Cambodia's Khmer Rouge tribunal in disarray

By Guy De Launey  
BBC News, Phnom Penh
June 26, 2011
 
This should have been a time of quiet satisfaction for the Khmer Rouge Tribunal.

The four most senior surviving leaders of Pol Pot's murderous government have been charged with genocide.

This week's initial hearing will deal with various technicalities and legal arguments - with the trial proper to follow within a few months.

Even critics of the process agree that this is the "heart" of the tribunal, opening the possibility that Cambodians may finally discover the reasons behind the brutal policies of the Khmer Rouge.

It follows the court's first case, in which former Khmer Rouge prison chief Duch was found guilty of crimes against humanity and sentenced to 35 years in jail.

Around two million people died in the late 1970s after Pol Pot and his comrades took over the country. They evacuated the cities and forced those who survived to make the long trek into the countryside to work in the rice paddies. Many died of malnutrition, others were summarily executed as "enemies of the revolution".

This latest genocide trial was poised to be a showcase for the tribunal's much-vaunted "hybrid" system - which allows Cambodian judges and legal officials to work alongside UN-appointed international officials.

It was supposed to be a model for future international criminal tribunals, keeping costs down while strengthening the notoriously weak local judiciary by exposing them to international standards of justice.

But there is no celebration at the dusty complex on the outskirts of Phnom Penh which houses the tribunal. Instead there is a sense of an institution in crisis. 

A court monitor has called for an investigation into allegations of negligence and the violation of judicial independence. A victims' organisation has demanded the resignation of senior UN-appointed officials. And a number of international staff became so dismayed with the way crimes were being investigated that they quit in protest. 

The problem is not the forthcoming second trial - but a proposed third case.

The international co-prosecutor identified two people suspected of involvement in the deaths of tens of thousands of people. But the co-investigating judges closed their inquiries without so much as interviewing - let alone arresting - the suspects. 

Andrew Cayley

The disagreement went public - with British co-prosecutor Andrew Cayley and German co-investigating judge Siegfried Blunk the protagonists. Mr Cayley called on the judges to take further investigative action and named the sites of several atrocities.

He told the BBC that it was vital for this third case to be taken seriously.

"It affects the integrity of this institution. The investigation needs to be done properly. Justice must not only be done, but it must manifestly and undoubtedly be seen to be done. And I believe if that does not happen, it will have serious consequences for the court as a whole."

The judges responded with a series of statements. They ordered Mr Cayley to withdraw what they called "confidential information".

They warned they would punish a "disloyal staff member" they suspected of leaking information. And they "welcomed" the resignation of international staff who disagreed with their approach to investigations, one of whom referred to a "toxic atmosphere of mutual mistrust" in a "professionally dysfunctional office".

 Mr Blunk also rebuked a journalist who asked whether the judges were trying to "bury" the third case, telling him: "The use of the word 'bury' is insolent, for which you are given leave to apologise within two days." 

Exit strategy?

All of this was followed with an increasing sense of incredulity by long-time observers of the tribunal. 

"There are only two possible answers for all the chaos and shenanigans. Either the co-investigating judges are not professionally able, or they're under political pressure. Either way we need a proper investigation," said Ou Virak, the director of the Cambodian Center for Human Rights.

 Theary Seng

The head of a victims' association, Theary Seng, called on Mr Blunk to resign, along with the UN-appointed administrator of the tribunal.

"We had expected and trusted the UN personnel in the court to raise the quality of justice to international standards. But what's happening is deceit - it's deceit with UN complicity, with UN insignia on it," she told the BBC.

The US-based Open Society Justice Initiative, which has been monitoring the tribunal through its office in Phnom Penh, sounded further alarms. Its most recent report said: "The court's actions suggest that the outcome of a case has been pre-determined, and that judges have refused to gather evidence or investigate facts."

The UN's response raised even more eyebrows. In a statement from Secretary General Ban Ki Moon's spokesman, it denied "media speculation" that it had ordered the investigating judges to block the third case. The English language newspaper The Cambodia Daily noted that even if there had been any such claims, they had not been widely published. 

The fate of the third case - along with a possible fourth - remains undecided. But the whole affair has been damaging. 

Political pressure has always been part of the landscape at the special courts. The Cambodian government has repeatedly made it clear that it wants the process to end after the second trial. 

But victims' organisations and human rights groups hoped the presence of international officials would ensure the integrity of the institution. Now they are wondering whether donor countries are getting tired of funding the Tribunal - and looking for an exit. 

The biggest concern is whether all the controversy will overshadow the trial of the senior Khmer Rouge leaders.