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Searching for the
truth. Number 40. April 2003.
DEBATE SECTION (A)
Magazine of
Documentation Center of Cambodia (DC-Cam) – Khmer version.
For additional
information about DC-Cam, please visit http://www.dccam.org/
Brief Comments Regarding the Draft
Agreement between
the United Nations and the Royal
Government of Cambodia
By
John D.
Ciorciari
The draft agreement between the Royal Government of
Cambodia (RGC) and United Nations dated March 17, 2003 represents a major step
toward the creation of a tribunal for the prosecution of certain former Khmer
Rouge officials. Thus, the draft
represents substantial progress toward the aim of establishing legal
accountability for the crimes of Democratic Kampuchea. Victims of the Khmer Rouge regime have
awaited justice for over 24 years, while some of the chief architects of the
regime’s terror—including Son Sen and Pol Pot himself—have passed from the scene
with nearly unfettered impunity.
Some of the other principal suspects now live comfortably in villas while
the families of their estimated two million victims continue to wait for some of
the most basic and universal laws to be applied.
The draft agreement is not a perfect instrument for
addressing the crimes of the Pol Pot regime. The agreement contains significant
deficiencies, and they demand concerted attention. The following are some of the principal
areas in which the agreement requires modification or supplementation:
Article 2 does not clarify the precise relationship between
the draft agreement and the 2001 Law on the Establishment of the Extraordinary
Chambers.
Article 7 does not describe how the tribunal will function
if a decision by super-majority cannot be achieved with respect to certain
motions that demand a decision.
(Suzannah Linton has rightly argued that a decision on the court’s
jurisdiction over Ieng Sary could encounter this problem.)
Article 9 of the agreement appears to violate the principle
of nullem crimen sine lege by invoking the ICC definition of crimes
against humanity (although Article 9 also refers to the definition of the same
crime in the Law on the Establishment of Extraordinary Chambers, which does not
appear to violate the nullem crimen principle).
The agreement fails to specify the range of defenses
available to the defendants.
The agreement does not specify how the tribunal will work
with local Cambodian criminal justice officials and international bodies for
issues such as witness protection and local capacity building.
The agreement leaves some of the rules of evidence and
procedure unclear.
These problems are manageable in scale, and they should not
derail progress toward creation of the planned tribunal. Considering all relevant circumstances,
they are not great enough to prevent the UN General Assembly from approving the
draft agreement. The UN and RGC
will need to work closely to address these and other specific issues after the
agreement is concluded, and as soon as practicable, the parties should undertake
a binding pledge to address such matters in good faith as the tribunal
approaches. If RGC cooperation is
not forthcoming, and that non-cooperation changes the structure, organization,
or functioning of the tribunal in a way that does not conform to the terms of
the draft agreement—such as its provisions on witness protection, the rights of
defendants, and the cooperation between local officials and the tribunal—the
United Nations retains the right to withdraw its participation under Article
28.
Some analysts strongly disagree with the foregoing
recommendations, arguing that the draft agreement fails to ensure that the
tribunal meets international standards of justice. Amnesty International argues that the
agreement has “serious deficiencies…that reflect a significant retreat from
current international law and standards” and that “the deficiencies in the draft
are so serious…that Amnesty International would oppose the United Nations
signing the agreement without major revision.”
This and similar critiques are premised partly on the
specific problems outlined above.
However, they appear to be guided more by concerns over who “controls”
the tribunal and an abiding suspicion of the Cambodian government and
judiciary. Brad Abrams, head of the
Asia Division of Human Rights Watch, stated that concern bluntly in his comments
on the draft agreement: “Hun Sen must be very pleased; he can control
everything. No Cambodian judge or
prosecutor is going to act without his permission.” Amnesty International adds that: “the
Cambodian judicial system is weak and subject to political pressures, especially
in high-profile cases. It is
therefore currently unable to ensure that such trials are conducted in a manner
that would conform to international standards of fairness.”
It is certainly appropriate to subject the actions of
Cambodian (and international) officials to public scrutiny, and concerns about
potential corruption or bias are not unfounded. Putting significant procedural
safeguards in place is essential, as the major human rights organizations
rightly emphasize. However, critics
of the RGC should avoid concluding in advance of a tribunal that Cambodian
judges and officials cannot be trusted.
By announcing that the Cambodian judiciary is unreliable and taking all
possible measures to minimize its room for maneuver, critics of the proposed
tribunal would deny RGC participants the opportunity to contribute meaningfully
to the search for justice.
A Khmer Rouge tribunal is partly about the past, about
justice for the horrific wrongs committed by the Pol Pot regime. Strong foreign involvement in the trials
is important in ensuring that justice is done and in reducing concerns of
judicial impropriety. However, the
tribunal process is also about the future and the construction of a rule of law
in Cambodia. For better or for
worse, the future of Cambodia’s legal system lies predominantly in Cambodian
hands. The more that the trials are
perceived to be dominated by foreigners, the less opportunity that local actors
will have to establish their own trustworthiness and secure greater public
confidence. For example,
international trials in The Hague could deliver justice for the crimes of the
Khmer Rouge, but they would implicitly assert that the Cambodian judicial system
is unfit to adjudicate the crimes that took place on the nation’s own soil
between 1975 and 1979.
International law might triumph in the courtrooms of the Peace Palace,
but Cambodians would feel little added confidence in the legal organs governing
their own neighborhoods.
After 24 years in a holding pattern, Cambodians need to see
that their government is capable of administering real justice. Foreign investors, who offer promise for
the future economic development of Cambodia, also need evidence that Cambodia’s
judicial system is regaining competence and credibility. For the rule of law to take firm hold in
Cambodia, and for human security conditions to improve, public and international
confidence in the legal system is imperative. This objective must be carefully
balanced with the more immediate goal of securing credible justice for the
atrocities of Democratic Kampuchea.
Both the United Nations and the RGC have indispensable roles to play in
administering justice in Cambodia.
There is no objective manner to determine what constitutes
the optimal division of Cambodian and UN roles in the accountability
process. By requiring
super-majority decisions, employing local and international investigators and
prosecutors, and giving the United Nations the right to withdraw support if the
RGC fails to cooperate (Article 28), the draft includes significant provisions
designed to ensure that the tribunal meets international standards. By creating a large role for Cambodians,
the agreement also gives the RGC an opportunity to establish that it can be
trusted with issues of law and justice.
After several years of negotiation, this is the basic balance that the
two parties struck, and should the draft agreement be rejected, the opportunity
to try aging members of the Pol Pot regime may not come again.
The most severe critics of the draft agreement insist that
the UN General Assembly should not sign it unless major changes are made. Concerned that a trial would be unfair
and damage the reputation of the United Nations, they would prefer to see
continued negotiations—or perhaps an end to them. They argue quite reasonably that the
danger of accepting the current draft is that the RGC will prevent the tribunal
from achieving international standards of justice, perhaps even necessitating a
UN withdrawal. If the RGC elects to
defy international public opinion and the spirit of the draft agreement, that
result is indeed conceivable.
However, at this stage of negotiations, and at this stage in the lives of
the elderly defendants, the risk of rejecting the draft agreement is even
greater—that the United Nations and Cambodian government would hold no trials at
all. That outcome would be certain
to leave the untried crimes of Democratic Kampuchea as a scar on the reputation
of the United Nations and an open wound on Cambodia’s future.
John D. Ciorciari (Harvard A.B., J.D., Oxford M.Phil.,
D.Phil. cand.) is the Wai Seng Senior Research Scholar at the Asian Studies
Centre, Oxford University. He
teaches international politics and law at Oxford University with a focus on the
Middle East and Southeast Asia. He
has published numerous articles on topics of international criminal law and has
advised the Documentation Center of Cambodia since 1999.
Searching for the truth. Number 40. April 2003.
DEBATE SECTION
Magazine of Documentation Center of Cambodia (DC-Cam) –
Khmer version.
For additional information about DC-Cam,
please visit
www.dccam.org
COMMENTS ON THE
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
By Suzannah
Linton
Before commencing on this assessment of the
agreement, I must confess that as a foreign observer, I am torn between being
happy for Cambodians that they will finally have some accountability for the
utter depravity and suffering caused in the Democratic Kampuchea era and at the
same time being deeply disturbed that a third rate compromise is all that they
have been given. Yet, given that
this is what has been agreed after so much trouble, the best way forward must
surely be to make the most of it. I
therefore offer these comments with best intentions.
Stakeholders and interested parties must do
whatever is possible to ensure that this mechanism of accountability brings a
modicum of justice to Cambodia and to harness the opportunity of the trials to
develop a complementary strategy for desperately needed social repair. Expectations must be realistic. All the wishful thinking in the world is
not going to enable the trials of a handful of elderly Khmer Rouge on their own
to provide sudden repair to the damage that continues to eat away at Cambodian
society. Civil society has a
particularly important role in providing support to, but at the same time being
a watchdog of, the Extraordinary Chambers project. It also has a vital role in pressuring
the Royal Government (‘RGC’) and the United Nations (‘UN’) to design and
implement the many supporting programmes that will be needed, such as witness
protection, psychiatric care, public debate and information/outreach.
Overall, the agreement is an improvement on
the earlier draft Memorandum of Understanding. But the core problem is still there,
namely the integrity of the process arising from the basic concept of mixed
nationality chambers controlled by Cambodian personnel making decisions on the
basis of a highly irregular voting mechanism, with two co-investigating judges
and two co-prosecutors essentially running separate offices, whose disagreements
on investigation and prosecution are to be settled by a panel of judges. Current Cambodian criminal procedure law
continues to apply. There remain no
provisions for reparations, which is an important issue given that the former
Khmer Rouge leaders control significant resources while most Cambodian survivors
of their rule live in abject poverty.
These matters are not to be papered over with more words about respect
for basic norms of human rights – there are already enough such pledges in the
Cambodian Constitution and in the Law on Extraordinary Chambers. Unfortunately, the reality is that these
fine words are not being implemented in the Cambodian justice system. There is little point in stressing that
the key officials are not to take instructions from any Government or outside
source if there is no way to enforce that prohibition. In addition, whether or not it was
feasible within the timeframe that the parties had, this agreement is haunted by
a number of important missed opportunities that could have substantially
strengthened the process. And, as
Amnesty International has pointed out, the capacity building element of this
project is minimal. This is a
one-off exercise with no eye on developing the capacity of the Cambodian
judicial system.
NGOs have highlighted the potential problem
with control of the tribunal being in the hands of Cambodian personnel, given
the degree of political influence over them and their professional
weaknesses. This situation remains unchanged – Cambodian judges will
control the process and the weighted majority formula called the ‘Super
Majority’ applies. The quality of
personnel is going to be the factor that makes or breaks the tribunal’s
contribution to Cambodia if, as surveys suggest, people want a quality process
that meets international standards.
On the other hand, if Cambodians are actually simply interested in the
spectacle of seeing the leaders of Democratic Kampuchea in the dock, then the
quality of the personnel or the process is not relevant to them. But I believe that Cambodians want much
more than the mere spectacle of a legal process – they want a quality process
that is worthy of the losses they have suffered. Here civil society has an enormous role
to play in lobbying to ensure that only the finest, most ethical and principled
Cambodian jurists are selected to take part. The same must be said for the candidates
put forward by the UN. Cambodians
have every right to demand that the UN designates only top class international
personnel with the necessary experience and unquestionable integrity to the
Extraordinary Chambers.
To begin with the less controversial matters,
the removal of the appeal court and reduction of the number of judges on the
Supreme Court are to be welcomed.
The three layer model reflected the structure of Cambodian courts, was
cumbersome and would have been unnecessarily costly, given that at the top
layer, nine judges were envisaged.
The new agreement is that there will be two chambers – a Trial Chamber
comprised of three Cambodians and two internationals, and a Supreme Court
comprised of four Cambodians and three internationals.
A number of practical amendments like
provision for reserve international prosecutors and investigating judges have
been made – these are helpful.
There has also been clarification of the role of the Office of
Administration, which is also welcome. The office is meant to “service the
Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges and
the Prosecutor’s office” (Article 7(1)).
But it is still not clear if these services include being responsible for
witness protection, accused protection, security in the court, filing and
circulation of documents, transcription, translation, public information,
outreach etc. One would assume so but given the lack of experience with
this sort of thing in Cambodia, it would have been helpful for the agreement to
have at least spelt out more explicitly what the job of the Office of
Administration actually is. Apart
from the designated international personnel – the judges, one co-investigating
judge plus reserve, one co-prosecutor plus reserve, the deputy director of the
Office of Administration and deputy prosecutors – it is still not clear if there
will be other international involvement in day to day work. For example, can skilled international
investigators with ICTY or ICTR experience be recruited to assist the
co-investigating judges or are all the investigators to be from the Cambodian
police? What about international
legal advisors with specialist expertise in the subject matter?
The UN has dropped its earlier provision
which essentially stated that if-we-don't-get-the-money-we-are-backing-out,
contained in Article 26 of the draft Memorandum of Understanding. This
indicates that it has had behind the scenes guarantees of complete funding for
its involvement in the project. Various technical points which really were
to do with the UN’s internal management of its contribution to the project, such
as the Trust Fund, have also been removed from the agreement. And, in light of the troubled
history of relations between the UN and the RGC, Article 28 on withdrawal of
cooperation is to be expected. This
article provides that should the RGC “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, the United Nations
reserves the right to cease to provide assistance, financial or otherwise,
pursuant to the present Agreement”.
There is potentially a problem with Article 9
in the draft agreement which I have examined. It says that the Crimes against Humanity
definition of the Rome Statute of the International Criminal Court (‘ICC’)
applies. Either this is a typographical error or the UN and RGC have
agreed to change the definition used in the Law on Extraordinary Chambers. The definition in the law itself is akin
to the definition of the Statute of the International Criminal Tribunal for
Rwanda (‘ICTR’) with its use of discriminatory intent as a requirement for all
Crimes against Humanity and not just persecution. The problem with using the Rome Statute
definition is that the crimes which are to be adjudicated by the Extraordinary
Chambers took place between 1975-1979.
The definition of Crimes against Humanity agreed in 1998 for the ICC was
a progressive one that advanced the definitions used in both the ICTR Statute
and that of its sister tribunal, the International Criminal Tribunal for the
former Yugoslavia (‘ICTY’). It is a cardinal principle of human rights law that
a person can only be tried, convicted and punished on the basis of conduct that
was criminal at the time the act was committed. However, I suspect this is simply a
typographical error as Article 2 of the agreement states that the agreement
recognises the subject latter jurisdiction as set out in the Law on
Extraordinary Chambers, with no comment about changing the definition of Crimes
against Humanity.
Not surprisingly, the UN and RGC have agreed
to wash their hands of the amnesty/pardon issue. They have passed the buck to the
judges. Article 11 repeats the terms of the Law on Extraordinary Chambers
(“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”). It also
adds a sub-clause that crystallizes the RGC’s statement that only one person has
received a pardon in relation to a 1979 conviction on genocide, and the parties
agree that the scope of this pardon is a matter to be decided by the
Extraordinary Chambers. Nuon Chea
and Khieu Samphan were never convicted so they were never pardoned, and they did
not get a legally recognized amnesty from prosecution. The government is now bound not to seek
an amnesty from prosecution for them and it is unlikely that the King would draw
on his Constitutional powers without such a request. It would therefore seem that the road is
theoretically clear to prosecute them.
But the controversy about Ieng Sary will run
and run. The following seems a very
likely scenario. The international
co-investigating judge will want to investigate Ieng Sary and the Cambodian will
not. Article 5(4) of the UN-RGC agreement says that if they don’t agree
they have to proceed with the investigation, unless one of them refers it to a
pretrial chamber. Let us assume it is referred to the chamber. Assume the Cambodian judges behave the
way that is anticipated and say no investigation of Ieng Sary is possible by
international human rights standards and Cambodian law because he was lawfully
pardoned, cannot be tried again for what he has already been convicted of.
The two international judges would be most likely to take the standard
international community position on the 1979 trials and say that the conviction
was the result of an illegitimate process that has been near universally
rejected as a show trial. They
would vote for the investigation to proceed. All judicial decision-making is to be by
Super Majority, which means that one of the international judges must agree with
the Cambodian judges. So, there
will be no Super Majority. This means that under Article 7(4), the investigation
or prosecution will proceed. The case will go forward and if there is
indeed the hard evidence, Ieng Sary will be indicted. Once indicted/charged, he would probably
challenge the jurisdiction of the court (as is his right, and the court should
not say the issue has been decided already because the previous decision was
only applicable to the investigations and this time it is challenged by the
accused), saying he was convicted and pardoned and it is a fundamental violation
of his rights to try him again. This time the matter goes to the Trial
Chamber itself, which will also have to decide on the basis of the Super
Majority. But at this level, there is no equivalent of Article 7(4) to say
that the case must proceed if the judges cannot agree on a supermajority. What happens if the three Cambodians say
the court has no jurisdiction over Ieng Sary because of the pardon and the two
internationals say it does? The
Super Majority provision means that without the affirmative vote of four judges,
the chamber cannot make a decision.
This could lead to the extraordinary situation where the court simply
cannot issue a decision that says yes or no on the question of whether Ieng Sary
is immune from prosecution because of the pardon.
It is good to see some strengthening of the
fair trial and due process provisions. But these are just more words
to complement those already in the Law on Extraordinary Chambers (Article 35 of
which repeats Article 14(3) of the International Covenant on Civil and Political
Rights) and the Cambodian Constitution.
The challenge for those working on judicial reform in Cambodia has always
been to get fine words implemented in Cambodian courts. As anyone who has
worked with Cambodian judges and prosecutors will confirm, they do not like
working with general principles of the kind that require them to “exercise their
jurisdiction in accordance with international standards of justice, fairness and
due process of law” (Article 12(2)).
They like ‘black and white letter law’, technical rules that spell out
exactly what they should or should not do.
They are extremely unwilling to involve themselves in legal
interpretation or extracting practical rules out of abstract concepts. And, in the confused state of Cambodian
criminal procedure law, internationals and Cambodians can be expected to have
major disagreements on the procedure to follow. The internationals will
probably be inclined towards the law drafted by UNTAC (1992 Supreme National
Council Decree on Criminal Law and Procedure); the Cambodians will probably say
that the SOC Law (1993 State of Cambodia Law on Criminal Procedure) is the one
to be followed. In the background there will be mutterings about the
French Penal Procedure Code and the Cambodian Constitution. Thus, it is a real shame that the UN and
RGC did not explicitly agree to adopt special rules of procedure based on those
of the ICTY, ICTR or even the ICC. The UN was able to agree with the
Sierra Leone Government that the ICTR rules of procedure and evidence would
apply mutatis mutandis to proceedings at the Special Court but the judges would
be able to adapt them as necessary.
The judges (local and foreign nationals) have already adapted those rules
to fit their particular circumstances and the first appearances by accused
before the Special Court took place a week ago. Given the circumstances, it is not at
all helpful for the UN and RGC to have left it hanging in the air with a phrase
like "[w]here Cambodian law does not deal with a particular matter, or where
there is uncertainty regarding the interpretation or application of a relevant
rule of Cambodian law, or where there is a question regarding the consistency of
such a rule with international standards, guidance may also be sought in
procedural rules established at the international level". Who decides what that
guidance is to be? Going to the judges, whose hands are tied by the Super
Majority requirement, may not help.
Sometimes one needs more considered interpretation, advice or guidance
and not just a yes or no answer.
One particularly serious missed opportunity
in this agreement is to do with witness protection and care. Article 23 has been amended but remains
weak: The co-investigating judges, the co-prosecutors and the Extraordinary
Chambers shall provide for the protection of victims and witnesses. Such protection shall not be limited to
the conduct of in camera proceedings and the protection of the identity
of a victim or witness. After all
the UN’s experience with victims and witnesses at the ICTR and ICTY, which has
left it with a pool of staff having a wealth of expertise that could be so
usefully shared with Cambodia, one would have thought it could have taken
responsibility for witness protection or at least committed itself to providing
substantial assistance to Cambodia.
Instead, the responsibility for witness protection is placed on the
co-investigating judges, the co-prosecutors and the Extraordinary Chambers with
no mention of any particular role for the UN. So is each of the named parties to
design their own mini witness protection programme? Are the Cambodian police obliged to
assist in all of this? And, it is
not just about witness protection, witness care should also be part of the
package - retraumatisation is a very real danger that arises from testifying
about horrifying atrocities and personal losses and counselling services are
absolutely vital. Surely it is not
too late for the UN to give a commitment to assist its Cambodian counterparts in
setting up a Victims and Witnesses Unit and provide it with qualified
staff?
The provision that legal counsel will be
provided if the accused cannot pay has not been altered in this new UN-RGC
agreement, and counsel retain their privileges and immunities. An
important addition is the provision that the accused has the right to choose his
own counsel – which means that foreign lawyers may represent the accused. The accused is no longer limited to
Cambodian lawyers. However, the
freedom of choice really only applies if the accused is able to pay his own
legal costs; if he cannot, he will be limited by the rules of the body that pays
the legal costs. For example, at
the ICTY and ICTR, indigent accused (those who cannot pay for their own costs)
may only choose counsel from a list provided by the Registrar of the court who
is the paymaster on behalf of the UN.
But the UN and RGC have not addressed the issue of who is going to pay
for international or local counsel and provide them with adequate means with
which to do their job of defending their clients. What if they need
to travel to countries like China and Vietnam to conduct intensive
investigations? What if they need
to have large quantities of documents translated? Who will pay for foreign counsel to have
translators through whom they may communicate with their clients? What assistance can the Extraordinary
Chambers provide to defence counsel seeking to obtain documents that parties
refuse to surrender to them?
The Office of Administration is not made responsible for assisting
defence counsel - it helps everyone else including one of the parties (the
prosecution) - but not the other party, the defence. The RGC helps everyone else with office
premises, but not defence counsel.
So, despite the one change, there still seems to be no equality of arms
between the parties as required by International Law.
And, the new agreement has still not
clarified the question of the defences that can be raised in these trials.
Cambodia’s current criminal procedure laws, which will apply to the KR Tribunal,
do not contain any provisions on defences although the UNTAC Code identifies
factors that can mitigate sentence.
So what about the 1956 Code which seems to have still be the applicable
law in Cambodia during the Democratic Kampuchea era even though it was not
applied? And International Law?
It is very worrying that accused persons may go to trial not even knowing
what defences they are able to rely on, and in which body of law they are to
found them. Clarifying this matter
would have made a far greater contribution towards fair trial at the
Extraordinary Chambers than adding a few more words about the International
Covenant on Civil and Political Rights, as was done in Article 12 on
procedure. The judges of the
International Criminal Court have had almost all the substantive legal issues
worked out in advance for them through the court’s Statute, Rules of Procedure
and Evidence and a document called Elements of Crimes. If ever there was a court that should
not be left to its own devices in crucial and complex matters such as
identifying the amorphous content of Cambodian and International Law between
1975-1979 or interpreting general principles of law, it is these Extraordinary
Chambers. Thus, it seems very
strange that substantive issues such as the defences that will apply have not
been worked out in advance.
Finally, given the fuss about the status of
the UN-RGC Memorandum of Understanding, it is surprising that this new agreement
still does not clarify how it formally relates to the Law on Extraordinary
Chambers, i.e. the exact legal status and hierarchy between the two. Which
should the court look at – the Law on Extraordinary Chambers or the UN-RGC
Agreement? It is a bilateral
agreement, expressed in very mild terms as simply regulating the cooperation
between the UN and ROC on the trials, which is to become law in accordance with
normal ratification procedures in Cambodia. But in substance it obviously goes much
further with its many substantive provisions on rights of the accused, amnesty,
procedure etc, and it of course requires changes to a valid Cambodian law. Article 2 recognizes only a few things
in the Law on Extraordinary Chambers - subject matter and personal
jurisdiction – leading one to ask if the rest of the law is not recognised? It skirts around the issue of what to do
with the Law on Extraordinary Chambers – no matter what the legal position, as a
result of this agreement Cambodia will surely either have to amend the Law on
Extraordinary Chambers directly or do it via the law approving the agreement.
And what if there is a conflict
between the two laws? The
underlying problem is that the UN and RGC have agreed that certain changes have
to be made to a valid Cambodian law passed by the legislature, which was not a
party to this agreement. Of course the legislature will probably agree at
the end of the day, but the ritual requires pretending that it is not just going
to be rubber-stamped (it will be very interesting if they refused to pass
it!).
Suzannah Linton practices International
Law and has worked on accountability for gross violations of human rights in
many countries, as well as at the International Criminal Tribunal for the former
Yugoslavia. She worked in Cambodia in 2001/2002, has published several
legal studies on accountability for the Democratic Kampuchea era and is
currently working on a national reconciliation project with the Documentation
Center of Cambodia.
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
WHEREAS the General Assembly of the United Nations, in its
resolution 57/228 of 18 December 2002, recalled that the serious violations of
Cambodian and international humanitarian law during the period of Democratic
Kampuchea from 1975 to 1979 continued to be matters of vitally important concern
to the international community as a whole;
WHEREAS in the same resolution the
General Assembly recognized the legitimate concern of the Government and the
people of Cambodia in the pursuit of justice and national reconciliation,
stability, peace and security;
WHEREAS the Cambodian authorities have
requested assistance from the United Nations in bringing to trial senior leaders
of Democratic Kampuchea and those who were most responsible for the crimes and
serious violations of Cambodian penal law, international humanitarian law and
custom, and international conventions recognized by Cambodia, that were
committed during the period from 17 April 1975 to 6 January 1979;
WHEREAS prior to the negotiation of the present Agreement
substantial progress had been made by the Secretary-General of the United
Nations (hereinafter, "the Secretary- General") and the Royal Government of
Cambodia towards the establishment, with international assistance, of
Extraordinary Chambers within the existing court structure of Cambodia for the
prosecution of crimes committed during the period of Democratic Kampuchea;
WHEREAS by its resolution 57/228, the General Assembly welcomed
the promulgation of 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 and requested the Secretary-General to resume
negotiations without delay, to conclude an agreement with the Government based
on previous negotiations on the establishment of the Extraordinary Chambers
consistent with the provisions of the said resolution, so that the Extraordinary
Chambers may begin to function promptly;
WHEREAS the Secretary-General and the Royal Government of Cambodia
have held negotiations on the establishment of the Extraordinary Chambers;
NOW THEREFORE the United Nations and the Royal Government of Cambodia
have agreed as follows:
Article 1
Purpose
The purpose of the present Agreement is to regulate the cooperation
between the United Nations and the Royal Government of Cambodia in bringing to
trial senior leaders of Democratic Kampuchea and those who were most responsible
for the crimes and serious violations of Cambodian penal law, international
humanitarian law and custom, and international conventions recognized by
Cambodia, that were committed during the period from 17 April 1975 to 6 January
1979. The Agreement provides, inter alia, the legal basis and the
principles and modalities for such cooperation.
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