This week United Nations Secretary General Ban Ki-moon will visit Cambodia for two days during a four-nation Asian tour.
During his time in Phnom Penh the secretary general will visit the Extraordinary Chambers in the Courts of Cambodia, the result of a partnership between the UN and the Royal Government of Cambodia, and will no doubt be involved in talks to help respond to funding shortfalls that once again threaten the continuing viability of the tribunal.
One of the top priorities for the secretary general during his visit to Cambodia must be to restore confidence in an institution that has been dogged by allegations of corruption and political interference that have not only discouraged donors from committing funds to facilitate the important work of the tribunal, but have also undermined the fairness and credibility of the tribunal’s work.
Corruption allegations first surfaced at the ECCC in 2006, with Cambodian staff claiming that they were being forced to pay kickbacks to their superiors.
The United Nations Office of Internal Oversight Services launched an investigation into the allegations, the results of which were deemed confidential, leading to speculation and reports that the investigation had found merit in the allegations. Subsequent UN negotiations with the RGC resulted in the establishment of an Independent Counsellor position to investigate and report on corruption complaints.
On October 18, The Phnom Penh Post reported confirmation from the UN Office of Legal Affairs that the first report of the Independent Counsellor for the ECCC would also remain confidential and its findings would not be made public (“UN keeps corruption probe confidential,” October 18). The failure of the UN and RGC to deal transparently and definitively with corruption allegations has undermined confidence in the tribunal among both the Cambodian public and international donors.
In September, Cambodian judges in the ECCC’s Pre-trial Chamber used their three-judge majority to block investigations into political interference at the ECCC. Allegations of political interference arose after senior RGC officials ignored summonses issued by the international Co-Investigating Judge, who had sought their testimony to aid the investigation of detained senior Khmer Rouge leaders.
In October 2009, Prime Minister Hun Sen confirmed that he was reluctant to allow his senior colleagues to testify before the tribunal, claiming that it would affect the fairness of the investigation by guaranteeing that those detained in relation to Case 002 would be found guilty. In a dissenting judgment the Pre-trial Chamber’s two international judges found that there was “reason to believe that one or more members of the RGC may have knowingly and wilfully interfered with witnesses”.
Allegations of political interference have also caused uncertainty over the likelihood of further indictments beyond Case 002, complicating the development of a completion strategy for the tribunal.
The names of an additional five suspects, split into Cases 003 and 004, were forwarded to the Co-Investigating Judges in 2009. However, the Cambodian Co-Prosecutor, Cambodian Pre-Trial Judges and Cambodian Co-Investigating Judge have all attempted to prevent or delay progress in investigating the cases after public statements from RGC officials opposing investigation of further suspects.
The ECCC is an institution worth preserving – it has a vital role to play in providing justice to the victims of Khmer Rouge atrocities and, if it is able to operate according to international standards of fairness and transparency, it has the potential to provide a model for Cambodia’s struggling courts.
However, the continuing inability of the ECCC and its founders, the RGC and the UN, to deal adequately and transparently with allegations of corruption and political interference is discouraging donors from providing the funding required for the tribunal’s operations and placing its important work in jeopardy.
This week, the secretary general must work with the RGC to restore confidence amongst donors that the ECCC is capable of operating as an independent, transparent and fair judicial body, free from corruption and political interference, and capable of delivering long-sought justice for the grave breaches of international criminal law committed by the Khmer Rouge.
Ou Virak, President
Cambodian Centre for Human Rights