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Logo of Phnom Penh Post newspaper Phnom Penh Post - The legacy of the Khmer Rouge Trials needs to be planned

The legacy of the Khmer Rouge Trials needs to be planned

The Extraordinary Chambers in the Courts of Cambodia (ECCC) is finally beginning

operations, after years of uncertainty. The legacy of the ECCC needs to be planned

now, and must be centered on making the ECCC accessible to and meaningful for Cambodians.

Although ECCC staff recognize the importance of leaving a positive legacy, they are

now very busy with details of the start-up phase, and their skeleton staff must prioritize

other more urgent tasks. There is not yet a strategic plan that considers issues

related to legacy. A clear exit strategy which is planned now, could help ensure

that positive legacy is embedded into the structure of the ECCC.

A recent visit of Robin Vincent, the former Registrar (Director of Administration)

of the Special Courts for Sierra Leone emphasized the need to strive for a positive

legacy as he said repeatedly: "the ECCC should belong to the people of Cambodia

- and that thus the ECCC should leave something behind for the children of Cambodia

-a footprint in the sand." He reinforced the need to establish criteria for

evaluation (or benchmarks) as the ECCC proceeds - and that these should be based

on the needs of the Cambodian people.

There are several ways in which the ECCC could leave a positive legacy:

Promoting the Rule of Law and Decreasing Impunity - As mentioned in an Open Society

Justice Initiative letter to the Group of Interested States of August 2005, the EC

"could spark demand for - and demonstrate the possibility of - needed reform

of Cambodia's legal institutions and practices, and other accountability mechanisms".

In various surveys, Cambodians explained they felt it was important to prosecute

past violations of human rights, so that current leaders would not act with impunity.

However, more study is needed to see how these issues of rule and law and impunity

can best be addressed - an ECCC "Legacy Officer" would spearhead such study

and planning.

Court facilities

Physical - Physical improvement of the ECCC court facilities, including design for

security measures, sensitive treatment of victims and witnesses, detention and forensic

facilities, evidence rooms, and interpretation, translation and hopefully transcription,

and other general issues such as efficiency and confidentiality. Coordination with

the other model court system set up in various Cambodians courts with the assistance

of the (Australian) Cambodian Criminal Justice Assistance Project and the Council

on Legal and Judicial Reform is very important.

Technical - Cambodian judges and other court personnel - prosecutors, investigators,

clerks, mental health workers, interpreters and translators administrative and financial

staff, etc, in principle, will learn new skills from their international counterparts.

The internationals can also learn from Cambodians. The mentoring process should be

planned in advance and included in job descriptions, neutral staff assessments and

continuing education plans to increase the possibility that skills and practices

will actually be improved.

Adequate funds need to be provided for training, including translation and interpretation

and other services such as printing and training costs. These costs are not included

within the ECCC budget and donors should already think about funding such requests.

However, a strong cautionary note must be added - the Cambodian courts have already

been the subject of much training and capacity building with little effect. Ways

need to be found to optimize skills gained by also improving the larger rule of law,

in particular finding ways to reduce the influence of the executive on the judiciary,

and also to look at ways to deal with corruption.

Institutional - The hopes of many Cambodians to move towards a rule of law, with

fair, independent and just functioning of the courts, the Supreme Council of the

Magistracy, the Constitutional Council, the Bar Association and even the security

(and investigation) services, must be specifically addressed in the planning stages

of the ECCC.

As job descriptions, organizational diagrams, codes of conducts, and swearing-in

oaths are developed for the ECCC, they can help improve other Cambodian institutions.

Staff recruitment could also serve as a model if done under international standards.

Databases and court management systems can serve as models for Cambodian courts.

Other indirect institutional development can occur through positive effects on media,

mental health services, translation and interpretation services and other areas.

As new procedures are developed for the ECCC, such as rules of procedure and evidence,

detention standards, they can be incorporated into new laws and procedures.

Knowing 'truth'

Reconciliation - Links between truth, justice and reconciliation are not clear in

other international or hybrid court experiences, nor agreed upon by experts. However

in various surveys the majority of Cambodians have expressed their desire to increase

their knowledge of the "truth" to know "why Cambodians killed Cambodians."

The quest for the truth about the past, as well as acknowledgment of the past crimes

is clearly part of reconciliation. The ECCC, if successful, can help develop a clearer

view of history, and a broader view of the "truth."

But how can the legacy of the ECCC be optimized? First of all, the Cambodian government,

the ECCC, and its international backers must make a firm commitment at these early

stages. The NGOs working on the ECCC as well as on related issues such as legal development,

outreach, mental health and others, should develop plans to improve the legacy of

their work around the ECCC. Central to leaving a positive legacy is an early and

effective outreach program to reduce false expectations, to share information and

to find out the concerns and issues important to Cambodians. All those involved must

work together, coordinate and keep the primary beneficiaries in mind - the Cambodian

people.

Although the ECCC is now well on its way, and appears on track, it could still get

derailed. In such a case, a positive legacy can still occur, if the court and others

are able to learn as the court has progressed. In order to optimize legacy even in

this scenario, time and budgets should be allowed to appoint a Legacy Officer, or

to assign the duties of planning for legacy with a particular staff person, and for

all staff to write frequent progress reports, including legacy issues and lessons

learned, even if the ECCC were to end.

Laura McGrew

* Laura McGrew was the Project Coordinator for the Open Society Justice Initiative's

Project providing Support and Monitoring of the ECCC from 2004-2005.

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