12
December, 2007
Human
Rights Now (HRN)
Minister for Foreign
Affairs, Masahiko Kohmura
Request
Human Rights Now, an
international human rights NGO, calls on the Japanese government to take the
following actions as preconditions for funding to the Extraordinary Chambers in
the Courts of Cambodia (ECCC);
(1) to express publicly and
repeatedly that the Japanese government certainly cannot accept corruption in the
ECCC and to ask the ECCC to take specific measures in order to prevent such
corruption.
According to international
NGOs and local newspapers, Cambodian staff members working for the ECCC,
including judges, reportedly pay a certain amount of their salaries (eg. 25%)
to the Cambodian government (so-called “kickbacks”) in exchange for their
positions in the ECCC. If kickbacks are actually paid, this is a serious
problem as it happens in ECCC, which is supposed to advocate the rule of law.
Furthermore, it is clear that not only a kickback problem, but any corruption
cannot be accepted.
The ECCC should take
specific measures such as expressing the statement by judicial officers or
responsible officials that corrupt acts like kickbacks are against the law and
unacceptable. Alternatively there should be an anonymous internal report system
like an ombudsman.
(2) together
with other donor states or even the Japanese government alone, it is necessary to
set the standards to check the effectiveness of measures to tackle problems
occurring within internal management such as the improvement/enhancement of
personnel affairs, transparency or leadership as well as prevention of
corruption in the ECCC and to constantly evaluate them in accordance with those
standards, linking evaluations with the funding of the ECCC.
Establishing a Committee
which is in charge of the evaluation work can be an effective measure.
(3) to call on the Secretary-General to appoint a
special advisor at high-level (SRSG or USG level) for the ECCC
The
background and reasons for the request
Within the ECCC, which was
established to try serious crimes committed during the Khmer Rouge regime,
internal rules and regulations were adopted and victims’ participation was
explicitly stipulated. Moreover, the trials of five of the accused who have
been detained(Kaing Guek Eav, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu
Samphan) will commence by this November.
Human Rights Now released
the statement “Justice for Victims – Fundamental Issues for the Extraordinary
Chambers in the Courts of Cambodia” in September 2006 and since then has
monitored the ECCC with its focus on victims’ participation. Human Rights Now
has also exchanged opinions with those concerned many times including on the
fact-finding visit in October 2006 and conducted its second visit to Cambodia
in November 2007.
Cambodia, with civil war
until the 1990s and serious damage done during the Khmer Rouge regime, has been
on the road to overcome its tragic past. The process of the ECCC in this
situation can be an extremely meaningful and practical step in reconciliation
of the society after conflicts with regard to the realization of justice and
overcoming impunity. The ongoing process has gradually reminded not only those
working for the ECCC but Cambodian victims of that possibility. The possibility
has been complemented by various activities of a society surrounding the ECCC
in addition to the process of the ECCC itself and furthermore it has promoted
those activities. A victims’ participation system, particularly a civil action
before a criminal court, for which Human Rights Now has been calling, has been
at the stage of filing civil actions, but it’s been recognized that it plays a
significant role in the ECCC in various aspects.
Moreover, the ECCC has great
potential to improve and develop the Cambodian judicial system in general.
However, this possibility of
the ECCC at the same time indicates the degree of negative influence in the case
that the ECCC does not successfully operate. In this regard, a variety of
issues which are referred to as things to be resolved by the Report of the UNDP
and Expert Report of the UNAKRT cannot be ignored and corruption such as kickback
problems which are pointed out by NGOs is never accepted.
On the other hand, the ECCC
will reportedly run out of funds next year due to the delayed adoption of
internal rules and regulations and what was not budgeted totally or
sufficiently. It is true that the entire the ECCC proceedings are expected to
be completed in 2009 or later. In addition, it is certainly critical to ensure
experts in the victims unit and witnesses unit, to train international legal
staffs familiar with Cambodian law, to educate Cambodian legal staffs familiar
with international law, to literally record the court proceedings, to improve
equipment in the court and to conduct outreach efforts all over Cambodia in
order to ensure the success of the ECCC.
The ECCC is entering
extremely crucial stages and Cambodia and the international community pay
attention to the position and actions of the Japanese government.
It goes without saying that
Japan is the biggest donor to the ECCC.
More specifically, Japan contributed almost half of the UN finances in the ECCC
budget and was one of the donors for the UN trust-fund which is used for
Cambodian finances. At the same time Japan is supposed to receive additional
requests for funds from the UN or the Cambodian government. What the Japanese
government does and says has a significant influence.
It is hard to avoid thinking
that when the Japanese government turns a blind eye, it leads to future
problems in the ECCC and Cambodia. This is particularly true if Japan does not
express its position on the abovementioned various problems and take specific
measures based on its stated position.
Considering the above
reasons, Human Rights Now strongly calls on the Japanese government to take
actions which are mentioned in the “request” in order to realize the potential of
the ECCC and to achieve its desired objectives at this crucial moment when the budget
and finance of the ECCC are focused on.
Among the above, with regard
to personnel affairs, transparency or leadership which is mentioned in (2), the
Report of the UNDP and the Expert Report of the UNAKRT points out in detail
that the recruitment process of ECCC staff members is defective: those who do
not meet the recruitment criteria are employed, salaries do not reflect the
criteria and competence, the recruitment process is not transparent and in fact
the Cambodian side and the UN side function separately.
In order to improve these
problems, with regard to personnel affairs, it is necessary to ensure that staffs
who meet the recruitment criteria by properly recruiting staffs again, give
salaries matching the criteria and competence and make responsible officials
both on the international side and the Cambodian side involved in the
recruitment process and to record the process. With respect to transparency,
immediate release ofsubmitted and published litigation documents, , periodical
publicatiosn of budget/disbursements, and regular press conference are needed.
Finally, with regard to the establishment of leadership, it is required to
improve the system of reporting to senior staff members and to recruit
responsible international staff who are competent and familiar with legal
procedures.
In addition, when measures
mentioned above (including implementation by the ECCC and mandate of Special Advisor)
are taken, it is necessary to pay
proper attention to Cambodian staff and to evaluate/treat them fairly as well
as to be careful of the capacity reinforcement for legal staff in Cambodia in
the light of the fact that Cambodia is a state concerned as well as a partner
working cooperatively with the UN in order to realize the desired objectives of
the ECCC.
Some cases of corruption
pointed out above are not related to funding by the Japanese government in
terms of budget allocation.
However, it is unacceptable
to overlook the corruption which is at the core of the credibility of the ECCC
if the Japanese government contributes a large amount of funding from the Japanese
tax payer’s money to the ECCC. With pervasive corruption, genuine justice
cannot be achieved, and therefore the Japanese government should play a role in
ensuring that the ECCC is transparent, with no corruption and in accordance
with international standards as a whole.
The ECCC must contribute to the
peace-building process for the Cambodian people and to improve the judicial
system there. Accordingly, based on this point, the Japanese government should
play an active role in overcoming problems such as corruption and transparency.