Rocky road to Khmer Rouge trial

Rocky road to Khmer Rouge trial
By Guy De Launey
BBC News, Phnom Penh


The buildings that make up the Extraordinary Chambers in the Courts of
Cambodia, as the Khmer Rouge tribunal is officially known, are
situated in something of a suburban desert.


Staff and visitors have to drive way out past the airport to a
district that was not even part of Phnom Penh until the city
boundaries were specially re-drawn a couple of months ago.

As a result, lunchtime options are few and far between, and the staff
canteen is an important amenity.

It has also become an emblem of the problems which have plagued the
courts, caused divisions between local and international staff, and
threatened to derail the entire process.

At first the concession to operate the canteen was held by a cafe in
central Phnom Penh popular with wealthy expatriates.

While options like goat cheese salad went down well with the
international court officials, reports soon appeared that the local
staff were complaining they would "die in two days" if they were not
given something more to their taste.

Then a local caterer took over, and offerings such as snail curry
replaced the Western menu.

The international staff complained of food poisoning, and one told the
BBC that his stomach troubles only stopped when he started bringing a
packed lunch to work.

Disagreements

So now the Cambodian officials and their international counterparts
lunch apart. They also do much of their work separately, and have very
different views about how the trials should be conducted.

That much became clear at the end of November, when a plenary session
of judges that was called to approve the internal rules of the
tribunal descended into farce.

The participants could not even agree on who was eligible to vote, let
alone the issues they were supposed to be deciding.

Hopes of swift prosecutions promptly evaporated, replaced by fears for
the future of the tribunal.

There were many points of dispute, but the cause of the most rancour
was the role of foreign defence lawyers.

International officials have insisted that as foreign prosecutors and
judges will be taking part, defendants must have the right to retain
an overseas lawyer if they wish.

The Cambodian Bar Association has, equally forcefully, made it clear
that under local law only their members are allowed to represent
clients in court.

At the centre of the controversy is the British barrister who is the
principal defender at the tribunal, Rupert Skilbeck.

At 35, he is already a veteran of tribunals in Bosnia and Sierra
Leone, and he accepts the recent turmoil as part of the job.

"All the tribunals have had a difficult birth process. The tribunal in
Sierra Leone I think took 12 months to agree their internal rules, and
that was all with foreign judges.

"In Bosnia, where there was a hybrid tribunal, probably the process
closest to this one, the process of agreeing the legal process for the
court took about two or three years," Mr Skilbeck said.

"The balance between the foreigners and the locals has always been a
problem in these tribunals."

Government 'interference'

Mr Skilbeck seems an affable character, but critics within the courts
claim that he has antagonised the very people with whom he needed to
build bridges.

There have also been suggestions that some of the other international
officials have failed to understand that a less direct approach to
working relationships is required in South East Asia.


The split is so marked that referring to the "Cambodian side" and "the
international side", as people both within and outside the tribunal
do, seems entirely appropriate.

Walking down the corridors of the tribunal's administration building,
a visitor cannot help but notice the separate offices to the left and
right for local and international staff.

All the talk of sides makes it sound more like a football match than a
judicial process, but such a comparison just raises a smile from
Cambodian judge Mong Monichariya.

He insists that relations are cordial, and that differences of opinion
are inevitable when the aim is to produce an international-standard
tribunal within the Cambodian judicial system.

"The media publish information that the problems are caused by the
Cambodian judges, but that is not true. We have many issues to resolve
between the Cambodian judges and the international judges," he said.

"Cambodian judges need time to understand the international legal
system, and the international judges take time to understand the
Cambodian legal system."

Some observers, however, see the hand of the government behind the
delays.

They point out that several senior members of the current
administration were themselves once in the Khmer Rouge.

While there is little chance of ministers being charged, they could be
implicated by defendants or even called as witnesses.

The Center For Social Development, a non-governmental organisation
specialising in legal issues, has been monitoring events at the
tribunal.

Its executive director, Theary Seng, believes "there is no doubt that
the government is pulling strings".

"The trials will go ahead, but it may just be a minimum to appease the
international side. They have to delay so that all the senior Khmer
Rouge people who could name names will die out," she said.

Conciliatory noises

For the millions of Cambodians waiting to see justice, that is a
genuine concern.

Last year Ta Mok, the only senior member of the Khmer Rouge in
custody, died without delivering any kind of testimony.


The other likely candidates for prosecution are also elderly, and some
of them have been in ill health.

Time is also running short for the tribunal itself. The three-year
mandate began last July, and further delays would have a serious
impact on the ability of the legal officials to complete their work.

Perhaps with that in mind, both sides are making conciliatory noises.

They agree that significant progress has been made on resolving
differences, and say that meetings in March should iron out the
remaining concerns.

After all the setbacks, optimism will always be accompanied by a dose
of scepticism.

There is, however, one concrete sign that international relations at
the tribunal may be warming up: The catering service is, once again,
up for tender.

.