JPRI Working Paper No. 117 (September 2010)
Transitional Justice in Cambodia's Internationalized Court
by John D. Ciorciari
In 2006—nearly thirty years after the demise of the Pol Pot regime—a UN-backed tribunal was established to adjudicate atrocities committed in Cambodia during the period of Khmer Rouge rule. The tribunal's official name is the “Extraordinary Chambers in the Courts of Cambodia” (ECCC). It is a hybrid judicial body that fuses Cambodian and international laws, procedures, and personnel. In July 2010, the ECCC issued its first conviction, ruling on the case of Comrade Duch, who once headed the infamous torture and interrogation facility at Tuol Sleng. The other four charged persons in custody—all cabinet-level officials of the Pol Pot regime—are set to stand trial in 2011. To some observers, the trials are key elements in fighting the impunity that has long plagued Cambodian society. To others, the trials border on farce and offer too little, too late for the victims of Khmer Rouge terror.
Progress toward accountability has not been smooth or easy in Cambodia. As in many conflict-torn societies, legal challenges have existed, but the primary impediments have been political. Transitional justice is never only about providing legal justice; it also reflects the efforts of its sponsors to bring about or manage a desired political or societal transition. The Cambodian government and key international actors have long harbored a degree of mutual mistrust and held different visions for Cambodia's political future. Those tensions stalled accountability efforts for many years and profoundly affected the eventual process for putting Khmer Rouge suspects on trial. This paper briefly examines how political contestation affected the negotiations for the ECCC, the tribunal's basic design, and its administrative and judicial performance to date.
The Political Context for Khmer Rouge Accountability
The ECCC cannot be properly understood without reference to Cambodia's history at the crossroads of international conflict. The Khmer Rouge movement emerged in the 1960s as an anti-monarchical communist guerilla force with Vietnamese and Chinese support. It then hardened and expanded its ranks during a bloody civil war against the U.S.-backed military regime of Lon Nol, which took power in a 1970 coup against Prince Norodom Sihanouk. The Khmer Rouge took power as the United States withdrew support for its conservative allies in Indochina in the spring of 1975. Pol Pot and his colleagues renamed their country Democratic Kampuchea (DK) and embarked on a program to rid the country of malign foreign influence and return to “Year Zero,” but their xenophobia and revolutionary zeal were soon tempered by practical needs for support. They turned to China, which furnished aid to the DK regime in order to balance Vietnamese influence in Indochina and win a needed ally against the emerging Soviet-Vietnamese axis.
In late 1978, Khmer Rouge border provocations prompted the Vietnamese army to invade and occupy the country with Cambodian resistance fighters, who led the new government. Fearing Vietnamese domination of mainland Southeast Asia and eager to bleed a Soviet ally—China, the Association of Southeast Asian Nations (ASEAN), and the Western powers (most notably, the United States) furnished varying degrees of support to the patchwork coalition of monarchists, right-wing groups of Lon Nol vintage, and Khmer Rouge guerillas who had assembled near the Thai-Cambodian border to fight the Vietnamese-backed regime. Prince Sihanouk occupied Cambodia's seat in the United Nations, while Khmer Rouge forces did most of the fighting. A brief 1979 trial of Pol Pot and Ieng Sary in absentia was dismissed as a “show trial” in the West, and modest attempts by private actors to promote accountability were buried beneath Cold War political imperatives.
As the Cold War thawed by the 1990s, the United Nations worked with Cambodia's various factions, including the Khmer Rouge, to devise the Paris Peace Accords. Those accords—which did not focus on accountability—led to an 18-month UN administration of the country and UN-sponsored elections in 1993. Sihanouk's son Norodom Ranariddh won nearly half of the votes. Hun Sen, who had been prime minister during the latter stages of Vietnamese occupation, won a slightly smaller number. The two rivals agreed to serve as co-prime ministers but jockeyed for power. Among other things, each leader sought to draw Khmer Rouge defectors onto his side during the “national reconciliation” process of trading arms for implicit or explicit amnesties. Hun Sen gained an edge by brokering a major defection deal with the senior Khmer Rouge leader Ieng Sary in 1996.
As the Khmer Rouge movement began to fall apart, tensions between Hun Sen and Norodom Ranariddh came to a head. Accusing Ranariddh of dealing with Khmer Rouge villains, Hun Sen and his Cambodian People's Party (CPP) executed a veritable coup in July 1997 to oust the Prince. Hun Sen gained a decisive political upper hand, but the move exacerbated his acrimonious relations with the West. It was in this political context that the Cambodian government and United Nations began to negotiate a tribunal for crimes of the DK era.
UN officials preferred a fully international forum like the international criminal tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively). They argued that the Hun Sen-led government lacked both the capacity and integrity to hold credible trials. They also feared that a trial on Hun Sen's terms would further legitimize a government that many international observers viewed as authoritarian, corrupt, and abusive. Some in the U.S. Congress even advocated putting Hun Sen on trial rather than focusing on just “a handful of geriatric Khmer Rouge.”
Cambodian officials countered that the West's own credibility was in doubt. American bombers in the early 1970s had helped fuel the Khmer Rouge movement, and international support during the 1980s had kept the Khmer Rouge insurgency alive. The Cambodian government insisted on primary ownership of the trials, arguing that international interest in justice came only after domestic actors had taken the painful measures needed to bring the Khmer Rouge insurgency to heel. China supported its erstwhile adversary, Hun Sen, by threatening to veto any Security Council resolution that would unduly infringe on Cambodian sovereignty.
Difficult negotiations took place between 1999 and 2003, with the United States sometimes intervening to break impasses between UN and Cambodian officials and steer toward the model of a hybrid tribunal. Eventually, the two sides hammered out an agreement on the basic terms for trials, which were formalized in a 2004 Cambodian law that established the Extraordinary Chambers. Nevertheless, the political tensions that plagued the negotiations were reflected in the tribunal's design and have affected its operations in important ways.
Politics and the Structuring of the Tribunal
The ECCC has two salient features that flow from the need to reconcile national and international political interests. First, the tribunal is narrow in scope, focusing on a modest number of Khmer Rouge suspects for crimes committed in Cambodia during a particular period of time. Second, unlike the hybrid tribunals created to adjudicate crimes in Timor-Leste, Sierra Leone, Kosovo, and Lebanon, the ECCC has a majority of national judges and gives a greater share of key administrative posts to national officials.
A Narrow Jurisdictional Scope
Political interests have clearly impacted the tribunal's jurisdictional scope. Its subject-matter jurisdiction, which refers to the types of crimes it can adjudicate, was relatively uncontroversial. It is empowered to hear cases relating to three well-known international crimes (genocide, war crimes, and crimes against humanity), three domestic offenses (torture, homicide, and religious persecution), and violations of two lesser-known international treaties protecting cultural property and diplomatic personnel. The mixture of Cambodian and international laws and procedures—both from the common and civil law traditions—has generated some confusion at the ECCC, but it was not the subject of primarily political contestation.
The court's temporal jurisdiction was somewhat more sensitive given the abundance of unclean hands in Cambodia's history. The Cambodian government and United Nations agreed on a narrow frame of 17 April 1975 through 6 January 1979, precisely corresponding to the period of Khmer Rouge rule. Western powers, and particularly the United States, did not want to expand the court's reach to include crimes of the Lon Nol era, and neither side was eager to create a court that would peer into offenses of the 1980s. Focusing on the Pol Pot years arguably can be justified given the scale of Khmer Rouge atrocities, but it also reflects political constraints. The same political considerations help to explain why proposals for a truth commission in Cambodia were cast aside in favor of a more limited criminal process.
The most controversial aspect of the tribunal's scope has related to the area of personal jurisdiction. The 2004 ECCC Law left the issue only partly resolved, stating that the tribunal would be empowered to hear cases against “senior leaders” and others deemed “most responsible” for the atrocities of the Pol Pot era. A team of UN experts in the late 1990s had estimated that a universe of approximately 20 to 30 defendants would be appropriate given the scale of the abuses, but the Cambodian government insisted on a smaller number, claiming that responsibility for Khmer Rouge terror lay at the top and that a wider net of prosecutions would endanger national stability.
Beneath these debates was a clear clash of political interests. Hun Sen and other senior members of the Cambodian People's Party (CPP) were themselves low-level members of the Khmer Rouge movement before defecting to Vietnam and returning to overthrow Pol Pot. In addition, the CPP made deals with various Khmer Rouge rebels in the 1990s as part of its efforts to defang the insurgency, sometimes rewarding defectors with government or military posts. CPP leaders have been fearful of any process that could subject them to inquiry or draw attention to ugly compromises of the past.
Given the strong mutual mistrust between the United Nations and Cambodian government, the latter has justifiably been concerned that international actors would seek to use the ECCC process to delegitimize the CPP. Indeed, some international officials and many human rights groups have insisted that trying only a narrow range of defendants not only inhibits efforts to arrive at true justice, but also serves to support authoritarianism and corruption on the part of the Cambodian regime. Thus far, the Cambodian government has won. Five defendants have been charged, and one has been convicted. However, the dispute continues to resurface, as discussed later in this paper.
The Balance of Administrative and Judicial Power
Another key feature of the ECCC is the preponderant role played by Cambodians. In other hybrid courts, UN judges and personnel have constituted the majority on the bench and generally have held the most sensitive administrative positions. In contrast, the Cambodian government was unwilling to concede an upper hand to the United Nations. Whereas the governments of Sierra Leone, Kosovo or Timor-Leste negotiated terms of tribunals at a time when they were still very dependent on Western aid and peacekeeping, Cambodia's government had a reasonably strong bargaining position. UN negotiators were displeased with the prospect of a minority share, but the U.S. government and other key UN members emphasized the importance of continuing the judicial process and drove through a deal.
The result is a tribunal with pre-trial and trial chambers of five judges apiece (three Cambodian and two international) and an appeals chamber of seven judges (four Cambodian and three international). In each case, decisions must be made by a super-majority, which gives the international judges a collective veto. Prosecutorial duties are split between Cambodian and international co-prosecutors, who work alongside co-investigating judges to identify suspect, conduct investigations, and issue indictments.
Administratively, a Cambodian heads the Office of Administration with an international deputy, and the court is roughly divided into domestic and international “sides.” This differs from most other internationalized courts, which are managed by internationally appointed registrars with an integrated administrative apparatus. Cambodians also lead several other key administrative offices, including the Victims' Unit, Office of Public Affairs, and court management. Budgetary and personnel oversight are split, and UN staff lead the Defense Support Unit and other logistical and technical operations. Cambodian leadership of most public outreach functions is not a coincidence; it reflects not only the government's comparative advantage but also a strong interest in managing the public face of the proceedings.
Problems with the Tribunal's Scope
Both the tribunal's narrow design and preponderantly Cambodian composition have drawn fire. Its focus on a small universe of Khmer Rouge offenders has led to complaints that it paints an incomplete picture of history, omitting—and implicitly downplaying—the abuses of foreign powers and rival Cambodian groups before and after the Pol Pot era. The ECCC's balance of influence has also been subject to attack and led a number of leading human rights advocates to discount the credibility and value of the tribunal even before it began operations.
Politics and the ECCC in Practice
Since 2006, investigations have been undertaken, arrests made, and one trial completed. Thousands of survivors have participated in the process by filing complaints, becoming parties to the proceedings, or visiting the tribunal. Alongside these accomplishments, however, the ECCC has faced serious challenges. The tribunal has run far past its original budget and three-year mandate, and suffered from various administrative shortcomings, leading one critic to argue that it was devolving into a “theater of the absurd.” These difficulties have caused renewed tension between national and international actors.
Many of the tribunal's international critics have focused on its administrative problems. Shortly after the ECCC became operational in 2006, the Open Society Justice Initiative (OSJI)—a prominent human rights NGO—raised concerns about hiring practices on the Cambodian side of the tribunal. The UN Development Program followed up with a review led by the former heads of administration of the ICTY and hybrid tribunal for Sierra Leone.
The confidential UNDP report was leaked and contained damning conclusions, pointing to administrative shortcomings in numerous areas, including hiring practices, translation, witness protection, and public affairs. The UNDP report recommended withdrawing from the ECCC if the Cambodian government did not promptly take remedial action. Beginning in early 2007, allegations also surfaced of a kick back scheme in which Cambodian employees paid a portion of their salaries to their superiors for their appointments. OSJI and local media first drew attention to the problem, and in 2008 UN auditors conducted a confidential review.
Evidence of mismanagement and corruption reignited debates within the international community over the merits of working with the Cambodian government at the ECCC. The allegations in the OSJI and UN reports were serious and prompted UNDP to suspend funding of the Cambodian side of the tribunal. Given the overwhelming international sponsorship of the tribunal, that suspension threatened to bring the process to a halt.
The Cambodian government denied the corruption charges and suggested, in an apparent “tit for tat” move, that it had evidence of UN malfeasance. However, Cambodian officials did participate in the formulation of a new personnel handbook, remove a few key administrative officials, and set up an anti-corruption mechanism. Human resources practices have since improved considerably. The government's appointment of a new “independent counselor” to monitor corruption efforts was faulted for providing inadequate sanctions for offenders and protection for whistle-blowers, but no new corruption allegations have surfaced of late.
The ECCC's administrative shortcomings have been real, and investigations into them were necessary. However, those inquiries also bore a relation to simmering political tensions. They were led by UN staff and focused primarily on deficiencies within the Cambodian side of the court. In addition to promoting an effective accountability process, critiques of the Cambodian side suggested the need for an expanded UN management and oversight of the process. They can thus be seen as part of an ongoing struggle for managerial control over the tribunal.
In general, the ECCC's jurisprudence has been less overtly polarized along national-international lines. Although the tribunal is constituted as a special part of the Cambodian judicial system and applies some national laws and procedures, its judicial rulings have tended to follow international precedents from the ICTY, ICTR, International Criminal Court (ICC), and other hybrid tribunals.
Since mid-2007, the tribunal's pre-trial chamber has issued a number of important decisions. Most have dealt with challenges to pre-trial detention by the five charged persons in custody. (The five include Duch and four defendants awaiting a joint trial in “Case No. 2”—Nuon Chea, Pol Pot's deputy chairman of the Communist Party of Kampuchea; Ieng Sary, the DK foreign minister and deputy prime minister; Ieng Thirith, his wife and former DK cabinet minister; and Khieu Samphan, president of the DK state presidium.) The pre-trial chamber has rejected claims that some defendants are too ill or incapacitated to stand trial. It has also shown a degree of independence from the Cambodian government, most notably by rejecting Ieng Sary's claims that the principle of “double jeopardy” and his 1996 amnesty and pardon bar the tribunal from prosecuting him.
The pre-trial chamber judges and other key court personnel have split along one key issue, however: the matter of the court's personal jurisdiction. In late 2008, a dispute arose between the co-prosecutors. The international co-prosecutor sought to commence investigations for Case No. 2, and his Cambodian counterpart demurred. Hun Sen publicly defended the Cambodian prosecutor's position, saying in March 2009 that he would “rather let the court fail than let the country fall into war.” The Prime Minister's comments prompted accusations from international NGOs of political interference. This recalled the debates over personal jurisdiction during the negotiations for the establishment of the ECCC.
The international co-prosecutor took the matter to the pre-trial chamber, which has authority to resolve such disputes. In an August 2009 decision, three Cambodian judges voted against the additional prosecutions, and two international judges supported them. In the absence of the required supermajority, the pre-trial chamber was unable to stop the investigations from moving forward. That non-decision has left an awkward result. The international co-investigating judge is proceeding with the inquiry, but without the assistance of his Cambodian partner. A future showdown on the issue appears inevitable.
The trial chamber has yet to be gripped by such a divisive issue. It has completed its first case against Duch. His conviction was a near certainty, since Duch acknowledged his participation in the atrocities at Tuol Sleng. His case did not raise serious political sensitivities, because Duch was largely a functionary with no past or present ties to the CPP. The trial chamber issued a judgment that applied international principles to hold Duch criminally responsible and subsumed the domestic crimes of murder, torture, and religious persecution within the international offenses of war crimes and crimes against humanity.
The trial chamber notably accepted Duch's argument that he had been illegally detained for several years by the Cambodian government prior to his trial and took that factor into account at sentencing. This—like the pre-trial rulings on Ieng Sary—showed a meaningful degree of independence from the Cambodian government. There was reportedly some divergence between national and international judges on the length of Duch's sentence, with international judges favoring a shorter sentence, but the trial chamber settled on a 35-year sentence with a five-year reduction to compensate Duch for his illegal detention.
Many survivors were disappointed with the length of Duch's sentence, and the co-prosecutors have appealed. Foreign Minister Hor Nam Hong echoed the view that “the sentencing was too light” but quickly cautioned that he was expressing his “own point of view, not that of the government.” The Cambodian government did not issue a public challenge to the court's ruling. Hun Sen, who was out of the country on the day of the verdict, merely said: “I fully respect it,” adding “the government has no right to interfere or put any pressure on the court.”
Events to date thus suggest that the Cambodian government is primarily concerned with ensuring that the tribunal stays within desired jurisdictional bounds. Within that frame, the CPP appears much less inclined to interfere. The same is true on the international side, where donors and UN-appointed experts have focused most of their energies on driving administrative reform and have not intruded into the ECCC's judicial decision-making. Despite obvious jurisdictional spats and administrative troubles, the basic judicial integrity of the trials appears intact.
The accountability process in Cambodia has been slow, limited, and often precarious due to the political tensions between the government and key international actors. It provides a reminder that legal proceedings of this kind exist within a shifting frame of political possibility. Within that frame, a legitimate legal process can take place, but it will not address all of the concerns of Cambodian survivors, many of whom never saw the defendants on trial and live side-by-side with the low-level cadres who inflicted harm upon them.
Surveys suggest that most Cambodians do support the Khmer Rouge trials. Numerous survivors have participated by filing file complaints, serving as witnesses, or joining the criminal proceedings as civil parties to seek “collective and moral reparations” for harms they suffered as a result of the defendants' crimes. Despite a slow start on outreach, the tribunal's in-country location, NGO efforts, and media coverage have all increased public awareness—even if Duch's sentence recently disappointed many observers.
Nevertheless, there is little evidence that the tribunal is having a significant effect on Cambodian politics. The ECCC is not as politically “transitional” as processes in many other post-conflict countries; the CPP established a solid grip on power well before the proceedings began. Most Cambodians still have a dismal view of the country's corrupt judicial system, but the ECCC does not appear to have exacerbated that view.
In sum, the trials appear to be doing the Cambodian government no harm and perhaps modest good. They help reinforce the CPP's anti-Khmer Rouge legacy and create at least the possibility of a modest diplomatic makeover with the West. For the United Nations, the tribunal has been a source of considerable concern, but improvements to court administration and completion of the Duch trial represent significant successes. If the second case—which will likely be more challenging than the first given the high-ranking nature of the defendants—is well managed, the ECCC could exceed critics' expectations and advance the broader project of UN-led international criminal justice. The process will continue to be closely managed and contested as both domestic and international actors try to steer the judicial process toward outcomes that comport with their political objectives. That tension is built into Cambodia's hybrid court structure and is a fundamental aspect of the challenge of delivering transitional justice.
JOHN D. CIORCIARI is assistant professor in the Gerald R. Ford School of Public Policy at University of Michigan, and Senior Legal Advisor to the Documentation Center of Cambodia.
1. On the rise of the Khmer Rouge movement, its early tutelage and support from Vietnam, and its gradual drift toward an anti-Vietnamese posture and closer ties to China, see Ben Kiernan, How Poll Pot Came to Power: Colonialism, Nationalism, and Communism in Cambodia , 2 nd ed. (New Haven: Yale University Press, 2004); and Steve Heder, Cambodian Communism and the Vietnamese Model. Imitation and Independence , 1930- 1975 (Bangkok, Thailand: White Lotus Press, 2004). [Return to Text]
2. Some of the most informative studies of the DK regime's political machinations and foreign relations include Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79 (New Haven: Yale University Press, 1996); Nayan Chanda, Brother Enemy: The War after the War (New York: Harcourt Brace Jovanovich, 1986); and David P. Chandler, Voices from S-21: Terror and History in Pol Pot's Secret Prison (Berkeley: University of California Press, 1999). [Return to Text]
3. The 1979 tribunal had serious procedural defects; it convicted Pol Pot and Ieng Sary of genocide after five days, but they remained at large. See Evan Gottesman, Cambodia after the Khmer Rouge: Inside the Politics of Nation-Building (New Haven: Yale University Press, 2002), 60-66. In 1986, investigators presented information on Khmer Rouge crimes, but no trials were forthcoming. Hurst Hannum and David Hawk, The Case Against the Standing Committee of the Communist Party of Kampuchea , (New York: Cambodia Documentation Commission, 1986). [Return to Text]
4. On the events of 1997, see Sorpong Peou, Intervention & Change in Cambodia: Towards Democracy? (Singapore: Institute of Southeast Asian Studies, 2000), 290-310. [Return to Text]
5. U.S. Rep. Dana Rohrbacher (R-CA) made this comment in advancing H.Res. 533 in 1998. See H. Res. 533, “Statement of U.S. Rep Dana Rohrbacher,” Expressing the Sense of the House of Representatives for the Culpability of Hun Sen for War Crimes , Crimes Against Humanity, and Genocide in Cambodia (10 October 1998). [Return to Text]
6. For more detailed accounts of the negotiations leading to the ECCC, see David Scheffer, “The Extraordinary Chambers in the Courts of Cambodia,” in International Criminal Law, ed M. Cherif Bassioni (Lieden: Martinus Nijhoff Publishers, 2008); Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport: Prager Publishers, 2005); and John D. Ciorciari, “ History and Politics behind the Khmer Rouge Trials ,” in On Trial: The Khmer Rouge Accountability Process , ed. John D. Ciorciari & Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009) 33-84. [Return to Text]
7. Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (6 June 2003); and Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as amended and promulgated on 27 October 2004, NS/RKM/1004/006 [hereinafter ECCC Law]. [Return to Text]
8. ECCC Law, supra note 4 , articles 3-8. [Return to Text]
9. Ibid. article 1. [Return to Text]
10. See Report of the Group of Experts for Cambodia, established pursuant to G.A. Res. 52/135, U.N. GAOR, 53d Sess., Annex, ¶ 110, U.N. Doc. A/53/850, S/1999/231 (16 March 1999). [Return to Text]
11. The concept of a co-investigating judge is drawn from the civil law tradition. Co-prosecutors prepare an initial submission on particular suspects and send it to the co-investigating judges, who investigate the matter before sending the case file back to the co-prosecutors, who then prepare a final submission. Lastly, the co-investigating judges issue a “closing order” determining whether to indict the suspect—and thus send the matter to the trial chamber—or to dismiss the case. See Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, as revised on 9 February 2010, rules 53-67. [Return to Text]
12. For an overview of ECCC administration and review of the challenges the tribunal faced in the 2007-09 period, see John A. Hall, “Court Administration at the ECCC,” in On Trial: The Khmer Rouge Accountability Process , ed. John D. Ciorciari & Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009) 172-81. [Return to Text]
13. Noam Chomsky has called the process a “farce” due to its “scandalous” failure to deal with U.S. intervention. See Noam Chomsky , “Noam Chomsky Interview,” interview by George McLeod ( Phnom Penh Post 26 March 2009) See also John Pilger, “Cambodia's Empty Dock,” The Guardian (Manchester, UK) 21 February 2009. Most such arguments have focused on U.S. responsibility, though China was the principal external sponsor of the Pol Pot regime. [Return to Text]
14. See, e.g., Human Rights Watch, “Serious Flaws: Why the UN general Assembly should require changes to the Draft Khmer Rouge Tribunal Agreement ”. Ref.: http://www.hrw.org/en/reports/2003/04/30/serious-flaws-why-un-general-assembly-should-require-changes-draft-khmer-rouge-tr. See also, Amnesty International, “Kingdom of Cambodia: Amnesty International' Position and Concerns Regarding the proposed “Khmer Rouge” Tribunal,” Ref.: http://www.amnesty.org/en/library/info/ASA23/005/2003. [Return to Text]
15. Sophal Ear, “Cambodian “Justice,” Wall Street Journal Asia , 1 September 2009. [Return to Text]
16. See generally UN Development Program, Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia (ECCC) , Report No. RCM0172. (4 June 2007). [Return to Text]
17. One international staffer on the ECCC called the Cambodian accusations “childish, thuggish behavior we have come to expect from the government.” See John A. Hall, “In the Cambodian Judges' Court,” Wall Street Journal Asia, 28 May 2009. [Return to Text]
18. On the ECCC's jurisprudence, see Anne Heindel, “Jurisprudence of the Extraordinary Chambers,” in On Trial: The Khmer Rouge Accountability Process , ed. John D. Ciorciari & Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009) supra note 3 , at 85-124. [Return to Text]
19. Ek Madra, “Cambodian PM Rejects Wider Khmer Rouge Trials,” Reuters, 31 March 2009. [Return to Text]
20. Georgia Wilkins, “HRW Bashes Hun Sen on ECCC Stance,” Phnom Penh Post , 24 July 2009; James O'Toole, “Gov't Interference still besets Tribunal: OSJI,” Phnom Penh Post , 26 March 2010; Open Society Justice Initiative, Report on Judicial Independence, June 2010. Interestingly, the U.S. State Department took a different approach, emphasizing that “there was no evidence the work of the court was inhibited in any way,” perhaps reflecting the U.S. interest in seeing the first two cases through to fruition. See U.S. State Department, Bureau of Democracy, Human Rights, and Labor, “2009 Human Rights Report: Cambodia ,” (11 March 2010). [Return to Text]
21. See Judgment, ECCC Trial Chamber, Case File/Dossier No. 001/18-07-2007/ECCC/TC 20-197 (July 26, 2010). [Return to Text]
22. Id. at 198-216. [Return to Text]
23. Suy Se, “Khmer Rouge Jailer's Sentence Too Light,” Agence France-Presse , 28 July 2010. [Return to Text]
24. Sopheng Cheang, “Cambodian Leader “Respects” Duch Verdict,” Associated Press , 4 August 2010. [Return to Text]
25. Most surveys estimate support for the tribunal at well over two-thirds and support for more abstract notions of justice at even higher levels. See, e.g., Phuong Pham and others, So We Will Never Forget (Berkeley: University of California Press, 2009); International Republican Institute, “Survey of Cambodian Public Opinion: January 25-February 26,” (2008); and Ly Sok-Kheang, “Follow-up Survey on National Reconciliation,” (2007). On file at the Documentation Center of Cambodia. The University of California at Berkeley is undertaking a new survey to follow the Duch trial. [Return to Text]
26. The ECCC's civil party mechanism has been one of its most innovative and challenging features. For background on the mechanism and a discussion of early challenges, see Sarah Thomas and Terith Chy, “Including the Survivors in the Tribunal Process,” in On Trial: The Khmer Rouge Accountability Process , ed. John D. Ciorciari & Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009) supra note 3 , at 244-52. [Return to Text]
27. For reflections on the Duch verdict, see John Ciorciari, “The Duch Verdict,” Cambodia Tribunal Monitor , 28 July 2010. [Return to Text]