Status of the Khmer Rouge Tribunal Negotiations

by Craig Etcheson

In January 2001, the Royal Government of Cambodia presented parliament with the draft law on the Khmer Rouge tribunal, formally known as the "Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea."

The United Nations had submitted a list of proposed revisions to the draft law to Minister Sok An, and UN representatives expressed frustration that none of these suggestions were considered in the course of parliamentary debate. Cambodian and US government officials have argued that all of the proposed revisions can be handled in the context of the pending Memorandum of Understanding between the UN and the Royal Government.

After an interesting debate, both the National Assembly and the Senate unanimously passed the law. The law then went to the Supreme Council of the Magistracy for constitutional approval. The Supreme Council found that references to the 1956 penal code in the law presented a problem, because the 1956 code included the death penalty among possible punishments, while the 1993 constitution forbids capital punishment. Legal scholars have questioned this finding because the 1993 constitution specifies that new law takes precedence over old law, but nonetheless, the draft was returned to the Council of Ministers for revision in view of the constitutional objections posed by the Supreme Council.

Government sources indicate that the revised draft should be submitted by the Council of Ministers to the National Assembly's Legislative Commission by early April, so that the committee can review it prior to the anticipated reconvening of the full National Assembly in mid-April. Parliament will then have an opportunity to reconsider the draft law, and most observers expect prompt affirmative votes by both houses. Assuming no substantive amendments are added by the parliament, the Supreme Council of the Magistracy will presumably approve the revised version in reasonably short order. His Majesty the King is expected to return to Cambodia from his retreat in Beijing by the Khmer New Year, and thus he would be present to formally promulgate the legislation into law.

With the law in place, at that point negotiations between the United Nations and the Royal Government on details of implementing the law could proceed. Prime Minister Hun Sen has articulated his hope that the tribunal can convene before the end of the year, but if this goal is to be achieved, rapid progress by all concerned parties will be required. Much remains to be decided, and technical preparations by the United Nations will take some time.