2 March 2009
In September 2008 the *NI* carried an article ('Year Zero on trial
') that raised serious questions about the trial of five Khmer Rouge leaders. *Tom Fawthrop* argues that, 30 years after the terror of the ‘killing fields’, Cambodians need both justice and closure.
Pol Pot and his victorious Khmer Rouge army marched into Phnom Penh, the capital of Cambodia in April 1975 – Year Zero. In a few short days the Khmer Rouge turned back the clock, driving people out of the cities, transforming Cambodia into a vast network of slave labour communes and mass graves. The goal was to return the country to a peasant economy. There would be no class divisions, no money, no books, no schools and no hospitals. The city was drained of its inhabitants. Those who refused were shot. In four short years nearly two million people died from murder, torture, disease and starvation.
Today, Cambodia is a popular tourist destination. Phnom Penh is thriving. Busy cafés, trendy restaurants and noisy nightclubs dot the streets. But the deep trauma of the ‘killing fields’ has yet to be addressed. An agreement between the Cambodian Government and the UN to bring surviving Khmer Rouge leaders to justice was only signed in 2003.
Two years prior to that, the Cambodian National Assembly passed a law to create a court to try serious crimes committed during the Khmer Rouge’s 1975-79 regime. Officially the court is called the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Extraordinary Chambers or ECCC). The resulting joint UN-Cambodia Tribunal (known as the Khmer Rouge Tribunal) was launched in 2006. The first trial began in February this year.
Denial of justice
Beneath the surface calm of Khmer smiles, the absence of healing and the denial of justice have cast long shadows over this country and its people. Old wounds and scars, both mental and physical, have long festered, exacerbated by the lack of closure.
Despite the passage of time, Cambodians have never stopped clamouring for justice. Youk Chhang, director of the Documentation Centre of Cambodia, which was set up to investigate the crimes of the Khmer Rouge, says the Tribunal is important because, ‘we still suffer from the legacy of Pol Pot. We have so many terrible experiences bottled up inside us… The only way to free us is to have a complete accounting – to bring real justice.’
The Khmer Rouge Tribunal (KRT), based in Phnom Penh, is a ‘hybrid’ system. It brings international jurists together with local lawyers and judges, within a legal framework that blends Cambodian rules of evidence with international law.
But the KRT has sparked deep controversy and drawn enormous flak in its painfully slow attempts to deliver justice for crimes committed by the Khmer Rouge 30 years ago. Indeed, the swirl of negative comment, coupled with serious funding problems, has fuelled speculation that the KRT could collapse long before any trials are completed. Allegations of corruption and political interference from Prime Minister Hun Sen have dogged the KRT from the beginning.
But there are countless reasons why this legal process should continue, despite its flaws. Support for the Tribunal is critical, both to honour the memory of the dead and to provide justice and accountability for survivors.
All attempts to advance international justice in the last decade (including international tribunals on human rights crimes in Bosnia, Rwanda and Sierra Leone) have been dogged by flaws and political problems. But the Cambodian Tribunal – the tribunal that pundits said would never happen – has been mired in intense political controversy for years.1
Thanks to the ‘Cold War’ and the ‘evil empire’ politics of US President Ronald Reagan, Pol Pot and his cohorts enjoyed almost perfect impunity from prosecution during the 1980s and 1990s. This despite passionate pleas from exiled Cambodians and the Phnom Penh Government to remove the Khmer Rouge from the country’s seat at the UN – and to put the regime on trial for mass murder.
Contrary to some claims, Western governments have not imposed the Tribunal – it is the belated fulfilment of Cambodian demands for justice that date back to the early 1980s, shortly after the country was liberated. But it was only after the end of the ‘Cold War’ and the fall of the Soviet Union that Western countries found it politically convenient to come on board. Hence, history itself is the clearest rebuttal to the charge that the trial is a game scripted by some Western governments.2
Cambodians have been intimately involved in setting up the Tribunal, including hammering out its legal framework and supporting its ‘hybrid’ approach. The Phnom Penh legal taskforce insisted that UN legal advisors should treat them as respected partners rather than students receiving legal tuition from world experts. Former UN chief of legal affairs Hans Correll, who led negotiations for the establishment of the KRT, complained that the Cambodians were ‘far more difficult to deal with than the Sierra Leone officials’ and far less subservient to the dictates of legal experts in the UN’s New York headquarters.
The Cambodia Tribunal has been designed to target the surviving senior leaders from the inner core of the Khmer Rouge – ‘those most responsible for crimes against humanity’.
Five leaders have been arrested and indicted on the charge of ‘crimes against humanity’. They will be held accountable for the deaths of 1.7 million people, horrendous torture, policy-induced starvation and disease. They will also stand accused of the systematic destruction of family life and subjugation of the population to a nightmare existence in slave labour camps. Other leaders died before they could be arrested and brought to trial. Pol Pot died in 1998.
The first to come to trial will be Kaing Kek Ieu, nicknamed Duch, the former director of ‘Security Office 21’ – the infamous Tuol Sleng prison where more than 16,000 people were tortured and killed. There were only seven survivors. In May 1976 the Khmer Rouge set up S-21 in a former high school in Phnom Penh. The purpose: to interrogate and exterminate anyone suspected of opposing the regime.
Cambodia is so pockmarked by hundreds of mass graves (thoroughly documented by researchers from the Genocide Documentation Centre in Phnom Penh) that in every province you can stumble on grisly reminders of bloody purges and burial sites of the victims. During Pol Pot’s brief rule more than 22 per cent of the population was killed. Regardless of the twisted ideology that rationalized these murders, international law defines such acts as ‘crimes against humanity’. Genocide and mass murder – whether in Chile, Rwanda, the former Yugoslavia or Cambodia – should not be quietly forgotten and dismissed.
The KRT, as with all the international tribunals, has its shortcomings. Some argue that its mandate is not broad enough and the other responsible parties will escape justice. President Richard Nixon’s Secretary of State, Henry Kissinger, was the main author of the barbaric US bombing campaign against Cambodia, which paved the way for the Khmer Rouge victory. Kissinger, critics argue, would also be on trial if international justice weren’t so tilted in favour of the West.
A valid point, but sadly immunity from prosecution still exists for Western leaders. Think of the NATO bombing of civilians in Belgrade during the Kosovo War, or of Israel's role in the massacre of Palestinian refugees in Beirut, or more recently, in Gaza. The US has deliberately exempted itself from the International Criminal Court. But current flaws in international justice should not be used to exonerate the Idi Amins, the Pinochets and the Pol Pots of this world.
If Cambodians had insisted on extending criminal culpability beyond Pol Pot’s 1975-79 regime to cover earlier events – for example, US bombing in the early 1970s – this trial would never have got off the ground. Or it would have been marginalized as another ‘People’s Tribunal’ without official judicial status or international recognition.3
The whole truth will not emerge in the KRT. But the research and documentation presented to the court will provide an excellent basis for the real history of the period to emerge. It’s critical that the next generation learn what really happened under the Pol Pot regime and why. Kissinger will not be indicted in the courtroom. But the defence counsel will almost certainly mention his name and allude to his crimes during the trial.
Far from ‘rewriting history’2 the Cambodian Tribunal will be making history. The Documentation Centre of Cambodia has turned over to the prosecution more than 58,000 documents, including vital cables and communications sent by top leaders.
The final judgement on the Pol Pot era will become the authoritative base of history books and the teaching of future generations. Several notable Cambodia scholars are employed by the judicial investigation team as part of UN support for the trial.
More than 10,000 villagers have been bussed to Phnom Penh to see the Tuol Sleng Genocide Museum, to visit the mass graves at Choueng Ek, to tour the Tribunal complex and to meet prosecutors and judges. Local newspapers, radio and TV have already begun extensive pre-trial coverage.
Cambodian human rights organizations and other NGOs in the country are hopeful that the Tribunal can set new standards for judges and the rights of the defence in domestic courts and provide a new foundation for a fairer and more competent legal system.
Many governments, including China, the US, Singapore, Thailand and Britain, conspired to block and delay this Tribunal during the Byzantine politics of the ‘Cold War’ era. Since then new obstructions and countless attacks on the legal framework have come from many quarters including the George Soros-funded ‘Cambodia Justice Initiative’. China still opposes the KRT and delayed its formation by exerting diplomatic pressure on the Cambodian Government.
But it is Cambodians – not Western lawyers, Western governments or the Chinese state – who have the most to gain from the Tribunal and who would lose the most should the tribunal falter or fail.
The KRT will bring some satisfaction to Cambodians that justice – however belatedly – has finally caught up with at least some of the chief perpetrators and policymakers of the Pol Pot regime.
The alternative – to abandon the Tribunal or to allow it to collapse without sufficient funding – would be a crushing blow to Cambodian expectations of accountability and justice. And that would be one more tragedy for a nation that has never fully recovered from the collective traumas inflicted by decades of bombing, genocide and civil war.
Victims speak out
Cambodia’s KRT is the first UN-mandated Tribunal to allow victims to participate directly – with the right to access court documents and the right to be heard as a third party. UN assistance to the KRT includes a ‘Victims Unit’ to provide technical and legal assistance.
However, the initiative is not without problems. More than 1,800 people want to testify, and how they can be accommodated without swamping the court and delaying the trials is a serious question.
Nonetheless, the participation of victims has given Cambodians an additional sense of ownership over the process. It also helps confirm the legitimacy of court proceedings taking place decades after the crimes took place.
International jurists are closely monitoring the Tribunal to determine its impact on international human rights trials elsewhere.