Cambodia tribunal dispute runs deeper

Who will prevail: Justice or the Strongman?

Tuesday, January 27, 2009
By Seth Mydans
International Herald Tribune (Paris, France)

PHNOM PENH: At first glance it seems to be simply a numbers game: whether to try 5, 10 or more defendants for the deaths of an estimated 1.7 million people at the hands of the Khmer Rouge three decades ago.

But as a United Nations-backed tribunal prepares to hold its first trial session next month, it is embroiled in a wrangle over numbers that goes to the heart of longstanding concerns about the tribunal's fairness and independence.

The Cambodian government, critics say, is attempting to limit the scope of the trials for its own political reasons, a limit that the critics say would compromise justice and could discredit the entire process.

"To me, it's the credibility of the tribunal which is at stake, its integrity and therefore its credibility," said Christophe Peschoux, who heads the office of the United Nations High Commissioner for Human Rights in Cambodia.

The first defendant is the man with perhaps the most horrifying record: Kaing Guek Eav, known as Duch, the commander of the Tuol Sleng torture house in Phnom Penh, where at least 14,000 people were sent to their deaths. His trial is to open with a procedural hearing, set for Feb. 17, at which more substantive sessions, involving witnesses and evidence, are expected to be scheduled.

Four other defendants, all of whom were members of the Khmer Rouge Central Committee, are also in custody, waiting their turns to face charges in crimes that occurred while they were at the top of the chain of command from 1975 to 1979. As much as one-fourth of the population died from disease, hunger, overwork or execution under the Khmer Rouge's brutal Communist rule.

Those five defendants are enough, Cambodian officials say.

But foreign legal experts counter that within reasonable limits, the judicial process should not be arbitrarily limited.

After a decade of difficult and not always friendly negotiations between the United Nations and the Cambodians, a hybrid tribunal is in place, with Cambodian and foreign co-prosecutors and panels of co-judges in an awkward political and legal balancing act. Now, even before Duch's trial gets under way, that balance is being tested.

Last month the foreign co-prosecutor, a Canadian named Robert Petit, submitted six more names to the court for investigation, saying that he had gathered enough evidence to support possible charges. Petit's Cambodian counterpart, Chea Leang, objected - not on legal grounds, but for reasons that appear to reflect the government's position on the trials.

Additional indictments, the Cambodian prosecutor said, could be destabilizing and would cost too much and take too long and would violate the spirit of the tribunal, which she said envisioned "only a small number of trials."

Prime Minister Hun Sen, who bargained hard with the United Nations over the shape and scope of the tribunal, has said that trying "four or five people" would be enough, although there is no formal limit on the number.

Indeed, Peter Maguire, author of "Facing Death in Cambodia," suggests that Hun Sen's plan might be to try only Duch - "a garden-variety war criminal" - and hope the political defendants die before they can be tried and judged.

The additional names submitted by Petit have not been made public. But people close to the court say that none of them holds a significant position in Cambodia's current government.

Both Hun Sen and several senior members of his government were Khmer Rouge cadre, but experts say they do not fall under the scope of the tribunal and are not at risk of prosecution.

The mandate of the court is to try the top leadership of the Khmer Rouge and "those most responsible" for the crimes - that is, people like Duch, who oversaw the torture and killing of thousands of people.

In Cambodia, though, courts do not head off in their own directions without tight control from Hun Sen or the people around him. Some advocates of the tribunal - the Extraordinary Chambers of the Courts of Cambodia, or ECCC - see it as offering Cambodia a model for a more independent judiciary.

"Some in Phnom Penh are apparently frightened that the ECCC might actually succeed - that it might serve as an example of accountability that could be applied more widely," said James Goldston, executive director of the Open Society Justice Initiative.

"With the Feb. 17 start of the first trial fast approaching, now is the moment to show that the court is not a tool of the Cambodian government," he said. "The court's credibility is on the line."

Most Cambodians are eager to see Khmer Rouge leaders brought to trial, according to an extensive survey published last week by the Human Rights Center at the University of California, Berkeley.

But the study found that about one-third of people answering the survey had doubts about the tribunal's neutrality and independence, perhaps because of their experience with their own corrupt and politically controlled judiciary.

Confidence in the tribunal has also been eroded by allegations of kickbacks that are familiar in the Cambodian court system.

The allegations have left the United Nations with the awkward choice of taking action or being seen as condoning corruption.

Now, with the dispute between the two co-prosecutors in the open, the checks and balances of the hybrid court will meet their first major test.

The dispute over the number of defendants must now go to a pre-trial chamber whose makeup reflects the supermajority structure of the tribunal, which is made up of three Cambodian judges and two foreigners. One of the foreign judges must join the Cambodians, in a four-vote majority, for a decision to prevail.

If the panel is deadlocked three to two, according to court rules, the prosecution must proceed.

But court watchers said it remained to be seen how cooperative the Cambodian staff would be if the government did not want those cases to move forward.

There is nothing so far to suggest that this process will not work as it should, said David Scheffer, a law professor at Northwestern University School of Law who took part in negotiations to create the tribunal.

The real test, he said in a recent article in The Phnom Penh Post newspaper, will be whether the judges in the pre-trial chamber "step up to the plate and do their duty with the highest degree of judicial integrity."

"We can all assess that when their decision is rendered," he said.