Phnom Penh, Cambodia – When the Cambodian government and the UN agreed in 2003 to create a tribunal to try senior surviving Khmer Rouge leaders, the initiative was also touted as a chance to strike a blow against the impunity and corruption rampant in the domestic court system.
The Extraordinary Chambers in the Courts of Cambodia (ECCC), which has spent $200m so far, is funded largely by international donors who are told that their money is purchasing not only a semblance of justice, but also lasting improvements in the Cambodian judiciary.
But over a decade later and nearly seven years after the ECCC began full-time operations, rights groups and observers say that Cambodia’s domestic courts remain just as corrupt. Instead of serving as an exemplary “model court”, the ECCC itself has become infected by some of the same problems that plague the Cambodian justice system.
Michael Karnavas, a defence attorney, has had a front-row seat to judicial reform in Cambodia. He has been travelling to Phnom Penh since the mid-1990s to train young lawyers here. Later, in 2007, he started working at the ECCC as the defence lawyer for the former Khmer Rouge foreign minister.
Karnavas says that although the ECCC has helped sharpen the legal skills of many individual judges and lawyers, it hasn’t made a dent in the more systemic problems of corruption and a lack of judicial independence.
“The ECCC was the latest, and perhaps last, opportunity to improve the Cambodian judicial system, by being a so-called ‘model court’,” he says. “In my opinion, the ECCC has not lived up to its potential…Truth be told, nothing can be adopted and implemented from the ECCC in a uniform and consistent manner by the courts in Cambodia without political will from the very top.”
Karnavas added that although the ECCC has produced high-quality jurisprudence on a number of issues applicable to national-level courts, such as fair trial rights, the Cambodian judiciary has not yet made efforts in applying these new laws and procedures.
A strong oversight structure was not created to take the lead in planning and implementing legacy activities.
The tribunal never followed through on its pledge to create a coordinating “legacy” programme through which it can transfer skills and knowledge to local courts, leaving NGOs and the UN scrambling to pick up the pieces.
Lars Olsen, an ECCC spokesman, said last week that legacy activities at the court have been discontinued due to budgetary constraints. These projects include a much-publicised “Virtual Tribunal”, a multimedia educational tool that would have archived the tribunal’s rulings and debates.
“A clear and detailed legacy strategy was not developed at the outset, or, if it was, little information on it was made available,” says Rupert Abbott, Amnesty International’s researcher on Cambodia. “A strong oversight structure was not created to take the lead in planning and implementing legacy activities.”
Scandals and schisms
The ECCC’s ability to serve as a model court is also undermined by its own struggles with corruption and government interference. The tribunal was founded upon an innovative “hybrid” model, featuring both Cambodian and international jurists, but it has turned out to be more Cambodian than its planners dreamed.
In 2007 and 2008, it was rocked by a kickback scandal in which Cambodian staff complained that they were being forced to bribe their superiors to keep their jobs, a common practice here. The UN froze funding to the court and demanded a solution, but the Cambodian government insisted that the “independent counsellor” appointed to monitor the allegations should be its own auditor general, and rumours of kickbacks persist.
Since 2009, the court has been riven by deep schisms over whether to prosecute five suspects. Cambodian Prime Minister Hun Sen has spoken out against the prosecutions, publicly threatening that civil war will erupt if they proceed. In turn, Cambodian prosecutors and judges in all chambers of the court have resolutely opposed the cases and attempted to block them. Two investigating judges and a number of international court staff resigned over the deadlock, after months of sniping and infighting.
Abbott said that problems such as these “send a negative message to the national courts”, one that could risk undermining the powerful statement against impunity made by the court’s first two cases, which tried Duch, the commandant of S-21 prison, where over 12,000 people died, as well as Pol Pot’s chief lieutenant, Nuon Chea, and the Khmer Rouge head of state, Khieu Samphan.
Meanwhile, just as it was in 2003, the Cambodian court system today is widely seen as wracked by corruption and in thrall to the government. With few exceptions, judges are aligned with the ruling Cambodian People’s Party (CPP) and deliver decisions that please party bosses. A number of human rights defenders have been summoned to court and even jailed in the past two years. Most recently in early January, 21 garment workers and union activists were beaten, summarily jailed, and denied bail after demanding a higher minimum wage.
Back to business as usual?
Nil Nonn, the president of the ECCC’s Trial Chamber, is the nominal head of the Siem Reap Provincial Court in addition to his duties at the tribunal. As a judge in the western province of Battambang in 2000, he told an American news crew that he accepted bribes – after verdicts were issued – to supplement his monthly salary of just $30. He was also filmed hearing cases without listening to evidence. Now he says his time at the ECCC has helped him become a better judge.
I suspect that once the ECCC comes to an end, the skills and knowledge gained will rapidly dissipate as these folks head back to their old jobs.
“There are a lot of great experiences that working here provides, especially in terms of administration, management, human rights protection, full participation from all parties involved, and making thorough arguments,” he said. “Such good things will have a good influence on national courts.”
Nonn admitted that there are still some “loopholes” in the domestic judicial system, but declined to be more specific. He also noted that the embattled Hun Sen government, which has been facing street protests over the results of disputed elections in July, is “really serious about in-depth judicial reform” and will make it a priority during its next five-year term.
However, Karnavas is not sure that judges such as Nonn will be able to translate their newly acquired skills to the domestic courts.
“No doubt some national judges, prosecutors, lawyers and court staff have learned quite a bit from their ECCC work experience,” Karnavas said. “This is very positive. But I suspect that once the ECCC comes to an end, the skills and knowledge gained will rapidly dissipate as these folks head back to their old jobs.”
The debate over the court’s legacy has far-reaching effects. Reach Seima, a 32-year-old rice farmer in rural Kampong Chhnang province, is part of a group of poor rural families that have been locked for over seven years in a land dispute with the wife of Cambodia’s powerful mines minister. The villagers have been hauled up before the provincial court multiple times on charges that rights monitors say are spurious, and some have even been jailed.
Seima said he had been following the progress of the ECCC with interest, but he was not optimistic about its ability to lead by example.
“I follow the Khmer Rouge court, so I know that it thoroughly conducts field investigations, listens to the accused and the victims, and most importantly, the victims are allowed to attend the trial fairly,” he said.
“But our national court system is just getting worse. The Kampong Chhnang court has clearly not been independent from the past up until now, since villagers’ representatives in the land dispute have been charged with criminal offences, arrested and jailed. The company has never been charged once by the court.”
Seima added, “Before and after the creation of the court for the prosecution of Khmer Rouge leaders, I’ve noticed that the national court has never changed.”