NEW YORK/PHNOM PENH, Cambodia — In the evening hours of a sweltering Friday at the end of April, a team of U.N. lawyers in Cambodia alerted Secretary-General Ban Ki-moon to a crisis at a tribunal built to serve the millions of victims of the Khmer Rouge, arguably the most important court functioning in the world today.
That day, the lawyers' bosses -- a judge from Germany and a prominent Cambodian appeals judge -- had shut down an investigation of two Khmer Rouge military leaders for war crimes and crimes against humanity before it had even really begun.
"It is our duty to notify you that we consider, as a matter of law and procedure, that the co-investigating judges did not conduct a genuine, impartial or effective investigation and as such did not discharge their legal obligation to ascertain the truth," the lawyers wrote. "In our view, the decision to close the investigation at this stage breaches international standards of justice, fairness and due process of law."
The families of countless victims in the case would be denied justice. The leaders of Pol Pot's navy and air force -- accused among other crimes of eliminating more than 4,500 of their subordinates -- would never be held to account for their alleged involvement in torture, executions and forced labor.
And this would undoubtedly appear to have been done under pressure from the Cambodian government, which had publicly announced that the case, as well as another larger investigation, was not "allowed."
The team told Ban that it was writing "to seek your guidance on how to proceed in these circumstances."
In the seven months since the letter was written, the United Nations has not offered a substantive answer to these problems. Indeed, as matters continued to worsen, officials at headquarters in New York determined that their hands were tied, leaving matters to deteriorate to the point of scandal.
It wasn't supposed to be this way. In 2006, the United Nations and the Cambodian government jointly established the court, known officially as the Extraordinary Chambers in the Courts of Cambodia, to deliver justice for the crimes of a regime that had left up to 2.2 million Cambodians dead between 1975 and 1979 and devastated an entire nation. The trials were to consider the greatest number of victims of any since Nuremberg, a half century earlier.
Opening arguments began on Nov. 21 in the court's second case, a landmark of international law involving senior leaders of the former regime charged with crimes against humanity, genocide and war crimes for their alleged roles in a revolution that caused mass movements of millions of people at gunpoint, enslaving virtually all Cambodians in a regime of forced labor, imprisonment, hunger, torture and execution. Only three accused are likely to stand trial, as trial judges declared that a fourth defendant, former Social Action Minister Ieng Thirith, is mentally unfit (though prosecutors are appealing).
The leader of Pol Pot's secret police, Kaing Guek Eav, alias Duch, was convicted in 2010 in the court's first case of crimes against humanity, for overseeing the brutal extermination of an estimated 14,000 people.
But as the court came to two other politically sensitive cases at the end of last year, Dr. Siegfried Blunk, hand-picked by the United Nations to serve as one of two co-investigating judges, began a crude attempt to whitewash five suspects accused in the deaths of hundreds of thousands of people, including immediately telling his staff to seek new employment and that their office would likely close by the end of 2011.
In addition to the case closed in April, Blunk all but publicly announced his intention to dismiss a fourth case in which prosecutors said three mid-level officials were tasked with a wave of criminality that swept Cambodia in 1977 as the regime began to falter, resulting in forced labor, genocide and an estimated number of executions that added up to between 250,000 and 300,000 people killed.
Blunk remained equally opposed to a thorough investigation in this case, too, confining his inquiries to a handful of witnesses per suspect, whom he interviewed personally instead of delegating this task to investigators, and taking the unusual step of using the word "insolent" twice in a confidential order refusing a request from U.N. prosecutors to put evidence on file. One witness interviewed by Blunk described conditions that appeared less than likely to elicit candor -- he was conspicuously summoned to testify in front of local government officials and denied knowledge of any crimes, before changing his story when private researchers visited him later.
Blunk resigned in October this year amid calls for an investigation into allegations of his own misconduct. Judge Laurent Kasper-Ansermet, a Swiss financial crimes investigator, is now preparing to take office as his replacement. But he inherits an office now deserted by its legal staff and a situation in which all sides have dug in their heels for more than three years.
Court officials and observers say that, rather than strengthening the rule of law and holding the Khmer Rouge accountable for their crimes, the U.N.-sponsored effort has risked reinforcing the notion that powerful people can dictate the law. "This is the worst possible example that we can set here. If you have the right judge, you can secure impunity," a U.N. staff member who worked under Blunk told me. "We came here to do exactly the opposite."
"No one believed what we were saying ... until the whole thing blew up."