Is the Trial of ‘Duch’ a Catalyst for Change in Cambodia’s Courts? KHEANG UN AND JUDY LEDGERWOOD AsiaPacificISSUES Analysis from the East-West Center SUMMARY At his trial under an international hybrid tribunal, the notori- No. 95 June 2010 ous member of the Khmer Rouge regime Kaing Guek Eav, known as “Duch,” The East-West Center promotes better rela- admitted to being responsible for the deaths of more than 12,000 people tions and understanding among the people and nations of the United States, Asia, and the between 1975 and 1979. This admission and expected conviction (the only Pacific through cooperative study, research, and dialogue. Established by the U.S. Congress real question left is the level of punishment) signify a symbolic victory for the in 1960, the Center serves as a resource for information and analysis on critical issues of Cambodian people. It is important for Cambodia’s healing that the people common concern, bringing people together to exchange views, build expertise, and develop know their history and believe that there can be justice. The coverage of policy options. The Center is an independent, public, nonprofit organization with funding from Duch’s trial and associated community outreach have engaged the public in the U.S. government, and additional support provided by private agencies, individuals, the process and have increased education about the country’s recent past. But foundations, corporations, and governments in the region. whether the hopes that the hybrid tribunal in which his trial was conducted Papers in the AsiaPacific Issues series feature topics of broad interest and significant impact may serve as a model for a more transparent system of justice—as opposed to relevant to current and emerging policy debates. The views expressed are those of the author the endemic system of patronage and corruption that is the norm for and not necessarily those of the Center. Cambodia’s judiciary and law enforcement—has yet to be seen. For these hopes to be realized, the educational outreach and the pursuit of judicial reform must continue. 2 Analysis from the East-West Center The trial of Kaing Guek Eav, known by his nom de implications in a Cambodian cultural, political, and guerre Duch, began in February 2009 under the Ex- legal context and these implications merit discussion. traordinary Chambers of the Courts of Cambodia First, the trial is important for understanding the (ECCC), a hybrid tribunal of Cambodian and inter- history of the DK period and for teaching this his- national jurists set up after years of protracted nego- tory to the Cambodian public as part of a reconcili- tiation between the United Nations (UN) and the ation process. Second, while many are optimistic that Cambodian government. Duch was charged with war these trials can produce a positive spillover into the crimes, murder, torture, and crimes against humanity. domestic Cambodian judiciary in terms of impar- He admitted over the course of the trial to being tiality, professionalism, and respect for the rule of law, responsible for the deaths of more than 12,000 peo- there remains ample reason to be skeptical about the ple at S-21, the torture and execution center he ran likelihood of such an outcome. during the reign of Democratic Kampuchea (DK)— Some observers and entities criticize the legal in- more commonly known as the Khmer Rouge regime adequacies of the tribunal and express the idea that —between 1975 and 1979. Testimony by Duch and it would be preferable not to have the trial than to other witnesses offered details of the operations of proceed with these limitations. Certainly there are S-21, a second prison S-24, and the execution site at flaws in the process (some inherent in the design of Choeung Ek. In the closing arguments of the trial, the proceedings), but the tribunal has nonetheless the French defense lawyer lauded Duch’s cooperation offered significant positive outcomes to date. The with the tribunal, highlighted his expressions of re- tribunal is important because it symbolizes the will morse, and asked for a lenient sentence. His Khmer of the international community to demand account- lawyer, however, unexpectedly argued that the tri- ability for genocide and crimes against humanity ac- bunal had no jurisdiction to prosecute Duch, and that cording to internationally accepted standards of due all charges should be dropped and he be released process. Even if it takes a generation, there must be immediately. On November 27, 2009, the closing accountability for violence with impunity. Such evi- The trial of day of his trial, Duch stood before the judges of the dence of long memory and dogged intent to secure Duch is the first ECCC and asked to be released. It was a stunning justice on the part of the international community step in bringing to conclusion to this long-awaited search for a measure might serve as a deterrent to those who would con- of accountability. template future crimes against humanity. Additionally, justice those most The trial of Duch is the first step in bringing to as noted in a report from the Asian International responsible for the justice the senior leaders and those most responsible Justice Initiative, the trial of Duch was “conducted crimes committed for the crimes committed under the Khmer Rouge in accordance with generally accepted standards of under the Khmer regime. In less than four years, 1.7 to 2 million peo- due process in international criminal tribunals”; that Rouge regime ple died, some 20 percent of the population. A sec- is, Duch is receiving the fair trial that the Khmer ond trial of Nuon Chea, Khieu Samphan, Ieng Sary, Rouge denied those tortured and executed under his and Ieng Thirith, the surviving members of the command.2 Central Committee of the Kampuchean Communist Party (CPK), is set to begin in mid-2011. Khmer Rouge History and Education of the While a verdict in Duch’s trial is not expected Cambodian Public until mid-2010, analyses of the benefits and weak- nesses of this first trial are already underway.1 Many of During the horrors of the Khmer Rouge regime, the discussions thus far have focused on legal issues, urban people were evacuated to the countryside, to such as the use of the concept of joint criminal enter- villages and worksites. Because of tight restrictions prise, Duch’s long pretrial detention, the functioning on movement and communications, people might of hybrid tribunals, and the importance of civil- have known of atrocities in their own locations, but party participation. The Cambodian tribunal has not of wider patterns. They knew the cycles of work, 3 Analysis from the East-West Center lack of food, illness, and violence of their own place, nongovernmental organization. DC-Cam has two but nothing about what was happening nationwide main objectives. The first is to record and preserve or at the top levels of the regime. the history of the Khmer Rouge regime for future Explanations for the mass violence and loss of life generations. The second is to compile and organize put forward during the subsequent People’s Republic information that can serve as potential evidence in a of Kampuchea (PRK) period (1979–1989), includ- legal accounting for the crimes of the Khmer Rouge. ing the People’s Revolutionary Tribunal in 1979 These objectives represent the promotion of memory that found Pol Pot and Ieng Sary guilty of genocide, and justice, both of which are critical foundations for focused on the Khmer Rouge ties to global geopoli- the rule of law and genuine national reconciliation tics and a personalization of the crimes of the period in Cambodia.5 to the “Pol Pot/Ieng Sary genocidal clique.” Dis- Indeed, the tribunal would have faced a daunting cussions of Democratic Kampuchea (DK) crimes task of collecting evidence without DC-Cam, which were framed within the context of a looming threat had already processed more than 155,000 pages of of the return to power of the Khmer Rouge and a documentation on the era currently being used by Khmer Rouge second genocide.3 The questions of how and why the the tribunal. Khmer Rouge killed so many of their fellow Cam- The Public Affairs Section of the Extraordinary atrocities were bodians were not adequately or objectively ad- Chambers of the Courts of Cambodia (ECCC) was excluded from dressed. The ruling coalition in the aftermath of the underfunded and understaffed from the outset, and textbooks, shielding 1993 UN-sponsored elections could not agree on much of the publicity for the tribunal was under- a whole generation how to describe the Khmer Rouge period, or the taken by nongovernmental organizations (NGOs), in- of Cambodians from subsequent Vietnamese invasion/liberation of cluding DC-Cam.6 The range of activities conducted learning about the Cambodia, and thus decided to exclude Khmer by these NGOs varies greatly, including running Rouge atrocities from school textbooks and ignore educational programs on the tribunal, organizing regime’s crimes any public appeals to bring the Khmer Rouge lead- groups to attend the proceedings, helping people file ers to justice. This political compromise shielded a the paperwork to join the tribunal as civil parties, whole generation of Cambodians from learning and publicizing the contents of the proceedings. about the Khmer Rouge crimes.4 Not only did the Research measuring the level of knowledge regard- school system fail to teach about the DK period, ing the ECCC shows progress over time. In surveys but also many parents were reluctant to talk with conducted by the Berkeley Human Rights Center in their children about their own experiences. Thus, September–October 2008, 39 percent of respondents many young people have no information, or inac- had no knowledge of the ECCC, and 46 percent said curate information, on the era.