Global Policy Forum

By Hans Corell*

The International Criminal Court will soon come into being. A new system of international criminal justice, more than 50 years in gestation, will become a reality. Those who commit genocide and war crimes will no longer be able to bank on impunity.

So it may seem strange that in February, after more than four years of talks, the United Nations secretary-general decided to withdraw from negotiations with the Cambodian government on establishment of a court to try the leaders of the Khmer Rouge regime.

At the outset of our discussions, the United Nations had suggested that an independent international court be established to try the Khmer Rouge leaders. When it became clear that this was not acceptable to the Cambodian government, the issue became whether the UN could participate in a national court as envisaged by the government, and under what conditions.

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

He reached this decision because he strongly believes that the UN should not be part of a court that would fail to provide victims of the Khmer Rouge with the credible justice they deserve. In addition, UN affiliation to such a court could set a precedent for lowering international standards.

From 1975 to 1979, the Khmer Rouge regime was responsible for the deaths of nearly 2 million Cambodians, one quarter of the country's population. In 1997, the Cambodian government asked the UN for help. Thereafter we made assiduous efforts to develop a Cambodian court with an international component that would meet international standards of justice.

The two sides ultimately could not agree on important issues. The United Nations' fundamental requirement was that an agreement be signed to establish binding conditions for the court's operation. The Cambodian government asserted that domestic law passed by its Parliament establishing the court should be the final word. Because the domestic law could be changed by the Parliament at any time, there would be no guarantees against delays or political influence. In light of the government's own admission that its judicial system remains weak, the lack of urgency displayed by the Cambodian side throughout the negotiation process and the ambivalence expressed by certain senior officials to trying the Khmer Rouge leaders, the secretary-general came to the conclusion that these guarantees were necessary.

Consigning the agreement to a secondary status would have reduced the role of the United Nations to that of a technical assistance provider to a Cambodian court, rather than a partner in administering justice. Under such a scenario, the United Nations' name would have been attached to a judicial process over which it would have had little or no control.

* The writer is the United Nations Undersecretary-General for Legal Affairs.

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