Cambodia on Trial

Asia:NZ contributor Vaughan Yarwood assesses the slow-running process of bringing the remaining Kymer Rouge leaders to justice.

The tribunal set up to bring Khmer Rouge leaders to justice for atrocities committed when the regime controlled Cambodia in 1975-1979 heard the final arguments in its first trial — that of prison head Kaing Guek Eav — in November 2009. Kiang Guek Eav ran Tuol Sleng, Phnom Phen’s notorious S21 prison, in which an estimated 17,000 people died. A verdict on the case is expected some time in 2010.

Earlier in 2009 the UN-backed tribunal broke new legal ground when, for the first time at an international criminal court, victims of the accused — termed ‘civil parties’ — were represented along with the accused and prosecutors. Yet the slow-moving tribunal, the hybrid Extraordinary Chambers in the Courts of Cambodia (ECCC), has been dogged by red tape, cost overruns and accusations of corruption and political interference which some say are seriously undermining its credibility.

Even the process of establishing the tribunal was ponderous. It came into being 30 years after the fall of the Khmer Rouge and only after a decade of protracted negotiations in which UN hopes of holding the trials outside the country were thwarted by the Cambodian government which, in turn, failed in its bid to exclude international judges from the tribunal (New Zealander Dame Sylvia Cartwright is one) and in its efforts to broaden war crimes investigations to include US carpet-bombing of Cambodia during the Viet Nam war. By comparison, the Nuremberg trials began within a year of the fall of Nazi Germany, the Rwanda Tribunal immediately followed the genocide in that country and the trials in Yugoslav started within six years of the Bosnian genocide.

In overseeing the trial process the ECCC faces a difficult task — bringing justice to a country that has undergone unimaginable suffering and which remains politically and socially fragile. A measure of the challenge is the involvement of the Dart Centre for Journalism and Trauma which has worked to support Cambodian journalists covering the trials.

Under its ruthless and charismatic Marxist leader Pol Pot, the Khmer Rouge attempted to sever Cambodia’s links with the outside world, declaring that it would start again at ‘Year Zero’.  The regime reduced the country, renamed Kampuchea, to a state of primitive agrarian purity, shorn of modern trappings including an educated middle-class, urban culture, religion and even a viable currency. In pursuit of a Communistic utopia, the Khmer Rouge forcibly depopulated the cities and imposed a four-year reign of terror in which an estimated 1.7 million people — 21 per cent of the population — died. Details and resources can be found at Yale University’s Cambodian Genocide Program.

Hundreds of thousands of educated middle-class Cambodians were tortured and killed in some 158 special detention centres of which the most infamous was Phnom Phen’s S21 prison, now a genocide museum. Its chief, Kaing Guek Eav, known as ‘Comrade Duch’ (pron. ‘Doik’), was discovered by a foreign journalist in 1999 living near the Thai border under an assumed name, ironically working at one point for the American Refugee Committee. He was arrested and incarcerated.

At his trial, which began in March 2009, the co-prosecutor described the prison as forming a ‘vital role in a widespread attack on the population of Cambodia’. Van Nath, one of just seven prisoners thought to have survived Tuol Sleng, testified: ‘We ate our meals next to dead bodies, and we didn’t care because we were like animals’. Prisoners were said to have been taken to the ‘killing fields’ at Choeung Ek, a few kilometres outside Phnom Phen to be executed, often after being forced to dig their own graves. Duch himself expressed ‘regretfulness and heartfelt sorrow’ for his involvement but said that he was powerless to prevent the atrocities.

One of the trial witnesses was New Zealander Rob Hamill, whose brother Kerry died at the prison after he and a friend were taken from their storm-battered yacht off the Cambodian coast, and accused of being CIA spies. A third companion was killed aboard the yacht.

‘The death of their first-born was the worst possible news for our family. He had not just been killed, he had been tortured’, Hamill told the tribunal. His search for justice is the subject of a New Zealand documentary, ‘Brother Number One’, which is scheduled for editing in April 2010. Latest information at the Brother Number One blog.

Even before judgement is passed on the first trial, however, the ECCC is in trouble. Khmer Rouge victims are angered at having their rights to speak and question witnesses curtailed. ‘They felt that the trial chamber was not very receptive to their suffering’, civil party lawyer Silke Studzinsky told the court in her closing statement. Changes are promised in the second trial, which is unlikely to begin until 2011.

Writing in the Wall Street Journal, Sophal Ear, an assistant professor of national security affairs at the US Naval Postgraduate School in California, noted other shortcomings, including the appointment in May 2009 of Helen Jarvis as head of the victims unit. Ear questioned the independence of the Australian Jarvis who once, in a letter co-signed by her husband, allegedly wrote: ‘We too are Marxists and believe that ‘the ends justify the means’... In time of revolution and civil war, the most extreme measures will sometimes become necessary and justified’.

Human Rights Watch Cambodia-based researcher Sara Colm also questions the reluctance of the tribunal to initiate further prosecutions beyond the five already begun, saying ‘the tribunal cannot bring justice to the millions of the Khmer Rouge’s victims if it tries only a handful of the most notorious individuals, while scores of former Khmer Rouge officials and commanders remain free’.

In a further complication, three of the accused, Khieu Samphan, Nuon Chea and Ieng Sary, have now been charged with genocide in addition to the existing charges of crimes against humanity. It is a move that legal specialists say could bog down the court interminably.

‘It’s going to be very helpful for the defence to throw up a big smokescreen’, Monash University’s Khmer Rouge authority David Chandler told Reuters. ‘This is foolishness and muddled thinking of a kind which, alas, has characterised this tribunal from the outset.’

- by Vaughan Yarwood

Fact box: The Accused

• Kaing Guek Eav (Comrade Duch). Ran the notorious Tuol Sleng detention centre, a converted school in Phnom Phen. The youngest surviving Khmer Rouge leader, he is said to have cooperated with investigators.

• Nuon Chea. Known as ‘Brother Number Two’, he is considered the organisation’s main ideologue. Nuon Che defected in 1998 and was pardoned by Cambodia’s prime minister, Hun Sen. He has been charged with war crimes and crimes against humanity.

• Ieng Sary. The Khmer Rouge foreign minister, he was the first senior leader to defect. Despite being pardoned, he was later arrested in a move that Hun Sen warned could trigger civil unrest in Cambodia.

• Ieng Thirith. The wife of Ieng Sary. She is said to have known of the brutality of the collective farms but to have done nothing to prevent the thousands of deaths they caused. Her sister was married to the Khmer Rouge leader Pol Pot.

• Khieu Samphan. The regime’s official head of state. Prosecutors charge that he ‘aided and abetted’ the imprisonment, persecution and murder of thousands of Khmer Rouge victims, though he maintains his innocence.

Other leaders, including the movement’s military commander, Ta Mok, and its founder, Pol Pot, are already dead and there are concerns that others are becoming too old to stand trial.

-by Vaughan Yarwood

Please note that the views expressed by the author do not necessarily reflect the views of Asia:NZ.

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In March 2009 NZPA's Maggie Tait covered the Duch trail on an Asia:NZ-funded assignment. This is her report.