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Justice Squandered: Cambodia’s Khmer Rouge Tribunal

Cambodian Prime Minister Hun Sen was preparing to fight a civil war in 1997 when a senior United Nations official stopped by to ask if he’d like help putting the former leaders of the Khmer Rouge on trial. With a figurative wave of the hand, Hun Sen, a former Khmer Rouge commander himself, said in effect: Sure, go ahead. At that moment, his mind was obviously elsewhere.

Eventually, he and his co­–prime minister, Norodom Ranariddh—the opposition in this little internal war—separately signed an agreement asking the UN for help staging a trial. But then, after Hun Sen defeated Ranariddh and became the nation’s sole leader, he probably looked back and realized that agreeing to a trial was one of the greatest mistakes he had ever made. After all, he and most of his colleagues in government were former Khmer Rouge officers themselves.

So, Hun Sen set out to sabotage the idea he had agreed to. And now, ten years after the court opened for business, he has largely succeeded.

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Today, the court is saddled with charges of rampant corruption and malign Cambodian government interference in its operations. Several judges and staff members have quit in disgust. Its reputation is now so bad that donors have largely stopped giving money, so the court is broke. And the trials have dragged on for so long that defendants are growing ill and dying.

Theary Seng, who was left an orphan after the Khmer Rouge killed her parents, became the court’s first “civil party” victims’ representative. She withdrew from the proceedings in 2011, saying the trial had become “an irredeemable political farce.”

 

The problems began cropping up just as soon as the UN and the Cambodian government began negotiating the trial’s terms in the months following that initial agreement in 1997. Hun Sen and his aides threw up one objection after another. They professed concern about national stability. They complained about infringement upon Cambodian sovereignty. They insisted that any trial take place in home courts—even though Hun Sen knew full well that his court system was thoroughly corrupt. In fact, reforming the courts had been on his own campaign agenda during the most recent election. Today, that has still not been done.

“If foreigners have the right to lack confidence in Cambodian courts,” Hun Sen said defiantly, “we have the right to lack confidence in an international court.” But the UN continued to object to the government’s obstructive pronouncements and refused to use judges handpicked by, and utterly beholden to, Hun Sen and his aides.

“It became such a difficult, convoluted, lengthy, very, very difficult process,” said Kent Wiedemann, the US ambassador to Cambodia at that time, largely because “as far as the UN was concerned, there was no Cambodian qualified to participate in the tribunal in any meaningful way. The secretary general wanted to appoint judges with eminent standing in the international community.”

Finally, Kofi Annan, then secretary general of the UN, threw up his hands and said he’d had enough. Hun Sen must “change his position and attitude,” he declared, and “send a clear message that he is interested in a credible court, a credible tribunal which meets international standards.” Until that day came, Annan announced, the United Nations was backing out of the discussions.

Ten months later, however, the UN General Assembly stepped into the debate and rescinded Kofi Annan’s previous order. It passed a resolution directing “the secretary general to resume negotiations without delay, to conclude an agreement with the Government of Cambodia, based on previous negotiations, to try those suspected of being responsible for the atrocities committed by the Khmer Rouge.”

So it was that the UN and Cambodia commenced negotiations over how the court would be structured, and eventually they agreed to establish a hybrid court with both Cambodian and international judges and prosecutors. They called it the Extraordinary Chambers in the Courts of Cambodia (widely known as the ECCC) to differentiate it from Cambodia’s debased domestic court system.

David Scheffer, who was the US ambassador at large for war crimes issues, visited Cambodia and came up with the compromise that made the negotiations succeed. Under Scheffer’s plan, a majority of the trial judges could be Cambodian. But no decision could be reached unless at least one international judge agreed as well. That formula settled six years of tortured, acrimonious debate. Finally, the court opened for business in 2003.

Two years later, David Tolbert, a United Nations lawyer working at the International Criminal Tribunal for the former Yugoslavia, got a call. Could he please go to Cambodia and try to straighten out the war crimes courtroom there? Nothing was moving. The court was stuck.

Tolbert, a tall, garrulous North Carolinian with a world-weary manner, was to bring his experiences in the heart of the world’s worst recent genocidal moments to Cambodia, where a past genocide was being litigated. The problems he found there were altogether different from the ones he had been dealing with. The court had been trying to organize itself for several years, but Tolbert says that when he arrived, “it had no administrative leadership, particularly with respect to court management, including translation and interpretation and the witness-protection program.”

The international side had essentially given over judicial management to the Cambodian side. But, Tolbert says, “there was really very little judicial management in place. The Cambodian staff in charge had virtually no knowledge or experience, as most had no judicial background. And yet there were a large number of them,” hundreds in fact. What’s more, Cambodian human rights groups alleged that each of the Cambodian judges had paid a large bribe to get his seat on the court’s bench, which would not be at all unusual in that state.

Tolbert concluded that there was no way a trial could proceed at that point. He spent a few weeks drawing up a series of recommendations to get the process moving. Then he returned to Yugoslavia.

In 2008, when the new UN secretary general, Ban Ki-moon, asked Tolbert to step back into the Khmer Rouge trial, he quickly found that five years after the agreement to set up the court, “very little progress had been made. I proposed reducing the budget by 35 percent. The staff was bloated. They had 15 gardeners, which looked like a job-creation program to me.” He also quickly found that Cambodia’s endemic corruption had reared its head in the courthouse, where Cambodian employees were required to turn over a portion of their paychecks to their supervisors.

All during Hun Sen’s battle with the United Nations about the trial, he had been trying to ensure that the UN did not set up an autonomous body inside his country that he could not manipulate to protect himself and his fellow former Khmer Rouge friends. But as he and the rest of the world soon discovered, the Khmer Rouge trial presented a new and different liability. It exposed Cambodia’s way of doing business—incompetent, indolent, rapacious, corrupt—for everyone in the world to see, like a dollhouse with no back wall.

 

Despite all of that, the court proceeded with the trial of Kaing Guek Eav, widely known as “Duch”—the commander of S-21, the prison and interrogation and torture center in Phnom Penh, where fifteen thousand people died. On July 26, 2010, the court convicted Duch of crimes against humanity and sentenced him to thirty-five years in prison—by almost every reaction, an exceedingly light sentence for a man who oversaw the torture and deaths of so many thousands of innocent civilians. Even with that, he won’t serve the full thirty-five years. After subtracting his time already spent in jail, more for cooperation and good behavior, and still more for a period of illegal detention in a military jail, the court left him with nineteen years to serve. On the day the judge sentenced Duch, he was sixty-seven years old, meaning he could conceivably walk out of prison a free man one day.

After that, the court took up what it called Case 002, four senior Khmer Rouge leaders who were to be tried together. At the same time, more than a dozen legal investigators, foreigners on the UN payroll, were researching new suspects. And in the fall of 2009, the court announced that it intended to charge roughly half a dozen additional suspects. These were labeled cases 003 and 004.

But Hun Sen, implacably opposed, almost instantly went on the offensive. The prime minister was already well known for his “colorful” quips. For example, he had labeled anyone criticizing the trial’s Cambodian judges as “not human; they are animals,” who “even want to seduce their own parents.” Now, referring to the additional defendants, he insisted, “This will not happen on my watch. The UN and the countries that supported Pol Pot to occupy Cambodia’s seat at the UN from 1979 to 1991 should be tried first. They should be sentenced more heavily than Pol Pot.”

Then later that year, undeterred by its illogic, he took up a new line of argument. “If you want a tribunal, but you don’t want to consider peace and reconciliation, and war breaks out again, killing two hundred thousand or three hundred thousand people, who will be responsible?” he asked. “Finally, I have got peace in this country, so I will not let someone destroy it. The people and the nation will not be destroyed by someone trying to lead the country into instability.”

No one bothered to point out that during the Duch trial, there was no unrest, no protest, no sign of any trouble at all. In fact, the vast majority of Cambodians were largely unaware that the trial was under way. Eighty percent of the people live in the countryside, most of them with no modern conveniences such as radio or television. They’re uniformly preoccupied with finding enough food to feed their families each day. The trial was on during the day, when they were at work in the rice paddies. The few who did have car battery–powered televisions, if they had time to watch them, most likely just wanted to be entertained.

Some of the handful who did watch, largely in urban areas, were outraged by the treatment the defendants were getting—three meals a day, hand-delivered; living in air-conditioned cells; sleeping on actual beds with mattresses, a luxury in Cambodia. Bou Meng, a Khmer Rouge survivor, remarked: “I am extremely envious of Duch and the treatment he receives. I don’t understand why the court treats him so well, much better than me.” But most preferred to ignore the trial.

One reason was that many older Cambodians were beset with traumatic mental illnesses, including post-traumatic stress disorder, still lingering after the horrors of the Khmer Rouge years. (In one clinical study of Cambodian refugees who came to the United States in the early 1980s and now live in Long Beach, California, sixty-two percent were diagnosed with PTSD—twenty-five years after their trauma.) The last thing most people in Cambodia wanted to do was watch someone on TV describing their years of horror.

Hun Sen blocked several past and present Cambodian officials from testifying, despite subpoenas from the court. And a Cambodian judge he appointed to the ECCC had a documented history of accepting bribes in exchange for verdicts while he presided over a Cambodian court.

But while Hun Sen’s frontal attacks may have been little noticed by most Cambodians, they had a strong effect in the courtroom. One international judge resigned, blaming government interference in the proceedings, as did half of one defendant’s defense team. A reserve justice, Laurent Kasper-Ansermet, who is Swiss, was promoted to fill the empty judge’s chair, per ECCC protocol. Kasper-Ansermet then tweeted that he looked forward to hearing cases 003 and 004. That was enough to do him in.

On obvious orders from the prime minister’s office, his domestic co-judge refused to work with Kasper-Ansermet. He was denied use of court cars and drivers. He was not given access to the official stamps used to validate affidavits and other court records. And the Cambodian government’s Supreme Council of Magistracy refused to approve his appointment—even though this domestic body answerable to Hun Sen had no authority to involve itself in the appointment of international judges.

After less than six months, Kasper-Ansermet resigned because, as he said, he was unable to work with rampant Cambodian obstructionism. Nearly all of the international investigators quit, too.

 

For many legal experts today, the ECCC remains an embarrassment to the international legal system. Since its inception in 2003, the court has tried only one individual for the horrific genocide carried out by the Khmer Rouge: Kaing Guek Eav, or Duch, giving him a sentence so light that many Cambodians were appalled. Just one conviction and the court reports that it has already spent $208.7 million over the last ten years. Last year it asked for another $92 million from international donors to fund operations going forward.

But by all accounts donor fatigue has set in alongside disillusionment with Cambodian corruption and obstructionism, and very little money has been raised. In fact, this spring the court’s Cambodian staff went on strike because they had not been paid since last November. Without staff, including court reporters, transcribers, and translators, the court could not function. It shut down. Finally the court management promised to pay them—“sometime soon.” The staff went back to work but vowed to quit for good if the promise was not kept. Still, as international court officials repeatedly pointed out, the Cambodian government was responsible for paying these people. Apparently it was not unhappy to see the court shut down.

That was hardly the only problem. The four former Khmer Rouge leaders in case 002—Ieng Sary, Nuon Chea, Ieng Thirith, and Khieu Samphan—looked likely to be the final defendants. But all of them were already so old that they were making the case moot.

Last September, Ieng Thirith, minister of social action in the Pol Pot regime, was diagnosed with Alzheimer’s disease, so severe that she could not function in the courtroom. She was released. Then in March 2013, Ieng Sary, her husband and former minster of foreign affairs, died. He was eighty-seven years old.

That left only eighty-six-year-old Nuon Chea, who was known as “Brother No. 2” after Pol Pot, and Khieu Samphan, eighty-one, former president of the so-called Democratic State of Kampuchea. Both are frail and sickly.

The court has said it will need another year to complete these trials. Whether there will ever be a verdict, and if there is, whether the remaining defendants will live to see it, are questions on everyone’s mind. Also, we can’t know what deleterious acts Hun Sen may still have planned.

As the Cambodian government’s Office of the Royal Prosecutor recently put it: The prime minister “has an obligation to ensure political stability and the well being of the Kingdom of Cambodia,” suggesting that Hun Sen can do whatever he wants about the trial and say his actions are intended to assure “stability.”

But Ou Virak, president of the Cambodian Center for Human Rights, is pessimistic—like so many Cambodians. “This really is a case of now or never,” he said. “Both the ECCC’s reputation and justice for victims of the Khmer Rouge are in the last-chance saloon.”

Joel Brinkley is a professor of journalism at Stanford University and a Pulitzer Prize–winning former foreign correspondent for the New York Times.

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