PHNOM PENH—Marathon efforts to prosecute Pol Pot's surviving henchmen have never been short on controversy. "Too late," "too long," and "too expensive" are among the chief criticisms faced by officials at the Khmer Rouge tribunal.
Hopes for justice recently took another hit with accusations that the defense teams for Brother No. 2 Nuon Chea and former head of state Khieu Samphan were deliberately stalling proceedings in their genocide trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC), a purpose-built court on the dusty outskirts of Phnom Penh.
The court, as one long-time observer put it, had been ground down in legalese. That was until arguments about whether it should continue exploded with warnings from Cambodian Prime Minister Hun Sen—a former Khmer Rouge commander who defected in 1977—that enough was enough.
The prime minister warned that any prosecution of lower ranked cadre would put the country at of risk civil war. Former Khmer Rouge soldiers, who fear the court's reach, would re-group in the countryside and re-arm for the first time since March 1999, when Ta Mok, the last of the regime's senior leaders, was captured.
“The trial wants to go [for] too much... [and] expand the scope, causing some people to go back to the jungles,” Hun Sen said. “We have to think about the importance of peace, the importance of life. How many people will die if war comes again?”
Independent investigators at the ECCC, however, were unyielding. Less than a week later they charged Pol Pot's former naval commander, Meas Muth, and a district chief, Im Chaem, with a litany of crimes, including homicide, torture, persecution on ethnic grounds, and crimes against humanity.
Im Chaem denied allegations she led communist purges and ran a security center in the remote north-west where 40,000 people died. Meas Muth, who already has the attention of foreign missions here, also pleaded his innocence. His crimes allegedly included the rounding-up Western sailors whose yachts had strayed into waters off Cambodia's southern coast.
They were transported to the infamous S-21 torture center, processed by Commandant Kaing Guek Euv, alias Duch, signed-off on forced confessions that they worked for the CIA, and were executed. One said his CIA handler was “Mr. Magoo.”
A former guard testified that one prisoner, probably an Australian, was shackled and taken outside the gates of S-21. There he was made to sit as a tire drenched in petrol was pulled over him and lit on fire.
Canadians, New Zealanders, and Britons also perished. Americans Michael Deeds and Christopher DeLance were among the last to be executed, shortly before a Vietnamese invasion ousted the Khmer Rouge from Phnom Penh in January 1979, forcing Pol Pot into the countryside where civil war continued for another two decades.
Justice Late Better Than Justice Denied
It was only after war’s end that Hun Sen was in a position to ask the United Nations for help in securing justice for between 1.7 million and 2.2 million people who perished under the 1975-79 regime through mass killings, disease, and slave labor. Arduous negotiations, tainted by Cold War acrimony, followed.
Phnom Penh has since resisted international preferences for a UN war crimes tribunal in The Hague, because of the world body's previous recognition of the Khmer Rouge as head of state in Cambodia. Equally, the UN doubted Cambodia's judicial capabilities.
“During the long and difficult negotiations for the establishment of the ECCC, it became obvious that the Cambodians were determined to play a controlling role in the operations of the court,” said Craig Etcheson, trial expert and Visiting Scholar at George Mason University in the United States.
The squabbles eventually eased and the world's first hybrid war crimes tribunal, consisting of local and international judges, was sworn-in on July 3, 2006.
Etcheson says the ECCC, as it was finally structured, was the only realistic alternative for bringing Pol Pot’s henchmen to trial. “International involvement was essential, because the Cambodians simply lacked the technical capacity to pull off an exercise of this magnitude and complexity.”
The courts would hear a litany of grisly tales from inside S-21 where medical experiments were practiced on live prisoners with no anesthetic. They were kept alive as a blood bank for frontline Khmer Rouge soldiers.
Beatings, electric shocks and water boarding were common. Initially, prosecutors said, the secret police fed S-21 with members of the previous Lon Nol government whose processed deaths were “well planned, managed and disciplined” and people were treated as “germs and rotten flesh that had to be shed.”
The regime then turned on itself and no-one was too important to be spared. Two of Nuon Chea's nieces, who trained as doctors in China, were sent to S-21, as was a sister-in-law of Pol Pot.
Those tapped for execution were handcuffed and clubbed at a rate of up to eight hundred people a day. Some were shot in rotations of thirty to forty at a time. At an airstrip built with forced labor, 30,000 people toiled in conditions so bad that many opted for suicide by hanging, poison or leaping under a truck.
About 800,000 people are thought to have died violently under Pol Pot's rule, predicated upon rudimentary communist values. Money, like education and all vestiges of Khmer culture, were obliterated.
Those who survived endured miserable lives, including marriages enforced en masse between strangers. Desirable young girls were given as trophy brides to favored cadre. Muslims were forced to marry non-Muslims. Women who denied their husbands conjugal rights were shot.
Robert Carmichael, author of the soon-to-be-released book on the Khmer Rouge, When Clouds Fell from the Sky, says the ECCC will always be criticized for providing too little, too late. But on a broader front, Carmichael notes, the tribunal was positive for Cambodia. “We've seen numerous witnesses and survivors able to speak in a court of law about their experiences, something that would have seemed impossible to them as they labored under Pol Pot's catastrophic regime.”
The subject is talked about openly and has been placed on the school curriculum. More than 165,000 people have been bused in from remote parts of the country to witness ECCC proceedings. A television program, Duch on Trial—which offers viewers a round-up of the week’s events at the tribunal—once held an estimated audience of 2.5 million people.
“There's no doubt some processes are better than others,” Carmichael said. “One of the strengths of Cambodia's war crimes court is that it is based inside the country and is conducted in the local language—Khmer, and with translation into French and English.”
More importantly, nine years and $232 million later—or about $100 for each person who died—the ECCC has secured convictions against three senior Khmer Rouge leaders. In Case 001, Duch was jailed for life for his role as chief of S-21.
Brother No. 2 Nuon Chea and former head state Khieu Samphan are also serving life terms for crimes against humanity handed down in Case 002/01, and are currently in the dock on genocide charges in Case 002/02.
Ieng Sary, former foreign minister, died in prison in 2013 as the only man in history to be charged with genocide twice. He was also tried with Pol Pot in absentia by the Vietnamese in 1979. His wife, Ieng Thirith, former minister for social affairs, has been ruled mentally unfit for this trial.
All other senior leaders, like Pol Pot and Ta Mok, are dead. A sense that time is running short has sharpened the focus on charges against Meas Muth in Case 003 and Im Chaem in Case 004.
They will be the first new faces to appear in the dock in more than eight years, signaling this war crimes tribunal is ready to ignore Hun Sen's wishes and expand its net to encompass lower ranking cadre, ensuring ECCC hearings could go well into the next decade.
“It is in everyone’s best interests for Cases 003 and 004 to be resolved through judicial process, rather than by a legal miscarriage or even institutional rupture. And that can still happen in a number of ways,” Etcheson said.
“So far, all the key stakeholders have kept their cool and allowed the process to unfold. Only time will tell if this forbearance will endure until the process has run its course.”
Meas Muth and Im Chaem were both charged in absentia, which a court spokesman said would speed-up proceedings, an important factor given the advanced ages of the accused. All are in their 70s and 80s.
What happens next depends on Hun Sen. The prime minister has always maintained that widening the scope of the tribunal would force remnants of the Khmer Rouge back into the Marquis, and that civil war would follow, potentially costing some 300,000 more lives. It's a fanciful claim met with incredulity even by his own supporters.
But as Carmichael notes, the Cambodian government still contains a number of very powerful people who were once in the Khmer Rouge. “It would be naive to think that some don't have blood on their hands and would therefore have every interest in circumscribing the court's remit and function,” he said. “From that perspective, the judicial process has in some important respects come second to political considerations.”
The prime minister's options remain stark. Either end his government's backing of the war crimes tribunal or do nothing and allow court officials to get on with their job.
Not bowing to political interference has become part and parcel of ECCC operations. In doing so, the tribunal has found its voice and proven it is capable of plotting its legal course. Perhaps most important of all, the court, despite its flaws, holds the respect of many survivors and the international community. Hun Sen would do well to consider that.
Luke Hunt is an award-winning journalist who writes from Southeast Asia for the The Diplomat, The Edge Review, The Economist and occasionally The New York Times, among others. He began his career in the early-1980s after traveling through what was then some of the world’s trouble spots, including Northern Ireland and Southern Morocco. Initially, Hunt worked for Australian Associated Press and then Agence France-Presse where he served as bureau chief in Afghanistan and Cambodia and was the first journalist to enter Baghdad with the US marines in 2003. He also covers conflicts in the Middle East and South Asia and serves as an Academic Program Professor at Pannasastra University in Cambodia where he wrote the course "War, Media and International Relations." Hunt obtained a Bachelor of Arts and a Masters of Defence from Deakin University in his native Australia and works through his Hong Kong-based company Bomborra Productions.