On May 7, 15 Cambodian judges and two public prosecutors were appointed to serve on the Khmer Rouge tribunal alongside 11 international judges and two prosecutors. The appointment has met with a lot of criticism that those judges and prosecutors lack adequate professional qualifications and independence, and that the trials cannot meet international standards of justice. Furthermore, the appointment has breached a ban on appointment of judges and prosecutors who have faced previous criminal or disciplinary penalties. At least two of the Cambodian judges, Ya Sokhan and Thong Ol, are known to have been disciplined by the Cambodian Supreme Council of Magistracy.
The United Nations, which is providing assistance for the tribunal and supplying the international judges and prosecutors, has kept silent. It seems willing to work with those Cambodian judges and prosecutors. This is highly problematic, for at least two reasons.
First, this arrangement violates its agreement with the Cambodian government, especially the provision on the trials being conducted in accordance with international standards of justice, fairness and due process of law, as set out in articles 14 and 15 of the International Covenant on Civil and Political Rights. Under article 14, any accused is “entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
Secondly, by failing to respond, the UN is undermining 13 years of efforts, many by its own officials and experts, to build an independent judiciary in Cambodia and also missing a golden opportunity to further this work. By failing to respond, it is condemning the judiciary to remain under executive control forever. It is also bitterly disappointing public expectations that the Khmer Rouge tribunal would lay the foundation for the rule of law in Cambodia and affirm the separation of powers and independence of the judiciary that is stipulated in its constitution, by establishing a model for competent, impartial and independent courts, judges and prosecutors.
To understand why this is such a precious opportunity that cannot be missed, it is necessary to review the current situation of the Cambodian judiciary and work done to improve it. Under the 1991 Paris Peace Accords, which ended the country’s protracted conflict, the UN Secretary General has appointed a series of special envoys for human rights in Cambodia. Since 1993 to now there have been four, all of which have expressed concern at executive control of the judiciary.
In the first report of 1994, Justice Michael Kirby (Australia) described how Cambodian judges consulted with the Ministry of Justice on the determination of cases, and accepted gifts. He called for the adoption of a judicial code or similar law to ensure the independence and integrity of judges. His second report noted that in addition to consulting with judges on determination of cases, the Ministry of Justice was issuing instructions to judges and prosecutors on the interpretation of laws. He later sought the enactment of a law on the status and functioning of the judiciary to address, among other things, membership of judges and prosecutors in political parties.
The second envoy, Ambassador Thomas Hammerberg (Sweden), noted that judges and prosecutors attended meetings of the ruling Cambodian People’s Party (CPP), and were subject to interference from members of the executive, particularly provincial government officials, especially in political cases. Hammerberg said in 1997 that “virtually all judges and prosecutors in Cambodia are members of CPP”. He also pointed to political bias in the judiciary and welcomed a provision in the draft law on political parties to prohibit members of the judiciary from membership in them. He called on parties to cease their interference and pressure. However, the provision to prohibit party membership was not included in the law on political parties when it was finally adopted in 1998. Hammerberg noted that direct or indirect political pressure continued to be a problem, but that some magistrates “would be prepared to renounce their party affiliation if requested to do so by law or the Supreme Council of Magistracy”. He urged further discussions on this issue in order to sever the links between judges and political parties. At the end of his mandate in 2000 Hammerberg noted that conditions had changed little, and added that judicial independence was “further threatened by the limited police respect for court orders and their failure to carry out court judgments and orders”.
The third envoy, Professor Peter Leuprecht (Austria), in 2001 observed the same disregard for judicial independence and political affiliations among judges and prosecutors as had his predecessors. He urged top-down down reform, starting with the Supreme Council of Magistracy itself. He reiterated their calls and recommended that article 15 of the Law on Political Parties be amended so as to dissociate the Supreme Council members, judges and prosecutors from political parties. He also noted that the executive remained reluctant to relinquish power to the judicial and legislative arms of government. His calls too went unheeded.
Since October 2005, Professor Yash Ghai (Kenya) has served as the fourth envoy. In March 2006 he reaffirmed the continued executive interference in the work of the courts, and inability of the Supreme Council of Magistracy to carry out its crucial role of safeguarding the integrity and independence of the judiciary. He has called for an end to executive interference. His call was followed this May with a five-day visit to Cambodia by the UN High Commissioner for Human Rights, Louise Arbour. On May 19, at the end of her trip, she said that the problems with the Cambodian judiciary are “profound”. According to her, “lack of professional training, insufficient guarantees of independence and lack or perception of lack of integrity are at the heart of what needs to be addressed, both by legislation and by a change of the culture”.
In fact all of these problems had already been raised by a group of experts appointed by the UN Secretary General in 1998 to do a feasibility study on a Khmer Rouge tribunal, following a request from the government of Cambodia. The group, comprising of its chairman Sir Ninian Stephen (Australia) together with Judge Rajsoomer Lallah (Mauritius) and Professor Steven R Ratner (USA), was assigned to evaluate existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders; assess the feasibility of their apprehension, and explore legal options for bringing them to justice before an international or national jurisdiction.
In its 19 February 1999 report, the group of experts flatly rejected the option of a tribunal under Cambodian law, even with the participation of international organisations or foreign governments. It went so far as to decide against UN involvement in establishing such a tribunal, in view of insurmountable obstacles. It noted that the foundation of law in Cambodia was “somewhat imprecise and its functioning deficient in most important areas”. It found that the flaws in the Cambodian judiciary were so serious that a tribunal under domestic law could not meet the three key criteria for a fair and effective judiciary, namely, a trained cadre of judges, lawyers, and investigators; adequate infrastructure; and, a culture of respect for due process. It made detailed remarks about shortcomings under the third criterion. It noted, among other things, the close association of the vast majority of judges with the CPP, and the overt or covert influence of powerful elements in the government–particularly the security apparatus and Ministry of Justice–over judges. The group concluded that even with international participants, any trials under Cambodian law “would be subject to manipulation by political forces”.
The group’s prediction is now being realised. Since the May 7 appointment of judges and prosecutors for the Khmer Rouge tribunal, no attempt has been made to deny that they are politically biased. On the contrary, the authorities have confirmed this. When asked whether the 17 appointees were ruling party members, the Minister of Information Khieu Kanharith replied with the rhetorical question, “Who is not a member of a political party?” Responding to a later remark that those judges and prosecutors had been seen participating in political campaigns during elections, the minister said that, “Party political campaigning is within judges’ rights outside of court hours.” A Secretary of State for Justice, Tuot Lux added that, “According to the constitution, judges and prosecutors are free to participate in politics outside of office hours,” when in fact there is no such provision in the constitution. Nor have any of the judges denied membership in political parties, and at least one, the tribunal’s pre-trial chamber judge Ney Thol, is publicly known to be a member of the CPP central committee. He is in good company there, as the president of the Court of Appeal, Ly Vuoch Leng, is also a member, and the president of the Supreme Court, Dith Munty, is a member of its standing and permanent committees.
With the majority of Cambodian judges and prosecutors serving as active members of the national ruling party, the Khmer Rouge tribunal has failed even before it has begun. It is not independent, and nor can it be. It will be politically manipulated, as described and predicted by successive United Nations experts. The judges and prosecutors, knowing that the tribunal will last for only three years and that their careers back in the ordinary domestic courts will depend on a compliant performance, will readily neglect constitutionally and internationally recognized principles of impartiality in order to do the bidding of their political masters. And what should be especially worrying is that the manifest conflicts of interest among the judges will be easy grounds for recusal by the defendants.
By failing to act, the UN is turning a golden opportunity for justice into a golden opportunity for farce and impunity. It is effectively endorsing executive control of the Cambodian judiciary: the de facto abolition of the judicial independence enshrined in the constitution. If it continues along this path, its assistance of the Khmer Rouge tribunal will do far more harm than good to the Cambodian people. It will thwart their aspirations for independent and functioning courts, and perhaps abet the escape from justice of the defendants.
The United Nations must take a strong stand against the appointment to the Khmer Rouge tribunal of Cambodian judges and prosecutors who are active members of the ruling party. It must use the tribunal to affirm the separation of powers and further the independence of the Cambodian judiciary.
The Asian Human Rights Commission today calls for the UN Secretary General to intervene in order to ensure that the body which he leads is not found to be hand-in-hand with Cambodian judges and prosecutors who are holding political party membership. The Secretary General should request the King of Cambodia and the Supreme Council of Magistracy, which he chairs, to issue without delay an order that all judges and prosecutors must relinquish membership in political parties within a specific period. All judges and prosecutors on the Khmer Rouge tribunal must take this step before they are entitled to serve on the panel. The Cambodian government and parliament, Bar Association and all political parties should offer full support and cooperation.
The AHRC also appeals to the governments of Japan, India, Australia, Canada, France, Germany, the United Kingdom, the Netherlands, Denmark, Austria, Sweden, Belgium, Norway, Ireland, New Zealand, South Korea and others that are funding the Khmer Rouge tribunal, including the European Union, to withdraw their support until this step is taken. These governments too must understand that they will do more harm than good to the Cambodian people by financing Khmer Rouge trials presided over by political appointees. They should likewise request the King and Supreme Council of Magistracy to issue an order for all judges and prosecutors to resign from party membership.
The AHRC further urges all Cambodian judges and prosecutors, beginning with those appointed to serve on the Khmer Rouge tribunal, to relinquish their party membership with or without such an order from the Supreme Council of Magistracy.
Finally, it calls on all agencies and persons working for the rule of law in Cambodia to support this call and demand that the foundations of a strong and effective judiciary be laid by the Khmer Rouge tribunal. Let us all insist that this golden opportunity be used to advance .
