Politics, corruption and the ECCC

[Printed in the Phnom Penh Post in January 2009. Written in response to a US official’s public attempt to influence the Khmer Rouge Tribunal’s decision on a disagreement between the co-prosecutors on whether to open a new case.]

In his commentary on the disagreement between the co-prosecutors of the ECCC (Post, January 8), David Scheffer, a former US ambassador at large, asserts that it will be a case of “political intrigue or corruption swamp[ing] the court’s work” if the Pre-Trial Chamber rules in favor of the Cambodian co-prosecutor. However, his own argument is open to charges of attempted political influence and corruption.

Politics is not the exclusive preserve of government officials and self-declared “politicians”. The advocacy of particular principles or actions to be taken by governments or branches of government is political activity. Advocating that a court decide some issue on a basis other than the law and the evidence is to urge it to make a political, rather than a judicial, decision.

Professor Scheffer tells us that a ruling in favor of the international co-prosecutor, expanding the number of individuals charged, is necessary to “demonstrate the integrity and credibility of the court.” But the submissions to the Pre-Trial Chamber of both co-prosecutors are still confidential, so Professor Scheffer’s position can not be based on anything more reliable than very incomplete media accounts of the arguments.

It remains to be seen which side in the disagreement best conforms with the law and the agreement between the Cambodian government and the United Nations. But Professor Scheffer prejudges the situation and in effect threatens the judges of the Pre-Trial Chamber with being declared lacking in integrity and credibility if they make the “wrong” ruling. This is, to call things by their right name, political interference bordering on intimidation.

Furthermore, Professor Scheffer also points out monetary inducements for the judges to make the “right” decision. This, he says, would be “the key that unlocks the international money” for “long-term financial support of the ECCC.” Of course, Professor Scheffer is not approaching the judges with cash in hand, and his commentary is worded as a prediction of others’ behavior, not a firm offer. But he is a former United States ambassador at large, and people familiar with the US government’s to-ing and fro-ing about ECCC funding will see his words as a not very subtle hint.

How wrong Professor Scheffer’s action is can be seen if we imagine someone else desiring a particular decision from the court and acting in the same way. Suppose, for example, that a government somewhere has become convinced that one or more of the five persons charged by the ECCC is innocent of the charges. An influential former ambassador of this government writes an article in a Cambodian newspaper stating that if the ECCC demonstrates its integrity and credibility by resisting political pressures and acquitting the defendant(s), then an unnamed international donor is likely to provide the funding to allow the court to charge other possible defendants for several years to come. Surely Professor Scheffer would see that such an action was unacceptable. His action is equally so.

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