In between lounging in the backyard and assaulting Robert Fisk’s brick-like The Great War For Civilisation, I’ve been immersing myself in readings about the Khmer Rouge Tribunal — scheduled, after nearly two decades of diplomatic evasion and acrimonious negotiations, to begin operation sometime in 2008. But after again reading about the tribunal’s tortuous gestation, I’m growing increasingly pessimistic as to when — and to what degree — justice will ever be done. The Extraordinary Chambers in the Courts of Cambodia (ECCC) are now in the process of processing appeals against the provisional detention of the five defendants — KR heavyweights Ieng Sary, Ieng Thirith, Khieu Samphan, Nuon Chea and Khang Khek Iev — and the procedure (checks, balances and all) is crawling along at a glacial pace.

Given that the trials are expected to last three years, there’s every chance that the defendants will be dead before the ECCC has a chance to bring them to trial. Pol Pot evaded justice by dying in mysterious circumstances at his jungle headquarters in April 1998, while the one-eyed Ta Mok — nicknamed ‘the Butcher’ for his ruthless purges — died in prison in 2006 while awaiting trial. Several of the current defendants, including ex-KR head of state Khieu Samphan — who reportedly suffered a stroke on the eve of his arrest in November — are in similar ill-health, making a speedy and efficient trial a high priority. A degree of procedural fastidiousness is vital for the ECCC’s international credibility, but should not be allowed to compromise its avowed aim: to bring the remaining Khmer Rouge leadership to justice.

This tension between international and local imperatives has plagued the relationship between the UN and the Cambodian government since the latter requested international assistance for a trial in 1997, with the constitution of the court a constant sticking point. The Cambodians consistently argued that the trials had to take place firmly within the context of Cambodian national sovereignty and involve a majority of local judges and prosecutors. (This was a logical outcome of a history of constant foreign intervention in Cambodian affairs — by the French, Americans, Vietnamese and, for a short period in the 1990s, the UN itself). Many in the international community, on the other hand, expressed fears that a trial conducted in Cambodia’s court system, and under Cambodian law, could never deliver a fair and transparent verdict. NGOs such as Human Rights Watch and Amnesty International pointed to the government’s penchant for meddling in the workings of the judiciary, which, while nominally independent, was more or less subordinate to the ruling Cambodian People’s Party (CPP). Concerned about the UN’s international reputation in the lead up to the 2003 American invasion of Iraq, Secretary-General Kofi Annan was hesitant to involve it in any trial that could be seen as corrupt or politically motivated. The UN negotiating team, led by the Swedish diplomat Hans Corell, steadfastly asserted that any KR tribunal had to be composed of international judges and prosecutors, preferably conducted in a third-country location. This the Cambodians refused. In February 2002, Corell withdraw from the negotiations altogether, infuriated by the ‘obfuscation’ of the Cambodian negotiators.

The ‘mixed’ (joint UN-Cambodian) tribunal model that was finally signed into existence in June 2003 was a child of political compromise, but turned out to be an innovation in international justice. The defendants would be tried using Cambodia’s domestic legal framework, in accordance with a domestic Khmer Rouge Trial law (passed in 2001), which incorporated articles from the 1948 UN Genocide Convention. The agreement established a tribunal consisting of a Supreme Court Chamber, composed of four Cambodian and three international judges; a Trial Chamber, consisting of three Cambodian judges and two international appointees; and a Pre-Trial chamber, composed of the same. The role of the prosecution and the investigative team were each to be shared by one Cambodian and one UN appointee.

However, the agreement elicited mixed reactions. Cambodian negotiator Sok An argued that it represented ‘a model that… can contribute to the development of international humanitarian law and contribute to legal and judicial reform in Cambodia’, a position shared by many Cambodia watchers and diplomats. But the 2003 agreement has come under fire from human rights NGOs for ‘falling short’ of international standards of impartiality and justice. Due to the ‘precarious state of Cambodia’s judiciary’, Amnesty International argued, the UN General Assembly should ‘make the improvements necessary to bring [the tribunal] agreement into line with international laws and standards’. For such critics, no trial was preferable to a ‘flawed’ one — a noble enough sentiment, but one that disregarded both the practical considerations of attaining such a ‘perfect’ form of justice, and the moral imperative of allowing some degree of Cambodian involvement in the trial process.

There was also a lingering fear that certain leading Khmer Rouge could be exempted from prosecution by the personal arrangements that secured their defections to the government in the 1990s. Ex-DK foreign minister Ieng Sary was the recipient of a royal amnesty in 1996, which protected him from the death sentence handed down by a 1979 show trial, and there were fears that this would be dusted off and presented in his defence. Likewise, Khieu Samphan and Nuon Chea returned to the capital in 1998 under a Thai-Cambodian agreement that protected them from arrest. Will prime minister Hun Sen flex his political muscles to secure their acquittal? Both seem unlikely. During the trial negotiations, the UN representatives clearly stated that nothing could prevent a prosecution for the crime of genocide (the only conviction that Ieng Sary’s amnesty specifically annulled). And the CPP, for all its flaws, is the only political group to have consistently advocated a Khmer Rouge trial since their overthrow, and stand to reap much political capital from an open and transparent trial process.

As American lawyer Gregory Stanton has argued, the real ‘enemy of justice’ in Cambodia is a well-meaning but misdirected legal purism, which, if heeded, would only give succour to Cambodia’s culture of legal impunity. Some degree of justice is better than none at all — and the ECCC would appear to be Cambodia’s last chance at absolution.