Finding Justice in Cambodia: Too Little, Too Late?

In early July 2006, one of the great experiments in international justice was launched: the Extraordinary Chambers in the Courts of Cambodia (ECCC). The goal was to finally achieve justice for the nearly two million Cambodians who died during the rule of the Khmer Rouge. Two hundred and sixty million dollars and ten years later, the result is three convictions. The court’s journey since then has been marred by internal conflicts and, according to some, external interference. So far, five senior regime figures have been tried: Kaing Guek Eav, also known as Duch, who ran the infamous S-21 security center; Nuon Chea, the regime’s second-in-command; Ieng Sary, its foreign minister; Ieng Thirith, social affairs minister; and chief-of-state Khieu Samphan. Until 2016, Duch was the first and only defendant to get a full sentence for his charges of crimes against humanity. Ieng Thirith was excused from her trial, suffering from Alzheimer’s disease and later died, following her husband Ieng Sary. Now the number of successful convictions is three, after Cambodia’s Supreme Court Chamber upheld the whole life sentences of Nuon Chea and Khieu Samphan in November 2016. Chea, now age 90, and Samphan, 85, were the focus of what the court dubbed “Case 002,” with Duch’s trial having been “Case 001.” Proceedings for Case 002 began in 2011, but the Trial Chamber made moves to separate the charges into a series of smaller trials, narrowing the scope. Referred to as Case 002/01, it included the April 1975 evacuation of over two million Phnom Penh residents to the countryside as part of a totalitarian social experiment and a second phase of mass movement in September of the same year. Focusing specifically on the events surrounding the Khmer Rouge’s rise to power in 1975, the Trial Chamber granted the Co-Prosecutors’ request to include the notorious execution of Lon Nol’s Khmer Republic soldiers at Tuol Po Chrey, in the western Pursat Province. Three months after the Trial Chamber’s lengthy guilty verdict in August 2014, Nuon Chea’s team entered 223 grounds of appeal, with Khieu Samphan’s team entering a total of 148 grounds. The final total was 371 grounds, a daunting number of legal claims for any court, let alone one based in a novel legal foundation like the ECCC. Chea’s grounds for appeal were largely centered around claims of the Trial Court being biased and "incapable of impartially assessing the evidence." In addition, they cited the court’s failure to bring vital witnesses, ranging from the abdicated King Norodom Sihanouk (who died in 2012), Henry Kissinger and, in particular, ex-Khmer Rouge official and de-facto leader of the Vietnamese-backed People’s Republic of Kampuchea (1979-1981), Heng Samrin. Samphan’s appeal focused on being unaware of the Khmer Rouge’s crimes, claiming he had no part in the decision-making that took place in the regime’s inner circle. News of the life-imprisonment sentences being upheld was met with mixed reactions – intense relief that justice had finally been served, but disappointment that it had taken six years to convict the first and only remaining former senior Khmer Rouge officials. Complaining of political interference, critics have blamed the rift between the local and international sections of the tribunal for its ups and downs, and has in recent years focused on the ability of the court to expand its scope past Case 002. In 2009, a French co-investigating judge called senior members of the ruling Cambodian People’s Party (CPP) to testify, including the party’s late president Chea Sim, National Assembly President Heng Samrin, former Foreign Minister Hor Namhong and Keat Chhon, a former finance minister, none of whom chose to appear before the court. A year later Prime Minister Hun Sen expressed his disapproval of the notion that the court’s remit extended beyond Case 002, citing the threat of civil war. The controversy intensified in 2011 when Nuon Chea’s then-co-defense lawyers – Michiel Pestman and Andy Ianuzzi – lodged a complaint to a local court against Hun Sen and 10 other CPP leaders over their “criminal interference” into the tribunal’s affairs. But the cases against the CPP’s top brass have never been heard in the local court, and Hun Sen has continued to warn against the hybrid tribunal investigating more suspects. The international side of the court, however, has defied such warnings on occasion, naming regional Khmer Rouge leaders such as Meas Muth, Yim Tith, Ao An, and Im Chaem as suspects in Case 003 and Case 004. But when, if ever, does the ECCC begin progress on Case 003 and 004? Not all of the court’s delays were due to external pressure. The defense lawyers for the accused clogged the three-tiered court system with numerous litigation claims, mostly centering around the conduct of the court, as they were rightly expected to do in a unique hybrid court of civil and common law. The same issues of an over-saturated court system will rear its head in the final stages of Case 002/02. 2019 is the expected date for the court to shift away from Case 002 – about 44 years after the height of Khmer Rouge power. The lengthy delays are not merely disheartening and deflating for the Cambodians seeking justice, they also exacerbate one of the court’s central problems: the difficulties of obtaining evidence for crimes committed nearly half a century ago. Some experts have noted that in relative terms, the time-frame of the Khmer Rouge Tribunals has been akin to that of the post-conflict justice processes in Rwanda and Bosnia. Nazi war criminals continued to be indicted for war crimes for decades after the end of the war, serving as an important reminder that the justice process for crimes against humanity has no end date. Despite criticism leveled at the court, a spokesman for the ECCC, said in a statement it had overcome numerous obstacles to seek justice for the Cambodian people and, more widely, for humanity as a whole. “It gives a chance to the victims to get justice and mental reparations and relief when many of the stories have been exposed and heard to the whole world,” he said. UN Photo/Mark Garten: Secretary-General Ban Ki-moon addresses the Extraordinary Chambers in the Courts of Cambodia (ECCC), the UN-backed tribunal responsible for trying senior members of the Khmer Rouge, in Phnom Penh, Cambodia. About the author: Akshan de Alwis is Diplomatic Courier’s United Nations Correspondent based in New York City.