Leaked document casts doubt on impartiality of Khmer Rouge judges

Prosecutor and judges bought out by Hun Xen

Critics have accused Ms. Chea and the investigating judges, German Siegfried Blunk and Cambodian You Bunleng, of bowing to political pressure.

As the UN-backed tribunal prepares to bring more former Khmer Rouge leaders to trial, a confidential document obtained by the Monitor raises questions about the judges' independence.

June 8, 2011

By Jared Ferrie, Correspondent

Chiang Mai, Thailand

The Christian Science Monitor

As an international tribunal prepares to bring former Khmer Rouge leaders to trial beginning June 27, a confidential document obtained by The Christian Science Monitor raises questions about the UN-backed court’s ability to independently prosecute members of the brutal regime.

The 2008 court document reveals when tribunal prosecutors laid out their case against two former military commanders, they requested that the investigating judges detain them.

The level of detail in the document builds a strong case against the commanders, but the judges ignored the request to detain them and didn’t even summon the suspects for questioning during 20 months of investigation. The judges lack of response underscores concerns about their ability to carry out their duties. When they announced April 29 that they had concluded their investigation, many victims and observers were outraged, pointing out that investigators failed to question suspects and witnesses, or even inspect sites that could contain mass graves.

“[This] could in no way amount to an investigation in the eyes of any reasonable observer and is nothing short of a slap in the face to the millions of victims of the Khmer Rouge,” says Ou Virak, president of the Cambodian Centre for Human Rights (CCHR).

On Tuesday, the coinvestigating judges rejected a request by International Co-Prosecutor Andrew Cayley to extend the investigation, sparking a new round of criticism from observers and watchdog groups.

“If the judges had ever been serious about carrying out their legal obligations, as well as their ethical ones, they would be looking for a way to conduct the investigations with thoroughness and precision,” says Clair Duffy of the Open Society Justice Initiative. “Instead they've availed themselves of every opportunity to shut them down.”

She adds that it was “particularly disturbing” that the judges treated allegations of war crimes and crimes against humanity with such “flippancy.”

Khmer Rouge tribunal prepares for first, and possibly only, verdict in Cambodia

The Khmer Rouge tribunal is set to deliver its first verdict Monday in the case of former torture chief Duch. It may also be the last verdict at a court beset by allegations of corruption and political interference

July 23, 2010
By Jared Ferrie, Correspondent
The Christian Science Monitor

Phnom Penh, Cambodia - In a widely hailed victory for international justice, a war crimes tribunal in Cambodia is set to deliver its first verdict Monday in the case of a former Khmer Rouge torture chief. But some observers fear he may end up being the only regime leader to face justice in a cash-strapped court beset by allegations of political interference and corruption.

Kaing Guek Eav, known by his Khmer Rouge alias “Duch,” oversaw the torture and killing of about 15,000 prisoners during the regime’s 1975-1979 rule. His trial has played an important role in a nationwide “healing process” that is helping Cambodians come to terms with a regime that killed as many as 2 million people, says Reach Sambath, a spokesman for the United Nations-backed court.

Officials say almost 31,000 Cambodians visited the tribunal during the 77-day trial, and millions more watched proceedings on television or listened to radio broadcasts.

Duch alone has admitted responsibility for his role in the killings. But Duch was not a member of the ruling clique, unlike the four additional defendants still to be tried.

Government pressure

Some observers warn that current government officials who were once Khmer Rouge cadres could step up efforts to prevent damaging information from being revealed during in the next trial. David Chandler, a historian and former US diplomat to Cambodia, told the Monitor in November that he would not be surprised if Duch was the only suspect to face justice.

Already the government has shown reluctance to participate in investigations. Cambodian officials said it is unnecessary for government members to comply with court requests to be questioned as witnesses. Prime Minister Hun Sen said he would prefer to see the court fall apart than allow charges to come against a handful of additional suspects, as the prosecution intends.

Those statements, and other less obvious tactics, put extreme pressure on Cambodian court officials who must consider their employment prospects once the tribunal wraps up.

“In the end, the ability of individual Cambodian actors to resist interference by senior political figures and still maintain a position within the Cambodian legal system is limited,” the Open Society Justice Institute (OSJI) warned in a report this month. While OSJI said “political interference was not an important factor in the conduct of the Duch trial,” the watchdog indicated that pressure from government officials could undermine future trials, which promise to be far more politically charged.

Donors hesitant over interference, corruption

Such controversies do not strengthen the confidence of donors, upon whom the court depends for its survival. The tribunal, which has already cost about $100 million, is chronically short of cash. It was bailed out most recently by Japan, which announced early this month that it would provide $2.3 million to pay salaries of national staff.

The hybrid court places Cambodian staff alongside international staff, the latter of whom are directly employed by the United Nations and have not faced payroll troubles.

The tribunal is also blighted by unresolved allegations that Cambodian court employees were forced to pay kickbacks in order to obtain and keep their jobs.

Aging defendants

A further worry is that the painfully slow pace of justice may prevent further trials. No date has been set for the trial of top-level Khmer Rouge officials Khieu Samphan, Ieng Sary, Ieng Thirith, and Nuon Chea. All four suspects are elderly and have health problems. There are concerns that they may not live to face trial, particularly if Cambodian politicians engage in delay tactics.

The case against them became even more complicated in December when the court laid charges of genocide, which stemmed from the slaughter of ethnic Vietnamese and Cham Muslims. Both Mr. Chandler and Philip Short, who wrote the definitive biography of deceased Khmer Rouge leader Pol Pot, say the charges were dubious and would only serve to delay proceedings.

Short argues that the minority ethnic communities were targeted for political reasons, as was much of the majority ethnic Khmer population. In an e-mail interview, Mr. Short called the charges “misconceived and unhelpful.” He argues that the suspects already faced charges of crimes against humanity, which would be much easier to prove.

The court’s former lead prosecutor, Robert Petit, has also expressed worry that the remaining suspects may escape justice.

“That’s one of the things that keeps me awake at night,” he says.

Cambodian's Khmer Rouge trials hits another hurdle

The Extraordinary Chamber of the Courts of Cambodia (ECCC) during a hearing on June 30, 2009. Two judges on the tribunal have been accused of taking instruction from their respective governments. [AFP]

Fri, 30 Oct 2009
David Boyle
ABC Radio Australia

The beleaguered Khmer Rouge trials in Cambodia have hit another obstacle.

Two pre-trial judges, including Australian Rowan Downing QC, have been accused of taking instruction from their respective governments in a motion filed last week.

The Extraordinary Chambers of the Courts of Cambodia were created to try the leaders of the Khmer Rouge regime, which is accused of killing more than two million people in the 1970s.

The Khmer Rouge tribunal has endured considerable controversy in its four years of existence and now many people believe its become entrenched in its own politics.

The lawyers of accused war criminal, Ieng Sari, have filed a motion requesting that two pre trial judges, including Mr Downing, be removed from the court due to a public perception of bias.

Radio Australia has obtained a copy of the motion that seizes on comments recently made by the Cambodian Prime Minister, Hun Sen.

Mr Sen alleged the two judges have been acting on the orders of their respective foreign governments.

'Fair trial'

Michael Karnavas is one of the co-defence lawyers who filed the motion.

"What we're saying is we're caught in the middle of all of this, we're entitled to a fair trial," he said.

"The average person in Cambodia believes their Prime Minister, the United Nations hasn't stepped up to the plate, to either defend these judges or to show that they've taken any action to look into these allegations."

"The judges haven't spoken up, I suspect because of their position, but we want this matter cleared."

The two pre-trial judges, Mr Downing and Dutch national Katinka Lahuis are unable to comment on either Hun Sen's comments or the motion being filed against them.

Appropriate behaviour

But a spokeswoman for the court, Yuko Maeda, says the court believes all their court officials are behaving appropriately.

"We believe all the judicial officials who work at the ECCC are performing accordingly, independently from any of the executive bodies."

"This is the international standard, ECCC is following the international standard. We believe that none of the judicial officials who are working at the ECCC are influenced by any executive body."

Heather Ryan, a court monitor with the Open Society Justice Initiative, says she's seen no evidence to confirm the allegations, but says they should be publicly addressed to protect the credibility of the court.

"Many of the international players and the judges are in my view, unfortunately reluctant to speak publicly when statements like this that impact the credibility of the court are made," she said.

"I think it's part of that sort of general reluctance of commentators and officials of the courts to speak about what's going on in the court publicly. There's kind of a conspiracy of silence."

Bribery claims

An early report into the court's activities prepared for the US Agency for International Development concluded corruption was "pandemic" within the administration of local officials with bribery a widely accepted practice.

A subsequent report produced by the court, which was initially suppressed, revealed similar findings.

But there is no suggestion that these allegations relate to the judges of the court.

Lawyer Michael Karnavas dismisses any suggestion that his motion is designed further erode the tribunal's reputation, arguing it upholds expectations of transparency and due diligence.

"I haven't made these allegations, somebody else has. I'm not the one getting kick backs from the national staff. I'm not the one who is hiding the UN report, others are doing that," he said.

"So you can't blame the defence for trying to shed light and trying to make this process as transparent as possible."

Mounting scepticism

Ms Ryan, of the Open Society Justice Initiatives, says the court should be concerned about mounting public scepticism over its transparency and capacity to deliver swift and effective justice.

"The court has an obligation now, if it's to preserve its obligation to the people of Cambodia to go out of its way and take additional steps to be transparent, to scrupulously deal with any allegations of misconduct or wrong doing and to ensure that people can see that they actually are serving the interests of justice."

"Right now when everything is done behind closed doors people don't see that and so when statements like the one that is alleged by Ieng Sari's lawyers are made, it feeds on a kind of inherent suspicion."

Probe 'will not interrupt KRT'

Toul Sleng prison chief Duch at the Extrodinary Chambers in the Courts of Cambodia on Friday. (Photo by: AFP)

Wednesday, 21 January 2009
Written by Georgia Wilkins
The Phnom Penh Post

Criminal investigation into corruption at Khmer Rouge tribunal will not interrupt Duch's trial, Municipal Court prosecutors say, despite legal overlap.

PROSECUTORS at the Phnom Penh Municipal Court claim that a criminal investigation into corruption at the Khmer Rouge tribunal will not interrupt the first trial at the court, that of Tuol Sleng prison chief Kaing Guek Eav, which is scheduled to begin in the middle of proposed investigations with judges and administrative staff.

Sok Kaliyan, deputy prosecutor at the Municipal Court, told the Post Tuesday that he expected investigations, which had already begun, to take a maximum of two months, after which a verdict could be given.

Despite the initial hearing for the torture chief's trial scheduled for February 17, Sok Kaliyan was confident investigations would not interrupt the highly anticipated first trial.

"They are different things," he said.
International defence lawyers for former Khmer Rouge Brother No 2 Nuon Chea filed a criminal complaint to the civil court Friday, claiming Sean Visoth, the government's top official to the Khmer Rouge tribunal, as well as the court's former chief of personnel, Keo Thyvuth, violated criminal law by "perpetrating, facilitating, aiding and/or abetting an organised regime of institutional corruption at the ECCC during the pending judicial investigation".

The complaint also accused judges of misdemeanours, prompting Cambodian judges to make a statement denying the allegations.

Foreign lawyer summoned
Sok Kaliyan confirmed that one of the foreign legal adviser for Nuon Chea, consultant Andrew Ianuzzi, had already been summoned to the court and would appear on Thursday to be interviewed.

He said summoning the complainants was the first step in the inquiry, after which he would decide who else to summons.

"The complaint is divided into two parts - the first part relates to people working in the head of administration and the second relates to judges - so after I interview the complainants, I will decide who to interview from these [sections of the court]," he said.

Ianuzzi said Tuesday he was ready to be summoned to the court.

"We are looking forward to helping the court," he said.

New Report Finds Critical Needs At Khmer Rouge Tribunal

Open Society for Justice Initiative (OSJI)

For immediate release
Contact: David Berry: +1 212 548 0385 (New York)

NEW REPORT FINDS CRITICAL NEEDS AT KHMER ROUGE TRIBUNAL

~ Call for Immediate Action as Investigations Begin ~

New York, June 27, 2007—The Extraordinary Chambers in the Courts of Cambodia (ECCC) must take urgent action to address serious challenges confronting the court, according to a report released today by the Open Society Justice Initiative.

As the ECCC moves into its investigations phase, immediate steps must be taken on an array of issues, including:

• getting the courtrooms ready for pre-trial hearings, which are expected to start in a few months;
• providing protection and support to potential witnesses;
• making the court’s operations more accessible to the Cambodian public through enhanced outreach; and
• instituting more transparent reporting on the court’s financial and administrative operations.

Without prompt attention to these and other needs, further delays will likely plague the court and erode public confidence, the report warns.

“The ECCC has achieved a great deal in its first 18 months,” said James A. Goldston, executive director of the Open Society Justice Initiative. “The adoption of internal rules last week marked a significant milestone for the court. But the Extraordinary Chambers still has much to do if it is to fulfill its mandate.”

The 24-page report recognizes the court’s achievements since it officially opened its doors, and also highlights the key tasks the court needs to tackle in coming months so the ECCC can be fully prepared for trials in early 2008.

The report highlights four key areas for action: enhancing the court’s independence and impartiality; securing compliance with due process and fair trial standards; fostering transparency and public engagement; and further developing the capacity and effectiveness of court operations. The report provides recommendations to the ECCC, the United Nations, donor States, and Cambodian NGOs on steps they can take to improve the court’s performance.

The report is available at: http://www.justiceinitiative.org/db/resource2?res_id=103799.

Since 2003, the Justice Initiative has assisted the ECCC through technical assistance, advocacy efforts and court monitoring. Last week, the ECCC’s judges adopted a set of internal rules which will govern the work of the tribunal. The passage of these rules paves the way for the formal investigative phase to start. The Justice Initiative’s report looks ahead to see how the court can meet the challenges before it.

The URL for this document is:
http://www.justiceinitiative.org/db/resource2?res_id=103799.

___________________
The Open Society Justice Initiative, an operational program of the Open Society Institute (OSI), pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies worldwide. The Justice Initiative combines litigation, legal advocacy, technical assistance, and the dissemination of knowledge to secure advances in the following priority areas: national criminal justice, international justice, freedom of information and expression, and equality and citizenship. Its offices are in Abuja, Budapest, and New York.

www.justiceinitiative.org.

OSJI urges further ECCC kickback investigation

Justice Watchdog Urges Further Kickback Investigation

Mean Veasna, VOA Khmer
Original report from Phnom Penh
29/06/2007

A tribunal watchdog has called on the UN to further investigate charges that Cambodian judges pay kickbacks to high-ranking officials in order to sit on the courts, while outlining a bevy of weaknesses that remain in the process to try former top Khmer Rouge leaders.

The Open Society Justice Initiative praised agreement on internal rules for the Extraordinary Chambers in the Courts of Cambodia, but said the UNDP must ensure a recent audit of the courts' human resource management unit is acted upon.

OSJI's Cambodia Justice Initiative Director Long Panhavuth said the UNDP audit should be made public to quell doubts over kickbacks.

"If the report is not made public, then the people are still in doubt about the problem which has not been solved," he said. "So we believe that there should be an investigation to ensure the whole tribunal is just."

The courts have so far declined to release the audit.

In a June report, OSJI cited the courts failure to address "persistent allegations" of kickbacks as a threat to the credibility of the tribunal. It further cited "flaws in the Cambodian judicial selection process" and "delays and fractures between the national and international judges" as impediments to justice.

"Challenges" to the tribunal, OSJI said, included "maintaining the reality and appearance of independence and impartiality of the judiciary and other organs of the court; ensuring compliance with due process and fair trial standards; fostering transparency and public engagement; and improving overall capacity and effectiveness of operations."

"As the ECCC moves into its investigations phase, immediate steps must be taken on an array of issues," OSJI said, "including: getting the courtrooms ready for pre-trial hearings, which are expected to start in a few months; providing protection and support to potential witnesses; making the court's operations more accessible to the Cambodian public through enhanced outreach; and instituting more transparent reporting on the court's financial and administrative operations."

"Without prompt attention to these and other needs," OSJI said, "further delays will likely plague the court and erode public confidence."

OSJI has been involved in a row with the courts since it pointed out allegations of kickbacks in February. Government and court officials strongly denied the allegations, and a spokesman said the government had considered severing ties with the group or ejecting some of its members.

The OSJI report and statement Wednesday received little credence at the courts, ECCC spokesman Reach Sambath said Friday.

"Everyday, we do not work based on this report," he said. "We understand what we have to do. Some of the points [in the report] are unreasonable and are not being used. So, our goal is to have a good tribunal, and it will take a long time."

UN concealing report about KR Tribunal? [- Source: Results of the UN investigation confirmed the suspicion of corruption at the ECCC]

10 June 2007
By Hassan
Radio Free Asia
Translated from Khmer by Socheata

Human rights organizations accused the UN of attempting to conceal its corruption investigation report for the Khmer Rouge Tribunal (ECCC).

According to the Phnom Penh Post newspaper published this week, legal experts demand that the UN provide a full disclosure of this report because its attempt to conceal it could undermine the credibility of the KR Tribunal which the UN helps pay for.

Brad Adams, Asia director of Human Rights Watch (HRW), told the newspaper that this tribunal does not have sufficient protection mechanism in place to prevent political influence from the government or to prevent the kickback corruption in the tribunal.

Helen Jarvis, head of the ECCC press office, said that the content of the (UNDP) audit is still in draft form, and that discussions are underway between the two parties involved (UNDP and ECCC). She added that it is not a public document.

A reliable source at the tribunal claimed that the results of the investigation confirmed the suspicion of corruption at the ECCC.