By May Titthara & Sebastian Strangio

Published in the Phnom Penh Post, July 27, 2010

KAMPONG THOM PROVINCE–IN the cafes of Stoung district, yesterday’s verdict in the case of Kaing Guek Eev, alias Duch, proved a hard sell. At one cavernous establishment on National Road 6, a broadcast of the proceedings vied for attention with a cheaply made Chinese action film. As soon as the music swelled and the credits began to roll, the mostly young crowd thinned, leaving a handful of elderly patrons to watch the Khmer Rouge tribunal on a second small screen in the back. And by the time the wiry Tuol Sleng commandant stood to attention and the verdict was read out, the room was empty save for two waitresses, who ferried away empty plates and glasses.

Interest was greater, though, in nearby Chaoyot village, especially among those who knew the prison chief when he was a schoolboy. Although most village elders did not watch the verdict – choosing instead to attend ceremonies marking Buddhist lent at Svay Romeat pagoda, where Duch studied as a child – the outcome provoked spirited discussion. Among one group of old women, dressed in flowing black gowns and white blouses, reactions to the verdict ranged from cold anger to forgiveness to pity for the convicted jailer.

Hi Hor, 72, who has lived in Duch’s village since she was born, said she was livid at the length of the sentence, which she said did not match the crimes he committed. “I will kill him and eat his meat if I meet him,” she said as she sat on a woven mat in the pagoda’s flag-draped dining hall. “The court should have sentenced him to his whole life in prison.”

At Kdey Doeum pagoda, located close to Chaoyot, village elders also gathered to mark the three-month lenten period, sitting on the floor of a half-constructed dining hall on the temple grounds. Pich Doeun, a 73-year-old layman, described his own experience under Democratic Kampuchea, when he was sent to a remote part of Stoung district to toil in communal rice paddies and construct irrigation dams. When asked if the verdict against Duch was fair, Pich Doeun expressed ambivalence. On one hand, 30 years was a just sentence, he said, but part of him wanted to see Duch executed and cremated, his bones placed in a stupa and never again removed. “I survived until today because of fate,” he said. “From my point of view, the court should kill him and bring his bones back and lock them up.”

Others, however, were able to separate their anger with the Khmer Rouge from their positive memories of the young Duch. “Even though I was tortured and did not get enough food to eat during that time, I pardon him. Everything passed over 30 years ago,” said 71-year-old Chhum Oeun, sitting at Svay Romeat pagoda.

Despite the evidence presented against him at trial, she said she would always remember Duch as “good and intelligent”, not the cruel ideologue convicted of overseeing the deaths of as many as 16,000 people at Tuol Sleng. Some of Duch’s relatives, too, said they did not view Duch as a monster, and condemned the court for a sentence they said was too strict. “I really pity my nephew,” said one 71-year-old who claimed to be Duch’s aunt, and who gave her name only as Tob. “The court should have charged him for a shorter time because he is too old, and let him live together with his family in his old age. “I don’t know what happened to him to make him become a Khmer Rouge during that time because his parents were good people,” she added.

A few hundred metres down the muddy village road, Brak Chlam, 67, one of Duch’s cousins, said he hoped to see the prison chief again. “I don’t care about the court charging him. What I care about is his life – I want to see him survive,” he said. Brak Chlam said he planned to visit Duch in prison if he could find the money. “I always see his face on TV. I want to see his real face,” he said. “I was so happy when I got news that he survived, because I wanted him to survive. I don’t know what he did in Phnom Penh. I only know that he was a good and intelligent boy.”

While the verdict divided opinion among those old enough to have detailed memories of the regime, younger observers seemed more or less indifferent to the verdict handed down yesterday. At another roadside cafe, the patrons were focused instead on playing chequers and watching kickboxing. Meas Rith, 41, who sat among a group of men watching the fight, said he had not been following the tribunal closely, but that he did not think it fair that Duch could potentially die in prison.

“The court should have sentenced him to about 10 years to give him some chance to spend time in the pagoda in his old age,” he said, before turning his attention back to the television. A cry went up as the two combatants pummelled each other onscreen.

“The people in the rural areas are not as interested about what has happened in the past as people in the city,” said Chai Lign, the owner of the café. The sinewy 29-year-old said he had heard of Duch but knew little of life under the Khmer Rouge, and that many his age were the same way. “They don’t want to know about the pain,” he said. “Some people don’t even know Duch’s face, what he looks like.”

By Sebastian Strangio

Published in Eureka Street, February 23, 2009

ON 17 February, a gaunt former school teacher walked into a packed courtroom in the Cambodian capital of Phnom Penh, flanked by lawyers and lit by the flashes of the international press corps. Amid the procedural banalities of the ensuing hearing, an observer could be forgiven for mistaking the momentous nature of the event: more than 30 years after its overthrow by an invading Vietnamese army, a senior leader of the genocidal Khmer Rouge regime was sitting in the dock in a duly constituted court of law.

Kang Kek Ieu, better known by his revolutionary alias Duch, was the self-confessed chief of Phnom Penh’s notorious Tuol Sleng prison, which oversaw the torture and eventual execution of as many as 16,000 ‘enemies’ of the revolution. The court has also indicted a further four senior Khmer Rouge, who are set to face trial for the deaths of the estimated 1,700,000 people who perished under the regime during 1975–79.

But the Extraordinary Chambers in the Courts of Cambodia (ECCC) — a hybrid court combining local and international staff — has set itself a mandate that goes far beyond the goal of rendering impartial verdicts. According to its website, the ECCC intends that the trials will help ‘ease the burden that weighs on the survivors’, as well as ‘strengthen our rule of law and set an example to people who disobey the law in Cambodia and to cruel regimes worldwide’.

But both these aims of judicial reform and historical catharsis vastly overrate the demonstrative power of international justice in the current Cambodian context. Abstract norms of international justice have virtually no precedent in Cambodia, where in the 1970s a nascent modern judicial system was smothered in the cradle by the Khmer Rouge. Nominally independent, the judiciary today is in practice wholly subservient to the ruling Cambodian People’s Party. This reflects the nature of the one-party state and the piecemeal democratisation that has taken place since the UN-brokered elections of 1993. Despite the halting progress of the ECCC, politically-motivated shootings of journalists and trade union leaders continue to go unpunished.

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After getting myself up to date with the slow progress of the Khmer Rouge trials, I’ve put together a new article for the London-based libertarian magazine Spiked Online, which has since been published and ‘syndicated’ (i.e. copied and pasted) to a number of Cambodian news blogs. In my piece, I take a critical look at Western involvement in the trials, arguing that the international community’s commitment to impeccable standards of justice — as noble as it is — could end up derailing the tribunal process altogether.

While putting the Spiked piece together, I started forming some more involved theories about international war-crimes tribunals. First of all, I asked the most obvious question: what purpose are they intended to serve? There is often talk of bringing ‘justice’ to war-torn countries and ‘righting the wrongs’ of the past through fair and impartial trials. On the face of it, this makes plenty of sense. But in the context of international intervention, such an instrumental form of justice cannot avoid the taint of politics: after all, ‘wrongs’ can only be ‘righted’ if tribunals yield ‘guilty’ verdicts. Many international tribunals are therefore coloured by presuppositions of guilt which, while often right and just, belie their claim to total impartiality. This is hardly surprising, since there are many actors with a political stake in war-crimes tribunals: the ‘victors’, or those who rise to power in the wake of the war-criminals’ deposition, for whom the trials are an opportunity to legitimize the conflict or armed coup or foreign intervention that brought them to power; then there is the omniscient community of governments and international NGOs, which, in its goal of bringing ‘justice’ and accountability to unstable regions, requires that their involvement is vindicated with ‘results’. For both these groups, justice is a means to an end. It serves an overtly political function.

Now, this is arguably acceptable so long as the tribunal brings some tangible good to the country on whose behalf it has been established. It might, for instance, help heal the wounds of war and provide resolution for a dark chapter of a nation’s history. More specifically, it might also help train local magistrates in international legal procedure or serve notice to corrupt individuals that their days of living in impunity are over. However, the veneer of commitment to impartiality and due process — the pretence that any tribunal operates in a political vacuum — can compromise justice in two ways. Firstly, legal fastidiousness can delay the establishment and operation of a tribunal until most of the defendants are either dead or physically unfit for trial. This has been a major problem in Cambodia, where tortuous negotiations between the Hun Sen government and the United Nations Office of Legal Affairs delayed the establishment of a Khmer Rouge tribunal by six years. Even now, nearly eleven years after the Cambodians first requested legal aid from the UN, the trials are yet to get underway. The surviving Khmer Rouge leaders are frail, unhealthy octogenarians and may not live to see a verdict.

A second possibility is that the defendants might be legitimately acquitted. If a tribunal is really as impartial as it claims, and the defendants are given the full spectrum of rights of appeal and due process, they might be able to fudge and prevaricate their way to an acquittal or bog proceedings down with a unending string of procedural appeals. And while war-crimes or crimes against humanity usually leave ineradicable evidence, it can sometimes be difficult to pin them on particular individuals. Attenuated hierarchies of command often separate war-criminals from the effects of their actions on the ground, and it can be hard to prove individual culpability for crimes that were committed under the oversight of local leaders or involved verbal — that is, improvable — orders to subordinates. (As the judges at the 1945 Tokyo trials discovered, establishing ultimate responsibility for crimes against humanity is a thorny issue. Lacking firm evidence of personal culpability, the Allies resorted to hanging several Japanese generals for crimes of omission — i.e. for not enforcing discipline in the ranks).

Similarly, the defence may choose to take the path of legal obfuscation, binding the proceedings in so thick a web of red tape and legal appeals that any verdict will be delayed almost indefinitely. Both hypothetical outcomes demonstrate how legitimate trials can be rendered useless by the purity of their intentions. In the case of some international tribunals — and certainly in Cambodia’s — it may be that effective justice and fastidious impartiality are impossible to obtain in equal measure.

The function of a war-crimes tribunal must be clear and unambiguous from the outset. If a tribunal is to be legally pure, international governments and NGOs need to have patience and realise that it may not deliver the desired ‘outcomes’. If, on the other hand, governments are interested in the political effect that a successful prosecution might have, they’d do well to drop the pretence at impartiality and let justice be delivered swiftly and earnestly. However, no good (except, perhaps, a political one) is served by weaving a web of legitimacy for institutions that are inherently — though perhaps necessarily — flawed.

(As much as it pains me to admit it, Saddam Hussein’s trial was a good example of swift (and unabashedly political) justice, albeit one that was overshadowed by the sheer dangerous insanity of invading and occupying Iraq with barely 150,000 troops, disbanding the Iraqi army and then declaring ‘mission accomplished’ before the Ba’athist/Islamist/nationalist insurgents even had time to dust off their AK-47s. Now, if the Iraqi tyrant had been strung up by a Kurdish or Shi’ite militia rather than the gloating US military, I’m sure many anti-US commentators would be more tolerant of its legal shortcomings).

The West is turning the trial of surviving members of the Khmer Rouge – its former allies – into a piece of self-promoting political theatre

By Sebastian Strangio

Published in Spiked Online, February 18, 2008

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.

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In between lounging in the backyard and assaulting Robert Fisk’s brick-like The Great War For Civilisation, I’ve been immersing myself in readings about the Khmer Rouge Tribunal — scheduled, after nearly two decades of diplomatic evasion and acrimonious negotiations, to begin operation sometime in 2008. But after again reading about the tribunal’s tortuous gestation, I’m growing increasingly pessimistic as to when — and to what degree — justice will ever be done. The Extraordinary Chambers in the Courts of Cambodia (ECCC) are now in the process of processing appeals against the provisional detention of the five defendants — KR heavyweights Ieng Sary, Ieng Thirith, Khieu Samphan, Nuon Chea and Khang Khek Iev — and the procedure (checks, balances and all) is crawling along at a glacial pace.

Given that the trials are expected to last three years, there’s every chance that the defendants will be dead before the ECCC has a chance to bring them to trial. Pol Pot evaded justice by dying in mysterious circumstances at his jungle headquarters in April 1998, while the one-eyed Ta Mok — nicknamed ‘the Butcher’ for his ruthless purges — died in prison in 2006 while awaiting trial. Several of the current defendants, including ex-KR head of state Khieu Samphan — who reportedly suffered a stroke on the eve of his arrest in November — are in similar ill-health, making a speedy and efficient trial a high priority. A degree of procedural fastidiousness is vital for the ECCC’s international credibility, but should not be allowed to compromise its avowed aim: to bring the remaining Khmer Rouge leadership to justice.

This tension between international and local imperatives has plagued the relationship between the UN and the Cambodian government since the latter requested international assistance for a trial in 1997, with the constitution of the court a constant sticking point. The Cambodians consistently argued that the trials had to take place firmly within the context of Cambodian national sovereignty and involve a majority of local judges and prosecutors. (This was a logical outcome of a history of constant foreign intervention in Cambodian affairs — by the French, Americans, Vietnamese and, for a short period in the 1990s, the UN itself). 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 pointed to the government’s penchant for meddling in the workings of the judiciary, which, while nominally independent, was more or less subordinate to the ruling Cambodian People’s Party (CPP). Concerned about the UN’s international reputation in the lead up to the 2003 American invasion of Iraq, Secretary-General Kofi Annan was hesitant to involve it in any trial that could be seen as corrupt or politically motivated. The UN negotiating team, led by the Swedish diplomat Hans Corell, steadfastly asserted that any KR tribunal had to be composed of international judges and prosecutors, preferably conducted in a third-country location. This the Cambodians refused. In February 2002, Corell withdraw from the negotiations altogether, infuriated by the ‘obfuscation’ of the Cambodian negotiators.

The ‘mixed’ (joint UN-Cambodian) tribunal model that was finally signed into existence in June 2003 was a child of political compromise, but turned out to be an innovation in international justice. The defendants would be tried using Cambodia’s domestic legal framework, in accordance with a domestic Khmer Rouge Trial law (passed in 2001), which incorporated articles from the 1948 UN Genocide Convention. The agreement established a tribunal consisting of a Supreme Court Chamber, composed of four Cambodian and three international judges; a Trial Chamber, consisting of three Cambodian judges and two international appointees; and a Pre-Trial chamber, composed of the same. The role of the prosecution and the investigative team were each to be shared by one Cambodian and one UN appointee.

A pre-trial hearing of the ECCC, November 2007.

However, the agreement elicited mixed reactions. Cambodian negotiator Sok An argued that it represented ‘a model that… can contribute to the development of international humanitarian law and contribute to legal and judicial reform in Cambodia’, a position shared by many Cambodia watchers and diplomats. But the 2003 agreement has come under fire from 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’. For such critics, no trial was preferable to a ‘flawed’ one — a noble enough sentiment, but one that disregarded both the practical considerations of attaining such a ‘perfect’ form of justice, and the moral imperative of allowing some degree of Cambodian involvement in the trial process.

There was also a lingering fear that certain leading Khmer Rouge could be exempted from prosecution by the personal arrangements that secured their defections to the government in the 1990s. Ex-DK foreign minister Ieng Sary was the recipient of a royal amnesty in 1996, which protected him from the death sentence handed down by a 1979 show trial, and there were fears that this would be dusted off and presented in his defence. Likewise, Khieu Samphan and Nuon Chea returned to the capital in 1998 under a Thai-Cambodian agreement that protected them from arrest. Will prime minister Hun Sen flex his political muscles to secure their acquittal? Both seem unlikely. During the trial negotiations, the UN representatives clearly stated that nothing could prevent a prosecution for the crime of genocide (the only conviction that Ieng Sary’s amnesty specifically annulled). And the CPP, for all its flaws, is the only political group to have consistently advocated a Khmer Rouge trial since their overthrow, and stand to reap much political capital from an open and transparent trial process.

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. Some degree of justice is better than none at all — and the ECCC would appear to be Cambodia’s last chance at absolution.