.2 Prosecution and punishment in international law Kritz argues that there is an ongoing paradigm shift in the attitudes towards the need for accountability. “It is increasingly recognized as an integral and unavoidable element of the peace process.”121 Moreover, he writes: “There is a growing consensus in international law that, at least for the most heinous violations of human rights and international humanitarian law, a sweeping amnesty is impermissible.”122 The establishment of the International Criminal Court (ICC) is another sign in this direction.

117 Report art. 72-74. 118 Report art. 77. 119 Report art. 78. The UN experts also investigated the potential of prosecution for crimes under Cambodian law, and found that there are very few sources on Cambodian law covering that period. Still, they find it possible to use Cambodian law as a basis for prosecution of the crimes of murder, torture, rape, unlawful detention, other physical assaults, attacks on religion and other abuses of governmental authority. See Report art. 84-88. 120 Report part IV, esp. art. 56, 58. 121 Kritz 1996: 128. 122 Kritz 1996: 134. 45

Juan E. Méndez argues that there is an obligation to react to severe human rights abuses: “The international law of human rights recognizes that the state is obliged not only to refrain from committing certain acts against the individual but also to carry out duties of an affirmative nature.”123 But despite the duties of “affirmative” nature, is there a legal obligation to punish human rights abuses?

Generally, the Universal Declaration on Human Rights and the Covenants 124 set out an obligation to “ensure” the rights recognized therein. But to argue that “ensure” implies “prosecute”, is probably incorrect .125 However strong the political and moral imperatives, there is no general duty under international law to prosecute human rights abuses. Still, an obligation to punish may follow from specific international conventions, such as the Geneva Conventions of 1949, the Torture Convention, and of particular interest to my thesis, the Genocide Convention. 126 The Genocide Convention states in article I that “[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish”. Article IV states that perpetrators of genocide “shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”.

Regarding crimes against humanity, the law is more uncertain. Until the establishment of the International Criminal Court, such an obligation was not established in any convention or treaty, so one has to look to customary international law, which is just as binding as treaty law. 127 Several commentators argue that an obligation to prosecute has existed since the days of Nuremberg, but this argument may stem from a mixing of political, normative and legal arguments. Scharf emphasizes that international customary law must be drawn from legal practice, which has not shown commitment to prosecution of these misdeeds. Quite to the

123 Méndez, Juan E. 1997. “In Defense of Transitional Justice”, in A. James McAdams (ed.), Transitional Justice and the Rule of Law in New Democracies . Notre Dame: University of Notre Dame Press, p. 5. 124 I.e. the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of 16 December 1966. 125 Scharf 1996: 48. 126 Scharf 1996: 43. 127 Scharf 1996: 56. 46

contrary, crimes against humanity have usually been met with amnesties and impunity. 128 As Scharf concludes, “the practice of states does not yet support the present existence of an obligation under customary international law to refrain from conferring amnesty for such crimes”. 129

The absence of a legal duty, however, should be no obstacle for retributive means. Cambodia is only one out of many examples that authorities do take punitive action based on political and/ or normative considerations. And the recent decades have seen an increased use of trials or other transitional mechanisms in societies emerging from conflict and human rights abuses. Therefore, although the law regulating these issues is still not fully developed, politics may push for increased legalization in the human rights field. The recent establishment of the International Criminal Court is an example of this. 130 This development has also suffered significant blows, partly due to the resistance from the big powers, most notably the USA. This, however, does not prevent trials from taking place in other arenas, and as noted above, national courts have always been the most important grounds for human rights trials. National trials must be seen as part of the international legal order, as international principles often lead to and guide such trials. Also, with the principle of complementarity, a permanent international court should only intervene in exceptional cases, when the national judiciary is unwilling or unable to conduct a trial.

2.3.3 Mechanisms of transitional justice Different procedures can be employed after severe human rights abuses, such as truth commissions, restorative justice (victims’ compensation or rehabilitation), prospective justice (institutional, political or social reform) and administrative justice (purges or lustration). 131 The focus of this thesis is on mechanisms of retributive

128 Scharf 1996: 56-59. 129 Scharf 1996: 59. 130 The tribunals for the former Yugoslavia and Rwanda and the ICC have made important contributions to the development of international law in this field. Though we may not see the establishment of such ad hoc tribunals again, they have, together with ICC, been important in the codification of international law in this field. 131 Gloppen, Siri 2002. Reconciliation and Democratisation: Outlining the Research Field (Report R 2002: 5). Bergen: Chr. Michelsen Institute, p. 3. For an overview and classification of the different types of reconciliation mechanisms, see pp. 1-5. For the most comprehensive source in the field transitional justice, see the three volumes of Kritz, Neil J. (ed.) 1995. 47

justice through individual legal accountability, namely criminal justice, i.e. prosecution through trials.

A discussion of the other mechanisms for addressing human rights abuses is beyond the scope here. Despite addressing only trials, this thesis does not suggest that a trial is the most or only suitable transitional mechanism in every society, or in Cambodia. This thesis does not address the discussion of trials versus other means, such as truth commissions. No single mechanism is applicable to every society coming to terms with its past, and, importantly, one mechanism does not necessarily exclude another. Gloppen argues that one of the most important lessons learned in this research field is that “there is no single superior strategy or institutional model for addressing the problem of past human rights violations. Each particular case must be addressed on its own terms”.132 She also holds that an important finding is that one single strategy is rarely sufficient. Moreover, “[i]t is naive to believe that transitional justice institutions, however sophisticated, can bring reconciliation once and for all”. 133 When I discuss the forthcoming trial in Cambodia, it is with these important insights in mind.

2.3.4 National, international and mixed courts Mechanisms of transitional justice can be of national, international or some kind of mixed nature. National trials take place domestically, with domestic personnel, by the domestic judiciary, alternatively in national ac hoc courts (as the local courts in Rwanda). National trials are the most common way of pursuing transitional justice. International trials can be trials in foreign courts (e.g. Belgium/ Rwanda) or in a permanent institution (the new International Criminal Court). Other international mechanisms are the ad hoc tribunals for the former Yugoslavia and Rwanda. Mixed or hybrid courts are located nationally, but with some degree of international participation and support. A mixed tribunal will have both national and international

Transitional Justice. How Emerging Democracies Reckon With Former Regimes . Washington, D.C.: United States Institute of Peace Press. 132 Gloppen 2002: 49. 133 Gloppen 2002: V, 49. 48

judges, applying both domestic and international law. 134 It is this kind of court that will be established in Cambodia. A mixed court can be defined as an arrangement where “national and international elements are embodied in the organization, structure and functioning of the Court systems, in the criminal procedures employed, and in the application of laws”. 135 There is no standard definition of the degree of international and domestic components required for the term “mixed” to be applied, but the localization is essential: “A golden thread running through all these arrangements is that the mixed tribunals or courts are located in the very States in which the crimes they were established to adjudicate were committed.”136

2.3.5 Mixed courts: The best of both worlds? As noted in the introduction, two considerations are of particular importance when assessing a judicial mechanism of this kind: Firstly, local ownership, and secondly, high standards of justice. Can a “mixed” or “hybrid” formula strike a proper balance between the two?

Transitional justice as a research field has grown significantly, but relatively little has been written about mixed or hybrid courts. 137 An obvious reason for the lack of scholarly attention to the hybrid courts may be that this is a new phenomenon, and the few such courts have been established on an ad hoc basis. 138 Furthermore, many advocates of international tribunals may not want to support the idea of mixed courts. 139 Advocates of national courts, on their side, have seen the mixed solutions as carrying too many of the drawbacks of international courts. Consequently, as Dickinson concludes, “hybrid courts are being squeezed from both sides”. 140

134 Gloppen 2002: 12. 135 Ambos, Kai and Mohamed Othman 2003. “Introdiction” in Kai Ambos and Mohamed Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia . Freiburg: Max-Planck-Institut für ausländisches und internationales Strafrecht, p. 2. 136 Ambos and Othman 2003: 2. 137 In this section about hybrid courts, I will rely mostly on Dickinson, Laura A. 2003. “The Promise of Hybrid Courts”, The American Journal of International Law 97 (2): 295-310. This is one of the few articles that discuss the issue systematically. 138 Dickinson 2003: 296. 139 Dickinson 2003: 296. 140 Dickinson 2003: 296. 49

The recent years have seen the establishment of mixed courts in East Timor and Sierra Leone, in addition to Cambodia, which is the latest effort. A similar effort was established in Kosovo, but this program has been abandoned. 141 The possibility of setting up a hybrid court in postwar Iraq has also been discussed. 142 In East Timor, Sierra Leone and Kosovo, the hybrid mechanisms were established due to lack of resources and qualified personnel domestically, and the illegitimacy of the national legal systems. An international tribunal was not an option in these cases, as it did not exist, would be too expensive and time-consuming to establish, or could not handle the large amount of cases. 143

The question that is particularly interesting regarding hybrid courts is whether these institutions may reduce some of the main shortcomings of purely international or national mechanisms. Regarding international tribunals, the core problem relates to the distance from the victims and the society concerned. The importance of local ownership has been highlighted in the debate following the establishment of the tribunals for Rwanda and the former Yugoslavia. The tribunal in The Hague is heavily criticized within Yugoslavia and the Serbian Republic. Information on the tribunal in Arusha, Tanzania, has not reached out to the affected Rwandan public, and there has been little press coverage of the tribunal. Consequently, the tribunal has contributed little to the national reconciliation and peace building, which were the goals of the tribunal. 144 For national trials, the legal culture in a society emerging from severe conflict and the probable lack of resources and personnel are the main problems. These factors, physical distance and a weak legal system, reduce the legitimacy of international and national trials respectively. Ideally, a mixed court provides local ownership, and at the same time the international participation ensures high judicial standards and sufficient resources and personnel. Thus, such a solution could enhance the legitimacy of the legal process significantly. As Kritz writes,

141 Linton, Suzannah 2001. “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, Criminal Law Forum 12: 185-246, p. 185. 142 Dickinson 2003: 295. 143 Dickinson 2003: 296-300. 144 Kritz 1996: 131-32. 50

“[t]his type of arrangement may combine the best of both worlds”. 145 Additionally, purely national or international trials may not contribute to the capacity-building of the domestic legal system. A hybrid court may well carry this potential. 146 Finally, a hybrid court may establish transnational communication between judges or other actors involved. 147 Thus, international norms of accountability may spread to the local level, due to interaction between the actors that will not take place in purely domestic or purely international trials. This argument resembles Risse’s theory of international influence on domestic policies. However, Risse focuses on a network’s influence on a target government as a mechanism of norm diffusion, whereas Dickinson emphasizes the possibility of interaction between individual actors.

Despite the potential of hybrid courts, these mechanisms may face problems of the same kind that relates to purely national or purely international trials. Concerning legitimacy, as Dickinson shows, the hybrid solution may raise questions of who is really in control of the process. In East Timor, local actors have criticized the court for being dominated by the international actors. On the other hand, if the international actors have too little influence, this may lead to concerns about the impartiality and independence of the court. 148 As we shall see, this is at the core of the problem in Cambodia. There is no easy solution to this dilemma, which is clearly not solved automatically by the hybrid model itself.

The capacity-building will be undermined by lack of resources, and substantial international participation is no guarantee for sufficient funds. In East Timor the extensive mandate has not been followed by sufficient funding and personnel, and consequently the court cannot fulfill its potential.149 Also, regarding the potential norm-penetration, the experiences from the hybrid courts are mixed. In East Timor the lack of qualified international personnel has troubled the court. 150 These problems arise in the case-to-case implementation of a hybrid model, and illustrate that the

145 Kritz 1996: 149. 146 Dickinson 2003: 303-4, 307. 147 Dickinson 2003: 304-5, 307. 148 Dickinson 2003: 306. 149 Dickinson 2003: 307. 51

question of resources is always essential, and cannot be easily solved by institutional inventions. In any case, one could expect that the international society would more readily give financial support to trials with international involvement, and thus the problems of insufficient resources would most likely be even larger if the trials were purely domestic. Neither is a purely international tribunal an answer to the resource issue, as these have proved to be extremely expensive, and fund-raising has been a problem. The Rwandan case exemplifies this. Out of an estimated 100.000 perpetrators, the Arusha tribunal is expected to try approximately 80, and it costs $ 40 million a year.

Although it is extremely difficult to create and implement a mechanism that truly combines the best of both worlds, a mixed court might in many cases be the best option available. Even after a transition a fair and free national trial is still very often only a theoretical option. 151 “In virtually every country emerging from a period of massive abuses, the personnel, facilities, and culture of the legal system will have to be put on the right track […] through a multi-year process.”152 Hence, Kritz concludes that usually the best alternative is a mixed mechanism, where the international society offers sufficient support to the domestic legal system. 153 Such an effort, Kritz believes, would contribute to the establishment of the rule of law, and the accountability mechanisms that take place domestically serve an extremely important purpose: “They allow a society that previously has been victimized and made to feel powerless against the atrocities which engulfed it to reclaim a sense of control over its own destiny.”154

150 Dickinson 2003: 307. 151 Kritz 1996: 148. 152 Kritz 1996: 148. 153 Kritz 1996: 148. 154 Kritz 1996: 149. 52

2.4 The mixed court in Cambodia – a short presentation The Cambodian solution was a result of prolonged and difficult negotiations between Cambodia and the UN. I will only give a brief presentation of the mixed court in Cambodia here, and return to the details of the negotiations and agreement later.

The establishment of this hybrid solution, the so-called “Extraordinary Chambers”, was decided by an agreement between the UN and Cambodia of 17 March 2003: Draft Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (hereafter “the Agreement”). The Agreement was ratified by the Cambodian National Assembly on 4 October 2004. The Agreement decides that the Extraordinary Chambers have subject matter jurisdiction consistent with the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (hereafter “the Law”). The Law was adopted on 10 August 2001, and on 27 October 2004 it was amended to comply with the Agreement.

The main features of this court are that there will be a majority of Cambodian judges, but an affirmative vote from an international judge is required for any decision. 155 All judges are appointed by the Cambodian Supreme Council of Magistracy, but the international judges are nominated by the UN Secretary General. The extraordinary chambers will have two co-investigating judges, one international and one Cambodian. This arrangement also applies to the prosecutors. 156

The procedure shall be in accordance with Cambodian law, but guidance from international law may be sought. 157 Regarding crimes falling within the jurisdiction of the Extraordinary Chambers, art. 9 states that “[t]he subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948

155 Draft Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea Agreement of 17 March 2003 art. 3, 4. This will hereafter be referred to as “ Agreement ”. 156 Agreement art. 5.1, 6.1. 53

Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers”. Those that will be brought to trial are senior leaders and those most responsible for the crimes committed. 158

The agreement between the UN and Cambodia is without precedence in international law. Due to the involvement of both international and Cambodian judges and prosecutors, reference to both international and Cambodian law, and the use of both international and Cambodian resources, it can be labeled “mixed” or “hybrid”. I prefer to call the institutional arrangement within which the trial will take place “court”, rather than “tribunal”. There will not be a separate institution established, like an ac hoc tribunal, but an extraordinary chamber within the frames of the existing Cambodian judiciary. In the literature, “court” and “tribunal” are often used interchangeably.

The UN involvement was based on an understanding of the Cambodian legal system as substandard and unable to conduct a fair trial of this magnitude. Moreover, the agreement that was finally reached has been heavily criticized by several human rights organizations for not providing sufficient guarantees for international standards of justice. Therefore, in the next chapters, the thesis will discuss how the UN involvement has affected the prospects for a fair trial in Cambodia.

157 Agreement art. 12.1. 158 Agreement , Preamble. 54

3. Is UN involvement a precondition for a fair trial?

In a society undertaking an effort of transitional justice, the balance between domestic and international mechanisms is one of the first dilemmas that must be solved. In Cambodia, the co-prime ministers Ranariddh and Hun Sen in 1997 asked for international assistance to conduct a trial of the Khmer Rouge leaders. In this chapter, I will discuss whether UN involvement is a precondition for a fair trial in Cambodia. Is it likely that the requirements for a fair trial could have been met without UN involvement? As outlined in the introduction, the main prerequisites for a fair trial addressed in this thesis are competence, independence and impartiality. To illuminate these factors, I will address the political power play behind the upcoming trial, and the rule of law in Cambodia. First, however, I will look at a condition that has to be met before a trial can take place: The balance of power between the outgoing and new regime must tilt sufficiently in favor of the new regime, making it politically possible to conduct a trial.

3.1 The transition and its effect on the politics of accountability In The Third Wave , Samuel P. Huntington argues that for a trial to take place there must be the right balance of power between the outgoing and the new regime. Basically, if a transition is negotiated, or “pacted”, the old power holders are likely to have included amnesties in the deal, sometimes they may also keep significant power, for example in the military. In such a situation the opening of proceedings may promote renewed armed conflict, the new government may lack the political power to conduct a trial, or there may be legal obstacles to a trial. If, on the other hand, a transition results from a military victory, where no deals are made with the defeated regime, a trial is possible. 159 Looking at transitions in Eastern Europe and Latin America, Huntington concludes that the decision to prosecute or not to prosecute

159 This does not imply that a trial will most likely take place, only that it is possible. 55

“was shaped almost exclusively by politics, by the nature of the democratization process, and by the distribution of political power during and after the transition”.160

In Cambodia, the transition was not completed by one agreement or one military victory. Rather, the transition in Cambodia must be viewed as a process lasting for two decades. The first step of the transition was the Vietnamese invasion in January 1979. Vietnam drove the Khmer Rouge out of the capital and threw Pol Pot from power. Thus, according to Huntington, the political realities favored a trial in 1979. Shortly after the Vietnamese invasion the new government did set up a tribunal to try Pol Pot and Ieng Sary. The two men were sentenced to death in absentia , but the sentences were never carried out. While Vietnam set up a government in Phnom Penh, the Khmer Rouge established a new headquarter in Pailin close to the Thai border. The new government in Phnom Penh did not control the whole Cambodian territory, and it was not able to capture the Khmer Rouge leaders. Parts of western Cambodia remained under Khmer Rouge control. Thus, the defeat of the Khmer Rouge was not completed in 1979. Instead the Khmer Rouge received international support from several countries, represented Cambodia in the UN and waged war against the Vietnamese puppet government in Phnom Penh for almost twenty years.

The next steps of the transition were negotiated. The Khmer Rouge was a party to the peace talks, which resulted in the Paris peace agreement in 1991. 161 The talks required unanimity for agreements, giving the Khmer Rouge a veto in the negotiations. However, the Khmer Rouge was probably never interested in reaching a political compromise. Kiernan argues that Pol Pot wanted to delay the elections planned for 1993 until the Khmer Rouge again controlled the whole of Cambodia. Khieu Samphan, who represented Khmer Rouge in the talks, expressed intentions to continue the fighting: “The outside world keeps demanding a political end to the war in Kampuchea. I could end the war now if I wanted, because the outside world is waiting for me. But I am buying time to give you, comrades, the opportunity to carry

160 Huntington 1991:215. 161 See Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, 23 October 1991. 56

out all the tasks. If it doesn't end politically and ends militarily, that's good.”162 After the negotiations, the Khmer Rouge remained in their stronghold in western Cambodia and resumed their warfare against the Phnom Penh government. Accordingly, the situation in the early 1990s was not that of a strong new government and a defeated and weak Khmer Rouge. The political realities did not favor a trial. If a tribunal had been set up at this time, it would have had to be internationally conducted, and it would have required a large scale international military operation to capture the Khmer Rouge leaders, since the Phnom Penh government alone did not have the power to enforce decisions. 163 But there was no political willingness to do this; an international tribunal was not an option at the time.

From 1991-93 the UN conducted a large scale mission in Cambodia, in order to ensure transition to democracy. Elections were held in 1993, although the Khmer Rouge tried to sabotage them. In the first years after the elections, the new Cambodian government sought to solve the security problem the Khmer Rouge posed, and gain control over the areas ruled from Pailin. Since the Khmer Rouge held significant military power until the late 1990s, the capture of defendants for a trial was not possible. The setup of a trial at the time would have been likely to prolong or intensify the military conflict between the Khmer Rouge and the Phnom Penh government. In these years, the main task for the government was to ensure peace and stability after more than 20 years of warfare. Despite calls for justice from civil society actors, the government took no steps in this direction until 1997.

The government offered Khmer Rouge members, leaders as well as low-ranking cadres, positions in the military and government in return for their defections. By and large, this strategy was a success, and by the end of the 1990s, the Khmer Rouge had collapsed. 164 After the collapse of the Khmer Rouge, there was no longer any reason

162 Quoted in Kiernan, Ben 1999. ”Cambodia’s Twisted Path to Justice”, The History Place . 163 Chandler 2000: 74. 164 The Cambodian government has called its strategy towards the Khmer Rouge a “win-win policy”, with five different facets; “divide, isolate, finish, integrate and develop”. See “Statement by Senior Minister Sok An, at the Stockholm International Forum”, 23-24 April 2002. 57

to fear that a trial of a few leaders would throw the country back to civil war. 165 The Khmer Rouge leaders were from early 1999 within reach of government authority, and some of them (Ta Mok and Duch) were imprisoned. Moreover, there were no legal obstacles to prosecuting them. The amnesties the leaders enjoyed were not legally sanctioned by a Royal Pardon. The only de jure amnesty, the one given to Ieng Sary in 1996 by King Sihanouk, on the request of the prime minister, did not protect him from future prosecution. The amnesty was deliberately designed to cover only the 1979 genocide conviction and the 1994 law outlawing the Khmer Rouge. Consequently, although negotiations did play a role in the downfall of the Khmer Rouge, the balance of power at the end of the 1990s did not leave the Khmer Rouge leaders with sufficient strength to prevent the initiative for a trial. A negotiated result is generally thought to leave the old regime with sufficient power to prevent a trial. 166 However, unlike the negotiations leading to the Paris peace agreement, where the Khmer Rouge was a veto holding part, the deals struck between the government and Khmer Rouge members in the end of the 1990s did not consolidate the Khmer Rouge as a group. Rather, they led to its disintegration.

However, the negotiated nature of the transition did affect the prospects for a fair trial. First, the government signaled that it would target only a few top leaders, maybe only three to five, thus letting the numerous lower rank Khmer Rouge free from prosecution. It is difficult to know if a wider prosecution would have created unrest, but bearing in mind that thousands of Khmer Rouge were accommodated into the military and were still armed, this seems possible. The government strategy of only targeting a few leaders for a trial was designed not to scare the numerous lower- ranking defectors away. 167 While criticizing the UN for raising the issue of a trial only after 20 years, when the Khmer Rouge had lost their fight in Cambodia, Hun Sen in 1998 expressed his concerns: “Why do they raise the issue…at this time. What

165 A trial might stir up some local hostilities, but an organized attack on the government seems impossible. 166 See e.g. Sieff, Michelle and Leslie Vinjamuri Wright 1999. “Reconciling Order and Justice? New Institutional Solutions in Post-Conflict States”, Journal of International Affairs 52 (2):757-779: “In conflicts that are resolved through a negotiated settlement, domestic prosecutions are not likely to be a realistic option. Negotiated settlements diffuse power among the warring parties such that no one group can impose its will.” P. 759. 167 Cambodia Daily 1998. “No Tribunal, Gov’t Insists, Until After July Elections”. 8 May. 58

is their political intention behind a trial? Do they want to frighten the defectors who [have come to the government] into fleeing into the jungle again or what?” 168 Second, it was difficult for the Cambodian government to accept that the tribunal should prosecute those former top Khmer Rouge leaders who now lived freely, protected by the government, due to the deals they had struck when defecting. 169 Although most of the deals were not judicially sanctioned, a trial would be a breach of the agreements made between the government and the Khmer Rouge leaders. When all but a few Khmer Rouge leaders had defected to the government, Hun Sen talked about the possibility of only prosecuting those who still opposed the government, most notably Ta Mok. Although persons like Khieu Samphan, Nuon Chea and Ieng Sary did not have the capacity to threaten the government, Hun Sen’s statements about only prosecuting Ta Mok show that he hesitated to prosecute those leaders with whom he had struck a deal. If there had not been any international involvement, the government would probably have preferred only to prosecute those few who did not defect voluntarily. Naturally, such a solution could not have been fair. Thus, the negotiated nature of the transition affected the prospects for a fair trial. An international involvement of some kind was clearly needed to ensure that there would be equal treatment of the top leaders.

This last phase of the transition created a complex situation where some of the leaders were more at risk of prosecution than others. The balance of power after the collapse of the Khmer Rouge in the late 1990s favored a trial, but the negotiations that had led to the main defections from the Khmer Rouge affected the government’s willingness to prosecute. Although the main features of this last phase of the transition were negotiated, some individual leaders were taken by force. Those who did not strike a deal with the government were those most likely to face prosecutions. Huntington’s assumption that the nature of the transition affects the prospects for a trial appears valid for Cambodia. The Cambodian situation also shows that a transition can come about both by military victory and negotiation, by individual defections and by

168 Quoted in Cambodia Daily 1998. “KR Trial Up to Poll Winners”. 4 May. 169 These are, most importantly, Ieng Sary, Nuon Chea and Khieu Samphan. 59

individual defeats. The Khmer Rouge was not defeated as a group, but gradually dissolved as some members defected, fractions of the group turned against each other, and finally as some leaders were captured. Thus, in Cambodia, the political realities as created by the transition favored a trial against some, but not against others. Clearly, the complexity of these political realities does not favor fairness in a trial, as the top leaders of the Khmer Rouge would have been treated fundamentally unequally.

The question of how the nature of the transition affects the prospects for a trial is linked to one of the classic dilemmas of transitional justice: peace versus justice. This dilemma, how a post-conflict society can address past wrongs without jeopardizing the newly won peace is perhaps the most widely addressed dilemma in the literature, and often held as the core challenge of transitional justice. 170 If the transition has left the outgoing regime with remaining powers, renewed armed conflict as a response to a trial is much more likely than when the outgoing regime is powerless. This also relates to one of the strongest realist critiques of war crimes trials: that a trial will prolong the warfare or destabilize the peace. 171

3.2 The trial as a means in a political power play By letter of 21 June 1997, Hun Sen, together with co-prime minister Norodom Ranariddh, asked for “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”. Moreover, they stated: “We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and former Yugoslavia, and ask that similar

170 See e.g. Crocker 1999. The argument can also be turned the other way around: there can be no peace without justice. An accountability effort may strengthen a new democracy. Moreover, if the prosecution issue is not addressed, political unrest may be triggered, and cynicism towards the new political system and the law may arise. See Huyse, Luc 1995. “Justice After Transition: On the Choices Successor Elites Make in Dealing With the Past” in Neil J. Kritz (ed.), Transitional Justice. How Emerging Democracies Reckon With Former Regimes. Vol. 1: General Considerations . Washington, D.C.: United States Institute of Peace Press, pp. 340-41. 171 Bass 2002: 285. 60

assistance be given to Cambodia.”172 Clearly, the Cambodian prime ministers did not then reject the possibility of an international tribunal, as they asked for “similar assistance” to that given to Yugoslavia and Rwanda. However, by 1999 the Cambodian government viewed an international tribunal as unacceptable. To understand why this change of attitude took place and the possible intent behind the request in the first place, one has to look at the political developments in Cambodia at the time.

During the mid to late 1990s, a power struggle took place, which had two sides. First, the struggle between the government coalition partners CPP and FUNCINPEC. 173 This struggle culminated in a violent coup in early July 1997. Second, the government’s struggle against the Khmer Rouge. This struggle ended only in March 1999, when the government captured the last remaining Khmer Rouge leader, Ta Mok. These two struggles were interlinked, because a divisive issue between CPP and FUNCINPEC was how to handle the Khmer Rouge.

In the mid 1990s, developments of radicalization and division occurred in the Khmer Rouge. Ta Mok and Pol Pot wanted to renew their fight for socialism, imposed harsh policies, and, according to David Chandler, sent shock waves through the regions they controlled. This led to large scale defections into government-controlled areas. 174 Ieng Sary defected and was granted amnesty and a royal pardon, and together with his followers remained in Pailin, western Cambodia, enjoying economic autonomy. 175 In June 1997, Pol Pot had another top Khmer Rouge, Son Sen, killed, and this led to the setup of a Khmer Rouge court, by fractions that turned against Pol Pot, which sentenced Pol Pot to life imprisonment. 176 At the same time, the power struggle between the CPP and FUNCINPEC intensified in Phnom Penh. Until July 1997,

172 Letter from the Cambodian Co-Prime ministers to Kofi Annan, 21 June 1997. Will hereafter be referred to as “ 1997 Letter ”. 173 CPP is the acronym for Cambodian Pracheachon Party or Cambodian People's Party, FUNCINPEC is the French acronym for National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia. CPP is the successor of the Vietnamese-installed government from 1979, and many CPP members, including Hun Sen, were Khmer Rouge who defected to Vietnam in 1977-78. FUNCINPEC is the Royalist party, and did for many years fight together with the Khmer Rouge against the pro-Vietnamese government and CPP. 174 Chandler 2000: 77-79. 175 Chandler 2000: 77-79. 176 Chandler 2000: 79. 61

Cambodia was governed by a coalition of Hun Sen’s CPP and the royalist FUNCINPEC party headed by Prince Ranariddh. Relations between the two parties had been deteriorating for a long time. 177 The royalist FUNCINPEC was drawn closer to its former Khmer Rouge ally in their common resistance against CPP. The military forces of Cambodia were not united under government control. Different factions supported the two ruling parties. Therefore, the accommodation of Khmer Rouge troops into the army ranks was not just a strategy of neutralizing the Khmer Rouge, but was used a means in the power struggle between the two parties. In 1997, Ranariddh tried to build military support by striking a deal with Ta Mok. 178 By integrating the forces Ta Mok controlled into military units loyal to FUNCINPEC, Ranariddh could have served a severe blow to CPP and Hun Sen. To prevent FUNCINPEC from allying itself with Khmer Rouge forces, Hun Sen ousted FUNCINPEC leader Ranariddh in a coup, and Ranariddh fled to France. 179 The struggle in Phnom Penh in early July 1997 was bloody. More than 50 FUNCINPEC followers were killed, and the country was once more on the verge of civil war. 180 FUNCINPEC’s foreign minister Ung Huot replaced Ranariddh as prime minister. Ung Huot avoided conflict with Hun Sen by accepting his dominance in the government. 181 Since the elections of 1998, Hun Sen has been the only prime minister of Cambodia, and has gained increasing control over Cambodian politics.

The 1997 letter requesting a trial was written before the coup and was signed by both Prime Ministers. Chandler argues that the intent was to put pressure on those forces in Thailand who supported the Khmer Rouge. Thailand had for a long time been central to the survival of the Khmer Rouge, and elements of the Thai army still protected the group. 182 At the same time, in late June 1997, US Secretary of State Madeleine Albright exerted diplomatic pressure on Thailand to extradite Pol Pot so

177 Berfield, Susan and Dominic Faulder 1997. “Hun Sen’s ‘coup’”, Asiaweek 18 July. 178 Chandler 2000: 79. 179 Chandler 2000: 79. 180 Berfield and Faulder 1997. 181 Roberts, David 2002. “Democratization, Elite Transition and Violence in Cambodia, 1991-1999”, Critical Asian Studies 34 (4): 520-538, pp. 530-31. 182 Chandler 2000: 74, 80. See also Adams, Brad 2002. “Justice for Khmer Rouge crimes is there for the taking”, Phnom Penh Post . 62

he could be prosecuted for genocide in Canada. 183 According to Adams, Hun Sen would have preferred to see Pol Pot and the other Khmer Rouge leaders “disappear” rather than being prosecuted. 184 To make them disappear he needed Thailand’s help and he probably calculated that this would be in Thailand’s interest, since it had provided the Khmer Rouge with a safe haven for many years, and could expect unpleasant focus in a trial. Adams writes that on 21 June 1997, the same date that Hun Sen signed the letter requesting UN assistance to conduct a trial, he also asked Thailand’s prime minister to allow the Khmer Rouge leaders to disappear, making a trial impossible. However, because of the US interest in the Khmer Rouge leaders, it was not tempting for Thailand to meet Hun Sen’s request.

If a disappearance was impossible, Hun Sen wanted to use a trial to neutralise the Khmer Rouge. 185 Also, if Ranariddh could be given a role in capturing Pol Pot, this would have strengthened his position before the 1998 elections. Hun Sen needed to avoid this to happen. Hun Sen was probably more eager than Ranariddh to have a trial, as Ranariddh was allying with Khmer Rouge at the time. It is less clear why Ranariddh signed the letter, but the reason is probably that it could enhance his legitimacy before the 1998 elections. It would have been politically troublesome for him if Hun Sen were seen to support the idea of an international tribunal alone. Both parties’ relations to the Khmer Rouge trial were affected by their struggle against each other. If Hun Sen was able to weaken or accommodate the Khmer Rouge into the army ranks he controlled, by threatening the Khmer Rouge with the alternative of a trial, this would also strengthen his position vis-à-vis FUNCINPEC, since there was a growing alliance between FUNCINPEC and Khmer Rouge forces. Ranariddh could not avoid signing the 1997 letter, since this would have given Hun Sen sole credit for fighting against the Khmer Rouge. Thus, for both parties, to avoid strengthening the opponent, it was important to express support for a UN-supported trial.

183 Becker, Elizabeth 1997. “U.S., other nations seek extradition of Pol Pot to Canada”, New York Times 22 June; CNN 1997. “U.S. seeks Canada’s help to extradite Pol Pot”. 23 June. 184 Adams 2002. 185 Adams 2002. 63

On 4 May 1998 the Phnom Penh based newspaper Cambodia Daily reported that Hun Sen said it would be up to the new National Assembly to be elected in July to decide how the Khmer Rouge leaders should be prosecuted. He said that the prosecution of Ta Mok, Khieu Samphan, Nuon Chea and Pol Pot 186 might take place in a national court. His statement seemed to indicate that he had changed position from his earlier support for an international trial. 187 On the next day government spokesmen denied that Hun Sen was backing away from supporting an international tribunal. Interestingly, the Secretary of State at the Ministry of Information, Khieu Kanharith, argued that an international tribunal would better serve the interest of a fair trial: “I think our vision is consistent. The top leaders must be tried outside the country …to avoid the politicizing of the issue.”188 At the same time, the government announced that holding the elections was the top priority, saying that there would be no trial of the Khmer Rouge until after the elections in July that year. 189

According to Adams, Hun Sen in May 1998 tried to find a way out of the Khmer Rouge trial issue, by again requesting the Thai Prime Minister Chuan Leekpai to make Ta Mok, Nuon Chea and Khieu Samphan disappear. Pol Pot had died in April. Hun Sen told the Thai Prime minister that the leaders would never defect: “I feel that those three leaders will never give themselves up under any condition. If they can find refuge somewhere that no one can find them, it would be the best solution.”190 Chuan was not interested in meeting Hun Sen’s request. 191 Adams argues that this shows how Hun Sen never really wanted a trial for the Khmer Rouge leaders. “There can be no greater evidence of Hun Sen’s lack of good faith than his attempts to make the Khmer Rouge disappear, either literally or figuratively, instead of standing trial for crimes that Hun Sen himself has repeatedly compared to those of the Nazis.”192 On the other hand, this can also be seen as a sign that Hun Sen did not believe in the

186 Pol Pot’s death in April 1998 was not yet confirmed. 187 Cambodia Daily 1998. “KR Trial Up to Poll Winners”. 4 May. 188 Cambodia Daily 1998. “Officials Deny Shift in Policy By Hun Sen on KR Tribunal”. 5 May. 189 Cambodia Daily 1998. “Officials Deny Shift in Policy By Hun Sen on KR Tribunal”. 5 May; Cambodia Daily 1998. “No Tribunal, Gov’t Insists, Until After July Elections”. 8 May. 190 Quoted in Adams 2002. 191 Adams 2002. 192 Adams 2002. 64

possibility of a trial, and this illuminates the dilemma Hun Sen was facing. If the Khmer Rouge leaders would not give themselves up, they might defend themselves militarily, and threaten the newly won stability in Cambodia.

Officially, Hun Sen still argued for an international tribunal. In an interview given to Asiaweek’s correspondent Dominic Faulder on 29 May 1998, he said: “I would like the tribunal to be international. Even though the trial would be held in Cambodia, the court should be composed of international judges because genocide is an issue of the world […] To me, any type of trial should be international.”193

Although the Cambodian government by May 1998 still officially supported the idea of an international tribunal, a point of divergence between the UN and Cambodia can be traced back to that time: They disagreed on the number of people to prosecute. While the UN experts suggested that between 20 and 30 Khmer Rouge officials should face trial, the Cambodian government spoke only of Ta Mok, Khieu Samphan and Nuon Chea. 194 The USA exerted diplomatic pressure on the Cambodian government to cast the net wider, and to include a person like Ke Pauk (now dead), who only a week earlier had defected to the government. 195 This is one of the first indications that the government intended only to prosecute those leaders who did not defect voluntarily.

On 25 December 1998 the two Khmer Rouge top leaders Khieu Samphan and Nuon Chea surrendered. In return for their defections, they requested to be allowed to live as ordinary citizens. 196 Khieu Samphan declared his support for the new political direction of Cambodia, by stating that “it is the implementation of this political platform that will strengthen and expand national reconciliation, peace, and stability in our Cambodia within the subsequent framework of liberal multiparty democracy”.197 Nuon Chea stated that he wanted to “contribute to consolidating peace, stability, and national reconciliation, and also to develop our beloved

193 Faulder, Dominic 1998a. “‘I will leave if I lose’. Some conciliatory words from the Second PM”, Asiaweek 12 June. 194 Cambodia Daily 1998. “No Tribunal, Gov’t Insists, Until After July Elections”. 8 May. 195 Cambodia Daily 1998. “No Tribunal, Gov’t Insists, Until After July Elections”. 8 May. 196 BBC News 1998. “Letters of surrender – full text”. 26 December. 65

Cambodia”.198 In reply to this, Hun Sen gave his warmest welcome to the two men he had fought against for such a long time, appreciated their contribution to end the war, and wished them “the five Buddhist blessings of longevity, social prestige, happiness, strength, and enlightenment”.199

Shortly afterwards, Hun Sen abandoned the position that there should be an international trial, “bringing those responsible to justice”.200 Hun Sen now instead recommended Cambodians to “dig a hole and bury the past”.201 A trial of Khieu Samphan and Nuon Chea would not be in the national interest. However, King Sihanouk refused to grant them the Royal Pardon Hun Sen asked for. 202 Later, Hun Sen had to clarify his views and stated that it was up to the courts to decide if the two Khmer Rouge leaders should face trial. 203

Hun Sen’s next move was to state renewed support for the idea of a trial, including Nuon Chea and Khieu Samphan, but at the same time arguing that the international supporters of the Khmer Rouge should also face trial, and that it should cover the years from 1970 until 1998. 204 This would, of course, be politically impossible. Hun Sen must have known that his suggestion would be rejected by the UN and opposed by the USA. The statement can only be understood as a tactical maneuver before negotiations with the UN were to begin. 205 Hun Sen now began to argue openly that a trial had to take place in Cambodia. 206

The highest ranking Khmer Rouge who had still not defected by the end of 1998 was Ta Mok. He was captured and imprisoned on 6 March 1999. Some days earlier, the USA had urged Thailand to capture him, but Hun Sen denied that there was any relationship between the arrest of Ta Mok and Madeleine Albright’s visit to Thailand:

197 BBC News 1998. “Letters of surrender – full text”. 26 December. 198 BBC News 1998. “Letters of surrender – full text”. 26 December. 199 BBC News 1998. “Letters of surrender – full text”. 26 December. 200 1997 Letter . 201 BBC News 1998. “UN dismay at Khmer Rouge immunity”. 29 December. 202 BBC News 1998. “King rejects amnesty”. 30 December. The amnesties Nuon Chea and Khieu Samphan have enjoyed have therefore been de facto . The only one who has enjoyed a Royal Pardon is Ieng Sary. 203 BBC News 1999. “Hun Sen: Khmer Rouge trial up to courts”. 1 January. 204 BBC News 1999. “Hun Sen Backs Khmer Rouge trial”. 17 January. 205 BBC News 1999. “Cambodia genocide definition rejected ”. 21 January. 206 BBC News 1999. “Hun Sen Backs Khmer Rouge trial”. 17 January. 66

“It was not pressure or influence from any other countries on the policy of Cambodia that put an end to the problem of the Khmer Rouge or caused the arrest of the Khmer Rouge leaders.”207 After the capture of Ta Mok, Hun Sen made it clear that he had struck no deal with him, and that a trial could be held of Ta Mok alone. 208

This statement shows that a purely national court would have targeted only those Khmer Rouge leaders who had not defected voluntarily. The purpose of the trial would be to punish an enemy, not to provide justice. The question of who to prosecute should, naturally, be up to the prosecutors of the court, not to the government or the Prime Minister. Thus, by naming who to prosecute, Hun Sen revealed his will to influence the trial. Although it was not controversial to suggest that Ta Mok should be prosecuted, the fact that a prime minister made such a statement violated the principle of judicial independence. Director of the Cambodian human rights NGO LICADHO , Kek Galabru, has been deeply concerned about the independence of the trial: “[T]he Cambodian government tried to control the tribunal declaring that only three to five former Khmer Rouge leaders would face a trial […] These tasks should be the duty of the tribunal, not the role of the government.”209

More ambiguous statements about the trial came in early 1999, when Hun Sen also argued that he preferred a truth commission modeled after the South African example. 210 By the time the negotiations between the UN and Cambodia started it was clear that the Cambodian government would not accept an international tribunal. 211 The argument was that the Cambodian constitution did not permit the extradition of Cambodians to face prosecution abroad. Consequently, when the negotiations between the UN and Cambodia started in 1999, the possibility of an

207 Faulder, Dominic 1999b. “Hun Sen Moves Ahead”, Asiaweek 21 May. 208 BBC News 1999. “Cambodia rejects international Khmer Rouge trial”. 13 March. 209 Kek Galabru 2000. “Can the Cambodian People Trust the Government?”, The Advocacy Project 13 (3). 210 BBC News 1999. “The ‘Butcher’ to stand trial”. 7 March. 211 BBC News 1999. “Cambodia rejects international Khmer Rouge trial”. 13 March. 67

international tribunal was ruled out by the Cambodian government. 212 The theme of negotiations, therefore, was narrowed down to the composition of a mixed court. 213

Between 21 June 1997 and March 1999, Hun Sen had gained power through a coup, leading Khmer Rouge officers has defected and the group had collapsed, thousands of Khmer Rouge cadres had joined the military, high ranking Khmer Rouge had gained governmental or military positions, and Hun Sen had lost interest in an international tribunal. All the way, statements about the trial reflected political developments in Cambodia, both the struggle with the Khmer Rouge and the struggle between the CPP and FUNCINPEC. There is little doubt that a possible trial against the Khmer Rouge was always seen as a means in the political struggle. Although it is likely that Hun Sen really wanted a trial, the object was power, not justice. Head of legal department at the NGO Center for Social Development, Lao Mong Hay, writes: “Actually, politics has decided and dictated the process to try the Khmer Rouge right from the beginning, and the Nuremberg precedent is nowhere to be found.”214

Other considerations may also have affected Hun Sen’s attitude towards a trial. According to the historian scholar David Chandler, Hun Sen realized that some improvement on Cambodia’s human rights record would be helpful to achieve his political goals. “While resentful of foreign interference, Hun Sen realized that international assistance to Cambodia, and perhaps its admission to ASEAN, might be contingent on his record in the area of human rights.”215 For as long as Cambodia’s entry into ASEAN was postponed, Hun Sen kept the possibility of an international tribunal open. Chandler argues that when Cambodia was admitted into ASEAN after the 1998 elections, it was no longer necessary to declare support for an international trial, and Hun Sen began to argue against it. 216 He welcomed foreign assistance, but argued that foreign control would violate Cambodian sovereignty. 217 Kek Galabru doubts that the goal of the trial is to bring justice to the Cambodian people: “[I]s it

212 BBC News 1999. “Cambodia rejects international Khmer Rouge trial”. 13 March. 213 BBC News 1999. “UN seeks role in Cambodia trial”. 25 August. 214 Lao Mong Hay 2000. “Khmer Rouge Confessions Would be Better than a Flawed Trial”, The Advocacy Project 13 (3). 215 Chandler 2000: 78. 216 Chandler 2000: 80. 68

just a show trial for the international community, especially to appease the donors?” 218

China’s role should also be taken into account. It is impossible to establish exactly to what degree Hun Sen’s position has been determined by China’s opposition to a Khmer Rouge trial. 219 But two factors are clear: First, the Cambodian government’s ties to China have become increasingly close. Second, China is opposed to the idea of a trial against the Khmer Rouge, and even more so to an international tribunal. China’s UN ambassador made it clear in 1999 that Beijing opposed international interference in Cambodia’s internal matters. 220 In June 1999 the Chinese foreign minister is reported to have advised a Cambodian parliamentary delegation not to allow foreign involvement in a trial. 221 China would probably have vetoed a proposal for an international tribunal in the Security Council.

It is difficult to establish exactly the motives behind the request for a trial. In sum, however, several factors seem to have influenced Hun Sen’s willingness to discuss a trial against the Khmer Rouge. He used it as a means in a political struggle, both against the rival party FUNCINPEC and against Khmer Rouge itself. Moreover, Hun Sen probably saw this as a struggle for legitimacy before the 1998 elections, and as a way of improving Cambodia’s human rights record. 222 Last but not least, his rejection of an international solution may be influenced by China.

One question is how the political struggle has affected the process towards a trial. Another is the possibility of a politicized or politically controlled trial once the court is established. There are different views on the trial within the CPP. 223 Many within the CPP are in opposition to the trial, but of different reasons. Some oppose UN interference due to opposition to any kind of foreign interference in Cambodia. Another group opposes the trial because they believe it can be an obstacle to national

217 Chandler 2000: 69. 218 Kek 2000. 219 Chandler 2000: 78. 220 BBC News 1999. “China rejects Khmer Rouge trial”. 20 March. 221 BBC News 1999. “China advises Cambodia against outside involvement”. 25 June. 222 Adams 2002. 69

reconciliation. A third group, which is of particular interest here, are worried that there are too many skeletons in CPP’s closet that can be revealed in a fair, free and independent trial.

First and foremost, the CPP leadership probably fears revelations that affect Hun Sen or other CPP leaders personally. 224 Until his defection to Vietnam in 1977, Hun Sen had been a Khmer Rouge member for ten years. Moreover, they probably do not like that a trial will target those Khmer Rouge members who are now their allies in government and the military. A way of solving this is to confine the jurisdiction in the trial very carefully, as to only include a very few leaders, thus letting larger numbers, including Hun Sen and other high ranking CPP members, feel safe from prosecution or unpleasant revelations. Hun Sen has already revealed his will to influence the scope of the trial by naming a few candidates for prosecution. 225

Ok Sereiy Sopheak, a former researcher at the Cambodia Development Resource Institute , who now works as an independent consultant for the government and NGOs, argues that the government wants the trial to have a very limited agenda, focusing only on a small number of Khmer Rouge leaders, due to the fear of revelations about the CPP leadership, especially those leaders who have been Khmer Rouge members. The CPP leadership may fear an autonomous court which has its own dynamics. 226 This view is supported by researcher Laura McGrew, who writes that “there was growing opposition from the Cambodian establishment to opening the dark period of Khmer Rouge rule up to public scrutiny. Many of its leading members

223 Etcheson 2000a. 224 Prosecutions would not affect Hun Sen directly, but could open a Pandora’s Box of revelations about the past. 225 A parallel may be drawn to the dilemmas of denazification in Germany. Many Khmer Rouges received an informal amnesty, and their administrative or military experience and discipline was useful for the new government in Phnom Penh. Therefore, there were no process resembling ‘denazification’ in Cambodia. Chandler 2000: 73. Moreover, the Vietnamese- installed government in Phnom Penh was to a large degree made up of defectors who had been members of the Khmer Rouge for several years. In Germany, the initial plans for lustration would affect hundreds of thousands of officials that retained their positions after the fall of the Nazis. However, the far-reaching aim of the denazification proved impossible to fulfill, and did not gain popular support in Germany, since a large part of the German population identified with the policies of the NSDAP in some way or another. See Vollnhals, Clemens 1998. “Denazification in the Western Zones. The Failed Experiment” in Stein Uglevik Larsen (ed.) and Bernt Hagtvet (assistant ed.), Modern Europe After Facism. 1943- 1980s. New York: Columbia University Press. A more current example of this problem is IRAQ, where the “debathification” has proved to be an enormous mistake. In Cambodia, a process of “cleansing” or “lustration” of the civil service, judiciary, military and even government apparatus would be practically impossible. It is no coincidence that the trial will target only a few top leaders of the Khmer Rouge. 226 Ok 2004, interview with author. 70

– even Hun Sen – had held positions of responsibility in the Khmer Rouge before breaking ranks in the late 1970s”.227

On the other hand, there are reasons why CPP members actually want a trial. Some believe that a trial will have many positive side effects, such as international credibility. Moreover, to conduct a trial would be a final revenge over the Khmer Rouge, and it could legitimize CPP’s role in Cambodia’s history. Finally, a trial may have domestic benefits, such as developing the rule of law culture. 228 Hun Sen’s role is to balance these considerations, and also protect his own person and his closest allies from being affected by an overly eager prosecutor. But the latter of these factors – development of rule of law – might also be the reason why Hun Sen and many government members are afraid of an independent and well-functioning trial. They do not want to see that the trial becomes an example of a proper judicial procedure and consequently a basis from which the rule of law culture can develop. Ok Sereiy Sopheak explains that the current leadership in Cambodia fears that the Khmer Rouge trial, the most famous criminal case in Cambodian history, could further the development of the rule of law, based on international standards of justice. Civil society actors may see the Khmer Rouge trial as an approach to judicial reform. This would be worrisome for the current leadership.229

The political climate in which the issue of a Khmer Rouge trial has been raised is certainly not favorable for the fairness and independence of the judicial process. To understand to what degree these unfavorable political circumstances may influence the conduction of a future trial, and not only the process leading up to its establishment, one has to take into consideration the lack of rule of law in Cambodia.

3.3 The weaknesses of the Cambodian legal system The Cambodian judiciary is heavily affected by the poverty of the country and by the acute lack of trained people, including lawyers, after the anti-intellectual purges of

227 McGrew, Laura 2000. “Voices of Cambodia: Calling the Khmer Rouge to Account”, The Advocacy Project 13 (9). 228 Etcheson 2000a. 71

the Khmer Rouge regime. The Cambodian judiciary was completely destroyed during the Khmer Rouge, and it was not properly restored after 1979. “When courts were reestablished in the mid-1980s, they lacked prestige, funding, independence and well- trained personnel. These shortcomings were nothing new: they had characterized the Cambodian judiciary throughout its history.”230 Although Cambodia has received huge sums of foreign aid, and one of the most comprehensive UN efforts ever, the country is still one of the poorest in Asia, and the judicial system suffers both from lack of resources an trained people, and from the communist judicial culture which still influences the thinking of most of the country’s lawyers and politicians.

The weak, corrupt and malfunctioning court system, the underdeveloped legal culture and the impunity for human rights violations are among the most serious human rights problems in Cambodia. This is highlighted in various UN reports, and in statements from NGOs such as Amnesty International and Human Rights Watch. 231 The judiciary is constantly under political influence or control. Judicial decisions are made arbitrarily, standards of due process are not respected, and everyone is not treated equally before the law. 232 In the Amnesty International Report on Cambodia for the year 2003, the following description is given: “The combination of poor facilities, low salaries, executive interference, lack of education and training, and weak and poorly enforced legislation has created a judicial system in which people have no confidence and which daily fails in its duties and responsibilities.”233 A World Bank report from 2001 states that the legal system is in desperate need for reform at all levels. “In Cambodia […] the judiciary is severely depleted, and lacks both credibility and the capacity to assume its new role as arbiter of rights in a rule- based environment. Of the 120 or so judges who form the Judiciary, only a handful of

229 Ok 2004, interview with author. 230 Chandler 2000: 74. 231 See: Amnesty International 2003a. Cambodia (Amnesty International Report 2003); Amnesty International 2002. Kingdom of Cambodia. Urgent need for Judicial Reform ; Human Rights Watch 2002. Cambodia: Khmer Rouge Tribunal Must Meet International Standards ; The United Nations 2002b. Situation of human rights in Cambodia. Note by the Secretary-General (A/57/230); The United Naions 2001. Situation of human rights in Cambodia. Note by the Secretary- General (A/56/209); The United Nations 2000. Situation of human rights in Cambodia. Report of the Special Representative of the Secretary General for human rights in Cambodia, Mr. Thomas Hammarberg, submitted in accordance with resolution 1999/76 (E/CN.4/2000/109). 232 UN 2002b (A/57/230): 2, 8. 233 Amnesty International 2003a. 72

them have any proper legal qualifications to speak of, and only one is a woman.”234 Moreover, the resources available for the judiciary are scarce, such as office facilities and material. 235

A well-functioning legal system is a costly affair, and is obviously hampered by the lack of resources. Still, the political will is also an important factor. The arbitrariness of rulings and the political influence over the courts cannot be explained by financial difficulties alone. Despite various statements that the government is working for judicial reform, the UN questions the government’s will to realize its promises. 236 There seems to be a fundamental lack of rule of law culture, and of political initiative to improve the situation. 237 Craig Etcheson describes the Cambodian legal culture as fundamentally different from the Western rule of law values. 238 The Cambodian leadership is not educated in this tradition, but rather in the Leninist school, where, as Etcheson describes, “the primacy of politics is the highest value”. 239 Director at the NGO Cambodia Defenders Project, Sok Sam Oeun, explains how party preferences are represented in different sectors of society: “All our police, all soldiers, all judges are partisan. The top positions are divided in quotas for the main political parties, nominated by the major political parties. That is why members of those institutions are pressed to be members of the ruling party.”240 There have been indications that the Cambodian government has tried to influence the appointment of the Cambodian judges to the Khmer Rouge trial, although this is formally the task of the Supreme Council of Magistracy. On 5 January 2001 Cambodia Daily reported that the Cambodian government had already drawn up a list of Cambodian judges and prosecutors to serve at the court. An anonymous government official confirmed that “[e]ven though the draft law says the Supreme Council has the right to appoint them, the government has already done so”. Moreover, in contrast to the recommendations

234 The World Bank 2001. Cambodia – Legal and Judicial Reform Project (PID10086), p. 2. 235 World Bank 2001:3. 236 UN 2002b (A/57/230): 8. 237 UN 2002b (A/57/230): 2-3. 238 Etcheson, Craig 2002. “Problems of Retribution and Reconciliation in Cambodia”, Paper presented at the conference Roads to Reconciliation . Bergen: Chr. Michelsen Institute, p. 6. 239 Etcheson 2002: 6. 240 Sok 2004, interview with author. 73

of Cambodian legal activists, the government official insisted that the Cambodian judges were well qualified: “There is no need to train them because all of them are experienced and already have the necessary knowledge.” 241

To argue that the Cambodian judiciary is unable to handle the Khmer Rouge trial in a qualified way is not controversial. In official documents relating to the Khmer Rouge trial, the government has repeatedly stated that they asked for international assistance because “we are all too acutely aware of the weaknesses in our judiciary”.242 Hun Sen has said that he understands the concern about international standards, and that this is the reason why the Cambodian government “initiated the idea that the process will be carried out by existing courts of law in Cambodia with the international community’s assistance”.243

The government does not explain what the weaknesses of the judiciary imply, but hints that it has to do with a lack of qualified personnel and resources, arguing that the weaknesses result “mainly from the blows inflicted on the entire Cambodian social fabric by the Khmer Rouge”.244 The political control over the judiciary, and the government’s intention to exercise it during a Khmer Rouge trial, is, naturally, more difficult for the government to admit and for others to document than more specific problems such as lack of resources or expertise. The obvious lack of these two latter factors make it possible to conclude that international assistance is a precondition for a fair trial, regardless of the political intentions concerning a trial. This relates to the requirement in the International Covenant on Civil and Political Rights of competence . As one of my interviewees underlined, even if there is no corruption, even if the judges were not under political control, their incompetence would still be a major problem to the trial.

241 Quoted in Cambodia Daily 2001. “Government Already Has List of KR Judges”. 5 January. 242 “Presentation by Senior Minister Sok An to the Conference on The Rule of Law and the Legacy of Conflict, Gabarone, Botswana”, 16-19 January 2003; “Remarks by H.E. Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia”, 6 June 2003. 243 Faulder 1999b. 244 “Statement by Senior Minister Sok An in New York at the conclusion of talks at the UN Headquarters”, 14 January 2003. 74

However, it is also important to establish that the Cambodian judiciary is likely to be under influence of political motives, because this has implications for the degree of international involvement that is required. Assistance with expertise or resources might be sufficient if these were the only shortcomings of the Cambodian judiciary. However, since a central problem is political control, and the government has already demonstrated its willingness to use it, more in depth international involvement must be considered a precondition for a fair trial if the requirements of independence and impartiality are to be met. The international involvement must be sufficiently strong to function as a safeguard against political influence over the trial.

3.4 Would Cambodian justice be victors’ justice? Gary Jonathan Bass argues that the term “victors’ justice” is uninformative. A war crimes trial will always be victors’ justice. “The question is not whether we are looking at victors’ justice […] But which victor? And what justice?” 245 He argues that the kind of justice you get in a war crimes trial depends on the domestic norms of the prosecuting state. “[T]he pursuit of war criminals can only be explained with reference to domestic political norms in liberal states.”246 An illiberal state, Bass argues, will only set up show trials that serve the purpose of punishment. 247 Bass develops this argument from a study of international trials, where one or more conquering states execute their justice on a defeated state. But the argument can also be used to illuminate the Cambodian case.

Not only is Cambodia a state where a culture of respect for the due process of law is lacking, and thus, according to Bass’ assumptions, is unlikely to conduct a trial that follows liberal, legalist norms. Hun Sen himself has stated that he perceives justice first and foremost as defeating the Khmer Rouge: “Justice for the Cambodian people first of all is to put an end to the political and military organization of the Khmer

245 Bass 2002: 16. 246 Bass 2000: 35. 247 Bass 2002: 35. 75

Rouge, put an end to the killing of the Cambodian people.”248 There is no doubt that neutralizing the Khmer Rouge as a violent opposition group was a great achievement, a task the UN mission or any other international actors were never able to fulfill. Under Hun Sen’s rule peace has finally come to Cambodia after three decades of war, genocide and unrest. Asiaweek’s correspondent Dominic Faulder writes: “Hun Sen’s dilemma is real. He must balance the material and security needs of 11 million living Cambodians against the rights of 1.7 million dead ones.”249 Moreover, Hun Sen is certainly right when he argues that the UN and the international community let the Khmer Rouge operate freely for more than twenty years before steps were taken to prosecute the Khmer Rouge leaders. The problem, however, is Hun Sen’s vision of legal remedies as a means of achieving political power, and his expressed intent to prosecute some Khmer Rouge leaders and not others. A trial was viewed as a final step in the battle against the Khmer Rouge.

Bass’ argument that a war crimes trial is always victors’ justice can be linked to Huntington’s claim that a trial can be conducted only when the transition results in a losing outgoing regime and a strong new government. If there is no victor, there will be no justice. A trial that reflects the balance of power and follows the political preferences of the government would be a trial operating according to realist assumptions. A trial will not be conducted if the realities of power politics does not allow for it. However, realism can not explain why some governments in some cases establish tribunals that operate according to due process of law. In these cases, the liberal ideas of the prosecuting state are influential. Sieff and Wright, studying the cases of Yugoslavia, Rwanda, Argentina and South Africa, argue that although the balance of power should not be understated, power alone cannot explain the occurrence of trials or how they are designed. The balance of power leaves some outcomes more likely than others, but other factors, such as pressure formed by advocacy networks and the goals of political leaders, also matter. 250

248 Faulder, Dominic 1999a. “Respect Our Sovereignty”, Asiaweek 26 November. 249 Faulder, Dominic 1999d. “Wide-Ranging Concern”, Asiaweek 19 March. 250 Sieff and Wright 1999: 760. 76

David A. Crocker asks: “Can ‘victors’ justice’ be avoided and legal standards applied impartially to both sides in a former conflict?” 251 Is there necessarily a contradiction between rule of law and victors’ justice? As is supported by the findings from Cambodia, trials after massive human rights abuses, genocide or war crimes, will always be politicized. The realities of power politics can never be omitted from an analysis of cases where one regime prosecutes the crimes of another. The question is rather if the victorious powers, after deciding to conduct a trial against their defeated foes, leave the outcome of the trial up to an independent and competent court, and to the uncertainty that a due process implies. As Bass writes: “It is victory that makes justice possible , but the fairness of the process is what makes it justice.” 252

Applied to Cambodia, the question is not whether the trial against the Khmer Rouge will be victors’ justice. It will. The Khmer Rouge will not be represented on the prosecuting side, and crimes committed by other sides in the Cambodian conflict, such as Vietnam and the USA, will not be addressed. The question is rather what kind of victors’ justice the trial will be. The domestic norms in Cambodia are not those of a legalist culture. Therefore, pressure must be exerted on the Cambodian government to act in accordance with international standards of justice. The kind of victors’ justice executed in Cambodia will depend on the degree to which the international involvement is able to positively influence the Cambodian government. To understand the mechanisms through which such norm change may occur, Risse’s theory may be useful.

3.5 The request for a trial in a theoretical perspective A central theme of this chapter has been the background for the request for a trial. Can it be understood in Risse’s terms? Risse argues that policy change comes as a response to pressure. When a trial was requested in 1997, the US had adopted the Cambodian Genocide Justice Act , and UN human rights envoy Thomas Hammarberg

251 Crocker, 1999:56. “Rule of law”, according to Crocker, “includes respect for due process, in the sense of procedural fairness, publicity, and impartiality. Like cases must be treated alike, and private revenge must be prohibited”. 252 Bass 2002: 329. 77

was pursuing the possibility of a trial. As the former Australian ambassador to Cambodia writes, the 1997 letter was signed “[f]ollowing intense Western diplomatic pressure on both premiers to commit themselves to prosecute Khmer Rouge leaders”. 253 Cambodian NGOs had for some time been requesting a trial. The Documentation Center of Cambodia had since 1995 been operating to gather evidence that can be used in prosecutions. Several actors worked to influence the Cambodian government to establish a trial. But was the initiative for a trial a response to that pressure? Or was it rather a manoeuvre in the battle against the Khmer Rouge?

As explained in chapter 3.2, it is difficult to establish exactly the weight of the various motives behind Hun Sen’s request for a trial. It is, however, likely that a mixture of pressure and realist motives affected Hun Sen to request a trial. Although realist motives were at play, Risse’s theory is still applicable. “In fact, the process of human rights change almost always begins with some instrumentally or strategically motivated adaptation by national governments to growing domestic and transnational pressures. But we also argue that this is rarely the end of the story.”254

According to Risse and the constructivist argument, Hun Sen may well ask for a trial for instrumentalist reasons. But in time, if the pressure on him is sufficiently strong, he will be engaged in a discourse of human rights norms. Eventually, he might look at the issue from another perspective, and his interests may change. Even if there is no evidence for this for a long period of time, continuous pressure may open up opportunities for human rights networks, generate some improvement in the field, and finally the stage of norm-internalization may be reached.

Elin Skaar and Bård-Anders Andreassen argue that four central factors can explain the establishment of trials of human rights violations of a former regime. First, a demand for truth or justice, set forth by international and national actors. Second, there must be political will to conduct a trial. Third, there must be political capacity to conduct a trial, which is largely determined by the fourth factor: the nature of the

253 Kevin, Tony 2000. “United Nations-Cambodia dispute approaches an honourable resolution”, Phnom Penh Post 17-30 March. 78

regime change. 255 The two latter factors resemble Huntington’s argument about the transition. The second factor, political will, can be linked to Bass’ emphasis on the importance of liberalist ideas. The first factor, societal pressure, supports Risse’s theoretical argument about the influence of pressure groups. In this way, both the realist emphasis on power relations, and the constructivist emphasis on political pressure and norms can be necessary to understand the complex process leading up to a trial. In Cambodia, all four factors Skaar and Andreassen point out have played a part. Pressure was exerted both from international organizations, individual countries and domestic civil society actors. Political will has taken the form of Hun Sen’s wish to defeat the Khmer Rouge, and to use the trial for that purpose. The political capacity to prosecute and the nature of the transition have certainly marked the politics of seeking to make the Khmer Rouge leaders accountable for their crimes.

3.6 Summary This chapter has shown that the nature of the transition, more specifically the deals the Khmer Rouge leaders struck with the government in the late 1990s, affects the political will to treat the Khmer Rouge leaders equally. Moreover, this chapter has shown how the request for a trial has been used as a tool in a political power play. Together, these factors affect the likelihood of an independent and impartial trial, since the Khmer Rouge leaders would most likely be treated differently, according to the political preferences of the government. The likelihood of an independent trial is further reduced by the lack of a rule of law culture. Judges in Cambodia are under constant political influence, and there is no culture of judicial independence. Finally, due to the lack of resources and expertise, even the Cambodian government has officially recognized the need for international assistance to meet international standards of justice. The concluding argument in this chapter is that an involvement

254 Risse and Sikkink 1999: 10. 255 Skaar and Andreassen 1998: 27-32. In the article “Truth Commissions, Trials – or nothing? Policy options in democratic transitions”, Elin Skaar investigates empirical evidence from 30 countries, and finds that the governments’ policy choices depend on “the relative strength of the public’s demand for truth and justice, and the outgoing regime’s demand for amnesty and impunity”. Skaar, Elin 1999. “Truth commissions, trials – or nothing? Policy options in democratic transitions”, Third World Quarterly 20 (6): 1109-1128, p. 1109. 79

that functions as a safeguard against political influence is required if the conditions of impartiality and independence are to be guaranteed. In the next chapter, I discuss whether the agreement reached between Cambodia and the UN in March 2003 can ensure that international standards of justice will be met in a forthcoming trial.

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4. Did the UN prejudice international standards of justice?

On 17 March 2003 the UN and Cambodia concluded the Agreement on establishing a trial against the Khmer Rouge. The Agreement was signed by both parties in June that year. On 4 October 2004 the Agreement was ratified by the Cambodian National Assembly. The problems with the Cambodian legal system are many-faceted, and the previous chapter concluded that UN participation is a precondition for a fair trial in Cambodia. However, central points of the Agreement diverge from the original recommendations of UN experts and the Secretary General. Does the Agreement represent a remedy to the problems outlined in the previous chapter, or did the UN prejudice international standards of justice when concluding the Agreement with Cambodia in 2003?

Before discussing the quality of the Agreement, this chapter will give a brief outline of the main conclusions of the UN experts that evaluated the potential for a trial in Cambodia, as well as a description of the main points of dispute between the two parties during the negotiations.

4.1 The UN experts’ recommendation: an international tribunal In late 1998 the UN sent a group of experts to Cambodia, whose task was to investigate the possible means of justice. Their report was published in March 1999. They argued that the Cambodian judiciary lacked three vital prerequisites for fair and free trials: First, a trained cadre of judges, lawyers and investigators; second, adequate infrastructure; and third and most seriously, a culture of respect for due process of law. 256 The group concluded: “In sum, Cambodia's system falls far short of international standards of criminal justice established in the International Covenant

256 Report art. 126-129. 81

on Civil and Political Rights and other instruments.”257 Despite being “keenly aware of the advantages of organizing a trial under Cambodian law”, 258 they recommended the establishment of an ad hoc tribunal similar to that of Yugoslavia and Rwanda. Convinced that Cambodia did not have the capabilities, nor the necessary legal culture to carry out such trials, they also recommended against a mixed Cambodian- foreign court, since “even such a process would be subject to manipulation by political forces in Cambodia”. 259

The conclusions of the group of experts were commented by Kofi Annan: “I am firmly of the view that if the international standards of justice, fairness and the process of law are to be met in holding those who have committed such serious crimes accountable, the tribunal in question must be international in character.” With this somewhat ambiguous statement the Secretary General opened up for a solution that is not purely international, it only needed to be “international in character”. The Secretary General made it clear that the trial against the Khmer Rouge did not necessarily have to be ”modelled after either of the existing ad hoc tribunals or be linked to them institutionally, administratively or financially”. The requirements for a trial to be “international in character” were not specified by the Secretary General. 260

The request by the UN experts, and other international actors, should be seen in light of the international support for the Khmer Rouge during and after the group’s rule in Cambodia. The Khmer Rouge represented Cambodia in the UN, alone or in coalition with other groups, until 1992. The USA, who has requested a trial since 1994, supported the Khmer Rouge indirectly, and so did many other Western and Asian countries. How can these same actors legitimately require an international tribunal after so many years of support for the Khmer Rouge? Although prosecution of the Khmer Rouge has been US policy since 1994, real requests for a trial by these actors have come only after the Khmer Rouge began to disintegrate. The international actors have never been willing to conduct a trial at a time when this would have required an

257 Report art. 129. 258 Report art. 132. 259 Report art. 137. 82

international military operation, or would otherwise be against their geopolitical interests in the region. This has been pointed to by the Cambodian government during the negotiations, when rejecting the proposal of a purely international tribunal. 261 The international neglect of the Cambodian people’s right to see the Khmer Rouge brought to justice does not justify a substandard trial held by the Cambodian government alone. Quite to the contrary. The delay of this process makes it pertinent that the trial that finally comes about is conducted according to high standards of justice. However, it is impossible to discuss the demands of the various international actors without their previous failure to prosecute the Khmer Rouge in mind.

4.2 The negotiations On 21 June 1997 the Cambodian co-prime ministers Ranariddh and Hun Sen in a letter to Kofi Annan called for UN and international assistance in bringing to justice those responsible for the crimes of the Khmer Rouge. 262 In response to this letter the UN General Assembly requested the Secretary General to examine the possibility of appointing a group of experts “and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability”.263 Only days before the recommendations of the Group of Experts were to be published, the Cambodian foreign minister officially rejected the possibility of an international tribunal. 264 In effect, negotiations between Cambodia and the UN were over the formula of a mixed court. There is no clear definition of a mixed court in terms of international versus national participation. Clearly, both sides have to be substantially represented, but not necessarily to an equal degree concerning judges, prosecutors, lawyers, resources and applicable law. The negotiations in Cambodia therefore concerned the balance between the international and national components of a court. The Cambodian government wanted a

260 Report , Preamble. 261 “Statement by Senior Minister Sok An, at the Stockholm International Forum”, 23-24 April 2002. 262 1997 Letter . 263 The United Nations 1998. Situation of human rights in Cambodia. Resolution adopted by the General Assembly (A/RES/52/135). 264 Becker, Elizabeth 1999. “Cambodia Spurns U.N. Plan for Khmer Rouge Tribunal”, New York Times 13 March. 83

Cambodian majority in the court. The UN, for its part, was concerned that this would lead to a process without sufficient guarantees for international standards.

Several rounds of negotiations were conducted from August 1999 through 2000 and 2001. The UN delegation was first headed by Ralph Zacklin, assistant to the Under Secretary General for legal affairs Hans Corell, and from 2000 by Hans Corell himself. The Secretary General Kofi Annan was directly involved in talks with the Cambodian government on several occasions during this period. The head of negotiations for the Cambodian government was Senior Minister Sok An.

While the negotiations were going on, the Cambodian government drafted a law on the Khmer Rouge trial. The UN Secretary General and the UN negotiating team had several objections against this law. In July 2001, the Cambodian National Assembly adopted it under the name Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea .265 The UN was not content with the Law, or the fact that it was adopted before an agreement had been reached between the UN and Cambodia. Out of many issues at dispute between the two parties, two were particularly hard to solve. First, the question of the control of the legal process. Hans Corell argued that any agreement between the UN and Cambodia should have legal precedence over the Law. Corell has explained: “Because the domestic law could be changed by the parliament at any time, there would be no guarantees against delays or political influence.”266 Sok An, on the other side, argued: “While the Articles of Cooperation may clarify certain nuances in the Law, and elaborate certain details, it is not possible for them to modify, let alone prevail over, a law that has just been promulgated.”267 The Cambodian government would not let any agreement with the UN prevail over Cambodian law, and this issue, which is basically about controlling the process, was at the core of the disagreement between the two parties by the end of 2001.

265 The same law is referred to in chapter 2.4. 266 Corell, Hans 2002. “No Justice for Victims of the Khmer Rouge”, International Herald Tribune 19 June. 84

The composition and nomination of the group of judges and other legal personnel was also a constant matter of dispute. The UN wanted a majority of international judges, appointed by the Secretary General. The Cambodian government on its side, referred to the principle of national sovereignty, and demanded a majority of Cambodian judges. Since 1999, this issue had crystallized as particularly difficult.

The disagreement between the two parties reached its height on 8 February 2002, when the UN broke off the negotiations with Cambodia on the decision of the Secretary General. At a press briefing that same day, Fred Eckhard, spokesman for the Secretary General, gave two reasons for the withdrawal. First, the UN had concluded that “the Cambodian court would not guarantee independence, impartiality and objectivity”. Second, the Cambodian government had rejected that the UN assistance “will be governed by the agreement between the United Nations and Cambodia. Cambodia insists that only its own rules would govern such assistance”.268

At the press briefing, Hans Corell himself underlined the importance of the control of the trial. “It has been the United Nations consistent position that the Organization cannot be bound by a national law […] The question of Cambodia’s sovereignty is not at issue here.”269 Moreover, Corell held the Cambodian government responsible for the dispute, since the Law was adopted before an agreement with the UN was reached. It was clear that the differences between the parties could not easily be solved by some technical adjustments. And although the focus in February 2002 was on the control of the trial, the disagreement was tied to the worries within the UN team since the beginning of this process that the trial eventually would not meet fair trial requirements. In a comment in the International Herald Tribune , Corell gave the following explanation: “When, after a long negotiation process, it appeared that the UN was being asked to be part of a court that would fall short of necessary

267 “Letter to His Excellency Hans Corell, Under Secretary-General, and The Legal Counsel of the United Nations”, 23 November 2001. 268 “Daily Press Briefing by the Office of The Spokesman for the Secretary-General” 8 February 2002, published in ”Cambodia and the United Nations – Legal Documents”, Critical Asian Studies 34 (4): 611-621. 269 “Daily Press Briefing by the Office of The Spokesman for the Secretary-General” 8 February 2002. 85

international standards of independence, impartiality and objectivity, the secretary- general decided to end UN participation.”270

In reaction to the UN pullout, the Cambodian government announced that it would proceed with a trial with or without UN assistance, and that the door remained open to resume negotiations over the court. 271 Many of the UN member states were not only surprised, but also discontented with the decision to withdraw. 272 In a resolution dated 18 December 2002 the General Assembly requested Kofi Annan to resume negotiations with Cambodia. The request was to negotiate over the establishment of the Extraordinary Chambers, with jurisdiction consistent with the Law on the Establishment of the Extraordinary Chambers. 273 Thus, in the resolution requesting the Secretary General to conclude an agreement with Cambodia, the General Assembly accepted the Law as a framework for an agreement, the same law that had caused severe disagreements a year before. However, to “ensure that the impartiality and independence of the Extraordinary Chambers and the integrity and credibility of their proceedings were fully guaranteed”, the Secretary General found it necessary to propose amendments to previous drafts that had been discussed between the two parts, which would also imply amendments to the Law. 274 The most important were, first, that there should be one prosecutor and one investigating judge, both international. 275 Second, the Secretary General again proposed that a majority of the judges in both chambers should be international, appointed by the Secretary General and decisions should be made by a simple majority vote. 276 Third, the Secretary General raised the issue of international standards of justice, and suggested that the

270 Corell 2002. 271 “Statement from the announcement of UN pullout from negotiations on Khmer Rouge trial”, 12 February 2002. Also, the Cambodian government responded to the pullout by publishing their part of exchanges between the parties, documents that had previously been kept confidential. This makes it easier to understand the difficult nature of the negotiations, although the UN side of the correspondence is not available. 272 Jarvis, Helen 2002. “Trials and Tribulations: The Latest Twist in the Long Quest for Justice for the Cambodian Genocide”, Critical Asian Studies 34 (4): 607-610, p. 607. 273 The United Nations 2003b. Resolution adopted by the General Assembly. Khmer Rouge trials (A/RES/57/228), art. 1, 2. 274 The United Nations 2003a. Report of the Secretary-General on Khmer Rouge trials (A/57/769), art. 13. 275 UN 2003a (A/57/769) art. 16 (b), (c). 276 UN 2003a (A/57/769) art. 16 (c). 86

Extraordinary Chambers should operate in accordance with articles 14 and 15 of the International Covenant on Civil and Political Rights. 277

4.3 The Agreement In sum, several points of dispute emerged during the negotiations, some more difficult to solve than others. A guarantee for international standards of justice would clearly require an arrangement in accordance with the fair trial provisions in the International Covenant on Civil and Political Rights, and a guarantee against amendments to the court by the Cambodian National Assembly. Moreover, to guarantee for the independence and impartiality of the trial, possibilities of political influence must be reduced as much as possible. This is an essential point of the discussion, since the political influence over the judiciary is one of the gravest rule of law problems in Cambodia. Finally, to secure that the Cambodian government lives up to its obligations set out in the Agreement, there must be a possibility for the UN to exert pressure on the Cambodian government once the court is established.

4.3.1 The status of the Agreement The status of the Agreement of 17 March 2003 will be that of an international agreement, which implies, according to the Vienna Convention on the Law of the Treaties, that it must be performed in good faith, and that no internal legislation should justify failure to fulfil the treaty. Therefore, Cambodia is obliged to conform its national law to the agreement between the two parties. 278 Thus, one of the main obstacles to an agreement during the negotiations, that the cooperation between the parts may be subject to amendments in Cambodian national law, was solved. Kofi Annan describes the status of the Agreement as a significant improvement from previous draft solutions. 279 Still, the final stage of negotiations was conducted to reach an agreement in accordance with the already adopted Cambodian Law on the Establishment of the Extraordinary Chambers. The Law, which the UN negotiating

277 UN 2003a (A/57/769) art. 16 (d). 278 UN 2003a (A/57/769) art. 25. 87

team initially did not approve of, has now become the framework for the trial. Although the Agreement that regulates UN participation is not subordinate to Cambodian legislation, it is framed by it. At the same time, the Cambodian government cannot change the Law in a way that violates the Agreement. Thus, an important source of potential political influence had been removed, and this must be viewed as a major concession from the Cambodian side.

4.3.2 International standards of justice in the Agreement When concluding the March 2003 Agreement, reference to articles 14 and 15 of the Covenant on Civil and Political Rights was included. 280 These are the most central provisions of judicial standards in international law. UN Secretary General Kofi Annan has expressed content with this provision.281

Amnesty International and Human Rights Watch (HRW) have made several objections to the Agreement. Amnesty has argued that other articles of the Covenant should also be mentioned. 282 However, Cambodia is a party to the Covenant and is thereby bound by its entire text. Moreover, Amnesty has argued that the rights of victims and witnesses are not adequately protected, but both the Agreement and the Cambodian law states that the court “shall provide for the protection of victims and witnesses”. 283 Amnesty also wants the Extraordinary Chambers to “award all forms of reparations to victims and their families, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition”. 284 How this ambitious list of goal should be fulfilled is not mentioned in Amnesty’s report. Gregory H. Stanton, president of Genocide Watch, writes: “This all-or-none approach to justice for Cambodia has been characteristic of some human rights groups from the

279 UN 2003a (A/57/769) art. 24, 25. 280 UN 2003a (A/57/769) art. 26, 27, 49. 281 UN 2003a (A/57/769) art. 25. Art. 12 of the Agreement states that “The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party” . 282 Amnesty International 2003b. Kingdom of Cambodia. Amnesty International’s position and concerns regarding the proposed “Khmer Rouge” tribunal (ASA 23/005/2003), p. 5. 283 Agreement art. 23 and Law on the Establishment of the Extraordinary Chambers art. 33. 284 Amnesty International 2003b (ASA 23/005/2003): 9 88

beginning […] All-or-none standards are self-defeating. Perfection is the enemy of justice.” 285

HRW has made similar objections. 286 Amnesty and HRW would probably only approve of an international tribunal or a trial that was internationally controlled. After the concluding of the Agreement in 2003, the organizations recommended several amendments that, first, would require renewed negotiations, and second, would probably be unacceptable to the Cambodian government, and thus politically impossible. Taking into consideration the already long delay of this process, renewed negotiations would be extremely unfortunate. In reality, the suggestions of Amnesty and HRW would probably imply that there would never be any trial at all. These organizations have all the time been strong proponents of a purely international tribunal and have never really appreciated the importance of conducting a trial on Cambodian soil. Their strong criticism of the Agreement must be seen in light of this. 287

4.3.3 The dispute over judges: The super majority solution The Secretary General’s suggestion regarding the composition of personnel – that the majority should be international – was “firmly rejected” by the Cambodian part. 288 The previous chapter concluded that the UN involvement must be a safeguard against political influence if international standards of justice are to be guaranteed. The politicized nature of the judiciary in Cambodia makes the nationality, appointment and decision-making procedures of the judicial personnel an essential issue.

285 Stanton, Gregory H. 2003. ”Perfection is the Enemy of Justice: A Response to Amnesty International’s Critique of the Draft Agreement Between the U.N. and Cambodia”, The Truth, Magazine of the Documentation Center of Cambodia 2: 40- 42. 286 Human Rights Watch 2003. Serious Flaws: Why The U.N. General Assembly Should Require Changes to the Draft Khmer Rouge Tribunal Agreement. 287 Former Australian Ambassador to Australia, Tony Kevin, argues that Human Rights Watch is “more interested in discrediting Hun Sen internationally than in achieving internationally credible trials of surviving Khmer Rouge leaders”. Moreover, the Cambodian opposition Sam Rainsy Party has turned against the mixed trial. As HRW, the opposition does not want to see Hun Sen get credit from a trial. See Kevin, Tony 1999. “Rainsy and rights groups stymie KR trial”, Phnom Penh Post 1-14 October. 288 UN 2003a (A/57/769) art. 17. 89

The Secretary General expressed his concerns about the integrity of the Cambodian judges, due to the “little respect on the part of Cambodian courts for the most elementary features of the right to a fair trial”.289 Both the potential for political influence and the level of expertise among the Cambodian judges caused the UN to request a majority of international judges. In September 2001 Thomas Hammarberg, former UN human rights envoy to Cambodia, expressed himself as follows: “Guarantees for international standards require watertight protection against the risk of direct or indirect political pressure.”290

The issue of judicial personnel has several sides. First, the nationality, nomination and decision-making procedure of the judges, and second, the number and working procedures of the prosecutors.

As mentioned above, the UN wanted a majority of the judges to be international, and all judges, including the Cambodian, to be appointed by the Secretary General. This would widen the pool of Cambodian candidates considerably, as it would not be restricted to the practicing judges within the Cambodian court system today. In addition, the UN suggested a simple majority decision-making procedure. Such a formula would effectively leave the UN-appointed personnel in control of the process. Considering the position held by the Cambodian government when negotiations started – the rejection of an international tribunal – it is not surprising that the UN suggestion was turned down by the Cambodian government. The compromise reached between the two parties regarding the judges is the so-called “super majority” formula. Cambodian judges will be in majority, but decisions by the judges require a qualified majority. The Cambodian judges cannot reach decisions without the affirmative vote from an international judge. The international judges will be appointed by Cambodian Supreme council of the Magistracy, but nominated by the Secretary General. In effect, this leaves the UN more or less in control of the appointment of the international judges. Regarding the Cambodian judges, however,

289 UN 2003a (A/57/769) art. 28. 290 Hammarberg, Thomas 2001. “Efforts to establish a tribunal against KR leaders: discussions between the Cambodian government and the UN”, Phnom Penh Post (supplement) 14-27 September, p. 8. 90

the UN will not have any influence. This implies that the Supreme Council of Magistracy is free to appoint politicized or incompetent judges. The Supreme Council has been characterized as highly politicized and ineffective body by Cambodian and international human rights organizations alike. 291

A trial could only be guaranteed to be independent and impartial if decision-making procedures prevented potentially politically influenced Cambodian judges from disrupting the process. The agreement finally reached cannot be said to provide such guarantees, firstly because the majority of judges are to be Cambodian, secondly because these judges will be appointed by the Supreme Council of Magistracy. Although the Cambodian judges need the vote of one international judge to reach a valid verdict, this is no guarantee that the trial will function properly. After the Agreement was concluded in March 2003, the Secretary General stated: “I would very much have preferred that the draft agreement provide for both of the Extraordinary Chambers to be composed of a majority of international judges.”292

Moreover, the Secretary General as well as Thomas Hammarberg, have criticized the super majority requirement as potentially divisive. Hammarberg writes: “The super majority notion […] carries an implicit notion of there being two categories of judges – which would be an unfortunate perception even in more normal circumstances.”293 The Cambodian government’s negotiator Sok An, on his side, has commented that the super majority formula “does not give control to one or other side, but rather seeks to lay the ground for a shared enterprise”.294 As long as there is one group of international judges, and one Cambodian, no guarantees can be made against a split into two “sides”. However, it is difficult to see how the proposal formulated by the UN, a majority of international judges and a simple majority decision-making

291 See Human Rights Watch 2004. Cambodia ; Human Rights Watch 2000. Letter to donors ; NGO Forum on Cambodia 2000. NGO Statement, 2000 Consultative Group Meeting on Cambodia . 292 UN 2003a (A/57/769) art. 29. 293 Hammarberg 2001: 8. 294 “Presentation by Senior Minister Sok An to the Conference on The Rule of Law and the Legacy of Conflict, Gabarone, Botswana”, 16-19 January 2003. 91

procedure, could be less dividing than the super majority formula. As underlined by Sok An, at least now the judges have to cooperate to reach decisions. 295

The Secretary General wanted one prosecuting judge and one investigating judge only, both international. The Agreement decides that there shall be two co- prosecutors, one international and one Cambodian. This also applies to the investigating judges. The Secretary General initially rejected this solution as inefficient because it can create delays in case of a disagreement between the two prosecutors. When it became clear that the Cambodian government demanded a Cambodian co-prosecutor, the UN suggested that the two should operate independently. Thus, the international prosecutor could proceed with cases without support from the Cambodian prosecutor. The Cambodian government, on its side, suggested that both prosecutors had to agree for a trial to proceed. In other words, one of them could block further prosecutions, and if the Cambodian government wanted to impede the prosecutions, it would be enough to influence this one prosecutor. The solution, as it finally came about, was proposed by the US Senator John F. Kerry in April 2000. It implies that a disagreement between the two prosecutors would send the case to a pre-trial chamber, where a confirmation by a super majority is needed to uphold the dismissal of a case. Basically, an international vote is needed in order to prevent a case from proceeding. Thus, it will be far more difficult for the Cambodian government to block a case by interfering with the prosecutor. The Cambodian government has characterized this as a major compromise. 296 However, the possibility of problematic delays due to disagreements between the prosecutors remains, since the pre-trial chamber is likely to be a time-consuming process. More than seven years have passed since a trial was first requested by the Cambodian

295 There is also a possibility that other dividing lines than “international versus Cambodian” will arise among the judges. If the government coalition parties CPP and FUNCINPEC both have influence over the appointment of judges, it is thinkable that in some cases, the international judges may be in agreement with CPP-friendly judges, and in other cases with judges loyal to FUNCINPEC. Thus, the Cambodian judges may not operate unified, even if instructed by government officials. It is very clear that the two parties have different relations to the Khmer Rouge. FUNCINPEC was for a long time the ally of Khmer Rouge in their fight against the Vietnamese puppet government and CPP. CPP, on its side, has since the late 1990s managed to integrate many Khmer Rouge defectors into its ranks. The two parties may thus have diverging interests regarding who should be prosecuted, who should be spared, and which revelations should be prevented. By the time of writing it is not clear if a split between the Cambodian judges is likely, but this possibility should not be disregarded. 296 “Statement by Senior Minister Sok An, at the Stockholm International Forum”, 23-24 April 2002. 92

government, and Pol Pot is only one out of many high ranking Khmer Rouge leaders who have died since then. Further delays could therefore jeopardize the whole process, if central defendants die or fall seriously ill (e.g. Nuon Chea, whose health is deteriorating, and who will be a key defendant in a trial). A major source of political influence has been removed since the Cambodian prosecutor is not in a position to block prosecutions alone. However, if the Cambodian government can affect the Cambodian prosecutor to cause delays by sending cases to the pre-trial chamber, a possible source of more indirect political influence remains.

Is it possible to imagine another negotiating outcome? One central disagreement was the nomination and appointment of the judicial personnel. The Cambodian government formally appoints the UN nominated judges, but the UN has no say in the appointment of the Cambodian judges. If the UN in some way had an influence over the nomination of the Cambodian judges, this would increase the possibility of electing qualified and politically independent Cambodian judges, and there could still be a Cambodian majority in the trial. This is a question of the willingness of the Cambodian government to accept loss of the potential for control. The fact that the UN does not have any say in the appointment of Cambodian judges strongly indicates that the Cambodian government is not willing to give up control over the process.

4.3.4 UN’s right to withdraw: a safety valve? A safeguard for international standards in a trial would require not only the necessary guarantees in the Agreement, but also a means for the UN to secure that the Cambodian government actually upholds its obligations once the trial gets started. Article 28 of the Agreement decides that the UN can cancel its assistance to the trial, “[s]hould the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement”.297 This has by some been upheld as a safety valve and a mechanism for the UN to exert pressure on the

297 Agreement art. 28. 93

Cambodian government. 298 Kofi Annan points to this clause when he expresses his hopes that the Cambodian government will carry out its obligations in spite of the weaknesses of the judiciary: “It is worthwhile noting in this regard that […] any deviation by the Government from its obligations could lead to the United Nations withdrawing its cooperation and assistance from the process.”299 As it is clear that there is no “watertight protection” against political influence, this possibility becomes central to the prospects for a fair trial.

There is good reason to believe that the Cambodian government is eager to use the Khmer Rouge trial to improve its image internationally. If the UN were to withdraw, this would be a huge loss of credibility to the whole process, and many of the benefits from a trial, also for the Cambodian government, would be lost. On the other hand, although the right to withdraw is important, and formally puts pressure on the Cambodian government to uphold its obligations, the real possibility of using this clause is uncertain. The UN has put a considerable amount of resources and prestige into this process, and a Khmer Rouge trial can be viewed as a successful termination of the mission in Cambodia that started in 1991. When the UN backed out of negotiations in 2002, influential countries and the General Assembly exerted strong pressure on the Secretary General to resume talks with Cambodia, and the General Assembly asked the Secretary General to effectively conclude an agreement on terms the UN team had previously rejected. It is likely that similar pressure will be exerted if the UN once again considers withdrawing from the process.

If the UN wishes to withdraw from the process, it must be able to point out clear and significant breaches of the Agreement by the Cambodian side. This might prove difficult. As Ok Sereiy Sopheak argues, the specific understanding of fair trial requirements may vary, and it is likely that the court will operate in a grey zone. This, of course, the Cambodian leaders are well aware of, as they were when the final round of negotiations resumed in early 2003. About the possibilities to pull out Ok

298 Youk 2004, interview with author. 299 UN 2003a (A/57/769) art. 30. 94

argues: “It is not a decision that you take very lightly. You have to have serious evidence before you pull out. It is not going to happen in that way.”300

The right to withdraw is formally important, but once the process gets started, with funding, infrastructure and international judges in place, it is difficult to imagine how the UN can make use of this clause, particularly in light of the pressure that previously has been exerted by influential member states. Therefore, it remains uncertain to what degree this clause will contribute to fair trial standards by pressuring the Cambodian side to comply with the demands from the UN. The clause certainly makes is much more difficult for the Cambodian government to commit clear breaches of the Agreement. Still, the clause is no guarantee against political influence of a more blurred character.

4.4 International standards versus local ownership As outlined in the introduction, international standards of justice are only one of the principles that should be upheld by a mixed tribunal. Local ownership is also central, and the challenge is to fulfil these requirements simultaneously. The two principles are not necessarily mutually excluding, but in given situations it may be difficult to find a solution that meets both. Does the mixed formula in Cambodia tilt too far to the domestic side? Would another balance, for example with a majority of international judges, have created too great a distance between the tribunal and the Cambodian population?

It is difficult to establish what the “Cambodian people” or “ordinary Cambodians” think about the forthcoming trial, but some research has already been carried out. Laura McGrew has conducted investigations into the views of a group of well- educated, English speaking Cambodians. She found that a vast majority of her respondents wanted a trial that was “internationally controlled, or at least internationally sanctioned”. Furthermore, she found that her respondents did not trust

300 Ok 2004, interview with author. 95

the Cambodian government to conduct a trial alone, and a vast majority replied that the Cambodian courts are not fair. 301 Craig Etcheson writes that several surveys have disclosed a widespread distrust in the judiciary among Cambodians, and that an international tribunal to try the Khmer Rouge is widely preferred. According to a survey carried out in 1999 of both urban and rural people, a majority of 65% “expressed a strong preference for an international tribunal”.302 Though it is hard to generalize about what kind of criminal sanctions against the Khmer Rouge people prefer, there are reliable indications that a majority of Cambodians do not trust their judiciary to handle a case against the Khmer Rouge alone. Ok Sereiy Sopheak argues that one cannot really talk about ownership of the process as long as there is no due process of law in Cambodia, and because the Cambodian judicial system could never handle this case alone. 303

On this background it is possible that the international component of the mixed court could have been stronger without prejudicing the principle of local ownership. The demand for a credible process can be just as important as the demand for ownership. At the same time, many Cambodians probably want the court to be located in Cambodia, albeit with international participation. Several of my interviewees expressed the importance of a domestically located court. 304 An international tribunal located outside the country would probably not have been very meaningful for most Cambodians.

The Cambodian government has referred both to the term “ownership” and to the principle of national sovereignty to defend its position in the negotiations. 305 However, the interests of sovereignty and ownership are not necessarily concurrent. If a majority of Cambodians do not trust their judiciary, and would actually prefer an international tribunal, the sovereignty argument is about control for the government, not ownership for the people.

301 Mc Grew 2000. 302 Etcheson 2002: 3. 303 Ok 2004, interview with author. 304 Sedara 2004, interview with author, Sok, interview with author; Youk 2004, interview with author. 96

A good balance between the national and international judges in the tribunal is likely to be notoriously difficult to achieve if mixed models are to be applied in future cases. It has already proved problematic in East Timor. There is no easy solution to this dilemma, and no standard model that could be ascribed to all cases. As seen in Cambodia, important factors to consider are obviously the rule of law-situation in the country, the public opinion, and the degree to which a trial is politicized. Another factor one can never escape is the reality of power politics. In Cambodia, political realities made a purely international tribunal impossible, and a trial could simply not have been established without the cooperation of the Cambodian government.

Jozé E. Alvarez argues that genocide and crimes against humanity can be seen in different ways: As crimes of states, as is done by international lawyers and others who emphasize the responsibility of the political leadership and those who plan and order the crimes, or as crimes of hate , which implies a focus on ancient hostilities, ethnic hatreds and the perpetrators of the crimes. 306 The different conceptions of the crimes affect the approach to accountability. If the victims or affected society see these crimes as crimes of hate , whereas the crafters of mechanisms for accountability see them as crimes of states, it is not necessarily the physical distance between the affected population to the tribunal that is at the core of the ownership problem. Rather, the lack of ownership might stem from a lack of identification with the mechanisms applied. As long as the judicial mechanism follows a universal model of justice, and does not take into account local distinctiveness, ownership may not be achieved by locating the tribunal in the country where the crimes took place. An example of the “crimes of states” perspective is the tendency to prosecute only the top leaders. This might run contrary to the memories and conceptions of the crimes among most of the Cambodian victims, who were driven to forced labour or killed by other “ordinary Cambodians”, perhaps their neighbour, friend or even a relative.

305 “Presentation by Senior Minister Sok An to the Conference on The Rule of Law and the Legacy of Conflict, Gabarone, Botswana”, 16-19 January 2003. 306 Alvarez 1999: 367-69. 97

One point is that the number of perpetrators may be vastly more extensive than the number of prosecuted. Another issue is lack of popular participation in a trial. A domestically located trial may not provide ownership unless “ordinary people” feel that their voices are heard and their grievances taken into consideration. 307 This “wider” sense of ownership can more likely be achieved through nationally located courts than international tribunals. On the other side, trials may not be the best suited mechanism for public recognition of the victims’ sufferings. Thus, there is a parallel between the debate on local ownership, and on the appropriateness of trials versus other mechanisms such as truth commissions, lustration and victims’ compensation. It is outside the scope of my thesis to delve deeper into this extremely difficult question.

4.4.1 The sovereignty argument – is it valid? “‘Sovereign concerns’”, Alvarez writes, “need not be regarded as automatically antithetical to providing accountability for war criminals”. 308 This is true. There are many good reasons for conducting a trial domestically, and an international tribunal should perhaps only be seen as a last resort, when national accountability efforts are totally implausible. 309

When arguing that the composition of a court is a question of national sovereignty, the Cambodian government has referred to two central international law documents, namely the Genocide Convention and the Rome Statute of the International Criminal Court. 310 Both documents do provide for national legal systems to conduct trials, and domestic courts are the primary instruments for such trials. The Genocide convention article VI decides that persons charged with genocide shall be tried “by a competent tribunal of the State in the territory of which the act was committed”, and the Rome Statute of the International Criminal Court affirms the principle of complementarity. However, these documents cannot be rightfully used as a defence of the sovereignty argument, as they both clearly provide for international trials in certain

307 Youk 2004, interview with author. 308 Alvarez 1999: 462. 309 Alvarez 1999: 461. 310 “Statement by Senior Minister Sok An, at the Stockholm International Forum”, 23-24 April 2002. 98

circumstances. The Genocide Convention even supports the principle of universal jurisdiction , i.e. that certain crimes, such as genocide, are of such gravity that any country that is a party to the Convention can conduct prosecutions. Moreover, article VI, while deciding that a domestic court shall prosecute the crime of genocide, affirms that it can be done internationally. The Rome Statute of the International Criminal Court decides that the court can conduct a case when the state concerned is “unwilling or unable”. What this implies is, of course, a matter of interpretation. But it is clear that neither the Genocide Convention nor the Rome Statute provide an absolute protection of the principle of sovereignty.

Hans Corell’s statement that “[t]he question of Cambodia’s sovereignty is not at issue here” reflects the emerging sense in international law that certain principles cannot be overruled by the sovereignty argument. One can see how the dispute over the trial in Cambodia explicitly resembles a growing dilemma in international relations theory and practice: Human rights standards versus national sovereignty.

Nuremberg was a response primarily to the crime of aggression; it punished a war that violated state sovereignty. The Holocaust and other crimes against humanity were at best only a secondary motive for prosecuting German leaders. Some also argued that it was legally impossible to include the extermination of German Jews in the charges, because this was an internal German matter. 311 Thus, at the trial that became the foundational force of the concept of individual criminal responsibility, the principle of sovereignty stood extremely strong. This “statism/human rights dilemma” was definitely not solved in favour of human rights by the founders of Nuremberg, and the Cambodian case shows that, despite many claims that the sovereignty argument is outdated, this chasm is still very real. 312

311 Bass 2002: 193-94. 312 Alvarez, José E. 1996. ”Nuremberg Revisited: The Tadic Case”, European Journal of International Law 7: 245-264, p. 261. 99

4.5 Summary On 15 March 2002, after the UN pulled out of negotiations, the Cambodian government stated: “The UN has not identified any violations of internationally accepted standards in the Cambodian Khmer Rouge Law.”313 This is true. The Law and the Agreement do uphold international standards of justice, if viewed in isolation from the political context in which this trial will take place. The question regarding international standards of justice does not relate to the wordings of the Law and the Agreement as such, but rather to the political surroundings of this trial, and the blurring of the line between the executive and the judiciary in Cambodia. As the question of hierarchy between the Agreement and the Law was solved in a way satisfactory to the UN, and the Cambodian government has included fair trial provisions in the Agreement and the Law, the major issues that remain questioned are the composition of the legal personnel and the decision-making procedures in the court, as well as the possibility for the UN to withdraw if the Cambodian government does not uphold its obligations. Considering the nationality, appointment and decision-making procedures of the judges and prosecutors, the conclusion must be that “watertight protection” against political influence is not provided by the March 2003 Agreement or the Law on the Establishment of the Extraordinary Chambers. Moreover, the usefulness for the UN of the right to withdraw is doubtful. Consequently, the 2003 Agreement that the UN concluded with Cambodia does not give sufficient guarantees for international standards of justice, particularly regarding the principles of independence and impartiality.

At the same time, although international standards are not sufficiently guaranteed, this does not automatically imply that the trial will be substandard. Perhaps, once the trial gets started, the process will obtain a dynamic of its own, which will be difficult for the Cambodian government to interfere with. One should also keep in mind that during the negotiations the Cambodian government did actually make several concessions that deprived it of some of the possibilities of political influence. Although other possibilities of political pressure remain, one cannot predict with

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certainty whether such pressure will actually be exerted, and if the trial as a consequence will fall short of international requirements. Given that the Cambodian government is seriously concerned about its international image, that media and NGOs watch the trial closely, and that the Cambodian judges in their interaction with their international colleagues become sufficiently aware of fair trial requirements and international jurisprudence, the process may actually meet international standards of justice. However, these are conditions that depend on the circumstances of the trial, and do not suffice as guarantees for international standards of justice.

313 “Statement from the Cambodian government position on the Khmer Rouge trial”, 15 March 2002. 101

5. Explaining the negotiating result

The preceding discussion has concluded that some aspects of the Agreement between UN and Cambodia does provide for international standards of justice, while there are other sides that leaves doubts about the guarantee for the independence and impartiality of the process. This chapter will address the third and fourth research questions. First, why did the UN accept a less than perfect agreement, which its negotiating team had previously rejected as substandard? Second, how can the negotiating result be understood theoretically? These questions may shed light on the prospects for a fair trial in Cambodia.

5.1 The UN concessions and superpower pressure Powerful countries have played a key role in the process towards a trial in Cambodia. As has been outlined earlier, a Khmer Rouge trial, particularly an international, is against the interests of China. This has limited the possible outcomes of the negotiations, in the way that a Security Council resolution to establish an international ad hoc tribunal was never an option. It is unclear to what extent China has also influenced the Cambodian government’s position during the process. In any case, China would have preferred no trial at all. What is more interesting is why the UN representatives agreed to a deal that was not consistent with their initial requirements.

When the final round of negotiations was conducted, the Cambodian government’s unwillingness to compromise was strengthened by the fact that, according to the Secretary General, “certain Member States that were closely following the resumed negotiations had made it clear to me that they expected me not to seek any changes to the structure and organization of the Extraordinary Chambers that had been contemplated during the earlier negotiations. The Government of Cambodia was

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obviously aware that this position had been communicated to me and acted accordingly”.314

Japan and France drafted the resolution that asked the Secretary General to resume negotiations with Cambodia in December 2002. 315 Their position was also strongly supported by Australia. Japan in particular was central in re-establishing the talks between the parties. 316 Also, in 1999 Japan’s Prime Minister expressed support for Cambodia’s plans for a domestic trial with international standards. 317 Japan is Cambodia’s main contributor of foreign aid, and is undoubtedly influential in Phnom Penh. Japan’s support for a trial located in Cambodia cannot have made it easier for the UN to negotiate for an international tribunal, or even an international majority in a trial. However, during the negotiating process the most important player was the USA, especially concerning the formulation of the major compromises in the Agreement. As early as in May 1994, it became official US policy to seek justice for the Khmer Rouge crimes, when President Clinton signed into law the Cambodian Genocide Justice Act . The US role in this process may have come as a surprise to some, due to the American indirect responsibility in bringing the Khmer Rouge to power by their support to the Lon Nol regime and the carpet bombing in the early 1970s, as well as their indirect support to the Khmer Rouge after 1979. The US policy must be seen as the result of effective lobbying by some individuals and NGOs, who succeeded in advocating for the adoption of the Justice Act .318 Moreover, the Justice Act was promoted by Democrats, who need not worry about the dubious reputation of Kissinger and Nixon. In any case, the USA has advocated a trial that only includes the period of Khmer Rouge rule, effectively leaving out its own disgraceful role in Indochina. 319

314 UN 2003a (A/57/769) art. 21. 315 The United Nations 2002a. France and Japan: Draft Resolution (A/C.3/57/L.70). 316 Jarvis 2002: 607. 317 Kyodo 1999. “Obuchi supports Cambodia's plan for Khmer Rouge trial”. 17 June. 318 Marks 1999: 703-4. 319 It should also be noted that the efforts of the Clinton Administration in Cambodia has not been followed up by the Bush Administration. The Democrats generally want to see a trial in Cambodia, but this is not Republican policy. Now that there is an agreement over the trial, the Republicans might try to obstruct the process by declining funding for the trial. Therefore, with a Republican Administration, the role of the USA is turned upside down. From being a key actor in negotiating a solution both the UN and the Cambodian government could finally agree to, its resistance to the trial might now hinder 103

American representatives gained a role in the process even before the negotiations between the UN and Cambodia started in August 1999. In April 1998, the US ambassador-at-large for war crimes issues, David Scheffer, went to Cambodia to conduct talks aimed at creating an international tribunal for the Khmer Rouge leaders. 320 At this time, the Clinton administration wanted an international tribunal, and pursued the possibility of getting Khmer Rouge leaders extradited from Cambodia and tried in another country. 321 Scheffer argued that “their continued freedom constitutes a threat to peace and security in this region”.322 By using this phrase he justified a possible Security Council resolution establishing an international tribunal, because such a resolution can only be made in response to a threat to peace and security. However, as Cambodia in March 1999 made it clear that it rejected an international tribunal, and its view was supported by China, a Security Council resolution was not an option. The USA then became central in formulating the composition of the mixed court. Some of the most significant compromises reached between Cambodia and the UN were not actually brokered between the two parties, but by diplomats and politicians under the Clinton administration. Most important are the super majority solution to the issue of judges, and the pre-trial chamber solution for disputes between the co-prosecutors, two of the most central and difficult points in the negotiations. Initially, the UN team was not supportive of the suggestions posed by the US. 323 However, when agreement was finally reached, these remained standing. American support for the trial has subsided since the Bush Administration took office in 2001.

It is clear that certain influential countries have played a central role in this process, a fact that is not denied by the Secretary General. 324 Taking into account the statements from Kofi Annan and Hans Corell during the negotiations, it is rather surprising that they accepted the final Agreement.

sufficient funding and thus impede the whole process. Consequently, other countries must adjust their plans for funding upwards. 320 Cambodia Daily 1998. “US Diplomat Arrives for KR Tribunal Talks”. 29 April. 321 Adams 2002. 322 Cambodia Daily 1998. “Envoy Asserts US Determination for Tribunal”. 30 April. 104

The change of position from the UN could also be seen as a willingness to negotiate over an agreement that was actually politically possible. Cambodia would clearly not agree to a trial arrangement that in effect gave the UN-side control over the process. It became clear that the UN had to compromise on the issue of judges if any agreement should ever be reached.

The changing positions of important countries towards the trial highlight a central aspect of Risse’s theory: The role of the transnational human rights network. The network operates to pressure a targeted government “from above” and “from below”. The fact that the UN, influential countries and human rights organisations did not operate unified in these negotiations sheds light on the internal dynamics of the transnational human rights network. According to Risse, it is basically the pressure from this network that causes change in a state’s policy. Risse presupposes a network of various organizations and liberal democratic states that exerts pressure on the target state. Regarding the negotiations over a Khmer Rouge trial, however, the pressure exerted on Cambodia was pointing in different directions. In the early phases of the negotiations, the USA was supporting the idea of an international tribunal, thus supporting the UN experts’ position. Later, however, the US was actively working for a solution with a majority of Cambodians, in accordance with the Cambodian Law, thus undermining the UN’s stance in the negotiations. The fact that the USA conducted negotiations on its own with Cambodia was a source of much discontent within the UN delegation. When the final round of negotiations was conducted, Japan and France wanted an agreement based on the Cambodian law. Human rights organisations as Amnesty International and Human Rights Watch on their side, opted for an internationally controlled trial, a solution that was politically impossible. The transnational network did in other words change over time, in a way that actually weakened the initial goal of this network. In the last phase of the negotiations the pressure to compromise was exerted on the UN as well as on the Cambodian government. This change clearly affected the outcome of negotiations. On the one

323 Associated Press 2000. “UN, Cambodia fail to agree on tribunal”. 23 March. 324 UN 2003a (A/57/769) art. 21, 29. 105

hand it is possible to argue that this is in accordance with Risse’s theory: Once the network is weakened, the possibilities of influencing the target state drastically diminish. However, one can also argue that Risse takes the functioning of the network for granted. The UN negotiating team, instead of representing a powerful and unified transnational network, was squeezed from two sides by actors that initially formed the joint network promoting a trial: On the one side the USA, Japan, and other member countries, who wanted a trial in accordance with the already adopted Cambodian law, and on the other side the HRW and Amnesty, who viewed any solution that was not internationally controlled as unacceptable. 325

5.2 International norms and domestic change? The process that led to the agreement on establishing a tribunal to try the Khmer Rouge leaders has in many ways followed Risse’s path. There has been continuous pressure from various international and national actors. At one point it seemed clear that the Cambodian government did not want to try all the Khmer Rouge leaders, but only Ta Mok, who did not defect voluntarily. However, the Cambodian government had to give up on this position, and confirm that it would be up to the court to decide who to prosecute. This incident supports Risse’s assumption that pulling out of a discourse about human rights norms once it has started may be difficult. 326

A central element in Risse’s theory is the discourse through which the interests of a target state can be affected. The negotiations between the UN and Cambodia is a clear example of such a discourse. Moreover, the Cambodian government has repeatedly made references to international standards of justice and the weaknesses of its own legal system. These factors have been used as reasons for requesting international assistance. Such references can be found both in official government

325 Amnesty International 2003b: 8; Human Rights Watch 2003. 326 Risse and Sikkink 1999: 16. 106

documents and in interviews given by Hun Sen himself and other government officials. 327

As described above, the Cambodian government made several concessions in the negotiations. Importantly, references to the most central human rights documents in this field have been included in the Agreement. This shows that international involvement and pressure had clear effects. On the other hand, it is evident that parts of the Agreement do not reflect the UN’s wishes. Can this negotiating result be understood in light of Risse’s theory?

If one applies Risse’s five phased model to Cambodia, one can argue that the government’s policy is not one of denial, which defines the second phase of the model. In its rhetoric the government accepted the importance of a trial and of international standards of justice. Although some signs of denial remain, for example that the Cambodian government has referred to the sovereignty argument 328 and at one point of the process suggested to “bury the past”, it is clear that by and large this process is not in a phase of denial. The Agreement has been reached, signed and ratified.

A state is, according to Risse, in the phase of prescriptive status (phase four) if “the validity claims of the norm are no longer controversial, even if the actual behavior continues violating the rules”. 329 It may seem like this phase was reached when the Agreement was ratified on 4 October 2004. Ratification or implementation into the domestic legislation of relevant norms is one of the requirements Risse makes for a prescriptive status to be reached. This phase, however, should also include institutionalized mechanisms to ensure compliance with the norms, and the government should no longer refer to for example the sovereignty principle when answering criticism. Therefore, it would be a misinterpretation to argue that the

327 See e.g. “Remarks by H.E. Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia”, 6 June 2003; Faulder 1999b. 328 See for example “Statement by Senior Minister Sok An introducing the Draft Law to the National Assembly”, 29 December 2000 and 2 January 2001, where Sok An states: “Respect for national sovereignty is a fundamental underpinning in organizing a tribunal.” 329 Risse and Sikkink 1999: 29. 107

policy of the government towards the Khmer Rouge trial has reached phase four, although the ratification on 4 October 2004 is certainly a step in that direction.

The current status of the process is best understood as phase three of Risse’s model. This phase is characterized by tactical concessions as a response to pressure. Without losing control of the process, the Cambodian government has during the negotiations made concessions in response to the pressure from the UN and other actors. In phase three, the state no longer denies the validity of the relevant norms. 330 The Cambodian government has repeatedly made references to international standards of justice.

Another central element of this phase is the importance of sustained pressure if human rights improvement is to continue, and the possibility of backlash if the network eases its pressure as a result of the concessions. A tactical concession is a step in a process which may or may not lead to institutionalized human rights improvements. “This is the most precarious phase of the spiral model, since it might move the process forward toward enduring change in human rights conditions, but can also result in a backlash.” 331

Alternatively, the negotiating result can be understood in realist terms. Firstly, it can be seen as constrained by the limits of the politically possible. Secondly, it can be seen as the result of the political power play that has surrounded the trial from the very beginning. The fact that the UN did not get the agreement it wanted, can be seen as a failure of international norms in meeting with claims of national sovereignty.

Both sides made concessions during the negotiations, and the Agreement cannot be said to comply with the demands of only one of the sides. Perhaps it is best understood as a result of pressure and a political power play, incorporating international human rights norms and reflecting political realities. Although it is indeed possible to find support for a realist interpretation, this does not need to imply a rejection of Risse’s theory. Risse accepts the importance of realist motives based on

330 Risse and Sikkink 1999: 26. 331 Risse and Sikkink 1999: 25. 108

power and material structures, but argues that these concerns work together with pressure, norms and changing interests. A central argument is that the balance between the motives changes over time. The ratification of the Agreement on 4 October 2004 was certainly a step in the direction of allowing further policy change. This could lead to Risse’s next phase: prescriptive status.

5.3 The different explanations and the prospects for a fair trial The fact that important member countries of the UN have pushed for the current result may have two implications. First, they accepted the Agreement although it was not in full accordance with the UN’s requirements. This will probably make it difficult for the UN to pull out over irregularities once the trial has started. Second, there is a genuine interest among powerful states in seeing a trial take place. As they pushed for a resolution in the General Assembly, they may also want to make sure that the trial will be well conducted, e.g. by providing financial support.

An interpretation of the Agreement in accordance with Risse’s theory implies that continued change of the government’s policies in this field, and thus a fair trial, is possible, but requires sustained pressure from the human rights network. For the impact of the network’s pressure, Risse underlines the importance of a state’s vulnerability. “To the degree that a nation values its membership in an emerging community of liberal states, it will be more vulnerable to pressures than a state that does not value such membership.” 332 Ok Sereiy Sopheak argues that for the CPP leadership, the Khmer Rouge trial is a question of international legitimacy. The trial of 1979 has not been recognized internationally, and the CPP leadership seeks the international acceptance a trial could imply. 333 The government may also see the trial as an opportunity to improve its relations with other countries, especially the USA. 334

332 Risse and Sikkink 1999: 24. 333 Ok 2004, interview with author. 334 Ok 2004, interview with author. This argument may be weakened somewhat with the continuation of a Republican Administration in Washington. 109

The actors engaged in this process have been pulling in different directions, for different goals, thus undermining the potential strength of a unified network. The prospects for a fair trial depend on the different actors’ ability to cooperate to keep the trial under the closest scrutiny possible, and to pressure possible donor countries to fund the trial.

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6. Conclusions and comparative perspectives

How has the UN affected the prospects for a fair trial of the Khmer Rouge? This question has served as the starting point for the analysis in this thesis. By addressing four more specific research questions, the thesis has discussed the topic both empirically and theoretically. In this concluding chapter I will summarize the findings. I will discuss the fruitfulness of theoretical approaches, and discuss the mixed court in a comparative perspective. Finally, I will raise the somewhat disturbing question one has to relate to in the field of transitional justice: Why prosecute?

6.1 The research questions Is UN involvement a precondition for a fair trial in Cambodia? The answer is clear. It is unthinkable that Cambodia could meet the conditions for a fair trial without international support. Many factors lead to this conclusion. First, the Cambodian judiciary suffers from severe lack of resources and expertise. For this reason alone, some degree of international involvement or support is required. This viewpoint is supported by the Cambodian government, who argues that the weaknesses of its own judiciary is the reason for the request for international support for the trial. 335 This factor relates to the requirement of competence as set out in the Covenant on Civil and Political Rights. Moreover, the Cambodian judiciary’s ability to handle the trial in accordance with the requirements of independence and impartiality is dubious, due to, first, the way the transition has affected the willingness to put the Khmer Rouge leaders on trial, second, the political power play surrounding the trial, and third, the lack of a rule of law culture in Cambodia.

335 See for example: “[W]e were all too acutely aware of the weaknesses in our judiciary, and we wanted help to make certain this trial was able to meet internationally accepted standards” in “Remarks by H.E. Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia”, 6 June 2003. 111

Two decades passed from the Vietnamese invasion threw Khmer Rouge out of Phnom Penh until the group finally dissolved. While the continued strength of the Khmer Rouge for many years made a trial impossible, the transitional process still affects the prospects for a fair trial by putting those Khmer Rouge leaders who did not defect voluntarily at more risk of prosecution than those who struck deals with the government. In a purely Cambodian trial, some Khmer Rouge leaders would probably be subject to punishment, while others would enjoy the government’s protection.

The UN decided to engage in the process at a time of political turmoil in Cambodia. The two main parties (CPP and FUNCINPEC) were struggling for power, and their relation to the Khmer Rouge was part of this power play. As shown in chapter 3.2, several motives were behind Hun Sen’s request for a trial, such as to strengthen his fight against the Khmer Rouge, and to consolidate his power vis-à-vis FUNCINPEC. There is reason to believe that Hun Sen would use any means available to fight the Khmer Rouge, even judicial means. It is not the intention to hold a trial that is at issue here, but rather his view of the trial as a means in a political struggle, a tool in a political power play.

There can be no clearer illustration of Hun Sen’s lack of commitment to a bona fide trial than his statements when some of the Khmer Rouge leaders surrendered, while others were still resisting integration into the government. At one point he favoured a trial against those who were still resisting the government, but when these individuals defected, Hun Sen suggested to bury the past. Hun Sen played a significant role in neutralizing the Khmer Rouge, and thus deserves credit for finally bringing peace to Cambodia after decades of unrest. This, however, does not change the impression that a genuinely fair trial of the Khmer Rouge was never on the agenda. It is also likely that the CPP leadership will want to influence a future judicial process in order to avoid unpleasant revelations about its own past, as well as out of concern for China. These problems are reinforced by the weak rule of law culture in Cambodia. There is constant political interference in the judiciary, and rulings are made arbitrarily. Under

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these circumstances it is impossible to imagine an independent and impartial Cambodian trial.

UN involvement is thus indeed a precondition for a fair trial in Cambodia. But UN involvement is not in itself a guarantee for internationally accepted standards. Human rights organizations have questioned the quality of the agreement reached between the UN and Cambodia, and some of its aspects have even been criticized by the UN Secretary General Kofi Annan himself.

Did the UN prejudice international standards of justice in its agreement with Cambodia? The answer to this second question is less clear. I have found that there were several points of dispute between Cambodia and the UN, and that concessions were made on both sides. Important principles of justice have been incorporated into the agreement, and from the Cambodian point of view, it was a major concession to let the UN take such a big part in the process. It is difficult to argue that the agreement in itself breaches international standards of justice. It refers to art. 14 and 15 of the International Covenant on Civil and Political Rights, and states that judges, investigating judges and prosecutors shall be independent and not accept instructions from any source. However, one of the crucial points where the UN compromised – the question of the nationality and appointment of the judges – is also the point that relates to the most serious rule of law-problem in Cambodia: the political influence over the judiciary.

The provisions in the Agreement that leave doubts about the international standards of justice are firstly, that a majority of the judges will be Cambodian, and secondly, that the appointment of the Cambodian judges is in the hands of the Cambodian Supreme Council of Magistracy. Sufficient safeguards against political manipulation are not built into the Agreement. Therefore, one can argue that the UN did actually prejudice international standards of justice when concluding the Agreement with Cambodia. How seriously this will affect the trial once it comes into operation remains to be seen.

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The discussion of international standards of justice should not be seen separately from the importance of local ownership. A mixed court may be an arrangement that can balance these considerations better than a purely international or purely national effort. This thesis has argued that it is reasonable to locate a trial in Cambodia, with substantial Cambodian participation. However, a stronger international representation at the court would not have violated the sense of ownership, since the majority of Cambodians do not trust the Cambodian judiciary to handle the trial, and want considerable international participation in the trial. Instead, the issue of ownership has been used, together with the sovereignty argument, by the Cambodian government to justify its rejection of an international majority to the court.

The third research question concerned the outcome of the negotiations, and asked why the UN accepted a less than perfect agreement with Cambodia. Pressure from influential countries strongly affected the UN negotiating team. China’s resistance to an international tribunal affected the negotiations from the beginning. The USA was the most important country in facilitating the compromises reached between the parties. Australia, France, and Japan all wanted an agreement based on the Cambodian law that the UN negotiating team had previously rejected. Although the Secretary General expressed discontent with the position held by “influential member countries”, the pressure exerted from these countries also implied that negotiations were conducted over an arrangement that was acceptable to the Cambodian government, and consequently within the limits of the politically possible. If the requirement of for instance an international majority in the court was held by the UN as an absolute condition for its involvement in the trial, an agreement would probably never have been reached.

As a second approach to explaining the negotiating result, the fourth research question has asked how the agreement between the UN and Cambodia can be understood theoretically. The thesis has applied the theory developed by Thomas Risse et al. in the study The Power of Human Rights. International Norms and Domestic Change . If understood in Risse’s terms, the Agreement is best interpreted as a “tactical concession”. This interpretation implies that with sustained pressure

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from domestic and international actors, the policies of the Cambodian government can continue to improve, and a fair trial might then be possible. If, on the other hand, one applies a realist interpretation, the prospects for a fair trial are not so bright. This thesis has not aimed to test these theoretical approaches and their ability to explain the Cambodian case. However, at the time of writing, the Agreement can be justifiably interpreted as a step in the process towards human rights improvement as described in Risse’s theory.

In sum, what do these findings say about how the UN has affected the prospects for a fair trial in Cambodia?

The main conclusion is that UN participation is a precondition for a fair trial. However, there are sides to the Agreement that leave the prospects for the Khmer Rouge trial to meet international standards of justice very much in doubt. The UN has indeed affected the prospect for a fair trial in Cambodia, but its involvement has by no means provided a guarantee for upholding international standards of justice.

The UN, supported by human rights organizations, initially asked for an international majority of judges who would reach decisions by a simple majority vote. However, the Cambodian government would not accept a formula that in effect gave the international part control over the process. The assessment of the result therefore must take into consideration the limits of the politically possible. An international tribunal was out of the question. The UN depended on the cooperation of the Cambodian government. What this question really boils down to, is if substandard justice is better than no justice. And there is no easy answer to that question. In future cases, the UN needs to be clear whether or not it should get involved in these processes, and on what conditions. Which issues are up for negotiation? What are the principles that the UN can never abandon? It seems that the UN entered the negotiations with Cambodia without such clarity on principles, or was forced to abandon them in meeting with the political reality, both in Cambodia and among the group of influential countries involved.

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6.2 Theoretical approaches The thesis has employed several theoretical approaches in the discussion of the Cambodian case. What is their usefulness? Can the theories improve our understanding of the case?

Samuel P. Huntington argues that the balance of power between an outgoing and a new regime, as created by the transition, strongly affects the possibility of a trial. 336 By drawing attention to the transitional process, this argument has proved useful. The nature of the transition has indeed affected the prospects for a trial in Cambodia, and it still does. However, the usual assumption that a negotiated transition leaves the outgoing regime with sufficient strength to impede a trial is not fully supported by the findings in this thesis. In the last phases of the transition the negotiated defections of Khmer Rouge leaders actually led to the disintegration of the Khmer Rouge, not to its continued strength. Therefore, although the last phase of the transition was largely “pacted”, and negatively affected the government’s willingness to put some of the Khmer Rouge leaders on trial, the subsequent balance of power actually allowed for a trial to be planned. The Cambodian case is an example of a highly intricate transitional process. Huntington’s argument is better applied to the details of the individual defections and defeats than to the relations between the government and the Khmer Rouge as a group.

Gary Jonathan Bass argues that any war crimes trial is victors’ justice. The real question is which victor and what kind of justice. Only liberal states that follow legalist principles in their domestic policies will, according to Bass, conduct bona fide war crimes trials. His approach underlines the importance of studying the norms of the state conducting a trial, and seems highly appropriate to Cambodia. This thesis has argued that the assumption about victors’ justice can be usefully seen as an extension of Huntington’s argument. Whereas Huntington points to the importance of the balance of power, Bass’ argument shows that exactly because justice will always be decided by the victors, the norms to which these victors adhere are essential.

336 Huntington 1991: 215. 116

Combined, the two approaches provide insight about both the possibilities of any trial to take place, and the possibilities of a fair trial.

In a mixed tribunal, a central aim is to achieve the high standards of justice that could not be expected from a purely national effort. If this promise is to be materialized, the international actors must be able to influence the norms of the state hosting the trial.

In this thesis, special attention has been given to Risse’s theory of international norms and domestic change, as outlined in the book The Power of Human Rights .337 Applied to Cambodia, it can shed light not only on the possibilities for a trial and the importance of the norms of the prosecuting state (like Huntington and Bass), but how international involvement can bring the Cambodian government to adhere to international norms. Importantly, Risse’s theory can also be used to make informed guesses about the future. In other words, while Huntington and Bass can tell us that the conditions for a fair trial in Cambodia are not favorable and that international involvement is needed, Risse can tell us how this international involvement may ensure high standards of justice.

Risse’s theory illuminates the question of international involvement in domestic policies. Judicial standards in the Khmer Rouge trial is a good case for applying Risse’s theoretical approach. There has been pressure from a network, and improvement in the policies should be easily recognizable. The approach is also generally useful for the discussion of mixed tribunals, since the successful implementation of such arrangements may require international influence over domestic norms. But does Risse’s assumptions about human rights improvement work? Are we seeing pressure, discourse and norm change?

337 Goldstein and Keohane’s work Ideas and Foreign Policy is an important contribution to the understanding of the role of norms and ideas in policy formation, and an important part of the constructivist critique of the narrow “realist” or “instrumentalist” understanding of interests and foreign policy. However, this theory is not specific regarding the mechanisms of norm influence. Furthermore, although it can be seen to describe the role of ideas in politics in general, its main focus, as the title indicates, is foreign policy, and not the effect of international norms on domestic policies. See Goldstein, Judith and Robert O. Keohane 1993. “Ideas and Foreign Policy: An Analytical Framework” in Judith Goldstein and Robert O. Keohane (eds.), Ideas and Foreign Policy. Beliefs, Institutions and Political Change . Ithaca: Cornell University Press.

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In other cases as varied as Yugoslavia, Rwanda, Argentina and South Africa, the transnational network has played a role in putting the question of justice on the agenda, and influencing the choices of justice solutions. 338 In Cambodia, there has certainly been pressure, and there has been a discourse. Can the Agreement be interpreted as norm change? As argued in chapter 5.2, it can be seen as a tactical concession by the Cambodian government, thus as a step in a process towards norm change and human rights improvement. However, it is also possible to apply a realist interpretation, an approach that would leave the possibilities of a fair trial much more in doubt.

Although Risse’s approach is useful to illuminate the Cambodian case, there are important weaknesses to his theory. The most serious is perhaps the lack of specification of the factor influencing a target state: pressure from a transnational network. Lack of change in the human rights field can always be explained with a “too weak” network, because the necessary strength of the network is not specifically defined. If the network is too weak, improvement will not occur. If it is strong enough, improvement is indeed possible. It becomes difficult to decide at what point the theory must be rejected.

Another weakness in Risse’s theory is the tendency to view the transnational network as a unified actor. As shown in chapter 5.1, the network pressuring Cambodia changed over time, and this severely affected the policy outcome. Can this be easily explained by saying that the network and its pressure were weakened? Or does this perhaps indicate that the actors constituting the network did not operate according to Risse’s assumptions? When applying Risse’s theory it is important to take changes within the transnational network into consideration.

A final problem with Risse’s theory is the potential of addressing only one or a few aspects of human rights improvement. This is not unique to my study of Cambodia, it is the way Risse et al. apply their theory. 339 This is, naturally, done for

338 Sieff and Wright 1999: 769. 339 Risse and Sikkink 1999: 2. 118

methodological reasons. It is practically impossible to study the whole range of a state’s human rights policies. However, this should not obscure the fact that improvements in one human rights field may concur with backlash in another. Regarding Cambodia, it is extremely important to bear in mind that although the Agreement has now been ratified, some recent developments are quite unfortunate. The freedom of assembly and organization has probably worsened lately and peaceful demonstrations have been cracked down. Killings of high profile political leaders have not been properly investigated. Also, with the government coalition that finally came into formation on 15 July 2004 after a year of deadlock, the voice of the opposition Sam Rainsy Party has been marginalized. An acceptable implementation of the Khmer Rouge trial must be seen in light of these other developments in the human rights field.

In the field of international relations, realism is the dominant theoretical approach. War crimes trials are not at the core of a realist’s field of interest. “Realists concentrate on interactions among major powers and on matters of war and peace. Other issues – even related issues like war crimes – are secondary.”340 However, realists comment on and criticize war crimes trials, and the discussion over trials has usually been between realists and legalists. 341 Alvarez writes: “[T]he main critique of the international legal paradigm has come from political realists, including a few renegade lawyers who regard the arguments for international trials as based on naive internationalism or utopian visions of world order.”342 The father of modern realism, Hans J. Morgenthau, commented on the Nuremberg trials in the following way: “I am doubtful of the whole setup under which these trials will be conducted. What, in my opinion, they should have done is to set up summary courts-martial. Then they should have placed these criminals on trial before them within 24 hours after they were caught, sentenced them to death, and shot them in the morning.” 343 Not only are realists skeptical that idealist motives are really the driving force behind war crimes

340 Abbott, Kenneth W. 1999. “International Relations Theory, International Law and the Regime Governing Atrocities in Internal Conflicts”, The American Journal of International Law 93 (2): 361-379, p. 364. 341 Alvarez 1999: 366. 342 Alvarez 1999: 384. 119

trials. Realists reject trials as a sensible policy option. A classic realist critique of war crimes trials is the potential these cause for renewed warfare or unrest. Sentiments of retribution and hatred should not be transferred into a peace settlement. 344

A realist would assert that a trial mirrors already existing power relations. A trial is established because it was politically advantageous for the actors. Moreover, a trial is often seen as a cowardly attempt to make up for the West’s failure to prevent the atrocities in the first place. 345 But this does not explain why trials sometimes follow legal principles strictly and lead to unexpected acquittals or other results. Why do victors sometimes leave the outcome of a trial to the uncertainty of a legal procedure? Why did the Allies choose Nuremberg instead of summary executions, for which there probably would have been widespread popular support? Why do the UN and the government in Phnom Penh bother to engage in the current process?

In sum, a realist would argue that the course of development in transitions is simply following the balance of power and the self-interest of the most powerful actors. An idealist would argue that law operates as a strongly independent foundational force. 346 One of these approaches alone cannot fully account for when and why fair trials take place.

There is no problem in applying several theoretical approaches. In this study, they are not mutually excluding. Rather, they can be usefully linked together, to illuminate different parts of the process. Huntington can be used to discuss the possibilities of any trial, by looking at the balance of power. This argument can be taken further by referring to Bass, saying that exactly because it is the victors who decide the justice, it is crucial to study the norms of the state that will execute the justice. Applied to Cambodia, a fair trial can only be conducted if international involvement is strong enough to influence the operational procedures of the judiciary. This is where Risse’s approach is essential. Because the Cambodian trial is not going to be internationally

343 Quoted in Bass 2002: 10. 344 Bass 2002: 10. 345 Alvarez 1999: 384. 346 Teitel, Ruti G. 2000. Transitional Justice . New York: Oxford University Press, p. 214. 120

controlled, but rather a process where the Cambodian judges are in majority, change in human rights standards must occur if the trial is going to be fair. This is also at the core of the debate over mixed tribunals. If the UN’s motive behind engaging in a mixed trial is to ensure international standards of justice, this presupposes that the international actors are able to influence the court. Finally, realist assumptions about the importance of power and the limits of liberal ideas should not be disregarded. Such assumptions are incorporated in Huntington’s argument, and power-politics and self-interest may indeed put its mark on a forthcoming trial.

6.3 A comparative perspective Since the beginning of the UN-Cambodian negotiations in 1999, mixed courts have been established in East Timor and Sierra Leone.

The Serious Crimes Unit at East Timor was allegedly established with Cambodia as a model. The Unit was quickly established in Dili in 2000. When The UN decided to investigate serious crimes committed on East Timor, this was at a time when the UN transitional authority faced the enormous task of rebuilding a judicial system that was totally shattered. Although the trials were to be conducted in the district court of Dili, the task would have been insurmountable without strong international participation. The UN had to train East Timorese with no previous law experience to operate as judges in the court. A majority of positions in the Unit were internationally appointed. The Unit relied on Indonesia to prosecute Indonesian offenders, which in effect meant many of the most culpable. Although the two models turned out to be quite different, some lessons from East Timor might be valuable for the implementation of the trial in Cambodia. A notorious lack of resources and expertise has plagued the court in Dili. Indonesia has been extremely reluctant to investigate Indonesian suspects, which has meant that the caseload of the Unit at East Timor has become much larger than initially intended. Moreover, the mandate of the

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prosecutions has been far too wide. This has resulted in a tendency to prosecute a large number of lesser offenders, while the “big fish” have evaded prosecution. 347

The trial would probably have benefited from a more narrowly defined jurisdiction. 348 However, it seems that the most serious problem with the Unit stems not so much from the structure of the court itself, but rather from the lack of political will, both from the UN to give priority to the Serious Crimes Unit, and from Indonesia to do its part of the prosecutions. This has made the implementation extremely difficult.

Some of the flaws of the East Timorese model seem to have been avoided in Cambodia. The court will put only the leadership of the Khmer Rouge on trial, and treat only the four years of Khmer Rouge rule, as opposed to the time span of 25 years in East Timor. Moreover, the proceedings will not commence until a large part of the funding is guaranteed. Also, although the Cambodian judicial system is in many ways flawed, it is not as shattered as in East Timor, and does not need to be totally rebuilt before a trial can take place.

A tribunal with a majority of East Timorese judges was practically impossible. There have been many calls for a purely international tribunal, especially in response to the lack of will from the Indonesian side to investigate the major Indonesian offenders. At the same time, the East Timorese judges in the Unit have felt marginalized. Clearly, East Timor is another case where it has been difficult to achieve international standards of justice and local ownership.

In Sierra Leone, a civil war characterized by severe human rights violations had been raging since 1991 when it was brought to an end by the Lomé Peace Agreement of 22 May 1999. The agreement granted amnesty to the leadership of the Revolutionary United Front (RUF), the rebel group that had fought the government. However, the UN did not accept the applicability of amnesties to international crimes of genocide, crimes against humanity, war crimes and serious violations of other international

347 Linton 2001: 218-19. 348 Linton 2001: 14-15. 122

humanitarian law. Renewed warfare and RUF attacks on UN peacekeepers intensified demands for accountability. 349 The Security Council voted for the establishment of a war crimes court on 14 August 2000. This decision was supported by the Sierra Leone President. 350 An Agreement between the UN and Sierra Leone was signed in January 2002 by Sierra Leone’s minister of Justice, Solomon E. Berewa and UN Under-Secretary General for Legal Affairs Hans Corell, who also signed the agreement with Cambodia in 2003.

As in East Timor, there is a majority of UN appointed judges, and the court is in effect controlled by the UN. 351 Like the Cambodian court, it is funded by voluntary contributions, not from the regular UN budget. 352 As in Cambodia, the amnesty issue has been central. In Sierra Leone it has been solved by an agreement with the government that previous amnesties should not hinder any prosecutions. 353 In Cambodia, the Agreement decides that “The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present Agreement”.354 The scope of the Ieng Sary amnesty is to be decided by the court. 355 This is an issue that is likely to arise in future cases. If a precedent is set in international law that amnesties can be disregarded, how will this affect the possibility of offering amnesties in future peace negotiations?

The case of Sierra Leone is another example of a domestic judiciary that would not have been able to conduct internationally accepted trials. International assistance was required. However, another ad hoc tribunal seemed out of the question. The tribunals

349 Linton 2001: 231. 350 Jallow, Hassan 2003. “The Legal Framework for the Special Court for Sierra Leone”, in Kai Ambos and Mohamed Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia . Freiburg: Max-Planck-Institut für ausländisches und internationales Strafrecht, pp. 149-50. 351 Jallow 2003: 154; Linton 2001: 234. 352 Jallow 2003: 159. 353 Linton 2001: 233. 354 Agreement art. 11.1. 355 Agreement art. 11.2. 123

for Yugoslavia and Rwanda had already proved extremely expensive and the international community was not prepared to fund another effort of the kind. 356

It is interesting for the discussion over mixed tribunals that the founding case of modern transitional justice – Nuremberg – was intentionally located in the home country of the offenders because of the expected impact on the political developments in post-war Germany. 357

Chandler writes: “The Nuremberg precedent, often cited because of the number of deaths involved under the Khmer Rouge, is not especially useful, partly because the Khmer Rouge, unlike the Nazis, were never defeated decisively by ideologically antithetical foreign forces and partly because, again unlike the Nazis, the Khmer Rouge were able to attract powerful foreign patrons for many years after being driven from power.” 358 Not only were the Germans defeated decisively, justice was imposed by states that had suffered greatly in the war. This created an extraordinary political will to impose sanctions on the defeated regime. This was at the end of the greatest war ever fought, in which the big powers had a direct interest. As Bass shows, the main problem of Nuremberg was not a lack of political interest in punishing war criminals. Rather, what threatened the legal standards “was that Morgenthau and Stalin, in their own ways, were too interested in punishing war criminals”. 359 The Soviet Union, Britain and strong elements of the US administration wanted swift punishment rather than real trials.

It is evident that Nuremberg was established under extraordinary historical circumstances. Are there still relevant lessons from Nuremberg that can be applied to the debate over transitional justice today? Nuremberg has left an indisputable legacy on the German society, which would probably have been much weaker if it had been located outside Germany. Crocker writes: “The rule of law is a critical part of

356 Linton 2001: 232. 357 The selection of Nuremberg as venue for the trial was based on two considerations: First, its symbolism as the site of the Nazi Nuremberg rallies, second, these were the only undamaged facilities in Germany extensive enough for the trial. Conot, Robert E. 1983. Justice at Nuremberg . New York: Harper & Raw, p. 19; Overy, Richard J. 2001. Interrogations : the Nazi elite in Allied hands, 1945 . New York: Viking, pp. 19-20. 358 Chandler 2000: 82. 124

Nuremberg’s complex legacy.” 360 Furthermore, a weakness of Nuremberg was the lack of German participation and the strong sense of victors’ justice. Allied war crimes were excluded from the proceedings, with reference to the limited jurisdiction of the tribunal. 361 As Hermann Göring – an adherent to realist interpretations – expressed: “The victor will always be the judge, and the vanquished the accused.” 362 Half a century later, the indicted Serb leader known as Arkan said: “I will go to a war crimes tribunal when Americans are tried for Hiroshima, Nagasaki, Vietnam, Cambodia, Panama!” 363 War crimes trials will always reflect the political realities in which they are created.

Since Nuremberg, the importance of locating a trial as close to the scene of the crime as possible has been recognized. A main criticism of the tribunals for Yugoslavia and Rwanda has been the distance of The Hague and Arusha, both physically and mentally, from the locus of the crimes committed, the victims, and the society on which these trials are supposed to have an impact. Analyzing the Rwandan case, Alvarez argues: “The international community should ask not whether a fair and effective national judiciary exists when atrocities end, but whether, given all possible resources, national efforts for criminal accountability are plausible in the relative near term and whether international efforts can further that goal.” 364 As the reluctance to establish an ad hoc tribunal for Sierra Leone illustrates, the international community is probably not willing to commence on such costly affairs again.

There is little doubt that the trend is shifting away from the purely international efforts of justice seen in The Hague and Arusha. The establishment of mixed courts and the principle of complementarity in the Rome Statute, confirm this tendency. “An essential feature of the new judicial order embodied in these new approaches is the reconfirmation of the primary responsibility of national authorities for the

359 Bass 2002: 204 360 Crocker 1999: 55. 361 Beigbeder 1999: 38-41. 362 Quoted in Bass 2002: 8. 363 Quoted in Bass 2002: 8. 364 Alvarez 1999: 461. 125

investigation and prosecution of international crimes.” 365 The ad hoc tribunals for Yugoslavia and Rwanda should perhaps rather be seen as products of very particular circumstances, and a reaction to the failure to prevent the atrocities. In the article “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals”, Chandra Lekha Sriram argues that mixed courts or tribunals represent “externalization reversed”: The trend of externalizing justice, either by prosecution in existing national courts in another country than the locus of the crime, or by the establishment of international tribunals, is in a sense reversed by the efforts of establishing courts with some degree of international participation in those countries where atrocities have taken place. 366

At the same time as the tendency is shifting away from the purely internationalized efforts, a development in international law and politics towards a rejection of impunity or amnesties for the most serious human rights violations may require international support for trials that fragile domestic legal systems cannot handle alone. Therefore, the mixed solution might be a model for the future. 367 But there are central differences between the Unit at East Timor, the court in Sierra Leone and the Extraordinary Chambers in Cambodia. The crux of the matter is the exact balance between the national and international components. The distance between the East Timorese and Sierra Leone models, which have essentially been under UN control, and the Cambodian model, with a majority of Cambodians, is actually quite wide. And although the mixed model carry many promises, it has already proved difficult to find solutions that are perceived as legitimate both internationally and domestically. There is no standard mixed model that can be easily applied to any case of transitional justice. On the other hand, new ad hoc tribunals seem very unlikely in the foreseeable future. Moreover, the operation of the International Criminal Court is highly uncertain, and it is likely that the principle of complementarity will be at the core of disputes about admissibility of cases to this court. Therefore, a central policy

365 Ambos and Othman 2003: 6. 366 Sriram, Chandra Lekha 2004. “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals”, Netherlands Quarterly of Human Rights 22 (1): 7-32, p. 31. 367 Ambos and Othman 2003: 3. 126

question in the future would not be whether or not to support the ad hoc tribunals, but when to offer international support for domestic judicial efforts. When should domestic institutions handle the cases on their own? How can international actors best contribute to the judicial standards in a domestically located procedure? What degree of international participation is needed to ensure international standards of justice? This has been the topic addressed in my thesis, and the dilemma is likely to arise in many future cases.

6.4 Why prosecute? “For these crimes, no punishment is severe enough. It may well be essential to hang Göring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems” .368 Hannah Arendt, commenting on the Nuremberg trial.

Finally, a question I have hardly touched upon in this thesis should be raised. Is prosecution the best way to respond to mass atrocities committed by a previous regime? Arendt’s skepticism that a trial cannot possibly correspond to the gravity of the crimes committed is often advanced in debates over war crimes trials. Legal procedures, it is argued, were created to respond to crimes of another nature. The punishment that might be inflicted on perpetrators of genocide, war crimes or crimes against humanity cannot possibly reflect the suffering they inflicted on their victims.

The fact that legal retribution can never correspond to the crimes committed should be no argument against the establishment of these courts. Complete proportionality between crime and punishment is not a requirement in ordinary criminal law, and should therefore not be applied in transitional justice cases. The idea of a trial should not be dismissed on the ground that legal procedures cannot comprehend the gravity of the crimes committed. But why prosecute?

There are several sides to this question, such as the goals a transitional mechanism is supposed to achieve, if a trial is the most appropriate means to achieve these ends,

368 Arendt to Karl Jaspers, 1946, quoted in Bass 2000: 13. 127

and if a trial can have benefits that can not be obtained through other measures. The literature on transitional justice typically lists several purposes a transitional mechanism, such as a trial, should achieve. These can be both mutually reinforcing and sometimes mutually excluding, depending on circumstances. The goals can be summarized in the following categories: 369

First, a mechanism should contribute to the reconciliation process. Wounds should be healed, enemies should be able to live in society together, and the peace should be built to last. Second, the truth about atrocities should be revealed, and established for the sake of the collective memory. The crimes should not be forgotten, and denial should be avoided. A third category of goals are the needs of and duties towards the victims. They need a platform from which to tell their story, and they need public acknowledgement of their sufferings. Moreover, they may need to see the perpetrators punished. 370 Victims may also need economic compensation or other restoration. Fourth, a central goal of transitional mechanisms is to contribute to democracy and the rule of law. To account for the past may be a prerequisite for establishing a legitimate democratic order. The rule of law can be developed through a trial that ends a culture of impunity. Finally, there is an obligation under international law to hold perpetrators of some of the most heinous human rights abuses accountable. In this sense, punishment becomes a goal in itself. Linked to this is the hope that accountability will deter future crimes, and the sense that impunity for the gravest of all crimes is morally impermissible.

It is beyond the scope of this concluding chapter to embark on an extensive discussion of trials versus other mechanisms. The point I want to make is that a trial that is set up to achieve all these goals is bound to fail. Trials would be more successful if the aims were less ambitious. Two core aims, that can be linked to trials

369 See Crocker 1999; Roth-Arriaza, Naomi 1995. “Punishment, Redress, and Pardon: Theoretical and Psychological Approaches” in Naomi Roth-Arriaza (ed.), Impunity and Human Rights in International Law and Practice . New York: Oxford University Press; Siegel, Richard Lewis 1998. “Transitional Justice: A Decade of Debate and Experience”, Human Rights Quarterly 20 (2): 431-454.; Skaar and Andreassen 1998. 370 Hamber and Wilson argue that the victims’ need to see the perpetrators punished should be recognized, and not dismissed as primitive or unworthy. “The demands of some survivors for retributive justice need to be seen as just as

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alone, and that could probably not be better achieved by other mechanisms, are to live up to the duty to prosecute under international law, and to influence a local judicial environment towards greater respect for the rule of law. Thus, a trial can become a mechanism of norm-institutionalization, and contribute in a broader sense to a process of norm change as set forth by Risse.

A hope that is held by many Cambodians is that the Khmer Rouge trial shall contribute to the development of the rule of law. A trial against the Khmer Rouge can stand as an example of how a proper judiciary should operate. As Youk Chhang says, the trial may contribute to end the culture of impunity, and serve as a foundation for the rule of law. 371 Sok Sam Oeun argues that the truth is not the main aim of the trial: “We know the truth really.” 372 What is more important, he argues, is the model a well-conducted trial can be for how the judiciary should function.

A trial against a few top Khmer Rouge leaders cannot be expected to achieve all goals of truth-telling, reconciliation, mental and economic compensation to victims etc. However, the aims of holding some of the worst genocidaires of the 20 th century accountable, and contribute to the rule of law in Cambodia, should be reasons good enough.

legitimate a path to ‘reconciliation’ as forgiveness”. Hamber, Brandon and Richard A.Wilson 2002. “Symbolic closure through memory, reparation and revenge in post-conflict societies”, Journal of Human Rights 1 (1): 35-53, p. 48. 371 Youk 2004, interview with author; Lao 2004, interview with author; Ok 2004, interview with author; Sok 2004, interview with author; Watt 2004, interview with author. 372 Sok 2004, interview with author. 129

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BBC News 1999. “Cambodia’s chief executioner charged”. 14 May. Online: (consulted 2 February 2004).

BBC News 1999. “China rejects Khmer Rouge trial”. 20 March. Online: (consulted 2 February 2004).

BBC News 1999. “Cambodia rejects international Khmer Rouge trial”. 13 March. Online: (consulted 2 February 2004).

BBC News 1999. “Ta Mok denies genocide in Cambodia”. 8 March. Online: (consulted 24 November 2004).

BBC News 1999. “The ‘Butcher’ to stand trial”. 7 March. Online: (consulted 2 February 2004).

BBC News 1999. “Rebels join the army”. 8 February. Online: (consulted 2 February 2004).

BBC News 1999. “Cambodia genocide definition rejected ”. 21 January. Online: (consulted 2 February 2004).

BBC News 1999. “Hun Sen Backs Khmer Rouge trial”. 17 January. Online: (consulted 2 February 2004).

BBC News 1999. “Hun Sen: Khmer Rouge trial up to courts”. 1 January. Online: (consulted 2 February 2004).

BBC News 1998. “King rejects amnesty”. 30 December. Online: (consulted 2 February 2004).

BBC News 1998. “UN dismay at Khmer Rouge immunity”. 29 December. Online: (consulted 14 May 2004).

BBC News 1998. “Letters of surrender – full text”. 26 December. Online: (consulted 14 May 2004).

Cambodia Daily 2001. “Government Already Has List of KR Judges”. 5 January.

Cambodia Daily 1998. “No Tribunal, Gov’t Insists, Until After July Elections”. 8 May.

Cambodia Daily 1998. “Officials Deny Shift in Policy By Hun Sen on KR Tribunal”. 5 May.

Cambodia Daily 1998. “KR Trial Up to Poll Winners”. 4 May.

Cambodia Daily 1998. “Envoy Asserts US Determination for Tribunal”. 30 April.

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Cambodia Daily 1998. “US Diplomat Arrives for KR Tribunal Talks”. 29 April.

CNN 1997. “U.S. seeks Canada’s help to extradite Pol Pot”. 23 June. Online: http://www.cnn.com/WORLD/9706/23/cambodia/index.html (consulted 4 August 2004).

Kyodo 1999. “Obuchi supports Cambodia's plan for Khmer Rouge trial”. 17 June. Online: (consulted 29 July 2004).

Legal documents

Agreement on a Comprehensive Political Settlement of the Cambodia Conflict , 23 October 1991. Online: (consulted 25 March 2004).

The Cambodian Genocide Justice Act 1994 . (22 U.S.C. 2656, Part D, Sections 571-574). Online: (consulted 8 April 2003).

Convention on the Prevention and Punishment of the Crime of Genocide , 9 December 1948

Draft Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea , 17 March 2003.

“The Ieng Sary Amnesty”, Royal Decree of 14 September 1996, published by the Royal Government of Cambodia, Khmer Rouge Trial Task Force. Online: (consulted 30 January 2004).

International Covenant on Civil and Political Rights, 16 December 1966.

Law on the Outlawing of the “Democratic Kampuchea” Group , 7 July 1994, published by the Royal Government of Cambodia, Khmer Rouge Trial Task Force. Online: (consulted 30 January 2004).

Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 10 August 2001.

Rome Statute of the International Criminal Court, 17 July 1998.

UN Documents

“Daily Press Briefing by the Office of The Spokesman for the Secretary-General” 8 February 2002, published in ”Cambodia and the United Nations – Legal Documents”, Critical Asian Studies 34 (4): 611-621.

The United Nations 2003a. Report of the Secretary-General on Khmer Rouge trials (A/57/769). 13 March.

The United Nations 2003b. Resolution adopted by the General Assembly. Khmer Rouge trials (A/RES/57/228). 18 December 2002, published 27 February.

The United Nations 2002a. France and Japan: Draft Resolution (A/C.3/57/L.70). 13 November. 137

The United Nations 2002b. Situation of human rights in Cambodia. Note by the Secretary-General (A/57/230). 27 September.

The United Nations 2001. Situation of human rights in Cambodia. Note by the Secretary-General (A/56/209). 26 July.

The United Nations 2000. Situation of human rights in Cambodia. Report of the Special Representative of the Secretary General for human rights in Cambodia, Mr. Thomas Hammarberg, submitted in accordance with resolution 1999/76 (E/CN.4/2000/109). 13 January.

The United Nations 1999. Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/153 . 15 March.

The United Nations 1998. Situation of human rights in Cambodia. Resolution adopted by the General Assembly (A/RES/52/135). 12 December 1997, published 27 February.

The United Nations 1994. Security Council Resolution 955 (S/RES/955). 8 November.

Statements and letters by the Cambodian Government on the Khmer Rouge Trial

“Letter from the Cambodian Co-Prime ministers to Kofi Annan”, 21 June 1997. Available at: (consulted 14 September 2004).

Documents published by the Royal Government of Cambodia, Khmer Rouge Trial Task Force. All documents are statements or letters by the Chairman of the Task Force, Senior Minister Sok An. Avaliable at: (consulted 30 January 2004):

- “Remarks by H.E. Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia”, 6 June 2003.

- “Presentation by Senior Minister Sok An to the Conference on The Rule of Law and the Legacy of Conflict, Gabarone, Botswana”, 16-19 January 2003.

- “Statement by Senior Minister Sok An in New York at the conclusion of talks at the UN Headquarters”, 14 January 2003.

- “Statement by Senior Minister Sok An, at the Stockholm International Forum”, 23-24 April 2002.

- “Statement from the Cambodian government position on the Khmer Rouge trial”, 15 March 2002.

- “Statement from the announcement of UN pullout from negotiations on Khmer Rouge trial”, 12 February 2002.

- “Letter to His Excellency Hans Corell, Under Secretary-General, and The Legal Counsel of the United Nations”, 23 November 2001.

- “Statement by Senior Minister Sok An introducing the Draft Law to the National Assembly”, 29 December 2000 and 2 January 2001. 138

Interviews

(Not all interviewees are quoted in the text)

Akmeemana, Saku 2004. Interview with author. Position: Human rights officer/ legal advisor at the United Nations Cambodia Office of the High Commissioner for Human Rights. Phnom Penh, 18 February.

Gutman, Tara 2004. Interview with author. Position: Legal consultant at the Office of the Council of Ministers, Secretariat of the Khmer Rouge Trial Task Force. Phnom Penh, 19 February.

Jarvis, Helen 2004. Interview with author. Position: Advisor to H.E. Sok An, Office of the Council of Ministers, Secretariat of the Khmer Rouge Trial Task Force. Phnom Penh, 19 February.

Kiernan, Ben 2004. Interview with author. Position: Director of the Genocide Studies Program at the Yale Center for International and Area Studies (YCIAS), A. Whitney Griswold Professor of History. New Haven, 29 September.

Kim Sedara 2004. Interview with author. Position: Researcher, Cambodia Development Resource Institute. Phnom Penh, 16 February.

Lao Mong Hay 2004. Interview with author. Position: Head of Legal Unit, Center for Social Development. Phnom Penh, 20 February.

Mc Grew, Laura 2004. Interview with author. Position: Consultant, Open Society Justice Initiative. Phnom Penh, 24 February.

Ok Sereiy Sopheak 2004. Interview with author. Position: Researcher and independent consultant for the Government of Cambodia and NGOs. Phnom Penh, 24 February.

Sok Sam Oeun 2004. Interview with author. Position: Executive Director, Cambodian Defenders Project. Phnom Penh, 16 February.

Watt, Emily 2004. Interview with author. Position: Journalist, Phnom Penh Post. Phnom Penh, 13 February.

Youk Chhang 2004. Interview with author. Position: Director, Documentation Center of Cambodia. Phnom Penh, 18 February.

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