Time running out for Khmer Rouge tribunals

After death of ‘Brother No.3’, calls are made to speed up trials of remaining leaders behind Cambodia’s killing fields.

Khmer Rouge leaders go on trial
Bou Meng, a rare survivor of the Tuol Sleng prison, wants trials finished before Khmer Rouge leaders all die [Reuters]

Phnom Penh, Cambodia – More than 30 years after the Khmer Rouge’s murderous rule came to an end, the United Nations-backed tribunal in Cambodia faces a race against time to bring the regime’s aging leaders to justice.

Underscoring the urgency, a founding member of the Maoist-inspired group, Ieng Sary – one of four defendants accused in a joint trial of the former leaders – died in a hospital from heart failure last month at age 87.

The landmark trial’s aim is to hold accountable the Khmer Rouge leadership for an estimated 1.7 million deaths – about 25 percent of Cambodia’s population – between 1975 and 1979. Mass executions, slave-labour-like conditions, and widespread starvation were all hallmarks of the Khmer Rouge’s bid to create a communist agrarian utopia.

Observers say with time running out, the legacy of the first-ever war crimes and genocide tribunal held in Asia could be undermined.

Only two defendants remain in the dock, both frail old men: 86-year-old “Brother Number 2”, Nuon Chea, and Khieu Samphan, the 81-year-old former head of state. Both were members of leader Pol Pot’s inner circle responsible for Cambodia’s “Killing Fields”.

“The tribunal has achieved so much for the victims. They know their voice is being heard. It is all about recognition of what they suffered.”

– Youk Chhang, Khmer Rouge victim 

Hundreds of mass graves littered the Southeast Asian nation after the Khmer Rouge were driven from power by Vietnamese forces in 1979.

Both Nuon Chea and Khieu Samphan deny charges of war crimes, genocide and crimes against humanity.

Nuon Chea’s defence team has argued he should be released after suffering high blood pressure, acute bronchitis and heart disease which, it said, make him too weak to stand trial.

Ieng Sary’s wife, meanwhile – the former Minister of Social Affairs Ieng Thirith – was declared mentally unfit to stand trial after being diagnosed with dementia and released in September.

The clock is now ticking on whether a verdict can be reached in the long-running trials.

Drawn out process

The tribunal started in 2006, nearly three decades after the fall of the Khmer Rouge.

It combines Cambodian and international lawyers and judges, operating under the auspices of the Cambodian legal system, with assistance from the United Nations. It is known as the Extraordinary Chambers in the Courts of Cambodia (ECCC).

The tribunal has been plagued by controversy from its inception, with some defence lawyers calling it a sham, while others have derided its credibility, with claims of corruption and political interference.

Erratic funding from donor governments has also hindered the trials. About 270 Cambodian employees at the UN-backed court, who hadn’t received paycheques for months, went on strike in March. Emergency funds were raised to end the two-week walkout, but it remains unclear where a further $7m, reportedly needed to cover 2013’s costs, will come from.

Duch was chief of the notorious Tuol Sleng prison – codenamed “S-21″ – where some 14,000 Cambodians were tortured and executed in the capital Phnom Penh.Despite an estimated $170m spent during the tribunal’s six years’ work, only one Khmer Rouge defendant, Kaing Guek Eav – better known as “Comrade Duch” – has been convicted.

The public gallery of the ECCC [Tom Fawthrop/Al Jazeera]

“It is a sad indictment of the Khmer Rouge tribunal that after more than six years, only one person has been convicted and only two others, Nuon Chea and Khieu Samphan, remain on trial for Khmer Rouge-era crimes,” Brad Adams, Asia director of Human Rights Watch, said in a report.

“Cambodians now face the prospect that only two people will be held legally accountable for the destruction of their country.”

‘Great Powers’ opposed

However, Cambodian and UN staff at the tribunal point out it is hardly fair to blame the court, since many top-ranking Khmer Rouge leaders died long before it was established, including “Brother Number 1”, Pol Pot himself, in 1998.

Western diplomats had long predicted that a tribunal would never happen.

During the Cold War of the 1980, the US government supported the Khmer Rouge regime, retaining Cambodia’s seat at the United Nations, and actively obstructed any moves to bring genocide charges against its leaders.

“The US was at the forefront of Western bloc efforts to ensure that the Khmer Rouge, a regime that had committed genocide, would retain Cambodia’s seat at the UN,” Alex Hinton, director of the Center for the Study of Genocide, Conflict Resolution and Human Rights at Rutgers University, told Al Jazeera. 

Yale University history professor Ben Kiernan wrote wrote: “China, the United States, and the Association of Southeast Asian Nations [ASEAN], all supported Pol Pot’s Khmer Rouge in various ways. The Great Powers opposed attempts to bring the Khmer Rouge to justice.”

It took 18 years for the UN to finally acknowledge that horrific crimes that had taken place under Pol Pot’s rule. The UN General Assembly adopted a resolution in 1997 to “examine the request of Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law”. Six years later, the UN finally agreed to assist Cambodia in setting up a tribunal.

But the UN has since defended the trials. Lars Olsen is the UN legal affairs spokesman for the tribunal.

“Justice for the victims is fading little by little. The court must speed up the trial. I deserve some kind of justice while I’m still alive.

– Bou Meng, Tuol Sleng prison survivor

“When I arrived in 2009, there was an overwhelming sense of pessimism,” he told Al Jazeera.

“It was predicted the Duch trial would never finish, and case 002 [the current trial] would never start, claiming the government did not want it. All these doomsday predictions started a long time ago, and these doomsday predictions have all been proved wrong,” he said.

Olsen admitted the court originally attempted to do too much. “The tribunal started with unrealistic expectation of investigating too much and too broadly”, which took up too much time, he said.

Frustrated victims

New York-based Human Rights Watch accused Cambodian Prime Minister Hun Sen last month of having “done everything in his power to stymie the tribunal’s work”.

Hun Sen, however, has repeatedly denied any efforts to interfere. “The power is in the hands of the court,” he said in a speech on a national radio in March. “Whether the process is slow or fast is up to the court, not me.”

Many Cambodians are also frustrated after waiting 30 years for a tribunal to come to fruition, only to see the wheels of justice barely moving.

“Justice for the victims is fading little by little,” said Bou Meng, one of a handful of people to survive incarceration at the Tuol Sleng prison. “The court must speed up the trial. I deserve some kind of justice while I’m still alive.”

Others point out that justice systems around the world are equally slow and expensive.

The International Criminal Court in The Hague, for example, has convicted only one person – Congolese leader Thomas Lubanga – in its decade of existence – at a cost of about $900m, compared with the ECCC’s $170m and Duch’s sole conviction.

Youk Chhang is a former Khmer Rouge victim and director of The Documentation Center of Cambodia (DC-Cam). His organisation has provided the ECCC with a treasure trove of evidential documents. For him it’s the process, not necessarily the result that is most important.

Khmer Rouge ‘Brother Number 2’ Nuon Chea [Reuters]

“The tribunal has achieved so much for the victims. They know their voice is being heard,” Chhang told Al Jazeera. “It is all about recognition of what they suffered. The evidence in the tribunal is a vindication of what they [victims] told us 30-years ago.”

Watching justice unfold

Many victims have attended the court’s public gallery, which has seating capacity for 500. Most never imagined they would ever get the chance to see their tormentors, top leaders of the regime, finally brought to court.

In Phnom Penh, it has been a full house when court is in session, with more than 76,000 people attending since the second trial commenced on November 21, 2011. UN spokesman Olsen estimated 90 percent were Cambodians, and the rest foreigners.

The figure dwarfs those who have watched other tribunals at The Hague, in Sierra Leone, and in Rwanda.

This tribunal is not just about the past, Chhang said. “It is a foundation to build a better Cambodia and to prevent genocide in the future.”

Still, critics complain that justice has been tarnished by allegations that the Cambodian prosecutor and investigating judge have blocked further action against more Khmer Rouge suspects. That said, even with the chronic lack of funding, investigations continue for possible future trials.

The court has also created an important precedent in international law. It is the first-ever tribunal to allow the direct participation of victims as Civil Parties – providing them the right of cross-examination alongside the prosecution.

Despite criticism of what has been described by former prosecuting attorney Kip Hale as “the most complex international criminal trial since Nuremburg”, some say the tribunal’s efforts so far are better than no effort all.

Whatever happens to the two octogenarians still on trial, Rutgers professor Hinton said the court has gathered “an enormous amount of evidentiary material that will inform research for years to come”.

But, Hinton added, judgement for the last two defendants needs to come down. 

“If this doesn’t happen, the international community will have to shoulder much of the blame, particularly for the 30-year delay for justice.”

Source: Al Jazeera