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A Private Solution:
The Possibility of Private Donations to Fund the ECCC
Alison Kamhi
The Extraordinary Chambers in the Courts of Cambodia (ECCC) received
its first private donation on Wednesday, January 10, 2007, from
Microsoft Singapore in the amount of $100,000. Such a donation,
coupled with ongoing negotiations between the ECCC and the Bill and
Melinda Gates Foundation about providing additional funding, raises
the possibility that the ECCC could turn to private donors to
supplement its arguably inadequate budget.
In an era of increasing globalization and further concentration of
wealth in a few countries (and within fewer households within those
countries), it is not surprising that the private sector plays an
ever-increasing role in global politics. Such a role must be under
constant scrutiny, however, to ensure that international bodies and
tribunals remain responsible to their member states and not to
private parties, and that any decisions made remain impartial. With
no specific guidelines in the ECCC Law, the ECCC must be cautious in
accepting private donations and vigilant in regulating them.
If the ECCC wishes to solicit private donations, this article
proposes that an agency should be established within the ECCC to
monitor how the funds are used. Such an agency could process all
private donations, ensuring that large corporations do not gain too
much influence in internal Tribunal proceedings as well as
preventing individual donations from becoming personal bribes. An
agency could also track how the funds are used, providing more
overall transparency for the activities of the ECCC. This article
begins with the present financial structure of the ECCC, explaining
the unique hybrid nature of the court and how private donations
would fit within this structure. Next, it examines the legal
provisions of the ECCC Law regarding donations and analyzes possible
legal bars and other potential conflicts of interest. The article
concludes with a concrete proposal for an agency to accept private
donations.
Current Funding
Funding Structure.
Currently, the ECCC receives its funding from the Cambodian
government, foreign governments, and international bodies. The
financial arrangement for the ECCC was the source of much
consternation and was one of the topics during the four-year
negotiations that took place before Cambodia and the United Nations
(UN) agreed on the ECCC’s structure. The final agreement was to
split the cost of the ECCC between the UN and the Cambodian
government, but both parties have since received significant
portions of their shares from foreign governments. The ECCC budget
is managed by both the Royal Government of Cambodia’s Task Force and
the United Nations Assistance to the Khmer Rouge Tribunal (UNAKT).
In total, the UN has received donor pledges from eighteen countries
as well as from the European Union (notably, the United States has
not contributed), totalling $42,758,190. Adding Microsoft’s recent
donation of $100,000, this figure is quite close to the goal of $43
million.
Funds for the Cambodian share have progressed less successfully,
with only $3,725,000 of the required $13,300,000 secured. Cambodia
received donations to help with its financial obligation from India,
Thailand, and the European Union. Cambodia itself has provided $1.5
million. The outstanding balance is currently at $9,575,000 for the
Cambodian side. It is then no wonder that the ECCC, and particularly
the Cambodians, are excited about this latest donation; even though
it was designated for the UN side, it will hopefully be the first of
many private donations that will ease the financial burden of the
ECCC.
Funding Shortcomings.
Assuming that all of the required money is collected, the ECCC will
operate (and is currently operating) on a budget of $56.3 million.
This estimated budget, projected for three years, allows for less
than $20 million a year. While at first glance this sum may seem
large for a single tribunal, it is miniscule compared to other
international tribunals. The International Criminal Tribunal for the
former Yugoslavia and the International Criminal Tribunal for
Rwanda, for example, each currently cost over $200 million per year.
The Special Court for Sierra Leone (SCSL), which had an original
budget similar to that of the ECCC, at $57 million for three years,
is now in its fifth year and has already cost over $107 million. The
SCSL has required more money than originally planned not because of
poor oversight, but because the tasks involved in the tribunal were
simply more costly than previously recognized.
The ECCC similarly needs more money, not due to corruption or
mismanagement, but because the current budget does not allow for
certain necessities. The Open Society Justice Initiative documented
a list of inadequacies in the budget in October 2006. Among other
deficits, there is no money in the budget for: convening judges for
a plenary session before the trial commences; travel for UN staff to
engage in outreach; international witness protection outside of
witness transportation; offices (or officers) to develop trial
completion strategies; travel for prosecutors; scanners, visual or
audio recording equipment; or online legal databases, such as
Westlaw or Lexis. Against the backdrop of such shortcomings, the
possibility of private donations looms large and promising.
Funding Disparities.
Internally, ECCC employees receive salaries dependant on whether
they are hired by Cambodia or by the United Nations. ECCC Law
provides that the expenses of foreign officials and staff be covered
by the UN, while the expenses of their Cambodian counterparts are
paid by the Cambodian government. Article 44 of the ECCC Law states:
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The expenses and salaries of the Cambodian administrative
officials and staff, the Cambodian judges and reserve judges,
investigating judges and reserve investigating judges, and
prosecutors and reserve prosecutors shall be borne by the
Cambodian national budget;
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The expenses of the foreign administrative officials and staff,
the foreign judges, Co-investigating judge and Co-prosecutor
sent by the Secretary-General of the United Nations shall be
borne by the United Nations Trust Fund;
-
The salaries of the foreign administrative officials and staff,
the foreign judges, Co-Investigating Judge and Co-Prosecutor
shall be borne by the countries that contribute them at the
request of the Secretary-General of the United Nations.
Though perhaps appropriate for a hybrid tribunal, such a division of
finances inevitably leads to disparities in wages, with Cambodian
prosecutors receiving roughly half of the international prosecutors’
salaries. As Cambodian judges observe their international
counterparts performing similar work but receiving twice the pay,
this inequality in salary spurs differences in motivation and
perceived self-value. One wonders if there is truth to the Cambodian
prosecutor’s quip that with only half a salary, the public can
expect only half-justice. Private donations could potentially do
much to lessen the disparity in resources (even if not in salaries)
of the Cambodian and international employees while adding a
psychological boost to the Cambodian officials, showing them that
the world is indeed invested in their work.
Private Donations
Against the backdrop of such budgetary shortcomings and
disparities, the possibility of private donations presents a
potential alternative. In theory, it is a plausible solution;
international bodies and tribunals have long accepted private
donations. In practice, the procedure of receiving private donations
will bring with it new complications, as agencies will have to be
created to track the funds, monitor for conflicts of interest, and
raise funds. Such agencies could bring additional benefits, however,
such as increased transparency of ECCC finances and the opportunity
for citizens, through financial investments, to become more
emotionally invested in the trial.
The ECCC Law specifically allows non-governmental contributions in
its Expenses Section:
The Extraordinary Chambers may receive additional assistance for
their expenses from other voluntary funds contributed by foreign
governments, international institutions, non-governmental
organizations, and other persons wishing to assist the proceedings.
While specifically permitting donations from non-governmental
organizations and private parties, the clause does not mention any
bar to accepting these donations. The operative words might be “may
receive,” presumably allowing the ECCC to reject a donation if its
receipt would create a conflict of interest. For a comparison, the
Iraqi Special Tribunal similarly does not preclude private
donations; the lack of criteria for private donations has
nevertheless been interpreted to mean that donations can be accepted
provided they do not endanger the court’s neutrality, which would
violate the Tribunal Statute’s impartiality requirement.
The harder question is how to determine if a donation would affect a
court’s neutrality. Microsoft’s recent donation was earmarked to be
used for the UN’s share of the ECCC budget. Though Microsoft
designated the money to be used to ease the UN’s financial
obligation (as opposed to Cambodia’s), the UN, and in particular the
ECCC, retains control over how that money is ultimately used. The
situation might have been more complicated if Microsoft had directed
that its funds to be used for a specific ECCC activity, such as
protecting witnesses.
While such a donation is not legally prohibited, it has the
potential to influence the internal ECCC agenda by prioritizing
certain activities differently than the ECCC might have done if
simply given the money. If such donations happen frequently, the UN
(and the ECCC) could become tethered to private wishes.
Similar concerns have been raised regarding private donations to the
UN in general. In 1997, Ted Turner pledged $1 billion to the UN; at
the time, this was the largest single donation ever made to any one
organization. The concern raised was that if the UN became reliant
on private sources, it might become more responsible to private
individuals than to member states. Additionally, the act of
encouraging individual donations was seen as a possible way of
relieving UN member states of their financial obligations to the UN
and thus undermining membership accountability. In part to alleviate
such concerns, Turner established a United Nations Foundation (UNF)
to distribute his donation in annual increments of $100 million for
ten years. The UN also established a foundation to receive the
funds, the United Nations International Partnership Trust Fund
Office (UNFIP), which made the decisions on which programs qualified
for UNF money.
If the ECCC plans to encourage more private donations, a similar
foundation would have to be established to accept the money. Though
the ECCC Law, unlike the UN Charter, explicitly allows private
donations, the creation of an agency within the ECCC to disburse the
funds would substantially decrease the influence individual donors
would have over their funds. Even if the agency still acted under
broad guidelines from donors (such as Microsoft’s direction to give
the money to the UN side of the hybrid tribunal), the agency could
work with (and within) the ECCC to ensure that the money was being
spent to fund projects the ECCC prioritizes (and not those that
donors choose).
To assure donors that their money is being used efficiently, the
agency could keep documented records of how, when, and where the
donated money was spent. Such record-keeping would increase the
financial transparency of the institution and inspire confidence in
its daily affairs. This financial documentation would be especially
beneficial for an institution such as the ECCC, which, despite its
relatively small budget, has already been lambasted by the Cambodian
government as a poor use of money; as reported in The Cambodia
Daily, “Assembly President Prince Norodom Ranariddh dismissed
the Tribunal’s value Monday, saying its projected budget would be
better spent improving the nation’s agricultural sector.” Meticulous
financial records could show the public what is being accomplished
by detailing the projects funded.
In addition to fears about private corporations having too much
influence over the Tribunal’s activities, an entirely different
problem of conflict of interest arises when considering donations
from private individuals. A private party might be interested in
contributing funds not to persuade the UN to concentrate on certain
issues, but rather to sway judicial decisions in a particular case.
The ECCC Law does not specifically prohibit participants in the
Tribunal from donating money, but such a contribution would
hopefully be rejected by the court. Attorneys, defendants,
witnesses, and joined civil parties should be barred from donating
to the ECCC in order to prevent any real or perceived bribery
attempts. Although many victims of the Khmer Rouge understandably
wish to contribute funds to the ECCC to ensure that the court
succeeds, the idea of possible plaintiffs funding their own
prosecutors and judges seems contrary to the system of law the ECCC
is trying to implement; no one should have to pay for justice.
Additionally, in order for the victims to receive justice, the
judges must be impartial. To have victims pay to support their own
court would paradoxically ruin the credibility that the court – and
they themselves – will receive.
A more complicated case might arise if an individual were allowed to
donate, and then later decided to join a suit as a civil party.
Should an individual be barred from bringing a case (essentially
losing the right to trial) because of a previous donation? The
United States, for example, does not prohibit civil parties from
donating to judicial elections and then presenting cases to the same
judges whose campaign they financed. While a slightly different
situation, the potential for a conflict of interest is similar:
judges hearing cases from parties who have given them money. Again,
though there is no legal bar, the possibility of victims having
financial influence over their future judges seems to present a
significant conflict of interest. Since it is currently unclear
whether the ECCC will even allow complaints from private
individuals, this potential conflict might be moot.
In the event that such complaints are permitted, however, the agency
could use its discretion under the ECCC Law (“may receive”)
to reject donations from parties who might affect the court’s
neutrality. Such an arrangement seems susceptible, however, to abuse
of discretion. Alternatively, the agency could keep all donor
information confidential; the agency could manage the funds and
erect a “Chinese Wall” to prevent prosecutors and judges from
knowing who contributed what.
Another option is that the ECCC could simply require that all
donations be donations of goods specifically to be used for the
Tribunal and not money. In-kind donations have been successful in
the past with international tribunals. In 2000, for example, a group
of American prosecutors worked with IBM to deliver $3 million in
computers, technology, and training to the United Nations War Crimes
Tribunals in Bosnia and Rwanda; this gift marked the largest private
donation in the history of the tribunals. Such a restriction on
donations, however, is not in the best interest of either the ECCC
or the donors. It is often much more beneficial for the ECCC to have
money to spend as it pleases (on both technology and outreach
projects, for instance); additionally, it is often much easier for
private corporations and individuals to write a check than to ship
expensive equipment overseas. Furthermore, accepting in-kind
donations does not necessarily reduce the chances of donations being
used to influence the court or bribe judges. Buying expensive cars
for prosecutors (no matter how much they are needed for
transportation) could be just as powerful a corruption tool as
paying them in cash.
The creation of an agency, however, such as previously mentioned to
combat the financial influence of private corporate donors, could
similarly neutralize individual donations. Conflicts of interest
could be avoided by requiring that all individual donations be
handled by an independent foundation. The same foundation that could
disperse funds made by larger corporations to the Tribunal could
also accept and distribute individual donations. After being
funnelled through the foundation, individual donations would be part
of a larger pool of money and rendered essentially anonymous.
Proposal
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Alison Kamhi is a Harvard JD candidate and Chayes Fellow, Human
Rights Program Fellowship Winner, who is working on the access
procedure for documents DC-Cam holds.
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