The Khmer Rouge Trials: Legacy or Lesson

This past month saw the culmination of legal proceedings for the two surviving leaders of the Khmer Rouge.  Nuon Chea, Pol Pot’s second-in-command and Khieu Sampahn, the former head of state, made their closing statements before the court.  On October 31, prosecutors presented their closing arguments and demanded life in prison for both defendants.  The tribunal, set up to prosecute those most responsible for one of the worst mass killings of the twentieth century, is one of a couple of international law efforts to end impunity.  As such, it has become a landmark for the future of international law and the international community’s efforts to make those responsible for crimes against humanity, war crimes and genocide, accountable.

Image courtesy of the Cambodia Herald, © 2013, some rights reserved

Image courtesy of the Cambodia Herald, © 2013, some rights reserved

During Pol Pot’s rule between 1975 and 1979, the Khmer Rouge killed nearly a third of Cambodia’s population – an estimated 1.7 million people. The Khmer Rouge sought to transform Cambodia into an agrarian collective by isolating the country from the rest of the world, abolishing money and private property, banning religion, and eliminating all educated persons. Hundreds of thousands died due to medical neglect, disease, starvation and forced labor. Many others were imprisoned, tortured and executed at special centers like the infamous S-21 jail in Phnom Penh.

The trials resulted from a request from the Cambodian government for United Nation’s assistance in establishing an international tribunal to prosecute the senior leaders of the Khmer Rouge. After the 1997 request, a United Nations group of experts recommended an international tribunal, warning of political interference, corruption, and a lack of competence in the Cambodian court system. However, Prime Minister Hun Sen rejected the proposal, wanting to maintain control of the process. This lead to years of protracted negotiations and to Kofi Annan’s withdrawal from the court.

Negotiations finally paid off in 2001 with the creation of the UN-backed Extraordinary Chambers in the Courts of Cambodia. The ECCC is a hybrid court, with both national and international judges, with the mandate to “bring to trial 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” [1].

Since its inception, the court has opened four cases of which only two actually progressed to trial after over 15 years.  The ECCC handed down its first and only conviction so far in 2010 against Kaing Guek Eav, known as ‘Duch’.  Sentenced to 35 years, Duch admitted to overseeing the deaths of up to 16,000 people as the commander of the S-21 prison.  This leniency of the punishment incited outrage after it was decided he would only serve 19 years after time deducted for years already served.  He was eventually sentenced to life in prison.

The court itself has proved problematic as a model for international tribunals largely as a result of two factors: its structure and management, and corruption due to political interference. The structure of the ECCC is challenging since the co-investigating judges are responsible for collecting evidence, not the defense and prosecution; as such, there is opportunity for bias even before the trial begins. This means that these two figures must be completely unbiased and impartial, or the foundation of the entire trial becomes compromised. A set up that became a real problem during the trial as Human Rights Watch Reported in 2011 that the two investigating judges had egregiously violated their legal and judicial duties and should resign. They were accused of failing to conduct genuine, impartial and effective investigations into ECCC cases 003 and 004. As far as the management of the tribunal, the lack of secure funding and the absence of proper leadership was a real obstacle to proceedings.

The ECCC also faced a mired of challenges as a result of the political complexities attached to these trials.  While it is understandable that the use of Cambodian judges was non-negotiable for the Cambodian government, it led to questions as to the integrity and neutrality of the court. In Cambodia’s case, interference from Prime Minister Hun Sen and other government officials many former Khmer Rouge officials is held largely responsible for the dismissal Case 003 and 004, a decision that raised many questions about the honesty and impartiality of the co-investigating judges and as such devalued the legitimacy of proceedings.

With the recent conclusion of case 002 and the two life sentences expected to be handed down sometime in 2014 the victory of setting up a tribunal for the crimes committed in Cambodia has been bittersweet for the international law community.  On the one hand, an international court seems to be the only way the victims of this genocide can get justice.  On the other, the court has struggled due to a variety of problems.

With future trials on the remaining two cases increasingly doubtful, Cambodians and international observers alike question the tarnished legacy of this court.  Legal experts vow never to repeat a similar structure, onlookers wonder about the courts overall merits and critics question whether the estimated $200 million US dollars cost of the court’s investigations could have been better spent elsewhere.

The atrocities that occurred in Cambodia during this period are inconceivable and thus evaluating whether efforts to criminally prosecute those responsible have been sufficient to bring some justice to the many victims seems likewise implausible.  However, this effort for international justice and accountability should not be lessened for its flaws.  For years, the leaders of the Khmer Rouge enjoyed impunity.  Many continue to do so as they now fill position in the government, which allow them to further shelter themselves from any type of prosecution.

Therefore, despite the many challenges faced by the ECCC, holding those responsible accountable remains a noble and necessary effort and most Cambodians seem to support the court.  More that 100,000 Cambodians have attended the court hearings and millions around the world have followed the progress of the trial.  As for the much-criticized cost, Craig Etcheson, a former chief investigator for the prosecution, points out that $100 dollars for every person who died at the hand of the Khmer Rouge is “not too much to ask”[2].

It is easy to criticize the court for its failings; international law operates under extremely challenging conditions and is burdened by massive expectations.  There are two schools of thought when considering the aims and objectives of international criminal tribunals.  There are those who believe that such tribunals have a range of responsibilities, to victims, to the affected society as a whole, and to the international community at large.  In contrast, others who argue, that an international tribunal should never promise more that it can deliver, and the sole purpose should be to try perpetrators and impose condign punishment if the requisite standard of proof has been attained to convict those accused of criminal offences[3]. The practice of international law is always going to be an endeavor tested and forced to face bureaucracy, delays and complications.  Even though the ECCC’s legacy is imperfect and many argue it is a lesson in the failings of international law, it should instead be viewed as a step in the right direction and a model for the improvement of international tribunals. No court addressing mass crimes can deliver a perfect solution, but partial justice and the attempt at holding those most responsible accountable for their crimes most definitely has symbolic significance and is a necessary practice.