Illiberal Transitional Justice: The Extraordinary Chambers in the Courts of Cambodia
Rebecca Anna Gidley
A thesis submitted for the degree of Doctor of Philosophy of The Australian National University
November 2016
© Copyright by Rebecca Anna Gidley 2016
All Rights Reserved
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The work presented in this thesis is, to the best of my knowledge, my own work except as acknowledged in the text. The material has not been submitted, either in whole, or in part, for a degree at this or any other university.
Rebecca Gidley
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Acknowledgements
I have received help, guidance, and support from many sources over the course of this thesis journey and I gladly acknowledge many of them here.
First and foremost I must thank Professor Robert Cribb for his probing comments that challenged me to write with clarity and precision, for always interesting conversations, and for the fact that I always left his office feeling better about my thesis. I am grateful to Dr Tyrell Haberkorn for always being enthusiastic and inspiring about the writing process and many other things. Her involvement helped me to consider more deeply the principles and concepts that underpin my research. Dr Ross Tapsell also stepped in at a challenging time near the end of my thesis and I thank him for making this process as smooth as possible. For her help navigating the ANU administrative maze I am indebted to Jo Bushby.
During my fieldwork I benefitted from generous engagement with my project from formal interviews through to incidental conversations. I am grateful to everyone with whom I had such fruitful conversations, whether they can be named in this thesis or not. The staff at the Documentation Center of Cambodia assisted with access to important documents. Dr Steve Heder unstintingly provide documents and contacts during my time in Phnom Penh. I have benefitted greatly from immensely patient Khmer teachers: Sam Samnang, Chanroeun Pa, Soda Sea, Y Socheat, and all the staff at LINK. They were kind enough to only occasionally laugh at my mispronunciations of their beautiful language. Y Socheat also assisted with the translation of some documents used in this thesis, helping me to develop the unusual set of vocabulary I needed for this work.
The history writing group at ANU’s School of Culture, History and Language has been a bastion of intellectual support. I am grateful to Chris Park, Bryce Kositz, Mark Jones, Judith Pabian, Lina Koleilat, Andre De Lisle, Yu-Hua Chen, Qin Yang, Orion Lethbridge, and Dr Philip Taylor for having read chapters of this thesis. They have helped me to improve my structure and argument in a reassuring environment. Professor David Chandler also kindly offered to read several of the central chapters and provided fast and encouraging feedback. I gratefully acknowledge the editorial input of Maxine McArthur from the School of Culture, History, and Language. iv
I am particularly indebted in the final stages of my thesis to Joyce Das who has been the most reliable and positive thesis companion I could have asked for to help me cross the finish line. Attempting to list all those friends who have provided emotional support, welcome distractions, or joyous moments is daunting but I am privileged to thank: Ellen, Ruth, CC, Joyce, Lina, Bec, Chris, Bruma, Fabian, Dario, Fa, Annie, Ros, Jodie, Maria, Evi, Orion, Judith, Meg, Keren, Kate, Maureen, Jess, Jesse, and Christine. I am grateful for the love and support of my family and for the warmth (literal and figurative) of my escapes to Brisbane to visit them. Finally I would like to thank all those who have, in any capacity, had the patience to teach me. v
Abstract
The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by an agreement between the Cambodian government and the United Nations with a mandate to put Khmer Rouge leaders on trial for crimes committed during their 1970s regime. Judicial responses, such as the ECCC, to periods of mass violence have been termed transitional justice since the 1990s. Although the definitions of transitional justice are very broad, the explanations and analyses offered by the literature contain implicit assumptions that transitional justice is being implemented as part of a transition towards liberal democracy. In this thesis I use the case of Cambodia to challenge these assumptions and propose a new category of illiberal transitional justice.
Before the creation of the ECCC began, the Cambodian government had spent nearly two decades shaping the narrative of the Khmer Rouge period to suit its political interests. When the United Nations became involved in discussions for a Khmer Rouge tribunal the government was concerned to protect itself and this narrative. The negotiations took place over six years where both sides competed for control over the mechanism. This competition for control was then transferred to the national and international sides of the court once the ECCC became operational. Although all actors involved in the ECCC frequently invoked the language of procedure, in practice procedures were easily dismissed if they were inconvenient. Given this discussion of the ECCC’s establishment and operation, I consider the court in light of the expectations of the transitional justice literature. The ECCC was not adhering to the assumed outcomes regarding ending impunity, building the rule of law, or strengthening democracy, and instead these changes were being actively impeded by the Cambodian government. Rather than pursuing these expected goals the Cambodian government was using the ECCC to enhance its international legitimacy and to strengthen its domestic political control.
I argue that the ECCC should be considered an archetypal example of illiberal transitional justice. Cases of illiberal transitional justice sit on a spectrum between liberal transitional justice, which currently dominates the literature, and cases of transitional justice employed by repressive regimes, which are largely ignored in the literature. The ECCC, as a case of illiberal transitional justice, sits on the boundary between legitimacy vi and illegitimacy. The court maintained its legitimacy through the ongoing UN involvement and adherence to the language of procedure, but this legitimacy was challenged by the political interference of the Cambodian government in the court’s operation. Illiberal transitional justice is a different conception of what the rules are, how important they are, and when they are important. In this thesis I challenge existing assumptions and analyses of transitional justice to create a more nuanced understanding of how and why transitional justice mechanisms are employed. vii
Table of Contents
Acknowledgements ...... iii
Abstract ...... v
Table of Contents ...... vii
Abbreviations ...... xi
Introduction ...... 1
Contextualising the ECCC ...... 2
The Extraordinary Chambers in the Courts of Cambodia ...... 6
Bucking the Liberal Democratic Trend ...... 11
Scope and Sources ...... 13
Illiberal Transitional Justice ...... 15
Outline of the Thesis ...... 17
Chapter One – The State of Transitional Justice ...... 21
Origins ...... 22
Definitions ...... 24
Legalism and Realism ...... 26
Questions Posed ...... 28
Assumptions Made...... 30
Filling the Illiberal Gap ...... 33
Timing ...... 35
Post-Transitional Justice ...... 37
Journeys ...... 39
Conclusions ...... 40
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Chapter Two – Confronting the Past, 1979-1996 ...... 43
The Crimes of Democratic Kampuchea ...... 44
Building a Narrative ...... 56
Tuol Sleng Museum of Genocidal Crimes ...... 60
People’s Revolutionary Tribunal ...... 62
The Renakse Petitions ...... 70
Performing and Educating ...... 73
Misled Persons Movement ...... 76
Forging Peace ...... 78
Defections ...... 82
Conclusions ...... 84
Chapter Three – Negotiating the Mechanism 1997-2003 ...... 85
The 1997 Letter ...... 86
Hun Sen Seizes Power ...... 89
American Efforts ...... 92
Within the Khmer Rouge Movement ...... 94
Final Defections ...... 96
The Group of Experts Report ...... 99
Defining the Hybrid Model ...... 101
The UN Withdraws ...... 115
Conclusions ...... 119
Chapter Four – The ECCC in Action ...... 121
Approving the Agreement ...... 122
Corruption...... 129
Case 001 ...... 134
Case 002 ...... 138
Disqualification Motions ...... 138 ix
Pre-Trial Issues ...... 140
Trial Stage ...... 142
Involving the CPP ...... 146
The Verdict ...... 150
Cases 003 and 004 ...... 152
Outreach and Victims ...... 163
Conclusions ...... 169
Chapter Five – Breaking the Mould: Cambodia and the Transitional Justice Literature ...... 171
Ending Impunity and Creating Deterrence ...... 172
Rule of Law ...... 179
Promoting Democracy ...... 185
Justice and Healing ...... 188
Procedural Justice ...... 189
Substantive Justice ...... 193
Truth ...... 197
Reconciliation ...... 199
Personal Healing ...... 201
Conclusions ...... 202
Chapter Six – Comparing, Distinguishing, and Explaining Cambodia...... 205
International Comparisons ...... 206
African Truth Commissions ...... 206
Uzbekistan ...... 210
Bangladesh ...... 212
Rwanda ...... 215
Distinguishing Cambodia ...... 219
Explaining Cambodia ...... 224
Benefits ...... 225 x
Constraints ...... 232
Conclusions ...... 242
Conclusion ...... 245
Bibliography ...... 255
Monographs, Journal Articles, and Book Chapters ...... 255
Newspaper and Online Articles ...... 265
Documents and Reports ...... 278 xi
Abbreviations
BAKC Bar Association of the Kingdom of Cambodia
CCHR Cambodian Center for Human Rights
CGDK Coalition Government of Democratic Kampuchea
CNRP Cambodian National Rescue Party
CPK Communist Party of Kampuchea
CPP Cambodian People’s Party
DC-Cam Documentation Center of Cambodia
ECCC Extraordinary Chambers in the Courts of Cambodia
IBA International Bar Association
ICT International Crimes Tribunal (Bangladesh)
ICTJ International Center for Transitional Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
KPRP Kampuchean Peoples’ Revolutionary Party
OSJI Open Society Justice Initiative
PRK People’s Republic of Kampuchea
PRT People’s Revolutionary Tribunal
RPF Rwandan Patriotic Front
UN United Nations
UNDP United Nations Development Programme
UNTAC United Nations Transitional Authority in Cambodia
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Introduction
“That’s not important” is hardly the response a researcher arriving to do fieldwork wants to hear. And yet it was the most common response I received when I explained what I was doing in Phnom Penh. I was there to research the Khmer Rouge tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC). During my fieldwork, and at the time of writing, the ECCC was operating on the outskirts of Phnom Penh, putting on trial the aging leaders of the Democratic Kampuchea regime that controlled Cambodia from 17 April 1975 to 6 January 1979. But Cambodian friends, teachers, drivers, vendors, and many others were dismissive of the court, whether they had lived through the Khmer Rouge period or been born after it.
The ECCC was not important to them, or not anymore. It was nearly two decades after the Khmer Rouge regime had been overthrown that talk about a trial became realistic and another decade before the ECCC was operational. Yet another decade later the trials were still going on. What interest the creation of the ECCC had generated had long since dissipated. In telling me that it was not important, everyone had a slightly different explanation. I would be told that corruption was more important, or education, or poverty, or electoral reform. They mentioned a range of important issues, but not justice for the Khmer Rouge era, or at least not in the form of the ECCC.
There were exceptions. International legal interns were amongst the most enthusiastic of them. The people I wanted to interview were those engaged in the process: former and current staff at the court, government advisors, and NGO staff in related fields. They could help me understand the ECCC’s creation and its operation. But a clear divide existed between a small group of engaged people, and a broader disinterested public. Even though there is an instinctual idea, and one promoted by justice advocates, that trials such as those brought before the ECCC are for the victims, many victims remained indifferent.
The ECCC is an example of what is known as transitional justice: the institutional responses to the legacy of human rights violations and mass atrocity crimes. It is a term, and a field of scholarship, born of democratising processes of the late 1980s and early 1990s. Ideas of transitional justice continue to be deeply influenced by this original context. The literature is permeated with assumptions that liberal democracy is the 2 natural end state of a transition, and that transitional justice is a tool to arrive at that destination, although these assumptions are rarely acknowledged explicitly. These assumptions obscure the varied possible transitions and the broad range of impacts transitional justice can have, neither of which are necessarily linked to liberal democracy.
The ECCC is an instructive example of transitional justice because it combines contrasting elements. Discord is built into the nature of the ECCC. It is a hybrid court that combines international and domestic elements in precise, but often conflicting, arrangements. There is discord between the expectations of the transitional justice literature and the outcomes being observed at the ECCC. There is discord between the rhetorical importance placed on procedure and the ease with which it is discarded when it is inconvenient. And there is discord between the liberal democratic aspirations ascribed to transitional justice and the blatantly illiberal Cambodian government.
My approach in this thesis is to use the case of Cambodia to propose a new understanding of transitional justice that allows space to consider these discords as a central element of certain types of transitional justice mechanisms. I ask how and why the ECCC was created. I look backwards to the precedents of how the Cambodian government has approached the legacy of the Khmer Rouge regime before the ECCC. And I look forward from the creation of the ECCC to its operation and the implications it has for understanding why the court was created. In doing so, I use the example of Cambodia and the ECCC to pose questions about the transitional justice literature, and to challenge the prevailing liberal assumptions within that literature. In response to the problems the ECCC highlights within the field of transitional justice, I propose to label it an example of illiberal transitional justice, which combines the appearance of adherence to liberal values with the reality of government control.
Contextualising the ECCC
The Khmer Rouge took control of Phnom Penh on 17 April 1975 and swiftly began to empty the city. Urban residents were forced into rural collectives as part of the communist reimagining of the country. In the subsequent three years, eight months, and twenty days, 1.7 million people died through a combination of execution, torture, overwork, disease, and starvation.1 The highly paranoid Khmer Rouge leadership instituted broad purges amongst its own ranks. It was ex-Khmer Rouge members who
1 Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the Khmer Rouge, 1975-1979, 2nd ed. (New Haven: Yale University Press, 2002), 456-60. 3 had fled these purges, with the military support of the Vietnamese army, who overthrew the Khmer Rouge in early 1979.
Works that discuss the ECCC provide at least a cursory description of the Khmer Rouge. The same is true of any transitional justice mechanism; an understanding of the nature of the crimes committed informs discussions of the response to them. Yet so often there is a temporal hole in the narrative that is told about transitional justice. The period of mass atrocities or human rights violations are covered, and then the narrative jumps to either the creation or the operation of the transitional justice mechanism itself. In some countries there may be very little gap between the commission of crimes and redress for them. In others it could be decades. In the case of transitional justice-based discussions of Cambodia and the ECCC, the narrative will often jump from the 1979 overthrow of the Khmer Rouge to either 1997 when the Cambodian government requested UN assistance to conduct a trial or the 2006 establishment of the ECCC.
The context in which the ECCC was negotiated, established, and now operates cannot be understood without a consideration of events from 1979 to the 1990s. When decisions of space are made, at least in the case of Cambodia, transitional justice scholars prioritise the periods of international engagement. Accordingly, the 1980s when Cambodia was internationally isolated from all but the Soviet-bloc are often missing from stories of the ECCC. This is not to say that there is no significant scholarship on Cambodia during this time, but that it is rarely framed in terms of transitional justice. I build on the work of many Cambodia experts to bring the case of Cambodia to the transitional justice literature. Helen Jarvis, David Scheffer, and Thomas Hammarberg have written accounts of the negotiations from insider perspectives.2 Academic analyses have included the works of David Chandler, Steve Heder, and Craig Etcheson written during or soon after the negotiations.3 John Ciorciari and Anne Heindel have written extensively on the
2 Tom Fawthrop and Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal (Sydney: University of New South Wales Press, 2005); David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton: Princeton University Press, 2012); David Scheffer, "The Negotiating History of the ECCC's Personal Jurisdiction," Cambodia Tribunal Monitor, http://www.cambodiatribunal.org/_archived- site/blog/2011/05/negotiating-history-eccc%E2%80%99s-personal-jurisdiction, 22 May 2011; Thomas Hammarberg, "How the Khmer Rouge Tribunal was Agreed: Discussions Between the Cambodian Government and the UN," Searching for the Truth June-November (2001). 3 David Chandler, "Will There Be a Trial for the Khmer Rouge?," Ethics and International Affairs 14, no. 1 (2000): 67-82; David Chandler, "Cambodia Deals with its Past: Collective Memory, Demonisation and Induced Amnesia," Totalitarian Movements and Political Religions 9, no. 2 (2008): 355-69; Steve Heder, "Hun Sen and Genocide Trials in Cambodia: International Impacts, Impunity, and Justice," in Cambodia Emerges from the Past: Eight Essays, ed. Judy Ledgerwood (DeKalb, Illinois: Southeast Asia Publications, Center for Southeast Asian Studies, Northern 4
ECCC’s structure and its outcomes.4 Alexander Hinton is one of the few scholars of Cambodia to frame his analysis of the ECCC explicitly in terms of the transitional justice literature.5 I also focus significantly on previous ways the government has addressed the legacy of the Khmer Rouge, and in doing so I draw on Evan Gottesman’s work on the 1980s, and Judy Ledgerwood’s and Rachel Hughes’ work on memorialisations.6
The post-Khmer Rouge Vietnamese-backed government, the People’s Republic of Kampuchea, instituted two transitional justice mechanisms in the years after it took power. The first, the People’s Revolutionary Tribunal, found Khmer Rouge leader Pol Pot and his foreign minister Ieng Sary guilty of genocide and sentenced them to death in absentia in 1979. The second mechanism is known as the Renakse petitions; Cambodians wrote narrative statements about harms suffered during the Khmer Rouge regime and expressed their support for the new government. Although it was labelled a historical research commission at the time, the process also had elements that resembled a truth commission. Neither has been labelled a transitional justice mechanism in the literature; the term did not exist at the time and has not been retroactively applied. Both mechanisms have generally been dismissed by scholars because they did not adequately disguise their political purposes and were instituted by a government that was not internationally recognised at the time. Although not acknowledged as transitional justice mechanisms, they are important precedents to the ECCC and show how the government has positioned itself in relation to the Khmer Rouge past.
Throughout the 1980s the United States, China, their allies, and therefore the United Nations, continued to recognise the Khmer Rouge as Cambodia’s legitimate representatives. The Cambodian government established its idea of the state, civil
Illinois University, 2002), 176-223; Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport: Praeger, 2005). 4 John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor: University of Michigan Press, 2014); John D. Ciorciari and Anne Heindel, "Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal," Michigan Journal of International Law 35, no. 2 (2014): 101-76; John D. Ciorciari and Anne Heindel, eds., On Trial: The Khmer Rouge Accountability Process (Phnom Penh: Documentation Center of Cambodia, 2009); John D. Ciorciari, ed. The Khmer Rouge Tribunal (Phnom Penh: Documentation Center of Cambodia, 2006). 5 Alexander Hinton, "Uncle San, Aunty Yan, and Outreach at the Khmer Rouge Tribunal," in Genocide and Mass Atrocities in Asia: Legacies and Prevention, ed. Annie Pohlman and Deborah Mayersen (New York: Routledge, 2013), 86-98. 6 Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (New Haven: Yale University Press, 2003); Judy Ledgerwood, "The Cambodian Tuol Sleng Museum of Genocidal Crimes: National Narrative," Museum Anthropology 21, no. 1 (1997): 82-98; Rachel Hughes, "Memory and Sovereignty in Post-1979 Cambodia: Choeung Ek and Local Genocide Memorials," in Genocide in Cambodia and Rwanda: New Perspectives, ed. Susan E. Cook (New Brunswick: Transaction Publishers, 2006), 257-79. 5 service, the judiciary, and the relationship between each of these during the 1980s. This period of international isolation accustomed the Cambodian authorities to separation from the international community.7 During this period, too, the government developed and cemented its narrative of the Khmer Rouge period and instituted strategies to bring an end to the Khmer Rouge movement.
The UN mission of the early 1990s allowed Cambodia’s rehabilitation as a member of the international community. It marked major changes including the end of international acceptance of the Khmer Rouge and an influx of aid for the country. But much remained the same: the government of the 1980s reconstituted itself as the Cambodian People’s Party (CPP) and despite not winning the election managed to hold on to most state power. The UN had been tasked with separating the CPP from the state bureaucracy but had failed to do so. The process of the election was accepted as free and fair but the actual substantive outcome reflected existing power balances more than it did the election results. This election outcome went on to shape how the UN and the Cambodian government interacted about a tribunal. Crucially, the government had learnt that legitimacy could be maintained with minimal risk to actual power as long as rules and procedures appeared to be observed.
These patterns were then replicated or built upon in the creation and operation of the ECCC. The model of the ECCC was constructed over six years of negotiations between the Cambodian government and the UN Secretariat, with occasional interventions from foreign government officials. I detail and analyse these negotiations in Chapter Three. The negotiation period was primarily characterised by a competition for control over the conduct and outcome a court would have. Each side (and it is telling that the Cambodian government and the UN can be considered sides of a dispute in this context) wanted the judges they appointed to be in the majority and hence to shape the outcomes of the ECCC. The Cambodian government was able to push for a hybrid model with an unprecedented domestic majority. The resulting structure is unlikely to be repeated anywhere else both because it emerged from a specific geopolitical context and because the experience in Cambodia means the UN is unlikely to agree to a similar model in the future.
7 The term “international community” is often used to imply a worldwide consensus that does not exist. I use it sparingly in this thesis to refer to the mostly Western liberal democratic states that consider themselves to constitute the international community, and to have the associated power of determining the legitimacy and acceptance of other states into this community. 6
The Extraordinary Chambers in the Courts of Cambodia
The ECCC was established with a mandate of “bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979”.8 The structure of the court and much of its operation were laid out in an agreement between the United Nations and the Cambodian government and in a domestic Cambodian law establishing the ECCC. Aspects of how the ECCC would operate were then clarified or created by the internal rules which were negotiated by international and Cambodian judges over the course of nearly a year. Both the judicial and administrative functions of the court are split amongst Cambodian and international staff.
The ECCC consists of three Chambers: Pre-Trial, Trial, and Supreme Court. The Pre-Trial and Trial Chambers each comprise five judges, three Cambodian and two international, and the Supreme Court Chamber comprises seven judges, four Cambodian and three international. The President of each chamber is a Cambodian judge. In an attempt to balance the power of the international and national judges a supermajority voting rule was instituted. A decision of the Pre-Trial or Trial Chambers requires the vote of four out of five judges, and at the Supreme Court Chamber five out of seven judges, which ensures each decision is made with the assent of at least one international judge.
There are Co-Prosecutors, one Cambodian and one international, and similarly two Co- Investigating Judges. The Co-Investigating Judges, a role present in the Cambodian legal system which is based on the French model, are tasked with investigating the submissions made by the Co-Prosecutors in an impartial manner and deciding whether the suspects fall within the personal and subject matter jurisdiction of the court and then whether the person should be indicted and sent to trial or whether the case should be dismissed. If there is a dispute between the Co-Prosecutors or the Co-Investigating Judges about how to proceed, the Pre-Trial Chamber adjudicates. A supermajority vote is required to block an action (such as an investigation) and therefore the default assumption is that the action will proceed when the national and international prosecutors or investigating judges disagree. Although resolving these disputes was the original reason for the Pre-Trial Chamber’s creation it has evolved to deal with a range of
8 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," A/57/769, 31 March 2003. 7 issues concerning defendants’ or victims’ rights before a case moves to trial. The administration of the court is also split in a similar, although less prescribed, manner; there is a Cambodian Director of Administration and an international Deputy Director.
The intricacies and innovations that went into structuring the ECCC indicate that its architects were attempting to create a precise balance of international and domestic control. Mechanisms and rules were put in place to govern how power would operate at the tribunal. That such measures were necessary, and to such a degree, indicates an absence of confidence on the part of both the UN Secretariat and the Cambodian government that they were dealing with good-faith partners. Both sides knew that they had different ideas about how such a trial should operate and what would be the most desirable outcomes.
Further details about how the ECCC would operate were negotiated as part of the internal rules. Although the agreement with the UN set out that the procedures of the ECCC would be in accordance with Cambodian law it also allowed for different procedural rules where the Cambodian procedure was unclear, missing, or inconsistent with international standards. As the first tribunal for mass atrocity crimes based in the civil law system, the ECCC required innovations and the court has ended up with the worst of both the common and civil law systems and significant duplication.9 In the civil law system the judicial investigation is conducted confidentially and a short public trial does not delve into the full details of this investigation. However, at the ECCC, the predominantly common law backgrounds of the trial lawyers and the public interest considerations about justice being seen to be done resulted in a lengthy trial process as well.
One of the unexpected outcomes of the drafting of the internal rules was the inclusion of civil parties. Although they are a feature of the Cambodian system, they do not appear to have been considered in the context of the ECCC until the internal rules were drafted. Victims can apply to be civil parties, which makes them parties to the proceedings and gives them the right to seek collective and moral reparations. Since it was not an anticipated part of the process, the court was initially ill-prepared to handle the volume of civil party applicants. The processes and procedures that governed their involvement were amended over the course of the ECCC’s first trial, and the role of civil parties and
9 Ciorciari and Heindel, Hybrid Justice, 42-48. See also Sergey Vasiliev, "Trial Process at the ECCC: The Rise and Fall of the Inquisatorial Paradigm in International Criminal Law," in The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law, ed. Simon Meisenberg and Ignaz Stegmiller (The Hague: Asser Press, 2016), 389- 434. 8 their lawyers were streamlined and restricted before the second trial began. The ECCC’s location on the outskirts of Phnom Penh has also facilitated victims who are not civil parties to attend proceedings. The Public Affairs section arranges for daily trips of Cambodians from throughout the country to visit the court. From 2009 to mid-2014 more than four hundred thousand people visited the court.10
There have been four cases before the court thus far. Kaing Geuk Eav, alias Duch, was the defendant in Case 001 for crimes committed whilst he was the commander of the S-21 prison and torture centre in Phnom Penh. He was sentenced, on appeal, to life in prison for crimes against humanity and grave breaches of the 1949 Geneva Conventions.11 Seventy-six victims were admitted as civil parties.
There were originally four defendants in Case 002: Ieng Thirith (the Khmer Rouge’s Minister of Social Affairs), Ieng Sary (Ieng Thirith’s husband and Minister for Foreign Affairs), Khieu Samphan (Head of State), and Nuon Chea (Deputy Secretary of the Communist Party of Kampuchea, known as Brother Number Two). The charges against Ieng Thirith were stayed in 2012 because she was found to be mentally unfit to stand trial.12 She died in 2015.13 Proceedings against Ieng Sary were terminated when he died in 2013.14 The case against Khieu Samphan and Nuon Chea was severed into a series of mini- trials because of concerns that they would die before a verdict was reached.15 The first of these mini-trials was designated Case 002/01 and dealt primarily with the evacuation of urban centres.16 The two defendants were convicted of crimes against humanity and sentenced to life in prison, although an appeal is pending at the time of writing.17 Their trial for the broader crimes of the regime, Case 002/02, which is widely expected to be
10 Public Affairs Section, Extraordinary Chambers in the Courts of Cambodia, "PAS Outreach Figures 2009-2014," http://eccc.gov.kh/en/media-center/activities-outreach, 30 June 2014. 11 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Appeal Judgement," Case File 001/18-07-2007-ECCC/SC, F28, 3 February 2012. 12 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Immediate Appeal Against the Trial Chamber's Order to Unconditionally Release the Accused Ieng Thirith," Case File 02/19-09-2007-ECCC-TC/SC (16), E138/1/10/1/5/7, 14 December 2012. 13 Stuart White, "Former Khmer Rouge Tribunal Defendant Dies," Phnom Penh Post, 22 August 2015. 14 Cheang Sokha, Stuart White, and Abby Seiff, "Ieng Sary Dies," Phnom Penh Post, 15 March 2013. 15 Severance refers to the ability of the Trial Chamber to “order the separation of proceedings in relation to one or several accused and concerning part or the entirety of the charges contained in an indictment”. Extraordinary Chambers in the Courts of Cambodia, "Internal Rules (Rev. 7)," 23 February 2011. 16 At the time of the severance the ECCC did not specify how many of these mini-trials there would be, only the scope of the first one, Case 002/01. 17 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Case 002/01 Judgement," Case File 002/19-09-2007/ECCC/TC, E313, 7 August 2014. 9 the last of the mini-trials, is ongoing and includes charges of crimes against humanity and genocide.
The ECCC has two additional ongoing cases, Case 003 and Case 004, which were launched to cover five suspects.18 One of the suspects in Case 003, Sou Met, died in 2013.19 The other, Meas Muth, was the Khmer Rouge navy commander and has been charged with genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and homicide.20 There are three suspects in Case 004: Im Chaem, Ao An, and Yim Tith. Im Chaem has been charged with homicide and crimes against humanity in connection with her role as Secretary of Preah Net Preah district in the Northwest Zone. The case against her was severed in February 2016 into Case 004/01 to allow a timely consideration of her case.21 The Co-Investigating Judges invited final submissions from the Co- Prosecutors in July 2016, indicating that in early 2017 she will either be indicted or the case against her will be dismissed. Ao An, also known as Ta An, was the Deputy Secretary of the Central Zone and has been charged with crimes against humanity, genocide, and homicide.22 Yim Tith has been charged with genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and homicide in relation to his time as Acting Secretary of the Northwest Zone.23
None of the suspects in Cases 003 and 004 has been held in pre-trial detention, unlike those in Cases 001 and 002 who were in the custody of the ECCC soon after its establishment. The investigations in Cases 003 and 004 are ongoing, but a trial at the ECCC for any of these suspects is highly unlikely. The government has frequently stated its opposition to these cases since they first became public in 2008. The Cambodian judges and Co-Prosecutor at the ECCC have also consistently opposed these cases but
18 The International Co-Prosecutor’s submissions originally concerned six suspects but one was withdrawn in 2009 after evidence of their death and before the suspects were formed into cases. Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Consideration of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71," Disagreement Number 001/18-11-2008-ECCC/PTC, 18 August 2009. 19 Lauren Crothers and Phorn Bopha, "Khmer Rouge War Crimes Suspect Sou Met Dead," Cambodia Daily, 27 June 2013. 20 Extraordinary Chambers in the Courts of Cambodia, "Mr Meas Muth Charged in Case 003," https://eccc.gov.kh/en/articles/mr-meas-muth-charged-case-003, 14 December 2015. 21 Extraordinary Chambers in the Courts of Cambodia, "Co-Investigating Judges Order the Severance of Im Chaem from Case 004," https://eccc.gov.kh/en/articles/co-investigating-judges- order-severance-im-chaem-case-004, 15 February 2016. 22 Extraordinary Chambers in the Courts of Cambodia, "The International Co-Investigating Judge Charges Ao An in Case 004," https://eccc.gov.kh/en/articles/international-co-investigating-judge- charges-ao-case-004, 2 April 2015. 23 Extraordinary Chambers in the Courts of Cambodia, "Mr Yim Tith Charged in Case 004," https://eccc.gov.kh/en/articles/mr-yim-tith-charged-case-004, 18 December 2015. 10 the structure of decision-making which I discussed above means that the cases have proceeded so far, albeit without the cooperation of the Cambodian side of the court.
The ECCC has set precedents for international criminal law and its institutions. It created an innovative civil party system which, although it has faced challenges, has allowed for unusually close victim engagement with the trial process.24 It has clarified the status of customary international law in the 1970s, particularly in relation to Joint Criminal Enterprise.25 The Khmer Rouge leaders must be prosecuted under the law as it stood when the crimes were committed but there was an absence of major international criminal law institutions between the post-Second World War trials, and the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda in 1993 and 1994 respectively. The ECCC has also slowly incorporated gender-based violence into its cases, an early absence that was criticised by victims’ lawyers and advocates.26
Although each of these aspects is part of the history of the ECCC, my focus in this thesis is on political, and politically relevant, decisions. These are decisions that have an impact on the Cambodian government’s power — whether they pose a threat to, or enhance, the government’s ability to hold on to power and prolong its time in office. Some decisions are also internationally politically relevant but primarily only in Cambodia’s bilateral relationships, and consequently again affect the government’s power. In the establishment of transitional justice mechanisms there is an acknowledged role for political decisions. In the creation of the ECCC, decisions were made by Cambodian government leaders and UN bureaucrats, and had to then be endorsed by political voting
24 See, for example, Christoph Sperfeldt, "From the Margins of Internationalized Criminal Justice: Lessons Learned at the Extraordinary Chambers in the Courts of Cambodia," Journal of International Criminal Justice 11, no. 5 (2013): 1111-37; Elisa Hoven, "Civil Party Participation in Trials of Mass Crimes: A Qualitative Study at the Extraordinary Chambers in the Courts of Cambodia," Journal of International Criminal Justice 12, no. 1 (2014): 81-107. 25 Joint Criminal Enterprise is a form of liability first articulated at the ICTY which considers the culpability of leaders for crimes committed as part of a common plan. It identifies three categories of liability: basic, systemic and extended. The ECCC has found that whilst the basic and systemic forms of liability existed in customary international law in the 1970s, the extended joint criminal enterprise liability did not and hence cannot be applied to the Khmer Rouge defendants. Ciorciari and Heindel, Hybrid Justice, 54-55; Lachezar Yanev, "The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship," in The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law, ed. Simon Meisenberg and Ignaz Stegmiller (The Hague: Asser Press, 2016), 207. 26 Silke Studzinsky, "Neglected Crimes: The Challenge of Raising Sexual and Gender-Based Crimes before the Extraordinary Chambers in the Courts of Cambodia," in Gender in Transitional Justice, ed. Susanna Buckley-Zistel and Ruth Stanley (New York: Palgrave Macmillan, 2012), 88-112; Emma Palmer and Sarah Williams, "Will the Extraordinary Chambers in the Courts of Cambodia Successfully Prosecute Sexual Violence," Right Now, http://rightnow.org.au/opinion-3/will-the- extraordinary-chambers-in-the-courts-of-cambodia-successfully-prosecute-sexual-violence/, 21 July 2015. 11 bodies: the Cambodian National Assembly and Senate, and the UN General Assembly. However, once a transitional justice mechanism has been established the legalist ideal holds that subsequent legal decisions are to be made unsullied by politicians. In setting up his study Jon Elster wrote that “I limit myself to political decisions establishing the laws, decrees and procedures that regulate transitional justice, thus excluding the legal decisions that—jointly with those laws, decrees and procedures—bring about the final outcome”.27 The assumption is that political decisions are confined to the establishment phase. Even if the disentanglement of law and politics may be possible in principle, it has not occurred at the ECCC. Evidence of political or politically relevant decisions that I discuss in this thesis can be seen in both comments outside the ECCC and behaviour within the institution. Cambodian political figures made statements about what the court would and would not be allowed to do, and raising the spectre of war if it traversed acceptable bounds. Controversial aspects of the ECCC’s operation such as corruption or the pursuit of additional cases have been mediated at bilateral government meetings, indicating that decision-making does not always lie at the court. These same controversial issues have then consistently split the judges at the ECCC along national/international lines.
Bucking the Liberal Democratic Trend
Neither the ECCC nor this thesis sit comfortably in the existing transitional justice literature. This literature emerged at the end of the Cold War when a series of transitions were taking place in South America and Eastern Europe which appeared, at least nominally, to be pushing those countries towards liberal democracy. Although not often acknowledged as a specific requirement for a transitional justice mechanism, the emphasis on liberal democratic transitions is pervasive in transitional justice literature. Present-day Cambodia is more democratic than the Khmer Rouge regime, but levels of democracy have been stagnant or declining for more than a decade; Cambodia is not currently undergoing a democratic transition. And yet, the ECCC is, by all explicit definitions, a transitional justice mechanism.
The ECCC is not alone in bucking the liberal democratic trend. As I discuss in Chapter One and Chapter Six there is a range of mechanisms that have been employed by continually repressive governments in a number of countries. These mechanisms might, in other circumstances, be classed as transitional justice mechanisms; they are truth
27 Jon Elster, "Coming to Terms with the Past. A Framework for the Study of Justice in the Transition to Democracy," European Journal of Sociology 39, no. 1 (1998): 16. Italics in the original. 12 commissions and trials that address past human rights violations. However, they do so in such an obviously controlled manner or with such clear political goals that they are dismissed by the transitional justice literature. This dismissal is rarely explicit; rather, these cases are just ignored. They have failed to live up to some unspecified eligibility criteria and are hence unworthy of consideration.
The same cannot be said of the ECCC. It is not occurring in the context of a democratic transition, and yet it is frequently included in the transitional justice literature. The presence of the UN is key. On the one hand, it enhances the appearance that certain standards are being maintained. On the other hand, it fosters the inclusion of the ECCC as a legitimate transitional justice mechanism. The ECCC has sometimes been maligned during this time by human rights organisations and foreign governments, but it has not been ignored. As well as establishing eligibility criteria, this focus on liberal democracy influences what questions are posed about transitional justice. Scholarship focuses on what should be done in a post-conflict situation, and then on the legal outcomes and societal benefits. Much less attention is paid to how transitional justice mechanisms are created, which is only sometimes related to scholarship’s idea of the best way to go about transitional justice.
The ECCC represents a delicate balance of legitimacy and illegitimacy. It does not accord with many of the expectations and explanations of the transitional justice literature, but it is also not excluded. There is clear government control of outcomes in pursuit of political goals, and no transition to liberal democracy, but it is legitimated by the international presence. The ECCC is not encompassed by the transitional justice literature or by the much smaller literature on mechanisms employed by repressive governments. Explanations that lie between the two are required in order to understand why it was created.
In this thesis I bring together the disparate strands of analysis that consider the ECCC and transitional justice. I focus on how the creation and operation of the ECCC can be understood, and then compare it with the transitional justice framework. Where there is conflict between transitional justice understandings and events in Cambodia I offer implications for the transitional justice scholarship. This thesis challenges the normative assumptions made about transitional justice, and argues that these institutions held up as being about victims and justice emerge from much more complex, and less altruistic, motivations. 13
Scope and Sources
In exploring the intersection of the transitional justice literature and the ECCC, I focus primarily on the transitional justice mechanisms which are most comparable with the ECCC. Transitional justice is difficult to talk about as a whole because of the variety of situations and mechanisms covered by the label. In discussing the ECCC, trials are of more relevance than other forms of transitional justice. The ECCC is an ad hoc institution, created by a government, with the participation of the UN, using a hybrid between domestic and international systems. Few other mechanisms also fall into this combination of categories, but those that fall into some of the same categories are the most useful comparisons. Although I also discuss the implications of the ECCC for transitional justice more broadly, I focus more so on the mechanisms that are similarly structured or created.
Throughout this thesis I discuss the liberal democratic transitional justice literature. I use the term liberal democratic to refer to both the principles of competitive multiparty elections and the individual and economic rights of liberalism. Although the transitional justice literature more frequently refers to the democratic changes it is linked to, it is also entwined with the ideas of the individual that are central to liberalism. When I discuss the absence of a liberal democratic motivation on the part of the Cambodian government, it is not to say that it is deviating from an ideal transitional justice mechanism. No such perfect mechanism can exist. There are significant flaws to the liberal model of transitional justice; it particularly ignores structural and economic factors which culminate in violence, and the role of foreign states in provoking, perpetuating, or bank-rolling a violent regime. But Cambodia’s dissonance with the liberal transitional justice paradigm means existing analyses are of limited utility.
My focus in this thesis is on Cambodia. Although my research is grounded in transitional justice theory, it is about exploring the limitations of the literature through the case of Cambodia, rather than imposing the literature on the Cambodian context. Accordingly, my sources are aimed at understanding events in Cambodia. I use scholarly publications, NGO reports, and newspaper articles for context and details. I use the documents of the ECCC which, where not confidential, are available on the court’s website, often in English, French, and Khmer.
I also conducted ten months of fieldwork in Cambodia, primarily in the capital Phnom Penh. I used documents contained in the archives of the Documentation Center of Cambodia to examine how the Khmer Rouge legacy was addressed by the 1980s 14 government. I interviewed archivists, NGO workers, court observers, government advisors, scholars, and staff at the ECCC. Many were semi-public figures willing to have their comments attributed to them, while others have been anonymised because of current or past conditions of their employment, particularly at the ECCC. As I alluded to in the opening to this Introduction, the people I chose to interview for this project already had an interest in the ECCC. Many had been involved in advocating for the creation of the ECCC, or directly involved in the creation itself, and hence had an interest in its success. I also observed court proceedings and talked to those unconnected to the ECCC about my research, but the information and analysis I was seeking was from people close to the process rather than focussing on broader Cambodian perspectives. This is not to discredit the importance of everyday Cambodian perspectives, but to say that they were not considered during the negotiation process. The opinions of Cambodians outside of positions of power were not solicited by the UN or by the Cambodian government. They rarely feature in my story because they were not considered at the time.
During my fieldwork I also acquired access to UN documents about the negotiation period which form the basis for Chapter Three on the negotiations between the Cambodian government and the UN Secretariat. These documents consist of approximately five thousand pages which are copies of documents in the UN Office of Legal Affairs files on a Khmer Rouge tribunal from May 1998 to March 2006.28 They include copies of relevant UN resolutions, letters exchanged between Cambodian and UN officials including between the Prime Minister and the Secretary-General, drafts exchanged between the two parties, transcripts of meetings, and internal UN correspondence. They appear to be a near complete copy of the records covering the Khmer Rouge trials at the UN Office of Legal Affairs during that period. The vast majority of these documents are not publicly available, nor were they intended to ever be made so, and therefore provide better insights than public documents can into the discussions occurring within the UN and between the UN and the Cambodian government. No similar documents from the Cambodian side of the negotiations are presently available. Analysis of government attitudes draws from how it responded to events, the communications it sent to the UN, the things spokespeople said publicly, and interviews of those connected to, but outside, the government. The attitudes and
28 These documents are on file with the author and throughout this thesis will be indicated in references as “UN KRT documents”. 15 opinions of international officials remain easier to discern or evidence than those from within the Cambodian government.
Illiberal Transitional Justice
As I have begun to discuss here, and will demonstrate in this thesis, Cambodia and the ECCC are not well considered by the existing transitional justice literature. The ECCC has not been pursued for the supposed goals of promoting democracy, ending impunity, and strengthening the rule of law. The Cambodian government has actively fought against it having these impacts. Instead, the government was seeking international legitimacy through holding a tribunal with enough appearance of independence, whilst actually controlling the narrative that the ECCC produced to ensure it was politically beneficial. These elements are not unique to the ECCC amongst transitional justice mechanisms but they are present to an unusual extent.
I argue that the ECCC should be considered a case of illiberal transitional justice. This concept draws on the idea of an illiberal democracy popularised by Fareed Zakaria in 1997.29 He argued that there had been a rise in illiberal democracies, which feature relatively free and fair elections but which may not have the hallmarks of liberalism including “the rule of law, separation of powers, and the protection of basic liberties of speech, assembly, religion, and property”.30 Yet these states must at least fashion themselves as democracies because it is the only acceptable form of government. They procure legitimacy through the performance of certain aspects of democracy, but the risk is that they come to redefine what it means to be democratic, or to strip away part of what is assumed to be a democracy.31
In transitional justice, I posit that there is a spectrum between liberal transitional justice and mechanisms employed by repressive regimes. Whether the transitional justice canon should include this second category is largely beyond the scope of this thesis, but I would argue that either the definition of transitional justice needs to be narrowed so as to explicitly, rather than just implicitly, dismiss them, or that they be included regardless of how unsavoury they are to the scholarship’s liberal democratic expectations. What I consider in this thesis, via the case of the ECCC, is the middle of the spectrum, which has features from both sides. It features the political control of repressive examples of transitional justice but also the focus on the appearance of fairness from the liberal cases.
29 Fareed Zakaria, "The Rise of Illiberal Democracy," Foreign Affairs (1997): 22-43. 30 Ibid., 22. 31 Ibid., 42. 16
I define liberal or illiberal transitional justice in terms of the extent to which procedural justice is being adhered to; how much of the conduct of a mechanism is controlled, in practice, by rules, procedures, and law. Procedural justice is not necessarily a higher form of justice nor the route to the best overall outcome. It can result in acquittals or shorter sentences that betray conceptions of substantive justice and it can devalue the experiences of victims in service to a defence case. In both trials and truth commissions procedures can create and perpetuate silences in contrast to the stated goals of truth and justice. Nonetheless, the extent to which procedural justice principles are adhered to is a key part of how transitional justice mechanisms secure their international legitimacy. Transitional justice mechanisms are also judged against the standards of substantive justice they achieve but to a lesser extent, internationally at least, than the standards of procedural justice; whether the outcome was appropriate is far more subjective than whether the appropriate rules were followed. Rule of law and rights of due process are central to liberal democracy, and so the performance of procedure legitimises a transitional justice mechanism as part of liberal democracy, or transitions towards it.
In mechanisms enacted by repressive regimes, the importance of performing procedural justice is often minimal, whereas in liberal transitional justice it is essential. I propose that illiberal transitional justice is a middle ground, where the minimum standards of this procedural justice performance are adhered to but any additional commitment to procedure is discarded, particularly if it interferes with other interests. Hence, my focus on politically relevant decisions. If procedure was strictly adhered to, politics would be irrelevant after the establishment of the transitional justice mechanism. That there are political decisions the Cambodian government has made about how the ECCC is allowed to operate already shows there is something more than procedure at work.
This conception of illiberal transitional justice also accords with the conceptual level of illiberal democracy. On the surface level the institutions exist and have the correct façade, but the underlying (sometimes implicit) normative values they are supposed to represent are not present. In an illiberal democracy, there might be regular elections where the vote itself is conducted freely and fairly but where there is an uneven power balance that skews the result, unequal access to media, or clear control of the bureaucratic or security services. In illiberal transitional justice, this idea might translate as a well-structured mechanism with clear procedural rules, but where powerful people or institutions influence the outcome outside of the defined decision-making system. In the case of the judiciary, it could mean that judges are not free to make their own decisions, either through financial dependency or political manipulation. It could mean 17 that funding for the transitional justice mechanism is contingent on certain outcomes. It could mean that a government is using its political or state power to pressure court actors. Illiberal transitional justice is a different conception of what the rules are, how important they are, and when they are important.
The rules of transitional justice mechanisms are always, to some extent, created only for that specific mechanism. Overall standards of fair trial rights are enshrined in international conventions and most domestic jurisdictions, but much remains to be decided by those creating the transitional justice mechanism. In the case of both liberal and illiberal transitional justice mechanisms, the temporal, personal, and subject matter jurisdictions are often decided by political bodies and designed to target specific individuals whilst protecting others. These decisions often take into account the power of the old elites who will be the subject of the transitional justice mechanism, and the political and narrative goals of the new government. If those political goals relate to liberal democracy then it is welcomed as a transitional justice mechanism. If not, the political goals are considered to be a pollution of the mechanism.
In this thesis I analyse the ECCC and argue that it is an archetypal illiberal transitional justice mechanism. I look at the context it came from, how it was created, and what its politically relevant outcomes have been. I also examine the aspects of the transitional justice literature that are useful to form an understanding of the ECCC. I then use this discussion to offer a preliminary exploration of illiberal transitional justice, how it can be delineated, and the challenges it poses to the normative expectations of transitional justice.
Outline of the Thesis
In Chapter One I examine the state of the transitional justice literature. I discuss the implicit liberal bias that means certain transitional justice mechanisms are prized over others, and often more than just being prized they are considered to be the only cases that exist. In this chapter I begin to suggest how Cambodia and the ECCC challenge these prevailing assumptions. I also look at the pockets of the literature that are closer to an understanding of the ECCC including literature addressing transitional justice mechanisms employed by repressive regimes and ideas of post-transitional justice, that is transitional justice employed decades later.
Chapter Two discusses the period from 1979 to 1996 in Cambodia which is often given only cursory treatment in discussions of the creation of the ECCC, particularly those framed as transitional justice literature. This history, which is often absent from the 18 transitional justice narrative, is crucial to understanding the current operations of the ECCC; the past did not lie dormant during this time. A trial was held, a historical research commission formed, a day of memorialisation was instituted, and the history of atrocities committed by the Khmer Rouge regime was incorporated into the education system. This period also shaped the Cambodian government’s approach to ending the Khmer Rouge movement through defections, and its relationship with the rest of the world through the international isolation of the 1980s and then the UN mission in the early 1990s.
All of these events and trends had significant impacts on the negotiation period which I discuss in Chapter Three. In June 1997 the Cambodian Co-Prime Ministers requested the help of the United Nations in bringing to justice those responsible for crimes against humanity during the Khmer Rouge regime. Six years later an agreement was signed to create the ECCC. The period in between was replete with delays, misunderstandings, and political bickering. The creation of transitional justice mechanisms is often acknowledged and accepted to involve conceptions of power, particularly in terms of the old elites. But in Cambodia the role of power reached unusual heights. The negotiation period was a clear competition for control between the Cambodian government and the United Nations Secretariat. The patterns seen during its creation meant that an illiberal transitional justice mechanism was a likely consequence.
Chapter Four examines the period from 2003 to the time of writing in 2016. Although an agreement had been reached, the process of establishing the ECCC took a number of years and was characterised by the same themes as the negotiation period: delays caused by both sides and competitions for control. In the ten years of the court’s operation, thousands of decisions have been made. I examine some of the most political aspects including disputes over corruption, additional prosecutions, and government members appearing as witnesses. Throughout this chapter I argue that procedure has been rhetorically prized but in reality disregarded when it would result in an outcome that the UN, donor states, or the Cambodian government deem to be unfavourable.
The implications of the operation of the ECCC that I discussed in Chapter Four form the basis for Chapter Five. I compare the expected outcomes of the transitional justice literature in the fields of impunity, rule of law, democracy, justice, and reconciliation with the outcomes that are being achieved in Cambodia. I argue that the ECCC was not created for the purpose of achieving the outcomes that are expected of transitional justice mechanisms. Furthermore, in some cases the Cambodian government is actively 19 working to avoid allowing the ECCC to make an impact, particularly in the direction of liberal democracy.
Chapter Six answers the question raised by Chapter Five: if not for the expected reasons then why was the ECCC created? I first examine other examples of transitional justice that are outside the expectations of the literature to offer comparisons of how governments relate to transitional justice mechanisms in ways that contravene the liberal democratic expectations. I then argue that Cambodia’s pursuit of transitional justice is strongly linked to a desire for international legitimacy, and to the control and perpetuation of a specific narrative of the Khmer Rouge regime.
Finally, in the Conclusion I reconsider the connection between transitional justice literature and the case of Cambodia and the ECCC. I use the preceding chapters to argue for the category of illiberal transitional justice, and to argue that the ECCC is one such transitional justice mechanism. I also consider the implications of the category of illiberal transitional justice for the broader literature, the assumptions it challenges and the questions it poses.
21
Chapter One – The State of Transitional Justice
What should be done in the aftermath of gross human rights violations, crimes against humanity, or genocide? This is the central question asked of and posed by and of transitional justice. The question, in turn, raises further challenging questions. Is truth or justice a higher value? Which considerations can be taken into account when choosing a response to mass violence? What is the relationship between law and politics, and what is the desired relationship between the two? Can there ever be an adequate response to the deaths of hundreds of people, or thousands, or millions?
Transitional justice, as a term and a field of scholarship, is a product of little more than twenty years’ work. The phenomenon is in some ways millennia old, and in other ways only as old as the term itself. There are examples dating back to Classical Greece of a government using amnesties, institutional reforms, and public confessions to deal with the actions of the preceding government which it considered to be criminal. The International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East are more direct antecedents to the current industry of international criminal tribunals, as are the thousands of other trials conducted across Europe and Asia in the aftermath of the Second World War. The term transitional justice, not coined until decades later, has been retroactively applied to these earlier mechanisms.
The trials, truth commissions, amnesties, and institutional reforms that inspired the label of transitional justice occurred following democratisations at the end of the Cold War in the late 1980s and early 1990s. The birth of transitional justice is, therefore, intimately linked to understandings of sovereignty, legality, and liberal democracy that emerged in the post-Cold War world. Although the phenomenon itself is much older, understandings of what it means to be a transitional justice mechanism are very recent. This specific context of the early 1990s, when both the scholarship and the mechanisms of transitional justice were emerging, created a presumed link between transitional justice and the pursuit of liberal democracy. However, transitional justice mechanisms are employed in a range of contexts other than transitions to liberal democracy. I argue that the liberal democratic focus of the literature makes it insufficient to understand the variety of existing cases, including Cambodia and the Extraordinary Chambers in the Courts of Cambodia (ECCC). 22
In this chapter, I examine the origins and definitions of transitional justice in more detail to demonstrate the liberal roots of conceptions about transitional justice. I then turn to the consequences of these assumptions, in both the explanations offered for why transitional justice mechanisms are created and the questions that are posed about transitional justice. Next, I discuss the works that are the exception to this trend I have identified in the literature, the works which explicitly reject the liberal bias. Finally, I turn to aspects of the literature which address the peculiarities of the timing of the ECCC: the separate explanations offered for transitional justice mechanisms held decades after the fact and the importance of a long view of how these mechanisms came to be.
The ECCC is a transitional justice mechanism. However, Cambodia is not currently undergoing a transition to liberal democracy, nor is there any clear moment of transition that might fit the existing paradigm. As I argue throughout this thesis, the Cambodian government is also not interested in using the ECCC to transition towards liberal democracy. Therefore the existing understandings of the context in which transitional justice measures are employed, and the reasons for doing so, do not include cases such as Cambodia and the ECCC.
Origins
Jon Elster has identified examples of dealing with the legacy of human rights abuses committed by a preceding government in Athens in 403 BCE. The new government enacted a multifaceted approach to dealing with the terror and killings that occurred during the rule of the Thirty Tyrants in order to ensure that such crimes would not happen again. Amnesty was declared for all but the top leaders. Even those not covered by this amnesty could remain free by giving a full account of their actions to the public, and behaviour during the Thirty Tyrants period could be used to discriminate against suitability for future public office.1 In nineteenth century France, lenient measures were employed following the First Restoration (1814). No trials were held and few people were removed from public office. In light of the perceived failures of these measures much harsher procedures, including trials and purges, were employed following the Second Restoration (1815).2 The origins of modern international criminal law courts are the trials of leaders following the Second World War: the trial of Major War Criminals before the
1 Jon Elster, "Coming to Terms with the Past. A Framework for the Study of Justice in the Transition to Democracy," European Journal of Sociology 39, no. 1 (1998): 11-13. 2 Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004), 28-35. 23 International Military Tribunal at Nuremberg and its counterpart in Tokyo, the International Military Tribunal for the Far East. In addition to these trials for the highest leaders, a further 5,025 people were convicted in the British, American, and French occupied zones in Germany and 5,700 Japanese prisoners were put on trial in more than fifty locations throughout Asia in the years following the war.3
After the trials that occurred in the immediate aftermath of the Second World War, applications of international criminal law disappeared until the early 1990s. The polarisation of the world during the Cold War limited the potential actions of international institutions such as the UN and made the human rights abuses of any state less important than which superpower its leaders supported. After the end of the Cold War significant regime changes and political transitions took place that provided the impetus for transitional justice mechanisms. The New World Order also facilitated the growth of UN interventions and international criminal law as the veto provisions at the UN Security Council were less frequently used. Adam Smith has explained that the 1993 establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) “ignited a phenomenon and forged an industry out of a subject—international criminal law—that had been moribund, esoteric, and decidedly theoretical”.4 Transitions from dictatorship towards democracy in Latin America in the 1980s and Eastern Europe in the 1990s were the origin of the term transitional justice. The parallel developments of international criminal law and the growth of democratisation were the twin origins of modern transitional justice.
The first prominent use of the term transitional justice was the 1995 publication of a three-volume work edited by Neil Kritz titled Transitional Justice: How Emerging Democracies Reckon with Former Regimes.5 It examined the legal and political aspects of dealing with crimes committed by leaders or agents of the preceding government. The primary focus of these volumes was on cases from Europe and Latin America. Only two (South Korea and Uganda) out of twenty-one case studies came from outside these regions, although the book does contain documents from additional countries which are not discussed. These volumes set the direction for the first debates about transitional justice and featured many of those whose work continues to shape the field: an exchange
3 Jeffrey Herf, "Post-Totalitarian Narratives in Germany: Reflections on Two Dictatorships after 1945 and 1989," Totalitarian Movements and Political Religions 9, no. 2-3 (2008): 164; Sandra Wilson, "War, Soldier and Nation in 1950s Japan," International Journal of Asian Studies 5, no. 2 (2008): 197. 4 Adam Smith, After Genocide: Bringing the Devil to Justice (New York: Prometheus Books, 2009), 63. 5 Neil Kritz, ed. Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols. (Washington D.C.: United States Institute of Peace Press, 1995). 24 between Diane Orentlicher and Carlos Nino on the duty to prosecute, discussions of Latin American processes by Ruti Teitel, Margaret Popkin and Naomi Roht-Arriaza, and activist voices including Aryeh Neier, José Zalaquett, with a foreword by Nelson Mandela.6 Amongst the many contributors were lawyers, activists and political scientists but no historians were included. Despite explicitly being about dealing with the past, transitional justice is assumed to be a short-term process with a forward-looking perspective.7
It was in large part because of the publication of Kritz’s Transitional Justice that the term transitional justice became the established label for this phenomenon. Luc Huyse, writing in 1995, considered a number of possible labels for these justice processes including “backward-looking or retrospective justice, retroactive or ex post facto justice, retributive justice, post-authoritarian justice” and transitional justice.8 He dismissed some as too broad (all justice occurs after crimes are committed and thus is retrospective) and others as too narrow (not all prosecutions are based on retroactive laws). He suggested the use of either “post-transition justice” or “justice after transition”.9 Both of these terms contain a subtle but important difference from transitional justice in that they suggest justice occurs after a moment of transition rather than seeing justice as part of the transitional period. As Paige Arthur has pointed out, only one reviewer of the Kritz volumes, Timothy Garton Ash, questioned the use of the term transitional justice, calling the volumes “too narrowly entitled” and arguing that there was no word for the phenomenon they identified in English.10
Definitions
In the two decades since the creation of transitional justice as a term and as a field it has undergone immense growth with a proliferation of mechanisms. Some mechanisms are conducted at a national level, instituted by the government or by the courts, or unofficially conducted by NGOs. Other mechanisms have been created by the UN
6 Ibid. 7 Paige Arthur, "How 'Transitions' Reshaped Human Rights: A Conceptual History of Transitional Justice," Human Rights Quarterly 31, no. 2 (2009): 332-33. 8 Luc Huyse, "Justice After Transition: On the Choices Successor Elites Make in Dealing with the Past," Law & Social Inquiry 20, no. 1 (1995): 53. 9 Ibid., 53-54. 10 Garton Ash instead suggested two possible German words would be more appropriate in place of transitional justice: Geschichtsaufarbeitung and Vergangenheitsbewältigung. He says these “may be translated as ‘treating’ the past, ‘working over’ the past, ‘confronting’ it, ‘coping, dealing or coming to terms with’ it; even ‘overcoming’ the past”. Timothy Garton Ash, "The Truth About Dictatorship," New York Review of Books, 19 February 1998, 35; Arthur, "How 'Transitions' Reshaped Human Rights," 330. 25 Security Council or with the involvement of the UN General Assembly. Aside from governments and the UN, key actors in transitional justice practice and scholarship include international NGOs such as the Open Society Justice Initiative and the International Center for Transitional Justice (ICTJ), academic institutions such as the WSD Handa Center for Human Rights and International Justice (formerly the War Crimes Studies Center), and local organisations which take diverse forms such as groups of victims or victims’ relatives, or local NGOs focussed on justice advocacy, trial monitoring, or archiving documents. As a new and broad field of study conducted in varied disciplines (including law, history, politics, international relations, criminology, and anthropology) there is little in the way of established orthodoxy.
There is currently no agreed definition of transitional justice but there are two broad types that recur frequently, one operational and one academic. The definition used by the ICTJ says: “Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms”.11 This definition encompasses a diverse range of situations and is deliberately expansive because organisations such as the ICTJ have an interest in a broad advocacy platform. A more academic definition comes from prominent transitional justice scholar Ruti Teitel: transitional justice is the “conception of justice associated with periods of political change, characterized by legal responses to confront wrongdoings of repressive predecessor regimes”.12 This definition identifies the necessity of a transition and a period of political change. However, it does not specify the type of transition or what constitutes a political change. Accordingly, this definition also includes a wide variety of cases, since it does not exclude cases where the transition is something other than one from dictatorship to democracy.
Another academic definition presented by Naomi Roht-Ariaza says: “transitional justice includes that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law”.13 There is no specific reference to a transition, only a presumed end to the period of conflict, and so no
11 International Center for Transitional Justice, "What is Transitional Justice?," http://ictj.org/about/transitional-justice. 12 Ruti G. Teitel, "Transitional Justice Genealogy," Harvard Human Rights Journal 16 (2003): 69. 13 Naomi Roht-Arriaza, "The New Landscape of Transitional Justice," in Transitional Justice in the Twenty-First Century, ed. Naomi Roht-Ariaza and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006), 2. 26 limitations on how long after such a conflict the term transitional justice can apply. Although it does not explicitly consider the type of post-conflict government, this definition makes intention part of defining transitional justice. How central must the intention to address the crimes of human rights violations be to the transitional justice mechanism? If a mechanism that could possibly be labelled transitional justice serves a number of purposes, including but not limited to dealing with the past, does it qualify for the label? Brian Grodsky who, as I will discuss in subsequent sections, analyses cases of transitional justice that are normally ignored, defines transitional justice as “a new or nominally new regime’s legal and symbolic responses to past human rights violations”.14 Crucially different here is the acknowledgment that the new government may not be all that new, and that transitional justice may be as much about symbolism as it is about law.
Transitional justice is currently used to refer to a diverse range of situations which still includes transitions from dictatorship to democracy but also includes transitions from conflict to peace, and cases without a transition such as an established democracy addressing crimes committed against indigenous populations, mechanisms employed before the conflict ends such as in Columbia, and countries which have undergone some transition but not changed leadership such as in Uzbekistan. Despite all of these cases being encompassed by working definitions of transitional justice they are not well represented or explained in the literature. Most of the transitional justice literature is still steeped in the language of democracy and liberalism. It also holds tight to the assumption that the post-conflict government is pursuing transitional justice in order to bring about positive societal change.
Defining transitional justice faces the challenge of ensuring that the definition is narrow enough to be analytically useful but broad enough to encompass a diverse field. In trying to craft such a definition there are frequently a range of unanswered questions. How long is the transition? What is being transitioned from and to? How is the end of the transitional period demarcated? What mechanisms are included? Are the intentions of the government in creating these institutions relevant?
Legalism and Realism
Scholarship addressing the creation of transitional justice mechanisms can be broadly divided into legalist and realist interpretations. Legalism holds that international actors
14 Brian Grodsky, The Costs of Justice: How New Leaders Respond to Previous Rights Abuses (Notre Dame, Indiana: University of Notre Dame Press, 2010), 4. 27 are guided by international norms and behave in a way that is appropriate and in accordance with those norms; in the case of transitional justice this stance is taken to necessitate the promotion of a universal standard of justice.15 It also places law on a pedestal above politics; “[p]olitics is regarded not only as something apart from law, but as inferior to law. Law aims at justice, while politics looks only to expediency”.16 The transitional justice literature is dominated by assumptions based on a legalist perspective. The new government is assumed to be using transitional justice for laudable reasons based on liberal democratic values: they are seeking to strengthen a fledgling democracy, end impunity, and promote justice, reconciliation, and social healing. It does not consider the cases where mass atrocities have occurred but the successor government is not liberal democratic and does not aspire to be. This approach is exemplified by Gary Bass in Stay the Hand of Vengeance when he asserts, “Liberal governments sometimes pursue war crimes trials; illiberal ones never have”.17 This thread of the literature is also tied to normative explanations of why transitional justice is employed. For example, theories around a “justice cascade” explain the growing use of transitional justice mechanisms over the last three decades through reference to a normative shift.18
Realism focuses instead on relative power explanations. It does not see law as separate from politics but regards both as intricately linked to power dynamics. Samuel Huntington, in a classic of realist scholarship The Third Wave: Democratization in the Late Twentieth Century, has succinctly summarised his claim: “In actual practice what happened was little affected by moral and legal considerations. It was shaped almost exclusively by politics, by the nature of the democratization process, and by the distribution of political power during and after the transition”.19 A realist approach considers the conditions under which certain options are available to a successor government. In a negotiated transition where the old elites continue to hold some power
15 Leslie Vinjamuri and Jack Snyder, "Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice," Annual Review of Political Science 7 (2004): 346. 16 Judith N. Shklar, Legalism (Cambridge, Massachusetts: Harvard University Press, 1964), 111. 17 Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000), 8. 18 Ellen Lutz and Kathryn Sikkink, "The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials," Chicago Journal of International Law 2, no. 1 (2001): 1-33; Tricia Olsen, Leigh Payne, and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington D.C.: United States Institute of Peace, 2010), 103. However, Olsen, Payne, and Reiter argue that although the number of trials has increased over time the idea of the justice cascade exaggerates the significance of this trend because it fails to take account of the cumulatively increasing number of countries that have undergone a transition. 19 Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991), 215. 28 there are likely to be more restrictions and hence a mechanism that is less confrontational and prosecutorial than in the instance of complete military or political defeat of the preceding government. This kind of compromise during negotiated transitions was particularly evident in amnesties enacted in Latin American countries including Chile, Argentina, Uruguay, and El Salvador. Of course little scholarly work sits at the extreme of either realist or legalist interpretations. When analysing the creation of transitional justice mechanisms legalist and normative explanations are usually required to explain why a state has decided to pursue transitional justice.20 However, realist concerns for international politics are also relevant if a state is performing according to other people’s norms of transitional justice for its own benefit.
The design and conduct of transitional justice mechanisms are also split between the two explanations. It is acceptable to acknowledge realist concerns in decision-making to establish mechanisms: what type of mechanism will be used, who will be targeted, and what limits will be imposed. In this way I argue that the exceptionalism of transitional justice is evident and somewhat acknowledged; it is justice tempered or shaped for the transitional context. Politics is allowed to take precedence over existing laws. However, once the mechanism has been created its procedures and rules are highly prized and must be observed to the highest legalist standards. The transitional justice scholarship tends to focus primarily on the legalist origins and consequences of transitional justice mechanisms: on how those mechanisms have created a normative shift towards justice, and on the development of international criminal law. This legalist emphasis is most significant for my research in two ways I discuss below: the questions that are posed in transitional justice scholarship which focus far more on how mechanisms should be employed than on why, and the assumptions that are made about the government that is implementing the mechanism and its democratic status.
Questions Posed
The centrality of legalism in transitional justice studies is perhaps most evident in the research questions which are posed by scholars. The most common question is what type of mechanism, if any, should be employed in the aftermath of mass atrocities. Broadly speaking, these arguments fall along a spectrum with truth at one end and justice at the other.21 Truth commissions with strong amnesty provisions most often represent the
20 Christopher Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," International Organization 55, no. 3 (2001): 683. 21 See, for example, Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal 100, no. 8 (1991): 2537-615; Martha Minow, Between 29 truth end of the spectrum and strong prosecutorial measures represent justice, although the literature has moved away from this simple dichotomy to consider the complex outcomes of mechanisms. There is nonetheless still a strong focus on the relative merits of truth commissions, trials, amnesties, institutional reform, and a range of other possible measures—as well as the appropriate sequencing of such measures if multiple ones are to be employed.22
This focus on selecting mechanisms is driven partially by the high number of practitioners and activists present in transitional justice scholarship. There is a significant overlap between scholars and international practitioners of transitional justice with individuals frequently moving between the two roles or simultaneously occupying both. This intersection means that scholars may have an inside view of the transitional justice mechanism but also focus only on certain aspects that are operational or instrumentalist. They are often seeking to use a toolbox of transitional justice mechanisms that can be applied worldwide, sometimes regardless of context. Timing, which I will discuss in greater detail later in this chapter, is also impacted by these discussions. It is assumed that something will work; that it is only a matter of choosing which type of transitional justice to employ, not of when, or whether to do so at all.23
There are limitations to posing questions about what would be the best transitional justice mechanism. It is, or should be, a highly contextualised answer, based on the specifics of that country, rather than a universal explanation. It is also impossible to determine without an understanding of what the ideal outcome would be, what it is that the transitional justice mechanism is trying to achieve, something which is rarely made clear. Additionally, it fails to take into account political realities and how they will shape the outcomes of a transitional justice mechanism. Ultimately these discussions of an ideal mechanism hold little relevance for cases such as Cambodia where decisions were based more on political considerations.
The only bearing such discussions have is on how the established scholarship informs the perceptions of decision makers. For example, hybrid domestic/international trials emerged partially as a response to the flaws of the ad hoc international criminal tribunals. For this reason, at one point Suzannah Linton characterised hybrid trials as
Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston: Beacon Press, 1998). 22 John Braithwaite and Ray Nickson, "Timing Truth, Reconciliation, and Justice after War," Ohio State Journal on Dispute Resolution 27 (2012): 443-76. 23 Laurel E. Fletcher, Harvey M. Weinstein, and Jamie Rowen, "Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective," Human Rights Quarterly 31, no. 1 (2009): 170. 30 the “latest ‘must have’ accessory in transition”.24 However, practical experience of hybrid trials and the problems associated with them means they are no longer a preferred mechanism. The importance of the current trends in transitional justice is particularly pertinent in cases where foreign governments or international agencies are involved in the establishment process. As well as power explanations that take account of the power of old authorities, the desires of other states and their ability to assert themselves also affect how transitional justice mechanisms are chosen. A weaker state is more vulnerable to the fashions of the international community whereas stronger states are more able to implement their preferred mechanisms.25
The importance of international preferences is particularly evident in the case of Rwanda and the International Criminal Tribunal for Rwanda (ICTR). Following the 1994 genocide, the new government sought UN assistance to establish a tribunal, but ended up voting against the ICTR’s creation a few months later at the UN Security Council. The preferences of the Rwandan government in all aspects of this tribunal were overridden by the UN, as I discuss in more detail in Chapter Six. However, as the Rwandan government solidified its domestic power and became less reliant on international aid, and by extension less reliant on the UN, it began to exert more control over the actions of the ICTR. When it objected to certain investigations at the tribunal, the government crippled prosecutions in 2002 by refusing to allow witnesses to travel to the court. 26 The ability of the UN to assert its transitional justice preference, on behalf of the international community, had declined as Rwanda rebuilt and strengthened its independence.
Assumptions Made
Rooted in this discussion of what should be done is an implicit assumption that the goal of transitional justice is to further liberal democracy. Despite the broad definitions of transitional justice that were discussed above, much of the literature contains unacknowledged assumptions, notably around transitional justice’s connection to Western liberalism. The roots of transitional justice, either in the end of the Second World War or in the end of the Cold War, are moments of triumph for the West.27
24 Suzannah Linton, Putting Things into Perspective: The Realities of Accountability in East Timor, Indonesia and Cambodia (Baltimore: University of Maryland, 2005), 25. 25 Fletcher, Weinstein, and Rowen, "Context, Timing and the Dynamics of Transitional Justice," 198. 26 Erik Møse, "Main Achievements of the ICTR," Journal of International Criminal Justice 3 (2005): 939. 27 Sarah Maddison and Laura J. Shepherd, "Peacebuilding and Postcolonial Politics of Transitional Justice," Peacebuilding 2, no. 3 (2014): 260. 31 Transitional justice scholarship and practice accordingly assumes that all transitioning countries are, or should be, moving towards Western-style liberal democracy. Transitional justice mechanisms are a step on the path to this liberal democratic future, a step often imposed or encouraged by the countries that consider themselves to make up the international community. Accordingly, it is often assumed that successor governments are pursuing transitional justice for the purposes of developing democracy, cementing rule of law, and the general liberal betterment of society.
Just as the term transitional justice can be traced back to Transitional Justice edited by Kritz in 1995, so too can scholarship’s focus on democracy; the subtitle of the book was How Emerging Democracies Reckon with Former Regimes. It served to place transitional justice in the context of the consolidation of new democracies and the introduction of this book noted, but did not justify, the resultant exclusion of cases of transition in Iran and Nicaragua because they were non-democratic successor states.28 This connection with democracy was not present in earlier war crimes trial literature and coincides with the adoption of the term transitional justice. Ruti Teitel described the post-1945 trials, especially the Nuremberg trials, as the first phase of the genealogy of transitional justice. However, the origins and outcomes of those trials differ greatly from the trials conducted in democratising countries identified as phase two, since those trials conducted immediately after the Second World War were conducted by external powers following a military victory rather than through a domestic negotiated process.29 These trials, and those earlier ones described by Elster, show that such processes have not always been considered the sole province of democratic societies but that non-democratic examples have later been co-opted into discussions with a democratic focus.
Teitel stated in the introduction to her 2000 book, also called Transitional Justice, that she intended to “move away from defining transitions purely in terms of democratic procedures” but still only to the extent of examining other aspects of liberal democracy and rule of law.30 Rudolph identifies securing individual convictions as the primary goal of the government but asserts that the “more salient goal” is “to manage violent conflict and reduce the likelihood of future transgressions”.31 Shaw and Waldorf describe transitional justice as “a redemptive model in which the harms of the past may be repaired in order to produce a future characterized by the nonrecurrence of violence, the
28 Charles Duryea Smith, "Introduction," in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil Kritz (Washington D.C.: United States Institute of Peace Press, 1995), xvi. 29 Teitel, "Transitional Justice Genealogy," 70-71. 30 Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), 5. 31 Rudolph, "Constructing an Atrocities Regime," 656. 32 rule of law, and a culture of human rights”.32 Berger attributes the rise of examining the past to democratisation and the consequent access to legal remedies.33 Bass makes the connection to liberalism clearer than most. He argues that “Illiberal states can do things the easy way: summary executions, show trials, or ignoring the issue of war crimes altogether” and that therefore “the pursuit of war criminals can only be explained with reference to domestic political norms in liberal states”.34
The transitional justice literature assumes liberalism is the natural end of political progress and, therefore, its promotion is the goal of transitional justice.35 This goal gives transitional justice licence to be partial justice and to betray its legalist tenets.36 Since it is justice specifically for the context of a liberalising process, transitional justice is tied to politics as much as it is tied to law, if not more so. Legal aspects of justice are subsumed in the larger political goal of promoting democracy.37 Arguments are made that it should be done not for the sake of the law but for societal good, because it can serve a purpose.38 Yet these liberal ideas of transitional justice depoliticise other aspects which are seen to be lesser priorities including: the socioeconomic dimensions of a conflict, beneficiaries of past injustices, and post-conflict increases in gender-based violence. 39
This liberal connection with transitional justice is deliberately maintained. Donor countries who often fund transitional justice mechanisms see liberal democracy as the desirable outcome. Accordingly, activists and practitioners who are seeking this funding focus on the supposed role of transitional justice in promoting rule of law and
32 Rosalind Shaw and Lars Waldorf, "Introduction: Localizing Transitional Justice," in Localizing Transitional Justice: Interventions and Priorities After Mass Violence, ed. Rosalind Shaw, Lars Waldorf, and Pierre Hazan (Stanford, California: Stanford University Press, 2010), 3. 33 Thomas U. Berger, War, Guilt, and World Politics after World War II (Cambridge: Cambridge University Press, 2012), 9. 34 Bass, Stay the Hand of Vengeance, 29, 35. 35 Kora Andrieu, "Political Liberalism After Mass Violence: John Rawls and a 'Theory' of Transitional Justice," in Transitional Justice Theories, ed. Susanna Buckley-Zistel, et al. (New York: Routledge, 2014), 85-86. 36 Christine Bell and Catherine O'Rourke, "Does Feminism Need a Theory of Transitional Justice? An Introductory Essay," International Journal of Transitional Justice 1 (2007): 37; Thomas Obel Hansen, "The Vertical and Horizontal Expansion of Transitional Justice: Explanations and Implications for a Contested Field," in Transitional Justice Theories, ed. Susanna Buckley-Zistel, et al. (New York: Routledge, 2014), 109. 37 Hansen, "The Vertical and Horizontal Expansion of Transitional Justice," 108-09. 38 Andrieu, "Political Liberalism After Mass Violence," 91-92. 39 Hannah Franzki and Maria Carolina Olarte, "Understanding the Political Economy of Transitional Justice: A Critical Theory Perspective," in Transitional Justice Theories, ed. Susanna Buckley-Zistel, et al. (New York: Routledge, 2014), 201. 33 democracy.40 The overlap between academics and practitioners of transitional justice then colours the way analysis is conducted.41
Although the literature’s focus on democracy is rarely justified, it is not without merit. Lutz and Reiger investigated why states decide to prosecute and emphasised the need for normative explanations. They found that democratic countries were overrepresented amongst those countries that pursued transitional justice. Using Freedom House’s data for 2007 only about half of all countries were democratic but amongst the countries that had indicted former heads of state three-quarters were democratic.42 However, there are also cases of non-democratic countries pursuing transitional justice which are rarely addressed in the existing literature. Despite the elision in the literature, these cases exist and are not yet adequately explained.
Filling the Illiberal Gap
One exception to this lacuna is work by Brian Grodsky which discusses the use of truth commissions in countries where there is still repressive rule, cases which he identified as having received significantly less attention.43 Examples of such truth commissions include Chad (where a commission was held in 1990 following the overthrow of Hissène Habré but in the context of a successor government repeating the abuses of its predecessor), Uganda (where Idi Amin launched a truth commission in 1974 into disappearances during the first three years of his rule) and Zimbabwe (where in 1983 military abuses from the early Mugabe government were investigated). In Uganda and Zimbabwe, the reports of these commissions were never released nor any of the recommendations acted upon.44
Grodsky focused most significantly on the case of Uzbekistan, where Islam Karimov was both the last communist leader and the post-communist president until 2016. Karimov created a truth commission in 1999 which connected the Tsarist and Soviet periods to remove the exclusive link between communism and the crimes committed and instead to stigmatise the Russian “other”. The commission was “domestically irrelevant”.45 Rather
40 Susanna Buckley-Zistel et al., "Transitional Justice Theories: An Introduction," in Transitional Justice Theories, ed. Susanna Buckley-Zistel, et al. (New York: Routledge, 2014), 5. 41 Phil Clark and Nicola Palmer, "Challenging Transitional Justice," in Critical Perspectives in Transitional Justice, ed. Nicola Palmer, Phil Clark, and Danielle Granville (Cambridge: Intersentia, 2012), 5. 42 Ellen Lutz and Caitlin Reiger, "Conclusion," in Prosecuting Heads of State, ed. Ellen Lutz and Caitlin Reiger (Cambridge: Cambridge University Press, 2009), 289. 43 Brian Grodsky, "Justice Without Transition: Truth Commissions in the Context of Repressive Rule," Human Rights Review 9, no. 3 (2008): 282. 44 Ibid., 285. 45 Grodsky, The Costs of Justice, 179. 34 than being for a domestic audience Karimov’s primary objective in creating this truth commission was to placate human rights concerns expressed by the United States. The period of mid-1999 when a truth commission was held marked a significant improvement in relations.
Grodsky explained these recourses to transitional justice by repressive rulers according to two determinants. The first is that the transitional justice mechanism must be beneficial for the ruling government, whether that be through increased foreign aid and legitimacy or the elimination of domestic political threats. The second is that the process can be adequately controlled and limited so that there is only minimal risk of negative consequences; that there is “such a high degree of control that the ruling regime can open up a can of worms with practically no risk of them slipping out”.46 He also claimed that for reasons of revenge, morality or pragmatism most new elites have a personal preference for harsh forms of justice but that this is tempered by domestic strategic concerns and its implications for their continued political survival.47
Truth commissions such as these are generally dismissed by scholars for not having been conducted in the right spirit yet it is hard to establish a definition that would explicitly exclude them.48 Moreover, Grodsky argues that these cases are important for the transitional justice literature: “While the fact that repressive leaderships also engage in transitional justice has been acknowledged with a surprising degree of disinterest, I believe that these cases can actually help us to understand broader motivations and determinants of justice”.49 Transitional justice has grown to cover a variety of different types of transition, or lack of transition, in what Thomas Hansen has called horizontal expansion.50 Yet the literature has not caught up with transitional justice mechanisms that may, far from promoting democracy, instead serve to shore up a non-democratic government, to silence certain voices, or to sell a particular message to the population.51 Franzki and Olarte have also questioned liberal assumptions. They have likened transitional justice to brand advertising, arguing that the term has come to stand for a broad range of cases whilst only actually being a subset of the cases that exist.52 They characterise transitional justice as a particular perspective on trials and truth commissions, one that sees them “as part of a global trend of political liberalisation”
46 Grodsky, "Justice Without Transition," 289. 47 Grodsky, The Costs of Justice, 27. 48 Grodsky, "Justice Without Transition," 284-85. 49 Grodsky, The Costs of Justice, 5. 50 Hansen, "The Vertical and Horizontal Expansion of Transitional Justice," 106. 51 Ibid., 114. 52 Franzki and Olarte, "Understanding the Political Economoy of Transitional Justice," 201. 35 rather than “a neutral description”.53 The label itself has already conveyed a great deal of additional, perhaps unwanted and false, information.
Those mechanisms that do not accord with the brand message of transitional justice are implicitly dismissed as illegitimate. They rarely receive engagement from the UN, foreign governments, or foreign NGOs and are often ignored in the literature although rarely overtly excluded. The truth commissions discussed above fall into this category, as does the International Crimes Tribunal (ICT) in Bangladesh.54 The ICT is currently prosecuting crimes committed by local militia who collaborated with the Pakistan army during the 1971 Liberation War. It is prosecuting crimes under international law and features some international defence lawyers but is otherwise a Bangladeshi institution. It is largely ignored by the transitional justice literature. It is presumably dismissed because of its application of the death penalty, its prosecution of opposition politicians, and lack of respect for defendants’ rights and proper procedure. This dismissal is not explicit but the lack of engagement of transitional justice scholars conveys that it is illegitimate and not deserving of the label transitional justice. Analyses of transitional justice are, I argue, weaker because of this reluctance to engage with the full diversity of cases.
Timing
The ways in which timing impacts on transitional justice are hard to generalise about. Rama Mani argues that although the timing of transitional justice mechanisms affects their success there are no discernible patterns: “it is entirely unpredictable and case- specific”.55 Earlier work stressed the importance of speed. Roht-Ariaza suggested in a 1995 piece that for new governments who wish to address impunity, “the window is usually about a year”, based primarily on case studies from Europe and Latin America.56 After this period, she argued, such measures are hindered by declining unity, increasing apathy, and prioritising other economic or social issues. Both Elster and Teitel discuss the expectation that the desire for punishment will decrease over time, but also that this expectation does not seem to apply well to mass atrocity crimes. Elster notes that
53 Ibid. 54 Suzannah Linton, "Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation," Criminal Law Forum 21 (2010): 191-311; Bina D'Costa, "Of Impunity, Scandals and Contempt: Chronicles of the Justice Conundrum," International Journal of Transitional Justice 9 (2015): 357-366. 55 Rama Mani, "Does Power Trump Morality? Reconciliation or Transitional Justice?," in Atrocities and International Accountability: Beyond Transitional Justice, ed. Edel Hughes, William A. Schabas, and Ramesh Thakur (New York: United Nations University Press, 2007), 26. 56 Naomi Roht-Arriaza, "Conclusion: Combating Impunity," in Impunity and Human Rights in International Law and Practice, ed. Naomi Roht-Ariaza (Oxford: Oxford University Press, 1995), 282. 36
“counteracting mechanisms may keep memory and resentment alive for a century or more”.57 Teitel uses the examples of delayed prosecutions for Nazi crimes in Europe. She argues that the magnitude of the crimes means their importance does not diminish but the passage of time may allow new evidence to emerge or diminish the political sensitivity of the crimes and perpetrators.58
Fletcher, Weinstein, and Rowan have some of the most specific findings on timing. They examined the impact that a number of factors, including timing, had on transitional justice processes. In the cases they examined where more than a decade had passed since the end of the conflict they found a change occurred six to eight years into the transition where the government worked to better address the needs of the victims. They found this to be the case in countries including Argentina, Guatemala, Northern Ireland, and South Africa but noted Cambodia as the exception where such a shift could not be identified.59
Questions of timing are compounded by a lack of clarity about when the transitional period is considered to end. Christine Bell has argued that there is no boundary to the idea of transition; that amongst scholars there is no limitation on when transitional justice can be applied. Scholars have, she proposed, deliberately left transition as a poorly defined concept to establish transitional justice as its own interdisciplinary field rather than a subset of multiple issues to be addressed during a transition.60 One possibility is that transitional justice is marked by the limitations and politics of the transitional period. When justice is operating normally there is no need for the label of transitional justice.61 More concretely the transition can be marked by a procedural step such as the holding of elections, or the return to normalcy when “all the politically significant groups accept the rule of law”.62 The transitional aspect of transitional justice either needs to be clarified, which would narrow the range of cases the term covers, or the idea that these justice projects are tied to a transitional period should be abandoned.
57 Elster, Closing the Books, 77. 58 Teitel, Transitional Justice, 62-64, 138. 59 Fletcher, Weinstein, and Rowen, "Context, Timing and the Dynamics of Transitional Justice," 206. 60 Christine Bell, "Transitional Justice, Interdisciplinarity and the State of the 'Field' or 'Non- Field'," International Journal of Transitional Justice 3, no. 1 (2009): 24. 61 Teitel, "Transitional Justice Genealogy," 93. 62 Teitel, Transitional Justice, 5. 37 Post-Transitional Justice
As a further challenge to existing ideas about the timing of transitional justice, an increasing number of prosecutions for mass atrocity crimes have taken place decades after the fact rather than in the immediate aftermath of mass atrocities or regime change. Prosecutions of crimes from the Second World War have spanned the decades from 1945 to the present and have predominantly focussed on the crimes of the Holocaust. One of the earliest cases was that of Adolf Eichmann who was put on trial in 1961, and hanged in 1962. This trial was also highly controversial. Eichmann had been kidnapped in Argentina in order to stand trial in the new state of Israel, which had not existed at the time he committed these crimes. Interest and controversy were also fuelled by Hannah Arendt’s coverage of the trial, her famous characterisation of “the banality of evil”, and the debates about Eichmann’s relative importance, culpability, and character. 63
In West Germany, trials were instigated by the Central Office of the State Judicial Authorities, created in 1958, and included trials of staff from Auschwitz (1963-1965), Treblinka (1964-1965), and Majdanek (1979-1981) extermination camps. France conducted trials against former Vichy officials Paul Touvier (1992) and Maurice Papon (1997) as well as against Klaus Barbie (1987).64 In July 2013 a campaign was launched in Germany called Operation Last Chance II which appealed for public help in apprehending suspected Nazi criminals with the phrase “late, but not too late”.65
Recently the phenomenon of delayed prosecutions has started to manifest for crimes other than those of the Second World War. In 2009 and 2010 Uruguay convicted two of its former military dictators, Juan María Bordaberry (1972-1976) and Gregorio Conrado Álvarez (1981-1985), for murders committed during their time in power. In 2006 alone Chile convicted 126 individuals for human rights abuses during Augusto Pinochet’s regime (1973-1990).66 From 2008 to 2013 Argentina convicted 439 people for crimes against humanity during the dictatorship (1976-1983).67 The genocide trial of former Guatemalan dictator Rios Montt for crimes in the early 1980s concluded in 2013, sentencing him to eighty years in prison, although this decision was invalidated by the Constitutional Court and hearings have been repeatedly postponed, restarted, and
63 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking Press, 1963; repr., London: Penguin Books, 2006). 64 Henry Rousso, The Haunting Past: History, Memory and Justice in Contemporary France, trans. Ralph Schoolcraft (Philadelphia: University of Pennsylvania Press, 2002). 65 "Germany Poster Campaign Launched to Find Surviving Nazis," BBC News, 23 July 2013. 66 United States Bureau of Democracy, Human Rights, and Labor, "2006 Report on Human Rights Practices: Chile," (2007). 67 Centro de Información Judicial, "Hubo 439 Condenas En Todo El País Por Crímenes De Lesa Humanidad," 31 May 2013. 38 annulled since then.68 Hissène Habré was found guilty of human rights abuses for crimes committed during his presidency of Chad (1982-1990) and in 2016 was sentenced to life in prison. His case was heard by a special court in Senegal, the Extraordinary African Chambers.69 In Bangladesh the International Crimes Tribunal has so far convicted more than thirty people, issuing sentences of death or lengthy terms of imprisonment.70
These cases clearly demonstrate that it is possible to prosecute decades after the fact. Latin America has been prominent amongst these new trials and it is there that the first studies have been based. Just as the first discussions of transitional justice occurred in the context of transitions to democracy, these states have now transitioned to democracy and thus are cases of democratic governments addressing past mass atrocity crimes. Accordingly, Elin Skaar used the term post-transitional justice to refer to cases brought before the courts “at least one electoral cycle after the transition to democratic rule” in Chile, Argentina and Uruguay.71 Skaar demonstrated the central role of courts and judges in this trend; in the countries she studied judicial reforms had led to increased judicial independence and court activism. She identified three additional factors which influenced the presence of delayed prosecutions: public support for trials, a decreased military threat, and a sufficient legal basis for prosecution.72
Cath Collins has also examined these prosecutions and their link to democracy in Latin America, with a focus on Chile and El Salvador. Collins discussed post-transitional justice as a revisiting of the agreements made during the transitional period. She argued that there are six aspects of post-transitional justice which distinguish it from transitional justice: post-transitional justice focuses on perfecting democracy where transitional justice only established the minimum conditions, it questions the acceptability of compromises made during the transition, it is most frequently instigated by private actors working outside the state apparatus, it encompasses multiple forms and actors, because of this diversity it can have multiple and varied aims, and it is more likely to be international in some way. Despite this final point, Collins minimised the role of international actions in propelling prosecutions in Chile, arguing that the importance of Pinochet’s house arrest in London has been overemphasised. Instead, she accounted for
68 Elisabeth Malkin, "Guatemalan Court Overturns Genocide Conviction of Ex-Dictator," New York Times, 20 May 2013; Amnesty International, "Guatemala: Rios Montt Trial Delay is a Letdown to Genocide Victims," 6 November 2013. 69 Human Rights Watch, "Hissène Habré Trial: Witness Hearings Ending," 13 December 2015. 70 David Bergman, "Death Sentences for Two Bangladesh Leaders Upheld," Al Jazeera, 18 November 2015; "Bangladeshi War Crimes Court Sentences Four to Death," SBS News, 3 May 2016. 71 Elin Skaar, Judicial Independence and Human Rights in Latin America: Violations, Politics, and Prosecution (New York: Palgrave Macmillan, 2011), 2-3. 72 Ibid., 14-17. 39 trials on the basis of judicial reform and the role played by “legally literate, domestic, pro-accountability actors” and the strategies that they employed.73
One particularly useful aspect of post-transitional justice scholarship is that whilst transitional justice literature discusses the limitations of the transitional period it does not consider how long these limitations last. Connected to this idea is the boundary between the transitional and post-transitional period. The focus thus far on democratic post-transitional justice is evident here. In a transition to democracy, the transitional period can be considered over when democracy has been achieved to a specified level; for example, Skaar’s one electoral cycle. However, Collins has claimed that these concepts are applicable beyond Latin America. Although their validity is not necessarily geographically limited—they may well apply in other parts of the world—the analyses presented are limited to democratic transitions.
Journeys
It is important to consider not just how transitional justice is timed but how transitional justice treats time. Alexander Hinton has discussed the idea of “transitional justice time” which he assessed as prevalent amongst transitional justice scholars and advocates.74 He argued that this “foreshortened vision of the authoritarian past is set against an imagined liberal democratic future, with transitional justice as the mechanism of teleological change. This splitting of past and future, mediated by a liminal present, is linked to a series of binary oppositions, such as contamination/purity, savagery/civilization, authoritarian/democratic, and so forth”.75 Transitional justice has little concept of what lies between the period of atrocities and the use of a transitional justice mechanism, a period of time that is often erased to the detriment of understanding how the intervening period has impacted on the transitional justice process.
This simplification of a country’s history is linked to the liberal assumptions of transitional justice and the uncertainties of timing. If transitional justice is a crucial part of the liberalising journey then the time between the end of the period of mass atrocities and the start of transitional justice does not easily fit the narrative, and hence is excluded. If transitional justice is intimately tied to the transitional period, then a country is presumed to have been in stasis.
73 Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (University Park, Pennsylvania: Pennsylvania State University Press, 2010), 3, 22, 26. 74 Alexander Hinton, "Uncle San, Aunty Yan, and Outreach at the Khmer Rouge Tribunal," in Genocide and Mass Atrocities in Asia: Legacies and Prevention, ed. Annie Pohlman and Deborah Mayersen (New York: Routledge, 2013), 87. 75 Ibid., 88. 40
Transitional justice is also therefore portrayed as a journey. For some, it is a specific journey; Teitel says as “the question of transitional justice is worked through, the society begins to perform the signs and rites of a functioning liberal order”.76 For others it is about creating any sort of historical break more broadly. Hinton says transitional justice resembles a rite of passage, with a prominent role for symbolism, performance, and the formation of narratives.77 Bevernage also emphasises that “historical discourse is used primarily in a performative way in an attempt to ‘distance’ the past and reinforce or impose a break between past and present” and describes it as a kind of exorcism.78
The danger with these conceptions of “transitional justice time” that Hinton identifies is that the transitional justice literature pays minimal attention to a period of time that can last decades; the period before transitional justice is employed. Studies that take a much more contextualised approach are needed to understand how the political and societal changes that occurred during those years shaped the emergence of transitional justice, and the specific form that it took. In the following chapter I discuss the nearly two decades between the end of the Khmer Rouge regime and the first discussions that led to the ECCC in order to provide such a context.
Conclusions
Transitional justice’s roots in liberal democracy have wide ranging and ongoing implications for how it is studied. Transitional justice mechanisms are often presumed to be implemented by states in order to pursue liberal democratic goals, and the most common question posed in transitional justice literature is what should be done in any given situation. Mechanisms which do not conform to these expectations, but which nonetheless fall within definitions of transitional justice, are excluded without justification.
The ECCC conforms to the dominant expectations of the literature in some ways. Its creation falls within the world’s move towards accountability and is part of the groups of mechanisms created by or with the UN. It is a mechanism that addresses crimes of a previous regime that occurred on a massive scale. It fits easily into most definitions offered of transitional justice.
76 Teitel, Transitional Justice, 221. 77 Alexander Hinton, "Introduction: Toward an Anthropology of Transitional Justice," ed. Alexander Hinton, Transitional Justice: Global Mechanisms and Local Realities After Genocide and Mass Violence (New Brunswick, N.J.: Rutgers University Press, 2010), 8. 78 Berber Bevernage, History, Memory, and State-Sponsored Violence: Time and Justice (New York: Routledge, 2012), 56. 41 In many other ways Cambodia and the ECCC defy the expectations of the literature. The timing of the transition is unclear; the Khmer Rouge regime lasted from 1975 to 1979, yet elections were not held until 1993, the Khmer Rouge movement was not defeated until 1999, and the transitional justice mechanism was not fully established until 2007. More than thirty-five years after the fall of the Khmer Rouge regime the trials are ongoing. The type of transition is also unclear and does not conform to a straightforward liberalising narrative. The Khmer Rouge were replaced by a communist government and although elections have been held regularly since 1993, Hun Sen has been Prime Minister since 1985. There is no evidence that Cambodia’s ruling party has any interest in democratising, through the impact of the ECCC or any other means. Without the goal of liberal democracy, cases such as Cambodia are hard to situate in the transitional justice literature. Ignoring cases where the government is not democratic prevents an understanding of the different motivations and justifications that drive transitional justice.
43
Chapter Two – Confronting the Past, 1979-1996
Giving testimony in a packed courtroom Pech Tum Kravel recounted events during the Khmer Rouge regime:
They killed men with sticks, tied them up by the neck, and burned them alive. They killed them and pushed them into rivers…. one could no longer drink the water because there were so many corpses floating on the surface. …my family and I lost all human rights. We lived like animals. Every day we lived in fear, in poverty, in grief, in a tragedy that we had never before known. 1 These horrific details, and many others delivered by witnesses that week, would receive no international attention or outcry; they were never heard outside Cambodia. These people were testifying before the 1979 People’s Revolutionary Tribunal (PRT), a court established in Phnom Penh six months after the overthrow of the Khmer Rouge.
The history of transitional justice in Cambodia does not begin with the UN-organised election in 1993 nor with the letter sent by Cambodia’s Co-Prime Ministers to the UN Secretary-General in 1997 requesting assistance with a Khmer Rouge tribunal. Rather, it begins in the immediate aftermath of the downfall of the Khmer Rouge. Cambodia had to decide how to begin to grapple with the devastation wrought by the Khmer Rouge and the new government and various sections of the Cambodian population had different priorities and desired outcomes from these processes.
I begin this chapter with a discussion of the crimes committed during the Khmer Rouge regime, including how they have been prosecuted before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I then focus on the period between the end of the Khmer Rouge regime in 1979 and the UN’s engagement in the project of accountability in Cambodia in 1997. The new government in Phnom Penh, the People’s Republic of Kampuchea (PRK), instituted a multifaceted approach to considering the crimes of the Khmer Rouge during its first years in power. It held a trial, created a museum at a former interrogation centre, instituted a historical research commission, designated a national day of remembrance, and incorporated the Khmer Rouge past into the national education system. Faced with the continued military presence of the Khmer Rouge in
1 "Witness Statement of Mr. Pech Tum Kravel," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 102. 44 areas near the Thai border it also encouraged defections to weaken the movement. The PRK was building a multifaceted narrative of the Khmer Rouge regime. It attributed the crimes of the regime to only the top leaders. The Khmer Rouge’s policies were linked more to fascism than to communism. The PRK emphasised that there should be continued anger against the Khmer Rouge which would be channelled into building and defending the country. And the PRK and its leaders were themselves the saviours of the nation. This narrative was important at the time as many members of the PRK government were themselves former members of the Khmer Rouge and hence had to carefully shape their legitimacy to govern.
Previous national initiatives that considered the Khmer Rouge past are also integral to understanding the ECCC. The ECCC was not created in a vacuum but rather was built on decades of existing policy. There has been immense continuity of leadership in Cambodia since 1979: people who were involved in the overthrow of the Khmer Rouge remain in the highest positions of the Cambodian government and the ruling Cambodian People’s Party (CPP), including the Prime Minister. Accordingly, many of the same narrative concerns that I discuss in this chapter continue to be pertinent at the ECCC.
In the final section of this chapter I consider Cambodia’s re-entry onto the international stage. In the early 1990s Cambodia was the site of a UN peacekeeping mission unprecedented in its size and scope. Any attempts to discuss transitional justice or accountability were pushed aside as the Khmer Rouge leaders were welcomed as equal partners in the peace process. However, frequent violations of the ceasefire by the Khmer Rouge saw them become pariahs on the international stage for the first time since their overthrow. Also during the UN mission, the newly legitimised Cambodian authorities learnt how to interact with the UN, its limitations, and the importance of being seen to be following the rules. With these lessons in hand and a significantly weakened Khmer Rouge, the stage was set for UN engagement with the issue of accountability in Cambodia.
The Crimes of Democratic Kampuchea
The Khmer Rouge regime, and the crimes considered by the ECCC, began with the fall of Phnom Penh on 17 April 1975. The newly arrived soldiers began forcibly evacuating everyone in the city that was swollen with refugees, including emptying the hospitals of patients. The explanation Khmer Rouge soldiers gave was that American bombing was imminent. This story had credibility since an extensive American bombing campaign had 45 been conducted from 1969 to 1973, dropping more than half a million tons of ordnance on Cambodia.2
Who exactly was ordering this evacuation was unclear at the time. The Khmer Rouge was the label given to the Cambodian communists but the existence of the Communist Party of Kampuchea (CPK) was kept secret until 1977.3 The former king Norodom Sihanouk, who had been ousted as head of state in 1970, was nominally reinstalled as head of state of Democratic Kampuchea, the name for the Khmer Rouge’s Cambodia. In reality he was an impotent figurehead who resigned after a year and was placed under house arrest. Pol Pot, the leader of the Khmer Rouge as General Secretary of the CPK, was not named as Prime Minister until April 1976. What Cambodians knew was that the ominous Organisation (Angkar in Khmer) was in charge. Angkar was omnipotent and omnipresent, for people at the village level a shadowy figure, and for those at the high levels of the party it represented the people in charge, Pol Pot and Nuon Chea, Deputy Secretary of the CPK.4
Much later, during his trial before the ECCC, Nuon Chea sought to justify the evacuation of Phnom Penh. He said that the Khmer Rouge was concerned about possible bombing, that if the Americans had bombed the city the Vietnamese would have sent forces ostensibly in support “but instead to control us, to invade us”, and that food shortage meant that “in order to prevent the further loss of the lives of the people, we needed to evacuate the people to various provinces and cooperative so that they would have food to eat”.5 These explanations fail to take account of the fact that the Khmer Rouge had already emptied other towns in the areas it controlled, the “liberated zones”, or that the logistics of feeding millions of people were more difficult if they were being forced to move throughout the country.6 A document from the CPK’s Central Committee explains that, instead, the evacuation was meant “to preserve the political position of cadres and combatants; to avoid a solution of peaceful evolution which could corrode [the revolution] from within; to fight corruption, degradation and debauchery; to get the
2 William Shawcross, Sideshow: Kissinger, Nixon, and the Destruction of Cambodia (London: The Hogarth Press, 1986), 297. 3 David Chandler, The Tragedy of Cambodian History: Politics, War, and Revolution since 1945 (New Haven: Yale University Press, 1991), 238. 4 Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the Khmer Rouge, 1975-1979, 2nd ed. (New Haven: Yale University Press, 2002), 33. 5 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 189," Case File 002/19-09-2007-ECCC/TC, E1/202.1, 6 June 2013, 38; Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 9," Case File 002/19-09-2007-ECCC/TC, E1/21.1, 13 December 2011, 29. 6 Kiernan, The Pol Pot Regime, 390. 46 urban population to take part in [agricultural] production”.7 The decision to evacuate the city was made earlier in 1975 when a wide raft of policies were adopted which aimed to transform society, including through the abolition of money and private property.8 The evacuation was born of the knowledge on the part of the Khmer Rouge leadership that they could not maintain control of their revolution in a city that their propaganda called “the great prostitute on the Mekong”.9 From these leaders’ point of view, the evacuation would act as an easy way to strip urban residents of nearly everything. As Khieu Samphan explained, “The few belongings [they] were able to carry with them will be worn out or used up within two or three years”.10
At the ECCC, civil party Sou Sotheavy remembered how she was forced to leave: “They threatened all the people at gunpoint and if anyone who resisted such order, they would risk being shot at. And we were very frightened”.11 Another civil party, Nou Hoan said of conditions along the road, “There were flies, flies were everywhere like a cloud of bees…. Some people died and [were] left along the street. And those who were sick could not seek any help from anyone. And we were forced by Angkar to just keep going, so some of us would have to leave their sick family members behind”.12 Recalling a particularly brutal scene, civil party Chheng Eng Ly said that as she was crossing Monivong Bridge to leave Phnom Penh, “I saw a crying baby. He was actually crawling over the dead body of his mum. I wanted to carry that baby. I wanted to take the baby. ... But all of a sudden when the soldier carried this baby, they just tore the baby apart. It was a very horrifying scene. I could not imagine any human being who would do that”.13
At the same time as the Khmer Rouge were taking control of the capital, an announcement went out over Phnom Penh radio ordering “all ministers and generals to come to the Ministry of Information at once to organize the country”.14 Some ministers and officers, including president of the preceding government Lon Nol himself, had already fled the country, and others used the chaos to disguise their previous identity. Those that obeyed the Khmer Rouge summons, often already suspecting their fate, were
7 Quoted in Philip Short, Pol Pot: The History of a Nightmare (London: John Murray Publishers, 2004), 287. 8 Chandler, The Tragedy of Cambodian History, 247. 9 Ibid. 10 Short, Pol Pot, 287-88. 11 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 184," Case File 002/19-09-2007-ECCC/TC, E1/197.1, 27 May 2013, 14. 12 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 186," Case File 002/19-09-2007-ECCC/TC, E1/199.1, 30 May 2013, 6-7. 13 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 185," Case File 002/19-09-2007-ECCC/TC, E1/198.1, 29 May 2013, 98. 14 Francois Ponchaud, Cambodia: Year Zero (New York: Holt, Rinehart and Winston, 1978), 29. 47 killed.15 One technician saw soldiers from the Lon Nol government being led away. When he asked a Khmer Rouge soldier what happened to them he was told “We kill them all because they’re traitors and deserve to be shot”.16 One Khmer Rouge cadre later recounted to Ben Kiernan that one of the eight points of policy Pol Pot listed in May 1975 was to “execute all leaders of the Lon Nol regime beginning with the top leaders”.17 This policy extended from soldiers to anyone with links to the former government; they might be killed after being stopped at road blocks and giving honest answers about their background or because they were betrayed by others.18
The killing of Lon Nol soldiers which occurred at Tuol Po Chrey in Pursat Province, the Northwest Zone during Democratic Kampuchea, was the representative example chosen by the ECCC. Lon Nol soldiers were summoned to a meeting and told they would be re- educated before being reintegrated into the army. They were then loaded onto trucks, but a kilometre later they were forced off the trucks, tied up, and killed. The bodies were then either buried at the site or bulldozed into a nearby pond. A video played during the court session showed the interview of a man describing the scene: “When I was small I came here. The killing had already happened. The bodies were bubbling like molten tarmac. …the Khmer Rouge buried the bodies with bulldozers. They were cutting the heads off some of the bodies”.19 At least two hundred and fifty former soldiers were killed at Tuol Po Chrey, with some estimates as high as three thousand.20
Those with direct ties to the Lon Nol government had been singled out in the early phase of the Khmer Rouge regime but all urban evacuees bore the stigma of their former residence throughout the regime. The people evacuated from Phnom Penh were referred to as New People or 17 April People and comprised approximately thirty percent of the population.21 These New People, unlike the Old People or Base People, were to be treated
15 Ibid., 29-30. 16 Ibid., 28. 17 Kiernan, The Pol Pot Regime, 55. 18 Steve Heder quotes from a confession taken at the interrogation centre S-21 from Cho Chhan, who in April 1975 was the Deputy Secretary of the North Zone: “After the liberation of the entire country the Organisation put forward a policy of successively exterminating officers, starting from the generals and working down through to the lieutenants, as well as government investigative agents, policemen, military police personnel and reactionary civil servants.” Stephen Heder, "Pol Pot and Khieu Samphan," Working Paper, Centre of Southeast Asian Studies, Monash University 1991, 8. 19 "Witness Testifies on Alleged Execution of Lon Nol Soldiers at Tuol Po Chrey," Cambodia Tribunal Monitor, http://www.cambodiatribunal.org/2013/04/30/witness-testifies-on-alleged- execution-of-lon-nol-soldiers-at-tuol-po-chrey/, 30 April 2013. 20 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Case 002/01 Judgement," Case File 002/19-09-2007/ECCC/TC, E313, 7 August 2014, 391-95. 21 Kiernan, The Pol Pot Regime, 164. 48
“as enemies” and were described by one civil party as “prisoners of war”.22 A system gradually extended throughout the country of dividing people into full-rights members, candidates, and depositees. The first were the mostly privileged in the new regime, generally the poorer peasants who were given greater rations, initially allowed to grow food to supplement their rations, and were permitted to be members of the army and to hold political positions at the cooperative level. Candidates were often those who had been slightly wealthier under the old regime and were permitted only to hold basic administrative positions. Despositees, or New People, were fed the least, given the worst housing or made to build their own accommodation in difficult areas with unfamiliar tools, and were generally treated with greater suspicion.23
As civil party Bay Sophany recounted, “The Base People who were considered to live in a liberated zone, they had more than what we had, they had sufficient rice to eat. We, the 17 April People, only ate watery gruel with a few grains of rice and we only had salt to eat. … While we were working, we were watched by armed people. Even during the night time when we were sleeping, people would be walking around and monitoring us”.24 When she moved to a new village and revealed herself and her family to be evacuees from Phnom Penh, the Khmer Rouge sent civil party Pech Srey Phal and her family to live on a mountain top. She was told they “had to be tempered at that mountain”.25 She said “There was no shelter, no food, no water, no medicine up the mountain. …they [the Khmer Rouge soldiers] just abandoned us on the top of the mountain without giving us any food… during the time that we were living at the top of the mountain for about two months, everyone was emaciated”.26 She said they were treated harshly because, for the Khmer Rouge, “the New People were almost considered as traitors; the capitalists or the feudalists. And we were rejected by them. We were accused of being feudalists, had a tendency toward the Lon Nol or the CIA”.27 Another civil party who testified before the ECCC, Sam Sak, said, “I was seriously mistreated since I was considered a 17 April Person. They hated so much the 17 April People so much because 17 April People were said to be
22 Short, Pol Pot, 292; Trial Chamber, "Transcript of Trial Proceedings, Trial Day 184," 26. 23 Short, Pol Pot, 292; Alexander Hinton, Why Did They Kill? Cambodia in the Shadow of Genocide (Berkeley: University of California Press, 2005), 205-06; Chandler, The Tragedy of Cambodian History, 254. 24 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 187," Case File 002/19-09-2007-ECCC/TC, E1/200.1, 4 June 2013, 29. 25 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 135," Case File 002/19-09-2007-ECCC/TC, E1/148.1, 5 December 2012, 36. 26 She recounted the ways they were forced to survive, “There was no water but on top of the mountain there was plenty of dew, so then we used our clothes, our scarfs in the open in order to attract the dew and we fetch it once in midnight and once again in the early morning”. Ibid., 41- 42. 27 Ibid., 43. 49 capitalists and feudalists”.28 The New People who had been intellectuals or members of the bourgeois were particularly targeted.
As well as targeting particular social or class groups that existed before 1975, the Khmer Rouge also sought to erase racial distinctions. The Vietnamese and Cham Muslim populations were particularly targeted.29 A state informational booklet about Democratic Kampuchea from 1977 seems to assert the Khmer Rouge’s preferred ethnic makeup of Cambodia, saying that ninety-nine percent of the population were ethnic Khmer. As Kiernan observed, “Chams, Chinese, Vietnamese, Thais, Lao and twenty other groups, who comprised close to 20 percent of the population, were virtually erased from history”.30
The Chams were particularly distinctive as they wore different clothes and practiced a different religion, Islam. Their violent cultural assimilation was pursued through the forced dispersal of all Cham communities and the prohibition of anything that indicated cultural difference.31 When Khmer Rouge attempts to assimilate the Chams were met with resistance and rebellions the discrimination and violence only increased.32 Cham civil party Moeu Pov recalled that “In 1975, the cooperative made an announcement for the Cham people to cut their hair short and to cover – not to use scarf to cover their head and that we were forced not to live in a group” and that this “was the most difficult thing for the Cham people, as we lost our own identities, lost our religion”.33 Another Cham civil party, No Satas, recalled that after she was relocated to a new village all the newcomers were tied up. “After they tied us up and lined us up, they questioned us, asking whether we were Cham or Khmer. Then if somebody answered that she was Cham, then she would be taken out from the line, escorted by an armed person either with a weapon or with a knife … they disappeared since”.34 She told the district chief that she was Khmer, but before anyone was released “they had a celebration as they killed a
28 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 321," Case File 002/19-09-2007-ECCC/TC, E1/340.1, 2 September 2015, 12. 29 Khmer Rouge leaders were initially deeply impressed with the minority tribes in Cambodia’s northeast, Ieng Sary praised that they were “faithful to the revolution, not commercially oriented, and …had class hatred”. Although these groups were at times favoured they also suffered the same conditions all Cambodians did during the regime, faced cultural assimilation, and were crushed if they offered any resistance. Chandler, The Tragedy of Cambodian History, 175; Kiernan, The Pol Pot Regime, 305-09. 30 Kiernan, The Pol Pot Regime, 251. 31 Short, Pol Pot, 326; Kiernan, The Pol Pot Regime. 32 Hinton, Why Did They Kill, 207. 33 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 374," Case File 002/19-09-2007-ECCC/TC, E1/393.1, 29 February 2016, 7-8. 34 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 331," Case File 002/19-09-2007-ECCC/TC, E1/350.1, 28 September 2015, 56. 50 pig and cooked it in a curry soup. That day I had to force myself to eat pork. So I ate a few pieces of pork in order to survive, to make them believe that I was not a Cham person”.35 In another part of the country, Moeu Pov’s father refused to eat pork and so was refused any food and died of starvation.36 Kiernan has estimated that ninety thousand Chams died during the Khmer Rouge regime, out of a 1975 population of two hundred and fifty thousand, making a thirty-six percent death rate, higher than the twenty-one percent for the country as a whole.37
As for the Vietnamese, the Khmer Rouge expelled a hundred and fifty thousand ethnically Vietnamese people between April and September 1975 and the approximately ten thousand who remained were then “systematically exterminated by 1979”.38 They were not seen as Cambodian, with a Khmer Rouge document referring to them as “Vietnamese residents whom Vietnam had secretly infiltrated into Kampuchea and who lived hidden, mixed with the population”.39 The Revolutionary Flag magazine, a publication for Khmer Rouge cadres, wrote in April 1977 that it was important to unmask “the territory-swallowing Yuon [a derogatory term for the Vietnamese]… some of whom still remain after we have smashed them to bits, it is imperative to whip-up the people to sweep more of them clean and make things permanently clean”.40 In the language of Democratic Kampuchea to sweep clean or to smash meant to kill.
Civil party Khuang Moy’s parents spoke Khmer with an accent because they came from Chinese and Vietnamese backgrounds and “[t]hat’s the reason they were taken away and killed”.41 She told the court that “[a]fter they learned that my mother was ethnically Vietnamese, I received insufficient food to eat. I had only watery gruel. I was mistreated because of the fact that I was half-blooded Vietnamese”.42 The Khmer Rouge also conflated all enemies with the Vietnamese. Those who opposed the Khmer Rouge were described as having “arms and legs of the Yuon” or “Cambodian bodies and Vietnamese heads”.43
35 Ibid., 58. 36 Trial Chamber, "Transcript of Trial Proceedings, Trial Day 374," 10-11. 37 Kiernan, The Pol Pot Regime, 458. 38 Ibid., 296, 460. 39 Ibid., 107. 40 An English language translation of this document is available as Extraordinary Chambers in the Courts of Cambodia, "Revolutionary Flag Special Issue," Document Number E3/742, April 1977, 11. 41 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 375," Case File 002/19-09-2007-ECCC/TC, E1/394.1, 1 March 2016, 44. 42 Ibid., 54. 43 Hinton, Why Did They Kill, 219; David Chandler, Voices from S-21: Terror and History in Pol Pot's Secret Prison (Chiang Mai: Silkworm Books, 2000), 72. There is long-standing academic debate about whether the persecution of the Vietnamese and Chams by the Khmer Rouge was racially 51
Whilst the Khmer Rouge had particularly discriminatory policies towards urban evacuees and ethnic minorities, the entire country also became what survivors have described as a “prison without walls”.44 The entire country was organised into rural cooperatives and mobile work brigades. Money and markets were abolished, and increasing collectivisation meant that private property no longer existed and all meals were taken communally. The goal was a rural society without class distinctions and the focus was on building the country and the revolution through increased population and increased agricultural production.
In the new collective society, family ties were discouraged; all loyalty was to be given to Angkar. One issue of the Revolutionary Flag magazine said that “anyone who thinks about family interest deceives the revolution, renounces the revolution, and lives separately seeking family happiness rather than happiness within the party”.45 However, part of building the country was also building the population to ensure a large enough workforce and enough soldiers to fight Vietnam; Nuon Chea observed in a 1981 interview that they were “faced with the problem of being sparsely populated”.46 This desire for population but not family underpinned the Khmer Rouge’s policy of forced marriage. This facet of the Khmer Rouge regime had received very little attention until civil party applications were lodged at the ECCC which included details of forced marriages.47 Couples were often given no choice, and even no notice, that they would be married or to whom. Ceremonies would then be conducted en masse and without observing any traditional rituals and without the presence of family members. The Co-Lawyers for the Civil Parties cited an estimate that four hundred thousand people had been forcibly married by the Khmer Rouge.48
Civil party Sou Sotheavy, who is a transgender woman forced to live as a man during the Khmer Rouge, was breaking rocks when she was summoned to what she assumed was a
based and therefore fell within the legal definition of genocide. See, for example, Short, Pol Pot, 11, 446; Kiernan, The Pol Pot Regime, 251-52, 460-62; Chandler, The Tragedy of Cambodian History, 285. In Case 002/02 the Co-Prosecutors are seeking to prove that it was genocide. 44 Hinton, Why Did They Kill, 1. 45 An English language translation of this document is available as Extraordinary Chambers in the Courts of Cambodia, "Revolutionary Flag Special Issue," Document Number E3/10, September- October 1976, 39. 46 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 200," Case File 002/19-09-2007-ECCC/TC, E1/213.1, 26 June 2013, 22. 47 Peg LeVine argues that “conscripted marriage” is a better term but I will use the terminology employed at the ECCC. Peg LeVine, Love and Dread in Cambodia: Weddings, Births, and Ritual Harm under the Khmer Rouge (Singapore: NUS Press, 2010). 48 Extraordinary Chambers in the Courts of Cambodia, "Civil Parties' Co-Lawyers' Request for Supplementary Preliminary Investigations," Case File 001/18-07-2007/ECCC/TC, E11, 9 February 2009, 17. 52 study session. More than a hundred couples were lined up and told they would be married, that “the population of Cambodia was not that great… and for that reason Angkar required us to get married to increase the population”. None of the couples refused to get married but “we could see that some people shed their tears quietly”.49 Witness Chean Sreimom married a man she hated because “if I refused their proposal I would be accused of opposing the Party and my whole family would be considered opposing the Party and that meant it’s my death”.50
Couples would then be monitored in their homes that night by Khmer Rouge cadre to ensure they consummated the marriage. Chean Sreimom recalled, “I had to sleep with my husband because I would be in danger if I did not sleep with my husband. Because there was a militiaman eavesdropping, I submitted myself to be a wife. I could not avoid, so I tried to take this”.51 Sou Sotheavy initially refused to have sex with her wife, but the couple had sex once after being repeatedly threatened. Another civil party, who testified anonymously, resisted her new husband’s attempt to have sex with her the night of their marriage. Her husband complained to the chief who took her to another room and raped her, “He said that if… I shouted, then I would be shot dead. And after that warning, after that rape, that I had to shut my mouth and had to agree to live with my newlywed husband”. She would meet her husband approximately every fifteen days and they would be monitored to ensure they had sex.52
Part of the rationale behind this push to increase the population was to build the workforce for ambitious agricultural projects. Nearly everything that Cambodians had known had been taken from them; what remained were forced labour projects where Cambodians worked long hours doing whatever Angkar decreed. The new agricultural target was expressed simply and in slogan form, “three tons per hectare”, referring to the amount of unhusked rice to be produced. Whilst before 1970 the average had been less than one ton per hectare this new goal would be achieved through increasing the amount of land producing two rice crops per year, clearing new land for cultivation, and particularly by building new large-scale irrigation systems.53 Pol Pot expressed the importance of agriculture at a meeting of the Khmer Rouge leadership shortly after
49 "Segment on Forced Marriage Begins," Cambodia Tribunal Monitor, http://www.cambodiatribunal.org/2016/08/23/segment-on-forced-marriage-begins/, 23 August 2016. 50 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 235," Case File 002/19-09-2007-ECCC/TC, E1/254.1, 29 January 2015, 22. 51 Ibid., 28. 52 "Segment on Forced Marriage Begins." 53 David Chandler, Brother Number One: A Political Biography of Pol Pot (Chiang Mai: Silkworm Books, 2000), 116-17. 53 taking control of Phnom Penh when he declared that “Agriculture is the key both to nation-building and to national defence”.54 This idea was also expressed in a published excerpt from a Zone assembly where a Khmer Rouge leader (probably Pol Pot) said “We want to build socialism quickly, we want our country to change quickly, we want our people to be glorious quickly. But especially to prevent the enemy from making us suffer. …. Three tons means national defense. The enemy is hesitant towards us”.55
However, these targets could not be met. The most physically strong were deployed as mobile work units to build dams and other irrigation projects, but the harsh conditions and diminishing food rations meant much of the workforce was in no state to do manual labour. Nor were people motivated to do so other than to avoid punishment.56 Low-level Khmer Rouge cadre were reluctant to admit to their superiors that targets had not been met, and so they sent falsely optimistic reports and more rice than they could afford to part with, leaving too little to adequately feed the population.57 Even when the Khmer Rouge leaders were aware that targets had not been met, they did not blame the policies but rather enemies. As Nuon Chea explained to the ECCC in 2011, some cooperatives did not have enough food “due to those bad elements and that was the real situation… we instructed to screen good seedlings and seeds, but then the bad elements would only put the bad and spoil [sic] seeds for transplantation”.58
Civil party Sen Sophon described working conditions at a dam site where “the bell was rung at 4:00, and if anyone did not get up by that time then the person would be whipped”.59 They would go to sleep at 10pm; “I did not have the actual strength to work the next day but I had to force myself; otherwise I would be deprived of food”.60 Describing the conditions at the Kampong Chhnang airbase, civil party Kong Siek said they were told “you have to work until your blood comes out of your body”.61 She added, “We were subjected to enslavement during that period…. I was made to carry earth and to dig the canals even if my hands could hardly hold the hoe anymore, but I was forced
54 Short, Pol Pot, 288. 55 Quoted in David Chandler, Ben Kiernan, and Chanthou Boua, eds., Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea, 1976-1977 (New Haven: Yale Center for International and Area Studies, 1988), 26. 56 Short, Pol Pot, 352. 57 Ibid., 353; Chandler, Brother Number One. 58 Trial Chamber, "Transcript of Trial Proceedings, Trial Day 9," 32. 59 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 304," Case File 002/19-09-2007-ECCC/TC, E1/323.1, 27 July 2015, 62. 60 Ibid., 63. 61 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 299," Case File 002/19-09-2007-ECCC/TC, E1/318.1, 17 June 2015, 57-58. 54 to continue working. I had to work because I fear[ed] for my life”.62 Another civil party, Chou Kimlan, described losing her three year-old child “because she was deprived of food. As a result she became sick and after that she passed away”.63 Her older son “died because he picked up the potato to eat. He did not have enough food to fill his stomach, and then he went to pick up the potatoes and he was killed”.64
The widespread starvation, particularly after conditions worsened in 1977, meant that people wanted to forage or steal food but to do so was risky. Civil party Oem Saroeurn testified that “in 1977, my friend stole some food and Angkar – she was caught by Angkar. Two of them were arrested and raped and they disappeared since, so they died”.65 Another civil party, Iem Yen, who was seven years old when the Khmer Rouge took control of Cambodia, was beaten on her abdomen with a bamboo stick by the chief of her unit for stealing cassava from an ox cart.66 Any infractions were met with violence. When Iem Yen ran away from her work digging earth at a dam site she was punished again: “I was buried alive and nothing could compare to it. I was buried to up to my neck. I could not move and I could not do anything. I tried to call my parents, but no one would answer my call, and it was the greatest pain I experienced”.67 The brother of civil party Sieng Chanthy wounded a cow’s leg whilst ploughing the field “[a]nd he was accused of destroying Angkar’s property. Then they arrested him. They walked him behind a bicycle while whipping him….There was blood everywhere on his body, and I could hardly identify him”.68 These punishments were particularly harsh for the New People who would often face much more violent or even deadly punishments than Old People who committed the same crime.69 Infringements were not seen as ordinary crimes or infractions; rather, they were betrayals of the collective and indications of the wrong consciousness.70
62 Ibid., 83-84. 63 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 234," Case File 002/19-09-2007-ECCC/TC, E1/253.1, 27 January 2015, 32. 64 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 233," Case File 002/19-09-2007-ECCC/TC, E1/252.1, 26 January 2015, 51. 65 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 264," Case File 002/19-09-2007-ECCC/TC, E1/283.1, 26 March 2015, 6. 66 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 267," Case File 002/19-09-2007-ECCC/TC, E1/286.1, 1 April 2015, 57. 67 Ibid., 61. 68 Trial Chamber, "Transcript of Trial Proceedings, Trial Day 375," 7-8. 69 Hinton, Why Did They Kill, 205-06. 70 Alex Hinton reports on the case of Touch who was taken away for digging up cassava roots. His three Khmer Rouge executioners proceeded to cut out his liver, fry it, and eat it. “In doing so, the perpetrators perform another horrifying mimesis. If Touch has violated the community by extracting and consuming its food, he is punished by a bodily violation in which his liver is removed and eaten by representatives of the collective”. Ibid., 291. 55
Alongside this brutal and arbitrary punishment regime, there was also a nationwide system comprising scores of prison and torture centres which served a different purpose. The Khmer Rouge regime was particularly concerned with internal enemies. At a speech in late 1976, Pol Pot said that there was “a sickness inside the party” which would “rot society, rot the Party, and rot the army”. “We cannot locate it precisely. The illness must emerge to be examined…. We search for the microbes within the Party without success. They are buried”.71 The party was purging its ranks at all levels. High-ranking leaders such as Deputy Prime Minister Vorn Vet, along with thousands of others often ignorant of the crime they had committed, were sent to the Phnom Penh centre S-21. As David Chandler explains, people were “guilty because they had been arrested rather than arrested because they were guilty”.72 Prisoners at S-21 would be forced to produce confessions, often to be rewritten until they were acceptable, and with lists of their associates as “strings of traitors”. Once their confessions were complete, they would be executed. These confessions would then justify and fuel the next purges in a never ending cycle.73
Hundreds of thousands of people were executed or died violent deaths, accounting for approximately half of the 1.7 million deaths during the Khmer Rouge regime. The other half died from starvation, overwork, and inadequate medical care.74 But these purges also proved to be a crucial component of the Khmer Rouge’s undoing. Former Khmer Rouge members who fled the risk of being purged formed the Kampuchean United Front for National Salvation and joined with the Vietnamese army to overthrow Democratic Kampuchea. Soon after taking control of Phnom Penh the Khmer Rouge launched attacks into Vietnamese territory that had been Khmer territory before the eighteenth century, particularly in the Mekong Delta. One commander ordered his troops “to liberate Vietnamese territory because it is all our territory”.75 After two years of smaller incursions, conflict broke out along the Cambodia/Vietnam border in mid-1977 and the Khmer Rouge severed diplomatic relations with Vietnam at the end of the year.76 The invasion to overthrow Democratic Kampuchea was launched on 25 December 1978. The
71 Kiernan, The Pol Pot Regime, 336. 72 Chandler, Voices from S-21, 44. 73 Short, Pol Pot, 358-63. 74 Kiernan, The Pol Pot Regime, 456-60. The Demographic Expert Report for the ECCC concluded that a figure of 1.747 to 2.2 million was most likely, with 50% of these deaths being violent deaths. Extraordinary Chambers in the Courts of Cambodia, "Demographic Expert Report: Khmer Rouge Victims in Cambodia, April 1975-January 1979, A Critical Assessment of Major Estimates," Document Number D140/1/1, 30 September 2009. 75 Quoted in Kiernan, The Pol Pot Regime, 104. 76 Ibid., 386. 56 invading forces advanced much faster than expected through the country and took control of Phnom Penh on 7 January 1979.77
Building a Narrative
The new government in Phnom Penh faced significant challenges of legitimacy in the domestic sphere and even more so on the international stage. Cambodia was renamed the People’s Republic of Kampuchea (PRK), with the People’s Revolutionary Council of Kampuchea as the governing body, and a communist party named the Kampuchean Peoples’ Revolutionary Party (KPRP) which would remain secret until 1981.78 Vietnamese advisors had prominent, but often hidden, positions in the PRK and Vietnam had a strong tutelary arrangement with the new government. The role of the Vietnamese in bringing to power and continuing to support the PRK was a major barrier to securing legitimacy. Internationally there was strong American opposition to Vietnam as a legacy of the Second Indochina War and a fear of the domino effect taking Southeast Asia, with Vietnam’s position in Cambodia seen as a threat to Thailand. The polarisation of the world during the Cold War meant that America and the Khmer Rouge shared a common enemy in the Vietnamese and were therefore allies. Domestically, Cambodia has long had a fear of being swallowed by its larger neighbours and so relief at the end of the
77 Nayan Chanda, Brother Enemy: The War After the War (New York: Collier Books, 1986), 345-47. 78 Throughout this thesis I will primarily refer to the People’s Republic of Kampuchea (PRK) when making reference to the government of Cambodia from 1979-1989. The PRK was the new name for Cambodia, and decision-making occurred in various political groupings which had similar but not identical memberships. The Kampuchean United Front for National Salvation (also known as the Salvation Front, or just the Front) was announced in early December 1978 just inside Cambodian territory from Vietnam and its stated purpose was to overthrow the Pol Pot government. It was renamed in 1981 as the Kampuchea United Front for National Construction and Defence, and again in 2006 as the Solidarity Front for Development of the Cambodian Motherland. The exact functions of this Front as distinct from the Party are unclear. Evan Gottesman describes that during the PRK “all components of Cambodian society would be mobilized and organized under the Front and controlled by the Communist Party” and that the Front was “responsible for rallying the country around the new regime and against the Khmer Rouge”. Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (New Haven: Yale University Press, 2003), 69-70. As the Vietnamese and Khmer forces were taking control of Cambodia the Front held a congress of the Kampuchean People’s Revolutionary Party (although it was to remain secret until 1981). The party appears to have been hastily formed as the Khmer Rouge regime was overthrown faster than expected. Once they had taken control of Phnom Penh, on 8 January 1979 the Front radio service announced the formation of a People’s Revolutionary Council of Kampuchea which was to be the governing body of the country. The council was replaced by a Council of Ministers in 1981. Each of those bodies (the front, the party, and the council) were composed of a mixture of Khmer Rouge members who had defected without previous ties to Vietnam, Vietnamese-trained communists, and those without any communist experience, but the exact composition was different for each. Where it is a useful distinction I will refer specifically to one of these bodies but I primarily use PRK to refer to those governing bodies in Phnom Penh making decisions about Cambodia from 1979 to 1989. Chanda, Brother Enemy, 346; Michael Vickery, Cambodia 1975-1982 (Chiang Mai: Silkworm Books, 1984), 217. 57
Khmer Rouge regime was tinged with concerns of Vietnamese hegemony.79 The way the PRK portrayed itself, and the Khmer Rouge, would be crucial.
Domestically, the quest for legitimacy could be partially pursued through policy decisions. The PRK had taken control from a regime that had demanded above all manual labour and loyalty to Angkar. There had been no currency, freedom of religion, or freedom of movement; rights to private property and education had been severely limited. The new government recognised that it had to restore some freedoms and a sense of normality in order to secure popular support, whilst still implementing its own brand of communism.80
To distinguish the origins of the PRK’s new policies from those of the previous four years, the Khmer Rouge movement was portrayed as “a magnificent revolution subverted by a small group of evil doers”.81 The victory of 17 April 1975 was still a moment of revolutionary triumph but the Khmer Rouge leaders almost immediately erred by implementing a Maoist doctrine, rather than following the Marxist-Leninist prescriptions.82 The narrative was that the Khmer Rouge leaders had then deceived the lower ranking cadres. This narrative absolved the members of the Khmer Rouge who had defected and who had now returned to liberate the country.83 The focus on the distinction between Khmer Rouge leaders and all other Khmer Rouge members was important both as self-justification and to reassure and win the support of the local population by clearly separating the PRK from the previous regime. In some cases even greater emphasis was placed on othering the Khmer Rouge. General Secretary of the KRPP, Pen Sovan, referred to the Khmer Rouge as a “draconian, dictatorial and fascist regime” and a Vietnamese official called the Khmer Rouge leaders “Hitlerite-fascists”. 84
In international arenas, references to communism were removed from the narrative. The crimes of the Khmer Rouge regime were the greatest tool that the PRK had to justify its legitimacy to the rest of the world. Whereas domestically there was emphasis on Cambodia’s solidarity with its Vietnamese and Soviet brothers and sisters, internationally the focus was on the PRK as a Cambodian-led movement, only somewhat aided by the
79 Gottesman, Cambodia After the Khmer Rouge, 41-57. 80 Ibid., 69-70. 81 Alexander Hinton, "Truth, Representation and the Politics of Memory after Genocide," in People of Virtue: Reconfiguring Religion, Power and Morality in Cambodia Today, ed. Alexandra Kent and David Chandler (Copenhagen: NIAS Press, 2008), 68. 82 Ibid. 83 Gottesman, Cambodia After the Khmer Rouge, 60-61. 84 Phnom Penh Domestic Service, Kandal Official, SRV Representative Comment on Aid, FBIS- APA-79-175, 1 September 1979; Phnom Penh Domestic Service, Pen Sovan Addresses Political Course in Phnom Penh 5 March, FBIS-APA-79-049, 6 March 1979. 58
Vietnamese. Both the Vietnamese and the new Cambodian authorities were keen to limit the impression of a foreign invasion, instead portraying the regime change as the result of home-grown resistance.
The international narratives first played out at a debate at the UN in January 1979 over who should represent Cambodia at the world body. These discussions also showed immediately the effect that recent treaties would have on the way the world aligned on the issue of Cambodia. The Soviet Union and Vietnam had signed a treaty of friendship and cooperation in November 1978 and so both advocated recognition of the new government in Phnom Penh, led by Heng Samrin.85 At an 11 January 1979 meeting of the Security Council, the Soviet representative criticized “the anti-people clique of Pol Pot” for “unprecedented arbitrary terror and barbarous repression” and for pursuing “a policy of cruel repression within the country and an adventuristic foreign policy”.86 This Soviet representative also focussed on the Khmerness of the overthrowing force and the new government, including statements that there “is nothing surprising in the fact that the national patriotic forces of Kampuchea should have waged a decisive battle against that criminal clique” and that the Pol Pot regime “has already been overthrown by the people of Kampuchea, and therefore has no right whatsoever to take part in the discussion and even less to speak on behalf of Kampuchea in the Council”.87 Similarly the Vietnamese representative said, “For the people of Kampuchea these past four years under the hellish Pol Pot-Ieng Sary regime have also been four long years of continued and resolute struggle—indeed heroic and even sublime struggle—against that detested and abhorred regime”.88 His focus as part of this broader narrative was to highlight the brutality of the Khmer Rouge and to portray the Cambodian resistance as the agents of change.
Direct voices from the PRK were not heard at this time. The Security Council voted to refuse to hear from PRK Foreign Minister Hun Sen, with only Czechoslovakia and the Soviet Union voting in favour of hearing from him. However, the Security Council did hear from Prince Sihanouk as a representative of Democratic Kampuchea, and the representatives from Vietnam and Cuba were admitted to the debate despite not holding Security Council membership. In this situation the voice of the Vietnamese representatives would have been the closest to that of the PRK, particularly given Vietnam’s significant influence over the PRK government.
85 Chanda, Brother Enemy, 320-22. 86 United Nations Security Council, "Official Record of 2108th Meeting," S/PV.2108, 11 January 1979, 2, 18. 87 Ibid., 4. 88 Ibid., 13. 59
During the Khmer Rouge period, China had been one of Cambodia’s few external allies, providing financial and military aid and fifteen thousand technical advisors as well as being a market for Cambodian exports.89 This support that the Khmer Rouge had enjoyed from China during its regime continued at the UN and was a means of securing American support. Relations between China and the United States had been normalised in 1978 and the Cambodia issue was one of the first tests of this new relationship. As well as being driven by Cold War geopolitical concerns, supporters of the Khmer Rouge’s claim to Cambodia’s seat at the UN wanted to avoid the precedent of supporting an intervention across national borders. Accordingly, their comments focussed primarily on the Vietnamese violation of Cambodian sovereignty. In a statement issued by the Chinese government on 7 January 1979 and circulated at the UN, they characterised the overthrow of the Khmer Rouge as a “massive war of aggression” during which the “Vietnamese aggressors have committed towering crimes” as part of an “expansionist strategic plan”.90 Norodom Sihanouk had spent most of the Khmer Rouge regime under house arrest but was flown to New York to support the movement’s claim to Cambodia’s seat.91 He asserted that the Vietnamese action was “a war of aggression, annexation, colonization, and regional hegemonism unilaterally, arbitrarily and unjustly unleased by the Socialist Republic of Viet Nam against little Kampuchea”, and characterised Heng Samrin as the “pitiful puppet of the Vietnamese”. 92
In this initial debate in January 1979 the Khmer Rouge held the Cambodian seat but a Chinese motion calling for the withdrawal of all foreign troops was vetoed by the Soviet Union. The Khmer Rouge were supported in a variety of ways after their overthrow. In 1979 the United States government lobbied various charities as well as the World Bank and the International Monetary Fund to prevent aid going to Cambodia or Vietnam.93 It also insisted that Khmer Rouge troops be fed as part of the relief operation along the Thai-Cambodia border, where the Khmer Rouge movement was regrouping and fighting the PRK’s army in the western regions of Cambodia.94
89 Kiernan, The Pol Pot Regime, 128-31, 376-84. 90 United Nations Security Council, "Letter Dated 7 January 1979 from the Permanent Representative of China to the United Nations Addressed to the President of the Security Council," S/13007, 7 January 1979, 2. 91 Milton Osborne, Sihanouk: Prince of Light, Prince of Darkness (St. Leonords, N.S.W.: Allen & Unwin, 1994), 244-45. 92 United Nations Security Council, "Official Record of 2108th Meeting," 10. 93 Gottesman, Cambodia After the Khmer Rouge, 44. 94 Lisa Mason and Roger Brown, Rice, Rivalry, and Politics: Managing Cambodian Relief (Notre Dame: University of Notre Dame Press, 1983), 136. 60
Although the United States provided support to the Khmer Rouge it could not be seen to be doing so in direct ways. Zbigniew Brzezinski, the United States National Security Advisor in 1979, explained American policy: “I encouraged the Chinese to support Pol Pot. I encouraged the Thai to help the D.K. [Democratic Kampuchea]... Pol Pot was an abomination. We could never support him but China could”.95 Direct support from China was extensive. From 1979 to 1989, the Khmer Rouge received approximately US$100 million annually in assistance from China.96 The decision that Cambodia would continue to be represented by the Khmer Rouge was initially only a temporary one, and it would be considered again by the credentials committee in September 1979. However, this other support given to the Khmer Rouge by major world powers demonstrated that if the Phnom Penh government had any hope of recognition more would need to be done to expose the crimes of the Khmer Rouge.97
Tuol Sleng Museum of Genocidal Crimes
The day after the Khmer Rouge were expelled from Phnom Penh two Vietnamese photojournalists followed the stench of death to the grounds of a former school compound. There they found the remnants of a Khmer Rouge torture and interrogation centre known during Democratic Kampuchea by the codename S-21. The bodies of fourteen people who had recently had their throats cut were found in the compound.98 More than fourteen thousand people passed through S-21 and fewer than a dozen are reported to have survived.99 For the rest, days, weeks or months of torture ended at a mass grave. In the first months of the PRK, this site became the Tuol Sleng Museum of Genocidal Crimes, taking on the name for the area and the school before 1975. In Khmer Tuol Sleng means hill of the poisonous tree (Strychnos nux-vomica).
The first journalists from friendly socialist countries visited in late January 1979. Visitors were shown rooms with blood stains and torture instruments, photographs of the corpses found that first day, and thousands of photographs taken of prisoners on arrival. Mai Lam, the Vietnamese museum curator responsible for the Museum of American War
95 Quoted in Elizabeth Becker, When the War Was Over: Cambodia and the Khmer Rouge Revolution (New York: Public Affairs, 1998), 435. 96 Kelly Whitley, "History of the Khmer Rouge Tribunal: Origins, Negotiations, and Establishment," in The Khmer Rouge Tribunal, ed. John D. Ciorciari (Phnom Penh: Documentation Center of Cambodia, 2006), 33. 97 Gottesman, Cambodia After the Khmer Rouge, 61. 98 Chandler, Voices from S-21, 2-3. 99 There is a period of months in 1978 for which the records are incomplete, so the exact number of victims of S-21 is higher but uncertain. Ibid., 6. 61
Crimes in Ho Chi Minh City, was brought in to create a museum at this site.100 Most immediately he had to begin to sort through an immense trove of documents. Interrogations and confessions had been meticulously recorded at S-21 and much of this documentation remained in January 1979. The new government hoped to find documents that proved a direct link between the crimes committed at S-21 and Pol Pot or Ieng Sary, for use in an upcoming trial which I discuss in the next section.101 Although no such documents were found, a visit to the emerging museum formed part of the scheduled activities of the trial.102
The initial audience for the museum was foreign visitors. No Cambodian visitors were allowed whilst the museum was being created. A document from the PRK Ministry of Culture, Information, and Propaganda explained that the purpose of the museum was “to show the international guests the cruel torture committed by the traitors to the Khmer people”.103 It was part of trying to publicise the crimes of the Khmer Rouge, and as Judy Ledgerwood put it, proving “that the invasion by the Vietnamese army was indeed a liberation”.104 Tuol Sleng was first opened to Cambodian visitors in July 1980. In the first week there were thirty-two thousand Cambodians visitors, and within the first four months nearly ten times that number visited the museum.105 Many of these first visitors came seeking information about the fates of their loved ones, scanning photographs and sometimes the documents themselves for familiar faces or names.
As with many aspects of the PRK, the Vietnamese role in designing the museum was largely kept hidden, so that it would be seen as a Cambodian product. Ung Pech, a survivor of S-21, was the museum’s director when it opened to Cambodian visitors. The elements of the narrative of the Khmer Rouge told by the museum are common across this chapter. The Khmer Rouge crimes were pinned to fascism rather than to socialism. The nature of the institution made comparisons with Nazi concentration camps easy to make; Mai Lam said that he visited Germany, Russia, France and Czechoslovakia to research their museums and East German specialists helped with the museum’s design.106
100 Tom Fawthrop and Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal (Sydney: University of New South Wales Press, 2005), 9. 101 Chandler, Voices from S-21, 5. 102 "Working Schedule for the People's Revolutionary Tribunal During Its Present Session," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennslyvania Press, 2000), 69. 103 Quoted in Judy Ledgerwood, "The Cambodian Tuol Sleng Museum of Genocidal Crimes: National Narrative," Museum Anthropology 21, no. 1 (1997): 88. 104 Ibid., 87. 105 Ibid., 88. 106 Ibid., 89. 62
For the domestic audience, Ledgerwood has identified three key themes of the museum and the materials constructed around it. First was that the crimes of the Khmer Rouge period, or the Pol Pot-Ieng Sary-Khieu Samphan clique as it was styled at the time, must be remembered. Second was that this remembering was necessary to ensure the Khmer Rouge regime did not return to power, and broadly to avert a return to similar violence. And third was that there was, and should be, a strong and ongoing grasp of the pain and suffering of that period, so that anger could be used to inspire the fight against the Khmer Rouge.107 Although the shaping of the Tuol Sleng museum began soon into the PRK period, by the time it was open to Cambodian visitors other institutions had begun to tell the government’s preferred story of the Khmer Rouge.
People’s Revolutionary Tribunal
In July 1979 the People’s Revolutionary Council of Kampuchea passed Decree Law No. 1 on the “Establishment of People’s Revolutionary Tribunal at Phnom Penh to Try the Pol Pot-Ieng Sary Clique for the Crimes of Genocide”.108 Pol Pot and Khmer Rouge Foreign Minister Ieng Sary were the only defendants in this trial. Although named as individuals they were in many ways supposed to be the personification of the Khmer Rouge regime. The presiding judge at the People’s Revolutionary Tribunal (PRT) was Keo Chanda, a Vietnamese-trained revolutionary who had been in Hanoi since 1954; he was the Minister of Information, Press, and Culture.109 In a press conference he stated the dual goals of the PRT:
Trying the Pol Pot-Ieng Sary clique for the crimes of genocide will on the one hand expose all the criminal acts that they have committed and mobilize the Kampuchean people more actively to defend and build up the people’s power, and on the other hand show the peoples of the whole world the true face of the criminals who are posing as the representatives of the people of Kampuchea.110 The PRT was the institutionalisation of a policy that had been proclaimed by the Kampuchean United Front for National Salvation in December 1978 in Kratie province near the border with Vietnam that “all reactionary ringleaders, who stubbornly oppose
107 Ibid., 91. 108 "Decree Law No. 1: Establishment of People's Revolutionary Tribunal at Phnom Penh to Try the Pol Pot-Ieng Sary Clique for the Crime of Genocide," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 45. 109 Kiernan, The Pol Pot Regime, 150; Gottesman, Cambodia After the Khmer Rouge, xxiii. 110 "Press Conference of Keo Chanda, Minister of Information, Press, and Culture, Chair of Legal Affairs Committee, July 28, 1979," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 49. 63 the people and owe a heavy blood debt to them, should be sternly punished”.111 However, this policy also called for leniency for those who “are sincerely repentant”.112 Part of the reason that only Pol Pot and Ieng Sary were chosen to be defendants at this trial was that other senior leaders, such as Brother Number Two Nuon Chea and Defence Minister Son Sen, had previously had friendly relations with the Vietnamese and hence were seen as more likely to defect to the PRK.113 The narrow portrayal of culpability was part of the PRK’s broader narrative of the Khmer Rouge regime, which David Chandler has characterised as being that of “a handful of absent, demonic perpetrators and millions of innocent victims”.114 The People’s Revolutionary Tribunal was one of the first ways the new authorities gave formality and institutional weight to this preferred narrative.
The two defendants, Pol Pot and Ieng Sary, were accused of committing genocide. However, the Decree Law used a much broader definition of this crime than the standard set in 1948 by the Convention on the Prevention and Punishment of the Crime of Genocide. This enlarged definition more closely resembled events in Cambodia and included evacuating urban areas, forced labour, and “destroying political, cultural and social structures and family and social relations”.115 The trial took place from 15 to 19 August 1979 in Chaktomuk Theatre in Phnom Penh, trying both defendants in absentia. Foreign lawyers from Algeria, Cuba, India, Japan, Laos, Syria, USSR, USA, and Vietnam attended proceedings as observers or participants.116
Although a large volume of evidence was presented, very little of it related to the direct guilt of the two defendants.117 Approximately seventy people gave witness statements during the investigation, some as narrative testimonies and others in a question and answer format, which described general conditions and specific events that took place during the regime. These statements make up the most voluminous section of the
111 "Decree Law No. 1," 45. 112 Ibid. 113 Steve Heder, "Hun Sen and Genocide Trials in Cambodia: International Impacts, Impunity, and Justice," in Cambodia Emerges from the Past: Eight Essays, ed. Judy Ledgerwood (DeKalb, Illinois: Southeast Asia Publications, Center for Southeast Asian Studies, Northern Illinois University, 2002), 187. 114 David Chandler, "Will There Be a Trial for the Khmer Rouge?," Ethics and International Affairs 14, no. 1 (2000): 73. 115 "Decree Law No. 1," 45. 116 "List of Foreign Lawyers," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 62-63. 117 Some of the documents generated by the PRT were later entered into evidence by the Office of the Co-Prosecutors at the ECCC. Tara Gutman, "Cambodia, 1979: Trying Khmer Rouge Leaders for Genocide," in Trials for International Crimes in Asia, ed. Kirsten Sellars (Cambridge: Cambridge University Press, 2016), 174. 64 investigation documents. There were also reports about investigations into mass grave sites, reports on thematic issues (such as social welfare, education, health, actions taken against Cham Muslims, and crimes against religions), and foreign news articles on the Khmer Rouge period. This evidence did not relate to Pol Pot and Ieng Sary as individuals but as representatives of the regime, with reference being to “Pol Pot officials”, “the clique of the traitors Pol Pot and Ieng Sary”, “Pol Pot soldiers”, “Pol Pot and Ieng Sary and their gang of traitors”, “Pol Pot agents”, and “Pol Pot-Ieng Sary henchmen”.118
Excerpts from thirty captured documents of the Khmer Rouge regime were also included, some from national level bodies such as the Central Committee of the Communist Party of Kampuchea and others written by local officials about conditions in specific districts. These documents provided some evidence of central control but not to the level expected in Western jurisdictions at the time or in subsequent international criminal trials. Some of the top leaders of the PRK could have provided additional evidence on this front but further reminding the population that its current leaders were recently Khmer Rouge officials was not part of the political strategy of the trial. In his closing statement, the prosecutor also mixed the actions of the individual defendants with the regime as a whole, saying that the evidence “demonstrate[d] clearly and irrefutably that the genocidal Pol Pot-Ieng Sary clique committed the following criminal acts as charged in the indictment”.119 The prosecutor’s main reference to Pol Pot and Ieng Sary’s individual responsibilities was the positions they held in the government: Pol Pot “chaired the meetings… at which decisions were taken on domestic and foreign policy, in particular, on the policy and plans of genocide against the Kampuchean people” and Ieng Sary “in his capacity as a member of the standing committee of the central committee… ordered the carrying out of the crime of genocide inside the country… [and] actively
118 "Witness Statement of Mr. Ung Pech," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 79, 83; "Witness Statement of Mr. Tik How," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 91; "Witness Statement of Mr. Em Darakun," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 130; "Report by Kampuchean Clergy on the Situation in Kampuchea After April 17, 1975 (Reviewed by the Committee of Phnom Penh Monks)," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 145; "Witness Statement of Mr. Yeng Mara," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 182. 119 "Closing Argument of Mat Ly, Prosecutor of the Tribunal," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 490. 65 defended before international institutions the criminal acts committed by his clique against the Kampuchean people”.120 Although rhetorical attention was given to the personal roles of the defendants, as two of the most senior leaders of the Khmer Rouge they were taken to be responsible for, and synonymous with, all the evils inflicted during that period.
The PRT received little international attention at the time or afterwards, partly because it focussed far more on the performative aspects of a trial than on procedural justice. There was no presumption of innocence. The presiding judge stated before the trial began: “The Pol Pot-Ieng Sary clique has committed the crime of genocide against our whole people”.121 The defence lawyers made no attempt to exonerate their clients, with American defence counsel Hope Stevens of the National Conference of Black Lawyers of the United States and Canada characterising his clients as “criminally insane monsters” and stating “I have not come from halfway around the world to give approval to monstrous crimes or to ask for mercy for the criminals. No! A thousand times no! Not at all!”122 The defence counsel had a specific role to play in the script of the trial, which was to point to the culpability of China and to lay the blame for the Khmer Rouge’s ideology upon the Chinese communists. Pol Pot and Ieng Sary were “carrying out a program the script of which was written elsewhere for them” and “hegemonist expansionists of Peking” were the “unacknowledged forces that incited, encouraged, pressured, and protected” the Khmer Rouge.123 On 19 August 1979 after five days of trial the President of the Tribunal and the ten People’s Assessors found Pol Pot and Ieng Sary guilty of committing genocide and sentenced them to death. The judgement was later sent to the UN Secretary-General by the Vietnamese delegation to the UN with a request that the document be circulated to the General Assembly as an official document.124
The purposes of the PRT appear to have been multidimensional and unfocussed and there is minimal evidence the tribunal had direct effects. The decision to invite foreign lawyers and observers suggests an international aim. The international lawyers who
120 Ibid., 503. 121 "Press Conference of Keo Chanda," 49. 122 "Closing Argument of Hope R. Stevens," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 504, 507. 123 Ibid., 507; "Closing Argument of Attorney Yous Por for Pol Pot and Ieng Sary, Accused of Crimes of Genocide," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennslyvania Press, 2000), 509. 124 United Nations General Assembly, "Letter Dated 17 September 1979 from the Permanent Representative of Viet Nam to the United Nations Addressed to the Secretary-General " A/34/491, 20 September 1979. 66 participated in the proceedings often focussed on the international dimensions of the Khmer Rouge regime and of the PRT. In addition to the statements on China quoted above, a Syrian lawyer who participated in proceedings on behalf of victims said the “political responsibility of the Peking leaders in the crimes of the Pol Pot-Ieng Sary genocidal clique is terrible and obvious”.125 Beyond the Chinese, the defence lawyer said Pol Pot and Ieng Sary should
have besides them as fellow-accused the manipulators of world imperialism, the profiteers of neo-colonialism, the fascist philosophers, the hegemonists, who are supporting Zionism, racism, apartheid and reactionary regimes in the world, all these would be standing there with the false socialist leaders of fascist China awaiting the verdict and sharing the sentence of your decision.126 The desired international audience for the PRT is also evident in the language used around the tribunal’s procedures. The statements of the Cambodian and foreign lawyers after three days of witness testimony focussed on the ways in which the trial had adhered to procedural justice standards and considerations of the rule of law, in some cases with explicit acknowledgement that this adherence was necessary for international recognition of the process. Defence lawyer Hope Stevens said he was there “to seek to ensure that those accused of the unspeakable crimes that have been alleged against them receive a fair trial”.127 Japanese lawyer, Susumi Ozaki, who gave a statement at the conclusion of the trial, expressed his respect for “efforts made to set up this tribunal and proceed with strict and correct procedure, despite extremely difficult conditions”.128 In the beginning of his closing statement the Cambodian prosecutor asserted that “the tribunal has conducted the trial fairly and impartially… observing normal judicial procedures to guarantee justice”.129
Statements at the PRT explicitly acknowledged the international audience: American lawyers indicated that it was designed to “demonstrate to the world the sufferings of the Kampuchean people” and that this trial would “be analyzed and discussed all over the
125 "Closing Argument of Mohammed Hikmet Turkmanee, Counsel for the Plaintiffs in the Concurrent Civil Action," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennslyvania Press, 2000), 516. 126 "Closing Argument of Hope R. Stevens," 507. 127 Ibid., 506. 128 "Statement of Susumi Ozaki, Lawyer," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennslyvania Press, 2000), 520. 129 "Closing Argument of Mat Ly," 490. 67 world”.130 International lawyers also specifically linked these statements to the continued diplomatic recognition of the Khmer Rouge, saying that “one of the consequences of the commission of genocide must be that a regime perpetrating genocide loses its right to govern” and that “the Kampuchean people has a sole and legitimate government, i.e., the People's Revolutionary Council of Kampuchea”.131 The request to circulate the judgement at the UN also indicates the importance of this international element. Nonetheless, despite these assertions and actions taken with an explicit international audience, the PRT received very little international attention, in the news or politics of the time, or in scholarship since then.
Despite claims to good procedural justice there were several ways in which the PRT failed to live up to these assertions. This discrepancy between rhetoric and outcomes raises the question of whether the trial was ever intended to make a difference internationally. There were already steep hurdles to overcome in generating any change in position from entrenched Cold War stances, but the model and conduct of the PRT were not well designed to achieve this goal. In part these limitations may have been a simple question of resources. Even simple physical resources such as typewriters were scarce, and there were few Cambodians left with any legal training, let alone Western training or experience, who might have been able to craft proceedings that would better satisfy a Western audience.
The structure and conduct of the PRT was also influenced, and in many ways hindered, by foreign models. Evan Gottesman details that, as with almost all actions taken by the new authorities in Phnom Penh, the Vietnamese government had a controlling hand in establishing the PRT. A document from May 1979 states that “the Central Committee of the Vietnamese Communist Party has decided to create an Executive Team for a Cambodian court in order to help Cambodia convene a trial to sentence the Pol Pot-Ieng Sary clique”.132 The Vietnamese influence was also evident in a charge that was initially included in the indictment of “creating war by invading Vietnam”, which was later removed presumably to avoid drawing any avoidable attention to the Vietnamese presence.133
130 "Statement of John Quigley (Professor of Law, Ohio State University, USA)," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennslyvania Press, 2000), 519; "Closing Argument of Hope R. Stevens," 506. 131 "Statement of John Quigley," 519; "Statement of Susumi Ozaki, Lawyer," 521. 132 Quoted in Gottesman, Cambodia After the Khmer Rouge, 62. 133 Ibid. 68
Steve Heder has argued that the PRT was the application of “the perversion of the Nuremberg trials that the Vietnamese had formulated in their propaganda war against the United States”.134 He noted the similarity of rhetoric between the PRT and the Vietnamese Communists’ policies from the 1960s on trials of enemies, a policy of leniency except against those who remained obstinate which the Vietnamese had enacted in 1976, and the same system of people’s courts under political supervision.135 Heder also argues that the PRT, and later the ECCC, drew from the legacy of colonial French military courts which, along with Vietnamese Communist style justice, “served not fairness and truth but immediate power needs such as neutralizing political opposition” and the legacy of the American involvement in the Second Indochina War “which taught that impunity was a de facto international norm” and therefore other political concerns could govern how trials were pursued.136 The PRT is far from unique as a trial used for political purposes, but the international goals it was pursuing were not well served by the chosen model or the precedents it was built on.
The international recognition and support being given to the Khmer Rouge was one reason for the tribunal; it could demonstrate the crimes of that regime in the hope of deterring countries with strong rhetoric around human rights from continuing to support the Khmer Rouge. In a more direct sense the PRT was also necessary to challenge the narrative that Khmer Rouge leaders were building. Ieng Sary, as the most prominent public face of the Khmer Rouge at this time, was claiming that only “several thousand” people had been killed during the Khmer Rouge regime.137 The PRK, on the other hand, had begun to use a figure of three million deaths. Although the PRT did not explicitly study the number of deaths under the Khmer Rouge regime, the figure of three million recurred frequently. The reports of investigations into mass graves seem specifically designed to counter claims that several thousand had been killed rather than hundreds of thousands or millions.
In the domestic sphere, the PRT received limited attention or interest, although authorities disseminated information about the trial in at least some provinces.138 The PRT was one amongst many strategies to reassure the population, to distinguish the new authorities from the Khmer Rouge, and to consolidate legitimacy. Suspicion, famine, and
134 Heder, "Hun Sen and Genocide Trials," 186. 135 Ibid., 184-89. 136 Ibid., 184, 220. 137 Gottesman, Cambodia After the Khmer Rouge, 61. 138 Chea Vannath, interview by author, 29 January 2014, Phnom Penh; Wendy Lambourne, "Justice and Reconciliation: Post-Conflict Peacebuilding in Cambodia and Rwanda" (PhD Thesis, University of Sydney, 2002), 302. 69 mass displacement continued in the period after the Khmer Rouge were overthrown and many Cambodians chose to use their newly regained freedom of movement to flee to the Thai border. Although a trial could not have been expected to counter all of these post- conflict challenges, a legal response was important and its absence would have been notable. The PRT does not appear to have entered the collective national memory of the Khmer Rouge period, it is rarely referred to and seems to be largely forgotten, but the figure of three million deaths and the personification of blame on Pol Pot have done so.
Nonetheless, the government decades later tried to tie the PRT to the newly emerging ECCC. The government suggested that the same location be used for the ECCC as had been used for the 1979 tribunal and sought to have the PRT’s verdict acknowledged by the UN or the ECCC. There are commonalities across the two tribunals. Both have convicted only a small number of individuals: two at the PRT and three (so far and likely ever) at the ECCC. It continues to be true more than thirty years later that leaders of the government could provide valuable inculpatory evidence against high ranking Khmer Rouge leaders but refuse to do so because of political concerns. The witness statements given at the PRT also resemble the statements made by victims before the ECCC; although each mechanism had limitations they provided some space for victim testimony and official acknowledgement of that testimony. However, there are also vast differences between the two mechanisms, including obvious aspects of duration and scale, the level of international participation, and the extent of the focus on individual culpability. A key difference that I will return to throughout this thesis is that the ECCC has been afforded the kind of international attention and legitimacy that the government was seeking with the PRT but failed to achieve.
In September 1979, the day after the judgement of the PRT was circulated at the UN, another vote was held in the UN General Assembly to consider the credentials of the Khmer Rouge to represent Cambodia. In the UN General Assembly debates two countries made reference to this judgement: Belarus and the German Democratic Republic representative who said that it revealed “the scope of the devastating war waged against the Kampuchean people”.139 Seventy-one countries, including the US, China, and their allies voted to accept the Khmer Rouge’s credentials, thirty-five states voted against, with thirty-four abstentions.140 Aside from these two passing references,
139 United Nations General Assembly, "Credentials of Representatives to the Thirty-Fourth Session of the General Assembly," A/34/500, 20 September 1979, 35. 140 Ibid., 57. 70 there is no reason to think the PRT played a role in swaying international approaches to Cambodia or the Khmer Rouge.
During the early 1980s very little of the international political situation changed in regards to Cambodia, although domestic rebuilding efforts were ongoing. The political reality of the international support for the Khmer Rouge remained unchanged but it was increasingly difficult for Western liberal governments to justify. Therefore, the leaders of the two largest non-communist resistance groups, Norodom Sihanouk and Son Sann, were pressured by the U.S. and China into forming an alliance with the Khmer Rouge.141 The Coalition Government of Democratic Kampuchea (CGDK) was formed in June 1982 and although the non-communists were the face of this new alliance, Khmer Rouge forces operating out of refugee camps on the Thai border were the dominant military component.142 The creation of this new front allowed foreign governments to claim they were supporting, economically and diplomatically, only the non-communist forces of the coalition even though the Khmer Rouge continued to benefit from their support in practice. The CGDK held Cambodia’s seat at the UN from 1982 to 1990 but little had changed; it was the Khmer Rouge’s representative, Thiounn Prasith, who continued to represent Cambodia.143 The CGDK was little more than a front that allowed foreign governments to continue to support the Khmer Rouge.
The Renakse Petitions
In these circumstances, the PRK continued to be faced with the challenge of how best to respond to both the legacy of the Khmer Rouge’s regime as well as their continued presence, diplomatically in the international political sphere and militarily along the Thai border. In 1982, the same year the CGDK was formed, the PRK created a historical research committee. It was tasked with conducting a nationwide survey into the crimes of the Khmer Rouge and estimating the number of people killed during the Democratic Kampuchea period. More than a million people participated by reporting deaths in their families and villages.144 The committee also examined evidence from mass graves, counting exhumed bodies, and arrived at a figure of 3,314,768 deaths during the Khmer
141 Osborne, Sihanouk, 251. 142 Becker, When the War was Over, 457. 143 Thiounn Prasith continued to live in the United States after his role representing Cambodia at the United Nations was over. Adam Fifield, "The Apologist in Suburbia," Village Voice, 5 May 1998; Barbara Crossette, "Ex-Official's Life in U.S. Evokes Fear," New York Times, 14 August 1995. 144 Margaret Slocomb, The People's Republic of Kampuchea, 1979-1989: The Revolution After Pol Pot (Chiang Mai: Silkworm Books, 2003), 187. 71
Rouge regime.145 This report was then endorsed by the National Assembly and discussed at a conference of monks and intellectuals.146
In the second part of the process this report, and open letters written at the conference, were discussed in forums throughout the country. At the conclusion of these meetings, attendees were asked to write their own accounts of the Democratic Kampuchea regime. These reports contained a mixture of uniform statements and individual details. They are known as the Renakse petitions, taking their name from the Khmer for “front”, because petitions were addressed to the Kampuchean United Front for National Construction and Defence, the renamed front formed by Khmer Rouge defectors in late 1978. Nine thousand of these petitions were drafted and summarised in a second report in November 1983.147
A report from the agriculture office in Kandal Province stated that its petition sought “to illuminate all the crimes which the expansionist China-Peking group and their followers committed and which the genocidal Pol Pot-Ieng Sary clique implemented on the Cambodian population from 1975 until 1978” and that thanks to the “correct and righteous leadership and the enlightenment of the Kampuchean People's Revolutionary Party and with the assistance and support from Vietnam, USSR, other friendly socialist countries, and from among other people in the world who love peace, our people have been liberated, totally and permanently”.148 Similar statements of support for the government are common across the petitions as are references to the UN and to the Khmer Rouge’s presence there. Many of the petitions also contain individual details about crimes committed in their area, descriptions of torture, the lack of food and medicine, and destruction of culture: “they cut throats with sugar palm leaves, hit on the back with a hoe, cut or burnt to death, tied people under the sun, starved them, pulled out fingernails and toenails”.149 Some petitions are individual but most represent a particular village or work unit, with pages of signatures or thumb prints appended.150
145 Ibid., 186-87; Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport: Praeger, 2005), 109. The methodology employed made overestimation likely, not accounting for multiple reports of one person’s death, and the figure is higher than any other estimate. 146 William Schulte, "The History of the Renakse Petitions and their Value for ECCC Proceedings," Searching for the Truth, Fourth Quarter 2007, 18. 147 John D. Ciorciari and Sok-Kheang Ly, "The ECCC's Role in Reconciliation," in On Trial: The Khmer Rouge Acountability Process, ed. John D. Ciorciari and Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009), 309. 148 "ញត្តិរបស់ត្ំ㮶ងបញ្ញវន្តនន្មន្ទីរកសិកមមខេត្តក㮶តល", "Petition of Representative of Agriculture Office of Kandal Province," DC-Cam ID R00612, 21 September 1983. 149 Ibid. 150 Schulte, "The History of the Renakse Petitions," 19. 72
The petitions were housed, forgotten, in a government office until the mid-1990s when the Documentation Center of Cambodia (DC-Cam) was alerted to their presence and found 1250 of the original 9000; the fate of the remaining documents is unclear.151 There are aspects of these documents and the process of gathering them which resemble current understandings of a truth commission. The research committee gathered information nationwide and compiled a report and gave people a chance to tell part of their story and to have their suffering acknowledged. Although these petitions have received passing mention in academic works on the ECCC, they have received little analysis and have never been studied explicitly as a transitional justice mechanism. The overtly political nature of these documents means that they are normally overlooked or dismissed by scholars who do become aware of their existence. The statements in support of, and gratitude towards, the PRK were clearly scripted and obligatory. Although all documents of this sort are political, the explicit political purpose they served has excluded the Renakse petitions from thorough scholarly analysis so far. As I discuss with reference to trials in this thesis, transitional justice scholarship comfortably acknowledges a political purpose in the creation of mechanisms but once the mechanism has been established all political motivations must be hidden.
Although the language of the petitions shows that the documents were designed for a political purpose, quite what that purpose was is unclear. Significant effort and resources were expended to cover a large portion of the country in a time when Cambodia was rebuilding and the Khmer Rouge were still a threat.152 The level of top-down control is evident in the uniformity of language used to both support the PRK government and to call for the UN to stop its recognition of the Khmer Rouge. Given that so many of the petitions contain an appeal to the UN it seems that part of their purpose was to be sent, either completely or in summary, to New York or Geneva. Instead, the petitions were largely forgotten domestically and completely unknown internationally.153 One possibility, suggested by Youk Chhang, director of the Documentation Center of Cambodia, is that the logistics of sending these petitions to the UN were just too difficult; how to physically transport the documents, how much it would cost, and who to send them to were questions that defied answer.154 Another possibility is a sense of
151 DC-Cam is a Cambodian NGO focussed on researching Democratic Kampuchea and archiving documents from that era. It was originally established as the Phnom Penh field office of Yale University’s Cambodian Genocide Program and became an independent organisation in 1997. 152 Youk Chhang, interview by author, 6 February 2014, Phnom Penh; Terith Chy, interview by author, 27 February 2014, Phnom Penh. 153 Etcheson, After the Killing Fields, 109. 154 Youk Chhang, interview by author, 6 February 2014, Phnom Penh. 73 fatalism, that they knew the documents would be ignored. However, neither explains why the project was completed but then abandoned.155
Domestic purposes must be at least part of the explanation for why these petitions were produced. Although the documents that were written seem designed for an international audience, the people who were writing these petitions were also part of the audience. The government communicated that it was capable of undertaking a nationwide project of this kind, that it was in control of the country, and that although it was being denied diplomatic recognition it was the legitimate body to represent Cambodia internationally.
The petitions were also another tool to strengthen and develop the narrative the government began in 1979. These petitions reinforced the Khmer Rouge past as an ongoing and present concern and reasserted the government’s role as saviour. The results of the investigations into mass graves were also used to bolster the government’s frequent rhetorical references to three million deaths. This figure has been used since 1979 and continues to be used, for example in Prime Minister Hun Sen’s introduction to an information booklet about the ECCC written in 2004 and still in use at the time of writing.156 The message that was crafted for an international audience sought to demonstrate the scale of the Khmer Rouge crimes and consequentially to show that they were illegitimate as Cambodia’s international representatives.
Performing and Educating
At the same 1983 session where they heard the report of the historical research commission, the National Assembly decided to nominate 20 May as a national Day of Anger.157 Upon instituting this day Chea Sim, the National Assembly Chairman, said local authorities should preserve evidence of the crimes “in order to remind our people and the next generations about the disastrous period full of blood and tears faced by our Kampuchean people at the doing of the Beijing Chinese expansionist-hegemonists, in collusion with the U.S. imperialists, and their most subservient Pol Pot-Ieng Sary-Khieu Samphan clique”.158 On this day each year ceremonies were held in Phnom Penh and
155 Terith Chy, interview by author, 27 February 2014, Phnom Penh. 156 Hun Sen, "Preface," in An Introduction to the Khmer Rouge Trials, 5th Edition (Public Affairs Section, Extraordinary Chambers in the Courts of Cambodia: 2012). 157 The Day of Anger is also referred to as a Day of Hatred. Most literally translated it is a day for remaining tied to anger or a day for maintaining rage. In 2001 it was changed to a Day of Remembrance by the government but is not commonly referred to as such. Phnom Penh Domestic Service, Chea Sim Closing Speech, FBIS-APA-83-163, 18 August 1983; Fawthrop and Jarvis, Getting Away with Genocide, 74. 158 Chea Sim Closing Speech. 74 major regional towns at schools, factories, and memorial sites.159 Officials made speeches, survivors gave testimonials, and offerings were made to the dead. Slogans and oaths were used during the ceremonies, such as those quoted in a 1989 document from Takeo province: “Remember to always maintain anger towards the Pol Pot genocidal clique and the Khmer reactionary groups, determined not to join with the obstinate group which caused absolute crimes” and “Strongly determined to change anger into revolutionary activity, to voluntarily sacrifice in order to protect the motherland, to protect the State of Cambodia and to protect Cambodia-Vietnam solidarity”.160
The Khmer Rouge were waging a guerrilla war throughout the 1980s and hence part of the purpose of these Days of Anger was to encourage Cambodians to continue to fight against them. Accordingly, as Rachel Hughes demonstrates, there was a sense of “suspended historicity” to these events; since the concerns these Days of Anger addressed continued to be present, they cannot be described solely as days of memorialisation.161 During the peace process of the early 1990s, and after the 1993 election, the Day of Anger was not observed in deference to the new peace and cooperation between political parties. However, ceremonies are now held each year at the Choueng Ek memorial (the “killing fields”), having been reintroduced in 1999. At that time the Cambodian government and the UN had begun negotiations for a Khmer Rouge tribunal so these ceremonies were meant to counter claims that the ruling Cambodian People’s Party and Prime Minister Hun Sen were not committed to a Khmer Rouge tribunal.162 These ceremonies reinforce a key aspect of the CPP’s political platform: that it liberated the country from the Khmer Rouge and that Cambodia must be ever vigilant.
At the 2014 ceremony, wreaths were laid by dignitaries, offerings were made to local monks, and speeches were given about the harms suffered during the regime including the specific experiences of women and Cham Muslims. The second half of the ceremony consisted of a play performed about the Khmer Rouge era. It depicted the 17 April 1975 evacuation of Phnom Penh, the hard physical labour, lack of food, and executions. These are particularly graphic performances with women wailing as their babies are snatched away, people begging for their lives, being struck on the back of the neck with rifle butts,
159 Rachel Hughes, "Memory and Sovereignty in Post-1979 Cambodia: Choeung Ek and Local Genocide Memorials," in Genocide in Cambodia and Rwanda: New Perspectives, ed. Susan E. Cook (New Brunswick: Transaction Publishers, 2006). 160 "ផែន្ζរផែនំអន្ុវត្តសដីពីζរាត្់តំងទិ玶ចងកំហឹងចំខ Ꮗបន្ប្បល័យពូជ羶សន្៍ប ុលពត្ ខអៀង羶រ ីខេៀវសំែន្", "Plan for the Introduction of the Day of Anger against the Pol Pot-Ieng Sary- Khieu Samphan Genocidal Clique," DC-Cam ID D00332, 18 May 1989, 4. 161 Hughes, "Memory and Sovereignty in Post-1979 Cambodia," 269. 162 Ibid., 270. 75 and one man miming being strung up and gutted. The arrival of the liberating forces was portrayed by young acrobats clearly distinguishable from those playing Khmer Rouge cadres. The overthrow of the Khmer Rouge was followed by a moment of mourning and acknowledgement of suffering before songs and slogans of rebuilding were performed, accompanied by CPP flags and images of the three top leaders (Hun Sen, Heng Samrin, and Chea Sim) who adorn CPP billboards throughout the country.163
Neither the message nor the format it is delivered in at these Day of Anger ceremonies are particularly subtle. The role of the government and its leaders as saviours is paramount. The scale of these ceremonies is much smaller than when they were first instituted in the 1980s but they nonetheless continue to be held. They further contribute to the government’s narrative in a more emotive and performative way than party speeches or documentary evidence can. This format also allows a wider audience to be targeted; groups of children are amongst the audience members.
The recent Khmer Rouge past also featured prominently in the curriculum of the education system that had been rebuilt since 1979. A grade three reading text, aimed at eight or nine year-olds, included the story “Murder of Niang Chhaynee’s Family by the Pol Pot-Ieng Sary-Khieu Samphan Clique”. This story included details of the “extremely savage” murder of her younger sibling, observed by Chhaynee’s mother who was then captured and beaten to death.164 The same book also included a description of torture at S-21 accompanied by an image of a severely emaciated person shackled to a wire bed frame, surrounded by a typewriter to take their confession, instruments of torture, and a pool of blood from when they were non-compliant. “The clique that betrayed their country savagely killed our intellectuals by beating with metal bars, hanging by the neck, gutting, cutting their throat, pumping out their blood, and electrocution”.165 Accounts of the horrors of the Khmer Rouge regime were accompanied by calls to have “high revolutionary vigilance” in order to avoid the enemies’ tricks, and to protect and build the motherland.166 The text also apportioned blame, stating that the Khmer Rouge followed “the reactionary China-Beijing revolutionary system” and that photographs taken of prisoners at S-21 were sent “to the Chinese clique”.167
163 Chea Sim died on 8 June 2015 and billboards are gradually being replaced with ones featuring only Heng Samrin and Hun Sen. 164 "ខសៀវខៅខរៀន្អកសរថ្នាក់ទី៣ភាគ២", "Learn to Read Book Level 3," DC-Cam ID D24329, 1984, 1-2. 165 Ibid., 22. 166 Ibid., 9. 167 Ibid., 21-22. 76
Helen Ester, an Australian journalist, visited Cambodia in 1980 and reported on a trip to an orphanage in Phnom Penh:
When we see the smaller children they are happy and friendly towards us. One child is put forward to sing to the visitors. As her words are translated we find she is singing about how her mother and father died, and how her father’s throat was cut and he died in a pool of blood. It is hard to describe my shock. It is explained that the children are better able to cope if they share the horrors with each other and even strangers.168 Including the correct narrative of the Khmer Rouge regime in the education system worked to ensure not just the narrative’s power at the time but also its longevity. Children who were too young to remember the Khmer Rouge period, or increasingly who were born after it, would also understand the violence that occurred and so be taught to be supportive of the government and its promise of peace and stability. The use of the education system, the targeting of youth, is a very effective means to spread a national story. Education systems are designed to produce particular conceptions of the ideal citizen and in Cambodia in the 1980s that meant having the correct revolutionary consciousness and being determined to fight against the Khmer Rouge.
Misled Persons Movement
As well as having a range of policies for dealing with the legacy of the Khmer Rouge regime, the PRK also had to deal with the continued military presence of the Khmer Rouge. Defections had been encouraged since late 1978 with promises of leniency for the repentant and rewards for those who convinced others to surrender.169 This policy was another part of the reason why the crimes of the regime had been blamed on only a handful of individuals; it made clear that the rest could and would be welcomed. Those who defected would undergo a period of re-education, although what re-education meant in this context and for how long was unclear; government statements in 1979 ranged from the need for five days re-education to five years.170 There was no formal legal process associated with re-education so details are hard to discern. This lack of clarity and arbitrariness were also present in criminal justice procedures more generally at the time. A report to the Council of Ministers in 1985 noted that:
Illegal arrests and imprisonment occur in all the provinces and cities, and in each province and city there are hundreds of people detained
168 Helen Ester, Vietnam, Thailand, Kampuchea: A First Hand Account (Canberra: Australian Council for Overseas Aid, 1980), 41. 169 Gottesman, Cambodia After the Khmer Rouge, 9, 61-62. 170 Etcheson, After the Killing Fields, 18-19. 77
for months or years. The arresting and detaining organizations have no intention of sending [detainees] to the organizations responsible for prosecution. Adjudications don’t occur, because there are no files and no evidence at all.171 Efforts to secure defections were increased in 1984 and 1985 with the Misled Persons Movement. The ongoing infiltration and guerrilla campaigns by Khmer Rouge soldiers meant that they were in contact with people in PRK-controlled areas. Family members and friends of people involved in the Khmer Rouge movement were encouraged to convince them to defect and the state promised favourable treatment. Military officers were particularly targeted with significant financial incentives.172 In the first nine months of 1985, 3,454 “brothers who lost the way with the enemy have woken up to the truth and come before our revolutionary state authorities”.173 Nearly two thousand of those defections were from the Khmer Rouge whilst the rest were from the non-communist resistance. Welcoming defectors continued to be the policy of the PRK but from 1989, as the possibility for peace became more likely, potential defectors often chose to wait and see how the process would play out.174 Re-education and detention policies were inconsistent and implemented locally. The more useful a defector was to the PRK authorities the better treatment they could expect to receive. Evan Gottesman summarised an April 1979 document, “Circular on Punishment for Those Who Committed Offenses Against the People During the Pol Pot-Ieng Sary Regime”, which continued to represent policy in the 1980s, saying that the real crime “was not so much the past killings as continued ‘obstinate’ resistance to the new regime, an offense that would be ‘punished severely’”.175
The largely arbitrary approach to defections occurred in the absence of a competent judiciary. The judicial system had been entirely destroyed by the Khmer Rouge, with fewer than a dozen legal professionals reported to have survived the regime.176 A training school was established by the Ministry of Justice in June 1982 but the curriculum focussed on Marxist-Leninist theory more than law.177 The foundation of the legal system, Decree Law No. 2, was issued in August 1980 and equated every crime to
171 Quoted in Gottesman, Cambodia After the Khmer Rouge, 239. 172 Ibid., 225-26. 173 Slocomb, The People's Republic of Kampuchea, 243. 174 Ibid. 175 Gottesman, Cambodia After the Khmer Rouge, 61-62. 176 Dolores Donovan, "Cambodia: Building a Legal System from Scratch," The International Lawyer 27, no. 2 (1993): 445. 177 Gottesman, Cambodia After the Khmer Rouge, 243; Kheang Un and Sokbunthoeun So, "Cambodia's Judiciary: Heading for Political Judicialization?," in The Judicialization of Politics in Asia, ed. Björn Dressel (London: Routledge, 2012), 186. 78
“betraying the revolution”.178 Until 1983 there was only a single court in Phnom Penh and its primary purpose was to conduct public trials against resistance fighters.179 The first trial other than the 1979 PRT was against members of the non-communist resistance.180 When members of the Khmer Rouge were put on trial it was for “counter-revolutionary activities” or “sabotaging the revolution”.181 None was ever tried for actions before 1979.182 Aside from the top Khmer Rouge leadership, crimes committed during the Khmer Rouge regime were treated with disregard by the PRK, particularly where defectors were concerned. Far more offensive were ongoing crimes against the revolution of the PRK.
Forging Peace
The international stalemate concerning Cambodia was unsustainable. The Vietnamese military had suffered 55,000 casualties by 1989, declining Soviet aid contributed to a domestic financial crisis, 370,000 people were in refugee camps on the Thai border by 1991, and annual patterns of conflict saw the Khmer Rouge soldiers take ground during the rainy season only for it to be reclaimed by the PRK and Vietnamese troops during dry season offensives.183 Given the strong geopolitical aspects of the conflict, the commencement of a peace process was directly tied to the end of the Cold War. From late 1987 to 1990 the peace talks moved from the individual level, through regional forums, to the international stage with the involvement of the UN Security Council. The Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, known as the Paris Agreement, was signed on 23 October 1991 by eighteen countries and the four Cambodian factions: the two non-communist opposition groups, the Khmer Rouge, and the State of Cambodia which had been formed out of the PRK in 1989.184 This agreement called for the establishment of a United Nations Transitional Authority in Cambodia (UNTAC) that would exercise power in Cambodia until an election was held and a new
178 Gottesman, Cambodia After the Khmer Rouge, 78. 179 Ibid., 244. 180 Amnesty International, "Kampuchea: Political Imprisonment and Torture," Index Number: ASA/23/05/87, June 1987, 65. 181 Ibid. 182 Heder, "Hun Sen and Genocide Trials," 192. 183 Gottesman, Cambodia After the Khmer Rouge, 143, 223, 316; Patrick Raszelenberg and Peter Schier, The Cambodia Conflict: Search for a Settlement, 1979-1991 (Hamburg: Institut für Asienkunde, 1995), 260; Judith Banister and Paige Johnson, "After the Nightmare: The Population of Cambodia," in Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations and the International Community, ed. Ben Kiernan (New Haven: Yale University Southeast Asia Studies, 1993), 114. 184 United Nations General Assembly, "Letter Dated 30 October 1991 from the Permanent Representatives of France and Indonesia to the United Nations addressed to the Secretary- General, Annex, Agreement on a Comprehensive Political Settlement of the Cambodia Conflict," A/46/608, 30 October 1991. 79 government was formed. UNTAC was charged with supervising the existing bureaucracy and taking direct control of some ministries, verifying the withdrawal of all foreign forces, monitoring the ceasefire, supervising the cantonment and demobilisation of forces, developing a human rights education program, investigating complaints of human rights abuses, and repatriating refugees. The Paris Agreement made no mention of a trial or other accountability measures against the Khmer Rouge leaders, instead welcoming them as equal partners in peace. Whereas a statement from a 1988 regional meeting on Cambodia had noted that it was important that measures be taken “to prevent the recurrence of genocidal policies and practices of the Pol Pot regime” by the time of the final agreement there remained only a vague reference to the “non-return to the policies and practices of the past”.185
UNTAC was the largest peacekeeping operation the UN had ever launched and, as a result, also the most expensive at US$2 billion. One of the most successful executions of UNTAC’s mandate was the repatriation of refugees: more than 360,000 people were assisted to resettle in Cambodia after years in border camps.186 UNTAC also had a range of unforeseen and unfortunate consequences: the influx of foreign money caused the cost of rice to increase fivefold, the number of sex workers in Cambodia quadrupled during the course of the mission, and HIV/AIDS spread significantly.187 When the Khmer Rouge announced, in June 1992, that they refused to disarm or to participate in the ceasefire the UN had no means to compel them to do so, and the other factions were subsequently reluctant to demobilise their troops. Even before the announcement they were withdrawing from the peace process, the Khmer Rouge had been attacking civilian populations, particularly in areas with a high concentration of ethnic Vietnamese, and they subsequently promised to disrupt the upcoming election.188 The Khmer Rouge’s justifications for no longer participating in the peace process were that there was a
185 "Communications Circulated to the Participants at the Request of the Indonesian Delegation - Statement by the Chairman of the Jakarta Informal Meeting, 28 July 1988," in Cambodia – The 1989 Paris Peace Conference: Background Analysis and Documents, ed. Amitav Acharya, Pierre Lizée, and Sorpong Peou (New York: Kraus International Publications, 1989), 425; United Nations General Assembly, "Agreement on a Comprehensive Political Settlement of the Cambodia Conflict," 4. 186 Grant Curtis, Cambodia Reborn? The Transition to Democracy and Development (Washington D.C.: Brookings Institution, 1998), 151. 187 Khatharya Um, "Cambodia in 1993: Year Zero Plus One," Asian Survey 34, no. 1 (1993): 77; Sandra Whitworth, "When the UN 'Succeeds': The Case of Cambodia," in Gender and Global Politics in the Asia-Pacific, ed. Bina D'Costa and Katrina Lee-Koo (New York: Palgrave Macmillan, 2009), 84-85; Peter S. Hill and Heng Thay Ly, "Women Are Silver, Women Are Diamonds: Conflicting Images of Women in the Cambodian Print Media," Reproductive Health Matters 12, no. 24 (2004): 111. 188 "Khmer Rouge Forces Attack Villages: Peace Accord Violation Leaves 13 Dead," Financial Times, 21 January 1992. 80 continued Vietnamese military presence in Cambodia (for which UNTAC found no evidence), and that UNTAC was not exercising enough control over the pre-existing administration.189
The Cambodian People’s Party (CPP) had been formed in October 1990 out of the Kampuchean People’s Revolutionary Party at which point it abandoned Marxism and announced its commitment to free markets, democracy, and human rights.190 Although there were PRK bureaucrats who were not members of the party, the state and the party had been deeply interwoven in the 1980s. As the country prepared for the 1993 election the CPP focussed on recruiting members, with government employees pressured into joining the party or risk losing their jobs.191 The CPP used its continued control of the state apparatus to organise violence against their political opponents and to secure financial benefit, including by selling government assets.192 UNTAC found it difficult to achieve any meaningful separation of the CPP from the bureaucracy, although the UN was supposed to be responsible for controlling ministries relating to foreign affairs, national defence, finance, public security and information during the mission. With the ceasefire and demobilisation aspects of the UN’s mission proving impossible to fulfil, the emphasis of the mission shifted to focus primarily on the election.193
Although the mandated “neutral political environment” had not been achieved—UNTAC identified the death or injury of ninety-six opposition party members in politically motivated attacks by the CPP from November 1992 to January 1993—the voting period itself was successful.194 There was eighty-nine percent turnout of registered voters and UNTAC Chief of Mission Yasushi Akashi declared it a “free and fair” election.195 The royalist FUNCINPEC party won the most votes, taking fifty-eight of a possible one hundred and twenty seats, with the CPP taking fifty-one seats. A power-sharing
189 Steve Heder, "The Resumption of Armed Struggle by the Party of Democratic Kampuchea: Evidence from National Army of Democratic Kampuchea 'Self Demobilizers'," in Propaganda, Politics, and Violence in Cambodia, ed. Steve Heder and Judy Ledgerwood (New York: M. E. Sharpe, 1996), 74. 190 Gottesman, Cambodia After the Khmer Rouge, 345. 191 Kate Frieson, "The Politics of Getting the Vote in Cambodia," in Propaganda, Politics, and Violence in Cambodia, ed. Steve Heder and Judy Ledgerwood (New York: M. E. Sharpe, 1996), 190. 192 David Roberts, Political Transitions in Cambodia 1991-99 (New York: St. Martin's Press, 2001), 106, 47. 193 Jeni Whalan, "Evaluating Peace Operations: The Case of Cambodia," Journal of International Peacekeeping 16, no. 3-4 (2012): 231. 194 United Nations Transitional Authority in Cambodia, "Human Rights Component Final Report," (September 1993), 28. 195 Philip Shenon, "U.N. Aide Calls Cambodia Vote 'Free and Fair'," New York Times, 26 May 1993; United Nations Security Council, "Report of the Secretary-General on the Conduct and Results of the Elections in Cambodia," S/25913, 2 June 1993. 81 agreement was reached whereby Cambodia would have two Co-Prime Ministers, First Prime Minister Norodom Ranariddh of FUNCINPEC and Second Prime Minister Hun Sen of the CPP. Under this agreement ministries were divided between the two main parties; each ministry would have a minister from one party and a deputy minister from the other.
The conclusion of UNTAC’s mission marked Cambodia’s re-entry to the international stage. The Khmer Rouge had made military and territorial gains during the UNTAC period.196 However, whilst some Thai authorities still traded with the Khmer Rouge, and provided them with sanctuary, international support for the Khmer Rouge had largely come to an end. For those parties that participated in the election process, events after the election were instructive. Although FUNCINPEC had won the election the CPP maintained their dominant position, and the UN endorsed this outcome. Enough semblance of procedure and legality had been observed to allow the new government to claim legitimacy yet existing power structures remained more important than election results.
The legacy of UNTAC continued to be important in the relationship between the CPP and the UN, and later impacted on the ECCC negotiations. Asked in 1998, Prime Minister Hun Sen could not offer any positive aspects of the UN intervention; his only comment was that "UNTAC spread AIDS in Cambodia and left behind half-blooded children".197 The Cambodian parties learnt that the UN had little power of its own. The CPP maintained its extensive control of the civil service, and Khmer Rouge violence could be greeted with little more than admonishment. The peace negotiation process, particularly the inclusion of the Khmer Rouge, demonstrated that on the international stage accountability could be discarded if it was politically inconvenient. Hun Sen later recalled that when he sought to include the word “genocide” in the Paris Agreement he “was attacked and accused as a person with no goodwill to end the war. I was injustly [sic] suppressed and forced to sign with KR leaders”.198 With the end of the UN mission, and the new international isolation of the Khmer Rouge, the government acted to bring an end to the Khmer Rouge movement.
196 Etcheson, After the Killing Fields, 45. 197 "Hun Sen Criticizes U.N. Over 1993 Polls," Kyodo News, 26 July 1998. 198 "Hun Sen Draws His Line in the Shifting Sands," Phnom Penh Post, 8 January 1999. 82
Defections
One of the most prominent tools the government used to bring about the collapse of the Khmer Rouge movement was a renewed focus on encouraging defections. In July 1994 the National Assembly passed the “Law Proscribing the ‘Democratic Kampuchea’ Group” which criminalised membership in the Khmer Rouge movement but included a six- month amnesty period. More than six thousand people took advantage of this amnesty during the initial period.199 In practice, defections were encouraged long after the six month deadline.200 There was also competition between FUNCINPEC and the CPP to secure defections since the Khmer Rouge soldiers were then absorbed into units loyal to one of the two parties.201
The law stipulated that Khmer Rouge leaders were excluded from claiming this amnesty and the King and the Co-Prime Ministers reiterated calls for trials and asserted that justice was a priority.202 These statements in favour of accountability were particularly made at international forums where they would be welcomed and expected. The U.S. Congress had made clear that discussing justice for the Khmer Rouge was important in at least some international spheres by passing the Cambodian Genocide Justice Act in April 1994.203 This act called for the State Department to gather evidence of the crimes of the Khmer Rouge and to work towards establishing an international tribunal.
However, trials were not a priority and in practice the Cambodian government’s policy favoured any measures that would weaken the Khmer Rouge movement. The first top leader to defect was Ieng Sary. He joined with two military commanders and nearly three thousand troops and defected in August 1996. Ieng Sary, and the troops he defected with, had been based in and around Pailin which was the base of lucrative trade deals made by the Khmer Rouge. As the movement’s main contact with China, Ieng Sary’s utility to the Khmer Rouge declined in the early 1990s when Chinese aid ended. He had been
199 Ros Sokhet, "KR Defections almost 7,000," Phnom Penh Post, 13 January 1995. 200 "Cambodian Defence Ministry to Request Amnesty Extension," Agence France-Presse, 18 January 1995; Jason Barber and Ker Munthit, "King Offers Olive Branch to KR," Phnom Penh Post, 27 January 1995. 201 Gottesman, Cambodia After the Khmer Rouge, 354. 202 National Assembly of the Kingdom of Cambodia, "Cambodia: Law on the Outlawing of the 'Democratic Kampuchea' Group (July 7, 1994)," in Transitional Justice: Laws, Rulings, and Reports, ed. Neil Kritz (Washington D.C.: United States Institute of Peace Press, 1995), 305; Phnom Penh National Radio of Cambodia Network, KR Censured for Choice to Continue War, FBIS-EAS-95-027, 9 February 1995; Ker Munthit, "Genocide Seminar Calls for 'Commission of Truth'," Phnom Penh Post, 25 August 1995. 203 Cambodian Genocide Justice Act, Pub. L. 103-236, 108 Stat. 382 (30 April 1994), secs. 571-573. 83 increasingly sidelined and perceived as insufficiently revolutionary. Pol Pot’s attempts to reassert his authority over the Pailin area prompted the defections.204
On August 15 Ieng Sary publicly denounced Pol Pot. Given his 1979 conviction for genocide the Co-Prime Ministers requested the King to issue a royal pardon. The royal decree provided “a pardon to Mr Ieng Sary… for the sentence of death… imposed by order of the People’s Revolutionary Tribunal of Phnom Penh dated 19 August 1979; and an amnesty for prosecution under the Law to Outlaw the Democratic Kampuchea Group… dated 14 July 1994”.205 The group of former Khmer Rouge members who defected with Ieng Sary reconstituted themselves as the Democratic National United Movement and announced their intention to contest the 1998 election.206 These actions made the possibility for a trial seem remote, particularly as the PRK had long referred to the Khmer Rouge as the Pol Pot-Ieng Sary clique.
The royal pardon and suggestions of the political legitimation of Ieng Sary and his party were poorly received. Domestic political actors complained that they had not been consulted and the King later distanced himself from the royal decree by saying he only acted as the Co-Prime Ministers requested and on the condition that two-thirds of the National Assembly approved.207 Foreign observers also took a dim view of the development, particularly in light of the government’s rhetorical commitment to trials. At the time, one anonymous diplomat predicted “Cambodia’s international isolation if the KR [Khmer Rouge] is allowed a political role in the future”, with another saying that political legitimisation of the Khmer Rouge “would harm Cambodia’s attempt to integrate with the world”.208
Hun Sen reacted angrily to this new international criticism by recalling international attitudes in the early 1980s: “when there is political demand for support of Ieng Sary, they say that Ieng Sary did not commit any crime. Then they say the other way, in different circumstances”.209 He also emphasized that the royal decree did not prohibit future prosecution of Ieng Sary for crimes against humanity and that he would support bringing Ieng Sary to justice if he was found guilty.210 Sihanouk also made clear his
204 Pierre P. Lizee, "Cambodia in 1996: Of Tigers, Crocodiles, and Doves," Asian Survey 37, no. 1 (1997): 67-68. 205 "Royal Decree," NS/RKT/0996/72, 14 September 1996, available at http://www.eccc.gov.kh/sites/default/files/legal-documents/pardon_for_ieng_sary.pdf. 206 Huw Watkin, "Diplomats Watchful, Silent on KR Prospects," Phnom Penh Post, 23 August 1996. 207 Huw Watkin, "King: PMs Jumped the Gun on Sary Amnesty," Phnom Penh Post, 20 September 1996. 208 Watkin, "Diplomats Watchful, Silent on KR Prospects." 209 "Hun Sen: Cambodia United 'At Any Price'," Phnom Penh Post, 4 October 1996. 210 Ibid. 84 support for a trial in a letter to Amnesty International shortly after pardoning Ieng Sary, and First Prime Minister Ranariddh said that “the amnesty will not protect Mr. Ieng Sary from prosecution by the international tribunal”, although no moves had been made towards such an international tribunal at the time.211
Conclusions
International responses to the Khmer Rouge had changed dramatically from recognition in the 1980s to condemnation in the 1990s. The movement had enjoyed international protection for years but the leaders now faced a credible threat of prosecution. Nations that had previously aided the Khmer Rouge movement were now criticising the Cambodian government’s lack of progress towards accountability. Despite a lack of international recognition, the PRK government instituted a variety of measures to address the legacy of the Khmer Rouge regime. The PRT convicted Pol Pot and Ieng Sary of genocide and sentenced them to death but was unable to carry out this sentence. The Renakse petitions urged the UN to end its recognition of the Khmer Rouge but these documents were never seen. Through the creation of the Tuol Sleng Museum of Genocidal Crimes, the incorporation of the Khmer Rouge as part of the education system, and the memorialisation of harms suffered through annual Days of Anger the PRK government created its preferred narrative of the Khmer Rouge regime which it would now seek to extend to the ECCC. The UNTAC mission had restored Cambodia’s place on the international stage and, circuitously, de-legitimised the Khmer Rouge. The weakening of the Khmer Rouge movement, the international recognition of the Cambodian government, and the responses against Ieng Sary’s amnesty meant that the prospects for a trial, particularly one that would be recognised internationally and would be able to detain suspects, were much stronger in 1997 than they had been at any point since the Khmer Rouge had been overthrown.
211 Watkin, "King: PMs Jumped the Gun on Sary Amnesty." 85
Chapter Three – Negotiating the Mechanism 1997- 2003
Ieng Sary’s defection and pardon in August 1996 sparked international interest in Khmer Rouge accountability. The world had changed significantly since the Khmer Rouge had been included in the Paris Agreement with impunity for the crimes of their regime. In five years, the international mood had become more critical of impunity in transitional justice settlements: it was considered less a necessary component of political transitions and more an unacceptable concession. The end of the Cold War had already created space for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); these tribunals were the first elements in a patchwork of international accountability for mass atrocity crimes. Eventually, the Extraordinary Chambers in the Courts of Cambodia (ECCC) would become part of this patchwork too. However, in 1996 it was far from clear that there would ever be accountability for the crimes of the Khmer Rouge era, let alone what form that accountability would take.
In this chapter I discuss the process that led to the creation of a Khmer Rouge tribunal generally and then to the formation of the unique design of the ECCC, as well as the many delays that were encountered. The involvement of the UN dates from a 1997 letter sent by the Cambodian Co-Prime Ministers to the UN Secretary-General. Subsequently, a UN Group of Experts recommended an international criminal tribunal similar to the ICTY and ICTR. The Cambodian government rejected this recommendation, instead envisaging a national process complemented by some international legal experts. Over the following years the UN Secretariat and the Cambodian government negotiated a model that sought to bridge the gap between these two propositions and that was a hybrid of national and international systems. The negotiations were fraught with distrust, misunderstandings, and the apportioning of blame. Delays were encountered in the form of a coup, high-profile Khmer Rouge defections, floods, constitutional violations, and a UN decision to walk away from the negotiation process. Despite the extensive obstacles, in March 2003 the two sides reached an agreement to establish the ECCC.
The dominant issue that pervaded these negotiations was the question of the relative power of the UN and the Cambodian government in controlling proceedings. The 86 process was marked more by a competition for power than by cooperation towards a common goal. The creation of any transitional justice mechanism is a political decision. Transitional justice is, as the name suggests, justice outside the normal system. The decisions made in establishing a transitional justice mechanism are based on the political goals of the new government, whether liberal democratic or not, and also take account of the power still held by old elites in society, the military, or the government. That the ECCC was created through political considerations does not, in and of itself, indicate that it was going to be an illiberal mechanism. However, there were a number of indications, which I discuss in this chapter, that the negotiations would have an illiberal outcome. The political motivations of the government were primarily concerned with protecting its own power. The delicate compromises reached regarding procedures and the composition of judges at the court suggested that manipulation was expected in advance. And the delays and conflicts that led to a six-year creation process showed that neither the UN Secretariat nor the Cambodian government were entirely willing to pay the other’s price to ensure accountability for Khmer Rouge leaders.
The 1997 Letter
In retrospect, UN involvement in the Cambodian trials process dated from the letter sent in June 1997 by the Cambodian Co-Prime Ministers, Norodom Ranariddh and Hun Sen, to the UN Secretary-General Kofi Annan requesting assistance with a trial of Khmer Rouge leaders.1 Even before this date, however, the Cambodian authorities had made appeals to international law and to the UN which foreshadowed the creation of trials. Neither the 1997 letter nor the earlier statements ensured that trials would actually take place.
Calls for a trial from the Cambodian government, whether genuine or just rhetorically useful, had occurred during the 1980s and continued to emanate from the post-1993 government. In an interview in 1984 with a Soviet news agency, Hun Sen said that “Kampuchean people say that Pol Pot’s men should not return to power and that their real place is in a tribunal, where they can be put on trial for their genocidal crimes as Hitler’s men were prosecuted at the end of the World War II” and similarly a Phnom Penh news article in 1981 said that “Kampuchea’s political and armed conflicts can be settled only after the Khmer Rouge are disarmed and the Khmer Rouge leaders are
1 Norodom Ranariddh and Hun Sen had been Co-Prime Ministers of Cambodia since 1993. A political deal had been reached between them since although Ranariddh’s party FUNCINPEC had won the national election, Hun Sen’s CPP refused to accept the result and controlled most of the state institutions. 87 brought to trial before an international tribunal, just as the German Nazis were sentenced at Nuremberg”.2 During the UNTAC period, Hun Sen told a press conference “the UN conventions on genocide cannot be overridden by the Paris Peace [Agreements]…. Right now I wish very much to implement that UN convention”.3 He also advocated a trial of Khmer Rouge leaders for violations of the ceasefire later during the UN mission.4 Both Co-Prime Ministers had called for an international trial at a conference in Phnom Penh in August 1995.5 Earlier in the year King Norodom Sihanouk had also called for an international tribunal, whilst encouraging certain Khmer Rouge leaders to join the government.6 International organisations had also been involved in calls for justice, with previous efforts by the Cambodia Genocide Project, the Cambodia Documentation Commission, and the Campaign to Oppose the Return of the Khmer Rouge lobbying foreign governments to prosecute Khmer Rouge leaders during the 1980s.7 Nevertheless, it was in June 1997 that the complex process of creating the ECCC began.
Ieng Sary’s pardon had provoked disquiet amongst foreign diplomats in Phnom Penh, and spurred both the Cambodia Office of the UN High Commissioner for Human Rights and the Secretary-General’s Special Representative for Human Rights, Thomas Hammarberg, into action.8 Hammarberg frequently identified impunity as the greatest human rights issue in Cambodia.9 He began to discuss the possibility of UN involvement in a transitional justice mechanism in meetings with government officials. In April 1997 Hammarberg secured a clause in a resolution at the UN Commission on Human Rights
2 Phnom Penh Domestic Service, Newspaper Blasts Tokyo Conference on Kampuchea, FBIS-APA- 81-117, 16 September 1981; Phnom Penh SPK, Text of Hun Sen Interview in Moscow, FBIS-APA-84- 073, 11 April 1984. 3 Quoted in Tom Fawthrop and Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal (Sydney: University of New South Wales Press, 2005), 103. 4 Phnom Penh Samleng Pracheachon Kampuchea Radio Network, Hun Sen Calls for Trial of Khieu Samphan, FBIS-EAS-93-063, 4 April 1993. 5 Ker Munthit, "Genocide Seminar Calls for 'Commission of Truth'," Phnom Penh Post, 25 August 1995. 6 The radio report indicated that “As for Khieu Samphan and a number of other KR elements, they are free to join the Royal Government, create political parties, and set up as many newspapers as they desire, the king said”. Phnom Penh National Radio of Cambodia Network, KR Censured for Choice to Continue War, FBIS-EAS-95-027, 9 February 1995. 7 Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport: Praeger, 2005), 131-32. 8 Steve Heder, "Politics, Diplomacy, and Accountability in Cambodia: Severely Limiting Personal Jurisdiction in Prosecution of Perpetrators of Crimes against Humanity," in Historical Justice in International Perspective: How Societies are Trying to Right the Wrongs of the Past, ed. Manfred Berg and Bernd Schaefer (Washington D.C.: German Historical Institute, 2009), 195. 9 Anette Marcher, "Hammarberg: Impunity Cambodia's Problem," Phnom Penh Post, 29 October 1999; Beth Moorthy, "Hammarberg Defends his Track Record in Cambodia," Phnom Penh Post, 25 December 1998. 88 which requested that the Secretary-General examine any request for assistance related to a Khmer Rouge tribunal.10 He did so in order to clarify the UN’s position and to convince the Co-Prime Ministers that such a request would be welcomed. This action established a pattern that continued during the entire negotiation process: both the UN Secretariat and the Cambodian government were reluctant to be the first to act or to compromise. The conduct of the negotiations, in these early steps and throughout, was dominated by pride and by the perceived need to maintain a strong negotiating position.
In June 1997 there were conflicting reports about the status and location of Pol Pot, and it seemed that it might be possible to arrest him.11 On the same day that the Co-Prime Ministers announced they were sending a letter to the UN Secretary-General they were able to say that Pol Pot was under house arrest. As David Chandler observed at the time, “Cambodia’s two Prime Ministers seldom agree on much, to put [it] mildly, so when they stood side by side on June 21 to announce that Pol Pot had been captured, the event had an added level of significance”.12 The details of what had happened within the Khmer Rouge movement were still unclear but it was known that Pol Pot was being detained by military commander Ta Mok, who now appeared to be in charge of the Khmer Rouge movement.
In the letter to the Secretary-General, the Co-Prime Ministers requested UN assistance in “bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge”.13 The letter stated that “Cambodia does not have the resources or expertise to conduct this very important procedure” and asked that assistance be given similar to that provided to Rwanda and the former Yugoslavia.14 Thomas Hammarberg and the Office of the UN High Commissioner for Human Rights were responsible for the conception and drafting of the letter and for encouraging the Co-Prime Ministers to sign it.
Norodom Ranariddh and Hun Sen had mixed intentions in sending this letter. Domestically they saw it as a potential tool to weaken the Khmer Rouge movement. In negotiations with Khmer Rouge commanders the “stick” threat of prosecution and the
10 Office of the High Commissioner for Human Rights, "Situation of Human Rights in Cambodia: Commission of Human Rights Resolution 1997/49," E/CN.4/RES/1997/49, 11 April 1997. 11 David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton: Princeton University Press, 2012), 345. 12 David Chandler, "A Small, Muddled, Erratic, Frightened Man," Phnom Penh Post, 27 June 1997. 13 United Nations General Assembly, "Letter Dated 21 June 1997 from the First and Second Prime Ministers of Cambodian Addressed to the Secretary-General," A/51/930, 24 June 1997. 14 Ibid. 89
“carrot” of immunity or pardons were a useful tool in securing defections.15 The letter also sought to put pressure on Thai authorities to stop providing sanctuary to the remaining Khmer Rouge leaders on its side of the border.16
Internationally, there had been a swift turnaround from years of opposition to Khmer Rouge accountability and both Co-Prime Ministers recognised that the letter would be welcomed by many foreign governments. It was a chance for them to enhance their standing as individuals and as a government. Since they were competing with each other for power, neither could afford for his opponent alone to call for justice and to receive the heightened international legitimacy this move could bring.17 Few of these motivations would remain relevant in the years to come. Nevertheless, even once the Khmer Rouge movement had been defeated and Ranariddh was no longer a competitor for power, the 1997 letter would serve as a continued basis for UN involvement.
Hammarberg was not the only one who had chosen to address the challenge of Khmer Rouge impunity. At the same time as this UN process began, the U.S. State Department had begun work on possible forms of accountability. This work was championed by David Scheffer who worked in the Clinton administration and in 1997 was appointed as the first U.S. Ambassador-at-Large for War Crimes Issues. As the first information about Pol Pot’s marginalisation emerged, and after he was arrested within the Khmer Rouge, there was increasing American interest in finding a country willing and able to put Pol Pot on trial, or to build an ad hoc institution that could do so.18 U.S. officials considered various options to transport and detain Pol Pot until a tribunal either created or supported by the UN could be established. American diplomats made overtures to the Netherlands, Norway, Australia, Denmark, and Canada about either temporarily detaining Pol Pot or putting him on trial but none were willing to do so.19 However, these U.S. efforts, like the burgeoning UN process, were severely hampered by events in Cambodia soon after they had begun.
Hun Sen Seizes Power
The announcement of Pol Pot’s detention and the request for UN assistance proved to be one of the last joint acts of the Co-Prime Ministers. The relationship between the two
15 Balakrishnan Rajagopal, "The Pragmatics of Prosecuting the Khmer Rouge," Yearbook of International Humanitarian Law 1 (1998): 191, 96. 16 Heder, "Politics, Diplomacy, and Accountability," 196; David Chandler, "Will There Be a Trial for the Khmer Rouge?," Ethics and International Affairs 14, no. 1 (2000): 80. 17 Lao Mong Hay, interview by author, 28 March 2014, Phnom Penh. 18 Scheffer, All the Missing Souls, 345. 19 Ibid., 348-51. 90 individuals, and their respective parties, had long been one of competition and distrust. The first half of 1997 saw an increasing number of incidents where forces loyal to each leader fought in the streets. This situation was exacerbated by their bids for Khmer Rouge defections. In late June 1997 a negotiator for Ranariddh was close to reaching a deal with Ta Mok for the defection of the majority of the remaining Khmer Rouge forces. These soldiers would have joined FUNCINPEC-aligned units within the armed forces and greatly increased Ranariddh’s power.20
Hun Sen’s forces struck on 5 July to pre-empt this deal, moving to take over and secure FUNCINPEC headquarters and its military strongholds in Phnom Penh.21 The defeat of FUNCINPEC forces had been secured by the afternoon of 6 July. More than fifty FUNCINPEC members, mostly military officials, were killed whilst in the custody of security personnel.22 A similar number of other corpses without identification papers or death certificates were quickly incinerated at local wats under the orders of armed soldiers who claimed the bodies were those of Khmer Rouge soldiers.23 Ranariddh had fled Cambodia days earlier in anticipation of violence, and went into exile, first in Paris and then in Bangkok. FUNCINPEC was no longer, and would never again be, a significant political or military threat to Hun Sen and the CPP.24 Soldiers also took this opportunity to loot properties throughout the city. A government committee later estimated the damages at US$50 million.25
International condemnation came quickly. These events had threatened the supposedly successful outcome of UNTAC and the perception that peace and democracy had been firmly established in Cambodia.26 In August, Hun Sen’s chosen nominee, FUNCINPEC member Ung Huot, was elected by the National Assembly as First Prime Minister in Ranariddh’s place.27 He was assumed to be pliable and weak. However, his presence allowed Hun Sen to say that he had not usurped power since FUNCINPEC still retained
20 MacAlister Brown and Jospeh Zasloff, Cambodia Confounds the Peacemakers 1979-1998 (Ithaca: Cornell University Press, 1998), 262. 21 Ibid. 22 UN Centre for Human Rights, "Memorandum to the Royal Government of Cambodia: Evidence of Summary Executions, Torture, and Missing Persons Since 2-7 July 1997," HR REC 13/97, 21 August 1997, 5. 23 Ibid., 21. 24 David Chandler, "Democracy in Cambodia: Return to Sender, Not at this Address," Asian Studies Review 21, no. 2-3 (1997). 25 Robin McDowell, "Damages to Business from Cambodian Coup Over $76 Million," Associated Press, 29 July 1997. 26 Caroline Hughes, "International Intervention and the People's Will: The Demoralization of Democracy in Cambodia," Crticial Asian Studies 34, no. 4 (2002): 541. 27 Christine Chaumeau, "Relieved Ung Huot Carries the Day," Phnom Penh Post, 15 August 1997. 91 the top position.28 Nonetheless, Thomas Hammarberg took the earliest and hardest line, calling these events a “violent coup d’état”.29 A U.S. State Department spokesperson said it was “very disturbing” that “Hun Sen has illegally and unfairly usurped the power of the democratically elected authorities” and the U.S. initially refused to recognise Ung Huot as Ranariddh’s replacement.30 Australia suspended a A$2.1 billion defence co-operation program with Cambodia. Minister for Foreign Affairs Alexander Downer said the overthrow of Ranariddh was “completely unacceptable” and that the killing of FUNCINPEC officials “was a matter of very profound concern to us”.31 Aid was also suspended from other major donors such as Japan and the United States.32
The Credentials Committee of the United Nations General Assembly voted to keep Cambodia’s seat empty rather than award it to either side, a move that was categorised by diplomats as a “slap in the face” and “very embarrassing” for Hun Sen.33 Once again, the authorities in Phnom Penh, and Hun Sen himself, were denied international recognition as they had been throughout the 1980s. Cambodia’s entry into ASEAN, planned for that month, was postponed and did not occur until nearly two years later in April 1999. ASEAN took a softer rhetorical line, saying they were delaying Cambodia’s entry “in light of the unfortunate circumstances which have resulted from the use of force”.34 Nonetheless, this postponement was a significant action for an organisation that prided itself on its policy of non-interference.
There was no chance of progress on the issue of a Khmer Rouge tribunal at this time. However, rhetorical support for accountability was still forthcoming from both political parties. Neither Norodom Ranariddh nor Hun Sen could risk withdrawing their support since commitment to accountability was viewed as a key benchmark for international legitimacy.35 In the aftermath of the coup they both reaffirmed their support for a trial.
28 Trish Fitzgerald and Jason Barber, "A Pawn or a Realist? Ung Huot Moves Up," Phnom Penh Post, 25 July 1997. 29 "UN Special Envoy for Human Rights in Cambodia Condemns Violence," Agence France-Presse, 8 July 1997. 30 Barry Schweid, "U.S. Tells Hun Sen the Coup Will Not Be Tolerated," Associated Press, 18 July 1997; "U.S. Won't Recognize Ung Huot as Cambodia's Co-Premier," Japan Economic Newswire, 17 July 1997. 31 Nina Field, "Australia Suspends Cambodian Defence Aid," Australian Financial Review, 16 July 1997. 32 Nick Lenaghan, "Asean says 'No' - Foreign Aid Put on Ice," Phnom Penh Post, 12 July 1997. 33 Jason Barber and Huw Watkin, "Hun Sen Left Seatless at UN," Phnom Penh Post, 26 September 1997. 34 Laurinda Keys, "ASEAN Postpones Entry of Cambodia to Trade Group Following Coup," Associated Press, 10 July 1997. 35 David Boyle, "Establishing the Responsibility of the Khmer Rouge Leadership for International Crimes," Yearbook of International Humanitarian Law 5 (2002): 178; Chandler, "Will There Be a Trial for the Khmer Rouge?," 79. 92
To help with his international reputation after the coup, Hun Sen hired an American legal and public relations firm. The firm arranged interviews for Hun Sen to tout his democratic credentials in the lead up to the 1998 election.36 One of the recommendations the consultants made was that Hun Sen should actively support a Khmer Rouge trial.37
Hun Sen could also use discussions of a trial to talk about putting Ranariddh on trial along with the Khmer Rouge leaders for collusion, attributing the fighting in 1997 to Ranariddh’s alleged desire to see the Khmer Rouge return to power.38 Ranariddh was convicted in absentia in March 1998 for weapons smuggling and plotting to overthrow the government. He was sentenced to thirty-five years imprisonment and a fine of over US$50 million, before being pardoned the same month by his father, the King.39 International diplomatic efforts focussed on the elections scheduled for July 1998 and Ranariddh’s right to participate, but not on returning him to his former position as First Prime Minister. This early period of the process of creating a Khmer Rouge tribunal shows the importance of international legitimacy to the whole endeavour, at least for the Cambodian parties. But at this early stage, these goals of legitimacy were focussed on the short term and the impacts on domestic political competitions.
American Efforts
At the same time, American diplomats continued their work to put Khmer Rouge leaders on trial. David Scheffer characterised the issue as “a personal mission that I translated into an American mission once I became war crimes ambassador”.40 In early 1998 Scheffer investigated the possibility of extending the ICTY to include a chamber dealing with crimes in Cambodia. In April the American delegation to the UN circulated a draft resolution for a third chamber at the ICTY, with additional judges and an extended personal jurisdiction to cover Cambodia. It would have been funded by voluntary contributions from member states rather than the assessed contributions that funded the ICTR and the rest of the ICTY.41 The American delegation faced the dilemma that they required Pol Pot’s arrest to generate the political momentum necessary for the
36 Tina Rosenburg, "Hun Sen Stages an Election," New York Times, 30 August 1998. 37 Matthew Grainger, "Spinmeisters Ask for Progress on Arrests in Political Killings," Phnom Penh Post, 13 November 1998. 38 Huw Watkin, "Politics of Trying Pol Pot," Phnom Penh Post, 10 October 1997. 39 Robert Birsel, "Pardon for Cambodian Prince Revives Peace Hopes," Reuters News, 22 March 1998; Reach Sambath, "Court Sentences Deposed Cambodian Premier to 30 Years In Absentia," Agence France-Presse, 18 March 1998. 40 Scheffer, All the Missing Souls, 343. 41 Ibid., 356-57. 93 creation of a trial, but that no country was willing to have temporary custody of Pol Pot without certainty that a tribunal would be established.42
Although U.S. diplomats did not succeed in attempts to expand the ICTY, early American involvement still focussed on securing a central role for the UN Security Council. Chinese opposition to a trial, and their veto power on the Security Council, were a fundamental obstacle. The Chinese government had concerns that a trial would highlight the role of Chinese support for the Khmer Rouge, and would set a dangerous precedent of prosecuting an Asian communist government which had borrowed many of its policies from Mao and the Chinese Communist Party. In response to this reluctance, David Scheffer argued to the Chinese delegation that Security Council involvement was preferable “otherwise, the process could spin out of control with negative consequences for both China and the United States”.43 An additional problem for the centrality of the UN Security Council was that the ICTY and ICTR had been established under the authority of Chapter VII of the UN Charter. This provision allows the Security Council to act “to maintain or restore international peace and security,” which was hard to justify in the case of Cambodia.44 Scheffer observed that by July 1999, when the UN Secretariat began negotiating with the Cambodian government, his “efforts to keep the Security Council in the driver’s seat were swept aside”.45
Hun Sen was suspicious of this American advocacy, saying “I suspect that there may be a political trick behind the tribunal. Why did the United States not push for one a few years ago? There might be some intentions to push Khmer Rouge leaders back into the jungle to continue the use of the Khmer Rouge as a political counter-weight”.46 He feared that the intention was to use a tribunal to destabilise his regime.47 This impression crystallised in a resolution in the U.S. House of Representatives in October 1998 which expressed “the sense of the House of Representatives regarding the culpability of Hun Sen for violations of international humanitarian law after 1978”.48 In subsequent weeks a U.S. Senate draft resolution also called for the U.S. government to collect evidence
42 Ibid., 354. 43 Ibid., 377. 44 “Charter of the United Nations,” available at http://www.un.org/en/charter-united- nations/index.html. 45 Scheffer, All the Missing Souls, 385. 46 Catherine Philp, "No Tribunal, Gov't Insists, Until After July Elections," Cambodia Daily, 8 May 1998. 47 John D. Ciorciari, "History and Politics Behind the Khmer Rouge Trials," in On Trial: The Khmer Rouge Accountability Process, ed. John D. Ciorciari and Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009), 66. 48 Jeff Smith, "US House Calls PM Criminal," Cambodia Daily, 12 October 1998. 94 against Hun Sen for an international trial for crimes against humanity.49 Although not often expressed so explicitly, members of the international community see transitional justice as a means of bringing about change in foreign countries. Since transitional justice is assumed to be part of transitions towards liberal democracy, this necessarily implies a decrease in the power of a government not currently having to engage in a true electoral competition. The Cambodian government was unwilling to facilitate such a transition as a consequence of the ECCC, and worked to prevent it. The suspicion that a trial would be used for ulterior motives by external actors subsequently coloured the government’s engagement with the negotiation process and the eventual conduct of the court.
Within the Khmer Rouge Movement
As domestic and international calls for accountability gained strength, there were developments within the Khmer Rouge movement as well. In late July 1997, the Khmer Rouge, under the leadership of Ta Mok, put Pol Pot on trial in their stronghold of Anlong Veng. Pol Pot was arrested after ordering the murder of Democratic Kampuchea Defence Minister Son Sen, who was killed along with fourteen of his relatives in June 1997. The Khmer Rouge put Pol Pot on trial for this crime; no mention was made of the 1970s. Instead, he was denounced for the murders of Son Sen and his family, attempts to murder or detain Ta Mok and Nuon Chea, and for “destroying the policy of national reconciliation”.50 Surrounded by an audience chanting slogans about crushing the Pol Pot clique, he did not speak and was not asked to.51 Three commanders who had remained loyal to Pol Pot and carried out the killings were also tried, found guilty, and executed. Pol Pot was sentenced to life under house arrest.52
In concert with their efforts at the UN to create a trial, the U.S. government was also working to detain Pol Pot. American diplomats had been in discussions with Thai authorities to ensure cooperation if the Khmer Rouge tried to enter their territory or, as seemed likely, they were already using the border area. In early April President Clinton authorised the relevant departments to take action to detain the top Khmer Rouge leaders, with Pol Pot, Ta Mok, Khieu Samphan and Nuon Chea particularly targeted.53
49 "CPP Offers Blistering Defense Against US Senate Proposal," Cambodia Daily, 28 October 1998. 50 Nate Thayer, "Brother Enemy No. 1," Phnom Penh Post, 15 August 1997. 51 David Chandler, Brother Number One: A Political Biography of Pol Pot (Chiang Mai: Silkworm Books, 2000), 182. 52 Philip Short, Pol Pot: The History of a Nightmare (London: John Murray Publishers, 2004), 442. 53 Scheffer, All the Missing Souls, 355-56. 95
These U.S. efforts to secure Pol Pot’s extraction and detention proved in vain when he died in April 1998. Heart failure was the apparent cause of death, but there have been conflicting reports that suggest that he had taken his own life to avoid being taken into custody or that he had been killed.54 His body was shown to journalists, and Thai forensic specialists were allowed to take fingerprints, dental photographs, and hair samples but no autopsy was performed and his body was cremated hastily and ignominiously.55 At the time, Ta Mok told a journalist “Pol Pot has died like a ripe papaya. No one killed him, no one poisoned him. Now he’s finished, he has no power, he has no rights, he is no more than cow shit. Cow shit is more important than him. We can use it for fertilizer”.56 In later years Thai intelligence sources claimed that Pol Pot had been poisoned and Ta Mok, after his arrest, said through his lawyer that Pol Pot’s death had been ordered, although he declined to specify by whom.57
Pol Pot’s death was not strategically significant; he no longer led the Khmer Rouge. Nonetheless, it had immense symbolic importance. In Cambodia the Khmer Rouge regime is most frequently referred to as the “Pol Pot era”, a personification of blame that has been built by the government since 1979. Scheffer was concerned that this death would mean that U.S. efforts would be abandoned but found that others within the U.S. administration recognised that the project of Khmer Rouge accountability went beyond Pol Pot.58
The symbolic importance of Pol Pot was also an issue for the ruling CPP. Since 1979 the government had referred to the Khmer Rouge as the Pol Pot-Ieng Sary clique and defined itself in opposition to that group. The defection of Ieng Sary and the death of Pol Pot meant that the burden of Khmer Rouge responsibility fell to those remaining in the movement, particularly Ta Mok. The crimes any individual leader might have been responsible for during the Khmer Rouge era were of less relevance than their continued opposition to the government. The death of Pol Pot was a precursor to the narrative changes the CPP would need to make with the end of the Khmer Rouge movement. The old foes they had long defined themselves against would not be a potent force for much
54 Nate Thayer, "Chance of a Lifetime," Far Eastern Economic Review, 28 January 1999. 55 Short, Pol Pot, 442. His cremation site can be visited as a tourist site, outside of Anlong Veng, less than a kilometre from the Thai border, and across the road from a new casino development. 56 Quoted in Chandler, Brother Number One, 186. 57 Wassana Nanuam, "Pol Pot - Brutal KR Chief Poisoned," Bangkok Post, 19 March 2002; Sutin Wannabovorn, "Pol Pot May Have Been Poisoned - Thai Intelligence Service," Reuters News, 19 April 1998; "Report: Ta Mok Says Pol Pot's Death Was Execution," Associated Press, 26 May 1999. 58 Scheffer, All the Missing Souls, 360. 96 longer. A trial of Khmer Rouge leaders was one way to prolong the relevance of this narrative the CPP relied on so heavily.
Final Defections
The elections of July 1998 were an important step to re-legitimise Cambodian democracy in the eyes of international stakeholders. Norodom Ranariddh was allowed to return and participate, and the Joint International Observer Group deemed the election “free and fair to an extent that enables it to reflect in a credible way the will of the Cambodian people”.59 Whilst the CPP achieved a clear majority of seats it failed to secure the two- thirds majority required under the constitution to form government. An agreement to form a coalition was not reached until November 1998, preventing any new government initiatives in the interim.
The UN Secretary-General had established a Group of Experts in July 1998 and tasked them with examining the evidence available against Khmer Rouge leaders, considering various national and international options for justice, and establishing the feasibility and practicalities of these options. The Group comprised Sir Ninian Stephen, former Governor-General of Australia, Judge Rajsoomer Lallah, former Mauritius Supreme Court Justice, and Professor Steven R. Ratner, an American international law expert. Their visit to Cambodia was delayed because of the long-running political stalemate but they were eventually able to visit from 14 to 23 November and met government officials, civil society leaders, and foreign ambassadors. Before they had time to compile their recommendations and release a report, however, significant changes occurred in the Khmer Rouge movement.
The death throes of the Khmer Rouge had been announced many times during the late 1990s, yet after each defection or defeat there remained a group still loyal to the movement, albeit smaller and smaller. In March 1998, in a coordinated effort with the Royal Cambodian Armed Forces, thousands of Khmer Rouge soldiers turned against Ta Mok and forced those loyal to him to flee from Anlong Veng, the long-time Khmer Rouge base near the Thai border.60 The final large-scale defection occurred in early December 1998. Eight high-ranking commanders, including Meas Muth who had been Commander of the Democratic Kampuchea Navy, defected to the government, bringing with them twenty thousand soldiers and civilians.61
59 "Cambodia Poll Sufficiently Free and Fair - Observers," Reuters News, 27 July 1998. 60 Jason Barber and Bou Saroeun, "Anlong Veng Death Rattle," Phnom Penh Post, 10 April 1998. 61 Kimsan Chantara, "Defectors Pledge 'No More Fighting'," Cambodia Daily, 8 December 1998; Nate Thayer, "End of Story?," Far Eastern Economic Review, 17 December 1998. 97
It was soon suspected that the remaining leaders, now believed to have only a few hundred fighters at most, were within reach. Ta Mok, Nuon Chea, and Khieu Samphan were reportedly being held by Thai authorities at the request of American officials.62 Khieu Samphan and Nuon Chea were moved to Pailin but Ta Mok would remain elusive for a few more months.63 On 25 December 1998 Hun Sen announced that he had reached a deal with Khieu Samphan and Nuon Chea and the pair wrote letters to him requesting that they be allowed to become “normal citizens”.64 With the question of a trial looming it was unclear what deals had been struck, with Hun Sen saying “We should not talk about any court. This is a time when we should talk about reconciliation”.65 Days later, Nuon Chea and Khieu Samphan were welcomed by the Prime Minister to his home in Phnom Penh. Hun Sen had told the Council of Ministers the day before that “we must dig a hole and bury the past, and look ahead into the 21st century”.66 When asked at a press conference if they would apologise to the victims of the Khmer Rouge, Khieu Samphan said “Yes sorry, very sorry” whilst asserting that “history should remain history”.67 Nuon Chea, bizarrely, stated, “I have great regret, not only for the people, but also for all the animals who suffered during the war”.68 Although not part of any official deal, statements by government officials suggested that it was unlikely the pair would be tried. If they were, it would be in a national court and they could apply for a royal pardon.69
Hun Sen’s decision to welcome Nuon Chea and Khieu Samphan so warmly, and his comments about burying the past, were poorly received internationally and domestically. The Vietnamese People’s Army newspaper said that Khmer Rouge crimes “cannot be forgotten and must be punished”.70 A U.S. State Department spokesperson welcomed the surrender but returned the conversation to the need for a trial: “We hope, and will continue to ensure, that this apparent surrender marks the first step in a process
62 Thayer, "End of Story?," 17 December 1998. 63 David Brunnstrom, "Khmer Rouge Leaders were 'Cornered'," Reuters News, 26 December 1998. 64 Ibid. 65 Kay Johnson and Khuy Sokhoeun, "Khieu Samphan, Nuon Chea Join Government at Pailin," Cambodia Daily, 28 December 1998. 66 Kay Johnson and Kimsan Chantara, "No Trial for Defectors, Hun Sen Asserts," Cambodia Daily, 29 December 1998. 67 Kay Kimsong, "'Let Bygones Be Bygones,' Say Former DK Leaders," Cambodia Daily, 30 December 1998. 68 Ibid. 69 Steve Heder, "Hun Sen and Genocide Trials in Cambodia: International Impacts, Impunity, and Justice," in Cambodia Emerges from the Past: Eight Essays, ed. Judy Ledgerwood (DeKalb, Illinois: Southeast Asia Publications, Center for Southeast Asian Studies, Northern Illinois University, 2002), 199. 70 Etcheson, After the Killing Fields, 152. 98 that will lead to accountability for Nuon Chea and Khieu Samphan, as well as for other, most senior, Khmer Rouge leaders. We trust that no actions will be taken by any party that could preclude achieving this goal”.71 One CPP official told a local reporter that Hun Sen’s actions “focus too much on the idea of national reconciliation without thinking of the reaction of the international community” and King Norodom Sihanouk said Hun Sen bore all the responsibility for “this unfortunate and dramatic affair of forgiveness for the Khmer Rouge”.72
Whether Hun Sen had meant to reject a trial with his comments or not, the immediate domestic and international backlash made it clear that his rhetoric needed to shift back to accountability. In a speech at the beginning of January 1999 he referred to his history of fighting the Khmer Rouge even when they were supported internationally, saying “Hun Sen was isolated because of his stand against the genocide”.73 As for the issue of a trial, he defended his decision to welcome Nuon Chea and Khieu Samphan as a way to end the war and the Khmer Rouge movement but also said “my position is that the trial of the Khmer Rouge is a fait accompli and to be proceeded [sic]”.74 Similarly, he expressed in an interview that “Without peace, justice cannot be found. I have said in the past, we should not talk about how to cook the fish while it is still in the water – first you need to catch the fish”.75
The themes and rhetorical devices that Hun Sen used to defend his position in early 1999 were ones that would be employed throughout the negotiation process whenever the Cambodian government was criticised for a lack of commitment to accountability. The first theme was pledging support for a trial and reinforcing the CPP’s credentials of its long opposition to the Khmer Rouge. The second was to warn of the dangers inherent in a trial, that stability and national reconciliation must be considered; “we need both peace and justice”.76 This theme was also present in comments made by former Khmer Rouge members who warned that reconciliation should not be jeopardised and raised the
71 "U.S. Says Khmer Rouge Leaders Must Face Justice," Reuters News, 28 December 1998. 72 Christine Chaumeau and Samreth Sopha, "'Sorry, Very Sorry' For So Much Death," Phnom Penh Post, 8 January 1999; "Sihanouk Says Cannot Support New K.Rouge Amnesties," Reuters, 30 December 1998. 73 Declaration of Samdech Hun Sen, Prime Minister of the Royal Government of Cambodia and Commander-in-Chief of the Cambodian National Armed Forces, 1 January 1999, UN KRT documents. As discussed in the Introduction, I am using a set of UN documents which are not publicly available. Throughout this thesis I will reference these documents as “UN KRT documents”. 74 Ibid. 75 Helen Jarvis, "PM Hun Sen: 'First You Need to Catch the Fish'," Phnom Penh Post, 19 February 1999. 76 "Aide Memoire: An Analysis on Seeking a Formula for Bringing Top KR Leaders to Trial," Cambodia New Vision, https://www.cnv.org.kh/cnv_html_pdf/cnv_14.PDF, January 1999. 99 spectre of a return to war without making a direct threat.77 The third theme of the discourse involved seeking to embarrass countries which had a history of supporting the Khmer Rouge. Hun Sen would raise the possibility of extending the temporal jurisdiction from 1975-1979, as usually advocated, to encompass the entire period from 1970 to 1998, which would include the American bombing and the details of diplomatic and financial aid given to the Khmer Rouge by foreign powers during the 1980s. Although never a serious proposition, the issue of temporal jurisdiction was used whenever the government was being pushed into greater action. It reminded other countries that there were possible risks for all concerned in an uncontrolled trial.
Following the defections of Khieu Samphan and Nuon Chea, all culpability and criminality was borne by Ta Mok as the only remaining high-level leader of the Khmer Rouge. For those who defected it seemed that crimes of the past had been washed away. As had long been the case, the highest crime was obstinacy and continued opposition to the government, rather than past actions. Hun Sen declared that Ta Mok, now with only a hundred or so rebels remaining to his cause, would not be allowed to defect but would be captured.78 It was widely known, but long denied, that Ta Mok was in Thai territory being protected by Thai authorities. On 4 March 1999 Madeleine Albright, U.S. Secretary of State, encouraged Thailand to arrest Ta Mok. The next day he was detained crossing the Thai-Cambodia border.79
The Group of Experts Report
The Group of Experts had been compiling their report during the period when these defections changed the political implications of a trial. They sent their report to the UN Secretary-General and to the Cambodian government in February 1999 and it was released publicly in March. It reviewed the possible physical evidence and witness testimony and concluded that the available evidence was not “a bar to prosecutions”.80 It also considered the applicable law, the appropriate personal, subject matter, and temporal jurisdictions, funding models, and means of establishing a tribunal.
The Group considered a range of different transitional justice mechanisms but focussed primarily on options for a trial. Regarding the possibility of a trial in the Cambodian
77 Statement of the Second National Congress of the Democratic National Unification Movement, 25 January 1999, UN KRT documents. 78 Jarvis, "PM Hun Sen: 'First You Need to Catch the Fish'," 19 February 1999. 79 Bou Saroeun and Peter Sainsbury, "The Last Arrest," Phnom Penh Post, 19 March 1999; Peter Alford and Joe Cochrane, "US to Press for Khmer Rouge Trial," The Australian, 4 March 1999. 80 United Nations, "Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135," S/53/850, 16 March 1999, 5. 100 court system they said that “the Cambodian judiciary presently lacks three key criteria for a fair and effective judiciary: a trained cadre of judges, lawyers, and investigators; adequate infrastructure; and a culture of respect for due process” and that “Cambodia’s system falls far short of international standards of criminal justice”.81 They therefore concluded that, despite the recognised advantages of a trial in the Cambodian system, such a model was not feasible. Instead, they recommended the creation of an ad hoc international tribunal to be located in the Asia-Pacific region but outside Cambodia.82 In a cover letter to the report, addressed to the UN General Assembly and Security Council, the Secretary-General reinforced the Group’s recommendations against a national tribunal and said that in order for a trial to meet the appropriate standards of justice and due process it must be conducted in an international court.83
The Cambodian government did not welcome the Group’s recommendations. In a response made public before the report had been released, Hun Sen wrote to the Secretary-General warning, repeatedly, of the possibility of a return to war if justice was dealt with improperly. He lauded the peace that had been established since the Group’s visit and stated that the government was now studying the experience of the South African Truth and Reconciliation Commission.84 In a later response, following Ta Mok’s arrest in March 1999, the government placed significant blame on the UN for past delays in finding justice. This aide-memoire discussed the Khmer Rouge’s seating at the UN in the 1980s and the delay in not sending the Group of Experts until the Khmer Rouge movement had almost collapsed. Touting the government’s success the aide-memoire stated that with the collapse of the Khmer Rouge the “Royal Government of Cambodia has, therefore, achieved what UNTAC and Paris Peace Accords failed”.85 As for Ta Mok, he would be tried in a national court, since “the culprit is a Cambodian national, the victims are Cambodians, the place of the commission of the crimes is also in Cambodia; therefore the trial by a Cambodian court is fully in conformity with the legal process”.86 By this stage, the short-term goals of the CPP relating to the end of the Khmer Rouge movement and the domestic competition for power with Ranariddh were no longer relevant. However, there was soon a new-found recognition of the broader and more
81 Ibid., 36-37. 82 Ibid., 57. 83 Ibid., 1-3. 84 Letter from Hun Sen to Kofi Annan, 24 March 1999, UN KRT documents. 85 United Nations General Assembly, "Aide-mémoire on the Report of the United Nations Group of Experts for Cambodia of 18 February 1999, Issued by the Government of Cambodia on 12 March 1999," A/53/866, 18 March 1999. 86 Ibid. 101 long-term legitimacy goals that a tribunal could serve, and so the government’s insistence on a domestic trial gradually crept towards a hybrid model.
Defining the Hybrid Model
In the days following the release of this aide-memoire Hun Sen softened his stance by saying that in order to ensure the trial of Ta Mok would meet international standards the government “welcomes assistance in terms of legal experts from foreign countries”.87 This proposition was expanded further in April at a meeting between Hun Sen and U.S. Senator John Kerry. At this meeting Hun Sen expressed for the first time a willingness for international judges and prosecutors to participate in a national process.88 The government would often make key concessions in response to interventions by foreign governments, rather than the UN, as these governments had more to offer the Cambodian government in return. However, given how often and how quickly Hun Sen changed his mind about the acceptable parameters of international participation it was difficult for the UN to gauge the sincerity of any breakthrough.
The eventual hybrid tribunal model emerged slowly and had many authors. Following a meeting with Hun Sen in May, Hammarberg started to publicly discuss a trial that would be “Cambodian and at the same time international in character. This is an absolutely new creature, we’ve not seen it anywhere in the world before”.89 Hun Sen stressed the urgency of the issue but demurred on the role of the executive, insisting that it was up to the court not just to decide who would be indicted but also what kind of international assistance would be accepted.90 By June 1999 the U.S. was also supporting the concept of a mixed tribunal.91 However, in internal meetings at the UN there were concerns that beginning to negotiate the structure of a hybrid tribunal risked UN involvement in a process that would not meet international standards.92 The Secretariat settled on four minimum conditions for UN participation: guarantees that all suspects located in Cambodian territories would be arrested and transferred to the tribunal, an independent
87 Letter from Hun Sen to Kofi Annan, 24 March 1999, UN KRT documents. 88 Beth Moorthy and Sarah Stephens, "PM Moots Possibility of Foreign Judges in KR Trial," Phnom Penh Post, 13 April 1999. 89 Beth Moorthy and Samreth Sopha, "KR Trial: ‘New Creature’," Phnom Penh Post, 28 May 1999. 90 "Samdech Hun Sen’s Letter on March 24, 1999 to HE Kofi A. Annan, Secretary-General of the United Nations," Cambodia New Vision, https://www.cnv.org.kh/cnv_html_pdf/cnv_16.PDF, March 1999. 91 Scheffer, All the Missing Souls, 383. 92 Fawthrop and Jarvis, Getting Away with Genocide, 156. 102 non-Cambodian prosecutor, a majority of international judges, and the inclusion of international crimes in the applicable law.93
UN officials formed these conditions into a proposal for the structure of a court. It would be established under Cambodian law, would prosecute crimes against humanity and genocide as well as crimes under Cambodian law, and would have a temporal jurisdiction from 1975 to 1979. It would have a personal jurisdiction defined to “reach the major political and military leaders of the Khmer Rouge and those most responsible for the most serious violations of human rights”.94 It would consist of a chamber of five or seven judges, a minority of them Cambodian, which would serve as the court of first and last instance; there would not be an appeals process. The prosecutor would be appointed by the Secretary-General and defendants would be tried in Nuremberg-type joint trials. The local costs of the court would be covered by the government and the rest of the funding would come through voluntary international contributions.95
A draft of this model was presented to the UN Security Council in late July. Although the Russian and Chinese representatives stridently argued that the Security Council did not need to be involved in the process, the Secretariat had “an implicit green light” to negotiate.96 This UN draft had been created without consultation with the Cambodian government. That it was presented to other member states and leaked to the press before being discussed with the Cambodians set a poor tone for discussions. The letter the Cambodian government sent in response did not directly respond to any aspect of the UN’s proposal. Instead, it reminded the Secretariat of the government’s previous statements regarding a national court and requested that the UN send experts to help draft laws for the national prosecution of genocide and crimes against humanity, and then send international judges and prosecutors to participate in this national process.97
The complexity of the forthcoming negotiation process, and the trials themselves, were underestimated by the government.98 Ta Mok was approaching the limit of the six months of pre-trial detention allowed under Cambodian law once charges have been laid. An amendment was passed which allowed for up to three years of detention for
93 Daphna Shraga, Note for the File: Trial of Khmer Rouge Leaders - UN Assistance, 7 June 1999, UN KRT documents. 94 Scheffer, All the Missing Souls, 384. 95 Ibid., 384-85. 96 Ibid., 385. 97 Letter from Ouch Borith to Ralph Zacklin, RC/MP/0140/99, 12 August 1999, UN KRT documents. 98 Thomas Hammarberg, Some Notes for the UN Mission to Cambodia 25 August - 1 September, 17 August 1999, UN KRT documents. 103 someone charged with genocide or crimes against humanity.99 By this time Ta Mok had been joined in prison by Kaing Guek Eav, alias Duch, who had been the commander of the Phnom Penh prison and torture centre S-21.100 He had been found by a journalist and arrested two weeks after he started giving interviews, although spokesperson Khieu Kanharith conceded that the government had known for two years that Duch was alive.101 Duch had converted to Christianity, appeared to be remorseful and a willing witness, and said “For the trial of myself, I don’t worry, it is up to Hun Sen and Jesus”.102
The UN Secretariat made its first trip to Phnom Penh to discuss the tribunal in late August 1999. The Cambodian government created a high-level Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders, chaired by Senior Minister Sok An.103 The task force presented a draft law which incorporated crimes against humanity and genocide into Cambodian law, and provided for the participation of international judges in a national trial. These judges would be suggested by the Secretary-General and appointed by the Supreme Council of the Magistracy, the body which governs the Cambodian judiciary.104 The draft law included one article that stated, “This law is retroactive” and it expanded the definition of genocide to reflect events in Cambodia more closely, adding to the usual specification of “national, ethnical, racial or religious” victims the persecution of “any other group determined on the basis of any criterion, such as assets, degree of education, sociological group (urban/rural), allegiance to a political regime or system (old people/new people), social class or category (business person, civil servant etc.)”.105
The UN draft had been amended to respond to some of the criticisms it had initially received from member states and human rights organisations. The provision for group trials had been removed and an appeals chamber had been incorporated. It retained the majority of international judges and a sole international prosecutor to be appointed by the Secretary-General. It allowed for the retrial of anyone previously tried in the Cambodian court system, invalidated past amnesties, and forbade the issuance of any
99 "Trials for Khmer Rouge Ever More Remote," Phnom Penh Post, 6 August 1999. 100 "Duch and Ta Mok Face Charges Under 'Anti-KR' Law," Phnom Penh Post, 14 May 1999. 101 Nic Dunlop, The Lost Executioner: A Story of the Khmer Rouge (London: Bloomsbury, 2005); Nic Dunlop and Nate Thayer, "Duch Confesses," Far Eastern Economic Review, 6 May 1999; Ker Munthit, "Human Rights Groups Worry for Safety of Khmer Rouge Torturer," Associated Press, 30 April 1999. 102 Dunlop and Thayer, "Duch Confesses," 6 May 1999. 103 Fawthrop and Jarvis, Getting Away with Genocide, 159. 104 Comments on the Draft Law Concerning the Punishment of the Crime of Genocide and Crimes Against Humanity, Letter from Ralph Zacklin to Sok An, 27 August 1999, UN KRT documents. 105 Fawthrop and Jarvis, Getting Away with Genocide, 160. 104 further amnesties.106 These provisions were particularly targeted at Ieng Sary whose status had been frequently discussed, but were also designed to limit the means by which the Cambodian government could protect suspects. These measures were controversial as they violated the legal principle that people should not be tried multiple times for the same crimes, and because they were seen to diminish the validity of the Cambodian judiciary.
International criminal law expert William Schabas characterised the UN draft as containing “unfortunate overtones of arrogance” and proposing a tribunal that would essentially “be run out of New York”, but he also condemned the Cambodian draft as “nothing but their own miserable court system complemented by a minority participation of foreign experts”.107 The Cambodian government wanted UN participation in, and approval of, a trial process as a trial conducted without such support would not have garnered international acceptance. However, the government sought to achieve this goal with the minimum possible conditions in order to limit the risks associated with any trial. Over the long negotiation period the government also used its mere participation in talks as evidence of its commitment to accountability, even when progress towards an actual trial was minimal or non-existent. Despite the wide gap between their positions, the two negotiation teams agreed that the Cambodian task force would come up with a new draft in light of the UN’s comments.
Former members of the Khmer Rouge reacted warily to the prospect of a trial. Ieng Sary said in an interview in August 1999, “Honestly in my heart the wound has healed. If we perform surgery for [the sake of] justice it is not important…. Those wounds mustn’t be stirred up”.108 In a letter to the UN Secretary-General's Personal Representative in Cambodia, Lakhan Mehrotra, a group of former Khmer Rouge commanders supported Hun Sen’s call for a trial with a majority of Cambodian judges, calling it “the internal affair of Cambodia”.109 This letter characterised people who were advocating for a court with a broad jurisdiction as acting “without responsibility, creating instability in Cambodia’s national society, and can lead to the division and arouse bloody armed
106 Comments on the Draft Law Concerning the Punishment of the Crime of Genocide and Crimes Against Humanity, Letter from Ralph Zacklin to Sok An, 27 August 1999, UN KRT documents. 107 Quoted in Fawthrop and Jarvis, Getting Away with Genocide, 161. 108 Anette Marcher and Peter Sainsbury, "UN Seen Softening on Trial for Khmer Rouge," Phnom Penh Post, 20 August 1999. 109 "To Express Views and Will of Representatives of Civil Servants, Armed Forces, and People in Breakaway Areas from KR Leaders to Live in National Fold of Cambodian Concerning the Issue of KR Leaders Trial," Letter from Representatives of Civil Servants and People in Breakaway Areas to H.E. Lakhan Merotra, Special UN Representative to Cambodia, 28 August 1999, UN KRT documents. 105 conflicts again in Cambodia. If the conflicts happen, don’t say about finding justice, we cannot even prevent people’s lives from being killed”.110
Any progress that had been achieved at the August meetings was scuppered at a meeting between Hun Sen and Kofi Annan on 16 September in New York. Hun Sen presented an aide-memoire that stated Cambodia did not want the issue of a Khmer Rouge tribunal to be submitted for discussion at either the UN General Assembly or Security Council, and that the government also did “not request for the establishment of a mixed tribunal nor any special court, but just take into consideration the possibility of allowing foreign judges and prosecutors to participate in the existing national court of Cambodia to prosecute the KR leaders”.111 He presented three options for UN involvement. The first was to provide legal experts to help draft a law incorporating international crimes into Cambodian jurisprudence and to assign judges and prosecutors to assist with a trial within the Cambodian court system. The second was to provide only legal experts and not to have any international judges participate in proceedings. The third option was to end UN involvement and for Cambodia to proceed alone.112
Another American intervention sought to salvage the process. David Scheffer worked to find different ways to combine Cambodian and international elements. Since the government found the terminology of a “mixed tribunal” objectionable, Scheffer moved towards discussing a “special chamber” within the Cambodian system.113 The balance of judges was crucial. In putting forward a concept paper for a special chamber Scheffer incorporated trial and appeal level chambers, a temporal jurisdiction from 1975 to 1979, and a personal jurisdiction that focussed on “senior leaders and those most responsible”. Although this document stated a preference for a majority of international judges it also suggested the supermajority system for the first time. In this voting system Cambodian judges would be in the majority but the vote of four of five judges would be required to reach a decision. This concept was a way to reach a compromise on the power of national and international judges but it also represented a compromise between the unanimity required of juries in a common law system and the simple majority of judges required in civil law verdicts.114
110 Ibid. 111 Aide Memoire Meeting Between Samdech Hun Sen Prime Minister of the Royal Government of Cambodia and His Excellency Kofi Annan Secretary-General of the United Nations, 16 September 1999, UN KRT documents. 112 Ibid. 113 Scheffer, All the Missing Souls, 386-87. 114 Ibid., 387. 106
Hun Sen reacted favourably to the idea of a supermajority but Hans Corell, the head of the UN’s Office of Legal Affairs, was wary and continued to push for a majority of international judges, as well as guarantees of arrest and due process standards. Scheffer visited Phnom Penh in October 1999. In his discussions with Sok An the term “extraordinary” rather than “special” chamber took hold and the supermajority model was welcomed. In recounting these meetings Scheffer also noted the conversations he had outside of the negotiations, conversations which revealed the pervasive but rarely discussed complexities of the issue for his Cambodian interlocutors. As well as advocating for the interests of their party and government, they were victims of the Khmer Rouge. Sok An and Om Yentieng, an advisor to Hun Sen, talked about witnessing the deaths of family members and the terror and hopelessness of life in Democratic Kampuchea.115
The government continued to work on revising the law and in late December they sent a draft to the UN, requesting comments within the next nine days before a meeting of the Council of Ministers on 6 January 2000.116 Already perturbed by the short notice, the UN Secretariat had a number of objections to the law in its current state. The draft law called for a majority of Cambodian judges and the supermajority voting structure and required the agreement of both Co-Prosecutors (one Cambodian, one international) in order to indict. The role of the Investigating Judge was unclear and the law did not seem to contain a provision for this role to also be a joint position between a Cambodian and an international judge.
The Secretariat did not want to endorse a process it felt would be substandard but was concerned not to appear unhelpful. Corell responded to the draft in advance of the imposed deadline and raised a number of UN concerns. The law contained a provision for member states as well as the Secretary-General to recommend international judges who would then be chosen by the Supreme Council of Magistracy, where the Secretariat insisted judges nominated by the Secretary-General must be appointed. They also required that judges nominated by the Cambodian government be approved by the Secretary-General. There were concerns that both the supermajority system and the role of the Co-Prosecutors would lead to paralysis, and therefore the Co-Prosecutors must have the capacity to indict separately. Incorporating the UN’s previous conditions, Corell
115 Ibid., 389-90. 116 Draft Law on the Establishment of Extraordinary Formation in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Letter from Ouch Borith to Kofi Annan, RC/MP/0325/99, 20 December 1999, UN KRT documents. 107 commented that the guarantees of arrest were not robust enough and that the clause forbidding any future amnesties must also invalidate past amnesties.117
The draft law was nonetheless approved by the Council of Ministers. When asked by journalists, Sok An said he had not received the UN comments in time and had yet to read them.118 One outstanding issue was resolved when Hun Sen announced that there would be an international Co-Investigating Judge. He did so during a visit of Japanese Prime Minister Keizo Obuchi, calling it a “gift”.119 Concessions were once again made for visiting foreign delegations rather than the UN, a combination of the importance of face to face contact and the ability of foreign governments to offer better incentives. The draft law was forwarded to the National Assembly on 18 January.120
A series of terse letters was exchanged in February. The Secretary-General wrote to Hun Sen to complain that the UN was being portrayed as slow and uncooperative. He also raised what the UN considered to be “four key issues”: the need for guarantees of arrest (which whilst already included in the Cambodian draft must be “accompanied with practical assurances”), all amnesties must be excluded, there must be a single independent and international prosecutor and investigating judge, and the majority of judges must be international judges nominated by the Secretary-General.121
Hun Sen’s response chose not to address the four issues raised. Instead, he said: we are surprised by the gap between the position raised in your letter and ours which has been already supported by a number of distinguished UN member states. This gap cannot be welcomed as it is unfair to Cambodia and does not reflect the achievements of our efforts made so far. Although the gap cannot be welcomed, I still hope that Your Excellency will positively review your position with other member states of the United Nations that have contributed to the drafting of this law.122 The interventions of foreign governments were clearly a source of confusion. Issues the Cambodians considered settled were then revisited or seemingly reneged on by the UN, such as the idea of a supermajority, which caused mistrust. The UN inconsistently welcomed these outside interventions. Although recognising them as useful for
117 Non-Paper on Khmer Rouge Trial in Letter from Hans Corell to Ouch Borith, 5 January 2000, UN KRT documents. 118 Chhay Sophal, "Cambodian Takes First Step to Khmer Rouge Justice," Reuters, 6 January 2000. 119 Stefan Smith, "Obuchi Ends Cambodia Visit with Hope Enhanced for Genocide Trial," Agence France-Presse, 12 January 2000; Anette Marcher and Vong Sokheng, "Kerry Visit Raises KR Tribunal Hopes," Phnom Penh Post, 24 November 2000. 120 "Cambodian PM Stands Behind Pol Pot Lieutenant as Trial Debate Looms," Agence France- Presse, 30 November 2000. 121 Letter from Kofi Annan to Hun Sen, 19 April 2000, UN KRT documents. 122 Letter from Hun Sen to Kofi Annan, 10 February 2000, UN KRT documents. 108 advancing the process they were reluctant to become entangled in a tribunal they had not negotiated and to compromise their standing for future negotiations.
In Hun Sen’s letter he also invited the UN to send a team to Phnom Penh for further negotiations and government officials again described the UN as being at fault for delays. Government spokesperson Khieu Kanharith said “We requested they send a lawyer here a while ago, but they ignored that request. They really missed the boat on this”.123 CPP Senator Chhang Song added, “It was a very rude letter. We are not the best government in the world, and we know that. But instead of just criticizing us, why didn't they send somebody here to help us draft the law. They should have done that a long time ago”.124 Hun Sen further antagonised the UN by returning to another favoured theme, the betrayals of the past. He said of the UN in a speech, “I don’t trust you, because you used to allow the Khmer Rouge to sit at the United Nations”.125 He also called for the three Secretaries-General of the time to explain why they allowed the Khmer Rouge to occupy Cambodia’s seat at the UN after 1979.126
Further talks were held when Corell led a delegation to Phnom Penh in March 2000. Many of the issues under discussion were familiar. Corell said that the UN was willing to accept a majority of Cambodian judges and the supermajority rule if the Cambodians accepted that each Co-Prosecutor and Co-Investigating Judge could act independently of their national or international counterparts. He suggested that if they were not to be given the power to act independently then a dispute resolution panel could adjudicate instead. Such a panel would consist of three people: one person appointed by the Cambodian government, one by the Secretary-General, and one by the President of the International Court of Justice (or another impartial institution).127
The significance of another issue arose at this time: the relative status of the national law and the international agreement (which was also referred to at various times as the Memorandum of Understanding or the Articles of Cooperation). With the draft law going through the legislative process the government task force said it was not up to them to modify the law at this stage. They viewed the agreement as a document concerning how to implement the law and therefore the law should be adopted first. The UN, on the other hand, preferred that the normal procedure for international treaties be
123 Lor Chandara and Kelly McEvers, "Hun Sen Plans to Discuss Trial Plans With Annan," Cambodia Daily, 11 February 2000. 124 Anette Marcher, "PM-UNSG Talks Agree: More Talks," Phnom Penh Post, 18 February 2000. 125 "'I Don't Trust You,' Cambodia's Hun Sen Warns the UN," Agence France-Presse, 6 March 2000. 126 The Khmer Rouge’s occupation of Cambodia’s seat at the UN spanned the tenures of UN Secretaries-General Kurt Waldheim, Javier Pérez de Cuéllar, and Boutros Boutros-Ghali. 127 Letter from Hans Corell to Sok An, 7 July 2000, UN KRT documents. 109 followed where the international agreement was ratified by the national legislature. Corell added in a letter after his visit, “I must reiterate that a national parliament simply cannot unilaterally adopt legislation that is binding on the United Nations”.128 As was frequently the case, the issue stemmed from both legitimate misunderstandings of the other side’s position and concern for who was perceived to be in control of the trial.
Hans Corell requested that David Scheffer revisit Phnom Penh and when he did the parties moved closer to an agreement on a Pre-Trial Chamber that would resolve disputes.129 Scheffer had first proposed this style of dispute resolution mechanism to UN lawyers in January, where an “extraordinary session” of the court would be used.130 The Secretary-General wrote to Hun Sen in April proposing the model that would eventually be agreed to, with a majority of Cambodian judges and a supermajority vote required to block a prosecution or investigation.131 This model had been discussed by Scheffer and Sok An in April and upon its adoption Corell stressed that he wanted it to be made clear that the UN had made a major concession.132
However, having secured UN support for the model, Hun Sen was now backtracking, saying “In Cambodia now there is a growing current wishing to settle differences between Co-Investigating Judges or Co-Prosecutors by another formula different from the one we have been discussing”.133 He now advocated a Pre-Trial Chamber of two Cambodian judges and three internationals, which would require a supermajority (and therefore the assent of one of the Cambodian judges) in order to proceed with a prosecution or investigation. Although this model gave the international judges the majority, it also empowered the Cambodian judges to easily block a case that they, or the government, opposed. Hun Sen declared a week later that not only was there a “growing current” for an alternative dispute resolution mechanism but also for prosecutions to occur for crimes from 1970 to 1999. He also reiterated that he was not presently in a position to sign an agreement because to do so would involve the executive branch of government pressuring the legislature.134
Senator Kerry made another visit, in order to smooth over relations as well as to encourage the Cambodians to accept the UN’s proposals. Given the sensitivities of the
128 Ibid. 129 Scheffer, All the Missing Souls, 395. 130 Ibid., 393. 131 Letter from Kofi Annan to Hun Sen, 19 April 2000, UN KRT documents. 132 Scheffer, All the Missing Souls, 396-97. 133 Letter from Hun Sen to Kofi Annan, 10 February 2000, UN KRT documents. 134 Ibid. 110
UN, he stated repeatedly to the press, “I am not a negotiator”.135 Any further steps were hindered by what Scheffer later characterised as the “stubborn vanity” of both Kofi Annan and Hun Sen.136 Neither was prepared to initiate the next communication, particularly given the antagonistic statements that had been issued. The UN Secretariat expected a letter ruling out the extensions of the temporal jurisdiction beyond 1975-1979 and the Cambodians wanted acknowledgement of the discussions they had had with Kerry. The UN was distrustful after the “erratic behaviour” displayed, particularly by Hun Sen.137 Yet the Cambodians were also confused and irritated by the UN’s frequent return to issues they thought had been resolved by another mediator, such as Kerry or Scheffer.138 The government also communicated to the press that they were waiting to hear that the UN approved of the agreement negotiated by Kerry.139
In yet another finely honed compromise, Annan wrote that he was pleased to hear via Senator Kerry that the UN proposal had been accepted and he outlined the points of accord between the UN and Cambodia.140 They arranged for further in-person negotiations in July. These letters were far more conciliatory in tone but the government had made no moves towards what it insisted was the next step of the process: getting the law passed by the National Assembly.141 At the July 2000 meetings in Phnom Penh “tensions were palpable” but the UN and the government agreed on many measures that had been extensively discussed but not fully agreed to before.142 They accepted a majority of Cambodian judges, supermajority voting, and the model for the Pre-Trial Chamber. Although agreement was not reached on the appropriate personal jurisdiction, the conversations revolved around a shared attempt to find the correct formulation rather than a dispute, unlike so many other issues during the negotiations.143
Corell sent a UN commentary on the draft law to assist in its amendment to match the agreement they were negotiating. He reiterated the need for the law to match the agreement, complained that in the past “delays have been unjustly attributed to the United Nations”, and pleaded that future communication be “straightforward, candid
135 Transcripts of the Visiting U.S. Senator John Kerry, Cambodia, 28-29 April 2000, UN KRT documents. 136 Scheffer, All the Missing Souls, 399. 137 Ibid., 398. 138 Fawthrop and Jarvis, Getting Away with Genocide, 186. 139 Kelly McEvers and Pin Sisovann, "Way Clear for KR Draft Law, Envoy Says," Cambodia Daily, 20 May 2000. 140 Letter from Kofi Annan to Hun Sen, 19 April 2000, UN KRT documents. 141 Thet Sambath and Kelly McEvers, "PM, UN Letters Indicate Formal Nod Near," Cambodia Daily, 25 May 2000. 142 Fawthrop and Jarvis, Getting Away with Genocide, 176. 143 Letter from Hans Corell to Sok An, 7 July 2000, UN KRT documents; ibid. 111 and efficient”.144 The future of the process continued to rest with the National Assembly. In briefing member states, Corell said it was now for the UN to respect the national process. On leaving Cambodia, he warned the press that if the law passed did not match the agreement, “The [UN] Secretary-General would probably draw the conclusion that would be the end of the story”.145 Annan also warned publicly that future UN involvement was only possible if the agreement “is scrupulously reflected in the bill by the parliament”.146
The UN now waited and observed the progress of the law through the legislature. The Legislative Commission, which would be responsible for making the amendments to the draft law, was unable to act as the government had neither briefed them on the agreement with the UN nor provided them with a copy.147 Beginning in July 2000, Cambodia experienced its worst flooding in forty years, which killed 347 people, displaced a third of the rural population, and destroyed roads and rice crops.148 This emergency delayed a good deal of government work beyond the issue of the tribunal. However, there were also political reasons for the delay. It was reported that work was being done to bring the rest of the CPP on board with the agreement that had been reached. One parliamentarian told the press, “we were not happy with this draft”, an unusual breach of party discipline.149 Even once the party was in agreement, government spokesperson Khieu Kanharith said there was a discussion of the appropriate timing, with some members wanting to have the trial closer to the 2003 election so it could be used to promote the party.150 The impending visit of the Chinese president also created reluctance to act. The spokesperson for the Chinese Foreign Ministry stated that “It should be up to the Cambodian people to decide without foreign interference…. China has not and will never apply pressure on the Cambodian government over this question”.151 Despite these necessary assertions, the Cambodian government was reluctant to move forward on an issue that could be perceived as an insult in the lead-up
144 Ibid. 145 Kelly McEvers, "Legislative Stalling Could Kill a Trial Deal," Cambodia Daily, 5 July 2000. 146 Brian Mockenhaupt, "Rights Groups Protest KR Tribunal Secrecy," Cambodia Daily, 7 July 2000. 147 Kelly McEvers and Thet Sambath, "KR Draft in Doubt as MPs Take Break," Cambodia Daily, 24 August 2000. 148 "Cambodian Floods Put Damper on King Sihanouk's Birthday," Agence France-Presse, 31 October 2000; Fawthrop and Jarvis, Getting Away with Genocide, 177. 149 Kelly McEvers and Thet Sambath, "Tribunal Draft Revealing Cracks in CPP Unity," Cambodia Daily, 18 August 2000. 150 Anette Marcher and Vong Sokheng, "KR Tribunal Drowing in Smokescreens and Politics," Phnom Penh Post, 15 September 2000. 151 Fawthrop and Jarvis, Getting Away with Genocide, 178. 112 to an important visit from a major donor, since the Chinese government had long- standing fears about the implications of a Khmer Rouge trial.
Public statements by political leaders added confusion to the situation. King Sihanouk stated, through his son Norodom Ranariddh, that a trial should be delayed since the “priority at this moment is peace and stability”.152 Hun Sen exacerbated an existing UN concern over the fate of Ieng Sary and his amnesty. Hun Sen used a public speech to laud the significant contribution Ieng Sary had made to reconciliation. He said “Ieng Sary showed his good heart by bringing down the Khmer Rouge” and asked “How can a person be convicted twice for the same crime?”153 He also portrayed the issue of a Khmer Rouge tribunal as in the hands of the National Assembly despite the Legislative Commission still not having access to the agreement, months after the UN left.154 Another visit by Kerry secured an agreed schedule between Sok An, Hun Sen, and Norodom Ranariddh, in his capacity as President of the National Assembly, to pass the law during December 2000.155
Sok An met the Legislative Commission in late November and the amended law was sent to the National Assembly soon afterwards. During this period Hun Sen restated his opposition to the prosecution of Ieng Sary. In an interview with Japanese television he stated that he was not defending Ieng Sary and that the issue of his prosecution was up to the court, whilst also saying "If there is any attempt to prosecute Ieng Sary it may lead to war again, that is not a good intention. It is a betrayal of peace and national reconciliation".156 The National Assembly’s debate over the law was delayed in deference to passing the law governing the national budget but the tribunal debate began, almost on schedule, on 29 December 2000.157
The law was then unanimously passed on 2 January 2001, the first time since 1993 that the National Assembly had voted unanimously on any bill.158 However, the content of the law caused disquiet at the UN. Corell wrote to Sok An expressing a number of concerns with the law as passed. Amongst his concerns were that the law did not specify that reserve judges for international positions also had to be international, that it removed
152 "Cambodian King Favors Delay in Khmer Rouge Trial," Kyodo News, 17 October 2000. 153 Thet Sambath and Gina Chon, "Hun Sen Heaps Praise on Ieng Sary," Cambodia Daily, 25 September 2000. 154 Ham Samnang, "PM Wants KR Tribunal as Soon as Possible," Cambodia Daily, 19 October 2000. 155 Marcher and Sokheng, "Kerry Visit Raises KR Tribunal Hopes," 24 November 2000. 156 "Cambodian PM Stands Behind Pol Pot Lieutenant," 30 November 2000. 157 Pin Sisovann, "Assembly Begins Debate on KR Trial Law," Cambodia Daily, 30 December 2000. 158 Lor Chandara and Gina Chon, "KR Tribunal Law Approved," Cambodia Daily, 3 January 2001; Fawthrop and Jarvis, Getting Away with Genocide, 181. 113 provisions allowing defendants the rights to counsel of their own choosing, and that it removed the clause stating that previous amnesties would not be a bar to prosecution.159
The law had now moved to the Senate and in the course of the debate some senators sought access to this letter from Corell, concerned that the law would not meet with UN approval. Sok An refused to provide access to the letter and insisted the content of the law would not be changed.160 The Senate debate also considered the prosecution of Ieng Sary, particularly in light of Hun Sen’s warning that if Ieng Sary was brought before the tribunal “there will be war again in Cambodia”.161 Nonetheless, the law was again passed unanimously by those present and forwarded to the Constitutional Council. 162
Although the law easily passed the National Assembly and the Senate (albeit after a delay), it faltered at the next stage of approval. The Constitutional Council found that Article 3 and its reference to the 1956 penal code did not explicitly rule out the death penalty, which is forbidden under Cambodia’s 1993 constitution. Despite a later article of the law stating “all penalties shall be limited to imprisonment”, the Constitutional Council ruled that the law must be returned to the National Assembly to be amended.163 A UN spokesperson expressed disappointment at the delay, which Corell later called “completely useless”, but welcomed the opportunity to bring other aspects of the law into conformity with the UN agreement.164 However, Hun Sen rejected making any further changes to the law.165
Although the change was a simple one, the decision by the Constitutional Council caused a loss of momentum. Internationally, Chinese opposition continued to pose a problem and with the start of the presidency of George W. Bush there was no longer the counterweight of significant U.S. diplomatic activity in favour of a trial.166 Domestically, members of the party had to be re-convinced to back the law, and it was not until after
159 Puy Kea, "U.N. Unhappy With Cambodia's Proposed Treatment of Ieng Sary," Kyodo News, 13 January 2001; Ana Nov, "Council Begins KR Discussion," Cambodia Daily, 2 February 2001. 160 Thet Sambath and Jody McPhilips, "Senate Comes of Age in Passing KR Draft," Cambodia Daily, 17 January 2001. 161 Matt McKinney, "Hun Sen: Trying Ieng Sary Would Mean War," Cambodia Daily, 11 January 2001; Kay Kimsong and Gina Chon, "Senators Begin Approval of KR Draft Law," Cambodia Daily, 12 January 2001. 162 Kay Kimsong and Thet Sambath, "Senate Passes KR Draft Law Unanimously," Cambodia Daily, 16 January 2001. 163 Phelim Kyne and Vong Sokheng, "KR Law Moves But Fine Print Threatens," Phnom Penh Post, 16 February 2001. 164 Lor Chandara and Matt Reed, "Trial Delay Disappoints UN Officials," Cambodia Daily, 26 February 2001; Fawthrop and Jarvis, Getting Away with Genocide, 182. 165 Pin Sisovann and Bill Myers, "Hun Sen Rejects UN Advice on KR Draft Law," Cambodia Daily, 24 February 2001. 166 Fawthrop and Jarvis, Getting Away with Genocide, 183-84. 114 the CPP Plenum in July 2001 that the law was presented to the National Assembly again.167
Before the law re-entered the legislative process the UN and the Cambodian government exchanged a further round of antagonistic messages in the press. Hun Sen said a tribunal could be established quickly as long as there was no “further disturbance from the UN”.168 Annan expressed concern that the UN had received no information on the progress of the tribunal issue in the last six months and later reminded the government that the tribunal could not be created until Cambodia signed a Memorandum of Understanding with the UN.169 Hun Sen reacted angrily, warning Annan “to be careful with the sovereignty and the independence of a nation”, further adding “it looks like the UN is forcing Cambodia to do whatever they want” and “I am afraid of nobody”.170 Ranariddh also reacted in defence of the legislature: "I represent the National Assembly and when the King signs the (Khmer Rouge) law it must be used, even if the United Nations are not satisfied with it. Whether the U.N. accepts this law or not is their problem”.171 Despite the delays, once the revised law was introduced at the National Assembly in July it was passed speedily and signed by the King on 10 August 2001.
The UN Secretariat did not immediately comment on the passage of the law as they waited for an official translation.172 With the national process now complete, Cambodian officials focussed on their position that the law took precedence over any agreement with the UN. Hun Sen said “I was elected by the assembly, so I cannot do anything against the law. Cambodian negotiators must use the law…and no one can go past one line or one word written in the law”.173 In October 2001 Corell sent a letter to Sok An expressing his regret over the delays in adopting the law and outlining eleven points of concern with the text as passed.174 These concerns ranged from issues relating to amnesties and access to defence counsel to the inclusion of Russian as an official language of the court.
In his response, over a month later, Sok An did not directly address these points of concern. Instead, he noted the “sharp tone and comments” of Corell’s letter.175 He
167 Ibid., 183. 168 "Hun Sen: KR Could Go on Trial by September," Cambodia Daily, 4 May 2001. 169 Thet Sambath, "Annan Decries KR Law Delay," Cambodia Daily, 24 May 2001. 170 Chris Decherd, "Cambodia PM Rejects UN Demand," Associated Press, 29 June 2001. 171 "Cambodia Ranariddh Adds to UN Khmer Rouge Trial Row," Reuters, 30 June 2001. 172 Samnang Ham and Matt Reed, "PM: Changes in KR Law Not Possible," Cambodia Daily, 15 August 2001. 173 Ibid. 174 Letter from Hans Corell to Sok An, 10 October 2001, UN KRT documents. 175 Letter from Sok An to Hans Corell, 23 November 2001, UN KRT documents. 115 objected to Corell’s “blurring of the distinction between the nature and purpose of the Law and the Articles of Cooperation” and stated that it was his view that it was for the agreement to “determine the modalities of cooperation” between the government and the UN in implementing the law. Although some discussion of outstanding issues subsequently occurred, Corell’s position was that he was waiting for a detailed response to the eleven points he had raised.176 Whilst a Cambodian official told a reporter that a second request had been sent for Corell to come to Phnom Penh to sign an agreement, Corell made clear to Sok An that any such visit must be preceded by the government’s response to the UN’s concerns.177 Sok An wrote such a response on 22 January 2002. In this letter he regarded none of the issues as insurmountable, explaining the reasoning behind the language of the law or the existing rights guaranteed by Cambodia law, and expressing his opinion that these outstanding issues could be covered by the agreement.178
The UN Withdraws
The UN Secretariat had a different view of the magnitude of the differences between the two positions. On 8 February 2002 Hans Corell announced that the UN was withdrawing from negotiations. This decision surprised the Cambodian government and other UN member states, whose ambassadors were given less than an hour’s notice of the Secretariat’s decision before the announcement was made.179 In justifying this decision, Corell laid out the history of the negotiations, expressed his concern with the lack of urgency shown by the Cambodian government, and stated that negotiations had gone on much longer than expected.180 He reiterated his frustration that on frequent occasions while his office was waiting for the government to act, Cambodian officials were making statements blaming the UN for delays.181
Throughout the negotiation process a wide variety of issues divided the Cambodian government from the UN Secretariat. Some were merely technical in nature but those that proved most problematic always related to the fundamental issue of control of the mechanism. This issue had been present in negotiating the number of international judges and what voting rules would be used, and in early 2002 it surfaced as the relative
176 Letter from Hans Corell to Sok An, 10 October 2001, UN KRT documents; Letter from Hans Corell to Sok An, 8 February 2002, UN KRT documents. 177 Letter from Hans Corell to Sok An, 8 February 2002, UN KRT documents. 178 Letter from Sok An to Hans Corell, 22 January 2002, UN KRT documents. 179 Fawthrop and Jarvis, Getting Away with Genocide, 189-90. 180 Letter from Hans Corell to Sok An, 8 February 2002, UN KRT documents. 181 Ibid. 116 status of the international agreement vis a vis the national law. At the press briefing announcing the UN’s withdrawal, following a journalist’s comment, “So it’s not so much the specific points of the agreement that you take issue with, it’s more of the controlling authority here”, Corell simply replied “Exactly”.182
Representatives of the U.S. and the EU urged the Secretariat to re-engage and India later offered to send a judge to assist with a Khmer Rouge tribunal if the UN was no longer involved in the process.183 Far from laying bare the Cambodian government’s recalcitrance in the negotiation process (as appears to have been part of the Secretariat’s intention) the UN’s decision allowed the Cambodian government to portray itself as more committed to the cause of justice than the UN; waiting for, and working towards, the Secretariat’s re-engagement.184 Despite the criticism of member states, UN Secretary- General Kofi Annan stated that he stood by his decision for the UN to withdraw.185 He told ambassadors who approached him about reconsidering the decision that “it would be more effective if they made their demarche in Phnom Penh and got Prime Minister Hun Sen to change his position”.186
In response, the government’s Task Force on the Khmer Rouge Trial released a statement criticising the UN for misrepresenting the government’s position and for not identifying any specific aspects of the Cambodian law that failed to meet international standards.187 The UN’s decision also allowed Cambodian officials to draw attention to the Khmer Rouge’s continued presence at the UN in the 1980s. Sok An told an international forum, “We felt that it was important for the international community to share in carrying out this task in order to clear its own record on previous support for the Khmer Rouge”.188 Hun Sen stated, "it is an intentional political trick...the United Nations has a history of protecting the Khmer Rouge," and alluded to proceeding without the UN by saying "The
182 "Daily Press Briefing by the Office of the Spokesman for the Secretary-General", 8 February 2002, reproduced in Ben Kiernan, "Cambodia and the United Nations - Legal Documents," Critical Asian Studies 34, no. 4 (2002): 618. 183 Matt Reed and Thet Sambath, "UN-Backed KR Trial Still A Possibility," Cambodia Daily, 11 Febraury 2002; Lor Chandara and Thet Sambath, "Lawmakers Seek Explanation for KR Delay," Cambodia Daily, 22 February 2002; David Kihara and Phann Ana, "Indian Leader Vows Support For KR Trial," Cambodia Daily, 10 April 2002. 184 Lor Chandara and Thet Sambath, "Leaders Give Contrasting Views on UN," Cambodia Daily, 12 February 2002. 185 David Kihara and Thet Sambath, "Sok An: UN Gave Up Too Soon on Trial," Cambodia Daily, 13 February 2002. 186 "Annan Firm on UN Refusal to Back Khmer Rouge Trial," Agence France-Presse, 13 March 2002. 187 Statement from the Royal Government of Cambodia Task Force on the Khmer Rouge Trial, 15 March 2002, UN KRT documents. 188 Molly Ball, "Sok An Says World Has Duty to Help in Trial of KR Leaders," Cambodia Daily, 3 May 2002. 117 ball is now under the U.N.'s foot, but don't forget, Hun Sen has another ball".189 However, the government knew it could secure the most international legitimacy from a process supported by the UN and that, at least in the short term, it was best to be seen as open to further talks. Speaking at a donor aid conference Hun Sen struck a conciliatory tone, saying his government was “firmly committed” to a tribunal and suggesting that discreet negotiation had already started.190
Communication between Kofi Annan and Hun Sen recommenced in June after the intervention of a senior Japanese official.191 Hun Sen, for the first time, indicated that the law passed by the National Assembly in 2001 could be amended in light of UN concerns but the Secretariat maintained its concerns that minimum standards would not be met.192 The Secretary-General determined that in order for his offices to re-open negotiations with the Cambodian government he would need a clear mandate in the form of a resolution from either the UN General Assembly or the UN Security Council.193
A group of interested states undertook to draft such a resolution in October and November. Australia reversed its willingness to sponsor the resolution when the Cambodian delegation intimated that whilst they supported the resolution’s content they were not prepared to co-sponsor it.194 France and Japan co-sponsored the resolution instead and it was passed by the UN General Assembly in December 2002 with 150 votes in favour, none against, and 30 abstentions.195 The resolution called for the Secretary- General to resume negotiations and, most significantly, that they should be “based on previous negotiations on the establishment of the Extraordinary Chambers”.196 Accordingly, the Secretary-General wrote to Hun Sen, inviting a Cambodian delegation to New York in January 2003 for preliminary discussions.
Despite the renewed impetus of the UN General Assembly’s resolution, these discussions were tense. The Cambodian officials viewed the resolution as endorsing the law they had
189 "Cambodia's Hun Sen Says UN Blocking Trial Plan," Reuters, 14 May 2002. 190 Ker Munthit, "Cambodia's Leader Tells International Donors He's Still Committed to Khmer Rouge Tribunal," Associated Press, 20 June 2002. 191 Fawthrop and Jarvis, Getting Away with Genocide, 193. 192 Thet Sambath and Matt McKinney, "Hun Sen Suggests KR Law Amendments," Cambodia Daily, 3 July 2002; Kevin Doyle, "Reported UN Snub on KR Shocks Gov't," Cambodia Daily, 5 July 2002. 193 Matt McKinney and Lor Chandara, "Annan Letter Renews Hope For KR Talks," Cambodia Daily, 22 August 2002. 194 Fawthrop and Jarvis, Getting Away with Genocide, 195. 195 United Nations General Assembly, "Resolution Adopted by the General Assembly: Khmer Rouge Trials," A/RES/57/228, 18 December 2002; Bill Bainbridge, "UN Votes for KR Talks," Phnom Penh Post, 20 December 2002. 196 United Nations General Assembly, "Resolution Adopted by the General Assembly: Khmer Rouge Trials," 18 December 2002. 118 passed. However, the Secretariat used the resolution’s call to ensure “the impartiality, independence and credibility of the process”, and the experience of establishing the Special Court for Sierra Leone, to justify returning to its earlier plans for an internationally dominated court.197 In the non-paper handed to the Cambodian delegation in New York, the Secretariat proposed a majority of international judges at the Trial Court and Appellate Court, a sole international prosecutor and a sole international investigating judge, thereby eliminating the need for a Pre-Trial Chamber.198 Helen Jarvis, who was in New York as part of the Cambodian task force, called this a “breathtaking move”. She further wrote that “the Cambodian delegation was exasperated by this U-turn” and that they “certainly felt like walking out in disgust, but knew that there was too much at stake”.199
Since the two sides had profoundly different interpretations of the General Assembly’s resolution, and thus differed on the basis for their discussions, they agreed to focus on issues that could be resolved. The negotiation teams set aside issues related to the fundamental structure of the court and focussed on the other articles of the agreement (relating to technical issues, financial arrangements, rights of the accused, and the court’s jurisdiction) where there was a chance of consensus.200 The Secretary-General then imposed a new condition before he would send a team to Phnom Penh. He required a written response from Hun Sen confirming his agreement to these articles as negotiated in New York. Such a response was not forthcoming.201 However, since key member states objected to this pre-condition and a ninety-day reporting timeline set by the General Assembly was approaching, Annan agreed to send a team to Phnom Penh in March 2003.
On the eve of the UN team’s arrival, Hun Sen returned to a favoured theme, saying “When we defeated Pol Pot, the UN … punished us and supported Pol Pot, but today the UN comes to us to negotiate about a trial for Pol Pot”.202 One of the most divisive issues, the status of the agreement and the law, was resolved in a mutually acceptable fashion
197 Ibid. 198 Non-Paper: Khmer Rouge Trials, 3 January 2003, UN KRT documents. 199 Fawthrop and Jarvis, Getting Away with Genocide, 199. 200 Ibid. 201 Letter from Hans Corell to Sok An, 17 January 2003, UN KRT documents; Letter from Hun Sen to Kofi Annan, 31 January 2003, UN KRT documents. 202 Molly Ball and Thet Sambath, "UN Arriving Today for KR Trial Talks," Cambodia Daily, 13 March 2003. 119 by reference to the Vienna Convention of the Law of the Treaties.203 All issues relating to the structure of the court were resolved along the same lines as had been negotiated in the past. There were to be Co-Prosecutors and Co-Investigating Judges, and a Pre-Trial Chamber that would adjudicate disputes. Each level of the court structure would have a majority of Cambodian judges and a supermajority voting system. What was different this time around was the Secretariat’s acquiescence to a model that it remained convinced would not meet international standards because of the dominant role given to the Cambodian judiciary. Hans Corell and Sok An initialled an agreement on 17 March 2003 which required approval by the UN General Assembly and the Cambodian National Assembly.
Corell made his position clear in several statements about his role in these final negotiations. On his arrival in Phnom Penh he stated, “it’s not a question of what [commitment] I have. I’m the legal counsel of the UN and I’m following the instructions given by the Secretary-General. What matters is what the General Assembly says”.204 He told local NGOs more bluntly, “this time my hands are tied”.205 Following the initialling of an agreement he again sought to distance himself from the final result. He stated “It's not a question if I'm satisfied or not. I'm a professional, I'm an international civil servant ... it is my task to do the best I can”.206 He criticised the complexity of the system they had agreed to, “I certainly did not invent it”, and called the supermajority voting rules “cumbersome”.207 Nonetheless an agreement had been reached. It was six years after the original request for assistance had been sent.
Conclusions
The negotiations that created the Extraordinary Chambers in the Courts of Cambodia involved a tortuous series of meetings, memoranda, drafts, and confrontations. There was little sense in which the Cambodian government and the UN Secretariat were working towards a common goal. Instead, the negotiations were a conflict between two sides characterised by distrust, antagonistic messages delivered through the press, and
203 Particular reference was made to the articles of this convention which state that treaties are binding and that domestic laws may not be used to justify breaching a treaty. Fawthrop and Jarvis, Getting Away with Genocide, 202. 204 Bill Bainbridge, "UN's Corell Here For 'Last Chance' KR Talks," Phnom Penh Post, 14 March 2003. 205 Fawthrop and Jarvis, Getting Away with Genocide, 202. 206 Bill Bainbridge and Vong Sokheng, "KR Tribunal: Corell Meets the Press," Phnom Penh Post, 28 March 2003. 207 Ibid. 120 competing agendas. Each side, the UN Secretariat and the Cambodian government, sought to ensure that they controlled the conduct of any transitional justice mechanism in Cambodia, and therefore could shape the outcomes it reached. However, neither party could frame the issue so explicitly. Instead, the Cambodian government referenced defending its sovereignty and the domestic nature of the crimes: crimes committed in Cambodian territory, by Cambodian perpetrators, against Cambodian victims. These statements acted as justification for the government’s desire to control the mechanism and prevent any aspects of a trial that could threaten its hold on political power. The UN talked about ensuring the independence of the mechanism and ensuring that international standards were met, whilst also being concerned about protecting the organisation’s reputation and guaranteeing an outcome they assumed an independent court would have: reasoned decisions resulting in convictions.
Through a Khmer Rouge tribunal, the Cambodian government sought the international legitimacy it had been denied throughout the 1980s. However, it was also suspicious of the intentions behind international involvement and unwilling to jeopardise its domestic power in search of legitimacy. The UN, even after the agreement was reached, had concerns about the prominent role of Cambodian judges and personnel at the court and the consequent ability of the government to influence the court. Lacking any means to have an imminent impact on the impartiality of the Cambodian judiciary, the UN instead sought to use rules and procedures at the ECCC to guide the outcome and to limit the scope of the Cambodian judges’ influence. That such measures were necessary, and that the negotiations were dominated by issues of power and control, were indications of how the ECCC would proceed and the outcomes it would produce.
121
Chapter Four – The ECCC in Action
Reaching an agreement on the structure of the ECCC had been a long and arduous process, and its operation proved to be even more so. When the agreement was signed, the UN envisaged a process that would last for three years and cost US$56 million. Thirteen years and US$260 million later, the court’s work is ongoing. In this chapter I examine the establishment and conduct of the ECCC since 2003. I focus on politically motivated or politically consequential decisions rather than legal outcomes, that is, those decisions which affect the Cambodian government’s hold on power. I pay particular attention to the ways procedure has played out at the ECCC: when the established rules and procedures have been adhered to, when they have been circumvented, and when the language of procedure has been invoked. There is a two-sided relationship between ideas of transitional justice and procedure. The phrase transitional justice conveys that it is law for an exceptional period. Accordingly, the mandates and procedures of any transitional justice mechanism are designed for a particular political context. However, once the mechanism has been established, a legalist’s strict adherence to procedure is presumed to take over, particularly since the development of the rule of law is often a stated goal of transitional justice.
I first describe the protracted process of establishing the ECCC and the problems of corruption that were encountered before the trials began. I then focus on each of the ECCC’s cases in turn. Case 001 was largely uncontroversial and a relatively easy first success for the court. Case 002 was originally against four defendants but one was found mentally unfit to stand trial and released and another died in March 2013. The case against the remaining two defendants is ongoing. This case has faced many more difficulties than Case 001 due to both the complexity of the crimes alleged and government interference in aspects of the case. However, government interference in Case 002 pales in comparison with that encountered in Cases 003 and 004. These cases concern an additional four suspects who are under investigation at the time of writing, but whose prosecution the government has consistently opposed and emphatically warned against, citing the risk of a new civil war.
Patterns that were established during the negotiation period recurred during the establishment and conduct of the ECCC. The conflicts that existed between the UN Secretariat and the Cambodian government persisted. They were particularly evident 122 around the issue of corruption but these conflicts also transferred to the national and international judges and the decisions they were making. Both the national and international sides of the court have placed great rhetorical importance on procedure, and yet arrived at very different conclusions and desired actions. Even when decisions are driven by concerns of substantive justice or political impact they are wrapped in the cloak of procedure. This feature is not unique to the ECCC but the strong reliance on the language of procedure coupled with limited respect for following procedure is an important feature of illiberal transitional justice.
Approving the Agreement
The March 2003 initialling of an agreement between the Cambodian government and the United Nations Secretariat was an important step in the establishment of the ECCC and cemented the structure of the tribunal. Nonetheless, significant work remained to be done before any trials could begin. The long and often bitter negotiation process had left lingering concerns for both the government and the UN about working to build a mutually acceptable outcome. The next steps were for the agreement to be approved by the United Nations General Assembly and for the existing tribunal law to be amended and approved by the Cambodian National Assembly.
The UN Secretary-General, Kofi Annan, reported to the General Assembly on the agreement in a strongly pessimistic tone. He neither welcomed the agreement nor recommended its endorsement; the most positive comment he made was that it was “a considerable improvement” over the previous drafts.1 He laid out the “protracted and, at times, difficult” negotiation process and chastised the Cambodian government for its “lack of urgency”, “lack of commitment”, and the “precarious state of the judiciary in Cambodia”.2 He noted his continuing concerns that international standards would not be met, and reminded that “any deviation by the Government from the obligations undertaken could lead to the United Nations withdrawing its cooperation and assistance from the process”.3 Deputy Prime Minister Sok An issued a statement on behalf of the Cambodian government task force objecting to the tone of the Secretary-General’s report, documenting the progress Cambodia’s judiciary had made since the destruction of the Khmer Rouge regime, and adding “we believe that many Member States may well
1 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," A/57/769, 31 March 2003, 1. 2 Ibid., 6, 11. 3 Ibid., 1. 123 share Cambodia’s perspective that international standards do not have to mean international control, which seems to be the view of the UN Secretariat”.4
Despite the Secretary-General’s negative report, the General Assembly approved the agreement in May 2003 and voted to fund the tribunal via voluntary contributions, rather than by means of the assessed contributions that Annan had recommended.5 A signing ceremony was held in June in Phnom Penh’s Chaktomuk Theatre. Sok An linked the ECCC with the People’s Revolutionary Tribunal, which he had attended in 1979, saying, “In this very room we held the world’s first genocide trial”.6 He also noted that in the time that had elapsed since then “geopolitical complications stood in the way of a proper international recognition of the crimes committed”, further reminding international actors of the debt they owed for the 1980s.7 UN negotiator Hans Corell, for his part, noted that there was much work still to be done before trials could commence, adding pointedly that “if the political will is there, these steps can be taken quickly”.8
The necessary steps to establish the ECCC soon fell victim to the Cambodian political process and to financial considerations. Failure to achieve a quorum of members at the National Assembly, who were already out campaigning, delayed passage of the necessary legislation until after the July 2003 national elections, which resulted in a political standoff that lasted nearly a year.9 By the time the National Assembly had amended the 2001 ECCC law and ratified the agreement with the UN in October 2004, the Secretary- General had imposed a new condition. Following difficulty fundraising for the Special Court for Sierra Leone and the General Assembly’s determination to fund the ECCC through voluntary contributions, the Secretary-General insisted that the tribunal would not be established until he had received pledges to cover the cost of three years and had
4 Sok An, Statement by the Cambodian Government Task Force to the Member States of the United Nations Regarding the Draft Agreement on Khmer Rouge Trials, 17 April 2003, UN KRT documents. 5 United Nations General Assembly, "Resolution Adopted by the General Assembly: Khmer Rouge Trials," A/RES/57/228B, 22 May 2003. 6 Remarks by HE Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committeed during the Period of Democratic Kampuchea, 6 June 2003, UN KRT documents; Tom Fawthrop and Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal (Sydney: University of New South Wales Press, 2005), 44. 7 Remarks by HE Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committeed during the Period of Democratic Kampuchea, 6 June 2003, UN KRT documents. 8 Statement by Mr. Hans Corell on the Occasion of the Signature of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committeed during the Period of Democratic Kampuchea, 6 June 2003, UN KRT documents. 9 Fawthrop and Jarvis, Getting Away with Genocide, 206. 124 actually received the money to cover the first year of operations.10 Whilst fundraising efforts continued in order to meet this stipulation, significant preparatory work was undertaken relating to security arrangements, the translation of relevant laws into Khmer, and training programs for Cambodian judges.11
The most significant decision taken during this time was the selection of the court’s location, which was another marker of control. Initially the government and the UN had discussed using Chaktomuk Theatre, which is located in the centre of Phnom Penh.12 However, during a UN technical team’s visit in December 2004 the government suggested a new venue: the recently completed Royal Cambodian Armed Forces High Command Headquarters, sixteen kilometres west of the capital, beyond the airport.13 NGO groups raised concerns about this venue on a number of grounds: UN money would be used to improve a military compound rather than to provide lasting judicial infrastructure, the site lacked the appearance of independence, and there would be less local participation in the trial because of the distance of the site from the city centre and public fear of the armed forces.14 The government task force argued that this new location would create less disruption to central Phnom Penh and was already better equipped to handle a significant media presence and provide adequate office space.15 In July 2005 the UN agreed to the new location on the conditions that it was entirely fenced off from the military facility, that the court had a separate entrance, and that arrangements were made for public transport from central Phnom Penh.16 Although this new location for the court had some practical advantages it was a symbolic victory for the government and served to remove the ECCC from the easy access, and implied importance, that central Phnom Penh would have provided.
10 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," A/58/617, 3 December 2003; United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," A/59/432, 12 October 2004. 11 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," 12 October 2004; Janna Hamilton, "Money Woes Take Spotlight, But Flurry of Work Ongoing in Preparation of KR Trial," Phnom Penh Post, 8 April 2005. 12 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," 12 October 2004. 13 Janna Hamilton, "New Venue Proposed for KR Tribunal is Superior, But Fears of a Military Presence Remain Pervasive," Phnom Penh Post, 22 April 2005. 14 Open Society Justice Initiative, Memorandum: Inappropriate Military Venue for Khmer Rouge Tribunal, 1 February 2005, UN KRT documents. 15 Hamilton, "New Venue Proposed for KRT," 22 April 2005. 16 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," A/60/565, 25 November 2005. Once this location was chosen the boundary of the Municipality of Phnom Penh had to be extended to encompass the court since it lay outside of Phnom Penh in Kandal province and the ECCC law called for the court to be located in Phnom Penh; "Royal Decree on Border Modification Between Municipality of Phnom Penh and Kandal Province," NS/RKT/0706/329, 29 July 2006. 125
Raising the necessary funding for the court proved challenging. At a pledging ceremony in March 2005 international donors pledged US$34.8 million of the US$43 million required for the international contributions, with Japan pledging more than half of the total.17 The international funding shortfall was supplemented by funds remaining in an UNTAC-era trust fund which would be administered by the United Nations Development Programme (UNDP).18 The Cambodian government was also seeking bilateral contributions to cover its portion of the funding, having announced it could only offer US$1.5 million from the national budget out of its expected contribution of US$13.3 million.19 The government benefitted just as much from the idea of a trial as from the reality so there was little impetus to quickly fund the court. As I discuss in more detail in the next chapter, international legitimacy was a primary motivation for the government. Despite the difficulties encountered during the negotiation process, the government was able to use the negotiations as evidence of its commitment to justice. Although the government had negotiated as much control of the mechanism as possible, the reality of a trial (and particularly the international participation) posed greater risks than the negotiations had but with few additional benefits. The limited amount of money the Cambodian government was willing to contribute may have been a tactic to delay the formation of the court further but it also reflected a determination that if other countries wanted such a court they could pay for it.20 On 28 April 2005 the Secretary- General wrote to Hun Sen that sufficient funds had been raised, the legal requirements from the UN side had been met, and the agreement entered into force the following day, more than two years after it had been signed.21
Over the next twelve months further preparatory work was done, the court premises were handed over from the armed forces to the task force for the Khmer Rouge tribunal, and nominees were sought for international judicial positions. On 3 July 2006 twenty- seven Cambodian and international jurists were sworn in at the Royal Palace.22 Given the
17 Hamilton, "Money Woes Take Spotlight," 8 April 2005; Janna Hamilton, "UN Gives Green Light to Trial, Despite Lack of Money," Phnom Penh Post, 6 May 2005. For a broader discussion of why states fund transitional justice mechanisms see, Steven D. Roper and Lilian A. Barria, "Gatekeeping versus Allocating in Foreign Assistance: Donor Motivations and Contributions to War Crimes Tribunals," Journal of Conflict Resolution 51, no. 2 (2007): 285-304. 18 United Nations Development Program, "Special Audit: Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia (ECCC)," Report No. RCM0172, 4 June 2007, 8. 19 "More Funds Needed," Phnom Penh Post, 3 June 2005. 20 Laura McGrew, "Re-establishing Legitimacy through the Extraordinary Chambers in the Courts of Cambodia," in Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society, ed. Joakim Öjendal and Mona Lilja (Copenhagen: NIAS Press, 2009), 279. 21 Hamilton, "UN Gives Green Light," 6 May 2005. 22 "Judges Sworn in to Cambodia's Khmer Rouge Tribunal," Agence France Presse, 3 July 2006. 126 state of the Cambodian judiciary, most senior judges were trained in the communist system during the 1980s and were entrenched in the dominant Cambodian People’s Party (CPP). The calibre and impartiality of the Cambodian judges chosen to serve at the ECCC was therefore questioned. These concerns would later manifest at the ECCC in the form of disqualification motions filed by defence lawyers. The same month as the judges were sworn in, the consequences of a drawn-out process were underscored by the death in custody of Ta Mok, a Khmer Rouge military commander and the last holdout amongst the Khmer Rouge leadership in the late 1990s. He had been detained by the government since 1999 and was expected to be a defendant before the ECCC.23
The next obstacle in establishing the ECCC was to draw up internal rules for the court’s operation. National and international judges met in a plenary session in November 2006. Agreeing to a set of internal rules in the six days allotted proved to be overly optimistic. At this stage the disputes between the UN Secretariat and the Cambodian government for control of the mechanism resurfaced as disagreements between the international and national judges. Disagreements over the internal rules were the first of many times the judges split along national and international lines. Cambodian judges sought to remain as close as possible to the domestic system, as the ECCC law foresaw, but doing so was challenging since Cambodia did not have an official Code of Criminal Procedure until August 2007 and the international judges saw the need for substantial changes in order to adhere to international fair trial standards.24
During discussions the Cambodian judges had sought to significantly alter the balance of the Pre-Trial Chamber as a dispute resolution mechanism. As it had been negotiated by the UN and the government, the Pre-Trial Chamber would need to reach a supermajority of four out of five judges in order to block an action. At the plenary session Cambodian judges proposed to reverse the requirement, suggesting instead that if a case was disputed the person under investigation could apply to the Pre-Trial Chamber and the case would not proceed without a supermajority. This measure would have given the Cambodian judges the power to prevent an investigation or prosecution, a power that UN negotiators had strongly opposed.25 Although this measure was dropped, other issues
23 Charles McDermid, "Headaches for Khmer Rouge Trials," Phnom Penh Post, 28 July 2006. 24 Anne Heindel, "Overview of the Extraordinary Chambers," in On Trial: The Khmer Rouge Accountability Process, ed. John D. Ciorciari and Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009), 112. 25 John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor: University of Michigan Press, 2014), 64. 127 were not resolved, including the accreditation of foreign defence lawyers and how to integrate international standards into ECCC procedures.
The most difficult and enduring of these issues related to foreign defence lawyers and the role of the Bar Association of the Kingdom of Cambodia (BAKC), which is responsible for defending the interests of Cambodian lawyers. The Bar Association was particularly vocal during these discussions, insisting that since the ECCC was located in the Cambodian system the court did not need a new set of rules. The BAKC had been embroiled in an extensive dispute over its presidency since late 2004 when Hun Sen was perceived to have meddled in the BAKC election to ensure his preferred candidate was selected.26 The Bar Association may, therefore, have been following the implicit or explicit desires of the government in taking actions which delayed the court process and might limit the vigour of the defence.
The President of the BAKC protested against the establishment of a defence unit at the ECCC as it encroached on the role of the bar association and claimed that this unit “is intentionally and stubbornly violating Cambodian laws and the authority of the Bar Association”.27 He also said “We are being violated by foreigners” in objection to the unit head being an international appointee.28 As part of an escalating dispute the International Bar Association (IBA) cancelled a planned training session to familiarise Cambodian lawyers with international law after the BAKC threatened to boycott and to take “measures” against any members who attended, again arguing that the proposed workshop violated Cambodian law.29 In a statement the IBA said “the prohibition by the Cambodian Bar is part of a wider scheme of opposition designed to obstruct the operation of the tribunal”.30 In response to these claims that delays were politically motivated, National Co-Investigating Judge You Bunleng claimed “This lateness does not concern political issues; instead it is technical issues”.31 The claim that disputes were based on technical or procedural grounds recurred throughout the court’s operation.
As discussions of the internal rules continued there was a division amongst the international judges about what types of compromises they were willing to make in the
26 Cat Barton, "Extraordinarily Troubled Chambers," Phnom Penh Post, 1 December 2006; "CBA's Road to Standoff with ECCC," Phnom Penh Post, 23 March 2007. 27 Ker Munthit, "Cambodian Bar Association Seeks Control Over Defense Lawyers in Khmer Rouge Tribunal," Associated Press, 23 November 2006. 28 "Row Over Foreign Lawyers Threatens KRouge Tribunal," Agence France Presse, 24 November 2006; Ciorciari and Heindel, Hybrid Justice, 65. 29 Barton, "Extraordinarily Troubled Chambers," 1 December 2006; Erika Kinetz and Douglas Gillison, "ECCC Fails to Agree on Tribunal Rules," Cambodia Daily, 27 November 2006. 30 "Row Over Foreign Lawyers Threatens KRouge Tribunal," 24 November 2006. 31 Erika Kinetz, "ECCC Judges to Resume Talks on Rules," Cambodia Daily, 27 February 2007. 128 name of expediency. There were rumours that some of the international judges would walk away from their positions at the ECCC if solutions were not found soon.32 The national and international judges agreed to rename the defence unit the Defence Support Section which would consult with the BAKC and that all foreign lawyers would be registered with the BAKC. This registration requirement gave the Bar Association the chance to capitalise on the wealth of international lawyers who were paid significantly more than their national colleagues.
By March 2007 the international judges had made it explicit that the only remaining issue was the Bar Association, which was now insisting on significant fees from the foreign lawyers. Foreign lawyers wishing to be considered had to pay a US$500 membership application, and once a lawyer was appointed there was a one-off fee of US$2,000 and a monthly fee of US$200. Cambodian lawyers pay a US$200 application fee and US$30 each quarter.33 International Co-Investigating Judge Marcel Lemonde expressed his opinion that the ECCC could organise the registration of foreign lawyers as an internal process but Cambodian judges insisted that the Bar Association be involved.34 In a public statement the international judges said the fee “severely limits the rights of accused and victims to select counsel of their choice” whilst the national judges characterised it as an issue that lay outside the scope of the internal rules and therefore should not be hindering their adoption.35
Since the issue had yet to be resolved, the planned April plenary session was cancelled when the international judges announced their intention not to attend.36 In doing so they called the Bar Association’s fees “a prohibitive entry cost” that “would severely limit the number of foreign lawyers able to appear before the ECCC and would allow the accused to argue that they have not been afforded the right to have counsel of their choice, in breach of the International Covenant on Civil and Political Rights”.37 In response, the national judges criticised their international counterparts for delaying the court’s work and emphasised that they were all appointed “to make the ECCC a historic
32 Cat Barton, "Khmer Rouge Trials Future in Doubt," Phnom Penh Post, 26 January 2007; Seth Mydans, "Rules Dispute Imperils Khmer Rouge Trial," New York Times, 26 January 2007. 33 Cat Barton, "Bar Fees Last KRT Hurdle," Phnom Penh Post, 23 March 2007. 34 Ibid. 35 Extraordinary Chambers in the Courts of Cambodia, "Statement from the Review Committee of the ECCC," 16 March 2007. 36 Cat Barton, "Your Money, or Your Standards," Phnom Penh Post, 6 April 2007. 37 United Nations Assistance to the Khmer Rouge Trials, "International Judges of ECCC Say April Plenary Not Possible," 3 April 2007. 129 success and not a failure”.38 In late April the Bar Association dropped its fee for foreign lawyers to US$500 to cover the duration of the ECCC.39 This capitulation allowed the internal rules to be adopted by a plenary session in June 2007.40 The protracted battle was one of many examples where the work of the court was delayed by conflict between the international judges or the UN, and the Cambodian government or a proxy.
Corruption
During the early years of its operation the ECCC was plagued with allegations of corruption and poor human resources management. Early allegations were brought by the international NGO Open Society Justice Initiative (OSJI) which had been providing technical assistance to establish the court and working to coordinate NGO involvement with the ECCC.41 In October 2006 OSJI raised concerns about hiring practices at the court, saying that the process lacked transparency and that “in certain circumstances, political litmus tests have been applied to interviewees and appointees”.42 A UN audit was completed in June 2007 which found significant problems in human resources management at the tribunal. It found that many staff did not meet the minimum advertised requirements for the position, that there was a general lack of documentation related to hiring and performance evaluation, and that there had been a significant increase in the budgeted number of national staff without any accompanying justification. Financially, it found that national salaries were high, and had been inflated by providing tax exemptions, and that there were substantial salary increases of up to 338% for people whose files the auditors were not allowed to see. The report made a number of recommendations, the most dramatic of which was that “taking into account the serious lapses in the recruitment process to-date, all the recruitments of staff made by ECCC to-date should be nullified and a new recruitment exercise launched”.43 However a second report in August 2007 called this measure “draconian and unrealistic” and said it would “obviously be extremely harmful to the interests of the ECCC as an institution, depriving it of its staff just as it begins its judicial activities”.44 Recommendations from the report resulted in a code of conduct and more robust
38 Extraordinary Chambers in the Courts of Cambodia, "Press Release Issued at the Request of the National Judges of the ECCC," 5 April 2007. 39 Cat Barton, "About Face: CBA Lowers Bar Fees for KRT," Phnom Penh Post, 4 May 2007. 40 Cat Barton and Vong Sokheng, "KRT Climbs Over Major Rules Hurdle," Phnom Penh Post, 15 June 2007. 41 Long Panhavuth, interview by author, 13 December 2014, Phnom Penh. 42 Open Society Justice Initiative, "Memorandum to the Group of Interested States: Priority Issues for the Extraordinary Chambers in the Courts of Cambodia (ECCC)," 4 October 2006. 43 United Nations Development Program, "Special Audit," 4 June 2007, 5. 44 Cat Barton, "Public Disclosure or Damage Control," Phnom Penh Post, 5 October 2007. 130 human resources system, although the court’s review of the salary scale found it did not need altering.45
In February 2007 OSJI released a statement that said: Serious allegations that Cambodian court personnel, including judges, must kick back a significant percentage of their wages to Cambodian government officials in exchange for their positions on the court are undermining the credibility of the Extraordinary Chambers in the Courts of Cambodia. The alleged entanglement of money, political favors, government officials, and judicial officers heightens fears that the Cambodian judges are subject to government interference and cannot act independently.46 The government reacted angrily. Sean Visoth, Director of Administration at the ECCC, said he would no longer cooperate with OSJI and banned the organisation’s representatives from his office.47 In March 2007 the government threatened to expel OSJI from the country or to revoke the visa of the international court monitor.48 Long Panhavuth of OSJI was surprised to find donor states uncooperative and unwilling to address the issue of corruption; he said they regarded it as inevitable. He also reported that international judges and staff at the ECCC were unconcerned as long as the problem remained confined to the national section of the court.49 The international staff, particularly during the early stages of the court’s operation, may have trusted that the design of the ECCC could prevent corruption from resulting in undue influence at the court. Alternatively, it might represent an intention amongst the international staff to sideline their Cambodian colleagues, despite the court’s structure, and run the institution as they saw fit.
Allegations of kickbacks re-surfaced in 2008, with one employee saying “For the first four months [of my contract], I paid 70 percent [of my salary in kickbacks], then it went down to 10 percent”.50 Other sources suggested that up to thirty percent of a person’s salary had to be sent to their superiors or those who had appointed them.51 Although the Cambodian government insisted that it had the sole jurisdiction to deal with these
45 Open Society Justice Initiative, "Recent Developments at the Extraordinary Chambers in the Courts of Cambodia," https://www.opensocietyfoundations.org/publications/recent- developments-extraordinary-chambers-courts-cambodia-3, May 2008, 21-22. 46 Open Society Justice Initiative, "Corruption Allegations at Khmer Rouge Court Must Be Investigated Thoroughly," 14 February 2007. 47 Cat Barton, "Kickback Claims Stain the KRT," Phnom Penh Post, 23 February 2007. 48 Open Society Justice Initiative, "Progress and Challenges at the Extraordinary Chambers in the Courts of Cambodia," June 2007, 9. 49 Long Panhavuth, interview by author, 13 December 2014, Phnom Penh. 50 Cat Barton, "Tribunal Graft Charges Spread," Phnom Penh Post, 27 February 2009. 51 John A. Hall, "Court Administration at the ECCC," in On Trial: The Khmer Rouge Accountability Process, ed. John D. Ciorciari and Anne Heindel (Phnom Penh: Documentation Center of Cambodia, 2009), 187. 131 allegations, the UN conducted a review, which it insisted was not an investigation.52 The UNDP, which administered international donations that funded the national side of the court, suspended funding until these allegations had been addressed. The only evident punitive actions taken related to Director of Administration, Sean Visoth, who had been the central figure implicated in these allegations, and Chief of Personnel Keo Thyvuth who was transferred to a position at the Council of Ministers.53 In November 2008 Sean Visoth went on extended sick leave from the ECCC.54 More than six years later he was still on sick leave and his replacement, Tony Kranh, was still working under the title Acting Director of Administration.55 However, a UN official told a visiting German delegation in October 2008 that Sean Visoth had been found “guilty of corruption” by a UN investigation.56
The UN Office of Legal Affairs and the Cambodian government discussed the creation of an anti-corruption mechanism in 2008 and 2009 but made little progress. Donors, who were tired of the issue, encouraged the UN to compromise quickly (and therefore on the Cambodian government’s terms). The trial in Case 001 had begun by this time and, as during the negotiation process to establish the ECCC, the UN was pushed by several member states to resolve the issue quickly.57 The Australian government requested that its share of the funds be released but the UNDP refused on the grounds that corruption allegations were still pending.58 Days later, the Japanese government circumvented UNDP and donated US$4 million directly to the Cambodian government to fund the national side of the court.59 It seems that foreign governments were not willing to expend the political capital necessary to pressure the Cambodian government to make significant reforms, and that it was easier for all involved to accept that corruption would be present to a certain extent. Whatever the reason, it again made clear to the Cambodian government that it could secure international legitimacy without going to
52 Douglas Gillison, "Government Asserts Jurisdiction Over KR Tribunal Graft Claims," Cambodia Daily, 9-10 August 2008. 53 Cat Barton, "K Rouge Tribunal Shakeup," Phnom Penh Post, 12 August 2008. 54 Douglas Gillison, "ECCC's Sean Visoth Sick for Fourth Month," Cambodia Daily, 26 March 2009. 55 Julia Wallace, "Khmer Rouge Tribunal Chief Marks 6 Years on 'Sick Leave'," Cambodia Daily, 13 December 2014. 56 Elena Lesley, "Court Staffers Confirm Corruption at Tribunal," Phnom Penh Post, 27 February 2009; Douglas Gillison, "UN Officer Cites Gov't Meddling in Tribunal: Panel," Cambodia Daily, 26 February 2009. 57 Ciorciari and Heindel, Hybrid Justice, 90. 58 Robert Carmichael, "Australia in Controvery Over Khmer Rouge Trials," Radio Australia, 27 April 2009. 59 Elena Lesley, "Once Again, Japan Comes to Court's Rescue," Phnom Penh Post, 1 May 2009. 132 the lengths demanded by the UN Secretariat and that it could continue corrupt judicial practices as long as it made a cursory effort to be seen to be addressing the problem.
The defence teams at the court sought to use these corruption allegations to discredit the ECCC. In January 2009 the Nuon Chea team filed a case in the Phnom Penh Municipal Court requesting an investigation into corruption at the ECCC.60 The national judges at the ECCC reacted angrily to this move and to the claim that some judges were also paying kickbacks. As judges are appointed by the king they asserted there was no reason for them to pay kickbacks to government officials.61 They also threatened action against the defence lawyers: “we would like to state that if the above accusation stems from bad faith in putting the blame on the judges, we reserve the right to legal recourse against any individuals who have provoked such a problem”.62 The Phnom Penh court dropped the case a month later without explanation.63 At a public bail hearing at the ECCC in April 2009, the Ieng Sary team questioned whether the judicial investigation process had been tainted by corruption. They stated that if the court was going to collapse under the weight of these allegations (which saw a drop in funding) then their client should be released.64 The judges deemed these questions inappropriate and said there would be no discussion of the budget or corruption. Government spokespeople attributed the allegations to political motives, calling them a “strategy to delay the judicial process” and asserting that “some NGOs have a political agenda with Khmer Rouge issues”.65
In August 2009 the government and the UN agreed to an anticorruption mechanism that established an Independent Counsellor. The negotiations over the issue of corruption at the ECCC mirrored the talks that had established the tribunal: the government was reluctant to allow the UN, or the international staff at the ECCC, too much power and as the issue persisted donor countries encouraged a compromise along lines the Cambodian government would be willing to accept. By March 2010 it was announced that the Independent Counsellor was investigating three complaints, two related to wrongful
60 Cat Barton, "KRT Staff Targeted By Lawyers," Phnom Penh Post, 9 January 2009. 61 Cambodian judges are appointed by royal decree after a decision made by the Supreme Council of Magistracy which is (nominally) chaired by the King. Accordingly the judges claimed that since the decision to appoint them was not (officially) a decision taken by government officials there would be no reason for them to pay kickbacks to such officials. 62 Extraordinary Chambers in the Courts of Cambodia, "National Judges Press Release," 9 January 2009. 63 Douglas Gillison and Prak Chan Thul, "Phnom Penh Court Halts ECCC Probe," Cambodia Daily, 9 February 2009. 64 Georgia Wilkins, "KRT Judges Suppress Corruption Questions," Phnom Penh Post, 3 April 2009. 65 Ibid. 133 termination of employment and one of employees being forced to pay their supervisor part of their salary.66 Despite earlier promises to the contrary, the report of the office’s investigations was not made public.67 There have been no further allegations of corruption made publicly.68 It is highly unlikely that the ECCC is corruption free but rather that corruption levels are confined to what is considered acceptable for the local context and foreign governments have made clear that there will not be a strong international effort to further reduce corruption at the court.
The split administrative system and the high salaries at the ECCC made it highly likely that cases of corruption would continue to occur. A UN representative called it “a leap of faith” that they would be able to insulate the ECCC from the endemic corruption in Cambodia.69 A corruption assessment conducted by USAID in 2004 found that most Cambodians found attempting to resist corruption “a futile act”:
Patronage and mutual obligations are the center of an all-embracing system. Appointment to public office hinges on political connections or payment of surprisingly large sums, and these payments are recouped through a widely accepted “right” to collect bribes. Judges buy their jobs and solicit significant bribes by selling judgments when the state is indifferent to a result. However, it is generally accepted that when the regime perceives a threat or opportunity, judicial decisions are dictated by senior regime leaders.70
Cambodia has consistently scored around twenty out of a hundred, where zero is the most corrupt, on Transparency International’s Corruption Perception Index since it was added to the survey in 2005.71 It has been reported that bribes in the range of US$20,000 to US$50,000 have been given to pass the entrance exam to the Royal Academy for Judicial Professions, the training school to become a judge or a prosecutor.72 Once they have completed their training, judges are reliant on the favour of the CPP to receive an appointment, particularly to lucrative positions in Phnom Penh. Judges who do not rule
66 James O'Toole, "Audit Office Says Probes in Progress," Phnom Penh Post, 23 March 2010. 67 Vong Sokheng and James O'Toole, "ECCC Corruption Report Suppressed," Phnom Penh Post, 13 October 2010. 68 John D. Ciorciari and Anne Heindel, "Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal," Michigan Journal of International Law 35, no. 2 (2014): 148. 69 Cat Barton, "UN Private Audit Draws Public Ire," Phnom Penh Post, 1 June 2007. 70 Michael Calavan, Sergio Diaz Briquets, and Jerald O'Brien, "Cambodia Corruption Assessment," (USAID Cambodia, 2004). 71 Stuart White, "'Most Corrupt in ASEAN'," Phnom Penh Post, 4 December 2013; Charles Rollet, "Slight Improvement in Corruption Ranking," Phnom Penh Post, 4 December 2014. 72 International Bar Association's Human Rights Institute, "Justice versus Corruption: Challenges to the Independence of the Judiciary in Cambodia," September 2015, 40; Asian Human Rights Commission, "The State of Human Rights in Cambodia - 2008: A Turning Point for the Worse?," (2008). 134 in line with government interests in political cases are demoted or transferred to remote jurisdictions.73
A 2008 survey conducted by the University of California’s Human Rights Center found significant distrust of the Cambodian judiciary. Only 36.1% of respondents said that they trusted the Cambodian court system, 36.8% said they trusted Cambodian judges, and 60.7% agreed with the statement “Going to court means paying bribes to judges”.74 However, in the same survey 67% of respondents said they believed the ECCC would be fair and neutral. The predominant reasons given amongst those who did not think it would be fair and neutral were that it had not shown any results, it was corrupt, and it was associated with the Cambodian government.75 General concerns about the Cambodian judiciary manifested concretely at the ECCC in past statements made by President of the Trial Chamber Nil Nonn. He had stated in a 2002 interview that whilst “it is not through any effort on my part… if after a trial people feel grateful to me and give me something, that’s normal, I don’t refuse it”.76 Ieng Sary’s defence team sought to have Nil Nonn disqualified over these statements but the Trial Chamber found that the defence was not alleging partiality in cases before the ECCC and that therefore the appropriate recourse was to domestic mechanisms that govern the Cambodian judiciary.77
Case 001
In July 2007 the ECCC took custody of its first defendant, Duch, who had been held in military detention since his arrest in 1999. His pre-trial detention had been repeatedly extended as the establishment of the ECCC, before which he was expected to go on trial, had been delayed. This situation drew increasing criticism as it continued but laws were changed and additional charges laid to allow the government to add a legal veneer of justification to his ongoing detention.78 Whilst the Co-Prosecutors had initially filed submissions relating to five suspects together, the Co-Investigating Judges decided to
73 Cheang Sokha and Liam Cochrane, "Ax Hangs Over Judge Who Dropped Chea Vichea Charges," Phnom Penh Post, 26 March 2004; "Documentary in Controversy," Phnom Penh Post, 6 September 2007. 74 Phuong Pham et al., "So We Will Never Forget: A Population-Based Survey on Attitudes About Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia," (Human Rights Center, University of California, Berkeley, 2009), 33. 75 Ibid., 39. 76 James O'Toole, "KRT Judge Accused of Taking Bribes," Phnom Penh Post, 19 September 2010. 77 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Ieng Sary's Application to Disqualify Judge Nil Nonn and Related Requests," Case File 002/19-09-2007- ECCC/TC, E5/3, 28 January 2011. 78 Charles McDermid and Sam Rith, "Calls for Infamous Duch to Go Free," Phnom Penh Post, 15 December 2006. 135 split the case into two. The investigation and trial of Duch was then to be conducted separately for the sake of expediency and to show timely, concrete results from the ECCC’s work. Duch was accused of crimes related only to Phnom Penh security centres rather than to the nationwide policies contained in the case against the other four accused. His trial was seen as a likely win for the court; there were significant quantities of documentation, former guards and prisoners were available to testify, Duch had not been amnestied or pardoned in the past, and he was a cooperative defendant seemingly eager to explain that period of his life. He also had neither significant political ties nor a prominently known role in the existing narrative of the Khmer Rouge period. Nonetheless, the court was criticised for pursuing this case first as Duch was far younger (aged sixty-six during his trial) and in better health than the other four accused. In those cases, there were well-founded concerns that the accused would not survive long enough to be convicted.
The prosecutors filed their final submission in July 2008 and Duch was indicted in August. Substantive hearings were conducted from March to September 2009. As the ECCC reports, “During the 72 days of hearing of evidence, 9 expert witnesses, 17 fact witnesses, 7 character witness, and 22 Civil Parties were heard before the Trial Chamber”, including four people who survived up to eighteen months of imprisonment at S-21.79 Over 31,000 visitors observed proceedings in person at the court building.
Throughout the trial process Duch made statements expressing his remorse for these “intolerably and unforgivably serious crimes” and saying that he is “morally and legally responsible for the crimes committed at S-21”, but also emphasising that he was trapped as “a hostage, a mere puppet in the criminal regime”.80 In contrast, the prosecutors sought to demonstrate that Duch went beyond what was required for his role, acting with “ruthless efficiency” and being “totally indifferent to the suffering of the victims”.81 Given his cooperation and admissions of guilt throughout the trial, Duch surprised and confused many people by asking to be acquitted and released during closing statements. Amongst the surprised was Duch’s international lawyer, François Roux, who described this request as “completely unexpected, a moment of spontaneity”, although the national lawyer, Kar Savuth, appeared to have been involved in Duch’s change of heart, describing
79 Extraordinary Chambers in the Courts of Cambodia, "Case 001: Duch," October 2013. 80 Extraordinary Chambers in the Courts of Cambodia, "Compilation of Statements of Apology Made by Kaing Guek Eav alias Duch During the Proceedings," 16 February 2012. 81 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings - Kaing Geuk Eav 'Duch', Trial Day 74," Case File 001/18-07-2007-ECCC/TC, E1/79.1, 24 November 2009, 5. 136 him as a “scapegoat”.82 Duch subsequently told the court he had lost confidence in his international lawyer, who was removed.
The reasons behind this last minute split of the defence lawyers are unclear. Differences could have been exacerbated by issues of language or translation; there was an extended and contradictory discussion at the court about whether Duch was seeking acquittal or a reduction of his sentence to time served, both of which would have meant his release. Duch later sought to appoint a Chinese lawyer because, as Kar Savuth explained to the media, “China is a communist country and during the Pol Pot regime [Cambodia] was also a communist country. He doesn’t want a lawyer from a free country to judge the communist people”.83 Since Kar Savuth has also acted as Hun Sen’s personal lawyer there were suspicions that the abrupt change was related to larger political factors. He argued that Duch did not fall within the jurisdiction of the ECCC, which had authority only to prosecute senior leaders and those most responsible for crimes. If the court made a narrow ruling on its personal jurisdiction it would be easier to argue that the suspects contained in the contentious Cases 003 and 004 should not go on trial. Alternatively, it could have been a tactic to discredit the ECCC, with Roux saying that it called into question “the competence of the court”.84
In July 2010 the Trial Chamber convicted Duch of crimes against humanity and grave breaches of the 1949 Geneva Conventions. He was originally sentenced to thirty-five years in prison, which was reduced by five years to account for his illegal detention by the Cambodian Military Court since 1999. With credit for time served he faced a further nineteen years in jail, a sentence that many Cambodians felt was too lenient. Survivors of S-21 were disappointed. Bou Meng called it “a slap in the face” and Chum Mey said it was “not justice”.85 Theary Seng, an outspoken victims’ advocate and civil party, delivered the most quotable line: “Crimes against humanity has been reduced to 11 hours per life. Besides shock, what else can one feel at the moment?”86 By contrast, most NGOs welcomed the verdict. The Open Society Justice Initiative called it “a significant step toward accountability in Cambodia and a major achievement in international justice”
82 Robbie Corey Boulet, "Duch Asks to Be Set Free," Phnom Penh Post, 27 November 2009; Robbie Corey Boulet, "S-21 Chief Downplays Role in Final Statements," Phnom Penh Post, 26 November 2009. Defendants have typically been represented by a Cambodian and foreign lawyer mirroring the structure of the rest of the court. 83 Sebastian Strangio and Cheang Sokha, "Duch Seeks Chinese Lawyer," Phnom Penh Post, 12 July 2010. 84 Boulet, "Duch Asks to Be Set Free," 27 November 2009. 85 Veng Rachana and James O'Toole, "Dust Settles on KRT Verdict," Phnom Penh Post, 13 August 2010. 86 Guy De Launey, "Tears and Disbelief at Duch Verdict," BBC News, 26 July 2010. 137 and emphasised that the trial had been “carried out in accordance with international standards”.87 The Cambodian Center for Human Rights (CCHR) particularly welcomed the reduction of sentence due to Duch’s extended pre-trial detention, a problem that was rampant in Cambodia.88 They argued that this “reduction in sentence provides a good example to the domestic courts of Cambodia, whose detention practices remain a serious concern, and serves as a reminder of the universality of human rights”.89 For his part, Hun Sen said “I respect the verdict handed down by the court. The government has no right to interfere or put any pressure on the court”.90
On appeal, the prosecution asked for a life sentence, to be commuted to forty-five years because of the unlawful detention, and that “a further reduction be made as appropriate for the very limited mitigating circumstances established in this case with an absolute maximum reduction of up to five years”.91 In light of Duch’s change of attitude during closing statements the Co-Prosecutors attached far less weight to his previous statements of contrition. The defence team (where the international lawyer had now been replaced by an additional Cambodian lawyer) argued Duch should be acquitted and released.92
In February 2012 the Supreme Court sentenced Duch to life in prison. The Supreme Court agreed with the Co-Prosecutors that “remorse as a mitigating factor is of limited weight only”.93 They also ruled that the Trial Chamber had given inadequate weight to the severity of the crimes. By a supermajority decision (with the assent of four Cambodian judges and one international) they also found that the Trial Chamber erred in law when it granted a five-year remedy for illegal detention. This was a surprising decision since none of the parties had raised this issue during appeals hearings. The International Co-Prosecutor said afterwards, “we got more than we asked for”.94 It was
87 Open Society Justice Initiative, "Duch Verdict Marks Milestone for Khmer Rouge Tribunal," 26 July 2010. 88 Cambodian Center for Human Rights, "Sixth Bi-annual Report: Fair Trial Rights in Cambodia," (2013), 18. 89 Cambodian Center for Human Rights, "The Duch Trial - A Good Example for the Cambodian Courts," Press Release, 26 July 2010. 90 Cheang Sokha, "PM Says Government Respects Duch Verdict," Phnom Penh Post, 5 August 2010. 91 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Appeal Judgement," Case File 001/18-07-2007-ECCC/SC, F28, 3 February 2012, 164. 92 ECCC spokesperson Lars Olsen said that Duch had specified criteria for the selection of a new international lawyer but that the Defence Support Section had not been able to find an international lawyer that fit these criteria. Consequently Duch chose a second Cambodian lawyer, Kang Ritheary. Cheang Sokha and James O'Toole, "Duch Appoints Cambodian Lawyer," Phnom Penh Post, 9 August 2010. 93 Supreme Court Chamber, "Appeal Judgement," 3 February 2012, 169. 94 Bridget Di Certo, "Duch Verdict Worries," Phnom Penh Post, 6 February 2012. 138 regarded as a response to public outrage at the original verdict, but CCHR, which had welcomed the original reduction called this reversal “a dangerous precedent for the Cambodian judiciary”.95 It is not uncommon for verdicts to be revised—this is part of the purpose of appeals courts—but making a change to a harsher sentence than asked for by the prosecution, and seemingly in response to public opinion, suggests that substantive justice concerns were prized over procedural justice.
Case 002
Nuon Chea was the first Case 002 suspect arrested at his home in Pailin in September 2007, joining Duch who had been transferred from military custody in July. The two men were subsequently joined at the ECCC detention centre in November by Ieng Sary, Ieng Thirith, and Khieu Samphan. Each was charged with crimes against humanity and war crimes.96 Aside from concerns for the health of Khieu Samphan, who was arrested at a hospital in Phnom Penh, these arrests proceeded smoothly. However, Case 002 was far more complex and politically tinged than Case 001 had been. The defendants had high- level political connections, vigorously denied the charges before them, and had much more combative defence lawyers. The investigation and subsequent trial thus encountered far more public problems and aroused the ire of government leaders at various stages.
Disqualification Motions The first disqualification motion (of many) was filed by the Nuon Chea team against Pre- Trial Chamber judge Ney Thol. They argued for his dismissal as he was a serving military officer and had been involved in past “highly questionable judicial decisions” where opposition politicians had been convicted in circumstances in which a reasonable person informed of the situation would reasonably apprehend bias.97 This motion, along with all future calls to permanently disqualify judges, was denied. The Pre-Trial Chamber found that the defence team had not reached the required standard to demonstrate perceived bias. They reasoned that Judge Ney was serving at the ECCC in his personal capacity, not in his capacity as an officer in the Royal Cambodian Armed Forces, and that there was no
95 Ibid. 96 Ieng Thirith was not initially charged with war crimes but the case against her was expanded in December 2009. Robbie Corey Boulet, "Ieng Thirith Charged with Genocide at KRT," Phnom Penh Post, 22 December 2009. 97 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Public Decision on the Co-Lawyers Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea," Case File 002/19-09-207- ECCC/OCIJ (PTC 01), C11/29, 4 February 2008, 5; Douglas Gillison and Yun Samean, "Nuon Chea's Lawyers Move To Disqualify Judge," Cambodia Daily, 1 February 2008. 139 reason that behaviour in past cases would cause bias in this case.98 The ECCC thus set the bar very high for any disqualification motions. Most of the Cambodian judges at the ECCC had lived through the Khmer Rouge regime, and their ties with the CPP had secured them their prominent and lucrative positions.99 The very structure of the ECCC created an appearance of bias, the wrangling over the number of judges and the supermajority system would not have been necessary was there not an international assumption that Cambodian judges were biased. Although some of the international judges have acknowledged political interference at the ECCC in a private capacity, it is very rare that an international judge dissents from decisions about judicial bias; it seems some compromises are acceptable to protect the reputation of the court.100 To disqualify a judge on any grounds other than a particularly egregious act of bias against the defendants would have risked a domino effect of multiple disqualifications.
It was not only the Cambodian judges who were subject to disqualification motions. In the ECCC system (a version of that operating in Cambodia, in turn based on an older French style) the Co-Investigating Judges have the exclusive right to conduct investigations. Defence teams can submit requests for certain types of investigative actions but these are conducted, or not, at the discretion of the Co-Investigating Judges. Thus, it was particularly significant when a former staffer in the Office of the Co- Investigating Judges claimed that International Co-Investigating Judge Marcel Lemonde had said in a meeting “I would prefer that we find more inculpatory evidence than exculpatory evidence”.101 In response the Ieng Sary team filed a motion with the Pre-Trial Chamber calling for the disqualification of Lemonde on the basis of his bias against the suspects. Lemonde stated that he did not recall making such a statement but that if he had it would have been “in jest”.102 The Pre-Trial Chamber dismissed the motion to
98 Pre-Trial Chamber, "Public Decision on the Co-Lawyers Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal Against the Provisional Detention Order in the Case of Nuon Chea," 4 February 2008, 7. 99 Silvia Cartwright, who was a judge in the ECCC’s Trial Chamber until 2014, drew renewed attention to this issue when she said that one of the Cambodian judges had been forced to marry his wife during the Khmer Rouge regime, and that the Cambodian judges can sometimes be heard “growling” in responses to descriptions of crimes during the trial sessions. Stuart White and Griff Tapper, "Former International Judges Resparks KRT Bias Debate," Phnom Penh Post, 19 September 2014. 100 Shannon Maree Torrens, "Allegations of Political Interference, Bias and Corruption at the ECCC," in The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law, ed. Simon Meisenberg and Ignaz Stegmiller (The Hague: Asser Press, 2016), 69. 101 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Ieng Sary's Application to Disqualify Co-Investigating Judge Marcel Lemonde," Case File 002/09-10- 2009-ECCC/PTC(01), Document Number 7, 9 December 2009. 102 Ibid., 3. 140 disqualify Lemonde, finding that the weight of a single sentence was not significant in the context of a two-year investigation, and that the statement did not amount to an instruction to staff.103 A decision against Lemonde could have meant restarting the already lengthy investigation and would have created a dangerous precedent.
Ieng Sary’s team also filed a request for a public hearing over the independence of the international judges in the Pre-Trial Chamber, based on comments by Hun Sen saying “I know that some foreign judges and prosecutors have received orders from their governments to create problems here…. There is no doubt that they received advice from their government to do so”.104 The defence asked the Pre-Trial Chamber to verify the alleged conduct saying not that bias was necessarily present but that since Hun Sen was a respected person in Cambodia it could be perceived by a reasonable person that there was bias. There was no basis for this kind of action at the ECCC and since no evidence of bias was presented the request was dismissed.105 This outcome was not surprising but alongside questioning the legal and factual bases for the crimes their clients are alleged to have committed, part of the strategy of defence teams at the ECCC has been to discredit the tribunal. Ieng Sary defender Michael Karnavas observed that it is the role of the defence lawyer to “go about zealously exploiting every conceivable opening and pressing every conceivable advantage that may benefit their clients” whilst Nuon Chea’s lawyer Victor Koppe argued that the “ECCC has all the elements of victor’s justice” but that “no one seems to care about this, because most everybody already thinks that Nuon Chea is guilty” whilst also expressing his interest in “cases that pit the individual against the state, the international community, or public opinion”.106
Pre-Trial Issues Ieng Sary’s conviction by the People’s Revolutionary Tribunal in 1979, and his 1996 amnesty and pardon, arose as issues in the pre-trial stage of Case 002. The Pre-Trial Chamber first addressed this issue in October 2008 and determined that it was not a bar to prosecution but also left the issue to be readdressed by the Trial Chamber.107 The
103 Ibid., 8-9. 104 The Defence for Ieng Sary, Extraordinary Chambers in the Courts of Cambodia, "Ieng Sary's Request for Appropriate Measures to be Taken Concerning Certain Statements by Prime Minister Hun Sen Which Challenge the Independence of Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing," Case File 002/19-09-2007-ECCC/OCIJ(PTC), 20 October 2009. 105 Ibid. 106 Extraordinary Chambers in the Courts of Cambodia, "Interviews with the Defence," https://www.eccc.gov.kh/en/blog/2015/07/31/interviews-defence, 31 July 2015; Daniel Otis, "Khmer Rouge Tribunal: The Devil's Advocates," The Diplomat, 20 December 2013. 107 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Appeal Against Provisional Detention Order of Ieng Sary," Case File 002/19-09-2007-ECCC/OCIJ (PTC 03), C22/I/74, 17 October 2008, 15-17. 141
Cambodian government and the UN Secretariat had ultimately decided to leave the status of Ieng Sary’s amnesty for the ECCC to determine, having failed to reach an agreement on the issue during negotiations. Since it was clear that the Cambodian government did not have any objections to his prosecution by the time the ECCC was established (it would not have allowed him to be arrested if it had), and with the international legal trend for national amnesties not to be a bar to the prosecution of international crimes, it was clear that Ieng Sary would be convicted of something. It was for the ECCC to decide whether the past conviction and pardon had any standing that would limit the crimes for which he would eventually, inevitably, be convicted.
A similar situation occurred with pre-trial detention. It was the role of the ECCC to issue the reasoned decision that justified the pre-determined necessity of detention.108 For the sake of public appearances, it was necessary that the charged persons were detained but it was just as necessary that this decision be seen to be based in law and correct procedure. The ECCC was empowered to hold people for up to three years before they were indicted if the Co-Investigating Judges considered it necessary to ensure the presence of the charged person, or their security, to preserve public order, or to protect evidence or witnesses. Many of the earliest motions from the defence teams were challenges to detention orders. Requests for home detention or hospitalisation in lieu of detention, and in light of advanced age and poor health, were denied by the ECCC.109 It is not clear that upholding pre-trial detention was an error of law but given the large problem that excessive pre-trial detention posed in the Cambodian judicial system this issue was a missed opportunity for the ECCC to leave a positive precedent outside the immediate circumstances of the Khmer Rouge cases.110
In December 2009 Khieu Samphan, Nuon Chea, Ieng Sary, and Ieng Thirith were additionally charged with genocide, and in January 2010 the Co-Investigating Judges announced the conclusion of their investigations.111 The final stages of the investigation, where parties can request additional investigative actions, were conducted against the impending deadline of September 2010. At this time Nuon Chea would have been in detention for three years and the ECCC would be obliged to release him under their own internal rules. This situation would have been politically untenable and would have done significant damage to the reputation of the ECCC; public opinion assumed the suspects
108 Ciorciari and Heindel, Hybrid Justice, 153, 56. 109 Pre-Trial Chamber, "Decision on Appeal Against Provisional Detention Order of Ieng Sary," 17 October 2008. 110 Cambodian Center for Human Rights, "Sixth Bi-annual Report: Fair Trial Rights in Cambodia." 111 Boulet, "Ieng Thirith Charged with Genocide at KRT," 22 December 2009. 142 were guilty and their advanced age meant that detention prior to conviction was likely to comprise a significant portion of their punishment. A Closing Order (the indictment) was issued with days to spare after the Co-Prosecutors requested the indictment of all four suspects.112
At this stage the court had already been operating for the anticipated total length of its existence, and no senior leaders had been put on trial. Plans for the ECCC consistently and vastly underestimated the amount of time it would take to complete the process, as most similar courts have. In his August 2007 report the Secretary-General amended the original timetable to estimate the completion of the ECCC’s work by the end of 2009. 113 In the 2008 budget the ECCC had been urged by donors to cut its requests significantly, and had accordingly brought the projected end date of the court forward by a year to 2010.114 Then the approved budget for 2010-2011 foresaw the completion of the trial and all appeals in relation to Case 002 by November 2013.115 At the time of writing in late 2016 the trials in Case 002 are ongoing.
Trial Stage Case 002 was significantly more complex than Case 001 since it addressed nationwide crime sites and less direct forms of liability; the Closing Order for Case 002 was 739 pages long in English where in Case 001 it was only 45 pages. This complexity, and the advanced age of the defendants, led the Trial Chamber to consider splitting the case into a series of smaller trials. In February 2011 the ninth plenary session of the ECCC met to discuss amendments to the internal rules and adopted internal rule 89ter which allowed, “[w]hen the interest of justice so requires”, the Trial Chamber to sever the case against some of the accused or for part of the charges to be tried and adjudicated separately.116 Presumably in this context the interests of justice meant securing a verdict before the defendants died.
On 22 September 2011 the Trial Chamber announced the severance of Case 002 and the creation of Case 002/01 which would consider crimes against humanity in relation to the first and second phases of forced population movement, in April 1975 and from
112 Office of the Co-Investigating Judges, Extraordinary Chambers in the Courts of Cambodia, "Closing Order," Case File 002/19-09-2007-ECCC-OCIJ, D427, 15 September 2010. 113 United Nations General Assembly, "Report of the Secretary-General on Khmer Rouge Trials," A/63/304, 27 August 2007. 114 "Cambodia's 'Killing Fields' Court Trims Budget," Reuters, 24 June 2008. 115 Extraordinary Chambers in the Courts of Cambodia, "Annexes to ECCC Budget 2010-2011," 5 April 2010. 116 Extraordinary Chambers in the Courts of Cambodia, "Internal Rules (Rev. 7)," 23 February 2011, 67. 143
September 1975 respectively.117 This choice of crimes appeared to be a chronological progression through the charges starting with the evacuation of urban areas. The chamber reserved the right to add further charges to Case 002/01 “where circumstances permit”.118 Although recognising the need to reduce the size of the case the Co- Prosecutors objected to the lack of consultation with the parties before this decision was taken, and sought a more representative choice of crimes, fearing that this would be the only trial in Case 002. In October 2012, nearly a year after opening statements were delivered in November 2011, the Trial Chamber expanded the scope of the trial to include killings of members of the fallen government’s military at Tuol Po Chrey in Pursat province.119 However, the Chamber denied the Co-Prosecutors’ appeal to include additional sites such as S-21 prison on the grounds that they were not “closely connected to the existing factual allegations in Case 002/01” and “would risk a substantial prolongation of the trial”.120
The Supreme Court Chamber significantly disrupted the trial process when it ruled on the Co-Prosecutors’ appeal in February 2013 and annulled the Trial Chamber’s severance order entirely.121 This ruling occurred well over a year into proceedings. The decision found that the Trial Chamber had failed to seek input from the parties, failed to provide sufficient reasoning, failed to plan for future trials, and that if future trials were not envisaged the Trial Chamber had failed to make this first case sufficiently representative of the charges.
At a hearing to discuss the consequences of this ruling, the Co-Prosecutors argued that adding S-21 would make this case representative, whilst the teams for Nuon Chea and Ieng Sary argued that the whole indictment must be considered, and the Khieu Samphan team argued that the case against their client should be severed because the poor health
117 Extraordinary Chambers in the Courts of Cambodia, "Press Release: Severance of Proceedings Ordered in Case 002," 22 September 2011. 118 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Co- Prosecutors' Request for Reconsideration of the Terms of the Trial Chamber's Severance Order (E124/2) and Related Motions and Annexes," Case File 002/19-09-2007/ECCC/TC, E124/7, 18 October 2011, 5. 119 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Notification of Decision on Co-Prosecutors' Request to Include Additional Crime Sites Within the Scope of Trial in Case 002/01 (E163) and Deadline for Submission of Applicable Law Portion of Closing Briefs," E163/5, 8 October 2012. 120 Ibid. 121 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on the Co-Prosecutors' Immediate Appeal of the Trial Chamber's Decision Concerning the Scope of Case 002/01," Case File 002/19-09-2007-ECCC-TC/SC(18), E163/5/1/13, 8 February 2013. 144 of his co-accused was hindering his right to a speedy trial.122 Following evaluations on the health of the accused by medical experts the Trial Chamber announced a new severance order, identical to the previous one (as amended to include the Tuol Po Chrey killings). In their reasoning the Trial Chamber judges cited Nuon Chea’s poor health and the extensive trial proceedings that had already been conducted and said that expanding the scope of Case 002/01 “does not represent a prudent exercise of the Chamber’s trial management discretion”.123 The importance of speed had once again been highlighted in the meantime by the death of Ieng Sary in March 2013.124
The severance provision inserted into the internal rules was also used in reference to Ieng Thirith in November 2011, shortly after the decision that created Case 002/01. Ieng Thirith’s fitness to stand trial had been raised in passing shortly after she was detained; the defence’s January 2008 challenge to her provisional detention had been partially based on her physical and mental ill health.125 At a February 2010 hearing, again related to her provisional detention, she appeared confused. She could not recall her husband’s name or how many children she had. In arguing that it was not safe to release her the prosecutor stated that “She regularly and violently, on at least 70 occasions, threatened co-detainees at the detention facility and also threatened guards at the detention facility”.126 However, at the time court-appointed experts found that she did not suffer from a mental disorder and that she was fit to stand trial.
In 2011, she was examined by four psychiatric experts who all agreed that she was suffering from dementia likely caused by Alzheimer’s Disease, and found that whilst she had the capacity to enter a plea, understand the charges and testify, she was not fit enough to follow the course of proceedings or to instruct her counsel.127 The Trial Chamber unanimously found Ieng Thirith unfit to stand trial but differed about the impact of this decision. Whilst the international judges found they had no authority to order any action other than her unconditional release, the national judges wanted to
122 Stuart White, "Defence Teams Call for Expansion of Case 002," Phnom Penh Post, 21 February 2013; Stuart White, "Hearings Open on Mini-Trials," Phnom Penh Post, 19 February 2013. 123 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Severance of Case 002 Following Supreme Court Chamber Decision of 8 February 2013," Case File 002/19-09- 2007/ECCC/TC, E284, 26 April 2013, 70. 124 Michelle Vachon and Saing Soenthrith, "KR Defendant Ieng Sary Dies," Cambodia Daily, 15 March 2013. 125 Defence of Ieng Thirith, Extraordinary Chambers in the Courts of Cambodia, "Appeal Against the Provisional Detention Order," Case File 02/19-09-2007-ECCC-OCIJ (PTC 02), 2 January 2008, 18. 126 James O'Toole, "Release Sought for Ieng Thirith " Phnom Penh Post, 16 February 2010. 127 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Ieng Thirith's Fitness to Stand Trial," Case File 002/19-09-2007/ECCC/TC, E138, 17 November 2011, 20-21. 145 order her hospitalisation and treatment with a view to reassessing her fitness again in six months. In the absence of a supermajority, and with no guidance as to the implications of failing to reach one in this scenario, the Trial Chamber decided that the interpretation most favourable to the accused must be followed and ordered her unconditional release.128
However, the Supreme Court Chamber ordered that she should receive medical treatment for six months at which point her fitness to stand trial would once again be assessed.129 Having implemented a course of treatment prescribed by the experts whilst continuing to detain Ieng Thirith, the Trial Chamber reassessed her health and found in September 2012 that she was still unfit to stand trial, and again ordered her release. In doing so they requested Ieng Thirith not to leave Cambodia and reminded her of her responsibilities not to interfere in the course of justice but imposed no conditions on her release.130 The Supreme Court again intervened and imposed conditions on her release including six-monthly medical examinations, security checks, and a requirement to inform the court before any change in her residential address.131
The Supreme Court Chamber has overturned prominent, and controversial, Trial Chamber decisions on a number of occasions. This occurred in the case of sentencing Duch, in decisions over the severance of Case 002 into a series of mini-trials, and in Ieng Thirith’s fitness to stand trial. The comparative legality and quality of reasoning in the decision to overturn a ruling of the Trial Chamber is of less relevance than is the fact
128 Ibid., 30. 129 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Immediate Appeal Against the Trial Chamber's Order to Release the Accused Ieng Thirith," Case File 002/19-09-2007-ECCC-TC/SC(09), E138/1/7, 13 December 2011. 130 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Reassessment of Accused Ieng Thirith's Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011," Case File 002/19-09-2007/ECCC/TC, E138/1/10, 13 September 2012. In the Trial Chamber decision that ordered Ieng Thirith’s immediate release, the Trial Chamber: “REMINDS the Accused of her obligation pursuant to Internal Rule 35 to refrain from interference with the administration of justice, and in particular, interference with witnesses, experts or victims before the ECCC (including Accused other than her husband Ieng Sary) and further requests the Accused to desist from communicating with the media in relation to proceedings before the ECCC; REQUESTS that the Accused remain within the territory of the Kingdom of Cambodia and that she or her guardian inform the ECCC Office of Administration prior to any change of address; NOTES that the Trial Chamber possesses no jurisdiction pursuant to the Cambodian Civil Code to appoint a guardian or curator in respect to the Accused, which is instead within the exclusive competence of the Cambodian domestic courts”. The Trial Chamber also undertook to annually consult experts on treatment of Alzheimer’s disease but rejected other measure sought by the Co-Prosecutors and the Civil Party Lead Co- Lawyers. 131 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Immediate Appeal Against the Trial Chamber's Order to Unconditionally Release the Accused Ieng Thirith," Case File 02/19-09-2007-ECCC-TC/SC (16), E138/1/10/1/5/7, 14 December 2012. 146 that, in each case, the Supreme Court acted to counteract an unpopular decision. The decision to shorten Duch’s sentence, to curtail the scope of hearings in Case 002, or to release a suspect unconditionally stood in opposition to Cambodians’ desire to see these people punished or to learn more about the regime through the trial. The Supreme Court overturned decisions that disappointed people who presumed that the defendants are guilty. Although many of these aspects of the ECCC’s operation were controversial or challenging, there were also problems that were driven by domestic political concerns.
Involving the CPP During the course of the investigations, International Co-Investigating Judge Marcel Lemonde determined that certain former Khmer Rouge members, who now occupied some of the highest positions of government, could provide valuable evidence not available from other sources. In September 2009 he issued summonses to six members of the CPP to be interviewed as witnesses: Chea Sim (President of the Senate), Heng Samrin (President of the National Assembly), Hor Namhong (Foreign Affairs Minister), Keat Chhon (Finance Minister), and Senators Sim Ka and Ouk Bunchhoeun. He was surprised that these letters remained confidential and having received no responses he chose to make the summoning letters public on the ECCC website in October 2009.132
In response the government spokesperson, Khieu Kanharith, said that while these six could appear in court voluntarily, the government’s position was that they should not give testimony and that the foreigners at the court could “pack their clothes and return home” if they had a problem.133 Prime Minister Hun Sen adopted the logic that because the government had established the ECCC its members could not testify before it. “These [officials] made the Pol Pot regime collapse, and they adopted the law on the Khmer Rouge tribunal, so if they go as witnesses, it would make the accused persons guilty.… How is justice to be done? My main problem is that turning the plaintiffs into witnesses would doom the accused”.134 Spokesperson for the Council of Ministers, Phay Siphan, added that in his opinion there was “enough proof already” and that is was “not necessary” for these people to testify.135 ECCC spokesperson Lars Olsen, in an unusually strong statement, said that “We would expect that any law-abiding citizen would comply with a summons issued by a court of law” and countered Hun Sen’s statement by adding
132 Marcel Lemonde, Un Juge Face aux Khmers Rouges (Paris: Seuil, 2013), 176. 133 Sebastian Strangio and Cheang Sokha, "Govt Testimony Could Bias KRT: PM," Phnom Penh Post, 9 October 2009. 134 Ibid. 135 Ibid. 147
“That would apply especially to any representative of organs that played a crucial role in setting up the ECCC”.136
The only one of the six to explain why he did not attend was Hor Namhong, who said in June 2010 that he had not responded because Lemonde “abused the law” by signing the summonses alone, not with his Cambodian counterpart.137 As I discuss in Chapter Five members of the government are quick to use the language of procedure if they think it will serve their purpose. The silence from those who had been called, and the lack of action taken to secure their appearance, caused the defence teams for Nuon Chea and Ieng Sary to lodge a request that the summonses be enforced.138 Theoretically, the Co- Investigating Judges have the right to use the judicial police to compel summoned witnesses to appear, but the likelihood of such coercive measures successfully securing the testimony of these government officials was close to zero, and Lemonde had concluded that securing these testimonies was “not feasible”.139 In justifying his decision not to enforce the summonses Lemonde argued that he did not want to “unduly delay” the court, and National Co-Investigating Judge You Bunleng said that it was not necessary to call these individuals in order to properly investigate the case.140 When the defence teams appealed this decision, and requested that You Bunleng be investigated for political interference given that he had opposed calling these witnesses, the Pre-Trial Chamber split along national and international lines as it often did over politically contentious decisions. Since no supermajority decision had been reached, no such investigation was ordered.141
Defence teams had also sought to have Hun Sen interviewed but the Co-Investigating Judges had concluded that he would not have any additional useful information, and Lemonde later characterised this request as “pure provocation”.142 To participate in the court proceedings, even as witnesses, would hold no benefit for government officials but would pose potential risks. Even if they did not appear in open court, being interviewed
136 Ibid. 137 Cheang Sokha and James O'Toole, "Minister Explains KRT Snub," Phnom Penh Post, 16 June 2010. 138 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Second Decision on Nuon Chea's and Ieng Sary's Appeal Against OCIJ Order on Requests to Summons Witnesses," Case File 002/20-10-2009-ECCC/OCIJ (PTC 50), D314/1/12, 9 September 2010. 139 James O'Toole, "Hor Namhong Should Testify at KRT: Rainsy," Phnom Penh Post, 22 March 2010. 140 Pre-Trial Chamber, "Second Decision on Nuon Chea's and Ieng Sary's Appeal Against OCIJ Order on Requests to Summons Witnesses," 9 September 2010, 6. 141 Ibid., 17. 142 Lemonde, Un Juge Face aux Khmers Rouges, 186. 148 on the basis of their Khmer Rouge participation risked damage to the decades of work government leaders had put into distancing themselves from their Khmer Rouge past.
Throughout trial hearings in Case 002, the role of current CPP leaders as potential witnesses has again been brought up, this time by the defence teams. They were seeking to have prominent politicians appear as witnesses during the trial. The most significant of the potential witnesses was Heng Samrin, the current and longstanding head of the National Assembly. Nuon Chea’s defence team claimed he was the highest ranking Khmer Rouge military official who was involved in the evacuation of Phnom Penh and was still alive.143 This forced evacuation was the primary focus of Case 002/01. Despite the potential value of his testimony about orders made in relation to the forced evacuation, the Trial Chamber refused to call him. During defence questioning of Nuon Chea he talked about first meeting Heng Samrin in 1959 and being regularly accompanied by him on trips to Vietnam. However, when his lawyers asked “Is it correct that Heng Samrin was a division commander in April 1975 and that he participated in the liberation of Phnom Penh?” the Trial Chamber president ruled the question irrelevant and refused to allow Nuon Chea to respond.144
The defence teams, both the lawyers and the defendants themselves, are well- accustomed to having their microphones cut off by judges when they raise issues that the court opposes. Questions related to the roles of Finance Minister Keat Chhon and Foreign Affairs Minister Hor Namhong during the Khmer Rouge regime, and why they had failed to obey a court summons, were silenced.145 Following a highly controversial and politically motivated verdict issued by the Phnom Penh Municipal Court, one of Nuon Chea’s lawyers, Andrew Ianuzzi, sought to table a newspaper report that he said spoke to “the abject failure of this Tribunal to have any effect on the appalling state of Cambodia’s municipal justice system”.146 When he referred to the same issue later that day and noted that it must be “embarrassing to be confronted with what your colleagues are up to across town” his microphone was cut off.147 Although the ECCC is explicitly in the courts of Cambodia, and this can be a source of pride for the Cambodian
143 Kevin Ponniah, "Nuon Chea Lawyers Fire Back," Phnom Penh Post, 23 October 2013. 144 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 29," Case File 002/19-09-2007-ECCC/TC, E1/41.1, 9 February 2012, 49-50. 145 Stuart White, "Cambodia's Leaders Called out at Khmer Rouge Court," Phnom Penh Post, 1 August 2012. 146 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 115," Case File 002/19-09-2007-ECCC/TC, E1/130.1, 4 October 2012, 58. These comments referred to the October 2012 conviction of radio station owner Mam Sonando. 147 Ibid., 69. 149 government, the court cannot afford to have its legitimacy tainted with explicit references to flaws in the domestic judiciary.
The defence teams also favoured bringing up historical events that could embarrass the current government. The so-called K5 plan was a policy of the People’s Republic of Kampuchea during the 1980s to create a barrier of mined and defended sections along the length of the Thai-Cambodia border, which hundreds of thousands of Cambodians were conscripted to construct. Evan Gottesman reports that it cost twenty-five to thirty thousand lives, largely from malaria-related deaths.148 The defence claimed to raise the issue because of the deaths that occurred in carrying out this project. The bodies, they suggested, perhaps buried in mass graves, could be wrongly attributed to the Khmer Rouge and thus to their clients.149 In one instance the International Co-Prosecutor objected to a question Ianuzzi put to a witness about K5 and when, in his response to this objection, Ianuzzi made reference to the responsibility of Hun Sen for that plan his microphone was cut off by the judges.150 Following another occasion when Ianuzzi was again prevented from asking questions about K5, he responded by saying that “if the Trial Chamber continues to work from a script, with cues and stage directions, these proceedings take on all the dignity of a very bad Gilbert and Sullivan”.151 The judges found him in contempt and ordered him to leave the court room for the day.152
Trials always produce silences, they make rules about what can and cannot be said, and they impose limits so that the focus remains on the guilt or innocence of the defendants. Heng Samrin’s significance to the ECCC seems undisputed, although the prosecution and defence have made different statements about what that significance is. A member of Nuon Chea’s defence team has argued that “Heng Samrin is the single most important witness in Case 002 overall and is in a completely different stratosphere to every other witness in the case,” arguing that he could provide evidence of a rebellion within the Khmer Rouge which is central to the defence’s case.153 Craig Etcheson, on the other hand, scholar of the Khmer Rouge and former investigator at the ECCC, said that Heng Samrin
148 Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (New Haven: Yale University Press, 2003), 236. 149 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 137," Case File 02/19-09-2007-ECCC/TC, E1/150.1, 7 December 2012, 76-78. 150 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 87," Case File 002/19-09-2007-ECCC/TC, E1/99.1, 31 July 2012, 77-78. 151 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 140," Case File 002/19-09-2007-ECCC/TC, E1/153.1, 13 December 2012, 64. 152 Ibid., 64-65. 153 George Wright, "Heng Samrin's Absence Leaves Holes at Tribunal," Cambodia Daily, 23 August 2016. 150
“would have been a very important witness” because he could have provided evidence of Nuon Chea’s link to policy decisions.154 Although he could have been a useful witness to the prosecution, it was more important that the ECCC’s legitimacy be preserved to ensure the acceptance of the guilty verdict. As Nuon Chea defender Victor Koppe argued, “Heng Samrin is the elephant in the room that the Co-Prosecutors and the civil parties dare not speak of”. 155 Prioritising the court’s reputation limits the prosecution’s willingness to admit to flaws or political interference at the court, and necessitates challenges to provocative defence strategies. In part this is a common feature of trials, the defence and prosecution object to the others’ questions, but at the ECCC it also renders the prosecution complicit with the government in enforcing the government’s preferred silences. It also, less controversially, aligns the prosecution with foreign governments who throughout the negotiation and conduct of the ECCC have been willing to accept Cambodian government control, and to do so quietly.
The Verdict Closing statements in Case 002/01 were heard in late 2013. The Co-Prosecutors argued that events during Democratic Kampuchea occurred according to a “policy disseminated through an organized structure and vigorously promoted to a loyal and disciplined force by these accused, Nuon Chea and Khieu Samphan, and other senior CPK leaders”.156 Their statements outlined “how the evidence in this case has proven that Nuon Chea and Khieu Samphan each played a unique and critical role in a criminal enterprise that prosecuted, tortured, and killed their fellow Cambodians, millions of innocent civilians, including women, children, the elderly and most vulnerable”.157
Nuon Chea’s defence team criticised the fairness of the proceedings saying that it had not been a trial as lawyers normally understand the term but had “instead been a showcase of the conclusions that everyone involved wanted and expected from the day the tribunal was constituted”.158 They further argued that even if the trial could be considered fair the evidence was “limited, inconsistent and confusing” and that events, particularly at Tuol Po Chrey, were not “in any way attributable” to Nuon Chea.159 The
154 Ibid. 155 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 224," Case File 002/19-09-2007-ECCC/TC, E1/237.1, 31 October 2013, 43. 156 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 217," Case File 002/19-09-2007-ECCC/TC, E1/230.1, 18 October 2013, 14-15. 157 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 216," Case File 002/19-09-2007-ECCC/TC, E1/229.1, 17 October 2013, 2-3. 158 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 219," Case File 002/19-09-2007-ECCC/TC, E1/232.1, 22 October 2013, 2. 159 Ibid., 4. 151
Khieu Samphan team associated themselves with what had been said by their other defence colleagues, and focussed significantly on criticising the Co-Prosecutors for straying far outside the severance order and distorting evidence. At one point international defence lawyer Arthur Verken was rebuked for comments asking “did they unwittingly hire a gang of tourists who were about to end their holidays in Cambodia… and who want to make a few dollars by donning their purple robes and offering their services to the tribunal?”160 The defence team also alleged that Khieu Samphan had very little authority during the regime, that he was overseas when decisions were taken about crimes covered by Case 002/01, and that there was “no possible way of proving [Khieu Samphan’s] criminal participation in this enterprise”.161 Both teams insisted that the only just outcome in accordance with the law was acquittal of their clients.
In August 2014 Nuon Chea and Khieu Samphan were found guilty of crimes against humanity and sentenced to life in prison. One observer called reaching this verdict a vindication for the decision to sever.162 The verdict was welcomed in a joint statement from the UN and the government which called it “a historic moment in international criminal justice”. 163 Hun Sen announced his satisfaction, and embassies and NGOs issued statements of support. Court spokesperson Lars Olsen said at a public event analysing the verdict that he was pleased news articles would no longer be able to say that the ECCC had so far only convicted one person. Defence teams expressed disappointment but not surprise, noting a “very strong bias against” their clients, and characterising the ECCC as “dogged by scandals” and making “decisions that are desperate”.164
A detailed report was released in November 2015 by the East-West Center that was highly critical of the Case 002/01 judgement, calling it “inadequate”, “poorly written” and “well below the standard of most of the other international criminal tribunals”.165 It
160 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 221," Case File 002/19-09-2007-ECCC/TC, E1/234.1, 25 October 2013, 24-25. 161 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 222," Case File 002/19-09-2007-ECCC/TC, E1/235.1, 28 October 2013, 122. 162 Open Society Justice Initiative, "Former Khmer Rouge Leaders Found Guilty of Crimes Against Humanity," https://www.opensocietyfoundations.org/press-releases/former-khmer-rouge- leaders-found-guilty-crimes-against-humanity, 7 August 2014. 163 "Full Text of Hun Sen's Remarks on Khmer Rouge Verdict," Cambodia Herald, 28 August 2014; "Joint Statement on Case 002/01 Judgement: Joint Statement by His Excellency Dr Sok An, Deputy Prime Minister and Minister in charge of the Office of the Council of Ministers and Mr. Stephen Mathias, Assistant Secretary-General for Legal Affairs of the United Nations," http://www.unakrt- online.org/articles/joint-statement-case-00201-judgement, 7 August 2014. 164 Stuart White and Cheang Sokha, "Guilty as Charged," Phnom Penh Post, 8 August 2014. 165 David Cohen, Melanie Hyde, and Penelope Van Tuyl, "A Well-Reasoned Opinion? Criticial Analysis of the First Case Against Alleged Senior Leaders of the Khmer Rouge (Case 002/01)," East-West Center, November 2015, 6. 152 criticised the severance for causing “protracted uncertainty” and considered that the issue of the legal responsibility of the defendants had “received lengthy, but deeply misguided, treatment”.166 The report alleged that the Trial Chamber excluded exculpatory evidence without justification whilst relying on questionable inculpatory evidence without any evident weighing of its credibility.167 As the report put it, “scattered throughout the meandering narrative of the Judgement, one finds questionable foundations in law, an extremely weak approach to factual findings, and a totally misguided application of law to facts”.168
A final ruling on the appeals against the Case 002/01 verdict is still forthcoming. Case 002/02 concerns a much broader array of crimes. It covers genocide against the Cham (a Muslim ethnic minority) and the Vietnamese, forced marriage and rape, internal purges, and a select group of security centres, worksites and cooperatives. Opening statements began in October 2014, although they were suspended until January 2015 following a defence boycott. Hearings are ongoing at the time of writing.
Cases 003 and 004
The most contentious aspect of the ECCC has been the dispute over the prospect of additional cases, and this dispute has now been running for over seven years. These cases have demonstrated the government’s ability to affect the outcome of the ECCC in contravention of the existing rules and procedures. Five additional suspects were proposed across two case: Case 003 and Case 004. In Case 003 the suspects were the Khmer Rouge’s air force and navy commanders and in Case 004 they were cadres who held positions at the district or zone level.169 The pursuit of these cases has been consistently opposed by the Cambodian judges at the ECCC. Substantive arguments against these cases focus on arguing that the suspects lie outside the ECCC’s personal jurisdiction and are coupled with procedural arguments that the international side of the court is not authorised to act alone. More significantly, Prime Minister Hun Sen has frequently stated his opposition to these cases. The lack of independence of the Cambodian judiciary means their opposition presumably stems from government instructions or indirect influence.
166 Ibid., 7, 41. 167 Ibid., 22, 52. 168 Ibid., 41. 169 One of the individuals identified, Sou Met, the Khmer Rouge air force commander, died in June 2013 without ever being officially named by the ECCC. Lauren Crothers and Phorn Bopha, "Khmer Rouge War Crimes Suspect Sou Met Dead," Cambodia Daily, 27 June 2013. 153
In December 2008 the International Co-Prosecutor Robert Petit filed a disagreement with his Cambodian counterpart to the Pre-Trial Chamber about opening new judicial investigations.170 In a joint statement, the International Co-Prosecutor argued that since there was reason to believe that these crimes occurred and were within the jurisdiction of the court they should be investigated. He argued further that doing so would lead to a broader understanding of the Democratic Kampuchea regime and would not threaten the peace or stability of Cambodia. In contrast, the National Co-Prosecutor Chea Leang argued that these additional suspects should not be investigated because of the need for national reconciliation, and because the existing cases adequately fulfilled the mandate of the ECCC, particularly in light of the limited duration and budget of the court. She also believed that pursuing these extra cases would go against the spirit of the ECCC law and the agreement between the Cambodian government and the UN.171 At the time, Minister of Information Khieu Kanharith criticised the foreign judges at the court for supporting these additional cases, arguing "Because [foreign judges] have a lot of money, they can afford to drag their feet.... The longer they drag their feet, the more money they get”.172 This statement would not sway the opinion of the international judges but it might have mitigated the impact of the dispute for foreign governments and a domestic audience.
In September 2009 the Pre-Trial Chamber announced that it had failed to achieve a four vote supermajority decision on the Co-Prosecutor’s disagreement. 173 Starting a consistent pattern, the national judges voted against pursuing the cases and the international judges voted in favour. In her filing National Co-Prosecutor Chea Leang had argued that "ex-members and those who have allegiance to Khmer Rouge leaders may commit violent acts" if there are more investigations.174 She stated her position that the suspects referred to in these additional submissions were not senior leaders or those most responsible, that the ECCC proceedings had not led to unrest only because of the public perception that it had a limited mandate, and that it was up to prosecutors to bring cases
170 Six suspects were contained in these submissions but before the Pre-Trial Chamber adjudicated on the dispute the International Co-Prosecutor withdrew one submission as “having conducted an investigation, he was satisfied with the evidence that the suspect was dead”. Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Consideration of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71," Disagreement Number 001/18-11-2008-ECCC/PTC, 18 August 2009, 3. 171 Extraordinary Chambers in the Courts of Cambodia, "Statement of the Co-Prosecutors," 5 January 2009. 172 Neth Pheaktra and Georgia Wilkins, "Judges Should Focus on Current KR Suspects: Govt," Phnom Penh Post, 12 March 2009. 173 Pre-Trial Chamber, "Consideration of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71," 18 August 2009. 174 Ibid., 14. 154 that are in “the public interest of the Cambodian society”.175 The national judges, in supporting the National Co-Prosecutor’s position, did not refer to her arguments relating to the ECCC’s mandate or to the impact on Cambodian society, instead focussing on procedural matters. Since the preliminary investigations had been conducted unilaterally by the international side of the Office of the Co-Prosecutors, they reasoned, the investigation was invalid. Additionally they argued that the facts contained in these additional cases were already covered by Case 002 which they considered all-inclusive of crimes committed during the Democratic Kampuchea regime. Therefore these new submissions were not needed.176
The international judges of the Pre-Trial Chamber chose to address only those grounds covered by their national colleagues. They considered that the manner in which the investigation was conducted was not part of the disagreement filed and that the knowledge of the National Co-Prosecutor regarding the preliminary investigation was not relevant. They took a narrower view of the Co-Prosecutor’s submission that had led to the Cases 001 and 002 investigations, and noted that these additional submissions contained a number of new elements, despite some overlapping facts and crime sites with existing investigations. On these grounds they voted that these new submissions should be forwarded to the Co-Investigating Judges.177 Although the arguments of the National Co-Prosecutor may have been closer to the reasons the national judge opposed the cases, it was safer to argue on procedural grounds which were further removed from political implications. In the absence of a supermajority vote to block the case, it continued to the investigative stage.
Predictably, Hun Sen reacted strongly against the prospect of additional prosecutions, whilst occasionally seeming to remember that he was supposed to respect the court’s independence. He said that “If the court wants to charge more former senior Khmer Rouge cadres, the court must show the reasons to Prime Minister Hun Sen,” whilst asserting that his concern was for “the peace of the nation” and that he does “not affect the court issue”.178 Adding colour to his argument, he stated “Now, if you try the former Khmer Rouge leaders without thinking of peace and national reconciliation, war will happen again, killing 200,000 to 300,000 more, and who will be responsible for this?”179 Further statements were made by, for example, then-President of the Senate Chea Sim
175 Ibid. 176 Ibid., 21-31. 177 Ibid., 32-42. 178 Chun Sakada, "Hun Sen, Researcher in Row Over Indicments," VOA Khmer, 7 September 2009. 179 Ibid. 155 who said the government would oppose attempts to use the ECCC for “ill-intentions that would have an impact on peace, national reconciliation and development, which are our hard-won achievements”.180
These statements were a warning to international audiences about what the government would allow and the lines the court would not be allowed to cross. Although more confrontational than the procedural arguments offered by the national judges, these statements touch on the idea that it is internationally acceptable to design a transitional justice mechanism with national stability in mind. These considerations would normally figure into the creation of the mechanism rather than its operation but were more palatable than talking about protecting certain suspects. Domestically, these arguments reasserted government control over the issue of the Khmer Rouge, with the Cambodian People’s Party seen as the only political force capable of preventing a return to violence and civil war in Cambodia. As he did after most such statements, ECCC spokesperson Lars Olsen said that the court was independent and that they “do not seek approval or advice from lawmakers or people from the executive branch”.181 These responses have become pro forma in dealing with government interference; although they do nothing to change the reality of government influence they are nonetheless necessary to defend the idea of the court’s independence for the sake of its international legitimacy.
As the Co-Investigating Judges were working to complete Case 002, the next mention of these additional submissions, now designated Case 003 and Case 004, was in June 2010. Lemonde called on You Bunleng to sign a rogatory letter which would authorise investigations in Cases 003 and 004 and stated that if it had not been signed by the end of the week he would conclude that there was a disagreement that he would lodge with the Pre-Trial Chamber. Judge You signed this letter on the Friday but withdrew his signature over the weekend after allegedly reconsidering the matter. He wrote in a letter released by the ECCC that he had considered the general principles of justice, the principles that underlay the establishment of the ECCC, and the current state of Cambodian society and that he had decided it was appropriate to take action in Cases 003 and 004. However, he stated that whilst he did originally sign the letter, with “deeper and more attentive consideration” he had decided that it was better to forestall any discussion of additional cases until after issuing the closing order in Case 002 in
180 Vong Sokheng, "Chea Sim Warns KRT Against 'Ill Intentions'," Phnom Penh Post, 8 January 2010. 181 Ibid. 156
September 2010.182 Lemonde stated that he never found out whether You Bunleng had received specific instructions to withdraw his signature or whether he had just feared the consequences, but in his memoir he compared these cases to a live grenade being passed from hand to hand.183
Neither Co-Investigating Judge could have been in doubt about the government’s position. Following an October 2010 meeting between Hun Sen and UN Secretary- General Ban Ki-Moon, Foreign Minister Hor Namhong told reporters that the Prime Minister had “clearly affirmed that Case 003 will not be allowed…. The court will try the four senior leaders successfully and then finish with Case 002”.184 This statement is perhaps the most blatant of all about government control over the fate of Cases 003 and 004. Despite this opposition from the Prime Minister and the related recalcitrance of his national counterpart, International Co-Investigating Judge Lemonde began collecting witness statements for the investigation of Cases 003 and 004.
Lemonde resigned in September 2010 and was replaced three months later by German reserve judge Siegfried Blunk. Judge Blunk turned out to have an attitude to Cases 003 and 004 that was far more amenable to the government, which showed there was not necessarily a strict dichotomy between the national and international judges. In February 2011 the National Co-Investigating Judge said he was working on the investigations into Cases 003 and 004 with his international counterpart, which had not been the case during Lemonde’s tenure.185 However, the day after this report the Co- Investigating Judges released a statement making clear that they were working in “the spirit of cooperation” but that at this stage they were “focused on examining and analyzing the documents available on the Case Files, particularly the existing documents in the previous Case Files 001 and 002” and that “no field investigation is being conducted”.186 They seemed keen to correct any implication that Cases 003 and 004 were being actively investigated in a way the government might find threatening. Very little information about the cases was forthcoming. In April 2011 the Co-Investigating Judges announced that they were closing the investigation into Case 003. They had refused requests from the Defence Support Section to assign a lawyer to the suspects, and
182 Extraordinary Chambers in the Courts of Cambodia, "Statement from the Co-Investigating Judges," 9 June 2010. 183 Lemonde, Un Juge Face aux Khmers Rouges, 195-96. 184 Cheang Sokha and James O'Toole, "Hun Sen to Ban Ki-moon: Case 002 Last Trial at ECCC," Phnom Penh Post, 27 October 2010. 185 Sam Rith and James O'Toole, "Cambodian KRT Judge at Work on New Cases," Phnom Penh Post, 1 February 2011. 186 Extraordinary Chambers in the Courts of Cambodia, "Statement from the Co-Investigating Judges Regarding Case Files 003 and 004," 2 February 2011. 157 subsequently rejected the International Co-Prosecutor’s request for additional investigations on the procedural ground that in their view he could not request them without his national counterpart.187
International organisations reacted against these actions, which one trial monitor called a “charade” amongst allegations that staff had stuffed the Case 003 file with documents from Case 002 to give the impression that an investigation had been conducted.188 A number of international staff and consultants in the Office of the Co-Investigating Judges resigned. Following mounting criticism, Blunk resigned in October 2011. Citing examples of government statements about Cases 003 and 004 he stated:
Although the International Co-Investigating Judge will not let himself be influenced by such statements, his ability to withstand such pressure by Government officials and to perform his duties independently could always be called in doubt, and this would also call in doubt the integrity of the whole proceedings in Cases 003 and 004. Because of these repeated statements, which will be perceived as attempted interference by Government officials with Cases 003 and 004, the International Co-Investigating Judge has submitted his resignation to the Secretary-General as of 9 October 2011.189 A statement issued by the government’s Press and Quick Reaction Unit called Blunk’s resignation a “serious blow to the Court”. It rejected the idea that the government interfered in the investigations, saying that Blunk had continued his work after the statements he alleged showed government interference. Calling Blunk’s resignation a “complete volte-face from mutual collaboration” it attributed the resignation to “a sustained campaign by international organisations… alongside persistent media interference… that have long opposed the ECCC”, adding that Blunk “has bowed to their wishes and handed a victory to this long-standing campaign”.190
187 Extraordinary Chambers in the Courts of Cambodia, "Press Release - Defence Support Section: Upholding International Standards Defence Support Section Appoints Counsel to Represent the Interests of the Suspects in Cases 003 and 004," 30 November 2010; Extraordinary Chambers in the Courts of Cambodia, "Press Release: Statement Regarding Legal Counsel," 30 November 2010; Office of the Co-Investigating Judges, Extraordinary Chambers in the Courts of Cambodia, "Decision on Time Extension Request and Investigative Requests by the International Co- Proseuctor Regarding Case 003," Case File 003/07-09-2009-ECCC/OCIJ, D20/3, 7 June 2011. In general the international judges at the court recognise the ability of one judge to act alone whilst the national judges assert that a formal disagreement must be filed over every disputed action. 188 James O'Toole, "Case 003 Deemed a 'Charade'," Phnom Penh Post, 2 May 2011; Open Society Justice Initiative, "Recent Developments at the Extraordinary Chambers in the Courts of Cambodia," https://www.opensocietyfoundations.org/reports/recent-developments- extraordinary-chambers-courts-cambodia-june-2011, June 2011, 11. 189 Extraordinary Chambers in the Courts of Cambodia, "Press Release by the International Co- Investigating Judge," 10 October 2011. 190 "Statement of the Spokesperson of the Press and Quick Reaction Unit of the Office of the Council of Ministers," No. 013/PRU/S/2011, 13 October 2011. 158
In light of Blunk’s resignation, Reserve International Co-Investigating Judge Laurent Kasper-Ansermet arrived to take up his post in December 2011. Even before his arrival in Phnom Penh he was causing a stir, with the government refusing to recognise him as Blunk’s replacement. The government insisted that it was up to the Supreme Council of the Magistracy to appoint him before he could act. The UN, on the other hand, considered the role of the Supreme Council of the Magistracy to be a mere formality and not a chance for the government to make decisions about the international judges at the court. At issue was Kasper-Ansermet’s twitter account, as a reflection of his views on Cases 003 and 004. He had tweeted links to documents critical of how the cases were unfolding, although he had later also linked to the views of the Co-Investigating Judges and National Co-Prosecutor Chea Leang. National Co-Investigating Judge You Bunleng refused to recognise any action by, or communication from, Kasper-Ansermet because he was not “legally accredited to act”.191 Two days after the UN expressed its concern at the delays on 11 January 2012, the Supreme Council of the Magistracy met to consider his appointment.192 Finding that his tweeting had violated judicial ethics and the ECCC’s internal rules by compromising the confidentiality of the five suspects (whose identities had been widely reported but were still technically confidential) and by criticising his colleagues, the members of the Supreme Council of the Magistracy (including National Co-Investigating Judge You Bunleng and National Co-Prosecutor Chea Leang) voted not to appoint Kasper-Ansermet.193 The UN called this “a matter of serious concern” and a “breach” of the Agreement, with UN Special Expert to the Khmer Rouge Tribunal David Scheffer saying Kasper-Ansermet “has clear authority to fulfil” his role.194
Despite government opposition Judge Kasper-Ansermet attempted to perform his duties and reopened Case 003. He lodged two disagreements between himself and Judge You with the Pre-Trial Chamber but in a vast breach of procedure the President of the Pre- Trial Chamber, Judge Prak Kimsan, returned them to Kasper-Ansermet without a reasoned decision saying the judges had not “reached their consent to take into their consideration the substance of those documents”.195 Kasper-Ansermet reasoned that in
191 Mary Kozlovski and Vong Sokheng, "Delay in Appointing Judges Worries UN," Phnom Penh Post, 12 January 2012. 192 Ibid. 193 "Summary Report of the Meeting of the Supreme Council of the Magistracy," Agence Kampuchea Presse, 28 January 2012. 194 "Statement Attributable to the Spokesperson for the Secretary-General on Cambodia," 20 January 2012; David Boyle, "UN Holds Firm on Judge," Phnom Penh Post, 26 January 2012. 195 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Interoffice Memorandum: Returning the Documents Communicated to the Pre-Trial Chamber by the Office of Administration," 3 February 2012. 159 the absence of a supermajority decision the action in dispute should proceed. Hence he issued a public order to resume investigations in Case 003, but also expressed his concerns over the actions of Judge Prak Kimsan and sought his disqualification from any decisions related to Cases 003 and 004.196
Kasper-Ansermet also sought to involve members of the CPP in the investigation in Case 003. In documents obtained by an Australian newspaper, Kasper-Ansermet named President of the Senate Chea Sim, President of the National Assembly Heng Samrin, Senator Ouk Bunchhoeun, and chief of the army Pol Sareoun as key witnesses in crimes committed against Vietnamese civilians along the border.197 The International Co- Investigating Judge invited the Co-Prosecutors to file a supplementary submission into these crime sites. The Co-Prosecutors released a statement shortly after these documents became public, making clear that the International Co-Investigating Judge had not expressed an opinion that these four individuals were within the jurisdiction of the ECCC, and “respectfully declined” to follow through on the invitation to file a supplementary submission.198 It seems the Co-Prosecutors office did not want to become embroiled in the increased public dispute involving Kasper-Ansermet and his confrontation of the government. After a few months of concerted efforts, Kasper- Ansermet found his position untenable and announced in March 2012 that he was resigning with effect from 4 May.
The international judges of the Pre-Trial Chamber released their own reasoned opinion on the admissibility of the documents and included a note on the problems with the actions of Judge Prak. “[W]e communicated by a memorandum to the Acting Director of the Office of Administration, copying the National Judges of the Pre-Trial Chamber, informing him that the memorandum signed by the Pre-Trial Chamber’s President forwarding back the documents pertaining to the Disagreement was issued prior to informing the International Pre-Trial Chamber Judges, and that the Pre-Trial Chamber had yet to complete deliberations. The memorandum also noted that the communication by Judge Prak did not represent the opinion of or a decision of the full Pre-Trial Chamber and amounts to a breach of confidentiality by a disclosure of the opinion of some of its judges prior to the conclusion of deliberations. The memorandum concluded that Judge Prak’s memorandum had no legal effect on the outcome of the Disagreement cases, and in the event that at the end of its deliberations the Pre-Trial Chamber does not reach a majority of votes for its decisions on these cases, the judges shall, as required by law, append their opinion to the considerations of the full Pre-Trial Chamber”. Pre- Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Opinion of Pre-Trial Chamber Judges Downing and Chung on the Disagreement Between the Co-Investigating Judges Pursuant to Internal Rule 72," Case File 004/19-01-2012-ECCC/PTC, 23 February 2012, 7. 196 Extraordinary Chambers in the Courts of Cambodia, "Press Release by the International Reserve Co-Investigating Judge," 28 March 2012. 197 "Cambodian Officials Named Over Khmer Rouge Genocide," Sydney Morning Herald, 3 June 2012. 198 Extraordinary Chambers in the Courts of Cambodia, "Public Statement by the Co-Prosecutors Regarding Investigation in Case 003," 5 June 2012. 160
Shortly after announcing his resignation, Kasper-Ansermet released a note detailing “egregious dysfunctions” at the ECCC.199 He catalogued a series of examples of non- cooperation by national staff: international investigators being denied access to drivers and transcribers, refusals to place documents on the case file without You Bunleng’s permission, a dispute over access to the rubber stamp with the seal of office for the Co- Investigating Judges, and non-compliance when he attempted to investigate national employees for interference with the administration of justice. Before leaving, Kapser- Ansermet also filed a complaint to the Supreme Council of Magistracy about You Bunleng’s conduct, calling it “unworthy of a representative of the judiciary”, and announced that he had conducted field investigations, informed the suspects of their rights, and attempted to grant them access to the case file.200
Kasper-Ansermet’s replacement, Mark Harmon, was not disputed by the government and hence was appointed easily. He continued the investigative work on Cases 003 and 004 throughout 2014. In early March 2015 he charged Im Chaem and Meas Muth in absentia. They were each charged with homicide and crimes against humanity, and Meas Muth was additionally charged with war crimes. Im Chaem was alleged to have been the Secretary in the Preah Net Preah District in the Northwest Zone and was charged with crimes committed at a security centre and a worksite. Meas Muth was the commander of the Democratic Kampuchea navy and was the only suspect in Case 003 following the death of commander of the Democratic Kampuchea air force, Sou Met, in June 2013.201 Later in March a third suspect, Ao An, Deputy Secretary of the Central Zone, appeared in person to be charged with homicide and crimes against humanity.202 The final Case 004 suspect, Yim Tith, was charged in person in December 2015 with genocide against the Khmer Krom, crimes against humanity, war crimes, and homicide in relation to his role as Acting Secretary of the Northwest Zone.203 By charging these people the International Co-Investigating Judge allowed their lawyers access to the case file and the right to request investigative actions. It was also the first time that the identities of the suspects
199 Office of the Co-Investigating Judges, Extraordinary Chambers in the Courts of Cambodia, "Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions Within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004," Case Files: 003/07-09-2009-ECCC-OCIJ and 004/07-09-2009-ECCC-OCIJ, D114, 21 March 2012. 200 Bridget Di Certo, "Judge Alleged Misconduct," Phnom Penh Post, 28 May 2012; Extraordinary Chambers in the Courts of Cambodia, "Press Release of the Reserve International Co-Investigating Judge," 4 May 2012. 201 Crothers and Bopha, "Khmer Rouge War Crimes Suspect Sou Met Dead," 27 June 2013. 202 Shaun Turton, "Second Case 004 Suspect Charged," Phnom Penh Post, 27 March 2015. 203 Extraordinary Chambers in the Courts of Cambodia, "Mr Yim Tith Charged in Case 004," http://eccc.gov.kh/en/articles/mr-yim-tith-charged-case-004, 9 December 2015. The Khmer Krom are an ethnic Khmer group from Southern Vietnam. 161 in Cases 003 and 004 had been officially confirmed by the ECCC, although their names had been known since at least 2011.204
In discussing the decision to charge Im Chaem and Meas Muth in absentia, court spokesperson Lars Olsen said “it has not been possible, within a reasonable time, to get any arrest warrants executed”.205 It later emerged that Meas Muth had failed to appear when summoned to an initial appearance in December 2014 and so the International Co- Investigating Judge had issued a warrant for his arrest. The head of security at the tribunal said they had received the arrest warrant from Judge Harmon “but we requested from them some time to study [it]”.206 When Meas Muth’s lawyers applied to the Pre- Trial Chamber to suspend the arrest warrant the decision split as usual, so the warrant remained in effect. The national judges argued that arresting Meas Muth would be “humiliating” and would affect his “honour, dignity and rights substantially and irremediably”.207 Meas Muth was later charged in person by Judge Michael Bohlander, who took over the position of International Co-Investigating Judge in August 2015. Four months after taking office Bohlander travelled to Battambang to charge Meas Muth and added genocide against an unspecified group to the charges.208 Meas Muth was not placed in detention but since he had now presented himself to be charged in person the arrest warrant was rescinded. The refusal of ECCC security to execute the arrest warrant, and the national judges’ endorsement of this decision, no longer relied on procedural justifications as had earlier obstructions to Cases 003 and 004. Instead, they blatantly disregarded procedure and legal reasoning. It seems that the national side of the court was more confident in its ability to stall these cases in whatever way was necessary, without invoking much international criticism.
204 The Introductory Submissions that formed the basis of Cases 003 and 004 were leaked by a website based in New Zealand and reported by various media outlets. The Co-Investigating Judges commenced contempt of court proceedings against Voice of America Khmer for releasing confidential information but were criticised for the selectivity of pursuing this one local media outlet when it was neither the first nor only media report based on the same confidential information. Open Society Justice Initiative, "Recent Developments at the Extraordinary Chambers in the Courts of Cambodia," https://www.opensocietyfoundations.org/reports/recent- developments-extraordinary-chambers-courts-cambodia-november-2011, November 2011, 19-20; Extraordinary Chambers in the Courts of Cambodia, "Statement from the Co-Investigating Judges Regarding Contempt of Court Proceedings Against Voice of America," 31 August 2011. 205 Stuart White and May Titthara, "Khmer Rouge Duo Charged," Phnom Penh Post, 3 March 2015. 206 Taing Vida, "Gov't 'Not Meddling at KRT'," Phnom Penh Post, 27 March 2015. 207 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Considerations of the Pre-Trial Chamber on Meas Muth's Urgent Request for a Stay of Execution of Arrest Warrant," Case File 003/07-09-2009-ECCC/OCIJ (PTC23), C2/4, 23 September 2015, 7. 208 George Wright and Saing Soenthrith, "Meas Muth Faces Charges Including Genocide," Cambodia Daily, 15 December 2015. 162
At the time of writing the investigations are ongoing but it is highly unlikely that Cases 003 and 004 will proceed to trial.209 Government opposition to the cases has been consistent and entrenched whilst the UN initiative has been listless and its support for the international judges minimal.210 Government officials often cite the risk of renewed civil war as the reason for opposing Cases 003 and 004 but few people outside the government consider that risk to be realistic. Former Khmer Rouge-controlled areas have been integrated with the rest of the country for nearly twenty years, and the cases would involve the prosecution of only four additional people. These cases have also been known to the public for more than five years with no threats of violence in response to the naming or charging of these individuals.
The government has several apparent reasons for opposing Cases 003 and 004. Part of its opposition relates to protecting these specific individuals. Im Chaem held local government positions for the CPP in the Khmer Rouge stronghold of Anlong Veng until 2012, Ao An is a wealthy business man, and Meas Muth was an advisor to the Ministry of Defence at the time the ECCC was being negotiated. Their testimony may also implicate others in powerful positions. More broadly concerning to the government are the number of people who can be considered to have a similar level of culpability for Khmer Rouge era crimes: some of these are now members of the government or the armed services, or have strong connections to them. From the perspective of the historical narrative, these additional suspects have never featured in the government’s account of who is responsible, a narrative which has always focused on national leadership rather than on the regional positions most of these suspects held. The suspects themselves appear confident they will not be tried at the court, with Meas Muth telling a journalist “I have nothing to worry about” and Im Chaem saying “I'm happy because I feel protected by the government, especially Prime Minister Hun Sen".211
National judges at the ECCC have attempted to block the additional cases using language that mimics the government’s rhetoric or that relies on procedural justifications. Although the international staff are continuing to pursue these investigations, there has been no strong objection to the government’s actions, nor support from donor countries or UN officials for judges to conduct their work
209 The first test in how these cases will be dealt with is Im Chaem. The case against her was severed into Case 004/01 to avoid delays in a determination of her case. The Co-Investigating Judges are expected to issue a closing order for her case in the first quarter of 2017. 210 Long Panhavuth, interview with the author, 13 December 2014, Phnom Penh. 211 Julia Wallace, "Scenes From a Khmer Rouge Trial Gone Wrong," The Atlantic, 21 September 2011; Robbie Corey Boulet, "Tribunal Moves on Additional Inquiries," Phnom Penh Post, 3 September 2009. 163 independently. Some donors have expressed a reluctance to continue to fund the court so many years after its original mandate for the prosecution of suspects who are not internationally known.212 Procedurally, it is no better for foreign governments or the UN to interfere to influence the court’s decisions than it is when the Cambodian government does so. However, it is often seen, by the same international actors at least, as more acceptable because it can be framed as the pursuit of justice or as counteraction after Cambodian government interference. If Cases 003 and 004 are not taken to the trial stage a legal justification must be proffered; procedures at the ECCC need to be seen to be preserved. One suggestion to avoid dismissing the cases solely on the basis of political and financial concerns has been that these cases could be transferred to the national jurisdiction.213 Although perhaps preserving something of the ECCC’s procedural justice requirements, government opposition means that transferring the cases would be equivalent to abandoning them.
Outreach and Victims
Throughout this chapter I have made little reference to the engagement of victims or the Cambodian population more generally in the work of the ECCC. In brief, this omission is because it was not a priority for the Cambodian government which displays little interest in how the court is regarded domestically. Nonetheless the government had negotiated a strongly domestic mechanism which had potential benefits for victims, particularly the court’s location in Phnom Penh. In this section I consider the ECCC’s innovative civil party system, the outreach program, public opinion of the court, and other projects related to the Khmer Rouge past that have been spawned by the ECCC’s existence. These outcomes of the court might not have been anticipated, worked towards, or necessarily desired by the Cambodian government but that does not mean they had no impact.
Neither the UN agreement nor the law establishing the ECCC called for the participation of civil parties. Their generally welcome presence stems from the existing Cambodian civil law system. Although the participation of civil parties has often been lauded as an innovation, there was a lack of planning as to how to incorporate civil parties into trials for crimes of such scale, and few resources allocated to do this work. In Case 001 the ninety civil parties were grouped primarily on the basis of which NGO had facilitated
212 Ciorciari and Heindel, Hybrid Justice, 101. 213 Open Society Justice Initiative, "The Future of Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia," October 2012, 17-18. 164 their applications, and each group was represented by separate lawyers.214 Civil party participation was often repetitive of the prosecution or of other civil party lawyers, and it raised questions of equality of arms with the prosecution team and civil party lawyers arrayed against the defence teams.215 The process was necessarily streamlined for Case 002 which had nearly four thousand civil parties. All work in this case was now coordinated by Civil Party Lead Co-Lawyers.216 Although this new system limited the ability for the lawyers to fully represent civil parties with conflicting interests, it was a compromise of victim rights for the sake of trial efficiency. With ageing defendants, and civil parties, the priority for the court and for many victims was securing a verdict before the suspects’ deaths ended the case.
A key aspect of civil party participation in the ECCC is the right “to seek collective and moral reparations”.217 The reparations are limited because the scale of the crimes makes individual reparations impractical, each of the accused has been declared indigent, and the Trial Chamber found that it had no jurisdiction to order the Cambodian government to take certain measures or to secure funding for reparations from other sources.218 The civil parties in Case 001 had requested a range of reparations including: access to free medical care, funding of an educational program about the Khmer Rouge regime and S- 21 in particular, erection of memorials at S-21 and in local communities, a fund to provide vocational training and micro-loans to civil parties, a national commemoration day, and the preservation of the S-21 buildings and archive.219 The Trial Chamber rejected all of these claims as outside the scope or competence of the ECCC and granted only two of the requests made: including the names of civil parties and their affected relations in the judgement, and publishing a compilation of Duch’s statements of apology.220 One of the civil party lawyers called this ruling “really the most minimal, most conservative, and perhaps it’s fair to say unimaginative that could have been ordered”.221
214 Johanna Herman, "Realities of Victim Participation: The Civil Party System in Practice at the Extraordinary Chambers in the Courts of Cambodia," Contemporary Justice Review 16, no. 4 (2013): 465. 215 Elisa Hoven, "Civil Party Participation in Trials of Mass Crimes: A Qualitative Study at the Extraordinary Chambers in the Courts of Cambodia," Journal of International Criminal Justice 12, no. 1 (2014): 86. 216 Extraordinary Chambers in the Courts of Cambodia, "7th Plenary Session of ECCC Concludes," https://www.eccc.gov.kh/en/articles/7th-plenary-session-eccc-concludes, 9 February 2010. 217 Extraordinary Chambers in the Courts of Cambodia, "Internal Rules," 12 June 2007. 218 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Judgement," Case File 001/18-07-2007/ECCC/TC, E188, 26 July 2010, 239. 219 Ibid., 234-36. 220 Ibid., 240-43. 221 James O'Toole, "Reparations Remain a Key Issue," Phnom Penh Post, 27 July 2010. 165
Given the disappointment at the meagre reparations measures, the ECCC established a new system whereby the Civil Party Lead Co-Lawyers can “request the Trial Chamber to recognize that specific reparations measures, designed or identified in coordination with the Victims Support Section, are appropriate for implementation using external resources”.222 Accordingly, the Case 002/01 judgements included the ECCC’s endorsements for a National Remembrance Day, provision of therapy for victims, historical exhibitions, public memorials, and publications on Case 002/01 and civil party participation.223 In Cases 003 and 004 decisions related to civil parties have split predictably: judges who favour pursuing these cases seek to admit civil parties and judges that oppose these cases have rejected applicants who were accepted in Cases 001 and 002 on exactly the same grounds.224
The civil parties act as representative victims for the court in a country where almost everyone who lived through the Khmer Rouge period considers themselves to be a victim, as do half of people born after 1979.225 Their participation is meant to incorporate the voices of the victims in the trial process. Civil parties have the most direct interaction with the work of the ECCC and are the people who chose to be most engaged but there is evidence of their growing disillusionment. The ECCC website heralded a report published by local NGO ADHOC and Harvard University in 2013 which indicated “that Civil Parties have a largely favorable impression of the ECCC and the ongoing proceedings”.226 However, the coordinator of ADHOC’s tribunal project noted that it was based on a survey conducted in 2011 and that by the time the results were reported “only a few” civil parties continued to be satisfied with the court’s work, particularly because of
222 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Case 002/01 Judgement," Case File 002/19-09-2007/ECCC/TC, E313, 7 August 2014, 598. A sub-committee of the Rules and Procedures Committee at the ECCC also recommended that the Trial Chamber be empowered to make non-binding recommendations to the Cambodian government but this proposal was rejected by the plenary session. Extraordinary Chambers in the Courts of Cambodia, "Eighth ECCC Plenary Session Concludes," https://www.eccc.gov.kh/en/articles/eight-eccc-plenary- session-concludes, 17 September 2010. 223 The Trial Chamber also rejected two projects because one was not planned in sufficient detail and neither had secured full funding at the time of the judgement. Trial Chamber, "Case 002/01 Judgement," 7 August 2014, 597-622. 224 Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant Robert Hamill," Case File 003/07-09-2009-ECCC/OCIJ (PTC 02), D11/2/4/4, 24 October 2011. 225 Pham et al., "So We Will Never Forget," 24. This study surveyed people eighteen years and older in 2008 so the figure of Cambodians born after the Khmer Rouge who consider themselves to be victims of the Khmer Rouge regime is likely to be lower with younger generations born longer after 1979, and therefore decreasing in general. 226 Extraordinary Chambers in the Courts of Cambodia, "Civil Party Survey: 74.5% Says ECCC is Doing Enough for Victims," https://www.eccc.gov.kh/en/blog/2013/04/26/civil-party-survey-745- says-eccc-doing-enough-victims, 26 April 2013. 166 how long proceedings had taken.227 Just as the court has lost defendants to old age, so too have many civil parties passed away during the course of the ECCC’s existence.228 A group of two hundred civil parties, claiming to represent the interests of many others, protested outside the court during opening statements in Case 002/02. They derided the court’s reparation scheme as only benefitting the ECCC and NGOs, and demanded US$13,500 each as individual compensation for harms of the Khmer Rouge regime.229 Although this position is not universally held amongst the civil parties, the protest indicated growing disenchantment with the ECCC’s work amongst those who had earlier been the most optimistic and engaged.230
Similar trends have been observed amongst the Cambodian population generally; there was an initial period of growing knowledge about the ECCC but over the course of its operation also growing disinterest and disillusionment as trials dragged out over many years. In the early life of the court there was very little funding for the Public Affairs Section. Until 2009, most outreach activities were conducted by NGOs. Thereafter, the focus for the ECCC seems to be on the quantity of victim engagement. The court pays to bus people in from around the country to observe proceedings for the day. On some days this may be emotive testimony but on many days the proceedings are dominated by detailed factual or legal debates devoid of broader context. Rather than seeking to foster dialogue or to disseminate neutral information about the court’s work, the Public Affairs Section operates more as a public relations office for the court; a distinction which becomes most evident when issues of political significance arise.231 National and international spokespeople have issued contradictory statements, particularly relating to controversial issues.232 Very little outreach work has been conducted regarding Cases 003 and 004. Information has largely been released by the International Co-Prosecutor or the International Co-Investigating Judge about which crime sites are being investigated, information which is necessary to file as a civil party. The Public Affairs Section is largely staffed by Cambodians and focuses on promoting a positive perception of the ECCC, which is harder to do in relation to these disputed cases.
227 Stuart White and Cheang Sokha, "Civil Parties' Opinions Shift," Phnom Penh Post, 30 April 2013. 228 Stuart White, "Age an Issue for KRT Civil Parties Too," Phnom Penh Post, 21 March 2013. 229 This figure was derived from the money given by the government to families of victims who died during a stampede on a bridge on Koh Pich. Pech Sotheary, "KRT Civil Parties Say Reparations Benefit NGOs, Not Victims," Phnom Penh Post, 17 October 2014; Stuart White, "Khmer Rouge Accused Pledge to Boycott Trial," Phnom Penh Post, 18 October 2014. 230 White and Sokha, "Civil Parties' Opinions Shift," 30 April 2013. 231 Long Panhavuth, interview by author, 13 December 2014, Phnom Penh. 232 Ciorciari and Heindel, Hybrid Justice, 244-45. 167
Surveys of public knowledge and perceptions of the ECCC were conducted in the early years of its operation, although in recent years research has focussed more on the experiences of only the civil parties. In a survey conducted at the end of 2008, 85% of respondents had no or only a little knowledge about the ECCC and only 3% could identify the five people who were being detained.233 In a follow-up survey conducted in late 2010 67% of people knew the ECCC was a mixed court but only 11% could name the five people detained or on trial.234 This survey was conducted after the Duch trial which was also used to gauge public knowledge: 70% of people said they did not know how long Duch’s sentence was, and only 12% answered the question correctly.235 This figure was higher amongst civil parties in Case 001, of which 51% could correctly identify his sentence, but low considering the extra resources and attention paid to civil parties.236 There were high expectations amongst the surveyed population sample with between 76% and 82% agreeing that the ECCC will promote national reconciliation, help rebuild trust, and bring justice to Khmer Rouge victims and their families.237 However, the percentage of people who agreed that the money should be spent on the ECCC had decreased since 2008 from 47% to 38% in 2010.238
The length of time the ECCC has taken to conduct investigations and hold trials has been a frequent source of criticism, and in surveys the top recommendation to the court has been to speed up the trials. 239 Speed is important because of ageing defendants and victims but also because the protracted nature of proceedings at the ECCC has caused declining interest domestically and internationally. Case 001 had a number of publicity advantages: it was the first case, it was relatively easy to follow, and Duch was a compelling figure who frequently offered explanations and apologies during the course of the trial. Case 002/01 had its own significance as the first trial at the ECCC against senior leaders. Media coverage was still prominent for the major events of the trial, but even the judgement was not as extensively covered and was not a topic of public conversation in the way that Case 001 had been. Case 002/02 has received far less
233 Pham et al., "So We Will Never Forget," 36-37. 234 Phuong Pham et al., "After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia," (Human Rights Center, University of California, Berkeley, 2011), 27. 235 Ibid., 28. Studies since 2010 have only focussed on civil parties so survey data about broader perceptions of the ECCC is not available for the more recent period. Funding for, and interest in, such surveys has decreased along with a number of NGO programs that were launched to coincide with the ECCC. 236 Phuong Pham et al., "Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia," Journal of Human Rights Practice 3, no. 3 (2011): 279. 237 Pham et al., "After the First Trial," 33. 238 Ibid., 24; Pham et al., "So We Will Never Forget," 35. 239 Pham et al., "So We Will Never Forget," 42; Pham et al., "After the First Trial," 34. 168 attention; there was no particular interest in the opening statements which were delivered in October 2014 despite this trial addressing crimes committed at worksites and cooperatives which relate to the experiences of all Cambodians during the Khmer Rouge regime. This lack of interest is caused by the protracted nature of the process and by the fact that the two defendants have already been convicted in Case 002/01; although Cambodians often voice a desire to understand more about why the crimes of the Khmer Rouge regime occurred, punishment is clearly an important outcome of the ECCC. Cases 003 and 004, and the politics surrounding them, feature heavily in the reporting on the ECCC in the international media and English language publications in Cambodia. However, they receive far less attention in the local Khmer language press, which is more tightly controlled by the government.
The existence of the ECCC has also sparked a number of other projects not directly tied to the court. It has encouraged more research and advocacy concerning experiences during the Khmer Rouge regime that had not previously received significant attention. For example, forced marriage and sexual violence have become prominent issues about which there had long been silence but which emerged because of civil party applicants at the ECCC, and the first study of the experiences of LGBT Cambodians during the Khmer Rouge regime was published in 2015.240 Small-scale reconciliation and mental health projects have been run by a range of organisations including testimonial therapy conducted by the Transcultural Psychosocial Organization and a theatre project launched by Youth For Peace.241 The Khmer Rouge period had also disappeared from the school curriculum in the early 1990s. In 2007 the Documentation Center of Cambodia (DC-Cam) published A History of Democratic Kampuchea (1975-1979).242 Since then this book has gained an increasingly central and officially backed place in Cambodia’s history curriculum.243 Although the Khmer Rouge period was taught in schools during the 1980s it was a highly politicised version of history as I discussed in Chapter Two. This DC-Cam
240 Emily Wight, "Gender-Based Violence: Khmer Rouge Survivors Given a Platform," Phnom Penh Post, 24 January 2014; George Wright and Sek Odom, "Study Details KR Abuse of Transgender People," Cambodia Daily, 3 March 2015; Kasumi Nakagawa, "Gender-Based Violence Against Sexual Minorities During the Khmer Rouge Regime," (Cambodian Defenders Project, 2015). 241 Mom Kunthear and Cassandra Yeap, "Words Help KR Survivors Heal," Phnom Penh Post, 4 May 2012; Prak Thida and Tharum Bun, "Bright Idea: Peace Theatre," Phnom Penh Post, 19 May 2010. 242 Dy Khamboly, A History of Democratic Kampuchea (1975-1979) (Phnom Penh: Documentation Center of Cambodia, 2007). 243 Dy Khamboly, interview with the author, 25 February 2014, Phnom Penh. 169 book is the first time the Khmer Rouge has been included in a more detailed, descriptive, and less political manner.244
Conclusions
Before the first trial even began the Cambodian government had asserted control by moving the court’s location to a military compound on the outskirts of Phnom Penh. The realities of a court located in the Cambodian system were reinforced when corruption allegations surfaced. The subsequent creation of a weak anti-corruption mechanism showed that foreign governments were not willing to insist on a process that the UN Secretariat considered to be appropriately robust, either in relation to corruption or the conduct of the ECCC more broadly. In aspects of Cases 001 and 002 that were of minimal political importance, the procedures of the ECCC were generally observed, although with indications that substantive justice concerns took priority over defendants’ rights in certain circumstances. However, politically contentious aspects also arose at the ECCC, in the forms of government leaders being summoned to appear as witnesses at the court and the prospect of additional cases. In both situations the government acted to ensure that its domestic power was not compromised by the ECCC straying beyond acceptable limits. However, in order to ensure it could maintain international legitimacy for the ECCC and consequently for itself, the government wrapped these interventions in the language of procedure.
So far, the ECCC has convicted three people of crimes against humanity and war crimes. All three will serve out the rest of their lives in prison but it is unlikely they will be joined by any other Khmer Rouge leaders. The outcomes of the ECCC as a court have been the adjudications of guilt against three defendants. As a transitional justice mechanism, much more is expected.
244 Previous attempts to include Cambodia's modern history had stumbled over how to represent the post-Khmer Rouge period. Pin Sisovann and Matt Reed, "Textbook Delay Reflects Sensitivity of Cambodia's Recent History," Cambodia Daily, 23 March 2002; Pin Sisovann, "Prime Minister Orders Recall of Textbooks," Cambodia Daily, 29 April 2002.
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Chapter Five – Breaking the Mould: Cambodia and the Transitional Justice Literature
Official United Nations documents are highly optimistic about transitional justice mechanisms. A 2004 report, for example, stated that the UN’s pursuit of international (or internationalised) criminal tribunals had “sought to advance a number of objectives, among which are bringing to justice those responsible for serious violations of human rights and humanitarian law, putting an end to such violations and preventing their recurrence, securing justice and dignity for victims, establishing a record of past events, promoting national reconciliation, re-establishing the rule of law and contributing to the restoration of peace”.1 Cambodians also pinned immense hopes on the tribunal process. One local scholar, Rath Many, argued “setting up a credible tribunal [can] help the dead gain peace. And alleviate the sufferings of survivors”.2 Youk Chhang, director of the Documentation Center of Cambodia, said “I am not free. The only way to free us is to have a complete accounting, a real justice. Until that happens our psychological wounds cannot be healed. Without justice we will never have peace of mind”.3 And a survivor of S-21, Chhum Mey, stated that “If there is no tribunal I will keep crying until there is a trial. Only then will I stop crying”.4
International actors and victims both assume that transitional justice mechanisms such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) will have a range of positive impacts both on individuals and on society more broadly. Transitional justice is, as the term indicates, justice designed for a transitional period. This transition is assumed and desired to be one towards liberal democracy and transitional justice is expected to advance this goal in a range of ways. Accordingly, more expansive impacts are anticipated and desired from transitional justice than from ordinary justice processes which are not tasked with societal transformations.
1 United Nations Security Council, "The Rule of Law and Transitional Justice in Conflict and Post- Conflict Societies, Report of the Secretary-General," S/2004/616, 23 August 2004, 13. 2 David Chandler, "Cambodia Deals with its Past: Collective Memory, Demonisation and Induced Amnesia," Totalitarian Movements and Political Religions 9, no. 2 (2008): 365. 3 Tom Fawthrop and Helen Jarvis, Getting Away With Genocide? Elusive Justice and the Khmer Rouge Tribunal (Sydney: University of New South Wales Press, 2005), 253. 4 Ibid. 172
In this chapter I examine the most important of these goals and posited outcomes: ending impunity, developing the rule of law, promoting democracy, and various aspects of justice and reconciliation. In each section I provide evidence that the issue is a goal of both transitional justice and the ECCC. I then examine the extent to which each goal is being fulfilled by the ECCC, and discuss the limitations that occur locally and globally. In some cases the evidence that any transitional justice mechanism can contribute to a particular goal is weak or it is too soon to judge any outcome. In other cases the context, design, or manipulation of the ECCC is itself an obstacle. Often both are the case to varying degrees. What becomes apparent from this discussion is that the goals of liberal transitional justice bear little resemblance to the goals or outcomes of the ECCC and that therefore analyses of the ECCC on the basis of the usual transitional justice precepts are unhelpful.
Ending Impunity and Creating Deterrence
The purposes of punishment can be broadly divided into retribution, deterrence, and rehabilitation.5 I discuss retribution in a subsequent section on justice but it is rarely acknowledged within transitional justice as a desirable motivation; too great an emphasis on retribution can result in a loss of legitimacy for a transitional justice process and it does not fit within transitional justice’s stated aims of societal transformation.6 Rehabilitation also rarely features in the transitional justice literature in reference to punishment, instead the references to rehabilitation consider the victim’s place in society.7 Additionally, in Cambodia with elderly defendants sentenced to life imprisonment in a Cambodian jail, rehabilitation is not an evident consideration. What remains is deterrence, which can be divided further into individual deterrence and general deterrence.8 Individual deterrence refers to that person’s ability and willingness to commit future crimes, which none of the ECCC defendants are in a position to do, at least not crimes on the scale being considered at the court. General deterrence is meant to create a reasonable threat of punishment for those considering committing crimes.
5 Stanley Grupp, "Introduction," in Theories of Punishment, ed. Stanley Grupp (Bloomington: Indiana University Press, 1971), 5-9. 6 Marek Kaminski, Monika Nalepa, and Barry O'Neill, "Normative and Strategic Aspects of Transitional Justice," Journal of Conflict Resolution 50, no. 3 (2006): 296. 7 See, for example, Roman David and Susanne Choi, "Victims on Transitional Justice: Lessons from the Reparation of Human Rights Abuses in the Czech Republic," Human Rights Quarterly 27, no. 2 (2005): 392-435. 8 H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd ed. (Oxford: Oxford University Press, 2008), 128-29. 173
In transitional justice I argue that this idea of general deterrence exists on two main levels. On the level that most resembles ideas of punishment from other contexts, each prosecution of mass atrocity crimes is supposed to contribute to a global expectation of punishment for war crimes, genocide, and crimes against humanity. On the other hand, transitional justice also considers the rebuilding of legal institutions and social contracts in the affected society. In a period of mass atrocities accountability mechanisms in that country have either been discredited, diminished, or entirely destroyed. Consequently, a culture of impunity can flourish, arising from the fact that there is no consistent expectation of trial or punishment for people who commit legal violations, particularly if they are rich or powerful. Individual instances of impunity can be said to reach a level where they can be referred to as a culture of impunity if, rather than an absence of expectation that people in general, or a particular category of people, will be brought to account, there is an expectation that they will not be. In such situations impunity may not be viewed enthusiastically by citizens but neither is there surprise or even strong attempts to effect change which can seem futile. The reverse of a culture of impunity is a culture of accountability where there is a consistent expectation of trial and punishment for crimes regardless of who commits them.9
In the case of the ECCC, this facet of punishment is particularly pertinent as cultures of impunity abound in Cambodia at various levels: Khmer Rouge leaders were free from punishment for decades, legal accountability had to be rebuilt from scratch in Cambodia after 1979 and is still very weak, and punishment of government leaders under international criminal law is still not the norm globally. In accordance with its hybrid nature, the ECCC has been advocated as a way of building accountability within Cambodia and as a way to contribute to global deterrence through the increased expectation of prosecutions for mass atrocity crimes.
In Cambodia, politically motivated violence is either not investigated at all or scapegoats are blamed and the rich and politically connected are protected. The existing culture of impunity has been cited as one of the most pressing issues for the nation’s development. In particular, Thomas Hammarberg, the Secretary-General’s Special Representative for Human Rights in Cambodia 1996-2000, said frequently that for human rights in Cambodia “the number one problem is impunity” and commented that it “will not be possible to actively put an end to the culture of impunity in this country without putting
9 Of course these can exist in combination, for example a society could have a culture of accountability for violent crimes but a culture of impunity for financial crimes. 174 the Khmer Rouge leaders to trial".10 Although impunity for the crimes of the Khmer Rouge era is identified as one root of this broader culture, examples of impunity in modern Cambodia are diverse and plentiful. Since a legal system was re-established in the wake of the Khmer Rouge’s destruction nearly forty years ago, the judiciary has been tied to the consistently ruling Cambodian People’s Party (CPP) and used as a tool to serve its interests.
On 30 March 1997, for example, a rally was held in Phnom Penh by Sam Rainsy and his opposition Khmer National Party to demand the independence of the judiciary. This rally was attacked with hand grenades which killed 16 people and injured 142 others.11 The FBI launched an investigation since one of those injured was an American. The investigation was left incomplete due to a lack of cooperation from CPP officials and threats made against the lead investigator.12 Leaked versions of the interim report implied the complicity of Hun Sen’s bodyguard unit who were present on the day and were reported to have allowed the grenade throwers to leave the area and prevented others from following them.13
Further evidence of impunity, and how it is perpetuated by the CPP’s control of the courts, arises when rich or politically connected people are charged with a crime. The case of Hun Sen’s nephew is worth quoting at length from a UN report:
The trial and sentencing of Nhim Sophea, a nephew of the Prime Minister, is an example of how the courts operate in favour of the privileged and well connected. The accused was identified by witnesses as the person who opened fire on a crowd following a traffic accident in October 2003. Two people were killed and four were wounded. The accused was charged with voluntary manslaughter. The court at first instance provided no advance notice that the case would be heard on 11 March, and the trial was held in camera. Relatives of the victims were paid sums on the order of $8,000 and did not testify before the court. ... Nhim Sophea received a sentence of 18 months in prison after charges against him were reduced to involuntary manslaughter.
On 26 August, during another in camera hearing in the Court of Appeal, all charges against the accused were dismissed. The prosecutor did not appeal the case, despite the clear breaches of international and Cambodian law that had occurred. By way of contrast, the case following that of Nhim Sophea in the Phnom Penh court that same day
10 Anette Marcher, "Hammarberg: Impunity Cambodia's Problem," Phnom Penh Post, 29 October 1999; "UN Rights Envoy Says KR Trial on Track," Phnom Penh Post, 5 February 1999. 11 Special Representative of the Secretary-General for Human Rights in Cambodia, "Continuing Patterns of Impunity in Cambodia," (Phnom Penh: Office of the High Commissioner for Human Rights, 2005). 12 Douglas Gillison, "Survivors Blamed Security Forces for Easy Escape of 1997 Grenade Attackers," Cambodia Daily, 19 March 2010. 13 Allister Hayman, "10 Years After the Grenade Attack," Phnom Penh Post, 23 March 2007. 175
was the trial of Kul Vinlay, a man charged with stealing 2,700 riel ($0.65). He was sentenced to four years in prison after his mother was unable to pay the $1,000 that had been sought in exchange for his release.14
The entrenched system of impunity in Cambodia cannot be solely, or even primarily, attributed to impunity for Khmer Rouge era crimes. However, Craig Etcheson has explained the logic that underpins this connection: “When the most monstrous crimes humans have ever conceived go unpunished, why should Cambodians worry about lesser crimes?”15 Whilst the fact that others have not been punished for crimes is not a legal defence, it is nonetheless a pervasive mentality in a judicial system that is corrupt and far from being politically independent. It is also a connection that is influenced by the CPP’s narrative of the Khmer Rouge regime, which as I discussed in Chapter Two consistently reinforces the importance of being angry at the crimes of the Khmer Rouge and the role of the CPP as national saviours. This narrative also helps to confer impunity to the CPP. They are defined by being, at minimum, better than the Khmer Rouge and defined in opposition to them since 1979. Since the crimes of the Khmer Rouge had not been prosecuted, the lesser abuses of power committed by CPP officials were implicitly not worthy of judicial consequences. The strings of Cambodia’s extensive patronage system then convey this impunity to lower level officials throughout the country. Wendy Lambourne cited an interviewee in Phnom Penh who called the Khmer Rouge crimes the “biggest case of impunity in the world and the mother of other smaller impunities in Cambodia” and opposition politician Son Chhay referred to the culture of impunity in Cambodia as “the heritage of the Khmer Rouge” which continues “to play an important role in our day-to-day lives”.16
High hopes, thus, were pinned on the ECCC, and the concept of a Khmer Rouge tribunal more generally. In his meeting with the Group of Experts in 1998 the Secretary-General said of a potential trial, “the main intention was to send a message that impunity was dealt with to the Cambodian people”.17 He then argued to the UN Security Council and
14 Peter Leuprecht, "Situation of Human Rights in Cambodia: Report of the Special Representative of the Secretary-General for Human Rights in Cambodia," (UN Economic and Social Council, 2004), 10. 15 Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport: Praeger, 2005), 170. 16 Wendy Lambourne, "Justice After Genocide: Impunity and the Extraordinary Chambers in the Courts of Cambodia," Genocide Studies and Prevention: An International Journal 8, no. 2 (2014): 35; "Cambodians Talk About the Khmer Rouge Trial," Phnom Penh Post, 4 February 2000. 17 Meeting of the Secretary-General with the Group of Experts Appointed to Investigate the Possibility of a Khmer Rouge Trial, 8 September 1998, UN KRT documents. 176
General Assembly that an international tribunal should be established for Cambodia because “impunity is unacceptable”.18 In reacting to the Case 002/01 verdict in August 2014 Rupert Abbott of Amnesty International noted that “Fair and effective trials are crucial if the ECCC is to leave a lasting legacy which strengthens Cambodia’s very fragile judicial system and contributes towards ending the deep culture of impunity”.19 Although perhaps not a sufficient condition to end impunity in Cambodia, the ECCC is regarded, at least by international actors, as a necessary step.20
In an immediate and direct sense, impunity has ended for three individuals: Kaing Geuk Iev (Duch), Khieu Samphan, and Nuon Chea. At most the ECCC will convict only four more people—the suspects charged in the court’s contentious Cases 003 and 004—and their convictions seem unlikely. Even in the best of circumstances it is doubtful whether the prosecution of a handful of aged leaders would have an impact on the balance of national and international impunity and accountability; they have lived most of their lives without judicial consequences for mass atrocity crimes and are only a small fraction of Khmer Rouge era perpetrators. Moreover, the ECCC has never operated in the best of circumstances. Truly ending an entrenched culture of impunity would mean allowing the Cambodian judiciary to decide who will be prosecuted and permitting courts to reach verdicts independent of political interference. In almost all transitional justice mechanisms, this ideal has already been compromised during the establishment process. The body which established the transitional justice mechanism, often a government, had the ability to make decisions of political convenience about the personal or temporal jurisdiction of the mechanism. Not all transitional justice mechanisms are established in this manner but many are, including the ECCC. In the case of Cambodia, domestic and international interests were served by keeping the court’s jurisdiction narrow. The culpability of mid-level Khmer Rouge cadres, the destruction caused by the American bombing of Cambodia before the Khmer Rouge came to power, and the role of Chinese support for the Khmer Rouge never fell within the jurisdiction negotiated by the UN Secretariat and the Cambodian government and were thereby credibly avoided.
Although it must be doubted whether transitional justice mechanisms can make progress towards a culture of accountability in any circumstances, the ECCC is especially
18 United Nations, "Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135," S/53/850, 16 March 1999. 19 Parameswaran Punnudurai and Samean Yun, "Cambodia's 'Brutal' Khmer Rouge Leaders Ordered Jailed for Life," Radio Free Asia, 7 August 2014. 20 Laura McGrew, "Re-establishing Legitimacy through the Extraordinary Chambers in the Courts of Cambodia," in Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society, ed. Joakim Öjendal and Mona Lilja (Copenhagen: NIAS Press, 2009), 270. 177 removed from the goal of ending impunity because of the way the Cambodian government has interacted with the court. There is an ongoing dispute over Cases 003 and 004 which nearly all the international judges favour pursuing but which Cambodian judges have opposed and which Prime Minister Hun Sen told UN Secretary-General Ban Ki-Moon will “not be allowed”.21 As I discussed in Chapter Four these cases clearly demonstrate the government’s ability to interfere with and exercise control of the judiciary, even at this hybrid institution. That the government can decide who it will allow to be prosecuted, and who it will protect, prevents the ECCC from contributing to a broad culture of accountability.
The executive control over who will be prosecuted is also strongly evident in the domestic system. Cases from 2015 demonstrate that while the government, and specifically Hun Sen, sometimes choose to act for the cause of justice, they do so using personal power rather than the court process. In a recent case that was widely publicised Sok Bun, a property mogul who held the honorary oknha title, assaulted a waitress and actress known as Ms Sasa in July 2015.22 A week later security footage of the attack circulated widely on social media and drew considerable outrage. Sok Bun fled to Singapore and cited an unspecified medical condition that would prevent him from returning to Cambodia for several months.23 Two weeks after the attack and following mounting public discussion of the case, Hun Sen called for his quick apprehension and he was arrested on arrival at Phnom Penh airport the next day.24 Victims of other crimes used this opportunity to seek justice. Chhouk Bandith, Bavet town governor, shot three female factory workers who were protesting in February 2012. After a convoluted legal process he was sentenced in 2013 to eighteen months in prison and a US$9,500 fine but he had been on the run since his conviction. The three victims petitioned the government to intervene after seeing the results of the Sok Bun case.25 After two years in hiding Chhouk Bandith turned himself in to police less than a week after Hun Sen
21 Cheang Sokha and James O'Toole, "Hun Sen to Ban Ki-moon: Case 002 Last Trial at ECCC," Phnom Penh Post, 27 October 2010. 22 Verver and Dahles report that the oknha title is used “to honour Cambodian business people making financial contributions in excess of US$100,000 to national development projects. Although the title is formally awarded by the king, the leaders of the ruling Cambodian People’s Party (CPP) currently identify candidates to receive this honour … as an expression of the reciprocal relationship between the Cambodian business elite and the CPP leadership”. Michiel Verver and Heidi Dahles, "The Institutionalisation of Oknha: Cambodian Entrepreneurship at the Interface of Business and Politics," Journal of Contemporary Asia 45, no. 1 (2015): 48. 23 May Titthara and Charles Parkinson, "Sok Bun Arrest Warrant Issued," Phnom Penh Post, 17 July 2015. 24 Buth Reaksmey Kongkea, "Sok Bun Arrested at Airport," Phnom Penh Post, 18 July 2015. 25 Chhay Channyda, "Chhouk Bandith's Victims See Hope in Sok Bun Arrest," Phnom Penh Post, 28 July 2015. 178 publicly called for his arrest.26 In each case the norm of impunity was selectively overridden by the executive for the purpose of political display. These interventions did more to emphasise the selectivity of prosecution rather than to make any contribution to a culture of accountability.
As well as being embedded in a domestic legal context, the ECCC is also part of a growing system of ad hoc international and national tribunals, domestic cases, and the International Criminal Court, that prosecute mass atrocity crimes. The intention, or more accurately the hope, is that these mechanisms will create a global system of deterrence through the expectation of punishment. Juan Mendez, appointed as the UN Secretary-General’s Special Advisor on the Prevention of Genocide in 2004, said “I think the whole idea behind the genocide convention – that it’s a convention to prevent and to punish the crime of genocide, is precisely that punishment plays here a preventative role”.27 However, he also called the role of trials in preventing future crimes “an act of faith”.28 The ECCC would therefore “be an important patch on the international normative quilt”.29 United States Ambassador-at-Large for War Crimes Issues Stephen Rapp said after the verdict of Case 002/01 that the message to those in a position to commit similar crimes was “Their day of judgement will arrive. There is no escaping it in this life”.30 It is questionable whether being prosecuted thirty years after events is an adequate deterrent but if this new global industry of accountability had not prosecuted Khmer Rouge leaders it would have been a conspicuous absence.
However, the general arguments in favour of global deterrence can, at best, be classified as too soon to tell. The idea of systematic accountability for mass crimes only took hold twenty years ago and it is possible that the cumulative effect of these efforts will become apparent in decades to come. However, in the case of the International Criminal Tribunal for the former Yugoslavia (ICTY), for example, the establishment of the court in 1993 did not deter the 1995 massacre at Srebrenica or the 1998 ethnic cleansing in Kosovo. More broadly the scale of the crimes being considered, and the important role that dehumanisation of victims plays in mass atrocity crimes, makes potential perpetrators very hard to dissuade, particularly through the threat of possible
26 Cheang Sokha and May Titthara, "Chhouk Bandith Turns Himself In," Phnom Penh Post, 8 August 2015. 27 "Preventing Genocide," United Nations World Chronicle No. 947, 7 September 2004. 28 Ibid. 29 Balakrishnan Rajagopal, "The Pragmatics of Prosecuting the Khmer Rouge," Yearbook of International Humanitarian Law 1 (1998): 197. 30 Eben Saling, "Press Conferences Detail Triumphs, Defeats, and Plans in the Aftermath of Case 002/01," Cambodia Tribunal Monitor, http://www.cambodiatribunal.org/2014/08/07/press- conferences-detail-triumphs-defeats-and-plans-in-the-aftermath-of-case-00201/, 7 August 2014. 179
prosecution decades later.31 That the ECCC is being conducted many decades after crimes were committed and is only prosecuting a tiny number of defendants also limits the contribution it can make to a global culture of accountability.
Rule of Law
Whilst the culture of impunity in Cambodia is an obstacle to the emergence of a fair judicial system, the ECCC is also expected by international advocates to contribute to the development of the rule of law more broadly.32 The rule of law is a broad term for the quality and equality of the legal system, described by the UN Secretary-General as:
a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision- making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.33 Transitional justice mechanisms do little to change the structures of legal systems in a country but instead target the elements of the rule of law which lie more with the role of individual members of the judiciary.
Periods of mass violence and conflict often have a destructive impact on judiciaries, which was particularly true in Cambodia. The Khmer Rouge targeted intellectuals and fewer than a dozen legal professionals remained in Cambodia in 1979.34 One of the arguments made in favour of creating domestic/international hybrid courts is that they provide an opportunity to build the capacity of the local judiciary through training and the experience of trials being held to international standards. These courts are also expected to provide a model of appropriate conduct and standards for the national system.35 The Office of the United Nations High Commissioner for Human Rights argued
31 Payam Akhavan, "Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism," Human Rights Quarterly 31, no. 3 (2009): 628-29. 32 Jane Stromseth, "Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?," Hague Journal on the Rule of Law 1 (2009): 87- 97. 33 United Nations Security Council, "The Rule of Law and Transitional Justice," 23 August 2004, 4. 34 Dolores Donovan, "Cambodia: Building a Legal System from Scratch," The International Lawyer 27, no. 2 (1993): 445. 35 Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post- Conflict States: Maximising the Legacy of Hybrid Courts (New York and Geneva: United Nations, 2008), 28. 180 that “hybrid courts may serve a function far beyond their lifespan in setting certain standards through their so-called demonstration effect” but cautioned that they “should not be expected to restore damaged or destroyed domestic legal systems”.36
The concept of improving the judiciary through a demonstration effect is widely espoused. UN negotiator Hans Corell stated in a press briefing in March 2003 that he hoped the ECCC would “help the people of Cambodia in developing a system under the rule of law” and that it could be a “stepping-stone to develop a proper system”.37 International Co-Prosecutor Andrew Cayley has emphasised the importance of the court’s work: “Cambodian and international staff have worked together in this process imparting legal procedures, jurisprudence, knowledge and skills which we believe will endure and permeate into the Cambodian legal system long after the court’s lifetime”.38 A government spokesperson has termed the ECCC a “model court”.39 John Kerry, at the time Chairman of U.S. Senate Foreign Relations Committee, argued for further funding of the ECCC saying “it could serve as a model for the Cambodian people of what impartial judicial proceedings might look like”.40 Deputy Prime Minister Sok An has also supported this idea, saying that the ECCC “will not only meet our country’s needs for justice in this egregious case, but will also assist the wider process of legal and judicial reform by providing a model court meeting international standards”.41
Training programs have been conducted in concert with the ECCC. Training in international criminal law has been conducted for Cambodian lawyers and judges by the International Bar Association and by the United Nations Development Programme. The Defence Support Section has conducted training programs for prospective defence lawyers, and similarly the Victim Support Section conducted training for civil party lawyers. The ECCC Acting Director of Administration Tony Kranh said at a conference on the legacy of the ECCC “I hope that the lawyers, judges and legal staff here will become a great asset to the Cambodian legal system’s reform”.42 The Australian government said of its support for the ECCC that “The Cambodians involved in the process as judges, prosecutors and defence lawyers gain the experience of participating
36 Ibid., 17, 40. 37 Bill Bainbridge and Vong Sokheng, "KR Tribunal: Corell Meets the Press," Phnom Penh Post, 28 March 2003. 38 Stuart White, "Finish Line Appears in Sight at KRT," Phnom Penh Post, 23 July 2013. 39 Bridget Di Certo, "KRT is a Model Court Says State," Phnom Penh Post, 23 March 2012. 40 John Kerry, "More Justice for Cambodians," Phnom Penh Post, 16 August 2010. 41 Sok An, "Statement on the Entry into Force of the Agreement Between Cambodia and the United Nations on the Khmer Rouge Trials on 29 April 2005," 3 May 2005. 42 Stuart White, "Legal Eagles, Officials Hail Tribunal's Legacy," Phnom Penh Post, 14 September 2012. 181 in highly complex trials, and are able to learn from the rigorous processes and high ethical standards applied by the international participants. These standards will be taken back in the judicial system”.43
Years spent working at the ECCC has affected the skills of the lawyers involved, beyond specific training, and the experience of complex case management has begun to impact on the domestic system. National Co-Investigating Judge You Bunleng has implemented a computerised case file system in his other role as head of the domestic Court of Appeals and has expressed his opinion that the ECCC will contribute to modernising the Cambodian judiciary.44 In offices where the Cambodian and international lawyers work together international staff have expressed the idea that the Cambodian lawyers will experience a different working culture where disagreements can be held with superiors.45 However, these ideas also create a dichotomy between supposedly ignorant Cambodian personnel and infallible international personnel that devalues the experiences held by the Cambodians and ignores the shortcomings of the internationals.46 This attitude of international superiority has also meant that some, although not all, offices within the ECCC remain highly segregated between the national and international components.47
It is not clear what, if any, direct impact the ECCC rulings will have on the court system. These rulings represent an example of adherence to international law but they are
43 Marcus Cox and Ok Sorei Sopheak, "Cambodia Case Study: Evaluation of Australian Law and Justice Assistance," (Office of Development Effectiveness, AusAID, 2012), 40. 44 John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor: University of Michigan Press, 2014), 255. 45 International staff member in the Office of the Co-Prosecutors, interview by author, 20 January 2014, Phnom Penh. 46 The international judicial personnel are not always modelling ideal behaviour. For example, in 2011 and 2012 Ieng Sary’s and Nuon Chea’s defence teams attempted to have Trial Chamber judge Silvia Cartwright disqualified because she had conducted ex parte meetings and communications with International Co-Prosecutor Andrew Cayley. Although the applications for an investigation or the disqualification of Cartwright were rejected, the Supreme Court Chamber expressed the opinion that such communications “may create the appearance of asymmetrical access enjoyed by the prosecutor to the trial judge” and that “it would seem advisable” to include a representative of the Defence Support Section at any similar meetings in the future. Two days later an email error meant that a large number of staff at the ECCC were sent an email from Cartwright intended for Cayley and the international Deputy Director of Administration which read “Of course I was only trying to see the lighter side. As you know Andrew, I am seriously considering my own position. I shall not make a hasty ydecision [sic]. Silvia”. Subsequent disqualification motions were also dismissed. Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Ieng Sary's Application for Disqualification of Judge Cartwright," Case File 002/19-09-2007-ECCC/TC, E191/2, 4 June 2012; Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Co- Prosecutors' Response to 'Ieng Sary's Rule 34 Application for Disqualification of Judge Silvia Cartwright or, in the Alternative, Request for Instruction and Order to Cease and Desist from Ex Parte Communications and Request for Disclosure of Ex Parte Communications'," Case File 002/19-09-2007-ECCC/TC, E191/1, 10 May 2012. 47 Ciorciari and Heindel, Hybrid Justice, 252. 182 limited in relevance as they apply the law as it stood when the crimes were committed in 1975-1979. With this caveat, the rulings of the ECCC could nonetheless form part of applicable jurisprudence as the tribunal is located in the courts of Cambodia. Long Panhavuth of the Cambodian Justice Initiative noted that jurisprudence is rarely applied in Cambodian courts because of political interference and a lack of resources but welcomed the introduction of an annotated version of Cambodia’s Code of Criminal Procedure in 2014 which provides examples of how aspects of the code have been used in Cambodian courts, including at the ECCC.48
Beyond the direct application of jurisprudence from the ECCC to the domestic courts, the court leaves a legacy of several lengthy, considered, and reasoned decisions. Although these documents are not widely known or distributed, they could be helpful to legal professionals and represent a standard that is lacking in the domestic system. Similarly, many Cambodians have observed sessions of the ECCC in person or on television and compared these sessions with their experiences of the domestic judicial system. Although the ECCC will not always compare favourably (for example the frustration caused by the lengthy procedures), it represents better standards of defendants’ rights, legal arguments, and respect for procedures.
Although the idea that trials such as the ECCC will contribute to developing the rule of law is frequently asserted, limited evidence or reasoning is ever offered in support of this claim. Thomas Carothers has argued that in general “judicial training, while understandably appealing to aid agencies, is usually rife with shortcomings and rarely does much good”.49 The Office of the United Nations High Commissioner for Human Rights, in its report on the legacy of hybrid courts, noted that “[f]undamentally reforming dysfunctional judicial systems and developing a culture based on the rule of law and respect for human rights are long-term goals”, that “it takes many years to complete even basic legal training”, and that it is “therefore important to have realistic expectations of legacy efforts”.50 The idea that setting a positive example and providing judicial training will significantly improve the local judiciary rests on assumptions about the type of problems that exist: that they relate primarily to lack of knowledge and capacity, rather than to less tractable issues.
48 Stuart White, "Annotated Code to 'Promote' Rule of Law," Phnom Penh Post, 26 March 2014. 49 Thomas Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge (Washington D.C.: Carnegie Endowment for International Peace, 2006), 25. 50 Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post- Conflict States, 5. 183
It is true that Cambodian judges, particularly those of the older generation, are poorly trained, or were trained primarily in a communist system. Poor physical infrastructure and lack of legal resources are also an obstacle, particularly outside Phnom Penh. Whilst these issues are important they are comparatively easier to solve. Far more difficult, and more fundamental to the problems of the Cambodian judiciary, are the issues of political interference, normalised practices of corruption, and lack of independence from the ruling party. Judges are not ignorant of the problems of the system, but the position of any individual judge attempting to resist political pressure is unsustainable. International Co-Investigating Judge Marcel Lemonde was warned by a Cambodian judge at the ECCC to be wary of all Cambodian judges because they either lived in fear of those in power, or were close to those in power; in either case, he was told, none were reliable or independent.51 In assessing its aid program in Cambodia the Australian government noted that “the work with the judicial system has made little progress” because the programs “assumed that a lack of institutional capacity was the binding constraint on improving the justice system. In fact, the constraints are largely political and there is no reason to believe that capacity building alone will improve the quality of justice services delivered to the public”.52 This report also acknowledged that “in the context of the wider challenges facing the Cambodian judiciary, the ECCC makes only a minor contribution to strengthening the system”.53
The decision about which Cambodian judges would be appointed to the ECCC was approved by the Supreme Council of Magistracy. Made up of Cambodian judges and prosecutors, this body is nominally headed by the King but is normally chaired by the Minister of Justice. Whilst consideration would have been given to appointing judges who were minimally objectionable to the international community, appointments to the ECCC were still lucrative and politically sensitive positions. Even with the best of intentions and experience working on cases to international standards, these national judges will eventually return to an unchanged domestic system. They must face the personal consequences of any attempts they make at reform long after the international judges at the ECCC have gone home. This is a system where judges answered phone calls in twenty percent of monitored trials and in which the International Bar Association
51 Marcel Lemonde, Un Juge Face aux Khmers Rouges (Paris: Seuil, 2013), 50. 52 Cox and Sopheak, "Cambodia Case Study," 9-10. 53 Ibid., 41. 184 related in 2015 that “only one person with whom the delegation met relayed a first-hand anecdote about dealing with a single judge who was not corrupt”.54
As I discussed in the preceding section on impunity, the influence of the ECCC is limited because the government has clearly and frequently demonstrated its ability to intervene in the legal process even in this supposedly internationalised institution. As Viviane Dittrich shows, the issue of legacy at the ECCC has been contentious because it implies an effect on the judiciary that the government is unwilling to see. Accordingly, and compounded by funding shortages, legacy initiatives at the ECCC have been minimal and sporadic.55 At most, it seems that the ECCC could have a slow, long-term, and incremental improvement on the standard of the rule of law in Cambodia. Although there is evidence of changes over the period of the ECCC’s operation these changes are minimal and difficult to attribute to the presence of the ECCC. Surveys conducted in 2008 and 2010 found Cambodians had moderately increasing trust in their judiciary. Agreement with the statement “I trust the Cambodian court system” had risen from 36% to 52%, and with “I trust Cambodian judges” from 37% to 48%.56 However, the World justice Project’s Rule of Law Index for 2015 ranked Cambodia 99th out of 102 countries surveyed, with Cambodia’s worst scores in categories such as “no corruption in the judiciary”, “no improper government influence”, and “absence of violent redress”.57 Corruption has, if anything, worsened in the judiciary in recent years, where it is clear that money trumps legality. In the same surveys in 2008 and 2010, agreement that going to court meant paying bribes to judges rose from 82% to 86%, and that involving the police in a conflict meant having to pay a fee increased from 77% to 82%.58 In the 2015 Transparency International Corruption Perception Index Cambodia ranked worst in Southeast Asia and in the bottom twenty of the world with a score of twenty-one out of a
54 Cambodian Center for Human Rights, "Sixth Bi-annual Report: Fair Trial Rights in Cambodia," (2013), 34-35; International Bar Association's Human Rights Institute, "Justice versus Corruption: Challenges to the Independence of the Judiciary in Cambodia," September 2015, 29. 55 Viviane Dittrich, "The Legacy of the ECCC," in The Extraordinary Chambers in the Courts of Cambodia: Assessing Their Contribution to International Criminal Law, ed. Simon Meisenberg and Ignaz Stegmiller (The Hague: Asser Press, 2016), 129-30. 56 Phuong Pham et al., "So We Will Never Forget: A Population-Based Survey on Attitudes About Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia," (Human Rights Center, University of California, Berkeley, 2009), 33; Phuong Pham et al., "After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia," (Human Rights Center, University of California, Berkeley, 2011), 30. 57 World Justice Project, "Rule of Law Index 2015: Cambodia," http://data.worldjusticeproject.org/#/groups/KHM. 58 Pham et al., "So We Will Never Forget," 33; Pham et al., "After the First Trial," 30. 185 hundred, a score that was particularly brought down by perceptions of corruption in the judiciary.59
Political interference in the judiciary has remained as pervasive as the problem of corruption. The pattern of government interests dictating judicial outcomes has been built since the early 1990s and continues unabated. Opposition leader Sam Rainsy has been frequently prosecuted and is currently in his third stint of self-imposed exile to avoid a prison sentence, a situation that has been resolved in the past through political deals.60 Activists and protestors are prosecuted within days of being arrested while most other cases proceed much more slowly.61 In the case of the murder of trade unionist Chea Vichea it took nine years for the scapegoats who had been convicted to achieve an acquittal and no progress has ever been made on securing the real culprits.62 In reconsidering the UN definition of the rule of law, there is evidence of inequality before the law and arbitrariness, and very little separation of powers or accountability for the state or its actors. Thus far there is little evidence to suggest that the ECCC has made, or will be able to make, a significant contribution to improving the rule of law in Cambodia.
Promoting Democracy
The most tenuous link between transitional justice processes and their supposed outcomes is their claimed importance in the promotion of democracy. Teitel has argued that “Trials offer a way to express both public condemnation of past violence and the legitimation of the rule of law necessary to the consolidation of future democracy”.63 This argument posits a long-term and indirect effect where transitional justice mechanisms contribute to broader liberalising processes. The UN General Assembly nonetheless identified a Khmer Rouge tribunal as a means of “strengthening democracy”.64
The U.S. State Department said, when the Cambodian king signed the first version of the ECCC law in 2001, that “Only through a credible process will justice be achieved, the rule
59 Lay Samean and Shaun Turton, "Judiciary Hampers TI Corruption Score," Phnom Penh Post, 28 January 2016. 60 Mech Dara and Shaun Turton, "Kem Sokha Seeking Way Forward," Phnom Penh Post, 13 January 2016. 61 Pech Sotheary, "NGOs Seek Access to Jailed Koh Kong Activists," Phnom Penh Post, 1 February 2016; Khouth Sophak Chakrya and Shane Worrell, "Boeung Kak Activists' Release Sought," Phnom Penh Post, 22 January 2015. 62 Denise Hruby, "The Assassination of Union Leader Chea Vichea - A Decade On," Cambodia Daily, 22 January 2014. 63 Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), 30. 64 United Nations General Assembly, "Situation of Human Rights in Cambodia," A/RES/52/135, 27 February 1998. 186 of law instated, and a true and lasting democracy begin to take root”.65 As the UN and Cambodian government came close to a final agreement in late 2002 the U.S. Ambassador-at-large for War Crimes Issues said that “Everyone has always looked at this KR issue as one of the benchmarks for democracy”.66 Democracy is also a frequent refrain when governments pledge money in support of the tribunal. The Australian Foreign Minister stated, when committing money in 2003, his government’s view that the “establishment of the tribunal will demonstrate Cambodia’s commitment to the principles of justice, which must be the foundation of any stable democracy”.67 The Japanese Embassy in Phnom Penh expressed a similar idea in announcing it was contributing money to finance the Cambodian side of the court: “Japan places a great emphasis on the progress of the Khmer Rouge tribunal, for it believes that this process will promote democracy, the rule of law, and good governance in Cambodia”.68 The UN Group of Experts was also told by a senior Cambodian government official during their 1998 visit that "justice is one of the components of democracy".69 Whether or not it is a realistic expectation, democracy promotion is a common refrain to justify transitional justice and the ECCC, albeit with minimal specificity about what democracy means in this context or which facets of democracy will be impacted.
Democracy has a limited and very recent history in Cambodia.70 The first national elections were held in 1946 and from 1952 to 1992 no legislative body was elected with members from more than one party. Although Cambodia underwent major political transformations during this time, and the controlling authority changed, the authoritarian intolerance for dissenting voices did not. Since the UN-sponsored election in 1993, national elections have been held every five years. Commune elections were held for the first time in 2002. The 1993 election was declared “free and fair” by the UN but the entrenched power of the CPP (as the new political party formed from the 1980s government) allowed them to secure greater power than was warranted by the election results.71 Since then, elections have generally met the necessary minimum international
65 U.S. Department of State, "U.S. Welcomes Cambodian King's Signature of Khmer Rouge Tribunal Law," 10 August 2001. 66 "US Encouraged by Upcoming UN-Cambodia Talks on Khmer Rouge Trial," Agence France- Presse, 31 December 2002. 67 "Australia Gives One Million Dollar Boost to Cambodia's Khmer Rouge Tribunal," Agence France-Presse, 19 June 2003. 68 "Japan to Provide $3 Million More for Khmer Rouge Trial," Kyodo News, 18 June 2008. 69 United Nations, "Report of the Group of Experts," 16 March 1999, 28. 70 I focus in this section on democracy as embodied by the quality of elections although as I discussed in the introduction to this thesis the transitional justice association with liberal democracy includes a much broader range of considerations. 71 Philip Shenon, "U.N. Aide Calls Cambodia Vote 'Free and Fair'," New York Times, 26 May 1993. 187 standards to avoid sanction, although there are some election day irregularities, particularly related to names missing from voting lists. However, the environment surrounding the elections compromises their quality more fundamentally through unequal access to media, reduced freedom to campaign, and threats and intimidation. Since 2002 Freedom House has consistently ranked Cambodia at 5.5, or “not free”, on a scale from one to seven where seven is least free.72
It is too soon to discern an impact of the ECCC on Cambodian democracy. In the 2013 national elections the newly formed opposition party, the Cambodian National Rescue Party (CNRP), won a surprising forty-five percent of the vote, claimed that in the absence of fraud it would have won a majority, and staged large protests over the next few months. The political freedom to protest was short lived as subsequent protests were violently disbanded by masked security forces.73 A political deal was negotiated between the CPP and the CNRP which supposedly ushered in a new era governed by a “culture of dialogue”.74 The CNRP agreed to join the National Assembly that it had been boycotting and was granted the Vice President position of that legislative body, the right to a television licence, and reforms to the National Election Committee. In little more than a year this Vice President of the National Assembly had been removed in a vote that was without basis in the constitution, and opposition MPs had been physically attacked by a pro-CPP rally on leaving the grounds of the National Assembly.75 In November 2015 opposition leader Sam Rainsy was threatened with jail over an old defamation conviction and chose to go into self-imposed exile rather than return from an overseas trip and be imprisoned.76 These events, and the general political culture, meant Cambodia dropped ten places in The Economist Intelligence Unit’s Democracy Index for 2015 “with its score leaving it on the cusp of the ‘authoritarian regime’ category”.77
The political model of the Cambodian government is an example of a new phenomenon of modern politics which has been labelled in academic literature as electoral
72 Sarah Taguiam, "Cambodia 'Not Free': Report," Phnom Penh Post, 29 January 2015. 73 Khouth Sophak Chakrya and Kevin Ponniah, "Rally Violently Dispersed," Phnom Penh Post, 28 January 2014; Khouth Sophak Chakrya and Shane Worrell, "Untrained Guards Rule at Protests," Phnom Penh Post, 23 January 2014. 74 Meas Sokchea, "Rainsy for Dialogue, Kheng Says," Phnom Penh Post, 26 January 2015. 75 Shaun Turton and Chhay Channyda, "Sokha Stripped of National Assembly Vice Presidency," Phnom Penh Post, 30 October 2015. 76 Phak Seangly and Shaun Turton, "Arrest Warrant Issued for Rainsy," Phnom Penh Post, 13 November 2015. 77 The Economist Intelligence Unit, "Democracy Index 2015: Democracy in an Age of Anxiety," (2016), 26. 188 authoritarianism, pseudo-democracy, and hybrid regimes.78 In these political systems multiparty elections are held but not in an open political environment. The governments are not democratic nor are they transitioning towards democracy. Distinctions between democracies and pseudo-democracies will always involve judgement calls and grey areas about what violations are sufficient to diminish the overall quality of democracy. As a minimum condition to fulfil the political aspects of democracy it must be reasonable and possible for an opposition party to take power. Hun Sen has stated that if the CNRP won an election and sought to take power the National Police Chief and Commander-in-Chief of the Royal Cambodian Armed Forces would lead their forces against the opposition party.79 He has also stated that if he chose to use force he could silence the opposition “in only two hours”, and called the opposition party “traitorous” and “a landmine”.80 Cambodia is not currently fulfilling the minimum political conditions of a democracy to say nothing of broader civil rights in a democracy. Asserting that the ECCC will play a role in changing this situation is at best optimistic, long-term, and presumptive.
Justice and Healing
The value most fundamentally attached to trials is justice, whether in a transitional or ordinary context. However, those who invoke justice are rarely specific about what they mean by the term. Justice is a phenomenon that is subjective and hard to measure. Claims made about justice are difficult to substantiate. Justice is also multi-faceted; some aspects will be wholly compatible whilst others will be mutually exclusive depending on context. Trials that follow correct procedures to arrive at an unpalatable outcome and trials that ignore procedural rules but arrive at an outcome seen as just are fulfilling different facets of justice. There is no inevitable link between the levels of procedural and substantive justice.
Despite the analytical challenges, the notion of justice is a useful rhetorical tool. Supporters of the ECCC easily and frequently frame the importance of the court in terms of justice. In her closing statement to the Trial Chamber at the conclusion of Case 002/01 National Co-Prosecutor Chea Leang said “Today on behalf of the Cambodian people and the international community, we ask you for justice, justice for the victims who perished and justice for the victims who survived” and following the issuing of the judgement in
78 Kanishka Jayasuriya and Garry Rodan, "Beyond Hybrid Regimes: More Participation, Less Contestation in South East Asia," Democratization 14, no. 5 (2007): 773-94. 79 Meas Sokchea, "Hun Sen Thinks We Can Win: Sokha," Phnom Penh Post, 26 October 2015. 80 Vong Sokheng, "Hun Sen Lashes out at Opposition," Phnom Penh Post, 23 September 2015; Meas Sokchea, "PM Warns Opponents Away from Lawsuits," Phnom Penh Post, 13 August 2009. 189
Case 002/01 she said “the victims finally have some justice”.81 Following the judgement, Prime Minister Hun Sen also expressed his satisfaction, saying “justice was given to the victims” and “We have waited for justice for thirty-five years and eight months”.82 Deputy Prime Minister Sok An also referenced the length of time it took to bring the Khmer Rouge leaders to account but stated that he “had never lost sight of justice”.83 David Scheffer, the UN Secretary-General's Special Expert on United Nations Assistance to the Khmer Rouge Trials, took a more poetic approach following the judgement: “Today, the winds of international justice swept through the fields, forests, and towns of Cambodia where millions perished”.84 Civil parties also listed justice for themselves and their relatives as their primary motivation for becoming involved with the court.85
The ideal of justice for the victims is easy to evoke in any trial context. Kirsten Ainley argues that justice is the default justification for the existence of the ECCC. 86 It is a justification that is blindly employed and assumed to supersede criticisms of the flaws of the court. In this section I examine the extent to which the ECCC is addressing various facets of justice and healing: procedural justice, substantive justice, learning the truth, national reconciliation, and personal healing. I also consider which of these elements are most important to which parties interested in the ECCC.
Procedural Justice Procedural justice stresses the fairness of proceedings where there is consistency, neutrality, transparency, and representation of all parties. It is a means by which courts demonstrate their legitimacy. Sok An drew a connection between procedure and a sense of justice when he said that the government would work to ensure the ECCC would “attain the level of international standards that we have both agreed on and that are needed to address the needs for justice of the Cambodian people and all humanity”.87
81 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 218," Case File 002/19-09-2007-ECCC/TC, E1/231.1, 21 October 2013, 125; Saling, "Press Conferences Detail Triumphs, Defeats, and Plans in the Aftermath of Case 002/01," 7 August 2014. 82 "Full Text of Hun Sen's Remarks on Khmer Rouge Verdict," Cambodia Herald, 28 August 2014, http://www.thecambodiaherald.com/cambodia/full-text-of-hun-sens-remarks-on-khmer-rouge- verdict-7224. 83 Saling, "Press Conferences Detail Triumphs, Defeats, and Plans in the Aftermath of Case 002/01," 7 August 2014. 84 Ibid. 85 Phuong Pham et al., "Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia," Journal of Human Rights Practice 3, no. 3 (2011): 273. 86 Kirsten Ainley, "Justifying Justice: Verdicts at the ECCC," Justice in Conflict, 16 September 2014, http://justiceinconflict.org/2014/09/16/justifying-justice-verdicts-at-the-eccc/. 87 Sok An, "Statement on the Entry into Force of the Agreement Between Cambodia and the United Nations on the Khmer Rouge Trials on 29 April 2005," 3 May 2005. 190
However, for many Cambodians the issue of procedure seems to be of limited importance. The ECCC must appear to observe processes appropriate enough to not be labelled a show trial but to the general public the details and nuances of these procedures are of minimal significance. Following the judgement in Case 001 the ECCC produced two versions for publication: 5,000 copies of the complete judgement of 450 pages, and 17,000 copies of a summary version of 36 pages.88 The full version has been distributed specifically at provincial courts as a means for prosecutors and judges to learn more about international law and standards but it is unlikely to be of interest to the broader population.89 As Youk Chhang, director of the Documentation Center of Cambodia observed, in reference to the full written judgement, “Most of the people don’t care much, and also they don’t have to understand all those legal proceedings, so all they care about is the final judgement”.90 Rachel Killean provides further insight that the Cambodian civil parties prized different aspects of procedural justice from those that are stressed in Western domestic systems. They were less concerned with the consistency of decision-making or the availability of appeals but with expediency; fairness was supported but not at the cost of delays in reaching a verdict.91
On the other hand, the importance of procedural justice at the ECCC is often stressed by international lawyers and judges, UN officials, court monitors, and local and international NGOs. The strong current of legalist thinking often means that rules and procedures must trump any other concerns. Procedural justice becomes the marker of legitimacy, the performance that must be adhered to. Following the announcement of the judgement in Case 002/01, International Co-Prosecutor Nicholas Koumijian said “this court has found fairly and justly”.92 In a joint statement on the same judgement by the government and the UN they noted that the “ECCC has demonstrated that it has the capacity to conduct complex prosecutions in accordance with due process and international standards”.93
88 Extraordinary Chambers in the Courts of Cambodia, "ECCC to Distribute the 'Duch' Verdict Nationwide," http://www.eccc.gov.kh/en/articles/eccc-distribute-quotduchquot-verdict- nationwide, 6 August 2010. 89 Vong Sokheng, "KRT Staff Take Duch Verdict to Kandal Provincial Courthouse," Phnom Penh Post, 18 August 2010. 90 Veng Rachana and James O'Toole, "Dust Settles on KRT Verdict," Phnom Penh Post, 13 August 2010. 91 Rachel Killean, "Procedural Justice in International Criminal Courts: Assessing Civil Parties' Perceptions of Justice at the Extraordinary Chambers in the Courts of Cambodia," International Criminal Law Review 16 (2016): 17-18. 92 Saling, "Press Conferences Detail Triumphs, Defeats, and Plans in the Aftermath of Case 002/01," 7 August 2014. 93 "Joint Statement on Case 002/01 Judgement: Joint Statement by His Excellency Dr Sok An, Deputy Prime Minister and Minister in charge of the Office of the Council of Ministers and Mr. 191
Although they also occur in more neutral settings, statements about the importance of procedure more frequently occur when it is most in doubt. At the ECCC this doubt has been particularly prevalent in relation to Cases 003 and 004 and the government’s refusal to recognise Laurent Kasper-Ansermet as the International Co-Investigating Judge. ECCC spokesperson Lars Olsen issued similar statements after each suggestion of government interference: “We follow the law”, the court “simply follows the legal process described in the law and the agreement relating to this court”, the court does “its job independently according to the legal framework for the ECCC”, and the court makes decisions “independently in accordance with the law”.94
In the debates about the appointment of Laurent Kasper-Ansermet, although the core issue was the relative power of the Cambodian government and the UN and their respective control of the court, the language used was that of procedure. National Co- Investigating Judge You Bunleng refused to work with his new international counterpart because, as far as the government was concerned, he had not been appointed and therefore “any procedural action taken by [him] is not legally valid”.95 Following the refusal of the Supreme Council of the Magistracy to appoint Kasper-Ansermet, a spokesperson for the government’s Press and Quick Reaction Unit made it clear that since the ECCC was, as the name says, in the courts of Cambodia, the government considered that the Supreme Council of the Magistracy had authority to act. “If someone wants to work as international co-investigating judge at the ECCC without legal appointment by the Supreme Council of Magistracy, that does not make sense in terms of the legal authority of the Supreme Council of Magistracy”.96 Appealing to procedure in a different way, David Scheffer, speaking on behalf of the UN, stated that Kasper- Ansermet had “clear authority to fulfil his duties in this country” and that “he had authority under the treaty”, referring to the agreement between the UN and the Cambodian government.97 In this case the language of procedure was deployed as a tool by both sides of the dispute, which served to reinforce the need to be seen to be following the correct procedure. As I discuss in the following chapter this emphasis on
Stephen Mathias, Assistant Secretary-General for Legal Affairs of the United Nations," http://www.unakrt-online.org/articles/joint-statement-case-00201-judgement, 7 August 2014. 94 Kong Sothanarith, "'Be Careful' of War, Hun Sen Warns Tribunal," VOA Khmer, 3 December 2009; Sokha and O'Toole, "Hun Sen to Ban Ki-moon: Case 002 Last Trial at ECCC," 27 October 2010; James O'Toole, "NGOs Concerned about KRT," Phnom Penh Post, 20 May 2011; Vong Sokheng, "Chea Sim Warns KRT Against 'Ill Intentions'," Phnom Penh Post, 8 January 2010. 95 Bridget Di Certo, "Terse Beginning to New Relationship Among Kr Tribunal Judges," Phnom Penh Post, 7 December 2011. 96 David Boyle, "UN Holds Firm on Judge," Phnom Penh Post, 26 January 2012. 97 Ibid. 192 the rhetoric of procedure but not adherence to the reality is a hallmark of an illiberal transitional justice mechanism.
When Judge Kasper-Ansermet determined that his position was untenable and that he had to resign, he released a note to the parties of the ECCC on what he termed “egregious dysfunctions” to inform them of “serious irregularities, dysfunctions and violations of proper procedure that endanger and impede due process of law”.98 He focussed primarily on procedural breaches as evidence of political manipulation citing, amongst others, “procedural defects”, “lack of due process in the disagreement settlement procedure”, actions ”outside of proper procedures”, and “improper procedures followed by the President of the Chamber”.99 The importance and more clearly evidenced nature of procedural violations made them an easier focus, and it is precisely these procedures that were built into the system of the ECCC in an attempt to prevent political interventions.
In aspects of its work that are of minimal political importance the ECCC has, by and large, achieved internationally acceptable standards of procedural justice. The judgement in Case 001 was praised as “a tremendous accomplishment” that was “carried out in accordance with international standards”.100 Reasoned decisions are issued for most actions and they cite Cambodian and international law and precedent. However, more recently, a report issued by the East-West Institute examined the Case 002/01 judgement and found it was “inadequate” with “questionable foundations in law, an extremely weak approach to factual findings, and a totally misguided application of law to facts”.101 There are also cases where procedure at least appears to have been subsumed to substantive concerns. Whilst the court followed procedure and issued reasoned decisions in deciding to detain all Case 001 and 002 suspects in the pre-trial phase some observers noted that it seemed the reasoning was only to support the foregone conclusion that the suspects must be detained.102 Overall the ECCC is, at a minimum,
98 Office of the Co-Investigating Judges, Extraordinary Chambers in the Courts of Cambodia, "Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions Within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004," Case Files: 003/07-09-2009-ECCC-OCIJ and 004/07-09-2009-ECCC-OCIJ, D114, 21 March 2012, 13. 99 Ibid., 7. 100 Open Society Justice Initiative, "Duch Verdict Marks Milestone for Khmer Rouge Tribunal," 26 July 2010. 101 David Cohen, Melanie Hyde, and Penelope Van Tuyl, "A Well-Reasoned Opinion? Criticial Analysis of the First Case Against Alleged Senior Leaders of the Khmer Rouge (Case 002/01)," East-West Center, November 2015, 41. 102 Ciorciari and Heindel, Hybrid Justice, 153. 193 couching all of its decisions in the language of procedure, which allows it to maintain international legitimacy.
Substantive Justice Substantive justice relates to how appropriate the outcome of a judicial process is perceived to be, rather than on the process itself. An inherent difficulty in speaking generally about substantive justice is that it will mean something different to each individual, and what is considered substantive justice will change over time for individuals and for national communities. When people talk about the adequacy of a sentence they are most frequently referring to its value as substantive justice. In this section I primarily consider the punishment aspect of substantive justice, which is linked to its retributive function, but it also encompasses the adequacy of the truth and reparations that are outcomes of the judicial process.103
The ECCC, by its very nature, is fundamentally limited in the measure of substantive justice it can provide. This inadequacy is inherent in all punishment for mass atrocity crimes. How can a court adequately sentence someone it finds responsible for the deaths of hundreds of people, or thousands, or millions? As a court of law, and one in a country that prohibits the death penalty, the ECCC is limited in sentencing to imposing prison terms and confiscation of property or money acquired illegally.104 Measures outside of the scope of the ECCC that have been suggested by Cambodians include putting chains around the bones of dead Khmer Rouge leaders, placing a person’s image in a jail cell, prosecuting the children of deceased people who committed crimes, or applying the death penalty.105 Further difficulties in the case of the ECCC are that it is occurring many decades after crimes have been committed and so a life sentence for elderly defendants is, in effect, much shorter than it would have been if applied soon after the crimes were committed. The personal jurisdiction of the ECCC is also limited to “senior leaders and those most responsible”, and in practice seems unlikely to convict more than three people. Few Cambodians will see the person who was physically responsible for their torture, or who killed their family members, held responsible. All of these factors place limitations on the types of punishment the ECCC can implement, and the (in)adequacy of these punishments will vary for individuals.
103 Killean, "Procedural Justice in International Criminal Courts," 6. 104 The five defendants in Cases 001 and 002 were declared indigent and so no financially based penalties were imposed. The four suspects in Cases 003 and 004 have also claimed indigence and so their counsel are being funded by the ECCC. 105 Tara Urs, "Imagining Locally-Motivated Accountability for Mass Atrocities: Voices from Cambodia," SUR - International Journal on Human Rights 4, no. 7 (2007): 78. “Discussion on the Khmer Rouge Trial and Case 002 Verdict,” Meta House, Phnom Penh, 13 August 2014. 194
Despite these limitations, it seems that the ECCC is applying the most severe punishment possible in a bid for substantive justice. The defendants in Cases 001 and 002 were held in provisional detention from the time they were charged, at least in part because for most Cambodians their guilt is considered known and incontestable. The outrage at what was perceived as a lenient sentence for Duch (who had nineteen years left to serve after he was sentenced) was rectified by the Supreme Court Chamber. The Supreme Court Chamber, by a supermajority decision of the Cambodian judges and one international judge, voted to sentence Duch to life in prison with no reduction.106 In doing so, it noted that among the “recognised purposes of criminal punishment… retribution and deterrence are particularly relevant to this case in light of the gravity of Kaing Geuk Eav’s crimes”.107 In terms of retribution it held that the Trial Chamber’s judgement did not “appropriately reflected the gravity of crimes” and that Duch’s crimes “deserve the highest penalty available to provide a fair and adequate response to the outrage these crimes caused in victims, their families and relatives, the Cambodian people, and all human beings”.108 It also noted that the “lapse of more than 30 years since the commission of the crimes does not weaken the necessity of a high punishment” and that the purpose of deterrence “calls for a statement that the passage of time neither leads to impunity nor undue leniency”.109
The Co-Prosecutors had asked that Duch be sentenced to life in prison, to be reduced to forty-five years in jail due to his illegal military detention before his transfer to the ECCC. As International Co-Prosecutor Andrew Cayley observed to journalists, “We got more than we asked for”.110 An international trial monitor called this aspect of the decision “shocking” and said that it gave “unjustifiable weight to public opinion”.111 The two international judges who dissented from the supermajority decision of the Supreme Court Chamber noted that “the prejudice to Kaing Geuk Eav’s liberty was extreme” and that “the ECCC is uniquely placed to grant an effective remedy that will not frustrate the mandate of the Court”.112
Procedural and substantive justice are not necessarily mutually exclusive, and very often they are entirely compatible. It is not always clear where certain tenets of justice should
106 The two dissenting international judges advocated for a term of thirty years imprisonment. Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Appeal Judgement," Case File 001/18-07-2007-ECCC/SC, F28, 3 February 2012, 320, 37. 107 Ibid., 175. 108 Ibid., 175-76. 109 Ibid. 110 Suy Se, "Khmer Rouge Jailer Handed Life on Appeal," Agence France Presse, 3 February 2012. 111 Ibid. 112 Supreme Court Chamber, "Appeal Judgement," 3 February 2012, 329-30. 195 lie. For example, expediency of process is a right enshrined in many jurisdictions that could be regarded as an aspect of procedural justice. However, particularly in the case of the ECCC where there is a significant risk defendants will die before a judgement is reached, expediency also becomes a substantive concern that can be at odds with fairness and thoroughness. Different procedural rights have also clashed at the ECCC. The civil party system has created a more prominent role for victims but also raised questions about conflicts between victims’ and defendants’ rights. Defence teams have criticised a lack of adherence to the idea of equality of arms (with the defence unfairly arrayed against both the prosecution and civil parties) and the impact of civil party participation on their clients’ rights to a speedy trial. On the other hand, civil party advocates have derided the limitations placed on the role of the civil parties in deference to defence concerns; they are not able to make submissions on a range of issues including pre-trial detention, the defendant’s character, and sentencing.113 In cases where there are inconsistencies between procedural and substantive justice the prevalence of one over the other becomes apparent.
The Supreme Court Chamber often acted to address substantive concerns with Trial Chamber decisions that relied too heavily on practicalities or procedure rather than substantive concerns. The Supreme Court Chamber decision to sentence Duch to life in prison was greeted enthusiastically in Cambodia where the Trial Chamber had created disappointment. In 2011 the Trial Chamber severed Case 002 into a series of mini trials but it was ordered by the Supreme Court Chamber to reconsider its severance decision and to offer detailed reasoning since Case 002/01 had been criticised for its narrow scope. Following hearings with the parties, the Trial Chamber chose to replicate the severance it had put in place before the Supreme Court Chamber’s decision and offered a seventy- four page explanation.114 The Supreme Court Chamber noted that the Trial Chamber appeared to have considered representativeness “merely for the sake of argument”.115 As plans did not seem forthcoming for Case 002/02, and with fears Case 002/01 would be the only trial of these two defendants, the Supreme Court Chamber ordered that Case 002/02 begin as soon as possible and considered it imperative that a second panel of
113 David Sokol, "Reduced Victim Participation: A Misstep by the Extraordinary Chambers in the Courts of Cambodia," Washington University Global Studies Law Review 10, no. 1 (2011): 170-71. 114 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Severance of Case 002 Following Supreme Court Chamber Decision of 8 February 2013," Case File 002/19-09- 2007/ECCC/TC, E284, 26 April 2013. 115 Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Immediate Appeals Against Trial Chamber's Second Decision on Severance of Case 002," Case File 002/19-09-2007-ECCC-TC/SC(28), E284/4/8, 25 November 2013, 31. 196 judges be constituted.116 In making this decision the Supreme Court Chamber criticised the Trial Chamber’s “reliance on the ECCC’s financial malaise” as “irrelevant and inappropriate in the present decision-making process”.117 The SCC noted that although judges must bear in mind the efficiency of proceedings, “they must always act within the sacrum sphere of the law, the tenets of which cannot be overridden by the profanum of budgetary savings”.118
Surveys of a thousand Cambodians conducted by the University of California, Berkeley in 2008 and 2010 have also tracked ideas about justice and the ECCC in the early years of its operation. The most common explanation for why those surveyed thought the ECCC would have a positive effect was that it would sentence people who committed crimes (37%), closely followed by its role in finding truth for victims (35%). Between the first of these surveys, conducted in 2008, and the second, in 2010, perceptions about what justice meant shifted significantly. In 2008 justice was primarily defined as establishing the truth (43%) and being fair (37%), followed by enforcing and respecting existing laws (15%) and knowing who is right and wrong (9%).119 By 2010 the importance of fairness was named by 71% of respondents with the next most important being knowing who is right and who is wrong (25%) and applying the law (24%).120 Given how closely together these surveys were conducted, just over two years apart, and that respondents were being asked about other aspects of the ECCC, it seems likely that the ECCC and the discourse surrounding it played a large part in these shifting ideas of justice. The focus seems much more on procedural aspects of justice in the second survey, in line with the expectation management that is part of the court’s outreach work. The main message of outreach material is that “The ECCC is designed to provide fair public trials in conformity with international standards” with an emphasis on the limited personal jurisdiction in the court’s mandate.121 Although statements by proponents of the court, particularly for the international media, take a much more expansive view of the outcomes of the ECCC, the outreach programs have worked to educate Cambodians about the limits of what can be achieved, which is particularly necessary in the face of such rhetoric.
116 The Trial Chamber decided it was competent to hear Case 002/02 despite defence objections and the delay of handling both 002/01 and 002/02 and so four of the five judges who presided over Case 002/01 are now hearing Case 002/02. Ibid. 117 Ibid., 37. 118 Ibid. 119 Pham et al., "So We Will Never Forget," 33. 120 Pham et al., "After the First Trial," 29. 121 Public Affairs Section, Extraordinary Chambers in the Courts of Cambodia, "An Introduction to the Khmer Rouge Trials, Fourth Edition," (2011), 6. 197
Truth Although ideas of justice have changed, finding the truth remains an important element of the ECCC’s purpose and of other initiatives designed to address the Khmer Rouge past. Amongst Cambodians, one of the most frequently posed question about the Khmer Rouge period is why Khmers killed Khmers on such a scale. Much Cambodian discussion on this topic presumes there to have been a malevolent foreign power which directed events in an outsiders’ attack on the Cambodian nation. Although the crimes of the Khmer Rouge era did not occur in isolation, the tone of this question often implies a more controlling role for foreign powers than evidence suggests. In part, it is a reflection of how mass atrocity crimes challenge conceptions of common humanity but it also reflects the different rhetorics of the period. The Khmer Rouge blamed American bombing for famine and the destruction of their country. The 1980s government, the People’s Republic of Kampuchea, billed the Khmer Rouge as being controlled by “hegemonist expansionists of Peking”.122 More recently, Nuon Chea has argued in his defence that it “was Vietnam who killed Cambodians” and the deputy leader of the opposition CNRP has been accused of saying that the S-21 prison was staged by the Vietnamese.123 There is clearly a lack of nuanced understanding of the Khmer Rouge regime, outside of lived experiences, that has perpetuated a sense of unanswered questions about the fundamental nature of the Khmer Rouge and maintained the emphasis on a need for answers.
Cambodians frequently reference finding the truth as a desired outcome of the ECCC. In 2008, 85% of people surveyed said it was necessary to find out the truth about what happened during the Khmer Rouge regime, and this number increased to 93% in 2010. Similarly, the percentage of people who said that you cannot reconcile without knowing the truth increased from 64% in 2008 to 81% in 2010. The outreach program of the ECCC is helpful in bringing people to witness the court’s events. However, it is clearly limited by the nature of the court process. Competing narratives about the guilt or innocence or a small number of individuals can contribute little to the broader search for truth. The ECCC has been further hindered by the refusal of key witnesses who now occupy powerful positions to testify, and by the need for expediency given the advanced age of the accused.
122 "Closing Argument of Hope R. Stevens," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 507. 123 Vong Sokheng and David Boyle, "Kem Sokha's S-21 Remarks Questioned," Phnom Penh Post, 27 May 2013; Bridget Di Certo, "KR Weren't 'Bad People'," Phnom Penh Post, 6 December 2011. 198
At the time of the severance of Case 002 into a series of mini trials there was significant doubt that any of these trials would go ahead after Case 002/01.124 However, Case 002/02 began in October 2014 and addressed a broad range of crimes including: genocide against the Cham and Vietnamese, forced marriage and rape, and crimes committed at security centres, worksites, and cooperatives. This case shows justice and trials serving purposes other than punishment. The procedure of the court would call for the case to continue but, as occurred with the organisation of civil parties or the original severance of Case 002, the rules of the court could be rewritten if other considerations took priority. Pending an appeal, the defendants have already been sentenced to life in prison so punishment will not be affected by any judgement in Case 002/02. However, in other ways this case can still have a substantive impact. When asked what occurrences during the Khmer Rouge era its leaders should be held accountable for, 80% listed killing, 63% starvation, and 56% torture. Only 4.9% of those surveyed mentioned evacuation, which was the primary focus of Case 002/01.125 In other words, although these defendants have been punished, they have not been punished for the right crimes.
The continuation of Case 002 also serves other goals within the broad umbrella of justice: setting a historical record, allowing witnesses and civil parties to be heard, and reaching a verdict on crimes considered iconic of the Khmer Rouge regime. As a civil party lawyer observed during closing arguments for Case 002/01: “Time has not erased these wounds but a question is still there: why? To such a complex question there cannot be a simple answer”.126 In her opening statements for Case 002/02 National Co- Prosecutor Chea Leang said this trial was necessary because “the great majority of crimes suffered by the victims … had yet to be addressed” and that “the doors of this court cannot be closed until justice is done for the victims of these crimes”.127
Although Case 002/02 is an important aspect of the ECCC’s role in generating and publicising knowledge about the Khmer Rouge regime, the court is limited in the truth- telling role it can play. The desire of Cambodians to understand was served better by Case 001 since Duch was, at the time, willing and eager to explain and respond to witnesses. In Case 002 the defendants have been increasingly reluctant to speak. Khieu Samphan’s lawyers explained that their client felt he had no choice but to remain silent
124 White, "Finish Line Appears in Sight at KRT," 23 July 2013. 125 Pham et al., "So We Will Never Forget," 32. 126 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 215," Case File 002/19-09-2007-ECCC/TC, E1/228.1, 16 October 2013, 77. 127 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Transcript of Trial Proceedings, Trial Day 225," Case File 002/19-09-2007-ECCC/TC, E1/242.1, 17 October 2014, 12, 14. 199 when it became clear “the Chamber has never been interested in what the Defense has had to say” and that he “no longer trusts his judges who are not interested in giving him the means to explain”.128 In August 2016 Nuon Chea declared, through his lawyer, that he “will remain silent forever” if the president of the National Assembly Heng Samrin is not called to testify.129 The nature and function of the ECCC is also limiting. The director of the International Center on Transitional Justice’s Truth and Memory program said trials such as those at the ECCC are “extremely complex procedures, whose details are likely to put off the public and frustrate the victims” and that the information they produce “is necessary and useful, but often selective and narrow”.130 Although the ECCC is limited in this regard, its existence has helped spawn a wide range of other projects. In broad terms it has opened a greater public space for conversations about the Khmer Rouge era. The Documentation Center of Cambodia has produced a textbook on Khmer Rouge policies and experiences during the regime which is now widely used in high schools.131 The Transcultural Psychosocial Organisation has run a program of testimonial therapy to help survivors tell their stories, sometimes for the first time.132
Reconciliation Searching for the truth is one way that the ECCC has been billed as having a positive effect on national reconciliation. In Cambodia efforts towards national reconciliation tend to focus on living together in peace and stability and, on a more political front, uniting as a nation behind the leadership of the CPP. As an international tribunal was first being discussed, the UN General Assembly identified accountability for the Khmer Rouge “as a means of bringing about national reconciliation”.133 In surveys, 70% of respondents said they thought the ECCC would help rebuild trust in Cambodia and 67% said it would help promote national reconciliation.134 This survey also measured the extent of reconciliation by asking community members about their level of comfort with various social situations involving former Khmer Rouge members. The highest levels of discomfort were expressed for living in the same community or living as household
128 Anta Guisse, Kong Sam Onn, and Arthur Vercken, "Khieu Samphan is Forced to Remain Silent," Phnom Penh Post, 18 July 2013. 129 Erin Handley, "Chea Wants Company on the Witness Stand," Phnom Penh Post, 18 August 2016. 130 International Center for Transitional Justice, "After Guilty Verdicts in Khmer Rouge Tribunal, Broader Struggle for Accountability Continues in Cambodia," https://www.ictj.org/news/verdict- khmer-rouge-tribunal-struggle-accountability-cambodia, 21 August 2014. 131 Dy Khamboly, A History of Democratic Kampuchea (1975-1979) (Phnom Penh: Documentation Center of Cambodia, 2007). 132 Mom Kunthear and Cassandra Yeap, "Words Help KR Survivors Heal," Phnom Penh Post, 4 May 2012. 133 United Nations General Assembly, "Situation of Human Rights in Cambodia," 27 February 1998. 134 Pham et al., "So We Will Never Forget," 40. 200 members with former Khmer Rouge, which 47% of respondents said they would find uncomfortable. The lowest level was 31% of people saying they would be uncomfortable going to the same pagoda as former Khmer Rouge members.135 Levels of discomfort for activities such as working together or sharing a meal fell within this range, and no significant change occurred in these figures in the 2010 survey.136
Whilst there is space for improvements in the extent of reconciliation in Cambodia, there are limitations to what the ECCC or any judicial process can achieve. There is little direct connection between the prosecution of a small number of individuals and the broader goals of reconciliation. James Meernik examined the impact in Bosnia of arrests of suspects and the issuance of judgements of the ICTY. He found that they rarely had a statistically significant effect on societal relations among Bosnia’s ethnic groups.137 In a later paper, Meernik addressed the broader literature surrounding the impact of international criminal trials on reconciliation and found the research to be “embryonic, but mostly pessimistic”.138 More broadly, Brandon Hamber demonstrated that there is little evidence for a positive or negative impact of trials on intergroup conflict.139
A number of aspects of the Cambodian context also affect the impact the ECCC can have on reconciliation. It has a narrow mandate and so does little to address the responsibility of mid or local level cadres or of complex forms of culpability or victimhood. Instead, all bar the very top leaders are treated as victims, and in some ways the testimony of Khmer Rouge members is prized over that of victims without former Khmer Rouge affiliation as they are more likely to be able to offer incriminating evidence at trial. The absence of Pol Pot, who died in 1998 and who is close to synonymous with the Khmer Rouge era, removes significant symbolic value from the proceedings. Finally, the Cambodian political context where annual Days of Anger are still held on 20 May and the ruling party trades on fear of a return to a Khmer Rouge type regime, hinders nuanced understandings which could contribute to greater national reconciliation.
135 Ibid., 28. 136 Pham et al., "After the First Trial," 33. 137 James Meernik, "Justice and Peace? How the International Criminal Tribunal Affects Societal Peace in Bosnia," Journal of Peace Research 42, no. 3 (2005): 271. 138 James Meernik and Jose Raul Guerrero, "Can International Criminal Justice Advance Ethnic Reconciliation? The ICTY and Ethnic Relations in Bosnia-Herzegovina," Southeast European and Black Sea Studies 14, no. 3 (2014): 388. 139 Brandon Hamber, "Transitional Justice and Intergroup Conflict," in The Oxford Handbook of Intergroup Conflict, ed. Linda R. Tropp (Oxford: Oxford University Press, 2012), 331-32. 201
Personal Healing At a more personal level, the ECCC is operating strongly under the assumption that participating in the process is intrinsically good, lauding the involvement of civil parties and public attendance. There are organisations working towards mental health resources and psychological treatment for survivors, but this is not the direct work of the court. One survey in 2009 found that 14.2% of the surveyed population over the age of 35 (that is, those who survived the Khmer Rouge regime) suffered from probable post-traumatic stress disorder. Amongst those surveyed, 87.2% of the people over the age of 35 thought that the trial would create painful memories for them.140 Experiences of the court will vary at an individual level but the assumption that any involvement is automatically positive is problematic.
Surveys and interviews with civil parties, those who chose to participate most in the court process, found they generally spoke positively of having participated.141 Many said they found the proceedings difficult to follow but nonetheless valued being included.142 Despite these positive reports those civil parties the most familiar with the court’s work were often the most critical of it, and there was no description of a healing effect. Instead, civil parties were on average more negative than the rest of the Khmer Rouge era cohort about accepting loss or forgiving perpetrators.143
Similar results were found in South Africa. In a survey of victims, of those who gave statements to the Truth and Reconciliation Commission although 56% found the experience “very upsetting” 64% said they “believed they gained something positive”.144 Eric Stover’s study of witnesses at the ICTY showed that some witnesses found testifying to be a cathartic experience but that this feeling was short-lived. “The glow quickly faded once they returned home to their shattered villages and towns”.145 David Mendeloff argued particularly in relation to the ICTY and the South African Truth and Reconciliation Commission that the assumption that trials and truth commissions have
140 Jeffrey Sonis et al., "Probable Posttraumatic Stress Disorder and Disability in Cambodia: Associations with Perceived Justice, Desire for Revenge, and Attitudes Towards the Khmer Rouge Trials," Journal of the American Medical Association 302, no. 527-536 (2009): 532-33. 141 Pham et al., "Victim Participation and the Trial of Duch," 284. 142 Killean, "Procedural Justice in International Criminal Courts," 20. 143 Pham et al., "Victim Participation and the Trial of Duch," 282-84. 144 Quoted in David Mendeloff, "Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice," Human Rights Quarterly 31, no. 3 (2009): 606. 145 Eric Stover, "Witnesses and the Promise of Justice in The Hague," in My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, ed. Eric Stover and Harvey Weistein (Cambridge: Cambridge University Press, 2004), 107. 202 tangible benefits for victims “remains at least open to question, and at most, highly dubious”.146
There are also concerns about the efficacy and suitability of transitional justice mechanisms operating in Cambodia that are designed around Christian conceptions of forgiveness and Western judiciaries. Alexander Hinton has discussed the “tensions” between Buddhism and the human rights discourse promoting a tribunal, and Jaya Ramji found that people she interviewed who supported amnesties and forgiveness often did so by referencing Buddhist ideas such as “hatred cannot be conquered by hatred”.147 However, several Cambodian Buddhist leaders have spoken of the consistency of a fair trial process with Buddha’s teachings. A prominent monk, the Venerable Yos Hut Khemacaro has argued that “When the accused are charged with their crimes, people will be happy and stop worrying and accusing each other. Only then will Cambodians begin to think about long-lasting peace and national reconciliation, befriend one another, have pity on each other and rebuild the country towards prosperity”.148 The Cambodian criminal justice system is not hindered by Buddhism, and when surveyed there seems to be at least broad passive support amongst Cambodians for a trial. Nonetheless, NGO programs addressing the Khmer Rouge past outside of the ECCC often incorporate more spiritual and cultural practices than the court is able to, which may contribute to a better sense of personal healing than the rigours of a largely foreign- designed court process.
Conclusions
Challenging and important goals are attributed to transitional justice mechanisms, and the ECCC is no exception. Although rhetoric places immense expectations on transitional justice, there is little evidence of direct causation between a mechanism and its supposed, society-benefitting, outcomes. In attempting to contribute to ending impunity, strengthening the rule of law, and promoting democracy all transitional justice mechanisms face challenges. In the case of Cambodia and the ECCC these challenges are compounded by the immense problems of the judiciary and the government’s unwillingness to let the ECCC erode any of its power. In the field of justice, the
146 Mendeloff, "Trauma and Vengeance," 615. 147 Alexander Hinton, "Truth, Representation and the Politics of Memory after Genocide," in People of Virtue: Reconfiguring Religion, Power and Morality in Cambodia Today, ed. Alexandra Kent and David Chandler (Copenhagen: NIAS Press, 2008), 79; Jaya Ramji, "Reclaiming Cambodian History: The Case for a Truth Commission," Fletcher Forum of World Affairs 24, no. 1 (2000): 146. 148 Quoted in Suzannah Linton, Reconciliation in Cambodia (Phnom Penh: Documentation Center of Cambodia, 2004), 77. 203 performance of procedural justice is prized by international actors whilst the substantive outcomes and search for truth are of more importance to Cambodians.
The outcomes assumed of liberal transitional justice mechanisms are not evident in Cambodia. In part, this chapter suggests, many of the desired outcomes of transitional justice are only aspirational in any context. They bear greater resemblance to hopes than to evidence-based policy expectations. Whether the growing network of legal accountability for mass atrocity crimes can create a global deterrence effect is difficult to judge but plausible, so too is the idea that transitional justice will build accountability and the rule of law and consequently contribute to the development of democracy. The assumed liberal democratic outcomes of transitional justice might be true of some mechanisms but they are certainly not true of all. A culture of impunity is pervasive in Cambodia and the government’s ability to protect suspects from the ECCC prevents the ECCC from contributing to a broader expectation of accountability. Although the ECCC has provided training to Cambodian judicial personnel it has not, cannot, address the more fundamental issues of corruption and government influence over the judiciary. Since Cambodia and the ECCC do much to defy the expectations surrounding transitional justice, alternative explanations are required.
205
Chapter Six – Comparing, Distinguishing, and Explaining Cambodia
Why did the Cambodian government create, and allow the creation of, the ECCC? As I argued in the previous chapter, the government showed little interest in establishing a court for the purposes of truth, justice or reconciliation, and actively worked to ensure the court would not have an impact on the rule of law or judicial independence. The grand ambitions frequently ascribed to transitional justice mechanisms were not being achieved, or even pursued, at the ECCC. Therefore, new explanations are needed in order to explain why the ECCC was created and the outcomes it achieved.
Cambodia is not alone in being excluded from, and eluding, existing accounts of transitional justice. In the first half of this chapter I discuss truth commissions held in Chad, Zimbabwe, Uganda, and Uzbekistan, and the International Crimes Tribunal currently operating in Bangladesh. Each of these transitional justice mechanisms adheres to the liberal script to varying degrees but each is further from the accepted norm than the ECCC. They show similar patterns to Cambodia to more extreme extents. I also discuss elements of the International Criminal Tribunal for Rwanda (ICTR), particularly the relationship between the United Nations and the Rwandan government. Although the ICTR is far more accepted as a legitimate transitional justice mechanism than the others I discuss, it still bears useful comparison with the case of Cambodia because of the way the Rwandan government was able to influence the ICTR during its operation.
Much of this chapter revolves around how legitimacy is bestowed. The legitimacy of a transitional justice mechanism is largely dependent on it being seen as independent of government influence or political concerns and on the appearance that rules, laws, and procedures have governed its operation and outcomes. At the time of a mechanism’s operation these judgements are made by the international community. This grouping seeks to convey universality but more accurately refers to liberal democratic, particularly Western, nations. The will of the international community is then invoked by certain governments individually or by bodies such as the European Union, the UN General Assembly, or the UN Security Council. This recognition of a transitional justice mechanism by foreign governments is linked to NGO and scholarly recognition. Each have similar liberal democratic expectations of transitional justice mechanisms and they 206 feed each other. The engagement of foreign governments legitimises mechanisms for scholars and advocates, and scholarly and advocacy engagement allows foreign governments to justify their engagement. Once the legitimacy or illegitimacy of a mechanism has been determined it can then have a knock-on effect to legitimate or illegitimate the government which created it. As I argue in this chapter, the ECCC falls into the category of mechanisms regarded as legitimate, but only precariously.
The second half of this chapter returns to the ECCC in detail and in light of the comparative cases. Part of what makes Cambodia an unusual case of transitional justice is that the transition itself differs from the literature’s expectations of a swift transition to liberal democracy: there is no clear moment of transition, the ECCC is operating decades after the crimes it was created to address, and Cambodia is far from a liberal democracy. In deciding to create a Khmer Rouge tribunal, and the specific model of the ECCC, the Cambodian government was faced with balancing a series of risks and rewards. Domestically, a tribunal was a chance to shape the narrative of the Khmer Rouge regime and to symbolise the final defeat of the movement. Internationally, legitimacy was the key goal. The ECCC was a way for Cambodia to shore up its credentials as a member of the international community.
The ECCC was not a risk free or wholly beneficial endeavour for the Cambodian government. In part, the government’s involvement in creating a Khmer Rouge tribunal was more concerned with avoiding a fully international, or American-led, tribunal. The international involvement in the hybrid model of the ECCC was important for its success as a means to confer legitimacy on the Cambodian government but it also brought risks. The court might diverge from the government’s accepted narrative of the Khmer Rouge regime and create conditions for foreign governments to confront Cambodia on human rights issues. Ultimately, the model for the ECCC that the Cambodian government secured allowed it to pursue the benefits of international legitimacy through partial adherence to the expectations of transitional justice but with enough practical control that meant the court did not pose a risk to domestic political supremacy.
International Comparisons
African Truth Commissions The assumption of transitional justice literature that mechanisms are employed for the pursuit of liberal democracy is perpetuated because cases are selectively chosen which already adhere, at least partially, to those goals and expectations. As I discussed in Chapter One, if a transitional justice mechanism is not in the form typically expected 207 then it is generally not included in most of the literature. This selection bias confirms existing analyses, justifies the continual creation of transitional justice mechanisms, and narrows how the definition of transitional justice is employed in practice. There is, therefore, a series of transitional justice cases that are normally overlooked. The cases I discuss in this section draw on only a very small number of academic works, unlike those mechanisms acknowledged as transitional justice which generate considerable attention. Brian Grodsky uses three cases in Africa (Chad, Zimbabwe, and Uganda) to “explore the conditions under which repressive leaders launch truth commissions”.1 In Chad, a new but still repressive government investigated crimes committed by its predecessor, and in Uganda and Zimbabwe the commissions were established to examine human rights violations but without any change of government.
In December 1990 the “Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habré, His Accomplices and/or Accessories” was established in Chad.2 It was established by presidential decree, one month after the previous government was overthrown, to look into human rights violations and the embezzlement of state funds by the former President Hissène Habré and his government officials.3 The commission was hampered by a lack of resources, and actually operated out of a former detention centre due to a lack of office space. It was also hampered by threats from former security agents which resulted in many commission members judging it unsafe to participate.4 Nonetheless, the commission produced a detailed report on human rights abuses during the Habré regime and published details of the involvement of foreign governments in funding and training abusive security forces.5 The commission estimated that forty thousand people died in prison or were executed during this time, and that there were more than fifty-four thousand political prisoners.6 The Chadian commission was also the first truth commission to publish the names and
1 Brian Grodsky, "Justice Without Transition: Truth Commissions in the Context of Repressive Rule," Human Rights Review 9, no. 3 (2008): 285. 2 Hissène Habré’s presidency of Chad from 1982 to 1990 was marked by the use of security forces to kill and torture tens of thousands of political enemies, the sexual slavery of female prisoners, and the persecution of ethnic minority groups. 3 Priscilla Hayner, "Fifteen Truth Commissions—1974 to 1994: A Comparative Study," Human Rights Quarterly 16, no. 4 (1994): 623. 4 Ibid., 623-24. 5 Ibid., 624. 6 "Chad: Report of the Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habré, His Accomplices and/or Accessories," in Transitional Justice: Laws, Rulings, and Reports, ed. Neil Kritz (Washington D.C.: United States Institute of Peace Press, 1995), 81. 208 photographs of those it considered to be responsible for human rights violations, including officials in the new government.7
In many ways this commission operated in the same way that a commission in a democratising environment would: it was used to legitimate a new government in opposition to the old elites. However, the ongoing repression of the new authorities diminished the credibility (domestically and internationally) of the commission, its report, and the motivations of the government for pursuing a commission; it strengthened the perception (possible for any truth commission) that it was intended to discredit the old elites rather than to find the truth about what had occurred.8 Some of the language of the report also suggested this less acceptable motivation, saying that the “current government should be given credit for having taken this initiative to enlighten the Chadian public concerning the disastrous reign of the tyrant Habré”.9 Of Habré, the report said he was “a man without scruples”, that despite his education at French universities “his comportment and thinking are not much different from those of a camel thief”, and that it “is obvious that Habré’s penchant for crimes is not the result of special circumstances or blind chance, but rather an innate predisposition”.10 The crimes of this era were later addressed by a specially constituted Extraordinary African Chambers, located in Senegal, where he had been arrested. In May 2016 this court found Hissène Habré guilty of crimes against humanity and sentenced him to life in prison. The investigating judges at the court used the 1990s report of the truth commission as a base, and the president of the commission testified before the court.11 Although the commission was afforded minimal academic attention it has since been given new legitimacy by its connection to the Extraordinary African Chambers.
In Zimbabwe, a Commission of Inquiry was established in 1983 by Robert Mugabe, who was Prime Minister at the time and subsequently President.12 It was launched in response to criticism, both domestically and internationally, over human rights violations
7 Hayner, "Fifteen Truth Commissions," 625. 8 Grodsky, "Justice Without Transition," 285. 9 "Chad: Report of the Commission of Inquiry," 57. 10 Ibid., 58-59. 11 Human Rights Watch, "Q&A: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal," https://www.hrw.org/news/2016/05/03/qa-case-hissene-habre- extraordinary-african-chambers-senegal, 3 May 2016. 12 The commission, established three years into Mugabe’s time as Prime Minister, was established to respond to the Gukurahundi massacres from January 1983 when twenty thousand civilians were killed by the notorious Fifth Brigade of the army. Documents made public in 2015 added evidence to the long held suspicion that these killings were ordered by Mugabe against “dissidents”. Stuart Doran, "New Documents Claim to Prove Mugabe Ordered Gukurahundi Killings," The Guardian, 19 May 2015. 209 committed by the army, and particularly the extrajudicial killings of civilians.13 A report was compiled by the commission and given to the government but never made public. That it was never published suggests that it had found evidence of human rights violations and was critical of the government, the army, or both.14 At least one person who gave evidence to the commission was later arrested and disappeared.15 The same army unit that had been the focus of the investigation was later moved to a different area where a similar pattern of human rights violations reoccurred.16 This commission was partly a response to domestic pressure, and it seems to have conducted its work with at least some freedom. This freedom shows there was some appearance that needed to be adhered to, but that the government maintained control of the ultimate outcome.17
The “Commission of Inquiry into ‘Disappearances’ of People in Uganda since the 25th of January, 1971” was established in June 1974 by President Idi Amin Dada.18 The commission interviewed 545 witnesses and reported on 308 cases of disappearances, whilst noting that these were only a fraction of those disappeared by the special security bodies set up by the President.19 Although most of the proceedings were held in public, the report was sent to the government and never published. The only public acknowledgments of the report were distorted versions of its conclusions, which were produced by state media blaming guerrilla movements opposed to the government for the disappearances.20 Some security officers were tried at a military tribunal but all were acquitted, and the same security bodies went on to commit more human rights violations.21 The commissioners, on the other hand, found themselves subjects of interest to the police. One of the four commissioners was framed with committing murder and sentenced to death, and another fled the country.22
That the report was not made public and the commissioners were targeted afterwards suggests that the commission had a relative degree of independence from the executive
13 Richard Carver, "Called to Account: How African Governments Investigate Human Rights Violations," African Affairs 89, no. 356 (1990): 394. 14 Hayner, "Fifteen Truth Commissions," 617. 15 Carver, "Called to Account," 394. 16 Ibid. 17 Grodsky, "Justice Without Transition," 287. 18 Hayner, "Fifteen Truth Commissions," 611. Addressing the first three years of the Amin government, the commission looked into the disappearances and abuses conducted by the army, military police, intelligence body, and special security bodies established by Amin. Estimates for those killed during the entirety of Amin’s regime from 1971 to 1979 range from eighty thousand to five hundred thousand. 19 Carver, "Called to Account," 399. 20 Ibid. 21 Ibid., 399-400. 22 Ibid., 400. 210 and that the subsequent report reflected this independence in criticism of the government or the President. Grodsky has suggested that the commission was established to appease an international audience that had been critical of human rights violations and that allowing it to operate freely gave it greater legitimacy and greater currency as a positive human rights initiative.23 The control of the report’s contents and its lack of outcomes was the result of the government’s ongoing authoritarian control which allowed it to ensure that it would not be embarrassed or criticised because of the report. The commission was quickly forgotten and when a Commission of Inquiry was established in 1986 by a new government there was no reference to its predecessor.24
Crucially in each of these three cases, the authorities which had established the truth commission retained enough control (of either the process or its outcomes) to ensure that only acceptable conclusions which did not challenge the government’s power would emanate from these processes. These cases are almost entirely ignored by the transitional justice literature, with the limited academic discussion occurring either in the early 1990s, before transitional justice was regarded as a field of its own with a liberal democratic paradigm, or in scholarship pointing out the absences of these cases. Without explicit justification for their exclusion, it seems they are not considered worthy of notice in transitional justice scholarship.
Uzbekistan In Uzbekistan, a truth commission was held in 1999 that is largely unknown domestically, internationally, or in transitional justice scholarship.25 Islam Karimov was both the last President of the Uzbek Soviet Socialist Republic, and President of independent Uzbekistan from 1991 to 2016. He held this position for twenty five years, winning re-election in 2015 with an improbable ninety percent of the vote, and was criticised by human rights organisations for a consistent policy of imprisonment and torture of human rights advocates, journalists, and political opponents.26 In 1999 he established the Commission for the Promotion of the Memory of Victims.27 Grodsky has argued that “the very repression that has allowed Karimov to control the state and most of society has created conditions that make transitional justice possible and even
23 Grodsky, "Justice Without Transition," 286. 24 Hayner, "Fifteen Truth Commissions," 613. 25 Brian Grodsky, The Costs of Justice: How New Leaders Respond to Previous Rights Abuses (Notre Dame, Indiana: University of Notre Dame Press, 2010), 179. 26 Human Rights Watch, "'Until the Very End': Politically Motivated Imprisonment in Uzbekistan," September 2014; Alec Luhn, "Islam Karimov Re-elected Uzbekistan's President in Predicted Landslide," The Guardian, 31 March 2015. 27 Brian Grodsky, "Producing Truth: The Politics of Investigating Past Human Rights Violations in Post-Communist States," World Affairs 169, no. 3 (2007): 127. 211 likely”.28 Since Karimov would be able to control the operation and outcome of any transitional justice mechanism, he could procure the benefits of doing so without any of the risks that would be present in a less authoritarian country.
The commission was primarily concerned with the government’s international reputation, and was tied to a very specific moment. Uzbekistan had been shifting its foreign policy focus over the course of the 1990s from an emphasis on relations with Russia to strengthening relations with the United States.29 The commission was launched in the months after a political crackdown that had been publicly criticised by foreign leaders. It also came immediately before a high-level U.S.-Uzbek Joint Commission meeting which brought closer cooperation on counter-terrorism measures and a doubling of the aid budget for that year.30 The commission could not have been designed to produce any meaningful or detailed findings, or objectionable recommendations. It was given only one month to consider nearly a hundred and fifty years of archives and produce a report, and had the power only to make “suggestions and recommendations on how to perpetuate their [the victims’] memory”.31 The commission seems primarily to have been created for the sake of its existence; its design and authority left no doubt it would not pose a challenge to Karimov or his domestic power.
Although the commission was not intended for a domestic audience—it is largely unknown in Uzbekistan where Karimov held extensive control over the media—it nonetheless made sure to present a particular categorisation of history. It focussed primarily on crimes committed from the nineteenth century until the Second World War. The crimes of the Soviet period were linked with those of the Tsarists so that rather than associating communism with these crimes it instead stigmatised the Russian ‘other’ as the perpetrators.32 The focus of events from more recent history, and therefore from the lifetime of current leaders, were chosen with care. Within this recent history, the greatest attention was given to a period during the 1980s when Moscow attacked the Uzbek Communist Party for embezzling funds, again emphasising the Russians as the problem rather than oppression by the communist authorities.33 Similar concerns for telling the correct narrative were present in Cambodia.
28 Grodsky, "Justice Without Transition," 289. 29 Ibid., 291. 30 Ibid. 31 Quoted in Grodsky, "Producing Truth," 127. 32 Grodsky, The Costs of Justice, 182. 33 Grodsky, "Producing Truth," 127. 212
In both Cambodia and Uzbekistan the leaders of the new order were also themselves members of the old regime. Both governments constructed a transitional justice mechanism that portrayed its leaders as victims or heroes but not as perpetrators. They also chose the bounds they were not willing to cross; they were pursuing international legitimacy but with control of the narrative and minimal risk to domestic power. In Uzbekistan holding a truth commission was one of the easier routes to fulfilling human rights criteria and was preferable to, for example, holding fair elections or allowing domestic human rights activism. However, in a legitimate truth seeking exercise the current elites would have come under scrutiny, which would have been an unacceptable price to pay for the potential benefits of international relations. In both Cambodia and Uzbekistan it was possible to enforce strict boundaries on the transitional justice mechanism because each government had the support of other foreign powers. Russian support for Uzbekistan (despite the anti-Russian tenor of the transitional justice mechanism) and Chinese support for Cambodia was not tied to any conditions about democracy or human rights.34 Therefore, although both countries were seeking improved relations with America and other countries styled as the international community, it would always be possible to reject their strictures if they threatened the government’s domestic power.
Bangladesh The examples I have presented thus far focus on the employment of transitional justice mechanisms to further international goals. There are other examples, however, which focus far more on domestic audiences. When garnering international legitimacy is not part of the transitional justice mechanism’s purpose the extent to which it must appear to be pursuing liberal democratic goals, particularly through the performance of procedural justice, is lowered. In this section I consider the International Crimes Tribunal (ICT) which is currently operating in Dhaka, Bangladesh. The ICT bears some similarities to the ECCC but without any of the international participation and its consequences.
The crimes the ICT is adjudicating stem from the 1971 Liberation War when East Pakistan became Bangladesh. Estimates of those killed range from twenty-six thousand (from a Pakistan government report from 1972) to three million (the origin of this figure is unclear but it is the one favoured by the Bangladeshi government) whilst one recent academic work estimated 269,000 war deaths based on World Health Organisation
34 Grodsky, The Costs of Justice, 175. 213 data.35 Those on trial at the ICT were involved with local militia groups which supported the Pakistan Army, and are now prominent members of the main opposition parties: the Bangladesh Nationalist Party and Jamaat-e-Islami.
Precise figures for the number of people detained, tried, or convicted in national Bangladeshi courts in the early 1970s are hard to substantiate. More than thirty thousand people were detained, trials occurred for nearly three thousand of these people, but less than a third of these trials resulted in a conviction.36 In late 1973 the vast majority of those detained were released under a general amnesty, although this was not supposed to cover those convicted or accused of murder, rape, or arson.37 On the other hand Bangladesh was never able to prosecute any Pakistan army personnel. A law establishing an International Crimes Tribunal was first passed in 1973 but was never used. At that time, India held more than 90,000 Pakistani prisoners of war, 195 of whom had been identified by Bangladesh as war crimes suspects. All bar the 195 were released in August 1973 and the rest were released and repatriated to Pakistan in 1974 in exchange for Pakistan recognising the existence of Bangladesh.38 Military governments, the power of conservative groups with ties to Pakistan, and general political vagaries limited the opportunities for a trial.39 The Awami League, the party most closely associated with the independence struggle, overwhelmingly won the 2008 election with the promise of a war crimes court as part of its platform, and subsequently amended the 1973 law in 2009 to create the current tribunal.40
The International Crimes Tribunal prosecutes crimes under international law but despite its name is otherwise firmly rooted in the domestic system. It is staffed by Bangladeshi nationals with the exception of a handful of international defence lawyers. At the time of writing six people have been executed and more than twenty face pending death
35 Hamoodur Rehman Commission of Inquiry into the 1971 War, Hamoodur Rahman Commission : Supplementary Report as Released by the Government of Pakistan (Arc Manor, 2007); Bina D'Costa, Nationbuilding, Gender and War Crimes in South Asia (London: Routledge, 2011), 76; Ziad Obermeyer, Christopher J. L. Murray, and Emmanuela Gakidou, "Fifty Years of Violent War Deaths from Vietnam to Bosnia: Analysis of Data from the World Health Survey Programme," BMJ 336, no. 7659 (2008): 1482-86. 36 Suzannah Linton, "Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation," Criminal Law Forum 21 (2010): 205. 37 D'Costa, Nationbuilding, Gender and War Crimes in South Asia, 147. 38 Linton, "Completing the Circle," 203. 39 Bina D'Costa, "Of Impunity, Scandals and Contempt: Chronicles of the Justice Conundrum," International Journal of Transitional Justice 9 (2015): 358. 40 Morten Bergsmo and Elisa Novic, "Justice After Decades in Bangladesh: National Trials for International Crimes," Journal of Genocide Research 13, no. 4 (2011): 504; D'Costa, "Of Impunity, Scandals and Contempt," 358. 214 sentences or have been sentenced to prison terms by the ICT.41 There has been minimal engagement in the process from the UN or from foreign governments that have been involved in assisting tribunals in other countries. The inclusion of the death penalty has been a major reason behind international reluctance to be involved in the project. In a letter to the Bangladeshi Minister of Foreign Affairs and Minister of Justice, U.S. Ambassador-at-Large for War Crimes Issues Stephen Rapp warned when the tribunal was being established that retaining the death penalty as a possible punishment meant “the ICT could lose assistance from United Nations programs and from the development agencies of the European Union or from states that promote the abolition of capital punishment”.42
International involvement is also hindered because the tribunal primarily prosecutes high-ranking members of the opposition parties and there are deficiencies in the procedures followed by the court. Convictions have been based on hearsay evidence, defence lawyers have been given inadequate time to prepare their briefs and have been denied access to their clients, critics of the court have been prosecuted, parliament has changed laws to achieve the desired outcome after the fact, and the language used by judges in their verdicts has been emotionally charged and highly nationalistic.43 The court has accordingly been criticised by international human rights groups.44 In general, however, international interest from NGOs or from governments has been limited; the tribunal seems to be dismissed as irrelevant, rather than seen as desirable or dangerous. Domestically, however, the tribunal and its verdicts have been a highly charged issue. The international criticism of the court has been dismissed as support for war criminals.45 Protests have been staged in support of the defendants as well as in
41 David Bergman, "Death Sentences for Two Bangladesh Leaders Upheld," Al Jazeera, 18 November 2015; "Bangladeshi War Crimes Court Sentences Four to Death," SBS News, 3 May 2016; Amnesty International, "Bangladesh: Nizami Execution Will Not Deliver Justice," https://www.amnesty.org/en/latest/news/2016/05/bangladesh-nizami-execution-will-not-deliver- justice/, 10 May 2016; "Bangladesh War Crimes Trial: Key Accused," BBC News, 4 September 2016, http://www.bbc.com/news/world-asia-20970123. 42 Cited in International Crimes Strategy Forum, "ICSF Comment on Observations of US Ambassador-at-Large for War Crimes Issues Mr. Stephen Rapp Regarding the International Crimes Tribunal of Bangladesh," 15 May 2011. 43 Linton, "Completing the Circle," 309; D'Costa, "Of Impunity, Scandals and Contempt," 359-62; Geoffrey Robertson, Report on the International Crimes Tribunal of Bangladesh (International Forum for Democracy and Human Rights 2015), 59, 71, 80. 44 See, for example, International Center for Transitional Justice, "ICTJ Concerned by Retroactive Sentencing in Bangladesh Genocide Trial," https://www.ictj.org/news/ictj-concerned-retroactive- sentencing-bangladesh-genocide-trial, 19 September 2013; Human Rights Watch, "Bangladesh: War Crimes Verdict Based on Flawed Trial," https://www.hrw.org/news/2016/03/22/bangladesh- war-crimes-verdict-based-flawed-trial, 22 March 2016; Amnesty International, "Bangladesh: Nizami Execution Will Not Deliver Justice," 10 May 2016. 45 Linton, "Completing the Circle," 309. 215 disapproval of sentences that were perceived as too lenient. Nearly two hundred people have died, most at the hands of the police, at riots related to the tribunal.46
In both Cambodia and Bangladesh, crimes of the 1970s are being prosecuted many decades later. A combination of domestic and international political factors made the possibility of a judicial process any earlier very difficult in both countries. Although both the ruling parties in Cambodia and Bangladesh are using the tribunals for political purposes, this aspect is far more direct and domestically focussed in Bangladesh where political opponents are being put on trial. The two cases demonstrate opposite sides of the international legitimacy divide: despite the procedural violations at the ECCC it maintains international legitimacy whilst the ICT in Bangladesh is largely ignored or maligned internationally. Domestically however, the ICT has been able to operate much faster and has arguably achieved a greater level of substantive justice for the population. Although deadly riots are not a desirable outcome of a trial, the Bangladeshi population is far more invested in the ICT than the Cambodian population is in the ECCC. The two mechanisms are aimed at different audiences: domestic in Bangladesh and international in Cambodia.
Rwanda In contrast to those transitional justice mechanisms discussed thus far in this chapter, various different approaches have been taken in Rwanda, each of which has been the object of considerable study. These mechanisms were employed to deal with the 1994 genocide when approximately eight hundred thousand Tutsis and moderate Hutus were killed in one hundred days. The Rwandan Patriotic Front (RPF), formed by exiled Tutsis, fought to take control of Rwanda and formed a new government in July 1994 which continued to lead the country in 2016. This new government prosecuted thousands of people in the domestic courts but it had more than one hundred thousand people in detention during the 1990s. To deal with the overwhelming number of people accused of crimes a system for local dispute resolution, known as the gacaca courts, was created in 2001.47 The gacaca system stems from traditional community justice in Rwanda and was adapted to hold local hearings for people accused of crimes except for the planning of genocide. Of particular relevance to this thesis is the International Criminal Tribunal for Rwanda (ICTR) which was established by the UN Security Council with a mandate to “prosecute persons responsible for genocide and other serious violations of international
46 Robertson, Report on the International Crimes Tribunal of Bangladesh 13. 47 William A. Schabas, "Genocide Trials and Gacaca Courts," Journal of International Criminal Justice 3, no. 4 (2005): 880-81. 216 humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994”.48
The new RPF government of Rwanda requested UN help in establishing a tribunal, but ended up voting against the UN resolution which established the ICTR.49 Many of the concerns of the Rwandan government were similar to those of the Cambodian government in establishing the ECCC. They wanted a trial to be held in-country, some control over who would be prosecuted, a narrow mandate to ensure that no one in the existing government was prosecuted, and the involvement of local judges alongside international judges. The UN on the other hand, insisted on a wholly international process with no role for the Rwandan government or judiciary. Out of concerns for security and impartiality, the UN also specified that the tribunal be located outside Rwanda (Arusha in Tanzania was later chosen as the location for the trials).
The Rwandan government wanted the temporal jurisdiction of the court to extend from 1990 to July 1994 and for subject matter jurisdiction to cover only the crime of genocide.50 This combination of jurisdictions would have included the planning stages and trial massacres that occurred in the lead-up to the 1994 genocide, as well as the genocide itself, but would have excluded crimes committed by the RPF in the second half of 1994. However, the UN Security Council insisted that the temporal jurisdiction of the court cover only the calendar year of 1994 and that its subject matter jurisdiction cover war crimes and crimes against humanity as well as genocide. By including all of 1994 and encompassing a broader range of crimes, the court potentially had jurisdiction to consider crimes committed by the RPF. Excluding crimes committed before 1994 served dual international interests: funding concerns about how much the tribunal would cost if it were to consider a much broader time period; and political concerns of Security Council members to avoid implications their citizens had any complicity in crimes committed in the lead-up to the genocide.51
48 United Nations Security Council, "Resolution 955," S/RES/955 (1994), 8 November 1994, 3. 49 United Nations Security Council, "Letter Dated 28 September 1994 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council," S/1994/1115, 29 September 1994. 50 Christopher Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," International Organization 55, no. 3 (2001): 667. 51 José Alvarez, "Crimes of States/Crimes of Hate: Lessons from Rwanda," Yale Journal of International Law 24, no. 2 (1999): 397-98. Alvarez reports that “whether or not it is true, as many charge, that U.N., United States, Belgian, and French officials all ignored clear warnings of impending genocide, that French officials gave aid and comfort to genocidaires before the killings, during them, and after, or that international humanitarian relief agencies made it possible for some of the genocidaires to continue their extermination plans from inside refugee 217
These differing opinions regarding temporal jurisdiction were also present in Cambodia. As I discussed in Chapter Three, the Cambodian government at times proposed a temporal jurisdiction extending from 1970 to 1998 rather than limiting the court to the strict parameters of the Khmer Rouge regime. This broader temporal jurisdiction would have encompassed particularly the role of American bombing in the early 1970s and international support for the Khmer Rouge following their overthrow in 1979 and was thus most unwelcome to the United States. In short, even before a court begins investigations or prosecutions, the temporal jurisdiction it is given conveys what the designers consider to be criminal and potentially prosecutable.
In the case of Rwanda and the establishment of the ICTR, the Rwandan government was not able to secure any aspect of the tribunal in the way that it wanted. The priorities of the UN, in this case primarily embodied by the Security Council and its members, won out on each issue. Rwanda, which held a non-permanent seat on the UN Security Council 1994–1995, voted against the UN Security Council Resolution which established the ICTR in November 1994.52
There were also similar challenges in both Cambodia and Rwanda because of the destruction the countries had suffered. Before 1994 Rwanda had approximately seven hundred and fifty judges and magistrates but only fifty of these had formal legal training. By the end of 1994 less than two hundred and fifty judges had survived and only twenty with legal education remained in the country.53 Physical infrastructure had also suffered significant damage with courtrooms, case files, and law books having been destroyed.54 In explaining why Rwanda had initially sought (despite later rejecting) an international tribunal, however, the government’s representative to the UN did not focus on lack of domestic capacity but rather the practicalities of pursuing suspects who had fled to other countries, the need to avoid “any suspicion of… speedy, vengeful justice”, and the way that these crimes were “a crime against humankind and should be suppressed by the international community as a whole”.55
camps, one doubts that such inquiries will be pursued in the course of proceedings organized and conducted by judges under U.N. auspices and subject to its funding”. 52 Catherine Cissé, "The International Tribunals for the Former Yugoslavia and Rwanda: Some Elements of Comparison," Trasnational Law and Contemporary Problems 7, no. 1 (1997): 107. 53 Shivon Byamukama and John A. Kapranos Huntley, "Criminal Justice in the Aftermath of the 1994 Rwanda Genocide," in The Criminal Law of Genocide: International, Comparative and Contextual Aspects, ed. Paul Behrens and Ralph Henham (Hampshire, England: Ashgate, 2016), 239; Elizabeth Neuffer, The Key to My Neighbor's House: Seeking Justice in Bosnia and Rwanda (New York: Picador, 2001), 257. 54 Neuffer, The Key to My Neighbor's House, 257. 55 United Nations Security Council, "Official Record of 3453rd Meeting," S/PV.3453, 8 November 1994, 14. 218
The timing of the establishment of the court is a crucial difference between Rwanda and Cambodia. In Rwanda, the UN passed a resolution less than six months after the genocide ended to establish a tribunal. In Cambodia these discussions did not even start until eighteen years after the end of the Khmer Rouge regime, and took another six years before they arrived at a model for the UN to vote on. This period changed the power dynamics of the planning process. Rwanda was a newly established government, in an immediate post-conflict context. Key suspects had fled the country. Rwanda needed international assistance to rebuild. Cambodia still received significant international aid and had problems with the education level of the judiciary when discussions began with the UN. However, the period of rebuilding had allowed the government to strengthen its power. In consequence it was not, and did not feel, so reliant on the UN. As Rwanda strengthened and recovered from the genocide, similarities emerged with how the Cambodian case would unfold. Although the Rwandan government was not able to influence the model of the ICTR when it was created, it found different ways to do so during the course of the tribunal’s operation.
In 1999 Carla del Ponte was appointed as the prosecutor to the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICTR, at the time a joint position. In December 2000 she announced that “special investigations” were underway into crimes alleged to have been committed by Rwanda Patriotic Front soldiers in 1994, the very forces that brought the new government to power.56 After working behind the scenes to procure government cooperation, in April 2002 Del Ponte said publicly that “cooperation inside Rwanda has been very difficult” and that by the end of the year she would issue the first indictments for the killing of Hutu civilians by Tutsi soldiers in 1994.57 This news was received poorly by the Rwandan government. Although it did not specifically discuss the RPF investigations, drawing further attention to them would not have helped, the government stepped up criticism of the ICTR for its slow progress and for scandals of the time, and encouraged survivor groups to do the same.58 Then, on 7 June 2002, Rwandan authorities blocked a UN plane from flying a group of survivors due to testify on behalf of the prosecution at the tribunal. This move was portrayed by Rwandan officials as being about protecting the witnesses. It was said that they would be free to travel when new government regulations regarding necessary documentation were complied with.59
56 International Criminal Tribunal for Rwanda, "Prosecutor Outlines Future Plans," http://unictr.unmict.org/en/news/prosecutor-outlines-future-plans, 13 December 2000. 57 Chris McGreal, "Genocide Tribunal Ready to Indict First Tutsis," The Guardian, 5 April 2002. 58 Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge: Cambridge University Press, 2008), 194-95. 59 Ibid., 212-13. 219
The process of trials at the ICTR was effectively halted until the government allowed prosecution witnesses to travel to the court from August.60
However, the issue did not end with the resumption of travel. The Rwandan government and the ICTR leadership continued to criticise each other. In late 2002 the government made its first call for Del Ponte’s resignation, and there had been no indication that arrests of RPF soldiers were imminent.61 In 2003 the Rwandan government secured the support of the United Kingdom and the United States at the UN to separate the positions of prosecutor for the ICTY and ICTR, which resulted in the removal of Del Ponte from the position at the ICTR. Although this change was ostensibly about efficiency, Del Ponte has said that she would have preferred to retain responsibility for the ICTR and asserted that her removal from the ICTR was a result of the Rwandan government’s objections to her pursuit of these “special investigations”.62 The Rwandan government demonstrated clearly that it now had the capacity to ensure the tribunal did not stray beyond acceptable bounds. No member of the RPF was ever charged.
Distinguishing Cambodia
There are many ways to pursue transitional justice, and many reasons why a government might choose to do so. The pursuit of liberal democracy is not a necessary precursor or companion to transitional justice. As I argued in Chapter Five, Cambodia was not pursuing any of the liberal democratic goals normally ascribed to transitional justice mechanisms. In some instances the Cambodian government was actively working to ensure the ECCC did not jeopardise the status quo where the Cambodian courts could be used as political tools. Ultimately, the ECCC was fulfilling few of the normative expectations of the transitional justice literature. This divide between the expectations of the literature and the reality of Cambodia resulted from the ECCC’s position at the boundaries of several poorly defined aspects of transitional justice. In terms of definitions, the ECCC fulfilled the relatively straightforward criteria for being regarded as a mechanism created to deal with past violence. However, it did not fit with many of the implicit assumptions about what a transition is or when a transitional justice mechanism is used. Although the ECCC has maintained its status as a legitimate institution, at times it has done so only by a narrow margin.
60 Ibid., 215, 19. 61 André Guichaoua, From War to Genocide: Criminal Politics in Rwanda, 1990-1994, trans. Don Webster (Madison, Wisconsin: University of Wisconsin Press, 2015), 310. 62 Luc Reydams, "The ICTR Ten Years On: Back to the Nuremberg Paradigm," Journal of International Criminal Justice 3 (2005): 978-79. 220
The decades following the overthrow of the Khmer Rouge regime did not present a clear moment or direction of transition. As I argued in Chapter One, transitional justice literature does not clearly define what is meant by a transition, when it starts or ends, whether it is a discrete moment of transition or an indeterminate period, or how it is connected to liberal democracy. This lack of specificity allows transitional justice literature and advocacy to encompass a wide variety of mechanisms but is analytically problematic. In some cases there is a clear trajectory from an authoritarian past towards a liberal democratic future via transitional justice mechanisms. No such path is clear in Cambodia. Although 7 January 1979 is commemorated as the date of the overthrow of the Khmer Rouge regime, the movement received international backing for over a decade after that date. It continued to exist for another two decades and exerted control over various parts of the country. The new authorities in Phnom Penh, the People’s Republic of Kampuchea (PRK), were far less violent than the Khmer Rouge, allowed many more freedoms, and instituted transitional justice mechanisms. However, they established a communist government and were denied international recognition. The changes in 1979 were thus far from being an archetypal transition featuring internationally recognised transitional justice and the pursuit of liberal democracy.
In 1993, the UN orchestrated multiparty elections which marked a high point of democracy in Cambodia, at least in terms of the quality of elections. Although this event marked an apparent shift in the direction of liberal democracy, the agreement establishing the UN mission also gave the Khmer Rouge renewed political legitimacy, contained only oblique reference to the crimes of the 1970s, and did not include any calls for justice or truth-seeking. Even when the Khmer Rouge movement ultimately refused to participate in the elections, its continued existence as an armed presence forestalled attempts at transitional justice by the newly legitimised Cambodian government. The Khmer Rouge movement was not fully defeated until the late 1990s by which point its power had been gradually weakened by defections and military defeats. The movement responsible for the deaths of millions ended with a whimper and its defeat marked no significant change in political power in Cambodian society. The current ruling elites of the Cambodian People’s Party (CPP) are either the same people who established the new government in 1979, or their political (and sometimes actual) descendants. Much has changed in Cambodia in this time, but Hun Sen has nonetheless been Prime Minister since 1985.
None of these changes correspond with the typical transition from authoritarianism to liberal democracy that the literature expects. If the only acceptable outcome of the 221 transition is liberal democracy, and if this outcome is linked to the use of transitional justice mechanisms, then it may be appropriate to consider the transitional period to be ongoing in Cambodia. Without a clear idea of transition, or the connection between that transition and a judicial or truth-seeking mechanism, it is hard to say precisely how Cambodia is diverging from the norm, and yet it is.
The timing of the creation of the ECCC also sets it apart from the expectations of transitional justice literature. The PRK held a trial in 1979 but because it was organised by a communist government and did not prioritise standards of procedural justice scholars rarely consider it to fit within the idea of transitional justice. The staggered and atypical progress of Cambodia’s transition meant that the timing of the ECCC, three decades after the Khmer Rouge regime, was unusual. It is more common to expect trials in the immediate aftermath of regime change or the end of mass atrocities.63 As I argued earlier in this chapter with reference to Rwanda, the passage of time can have a significant impact on how a government approaches a transitional justice mechanism, or its partners in that mechanism.
As well as representing a complicated idea of transition, the ECCC also sits on the boundary of international legitimacy. There are two relevant types of international legitimacy associated with the ECCC. The first, which I discuss here, is the extent to which the ECCC is regarded as a legitimate institution by foreign governments, international NGOs, and scholars. The second, which is closely connected to the first and which I discuss later in this chapter, is the impact of the ECCC’s existence and operation on the international legitimacy afforded to the Cambodian government.
Although there is no clear standard for a transitional justice mechanism to be regarded as legitimate or illegitimate, the distinction is nonetheless pervasive and implicit amongst scholars, advocates, and foreign governments within the international community. At the extreme, the truth commissions in Chad, Uganda, and Zimbabwe are entirely dismissed or ignored in the literature for being used as tools of repressive governments.64 In Cambodia, the 1979 People’s Revolutionary Tribunal (PRT) was internationally rejected and discounted, both at the time and largely since, because it focussed on performative and substantive aspects of justice rather than on recognised correct procedures. The current International Crimes Tribunal in Bangladesh is pushed
63 Olsen, Payne and Reiter found that there was an average of 4.2 years before a trial was held, if a trial was going to be held. Tricia Olsen, Leigh Payne, and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington D.C.: United States Institute of Peace, 2010), 106. 64 Grodsky, "Justice Without Transition," 284-86. 222 into illegitimacy by its prosecutorial focus on opposition politicians, its application of the death penalty, and its intolerance towards critics of the tribunal process.65 All of these mechanisms are largely excluded from the label transitional justice, presumably because they fail to conform to some unspecified standard.
Although the ECCC has not been excluded from the transitional justice canon, it has come under criticism from a number of sources. This criticism colours its international legitimacy. The U.S. government originally refused to contribute any funding to the court. The American ambassador to Phnom Penh explained in 2006 that it was “way too soon to be clear if the trial is meeting international standards” and stated his belief that not holding a trial would be “better than a farce”.66 The first American financial contribution came in September 2008, with a Deputy Secretary of State saying the U.S. wanted “a voice along with other donors” to help the tribunal “ensure that it continues to improve its management and address the issue of corruption”.67 This statement did not reflect a great deal of confidence but since then the U.S. has become the second biggest contributor, after Japan. Human rights NGOs have also criticised the ECCC. These criticisms have primarily focussed on government interference but have also revolved around issues of corruption and the slow progress of cases. When the police refused to execute arrests warrants in Cases 003 and 004 Brad Adams, Asia Director at Human Rights Watch, called it “the last straw after years of obstruction, delay, and corruption”.68 Amnesty International has released reports with titles such as “Khmer Rouge Tribunal: Last Chance to Salvage Justice?” and “Khmer Rouge Court Lets Victims Down Yet Again”.69 The tone of these criticisms also conveys that the same organisations have been criticising the court repeatedly, but that these criticisms have gained little traction with foreign governments, and none with the Cambodian government.
The participation of the UN and the way that the court has operated so far, whilst flawed, mean that the ECCC is likely to continue to be regarded as a legitimate institution. The ECCC is not unique amongst transitional justice mechanisms or
65 D'Costa, "Of Impunity, Scandals and Contempt," 357-66. 66 Charles McDermid, "Doubting US Withholds KRT Funds," Phnom Penh Post, 11 August 2006. There had been a change of executive governance of the United States (from Bill Clinton to George W. Bush) since the pro-tribunal interventions by American diplomats in the late 1990s. 67 Brendan Brady and Georgia Wilkins, "US to Give $1.8m to Troubled KR Tribunal," Phnom Penh Post, 17 September 2008. 68 Human Rights Watch, "Cambodia: Stop Blocking Justice for Khmer Rouge Crimes," 22 March 2015. 69 Amnesty International, "Cambodia: Khmer Rouge Tribunal: Last Chance to Salvage Justice," Index Number: ASA 23/021/2012, 17 December 2012; Amnesty International, "Cambodia: Khmer Rouge Court Lets Victims Down Yet Again," Index Number: ASA 23/009/2011, 27 October 2011. 223 international courts in being criticised. In some ways, criticism denotes an element of legitimacy. Criticism from international NGOs or foreign governments are a means of engagement. The act of criticising, aside from at the extreme end, demarks that a mechanism is worthy of consideration; it is seen as improvable and part of the transitional justice sphere. Significant levels of criticism can detract from international legitimacy for the mechanism and the government. However, this criticism is still a greater mark of acceptance than complete dismissal. Mechanisms that are not considered by NGOs or governments to be worth engaging with, even through criticism, are unable to generate any international legitimacy.
It would take an egregious example of government interference to prompt the UN to withdraw from the ECCC at this stage, given that it has acquiesced in all the problems encountered so far. It is also unlikely that donor states would allow the UN to withdraw prematurely from an institution into which they have been funnelling resources for nearly a decade. The experience of the UN Secretariat’s attempt to withdraw from negotiations in February 2002 indicates that interested states are willing to accept a flawed model, at least somewhat, for the sake of holding a trial at all.
During the conduct of the ECCC, the extent to which it was seen to be adhering to standards of procedural justice was a strong determinant of its legitimacy. As well as the processes enacted during the course of the ECCC’s existence, its closing must also be couched in terms of following the correct procedures. Once the current Case 002/02 concludes (either through convictions or upon the death of both remaining defendants) the ECCC will be allowed to wrap up without pursuing any additional cases.70 The Cambodian government’s opposition to Cases 003 and 004, and minimal interest from foreign governments in pressing the issue, means that these trials are highly unlikely to go ahead. Ultimately, this decision will be based on political and financial considerations. However, the decisions that allow the ECCC not to pursue Cases 003 and 004 will need to be wrapped in legal and procedural language if the court is to preserve the perception of legitimacy. Thus, the ECCC will likely preserve its place as a legitimate institution, in international eyes, but will also be one of the more politically driven and criticised transitional justice mechanisms to do so.
70 There are charges in Case 002 which are not covered in Case 002/01 or Case 002/02 but at the time of writing there are no plans as to what will be done with these charges. Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Civil Party Lead Co-Lawyers Request for Clarification Relating to Remaining Charges in Case 002," Case File 002/19-09-2007-ECCC/TC, E439, 9 September 2016. 224
Explaining Cambodia
The ECCC does not fit neatly into either the liberal democratic ideal of transitional justice or the loose category of transitional justice mechanisms that are employed by repressive regimes and maligned internationally. The Cambodian government worked to ensure the court would not have a significant liberal democratic impact, but the ECCC nonetheless has UN participation and international engagement. Although an international element in a transitional justice mechanism does not guarantee a better process or outcome, it does change the discourse that surrounds that mechanism and its international political implications. Accordingly, whilst the case of Cambodia and the ECCC does not belong to the liberal democratic mainstream, it is also distinct from some of the cases I discussed earlier in this chapter which are dismissed internationally and academically as political tools of a government. It is an example of illiberal transitional justice which sits somewhere between the two.
In the second half of this chapter, I consider how the creation and conduct of the ECCC can be explained without recourse to the liberal democratic explanations. In short, it was established because the Cambodian government thought they could benefit from it. Domestically, the ECCC was one among a number of strategies to prolong the relevance of the memory of the Khmer Rouge era to domestic politics; it marked the CPP’s final defeat of the Khmer Rouge and helped to shape the narrative of the Khmer Rouge era. However, domestic goals were of less importance than international ones. International legitimacy was the central goal of the ECCC for the government. Throughout the negotiation, establishment, and operation of the ECCC the engagement of foreign governments, particularly those that tend to constitute the international community, was the most important aspect to the Cambodian government.
However, this international involvement was not a straightforward benefit. The Cambodian government’s pursuit of a tribunal was at times only about pursuing international legitimacy in the short term or in reference to a particular event and so the model of the ECCC was far from what the government had originally envisaged. Although the government had worked to secure as much control of the mechanism as possible, the presence of the international judges, and the associated international attention, also brought risks. There was a risk that the narrative of the court would get out of hand which could mean that a politically damaging story would be told, or that members of the CPP would be implicated. International involvement risked assisting the liberal democratic reforms the government had worked to prevent, and it risked a broader international confrontation with the ruling party, its power, and its longevity. 225
These risks created tensions and demanded careful balancing acts on the part of the government in the design of the court and in the way that design could be used to control acceptable outcomes. These are the elements of the illiberal balance between liberal transitional justice and transitional justice employed by repressive regimes. Cambodian government leaders wanted to use the court to continue a conversation about the Khmer Rouge but only in a politically useful way, with clear boundaries that would avoid involving CPP members. They wanted the international legitimacy that could come from holding a trial with significant international involvement, but as little international scrutiny as possible, and certainly with no outcomes from that scrutiny that would challenge the government’s authority.
Benefits
Final Defeat of the Khmer Rouge Through their various political incarnations, members of the 1980s PRK and the modern Cambodian People’s Party had been fighting the Khmer Rouge for decades. In the form of the Kampuchean United Front for National Salvation they had fought alongside the Vietnamese army to take control of the country in 1979. As a party and a government they had finally secured international recognition and defeated the Khmer Rouge politically after the 1993 elections. The arrest of Ta Mok in 1999 marked the final military defeat of the Khmer Rouge. The letter from the Cambodian Co-Prime Ministers which began the process of creating the ECCC came two years before this military defeat. The threat of internationally backed prosecutions, but the guarantee of government control over this process, was one of the tools the government used to encourage defections from the Khmer Rouge. Once its role in the defeat of the Khmer Rouge had been completed, a tribunal could still serve as an internationally endorsed symbol of the CPP’s victory over the Khmer Rouge.
Some members of the CPP had also been Khmer Rouge members themselves. Many of them had fled in fear of being purged, and most, if not all, had lost family members during the Khmer Rouge regime. A legal defeat of Khmer Rouge leaders at an internationally backed tribunal would no doubt be a welcome symbol of the CPP’s complete domination of the Khmer Rouge, a group to which CPP members had long been opposed. Following the visit of the UN Group of Experts in 1998 Om Yienteng, chair of the Cambodia Human Rights Committee and a CPP member, said “We have been waiting for the tribunal for 20 years already”.71 Ambassador Hammarberg observed that “Hun Sen once said, with apparent pride, that he had defeated the Khmer Rouge first
71 Beth Moorthy, "Noose Being Prepared for KR Chiefs," Phnom Penh Post, 27 November 1998. 226 militarily, then politically and now would like to seal these achievements through a trial”.72 This aspect of the tribunal’s creation is more than a function of the CPP as an institution; rather it reflects the preoccupations of individuals who dominate the party. They have spent decades of their lives opposing the Khmer Rouge, and being shunned internationally for doing so. The trial is their vindication.
Hun Sen lost his left eye fighting for the Khmer Rouge and he and his wife’s first child died shortly after birth due to poorly trained medical staff.73 The US Ambassador-at- Large for War Crimes Issues, David Scheffer, also recalled stories he was told during a break in discussions with government ministers in 1999. Chief Cambodian negotiator Sok An recounted the death of his two year-old son from a starvation-related illness. The local Khmer Rouge cadres led away the doctor who had tried to help Sok An’s son at the risk of revealing his pre-Khmer Rouge identity. Om Yentieng saw family members shot in front of him and described the complete lack of hope he felt during the regime.74 Heng Samrin’s younger brother and brother-in-law were taken to Tuol Sleng and killed.75 The ECCC allows members of the government to mark the final defeat of a movement they have long opposed.
Beyond the boundaries of personal interests, the focus on defeating the Khmer Rouge can contribute to the CPP’s central claim to power and political legitimacy: they are the party which brought peace and stability to Cambodia. This theme is also used when the prospect of additional prosecutions at the ECCC arises: government spokespeople warn of a return to the Khmer Rouge period. The government’s defence against potentially destabilising factors is portrayed as the only barrier against a return to mass violence of the sort seen during the Khmer Rouge. As well as being present in the rhetoric surrounding the court, this refrain is used to argue that if the opposition party were to take power the country would fall in to civil war and violence. Hun Sen justified arresting an opposition Senator over a Facebook post about the Vietnamese border because it “could cause serious chaos to social security”.76 In a speech warning that the military might take action against the opposition, he called the opposition an “extremist group
72 Thomas Hammarberg, "How the Khmer Rouge Tribunal was Agreed: Discussions Between the Cambodian Government and the UN," Searching for the Truth June-November (2001). 73 Harish C. Mehta and Julie B. Mehta, Strongman: The Extraordinary Life of Hun Sen from Pagoda Boy to Prime Minister of Cambodia, 2nd ed. (Singapore: Marshall Cavendish Editions, 2013), 88. 74 David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton: Princeton University Press, 2012), 389-90. 75 Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the Khmer Rouge, 1975-1979, 2nd ed. (New Haven: Yale University Press, 2002), 394. 76 Vong Sokheng, "PM Says Senator's Arreset Averted 'Serious Chaos'," Phnom Penh Post, 9 September 2015. 227 that attempted to topple the legitimate government” and said the military “will not hesitate to take action against any group that could bring the country towards civil war”.77 And in the lead-up to the 2013 elections, he criticised the opposition’s policy to lower interest rates on loans as meaning “they will do the same as Pol Pot… this will be dangerous and a disaster”.78 The potency of political arguments based on the Khmer Rouge past is declining, and they are increasingly far-fetched, but it is nonetheless a favoured strategy of the CPP in general and Hun Sen in particular.
Shaping the Narrative The narrative of the Khmer Rouge era was very important to the 1980s PRK government and these concerns continue to influence the ruling Cambodian People’s Party. Transitional justice mechanisms are one way of shaping the narrative of a period of mass atrocities. For the PRK the 1979 PRT and the 1983 Renakse petitions were two ways of building a narrative upon which to rest its legitimacy to govern. Hun Sen has encouraged a connection between the ECCC and these early mechanisms, that were not recognised internationally. He wrote in a letter in 1999 to UN Secretary-General Kofi Annan, “In August 1979, the Kampuchean People’s Revolutionary Court conducted a trial and issued a verdict specifying the period from 1975 to 1979. An upcoming court to be set up should consider this verdict”.79 Similarly, Deputy Prime Minister Sok An acknowledged and strengthened this connection by observing at the 2003 ceremony to sign the ECCC agreement that “In this very room we held the world’s first genocide trial”.80 At the PRT, the narrative held that a very small number of evil leaders were responsible for the crimes of the regime.81 The ECCC allows the CPP to keep this narrative alive and further
77 Vong Sokheng, "Military's Role to Help Government, PM says," Phnom Penh Post, 5 March 2015. 78 Vong Sokheng, "CNRP Bank Proposal Ruinous: PM," Phnom Penh Post, 23 May 2013. 79 Letter from Hun Sen to Kofi Annan, 21 January 1999, UN KRT documents. 80 Remarks by HE Sok An at the Signing Ceremony of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committeed during the Period of Democratic Kampuchea, 6 June 2003, UN KRT documents. 81 Interestingly, the ECCC Pre-Trial Chamber and Trial Chamber ruled against the validity of the People’s Revolutionary Tribunal when Ieng Sary’s defence team sought to use their client’s prior conviction to bar his prosecution at the ECCC. The Pre-Trial Chamber held that “the 1979 trial was not conducted by an impartial and independent tribunal with regard to due process requirements”. The Trial Chamber added that “the deficiencies affecting these [1979] proceedings were so significant that the decision resulting from this trial cannot be characterised as a genuine judicial decision”. However, these decisions are not widely known and so can do little damage to the government’s desire to legitimise the PRT through the ECCC. Pre-Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Ieng Sary's Appeal Against the Closing Order," Case File 002/19-09-2007-ECCC/OCIJ (PTC 75), D427/1/30, 11 April 2011, 79; Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Ieng Sary's Rule 89 Preliminary Objections (Ne bis in idem and Amnesty and Pardon)," Case File 002/19-09-2007- ECCC/TC, E51/15, 3 November 2011, 14. See also, Frank Selbmann, "The 1979 Trial of the People's Revolutionary Tribunal and Implications for the ECCC," in The Extraordinary Chambers in the 228 cement it. The ECCC’s conviction of three people so far (and likely ever) barely surpasses the conviction of two people by the PRT and does little to produce a more complex or comprehensive idea of culpability.
It is not unusual for a trial, particularly of historically significant crimes, to play a role in shaping the narrative of those events. Trials of all kinds are performative in nature.82 In some cases the performance of procedure is most prized while in others particular narratives of evil, politics, or nation are more important. Different stakeholders at the same trial will be interested in the production of different narratives and performances. A prosecution and defence present competing narratives of events, attempting to convince an audience of their case. This audience consists of some combination of judges, a jury, and the public. The truths are selected based on their utility; whether the aim is to secure a conviction or acquittal, or to serve a broader narrative. Where a government wants to perpetuate a particular narrative about a period of violence, trials can serve an important function. In Cambodia, the story told at the ECCC is the same one that sits at the heart of the CPP’s origins and its basis for legitimacy. As long as the trial tells the story the correct way, it can contribute to cementing the legitimacy of that story, giving the weight of judicial authority and, in the case of the ECCC, adding international endorsement to a domestic narrative.
Although I have focussed in this section on the Cambodian government’s preferred narrative, it is not only the government that has a stake in how the Khmer Rouge period is discussed. The role of other states in the rise of the Khmer Rouge, international support during their regime, and their prolonged international recognition were never going to be acceptable topics at a Khmer Rouge tribunal. Suggestions by Nuon Chea’s defence team to call Henry Kissinger to testify, amongst a list of three hundred witnesses, were rejected.83 The elision of international culpability is not an unusual feature of the ECCC. The nature of the transitional justice industry ensures most mechanisms have a domestic focus and limit discussions of aspects that could be internationally embarrassing. It limits the ability of the court to reach a more nuanced understanding of the Khmer Rouge regime, which is not its direct purpose, but does not
Courts of Cambodia: Assessing Their Contribution to International Criminal Law, ed. Simon Meisenberg and Ignaz Stegmiller (The Hague: Asser Press, 2016), 77-102. 82 See, for example, Robert P. Burns, A Theory of the Trial (Princeton: Princeton University Press, 1999); Carla De Ycaza, "Performative Functions of Genocide Trials in Rwanda: Reconciliation Through Restorative Justice?," African Journal on Conflict Resolution 10, no. 3 (2010). 83 James O'Toole and Meas Sokchea, "Nuon Chea Walks Out of Hearing," Phnom Penh Post, 27 June 2011. 229 distinguish the ECCC from other transitional justice mechanisms where the roles of foreign governments are rarely explored.
International Legitimacy The domestic goals of a Khmer Rouge tribunal were always subsidiary to the international goals. If the government had only been interested in symbolising the final defeat of the Khmer Rouge and shaping the narrative of that era then it could have done so in a variety of ways. Even if a tribunal had been involved then a domestic process would have afforded the government a much greater degree of control. The 1979 PRT had worked towards similar domestic goals. Although it was hindered by the continued existence and threat of the Khmer Rouge, it crafted a narrative that suited the new PRK government and marked a clear break with the past. The PRT also targeted an international audience, to encourage the recognition of the PRK government rather than the Khmer Rouge as Cambodia’s representative at the UN and other international forums. The government had invited foreign lawyers to participate in the trial and sent copies of the judgement to be circulated at the UN. It was, as I discussed in Chapter Two, an ill-conceived but nonetheless sincere attempt to secure international legitimacy for the nascent PRK government. The ECCC was a means of achieving this unfulfilled goal, a transitional justice mechanism that courted international favour.
During the creation of the ECCC, Cambodia was no longer internationally isolated as it had been in 1979 and the 1980s. However, it was still widely seen as a post-conflict country defined by its past, and in need of special international attention to ensure it lived up to the liberal democratic promise of the 1993 UN mission. Even more than twenty years later, the opposition party and civil society groups refer to the Paris Peace Agreements (which established the UN mission), arguing that it is the “obligation” of signatories to intervene in Cambodia and calling for an international conference “to review gaps in the implementation of the Paris Peace Accords”.84 The Cambodian government has objected to the special mandate for UN monitoring of human rights (originally a Special Representative of the UN Secretary-General, refashioned in 2008 as a Special Rapporteur), attacking the individuals who have held this position, and protesting against the ongoing special treatment of Cambodia.85
84 Alex Willemyns, "CNRP Calls for Paris Peace Agreement Signatories to Intervene," Cambodia Daily, 5 October 2013; Vuthy Huot and Neang Ieng, "Cambodia's Opposition Party Seeks U.N.'s Help to End Political Acrimony," Radio Free Asia, 18 May 2016. 85 Georgia Wilkins and Cheang Sokha, "UN Rights Envoy Quits in Anger," Phnom Penh Post, 18 September 2008; Douglas Gillison, "UN Envoy Informs Human Rights Council of Resignation," Cambodia Daily, 18 September 2008. 230
Regardless of their actual impact, transitional justice mechanisms are regarded, by nations that designate themselves the international community, as a means of effecting transition. As long as the mechanism reaches an adequate level of legitimacy it can be an important step in a country being regarded as a full member of this international community. For example, negotiations for the states of the former Yugoslavia to enter the European Union were conditioned on full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY).86
The ECCC, and the prospect of a Khmer Rouge tribunal more broadly, served international legitimacy goals in both the short and long term. The significant length of time that it took to negotiate and establish the ECCC meant that ideas of international legitimacy had different significance at different times to different Cambodian political actors. At the time of the 1997 letter that began UN involvement in the process, Co- Prime Ministers Norodom Ranariddh and Hun Sen were competing for power and it was made clear to them by the Cambodia Office of the UN High Commissioner for Human Rights that moves towards a Khmer Rouge tribunal would be favourably received internationally. Following the 1997 coup that ousted Ranariddh it was even more important that both men were seen internationally as acceptable leaders as they competed for international recognition. As I noted in Chapter Three, Hun Sen hired an American public relations firm in the aftermath of the coup, and he stated in a December 1998 interview that improving his international reputation was one of his goals for the coming five years.87
During the negotiation process, breakthroughs and concessions from the Cambodian government occurred most frequently after interventions from foreign governments. In each individual moment it was beneficial to the government to be seen to be cooperating, and it was far more important to the government that this perception was held by foreign leaders than by the UN Secretariat. Hun Sen announced the inclusion of an International Co-Investigating Judge during the visit of Japanese Prime Minister Keizo Obuchi. This development was referred to as a “gift” to the visiting leader.88
When the UN Secretariat announced it was withdrawing from negotiations in February 2002 it seems that it was important to them that the blame for this development was
86 Jelena Subotić, "The Paradox of International Justice Compliance," International Journal of Transitional Justice 3, no. 3 (2009): 370. 87 "PM Wants KR Leaders Tried in Cambodia," Cambodia Daily, 4 December 1998. 88 Stefan Smith, "Obuchi Ends Cambodia Visit with Hope Enhanced for Genocide Trial," Agence France-Presse, 12 January 2000. 231 attributed to the Cambodian government and its “lack of urgency”.89 However, the UN Secretariat came under just as much, if not more, criticism for taking this unilateral decision. The American ambassador to Cambodia described the UN Secretary-General as “pretty inflexible” and said the UN chief negotiator had “turned facts on their head”.90 It also allowed the Cambodian government to portray themselves as the reasonable ones, seeking to make headway on this important and challenging issue. Deputy Prime Minister Sok An said at a forum in Stockholm in April 2002, “Let me reiterate clearly that on the Cambodian side the door remains open to a resumption of negotiations with the United Nations, and our Prime Minister has stated we are willing to wait for a change of heart on their side”.91 This impression was further developed when Cambodia offered compromises that were rejected by the UN.92 The Secretariat’s withdrawal allowed the Cambodian government to ally with prominent member states in order to pursue a tribunal. They became part of the solution against an intractable bureaucracy rather than an impediment to progress.
Beyond the series of short-term implications for international legitimacy, the government had a broader concern for the long-term legitimacy that holding a trial could garner. This motivation is evident in communications during the negotiations for a tribunal. During a press conference on his arrival in Phnom Penh to resolve a difficult part of the negotiations, Senator John Kerry presented his framing of the decision Cambodia had to make: “Is it going to join the international community of nations in a legitimate and open way or are we going to continue to have great difficulties?”93 In a letter to Prime Minister Hun Sen following this trip, Kerry also noted
On more than one occasion, you have stated your desire to have Cambodia accorded the full measure of respect which it is due as a sovereign nation. Cambodia’s commitment to achieve accountability for the most serious crimes committed during a very difficult period of its history will have an enormous positive impact on the willingness of the international community to embrace Cambodia as a respected member and to help Cambodia develop in the years ahead. I know it will contribute significantly
89 "Statement by UN Legal Counsel Hans Corell at a Press Briefing at UN Headquarters in New York," 8 February 2002, available at http://www.un.org/News/dh/infocus/cambodia/corell- brief.htm. 90 "Annan Says Cambodia Must Compromise," Phnom Penh Post, 15 March 2002; Matt McKinney, "Ambassador: KR Talks Not Finished Yet," Cambodia Daily, 17 May 2002. 91 "Message by HE Mr Sok An, Minister of the Council of Ministers of Cambodia," Stockholm International Forum, http://www.d.dccam.org/Projects/Affinity/SIF/DATA/2002/page1696.html, 23 April 2002. 92 Kevin Doyle, "Reported UN Snub on KR Shocks Gov't," Cambodia Daily, 5 July 2002. 93 Transcripts of the Visiting U.S. Senator John Kerry, Cambodia, 28-29 April 2000, UN KRT documents. 232
to the willingness of the United States to renew and strengthen its relationship with Cambodia.94 Hun Sen also acknowledged this aspect in a 2002 letter to Secretary-General Kofi Annan, during the period after the UN had withdrawn from negotiations, in which he focussed on the need for Cambodian primacy in dealing with the legacy of the Khmer Rouge. He asserted Cambodia’s jurisdiction and responsibility and added that “such a process is also necessary for Cambodia to obtain an honourable place in international society”.95
Cambodia’s desire for international legitimacy is evident in arenas outside the ECCC and transitional justice. The Cambodian government touts its status as the first Southeast Asian country to sign the Rome Statute on the International Criminal Court, as one of the first “least developed countries” to enter the World Trade Organisation, is particularly proud of the involvement of its landmine clearance teams in other UN missions, and sought a non-permanent seat on the UN Security Council in 2005, citing all of its cooperation with the UN as evidence of its suitability.96
International legitimacy does not exist in isolation from domestic context. The economic engagement and development projects it brings in turn bolster the ruling party’s domestic legitimacy. The foreign money entering Cambodia reinforces the CCP’s position as the party of stability, development, and legitimacy. The international legitimacy of the court can contribute to domestic power, but the sources of the ECCC’s domestic legitimacy are slightly different. The international participation is important to the court’s reputation but the disputes between the government and the UN are of minimal interest as long as the international presence is maintained. Instead, the ECCC’s domestic reputation is tied to the speed and severity of the outcomes it reaches.
Constraints
Ambiguous Desires There are clear potential benefits for the Cambodian government in holding a trial. However, some of these benefits only existed in the short-term. Pursuing these short- term objectives meant that the Cambodian government ended up involved with a tribunal which it was, in some ways, only ambivalent about. Beyond the direct benefits
94 Letter from John Kerry to Hun Sen, 16 May 2000, UN KRT documents. 95 Letter from Hun Sen to Kofi Annan, 28 June 2002, UN KRT documents. 96 Laura McGrew, "Re-establishing Legitimacy through the Extraordinary Chambers in the Courts of Cambodia," in Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society, ed. Joakim Öjendal and Mona Lilja (Copenhagen: NIAS Press, 2009), 260-61; Alice Cuddy and Vong Sokheng, "Meet the Soldiers Keeping the Peace Far From Home," Phnom Penh Post, 25 October 2014. 233 the ECCC was designed to bring, the form of the court also served the function of neutralising possible negative outcomes or alternative scenarios.
In the early 1990s there was a resurgence of attention by governments to international criminal law as the Cold War came to an end. The 1993 establishment of the ICTY and the 1994 ICTR sparked a chain of international criminal law institutions, including the ECCC. International justice for the crimes of the Khmer Rouge, however, was not inevitable. The twentieth century is replete with examples of human rights violations and mass atrocities that have not received a judicial response. Cambodia would, nonetheless, have been a conspicuous absence. In scale, the violence of the Khmer Rouge was unprecedented in recent history, with a quarter of the population killed and the entire country affected by starvation and violence. The Khmer Rouge period also has a prominent place in international conceptions of mass violence: Pol Pot and the killing fields of Cambodia are well known. In 2015, more than two hundred thousand people visited the Choeung Ek Genocidal Center, the tourist site more commonly known as the Killing Fields.97
If the crimes of the Khmer Rouge period was to be addressed, there were a range of ways this could have been accomplished. If the Cambodian government had not chosen to be involved (or chosen not to be involved) then it risked a trial being conducted in a less controlled environment. In 1997 and 1998 American diplomats explored a range of options for a Khmer Rouge trial. Whilst Pol Pot was alive these efforts focussed primarily on him as an individual, but the project of Khmer Rouge accountability nonetheless remained alive after his death in 1998. American efforts focussed on finding a basis for prosecution in the U.S., finding another country willing either to take temporary custody of suspects or to put them on trial, or creating a special chamber within the ICTY to deal with Cambodia.98 For the Cambodian government, it was better that it be involved in any trial that took place than to have the process take place without its influence. Years were spent negotiating with the UN on the model of the ECCC to ensure, from the government’s perspective, that it had enough control. The government had to be involved in the negotiations in order to make such demands. In part at least, the government’s pursuit of a trial for the Khmer Rouge was to ensure it remained part of the conversation.
The other possibility, which would have ensured maximum control for the government, was a domestic trial. As I discussed above, international involvement was deemed
97 Chea Vannak, "Tourist Numbers at the Killing Fields Keep Rising," Khmer Times, 24 May 2015. 98 Scheffer, All the Missing Souls, 347-57. 234 necessary to secure legitimacy. Aside from this aspect, the involvement of the UN in the process allowed the Cambodian government to entangle the UN in the outcome. They were now jointly responsible for the success or failure of the court. When Human Rights Watch accused the government of interfering to prevent the arrest of Case 003 and 004 suspects in 2015, Deputy Prime Minister Sok An hit back saying that whereas Human Rights Watch often criticised the government “now they criticise the United Nations as well”.99
This responsibility for success or failure also applied to the negotiation period. There were clear moments of reluctance from the Cambodian government and the UN Secretariat about a tribunal in general and the specific model of the ECCC. The negotiation process was replete with delays and backtracking and was marked by an attempted withdrawal by the UN Secretariat. Both parties became trapped in a process neither particularly wanted and reached an outcome neither would have chosen to pursue. The model of the ECCC was far from what either side had envisaged at the outset. Nonetheless, both the government and the UN Secretariat became ensnared in a series of compromises that led gradually but inexorably to the ECCC. Hans Corell, chief UN negotiator for the ECCC, said years later, “I am sure that, today, even people without courtroom experience realize that the solution chosen for the ECCC should not be used as a model for any future effort of this nature”.100 Neither the UN Secretariat nor the Cambodian government were enthused about the compromise model of the ECCC. Once it had been established, however, it was in the best interest for both parties to make a success of the ECCC, even if they operated with different ideas of what success would look like.
Challenges to Power Since beginning to explore the idea of international involvement in a trial, Hun Sen harboured suspicions about the intentions of the international actors involved in the process, particularly the active engagement of the United States government. His most direct fear about a trial was that CPP leaders or their associates would be put on trial or tainted by association. This fear was in part a result of old suspicions and grudges built during the 1980s when Cambodia, and many of its current leaders, was isolated from all but the Soviet bloc. However, it also had a more concrete and recent basis. In late 1998, just before the UN Group of Experts visited Cambodia, there were draft resolutions before both the U.S. House of Representatives and the Senate – and in the case of the
99 Taing Vida, "Gov't 'Not Meddling at KRT'," Phnom Penh Post, 27 March 2015. 100 Quoted in John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor: University of Michigan Press, 2014), 10. 235
House the resolution was passed – which discussed the culpability of Hun Sen for violations of international law and recommended that he be put on trial.101 Crimes committed after 1979 did not form part of the ECCC’s mandate but these resolutions offered a suggestion of the type of trial that at least some organs of the U.S. government would have liked to see.
The challenges to the government’s power, when they did come, were far less direct than putting current leaders on trial. The ECCC has presented contests to the government’s existing narrative of the Khmer Rouge regime, some at a small and relatively inconsequential level, and other more important ones that the government has fought against. For example, the government has rhetorically claimed the Khmer Rouge regime was responsible for the deaths of three million Cambodians. This figure appears in documents from 1979 up to the current day when it is included in Hun Sen’s preface to an official ECCC informational booklet.102 However, in its August 2014 judgement the Trial Chamber cited multiple academic sources as well as its own Demographic Expert Report to conclude a figure between 1.5 and 2 million deaths was most likely.103 Such details, although contradicting the government, are unlikely to be noticed by the general public in a judgement of almost a thousand pages in the Khmer language. More important to the government is that the trial does not disrupt the larger themes of the narrative: that only the very top leaders of the Khmer Rouge were responsible and that the current government are saviours.
The concerns that associates of the CPP would be suspects at the court, or that CPP members would be tainted by association, were somewhat manifested at the ECCC. Over time, the government has sought to protect, and not to protect, different individuals. For example, over the course of the negotiations and establishment of the ECCC, Ieng Sary went from being officially amnestied and unofficially protected to being an acceptable target for prosecution. However, the conduct of the government towards Cases 003 and 004 demonstrates that it would prefer to protect some suspects who are being pursued
101 "CPP Offers Blistering Defense Against US Senate Proposal," Cambodia Daily, 28 October 1998; Jeff Smith, "US House Calls PM Criminal," Cambodia Daily, 12 October 1998. 102 "Press Conference of Keo Chanda, Minister of Information, Press, and Culture, Chair of Legal Affairs Committee, July 28, 1979," in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard De Nike, John Quigley, and Kenneth Robinson (Philadelphia: University of Pennsylvania Press, 2000), 47; Hun Sen, "Preface," in An Introduction to the Khmer Rouge Trials, 5th Edition (Public Affairs Section, Extraordinary Chambers in the Courts of Cambodia: 2012), 3. This edition of the ECCC information booklet is the most recent one as of the time of writing in late 2016. 103 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Case 002/01 Judgement," Case File 002/19-09-2007/ECCC/TC, E313, 7 August 2014, 99. 236 by the international side of the court. So far, the way the court was designed means that the government has been able to slow progress on these cases, and to make it clear that it considers a trial of these suspects to be unacceptable. Nonetheless it has had to tolerate an extended investigative process, the public naming and charging of the suspects, and international criticism for impeding the progress of these cases. The International Co-Investigating Judge also sought to interview six government members in relation to their time as Khmer Rouge members. These government members have either ignored the summonses or announced their intention not to comply, but the existence of the summonses was nonetheless public. These events have featured heavily in the English language reporting on the ECCC and in NGO reports, but they do not seem to have entered Cambodian popular consciousness about the court. The government has strong control over Khmer language media in the country and, as I noted in Chapter Four, the outreach work of the court focuses on positive developments and not contentious issues. So although these challenges to the government’s narrative exist they have drawn minimal attention from a domestic audience, which the government targets with its narrative.
Virtual Trials As well as being cheaper, hybrid in-country trials allow a more immediate confrontation of that country’s government. The purposes of transitional justice, at least for international advocates, are explicitly about making broader improvements to democracy, rights, and the rule of law as part of the liberal democratic project. The Cambodian government has not been interested in allowing these changes. In areas which would pose a threat to its power and longevity it has actively tried to prevent the ECCC from having an impact. For some supposed impacts, such as the development of democracy, the ECCC is just one small component in a longer-term process. Other impacts are to be achieved through more confrontational means. For example, the idea that tribunals such as the ECCC are model courts which can help to improve the rule of law in their host country posits the empowerment of citizens and the judiciary to demand the right to an improved and fairer system from their government.
Beyond the evident prosecution of defendants, there are tandem processes operating at transitional justice mechanisms such as the ECCC. These additional aspects have been dubbed by Victor Peskin “virtual trials” and discussed in the context of the ECCC by Duncan McCargo.104 In Peskin’s account the “political interactions between tribunal,
104 Peskin, International Justice in Rwanda and the Balkans; Duncan McCargo, "Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribunal," International Affairs 87, no. 3 (2011): 613- 27. 237 state, and international community are virtual trials of their own that determine a state’s response to tribunal demands for cooperation”.105 He argues that “[m]uch of the state- tribunal relationship is indeed adversarial and trial-like” and that in these virtual trials “powerful international players – such as the European Union, the United States, and the Security Council – sit in unofficial but influential judgement of states”.106 Specifically in the Cambodian case, McCargo argues that “parallel political ‘trials’ which place both the Hun Sen regime and the UN in the virtual dock are now assuming greater importance than the formal trials themselves”.107 Although the virtual trials being conducted around the ECCC relate more often to testing the Cambodian government’s adherence to the rule of law, it has also been a chance for Hun Sen and his government to judge the commitment of the UN and donor countries to overcoming their record of past support for the Khmer Rouge.
During the negotiations that led to the creation of the ECCC each significant road block was another stage of the same trial. Each side tested different aspects of its opponent’s position. The UN considered the disputed issues to be a test of the government’s willingness to commit—or at least be seen to be committing—to international standards in the rule of law and judicial sectors specifically but also to human rights and democracy more broadly. The Cambodian government tested the commitment of the UN and member states to repair the legacy of international support for the Khmer Rouge. Additionally, and on a less principled note, the Cambodian government tested the limits of the UN Secretariat’s willingness to compromise, and explored ways in which other member states could be used to help Cambodia circumvent the more persistent obstacles.
The bifurcated structure of the ECCC has set up continuous confrontation between the international and domestic sides of the court since its establishment. Any issue not laid out directly and in detail by the agreement between the UN and the Cambodian government was a possible site of contestation between the national and international staff at the court, such as the role and organisation of defence lawyers. Once the court was operating the UN Secretariat was drawn into attempting to resolve the issue of corruption, another of the virtual trials concerning the ECCC. The discussions between the Cambodian government and the UN Secretariat over establishing an anti-corruption mechanism closely mimicked the negotiations that established the ECCC. Extended
105 Peskin, International Justice in Rwanda and the Balkans, 9. 106 Ibid., 12, 10. 107 McCargo, "Politics by Other Means?," 627. 238 government recalcitrance won out over the UN desire for a more comprehensive and independent process. Ultimately the anti-corruption mechanism was a domestic body with minimal international oversight.
Within the court, disputes have primarily emerged around Cases 003 and 004. Other issues have seen some international judges dissent from decisions on the basis of the role of civil parties, judicial bias, and international sentencing guidelines, but these dissents have had only minor impact.108 It is the additional prosecutions that have been the most evident schism. The disputes over Cases 003 and 004 have played out not just at the court but also in the arena of the government and the UN. The cases have been in dispute since 2008, and have been the subject of both private meetings and public statements between government officials and UN representatives. Although statements from the UN always refer to the need for the court to reach a decision on these cases independently, and government statements sometimes acknowledge this principle, the discussions make clear that a political compromise is being sought on a fundamentally political issue.
Donors have also made these cases an issue that exists outside law and procedure, with some donors reportedly wanting to funnel their donations only to the completion of Case 002 and not to the investigation of Cases 003 and 004.109 At the time of writing it seems highly unlikely that these cases will proceed to trial. This outcome would satisfy the government in its opposition to continuing these cases, but the cases must also be seen to be dropped in a legal manner, so that the UN is not seen as losing this particular virtual trial and the Cambodian government can continue to benefit from increased legitimacy. This outcome could be achieved by the International Co-Investigating Judge deciding there is not sufficient evidence to send the case to trial, or through the creation of a process under which those cases could be transferred to the national court system.
Although international involvement has brought confrontation, international legitimacy is nonetheless a significant motivation for the government’s pursuit of a tribunal. This legitimacy is conferred (in their own eyes) by countries that comprise the international
108 Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Decision on Civil Party Co-Lawyers’ Joint Request for a ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Sirections Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character," Case File 001/18-07-2007/ECCC/TC, E72/3, 9 October 2009; Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Reasons for Decision on Applications for Disqualification," Case File 002/19-09-2007-ECCC/TC, E314/12/1, 30 January 2015; Trial Chamber, Extraordinary Chambers in the Courts of Cambodia, "Separate and Dissenting Opinion of Judge Jean-Marc Lavergne on Sentence," Case File 002/19-09-2007- ECCC/TC, E188.1, 26 July 2010. 109 Ciorciari and Heindel, Hybrid Justice, 101. 239 community, who are in some ways the judges in these virtual trials. The largest foreign donors to the ECCC are Japan, the United States, Australia, Germany, and the United Kingdom.110 Donor countries have been put in the position of having to choose between siding with either the government or the UN in these virtual trials. Their patterns of behaviour during the court’s operation have been similar to those adopted during the negotiation period: they have advocated a compromise closer to the government’s position and have encouraged the UN to resolve the issue quickly. This stance was evident in the issue of corruption where donors sought ways to circumvent the UN Secretariat (which was dissatisfied with the government’s limited anti-corruption measures) in order to fund the national side of the court directly. Since international donors are normally willing to acquiesce in the Cambodian government’s position, the UN must often seek a face-saving position, where real reforms are not achievable, in order to maintain the appearance that it only takes principled positions.
The Cambodian government has also been aware that its increasingly strong relationship with China can cushion any consequences of damage to its liberal democratic credentials which could occur because of confrontations over the ECCC. Chinese officials have repeatedly stated deference to Cambodia’s sovereignty on the trial issue. The Chinese government’s position during the creation of the ECCC was somewhere between reluctance and outright opposition. Since the establishment of the court, the Chinese government’s approach has largely been one of detachment, perhaps reassured by the structure and jurisdiction of the court, and the Cambodian government’s clear control. The relationship between Cambodia and China has strengthened since the end of the Khmer Rouge movement and Cambodia receives significant quantities of Chinese aid and development projects. China granted concessional loans of US$2.85 billion from 1992 to 2014, with direct investment reaching US$10 billion as of 2012.111 This aid is sometimes portrayed as unconditional but it is better described as having conditions unrelated to the human rights concerns associated with American or European aid.112 Chinese influence was evident in other spheres, such as during a July 2012 ASEAN summit hosted in Phnom Penh. For the first time in ASEAN’s history the summit failed to agree on a foreign ministers’ joint communiqué at the conclusion of the event. The issue in dispute
110 Extraordinary Chambers in the Courts of Cambodia, "ECCC Financial Outlook as of 31 March 2016," https://eccc.gov.kh/en/about-eccc/finances/summary-expenditure-and-donor- contributions-31-march-2016 2016. 111 Vann Vichar, "China Pledges Multimillion-Dollar Development Aid to Cambodia," Radio Free Asia, 10 November 2014; Laignee Barron and Vong Sokheng, "For China, a Friend in Need " Phnom Penh Post, 12 November 2014. 112 Kheang Un, "The Khmer Rouge Tribunal: A Politically Compromised Search for Justice," Journal of Asian Studies 72, no. 4 (2013): 786. 240 was the South China Sea and the communiqué could not be issued when Cambodia, as the chair, refused to agree to the inclusion of language proposed by the Philippines and Vietnam which included a reference to Chinese encroachment.113 Cambodia was criticised for refusing to negotiate at all and attempting to shut down any discussion of the South China Sea but Cambodian officials blamed the other parties for attempting to hijack the ASEAN event with bilateral issues.114
In July 2016 a U.S. Senate committee sought to suspend some aid funding to Cambodia until the Secretary of State determined that the Cambodian government “has ceased violence and harassment against civil society in Cambodia, including the political opposition”.115 The same draft also sought to tie any future American funding for the ECCC to the court moving forward with Case 003. The same day, and days after Cambodia sided with China in rejecting an international arbitration ruling over the South China Sea, Hun Sen announced a Chinese aid package worth $530 million over three years.116 That the major international provider of funding for the Cambodian government is largely indifferent to the ECCC (as long as it stays away from the Chinese role in supporting the Khmer Rouge) provides the government with a financial safety net.
The virtual trial of Hun Sen and his government is part of how improvements in democracy or rule of law were expected to be achieved by the ECCC. This expectation, however, does not seem to have been fulfilled. There are clear examples, particularly around corruption and judicial interference, where the government has failed to live up to international standards. However, in each case the government has not been sufficiently challenged for change to occur: the ECCC continues to be regarded as a legitimate institution and yet has not strayed from what the government considers to be acceptable bounds. McCargo has argued that the ECCC “looks set to become the first such tribunal over which authoritarian practices and values gain a decisive upper hand” and that accordingly it will impact Cambodian politics, “but by consolidating rather than undermining illiberalism”.117
113 Puy Kea, "S. China Sea Row Forces ASEAN to Forego Communique for 1st Time in 45 Years," Kyodo News, 12 July 2012. 114 David Boyle, "Government Fires Back on South China Sea," Phnom Penh Post, 31 July 2012. 115 Erin Handley, "US Draft Bill Ties Aid to Crisis, Demands End to 'Violence and Harassment'," Phnom Penh Post, 4 July 2016. 116 Ananth Baliga, "US Criticism, Chinese Cash Arrive Just a Few Hours Apart," Phnom Penh Post, 18 July 2016. 117 McCargo, "Politics by Other Means?," 627, 17. 241
These virtual trials are relevant to the international legitimacy that is afforded to the court and through it to the government. Domestically, however, they are of limited relevance. The ECCC has rarely been an explicit site of domestic political competition. It had more political relevance during the establishment process than during the operation, but even then it was of minimal importance. Opposition leader Sam Rainsy advocated for a wholly international tribunal and criticised the agreement with the UN as a “classic Cambodian charade”.118 These comments often seemed designed for an international audience, rather than domestic politics. The operation of the ECCC has had decreasing political relevance in the domestic sphere. Duch’s conviction, and particularly the appeal decision to sentence him to life in prison, was well received and of broad public interest. The ruling party was able to hail it as a triumph of their long-held opposition to the Khmer Rouge. However, as I discussed in Chapter Four, interest in the court’s outcomes has declined significantly. This decline has limited the court’s political potency.
The ECCC is of greater interest to those who lived during the Khmer Rouge regime, but the younger generation make up an increasingly large percentage of the population: more than a third of registered voters in the last national elections were born after the fall of the Khmer Rouge.119 Surveys indicate that there is broad support for justice and for the court but that it is not a significant priority for most Cambodians. When asked what the government’s priorities should be, less than 2% of those surveyed listed justice; the economy and infrastructure were far more common priorities in the responses.120 An increasing percentage (76% in 2008 and 83% in 2010) thought that dealing with the problems of the daily lives of Cambodians was more important than addressing the crimes of the Khmer Rouge regime.121 In 2010, 63% of respondents said they would rather spend the money on something other than the ECCC, with those who did not live under the Khmer Rouge showing an even more marked preference.122
118 "Opposition Leader Speaks Out Against Khmer Rouge Trial Plan," Agence France-Presse, 7 March 2001; Gina Chon, "Opposition Party Pushes Own KR Law," Cambodia Daily, 9 February 2000. 119 Khoun Theara, "Youth Showing More Political Engagement as Election Approaches," VOA Khmer, 10 July 2013. 120 Phuong Pham et al., "So We Will Never Forget: A Population-Based Survey on Attitudes About Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia," (Human Rights Center, University of California, Berkeley, 2009), 34. 121 Phuong Pham et al., "After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia," (Human Rights Center, University of California, Berkeley, 2011), 19. 122 Ibid., 20. 242
As these surveys suggest, the ECCC is not a prominent or particularly helpful political tool for the CPP in a direct sense. Instead, the CPP’s domestic political platform rests on stability, infrastructure development, and economic growth. Although the ECCC rarely receives explicit mention in domestic politics, it can nonetheless have domestic political benefits. As I discussed earlier in this chapter, it plays a role in shaping the narrative of the Khmer Rouge period and symbolising a final defeat of the Khmer Rouge which in turn contribute to the CPP’s narrative as the party that brought stability to Cambodia and the only party which stands in the way of another Khmer Rouge type of regime.
Conclusions
Transitional justice literature often excludes what it does not understand: truth commissions with little interest in truth or an environment where they cannot disseminate their finding, and trials designed more to target political enemies than to adhere to standards of due process. These mechanisms can be dismissed. But the ECCC does not quite fall into this category. The participation of the UN means that it must be afforded some regard and legitimacy.
Yet, as I argued in the previous chapter, the ECCC does not fulfil the liberal democratic expectations contained in transitional justice literature or advocacy. So in this chapter I examined why the Cambodian government created the ECCC, how the government has benefitted from the court, and what the associated risks were to the government’s domestic and international standing. The government wanted the Khmer Rouge regime to continue as a topic of public discourse but only in the right way. It was advantageous to prolong the political relevance of the issue but there was a risk that the court would threaten the narrative on which the CPP had built its political power. In the international sphere, the government sought legitimacy without scrutiny. Ideally, international participation and endorsement would have been forthcoming with minimal attention or judgment of the process. More realistically, the government wanted to garner international legitimacy whilst adhering to as few standards as possible. It wanted credit for the tribunal whilst ignoring or obstructing any broader ramifications for liberal democracy. There were limits to the cost the government was willing to pay for the potential benefits of a tribunal; domestic political power could not be jeopardised.
It is this balancing of liberal democratic appearance yet government influence over the ECCC which places it in the category of illiberal transitional justice. The ECCC is neither a wholly legitimate nor illegitimate process; it is not liberal democratic but the 243 government is aware of the need to be seen to be so. The Cambodian government was able to create a mechanism that occupied this middle ground because of the unusual context in which the ECCC was created. Cambodia was not a country in the immediate post-conflict period and so the government had a stronger position than other countries have had in negotiating with the UN, even that they could necessitate such negotiations taking place. Since it had some control over how the ECCC was designed the government was able to create a mechanism that allowed it to straddle two somewhat contradictory goals: the pursuit of international legitimacy which necessitates the appearance of adherence to procedural standards, and yet domestic political benefits which required government control of the outcomes the court was allowed to reach. The case of the ECCC thus allows a conceptualisation of poorly defined aspects of transitional justice outside of the liberal democratic norm.
245
Conclusion
My thesis has aimed to demonstrate the incongruities between the analyses of transitional justice and the realities of Extraordinary Chambers in the Courts of Cambodia and to present a new way of conceptualising transitional justice mechanisms. Indeed, the ECCC did much to trample on the expectations of the transitional justice literature. This literature was born in a context in which liberal democracy seemed the natural outcome of the end of an authoritarian regime and it continues to carry these assumptions with it. In Cambodia, more than four decades have elapsed since the Khmer Rouge came to power. In that time, however, the transition has been slow and staggered, and not always in the direction of liberal democracy. The creation of the ECCC rested far more upon political motivation than the transitional justice literature prefers to acknowledge. During its operation the expectations of procedural justice were overridden when they clashed with political objectives. Perhaps unsurprisingly, since the ECCC fulfilled few of the transitional justice expectations in its creation and operation, there is also minimal evidence that the court is achieving the expected outcomes of transitional justice mechanisms. Instead, it is being used by the Cambodian government to pursue domestic political goals and international legitimacy. This pursuit of international legitimacy means that the ECCC maintains its position within the transitional justice canon because the Cambodian government and the national judges at the court retain the language of procedure. However, I argue that the combination of this procedural language with political interference renders the ECCC an example of illiberal transitional justice.
Although it is the first to be labelled as such, the ECCC is not the first transitional justice mechanism employed to address the Khmer Rouge period. The 1979 People’s Revolutionary Tribunal (PRT) found Pol Pot and Ieng Sary guilty of genocide and sentenced them to death in absentia. The 1983 Renakse petitions solicited the testimony of Cambodians nationwide about the harms they had suffered, and worked to estimate the death toll of the Khmer Rouge period. Both mechanisms were explicitly aimed at engaging an international audience and discouraging continued international recognition of the Khmer Rouge but neither had any success. Although they did not achieve the government’s internationally oriented goals, the trial and petitions were part of a broader domestic program whereby the narratives about, and policies towards, the 246
Khmer Rouge were developed in the 1980s. Since the leadership of Cambodia has remained similar for more than three decades, the concerns that drove these narratives and policies have also persisted. Cambodia was allowed to re-enter the periphery of the international community by way of a massive UN mission which informed how the Cambodian government approached negotiations for a Khmer Rouge tribunal a few years later. At the time of the UN mission justice concerns were subsumed within the perceived necessity of including the Khmer Rouge in the peace process. As other parts of the peace agreement proved impossible to implement the UN chose to focus its efforts on the election. It made sure that the proper procedures of the election period were observed but was able to do little to change the underlying power structures and consequently was unable to fully implement the election results. Correct processes had been observed, legitimacy had been bestowed, and Cambodia’s ruling party had been obliged to do little to compromise its power.
Four years later, the Cambodian government initiated a dialogue with the UN Secretariat about a Khmer Rouge tribunal. The government used a strategy similar to that which it had employed in the 1993 elections and aimed to secure the greatest possible international legitimacy with the least risk to domestic power. The UN Secretariat and the Cambodian government arrived at the negotiating table with very different conceptions of what a tribunal would look like. The Cambodian government wanted a domestic process with the assistance of international legal experts whereas the UN’s Group of Experts had recommended an international tribunal located outside Cambodia with no role for the Cambodian judiciary. Arriving at an agreement took six years from when the request for assistance was sent. These disputes considered questions of the fundamental nature of a tribunal (domestic, international, or somewhere in between) and were often framed in principled stances on state sovereignty or international standards of fair trial rights. The major source of conflict was over power: who would exercise the most control at the court, whose turn it was to send the next communication, who was obstructing the process more. Nonetheless, despite conflict, and with the frequent intervention of foreign governments, an agreement was reached.
The hybrid structure of the ECCC was novel at the time and is unlikely to be repeated. The features of the negotiation period hinted at the way the court would run: it embodied a competition for control which created a finely honed system of procedures designed to ensure neither the Cambodian nor international personnel at the court had domination over decision-making. The tenor of the creation of the ECCC was unusual but nonetheless fit within the wide bounds of transitional justice during the 247 establishment phase; there is considerable latitude to consider victims’ interests, national stability, and the country’s political transition. However, the creation of the ECCC pushed those limits by having self-interested power-maintaining politics at its root. The structure of the ECCC had not overtly institutionalised executive control or assumptions of guilt and so moved forward as an accepted transitional justice mechanism.
Judges were sworn in at the royal palace in Phnom Penh in 2006 and since then the court has produced thousands of documents and held hundreds of trial days. There have been a range of decisions made at the court which were politically consequential and impacted on the power of the Cambodian government, either by reinforcing it or threatening it. There were also decisions made at or about the ECCC that were impacted by international political concerns as is common across transitional justice mechanisms. There is an acceptance within transitional justice practice and literature, driven by practicalities, that powerful foreign governments will not have their actions examined but will be able to influence transitional justice mechanisms either directly or through their role at the UN, when it is involved. This reality does not mean that international interventions in transitional justice should necessarily be regarded more favourably than domestic ones but only that they are better regarded within transitional justice literature and so in this regard the ECCC fits more easily within the transitional justice canon.
It is in the operation of the ECCC, and its domestic political implications, that a clearer distinction between the ECCC and other transitional justice mechanisms emerges. Rules were not absolute at the ECCC. Perhaps they never are in any institution, but in transitional justice rules and procedures are taken to be important and to have pre- eminence over political considerations. At the ECCC, however, rules and procedures were discarded or ignored, particularly by the government, when they were inconvenient. However, what was not discarded was the language of procedure which the Cambodian government and the national judges at the ECCC continued to use to justify their decisions. Thus, government opposition to cases it found threatening, or to a judge whom it thought would pursue these cases with too much public vigour, were couched in the acceptable rhetoric of rules and procedures. Their interpretation of the procedures was significantly different from that of the international judges and the UN.
Transitional justice scholarship and advocacy assume that significant outcomes stem from transitional justice generally and from adherence to proper procedure. Many of these goals are challenging and aspirational for a transitional justice mechanism in any context. They were further removed from plausibility in the case of the ECCC. Some 248 goals of transitional justice such as the promotion of democracy are not clearly linked causally to the use of a transitional justice mechanism. Other goals, however, such as ending a culture of impunity or strengthening the rule of law, are more closely linked to the operation of transitional justice. However, in Cambodia the government had no intention of allowing increased legal accountability or a stronger judiciary because to do so would diminish its hold on domestic power. It was unlikely, too, that the ECCC would have a significant impact on Cambodia’s domestic judiciary. In part, the idea that judicial training or the role of the ECCC as a model court would effect change did not address the problems of corruption and government interference that were, and remain, most crippling to the Cambodian judiciary. This situation is compounded by the government’s demonstration, particularly in Cases 003 and 004, that it can influence the processes of the ECCC and can thereby perpetuate impunity. The outcomes of the ECCC in terms of justice, truth, or reconciliation are mixed. Some elements of the design of the ECCC aided the pursuit of justice and truth whilst others hindered it, but there is no evidence that the government’s decisions made during the ECCC’s creation bore these goals in mind.
Since there is no evidence that the ECCC was created to pursue the expected goals of transitional justice, there need to be new understandings of why the ECCC was created and what political outcomes it was designed to pursue. Other transitional justice mechanisms provide instructive examples. Transitional justice has been employed by repressive regimes in order to secure greater international legitimacy. A tribunal in Bangladesh is being used to prosecute domestic political opponents, and in Rwanda the government was able to use its growing strength to influence the conduct of the International Criminal Tribunal for Rwanda. In Cambodia, the pursuit of international legitimacy was the most important objective for the government in creating the ECCC. If a domestic process had been created it could have been used more easily to work towards the domestic goals of shaping the narrative of the Khmer Rouge regime and prolonging its political relevance. Although international involvement brought greater risks, the goal of obtaining international legitimacy took greatest precedence, and in turn gave the weight of international endorsement to the domestic narrative. There were, nonetheless, limitations on how far the Cambodian government would go in pursuit of international legitimacy; there were lines that could not be crossed. These lines primarily related to domestic political power and anything that the government perceived as a threat to it. In drawing these lines the government rejected most of the outcomes that 249 transitional justice scholarship considers to be aspirational, such as strengthening the rule of law and creating a culture of accountability.
Throughout this thesis I have demonstrated and explored the contradictions between the practices of the ECCC and the expectations of transitional justice scholarship. There are commonalities—in Cambodia a judicial mechanism adjudicated criminal responsibility for mass atrocity crimes as prescribed in the transitional justice literature—but many of the broader expectations and implications of transitional justice have not been present in Cambodia. Accordingly, I argue that transitional justice mechanisms should be classified along a spectrum. At one end lies liberal transitional justice, which is the focus of the vast bulk of transitional justice scholarship. Liberal transitional justice is often assumed to be the only type of transitional justice. It contains a variety of normative assumptions but little justification for the applicability of these assumptions, particularly given the wide variety of mechanisms that are encompassed by definitions of transitional justice. At the other end of the spectrum is transitional justice employed by repressive regimes. The existence of these transitional justice mechanisms is rarely acknowledged, or at least not acknowledged as falling within the realm of transitional justice. They are not pursued in the context of democracy or a democratising process and they are either not conducted in an independent manner or, if they are, the outcomes are suppressed. They adhere to few, if any, of the normative expectations of liberal transitional justice and yet take on many of the same institutional forms such as trials or truth commissions.
Between these two extremes, I argue in this thesis that a concept of illiberal transitional justice is necessary to understand the variety of cases that fall under the label transitional justice. Drawing on ideas of illiberal democracy, this category encompasses transitional justice mechanisms which on the surface level resemble liberal transitional justice but which embody none of the underlying values or expectations. Illiberal transitional justice mechanisms contain elements of legitimacy and illegitimacy in the eyes of transitional justice scholars and foreign governments. For example, at the ECCC the legitimacy of the institution was maintained by the presence of the UN but the way that the government interacted with the ECCC drew significant criticism from human rights organisations, and slightly more veiled criticism from the UN Secretariat and foreign governments. The importance of procedure is a key distinction between liberal and illiberal transitional justice. In liberal transitional justice, a legalist disposition is key, with the law and the mechanism’s procedures sitting above and unsullied by political concerns. In illiberal transitional justice, procedure will sometimes be followed. 250
However, if following procedure impinges on political concerns then politics will win out. The language of procedure nonetheless remains present so that illiberal cases of transitional justice can remain considered within the transitional justice canon rather than being dismissed, as are mechanisms employed by repressive regimes. There is no clear demarcation between liberal and illiberal transitional justice but the distinction is an acknowledgement that there is a grey area which requires different explanations.
In cases of illiberal transitional justice, it is unhelpful to assume that transitional justice is being employed in the pursuit of liberal democracy or the general betterment of society because to do so obscures other reasons to pursue transitional justice. The other purposes of transitional justice, particularly in illiberal cases, include increasing international legitimacy, attacking political enemies, building domestic popularity, constructing a preferred narrative of the mass atrocity period, or exacting revenge. That is not to say that these goals cannot also be present in liberal cases of transitional justice but that they take on pre-eminence in illiberal transitional justice. Adopting the idea of illiberal transitional justice allows for more nuanced understandings of different types of transitional justice.
This thesis is only a preliminary exploration of illiberal transitional justice, a provocation. Most evidently, the bulk of my analysis applies to Cambodia and the ECCC. Although I argue that the ECCC is archetypal of illiberal transitional justice, the specifics of other cases in the illiberal section of the spectrum will have their own peculiarities and offer new insights for the phenomenon as a whole. The ECCC is a very specific mechanism: an ad hoc institution, a trial system, created by a government with international participation. There is a range of other types of transitional justice mechanism which would have different illiberal features. What would an illiberal truth commission look like? What if the judiciary in an illiberal democratic country decided to pursue transitional justice through the normal court system? Is the nature of the transitional justice mechanism necessarily linked to the quality of democracy in that country? Is the balance of national and international essential? It may not be manifest as directly in a hybrid structure as the ECCC but one feature of illiberal transitional justice is this tension between the liberal appearances and illiberal undercurrents. Are there other ways this tension could be present other than in a dispute between the national and international sides of a mechanism?
The concept of illiberal transitional justice has implications for understanding how mechanisms are created, how they operate, and what outcomes they will achieve. In the creation phase it requires thinking differently about the reasons states do transitional 251 justice, recognising the aspects unrelated to liberal democracy, and considering how these reasons impact on the types of mechanisms that are created. In the operation of mechanisms the realities of illiberal transitional justice impact the fundamental ideas about how these mechanisms operate and emphasises the importance of understanding the local context of the country rather than assuming the processes, often imposed from outside, will be dominant. The outcomes of transitional justice more broadly conceived are then, potentially, markedly different from those espoused by liberal transitional justice advocates and scholarship. There are varied reasons why governments pursue transitional justice, in their own country or in another. Whether these goals are plausible or not is then influenced by both the institutional design and its operation. A clearer analysis of these facets of transitional justice, particularly in the illiberal context, allows a more realistic picture of how transitional justice works and what expectations can be placed upon it.
Finally, I want to briefly examine how theories related to liberal transitional justice could be adapted for the illiberal context. Another of the defining, and unusual, aspects of the ECCC is the long delay between the trials and the crimes they are prosecuting. The race (sometimes lost) to convict defendants before they die demonstrates that the ECCC is operating at the time limit for a prosecutorial mechanism.
Recent scholarship has emerged from South America concerning post-transitional justice, which I discussed in Chapter One. These works address cases of transitional justice which occur in the decades after the transition. In the South American cases these mechanisms are described as perfecting the quality of democracy and questioning the transitional compromises.1042 The emphasis on democracy indicates that these theories are, at most, only applicable to cases of liberal transitional justice. Nonetheless the ideas can be amended and expanded to cases of illiberal transitional justice. Removing the explicitly democratic focus, post-transitional justice considers aspects of the transition that were not sufficiently addressed at the time and are now being dealt with through a new round of transitional justice.
The current stage of transition in Cambodia is unclear, partially because the concept of transition is left poorly defined by scholars and because what ideas of transition do exist are based on liberal democratic transitions. Choosing a particular moment to mark the transition in Cambodia would only serve to oversimplify and obscure the processes at play rather than contributing greater understanding. However in the existing literature,
1042 Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (University Park, Pennsylvania: Pennsylvania State University Press, 2010), 22. 252 without a clear transition towards liberal democracy and with an ongoing transitional justice mechanism, Cambodia could be considered to still be in transition. Alternatively, since a trial was held in 1979 and a truth commission style process in 1983, the ECCC can be considered to be a post-transitional justice mechanism. If so, the idea of questioning transitional compromises could apply. Ieng Sary was officially pardoned and amnestied and other Khmer Rouge leaders, except Ta Mok and Duch, enjoyed unofficial implicit amnesties. The ECCC began to rectify this impunity, although too late to secure verdicts against some suspects before their deaths.
More generally, the idea of post-transitional justice perfecting democracy can be considered in the illiberal case to reflect the post-transitional justice mechanism fulfilling an unmet goal of the original transitional justice mechanisms. This idea maintains the use of post-transitional justice to enhance the original transition but removes the assumptions about democracy. In Cambodia, the ECCC can fulfil two main elements for the government that earlier mechanisms could not. The first is enforcing punishments. The 1979 PRT sentenced Pol Pot and Ieng Sary to death for genocide but the trial was conducted in absentia and the authorities of the time had no means to detain and execute the convicted people. On the other hand, the suspects in Cases 001 and 002 at the ECCC were easily detained.1043 Although punishments before the ECCC are limited to periods of incarceration (Cambodia abolished capital punishment in 1989) there has been no doubt that sentences will be enforced. Secondly, the international recognition of the ECCC is essential to its purpose. As I discussed in Chapter Two, part of the function of the 1979 PRT and the 1983 Renakse petitions was to encourage other states not to recognise the Khmer Rouge and to bring legitimacy to the government in Phnom Penh. There is no evidence they had any such impact. Although there are no longer any disputes about the legitimate representatives of Cambodia on the world stage, the international involvement in the ECCC is nonetheless critical to the government. It could easily have prosecuted former Khmer Rouge leaders in the domestic system faster, more cheaply, and with more control. It could have achieved many of the same goals except for the international legitimacy. The risks of international involvement were tolerated for the sake of pursuing international legitimacy which previous transitional justice mechanisms had failed to procure. As, possibly, a post-transitional justice mechanism, the ECCC allowed the Cambodian government to enforce punishments and
1043 There have been problems with the police refusing to detain suspects in Cases 003 and 004 but these actions reflect the government’s wishes and so are not part of what the Cambodian government considers to be the unfinished business of the PRT. 253 increase international legitimacy, neither of which had been achieved by the first transitional justice mechanisms which were employed.
Victims of the Khmer Rouge have called the ECCC a “theatre of the absurd” and have dismissed it as “clearly not justice”.1044 Civil parties at the ECCC have said they are “deeply disappointed” and that they “have completely lost…confidence in the court”.1045 One asked, “Where can the victims find justice?”1046 Not all Cambodians share this intensity of feeling about the ECCC; most are uninterested. Trials in general, and those that comprise transitional justice in particular, revolve around process and performance. Yet it does not seem that much of this performance is meant for Cambodians, for the victims of the Khmer Rouge. Instead, it is a story crafted by the Cambodian government for the sake of the international community. It was never about the victims.
1044 Sophal Ear, "Cambodian 'Justice'," Wall Street Journal, 1 September 2009; Sok Ry Sum, "Justice Evades Cambodia's Khmer Rouge Trials," Radio Free Asia, 12 August 2014. 1045 Pech Sotheary, "KRT Civil Parties Say Reparations Benefit NGOs, Not Victims," Phnom Penh Post, 17 October 2014; May Titthara, "Aged Civil Parties Voice Concerns Over Speed," Phnom Penh Post, 26 March 2013. 1046 Titthara, "Aged Civil Parties," 26 March 2013.
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