Cambodian draft law on unions worries labour leader

Wed Jun 9, 2010
By Prak Chan Thul

"Rong Chhun said he took issue with a requirement that unions report their financial situation to the government every year.
...
A union could be suspended if it was late in submitting its financial report, he said. The bill also makes union leaders legally responsible if strikes turn violent, with punishment including possible prison terms and suspension of the union."

PHNOM PENH (Reuters) - Cambodia is drafting a law to regulate trade unions and defend the interests of workers and employers, a government official said on Wednesday, but a workers' leader said the law would interfere in unions' business.

Relations have at times been strained over recent years between a government trying to attract foreign investment and develop a fledgling industrial sector and workers' groups intent on supporting their members.

"We have created this law as part of the contribution to build the country as a state with rule of law," Oum Mean, secretary of state at the Labour Ministry, told Reuters.

Cambodia, still dealing with the legacy of decades of conflict including the communist Khmer Rouge "Killing Fields" rule, has a predominantly agricultural economy but sectors such as garments and tourism are becoming increasingly important.

The law on trade unions aims "to provide for the rights of workers and employers to establish and join respective professional organisations as the basis of harmonious industrial relations," according to a copy of the draft bill.

It would guarantee the right to collective bargaining between workers and employers, enhance industrial relations and ensure employment and national development, it states.

Prime Minister Hun Sen, at times criticised by his opponents and chided by foreign backers over restrictions on political freedom, proposed the bill in April, Oum Mean said, adding the draft would be made public for discussion.

But Rong Chhun, president of the Cambodia Confederation of Unions, said the law would interfere with the rights of labour groups and benefit the government.

"It is a restriction," said Rong Chhun, whose confederation is made up of about 90,000 members of the Free Trade Union and the Cambodia Independent Teachers Association.

In particular, Rong Chhun said he took issue with a requirement that unions report their financial situation to the government every year.

"The ministry will interfere a lot in unions' work," Rong Chhun told Reuters, saying those who donated to unions should know how their money was being spent, not the government.

A union could be suspended if it was late in submitting its financial report, he said. The bill also makes union leaders legally responsible if strikes turn violent, with punishment including possible prison terms and suspension of the union.

"Unions which really serve workers' interests will face problems," Rong Chhun said.

Oum Mean dismissed such concerns.

Last week, one of Cambodia's biggest unions threatened to organise a garment workers' strike to demand an increase in the minimum wage.

An influential trade union leader, Chea Vichea, was shot dead on a street in Phnom Penh in 2004. His killing is unsolved.

(Editing by Robert Birsel)

ECCC Victims Unit Change Threatens Credibility

Sunday, May 31, 2009
By James Bair
Originally posted at http://impossibleasflying.blogspot.com

In the long tale of good intentions gone awry that is the Extraordinary Chambers in the Courts of Cambodia, the one area of the Court that had continued to give me hope was the Victims Unit. As I have written elsewhere, the VU is a pioneering experiment in international criminal law, combining the victims’ participation rights of the civil law system with a war crimes tribunal to allow victims a right to present their own case against those accused of the slaughter of nearly 1.5 million Cambodians under the Khmer Rouge regime.

Sadly, the VU now appears to have fallen victim to political influences, as well. On May 11, victims’ lawyers filed a motion with the court calling on the UN to release the results of its investigation into corruption at the ECCC. The next day, these lawyers instead found that they themselves had now become the target of investigations to determine whether their work would “discredit” the court. The following Monday, the head of the Victims Unit, a courageous, dedicated professional with a long career in international human rights, abruptly resigned, to be replaced by the Court’s Public Affairs officer, a former librarian from Australia.

In the May18 press release announcing this change, the ECCC stated that it was “taking steps to strengthen and streamline its activities in the areas of Public Affairs, Outreach and the Victims Unit.” On its face, this is the type of neutral language that only a lawyer could love. It is mildly forceful, and has active verbs like “strengthen” and “streamline” that are hard to quarrel with, especially at an institution that is not known for either its strength or its efficiency. But a closer look shows that these changes could well threaten the independence and effectiveness of the Victims Unit, and perhaps mark the end of the ECCC’s last shreds of legitimacy.

Nearly a year ago now, bowing to increasing pressure from the international community, the United Nations began an investigation into charges of corruption and graft at the ECCC. In August of last year, the Court decided to supplement this effort by appointing Dr. Helen Jarvis, then the head of Public Affairs for the ECCC, as the Court’s “ethics monitor.” This was intended to shed light on accusations at the Court and dispel any fears that corruption would taint the legitimacy of any verdict rendered by the Tribunal. Shortly after Dr. Jarvis’ appointment, however, it was announced that the Cambodian government would review all future allegations in secret. Not surprisingly, allegations of corruption at the court continue, and the details of the UN’s investigation have still not been made public.

The victims of the Khmer Rouge apparently decided that they’d had enough. According to a Phnom Penh Post article published on May 12, lawyers for the civil party victims filed a motion with the Court demanding that the results of the UN investigation be made public. In a press release, the lawyers stated that:

“The existence of the [UN report] is directly relevant to the proceedings in the Duch trial, as its publication after the close of the proceedings may expose the trial judgment to claims ... that corruption within the ECCC rendered the trial unfair.”
In what seemed to be a reference to Dr. Jarvis’ work as “ethics monitor,” the lawyers went on to say that:

"We were hoping that there would be an anti-corruption mechanism in place by now, but the government and the UN have decided against this. We are now in the position where we are four weeks into the first trial and the allegations we are reading about are actually getting worse ... it's a ticking bomb.
"The victims,” he emphasized, “know that it is not closure if the verdict is tainted."

The Court has thus far not responded to the motion. However, in a rare moment of rapid response, the Cambodian government announced an immediate change in policy that could only have been triggered by the civil party filing.

On Tuesday, May 12, the day after the filing, a spokesman for Cambodia’s Council of Ministers announced that the Cambodian government was now monitoring “all international staff” at the Tribunal, saying: “the international side has corruption, too.” When reporters pointed out that this amounted to a tacit admission of still-undisclosed corruption on the Cambodian side of the Court, he backed off slightly, saying that no evidence of corruption on the Cambodian side had yet emerged.

The spokesman went on to emphasize that these new investigations will include “some civil party lawyers and interns working at the UN-backed court.” When asked to specify the type of “corruption” of which these international lawyers were suspected, he said: “This is not interference. I am not threatening anyone. We are keeping watch and looking for information that might discredit the ECCC."

Not surprisingly, he did not clarify what sorts of things might “discredit” the court, though one suspects that probing around things that the Cambodian government might prefer remain secret would qualify.

And so, rather than addressing the serious accusations raised by the victims, the Cambodian government has decided instead to investigate the lawyers who raised the concern. This is precisely the same thing that happened in January in response to corruption allegations raised by the Defense – rather than responding to the charges, the Cambodian judges threatened to sue the defense lawyers.

But the most disturbing news came the following Monday, May 18, when it was announced that the head of the Victims Unit, KEAT Bophal, had suddenly resigned. Ms. Bophal, who had formerly worked for the UN High Commissioner for Human Rights, had been director of the Unit for a year and a half. While no proof has been offered of a connection between these events, it does seem curious that her abrupt departure came only days after victims’ lawyers became emboldened to challenge corruption at the ECCC.

The choice of her replacement is telling, and hints that the VU’s focus may be about to shift from pursuing justice for victims to maintaining peace with Cambodia’s ruling politicians. While Ms. Bophal had a lengthy career in the field of human rights advocacy before assuming the directorship of the Victims Unit, Dr. Jarvis is a former librarian who has until this point served as the ECCC’s Public Affairs Officer. Before joining the Court, it has been reported that she was a longtime advisor to the Cambodian Deputy Prime Minister, Sok An, which has led some to question her impartiality.

Dr. Jarvis' work at the Tribunal thus far has not been to advocate for victims – it has been to advocate for the Court itself. As public affairs officer, it was Dr. Jarvis' job to put the best face on the near-constant scandals and accusations of corruption that have plagued the ECCC. It is an understandable position, and one that is essential to ensuring that the Court continues to function. But it is fundamentally incompatible with the interests of victims, for whom a fair trial is paramount. As months worth of news stories have demonstrated, a fair trial and the continuation of business as usual at the ECCC cannot be reconciled with one another.

The real concern, however, should not be Dr. Jarvis’ personal qualifications to lead the VU, nor any allegations of ties to the Cambodian government, unless and until these can be substantiated. Rather, it is the sheer callousness of the decision to appoint her in this manner. While it has not been proven that the VU’s leadership changed hands due to political pressure, it certainly seems that way. And in many respects, the continuing impression that the ECCC operates on political expediency, rather than the rule of law, is more damaging to the trials than a full disclosure of any alleged corruption could ever be.

The choice of Dr. Jarvis for this position is curious for several reasons. First, it seems inconsistent with the spirit, if not the letter of the ECCC law, which holds that Cambodians should comprise the majority at every level of this hybrid institution. This same principle was applied in the previous structuring of the VU. Ms. Bophal was appointed as head of the Victims Unit in February 2008. Despite the fact that the ECCC had been operational for over a year at that point, and that the Victims Unit had been up and running for nearly four months, much of the implementation of the Unit’s mandate was delayed until a Cambodian was named as the director. Such was the importance rightly attached to ensuring that the victims of the Khmer Rouge be represented by one of their own. Alas, the importance of this symbolism seems to have waned in comparison with the Court's need to control the corruption story.

Secondly, Dr. Jarvis herself has been intimately involved with the corruption investigations for nearly a year now. Her appointment, coming so quickly on the heels of a civil party motion that criticized her own ethics investigation, cannot help but be tainted, even if no conflict of interests actually exists. Even if no overt pressure is henceforth placed upon civil party lawyers, the optics of this situation are all wrong, as a former Public Affairs Officer should surely know.

The culture of intimidation at the Court has not improved since Dr. Jarvis’ appointment. Just a few days ago, on May 26, the Post reported that a Cambodian government official ominously warned journalists to "be more professional" in their reporting about the Court, warning that critical reporting of the tribunal "could cause justice to escape the Cambodian people.” The minister, Pen Samitthy, coyly declined to say that such reporting might cause the UN to pull out of the ECCC. However, the words he chose apply with equal force to concerns about the recent changes at the Victims Unit.

"We have the saying," he told journalists last week, "if there is smoke, there is fire."

Judge says will quit KRouge court if can't work

Judge Marcel Lemonde (Photo: AP)

Wednesday, May 27, 2009

PHNOM PENH (AFP) — The French investigating judge at Cambodia's troubled Khmer Rouge war crimes court told reporters Wednesday he would quit his post if he sensed interference in his work.

The UN-backed tribunal, which is trying the regime's former prison chief Duch, has been plagued by allegations of political interference by the government and claims that Cambodian staff had to pay kickbacks for jobs.

"I came here to work as a judge... The day I will not be able to work anymore, I will leave," said investigating judge Marcel Lemonde at a press conference.

The UN has withheld funds to Cambodian operations at the court in absence of an agreement to stop the alleged corruption, however the global body's talks with senior government officials have ended without a deal.

Lemonde and co-investigating judge You Bunleng said their office had so far interviewed more than 450 witnesses but their work on the court's second case against four senior leaders would not be completed before the end of the year.

"We are very aware of the necessity to complete the investigation as soon as possible. Our goal is to complete it by the end of 2009," Lemonde said.

However he added "this goal is a very ambitious one, given the complexity of the file".

Two investigators have also been in France since last week to interview witnesses, court officials said.

Khmer Rouge leader Pol Pot died in 1998 before facing justice, and fears over the health of ageing suspects hang over the court.

Former Khmer Rouge ideologue Nuon Chea, head of state Khieu Samphan, foreign minister Ieng Sary and his wife, minister of social affairs Ieng Thirith are in detention awaiting the court's second trial.

The long-awaited first trial has heard Duch, whose real name is Kaing Guek Eav, acknowledge responsibility and beg forgiveness for overseeing the torture and execution of more than 15,000 people at the notorious Tuol Sleng prison.

Testifying on Wednesday, American Khmer Rouge expert Craig Etcheson said that among the network of regime prisons around the country, Tuol Sleng was the only one that worked directly for the regime's leaders.

"S-21 was unique. It was... considered an organ of the government or the communist committee," Etcheson said.

The widespread purges during the 1975 to 1979 regime were probably due to senior leaders' paranoia and a result of indiscriminate methods of weeding out Khmer Rouge enemies, Etcheson said.

Up to two million people were executed or died of starvation, disease and overwork as the Khmer Rouge movement emptied cities and enslaved the population on collective farms in its bid to create a communist utopia.

The trials of pursuing the Khmer Rouge

Sunday, 29 March 2009
By Guy De Launey
BBC News, Phnom Penh

There are fears that Comrade Duch might be the only one to stand trial

Robert Petit is taking a pause for thought.

A considered approach from the international co-prosecutor at the Khmer Rouge Tribunal is, perhaps, only to be expected.

But this veteran of several international criminal courts usually has a way with a snappy answer which can leave the journalist on the receiving end feeling they should have followed a different line of inquiry.

This time, however, the Canadian official seems momentarily flummoxed. He has just been asked whether, bearing in mind the difficulties the Khmer Rouge Tribunal has faced over the past three years, he is optimistic that other defendants will follow the former prison chief known as Comrade Duch into the trial chamber at the special courts.

A long, drawn-out exhalation follows a sharp intake of breath and a grimace. The prosecutor's fingers rub at his forehead. Ten seconds pass. When Mr Petit finally speaks, his words are punctuated by an occasional half-laugh.

Obstacles

"I'm still hopeful. I assume those hopes are reasonable," he begins.

Robert Petit is a veteran of international criminal courts

"In the second case the accused are old and have health issues. Since their detention, the investigation has taken almost two years. I'm hoping that the investigation will be finished by the end of the year and there could be a trial, but I'm not sure how realistic that is.

"And for the third trial, it's still up to the pre-trial chamber to decide whether it goes ahead."

Mr Petit is not alone in his reservations. Five former members of the Khmer Rouge are currently in detention, facing charges of crimes against humanity.

But other international officials at the tribunal have expressed concern privately that Comrade Duch might ultimately be the only former Khmer Rouge member to stand trial for crimes against humanity.

Time, money and political will are cited as the main obstacles. Under the original plan drawn up by the United Nations and the Cambodian government, the Extraordinary Chambers in the Courts of Cambodia (ECCC), as the tribunal is officially known, would operate for three years and cost $56m.

This is a bargain compared with previous international criminal tribunals, and was held up as a model for others to follow.

The theory was that a low-cost, locally-based process with UN-appointed judges working alongside Cambodian counterparts would deliver justice and help to develop the legal system in the host country.

Political will

In reality, the budget has tripled, local and international officials have frequently been at loggerheads, and the three-year time frame has been dismissed as unrealistic.

"The Khmer Rouge Tribunal is circumscribed by politics - everyone knows this" - Theary Seng

The Cambodian side of the ECCC's administration says it is almost out of funds, even as a series of financial corruption allegations remains unresolved.

The turnover of staff on the UN side has undoubtedly made it harder to provide effective oversight.

Finding people to question the political will of the government to see the process through is not hard. Theary Seng, whose book Daughter Of The Killing Fields describes how the Khmer Rouge killed both her parents, believes those in power feel they have too much to lose.

"The Khmer Rouge Tribunal is circumscribed by politics. Everyone knows this," she says.

"There are individuals within the current government who are very, very scared that information about their past may surface in the process of arguing the crimes under discussion.

"These individuals have influence, power and means. They hold high position. I believe that some of them cannot sleep at night because this Khmer Rouge Tribunal exists."

One dispute in particular is cited as evidence by those who believe the government is trying to restrict the scope of the tribunal, and Mr Petit is one of the protagonists.

Stability

Chea Leang refutes accusations of political pressure

The international co-prosecutor wanted to send a list of six more suspects to the investigating judges, but his Cambodian counterpart, Chea Leang, objected on the grounds that the stability of the country might be affected.

She resents suggestions that she was acting under political pressure.

"I have read and heard the media reports about political interference," she tells the BBC.

"They're within their rights to say this, but it's very unfair on me. I think that if I follow what [my critics] want, they'll say I'm independent. But if I don't do what they want, they'll say I'm not independent."

Officials on the Cambodian side of the court insist that the government is committed to seeing the process through, regardless of what it reveals.

They point out that Prime Minister Hun Sen personally requested UN assistance to set up what eventually became the ECCC more than a decade ago.

But some members of the governing party have stated publicly that they believe the tribunal should not pursue more suspects.

"I don't think it's a very positive approach for people with public responsibilities to comment on what courts should or should not do," says Mr Petit.

"I think an impartial, free and fair legal system is the only foundation you can have if you want to build any kind of democratic society."

Comrade Duch's trial will be the first test for the ECCC. It would be a bitter blow for those who survived the horrors of the Pol Pot era if more senior Khmer Rouge figures were not to follow him into the dock.

Khmer Rouge tribunal must have autonomy

March 18, 2009
By Lao Mong Hay
UPI Asia Online

Column: Rule by Fear

Hong Kong, China — It took the Cambodian government and the United Nations almost 10 years to agree on a U.N.-assisted tribunal under Cambodian jurisdiction to try leaders of the former Khmer Rouge regime for their crimes. This tribunal – officially known as the Extraordinary Chambers in the Courts of Cambodia, also known as the Khmer Rouge Tribunal – has a trial chamber and a Supreme Court chamber. Cambodian judges are the majority in both.

It also has two co-prosecutors, one Cambodian and the other international, and two co-investigating judges, again one Cambodian and the other international. The United Nations proposed the international judges and prosecutors for appointment by the Cambodian authorities

The tribunal was formed in May 2006 with the appointment of all judges and prosecutors. Not long after, it was hit by allegations that Cambodian court personnel, including judges, had to kick back a significant percentage of their wages to Cambodian government officials in exchange for their positions on the tribunal. The same allegations of kickbacks have been made again over recent months.

While neither the Cambodian nor the U.N. authorities have denied or confirmed these allegations, the tribunal is further facing a shortage of funds, as its original budget of US$56.3 million donated by the international community is about to run out. It needs an additional US$44.1 million for 2009, and the international community will not come forth with this new funding until it is confident of a corruption-free environment for the trials.

Another unwelcome development, which has been a serious concern right from the beginning and has now come to mar the tribunal’s credibility, is political interference. One foreign official reportedly told a visiting German delegation in November 2008 that the Cambodian government “tries to interfere in the work of the tribunal.” That delegation’s report says, “The government of Cambodia has already signaled that it will not allow for additional criminal investigations to be opened.”

These additional investigations came into the open when the tribunal made public a disagreement over them between the international and the Cambodian prosecutors. According to a tribunal statement dated Jan. 5, the international prosecutor, Robert Petit, wants to “open new judicial investigations against certain additional suspects.”

According to Petit, “There are reasons to believe that (1) the crimes described in those submissions were committed, (2) these crimes are within the jurisdiction of this Court, and (3) they should be investigated by the Co-Investigating Judges.” The same statement added that Petit “does not believe that such prosecutions would endanger Cambodia’s peace and stability.”

The same statement said that the Cambodian prosecutor, Chea Leang, “believes that these investigations should not proceed on account of Cambodia’s past instability and the continued need for national reconciliation, (2) the spirit of the agreement between the United Nations and the Government of Cambodia (“Agreement”) and the spirit of the law that established this Court (“ECCC Law”), and (3) the limited duration and budget of this Court.”

Chea Leang “feels that this Court should instead prioritize the trials of the five suspects already detained” and “maintains that this Court’s mandate can be adequately fulfilled by the prosecution of the suspects already detained,” the same statement added.

Following this disagreement, there was public support for additional investigations and concomitant criticism of Chea Leang’s disagreement. Though the names of additional suspects are not known, it has been suggested they could include those serving in the present government.

The Cambodian government objected to the additional investigations and sided with Chea Leang, who is known to be a deputy prime minister’s niece. On Feb. 24, referring to the continued recognition of the Khmer Rouge as the legitimate government of Cambodia after it was ousted, Prime Minister Hun Sen said, “The U.N. and countries that supported (Khmer Rouge Leader) Pol Pot to occupy (Cambodia’s) seat at the U.N. from 1979 to 1991 should be tried first … They should be sentenced more heavily than Pol Pot.” He acknowledged that their trial was not possible, however.

Later, on March 10, the government spokesman and Minister of Information Khieu Kanharith amplified his prime minister’s unhappiness with additional investigations and urged the tribunal to deal with the five suspects it had detained, accusing the tribunal’s foreign staff of dragging their feet so as to get more pay.

He said: “They have not even heard one case, yet they have created another. They are simply dragging their feet so as to receive more salaries. If they really want to push the process forward, when they have five cases at hand, they should hear these five cases first. When they have finished with them, then they can think of others.”

These reactions have confirmed the allegation that the Cambodian government is interfering in the tribunal’s work. By doing so, the Cambodian government has violated the principle of separation of powers, the independence of the judiciary and the prosecutors’ exclusive power to prosecute, which are all enshrined in Cambodia’s Constitution.

It has also breached the ECCC Law, which gives the tribunal all power to bring to trial Khmer Rouge leaders and those most responsible for crimes committed in that specified period. It has further violated Article 20 of this law on the settlement of the difference between the co-prosecutors by a pre-trial chamber.

The government should let this chamber settle this difference free from any influence. The tribunal will be seen as having been under government pressure if this chamber rules against the additional investigations.

Together with the alleged corruption, the government interference has seriously undermined the majesty and dignity the Khmer Rouge Tribunal must have in order to assert its authority, maintain its credibility and win the public trust.

The Cambodian government must help the tribunal by dealing firmly with corruption in its midst, and heads must roll if need be. But it must absolutely keep its hands off and let the tribunal function free of any interference.
--
(Lao Mong Hay is a senior researcher at the Asian Human Rights Commission in Hong Kong. He was previously director of the Khmer Institute of Democracy in Phnom Penh, Cambodia, and a visiting professor at the University of Toronto in 2003. In 1997, he received an award from Human Rights Watch and the Nansen Medal in 2000 from the United Nations High Commissioner for Refugees.)

UN-Cambodian war crimes court is tested

February 19, 2009
By Peter Maguire
Boston Globe (Massachusetts, USA)

EARLIER this month, the controversy-plagued UN-Cambodian war crimes court announced that the trial of Khmer Rouge prison camp commandant Kaing Guek Eav, better known as "Brother Duch," would begin in March.

Almost as an afterthought, the court added that proceedings against the regime's political leaders Ieng Sary, Nuon Chea, and Khieu Samphan - the cases that will make or break these proceedings - would be delayed for yet another year.

While it is heartening to see Cambodia's war-crimes tribunal do something other than field pretrial motions, Duch is a garden-variety war criminal who could be quickly and easily convicted by a basic military tribunal for his well-documented violations of basic human rights norms.

If Cambodia's unwieldy mixed tribunal cannot speedily convict this bloodstained butcher, it stands no chance in the cases against the well-defended and unrepentant Khmer Rouge leaders, whose legal guilt is far more difficult to prove.

Duch, although a key functionary, was not a policy maker. The former teacher lorded over a prison, Tuol Sleng, that 16,000 to 20,000 entered and less than 20 survived. Before prisoners were killed, most were photographed, tortured, and interrogated. When the Vietnamese liberated the prison in 1979, a large portion of these meticulous photographic and documentary records were recovered. Even guards at Tuol Sleng feared for their lives - according to prison records, over 500 guards and staff members were killed for such seditious acts as breaking a shovel, screaming in their sleep, or destroying a hornet's nest.

When I asked Tuol Sleng survivor Bou Meng in 2003 what he would say to Duch if given the chance, he began to fish through his pocket and pulled out a photograph of a young woman. It was his wife, who had been killed at the prison. Bou Meng had found her photograph in the prison archive the day before.

"She was tortured and killed," he said, as tears began to well in his eyes. "I would demand the return of my wife and child."

Unlike the Khmer Rouge political leaders who continue to deny knowledge of atrocities and even of Tuol Sleng Prison, Duch is now an evangelical Christian who has stoically accepted his fate, admitted his guilt, and taken responsibility for his actions.

"I am sorry," Duch told Nic Dunlop, the journalist who found him in 1999. "The people who died were good people."

Today, the former Tuol Sleng Prison chief freely admits that many of the prisoners were innocent. But he adds, "whoever was arrested had to die. It was the rule of the party."

However salacious the gory details of the Duch case might be, it is legally and politically simple. Some speculate that the Cambodian government is serving up this easily convicted thug as a sacrificial lamb in the hopes that the other over-80 defendants won't live long enough to see the inside of the courtroom. If nothing else, we might finally learn whether or not there were "Chinese advisors" inside Tuol Sleng.

The announcement of the start of the Duch trial was quickly overshadowed by UN prosecutor Robert Petit's decision to open new criminal investigations and possibly issue more indictments.

It did not take the Cambodian co-prosecutor Chea Leang (niece of Deputy Prime Minister Sok An) long to reject the move on both practical and political grounds. If nothing else, the UN's attempt to broaden this criminal inquiry will serve both as a test of the mixed tribunal's legitimacy and its ability to function as a court.

For many years, Cambodian Prime Minister Hun Sen was firmly in control of these proceedings, but by opening further criminal investigations, the UN has challenged his control. What remains to be seen is whether or not the Cambodian prime minister has the political will to try the Khmer Rouge political leaders.

If nothing else, the Cambodian strongman and his minions at the mixed tribunal are quickly learning a point best made by German political theorist Otto Kircheimer in his classic 1961 study, "Political Justice":

"Justice in political matters is more tenuous than in any other field of jurisprudence, because it can so easily become a mere farce."

Peter Maguire is the author of "Facing Death in Cambodia." A version of this piece first appeared in the International Herald Tribune.

Cambodia genocide trial begins

Tuesday, February 17, 2009
By SOPHENG CHEANG

PHNOM PENH, Cambodia (AP) — A notorious torture center boss went before Cambodia's genocide tribunal Tuesday for its first trial over the deaths of an estimated 1.7 million people at the hands of the Khmer Rouge regime more than three decades ago.

Kaing Guek Eav — better known as Duch, who headed the S-21 prison in Phnom Penh — is charged with crimes against humanity and is the first of five defendants scheduled for long-delayed trials by the U.N.-assisted tribunal. The hearing Tuesday was procedural, and testimony was expected to begin only in late March.

Duch, driven to the hearing in a bulletproof car from a nearby detention center, intently followed the proceedings in a courtroom packed with some 500 people.

"It is not only me wanting justice today. All Cambodian people have been waiting for 30 years now," said Vann Nath, one of less than 20 survivors of S-21, who attended the hearing. "I look at Duch today and he seems like an old, very gentle man. It was much different 30 years ago."

Vann Nath, who survived by painting and sculpting portraits of Khmer Rouge leader Pol Pot, described Duch as a "very cruel man."

Duch, 66, is accused of committing or abetting a range of crimes including murder, torture and rape at S-21 prison — formerly a school — where up to 16,000 men, women and children were held and tortured, before being put to death.

"This first hearing represents the realization of significant efforts to establish a fair and independent tribunal to try those in leadership positions and those most responsible for violations of Cambodian and international law," presiding judge Nil Nonn told the chamber.

Duch has made no formal confession. However, unlike the other four defendants, Duch "admitted or acknowledged" that many of the crimes occurred at his prison, according to the indictment from court judges. Duch, who converted to Christianity, has also asked for forgiveness from his victims.

Duch has been variously described by those who knew him as "very gentle and kind" and a "monster."

"Duch necessarily decided how long a prisoner would live, since he ordered their execution based on a personal determination of whether a prisoner had fully confessed" to being an enemy of the regime, the tribunal said in an indictment in August.

In one mass execution, he gave his men a "kill them all" order to dispose of a group of prisoners. On another list of 29 prisoners, he told his henchmen to "interrogate four persons, kill the rest."

After the fall of the Khmer Rouge, Duch disappeared for two decades, living under two other names and as a converted Christian before he was located in northwestern Cambodia by a British journalist in 1999.

Taken to the scene of his alleged crimes last year, he wept and told some of his former victims, "I ask for your forgiveness. I know that you cannot forgive me, but I ask you to leave me the hope that you might."

His defense lawyer Francois Roux said Tuesday that his client has been in detention for nine years, nine months and seven days, adding, "This situation is unacceptable."

When the communist Khmer Rouge came to power in 1975 after five years of bitter civil war, many of their countrymen thought peace was at hand. But in their effort to remake society, they instituted a reign of terror that lasted nearly 4 years, until ended by an invasion by neighboring Vietnam.

Many victims feared that all the Khmer Rouge leaders would die before facing justice, and getting even one of them on trial is seen as a breakthrough. But there are concerns that the process is being politically manipulated and that thousands of killers will escape unpunished.

Duch's hearing before the tribunal was expected to last two or three days.

The trial comes 30 years after the fall of the Khmer Rouge, 13 years after the tribunal was first proposed and nearly three years after the court was inaugurated.

The tribunal has been plagued by political interference from the Cambodian government, allegations of bias and corruption, lack of funding and bickering between Cambodian and international lawyers.

Some observers believe Prime Minister Hun Sen — a former Khmer Rouge officer himself — is controlling the tribunal's scope by directing the decisions of the Cambodian prosecutors and judges.

The Cambodian side in the tribunal has recently turned down recommendations from the international co-prosecutor to try other Khmer Rouge leaders, as many as six according to some reports. This has sparked criticism from human rights groups.

"The tribunal cannot bring justice to the millions of the Khmer Rouge's victims if it tries only a handful of the most notorious individuals, while scores of former Khmer Rouge officials and commanders remain free," the New York-based Human Rights Watch said in a release Monday.

Others facing trial are Khieu Samphan, the group's former head of state; Ieng Sary, its foreign minister; his wife Ieng Thirith, who was minister for social affairs; and Nuon Chea, the movement's chief ideologue.

All four have denied committing crimes.

Khmer Rouge Figure to Go Before Court

Sunday, February 15, 2009
By Tim Johnston
Washington Post Foreign Service

BANGKOK -- On Tuesday, after more than 30 years of delays and controversy, a member of Cambodia's murderous Khmer Rouge regime will appear in court for the first time charged with crimes against humanity.

Kaing Khek Iev, better known by his nom de guerre, Duch, was the head of the Tuol Sleng interrogation center in the capital, Phnom Penh. More than 15,000 people are believed to have passed through the center, known as Security Prison 21 during the Khmer Rouge's 1975-1979 rule. Only 12 are known to have survived.

Duch, who converted to Christianity in the late 1990s, is the only high-profile member of the Khmer Rouge to have expressed remorse for his actions. The 66-year-old former math teacher will appear for an initial hearing before the U.N.-backed tribunal Tuesday and is expected to take the stand later in his trial, providing an insight into the mind-set behind one of the 20th century's most brutal political experiments.

"We want to understand why this human being did what he did to other human beings," said Youk Chhang, director of the Documentation Center of Cambodia.

As many as 1.7 million Cambodians -- about a fifth of the population -- were killed or succumbed to disease, malnutrition and overwork in the four years before Vietnamese forces removed the Khmer Rouge from power in 1979.

Despite that shocking toll, only five people have been indicted by the joint Cambodian and international legal entity set up after prolonged negotiations between the United Nations and the Cambodian government.

Duch's fellow indictees are Nuon Chea, the movement's deputy leader, known as Brother No. 2 during the regime; Khieu Samphan, the Khmer Rouge president; Ieng Sary, the group's foreign minister; and his wife, Ieng Thirith, who was the social affairs minister. They are all fighting the charges.

Pol Pot, the architect of the regime's brutal policies, died -- apparently of natural causes -- in 1998.

The trials have so far cost more than $50 million and have been dogged by persistent rumors of corruption and allegations that the Cambodian government, which is led by former Khmer Rouge officer Hun Sen, has tried to hold up the process.

A public dispute broke out late last year between Chea Leang, the Cambodian co-prosecutor and a niece of one of Hun Sen's deputies, and Robert Petit, her international counterpart.

The court has investigated an additional six senior members of the Khmer Rouge, and Petit wanted them charged. Chea Leang objected, saying that the investigations should not proceed "on account of Cambodia's past instability and the continued need for national reconciliation."

The court's supporters say they hope the trials will promote reconciliation in their own way, but with a recent survey showing that 85 percent of Cambodians know little or nothing about the process, some critics are asking how much they will mean for ordinary people who still have to live alongside their former tormentors.

First Khmer Rouge trial to begin

Former Khmer Rouge prison chief, Kaing Guek Eav (right), talks with his defence lawyer, Francois Roux (Photo: AFP/ GETTY IMAGES)

The first member of the Khmer Rouge to stand trial for crimes against humanity is to appear in the dock this week.

15 Feb 2009
By Thomas Bell in Phnom Penh
The Telegraph (UK)

But Cambodia's 30-year wait for justice is far from over.

The first defendant, on Tuesday, is Kaing Guek Eav, better known as Comrade Duch, 66, a quietly spoken maths teacher turned chief executioner of the ultra-Maoist regime that ruled Cambodia between 1975-79.

Around 1.7 million people, or a fifth of the population, died in a little over three years of Khmer Rouge rule, executed, tortured, starved or worked to death. Justice has been slow to arrive and the court has been blighted by scandal. Many in Phnom Penh fear that Duch – who was relatively low in the political pecking order- will be the only perpetrator to face justice.

Duch, pronounced "Doik", was the commandant of the S-21 prison, where supposed enemies of the regime were tortured in a former Phnom Penh high school before being driven to the killing fields and clubbed to death.

The prison's surviving records show that 12,380 people were tortured and killed although the true number may be higher. The black and white photographs of the victims exhibited at the site, now a museum, show that many of them were children. Most of them confessed to elaborate fantasies involving the CIA and the KGB before they were slaughtered.

Legal experts consider the case a simple one. Now a born again Christian, Duch has confessed to his role and asked forgiveness. His handwriting is also found throughout the prison's archive, issuing orders to "smash" prisoners.

Only around 12 prisoners are known to have survived S-21. In a unique experiment victims of the Khmer Rouge will be represented in court by lawyers, with the right to ask questions and influence proceedings.

"I want to ask him why he killed his own people, and why did his men torture me?" said Chum Manh, an S-21 survivor. "What motivated them to commit such heinous crimes?"

But even as the first trial gets underway the court's credibility is widely questioned. The tribunal, jointly run by the United Nations and the Cambodian government, was established in 2006 after a decade of strained negotiations.

A confidential United Nations report last August detailed reports of corruption in hiring Cambodian staff which have still not been addressed. The UN has since frozen funding to the Cambodian side of the court.

An even more profound issue is how many people to prosecute. The court's mandate is to prosecute only top leaders and those "most responsible" for atrocities, but that definition could easily include dozens of individuals.

Four more suspects – all members of the top political leadership of the Khmer Rouge – are in custody but their trial has been delayed until 2010. Many court watchers believe the Cambodian government wants to stall procedings until the already frail defendants die rather than rake over sensitive history in court.

The prime minister, Hun Sen, and several members of the government, are former Khmer Rouge cadres. Hun Sen has said that Cambodia "should dig a whole and bury the past". He has consistently opposed conducting more than "four or five" trials.

The international prosecutor, Robert Petit, has prepared indictments against six more suspects. Foreigners involved in the process say more trials are essential to the credibility of the process. But the move has been opposed by Cambodian court officials, prompting renewed accusations of political interference.

Cambodia's KRouge trial to test court's credibility: HRW

Sunday, February 15, 2009

PHNOM PENH (AFP) — Cambodia's UN-backed genocide tribunal must resolve claims of political interference if it is to meet international standards when its first trial starts this week, a rights group said Sunday.

The court will on Tuesday formally open the long-awaited trial of the Khmer Rouge regime's former prison chief, Kaing Guek Eav, better known as Duch, who is the first of five leaders detained by the tribunal.

But the run-up to the trial has been marred by claims that the government is interfering to stop the prosecution of further suspects, as well as allegations that Cambodian court staff paid kickbacks for their jobs.

"Any hint of political manipulation at the tribunal will undermine its credibility with the Cambodian people," said Sara Colm, Cambodia-based senior researcher at Human Rights Watch.

"Until allegations of corruption and improper interference by the government are investigated and resolved, the tribunal?s integrity as a legitimate and independent court will remain in question."

Duch, 66, faces charges of crimes against humanity, war crimes, torture and pre-meditated murder for his role in running S-21, the Khmer Rouge's notorious main prison, during the 1975-1979 regime.

The other Khmer Rouge members awaiting trial are "Brother Number Two" Nuon Chea, former head of state Khieu Samphan, ex-foreign minister Ieng Sary and his wife Ieng Thirith, who was the minister of social affairs.

But rows between international and Cambodian co-prosecutors over international prosecutors' wishes to bring more suspects to trial have dogged the tribunal.

The Cambodian government has been accused of trying to scupper further trials amid fears that it could target former Khmer Rouge members currently in top posts in Prime Minister Hun Sen's administration.

"By allowing political considerations to block additional indictments, the Khmer Rouge tribunal is failing the most basic test of its independence and its credibility," said Colm of the New York-based rights group.

Colm urged stakeholders in the tribunal, including the government and the international community, "to ensure that the court is able to act independently and free of political interference or consideration."

Khmer Rouge Tribunal's Credibility Jeopardized by Corruption and Political Interference on Eve of First Trial

Source: Open Society Justice Initiative

NEW YORK, Feb. 12 -- Ahead of its first trial, the Cambodian government and international actors must immediately address grave flaws in the tribunal set up to try senior members of the Khmer Rouge for crimes against humanity, warns a report released by the Open Society Justice Initiative today.

The long-awaited trial of Kaing Guek Eav (a.k.a. Duch), the commander of the infamous Toul Sleng S-21 Prison where thousands of Cambodians were tortured and killed, is scheduled to begin next Tuesday in the Extraordinary Chambers in the Courts of Cambodia. The tribunal has charged four other suspects in the murder of almost two million people between 1975 and 1979. Recent reports, however, suggest the Cambodian government is attempting to block further indictments.

"The court must demonstrate that it is not a tool of the Cambodian government and ensure a fair and transparent judicial process," said James A. Goldston, executive director of the Open Society Justice Initiative. "The court must show it is relying on law and facts, not politics, in deciding how many suspects will be investigated."

The court has also been plagued by unresolved allegations of corrupt employment practices. A confidential United Nations report in August 2008 detailed complaints of the court's staff paying kickbacks to political overseers. To date, the United Nations and the Cambodian government have yet to put in place a plan to address the problem.

"The court should take aggressive action to respond to the allegations of corruption and provide protection for whistleblowers," said Goldston. "Donor governments supporting the court--including Japan, France, and the United States--should continue to do so as long as the tribunal operates as a court of law."

Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: February 2009 is the latest in a series of regular Justice Initiative publications offering news, analysis, and recommendations on the ECCC. Previous reports and other background information on the court are available here:
http://www.justiceinitiative.org/activities/ij/krt.

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

Efforts to Limit Khmer Rouge Trials Decried

Chan Kimsrun and her child in a photo taken by interrogators at the brutal Tuol Sleng prison in Phnom Penh. (Documentation Center of Cambodia, via European Pressphoto Agency)

January 31, 2009
By SETH MYDANS
The New York Times

PHNOM PENH, Cambodia — At first glance it seems to be simply a numbers game: whether to try 5, 10 or more defendants for the deaths of an estimated 1.7 million people at the hands of the Khmer Rouge three decades ago.

But as a United Nations-backed tribunal prepares to hold its first trial hearing this month, the wrangle over numbers is reinforcing longstanding concerns about the tribunal’s fairness and independence.

The Cambodian government, critics say, is trying to limit the scope of the trials for its own political reasons, a limit that the critics say would compromise justice and could discredit the entire process.

“To me, it’s the credibility of the tribunal which is at stake, its integrity and therefore its credibility,” said Christophe Peschoux, who runs the Cambodia office of the United Nations High Commissioner for Human Rights.

The first defendant is the man with perhaps the most horrifying past: Kaing Guek Eav, known as Duch (pronounced DOIK), the commander of the Tuol Sleng torture house in Phnom Penh, where at least 14,000 people were sent to their deaths. His trial is to open with a procedural hearing, set for Feb. 17, during which more substantive sessions, involving witnesses and evidence, are expected to be scheduled.

Four other defendants, all of whom were members of the Khmer Rouge Central Committee, are also in custody, waiting their turns to face charges on crimes that occurred while they were at the top of the chain of command from 1975 to 1979. As much as one-fourth of the population in Cambodia died from disease, hunger or overwork, or were executed under the Khmer Rouge’s brutal Communist rule.

Those five defendants are enough, Cambodian officials say.

But foreign legal experts counter that within reasonable limits, the judicial process should not be arbitrarily limited.

After a decade of difficult and not always friendly negotiations between the United Nations and the Cambodians, a hybrid tribunal is in place, with Cambodian and foreign co-prosecutors and co-judges in an awkward political and legal balancing act.

Now, even before Duch’s trial gets under way, that balance is being tested.

Last month the foreign co-prosecutor, a Canadian named Robert Petit, submitted six more names to the court for investigation, saying that he had gathered enough evidence to support possible charges. Mr. Petit’s Cambodian counterpart, Chea Leang, objected — not on legal grounds, but for reasons that appear to reflect the government’s position on the trials.

Additional indictments, the Cambodian prosecutor said, could be destabilizing. She said they would cost too much, take too long and violate the spirit of the tribunal, which she said envisioned “only a small number of trials.”

Prime Minister Hun Sen, who bargained hard with the United Nations over the shape and scope of the tribunal, has said that trying “four or five people” would be enough, although there is no formal limit on the number.

Indeed, Peter Maguire, author of “Facing Death in Cambodia,” suggests that Mr. Hun Sen’s plan might be to try only Duch — “a garden-variety war criminal” — and hope the other defendants die before they can be tried.

The additional names submitted by Mr. Petit have not been made public. But people close to the court say that none of them hold a significant position in Cambodia’s current government.

Mr. Hun Sen and several senior members of his government were Khmer Rouge cadres, but experts say they do not fall under the scope of the tribunal and are not at risk of prosecution.

The mandate of the court is to try the top leadership of the Khmer Rouge and “those most responsible” for the crimes — that is, people like Duch, who is accused of overseeing the torture and killing of thousands.

In Cambodia, though, courts do not head off in their own directions without tight control from Mr. Hun Sen or the people around him. Some advocates of the tribunal, called the Extraordinary Chambers of the Courts of Cambodia or E.C.C.C., see it as challenging this top-down control by offering Cambodia a model for a more independent judiciary.

“Some in Phnom Penh are apparently frightened that the E.C.C.C. might actually succeed, that it might serve as an example of accountability that could be applied more widely,” said James A. Goldston, executive director of the Open Society Justice Initiative, a New York-based organization that pursues legal reform.

“With the Feb. 17 start of the first trial fast approaching, now is the moment to show that the court is not a tool of the Cambodian government,” he said.

Most Cambodians are eager to see Khmer Rouge leaders on trial, according to a survey published last week by the Human Rights Center at the University of California, Berkeley.

But the poll found that about one-third of people answering the survey had doubts about the tribunal’s neutrality and independence, perhaps because of their experience with their own corrupt and coerced judiciary.

Confidence in the tribunal has also been eroded by allegations of kickbacks that are familiar in the Cambodian court system. The United Nations has investigated the allegations but has not released its findings.

Now, with the dispute between the two co-prosecutors in the open, the checks and balances of the hybrid court will meet their first major test.

The dispute must now go to a panel known as the pretrial chamber, whose makeup reflects the supermajority structure of the tribunal — three Cambodian judges and two foreign judges.

There is nothing so far to suggest that this process will not work as it should, said David J. Scheffer, a human rights law professor at Northwestern University School of Law who took part in talks to create the tribunal.

The real test, Mr. Scheffer said in a recent article in The Phnom Penh Post, will be whether the judges in the pretrial chamber “step up to the plate and do their duty with the highest degree of judicial integrity.”

“We can all assess that when their decision is rendered,” he said.

Sacrava's Political Cartoon: Net 3

Click on the cartoon to zoom in
Cartoon by Sacrava (on the web at http://sacrava.blogspot.com)

Cambodia's Khmer Rouge tribunal makes slow progress

Dec 17, 2008
DPA

Phnom Penh - When the former chief of the Khmer Rouge's notorious S-21 prison camp was indicted by Cambodia's war crimes tribunal in August, many observers thought 2008 could be marked by real progress at the UN-backed court.

The appearance of Kaing Guek Eav, known by his revolutionary name Duch, in the dock represented for many the culmination of almost 30 years of recriminations against the genocidal regime and more than a decade of negotiations to bring former Khmer Rouge leaders to trial.

But as 2008 draws to a close, the successes of the Khmer Rouge Tribunal this year seem tarnished by unresolved disputes between the international and Cambodian sides of the hybrid court, claims of government interference and ongoing concern over alleged corruption and financial mismanagement.

According to Heather Ryan, an official tribunal monitor with the Open Society Justice Initiative, such problems meant the court's viability and integrity remained tenuous throughout 2008.

'Given the circumstances, the tribunal has made significant progress this year. There has been a series of delays, but the tribunal does seem to be on track to begin the first trial in early 2009,' she said.

'But there has not been enough progress made on allegations of corruption. There have been indications the UN is taking a stronger approach to corruption, but unfortunately this issue has not been resolved,' she added.

Such problems have plagued the Khmer Rouge Tribunal since it was established in 2006 after a decade of negotiations between the UN and the Cambodian government.

Five former leaders currently face trial for their roles in the deaths of up to two million people through execution, starvation, exhaustion and disease during the Khmer Rouge's reign between 1975 and 1979.

The regime sought to transform Cambodian society according to an aggressive form of agrarian socialism by executing members of the educated classes, evacuating the major towns and cities and forcing all citizens into collective agricultural labor.

In economic, political and psychological terms, Cambodia has never quite recovered. The all-encompassing nature of the Khmer Rouge's genocidal program has also meant the scope of the tribunal's investigation has been open to criticism.

In early December, international co-prosecutors made public a disagreement with their Cambodian colleagues over plans to extend the number of suspects beyond the five already in detention.

The Cambodian co-prosecutors reportedly argued the five investigations were sufficient - a position maintained by the Cambodian government - which provoked accusations that government interference was influencing the domestic side of the court.

'Concerns about government interference have focused on the reluctance of the court to disclose the identities of additional people who may be investigated. And there is concern the co-prosecutors' reluctance to extend the investigation might not be based on evidence but rather government interference,' Ryan said.

'How this is resolved and whether more investigations go ahead will be a real test for the integrity of the court.'

But tribunal spokesman Reach Sambath said there were sufficient measures in place to ensure neither the Cambodian government nor the UN could interfere with the court's actions.

'Although the court was created by the UN and the Cambodian government, it works independently,' he said.

'Both sides have made it clear they want the tribunal to be independent, and the Cambodian Government in particular has said it wants the tribunal to move by itself and with integrity,' he added.

He said that throughout the year the court had worked to address allegations of corruption and mismanagement, and administrative restructuring meant the tribunal's processes had become more transparent.

'These measures have ensured the tribunal operates in a transparent way and has helped it to make a number of significant steps this year, including several pre-trial hearings since February,' he said.

Ryan agreed the administrative restructure had 'made a big difference' to the court's transparency and efficiency, but said the tribunal's precarious financial state meant its future was uncertain.

The UN earlier this year froze international donor funds until the court produced a review of allegations that members of the Cambodian side of the court had been receiving kickbacks. The review has since been completed but has not yet been presented.

'At this point there is not the financial security to ensure the court will definitely remain viable,' Ryan said.

'Without secure funding in the bank, it is possible the court might not be viewed as a reputable institution. These funding issues also impact on recruitment and may limit the tribunal's capacity to attract talented workers to replace senior staff who have.'

Reach Sambath agreed funding 'was always a problem' for the tribunal, but said negotiations with international donors were under way to ensure the court would remain financially viable in 2009.

Cambodian war crimes trial begs for more cash

Wednesday, 26 March 2008
The Independent (UK)

Officials from the Cambodian war crimes tribunal are involved in a desperate fight to ensure the court retains its credibility and the funding it requires to bring justice to the "killing fields" crimes of a generation ago.

Three members from the UN-backed court will answer questions tomorrow from donor nations, amid allegations of corruption and political interference.

Convincing the donors of the transparency of the proceedings is vital if the tribunal is to obtain more than $100m (£50m) in extra funds to try the surviving leaders of the Khmer Rouge.

"They are going there to answer questions and make the situation clear... to tell the truth," said Reach Sambath, a spokesman for the tribunal. "They are going as delegation to say what is going on at the court." The tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia, was established with UN support to try those remaining members of the Khmer Rouge regime whose four-year rule resulted in the deaths of up to1.7 million people.

Between 1975, when the Maoist-inspired force seized power and 1979 when it was ousted by invading troops from Vietnam, almost a third of the population was either murdered or died from disease or starvation.

One of the most pressing problems facing the tribunal has been that of funding. While the tribunal was set up with an initial budget of about $56m, continued delays and problems have forced officials to ask for an additional $114m. "The original budget was just for three years until mid-2009 and we need to envisage going a bit longer than that," its chief spokesperson, Helen Jarvis, said last year.

Directly linked to the battle for funds are accusations of corruption. Last year, the New York-based Open Society Justice Initiative claimed that Cambodian judges and other staff at the court had paid off government officials for their positions at the tribunal. The claims were dismissed by the Cambodian authorities.

What does not appear in doubt, however, is that the Cambodian government has placed many obstacles in the way of the tribunal, apparently concerned about members of the Khmer Rouge who have served as cabinet ministers.

So far, five former members of the regime have been detained by the court and the first of the trials is expected to begin later this year. The five prisoners are Kaing Guek Eav, better known as Comrade Duch and the former head of interrogations at the notorious Tuol Sleng jail, former president Khieu Samphan, foreign minister Ieng Sary and his wife, Ieng Thirith, and Nuon Chea, the deputy to "Brother Number One" Pol Pot.

Most of the prisoners are elderly and frail and there is concern the process be completed as soon as possible in order to try to offer a degree of resolution to a country scarred by the horrors of its recent past.

Duch, now 66, took charge of the torture and interrogation of about 20,000 people who were sent to Tuol Sleng. All but a handful were taken to the killing fields and killed, often by being beaten with a shovel.

Ms Jarvis said the money currently allotted for the tribunal was expected to run out by the end of the year. The tribunal's revised budget proposal calls for the additional money to expand its staff and allow it operate until March 2011.

Cash for Cambodians [-UNDP's lack of oversight of the Khmer Rouge war-crimes tribunal]

September 25, 2007
The Wall Street Journal (USA)

The United Nations Development Program is already under scrutiny for gross irregularities in its programs in North Korea, from which it was forced to pull out earlier this year. Now there's another scandal to add to the list: UNDP's lack of oversight of the Khmer Rouge war-crimes tribunal, for which it oversees a significant share of the funding.

The complete details of an audit examining hiring practices haven't fully come to light yet, thanks to the UNDP's refusal to make the audit public or even share it with donors. But we've seen an early draft, and can start to fill in the outline of what's going on. It isn't pretty.

The Khmer Rouge war-crimes tribunal is split into halves: an international section overseen and funded by a U.N. trust fund, and a Cambodian-run section, the lion's share of whose funds are under UNDP oversight. The local section is called the Extraordinary Chambers in the Courts of Cambodia (ECCC) and it appoints all local staff and Cambodian judges, among other things. Last October, the New York-based Open Society Justice Initiative, which has been monitoring the trials, raised questions about hiring practices on the Cambodian side.

The UNDP isn't administering small change, so allegations of misconduct with its public funds must be taken seriously. Of the $13.3 million budgeted for the Cambodian side of the tribunal for its three-year duration, the UNDP oversees $5 million from a 29-country donation and one million euros ($1.4 million) from the European Commission. The rest is provided by the Cambodian government, or pledged directly to the Cambodian government by individual countries, which to date have delivered only $1 million.

To its credit, UNDP swiftly hired a small Malaysian consulting company, Candide Consulting, to investigate the allegations. Candide conducted its work from January 29-February 8 and returned again in March, when it was joined by auditors from the U.N. Office of Audit and Performance Review. As U.S. law professor John Hall reported on our op-ed page on Friday, the initial findings were stark.

The auditors discovered inflated salaries and significantly increased staffing levels to the tune of $357,000 over the ECCC's original budget projections in 2004. The ECCC couldn't justify the extra hires and UNDP's overseers weren't even aware of the increase. The auditors also unearthed a raft of unqualified workers appointed without competitive hiring practices. It was refused access to the personnel files of 28 staffers appointed directly by the Cambodian government.

Even worse, the auditors uncovered a fundamental conflict of interest at the oversight board that is supposed to monitor the ECCC's activities. The 12-member Project Board is composed of personnel from UNDP, ECCC, the European Commission, and the U.N. Department of Economic and Social Affairs. According to the draft audit report -- and confirmed to us by UNDP -- the board overseeing the ECCC is currently chaired by the ECCC itself. How convenient.

The transgressions were so egregious that the auditors said this: "If the Cambodian side does not agree to the essential measures that are... necessary to ensure the integrity and success of the project, then serious considerations should be given to withdrawing from participation in the project altogether." And: "All the recruitments of staff made by ECCC to-date [sic] should be nullified and a new recruitment exercise launched."

Translation: The ECCC's hiring practices, overseen by the UNDP, are so flawed that the UNDP should consider starting from scratch. That's a strong finding, given that it took a decade to put the war-crimes tribunal together in the first place -- and that this same court is the one that's supposed to administer justice for the more than one million Cambodians slaughtered by the Khmer Rouge in the late 1970s.

* * *

There could be more to come. In February, the Open Society Justice Initiative called for an investigation into allegations of kickbacks paid by Cambodian judges and court officials to their superiors. If true, that goes to the heart of the court's credibility since Cambodian judges form a majority on all of the judging panels of the war-crimes tribunal. The draft audit did not address these charges.

So what exactly did the final audit say? Only the UNDP -- and the Cambodian government -- know. The Project Board issued a press release saying it discussed the findings at its first meeting in June. But even the board was not allowed to see the final audit report. "The internal audit is not shared except between UNDP and the member state," a UNDP official in Phnom Penh who prefers to remain anonymous tells us in response to a question about whether the board saw the report. So much for the UNDP's responsibility to the European and U.S. taxpayers putting up the money.

ECCC spokeswoman Helen Jarvis says that the Cambodian side of the tribunal has accepted "all of the recommendations" of the audit and has even revised the "personnel handbook." "The main goal is spelling out in advance what procedures will be followed in the court and in the administration," she says. It's puzzling that this wasn't done from the start.

We're told that the Project Board plans to issue a statement today that will outline the steps the UNDP is taking in response to the audit report. That's a good first step. But if the UNDP really wants to clear its name, it would release the audit to the public -- who's paying for all of this, anyway.

Murky hiring practices spark graft allegations at KRouge tribunal

PHNOM PENH (AFP) - Murky hiring practices at Cambodia's Khmer Rouge tribunal forced the United Nations to order an audit of the court's human resources section amid reports of graft, the agency said Wednesday.

"Various reports in the latter part of 2006 raised concerns about transparency of hiring procedures of the ECCC," the UN Development Programme said in a statement obtained by AFP.

The tribunal, known officially as the Extraordinary Chamber of the Courts of Cambodia (ECCC), has again come under fire after a legal watchdog said last week Cambodian officials were being forced to kick back wages to the government in order to secure their jobs.

"UNDP takes such matters very seriously and, in response, immediately commissioned an internal audit of the ECCC," the agency said.

"Appropriate action will be taken to respond to the internal audit recommendations," it added.

Tribunal officials have vigorously denied the corruption charges, and have cut ties with the New York-based Open Society Justice Initiative, the legal group making the claims.

The group had previously offered funding to train Cambodian jurists.

But the graft allegations are the latest challenges to the credibility of the court, which is also bogged down in disputes between Cambodian and UN judges that make it unlikely the tribunal will begin its trials on schedule.

Some international jurists are reportedly threatening to quit the tribunal, and when asked if the corruption scandal could sink the trials entirely, one source close to the court told AFP: "Absolutely."

Most of the tribunal's 56 million-dollar budget comes from donors, with Cambodia so far contributing only a fraction of its 13-million-dollar share.

The willingness of the international community to foot the bill has repeatedly come into question amid allegations of government foot-dragging and political interference.

Up to two million people died under the 1975-1979 Khmer Rouge regime, which abolished religion, property rights, currency and schools.

Leader Pol Pot died in 1998, and so far only one potential defendant is in custody.

Cambodia and the United Nations agreed in 2003 to a framework for a joint tribunal to try former regime leaders. Trials were expected to start in mid-2007, but will likely be delayed.

Long road back to the killing fields

Cambodian workers prepare a collage of skulls of Khmer Rouge victims at the Toul Sleung Genocide Museum in Phnom Penh. (ANDY EAMES / AP FILE PHOTO)

Cambodia | Canadian prosecutor faces special challenges in trying to bring Khmer Rouge to justice

Feb 11, 2007
Olivia Ward
Toronto Star (Ontario, Canada)

In Cambodia, where more than 1 million people perished at the hands of the Khmer Rouge, a quiet struggle is going on that will determine the fate of the survivors: whether they will receive justice in their lifetimes or be swept to the margins of their troubled country's history.

At issue are the rules for prosecuting suspects under a joint national and international tribunal sponsored by the United Nations and aimed at trying senior perpetrators of the crimes that took place in Cambodia's notorious "killing fields" between 1975 and 1979.

Cambodian and international judges are trying to hammer out a compromise between two very different systems of law so that trials can go ahead. And the man caught in the middle is the tribunal's Canadian prosecutor, Robert Petit.

"They have to come up with a comprehensive set of rules so everyone will be reading from the same book," Petit says in a phone interview from Phnom Penh, where he has been based for the past seven months.

Petit, a 45-year-old Montrealer and veteran of war-crimes tribunals in Rwanda, Sierra Leone, Kosovo and East Timor, was chosen by the United Nations to prosecute the trial, alongside Cambodian counterpart Chea Leang.

Petit has cases ready to launch and is aware that the top Khmer Rouge leaders are aging and dying. But he says nothing will happen until the Cambodian and international judges resolve their differences.

"Legally speaking, nothing stops the process from going on. But with the state of national law, and the differences in interpretations, we must wait until there is an agreement."

If that doesn't happen when the Cambodian and international judges meet in a plenary session next month, the outlook for the trials – and prospects for the victims – will be clouded. Reports say the international judges may quit in frustration.

Human Rights Watch and other critics have accused the Cambodian government of interfering in the tribunal and delaying prosecutions. Prime Minister Hun Sen, who has agreed to the trials, was a former member of the Khmer Rouge but not at a level of command responsibility. He is not considered at risk of prosecution.

Human Rights Watch has called for open hearings, appointment of independent defence counsel and other international standards of justice that the Cambodian authorities may not be eager to embrace.

And, rights groups say, the government, though paying lip service to the trials, has appointed judges with close ties to the ruling Cambodian People's Party.

"Hun Sen supported the creation of the tribunal to a point, but he has heavily influenced who the judges were," says Noah Novogrodsky, director of the International Human Rights Program at University of Toronto and a visiting professor at Georgetown University's law faculty. "Cambodian politics infect the court."

Critics fear that the government will try to filter out information it does not want made public, destroying the credibility of the court as well as the victims' chances of achieving justice.

In contrast with other war-crimes sites where he has worked, Petit says "there is a striking lack of understanding on the part of the victims about why this happened to them.

"At the time, the reasons weren't clear, and since then there has been no education to make it any clearer. Now, there is a whole generation that wonders why a father, grandfather or grandmother died."

Led by the late dictator Pol Pot, the Khmer Rouge installed a reign of terror based on a radical communist ideology that called for elimination of educated, religious and middle-class people, including those who managed the country's basic services.

The international judges are now faced with a dilemma. If they soften their stance on the rules of justice, the exercise could become a travesty. But if the Cambodians refuse to bend, the trials might never proceed.

"If the tribunal ends up being an institution where the defendants don't enjoy the presumption of innocence, the judiciary is bent on revenge rather than evidence and there is an effort to scapegoat one part of the political community, it could turn into retributive justice," says Novogrodsky, who has helped train Cambodians to take part in the tribunal.

"That would not be restorative for the country as a whole."

But Petit is uneasy with the symbolic weight that has been heaped on the trials.

"The worst thing we can do is to make the criminal law process something it is not," he says. "We are not here to write history. Those things are better dealt with by truth and reconciliation commissions, education and government programs. Our role is very black and white – to find someone innocent or guilty beyond a reasonable doubt."

But he admits that "we are conscious that this is supposed to help people come to terms and move on from these dramatic and tragic events. Courts have a limited mandate, but they have to make a contribution on the personal, national and international level."

The tribunal has been given a three-year lifespan. And it has to work on a tight budget of $56 million. Canada has donated $2 million, but Cambodia says it may not be able to meet its $13.3 million contribution.

"We are working with limited resources and the smallest staff I have seen (in a war-crimes court)," says Petit. The tribunal includes 17 Cambodian and 12 international judges and prosecutors.

By comparison, the International Criminal Tribunal for the Former Yugoslavia has a budget of more than $150 million a year and a total staff of 1,200.

A criminal prosecutor in Montreal for eight years, Petit made his first trip overseas in 1995, applying for a post in the International Criminal Tribunal for Rwanda and ending up as a prosecutor of some of the most notorious leaders of the 1994 genocide. He worked as a legal adviser with the UN mission in Kosovo, a prosecutor with the UN in East Timor and a senior trial attorney with the Special Court for Sierra Leone.

In Cambodia, Petit has not released names of the prospective defendants, but a half dozen former Khmer Rouge officials are widely believed to be on the list, only one of whom is in custody.

Despite the daunting challenges, the prosecutor hopes trials will get underway this year.

"At the end of the day," he says, "I would like to be able to tell the people of Cambodia that, with the resources we have, we have managed to prosecute people who should be brought to justice, and in a sufficient number to be credible

"I hope Cambodians will feel that the prosecutions, and the judgments rendered, will help them understand what happened and that there was justice done. And I hope we will leave some kind of imprint on the justice system, so it can also move forward in a better way."