This article was originally published in the Korea Herald. James Goldston is executive director of the Open Society Justice Initiative.
These days suspected war criminals—from Rwanda to Serbia to Sierra Leone—are in the dock. Dozens are still on the run, but hope remains that they, too, will face justice. But this is not true of the perpetrators of the Cambodian genocide of the 1970s. They remain free, and nobody is looking for them.
A quarter of Cambodia's population of eight million was executed, starved to death, or succumbed to disease during the Khmer Rouge's rule from 1975-9. There has been no real trial, no truth commission, and no official acknowledgement of one of the most heinous crimes in human history.
As a result, many Cambodians born since 1979 do not understand the scope and gravity of the atrocities. Meanwhile, the anguish and sorrow of survivors—almost all of whom lost loved ones—have not found redress.
This may be about to change. A year ago, the United Nations and the Royal Government of Cambodia agreed in principle to establish "Extraordinary Chambers" composed of Cambodian and international prosecutors and judges to investigate and try the "senior leaders of Democratic Kampuchea and those who were most responsible for crimes" under Khmer Rouge rule.
Ratification of the agreement has been delayed by the stalemate among Cambodia's bickering political parties following last year's elections. But a breakthrough appears close.
The formal decision to create a tribunal for the Khmer Rouge represents a major achievement after a decade of diplomatic effort. To implement it, however, a number of hurdles remain to be overcome. The first obstacle is cost. Cambodian authorities can help build their credibility by curbing the temptation to pad bills and inflate salaries. But outsiders will inevitably bear the lion's share of the budget for the tribunal.
The current estimate—$50 million over three years—has shocked donor governments. But this compares favorably with the Special Court in Sierra Leone (more than $70 million over three years), and the $100 million spent annually on the international courts for Rwanda and Yugoslavia.
The price is appropriate. The United States and other western governments fueled Cambodia's civil war in the 1970s, then lent the Khmer Rouge legitimacy in the 1980s by insisting that they continue to occupy Cambodia's seat at the U.N. If the Khmer Rouge trials are to proceed, donor countries must see the Extraordinary Chambers as a prudent investment toward a stable and productive Cambodia. Given how long it has taken to get this far, donors must act quickly to come up with the necessary funds.
The second hurdle stems from the fact that Cambodia's tribunal will be the first internationalized court in which domestic judges form a majority. This poses a particular challenge in a country where lawyers were among the targets of genocidal violence, where few sitting judges possess formal legal training, and which has little tradition of judicial independence. There is thus concern that some in Cambodia's government—which includes officials who once served under the Khmer Rouge—will seek to hijack the trials for political ends.
In order to ensure a credible process, Cambodia and the U.N. must select judges of the highest caliber, not those that toe a party line. Prosecutors must follow the evidence wherever it leads. The trials should be conducted transparently and with broad public involvement. Nongovernmental monitors need to scrutinize the proceedings to ensure that errors are identified early enough to be corrected. The U.N. must make clear that it will halt the tribunal if it falls short of international standards.
The third hurdle is the danger that the Extraordinary Chambers will be regarded as the end rather than the beginning of a long-term search for accountability and legal reform. Given time and resource constraints, it is unlikely that more than a dozen defendants will be tried. But thousands of others took part in the violence. Their many victims will rightly seek some form of accounting and, at a minimum, an official record of the crimes they suffered. Before long, an effort to document and publish the truth will be necessary.
Done properly, the proceedings of the Extraordinary Chambers could have further positive ramifications by contributing to lasting changes in Cambodia's ordinary courts. By highlighting positive models of judging and legal advocacy, the trials may stimulate public demand for domestic tribunals that dispense justice fairly and effectively. Cambodia's government and international donors should respond to this demand by launching reform programs that extend beyond the life of the Extraordinary Chambers.
The Khmer Rouge prosecutions will not be perfect. But they are necessary. Pol Pot died in 1998, but aging senior associates like "Brother Number Two" Nuon Chea and ex-Khmer Rouge president Khieu Samphan live freely in Cambodia. With sufficient resources, and a determination not to compromise on quality, the Extraordinary Chambers can provide a measure of justice for the victims and an example of the power of the law to serve the public good.