feer.com
by Leslie Hook
In the decade of Cambodia's civil war, time has begun to heal the wounds inflicted by the genocidal Khmer Rouge regime. The economy has perked up–annual GDP growth is now more than 10%. Foreign aid is flowing, with over $500 million earmarked for development projects each year. However, the centerpiece of this aid, the United Nations-backed Khmer Rouge war-crimes tribunal, is still barely out of the starting blocks.
Convicting Khmer Rouge leaders of crimes against humanity would seem like a no-brainer. But then consider that Prime Minister Hun Sen himself was once a regional leader of the Maoist party, and had to make countless compromises with his former comrades in order to bring them into the government fold. The tortuous agreement signed between the U.N. and Hun Sen's government in 2003 laid the groundwork for a hybrid court system, but the Cambodian side insisted on strictly limiting the power of the foreign judges.
A lot has come to rest on the tribunal. It's convenient to make it out as a savior of sorts: An example for Cambodia's notoriously corrupt judicial system; a ray of hope for those who suffered under the Khmer Rouge; a powerful message that even government leaders don't have impunity. Fifty million dollars from more than 20 countries has poured into the tribunal's coffers so far, and much more is on the way.
The tribunal certainly has the potential to be a force for positive change in Cambodia, but whether it will realize that potential remains to be seen. The arrest of five senior leaders last fall and the beginning of hearings in November convinced many who thought that the trial would never happen. But jailings alone won't make the trials a success.
The structural flaws that have become apparent since the tribunal was established could jeopardize the court's real usefulness. Thanks to a combination of funding mismanagement, allegations of corruption, and donors who are a bit too trusting, the tribunal still runs the risk of becoming a farce, should events get out of hand.
First off, the very compromises that helped create the court have impaired its progress. The responsibilities of the court are split between the U.N. and the Cambodian government, which provides fertile ground for miscommunication and delays. At time of writing the official courtroom still wasn't ready for hearings, although pretrial hearings (in a different courtroom) began Nov. 20.
The translation team for the trilingual court (Khmer, English and French) is already backed up by months, unable to handle the 300,000 pages of documents that judges need to sift through. The witness-protection team, which had somehow been left out of the initial budget for the court, has only a skeleton staff and still lacks a director.
At Cambodia's insistence, a majority of judges in each chamber is Cambodian, but no decision can be passed unless at least one foreign judge agrees. This system, and the power it hands to Cambodia's famously corrupt judicial system, caused several nations, including the United States, to decline funding for the tribunal. The small handful of hearings held thus far haven't yielded any signs of judicial interference, but given the track record of the rest of Cambodia's judiciary, it can't be ruled out.
The credibility of the court has already been undermined by questions about the oversight of funding for the Cambodian side of the court. The U.N. Department of Economic and Social Affairs helped recruit funding for the Cambodian side of the tribunal, and this funding is overseen by the United Nations Development Program. UNDP's oversight, however, has been less than thorough. An audit initiated by UNDP and conducted in spring 2006 by the U.N. Office of Audit and Performance Review and an external auditor found that the Cambodian side of the court had hired underqualified staff, was paying inflated salaries, and added 52 staff positions without justification. UNDP's response was to bury the report and refuse media inquiries.
Even more serious are allegations of kickbacks raised by the Open Society Justice Initiative in an October 2006 report. In Cambodia it has been traditional practice for civil servants to buy their positions in government, one Western diplomat explained to me. When the current government came to power, the practice didn't disappear–it was merely systematized. Multiple sources said they had heard reports that some court staff were required to pay 20% to 30% of their salary to their higher-ups in order to keep their jobs. To date, however, no staff member has made a formal complaint.
If true, these allegations are the most serious threat yet to the tribunal's mission. Rather than setting an example of justice for the country, the tribunal may be reinforcing the worst habits of Cambodia's justice system.
Many members of the international community seem to believe that any corruption present is limited, and won't interfere with the judicial process. But that view implies a very narrow view of the tribunal's purpose. U.S. Ambassador Joseph Mussomeli put it this way: "We believe the judicial process is proceeding much better than people a year ago would have ever have guessed. Although there were some bumps in the road, it is now clear that either international standards will be met, or, at a bare minimum, the international judges will walk out." In his eyes, that safeguard is enough to ensure that the tribunal isn't a farce.
The corruption allegations are high on the radar of the Cambodian officials involved, as well. The man overseeing the tribunal and responsible for rooting out corruption (or perpetrating it, depending on whom you talk to), is Deputy Prime Minister Sok An. He is Hun Sen's right-hand guy, and the second-most powerful man in the country. Sok An has been involved with the tribunal practically since its inception, and took a leading role in the negotiations with the U.N. that stretched from 1999 to 2003.
In person Sok An is soft-spoken and gentle. His hair is elaborately coiffed, and his glasses and double chin give him a bookish air. When asked how the tribunal is going, he begins by explaining that it has actually set three world records for an international tribunal–for the fastest approval of internal rules (just under a year); the fastest arrests (five people so far); and the smallest budget.
He grows most animated when discussing his vision of the Cambodian tribunal as a pioneering model that other courts will someday follow. "We have a different model, but the world is looking for a better model," he says, gesticulating excitedly. "It is a new model."
His own belief in the importance of the tribunal is perhaps the most reassuring part of our conversation–when it comes to corruption, his words are less convincing. "In every country you have corruption," he begins, "but what is important is our attitude towards corruption." He says that fighting corruption at the tribunal is paramount, because the tribunal serves as an example for the entire Cambodian justice system.
Sok An concludes, "Corruption is not a real problem within the office of administration," referring to the Cambodian side of the tribunal responsible for court administration. But he never flatly denies that corruption might be happening. Neither does Sean Visoth, the director of the office of administration. "We cannot say 'corruption free,'" he says, referring to the court. "We cannot compare it to Hong Kong or Singapore. But we have done everything possible to minimize the risk of corruption."
Sean Visoth explains the steps his office has taken to address the allegations, including putting up suggestion boxes in secluded locations for added privacy, and requiring staff to sign a code of conduct that prohibits taking bribes. Oddly, the code does not prohibit giving bribes, however. He says that if someone came forward with a complaint related to kickbacks, "To have an investigation wouldn't be a big deal."
While these anticorruption efforts are a little underwhelming, the fact that government officials spend so much time talking about them indicates how seriously they take international media's perception of the tribunal. There's a reason for this: Cambodia's ruling party, the Cambodian People's Party, has built its political platform around its opposition to the Khmer Rouge regime. The break isn't as clean as it seems, though, and former Khmer Rouge leaders remain deeply enmeshed in the current government. The arrest of the powerful Ieng Sary last year was seen as a sign that none would be spared in the war-crimes tribunal. But more difficult tests will be ahead. The King Father, Norodom Sihanouk, worked with Khmer Rouge leaders during their rule, and might be called upon to present testimony during the tribunal.
International donors have a large role to play in keeping the tribunal alive and on track, and it should be donor pressure–rather than the moral backbone of the judges or anonymous complaint boxes–that ensures the integrity of the court. The U.N. is planning a major fundraising drive that will likely include one new target: the U.S., which is now reconsidering its earlier decision not to fund the tribunal. The U.N. will be asking for a pretty penny–they are likely to double the court's original budget estimate of $63 million. But there are no signs yet that donors will seize this opportunity to enforce new and better practices–such as a full investigation into the allegations of kickbacks that have dogged the office of administration.
The real measure of success will be the extent to which it can bring a sense of closure to Cambodian people. And surprisingly, the tribunal may already be doing that. "When we started [documentation work] in 1995, it was so hard to get people to talk about the Khmer Rouge," says Youk Chhang, director of the Documentation Center of Cambodia. "But people now speak about this so openly. Freedom has been given to the victims."
Organizations like the Documentation Center of Cambodia have played a large role in getting victims involved. The center has interviewed 5,000 victims of Pol Pot's genocide to record their experiences, and identified hundreds who are willing to be a civil party to the war-crimes trials. Each month the center buses in around 500 people from remote areas to visit the tribunal and learn about Pol Pot's regime. Less educated Cambodians often have little knowledge of events under the Khmer Rouge and have trouble believing their own countrymen were responsible for the genocide. That history is so sensitive it wasn't covered in national curricula until a few years ago, and most Cambodians alive today weren't around to witness the atrocities–over half of Cambodia's population is under 21 years old.
The history of the Khmer Rouge is still palpable in Cambodia not just because of its psychological impact, but also because of its economic impact. Although Cambodia's economy now is humming along, the country's infrastructure remains in tatters thanks to the decades of war. Annual GDP per capita (adjusted for purchasing power parity) is a meager $2,800.
In a perverse way, this legacy of destruction has made the job of the current government a bit easier. Prime Minister Hun Sen came to power after helping overthrow Pol Pot's regime, and his Cambodian People's Party still draws much of its legitimacy from its record of opposition to the Khmer Rouge. The tribunal further reinforces this narrative, helping Hun Sen and his colleagues differentiate themselves from the genocidal Khmer Rouge leaders.
But once this history is laid to rest, the Cambodian People's Party will be forced to find other issues on which it can deliver to voters. As the leaders of the Khmer Rouge are brought to justice and as fewer and fewer Cambodians remember the Khmer Rouge era, the CPP's record of opposing the Khmer Rouge will become less relevant than its ability to root out corruption and deliver economic growth. Cambodia's young democracy is still fragile, and the CPP so dominates every aspect of government that free and fair elections are virtually impossible. But in the post-tribunal era, perhaps that's something that voting citizens will begin to take action on.
This would be the best possible outcome for the tribunal: Not just putting a handful of elderly murderers behind bars, but enabling the nation to take one step further on the road to recovery from Pol Pot's regime. Whether or not that happens depends on whether the trial can gain real legitimacy.
by Leslie Hook
In the decade of Cambodia's civil war, time has begun to heal the wounds inflicted by the genocidal Khmer Rouge regime. The economy has perked up–annual GDP growth is now more than 10%. Foreign aid is flowing, with over $500 million earmarked for development projects each year. However, the centerpiece of this aid, the United Nations-backed Khmer Rouge war-crimes tribunal, is still barely out of the starting blocks.
Convicting Khmer Rouge leaders of crimes against humanity would seem like a no-brainer. But then consider that Prime Minister Hun Sen himself was once a regional leader of the Maoist party, and had to make countless compromises with his former comrades in order to bring them into the government fold. The tortuous agreement signed between the U.N. and Hun Sen's government in 2003 laid the groundwork for a hybrid court system, but the Cambodian side insisted on strictly limiting the power of the foreign judges.
A lot has come to rest on the tribunal. It's convenient to make it out as a savior of sorts: An example for Cambodia's notoriously corrupt judicial system; a ray of hope for those who suffered under the Khmer Rouge; a powerful message that even government leaders don't have impunity. Fifty million dollars from more than 20 countries has poured into the tribunal's coffers so far, and much more is on the way.
The tribunal certainly has the potential to be a force for positive change in Cambodia, but whether it will realize that potential remains to be seen. The arrest of five senior leaders last fall and the beginning of hearings in November convinced many who thought that the trial would never happen. But jailings alone won't make the trials a success.
The structural flaws that have become apparent since the tribunal was established could jeopardize the court's real usefulness. Thanks to a combination of funding mismanagement, allegations of corruption, and donors who are a bit too trusting, the tribunal still runs the risk of becoming a farce, should events get out of hand.
First off, the very compromises that helped create the court have impaired its progress. The responsibilities of the court are split between the U.N. and the Cambodian government, which provides fertile ground for miscommunication and delays. At time of writing the official courtroom still wasn't ready for hearings, although pretrial hearings (in a different courtroom) began Nov. 20.
The translation team for the trilingual court (Khmer, English and French) is already backed up by months, unable to handle the 300,000 pages of documents that judges need to sift through. The witness-protection team, which had somehow been left out of the initial budget for the court, has only a skeleton staff and still lacks a director.
At Cambodia's insistence, a majority of judges in each chamber is Cambodian, but no decision can be passed unless at least one foreign judge agrees. This system, and the power it hands to Cambodia's famously corrupt judicial system, caused several nations, including the United States, to decline funding for the tribunal. The small handful of hearings held thus far haven't yielded any signs of judicial interference, but given the track record of the rest of Cambodia's judiciary, it can't be ruled out.
The credibility of the court has already been undermined by questions about the oversight of funding for the Cambodian side of the court. The U.N. Department of Economic and Social Affairs helped recruit funding for the Cambodian side of the tribunal, and this funding is overseen by the United Nations Development Program. UNDP's oversight, however, has been less than thorough. An audit initiated by UNDP and conducted in spring 2006 by the U.N. Office of Audit and Performance Review and an external auditor found that the Cambodian side of the court had hired underqualified staff, was paying inflated salaries, and added 52 staff positions without justification. UNDP's response was to bury the report and refuse media inquiries.
Even more serious are allegations of kickbacks raised by the Open Society Justice Initiative in an October 2006 report. In Cambodia it has been traditional practice for civil servants to buy their positions in government, one Western diplomat explained to me. When the current government came to power, the practice didn't disappear–it was merely systematized. Multiple sources said they had heard reports that some court staff were required to pay 20% to 30% of their salary to their higher-ups in order to keep their jobs. To date, however, no staff member has made a formal complaint.
If true, these allegations are the most serious threat yet to the tribunal's mission. Rather than setting an example of justice for the country, the tribunal may be reinforcing the worst habits of Cambodia's justice system.
Many members of the international community seem to believe that any corruption present is limited, and won't interfere with the judicial process. But that view implies a very narrow view of the tribunal's purpose. U.S. Ambassador Joseph Mussomeli put it this way: "We believe the judicial process is proceeding much better than people a year ago would have ever have guessed. Although there were some bumps in the road, it is now clear that either international standards will be met, or, at a bare minimum, the international judges will walk out." In his eyes, that safeguard is enough to ensure that the tribunal isn't a farce.
The corruption allegations are high on the radar of the Cambodian officials involved, as well. The man overseeing the tribunal and responsible for rooting out corruption (or perpetrating it, depending on whom you talk to), is Deputy Prime Minister Sok An. He is Hun Sen's right-hand guy, and the second-most powerful man in the country. Sok An has been involved with the tribunal practically since its inception, and took a leading role in the negotiations with the U.N. that stretched from 1999 to 2003.
In person Sok An is soft-spoken and gentle. His hair is elaborately coiffed, and his glasses and double chin give him a bookish air. When asked how the tribunal is going, he begins by explaining that it has actually set three world records for an international tribunal–for the fastest approval of internal rules (just under a year); the fastest arrests (five people so far); and the smallest budget.
He grows most animated when discussing his vision of the Cambodian tribunal as a pioneering model that other courts will someday follow. "We have a different model, but the world is looking for a better model," he says, gesticulating excitedly. "It is a new model."
His own belief in the importance of the tribunal is perhaps the most reassuring part of our conversation–when it comes to corruption, his words are less convincing. "In every country you have corruption," he begins, "but what is important is our attitude towards corruption." He says that fighting corruption at the tribunal is paramount, because the tribunal serves as an example for the entire Cambodian justice system.
Sok An concludes, "Corruption is not a real problem within the office of administration," referring to the Cambodian side of the tribunal responsible for court administration. But he never flatly denies that corruption might be happening. Neither does Sean Visoth, the director of the office of administration. "We cannot say 'corruption free,'" he says, referring to the court. "We cannot compare it to Hong Kong or Singapore. But we have done everything possible to minimize the risk of corruption."
Sean Visoth explains the steps his office has taken to address the allegations, including putting up suggestion boxes in secluded locations for added privacy, and requiring staff to sign a code of conduct that prohibits taking bribes. Oddly, the code does not prohibit giving bribes, however. He says that if someone came forward with a complaint related to kickbacks, "To have an investigation wouldn't be a big deal."
While these anticorruption efforts are a little underwhelming, the fact that government officials spend so much time talking about them indicates how seriously they take international media's perception of the tribunal. There's a reason for this: Cambodia's ruling party, the Cambodian People's Party, has built its political platform around its opposition to the Khmer Rouge regime. The break isn't as clean as it seems, though, and former Khmer Rouge leaders remain deeply enmeshed in the current government. The arrest of the powerful Ieng Sary last year was seen as a sign that none would be spared in the war-crimes tribunal. But more difficult tests will be ahead. The King Father, Norodom Sihanouk, worked with Khmer Rouge leaders during their rule, and might be called upon to present testimony during the tribunal.
International donors have a large role to play in keeping the tribunal alive and on track, and it should be donor pressure–rather than the moral backbone of the judges or anonymous complaint boxes–that ensures the integrity of the court. The U.N. is planning a major fundraising drive that will likely include one new target: the U.S., which is now reconsidering its earlier decision not to fund the tribunal. The U.N. will be asking for a pretty penny–they are likely to double the court's original budget estimate of $63 million. But there are no signs yet that donors will seize this opportunity to enforce new and better practices–such as a full investigation into the allegations of kickbacks that have dogged the office of administration.
The real measure of success will be the extent to which it can bring a sense of closure to Cambodian people. And surprisingly, the tribunal may already be doing that. "When we started [documentation work] in 1995, it was so hard to get people to talk about the Khmer Rouge," says Youk Chhang, director of the Documentation Center of Cambodia. "But people now speak about this so openly. Freedom has been given to the victims."
Organizations like the Documentation Center of Cambodia have played a large role in getting victims involved. The center has interviewed 5,000 victims of Pol Pot's genocide to record their experiences, and identified hundreds who are willing to be a civil party to the war-crimes trials. Each month the center buses in around 500 people from remote areas to visit the tribunal and learn about Pol Pot's regime. Less educated Cambodians often have little knowledge of events under the Khmer Rouge and have trouble believing their own countrymen were responsible for the genocide. That history is so sensitive it wasn't covered in national curricula until a few years ago, and most Cambodians alive today weren't around to witness the atrocities–over half of Cambodia's population is under 21 years old.
The history of the Khmer Rouge is still palpable in Cambodia not just because of its psychological impact, but also because of its economic impact. Although Cambodia's economy now is humming along, the country's infrastructure remains in tatters thanks to the decades of war. Annual GDP per capita (adjusted for purchasing power parity) is a meager $2,800.
In a perverse way, this legacy of destruction has made the job of the current government a bit easier. Prime Minister Hun Sen came to power after helping overthrow Pol Pot's regime, and his Cambodian People's Party still draws much of its legitimacy from its record of opposition to the Khmer Rouge. The tribunal further reinforces this narrative, helping Hun Sen and his colleagues differentiate themselves from the genocidal Khmer Rouge leaders.
But once this history is laid to rest, the Cambodian People's Party will be forced to find other issues on which it can deliver to voters. As the leaders of the Khmer Rouge are brought to justice and as fewer and fewer Cambodians remember the Khmer Rouge era, the CPP's record of opposing the Khmer Rouge will become less relevant than its ability to root out corruption and deliver economic growth. Cambodia's young democracy is still fragile, and the CPP so dominates every aspect of government that free and fair elections are virtually impossible. But in the post-tribunal era, perhaps that's something that voting citizens will begin to take action on.
This would be the best possible outcome for the tribunal: Not just putting a handful of elderly murderers behind bars, but enabling the nation to take one step further on the road to recovery from Pol Pot's regime. Whether or not that happens depends on whether the trial can gain real legitimacy.
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