Saturday, January 10, 2009

Time to Close the Khmer Rouge Tribunal

I have long wanted to believe in the work that is being done at the Extraordinary Chambers in the Courts of Cambodia (ECCC). As an American, I have always felt a sense of responsibility for Richard Nixon’s role in helping bring the Khmer Rouge to power. I wanted to help atone for the national shame of America continuing to recognize the Khmer Rouge as Cambodia’s legal representative at the UN until 1992 – fourteen years after Cambodia was liberated by the Vietnamese army.

During the Winter of 2007-2008, I worked as an intern in the Victims Unit at the ECCC. I had the privilege of being there just as the Unit first went into operation, and of seeing the first victims in the history of international criminal law who were allowed to participate as partie civille – to appear before the Court to tell their stories and demand justice for themselves and the nearly two million people slaughtered by the Khmer Rouge. I have written an article arguing that the ECCC’s approach to victims offers a model for a more meaningful form of international criminal tribunal. For the curious, the article also offers the non-web-based citations for the arguments I lay out below. My time working with victims at the ECCC, hearing their stories and watching the hope with which they looked to the Tribunal’s work was one of the most formative experience of my life. It reaffirmed all that international justice could do for a country, even decades later, to promote healing, and end impunity for some of the worst killers of our time.

But today, I have finally reached a conclusion.

For the sake of the Cambodian people, who deserve more than a billion-dollar show trial, and for the United Nations, which cannot afford to continue lending its approval to illegitimate, ineffectual cosmetic efforts, the ECCC should be closed. Any verdict this Court enters will only provide fodder for those who claim that International Justice does not and cannot work.

Last week, the Cambodian co-prosecutor (a peculiar, parallel innovation of the ECCC), Chea Leang, tried to block the UN side of the Court from investigating more than the five suspects currently in custody. The decision smacked of political motivation and seemed designed to prevent investigation of high-ranking members of Cambodia’s modern-day government who were, themselves, Khmer Rouge leaders. Worse, the Co-Prosecutor did not even attempt to justify her opposition based upon principles of international law. Rather, she argued that:

“investigations should not proceed on account of (1) 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."

An actual legal argument would run directly counter to her assertions. The law establishing the ECCC cites as its purpose

"...to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979."

This seems certainly to encompass the idea that, if further suspects who were “most responsible,” remain at large, then it is the Court’s job to bring them to justice.

Therefore, the “spirit” of the law to which the Cambodian Co-Prosecutor has referred is more likely the spirit that has informed the Court’s work since the early stages of negotiation – to allow the Cambodian government to conduct a show trial, for its own political benefit, and with the support, approval, and funding of the United Nations.

Not even a single suspect has yet been brought to trial at the ECCC. More money is now being spent appealing this fight between the UN and Cambodian prosecutors to the Court’s judges, who themselves are besieged by accusations of corruption and political motivation.

The Court has been crippled from the beginning by an ill-advised “hybrid” agreement that gives the Cambodian government unprecedented powers to interfere with and act as the puppet master behind the Tribunal’s actions. The structure of the Court seems designed to prevent the Tribunal from bringing anything but selective retribution to a few hand-picked suspects that the Prime Minister, Hun Sen, has decided should shoulder the blame for the Khmer Rouge. This leaves the Prime Minister, himself a former member of the Khmer Rouge, free to claim that the book has been closed on the past and to consolidate his own power, without having ever been called to the bar for his own crimes or those of his advisors.

The first efforts to try the Khmer Rouge at the international level began on April 11, 1994, with the adoption of resolution 1997/49 by the UN Human Rights Commission. The resolution requested that the Secretary General “examine any request for assistance in responding to past serious violations of Cambodian and international law as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability.”

The initial proposal was to create a Truth and Reconciliation Commission similar to those used in South Africa, since most Cambodians had expressed, not a desire for retribution, but rather for answers. This was unacceptable to Hun Sen, who feared that too much “truth” could threaten his own power. And so, Cambodia refused to accept the UN recommendation.

This was the point at which the United Nations should have seen the writing on the wall.

Instead, likely driven by a sense of guilt for having sat idly by during the Khmer Rouge era, negotiations between the UN and Cambodia continued, now based on the assumption of creating a more traditional, retributive model of justice.

In the second attempt at a solution, the UN assembled a group of experts in July of 1998 to assess the feasibility of a more traditional court. The group published its recommendations on February 18, 1999, calling for the creation of an ad hoc international war crimes tribunal modeled on the International Criminal Tribunal for the former Yugoslavia. This system, which was based on the World War II trials of the Nazis at Nuremburg, would have created a separate court in Cambodia – one that applied established standards of international law, administered by impartial international judges.

The Cambodian Government rejected this proposal, as well. It insisted on a court based on Cambodian law, with a large role for Cambodian nationals, especially as judges and co-prosecutors.

Truth and reconciliation? No. Too risky.

International standards and impartiality? Nope. Still too risky.

And so, four years of protracted negotiations between the UN and the Cambodian Royal Government resulted in a “hybrid” court based, not on true international law, but on Cambodian domestic law, with international standards being applied only to fill in the gaps. Worst, the UN capitulated to a government demand that each level of the Court (pre-trial through the Supreme Court) would contain more Cambodian judges than international judges.

Not surprisingly, accusations of corruption at the Tribunal have existed from its inception.

Yesterday, more allegations emerged – this time that the Cambodian judges themselves paid kickbacks to the government to secure their positions on the bench. The defense lawyers for Nuon Chea, the Khmer Rouge’s “Brother Number Two,” further allege that these judges continue to pay a portion of their monthly salaries to the Cambodian government officials who awarded them their jobs.

This would be bad enough, and would lead most observers to conclude that enough is enough. But even more disturbing is the reaction of the judges, who have not only denied the allegations, but have threatened to take legal action against the defense attorneys who brought these allegations to light. In a statement, the judges said that:

"We would like to state that if the above accusation stems from bad faith in putting the
blame on the judges, we reserve the right to legal recourse against any individuals who have provoked such a problem."

So now we have allegedly corrupt judges in a structurally flawed system threatening to sue the defense attorneys. One would think that the United Nations, in negotiating the formation of this Court, would have put in a provision that said, for example, that judges cannot sue defense lawyers, perhaps because this would undermine the Court’s credibility.

Well, it turns out that they did. Article 21 of the Agreement Between the United Nations and the Royal Government of Cambodia lays this out in no uncertain terms. The article provides that:

"The counsel of a suspect or an accused… shall be accorded… immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed by them in their official capacity as counsel. Such immunity shall continue to be accorded to them after termination of their functions as a counsel of a suspect or accused."

The only possible caveat is the last sentence of that Article, which states that all counsel must “act in accordance with the present Agreement, the Cambodian Law on the Statutes of the Bar and recognized standards and ethics of the legal profession.”

There are only three possible explanations for the Judges’ actions. The first is that the Judges simply did not read or do not understand the basic structure of the Court and therefore cannot understand that immunity for defense counsel is central to a fair trial. I wish that I could dismiss this first option out of hand as being ridiculous, but my own experiences and the actions and written opinions of the court (which are often based on very shaky legal reasoning) make that impossible.

The second option is that they have read it, understood it, and simply do not care. This implies that the Cambodian judges feel free to violate a basic cornerstone of their agreement with the UN and expect the UN will be too timid to challenge them on it. Unfortunately, all actions up until the point indicate that they are probably correct.

The third, and most charitable option, is that the judges truly believe they can make a case that, by bringing accusations of judicial corruption to light, defense counsel have acted in “bad faith” and violated “recognized standards and ethics of the legal profession.” Under the circumstances, given the continuing allegations of corruption, it seems impossible that this argument would fly in any court BUT the ECCC.

The UN seems to believe, essentially, that it needs to finish what it started with the ECCC. One reason is for the sake of the victims. But wasting millions of dollars running a corrupt court in a poor country only adds insult to the injury the Cambodian people have already suffered. More likely, its persistence in not pulling the plug on the Court comes from a desire to save face. But this week, as its long-awaited ceasefire resolution was promptly ignored by Israel and Hamas, the UN cannot make a straight-faced argument that continuing to lend its name to an ineffectual, corrupt institution can do anything but further damage its reputation.

I want to be clear – the international staff with whom I worked at the ECCC were some of the most intelligent, dedicated people I have ever known. They want to do the right thing. But it is impossible to play an honest hand in a crooked card game, and the structure of this Court has given the Cambodian government unprecedented ability to manipulate both the judicial process and the United Nations as a whole.

It would be better to stop pouring money into a judicial farce and invest it in improving the lives of the victims of the Khmer Rouge. If the UN continues to lend its name to this poor excuse for a justice system, it could do incalculable damage, not only to the Cambodian people, but to future, legitimate efforts in international criminal law.

4 comments:

  1. I was wondering when I'd see you writing this article. You're right. The people we worked with deserve more than a show trial rife with manipulation and corruption.

    Kenny Rogers is right again - you got know when to hold em, know when to fold em.

    Let's have a conversation about what could be done. And then let's go back.

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  2. Oh team Cambodia I just had to write when I saw Stacey up at the plate...!

    Opinions, opinions....it's difficult. A process. The value of the tribunal is and will continue be unknown - it is here, and it is now. and who makes action, then paints the picture and then tells the story is somewhat yet to be seen. at this point I wonder, who's best interest is it in for the UN to withdraw? i am stuck on the fact that this juncture is time sensitive and that quitting at this point seems a little cut-throat. entirely non-cambodian style. we'll see what happens. or we won't. we'll see what we see and call it what happened...!

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  3. I agree with the sentiment of this being a time-sensitive juncture, especially with the Court announcing (finally!) that an actual trial for Duch may begin soon. But then again, when is it NOT going to be time-sensitive? Given the delays we have seen so far, and especially now that there will be parallel proceedings on graft charges in the domestic courts, it doesn't seem like there will ever be a "good" time to end the process. My fear is that such thinking will allow a bad system to simply continue getting worse because there is never a "good" time to stop it.

    This echoes much of what I wrote in the original post, but I do believe that it would serve all parties for this to end now. One of the alleged virtues of the hybrid system, when it was proposed, was that by bringing in Cambodian domestic law and judges, the UN would be "setting an example" for the notoriously corrupt domestic courts, and that this would then inculcate them with "international standards" and help improve the domestic system after the ECCC is closed. So far, it seems that rather the opposite has been the case -- rather than raising the standards of the Cambodian judiciary, the UN has allowed its own standards to be continuously lowered. My fear is that, not only will the Cambodian people not get the justice they deserve, but they will get a domestic judiciary whose corrupt practices, rather than having been improved by UN involvement, have been tacitly approved by it. I really believe that waiting to see what happens can only weaken both sides, in the end.

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  4. ah. well I was more attached to my maunderings on the perception of value. but time junctures. fair enough. un standards...hmm...
    jamie i appreciate the discussion of this topic. WRITE ON! And keep well!

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