(2007) 11 SYBIL 195–259 © 2007 Singapore Year Book of International Law and Contributors PUTTING CAMBODIA’S EXTRAORDINARY CHAMBERS INTO CONTEXT ∗ by SUZANNAH LINTON Things are moving swiftly in Cambodia these days, and this paper seeks to provide a timely and in-depth contextual analysis of the country’s foray into Khmer Rouge accountability. The author takes the view that the Extraordinary Chambers must not be viewed in isolation, but must be examined as part of a domestic system of adjudication that was forged in the aftermath of the Khmer Rouge, and Cambodia’s journey into socialism. The author takes issue, inter alia, with the many exuberant claims that the Extraordinary Chambers will be the vehicle to fix the multitude of wrongs in Cambodia, and that never before have the Khmer Rouge been subject to a process of accountability. Before engaging in close scrutiny of the Chambers, the substantial international law issues arising or likely to arise, as well as the procedural rules by which the criminal process is to be conducted, this paper examines the criminal proceedings brought against the top two Khmer Rouge leaders and the rank-and-file during the Vietnam- backed People’s Republic of Kampuchea, as well as three high-profile Khmer Rouge trials that took place in the 1990s and 2000/2001. This comprehensive study concludes with a realistic assessment of what Cambodians and the world can reasonably expect of these Chambers. I. INTRODUCTION Life is incomparably better in Cambodia today than under the Khmer Rouge.1 The economy is healthier than it has ever been2 and there is now a tribunal set up for the purpose of bringing the movement’s leaders to account for crimes committed between 1975-1979. But the reports on the state of human rights in Cambodia regularly confirm that Cambodians continue to endure serious and persistent violations of their basic rights.3 The challenges ∗ Associate Professor in the Department of Law, Director of the LL.M Programme in Human Rights, The University of Hong Kong. This article was first written when the author was a Visiting Fellow at the Lauterpacht Research Centre for International Law at the University of Cambridge and updated in June 2007. It was written before changes to Cambodia’s Criminal Procedure were introduced. Thanks to Youk Chhang for his constant support, Bora Touch who provided very helpful review and comments, and Terith Chy for his assistance with research. All references to Cambodian documents are to English translations and because there are rarely ‘official translations’ and inaccurate translations abound, I have attempted to state the translator’s identity where possible. 1 There has been academic dispute about the correctness of the term in describing a more complex phenomenon, and the linkage of Khmer Rouge with the Communist Party of Kampuchea. I use this term in a non-technical layman’s sense to mean the group of revolutionaries who governed Cambodia from 1975-1979 under the auspices of Democratic Kampuchea. 2 “Cambodia’s robust economic performance continued in 2006. Real GDP growth is estimated at about 10.5%, a third consecutive year of double-digit growth”, World Bank, East-Asia Update, April 2007. Also see World Bank, Cambodia Poverty Assessment Report 2006. 3 See State Department Country Reports on Human Rights Practices 2006 (Cambodia), 6 March 2007; Yash Ghai, Report of the Special Representative of the Secretary-General for human rights in Cambodia,UN HRC, 4th Sess., UN Doc.A/4/36, it was in 2007; 30 Jan (hereafter “SRSG Cambodia Report 2007 check document electronically”); Peter Leuprecht, Commission on Human Rights, Report of the Special Represen- tative of the Secretary-General for Human Rights in Cambodia, UN CHR, 61st Sess., Agenda Item 19, UN Doc.E/CN.4/2005/116 (2004) (hereafter “SRSG Cambodia Report 2004”); Human Rights Situation Report 2004, ADHOC, January 2005 (hereafter “ADHOC Human Rights Report 2004”); Conclusions and Recom- mendations of the Committee against Torture: Cambodia, 5 February 2004, CAT Report CAT/C/CR/31/7. The state of the judicial system is examined in more detail later in this paper. 196 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2007) facing this nation are ongoing and immense; they include extreme poverty and grossly imbalanced distribution of wealth, under-development and its associated problems, land- grabbing with forced evictions, political violence and harassment, serious environmental degradation arising from plundering of natural resources, entrenched corruption,4 child prostitution, human trafficking, a growing HIV-AIDs problem, authoritarian government and abuse of power with impunity. Added to this is the public’s understandable lack of faith in public institutions and political leaders, a situation that derives from the deeply ingrained practices of impunity. In fact, the last Special Representative of the UN Secretary-General to Cambodia, Peter Leuprecht, considered impunity for gross violations of human rights to be one of Cambodia’s greatest problems.5 However, unlike other countries such as Indonesia which faces a ‘where do we begin’ challenge, the issue of accountability for atrocity in Cambodia has been focused on the unique and grotesque actions of the Khmer Rouge. What happened in the space of 3 years, 8 months and 20 days has certainly had a profound impact on what Cambodia is and what Cambodians are today. This fixation is understandable, but takes a highly complex situation out of context and any understanding of what happened therefore risks being distorted. As the current Special Representative of the Secretary-General to Cambodia rightly points out, human rights continue to be violated on a systemic scale, and this cannot be explained away by poverty or massive violations of human rights during the period of Democratic Kampuchea.6 Those claiming that the narrow process of accountability at the Extraordinary Chambers7 which have been created to try the Khmer Rouge in a domestic process with United Nations assistance will provide ‘truth’ and the ‘answers’ to the overwhelming whys of that period need to be more realistic. Any genuine investigation into the Khmer Rouge will need also to look at the conditions that bred the Khmer Rouge ideology, including the geopolitical situation in the late 1960s and early 1970s. Not to be overlooked are the factors that sustained their influence, in and out of power. Those who believe that trying a few geriatrics is the elixir that is going to transform Cambodia need to remove their rose-tinted glasses. The war that lasted almost twenty years from 1970 and the periods of socialism in Cambodia under the successor regime of the People’s Republic of Kampuchea (1979-1989), and the State of Cambodia (1989-1993), have also deeply influenced society and the nature of life in Cambodia. One cannot pretend that the Khmer Rouge and the failure to hold them accountable are solely responsible for all that is wrong in Cambodia today. There are many ways of understanding the ‘accountability’ that victims of human rights violations around the world cry out for. For some, it means having perpetrators held responsible in a court of law, and the punishment serves as ‘justice’ for what they did. For others it can mean acknowledgement of the harm done, revealing the whole story of what happened and genuine remorse by the perpetrator. For some, it is about pure and simple revenge. Others see accountability in a broader sense that goes beyond victim and perpetrator, holding States and other entities responsible for their role in the violations. Surveys have shown that over a quarter of a century on, Cambodians overwhelmingly want to see justice for the crimes of the Khmer Rouge, and that means a legal process in a court of law.8 They are more divided (55.9% for, 44.1% against) on their preparedness to endure a sub-standard judicial process if that is all that can be provided.9 The true significance of 4 Cambodia was ranked 151 out of 163 countries in Transparency International’s 2006 corruption index. 5 See SRSG Cambodia Report 2004, supra note 3, para. 10. 6 Ibid., para. 9. 7 On 10 August 2001, King Sihanouk of Cambodia signed legislation approving the creation of Extraordinary Chambers for the prosecution of crimes committed during the reign of the Khmer Rouge from 1975 to 1979. This has now been replaced by an amended law. This is discussed in detail below. 8 See Suzannah Linton, Reconciliation In Cambodia, (Phnom Penh: Documentation Center of Cambodia, 2004), 162-169, 185-191, 216-219, 229-231 (hereafter “Linton, ‘Reconciliation In Cambodia’ ”). 9 Khmer Institute of Democracy, Survey on the Khmer Rouge Regime and the Khmer Rouge Tribunal, 2004. 11 SYBIL PUTTING CAMBODIA’S EXTRAORDINARY CHAMBERS INTO CONTEXT 197 holding persons responsible for atrocities that are 32-36 years old may be the opportunity that the symbolism of the legal process affords to realign a still devastated society that continues to thirst for justice. Yet, accountability in Cambodia cannot be seen as being just about the forthcoming Extraordinary Chambers. Preceding this a has been a complex story of failed accountability, impunity and pragmatic uses of amnesty and pardon that have coloured policy and the practical decisions that have been taken by the Royal Government of Cambodia (hereafter ‘RGC’) and the United Nations. These factors are likely to continue to play a role as the process unfolds. Also relevant is the fact that the struggle to ensure the basic integrity of these chambers and their compatibility with fair trial and due process standards runs parallel to long-standing efforts at judicial and legal reform in Cambodia. They are already rubbing against each other as the proceedings at the chambers get underway. With the Extraordinary Chambers project crawling into the 2nd of its 3 year lifespan, the Internal Rules having just been adopted, and the court looking increasingly likely to be able to produce at least a trial or two, a comprehensive and informed study is timely.