The ECCC must be beyond reproach in its form and function, or risk lethal comparisons to its 1979 predecessor.
A young woman rides her bicycle near the entrance to the Extraordinary Chambers of the Courts of Cambodia in Phnom Penh.
The atrocities committed in Cambodia between April 17, 1975, and January 6, 1979, by the Khmer Rouge Regime were the focus of a trial in August 1979, conducted by the People's Revolutionary Tribunal with support from Vietnam and other communist-bloc countries. Pol Pot and Ieng Sary were tried and sentenced to death in absentia. The judgement of that tribunal, however, was not internationally recognised as legitimate and was generally considered to be a show trial. The 1979 tribunal was not independent and utterly failed to respect the right of the accused to basic due process. The 1979 tribunal was conducted precisely to legitimise the political goals of the regime at that time.
The current Khmer Rouge tribunal, with the sexy name Extraordinary Chambers in the Courts of Cambodia (ECCC), is the result of more than 10 years of effort and difficult negotiations between the United Nations and the Cambodian government, and is designed to avoid the flaws of the 1979 tribunal. It is a partnership between the government of Cambodia and the United Nations that features a cumbersome structure designed in large part to ensure that the court meets basic international standards for fair trials.
The participation of international professionals at all levels of the court - including the judiciary - and a requirement that decisions of the chambers be achieved by "supermajority vote" (a voting process that ensures at least one international judge concur with the decision) flow from concerns about the political commitment of the government to an independent court that meets international standards.
How will the ECCC be different from the 1979 tribunal? It should be different in that international participation in the prosecution, judiciary and administration will bring wisdom acquired from the emerging international criminal justice movement rather than from communist leadership with no commitment to judicial independence or fair trials. At the ECCC, it is probably fair to say, further, that the current international participation is not to collude or to legitimise the political goals of the current elites. Their participation is to ensure that the international standards for fair trials are upheld and that political interference or other illegitimate actions are prevented or exposed, but it is probably too
early to give the international actors the credit as some of them may, indeed, be here just to collude or to legitimise.
A second basic difference between the 1979 tribunal and the ECCC should be demonstrated by the respect of the ECCC for the fair trial rights of the accused, but the ECCC is still struggling to gain credibility and to be a competent court amid corruption allegations within the administration of the Cambodian side. In addition, concerns about basic independence from political interference - evidenced by the disagreement among prosecutors about whether to investigate additional suspects - raises doubts about the hallmark of a fair trial: judicial independence. Furthermore, recent remarks by the government's spokesperson that more prosecutions are unnecessary feed concerns that the decision over who to prosecute is being made by politicians rather than by prosecutors.
Finally, unlike the 1979 trial, the ECCC proceedings shall be transparent from beginning to end in order to allow the Cambodian people to have a basic minimum understanding of the proceedings. The current policies of the court to protect almost completely the confidentiality of the investigation process and of proceedings to resolve differences between co-prosecutors or co-investigating judges harms the ECCC's claim to transparency.
The ECCC must reassess whether it is making sufficient efforts to distinguish its operations from the 1979 tribunal. The purpose of the ECCC is not merely punishment. It is also to tell more of the truth about the Khmer Rouge and to offer reconciliation with that truth. To succeed in fully distinguishing its work from that of the 1979 tribunal, the ECCC, its partners, donors and all those who act on its behalf must renew efforts to ensure that the court operates consistently according to international standards of justice, free of the taint of corruption or political interference. Furthermore, it must make much greater efforts to ensure that the people of Cambodia have a basic understanding of the proceedings.
Long Panhavuth is a program officer with the Cambodia Justice Initiative, a legal NGO monitoring the Khmer Rouge tribunal.