The Phnom Penh Post

In the wake of Duch’s verdict, commentary has been pouring in about the appropriateness of the sentence and future of the tribunal itself. I believe much of the outrage surrounding the sentence underscores conflicting expectations regarding the tribunal’s mission: While it has a relatively limited prosecutorial mandate, the court has been tasked, in the minds of many observers and victims, with helping complete a more truthful narrative of the Khmer Rouge period and with fostering national reconciliation. Yet these are objectives that no court can truly attain given the gravity of the crimes committed.

As scholar Peter Maguire wrote in Wednesday’s International Herald Tribune, “the biggest problem facing the ECCC is living up to its own hype. Claims that such trials can lead to healing, closure, truth and reconciliation are speculative at best. How does one measure ‘healing, closure and reconciliation?’ While most Cambodians would like to see the Khmer Rouge leaders punished, they’ve grown used to seeing common thieves and their government’s political opponents suffer far worse punishment than that meted out to Duch.”

Yet, Duch is only one person – a relatively low-ranking Khmer Rouge cadre at that – and nothing done to him can make up for the thousands of lives lost. As television news director Huy Vannak told the New York Times, “even if we chop him up into two million pieces it will not bring our family members back.”

Today’s historic verdict for Kaing Guek Eav, also known as "Comrade Duch," will no doubt generate debate. A reduced sentence of 19 years, for a man responsible for the deaths of thousands of people, will anger many – especially those who wanted him to face the death penalty (which is illegal in Cambodia).

At the same time, it is true that Duch has cooperated with the court, probably does not present a threat to society if ever released and most likely, given his age, will end up serving a life sentence anyway. Moreover, as the Cambodian Center for Human Rights pointed out in reaction to the verdict, it was not unreasonable of the court to take into account the years Duch was illegally detained by the Cambodian military.

“The Universal Declaration of Human Rights states that ‘all members of the human family’ have ‘equal and unalienable rights.’ This necessarily includes senior members of the Khmer Rouge, who are viewed by many as indefensible,” according to a CCHR press release. “It is for this reason that the CCHR welcomes the reduction in Duch’s sentence as the result of the  ‘violation [of his rights] occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007.’”

Cambodian-American academic Sophal Ear, who lost his father and brother to the Khmer Rouge, took to the pages of the International Herald-Tribune last week to attack the tribunal. He lists a number of grievances against the court, including high costs, procedural delays, reforms on civil party participation.

If, after four years and $13 million in contributions to the Cambodian government from Japan, the Europe Commission and others, and $76 million in contributions to the United Nations by more than 21 donors, one guilty verdict is all the tribunal has to show, survivors of the Khmer Rouge may just as well consider justice denied.

The cost of the court is obviously a sensitive issue, given that there are so many other sectors of Cambodian society that could benefit from that level of foreign aid. I spoke with Caitlin Reiger of the International Center for Transitional Justice recently, however, and she argued that much of the funding that the tribunal receives is earmarked specifically for these sorts of proceedings, and therefore wouldn't necessarily be available for other purposes in Cambodia.

Ultimately, Ear questions whether high-minded aspirations for the tribunal were ever realistic in Cambodia's current political context, calling the institution "an international and domestic farce", denouement to "a failed 1993 U.N. exercise in democracy that led inexorably toward authoritarianism". 

Last week, I had the opportunity to hear Clint Williamson, U.S. Ambassador-at-Large for war crimes issues, speak to a crowd of Rutgers students and professors about international justice efforts in a number of different countries.  While it wasn't the sole focus of his presentation, Williamson did discuss the Khmer Rouge tribunal, and I was pleased with what he had to say.

For starters, he thinks corruption problems at the court are currently "under control" and pointed out that a court administrator had been removed from his post due to these concerns. (By this, I can only assume he was referring to Sean Visoth, former administration head, who went on extended sick leave and never returned.)

He went on to describe the tribunal as having "more of an impact on the population than any court that has been created." Williamson said that 15,000 Cambodians thusfar have attended proceedings and the ECCC has introduced a whole new generation of Cambodians to their history. While handing out Khmer Rouge textbooks on a recent trip, he said, "the kids couldn't take their noses out of the books."

During his first press conference as the Khmer Rouge tribunal's independent counsellor, Uth Chhorn said Wednesday that he would forward, not resolve, well-founded complaints brought to him by tribunal staffers. 

Describing how he would approach his new role, he said he was "to be informed of anything that happens in the court". He said he would collect information about all complaints and forward it to Deputy Prime Minister Sok An and Peter Taksoe-Jensen, the UN’s assistant secretary general for legal affairs.

The press release announcing the appointment said Uth Chhorn would be “empowered to address” corruption complaints.

The announcement Wednesday that the Cambodian government and the UN had agreed to appoint Uth Chhorn, the current chairman of the National Audit Authority, to fill the newly created role of "independent counsellor" prompted some questions from court parties and observers, in particular whether Uth Chhorn would be granted enough authority to resolve the corruption complaints he will be tasked with fielding and whether Cambodian staffers would be comfortable bringing such complaints to him.

At a press conference on Wednesday that was light on details, Council of Ministers spokesman Phay Siphan said he did not know how Uth Chhorn might go about resolving corruption complaints. He also said he did not know when Uth Chhorn would begin work in the new role.

According to a statement distributed at the press conference and dated Tuesday, the agreement -- reached by Deputy Prime Minister Sok An and Peter Taksoe-Jensen, UN assistant secretary-general for legal affairs -- followed "detailed consultations" with donors. The UN has frozen funds to the Cambodian side of the court in response to allegations of a kickback scheme at the tribunal.