The New York Times

Wednesday, January 3, 2001

Cambodian Deputies Back War Crimes Tribunal to Try Khmer Rouge

By SETH MYDANS

BANGKOK, Jan. 2 - After months of delay, the Cambodia National Assembly voted today to create a special tribunal, with help from the United Nations, to try the leaders of the murderous Khmer Rouge regime of the 1970's.

Many political and technical pitfalls still lie ahead, and officials and experts said that it might be years before any of the aging leaders face trial and that some could evade justice altogether.

"I cannot say how many years, but it will take time," the assembly's president, Norodom Ranariddh, said on Friday.

The assembly acted surprisingly quickly, after just two days of consideration and with little debate. But it remained unclear whether Prime Minister Hun Sen, who orchestrates most political events, truly wants a trial to proceed.

"It's a step forward," said a diplomat with long experience in Cambodia, "but we know that the roads are very rocky here. Based on past experience I would at this stage tread very carefully."

Though there was a show trial for absent defendants in 1979, no one has yet been brought into court to answer for the deaths of more than a million people when the Communist Khmer Rouge ruled Cambodia from 1975 to 1979.

When its guerrilla resistance collapsed at the end of the 1990's, most of its surviving leaders were granted amnesty and have been left alone to live in quiet retirement. Its supreme leader, Pol Pot, died in 1998.

The measure passed today, based on an American formula, involves a cumbersome compromise in which both Cambodian and foreign prosecutors and judges would jointly select the defendants and jointly reach their verdicts. The foreign judges would be in the minority but would hold veto power over decisions.

The compromise was made necessary by the resistance of Mr. Hun Sen, who is seeking to keep control of the process and who has engaged in what one political expert, Kao Kim Hourn, called "a policy of ambiguity" regarding his intentions.

Both foreign and domestic critics say the formula leaves the process vulnerable to the corruption and political manipulation that characterize the Cambodian legal system.

"Maybe it will function well - maybe - but we are concerned," said Kek Galabru, the head of Cambodia's leading human rights group, Licadho. "It is difficult to find independent judges in Cambodia, and most of the judges and prosecutors are not professional. And also there is the problem of corruption. So it will be difficult for the United Nations-appointed judges and prosecutors to work with the Cambodian team."

Sara Colm, the Cambodia representative of the New York-based group Human Rights Watch, expressed a widely held concern that the mixed-tribunal formula might set a precedent in which future United Nations courts could be similarly diluted by local political pressures.

She said a difficult process of negotiation with the United Nations over the last four years has been "a steady retreat" from the ideal of an impartial international tribunal.

"The concern is that by relying so much on the Cambodian judiciary - which has been torn apart by the Khmer Rouge years and is still in the process of rebuilding - that a tribunal of this nature would not be able to offer the fairness and transparency that is required," she said.

By selecting and pressuring the Cambodian members of the tribunal, she said, the government could determine who is prosecuted and how defendants are judged.

Mr. Hun Sen has said that at least one Khmer Rouge leader, Ieng Sary, should not be tried, although his name is one of the main half dozen raised by proponents of the trials.

Mr. Hun Sen has alternated between urging that the past be buried and forgotten and urging that a trial proceed to exorcise the ghosts of the past. Foreign envoys who have visited him have emerged alternately encouraged and frustrated.

His policy of ambiguity involves balancing pressures from both internal and external groups, including demands for a trial from most Western nations and pressure against a trial from China, a long-term sponsor of the Khmer Rouge. Both sides wield significant economic and political influence in Cambodia.

Though he likes to call himself a strongman - and often acts like one - Mr. Hun Sen faces internal pressures from his party. A number of its top officials, like Mr. Hun Sen himself, were themselves low-level Khmer Rouge cadre and fear that prosecutors could cast a wide net.

The measure passed today explicitly takes that concern into account, specifying that only those "most responsible" for atrocities would be put on trial.

Critics say, though, that any prior limitation on the defendants could stymie a fair and unfettered investigation. A great deal of documentary evidence has been gathered by a Cambodian documentation center, but legal experts say that witness interviews are central to successful prosecutions.

The names of the surviving leaders and suspects are well known. In addition to Mr. Ieng Sary, two top leaders who surrendered two years ago - Nuon Chea and Khieu Samphan - live in a remote enclave near the Thai border under a provisional amnesty, surrounded by former Khmer Rouge fighters who were once under their command. Documentary evidence has also been gathered implicating Mr. Ieng Sary's wife, Ieng Thirith.

Two other prominent figures who did not surrender and were not granted amnesty by the government - Ta Mok and Kaing Khek Ieu, the commandant of the Khmer Rouge torture chamber, Tuol Sleng - have been jailed and could be the first defendants to be brought into court.

Mr. Hun Sen has warned of instability if a trial proceeds, and he has been suspected of fomenting violence himself when it suits his ends. Most experts dismiss the possibility of any concerted Khmer Rouge backlash.

But a number of steps remain to be taken before any trial can proceed. The measure passed today must be approved by a newly created and usually passive Senate as well as a Constitutional Council before being signed into law by King Norodom Sihanouk.

Then a new round of negotiations with the United Nations over procedures and technicalities would begin. Only then could the expensive and complex process begin of setting up a court, choosing prosecutors and judges and investigating potential defendants.

"This has been the easy part," said Mr. Kao Kim Hourn, the director of the Cambodian Institute for Cooperation and Peace. "The more challenging part will be putting together the team - particularly the Cambodian team - and having the two teams work together in setting up the court."

And even that will only be a start, he said.

"The other, more challenging, part will be how to encourage those alleged Khmer Rouge leaders to come forward to appear in the court," he said. "Very challenging. And what would happen if they would not show up in court?"