The Responsibility of Interested States to Fund and Monitor the ECCC

The Responsibility of Interested States to Fund and Monitor the ECCC

Anne Heidel
Documentation Center of Cambodia

The Extraordinary Chambers in the Courts of Cambodia (“ECCC”) is currently undertaking a funding drive to secure around 45 million US dollars to meet unanticipated costs and to provide for the Court’s operation through 2010. States such as the United States are considering whether or not to contribute funding for the first time. Some say that any new donations should be conditioned on the meeting of benchmarks demonstrating improvement in Court management. This raises the question of what role current Court backers should play in making the ECCC more accountable and convincing new states to provide funding.

State sponsors of U.N. resolutions, such as the one approving the Framework Agreement for the ECCC, seem to have no formal duties and only one implied task: to help the resolution get passed. After a tribunal is created, they have no clear obligations to provide funding or to encourage other states to fund. According to former US Ambassador-at-Large for War Crime David Scheffer, sponsorship only indicates “a willingness to be approached to press others to fund.” Others, however, say that states may have a “moral” obligation to ensure that an institution they helped create is able to function properly.

In practice state sponsors of tribunals often do provide funding and make at least hortatory efforts to encourage other states to do the same. For example, in General Assembly discussions on the ECCC Framework Agreement, the representative of Japan, the largest ECCC donor, stated “that the international community had a great stake in ensuring the success of the Extraordinary Chambers” and that, “[a]s a sponsor of the draft resolution, his delegation hoped that Member States … would provide financial and other support for implementation of the draft agreement.”[1]

One commentator has described the haphazard efforts to secure voluntary funding for tribunals in these terms: “the country making the request [to establish the tribunal] picks up part the bill and whichever other states have an interest make the balance.”[2] This is why state sponsors often form a “Group of Interested States” (“GIS”) to coordinate support after a new tribunal is established. For example, an informal GIS was formed as part of discussions on the implementation of the Security Council resolution on the Special Court for Sierra Leone (SCSL). Important state contributors and “activist” countries among the GIS, together with a representative of the U.N. Secretary General, then formed a Management Committee. The Management Committee leads SCSL efforts to seek additional funding. Additionally, it oversees the court’s non-judicial operations, reviews and adopts its budget, provides policy advice, and acts as a facilitator between the court and the larger GIS.[3] One commentator has called this Committee “an advocacy base within the U.N. system.”[4]

The ECCC also has a GIS, which met for the first time in 2004. Additionally, state donors, with France and Japan acting as co-chairs, meet regularly in Phnom Penh as “Friends of the ECCC” for updates on the Court’s progress. However, unlike the SCSL Management Committee, this group does not actively assist the ECCC’s efforts to find new donors or provide budget advice or oversight. With many states questioning why they would want to get involved with a court plagued by accusations of corruption and mismanagement, it may be time for the Friends to assume this “moral” responsibility and assure potential donors that the ECCC is a worthwhile investment.