[*PG147]AN (UN)LIKELY CULPRIT: EXAMINING THE U.N.’S COUNTERPRODUCTIVE
ROLE IN THE NEGOTIATIONS OVER
A KHMER ROUGE TRIBUNAL
Abstract: This Note analyzes the breakdown in the negotiations between the United Nations and the Cambodian government over a criminal tribunal to try the surviving senior leaders of the 1975–79 Khmer Rouge regime. A careful study of the Cambodian legislature’s tribunal law and the nature of the United Nation’s objections to the law reveals that Cambodia is not the source of the stalemate. Contrary to prevailing Western views and the assertions of several prominent human rights organizations, the United Nations is the real stonewalling party, and its proposed amendments do not bolster the legitimacy of the tribunal or improve its ability to effectively and fairly prosecute Khmer Rouge leaders. Recent developments only confirm this view of United Nations as an obstructionist. The Secretary General’s continuing opposition to the tribunal law’s framework for domestic/foreign cooperation threatens to undermine a tentative agreement on U.N. participation in the tribunal.
In June 1997, the Royal Government of Cambodia (RGC) formally requested assistance from the United Nations (U.N.) in establishing a tribunal to try living leaders of the Khmer Rouge (KR), a radical communist group responsible for killing almost a quarter of the Cambodian population in the late 1970s.1 This initial contact began a lengthy period of intense negotiations that included advice from numerous foreign legal experts, the mediation efforts of U.S. Senator John Kerry, and a complex set of compromises that secured international participa[*PG148]tion while responding to the RGC’s domestic sovereignty concerns.2 After some minor revisions that temporarily delayed its passage,3 a comprehensive tribunal law was officially promulgated in August 2001, raising hopes that the first indictments and prosecutions would be close at hand after U.N. endorsement of the legislation. However, the U.N. dashed this expectation when it abruptly pulled out of talks in February 2002, citing its opinion that the tribunal law failed to “guarantee . . . independence, impartiality, and objectivity,” contravened “international standards of justice,” and rebuffed the U.N. proposal that U.N. assistance would “be governed by [an] agreement between the U.N. and Cambodia.”4 After the departure from the negotiating table, Secretary General Kofi Annan stated that the U.N. would not restart talks with the RGC unless either the Security Council or the General Assembly provided a mandate to do so.5
Part I briefly reviews the incredible devastation of the KR period and the wealth of documentary evidence directly tying senior KR leaders to the so-called bureaucracy of death that terrorized Cambodia in the late 1970s. Part II focuses on the hybrid domestic/foreign nature of the tribunal, which guarantees meaningful international participation in judicial composition, rulings, investigations, and prosecution decision-making. Part III explores the close fit between the definition of war crimes offenses in the tribunal law and the corresponding definitions in international conventions and statutes governing international criminal tribunals. Part IV identifies the U.N.’s concerns about five specific areas of the tribunal law, exposing one as a misunderstanding, three others as semantic and formalistic, and the final one as unjustified because of available legal arguments and recent legal developments. Part V discusses recent developments leading to a draft agreement for U.N. involvement in the tribunal, and reveals how the Secretary General has clung to his objections about the tribunal’s structure and has laid the groundwork for another U.N. unilateral withdrawal.
During its three and a half year rule, the KR regime—officially known as Democratic Kampuchea (DK)—sought to bring Cambodia to a “Year Zero” and create an agrarian utopia that bore no traces of modernity.6 Under the direction of Pol Pot, the KR emptied all urban centers and forced Cambodians to participate in a crash agricultural collectivization campaign designed to surpass Chinese leader Mao Zedong’s Great Leap Forward.7 Operating under directives to produce more than three tons of rice per hectare, KR cadres turned Cambodians into indentured laborers who toiled for fourteen hours a day in the fields.8 Many of those who were actually able to endure the harsh work schedules fell victim to disease, malnutrition, or starvation.9 The impossibility of the DK leadership’s agricultural productivity demands was matched only by its obsession with rooting out “enemies” opposed to the new revolution.10 Initially, the regime focused on individuals connected to the previous Lon Nol government and non-communist members of the Cambodian population.11 Also, ethnic minorities (Vietnamese, Cham, and Chinese) and religious groups (Buddhists and Muslims) were deliberately targeted for destruction.12 As Pol Pot’s scheme for increased agricultural production collapsed, however, the leadership’s scrutiny turned inward and it conducted a series of internal purges to eliminate traitorous “microbes” within the KR itself.13
A recently released report by the War Crimes Research Office at the Washington College of Law details the systematic brutality inflicted upon those suspected of offenses against the DK regime.14 The report documents a meticulous bureaucracy of death in which every prisoner was photographed and each extracted confession was prepared in mul[*PG150]tiple copies.15 According to the authors, this evidentiary trail directly implicates Pol Pot’s inner circle, as minutes of party meetings, reports from the killing fields, and official notebooks show that senior KR leaders closely supervised atrocities against Cambodian citizens.16 This active management of terror took several forms, including the creation of execution policies, the facilitation of suspected traitors’ arrests, and the transfer of cadre from their divisions for interrogation and ultimately elimination.17 In conclusion, the report states strong prima facie criminal cases against seven members of the DK regime.18
The proposed Extraordinary Chambers in the Courts of Cambodia represent a novel approach to war crimes prosecution.19 Unlike the Yugoslavia and Rwanda ad hoc tribunals, which are strictly international in nature, the KR tribunal combines foreign judicial participation with the existing domestic judicial establishment in the country where the offenses were committed.20 Article 9 of the tribunal law lays out the basis for this domestic/foreign cooperation by mandating a three-tier chamber structure composed of a majority of Cambodian judges and a minority of foreign judges at each level; Article 14 stipulates that a judicial decision or order in each chamber must be approved by at least one foreign judge.21 Thus, while this construction recognizes a prominent role for the domestic judiciary, it also effectively addresses concerns about independence, impartiality, and objectivity by allowing foreign officials to substantially shape the work product of the court.22
[*PG151] Likewise, the provisions on judicial investigations and prosecutorial responsibility ensure compliance with standards of international justice by requiring foreign participation at every stage, from decisions on how to proceed to mechanisms for resolving disagreements between Cambodian officials and their foreign counterparts.23 To that end, Article 23 establishes that judicial investigations are the joint responsibility of two judges, one Cambodian and one foreign.24 Anticipating that the two judges will disagree on some issues, the same article also presents a detailed procedure for the resolution of disputes that involves the submission of written statements to the Director of the Office of Administration and a decision by a Pre-Trial Chamber composed of three Cambodian judges and two foreign judges (four affirmative votes required).25 Finally, Article 16 divides prosecutorial power between two prosecutors, one Cambodian and one foreign, and Article 20 establishes a multi-stage dispute resolution process for prosecutorial disputes.26 Indeed, Article 20 requires the same submission and adjudication procedure found in Article 23 for disputes between investigatory judges.27
The law’s institutionalization of international involvement in the tribunal’s operations finds its clearest expression in Article 46, which pertains to international personnel vacancies.28 According to the terms of this article, the appointment power for foreign judicial officials lies exclusively with the U.N., which submits lists of candidates for judge, investigating judge, and prosecutor from which the RGC authorities must make their selection.29 In the event that these lists are exhausted, Article 46 mandates that foreign vacancies be filled with candidates recommended by U.N. member state governments.30 Only as an absolute last resort—when there is a complete absence of available foreign officials—may the RGC appoint domestic personnel to fill the vacancies.31
The tribunal law also adheres to international standards of justice in its substantive criminal provisions. In fact, the tribunal law’s definitions of genocide, crimes against humanity, and individual/superior criminal responsibility are very similar and in most cases identical to the language found in bedrock international agreements and criminal statutes.32 Regarding genocide, the tribunal law states that the Convention on the Prevention and Punishment of Genocide provides the controlling definition, and a comparison between the two reveals an almost word for word match.33 Furthermore, the tribunal law’s characterization of genocide matches the definition of genocide given in the Rome Statute of the International Criminal Court (ICC), and only slightly varies from the definition of genocide in the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY).34
A look at the treatment of crimes against humanity reveals a similar congruence. The tribunal law’s definition of this offense exactly tracks the definition provided in the ICTY Statute and closely follows the definition given in the ICC Statute.35 Finally, the definitions of individual and criminal responsibility are also reassuringly similar, with the tribunal law making only minor deviations from the core language of both the ICTY and ICC statutes.36
The U.N.’s additional concerns about lack of independence, impartiality, and objectivity are less than convincing.37 According to the U.N., the tribunal law is specifically defective in five areas: the treatment of the Memorandum of Understanding between the U.N. and [*PG153]the RGC, the role of foreign defense counsel, the applicable procedural standards, the U.N. appointment power over personnel, and the effect of pardons and amnesties on the ability to prosecute.38 This section takes each of these objections in turn, and demonstrates that none of them has the legitimacy to be a deal breaker that would justify unilateral U.N. withdrawal from the tribunal formation process.39
The U.N.’s first major problem concerns the RGC’s alleged rejection of the principle that U.N. assistance would be based on an agreement between the U.N. and the RGC.40 However, in asserting its claim that the RGC has reduced the Memorandum of Understanding (MoU) “to the status of an administrative document subordinate to the law,”41 the U.N. misunderstands the nature and purpose of the memorandum.42 The substantive issues regarding U.N. assistance were addressed in the compromise agreements written into the tribunal law, which assure meaningful international involvement through a supermajority structure, elaborate dispute resolution mechanisms for disagreements between foreign and domestic judicial officials, and U.N. control over the roster of available foreign legal personnel.43 By contrast, the MoU—which the RGC refers to as the proposed Articles of Cooperation and never actually signed—deals with the distinct matters of foreign financial and technical support.44
The U.N.’s second major problem concerns limitations on suspects’ right to counsel.45 While Article 24 of the U.N. Draft Statute [*PG154]grants suspects a right to counsel of their own choice, the corresponding article in the tribunal law refers only to a suspect’s right to assistance of counsel.46 Practically speaking, the tribunal law’s omission of the phrase “of their own choosing” means that foreign defense counsel cannot personally appear before the Extraordinary Chambers to mount a defense on behalf of a suspect.47 However, a countervailing factor substantially mitigates this limitation on the involvement of foreign defense counsel in the Extraordinary Chambers.48 On a general level, the tribunal law does guarantee an unconditional right to assistance of counsel and allows suspects to retain any domestic lawyer they desire.49 More specifically, foreign defense counsel can have a meaningful role in the proceedings by acting as advisors to Cambodian defense counsel.50
The U.N.’s third major problem relates to the procedural standards that will form the basis of the Extraordinary Chambers’ deliberations. Article 33 of the U.N. Draft Statute mandates a prominent role for international procedural standards by stating that “[g]uidance may also, as necessary, be sought in procedural rules at the international level.”51 By contrast, the corresponding article of the tribunal law opines that “[i]f necessary, and if there are lacunae (gaps) in these existing procedures, guidance may be sought in procedural rules at the international level.”52
Despite the U.N.’s assertions to the contrary, the language difference is far from a rejection of international procedural standards and an entrenchment of inadequate domestic procedure.53 First, the procedures for judicial decision-making and the resolution of prosecutorial and investigatory judge disputes outlined above contain clear protections for foreign participation and prevent Cambodian court officials from acting unilaterally.54 Second, Article 35 of the tribunal law already [*PG155]provides the procedural guarantees of trial fairness required by international law (presumption of innocence, right against self incrimination, examination of prosecution evidence, trial without delay, etc.).55 Finally, Article 33 acknowledges an important role for international procedural standards by establishing them as a benchmark that the Extraordinary Chambers can consult in areas where the established procedures provide minimal or unsatisfactory guidance.56
The U.N.’s fourth major problem with the tribunal law involves limitations on the Secretary General’s ability to appoint personnel and fill vacancies.57 While Article 31 of the U.N. Draft Statute states that the Deputy Director of Administration—the official in charge of recruiting international staff—must be appointed by the Secretary General, Article 31 of the tribunal law stipulates that the Secretary General must nominate candidates for the Deputy Director post with the RGC authorities making the formal appointment.58 The tribunal law also omits references to the Secretary General’s role in filling foreign vacancies as they arise that appear in Articles 12, 21, and 27 of the U.N. Draft Statute.59 Yet a careful reading of other articles in the tribunal law reveals that the U.N.’s complaint about limited appointment power is the least meritorious of its objections.60 Articles 11, 18, and 26—which concern the selection of foreign officials—expressly recognize the U.N. as the sole source of foreign legal personnel and confine international appointments and replacements only to those candidates on the lists provided by the Secretary General.61 Article 46 further reinforces the U.N.’s control over foreign appointments by stating that the RGC can only fill foreign vacancies on its own under the extraordinary circumstance that the candidates on the Secretary General’s lists and the candidates offered by U.N. member state governments are unable to serve.62
The U.N.’s fifth, and potentially most powerful, objection relates to pardons and amnesties as barriers to prosecution.63 The U.N. points out that Article 40 of the tribunal law only requires that the Cambodian government not request a royal pardon or amnesty for any suspects subsequently convicted of offenses within the jurisdiction of the tribunal, and it does not limit the King’s ability to grant amnesties or pardons on his own.64 Additionally, the U.N. notes that Article 40 is silent on the issue of whether an individual who has already received an amnesty or pardon can escape prosecution in the Extraordinary Chambers.65 According to the U.N., the absence of such language suggests that KR foreign minister Ieng Sary—who was granted a pardon for a 1979 genocide conviction and an amnesty for his membership in the KR via a 1996 Royal Decree—may be immune from prosecution.66
The first contention is not persuasive because it fails to recognize both the legal limitations on the King’s ability to grant amnesties and the practical restraints on his constitutional authority to grant pardons.67 As the founder of Legal Aid in Cambodia has noted, the constitutional provision regarding amnesty and pardons translates as “lifting guilt,” implying that the King’s power is limited to post-conviction pardons.68 Additionally, in light of substantial popular support for bringing KR leaders to justice, the King has ruled out royal immunity for KR officials other than Ieng Sary.69
The second contention also fails on purely legal grounds.70 As the founder of Legal Aid in Cambodia has also argued, Sary’s 1996 pardon is not a bar to prosecution because his 1979 genocide prosecution was not valid.71 Because Sary was tried in absentia by a Vietnamese-installed puppet government, his trial and conviction—and thus the voiding of [*PG157]the conviction—had no operative legal effect.72 Even assuming the pardon’s legitimacy, however, its wording leaves Sary open to prosecution for genocide and crimes against humanity committed during the 1975–79 period because the granted immunity arguably only applies to post-1979 acts.73 Alternatively, Sary’s pardon could be circumvented on the grounds that the definition of genocide employed in the 1979 trial was considerably different from the definition appearing in international conventions.74 Additionally, it would be difficult for Sary to hide behind the amnesty component of the 1996 Royal Decree because Article 6 of the 1994 Law Outlawing the Democratic Kampuchea Group (DK Law) expressly prohibits amnesty for KR leaders.75 Furthermore, assuming that somehow Sary could escape categorization as a “leader,” his amnesty for membership in the KR would still be ineffective based on the constitutional limitations discussed above.76
Finally, Sary’s case for immunity from prosecution fails even if one assumes that the King has the legal power to grant amnesty and that Sary would not qualify as a leader for Article 6 purposes. As a matter of scope, the amnesty provision of the DK Law arguably covers only the crime of membership in the KR itself.77 Thus, Ieng Sary would be not be safe from prosecution for crimes such as murder, abductions, and illegal confinement.78 Furthermore, a recent Phnom Penh Appeals Court ruling has limited the reach of the DK Law amnesty provision to the period preceding the law’s enactment in July 1994.79 Therefore, even under the further assumption that the amnesty provision went beyond membership to include serious criminal offenses, Ieng Sary would not be shielded for his last two years with the KR.80
About a year after the Secretary General’s February 2002 decision to terminate tribunal negotiations, the General Assembly passed a resolution that strongly urged an immediate resumption of talks with Cambodian authorities.81 Reacting to this clear direction from the General Assembly, a U.N. delegation restarted negotiations with Cambodian representatives in January 2003, and the Secretary General then dispatched a small team to Phnom Penh in March 2003 to continue talks.82 On March 17, 2003, representatives from both sides initialed a draft agreement concerning cooperation between the U.N. and the Cambodian government in the establishment of the Extraordinary Chambers, and in early June these representatives formally signed the agreement.83 The agreement will not be formally binding unless both the General Assembly and the Cambodian parliament ratify it, and review on the Cambodian side is not likely to occur before late Fall 2003.84
What appears as an apparent breakthrough, however, is actually full of roadblocks that the Secretary General has placed in the path of a successfully formed tribunal with international involvement.85 In his report to the General Assembly providing background on the resumed negotiations and explaining the draft agreement, the Secretary General indicates that the decision to resume negotiations was not motivated by willing re-engagement on the part of the Legal Affairs Office, but by grudging acquiescence to several member states that insisted that the terms of the tribunal law serve as the basis for the negotiation.86 Additionally, the Secretary General uses the report [*PG159]as an opportunity to rehash his objections to the hybrid domestic/foreign structure of the tribunal and to reiterate his belief that the Extraordinary Chambers in their currently contemplated form would not meet international standards of justice.87
More ominously, the Secretary General notes that the draft agreement contains a provision allowing the U.N. to withdraw cooperation if it determines that the Cambodian government is not fulfilling its obligations under the agreement.88 Thus, the U.N. has granted itself the right to abandon the tribunal formation process by unilateral action, setting up a repeat of the February 2002 pullout.89
The tribunal law passed by the Cambodian legislature in August 2001 complies with substantive principles of international justice and ensures independence and objectivity by requiring international participation in every crucial phase of the tribunal’s operation. By terminating negotiations because of formalistic objections, and then restarting talks with renewed opposition to the tribunal’s basic structural formula and the reservation of a right to opt out, the U.N. has raised the prospect that trials of KR leaders will occur without any foreign involvement. Instead of throwing away years of painstaking work, the U.N. should drop its objections and right of unilateral withdrawal, so that it can fully assist the RGC in calling KR leaders to account for their heinous crimes against the Cambodian people.