March 2009
Judging the Khmer Rouge Tribunal
by John A. Hall
Posted March 2, 2009
Nobody would accuse the Khmer Rouge tribunal—the Extraordinary Chambers in the
Court of Cambodia (ECCC)—of moving with undue haste. Nevertheless, the court in
Phnom Penh is on the verge of beginning a trial of one of its five defendants,
that of Kaing Guek Eav, alias Duch, the former commander of an infamous torture
facility.
Unfortunately there is little reason to rejoice. Despite years of ineffectual
handwringing by the U.N., donors and monitors, the ECCC has failed to
adequately address persistent accusations of corruption and political
interference. The following four steps are the minimal prerequisites for the
ECCC to regain a semblance of legitimacy before the trials officially start
this month:
1) Limit opportunities for political interference in judicial decision making.
Fears about political influence in the ECCC’s work were heightened in December
last year when Cambodian co-prosecutor, Chea Leang, would not agree to the
investigation of additional suspects beyond the five named defendants. The
reasons she provided to justify this position had nothing to do with the
sufficiency of the evidence or the legal basis for additional investigations,
but were political in nature and aligned with the long-held views of the
Cambodian Prime Minister who has long wanted to limit the trials to his
political enemies and resisted efforts which might see people in positions of
power (or whose patrons are) brought before the court.
The Pre-Trial Chamber is set to resolve the dispute between the international
and Cambodian co-prosecutors, and has an opportunity to visibly assert the
court’s independence. Under the ECCC’s rules, this decision is set to be made
in secret and it is unclear whether its decision would be made public. Judges
need to change this rule, and ensure the court operates with total transparency
on a question which will go a long way towards determining whether the court is
seen as one which is credible and not simply a tool of the government, in the
same way that domestic courts are often viewed. At a minimum, the ECCC must
allow domestic and international monitors to witness this secret proceeding.
2) Create an independent investigation mechanism for accusations of wrongdoing.
In June 2008, Cambodian staff brought to the UN specific complaints of
corruption. These complaints followed a call by watchdog NGO Open Society
Justice Initiative for an investigation into allegations that ECCC Cambodian
staff had to pay kickbacks in exchange for their jobs. In response to the U.N.
report, which reportedly found merit in the complaints in its initial review,
apparently asked the Cambodian government to investigate. However, with reports
of retaliation against suspected whistleblowers—and a history in Cambodia of
threats against those who challenge corrupt practices, a national investigation
is unlikely to inspire confidence in local staff to come forward.
On February 23, a high-level U.N. delegation met with Cambodian Deputy Prime
Minister Sok An, and issued a joint statement that an agreement has been
reached involving continuing parallel domestic and international mechanisms to
investigate corruption. The statement was ambiguous and unclear as to
specifics. In so far as it appears to rely on Cambodian staff being willing to
report wrongdoing to ethics monitors appointed by the Cambodian tribunal
management, the parallel structure would seem to chill rather than encourage
such reports. The joint statement reeks of political compromise.
Preferable to parallel mechanisms would be an entirely independent procedure
for investigating corruption at the ECCC—one that does not rely for its success
on the honest participation of Cambodian officials. One solution is an auditing
model, which has already been used in a limited fashion at the tribunal. An
independent auditing company acceptable to both the U.N. and the Cambodians
could conduct a detailed investigation with the specific mandate of identifying
corrupt practices. The initial audit report would be circulated to the U.N. and
the Cambodian government, senior ECCC management, and donor nations, with only
an executive summary made public. Subsequent quarterly audits would, however,
be published in full. This would provide an incentive to quietly “clean house”
of the corrupt individuals and practices identified in the first report. Absent
cooperation on this matter, however, the U.N. should make public its prima
facie review of the
June 2008 allegations, suitably redacted to protect the identities of named
individuals.
3) Human rights monitors, NGOs and reporters must be allowed to keep their
sources confidential.
Civil society, including human rights monitors and journalists, often play a
critical role in calling out wrongs and abuses of power by institutions funded
by public money. While this role is often a necessary pre-requisite to
action—like investigations—their unique role must be respected. This includes
ensuring that their ability to protect their sources—those who come forward
with information about potential wrongdoing—remains intact. With the ECCC, a
real danger exists that NGOs and other monitors may be compelled in the course
of the legal proceedings at the tribunal to identify their confidential
sources. Such disclosure would undermine the tribunal by imperiling the safety
of sources and chilling potential critics and whistleblowers.
Such a testimonial privilege need not be absolute. Rather, a qualified
privilege should be recognized in those situations where the communications
were made in the course of a confidential relationship producing a reasonable
expectation of privacy and non-disclosure, and that confidentiality is
essential to the nature and type of the relationship with the confidant. The
risk of being compelled to reveal sources may result in NGOs and monitors
choosing to leave Cambodia or face a jail sentence rather than be forced to
identify their sources. The departure of such groups would be a disaster for
anyone who values the watchdog role such groups perform.
4) Ensure adequate whistleblower protections for those reporting wrongdoing.
In those situations where a whistleblower is willing for her identity to be
made public, or where her identity becomes known without her permission, there
must be a clear guarantee that such persons will be free from all forms of
retribution. Absent this assurance, those brave individuals who have come
forward with allegations of corrupt practices lay dangerously exposed. These
protections must carry the full weight of the international community – empty
promises from the Cambodian government alone to not persecute whistleblowers
will ring entirely hollow without international mandate.
The choice before the tribunal is quite clear: Proceeding with the trials
without adequately addressing the allegations of corruption and political
interference risks tainting the entire process and casting a shadow over any
legal outcomes. That would be a disservice to the people of Cambodia—for whom
the ECCC should provide an exemplar of a court operating to international
standards. It would also be a disservice to the future of international
justice, and would establish a precedent of U.N. acquiescence to regimes
seeking to profit from and control internationally-backed tribunals.
http://www.feer.com/politics/2009/march53/Judging-the-Khmer-Rouge-Tribunal
John A. Hall is a professor at Chapman University School of Law, Orange,
Calif., and a research fellow at the Center for Global Trade & Development.
"I have viewed the Extraordinary Chambers in the Court of Cambodia (ECCC)
---the Khmer Rouge Tribunal was full of arbitrary, capricious, and abuse of
discretion practice, which has no merit, and integrity in searching justice for
Cambodia and the innocence lives that had lost during Khmer Rouge Regime. "
"My Khmer Compatriots, ask not what Cambodia and her People can do for you, ask
what you can do for Cambodia and her People"
The Khmer Politicians have only interpreted the Cambodia and her beloved people
in various ways.
The point, however, is to change it...
---Khmer Blood---
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