POLICY BRIEF #1
THE KHMER ROUGE TRIBUNAL:
OPTIONS FOR THE UNITED STATES
AND THE INTERNATIONAL COMMUNITY
By Craig Etcheson
Visiting Fellow, School of Advanced International Studies
Johns Hopkins University
(Editor’s Note: Twenty-seven years after the Khmer Rouge were driven out of power in Cambodia, the prospects for a tribunal to prosecute crimes against humanity are more promising than ever before. The United States was one of the chief architects of the prospective tribunal, but US policy is in stalemate, and no official American funds have been appropriated for the exercise. Reconciliation after a prolonged period of gross human rights abuse is inherently complex, contradictory and incomplete, all the more so in Cambodia, where the genocide was one of the worst in recorded history, and international politics delayed accountability for decades. Dr. Craig Etcheson is one of the foremost authorities on reconciliation in post-conflict societies, and a particular expert on Cambodia. His most recent book is After the Killing Fields: Lessons from the Cambodian Genocide. He offers his analysis of the current situation for the first brief in a series on U.S. policy in Vietnam, Laos and Cambodia produced by the Fund for Reconciliation and Development. The purpose of this series is to stimulate policy discussion, and the views articulated in the briefs are those of the authors. This brief may be quoted or reproduced for educational not-for-profit circulation, but we request that the author and FRD be credited. Additional information on this issue and others pertaining to US policy in the three countries can be found on the Fund’s website, www.ffrd.org. Questions and comments may also be directed to Dr. Etcheson at email@example.com. - Catharin Dalpino, Washington Representative, FRD.)
Between 1.7 and 2.2 million Cambodians lost their lives in the Khmer Rouge state of Democratic Kampuchea from 1975 to 1979, or one quarter to one third of the entire population. A 1999 report by a UN Group of Experts found prima facie evidence to conclude that this period of Cambodian history was marked by war crimes, genocide, other crimes against humanity, and other serious violations of international humanitarian law and international criminal law. Pursuant to a request from the Cambodian government for assistance in achieving accountability for those crimes, an agreement between the UN and Cambodia was reached after more than five years of difficult negotiations. The UN-Cambodia agreement will establish a unique new form of mixed national-international criminal tribunal, the first internationalized judicial exercise providing majority control of the legal proceedings to the government on whose territory the offenses were committed.
In 2001, Cambodia promulgated a law to govern the conduct of the Khmer Rouge tribunal, known as the “Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea.” On October 5, 2004, Cambodia’s National Assembly adopted 23 amendments to the 2001 law, as suggested by the UN’s Office of Legal Affairs. The previous day, the Cambodian parliament also approved a Memorandum of Understanding with the UN on tribunal cooperation, an agreement that had been adopted by the UN General Assembly some seventeen months before. On November 4 of last year, the government deposited the instrument of ratification for the UN-Cambodia tribunal agreement with the UN Secretariat, formally completing the legal requirements for the establishment of the tribunal.
Current Status of Preparations
Beyond the legal requirements, technical preparations for the tribunal have been quietly proceeding, with significant progress registered in a number of areas. A broad spectrum of stakeholders has become substantively engaged, including the Royal Government’s Task Force on the Khmer Rouge Trials, a UN organ known as UN Assistance to the Khmer Rouge Trials (UNAKRT), other UN agencies, a Group of Interested States, and working groups of international and Cambodian NGOs.
The Group of Interested States (GIS), an ad hoc body of some twenty-five Member States, has been increasingly active in the process since mid-2002. This group was particularly crucial in shepherding negotiations between the Royal Government and the UN to a successful conclusion in 2003. During 2004, the GIS engaged with the UN Secretariat in a series of negotiations on the tribunal budget, attempting to trim costs to the minimum consistent with fair and efficient proceedings. These states will continue to have an essential role to play going forward, both in providing financial support for the tribunal, and in monitoring the performance of the key actors through the course of the tribunal.
The government’s Task Force for the Khmer Rouge Trials is the focal point of tribunal-related activity in Cambodia, though it is not the only key government agency involved in the preparations. The government has also appointed a committee to take charge of security for the tribunal, and other entities will also play important roles. In early 2004, government officials leaked two evidently competing lists of approximately thirty putative candidates for the eighteen tribunal slots that are to be filled by Cambodian nationals with the rank of judge. In autumn 2004, and again in April 2005, initial rounds of training were conducted for those candidates at the Royal School of the Magistracy, with the assistance of the UN Development Program. Personnel involved in this initial training have privately suggested that significant additional training will be required in order for the Cambodian judges to develop the necessary proficiency in international humanitarian law.
Potential appointees for the international positions on the tribunal have not yet been publicly named, although several states – including France, Britain, Switzerland and Japan – have made known their intention to nominate candidates. Training in Cambodian law will be necessary for the international jurists. A two-week training session for defense attorneys commenced in June 2005, while additional training for court clerks, security officers, administrative personnel, and other participants is still in the planning stages.
In March 2004, UNAKRT and the Task Force agreed on a venue for the tribunal; the chambers were to sit at Chaktomak Theater, and the administrative offices were to be installed at the National Cultural Center, both of which are located in central Phnom Penh. In January 2005, however, the government abruptly declared that it would relocate both the chambers and the administrative offices to a recently constructed military base in Kandal Province, several miles west of Phnom Penh. The UN has not yet agreed to this proposal, and the matter has aroused some controversy within the Secretariat, as well as among advocacy groups.
An initial draft of internal rules of procedure and rules of evidence for the Extraordinary Chambers was submitted in August 2004 to the government’s Task Force by an international legal expert, and was to have been delivered to the Supreme Council of the Magistracy for consideration. Meanwhile, a second draft is currently being vetted by a pro bono group of international experts, in response to feedback from the Task Force. However, questions have been raised as to whether Cambodian law would permit the Extraordinary Chambers to adopt its own rules. Accordingly, an alternative proposal has been put forward to accelerate the process of adopting Cambodia’s long-delayed and still-unapproved new criminal procedure code, and having the tribunal function under that code. In June 2005, a Task Force source suggested the chambers would be encouraged to adopt its own internal regulations, but a definitive resolution of these questions is urgently needed.
A Working Group of international NGOs has conducted approximately ten missions to Cambodia in preparation for the trials, and recently established a permanent office in Phnom Penh. The Working Group has been providing technical assistance to the government and civil society, as well as liaising among other stakeholders in the diplomatic and intergovernmental communities. It has produced a broad range of briefing papers on diverse aspects of the process, and provided numerous experts with experience in previous internationalized trials to consult with stakeholders. A minority of the international NGO community, notably Human Rights Watch and Amnesty International, remains skeptical of the process, arguing that the proposed structure of the tribunal does not provide adequate guarantees of judicial independence.
Cambodian NGOs have also begun to design a variety of tribunal-related projects in the areas of monitoring, outreach, mental health services, and other activities, coordinating their efforts through the Cambodian Human Rights Action Committee. The Documentation Center of Cambodia has numerous projects under way, and the Khmer Institute for Democracy has developed an outreach project. Several other organizations have projects in the planning stage. Due to the fact that most NGO projects in Cambodia are “donor- driven,” however, several NGOs are awaiting indications from the donor community that projects in connection with the tribunal will be funded.
Some potential defendants have begun the process of retaining legal counsel and formulating defense strategy. Several have also been engaged in lively public relations campaigns, apparently attempting to influence both public opinion and Royal Government policy in advance of their possible indictment.
Finally, the Cambodian government has also begun attempting to involve the Cambodian public in the process. In March 2004, government officials began to explore ways domestic NGOs can formally assist in the conduct of the tribunal. In October 2004, the government distributed 16,000 copies of a glossy Khmer-language brochure, explaining to the public what it can expect from the tribunal. Since early 2005, the Task Force has begun to use the media more effectively to communicate with the Cambodian and international publics. Managing public expectations will be crucial to the success of the entire process.
Thus it appears, for the first time in the long saga of the proposed Khmer Rouge Tribunal, that all key stakeholder constituencies are behaving as if the trials will actually happen in the foreseeable future.
US Policy on the Khmer Rouge Tribunal
The United States government has played a profoundly formative role in bringing the Extraordinary Chambers to fruition. From the adoption of the Cambodian Genocide Justice Act in 1994, through State Department support for the activities of Yale University’s Cambodian Genocide Program, to the intense activism on this issue exhibited by Secretary of State Madeleine Albright and former Ambassador at Large for War Crimes David Scheffer, US efforts have to a significant extent shaped the outcome of the entire exercise. US Senator John Kerry also played a crucial role, helping to forge compromises among the parties at several key junctures in the negotiations. Since the election of President George W. Bush, the US has adopted a much lower profile on the Khmer Rouge Tribunal, but has continued to influence events from behind the scenes.
On international justice issues in general, the Bush Administration has maintained the long-standing policy of US support for the prosecution of international crimes. However, in so doing, the US has been pursuing a strategy of encouraging the proliferation of ad hoc international tribunals, in an effort to blunt the authority of the nascent International Criminal Court (ICC). This has been seen most recently in the proposal by Ambassador at Large for War Crimes Pierre Prosper to establish an ad hoc tribunal to prosecute crimes in the Darfur region of Sudan, rather than referring the matter to the ICC, as the majority of UN Security Council members demanded. (This US proposal was defeated.)
In Cambodia, this policy has translated to continued support for the mixed national-international Khmer Rouge tribunal. A December 2004 statement by Oscar DeSoto of the State Department’s Office for the Promotion of Human Rights and Democracy asserted:
The United States is committed to achieving accountability for the atrocities committed by the Khmer Rouge regime in Cambodia and supports efforts that will bring to justice senior leaders of the Khmer Rouge and others most responsible for the crimes. It is our hope that with international participation and strong support, a tribunal will be able to effectively carry out a mandate in accordance with international standards of justice, fairness, and due process.
However, at the initiative of Senator Mitch McConnell [R-KY], Congress renewed existing restrictions on any US funding for the Khmer Rouge Tribunal, extending that prohibition into fiscal year 2005. Section 554(e) of the Consolidated Appropriations Act of 2005 provides that
None of the funds appropriated or otherwise made available by this Act may be used to provide assistance to any tribunal established by the Government of Cambodia unless the Secretary of State determines and reports to the Committees on Appropriations that: (1) Cambodia’s judiciary is competent, independent, free from widespread corruption, and its decisions are free from interference by the executive branch; and (2) the proposed tribunal is capable of delivering justice, that meets internationally recognized standards, for crimes against humanity and genocide in an impartial and credible manner.
While in theory the Secretary of State might make the required determination, and thereby evade the Congressional restrictions, it would be extraordinary for President Bush to allow Secretary Rice to antagonize a key Senate ally in such a manner over this issue. Consequently, US financial support for the Khmer Rouge Tribunal appears unlikely at present.
The State Department, however, hastens to add that these restrictions should not be seen as an indication of administration policy. According to Oscar DeSoto,
Due to congressional restrictions, the United States cannot financially support the Khmer Rouge Tribunal. However, it is important to clarify that this funding restriction is not a reflection of our genuine support for one. This year, the United States allocated $2 million to support an NGO whose objective is to seek justice by documenting and compiling evidence of atrocities in order to build the historic case against the Khmer Rouge.
The Documentation Center of Cambodia received these funds, adding significantly to the support it receives from other international sources. In May 2005, Ambassador Prosper announced that the US government would like to support the tribunal both politically and financially, but that this will depend upon the quality of the Cambodian and international appointments to the tribunal. If those appointments are of sufficiently high quality, Prosper suggested, the Bush Administration will be able to provide the US Congress with the certifications necessary to overcome the restrictions imposed by Senator McConnell.
The projected up-front cost of the tribunal is $56.3 million, or $61.6 million including in-kind costs that will be borne by the Cambodian government. This amounts to a cash requirement of approximately $19 million per year for the planned three years of deliberations. UN Secretary-General Annan originally specified that he would not permit creation of the Khmer Rouge Tribunal until the first year of funding had been received by the UN Trust Fund established for the tribunal, and the remaining two years of funding had been fully pledged by donors. Similar requirements were enacted during the run-up to the Special Court for Sierra Leone (SCSL), but when pledges neared but did not quite reach the goal, the Secretary-General acceded to pressure from the donor community to allow the establishment of that court. However, subsequent reneging on pledges by some donors has combined with higher than estimated expenses to saddle the SCSL with on-going budgetary difficulties. The UN Secretariat has repeatedly signaled that it earnestly desires to avoid the repetition of such a scenario in the case of the Khmer Rouge Tribunal.
On February 1, 2005, the Japanese Diet approved a FY05 contribution of US$18.5 million for the tribunal, on top of the $3 million previously committed by Japan. Japan delivered this contribution to the UN Trust Fund in March, satisfying Secretary Annan’s first-year-cash-on-hand requirement. A donor conference convened at the UN on March 28 garnered pledges from a dozen additional states, covering most of the remaining UN share of the tribunal budget. Combined with additional pledges in the following weeks, pressure from Japan, Australia, and France persuaded Secretary Annan to announce on April 28 that the financial requirements for the tribunal had been met and that the UN-Cambodian Tribunal Agreement was now in force. In June 2005, the Royal Government accepted a Japanese proposal to fund the bulk of Cambodia’s share of the tribunal budget.
Likely Near-Term Developments
UNAKRT developed an implementation time line for the court aiming for tribunal start-up at six months after ratification of the UN-Cambodia Agreement by Cambodia’s National Assembly. National Assembly ratification occurred on 4 October 2004, which, if the original UNAKRT plan had been maintained, would have put start-up at April 2005. Though this schedule slipped due to delays in securing funding, the Cambodian government has more recently projected that the tribunal will convene in July 2005. On May 8, 2005, the UN closed nominations for the key post of Deputy Administrator, and it is said that the Secretariat aims to have that individual appointed and in place by July. This would mark the formal launch of the Extraordinary Chambers, as the senior international and Cambodian administrators begin to assemble the physical apparatus of the court and hire legal and support staff.
Potential Scenarios Going Forward
Judging by the numerous reports he has issued on the subject, UN Secretary-General Kofi Annan is not enthusiastic about the Khmer Rouge Tribunal. He has repeatedly questioned the Cambodian government’s intentions to allow unfettered judicial independence in the conduct of tribunal proceedings. In view of the fairly consistent record of interference in political trials by Cambodia’s executive, this is not an entirely unwarranted concern. Annan fears that participation in such a trial could endanger the UN’s reputation for judicial assistance to countries in transition from repressive regimes. Accordingly, he emphasized in his report of March 31, 2003, that the UN retains the option of withdrawing from the tribunal should the Cambodian government fail to faithfully implement the terms of the UN-Cambodia tribunal agreement.
Nonetheless, it is clear from the voting record that the UN General Assembly strongly supports UN participation in the Khmer Rouge Tribunal. Notwithstanding the concerns of the Secretariat, then, the UN appears to be proceeding with assistance to Cambodia for establishing the tribunal. Even so, the Secretariat has not consistently treated this issue as a matter of priority in recent months. For example, the post of Coordinator of UN Assistance to the Khmer Rouge Tribunal has not had a permanent incumbent since autumn 2004, and this has resulted in numerous unnecessary complications to the UN’s relationship with the Cambodian government. The Group of Interested States has not brought to bear the necessary diplomatic influence to ensure consistent and timely execution of the will of the General Assembly by the Secretariat. Close coordination among all key stakeholders will be essential during the coming crucial start-up phase of the tribunal, and such coordination has been notably absent of late, to the visible detriment of the process.
Once the physical apparatus of the tribunal has been constituted, the implementation plan calls first for the establishment of the offices of the co-prosecutors and co-investigating magistrates. These offices would proceed with an investigation projected to last approximately one year, culminating in indictments of those “responsible for the most serious violations.” In practice, those liable to prosecution are expected to be restricted to a list of no more than ten well-known senior surviving leaders of the Khmer Rouge political and military organizations. Once indictments have been delivered, the Pre-trial and Trial Chambers of the court would be constituted, and the Extraordinary Chambers would proceed into the trial phase. After judgment has been rendered in the first instance, the Supreme Chamber would be constituted in order to hear any appeals. However, appeals of petitions by victims, or of procedural disputes, may require constitution of the Supreme Chamber earlier than envisioned by the implementation plan.
For reasons of economy, present plans thus call for most judges of the Extraordinary Chambers to begin sitting only in Year 2 of the projected three-year duration of the judicial exercise. Only four judges are slated to sit during Year 1. However, this plan appears to fail to take into account a unique feature of the Extraordinary Chambers; a Pre-trial Chamber of five judges has been designated to adjudicate any disputes which may arise among the Cambodian and international co-prosecutors and co-investigating magistrates. Should such a dispute arise in the course of the investigation phase, a delay may therefore ensue while the Pre-trial Chamber is constituted. Any such delays may make it impossible to complete the process within three years.
Many Cambodians will find it extremely gratifying should the tribunal succeed in convicting and condemning several senior Khmer Rouge leaders for the crimes orchestrated more than a quarter century ago. However, once the exercise is complete, many of those same Cambodians may find themselves asking, Is that all there is? Aside from the punishment of perpetrators, there is evidence to suggest that survivors of the Khmer Rouge regime hope the tribunal will answer questions that linger in their minds, particularly the ultimate existential question of “Why?” It is unlikely the tribunal will provide a satisfactory answer to that question. Moreover, the tribunal will also leave thousands of rank and file perpetrators – the people who actually executed the leadership policies – living freely among the population. The Cambodian government is likely to argue that the tribunal has finally closed the dreadful Khmer Rouge chapter of Cambodian history, but the Cambodian people may not fully accept that view. The short-term consequences of the Khmer Rouge Tribunal may therefore include increased tensions between the government and significant segments of the population, as well as heightened tensions in rural village society, where many people live in close proximity with those who persecuted their families during the Khmer Rouge era. Significant additional measures, above and beyond the Khmer Rouge Tribunal, will be required before Cambodians are able to fully lay to rest the terrible legacy of their tortured modern history.
Recommendations to the US Congress and Bush Administration
1. The United States Congress should immediately rescind restrictions on US financial support for the Khmer Rouge Tribunal. Abandoning the responsibility to support this court undermines US leadership on international justice issues, and compromises the ability of the US to influence the evolution of related international norms.
2. The United States government should refrain from nominating a judge to serve on the Khmer Rouge Tribunal, but could play a valuable role in supporting training for the Cambodian and international jurists who will sit in the Extraordinary Chambers. The complicated history of US relations with Cambodia would make the role of any American jurist problematic from the perspective of public perceptions.
3. The United States government should work closely with the United States Congress to devise a broad program of support for reconciliation efforts in Cambodia during the trials, and following the conclusion of the Khmer Rouge Tribunal. It is likely that in the short term, the Khmer Rouge trials will increase tensions within Cambodian society. The United States should be prepared to implement measures to help manage and reduce those tensions.
Recommendations to the Cambodian Government
1. Formally publish a list of candidates for senior judicial and administrative positions to be filled by Cambodian nationals on the Extraordinary Chambers, allowing adequate time for public comment by civil society. Transparent procedures of this nature are necessary in order to create the maximum degree of public confidence in the deliberations of the Extraordinary Chambers.
2. Urgently introduce legislation in the National Assembly authorizing the Extraordinary Chambers to adopt internal rules of evidence and rules of procedure modeled on previous internationalized tribunals. This is necessary to avoid confusion and delay during the proceedings of the Extraordinary Chambers, as well as to address numerous lacunae in existing Cambodian laws and procedures.
3. Urgently introduce legislation in the National Assembly to clarify the relationship between the Constitutional Council and the Extraordinary Chambers, as concerns issues of constitutional appeal. This is necessary, under Article 38 of Cambodia’s Constitution, to guarantee the rights of Cambodian citizens who may be prosecuted before the Extraordinary Chambers.
Recommendations to the Group of Interested States
1. Revisit and revise the December 2004 Khmer Rouge Tribunal staffing chart to restore the positions of international legal advisors originally envisaged for the Extraordinary Chambers. A “penny-wise and pound-foolish” approach to staffing will not help to ensure that the highest level of international standards obtains in the course of the proceedings.
2. Ensure the appointment of an independent international audit authority for the Office of Administration, reporting directly to the UN Secretary-General. This is necessary to maintain public confidence in the transparency and integrity of the Extraordinary Chambers.
3. Establish a formal international management committee, on the model of the Special Court for Sierra Leone, to monitor the execution of the agreement on the Khmer Rouge Tribunal by both the UN Secretariat and the Cambodian government. In order for this challenging procedure to succeed, difficulties that may arise in the course of implementation will have to be promptly identified, and timely corrective action will have to be taken.
Recommendations to the United Nations
1. Immediately appoint a successor to Karsten Herrel, the Coordinator for UN Assistance to the Khmer Rouge Tribunal, who resigned on September 27, 2004. The absence of a permanent incumbent in this crucial position has resulted in repeated delays and confusion, and a lack of leadership by the UN organization on the issue of the Khmer Rouge Tribunal.
2. As soon as practicable, publish a list of candidates for senior judicial and administrative positions to be filled by internationals on the Extraordinary Chambers, to allow adequate time for public comment by civil society. This is necessary to help ensure that the most qualified candidates are appointed to crucial international positions on the Extraordinary Chambers.
3. Ensure that appropriate measures are taken to permit a rapid seating of the Pre-trial Chamber, in order to hear in a timely fashion any disputes which may arise in the course of the investigation and indictment phases of the proceedings.