Justice Delayed and Denied

October 13, 2011
By JAMES A. GOLDSTON
I.H.T. Op-Ed Contributor

This past Monday, Siegfried Blunk, the international co-investigating judge at the United Nations-backed Khmer Rouge tribunal in Cambodia, resigned. As Judge Blunk explained, repeated demands by senior Cambodian officials to end all ongoing investigations have been “perceived as attempted interference” and “call in doubt the integrity of the whole proceedings.”

For months, civil society organizations, including my own, have warned that the Cambodian government’s public opposition to the two remaining cases under investigation (“003” and “004” in the parlance of the Extraordinary Chambers in the Courts of Cambodia) threatened the very independence of the court. Judge Blunk has now, sadly, confirmed our greatest fears.

As a full partner in the agreement to establish the court, the United Nations might have been expected to take effective action. But to general astonishment, Secretary General Ban Ki-moon simply thanked the judge for his service, announced that he was working to secure a replacement, and restated his strong support for the work of the E.C.C.C. In other words, business as usual.

But business as usual has led to this impasse. At virtually every step along the path since the Khmer Rouge left Phnom Penh in 1979, the United Nations — and the principal donor governments that shape its E.C.C.C. policy (including the United States, France, Japan and Australia) — have disappointed public expectations.

When, in the 1990s, Prime Minister Hun Sen balked at a court with a majority of international judges, the United Nations gave in, and so insured that the political taint that compromised ordinary Cambodian courts would infect the E.C.C.C.

A decade later, when reports emerged that Cambodian court staff had to kick back part of their salaries to political sponsors, the U.N. resisted a full-blown inquiry and then accepted the appointment of a watchdog who, by all accounts, has done little to stem corruption.

In recent months, when Judge Blunk and his Cambodian counterpart seemed determined to shut down an investigation without carrying out any field investigation, interviewing the prime suspects, or allowing victims any say, U.N. officials again refused to act, claiming, wrongly, that “judicial independence” precluded them from addressing any judicial misconduct short of an express bribe.

Whatever Judge Blunk’s aims, his resignation in the face of “such pressure by government officials” that his ability “to perform his duties independently could always be called in doubt” puts, the U.N. in a conundrum. On the one hand, it removes from the scene a figure whose own performance had raised many questions. But at the same time, it renders wholly inadequate the U.N.’s continued uncritical support for a court whose lack of independence has been so openly, definitively exposed.

Simply replacing Judge Blunk does nothing to address the twin problems at the root of the court’s troubles: Hun Sen’s adamant refusal to “allow” only those prosecutions, charges and witnesses that he decrees; and international donors’ reluctance to fund any more trials than the first (of a man who admitted his crimes) already completed and the second (of four senior surviving Khmer Rouge leaders) scheduled to start sometime in 2012.

Going forward, bland declarations of support for the process will not cut it. The U.N. must change course.

First, the U.N. secretary general himself must immediately convene the key diplomatic actors from Phnom Penh, Washington and other capitals and make clear that they have a choice: Either provide the political support and requisite moneys to sustain independent investigations, trials and appeals in cases 002, 003 and 004, or state now the limits of what they will permit. To be sure, it is preferable that all ongoing investigations proceed to their legal conclusion.

But if Hun Sen does not suddenly reverse his opposition to further trials, and the major donors do not push him to do so by pledging full financial reserves for remaining cases, the Cambodian people deserve to know that now. Devising a legal fiction to cloak a political solution would be the worst result of all.

Second, the U.N. must quickly fill the vacant position of special representative to the secretary general on the E.C.C.C. with a person of unimpeachable integrity and stature. Only someone prepared and able to engage in diplomatic hardball with senior leaders in Phnom Penh, Washington and other capitals should apply.

Finally, even if justice may not triumph, the truth must. The secretary general should commission a respected, independent scholar, and grant full access to U.N. files, to write a no-holds-barred report of the E.C.C.C. — from inception to end — that establishes the facts and draws lessons for future U.N. engagement with hybrid tribunals.

At this point, it would take extraordinary powers to ensure that law and evidence — rather than politics and finance — dictate the future course of justice in Cambodia. Despite the historical record, we must hope the U.N. is up to the task.

James A. Goldston is executive director of the Open Society Justice Initiative.