Grotian Moment: The International War Crimes Trial Blog

Why the Cambodia Tribunal Matters to the International Community

Why the Cambodia Tribunal Matters to the International Community

By David Scheffer

This essay was originally posted on “The Cambodia Tribunal Monitor" (www.cambodiatribunal.org) -- an independent professional web site that covers the Extraordinary Chambers in the Courts of Cambodia with webcasts of the trial proceedings and of interviews with Cambodians, documents pertaining to the history and constitutional structure of the Chambers, the pleadings, orders, decisions, and judgments of the Chambers, expert commentaries, and relevant news articles. CTM is operated by the Center for International Human Rights at Northwestern University School of Law and by the Documentation Center of Cambodia.

After a decade of turbulent negotiations, which often appeared so futile and yet so vitally important to keep alive, the Extraordinary Chambers in the Courts of Cambodia (ECCC) are now a fact. Lawyers and judges are pursuing justice for the estimated 1.7 million Cambodians who perished during the rule of the Khmer Rouge from April 1975 to January 1979. But it has been thirty years since the killing fields of Cambodia were first littered with their corpses and tilled by the millions of other Cambodians forced into slave labor by the Pol Pot regime. Why should the international community care, especially when so many years have passed, the surviving senior Khmer Rouge leaders are few in number, and Cambodia is at peace? Why invest in a hybrid judicial process fraught with risk and so uncertain in its ultimate outcome? The answers lie in the relentless quest to defeat impunity for the atrocity crimes (genocide, crimes against humanity, and war crimes) that define our collective past and present and that must not shape the future.
My colleague in Phnom Penh, Youk Chhang, who is the Executive Director of the Documentation Center of Cambodia, has written a companion essay explaining why the ECCC matters so much to the Cambodian people. In this essay I briefly explore why the ECCC should matter to the international community. With so many other judicial challenges in the realm of atrocity crimes elsewhere in the world, and with so many other war crimes tribunals requiring the financial and political support of nations, can the international community appreciate and sustain its initial support for the ECCC? Let me offer some answers to that question:

During the years of negotiations which began in 1997, I was often confronted with the cynical view that the pursuit of justice for the atrocity crimes of the Pol Pot regime was a hopelessly flawed endeavor. I reminded the cynics (and there were so many of them) that we have a supreme responsibility to those who perished in Cambodia to bring the leading perpetrators to justice. I could not in good conscience negotiate the creation of tribunals for the Balkans conflict of the early 1990’s, the Rwandan genocide of 1994, the Sierra Leone atrocities of the late 1990’s, or the permanent International Criminal Court and at the same time ignore what happened in Cambodia in the late 1970’s. Nor should the international community abandon the judicial challenge arising from that horrific assault on the citizens of Cambodia while the world held itself aloof in the aftermath of the Vietnam War. For Americans in particular, the secret bombing of Cambodia during the Nixon presidency, which helped to destabilize that country as the Khmer Rouge were gaining power, leaves us no moral choice but to make every possible effort to achieve some measure of credible accountability for the slaughter that ensued.

If the futile message after World War II was “never again,” the more hopeful lesson from Cambodia that the ECCC embodies is, “never forget.” Perhaps the most fundamental purpose of the ECCC from an international perspective is that it demonstrates, provided it continues to function pursuant to its constitutional design, that impunity will not prevail in Cambodia for surviving senior Khmer Rouge leaders or others most responsible for the atrocity crimes of the Pol Pot regime. That fact alone sends a powerful signal throughout the world that the international community is getting serious, indeed very serious, about accountability for atrocity crimes and that there is no stopwatch for justice. If the ECCC can administer fair trials, fully respectful of international standards of due process, the judgments of guilt or innocence that emerge will stand as beacons of hope for all victims of such assaults on humankind. They will know that if justice could be rendered in Cambodia—three decades after that nation’s apocalypse-then there must be hope that they too can build or find the courtroom that renders credible justice, if not immediately then within the lifetimes of the atrocity lords who must face their reckoning.

The ECCC is such a uniquely crafted court that the international community will focus on whether it fulfills its mandate with objectivity and integrity or whether it succumbs to political influence and manipulation. The ECCC is not an international criminal court. Rather, it is a special domestic Cambodian court that functions in partnership with the United Nations (pursuant to a treaty and a specially designed Cambodian law) and that embraces a great deal of international criminal law and international standards of due process. While the Special Court for Sierra Leone, which was created by treaty between the Government of Sierra Leone and the United Nations, is an international criminal court, the ECCC was designed somewhat differently as a national court of “extraordinary” international character. Many international observers will watch and monitor how the ECCC will go about its daily tasks of investigation, prosecution, adjudication, and sentencing without falling prey to political intrigues that seem to define every aspect of Cambodian society. There is no question that the ECCC is an experiment, but one for which there really was no viable alternative after years of negotiations. If the ECCC succeeds in achieving credible justice within the Cambodian judiciary, it will demonstrate that international justice can be distributed among national and international courts with greater confidence that we could have imagined a decade or so ago.

Finally, the ECCC is an important test for the United Nations, which is partnered so closely with the Royal Government of Cambodia in thestaffing, financing, and administration of the Chambers. The international community would expect nothing less than the high standards of performance for the ECCC and the Cambodian government that are required by U.N. officials. How the United Nations handles this delicate relationship, which at all times requires patience, perseverance, diplomatic tact, and the defense of the rule of law, will say a lot about the international organization and its ability to manage novel but essential mechanisms of domestic and international justice.

The Cambodia Tribunal Monitor web site is also a unique international venture. It will webcast the trial proceedings of the ECCC and interviews with Cambodian citizens reacting to the trials. By bringing the trials to the forefront of the international audience and to the growing number of Cambodians with access to the internet, the Cambodia Tribunal Monitor serves the larger purpose of ending impunity through education and awareness of the atrocities of the past. It will serve that purpose well if succeeding generations across the globe never forget what happened in Cambodia.

Posted @ 3:48 PM | Experts Debate the Issues: Khmer Rouge Genocide Trials | 271 Comments | 0 Trackbacks

Into the Dark Heart of the Khmer Rouge Tribunal

EDITORIAL NOTE: THIS IS THE INAUGURAL ESSAY FOR THE "GROTIAN MOMENT: CAMBODIA GENOCIDE TRIALS BLOG." OUR PANEL INCLUDES EXPERTS, LIKE PROFESSOR JOHN HALL, WHO ARE HIGHLY CRITICAL OF THE CAMBODIA TRIBUNAL, AND THOSE WHO SUPPORT THE PROJECT, BELIEVING THINGS ARE PROGRESSING AS WELL AS COULD BE EXPECTED IN LIGHT OF THE MANY CHALLENGES. IT IS OUR HOPE THAT THIS INITIAL ESSAY WILL LAUNCH A SPIRITED DEBATE, BOTH AMONG OUR "GROTIAN" BLOGGERS AND THE PUBLIC AT LARGE -- TO APPEAR IN THE COMING DAYS AND MONTHS ON THIS WEBSITE.

John A. Hall

As I noted in my Wall Street Journal op-ed on September 21 (“Yet Another U.N. Scandal,” A.15), the co-investigating judges at the U.N.-sponsored Khmer Rouge tribunal in Phnom Penh have now formally detained Nuon Chea, “Big Brother Number Two.” Nuon Chea joins Duch, the former head of the prison at Tuol Sleng, who has been in the custody of the tribunal since August. These steps indicate that the Khmer Rouge tribunal is, at some level, moving towards a successful resolution of its mandate. Despite many concerns, the prosecutors and co-investigating judges are clearly achieving something quite significant. Most observers with any semblance of humanity are, of course, delighted by the prospect that perpetrators of some of the worst human rights abuses of the Twentieth Century are – after a long and shameful delay– finally going to be brought to justice.

Unfortunately, this optimism – though understandable - may be somewhat premature. Indeed, the Cambodian side of the tribunal in Phnom Penh has been found to be so flawed, so hopelessly corrupt, and human resource management so untrustworthy, that OAPR and independent auditors have even recommended that serious consideration should be given to the U.N. withdrawing from the tribunal unless significant procedural and managerial changes are adopted by the Cambodians.

As is well known, after nearly a decade of acrimonious negotiations, the U.N. and the Cambodian government established a hybrid tribunal within the Cambodian court system – “hybrid” because it combines international and Cambodian law, and employs a mix of Cambodian and international judges, lawyers, and staff (resulting in what has come to be seen in terms of almost competing camps: the “Cambodian side” and the “international side” of the ECCC). Unfortunately, the U.N. agreed to demands made by the Cambodian government that Cambodian judges play a decisive and indeed dominant role. This is in sharp contrast to other U.N.-sponsored hybrid tribunals, where the negotiated structure ensured that it would be the international judges, rather than the local jurists, who would have the upper hand. Further, overall management of the tribunal is largely the responsibility of the Cambodian side.

Critics of the Khmer Rouge tribunal’s hybrid nature have expressed reservations as to the wisdom of establishing a tribunal that gives a dominant role to Cambodian judges, lawyers and administrators. These concerns stemmed, of course, from the belief that the Cambodian government is not to be trusted, and that the Cambodian judiciary and legal system are corrupt, inefficient, and poorly administered. Perhaps the greatest threat to the legitimacy of the tribunal is the lack of independence of the Cambodian judges. There are worrying signs of governmental intrusion into the inner-workings of the ECCC: in August the Cambodian co-investigating judge, You Bun Leng was elevated by the Cambodian government to become president of the Cambodian Court of Appeals. This was in explicit violation of the rules governing the tribunal, which require that judges appointed to the tribunal must serve until their duties at the tribunal are completed, a rule intended to limit interference by the Cambodian government. Only after an aggressive lobbying campaign by the international side did You Bun Leng agree to remain at the tribunal. How this will play out in the future remains unclear.

As I noted in my op-ed, there are other reasons to believe the tribunal may be seriously flawed. New York-based Open Society Justice Initiative (OSJI) has raised allegations of a lack of transparency in the hiring practices for Cambodian appointees to the tribunal, and reported that the Cambodian employees – including the judges - are required to kick-back part of their salaries to senior Cambodian tribunal personnel. In response to OSJI’s allegations, the Cambodian management of the tribunal attempted to unilaterally ban OSJI lawyers from any contact with the tribunal, its staff, and its facilities.

OSJI’s allegations were an embarrassment to UNDP, which is responsible for administering a significant portion of the three-year $13.3 million national program budget for the Cambodian side of the tribunal. In response to OSJI’s allegations, UNDP brought in outside auditors to work with OAPR to assess human resources management in the Cambodian side of the tribunal. The resulting Special Audit has not been publicly released by UNDP. Indeed, journalists and observers noted to me that while the tribunal is typically highly porous, this particular document was impossible for them to obtain. This lack of transparency on an issue of such key importance to the tribunal is deeply worrying. Indeed, one U.N. appointee indicated to me that UNDP’s determination to suppress the report is likely to become “a massive public relations fiasco.” Indeed.

As I noted in my op-ed, the draft special audit which I saw makes for grim reading. The auditors found unreasonably inflated pay scales; lack of transparency in hiring practices, and the appointment of Cambodian staff lacking the qualifications required for their positions, while at the same time the international managers appointed by the U.N. have been restricted from participating in the performance evaluations of the Cambodian staff who work under them. The independent auditors concluded that the hiring process was so deeply flawed that all the Cambodian appointees to the tribunal should be fired, and a new, transparent and rigorous recruitment process initiated. This is an extraordinary recommendation given that the tribunal is half-way through its 3-year mandate, and reflects the seriousness of the auditors’ concerns. Even more shocking was the fact that the auditors recommended that serious consideration should be given to withdrawing entirely from the tribunal unless the Cambodian side agrees to specific measures essential to the future integrity of the tribunal.

It will be interesting to see how the ECCC, the U.N., donor nations, and the broader diplomatic community react to the problems surfacing at the tribunal. It will also be interesting to see what else may emerge in the coming weeks and months. We are all, of course, now paying careful attention to the events unfolding in Phnom Penh. Hopefully, through thoughtful participation in this Blog, we can participate in an on-going conversation that will include the various stakeholders as well as scholarly commentators. In this way we can not just comment on, but also perhaps positively influence, the future of the tribunal.

Posted @ 1:45 AM | Experts Debate the Issues: Khmer Rouge Genocide Trials | 416 Comments | 0 Trackbacks

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