PHNOM PENH, CAMBODIA
Thirty years after causing the deaths of roughly 1.7 million people in Cambodia, all but one of the surviving leaders of the murderous Khmer Rouge regime remain at large. Many of them have spacious villas in Phnom Penh and travel regularly to Thailand for medical checkups, both signs of unusual prosperity in this impoverished nation.
The advance of international criminal justice, which began with Nuremberg and has grown since the end of the cold war, with courts in the former Yugoslavia, Rwanda, and Sierra Leone, to name a few, was meant to bring an end to this kind of impunity.
But as the trials for the Khmer Rouge's aging leadership stalled once again on Friday, it seemed to the court's critics that impunity was poised to win the day. Many international observers say that the Cambodian government's repeated attempts to scuttle the trial have frustrated the UN-appointed foreign judges, who have said that they would sooner leave than participate in a show trial.
Now, Marcel Lemonde, the international co-investigating judge, says April is the new ultimatum for when the international judges will withdraw if the trial is delayed further. The extension gives victims' families and human rights groups another shot at a fair, public trial.
"This is a nonnegotiable issue," says Mr. Lemonde. "It is not possible for international judges to participate in a trial that is not a fair trial."
Last Friday, judges from the Extraordinary Chambers in the Courts of Cambodia (ECCC) – the court set up in 2003 to try Khmer Rouge leaders – ended two weeks of tense debate on procedural rules at an impasse. Without these rules, which govern everything from defense lawyers to trial chamber design, the long-delayed trial cannot begin.
The court first tried, but failed, to adopt the rules in November. On Friday, the committee agreed to reconvene in early March to continue deliberations, before bringing the rules to a full plenary of judges for a vote. If the judges go, the United Nations itself could follow. In 2003, then UN Secretary-General Kofi Annan was skeptical enough about the quality of the Cambodian judiciary and the Cambodian government's intentions to include an escape clause in the agreement that established the ECCC: The UN can abandon the process if the tribunal does not meet acceptable standards.
To be sure, progress has been made on the rules. More than two dozen outstanding issues have been whittled down to about two, says one person close to the negotiations. But the remaining disagreements touch the very heart of international justice: defense.
Cambodian judges and the Cambodian Bar Association, which are widely perceived to be beholden to top government leaders, have sought to restrict and control the participation of foreign defense lawyers in the court. International judges and human rights groups, however, say that a competent, independent defense counsel is the bedrock of a fair trial. By Friday, both Cambodian and international judges had agreed in principle that foreign lawyers would be allowed to appear before the court, but crucial details of their participation remain unresolved, people close to the negotiations say.
Local human rights groups condemned this latest delay as further evidence of political malfeasance on the part of the Cambodian government, which they charge is loath to cede control over a legal process that could embarrass some of its own key leaders. Many top officials – including Prime Minister Hun Sen – were once mid- ranking members of the Khmer Rouge. Scholars have said Hun Sen was not responsible for any atrocities.
"This raises serious questions about whether the Cambodian government has the political will to make this trial happen," says Sara Colm, a senior researcher for Human Rights Watch, a New York-based advocacy group that has been monitoring the tribunal's progress.