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Problems Faced by ECCC
The ECCC faces fundamental problems as an institution, and less overwhelming problems in its conduct of trials. The most difficult aspects of its operation are due to its hybrid structure. International staff are UN employees, with UN protection, UN pay cheques and UN rights and responsibilities, which breeds resentment. Cambodian staff have to rely on the largesse of the Cambodian government rather than the UN. The high level of Cambodian involvement at the court has led to a number of corruption allegations, with reports, for instance, of Cambodian staff having to pay parts of their salaries to government officials who gave them their jobs, or to Sean Visoth, former administrative director of the ECCC. A report by independent auditors in 2007 went as far as to recommend that because of the corruption in hiring practices at the tribunal, all Cambodian staff should be fired.24 Interviews with international staff in 2011 revealed that many of them believe the majority of the Cambodian staff were appointed for their connections to government more than their qualifications for their jobs. The Cambodian judges are for the most part members of the Cambodian People’s Party or otherwise connected to the Hun Sen regime. That said, international staff also tend to accept that the national staff at the ECCC are often very good at their jobs - many have more senior roles in the national system (which they usually retain) but appreciate the salary and status benefits that a job at the ECCC offers.25
Aside from controlling the staff at the court, the government has other effects. For instance, the agreement between the UN and Cambodia specified that trials should take place in Phnom Penh, but the government preferred to locate the trials out of the centre - citing reasons of security for putting the court in a military compound forty-five minutes’ drive from the city. In order to square the location with the agreement, a Royal Decree was passed to change the boundaries of Phnom Penh to include the part of Chaom Chau Commune in which the compound is found.26 This has served to make the court less accessible to ordinary Cambodians (there are very rarely Cambodians present in the public gallery who are not funded to attend, or there as Civil Parties), and it may serve to intimidate witnesses who are reminded by the military insignia around the compound of the strength and capabilities of the government, but it is relatively benign compared to other examples of government interference.
The most invidious effect that the government has had has been to intimidate national staff at the ECCC, leading to an ‘unprecedented crisis of confidence [in the court] due to allegations of judicial
misconduct’. Prime Minister Hun Sen strongly opposes the international Co-Prosecutor’s determination to see the Co-Investigating judges complete proper investigations of at least five more Khmer Rouge officials in Cases 003 and 004. Hun Sen stated his views in April 2009: ‘I would prefer to see this court fail than for war to come back to Cambodia ... [t]hat is my absolute position... just focus on these few people [i.e. the accused in Cases 001 and 002]... I would pray for this court to run out of money and for the foreign judges and prosecutors to walk out. That would allow for Cambodia to finish the trial by itself’. In September the same year he argued: ‘If you tried [more suspects] without taking national unification and peace into consideration, and if war occurred, killing between 200,000 and 300,000 people more, who would be responsible for it?... I have achieved this work [peace]. I will not let anybody destroy it.’ And in October 2009, he is reported to have told UN Secretary General Ban Ki-Moon that the ECCC should shut down after Case 002. The prime minister’s position on Cases 003 and 004 seems to have had significant effects on the Cambodian staff at the court, and deep divisions have become apparent between national and international staff. In September 2009, the international Co-Prosecutor at the time, Robert Petit, requested that the office of the Co-Investigating Judges open investigations into five suspects not covered in Cases 001 and 002. His national Co-Prosecutor, Chea Leang, objected to his request.
The Pre-Trial Chamber was asked to make a decision, but split along national-international lines, so could not reach a super majority. Failure to reach a decision meant that Internal Rule 71 (4) c applied - that is, action proposed by the international Co-Prosecutor had to be executed. In 2010, Co-Investigating Judge Marcel Lemonde announced that he was moving forward with the investigations despite a lack of support from the national Co-Investigating Judge, You Bunleng. However, You managed to block the investigation until Lemonde resigned. Some form of investigation was eventually conducted, and the Co-Investigating Judges (with Lemonde now replaced by Siegfried Blunk) announced on 29 April 2011 that their investigation was concluded - without having interviewed the suspects or visited alleged crime sites. Andrew Cayley, the international Co-Prosecutor, requested that the investigation be re-opened, and a day later Chea Leang, the Cambodian Co-Prosecutor, issued a statement recommending that Case 003 be closed without trial on the basis that the accused do not fall under the jurisdiction of the court. On 7 June 2011 the Co-Investigating Judges rejected Cayley’s request that they continue to investigate Case 003, and later the same month a number of Blunk’s international staff resigned in protest at the premature closure of the Case 003 investigation. The crisis escalated further when Blunk resigned in October 2011, citing repeated statements by Cambodian government officials opposing Cases 003 and 004 that ‘will be perceived as attempted interference’. Swiss Judge Laurent Kasper-Ansermet was appointed by the UN to replace Blunk, but the Cambodian government refused to approve his appointment, and Kasper-Ansermet resigned in March 2012, effective May that year. According to a press release, he
‘found himself in a highly hostile environment and was severely impeded in the day-to-day performance of his duties’ for ‘reasons which are manifestly more political and financial than strictly judicial’. The breakdown of national-international relations over Cases 003 and 004 is a grave threat to the court, and the court has been condemned by NGOs and potential Civil Parties for seeming to bow to government pressure.
The reputation the ECCC has for corruption and government tampering and the inefficiency of the court in bringing the cases to trial has led to severe problems generating sufficient funds for the institution to continue its work. From July 2008 until the end of 2009, amid allegations of corruption, the UN Development Program froze funding from international donors to the Cambodian side of the budget, almost bankrupting the court and causing Cambodian staff to work for several months without pay. In January 2012 the Cambodian budget was again exhausted as no new funds were pledged by donors, leaving around 300 Cambodian staff unlikely to be paid for their work in the first quarter of 2012, and reports suggested that Cambodian judges had not been paid since October 2011. The court is not short of funds only because of donor reticence - it is also running substantially over budget. The court was initially expected to cost around $60 million in total, and have completed its work in three years. Both of those figures have been exposed as significant underestimates. The total estimated expenditure for 2006 to 2013 is now almost $240 million, and the ECCC Web site declares: ‘There is still an urgent need for funding in order to continue the work of the court. We are hoping to receive ongoing funding from donor countries as well as concerned organisations, companies, foundations and individuals.’
There is no sense yet of whether the court will have enough money to continue even to the end of Case 002. There is also little sense of whether it should continue, given the many needs of Cambodian people. When asked in a 2008 survey what their priorities were, Cambodians listed jobs (83 per cent), health services (20 per cent) and food (17 per cent). They felt that the government should focus on the economy (56 per cent) and building infrastructure (48 per cent) more than justice (2 per cent). Seventy-six per cent felt that the government should focus on contemporary problems rather than addressing crimes committed by the KR. Fifty-three per cent would rather spend money on something other than the ECCC. Given the corruption at the court, its lack of efficiency and the low level of public support for spending so much money (despite a reasonably high appetite for accountability), it is hard to justify continuing to spend such large sums on such imperfect justice.
As well as facing significant structural problems, the court has faced problems connected to running trials. Case 001 ran relatively smoothly for months, assisted by the fact that the defendant, Duch, cooperated with the court, gave large amounts of information and expressed remorse at his actions. However, on the final day of his trial, Duch announced that he should be released in the name of national reconciliation, as he was not one of the senior leaders of the KR, and could not therefore be one of those most responsible. This debate over the court’s personal jurisdiction, that is, over who counts as a senior leader of the KR or one of those most responsible (and whether by implication only senior leaders of the KR can be thought of as those most responsible) continues and is the main issue on which Duch’s appeal was based. It is a loaded and divisive issue, as shown by the 2011 statement of the national Co-Prosecutor, which argues that defendants in Cases 003 and 004 fall outside the jurisdiction
of the court.
The role of victims has also presented challenges. The victim support section of the ECCC and the Trial Chamber became overwhelmed by Civil Parties in Case 001, and the situation can only get more difficult to manage. In Case 001, the ninety people entitled to act as Civil Parties were divided into four groups, each with one Cambodian and one international Co-Lawyer, meaning that witnesses could be questioned by up to eight Civil Party lawyers, as well as lawyers for the prosecution and defence. More than 2,000 people have applied for Civil Party status in Case 002, which has led to the court ordering that all Civil Parties coordinate their cases through two lead Co-Lawyers. This may be necessary for the efficient running of the case, but it also denies Civil Parties control of their own representation and reduces the restorative aspect of the justice offered.
Civil Parties have also been deeply disappointed at the lack of imagination on the part of the Trial Chamber in awarding reparations. There is no provision for the ECCC to award reparations to individuals, but there is scope to award collective or ‘moral’ reparations. Many were suggested by Civil Parties in Case 001 - for instance, naming public buildings on behalf of victims, funding victims’ visits to memorial sites, funding psychological and medical help for victims with some of the entrance money to the Tuol Sleng and Choeung Ek memorial sites and so on. However, the Trial Chamber found it outside its competence (for reasons which are unclear) to award any such reparations, and instead decided only to list the names of the Civil Parties in the final judgement. The Supreme Court Chamber clarified the position of the ECCC, but not in favour of the Civil Parties. It ruled that the court had no jurisdiction to grant requests for reparation that would require the Cambodian authorities to act to provide the reparatory measures. It further ruled that the ECCC could only order reparations the costs of which were borne by the convicted person/s. In this case, Duch was found to be indigent, thus no reparations of any significance were awarded.
Finally, a problem that did not emerge in Case 001, but is likely to slow down or even prevent the completion of Case 002 is the condition of the defendants. Nuon Chea is 86 and Khieu Samphan is 82, and each has health problems. There is a genuine concern that one or both may not live to the end of the trial.
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