Transitional Justice in the Asia-Pacific (19 page)

Between 17 April 1975 and 6 January 1979, around one quarter of the population of Cambodia died at the hands of the
Party of Democratic Kampuchea (also referred to as the Communist Party of Kampuchea, or the Khmer Rouge (KR)). The catalogue of atrocity during the period of Democratic Kampuchea (the period during which the KR held power) is extensive. When the KR succeeded in their coup in April 1975, they declared a new start for the country – the calendar was reset to Year Zero, and the regime began to establish what it claimed to be a communist agrarian utopia. The results of this utopia were deadly. Somewhere between 1.6 and 1.9 million people died, most of them through starvation, disease and exhaustion that were either KR policy or foreseeable consequences of it.
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Up to 400,000 were tortured to death at a series of prisons set up around the country or executed in purges.
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Ethnic and racial minorities, religious leaders, professionals, educated people, government officials and people with contacts abroad were targeted in particular. Of those who did not manage to flee the country, almost 100 per cent of the Vietnamese were murdered, 50 per cent of those of Chinese descent, 40 per cent of the
Thai and Lao and 36 per cent of the Cham.
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All but forty-three doctors and all but seven lawyers were killed, along with 18,000 teachers and 10,550 students.
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In addition to the loss of such a high proportion of the Cambodian population, Cambodian society was also all but destroyed. Cities were evacuated, and people were forced to work under armed guard on collective agricultural projects with little food and no medical care. Children were used as prison guards and spies and forced or encouraged to commit acts of appalling violence. Money was abolished, schools closed and Buddhism suppressed. An offence of ‘familyism’ was devised to punish people who showed attachments to anything other than Angka (‘the organisation’, i.e. the KR party), and marriages were forced. Angka controlled all aspects of people's lives and condemned many of them to death.
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The regime was finally overthrown on 7 January 1979 when Vietnam intervened (with Soviet backing), captured
Phnom Penh and installed the People's Republic of Kampuchea (PRK) government. The PRK was staffed for the most part by ex-Khmer Rouge cadres who had fled to Vietnam during the purges, and included Hun Sen – now prime minister of Cambodia – as foreign affairs minister of the regime. The KR were driven into refugee camps along the border with Thailand, from which they maintained significant influence in Cambodian politics until KR leader Pol Pot's death in 1998.

The damage done to Cambodian people and their society during the period of Democratic Kampuchea was deep, long-lasting and perhaps impossible to ever remedy. Yet very little has been done to attempt to hold perpetrators accountable for their actions in the period until
recently. The PRK regime held the People's Revolutionary Tribunal in 1979, which, after five days of hearings,
found Pol Pot and his Deputy Prime
Minister for Foreign Affairs Ieng Sary guilty in absentia of genocide and sentenced them to death. The Tribunal was the first ever legal body to try or convict suspects for the crime of genocide, and did attempt to bring some form of justice to victims of the prior regime, though it was widely regarded in the West as a show trial organised by Vietnam's puppet government.
Between 1979 and 1997 no further trials were held and instead amnesties were issued first in 1994 to members but not leaders of the KR and second in 1996 to Ieng Sary.
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Only in 1997, eighteen years after the fall of the KR regime and four years after the 1993 elections which mark Cambodia's transition to some form of democracy did the Co-Prime Ministers of Cambodia request help from the United Nations (UN) to set up a tribunal to try KR leaders. Lengthy negotiations followed, and it was not until March 2003 that the international community and the Cambodian government agreed a way to try those who are alleged to have committed the greatest crimes in the KR period
. The
Extraordinary Chambers in the Courts of Cambodia (ECCC) were set up to try ‘senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.’
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In this chapter, which is substantially informed by research conducted at the ECCC and in Phnom Penh in 2011, I will first set out the key features of the ECCC, then document the successes and failures of the court, before broadening the analysis beyond the limited mandate of the court to look at the political context of efforts to bring justice in Cambodia, the actors and interests involved and the implications of the Cambodian case for recent accounts of the effects of trials on human rights and democracy. The Cambodian case is
a particularly rich one in the context of the three debates outlined in the Introduction to this volume, given that efforts to bring peace (through amnesty or pardon) were replaced, once peace was established, by efforts to bring justice (through trials), and those trials have both retributive and restorative elements. There is also a tension between top-down control (through the UN and the Cambodian government) and bottom-up influence through newly formed human rights NGOs who campaign for and around the trials.

The ECCC is a genuinely hybrid court – the first of its kind – in which local and international actors, money and procedures coexist (and often clash). In many ways it can be seen as an improvement upon past international and hybrid tribunals. The Chambers are a part of the Cambodian court system rather than a stand-alone tribunal and are located in a military compound outside Phnom Penh – close to where many of the crimes took place – instead of thousands of miles away (as is the case with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda). Unlike at the Special Court for Sierra Leone, the judges appointed by the Cambodian government at the ECCC (hereinafter ‘Cambodian’ or ‘national’) are in the majority in each Chamber vis-à-vis the judges appointed by the UN (hereinafter ‘international’). There are three Cambodian judges out of five in the Pre-Trial and Trial Chambers and four out of seven in the Supreme Court Chamber, which hears appeals. But a balance has been struck between local and international influence: judges must reach a ‘super majority’ (or ‘majority plus one’) judgement on any positive decision, meaning it is not possible for the Cambodian judges alone to override concerns of the international judges or vice versa. The other organs of the court are also divided along national-international lines. There are two Co-Prosecutors (one Cambodian and one international), two Co-Investigating Judges, and two Civil Party Lead Co-Lawyers. Most major administrative functions of the court (for instance the Budget and Finance, Personnel and
Security and Safety sections) also have co-heads. Importantly for public coverage of, and involvement in, the court, and in contrast to other war crimes trials, much of the business in trials is conducted in the Cambodian national language (Khmer), and a Khmer translation of all proceedings is broadcast into the public gallery.

The funding
for the ECCC is also hybrid, with the budget split into national and international components. The national component for 2012 is US$10.3 million, and the international component $35.4 million.
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Both components are funded by voluntary contributions, with the shares from main donors up to June 2012 as follows: Japan 50 per cent; Australia 11 per cent; United States 9 per cent; Germany 6 per cent; France 6 per cent.
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The major donors to the national component are Japan, the UN Trust Fund and the European Union, alongside the Cambodian government, which has paid around $5.12 million into the budget as well as provided the premises for the court and paid for the detention of suspects (claimed to be an in-kind contribution of $8.2 million, making the funds contributed by Cambodia overall second only to those contributed by Japan).

Finally, the law applied by the ECCC is hybrid – mostly Cambodian and therefore mostly civil, with some elements of international criminal law used when Cambodian law does not provide sufficient guidance on an issue, and some common-law practice used by international judges who find it hard to learn the civil law system. The civil law system means not just that Co-Investigating Judges rather than an Office of the Prosecutor conduct investigations for cases, but also that many more people may be parties to the case than under common law systems. Anyone with a prima facie reason to be classified as a victim can be represented in cases as a Civil Party. The ECCC is the first of the international and hybrid tribunals to allow victims of alleged crimes to participate in this way
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Perhaps the most significant and unexpected success of the ECCC is the fact that it is functioning at all. After years of negotiations, which were often at the verge of collapse, the ECCC has opened four cases. The court cannot, unfortunately, hold Pol Pot to account – he died in 1998, after having been tried by the leader of another KR faction, Ta Mok, for the murder of his second-in-command, Son Sen, and placed under house arrest in Thailand (ironic indeed that the only justice Pol Pot ever faced was from a member of his own regime – a regime which murdered almost all legal professionals in Cambodia while it held power). However, the accused persons being tried by the ECCC are of (for the most part) significant rank.

Case 001 is a single-accused case, which is now complete. After seventy-two days of evidence and the testimony of twenty-four witnesses, nine experts and twenty-two Civil Parties, Kaing Guek Eav (alias Duch), the former Chairman of the Khmer Rouge S-21 Security Center in Phnom Penh (also known as Tuol Sleng) was found guilty by the Trial Chamber on 26th July 2010 of crimes against humanity (persecution on political grounds, under which extermination, imprisonment, torture and other inhumane acts were subsumed) and grave breaches of the Geneva Conventions (willful killing, torture and inhumane treatment, willfully causing great suffering or serious injury to body or health, willfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and unlawful confinement of a civilian). Around 17,000 people are estimated to have been tortured at S-21, with most of them being taken, after signing coerced confessions, to be murdered at the ‘killing fields’ of Choeung Ek.
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Duch was sentenced to life imprisonment (increased by the Supreme Court Chamber from the thirty-year sentence imposed
by the Trial Chamber), and the trial is regarded as generally fair, having been conducted according to accepted standards of international due process.
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Case 002 is a more significant case, due to the status of its defendants. On 21 November 2011, the Trial Chamber began to hear evidence against Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea; Ieng Sary, former Deputy Prime Minister for Foreign Affairs (now deceased) and Khieu Samphan, former Head of State.
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The defendants are charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949 and genocide under international law and homicide, torture and religious persecution within the meaning of the Cambodian Penal Code from 1956. This is the centrepiece trial of the ECCC, as the accused are alleged to be the most senior surviving leaders of Democratic Kampuchea.

Cases 003 and 004 are less progressed, and may not progress at all beyond their current state (for reasons explained below). In September 2009, the international Co-Prosecutor requested the Co-Investigating Judges to initiate investigations of five additional suspects – the as-yet officially unidentified subjects of Cases 003 and 004. The accused are widely believed to be former KR military commanders Meas Muth and Sou Met (who are thought to be accused of murder, torture, unlawful detention, forced labour and persecution) in Case 003 and rumoured to be KR Secretaries (district chiefs) ‘Me’ Im Chaem, ‘Ta’ An and ‘Ta’ Tith in Case 004.
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Beyond confounding expectations by actually staging trials, other important successes cited by ECCC staff in interviews include allowing, for the first time in the history of international criminal justice, survivors to participate as Civil Parties. Although some victims feel that they are being asked to do too much (they are being given the responsibility for reconciling when senior KR cadres are not prepared to admit they were wrong or to ask for forgiveness, and many are being shielded from prosecution instead of put in front of the court) there is a broad consensus that the inclusion of Civil Parties in war crimes trials such as this is a progressive move as it has the potential to make justice more victim-centred or restorative.
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Almost as significant as Civil Party participation is public access to the Duch trial. The ECCC has the largest public gallery of any war crimes tribunal, and 28,000 people observed some part of Case 001 (usually a maximum of half a day) – which court staff proudly cites as the largest ever attendance at any court case, anywhere in the world.
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It's not entirely clear if this is indicative of public interest – Robert Petit, the first international Prosecutor at the ECCC, noted that there were long queues to attend the first days of the Duch trial, but that attendance fell off after that, and the ECCC itself paid for the majority of the attendees to be bussed in for the trial.
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However, the numbers of attendees to some extent speaks for itself – even if people did not see much of the trial or did not understand the technical argument or the context, they did still see Duch in the dock, which many found hard to believe after the KR enjoyed more than thirty years of impunity and
a not inconsiderable amount of power within Cambodia. The Outreach office of the ECCC has learned from previous tribunals and invested a great deal in communicating the activities of the ECCC to the public, and international donors supported the production of ‘Duch on Trial’, a television show summarising and discussing developments in Case 001, which attracted up to three million viewers – 20 per cent of the Cambodian population.
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