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Corruption Impasse Worries Tribunal Observers

With a controversial agreement over corruption complaints in place between the UN and Cambodian Khmer Rouge tribunal negotiators, worries remain over the future of the hybrid court.

The two sides are at loggerheads over anonymity for complainants, leading to a failure in talks earlier this month. For now, complaints to the Cambodian side of the UN-backed tribunal are to go through Cambodian channels, while the UN will handle complaints from its own side.

John Hall, an associate professor of the Chapman University of Law, in California, who has written on corruption at the tribunal, believes the UN could pull out if such a procedure is deemed insufficient.

“If the UN believes that the current situation is unacceptable, if it threatens the credibility of the court, it should say so, and it should withdraw its technical support for the court,” Hall said.

The lingering questions over corruption and mismanagement come as the tribunal’s first trial, of prison chief Duch, is underway. Duch, whose real name is Kaing Kek Iev, has been facing tribunal trial judges since March 30, addressing atrocity crimes charges for his role as the director of the regime’s Tuol Sleng prison, its main torture center, in Phnom Penh.

Even with Duch in court, the Cambodian side of the tribunal has struggled. It was only able to pay the March salaries of its staff through emergency bilateral funding from Japan.

If such money dries up completely, the tribunal could collapse, Hall said.

“The best hope of going forward is that the donors and UN finally take a firm stand and make it clear that allegations of corruption within the tribunal must be thoroughly investigated,” he said. “We talk about seeking a tribunal that meets international standards, but what does that mean if we continue to turn a blind eye to corruption?”

UN officials and other observers say increased pressure from donors could break the impasse, or a solution might be found between the secretary-general of the UN, Ban Ki-moon, and Prime Minister Hun Sen.

“You would have to have a political decision at the level of the secretary-general, and you would have to have the donors on-side,” said David Tolbert, a senior fellow at the US Institute of Peace and a former special adviser to the tribunal. “I don’t foresee at the moment the UN pulling out, but I am not privy to the internal discussions at this stage. So I think that’s speculative.”

The tribunal is unlikely to collapse, said Scott Worden, an expert on the rule of law at the USIP. The Cambodian government has proven effective at testing the limits of the donor community and finding political support for its aims, and besides, he said, donors still have obligations to help Cambodia.

“With a positive story like Duch’s trial, which is progressing, it’s hard for the international community to say, ‘We are going to cancel it,’” he said. “The Cambodian government knows that. So you have this bargain.”

Observers in Cambodia say that if the UN walks out, countries like China and some Cambodian officials will be pleased.

“It appears increasingly as though the Cambodian government would prefer to see the tribunal fail than to agree to a credible investigation of the corruption allegations leveled against Cambodian officials,” Hall said. “How shameful. The Cambodian people deserve better than that.”

The continued allegations have caused some foreign donors to withhold funding from the Cambodian side of the court. The Australian government has said it wants to release $456 million in funding, but the UNDP, which administers the money, has said it will not release it until current allegations, that staff have paid kickbacks for their positions on the Cambodian side, are addressed.

"The United Nations made the right decision in refusing to sign onto a sub-standard anti-corruption proposal," said James Goldston, executive director of the Open Society Justice Initiative, which monitors the tribunal. “It’s disappointing to see donors such as Australia undermine the UN’s resolve by releasing their funds to the court without an adequate anti-corruption mechanism in place.”

“The United Nations, Cambodian government and donors must now set a deadline for agreeing to an acceptable solution, which must include the right for [tribunal] employees to report wrongdoing to either international or national ethics monitors, as well as adequate protection for whistleblowers, including confidentiality guarantees,” he said. “Only after such an agreement is reached should donors feel confident to release their funds, and only on the condition that the mechanism will be closely watched and audited for performance.”