Negotiations between the UN and Cambodia
regarding the establishment of the court to try Khmer Rouge leaders
Statement by UN Legal Counsel Hans Corell
at a press briefing at UN Headquarters in New York
8 February 2002
At the instruction of the Secretary-General the United Nations will no longer continue the negotiations with the Royal Government of Cambodia ("the Government") towards the establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea ("the Extraordinary Chambers"). The reasons for this decision are the following.
The negotiations between the United Nations and the Government originated from a request by Prince Ranariddh and Mr. Hun Sen, at the time co-Prime Ministers of Cambodia. In a letter to the Secretary-General of the United Nations of 21 June 1997, they jointly requested the assistance of the United Nations in bringing to justice persons responsible for genocide and crimes against humanity during the Khmer Rouge regime from 1975 to 1979. On 15 March 1999, an expert Group appointed by the Secretary-General proposed that an international court be established (see UN doc. A/53/850 and S/1999/231, paras. 5 and 219). However, in a letter to the Secretary-General of 17 June 1999, Mr. Hun Sen, now the sole Prime Minister, modified the request; the focus was now to be on a national court with the participation of foreign judges and prosecutors.
Despite the fact that an international court was no longer requested, the United Nations was encouraged by Member States to continue the efforts of bringing the Khmer Rouge leaders to justice and, therefore, engaged in negotiations of an agreement between the Organization and the Government. On three occasions (in August 1999, March 2000 and July 2000), United Nations delegations visited Phnom Penh at the invitation of the Government. Hans Corell, Legal Counsel and Under-Secretary-General for Legal Affairs and lead UN negotiator, departed from Phnom Penh on 7 July 2000, with the belief that there was an understanding with respect to the outcome of the negotiations. The United Nations and the Cambodian Government had subjected both the draft law that was before the National Assembly and the text of the agreement to be signed between the United Nations and the Government to a detailed scrutiny.
The negotiations between the Government and the United Nations extended far longer than expected when the discussions began more than two years ago. During much of that time, the initiative rested with the Government, despite frequent statements by senior Cambodian officials holding the United Nations responsible for delays in the process. Indeed, during much of the period following July 2000, the United Nations waited for the adoption of the law establishing the Extraordinary Chambers. This did not occur until 10 August 2001, more than a year later. The United Nations received the official translations from Khmer into English and French under cover of Senior Minister Sok An's letter to Mr. Corell of 30 August 2001. During that period, the United Nations provided numerous suggestions aimed at assisting the Government in establishing a credible process and worked closely with Minister Sok An in drawing up an agreement on the establishment and operation of the Chambers.
After that long delay, it was possible for the United Nations to review the Law on the Establishment of the Extraordinary Chambers ("the Law"). In a letter to Minister Sok An of 10 October 2001, Mr. Corell stated that there remained for the United Nations a number of issues of concern. Principal among those issues is which document, the Law or an agreement between the Government and the United Nations, would govern the conduct of the Extraordinary Chambers in the event of a disagreement between the two documents. In a letter to Mr. Corell of 23 November 2001, Minister Sok An stated: "While the Articles of Cooperation (the agreement) may clarify certain nuances in the Law, and elaborate certain details, it is not possible for them to modify, let alone prevail over, a law that has just been promulgated." The United Nations must take this as the final position of the Cambodian Government.
It has been the United Nations' consistent position that the Organization cannot be bound by a national law. Hence, the United Nations insisted throughout the negotiations, in accordance with the usual practice in concluding international agreements, that the United Nations and the Government should reach a controlling agreement. In addition, it has been the consistent position of the United Nations that the Law would have to conform to the contents of the agreement. The question of Cambodia's sovereignty is not at issue here, since the matter required an agreement to be implemented under the principle of pacta sunt servanda, that is to say that the terms of the agreement are binding on both parties.
The problem of which document would control the conduct of the Extraordinary Chambers was created by the decision of the Government to present the Law to the National Assembly before reaching an agreement with the United Nations. The United Nations reluctantly continued to discuss the agreement and the establishment of the Extraordinary Chambers with the Government despite its stated reservations about that process. This has never been merely a procedural concern for the United Nations. On the contrary, reaching such an agreement has been a necessary condition for the Organization's participation. Reducing the agreement to the status of a technical, administrative document subordinate to the Law would deprive it of its substantive role of ensuring that international standards of justice, necessary for the continued participation of the United Nations, would be maintained in the operation of the Extraordinary Chambers.
Given the Cambodian Government's position in this matter, it is not likely that the parties would resolve it through further negotiations. In addition, having reviewed the correspondence over the last few months, including Minister Sok An's letter to Mr. Corell of 22 January 2002, the United Nations has come to the conclusion that the Extraordinary Chambers, as currently envisaged, would not guarantee the independence, impartiality and objectivity that a court established with the support of the United Nations must have.
During the negotiations the United Nations maintained that international standards of justice must be met for the United Nations to participate in the Extraordinary Chambers. The United Nations has made great efforts to accommodate the concerns of the Government, while at the same time protecting the integrity of the Chambers and the prosecution. The United Nations regrets that the Government was unable to address its concerns before the Law was adopted so that they could be reflected in the Law and so that the agreement would thereafter effectively govern the standards agreed to. Unfortunately, the Government acted on its own without recognizing that an agreement must be based on the consent of both parties.
Furthermore, in light of the above, the United Nations has reviewed the negotiation process as it has developed from the first contacts between the United Nations and the Government in June 1997 until now. What has emerged during this period, and, in particular, since the last negotiating session in Cambodia in July 2000 has given cause for great concern on the part of the United Nations. The United Nations is especially concerned at the lack of urgency shown in the year and a half since that visit. That delay extended the time before which the aged Khmer Rouge leaders could be brought to justice. The United Nations fears that this lack of urgency could continue and affect the work of the Extraordinary Chambers, which would be vulnerable to delay.
Therefore, having carefully considered these concerns, the United Nations has concluded that the proceedings of the Extraordinary Chambers would not guarantee the international standards of justice required for the United Nations to continue to work towards their establishment and have decided, with regret, to end its participation in this process.
Recognizing the stated goal of the Cambodian Government to establish the Extraordinary Chambers without delay, this decision would enable it to make other arrangements and begin the process of bringing the leaders of the Khmer Rouge to justice.
The United Nations shares with the Cambodian people a desire to bring the Khmer Rouge era to a close in a way that contributes to national reconciliation and justice and wishes the Government well in its efforts to reach this goal.