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.