Using its strongest language to date, the Open Society Justice Initiative, a US foundation for legal advocacy and court reform, said yesterday that mounting political interference in the work of the Khmer Rouge tribunal risked fatally damaging the court’s legitimacy.
The organization, the court’s longest-serving monitor and most consistent critic, built upon allegations in previous reports that Cambodian court officials were under government pressure and that the court’s Cambodian jurists were acting on official instructions.
Responding to the report, the court’s UN Coordinator, Knut Rosandhaug, said yesterday he was personally unaware of any undue influence, while a Cambodian spokesman rejected any such allegation as a tired and unproven refrain.
The report’s assertions follow the second public disagreement among the court’s co-investigating judges, in which Cambodian Judge You Bunleng last month backed out of written instructions to investigators as part of cases opposed by the prime minister. Defense lawyers have since moved for Judge Bunleng’s disqualification, saying his actions showed political bias.
OSJI also welcomed the UN’s recent appointment of the former US federal prosecutor Clint Williamson as a senior representative, or “special expert,” to replace David Tolbert, who stepped down more than a year and a half ago.
As US Ambassador for War Crimes Issues, Mr Williamson last year helped negotiate the terms of an anticorruption program at the tribunal but has yet to begin work at the UN.
Cambodian government officials with responsibility for the tribunal were unavailable yesterday, and government spokesman Khieu Kanharith hung up on a reporter.
Though they deny any improper role in the court, Cambodian officials, including Prime Minister Hun Sen have in the past appeared unconcerned about appearances in reacting harshly to certain actions of the court’s judges and prosecutors.
The OSJI report released yesterday built on the hostile remarks of government officials, who since 2008 have publicly opposed the additional cases sought by UN prosecutors and the summoning of senior CPP witnesses, to conclude that the court’s Cambodian jurists have consistently sided with the government in opposing such actions.
In an analysis of the legal provisions to safeguard the court against political pressure, OSJI said UN negotiators’ abiding concern since the 1990s had been the political subservience of the Cambodian courts.
According to the report, the legal safeguards against interference—a requirement that UN judges agree for the court’s chambers to rule, disagreement resolution procedures and a provision allowing the UN to exit the court process—are imperfect in design and have not produced satisfactory results in practice.
However, the report reserved its strongest words for the consistent pattern among the court’s Cambodian jurists of taking positions in court that are consistent with the government’s views, particularly in objecting to additional prosecutions and witness summonses.
The report also cited the confidential statements of Cambodian officials who said they were limited in their attempts to resist outside pressure.
Mr Hun Sen in September said the cases he opposes could cause another outbreak of civil war, and that if the court wished to proceed it “must show reasons” to the prime minister.
After it became known that he had signed instructions to investigators in cases in which prosecutors have identified five additional suspects, Judge Bunleng last month crossed out his own signature, citing “the current state of Cambodian society.”
“This is an inherently political rationale,” OSJI said in its report. “When added to the history of governmental objections to allowing cases 003/004 to [move] forward independently, it supports the conclusion that political interference is improperly infecting decisions about the case.”
The report also called on UN staff to combat undue pressures more actively than they have in the past.
“[S]everal Cambodian officials and staff of the court have stated confidentially that they wish the international officers would be stronger and more vocal in standing up for the integrity of the institution, because that stance would give the Cambodians more ammunition with which to resist attempts to improperly influence their work,” it said.
Through a spokesman yesterday, Mr Rosandhaug, the UN coordinator, said he believed the court was successfully meeting international fair-trial standards.
“I take note of the report. I am not aware of any political interference at the court, as I do not believe the public statements referred to qualify as such,” he said in an e-mail.
“I continue to expect that officials of the court will act independently of such statements. The agreement between the government and the UN, the ECCC Law and the internal rules of the court all are measures put in place to ensure that international standards are respected—and I do believe we are implementing these in a diligent manner.”
Public Affairs Chief Reach Sambath said yesterday he had only skimmed the report, but categorically denied its most important claims.
“What I can tell you is that all of us work here with integrity,” said Mr Sambath. “I have seen criticism from day one.”