New Report Stresses Lessons in Shortcomings of Cambodia’s Khmer Rouge Tribunal

NEW YORK—A wide-ranging independent assessment of the work of Cambodia’s Khmer Rouge tribunal has set out a series of recommendations for any future attempt to pursue mass atrocity trials using a similar “hybrid” court structure.

The new 140-page report from the Open Society Justice Initiative, Performance and Perception: The Impact of the Extraordinary Chambers in the Court of Cambodia assesses the ECCC’s efforts to provide accountability, and its broader impact on the development of the rule of law in Cambodia since it began operations in 2007. The report also draws on a series of in-depth interviews carried out both in Phnom Penh and in rural Cambodia to look at how the intended beneficiaries of the court feel about its work.

Introducing the report, James A. Goldston, executive director of the Justice Initiative, writes:

“The Khmer Rouge tribunal has brought a measure of accountability for some of the most heinous crimes of the 20th century. But its potential to foster greater respect for the rule of law in Cambodia has been stunted by inconsistent funding, intransigence at home, and inadequate political backing from abroad.”

The ECCC was set up under an agreement between Cambodia and the United Nations to bring to justice Khmer Rouge leaders and those most responsible for war crimes, crimes against humanity and genocide committed under the regime that controlled Cambodia from 1975 to 1979. The agreement established special courts within Cambodia’s court system that mixed international and local judges, lawyers and staff, and which applied international law to the investigation and prosecution of surviving Khmer Rouge figures.

Its prosecution of the top surviving Khmer Rouge leaders has been called the biggest war crimes trial since Nuremberg. Yet the tribunal’s operations have been dogged by allegations of political interference, and complaints over the slow pace and the costs of the proceedings.

The assessment of the court’s record comes when similarly structured “hybrid” courts mixing international and local judges with UN involvement are under discussion to pursue justice for mass atrocities in Sri Lanka and in the Central African Republic.

While noting that the Khmer Rouge tribunal “was shaped by a variety of historical and contextual factors,” the report argues that “broad lessons may be distilled from its experience to inform possible future hybrid tribunals.” These include:

• Domestic political will. A sustained domestic political commitment to holding fair trials that are marked by judicial independence and compliance with international standards is a threshold criterion for a successful hybrid tribunal.
• Secure funding. Reliance on voluntary funding from international donors that must be secured on a yearly basis is a grossly inefficient and dangerous funding strategy. 
• Commitment to protecting international standards. A successful hybrid tribunal requires the explicit commitment of the United Nations, and states backing the project, to upholding international fair trial standards, including judicial independence.

The report also cites other lessons, including adequate training of judges, staff and counsel, and the need to ensure that “the court must not cost so much and last so long that it strains the patience of the population it seeks to serve and undermines its own credibility.”

Performance and Perception draws on the Justice Initiative’s extensive monitoring and reporting on the ECCC’s development and operations, part of our broader support for efforts to ensure that those most responsible for genocide, crimes against humanity and war crimes are brought to justice. This includes providing informed and balanced trial reporting through our International Justice Monitor website (www.ijmonitor.org).