Investigate the Khmer Rouge Tribunal

It's important to know why a U.N. official undermined the inquiries and turned the tribunal into a sham.

NOVEMBER 17, 2011

By JOHN A. HALL

The Wall Street Journal

Did Mr. Blunk's own organization, the U.N., conclude that attempting to broaden the number of defendants would jeopardize the ability of the tribunal to complete the trials of those already in custody?

The scandal-plagued and U.N.-backed Khmer Rouge Tribunal is finally on the brink of beginning the trials of four elderly senior members of the regime responsible for the deaths of an estimated 1.8 million Cambodians from 1975-79. Unfortunately, the credibility of the tribunal has been rocked by the serious judicial misconduct of the two co-investigating judges, German Siegfried Blunk, and Cambodian You Bunleng. An independent investigation is now desperately needed to restore confidence in the legitimacy of the legal process.

Messrs. Blunk and You had responsibility to investigate five additional suspects accused by the international prosecutor of mass murder and serious crimes against humanity. It is hard to imagine a remit more serious for any judge. Yet they persistently undermined the investigative process.

The two judges closed down the investigations prematurely without having summoned, charged or questioned the suspects; without meeting with key witnesses; and without having conducted significant field inquiries. Their Cambodian staff reportedly stuffed paper into the case files just to give the illusion that investigations had taken place. In short, they presided over an egregious violation of their legal and judicial duties in violation of U.N. standards and international legal norms.

Indictments Hint at Tribunal Independence: Scholar

By Men Kimseng, VOA Khmer
Original report from Washington
09 September 2009

An American professor who has been following and writing crucial articles about the UN-backed Khmer Rouge tribunal on Monday offered a cautious congratulations to the court’s latest development which could lead to more prosecutions of the regime’s senior leaders.

John Hall, a law professor at Chapman University School of Law, said in a letter to VOA Khmer that “by deciding to open the door to additional prosecutions, the tribunal has proclaimed its determination to remain above political manipulation.”

Hall was referring to a decision by the Pre-Trial Chamber last week to move five more indictments to the investigating judges, following the recommendation of the international prosecutor’s office and against the judgment of the Cambodian prosecutor.

Prime Minister Hun Sen has warned that further indictments could lead to instability or war, fears echoed by Cambodian officials and judges. (Three Cambodian Pre-Trial judges decided against moving the indictments forward, but with two international judges in favor of the move, the chamber did not reach the super-majority necessary to kill the prosecution’s submissions to investigating judges.)

“The apparent willingness of the tribunal to move forward with additional prosecutions suggests that the international judges at least are unwilling to allow Hun Sen to influence the legal proceedings with alarmist threats of impending civil war,” Hall wrote.

The concern of instability has little basis in the reality of contemporary Cambodia, Hall said, calling the split decision “particularly worrying, because the argument against additional prosecutions—a vague and less unconvincing threat of civil war from the prime minister—is clearly not a legal argument adequate for the court to reject additional indictments, such as an insufficiency of evidence.”

Now, Hall said, a worry lingers over whether Cambodian officials will cooperate with the court if the indictments move even further through the process.

“How will the Cambodian government respond if indictments are brought against former senior Khmer Rouge who are currently active supporters of Hun Sen and the CPP?” he asked, referring to the ruling party. “Will the prime minister then use the excuse of national stability to pull the plug on the hybrid tribunal, perhaps proceeding with a purely domestic trial only of the current five defendants?”

The tribunal is currently trying Kaing Kek Iev, the former prison chief known as Duch, and is holding Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, four of the senior-most leaders.

At least one former Khmer Rouge commander, Meas Muth, a probable suspect for indictment who serves an advisory role to the Ministry of Defense, has said he does not fear prosecution for his role in what he says was defense of the country from foreign invasion.

Some Remain Skeptical of Tribunal Corruption [resolution]

By Sok Khemara, VOA Khmer
Original report from Washington
02 March 2009

Amid heavy allegations of corruption that are risking further funding for the joint UN-Cambodia Khmer Rouge tribunal, officials have now established a mechanism to tackle future charges. But in the eyes of some US observers, this procedure remains ambiguous and inadequate.

The Extraordinary Chambers in the Courts of Cambodia have struggled under allegations that staff paid kickbacks to work at the tribunal, as well as mismanagement, in what worried observers claim could jeopardize justice for the victims of the Khmer Rouge.

It took two meetings between the UN’s assistant secretary-general for legal affairs, Peter Taksoe-Jensen, and Deputy Prime Minister Sok An, who is in charge of the tribunal, to establish two parallel complaints procedures—one international, one local—for handling further allegations. The UN and Cambodia will meet again before March 23 to finalize the agreement, officials said.

However, John Hall, an associate professor at Chapman University of Law, in Orange, Calif., said he was not encouraged by the new mechanism.

“The choice before the tribunal is quite clear: to proceed with the trials without adequately addressing the allegations of corruption and political influence risks tainting the entire process and casting a shadow over the trials,” he told VOA Khmer in a telephone interview. “The people of Cambodia deserve more; they deserve a court operating to international standards.”

Hall said it was “hard to say” say whether the new procedures would help the tribunal gain credibility.

“This may be the best that the UN is able to negotiate with the Cambodian government at this point, and donors will have to decide whether this new mechanism, however flawed, is adequate enough to justify greater funding,” Hall said. “I think the donors are eager for the tribunal to proceed, so will be looking for a justification to fund the trials. Should they, without a better complaints mechanism? Probably not.”

Although Cambodian officials at the Extraordinary Chambers have denied corruption exists and say the Cambodian side will not fall short on funding, donors have proven hesitant to forward money for a process perceived as flawed.

Hall made four suggestions for improving the tribunal’s credibility.

“First, limit opportunities for political interference in judicial decision-making, specifically, be open to the possibility of investigating additional suspects, not limit the number to the five defendants already named,” he said. “Second, create an independent investigation mechanism for accusations of wrongdoing. Third, ensure that human rights monitors, NGOs and reporters will be allowed to keep their whistleblower sources confidential. And fourth, ensure adequate whistleblower protections for those reporting wrongdoing.”

Only five aging leaders of the regime are so far in custody—Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith and Kaing Kev Iev—30 years after the fall of the regime.

Peter Maguire, author of "Facing Death in Cambodia," who has taught law and the theory of war, told VOA Khmer by telephone that the courts are operating under a shadow of doubt, thanks to a lack of transparency and basic budgetary accountability.

Meanwhile, continued delays could lead to the deaths of regime leaders before they go through trial, much like Slobodan Milosevic, the ex-Serbian leader who died in detention of a war crimes tribunal in 2006.

“If this court doesn’t move with a bit more urgency, they run the risk of becoming the Milosevic case No. 2,” Maguire said. “What good is procedural perfection if the defendants don’t live to see their trials? Perhaps that’s [Prime Minister] Hun Sen’s objective. Only time will tell.”

Mounting costs are hampering the credibility of the courts, along with unanswered questions over corruption, he said.

“Those in charge of the Khmer Rouge tribunal have already blown giant holes in their budget, yet expect the international community to keep writing checks,” Maguire said. “Releasing the UN’s report on corruption would be a good start [to gaining credibility], but it is already too late. Corruption, nepotism and graft are common in Cambodia. Why should the Khmer Rouge tribunal be any different?”

Tribunal spokesman Reach Sambath declined to comment on the corruption issue, referring questions to Phay Siphan, spokesman for the Council of Ministers, headed by Sok An.

“There have been four or five times for national and international inspection, but no evidence of corruption found,” Phay Siphan said. He also said the new procedures agreed on late last month will not impact the process of the courts, and he denied political interference in court proceedings.

The senior UN legal affairs official, Taksoe-Jensen, speaking by phone from New York following negotiations in Cambodia over corruption reporting, said there had been some misconception and criticism over the new mechanism, but he said the goal was to address corruption and keep the process moving forward.

The “bottom line,” he told VOA Khmer, was “to create a mechanism whereby all the members of the staff can put forward the complaint about corruption” without fear of retaliation from the court. “It’s up to the donors to decide when the situation has been established whereby funds can be sent to the court again.”

Cambodia and Thailand's Standoff Threatens Regional Stability

Aug 01, 2008
New America Media, Commentary
By John Hall and Sophal Ear

Editor's Note: A disputed 11th century temple that straddles the Thailand-Cambodia border has caused an armed stand-off between the two nations, with each side claiming the temple as its own. An intervention by international courts could perhaps stave off possible bloodshed.

In the dense jungles on the border between Thailand and Cambodia, thousands of troops are involved in a tense armed standoff. A long-simmering dispute over which nation has claim to a 900-year-old temple has in recent days become far more sinister. Thousands of Thai nationalists descended on the temple and a confrontation with Cambodian authorities quickly escalated. Cambodia claims that Thai troops have crossed the border. One Thai soldier has been seriously injured. There is a real danger, and unless cooler heads prevail a disaster could unfold that has serious implications for the stability of the region.

The temple in question, the 11th and 12th century Shiva-dedicated Preah Vihear, is widely considered one of the masterpieces of ancient Khmer architecture, sharing the Hindu-influenced style of the more famous Angkor complex. Unfortunately, the temple sits astride the border between Thailand and Cambodia, and both countries have claimed the site. Thai forces occupied the temple in 1954 when the French withdrew from Cambodia. In response, the newly independent Cambodia asked the International Court of Justice to rule that the temple was within Cambodian territory.

In a landmark ruling in 1962, the ICJ upheld Cambodia's claim to the temple and the land on which it sits. Former U.S. Secretary of State Dean Acheson represented Cambodia in the Hague, arguing that a 1907 survey map drawn by French officers established the border's precise location. That map, which had been supplied to Siamese authorities, showed the temple as being on the Cambodian side of the border. Thailand's legal team, which included former British attorney general Sir Frank Soskice, argued that the map was invalid, was not an official document of the border commission and did not reflect the understanding of the commission that the border should follow the watershed. Crucial in the ICJ's ruling in favor of Cambodia was the fact that Thailand had failed to object in international forums to the map's depiction of the border, despite ample opportunity to do so, and had benefited from other parts of the border treaty. Despite massive protests in Thailand, Cambodia took possession of the temple in 1963.

The 1962 ICJ ruling remains deeply unpopular in Thailand, and has been used as a trigger of crude nationalist and anti-Cambodian sentiment. The issue remains a hot-button political topic, and for many Thais, the temple is an embodiment of stolen Thai history and culture.

For Cambodians also, the Preah Vihear temple has a particular cultural resonance that fosters fervent nationalism. The temple symbolizes what is seen by Cambodians as the determination of their more prosperous and powerful Thai neighbors to claim as their own the greatest achievements of ancient Khmer culture. In addition, it was within this vicinity—the Dangrek Mountains— in 1979 that Thai soldiers forced thousands of Cambodian refugees back across the border into an area known to be infested with landmines and Khmer Rouge guerrillas. Hundreds – perhaps thousands – of the refugees died. Hundreds or thousands more were robbed and raped by Thai forces before being returned to Cambodia and their fate. It is a shameful episode largely unknown in Thailand, but vivid in the memory of Cambodians.

The spark that ignited the current confrontation was the recent decision by UNESCO's World Heritage Committee to formally recognize Preah Vihear as a World Heritage site — only the third such designation for Cambodia, after the Angkor temples and traditional Khmer dance. Cambodia has submitted an application for Preah Vihear, including surrounding land, perennially since at least 2001, but had thus far been thwarted by Thailand. In 2008, this time with the support of the Thai government, Cambodia resubmitted for just the temple and not the surrounding, disputed land.

The reaction among Thai nationalists was angry and swift: Protesters swarmed to Preah Vihear, and on June 22, Cambodia closed the border. Thai protests at the border were spearheaded by anti-Thaksin opponents of embattled Prime Minister Samak Sudaravej. Accusations were made that Thai government support for Cambodia's World Heritage application for Preah Vihear was the result of cross-border bribery. The members of Samak's cabinet, his opponents claimed in the press and in court, had effectively sold Thailand's legitimate claim to this symbol of Thai culture for a pocket of Cambodian gold. After a legal challenge, the Thai foreign minister resigned three days after the World Heritage Committee approved Cambodia's application, and following a damning decision against him in the Thai Constitutional Court.

Following the committee's decision to support Cambodia's application recognizing Preah Vihear as a World Heritage site, thousands of Cambodians marched through the streets of Phnom Penh and attended an outdoor concert at Wat Phnom in the city center. For them, this was a moment of national pride in the international affirmation of the significance of Cambodia's cultural heritage. For many Cambodians, angered by what they perceive as the racist basis of Thai animosity, the decision also upheld Cambodia's rights while snubbing Thai claims.

Cambodian Prime Minister Hun Sen has issued public statements that have attempted to calm the potential fallout with Thailand, and that have urged "patience to protect the national interests and make peace with the Thais as good friend and neighboring country." Similarly, Deputy Prime Minister Sok An has affirmed that Cambodia-Thai relations will not be effected by the listing, and that Cambodia is not attempting to alter the demarcation of the border. Nevertheless, this is a regime that has on prior occasions whipped up anti-Thai sentiment in the streets for its own political purposes, resulting in the burning of the Thai Embassy and Thai businesses in January 2003. It is apparent that Hun Sen's ruling political party has benefited from the standoff: It won last Sunday's national election in a landslide, in part thanks to a wave of nationalism generated by pro-Hun Sen media that portrayed him as a defender of Cambodian rights at Preah Vihear.

In Thailand, anti-government nationalists are playing a dangerous and shameful game, and the government has pandered to popular sentiment by issuing inflammatory and bellicose anti-Cambodian statements of its own. What had been a domestic political crisis for Thailand has rapidly escalated into an international crisis. Thailand has thus far spurned Cambodia's request for regional and international mediation, arguing that it is too soon to involve outsiders. Cambodia, which had asked the U.N. Security Council to meet on July 28 in order to discuss the matter, has acquiesced by postponing a formal meeting in order to permit the foreign ministers of both countries to meet instead that same day. That meeting in Siem Reap failed to resolve the standoff or the underlying dispute.

The danger is real and blood has been spilled — a Thai soldier lost a leg to a landmine. Thankfully, he is the only casualty to date. But with thousands of Thai and Cambodian troops amassing — each side claiming the other has violated their territory — and facing each other just a few feet apart with their weapons leveled, a tragedy is one breath away. An alcohol ban has been put in place in hopes of avoiding any acts of drunken aggression, but this is a disaster waiting to happen as nationalist passion grips the citizens of both nations. Cooler heads must prevail. If Thailand maintains that it has a legitimate legal claim to the territory in question, there are clear and well-travelled judicial mechanisms for asserting that claim. Indeed, resolving border disputes — amongst the most politically heated disputes between nations — is the bread and butter of international courts and mediation and arbitration panels. By ignoring those legal mechanisms and instead resorting to military confrontation, the Thai government risks being seen as purposefully undermining the rule of international law in order to pander to volatile domestic sentiment. This is an extraordinarily dangerous and self-serving gamble in a region with a history of political instability and military conflict.


John Hall is an associate professor at Chapman University School of Law in Orange, and a research fellow at the Center for Global Trade & Development. Sophal Ear is an assistant professor in the Department of National Security Affairs at the U.S. Naval Postgraduate School in Monterey, and a director for the Om Radsady Memorial Fund for Cambodian Democracy.

The views expressed are those of the authors and do not necessarily represent the views of the Naval Postgraduate School, the Department of Defense, or the U.S. Government. This article appears courtesy of the Daily Journal Corp.