Global Policy Forum

By Philip Shenon

The United Nations has developed detailed plans for a joint war crimes tribunal in Cambodia in which Cambodian and foreign judges would try former political and military leaders of the Khmer Rouge in a single trial, U.N. and Clinton administration officials said Wednesday. U.N. lawyers came up with the plan after the Cambodian government rejected an earlier proposal to try Pol Pot's former associates in a fully independent international tribunal like those created to deal with war crimes in the Balkans and Rwanda.

According to internal U.N. documents proposing the joint tribunal, Secretary-General Kofi Annan would select an independent prosecutor and the international judges, while the Cambodian government would select the Cambodian judges. Under the U.N. plan, the court would have either five judges, two of them Cambodian, or seven judges, three of them Cambodian -- a composition insuring that the Cambodian judges could always be outvoted by their foreign counterparts.

Prime Minister Hun Sen is likely to resist some elements of the U.N. plan, especially the requirement that foreign judges outnumber Cambodian judges. His foreign minister, Hor Nam Hong, said Wednesday in parliament that the government would reject such a provision. The documents, prepared by Ralph Zacklin, assistant secretary-general for legal affairs, call for a single joint trial of all the Khmer Rouge leaders who remain in Cambodia, a prosecutorial strategy that is "the one likely to have the most profound moral and educational effect on the Cambodian society."

The plan for a joint tribunal is expected to be presented to Hun Sen when U.N. lawyers visit there, possibly late this week. Hun Sen, a former low-level Khmer Rouge soldier who defected from the organization in 1977, has suggested in recent months that he would accept the idea of Cambodian and foreign judges' sharing responsibility for the trial. U.N. officials said Wednesday that they were not worried by his objections, suggesting they were an effort to stake out Hun Sen's early -- but not final -- position in negotiations with the U.N. lawyers. If Hun Sen does accept the plan in some form, U.N. officials said, some of the 20th century's worst mass murderers could be brought to justice in a Cambodian courtroom as early as next year, with foreign prosecutors and judges having at least a large degree of control over the proceedings.

More than a million Cambodians died -- from execution, torture, disease or hunger -- under the Khmer Rouge government that controlled Cambodia from 1975 to 1979. Clinton administration officials say they have been presented with the outline of the plan and are weighing whether the United States would support the joint tribunal by providing money and staff. "At first glance, this has some promise," an administration official said. "But we'd want lots of safeguards built into this process to prevent Hun Sen from trying to turn this into show trials or some other sort of sham."

Human rights groups also expressed caution. "A so-called mixed tribunal in Cambodia is an idea worth pursuing, but only with adequate guarantees built in," said Mike Jendrzejczyk, Washington director of Human Rights Watch Asia. "A tribunal that would in any way be controlled by the Cambodian government would not have legitimacy." U.N. documents say that the court would be established under Cambodian law, not international law. The documents were made available on condition that their source not be identified. "It would be a Nuremberg-type trial in which the Khmer Rouge political and military leadership is tried jointly," according to a memo prepared last month by the U.N. legal office. "A joint trial would be legally sound, politically effective, administratively and financially cost-effective and of high moral and educative value."

Zacklin's memo said that the United Nations should demand that the Cambodian government provide "viable guarantees" that "all Khmer Rouge leaders presently on Cambodian territory are arrested by the Cambodian government and surrendered to the tribunal." Pot Pot, the leader of the Khmer Rouge, died last year, an event that effectively signaled the collapse of the Khmer Rogue as a guerrilla threat. But many of his senior deputies and military commanders are still alive, including Ta Mok, a one-legged general known as the Butcher, who was captured earlier this year.

Cambodian prosecutors had faced a Sept. 9 deadline for the start of his trial, but the Cambodian parliament voted Wednesday to allow a delay of up three years in the trials of former Khmer Rouge leaders and others charged with genocide or crimes against humanity. Human rights groups have warned that unless there is quick action to create a tribunal, Cambodia could lose its chance to bring Khmer Rouge leaders to justice, especially given the advanced age and poor health of many suspects.

A group of legal experts working for the United Nations recommended earlier this year that senior Khmer Rouge leaders be tried at an independent international tribunal, outside the control of the Cambodian government. But Hun Sen quickly rejected the proposal as a violation of Cambodia's sovereignty. U.N. and Clinton administration officials who have dealt with Hun Sen say he fears that a fully independent tribunal might turn its attention to his own past actions and those of other Khmer Rouge defectors who are now in the Cambodian government. There has never been any serious accusation that Hun Sen was involved in atrocities during the Khmer Rogue era, and U.N. envoys and foreign diplomats have tried to convince the Cambodian leader that he would never be a target for prosecution.