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PHNOM PENH, Jul 8 2008 (IPS) - After a complicated and sometimes fraught process of establishment lasting over two years, the international tribunal into the crimes committed by the Khmer Rouge may commence trials as early as September.
The consensus is that as day-to-day head of the Tuol Sleng facility Duch’s culpability is clear, making his a fairly open-and-shut case.
Although tribunal staff caution it is hard to predict time frames, Duch’s trial is expected to run through the remainder of 2008 and possibly into early 2009.
The tribunal will then try the remaining four: Noun Chea or ‘Brother No 2’ as he was known in the Khmer Rouge hierarchy, former Democratic Kampuchea head of state Khieu Samphan, former foreign minister leng Sary, and his wife leng Thirith, the regime’s minister of social action.
"Although nothing has been decided it seems more likely they will be tried as a group," said tribunal public affairs chief Helen Jarvis. "They are being charged with policy level crimes they are all accused of being involved in."
The start of trials will go a long way to defusing ongoing criticisms particularly from Cambodians that the tribunal is too slow and unnecessarily bureaucratic.
Such criticisms have increased pressure on the tribunal to get the trials underway at the same time ensuring a fair and impartial process and being careful not to characterise the five defendants’ exercise of their right to appeal as ‘delays’.
The health of the five defendants is another pressure. All are old and many Cambodians fear they could die before they face justice.
"No one is ignoring it [the delays], but the problem is how to break through without losing the integrity of the judicial process," responded Jarvis.
"The lawyers talk about the international standard," said Youk Chhang, head of the Documentation Centre in Phnom Penh, a local non-governmental organisation (NGO) dedicated to studying and documenting the Khmer Rouge’s three and a half year rule.
"You might apply this in Bosnia where there is hostility from the local population and difficulty in accessing the accused. But here it is different. There is support from local people. You have all the evidence."
"This is not about the UN’s reputation. It is about the million of lives lost. It is about people wanting justice after 30 years."
"In comparison with other [war crimes] courts, by any measure we are making great progress," maintained Jarvis. "If anything, there is a certain picture of doom being painted from outside but I don’t feel that from inside."
Many observers, local and international, agree the tribunal has made considerable progress given the challenge of holding trials of this size and complexity in Cambodia rather than in a third country, as was initially demanded by the UN as a condition for its assistance.
The tribunal is a special chamber within the Cambodian court system. It comprises local and international judges and mainly uses Cambodia’s underdeveloped system of civil law.
"This is one reason everything takes so long," said Rupert Skilbeck, head of the tribunal’s Defence Support Section. "There is no clear legal process in Cambodia even for relatively simple cases, let alone for complex ones [like this]."
Many hope situating the court in Cambodia will result in a flow-on effect in terms of improvements to Cambodia’s legal process.
"We must have more objectives than just the trial of the Khmer Rouge leaders," said Sok Sam Ouen, head of the Cambodian Defenders Project, a legal aid NGO. "We need a model for a new court. Future leaders also need to be warned there is justice in Cambodia."
However, international human rights groups remain concerned the country’s underdeveloped judiciary and endemic levels of corruption could negatively influence the proceedings.
The clearest example of this, these groups claim, were allegations of serious flaws in hiring and other personnel practices, including even senior staff having to kickback part of their salaries to unnamed individuals.
Although a UN audit of the tribunal found no "conclusive evidence" of kickbacks, the allegations continue to dog the tribunal and, until recently, have been a barrier to donor funding.
"It is not a matter of whether corruption is bad," said Sara Colm, a Phnom Penh based senior researcher with Human Rights Watch. "The possibility that there is corruption in the court opens the door to political manipulation for what should be a squeaky clean process."
"The allegations were unspecified, unsourced and unsubstantiated and they remain so nearly two years down the track," is Jarvis’s response. "Some criticisms were made about aspects of the tribunal’s management. We have embraced these unreservedly and have made changes.
Although staff maintain that everything is on track for a September trial, the tribunal faces other challenges, including a financial shortfall of nearly 44 million US dollars under a revised budget that nearly doubles the amount of money sought from donors and the Cambodian government.
The tribunal’s administrators say they are confident of securing the funding.
The tribunal, held in Khmer, English and French, is struggling to deal with a major backlog of translation work.
"The problem is the sheer volume of information the prosecution has relied on that has not been translated," said Skilbeck. "If it is important enough to be used in the trial the defence lawyers should know what it says."
It is particularly acute in relation to material being translated from Khmer to French, a major issue for the Francophone legal teams representing Duch and Khieu Samphan.
"Only one per cent of the material they need has been translated into French," he said. "There is a real concern it could delay the trial."
Concerns have also been expressed about the tribunal’s procedures for witness protection, which Colm maintains are "very faulty".
"The UN takes care of witnesses while they are in the compound," she said. "Outside, it is under the control of the ministry of interior judicial police who are rights abusers themselves."
"We have in place a Witness and Expert Support Unit and take this issue very seriously," said Jarvis,
"Although the nature of the work limits what we can say in public about this, we can say it is more than just physical protection. It includes financial and legal support and counselling."
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