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Monday, December 15, 2008

Justice, Interrupted

Cambodia's Khmer Rouge tribunal risks becoming a sham.

By JAMES A. GOLDSTON

No court can be considered legitimate if its judges and prosecutors submit to political diktat. Tragically, the United Nations-backed court in Phnom Penh investigating and prosecuting those most responsible for the Khmer Rouge's crimes in Cambodia is at risk of doing just that.

The Court, called the Extraordinary Chambers in the Courts of Cambodia, has indicted a mere five people for the murder of close to two million between 1975 and 1979. Last week, the court's international co-prosecutor, Robert Petit, proposed that an undisclosed number of additional suspects be formally investigated -- a prelude to indictment. According to a Dec. 8 press release from Mr. Petit's office, his local counterpart, co-prosecutor Chea Lang, opposed the move. Because the process for resolving disputes between prosecutors is confidential, Ms. Lang's reasons for opposing additional investigations are unknown.

Mr. Petit has filed a formal "statement of disagreement" indicating his commitment to press ahead with additional charges. Under the Court's complicated structure, he can do this if authorized by the pre-trial chamber, an organ of the Court responsible for overseeing proceedings prior to trial and resolving disputes between co-prosecutors and co-judges. Prime Minister Hun Sen has in the past suggested that trying "four or five" people would be enough. Although most Cambodian officials today say that the government would not limit the number of people charged, the attitude persists that trying more people might be detrimental or destabilizing. Absent agreement between the two co-prosecutors, the Court's judges will be asked to resolve the dispute.

If ever there was a moment to show that the Court is not a tool of the Cambodian government, this is it. Unfortunately, court rules provide that this issue must be addressed out of public view. All should understand, however, that the court's very legitimacy to Cambodians and the international community is at stake. The Court must operate as transparently as possible in the coming days.

That will be difficult, given that the Court is the product of 10 years of negotiation between the U.N. and the Cambodian government. As a hybrid court, it has an awkward structure. The international and domestic co-prosecutors and co-investigating judges must agree before proceeding on major decisions. Where consensus cannot be achieved, a "super-majority" composed of at least one international judge is required for most significant action. This fragile arrangement has given rise to much skepticism about the Court's capacity to reverse a long Cambodian history of improper interference in judicial operations.

In the past year, too, serious allegations of corrupt employment practices on the Cambodian side of the court have emerged. The U.N. investigated the matter in September, but did not release its findings. A pervasive lack of openness at the Court has not helped. This is an especially serious situation as any forthcoming judgments will be potentially vulnerable to crippling legal challenges.

Yet the Court's greatest challenge by far is the new roadblock preventing further prosecutions. It has long been suggested that the limitation of charges to the five accused -- all former Khmer Rouge members, unconnected to any current senior government figures -- was a central part of the "unwritten bargain" that led the government to accept the Court. A number of senior figures in the current government apparently fear the potential consequences of establishing a model of transparency and accountability that might be applied more generally. Given the scale of the crimes and the breadth of criminal responsibility, any judicial process that arbitrarily narrows its focus to only those individuals would be a sham.

It is time for the donor governments that support the Court -- including Japan, France and the U.S., which recently pledged its first contribution -- to insist that the Court operate as a court of law. Anything less would be a betrayal of the memory of two million dead and numerous others who endured physical and psychological wounds. Both the victims of the Khmer Rouge and the next generation of Cambodians deserve an honest, judicial accounting of one of the worst atrocities of the 20th century.

Mr. Goldston is the executive director of the Open Society Justice Initiative, which provided advice and technical assistance during some early stages of the tribunal.


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Association of South East Asian Nations Enacts New Charter

By Katie Hamann

The charter of the Association of South East Asian Nations now has official status, binding members to an enhanced legal framework. But as Asia begins to experience the full force of the global economic crisis it may be some time before the grouping begins to operate as a European Union-style community.

More than four decades after it came into being the Association of South East Nations on Monday become a legal entity and perhaps a new force for unity for its 10 members.

Speaking at a meeting of ASEAN foreign ministers, Indonesia's President Susilo Bambang Yudhoyono called the charter's ratification a momentous moment, signaling the transformation of ASEAN.

"The charter can be the basis for speeding up and strengthening our regional interfaces. By virtue of its provisions we can enhance the process by which we are transforming ASEAN from a loose association to an ASEAN community, resting on the pillars of political security cooperation, economic cooperation and socio-cultural cooperation," said Mr. Yudhoyono.

The charter includes commitments to the principles of democracy, the rule of law and good governance and respect for and promotion of human rights.

ASEAN's members are Brunei, Burma, Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand and Vietnam.

They are home to half a billion people. In terms of development, they range from wealthy modern Singapore and Brunei to impoverished, agrarian Laos and Cambodia. Politically, members include democratic Philippines and Indonesia, and military-ruled Burma.

ASEAN's Secretary-General Surin Pitsuwan says that all members have work to do on the charter's commitments.

"Democracy, it's a yo-yo in the system, it's a yo-yo in the region. Some countries used to be ahead of others, now they are behind. They are all in the process of transforming themselves to become more open, more participatory, more democratic. None of them is perfect," he said.

The charter was to have been inaugurated at the annual ASEAN summit in Thailand this month, but a political crisis there forced its postponement. Monday's meeting at the Jakarta secretariat was convened specially to enact the charter.

The charter opens the door to a single ASEAN market within seven years. However, the unfolding global economic crisis may yet block that goal. There are fears that the crisis may slow efforts to negotiate the free trade agreement.

ASEAN has also come under attack for failing to address human rights abuses by its member, particularly in military-ruled Burma.

Political analysts say the group will likely stick to its tradition of not interfering in each other's affairs.

But Secretary-General Surin says human rights advocates now have a legal document to add weight to their claims.

"And those of you out there who are interested in the issue of human rights can always make noise referring to this document. It has to begin somewhere, rooms for improvement. But to say this piece of paper, this document is worth nothing is not true," added Surin.

The postponed ASEAN summit is now planned for next February or March.

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Cambodian King meets with senior Chinese legislator

PHNOM PENH, Cambodian King Norodom Sihamoni here on Monday met with visiting Chen Zhili, vice chairperson of the Standing Committee of National People's Congress (NPC), China's top legislative body.

Sihamoni highly praised the achievements of China's 30 years of reform and opening-up, as well as the developments of bilateral relations.

The Cambodian royal family has been committing to strengthen Cambodia-China relations, Sihamoni said, adding that the friendship between the two countries is increasingly striking root in the hearts of the people.

The royal family, the Cambodian government and people appreciate the precious supports and aids provided by the Chinese government and people for Cambodia's national construction, he said.

Cambodia will work together with China to advance bilateral relationship unceasingly, he added.

Sihamoni reaffirmed that the royal family, the Cambodian parliament, government and people would adhere to the one-China policy and support the great cause of peaceful reunification of China.

For her part, Chen said that in the past 50 years since the establishment of diplomatic ties between China and Cambodia, the friendly relations jointly created by leaders of the two countries have sustained the fierce test of international drastic changes, and keeps consolidated and developed, becoming valuable treasure of the two sides.

She said that the comprehensive cooperative partnership between China and Cambodia is enjoying sound development, which serves the fundamental interests of both sides.

She believed that with joint efforts, China and Cambodia will advance the cooperative partnership to a new high.

Chen also said the Chinese NPC would like to strengthen cooperation and exchanges with the Cambodian National Assembly and Senate, so as to contribute to the bilateral relations.

Chen is on a five-day visit to Cambodia starting last Friday.

During this visit, she also met with Cambodian Senate President Chea Sim, National Assembly President Heng Samrin and other senior officials.
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