Global Policy Forum

Cambodia Steps Closer to Justice


By Niko Kyriakou

Inter Press Service
March 31, 2005

United Nations member states have pledged the lion's share of funding needed to launch an international tribunal to prosecute a small number of surviving leaders of the Khmer Rouge, the infamous communist regime responsible for the massacre of an estimated 3 million Cambodians - or one-quarter of the country's population in the late 1970s. Countries attending Monday's fundraising conference here pledged US$38.4 million, about $5 million short of the sum the UN has agreed to raise. But Secretary General Kofi Annan told donor countries the amount exceeded his expectations and voiced confidence that the UN would be able to raise the balance.

"The crimes committed under the Khmer Rouge were of a character and a scale that it is still almost impossible to comprehend," he said. "The victims of those horrific crimes have waited too long for justice. By your generous contributions today you can send a message that, however late and however imperfect, impunity will not remain unchallenged." Annan explained that court proceedings scheduled for mid-2005 could not start until the UN's full contribution of $43 million had either been pledged or contributed. He especially thanked Japan, whose pledge of $21.6 million - already paid in cash - is just over half the UN target.

France made the second-largest pledge of $4.8 million, followed by the United Kingdom's $2.8 million and Australia's $2.3 million. Sean Visoth, who spoke for the Cambodian delegation, told Inter Press Service that the announcement of pledges totaling $38 million was "encouraging". But in a written statement, Sok An, chairman of the Royal Government Task Force for the Khmer Rouge Trials, asked the international community also to help the Cambodian government cover half of its $13.3 million obligation, meaning that about $12 million in pledges would still be needed before work to set up the court can begin.

The United States refused to donate, saying it had already given $7 million to Cambodia over the past decade for documentation and research for the crimes committed there. The US has been criticized for indirectly fueling Khmer Rouge leader Pol Pot's rise to power through its bombing of Cambodia in the early 1970s and for providing Central Intelligence Agency support for the Khmer Rouge in the 1980s to fight the Cambodian puppet government installed by North Vietnam at the time. In the 1980s, the US also successfully exerted pressure on the United Nations to give aid to the Khmer Rouge regime.

Since 1997, the Cambodian government has sought the UN's help to create an international tribunal to bring about a dozen living suspects, most in their early 70s, to justice. Pol Pot, Brother No 1 of Democratic Kampuchea (the Khmer Rouge's name for Cambodia), died in 1998, and the opportunity to try those who planned, directed or carried out serious crimes is slipping away. Surveys by the Center for Social Development in 2002, the Asia Foundation in 2004 and the Khmer Rouge Institute for Democracy in 2005 found that the majority of Cambodians want to see trials of Khmer Rouge leaders, provided the trials conform to international standards.

A Cambodian tribunal initially set up in 1979 found both Pol Pot and another Khmer Rouge leader, Leng Sary, guilty of genocide. But it lacked the muscle to apply sentences. Until 1998, civil war prevented the establishment of other tribunals. Talks between Cambodia and the UN lasted six years, from 1998 until 2003, before an agreement to set up a tribunal under Cambodian law was finally reached. Only late last year did Cambodia ratify the agreement and establish a budget estimate for the project.

One cause of this delay may have been a lack of political will to have the trials, particularly on the part of Prime Minister Hun Sen's party, said Dinah PoKempner, a lawyer with Human Rights Watch (HRW). "One reason there was foot-dragging is that political deals were brokered," PoKempner told IPS. "The civil war was won partly through co-opting the Khmer Rouge and allowing them positions in government and the military. There are people who come under explicit terms of amnesty." Another reason negotiations over the court took so long, she said, is that the current government's style has been to control the Cambodian courts completely. "There is not an independent judiciary, so having an independent judiciary is a political threat to the government," the HRW lawyer said.

The model for the court finally agreed upon, the Extraordinary Chambers (EC), is an affordable hybrid of the international tribunals held at The Hague. Mixing mostly Cambodian but also foreign judges, the EC's decisions require a majority vote and must include at least one foreign vote. HRW, however, has criticized this arrangement as vulnerable to stalemates. Mike Jendrzejczyk, Washington director of HRW's Asia Division, said the EC model is susceptible to manipulation, because the government can choose from the judges and prosecutors nominated by the UN, but the UN has no say in the appointments made by the Cambodian government.

But according to a paper by Tara Gutman, a legal consultant for the Cambodian government, there are also drawbacks to moving the court away from Cambodian influence. If this were done, Cambodian citizens and the Cambodian press would be less likely to attend the trial, and most of the public would be unable to understand the language of the proceedings, she wrote. Neither the International Criminal Court nor the International Court of Justice are options for Cambodia as the former can only hear cases that took place after its genesis in 2002, and the latter only handles disputes between states.

Gutman said that since the hybrid model relies predominantly on existing institutions and local staff to run the trials, it is not only cheaper but leaves a wake of skilled personnel. Plus, holding the trials in Cambodia improves the public's faith in their country's legal system and Cambodia's reputation as a just society, she explained. In response to questions of whether wider corruption in Cambodia's courts will bleed into the tribunal, Gutman said some margin of accountability will be established by non-governmental organizations, the press and public monitors allowed to attend the open, televised hearings.

Cambodia's Khmer Rouge Tribunal (KRT), which will be located in the capital, Phnom Penh, differs from other international tribunals that have been held in Yugoslavia, Rwanda, Kosovo and Iraq in that it is set to try cases for no more than three years at a cost of about $20 million per year. By comparison, the Yugoslav tribunal is expected to last 17 years at an estimated cost of $100 million per year, and the Rwandan tribunal $24 million per year for 14 years. Sierra Leone's Special Court and East Timor's Serious Crimes Panel are more similar to the Cambodian model. Both use mixed tribunals made up of national and international judges, which is much less expensive. But the KRT is unique even from these examples because 25 years have passed since the atrocities it addresses, while most other tribunals deal with conflicts less than three years old. This means the KRT has fewer cases to try and far more evidence of crimes, including maps of mass grave sites and a 50,000 page collection of Khmer Rouge-era documents assembled over the past two and a half decades by Yale University's Cambodian Genocide Program.

More Information on International Justice
More Information on the Special Tribunal for Cambodia
More Information on International Criminal Tribunals and Special Courts


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