A Khmer Rouge prison survivor receives a copy of the Duch-verdict, August 2010. He is one of only a handful survivors from the S21 prison where at least 12,273 people were tortured and executed. Photo: Extraordinary Chambers in the Courts of Cambodia
The Khmer Rouge ruled Cambodia for less than four years, but by the time they were defeated in 1979 by a Vietnamese invasion, up to two million Cambodians had been shot, tortured, bludgeoned or starved to death. Despite the extent of these atrocities, justice for Cambodia has been slow. Years of negotiations between the UN and the Cambodian Government preceded the establishment of a court that would try the “senior leaders and those most responsible”. The result was a tribunal composed of Cambodian and international staff, based in Phnom Penh and named the Extraordinary Chambers in the Courts of Cambodia (ECCC). In 2009 the Court began its first trial.
Housed in a former military headquarters, ten kilometres outside Phnom Penh, the Court has a sleepy atmosphere. It is difficult to imagine that some of history’s most prolific mass murderers are on trial in such a place, or that it is an institution in crisis—but it is. The court is millions of dollars over budget, years overdue in its promised delivery of justice and struggling to maintain its own credibility.
There have been successes. In 2010, Comrade Duch, the chief of the regime’s most notorious torture centre Tuol Sleng, was tried. A born-again Christian, Duch confessed and in the witness stand implored former colleagues to unburden themselves. But at the last minute, casting all his earlier contrition into doubt, he pleaded not guilty and begged the court for immediate release. The judges sentenced him to thirty-five years. But Duch was, in essence, a mid-level bureaucrat—the big cases were yet to come.
In November 2011 began the trial of the regime’s former leaders: Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith. With Pol Pot having died before he could be arrested, these three men and one woman are the most visible living symbols of the regime. They are charged with genocide, crimes against humanity and breaches of the Geneva Convention.
The trial began inauspiciously last year with Ieng Thirith, the former Minister for Social Affairs, being ruled out of proceedings due to severe dementia. But Nuon Chea, who was known as Brother Number Two, has assumed the stand with astonishing vigour, pointing the finger of blame at the Khmer Rouge’s loathed enemies, the Vietnamese and Americans, who he claimed were responsible for the atrocities. Ieng Sary, the former Foreign Minister and Khieu Samphan, the ex-head of state have been less dramatic but no less cussed in their defiance.
With such powerful performances and seating for several hundred, proceedings in court can be absorbing and theatrical. Outside the perimeter of the court’s compound, perspectives are different. The Killing Fields at Choeung Ek and the detention centre of Tuol Sleng may have become macabre must-sees for any foreign visitor to Phnom Penh, but to many of the city’s residents, they are historically remote relics. Of more urgent interest are the Lexuses and Range Rovers jamming up the boulevards, the many booming construction sites and the proliferation of wifi-fitted, latte-serving cafes. On the streets, Korean fashion dominates—conventional side partings and pinned hair have been replaced by improbable, asymmetric designs for the boys and peroxide blonde for the girls. Cambodians are looking forward.
But underneath the shiny new Cambodia is a country weighed down by its past. Inside the vast, Chinese-built offices of the Cambodian Council of Ministers, Pai Siphan, a government spokesman, said of the Khmer Rouge Tribunal: “We understand more than the Court. I saw cannibals, people eating each other. Only the Cambodian lawyers and judges get nightmares—the foreigners don’t! The foreigners want to prove they are the best people on earth to provide justice but our life needs to go on!” It is a statement typical of the Cambodian Government’s unwillingness to cede control of the trials.
From the outset, the Cambodian Government wanted the Court to try as few defendants as possible. Senior figures in the Army and Navy risk coming under uncomfortable levels of scrutiny and the government has acted to head off this possibility. Cambodia is steeped in corruption—the elite bribe, intimidate and steal with impunity and the most corrupt of all Cambodian institutions is the judiciary. “A fish market,” is how Ou Virak, the outspoken President of the Cambodian Center for Human Rights, describes it. “The courts simply make a decision as to who is the highest bidder… it’s so funny that they even attempt to hide these corruptions… the courts pretend but every Cambodian knows.” And it’s not just money that talks, almost every senior judge is a member of the Cambodian People’s Party, the party that has held power since 1979. The division between the judiciary and the legislature is blurred to the point of invisibility; the Government almost always get their way.
And of course lurking in the background is China. Originally, the primary benefactor of the Khmer Rouge it is now a friend and close business partner of the present regime. China also does not want to dig up Cambodia’s past. Last year Hun Sen, the prime minister of Cambodia and a former Khmer Rouge cadre himself, was reported to have told Ban Ki Moon, the secretary general of the UN, that future cases “would not be allowed.” Khieu Kanharith, Cambodia’s Information Minister, went further, saying that any international staff interested in pursuing further trials should “just pack their bags and return home.” The UN knew all of this when it established the tribunal and part of its mandate is to strengthen the judiciary. But there is concern that instead of the Cambodian judiciary adopting the good practices of UN lawyers, the opposite has happened—the Court has adopted the bad habits of its hosts.
The incident that has brought things to a head was the peculiar case of Judge Blunk. In 2010 Judge Blunk and You Bunleng, his Cambodian counterpart, were tasked to investigate two future cases against, among others, two former military commanders.
At the beginning of 2011 rumours began to circulate that the cases were not being actively pursued. And in April the judges closed their investigations without having visited the crime sites or even interviewed the suspects. Journalists’ questions were rudely rebuffed, the Prosecutor’s appeals met with a menacing defensiveness and Blunk’s own legal team resigned en masse at the insufficiency of his investigation. NGOs and the press howled for the UN to intervene but to no avail. Then, seemingly out of the blue, Blunk resigned, claiming the government had made his position impossible. Yet still the UN did not hold an enquiry, instead sending over UN Legal Counsel, Patricia O’Brien, to deliver a ticking-off to the Government about judicial independence.
The reasons for Blunk’s refusal to investigate properly were, and are, unclear although conspiracy theories are not in short supply. As for the UN, it seems paralysed by a fear of provoking the Cambodian Government and thus derailing proceedings entirely. If they hoped that Blunk’s resignation would bring resolution, it has not. Laurent Kasper-Ansermet, Blunk’s successor, boldly declared he would reopen investigations but he resigned last month citing “irregularities, dysfunctions and violations of proper procedure that endanger and impede due process of law”. Once again the UN response has been muted.
The reaction of Cambodians themselves is difficult to gauge—the squabbles with Thailand over the Preah Vihear Temple provoke many more headlines and sell many more papers. Allegations of political interference have been met with indifference. A court that wasn’t influenced by the Government would have provoked much more surprise. The older generations, who survived the regime, express satisfaction that some of the leaders will face justice and the Court’s gallery is far fuller, the media coverage more complete and victim participation more effective than if it had taken place at The Hague. But Cambodia is a young country: the pleasures and complexities of modern life are much more alluring than the lessons of history.
Perhaps it is naïve to expect a court to dispense justice and retain its integrity in a country where the traditions of an independent judiciary are so weak. But if future investigations are to be constrained by political considerations, then the trial’s main legacy may well be the tired lesson of the primacy of power over justice.
The Khmer Rouge ruled Cambodia for less than four years, but by the time they were defeated in 1979 by a Vietnamese invasion, up to two million Cambodians had been shot, tortured, bludgeoned or starved to death. Despite the extent of these atrocities, justice for Cambodia has been slow. Years of negotiations between the UN and the Cambodian Government preceded the establishment of a court that would try the “senior leaders and those most responsible”. The result was a tribunal composed of Cambodian and international staff, based in Phnom Penh and named the Extraordinary Chambers in the Courts of Cambodia (ECCC). In 2009 the Court began its first trial.
Housed in a former military headquarters, ten kilometres outside Phnom Penh, the Court has a sleepy atmosphere. It is difficult to imagine that some of history’s most prolific mass murderers are on trial in such a place, or that it is an institution in crisis—but it is. The court is millions of dollars over budget, years overdue in its promised delivery of justice and struggling to maintain its own credibility.
There have been successes. In 2010, Comrade Duch, the chief of the regime’s most notorious torture centre Tuol Sleng, was tried. A born-again Christian, Duch confessed and in the witness stand implored former colleagues to unburden themselves. But at the last minute, casting all his earlier contrition into doubt, he pleaded not guilty and begged the court for immediate release. The judges sentenced him to thirty-five years. But Duch was, in essence, a mid-level bureaucrat—the big cases were yet to come.
In November 2011 began the trial of the regime’s former leaders: Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith. With Pol Pot having died before he could be arrested, these three men and one woman are the most visible living symbols of the regime. They are charged with genocide, crimes against humanity and breaches of the Geneva Convention.
The trial began inauspiciously last year with Ieng Thirith, the former Minister for Social Affairs, being ruled out of proceedings due to severe dementia. But Nuon Chea, who was known as Brother Number Two, has assumed the stand with astonishing vigour, pointing the finger of blame at the Khmer Rouge’s loathed enemies, the Vietnamese and Americans, who he claimed were responsible for the atrocities. Ieng Sary, the former Foreign Minister and Khieu Samphan, the ex-head of state have been less dramatic but no less cussed in their defiance.
With such powerful performances and seating for several hundred, proceedings in court can be absorbing and theatrical. Outside the perimeter of the court’s compound, perspectives are different. The Killing Fields at Choeung Ek and the detention centre of Tuol Sleng may have become macabre must-sees for any foreign visitor to Phnom Penh, but to many of the city’s residents, they are historically remote relics. Of more urgent interest are the Lexuses and Range Rovers jamming up the boulevards, the many booming construction sites and the proliferation of wifi-fitted, latte-serving cafes. On the streets, Korean fashion dominates—conventional side partings and pinned hair have been replaced by improbable, asymmetric designs for the boys and peroxide blonde for the girls. Cambodians are looking forward.
But underneath the shiny new Cambodia is a country weighed down by its past. Inside the vast, Chinese-built offices of the Cambodian Council of Ministers, Pai Siphan, a government spokesman, said of the Khmer Rouge Tribunal: “We understand more than the Court. I saw cannibals, people eating each other. Only the Cambodian lawyers and judges get nightmares—the foreigners don’t! The foreigners want to prove they are the best people on earth to provide justice but our life needs to go on!” It is a statement typical of the Cambodian Government’s unwillingness to cede control of the trials.
From the outset, the Cambodian Government wanted the Court to try as few defendants as possible. Senior figures in the Army and Navy risk coming under uncomfortable levels of scrutiny and the government has acted to head off this possibility. Cambodia is steeped in corruption—the elite bribe, intimidate and steal with impunity and the most corrupt of all Cambodian institutions is the judiciary. “A fish market,” is how Ou Virak, the outspoken President of the Cambodian Center for Human Rights, describes it. “The courts simply make a decision as to who is the highest bidder… it’s so funny that they even attempt to hide these corruptions… the courts pretend but every Cambodian knows.” And it’s not just money that talks, almost every senior judge is a member of the Cambodian People’s Party, the party that has held power since 1979. The division between the judiciary and the legislature is blurred to the point of invisibility; the Government almost always get their way.
And of course lurking in the background is China. Originally, the primary benefactor of the Khmer Rouge it is now a friend and close business partner of the present regime. China also does not want to dig up Cambodia’s past. Last year Hun Sen, the prime minister of Cambodia and a former Khmer Rouge cadre himself, was reported to have told Ban Ki Moon, the secretary general of the UN, that future cases “would not be allowed.” Khieu Kanharith, Cambodia’s Information Minister, went further, saying that any international staff interested in pursuing further trials should “just pack their bags and return home.” The UN knew all of this when it established the tribunal and part of its mandate is to strengthen the judiciary. But there is concern that instead of the Cambodian judiciary adopting the good practices of UN lawyers, the opposite has happened—the Court has adopted the bad habits of its hosts.
The incident that has brought things to a head was the peculiar case of Judge Blunk. In 2010 Judge Blunk and You Bunleng, his Cambodian counterpart, were tasked to investigate two future cases against, among others, two former military commanders.
At the beginning of 2011 rumours began to circulate that the cases were not being actively pursued. And in April the judges closed their investigations without having visited the crime sites or even interviewed the suspects. Journalists’ questions were rudely rebuffed, the Prosecutor’s appeals met with a menacing defensiveness and Blunk’s own legal team resigned en masse at the insufficiency of his investigation. NGOs and the press howled for the UN to intervene but to no avail. Then, seemingly out of the blue, Blunk resigned, claiming the government had made his position impossible. Yet still the UN did not hold an enquiry, instead sending over UN Legal Counsel, Patricia O’Brien, to deliver a ticking-off to the Government about judicial independence.
The reasons for Blunk’s refusal to investigate properly were, and are, unclear although conspiracy theories are not in short supply. As for the UN, it seems paralysed by a fear of provoking the Cambodian Government and thus derailing proceedings entirely. If they hoped that Blunk’s resignation would bring resolution, it has not. Laurent Kasper-Ansermet, Blunk’s successor, boldly declared he would reopen investigations but he resigned last month citing “irregularities, dysfunctions and violations of proper procedure that endanger and impede due process of law”. Once again the UN response has been muted.
The reaction of Cambodians themselves is difficult to gauge—the squabbles with Thailand over the Preah Vihear Temple provoke many more headlines and sell many more papers. Allegations of political interference have been met with indifference. A court that wasn’t influenced by the Government would have provoked much more surprise. The older generations, who survived the regime, express satisfaction that some of the leaders will face justice and the Court’s gallery is far fuller, the media coverage more complete and victim participation more effective than if it had taken place at The Hague. But Cambodia is a young country: the pleasures and complexities of modern life are much more alluring than the lessons of history.
Perhaps it is naïve to expect a court to dispense justice and retain its integrity in a country where the traditions of an independent judiciary are so weak. But if future investigations are to be constrained by political considerations, then the trial’s main legacy may well be the tired lesson of the primacy of power over justice.
