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Cambodia hurries to prosecute ageing Khmer Rouge leaders

More than 30 years after they were deposed, the leaders of Cambodia’s Khmer Rouge are on trial in the country they once ruled. The body set up to prosecute them, the Extraordinary Chambers in the Courts…

Running out of time: Khmer Rouge defendant Nuon Chea. Wikimedia Commons

More than 30 years after they were deposed, the leaders of Cambodia’s Khmer Rouge are on trial in the country they once ruled. The body set up to prosecute them, the Extraordinary Chambers in the Courts of Cambodia (ECCC), is now reconvening to argue over the future of their cases. The complex process by which they are being tried is unfolding more than 30 years after they were overthrown – and it is running out of time.

The Khmer Rouge took control of Cambodia in 1975; the three years and eight months of their rule were marked by the systematic persecution of ethnic and religious minorities, as well as serious gender-based violence throughout the country. Vietnamese and Cambodian factions removed the Khmer Rouge from power in early 1979, but by then 1.7 million people had been executed or died of starvation or disease. The former Khmer Rouge leadership now stands accused of crimes against humanity, grave breaches of the Geneva Conventions and genocide.

The ECCC has enjoyed mixed success as an exercise in accountability and justice. It is a “mixed” domestic and international tribunal, intended to maximise the resonance of prosecutions with the Cambodian public while offering judicial proceedings that can reflect international legal standards. While the sentencing of “Duch”, former head of the infamous S-21 interrogation centre, to life imprisonment in 2012 was celebrated as a landmark achievement, the fate of the headline trials of the four more senior KR leaders in the ongoing “Case 002” remains unclear.

The old age and poor health of defendants means the ECCC is under pressure to deliver its verdicts quickly. Ieng Thirith, former minister of social affairs, was “severed” from proceedings in November 2011 after being found unfit to stand trial. Ieng Sary, former foreign minister, died in March 2013. The health of the remaining defendants, Nuon Chea and Khieu Samphan, is also ailing.

To expedite proceedings, ECCC judicial staff broke the remainder of Case 002 into mini trials, with each prosecution meant to focus on a narrow, manageable set of events or case sites. The mini trial of Case 002/01, examining the evacuation of Phnom Penh in April 1975, is set for a verdict later in 2014.

But prospective ECCC prosecutions beyond Case 002 appear unlikely in the face of opposition from the Cambodian government. More broadly, the tribunal continues to suffer funding problems, with a series of strike actions by unpaid Cambodian staff in July 2013, and international backers increasingly suffering “donor fatigue”. The prospect of the court seriously delivering on its promise to “set the record straight” is looking increasingly slim.

An uncertain legacy

The court’s current focus is on the scope of Case 002/02. This second headline mini trial – re-examining the responsibilities of the leadership for the S-21 interrogation centre, and for the fate of the Vietnamese and Cham Muslim minorities – is driven by a sense of urgency. Prosecutors appear anxious that Cases 002/01 and 002/02 are able to represent the initial indictments, particularly given the delicate question of genocide recognition in Cambodia. It is likely that Case 002/02, if it reaches conclusion, will be the ECCC’s last substantive verdict.

With court’s work nearing conclusion, questions of public satisfaction with the process remain neglected. As it has elsewhere, “transitional justice” in this context has raised as many questions as it was intended to settle. Research by the Berkeley Human Rights Centre has suggested (unsurprisingly) that accountability for the Khmer Rouge era has tended to be obscured by the more immediate material and economic problems facing most Cambodians. This is particularly sensitive given that the work of the ECCC has so far cost about $175m.

At the same time, given the appetite for ECCC proceedings in some sections of Cambodian society, issues of expectation management are front and centre. At its establishment, the ECCC exuberantly presented the process as a panacea for many of Cambodia’s social problems: it would enhance judicial capacity, challenge impunity, satisfy the needs of victims, and reconcile divided communities. Although they were a necessary means to sell the court to its donors, these grand ambitions also set it up to disappoint its key constituents (a problem that is far from unique to Cambodian experiences of transitional justice).

The inconsistencies of the ECCC prosecutions have not gone unnoticed. Many Cambodians point to the double standard of turning a blind eye to non-Khmer Rouge human rights violations perpetrated during Cambodia’s 50-year trauma of war and conflict, including the many hundreds of thousands killed by US bombing in the 1970s. And as arguments over the ECCC’s legacy and the historical record continue to rage, it is still uncertain whether verdicts focusing largely on S-21 and the evacuation of Phnom Penh will resonate with the experiences and memories of those who survived the Khmer Rouge years.