Cambodia’s UN-backed Trial of Former Khmer Rouge Leaders

An article by guest writer Dione Wang. Refer to “About the Writer” at the end of the post.

“Be careful, because Cambodia is the most dangerous place you will ever visit. You will fall in love with it, and eventually it will break your heart.” Joseph Mussomeli’s fatalistic warning rang in my ears on my flight to Phnom Penh. I turned the words over in my mind, and thought about the other aching, guttural passages in Joel Brinkley’s book Cambodia’s Curse: The Modern Story of a Troubled Land. Mussomeli had been the US ambassador to Cambodia from 2005 to 2008, witnessing three years of the country’s sprawling devastation; I was to spend three summer months in 2013 as an intern at the Khmer Rouge Tribunal assisting the Prosecution.

I first learned about the Khmer Rouge Tribunal (or, the ECCC — Extraordinary Chambers in the Courts of Cambodia) when the then international lead prosecutor Andrew Cayley QC gave a talk at my university about war crimes tribunals. Andrew spoke about a life largely given to prosecuting and defending men charged with committing mass atrocities, and being hesitant about commercial practice in a large firm, I was drawn by the stories of a more emotionally complex life grappling with questions of justice and human fallibility.

As I was to find out, the Khmer Rouge had murdered or were responsible for the death of nearly two million Cambodians — or one in every four — during its reign from 17 April 1975 to 7 January 1979. After the Vietnamese deposed Pol Pot, the Khmer Rouge leader, the nation was caught in the convulsions of a civil war which would not end until 1998 when the Vietnamese installed a puppet government. By this time the Khmer Rouge had been much weakened, holding on only to areas near the Thai border and supported by diamond and timber smuggling as well as military assistance from China and Thailand. Despite all of this, it retained its seat in the UN until 1993 with the support of many Western governments around the world. This sort of utilitarian manoeuvring, this hypocritical befriending of an enemy’s enemy clearly showed the one thing that could be fairly said of the whole debacle: no one had clean hands.

Supporters of Cambodia National Rescue Party (CNRP), the main opposition to the incumbent government. The party campaigns for freedom and human rights, and the institution of free and fair elections. (Photo credit: Henri Decoeur)

Supporters of Cambodia National Rescue Party (CNRP), the main opposition to the incumbent government. The party campaigns for freedom and human rights, and the institution of free and fair elections. (Photo credit: Henri Decoeur)

The international attention that is today heaped upon Cambodia first began when the UN occupied the fragile state in 1992, deploying 16,000 troops and 5,000 civil administrators to run the country for two years with a cost of $3 billion. It was the first and the last time the UN had such supreme ambitions. Nevertheless, — and perhaps because of the UN’s efforts — international aid would continue to pour in, albeit in a highly de-concentrated, rather uncoordinated manner. Hundreds of NGOs have been pouring human and monetary resources in an effort to contribute to the development process of Cambodia; today, Phnom Penh is somewhat of an NGO-land, crowded with aid workers slowly evolving the country’s administration, health, education, and rural development sectors. I rented an apartment with a Canadian sociology graduate student who had majored in development, and we lived around the corner from UNDP’s offices.

This saturation of expats also meant that despite the drastically different environment, life as a foreigner was easy — if inevitably coloured by guilt and frustration. I had a tuk-tuk driver who drove me everywhere, a hotel gym membership, the disposable income to go to the best restaurants in town. The average local, meanwhile, had to bear with the suffocating heat and dust each day on risky, potholed roads — if there were any traffic rules at all, they were decidedly ignored — and venture out to make a difficult living only to return home to a thatched hut that would flood every time it rained. I remember the first time it flooded — I was on the UN-chartered bus returning from work with all the other interns, and the usual hour’s commute over 16 km from the courtroom to town became a three-hour tour, from behind glass windows, of how people really lived. Sewage, rain, garbage, and mud mixed to form a brown river that reached a man’s knees; I was horrified, but young children were splashing in the streets, delighted by any chance to play. Joel Brinkley claimed in his book that per capita Cambodia is poorer than even North Korea; I could believe such a claim.

Frangipani outside Tuol Sleng (Photo credit: Henri Decoeur)

Frangipani outside Tuol Sleng (Photo credit: Henri Decoeur)

It was against this background, then, that the ECCC had been running for the last decade. While it was in 1997 that the Cambodian government requested the UN’s assistance in establishing a court to prosecute the leaders of the Khmer Rouge, the Tribunal was only formed in 2003. It is a hybrid court, with the judiciary, administration, and budget split between the Cambodian government and the UN. Like other hybrid courts (e.g. Special Court for Sierra Leone, Special Tribunal for Lebanon, and the Bosnian War Crimes Chamber) created after the 1990s, the architecture of the ECCC endeavored to respect national sovereignty, build capacity within the government and legal profession, and allow survivors the chance to find closure.

One prominent feature of this hybrid court — and the solution to many years’ disagreement between the UN and the Cambodian government with regard to a court structure — is that each judicial chamber has a majority of Cambodian judges, and a “super-majority” must be reached before a decision can be passed. Cases originate when the two Co-Investigating Judges (one Cambodian, one international) review facts set out in submissions from the Co-Prosecutors (again one Cambodian, one international) and decide to issue an indictment or a dismissal. Should there be an appeal, the Pre-Trial Chamber steps in; it consists of three Cambodian judges and two international ones, and requires an affirmative vote of at least four judges. Once a case proceeds to trial at the Trial Chamber consisting again of three Cambodian judges and two international ones, decisions similarly require an affirmative vote of at least four judges. Finally, appeals against Trial Chamber decisions are heard by the Supreme Court Chamber, which has four Cambodian and three international judges and requires an affirmative vote of at least five judges.

Tuol Sleng Genocide Museum (Photo credit: Wikimedia Commons)

Tuol Sleng Genocide Museum (Photo credit: Wikimedia Commons)

As can be imagined, judicial cooperation across national lines was a rarity. There were allegations from both sides of hidden agendas and impure motivations. Given that the government had been routinely accused of corruption by international NGOs and local media, politics became intimately connected to what was going on in the courtroom. Despair at this dysfunction was not uncommon, but it was accompanied by the acknowledgement that this was the only way the court could exist — and after all its existence mattered much to the Cambodian people.

Indeed, Cambodians from all over the country would come when the court was in session, some journeying for days in the chartered buses to witness the trial of men accused of unspeakable crimes. The Victims Support section of the ECCC also helps victims to participate as Civil Parties who are recognized parties to the proceedings able to seek collective and moral reparations. In Case 002 alone, there were over 3,700 Civil Parties from 24 provinces and 124 from overseas.

I worked in the Office of the Co-Prosecutors (OCP), staffed by roughly an equal number of Cambodian and international prosecutors and about one Cambodian intern (who would be one of the best law students in Phnom Penh) to every five international interns (who tended to be recent law graduates or young lawyers). Having secured in Case 001 the conviction of Duch — the former Chairman of the S-21 Security Centre (today a chilling genocide museum) — for crimes against humanity and grave breaches of the 1949 Geneva Conventions, the OCP was well into Case 002 by the time I started in the beginning of July. Case 002 put on trial Nuon Chea, the former Chairman of the Democratic Kampuchea National Assembly and Deputy Secretary of the Communist Party of Kampuchea, as well as Khieu Samphan, the former Head of State of Democratic Kampuchea. As a grim reminder of the time sensitivity of these trials, two other accused persons had already had proceedings terminated against them, one due to dementia at the age of 81 (Ieng Thirith) and the other death at age 88 (Ieng Sary). My supervisor, who had worked on Ieng Sary’s and then Ieng Thirith’s files, remarked dryly that he hoped his unlucky streak wouldn’t mean that work would dry up for me. Nuon Chea was 86 and Khieu Samphan 81.

About once every two weeks, it would be my turn to take notes in court and circulate digests of the day’s proceedings in the office. It was important to keep a sombre face in court no matter what the witness — or perhaps more pertinently, the defence — said: the live telecast of the trial online meant that interns frequently had family members curiously watching from thousands of miles away. And every now and then there would be a delightfully heated exchange between the prosecution and the defence — despite the civil law system, the courtroom felt more adversarial than any common law court I’ve been in.

Back in the office, my main job was to work on an annex of the Prosecution’s closing brief chronologising Khieu Samphan’s activities as head of state and thereby proving his responsibility for the mass atrocities committed by the Khmer Rouge regime. This involved combing through over 19,000 telegraphs, speeches, newspaper articles, letters, and other documents in our database. Most were translated into both English and French; I was and am still amazed at the amount of work already done to collect and archive these documents. Meanwhile, the Prosecution’s task was a daunting one that had a slightly frightening tinge of the surreal to it, in a way: constructing a man’s life from a mountain of papers in an attempt to pin him with certain responsibility for a country’s spilled blood and sentence him to lifelong imprisonment (never mind that he is 81). On the other hand, it seemed to all of us (at the OCP anyway) that it was painfully obvious that the accused persons were guilty — for how could they not be, with all these papers?

In reality, though, there was little time to grapple with these epistemological questions — there were always documents to be read, footnotes to be checked, emails to be dealt with. My respite came when I was asked to help with writing a speech the international prosecutor was going to give in Hong Kong about the importance of human rights and good governance. That task had little to do with the work of the OCP, but thinking about those questions reminded me why I was in Phnom Penh in the first place.

Outside of work I was too tired training for a triathlon and keeping in touch with people from back home to socialise very much, although I made a very good friend from (surprisingly) “across the aisle” interning for Nuon Chea’s defence team (who has kindly provided the photos in this article). In my free time I tried to absorb the city, starting of course by visiting the S-21 Genocide Museum (or Tuol Sleng) — a decidedly haunting place of skulls and shadows. Formerly a school, it was used during the Khmer Rouge regime as a detention and torture centre, with inmates cooped up in cells only a little wider than a man’s shoulders, waiting to be tortured and killed.

Tuol Sleng might be the only museum recollecting the past, but naturally much of Phnom Penh bears the scars from the horrifying years. Survivors and even their children suffer symptoms of PTSD, stories of haunted places — especially mass burial sites or other detention centers — abound, people find it difficult to trust each other after having been forced to betray their own family and friends, and, most achingly, foreigners exploit the nation’s poverty. Paunchy middle-aged men would be seen strolling about with girls younger than their daughters, always quick to retort that a job in a garment factory would be much worse — and it is. In my last few weeks, garment workers were peaceably demonstrating for fairer wages when police cracked down heavily and turned the protest violent. The street I was living on was barricaded with barbed wire fences, and the roads leading to the Prime Minister’s house — a showy mansion in the heart of town — were all closed to traffic. By the time I left, the elections had been held and naturally the incumbent party won.

Tuol Sleng Genocide Museum (Photo credit: Wikimedia Commons)

Tuol Sleng Genocide Museum (Photo credit: Wikimedia Commons)

Although the summer I spent in Phnom Penh felt like a tumultuous time then, a year has since quietly slipped by without my dwelling on those months. The boundless idealism and visceral frustration have given way to a melancholic stoicism, although in recent months I received an email which made me happy: an acquaintance wanted me to speak to his friend who was going to Phnom Penh to get involved in the burgeoning social entrepreneurship scene. Suddenly out of the relentless poverty, corruption, and exploitation I remembered the young people there, as young people are like everywhere, hold much promise — they’re eager, well-informed, and hungry for change. Perhaps, then, Joseph Mussomeli should have not so much cautioned against vulnerability, as against deadening one’s heart to a country just coming to life again.

About the Writer

The writer is an enthusiastic cyclist moonlighting as a law student. She aspires to work in a human rights-related field, and at some point take a second degree in philosophy.

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