A precondition of justice for the victims of Cambodia’s genocide is justice for living Cambodians. Both present and past problems can be solved only through fundamental reform of the system for administration of justice. By artificially separating discussion on justice for living Cambodians from justice for the genocide victims, as is the case at present, every gesture towards either is farcical.
The United Nations (UN) has erred in Cambodia, but not in its ending of negotiations for a tribunal to try those responsible for the genocide. In this the UN took the only option left to it. Its decision to not join with the Cambodian government in its present arrangement for the genocide tribunal is sometimes critiqued as the loss of an opportunity to influence development of the Cambodian justice system. However by participating it would merely have given credibility to an absurd undertaking.
The UN’s real mistake—which began during the period of the UN Transitional Authority on Cambodia (UNTAC) and continues up to now—has been much more fundamental. This has been its failure to take firm action to help the recovery of the Cambodian system for administration of justice. This shortcoming has arisen for a number of reasons. First, UNTAC did not have a clear mandate on reform of the justice system in Cambodia, although the ambitious aim of its mission was to create liberal democracy there. Second, the UNTAC leadership lacked the will to give a more liberal interpretation to the mission’s role necessary to achieve what was required of it. Third, subsequent UN interventions have exposed the existing legal system’s flaws but have not offered a comprehensive scheme for technical advice and assistance. In short, the utter collapse of the Cambodian justice system does not appear to have caused much anxiety to the UN.
Outsiders cannot readily conceive the extent of the problems facing Cambodia’s justice system. There are virtually no laws: the Penal Code recognizes only 35 offences. The rudimentary and unfair system of criminal procedure that existed before UNTAC has not been amended. On all politically important cases, judges and prosecutors act on the instructions received from political superiors. The quality of education for judges and prosecutors is very low. There is virtually no policing organization: the rudimentary structure that exists consists of persons with hardly any training and very few facilities, often even without paper upon which to write down complaints. There are almost no forensic facilities, nor qualified persons to hold post-mortem inquiries; thus proof of cause of death is not required in a murder trial. Just 0.3 percent of the National Budget is allocated to the Ministry of Justice. The entire system is corrupted.
Only recently did administration of justice begin to appear among priorities for donors to Cambodia. In spite of this, to date very little work has gone on to meet the problem. Many basic laws may not be in place for a long time. Without laws, training programs for police, prosecutors and judges are of very little use. The inability to see the sheer stupidity of such exercises is itself an indication of the poor quality of the studies preceding such programs.
That the UN has taken an open position regarding its unwillingness to participate in the current arrangements for a genocide tribunal should act as an eye-opener for all concerned. It now owes a duty to the Cambodian people—as well as the international community—to make known its full position on the Cambodian system for administration of justice, and how it plans to facilitate reforms. The real tragedy in Cambodia will be if the UN continues to fail in this important task.
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* This article was written in response to “Cambodia – the UN casts a blind eye to justice??by Balakrishnan Rajagopal, appearing in the International Herald Tribune of 30-31 March 2002.
