Tribunal Problems Loom

JULY 27, 2010
JOHN A. HALL
The Wall Street Journal

Duch's case was easy. The next round of prosecutions could raise challenges to the court's legitimacy

The Khmer Rouge Tribunal in Cambodia, which began operations in 2006, has finally rendered its first verdict. Kaing Guek Eav, known as Duch, was found guilty Monday of crimes against humanity and other serious offenses; his lawyer says he will appeal. Duch was commandant of the infamous Tuol Sleng torture facility in Phnom Penh in the late 1970s, where over 12,000 victims of the Khmer Rouge were imprisoned, tortured and executed.

This first verdict is of considerable historic and symbolic importance. Cambodians have waited over 30 years for an honest public accounting, a sense of justice served, and some measure of closure. But it is important to keep the Duch verdict in perspective. There is a reason his was the first case to be prosecuted: It was the most straightforward factually and legally, with a defendant who was willing to admit his responsibility and presented little in the way of a defense. He testified extensively and frequently apologized to the victims and their families. Only in the final days of the trial did he change tactics and request to be freed.

The next defendants will not be so cooperative. Four senior leaders of the Khmer Rouge currently face similar charges pertaining to offenses under international and Cambodian law, including genocide, crimes against humanity and homicide, with their trials expected to begin early next year: Nuon Chea, the movement's ideologue; head of state Khieu Samphan; foreign minister Ieng Sary; and his wife, the social affairs minister Ieng Thirith. Unlike Duch, these defendants have mounted an aggressive defense. Their defense teams have raised challenges as to the court's jurisdiction, the fairness of the proceedings, the scope of the court's obligation to translate documents, and the effect of the secrecy of the investigative stage on the rights of the charged persons.

That is entirely their right, and indeed any verdict—whether a conviction or acquittal—will be perceived as most credible if it comes after the defense has had every opportunity to present its best case in court. But by the same token, this means the tribunal itself must be able to withstand any challenges the defendants might make to its own legitimacy. On this score, there is serious cause for concern.

The tribunal has been plagued by allegations raised by nongovernmental organizations of corruption and mismanagement involving senior Cambodian officials, including an alleged kickback scheme in which jobs at the court were exchanged for cash. The officials have denied the allegations.

The defense teams have demanded that the court investigate the corruption allegations. The court has refused to do so, stating that it lacks the jurisdiction to investigate facts outside the mandated judicial investigations and suggesting that the negative effects of corruption are speculative, casting a cloud over the perceived trustworthiness of the proceedings.

Even more seriously, the Cambodian government's actions have threatened the court's independence, striking at the heart of judicial legitimacy. The prime minister has publicly expressed his opposition to additional prosecutions, warning of a return to civil war. The Cambodian co-prosecutor subsequently refused to cooperate in the naming of additional suspects, though she did not dispute the sufficiency of the evidence against them. When the court issued summonses for six senior government officials to testify, Cambodian officials quickly said no. Yet compliance with court summonses is mandatory under Rule 60(3) of the law establishing the tribunal, and no privilege applies to government officials. The international judge chose not to press the point by not asking the judicial police to compel the witnesses to appear.

The U.N., donors and international officials have been reluctant to criticize the court or address issues of political interference directly for fear of undermining fundraising efforts. This head-in-the-sand approach cannot work indefinitely, and the real risk exists that the pattern of quiet pandering to the bad behavior of senior Cambodian officials will undermine the legitimacy of the entire proceeding. And unlike Duch, no one should think that the defense teams for the next four defendants will go quietly into the night.

It remains unclear whether this tribunal will be able to meet the challenges that the next cases will bring. Will it overcome its systemic flaws, stave off the heavy-handed political interference of the Cambodian government, maintain adequate funding and donor support, and transparently address the problems that have plagued it? Can it demonstrate its ability to fulfill its mandate and consistently meet international standards in a credible, transparent and timely manner? It would be a great disservice if the Duch verdict turns out to be the high watermark of this tribunal.

Mr. Hall is an associate professor at Chapman University School of Law in Orange, Calif.