Experts look at Cambodia’s Khmer Rouge trial

A U.N.-assisted court on Thursday will deliver its verdicts in a case against the two most senior surviving leaders of Cambodia’s Khmer Rouge, charged with crimes against humanity.

PHNOM PENH, Cambodia — A U.N.-assisted court on Thursday will deliver its verdicts in a case against the two most senior surviving leaders of Cambodia’s Khmer Rouge, charged with crimes against humanity. The case — covering forced movements of people and a mass execution — is just a sliver of the offenses that led to the deaths of an estimated 1.7 million people through starvation, medical neglect, overwork and execution when the group held power in 1975-79.

The tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia, began its work in 2006 and had spent $204.6 million up to the end of last year. Cambodian and international jurists jointly comprise the bench, prosecution and defense teams.

The trial of Khieu Samphan, the regime’s head of state, and Nuon Chea, right-hand man to the group’s late leader, Pol Pot, began in November 2011 and ended in October 2013. More than 100,000 people attended its 222 sessions.

A second trial of the two is to start by the end of the year, adding charges of genocide to additional counts of crimes against humanity. Five low-ranking Khmer Rouge are under investigation, with a decision on whether to try them expected sometime next year, a move opposed by Cambodian Prime Minister Hun Sen. The tribunal has heard one previous case, resulting in the conviction of the commandant of a torture center.

The Associated Press asked legal and academic experts to explore questions beyond facts and figures. Their replies have been edited for brevity:


Q: The Khmer Rouge Trial seems like a very long and expensive process to have prosecuted only three elderly defendants. Is the expense justified?

A: Justice mechanisms for complex crimes that span an entire country and result in nearly 2 million deaths are inherently time-consuming and expensive. They require exploring extensive evidence and applying detailed principles of international law.

Nonetheless, the court’s record for cost-per-accused is high compared to other hybrid tribunals and to the international tribunals for Rwanda and the former Yugoslavia. This is primarily because the court has indicted and tried so few people. The complicated procedures of the court also contribute to its relatively high cost.

Whether, in the end, Cambodians will believe the court was worth the time and the expense is a question that can only be answered in the future by looking at whether the court contributes to a culture that rejects impunity and respects rule of law, and whether Cambodians have a sense that substantial justice for Khmer Rouge atrocities has been delivered.

— HEATHER RYAN, who has monitored the tribunal’s work for the Open Society Justice Initiative.


Q: A school of thought suggests that a major purpose of the Khmer Rouge tribunal is to establish an accurate record for history’s sake. To what extent do you think this has been accomplished?

A: I agree with the proposition, but I would be happier with the word ‘hope’ than with the word ‘purpose.’ That said, I think one of the most important outcomes of the ECCC so far has been the mass of documentary data that has been assembled relative to the Khmer Rouge era. Tens of thousands of pages — including court testimony but not limited to statements made in court — have been assembled in three languages. These pages are permanently accessible to anyone, and they contain masses of material that had not emerged in the printed record before the trial.

Whether anyone will ever attempt to write an accessible history of the Khmer Rouge era is another question. One prominent scholar… seems to have abandoned the project. Others will probably be cowed by the mass of data that was available to scholars before the ECCC, principally in the archives of the Documentation Center of Cambodia (which collects archival material on the Khmer Rouge), and by the data accumulated since.

— DAVID CHANDLER, retired professor of history at Australia’s Monash University and author of several books on Cambodia.


Q: The surviving Khmer Rouge policymakers have been brought to justice. Why is it important that lower-level Khmer Rouge also be tried?

A: As many as 2 million people died under the Khmer Rouge. Yet Prime Minister Hun Sen says that the convictions of three people will be enough to provide justice for the Cambodian people. U.N. appointed prosecutors and judges have attempted to prosecute a handful more. But Hun Sen has said that even a few more cases will not be allowed. He has spent years obstructing justice and delaying trials.

Why would a Cambodian leader do this? Hun Sen, a former Khmer Rouge member, appears to be afraid that investigators would implicate his colleagues in the ruling Cambodian People’s Party. He may even be trying to protect himself, since there are allegations that he participated in abuses.

And what about the victims? Senior Khmer Rouge killers continue to live in villages and towns next to the surviving family members of those they killed. Would a European or American Jew accept this? The continued hunt for Nazi collaborators almost 70 years later answers this question. So why should Cambodians get a different brand of justice, one that the Japanese, Australian and European governments continue to fund?

— BRAD ADAMS, Asia director for New York-based Human Rights Watch.


Q: The great scale of the atrocities committed under the Khmer Rouge inclines people toward a presumption of the defendants’ guilt. Can justice truly be served in such a case?

A: The public convicted the accused … in the court of public opinion before the trial started. Thankfully, judges are trying the case. They are expected to set aside their presumptuous and prejudices, listen to the evidence, afford all parties their rights, apply the law as it is and not as they would wish it, assess the evidence correctly, and dispassionately render a judgment.

The quality of the judgment will determine whether the judges performed their duty. If they selectively used some of the evidence in making their findings and conclusions while ignoring contradictory evidence at odds with their conclusions, then the trial was a result-oriented charade. If the judges applied incorrect legal standards in assessing the evidence and systematically failed to properly assess the relevant evidence, then not only the credibility of the judges comes into question, but also the purpose for holding the trial.

If the judges afforded the accused procedural and substantive justice, especially in the assessment of the evidence and the application of the law, then, irrespective of the already rendered guilty verdict in the court of public opinion, there can be no cause for concern that a miscarriage of justice was committed.

— MICHAEL KARNAVAS was a lawyer for former Khmer Rouge Foreign Minister Ieng Sary, who died during trial, and represents Meas Muth, a prospective defendant in any future trials.