01/06/2012

Bringing the Khmer Rouge to justice - Mary Kozlovski

Cambodia’s war crimes court appears to have reached an impasse and run into controversy over potential future cases.

Kaing Guek Eav, a slight man in a beige jacket, stood still in the dock as he listened to a final appeal judgment in the first case ever tried at the Khmer Rouge tribunal. It was a warm February morning on the outskirts of Phnom Penh, where victims of the Khmer Rouge regime gathered along with hordes of journalists, diplomats and government officials, at the tribunal known officially as the Extraordinary Chambers in the Courts of Cambodia, or ECCC. The Supreme Court Chamber – the United Nations-backed tribunal’s court of appeal – was announcing its judgment in the case involving Kaing Guek Eav, better known by his revolutionary alias Duch.

The 69-year-old former schoolteacher was once the chairman of the Khmer Rouge’s S-21 prison, a cluster of old school buildings in central Phnom Penh. In the late 1970s, thousands deemed traitorous by the Khmer Rouge were interrogated and tortured within its walls, before being executed. Only a handful of people sent to S-21 are known to have survived. Duch’s sentence was increased to life imprisonment for crimes against humanity and war crimes for his role in the deaths of at least 12,272 people.

‘The crimes committed by Kaing Guek Eav were undoubtedly among the worst in recorded human history,’ the appeal judgment read. ‘They deserve the highest penalty available to provide a fair and adequate response to the outrage these crimes invoked in victims, their families and relatives, the Cambodian people, and all human beings.’

The judgment was a milestone, finalising the court’s first case against a former member of the Khmer Rouge, a movement that presided over a brutal regime between 1975 and 1979. It was not without controversy, however, overturning a remedy granted to Duch for the eight years in which he was unlawfully detained at a Cambodian military court prior to his transfer to the ECCC. In July 2010, the Trial Chamber had sentenced Duch to 35 years' imprisonment, which was reduced to 30 years as a remedy for his unlawful detention, and gave him credit for 11 years already spent in detention. Public reaction to the verdict was acute, with many survivors feeling it was too lenient given the gravity of Duch’s crimes.

The Supreme Court Chamber judges agreed that the gravity of Duch’s crimes warranted a life sentence, but diverged on the issue of a remedy. One international judge and the four Cambodian judges in the Supreme Court Chamber ruled by ‘supermajority’ – which is required under the ECCC’s hybrid model – to reverse the remedy.

Meanwhile, two international judges — Sri Lanka’s Chandra Nihal Jayasinghe and Poland’s Agnieszka Klonowiecka-Milart — appended a partial dissent, arguing that Duch should be granted a reduced sentence of 30 years’ imprisonment as a remedy to ensure his sentence was ‘consistent with internationally recognised standards of fairness’ and the ECCC ‘continues to serve as a model for fair trials’.

Excessive pre-trial detention is commonplace in Cambodia, and frequently contravenes domestic laws. Anne Heindel, a legal adviser for the Documentation Centre of Cambodia, which researches Khmer Rouge history, says that the Trial Chamber’s decision to provide a remedy was legally correct. ‘Without it, the ECCC’s potential impact on Cambodian fair trial standards is massively diminished,’ she says.


'The crimes committed by Kaing Guek Eav were undoubtedly among the worst in recorded human history. They deserve the highest penalty available to provide a fair and adequate response to the outrage these crimes invoked in victims, their families and relatives, the Cambodian people, and all human beings.’
Appeal judgment


Despite the controversies attending the conclusion of Case 001, the judgment was in its own way a landmark. A second trial is currently under way involving three more senior former Khmer Rouge. Rupert Abbott, Amnesty International’s researcher on Cambodia, says that while the overturning of the remedy was disappointing, the Case 001 proceedings were nonetheless ‘of the highest standard’ Cambodia had ever seen. He added that the current trial sent a powerful message about accountability. ‘The space that this tribunal has created to talk about the Khmer Rouge period and to talk about what justice means, what trials should look like, is great for Cambodia,’ Abbott says.

Controversy at the court
However, the ECCC’s gains are in danger of being overshadowed by internal conflict and enduring controversy over two potential future cases known as Case 003 and Case 004. The two cases, which involve five former mid-ranking cadres alleged to have committed atrocities during the Khmer Rouge era, have been hobbled by numerous allegations of political meddling.

In October 2010, Cambodia’s Prime Minister Hun Sen, himself a former Khmer Rouge cadre who defected to Vietnam in 1977, told visiting UN Secretary-General Ban Ki-moon that Case 003 would not be ‘allowed’, arguing that the investigations were a threat to the country’s stability. Senior Cambodian officials have since echoed the sentiment.

Earlier, in 2009, French Co-Investigating Judge Marcel Lemonde issued summonses for six senior officials to testify as witnesses in the Court’s second case. All six officials ignored the summonses and have never given testimony.

However, government spokespeople have consistently denied interference with the tribunal’s work. A spokesperson for Cambodia’s Council of Ministers dismissed the allegations as accusations made by foreigners, and says that Cambodia expected the UN to ‘respect our sovereignty… we respect UN credibility, integrity’.

Then came the resignations. In October, German Investigating Judge Siegfried Blunk unexpectedly stepped down, citing perceptions of ‘attempted interference’ by Cambodian officials in the cases. The resignation followed allegations that he and national Co-Investigating Judge You Bunleng had deliberately botched the Case 003 investigation, closing it in April 2011 without suspects being questioned or certain alleged crime sites being examined.

The UN then jousted with Cambodian authorities over the full appointment of Swiss reserve Investigating Judge Laurent Kasper-Ansermet. Kasper-Ansermet appeared committed to moving the investigations forward, issuing an order to reopen the Case 003 investigation.

In January, Cambodia’s Supreme Council of the Magistracy declined to formally appoint Kasper-Ansermet, a move the UN stated was a breach of the ECCC Agreement. Kasper-Ansermet announced his own resignation in March, claiming that Bunleng had opposed investigations into Cases 003 and 004. In a subsequent ‘note’, Kasper-Ansermet claimed that Bunleng and other national court staff had thwarted his efforts to investigate, prompting a lengthy response from Bunleng refuting many of the allegations. The controversy has magnified concerns about whether alleged meddling and misconduct could taint the Court’s other cases.

In a letter to UN headquarters dated 27 March, lawyers for Case 002 defendants Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, and then officer-in-charge of the Defence Support Section Nisha Valabhji, requested the UN investigate the circumstances surrounding Kasper-Ansermet’s resignation and the manner in which decisions were taken in the Case 002 investigation. The note ‘sets out serious irregularities in the functioning of the ECCC and conduct that has the potential to prejudice the interests of the accused persons in Case 002’, the letter says.

In November, the Trial Chamber ruled that former Khmer Rouge Social Action Minister Ieng Thirith, 80, was unfit to stand trial, that the charges against her be severed from the Case 002 indictment and that she be released, after experts testified that she suffered from dementia ‘most likely’ caused by Alzheimer’s disease. A majority of the Supreme Court Chamber overturned the order to release Ieng Thirith on appeal in December, ruling that she undergo additional treatment pending an examination ‘no later than six months’ from the beginning of treatment, to determine whether she is fit to stand trial.

Nuon Chea’s co-defence counsel Michiel Pestman said in court in March that the integrity of the case file was ‘highly suspect’ also stating that ‘nothing sound, we maintain, can arise from such unstable groundwork’.

In a candid article on the ECCC for Jurist in December, Valabhji, who recently left the court, wrote that if an institution responsible for adjudicating alleged violations of international humanitarian law is subject ‘without doubt’ to government interference, ‘fair trial rights cannot be guaranteed in its proceedings’.


‘There are serious concerns about the ECCC judicial process’
Martin Nesirky
Spokesperson for UN Secretary-General, Ban Ki-moon

British co-prosecutor Andrew Cayley says he did not believe there were any allegations of misconduct specifically within Case 002, but that he had ‘shared the same concerns’ about the potential for other allegations to bleed into the case. ‘That’s why 003 and 004 have got to be properly addressed,’ he says.

Clair Duffy, a Phnom Penh-based tribunal monitor for the Open Society Justice Initiative, says there were ‘legitimate gripes’ about the fact that Bunleng – a judge against whom allegations of serious misconduct have been made – had investigated other cases. ‘The only way you’re ever going to address that in my opinion is by conducting some kind of inquiry and by allowing independent assessors to… decide to what extent, if any, it’s impinged on the accuseds’ rights in Case 002 to be tried by a fair and independent tribunal,’ she says.

Observers say the UN has moved too slowly to address the issues surrounding the two cases. Martin Nesirky, spokesperson for Ban Ki-moon, said in a recent statement there were ‘serious concerns about the ECCC judicial process in relation to Cases 003 and 004’, adding that Ban Ki-moon would initiate the selection of a new international investigating judge and reserve.

‘The Royal Government of Cambodia should afford the new international Co-Investigating Judge every assistance and full cooperation to carry out his or her functions,’ Nesirky says.

Rights groups have pressed the UN for an independent inquiry into alleged interference at the tribunal. ‘There’s a risk that a lot of the good work… could be undone by this message that’s coming out at the moment: that impunity will win through, and that political control will win through, unless what’s happening in 003 and 004 is addressed,’ Rupert Abbott says.

Agrarian utopia: 1.7 million deaths
After the Khmer Rouge marched victoriously into Phnom Penh in April 1975, they swiftly evacuated urban populations to the countryside. An estimated 1.7 million people died from execution, starvation, disease and overwork during the ensuing three years and eight months of Khmer Rouge rule, in the communist movement’s bid to transform Cambodia into an agrarian utopia.

The regime was ousted by Vietnamese troops in January 1979, though its remnants lingered – predominantly along the Thai-Cambodian border – before crumbling in the late 1990s. Due to the exigencies of Cold War geopolitics, the Khmer Rouge retained a seat in the General Assembly for years after they were toppled – in what observers consider a shameful chapter in UN history.

In 1997, Cambodia sought assistance from the UN and the international community to bring those responsible for atrocities under the Khmer Rouge to justice. Early disagreements during negotiations appear to have foreshadowed the current tensions at the court. In 2000, then-UN Secretary-General Kofi Annan sent Hun Sen a letter voicing a preference for chambers with a majority of foreign judges and an independent, international prosecutor and investigating judge. ‘[Cambodian Senior Minister Sok An] basically told the United Nations to take a hike,’ David Scheffer, recently appointed as Special Expert on UN Assistance to the Khmer Rouge Trials, wrote in his book, All the Missing Souls.

In 2002, the negotiations ground to a halt. Hans Corell, then-UN under-secretary for legal affairs and lead negotiator, said at the time that the court ‘as currently envisaged’ would not guarantee ‘the independence, impartiality and objectivity that a court established with the support of the United Nations must have’.

‘The breakdown in the investigations into Case Files 003 and 004 indicates that the process has failed in an important way’
Stuart Ford
Assistant professor, John Marshall Law School


However, some Member States pushed for a return to negotiations, and the parties eventually signed an agreement in 2003, which established a tribunal with a mandate to try ‘senior leaders of Democratic Kampuchea’ and those ‘most responsible’ for atrocities committed between 17 April 1975 and 6 January 1979.

The hybrid model was a compromise, consisting of a majority of Cambodian judges in each chamber and a blend of national and international personnel in each of the court’s various sections.

Provisions were woven into the ECCC agreement and law that legal experts say were intended to insulate the court from possible interference, such as ‘supermajority’ voting, which requires the assent of at least one international judge alongside national judges for a chamber to render a decision.
But the Court’s structure has nonetheless proven problematic. Corell recently wrote in a foreword for an upcoming book that the ECCC should have been ‘an international tribunal with a single prosecutor and a majority of international judges’.

Stuart Ford, assistant professor at the John Marshall Law School and an expert in international criminal law, says that the supermajority rule was intended to prevent Cambodian judges from effectively controlling the process without input from international judges. ‘The breakdown in the investigations into Case Files 003 and 004 indicates that the process has failed in an important way,’ he says.
‘In hindsight, it was naïve to expect that judges that are subject to political control in the national judiciary, who were handpicked by the national government… would not be subject to political interference while at the ECCC.’

Ford, a former ECCC assistant prosecutor, says that ‘co-leadership at all levels’ was problematic. ‘As we have seen with respect to Case Files 003 and 004, when the co-leaders disagree the court can be paralysed,’ he says.

Duffy says that while the Court’s structural safeguards may work to a degree, it was hard to conceive of suspects in Cases 003 and 004 being prosecuted without government cooperation. ‘It would need to be Cambodian police who arrested those individuals… [and] even presuming the indictments were ever transferred to the Trial Chamber you couldn’t get a conviction without the national judges,’ she says. ‘The national Co-Prosecutor, the national Co-Investigating Judge and every national judge on the Pre-Trial Chamber has ruled consistently along government lines on that issue.’
The ECCC is not the only war crimes court to adopt a hybrid model. One such example is the Special Court for Sierra Leone (SCSL) in Freetown, which differs crucially from the ECCC. ‘I think that you do see political leanings play out in some of the decision-making at the SCSL and it’s been criticised for that, but I think generally it’s been overcome by the fact that the majority of the judges are international,’ Duffy says.

Ford says that any future hybrid courts would likely be designed along the lines of the SCSL. ‘I don’t think that the UN or the international community will be in a hurry to create another court like the ECCC with co-leadership,’ he says.

Fair trial or no trial
As uncertainty over the Court’s financial state and the fate of Cases 003 and 004 casts a cloud over the institution, some have suggested that the UN should consider revisiting the terms of the ECCC Agreement or withdrawing from the Court entirely. ‘No trial can be better than a flawed trial,’ says Abbott of Amnesty International. ‘For the sake of ensuring that this tribunal meets international standards and for the sake of its own reputation, the UN has got to set out… what’s going to happen if political interference doesn’t stop, and ultimately withdrawal has to be one of the options.’
However, how the Khmer Rouge tribunal will be viewed by those to whom it arguably matters most – the victims – is difficult to know. ‘How do victims of Khmer Rouge atrocities feel about this process?’ says Duffy. ‘You need to measure it against whether the accused got a fair trial ultimately, but that’s the single greatest unknown to me.’

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Mary Kozlovski is a writer based in Phnom Penh.

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