Donors must demand reforms before pledging funds

Bangkok Post

KILLING FIELD TRIALS

SARA COLM

The long-delayed trials of the leaders of the Khmer Rouge began dramatically last week with a judicial ''re-enactment'' at the regime's notorious Tuol Sleng prison, where more than 14,000 people were tortured and executed from 1975-79.

Part courtroom, part spectacle, the three remaining prison survivors were brought face-to-face with Kaing Gech Eav (Duch), the former prison chief, as he led international and Cambodian judges, prosecutors, lawyers and a coterie of court photographers on a tour of the prison.

Officially called the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Khmer Rouge Tribunal is a ''hybrid'' court, consisting of a majority of Cambodian judges sitting alongside international judges, with international and Cambodian co-prosecutors.

Duch is among five former Khmer Rouge leaders jailed on charges of crimes against humanity and war crimes for the deaths of as many as two million Cambodians during their four-year rule, which ended in 1979.

Last December, Duch made his first public appearance before the tribunal to appeal for release from pre-trial detention. His hearing stands in contrast to most judicial proceedings in Cambodia.

Often the accused do not have access to a lawyer. If they do, they often will not have met the lawyer before going into court.

During trials, judges have been known to arbitrarily refuse to admit defence evidence and issue verdicts written in advance of the court hearing. In politically sensitive cases, judges receive ''guidance'' and instructions from senior political and government figures.

For most Cambodians, a courthouse is not a place to seek justice. Whether in criminal or civil proceedings, the rich and the powerful almost always come out on top. When a wealthy and well-connected complainant's case comes before a court, judges routinely ''bid'' on which one will be the lucky one to get the case _ and the financial rewards. Many Cambodians' experience of ''justice'' is finding the appropriate clerk to pay off in hopes that the judge will decide in one's favour. If you don't have money, you don't win.

It is in this environment that Cambodia's Khmer Rouge trials are taking place. The five arrests, high-profile hearings and investigations have given hope to some that the long-stalled process of bringing the Khmer Rouge to justice may finally yield results. But as international donor countries consider a request for an additional US$170 million (5.2 billion baht) in the coming weeks, they should be cautious and insist upon significant reforms before pledging more.

The ECCC was established as a special chamber within the Cambodian court system to try ''senior leaders'' and ''those most responsible'' for crimes committed by the Khmer Rouge from 1975-79. The UN initially opposed the hybrid arrangement, fearing that the Cambodian government would try to manipulate the tribunal and limit its independence. Cambodia's judiciary is widely known for its lack of independence, rampant corruption, and low professional standards. These problems remain, making it critical that all other parts of the ECCC function properly for there to be any chance that the process will be credible.

Chief among the issues that have yet to be resolved is just how far the ECCC will be willing to go in following the evidence and identifying additional individuals to investigate and prosecute. The Cambodian government would like as few prosecutions as possible in order to claim that it did its part in holding the Khmer Rouge accountable without implicating current figures in the Cambodian government, some of whom are former Khmer Rouge members.

But can the ECCC be credible if it only tries a pre-selected handful of individuals? ECCC budget projections presented to the donors in January indicate that at most three more individuals may be prosecuted.

While the five charged so far are key figures, large numbers of other alleged perpetrators _ including former Khmer Rouge government officials, senior military officials and regional authorities continue to live freely. Donors must ensure that the ECCC has the financial support and independence necessary to bring additional accused to justice.

Other issues facing the ECCC include the need for proper witness and victim protection programmes, without which it will be hard to conduct prosecutions or allow victims to safely participate as civil parties. Questions have already been raised as to how the ECCC can protect the witnesses who participated in last week's on-site investigations when the ECCC's witness unit is barely functioning.

Funds are also needed to hire sufficient investigators to carry out thorough and professional investigations; and a serious public outreach campaign to allow average Cambodians access and understand the process. Steps must also be taken to address serious allegations of corruption, kickbacks and mismanagement on the Cambodian side of the tribunal.

Rights observers have already questioned the legitimacy of some of the decisions that have been reached by the ECCC and the independence and commitment of some of the judges.

In February, for example, the ECCC overturned a motion for one of the Cambodian judges, Ney Thol, to be disqualified. As president of the military court, Ney Thol has presided over several show trials of Prime Minister Hun Sen's political opponents, with little regard for due process, the right to fair trial or even the jurisdiction of the court.

All of this makes the need for reforms within the ECCC urgent. Before contributing more funds, donors must demand greater accountability and a timetable for implementation of concrete reforms to effectively address the corruption allegations and rectify serious deficiencies in the court's management and administrative leadership.

The court also needs to be more transparent, so that justice is not only done, but seen to be done by Cambodians.

An essential first step is for the UN to promptly appoint a high-level adviser to the ECCC, with the diplomatic clout and competence to implement these critically needed changes. International assistance must aim to ensure that Cambodia's national practices rise to international standards, instead of lowering international standards to meet domestic practices such that they taint the UN's name and compromise international justice.

Only if donors and the UN insist on all possible safeguards, will it be possible for the Khmer Rouge tribunal to deliver to Cambodians the justice for which they have long been waiting.

Sara Colm is a senior researcher on Cambodia for Human Rights Watch.