Global Policy Forum

By Sebastian Strangio

The West is turning the trial of surviving members of the Khmer Rouge - its former allies - into a piece of self-promoting political theatre. For nearly three decades, Cambodians have lived under the shadow of Pol Pot's 'Democratic Kampuchea', a regime whose policies during 1975-79 turned Cambodia into a 'land of blood and tears' - a vast agrarian social experiment that enslaved the population and led to the deaths of an estimated 1.7million Cambodians.

In the years since, no senior leaders of the Khmer Rouge have been punished for the atrocities of Pol Pot's regime. But time may finally be catching up with the surviving Khmer Rouge. Following six years of acrimonious negotiations between the UN and the Cambodian government, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in 2006, with the hope that 'the senior leaders of the Khmer Rouge and those most responsible for serious crimes [would now] be held accountable for their crimes' (1). A number of prominent ex-Khmer Rouge, including Nuon Chea, Khieu Samphan and Ieng Sary, have been arrested and are scheduled to enter the dock in the coming months.

But for all its high-minded rhetoric, it's unclear whether the ECCC will be able to deliver the 'justice' it is promising. The 'mixed' (joint UN-Cambodian) tribunal is beset by ballooning budgets and legal red-tape, and the proceedings are crawling along at a glacial pace. Last month, the ECCC revised its budget upwards to $169.7million - up from an original $56.3million - and pushed back its expected finishing date until the end of 2011. Even compared to other international tribunals, which have numerous problems of their own, justice for Cambodia isn't coming cheap. The hybrid UN tribunal in East Timor had an initial budget of just $6million, while the court in Bosnia & Herzegovina is currently trying 400 defendants on a relatively frugal $10million per year (2). So far, just five defendants have been arraigned by the Phnom Penh court - at an ultimate cost of nearly $34million each - and it has yet to move beyond a series of lengthy pre-trial appeals.

However, since the trials are expected to last at least until 2011, there's every chance that the defendants will be dead before the ECCC has a chance to hand down its verdict. Pol Pot - 'Brother Number One' - evaded justice by dying in mysterious circumstances in April 1998. In 2006, the one-legged Ta Mok - nicknamed 'the Butcher' for his ruthless purges - died in prison. Of the current defendants, ex-head of state Khieu Samphan suffered a stroke on the eve of his arrest in November last year (3), and Ieng Sary, Pol Pot's foreign minister, was admitted to hospital on 4 February this year with heart problems (4). With such frail defendants in the dock, speed and efficiency are clearly of the essence.

But if the tortuous gestation of the ECCC is anything to go by, justice may once again elude Cambodia. Indeed, like other international war-crimes tribunals, the ECCC is marked by power politics, political obfuscation and Western grandstanding. In the years following the deposition of the Khmer Rouge by the Vietnamese army in January 1979, few nations outside the Soviet bloc paid any attention to the evidence of Khmer Rouge atrocities. According to the cruel dictates of Cold War realpolitik, many governments - including the United States, Britain, Australia, Singapore and China - aided and abetted the bloody Khmer Rouge insurgency against the new Soviet-backed Phnom Penh government. In September 1979, the UN voted to retain Khmer Rouge representation in the General Assembly, a post the Khmer Rouge occupied until 1991. Meanwhile, Western relief funds flowed to the Coalition of the Democratic Government of Kampuchea (CGDK), a corrupt Khmer Rouge-dominated resistance front, which, as one analyst wryly pointed out, was 'neither a coalition, nor democratic, nor a government, nor in Kampuchea' (5). By a dark twist of irony, international funds intended to rebuild the Cambodian state flowed to those most responsible for destroying it.

In the 1980s, journalist John Pilger uncovered evidence that British special forces had offered covert assistance to the CGDK, training Khmer Rouge troops in '[land] mines technology' for use in the ongoing civil war (6). The United States - whose intensive bombing of areas with communist bases during 1969-73 arguably did much to bring Pol Pot to power - pursued a 'hands-off' policy, turning a blind eye to China's continuing support of the Khmer Rouge and the shady activities of the Thai military, which gave its protection to Khmer Rouge top-brass throughout the 1980s and 1990s (7).

With the end of the Cold War and the onset of a UN-brokered peace agreement, Cambodia emerged as the darling of the international NGO community - an 'aid market' and developmental blank slate upon which lingering guilt over the West's connivance in Cambodia's civil war could conveniently be expiated (8). Free of the paralysing polarities of the Cold War, many Western governments now argued that the time was right for the trial of the Khmer Rouge leadership. In July 1997, Cambodian co-prime ministers Hun Sen and Prince Norodom Ranariddh requested UN aid in establishing a tribunal to bring the remaining Khmer Rouge to justice. The ensuing negotiations, however, demonstrated just how far local and international notions of 'justice' diverged.

The Cambodian negotiators consistently argued that the trials had to take place firmly within the context of Cambodian sovereignty and involve a majority of local judges and prosecutors. Many in the international community, on the other hand, expressed fears that a trial conducted in Cambodia's court system, and under Cambodian law, could never deliver a 'fair' and 'transparent' verdict. NGOs such as Human Rights Watch and Amnesty International criticised the weakness of the Cambodian judiciary, which was (and still is) more or less subordinate to the ruling Cambodian People's Party (CPP). The UN negotiating team, led by Hans Corell, the head of the UN Office of Legal Affairs, steadfastly argued that any tribunal had to be composed of international judges and prosecutors, and preferably conducted in a location outside the country (such as The Hague). At several points, the condescending attitude of the UN towards the Cambodian government threatened to derail the Khmer Rouge tribunal altogether. In February 2002, Corell withdrew from the negotiations, infuriated by the 'obfuscation' of the Cambodian negotiators. The resulting deadlock prolonged the formation of the ECCC by nearly a year.

Even when a final agreement on the hybrid tribunal was signed in June 2003, it came under fire from Western human rights NGOs for 'falling short' of international standards of impartiality and justice. Due to the 'precarious state of Cambodia's judiciary', Amnesty International argued, the UN General Assembly should 'make the improvements necessary to bring [the tribunal] agreement into line with international laws and standards' (9). For Amnesty, no trial was preferable to a 'flawed' one - a noble sentiment, perhaps, but one that disregarded political constraints, not to mention the advanced age of most of the defendants.

Western guilt has seemingly given birth to the idea that any legitimate trial must be conducted by the West on Cambodia's behalf. Some human rights activists would undoubtedly prefer a trial within the legal vacuum of The Hague, shorn of the 'difficulties' of dealing with the corrupt and 'inexperienced' Cambodian legal system. But if the trials are to finally bring justice to Cambodia and heal the wounds of war, Cambodians must have ownership of the process. It's their future - not the West's - that is at stake. As American lawyer Gregory Stanton has argued, the real 'enemy of justice' in Cambodia is a well-meaning but misdirected legal purism, which, if heeded, would only give succour to Cambodia's culture of legal impunity (10). Clearly, some degree of justice is better than none at all.

NGOs and Western governments are right to complain about the corruption of Cambodia's judiciary. But the impartiality of the current tribunal is equally questionable: under the close scrutiny of the international community, eager to see 'justice' done, the pressure on the ECCC to reach the expected 'guilty' verdict will be enormous. Dutch lawyer Victor Koppe, ex-Khmer Rouge ideologist Nuon Chea's defence counsel, is right to ask whether a presumption of guilt is built into the political architecture of the ECCC. 'The [main] question', according to Koppe, 'is whether or not everything in this tribunal is institutionalised in such a way that only guilty verdicts can come' (11).

He has a point. The ECCC's claim that 'fair trials will ease the burden that weighs on the survivors' (12), is pregnant with assumptions, not least of which is the presumption of guilt. And this raises a further question: how would the surviving victims of the Khmer Rouge react if the defendants - widely acknowledged as responsible for crimes against humanity while in power - were to be acquitted by a fair and impartial court? Seen in this light, the ECCC and its international backers seem less concerned with justice - in the sense of fair and equal treatment before the law - than with stage-managing an elaborate piece of political theatre.

The ECCC graphically demonstrates the problems in using 'justice' to achieve social or political aims, whether they be 'resolution' for the Cambodian people or local judicial reform. But true justice is more than a public relations exercise. Any war-crimes tribunal that is yoked to a political agenda, however noble or high-minded, is of questionable legitimacy. In this context, the legal purism of the UN and human rights NGOs starts to look less like a concern for the quality of the trial process and more like a case of Western vanity and self-aggrandisement again delaying the arrival of justice in Cambodia.

For all its hype, the UN-backed tribunal process is yet to deliver any tangible results, and whether it will manage to beat the remaining Khmer Rouge leadership to the grave is increasingly uncertain. But as the clock runs down, any measure of justice, even if it is not the 'sanctioned' justice of the international community, is surely better than the impunity of the present.

(1) FAQ: Extraordinary Chambers in the Courts of Cambodia

(2) ECCC wants $167 million for more staff, Phnom Penh Post, Issue 17 / 02, January 24 - February 7, 2008

(3) Former Khmer Rouge leader suffers stroke prior to arrest, International Herald Tribune, 14 November 2007

(4) Ex-Khmer Rouge leader Ieng Sary still in hospital, Phnom Penh Post, Issue 17 / 02, January 24 - February 7, 2008

(5) John Pilger, 'Return To Year Zero', Distant Voices, p.182

(6) John Pilger, 'Return To Year Zero', Distant Voices, p.191-3

(7) Tom Fawthrop & Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal, p.59

(8) Grant Curtis, Cambodia Reborn? The Transition to Democracy and Development, p.72

(9) Amnesty International's position and concerns regarding the proposed Khmer Rouge tribunal, Amnesty International, April 25, 2003

(10) Gregory Stanton, Perfection is The Enemy of Justice

(11) Khmer Rouge victim confronts regime leader in court, The Age, 8 February 2008

(12) FAQ: Extraordinary Chambers in the Courts of Cambodia