Global Policy Forum

By Sopheada Phy

After 30 years, a tribunal has finally been established to bring some of those responsible for the Khmer Rouge attrocities to justice. As Sopheada Phy demonstrates, however, the limited scope and poor design of this tribunal will ensure that the justice served will be superficial at best, as many of those, both inside and outside of Cambodia, who supported and sustained the brutal rule of the Khmer Rouge, will not be called to account for their crimes.

To my father, whose wisdom and encouragement inspired me to study peace, with love and affection.

"I thought we might be close to justice, but now I am no longer sure. It makes me feel very tired, and very sad… We were promised justice, but I am losing faith"

Sok Chea, 40 year old Cambodian survivor (as cited in Faiola, 2007, February 2)

Thirty years after the demise of the Democratic Kampuchea, internationally known as the Khmer Rouge regime, justice for the Cambodian victims has not been served – even though the Khmer Rouge Tribunal has been in the process of prosecuting the leaders and those most responsible. Finding justice for Cambodian people is quite important for the peace-building process in present-day Cambodia; Justice has been revealing itself as a fundamental element in healing the victim's trauma, bringing reconciliation, and building peace in Cambodia. Nevertheless, the time for justice is running out as some Khmer Rouge members have been aging and some have passed away because the protracted mechanism of trying the Khmer Rouge leaders for their crimes is taking too long.

This paper thus argues that peace-building in Cambodia through the existing Khmer Rouge tribunal has failed, since, as the trials have been designed, justice cannot be fully served for the Cambodian victims. In addition to the three-decade delay of establishing the trial, the limitations of languages in the law of the ECCC, and the lack of competent domestic judges, prosecutors and investigators, together with the burdensome legal and political environments ensure that the injustice and trauma of the Khmer Rouge regime will go unanswered.

In order to address the reasons why the tribunal has only just been established, almost thirty years after the collapse of the Khmer Rouge regime, and how justice could be served for the sake of the Cambodian victims, the history of the establishment of the Khmer Rouge Tribunal will be briefly documented, and then the delay in its creation will be explored. Finally the challenges facing the court will be analyzed, and some recommendations will be suggested to end the paper.

The Journey toward the Hybrid Khmer Rouge Tribunal

The Khmer Rouge Tribunal was first initiated by Vietnam, encouraging the Vietnamese-installed Cambodian government during the 1980s to try Pol Pot and his generals. This People's Revolutionary Tribunal was generally regarded as a "show trial" due to a lack of defense counsel and suitable due process, but was used nonetheless to prosecute Pol Pot and Ieng Sary, the deputy prime minister and minister of foreign affairs, in absentia on 15 August 1979, and ended with death penalty sentences for both (De Nike, Quigley & Robinson, 2000). Still, in the collective memory of Cambodian survivors, the trial is regarded as unfair and unacceptable due to the fact that it was held under the Vietnamese influence.

After the Paris Peace Accord on Cambodia in October 1991, the establishment of a democratic and non-Vietnamese governement in 1993, and the changing needs of the Cambodian people after a long civil war, the Cambodian government gave political priority to peace and national reconciliation rather than justice. With this policy, the government could strengthen their own power while satisfying the desires of the people. This was reflected by the prime minister's words that "A trial would only open old wounds and lead to possible instability. We should dig a hole and bury the past and look a head to the 21st Century with a clean state" (Brophy & Beigbeder, 2005, p. 131).

Four years later, however, the co-prime ministers of Cambodia, Norodom Ranariddh and Hun Sen, requested assistance from the United Nations and the international community to bring those involved in committing crimes in the Democratic Kampuchea to justice.[1] On 12 December 1997, the United Nations General Assembly adopted a resolution entitled "Situation of Human Rights in Cambodia" to provide a mandate to the UN group of experts to investigate the possibility of bringing Khmer Rouge to justice. The group of experts was established by Secretary-General Kofi Anan with three major goals: "to evaluate the existing evidence and determine the nature of the crimes committed, to access the feasibility of bringing Khmer Rouge leaders to justice, and to explore options for trial before international or domestic courts" (Ratner, 1999, p. 949). Those experts included Sir Ninian Stephen, former Governor-General of Australia and former judge of the International Criminal Tribunal for the former Yugoslavia as chairman; Judge Rajsoomer Lallah, a longtime member of the UN Human Rights Committee and Special Rapporteur for Myanmar of the UN Commission on Human Rights; and Steven Ratner, participant in the Cambodian settlement talks and consultant to the US State Department on bringing Khmer Rouge to Justice (Ratner, 1999).

After their investigations, the experts concluded that the crimes committed during the Democratic Kampuchea could be regarded as genocide, crimes against humanity, and war crimes. This led to five options: "a tribunal established under Cambodian law, a United Nations tribunal, a Cambodian tribunal under the United Nations administration (through a bilateral agreement between the United Nations and Cambodia), an international tribunal established by multilateral treaty, and trials in states other than Cambodia."[2] The United Nations rejected the trial type proposed by the Cambodian government which led the Office of Legal Affairs of the United Nations Secretariat to end negotiations on 8 February 2002 (Bunyanunda, 2001).

The UN General Assembly, in Resolution 57/228, requested the Secretary-General to resume negotiations with the Cambodian government without any postponement on 18 December 2002 after Hun Sen again requested UN assistance from the Secretary-General (Klein, 2006). Resuming the previous negotiation, the UN and the Cambodian government agreed on the establishment of ad hoc Extraordinary Chambers in the Courts of Cambodia. Ultimately, a compromise was reached between the Cambodian government and the United Nations on 17 March 2003, after about seven years of painstaking negotiation. The so-called March Agreement concerning the creation of the Khmer Rouge Tribunal was approved by the consensus of the United Nations General Assembly on 13 May 2003, and officially adopted by Cambodian General Assembly in October 2004 (Klein, 2006). In June 2006, the trial was successfully established to prosecute the Khmer Rouge. Thirty years have passed, and the tribunal has just been created, while the Cambodian survivors continue to live in trauma, anxiety, and injustice.

The Role of the International Community

In the aftermath of the Khmer Rouge regime, Mysliwiec (1988) asserted that Cambodia "is the only third world country that is denied United Nations development aid" (p. 73). The international communities turned a blind eye to Cambodia during the 1980s while its people were living in hunger, poverty, and fear. Humanitarian aid[3] is a crucial factor to countries emerging from a dark age, and thus should have been provided to Cambodia at that time. Boua (1993) notes that:

For thirteen years, from 1979 to 1992, Cambodia did not receive UN development aid. The reason is that the government of the State of Cambodia was not recognized by the UN or Western countries, the donors of UN funds, despite the fact that it was this government which ended the suffering and genocide perpetrated by the Khmer Rouge regime […] 8.5 million Cambodians living under the Hun Sen regime continued to be punished by the world community (p. 273).

The United States prohibited aid from entering Cambodia while the Vietnamese remained in control of the government. In the international political arena, the United States and China rejected the Vietnamese-backed government and recognized the Khmer Rouge, which continued to occupy a seat in the United Nations.

The United States' involvement in Cambodia since the late 1960s paved the way for the Khmer Rouge to come to power, beginning with the secret aerial bombings on Cambodian land. The origin of the covert American bombing is believed to be 1965 under the Johnson administration. It is believed that there were 2,565 sorties into Cambodia from 1965 to 1968, with 214 tons of bombs (Owen and Kiernan, 2006). From 1969 to 1973, the Nixon administration dropped over 500,000 bombs and landmines on Cambodia and illegally deployed troops over its border, without notifying the US Congress (Conachy, 2001). There were two political reasons why the US bombed Cambodia in the early 1970s—rooting out the North Vietnamese troops in Cambodian soil and protecting the Lon Nol regime from the Cambodian communist forces (Owen & Kiernan, 2006). As Conachy (2001) states, the American bombing caused more than 700,000 Cambodian deaths and left about a third of the population homeless. Due to economic slowdown, corruption in the government, general upheaval of the political situation, and the withdrawal of the US forces, the CIA-installed Lon Nol government was overthrown by the Khmer Rouge guerillas in 1975 (Conachy, 2001), leading the way for Pol Pot to come to power.

The existence of conflict and the limiting of peace in Cambodia were further caused by Beijing's two-track foreign policy. They supported the Khmer Rouge, believed them to be well-furnished, as shown by the overthrow of Lon Nol, and recognized Prince Sihanouk as the leader of Cambodia (Hood, 1990). Beijing continued to support the Khmer Rouge even after it was completely conquered by the Vietnamese troops in early 1979. In 1984 Vice Premier Deng Xiaoping said of backing the Khmer Rouge: "I do not understand why some people want to remove Pol Pot…it is true that he made some mistakes in the past but now he is leading the fight against the Vietnamese aggressors" (Chanda, 1984, p. 30). Xiaoping continued to sustain the Khmer Rouge by asserting that "There are no two ways to go about solving the Kampuchea problem. The Vietnamese aggression, invasion, and occupation of Kampuchea cannot be justified or forgiven. We must fight and keep fighting the Vietnamese until they are beaten and forced to evacuate your country completely and permanently" (Norodom Sihanouk, 1979, p. 109).

The Cold War conflict against the Soviet Union and Vietnam by China and the United States reflected their own political strategies, but both involved sustaining the Khmer Rouge. Following the collapse of the Khmer Rouge regime in 1979, the Pol Pot government was still recognized by the United States, China, and the European states as the only legitimate government of Cambodia (Conachy, 2001). Not only did these governments delay justice for Cambodian victims, but they also continued to sponsor the Khmer Rouge forces to fight against the Vietnamese-installed government.

In the diplomatic arena, most of the world followed the United States and China in their sponsorship of the Khmer Rouge in the 1980s. There is evidence that, in addition to the large supply of weapons, China supported the Khmer Rouge with US $100 million per annum (Kiernan, 1993). From 1979 to 1986, US $85 million was given to the Khmer Rouge by the US (Kiernan, 1993). Also, from 1979 to 1991, arms and munitions were provided by the European governments, lead by Britain (Jennar, 2006). Subsequently, US military support for the Khmer Rouge guerillas remained unchanged despite the Vietnamese withdrawal from Cambodia in 1989 (Chigas, 2000).

United Nations agencies also went along with US and Chinese support for the Khmer Rouge (Kiernan, 1993). It is reported that the aids sponsored by the United States and the international community were channeled to the Khmer Rouge through Thailand. For instance, US $12 million worth of food was passed by the World Food Program through Thailand to the Khmer Rouge (Kiernan, 1993).

Loopholes in the Statute and the Challenges of the Extraordinary Chambers in the Courts of Cambodia: Can Justice be Served?

After the 1993 Cambodian elections, the United States actively encouraged the new government to bring those involved with the Khmer Rouge to justice, and played a lead role developing the Cambodian Genocide Justice Act in 1994 to collect information regarding the crimes committed under the Democratic Kampuchea and encourage the establishment of a tribunal to prosecute the Khmer Rouge. However, being aware of its involvement with the Khmer Rouge, the United States limited their accountability by suggesting the following statement for the Genocide Act: "Consistent with international law, it is the policy of the United States to support efforts to bring to justice members of the Khmer Rouge for their crimes against humanity committed in Cambodia between April 17, 1975 and January 7, 1979" (Chigas, 2000). Furthermore, not only has the United States declined to be a member of the International Criminal Court (ICC), but they compelled the parties of ICC to ratify an accord under Article 98, exempting American personnel from being sentenced. This agreement was endorsed by the Cambodian government on 3 October 2003, as negotiated by US Secretary of State Colin Powell (Fawthrop & Jarvis, 2005).

Encouraged by Thomas Hammarberg, the UN Secretary-General Special Representative for Human Rights in Cambodia, the co-prime ministers, Norodom Ranariddh and Hun Sen, sent a letter requesting UN assistance in creating a tribunal to Secretary General Kofi Anan. However, the enquiry was rejected and no interest was shown by China, the United States, or the United Kingdom when it was forwarded to the Security Council (Henkin, 2001). The negotiation had been delayed until both parties, the Cambodian government and particularly the UN, agreed upon the fact that they both will not be indicted for their involvements with the Khmer Rouge, which is clearly stated in the Article 2 of the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia that:

Extraordinary Chambers shall be established in the existing court structure, namely the trial court and the supreme court to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.[4]

This means that all those who supported and sustained the Khmer Rouge, and anyone who is not considered "most responsible" for the killings that occurred during the Democratic Kampuchea will not be indicted and they are able to get away with their crimes.

The Extraordinary Chambers in the Courts of Cambodia (ECCC), popularly known as the Khmer Rouge Tribunal, is a hybrid court. Unlike the trials in Sierra Leone, Kosovo and East Timor, this trial was established under a memorandum of understanding between the Cambodian government and the United Nations. According to the law of the establishment of the ECCC, the crimes to be indicted in the ECCC are the crimes against humanity, war crimes and genocide under Cambodian law. The March Agreement is a highly risky approach to criminal prosecution and is quite different from "the international standards of justice" established by the international community to prosecute the crime committed by the Nazis during World War II (Luftglass, 2004).

Under the Chapter I, Article 1 to 8, of the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecutions of Crimes Committed during the Period of Democratic Kampuchea, the temporal jurisdiction is limited only to the period between 17 April 1975 and 6 January 1979. Article 2 of ECCC statute under the Chapter II entitled Competence amended in 2004 states that:

Extraordinary Chambers shall be established in the existing court structure, namely the trial court and the supreme court to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

With this limiting language: "senior leaders of Democratic Kampuchea and those who were most responsible…from 17 April 1975 to 6 January 1979", the court's temporal jurisdiction, territorial jurisdiction, and personal jurisdiction are not thoroughly defined.[5] The language here clearly indicates that the Khmer Rouge cadres who did not hold senior positions during the established period are also out of the jurisdiction of the court, the crimes that took place before and after the given period are not within the jurisdiction of the court, and the territorial jurisdiction of the court is limited only to the territory within Cambodia, not expanded beyond this, which means that some of those involved with the Khmer Rouge are not within the authority of the court.

Moreover, the court is empowered to render a judgment against the senior leaders and those "most responsible" only. Since Pol Pot (Known as "Brother Number 1"), prime minister of the Democratic Kampuchea, and Ta Mok, Chief of General Staff of Revolutionary Armed Forces of Democratic Kampuchea, died in 1998 and 2006 respectively, the prime defendants brought to trial are Kaing Khek Iev (Known as "Duch"), the commander of the infamous prison Tuol Sleng prison (known as "S-21") in Phnom Penh, Khieu Samphan, former president of the Democratic Kampuchea, Nuon Chea, former Brother Number 2, and Ieng Sary, the foreign minister of the Democratic Kampuchea. Taking advantage of these limitations, some figures in the Cambodian government, the United States, China, and some others involved with Khmer Rouge before and after the given period will be free from prosecution and get away with their own crimes. This is clearly at odds with former UN Secretary-General Kofi Annan statment that "impunity is unacceptable in the face of genocide and other crimes against humanity" (as cited in Brophy & Beigbeder, 2005, p. 131).

There is also a problem in Article 14 of Chapter V entitled "Decisions of the Extraordinary Chambers" of the Law on the Establishment of the ECCC: the supermajority formula of the tribunal. Article 14 states that:

The judges shall attempt to achieve unanimity in their decisions. If this is not possible, the following shall apply: a decision by the Extraordinary Chamber of the trial court shall require the affirmative vote of at least four judges; a decision by the Extraordinary Chamber of the Supreme Court shall require the affirmative vote of at least five judges. When there is no unanimity, the decision of the Extraordinary Chambers shall contain the opinions of the majority and the minority.

Article 9, under the Chapter III entitled "Composition of the Extraordinary Chambers" of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, dictates that the Trial Chamber be composed of five judges, three Cambodian judges and two foreign judges, and the Supreme Court Chamber consisted of seven judges, four Cambodian judges and three foreign judges. Cambodian judges outnumber foreign judges, unlike the mixed tribunals in both East Timor and Sierra Leone in which the foreign judges are in majority. This supermajority formula might be risky to the due process of the trial as the political manipulation of the Cambodian government might interfere with the verdict of the court. With these approved Articles, if the judgment is based on a three-two ratio from the Trial Chamber and four-three ratio from Supreme Court Chamber, there would be no final decision from the ECCC; thus, the defendants might be able to be free, and justice would not be served.

Another reason that the Khmer Rouge Tribunal does not meet the international standards of justice is the scarcity of competent domestic judges, prosecutors and investigators. Put simply, Cambodian judges, prosecutors, and investigators lack the appropriate legal education and experience in international criminal law to deal with such high level cases (Menzel, 2007). The Cambodian judicial system, moreover, has been manipulated by the Cambodian government and is widely viewed as corrupt and fragile due to the close ties between Cambodian judges and the government. The Cambodia director for Human Rights Watch, Sara Colm, comments that "What you have seen is the government selecting some of the worst choices from the Cambodian judiciary. Some of those who have been appointed are notorious for presiding over show trials and have track records of acting based on political instructions instead of evidence" (Faiola, 2007, February 2). In an interview conducted with Cambodian survivors, Ramji (2000) argues that:

A domestic trial obviously relies on a functioning and impartial judiciary. Cambodia has never seen an impartial and independent judiciary, and most legal experts were murdered by the Khmer…In a striking display of unanimity, everyone of the interviewees stated that a trial could not be held in Cambodia because the judiciary is too corrupt and weak (p. 141).

Together, government influence, a weak judicial system, and a lack of competent judges, prosecutors and investigators, ensure that the trial can only result in injustice.

Conclusion

The Khmer Rouge Tribunal is failing, due to the three-decade delay in establishing the tribunal and the shortcomings in the March Agreement and Law on the Establishment of the ECCC. In order to meet international standards of justice, the limiting language and the temporal and territorial jurisdiction stated in the statutes of the ECCC should be amended and broadened respectively. The limiting language should be amended beyond the scope of "senior leaders of the Democratic Kampuchea and those who were most responsible for the crimes…" to include those, both insiders and outsiders, who were involved with the Khmer Rouge, and responsible for the atrocities. The temporal jurisdiction should be extended to the period before and after the Khmer Rouge regime, from the genesis and the rise of the Khmer Rouge in the late 1960s, to the total demise of the Khmer Rouge in 1998. The territorial jurisdiction should be expanded beyond Cambodia since there were other countries involved with the Khmer Rouge, such as the United States, China, and some European governments, especially Britain.

From the outset, the ECCC, as is defined by its statute, has not given the Cambodian victims any definite hope for justice. It is a cheerless prospect that even if the tribunal was successful, and prosecuted the senior leaders and those who were most responsible during the Democratic Kampuchea, justice will have been served only on a symbolic level. Such a weak trial is already underway and there is a possibility it will be launched again. This means that any justice served by the Khmer Rouge Tribunal will exist only in the shadow cast by the unhealed trauma to the Cambodians victims, and no meaningful reconciliation or positive peace will ever be reached.

[1] The letter sent by both prime ministers reads "…We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance [to] be given to Cambodia. Cambodia does not have the resources or expertise to conduct this very important procedure…We believe that crimes of this magnitude are of concerns to all persons in the world, as they greatly diminish respect for the most basic human rights, the right to life. We hope that the United Nations and the international community can assist the Cambodian people in establishing the truth about this period and bringing those responsible to justice. Only in this way can this tragedy be brought to a full and final conclusion…" (Klein, 2006, p.555).

[2] See the report of the group of experts for Cambodia established pursuant to General Assembly resolution 52/135 downloaded from http://www.unakrt-online.org/04_documents.htm

[3] Tuomi (1983) asserted that the documents regarding humanitarian aids in Cambodia are not all available.

[4] See the law on the establishment of the extraordinary chambers in the courts of Cambodia at http://www.eccc.gov.kh/english/law.list.aspx

[5] Morrison (2008) classified court's jurisdiction into subject-matter jurisdiction, temporal jurisdiction, territorial jurisdiction, and personal jurisdiction.