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Progress, But Huge Obstacles Loom Over KR Tribunal Judges

Cambodian and international judges in recent days made small steps toward solving a host of problems that are obstructing the work of the UN-assisted Cambodian Tribunal for former Khmer Rouge leaders, but the biggest obstacles remain, sources near the closed meetings told VOA Khmer on Friday.

The judges, who began a 10-day series of negotiations Wednesday in Phnom Penh, are trying to resolve more than 100 contentious points over 'internal' rules and procedures that will determine how a Tribunal will be run.

Two similar rounds of talks, in November and January, ended in deadlock, and observers say this round is critical if a Tribunal is to move forward.

Though the long-awaited Tribunal finally convened its administrative operations in mid-2005, a trial phase is far from imminent. The continued inability of Cambodian and international jurists to agree on fundamental rules is troubling, observers told VOA Khmer in recent days.

The judges are meeting over issues such as a defendant's right to choose a lawyer, the participation of non-Cambodian lawyers, compensation for victims and the procedures for settling conflicts that could arise during a Tribunal. But the largest obstacle has been the rules governing a "pre-trial chamber," the body responsible for issuing indictments against leaders of the deadly regime.

Thun Saray, director of the Cambodian human rights group Adhoc, has been closely monitoring the meetings.

The question of civil compensation—whether victims will receive money for their suffering—"may be solved," Thun Saray said. "But about the foreign lawyers, we are not yet clear."

The judges have agreed in principle not to allow victim compensation, a source close to the negotiations told VOA on condition of anonymity.

Compensation would have been difficult, the source said, because anyone who had a parent die, who had property damaged or who now faces difficulties thanks to the policies of the Khmer Rouge would have a claim.

The judges made less progress on questions over whether non-Cambodian lawyers could participate, the source said.

The Cambodian Bar Association has in the past refused to allow the participation of foreign lawyers.

In meetings this week, judges considered a $2,000 fee that would be paid to the bar for foreign lawyers to "register."

Also under consideration is a provision requiring that any negotiation for payment between a foreign lawyer and client be brokered through the bar. The Bar Association will have the right to disbar and fine lawyers for misconduct, the source said.

Such options have led to concern among foreign judges that the independence and transparency of a Tribunal would be damaged, the source said.

Larger issues remain.

Jurists have been unable to agree on rules governing the pre-trial chamber, though it was agreed upon in 2003 as a necessary branch of the Tribunal when Cambodia and the U.N. signed an agreement after a decade of talks. The UN-assisted Tribunal's official name is Extraordinary Chambers in the Courts of Cambodia. It's made up of 17 Cambodian and 12 international jurists, including judges and prosecutors.

Jurists have not yet agreed on how indictments will be issued, how they can be vetoed by other judges or how they will be investigated.

One source told VOA Khmer Friday that, for example, it's been proposed that if a foreign prosecutor wanted to indict Ieng Sary — a top-tier leader of the Khmer Rouge who was given amnesty following a 1996 defection to the government — and a Cambodian judge disagreed, and no solution was found in the pre-trial chamber, the indictment would fail and Ieng Sary would receive no trial.

The agreement in 2003 between the Cambodian government and the UN to set up the Tribunal included provisions that called for a pre-trial chamber to decide indictments liberally. It stipulated that any indictment put forward by a prosecutor, Cambodian or international, would proceed to the trial stage unless four of the five chamber judges voted against the indictment. The pre-trial chamber is composed of three Cambodian and two international judges.

Continued disagreement about this so-called super majority provision at the pre-trial chamber level is one of the primary sticking points in the November and January talks and clearly remains unsettled, sources told VOA Khmer.

During negotiations, a source close to this week's meeting told VOA, the position of the Cambodian side was degrading the independence of the pre-trial chamber.

Independence during the indictment would be critical for a credible Tribunal.

Adhoc's Thun Saray said the pre-trial chamber was a key issue that should be thoroughly discussed but that has seen changes lately.

"We will continue to monitor this closely, to see how this is solved," he said.

Human rights workers have said the judges must come to an agreement during this round of meetings. If not, the Tribunal will collapse under its own three-year time limit. Failure now to get things going will mean too many delays down the road, and concerned observers say they want to see a draft of the internal rules, agreed upon by all the judges, by April.

ECCC spokesman Reach Sambath said the meetings were yielding progress, but that results would be announced at the end of the talks on March 16.

"There is much progress," he said, " But we'll wait until March 16, when we will say all. Now we cannot say, because they are still meeting."

More than 2 million people died of overwork, starvation or execution during the four-year reign of Democratic Kampuchea, an ultra-Maoist communist group that came to be known as the Khmer Rouge. In the nearly 30 years since the regime fell, no leader has been brought to justice. The movement's leader, Pol Pot, died in 1998, and the military leader Ta Mok "the Butcher" died while in custody last year. Only one former cadre remains in custody: Kaing Khek Iev, the Khmer Rouge torture chief known as Duch.