The Khmer Rouge tribunal: Lessons for Kenya?

Criminal trials in international tribunals or tribunals with national and international membership are increasingly being viewed as the only way to bring dictators and other highly-placed state officials responsible for the misery of thousands to justice. The best-known instance of this kind of hybrid court is the Cambodian tribunal for the trial of leading members of the Khmer Rouge regime. There are similarities with Kenya, and interestingly, Kofi Annan played a key role in the establishment of the Cambodian tribunal.

In the mid 1970s, the Khmer Rouge, a communist party, committed to the ‘moral’ regeneration of Cambodia, seized power and embarked upon the total re-organisation of state and society. It perpetrated the worst atrocities anywhere since the Nazi Holocaust. Millions of people were forcibly moved out of cities into the countryside, subjected to forced labour, humiliated, tortured, and killed – 1.7 millions of them, a quarter of the population.

In Cambodia, as in Kenya, a compelling reason for an international or a hybrid court is the weaknesses in the national legal and judicial system. The Khmer Rouge regime had destroyed the previous system, including statute books and legal records, and killed such judges and lawyers as were unable to flee the country. Key members of the regime that came into power after the UN’s ‘rehabilitation’ of the country with close association with the Khmer Rouge movement had little inclination to institute legal proceedings against those most responsible for the genocide and other crimes. Even now, judges and prosecutors are dominated by the government. There is total absence of the rule of law.

Unlike Kenya, the purpose of the special tribunal was not to deal with immediate or contemporary problems but the recent past. Its main objective was accountability to Cambodians for the crimes of the Khmer Rouge. There was an element of national reconciliation, perhaps more accurately, putting the past behind them. It was also intended to repudiate emphatically the practice of impunity which characterised past and present regimes. It was to promote awareness among the people about the meaning of justice and to begin the journey towards the rule of law.

ESTABLISHING THE CAMBODIAN TRIBUNAL

The international community played a key role in bringing peace in Cambodia after the collapse of the Khmer Rouge regime. The UN helped to rehabilitate the infrastructure and the economy, and in the transition to democracy. After a general election and a new constitution, the UN was given a special role to monitor and strengthen the protection of human rights, with the assistance of the secretary general’s special representative for human rights.

The process of negotiating and organising an internationally-acceptable tribunal for trials of Khmer Rouge leaders started in 1997. Eminent experts advised Secretary General Kofi Annan that, due to wide-scale corruption among judges and prosecutors, and their subservience to the government, it was impossible for a local tribunal to conduct fair and credible trials. They also ruled out a hybrid court, being convinced that its Cambodian members would take orders from Prime Minister Hun Sen, who, along with some of his cabinet colleagues, had previously been part of the Khmer Rouge. It recommended a fully international tribunal, sitting outside Cambodia (avoiding any possibility of government interference) but in a neighbouring country, so that Cambodians could follow the proceedings. Kofi Annan favoured this approach but not so the Cambodian government.

THE UN–CAMBODIA AGREEMENT AND THE STATUS OF THE ECCC LAW

After long and intense negotiations, in which almost all the points of a UN draft were rejected by the Cambodian government, and under pressure particularly from the governments of France and Japan, UN negotiators reached an agreement based largely on a 2001 Cambodian law which envisaged a tribunal which was part of the Cambodian system.

However, the Extraordinary Chambers in the Courts of Cambodia (ECCC) is detached from the Cambodian system, having a self-contained system of investigations, prosecutions, trials and appeals, unconnected to the rest of the national system. The UN was also able to extract the concession that although the tribunal would operate under Cambodian law (which included elements of international law), this could not be amended without consultation with the UN. And it agreed that if the ECCC did not or could not function independently in accordance with the agreement, the UN would withdraw and provide no further assistance.

STRUCTURE OF THE ECCC

The principal organ is the Trial Chamber and the Supreme Court Chamber. Following the French legal system, there are investigating judges who review the investigations conducted by the prosecutions and decide whether the case can proceed. There are also offices of the prosecutors and defence, supported by the UN.

The Supreme Court Chamber consists of four Cambodian and three international judges and the Trial Court of three Cambodian and two international. There are two co-investigating judges and two prosecutors, for each one local and one international member. The local judges and prosecutors are appointed by the Cambodian Supreme Council of Magistracy (an independent, constitutional body) and the international by the same body from a list of nominees presented by the UN secretary general. Thus the Cambodian authorities make the final decision even on international judges and prosecutors (although within limits), while the UN has no say on local judges. The appointments are made for the duration of the tribunal. The law says that judges and prosecutors should be persons of high moral character, integrity, impartiality and ‘independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source’.

DECISION MAKING

The law enjoins all judges and prosecutors to ‘attempt to achieve unanimity in their decisions’. If investigating judges or prosecutors cannot agree, the case proceeds, but either collectively or individually, they can refer the matter to the judges of a special court, the Pre-Trial Court. This court consists of five judges, three Cambodian (including the presiding judge) and two international, and may, by a vote of at least four judges, stop the trial. The decision of the Trial Court is also made by at least four of the five judges, and that of the Supreme Court by at least five judges. When the court is divided, both majority and minority judgments must be delivered.

Thus at least one Cambodian and one international judge must concur in making a decision. Each side has a veto (and unfortunately, the way the tribunal has worked so far, it is quite fair to talk of ‘two sides’). But the Cambodian side is better placed, for it needs to persuade only one international judge, while the international ‘side’ has to persuade at least two Cambodian judges. The UN negotiators argued for a majority of international judges and prosecutors, but lost! This result is strange, since the international judges have, as expected, greater expertise in the law about war crimes and crimes against humanity, and longer judicial experience than their Cambodian counterparts.

The fears of the UN teams of experts and negotiators have proved justified. Cambodian judges were effectively appointed by the government. They had not previously distinguished themselves by legal scholarship or moral integrity. The Cambodian judges and prosecutors have come under considerable pressure from the government. The Cambodian prosecutor has refused to charge anyone beyond the original five, elderly accused. The law provides no procedure for the removal of a judge or prosecutor who disregards the requirement of independence or for other misconduct. Public and professional expectations that they would act independently are low.

ADMINISTRATION OF THE ECCC

The ECCC has, at the insistence of the Cambodian government, no registrar as head of the administration and representative of the court – only an office of administration, headed by a Cambodian-appointed director. This gives the Cambodian government great control over the administration, critical to the functioning of the tribunal. Numerous allegations of corruption have been made against the Cambodian judges and staff.

FUNDING OF THE ECCC

In principle, the UN is responsible for the expenses associated with international participation, including the salaries of international judges, prosecutors, defence and administrative staff, and security arrangements. The Cambodian government is responsible for the salaries of local judges, prosecutors and staff, and provides the premises. It is now clear that the trials will take longer than anticipated (even if no new additional persons are charged). The total costs will certainly exceed US$100 million (from the original estimate of around US$19 million). The UN is expected to pick up at least 90 per cent of the cost. Cambodia has been reluctant to deliver its contribution and friendly governments have paid substantial sums for it.

Kofi Annan’s request for funding from the regular UN budget was rejected. Though there is a trust fund administered by the United Nations Development Programme (UNDP), there are always financial pressures, throwing into doubt the continued existence of the tribunal, the completion of trials of accused already indicted, and has a dampening effect on investigations for fresh indictments.

JURISDICTIONAL ISSUES

The applicable law is a combination of Cambodian and international law. The international crimes include genocide, crimes against humanity, and war crimes. Cambodian crimes (provided for under the ECCC law) include homicide, torture, religious persecution and destruction of cultural property in armed conflict.

Persons to be tried are ‘senior leaders of Democratic Kampuchea [i.e., the Khmer Rouge regime] and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia’ between 1975 and 1979.

There was considerable discussion before the tribunal was set up as to who should be tried, and how many. The Cambodian government was anxious to limit the trial to two or three persons. The expert team had envisaged about 20. Recently, it became public that the Cambodian prosecutor on the tribunal has refused to sanction any new prosecutions, contrary to the assessment of the international prosecutor. There is also the issue of the cut-off date for prosecution, since atrocities have continued to be committed, implicating several senior members of the current government.

It is generally accepted that due to the problem of time and money, only a handful of accused can be tried in international tribunals. Still, to restrict trials to old men who will only be kept alive to stand trial through intensive medical treatment, and who have freely admitted their guilt and remorse, seems to go against the whole idea of such trials.

LEGAL PROCEDURE AND REPRESENTATION

The Cambodian rules of procedure apply but where they are unclear or inconsistent with international standards, ‘guidance may also be sought in procedural rules established at the international level’. The working languages are Khmer, French and English. There are French judges and prosecutors and several French lawyers have appeared as counsel, and the translation of huge bundles of documents into French has seriously delayed proceedings.

The rights of the accused include the full protection ensured in the International Covenant on Civil and Political Rights, including presumption of innocence, fair and public hearing, and legal representation. The tribunal has recruited experienced lawyers who represent the accused. Representatives of member states of the UN, of the secretary general, of the media and of national and international NGOs are guaranteed access at all times to the proceedings (unless publicity would prejudice justice). NGOs are playing a critical role in monitoring and identifying improper practices, despite the government’s attempts to muzzle them (including threats of deportation against staff of international NGOs).

PROTECTION OF WITNESSES, EXPERTS AND MEMBERS OF THE ECCC

The agreement says that witnesses and experts, the judges, or the co-prosecutors shall not be prosecuted, or subjected to any restriction on their liberty by the Cambodian authorities. They shall not be subjected by the authorities to any measure which may affect the free and independent exercise of their functions.

PUNISHMENT, PENALTIES, AND AMNESTIES

Cambodia is notorious for impunities that members and friends of the government enjoy as well as for the harassment of its opponents through prosecutors and judges. Constitutionally, pardons and amnesties can only be granted by the King at his own discretion, but in practice decisions on these matters are the prime minister’s. The agreement forbids an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present agreement. Consistent with UN practice, the maximum possible penalty is life imprisonment.

EXPERIENCE

The institutions and rules for decision making are complex, indeed cumbersome. They require constant negotiations between the international and local judges, prosecutors and administrative staff. The use of three languages and some tensions between judges trained in the common law and those in the civil law have added to the problems.

The ECCC has failed to live up to the standards in the agreement, whether with regard to the professional quality of judges and other staff, or the integrity and impartiality of local appointees. The international judges and prosecutors have tried to follow the letter and spirit of the agreement (and introduced high standards of research, investigation, and the writing of decisions and judgments with proper exploration of international law and jurisprudence). But their frustration at the obstacles that face them is well known. There is considerable tension between them and their counterparts, presumably because of the executive pressure on the latter (some of whom struggle to maintain standards in difficult circumstances). The Cambodian government has interfered in various ways in the work of the ECCC. In this way the weakness and corruption within the national legal system have infected the ECCC, instead of the ECCC influencing the conduct of local judges and prosecutors.

Nor have the other objectives of the ECCC – reconciliation, the denunciation of impunity or the condemnation of violence – been achieved. And yet it is not possible at this stage for the UN to withdraw participation and assistance.

LESSONS FOR KENYA

If the national regime is not interested in the punishment of perpetrators of crimes against humanity, and particularly if important members of the government may have been implicated in the violence, it is exceedingly hard for the international community, particularly through a hybrid tribunal, to ensure that justice is done.

Secondly, criminal trials cannot achieve the variety of tasks (including ‘transitional justice’) envisaged in Cambodia, and their tasks should be confined to impartial and thorough investigation, fair trials and the punishment of those guilty.

Thirdly, structural features, including the balance between local and international components and the extent and form of funding, will determine the effectiveness of the tribunal.

And lastly, it is important to have adequate systems of monitoring, both official and non-governmental. Looking at the recommendations of the Waki Commission, it seems that some of these lessons have been taken on board, and others should be included in the statute of the Special Tribunal.

* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a Special Representative of the UN secretary general in Cambodia on human rights.
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