It was the most unlikely of disguises. A former torturer, mass murderer and Khmer Rouge heavy posing as a caring humanitarian worker at a Thai refugee camp. Wearing a worn UNICEF t-shirt, the former commander of the Khmer Rouge’s notorious Tuol Sleng or S-21 prison looked shocked as his true identity was finally revealed to authorities last year.
For over 30 years, since the dark days of the Khmer Rouge regime from 1975 to 1979, Comrade Duch had escaped his past. Duch, or Kang Kek Leu as he his properly known, was the man responsible for the medieval torture and death of 17,000 political prisoners at Tuol Sleng prison in the heart of Phnom Penh. Like many of the former regime’s leaders, Duch had escaped justice until last year when he was recognised at a refugee camp on the Thai-Cambodian border. His arrest re-ignited the debate (and sense of urgency) concerning the formation of tribunals to bring what remains of the Khmer Rouge to justice. The debate led to Kang Kek Leu becoming the first man to be charged for crimes against humanity, torture, homicide, as well as arbitrary arrest and detention by the newly formed Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC represents an attempt by the Cambodian Government and the international community to procure truth and justice from the senior leaders of the brutal Khmer Rouge regime.1 There is hope that by adopting a judicial forum, in contrast to other informal truth and reconciliation commissions, the ECCC will restore the notion of a cohesive political community in Cambodia, affirming governmental accountability and the rule of law.2 However, with the tribunals set to begin in early 2008, debate is flaring as to the effectiveness and relevance of a tribunal to prosecute crimes committed more than 35 years ago.
Drawing on the Maoist agrarian model, Khmer Rouge leaders Pol Pot, Ieng Sary and Ta Mok led the country through four years of reformation. The social and economic foundations of society - religion, the family unit, marriage, formal education and currency - were abolished. Vulnerable minorities groups including Buddhist monks, Thai and Vietnamese Cambodians, as well as educated elites, were persecuted. In all, ‘Democratic Kampuchea’ took the lives of
1.7 million people in the infamous ‘Killing Fields’; mass graves were dug in the countryside to dispose of the dead. This period ended in 1979 with the occupation of Vietnamese forces until Cambodian independence in 1982.3
At the heart of debates concerning the tribunal’s credibility is the simple question: why has it taken this long? The answer is equally simple: politics. For decades after their demise, the Khmer Rouge leadership were propped up by overt support from the Chinese Government, and more covert support from the Thai Government, which provided sanctuary for senior Khmer Rouge officials until the late 1990s. More damning was the unofficial support the Khmer Rouge received from the United States. Indeed the Khmer Rouge maintained their seat in the UN’s General Assembly with the backing of these supporters, until 1989.
Combative Cold War politics, coupled with Vietnam War shame, provided the US with an excuse to delegitimise the Vietnamese leadership of Cambodia, thereby tacitly supporting the Khmer Rouge’s attempts to reclaim power. Further, close US-Thai relations based on shared intelligence and joint-military operations slowed the process of justice and reconciliation necessary for Cambodia to recover from the trauma of civil war and genocide.
The era of Khmer Rouge legitimation ended in 1990. The UN Human Rights Sub-Commission officially recognised and condemned the crime of genocide committed against the Cambodian people. Four years later, in 1994, the Cambodian National Assembly passed a law labelling the former leaders ‘outlaws’. In the same year the US Congress passed the Cambodian Genocide Justice Act 22 USC 2656, prohibiting the US Government from cooperating with the Khmer Rouge.4 These belated acts paved the way for the end of impunity. However it is striking to note that it was only after the Khmer Rouge no longer possessed any political or military power that the international community finally took action.
The Nature of the Extraordinary Chambers in the Courts of Cambodia (ECCC)
After 30 years of inaction, the Cambodian National Assembly ratified a cooperation agreement with the UN in October 2004. This agreement established the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea.5 The ECCC will at long last provide a judicial forum to try the former leaders for crimes against humanity, genocide, persecution, homicide and torture.
The court will be structured in three tiers: a Trial Chamber; an Appeals Court; and a Supreme Court. At every step there will be a majority of Cambodian judges, aided by several international judges. This decision reflects a careful compromise between the Cambodian Government, keen to assert its judicial sovereignty over the proceedings, and the UN, keen to preserve the rule of law in a fledgling democracy. Also of importance in the negotiations establishing the ECCC was the question of the tribunal’s location
– set to be held in the Cambodian capital Phnom Penh – in order to preserve a sense of geographic relevancy, as well as autonomy, for Cambodians. This decision will hopefully provide the population with a sense that they ‘own’ the outcome of the tribunal.6
These legal arrangements evolved during the mid-1990s, a time of enthusiasm in the development of international law and justice. The background for this enthusiasm was the formation in 1993 of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Later, the adoption of the Rome Statute of the International Criminal Court in 1998, established the International Criminal Court (ICC).7 The ad-hoc tribunals of Rwanda and the former Yugoslavia represent a legalistic approach to the recovery of justice. On the other hand, the 1990s also saw the creation of several truth and reconciliation commissions in post-conflict situations, whose aim was grounded in cathartic truth telling. The paradigm example is South Africa’s Truth and Reconciliation Commission.8 The ECCC is an effort to consolidate these two approaches to justice and reconciliation.
In its continuing evolution, the ECCC faces innumerable challenges. The first is the daunting process of consolidating existing archival information on the Khmer Rouge regime. This duty has fallen to Yale University’s ‘Cambodian Genocide Program’ (CGP), which lodged a successful tender to research atrocities of the Khmer Rouge on behalf of the Cambodian Government.9 However, due to the persecution of Cambodia’s intellectuals during the 1970s, few local historians remained to develop accurate, first-hand records of the period. Many files were also destroyed either deliberately, or through carelessness by the Khmer Rouge.
The second challenge is the task of consolidating international law into domestic Cambodian legislation. Since the first drafting of the tribunal’s law in 2000, icy diplomatic relations overshadowed this process. Concerns have been raised by international actors such as the non-governmental organisation, Human Rights Watch, as to Cambodia’s capacity to hold fair trials. After years of tense negotiation, the Cambodian Government agreed to a ‘mixed law’ agenda. The nature of the criminal acts committed by the Khmer Rouge incorporate crimes prohibited under international human rights and humanitarian law: crimes against humanity, genocide, war crimes, forced labour, torture and crimes against internationally protected persons. Those aspects of Cambodian law that apply include homicide, torture, rape, physical assault, arbitrary arrest and detention, attacks on religion and abuses of government authority. It has been an arduous task to consolidate relevant elements of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,10 the 1954 Hague Convention for the Protection of Cultural Property during Armed Conflict11 and the 1961 Vienna Convention on Diplomatic Relations12 into domestic legislation.13
A further concern is the issue of the identity of those called to trial. Many of the regime’s former leaders have died, including the leader of the movement, Brother Number One, or Pol Pot. The prosecution made the sensible decision to isolate convictions to the senior leaders of the regime. Currently awaiting trial are Nuon Chea or Brother Number Two, Kheiu Sampan, the former Prime Minister, Ieng Sary, the former Deputy-Prime Minister, and Ta Mok, who held various senior positions in the Central Committee. Still, many are outraged at the prospect of continued impunity for many lower-ranking Khmer Rouge recruits who were perhaps more directly responsible for the atrocious crimes of the Khmer Rouge. The ICTY faced similar concerns as only 13 senior military leaders were prosecuted at the Hague.14 In this case the prosecution argued that restricting liability to senior leaders of the Serbian Government and military was more conducive to building a sense of unity and reconciliation amongst the embattled and war-weary populations of Serbia and Bosnia.
Compounding these debates are calls from one opposition party, the Sam Rainsy Party, to condemn the complicity of Prince Sihanouk, the nation’s former leader, with the Khmer Rouge regime. Sihanouk’s son, Prince Ranariddh, is the current opposition leader, heading Cambodia’s Funcinpec Party. For others, international actors such as US military leaders have their part to answer in the tribunal. Covert US military actions in Cambodia during the Vietnam War, including bombing campaigns on the Cambodian-Vietnamese border from 1969-1973, cost the lives of hundreds of thousands of Cambodians. These atrocities, compounded by the US-backed coup of Lon Nol against then Prime Minister Prince Sihanouk in 1970, galvanised moderate support for the Khmer Rouge. To avoid these legitimate debates, the tribunal has been given temporal jurisdiction, limiting the period of investigation from 17 April 1975, to 1 January 1979.
An assessment of the tribunal
There is no doubt that the people of Cambodia deserve and expect justice. Forums such as the ECCC serve to reflect upon, deter and condemn actions of gross human rights violations. Judicial proceedings can never, nor do they strive to, restore the lives of lost ones or erase memories. While some may worry that the tribunal will open old wounds while failing to heal them, their ultimate purpose is to expose the truth and end cultures of impunity. In the same way, commentary on the South African Truth and Reconciliation Commission found that the process of truth telling through evidentiary discovery contributed to a sense of national belonging and cohesion.15 Informal reconciliation of this kind is often contrasted with retributive legal justice. The judicial framework of the ECCC provides a more formal forum for this process, contributing to the rule of law in a country still struggling with notions of democratic governance. In this sense the formation of the ECCC indicates an appreciation of the multi-dimensional concept of ‘nation-building’, which includes the need to rebuild faith in state authority and governance structures after periods of conflict.16
For now at least, when the prosecution finally takes the stand in downtown Phnom Penh early in 2008, the views of the critics who dismissed the tribunal as a pipedream will have been put to rest. As Comrade Duch replaces his UNICEF t-shirt for prison robes, the next generation of Cambodians will hopefully be able to move on from their traumatic collective past to deal with the future economic and social development of their country.
Brigit Morris is a candidate for the Bachelor of Laws/Bachelor of Economics and Social Sciences at the University of Sydney. She recently interned at the Geneva-based human rights NGO, International Service for Human Rights.
2 Andrew Schaap, ‘Assuming Responsibility in the Hope of reconciliation’ (2004) 3(1) Hope of Reconciliation 23.
3 Susan Cook, ‘Prosecuting Genocide in Cambodia: The Winding Path towards
Justice’, Crimes of War Project, Magazine: The Tribunals (2001) 3 crimesofwar.org/tribun-mag/cambodia_print.html> at 16 November 2007.
4 Fawthrop and Jarvis, above n 1, 110.
5 Ibid 12.
6 Donna Arzt, ‘Views on the Ground: The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone’ (2006) 603 The Annals of the American Academy of Political and Social Science 63.
7 Robert Kwame Ameh, ‘Uncovering Truth: Ghana’s National Reconciliation Commission Excavation of Past Human Rights Abuses’ (2006) 9(4) Contemporary Justice Review 346.
8 Another example is the Special Court for Sierra Leone, established in 2002. See Arzt, above n 6, 65.
9 Yale University, The Cambodian Genocide Program at 16 November 2007.
10 Opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).
11 Opened for signature 14 May 1954, 249 UNTS 240 (entered into force 7 August 1956).
12 Opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964).
13 Fawthrop and Jarvis, above n 1, 4.
14 Arzt, above n 6, 67.
15 Richard Ashby Wilson, ‘Anthropological Studies of National Reconciliation Processes’ (2003) 3 Anthropological Theory 371.
16 Ibid 372.