VOA Khmer has some more analysis of the second trial at the Khmer Rouge. Two key issues are whether the (admittedly less legalistic) 1979 trial under the Vietnamese or the 1996 amnesty preclude another trial. John Ciorciari, a professor of law and public policy at the University of Michigan (my home institution), says no to both questions. Read on here to find out more about the debate.
Category Archives: Khmer Rouge Tribunal
It’s been a while since we’ve seen much news regarding the Khmer Rouge Tribunal. The second trial, featuring Nuon Chea (Brother Number 2), Khieu Samphan (former head of state), Ieng Sary (former foreign minister), Ieng Thirith (minister for social affairs), is due to start soon. Unlike Duch, these four defendants allege their innocence and vow to fight the charges.
However, a new dispute appears to have broken out between the Cambodian and international members of the tribunal. The international prosecutors want to bring several more defendants before the trial, while the judges seem to want to avoid further prosecutions. In fact, the behavior of some of the judges has been shockingly unprofessional. According to the BBC:
They [the judges] warned they would punish a “disloyal staff member” they suspected of leaking information. And they “welcomed” the resignation of international staff who disagreed with their approach to investigations, one of whom referred to a “toxic atmosphere of mutual mistrust” in a “professionally dysfunctional office”.
[Judge] Blunk also rebuked a journalist who asked whether the judges were trying to “bury” the third case, telling him: “The use of the word ‘bury’ is insolent, for which you are given leave to apologise within two days.”
Of course, as everybody knows, the best way to inflame a reporter’s charge is to try to attack the messanger. BBC also interviewed some Cambodian activists who suspected that the United Nations simply wants to wrap up the trials as soon as possible in order to save money.
Overall, this is a sad state of affairs for the KRT process and a far cry from what its supporters had hoped. It looks less and less likely that the KRT will have any meaningful impact on the Cambodian legal system. Perhaps the second trial at least will provide enough of a sense of justice to allow Cambodians to close the book on this part of their history.
There’s an article in Asia Times about the current situation of the Khmer Rouge Tribunals. Of particular interest is this description of the KRT’s next steps:
Because the suspects will strongly contest the proceedings and the documentary evidence linking them to atrocities committed by low-level cadres is fragmented, their prosecution is expected to be significantly more difficult than that of Duch, who essentially pleaded guilty after leaving a voluminous paper trail from his time as a prison administrator.
“Case 002 is the most political, the most important, and the most difficult,” said Youk Chhang, director of the Documentation Centre of Cambodia, which helped to compile much of the evidence used by the court. Chhang called the second case “a test of trust between the UN and the government in seeking justice for the Cambodian survivors”.
It’d definitely worth reading in its entirety.
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.
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?