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Bureau Bangkok for Asiaweek Pictures.
Cambodia's pagodalike National Assembly will soon debate a bill setting up courts to judge Khmer Rouge crimes.

Fragile Democracy on Trial
Cambodia's parliament to get a hot potato

When U.N. negotiator Hans Corell left Phnom Penh he had reason to be satisfied. Agreement had finally been reached on the makeup of the court that will judge those responsible for the genocide of 1.7 million Cambodians between 1975 and 1979. He knew that the next hurdle is for the National Assembly to pass the tribunal into law. Although no date has been set, this is likely to happen soon, probably in August before the U.N. General Assembly convenes in September in New York.

"I made it clear that the U.N. would be unable to proceed if the law establishing the court, as passed by Cambodia's parliament, differs from the Memorandum of Understanding," said Corell. But therein lies the rub. If the National Assembly is really an independent legislature of a sovereign country, how can it be expected to simply rubber stamp any law, particularly one with so much outside involvement?

The tribunal is by far the hottest political potato in Cambodia, and nobody really wants to be seen supporting the bill — or blocking it. If the assembly simply ratifies the draft, it can be accused of kowtowing to outside powers. If, on the other hand, the legislature attempts a genuine debate and offers changes and amendments, the lawmakers will be accused of bad faith or attempting to weaken the tribunal so that it will let off former Khmer Rouge officials now in high office or retirement.

The U.N. has already made several concessions to address Cambodian sovereignty concerns. One is to allow the tribunal to operate in Phnom Penh. That is different from, say, the tribunal established to rule on war crimes committed in territories of the former Yugoslavia, which meets in the Netherlands. Another was to balance the foreign judges with a majority of Cambodian judges in the three courts that make up the tribunal (two are needed for appeals) without allowing them sufficient voting strength to block an indictment at the trial level.

In comparison to Yugoslavia, modern Cambodia is much more a creation of the U.N. which is committed to fostering its democratic institutions. This dates back to 1993, when the U.N. sponsored the first elections designed to give the nation a fresh start. Cambodia remains the most precarious experiment in democratization in Asia. To that now is added the heavy responsibility of judging its own people for crimes against humanity.

"Cambodian objections [to the tribunal] always tend to be interpreted as weaseling," complained a foreign academic in Phnom Penh. "I can't see how [the bill] can come out of the assembly exactly as it went in." Assembly president Prince Norodom Ranariddh shares that view. The National Assembly must have a full right of review, he says. "We Cambodians need justice, but we also need peace."

On this matter, Prime Minister Hun Sen has been uncharacteristically modest all year. He noted on several occasions that he cannot simply order the National Assembly to pass any law. The premier, himself a former Khmer Rouge army commander, destroyed the Khmer Rouge military and political apparatus in a two-decade struggle. There is no evidence linking him to Khmer Rouge atrocities in the 1970s. It is to maintain the tribunal's independence that the U.N. wants to have the bill passed without modifications.

The debate reflects a country torn between the conflicting demands of retribution and the need for reconciliation. A partial royal pardon was given to Khmer Rouge foreign minister Ieng Sary in 1996, but not to Pol Pot's deputy, Nuon Chea, or his head-of-state, Khieu Samphan. For now, all three live freely in Pailin, in northwestern Cambodia. Last week a notorious commander, Chhouk Rin, 46, walked free after being acquitted of kidnapping and murdering 13 Cambodians and three foreign backpackers in 1994. A judge ruled he was immune from prosecution under the terms of a limited-duration law that rewarded Khmer Rouge defectors with amnesties.

Chhouk Rin was prosecuted only after France, Britain and Australia put pressure on the government. After the verdict, their ambassadors sought an understanding from the foreign office that the judge's ruling would be appealed by the government itself. Many wonder why immunity was not addressed at the time of his arrest, months before he came to trial.

Cases like that lead many to wonder what other crimes will go unpunished unless the tribunal is given sufficient independence to do its job properly. But before that, the 122 assembly members must do theirs, carefully juggling the conflicting demands of legislative independence, national sovereignty, the advance of democracy and the overpowering need to bring those responsible for Cambodia's national nightmare to justice. Cambodian democracy is on trial too.

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