The United Nations faces a credibility test. For more than a decade, it has supported the Extraordinary Chambers in the Courts of Cambodia, or ECCC, a hybrid tribunal with national and international sides created to try “senior leaders” and others “most responsible” for atrocities of the Pol Pot regime, which enjoyed Chinese support.
The ECCC reflects a compromise between western powers that favored UN-led justice and a Beijing-backed Cambodian government keen to exercise primary control. The Cambodian government has repeatedly tested the UN’s resolve, interfering in the court’s work and stalling unwanted prosecutions. UN and donor officials have often glossed over the problem, eager to see the tribunal’s first two cases completed and protect their investments in Cambodia and the court.
However, the compromise between the UN and Cambodia is near its breaking point, as Cambodian Prime Minister Hun Sen refuses to execute arrest warrants issued by a UN-appointed judge. His intransigence, abetted by Chinese support and weak-kneed western responses, is a serious challenge to the UN system. Languid backing from key member states on legal standards at the ECCC may undercut the UN’s capacity to enforce standards on other ventures as well.
The ECCC was created over several years of negotiations starting in 1999. The US government first floated the idea of an international court like the Yugoslavia and Rwanda tribunals, but that proposal floundered. Many states were skeptical of international tribunals, and a Chinese veto loomed over any UN Security Council resolution that would have forced Hun Sen to submit to western-led trials of China’s former Khmer Rouge allies.
US officials thus floated the idea of a hybrid court – a concept Hun Sen embraced as a means to attract international aid and a stamp of legitimacy without losing control over the process. UN and Cambodian negotiators wrestled over which side would appoint a majority of judges and hold other key levers of influence.
Hun Sen dug in his heels, and eventually several donor states including Japan, France, Australia and the United States pressed UN Secretary-General Kofi Annan and his lawyers to compromise. Some officials – particularly in Washington – focused on advancing international criminal justice and saw UN compromise as the only viable path forward. Others saw support for a Cambodia-led process as a way to build or preserve influence in Phnom Penh and counter rising Chinese clout.
The result was a preponderantly Cambodian court highly susceptible to domestic political interference.
UN and Cambodian appointees agreed on the subjects of the court’s first two cases. The first featured Duch, former head of the infamous S-21 security center at Tuol Sleng, who was convicted of war crimes and crimes against humanity in 2010. The second involves two surviving senior Khmer Rouge leaders, Nuon Chea and Khieu Samphan, who were convicted of crimes against humanity in 2014 and are now being tried on additional charges.
Although problems have arisen during these cases – such as credible allegations of administrative corruption and refusal by some summoned Cambodian officials to appear – the Cambodian side has not tried to prevent the cases from proceeding to judgment. Hun Sen’s principal challenge to the process has been drawing a line on further prosecutions.
For several years, UN-appointed prosecutors have pushed for up to six additional suspects to be tried, but Hun Sen has pushed back. He argues that additional cases could reignite conflict and told UN Secretary-General Ban Ki-moon bluntly in 2010 that there would be no further trials.
Compliant Cambodian court officials have towed the government line. They argue that the additional suspects are not among those “most responsible” for crimes of the Khmer Rouge era, even though each stands accused of atrocities against thousands of victims.
Cambodian appointees have also impeded investigations, leading two international judges and several staff members to resign in protest. A government spokesman said UN officials could “pack their bags” if they disagreed with the government’s position. In March 2015, after a UN-appointed judge charged three of the additional suspects, Hun Sen warned that the court has gone “almost beyond the limit of his tolerance.” The government has refused to execute the arrest warrants.
In February, Hun Sen repeated his refrain that additional cases could push some people “back to the jungles,” asking, “How many people will die if war comes again?” However, there is little evident basis for such fears. The Khmer Rouge expired long ago as a fighting force, and the ECCC trials have caused no breach of the peace.
The main apparent motive for Cambodian obstruction is to maintain political control over the process. The current government, led by Hun Sen’s Cambodian People’s Party, CPP, includes former Khmer Rouge members at the highest levels. Hun Sen himself was a low-level Khmer Rouge cadre before fleeing to Vietnam and helping organize the resistance movement that ousted Pol Pot in 1979. Other members later obtained official posts as enticements to defect from the insurgency they waged during the 1980s and 1990s. A wide prosecutorial net could thus threaten the CPP.
The trials could also embarrass China, the main patron of the Pol Pot regime and principal backer of the CPP today. China’s economic aid and political support help sustain the Hun Sen government, making CPP leaders more loath to offend Beijing and confident defying other powers.
Although UN participation in the ECCC was meant to help ensure international standards, the UN and donor states have responded weakly to repeated Cambodian interference. UN officials have issued statements of “serious concern,” but have said more than once that they would not investigate allegations of political interference. The government’s current refusal to execute arrest warrants has brought a chorus of civil society criticism, with the Open Society Justice Initiative calling the UN’s failure to address the matter “even more appalling” than government obstruction.
Nevertheless, donors including the United States, France and Britain have reaffirmed support for the court. Japan continues to furnish a financial lifeline with few questions asked, and the German ambassador has said, “While any form of political interference in ongoing court procedures is unacceptable, withdrawing support for the court would be the wrong signal.”
From the outset, the major states that pushed the United Nations into a difficult marriage with the Cambodian government have failed to invest enough political capital to defend the ECCC’s transparency and independence. This partly reflects a fear that pressing too hard would jeopardize the court’s first two cases – especially the centerpiece case against senior leaders Nuon Chea and Khieu Samphan.
That concern, while legitimate, carries little weight now that the two senior leaders have been convicted. An unspoken reason for donor passivity is loathness to antagonize the Hun Sen government and drive it further into China’s embrace. The Cambodian case thus highlights the special challenge of mounting effective UN operations where China’s rise prompts the western states and Japan to treat difficult partner governments with kid gloves.
The UN and major ECCC donors need to take a strong public stand against political interference at the ECCC, stating clearly that without a prompt correction, funds to the court will cease to flow, and the Hun Sen government will be held responsible. Such a stand would doubtlessly ruffle feathers in Phnom Penh and may entail short-term diplomatic costs, but those are risks worth bearing. At stake is not only the long-delayed justice for the Cambodian people and the ECCC’s legacy, but also the UN’s broader credibility in upholding international standards.
John D. Ciorciari is an assistant professor at the Gerald R. Ford School of Public Policy at the University of Michigan. This was written for the Yale University Center for the Study of Globalization