KHMER ROUGE TRIBUNAL
After a decade of preparation and delays, The Khmer Rouge Tribunal—a court set up to try the most senior and most responsible members of the Khmer Rouge the Khmer Rouge on charges of genocide, crimes against humanity, and other charges— officially began in February 2009 with the opening of the trial of Kaing Guek Eav, known as Duch, the man who ran the infamous Tuol Sleng prison camp. Officially known as the Extraordinary Chambers in the Courts of Cambodia (the ECCC), it was established as part of an agreement between the Royal Government of Cambodia and the United Nations. Regarded as both a Cambodian national court and a hybrid court, the ECCC was created by the government in conjunction with the UN, but remains independent of them, with trials held in Cambodia using Cambodian staff under mandate. Nevertheless, the Cambodian court invites international participation in order to apply international standards. It members include both local and foreign judges. [Source: AP, Reuters, AFP, Wikipedia =]
The tribunal has targeted “those most responsible” for the Khmer Rouge’s crimes. Tribunal spokesman Huy Vanna called the proceedings “the most important trial in the world” because of the high positions most of the defendants had in the Khmer Rouge. Clair Duffy of the Open Society Justice Initiative told AP: “It’s the first time the senior leadership of the Khmer Rouge is being tried by a court with international backing. It’s the first time thousand of victims have had a forum to tell their stories and demand reparations for their suffering.” =
One of the idea of the tribunal was to prosecute leaders of the Khmer Rouge before they died as a least a token gesture to the victims of the Khmer Rouge regime. But in many ways the results of the proceedings have been far from satisfactory. Some senior Khmer Rouge leaders died before they could be brought to justice. Lower level Khmer Rouge officers escaped prosecution. Victims have been largely denied first-hand accounts by the leaders of the motivations and ideology behind the mass killings by one of the world’s strangest and most enigmatic regimes. As of 2010, when the main indictments were handed down ten years and $100 million had been spent on the endeavor. Many Cambodians have felt a lot of money and time has been wasted on the tribunal. Even those who supported the trial have had doubts about the extent of which justice was served. =
As of December 2011 more than 100,000 Cambodians had flocked to the ECCC to witness the trial process first hand.
Background of the Khmer Rouge Tribunal
In 1997, Cambodia's two Co-Prime Ministers wrote a letter to the Secretary-General of the United Nations requesting assistance to set up trial proceedings against the senior leaders of the Khmer Rouge. After lengthy negotiations, an agreement between the Royal Government of Cambodia and the United Nations was reached and signed on June 6, 2003. The agreement was endorsed by the United Nations General Assembly. At that time, a total of four trials were envisioned, which would focus exclusively on crimes committed by the most senior and most responsible Khmer Rouge officials during the period of Khmer Rouge rule of 1975-1979. [Source: Mostly Wikipedia, also wire service reports =]
In December 2003, a United Nations team arrived to set up the tribunal. A similar tribunal had been set up to try people involved in the genocide in Rwanda in 1994. Human rights activist objected to the set up for the tribunal, which placed too much power in the hand of weak and corrupt Cambodian judiciary, which ultimately they felt could bend to the wishes of Cambodia Prime Minister Hun Sen. +
In 2004, Hun Sen passed a law allowing the trial of Khmer Rouge members to proceed. In October 2004, the law was approved by the parliament despite objections by Prince Ranariddhe that the money could be better spent helping the poor. Cambodia established a Khmer Rouge Trial Task Force to create a legal and judicial structure to try the remaining leaders for war crimes and other crimes against humanity, but progress was slow. The government said that due to the poor economy and other financial commitments, it could only afford limited funding for the tribunal. Several countries, including Canada, India and Japan, came forward with extra funds. But by January 2006, the full balance of funding was not yet in place. +
Nonetheless, the Task Force began its work and took possession of two buildings in the grounds of the Royal Cambodian Armed Forces (RCAF) High Command headquarters in Kandal province just on the outskirts of Phnom Penh. A specially built courthouse—with a huge bullet-proof screen in the court to protect defendants from revenge attacks—was constructed. +
In March 2006, the Secretary-General of the United Nations, Kofi Annan, nominated seven judges for a trial of the Khmer Rouge leaders. In May 2006, Justice Minister Ang Vong Vathana announced that Cambodia's highest judicial body approved 30 Cambodian and United Nations judges to preside over the long-awaited genocide tribunal for surviving Khmer Rouge leaders. The judges were sworn in early July 2006. +
In 2007 the court was given a $56.3 million budgets and were supposed to finish their work within three years. But even at this juncture there were many delays. At one point the process was held up for—and there were concerns the entire tribunal might collpase—in a dispute over fees of $200 and $2,000 demanded by the Cambodian Bar Association (CAB) from foreign lawyers for representing defendants and victims. The squabble was resolved when the CAB agreed to lower the $2,000 fee to $500. [Source: AP, March 2007, New York Times ++ ]
In August 2008, Cambodian Prime Minister Hun Sen said there would be no trial unless the international community contribued more money. At that point the United Nations had announced it had secured funding for its $43 million share of the $56.3 million and Hun Sen said Cambodia could only pay $1.5 million of its $13.3 million share. ++
The Khmer Rouge Tribunal officially began in February 2009 with the opennig of the trial of Kaing Guek Eav, known as Duch, the man who ran the infamous Tuol Sieng prison Camp. The main trial of the Khmer Rouge leaders began in November 2011. By that time all the defendants were in their 80s and most suffered severe health problems. ++
Make Up of the Khmer Rouge Tribunal
The tribunal is made of two tiers” one with five judges and a second with seven judges. Under the agreement between Cambodia and the UN, the tribunal is to be composed of both local and international judges, with Cambodians making up about 60 percent of the judges and prosecutors. Both the Pre-Trial Chamber and the Trial Chamber are composed of three Cambodian and two international judges, while a Supreme Court Chamber is made up of four Cambodian judges and three international judges. The United Nations tribunals for Rwanda and the former Yugoslavia were made of international judges and prosecutors. All international judges have been appointed by the Supreme Council of the Magistracy of Cambodia from a list of nominees submitted by the Secretary-General of the United Nations. There are also Reserve judges who may be called upon to serve in the event of an emergency. The judges will serve out their terms until the Tribunal completes its work. [Source: Wikipedia, New York Times]
The current judges in the Supreme Court Chamber are: 1) Motoo Noguchi from Japan; 2) Chandra Nihal Jayasinghe from Sri Lanka; 3) Agnieszka Klonowiecka-Milart from Poland; 3) Kong Srim (President) from Cambodia; 4) Som Sereyvuth from Cambodia; 5) Mong Monichariya from Cambodia; 6) Ya Narin from Cambodia. The reserve judges are Florence Mumba from Zambia and Sin Rith from Cambodia. [Source: Wikipedia ^]
The Trial Chamber is made up of: 1) Silvia Cartwright from New Zealand; 2) Jean-Marc Lavergne from France; 3) Nil Nonn (President) from Cambodia; 4) You Ottara from Cambodia; 5) Ya Sokhan from Cambodia. The reserves are Claudia Fenz from Austria. Thou Mony from Cambodia. Pre-Trial Chamber is made of: 1) Rowan Downing from Australia; 2) Chang-ho Chung from South Korea; 3) Prak Kimsan (President) from Cambodia; 4) Huot Vuthy from Cambodia; 5) Ney Thol from Cambodia. The reserves are Pen Pichsaly from Cambodia and Steven J. Bwana from Tanzania. ^
Organs of the ECCC: 1) Co-Prosecutors: Andrew T. Cayley from the United Kingdom and Chea Leang from Cambodia. 2) Co-Investigating Judges: Mark Brian Harmon from the United States andYou Bunleng from Cambodia. 3) Office of Administration: Acting Director: Kranh Tony from Cambodia; Deputy Director: Mr. Knut Rosandhaug from Norway. In June 2009 the international Co-Prosecutor Robert Petit resigned from his assignment due to "personal and familiar reasons". In November of the same year, Andrew T. Cayley was appointed as new international Co-Prosecutor, and his Cambodian co-prosecutor is Ms. Chea Leang. ^
Defense and Victim Support Sections of the Khmer Rouge Tribunal
The Defence Support Section (DSS) is responsible for providing indigent defendants with a list of lawyers who can defend them, for providing legal support and administrative support to lawyers assigned to represent individual defendants, and for promoting fair trial rights. The DSS also acts as a voice for the defence in the media and at outreach events, and organises a legacy program. The DSS legacy program is designed to increase understanding of the criminal trial process and the right to a fair trial within Cambodia. The program provides an opportunity for Cambodian law students and lawyers to gain experience practicing international law in the hopes that the court will lead to a lasting improvement in the Cambodian legal system. [Source: Wikipedia ^]
Heads of the DSS: 1) Isaac Endeley (April 2012 – present); 2) Nisha Valabhji (March 2011 - March 2012); 3) Rupert Abbott (Officer-in-Charge) (November 2010 - February 2011); 4) Richard Rogers (August 2008 - November 2010); 5) Rupert Skilbeck (August 2006 - August 2008) ^
The VSS (Victims Support Section) serves as the liaison between the ECCC and the victims or their representatives. Through the VSS, victims have the ability to seek support and assistance by participating in the ECCC's proceedings as Complainants or Civil Parties. The VSS is responsible for informing victims of their rights in the proceedings, and connecting them with legal representatives if they desire it. As such, victims are formally recognized as party's of the proceedings and eligible for either collective or individual reparations for damages caused during the regime. The VSS also ensures the safety and protection of its participants. This support and protection can be either physical protection for providing key testimony, or emotion support in the form of psychiatric help and assistance. In early 2012, Germany donates 1.2 million euro the VSS. This marks Germany’s fourth donation to the VSS since its official recognition as an organ of the ECCC. The financial assistance will go primarily towards legal representation for the victims, effective legal participation, and information dissemination. Germany has donated in total 1.9 million euro to the VSS. ^
Functioning of the Khmer Rouge Tribunal
According to the New York Times: The tribunal operated under the Cambodian judicial system which has been criticized for being weak, corrupt and susceptible to political manipulation, with the Cambodia judges being appointed the influenced of Prime Minister Hun Sen, who at one time was a member of the Khmer Rouge. Under a complicated "supermajority" formula, the Cambodian officials were in the majority but their international counterparts had have veto power over any disputed decisions. Decisions require support from a majority of the Cambodia judges, backed by at least one U.N.-appointed judge. The accused, the court said, were guaranteed fundamental rights. [Source: New York Times]
The trials of the individual defendants began with the reading of indictments against the accused. This was followed by statements from the prosecution and the defense that in turn were followed by accounts from witnesses and the defendant.
Due to Cambodia's predominantly French legal heritage, investigations were performed by the Investigating Judges, who conducted investigations and submit a closing order stating whether or not the case will proceed to trial. In September 2011 the tribunal announced it would split up the indictments according to charge into separate trials to speed up the proceedings.
When the procedural details were still being ironed out Seth Mydans wrote in the New York Times: It is an awkward formula, made all the more questionable by the meager qualifications of the Cambodian judges, who were appointed by Prime Minister Hun Sen and are answerable to him. Pragmatists say that a flawed trial is better than none at all, and that there is no choice but to proceed with the tribunal one has rather than the tribunal one might wish to have. Cambodia and the United Nations reached an agreement on the structure of the mixed tribunal in 2003, after years of negotiations over both technical and political differences but after that disagreements continued to stall the process. There are more than 100 procedural rules, some quite complicated, for the judges to agree on. But the core disputes appear to involve one fundamental, long-running issue: securing the trial’s independence from Cambodian political manipulation.[Source: Seth Mydans, New York Times, January 25, 2007 ~]
Legal Mandate of the Khmer Rouge Tribunal
“The remit of the Extraordinary Chambers extends to serious violations of Cambodian penal law, international humanitarian law and custom, and violation of international conventions recognized by Cambodia, committed during the period between 17 April 1975 and 6 January 1979. This includes crimes against humanity, war crimes and genocide. The chief purpose of the tribunal as identified by the Extraordinary Chambers is to provide justice to the Cambodian people who were victims of the Khmer Rouge regime's policies between April 1975 and January 1979. However, rehabilitative victim support and media outreach for the purpose of national education are also outlined as primary goals of the commission. [Source: Wikipedia ^]
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 establishes the crimes over which the Court has jurisdiction. Presently it has jurisdiction over certain crimes that violate the 1956 Penal Code of Cambodia, crimes under the Convention on the Prevention and Punishment of the Crime of Genocide, general crimes against humanity, crimes under the Geneva Conventions (war crimes), crimes under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and crimes under the Vienna Convention on Diplomatic Relations. If found guilty, criminals may be sentenced to prison or have their property confiscated. The Court, as with all other tribunals established by the United Nations, does not have the power to impose the death penalty. Thus far, five people have been indicted by the Court for genocide, crimes against humanity and/or war crimes. Only one has been convicted and has been sentenced to life imprisonment; the case against the other four is currently in the pre-trial stage. ^
Administration and Funding of the Khmer Rouge Tribunal
The Khmer Rouge Tribunal is expected to cost between $150 million and $200 million, of which about $60 million had been spent as of early 2009. Between 2005 and 2010, the tribunal spent $78.4 million in foreign donations. The Cambodian government has pitched in about $30 million. Some of the money is believed to have been squandered through corruption, In April 2009, AP reported that human rights groups alleged that Cambodia staff at the coourt paid kickbacks to keep their jobs. At various times different countries withheld funds because of corruption allegations. The United States was perhaps most vocal in it criticism of the court and consequently was reluctant to provide funds for it. [Source: Washington Post. AP]
In February 2008. the court announced that it would ask donors — Japan, Australia and several Western nations — to triple its 56.3-million-dollar budget so that it could continue to work for two years past its scheduled 2009 end date. The Cambodian government was supposed to pitch in about $30 million. As of March 2006 it had not raised the $13.6 million it was supposed to contribute to the tribunal. [Source: Washington Post]
Office of Administration Headed by Acting Director Kranh Tony and deputy director Knut Rosandhaug, the Office of Administration oversees the Budget and Finance, Information and Communication Technology, Security and Safety, General Services, Public Affairs, and Personnel units. Kranh and Rosandhaug are charged with coordinating these offices and supporting relationships with the UN and donors, and protecting the agreement forged. Their power is checked by Legal Officers who review all official documentation and advise the Office of Administration. [Source: Wikipedia ^]
Budget and Finance: Headed by Thaung Socheat in the National section, and Elisabeth Turnbull-Brown in the international section, the Budget and Finance offices are charged with the financial management and disbursement of the ECCC. Donations are approved by this office and disbursed accordingly, and any budget adjustments and financial reports are put forth by these offices.
Court Management: Run under Sophy Kong, the Court Management Section of the Office of Administration is responsible for running the Witness and Expert Support Unit, the Transcription Unit in charge of recording the Court’s proceedings, the Translation and Interpretation Unit, the Audio Visual Unit and the Library unit, which provides lawyers and other persons in the court with access to research material to aid them in their proceedings. The Court Management Section is responsible for running these offices in order to ensure the functionality of the judicial process of the ECCC and securing the necessary means for documentation of the process.
Local Support for Khmer Rouge Tribunal
Interviews and polls in recent years have shown that most people supported a trial. According to a survey conducted by the International Republican Institute, 67 percent of the respondents replied that they "very much agree" with a trial against the top Khmer Rouge leaders. In a more recent population survey conducted by UC Berkeley, 83 percent of the respondents agreed that the ECCC should be involved in responding to what happened during the Khmer Rouge regime.[ The same survey also concluded that the awareness of the ECCC had increased from 2008-2010.
Theary C. Seng, who spent years in a Khmer Rouge labor camp after her parents were killed told the Washington Post : “We can’t allow Cambodia to be a society where the killers of millions go unpunished while chicken thieves are locked behind bars for 10 years. I hope this is the start of a process that is going to force us to confront our past. Cambodia needs this—we deserve justice.”
Phoung Vuthy, a 53-year-old village woman told the New York Times. "I hate them. I lost my husband and never had a chance to have children. I want to see them punished." Her sister, Phoung Im, who said she was about 71, said: "We want to see a trial now. When will the Khmer Rouge be put on trial? I heard there will be a trial. When? When?"
One Khmer Rouge victim wrote on July 17, 2001: My name is Tong Ra; I am a teacher at Chum Kiri Junior High School in Chum Kiri District, Kampot Province....Under the pressure of this mighty fascist dictatorship, I myself lost an uncle and a brother who were both schoolteachers. They were killed and thrown into a grave at Srei Pagoda, called Po Vong. My remaining uncles and older siblings still do not know exactly where they were executed. To his day, I am in pain whenever I think about the past tragedies because of what we call “prosecuting perpetrators in a true and just tribunal.” This tribunal has been a desire of both victims and their surviving relatives. These people have been waiting anxiously for this moment for many years, and will never let it be forgotten, even though the tragedy occurred twenty years ago and the perpetrators are getting older and older. Being confident in justice, I hope your records will become indispensable evidence in solving and revealing the truth hidden in the regime of the “killing fields,” through the tribunals... Please bring justice to the victims and put an end to their long-unsolvable suffering as quickly as possible.
David Chandler, a leading authority on Cambodia history, told the New York Times: "There is no real concept of accountability in Cambodia." In interviews with rural people, the notion of justice often seems to be equated with revenge, and a proverb is sometimes cited: "Do not answer hatred with hatred." [Source: Seth Mydans, New York Times, January 23, 2006]
Tim Johnston wrote in the Washington Post: “Even the court's critics say that despite its shortcomings, the process is healing some of the wounds of a population still deeply traumatized by its experiences under the Khmer Rouge. "Despite the fact that it is very flawed, I see other benefits coming out of it," said Theary Seng. "We are using the court as a catalyst, as an illustration to jump-start discussions on healing, on reconciliation, on trauma, on history, on our own culpability, on the culpability of the Chinese and the Americans." [Source: Tim Johnston, Washington Post, March 31, 2009]
Problems with Conducting the Khmer Rouge Tribunal
There are concerns about getting good judges and lawyers. One human right worker commented, "Who's going to try them? They killed all the lawyers." There are also worries that the lawyers and judges will be pressured by the government. The Cambodian judicial system is weak and has a history of being bullied. The Cambodian government insisted Cambodians be on the tribunal, opening up the possibility they might be pressured by current Cambodia leaders, including Prime Minister Hun Sen.
People with a vested interests in the legal system in Cambodia threw up many obstacles. The Cambodian Bar Association, for example, prevented the London-based International Bar Association from training Cambodian lawyers connected with the Khmer Rouge Tribunal on the grounds that it was encroaching on the rights and sovereignty of the Cambodian Bar Association.
And there were concerns of violence against those carrying out the trial. In April 2003, a judge that sentenced a Khmer Rouge commander to life in prison was fatally shot by gunmen on a motorcycle.
Lack of evidence is also a problem. As was the case with the Nuremberg trial, there is plenty of evidence of horror and atrocities but little that links it to the leaders. The opaque, secretive and paranoid nature of the Khmer Rouge and its inner workings made it hard for prosecutors to dig up evidence to be used against the defendants. It was hoped that lower level Khmer Rouge fighters would testify against their superiors.
Many Cambodians worried about opening old wounds. A survivor a Tuol Sleng, where nearly everyone was killed, told the New York Times, "if facing the past will jeopardize the present, I do not think it is a good idea. These people live among us, and we cannot wish them away. I support the national policy of reconciliation and building peace, because this is what Cambodia needs first. I choose peace first, and justice later."
For a recent (2012) article concerning problems at the Court, including issues impacting fair trial rights, see Mary Kozlovski, "Bringing the Khmer Rouge to Justice," June 2012, published in IBA (International Bar Association) Global Insight, available at: http://www.ibanet.org/Article/Detail.aspx?ArticleUid=4edf3d1d-6653-4315-b490-e7d669c255ed
Hun Sen and the Khmer Rouge Tribunal
Hun Sen, Cambodia’s Prime Minister and a former member of the Khmer Rouge himself, was against the Khmer Rouge tribunal from the start. He once famously said the members that were eventually put on trial should be welcomed with flowers in the name of national reconciliation. In June 2010, Chea Sim, the head of the ruling Cambodian People’s Party (Hun Sen’s party) said it would not let the Khmer Rouge tribunal destroy Cambodia’s peace and national reconciliation.
Seth Mydans wrote in the New York Times: “Many said that Hun Sen did not want the trial to proceed, and created roadblocks to impede the progress of the trial. Among other things, he is believed to be under pressure from China, which presumably would be embarrassed if a trial directed international attention to Beijing’s former close ties to the Khmer Rouge. [Source: Seth Mydans, New York Times, January 25, 2007]
"Hun Sen has thrown obstacle after obstacle in the way of fair trials, an independent tribunal and speedy justice," Brad Adams, the Asia Director for Human Rights Watch, told the Washington Post . "We don't have an independent court. We have a politicized Cambodian judiciary matched with a minority group of U.N.-appointed people." [Source: Tim Johnston, Washington Post, March 31, 2009]
Criticism of the Khmer Rouge Tribunal
Some argued the tribunal was a failure because it failed to bring to justice many former Khmer Rouge who were responsible for atrocities. King Sihanouk was among those who argued the money could have been better spent fighting poverty.
Much of the criticisms surrounding the ECCC stems from the premature closings of Case 003 and Case 004. Many international critics say these closings stem from a reluctance by the Cambodian government to try Khmer Rouge officials who managed to switch alliances towards the end of the conflict. Furthermore, the ECCC has been criticized for its general stagnancy in relation to its finances. Since its inception in 2005, the ECCC has cost over US $150 million. In contrast, only one case has been ruled upon. Many in the international committee demand an outside committee to review the failures of the ECCC thus far. In accordance, many urge countries such as Japan, Germany, France, the US, and the UK to stop financing the ECCC until it becomes a more transparent and independent court. The court has also been criticized for its rejections of victim applications. A victim applying to participate in Case 003 was rejected because the judges claimed her psychological harm to be "highly unlikely to be true" and through a narrow definition of "direct victim", determined her an indirect victim in the case. The Open Society Justice Initiative calles for the UN to investigate the proceedings of the ECCC. A trial monitor for the OSJI claimed that the recent proceedings "don’t meet basic requirements or adhere to international standards or even comply with the court’s own prior jurisprudence." In late February 2012, the court requested another $92 million to cover its operating cost for 2012 and 2013. [Source: Wikipedia]
Luke Hunt wrote in The Diplomat: “The ECCC has faced severe criticism over its handling of investigations and the appointment of local and international staff. It has also been described as the most difficult tribunal since Nuremberg....Ey Sarih says the tribunal is worth the expense and he happily shows off his collection ECCC booklets explaining the make-up and functions of the tribunal. “Many, many people died, and they deserve to be before the court,” he says of the defendants. “Now my children are learning all about this in school and this is good.” [Source: Luke Hunt, The Diplomat, December 17, 2011]
Psychological Impact of the Khmer Rouge Tribunal
Some psychiatrists worried about the possible effects of a tribunal on traumatized survivors. Seth Mydans of the New York Times wrote: “Convictions of the former Khmer Rouge leaders could bring some clarity and relief to people who still do not understand the causes of their suffering, doctors say. But for many the trial could revive traumas that have been suppressed over the years. "At the moment I'm not sure whether a tribunal can bring peace or problems in our society," said Dr. Sotheara Chhim, a psychiatrist who is managing director of the Transcultural Psychosocial Organization, which was involved in the trial. He said his concerns were "retraumatization" of survivors who will come face to face with the past; new trauma on young people who did not experience the Khmer Rouge era; and renewed anger and hostility among victims. [Source: Seth Mydans, New York Times, February 16, 2006]
Dustin Roasa wrote in the Washington Post: “Prime Minister Hun Sen has also repeatedly warned that instability will occur if the court pursues more suspects, although experts and historians dispute that. "Cambodia must dig a hole and bury the past," he has said. But confronting the past is just what Cambodia must do to move forward, said Chhang Youk, of the documentation center. "Reconciliation in Khmer terms is reconnecting the broken pieces," he said. "It's our obligation to put these broken pieces together so that we can understand." [Source: Dustin Roasa, Washington Post, December 1, 2010]
“The center produced the first government-approved textbook about the Khmer Rouge, the 75-page "A History of Democratic Kampuchea." It distributed it in Anlong Veng in June as a supplement to the Education Ministry's high school history textbook, which contains fewer than four pages about the Khmer Rouge.
Failure of the Khmer Rouge Trials
Charlie Campbell wrote in Time magazine, “Virtually since the outset, allegations of corruption and politicization have dogged the ECCC’s glacial progress, and proceedings were halted for long periods as national staff went on strike after not being paid. Late last month, an agreement was finally reached for funding to be restored after the U.N. received certain assurances. Nevertheless, serious questions still hover over a tribunal that has delivered only one conviction in eight years at a cost of some $200 million. “This is no longer a legitimate court,” says Theary Seng, a prominent U.S.-trained human rights lawyer whose parents were killed by the Khmer Rouge. “It’s a sham. It does such a disservice to Cambodian victims and international justice in general.” [Source: Charlie Campbell, Time magazine, February 13, 2014]
The original ECCC was formed as a hybrid tribunal, comprising elements of international and domestic law, with proceedings heard by foreign and Cambodian judges. Four original cases were set out. Case 001 against Kaing Guek Eav, better known by his nom de guerre Comrade Duch, saw the former chief of the notorious S-21 prison in Phnom Penh, convicted for crimes against humanity relating to more than 15,000 deaths. He is currently serving a life prison sentence. Case 002 originally had four defendants. Nuon Chea, 87, was Pol Pot’s right hand man and known as “brother number 2.” Khieu Samphan, 82, was the former head of state. But former Khmer Rouge Foreign Minister Ieng Sery died, and his wife, Ieng Thirit, another senior regime figure, was declared mentally unfit to stand trial. Cases 003 and 004 have stalled — even the names of those under investigation were not officially revealed, although they have been widely circulated. And that represents the entirety of proceedings.
Compared to this paltry total, there were 161 indictments in the former Yugoslavia, 95 in Rwanda and 22 in Sierra Leone. But “I don’t think the present government wants to have any further indictments other than the four accused in Case 002,” Victor Koppe, a Dutch lawyer currently defending Nuon Chea at the ECCC, tells TIME. “There are strong indications that they probably feel it is getting close to themselves.”
Many established figures in Cambodian politics today previously had positions of influence within the Khmer Rouge.Cambodia’s strongman Prime Minister Hun Sen was himself a former Khmer Rouge battalion commander, and lost an eye in battle before fleeing to Vietnam to escape an internal purge. (In 1975, his battalion oversaw a brutal crackdown against the Muslim Cham minority group, although Hun Sen claims to have been recovering in hospital at the time.)
The debate rages over whether the Khmer Rouge was “essentially a top-down, pyramidal type structure,” as maintained by Prof. Greg Stanton, an expert in genocide studies and prevention at George Mason University’s School for Conflict Analysis and Resolution, or whether, as Koppe says, there were various and opposing factions responsible for atrocities. “To only focus on one faction within the Khmer Rouge is already questionable,” he argues.
Certainly, senior Khmer Rouge figures close to the Hun Sen administration have been barred from testifying, such as current National Assembly Chairman Heng Samrin and Senate President Chea Sim. “In any other international tribunal the importance and relevance of someone like Heng Samrin would be so obvious,” says Koppe, frustrated that his “firsthand knowledge of decisions being made in ‘75 and afterwards” cannot be called upon. Blocking Heng Samrin from court, he adds, “is a clear sign of the unfairness of the proceedings.”
Critics say the trials have been highjacked to specifically absolve former leading Khmer Rouge figures now within Hun Sen’s Cambodia People’s Party. “I’m in awe of Hun Sen,” says Theary Seng sardonically, deploring the “manipulated and whitewashed” history the ECCC is now helping to propagate. “It will go down in all the history books as a brilliant move.”
Crucially, Hun Sen insisted on proceedings taking place on home soil, a marked departure from other such tribunals, such as those investigating genocide in Rwanda or the former Yugoslavia, which took place in other countries. “True international tribunals [are] situated somewhere else and are much less prone to government influence or interference,” explains Koppe, who previously worked in the Yugoslavia and Sierra Leone tribunals. Stanton says it was important to base the court domestically “to give Cambodians a way to understand what happened in their country,” However, he concedes that “Judges who are part of the Cambodian system are always going to continue to be influenced by Cambodian politics.”
The U.N. insists that it has done everything possible to ensure fair and transparent proceedings. “The long history of negotiations leading to the creation of the ECCC clearly establishes that alternative structures for justice were advanced and thoroughly considered by the Secretariat and by Member States of the United Nations,” spokesman Lars Olsen told TIME via email. That is no comfort to victims such as Kilong Ung, for whom justice always felt beyond reach. “They are never going to catch the guy who starved my parents to death,” he says. “There are a lot of mid-level Khmer Rouge who got out with the refugees and are all over the world right now — some with the wealth they took with them. Just like the Nazis.”
Text Sources: Documentation Center of Cambodia, dccam.org, New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, Tourism of Cambodia, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Global Viewpoint (Christian Science Monitor), Foreign Policy, Wikipedia, BBC, CNN, NBC News, Fox News and various books and other publications.
Last updated May 2014