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1. Introduction JOBNAME: Jorgensen PAGE: 1 SESS: 8 OUTPUT: Mon Mar 26 12:11:37 2018 1. Introduction 1. CAMBODIA TODAY As the story goes, the boundary of Phnom Penh was extended westwards to ensure that the former military complex housing Cambodia’s solution to the problem of impunity for the crimes of the Khmer Rouge era would be considered part of the capital city as required under the Law establishing the Extraordinary Chambers in the Courts of Cambodia (ECCC).1 More than a good story, this extension of the city’s limits was formalised in a Royal Decree on the border modification between the Municipality of Phnom Penh and Kandal Province, integrating the villages of Phum Ang, Phum Odem, Phum Angkeo and Phum Prey Svay into Chomchao commune, Dangkor district, Municipality of Phnom Penh.2 The ECCC is not far from the centre of Phnom Penh as the crow flies, being located some kilometres further along National Road 4 from what used to be called Pochentong International Airport, now simply Phnom Penh International Airport. In real terms, navigating overloaded motor- bikes and lorries on poor roads, which are often flooded in the rainy season, turns each journey there and back on the buses that ferry staff members to and from work into an adventure of an hour or more. It certainly feels as if the ECCC is out of town. After the bottleneck around a lively market, the traffic eventually eases and the approach to the Court complex is lined by rows of newly built, similarly styled houses. The 1 Law on the Establishment of the Extraordinary Chambers, with inclusion of Amendments, NS/RKM/1004/006, 27 October 2004, Article 43 new: ‘The Extraordinary Chambers established in the trial court and the Supreme Court Chamber shall be located in Phnom Penh’ (‘ECCC Law’); ‘The address of the ECCC changed’, ECCC, 29 July 2006, <https://www.eccc.gov.kh/en/articles/ address-eccc-changed> [accessed 3 June 2017]: ‘The address of the Extra- ordinary Chambers in the Courts of Cambodia changed following the issuance of a Preah Reach Kret (Royal Decree) on extending the boundary of the Municipal- ity of Phnom Penh’. 2 Preah Reach Kret (Royal Decree) on Border Modification between Municipality of Phnom Penh and Kandal Province, NS/RKT/0706/329, 29 July 2006. 1 Nina H.B. Jørgensen - 9781784718077 Downloaded from Elgar Online at 09/27/2021 09:05:33AM via free access Columns Design XML Ltd / Job: Jorgensen-Elgar_Companion_to_the_Extraordinary_Chambers / Division: 01Chapter1 /Pg. Position: 1 / Date: 15/3 JOBNAME: Jorgensen PAGE: 2 SESS: 5 OUTPUT: Mon Mar 26 12:11:37 2018 2 The Extraordinary Chambers in the Courts of Cambodia palatial spirals of the rooftops that to the uninitiated give the ECCC buildings the semblance of a temple eventually come into view. An ornamental moat populated by waterlilies separates the main staff entrance from the marshland beyond. There is no physical indication that the Court buildings belong to the regular Cambodian criminal justice structure. Rather, the ECCC appears as a juridical island. Back in the city centre, the notorious Toul Sleng or S-21 prison, once a school and now a museum, is an enduring and visible symbol of the horrors of the Khmer Rouge reign. Tourists, groups of students and foreign officials often combine a visit to S-21 with a trip to the nearby ‘killing fields’ of Choeng Ek, a haunting yet peaceful marker of Cam- bodia’s return to ‘Year Zero’. Attending a hearing at the ECCC can these days be added to the itinerary, where albeit late, and albeit in some respects faltering, the wheels of justice began turning in 2006. At the start of the ECCC’s operations, five of the primary ‘candidates for prosecu- tion’3 were successfully gathered, including Kaing Guek Eav, or ‘Duch’, formerly the head of S-21, and members of the Khmer Rouge party leadership and government allegedly most responsible for the ‘killing fields’, namely Nuon Chea (so-called ‘Brother No. 2’), Ieng Sary (former Foreign Minister), Khieu Samphan (former Head of State) and Ieng Thirith (former Minister of Social Affairs and wife of Ieng Sary). While Ieng Sary and Ieng Thirith have since passed away, final convictions have been entered against the remaining three defendants and a second trial against Nuon Chea and Khieu Samphan is in progress. The judicial investigation against Ao An was concluded in December 2016 while the investigation against Yim Tith remained open. Meas Muth who allegedly held a position of influence within the Revolutionary Army of Kam- puchea and was commander of the Democratic Kampuchea Navy is also under investigation. The case against Im Chaem, allegedly secretary of Preah Net Preah District in the North-West Zone, was dismissed at the conclusion of the judicial investigation in February 2017. Now more than ten years old, the ECCC has shown remarkable resilience despite an almost constant bombardment of legal, political and practical obstacles, represented symbolically by nature’s revenge in the form of extensive rains which flooded the Court complex so operations were temporarily stalled in 2016. There is little doubt that time is running 3 See S. Heder and B. Tittemore, Seven Candidates for Prosecution: Accountability for Crimes of the Khmer Rouge (War Crimes Research Office and Coalition for International Justice, June 2001) <http://www.wcl.american.edu/ warcrimes/khmerrouge.pdf?rd=1> [accessed 3 June 2017]. Nina H.B. Jørgensen - 9781784718077 Downloaded from Elgar Online at 09/27/2021 09:05:33AM via free access Columns Design XML Ltd / Job: Jorgensen-Elgar_Companion_to_the_Extraordinary_Chambers / Division: 01Chapter1 /Pg. Position: 2 / Date: 5/2 JOBNAME: Jorgensen PAGE: 3 SESS: 5 OUTPUT: Mon Mar 26 12:11:37 2018 Introduction 3 out if justice for the victims, perpetrators, Cambodian society and the international community is to be fully achieved. The purpose of this introductory chapter is to situate the ECCC within the context of relevant developments in Cambodian history in order to explain the Court’s mandate and evolution and to allow a proper assessment of its success. This brief narrative recognises that while Cambodia’s history is well-known, there is no single version of events, and that the ECCC is itself using the lens of justice to construe the history of the Khmer Rouge period. Criminal justice is essentially backward-looking in that it attempts to uncover the truth of past events as circumscribed by the individualised focus of the criminal process. The workings and revelations of a trial permit new interpretations, under- standings and truths to be derived and extracted from the testimony, transcripts and judgments. This chapter also gives a nod to the future where the ECCC’s potential legacy will be felt. 2. CAMBODIA YESTERDAY 2.1 The Angkor Period of Greatness David Chandler’s A History of Cambodia has been commended for illuminating the culture, politics and history of ‘a country long misunder- stood’.4 Apparently Cambodia misunderstood or at least failed to appre- ciate the significance of its own ancient history of Angkor until it was brought back to life in all its grandeur by the French colonialists.5 Today, the period spanning 802 to 1431 is considered Cambodia’s ‘period of greatness’6 when the country thrived under successive kings. The most revered of these ancient kings is Jayavarman VII who came to power in 1182–83 after defeating the Chams following their 1177 invasion of Cambodia.7 Jayavarman VII broke with the Hindu tradition and instituted the idea of Buddhist kingship which survived until 1970.8 Thanks to the account by Zhou Daguan, a Chinese envoy to Cambodia in 1296–97, something is known of the life and customs during the Angkor period. The king, who embodied a sense of just rule, was the point of reference 4 D. Chandler, A History of Cambodia (4th edn, Chiangmai, Silkworm Books, 2008), back cover blurb. 5 Ibid, p. 2. 6 Ibid, p. 35. 7 Ibid, pp. 69–70. 8 Ibid, pp. 67–8. Nina H.B. Jørgensen - 9781784718077 Downloaded from Elgar Online at 09/27/2021 09:05:33AM via free access Columns Design XML Ltd / Job: Jorgensen-Elgar_Companion_to_the_Extraordinary_Chambers / Division: 01Chapter1 /Pg. Position: 3 / Date: 5/2 JOBNAME: Jorgensen PAGE: 4 SESS: 5 OUTPUT: Mon Mar 26 12:11:37 2018 4 The Extraordinary Chambers in the Courts of Cambodia for disputes between ordinary people and dispensed royal punishments ranging from fines to the amputation of noses, fingers or toes in respect of the most serious offences.9 Adultery, theft and disputes between families came under a separate regime and might involve waiting for a ‘judgment of heaven’ (or, in more pressing cases, sending the disputants into a crocodile pool where the one in the wrong would be eaten), or plunging a suspected thief’s hand into boiling oil with guilt being confirmed by the inevitable scalding.10 Evidence in the form of Buddhist statuary and inscriptions suggests that Angkor Wat—the major temple in the Angkor complex—remained active between the fifteenth and nineteenth centuries and was never abandoned.11 Indeed, when the French arrived they found a thriving Buddhist monastery and hundreds of slaves inside the temple.12 2.2 Colonisation and Independence After the Angkor period, Cambodia’s centre of gravity began to shift towards Phnom Penh and the country became more vulnerable to outside interference, especially from Thailand and Vietnam. By the 1800s Cambodia was in a situation of ‘dual dependency’ on these two powers causing King Duang (who in fact enjoyed relative independence during his reign from 1848 until his death in 1860) to reach out to France for protection against the Vietnamese.13 Cambodia became a French protec- torate in 1863 and France steadily consolidated its control, despite a rebellion in 1885 and King Norodom’s attempts to block reform.
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