UNTAC Redux - Hun Sen's Cambodia - page 238

of UN member states, he had no choice but to make a deal. In March 2003 the UN and the
Cambodian government finally reached an agreement for the establishment of the ECCC.
Human rights groups were unimpressed. Mike Jendrzejczyk of Human Rights Watch
said that it represented “the lowest standards yet for a tribunal with UN participation.” 12
In a candid report to the General Assembly, Annan expressed his worry about the lack
of guarantees for due process and warned that if the Cambodian government deviated
from its obligations, the UN would withdraw from the court. On June 6, 2003 the ECCC
Framework Agreement was officially signed at the Chaktomuk Theater, where the 1979
trial had taken place a quarter-century before. Corell smiled as he shook Sok An's hand,
but he still had deep misgivings about the agreement. For better or worse, the Khmer
Rouge tribunal was finally a reality.
Six years of tortuous negotiations gave birth to a tribunal that was “hybrid” in the worst
sense. The ECCC Agreement created a court with two parallel “sides”—one internation-
al, one Cambodian—supported by separate budgets and administrations. There were two
prosecutors and two investigating judges and a specially constituted Pre-Trial Chamber
to resolve any disputes that might arise between them. As an extension of the political
compromises that marked the negotiations, distrust and delay were built into the ECCC's
very structure. The verdict of David Tolbert, a former deputy prosecutor at the Yugoslavia
tribunal, was damning: “It would be hard to design a much worse system even if you
wanted to.” 13
Problems became apparent even before the court opened its doors in mid-2006. In May
that year the government announced the names of the 17 local judges who would serve in
the ECCC. Some were competent individuals, but the CVs of others made for deflating
reading. On the list was Ney Thol, the president of the military court, who had presided
over the political show-trial of SRP lawmaker Cheam Channy in 2005. There was also a
candidate who had previously admitted to taking bribes, and another with no actual ex-
perience as a judge. 14 In theory, the appointments were made by the Supreme Council
of the Magistracy—the body intended to oversee the Cambodian judiciary—but it later
emerged that Hun Sen had had the final say. 15
It was naive, perhaps, to expect anything else. Cambodia had never known a proper
judiciary. Historically the law had been whatever those in power decided it was, a reality
still reflected in the fact that the Khmer word usually used for “prisoner,” neak thos , liter-
ally means “guilty person.” 16 Behind the mirage of legislation adopted to impress foreign
donors, musty provincial courthouses amounted to a money-making scheme. To pass the
oral exam at the Cambodian Bar Association was said to cost $30,000. Entry to the Royal
School of Judges and Prosecutors cost twice that amount. 17 Qualifications were generally
irrelevant. Even judges with experience and integrity rose and fell by the dictates of pat-