The Open Society Justice Initiative has called on the UN to investigate corruption allegations at the Khmer Rouge tribunal, saying they have not been adequately addressed by a recently completed audit of the court’s Cambodian human resources section, which was commissioned by the UN Development Program.
In a report released in New York Wednesday, OSJI called the UNDP audit “a good first step” but said a new audit, with better safeguards and trained investigators, is needed to get to the core of the allegations.
“Although the audit report—which has not been released publicly—apparently discloses serious problems in human resources practices related to Cambodian court staff, we understand that it fails to address the substance of the corruption allegations,” OSJI said.
“Among other deficiencies, the majority of the auditors’ interviews with ECCC staff were conducted in an office visible to ECCC senior management, with court security guards monitoring individuals who entered the audit room,” the OSJI report claimed.
“This followed a staff meeting at which ECCC personnel were warned not to talk to anyone about the allegations of corruption,” OSJI alleged.
Helen Jarvis, chief of public affairs at the Extraordinary Chambers in the Courts of Cambodia, said Thursday that she had not yet reviewed the final version of OSJI’s report and was reluctant to discuss its allegations in detail.
She declined to say whether UNDP’s auditors investigated the OSJI allegations that Cambodian staff made kickbacks from their salaries to secure their ECCC jobs, citing confidentiality.
UNDP spokesman Men Kimseng declined comment on OSJI’s report, other than to say the Cambodian side of the court had accepted all the audit’s recommendations and begun implementing them.
“We look forward to working with our partners to strengthen the capacity of the institution to ensure the quality and integrity of human resource practices,” he added.
OSJI called on the ECCC to investigate the corruption allegations when the group first publicized them in February. Their request was met with strong denials from court and government officials, who then threatened to ban OSJI staffers from the country.
ECCC co-Investigating Judge Marcel Lemonde wrote in an e-mail Thursday that he supported OSJI’s determination to ensure that the court is transparent and independent. “[I]f there are serious charges of corruption, they should be investigated, on either side of the court,” he added.
But one foreign diplomat said on condition of anonymity the kickback allegations, which he said would be nearly impossible to substantiate, should be dropped.
The court’s progress in adopting crucial procedural rules after seven months of delay and its efforts to redress the irregularities in human resources management uncovered by the UNDP audit should be applauded, the diplomat said.
“This is more important than philosophizing about these kickbacks…. We should look forward now.” “OSJI brought up the allegations of kickbacks. It should be OSJI who presents evidence,” the diplomat added.
Government spokesman and Information Minister Khieu Kanharith greeted OSJI’s new report with skepticism and questioned whether the group had a “hidden political agenda.”
“The question now is whether the OSJI wants the ECCC to start its process or not?” he wrote in an e-mail.
Heather Ryan, OSJI court monitor, said the group supports the tribunal and that the criticisms were meant constructively.
In its 24-page report, which is an assessment of the progress and challenges at the ECCC, OSJI praises the court for the successful adoption of the tribunal’s procedural rules earlier this month, but outlines several potential pitfalls.
In addition, the group said the court will need more funds to carry out its work effectively.
Lingering doubts about the independence of Cambodian judges and inadequate public access threaten to undermine the court’s integrity, OSJI said.
Much of the judicial work of the ECCC will take place in the pre-trial chamber, where hearings will likely be closed. Four of five judges must agree if the proceedings are to be opened to the public, and OSJI said it was concerned that “critical court rules impacting whether cases go forward” could be conducted in secret.
Lemonde said the decision to keep pretrial hearings closed was in line with civil law procedure, but that steps had been taken to ensure that crucial decisions are not rendered in secrecy.
“The public will be made aware of all decisions of the pre-trial Chamber and the reasons behind them, including dissenting opinions, through their publication,” he said.
He added that judges will have the opportunity to demonstrate their independence once the trials begin.
OSJI also said that defense issues, which have twice stalled the court, remain a concern. Last year a tussle between the Cambodian Bar Association and the Defense Support Section of the court resulted in the cancellation of a training course for Cambodian lawyers and a delay in the adoption of the court’s procedural rules. In March, controversy over the fees the bar wished to charge foreign lawyers postponed the adoption of those rules by another month.
In the wake of those debates, some observers claimed that the bar association was hampering the progress of the court at the behest of the government. Bar and government officials strongly denied those charges.
OSJI said that the court’s new rules give the bar significant power over foreign lawyers, and said the bar’s actions must be monitored to ensure that defendants can access independent counsel.
ECCC Principal Defender Rupert Skilbeck said Thursday that foreign lawyers at the tribunal will be subject to disciplinary action by the bar association’s governing council. Lawyers can appeal bar council sanction to the pre-trial chamber, where four out of five judges must agree to overturn a council decision. He said that disciplinary actions have arisen in most war crimes courts and could well arise at the ECCC.
Bar spokesman Nou Tharith declined to comment as he had not seen OSJI’s report.
OSJI also said the court suffers from a split identity. The failure to integrate Cambodian and international staffers at the court is exemplified in the functioning of the public affairs office, the group said.
The court maintains separate spokespeople for the international and national sides of the court.
“The divisions in the Public Affairs Unit reflect the reality that the court is not a unified institution,” OSJI claimed.
Jarvis said the public affairs office was a model of cooperation.
“We’re working together productively,” she said.
Peter Foster, the tribunal’s UN spokesman, could not be reached for comment.
Supreme Court Chamber Judge Kong Srim expressed confidence that once judges begin to work together, their camaraderie would grow. “Normally when we start working, we would be closer to each other,” he said.
Lemonde said that he enjoys a close working relationship with his Cambodian counterpart, co-Investigating Judge You Bun Leng.
“I only can say that I’m working on a daily basis with my Cambodian counterpart,” he wrote in an e-mail. You Bun Leng said he was too busy to speak with a reporter Thursday.
OSJI also called for more international oversight of witness protection and the court’s detention facility, both of which are the responsibility of the Cambodian side of the court.
“Cases may well involve both insider witnesses and witnesses with information about people in positions of power in Cambodia,” the report said.
“The expectation, reflected in the court’s current approach, that the court can rely on Cambodian judicial police to provide witness protection to the range of witnesses anticipated…is unrealistic,” it added.