Global Policy Forum

Cambodia: What Next for the Extraordinary Chambers?

What constitutes success in prosecuting war crimes?  While "justice" is the automatic response, legal justice may differ considerably from justice as conceived by victims of war crimes.  Courts that prosecute war crimes, such as the Extraordinary Chambers in the Courts of Cambodia, must satisfy these dual concepts of justice to be successful and credible.  Legal justice requires procedural standards, such as due process.  The peoples' justice, however, depends on the context in which the crimes were committed and providing closure for victims.  For example, it may be satisfied by public acknowledgment that a wrong was committed, or when the people perceive that perpetrators have been punished appropriately.

By Jessica Winch

October 29, 2010

When Reach Sambath speaks on Radio Free Asia, listeners sometimes ask how putting five people on trial can represent justice for the estimated two million Cambodians who were killed by the Khmer Rouge. As head of Public Affairs at the United Nations-backed tribunal in Phnom Penh, Sambath has an answer prepared for this question.

"I ask them: Have you ever offered food to your ancestors? And everybody says, 'Yes!'" he says. "Then I ask how many ancestors they have. 'Hundreds,' they reply. How many chickens do you offer? 'One.' How many bowls of rice? 'Two.' And I say, do you think that's enough to feed all your ancestors?"

"We are moving forward through justice," he added. "It's not 100 per cent and this is what we have to explain".

Officially established in 2006, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal's official title, is tasked with prosecuting senior regime leaders and those "most responsible" for Khmer Rouge crimes between 1975 and 1979. A quarter of the population died from starvation, disease, torture or execution under the radical Communist regime.

The tribunal released its first verdict in July this year, sentencing Kaing Guek Eav, alias Duch, to 35 years in prison for war crimes and crimes against humanity. Duch, now 67, commanded Khmer Rouge prison S-21, where more than 15,000 Cambodians were tortured and killed as enemies of the regime.

On September 16 the tribunal moved another step forward, indicting four former leaders of the Khmer Rouge. The defendants are Khieu Samphan, 79, former head of state; Ieng Sary, 84, former foreign minister; his wife Ieng Thirith, 78, ex-minister for social welfare; and Nuon Chea, 84, the party's deputy secretary who was known as Brother No.2 - second to Khmer Rouge leader, Pol Pot, who died in 1998.

The four deny all the charges that have been levelled against them, including war crimes, crimes against humanity and genocide, alongside charges of murder, torture and religious persecution under Cambodian law. They have been in custody since late 2007, and are expected to stand trial in the middle of next year.

One of the many challenges facing the tribunal is managing expectations of what it can and should achieve. In Banteay Meanchey province in northwest Cambodia, villagers have varied expectations of the court and share different conceptions of justice. "I believe I can receive justice from the court," said Pan Chhuong, 63. "During the Khmer Rouge regime people suffered differently. But I think they all want justice in the same way. Justice is revealing who the real killers are".

University student Phan Lina believes that "justice means the crime is tried by the court...that the punishment will balance what has been done." For student Chou Chakriya, "justice is the process of finding the truth, allowing us to know what really happened".

Many Cambodians would be satisfied if the four leaders currently in detention were simply brought to trial. Ul RThany, 48, said: "The Khmer Rouge cadres who killed in my village were mostly killed themselves in party purges. Today there are still some low-ranking cadres in the village, but they can stay: they are locals and treated people well. We...can forgive them." In southern Cambodia, fisherman Kong Chhoy, 49, agreed. "The tribunal will bring justice for the Cambodian people, and for me and my family," he said. "If the four leaders are tried, that is enough justice for me".

"Everyone has their own conception of justice," explained Daravuth Seng, former international director for the Center of Justice and Reconciliation in Cambodia. "When we talk about justice being brought to post-conflict nations, it's generally restricted to legal or judicial justice, and the judicial processes often do not reach the majority of people.

"Understanding that legal justice is not the people's perception of justice is important," he continued. "I think legal justice is due process resulting in a verdict, so that at least it's on record that this was done. That is a very important statement that the international community, humanity, needs to put down".

Anthony Dworkin, a human rights and international law expert at the European Council on Foreign Relations, agreed on the importance of procedural fairness for the tribunal's legitimacy and legacy. "For the court to be successful," said Dworkin, "it has to meet the minimum standards of due process. The internal processes have to be credible, and the way that decisions are reached and trials are conducted, the way that verdicts are reached - all of that has to reach standards of due process. The most important thing is to have a public acknowledgement of their guilt, of individual responsibility, and an accurate account of what happened so that it's no longer of dispute but historical record".

So far, judicial decisions and legal proceedings at the court appear to have met international standards. The Open Society Justice Initiative (OSJI) published a report at the close of Case 001 in November which stated the court has established the necessary physical, technical and staff structure to "conduct a fair and sophisticated trial." International observers noted the Duch verdict was broadly in line with precedent from other international tribunals and upheld standards of international law.

However, the tribunal's credibility has been under threat in other ways- it has been facing accusations of corruption and government interference. Cambodian Prime Minister Hun Sen has openly opposed investigating any further suspects and six high-ranking government officials have declined a request for testimony, a move which led the defence teams of Nuon Chea and Ieng Sary to allege political interference in court proceedings. In a recent appeal on this issue, the international judges on the Pre-Trial Chamber submitted an impassioned plea for an internal investigation. The three Cambodian judges deemed an investigation unnecessary, meaning the Pre-Trial Chamber could not rule. For now, the attempt to summon the six witnesses fails and long-festering allegations of political interference by the Cambodian government remain unresolved.

Another challenge facing the tribunal as it approaches the second trial is managing civil party participation. The idea of civil party participation is transposed from Cambodian law, and gives victims the right to participate directly in court. They are also entitled to "moral and civil reparations", which could range from memorials to educational centres. There were 94 civil party applications for Case 001, but the scope of Case 002 is far broader - the court received over 4,000 applications. Of these, just over half have been declared admissible by the judges.

The involvement of civil parties during the Duch trial caused delays and drew some legitimate complaints from judges and prosecutors. However, by the end of the trial there was unanimity on the importance of civil party participation. "It achieved a lot of resonance in Cambodian society," said Paul Oertly, deputy chief of the Victims Support Service. "The civil parties were speaking for themselves, describing their own suffering, and this was very dramatic".

However, the reparations awarded by the court were "relatively meaningless," according to Heather Ryan, a tribunal monitor for the OSJI. Requests for reparations including medical care for victims and a commemorative plaque at S-21 were not granted. Instead, the judges ruled that a record of Duch's statements of confession and apology would be posted on the tribunal website, along with the names of approved civil parties. Twenty-four civil party claims were ruled inadmissible when the verdict was handed down, after the individuals had already taken part in trial proceedings.

The judges noted in their decision that they were "constrained" by rules governing reparations. A recent amendment to the rules, whereby projects can now be funded by donors, should generate more flexibility when reparations are awarded in future trials. As they stood previously, the rules required the costs of reparations to be borne by the accused, which would prove difficult in Case 002 since all four defendants have been declared indigent.

For Case 002, the court is appointing two lead lawyers to represent the interests of civil parties at trial, while civil party lawyers continue to work directly with groups of victims. Pich Ang, a civil party lawyer who was previously a lecturer at the Royal University of Law and Economics, was selected as national lead co-lawyer for civil parties on September 1. "It was presentation of the collective victim interest that was missing from Case 001," said Oertly, "and with 40 times as many civil party applications this new mechanism was seen as the way forward. Of course it relies on good faith and a good relationship with the civil party lead co-lawyers and the civil party lawyers, but we have no reason to believe that won't be possible".

Some court observers are concerned about the court's treatment of civil parties. "Case 001 was messy and repetitive, and there was definitely a need for change," said Anne Heindel, legal advisor to the Documentation Center of Cambodia, which records Khmer Rouge atrocities. "But to my mind, the victims involved are no longer civil parties. They have no ability to put forward pleadings, no direct contact with the co-lawyers. They still have a role in the trial process, but not the active involvement of a civil party.

"This court has shown that civil party participation does not work in mass crimes," Heindel continued. "And by focusing just on civil parties, they are ignoring society in general".

Alex Hinton, executive director of the Center for the Study of Genocide, Conflict Resolution, and Human Rights at Rutgers University, New Jersey, said: "I think what they've decided, while disappointing to some people, makes sense assuming that the two co-lawyers will be strong advocates for the civil parties".

"It is not possible to have 4,000 civil parties represented in court. But I would call them civil parties, and think about the opposite - not having any civil party representation. I think that people will still see that it is important and a good thing".

Meanwhile, local non-governmental organisations are working on their own initiatives that enhance court outreach and aim to promote reconciliation. Among other projects, the Documentation Center of Cambodia (DC-Cam) began publishing a secondary school textbook in 2009. It is the first opportunity for students to study the regime in school.

DC-Cam Director Youk Chhang said: "We started thinking about the textbook in 1996. It came a couple of years after we started pushing for a tribunal. Because [establishing the tribunal] was so difficult, we thought of what would be a parallel to see justice, so we thought about teaching children".

So far 300,000 copies of the textbook have been distributed throughout Cambodia and there are plans to publish 700,000 more. DC-Cam has also established a series of teacher training events. Author Khamboly Dy said: "It's important that all teachers are equipped with new methodologies, so they can guide students away from anger, from hate, from revenge. The objective is to bring about national reconciliation. The stories of both victims and perpetrators will be brought to the classroom, discussed and debated, so children from both sides can try to find common ground which they can stand on and walk on together to the future".

Adhoc, a human rights organisation in Phnom Penh, has run a nation-wide programme of training sessions and national workshops to raise awareness among Cambodians of the ECCC. So far over 100,000 men and women have taken part.

The Center for Justice and Reconciliation is currently helping a local community build a learning centre at Wat Samroung Khnong, with start-up funding from the Australian Embassy. "The site is significant for a myriad of reasons," said former director Daravuth Seng. "Over 10,000 people were executed at Wat Samroung Khnong by the Khmer Rouge, and the site is part of Case 002 investigations at the tribunal. The pagoda is also a UNESCO-recognised architectural site. The Community Learning Center is really inspiring as it's one of the few projects that have been made possible by the community coming together to memorialize the past, educate the future, and begin the reconciliation process".

According to Youk Chhang: "The court legitimises the genocide education, the forums, the theatres, museums and other things. You take your own territory."

The ECCC is beginning to plan its own legacy for Cambodia beyond the boundaries of the courtroom. Lars Olsen, legal advisor at the ECCC, said: "The knowledge acquired by these proceedings must be freely available, first and foremost to the people in Cambodia but also, to the extent that it is relevant, to the international community." A virtual court is being established with the University of California and the East-West Center in Honolulu, where people from all over the world can access court documents and videos. Officials also mention establishing information centres in Cambodia where locals can access material related to the proceedings.

However, according to Olsen, "one of the main goals, if you look at the will of the creators of the court, the government and the UN, would be that this court should have a positive influence on the judiciary in Cambodia and this is where we still have things to do".

"Things are already happening," he continued. "The very existence of this court is a training camp for Cambodian judicial officials".

"The Khmer Rouge essentially destroyed the legal profession. Lawyers, judges - all were murdered. It was part of this tragedy", said Andrew Cayley, international prosecutor at the ECCC. "So I would hope our legacy would be to leave the national side with a renewed sense of professional conduct and ethics, also international standards - all of those things which they had in 1975 but which vanished when the Khmer Rouge came to power".

Cayley believes this judicial training process can already be seen at the ECCC. Youk Chhang, from DC-Cam, agreed. "It is happening," he said, "especially in the OCP [office of co-prosecutors]. I work with them closely...I think it is too soon to indicate the success but they are really sharing and they always come as a team. So they learn from each other."

The tribunal also acts as an example to the millions of Cambodians who follow the proceedings. "There is a lot of potential for education," said Daravuth Seng. "Unless you see it working properly, it's very hard to envision something other than what you have."

Richard Rogers, head of Defence Support, gave one example: "This court has shown that defence lawyers can be on the same level as the prosecution," he said. "Just the idea of having a defence is a huge psychological change for the Cambodian people. You've only got to export some fairly basic ideas and you can improve the local justice system and leave a positive legacy." But there is little indication so far that improved judicial experience and public knowledge is improving the notoriously corrupt domestic court system.

According to Heather Ryan, this has more to do with a lack of political will for significant judicial reform than the ECCC itself. Having said that however, she says that so far the court has taken very few proactive steps to ensure lessons are passed on. Ryan believes that the ECCC could engage more directly with domestic courts, for example, by organising regular meetings with the bar association to discuss various issues from legal jurisprudence to court management. They could also develop material on issues such as pre-trial detention and work with Cambodian legal training centres.

Court officials say plans are being drawn up to target the legal community. "That would definitely be an important legacy of the court, if we can actually use our skills to build general capacity," said Olsen. "We are working on it."

The ECCC also plays an important role representing one of the few examples of a largely national effort to bring people to trial for mass atrocities. "There is no other court in the world where nationals are basically doing it themselves together with technical assistance from people with international experience," said Cayley, "and I think that's extremely important. It gives the process an immediate degree of local credibility which the ad hocs, the Rwanda and the Yugoslav tribunal, and also the ICC [International Criminal Court], never had and don't have today...this type of court, for all of its problems, at least enjoins the locals in the process."

Lars Olsen agreed. "I think the experiences from this court have shown that [trials of this nature], when conditions allow for it, will benefit hugely if the proceedings are held in the country where the crimes were committed," he said. "And I think that is a legacy from the court. You have unprecedented public participation and you can't ignore it. This is the only court of this kind - with the slight exception of Sierra Leone - which enjoys massive support among the people in the country where the crimes were committed."

The ECCC has also set another precedent in that victim participation in the proceedings so far is unmatched by any other international or hybrid war crimes court: the public gallery at the courtroom has a 500-seat capacity, considered the largest in the world. The Duch trial generated significant local interest, with over 30,000 Cambodians having personally attended a portion of Duch's trial, and millions more viewing at least part of the hearings on television.

There are fears that this level of interest may wane in the coming months. Many Cambodians were disappointed with Duch's sentence of 35 years in prison, which amounts to less than 20 after deducting the 11 years already served and five years compensation for previous illegal detention. The defendants in Case 002 are denying any guilt and - unlike Duch - may not provide much testimony to the court room. These two factors combined may serve to significantly reduce public interest in future cases.

To add to its existing challenges, the tribunal is currently facing a $46 million shortfall over the next two years. According to Heather Ryan, donor fatigue has become a major problem, and could result in staff cuts. There is also ongoing debate between international and national staff over whether to pursue an investigation of five more suspects.

Much of the court's judicial success can only be determined in the coming months and years. The next trial will be far more challenging and, given the higher rank of the defendants, its result will be even more important to Cambodians. The long-term goals of the ECCC and organisations such as the Center for Justice and Reconciliation - such as leaving a positive legacy, reconciliation, and healing - are worthy ideals but difficult to measure in real terms.

According to Anne Heindel, victim participation will have the biggest impact on the future legitimacy of the ECCC. "The tribunal has been dodging political allegations from the start, but their involvement of civil parties has gained them a lot of ground," she said. "The ultimate success of the tribunal depends on how invested victims feel in the process."

Meanwhile, Reach Sambath fields questions. "Old people, they ask questions about history," he added. "Young people, they ask simple questions. For example, when we explain the Khmer Rouge killed all educated people, they say: 'But Khieu Samphan had an Economics PhD. Why didn't he kill himself?' This is the best part of my work. But I sweat - for two hours straight you cannot stop. I always take a tissue, and the students laugh at me. This is a symbolic court," Sambath concludes. "It's not 100 per cent justice, it's symbolic. But it works. If you had no trial at all, what would you think? How could you answer to your children?"


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