No Justice?

The latest publication to weigh in on the ECCC is the Economist with this gloomy story on the progress of the court. It laments the lack of funds, staff and political will, and questions how it will be possible to proceed. The author appears to be willing to give up on the process before it has even begun, seeing the hurdles as being just too high to overcome. The article even suggests that the international judges are 'sending a message' that they may not want to proceed even if the UN does.

Hard to know if all this is based on the authors own view of situation, or if the judges have been given off-the-record comments about their imminent departure. Meanwhile, there has been no indication of any work stoppage at the court, and several members of the ECCC have been appearing in front of the Cambodian Journalists Club to talk up the court and push them to keep up local news coverage.

At the same time, according the the Cambodia Daily, 'official letters' have been moving back and forth between the Deputy Prime Minster Sok An and the United Nations in New York over the Extraordinary Chambers Defence Office. The good news I supposed is that everyone is still talking to each other and working. The bad news... well I guess we will see what happens at the end of January.

No justice in this world
Dec 19th 2006 | PHNOM PENH
From The Economist print edition
Death is more likely than the law to catch up with the Khmers Rouges

“THINGS are going well,” says Robert Petit, a Canadian co-prosecutor at the UN-backed tribunal set up to try Khmers Rouges leaders for their atrocities. Five months after it started work, he says he is ready to recommend the first indictment as soon as the tribunal's Cambodian and international jurists have agreed on its rules of procedure. Sadly, no one is sure when, or even if, that will happen. Human Rights Watch, a lobby group, believes that “political interference has brought the whole process to a screeching halt.” A plenary meeting of Cambodian and foreign judges convened in late November to reach agreement. It proved a disastrous exercise in mutual incomprehension. Cambodian judges, who appeared to be taking instructions from elsewhere, reportedly complained that there was not enough time to get through the 113 articles in the draft rules, and that they paid too much heed to international, not national, law. The foreigners resisted but were dismayed by the refusal of the Cambodians to engage in serious discussion.

It was never going to be easy to deliver justice to victims of the Khmers Rouges 28 years after the end of their rule, which killed up to 2m people. Top leaders, starting with Pol Pot, have already died. With every delay it is more likely others will be dead before indictment. The tribunal's official title, the Extraordinary Chambers in the Courts of Cambodia (ECCC), hints at its limitations. Compared with the recent tribunals on former Yugoslavia and Rwanda, Sierra Leone and East Timor, Cambodia's is much more firmly based in national law. Under the agreement wrung by Hun Sen, the prime minister, from a reluctant UN in 2003, it is the first to have a majority of national judges.

Unfortunately, existing Cambodian law is weak on the crimes the tribunal is investigating. Worse, the judiciary is one of the world's least qualified and most corrupt. Human-rights groups say it is not an instrument of justice but a political tool. Moreover, Hun Sen and other prominent government figures are themselves former Khmers Rouges and are assumed to remain sensitive about the tribunal's investigations and its targets for prosecution.

The tribunal remains dogged by other weaknesses. There is a disturbing lack of safeguards for witnesses. The meagre budget so far provided by Japan and Western governments leaves the ECCC acutely short of manpower and equipment. Jim Goldston, a leading American international jurist has accused governments of feebly acquiescing in “official ineptitude, power-grabbing and duplicitousness”.

The tribunal has given its rules committee until the end of January to agree on procedures that meet international standards. If it does, these will go to a new plenary, probably in February. If not, Ban Ki-moon, the new UN secretary-general, will have to decide whether to exercise the opt-out clause inserted in the UN's agreement with Cambodia—precisely for fear of political interference. But even if the UN does remain engaged, the message foreign judges are sending is that they may not.

Duch and Letters to New York

A few interesting stories in the local news this week. First an article from the Phnom Penh Post asking if it is right for one of the most notorious Khmer Rouge leaders, Duch, to have been left in a military without a trial or any charges. He was apparently arrested under the ECCC law, but is still under the authority of the Cambodian government until the ECCC is ready to start prosecuting. Shadows of ‘GITMO’ here. He clearly belongs behind bars, but how can he be held without charge while others walk free? The ECCC Spokesperson notes that he is still under government authority so it is up to them to resolve the issue. It unlikely they will free him before the start of the ECCC trials, so expect the issue to be raised at his defence.

In the Daily we have a far more interesting story of a letter from the Deputy PM Sok An to the United Nations Headquarters. The letter indicates the governments unhappiness with the Defence Support Section of the ECCC and then suggests it might be good to open a ‘political dialogue’. That could mean reopening the whole negotiation process. It no wonder many are calling it the second step (after stalling on the Internal Rules) of a concentrated effort by the Cambodian government to stall the trials until every potential criminal has died. The mood of the ECCC staff can not be too positive these days.

Calls for infamous Duch to go free
By Charles McDermid and Sam Rith

The pretrial detention of Kaing Khek Iev, better known by his nom de guerre Duch, is drawing increased criticism from attorneys, analysts and international human rights groups such as Amnesty International. Duch, former commandant of the Khmer Rouge torture and interrogation center S-21 at Tuol Sleng, has been incarcerated in a military prison without trial since 1999.

A London-based spokesperson for Amnesty International wrote to the Post on December 14 that Article 9 of the International Covenant of Civil and Political Rights (ICCPR), which Cambodia ratified in 1992, guarantees the right of anyone arrested or
detained to be brought promptly before a judge or judicial officer and tried within a reasonable time or freed.

"Duch is obviously no exception, and must be allowed to enjoy these basic human rights," the spokesperson said by e-mail. "Even though the case against Duch may be complicated and establishment of the Extraordinary Chambers has been delayed, over six years in pretrial detention is clearly not in compliance with international standards."

And in Phnom Penh, an American legal expert is maintaining that abuses of Duch's basic human rights may present serious problems for prosecutors should he be indicted by the Extraordinary Chambers in the Courts of Cambodia (ECCC).

"This goes directly to the heart of the Khmer Rouge Trials - and whether it's going to operate pursuant to international standards of due process and fair trial," said Jeffrey Kahan, legal adviser to the Cambodian Defenders Project....... (more in the article)

_____________________________________________

Monday, December 18, 2006
Sok An Calls for UN 'Dialogue' On KR Defense

By Erika Kinetz
THE CAMBODIA DAILY

Cabinet Minister Sok An has written to the UN asking to open a "dialogue" to resolve the acrimonious dispute over the role of the defense support section of the Extraordinary Chambers in the Courts of Cambodia. This apparent return to talks after nearly a decade of tortuous political discussion to establish the Khmer Rouge tribunal has worried some observers.

In a letter dated Dec 5, Sok An said the defense section was established without proper consultation with the Cambodian government. He also took the tribunal's outspoken Principal Defender Rupert Skilbeck to task for making several "unilateral decisions" since he arrived Oct 1.

In the letter, addressed to Nicolas Michel, undersecretary general for legal affairs and legal counsel at the UN in New York, Sok An charges that the administration, role and functions of the ECCC's defense support section, as well as its relationship with the Bar Association of Cambodia, were not outlined in the agreement between Cambodia and the UN that formed the basis for the tribunal.

"[T]he concept seems to have evolved within the thinking of the UNAKRT [United Nations Assistance to the Khmer Rouge Trials] and staffing and budget requirements were developed without any reference to the Cambodian side," Sok An wrote.

Sok An also claimed that Skilbeck's appointment was "insufficiently attuned to the specificity of the ECCC and its position 'within the courts of Cambodia'." He added that Skilbeck has taken several decisions, including renaming the defense support unit as the defense office and disseminating information about its role, without consulting Sean Visoth, the ECCC's director of administration.

In the letter, Sok An also said that the problems with the defense support section had led to "an extremely difficult situation with a significant impact on the entire ECCC," and asked to open a dialogue directly with the UN to resolve the matter.

Sok An said he was too busy to speak with a reporter Sunday evening. Skilbeck declined to comment. Information Minister and government spokesman Khieu Kanharith could not be reached for comment. "The letter was a request by the Cambodian government for clarification on some ECCC issues," tribunal press officer Peter Foster said in an e-mailed statement. "The relevant departments are now discussing how best to address these clarifications and provide a response," he said.

One diplomat familiar with the letter questioned whether it was a stalling tactic or a genuine attempt to resolve the matter. "Is it an attempt to slow down the process or an urgent attempt to resolve this, or is it simply because the principal defender irritates the Cambodians because of his abrasive attitude in their view?" the diplomat asked. "I don't know," he added.

Others took a harder line. "It’s foot dragging," said Theary Seng, president of the Center for Social Development. "We are almost one-third of the way through the life of the court already. Money is being spent. Still we haven't touched the substantive matter."

The role of the defense support section is enshrined in the draft internal rules, which ECCC judges failed to adopt at a plenary session last month, but discussions of such a unit date back to at least December 2003.

UNAKRT officials met with Ky Tech, the president of the Cambodian Bar Association, and Sok Sam Oeun, the executive director of the Cambodian Defenders Project, in December 2003 to discuss defense counsel for the tribunal.

At that time, according to a UN report, Ky Tech said he had concerns about the capacity of Cambodian lawyers to provide an adequate defense before the ECCC and considered it a "necessity" that Cambodian defense lawyers be assisted by at least one foreign lawyer.

It was out of these and other concerns about the remuneration of foreign defense counsel that the idea for a defense support unit was born.

The 2003 agreement between Cambodia and the UN gives defendants the right to counsel of their choice and states that the UN is responsible for the remuneration of defense lawyers. In recent weeks, however, Ky Tech has refused to recognize the defense office, and warned bar members that they would break the law if they attended training that it had sponsored.

Contacted last week, Ky Tech declined to comment on the 2003 meeting.

A defendant's right to an independent and competent defense at the ECCC is a point most international observers say is non-negotiable. "This is an issue international judges could walk out over," one court observer said on condition of anonymity.

"Independent, competent defense counsel is the bedrock of international due process standards."

(Additional reporting by Prak Chan Thul)

Films at the FCC

Last night saw the premier of a new short film on the Khmer Rouge period and the coming Khmer Rouge Trials. The film was produced by KID with help from OSJI- two very active NGOs in Cambodia. The English premier was at the venerable FCC and the place was packed.

The film was a very interesting and well done. It showed interviews with families from various parts of Cambodia and filmed them discussing the Khmer Rouge period. The contrast between the pain and and horror in the stories told by the grandparents, and the utter disbelief by the younger generation was shocking. In one section of the film a young man flatly denies that his mother's stories could be true because as he put it 'they don't make any sense'. He is then taken to one of the mass grave sites and his reaction to seeing the evidence of the genocide is one of the most powerful moments in the film.

The premier in Khmer will be on the 16th and 17th at the Chenla theatre in downtown Phnom Penh. It would be interesting to see the reaction from the audience, many of who, like the young man in the film, probably don't believe the stories of the Khmer Rouge.

A great job by both KID and OSJI.

On a side note: following the film a short Q&A took place. One of the questions, from a young backpacker type, was if it was true that the court had collapsed and had been cancelled. He backed up this with the 'fact' that he had been informed of the cancellation just a few hours ago. Laugher could be heard from the front rows of the audience were many members of the court including Co-Prosecutor Robert Petit, Co-Investigating Judge Marcel Lemode and a few others I didn't recognize, joked that they should go pack their bags.....

More Motoo

Judge Motoo is quickly establishing himself as the most vocal of the ECCC court officials. Here his is again urging haste in finalizing the rules. Of note in this piece is his insistence on no compromise for international standards and his basic agreement with the ECCC's Cambodian spokeswoman over the complexity of combining international law and Cambodian law as the source of the delays.

Judge Moto is not the only one getting press these days however. Apparently both the International Co-Prosecutor and the International Investigating Judge have appeared on the Phnom Penh based CTN television station in the last weeks. Will the Principle Defender dare to appear as well?

Judge says Cambodian genocide tribunal urgent

HAMDEN, Connecticut: The Khmer Rouge genocide trials in Cambodia should start quickly, a judge serving on the tribunal said Wednesday, noting that many defendants, victims and witnesses are old.

"We can't dwell on this for years," Motoo Noguchi, a Japanese prosecutor who will serve as a judge for the tribunal, said at a talk at Quinnipiac University School of Law. "Now it's time to really start cases. We have to identify the disagreements and we have to make our best efforts to solve them and quickly move to the next stage."

A 2003 agreement between Cambodia and the United Nations created the tribunal after years of difficult negotiations seeking justice for crimes committed when the Khmer Rouge held power from 1975-79.

The radical policies of the now-defunct communist group led to the deaths of some 1.7 million people from execution, overwork, disease and malnutrition.

Prosecutors are expected to indict about 10 defendants, including the few surviving top Khmer Rouge leaders.

Organizers of the trials said last month they have been unable to agree on the judicial rules that will govern proceedings, but they still expect to convene the long-awaited tribunal in mid-2007.

The Cambodian and international judicial officials said last month that they had encountered "substantive disagreement" in their goal to adopt 110 draft rules for running the proceedings. The rules cover every phase of the proceedings — preliminary investigations, judicial investigations, the trial and appeals. They also delineate the roles of all parties, including prosecutors, defense attorneys and defendants. The tribunal cannot begin until they are in place.

Human Rights Watch last week accused the Cambodian government of intervening to delay adoption of the rules, a charge the government denied.

Helen Jarvis, a spokeswoman for the tribunal, has said there was no indication of political interference from the government and that the delay was due partly to the complexity of legal issues that Cambodian and foreign judicial officers are grappling with.

Noguchi offered a similar assessment, saying participants were dealing with complex international law as well as language and cultural differences.

Unlike other international tribunals, the Cambodian judges are a majority on the panel and international participants a minority, Noguchi said. Participants not from Cambodia must ensure the tribunal meets international standards, he said.

"We are not allowed to make any serious compromise on that," Noguchi said.

No new date has been set for adopting the rules.

A Million Complaints

The International Co-Prosecutor may have put his foot in it with this interview where his basically invites anyone wishing to lodge a complaint to come out to the ECCC right now. I hope they have the staff in place to handle the probable bus loads of people looking to tell their story and get their moment in the court. It might take 30 years just to hear what each potential witness has to say.....

Friday, December 8, 2006
ECCC Welcomes Victims' Complaints, Risks Deluge

By Erika Kinetz
THE CAMBODIA DAILY

As the long-delayed trial of former Khmer Rouge leaders inches forward, victims of the regime from as far away as France are asking themselves how they might be a party to such belated justice.

The best answer, at the moment may be to go directly to the Extraordinary Chambers in the Courts of Cambodia on the outskirts of Phnom Penh and talk to the prosecutor's office.

"Any victims of a crime can certainly come forward and register a complaint with the office of the co-prosecutors," co-prosecutor Robert Petit said this week. "Unfortunately, at this point, the only way to do that is for people to come here," he said.

Until the rules that govern the participation of victims and witnesses in the tribunal are adopted, Cambodian law applies, Petit said. And under Cambodian law, victims of a crime can complain personally.

If the complaint falls within the jurisdiction of the ECCC—which is empowered to prosecute senior leaders of Democratic Kampuchea and those most responsible for certain crimes committed between 1975 and 1979—the prosecutor may launch an investigation.

So far, Petit said, less than a dozen individuals have filed complaints at the court, a few of which —he declined to say exactly how many—have resulted in investigations. "Theoretically, any person who was a victim of Khmer Rouge crimes during our period has a valid complaint against those most responsible and senior leaders," he said.

This creates an obvious problem of scale. Nearly 2 million people perished during the regime of Democratic Kampuchea, and many more suffered horrendously.

Youk Chhang, director of the Documentation Center of Cambodia, said that at least half of the 4,000 people DC-Cam has interviewed in the last decade wanted to file complaints. In addition, Youk Chhang said he has a 1983 petition against the Khmer Rouge signed by 1.6 million victims, which he plans to file with the court.

About seven years ago, DC-Cam staffers asked several hundred people who signed that petition if they still wanted their complaint considered. Their answer, Youk Chhang said, was a resounding "Yes."

Petit admitted that he was unprepared for the potential deluge. Even a few thousand complaints, he said, would be impossible to respond to, much less investigate.

The office of the co-prosecutors has just three researchers and is in the process of negotiating for assistance with investigations from the Cambodian judicial police, Petit said.

Victims are potential witnesses, and Petit said that help could also come from the recently established witness support office of the ECCC and from a proposed victim's unit.

Harri Moilanen, the ECCC's new support coordinator for witnesses and experts, arrived in Phnom Penh six weeks ago. Moilanen, a Finnish national who spent nine years in the victims and witnesses section of the International Criminal Court in Yugoslavia, wrote in an e-mail that he has been working with two Cambodian colleagues to setup a witness management service, but had not yet had any dealings with victims.

Helen Jarvis, chief of public affairs at the ECCC, declined to name the two Cambodian witness support officers.

"Our policy is that certain people (such as spokespersons and judicial officers) are in the public eye, but that we do not provide personal details of other staff to the media," she wrote in an email,

The two officers were recruited through an open selection process, and all Cambodian staff application files can be reviewed by donors at any time. Jarvis did not respond to repeated requests for the budget of the witness support office.

Petit said that having just three witness support officers was "wholly insufficient."

"The NGO community could have a big impact in organizing people," he added.

Youk Chhang said that DC-Cam could help victims who are interested in filing a complaint with the ECCC.

HRW lets suspicions run wild

Human Rights Watch has thrown out a challenge to the ECCC, along with some pretty serious accusations in an official statement released today. The statement is quite a read, boldly stating that, "Acting on instructions from government officials, Cambodian personnel participating in the meeting delayed adoption of the draft rules," and that "Obstructionist tactics at the meeting on the internal rules were reportedly led by ECCC prosecutor Kong Srim (Kong Srim is actually a Supreme Court Judge and not a prosecutor!), a protege of Deputy Prime Minister Sok An" and even, “The fact that the government is already obstructing the process on ‘technical’ grounds should serve as a wake-up call for donors who have chosen to ignore Cambodian realities.”

What the statement does not have however is much substance. Maybe Mr. Adams has some information or sources which he is not revealing, or maybe he just thinks that his points are so obvious that there is no need to back them up. Either way if HRW hopes to be taken seriously its going to need to come up with more than this. Everyone fears that there could be government influence but it takes more than fears , suspicions and feelings to make a case. Especially one against a court. Stay tuned. We have not heard the last of this.....

Human Rights Watch

Donors Should Recognize How Government Tactics Threaten Entire Process

(New York, December 5, 2006) – The Cambodian government must end its interference in the mixed national and international tribunal set up to prosecute crimes by senior Khmer Rouge leaders and others most responsible for Khmer Rouge crimes, Human Rights Watch said today.

A recent week-long meeting of Cambodian judges and their United Nations-appointed international counterparts failed to agree on internal rules for the tribunal, which is officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Acting on instructions from government officials, Cambodian personnel participating in the meeting delayed adoption of the draft rules, reversing earlier progress in the drafting process. The result is that the tribunal remains unable to launch investigations or prosecutions in accordance with international standards or even Cambodian law.

“Adopting the internal rules is crucial to ensure that the tribunal adheres to international fair trial standards and an impartial interpretation of Cambodian law,” said Brad Adams, Asia director of Human Rights Watch. “Many of the Khmer Rouge leaders are old and increasingly frail, but until the rules are adopted, prosecutions and trials cannot move forward.. Political interference has brought the whole process to a screeching halt.”

In comments submitted to the tribunal on November 17, Human Rights Watch called for changes to the rules to meet international fair trial standards, specifically that there would be no in absentia trials, that defense counsel would be independent and effective, and that all trials would be public. (See http://www.hrw.org/backgrounder/ij/cambodia1106/.)

Cambodian lawyers and nongovernmental organizations have called for provisions to guarantee meaningful participation and protection of victims and witnesses, outreach to rural Cambodians to inform them about the trials and ensure that they can participate as civil parties, and authorization for victims’ associations and human rights NGOs to act as civil parties without having to register their organizations with the government.

Obstructionist tactics at the meeting on the internal rules were reportedly led by ECCC prosecutor Kong Srim, a protege of Deputy Prime Minister Sok An, who is Prime Minister Hun Sen’s most senior and trusted political lieutenant. As a prosecutor at the Appeals Court, Kong Srim developed a reputation for handling cases in a political manner rather than according to the law and the facts: he prosecuted suspects in absentia, played a key role in the release of Hun Sen’s nephew, Nhim Sophea, against whom there was compelling evidence of murder, and was crucial in engineering the imposition of the deputy prime minister’s candidate, Ky Tech, as president of the Cambodian Bar Association.

As documented in numerous reports by the United Nations, international legal organizations and Cambodian NGOs, the Cambodian judiciary and legal system remain under the tight control of the government. The government has ensured the appointment to the ECCC of Cambodian judges, prosecutors and security personnel who are politically loyal to the prime minister, the deputy prime minister and the national police chief, Hok Lundy. Such political control mechanisms are aimed at preventing judges and prosecutors from acting independently and conducting fair trials free from political interference.

Throughout the negotiations with the United Nations to establish the ECCC, Hun Sen and the Cambodian government engaged in a pattern of delay and obstruction, which was set out in detail by UN Secretary-General Kofi Annan in a report to the UN General Assembly. (See UN document A/57/769, “Report of the Secretary-General on Khmer Rouge trials,” at www.un.org.) The government has long tried to bog down efforts at creating the tribunal and, now, at making it functional, through seemingly endless and often fruitless negotiations, which absorb huge amounts of time, funding and expertise, but result in little or no substantive improvements.

“Government control over the Cambodian judiciary in the Khmer Rouge tribunal has always been a grave concern,” said Adams. “The fact that the government is already obstructing the process on ‘technical’ grounds should serve as a wake-up call for donors who have chosen to ignore Cambodian realities.”

Based on past government practices, Human Rights Watch is concerned that the latest wrangling over the internal rules may be a prelude to public attacks on the tribunal’s international staff, both to drive out particular individuals and to discourage others enough to bring about their resignations.

For the past 15 years, the Cambodian government has consistently attempted to silence, dismiss or undermine UN and other international personnel in Cambodia who operate independently and professionally and are seen as a threat to the government’s continued control of the judicial system. Hun Sen has vituperatively attacked all four UN human rights special representatives to Cambodia and the UN human rights office in Phnom Penh for their consistent and well-documented reports on human rights abuses, including extrajudicial killings and unfair trials, as well as the judiciary’s incompetence, corruption and lack of independence. While international donors have often called for reform of the judiciary as one of the highest priorities for Cambodia, the government has failed to adopt meaningful reforms.

“The government has long feigned accommodation with the UN system and international community in order to maintain its control over the judiciary,” said Adams. “The UN and donors must not allow this to happen this time.”

Human Rights Watch also expressed serious concern about the politically controlled Cambodian Bar Association’s attacks on the proposed ECCC Defense Office and plans for the training of Cambodian lawyers by the International Bar Association. The Cambodian Bar Association threatened legal action against Cambodian lawyers planning to attend a training on international standards by the International Bar Association in Singapore, causing it to cancel the training and to issue a strong statement condemning the move. Last year, when an independent candidate was elected president of the Cambodian Bar Association, the government-backed candidate, Ky Tech, used the politically controlled court system to have the election overturned. Ky Tech subsequently was elected as president, and it was he who ordered Cambodian lawyers not to attend the IBA training.

Though some progress has been made over the past decade, Cambodian courts generally give little respect to the right to an effective defense. The Cambodian government has repeatedly given assurances to the United Nations that arrangements would be made to allow full-fledged participation in defense by foreign lawyers, thereby ensuring that defendants would have counsel of their choosing. But the government is now obstructing this.

“The trials will not be credible unless defendants are provided a credible defense,” said Adams. “Given the well-documented problems with trials in Cambodia, the government and Bar Association should be going out of their way to ensure the reality of fair trials, rather than attacking the defense office.”

Future discussions of the internal rules will show whether it is possible for the ECCC to conduct trials that implement Cambodian and international law in an independent and impartial manner. Human Rights Watch urged both Cambodian and international personnel of the ECCC to pursue the objective of fair trials in accordance with international standards, keeping in mind that it is the Cambodian people who are the intended beneficiaries of this process.

“The international community needs to follow the Cambodian tribunal closely,” said Adams. “We want this tribunal to succeed. But if it becomes clear that the process is hopelessly politicized and obstructed, then the UN should withdraw its support to avoid becoming involved in a substandard trial that would be a disservice to itself and to millions of Cambodians.”

Show Trials

Also in the Phnom Penh Post today is this letter to the editor responding to an interview with the Principal Defender in the last edition of the paper. The view here is that the process is probably doomed to failure because of the agreement- not the individuals involved. He argues that more years should be covered and the scope of possible defendants should be expanded or else it will not be a perfect system. All of this may be true. But is he really advocating going back and renegotiating for another 11 years? Is he saying that unless it is perfect they should not bother?

He then contradicts himself when he correctly points out that many former KR are now in the government and bringing them all up on charges could cause instability- and then suggests the ECCC officials are unaware of this fact. But that is exactly the reason that the courts mandate is so limited both in years covered and the level and numbers expected to be tried.

He is also critical of Mr. Skilbeck's (and many others) view that this court will serve as a model court for future reforms. He says that sudden reform will be impossible- and he is right. But have any of the court officials argued that at the end of the ECCC, the entire Cambodian system will suddenly leap 20 years ahead? If so I have never heard them say it. Reform will take time, and this court will give Cambodia something to shoot for, and some Cambodian judges a little exposure to international standards, but only that.

But he is right at the end of the letter. Better not to hold it at all, then hold something that would be seen as a failure of international standards of justice.

Hard now to avoid a KRT 'show trial'

As Rupert Skilbeck pointed out ("The Principal Defender," Post, November 17, 2006), the Khmer Rouge Trial (KRT) should not be a show trial. Of course, in the pursuit of justice this demand is really important. Unfortunately, it is only applicable to the internal design of the KRT as the result of a political bargaining process over more than ten years.

In setting the framework of the trial, many paladins of the former leaders are excluded from prosecution. Furthermore, the background of some national judges of the ECCC should raise concerns whether fairness isn't threatened through their appointment. Altogether, the fairness of the trial in pursuing justice for the Khmer Rouge's crimes is hampered already by political considerations.

The KRT is very different from its historical model, the Nuremburg trials against leading Nazis and others after the Second World War. At Nuremburg, even a non-member of the NSDAP (Nazi Party) like former German Chancellor Franz von Papen or national banker Hjalmar Schacht had to stand trial. That they were found not guilty was a good argument for the Allies that the trial was not "victors' justice." Unfortunately, figures like them are not present for the KRT, especially for the periods before April 17, 1975 and after January 7, 1979 [excluded from KRT jurisdiction]. And this also avoids examining the involvement of other states in the Khmer Rouge's crimes.

In this context it is hard to understand what Skilbeck means when he argues that if the defendants are not treated fairly "no one can ever be sure what really happened." The exclusion of many years from the trial will even ensure this fact, and for 1975-to-1978 the work of famous scholars like Chandler, Kiernan or Vickery as well as the work of several local NGOs has made it clear already that the defendants are highly politically responsible. If the initiators of the KRT were not sure that the condemnation of the former leaders of the Khmer Rouge is the next logical step it is obvious that there would not be any trial.

The KRT is an indubitable show trial: it should be shown to the Khmer people that justice is possible, and this motivation should not be questioned. But is it really the highest value while there is still the possibility of political violence and instability? It must be remembered that in giving amnesty to the former Khmer Rouge leaders it was possible to end the civil war in 1998 - after nearly 30 years of war, civil war and genocide. This peace must be protected - not only in the view of the directly involved, the Khmers -and even this causes a lack of justice.

Sometimes it seems that issues like this are not present in the perception of the international lawyers and experts. It is in doubt whether they are really sufficiently informed about Khmer culture and history.

Or how can it be explained, for example, that Skilbeck claims that the KRT can improve the legal system of Cambodia? The country's legal system is used as a tool to govern and not to ensure the rule of law or horizontal accountability. This will change only over a very long period and therefore the KRT's impact will be minimal.

And if leading members of the Royal Family should give evidence as witnesses at the trial it could be very difficult in explaining this to the Khmers who still admire King Father Sihanouk, even for the Principal Defender.

If the KRT were to fail it would be better not to conduct it, for in this case it would be a show trial, too, but very different from all the positive expectations.

Markus Karbaum - PhD Candidate, Humboldt University, Berlin

Extraordinarily troubled chambers

That's the title of the latest feature on the court from the Phnom Penh Post. If you have a subscription you can see the whole article here- but here are a few highlights:

...the ECCC's precarious perch between "extraordinary" and "in the courts of Cambodia" has already been destabilized by political interference from the government, observers have told the Post. "It is a clear attempt by Hun Sen to maintain control over what is supposed to be an independent judicial process," said Brad Adams, Asia director of Human Rights Watch (HRW). "Because of its deeply flawed structure and the role of government-controlled judges and prosecutors, [the ECCC] is being deeply politicized even before the first indictment is filed."...

This has been the fear of every critic, but Mr. Adams seems to want to condemn the court before it has even started. A 'clear attempt by Hen Sen to maintain control' is a pretty bold statement to make.

...."This is not an international court, it is a Cambodian court," said Ly Tayseng, secretary-general of the Cambodian Bar Association (CBA). "They cannot create another court which is fully independent from the current court system - it has to be part of the Cambodian system so as not to violate Cambodian sovereignty."....

... "This is an international tribunal based on international law," said Basil Fernando, director of the Asian Foundation for Human Rights. "It is an international court in Cambodian territory. The UN cannot agree to anything less than international standards - by its very nature it cannot."....

Here we have the problem between the Cambodian Bar and the ECCC in a nutshell. The Bar clearly has not read the agreement, or any of the statements from the government. Mr. Fernando has it correct. Why are the international officials here at all if they are not going to ensure international standards?

....ECCC officials are finding the conflicting positions difficult to reconcile, and say there is no example of it occurring in other hybrid courts elsewhere. "I have no precedent to ascertain what to do," said Robert Petit, co-prosecutor. "We have not had problems like this before - even in hybrid courts. This is completely different.".... "[These issues are] not unresolvable," Petit said. "If there is a will there is a way. If we can really delineate the basis for the arguments we can adapt."...

A little disturbing that the ECCC's own officials are not sure how to proceed- but at least they all seem to be putting on a confident front.

Hope is not a plan

Today's Cambodia Daily has a follow up piece from the POV of the former Khmer Rouge. The view from the people they interviewed at least, seems to be that there will be no trial until everyone who could possibly be tried is long dead. This is one in a long line of articles from a new Daily reporter, Erika Kinetz. Rumor has it she used to work for the New York Times and is now the beat reporter for the Trials. The former KR may not believe anything will happen, in the trial but the Daily seems to have become a believer.

Nice 'sound bite' from the spokesman at the end of the piece. We better get used to that kind of statement from everyone at the ECCC during the next months. Lots of hopeful thoughts and very little detail.

KR Affiliates Not Surprised by Tribunal Holdup

Tuesday, November 28, 2006

By Thet Sambath and Erika Kinetz
THE CAMBODIA DAILY

Former Khmer Rouge soldiers and relatives of the regime's leaders said Monday that they were not surprised by the tribunal's failure this weekend to adopt crucial procedural rules, which are necessary for the trials to proceed.

Ven Ra, niece of the late Khmer Rouge military commander Ta Mok, said Saturday's development reinforced her belief that a tribunal would be impossible.

"The court's process is going too slowly," said Ven Ra, also chief of the SRP in Pailin. "It will be delayed until all former Khmer Rouge leaders die naturally," she said.

The rules, which were slated to be approved on Saturday, govern the roles of judges, prosecutors, defense lawyers, victims, suspects and witnesses in the Extraordinary Chambers in the Courts of Cambodia. Their adoption was delayed due largely to a split over how to integrate Cambodian and international law, tribunal officials said. ECCC officials have said they anticipate that first indictments could still be handed down early next year.

Ieng Vuth, deputy governor of Pailin municipality and son of former Khmer Rouge foreign minister Ieng Sary, said the tribunal should not go ahead until both sides are in agreement.

"Let [the two sides] discuss among themselves until they understand each other," recommended Ieng Vuth, whose father has been fingered by some observers as a potential candidate for prosecution. "Untac did not understand the Khmer and forced us [to join the national election in 1993] and then we had a war again."

Lath Nhoung, a former Khmer Rouge soldier, also said he did not believe the trial will ever happen. "The court's process is to show international that they are working to try [the Khmer Rouge leaders], but actually they will delay the process until they all die," he claimed.

ECCC spokesman Peter Foster said both sides of the court are committed to adopting a set of rules that respects Cambodian law and meets international standards. "We would not be here if this was going to be nothing but a 'show trial,'" Foster said. "The expectation of the donors and the mandate of the court is to ensure this process meets international standards of justice from beginning to end," he said.