On the Issues: Cambodia

Published: 
December 7, 2007
By: 
Scott Worden

Scott Worden, a specialist on both transitional justice and Cambodia, discusses the legacy of the Khmer Rouge and Extraordinary Chambers in the Courts of Cambodia (ECCC).

Image on right: ECCC judges and court officers in Phnom Penh, Cambodia, December 2007. (AP Photo)

The recent arrests of major figures from Cambodia’s former Khmer Rouge regime garnered global attention. Among the five apprehended were the warden of a notorious prison where an estimated 15,000 Cambodians were interrogated, tortured, and killed in the 1970s, and the architect of the regime’s radical and destructive ideology.

The arrests come soon after a unique system of transitional justice was created to address national reconciliation in Cambodia. The Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid of both UN and national systems, has as its mandate to try former Khmer Rouge officials with crimes against humanity, including war crimes, murder, torture, and genocide.

Scott Worden is an advisor to USIP’s Rule of Law program, and co-director, International Network to Promote the Rule of Law (INPROL). He is a specialist on both transitional justice and Cambodia. In this interview, Worden discusses the legacy of the Khmer Rouge and the current process of transitional justice in the country.

What are the building blocks of transitional justice?

Transitional justice commonly refers to the full range of policies designed to address the legacy of mass atrocities committed during violent conflict. This includes: truth commissions that investigate the facts of past violence; reparation for victims; official memorials of past violence; and accountability for perpetrators, including criminal trials. Although there are no simple solutions to achieve these goals, experience with numerous post-conflict countries shows that when past atrocities are not specifically addressed, fissures remain along the lines of the conflict and violence is more likely to recur.

Can you provide an overview of the Khmer Rouge regime?

From April 1975 to January 1979, the Khmer Rouge controlled Cambodia and subjected its citizens to some of the most barbaric treatment of the Twentieth Century. In the name of creating a socialist, agrarian utopia based on Maoist ideals, the Khmer Rouge emptied the cities; killed intellectuals, professionals, and members of the former royalist regime; persecuted monks and ethnic minorities; and forced the remaining population to work in the “killing fields” under starvation conditions, often until death. Over four years, an estimated 1.7 million Cambodians were killed, representing nearly a quarter of the country’s population.

The regime lasted until its ouster on the part of invading Vietnamese forces in early 1979. Although the Khmer Rouge endured as guerrilla bands and a political party, its last gasp came in 1998, with the death of its leader, Pol Pot.

To what extent does the legacy of the Khmer Rouge regime linger in Cambodia today?

The Khmer Rouge is gone from Cambodia as a military or guerilla force, and many of its leaders have died, but its legacy remains strong in the form of permanent injuries and deep psychological scars for the survivors, lack of economic development countrywide, and pervasive criminal impunity.

Until now, there has been scant acknowledgment of the scale and magnitude of the Khmer Rouge’s crimes within Cambodia. Discussion of Khmer Rouge atrocities has been actively discouraged, as many victims have been encouraged to “forget the past” and concentrate on their daily struggles for livelihoods. Such quiescence has come about because of the fear that political compromises over the handling of the Khmer Rouge come into question. This phenomenon has caused many emotional wounds to fester, and many survivors experience symptoms of post-traumatic stress.

Developmentally, the Khmer Rouge regime was uniquely debilitating among countries that have experienced civil wars, in that the regime intentionally targeted educated and skilled citizens for destruction and ignored economic development for the duration of its rule. Thus, when the war was over, very few professionals were left to rebuild the country. That capacity gap is still being filled decades later.

In the public sphere, the lack of accountability for Khmer Rouge atrocities has contributed to a pervasive culture of impunity, whereby almost no powerful officials or businessmen have been prosecuted for any significant crime – unless they happen to fall out of political favor. A judicial malaise that stems from the inability of the government to prosecute the most serious crimes until now can be felt across the country. Implicitly, the sense is that if crimes against humanity go unpunished, so too can corruption and relatively less serious violent offenses. An organized transitional justice process formed based on public consultations can help ameliorate this situation.

Expand on the ECCC. Why was it started? How long will it last?

Prior to the establishment of the ECCC, the only efforts to deal with past crimes were to erect a memorial and museum in Phnom Penh and to establish a day of remembrance on the date of the Khmer Rouge's overthrow.

The ECCC’s mandate is to prosecute “senior leaders” of the Khmer Rouge and those “most responsible” for atrocities committed between 1974 and 1979. This leaves some discretion to the court as to the number of perpetrators that will be prosecuted. But the consensus is that there will be no more than ten defendants, with five to seven viewed as the most realistic figure. This is because politically, the Cambodian government does not want to see the court turn in to a witch-hunt that may pursue more minor Khmer Rouge figures that are currently connected to the government. More pragmatically, the court’s limited funding – $56 million over three years – will not allow for more than a few trials.

The idea of the ECCC tribunal was initiated in 1997, when Cambodian Co-Prime Ministers Hun Sen and Norodom Ranarindh wrote the United Nations to request assistance in providing accountability for senior Khmer Rouge leaders that were still at large. A UN commission of experts explored various options for pressing criminal charges and recommended that trials be held under international guidance, preferably outside the country. This began a protracted period of negotiations that lasted nearly ten years before the court was finally inaugurated in June 2006.

Under the agreed framework, the ECCC is a hybrid international tribunal that is composed of both Cambodian and international judges, prosecutors, and court staff. The court will apply Cambodian law, but only insofar as it complies with international standards. The majority of judges are Cambodian, but at least one international judge must agree to any verdict. In this way, Cambodia and the UN sought to respect Cambodia’s sovereign right to prosecute its own criminals, but in a manner consistent with international norms. Although it has not been finalized, the court statute also includes a novel mechanism to provide non-monetary compensation to victims who may participate in the trials.

The ECCC’s joint management structure is a unique and untested arrangement, much different from the entirely international courts that have prosecuted war criminals in Rwanda and the former Yugoslavia. Already, tensions have arisen between the Cambodian and international personnel over issues of both working style and legal substance. The degree to which the parties can work together in the interests of justice, rather than national aims, will be critical to the court’s success or failure. In fact, a recent report by UNDP auditors revealed serious deficiencies in court administration that, if left unchecked, could lead to the withdrawal of the UN from the trial process.

What figures have been successfully indicted and prosecuted as of today?

No Khmer Rouge trials have yet begun. However, the ECCC has now arrested all five Khmer Rouge leaders whom Cambodian and international prosecutors had indicted. These figures are variously charged with crimes against humanity, war crimes, murder, torture, and genocide. Each is accused of playing a leading role in the Khmer Rouge’s massive criminal enterprise.

Kaing Guek Iev, aka Duch – Master of the Khmer Rouge’s principal gulag, Tuol Sleng, where thousands of Cambodians were imprisoned, interrogated, tortured, and killed. Of an estimated 15,000 prisoners sent to Tuol Sleng, only six are known to have survived. (Duch became a born-again Christian in the 1990s and has spoken openly of his involvement in the torture and killings at Tuol Sleng. He has indicated his willingness to testify against the other accused.)

Nuon Chea – So-called “Brother Number Two” and second in command after “Brother Number One” Pol Pot. An architect of the Khmer Rouge’s radical and destructive ideology, he is accused of devising and implementing the Party's execution policies.

Ieng Sary – Khmer Rouge foreign minister who subsequently represented Democratic Kampuchea (the official name of Cambodia under the Khmer Rouge) at the UN. The Vietnamese-backed regime convicted Sary of genocide in absentia after the 1979 invasion. In 1996, the Cambodian government pardoned him for that conviction as part of a deal that led to the defection of many Khmer Rouge remnants then still hiding in the jungles. This pardon should not excuse the ECCC’s charges, but will be a major point of contention when his trial begins.

Ieng Thirith –Wife of Ieng Sary and the minister of social action during the Khmer Rouge. She was a member of the inner leadership circle that implemented the policies of forced relocation and work.

Khieu Sampan – Nominal head of state for much of the Khmer Rouge regime and presided over a majority of the administration. He claims in a recent book that he was only a figurehead for the organization and, implausibly, that he did not know the extent of the regime’s destructiveness.

Now that the accused have been charged and detained, the case goes to the investigating judges, who serve as impartial judicial magistrates responsible for independently investigating the prosecutors’ charges and determining indictments are warranted. The cases will proceed to trial only after the investigating judges determine that the evidence supports it.

Following the arrest of these five, further indictments in the near future are unlikely. The tribunal's mandate is limited to the top hierarchy, and the court will struggle to finish its task. But there is always a possibility that if the tribunal is successful and gains momentum and funding, it could look at other suspects. For now, the court will have its hands full preparing the cases against these individuals, as judicial magistrates must thoroughly investigate the charges before the accused are brought to trial.

What challenges does the ECCC face? Will it be able to provide justice?

Many observers firmly believed that they would never see the day that prominent Khmer Rouge leaders would be put behind bars for the crimes they committed more than three decades ago. Even though it is only for pre-trial detention, and the suspects are still presumed innocent, these five arrests of figures who once were supremely powerful in Cambodia mark a significant milestone in the long road to accountability.

But the challenges for credible and successful prosecutions are far from over. Logistical and procedural delays, as well as serious allegations of political interference and corruption have plagued the ECCC. The government can disrupt or derail trials to suit perceived political needs because a majority of Cambodian judges will hear the cases and the Cambodian prosecutor and investigating judge must concur with any trial decisions.

The next test of political volition will come when the office of the investigating judges reviews the prosecutors’ charges to determine whether the cases against the five accused will proceed to the trial phase. Meanwhile the court must also overcome a series of administrative challenges, from finishing the courtroom preparations to hiring translators and implementing finance controls to prevent corruption. Moreover, the court is set to run out of money just after trials begin unless it can convince donors to contribute more (the ECCC is will soon seek an additional $43 million to fulfill its mandate).

Each of these obstacles alone can thwart eventual verdicts in the Khmer Rouge cases. Together they constitute a daunting challenge. But the fact that the court has reached this point is remarkable to many, and offers the best hope in decades that Cambodians will see some measure of justice for the tremendous atrocities of the Khmer Rouge.

The views expressed here are not necessarily those of USIP, which does not advocate specific policy positions.

December 7, 2007
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