Ten months later the United Nations General Assembly, the entire world body, stepped into the debate and rescinded Kofi Annan’s previous order when it passed a resolution directing “the Secretary-General to resume negotiations, without delay, to conclude an agreement with the Government of Cambodia, based on previous negotiations, on the establishment of the Extraordinary Chambers to try those suspected of being responsible for the atrocities committed by the Khmer Rouge.” Too many nations, including the United States, were unhappy with Annan’s decision.
Soon enough, Cambodia and the UN agreed to establish a hybrid court with both Cambodian and international judges and prosecutors. They called it the Extraordinary Chamber in the Courts of Cambodia, to differentiate it from Cambodia’s much-maligned court system. David Scheffer, the U.S. ambassador at large for war-crimes issues, visited Cambodia and came up with the idea that made the negotiations succeed. Under Scheffer’s plan, a majority of the trial judges could be Cambodian. But no decision could be reached unless at least one international judge agreed to it, too. Scheffer called that a “supermajority,” and that formula broke the logjam. “I’m afraid there was no magical historical reflection or precedent that brought it to mind,” Scheffer said later. “I simply tried to figure out how to manage a Cambodian majority on the bench and determined that requiring the vote of at least one international judge could establish the minimum threshold of international oversight.” One analogy, he added, “deeply influenced my thinking—the requirement for unanimous jury verdicts in commonlaw criminal trials. Why shouldn’t a ruling in a criminal trial require more than a bare majority of judges’ votes, when our American criminal trials require all twelve jurors to render ‘guilty’ verdicts before a defendant in fact is found guilty?” Thanks to Scheffer’s efforts, in 2003,
after six years of acrimonious discussion, Cambodia and the United Nations finally agreed on a formula for trying the murderous leaders of the Khmer Rouge regime.
Anticipation was keen, expectations grandiose. “For Cambodia, this will fill a blank page,” said Khieu Kanharith, the information minister. “It shows you cannot kill on orders from your bosses.” That sounded odd from him, given the long list of government-ordered assassinations. But sometimes, just sometimes, government officials seemed to step partway out of their roles and express genuine hopes for a cleaner, gentler state, one that actually cared for its people. Even so, they stepped only partway out because they knew that in such a state, they would be a lot poorer. Even advocating that outcome could cost a job—and conceivably even a life.
Wiedemann, the ambassador, viewed the trial as a way “to salve the wounds, close the chapter, to recognize the suffering in Cambodia and show that the international community will not allow it to happen again.” The State Department, he added, “believed quite strongly that it would inculcate a tradition of justice in Cambodia. The legal system had profound shortcomings, and if the tribunal was run on international standards, that would serve as an object lesson and bring the Cambodians along.” For its part, the United Nations said the trial would demonstrate once and for all that in Cambodia, “there can be no impunity for violations of human rights.”
Authorities finally arrested Ieng Sary on November 12, 2007, and took him to a holding cell in a converted military facility on the outskirts of town. It was being renovated, outfitted as a high-profile courthouse. Joining him there were his wife, Ieng Thirith, the Khmer Rouge minister of social affairs; Kaing Guek Eav, who was commander of the Tuol Sleng jail, where 15,000 Cambodians died; and two other senior leaders, Nuon Chea and Khieu Samphan.
Three years after the 2003 agreement to stage the trial, David Tolbert, a UN lawyer working at the International Criminal Tribunal for the former Yugoslavia, got a call. Could he please go to Cambodia and try
to straighten out the war-crimes courtroom there? Nothing was moving. The court was stuck. Tolbert was a tall, garrulous North Carolinian with long, straight yellow-blond hair. He had an easy smile but a world-weary manner. His job took him into the heart of the world’s worst genocidal moments. And now he was to bring that experience to Cambodia. There, the problems were altogether different.
The court had been organizing itself for several years now, but when Tolbert arrived, “it had no administrative leadership, particularly with respect to court management, including translation and interpretation and the witness-protection program. The international side had essentially given over judicial management to the Cambodian side.” But “there was really very little judicial management in place. The Cambodian staff in charge had virtually no knowledge or experience, as most had no judicial background. And yet there were a large number of them,” hundreds in fact. “There was no way the court could stage a trial at that point.”
Tolbert spent a few weeks drawing up a series of recommendations to get the process moving. Then he returned to Yugoslavia. Almost a year later he got a call from a court employee in Phnom Penh. You suggested a new staff position, the employee said. Could you please send a job description? Tolbert realized: The place was still moribund.
In 2008 UN Secretary-General Ban Ki-moon appointed Tolbert as a special expert, an assistant secretary-general, to try one more time. He quickly found that five years after the agreement to set up the court, “very little progress had been made. I proposed reducing the budget by 35 percent. The staff was bloated. They had fifteen gardeners, which looked like a job-creation program to me.” So he pursued four specific goals: “Financial stability. Giving donors confidence in the budget. Providing the administrative staff a new direction. And addressing corruption.”
Yes, once again corruption had reared its head. Cambodian staff members were being forced to give up 30 percent of their salaries to
their bosses. The delays and corruption allegations were demoralizing for the few Cambodians who knew about the court. They began giving up on the lofty hopes they had placed on this trial. But one poll in 2008 found that 85 percent of the population didn’t even know the trials were under way. That was not so surprising. Given that Cambodia was managing court administration, no one even thought about informing the public. Cambodian public institutions were notoriously closed and secretive, better to hide the graft and indolence.
Over the years that Hun Sen battled the United Nations over the trial, by all accounts his overriding concern was control. He wanted to make sure that the UN did not set up an autonomous body inside his country that he could not manipulate to protect himself and his fellow former Khmer Rouge friends. But as he and the rest of the world soon discovered, the Khmer Rouge trial presented a new and different liability for Cambodia’s leaders. It exposed Cambodia’s way of doing business—incompetent, rapacious, corrupt—to everyone in the world. Half of the court was staffed by foreigners, UN employees and others, mostly from Western nations. People like Tolbert. Cambodian business as usual, generally practiced behind locked doors, was now exposed for the world to see—like a dollhouse with no back wall. The scene inside wasn’t pretty.
Heather Ryan arrived in Phnom Penh in 2005 to serve as a court monitor for the Open Society Institute, George Soros’s human-rights NGO. She, too, was a lawyer, and independently of Tolbert, she came to conclusions similar to his.
The Cambodian operation just wasn’t competent. The nation didn’t have a real court system, just a collection of courtrooms staffed by lawyers and judges who had bribed their way through school, bought their positions in court, and ruled by bribe, fiat—or orders from above. They just didn’t seem to understand or appreciate the law. As an example, in Ratanakiri Province, police impounded a pickup truck that had been used in a robbery and double murder. It was to be
held as evidence. But then provincial court judge Thor Saran decided he liked the truck, picked up the keys, and drove it home. He kept it for more than a year. After a human-rights group complained, saying, “normally, evidence is kept in its original form to be shown in court,” the Justice Ministry investigated and then cleared the judge.
When Cambodian jurists were paired with Western lawyers and judges, the disparities were glaring. For example, Ryan said, “interviewing witnesses—they’re just not good at it.” Legal interviews, like police or journalists’ interviews, have to be informal and unthreatening so that the subject relaxes and feels comfortable talking. Well, the Cambodians, Ryan said, “call the village chief and tell them to contact the witness and set things up. Way too formal. And then they show up in a white car, four or five people,” and pile out, a troop of officiallooking people, there to do an interview.
Then in 2007 Ryan uncovered the kickback scheme. “We spoke to lots of staff members; they had come to us anonymously.” They told her that the Cambodian staff director, Sean Visoth, was the ringleader ordering and directing the 30 percent kickback system—netting $30,000 to $40,000 a month, local media reported. He, in turn, had to turn most of the proceeds over to the people in government who had appointed him to this rich position.
Cambodia reacted as it always does. Officials attacked Ryan. Sok An, the deputy prime minister, declared that she could never again set foot in the courthouse. She had observed that foreigners working at the court did not really understand Cambodia. As it turned out, she didn’t entirely understand Cambodians, either. With surprise and exasperation, she complained, “All I did was call for an investigation. But instead, it became simply a debate over our allegations”—and about her. She was learning the immutable rule of Cambodian behavior. If accused, a Cambodian generally will not respond to the accusations. Instead, he will attack the accuser.
The court’s Cambodian judges, who more than likely had to kick back part of their own salaries, took umbrage at Ryan’s allegations and issued a statement saying Ryan needed to “correct by appropriate
means this unsubstantiated allegation” because it “created public confusion and seriously undermined the reputation and integrity of all national judges appointed to the tribunal.”
Those judges didn’t have much of a reputation to begin with. For example, Human Rights Watch said Kong Srim, the chief judge, “developed a reputation for handling cases in a political manner rather than according to the law and the facts. He prosecuted suspects in absentia, played a key role in the release of Hun Sen’s nephew, Nhim Sophea, against whom there was compelling evidence of murder, and was crucial in engineering the imposition of the deputy prime minister’s own candidate, Ky Tech, to be president of the Cambodian Bar Association.”
Needless to say, hardly anyone doubted that the corruption charges were true. In fact, Ryan said some of her donor friends told her, “This is Cambodia. What do you expect? Back off.” A short time later the court dismissed Sean Visoth’s deputy. A “red herring,” Ryan said.
Nonetheless, the new charges roiled the court. Donations to support the trial dropped off. Defendants’ attorneys began filing motions saying their clients could not get a fair trial in a corrupt court. And those Cambodians who were paying attention grew even more disillusioned. The
Phnom Penh Post
noted that “feelings of hopelessness and a sense of mistrust came to the fore” at a 2008 forum staged by Theary Seng’s NGO. “A significant number of participants expressed growing disillusionment because of delays and a lack of information about what the court personnel are doing.”
To quell the growing anger, Sean Visoth appointed corruption monitors: Chief Judge Kong Srim and Helen Jarvis, a middle-aged Australian woman, a former librarian, who was a longtime Cambodian government hanger-on then serving as a public affairs officer at the court. Neither of them would threaten Visoth’s reign over patronage and graft. Right away court watchers labeled them the foxes guarding the henhouse.
While the court’s administrative side slowly disintegrated in acrimonious finger-pointing, the legal side actually filed charges and brought
the first defendant to court: Kaing Guek Eav, the commander of the Tuol Sleng torture chamber. He was known as Duch, pronounced “Doik.” Police took him into custody in 1999. He claimed to have been an evangelical Christian since 1979 and had told interviewers he welcomed the chance at repentance. On July 31, 2007, he got his wish.
The court charged him with crimes against humanity. Researchers had found his written directives ordering the executions of scores of victims, generally people viewed as enemies of the revolution. Through torture, guards forced them to confess to fantastic crimes. Once they had confessed, they were executed, whacked on the back of the head with a club, and then thrown into a mass grave. At Tuol Sleng 15,000 people were believed to have died that way. But years would pass before Duch’s trial would begin.
Meantime, in 2008 the United Nations validated Heather Ryan’s corruption allegations, saying it had received significant evidence of its own. The UN withheld funding for the trial until the allegations were settled. UN investigators had found what one official called “prima facie” evidence that Sean Visoth, the Cambodian-staff director, was also the corruption ringleader. Tolbert became the first in a parade of UN officials sent to Phnom Penh to negotiate a way out of this typically Cambodian impasse.
Tolbert’s job was to convince Deputy Prime Minister Sok An that Sean Visoth had to be removed from his job. Sok An could be a nasty fellow, drunk with money, power, and self-importance. He was the one who lived in the 60,000-square-foot chalet. He was also fat, an embodiment of the Cambodian paradigm that only senior government officials, like the kings of yore, got more than enough to eat. Some UN officials had a nickname for Sok An. Privately they called him Jabba the Hutt, the hideously obese figure in the
Star Wars
movies.
At first, Sok An refused to see Tolbert. In time, he got an appointment, and when Tolbert finally walked into the deputy prime minister’s office Sok An was cold. “It was a very difficult meeting,” Tolbert said. “He of all people lectured me on due process.” Tolbert pushed him to fire the man responsible for the graft problem. Sok An resisted,
“but I pushed hard.” Finally, Sok An told him he would take care of the problem “at the appropriate time.” Tolbert went home, and a few months later Sean Visoth left his job on sick leave. He never returned, but that did not clear up the problem.