The UN decision to withdraw from a planned trial of former Khmer Rouge leaders did not come as a surprise to many observers. Analysts are concerned that any trial held in Cambodia without international support may be tainted by politics and not provide real justice.
For the past five-years, the United Nations and the government of Prime Minister Hun Sen have been negotiating how to establish a special court to try former Khmer Rouge leaders. An estimated two million people were killed or died from starvation or forced labor under Khmer Rouge rule from 1975 to 1979.
UN officials say their decision to withdraw from the negotiations was based on the inability of Cambodian law to guarantee the independence, impartiality, and objectivity of a war-crimes tribunal.
Law professor Peter Hammer says that does not surprise him, because the ruling party, the Cambodian People's Party (CPP) controls the judiciary.
"There is no tradition in Cambodia of an independent judiciary," he said. "The judges in Cambodia today are the people who were appointed by the CPP when it was still a single party communist state. And their ideology has not changed. Their traditions have not changed substantially. And they take their orders from the central administration."
Professor Hammer, University of Michigan Cambodian law program director, says the United Nations and the Cambodian government were trying to establish a tribunal that would have included international and Cambodian judges.
"To make it workable the central administration or the CPP would have to give up control," he said. "That was really the point at which the negotiations fell through. They would not give up control, and without them giving up control you do not have independence. And without independence you do not have a legitimate tribunal."
The Cambodian government has urged the United Nations to reconsider its decision. Cambodia's chief negotiator, Sok An, released a statement saying the government has made many concessions and is not going to offer any more compromises.
Cambodia scholar and director of genocide studies at Yale University, Ben Kiernan, says without UN involvement the fairness and legitimacy of a Khmer Rouge trial would be in doubt.
But he says there is no chance the United Nations could conduct its own Khmer Rouge trial. "One of the difficulties for the United Nations is that like Cambodia, it has been under pressure from China not to go ahead with an ad-hoc international tribunal, as it did with Bosnia and Rwanda," he explained. "China, in the Security Council, has threatened to veto that, leaving the United Nations only with the option of working on a mixed international and national tribunal with Cambodia or, as it is now apparently doing, leaving it up to Cambodia."
Professor Kiernan notes that as a signatory to the Genocide Convention, Cambodia is legally responsible for holding a Khmer Rouge trial, with or without international help.
Only two Khmer Rouge leaders are in custody - former military chief of staff Ta Mok and Kaing Kek Ieu, also known as Duch, who ran a prison and torture center. Their detention orders expire in a few months, and Cambodian law would need to be changed for the government to hold them longer without trial.
Khmer Rouge leader Pol Pot died in 1998, but many of his top lieutenants live freely in Cambodia.
According to Professor Kiernan, a purely Cambodian tribunal may have trouble deciding how to handle the possible defendants, including former foreign minister Ieng Sary. "There is the question of the amnesty given to Ieng Sary, who defected to the Cambodian government from the Khmer Rouge and was given a pardon... in 1996 for his opposition to the Cambodian government since the overthrow of the Khmer Rouge regime in 1979. But legally that pardon would not protect him from prosecution for crimes he was involved in before 1979," he said. "And other Khmer Rouge leaders have been surrendering, but have not been given that legal pardon. I think there is a greater chance of a wider net that would incorporate and prosecute the top surviving leaders of the Khmer Rouge, whereas if the United Nations is not involved, the Cambodian government may be more selective in who it prosecutes."
Peter Hammer says the UN withdrawal may cause other governments to pull support for the Cambodian tribunal. Australia, Britain, France, Japan and the United States were among the chief supporters of the plan to put former Khmer Rouge leaders on trial. And Russia, India, and the Association of Southeast Asian Nations have also expressed support for a tribunal.
Some governments have urged the United Nations to resume its talks with Hun Sen's government.
According to Professor Hammer, a purely Cambodian trial is likely to be influenced by and serve Cambodian politics, and not likely to meet international standards of justice. "The sad part is the injustice and the fact that this is one of the most serious and monumental acts of genocide in this millennium and there will be no justice," he said. "And that is a sad commentary. It is sad for the international community, and it is even more sad for the victims of the genocide who still live in Cambodia." Peter Hammer said the people of Cambodia who survived the Khmer Rouge genocide deserve a legitimate war crimes trial.