PRESS BRIEFING BY UNITED NATIONS LEGAL COUNSEL

Press Briefing

PRESS BRIEFING BY UNITED NATIONS LEGAL COUNSEL

Hans Corell, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, said at a Headquarters press briefing today that it had been considered important by the Secretariat to put on record what had emerged in discussions with the Cambodian authorities on the issue of providing a judicial process for the trial of members of the Khmer Rouge. It had also been deemed necessary to do so, as the Secretariat had been depicted in the media as somewhat slow on the matter.

He stressed that the United Nations was committed to the process. The Secretariat was also clear about the fact that it was dealing with a sovereign State; he said, “No one can enforce anything upon this sovereign State.” That meant a balance had to be struck -– a balance between the sovereignty of the State, which had approached the United Nations in the matter, and the credibility of the Organization in organizing a trial of the Khmer Rouge as had been envisaged. “So what it comes down to really is the credibility of the process, and this credibility must be apparent both to the people of Cambodia and to the international community at large”, he said.

Giving details of what had transpired to date, he said the effort had started in the summer of 1997 when the Organization received a joint letter from the then co-Prime Ministers of Cambodia -– Hun Sen and Prince Ranariddh. After further discussions involving various organs of the United Nations, a group of experts had been appointed. The experts examined the situation, including the legal set up in Cambodia, and delivered their report in the spring of 1999. Eventually, the Government of Cambodia invited the United Nations to send a team of experts to Phnom Penh to discuss how further to proceed. The visit had taken place between 25 and 31 August. The team had been headed by Ralph Zacklin, Deputy to the Legal Counsel.

During the talks in Phnom Penh, the United Nations team had presented to the Government a draft of the law that would establish the tribunal in Cambodia with international presence, he said. Eventually, Prime Minister Hun Sen and Mr. An had visited New York last September when they had had talks with the Secretary-General and officials of the Secretariat. At that time, Mr. An had promised that a counter proposal –- a new draft -– from Cambodia would be received within a couple of weeks. However, it had taken until 20 December before the draft was presented to the Secretariat, with a request that it should react urgently, Mr. Corell said, adding that that had been done.

After studying the draft, the Secretariat had sent a reply directly on 23 December. A cabinet meeting had been held in Phnom Penh. Few revisions had been made to the draft. A second draft had been sent to the United Nations Secretariat on 28 December with yet another request to react urgently. That had been done, with the Secretariat providing a reply a day before a scheduled cabinet meeting in Phnom Penh on 6 January.

Legal Counsel Briefing - 2 - 8 February 2000

Mr. Corell said that, at the same time, the Secretariat had been advised that a translation of the draft had not been finally approved, and that it had to expect an official translation. That had arrived on 18 January this year. At approximately the same time, a draft law had been submitted by the Government to the Cambodian Parliament. Since it had become public, the United Nations had received a number of comments on the draft both from Member States and from non- governmental organizations. Their concern was that international standards should be met when the draft was ultimately approved. In view of that, it was necessary for the United Nations to come to a position to be conveyed to the Government of Cambodia. The matter had been brought before the Secretary- General, as the issue was in the hands of the Cambodian Parliament.

Two things had to be observed, Mr. Corell said. The focus had, until now, been on a draft law, and such a law had to be adopted at the national level. Above all, when the United Nations entered into a commitment with a Member State, it had to be done through an international agreement. Two components were actually needed. The position of the United Nations had been conveyed to Prime Minister Hun Sen in a letter from the Secretary-General today. The details of the letter were for the Government. He said that since some of the issues had been discussed in the media, he thought it was fair to say that some of the elements concerned cooperation between the parties -– the Government and the United Nations.

There were many issues that had to be solved, he said. International concerns covered the powers of the prosecutor and the investigating judges; and the question of the composition of the court. The question of visits had been discussed in the media. The Government of Cambodia had been invited to discuss several matters of principle, but it instead preferred to invite a technical team from the United Nations. It was against that background that the letter from the Secretary-General discussed the issues of principle. On receiving a response, the Secretary-General would take a decision on whether to send the team of experts to Cambodia for further talks.

Mr. Corell again said the United Nations was committed to continue the process and arrive at a satisfactory result, both for the Government and for the United Nations. It was necessary that the issues to be discussed should be framed. It should not be forgotten that the efforts both sides were engaged in were unprecedented. Such an arrangement had not been undertaken before. It should also be understood that there were quite a few questions that needed to be answered before the arrangements could take effect. . In response to a question, Mr. Corell said that the proposals by the Government of Cambodia were laid down in the draft law that it had presented to the Cambodian Parliament. The elements that had been discussed by the Government, the Parliament and also the media included the composition of the courts, the powers of the prosecutor and the powers of the investigating judge. Those issues had to be solved between the parties, but there were also more detailed questions that needed clarification and solution.

Legal Counsel Briefing - 3 - 8 February 2000

The Government's position was reflected in the draft before Parliament, Mr. Corell said. In that draft, there was a majority of Cambodian judges in all instances.

Asked whether that was acceptable to the United Nations, Mr. Corell said he would not go into detailed discussion. It was a matter that had to be discussed directly with the Government of Cambodia.

What was the Secretary-General saying in his letter? How was it taking the next step? a correspondent asked. Mr. Corell said that it was not just a question of defining a solution in a law to be put before Parliament. If there were to be mutual commitment by the Government and the United Nations, there needed to be an agreement between the United Nations and the Government. This agreement would have to address the most important and significant issues.

A correspondent asked if the United Nations was looking for a separate international agreement between Cambodia and the United Nations, which would address United Nations concerns, even if Cambodian national law might not. Mr. Corell said that the normal procedure for negotiating an arrangement at the international level was to make an agreement. The agreement would then have to be implemented at the national level. That was for national institutions, the Government and Parliament to decide on. The basic elements and most important details would have to be set out in the international agreement.

In response to another question, Mr. Corell said that it was important in international negotiations that there be direct contact between the parties, and that they discuss in confidence the issues that needed to be fleshed out. Any agreement would then have to be presented to the legislative bodies at the national level.

A correspondent said that because the media had never seen a draft, it was difficult for them to understand where the parties stood and what was being discussed. How should the media describe what exactly was going on? the correspondent asked. Mr. Corell said it went without saying that if someone called the United Nations and asked for assistance in solving an issue at the national level, there had to be an understanding between the Government of that country and the United Nations. This was common standard in all efforts with Member States. That negotiations were held between the parties before it went public was also the normal procedure. What was important was that the result be acceptable to both sides. The contemplated arrangements had to satisfy credibility among the people of Cambodia and the world community at large.

Asked if the political personalities in Cambodia had meant that Cambodia had not been given the same "leeway" as Indonesia in possibly setting up a tribunal, Mr. Corell said that it was not a case of the personalities involved. The Government of Cambodia itself had requested the United Nations to assist. This had been done as an exercise of their sovereign rights. When a Member State made such a request of the United Nations, the United Nations had to respond. The United Nations had responded as quickly as possible. The first Cambodian draft had been received on 20 December.

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A correspondent asked whether Cambodia wanted legitimacy without United Nations involvement. Mr. Corell said that, while he could not answer for the Cambodian Government, he could respond on behalf of the United Nations. At stake was the sovereignty of Cambodia, which no one disputed, and the credibility of the United Nations. Many had expressed concern that any solution would not meet international standards. It was for the two parties to come to an understanding where concerns on both sides were meet.

Asked whether the need for agreement was something new, Mr. Corell said that the fact that an agreement was necessary had been made clear to the Government of Cambodia at an early stage. They had focused on the law. The United Nations had presented a draft in August and had been promised it would receive a counter proposal a couple of weeks after mid-September -- Cambodia had obviously needed more time at the national level. After the United Nations saw the thinking on the Cambodian side, then they would have to come up with the agreement. The basic elements of the law would have to be reflected in the agreement.

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