Many Wonder What Path KR Trial Will Take

Three small white trailers lie just outside a green fence at the Extraordinary Chambers in the Courts of Cambodia, ready to detain those deemed most responsible for the deaths of nearly 2 million Cambodians between 1975 and 1979.

But doubts that defendants will ever move into their new homes have been rising.

Amidst speculation that the tribunal has stalled because of political meddling, some believe that the remaining Khmer Rouge leaders will—like Pol Pot, Yugoslavia’s Slobodan Milosevic and Chile’s Augusto Pinochet—die before they can be brought to justice.

Efforts to try the former leaders of the Khmer Rouge have been hanging in the balance since the tribunal failed to adopt its internal procedural rules in November.

Judges from the ECCC will sit down again later this month to try to hammer out a revised version of those rules, without which a trial cannot proceed.

It is a crucial moment in the life of the court.

“International judges have been clear they won’t participate in a trial that is not a fair trial,” ECCC co-investigating judge Marcel Lemonde said in a recent interview. “Now Cambodians have to express clearly that they want this trial.”

International judges have placed themselves at the front line of enforcing international standards at the ECCC. So far, however, donors are not publicly sending the same tough message, and it remains far from clear just what minimum international standards might mean for the ECCC.

Despite calls from numerous NGOs asking donor states to become more engaged in monitoring the court, donors are maintaining a studied distance.

“The donor countries will bend over backwards to keep life in this court,” one Western diplomat said on condition of anonymity.

“They do not want to give up on this. Too much is invested in money and effort and image. It’s their baby.”

To some, the situation looks distressingly familiar.

“This falls into the pattern we saw before,” Hans Corell, former under-secretary-general for legal affairs and the legal counsel of the UN, said by telephone from Sweden. “At the end of the day, we might see no trial.”

In June, it will be 10 years since then co-Prime Ministers Prince Norodom Ranariddh and Hun Sen first asked the UN for help in setting up a court to try Khmer Rouge leaders.

“After only one-and-a-half years of negotiation we concluded an agreement in Sierra Leone for an international court,” said Corell, who is now chairman of the board of trustees of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at the University of Lund in Sweden.

The ECCC, he added, “should have been up and running many years ago.”

The Cambodian government has no great love for the UN, which gave Cambodia’s seat in the General Assembly to the Khmer Rouge in the 1980s. And yet, in 1997, Cambodia asked the UN for help in setting up a Khmer Rouge tribunal.

Government officials have denied the government is meddling in the court’s affairs. And while Cambodia may not be making things easy for the UN, it would be presumptuous to conclude that the government wants to eliminate the international character of the court entirely.

The question for judges as they regroup this month to hammer out a revised set of internal rules is: What would constitute a show trial?

One person close to the court said that he would not be surprised if a number of international judges did leave.

“I hope the international judges have the intestinal fortitude to stick it out,” he said.

If they don’t, many argue that it would be a political loss for Cambodia, which has been seeking a larger role on the international stage.

“Cambodia is risking a great deal here,” said the Western diplomat.

“Everyone is looking at this tribunal. This is a coming of age for Cambodia. If they can’t get this right, it will set back their image in the international community for years to come.”

But no one is running for the exits, not yet at least.

“Everyone is convinced we must try to make it work,” Lemonde said.

“It’s particularly difficult in a country like Cambodia that has been totally destroyed,” he added. “Maybe it’s unrealistic to hope it will work, but it’s worth trying.”

Making a principled exit is easier said than done. Then-UN Secretary General Kofi Annan and Hans Corell walked out on negotiations with the Cambodian government in February 2002.

At the time, Corell told reporters that Prime Minister Hun Sen’s government had shown a “lack of urgency” that could continue.

Later that year, the UN General Assembly, led by Japan, Australia and France—now the three largest donors to the court—forced Corell and Annan to return to talks.

“The General Assembly tied my hands,” Corell said from Sweden. “As a civil servant I had to pursue the negotiations.”

Annan left an escape clause in the 2003 agreement between Cambodia and the UN, which laid out the framework for the court and an exit route for the UN if the tribunal did not meet acceptable standards.

But as Documentation Center of Cambodia Director Youk Chhang points out, no enforceable standards were written into that clause.

“At what stage can the UN pull out?” Youk Chhang asked.

International standards of criminal justice, for now, remain a moving target.

The ECCC is part of an evolving experiment that began with the trials of the Nazis in Nuremberg and gathered momentum after the end of the Cold War, with tribunals dealing with former Yugoslavia, Rwanda, Sierra Leone and East Timor.

Other international criminal courts also had weaknesses. All have proceeded in highly politicized post-conflict states. Nuremberg itself was far from perfect but turned out to be important for both jurisprudence and Germany.

In the end, then, how just must justice be?

For some Khmer Rouge tribunal donors, the answer at the moment seems to be: Not very. At minimum, they require evidence they can bring home to taxpayers to show that their money was well spent.

Success is a verdict in the trial chamber, said a second diplomat who spoke on condition of anonymity.

“The former Khmer Rouge leaders aren’t all going to die that fast,” he added.

The deeper lesson some have learned is that to maintain influence with Cambodia, it is best to acquiesce.

 

 

 

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