In its report on Tuesday alleging political interference at the Khmer Rouge tribunal, the Open Society Justice Initiative said international staff at the court were considering referring some cases for trial in local courts.
If the government is unwilling to allow the trials of more than five Khmer Rouge suspects, one solution could be to let Cambodian courts try cases investigated by the tribunal, according to the report.
Though such a proposal could appear contrary to the tribunal’s mission, the possibility was raised in 2007 by Sean Visoth, the court’s Director of Administration, who said that local courts could try mid-ranking Khmer Rouge officials.
Donor country representatives also said earlier this year that the possibility of referring cases to local courts was evoked at a tribunal budget presentation in February.
But under the court’s founding legal documents and procedural rules, such a possibility is not permissible, according to ECCC Legal Affairs Spokesman Lars Olsen.
“The framework has no provision for the transfer of such cases, and the court is not currently involved in any discussion about the transfer of such cases,” Mr Olsen said yesterday.
Under “completion strategies” at the UN’s Rwanda and Yugoslavia tribunals, such transfers are indeed allowed. The Yugoslavia court has transferred eight cases involving 13 indicted persons to local courts in the former Yugoslavia, according to its website.
In its report, OSJI rejected such a proposal, saying Cambodian courts lacked the necessary independence.
“[I]t is fanciful, if not disingenuous, to suggest that the ECCC can investigate the final case and local courts can prosecute and try it,” the report said.
According to Anne Heindel, legal adviser to the Documentation Center of Cambodia, there is little to indicate that Cambodian courts have the inclination or the ability to pursue such cases, which involve mountains of evidence and complex charges, without outside technical assistance.
“It doesn’t seem feasible that it could be done without any assistance at all and meet due process standards,” she said.