Justice Evades Cambodia’s Khmer Rouge Trials

A commentary by Sok Ry Sum
cambodia-survivors-aug2014.gif Survivors of the Khmer Rouge era embrace each other after hearing the verdict in the trial of two former Khmer Rouge leaders at the ECCC in Phnom Penh, Aug. 7, 2014.

My parents and two brothers were among the estimated two million people killed by execution, forced labor, starvation and illness during the Khmer Rouge regime.

Now after seven long years, the U.N.-backed Khmer Rouge war crimes tribunal found two aging Khmer Rouge leaders, Noun Chea and Khieu Samphan, guilty of crimes against humanity and sentenced them to life in prison.

The conviction of these two most senior leaders of the Khmer Rouge on Aug. 7, along with the previous conviction of a prison chief for the extermination of one-quarter of Cambodia’s population between April 1975 and January 1979, may be the last action of the court.

So has justice been done for the victims of this brutal regime?

Established in 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), as the tribunal is officially known, started its first case (001) with just one suspect, Kaing Guek Eav, alias Duch, head of the notorious S-21 prison, where the Khmer Rouge tortured and killed approximately 17,000 people. It took the ECCC six years to find Duch guilty of crimes against humanity and war crimes and sentence him to life in prison in 2012.

Although case 002 started out with four defendants, only two would make it to the end of the trial. Khmer Rouge leaders Ieng Sary, who was deputy prime minister in charge of foreign affairs, and his wife, Ieng Thierith, who was the minister of social affairs, managed to escape justice.

Ieng Sary was directly responsible for the death of several thousand Cambodian intellectuals whom he had lured from abroad to return home, in the name of helping to rebuild the nation after the Khmer Rouge took power in 1975. But until his arrest in 2007, Ieng Sary and his wife had long lived undisturbed in a luxury villa in Phnom Penh.

Due to the length of the trial, Ieng Thirith, 80, was diagnosed with Alzheimer's, judged unfit to stand trial and released from the ECCC’s custody.

Ieng Sary died before the court rendered a verdict. Rather than dying in disgrace, he was honored with an elaborate funeral ceremony in Malai, Banteay Meanchey, the former Khmer Rouge stronghold, and cremated with dignity. It was a devastating insult to the Cambodian victims who were brutally killed like beasts and pushed into mass graves during his Khmer Rouge regime.  

As one of RFA’s listeners puts it:

Where is justice? This murderer received a big funeral ceremony and publicity while millions, including my father, were murdered and treated like animals under his rule. I don't know how Cambodian people stood by and allowed this. He and the rest of his comrades certainly don't deserve this. I hope, for the sake of the millions of people he slaughtered, they will all go to hell and never ever see the light again, and better yet never return to earth. I hope his wife and kids read this comment. (March 23, 2013)

Now after spending more than seven years and U.S. $200 million, the legacy of the ECCC may be that it tried and convicted only three of the Khmer Rouge leaders responsible for the death of nearly two million people.

Political Interference

While the international investigating judge of the tribunal wants to pursue two more cases against five suspects also believed to be responsible for mass killings during the Khmer Rouge regime, Prime Minister Hun Sen is publicly objecting to any additional arrests or indictments.

He claims that any further court cases would lead to another civil war. He said, “I would like to see this U.N.-backed tribunal fail rather than to have more suspects brought to this court.”

Of course, most observers do not think a civil war is likely. After so many years of fighting, no former Khmer Rouge soldiers want to go back to the jungle just to protect a handful of their former aging leaders.

Instead most believe that Hun Sen simply wants to protect some senior government officials who were former KR leaders, including Foreign Minister Hor Nam Hong, State Minister Keat Chhun, Senate President Chea Sim, and Parliament President Heng Samrin. Also, many believe that the prime minister wants to have military support from the former Khmer Rouge soldiers.   

The effect of Hun Sen’s public remarks was like a direct order to the ECCC. Co-national investigating judge You Bunleng has since refused to cooperate with his foreign counterparts. Since October 2011, at least two international investigating judges, German Judge Siegfried Blunk and Swiss Judge Laurent Kasper-Ansermet, resigned, citing government interference and obstruction in their efforts to investigate cases 003 and 004.

Not far enough

While the trial and conviction of Duch, Noun Chea and Khieu Samphan has carefully documented the crimes of the Khmer Rouge and provided some justice for the victims, it does not go far enough for people like myself who are haunted by the unspeakable atrocities that our family, friends, and country suffered at their hands.

Brad Adams of Human Rights Watch said, “The trial barely scratched the surface of the crimes committed by the Khmer Rouge.”

If 17,000 died at the direction of just one man at the notorious S-21, how many others are responsible for the hundreds of thousands of deaths in the security offices and prisons spread across the country? Many of these murderers are still living free. It would be impossible to bring every one of them to court, but at least the ones whom the ECCC has already identified as the most responsible for the mass murders should have been brought to justice.  

Even without cooperation from the national judge, the international investigating judge has gone forward to investigate cases 003 and 004. However, it is unlikely that Cambodian judicial police would carry out an arrest if the international judge issued a warrant for it.

Today, in Cambodia, it is clear that only the country’s strongman can order such an arrest. History will have to judge who prevented the Cambodian people from seeing real justice.

Exploitation of justice and corruption

Once the U.N.-backed tribunal started functioning in 2006, systematic corruption on the Cambodian half of the court also became evident. Cambodian national staff were forced to give a substantial amount of their monthly salary to a high-ranking official of the ECCC to get and keep a job.

The money was believed to have been passed on to a high-ranking member of the government cabinet. This outrageous scandal was leaked to the press and lead to mounting pressure on the ECCC to come clean.  

In 2008, Director of the Office of Administration Sean Visoth, who has a close relationship with Deputy Prime Minister Sok An, went on permanent leave. Sean Visoth was believed to be deeply involved in the scandal. A formal investigation took place but accomplished little.  

It is believed that bribery in the court still exists today. This amounts to another humiliation for the victims. Their pain and suffering have become no more than a way for others to make money.

Legacy left by ECCC

The U.N.-backed tribunal was formed as a hybrid court that would use both international and Cambodian legal practices. It should have been a role model for Cambodia’s national courts, which are corrupt and politically dominated.

Instead, the world watched as Cambodian court officials continued to follow their old ways, despite the efforts of international court officials to set a model for higher, more professional standards.

Many ECCC monitors have admired the legal practices and due process in this hybrid court. All legal principles, such as equality before the law and the presumption of innocence before being proven guilty, and the defense and the prosecution working with equal status seem to have been fairly implemented.

In addition, the civil party representative defending the victims’ interests is allowed to actively participate in the trial process, which does not apply in the Cambodian national courts.

But in order for the U.N.-backed tribunal standards of justice to be implemented in Cambodian courts, it first requires a political willingness to reform on the part of the ruling party that dominates the courts for its individual and party interests. And the Cambodian People’s Party (CPP) shows no sign of giving up this power.

Second, the individual judges need to change their way of working and stop corruption. Judges need to stand up and fight for their constitutional rights. This would require much sacrifice, courage, and determination on their part. 

Third, the Cambodian Parliament needs to nullify all laws that subvert the independence of the judiciary and to pass laws that ensure that the judiciary has an adequate budget and decent salaries.

Without a thoughtful vision and action plan, even the Cambodian prosecutors and judges, who now enjoy high salaries working for the U.N.-backed tribunal, will return to their corrupt practices when they rejoin the national court system.

Intensifies the pain

Knowing both international and Cambodian politics, many Cambodians, including myself, who lost so many loved ones during the Khmer Rouge period, never expected first-rate justice to come from this hybrid court.  However, the extent of political interference in the work of the court casts an even deeper shadow over any claim of justice and intensifies our pain.

Nearly two million people suffered horrible, needless deaths, yet only three people have been judged guilty of this crime. It is clearly not enough—and it is clearly not justice.

Sok Ry Sum is a senior editor with RFA’s Khmer Service and a Cambodian lawyer.

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