The Khmer Rouge war crimes tribunal agreed to last month by the UN and the Royal Cambodian Government is flawed and a “third rate effort,” but it’s also the last, best chance for millions of Cambodians awaiting some measure of justice, two international law experts have written in new analyses.
The failings of the tribunal as outlined in last month’s agreement could be many: It may not prosecute Khmer Rouge Brother No 3 Ieng Sary, it makes no mention of reparations, leaves open the possibility that the court’s judges will not issue a decision and simply agree to disagree and says little about witness protection or defenses available to the defendants, the experts wrote.
And yet to wait for a better agreement would only invite the possibility of no trial at all, the experts conclude.
“The opportunity to try aging members of the Pol Pot regime may not come again,” wrote John D Ciorciari, an adviser to the Documentation Center of Cambodia and a PhD candidate at Oxford University in England.
The opinions of Ciorciari and Suzannah Linton, an international law expert and Documentation Center adviser, were issued by the center recently to shed light on the tribunal agreement that was finally reached March 17, nearly six years after Prime Minister Hun Sen and Prince Norodom Ranariddh asked the UN to help Cambodia establish a war crimes court to try surviving Khmer Rouge. The UN General Assembly has yet to approve the draft tribunal agreement, though it is widely expected to do so.
The analyses provide one of the clearest pictures yet of the proposed tribunal’s architecture, strengths and weaknesses; it’s a picture that will leave some observers unsatisfied, Linton wrote.
“I am torn between being happy for Cambodians that they will finally have some accountability for the utter depravity and suffering caused in the Democratic Kampuchea era and at the same time being deeply disturbed that a third-rate compromise is all that they have been given,” Linton wrote.
The proposed tribunal’s deficiencies include a peculiar working of the rules that would allow Ieng Sary, though ill and disenfranchised from the once-powerful perch he occupied as Democratic Kampuchea’s foreign minister, to hold off indefinitely the international effort to prosecute him, Linton wrote.
That power would rely on support from Cambodian judges acting in defiance of the UN’s wishes to prosecute: Some judges may uphold the pardon Hun Sen granted Ieng Sary in 1996 in exchange for defection from the Khmer Rouge.
If the three Cambodian judges on the tribunal’s trial court were to vote against prosecution, and the two international judges sitting on the court were to vote in favor of it, the matter would die in court, according to the rules agreed to last month, with no action taken.
“This could lead to the extraordinary situation where the court simply cannot issue a decision that says yes or no on the question of whether Ieng Sary is immune from prosecution because of the pardon,” Linton wrote.
The human rights groups Human Rights Watch and Amnesty International have criticized the tribunal agreement for problems like this. Brad Adams, the head of the Asia division of Human Rights Watch, said it’s about control: “Hun Sen must be pleased,” Adams wrote in comments about the agreement, according to Ciorciari. “He can control everything. No Cambodian judge or prosecutor is going to act without his permission.”
The debate over who would control the court—Cambodia or the UN—led to a breakdown in talks last year. For now, Ciorciari writes, it’s better to trust Cambodia’s judiciary than to presume that it’s incapable.
“By announcing that the Cambodian judiciary is unreliable and taking all possible measures to minimize its room for maneuver, critics of the proposed tribunal would deny [government] participants the opportunity to contribute meaningfully to the search for justice,” he wrote.
