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Cambodia steps closer to
justice
By Niko Kyriakou
NEW YORK - 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.
The Royal Government of Cambodia's
Task Force
Cambodian Genocide Program at Yale
University
Human Rights Watch
(Inter Press Service)
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