Budget Hinged on Prosecutorial Discretion or Administrative Calculations Based upon a Limited Scope of Prosecutions?

The Office of Administration of the ECCC was recently quoted as saying that the budget for which funding is currently sought is tailored for the 5 detainees currently held by the ECCC. This was contrasted with the international Co-Prosecutor's statement that no decision had been made about whether to build cases against other suspects and how many more suspect we should be expecting. An Open Society Justice Initiative (OSJI) representative referred to 'prosecutorial discretion', which she argued would be undermined, if budgetary matters were allowed to interfere with the Co-Prosecutors' authority to initiate as many cases as they deemed necessary. True as this statement might be for domestic jurisdictions, it is difficult to see how it has any bearing on the process at hand. To unpack this, it is instructive to think of the fact that most criminal domestic jurisdictions run on the particular jurisdiction's tax payers' money. Prosecutors -- in the United States, for example, -- are publicly elected officials who can be removed by the very public which is paying its dollars to keep said prosecutors in office. The general public, therefore, at election, exercises a meaningful check on the prosecutorial discretion in the US. If the public feels that prosecutions have gone awry during the tenure of a particular prosecutor, s/he is not likely to be re-elected. This is not at all the case in Cambodia, particularly when it comes to the ECCC. Cambodia, thus far, has contributed about zero dollars to the ECCC and has limited itself to providing the building to house the court, which is the least any country could have done. The Cambodian public has about zero ability to exercise any type of check -- meaningful or otherwise -- on the discretion of the ECCC Co-Prosecutors, who are not elected but instead were appointed by the UN and the RGC through the processes the nature and content of which are unknown to the public. In case the Cambodian public -- the small component of which follows the process in question -- decides to express its lack of appreciation of the choices made by the Co-Prosecutors, there is absolutely no way they will be able to have their voice heard. Ergo, when we talk about 'prosecutorial discretion' and its bredth, we must acknowledge that the ECCC Co-Prosecutors have absolute discretion completely unchecked by the Cambodian public.

With this in mind, the only check on the ECCC's prosecutorial powers -- besides that of the Co-Investigating Judges -- are those of the public of the donor countries which exercises a certain measure of control over their parliamentarians/congresspersons who, in turn, exercise control over the nation's financial allocations. If a particular donor state, therefore, loses its belief in the ECCC process, for whatever reason, it can effectively demonstrate their opinion by discontinuing the funding of the tribunal.

Considering the above, it is insightful to examine the Co-Prosecutors' statement that they would not ignore evidence because of prevailing budgetary considerations. Quixotic as it might sound, anyone who is close enough to the process to know that evidence of probative value exists against thousands of people who might fall under 'those most responsible', particularly considering that the term is not defined by the law which established the ECCC. Since there is no question that such probative value evidence exists, the only question there is is how deep the Co-Prosecutors are willing to go and how, with no judicial guidance on the matter, they will define 'those most responsible' and try to sell that definition to the Co-Investigating Judges. If budgetary considerations are allowed to be high-handed by the prosecutorial discretion, the international public that so far has been paying for this process might find itself being in for a long, long haul without even realizing it, and the voices of the Cambodian public will not be heard, besides the Cambodian voices we have been hearing up to now and who have, in one way or another, built their careers around the tribunal.