The Khmer Rouge tribunal moved a step closer to reality this month following the
visit by UN officials to thrash out details of how the Extraordinary Chambers are
to be run.
Chief of the UN team, Karsten Herrel described the discussions on December 8-12 as
an "assessment mission" and said much had been achieved.
Negotiators agreed upon "a common concept of operations" such as the process
of appointing judges and prosecutors, a rough timetable and the integration of international
and Cambodian staff.
The trial court will consist of three Cambodian judges and two international judges.
An appeal court will be made up of four Cambodian judges and three international
judges.
But critics pointed out that unresolved issues such as funding and the involvement
of Cambodian judiciary, with a reputation for corruption, threaten the trials' success.
Many believe that some Cambodian judges are simply not up to the task. That point
was acknowledged by UN Secretary General Kofi Annan in his March report to the General
Assembly.
"There still remains some doubt in some quarters regarding the credibility of
the Extraordinary Chambers given the precarious state of the judiciary in Cambodia,"
he said. "It is, however, the hope of the Secretary-General that the government,
in the implementation of the agreement, would carry out fully the obligations that
it would assume."
NGO Human Rights Watch also agreed that a judiciary appointed by the UN was more
likely to be objective. But for now, a spokesman said, the organization is adopting
a "wait and see" attitude.
"It will be very revealing which judges will be chosen, both Cambodian and internationally,"
said the spokesman. "That will be the key issue...We will push for it to be
as good as it can be given the huge limitations of the task."
But Helen Jarvis, an advisor with the Council of Ministers, believes that a strong
Cambodian presence on the tribunal is
essential.
"I think it would not be appropriate to hold the trials without Cambodia. I
think that justice should be dispensed by the people who have some relationship to
the context of the crimes that were committed."
Jarvis pointed out that legal mechanisms such as the need for a super-majority, where
an international judge must agree to a conviction, and the ability of the UN to pull
out if they think the process is failing will help ensure a just result.
"The Cambodian government has long recognized the weakness of the judiciary
and it's precisely for that reason that they have invited international assistance
to help meet internationally accepted standards," she said.
"There have been checks and balances built in to the legislation that should
help to get a satisfactory outcome."
She believes the assumption that the international staff on the tribunal will be
perfect and the Cambodians flawed is also unfair. There have been accusations of
mismanagement and nepotism in the UN trials for the Rwandan genocide. Problems with
that trial, including a growing $1 billion price tag, have also raised concerns about
how much the Khmer Rouge tribunal might cost.
A budget is not finalized, but Cambodia has committed to paying about half of the
estimated $40 million needed to fund the trials. Secretary of State at the Ministry
of Justice, Ang Vong Wattana, offered one possible source for Cambodia's share: other
countries.
Wattana announced on December 12 that Cambodia would seek assistance from bilateral
donors to cover their share of the cost.
"The budget will be a heavy burden for the Royal Government of Cambodia,"
he said. "We will try as much as we can to contribute to the extraordinary chambers...Frankly
speaking, we are short of money."
Raising Cambodia's share presents a challenge. Besides competing for funds with other
international war crimes tribunals, donor countries are effectively being asked to
contribute twice - both by the UN and Cambodia.
"Frankly speaking, I'm a little bit skeptical about the tribunal. I don't think
that this process will come to a positive result quickly."
The question of whether such hefty demands for assistance will cut into Cambodia's
international aid budget remains unclear.
Whether the tribunal can even manage to stick to such a conservative budget has been
widely questioned. The cost of the trials in Rwanda over the last two years was $178
million.
But Jarvis said that speculation about funding is premature.
"I don't think it's sensible to denounce it yet. That was a preliminary budget
for discussion - it's just an attempt to work it through."
She said the costs would be high because of UN involvement. The salaries for UN judges
and officials and ancillary costs such as per-diems and medical insurance will make
the tribunal an expensive exercise.
Whether Cambodian judges will be paid the same salaries remains to be decided.
Kek Galabru, president of human rights organization LICADHO, said the pay disparity
between international and national judges, as well as the skills gap, could make
it difficult for the parties to work together.
"Frankly speaking, I'm a little bit skeptical about the tribunal. I don't think
that this process will come to a positive result quickly. In the mean time, many
of the leaders of the Khmer Rouge will die. It's hopeless, I think."
But a spokesperson for the UN Office of the High Commissioner for Human Rights, Saku
Akmeemana, said the tribunal is an important process for Cambodia.
"These days, countries emerging from a period of protracted conflict must be
seen to be dealing with their past, with serious human rights violations."
She said it was hoped that the processes of the tribunal will have a ripple effect
on other legal systems and help discourage impunity.
"The irony of modern day impunity will be clearer against the backdrop of holding
accountable those accused of committing crimes a quarter of a decade ago," she
said.
