Open Society Institute's Director James Goldston: "A Sword of Damocles [Hanging] Over the [ECCC] Operations", 7 March, 2007

Letter to the Editor on Corruption Charges at Khmer Rouge Court
By James Goldston, executive director of the Open Society Justice Initiative
Since 2003, the Open Society Justice Initiative has spent hundreds of hours and tens of thousands of dollars assisting in the establishment and successful functioning of the Extraordinary Chambers in the Court of Cambodia (ECCC), the mixed domestic/international tribunal launched last year to try the surviving leaders of the Khmer Rouge. We urged donors to fund the court. We have argued that critics who refused to cooperate with the court were premature in their condemnation. We have provided expertise and advice to court officials on everything from fund-raising and interpretation to witness protection and evidence gathering.
Last month, we ruffled some feathers by calling for a thorough investigation into widespread allegations of corruption at the ECCC. Strange though it may seem, our aim remains to help the court - by bringing to light a dirty little secret that hangs like a sword of Damocles over its operations. As a human rights monitoring organization, it is our duty to bring these issues to light - but we are not in a position to investigate them in the depth and detail they require. This is the responsibility of the Court, and the parties to the ECCC Agreement. We will continue to monitor the work of the Court.
The allegations of corruption are just that - allegations. But they cannot be ignored. First, they come from a wide range of sources both inside and outside the court. Second, they are remarkably consistent in describing a pattern of kickbacks - a fixed percentage of salaries - paid by Cambodian court staff to those in government who appointed them. Third, they directly undermine the court's most precious resource, public trust. For these reasons, they merit investigation.
Troubling as these charges are, they come at a critical moment in the ECCC's short life. The product of nearly a decade of on-again, off-again negotiations between the UN and the Cambodian government, the tribunal has faced enormous challenges since its birth. Far more than other "hybrid" tribunals established to redress atrocities in the aftermath of conflict, the Extraordinary Chambers reflects the challenges of the domestic legal system in which it sits - including a tradition of political intervention in the judicial process.
Recent developments have confirmed the fears of skeptics. Since November, despite several attempts, the judges have failed to agree on rules of procedure, a prerequisite for trials to go ahead. Last fall, in a misguided effort to preserve monopoly control over the provision of legal defense, the Cambodian bar association scuttled a training of attorneys by a respected international organization.
Some see in these events the hand of political officials whose commitment to genuine prosecution and due process has long been in doubt. They may be right.
But the international community, which has funded most of the ECCC's $56.3 million budget, also bears responsibility. For years, donor governments have ignored the misuse, if not outright theft, of vast sums in international development aid to Cambodia. If the Extraordinary Chambers is to have any credibility, this practice of conscious avoidance must end.
If promptly confronted, these newest questions offer an opportunity to show that impartial, independent and honest justice is possible in Cambodia. Corruption is hardly unknown to criminal tribunals. Even the new generation of international courts trying crimes against humanity has experienced its share of taint. In their early years, both UN courts created to prosecute abuses in, respectively, the former Yugoslavia and Rwanda, were marred by reports of corruption. But by quickly owning up to the problems, and then swiftly and decisively addressing them, the courts gained renewed respect.
To its credit, the United Nations Development Program, which administers much of the donor funding for the ECCC, has commissioned an internal audit to examine the court's human resource management. The covert nature of corruption, and the real danger for any Cambodian publicly associated with accusations of government misconduct, pose major challenges to any investigation.
Still, a number of steps should be taken no matter how conclusive the ultimate findings. These include ensuring greater transparency in hiring procedures and human resource management; creating a "whistleblower" mechanism with both incentives and protection for witnesses to alert all parties of corruption concerns; and placing a full-time financial monitor within the ECCC, reporting publicly on a regular basis to the Cambodian government, the United Nations, and the Group of Interested States, which informally oversees the court's work.
Corruption is a sensitive matter. But that is all the more reason to deal with it. This is important for Cambodia, which urgently needs sound governance and revenue transparency policies following the discovery of oil and natural gas in its territorial waters. It is essential for the cause of international justice, which requires public confidence to fulfill its mission of ending impunity for mass crimes. And it is necessary for the ECCC and the two million victims of Khmer Rouge genocide, whose loved ones have waited far too long for the prospect of accountability now to be swept under the rug.