Global Policy Forum

By Erika Kinetz and Joe Cochrane

Nearly 10 years after the Cambodian government first asked for help setting up a court to try leaders of the murderous Khmer Rouge regime, it has yet to hold a single hearing. Washington refuses to fund the court on the ground that it's not up to international standards, and its ambassador, Joseph Mussomeli, says, "no trial would be better than a trial that will be a farce." The court's foreign and Cambodian judges are deadlocked over procedure, and the foreign judges have threatened to walk out rather than participate in what they fear could become an exercise in politics over justice.

It wasn't supposed to be this way. Since the Nuremberg tribunal after World War II, trials of brutal leaders have slowly become more common and established a moderately positive record. U.N. courts have convicted numerous individuals for the wars in the former Yugoslavia and the Rwandan genocide. A hybrid court under local and international auspices is slowly getting off the ground in Sierra Leone. But the Cambodia tribunal, also an experimental local-international hybrid, has gone nowhere -- denying justice to the almost 2 million victims of one of the 20th century's worst acts of mass slaughter. Court insiders, who asked not to be identified for fear of retribution, now give the tribunal a 50-50 chance of collapsing.

Part of the problem is that, unlike the U.N. courts, Cambodia's tribunal is, at the government's insistence, mainly a national affair staffed mostly with Cambodian judges (though they are supposed to be guided by international principles). Hans Corell, who led the U.N.'s effort to help establish the court, says that he is "not at all convinced that this represents a good solution" to the problem of achieving justice in a local context. There's a certain emotional logic to prosecuting Cambodian crimes in Cambodia, and optimists hope a televised exercise in real justice will help break the cycle of violence and impunity that haunts the nation.

But that outcome looks unlikely. Hun Sen's government seems interested in the trial only to the extent it will vindicate its own anti-Khmer Rouge credentials -- without dredging up awkward facts, such as current officials' own Khmer Rouge ties or the support that China, now a close ally, gave to the genocidal regime. There are other worrisome signs: one of the court's Cambodian judges has admitted taking bribes, and another once sent an opposition politician to prison after a one-day trial. An American watchdog group, the Open Society Justice Initiative, recently alleged that employees of the court were being forced to pay kickbacks to government officials (a charge Phnom Penh denies), and the U.N. is auditing the court's hiring of local staff. Sara Colm of Human Rights Watch says the Cambodian government "got cold feet" when it realized that working with foreign partners meant "it might not be able to control" the judicial process.

The government does look willing to let the trial proceed, albeit in a limited fashion. Part of Hun Sen's legitimacy comes from the fact that his Vietnam-backed government held the Khmer Rouge at bay during the 1980s even as the West backed remnants of the murderous regime. "Twenty years ago we fought the Khmer Rouge, and no one supported us except a few friends," says Prak Sokhon, the cabinet secretary. "Now the tribunal will show that [we were] right."

Even if it does move forward, however, it's unclear which kind of justice the court can deliver. The key suspects are old and, like Pol Pot, rapidly dying off. And though surveys show most Cambodians support the tribunal, what they really want to know is what happened to their spouses and children. Moreover, traditional Cambodian justice usually involves simple retribution, using lynch mobs or cash compensation. The court's Canadian co-prosecutor, Robert Petit, maintains that no court can hope to deliver justice equal to the suffering of victims in such cases. But if Cambodia's court is transparent, he says, it could establish an "incontrovertible record about what happened."

Ideal or not, most agree that Cambodia's hybrid court is the country's last chance to exorcise its demons -- and that time is fast running out. French judge Marcel Lemonde says that if procedures aren't adopted by this spring, it may, regrettably, be time to call it quits. International staffers are nearing their wits' end: "Nobody came here to move paper around," says Petit. But that's as close to justice as Cambodia is getting these days.