Issue 3

For almost twenty-five years, the former leaders of the Khmer Rouge, responsible for the deaths of over 1.7 million of their fellow Cambodians, have enjoyed freedom absent domestic and international accountability for their actions. Since 1997, the United Nations and Cambodia have engaged in contentious negotiations for the establishment of a criminal tribunal to try the former leaders of the Khmer Rouge. In March 2003, the United Nations and Cambodia agreed on an internationally supported, yet Cambodian-controlled, tribunal to prosecute the former members of the Khmer Rouge for genocide and crimes against humanity that occurred between 1975 to 1979. The U.N. General Assembly is awaiting its expected ratification by the Cambodian National Assembly. While these developments appear to signal a shift toward international justice and domestic reconciliation, the presence of widely asymmetrical goals and intentions between the U.N. and the Cambodian government poses unfortunate risks both to the Cambodian people and to the international community.

This Note will argue that the agreed-upon proposal will both fail to meet international standards of justice and prove to be a greater risk than complete withdrawal of international involvement. To this end, the Note will argue that the U.N. should either demand the establishment of an ad hoc international tribunal for Cambodia (with goals and structure similar to existing tribunals created for the former Yugoslavia and Rwanda), or completely withdraw from any involvement in the adjudication of the Khmer Rouge crimes. Any alternative would compromise the best interests of the international community, the development and enforcement of international law, and the stability and rehabilitation of Cambodia.

This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. “entitlements” approach, which looks only to political self-interest, with the dominant “fidelity” approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole.

This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a “conservative” fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a “liberal” fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional “entitlements.”

Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge

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Of Power and Responsibility: The Political Morality of Federal Systems