Showing posts with label Political interference in KRT. Show all posts
Showing posts with label Political interference in KRT. Show all posts
Wednesday, March 21, 2012
Wednesday, July 27, 2011
Monday, April 25, 2011
Echoes of the Killing Fields
How far can Cambodia’s Khmer Rouge tribunal go?
Thursday, 21 April 2011
Written by Simon Roughneen
Asia Sentinel
It has been over three decades since the nightly convoys of trucks that carried the emaciated, the half-dead and the terrified from S-21 jail in Phnom Penh to Choeung Ek, 17 kilometers away, came to a halt.
Thursday, 21 April 2011
Written by Simon Roughneen
Asia Sentinel
It has been over three decades since the nightly convoys of trucks that carried the emaciated, the half-dead and the terrified from S-21 jail in Phnom Penh to Choeung Ek, 17 kilometers away, came to a halt. Whether or not the blindfolded and shackled men, women and children knew in advance of their fate is unclear. Some surely did, but all were murdered in this flood-prone former orchard, mostly by a blow to the back of the neck with an iron bar, followed by a knife across the throat.
The dead and dying were piled in the freshly dug pits, as a generator ran in the background to drown out any screams.
Now, a Buddhist stupa dominates the Killing Fields, stacked with thousands of human skulls dug up from the ground around it, where some 17000 people were murdered. Most of the skulls are behind glass, but some, lower-down, can be touched. Visitors light incense and candles and wait their turn to photograph this gruesome memento of Cambodia's greatest tragedy.
While this grim memorial keeps the horrible memory of the Khmer Rouge alive and gathers a steady stream of several hundred visitors a day, the effort to find justice for the victims of Pol Pot and his ultra-left movement remains slow. So far, only one man, the commander of S-21, also known as Tuol Sleng, has been convicted in the UN-backed tribunal that is underway.
While Japan largely pays for the proceedings, both the government in Phnom Penh and its allies in Beijing are wary of going too far. The wounds in the society remain deep and the potential for political embarrassment is great.
Thursday, July 22, 2010
Unchecked political interference will undermine ECCC legacy
Thursday, July 22, 2010
Letter to The Cambodia Daily
Letter to The Cambodia Daily
Unchecked political interference will undermine ECCC legacy
The Cambodia Daily recently reported on the Open Society Justice Initiative report (the “OSJI Report”) that concluded that political interference in the work of the Extraordinary Chambers in the Courts of Cambodia (the “ECCC”) is damaging its legitimacy (“‘Corrosive’ Political Interference at KRT, Group Says,” July 7, 2010). Subsequently, Ms. Della Sentilles of the Documentation Center of Cambodia expressed frustration that the OSJI Report, and others like it, base their evaluations on “speculative examples and on Cambodia’s stunted past” (“OSJI Report Lacks Evidence, Perspective on Khmer Rouge Tribunal,” July 8, 2010). The Cambodian Center for Human Rights supports the OSJI Report, particularly the acknowledgement that political interference is undermining “hope that the ECCC could serve as a model of justice for the domestic courts in Cambodia.”
It is artificial to disregard the history of political interference in the Cambodian judiciary as irrelevant to the ECCC. This history – and current practice – reveals a deeply ingrained political culture that fails to respect the constitutional guarantee of a separation of powers. For example, in the recent highly politicized defamation proceedings against parliamentarian Mu Sochua, the presiding judge at the Supreme Court hearing was Khim Pon, a member of the Central Committee of the Cambodian People’s Party (the “CPP”). The President of the Supreme Court, although he did not preside in the hearing, is Dith Munty, a member of the CPP Standing and Permanent Committees. Indeed, it is concerning to note that two of the adjudicating judges at the hearing of Mu Sochua's Supreme Court appeal –You Ottara and Som Sereyvuth – are a reserve judge for the ECCC Trial Chamber and a judge at the ECCC Supreme Court Chamber, respectively. It is unrealistic to expect judges and other court officials that have participated in a hierarchical system of political patronage to suddenly become immune from high-level political pressure.
Ms. Sentilles argues that regardless of reported political interference at the ECCC, the inclusion of provisions to resolve disagreements and the ‘Super Majority’ safeguard in the ECCC’s internal rules, developed in anticipation of such interference, have “minimized” its effects. However, it is not clear that the ultimate effects of the reported political interference will be minimal. For example, if defence teams are prevented from placing all relevant evidence before the Trial Chamber, particularly the potentially exculpatory testimony that could be provided by witnesses who remain in positions of power, the trial process cannot be considered to have met international fair trial standards. Or, if cases 003 and 004 do advance to trial, the majority of Cambodian judges in all chambers at the ECCC could prevent any politically unpalatable convictions. We need to be speculative to highlight why political interference could be a problem so that remedial action can be taken to address it. If the accused are convicted on the basis of an unfair trial in which potentially exculpatory evidence has been ignored for political reasons, and other suspects are not fully investigated and tried due to RGC pressure, it will be too late to do anything about it.
It is time to abandon the ‘free pass’ implied by comments referencing Cambodia’s troubled past. Political interference is not an issue of resources, capacity, or training. The failure of the United Nations and international staff at the ECCC to take a stronger stand and speak out about political interference is undermining the ECCC’s demonstration effect and its ability to leave a positive legacy for the wider Cambodian justice system. The importance of the ECCC’s mandate for national reconciliation and the potential of the court to contribute to understandings of justice in Cambodia are too great to deflect criticism of its independence with Ms. Sentilles’ caveat that the ECCC is “in large part an experiment in international law.” Ms. Sentilles argues that linking political interference at the ECCC to “rampant” interference in the domestic judiciary risks undermining the public legitimacy of the court. On the contrary, I would suggest that the biggest threats to the legitimacy of the ECCC are political interference and the failure of the international community to speak out against it.
Ou Virak
President, Cambodian Center for Human Rights
It is artificial to disregard the history of political interference in the Cambodian judiciary as irrelevant to the ECCC. This history – and current practice – reveals a deeply ingrained political culture that fails to respect the constitutional guarantee of a separation of powers. For example, in the recent highly politicized defamation proceedings against parliamentarian Mu Sochua, the presiding judge at the Supreme Court hearing was Khim Pon, a member of the Central Committee of the Cambodian People’s Party (the “CPP”). The President of the Supreme Court, although he did not preside in the hearing, is Dith Munty, a member of the CPP Standing and Permanent Committees. Indeed, it is concerning to note that two of the adjudicating judges at the hearing of Mu Sochua's Supreme Court appeal –You Ottara and Som Sereyvuth – are a reserve judge for the ECCC Trial Chamber and a judge at the ECCC Supreme Court Chamber, respectively. It is unrealistic to expect judges and other court officials that have participated in a hierarchical system of political patronage to suddenly become immune from high-level political pressure.
Ms. Sentilles argues that regardless of reported political interference at the ECCC, the inclusion of provisions to resolve disagreements and the ‘Super Majority’ safeguard in the ECCC’s internal rules, developed in anticipation of such interference, have “minimized” its effects. However, it is not clear that the ultimate effects of the reported political interference will be minimal. For example, if defence teams are prevented from placing all relevant evidence before the Trial Chamber, particularly the potentially exculpatory testimony that could be provided by witnesses who remain in positions of power, the trial process cannot be considered to have met international fair trial standards. Or, if cases 003 and 004 do advance to trial, the majority of Cambodian judges in all chambers at the ECCC could prevent any politically unpalatable convictions. We need to be speculative to highlight why political interference could be a problem so that remedial action can be taken to address it. If the accused are convicted on the basis of an unfair trial in which potentially exculpatory evidence has been ignored for political reasons, and other suspects are not fully investigated and tried due to RGC pressure, it will be too late to do anything about it.
It is time to abandon the ‘free pass’ implied by comments referencing Cambodia’s troubled past. Political interference is not an issue of resources, capacity, or training. The failure of the United Nations and international staff at the ECCC to take a stronger stand and speak out about political interference is undermining the ECCC’s demonstration effect and its ability to leave a positive legacy for the wider Cambodian justice system. The importance of the ECCC’s mandate for national reconciliation and the potential of the court to contribute to understandings of justice in Cambodia are too great to deflect criticism of its independence with Ms. Sentilles’ caveat that the ECCC is “in large part an experiment in international law.” Ms. Sentilles argues that linking political interference at the ECCC to “rampant” interference in the domestic judiciary risks undermining the public legitimacy of the court. On the contrary, I would suggest that the biggest threats to the legitimacy of the ECCC are political interference and the failure of the international community to speak out against it.
Ou Virak
President, Cambodian Center for Human Rights
Friday, March 26, 2010
UN Should Create Top Post to Aid Khmer Rouge Tribunal: OSJI
Source: Open Society Justice Initiative
Corruption and Budget Questions Demand Donor, UN Attention
Press Release
Date: March 24, 2010
Contact: Rachel Aicher
raicher@sorosny.org
1-212-548-0135 (w) / 1-917-294-2641 (m)
Corruption and Budget Questions Demand Donor, UN Attention
Press Release
Date: March 24, 2010
Contact: Rachel Aicher
raicher@sorosny.org
1-212-548-0135 (w) / 1-917-294-2641 (m)
New York—Political interference, corruption, and funding shortfalls may cripple the Khmer Rouge Tribunal, states a report released today by the Open Society Justice Initiative. The organization calls for increased engagement from the United Nations and donor countries.
"The court has made substantial progress to date, but its future is uncertain," said Open Society Justice Initiative Executive Director James A. Goldston. "Appointing a permanent senior advisor at the UN assistant secretary-general level would provide critical leadership and oversight to help the court achieve its mission."
The report criticizes ongoing political interference with the judicial process, notes weaknesses in existing mechanisms to curb corruption, and calls attention to impending budget shortfalls. It recommends that senior officials of the Court, the UN, and the Cambodian government publicly reaffirm the importance of judicial independence, establish effective whistleblower and witness protection measures, and require periodic public progress reports from the independent counselor in charge of corruption complaints. It also calls on the US and the EU to increase funding.
"A court with secure and adequate funding is in a much stronger position to operate with independence and integrity," said Goldston. "Donors need to ensure that the tribunal has the funding it needs, while also maintaining pressure on the government of Cambodia to let justice run its course."
The court is currently seeking donor contributions to meet budget demands for 2010 and 2011. With Japan planning to decrease its funding levels, other countries will need to bridge the gap in order to cover basic operating costs, as well as to improve outreach programs and bolster anticorruption mechanisms.
Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: March 2010 is the latest in a series of regular Justice Initiative publications offering news, analysis, and recommendations on the tribunal.
"The court has made substantial progress to date, but its future is uncertain," said Open Society Justice Initiative Executive Director James A. Goldston. "Appointing a permanent senior advisor at the UN assistant secretary-general level would provide critical leadership and oversight to help the court achieve its mission."
The report criticizes ongoing political interference with the judicial process, notes weaknesses in existing mechanisms to curb corruption, and calls attention to impending budget shortfalls. It recommends that senior officials of the Court, the UN, and the Cambodian government publicly reaffirm the importance of judicial independence, establish effective whistleblower and witness protection measures, and require periodic public progress reports from the independent counselor in charge of corruption complaints. It also calls on the US and the EU to increase funding.
"A court with secure and adequate funding is in a much stronger position to operate with independence and integrity," said Goldston. "Donors need to ensure that the tribunal has the funding it needs, while also maintaining pressure on the government of Cambodia to let justice run its course."
The court is currently seeking donor contributions to meet budget demands for 2010 and 2011. With Japan planning to decrease its funding levels, other countries will need to bridge the gap in order to cover basic operating costs, as well as to improve outreach programs and bolster anticorruption mechanisms.
Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: March 2010 is the latest in a series of regular Justice Initiative publications offering news, analysis, and recommendations on the tribunal.
Sunday, August 09, 2009
Sometimes, grand prosecutions of war crimes don’t make sense
August 9, 2009
By Joshua Kurlantzick
The Boston Globe (Massachusetts, USA)
THIS PAST WINTER, in a makeshift courthouse on the dusty outskirts of Phnom Penh, the nation of Cambodia began a long-awaited step toward reckoning with its horrifying past. With the help of the United Nations, the country is putting on trial senior leaders from the Khmer Rouge regime, whose reign of terror killed as much as one-quarter of the country’s population between 1975 and 1979.
The process evokes the Nuremberg trials after World War II and other high-profile tribunals held since then: a way to bring past leaders to account for their crimes, to force the country to examine its terrible past, and - in theory - to bring some degree of justice and allow for healing.
The stakes for Cambodia are high. The Khmer Rouge era left a legacy of trauma and violence, and the country’s culture and society remain in tatters. The tribunal will cost up to as much as $200 million from international donors - a steep price when weighed against the needs of a desperately poor nation.
But there is good reason to believe the tribunal will fail in its aims. Held 30 years after the fall of the regime, the trial focuses on only five leaders - Khmer Rouge head Pol Pot died a decade ago - leaving thousands of former Khmer Rouge officials living undisturbed in Cambodian society. And though it may reveal important information about the country’s past, virtually no one in Cambodia will have access to its findings. Although it is too soon to know how it will turn out, the troubles faced by the Khmer Rouge tribunal offer a chastening example of why Nuremberg-style tribunals - despite their successes elsewhere - may be wrong for many of the developing countries that most need to find a way to grapple with their pasts.
Finding a model for handling war crimes in the developing world will be critically important as more countries emerge from violence and grope toward stability. In Africa, Southeast Asia, and parts of the Middle East, many nations remain trapped in brutal conflicts, or struggling with the legacy of war - a legacy that continues, in many places, to cause unrest well outside the country’s borders. One promising approach may be small-scale, village-level reconciliation programs, which work within the country’s social structures rather than creating an expensive Western-style process. They may lack the gravitas of a high-profile trial, but might do far more to move troubled countries out of the past - and to do it on their own terms.
In theory, a tribunal for war crimes or genocide can have a significant impact in a postwar society. After Nuremberg, the best-known model is South Africa’s Truth and Reconciliation Commission. From 1996-98, the commission held open hearings that, to some extent, resembled courtroom trials. Both victims and perpetrators of apartheid-era violence came forward and told their stories; the hearings were shown on national television. The commission opened the apartheid-era archives of political crime to the public, and made it easier for the country to move on: Afrikaaner hardliners could no longer argue that the apartheid era was a time of peace and prosperity; and justifiably angered black South Africans could be mollified by the public admission of violence. One comprehensive study of the commission, published in 2004 in the Journal of Black Studies, found that, overall, both whites and blacks saw the commissions as effective at revealing the truth.
In that sense, the commission was similar to Nuremberg, which not only meted out punishment but also exposed the Nazis’ crimes, making it harder for anyone to deny them in the future, and thereby enabling a stable new Germany. The Hague tribunal of war crimes suspects from the Balkan wars has also been touted as a success - it promoted reconciliation after the bloodshed, allowing nations destroyed by ethnic divides to begin healing.
But in developing nations, these theories break down. It can be critical for tribunals to work quickly, before evidence is lost, memories fade, and the suspects grow too old to stand trial. In Cambodia, as in many other poor countries, such immediacy may simply be impossible. After the fall of the Khmer Rouge in 1979, its armies decamped to the Thai border and remained there for more than a decade, and not until the mid-2000s did Cambodian authorities finally arrest top Khmer Rouge leaders. By now, the senior Khmer Rouge leaders are so old they could die before the tribunal finishes, as did Slobodan Milosevic, who died in custody facing trial for crimes during the Balkan wars.
In developing nations, tribunals are also far more likely to fail in their mission of publicly disseminating difficult truths about the country. In Cambodia, only a small percentage of people actually can follow the proceedings, which get little coverage on national television. A similar problem is unfolding in the trial of Charles Taylor, the despotic former president of Liberia: the court trying him maintains a comprehensive website of documents which is nearly useless to Liberians, whose country has one of the lowest levels of Internet penetration in the world. In both cases, the entire trial could unfold nearly out of view of the nation that most needs to see it.
Tribunals can also be warped by the sitting government in its own interests. The current Cambodian prime minister, himself a former Khmer Rouge official, once said the country should just “dig a hole and bury the past.” Little wonder then, that when the foreign co-prosecutor of the Khmer Rouge tribunal suggested expanding its mandate to prosecute a wider number of suspects, his Cambodian peer nixed the idea. “[Prime Minister] Hun Sen has no role in this court, yet he keeps trying to use his hold over its Cambodian personnel to interfere,” Brad Adams, Asia director for Human Rights Watch, told reporters.
A similar problem looms in Zimbabwe, a nation with a violent history that would seem a promising candidate for a tribunal. There, though the longtime opposition Movement for Democratic Change now controls many levers of power, the old guard around president Robert Mugabe still wields enough influence to stop any real investigation of the abuses of Mugabe’s regime. In East Timor, now independent after a guerrilla war against Indonesia, the government launched a high-profile Commission on Truth and Friendship, but in the interest of preserving good relations with its powerful neighbor, generated a watered-down investigation of the Indonesian military’s alleged mass killings and other crimes. The result left the Timorese population frustrated, and the Indonesian military still operating in a climate of impunity.
It’s hard to see how a tribunal that does not reach most of the public, comes late, and is compromised by the sympathies of regimes in power could do the difficult job of justice and healing. Such trials also consume significant resources, often due to the expense of making cases and finding evidence after civil wars. The Khmer Rouge trial will cost upward of $200 million. Helena Cobban, a longtime journalist who has studied postwar justice, estimates that the tribunal in Sierra Leone, launched in 2002 to prosecute crimes against humanity committed during the country’s civil war in the late 1990s, has spent over $40 million per case. Those sums are huge anywhere, but are almost unconscionable when dealing with countries with so many social needs, and where donors, having already given to tribunals, might be wary of handing over cash for other needs.
The purpose of these tribunals is admirable. But rather than follow the example that worked in Western countries, poor nations might be wiser to invest in local-level reconciliation programs.
A promising example has unfolded in Rwanda, which disintegrated into civil war and genocide in the early 1990s. There, the government has instituted a program called gacaca, essentially a series of village-level community courts in which former victims can confront alleged perpetrators of the 1994 genocide. In the gacaca courts, the accused tell their stories and, often, ask for forgiveness. After hearing the confessions, the community court often sentences them to punishment, which often involves making restitution on a local level.
Gacaca has demonstrated several advantages. By operating on a local level, it brings the healing process to the whole country, without having to rely upon citizens following a single high-profile tribunal on television or radio. Using community leaders as a kind of judge, it has proven far cheaper, and much faster, than a tribunal, particularly one held in the West. The gacaca courts have reportedly already heard more than 1 million cases. By operating at a local level, too, the gacaca courts can, to some extent, avoid the influence of the central government.
The Rwandan process is not without flaws. Local retribution against the guilty has occurred, violently in several cases. But on the whole it has been remarkably effective. And as Rwanda deals forthrightly with the legacy of its genocide, it has built one of the most vibrant economies in Africa, consistently posting among the highest annual growth rates on the continent.
In Cambodia, it is easy to see how such a process could help: In many villages former Khmer Rouge local leaders live alongside their victims, creating an atmosphere of hatred and a pattern of brutal retributive violence. Indeed, it’s on a local level, rather than nationally, where Cambodia needs to make peace. But the government has barely even tried this strategy - partly, perhaps, because its interests aren’t served by bringing large numbers of former Khmer Rouge to justice, and partly because international donors tend to prefer funding centralized, high profile tribunals.
Without this local-level process, however, Cambodia probably will never come to terms with its past. As the past century shows, reckoning with war history matters. But it’s how you reckon that may turn out to matter just as much.
Joshua Kurlantzick is a fellow at the Council on Foreign Relations, and can be reached at jkurlant1@hotmail.com.
The process evokes the Nuremberg trials after World War II and other high-profile tribunals held since then: a way to bring past leaders to account for their crimes, to force the country to examine its terrible past, and - in theory - to bring some degree of justice and allow for healing.
The stakes for Cambodia are high. The Khmer Rouge era left a legacy of trauma and violence, and the country’s culture and society remain in tatters. The tribunal will cost up to as much as $200 million from international donors - a steep price when weighed against the needs of a desperately poor nation.
But there is good reason to believe the tribunal will fail in its aims. Held 30 years after the fall of the regime, the trial focuses on only five leaders - Khmer Rouge head Pol Pot died a decade ago - leaving thousands of former Khmer Rouge officials living undisturbed in Cambodian society. And though it may reveal important information about the country’s past, virtually no one in Cambodia will have access to its findings. Although it is too soon to know how it will turn out, the troubles faced by the Khmer Rouge tribunal offer a chastening example of why Nuremberg-style tribunals - despite their successes elsewhere - may be wrong for many of the developing countries that most need to find a way to grapple with their pasts.
Finding a model for handling war crimes in the developing world will be critically important as more countries emerge from violence and grope toward stability. In Africa, Southeast Asia, and parts of the Middle East, many nations remain trapped in brutal conflicts, or struggling with the legacy of war - a legacy that continues, in many places, to cause unrest well outside the country’s borders. One promising approach may be small-scale, village-level reconciliation programs, which work within the country’s social structures rather than creating an expensive Western-style process. They may lack the gravitas of a high-profile trial, but might do far more to move troubled countries out of the past - and to do it on their own terms.
In theory, a tribunal for war crimes or genocide can have a significant impact in a postwar society. After Nuremberg, the best-known model is South Africa’s Truth and Reconciliation Commission. From 1996-98, the commission held open hearings that, to some extent, resembled courtroom trials. Both victims and perpetrators of apartheid-era violence came forward and told their stories; the hearings were shown on national television. The commission opened the apartheid-era archives of political crime to the public, and made it easier for the country to move on: Afrikaaner hardliners could no longer argue that the apartheid era was a time of peace and prosperity; and justifiably angered black South Africans could be mollified by the public admission of violence. One comprehensive study of the commission, published in 2004 in the Journal of Black Studies, found that, overall, both whites and blacks saw the commissions as effective at revealing the truth.
In that sense, the commission was similar to Nuremberg, which not only meted out punishment but also exposed the Nazis’ crimes, making it harder for anyone to deny them in the future, and thereby enabling a stable new Germany. The Hague tribunal of war crimes suspects from the Balkan wars has also been touted as a success - it promoted reconciliation after the bloodshed, allowing nations destroyed by ethnic divides to begin healing.
But in developing nations, these theories break down. It can be critical for tribunals to work quickly, before evidence is lost, memories fade, and the suspects grow too old to stand trial. In Cambodia, as in many other poor countries, such immediacy may simply be impossible. After the fall of the Khmer Rouge in 1979, its armies decamped to the Thai border and remained there for more than a decade, and not until the mid-2000s did Cambodian authorities finally arrest top Khmer Rouge leaders. By now, the senior Khmer Rouge leaders are so old they could die before the tribunal finishes, as did Slobodan Milosevic, who died in custody facing trial for crimes during the Balkan wars.
In developing nations, tribunals are also far more likely to fail in their mission of publicly disseminating difficult truths about the country. In Cambodia, only a small percentage of people actually can follow the proceedings, which get little coverage on national television. A similar problem is unfolding in the trial of Charles Taylor, the despotic former president of Liberia: the court trying him maintains a comprehensive website of documents which is nearly useless to Liberians, whose country has one of the lowest levels of Internet penetration in the world. In both cases, the entire trial could unfold nearly out of view of the nation that most needs to see it.
Tribunals can also be warped by the sitting government in its own interests. The current Cambodian prime minister, himself a former Khmer Rouge official, once said the country should just “dig a hole and bury the past.” Little wonder then, that when the foreign co-prosecutor of the Khmer Rouge tribunal suggested expanding its mandate to prosecute a wider number of suspects, his Cambodian peer nixed the idea. “[Prime Minister] Hun Sen has no role in this court, yet he keeps trying to use his hold over its Cambodian personnel to interfere,” Brad Adams, Asia director for Human Rights Watch, told reporters.
A similar problem looms in Zimbabwe, a nation with a violent history that would seem a promising candidate for a tribunal. There, though the longtime opposition Movement for Democratic Change now controls many levers of power, the old guard around president Robert Mugabe still wields enough influence to stop any real investigation of the abuses of Mugabe’s regime. In East Timor, now independent after a guerrilla war against Indonesia, the government launched a high-profile Commission on Truth and Friendship, but in the interest of preserving good relations with its powerful neighbor, generated a watered-down investigation of the Indonesian military’s alleged mass killings and other crimes. The result left the Timorese population frustrated, and the Indonesian military still operating in a climate of impunity.
It’s hard to see how a tribunal that does not reach most of the public, comes late, and is compromised by the sympathies of regimes in power could do the difficult job of justice and healing. Such trials also consume significant resources, often due to the expense of making cases and finding evidence after civil wars. The Khmer Rouge trial will cost upward of $200 million. Helena Cobban, a longtime journalist who has studied postwar justice, estimates that the tribunal in Sierra Leone, launched in 2002 to prosecute crimes against humanity committed during the country’s civil war in the late 1990s, has spent over $40 million per case. Those sums are huge anywhere, but are almost unconscionable when dealing with countries with so many social needs, and where donors, having already given to tribunals, might be wary of handing over cash for other needs.
The purpose of these tribunals is admirable. But rather than follow the example that worked in Western countries, poor nations might be wiser to invest in local-level reconciliation programs.
A promising example has unfolded in Rwanda, which disintegrated into civil war and genocide in the early 1990s. There, the government has instituted a program called gacaca, essentially a series of village-level community courts in which former victims can confront alleged perpetrators of the 1994 genocide. In the gacaca courts, the accused tell their stories and, often, ask for forgiveness. After hearing the confessions, the community court often sentences them to punishment, which often involves making restitution on a local level.
Gacaca has demonstrated several advantages. By operating on a local level, it brings the healing process to the whole country, without having to rely upon citizens following a single high-profile tribunal on television or radio. Using community leaders as a kind of judge, it has proven far cheaper, and much faster, than a tribunal, particularly one held in the West. The gacaca courts have reportedly already heard more than 1 million cases. By operating at a local level, too, the gacaca courts can, to some extent, avoid the influence of the central government.
The Rwandan process is not without flaws. Local retribution against the guilty has occurred, violently in several cases. But on the whole it has been remarkably effective. And as Rwanda deals forthrightly with the legacy of its genocide, it has built one of the most vibrant economies in Africa, consistently posting among the highest annual growth rates on the continent.
In Cambodia, it is easy to see how such a process could help: In many villages former Khmer Rouge local leaders live alongside their victims, creating an atmosphere of hatred and a pattern of brutal retributive violence. Indeed, it’s on a local level, rather than nationally, where Cambodia needs to make peace. But the government has barely even tried this strategy - partly, perhaps, because its interests aren’t served by bringing large numbers of former Khmer Rouge to justice, and partly because international donors tend to prefer funding centralized, high profile tribunals.
Without this local-level process, however, Cambodia probably will never come to terms with its past. As the past century shows, reckoning with war history matters. But it’s how you reckon that may turn out to matter just as much.
Joshua Kurlantzick is a fellow at the Council on Foreign Relations, and can be reached at jkurlant1@hotmail.com.
Thursday, June 25, 2009
Sacrava's Political Cartoon: Robert Petit
Cartoon by Sacrava (on the web at http://sacrava.blogspot.com)Khmer Rouge judge sees failures
Thursday, 25 June 2009
By Guy DeLauney
BBC News, Phnom Penh
By Guy DeLauney
BBC News, Phnom Penh
The international prosecutor at the Khmer Rouge tribunal has warned that the process is failing to make a connection with the Cambodian people.
Robert Petit said he was also concerned about political interference at the special courts.
The Canadian official has just announced his resignation after three years of leading the prosecution of former Khmer Rouge leaders.
He said his resignation was not connected to problems at the tribunal.
But at a news conference to announce his impending departure he outlined his concerns about several key areas at the special courts.
Failures
The first trial of a former Khmer Rouge leader started three months ago.
But Mr Petit said that a lack of funding for outreach work had limited its impact on the public.
The prosecutor said he was also worried about the role of the Cambodian government.
Prime minister Hun Sen has been critical of proposals to investigate more former Khmer Rouge leaders.
But Mr Petit says that shouldn't be a decision for politicians.
"It's a very bad sign for Cambodia if any elected official thinks they have the right to influence any court process," he said.
"By continuing - us, the court - to do our job, according to the evidence of the law, hopefully we can provide a counter-weight to that," he said.
Mr Petit is the third member of the international prosecution team to resign this year.
But he says his departure should have no impact on the progress of the trials as his colleagues have already taken over much of his work.
Robert Petit said he was also concerned about political interference at the special courts.
The Canadian official has just announced his resignation after three years of leading the prosecution of former Khmer Rouge leaders.
He said his resignation was not connected to problems at the tribunal.
But at a news conference to announce his impending departure he outlined his concerns about several key areas at the special courts.
Failures
"It's a very bad sign for Cambodia if any elected official thinks they have the right to influence any court process" - Robert Petit, Khmer Rouge TribunalMr Petit said the tribunal had failed to explain itself to its most important audience - the Cambodian people.
The first trial of a former Khmer Rouge leader started three months ago.
But Mr Petit said that a lack of funding for outreach work had limited its impact on the public.
The prosecutor said he was also worried about the role of the Cambodian government.
Prime minister Hun Sen has been critical of proposals to investigate more former Khmer Rouge leaders.
But Mr Petit says that shouldn't be a decision for politicians.
"It's a very bad sign for Cambodia if any elected official thinks they have the right to influence any court process," he said.
"By continuing - us, the court - to do our job, according to the evidence of the law, hopefully we can provide a counter-weight to that," he said.
Mr Petit is the third member of the international prosecution team to resign this year.
But he says his departure should have no impact on the progress of the trials as his colleagues have already taken over much of his work.
Canadian under fire for quitting Cambodian tribunal
Prosecutor of Khmer Rouge picked a bad time to leave controversial court, critics say
Wednesday, Jun. 24, 2009
Mark MacKinnon
Globe and Mail (Toronto, Canada)
Beijing
The Canadian prosecutor who resigned this week from the tribunal charged with bringing members of Cambodia's vicious Khmer Rouge regime to justice dismissed speculation that he is quitting over how the tribunal is being run, and said he is stepping down purely for personal reasons.
“It's a completely personal issue,” Robert Petit said in an interview. “It just so happens that events in Canada made it so I had to return.”
But Mr. Petit, who had become the stern face of the international effort to bring the perpetrators of the killing fields to justice, was nonetheless hit by a storm of criticism both inside and outside Cambodia for leaving at such a sensitive juncture. The tribunal, which is seeking to prosecute former Khmer Rouge leaders for their role in the deaths of 1.7 million people between 1975 and 1979, is behind schedule, over budget and plagued by infighting between its international and Cambodian staff.
“It is disturbing to hear that the international co-prosecutor is leaving in the midst of the initial trial of the [tribunal], at a time when it is critical for the office to establish its leadership role in the trial and the court,” said Heather Ryan of the Open Society Justice Initiative.
Elena Lesley, who is covering the tribunal for the Phnom Penh Post, wrote on her blog that “whatever Petit's reasons for resigning, his timing couldn't be worse.”
In a telephone interview, Mr. Petit would not discuss the nature of the personal issue that caused him to step down, but said he would not have otherwise resigned from what he called “the greatest professional opportunity I've ever had.”
He dismissed talk that his absence would hamper the tribunal, saying the case – and the number of staff involved – is too big for it to depend too heavily on the chief prosecutor.
Mr. Petit, who previously served on international genocide tribunals in Rwanda and Sierra Leone, nonetheless expressed concern over allegations of corruption and mismanagement of the tribunal, saying there is too much at stake in Cambodia for the court to fail.
“The court is still underfunded and under-resourced for the tasks that it is supposed to accomplish,” he said. “Obviously, allegations such as the corruption and administration must be addressed and put to rest finally.”
An estimated 1.7 million Cambodians died from execution, torture, overwork or manmade famine during a bloody Khmer Rouge campaign to create a classless, agrarian society. For almost three decades afterward, many of the perpetrators of that genocide were allowed to live peaceful lives among the population they once terrorized. Many died without ever being called to account.
That changed in 2006 with the formation of the Extraordinary Chambers in the Courts of Cambodia, a hybrid court made up of five Cambodian and four international judges. Earlier this year, proceedings began against the first defendant, 66-year-old Kaing Guek Eav, known as Duch, who allegedly oversaw the torture and execution of 15,000 people while running the Tuol Sleng prison in Phnom Penh.
But the tribunal has been dogged since its formation by accusations of corruption and mismanagement, as well as a split between the international staff – led by Mr. Petit – and their Cambodian colleagues. The internationals wanted to expand the tribunal's reach in order to indict more people as evidence came to light, while the top Cambodian prosecutor has argued to focus on only the five Khmer Rouge members currently behind bars.
Mr. Petit, who will step down on Sept. 1 and return to a job at the Department of Justice in Ottawa, said he would use his remaining time in Cambodia to ensure that as many suspected war criminals as possible are brought before the tribunal. He said doing so is key to Cambodia understanding its horrific past and getting beyond it.
“There hasn't been any kind of accountability yet for what happened 30 years ago. Hopefully, this is only the beginning of a greater accountability process that will help people understand what happened.”
Wednesday, Jun. 24, 2009
Mark MacKinnon
Globe and Mail (Toronto, Canada)
Beijing
The Canadian prosecutor who resigned this week from the tribunal charged with bringing members of Cambodia's vicious Khmer Rouge regime to justice dismissed speculation that he is quitting over how the tribunal is being run, and said he is stepping down purely for personal reasons.
“It's a completely personal issue,” Robert Petit said in an interview. “It just so happens that events in Canada made it so I had to return.”
But Mr. Petit, who had become the stern face of the international effort to bring the perpetrators of the killing fields to justice, was nonetheless hit by a storm of criticism both inside and outside Cambodia for leaving at such a sensitive juncture. The tribunal, which is seeking to prosecute former Khmer Rouge leaders for their role in the deaths of 1.7 million people between 1975 and 1979, is behind schedule, over budget and plagued by infighting between its international and Cambodian staff.
“It is disturbing to hear that the international co-prosecutor is leaving in the midst of the initial trial of the [tribunal], at a time when it is critical for the office to establish its leadership role in the trial and the court,” said Heather Ryan of the Open Society Justice Initiative.
Elena Lesley, who is covering the tribunal for the Phnom Penh Post, wrote on her blog that “whatever Petit's reasons for resigning, his timing couldn't be worse.”
In a telephone interview, Mr. Petit would not discuss the nature of the personal issue that caused him to step down, but said he would not have otherwise resigned from what he called “the greatest professional opportunity I've ever had.”
He dismissed talk that his absence would hamper the tribunal, saying the case – and the number of staff involved – is too big for it to depend too heavily on the chief prosecutor.
Mr. Petit, who previously served on international genocide tribunals in Rwanda and Sierra Leone, nonetheless expressed concern over allegations of corruption and mismanagement of the tribunal, saying there is too much at stake in Cambodia for the court to fail.
“The court is still underfunded and under-resourced for the tasks that it is supposed to accomplish,” he said. “Obviously, allegations such as the corruption and administration must be addressed and put to rest finally.”
An estimated 1.7 million Cambodians died from execution, torture, overwork or manmade famine during a bloody Khmer Rouge campaign to create a classless, agrarian society. For almost three decades afterward, many of the perpetrators of that genocide were allowed to live peaceful lives among the population they once terrorized. Many died without ever being called to account.
That changed in 2006 with the formation of the Extraordinary Chambers in the Courts of Cambodia, a hybrid court made up of five Cambodian and four international judges. Earlier this year, proceedings began against the first defendant, 66-year-old Kaing Guek Eav, known as Duch, who allegedly oversaw the torture and execution of 15,000 people while running the Tuol Sleng prison in Phnom Penh.
But the tribunal has been dogged since its formation by accusations of corruption and mismanagement, as well as a split between the international staff – led by Mr. Petit – and their Cambodian colleagues. The internationals wanted to expand the tribunal's reach in order to indict more people as evidence came to light, while the top Cambodian prosecutor has argued to focus on only the five Khmer Rouge members currently behind bars.
Mr. Petit, who will step down on Sept. 1 and return to a job at the Department of Justice in Ottawa, said he would use his remaining time in Cambodia to ensure that as many suspected war criminals as possible are brought before the tribunal. He said doing so is key to Cambodia understanding its horrific past and getting beyond it.
“There hasn't been any kind of accountability yet for what happened 30 years ago. Hopefully, this is only the beginning of a greater accountability process that will help people understand what happened.”
Prosecutor quits Killing Fields war crimes trial
International lawyer says Cambodian tribunal is vulnerable to corruption
Thursday, 25 June 2009
By Andrew Buncombe, Asia Correspondent
The Independent (UK)
An international prosecutor who has quit the Cambodian genocide trial has delivered a parting broadside, saying that the tribunal needs to guard against corruption, political meddling and a debilitating lack of funds.
Robert Petit, a Canadian lawyer whose decision to quit has shocked some members of the tribunal and raised questions about how effectively the process will continue, said that allegations of corruption levelled at the court have still not been properly answered. He said the court also lacked sufficient resources and staff to do the job it had been set.
"The court is still under-funded and under-resourced for the tasks that it is supposed to accomplish," said Mr Petit. "Obviously, allegations such as corruption and maladministration must be addressed and put to rest finally."
The court in Phnom Penh, the Cambodian capital, which took more than a decade to establish, has for several months been hearing evidence against Kaing Guek Eav, better known as Duch, the former head of Tuol Sleng jail, a notorious interrogation and torture centre where more than 14,000 people were sent on their way to The Killing Fields. Barely a dozen of them survived.
Four other senior members of the Khmer Rouge regime have also been charged and are waiting to go on trial. Between 1975 and 1979, the regime was responsible for the deaths of as many as 1.7 million people.
Mr Petit, who has previously served on international genocide tribunals in Rwanda and Sierra Leone, had long made clear his disagreement with some aspects of the tribunal's operation. Late last year he filed an official statement saying that he disagreed with his Cambodian co-prosecutor about extending the number of people to be charged. Just five former senior Khmer Rouge members have been charged, but Mr Petit believed there was a case to be made against a further half-dozen former members of the regime.
His co-prosecutor, Chea Leang, argued that putting more former regime members on trial wound destabilise the country. But there have been widespread rumours that she had been influenced by the Cambodian government, headed by the Prime Minister Hun Sen, who has long been opposed to the joint UN-Cambodian tribunal broadening its investigation. The Prime Minister is said to be concerned about drawing attention to former members of the Maoist-influenced regime who are now senior establishment figures. Mr Petit said yesterday that attempts to interfere with the running of the court were "very disturbing".
Yet the veteran prosecutor insisted that his resignation was for personal reasons rather than because of a disagreement over the way the court performs its duties. He said his decision to leave was the hardest of his professional career and one that had been taken in consultation with the UN over several months. Stressing that the decision had nothing to do with events in Cambodia but, "everything to do with events that have happened in Canada", he added: "They are entirely related to personal family matters, totally unrelated to my professional responsibilities at the court and, therefore, a fully private matter."
Mr Petit claimed that his departture from the prosecutor's bench would not unduly affect the process. He said the gathering of evidence, the legal analysis and the tatical decisions had all been a collective process taken by his office.
"When it became clear that [I] would have to leave, my deputy started preparing himself and is now leading the case and will do so until further notice," he added. Yet Mr Petit's decision to step down has triggered concerns among some observers. Heather Ryan, court monitor for the Open Society Justice Initiative, said that news of his departure was unwelcome. "It is disturbing to hear that the international co-prosecutor is leaving in the midst of the initial trial, at a time when it is critical for the office to establish its leadership role in the trial and the court," she said in a statement. "The sudden departure could delay resolution of pressing matters before the court."
The other alleged war criminals awaiting trial are Pol Pot's former second-in-command Nuon Chea, the former foreign minister Ieng Sary, the former social affairs minister Ieng Thirit and the former head of state Khieu Samphan.
Thursday, 25 June 2009
By Andrew Buncombe, Asia Correspondent
The Independent (UK)
An international prosecutor who has quit the Cambodian genocide trial has delivered a parting broadside, saying that the tribunal needs to guard against corruption, political meddling and a debilitating lack of funds.
Robert Petit, a Canadian lawyer whose decision to quit has shocked some members of the tribunal and raised questions about how effectively the process will continue, said that allegations of corruption levelled at the court have still not been properly answered. He said the court also lacked sufficient resources and staff to do the job it had been set.
"The court is still under-funded and under-resourced for the tasks that it is supposed to accomplish," said Mr Petit. "Obviously, allegations such as corruption and maladministration must be addressed and put to rest finally."
The court in Phnom Penh, the Cambodian capital, which took more than a decade to establish, has for several months been hearing evidence against Kaing Guek Eav, better known as Duch, the former head of Tuol Sleng jail, a notorious interrogation and torture centre where more than 14,000 people were sent on their way to The Killing Fields. Barely a dozen of them survived.
Four other senior members of the Khmer Rouge regime have also been charged and are waiting to go on trial. Between 1975 and 1979, the regime was responsible for the deaths of as many as 1.7 million people.
Mr Petit, who has previously served on international genocide tribunals in Rwanda and Sierra Leone, had long made clear his disagreement with some aspects of the tribunal's operation. Late last year he filed an official statement saying that he disagreed with his Cambodian co-prosecutor about extending the number of people to be charged. Just five former senior Khmer Rouge members have been charged, but Mr Petit believed there was a case to be made against a further half-dozen former members of the regime.
His co-prosecutor, Chea Leang, argued that putting more former regime members on trial wound destabilise the country. But there have been widespread rumours that she had been influenced by the Cambodian government, headed by the Prime Minister Hun Sen, who has long been opposed to the joint UN-Cambodian tribunal broadening its investigation. The Prime Minister is said to be concerned about drawing attention to former members of the Maoist-influenced regime who are now senior establishment figures. Mr Petit said yesterday that attempts to interfere with the running of the court were "very disturbing".
Yet the veteran prosecutor insisted that his resignation was for personal reasons rather than because of a disagreement over the way the court performs its duties. He said his decision to leave was the hardest of his professional career and one that had been taken in consultation with the UN over several months. Stressing that the decision had nothing to do with events in Cambodia but, "everything to do with events that have happened in Canada", he added: "They are entirely related to personal family matters, totally unrelated to my professional responsibilities at the court and, therefore, a fully private matter."
Mr Petit claimed that his departture from the prosecutor's bench would not unduly affect the process. He said the gathering of evidence, the legal analysis and the tatical decisions had all been a collective process taken by his office.
"When it became clear that [I] would have to leave, my deputy started preparing himself and is now leading the case and will do so until further notice," he added. Yet Mr Petit's decision to step down has triggered concerns among some observers. Heather Ryan, court monitor for the Open Society Justice Initiative, said that news of his departure was unwelcome. "It is disturbing to hear that the international co-prosecutor is leaving in the midst of the initial trial, at a time when it is critical for the office to establish its leadership role in the trial and the court," she said in a statement. "The sudden departure could delay resolution of pressing matters before the court."
The other alleged war criminals awaiting trial are Pol Pot's former second-in-command Nuon Chea, the former foreign minister Ieng Sary, the former social affairs minister Ieng Thirit and the former head of state Khieu Samphan.
Wednesday, June 24, 2009
Canadian prosecutor quits Khmer Rouge trial
Wed Jun 24, 2009PHNOM PENH (Reuters) - The departing foreign co-prosecutor for Cambodia's Khmer Rouge tribunal expressed concern Wednesday about graft allegations and tight funding that is threatening to derail the trial of Pol Pot's top cadres.
Speaking to reporters a day after he quit for personal reasons, Canadian Robert Petit said the tribunal was in urgent need of funding to prosecute those responsible for 1.7 million deaths during the 1975-79 Khmer Rouge era.
"The court is still under-funded and under-resourced for the tasks that it is supposed to accomplish," Petit, whose last day is September 1, told reporters.
"Obviously, allegations such as the corruption and administration must be addressed and put to rest finally," said Petit, who has served on international genocide tribunals in Rwanda and Sierra Leone.
The joint U.N.-Cambodian tribunal has been fraught with problems since it started work three years ago and some payments to the court have been delayed due to allegations of graft.
Petit also urged politicians and senior officials not to meddle in the tribunal, and said attempts to interfere with the running of the court were "very disturbing."
The court admitted in January that a bid to go after more suspects was brushed aside by Petit's Cambodian co-prosecutor, who argued it would not be good for national reconciliation.
The government has denied meddling in the court, but rights activists have long suspected Cambodian Prime Minister Hun Sen does not want to dig too deep for fear it will unearth secrets about senior Khmer Rouge figures inside his administration.
Kaing Guek Eav, also known as Duch, is currently being tried for his role as the chief of the torture center S-21, where more than 14,000 prisoners died.
The other four who were indicted -- "Brother Number Two" Nuon Chea, the regime's ex-president, Khieu Samphan, and Ieng Sary, its foreign minister, and his wife -- have denied knowledge of any atrocities during Pol Pot's ultra-Maoist revolution.
(Reporting by Ek Madra; Editing by Martin Petty and Bill Tarrant)
Speaking to reporters a day after he quit for personal reasons, Canadian Robert Petit said the tribunal was in urgent need of funding to prosecute those responsible for 1.7 million deaths during the 1975-79 Khmer Rouge era.
"The court is still under-funded and under-resourced for the tasks that it is supposed to accomplish," Petit, whose last day is September 1, told reporters.
"Obviously, allegations such as the corruption and administration must be addressed and put to rest finally," said Petit, who has served on international genocide tribunals in Rwanda and Sierra Leone.
The joint U.N.-Cambodian tribunal has been fraught with problems since it started work three years ago and some payments to the court have been delayed due to allegations of graft.
Petit also urged politicians and senior officials not to meddle in the tribunal, and said attempts to interfere with the running of the court were "very disturbing."
The court admitted in January that a bid to go after more suspects was brushed aside by Petit's Cambodian co-prosecutor, who argued it would not be good for national reconciliation.
The government has denied meddling in the court, but rights activists have long suspected Cambodian Prime Minister Hun Sen does not want to dig too deep for fear it will unearth secrets about senior Khmer Rouge figures inside his administration.
Kaing Guek Eav, also known as Duch, is currently being tried for his role as the chief of the torture center S-21, where more than 14,000 prisoners died.
The other four who were indicted -- "Brother Number Two" Nuon Chea, the regime's ex-president, Khieu Samphan, and Ieng Sary, its foreign minister, and his wife -- have denied knowledge of any atrocities during Pol Pot's ultra-Maoist revolution.
(Reporting by Ek Madra; Editing by Martin Petty and Bill Tarrant)
Sacrava's Political Cartoon: The Last Warrior
Cartoon by Sacrava (on the web at http://sacrava.blogspot.com)Wednesday, June 03, 2009
KRT suspect hearing cancelled
Cambodia's "informal" Truth Commission in the 1980s. (Courtesy of Documentation Centre of Cambodia)Wednesday, 03 June 2009
Written by Georgia Wilkins and Neth Pheaktra
The Phnom Penh Post
A decision by judges to scrap a hearing on further prosecutions at the war crimes court has raised concerns that a resolution to the row has again been delayed.
A DECISION on the politically charged issue of whether Cambodia's Khmer Rouge tribunal will investigate more suspects could be delayed by judges, prompting calls by civil society groups to consider substitutes such as a truth commission in place of the war crimes court.
Judges cancelled a hearing to announce whether further prosecutions could move forward, set for Friday, said international co-prosecutor Robert Petit, who added that he believed the judges had decided to publish their decision "on paper" rather than orally. He said he did not know when a ruling would be made.
"But in the case of Cambodia [a truth and reconciliation commission] certainly cannot be a substitute for the current cases, nor for the [additional] ones I seek to prosecute," warned Petit, saying that calls for additional mechanisms of justice should be used as a complement to, not substitute for, legal justice.
The judges' decision would resolve the months-old legal wrangle between Petit and his Cambodian counterpart, Chea Leang, who has sought to block further prosecutions, citing concerns for national stability.
Five former Khmer Rouge leaders are already in the tribunal's custody. Petit has proposed a second list of suspects that is believed to contain six lower-ranking cadres.
Legal monitors say the judges' decision would be a litmus test for the hybrid court, saying the tribunal, already battered by long-standing allegations of corruption, must demonstrate its independence and allow the second submission to move ahead.
Pre-trial Chamber President Prak Kimsan could not be reached for comment on Tuesday. The court's legal communications officer, Lars Olsen, said the chamber was "still seized" by the issue. But he could not specify when a decision would be made.
Political claims
If the judges do make their decision this week, it will come against a backdrop of escalating public statements from government officials who warn more submissions could plunge Cambodia into chaos.
Speaking at a summit between South Korea and ASEAN on Monday, Foreign Minister Hor Namhong told the Associated Press that "we have to seek justice for our people" while considering the "peace and stability in the country".
Government comments on the issue have observers concerned about political pressure being put on judges.
His group, attached to the Open Society Justice Initiative, condemned government officials in May for wielding too much influence in the court.
Officials have staunchly denied having any involvement in judicial decisions.
"I hope the decision promotes justice," is all Petit would say on the issue.
Truth commission
Despite the absence of a decision, rights groups say they are already floating alternative ways to bring "complete" justice to victims.
The idea of a truth and reconciliation commission, similar to ones employed in South Africa and Sierra Leone, has been suggested, and Long Panhavuth affirmed that other mechanisms needed to be explored.
"The role of the court is not enough," he said, adding, however, that there would be legitimate challenges to building an effective commission.
"For a truth and reconciliation commission, you need money. You need political will. Otherwise, you will only get one corner of the story," he said.
Petit said Tuesday that a truth and reconciliation commission could complement the work of the court, so long as it wasn't treated as a substitute for legal justice.
"Impunity, generally, is too much of a problem not to be addressed to the full extent possible by this court. ... However, I do think that a [truth commission] or similar mechanism could be the logical continuation of our work," he added.
Youk Chhang, director of the Documentation Center of Cambodia (DC-CAM), said a commission "was great idea", but one that shouldn't excuse a poorly working court.
"The ECCC is not a history department, library or NGO forum. It is a court, and a court is an important element of any human society and we need to give it complete independence to perform."
A DECISION on the politically charged issue of whether Cambodia's Khmer Rouge tribunal will investigate more suspects could be delayed by judges, prompting calls by civil society groups to consider substitutes such as a truth commission in place of the war crimes court.
Judges cancelled a hearing to announce whether further prosecutions could move forward, set for Friday, said international co-prosecutor Robert Petit, who added that he believed the judges had decided to publish their decision "on paper" rather than orally. He said he did not know when a ruling would be made.
"But in the case of Cambodia [a truth and reconciliation commission] certainly cannot be a substitute for the current cases, nor for the [additional] ones I seek to prosecute," warned Petit, saying that calls for additional mechanisms of justice should be used as a complement to, not substitute for, legal justice.
The judges' decision would resolve the months-old legal wrangle between Petit and his Cambodian counterpart, Chea Leang, who has sought to block further prosecutions, citing concerns for national stability.
Five former Khmer Rouge leaders are already in the tribunal's custody. Petit has proposed a second list of suspects that is believed to contain six lower-ranking cadres.
Legal monitors say the judges' decision would be a litmus test for the hybrid court, saying the tribunal, already battered by long-standing allegations of corruption, must demonstrate its independence and allow the second submission to move ahead.
Pre-trial Chamber President Prak Kimsan could not be reached for comment on Tuesday. The court's legal communications officer, Lars Olsen, said the chamber was "still seized" by the issue. But he could not specify when a decision would be made.
Political claims
If the judges do make their decision this week, it will come against a backdrop of escalating public statements from government officials who warn more submissions could plunge Cambodia into chaos.
Speaking at a summit between South Korea and ASEAN on Monday, Foreign Minister Hor Namhong told the Associated Press that "we have to seek justice for our people" while considering the "peace and stability in the country".
Government comments on the issue have observers concerned about political pressure being put on judges.
"We need to know that the decision [by judges] is a legal one, not a political one.""We need to know that the decision is a legal one, not a political one," said Long Panhavuth, a court monitor for the Cambodia Justice Initiative.
His group, attached to the Open Society Justice Initiative, condemned government officials in May for wielding too much influence in the court.
Officials have staunchly denied having any involvement in judicial decisions.
"I hope the decision promotes justice," is all Petit would say on the issue.
Truth commission
Despite the absence of a decision, rights groups say they are already floating alternative ways to bring "complete" justice to victims.
The idea of a truth and reconciliation commission, similar to ones employed in South Africa and Sierra Leone, has been suggested, and Long Panhavuth affirmed that other mechanisms needed to be explored.
"The role of the court is not enough," he said, adding, however, that there would be legitimate challenges to building an effective commission.
"For a truth and reconciliation commission, you need money. You need political will. Otherwise, you will only get one corner of the story," he said.
Petit said Tuesday that a truth and reconciliation commission could complement the work of the court, so long as it wasn't treated as a substitute for legal justice.
"Impunity, generally, is too much of a problem not to be addressed to the full extent possible by this court. ... However, I do think that a [truth commission] or similar mechanism could be the logical continuation of our work," he added.
Youk Chhang, director of the Documentation Center of Cambodia (DC-CAM), said a commission "was great idea", but one that shouldn't excuse a poorly working court.
"The ECCC is not a history department, library or NGO forum. It is a court, and a court is an important element of any human society and we need to give it complete independence to perform."
Monday, March 02, 2009
Judging the Khmer Rouge Tribunal
March 2, 2009by John A. Hall
Far Eastern Economic Review
Nobody would accuse the Khmer Rouge tribunal—the Extraordinary Chambers in the Court of Cambodia (ECCC)—of moving with undue haste. Nevertheless, the court in Phnom Penh is on the verge of beginning a trial of one of its five defendants, that of Kaing Guek Eav, alias Duch, the former commander of an infamous torture facility.
Unfortunately there is little reason to rejoice. Despite years of ineffectual handwringing by the U.N., donors and monitors, the ECCC has failed to adequately address persistent accusations of corruption and political interference. The following four steps are the minimal prerequisites for the ECCC to regain a semblance of legitimacy before the trials officially start this month:
1) Limit opportunities for political interference in judicial decision making.
Fears about political influence in the ECCC’s work were heightened in December last year when Cambodian co-prosecutor, Chea Leang, would not agree to the investigation of additional suspects beyond the five named defendants. The reasons she provided to justify this position had nothing to do with the sufficiency of the evidence or the legal basis for additional investigations, but were political in nature and aligned with the long-held views of the Cambodian Prime Minister who has long wanted to limit the trials to his political enemies and resisted efforts which might see people in positions of power (or whose patrons are) brought before the court.
The Pre-Trial Chamber is set to resolve the dispute between the international and Cambodian co-prosecutors, and has an opportunity to visibly assert the court’s independence. Under the ECCC’s rules, this decision is set to be made in secret and it is unclear whether its decision would be made public. Judges need to change this rule, and ensure the court operates with total transparency on a question which will go a long way towards determining whether the court is seen as one which is credible and not simply a tool of the government, in the same way that domestic courts are often viewed. At a minimum, the ECCC must allow domestic and international monitors to witness this secret proceeding.
2) Create an independent investigation mechanism for accusations of wrongdoing.
In June 2008, Cambodian staff brought to the UN specific complaints of corruption. These complaints followed a call by watchdog NGO Open Society Justice Initiative for an investigation into allegations that ECCC Cambodian staff had to pay kickbacks in exchange for their jobs. In response to the U.N. report, which reportedly found merit in the complaints in its initial review, apparently asked the Cambodian government to investigate. However, with reports of retaliation against suspected whistleblowers—and a history in Cambodia of threats against those who challenge corrupt practices, a national investigation is unlikely to inspire confidence in local staff to come forward.
On February 23, a high-level U.N. delegation met with Cambodian Deputy Prime Minister Sok An, and issued a joint statement that an agreement has been reached involving continuing parallel domestic and international mechanisms to investigate corruption. The statement was ambiguous and unclear as to specifics. In so far as it appears to rely on Cambodian staff being willing to report wrongdoing to ethics monitors appointed by the Cambodian tribunal management, the parallel structure would seem to chill rather than encourage such reports. The joint statement reeks of political compromise.
Preferable to parallel mechanisms would be an entirely independent procedure for investigating corruption at the ECCC—one that does not rely for its success on the honest participation of Cambodian officials. One solution is an auditing model, which has already been used in a limited fashion at the tribunal. An independent auditing company acceptable to both the U.N. and the Cambodians could conduct a detailed investigation with the specific mandate of identifying corrupt practices. The initial audit report would be circulated to the U.N. and the Cambodian government, senior ECCC management, and donor nations, with only an executive summary made public. Subsequent quarterly audits would, however, be published in full. This would provide an incentive to quietly “clean house” of the corrupt individuals and practices identified in the first report. Absent cooperation on this matter, however, the U.N. should make public its prima facie review of the June 2008 allegations, suitably redacted to protect the identities of named individuals.
3) Human rights monitors, NGOs and reporters must be allowed to keep their sources confidential.
Civil society, including human rights monitors and journalists, often play a critical role in calling out wrongs and abuses of power by institutions funded by public money. While this role is often a necessary pre-requisite to action—like investigations—their unique role must be respected. This includes ensuring that their ability to protect their sources—those who come forward with information about potential wrongdoing—remains intact. With the ECCC, a real danger exists that NGOs and other monitors may be compelled in the course of the legal proceedings at the tribunal to identify their confidential sources. Such disclosure would undermine the tribunal by imperiling the safety of sources and chilling potential critics and whistleblowers.
Such a testimonial privilege need not be absolute. Rather, a qualified privilege should be recognized in those situations where the communications were made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure, and that confidentiality is essential to the nature and type of the relationship with the confidant. The risk of being compelled to reveal sources may result in NGOs and monitors choosing to leave Cambodia or face a jail sentence rather than be forced to identify their sources. The departure of such groups would be a disaster for anyone who values the watchdog role such groups perform.
4) Ensure adequate whistleblower protections for those reporting wrongdoing.
In those situations where a whistleblower is willing for her identity to be made public, or where her identity becomes known without her permission, there must be a clear guarantee that such persons will be free from all forms of retribution. Absent this assurance, those brave individuals who have come forward with allegations of corrupt practices lay dangerously exposed. These protections must carry the full weight of the international community – empty promises from the Cambodian government alone to not persecute whistleblowers will ring entirely hollow without international mandate.
The choice before the tribunal is quite clear: Proceeding with the trials without adequately addressing the allegations of corruption and political interference risks tainting the entire process and casting a shadow over any legal outcomes. That would be a disservice to the people of Cambodia—for whom the ECCC should provide an exemplar of a court operating to international standards. It would also be a disservice to the future of international justice, and would establish a precedent of U.N. acquiescence to regimes seeking to profit from and control internationally-backed tribunals.
John A. Hall is a professor at Chapman University School of Law, Orange, Calif., and a research fellow at the Center for Global Trade & Development.
Unfortunately there is little reason to rejoice. Despite years of ineffectual handwringing by the U.N., donors and monitors, the ECCC has failed to adequately address persistent accusations of corruption and political interference. The following four steps are the minimal prerequisites for the ECCC to regain a semblance of legitimacy before the trials officially start this month:
1) Limit opportunities for political interference in judicial decision making.
Fears about political influence in the ECCC’s work were heightened in December last year when Cambodian co-prosecutor, Chea Leang, would not agree to the investigation of additional suspects beyond the five named defendants. The reasons she provided to justify this position had nothing to do with the sufficiency of the evidence or the legal basis for additional investigations, but were political in nature and aligned with the long-held views of the Cambodian Prime Minister who has long wanted to limit the trials to his political enemies and resisted efforts which might see people in positions of power (or whose patrons are) brought before the court.
The Pre-Trial Chamber is set to resolve the dispute between the international and Cambodian co-prosecutors, and has an opportunity to visibly assert the court’s independence. Under the ECCC’s rules, this decision is set to be made in secret and it is unclear whether its decision would be made public. Judges need to change this rule, and ensure the court operates with total transparency on a question which will go a long way towards determining whether the court is seen as one which is credible and not simply a tool of the government, in the same way that domestic courts are often viewed. At a minimum, the ECCC must allow domestic and international monitors to witness this secret proceeding.
2) Create an independent investigation mechanism for accusations of wrongdoing.
In June 2008, Cambodian staff brought to the UN specific complaints of corruption. These complaints followed a call by watchdog NGO Open Society Justice Initiative for an investigation into allegations that ECCC Cambodian staff had to pay kickbacks in exchange for their jobs. In response to the U.N. report, which reportedly found merit in the complaints in its initial review, apparently asked the Cambodian government to investigate. However, with reports of retaliation against suspected whistleblowers—and a history in Cambodia of threats against those who challenge corrupt practices, a national investigation is unlikely to inspire confidence in local staff to come forward.
On February 23, a high-level U.N. delegation met with Cambodian Deputy Prime Minister Sok An, and issued a joint statement that an agreement has been reached involving continuing parallel domestic and international mechanisms to investigate corruption. The statement was ambiguous and unclear as to specifics. In so far as it appears to rely on Cambodian staff being willing to report wrongdoing to ethics monitors appointed by the Cambodian tribunal management, the parallel structure would seem to chill rather than encourage such reports. The joint statement reeks of political compromise.
Preferable to parallel mechanisms would be an entirely independent procedure for investigating corruption at the ECCC—one that does not rely for its success on the honest participation of Cambodian officials. One solution is an auditing model, which has already been used in a limited fashion at the tribunal. An independent auditing company acceptable to both the U.N. and the Cambodians could conduct a detailed investigation with the specific mandate of identifying corrupt practices. The initial audit report would be circulated to the U.N. and the Cambodian government, senior ECCC management, and donor nations, with only an executive summary made public. Subsequent quarterly audits would, however, be published in full. This would provide an incentive to quietly “clean house” of the corrupt individuals and practices identified in the first report. Absent cooperation on this matter, however, the U.N. should make public its prima facie review of the June 2008 allegations, suitably redacted to protect the identities of named individuals.
3) Human rights monitors, NGOs and reporters must be allowed to keep their sources confidential.
Civil society, including human rights monitors and journalists, often play a critical role in calling out wrongs and abuses of power by institutions funded by public money. While this role is often a necessary pre-requisite to action—like investigations—their unique role must be respected. This includes ensuring that their ability to protect their sources—those who come forward with information about potential wrongdoing—remains intact. With the ECCC, a real danger exists that NGOs and other monitors may be compelled in the course of the legal proceedings at the tribunal to identify their confidential sources. Such disclosure would undermine the tribunal by imperiling the safety of sources and chilling potential critics and whistleblowers.
Such a testimonial privilege need not be absolute. Rather, a qualified privilege should be recognized in those situations where the communications were made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure, and that confidentiality is essential to the nature and type of the relationship with the confidant. The risk of being compelled to reveal sources may result in NGOs and monitors choosing to leave Cambodia or face a jail sentence rather than be forced to identify their sources. The departure of such groups would be a disaster for anyone who values the watchdog role such groups perform.
4) Ensure adequate whistleblower protections for those reporting wrongdoing.
In those situations where a whistleblower is willing for her identity to be made public, or where her identity becomes known without her permission, there must be a clear guarantee that such persons will be free from all forms of retribution. Absent this assurance, those brave individuals who have come forward with allegations of corrupt practices lay dangerously exposed. These protections must carry the full weight of the international community – empty promises from the Cambodian government alone to not persecute whistleblowers will ring entirely hollow without international mandate.
The choice before the tribunal is quite clear: Proceeding with the trials without adequately addressing the allegations of corruption and political interference risks tainting the entire process and casting a shadow over any legal outcomes. That would be a disservice to the people of Cambodia—for whom the ECCC should provide an exemplar of a court operating to international standards. It would also be a disservice to the future of international justice, and would establish a precedent of U.N. acquiescence to regimes seeking to profit from and control internationally-backed tribunals.
John A. Hall is a professor at Chapman University School of Law, Orange, Calif., and a research fellow at the Center for Global Trade & Development.
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