PRESS BRIEFING BY UNDER-SECRETARY-GENERAL FOR LEGALS AFFAIRS AND UNITED NATIONS LEGAL COUNSEL

Press Briefing

PRESS BRIEFING BY UNDER-SECRETARY-GENERAL FOR LEGALS AFFAIRS AND UNITED NATIONS LEGAL COUNSEL

The establishment of so-called "extraordinary chambers" to try leaders of the Khmer Rouge had now progressed past formal discussions between the United Nations and the Royal Government of Cambodia and was ready to be acted upon by the Cambodian legislature, Hans Corell, Under-Secretary-General for Legal Affairs and the United Nations Legal Counsel, told correspondents at a Headquarters press conference this morning.

"The matter is now before Parliament in a sovereign Member State and it is now for this Parliament to discuss the law and to adopt it", said Mr. Corell, who recently returned from Phnom Penh after concluding a round of discussions to develop mechanisms for the tribunal with his Cambodian counterpart, Mr. Sok An, Senior Minister in Charge of the Office of the Council of Ministers.

The tribunal would be under national auspices, with the assistance and participation of the United Nations, he said. As the precise provisions of the Cambodian law establishing the tribunal had yet to be passed, Mr. Corell deferred from detailing its operation, although he was able to comment on its general concerns, and on the working relationship that was developing between the Government of Cambodia and the United Nations.

Among the provisions awaiting the legislative process were the precise defendants that fell under the jurisdiction of the court and the sanctions to which they would be subject if found guilty, he said. Circumstances, though, restricted the possibilities. Because of the capacities of the court, it would probably be limited to "senior leaders of the Khmer Rouge and also some others", he said. Sanctions would necessarily be imprisonment, including life imprisonment, as the death penalty had been ruled out.

Among the unusual features of the tribunal would be its composition of national and international judges, he said. A majority of the panel would be national judges. "This was something introduced before the United Nations was really involved", Mr. Corell said. "Obviously, we would have liked to have a majority." But the balance is redressed somewhat by the requirement of a "super- majority", for example, five out of seven judges to produce decisions and judgements. Otherwise, the extraordinary chambers would be phased into the Cambodian judicial system, with trial, appeals, and Supreme Court sectors.

An important part of the whole effort, Mr. Corell said, was restoring the rule of law in Cambodia. He recalled being struck by the fact that the kind of senior judges who should have been involved in this matter did not exist. Those who today would have been senior judges had all been killed. They had been part of the target group 20 years ago.

The development of the tribunal had begun in 1998 when the previous government asked for an international court to address the problem. Even though experts appointed by the United Nations had recommended that the trials take place in an international criminal court, the organization had finally decided it was a

Corell Briefing - 2 - 13 July 2000

matter for a national entity. Furthermore, the Government led by Prime Minister Samdech Hun Sen had requested assistance from the United Nations for a trial by national courts. In September 1999, efforts had been focused on the drafting of a national law that would enable the trials.

As drafts were sent to the United Nations in December 1999, the Secretary General raised issues that needed to be resolved before the United Nations could lend its name to the effort. A mutually-acceptable mechanism for settling differences between the international and national co-investigators was among the last matters to be clarified. An outline of such a mechanism proposed by the United Nations during Mr. Corell's last visit to Phnom Penh in March had engendered much discussion there. A proposal by the Secretary-General was forwarded in April. United States Senator John Kerry assisted in convincing the Cambodian Government to accept the proposal.

A correspondent noted that the whole process hinged on Parliament passing a law agreeable to the United Nations, and wondered if Mr. Corell had seen drafts of the actual law. He replied that he had, and that they would probably be published, but, "more importantly, we have gone over the articles that will form the memorandum of understanding, and the Cambodians are aware that any major deviations from this would make it difficult for the United Nations to participate".

The correspondent then asked for a clarification of the agreement process. Mr. Corell then explained that once the law had been passed by Parliament, a memorandum of understanding between the United Nations and Cambodia will be signed by the two parties and, after this, ratified by the Parliament. He realized that this was an unusual process, but the one most practical for the situation.

Another correspondent asked what time limits the United Nations would accept before Parliament adopted the law for the tribunal. Mr. Corell replied that that was for the Secretary-General to answer, but that he felt the Cambodians were committed to completing the process as quickly as possible, so that it should not be a problem. He added that the traumatic nature of the matter, for the Cambodians, had to be taken into account.

The same correspondent then asked about decision-making powers where there were both investigating judges and prosecutors, as seemed to be the case here. Mr. Corell replied that, indeed, investigating judges were not known to all justice systems and that he was confident that the relationship between them would develop naturally during this process. The composition of the trial chamber, he added in response to another question, would consist of two international judges and three Cambodian judges.

Responding to questions on the numbers of possible defendants and if they would include, for example, collaborators with the Vietnamese, Mr. Corell declined to speculate on names or figures. Laws must be drawn up in general terms. His main concern, he said, was that the category of persons subject to the jurisdiction of the tribunal be distinct enough to provide necessary guidance to the prosecutors. He noted that there were persons already under arrest, and the numbers tried would be limited by the capacity of the mechanisms envisioned.

Corell Briefing - 3 - 13 July 2000

There might also be trials before ordinary national chamber, and through the ordinary chambers, but that would be up to the Cambodians. There were many victims, but there were also many perpetrators, so numbers became a delicate matter, he said.

A correspondent asked if there were worries about the precedent that was being set by this kind of hybrid, ad hoc, mixed international and national court, especially as concerned future possible tribunals in, for example, Sierra Leone, and beyond. Mr. Corell said that he had been wrestling with that problem. This was an unprecedented effort resulting from a request for assistance, he said. It led to a decision taken by the Secretary-General, upon advice, which tried to strike a balance between national sovereignty and the standards the United Nations must uphold.

Ultimately, he continued, the proof would be in how the proceedings would be conducted. For the Secretary-General, it had become very important to be able to say that the Organization had really done its best to assist this country in an extraordinary situation without compromising the standards that the United Nations must uphold. The alternative might have been no trial at all or a trial in very weak national courts. There had, in addition, been much support for these efforts from the Member States. "We all know", he said, "the history of what happened, not only during these four years, but also afterwards."

* *** *