Letter from US Rep. Ed Royce to Hillary Clinton regarding the ECCC

US Rep. Ed Royce (R-CA) at the podium

EDWARD R. ROYCE

Fortieth District-California

June 29, 2011
The Honorable Hillary Rodham Clinton
Secretary of State
U.S. Department of State
2201 C Street, N.W.
Washington, DC 20520

Dear Secretary Clinton:

I write to share my concern over the lack of progress made by the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal established to hold accountable those most responsible for the atrocities of the Khmer Rouge. Established in 2003, the tribunal has convicted only one individual, and has only recently commenced proceedings in its second case against four former regime leaders.

As you know, concerns regarding the tribunal's impartiality led the U.S. to withhold funding from the ECCC prior to 2009. Under Section 7071(c) of the Department of State, Foreign Operations and Related Program Appropriations Act of 2010 (Pub, L. 111-117), the U.S. can only contribute funding to the tribunal if the Secretary of State certifies to the Committee on Appropriations that the United Nations and Government of Cambodia are taking credible steps to address allegations of corruption and mismanagement within the ECCC. Deputy Secretary of State Jacob Lew provided such certification in March of 2010, arguing there had been no new allegations of corruption within the ECCC since late 2008, and that other developments, including the appointment of Andrew Cayley as the court's new international Co-Prosecutor, represented a positive trend.

Prosecution of Case 002 may be Unnecessarily Drawn Out. It has been more than three decades since the Khmer Rouge was in power, and yet Case 002 against four former leaders has just begun. The four defendants, now between the ages of 79 and 85, have each denied responsibility for charges of genocide, war crimes and crimes against humanity. They have also asserted other legal defenses to their prosecution, by blaming others for the violence, raising prior assurances of amnesty, and even demanding that the tribunal consider facts outside of its temporal jurisdiction (which is limited to the years of the Khmer Rouge's reign). While these arguments should not have much traction in light of the ECCC's mandate and procedural rules, not to mention the evidence against the accused, I am concerned they will prolong an already protracted attempt to bring these regime leaders to justice.

Prosecution of Cases 003 and 004 Unlikely. In spite of Prosecutor Cayley's efforts, Cases 003 and 004 against five unnamed suspects appear to be falling apart. On April 29, 2011, the ECCC's Co- Investigating Judges announced their "investigation" of Case 003 was complete. According to Cayley and others monitoring the tribunal's progress, this investigation lacked even the most basic fact-finding procedures, such as interviewing the case's suspects and a comprehensive examination of alleged crime sites. The Judges have rebuffed Cayley's requests that they reopen their investigation. As such, I am concerned they will now move to formally dismiss Case 003.

Interference by the Cambodian Government. In spite of the State Department's prior certification that the Cambodian government has attempted to address corruption within the ECCC, more recent public discourse suggests otherwise. Prime Minister Hun Sen has publicly demanded that no additional suspects be tried by the tribunal. Cayley's Cambodian Co-Prosecutor Chea Leang has sided with the Prime Minister, claiming the remaining suspects are not "most responsible" for the crimes of the Khmer Rouge and therefore not within the jurisdiction of the court. A dismissal in Cases 003 and 004 would apparently satisfy both the Prime Minister and Prosecutor Leang.

International Community Unresponsive. The UN has publicly refused to comment on this division within the ECCC out of respect for "issues that remain the subject of judicial consideration." The UN's respect for judicial independence would be convincing if the tribunal was clearly independent from the Cambodian government. But there is ample evidence indicating otherwise. At least one former Khmer Rouge commander, once expected to be a prime target of the tribunal, has reported that the Prime Minister promised to prevent her prosecution. In May of 2011, the Cambodian Information Minister Khieu Kanharith advised international ECCC staff interested in further investigation to "pack their bags and return home."

Support for Victims. While the circumstances in which the ECCC must operate are difficult, the conduct of the Judges, the Cambodian Co-Prosecutor and the Cambodian government is regrettable. With respect to Case 002, if the defendants die before they are made to answer for their crimes, then the ECCC will certainly have failed to deliver justice to the Khmer Rouge's victims. With respect to Case 003, the government's argument that no one else can be adjudicated "most responsible" for the regime's crimes is unpersuasive. A handful of individuals alone could not have orchestrated the murder of a third of the country's population in fewer than four years.

The United States has contributed $6.8 million to the court. It cannot back such a blatant miscarriage of justice. I therefore urge the Administration to denounce the actions of the Cambodian government, and stress the importance of swift judicial decision-making in Case 002. I also believe that further U.S. funding of the ECCC should be conditioned, at the very least, upon an investigation in Case 003 that satisfies Prosecutor Cayley's requests. Failing to do so would reinforce the sense of impunity currently enjoyed by those former Khmer Rouge commanders, who have not been held accountable for their actions. It also sends the wrong signal to others who might contemplate similar acts of brutality.

Thank you for your attention to this issue.

Sincerely,

EDWARD R. ROYCE