Opinion

Don't pave Cambodia's flawed path to justice

The tribunal to try ex-Khmer Rouge leaders needs reform, then funds.

By

Five high-profile members of Pol Pot's Khmer Rouge government are finally in detention awaiting trial. It's historic progress toward long-awaited justice for the brutal regime that caused the deaths of 1.7 million Cambodians in the late-1970s.

The United Nations-backed tribunal set up in Cambodia to try these men is running out of money and is seeking additional funds from donor nations. The United States indicated last month that it may reverse policy and begin funding the court.

There remain, however, legitimate concerns about the potential for corruption and the lack of judicial independence in Cambodia. A shift in US policy would be premature.

The tribunal – established to bring to trial "senior leaders" and "those most responsible" for the country's massive death toll – has undoubtedly made significant progress. The symbolism of having five ex-leaders of the notorious Khmer Rouge under arrest is enormous in a country where impunity is the norm. Clint Williamson, US ambassador for war crimes, has noted that the tribunal "is making progress and moving in a very positive direction."

Not all the news from Phnom Penh is so good. In recent months the tribunal has been shaken by a series of scandals. Open Society Justice Initiative, a legal group, raised allegations last February of chronic mismanagement and indicated that the Cambodian staff – including the judges – have to kick back part of their salaries in exchange for their appointments.

An internal audit, made public in October only after portions of it were leaked, uncovered a raft of problems at the tribunal. These included: an inadequate oversight mechanism, Cambodian staff hired without meeting the minimum job requirements, artificially high pay scales, and hiring practices so flawed that the auditors recommended that every Cambodian hired at the tribunal be fired.

An expert report, also leaked from the tribunal, paints a similarly bleak picture. The split Cambodia/international tribunal structure is "divisive and unhelpful," claimed Robin Vincent, former registrar for the Special Court for Sierra Leone, and Kevin St. Louis, chief of administration for the International Criminal Tribunal for the former Yugoslavia. They recommended that managerial responsibilities for the tribunal be transferred to the UN, and that crucial areas such as translation and witness protection be immediately assumed by the international staff.

Some positive but limited changes have taken place: There is now a written personnel manual that formalizes future recruitment procedures, a code of ethics, and an "anticorruption" pledge. International managers are now allowed to participate in evaluations of their Cambodian staff.

While these may be promising signs, they fail to address the heart of the matter. The auditors' suggestion that the Cambodian staff be fired and new employees hired under careful UN supervision was simply dismissed. The artificially high pay scales remain. The flawed split-tribunal structure is unchanged.

As for the kickback allegations, which go to the crux of the court's credibility, there appears to be no political will at the tribunal or the UN to launch any genuine and thorough investigation. The UN may be reluctant to press this matter, fearing Prime Minister Hun Sen would pull the plug on the tribunal rather than permit an independent and thorough investigation that might implicate individuals within his government.

With the taint of political influence, corruption, and mismanagement continuing to surround the tribunal, why is the US now considering providing direct funding? The answer may be oil. Vast deposits have been discovered off the coast of Cambodia in recent years – perhaps as many as 2 billion barrels and a further 10 trillion cubic feet of gas.

Firms from China, Japan, South Korea, Malaysia, Singapore, Kuwait, Australia, and France are seeking permits to explore and develop Cambodia's energy riches. Beijing has recently provided Cambodia with hundreds of millions of dollars of aid. Washington does not want to be left out, and it is looking to improve diplomatic relations with Cambodia.

Ambassador Williamson has stated that the court must address allegations of mismanagement and corruption before the US will consider funding it. Washington should uphold that promise.

Meanwhile, it should also work aggressively with the UN to pressure the tribunal and the Cambodian government to agree to the reforms the auditors and experts deemed necessary. Only this will ensure that the tribunal can function honestly and efficiently.

John A. Hall is a professor at Chapman University School of Law and director of the Center for Global Trade & Development.

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