Hybrid Justice

Front matter

The Extraordinary Chambers in the Courts of Cambodia

More than thirty years after the fall of the Pol Pot regime, a UN-backed tribunal, fusing Cambodian and international law, procedure, and personnel, was established to try key Khmer Rouge officials for atrocities committed in the late 1970s. In this definitive scholarly treatment of the “Extraordinary Chambers in the Courts of Cambodia” (ECCC) from legal and political perspectives, John D. Ciorciari and Anne Heindel examine the ECCC'’s institutional features, compare it to other hybrid and international criminal courts, evaluate its operations, and draw lessons for the future.

Ciorciari and Heindel begin by discussing the political factors and historical contingencies that led the United Nations and Cambodian Government to createa hybrid tribunal with a number of unique features. Next, they examine the tribunal's operations to date, focusing on how its institutional form has affected its various intended functions. They argue that many aspects of the ECCC’s judicial proceedings have been broadly consistent with international standards and that the Court’s in-country location has provided important benefits in terms of public outreach and victim participation. Nevertheless, the authors demonstrate that the ECCC’s complex, divided institutional structure and wrangling between national and international actors have slowed the proceedings, contributed to administrative irregularities, led to due process concerns, and jeopardized the Court’s public legitimacy and ability to leave a legacy of credible justice, Ciorciari and Heindel argue that the ECCC’s experiences reveal many of the challenges of managing a mass crimes process, especially in the context of a hybrid court. They conclude with recommendations on measures that can be taken to meet some of those challenges going forward.

Index

Illustrations following page 166

ACRONYMS

ASEAN BAKC CGDK CIJ CPC CPK CPP CSD DC-Cam DESA DK DSS ECCC ICC ICCPR ICTR ICTY JAC OA OCIJ OCP OLA OSJI PAS PRK PTC

Association of Southeast Asian Nations

Bar Association of the Kingdom of Cambodia

Coalition Government of Democratic Kampuchea (1980s) Co-Investigating Judges (ECCC)

Criminal Procedure Code (Cambodia)

Communist Party of Kampuchea

Cambodian People’s Party

Center for Social Development

Documentation Center of Cambodia

United Nations Department of Economic and Social Affairs Democratic Kampuchea

Defence Support Section (ECCC)

Extraordinary Chambers in the Courts of Cambodia International Criminal Court

International Covenant on Civil and Political Rights International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Judicial Administration Committee (ECCC)

Office of Administration (ECCC)

Office of the Co-Investigating Judges (ECCC)

Office of the Co-Prosecutors (ECCC)

Office of Legal Affairs (United Nations)

Open Society Justice Initiative

Public Affairs Section (ECCC)

People’s Republic of Kampuchea (Cambodia, 1979-89) Pre-Trial Chamber (ECCC)

viii / ACRONYMS

RGC SCC SCM SCSL SCU SPSC STL TPO UNAKRT UNDP UNTAC VU

VSS WCC

Royal Government of Cambodia

Supreme Court Chamber (ECCC)

Supreme Council of Magistracy (Cambodia) Special Court for Sierra Leone

Serious Crimes Unit (East Timor)

Special Panels for Serious Crimes (East Timor) Special Tribunal for Lebanon

Transcultural Psychosocial Organization

UN Assistance to the Khmer Rouge Trials

UN Development Program

UN Transitional Authority in Cambodia (1991-93) Victims Unit (ECCC)

Victims Support Section (ECCC)

War Crimes Chamber (Bosnia and Herzegovina)

ACKNOWLEDGMENTS

Justice is notoriously elusive in the aftermath of mass atrocities. In Cambodia, more than three decades after the demise of the Pol Pot regime, many survivors still seek some form of legal accountability. Almost all seek a better understanding of the tragedy that befell them and the healing that may come from a process that acknowledges, dignifies, and in some measure responds to their suffering. Many international actors, too, have engaged. in the quest for justice, cognizant of the lingering stain of Khmer Rouge impunity on efforts to strengthen global accountability norms and promote the rule of law. This book emerges from our own efforts to advance law and meaning in the shadow of Khmer Rouge violence.

We focus on the most prominent official undertaking to address the Khmer Rouge legacy—the Extraordinary Chambers in the Courts of Cambodia (ECCC)—a hybrid judicial institution managed by the Cambodian Government and United Nations and tasked with putting former Khmer Rouge officials on trial. We endeavor to shed light on specific institutional features and practices that boost or inhibit a tribunal's capacity to meet its many, and sometimes conflicting, mandates. As in other societies coping with violent pasts, trials are not the only ways to meet survivors’ needs or strengthen the law, but the ECCC is an integral part of Cambodia's engagement with its troubled past. It also holds important lessons for other societies that prosecute mass crimes as part of broader transitional justice processes.

Conducting a detailed analysis of the ECCC would not have been possible without many helping hands. A number of current and former officials from the ECCC, United Nations, Cambodian Government, and other key states and non-governmental groups took time out of busy schedules to help us navigate this complex hybrid institution and the politics surrounding it. These include Anees Ahmed, Kris Baleva, Mychelle Balthazard, Andrew Cayley, Hans Corell, x / ACKNOWLEDGMENTS

Rowan Downing, Clair Duffy, Diana Ellis, Craig Etcheson, Elisabeth Simonneau Fort, Peter Foster, Anta Guissé, Steve Heder, Huy Vannak, Andrew Iannuzzi, Larry Johnson, Michael G. Karnavas, Karim Khan, Marcel Lemonde, Agnieszka Klonowiecka-Milart, Zach Lampell, Panhavuth Long, Jasper Pauw, Michiel Pestman, Caitlin Rieger, Richard Rogers, Nushin Sarkarati, David Scheffer, Rupert Skilbeck, William Smith, Christoph Sperfeldt, Jeanne Sulzer, David Tolbert, Clint Williamson, and You Bunleng. Sometimes their assistance took the form of an interview, and on other occasions they helped us by responding to specific questions or providing us with useful background information. We also thank a number of current and former Cambodian officials at the ECCC who completed confidential questionnaires or otherwise helped us to understand the workings of the Court.

This research project has grown out of our work with the Documentation Center of Cambodia (DC-Cam), an independent organization dedicated to memory and justice in Cambodia. We have both had the privilege of serving as legal advisors to DC-Cam for a number of years, and our dedicated colleagues at the Center have been sources of both inspiration and expertise. Executive Director Youk Chhang, Chy Terith, Dy Khamboly, Kok-Thay Eng, Samphors Huy, Kim Sovanndany, Sokvisal Kimsroy, Ly Sok-kheang, Ros Sampeou, Savina Sirik, Dara P. Vanthan, and many others have helped advance our research by sharing their knowledge of the ECCC and Cambodia's broader efforts to account for the past. Much of our knowledge also comes from years working with our fellow international advisors to DC-Cam—including Randle DeFalco, Alex Hinton, Jaya Ramji-Nogales, Ron Slye, Sarah Thomas, and Beth Van Schaack.

We are indebted to a number of talented researchers who helped inform our analysis on specific aspects of international criminal law and the workings of hybrid and international criminal tribunals. Many have been legal associates at DC-Cam, including Kimberly Ang, Tessa Bialek, Adam Coady, Chad Spencer Cryder, Andy Diamond, Joanna Geneve, Charles Jackson, Lise Reuss Muff, Anna Mumford, Elizabeth Nielsen, Richard Kilpatrick, Tatiana Sainati, Della Sentilles, Valerie Stranieri, and Charline Yim. Ben Goldman also assisted us, and a pair of University of Michigan students— David Sukenik and George Tam—helped us examine features of other hybrid courts as part of the universitys Undergraduate Research Opportunity Program.

We are grateful to Martha Minow and Austin Sarat, the editors of the series “Law, Meaning, and Violence” in which this book appears, and our anonymous

ACKNOWLEDGMENTS / xi reviewers for their support of the project and the useful feedback they provided. We also thank Melody Herr, Susan Cronin, Kevin Rennells, and others at the University of Michigan Press for their careful and timely work in bringing this book to fruition.

Last but certainly not least, we thank our spouses, who have provided love and encouragement even during the many odd hours when we huddled over our respective copies of an evolving manuscript. We dedicate this book to them.

Introduction

Every year, the monsoon rains come to Cambodia. The Mekong floods, and the country’s lowland plains become glassy lakes punctuated by palm trees and stilted wooden homes. The tranquil water washes the earth and furnishes new life. When the floods recede, however, the land reveals that it still bears the scars of the country’s brutal past. Thousands of large pits are scattered across the landscape—reminders of bombardment during years of war and innumerable mass graves dug during the Pol Pot years. Scores of stupas and memorials serve as bandages that Cambodians have used to dress their wounds. Beside them, survivors can often be seen praying and leaving offerings for the departed. Like others who have suffered mass human rights abuses, Cambodians remain engaged in a complex process to deal with past atrocities and make sense of their country’s troubled modern history.

No part of Cambodia's past involved greater suffering than the Pol Pot era, when Cambodia descended from being a“sideshow” to the Vietnam War to the neglected site of some of history's most appalling atrocities, That period began in April 1975, when communist Khmer Rouge guerrillas emerged victorious in a five-year civil war against the U.S.-backed military regime of General Lon Nol. On April 17, Khmer Rouge fighters streamed into Phnom Penh. Most were young peasants, carrying AK-47s on their shoulders and dressed in simple black cotton uniforms, traditional checkered headscarves known as krama, and black rubber sandals made from old tires. A beleaguered city, swollen with refugees, greeted their arrival with a sigh of relief and hope that their triumph would bring peace.' Those hopes faded quickly. Within hours, the young guerrillas began rounding up and executing Lon Nol officials and other suspected enemies of the revolution. They also began evacuating the city, forcing people of all ages onto dusty roads with little knowledge of their destinations,”

Khmer Rouge leaders thus began a radical and ruthless program for social transformation. Their ideological impetus, which one scholar has described as “hyperMaoism,” was to create a self-sufficient agrarian state immune to unwanted foreign influence. The Khmers Rouges emptied the cities so that “new people’—such as urban merchants and bourgeois intellectuals—would be dispersed among the “base people” already working in rural cooperatives. Monks and other religious leaders were defrocked, currency was abolished, and families were forcibly separated to weaken traditional social bonds and replace them with loyalty to Angkar, the faceless revolutionary “Organization” only later revealed to comprise the top leadership of the Communist Party of Kampuchea (CPK).

The Standing Committee of the CPK’s Central Committee, the “highest leading body” of the renamed state of Democratic Kampuchea,’ built a nationwide bureaucratic and security apparatus on foundations of party allegiance and fear. One of its chief aims was to “sweep clean’ the state by “smashing” and “screening out” the “enemies” of the revolution and other “no-good elements.” Angkar was said to have “eyes like a pineapple” on constant vigil, as Khmer Rouge cadres—often victims themselves, with guns rather than pencils thrust into their hands as children—detained, tortured, and killed suspected “enemies,” sometimes in public view to set an example and often for offenses as minor as stealing small portions of food to feed their families.” Schools and other buildings were converted into makeshift prisons, where many suspects were subjected to primitive torture devices before being dispatched to their deaths, often by bludgeoning to save precious bullets."

When radical Khmer Rouge economic and social policies failed to deliver a “Super Great Leap Forward,” countless others died of hunger or disease. Between April 1975 and January 1979, an estimated 1.5 to 2 million people— roughly a quarter of the country’s population—perished under CPK rule. For survivors, Democratic Kampuchea lingers in their memories as “hell on earth,’ a “prison without walls” in which people of all ages toiled endlessly in poorly managed factories or fields, parroted lifeless revolutionary slogans, and hoped that they and their families would not be the next to be summoned before juvenile cadres to face charges that so often swiftly turned to death. Personal accounts provide windows into survivors’ immense individual suffering as they mourn the loss of loved ones, search for understanding, and grasp for justice and a sense of healing,”

Dealing with atrocities like those committed in Democratic Kampuchea raises difficult questions. What exactly happened? Who is most to blame? How can victims achieve some form of redress? How can a society heal social divisions, build a rule of law, and lessen the likelihood of future abuses? All of these questions have been asked in Cambodia, and none has been easy to answer, The opacity of the Pol Pot regime has left survivors scouring for information about why the Khmers Rouges killed and what became of many victims whose families still do not know their fate. Apportioning blame has been difficult in a state where Khmer Rouge veterans—and the foreign powers that contributed to the rise and rule of the CPK—remain influential. The sheer scale of the violence has been a daunting impediment to redressing victims for their losses. Promoting social reconciliation and the rule of law have been generational challenges.

Societies emerging from mass terror have implemented a variety of transitional justice mechanisms to pursue truth, accountability, reconciliation, and other aims. These include truth commissions, lustration schemes, amnesty programs, and criminal trials. None is a silver bullet. The legal and institutional arrangements conducive to promoting some desired ends do not always advance other objectives, and choices need to be made. Addressing mass atrocities thus presents both moral imperatives and confounding policy challenges. To make good on the former requires wrestling with the difficulties of the latter.

Cambodia's path to historical truth, justice, and reconciliation has been marred by inadequate and inconsistent official efforts to deal with the Khmer Rouge legacy. A spate of hasty domestic criminal trials followed the overthrow of the Pol Pot regime by Vietnam-backed forces but had little effect on Khmer Rouge leaders, who retreated to the jungle and led a protracted insurgency with foreign support. Selected amnesty programs coaxed some Khmers Rouges away from the insurgency but were not accompanied by an official truth commission process, While ordinary Cambodians and non-governmental groups worked to promote grassroots-level reconciliation, that process was frustrated by the lingering impunity of top Khmer Rouge leaders and lack of a credible official accounting of the atrocities of the Pol Pot era.”

Roughly two decades after the demise of Democratic Kampuchea, the Cambodian Government, United Nations, and key UN member states began to focus more seriously on the issue of Khmer Rouge accountability, Although they could have pursued a number of institutional mechanisms, they chose to make a criminal tribunal the centerpiece of transitional justice efforts in the country. To that end, they created a novel judicial body, the Extraordinary Chambers in the

Courts of Cambodia (ECCC), which opened its doors on the western outskirts of Phnom Penh in 2006, The ECCC is a “hybrid” tribunal that fuses local and international laws, procedures, and personnel.

Like other mass crimes courts, the ECCC was created primarily to deliver justice and secondarily to advance other aspects of social healing and development. Its principal mandate is to try “senior leaders” of the Pol Pot regime and others deemed “most responsible” for crimes committed under CPK rule. More than three decades after the Khmer Rouge tragedy, only a few senior Khmer Rouge figures survive. The ECCC will likely be the last officially sanctioned opportunity to seek a measure of justice and pronouncement of legal truth on the inner workings of the Pol Pot regime. It also provides an opportunity to empower survivors through speech acts, facilitate discussion of a subject that has often been taboo in Cambodian society, and promote more far-reaching objectives such as reconciliation and the rule of law.

Satisfying such lofty goals is difficult for any court of law. Criminal trials are not designed to carry out all—or even most—of the functions needed to address past atrocities. Yet tribunals are often part of the societal response, and when they function well, they can play crucial roles within broader transitional justice processes. When they fail, they can dash hopes and consume resources that would better have been expended on other measures. This book examines how the ECCC’s unique structural features and the agency of key official actors have affected its capacity to deliver credible jurisprudence, administer complex proceedings, provide meaningful engagement for survivors, and leave a positive societal legacy.

We argue that the ECCC’s experience shows some advantages of incorporating local legal principles and personnel but reveals even more strikingly the risks of operating a mixed court. Our title—Hybrid Justice—evokes the awkwardness of an accountability process based on fusing national and international laws, procedures, personnel, and political interests. The ECCC shows how susceptible mass crimes courts are to legal confusion, procedural delay, and financial and administrative impasses when authority and responsibility are divided. It also shows the danger of creating a court with inadequate institutional safeguards against administrative malfeasance and political interference, especially when the host government has a weak track record of judicial integrity and independence. Agency clearly matters, but a court’s structural design can make its functional success much more ot less likely.

The goals of our analysis are twofold. First, we aim to contribute to a better understanding of the transitional justice process in Cambodia by providing a detailed account of why the ECCC was endowed with unique institutional features and how the Court has advanced, or sometimes failed to advance, its stated objectives. Second, by examining the Cambodian case in comparative perspective, we seek to shed light on the types of institutional features and personnel choices that help tribunals meet their mandates or impair their functional effectiveness—lessons that can help guide the reform of existing courts and design of new ones.

A UNIQUE HYBRID COURT

The ECCC and other hybrid courts exist along a wider spectrum of criminal tribunals ranging from ordinary domestic courts to the three purely international bodies now in operation—the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) and the International Criminal Court (ICC). Hybrid courts emerged in the late 1990s, largely in response to perceived problems with fully international tribunals. In 1993 and 1994, the UN Security Council established the ICTY in The Hague and the ICTR in Arusha, Tanzania. Their creation was a watershed for international criminal accountability, but it quickly became apparent that both tribunals would consume much more time and money than originally foreseen, and “tribunal fatigue” spread among key UN donor states,”

Sovereignty was another major concern, To many critics—including the governments of powerful developing countries such as China and Brazil—the ICTY and ICTR were projections of Western power and set dangerous precedents for justice meted out by the strong against the weak.!6 The out-of-country locations of the ad hoc courts also made investigations more cumbersome, arguably weakened deterrence, and reduced the tribunals’ contact with the government and survivor population, which limited opportunities for capacity-building and outreach and education programs.” To critics, distant trials run by foreign powers lacked not only local ownership but also political legitimacy."

Domestic proceedings were one possible alternative, but some national court systems lacked the capacity or credibility to manage complex criminal trials. For example, a generation of conflict and foreign rule left East Timor with fewer than 10 trained lawyers by the end of Indonesian occupation in 1999.” In Cambodia, UN-appointed experts and officials deemed national courts unappealing, both due to capacity constraints and because they were riddled with corruption and political interference.”

In theory, hybrid courts would deliver justice meeting international standards but at a lower cost, easing sovereignty concerns by operating with host government consent and enjoying the functional advantages of proximity to the locus delicti and aggrieved population.”' The greater ease of transporting investigators, evidence, and witnesses within the host country would save money, as would the lower cost of local operations and personnel.” Local judges and lawyers would contribute linguistic skills and country knowledge to complement the legal expertise of their international counterparts.” The late Antonio Cassese, who served first as ICTY president and later as president of the hybrid Special Tribunal for Lebanon, emphasized hybrid courts’ potential “spill-over effect” of training local legal personnel and ability to promote a “cathartic process” by connecting with and educating the nearby survivor population.”

Hybrid courts also carry risks, however. Too much international control exposes them to charges of imperialism, but too little subjects them to the vicissitudes of local judicial systems and the risk that local actors would use the court to convict their enemies and defend their domestic allies.” As scholar Suzannah Linton argues, the hybrid model was “a radical move away from the earlier prevailing wisdom that the non-inclusion of nationals of the country most affected would preserve impartiality, objectivity and neutrality:° The danger of political interference from local executive authorities is clear.” Where national authorities engage in obstructive or dilatory tactics, hybrid tribunals generally lack the legal authority to compel state cooperation, precisely because they are created consensually rather than by binding resolutions of the UN Security Council— as in the case of the ICTY and ICTR.” The mixed composition of courts also increases their complexity and poses administrative and operational challenges quite apart from political haggling.”

Funding and political commitment are further potential challenges. Unlike the ICTY and ICTR, which receive funds from the general UN budget, hybrid courts generally have relied on voluntary funding, leaving them vulnerable to financial gaps. To a significant degree, they took shape precisely because key donor states were unwilling to invest the financial and political capital needed to set up fully international courts.” These risks explain why many human rights advocates have been skeptical of mixed courts, and even some international lawyers and officials instrumental in designing hybrid courts have not presented them as models that should be followed in the future.”

Cambodia was not the first site for a hybrid court. From 1996 to 2003, pursuant to the Dayton Peace Agreement, a hybrid Human Rights Chamber operated in Bosnia and Herzegovina, staffed with judges from the national system and elsewhere in Europe.” In East Timor, UN transitional administrators created hybrid “Special Panels for Serious Crimes” in the Dili District Court to deal with violence by Indonesian Special Forces and allied militias after the Timorese referendum for independence in 1999.” They also created a Special Crimes Unit funded and staffed by the United Nations to investigate offenses.” In Kosovo, a proposal to establish a hybrid war crimes court was shelved due to cost considerations,” but UN administrators did establish hybrid panels to hear cases involving interethnic strife and possible judicial bias.”

In both East Timor and Kosovo, hybrid courts were part of the domestic judicial system but had international majorities on the bench—a feature UN officials adopted in Kosovo after early judgments by majority-domestic courts suggested that only international majorities would ensure impartiality.” In 2002, the United Nations and Sierra Leonean government signed an agreement establishing the Special Court for Sierra Leone—which is based in Freetown and likewise featured a majority of foreign judges and key personnel—to hear criminal cases related to that country’s civil war.’ The ECCC was established the following year by a 2003 agreement between the United Nations and Cambodia and subsequent 2004 domestic implementing law.

The ECCC identifies itself as part of the family of hybrid courts and asserts that hybridity has several advantages:

The hybrid tribunal model is seen as a way to provide full national involvement in the trials while at the same time ensuring that international standards are met. Unlike tribunals for Rwanda or the former Yugoslavia, these trials are not removed from the place where the crimes occurred. They are held in Cambodia, conducted mainly in Khmer, open to participation by Cambodian people and reported via local television, radio and newspapers.”

It is important not to treat all hybrid courts as products of the same template, however. Hybrid courts differ in crucial ways, and the ECCC is sui generis in many respects. It has a strong domestic legal basis and civil law character and is the first mixed court with a majority of domestic judges. It is the only mass crimes court with national and international co-prosecutors and co-investigating judges, who share responsibility for the investigation. Judicial, defense, and administrative roles are also divided between Cambodian and UN appointees, splitting the Court into two distinct “sides.” It is also the first to include victims in the proceedings as civil parties. These unique aspects of the ECCC proceedings have had profound effects on its function.

IMPORTANCE OF THE CAMBODIAN CASE

Understanding the ECCC’s institutional features and functions is important both for Cambodia scholars and for analysts of international criminal law and transitional justice. The Court represents the apex of Cambodia's tormented accountability process. Human rights activist Kek Galabru spoke for many when she said that the start of Khmer Rouge trials finally gave “hope for justice to victims, who have been waiting thirty years”® to take a stand against Khmer Rouge impunity. The tribunal also has importance well beyond Cambodia's borders, It represents what human rights lawyer James Goldston has called “an extraordinary experiment in transitional justice’“'—the first hybrid tribunal in which the United Nations effectively took a back seat to a national judicial system. Assessing the results of this and other novel, experimental aspects of the Court is imperative as lawyers and diplomats seek to reform the ICC, advise national governments on best practices for mass crimes trials, or create or modify hybrid tribunals.

A few hybrid courts have taken shape since the ECCC was established. In 2005, the government of Bosnia and Herzegovina agreed with the international Office of the High Representative to create a mixed War Crimes Chamber as part of the national court system with authority to try cases for lower- to mid-level perpetrators referred to it by the ICTY.” In 2009, the United Nations and Lebanese government established a majority-international Special Tribunal for Lebanon to address the murder of Prime Minister Rafiq Hariri in 2005 and related crimes. In 2012, Senegal and the African Union agreed to create “Extraordinary African Chambers” to try former Chadian dictator Hisséne Habré, Like the ECCC, Senegal’s extraordinary chambers exist

“within the existing Senegalese court system’ and feature a majority of domestic judges. Variants on the Cambodian model of a domestically led hybrid court may appeal to governments eager to retain political control while reaping some of the financial, technical, and reputational benefits of international involvement. This book evaluates the extent to which that model has worked in Cambodia.

The ECCC has had some important successes. It conducted its first trial largely in line with international standards and issued the first credible conviction of a Khmer Rouge official for crimes of the Pol Pot era against Kaing Guek Eav alias “Duch,’ former head of the infamous CPK prison at Tuol Sleng, where thousands of prisoners were tortured and sent to their untimely deaths. The Court has featured a zealous prosecution and defense, extensive investigations of its first two cases, and numerous credible judicial rulings. It has also developed an innovative victim participation program, conducted local outreach programs, and maintained high public favorability ratings. Cambodia's Deputy Prime Minister Sok An has trumpeted the ECCC experiment as a success, saying in a 2010 speech before UN Secretary-General Ban Ki-moon that “(t]he ECCC is now internationally recognized as a good model not only for Cambodia, but also for internationally assisted courts that may be established in the future.”

Many observers disagree, as the Court's significant failings have been apparent. It has become mired in controversies over corruption allegations, administrative mismanagement, and a nearly debilitating feud between key Cambodian and international personnel on the scope of prosecution. As scholar Duncan McCargo argues, these feuds have been “inextricably bound up in politics,” undermining the credibility and integrity of the process.*° The ECCC has also proven slower and more costly than anticipated, leading to frequent funding shortfalls and a decision to truncate its most important case against a group of surviving senior Khmer Rouge leaders.

Brad Adams of Human Rights Watch, a strident critic of the tribunal, reports widespread agreement in UN circles that the ECCC is “a mistake that should never be repeated elsewhere.” Scholar Peter Maguire argues that the United Nations entered a “Faustian” arrangement and should “relegate the ‘mixed tribunal’ model to the dust bin of history.’ Former UN Legal Counsel Hans Corell, who resisted Cambodian preponderance during the tribunal negotiations, said in 2012:

I am sure that, today, even people without courtroom experience realize that the solution chosen for the ECCC should not be used as a model for any future effort of this nature. The UN hallmark should not be given to institutions over which the Organization does not have full administrative control.”

Many analysts have argued that operating as the junior partner to the Cambodian Government exposes the United Nations to serious reputational risk.”° Former ECCC official Craig Etcheson asserts that difficulties in the Khmer Rouge trials have made the Cambodian model “radioactive” to most of the relevant officials in the UN Secretariat.” To its many detractors, the ECCC is a black sheep within the family of UN-backed tribunals. We evaluate the extent to which that reputation is warranted.

AN OUTLINE OF OUR ARGUMENT

We argue that the ECCC is not a model to be followed and that the Court's design flaws have added considerably to the challenge of delivering a credible and efficient accountability process, often undermining the best efforts of many of its staff. The Court’s key structural flaws lie more in its uniqueness than in its status as a hybrid institution. Given the state of Cambodia's judiciary, the ECCC’s greatest built-in weakness is that the United Nations has too much involvement to escape responsibility for the Court but too little authority to run it. That has contributed to halfhearted UN ownership and relatively weak international responses to serious problems that have originated on the Cambodian side. Weak oversight mechanisms also leave the UN side subject to inadequate scrutiny, while bifurcation between its national and international “sides” prevents decisive leadership, contributes to inefficiency, and facilitates politicization of contentious issues. An awkward mix of civil and common law features only add to the confusion and challenge of running a fair and efficient process. As we discuss in chapter 1, these flaws were readily apparent during the lengthy negotiations between UN and Cambodian officials. Most would have been difficult to avoid, however, due to Cambodia's acute sovereignty concerns and the absence of international will or capacity to impose a different structure. The same political tensions and distrust that led to the ECCC’s divided structure have continued to stress the institution at its weak points throughout