Sunday, May 31, 2009By James Bair
Originally posted at http://impossibleasflying.blogspot.com
In the long tale of good intentions gone awry that is the Extraordinary Chambers in the Courts of Cambodia, the one area of the Court that had continued to give me hope was the Victims Unit. As I have written elsewhere, the VU is a pioneering experiment in international criminal law, combining the victims’ participation rights of the civil law system with a war crimes tribunal to allow victims a right to present their own case against those accused of the slaughter of nearly 1.5 million Cambodians under the Khmer Rouge regime.
Sadly, the VU now appears to have fallen victim to political influences, as well. On May 11, victims’ lawyers filed a motion with the court calling on the UN to release the results of its investigation into corruption at the ECCC. The next day, these lawyers instead found that they themselves had now become the target of investigations to determine whether their work would “discredit” the court. The following Monday, the head of the Victims Unit, a courageous, dedicated professional with a long career in international human rights, abruptly resigned, to be replaced by the Court’s Public Affairs officer, a former librarian from Australia.
In the May18 press release announcing this change, the ECCC stated that it was “taking steps to strengthen and streamline its activities in the areas of Public Affairs, Outreach and the Victims Unit.” On its face, this is the type of neutral language that only a lawyer could love. It is mildly forceful, and has active verbs like “strengthen” and “streamline” that are hard to quarrel with, especially at an institution that is not known for either its strength or its efficiency. But a closer look shows that these changes could well threaten the independence and effectiveness of the Victims Unit, and perhaps mark the end of the ECCC’s last shreds of legitimacy.
Nearly a year ago now, bowing to increasing pressure from the international community, the United Nations began an investigation into charges of corruption and graft at the ECCC. In August of last year, the Court decided to supplement this effort by appointing Dr. Helen Jarvis, then the head of Public Affairs for the ECCC, as the Court’s “ethics monitor.” This was intended to shed light on accusations at the Court and dispel any fears that corruption would taint the legitimacy of any verdict rendered by the Tribunal. Shortly after Dr. Jarvis’ appointment, however, it was announced that the Cambodian government would review all future allegations in secret. Not surprisingly, allegations of corruption at the court continue, and the details of the UN’s investigation have still not been made public.
The victims of the Khmer Rouge apparently decided that they’d had enough. According to a Phnom Penh Post article published on May 12, lawyers for the civil party victims filed a motion with the Court demanding that the results of the UN investigation be made public. In a press release, the lawyers stated that:
“The existence of the [UN report] is directly relevant to the proceedings in the Duch trial, as its publication after the close of the proceedings may expose the trial judgment to claims ... that corruption within the ECCC rendered the trial unfair.”
In what seemed to be a reference to Dr. Jarvis’ work as “ethics monitor,” the lawyers went on to say that:
"We were hoping that there would be an anti-corruption mechanism in place by now, but the government and the UN have decided against this. We are now in the position where we are four weeks into the first trial and the allegations we are reading about are actually getting worse ... it's a ticking bomb.
"The victims,” he emphasized, “know that it is not closure if the verdict is tainted."
The Court has thus far not responded to the motion. However, in a rare moment of rapid response, the Cambodian government announced an immediate change in policy that could only have been triggered by the civil party filing.
On Tuesday, May 12, the day after the filing, a spokesman for Cambodia’s Council of Ministers announced that the Cambodian government was now monitoring “all international staff” at the Tribunal, saying: “the international side has corruption, too.” When reporters pointed out that this amounted to a tacit admission of still-undisclosed corruption on the Cambodian side of the Court, he backed off slightly, saying that no evidence of corruption on the Cambodian side had yet emerged.
The spokesman went on to emphasize that these new investigations will include “some civil party lawyers and interns working at the UN-backed court.” When asked to specify the type of “corruption” of which these international lawyers were suspected, he said: “This is not interference. I am not threatening anyone. We are keeping watch and looking for information that might discredit the ECCC."
Not surprisingly, he did not clarify what sorts of things might “discredit” the court, though one suspects that probing around things that the Cambodian government might prefer remain secret would qualify.
And so, rather than addressing the serious accusations raised by the victims, the Cambodian government has decided instead to investigate the lawyers who raised the concern. This is precisely the same thing that happened in January in response to corruption allegations raised by the Defense – rather than responding to the charges, the Cambodian judges threatened to sue the defense lawyers.
But the most disturbing news came the following Monday, May 18, when it was announced that the head of the Victims Unit, KEAT Bophal, had suddenly resigned. Ms. Bophal, who had formerly worked for the UN High Commissioner for Human Rights, had been director of the Unit for a year and a half. While no proof has been offered of a connection between these events, it does seem curious that her abrupt departure came only days after victims’ lawyers became emboldened to challenge corruption at the ECCC.
The choice of her replacement is telling, and hints that the VU’s focus may be about to shift from pursuing justice for victims to maintaining peace with Cambodia’s ruling politicians. While Ms. Bophal had a lengthy career in the field of human rights advocacy before assuming the directorship of the Victims Unit, Dr. Jarvis is a former librarian who has until this point served as the ECCC’s Public Affairs Officer. Before joining the Court, it has been reported that she was a longtime advisor to the Cambodian Deputy Prime Minister, Sok An, which has led some to question her impartiality.
Dr. Jarvis' work at the Tribunal thus far has not been to advocate for victims – it has been to advocate for the Court itself. As public affairs officer, it was Dr. Jarvis' job to put the best face on the near-constant scandals and accusations of corruption that have plagued the ECCC. It is an understandable position, and one that is essential to ensuring that the Court continues to function. But it is fundamentally incompatible with the interests of victims, for whom a fair trial is paramount. As months worth of news stories have demonstrated, a fair trial and the continuation of business as usual at the ECCC cannot be reconciled with one another.
The real concern, however, should not be Dr. Jarvis’ personal qualifications to lead the VU, nor any allegations of ties to the Cambodian government, unless and until these can be substantiated. Rather, it is the sheer callousness of the decision to appoint her in this manner. While it has not been proven that the VU’s leadership changed hands due to political pressure, it certainly seems that way. And in many respects, the continuing impression that the ECCC operates on political expediency, rather than the rule of law, is more damaging to the trials than a full disclosure of any alleged corruption could ever be.
The choice of Dr. Jarvis for this position is curious for several reasons. First, it seems inconsistent with the spirit, if not the letter of the ECCC law, which holds that Cambodians should comprise the majority at every level of this hybrid institution. This same principle was applied in the previous structuring of the VU. Ms. Bophal was appointed as head of the Victims Unit in February 2008. Despite the fact that the ECCC had been operational for over a year at that point, and that the Victims Unit had been up and running for nearly four months, much of the implementation of the Unit’s mandate was delayed until a Cambodian was named as the director. Such was the importance rightly attached to ensuring that the victims of the Khmer Rouge be represented by one of their own. Alas, the importance of this symbolism seems to have waned in comparison with the Court's need to control the corruption story.
Secondly, Dr. Jarvis herself has been intimately involved with the corruption investigations for nearly a year now. Her appointment, coming so quickly on the heels of a civil party motion that criticized her own ethics investigation, cannot help but be tainted, even if no conflict of interests actually exists. Even if no overt pressure is henceforth placed upon civil party lawyers, the optics of this situation are all wrong, as a former Public Affairs Officer should surely know.
The culture of intimidation at the Court has not improved since Dr. Jarvis’ appointment. Just a few days ago, on May 26, the Post reported that a Cambodian government official ominously warned journalists to "be more professional" in their reporting about the Court, warning that critical reporting of the tribunal "could cause justice to escape the Cambodian people.” The minister, Pen Samitthy, coyly declined to say that such reporting might cause the UN to pull out of the ECCC. However, the words he chose apply with equal force to concerns about the recent changes at the Victims Unit.
"We have the saying," he told journalists last week, "if there is smoke, there is fire."
