With over one hundred international adjudicating bodies currently in existence, international courts have been created across the globe to prosecute the perpetrators of both international and national conflicts. The Nuremburg and Tokyo tribunals, created by the Allies after World War II, comprised the first “generation” of international courts. Forty years later, a second generation emerged with such institutions as the International Criminal Tribunal for Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), and the International Criminal Court (“ICC”). The Extraordinary Chambers in the Courts of Cambodia (“ECCC”), established to prosecute the leaders of the brutal Khmer Rouge regime, is seen as part of a new, third generation of courts with significantly different infrastructure and sources of funding. As one of only four of its kind, the ECCC is referred to as a “hybrid” court and represents a new approach to international justice. Although there is no single model, hybrid courts generally combine the international, ad hoc nature of other tribunals—such as the ICTY and the ICTR—with domestic law and personnel. The ECCC, for example, incorporates aspects of Cambodian law into its proceedings and employs nationally appointed judges and prosecutors at the tribunal.
Blending aspects of international and national courts, hybrid tribunals also create a joint responsibility for funding. By dividing the financial obligations between a national government and an international organization like the United Nations, hybrid courts rely on the fundraising of two fundamentally different institutions, each of which has its own priorities and concerns. The Cambodian Royal Government announced last year that it could only contribute a fraction of its share. Reaction to this declaration—which came two years after the government assumed joint financial responsibility for the court and after the international community had already raised its share of the funding—revealed the frustration and miscommunication that can develop within a dual system. As hybrid courts represent the future of international adjudication, it is extremely important that they develop effective and sustainable funding mechanisms. This Note explores the possibilities of private funding for international hybrid courts in the context of Microsoft’s recent donation to the ECCC.
On January 10, 2007, the ECCC received its first private donation—$100,000 from Microsoft Singapore. 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 a budget left partially unfunded by the Cambodian government.
In an era of increasing globalization and the expanding reach of multinational corporations, it is not surprising that the private sector plays an ever-growing role in global politics. Such a role must be under constant scrutiny by the tribunals themselves, however, to ensure that international bodies and tribunals not only remain responsible to their member states rather than to private parties but also render fair and impartial decisions. With no specific guidelines in the ECCC Law regulating gifts, the tribunal must be cautious in accepting private donations in order to avoid conflicts of interest and consequent real or perceived corruption.
This Note proposes that if the ECCC wishes to solicit private donations, it should establish an internal foundation to monitor how the funds are used. Such a foundation could process all private donations, thereby ensuring that corporate interests do not gain excessive influence over internal tribunal policy, member states remain accountable for the court, individual donations do not become personal bribes, and the reputation of the ECCC is not compromised. A foundation could also track how the funds are used, providing greater overall transparency for the activities of the ECCC. This Note will first present the financial structure of the ECCC, explaining the unique hybrid nature of the court and how private donations would fit within this structure. Next, it will examine the legal provisions of the ECCC Law regarding donations and analyze possible legal bars and other potential conflicts of interest. Finally, the Note will conclude with a concrete proposal for a foundation to accept private donations. . . .
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