Into the Dark Heart of the Khmer Rouge Tribunal

EDITORIAL NOTE: THIS IS THE INAUGURAL ESSAY FOR THE "GROTIAN MOMENT: CAMBODIA GENOCIDE TRIALS BLOG." OUR PANEL INCLUDES EXPERTS, LIKE PROFESSOR JOHN HALL, WHO ARE HIGHLY CRITICAL OF THE CAMBODIA TRIBUNAL, AND THOSE WHO SUPPORT THE PROJECT, BELIEVING THINGS ARE PROGRESSING AS WELL AS COULD BE EXPECTED IN LIGHT OF THE MANY CHALLENGES. IT IS OUR HOPE THAT THIS INITIAL ESSAY WILL LAUNCH A SPIRITED DEBATE, BOTH AMONG OUR "GROTIAN" BLOGGERS AND THE PUBLIC AT LARGE -- TO APPEAR IN THE COMING DAYS AND MONTHS ON THIS WEBSITE.

John A. Hall

As I noted in my Wall Street Journal op-ed on September 21 (“Yet Another U.N. Scandal,” A.15), the co-investigating judges at the U.N.-sponsored Khmer Rouge tribunal in Phnom Penh have now formally detained Nuon Chea, “Big Brother Number Two.” Nuon Chea joins Duch, the former head of the prison at Tuol Sleng, who has been in the custody of the tribunal since August. These steps indicate that the Khmer Rouge tribunal is, at some level, moving towards a successful resolution of its mandate. Despite many concerns, the prosecutors and co-investigating judges are clearly achieving something quite significant. Most observers with any semblance of humanity are, of course, delighted by the prospect that perpetrators of some of the worst human rights abuses of the Twentieth Century are – after a long and shameful delay– finally going to be brought to justice.

Unfortunately, this optimism – though understandable - may be somewhat premature. Indeed, the Cambodian side of the tribunal in Phnom Penh has been found to be so flawed, so hopelessly corrupt, and human resource management so untrustworthy, that OAPR and independent auditors have even recommended that serious consideration should be given to the U.N. withdrawing from the tribunal unless significant procedural and managerial changes are adopted by the Cambodians.

As is well known, after nearly a decade of acrimonious negotiations, the U.N. and the Cambodian government established a hybrid tribunal within the Cambodian court system – “hybrid” because it combines international and Cambodian law, and employs a mix of Cambodian and international judges, lawyers, and staff (resulting in what has come to be seen in terms of almost competing camps: the “Cambodian side” and the “international side” of the ECCC). Unfortunately, the U.N. agreed to demands made by the Cambodian government that Cambodian judges play a decisive and indeed dominant role. This is in sharp contrast to other U.N.-sponsored hybrid tribunals, where the negotiated structure ensured that it would be the international judges, rather than the local jurists, who would have the upper hand. Further, overall management of the tribunal is largely the responsibility of the Cambodian side.

Critics of the Khmer Rouge tribunal’s hybrid nature have expressed reservations as to the wisdom of establishing a tribunal that gives a dominant role to Cambodian judges, lawyers and administrators. These concerns stemmed, of course, from the belief that the Cambodian government is not to be trusted, and that the Cambodian judiciary and legal system are corrupt, inefficient, and poorly administered. Perhaps the greatest threat to the legitimacy of the tribunal is the lack of independence of the Cambodian judges. There are worrying signs of governmental intrusion into the inner-workings of the ECCC: in August the Cambodian co-investigating judge, You Bun Leng was elevated by the Cambodian government to become president of the Cambodian Court of Appeals. This was in explicit violation of the rules governing the tribunal, which require that judges appointed to the tribunal must serve until their duties at the tribunal are completed, a rule intended to limit interference by the Cambodian government. Only after an aggressive lobbying campaign by the international side did You Bun Leng agree to remain at the tribunal. How this will play out in the future remains unclear.

As I noted in my op-ed, there are other reasons to believe the tribunal may be seriously flawed. New York-based Open Society Justice Initiative (OSJI) has raised allegations of a lack of transparency in the hiring practices for Cambodian appointees to the tribunal, and reported that the Cambodian employees – including the judges - are required to kick-back part of their salaries to senior Cambodian tribunal personnel. In response to OSJI’s allegations, the Cambodian management of the tribunal attempted to unilaterally ban OSJI lawyers from any contact with the tribunal, its staff, and its facilities.

OSJI’s allegations were an embarrassment to UNDP, which is responsible for administering a significant portion of the three-year $13.3 million national program budget for the Cambodian side of the tribunal. In response to OSJI’s allegations, UNDP brought in outside auditors to work with OAPR to assess human resources management in the Cambodian side of the tribunal. The resulting Special Audit has not been publicly released by UNDP. Indeed, journalists and observers noted to me that while the tribunal is typically highly porous, this particular document was impossible for them to obtain. This lack of transparency on an issue of such key importance to the tribunal is deeply worrying. Indeed, one U.N. appointee indicated to me that UNDP’s determination to suppress the report is likely to become “a massive public relations fiasco.” Indeed.

As I noted in my op-ed, the draft special audit which I saw makes for grim reading. The auditors found unreasonably inflated pay scales; lack of transparency in hiring practices, and the appointment of Cambodian staff lacking the qualifications required for their positions, while at the same time the international managers appointed by the U.N. have been restricted from participating in the performance evaluations of the Cambodian staff who work under them. The independent auditors concluded that the hiring process was so deeply flawed that all the Cambodian appointees to the tribunal should be fired, and a new, transparent and rigorous recruitment process initiated. This is an extraordinary recommendation given that the tribunal is half-way through its 3-year mandate, and reflects the seriousness of the auditors’ concerns. Even more shocking was the fact that the auditors recommended that serious consideration should be given to withdrawing entirely from the tribunal unless the Cambodian side agrees to specific measures essential to the future integrity of the tribunal.

It will be interesting to see how the ECCC, the U.N., donor nations, and the broader diplomatic community react to the problems surfacing at the tribunal. It will also be interesting to see what else may emerge in the coming weeks and months. We are all, of course, now paying careful attention to the events unfolding in Phnom Penh. Hopefully, through thoughtful participation in this Blog, we can participate in an on-going conversation that will include the various stakeholders as well as scholarly commentators. In this way we can not just comment on, but also perhaps positively influence, the future of the tribunal.

Posted @ 1:45 AM | Experts Debate the Issues: Khmer Rouge Genocide Trials