Cambodian war crimes tribunal at risk of failure


OPINION: Despite costs in excess of $150m, only one judgment has been reached since 2005

ONE OF the first impressions of Cambodia is the gentle and courteous nature of the Khmer people. It seems at odds with its recent history under the murderous regime of Pol Pot and the Khmer Rouge.

More than a quarter of a century ago Brother Number One, as Pol Pot became known, imposed a tyrannical rule that was unsurpassed in its cruelty to the inhabitants of Cambodia. Estimates put the casualties at anywhere between one and three million. Yet the ordinary people remain remarkably compliant and accepting of the situation which had up to recently permitted the perpetrators of mass murder to remain unaccountable.

The Extraordinary Chambers in the Courts of Cambodia, the so-called war crimes tribunal, handed down its only verdict to date in respect of Duch (69), the former chief interrogator at Phnom Penh’s infamous Tuol Sleng detention centre. Duch, whose full name is Kaing Guek Eav, admitted overseeing the torture and execution of men, women and children. Hundreds of photographs of victims remain on display in the former school and the rooms still contain the instruments of torture and blood stains of the thousands of victims.

The war crimes chamber was set up to investigate and try the senior leaders of the Khmer Rouge deemed most responsible for the atrocities committed in Cambodia from 1975 to 1979. Although part of the Cambodian court system, the chambers are in effect specially created courts established on the basis of an agreement between the UN and the Cambodian government. This hybrid court with national and international judges and prosecutors is intended to provide fair public trials in accordance with international standards.

The chambers have jurisdiction in respect of certain international and domestic crimes including genocide, crimes against humanity and war crimes. Despite the passing of time, there is ample evidence of crimes against humanity in the widespread and systematic way civilians were targeted by the Khmer Rouge.

There are many practical obstacles to proving these crimes after such a long period, but it is the political obstacles that pose the real threat to the effectiveness of the chambers. Many of the Cambodian judges appointed had little experience or expertise to qualify them for the task at hand. There have been allegations of corruption by national judges and calls for investigation of the conduct of national and international judges.

The international judges and other staff had to overcome significant obstacles to agree rules of procedure for the conduct of the trials. Issues relating to the role of co-prosecutors, the right of defence counsel to conduct a robust defence and the role of investigating judges were especially contentious. Tensions have existed between international and national staff from the beginning and there have been a number of high profile resignations among international staff.

The situation has been exacerbated by the apparent reluctance of the Cambodian government to pursue all the former Khmer Rouge leaders, some of whom managed to transfer allegiances towards the end of the conflict. Now a major row has broken out about the attempt to block the appointment by the UN of an investigating judge to replace a previous international judge who resigned in controversial circumstances last year.

Cambodian officials claimed his replacement was unsuitable due to the fact he used his Twitter account to draw attention to the controversy. Critics have accused the Cambodian government of trying to prevent further cases being investigated. Human rights groups claim there is overwhelming evidence to pursue two other notable suspects.

There are few in Cambodia that have not been affected in some way by the atrocities of the Khmer Rouge. However, the chambers provide a forum to establish a record of what happened and make those most responsible publicly accountable. It remains imperative that more trials and investigations proceed, but they must be fair and consistent with international fair trial standards in sentencing and procedure.

Despite disappointment among the survivors and relatives of victims at the sentence handed down in the case of the first suspect brought to trial, the outcome was a victory for those opposed to the culture of impunity. It sends a clear message to rulers in Burma and elsewhere that they too will be held accountable. The real challenge is to go after the remaining perpetrators who still occupy positions of influence among the political elite.

The legacy of the court is now at risk. The court has cost more than US$150 million and yet just one judgment has been handed down since 2005. This is certainly not an example of best practice. The current impasse risks bringing the whole enterprise into disrepute and undermining efforts to hold those most responsible for the atrocities accountable.

Prof Ray Murphy, of the Irish Centre for Human Rights, School of Law, NUI Galway, was involved in training personnel for the Extraordinary Chambers in Cambodia

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