Cambodia’s Nuremberg moment comes despite tribunal’s limitations

Photo Credit: Wikimedia Commons

The Khmer Rouge tribunal convicted the final two surviving leaders of genocide. However, the tribunal’s legacy will go far beyond the convictions.

By John Pennington and Oliver Ward

More than 1.7 million people died at the hands of the Khmer Rouge in the 1970s. It has taken almost 50 years for the last surviving leaders to face justice. Too little, too late or has the UN-backed tribunal delivered justice for the victims of Pol Pot’s brutal regime?

Earlier this month, Nuon Chea and Khieu Samphan were handed life sentences for genocide. The only other person the tribunal, known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), convicted was Kaing Guek Eav, who ran the harrowing Tuol Sleng torture centre, in 2010.

Two others initially indicted died before the proceedings finished. Cases against others collapsed. After 12 years and an estimated cost of more than US$300 million, the Cambodian government says the tribunal’s work is done.

Prime Minister Hun Sen declared that there would be no more convictions. He claimed further arrests and trials would provoke unrest.

Following the tribunal’s conclusion, the Cambodian interior minister Sar Kheng confirmed, “I would like to clarify that there will be no more investigations taking place.”

The court’s limitations prevented it from bringing more officials to justice

The tribunal was set up to try senior Khmer Rouge officials alleged to have committed crimes against humanity, war crimes and genocide during the period of the Democratic Kampuchea, between 1975 and 1979. International judges from a range of countries presided over the proceedings.

It is important to note that the tribunal was a hybrid court. Made up of a roughly 50-50 split between Cambodian and international judges. It set out to try only senior Khmer Rouge leaders and those most responsible for the atrocities. That left the court with only a small set of targets.

“All tribunals of this character have political restraints, and so that is not unique to the ECCC,” explained Northwestern University law professor David Scheffer. In that sense, the tribunal never had complete freedom to attempt to indict, try and convict all Khmer Rouge officials.

The tribunals were dogged by controversy

The Cambodian government opposed the trials. It protected ex-Khmer Rouge officials now in positions of power. That includes Hun Sen. He was once a Khmer Rouge soldier and a battalion commander. In the late 1970s, he fled the country only to return to as a rebel army leader and eventually became Prime Minister.

Onlookers believe the government did not want to try officials who – like Hun Sen – switched allegiance as the conflict in Cambodia came to an end.

There is evidence that the tribunal illegally prevented victims from participating. Judges rejected three applications from citizens wishing to participate as victims in the case. Some of these applications were rejected on the grounds that the applicants were not the “direct victims”, instead, they were the family of loved ones who had perished.

The Open Society Justice Initiative believed that some of the judges’ decisions did not adhere to international standards.

According to an ECCC lawyer involved in the tribunal’s investigation process, in 2008, some of the judges’ conduct also showed a lack of empathy for the victims. She recalled an incident in the trial of Kaing Guek Eav when one of the victims got upset while testifying about the atrocities committed against their loved ones. The judge told the civil party, “compose yourself”, adding, “if you don’t talk now and stop crying then your time is over”.

Onlookers disagree about the tribunal’s impact

Criticism of the tribunal is valid. The tribunal indicted five ex-Khmer Rouge officials, but others escaped trial. One of those is former navy commander Meas Muth. Despite arrest warrants, he reportedly lives in peace. Hun Sen opposed his arrest, as did several judges on the panel.

Other judges resigned, frustrated with what they perceived as attempts by Cambodian judges to stop other Khmer Rouge officials going on trial. A hybrid court was always going to be hamstrung to some degree.

However, for all of the tribunal’s shortcomings, it sewed a lot of good. It delivered justice. It established historical records. Without bringing ex-Khmer Rouge leaders to justice, details of what happened under their regime may have gone to the grave with them.

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It also helped foster a national dialogue on the Khmer Rouge and the atrocities it committed. The ECCC lawyer involved in the tribunal’s investigation process described how when she arrived in the country in 2008, “nobody spoke about the Khmer Rouge, there was an absolute silence on this topic”. “This has really significantly changed through the existence of the tribunals”, she said.

The civil parties involved in the cases also developed an immense sense of community. The ECCC lawyer told ASEAN Today about one incident when heavy flooding wiped out several houses, including one belonging to a participant in the case. “Other civil parties came and helped… rebuild the house”.

It helped Cambodians learn about their civil rights and the methods of fighting for them. She described this as “huge for a country like Cambodia”.

It is clear that the success of the tribunal depends on your perspective. For those within Cambodia and involved in the process it delivered benefits they could see by working on a day-to-day basis with civilians.

The trials cost an enormous amount of money. By 2014, Cambodia and the UN had put more than US$200 million into the trials. At that time, the tribunal had completed just one case. The final figure stands at more than $US300 million.

Other trials, such as those following conflicts in Rwanda and Yugoslavia, cost more but they also put many more people in the dock. Additionally, many more judges presided, and all were neutral.

However, in these cases, the tribunals did not take place in the same country where the atrocities occurred. For Cambodia, the tribunal went far beyond the number of convictions. It was an opportunity to embolden the Cambodian people, strengthen the justice system, and promote human rights. In this regard, the tribunal was an unmitigated success, despite Hun Sen and the Cambodian government’s best efforts.

Was it Cambodia’s Nuremberg?

It is easy to see why onlookers made comparisons with the post-World War Two Nuremberg trials. Nuremberg changed the landscape of international law. Judges swiftly brought the remaining Nazi ringleaders to trial and– in many cases- death sentences were handed out.

A similar process took a lot longer to come to pass in Cambodia, but the comparison is only partially valid. The limitations of the ECCC meant it could only convict certain ex-Khmer Rouge officials. However, under the current political regime, there was little more the ECCC could have achieved. It indicted and sentenced leaders despite political interference.

For the victims, this is their “Nuremberg moment”. Despite Hun Sen’s best attempts, the ECCC delivered justice. After all, even limited justice is better than no justice at all. And the fight for justice is how some Cambodians feel they can best honour those that died.

Preserving the tribunal’s legacy

Critics now fear that the government will prevent dissemination of the official records of the tribunal hearings. They may try to edit online records.

So Farina, the Principal Deputy Director of the Documentation Center of Cambodia (DC-Cam), spoke about the need for full disclosure moving forward. “We have to make sure that people have full access to the [ECCC] archive, especially the younger generations of scholars and researchers”, she said.

“They should be placed in an independent institute or a place where people can go without fear”, Farina said, “that is… a legacy of the court as well”.

Hun Sen wants his people to move on. Perhaps now, some of them might feel as if they can. But they will carry the lessons of the tribunal with them.

The tribunal allowed the Cambodian people to become the protectors of their own history. It dragged the Khmer Rouge dialogue out of the hushed whispers and onto the nation’s television sets. But above all, it showed Cambodians that they have inalienable rights. Rights that not even the bloodiest regime in Cambodia’s history can violate with impunity.