Although she has been a relatively understated figure at the court, Cambodian Co-Prosecutor Chea Leang is attracting a good deal of attention at the moment. Her stand against additional investigations at the ECCC puts her at odds not only with her foreign counterpart, Robert Petit, but also with court watchers who suspect her decision is not wholly independent.
"The nature of Cambodian Co-Prosecutor Chea Leang's opposition to investigation of additional suspects beyond the five already charged has raised concern that she may not be free to act independently in determining appropriate targets for prosecution," tribunal monitor the Open Society Justice Initiative writes in its most recent report. "Her objections seemingly acknowledge the sufficiency of the evidence and legal basis for proceeding with the investigations, yet she refused to agree for reasons which are not factually supported and appear as pretext."
In its February 2009 report, the watchdog group highlights funding shortfalls, unresolved corruption allegations and the disagreement between prosecutors as to whether the court should pursue additional suspects. Petit filed an official "Statement of Disagreement" in early December and Chea issued a public response saying she feared additional investigations would jeopardize Cambodia's stability.
While I do not want to underplay the importance of resolving corruption allegations at the tribunal, it is this issue surrounding additional suspects that strikes me as the most critical measure of the court's legitimacy.
As OSJI points out, the funding problem will most likely be addressed when the corruption allegations and prosecution dispute are resolved. Although the court must develop stronger anti-corruption mechanisms, anyone who has spent a significant amount of time in Cambodia knows how entrenched corruption is in all institutions here. If staffers do indeed have to pay kickbacks to higher ups, the practice needs to stop. But does it undermine the court's judicial integrity in the way a politically manipulated roster of defendants would?
I don't think so.
Even when negotiations for the court were underway, parties worked to create potential safeguards against political interference. The dispute resolution process that was finally adopted was meant to address concerns that prosecutors might disagree either based on the "merits of any particular individual being charged" or "because one of the co-prosecutors appears politically influenced and the other seeks the ruling of the Pre-Trial Chamber to ensure the integrity of the ECCC," according to OSJI.
"'Obviously, during the negotiations, concerns about political influence were dealt with delicately, but everyone knew we were building a dispute settlement mechanism to overcome either merits or political disagreement,'" David Scheffer, former US Ambassador for War Crimes and a key negotiator, told OSJI.
The Justice Initiative report continues: "The reasons put forth by the Cambodian prosecutor justifying her decision not to proceed are not related to the merits of the evidence and so suggest that the political motivations that worried the drafters of the Agreement are the basis for her decision."
Now, the decision over additional prosecutions rests with the Pre-Trial Chamber. How the chamber rules will, most likely, be a defining moment for the court. For some, it will be the ultimate test of the tribunal's judicial independence -- and an indicator of whether the court is to be taken seriously.
Despite all the hype leading up to the trial of "Comrade Duch," as scholar Peter Maguire pointed out in a recent commentary, "Duch is a garden variety war criminal who could be quickly and easily convicted by a basic military tribunal for his well documented violations of basic human rights norms."
It is how the complicated cases of more senior leaders are handled that will make or break the tribunal. And "some speculate that the Cambodian government is serving up this easily convicted thug as a sacrificial lamb in the hopes that the other over-80 defendants won't live long enough to see the inside of the courtroom," Maguire continues.
While he's not convinced of the practicality of pursuing additional defendants, Maguire concedes that the decision handed down by the Pre-Trial Chamber will be a crucial test of the court's integrity:
"It did not take the Cambodian co-prosecutor Chea Leang (niece of Deputy Prime Minister Sok An) long to reject the move on both practical and political grounds. If nothing else, the UN's attempt to broaden this criminal inquiry will serve both as a test of the mixed tribunal's legitimacy and its ability to function as a court.
"For many years, Cambodian Prime Minister Hun Sen was firmly in control of these proceedings, but by opening further criminal investigations, the UN has challenged his control. What remains to be seen is whether or not the Cambodian prime minister has the political will to try the Khmer Rouge political leaders."
* Pictured: Co-Prosecutors Chea Leang and Robert Petit. Photo courtesy of AFP.