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 & May Titthara

Published in the Phnom Penh Post, July 26, 2010

KAMPONG THOM PROVINCE–THESE days, life in Chaoyot village, a collection of stilt houses nestled along the banks of the Stoung river, proceeds in much the same way it did 68 years ago, when Kaing Guek Eav, alias Duch, was born to parents of Khmer-Chinese extraction. It was here, in a small concrete home shaded by bamboo groves and mango trees, that Duch spent his childhood years, cycling each day the short distance to the local primary school.

The rustling palms and rutted village track are worlds away from Tuol Sleng, or S-21, the secret Khmer Rouge facility that Duch moulded into an efficient machine of interrogation, torture and death. As head of the prison, Duch is thought to have overseen the torture and killing of as many as 16,000 people, creating a nihilistic whirlwind from which only 14 or so emerged alive.

Kong Suon, 85, the oldest resident of Chaoyot village, was enraged when Kaing Guek Eav, alias Duch, asked to be set free. (Photo: Sebastian Strangio)

As the Khmer Rouge tribunal prepares to deliver its verdict against the 68-year old today – perhaps the only one it will ever issue – the proceedings have not gone unnoticed in Chaoyot. But the desire to see justice served means different things to different residents; whereas some are unsure how to relate Duch’s crimes to the abuses they personally endured during the regime, others seem to feel their effects acutely.

More than six decades since his birth, Duch has left only a faint trace in Chaoyot. His neat family home, currently occupied by his nephew Kim Luon, still stands, surrounded by a well-tended yard that abuts the road. Dy Thy, 63, one of Duch’s old neighbours, said she heard nothing from him during the 1975-1979 rule of the Khmer Rouge, and that she found it hard to square the quiet young student she remembers with the horrors of Tuol Sleng.

“I supposed that the Khmer Rouge were people from abroad,” she said. “I didn’t know they were Cambodian people – especially not a person born in this village.”

An exceptional student

Duch lived in Chaoyot until about the age of 14. Residents recall that from his earliest years, the boy who went by the nickname “Kiev” stood out as an exceptional student. Sem Thuon, now 69, regularly shared a table with Duch at Wat Svay Romeat primary school between the first and third grades. “I always copied from him during the exams, and he allowed me to copy,” she said. “I never thought that he would become a strong Khmer Rouge leader.”

In many ways, however, Duch’s intellectual journey epitomised that of the Cambodian communist movement. Like other regime leaders, he was a beneficiary of the sweeping educational reforms Prince Norodom Sihanouk introduced in the late 1950s. Intended to modernise the country and expand opportunities in the countryside, the reforms instead created a class of educated but underemployed young men and women who helped pry apart the country’s centuries-old system of patronage. As the 1960s wore on, Sihanouk – the God-King himself – came under stronger attack from the growing ranks of the left.

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Int’l, national sides disagree on timing of future investigations

By Sebastian Strangio

Published in the Phnom Penh Post, June 10, 2010

THE Khmer Rouge tribunal has released letters documenting a disagreement concerning the timing of investigations into five additional regime suspects, continuing a long-standing pattern of disputes between Cambodian and international officials over the issue. Documents made public Wednesday showed that Cambodian co-investigating judge You Bunleng reversed an earlier agreement with his international counterpart Marcel Lemonde to open investigations into the five unnamed suspects. “For the sake of transparency, they have decided to make public the letters they exchanged recently on this issue,” the judges’ office said in a statement Wednesday.

In the first of the letters released by the court, dated June 2, Lemonde called on You Bunleng to sign a rogatory letter authorising preliminary investigations in Cases 003 and 004. He said that investigation teams were ready to be deployed “without delay”, and that if the order was not signed by June 4 he would conclude that the two disagreed on the issue, “with all the negative consequences this might entail”. “I hope we can avoid reaching this point,” he added. In a response dated June 8, You Bunleng stated that he initially signed the order Friday, but then reversed his decision, saying the issue should be considered in September after the closing order for Case 002 – the “core” of the tribunal’s mandate – is finalised. He said his decision was based on his consideration of the court’s purpose and the “current state of Cambodian society”.

UN court spokesman Lars Olsen said Lemonde will pursue the investigations on his own, pursuant to court rules. He added that investigators will not yet focus on specific individuals, but rather try to establish “whether or not crimes described in the submissions from the prosecutors took place at certain locations”. “The results from this part of the investigation will form some of the basis for the decision of whether or not to start investigations against individuals” at a later date, he said. Despite disagreement on the timing of the new investigations, Lemonde and You Bunleng are still working closely together on Case 002, which will provide a “good basis for future cooperation”, Olsen said.

The disagreement is consistent with an apparent pattern of government reluctance to prosecute any former regime leaders beyond those five already indicted by the court. In September 2009, the court’s acting international co-prosecutor William Smith announced he had filed submissions for investigations into five additional, unnamed regime suspects, overriding the objections of national co-prosecutor Chea Leang, who had argued that additional prosecutions could prompt ex-Khmer Rouge cadres and their allies to “commit violent acts”. After the announcement, Prime Minister Hun Sen echoed this warning in a speech, saying, “If you want a tribunal, but you don’t want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?”

Anne Heindel, a legal adviser for the Documentation Centre of Cambodia, said the rift echoed earlier disagreements, but said that such disputes are to be expected in a tribunal combining local and international officials. She expressed concern about delays that might result, but added that it is not feasible to wait for the conclusion of Case 002 before the third and fourth cases move ahead. “If they don’t get started on Cases 003 and 004 while they’re still on Case 002, there’s probably going to be donor fatigue and unwillingness,” Heindel said. The fact that You Bunleng signed the letter before reconsidering showed “some willingness on his part to consider a third and fourth investigation”, she added.

Under the tribunal’s internal rules, either investigating judge may bring the disagreement before the Pre-Trial Chamber within 30 days. The rules also hold that while the dispute-resolution process is in motion, “the subject of the disagreement shall be executed”. Only in the case of arrests, it adds, does there need to be full consensus between the two judges.

You Bunleng could not be reached for comment.

With an Australian inquest set to revisit the killing of three Western tourists by Khmer Rouge in 1994, former cadres in Kampot reflect on the events that led to the men’s capture and killing

By Sebastian Strangio & May Titthara

Published in the Phnom Penh Post, February 19, 2010

OFF a dusty track in Trapeang Chranieng village lies a half-finished Buddhist pagoda, its unpainted walls still exposed to the mid-afternoon sun. Locals say the new building – as well as a nearby shrine, built in 2007 – is dedicated to the spirits of those killed in the village while it was under the control of Khmer Rouge forces in the 1990s.

Now a small hamlet of thatch houses and rustling palm leaves, there is little to hint at Trapeang Chranieng’s tumultuous past. As a Khmer Rouge camp – part of the armed group’s Phnom Voar (‘Vine Mountain’) stronghold – the village was the last home of David Wilson, Mark Slater and Jean-Michel Braquet, three tourists kidnapped when Khmer Rouge troops ambushed a Sihanoukville-bound train on July 26, 1994, killing 13 Cambodians. Despite heated negotiations with Cambodian government officials to secure their release, the three were killed in September as Phnom Voar came under fierce attack from government troops. When soldiers finally overran the area the following month, the bludgeoned bodies of the three were found in a shallow grave at the foot of the hill.

A villager points out the grove where David Wilson, Mark Slater and Jean-Michel Braquet were held during their six weeks in Khmer Rouge captivity.

At one hut, thatched with dried palm leaves, a former Khmer Rouge cadre recalled the “handsome” young men who arrived at the camp in July 1994. “When they came they were afraid at first, but after they understood [became at ease with] me, they always spent time with me and we talked a lot, even though I didn’t understand what they said,” said Keo Gnov, who cooked for the hostages during their stay.

Upon their arrival, she said, Wilson, Slater and Braquet did not take well to the rice-based Khmer diet, but were able to survive on potatoes, sugar cane and coconuts that she foraged for them. The 63-year-old, now bent by years of back-breaking rural labour, giggled when recalling an incident during their first days at the camp, when the captives scandalised local villagers by showering naked in the open. The three quickly learned to wrap a cotton krama, or cloth, around their waists in the traditional Khmer manner.

A quiet grove, shaded by banana, mango and guava trees, is all that remains of the “prisoners’ area” of the village. Kol Mak, 60, a stooped former school teacher, pointed out the crumbling laterite foundations that mark the location of the small wooden hut that was used to house the three Western hostages. Although the captives were confined to the camp, they were not mistreated, said Keo Gnov, and they were largely free to walk about as they pleased. But her bright eyes dimmed when she recalled the government’s artillery offensives on the area, when the mood of the hostages fluctuated between relative relaxation and an evident fear for their lives. “When the Cambodian government soldiers opened fire, they put their arms around me and we hid in the trenches together, and at night we slept together in that wooded house,” she said. “I loved them as my sons, and I saw that they loved me as their mother.”

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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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By Sebastian Strangio

Published in Eureka Street, April 9, 2008

THE crimes of the Khmer Rouge are well known. Between 1975 and 1979, Pol Pot’s regime of ‘Democratic Kampuchea’ 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 1.7 million Cambodians.

After nearly three decades of legal impunity, justice is finally catching up with the surviving Khmer Rouge leadership. Following six years of 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 finally be held accountable.

But for all its noble rhetoric, the ECCC is plagued with problems. The ‘mixed’ (joint UN-Cambodian) tribunal is beset by ballooning budgets and the proceedings continue to crawl along at a glacial pace. In January, the ECCC revised its budget upwards to US$169.7 million — up from an original $56.3 million — and pushed back its expected finishing date until the end of 2011. Meanwhile, wages for 200 Cambodian employees of the ECCC have not been guaranteed beyond the end of April. So far, just five leading Khmer Rouge have been arraigned by the Phnom Penh court, and the proceedings have yet to move beyond a series of lengthy pre-trial appeals. The first trial, that of Khang Khak Iev — the former head of the Tuol Sleng torture prison in Phnom Penh — is scheduled to begin in July, finances pending.

On 3 April, the Australian government announced it will donate $500,000 to the ECCC, but even after meetings with ECCC officials in New York, the major donor nations are dragging their feet. According to reports, the countries providing the primary funding for the trial — Britain, Germany, Japan and France — are hesitant to commit more money to a trial process that some fear is under the political influence of the Cambodian government and its ruling party, the Cambodian People’s Party.

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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.