"Hybrid" justice in East Timor, Sierra Leone, and Cambodia: "lessons learned" and prospects for the future.

I. INTRODUCTION

As is well known, the forty-five years after the completion of the Nuremberg and Tokyo trials produced a large body of new substantive international humanitarian law. However, because of the political impasses generated by the Cold War, there was a general failure to create an institutional framework in which that body of law could be applied. This situation changed radically in 1993-94, with the creation of the Ad Hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Ad Hoc International Criminal Tribunal for Rwanda (ICTR). The ICTY and the ICTR were "experimental," to borrow Justice Robert Jackson's phrase from Nuremberg, (1) in that they had no precedent to build upon other than their WWII counterparts, and those tribunals had been the product of a very different conflict and international political order. It is hardly surprising that, despite their considerable achievements, the ICTY and the ICTR did not provide a definitive institutional model for the implementation of international justice. On the one hand, they were destined to be superseded by the advent of the International Criminal Court, based upon the 1998 Rome Statute of the International Criminal Court. On the other hand, the U.N. Security Council, and the international community more generally, became aware of a number of features of the ICTY and the ICTR that militated against using them as a model for further ad hoc international criminal courts.

To address these perceived disadvantages and problems, the United Nations responded to subsequent demands for accountability for war crimes, crimes against humanity, and genocide by developing a series of new "experimental" courts. These are the so-called "hybrid" or "mixed" tribunals. They are called "hybrid" because they involve the combined effort of the international community and the national institutions of the country where they crimes were committed. The hybrid tribunals typically employ both national and international judicial actors and incorporate both domestic and international law in their statutes. (2) There was no precedent in the realm of international justice for these tribunals.

This article will discuss three hybrid tribunals: the Special Panels for Serious Crimes (SPSC) in Dili, East Timor; (3) the Special Court for Sierra Leone (SCSL) in Freetown; and the Extraordinary Chambers in the Courts of Cambodia (ECCC)in Phnom Penh. These three courts are all in different stages of their history: The trials before the SPSC in East Timor were completed in May 2005, the cases before the SCSL are well-advanced, (4) and the ECCC began pre-trial investigations in July 2006. The aim here will be to draw upon the "lessons learned" from the experience of seeking accountability in East Timor and Sierra Leone to assess the prospects and challenges facing the ECCC as it begins its task. An assessment of the experience of these three tribunals may also provide helpful insights for the two new hybrid tribunals currently being planned for Lebanon and Burundi.

Before turning to this task, it will be helpful to examine the factors affecting the performance of the ICTY and the ICTR that led to the creation of hybrid tribunals in the first place. Only by understanding the perceived problems the United Nations has reacted against will it be possible to appreciate certain features and shortcomings of the "hybrid" courts.

II. EXPENSIVE JUSTICE: THE ICTR, THE ICTY, AND THE DEVELOPMENT OF "HYBRID" ALTERNATIVES

To put the hybrid tribunals into proper perspective, it is important to first appreciate the institutional scale of the ICTY and the ICTR. This is the case because the scale, duration, and expense of these institutions were among the chief factors that led policymakers to eschew creating any further international ad hoc courts and drove them instead to experiment with smaller and less costly alternatives. While the ICTR was long the smaller, more neglected of the two tribunals, this has become increasingly less the case in regard to staffing and budget. The ICTR, however, still receives far less public and media attention. As a result, the dramatic quantitative, and to some extent qualitative, improvements in its performance over the past several years are not widely known.

The ICTY continues to receive far more attention, largely because it is conveniently located at The Hague in Europe, even though many of its trials have been of far lower-level perpetrators than has been the case at the ICTR, which is based in Arusha, Tanzania. While the trial of Slobodan Milosevic garnered considerable international media coverage, the ICTR trials of comparable legal and political significance, either already completed or currently underway, are generally neglected in the media. Reasons for this discrepancy include a general lack of Western and Asian interest in African affairs, the relative political and economic insignificance of Rwanda in particular, and a variety of other factors that are beyond the scope of this article. The salient point here is that while the ICTR was long the "poor sister" of the ICTY, by most quantitative measures this is no longer the case. Both courts are massive judicial institutions, with sizeable budgets, huge staffs, and dockets full of complex cases that will require prolonged periods to try. Both have been given a deadline of 2008 to complete all pending trials and 2010 to end the appeals process. (5)

As of June 2006, the ICTR had handed down twenty-two judgments against twenty-eight accused since its creation in 1994. (6) Twenty-five of these accused have been convicted, three acquitted. (7) The first trial began in January 1997. (8) Eleven trials involving twenty-seven accused are currently underway. (9) Fifteen are at the pre-trial stage. (10) The current number of staff positions at the ICTR is 1,042. (11) The two year budget for 2006-07 was $269,758,400, or approximately $135 million dollars per year. (12) In response to the United Nations' mandated completion date of the end of 2008, the ICTR has expedited its trial schedule through a variety of means and has negotiated with a number of governments about transferring cases to their domestic jurisdiction. (13)

Founded in 1993, the ICTY has sentenced forty-eight accused and acquitted five, while thirteen are before the Appeals Chamber as of January 17, 2007. (14) There are twenty-four accused currently at trial and seventeen accused at the pre-trial stage. (15) Thirty-six accused are deceased or have had their indictments withdrawn. (16) As part of the ICTY completion strategy, forty-two individuals have been transferred, are awaiting transfer, or had their cases referred for trial to national jurisdictions. (17) This completion strategy calls for the ICTY to concentrate on the trials of senior leaders, while transferring lower ranking indictees to national jurisdictions in the region. (18) As of December 21, 2005, the ICTY had 1,141 staff members. (19) Its two year budget for 2004-05 was $271,854,600 and for 2005-06 $276,474,100, or approximately $138 million per year. (20) Despite the addition of a considerable number of new (ad litem) judges and a variety of other measures to speed up trials, as with the ICTR, it is hard to imagine that all pending cases can be completed by the end of 2008.

As these brief statistics might indicate, the massive cost of these tribunals was one of the central concerns that led to the "experiment" with smaller hybrid courts. Apart from the budgetary concerns of the United Nations and donor countries, Rwanda has also raised the issue of what this very large sum of money expended on convicting a relatively small number of persons might have been able to do for one of the poorest nations on earth. We will see what strategies were adopted at the various "hybrids" to reduce costs and the size of court staffs.

Another serious concern that shaped the mandate of the "hybrid" tribunals involves the duration of the trials. The fiasco of the Milosevic case is perhaps the best known, but one need only consider the number of completed trials in the thirteen years since the creation of the ICTY to understand the concern. As we will see, the three "hybrid" courts of concern here were all given very limited temporal mandates. The ICTY and the ICTR were compelled in 2003-04 by the Security Council resolutions noted above to adopt strategies aimed at a completion of their trial proceedings and appeals by 2008 and 2010 respectively. (21) If not for the completion strategy mandate, one could imagine that trials would have continued at the ICTY and ICTR for many more years given the very large number of accused awaiting trial in 2003.

This raises issues related to not only the right of the accused to a speedy trial, but also the value of holding trials that go on for decades after the violence has ended. Assuming the tribunals meet the 2010 deadline, appeals will only be completed some seventeen years after the creation of the ICTY and sixteen years after the creation of the ICTR. A number of accused, including the most important ICTY defendant, Slobodan Milosevic, have died before proceedings against them could be completed. At what point does justice delayed appear to the victims of mass atrocities to be justice denied? It is difficult for the victims and others who suffered in a prolonged and horrible conflict to understand why justice takes so long and may not even be completed in their lifetimes. As we will see, this problem is particularly acute in the case of Cambodia where the crimes in question were committed more than a quarter century ago.

Questions concerning the value and meaning of such trials raise another issue closely connected to the decision to experiment with "hybrid" tribunals. The ICTY and the ICTR are both located outside of the countries where the atrocities they are adjudicating took place. This creates a number of challenges and difficulties, principally involving making the trials accessible and meaningful to those victims in whose name justice is pronounced. The first problem involves the inability of victims, ordinary citizens, or in many cases the press, from Rwanda, Bosnia, or Croatia to attend the trials. Locating a tribunal outside of the country virtually ensures that, though public in principle, it will not be accessible to those who should in the first instance be able to attend.

The second and related challenge has to do with what the tribunals refer to as "community outreach." This involves making the trials meaningful to the population on whose behalf justice is being done. Outreach is difficult enough when the tribunal is located in-country. In the case of the ICTY and the ICTR, it is a very formidable challenge to communicate what is happening in court to the citizens of the affected countries in a way that can make the process meaningful, let alone meet the articulated goals of the court in contributing to processes of reconciliation, stabilization, democratization, etc. For a number of years after their creation, the ICTR and the ICTY neglected the issue of outreach. They, and particularly the ICTY, have since undertaken fairly ambitious outreach programs, though the extent of their success is far from clear. In the case of Rwanda, outreach is made even more difficult because of the lack of television as a medium to disseminate information about the trials to the general population. (22)

A further difficulty involves the problem of what is often called national "ownership" of the process. (23) This term is typically used in two senses. The first refers to the extent to which the partners in the tribunal (national government or U.N. administration) control and bear ultimate responsibility for the judicial process and its proper functioning. (24) The second, and more extended, revolves around the idea that the citizens of the country in which the crimes occurred should feel some participatory connection to the trials, through, for example, the participation of their fellow citizens as judges, prosecutors, or defense counsel, or through coverage by their national media. (25) The promotion of this latter sense of ownership is vital if a tribunal is to have an impact on the often stated goals of promoting reconciliation, developing a culture of accountability, and creating respect for judicial institutions in a post-conflict society.

The possibility of trials having an effect on reconciliation, accountability, and the promotion of respect for the rule of law depends on effective outreach and other educational or capacity-building programs. Such success becomes all the more difficult when the justice process is perceived as taking place in a foreign court, without the participation of nationals of the countries in question. This problem is, of course, compounded when basic information about the trials and their results is lacking. For those individuals or groups linked to the perpetrators, it becomes too easy to dismiss the process as simply imposed by foreign countries and organizations who have misunderstood what really happened. Finally, the remote location of these tribunals from the countries where the crimes occurred also creates serious problems for witnesses and for the investigative process.

In short, for all of these reasons, a determination was made to consider alternative kinds of judicial mechanisms that would be quicker, more cost effective, and could better address the needs of the citizens of the post-conflict societies that desperately needed assistance. The following examination of the SCSL and the SPSC in East Timor will first consider what institutional mechanisms they adopted to address these concerns and to what extent these mechanisms succeeded in achieving the goals for which they were designed. The Article will then discuss what lessons may be learned from the experience of these two courts for the new hybrid tribunal in Cambodia.

III. STRUCTURES

A. The Special Panels for Serious Crimes in East Timor (SPSC) (26)

Following the toppling of the Suharto dictatorship in Indonesia in 1998, the initiation of a period of political reform led to the possibility for a referendum in East Timor on the choice of independence or continuation within the Indonesian Republic. Invaded by Indonesia in 1974 after more than four hundred years of Portuguese colonial neglect, East Timor had already experienced a brutal occupation that resulted in the deaths of as many as 200,000 persons from conflict related causes during twenty-five years of Indonesian rule. (27) Significant crimes were also committed by the anti-Indonesian resistance (FRETILIN/FALANTIL), though on a far lesser scale. (28) Deep political divisions between pro-independence groups and pro-Indonesian militias produced considerable tension and there had already been a number of serious incidents of violence in the months leading up to the popular consultation of September 1999, in which seventy-eight percent of the Timorese population expressed their will in favor of independence. (29) Following the announcement of the victory of the pro-independence movement, pro-Indonesian Timorese militias went on a rampage of violence that killed hundreds, destroyed some eighty percent of the buildings in the capital, Dili, and drove more than a third of the population from their homes. (30) While some crimes were committed by pro-independence forces as well, the overwhelming majority of the violence was perpetrated by pro-Indonesian forces. (31) These militias had been financed, organized, trained, and equipped by the Indonesian military and civilian authorities in East Timor. (32) Militia attacks were orchestrated and supported by the Indonesian armed forces (TNI) and civilian administration, and some TNI personnel also directly participated in a number of serious incidents of violence. (33) The violence was observed and heavily documented by U.N. personnel on the ground (to organize and secure the popular consultation) as well as in subsequent reports by international and Indonesian commissions of inquiry. (34)

At Indonesia's request, in mid-September 1999 the Security Council created a multinational force, International Force East Timor (INTERFET), to restore order in East Timor. (35) INTERFET was succeeded by a United Nations Transitional Administration for East Timor (UNTAET), and in response to international outrage over the September violence, this administration was mandated to create a judicial mechanism to achieve accountability. (36) This mandate was extremely general, however, and gave no guidance as to the scope or duration of the judicial process.

In June 2000, UNTAET created a tribunal to try such cases, the SPSC, composed of two international judges and one Timorese judge. (37) UNTAET decided to designate this court as a Special Panel of the Dili District Court, thus placing it within the domestic legal system of East Timor that it was in the process of creating. (38) This legal system consisted of four District Courts and a Court of Appeals. Because the SPSC was located within the Dill District Court, appeals were heard by the Timorese Court of Appeal, also composed of two international judges and one Timorese judge. (39) The SPSC was invested with exclusive jurisdiction over what were defined as "Serious Crimes" by the court's statute. (40) These consisted of genocide, crimes against humanity, war crimes, torture, sexual violence, murder, and so on, committed between January 1 and October 25, 1999 in East Timor. (41)

In keeping with its "hybrid" nature, not only the composition of the SPSC was mixed, but so was the law it applied. The SPSC's Statute incorporated slightly modified provisions of the Rome Statute of the International Criminal Court (Rome Treaty), defining genocide, crimes against humanity, and other crimes, as well as international conventions, norms, and jurisprudence. (42) It also incorporated Indonesian law as governing all issues not covered by the international provisions. (43) Indonesian law was incorporated because virtually all of the lawyers in the country had been educated in Indonesia, and because Indonesian law had been applied in East Timor for twenty-five years. While the Timorese judges appointed to the SPSC had all graduated from Indonesian law schools, none of the international judges had any knowledge of Indonesian law or of the national language, Bahasa Indonesian. (44) The Timorese appointees, on the other hand, were all recent law school graduates with little legal experience and none had ever served as a judge. (45) The prosecution function was entrusted to the Serious Crimes Unit (SCU), located within the public prosecution service under the Prosecutor General of East Timor. (46) The head of the SCU was designated the Deputy Prosecutor General for Serious Crimes. (47) No corresponding unit for the defense function was created until September 2002, when the shortcomings of using a mix of international and Timorese public defenders led to the formation of the Defense Lawyers Unit within the United Nations Mission of Support in Timor-Leste (UNMISET), the successor mission to UNTAET.

From 2000-05, the SPSC completed fifty-five trials involving eighty-seven defendants. (48) They convicted eighty-four and acquitted three. (49) One of those acquitted was subsequently convicted by the Court of Appeal in a controversial ruling. (50) This represents a very high rate of conviction, when compared, for example, with five acquittals and forty-eight convictions at the ICTY. (51) The work of the SPSC was cut short prematurely, when in mid-2004, the Security Council set the closure date of UNMISET and the SPSC for May 20, 2005. (52) Of 1,400 estimated murders, only 572 had been captured in indictments at that point, and 514 investigative files remained open. (53)

From its foundation, the Serious Crimes process faced a number of structural problems. One of the most basic was the issue of what Chief Justice Phillip Rapoza, the Coordinating Judge of the SPSC in 2004-05, has aptly called "ownership." (54) The SPSC had been located within the Timorese justice system and it was never made clear how responsibility for them was to be divided between the Timorese government and the United Nations (UNTAET/UNMISET). This lack of clear "ownership" provided a mechanism for both sides to avoid responsibility and produced very serious consequences. For example, the SPSC did not have reliable electricity until mid-2004 because UNMISET and the Timorese government could not agree on who should repair the generator or pay for fuel. (55) Since publicly available electricity in Dili was at this time extremely sporadic (even modest hotels had their own generators), computers, fax machines, photocopiers, and electric lights were frequently unusable. It was only the persistent efforts of Judge Rapoza that resolved this problem, four years into the trial process. Other problems were not solved so easily: The SPSC never had anything remotely like adequate security, whether for the building, the courtroom, or the judges, because the Timorese government refused to provide it, and would not allow U.N. personnel to guard Timorese buildings. As Judge Rapoza has noted, "[N]o security assistance was ever provided by the U.N. mission for the premises. This was the case even when the court was besieged by a large number of protestors and the court gates had to be closed to prevent an incident." (56)

Perhaps the most dramatic example of the way in which lack of clear ownership can lead to the avoidance of responsibility came in regard to the arrest warrant issued against Indonesian General Wiranto, who had been Commander-in-Chief of the Indonesian Armed Forces (TNI) during the 1999 violence. The Timorese Prosecutor General, Longuinhos Monteiro, had been complaining to the press for months that the court was dragging its feet on the warrant. Then, when it was finally issued, it was disowned immediately by both the Timorese side (including the Prosecutor General) and the United Nations. The U.N. representatives, in both Dili and New York, stated that the SPSC was a Timorese court, and that the United Nations had had nothing to do with the warrant. (57) The Timorese, on the other hand, refused to forward the warrant to INTERPOL for the issuance of an international arrest warrant. (58) Two weeks later, the President of East Timor, Xanana Gusmao, flew to Bali to meet his "dear friend" Wiranto, and publicly embraced him in front of photographers. (59) The lack of support by the United Nations and the Timorese government for the pursuit of high level perpetrators located in Indonesia meant that only low level Timorese, mostly village militia members, ever appeared before the SPSC.

Dual "ownership" of the process also had other serious consequences involving recruitment, management, and accountability. For example, in 2002-03 the Court of Appeal, the only appellate court in East Timor and the highest court in the land, did not function for twenty-one months because the United Nations and the Timorese government could not agree on appointments. (60) This meant that, with one exception, no appeals from convictions or from illegal pre-trial detention hearings were heard for this entire period. (61) In addition, serious questions about the competence and independence of various international appointees, and particularly international judges in the Court of Appeal, have repeatedly been raised. (62) The Timorese government's preference for hiring Portuguese speakers represented an additional and persistent obstacle for already flawed U.N. recruitment practices. (63)

B. The Special Court for Sierra Leone (SCSL)

The creation of the SCSL similarly arose from a demand for accountability for those responsible for a brutal ten-year civil war (1991-02) (64) in which tens of thousands of civilians were murdered, tortured, raped, and mutilated. (65) The systematic amputation of hands, arms, and legs by rebel groups participating in the conflict gained worldwide notoriety, as did the "blood diamonds" associated with the conflict, and led to widespread demands for some process of judicial accountability for those responsible. (66) The establishment of the largest peacekeeping force in the history of the United Nations also reinforced a commitment to achieving a lasting peace in Sierra Leone. (67) Many observers considered a judicial process focusing on key figures in the conflict to be an essential component of producing long-term stability. (68)

Following the re-establishment of a national government of Sierra Leone, President Ahmed Tejan Kabbah, in mid-2000, requested that the United Nations establish a justice mechanism. Negotiations between Sierra Leone and the United Nations resulted, on January 16, 2002, in the creation of a treaty-based institution, the SCSL. (69) Unlike the SPSC in East Timor, the SCSL was given a clear mandate: to try those who bear "the greatest responsibility" for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone after November 30, 1996. (70) This mandate relieved the SCSL of the burden of deciding whether to pursue low- and mid-level perpetrators. Only eleven individuals have been indicted, of whom nine are currently on trial, and one, Charles Taylor, is in pre-trial detention at The Hague. (71) The SCSL was given a three-year mandate to complete its trials. However, the first trial did not begin in Trial Chamber 1 until almost two years into the mandate, on June 3, 2004. (72) Trial Chamber 2 was not sworn in until six months later, on January 17, 2005. (73) The court's three-year mandate expired in June 2005, but because all three trials were still ongoing, it was inevitable that the mandate would have to be extended until their completion. It is likely that two of these three trials will be completed by the end of 2006 and the third in the first half of 2007.

The SCSL is composed of two trial chambers and an Appeals Chamber. (74) Each trial chamber has three judges, one of whom is nominated by the government of Sierra Leone. (75) This judicial nominee need not be a Sierra Leonean. There is, in fact, only one Sierra Leonean in the trial chambers, Justice Thompson, and only one Sierra Leonean judge in the Appeals Chamber, Justice King. (76) Trial Chamber 1 is currently hearing two cases, in six-week intervals: one against alleged members of the Revolutionary United Front (RUF) and the other against alleged members of Civil Defense Force (CDF). (77) Trial Chamber 2 is heating the case against accused members of the Armed Forces Revolutionary Council (AFRC). (78) The prosecution team is entirely international, but the defense teams are composed of both international and Sierra Leonean staff members, an arrangement which has caused considerable problems in some cases. The administration of the SCSL under the Registrar is heavily staffed by Sierra Leoneans, in keeping with the policy of the former Registrar, Robin Vincent, to use the SCSL as a capacity-building mechanism for the national judicial administration. (79)

A number of structural features that distinguish the SCSL from the SPSC in East Timor have already appeared. First, the SCSL is guided by a clearly defined mandate, which meant that it would focus its resources on a very limited number of cases. In East Timor, the Serious Crimes Unit issued 391 indictments, ranging from the lowest level perpetrators to the upper echelons of the Indonesian chain of command. (80) Further, the SCSL's mandate was temporally limited, giving it a sense of the time frame within which it had to operate. Of course, that time frame has been exceeded, and will be even more so with the upcoming trial of Charles Taylor. In East Timor, it was never clear from year to year how long the process would last, and the decision to terminate had no relation whatsoever to the progress of the proceedings. When the Security Council decided in mid-2004 to terminate all SPSC trials by May 20, 2005, this decision had little or nothing to do with where the court was in the trial process. Because of its limited mandate the SCSL began formulating a completion strategy early on. In East Timor, on the other hand, it is fair to say that there never was an overall completion strategy for the trial process and its aftermath.

The fact that the SCSL was created through a formal agreement between the national government and the United Nations also helped to clarify the issue of ownership and avoid the kinds of problems that beset the SPSC in this regard. The U.N.-appointed administration runs the SCSL without any of the kinds of interference from the national government that so often bedeviled the process in East Timor. Further, as is the practice at the ICTY and ICTR, the United Nations appointed a Registrar, Robin Vincent, as the chief administrator officer of the SCSL. This meant that one person had the authority to make crucial personnel, budget, and policy decisions and also bore responsibility for central court functions and for the performance of the various units that make up the court. In East Timor, on the other hand, no such position ever existed. No one occupied the kind of managerial position held by the Registrar or had the authority to speak for the court and represent its interests. This problem was exacerbated by the failure to create a position of President for the Court, as was done in Sierra Leone. Only after more than three years into the process was a Judge Coordinator first appointed, but the position still lacked a mandate empowering the holder of that office to take a leadership role in dealing with the severe challenges facing the Court. (81)

Issues of ownership and temporal mandate at the SCSL are also related to a further feature of that institution that distinguishes it from its counterpart in East Timor. While the SPSC was funded directly from the U.N. mission's budget and thus had to compete with the many other priorities attendant upon rebuilding a country in a post-conflict context, funding for the SCSL came through the voluntary contributions of concerned nations. (82) These countries created a Management Committee, which includes the major donor countries that fund the Court and consists of representatives from six countries plus Sierra Leone. (83)

The Committee oversees the budget, dealing directly with the Registrar and with the Chambers. While providing oversight, it also has the obligation to ensure that the SCSL has the resources it needs to complete its work. The relationship between the Court and the Committee has not always been an easy one; tensions have arisen because "hybrid" courts by their nature tend to be under-funded, because important court functions like outreach, legacy, and training have not appeared essential to the Committee, and because the judicial process is taking longer than foreseen in its mandate. The Management Committee has pressed the Court continuously not only on budgetary matters, but particularly on the issue of the speed and duration of the proceedings. (84) Some of the judges have complained that this pressure by the Committee constitutes interference and threatens to infringe the independence of the Court. (85) There is no question, however, that it has added a dimension of urgency and accountability that was totally lacking at the SPSC for most of its existence.

IV. RESOURCES AND MANAGEMENT

A. The Special Panels for Serious Crimes for East Timor

As was indicated above, even the most basic resources were lacking at the SPSC, especially until mid-2004. In 2001, the total budget for all units involved in the Serious Crimes Trials for East Timor was $6.3 million. (86) None of these funds were allocated for the defense function. (87) By 2004-05 the budget had grown to $7-8 million, thereby reflecting the commitment of the Special Representative of the Secretary General of the United Nations (SRSG), Sukehiro Hasegawa, to improve the resources and performance of the court. (88) Embedded within a peacekeeping mission, the SPSC has suffered since its creation from being a low budgetary priority in comparison with more "urgent" tasks. (89)

Apart from unreliable electricity and security, noted above, the inadequacy of resources included a lack of trained personnel in translation, interpretation, registry, and transcription. The Court further lacked adequate case and file management systems, court calendar and scheduling arrangements, and research and library reference resources, etc. (90) That these resource deficiencies affected the quality of courtroom proceedings and thus had a direct impact upon the right of the accused to a fair trial can be made clear through a few examples. For instance, for the first two years of trials, there were no transcripts of the proceedings. The "official" record of the trial consisted of notes taken by one of the judges. (91) Apart from potential conflict of interest issues, some of the judges were not native English speakers but took notes in that language anyway. (92) The notes were thus inevitably incomplete and inaccurate, yet they were the only record used on appeal. (93) Even after official transcripts were introduced, there were no professional court transcribers on the staff, as budgetary considerations mandated that they would be too expensive. (94)

In a context where up to five languages were used simultaneously in the courtroom, accurate and complete translations were necessary for a fair trial. (95) The parties to the trials were well aware of the inaccuracies which this inevitably produced. For most of the life of the institution, the translators at the SPSC all lacked professional training, and none had previous experience translating in legal contexts. Some had never even worked as translators before. (96) In mid-2004, four years into the trials, the SPSC hired its first professional translator. Despite significant improvements, very serious translation problems persisted to the end of the trials. (97) The first professionally trained Head of Registry/Court Clerk was hired at the same time. (98) Without the appointment of Judge Rapoza as Coordinating Judge in March 2004 even this probably never would have happened. The difference that his appointment made for virtually every aspect of Court performance highlights the inadequacy of the previous recruitment process and the ensuing failures of management and leadership. (99)

Resources issues affected all other units in the Tribunal as well. Serious Crimes Unit investigators were not given vehicles for field investigations until early 2002 at the insistence of newly appointed Deputy Prosecutor General for Serious Crimes (DPGSC), Siri Frigaard. (100) Despite her repeated request, UNTAET refused to provide SCU prosecutors with translators or file investigators with cameras, although they are indispensable for crime scene investigation. (101) She explained that because of the lack of an experienced and centralized court administration, budget decisions were made by U.N. staff who "do not understand anything about a court process." (102)

The defense function, however, was even more inadequately staffed and equipped. In the two years before the creation of the Defense Lawyers Unit (DLU) in September 2003, the defense function was not housed within UNTAET. (103) It appears simply to have not occurred to the U.N. administration that provision had to be made for defense, particularly in the post-conflict situation where no experienced lawyers were available. For this reason, the defense had quite literally no budget for even the most essential matters, including sending investigators or counsel into the field to locate and interview witnesses, bringing witnesses to Dili to testify, etc. (104) The defense called no witnesses in the first fourteen trials (almost one-third of the total of fifty-five), and this was also the case in many later trials as well. (105)

The defense function was assigned to inexperienced recent Timorese law school graduates, who, for the most part, lacked any prior courtroom experience. They were supposed to work together with international defense counsel as mentors, but no provision was made for translators so that they could communicate. The international defense counsel also varied widely in qualifications and experience. The result was so disastrous that the entire operation was scrapped and the DLU was created to improve the adequacy of representation for the accused. (106) While there was a significant improvement, serious problems nonetheless remained. The DLU also suffered from a lack of resources, including inadequate numbers of experienced investigators and insufficient research infrastructure. Equality of arms was a serious issue from beginning to end. Because UNTAET did not take responsibility for providing an adequate defense function from the very beginning, the dual ownership system produced a situation where international standards were clearly not met for at least two and a half years. (107)

In regard to resources the forgoing discussion should suffice to indicate that the Serious Crimes process inhabited an entirely different judicial world than the ICTY and ICTR. Nonetheless, it completed more trials in five years than has the ICTY in thirteen, and on a tiny fraction of the ICTY budget. This "efficiency" has been taken as an indication of "success" by many U.N. bureaucrats in Dili and New York, who have pointed to the trials as a model operation. The comparison is, of course, in many ways inapt. The ICTY and ICTR have, for the most part, dealt with cases of far greater complexity and with far more highly placed defendants. If the almost 200 Indonesian army officers under indictment by the SPSC had been brought into the custody of the court this situation would have looked very different. But this is hardly the point. Even for low ranking defendants, as in the Tadic, Erdemovic, Furundzija, or Aleksovski cases, the proceedings before the ICTY lasted far longer and were of far broader scope and intensity. (108) Trials for murder at the SPSC on the other hand often took only two to three trial days. The number of witnesses called was nearly always very small, the defense case typically abbreviated and weak. The conviction rate was high at 97.7%. (109) Should this necessarily provide grounds for self-congratulation and an indication that "hybrid" tribunals on shoestring budgets are the answer to the dilemmas posed by the massive scale of the operations at the ICTY and ICTR?

The question that must be asked instead is: "Yes, the Special Panels were cheaper and faster, but at what cost?" The SPSC failed in significant respects to meet international standards. In a number of trials, and quite consistently in those conducted before 2003, there was clearly not adequate protection for the rights of the accused. (110) This is also particularly true of the decisions of the Court of Appeal in serious crimes cases. (111) The failure to maintain international standards consistently and the lack of a fair trial in a significant number of cases casts doubt upon any claims of "success" for this model of hybrid tribunals. A court is not an assembly line where success is measured by units processed per dollar and per day, week, or year.

The lack of sufficient attention to the rights of the accused was not the only such failing. Despite their statutory mandate to provide appropriate witness protection and support services, the SPSC had no witness and victim unit worthy of the name. (112) The entire staff allocation for this vital function was one person. It took her more than a year to obtain a vehicle, even though transportation is essential for the performance of such a job. (113) It took even longer to obtain one Timorese staff support assistant. (114) Her conclusion as to her three years of experience running this unit was that, "witness protection and security were not taken seriously." (115) As a result, witnesses often traveled to court in public transportation or in prosecution minibuses. They often traveled with the accused against whom they were going to testify. This even occurred in one sexual violence prosecution where the victim traveled for several hours to Dili in the same vehicle with the man accused of having raped her. (116) There was no provision for psychiatric counseling for victims or witnesses, or for dealing with cases of trauma or re-traumatization occasioned by giving evidence. The head of the Witness Protection Office repeatedly requested these and other resources and protective measures but such requests were always denied. (117)

As noted above, one of the advantages of "hybrid" tribunals is that they are located within the country where the violence took place and thus are better placed than the ICTY or ICTR to convey to the victims and local population more generally the importance of the process of judicial accountability. Such community outreach function was necessary for the Timorese people to learn of and understand the activities of the Court. Unfortunately, in East Timor there was virtually no provision for such a program. The lack of a central court administration meant that a general outreach or public affairs office for the court as a whole was never created. With no budgetary provision or mandate to make the trial process meaningful to the people it was supposed to serve, outreach became the tertiary responsibility of the one staff person who was the Public Affairs Officer for both the Serious Crimes Unit and the SPSC. (118) Because of the manifest lack of interest of the Timorese government in the United Nations' serious crimes trials, nothing was done from their side to educate the public about the trials. The dual structure also allowed the United Nations to claim that outreach was the responsibility of Timorese institutions. (119) In 2002-03 under Siri Frigaard, Deputy Prosecutor General for Serious Crimes, there were modest though significant attempts to make the work of the SCU more widely known to the Timorese people, but this never developed into a full outreach program and largely lapsed after her departure. (120) Ironically, the only serious attempt to communicate with the Timorese public came in the last three months of the trials (March-May 2005), when Deputy Prosecutor General for Serious Crimes, Carl Da Faria, visited eleven communities where atrocities had occurred to explain why the United Nations had ordered the serious crimes trials to close down in mid-process. (121)

While it is clear that the Serious Crimes trials provide an example of how a significant amount of judicial activity may be completed on a very small budget, they also indicate the risks attendant upon this strategy. It is to the credit of the many outstanding individuals who put years of effort into overcoming difficulties that the East Timor justice process accomplished as much as it did. An evaluation of this process, however, also reveals that a lack of resources translates into the absence of some vital court functions, and mediocrity or worse in many others. Ultimately, it is the accused, the victims, and the people of East Timor who paid the price for the woeful under-funding of too many aspects of the trials. "Justice" that is obtained too cheaply risks becoming no justice at all.

B. The Special Court for Sierra Leone (SCSL)

The SCSL, while only about one-fourth the size of the ICTY or ICTR, nonetheless enjoys vastly greater resources, both absolutely and in relation to numbers of cases and indictees, than the SPSC in East Timor. In fiscal year 2004-05 the SCSL budget was $29,963,685, and for 2005-06, it was to be reduced to $25,539,700. (122) In addition, it received a purpose built modern infrastructure housing all of the units of the court (including the detention center) within one heavily fortified compound. In this manner, despite the impermanence of the administrative structures, it resembles far more the ICTR rather than the situation in Dili, East Timor where the various components of the court were scattered all around the city. More importantly, the SCSL was provided with a custom-built ultramodern, state-of-the art courtroom, with two trial chambers fully electronically equipped with streaming video, audio, ethernet, separate translation booths, and secure holding rooms. Although the SCSL engages in a constant struggle for sufficient resources, it has succeeded admirably in so many areas where the SPSC failed. This is due to having resources more commensurate to its task, far better organization and management, and better external support. In addition to infrastructure, both the Office of the Prosecutor and the two Trial Chambers enjoy staff resources that would have been the envy of their counterparts in East Timor. In the Chambers, for example, the provision of highly qualified legal officers and support staff have resulted in a generally far higher professional and jurisprudential standard in written decisions than was the case at the SPSC, where the judges lacked such assistance and basic research facilities.

The kinds of resources enjoyed by the SCSL have enabled it to pursue the justice process in a manner consistent with international standards. Beyond this, the SCSL has proved to be an important innovator in a number of areas of international tribunal practice. In some instances, in order to do this, it has had to actively seek funding outside of its U.N. budget. While the SCSL is clearly not without its problems and difficulties it has nonetheless been able to provide the accused, witnesses, and victims with a justice process that meets expectations for a U.N. sponsored court, far more consistently than was the case in East Timor.

For example, one of the innovative features the SCSL created was the Defense Office, which the SCSL has called its "fourth pillar." (123) Headed by the Principal Defender, it was "intended to secure the rights of suspects and accused persons and provide a structural counterbalance to the Prosecution." (124) Created under Rule 45 of the SCSL's Rules of Procedure and Evidence, the aim was to promote the principle of "equality of arms" by providing administrative and substantive resources for the defense function. (125) The SCSL was the first international tribunal to develop such an office and its example, as we will see, has been followed by the ECCC.

All of the nine defendants in the three trials currently underway at the SCSL claimed to be indigent and were assigned counsel by the Principal Defender. (126) Each accused has a defense team of senior and junior lawyers that includes international and Sierra Leonean defense counsel. The team members are drawn from a list prepared by the Defense Office of experienced defense counsel who have indicated their willingness to be assigned to such cases. (127) Each team is provided through the Defense Office with funding for both Sierra Leonean and international investigators. This office thus functions differently from the Defense Lawyers Unit in East Timor, where all of the defense counsel representing accused were full-time employees of the U.N. mission and the Unit itself employed a small number of investigators, who had to be shared by all of the defense counsel. (128)

While the provision of assigned counsel through the Defense Office has provided greater independence and more highly qualified lawyers than was the case in East Timor, there are also various drawbacks, including the fact that some of the senior international defense counsel do not attend trial every day the court is in session, but instead fly in periodically from Europe. This has produced problems of coordination with their teams as well as a situation where the junior members of the team may be far more familiar with the case, since they attend trial every day. The Principal Defender has not supported their request to be permitted to address the Court and examine witnesses, despite the fact that many observers feel this would clearly be in the interests of the accused. (129) During the prosecution phase of the trials, the senior Sierra Leonean members of two of the teams appeared unwilling to rely upon the careful preparations of cross-examination by the junior members of the team, with an inevitable loss in effectiveness. (130) Some defense counsel have also complained that the Defense Office has not provided them with promised support, for example in the form of research and expertise in International Humanitarian Law. (131) Thus, while the structuring of the defense function at the SCSL, as well as the vastly greater resources made available to defense teams, represents a far more significant commitment to equality of arms than was the case in East Timor, there are nonetheless problems with this new model that remain to be resolved.

Other crucial support services have enabled the SCSL to follow international best practices and to develop significantly innovative programs. In contrast to the one-person unit in East Timor, the fifty-five person staff of the Witness and Victim Support Unit of the SCSL provides a full range of protection, counseling, and support services from the investigation stage to long after the witnesses' testimony is over. The Unit is equipped with twenty-three safe houses and other secure premises located around Freetown, multiple unmarked vehicles for anonymous pickup and transfer of witnesses, a separate entrance into the courtroom, and multiple levels of identity protection (according to the need in each case) when the witness is testifying. (132) Additionally, a witness protection officer is in the courtroom observing the witness at all times to make sure that there is an interruption in the proceedings should the witness become overwrought or need professional assistance. (133) None of these measures were available to witnesses in East Timor. Further, the Unit provides financial support to the witnesses before, during, and after trial, according to need and circumstance. (134) Relocation within or outside of Sierra Leone can be arranged for particularly vulnerable witnesses, as can other forms of post-trial protection and support. (135) A full-time professional psychologist, with a clinical specialization in dealing with trauma, leads an office that provides psycho-social support. (136)

In East Timor, there were numerous documented cases of witness intimidation, and there were certainly witnesses who had been traumatized by their experiences and may have been re-traumatized by testifying in court. (137) Yet, none of these kinds of measures were available at the East Timor SPSC. The SCSL did not have an adequate budgetary provision for a witness unit of this scope, so it sought and received additional financial support from the European Commission. (138) Thus, if there is proper leadership and initiative, budgetary limitations need not necessarily result in an inability to provide crucial services.

Outreach represents another area where the SCSL, despite budgetary constraints, has developed innovative and effective programs. The outreach function of the Court is not funded through the U.N. budget. Rather than letting the matter rest at that, as was done in East Timor, the Registrar managed to raise sufficient funds from the European Commission, and the Open Society Institute of West Africa, to develop perhaps the most innovative outreach and public affairs program at any of the tribunals. (139) The Outreach Office has a Director and eight staff. They are all Sierra Leonean because the Court has made capacity-building one of its major goals. The outreach program uses a network of regional offices across the country and has developed a wide variety of educational programs for schools and the general public, as well as town-hall meetings, radio and television programs, seminars, training, and "Accountability Clubs." (140) Town-hall meetings, as of January 2005, had been organized in 450 communities. (141) Likewise, the Public Affairs office has a large Sierra Leonean staff. (142) The Assistant Director of Public Affairs was, until mid-2005, an American filmmaker who made a bi-weekly thirty-minute video about what was happening in each of the trials. The videos were shown in community meetings around Sierra Leone by the regional outreach offices and followed by community discussions with court staff. After the filmmaker's departure from the SCSL, the film project was entirely staffed by Sierra Leoneans who had been trained by her. (143) Public Affairs has developed a number of other innovative initiatives, including a "Radio Justice" project that has received support from the BBC Foundation. (144)

The preceding discussion of translation and transcription at the SPSC in East Timor emphasized the way in which failure to support these technical services had a direct impact upon the quality of the trials and the rights of accused. (145) The SCSL has, in this area, made significant efforts to meet international standards. In regard to translation, for example, the Court employs the kind of simultaneous translation systems found in other multilingual international tribunals. In order to ensure ongoing training of the translation staff and monitoring of the quality of translation, the Court retained the services of a Swiss professor of linguistic anthropology, who specializes in the languages and dialects of Sierra Leone, to train the translation staff and to work with them on an ongoing basis to improve their ability to translate colloquially and with accuracy. (146) To take a final example, transcripts are prepared electronically by trained transcribers and are available the same day. The judges and the defense and prosecution teams receive the transcripts from the morning session for review during the noon recess. Everyone in the court compound can watch the trials on streaming video in their offices and call up transcripts, as well as other documents, via the Court Management Database. Reflecting upon the gross discrepancies between these two U.N. "hybrid" tribunals, one is prompted to ask why such effective programs were possible in Freetown and not in Dili?

V. LESSONS LEARNED

A number of factors contributed to the relative success of the SCSL in comparison with the SPSC in East Timor. Reflection upon these factors can provide useful guidance for the Khmer Rouge trials now commencing in Cambodia as well as for other hybrid courts.

The first advantage that the SCSL enjoyed was that it operated independently of the U.N. mission to Sierra Leone. It had to fight for resources, but it fought with its management committee, not with mission bureaucrats who had no real understanding of how a court functions and no apparent interest in its task, as was the case in East Timor. (147) Embedded within a mission that had many other priorities following the rampant destruction attending the 1999 East Timor vote for independence, especially for its first three years, the SPSC constituted only a small and very marginal component of the international operation. Further, the agreement between the United Nations and the government of Sierra Leone placed responsibility for the Court squarely upon the United Nations, whereas in East Timor, the lack of clarity about the question of "ownership" allowed both the Timorese government and the U.N. mission to avoid responsibility when it was convenient to do so.

Second, and even more important, is the factor of leadership and effective management. UNTAET never made provision for a Registrar, as is the practice at the SCSL, ICC, ICTY, and ICTR. This meant that the SPSC had no equivalent of a CEO. Decisions about resources were made by bureaucrats who lacked the necessary knowledge and commitment to the institution. The SCSL, on the other hand, recruited Robin Vincent, who brought to Freetown more than thirty years of experience in British court administration. He arrived on the first helicopter of seven persons to select a site, and he was responsible for building the Court literally from the ground up. (148) He had the energy, backbone, and determination to make it a court worthy of its name and was prepared to put his job on the line in order to ensure that the Court had what it needed to meet appropriate standards. This kind of administrative expertise and commitment never existed in East Timor, where there was neither a centralized court administrative structure, nor effective leadership and oversight. Where funding was lacking in the budget for important programs at the SCSL, the Registrar and other court officers sought and received financial support elsewhere. In East Timor, Siri Frigaard also pursued outside financial support when she headed the Serious Crimes Unit. Nevertheless, such initiatives were the exception rather than the rule.

Again in contrast to the SCSL, in East Timor UNTAET did not create a President or similar position, empowering a judge to speak for the Chambers. When the position of Coordinating Judge was finally created in early 2003 in East Timor, it lacked the authority and prestige of the post of President at the ICTY or ICTR. When Judge Rapoza became Coordinating Judge in early 2004 (having been appointed to the SPSC in December 2003), it became immediately apparent what a difference leadership and initiative could make. This happened far earlier in the Serious Crimes Unit when, in January 2002, Siri Frigaard was appointed Deputy Prosecutor General for Serious Crimes. She immediately undertook a complete and transformative re-organization and reorientation of the prosecution and investigation efforts. (149)

The underlying lesson here is clear: Individuals can make a difference and proper recruitment is vital. The United Nations is notoriously weak in recruitment, and in East Timor this was complicated further by Timorese interference on grounds having nothing to do with experience and qualifications. Rather, the interference was motivated by cronyism and concerns over the national origin of potential recruits. (150) When individuals like Judge Rapoza and Siri Frigaard were appointed, they made significant contributions, but they came in late in the process and had to fight an uphill battle just to get things to a level that should have been the starting point. (151)

Of course, in Sierra Leone, there were also individual examples of incompetence, laziness, and the like. Additionally, there were structural problems, particularly in the defense function. (152) But in the administrative area the crucial difference was that there was effective accountability imposed by the Registry. Numerous section heads were fired for lack of effective performance. (153) This was unheard of in East Timor. The Registrar also recruited highly qualified and experienced staff for key positions and fought to get the resources necessary to attract them and to enable them to do their jobs. Saleem Vahidy, for example, had been Head of Witness and Victim Protection at the ICTR for more than three years before coming to the SCSL. The experts employed as psychologists, filmmakers, and linguistic consultants provide further examples. They had no counterparts in East Timor. A crucial factor here appears to have been that the SCSL had much greater freedom in recruiting than did the SPSC because it could operate with greater independence from the U.N. system.

A third vital factor is political will. To put it somewhat crudely, the U.N. Secretariat and Security Council wanted the SCSL to succeed but appeared largely indifferent to the qualitative performance of the SPSC in East Timor. Why was this the case? It was in large measure due to the fact that permanent members of the Security Council were the major backers and donors for the SCSL and that they created a Management Committee that demanded performance and accountability. The fact that the United States and the United Kingdom were major donors is not coincidental if one looks at the first key appointments outside of chambers (recruitment of judges is a more complicated matter): David Crane of the United States as Chief Prosecutor and Robin Vincent of the United Kingdom as Registrar. Major U.N. players made no comparable national investment in the Serious Crimes Process in East Timor. The personal conclusion that I have come to is that because there were no major countries committed to the success of the East Timor SPSC, the United Nations (UNTAET/UNMISET and Secretariat) was fully aware of the very serious problems in Dili but thought that it could get away with a process that did not meet international standards. The tragedy is that it was right. However, there was a price to be paid by the people of East Timor. This price came not only in the form of the lack of the kind of justice process that they deserved, but also in the recent violence that has again wracked the country since April/May 2006. (154) It is not far-fetched to conclude that the general lack of respect for the rule of law, due process, and fair trial standards manifested by the Timorese government and its U.N. supporters in their indifference to egregious problems in both the "hybrid" and domestic justice systems has played a role in the decision of citizen and military groups to take the law into their own hands in recent months. (155) Governments that do not respect the law cannot expect that their citizens will do otherwise.

In addition to the factors discussed above, a clear mandate and effective leadership in the Office of the Prosecutor enabled the SCSL to focus its resources effectively on a small number of cases and to develop an appropriate prosecution strategy. The SPSC in East Timor received no defined mandate from the Security Council or from UNTAET. As a result, much time and money was wasted in 2000-2001 because during this period there was, effectively, no prosecution strategy. (156) It is very difficult for a court to recover from a bad start, and even when Deputy Prosecutor General for Serious Crimes Siri Frigaard reshaped the Serious Crimes Unit and gave it a coherent focus, so many cases were underway that some diffusion of effort inevitably continued. (157) The SPSC had shamefully few resources at its disposal, but a clearer mandate and strategy would have enabled it to use those it had more effectively.

A final factor involves the inevitable political dynamics that shape the context in which all tribunals operate. This does not, of course, mean that the results of individual trials are politically determined. Rather, it means that the framework in which the tribunals must produce fair trials and impartial decisions is a framework that is circumscribed by political factors extrinsic to the courts. These factors must be recognized and addressed from the beginning of the process if they are not to hamstring the quest for accountability.

For example, with regard to East Timor, it was a political decision made in New York and in national capitals not to press Indonesia any harder to cooperate with the SPSC and to extradite individuals under indictment. The failure to put on trial any Indonesian military officers and commanders indicted by the SPSC, and instead trying only very low level Timorese, is one of the most important factors undermining the legitimacy of the trials in the eyes of many critics in East Timor and abroad. (158) In contrast, the SCSL exerted international pressure on Nigeria, which had granted asylum to Charles Taylor, the former President of Liberia, thus securing his delivery for trial. This was a landmark development for the SCSL, not only because there have been so few trials of heads of state, but also because completing the SCSL trials without Taylor would have threatened their legitimacy, particularly in the eyes of the people of Sierra Leone.

Political considerations have shaped the temporal mandates of many tribunals in ways that may undermine the justice process that is the core mission of these institutions. For example, it was a political decision of the Security Council to terminate the work of the East Timor SPSC in May 2005 when its performance had just begun to significantly improve and before the very large number of remaining cases could be tried. (159) And as addressed above, in Sierra Leone, the Management Committee exerted pressures on the court to speed up the trial process. The desire to limit the expense and duration of the trial process is surely also connected to the SCSL's very strict mandate to try only those who bear the "greatest responsibility." (160) One of the things that has been difficult for many Sierra Leoneans to understand is the apparent impunity enjoyed by those below the "greatest responsibility" threshold, who nonetheless played important roles in the violence and who have often testified about their roles as "insider witnesses" for the prosecution. (161) As we will see, many of these issues will play a role in the incipient justice process now underway in Cambodia.

VI. PROSPECTS FOR THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (ECCC)

In light of the above discussion of the SCSL and the East Timor SPSC, what are the prospects for the new ECCC, the tribunal established to try former Khmer Rouge leaders? (162) The court is still in a very early stage of development with staffing now well underway and the Prosecution having opened its office and begun preliminary investigations in July 2006. As a result, it is too early to assess the performance of any of the units of the court. The focus here will be on distinctive features of the ECCC and issues that are likely to prove problematic as the trial process develops. Following the pattern of the discussion of the SPSC and the SCSL, after a brief overview of the structure of the ECCC, we will turn to issues of resources. The role of political constraints in shaping present configuration and mandate of the ECCC will be highlighted throughout.

A. Structure

The ECCC was created through an agreement between the United Nations and the government of Cambodia. The principal goal of the tribunal is to provide accountability for the deaths of some 1.7 million victims under the Khmer Rouge regime led by Pol Pot (1975-79). Although Pol Pot is dead, a number of senior Khmer Rouge leaders are still at large, living openly in Phnom Penh and other parts of Cambodia. They are all extremely advanced in years, however, and there is a considerable sense of urgency to bring them to trial quickly, now that the twenty-five-year delay in providing accountability has finally been overcome.

The Cambodian government and the United Nations formalized the agreement in January 2001 when it was adopted by the Cambodian National Assembly and by the Senate of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. (163) This agreement took many years to reach and involved notoriously difficult and protracted negotiations over the issues of Cambodian "ownership of the process" and independence. (164) Because of the almost total lack of independence in the Cambodian domestic judiciary, there were serious concerns regarding its ability to arrive at a structure that would ensure that the ECCC could function independently and meet appropriate international standards. (165) The Cambodian government insisted that a majority of judges be Cambodian in each of the three Chambers. (166) This position prevailed, though with a compromise on the voting procedure that the United Nations hoped would enable the tribunal to function independently. (167) Among both international and domestic observers, concerns remain as to the perceived potential for political interference in the process, though it is far too early to predict to what extent these concerns will or will not be realized. (168)

The Cambodian side in the negotiations also prevailed in regard to the relation of the tribunal to the domestic judiciary. The ECCC, as its name indicates, is located within the domestic legal system of Cambodia, albeit as an ad hoc institution created for a special purpose. Its applicable law is that of Cambodia and it is regarded by the Cambodian participants as "their" court. This idea of Cambodian "ownership" is widely accepted by the U.N. side of the court administration, which views its role as, in essence, one of support for the process, in accordance with international standards. (169)

The structure of the ECCC is unique among the "hybrid" tribunals. Apart from those enumerated above, its most important distinctive features are the Pre-Trial Chamber, the national and international Co-Prosecutors, and the Investigating Judges. (170) These institutions create a far more complex structure than any of the other "hybrid" or international criminal tribunals. Further, as in East Timor, there is no position of Registrar at the ECCC. The Court is administered by a Cambodian Director of the Office of Administration, Sean Visoth, and a U.N. Deputy Director of the Office of Administration, Michelle Lee. (171) While Michelle Lee in a formal, bureaucratic sense reports to Scan Visoth, as well as to the United Nations in New York, in fact the two sides of the administration function autonomously, though with close collaboration.

The Court will apply a mixture of Cambodian and international law. Under the ECCC Statute, Cambodian law governs except where there are gaps in the law or conflicts with international law. (172) For example, torture, homicide, and religious persecution will be prosecuted under the 1956 Cambodian Penal Code, while genocide and crimes against humanity are defined in the ECCC Statute based upon on international humanitarian law. (173) Interpreting and applying these provisions will be but one of the important challenges facing the court. This challenge is particularly great for the international judges, who must familiarize themselves with both Cambodian and international applicable law.

The procedural law of the ECCC will also be Cambodian. However, although the Court is now functioning, it is still not clear what procedural law will be implemented, as the Cambodian Parliament has yet to adopt the Draft Code of Criminal Procedure now before it. The Cambodian code eventually employed will be supplemented by internal rules of the court, which were expected to be adopted by the end of 2006. (174) Reaching consensus on the interpretation and application of this procedural framework will not be easy and will prove even more challenging if the Draft Code of Criminal Procedure has not been promulgated by the time hearings begin early in 2007. Needless to say, for the Prosecution to begin its investigations without being able to rely on a fixed code of criminal procedure or upon internal procedural rules presents a considerable challenge and points to the complexity of the political context in which the ECCC operates.

Both the Prosecution and Chambers will be jointly staffed by Cambodians and internationals. (175) The Cambodian and international prosecutors and investigating judges are co-equal, but the Cambodian side has a majority in all three Chambers of the Court. (176) There are seventeen Cambodian and twelve international judges, distributed among the Supreme Court Chamber (7), the Pre-Trial Chamber (5), the Trial Chamber (5), and the Office of Co-Investigators (2). (177) There are two Co-Prosecutors and two Investigating Judges, one Cambodian and one international. (178) The function of the Pre-Trial Chamber is essentially to resolve matters where the co-equal Co Prosecutors or Co-Investigating Judges cannot agree. (179)

The voting system that determines decisions in the various chambers is unique and is the product of the protracted struggle over "ownership" and independence noted above. (180) This compromise allowed the creation of the tribunal to go ahead, but may have also saddled the Court with a decisionmaking structure that will prove unworkable. While the United Nations agreed to the Cambodian demand to have a majority of Cambodian judges in all the chambers, it also secured a provision that a simple majority would not suffice for decisions by the chambers. To reach a decision, a chamber must obtain a so-called "supermajority", which in essence means that at least one international judge must vote with the simple majority. (181) Interpreting and applying this provision of the ECCC Statute represents one of the most significant and difficult challenges facing the court. The drafters composing the internal rules for the Court are addressing this issue, and it is essential for the integrity of the process that it be resolved before trials begin.

Since the Office of the Prosecutor only began its work at the beginning of July 2006, it will not be clear for some time how many persons will be indicted. As in Sierra Leone, the mandate of the ECCC is strictly circumscribed to prosecuting those "most responsible" for crimes committed under the Khmer Rouge from 1975-79. (182) A variety of political factors played a role in shaping this limited mandate. First, it stems in part from the well-known determination on the U.N. side to limit the expense and duration of trials. (183) The limited mandate was apparently desired in part by the Cambodian side because it appears to exclude mid- or low-level Khmer Rouge officials from the ECCC's purview, including a number of such former officials who play important roles in the current Cambodian government. (184) An important aim of the ECCC's outreach efforts must be to explain why only a very small number of defendants will be put on trial.

As is also the case at the SCSL, the ECCC has been given a mandate to complete its work within three years. (185) Two potential indictees were in custody until one of them, the Khmer Rouge military commander, Ta Mok, died in a military prison in July 2006. (186) Also like the SCSL, the ECCC has created within the court an office of the Principal Defender. (187) The Principal Defender, Mr. Rupert Skilbeck, began his work in Phnom Penh on October 3, 2006 and is expected to have the unit functioning by early 2007. (188) Accused who qualify for court-assigned counsel will be represented by teams composed of both Cambodian and international defense counsel. (189)

B. Resources

In regard to resources, there is already considerable concern in international diplomatic and non-governmental organization (NGO) circles that the ECCC is seriously under-funded in a number of critical areas. (190) Unless these resource issues are adequately addressed there is a very real risk that the process may be fraught by some of the same kinds of shortcomings that plagued the trials before the SPSC in East Timor. Unlike the SPSC, however, there are a number of countries and NGOs that are working to support this new tribunal and ensure that it has the resources it needs to complete its mandate according to international standards. (191) Further, the ECCC appears to be well aware of a number of these issues and is working to address them. It is too early to predict how successful these efforts will be.

The ECCC has a total three year budget of $56.3 million ($43 million provided by the United Nations and $13.3 million by the Government of Cambodia). (192) The U.N. portion is funded by a large group of voluntary donor countries. (193) When the Cambodian government declared itself unable to meet its budgetary commitments, a number of donor countries stepped forward to assist, and a further major contribution was made through allocation of funds discovered to have been overlooked in a U.N. Cambodian trust fund from the 1990s. (194)

When at full complement in 2007, the staff will number approximately 350, about the size of the SCSL in Freetown. (195) The ECCC has received a very large new facility at Kambol, outside of Phnom Penh, that had originally been built to serve as Royal Cambodian Armed Forces Headquarters. Concerns have been expressed about locating the court on a military base and the way in which this might be perceived by the Cambodian public. (196) A fence has recently been built to divide the Court's part of the compound from the rest, but it is not clear if this measure will address such concerns. Despite the relatively large projected staff and the quality of its physical facilities, key resource issues may prove problematic as the Court moves ahead with its trial program.

Financial constraints have affected budgetary provisions for important programs such as witness and victim support, community outreach, training, transcription and recording, and translation and interpretation. (197) As currently planned, there is serious concern about the funding level for witness protection as the unit will be small, staffed at a very junior level, and have very limited facilities. (198) The community outreach function will not be the responsibility of a separate unit, but will fall under the office and budget of Public Affairs.

The ECCC administration apparently made a determination that some outreach functions could be handled by Cambodian NGOs. (199) Although there are several Cambodian NGOs that have the capacity to contribute effectively to outreach efforts, such as the Center for Social Development, the Documentation Center of Cambodia, and the Khmer Institute for Democracy, it remains to be seen what role they can usefully play in any other areas. Leaving essential functions, such as the provision of psycho-social services to traumatized or potentially traumatized witnesses, to NGOs that may not have the resources, staff, or training to meet the needs and challenges of the investigative and trial process runs the risk that they will not be comprehensively applied and that they will not meet international standards. Witness protection and outreach are challenging undertakings whose complexities are only understood by those with the requisite expert training, knowledge, and experience. Leaving them to even the best intentioned NGOs that lack this knowledge and experience represents a potential abdication of the responsibility of the tribunal to the public that it is mandated to serve. (200) Budgetary constraints provide no excuse for failing to adequately protect and care for witnesses whom the court chooses to call to testify.

It will be a major challenge for the Court to develop effective and comprehensive programs in these and other areas within the budgetary strictures it faces. As in East Timor, observers have expressed concerns about the quality of interpreters and translators available to the Court. (201) The Court administration is well aware of this problem and has, with the support of donor governments, taken steps to address it. Whether these measures will prove adequate remains to be seen.

Effective responses to these and the many other resource-related challenges the ECCC faces will require extensive cooperation of the two sides of the court administration. This raises questions about the political context in which the Court operates and, in particular, about the issue of "ownership."

More than was the case in Sierra Leone or East Timor, the ECCC appears to have a split identity. It is located, as its name makes clear, "in the Courts of Cambodia." Cambodian law governs the court in the first instance, and none of the international judges or prosecutors have expertise in this area. In both substantive and procedural law, however, international legal norms will supplement the Cambodian law. The ECCC Statute provides that the procedural rules of the ECCC, including the indictment, arrest, and custody of suspects shall be in conformity with existing procedural laws of Cambodia. (202) At the moment, this means that the 1992 United Nations Transitional Authority in Cambodia (UNTAC) Criminal Law and Procedure (203) and the 1993 State of Cambodia (SOC) Law on Criminal Procedure (204) govern the Court. (205) When the new Draft Code of Criminal Procedure is adopted, it will supersede these older statutes, but it is hardly desirable that proceedings begin under one set of procedural rules and then shift to another.

Finally, the Statute requires that the ECCC shall exercise its jurisdiction (including in regard to rights of the accused) in conformity with Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR). (206) Dealing with the complexity of this procedural context, in a mixed court where the judges have no common legal background and cannot even deliberate in a common language, will likely prove to be an ongoing challenge.

Because the new Draft Cambodian Code of Criminal Procedure has not yet been adopted and the Court itself has not finalized its internal rules and regulations, no one knows with certainty the procedural rules under which the ECCC will be operating. With the prosecution having begun its preliminary investigations, the longer this situation persists, the more likely it is to come back to haunt the prosecution at a later stage. Given the long period in which the ECCC has been in development, it is hard to understand why these problems could not have been resolved before the Court began its work. The Draft Code of Criminal Procedure, for example, has been under consideration for several years and as of this writing still remains under consideration by the National Parliament.

In administrative matters, the Cambodians are, in principle, in charge, but to a significant degree they lack the expertise to create and manage this international "hybrid" institution according to international standards. The United Nations side of the Court plays a crucial "supportive" role in this regard, and so far cooperation between the two sides of the administration has been very good, as it also has also been in Chambers and between the Co-Prosecutors. There are, however, ongoing concerns about the ability of the two sides within these units of the Court to communicate with one another since, to a very significant degree, they lack a common language. Because it is too cumbersome for staff speaking different languages to resort constantly to interpreters (should sufficient numbers even be available) there is an inevitable tendency to separate functions within units of the Court in ways that do not necessarily represent the most efficient use of limited resources.

Other problems arising from the dominant Cambodian role are less tractable. The Cambodian judiciary, bar, and entire justice system are universally acknowledged to be very weak and to lack independence and adherence to the rule of law. (207) Many of the older generation of judges, including some appointed to the ECCC, have had no formal legal education at all. (208) There is also extensive corruption in the judiciary, including the exertion of political pressure in many cases. When the Cambodian judges were appointed by their government in mid-2006, there was widespread criticism that some of them may have previously allowed political influence to determine the outcome of particular cases. (209) Observers of the ECCC are keenly watching to see if such problems emerge when indictments are handed down and trials begin.

Finally, Cambodian defense counsel will have to undergo extensive training in order to represent their clients adequately. Again, international help is being sought to supplement the inadequate resources available to the Court to provide such training. (210) Although there has been strong cooperation between the two sides in many contexts, more difficult challenges will inevitably emerge, and it remains uncertain whether the U.N. team, in its "advisory" capacity, will be able to act effectively to avoid the kinds of "ownership" problems that plagued the SPSC in East Timor.

One of the most frequently voiced concerns about the ECCC has to do with the issue of judicial independence, as noted above. (211)Because there is absolutely no tradition of an independent judiciary or public prosecution service in Cambodia, and because the outcome of many domestic trials appears to be politically determined, the question is whether or not the ECCC will prove to be different. The presence of international judges and prosecutors is designed to ensure that it will be different, and thus far the Cambodian participants appear fully committed to the integrity and independence of the process and to the imperative of meeting international standards. (212) Many supporters of the ECCC believe that the most valuable contribution the Khmer Rouge trials could possibly make is providing a model for the Cambodian legal system and educating the bar and the public about how a fair trial should properly be conducted. (213)

The test of such independence is likely to arise when the prosecution reaches the stage of issuing indictments or when the three Chambers first have to make important decisions. For example, there could well be disagreements between the Co-Prosecutors or between Co-Investigating Judges over investigating or indicting former Khmer Rouge leaders who enjoy the protection of the Cambodian regime. The potential for conflicts in the pre-trial stage is exacerbated by a lack of precise demarcation of the scope of the Co-Prosecutors' investigating competence vis-a-vis that of the Co-Investigating Judges. (214) In the case of a disagreement between the Co-Prosecutors or the Co-Investigating Judges that they cannot resolve, the matter is referred to the Pre-Trial Chamber. (215) If, because of a split between its Cambodian and international members, the Pre-Trial Chamber cannot achieve a "supermajority" of at least four to one, the process is deadlocked. (216)

The same kind of deadlock can happen in the Trial and Supreme Court Chambers as well, regarding either ultimate determinations of guilt or innocence or other matters. (217) Although the United Nations and the government of Cambodia agreed on the "supermajority" system compromise, they did not go on to negotiate what would happen if this mechanism did not work, and thus there is no provision in the Statute to resolve such an impasse. One of the most difficult tasks now facing the Rules Committee of the Chambers is how to resolve these issues in the Court's internal regulations. Failure to achieve a satisfactory, workable solution could mean that the Court will have difficulty in performing its most essential functions.

While the ECCC faces many of the same challenges as its predecessors in East Timor and Sierra Leone, there is no question that it is also well placed to meet them if it has effective leadership and sufficient political will. The ECCC's administration has clearly learned from the successes and failures of tribunals and has consulted widely with individuals who have experience with these courts. The ECCC has also sought outside assistance in regard to the lessons to be learned from its brethren restitutions." (218)

VII. CONCLUSIONS

Hybrid tribunals enjoy a number of advantages over the large scale, purely international courts like the ICTY, ICTR, and ICC. Location in the country where the crimes occurred is advantageous for investigations, witness production, community outreach, public accessibility, legacy creation, and capacity-building. There must, however, be adequate resources to develop adequate programs in these areas. These resources are not only financial. Effective leadership and recruitment are likewise vitally necessary. This is even more the case with hybrid tribunals than with larger, international courts because resources are inevitably more limited and heads-of-units or top administrators must be able to fight to get what is required from reluctant donors. Only highly committed and qualified individuals will be able to make the most out of the limited resources available and develop innovative programs at moderate cost. Unclear or contested "ownership" may, in this regard, prove a significant disadvantage of hybrid tribunals if there are serious differences of opinion about recruitment, management, and allocation of resources.

It is often said that hybrid tribunals, by virtue of being located in-country, have a greater chance of making effective contributions to reconciliation, stability, development of the rule of law, and capacity-building. It remains at present an open question if any courts can successfully promote reconciliation and stability. It is clear, however, that they cannot if they are not given the human and financial resources, and the long-term commitment to develop programs that might have such a positive effect. In regard to developing the rule of law, capacity-building, and "legacy" in general, there are great hopes for the ECCC in this area, and the SCSL has, in fact, accomplished a great deal considering the very scant resources available. The record of the East Timor SPSC in this area was, as seen above, much less satisfactory. If the United Nations and the Security Council are serious about achieving long term stability and the rule of law, then they should invest far more heavily in these areas, which are among the most seriously under funded at all the tribunals. Indeed, none of the three tribunals discussed above received any budgetary allocation for outreach. Yet, outreach does not happen on its own, especially not in countries like East Timor, Cambodia, or Sierra Leone, where the kind of media available in developed nations is not widely available. Without effective outreach, many of the courts' stated goals cannot be achieved.

In addition, the mixed composition of hybrid tribunals increases the complexity of their institutions and may create significant difficulties in communication, policymaking, jurisprudence, and administration. Yet such composition also offers unique opportunities for capacity-building in all areas of the court. Training court actors and administrators, introducing best practices and modern systems in case and document management, and providing a model for the domestic legal system and for the operation of the rule of law represent some of the most important contributions that a "hybrid" tribunal can make. The example of East Timor indicates, however, that putting an international and a national judge in close physical proximity does not alone resolve the problem. A sustained and organized effort is required, such as the prosecution training program instituted by Deputy Prosecutor General for Serious Crimes, Siri Frigaard, in East Timor. (219)

The SCSL has had great success with capacity-building in areas of court administration under the control of the registry by engaging the domestic justice system in important ways. It has been less successful, however, in building capacity in the other branches of the court. The lesson of East Timor and Sierra Leone is that capacity--building happens when there are capable and motivated individuals in leadership positions and when financial and human resources are available to develop effective programs. This requires the kind of sustained and serious effort on the part of the United Nations and donor nations that has generally been lacking in all of the tribunals studied here. In the absence of such commitments, all that results is a great deal of repetition of well-worn phrases and relatively few concrete results. (220)

The international community invests a massive amount of money in its "experiments" in "hybrid" international justice--money that could be used for many other important purposes in these desperately poor countries. It would represent a tragic waste of scarce resources if all that is left after this multiyear investment in a trial process is a few individuals serving sentences in local prisons. "Hybrid" tribunals offer an opportunity to do much more through a relatively modest further investment--by leaving an institutional legacy in the domestic justice system, law schools, and other institutions. Neither the United Nations nor the international community has, as yet, demonstrated that it is prepared to do this through more than a verbal commitment.

Having reviewed the very different experiences of the "hybrid" tribunals in East Timor, Sierra Leone, and Cambodia, one is left with the question of whether different tribunals should be allowed to dispense different quality grades of justice. This does not imply that every tribunal must have the resources and size of the ICTY. Rather, it begs the question, should not international standards of practice prevail at all courts where the United Nations is engaged in a central way? In the end, does it all come down to money? This, unfortunately, seems too often to be the case for the Security Council, Management Committees, and other bodies that determine the budgets for the generally under-funded hybrid tribunals, as opposed to their massively funded international counterparts. Hybrid tribunals may be attractive to such bodies because of their smaller scale, limited duration, and lower costs, but again, it must be remembered that that the lives and liberty of individuals are at stake. The final question must always be, "cheaper, but at what cost?"

(1) Robert Jackson, Chief United States Prosecutor at the Nuremberg Trials, Opening Address for the United States (Nov. 21, 1945).

(2) All of the hybrid tribunals are unique in their constitution though they share features in common. The tribunals in Kosovo, Bosnia, East Timor, and Cambodia are, in one way or another, located within the domestic court systems of those countries. This is not the case with the Special Court for Sierra Leone.

(3) Since July-August 2006 there have been renewed calls for a re-establishment of the Serious Crimes Unit, the prosecution arm of the East Timor "hybrid" justice process. At present, staff are being recruited for this purpose.

(4) While the three ongoing trials are in their final phases, the trial of Charles Taylor has not yet begun. See discussion infra Part V.

(5) See S.C. Res. 1503, U.N. Doc. S/RES/1503 (Mar. 26, 2003); S.C. Res. 1534, U.N. Doc. S/RES/1534 (Aug. 28, 2004).

(6) ICTR, The Tribunal at a Glance, [paragraph] 1, http://69.94.11.53/ENGLISH/factsheets/1.htm (last visited Nov. 1, 2006).

(7) Id.

(8) Id.

(9) Id. at [paragraph] 9.

(10) Letter from Erik Mose, President, International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, to President, Security Council, U.N. Doc. S/2006/358 (June 1, 2006) [hereinafter Mose Letter], available at http://69.94.11.53/ENGLISH/completionstrat/s-2006-358e.pdf.

(11) ICTR, General Information, Staff and Budget, http://69.94.11.53/ENGLISH/geninfo/index.htm (last visited Nov. 1, 2006).

(12) Id.

(13) These trials include a significant number of former government ministers and high ranking military officers, all accused of having participated in the planning and implementation of the 1994 genocide. Mose Letter, supra note 10, at 10-11.

(14) ICTY, Fact Sheet on ICTY Proceedings, http://www.un.org/icty/cases-e/factsheets/procfacte.htm (last modified Jan. 17, 2007).

(15) Id.

(16) Id.

(17) Id.; see also Letter from Fausto Pocar, President of the Int'l Tribunal for the Prosecution of Persons Responsible for Serious Violations of Int'l Humanitarian Law Committed in the Territory of the Former Yugo. since 1991, to the President of the Security Council, at [paragraph] 13, U.N. Doe. S/2006/353 (May 31, 2006) [hereinafter Pocar Letter].

(18) Press Release, ICTY, Partnership and Transition between the ICTY and National Courts, available at http://www.un.org/icty/cases-e/factsheets/partnership-e.htm.

(19) ICTY, General Information, http://www.un.org/icty/cases-e/factsheets/generalinfoindex-e.htm (last modified May 8, 2006).

(20) Id.

(21) S.C. Res. 1503, U.N. Doc. S/RES/1503 (Mar. 26, 2003); S.C. Res. 1534, U.N. Doc. S/RES/1534 (Aug. 28, 2004).

(22) Empirical studies suggest that only a small percentage of the Rwandan population have any knowledge of what transpires at the ICTR. See Timothy Longman, Phuong Pham & Harvey M. Weinstein, Connecting Justice to Human Experience: Attitudes Toward Accountability and Reconciliation in Rwanda, in MY NEIGHBOR, MY ENEMY: JUSTICE AND COMMUNITY IN THE AFTERMATH OF MASS ATROCITY, 206-25 (Eric Stover & Harvey M. Weinstein eds., 2004).

(23) See Chief Justice Phillip Rapoza, Hybrid Criminal Tribunals and the Concept of Ownership." Who Owns the Process?, 21 AM. U. INT'L. REV. 525, 528-38 (2006) [hereinafter Rapoza, Ownership] (describing the concept of ownership and its application to East Timor).

(24) Id. at 530-38.

(25) Id. at 528-30.

(26) See generally David Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor, 2006 EAST-WEST CENTER SPECIAL REP. 9; Silvia de Bertodano, Current Developments in Internationalized Courts: East Timor--Justice Denied, 2 J. INT'L CRIM. JUST. 910-26 (2004), available at http://www.law.umaryland.edu/specialty/eastasia/documents/mscas-archives.pdf (discussing the most important recent accounts of the East Timor justice process); Suzannah Linton, Putting Things into Perspective: The Realities of Accountability in East Timor, Indonesia and Cambodia, 3 MO. SERIES IN CONTEMP. ASIAN STUD. 182 (2005); Caitlin Reiger & Marieke Wierda, The Serious Crimes Process in Timor-Leste: In Retrospect, 2006 INT'L CENTER FOR TRANSNATIONAL JUST., available at http://www.ictj.org/static/Prosecutions/Timor.study.pdf.

(27) S.C. Res. 1503, supra note 5; S.C. Res. 1534, supra note 5; Commission for Reception, Truth and Reconciliation in East Timor, Report, Jan. 30, 2006, available at http://www.ictj.org/en/news/features/846.html (describing crimes committed by the anti-Indonesian resistance movement); ICTR, Cases, http://www.ictr.org (follow "Cases" hyperlink) (last visited Nov. 1, 2006) (containing the most thorough available documentation of the crimes committed during the occupation).

(28) FRETILIN refers to the Revolutionary Front for an Independent East Timor. FALANTIL was FRETILIN's military wing.

(29) Eric G. John, Deputy Assistant Sec'y, U.S. State Dep't, East Timor: Instability and Future Prospects, Statement Before the House International Relations Committee, Subcommittee on Asia and the Pacific (June 28, 2006), available at http://www.state.gov/p/eap/rls/rm/68425.htm. For the definitive accounts of the events leading up to the referendum, the vote itself, and the Indonesian involvement in the bloody aftermath, see Full Report of the Investigative Commission into Human Rights Violations in East Timor KPP-HAM (Jan. 31, 2000), reprinted in MASTERS OF TERROR: INDONESIA'S MILITARY AND VIOLENCE IN EAST TIMOR, at 15-59, 262-64 (Hamish McDonald, et al., eds.) (2006); Report of the International Commission of Inquiry on East Timor to the Secretary General, U.N. Doc. A/54/726-S/2000/59 (Jan. 31, 2000); IAN MARTIN, SELF-DETERMINATION IN EAST TIMOR: THE UNITED NATIONS, THE BALLOT, AND INTERNATIONAL INTERVENTION (2001).

(30) Full Report of the Investigative Commission into Human Rights Violations in East Timor KPP-HAM, supra note 29.

(31) Id. at [paragraphs] 170-71.

(32) Id. at [paragraph] 168.

(33) Id. at [paragraph] 169.

(34) In June 1999 the Security Council established a U.N. presence in the country, UNAMET, to administer the vote.

(35) See S.C. Res. 1264, U.N. Doc. S/RES/1264 (Sept. 15, 1999) (establishing INTERFET).

(36) S.C. Res 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999). UNTAET administered the country until May 20, 2002, when East Timor became independent. UNTAET was then succeeded by the U.N. Mission of Support East Timor (UNMISET).

(37) UNTAET, On the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000); UNTAET, On the Organization of Courts in East Timor, U.N. Doc. UNTAET/REG/2000/11 (Mar. 6, 2000); As amended by UNTAET, On the Amendment of UNTAET Regulation No. 2000/11 on the Organization of Courts in East Timor and UNTAET Regulation No. 2000/30 on the Transitional Rules of Criminal Procedure, U.N. Doe. UNTAET/REG/2001/25 (Sept. 14, 2001).

(38) The Security Council has mandated UNTAET to provide "overall responsibility for the administration of East Timor ... including the administration of justice." S.C. Res. 1272, supra note 36 (mandating UNTAET provide "overall responsibility").

(39) UNTAET Reg. 2000/11, supra note 37.

(40) UNTAET Reg. 2000/15, supra note 37 (establishing panels with exclusive jurisdiction over serious criminal offences).

(41) Id. [section] 1.3.

(42) UNTAET Reg. 2000/15, supra note 37, [section] 3.2; UNTAET, On the Authority of the Transitional Administration in East Timor, UNTAET Reg. 1999/1 [subsection] 2-3, U.N. Doc. UNTAET/REG/1991/1 (Nov. 27, 1999).

(43) See Cohen, supra note 26, at 8-17 (discussing the formation and staffing of the Special Panels and the Serious Crimes Unit); Reiger & Wierda, supra note 26, at 11-21.

(44) Cohen, supra note 26, at 20.

(45) Id. at 11.

(46) Id. at 12.

(47) Id. at 17.

(48) U.N. Security Council, End of Mandate Report of the Secretary-General on the United Nations Mission of Support in East Timor, [paragraph] 20, U.N. Doc. S/2005/310 (May 12, 2005); Cohen, supra note 26, at 42.

(49) End of Mandate Report of the Secretary-General on the United Nations Mission of Support in East Timor, supra note 48.

(50) Prosecutor v. Paulino De Jesus, UNMISET 6/2002 (Jan. 26, 2004).

(51) ICTY, Key Figures, supra note 14.

(52) S.C. Res. 1543, U.N. Doc. S/RES/1543 (May 14, 2004).

(53) The Secretary-General, Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (the then East Timor) in 1999, at 16 delivered to the President of the Security Council, U.N. Doc. S/2005/458 (July 15, 2005) [hereinafter Commission of Experts Report]; S.C. Res. 1272, supra note 36. An additional fifty cases had been brought to the SCU but had not yet been investigated. The senior investigator estimated that of the 514 open investigations, perhaps 100 had been virtually completed and were ready to move to indictment and trial. Interview with David Savage, Chief Investigator, U.N. Serious Crimes Investigation Unit, in Dili, East Timor (Feb. 17, 2005).

(54) Rapoza, Ownership, supra note 23.

(55) Rapoza, Ownership, supra note 23, at 531-32; Interview with Phillip Rapoza, Chief Justice of the Special Panels for Serious Crimes in East Timor, in Dili, East Timor (Sept. 1, 2004) [hereinafter Rapoza Interview].

(56) Rapoza, Ownership, supra note 23, at 532.

(57) Press Release, U.N. News Center, Timor-Leste, not UN, Indicts Indonesian General for War Crimes (Feb. 26, 2003), available at http://www.un.org/apps/news/printnewsAr.asp?nid=6273 (stating in response to claims the U.N. had indicted General Wiranto that "[w]hile indictments are prepared by international staff, they are issued under the legal authority of the Timorese Prosecutor-General.").

(58) See Cohen, supra note 26, at 93.

(59) Id.

(60) Overview of the Jurisprudence of the Court of Appeal in its First Year of Operation since East Timor's Independence, JUDICIAL SYSTEM MONITORING PROGRAMME, Aug. 2004, at 6, available at http://www.jsmp.minihub.org/Language_English/reports_english.htm [hereinafter JSMP, Overview].

(61) The exception was that a panel was specially constituted to hear one case. Cohen, Indifference and Accountability, Supra note 26, at 10.

(62) See Overview of the Courts in East Timor in 2004, JUDICIAL SYSTEM MONITORING PROGRAMME, Dec. 2004, at 14-16, available at http://www.jsmp.minihub.org/Language_English/reports_english.htm.

(63) See Cohen, supra note 26, at 99-105 (discussing the Portuguese language policies and their effects).

(64) Tom Perriello & Marieke Wierda, The Special Court for Sierra Leone Under Scrutiny, INT'L CENTER FOR TRANSITIONAL JUST., Mar. 2006, at 10, available at http://www.ictj.org/static/Prosecutions/Sierra.study.pdf.

(65) Id. at 14-15.

(66) Id. at 15-16.

(67) Id. at 13.

(68) Id. at 18.

(69) See S.C. Res. 1315, [paragraph] 1, U.N. Doc. S/RES/1315 (Aug. 14, 2000) (requesting that the Secretary-General negotiate with Sierra Leonan government to develop a special court).

(70) Special Court for Sierra Leone, Second Annual Report of the President of the Special Court for Sierra Leone: For the Period 1 January 2004-17 January 2005 [hereinafter Second Annual Report], at 2, available at http://www.sc-sl.org/specialcourtannualreport2004-2005.pdf

(71) Id. at 4.

(72) Second Annual Report, supra note 70, at 5.

(73) Id. at 4.

(74) Special Court for Sierra Leone, Chambers, http://www.sc-sl.org/chambers.html (last visited Nov. 11, 2006).

(75) Id.

(76) Id.

(77) Michelle Staggs, Second Interim Report on the Special Court for Sierra Leone, U.C. BERKELEY WAR CRIMES STUDIES CENTER, Apr. 2006, at 5, available at http://socrates.berkeley.edu/~warcrime/documents/ SecondInterimReport_003.pdf.

(78) Id. at 14; see generally U.C. Berkeley War Crimes Studies Center, http://warcrimescenter.berkeley.edu (last visited Nov. 11, 2006) (providing further information on thesecases and on the Special Court).

(79) Staggs, Second Interim Report on the Special Court for Sierra Leone, supra note 77 at 22.

(80) Cohen, supra note 26, at 13.

(81) Cohen, supra note 26, at 9.

(82) Special Court for Sierra Leone, First Annual Report of the President of the Special Court for Sierra Leone: For the Period 2 December 2002-1 December 2003, at 29 [hereinafter First Annual Report], available at http://www.sc-sl.org/specialcourtannuakeport2002-2003.pdf.

(83) Id. at 31, 37. The Management Committee has members from Canada, Lesotho, The Netherlands, Nigeria, Sierra Leone, the United Kingdom and the United States.

(84) Interviews with Anonymous Judges, Trial Chambers 1 and 2, Special Court for Sierra Leone, in Freetown, Sierra Leone (Sept. 2005).

(85) Id.

(86) Of this, approximately $6 million was allocated to the prosecution and $300,000 to the Special Panels--none to the defense. Interview with anonymous Advisor to the Special Representative of the Secretary General, Dili, East Timor (Jan. 2002).

(87) Id.

(88) Budget figures for the Serious Crimes Process were not made public, unlike the transparency attending such matters at the SCSL and the ICTY and ICTR. Interview with Sukehiro Hasegawa, Special Representative of the Secretary General of the United Nations, in Dili, East Timor (Apr. 2005).

(89) In 2003-05 the total UNMISET budget was $296,557,000. The combined budgets of the Serious Crimes Unit and the SPSC for this period totaled $14,358,600. See Commission of Experts Report, supra note 53, [paragraph] 99.

(90) See Cohen, supra note 26, at 20-41 (discussing the availability of resources and the impact on trials).

(91) Interview with Shanti Karuppiah, Coordinator of the Translation and Transcription Unit, SPSC, in Dili, East Timor (Mar. 29, 2005).

(92) Id.

(93) Id.

(94) Id.

(95) Languages commonly used include English, Portuguese, Bahasa Indonesia, Teturn, and various local dialects like Baikenu used by those Timorese who do not speak Tetum.

(96) Interview with Slyver Ntukamazina, Judge, SPSC, in Dili, East Timor (Jan. 2002); Interview with Maria Pereira, Judge, SPSC, in Dili, East Timor (Jan. 2002); Interview with Sylvia de Bertodano, International Defense Counsel, SPSC, in Dili, East Timor (Jan. 2002); Interview with Smart Alford, Prosecutor, SPSC, in Dill, East Timor (Jan. 2002); Interview with Brenda Sue Thornton, Prosecutor, SPSC, in Dili, East Timor (Jan. 2002). See also JSMP, Justice in Practice: Human Rights in Court Administration 24-28 (2001); JSMP, Trial Report, The General Prosecutor v. Joni Marques and 9 Others (The Los Palos Case) 25-27 (Mar. 2002).

(97) Interview with Shanti Karuppiah, Head of Unit, Personnel and General Administration Unit, SPSC, in Dili, East Timor (Mar. 29, 2002); Interview with Antonio Helder, Judge, SPSC, in Dili, East Timor (Mar. 28, 2005); Rapoza Interview, supra note 55; Interview with Samith de Silva, Judge, SPSC, in Dill, East Timor (Apr. 1, 2004).

(98) Interview with Katia Galindo Malaquias Romijn, Registry Coordinator, SPSC, in Dili, East Timor (Mar. 28, 2005).

(99) The position of Coordinating Judge was not even created until March 2003. See Sift Frigaard, Deputy Prosecutor General for Serious Crimes, SPSC, Address at the "Future of Serious Crimes" panel at the U.N. Int'l Symposium in Dili, East Timor (Apr. 28, 2005) [hereinafter Frigaard Address]; Interview with Siri Frigaard, Deputy Prosecutor Gen. for Serious Crimes, SPSC, in Dili, East Timor (Mar. 29, 2005) [hereinafter Frigaard Interview].

(100) Frigaard Interview, supra note 99.

(101) Id.

(102) Frigaard Address, supra note 99; Frigaard Interview, supra note 99.

(103) Reiger & Wierda, The Serious Crimes Process, supra note 26, at 26-27.

(104) Cohen, supra note 26, at 16-17, 25, 36-41 (discussing defense resources and the impact on the creation of the DLU).

(105) David Cohen, Seeking Justice on the Cheap, EAST-WEST CENTER ASIA-PACIFIC ISSUES NO. 61, at 5 (Aug. 2002).

(106) Cohen, supra note 26, at 36.

(107) Though the DLU was created in September 2002, it was not fully functioning until April 2003. It was after that date that Timorese defense counsel were, with the exception of one trial, excluded from the process. See id. at 36-41 (discussing the equality of arms at the Special Panels).

(108) See generally Prosecutor v. Aleksovski, Case No. IT-95-14/1, Judgment (Mar. 24, 2000); Prosecutor v. Erdemovic, Case No. IT-96-22, Sentencing Judgment (Nov. 29, 1996); Prosecutor v. Furundzija, Case No. IT-95-17/1, Judgement (Dec. 10, 1998); Prosecutor v. Tadic, Case. No. IT-94-1, Sentencing Judgment (July 14, 1997).

(109) Cohen, supra note 26, at 12.

(110) See Cohen, supra note 26, at 42-90 (providing a detailed analysis of twenty-seven of the fifty-five trials before the Special Panels).

(111) Id. at 67-71, 73-75, 82-88, 90 (analyzing the Court of Appeal decisions); see also JSMP, Report on the Court of Appeal Decision in the Case of Armando dos Santos 23-25 (Aug. 2003); JSMP, Overview, supra note 60.

(112) See UNTAET, On the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, U.N. Doe. UNTAET/REG/2000/15 (June 6, 2000) at [section] 24.1 (providing that "It]he panels shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses").

(113) Interview with Sharon Lowery, Head of SCU Witness Protection Office, in Dili, East Timor (May 13, 2005).

(114) Id.

(115) Id.

(116) Interview with Shyamala Alagendra, Prosecutor, SCU, in Dili, East Timor (May 12-13, 2005); interview with Wambui Ngunya, Prosecutor, SCU, in Dili, East Timor (May 12-13, 2005).

(117) Interview with Sharon Lowery, supra note 113.

(118) Interview with Julia Alhinho, Public Affairs Coordinator, SCU, in Dili, East Timor (Feb. 18, 2005).

(119) Interview with Carl Da Faria, DPGSC, SCU, in Dili, East Timor (Feb. 18, 2005).

(120) See SCU Fact Sheet (Jul. 2002) (noting outreach activities) (on file with author); SCU Serious Crimes Update (Apr. 21, 2003) (on file with author).

(121) Interview with Carl Da Faria, DPGSC, SCU, in Dili, East Timor (Apr. 29, 2005).

(122) Robin Vincent, The Special Court for Sierra Leone: Budget 2005-2006, at 5, available at http://www.sc-sl.org/Documents/budget2005-2006.pdf.

(123) Second Annual Report, supra note 70, at 19.

(124) Vincent, supra note 122, at 17.

(125) Id.

(126) Second Annual Report, supra note 70, at 19.

(127) Id.

(128) Cohen, supra note 26, at 38-41.

(129) Interviews with anonymous defense counsel, SCSL, in Freetown, Sierra Leone (Sept. 2005).

(130) This conclusion is based upon my observation of all three trials during repeated visits to Freetown in 2004-05. See also Comprehensive Report on the Sierra Leone Defense Office, U.C. BERKELEY WAR CRIMES STUDIES CENTER, forthcoming Dec. 2006; Sara Kendall & Michelle Staggs, Interim Report on the Special Court for Sierra Leone, U.C. BERKELEY WAR CRIMES STUDIES CENTER, Apr. 2005 (providing an account of the role of the Defense Office and the performance of the defense teams), available at http://warcrimescenter.berkeley.edu; Staggs, Second Interim Report on the Special Court for Sierra Leone, supra note 77 (providing an updated account of the role of the Defense Office and the performance of the defense teams).

(131) Interviews with anonymous defense counsel, SCSL, in Freetown, Sierra Leone (May 2005 & Sept. 2005).

(132) These include electronic voice and facial distortion. Second Annual Report, supra note 70, at 29, 32-33.

(133) Id. at 32-33.

(134) Id. at 32-33.

(135) Id. at 33.

(136) Id. at 32-33.

(137) Cohen, supra note 26, at 31-34.

(138) Second Annual Report, supra note 70, at 33-35.

(139) Id. at 34-35.

(140) Id. at 33.

(141) Id. at 34.

(142) Interview with Allison Cooper, Chief of Public Affairs, SCSL, in Freetown, Sierra Leone (May 2005).

(143) Interview with Sativa January, Deputy Chief of Public Affairs, SCSL, in Freetown, Sierra Leone (Jan. & Sept. 2005).

(144) Second Annual Report, supra note 70, at 26.

(145) See discussion supra Part IV .A.

(146) The language difficulties in Sierra Leone were far more formidable than in East Timor. The Translation Unit employs eleven translators who can perform simultaneous translation in Mende, Temne, Krio, Limba, and English, as well as contract translators for other Sierra Leonean languages. The SCSL received the support of the ICTR in developing its Translation Unit, with funding from the European Commission. See Second Annual Report, supra note 70, at 29.

(147) SPSC Judge Francesco Florit opined, "This system was created without knowing what a court is and how it functions." This, he concluded, reflected, "the lack of importance that the UN attached to the process." Interview with Francesco Florit, Judge, SPSC, in Dili, East Timor (Mar. 28, 2005).

(148) Interview with Robin Vincent, former Registrar, SCSL, in Freetown, Sierra Leone (Sept. 2005); interview with Robin Vincent, former Registrar, SCSL, in Phnom Penh, Cambodia (June 2006).

(149) See Cohen, supra note 26, at 23-25 (discussing the reorganization of the DPGSC under Frigaard).

(150) Interviews with Phillip Rapoza, Coordinating Judge, SPSC, in Dili, East Timor (Sept. 30, 2004 & Apr. 29, 2005).

(151) Judge Rapoza explained, "The basic resources that the Special Panels should have had when they opened were not made available until the very end of the serious crimes process." Interview with Phillip Rapoza, Coordinating Judge, SPSC, in Dill, East Timor (Mar. 29, 2005).

(152) See Comprehensive Report on the Sierra Leone Defense Office, supra note 130 (discussing structural problems in the Defense Office).

(153) Vincent, supra note 148.

(154) See International Crisis Group, Resolving Timor Leste's Crisis, ASIA REPORT No. 120, Oct. 10, 2006, available at http://www.crisisgroup.org/library/documents/asia/timor/ 120_resolving_timor_lestes_crisis.pdf (analyzing the April-May 2006 violence in Timor Leste).

(155) Id.

(156) See Cohen, supra note 26, at 13-15.

(157) Id.

(158) Reiger & Wierda, The Serious Crimes Process in Timor-Leste, supra note 26, at 20-21, 31-33, 41.

(159) Id. at 36-37.

(160) U.N. News Centre, Sierra Leone: U.N., Government sign historic accord to set up special war crimes court (Jan. 16, 2002), available at http://www.un.org/apps/news/printnewsAr.asp?nid=2639.

(161) See Kendall & Staggs, supra note 130, at 6-7 (discussing the prosecutorial dilemma in drawing a line between indictees and insider witnesses).

(162) See Linton, supra note 26 (discussing the problems facing the ECCC in the context of other "hybrid" courts).

(163) Law on the Establishment of the Extraordinary Chambers, NS/RKM/1004/006 (Oct. 27, 2004), available at htlp://www.senate.gov.kh/06-01-01 .htm [hereinafter Law on the Establishment].

(164) See Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 CRIM. L.F. 185, 187-90 (2001). For a detailed history of the negotiations and the formation of the ECCC, see Craig Etcheson, A "Fair and Public Trial": A Political History of the Extraordinary Chambers, in Open Society Justice Initiative, JUSTICE INITIATIVES: THE EXTRAORDINARY CHAMBERS, (Apr. 18, 2006), available at http://www.justiceinitiative.org/db/resource2?res_id=103182.

(165) Etcheson, supra note 164, at 12; Kelly Dawn Askin, Prosecuting Senior Leaders of Khmer Rouge Crimes, in Open Society Justice Initiative, JUSTICE INITIATIVES: THE EXTRAORDINARY CHAMBERS, (Apr. 18, 2006), at 75, available at http://www.justiceinitiative.org/db/resource2?res_id=103182. On international standards, see the International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A, [paragraph] 14.1, U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316 (Mar. 23, 1976) (stating in part, "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.").

(166) Etcheson, supra note 165, at 5.

(167) Id. at 11 (discussing the "supermajority" voting requirements created for the tribunal).

(168) Such concerns are treated in great detail in Dinah PoKempner, The Khmer Rouge Tribunal, Criticisms and Concerns, in Open Society Justice Initiative, JUSTICE INITIATIVES: THE EXTRAORDINARY CHAMBERS, (Apr. 18, 2006), available at http://www.justiceinitiative.org/db/resource2?res_id=103182.

(169) Interview with Michelle Lee, Deputy Director, Office of Administration, ECCC, in Phnom Penh, Cambodia (May 31, 2006).

(170) See Law on the Establishment, supra note 163, arts. 3, 5, & 6.

(171) Royal Government of Cambodia, Royal Decree No. NS/RKT/1105/462, art. 1 (Nov. 22, 2005), available at http://www.cambodia.gov.kh/krt/english/legislation.htm (appointing Sean Visoth as Director of the Office of Administration for the ECCC); Royal Govermnent of Cambodia, Royal Decree No. NS/RKT/1105/466, at art. 1 (Nov. 21, 2005), available at http://www.cambodia.gov.kh/krt/english/legislation.htm (appointing Michelle Lee as Deputy Director of the Office of Administration for the ECCC).

(172) See Law on the Establishment, supra note 163, arts. 2-8.

(173) Id.

(174) The judges of the ECCC will consider the adoption of the proposed internal rules at a plenary meeting scheduled for late November 2006. The draft rules were completed and circulated to the judges on October 27, 2006, and to the general public for comment on November 3, 2006. See EEEC: Highlights, http://www.eccc.gov.kh./englisb-/news.list.aspx (last visited Jan. 16, 2007).

(175) Law on the Establishment, supra note 163, arts. 9 & 16.

(176) Id. at art. 3.

(177) The total of twenty-nine includes the Cambodian and international reserve judges. Official List of National and International Judges and Prosecutors for the Extraordinary Chambers in the Courts of Cambodia as Selected by the Supreme Council of the Magistracy on May 4, 2006, and appointed by Preah Reach Kret. Royal Decree of His Majesty Norodom Sihamoni, King of Cambodia, NS/RKT/0506/214, May 7, 2006, available at http://www.cambodia.gov.kh/krt/english/judicial_officer.htm.

(178) Law on the Establishment, supra note 163, arts. 5-6.

(179) Id. at arts. 20 & 23.

(180) Etcheson, supra note 165; PoKempner, supra note 168, at 37.

(181) Law on the Establishment, supra note 163, arts. 14, 20, & 23.

(182) Id. at art. 1.

(183) PoKempner, supra note 168, at 39.

(184) Prime Minister Hun Sen is the most prominent and well known example. See Etcheson, supra note 164, at 19 n.1.

(185) Id. at 8, 12-13, 17 (discussing negotiations over this limitation on the jurisdiction of the ECCC).

(186) Obituary: Ta Mok, BBC NEWS, Jul. 21, 2006, available at http://news.bbe.co.uk/2/hi/asiapacific/5128664.stm.

(187) ECCC, EEEC Organization, http://www.eccc.gov.kh./english/about_eccc.aspx (follow "Detailed Organization Chart hyperlink) (last visited Jan. 17, 2006).

(188) Interview with Rupert Skilbeck, Principal Defender, ECCC, in Phnom Penh, Cambodia (Jul. 2006).

(189) Id.

(190) James A. Goldston, Foreword, An Extraordinary Experiment in Transitional Justice, in Open Society Justice Initiative, JUSTICE INITIATIVES: THE EXTRAORDINARY CHAMBERS, (Apr. 18, 2006), available at http://www.justiceinitiative.org/db/resource2?res_id=103182.

(191) On the budget and funding structure for the ECCC, see Press Release, Pledging Conference for U.N., Governments Pledge $38.48 Million for Khmer Rouge Trials in Cambodia, U.N. Doc. DL/3082 (Mar. 28 2005), available at http://www.un.org/News/Press/docs/2005/13082.doc.htm.

(192) Id.

(193) Donors to the U.N. side include: Japan ($21.6 million), France ($4.8 million), Australia ($2.35 million), Canada ($1.61 million), Germany ($1 million), Netherlands ($2 million), Denmark ($525,000), Luxembourg ($66,000), Austria ($360,000), Sweden ($150,000), United Kingdom ($2.87 million), Norway ($1 million), and Republic of Korea ($150,000). Id.

(194) The U.N. Cambodia Trust Fund provided approximately $6 million. Interview with Margaret McKean, First Sec'y, U.S. Embassy, in Phnom Penh, Cambodia (Oct. 10, 2005).

(195) Interview with Reach Sambath, Public Affairs Officer, ECCC, in Phnom Perth, Cambodia (Feb. 2006) (providing staffing figures).

(196) PoKempner, supra note 168, at 42.

(197) Goldston, supra note 190, at 4-5; Open Society Justice Initiative, Priority Issues for Interested States Concerning the Extraordinary Chambers, Apr. 2006, [hereinafter Priority Issues], available at http://www.justiceinitiative.org/db/resouree2?res-id=103268.

(198) See Priority Issues, supra note 197, at 4-5.

(199) Tracey Gurd, Outreach in Cambodia: An Opportunity too Good to Miss, in Open Society Justice Initiative, JUSTICE INITIATIVES: THE EXTRAORDINARY CHAMBERS (Open Society Justice Initiative) (Apr. 18, 2006), available at http://www.justiceinitiative.org/db/resource2?res id=103182 (discussing the outreach efforts of the ECCC and Cambodian NGOs); Priority Issues, supra note 197, at 5-6.

(200) The limitations on the capacity of many Cambodian NGOs to develop and implement effective programs in some of these areas appeared during the "NGO Coordination Workshop" conducted in Phnom Perda in early June 2006 and chaired by David Cohen. This was also the conclusion reached by the expert consultants brought in to participate in this workshop and to advise NGOs planning to work in these areas.

(201) Priority Issues, supra note 197, at 10.

(202) Law on the Establishment, supra note 163, art. 12.

(203) Supreme National Council, Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period, (Sept. 10, 1992), available at http://www.cdpcambodia.org/untac.asp.

(204) Law on Criminal Procedure (Legal Assistance Unit of the Cambodia, Office of the High Commissioner for Human Rights) (Office of the High Comm'r for Hum. Rts., trans.,1993) (Mar. 8, 1993), available at http://www.cdpcambodia.org/soclaw.asp.

(205) Law on the Establishment, supra note 163, arts. 33-37.

(206) International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), arts. 14-15, U.N. GAOR Supp. (No. 16) at 52, 3d Sess., 1st plen. mtg., U.N. Doc A/6316 (1966).

(207) See Asian Human Rights Commission, Cambodia: Khmer Rouge trial a golden opportunity to advance judicial independence, not executive control, May 25, 2006, available at http://www.ahrchk.net/statements/mainftle.php/2006statements/552/ (discussing the issue of independence of the Cambodian judiciary and the ECCC); U.N. News Service, U.N. rights chief stresses vital need for independent judiciary in Cambodia, May 19, 2006 (explaining the general lack of independence and weakness of the Cambodian judiciary as observed by Louise Arbour, U.N. High Commissioner for Human Rights, on a visit to Cambodia), available at http://www.un.org/apps/news/story.asp?NewsID=18541&Cr=Cambodia&Crl; Cambodian League for the Promotion and Defense of Human Rights (LICADHO), Legal and Judicial Reform in Cambodia, Feb. 2006, available at http://www.licadho.org/reports/files/79LICADHOLegalJudicialReform Paper06.pdf. (recommending reforms and ways to strengthen Cambodia's legal institutions according to one of the leading Cambodian justice sector NGOs).

(208) Joshua Pantesco, UN Rights Chief Urges Cambodia towards More Independent Judiciary, THE JURIST, May 19, 2006, available at http://jurist.law.pitt.edu/paperchase/2006/05/ un-rights-chiefurges-cambodia-towards.php.

(209) See, e.g., Marwaan Macan-Markar, Sri Lankan Judge in Cambodia's War Crimes Tribunal, DAILY NEWS, May 20, 2006, available at http://www.dailynews.lk/2006/05/20/fea06.asp; Sophie Hunington, The Khmer Rouge Tribunal as an Opportunity for more than Answers, GENOCIDE WATCH, Aug. 2006, available at http://www.genocidewatch.org/ CambodiaTheKRTAnOpportunityForMoreThanAnswersAugust2006.htm.

(210) For example, training courses and workshops will be held for prosecutors and for Cambodian defense counsel in November 2006 and January and February 2007 through the support and activities of the Open Society Justice Initiative, the University of California, Berkeley, War Crimes Studies Center, the East-West Center, and the British Embassy in Phnom Penh.

(211) See supra notes 165-168 and accompanying text.

(212) Sok An, The Khmer Rouge Tribunal: What It Means for Cambodia, in Open Society Justice Initiative, JUSTICE INITIATIVES: THE EXTRAORDINARY CHAMBERS, Apr. 18, 2006, available at http://www.soros.org/resources/articles-publications/publications/ justice-20060421/jinitiatives_200604.pdf.

(213) Id. at 29-30 ("We are confident that the formula we have agreed to establish will not only meet our country's needs for justice in this egregious case, but will also assist the wider process of legal and judicial reform in our country, by providing a model court meeting international standards").

(214) See Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, supra note 164, at 200.

(215) Law on the Establishment, supra note 163, art. 7.

(216) See supra note 181 and accompanying text.

(217) The Supreme Court Chamber functions as the appellate chamber of the ECCC.

(218) E.g., Conference, East Timor: Lessons Learned, hosted by the U.C. Berkeley War Crimes Studies Center & the East-West Center for the ECCC, in Bangkok, Thailand (May 2006); Expert panel visit to the ECCC from the SCSL and the SPSC in East Timor, hosted by the U.C. Berkeley War Crimes Studies Center & the East-West Center, in Phnom Penh, Cambodia (June 2006); Open Society Justice Initiative, The Extraordinary Chambers Initiative, http://www.justiceinitiative.org/activities/ij/krt (last visited Jan. 21, 2007); International Center for Transitional Justice, Cambodia Initiative, http://www.ictj.org/en/where/region3/642.html (last visited Jan. 21, 2007).

(219) See Cohen, The Legacy of the Serious Crimes Trials, INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE (forthcoming, Nov. 2006) (manuscript on file with author).

(220) In Cambodia, a number of international and national NGOs and other organizations are developing or supporting programs to increase the impact of the ECCC trials on the domestic justice system. While extremely important, such programs should not relieve the United Nations of its obligation to make a serious investment in this area.

DAVID COHEN *

* David Cohen, J.D. UCLA 1972, Ph.D. University of Cambridge 1981, Doctor Honoris Causa, University of Zurich, April 2007; Sidney and Margaret Aneker Distinguished Professor of the Humanities, and Director of the Berkeley War Crimes Studies Center, at the University of California, Berkeley; Director of the Asian International Justice Initiative at the East-West Center, Honolulu. Author of numerous book and articles on ancient Greek law, comparative legal history, WWII war crimes trials, and the jurisprudence of contemporary international tribunals. His recent monographs in the area of international humanitarian law and war crimes tribunals include: Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (2006); Intended to Fail: Trials Before the Jakarta Ad Hoc Human Rights Court (2003).