As anybody following Southeast Asia has probably heard, the Khmer Rouge Tribunal has sentenced Duch to 30 years imprisonment (reduced by 11 years for time already served) for his role in the Khmer Rouge genocide. This is significant less because of the result (Duch essentially confessed his guilt), but rather for the fact that it was actually reached. After all, 30 years is not a particularly heavy sentence for genocide, but it reflects the first time a KR leader has been sentenced by a court with some semblance of legal legitimacy.
In a recent East-West Center Asia-Pacific Bulletin (published before the Duch verdict), Kheang Un and Judy Ledgerwood discussed the KRT and some of its implications for Cambodia. On the public awareness front, the KRT seems to have had some success. According to a 2009 DC-Cam survey, 92.7% of interviewees strongly supported the tribunal, up from 69% an IRI survey the previous year. The author’s credit television programs such as the British-sponsored Duch on Trial and other outreach.
However, Duch’s case was the low-hanging fruit of the KRT process. Despite a last-minute plea for mercy, he essentially cooperated with the court and confessed his crimes (and the trial was still very expensive). The KRT has a mandate to try at least four more other KR leaders, none of whom has taken Duch’s conciliatory approach. As such, it’s unclear how successful the KRT will be in future cases.
Kheang Un and Judy Ledgerwood are much more pessimistic about Cambodia’s own judicial system. The courts are understaffed and underfunded. Judges often face resistance from the police in executing warrants and arrest orders. While some advocates of the KRT hoped the presence of an international justice system might spur reforms (or at least a healthy envy), this seems unlikely. As the authors note, no matter how much they might respect or prefer the international standards of the KRT, Cambodian judges must respond to domestic political pressures. Unless the CPP government’s attitude towards the judiciary and judicial reform changes, the KRT will likely be a footnote to Cambodian judicial history, not a spur for reform.
Here’s a useful website by the Phnom Penh Post for more background on the KRT and Duch trial.
Here’s an interesting use of American judicial authority: a U.S. court sentenced a Cambodian man to jail for life for plotting a coup against a dictator. Chhun Yasith, an accountant, founded the Cambodian Freedom Fighters, which attacked several Cambodian government buildings on November 24, 2000. Several people were killed and over 100 were jailed. According to his lawyer, Chhun saw Cambodian Prime Minister Hun Sen as an evil on par with Pol Pot.
I imagine Hun Sen is thankful to America judicial practices for sentencing this political opponent for him. But I also doubt that the experience will inspire Hun Sen to consider reforming Cambodia’s notorious judicial system. Just a few weeks ago, the Cambodian Supreme Court upheld another defamation suit against Mu Sochua, an opposition MP. According to BBC, her lawyer quit the case and joined Hun Sen’s Cambodian People’s Party when Cambodia’s Bar Council accused him of malpractice. But that’s another story…
Earlier this week
, I highlighted the conflicts between national and international prosecutors in the Khmer Rouge Tribunal (KRT) and suggested that there was a real risk the Cambodian public would become disillusioned with the KRT. Unfortunately, that fear is on its way to becoming a reality.
Upon its creation, KRT adapted an innovative procedure designed to allow the victims of the Khmer Rouge to testify at trial. It was hoped that participation of these so-called civil parties would give the victims a sense of closure. This had never been attempted before in any other international criminal tribunal. And after the results at the KRT, it might never be attempted again.
Cambodians report being extremely disillusioned with the civil-party process. Many felt that the judges, prosecutors, and defense ignored their testimony. As the Duch trial went on, opportunities for civil parties to testify diminished. Further hampering the process was the fact that each civil party is represented by their own lawyers, rather than collectively. Some of these lawyers have behaved less than professionally – one even visibly rolled his eyes and yawned during another attorney’s closing argument.
The problems are highlighted by a recent profile on Chum Mey, one of the three living survivors of Duch’s notorious S-21 internment center. Chum Mey testified as a civil party against Duch. However, he felt that the judges cut off his testimony, but allowed Duch unlimited time to respond to his allegations. “So at that point,” he reports, “I felt like I did not have any rights to express my concerns, but Duch had the right to express himself.” What a cruel humiliation to impose upon a human rights victim – rather than redressing the crime, the process reinforced the power imbalance between Duch and Chum Mey. At the end, Chum Mey claims the civil parties “lost our voice… and there is no real justice for us.” As the BBC puts it:
The experience left some feeling that they’d been guinea pigs in a judicial experiment – and a number boycotted the court.
There is a silver lining in all of these grey skies – namely, that we will probably never need any ad hoc international criminal tribunals ever again. Why not? Currently, we have the International Criminal Tribunal for Yugoslavia, the International Criminal Tribunal for Rwanda, and, of course, the Khmer Rouge Tribunal, as well as a few others. The covers most of the major late-20th-century crimes against humanity. For any crimes committed after 2002, we now have the International Criminal Court.* Thus, the international community will not have to debate for decades over the structure and composition of international tribunals after each and ever violation. In theory, this will also deter future would-be Milosovices and Pol Pots.
* Well, it’s a bit more complicated. First of all, the ICC only has jurisdiction over countries that are parties to the Rome Statute – and, not surprisingly, the United States is not a party. Second, only certain crimes are delineated, and some, such as the crime of “aggression” in war, remain vague.
The American Society of International Law has published an interesting ASIL Insight that focuses on disputes between national and international prosecutors at the Khmer Rouge Tribunal. International prosecutors want to open investigations into Khmer Rouge leaders beyond the original five already in the dock, while national prosecutors argue it would fall outside the KRT’s jurisdiction (and possibly lead to civil strife). Needless to say, both must agree in order for the Khmer Rouge Tribunal to function effectively. Unfortunately, the article concludes that the entire process might become (or appear) compromised as prosecutors make decisions based on the political interests of their stakeholders rather than the law. This would diminish its credibility severely among the Cambodian people, as well as donors (the KRT’s budget is already pitiful compared to other international tribunals).
You can download the entire article here.
Hun Sen has periodically warned the Khmer Rouge Tribunal (KRT) risks reigniting reopening old wounds if it expands its jurisdiction beyond the five Khmer Rouge leaders already on the docket.* According to The Straits Times, he claimed:
I am not interfering with the court. But it is not the court that stopped the war. Be careful – the court will create war, causing division of society again,’ Hun Sen said in a speech in the capital Phnom Penh.
Obviously, this claim is self-serving, as many suspect Hun Sen fears the KRT could upset his allies, both among the ruling elite, local villages, and abroad. However, does he have a point? Could international criminal courts actually prevent political and societal reconciliation?
I’ve always been a bit disturbed by the fact that it seemed to be Western lawyers, rather than Cambodians themselves, who really demanded justice for the crimes of the Khmer Rouge. Despite the KRT’s many problems
, there probably isn’t much evidence to support the claim that post-conflict justice might actually reopen old wounds. Many international criminal courts actually face the opposite problem. For example, the International Criminal Tribunal for Rwanda suffers from local credibility problems
, especially because most Rwandans do not have TV or radio and cannot follow court proceedings (the ICTR is located in Arusha, Tanzania). The International Criminal Court has run into its own credibility problems, such as being unable to enforce an arrest warrant
for Sudanese President Bashir.
Certainly, the Cambodian people do not support impunity – in fact, if the data in this poll
are still accurate, upwards of 97% of Cambodians support trials against Khmer Rouge leaders (I apologize, I couldn’t find more recent polls). However, the KRT seems destined to suffer its own credibility problems. First of all, the delay – it is now over 30 years since the overthrow of the Khmer Rouge. Second, the KRT’s hybrid structure means that Western and Cambodian prosecutors and judges must agree on whether to initiate more prosecutions against other Khmer Rouge leaders – and very often they haven’t agreed
. Public participation also seems low. Of the 17,000 victims at Duch’s S-21, only 169 civil parties
have come forward to the prosecution. It seems the real fear isn’t, as Hun Sen claims, renewed civil war, but rather the gnawing sense that the KRT will not satisfy public demands for justice
* Prison Chief Kaing Guek Eav (a.k.a. Duch), whose trial concluded last week
, as well as propagandist Nuon Chean, former president Khieu Samphan, foreign minister Ieng Sary, and his wife, former minister of social afairs Ieng Thirith.