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In US, Questions Linger Over Tribunal Legitimacy

As US officials consider funding for the cash-strapped Khmer Rouge tribunal, some observers in the US say the courts may not have done enough to guarantee a international standards. Others say US participation and funding can help the courts reach those standards. So far, there is no guarantee the US will contribute direct funding.

The US was a main supporter of early tribunal negotiations between the UN and Cambodia, in a process mediated seven years ago by US Senator John Kerry. But the US has yet to provide any direct funding to the courts, which have been up and running for more than a year.

The US has supported the tribunal through non-governmental organizations, but officials have warned that a lack of transparency and charges of corruption and politicization in the courts have precluded direct funding.

Direct funding for the courts remains a contentious issue. For legal experts, rights groups and government officials, the question is one of justice, and whether US funding can help provide it or not.

For Sophie Richardson, deputy director of the Asia program for Human Rights Watch, this should not mean "second-rate justice."

A lot of donors already feel "burned" by contributing to the tribunal, only to witness revelations of "corruption, kickbacks and political manipulation of the court," Richardson said.

For that reason, it is important the US remain outside the process, seeking other avenues for participation, such as support of the Victim's Unit, she said.

The courts had shown bias toward the ruling Cambodian People's Party, which continues to rule with "oppression and manipulation and abuses," Richardson said, "and that's not something that US taxpayers should be supporting."

However, a struggling court could benefit from US participation, said Kelly Askin, a senior legal officer for international justice at the Open Society Justice Initiative.

"It is critically important that the United States get involved with the court, fund the court, and help improve the court," she said.

"But the United States, like any country thinking about supporting the ECCC, will want to be sure the court is operating as effectively and efficiently as possible," she said, referring to the tribunal by its official name, the Extraordinary Chambers in the Courts of Cambodia. "That means fully investigating allegations of corruption and mismanagement and establishing certain financial controls to ensure funds are being well spent."

The government and the courts have denied as "groundless" allegations put forward last year by OSJI that judges were paying kickbacks to high-ranking officials in order to sit on the tribunal. A subsequent UNDP audit found mismanagement and other questionable practices within the courts, but in public documents the audit did not find evidence of kickbacks. The full audit results have not been released.

Askin said the courts have made "great progress" following the allegations, "but there are some concerns."

OSJI was encouraging donors to put benchmarks in place for funding, to ensure concerns are addressed, he said. The tribunal will cost at least $56 million, most of it coming from the UN and other donors. The government is seeking more funds, claiming the tribunal could last into 2010. So far five former Khmer Rouge leaders have been arrested and charged with atrocity crimes. The arrests led to some optimism in the court proceedings and a visit to Cambodia in December by the US ambassador at large for war crimes, Clint Williamson, who said a US funding decision should be made in January, following his tour of the courts.

Charles Twining, who was the US ambassador to Cambodia from 1991 to 1995, said Cambodia had shown a willingness to fight corruption.

Now was the time for US support and funding, he said, adding that "an imperfect tribunal is better than no tribunal."

Schanly Kuch, an analyst of Khmer Rouge issues who is based in the US state of Maryland, said in order for the US to help the tribunal, there must be "clear conditions," but the US should not support a tribunal that does not meet international standards.

Kuch's assessment echoes concerns for most parties involved in the tribunal. So far, the biggest question is one of credibility.

For Tung Yap, vice president of the Cambodian American National Council , US participation in the tribunal was crucial, because the US could demand political independence in the courts.

"The US should demand the court to function properly in order to find, to dig up the root, for people to be satisfied and find out why the Khmer Rouge committed the atrocities when they were in power in Cambodia," Yap said.