Tribunal woes

Cambodian staff at the Khmer Rouge tribunal had not been paid since November so with a resolution out of sight, the patience of the translators ran out. As the court prepared on Monday, March 4, to hear the start of testimony from British writer Philip Short, author of "Pol Pot: The History of a Nightmare," the translators announced that they were on strike and walked out.

Khmer is one of the tribunal's three official languages along with English and French, and the interpreters' stoppage meant the court was forced to suspend its hearings. Next week's testimony from American journalist Elizabeth Becker was also postponed.

On the surface, the solution seems simple enough. The Khmer Rouge tribunal, more properly known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), is a hybrid comprised of international and Cambodian staff. Under the court's rules, the UN pays international staff, while wages for the national staff are the responsibility of the Cambodian government.

However, government spokesman Ek Tha said on Friday, March 8, that donors have paid local salaries at the court since its inception in 2006, and the government saw no reason why that should change. So why had donors stopped funding salaries?

"Donors complain about the financial crisis in their countries," he replied. "They have their own problems."

Ek Tha said Phnom Penh had paid around $15m in cash and in kind to the court since 2006, with $1.8m pledged for the current year. He said Cambodia's budgetary priorities meant it could not pay more, and he rejected the suggestion that long-standing accusations of corruption and political interference had caused donors to back away.

"The international community should come up with the financial contribution to the ECCC. That's very clear," he said.

Crossroads

The three surviving leaders of the Khmer Rouge deny charges of genocide, crimes against humanity and war crimes for their alleged roles in the deaths of some 2 million Cambodians during the movement's rule between 1975-79.

Anne Heindel, a legal adviser with the research organization Documentation Center of Cambodia (DC-Cam), said this week's events showed the court had reached a crossroads.

The lack of cash to pay national wages indicated that "donors are not willing to provide that funding any more," and had caused a standoff between the government and the international community. The health of the defendants was the second of "a number of very serious issues it has to face."

"The health of two of the three accused, it appears, is pretty precarious," Heindel said, adding that either issue could upend the case against the leaders.

The news that former foreign minister Ieng Sary had been taken to hospital was the court's second challenge this week. The 87-year-old defendant, who has heart ailments and a number of other health conditions, has been put on oxygen and is on round the clock care. His international defense lawyer, Michael Karnavas, said his client's condition was "very serious."

"I don't see him coming out of the hospital any time soon," Karnavas said.

Ieng Sary is the oldest of the three defendants, all of whom are in their 80s, and their health has long been a concern. Earlier this year, his two fellow accused were also hospitalized: Nuon Chea for acute bronchitis, and former head of state, Khieu Samphan, for fatigue and shortness of breath.

Later this month, the tribunal will hold special health hearings for Nuon Chea and Ieng Sary, at which specialists will testify as to the two men's fitness for trial.

During previous absences the defendants have waived their right to be present, a decision that meant hearings could continue without them. Karnavas said Ieng Sary would no longer issue a waiver, because his client felt his being present in court was the only way to ensure a fair trial.

"I think it's a charade to assume that someone is participating in a trial when they are incapable and are not there," Karnavas said. "So effectively the trial will have to come to a grinding halt until he's better."

Yet that might not happen. Karnavas is pessimistic that Ieng Sary will be in any condition to return to court in the near future.

"I think right now the situation is more or less ripe to start considering severance," he said, a decision that - should the court grant it - would effectively mean the end of the case against his client.

Rethink

As if the twin challenges of funding and poor health were not enough, the Trial Chamber was last month ordered to look again at its decision to divide Case 002 into a series of smaller trials. The first mini-trial, which is ongoing, has dealt predominantly with the forced movement of people.

Given that few people believe the second mini-trial will ever be heard, that means the crimes that most Cambodians were subjected to - forced labour, enslavement and forced marriage, among others - will likely never be heard. DC-Cam's Heindel said the reconfiguration being considered for the first mini-trial likely would not add much in the way of more representative charges.

"I don't expect we'll hear anything about genocide, about forced marriage, about work sites - things that survivors find quite important," she said.

Heindel predicted the first mini-trial would continue for most of 2013. After that, the judges would retire to consider the evidence against the defendants and finalize a judgement. That could easily take up much of 2014.

"So until that trial judgment is finalized, if one or the other of the accused dies, they will not have judgment reached against them," she said, adding that the tribunal would likely lose at least one defendant by then.

For the centerpiece case that put the senior surviving leaders of the Khmer Rouge on trial and that was meant to address the array of crimes committed across the country, Heindel concluded, such an outcome would tarnish the court's legacy.