By ERIKA KINETZ
N E W S W E E K
The long overdue trials of surviving Khmer Rouge leaders now appear to be threatened by defects in the United Nations-backed tribunal set up last year in Phnom Penh, Cambodia. The court, dubbed the Extraordinary Chambers in the Courts of Cambodia (ECCC), suffers from leadership and management problems so severe that the UN should either take much firmer control or consider getting out entirely. That, at least, was the conclusion of two stark assessments—one by the U.N. Development Program (UNDP) and the other by two UN experts—that became public in the last two weeks, putting the cash-strapped tribunal under increasing pressure to reform.
The news must be disheartening to those who hoped the Cambodian people might finally see some form of justice. Thirty years after the Khmer Rouge bludgeoned, worked and starved to death about a quarter of Cambodia's population, two of the regime's most notorious leaders are finally in jail. Three more suspects are expected to be arrested soon by the ECCC. And a major fundraising campaign to pay for the courts is scheduled to begin soon.
But it's not yet clear how far donors, who are footing almost the entire bill for the tribunal, will go to stave off the growing concern that this court could devolve into an old-style Cambodian network of nepotism and corruption, abetted by weak international leadership. The ECCC's administration, budget and judiciary are split into Cambodian and UN sides. The court is headed by a Cambodian administrator, and Cambodian judges are in the majority in all chambers.
In their confidential June report obtained by NEWSWEEK, the two U.N. experts—Robin Vincent, the former registrar for the Special Court for Sierra Leone, and Kevin St. Louis, the Chief of Administration for the International Criminal Tribunal for the Former Yugoslavia—called the split structure "divisive and unhelpful." They said they could see no good reason why the court had been set up as such "save for possibly a sense that the division was in place to protect the 'sovereignty' of the National Staff side." They cited "considerable frustration" with the court's leadership among international staff, which they feared had so corroded morale that key staffers would continue to leave; several have already quit the court. After more than a year, the UN experts said, renovation work on the main courtroom had not even begun, and they pointed to serious problems with crucial court functions like translation, witness protection and public affairs.
The court recently announced that it's looking to replace its top international administrator, Michelle Lee. The tribunal's U.N. spokesman, Peter Foster, says that Lee's retirement has been long-planned; she turns 60 this summer, at which point she must retire, under U.N. rules.
The ECCC made the second report, an audit of Cambodian human resources practices commissioned by UNDP, public on Tuesday. UNDP, which manages $6.4 million in funds for the Cambodian side of the tribunal, had for months refused to share the written audit results, even with donors and members of its tribunal oversight board. The Cambodian side of the court opted for transparency, bowing to pressure from the imminent fundraising campaign and a series of scathing editorials in The Wall Street Journal, kicked off when Chapman University law professor John Hall got his hands on a draft copy of the tightly-held UNDP audit. In making a lightly edited version of the final audit public, along with its rebuttals, the ECCC said it hoped to "to put an end to uninformed speculation that damages the process of justice."
In the report, UNDP auditors objected to weak oversight, bloated salaries and recruitment problems so severe that that they said all staffing decisions on the Cambodian side of the court should be nullified. They added that if the tribunal does not adopt necessary reforms, UNDP should consider pulling out of the project entirely. In nearly two-thirds of the personnel files auditors reviewed, staffers did not meet the qualifications for their jobs. In one case, the job called for a degree in English and a minimum of 3 years experience in interpretation, but the selected candidate, who was paid $3,500 a month (an enormous sum in Cambodia), had only part-time experience as a translator and was pursuing a degree in education. One candidate was hired for a position he did not apply for. In another case, a candidate's job application letter was dated the day after she was offered a contract. Auditors also objected to large raises—in one instance, from $650 to $2,850 a month—paid to four staff appointed by the government, whose personnel files they weren't able to access.
In its response to UNDP, the ECCC said most of the perceived irregularities were honest mistakes, which could have been clarified had UNDP auditors not unilaterally cancelled their exit interviews with the court's head of personnel and director of administration. The tribunal has brought in a battery of consultants to help it shape up. And it has already embraced some light reforms, publishing a manual that formalizes recruitment procedures, adopting a mandatory code of ethics, deepening the involvement of international staff in personnel management, and embarking on a round of skills testing to ensure that staffers are in fact qualified for their jobs. But the ECCC objects to the big suggestions—that the UNDP take a more direct oversight role, Cambodian contracts be nullified and salaries cut. Those steps would be "tantamount to internationalizing the ECCC," Cambodian officials said, a prospect they called "unacceptable and non-negotiable."
Internationals aren't eager to return to the negotiating table either. It took about 8 years to hammer out the rickety structure of this hybrid tribunal, and prolonged haggling over the court's procedural rules this year made plain that Cambodians are serious about their sovereignty. "This is a Cambodian court. We are only mandated to provide assistance," Foster says.
UNDP and members of the diplomatic community say they're confident they can put the court back on the road to health, even working within the existing structure, which may do more in the long run than a purely international court could to improve Cambodia's beleagured judiciary. "In our view, there is sufficient international presence in the ECCC to allow the hybrid model of the tribunal to succeed," said Rafael Dochao-Moreno, the charge d'affaires for the European Commission, which has given $1.4 million to the Cambodian side of the court. "it was the best solution which allowed the tribunal to be established and to ensure overall Cambodian ownership at the same time."
Neither report addresses thoroughly the long-standing allegations that Cambodian employees had to pay kickbacks for their jobs. One Cambodian, who spoke to NEWSWEEK on condition of anonymity, said he had to hand over 25 percent of his salary in exchange for his job at the tribunal. "They make a business in this office," he said. "It's not fair." He said that before signing an employment contract, he was called for an interview to "negotiate his salary," at which the payment scheme was discussed. "Everyone has to pay," he said, adding: "If we don't say OK, there's no need to be employed."
He said that he was required to make the payments, in cash, shortly after his paycheck was direct deposited in his bank account each month. He said he did not know for sure where the money ended up. "You cannot get evidence," he said. For him, it's a question not just of lost salary, but also of what kind of legacy the ECCC will bequeath to Cambodia. "I want to improve good governance in this court, especially the Cambodian side," he said. "They teach Cambodian employees how to make corruption."
The Open Society Justice Initiative, an independent New York-based court monitor, first publicized the kickback allegations in February, but the push for accountability has devolved into a morass of finger-pointing. UNDP, whose $6.4 million is mostly used to pay Cambodian staff salaries, tried to wash its hands of responsibility. In a memo on the audit, UNDP concluded that the kickback allegations pertain to "personnel of the Government of Cambodia and therefore fall outside UNDP's jurisdiction." The letter further argued that because a "preliminary assessment" had yielded no conclusive evidence to substantiate the kickback claims, no further action by UNDP was required.
"That's stupid," said one high-ranking Western diplomat in Phnom Penh. "We cannot be blind to bribes."
ECCC officials have denied the kickback charges, and Helen Jarvis, the ECCC's chief spokeswoman, says the court has explicitly banned kickbacks in its new code of ethics and set up drop boxes at the court, where staffers can lodge anonymous complaints. The Cambodian government, meanwhile, has made no public move to investigate the allegations. Asked in June what the government is doing to address the allegations of corruption at the court, Deputy Prime Minister Sok An pointed back to UNDP. "We are fully aware about the problem," he said, adding, "The audit was done."
The kickback charges cast a cloud over the tribunal's judicial work, which has proceeded with far more diligence and speed over the last two months than many believed possible. On Sept. 19, Nuon Chea, the most senior Khmer Rouge leader still alive, joined his old comrade, Duch, who ran the notorious S21 torture prison--now a popular Phnom Penh tourist destination--in the tribunal's jail.
Nuon Chea is 82 and in frail health. Tribunal judges ordered a Bangkok heart specialist to do a thorough exam this week, after an initial round of questioning had to be cut short when, his lawyer said, his blood pressure rose precipitously. The detention center is already tackling a host of issues more suited to a retirement home than a prison. Nuon Chea requested a thicker mattress and a sit-down toilet, according to his lawyer: The Cambodian-style squat toilet was too much for his old, stiff knees to handle.