Efforts to Limit Khmer Rouge Trials Decried

Chan Kimsrun and her child in a photo taken by interrogators at the brutal Tuol Sleng prison in Phnom Penh. (Documentation Center of Cambodia, via European Pressphoto Agency)

January 31, 2009
By SETH MYDANS
The New York Times

PHNOM PENH, Cambodia — 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 hearing this month, the wrangle over numbers is reinforcing longstanding concerns about the tribunal’s fairness and independence.

The Cambodian government, critics say, is trying 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 runs the Cambodia office of the United Nations High Commissioner for Human Rights.

The first defendant is the man with perhaps the most horrifying past: Kaing Guek Eav, known as Duch (pronounced DOIK), 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, during 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 on 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 in Cambodia died from disease, hunger or overwork, or were executed 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 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. Mr. 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. She said they would cost too much, take too long and 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 Mr. Hun Sen’s plan might be to try only Duch — “a garden-variety war criminal” — and hope the other defendants die before they can be tried.

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

Mr. Hun Sen and several senior members of his government were Khmer Rouge cadres, 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 is accused of overseeing the torture and killing of thousands.

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

“Some in Phnom Penh are apparently frightened that the E.C.C.C. might actually succeed, that it might serve as an example of accountability that could be applied more widely,” said James A. Goldston, executive director of the Open Society Justice Initiative, a New York-based organization that pursues legal reform.

“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.

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

But the poll 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 coerced judiciary.

Confidence in the tribunal has also been eroded by allegations of kickbacks that are familiar in the Cambodian court system. The United Nations has investigated the allegations but has not released its findings.

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 must now go to a panel known as the pretrial chamber, whose makeup reflects the supermajority structure of the tribunal — three Cambodian judges and two foreign judges.

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

The real test, Mr. Scheffer said in a recent article in The Phnom Penh Post, will be whether the judges in the pretrial 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.