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| The Clown (Sacrava, 10 Nov. 2011) |
Khmer Rouge tribunal failing expectations
Tribunal comes up short of its promise to be an example for the domestic courts of Cambodia.
Al Jazeera | 3 March 2014
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The ECCC brings the leaders of the Khmer Rouge to court for crimes against humanity [Reuters]
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Phnom Penh, Cambodia - When the
Cambodian government and the UN agreed in 2003 to create a tribunal to
try senior surviving Khmer Rouge leaders, the initiative was also touted
as a chance to strike a blow against the impunity and corruption
rampant in the domestic court system.
The Extraordinary Chambers in the Courts of Cambodia (ECCC), which has spent $200m so far, is funded largely by international donors
who are told that their money is purchasing not only a semblance of
justice, but also lasting improvements in the Cambodian judiciary.
But over a decade later and nearly seven years after the ECCC began
full-time operations, rights groups and observers say that Cambodia's
domestic courts remain just as corrupt. Instead of serving as an
exemplary "model court", the ECCC itself has become infected by some of
the same problems that plague the Cambodian justice system.
Karnavas says that although the ECCC has helped sharpen the legal
skills of many individual judges and lawyers, it hasn't made a dent in
the more systemic problems of corruption and a lack of judicial
independence.
"The ECCC was the latest, and perhaps last, opportunity to improve
the Cambodian judicial system, by being a so-called 'model court'," he
says. "In my opinion, the ECCC has not lived up to its potential…Truth
be told, nothing can be adopted and implemented from the ECCC in a
uniform and consistent manner by the courts in Cambodia without
political will from the very top."
Karnavas added that although the ECCC has produced high-quality
jurisprudence on a number of issues applicable to national-level courts,
such as fair trial rights, the Cambodian judiciary has not yet made
efforts in applying these new laws and procedures.
Legacy programme
The tribunal never followed through on its pledge to create a
coordinating "legacy" programme through which it can transfer skills and
knowledge to local courts, leaving NGOs and the UN scrambling to pick
up the pieces.
Lars Olsen, an ECCC spokesman, said last week that legacy
activities at the court have been discontinued due to budgetary
constraints. These projects include a much-publicised "Virtual
Tribunal", a multimedia educational tool that would have archived the
tribunal's rulings and debates.
"A clear and detailed legacy strategy was not developed at the
outset, or, if it was, little information on it was made available,"
says Rupert Abbott, Amnesty International's researcher on Cambodia. "A
strong oversight structure was not created to take the lead in planning
and implementing legacy activities."
Scandals and schisms
The ECCC's ability to serve as a model court is also undermined by
its own struggles with corruption and government interference. The
tribunal was founded upon an innovative "hybrid" model, featuring both
Cambodian and international jurists, but it has turned out to be more
Cambodian than its planners dreamed.
In 2007 and 2008, it was rocked by a kickback scandal in which
Cambodian staff complained that they were being forced to bribe their
superiors to keep their jobs, a common practice here. The UN froze
funding to the court and demanded a solution, but the Cambodian
government insisted that the "independent counsellor" appointed to
monitor the allegations should be its own auditor general, and rumours
of kickbacks persist.
Since 2009, the court has been riven by deep schisms over whether to
prosecute five suspects. Cambodian Prime Minister Hun Sen has spoken out
against the prosecutions, publicly threatening that civil war will
erupt if they proceed. In turn, Cambodian prosecutors and judges in all
chambers of the court have resolutely opposed the cases and attempted to
block them. Two investigating judges and a number of international
court staff resigned over the deadlock, after months of sniping and
infighting.
Abbott said that problems such as these "send a negative message to
the national courts", one that could risk undermining the powerful
statement against impunity made by the court's first two cases, which
tried Duch, the commandant of S-21 prison, where over 12,000 people
died, as well as Pol Pot's chief lieutenant, Nuon Chea, and the Khmer
Rouge head of state, Khieu Samphan.
Meanwhile, just as it was in 2003, the Cambodian court system today
is widely seen as wracked by corruption and in thrall to the government.
With few exceptions, judges are aligned with the ruling Cambodian People's Party (CPP)
and deliver decisions that please party bosses. A number of human
rights defenders have been summoned to court and even jailed in the past
two years. Most recently in early January, 21 garment workers and union
activists were beaten, summarily jailed, and denied bail after
demanding a higher minimum wage.
Back to business as usual?
Nil Nonn, the president of the ECCC's Trial Chamber, is the nominal
head of the Siem Reap Provincial Court in addition to his duties at the
tribunal. As a judge in the western province of Battambang in 2000, he
told an American news crew that he accepted bribes - after verdicts were
issued - to supplement his monthly salary of just $30. He was also
filmed hearing cases without listening to evidence. Now he says his time
at the ECCC has helped him become a better judge.
"There are a lot of great experiences that working here provides,
especially in terms of administration, management, human rights
protection, full participation from all parties involved, and making
thorough arguments," he said. "Such good things will have a good
influence on national courts."
Nonn admitted that there are still some "loopholes" in the domestic
judicial system, but declined to be more specific. He also noted that
the embattled Hun Sen government, which has been facing street protests
over the results of disputed elections in July, is "really serious about
in-depth judicial reform" and will make it a priority during its next
five-year term.
However, Karnavas is not sure that judges such as Nonn will be able
to translate their newly acquired skills to the domestic courts.
"No doubt some national judges, prosecutors, lawyers and court staff
have learned quite a bit from their ECCC work experience," Karnavas
said. "This is very positive. But I suspect that once the ECCC comes to
an end, the skills and knowledge gained will rapidly dissipate as these
folks head back to their old jobs."
The debate over the court's legacy has far-reaching effects. Reach
Seima, a 32-year-old rice farmer in rural Kampong Chhnang province, is
part of a group of poor rural families that have been locked for over
seven years in a land dispute with the wife of Cambodia's powerful
mines minister. The villagers have been hauled up before the provincial
court multiple times on charges that rights monitors say are spurious,
and some have even been jailed.
Seima said he had been following the progress of the ECCC with
interest, but he was not optimistic about its ability to lead by
example.
"I follow the Khmer Rouge court, so I know that it thoroughly
conducts field investigations, listens to the accused and the victims,
and most importantly, the victims are allowed to attend the trial
fairly," he said.
"But our national court system is just getting worse. The Kampong
Chhnang court has clearly not been independent from the past up until
now, since villagers' representatives in the land dispute have been
charged with criminal offences, arrested and jailed. The company has
never been charged once by the court."
Seima added, "Before and after the creation of the court for
the prosecution of Khmer Rouge leaders, I've noticed that the national
court has never changed."
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