The $57 million, three-year Khmer Rouge Tribunal must have a year's funding in the
bank and firm pledges for the balance before it can proceed, says UN Secretary General
Koffi Annan.
In a progress report to the UN (dated October 12, but released November 15), Annan
said the tribunal could start when the actual contributions for the first year had
been received.
So far, the Australian government had pledged to fund A$3 million (about US$2.2 million)
for the full three years; the French and Japanese governments had made firm pledges
of $1 million and $3 million for the first year of the activities of the tribunal,
Annan said.
The US Senate has ruled that US government funds cannot be used to support the tribunal
in the current fiscal year ending next October.
The Cambodian Government's tribunal advisory member Dr Helen Jarvis told a public
forum in Phnom Penh November 17: "The US Senate Appropriations Committee decision
was a bit depressing. I hope that won't put off any other countries from contributing.
Most countries were waiting for Cambodia to complete its legal obligations, which
was done on October 27. Now there should be another mission from the UN to finalise
the budget and then an appeal for funds can be launched. A $60 million target is
not a great deal when compared with what is being spent on other similar tribunals
around the world, but here is an awfully long way to go."
The Cambodian Human Rights Action Committee (CHRAC) and 21 other signatories signed
a petition sent to the UN requesting that the United States join other countries
in contributing to the United Nations Trust Fund established to finance the tribunal.
They said it would be a tremendous misfortune if the Khmer Rouge tribunal failed
now because of a lack of financial commitment on the part of donors.
Koffi Annan said that financial burden assumed by member states in recent years for
the operation of international criminal tribunals had been significant. Donors were
expecting budgetary restraint when planning for new internationally assisted criminal
courts.
On the other hand, an underfunded operating budget would lead to delays in the start-up
of the Extraordinary Chambers and affect their ability to function in accordance
with international with international standards of justice, fairness and due to process
of law, Annan said.
The trials were expected to start 18 months after the entry into force of the agreement
and would last from nine months to a year and a half in each case.
There will be two levels of courts for the Khmer Rouge tribunal: the Trial Chamber
and the Supreme Court Chamber. At the Trial Chamber, there will be five judges comprising
three Cambodian and two international judges. At the Supreme Court Chamber, there
will be seven judges-four Cambodian judges and three international judges.
Annan said there were strong reasons for paying the international judges, co-prosecutor,
and co-investigating judge at UN officials salary rates. "The General Assembly
has so far not taken a decision in this matter. I find it necessary to stress the
importance of this point to maintain the credibility of the Extraordinary Chambers
and to ensure their independence and impartiality.
Jarvis, commenting at the public forum in answer to a question about how much Cambodian
judges would be paid, said: "The agreement does not say they will be paid equally
[with the international judges] so there may be some debate on this. This is something
for the donors to consider: do they think the judges who sit on the same bench should
be paid the same or not? In the Sierra Leone, Rwanda and former Yugoslavia tribunals
they are paid the same. The Cambodian Government promised to pay national salaries
for national staff which is their legal obligation and anything above that would
be up to the donors."
The judges will try to reach unanimous agreement on any decision made. If they cannot
all agree, then a decision requires what is called a 'super-majority'. In the trial
chamber four out of the five judges must vote for a conviction and in the supreme
court chamber five of the seven judges must vote for an appeal decision. Every decision
must therefore have the support of both Cambodian and international judges.
A number of international judges will be nominated by the UN Secretary-General. The
Cambodian Supreme Council of the Magistracy will then select five international judges
from that list and appoint them to the court. The supreme Council of the Magistracy
will also be responsible for appointing the seven Cambodian judges from among people
qualified to be Cambodian judges.
Annan's report said the credibility of the trials would depend to a large extent
on the integrity, impartiality and professional qualifications of judges, prosecutors
and other court personnel. Intensive training sessions were required, ranging from
questions of the law, to practices and techniques relating to complex criminal investigations,
prosecutions of crimes against humanity and general principles of international law.
The UNDP was currently training a group of 25-30 Cambodian judges, and a similar
course would be organised for defence counsel.
A World Bank report released on November 16, in a section on governance, said the
Cambodian judiciary was decimated under the Khmer Rouge. "The country's judges
either fled the country or were killed. From a legal profession of some 400-600 prior
to 1975, some 10 remained in the country five years later. The 1980s saw an effort
to rebuild the judicial system, drawing on teachers and others to fill the posts
of judges and prosecutors.
"But it remains largely devoid of legal talent. Only one in six of Cambodia's
117 judges has a law degree, and only one of the nine Supreme Court judges. Only
10 percent of public prosecutors has a law degree. Thus the judiciary inherited by
democratic Cambodia is ill-equipped to do its job, conditioned to being subservient
to the executive branch, poorly paid and allegedly corrupt."
