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The Case for UN Withdrawal from KRT
The Case against the ECCC
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Time is Prime for UN to Withdraw from KRT
By Theary C. Seng
COMMENTARY, 23 Jan. 2012
Re-post in KI-Media
In March 2007, I had written a column stating that the United Nations has no “tipping point” for withdrawal from the Khmer Rouge tribunal or that “it has such an extremely high threshold that it is practically nonexistent” (“No Tipping Point: Provision for UN Withdrawal only Theoretical”, The Phnom Penh Post, Issue 16/05*), mainly because “the UN will never be afforded that ‘magic moment’ of having all the varying interests of the ‘United Nations’ reach a critical mass, when all the ideas and sentiments of the varying and disparate actors fused to cross the threshold at the same time, tip and lead to UN withdrawal.”
I had argued that the UN will not invoke its right to withdraw enshrined in Article 28 (see below**) for these reasons: (i) the Cambodian government has a monolithic, consolidated voice, whereas the “United Nations” comprises a myriad of voices, actors and interests, contradicting and multi-dimensional; (ii) UN judges, prosecutors, officials are not political strategists; (iii) the government has become more confident and sophisticated; and (iv) the KRT is foremost a court of public opinion and the UN has lost time and again the public relations game vis-à-vis the government, and especially after having invested so much time, energy and money into this KRT process.
I continue to hold the above to be true but the force of these arguments has been greatly weakened by the passage of six years of KRT operation, by the accumulation of searing experiences of this government blatantly, consistently “not conform[ing] with the terms of the present Agreement”, by the growing shared discontent of public voices drawing global attention, by Cambodia’s political interests of 2012, by the poignant illustration of Cases 003/004, and by the personalities of Judge Laurent Kasper-Ansermet and UN envoy David Scheffer.
The time is ripe for the UN to invoke Article 28 and withdraw for the following reasons:
First, it is the right thing to do, backed by six years of hard evidence of “political interference” and “breach” of Agreement, and everyone knows it. That is to say, the UN has political, legal and public cover.
Second, the political climate works in favor of UN withdrawal. The Cambodian government is extra-sensitive about its international image, especially this 2012. One, Cambodia is the chair of ASEAN. With Burma reforming, Cambodia can no longer hide behind its neighbor as the region’s whipping boy for human rights abuses and violator of international norms, even as it domestically continues to use the Khmer Rouge era as its measuring stick 35 years later. Two, Cambodia is seeking the non-permanent seat of the UN Security Council. Three, it’s election year and the government is already under fire for having no opposition figure.
Third, there’s a unified, indignant, strong public stance against the government regarding Cases 003 and 004.
Fourth and related, the UN has a few very strong, influential personalities in key positions to act as the catalyst for honorable withdrawal. Judge Kasper-Ansermet is strong and has shown his courage to pursue doggedly these cases under difficult circumstances. The new UN envoy David Scheffer is a principled veteran negotiator who knows this government and key officials assigned to the KRT, meaning that he will be less susceptible to fall for the political ruse of this government which is crafty in pushing its limits and conceding just enough to appease the international community before it pushes its limits again.
With Kasper-Ansermet and Scheffer leading the pack, I believe the likes of Judge Silvia Cartwright, Judge Rowan Downing, Judge Jean-Marc Lavergne, Co-Prosecutor Andrew Cayley can be persuaded to a convergence on withdrawal as a strategy. I believe their convergence will force the hands of UN headquarters to the tipping point of withdrawal.
Practically, the withdrawal strategy would look something like this: The UN sets 3 basic conditions which are easily verifiable and communicates them publicly. Let say, one of the conditions is the immediate appointment of Judge Kasper-Ansermet and the legitimate investigations into Cases 003 and 004 starting immediately upon the judge’s appointment. (The other two conditions could be related to political interference and the integrity of Case 002.) Upon the breach of any one of the 3 conditions (which is highly likely to happen), the UN unequivocally withdraws from the KRT in a very public manner with no “ifs”, or “buts”.
In doing so, the UN would set an honorable precedent and in the process reform its global image as an institution with a backbone of courage, principles and integrity. Closer to home, UN withdrawal would salvage the loss of confidence and trust among Cambodians, a priceless commodity among a people who have lost so much faith in anyone and anything for so long.
All in all, the UN has a unique window of opportunity right now to render a measure of justice to the victims and to salvage its integrity—by withdrawing!
To stay and prolong the political farce is to embed all the dark mentalities (of impunity, of cynicism, of low expectations, of fear, of inferiority) we want to change in this society.
To withdraw is to be unprecedented in showing its leadership for victims and the world and to salvage any measure of justice that yet can be had from this political theatre.
In March 2007, I prayed to be wrong regarding UN withdrawal. Now, I have a greater chance—and only chance—of being wrong.
More than ever, let me be wrong.
** Article 28, ECCC Agreement between UN and Cambodia (June 2003): “Should the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the present Agreement.”
. . .
Agreement between UN and Cambodia
(June 6, 2003)
Should the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the present Agreement.
. . .
Legal Basis for Withdrawal
- Compromised venue for ECCC
* Military compound with all its insignia pro
* Remote, one-hour drive outside of Phnom Penh city center; had to re-draw boundary of Phnom Penh to satisfy the language of Agreement in order to have the military compound within Phnom Penh
-"----- " - Prime Minister Hun Sen
-"----- " - Prime Minister Hun Sen
-"----- " - Prime Minister Hun Sen
"Political interference" - Judge Siegfried Blunk
- "Breach of Agreement" - UN spokesman Martin Nesirky
Political / Public Cover for Withdrawal
- 10 years of political shenanigans during negotiation process
- 6 years of political shenanigans during the operational process
- Little to show forth after 16 years of efforts
- Little to show forth after US$200,000,000 since 2003, US$150 M since 2006
- High expectations for strong UN leadership from Cambodians and the world
- Basic understanding that UN must adhere to its basic principles of justice, judicial independence
Benefits of Withdrawal
- Inauguration of UN reform
- Inauguration of reform of international criminal justice system
- UN standing globally in its unprecedented principled stance
- UN integrity and principles in tact
- Keeping the faith and confidence of Cambodian victims
- Powerful strike against impunity
- Strong message to Cambodian government
- UN gains leverage vis-a-vis the Cambodian government; by taking a pro-active stance, the UN wins the public relations game
- Salvage and maintain the benefits already produced
Costs of Continuing the Political Farce
- US$200,000,000 wasted with millions more to be wasted
- Destroy all faith, all trust, all confidence of Cambodian victims
- Embed mentality of impunity
- Embed mentality of low expectations
- Embed mentality of fear
- Embed mentality of cynicism
- Negate justice
- Dis-empower victims
- Risk transforming the benefits into irreversible cynicism, where they are through out with the rubbish
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