On April 17, 1975, the Khmer Rouge marched into Phnom Penh. The residents of Cambodia’s capital city lined the streets to welcome them, applauding, hoping the victory would mean the end of the country’s bitter civil war.
"We were happy," said 83-year-old Chum Mey, who lived in Phnom Penh and worked as a mechanic. "We thought it would mean no more war."
But the happiness wasn’t to last.
Within hours, officials ordered the evacuation of the city - ostensibly because of the risk of American bombing and food shortages. It was the beginning of a nightmare few could imagine.
"They told us we would have to leave Phnom Penh for five days, but we ended up living in the countryside for a very long time," said Nou Samream, 68, struggling to hold back tears; her voice breaking. "We weren’t killed, but we were left in the jungle to die." Nou, who has trouble sleeping, lost 11 family members as the Khmer Rouge attempted to create an agrarian utopia. Her parents and husband all starved to death.
The UN-backed Extraordinary Chambers in the Courts of Cambodia, better known as the Khmer Rouge Tribunal, was set up to hold the regime to account and ensure justice for as many 2.2 million people who are thought to have died while the Khmer Rouge controlled the country. But financial problems, the advanced age of the defendants and political manoeuvring have hampered the court’s ability to do its job. Established in 2006, it has secured just one conviction - of the man who ran the notorious S-21 detention centre in Phnom Penh.
"The court is necessary, but here it’s not sufficient, it’s deficient, mainly because of political interference," Theary Seng, a human rights lawyer, told Al Jazeera. "The court process is controlled by the current government, which includes former Khmer Rouge, the prime minister, the president of the Senate and the president of the National Assembly. And the list goes on. It’s resulted in donor fatigue, senior resignations and has created this limping court that, to me, is a sham." A former civil party to the court - her parents were killed by the Khmer Rouge - Seng withdrew from the process two years ago.
The regime’s four most senior surviving leaders - Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith - were initially charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949 and genocide against the Muslim Cham and ethnic Vietnamese living in Cambodia. But Ieng Thirith, the regime’s former social affairs minister was declared unfit to stand trial because of Alzheimer’s and her husband, Ieng Sary, died earlier this year. Nuon Chea is now 87 and suffers from a bad back. Although, detention, with its medical care, special food and well-kept cell has helped improve his health, his age is clearly a concern. Khieu Samphan is 82.
The gravest allegations of religious persecutions, genocide and forced marriage have been deferred to future trials
The court decided to speed up the trial by splitting it into a number of mini-trials - the first focussing on the forced evacuation of Phnom Penh and the massacre of Khmer Republic soldiers - but the move has done little to ease concern that the defendants may never face the court on the most serious charges against them.
"The gravest allegations of religious persecutions, genocide and forced marriage have been deferred to future trials," noted the Cambodian Centre for Human Rights in a briefing paper earlier this month. "Yet, with uncertain foreign funding, government obstruction and concerns over the health of the accused, the likeliness of such trials occurring is slim, at best." The emphasis is CCHR’s.
At the end of Case 002/01, the prosecution stressed that it was keen for the court to make faster progress.
With a verdict in the first mini-trial expected only in June next year, the question now being asked is whether prosecutors, legally, can proceed to Case 002/02 and Case 002/03 before a decision in Case 002/01 has been handed down. Then there’s the question of appeals, and future hearings for Cases 003 and 004.
"There are important charges that still need to be heard," said international co-prosecutor William Smith. "Case 001/02 is just the beginning, The regime got worse and worse. The next trial should get off the ground far more quickly. It’s extremely important these charges are heard. Only one third of the story has been told."
More efficient prosecution would also help the court press its case for funding with international donors who will have spent an estimated $209 million on the court by the end of the year and are concerned at the glacial pace of it work. A budget meeting is expected to take place in New York in two weeks time. Officials are considering too whether a second panel of judges needs to be convened to hear the next mini-trial.
As Case 002/001 wound down both defendants finally addressed the court, but anyone expecting a contrite apology or admission of guilt was to be disappointed.
Nuon Chea, the regime’s ideologist, insisted he did what he did out of love for his country and his people, blaming the "trickery" of the Vietnamese, more junior party members who failed to carry out the wishes of the party leadership and "agents" of the United States and Vietnam.
"Depriving people of food and killing Cambodian people was contradictory to the vision and policy of the Communist Party of Kampuchea," he told the courtroom, going on to explain how the party had devised a four-year plan under which all Cambodians would, by 1979, be able to have three course meals, including dessert, every day.
|Former Khmer Rouge leaders Khieu Samphan, left, and Nuon Chea sit together during funeral services for Khieu Ponnary, the first wife of Khmer Rouge leader Pol Pot [AP]
Criticising the court for failing to give him a fair trial, Nuon Chea acknowledged some "moral responsibility" for the horror of the 1970s, but called on the judges to acquit him.
There was no such admission from Khieu Samphan. Dressed in a white jacket, he read slowly from a sheaf of papers held close to his face, telling the court told the court he had no power within the regime.
"I never wanted or decided to evacuate the people and neither did I plan or decide the massacre of innocent people," he said. "Whatever I did was to protect the weak, to uphold the respect for their fundamental rights and to build a Cambodia that was strong, independent and peaceful."
Those sitting in the public gallery were unimpressed.
"Nuon Chea’s a liar," said Bin Sivla, who was 18 at the time the regime took control of Cambodia and had travelled from central Pursat province to hear the two men speak. "He was a Khmer Rouge leader. How he could not have known what was happening."
As a hybrid court based in the country where the alleged crimes occurred, the Tribunal is unique among international criminal courts. The idea was to allow the survivors more of a stake in the proceedings, but the relationship between the international and national arms of the court has been fractious from the start. Indeed, differences between the UN and the Cambodian government meant the tribunal nearly didn’t happen at all.
Japan remains the court’s biggest donor, but the Cambodian government has often withheld funding prompting strikes by local staff that have added to the delay. Three international judges have also quit, blaming political interference. Although the names of the five suspects in Cases 003 and 004 haven’t been identified publicly, the Cambodian government has indicated on many occasions its reluctance to allow the cases to proceed.
'They tortured my family'
Hun Many, son of Prime Minister Hun Sen and newly elected to the National Assembly for the ruling party, sidestepped questions about political interference insisting the court was achieving its objectives.
"Regardless of the allegations and discussion through the media that I have seen," he said outside the courtroom, after listening to Nuon Chea’s statement. "Until now, I firmly believe that the ECCC has been a success."
Some victims say the court has achieved enough already. Under the Khmer Rouge, Chum Mey was eventually transferred back to Phnom Penh to repair sewing machines. Such was the paranoia of the regime, he was accused of spying for the CIA and KGB and tortured in S-21. One of only a handful of people to survive a detention centre in which 14,000 people died, he thinks the money would be better spent building schools, health clinics and other essential services.
Still, experts say the court provides a platform for national reconciliation and is important as a way of rebuilding trust in a country shattered by conflict.
"It’s not about the number of accused, it’s about the process itself, helping Cambodia to heal," insists Peoudara Vanthan, deputy director of the Documentation Center of Cambodia, which is the largest provider of evidence to the Tribunal. "In my view, to keep having the trial is very important for the victims. After 38 years of keeping the sorrow and suffering, it (provides) a sense of justice for them."
Nou, still struggling to cope with the enormity of what happened to her family, agrees.
"I feel very upset with the Khmer Rouge," she said. "They tortured my family. They killed people. The court has confirmed to me the truth of what I know."