Background

On 17 April 1975, the Government of Democratic Kampuchea - commonly known as the "Khmer Rouge" - came to power in Cambodia. In May 1975, Amnesty International sent a cable to the Cambodian government expressing its concern about reported executions of opponents to the new government and stating the organization's opposition to the death penalty. This was followed by two letters in February and May 1976 reiterating "deep concerns" about reports of widespread executions. The letters were copied at the time and sent with an accompanying briefing to all Amnesty International National Sections (reference No. N.S. 90/76). The increasingly grave reports received by Amnesty International of human rights violations in Cambodia were from then on summarized on a yearly basis in each and every annual report.

In June 1978, Amnesty International prepared a statement for submission to the United Nations Commission on Human Rights drawing its attention to allegations of violations of human rights in the then Democratic Kampuchea. From this time, the organization has advocated that those responsible for serious crimes must be brought to justice in a form recognized and endorsed by the United Nations.

During the Cambodian peace negotiations leading up to the Paris Accords signed in October 1991, Amnesty International advocated for any agreement to include provisions for the accountability for gross human rights violations. In a report dated 14 November 1990 (AI INDEX: ASA 23/05/90) the organization stated:

However, the resulting peace agreement only undertook to take "special measures" to ensure that the human rights "policies and practices of the past" would not recur. Sadly, the agreement did not provide for those responsible for the massive human rights violations of the past to be brought to justice.

In 1996 Amnesty International spoke out against the amnesty given to Ieng Sary, who held the post of Foreign Minister in the Government of Democratic Kampuchea. In an open letter addressed to King Sihanouk and the National Assembly, Amnesty International stated that it "...recognizes and appreciates the need for national reconciliation in Cambodia. However, the organization believes that any conciliatory steps which are taken independent of an effort to identify and hold accountable those responsible for human rights violations in the past, may seriously jeopardize human rights protection in the future".(1)

Amnesty International has not wavered from its position in the following years as discussion for the establishment of a tribunal ensued.

Amnesty International's current position and concerns regarding the proposed "Khmer Rouge" tribunal

Amnesty International welcomes the UN Secretary-General's report on Khmer Rouge trials (A/57/769 dated 31 March 2003) outlining the history of the negotiations which have led to the draft agreement now before the UN General Assembly for approval. This proposes the establishment of a mixed tribunal, incorporating international and Cambodian participation. The draft was presented on 17 March 2003 to the General Assembly. This proposal reflects the best efforts on the part of UN negotiators to provide a credible process meeting established international standards but within the major constraints imposed on the negotiation process by the UN General Assembly in resolution 57/228. Amnesty International has already given its preliminary comments on this draft (AI Index ASA 23/003/2003 dated 21 March 2003). The organization calls on the UN General Assembly to take further steps to ensure that all the international standards that form the basis of other international and mixed criminal processes endorsed by the UN are explicitly incorporated in the tribunal for Cambodia.

Despite several significant improvements on the previous draft text, which Amnesty International felt to be unacceptable because it fell far short of international standards, the organization believes the current draft remains seriously flawed. The combined provisions not only threaten the integrity of the legal process for the proposed Cambodian tribunal, but if approved, would set a dangerous precedent that could compromise fair trial standards for any future international or mixed tribunals which may be proposed to confront and end impunity for the most grave abuses of human rights and humanitarian law.

Amnesty International urges all members of the General Assembly to study carefully the UN Secretary-General's report - which expresses explicit reservations about the proposed Extraordinary Chambers given the precarious state of Cambodia's judiciary - as well as the observations made by Amnesty International below before voting on the present draft. The organization urges the General Assembly to make the improvements necessary to bring this agreement into line with international laws and standards and recommends specific steps that should be taken in this paper.

Amnesty International is not asking the General Assembly to set special standards for Cambodia. Since the long and difficult negotiations began in 1997, the organization has urged that Cambodia be treated according to the same international laws and standards which apply to all member states. These are the very rules to which Cambodia has committed itself through ratification of human rights treaties and the Rome Statute of the International Criminal Court (the Rome Statute). Amnesty International notes that many Cambodian civil society groups, which are engaged in human rights and judicial reform, share its concerns. One organization recently stated that "we do not need show trials but fair trials."(2)

Amnesty International deeply regrets that, in its resolution (57/228) of 18 December 2002, the General Assembly instructed the Secretary-General to resume negotiations from what Amnesty International believes to be a fundamentally flawed starting point: the Assembly stipulated that the tribunals had to be created within the framework of national law, namely the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the prosecution of Crimes committed during the Period of Democratic Kampuchea (the Cambodian Law on the Extraordinary Chambers), whereas the UN Legal Counsel had previously observed that "proceedings of the Extraordinary Chambers would not guarantee the international standards of justice required for the United Nations to continue to work towards their establishment."(3) This in effect, tied the hands of the UN negotiating team and has led inevitably to the current inadequate draft agreement. The General Assembly must bear the burden of responsibility in ensuring that international standards for fair trial and due process are not undermined.

It is not clear why the government of Cambodia has any difficulties in agreeing to these standards in its negotiations with the Office of Legal Affairs of the UN especially given that Cambodia itself is a party to all core human rights conventions.(4) Cambodia is also a party to the Rome Statute, which sets out the legal framework for the International Criminal Court. No court, including the proposed tribunal, should therefore fall short of the international standards which the Cambodian government is bound to uphold.

Indeed, Amnesty International believes that Cambodia's stated commitment to international standards through ratification on the one hand, and its apparent unwillingness to incorporate explicitly and clearly these same standards in this draft agreement on the other, should be examined further. Amnesty International calls on the General Assembly, should it decide to endorse this draft, to state unambiguously that the agreement has to be implemented in the full observance of the human rights treaties to which Cambodia is a state party, and to ensure that the agreement should be amended accordingly.

Amnesty International makes the following comments on the draft agreement in the spirit of commitment to achieving true justice for the Cambodian people, as international law and standards require, and as their civil society has requested. Amnesty International also appeals to the General Assembly to use this opportunity to follow up on work done by the Secretary-General's representatives to improve the draft and secure the explicit commitment of the government of Cambodia to a proper process that meets international standards.

Improvements do not address continuing compelling concerns

Two of the draft provisions which Amnesty International welcomes are, first, the exclusion of the death penalty (draft Article 10), which is consistent with penalties that can be imposed by other international courts, and second, provisions for the proceedings to be held in public at all times except "where publicity would prejudice the interests of justice" (draft Article 12.2).

The new draft refers explicitly to Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR), closely following the General Assembly's mandate in Resolution 57/228. These two articles describe in detail some fundamental rights to a fair trial. However, the explicit reference to only these two Articles of the ICCPR and not to others that are also important for securing the right to a fair trial sends a mixed signal. The door is left open for claims to be made that important fair trial rights (those relating to pre-trial rights in Article 9 of the ICCPR for example) do not apply because they are not explicitly included in the text of this agreement. It is more appropriate, for the sake of legal clarity, and to avoid dispute in future, to include explicitly the full range of rights - both for victims and witnesses, and for defendants and suspects.

Amnesty International also notes references in the text implying "connections" with progressive substantive law and procedural standards in the Rome Statute, and that where Cambodian law is silent or unclear, international practice could be applied. This is welcome, but could go further - fair trial rights as reflected in a range of international law and standards should be included explicitly.(5)

This is not just a question of legal nicety, but of those agreeing to the text demonstrating, in the explicit detail of this agreement, an active commitment to a fair process. The Secretary-General's report has indicated that this is lacking on the part of the Cambodian negotiators. The tone and content of his report, and the draft agreement itself, indicates that the potential for disagreement between judges, prosecutors and administrative staff is substantial, with differing opinions forming along "Cambodian" against "international" lines. In such a situation, absolute clarity about the rights of those who will come before the court for justice is essential. The absence of clarity leaves the door open for claims to be made that important fair trial rights do not apply because they are not explicitly included in the text of this agreement.

Amnesty International notes the significant improvement in the text relating to the legal standing of this draft agreement, [Article 31], which provides for the agreement to apply as Cambodian domestic law(6). Given its proposed legal standing, it is all the more important that it reflects Cambodia's existing international legal obligations unambiguously, to avoid any possible debate about which law applies.

Amnesties: improvements do not go far enough

Amnesty International welcomes the exclusion of amnesty or pardon for anyone investigated or convicted for crimes covered by the agreement, a clause which potentially applies to anyone previously granted an amnesty by the Cambodian authorities (draft Article 11). However we note with concern that this is only a possibility. Postponement of a decision on a previously granted amnesty for consideration by the Extraordinary Chamber once it is established is disappointing - amnesties are prohibited for the most serious crimes under international law such as genocide, torture, and crimes against humanity and this should also be the case in Cambodia. For example, in the case of the Sierra Leone mixed tribunal, the UN rejected amnesties which had already been agreed in the Lomé peace agreement.(7) Amnesty International calls on the General Assembly, should it decide to endorse this draft, to ensure that this important precedent is followed, and that the agreement should be amended accordingly.

Amnesty International's concerns: endemic weakness of the Cambodian judicial system will dominate the tribunal

Detailed improvements proposed by the UN to ensure that the tribunal meets international standards, particularly relating to the requirement for an independent court by providing that the majority of judges as well as the prosecutor and the investigating judge should be international personnel, were rejected by the Cambodian negotiators on the grounds that the structure to be established had to be part of the existing Cambodian law on the Extraordinary Chambers. This law requires a majority of Cambodian judges.

Amnesty International believes that the tribunal will be flawed because the Cambodian judiciary is not independent, and under the current draft agreement, they will, contrary to UN proposals, constitute the majority of the judges in the tribunal and make up one of two prosecutors and one of two investigating judges.

During the period of Khmer Rouge rule, the court system was completely abandoned. The vast majority of judges and lawyers who remained in Cambodia during that time died or were killed. Of those who survived, most fled when the Vietnamese army invaded Cambodia on 25 December 1978. When the Democratic Kampuchea regime fell on 7 January 1979, there were only 10 qualified lawyers left in the country. It is perhaps not surprising therefore that the Cambodian judicial system still suffers from poor facilities, low salaries, executive interference, lack of education and training and weak and poorly enforced legislation.(8)

In Amnesty International's view, the Cambodian judicial system is weak and subject to political pressures especially in high profile cases. It is therefore currently unable to ensure that trials are conducted in a manner that would conform to international standards of fairness. Cambodian citizens are well aware of the inadequacies and the political interference in the judicial system where corruption is also commonplace. Amnesty International has reported on these concerns for some time.(9) Amnesty International therefore welcomes the inclusion of international judges, an international co-investigating judge and an international co-prosecutor in the draft proposal as essential to address current weaknesses, but does not believe that these proposals go far enough As the Secretary-General observes in his report to the General Assembly "I cannot but recall the reports of my Special Representative for human rights in Cambodia, who has consistently found there to be little respect on the part of the Cambodian courts for the most elementary features of the right to a fair trial. I consequently remain concerned that these important provisions of the draft agreement [in sections IV D and E] might not be fully respected by the Extraordinary Chambers and that established international standards of justice, fairness and due process might therefore not be ensured"(10).

The General Assembly acknowledges concerns regarding judicial independence

Amnesty International notes that in the course of the same session that mandated the Secretary-General to continue negotiations with the government of Cambodia, the General Assembly also adopted a resolution (57/225) that noted with concern "continued problems related to the rule of law and the functioning of the judiciary resulting from inter alia, corruption and interference by the executive with the independence of the judiciary". Indeed, the Secretary-General, refers in his report specifically to these observations and said that he "...would very much have preferred that the draft agreement provide for both Extraordinary Chambers to be composed of a majority of international judges. I was, and continue to be, of the view that international judges, who would not be dependent in any way upon the executive authority in Cambodia, would be much less likely to be influenced by or yield to any interference from that quarter"(11). The General Assembly needs to address this contradiction between its resolutions 57/228 and 57/225, in mandating a negotiation which presupposes a majority vote of Cambodian judges, while stating the day before that Cambodian judges are frequently not independent, and some are corrupt.

Supermajority proposals do not address the real problem effectively

Current proposals for "supermajorities" fail to guarantee the necessary independence and impartiality of the judicial process.

The "cumbersome"(12) decision making mechanism requires a "supermajority" decision. Although Cambodian judges outnumber international judges at all levels, a "supermajority" - in which one international judge must agree with the Cambodian majority - is required for a positive decision to be made. However, the fact remains that this process risks leading to a split between Cambodian and international judges and prosecutors, and tactical decisions on the basis of nationality, rather than independent decisions on the basis of the facts and the law.

Amnesty International believes that stronger guarantees are necessary to ensure that justice is done and seen to be done in a process that is credible, independent and impartial - this will require an overall majority of international judges, for the very reason outlined by the General Assembly in Resolution 57/225: the risk of corruption and political influence being brought to bear on the Cambodian judiciary. Vigorous and practical steps should also be taken to improve the independence of Cambodian judges, not just for the sake of the proposed international tribunal, but for the day to day fair administration of justice in the ordinary Cambodian courts.

Concerns about the independence and effectiveness of investigating judges, prosecutors, and senior court administrators

Complex decision-making and conflict resolution processes are mandated in the draft for Cambodian and international investigating judges and court administrators(13). At the investigation and indictment stages, disagreement between Cambodian and international staff will now lead to the prosecution going ahead, a provision which Amnesty International welcomes, as a way of ensuring that lack of agreement does not lead to stalemate. However, Amnesty International remains concerned that, like the "supermajority" proposal for the judges, current draft provisions lead to a potential for conflict along national lines, and complex and onerous working methods. Amnesty International believes that the causes leading to the proposal of these mechanisms - the lack of independence in the Cambodian legal system - should be dealt with, rather than positing a cumbersome working methodology aimed at avoiding abuses of the tribunal's powers.

Failure to incorporate explicitly the strongest principles of criminal responsibility and law on defences

The draft agreement fails to incorporate the strongest possible international principles of criminal responsibility and limits on defences as recognised in conventional and customary international law. For example, nothing in the agreement prevents an accused from successfully claiming superior orders as a defence: given that Pol Pot had overall control during the period in question, and is now dead, defendants could waste time with petitioning the court on this issue. Amnesty International notes that the Cambodian law establishing the law does not accept superior orders as a defence [the Cambodian law on the Extraordinary Chambers, Article 29]: this commitment could be expressed explicitly in the text to prevent the above from happening.

Inadequate victim and witness protection

There is scant provision for victim and witness protection: the General Assembly could take steps to remedy this through ordering the preparation of an accompanying document detailing the procedures necessary for an effective victim and witness protection program with sufficient resources, built on the extensive experience gained by existing international tribunals. Such a program would need to apply to judges, prosecutors, defence lawyers and others. Victims and witnesses will not come forward to testify without the necessary assurances for their safety from international, rather than domestic authorities.

Absence of provisions on reparations

It is a matter of grave concern that there is no provision in the draft agreement for the Extraordinary Chambers to award reparations. Unless this is provided for, it would constitute a major retreat from the Rome Statute, a treaty which Cambodia has ratified, and is obliged to adjust its domestic law accordingly. The Extraordinary Chambers should be able to award all forms of reparations to victims and their families, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Seize the opportunity to link the proposed judicial procedure to the rebuilding of the Cambodian criminal justice system

Consideration of the draft agreement leads inevitably to reflections on the wider issues relating to justice in Cambodia, and for the international community to address the Cambodian government's failure to ensure improvements in the justice system, particularly, its failure to commit to ensuring independence of the judiciary(14).

Amnesty International believes that the considerable investment required from both the international community and Cambodia to set up a judicial process that meets international standards to try only a handful of people responsible for serious crimes must also be made to benefit the Cambodian judicial system as a whole. The work of the Extraordinary Chambers, if established, must be used to assist the continuing program of capacity building and technical assistance in the Cambodian judicial sector, particularly bringing Cambodian criminal law into line with ICC standards.(15) The problems of impunity in Cambodia cannot be addressed simply by a handful of high profile prosecutions.

Regular reporting to the General Assembly

The Secretary-General concludes his report by observing that "Doubts might therefore still remain as to whether the provisions of the draft agreement relating to the structure and organization of the Extraordinary Chambers would fully ensure their credibility, given the precarious state of the judiciary in Cambodia"(16). He draws the attention of the General Assembly to Article 28 of the draft Agreement, by which any deviation by the government from its obligations under the agreement could lead to the UN withdrawing its cooperation and assistance from the process. However, the question arises how, if the draft agreement were to be approved, the General Assembly would monitor the government's compliance with its obligations given the real risk that it might interfere with the independence of the judicial process the General Assembly now seeks to establish to bring the Khmer Rouge leaders to trial.

Should it consider approving an agreement, Amnesty International would call on the General Assembly to request the UN to provide it with regular, public, updates on the government's cooperation with the Khmer Rouge trials and on how specific elements of the proposed agreement, notably those designed to ensure independence and impartiality of the process and compliance with international law, are being observed in practice.

Conclusion

The moment is now "for the General Assembly on one hand, and the relevant constitutional authorities on the other, to decide whether or not to conclude an agreement and, if so whether to do so on the basis of the text that has been initialled, or whether that text should be modified in any regard before it is signed."(17)

Amnesty International believes that substantial changes are still to be made to this draft, and that the General Assembly should seize this opportunity to ensure that international law and standards are applied consistently in Cambodia, as they have been upheld in the other international tribunals which the UN has endorsed around the world. The Cambodian people deserve no less.

APPENDIX ONE: Text of statements by Cambodian NGOs on bringing the Khmer Rouge to justice

Cambodian Human Rights Action Committee (21 February 2002)

Address: #12, street 282, Khan Chamcar Mon,

Tel: 720032/ 362524, E-mail: cdplas@worldmail.com.kh

Press release, February 21, 2002

The Cambodian Human Rights Action Committee (CHRAC), a coalition of 18* local NGOs, would like to express its understanding of and support for the United Nations decision to withdraw from the current process of establishing a tribunal for the Khmer Rouge. For the past four years we have watched carefully the difficulties the UN has faced in dealing with the Cambodian Government over the establishment of a tribunal which will meet internationally accepted standards of justice.

Nevertheless, we, and the Cambodian people in general, are deeply saddened and disappointed by the loss of hope for justice with regard to this terrible period in our recent history. The following are among our reasons for sadness at the loss of the prospect of a credible tribunal:

This loss will leave the millions of Cambodians who perished and all who suffered without recourse to law and justice;

It will encourage the perpetrators of genocide in their belief in impunity and give them cause to commit further crimes;

It shows the UN Convention on Genocide (and by implication other UN Conventions) to be helpless in the face of human suffering and crime;

It distinguishes Cambodia, despite Cambodian ratification of the Convention on Genocide, from countries such as Rwanda, the former Yugoslavia and East Timor, where credible tribunals have been established and are working;

It discourages other countries where there are genocide and crimes against humanity from the hope of redress.
The United Nations` withdrawal from the process of negotiating an international tribunal leaves the matter of redress and justice with regard to the Khmer Rouge in the hands of the Cambodian courts. The Cambodian courts already held one tribunal in 1979; it did not provide anything like the necessary redress. In 1997, when the question of a tribunal re-arose, the then co-Prime Ministers Norodom Ranariddh and Hun Sen spoke strongly of Cambodian courts` incapacity to fulfil this function. In January 1999 the CHRAC added its own appeal to UN Secretary General Kofi Annan for UN assistance.

CHRAC is unwilling to let the matter rest in this impasse. We, as well as the rest of the human rights community and the Cambodian people at large, continue to believe in the need for and power of justice to provide some closure for this terrible period in our history. We also believe that only the United Nations has the power and credibility needed for justice.

We do not ask the UN to re-enter the negotiations which have so clearly failed despite its best efforts. We do, however, ask the UN to persist in its best efforts to provide for redress and justice in Cambodia. We also ask the UN to refuse participation or support for any process which does not meet international standards.

With regard to individual member states of the UN, CHRAC urges them not to consider participating in any tribunal unless it is held under the auspices of the UN.

CHRAC feels that national sovereignty should not be an obstruction to truth and justice. It wishes to appeal to our government to fulfill its obligations to find justice for our dead by not hesitating to accept the international standards of justice. Our government should make efforts
to reach up to the UN and accept its terms and conditions.

CHRAC also wishes to appeal to the international community to encourage our government to make such endeavors. Any political expediency simply to have a trial to save face would turn this trial into a political trial, which would benefit no one.

For further information, please contact:

Mr. Sok Sam Oeun, Executive Director of CDP at 012 901 199
Mr. Thun Saray, President of ADHOC at 016 880 509
Dr. Lao Mong Hay, Executive Director of KID at 012 959 454

* ADHOC - CDP - CCPCR - CWCC - CHHRA - Cham Cambodia - GENEROUS - IDA -
KID - KSA - KYA - KKKHRA - KKKHRDA - KHRACO - LICADHO - LAC - TASK FORCE - VIGILANCE

Cambodian Human Rights Action Committee (9 December 2002)

ADHOC - CCPCR - CDP - Cham Cambodia - CHHRA - CWCC - GENEROUS - IDA - KHRACO - KID - KKKHRA - KKKHRDA - KSA - KYA - LAC - LICADHO - TASK FORCE - VIGILANCE

Address: #1, St.158, Beng Raing, Daun Pen, P.P, Tel/Fax: 214 276, 012 934 867, 012 848 124, E-mail: chrac@forum.org.kh

Press release, December 9, 2002

The Cambodian Human Rights Action Committee (CHRAC), a coalition of 18 local NGOs, wishes to appeal to the Cambodian government and United Nations for the establishment of an independent, impartial and credible tribunal with internationally recognized standards to ensure justice for the Cambodian people in future negotiations following the recent passing of the resolution with regards to the Khmer Rouge trials.

Without a credible tribunal that will try perpetrators responsible for crimes against humanity committed during the Khmer Rouge period from 1975-1979, the loss will leave the millions of Cambodians who perished and all who suffered without recourse to law and justice; it will encourage the perpetrators of genocide in their belief in impunity and give them cause to commit further crimes; it will show the UN Convention on Genocide (and by implication other UN Conventions) to be helpless in the face of human suffering and crime; it will distinguish Cambodia, despite Cambodian ratification of the Convention on Genocide, from countries such as Rwanda, the former Yugoslavia and East Timor, where credible tribunals have been established and are working; it will discourage other countries where there are genocide and crimes against humanity from the hope of redress.

CHRAC, as well as the rest of the human rights community, and the Cambodian people at large, continue to believe in the need for and power of justice to provide some closure for this terrible period in Cambodian history.

CHRAC wishes to appeal to the Cambodian government to fulfill its obligations to find justice for the dead by accepting the international standards of justice. CHRAC also wishes to appeal to the international community to encourage the Cambodian government to make such endeavors. Any political expediency simply to have a trial to save face would turn this trial into a political trial, which would benefit no one.

For further information, please contact:

Mr. Sok Sam Oeun, Executive Director of CDP at 012 901 199

Dr. Kek Galabru, President of LICADHO 012 802 506

Cambodian Defenders Project (13 March 2003)

March 13, 2003

Minimum Standards for Fair Trials of Leaders of Democratic Kampuchea

Most potential defendants in a possible KR trial are now very old, so it will be too late to bring them to justice if the tribunal is delayed again. We do not need show trials but fair trials. If this tribunal is well set up with minimum standards for fair trial, Cambodia will gain the following:

■ Some measure of justice for the victims of the DK regime,

■ The trials can provide a model for the future Cambodian Court system,

■ The trials will act as a deterrent to Cambodian leaders, who shall know that they cannot escape justice and responsibility for their misconduct,

■ The people and the world will know the truth about why the KR leaders killed their own people like this, and

■ The Cambodian people who suffered in Pol Pot's time will be relieved from KR trauma.

In order to achieve the above goals, the Cambodian Defenders Project would like to recommend the following:

1. All judges, whether foreign or Cambodian, should be approved by the United Nations: As Cambodia has never possessed independent mechanisms or demonstrated the will for neutral selection of judges, the United Nations should have final approval authority over all judicial appointments, whether foreign or Cambodian. Criteria for selection should focus on a reputation of respect for judicial independence as well as skill. To protect independence of decisions of the judicial panel, impartiality, even in the face of intimidation, must be an non-negotiable qualification for all the judges. The U.N. can train all appointed judges in judicial procedure and the laws applicable to the trials in order to enhance their skill.

2. Court Decision: In the current KR law, the decision of the court is by supermajority. Thus, for example, a decision of the first instance court can only be made by four out of five judges. It is very difficult to achieve this decision. We recommend to have only a simple majority but it shall be a mixed decision so that it will be easier to reach a decision.

3. Each Prosecutor shall have power to charge: In accordance with the current law, the decision of charging shall be made by consensus of both co-prosecutors, Cambodian and foreign. The procedure in case of disagreement may tend towards delay or deadlock, so we recommend that each prosecutor, Cambodian or foreign, shall have power to charge the suspect.

4. Participation of non-Cambodian investigators: The current law has no provisions about police investigators. Even where the judges and prosecutors are strong, if the investigators are weak or incompetent, the prosecutors will have no case for charging and there will no case for trial. So, we would like to recommend that provision be made for international police or foreign investigators to assist the prosecutor to collect evidence.

5. Adequate security for all court officials: Fear about physical security would be most likely to impact on the decisions of judges on the bench. An adequate protection program, managed by both U.N. and Cambodian personnel, must be provided for all judges, prosecutors, investigators and other court officials, especially the Cambodians and their families residing in Cambodia. Long-term security should be provided as needed.

6. A foreign chief administrator appointed by the United Nations: In order to help ensure that management of the budget and administrative tasks can be handled in a professional and independent manner, the top administrator for the trials should be foreign and selected by the United Nations.

7. Autonomous budget: In order to avoid the potential for the exertion of financial pressure over the court's actors, an autonomous budget managed by the chief administrator should be established to pay all costs of the trials, including salaries, materials, investigations, witness protection, etc.

8. Internationally recognized legislation: New legislation, including composition and applicability of substantive law to such trials, must be enacted and adhere to the Constitution and international human rights law. As the existing criminal procedure laws do not meet international standards, rules of procedure and evidence must be encoded in new legislation. Only those substantive laws, including customary law, in force at the time of the crime should apply in the trials. The law-making process must be an open one, regardless of who authors the legislation. Drafts of all statutes concerning the trials must be publicly accessible and opened to public commentary. Because Cambodia has ratified the Rome Statute, it is better for the KR tribunal to use the court procedure of the ICC.

9. Individual jurisdiction: Trials should hold accountable those most responsible for the atrocities committed during the Democratic Kampuchea regime between 1975 and 1979. While all those responsible should be brought to justice, practical difficulties in doing so necessitate this more limited scope for the trials discussed here. The present law, art 1, currently provides for this.

10. Arrest of indictees: The Cambodian government should cooperate with the prosecutor by arresting all those indicted by the court.

11. Right to counsel: This tribunal is a mixed one. It has mixed judges, both foreign and Cambodian, and mixed prosecutors, but in accordance with the law on the Bar of Cambodia, only Cambodian lawyers can represent their clients in court. In accordance with principles of fair trial, defendants must have a competent lawyer of their choice. Those who cannot afford a lawyer should be provided with a list of lawyers, both foreign and Cambodian, by the United Nations and the Cambodian government, from which they may select free defense counsel. All elements of right to counsel, including the right of foreign lawyers to represent defendants in these proceedings, must be encoded in legislation and protected by the U.N. and the Cambodian government in accordance with fair trial standards.

12. Right to appeal: In keeping with the International Covenant on Civil and Political Rights, the defendants must have a right to appeal. The court of appeal must adhere to the same standards, including judicial independence, as identified in this statement, and the decision of the appellate court must be final. A two-tiered appeal structure is provided by the current law.

13. Amnesty: The law governing the tribunal should make it clear that no prior amnesties will be respected.

14. Royal pardon: The King must be prevented by legislation from granting a pardon to anyone convicted in these trials.

15. Death penalty: In accordance with the Cambodian Constitution, the death penalty must not be an option in these trials. The current law omits this penalty.

16. Protection of trial participants: Witnesses, victims, lawyers, defendants and others whose participation in such trials can put their personal security at risk should be protected by a protection program managed by both Cambodian and U.N. personnel. A protection program should make long-term protection available as needed.

Contact person:

-Sok Sam Oeun, Executive Director, Tel: 012 901199

APPENDIX TWO: Full text of the Report of the Secretary-General on Khmer Rouge trials

United Nations General Assembly

Distr.: General
31 March 2003
Original: English

Fifty-seventh session
Agenda item 109 (b)
Human rights questions: human rights questions,
including alternative approaches for improving
the effective enjoyment of human rights and
fundamental freedoms

Report of the Secretary-General on Khmer Rouge trials

Summary

Representatives of the Secretary-General and Cambodia have negotiated and elaborated a text of a draft Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea. The draft agreement provides for the establishment of Extraordinary Chambers in the national courts of Cambodia, established and operated with international assistance. The Chambers would have jurisdiction to try senior leaders of Democratic Kampuchea and those most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

The Secretary-General considers the draft agreement a considerable improvement over the draft that had been under discussion during his previous negotiations with the Government of Cambodia, particularly the provisions on the status of the agreement and its provisions regarding the procedures that would have to be followed in prosecutions and trials. The negotiations which resulted in the elaboration of the text of the draft agreement were protracted and, at times, difficult. There still remains doubt in some quarters regarding the credibility of the Extraordinary Chambers, given the precarious state of the judiciary in Cambodia. It is, however, the hope of the Secretary-General that the Government, in the implementation of the agreement, would carry out fully the obligations that it would assume. It is worthwhile noting that, under the terms of the draft agreement, any deviation by the Government from the obligations undertaken could lead to the United Nations withdrawing its cooperation and assistance from the process.

The draft agreement has been initialled, so as to indicate that it is the text that the two delegations have elaborated. It is now for the General Assembly to decide whether the United Nations should proceed to conclude an agreement with the Government of Cambodia based upon that draft.

The report also describes the requirements of the Extraordinary Chambers and their associated institutions in terms of funds, equipment, services and personnel. It presents options for Financing the assistance that the United Nations would provide under the draft agreement and concludes that assessed contributions are the only mechanism that would be viable and sustainable and that would ensure the early establishment of the Extraordinary Chambers and the prompt commencement of their operations.

1. Introduction

1. The General Assembly, in its resolution 57/228 of 18 December 2002, requested me to resume negotiations, without delay, to conclude an agreement with the Government of Cambodia on the establishment of Extraordinary Chambers within the existing court structure of Cambodia (hereinafter "Extraordinary Chambers") for the prosecution of crimes committed during the period of Democratic Kampuchea.

2. The General Assembly also requested that I submit to it, no later than 90 days from the adoption of the resolution, a report on the implementation of the resolution, in particular on my consultations and negotiations with the Government of Cambodia concerning the establishment of the Extraordinary Chambers.

3. The General Assembly furthermore requested me to include in my report recommendations for the efficient and cost-effective operation of the Extraordinary Chambers, including the amount of voluntary contributions of funds, equipment and services to the Extraordinary Chambers, inter alia, through the offer of expert personnel, that might be needed from States, intergovernmental organizations and non-governmental organizations.

4. On 17 March 2003, I wrote to the President of the General Assembly, providing him and, through him, the members of the Assembly with an initial, brief report on my negotiations with the Government of Cambodia (A/57/758). In the letter, I stated that I would shortly be submitting a full report to the General Assembly in response to the requests contained in resolution 57/228. The present report is submitted for that purpose.
5. The present report is in five parts. Section II briefly sets out the historical background. Section III consists in an account of the resumed negotiations between the United Nations and the Government of Cambodia that took place following the adoption of resolution 57/228. Section IV explains the provisions of the draft agreement that has been elaborated as a result of those negotiations. Section V describes the steps that would need to be taken for an agreement to be concluded between the United Nations and the Government of Cambodia on the basis of that draft and for that agreement to enter into force. Section VI addresses the practical steps that would need to be taken to implement the draft agreement. In particular, it
describes the international assistance that would be needed, in terms of personnel, equipment, services and funds, to permit the early establishment of the Extraordinary Chambers and to sustain their efficient and cost-effective operation. It also contains an assessment of the viability and sustainability of the financial mechanism envisaged by the General Assembly in the resolution, together with an alternative solution for the Assembly's consideration.

II. Background

6. On 21 June 1997, the two Prime Ministers of Cambodia sent a letter to me requesting the assistance of the United Nations in bringing to justice persons responsible for genocide and crimes against humanity committed during the period of Democratic Kampuchea. I transmitted that letter to the Presidents of the General Assembly and of the Security Council on 23 June 1997 (A/51/930-S/1997/488). The General Assembly, in its resolution 52/135 of 12 December 1997, asked me to examine that request, including the possibility of appointing a group of experts to evaluate the existing evidence and to propose further measures. On 13 July 1998, I appointed a Group of Experts to evaluate the existing evidence, assess the feasibility of bringing Khmer Rouge leaders to justice and explore options for doing so before
an international or national jurisdiction. On 15 March 1999, I submitted the report of the Group of Experts to the General Assembly and to the Security Council (A/53/850-S/1999/231). In its report, the Group of Experts recommended the establishment of an international tribunal to try Khmer Rouge officials responsible for crimes against humanity and genocide committed between 17 April 1975 and 7 January 1979. That option was not acceptable to the Government of Cambodia.

7. On 17 June 1999, Prime Minister Hun Sen wrote to me once more, asking the United Nations to provide experts to assist Cambodia in drafting legislation that would provide for a special national Cambodian court to try Khmer Rouge leaders and that would provide for foreign judges and prosecutors to participate in its proceedings. In response to that request, I entered into negotiations with the Government of Cambodia with a view to reaching agreement on how such a court would have to be organized and how it would have to function, if the United Nations was to provide or arrange assistance to help establish it and help it to function. Those negotiations lasted two and a half years. In February 2002, I concluded that I
was no longer in a position to continue them.

III. The resumed negotiations

8. The resumption of negotiations between the United Nations and the Government of Cambodia in accordance with General Assembly resolution 57/228 took place in two stages.

A. New York: January 2003

9. The first stage consisted in a series of six exploratory meetings, held at United Nations Headquarters between 6 and 13 January 2003. The Government of Cambodia was represented at those meetings by a delegation led by Mr. Sok An, Senior Minister in charge of the Council of Ministers. The United Nations team was led by Mr. Hans Corell, the Under-Secretary-General for Legal Affairs and Legal Counsel. The purpose of these exploratory meetings was to enable both me and the Government of Cambodia to gain a better understanding of how we each saw the task before us, to ascertain areas of common ground and to identify the issues that would need to be resolved in the negotiations that lay ahead.

10. In paragraph I of resolution 57/228, the General Assembly specifically mandated me to negotiate to conclude an agreement which would be consistent with the provisions of that resolution. It was my understanding that, to be consistent with the terms of the resolution, any agreement between the United Nations and the Government of Cambodia would have to satisfy the following conditions:

(a) The agreement would have to respect and give concrete effect to the principle that the Extraordinary Chambers are to be national courts, within the existing court structure of Cambodia, established and operated with international assistance;(18)

(b) The agreement would have to ensure that the Extraordinary Chambers have subject-matter jurisdiction consistent with that set forth in Cambodia's Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (the "Law") and that they have personal jurisdiction over the senior leaders of Democratic Kampuchea and those who were most responsible for the crimes specified in that Law;(19)

(c) The agreement would have to provide for the existence of an appellate chamber within the Extraordinary Chambers;(20)

(d) The agreement would have to ensure that prosecutions and trials before the Extraordinary Chambers comply with established international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the International Covenant on Civil and Political Rights;(21)

(e) The agreement would have to ensure that the process of prosecution and trial before the Extraordinary Chambers is a credible one, that complies with established international standards regarding the independence and impartiality of the judiciary, the effectiveness, impartiality and fairness of prosecutors and the integrity of the judicial process;(22)

(f) The agreement would have to be so framed that the Extraordinary Chambers can be established as early as possible, begin to function promptly and thereafter operate on a sustained basis and in an efficient and cost-effective manner. Otherwise, the opportunity of bringing to justice those responsible for serious violations of Cambodian and international law during the period of Democratic Kampuchea might soon be lost;(23)

(g) In addition to these six substantive conditions, the General Assembly also laid down a seventh condition, of a more procedural nature: namely, that the agreement would have to be based on previous negotiations that had taken place between the United Nations and the Government of Cambodia;(24)

11. In the light of the above, it was my understanding that resumed negotiations should be based upon, and so take as their point of departure, the draft agreement which had been under discussion during the course of the previous negotiations between the United Nations and the Government of Cambodia, which had come to an end on 8 February 2002.

12. At the same time, it was also my considered view that the General Assembly had given me a clear and unambiguous mandate to negotiate for an agreement that would incorporate certain changes to that draft.

13. Two factors in particular confirmed me in that view. The first was General Assembly resolution 57/225 on the situation of human rights in Cambodia. In that resolution, which it had adopted on the very same day as resolution 57/228, the Assembly "note[d] with concern the continued problems related to the rule of law and the functioning of the judiciary [in Cambodia] resulting from, inter alia, corruption and interference by the executive with the independence of the judiciary".(25) I clearly had to take account of this Finding by the General Assembly when it came to implementing paragraph 5 of resolution 57/228. In particular, it was clear to me that, if I was to comply with the terms of the mandate that the General Assembly had given me, I would have to re-examine the draft agreement that had previously been under discussion and, where necessary, propose adjustments to that draft in order to ensure that the impartiality and independence of the Extraordinary Chambers and the integrity and credibility of their proceedings were fully guaranteed.

14. The second factor was my experience in the previous negotiations with the Government of Cambodia. Throughout those previous negotiations, the Cambodian Government had exhibited a lack of urgency, together with an absence of the active and positive commitment to the process that would be essential when it came to implementing any agreement and to establishing the Extraordinary Chambers, making them operational and ensuring their sustained operation. Indeed, it was this lack of commitment on the part of the Government which had been the main reason why I came to the conclusion, on 8 February 2002, that I was no longer in a position to continue with the previous negotiations. Naturally, I could not ignore this experience when it came to deciding how to give effect to the wish of the General
Assembly, reflected in paragraphs 1, 9 and 10 of resolution 57/228, that any agreement regarding the Extraordinary Chambers should facilitate their early establishment and their efficient and expeditious operation.
15. The draft agreement that had been under discussion during the previous negotiations had provided for the Extraordinary Chambers to be structured and organized in a way that was highly complex and which afforded ample scope for obstruction and delay in the conduct of their proceedings. While far from ideal, that structure and organization would nevertheless have been workable if the Government of Cambodia had been fully committed to establishing the Extraordinary Chambers and making them work. It had become evident, though, as the previous negotiations went on, that the commitment of the Government could not be taken for granted. In those circumstances, it was clear to me that the structure and organization of the Extraordinary Chambers would have to be simplified, so as to make it easier to set them up quickly and eliminate obstacles to their expeditious and efficient operation. Otherwise, "the opportunity to bring those responsible to justice" might well be lost and the whole objective of the General Assembly resolution defeated.

16. I accordingly advanced the following proposals during the exploratory meetings that took place in New York:

(a) The agreement should lay down how the Extraordinary Chambers were to be structured and organized and how they were to function, if they were to receive international assistance from the United Nations. If the Government were, at a later date, to change the structure and organization of the Extraordinary Chambers so that they failed to conform with the agreement, or if it were to cause them to function in a manner that did not conform with the terms of the agreement, then the United Nations would reserve the right to cease to provide assistance under the agreement;

(b) The structure of the Extraordinary Chambers, as foreseen during the previous negotiations, should be simplified in a number of respects. This would make it possible to establish the Chambers as early as possible, enable them to begin to function promptly and make their sustained operation more cost-effective and efficient. It would also enhance their credibility, by minimizing the scope for delay in the conduct of investigations, prosecutions and trials. The agreement should accordingly provide for the Extraordinary Chambers and their associated bodies to be structured as follows:

- The Chambers should have a simple two-tier structure, consisting of a Trial Chamber and an Appeals Chamber. The draft that had previously been under discussion had provided for a more complex, three-tier structure, consisting of a Trial Court, an Appeals Court and a Supreme Court;

- The Trial Chamber should be composed of three judges and the Appeals Chamber of five judges. The earlier draft had envisaged five judges in the Trial Court and seven in the Appeals Court;

- There should be one prosecutor and one investigating judge. The earlier draft had envisaged two co-prosecutors and two co-investigating judges;

- There would consequently not be any need for a mechanism to settle disputes between co-prosecutors or between co-investigating judges. The Pre-Trial Chamber, which had originally been envisaged for that purpose, would therefore not be necessary;

-The official working languages of the Extraordinary Chambers should be Khmer, English and French. There should not be any further official working languages;

(c) In order to ensure the impartiality, independence and credibility of investigations, prosecutions and trials, the following adjustments should be made to the draft agreement that had been under discussion during the previous negotiations:

-A majority of judges, both in the Trial Chamber and in the Appeals Chamber, should be international personnel. The earlier draft had provided for Cambodian judges to make up a majority of the bench;

- Decisions of the Chambers should be taken by a simple majority vote. The earlier draft had provided for decisions to be taken by a "supermajority", consisting of a simple majority of the judges, plus one;

- Both the prosecutor and the investigating judge should be international personnel;

(d) In order to ensure conformity with international standards of justice, fairness and due process of law, the agreement should contain the following provisions:

- The Extraordinary Chambers should exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the International Covenant on Civil and Political Rights;

- The rights of the accused enshrined in those articles of the Covenant should at all times be respected, including their right to engage counsel of their own choosing;

- There should be the fullest possible respect for the right of the accused to a fair and public hearing. Representatives of States, the Secretary-General and international and national non-governmental organizations, as well as the news media, should at all times have access to, and be able to observe, the proceedings. This access should only be denied when strictly necessary in the opinion of the Chamber concerned and where publicity would prejudice the
interests of justice;

- The procedures to be followed by the Extraordinary Chambers should be those laid down in Cambodian law. At the same time, where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, the Extraordinary Chambers should be able to look to relevant
international rules for guidance;

- It should be for the Chambers to decide whether the amnesty that was granted to one person on 14 September 1996 would serve to bar his prosecution or conviction for crimes within their jurisdiction;

(e) Insofar as concerns the jurisdiction of the Extraordinary Chambers, the agreement should provide the following:

-The Chambers should have subject-matter jurisdiction in respect of the crimes set out in chapter II of Cambodia's national Law, as promulgated on 10 August 2001;

- The Chambers should have personal jurisdiction in respect of senior leaders of Democratic Kampuchea and those who were most responsible for the crimes over which the Chambers have subject-matter jurisdiction;

(f) The agreement should contain arrangements regarding the financing of, and assistance to, the Extraordinary Chambers. In particular, it should provide the following:

- Responsibility for the payment of the salaries and emoluments of international personnel should lie with the United Nations;

- Responsibility for the payment of the salaries and emoluments of Cambodian personnel should remain with the Government of Cambodia;

- Responsibility for the operational costs of the Extraordinary Chambers should lie with the United Nations.

17. During the exploratory meetings in New York, the Cambodian team stated that, with one exception (noted below), it firmly rejected my proposals, set out in points (b) and (c) of the previous paragraph, regarding the structure and organization of the Extraordinary Chambers. The Cambodian delegation noted that those proposals would involve changes to the draft agreement that had been under discussion during the previous negotiations. It believed that the United Nations and the Government had reached agreement on those matters in the course of those negotiations. It also believed that the General Assembly resolution required that agreements reached on any points during the course of the previous negotiations should be respected during the resumed negotiations. The Cambodian delegation further stated that the proposals in question were contradictory to Cambodia's Law, as promulgated on 10 August 2001, and that the Government was not prepared to consider any proposals that would require it to make changes to that Law. The only exception was that envisaged in paragraph 4 (b) of the General Assembly resolution, namely, to reduce the number of instances in the Extraordinary Chambers from three to two. The Cambodian delegation added that, in its view, no changes needed to be made to the structure and organization of the Extraordinary Chambers, as conceived in its Law of 10 August 2001, in order to ensure that proceedings before them were credible. That could be done by ensuring compliance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the International Covenant on Civil and Political Rights.

B. Phnom Penh: March 2003

18. On 13 February 2003, the Permanent Representative of Cambodia to the United Nations delivered to me a letter from Prime Minister Hun Sen, bearing the date 31 January 2003. In the letter. Prime Minister Hun Sen invited me to send a team to Phnom Penh as soon as possible. I wrote back to him the following day, accepting the invitation and informing him of the dates on which my team would be available to travel to Phnom Penh. On 18 February 2003, Prime Minister Hun Sen wrote back to inform me that his Government would be pleased to receive my team on the later of the dates that I had mentioned in my letter.

19. Accordingly, a small United Nations team, led by the Legal Counsel, Hans Corell, visited Phnom Penh from 13 to 17 March 2003. Mr. Corell was accompanied by Lamin Sise, Director for Legal Affairs, Human Rights and Special Assignments, Executive Office of the Secretary-General; Sharon Van Buerle, Special Assistant to the Controller, Office of the Controller, Office of Programme Planning, Budgets and Accounts; David Hutchinson, Legal Officer, Office of the Legal Counsel, Office of Legal Affairs; Ellen Alradi, Political Affairs Officer, Asia and Pacific Division, Department of Political Affairs; and Goro Onojima, Human Rights Officer, New York Office, Office of the United Nations High Commissioner for Human Rights. During its five-day visit, the team conducted detailed negotiations on the outstanding issues that had been identified as a result of the exploratory meetings in New York. The team also assessed the adequacy of possible premises for the Extraordinary Chambers and their associated organs and held substantive discussions with senior officials of the Government of Cambodia on the requirements for the Extraordinary Chambers in terms of funds, equipment, services and personnel.

20. It became apparent to me, during my team's visit to Phnom Penh, that the Government of Cambodia was not prepared to contemplate proposals that would require it to make any changes to those provisions of its national Law that specified how the Extraordinary Chambers were to be structured and organized (with the exception of reducing the number of instances from three to two).

21. This was all the more apparent inasmuch as certain Member States that were closely following the resumed negotiations had made it clear to me that they expected me not to seek any changes to the structure and organization of the Extraordinary Chambers that had been contemplated during the earlier negotiations. The Government of Cambodia was obviously aware that this position had been communicated to me and acted accordingly.

22. Nevertheless, I resolved to make a final effort to strengthen the role of the international element at the stages of investigation and prosecution and, at the same time, to simplify those stages of the process by doing away with the Pre-Trial Chamber. I accordingly instructed my team to propose that, in case of any disagreement between the Cambodian co-investigating judge and the international co-investigating judge regarding the conduct of judicial investigations, the views of the international co-investigating judge should be decisive. I made an analogous proposal with respect to the co-prosecutors. However, the reaction of the Cambodian delegation to these proposals was also negative. My team accordingly concluded that it would not be possible to elaborate a text acceptable to the Cambodian delegation that would include provisions along the lines envisaged.

23. It was clear to me, then, that the only agreement that it would be possible to negotiate with the Government was one that accepted the structure and organization of the Extraordinary Chambers foreseen in Cambodia's Law of 10 August 2001. Consequently, my team continued to negotiate with the Government on the basis that the provisions of the draft agreement dealing with the structure, organization and operation of the Chambers would mirror the relevant provisions of Cambodia's Law, with the exception that the number of instances in the Extraordinary Chambers would be reduced from three to two. On this basis - but only on this basis - it has proved possible for me to elaborate with the Government of Cambodia a text of a draft agreement. The text of that draft agreement is contained in the annex to the present report.

24. That text contains a number of positive elements. In particular, it contains several significant improvements over the text that had been under discussion during the previous negotiations.

25. The first concerns the role of the draft agreement itself. As it is now formulated, that text, if it were to enter into force, would constitute an international agreement between the United Nations and Cambodia, which would fall to be implemented in accordance with the requirements of the law of treaties. Central among these are the principles embodied in articles 26 and 27 of the Vienna Convention on the Law of Treaties: namely, that a treaty must be performed by the parties in good faith (pacta sunt servanda) and that the parties may not invoke provisions of their internal law as justification for their failure to perform a treaty. The draft agreement further specifies that it would apply as law within Cambodia. It follows from these provisions that Cambodia would be obligated to ensure that its national law conformed with the agreement and, to the extent that it did not do so, to amend its law in order to make it do so. Thereafter, Cambodia could not amend its national law except in a manner that was consistent with the provisions of the draft agreement. The draft agreement would therefore play the essential role of affording an assurance, binding in international law, that the Extraordinary Chambers would be structured and organized in the manner that it stipulates and that they would function and exercise their powers in accordance with the procedures that it lays down.

26. Secondly, the cumbersome, three-tier structure that had been envisaged for the Extraordinary Chambers during the earlier negotiations has been changed to a simpler, two-instance one.

27. Thirdly, the draft agreement contains a number of provisions regarding the procedures to be followed by the Extraordinary Chambers and the manner in which they would be obliged to exercise their powers that would go much further towards ensuring international standards of justice, fairness and due process than did the provisions of the agreement that had been under discussion during the earlier negotiations. Reference is made in this regard to section IV, D and E, of the present report.

28. That having been said, I cannot but recall the reports of my Special Representative for human rights in Cambodia, who has consistently found there to be little respect on the part of Cambodian courts for the most elementary features of the right to a fair trial.(26) I consequently remain concerned that these important provisions of the draft agreement might not be fully respected by the Extraordinary Chambers and that established international standards of justice, fairness and due process might therefore not be ensured.

29. Furthermore, in view of the clear Finding of the General Assembly in its resolution 57/225 that there are continued problems related to the rule of law and the functioning of the judiciary in Cambodia resulting from interference by the executive with the independence of the judiciary, I would very much have preferred that the draft agreement provide for both of the Extraordinary Chambers to be composed of a majority of international judges. I was, and continue to be, of the view that international judges, who would not be dependent in any way upon the executive authorities of Cambodia, would be much less likely to be influenced by, or
yield to, any interference from that quarter. In addition, it would then not have been necessary to apply the problematic "supermajority" formula, which was introduced into the negotiations by Member States, and not by the United Nations delegation. At the same time, the essential nature of the Extraordinary Chambers as a national Cambodian court would have remained unaffected. Many examples exist of national courts which are composed predominantly, or even solely, of foreign judges. They do not thereby cease to be national courts of the State concerned.

30. Doubts might therefore still remain as to whether the provisions of the draft agreement relating to the structure and organization of the Extraordinary Chambers would fully ensure their credibility, given the precarious state of the judiciary in Cambodia. It would, however, be my hope that, were an agreement to be concluded between the United Nations and the Government of Cambodia on the basis of the draft, the Government of Cambodia would fully carry out the obligations that it would thereby assume. It is worthwhile noting in this regard that, under the terms of the draft agreement, any deviation by the Government from its obligations could lead to the United Nations withdrawing its cooperation and assistance from the process. Reference is made in this regard to section IV, F, below.

IV. The draft agreement

A. Nature of the Extraordinary Chambers

31. The legal nature of the Extraordinary Chambers, like that of any legal entity, would be determined by the instrument that created them. In accordance with the draft agreement, the Extraordinary Chambers would be created by the national law of Cambodia. The Extraordinary Chambers would therefore be national Cambodian courts, established within the court structure of that country.

B. Structure and organization of the Extraordinary Chambers

32. The draft agreement envisages a total of five organs. The first are the Extraordinary Chambers themselves.

The Trial Chamber and the Supreme Court Chamber

33. The Extraordinary Chambers would consist of a Trial Chamber and a Supreme Court Chamber. The Trial Chamber would be composed of three Cambodian judges and two international judges. The Supreme Court Chamber would be composed of four Cambodian judges and three international judges. The five international judges would be appointed by Cambodia's Supreme Council of the Magistracy from a list of not less than seven nominees provided by the Secretary-General.

34. Decisions in each Chamber would require the affirmative vote of a majority of the judges of that Chamber, plus one - a so-called "supermajority". A decision therefore could not be taken without the support of at least one international judge.

35. The Supreme Court Chamber would function both as appellate chamber and Final instance. The judges of that Chamber would serve only once it was seized with a particular matter.

The co-prosecutors

36. There would be two co-prosecutors: one Cambodian prosecutor and one international prosecutor. The international co-prosecutor would be appointed by Cambodia's Supreme Council of the Magistracy from a list of two nominees that the Secretary-General would provide. The other nominee would be appointed as a reserve international co-prosecutor.

37. The two co-prosecutors would initiate preparatory investigations, formulate charges, cause the opening of judicial inquiries and, where those inquiries led to an accused being committed for trial before the Extraordinary Chambers, conduct the ensuing prosecutions and appeals.

The co-investigating judges

38. There would be two co-investigating judges: one Cambodian investigating judge and one international investigating judge. The international co-investigating judge would be appointed by Cambodia's Supreme Council of the Magistracy from a list of two nominees provided by the Secretary-General, the other being appointed as a reserve international co-investigating judge.

39. The two co-investigating judges would conduct judicial investigations on the basis of introductory charges submitted by the co-prosecutors. Where those investigations disclosed sufficient evidence, they would send the accused for trial before the Extraordinary Chambers.

The Pre-Trial Chamber

40. The two co-prosecutors would have to cooperate with a view to arriving at a common approach to prosecutions. In the event that they disagreed about whether or not to proceed with a prosecution, the prosecution would go ahead unless one of them decided to invoke machinery for the settlement of differences between them. That machinery would be the Pre-Trial Chamber.

41. The Pre-Trial Chamber would consist of three judges appointed by Cambodia's Supreme Council of the Magistracy and two judges appointed by the Supreme Council upon nomination by the Secretary-General. Decisions of the Pre-Trial Chamber would be taken by an affirmative vote of four judges. If it proved impossible to obtain such a "supermajority", the prosecution would proceed.

42. The draft agreement contains analogous provisions regarding the settlement of differences between the two co-investigating judges regarding the conduct of judicial investigations.

43. The Pre-Trial Chamber would be convened, and its judges serve, only as and when needed.
The Office of Administration

44. The Extraordinary Chambers, the Pre-Trial Chamber, the Prosecutors' Office and the co-investigating judges would be serviced by an Office of Administration. That Office would have a Cambodian Director and an international Deputy Director. The Deputy Director would be appointed by the Secretary-General. The Deputy Director would be specifically responsible for the administration of the international components of the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges and the Prosecutors' Office. He or she would also be responsible for the recruitment of all international staff serving with those institutions or in the Office of Administration. While the Cambodian Director would be responsible for the overall management of the Office, his or her competence would not extend to matters that are subject to United Nations rules and procedures. The Director and the Deputy Director would cooperate to ensure that the Office functioned in an effective and efficient manner.

C. Jurisdiction of the Extraordinary Chambers

Subject-matter jurisdiction

45. The Extraordinary Chambers would have jurisdiction over the crimes defined in chapter II of Cambodia's national Law of 10 August 2001. Those crimes include the following crimes under international law: genocide; crimes against humanity; and grave breaches of the Geneva Conventions of 1949. They also include the following crimes under Cambodian law: homicide, torture and religious persecution. In addition, they include the following violations of international conventions recognized by Cambodia: the destruction of cultural property during armed conflict in circumstances prohibited by the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; and crimes against internationally protected persons in circumstances prohibited by the Vienna Convention of 1961 on Diplomatic Relations.

Temporal jurisdiction

46. The jurisdiction of the Extraordinary Chambers would be limited to crimes committed during the period from 17 April 1975 to 6 January 1979.

Personal jurisdiction

47. The jurisdiction of the Extraordinary Chambers would be limited to crimes committed by senior leaders of Democratic Kampuchea and those who were most responsible for the crimes falling within the subject-matter and temporal jurisdiction of the Chambers.

D. Procedural law

48. The co-prosecutors, the co-investigating judges and the Extraordinary Chambers would follow the normal procedures laid down by Cambodian law. However, where Cambodian law did not deal with a question, or where there was uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there was a question regarding the consistency of such a rule with international standards, it would be possible to seek guidance in relevant procedural rules that have been established at the international level.

E. International standards of justice, fairness and due process

49. The draft agreement stipulates that the Extraordinary Chambers would have to exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the International Covenant on Civil and Political Rights. It is further stipulated that the rights of the accused which are enshrined in those articles of the Covenant would have to be respected at all stages of the criminal process. Specific mention is made in this regard of the right of accused persons to engage counsel of their own choosing, as guaranteed by article 14, paragraph 3 (d), of the Covenant. It is further envisaged that accused might engage, or be assigned, counsel who are not of Cambodian nationality. Such counsel, and likewise their Cambodian counterparts, would, in defending their clients, have to conduct themselves in accordance with the terms of the draft agreement, Cambodia's law on the bar and recognized standards and ethics of the legal profession.

50. The draft agreement also makes special mention of the right of the accused to a fair and public hearing, as guaranteed by article 14, paragraph I, of the Covenant. In the interests of securing a fair and public hearing and ensuring the credibility of proceedings, it would be expected that representatives of States, the Secretary-General and international and national non-governmental organizations, as well as the news media, would at all times have access to, and be able to observe, the proceedings before the Extraordinary Chambers. Access might be denied only when strictly necessary in the opinion of the court and when publicity would prejudice the interests of justice.

F. Obligation of the United Nations to assist

51. The purpose of any agreement between the United Nations and Cambodia would be to set out an undertaking by the United Nations to help Cambodia establish the Extraordinary Chambers and support their sustained operation. It would also be a fundamental objective of any such agreement to spell out the forms of assistance that the United Nations would provide to that end. If the United Nations were to agree to provide such assistance, it is only to be expected that the instrument by which it assumed that obligation would specify the precise nature of the institution that it was undertaking to help set up and run. The draft agreement accordingly spells out how the Extraordinary Chambers would have to be structured and organized and how they would have to function, in order to receive assistance from the United Nations. As a corollary, if the Government were later to change the structure and organization of the Extraordinary Chambers so that they failed to conform to the agreement, then the obligation of the United Nations to provide assistance under the agreement would cease to apply. The same would occur if the Government were to cause the Chambers to function in a manner that did not conform to the agreement. The draft agreement accordingly reserves the right of the United Nations to cease to provide assistance in such an eventuality.

V. Next steps

52. The current status of the draft agreement is as follows. The Legal Counsel, as my representative, and Senior Minister Sok An, as the representative of the Government of Cambodia, have initialled the draft agreement. It should be emphasized that they have not signed it. Rather, by initialling the draft agreement, they have indicated that it is the text that they have elaborated in order to provide their respective authorities with a single and certain text for their review and consideration. It is now for the General Assembly, on the one hand, and the relevant constitutional authorities of Cambodia, on the other, to decide whether or not to conclude an agreement and, if so, whether to do so on the basis of the text that has been initialled or whether that text should be modified in any regard before it is signed. The fact that the text has been initialled therefore does not exclude the possibility that the parties may decide that further negotiations are needed on certain issues before an agreement is finally concluded.

53. Article 30 of the draft agreement provides that, to be binding on the parties, the agreement must be approved by the General Assembly and ratified by the relevant constitutional authorities of Cambodia. Should the General Assembly be of the opinion that it is desirable that an agreement be concluded between the United Nations and the Government of Cambodia on the basis of the draft that is annexed to the present report, it would have to adopt a decision approving the annexed draft. In the event that the General Assembly approved that draft, I would then proceed to sign the agreement for the United Nations.

54. Article 32 of the draft agreement provides that, following its approval by the General Assembly and its ratification by the relevant constitutional authorities of Cambodia, the draft agreement would enter into force once both parties had notified each other in writing that the legal requirements for entry into force had been complied with. When I would provide such notification would depend upon the decision of the General Assembly on the financial mechanism which should be used to finance the international assistance that the United Nations would provide under the draft agreement. This question is addressed in section VI, B, below.

VI. Practical implementation

55. The draft agreement, if accepted, would establish mutual obligations of the United Nations and the Government of Cambodia with regard to appointments of the judges of the Extraordinary Chambers, the co-prosecutors, the co-investigating judges, the judges of the Pro-Trial Chamber and the Director, Deputy Director and staff of the Office of Administration. It would also set out, in articles 14, 15, 16 and 17, the parties' obligations regarding the provision of premises, the defrayment of the salaries and emoluments of officials and personnel and the defrayment of the operating expenses of the Extraordinary Chambers and their associated institutions.

A. Estimated requirements

56. Notwithstanding that not all parameters are currently available, it is estimated that an amount in excess of US$ 19 million would be required for the establishment and operation of the Extraordinary Chambers, the Prosecutors' Office, the co-investigating judges, the Pro-Trial Chamber and the Office of Administration over the course of three years - three years being the period during which it is assumed that all trials and appeals would be completed once the Prosecutors' Office had commenced operations.

Personnel

57. Under the draft agreement, the United Nations would be responsible for the salaries and emoluments of the international judges, including the international co-investigating judge, the international co-prosecutor, the Deputy Director of the Office of Administration and the international personnel required by the Chambers, the co-investigating judges, the Prosecutors' Office and the Office of Administration.

58. The Secretary-General would not appoint the international judges, the international co-prosecutor and the international co-investigating judge. Cambodia's Supreme Council for the Magistracy would make appointments from a list of nominees submitted by the Secretary-General. Accordingly, under normal circumstances it would be difficult for these officials to be considered officials of the United Nations. However, as the United Nations would be responsible for the payment of their salaries and emoluments, it would be highly desirable that they possess the status of officials of the United Nations for the purposes of their terms and conditions of service.

59. Consequently, should the General Assembly decide to approve the draft agreement, it is recommended that a specific decision be taken to deem these appointees to be officials of the United Nations for the purposes of their terms and conditions of service.

60. The establishment and operation of the Extraordinary Chambers would involve a phased-in approach based on the evolution of the legal process - that is, influenced by progression through the investigation, trial and appeal stages. For present purposes, it has been assumed that all trials and appeals would be completed within a period of three years after the co-prosecutors had commenced their operations. In this connection, should the draft agreement be approved, efforts would be made to expedite the establishment of the Office of the Prosecution and the Office of Administration. Preliminary estimates indicate that for the three-year period, total personnel costs would amount to $18.2 million (gross).

61. In the first year of operation, it is estimated that resources amounting to $4.2 million (gross) would provide for 80 posts relating to the phased establishment of the Extraordinary Chambers and the co-investigating judges and the full establishment of the Office of the Prosecution and the Office of Administration. Those offices would continue at full capacity throughout the three years of operation.
62. The requirements are expected to peak in the second year of operation when the Extraordinary Chambers and the co-investigating judges would be fully operational. The Appeals Chamber would, however, only be operational for less than the full year. In this connection, the estimated resources would amount to $7.8 million (gross) and provide for a complement of 91 posts.

63. By the third year, it is expected that the Trial Chamber and the co-investigating judges would be winding down or would have completed their work. The Appeals Chamber, on the other hand, would operate throughout the year. Accordingly, the estimated resource requirements for the third year would decrease to the level of $6.2 million (gross) and provide for a complement of 74 posts.

Premises

64. Under article 14 of the draft agreement, it would be the responsibility of the Government of Cambodia to provide at its expense the premises for the Extraordinary Chambers, the Prosecutors' Office, the co-investigating judges, the Pro-Trial Chamber and the Office of Administration. During its visit to Phnom Penh, the United Nations team visited the three premises which the Government had suggested would be suitable for these purposes. They consisted of the Chaktomuk Theatre building (envisaged by the Government as the possible site for the courtroom), a municipal building and the Ministry of Justice building. The latter two premises would require some measure of refurbishment to meet requirements. In accordance with article 17 (f) of the draft agreement, the responsibility for, and the costs of, internal partitioning and minor improvements for purposes of creating the relevant office accommodation would be borne by the United Nations.

65. At the conclusion of the visit to Phnom Penh, there was no definitive position as to the premises to be provided and the Government of Cambodia continues to weigh the options, including the possibility of constructing new premises. Accordingly, no provision has been included in these estimates for any ensuing costs for the United Nations relating to internal partitioning and minor improvements of the premises that might eventually be identified.

Furniture and equipment

66. As is the case with the phased deployment of personnel, the acquisition of furniture and equipment for the establishment of the Extraordinary Chambers and their associated institutions would follow the same pattern. Resource requirements over the three years are estimated at $372,300. This amount would provide for the acquisition of: office furniture and storage facilities; office automation and data-processing equipment, such as LAN servers, desktop computers, photocopiers, scanners and facsimile machines; communications equipment (cell phones and telephones); and vehicles. It is expected that the bulk of the furniture and equipment would be acquired during the first year of operation ($350,000), with the balance during the second year ($22,300). It is not expected that additional equipment would be required during the third year of operation.

Travel

67. Provision has been made in the current preliminary estimates for the travel between New York and Phnom Penh at least once a year of the international judges of the Pro-Trial Chamber (who, it is envisaged, would be needed for 10 days each year) and the Deputy Director of Administration (consultations at Headquarters and appearance before legislative bodies). This would amount to approximately $31,500 per year, or a total of $94,500 for the three-year period.

68. At this time no provision has been made for domestic travel or, as indicated under article 17 (d) of the draft agreement, witnesses' travel from within Cambodia and from abroad.

General operating expenses

69. A preliminary provision for the three years of operation of the Extraordinary Chambers and their associated institutions amounting to approximately $324,900 has been included in these preliminary estimates for miscellaneous operating needs, including insurance, oil and fuel, maintenance of vehicles, etc.

70. However, the costs of utilities and services necessary for the operation of the Extraordinary Chambers and the related institutions, which would be the subject of a separate agreement between the United Nations and Cambodia, have not been included in the present estimates.

71. Provisions for the remuneration of defence counsel who might be assigned to indigent accused and the costs of prosecutorial and investigative activities, supplies and materials, printing, miscellaneous contractual services and general temporary assistance also have not been included.

B. Financial mechanism

72. In paragraph 9 of resolution 57/228, the General Assembly requested me to include in the present report recommendations on "the amount of voluntary contributions of funds, equipment and services to the Extraordinary Chambers, inter alia, through the offer of expert personnel, that may be needed from States, intergovernmental organizations and non-governmental organizations".

73. On 22 November 2002, at the time the General Assembly was considering the draft of its future resolution 57/228, I addressed a letter to the President of the Assembly (A/57/626) and indicated that it was my intention to include information on the financing needs of the Extraordinary Chambers in the report that I would submit to the General Assembly in accordance with operative paragraph 7 of the draft resolution. I added that the report would also include a proposal on the method of funding, including through assessed contributions.

74. It is my view that an operation of this nature, mandated by Member States, would constitute an expense of the Organization under Article 17 of the Charter of the United Nations and should be financed from assessed contributions. A financial mechanism based on voluntary contributions would not provide the assured and continuous source of funding that would be needed to make it possible to appoint judges, the international co-prosecutor, the international co-investigating judge and the Deputy Director of Administration, to contract the services of administrative and support staff and to purchase the necessary equipment. Nor would it provide a secure basis for the conduct of investigations, prosecutions and trials.

75. The operation of a court should not be left to the vagaries of voluntary contributions. It could well be said that courts, as a matter of constitutional principle, should be financed by taxation or, at the international level, through the analogous mechanism of assessed contributions.

76. Moreover, experience with the Special Court for Sierra Leone has proved that, if the assistance that the United Nations is to provide is to be funded from voluntary contributions, it would probably be more than a year before sufficient contributions were received to make that possible. In this connection, I cannot but recall that it was the expressed wish of the General Assembly in resolution 57/228 that the Extraordinary Chambers be established as early as possible and that they begin to function promptly. Otherwise, the opportunity of bringing those responsible to justice might be lost. In my view, the only way to ensure that this does not happen is financing through assessed contributions. This would also provide a viable and sustainable Financial mechanism, affording secure and continuous funding. It would still be open to States, intergovernmental organizations and non-governmental organizations to make voluntary contributions for ad hoc purposes.

77. If it is nevertheless the intention of the General Assembly that the assistance which the United Nations would provide to the Extraordinary Chambers under any agreement with the Government of Cambodia should be financed from voluntary contributions, the process of setting up the Extraordinary Chambers - of appointing and hiring personnel, procuring equipment and so on - could only be initiated once sufficient money was in place to fund the necessary personnel and the operations of the Chambers for a sustained period of time.

78. I am aware that a number of States have informally made statements to the effect that I would be able to depend on receiving the necessary voluntary contributions quickly and in full, to fund the United Nations contribution to the costs of the Extraordinary Chambers. However, I received similar informal assurances of support in the case of the Special Court for Sierra Leone.

VII. Conclusion

79. The present report describes the steps that I took to resume negotiations with the Government of Cambodia for an agreement on the establishment of Extraordinary Chambers within the existing court structure of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea. It also describes the draft agreement which was finalized as a result of those negotiations. Further, it explains why, while that text is a considerable improvement over the one which had been under discussion during the previous negotiations, doubts might still remain as to whether it would ensure the credibility of the Extraordinary Chambers, given the precarious state of the judiciary in Cambodia.

80. Should the General Assembly be of the view that the United Nations should proceed to conclude an agreement with the Government of Cambodia based upon that draft, the present report describes the steps that it would have to take for that purpose. Needless to say, I would spare no effort to execute any such agreement.

81. Were the agreement to enter into force, it would be essential, in my view, that the United Nations assist in ensuring that the Extraordinary Chambers function in a manner that conforms to the agreement and complies with the international standards mentioned above. I would therefore propose that, in that eventuality, the Organization should remain engaged in the process of overseeing the implementation of the draft agreement.

82. The present report goes on to describe the requirements of the Extraordinary Chambers and associated bodies in terms of funds, personnel and services. It also draws attention to the need for a viable financial mechanism to sustain the assistance that the United Nations would provide to the Extraordinary Chambers for the duration of their operation. It concludes that assessed contributions represent the only such mechanism that would be viable and sustainable and that would ensure the early establishment of the Extraordinary Chambers and the prompt commencement of their operations.

APPENDIX THREE: 17 March 2003 Draft Agreement

DRAFT AGREEMENT 17 March 2003

WHEREAS the General Assembly of the United Nations, in its resolution 57/228 of 18 December 2002, recalled that the serious violations of Cambodian and international humanitarian law during the period of Democratic Kampuchea from 1975 to 1979 continue to be matters of vitally important concern to the international community as a whole;

WHEREAS in the same resolution the General Assembly recognized the legitimate concern of the Government and the people of Cambodia in the pursuit of justice and national reconciliation, stability, peace and security;

WHEREAS the Cambodian authorities have requested assistance from the United Nations in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979;

WHEREAS prior to the negotiation of the present Agreement substantial progress had been made by the Secretary-General of the United Nations (hereinafter, "the Secretary-General") and the Royal Government of Cambodia towards the establishment, with international assistance, of Extraordinary Chambers within the existing court structure of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea;

WHEREAS by its resolution 57/228, the General Assembly welcomed the promulgation of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea and requested the Secretary-General to resume negotiations, without delay, to conclude an agreement with the Government, based on previous negotiations on the establishment of the Extraordinary Chambers consistent with the provisions of the said resolution, so that the Extraordinary Chambers may begin to function promptly;

WHEREAS the Secretary-General and the Royal Government of Cambodia have held negotiations on the establishment of the Extraordinary Chambers;

NOW THEREFORE the United Nations and the Royal Government of Cambodia have agreed as follows:

The purpose of the present Agreement is to regulate the cooperation between the United Nations and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979. The Agreement provides, inter alia, the legal basis and the principles and modalities for such cooperation.

1. The present Agreement recognizes that the Extraordinary Chambers have subject matter jurisdiction consistent with that set forth in "the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea" (hereinafter: "the Law on the Establishment of the Extraordinary Chambers"), as adopted and amended by the Cambodian Legislature under the Constitution of Cambodia. The present Agreement further recognizes that the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement.

2. The present Agreement shall be implemented in Cambodia through the Law on the Establishment of the Extraordinary Chambers as adopted and amended. The Vienna Convention on the Law of Treaties, and in particular its Articles 26 and 27, applies to the Agreement.

3. In case amendments to the Law on the Establishment of the Extraordinary Chambers are deemed necessary, such amendments shall always be preceded by consultations between the parties.

1. Cambodian judges, on the one hand, and judges appointed by the Supreme Council of the Magistracy upon nomination by the Secretary-General of the United Nations (hereinafter: "international judges"), on the other hand, shall serve in each of the two Extraordinary Chambers.

2. The composition of the Chambers shall be as follows:

a. The Trial Chamber: three Cambodian judges and two international judges;

b. The Supreme Court Chamber, which shall serve as both appellate chamber and final instance: four Cambodian judges and three international judges.

3. The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to judicial offices. They shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source.

4. In the overall composition of the Chambers due account should be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.

5. The Secretary-General of the United Nations undertakes to forward a list of not less than seven nominees for international judges from which the Supreme Council of the Magistracy shall appoint five to serve as judges in the two Chambers. Appointment of international judges by the Supreme Council of the Magistracy shall be made only from the list submitted by the Secretary-General.

6. In the event of a vacancy of an international judge, the Supreme Council of the Magistracy shall appoint another international judge from the same list.

7. The judges shall be appointed for the duration of the proceedings.

8. In addition to the international judges sitting in the Chambers and present at every stage of the proceedings, the President of a Chamber may, on a case-by-case basis, designate from the list of nominees submitted by the Secretary-General, one or more alternate judges to be present at each stage of the proceedings, and to replace an international judge if that judge is unable to continue sitting.

1. The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply:

a. A decision by the Trial Chamber shall require the affirmative vote of at least four judges;

b. A decision by the Supreme Court Chamber shall require the affirmative vote of at least five judges.

2. When there is no unanimity, the decision of the Chamber shall contain the views of the majority and the minority.

1. There shall be one Cambodian and one international investigating judge serving as co-investigating judges. They shall be responsible for the conduct of investigations.

2. The co-investigating judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to such a judicial office.

3. The co-investigating judges shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source. It is understood, however, that the scope of the investigation is limited to senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

4. The co-investigating judges shall cooperate with a view to arriving at a common approach to the investigation. In case the co-investigating judges are unable to agree whether to proceed with an investigation, the investigation shall proceed unless the judges or one of them requests within thirty days that the difference shall be settled in accordance with Article 7.

5. In addition to the list of nominees provided for in Article 3, paragraph 5, the Secretary-General shall submit a list of two nominees from which the Supreme Council of the Magistracy shall appoint one to serve as an international co-investigating judge, and one as a reserve international co-investigating judge.

6. In case there is a vacancy or a need to fill the post of the international co-investigating judge, the person appointed to fill this post must be the reserve international co-investigating judge.

7. The co-investigating judges shall be appointed for the duration of the proceedings.

1. There shall be one Cambodian prosecutor and one international prosecutor competent to appear in both Chambers, serving as co-prosecutors. They shall be responsible for the conduct of the prosecutions.

2. The co-prosecutors shall be of high moral character, and possess a high level of professional competence and extensive experience in the conduct of investigations and prosecutions of criminal cases.

3. The co-prosecutors shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source. It is understood, however, that the scope of the prosecution is limited to senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

4. The co-prosecutors shall cooperate with a view to arriving at a common approach to the prosecution. In case the prosecutors are unable to agree whether to proceed with a prosecution, the prosecution shall proceed unless the prosecutors or one of them requests within thirty days that the difference shall be settled in accordance with Article 7.

5. The Secretary-General undertakes to forward a list of two nominees from which the Supreme Council of the Magistracy shall select one international co-prosecutor and one reserve international co-prosecutor.

6. In case there is a vacancy or a need to fill the post of the international co-prosecutor, the person appointed to fill this post must be the reserve international co-prosecutor.

7. The co-prosecutors shall be appointed for the duration of the proceedings.

8. Each co-prosecutor shall have one or more deputy prosecutors to assist him or her with prosecutions before the Chambers. Deputy international prosecutors shall be appointed by the international co-prosecutor from a list provided by the Secretary-General.

1. In case the co-investigating judges or the co-prosecutors have made a request in accordance with Article 5, paragraph 4, or Article 6, paragraph 4, as the case may be, they shall submit written statements of facts and the reasons for their different positions to the Director of the Office of Administration.

2. The difference shall be settled forthwith by a Pre-Trial Chamber of five judges, three appointed by the Supreme Council of the Magistracy, with one as President, and two appointed by the Supreme Council of the Magistracy upon nomination by the Secretary-General. Article 3, paragraph 3, shall apply to the judges.

3. Upon receipt of the statements referred to in paragraph 1, the Director of the Office of Administration shall immediately convene the Pre-Trial Chamber and communicate the statements to its members.

4. A decision of the Pre-Trial Chamber, against which there is no appeal, requires the affirmative vote of at least four judges. The decision shall be communicated to the Director of the Office of Administration, who shall publish it and communicate it to the co-investigating judges or the co-prosecutors. They shall immediately proceed in accordance with the decision of the Chamber. If there is no majority, as required for a decision, the investigation or prosecution shall proceed.

1. There shall be an Office of Administration to service the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges and the Prosecutors' Office.

2. There shall be a Cambodian Director of this Office, who shall be appointed by the Royal Government of Cambodia. The Director shall be responsible for the overall management of the Office of Administration, except in matters that are subject to United Nations rules and procedures.

3. There shall be an international Deputy Director of the Office of Administration, who shall be appointed by the Secretary-General. The Deputy Director shall be responsible for the recruitment of all international staff and all administration of the international components of the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges, the Prosecutors' Office and the Office of Administration. The United Nations and the Royal Government of Cambodia agree that, when an international Deputy Director has been appointed by the Secretary-General, the assignment of that person to that position by the Royal Government of Cambodia shall take place forthwith.

4. The Director and the Deputy Director shall cooperate in order to ensure an effective and efficient functioning of the administration.

The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.
The maximum penalty for conviction for crimes falling within the jurisdiction of the Extraordinary Chambers shall be life imprisonment.
1. The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present Agreement.

2. This provision is based upon a declaration by the Royal Government of Cambodia that until now, with regard to matters covered in the law, there has been only one case, dated 14 September 1996, when a pardon was granted to only one person with regard to a 1979 conviction on the charge of genocide. The United Nations and the Royal Government of Cambodia agree that the scope of this pardon is a matter to be decided by the Extraordinary Chambers.

1. The procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.

2. The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. In the interest of securing a fair and public hearing and credibility of the procedure, it is understood that representatives of Member States of the United Nations, of the Secretary-General, of the media and of national and international non-governmental organizations will at all times have access to the proceedings before the Extraordinary Chambers. Any exclusion from such proceedings in accordance with the provisions of Article 14 of the Covenant shall only be to the extent strictly necessary in the opinion of the Chamber concerned and where publicity would prejudice the interests of justice.

1. The rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected throughout the trial process. Such rights shall, in particular, include the right: to a fair and public hearing; to be presumed innocent until proved guilty; to engage a counsel of his or her choice; to have adequate time and facilities for the preparation of his or her defence; to have counsel provided if he or she does not have sufficient means to pay for it; and to examine or have examined the witnesses against him or her.

2. The United Nations and the Royal Government of Cambodia agree that the provisions on the right to defence counsel in the Law on the Establishment of Extraordinary Chambers mean that the accused has the right to engage counsel of his or her own choosing as guaranteed by the International Covenant on Civil and Political Rights.

The Royal Government of Cambodia shall provide at its expense the premises for the co-investigating judges, the Prosecutors' Office, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration. It shall also provide for such utilities, facilities and other services necessary for their operation that may be mutually agreed upon by separate agreement between the United Nations and the Government.
Salaries and emoluments of Cambodian judges and other Cambodian personnel shall be defrayed by the Royal Government of Cambodia.
Salaries and emoluments of international judges, the international co-investigating judge, the international co-prosecutor and other personnel recruited by the United Nations shall be defrayed by the United Nations.
The United Nations shall be responsible for the following:

a. remuneration of the international judges, the international co-investigating judge, the international co-prosecutor, the Deputy Director of the Office of Administration and other international personnel;

b. costs for utilities and services as agreed separately between the United Nations and the Royal Government of Cambodia;

c. remuneration of defence counsel;

d. witnesses' travel from within Cambodia and from abroad;

e. safety and security arrangements as agreed separately between the United Nations and the Government;

f. such other limited assistance as may be necessary to ensure the smooth functioning of the investigation, the prosecution and the Extraordinary Chambers.

The archives of the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration, and in general all documents and materials made available, belonging to or used by them, wherever located in Cambodia and by whomsoever held, shall be inviolable for the duration of the proceedings.
1. The international judges, the international co-investigating judge, the international co-prosecutor and the Deputy Director of the Office of Administration, together with their families forming part of their household, shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic agents in accordance with the 1961 Vienna Convention on Diplomatic Relations. They shall, in particular, enjoy:

a. personal inviolability, including immunity from arrest or detention;

b. immunity from criminal, civil and administrative jurisdiction in conformity with the Vienna Convention;

c. inviolability for all papers and documents;

d. exemption from immigration restrictions and alien registration;

e. the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents.

2. The international judges, the international co-investigating judge, the international co-prosecutor and the Deputy Director of the Office of Administration shall enjoy exemption from taxation in Cambodia on their salaries, emoluments and allowances.

1. Cambodian judges, the Cambodian co-investigating judge, the Cambodian co-prosecutor and other Cambodian personnel shall be accorded immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity under the present Agreement. Such immunity shall continue to be accorded after termination of employment with the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration.

2. International personnel shall be accorded:

a. immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity under the present Agreement. Such immunity shall continue to be accorded after termination of employment with the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration;

b. immunity from taxation on salaries, allowances and emoluments paid to them by the United Nations;

c. immunity from immigration restrictions;

d. the right to import free of duties and taxes, except for payment for services, their furniture and effects at the time of first taking up their official duties in Cambodia.

3. The United Nations and the Royal Government of Cambodia agree that the immunity granted by the Law on the Establishment of the Extraordinary Chambers in respect of words spoken or written and all acts performed by them in their official capacity under the present Agreement will apply also after the persons have left the service of the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration.

1. The counsel of a suspect or an accused who has been admitted as such by the Extraordinary Chambers shall not be subjected by the Royal Government of Cambodia to any measure which may affect the free and independent exercise of his or her functions under the present Agreement.

2. In particular, the counsel shall be accorded:

a. immunity from personal arrest or detention and from seizure of personal baggage;

b. inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;

c. immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed by them in their official capacity as counsel. Such immunity shall continue to be accorded to them after termination of their functions as a counsel of a suspect or accused.

3. Any counsel, whether of Cambodian or non-Cambodian nationality, engaged by or assigned to a suspect or an accused shall, in the defence of his or her client, act in accordance with the present Agreement, the Cambodian Law on the Statutes of the Bar and recognized standards and ethics of the legal profession.

Witnesses and experts appearing on a summons or a request of the judges, the co-investigating judges, or the co-prosecutors shall not be prosecuted, detained or subjected to any other restriction on their liberty by the Cambodian authorities. They shall not be subjected by the authorities to any measure which may affect the free and independent exercise of their functions.
The co-investigating judges, the co-prosecutors and the Extraordinary Chambers shall provide for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the identity of a victim or witness.
The Royal Government of Cambodia shall take all effective and adequate actions which may be required to ensure the security, safety and protection of persons referred to in the present Agreement. The United Nations and the Government agree that the Government is responsible for the security of all accused, irrespective of whether they appear voluntarily before the Extraordinary Chambers or whether they are under arrest.
The Royal Government of Cambodia shall comply without undue delay with any request for assistance by the co-investigating judges, the co-prosecutors and the Extraordinary Chambers or an order issued by any of them, including, but not limited to:

a. identification and location of persons;

b. service of documents;

c. arrest or detention of persons;

d. transfer of an indictee to the Extraordinary Chambers.

1. The official language of the Extraordinary Chambers and the Pre-Trial Chamber is Khmer.

2. The official working languages of the Extraordinary Chambers and the Pre-Trial Chamber shall be Khmer, English and French.

3. Translations of public documents and interpretation at public hearings into Russian may be provided by the Royal Government of Cambodia at its discretion and expense on condition that such services do not hinder the proceedings before the Extraordinary Chambers.

1. With a view to achieving efficiency and cost-effectiveness in the operation of the Extraordinary Chambers, a phased-in approach shall be adopted for their establishment in accordance with the chronological order of the legal process.

2. In the first phase of the operation of the Extraordinary Chambers, the judges, the co-investigating judges and the co-prosecutors will be appointed along with investigative and prosecutorial staff, and the process of investigations and prosecutions shall be initiated.

3. The trial process of those already in custody shall proceed simultaneously with the investigation of other persons responsible for crimes falling within the jurisdiction of the Extraordinary Chambers.

4. With the completion of the investigation of persons suspected of having committed the crimes falling within the jurisdiction of the Extraordinary Chambers, arrest warrants shall be issued and submitted to the Royal Government of Cambodia to effectuate the arrest.

5. With the arrest by the Royal Government of Cambodia of indicted persons situated in its territory, the Extraordinary Chambers shall be fully operational, provided that the judges of the Supreme Court Chamber shall serve when seized with a matter. The judges of the Pre-Trial Chamber shall serve only if and when their services are needed.

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.
Any dispute between the Parties concerning the interpretation or application of the present Agreement shall be settled by negotiation, or by any other mutually agreed upon mode of settlement.
To be binding on the parties, the present Agreement must be approved by the General Assembly of the United Nations and ratified by Cambodia. The Royal Government of Cambodia will make its best endeavours to obtain this ratification by the earliest possible date. The present Agreement shall apply as law within the Kingdom of Cambodia following its ratification in accordance with the relevant provisions of the internal law of the Kingdom of Cambodia regarding competence to conclude treaties.
The present Agreement shall enter into force on the day after both parties have notified each other in writing that the legal requirements for entry into force have been complied with.

Done at [place] on [day, month] 2003 in two copies in the English language.

For the United Nations For the Royal Government of Cambodia

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(1) Cambodia: Accountability for gross human rights violations: Open letter to King Sihanouk and the National Assembly (AI Index: ASA 23/10/96, 11 September 1996).

(2) Cambodia Defenders Project public statement dated 13 March 2003. Please also refer to press releases by the Cambodian Human Rights Action Committee, a coalition of 18 local NGOs dated 21 February 2002 and 9 December 2002. These documents appear in full in Appendix One.

(3) Statement made by the UN Legal Counsel at a press briefing at UN Headquarters in New York on 8 February 2002.

(4) International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic Social and Cultural Rights (ICESCR); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention on the Rights of the Child (CRC); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention relating to the Status of Refugees; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

(5) For example, the ICCPR, the Rome Statute of the International Criminal Court; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; the Standard Minimum Rules for the Treatment of Prisoners and Procedures for Effective Implementation of the Rules; Basic Principles on the Role of Lawyers; Guidelines on the Role of Prosecutors; Basic Principles on the Independence of the Judiciary; and Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

(6) Report of the Secretary-General on Khmer Rouge Trials, A/57/769, 31 March 2003, para. 25. See Appendix Two.

(7) Universal Jurisdiction: The duty of states to enact and enforce legislation, section vii.A.1 (AI Index: IOR 53/017/2001, 1 September 2001).

(8) Please refer to Amnesty International report: Kingdom of Cambodia - Urgent need for Judicial Reform (AI Index: ASA 23/004/2002, June 2002).

(9) Please refer to numerous Amnesty International reports, inter alia: Kingdom of Cambodia - Urgent need for Judicial Reform (AI Index: ASA 23/004/2002, June 2002); Cambodia Judiciary on Trial (AI Index: ASA 23/005/2001, June 2001); Kingdom of Cambodia - Law and Order - without the law (AI Index: ASA 23/01/00, March 2000); Kingdom of Cambodia - No solution to impunity: Case of Ta Mok (AI Index: ASA 23/05/99, April 1999).

(10) Report of the Secretary-General on Khmer Rouge Trials, A/57/769, 31 March 2003, para. 28. See Appendix Two.

(11) Report of the Secretary-General on Khmer Rouge Trials, A/57/769, 31 March 2003, para. 29. See Appendix Two.

(12) See interview given by Hans Corell to the Phnom Penh Post, March 28 - April 10, 2003 edition, pp. 8,9.

(13) 17 March 2003 Draft Agreement, Articles 5,6,7. See Appendix Three.

(14) See footnote 9 above.

(15) Otherwise, in the situation where an ICC suspect is arrested, that person would have the benefit of more substantive fair trial rights than a suspect in the ordinary courts.

(16) Report of the Secretary-General on Khmer Rouge Trials, A/57/769, 31 March 2003, para. 30. See Appendix Two.

(17) Report of the Secretary-General on Khmer Rouge Trials, A/57/769, 31 March 2003, para. 52. See Appendix Two.

(18) General Assembly resolution 57/228, seventh preambular paragraph, see also the eighth

preambular paragraph. In the latter paragraph, the General Assembly welcomed, in general

terms, the promulgation on 10 August 2001 of the Law on the Establishment of the

Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed

during the Period of Democratic Kampuchea, which gives expression to this conception. In the same paragraph, the Assembly also specifically noted with appreciation the fact that the Law provided for international assistance for the establishment and operation of the Extraordinary Chambers to be provided through the United Nations.

(19) See paragraphs 2 and 3 of the resolution. See also the eighth preambular paragraph, in which the General Assembly specifically endorsed chapter I ("General provisions") and chapter II ("Competence") of Cambodia's national Law, which specify the personal and subject-matter jurisdiction of the Extraordinary Chambers.

(20) See paragraph 4 (b) of the resolution. See also the tenth preambular paragraph, in which the

General Assembly welcomed the discussions that I had with the Government of Cambodia

following my statement of 8 February 2002. During the course of those discussions. Prime

Minister Hun Sen informed me, in a letter dated 28 June 2002, that he was prepared to simplify the three-tier structure that was envisaged for the Extraordinary Chambers in Cambodia's Law, by reducing the number of instances from three to two.

(21) See paragraph 4 (a) of the resolution; see also paragraph 6.

(22) See paragraph 5 of the resolution. International standards of justice, fairness and due process of law, as set out in article 14 of the International Covenant on Civil and Political Rights, include the right to a fair hearing by an independent and impartial tribunal. Paragraphs 4 (a) and 6 of the resolution arc therefore also to be understood as making this condition one that any agreement would have to respect.

In addition to article 14 of the Covenant, the international standards to which paragraph 5 of the resolution refers are also set out in the Universal Declaration of Human Rights (article 10), the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors, both adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, and the Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

(23) See paragraphs 1, 9 and 10 of the resolution; sec also the fourth preambular paragraph.

(24) See paragraph 1 of the resolution.

(25) General Assembly resolution 57/225, sect. II, para. 2

(26) See, most recently, A/57/230 and E/CN.4/2003/114.

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