Human Rights Watch today urged that any tribunal established to try Khmer Rouge leaders should adhere to the highest international standards. The group criticized as inadequate a U.N. proposal for a domestically-constituted tribunal in Cambodia with international participation, although it noted that the plan has some positive elements.
A United Nations team is scheduled to arrive in Cambodia this week to discuss with the Cambodian government a proposed mixed tribunal, which, to date, Cambodian Prime Minister Hun Sen has rejected in public statements. A draft U.N. plan presented to the Security Council on July 30, 1999 calls for a Nuremberg-style joint trial of all defendants together, based on indictments prepared by an international prosecutor and approved by a predominantly non-Cambodian panel of judges.
Human Rights Watch praised the U.N. proposal's requirement that the Cambodian government be obligated to arrest all indicted Khmer Rouge leaders located in Cambodian territory.
But according to Human Rights Watch, the plan as currently formulated does not meet minimum benchmarks to ensure a legitimate and credible process in line with international standards (see appendix, attached). A U.N. Committee of Experts earlier this year recommended the establishment of an international tribunal held outside of Cambodia.
"The United Nations must avoid giving legitimacy to a process that does not meet international standards," said Sidney Jones, Executive Director of the Asia Division of Human Rights Watch. "The U.N. and key donors should withhold political and financial support if these standards are not met." She noted that the Cambodian government has a history of manipulating the judiciary and disregarding the rule of law.
The U.N. plan provides that the U.N. would appoint most of the judges, but it would also allow the Cambodian government to select the remaining judges, despite its record of intervening in the decision of those selected for judicial posts. In addition, no criteria are provided for selection of Cambodian judges. "Any tribunal should be held under strict U.N. control," said Jones. "The Cambodian people deserve justice, not a show trial. Cambodia has already had one of those, after the Khmer Rouge fell from power in 1979."
The proposal fails to require the government to cooperate with the court in many other key ways--by enforcing the court's orders, preserving evidence, providing access to witnesses, opening government files and records, providing adequate protective measures for victims and witnesses, and ensuring humane treatment of those in detention.
"Witnesses and defendants have often been tortured in Cambodia," said Jones. "This tribunal would fail to give them protection, and that's a very serious omission."
The U.N. plan also fails to insist that Cambodia cooperate in attempting to apprehend suspects who have fled its territory, leaving open the possibility of government collusion to shield cooperative former Khmer Rouge leaders by allowing them to quietly disappear quietly over the border.
Other legal deficiencies include the absence of any right of appeal, failure to allow defendants recourse to lawyers of their choice, including foreign defense counsel, and failure to preclude royal pardons for convictions by the tribunal.
The U.N. is not expected to make a decision about sending legal experts to Cambodia to help in drafting a law to establish a tribunal until the U.N. mission reports back on this week's talks.