Global Policy Forum

The United Nations General Assembly should not approve a draft agreement between Cambodia and the United Nations to create a tribunal for the Khmer Rouge unless the agreement includes major changes, Human Rights Watch said today in a 13-page briefing paper. A committee of the General Assembly is expected to consider the draft later this week.

The Human Rights Watch briefing paper cites concerns about Cambodian government interference in the work of the tribunal, confused and contradictory laws under which the tribunal would operate, and a lack of serious plans for the protection of witnesses, victims and court personnel.

"Cambodians deserve the highest standards of justice to prosecute those responsible. They deserve to know the truth about what happened, and why," said Mike Jendrzejczyk, Washington director of the Asia division of Human Rights Watch. "Instead, this proposal represents the lowest standards yet for a tribunal with U.N. participation."

After almost five years of negotiations, and under pressure from France, Japan, the United States and others, the United Nations initialed an agreement with Cambodia on March 17, 2003. The agreement would create a "mixed tribunal" based in Cambodia to try "senior leaders" of the Khmer Rouge and "those who were most responsible" for the crimes of genocide, war crimes and crimes against humanity.

The proposed tribunal would have a majority of Cambodian judges and a minority of international judges, working alongside Cambodian and international co-prosecutors. Cambodia's judiciary has been widely condemned by the United Nations and many of its member states for lack of independence, low levels of competence, and corruption.

"With Cambodia's judiciary at the center of the tribunal, the agreement ensures that it will be politics and not law that will dominate the tribunal's work," said Jendrzejczyk.

"The Cambodian government under Hun Sen has a long and well-documented record of control, interference and intimidation in the work of the courts. Members of the U.N. General Assembly should consider that history before they vote for this seriously flawed plan."

U.N. Secretary-General Kofi Annan has made plain his unease over an agreement that key U.N. member states had pressured him to sign. In a report to the General Assembly last month he said, "I cannot but recall the reports of my Special Representative for human rights in Cambodia, who has consistently found there to be little respect on the part of Cambodian courts for the most elementary features of the right to a fair trial. I consequently remain concerned that these important provisions of the draft agreement might not be fully respected by the Extraordinary Chambers and that established international standards of justice, fairness and due process might therefore not be ensured."

Human Rights Watch believes that a tribunal meeting international standards should have been created many years ago. However, a combination of international and local politics prevented this from happening.

France is a leading proponent of the new International Criminal Court (ICC). The United States has been a supporter of the international tribunals for the former Yugoslavia and Rwanda and for many years the strongest voice for an international tribunal for the Khmer Rouge. Yet both countries have been among the most ardent proponents of a tribunal in Cambodia that fails the basic tests of judicial independence and due process.

"What is good enough for the ICC, former Yugoslavia and Rwanda is apparently not good enough for Cambodia," said Jendrzejczyk. "It is remarkable that some member states would act so brazenly to undermine U.N. attempts to ensure the credibility of this tribunal. But in the end, politics and pragmatism won out over principles."

The Cambodian government has also acted hypocritically, signing up to the ICC but refusing to allow ICC principles to be applied to international crimes committed on its own soil.

Approximately two million Cambodians died from executions, disease and starvation during the Khmer Rouge period from 1975-79. The Khmer Rouge engaged in forced evacuations of cities, forced labor, and banned all religious activities. Not one person has been prosecuted for these crimes. Many Khmer Rouge leaders, such as Ieng Sary, Nuon Chea and Khieu Samphan, live freely in Cambodia as the result of political deals with Cambodian Prime Minister Hun Sen.

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