JURIST Special Guest Columnist Craig Etcheson, author of After the Killing Fields: Lessons from the Cambodian Genocide (2005) and a Visiting Scholar at Johns Hopkins University's School of Advanced International Studies, says the time has come for the United States to throw its full diplomatic weight behind the new Cambodia-UN Khmer Rouge Tribunal finally being set up in Phnom Penh...
The Extraordinary Chambers in the Courts of Cambodia, as the Khmer Rouge Tribunal is formally known, is an experimental form of internationalized justice that attempts to reconcile the principle of complementarity with international concerns for due process and judicial independence. The two-chamber special court will have a majority of Cambodian judges at each level, working alongside a minority of international jurists nominated by the UN. Decisions in chambers will be taken by a "super-majority principle", which requires international jurists to concur in any judgment. Cambodian and international co-prosecutors and co-investigating magistrates are to cooperate in trying a small group of surviving Khmer Rouge leaders, with the personal jurisdiction of the court defined as "senior leaders" and "those most responsible for the most serious violations". Temporal jurisdiction will be April 17, 1975 to January 6, 1979, the period when the Khmer Rouge occupied Cambodia's capital. Subject matter jurisdiction encompasses war crimes, genocide, crimes against humanity, crimes against internationally protected persons, and violations of Cambodia's 1956 Code Penal.
Negotiating the jurisdictional contours of the court was challenging in part because the Cambodia's ruling party is led by former low- and mid-level Khmer Rouge officers, and a few of them have what is euphemistically known as "interesting resumes". Moreover, Cambodian Prime Minister Hun Sen is in the habit of using Cambodia's courts to harass his domestic political opponents. Recent arrests of Cambodian politicians, labor leaders, journalists, and human rights activists on flimsy charges have only underscored this tendency. Historically, Cambodia's court system has never exhibited a strong sense of judicial independence.
This goes a long way toward explaining why some international human rights organizations remain wary of the proposed process. Human Rights Watch recently suggested it is "increasingly doubtful that a tribunal established within the Cambodian court system would ensure fair and impartial trials." Cambodian human rights campaigners, however, take a more realistic view, aware that transitional justice processes are inherently political, and that politics is the art of the possible. The Documentation Center of Cambodia's Youk Chhang, for example, argues that "some people want a perfect trial, but this is what we have. Let's make the best of it."
It is time to do just that, for the tribunal is fast approaching. On January 18th, the tribunal's recently appointed chief administrator took possession of the court's premises from Cambodia's Royal Armed Forces at Kambol outside Phnom Penh. The UN and Cambodia have largely completed the process of selecting judges and prosecutors, and will soon be announcing those appointments. They are now recruiting lower-level staff such as deputy legal officials, investigators, computer specialists and translators. Some of the finalists for the key international slots bring impressive credentials to the bench. The court's nascent administration has also begun taking initial steps to organize the already-mammoth amount of potential evidentiary material for the projected three years of proceedings. Much of that material was collected with funding from the United States government.
From 1994 to 2000, the United States played a pivotal role in shepherding the Khmer Rouge Tribunal into being. In 1994, the US adopted the Cambodian Genocide Justice Act, which made it "the policy of the United States to support efforts to bring to justice members of the Khmer Rouge for their crimes against humanity." In mid-1990s, the US funded the establishment of the Documentation Center of Cambodia, which has become the premier repository of evidence on Khmer Rouge crimes. In the late 1990s, US diplomats played a hands-on role in helping the Cambodian government devise the Extraordinary Chambers, creating the institutional structure for the coming proceedings. The US also was a key player in crafting the compromise between Cambodia and the UN Secretariat that persuaded the world body to participate in the trials.
With the election of George W. Bush in 2000, however, the US government dropped the ball, and has been largely silent on the issue ever since. But with Condoleezza Rice's elevation to the post of Secretary of State, and the recent departure of Ambassador Pierre Prosper from State's Office of War Crimes Issues, officials in Foggy Bottom have begun to reassess the policy of benign neglect that has governed Cambodian genocide justice policy in Washington for the last five years. This reassessment should result in a US re-engagement with the Khmer Rouge Tribunal.
The State Department has hinted in recent months that the US might contribute financially to the Khmer Rouge Tribunal if it shows itself to be "independent" and up to "international standards". Rather than standing by and clucking as the proceeding unfolds, however, the US can do more to assure that the tribunal is as good as it can be by becoming actively engaged in the process. The UN's expenses for the tribunal have already been largely subscribed by other international donors, but the US might consider contributing to the UNDP fund that is being established to defray Cambodia's tribunal costs. This is newly possible because this year Congress dropped legislative restrictions on US assistance to the tribunal. Alternatively, the US could fund training programs for Cambodian and international officials of the tribunal, and direct resources to some of the many civil society organizations that are working to prepare for the trials. These NGOs will need on-going support during the three-year duration of the trials as they engage in monitoring, outreach and other activities in conjunction with the tribunal.
Most of all, however, the State Department could make a difference on the Khmer Rouge Tribunal simply by throwing its weight behind the process. The tribunal should once again become a priority not only at the US Embassy in Phnom Penh, but also at the Office of War Crimes Issues, the Office of Legal Affairs, the Office of Reconstruction and Stabilization, the Bureau of East Asian and Pacific Affairs, the Bureau of Democracy, Human Rights and Labor, and the US mission at the United Nations. Secretary Rice needs to get her people singing off the same sheet of music. When US ambassadorial-rank diplomats join with those at the deputy and assistant secretary levels to consistently and coherently press their concerns, UN and Cambodian bureaucrats sit up and take notice. The United States has exercised no leadership on the Khmer Rouge Tribunal for the last five years, and it is high time that it did.
Craig Etcheson is a Visiting Scholar at Johns Hopkins University's School of Advanced International Studies. His most recent book is After the Killing Fields: Lessons from the Cambodian Genocide (Praeger 2005).