PRESS BRIEFING ON CAMBODIA BY UN LEGAL COUNSEL

Negotiators on the draft agreement between the United Nations and the Government of Cambodia had come as far as they could, Hans Corell, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, told correspondents at a Headquarters press briefing this afternoon to discuss the draft agreement between the United Nations and the Government of Cambodia on the prosecution of crimes committed during the period of the Democratic Kampuchea.  It was now for the General Assembly and the competent Cambodian authorities to accept the draft agreement, Mr. Corell said.

Introducing Mr. Corell, Fred Eckhard, the Spokesman for the Secretary-General, said that the Under-Secretary-General had just returned from Phnom Penh where he had negotiated an agreement with the Cambodian Government concerning a trial for Khmer Rouge leaders.  The full text of the draft agreement was embargoed until 9 p.m. this evening.

Mr. Corell said that he had agreed with his counterpart in Phnom Penh that as soon as he had informed the Secretary-General about the contents of the draft agreement, he would make the text public.  The text would, therefore, be published in Cambodia tomorrow, at 9 a.m. local time, and in New York at 9 p.m. this evening.

What had happened in Phnom Penh was not so unexpected, he stressed.  There was a distinct difference in the situation now and last year, in that the General Assembly had taken charge of the process.  That had been a world of difference for the Secretary-General.  If the Secretary-General himself negotiated under his good offices, he had to make certain not to enter into an agreement that was not acceptable to the Organization.  As the General Assembly had taken over, Member States had given indications of what they expected from the agreement.

[By the terms of resolution 57/228 of December 2002, the Assembly requested the Secretary-General to resume negotiations to conclude an agreement with the Cambodian Government based on previous negotiations on the establishment of the Extraordinary Chambers.]

The agreement had not been signed in Phnom Penh, but had been initialled, Mr. Corell added.  A text had been printed and frozen.  Both sides knew exactly which text had been elaborated.  This procedure was used in a situation where the negotiators knew they had come as far as they could.  It was now for the General Assembly and the competent organ in Cambodia to decide whether they approved of the text. “If they do, then we have an agreement”, he said. 

Elaborating on the differences between the draft agreement and the situation last February, he said an important difference was that they had agreed in Cambodia that it must be the agreement that governed the assistance operation.  Also, the structure had only two chambers now:  one Trial Chamber and one Supreme Court Chamber.  This had significantly simplified the process.  There were also elaborate provisions on the standards of the proceedings.  The draft agreement contained many provisions, which should be greeted with positive reaction.  Whether the General Assembly would find the draft agreement acceptable and if the

Cambodian National Assembly acted quickly remained to be seen, however.  “Time was of essence, here”, he added.

The Secretary-General had sent a letter to the General Assembly President reporting on progress so far, he said.  A full report would be out as soon as possible.  How the General Assembly proceeded remained to be seen.  Perhaps there would be a debate in the Assembly’s Third Committee (Social, Humanitarian and Cultural).

What had actually changed in Cambodia that an agreement had been reached? a correspondent asked.  Mr. Corell said the change was due to the fact that Member States had gotten deeply involved in the process.  There had been discussions with the Government of Cambodia and Member States in the process of finalizing Assembly resolution 57/228, adopted on 18 December 2002.  Cambodia realized that it was a “last chance”.  If the negotiations had not succeeded, the matter would have been closed.  Cambodian Prime Minister Hun Sen realized that “no stone should be left unturned” to pursue the matter.

Asked when he expected the General Assembly to act on the draft agreement, Mr. Corell said that it was not for him to discuss time frames.  He would be surprised, however, if it took very long.  He believed that the General Assembly would act with extreme haste.  Everybody knew that time was of essence.  He hoped that the Assembly would act so quickly that it would entice local Cambodian authorities to act just as quickly.  He suggested that questions were put to both the President of the General Assembly and the Chairman of the Third Committee the moment that the report was put on the racks.

Asked how the question of the judges and the prosecutor had been resolved, Mr. Corell said the solution was the same as in February 2002.  In the first instance, there were three Cambodian and two international judges.  In the second Chamber, there were four Cambodian and three international judges.  Decisions in the two Chambers would be taken by a “super majority” -- at least one international would have to join hands with local judges.  The reason it was the same was that many Member States had approached the Secretary-General asking him not to open the question again.  While he still had some concern, he realized that there was no way of moving the issue.

Why was time of the essence? a corresponding asked.  The trials would focus on senior Khmer Rouge leaders.  There was a biological factor in that those leaders were now aged.  The person responsible for the Government in those days, Pol Pot, was already dead.  It was important to ensure that those most responsible were able to stand trial.

Assuming that all went smoothly at the Cambodian National Assembly and the United Nations General Assembly, had the Cambodians indicated a time frame to begin “putting people in the box”? a correspondent asked.  When asked the same question in Phnom Penh, Mr. Corell said he had referred to the Sierra Leone Court. In that case, the Prosecutor had been appointed last May or June, and the first indictments had been sent in some 10 days ago.  It depended on the Prosecutor’s strategy.  In the case of the Cambodian Court, it would be a question of examining documentation -– a major exercise in vetting papers to establish lines of command and get a clear picture of who was responsible for what.

Asked whether he thought the trials would be established, Mr. Corell thought they would be.  The text of the draft agreement was as far as the negotiators could come.  While he had hoped that it would have contained other elements, there had been flexibility on the Cambodian side.  Provision to protect the integrity of the process had been included.  If approved by the General Assembly, the Cambodian Government would have to go forward.  So many Member States had been involved in the process, that it would not be possible for Cambodian authorities not to go forward.  Starting criminal proceedings involving international judges and prosecutors was an elaborate procedure, including much technical work.  A budget officer, for example, had participated in the delegation.  He had also visited possible locations for the future Extraordinary Chambers.

In response to a question, Mr. Corell said that what had been an issue for the Secretary-General in February 2002 was that the Cambodians had refused to recognize the agreement as the governing instrument.  They now realized that the agreement had to be under international law.  The agreement, if approved by the General Assembly, would apply as law within Cambodia once approved by the National Assembly.

Responding to another question, he said he felt there was a commitment on the part of the Cambodian Government to the draft agreement.  The question was what the General Assembly would say.  He had done his best as negotiator.  Many provisions were in much better shape then when the Secretary-General had decided to pull out from his good offices.  A majority of international judges would have given a different perspective on the two Chambers, however.  It was a question of the credibility of the process.  Member States had said that the composition of the Chambers had already been decided by the General Assembly.  The formulation of the resolution was such that that question should not be opened.

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