The Extraordinary Chambers of Cambodia: Searching for Accountability for Khmer Rouge Atrocities

Vol. 43 No. 3

By

Matthew C. Kane is a member and director of Ryan Whaley Coldiron Shandy in Oklahoma City and an adjunct professor at the University of Oklahoma College of Law, where he teaches courses on war crimes tribunals and other international and federal criminal law issues. He is also involed with the ABA Center for Human Rights ICC Project, which works to increase U.S. engagement and cooperation with the International Criminal Court.

The Khmer Rouge hoped to obliterate our history, and in doing so, their songs have forged a significant place in it.

Sophiline Cheam Shapiro, from her essay, “Songs My Enemies Taught Me,” in Children of Cambodia’s Killing Fields: Memoirs by Survivors (1997))

Cambodia is a beautiful country, with fertile lands and vibrant traditions. Ancient innovators built Angkor Wat, the largest religious building in the world; Preah Vihear, situated high atop a cliff looking over miles of countryside; and Indravarman’s vast irrigation system, which allowed for rice production far beyond the typical production levels. Stories and poems of love and valor date back millennia, as do the Robam Tep Apsara and other traditional dances. Cambodian folk tales have passed from generation to generation, often featuring anthropomorphized creatures. Perhaps the most well-known is Judge Rabbit, a wise soul sought by the oppressed to mete out justice, often when the traditional legal system fails to do so. Yet, in other tales, he is a trickster, known for convincing the naive to do his bidding, sometimes to their ultimate demise.

When the Khmer Rouge took control of Cambodia from 1975 to 1979, the new regime actively sought to extinguish traditional practices, targeting artists along with professionals and intellectuals. The people and culture of Cambodia were nearly destroyed. The masses were forced out of the cities and into the rice fields. Everyone would be equal. In practice that meant that everyone (except the elites in the new regime) would lack the same basic necessities of life. Rice exports were to fund the country, even if it meant starving the population. Pol Pot and his supporters acted with alarming effectiveness to create their version of an ideal state. Approximately 1.7 million people, some 20 percent of the total population, lost their lives from starvation, execution, or torture under Khmer Rouge rule.

Justice has been slow in coming. Despite having been driven from power by 1979, the Khmer Rouge remained a dangerous faction, operating on the border between Cambodia and Thailand, albeit with decreasing potency. In 1997, the Cambodian government finally determined to bring the leadership of the Khmer Rouge to justice, requesting United Nations assistance in developing an international tribunal.

In All the Missing Souls: A Personal History of the War Crimes Tribunals, David Scheffer, former U.S. Ambassador-at Large for War Crimes Issues and the current U.N. Secretary General Special Expert on the United Nations Assistance to the Extraordinary Chambers of the Cambodia Courts (ECCC), describes in detail the lengthy and nuanced negotiations that led up to the creation of the ECCC in 2003 by way of a bilateral treaty between Cambodia and the United Nations. As the name suggests, the court was part of the Cambodian judicial system, thus incorporating a primarily civil law tradition, yet it involved a significant international presence. The ECCC has two co-prosecutors, co- investigating judges, and co-civil party representatives, one of each being Cambodian and the other an international assigned by the United Nations. Similarly, defendants are represented by at least one Cambodian and one international lawyer. Victims are given a much more prominent role than typically seen in common law courts and even other international tribunals. Provided victims can establish personal physical, material, or psychological injury as a direct consequence of the underlying offense of conviction, they may participate in the proceedings as civil parties represented by the lead co-lawyers (again one international and the other Cambodian).

The judges are also a blend of Cambodian and international jurists, with the trial chamber composed of three Cambodian and two international judges and the appeals chamber of four and three, respectively. A decision by either chamber requires a supermajority; thus, at least one international judge has to agree with any decision. Potential charges against surviving leadership of the Khmer Rouge and those most responsible for atrocity crimes and other violations of Cambodian law include international crimes—genocide, crimes against humanity, and grave breaches of the Geneva Conventions—as well as various domestic crimes.

The first case was limited to a single defendant: Kaing Guek Eav. As described in the trial chamber judgment, “Duch,” as he is widely known, was a former mathematics teacher who ultimately oversaw S21, an infamous detention center where over 12,380 detainees were tortured and killed. Through the course of the three-year trial, the prosecution established numerous facts regarding the conditions at S21. Executions were frequent and typically carried out by smashing the victim at the base of the neck with a metal bar and then slitting the victim’s neck or stomach. Pictures were taken of high-ranking detainee executions to prove to superiors that executions had been carried out. At least 100 detainees were killed by having their blood completely drawn to provide to soldiers wounded in battle against the Vietnamese.

Duch had personally overseen interrogation of the most important prisoners and, after an instance in which a detainee was executed prior to giving a full confession, he demanded he personally be consulted prior to any execution being carried out. He was found guilty of multiple forms of crimes against humanity, including extermination, enslavement, imprisonment, and torture, as well as grave breaches of the Geneva Conventions, including wilful killing, torture, and inhumane treatment. Originally sentenced to 35 years’ imprisonment less time served and a five-year reduction for his prior illegal confinement, on appeal, the sentence was increased to life in prison.

While a wide variety of reparations were requested, ranging from official government apologies to free health care to preservation of certain sites, the reparations awarded were extremely limited. The court refused to award many of the reparations because they would have imposed duties on the Cambodian government; other claims were too open-ended or insufficiently articulated. Ultimately, the reparations were limited to a finding that the civil parties named in the judgment had in fact suffered harm as a direct consequence of Duch’s actions and that all of Duch’s statements of apology and acknowledgments of responsibility would be compiled and published on the ECCC’s website.

The second case involves four high-level members of the Khmer Rouge. However, since the case’s initiation in 2011, Ineg Sary, deputy prime minister of Foreign Affairs, has died and his wife, Ieng Thirith, also a Khmer Rouge minister, was found unfit to stand trial. As a result, the only remaining defendants are Nuon Chea, known as “Brother Number Two,” reflecting his elevated status in the Khmer Rouge, and Khieu Samphan, former head of state of the Democratic Kampuchea. The health of the remaining defendants remains a constant issue.

The case took an unusual turn when the Trial Chamber entered a severance order determining that it would split the proceedings into several mini-cases. The first mini-case would cover crimes against humanity, including murder, extermination, persecution, forced transfer, and enforced disappearances to the extent they related to forced evacuations of cities, although it was later expanded to cover one particular mass execution site. The second mini-case would involve charges of genocide and grave breaches of the 1949 Geneva Conventions, focusing on policies relating to various security centers and execution sites, as well as treatment of targeted groups. The third would address atrocities related to cooperatives, work sites, and security centers not included in the prior mini-trials, among other issues. The subject of much controversy, the Trial Chamber entered an amended severance order in April 2014, which added substantially more to the second mini-case, including charges of forced marriage and rape, internal purges, treatment of Buddhists (at one particular site), and additional crime sites previously assigned to the third mini-trial.

Closing arguments in the first mini-case were completed in October 2013. A verdict is anticipated in the immediate future. Pretrial proceedings in the second mini-case are underway, with evidentiary hearings anticipated to commence in the second half of 2014. Given the age of the defendants, concerns remain as to whether the third mini-case will go forward. Regular updates of the proceedings are available from the Cambodia Tribunal Monitor (www.cambodiatribunal.org).

The ECCC has faced substantial criticism, much of it with at least some level of justification. The cost and pace of trials are a significant concern. While only Duch’s trial has been completed, the tribunal has estimated total expenditures of almost $210 million. While funding has long been an issue, monetary support, both within Cambodia and from outside sources, has been recently secured, ensuring the trials can avoid future financial crisis through 2015. Investigations for the third and fourth cases are in progress, although they will have to survive pretrial scrutiny (expected next year).

Despite these criticisms, however, the work of the ECCC is profoundly important. International courts will never try every perpetrator—that has never been the intent at any such tribunal, nor was it here. Rather, the goal is to focus on those most responsible, to bring them to trial and allow their victims to participate in efforts to bring those offenders to justice. Regardless of the number of cases ultimately concluded at the ECCC, the number of those tried will always be very small, as will be the number of victims who participate in the trials. Yet the ECCC brings a focus to this dark period in Cambodia’s history, making factual findings beyond a reasonable doubt regarding perpetrators of such acts, while, as described by the International Federation for Human Rights, affording civil parties “the most complete system of victim participation.”

Moreover, as the ECCC is part of the Cambodian legal system, it provides jurisprudence and practice applicable in other Cambodian courts. In January 2014, Michael Karnavas, a longtime American practitioner of international criminal law and former defense counsel of Ieng Sary, wrote in the Cambodian Law and Policy Review: “Through the ECCC, Cambodians are seeing how a court of law ought to function: parties are afforded the right to be heard; defense lawyers are openly and aggressively challenging the prosecution while also demanding to be heard by the judges; and rulings and decisions are for the most part transparently reasoned and subject to actual review.”

Some critics would seemingly suggest that the ECCC is less like Judge Rabbit and more like his alternative persona. However, while improvements can and should be made, even the most cursory review of the trial judgment in the Duch case proves the extraordinary value of the court. Much as Haing Ngor recalled in his autobiography that “nothing shaped [his] life as much as surviving the Pol Pot regime,” the history of Cambodia and its people has been forever affected by four years under the Khmer Rouge. In the jurisprudence of the ECCC, current and future generations will always have a resource, comprised of findings made beyond a reasonable doubt, that details the unimaginable horrors that occurred, the victims harmed, and the judgments meted out.

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