Sunday 25 Feb 2018 | 03:14 | SYDNEY
Sunday 25 Feb 2018 | 03:14 | SYDNEY

Despite the controversy, the Khmer Rouge Tribunal is a success

Cambodian survivors watching the guilty verdict for Nuon Chea and Khieu Samphan, August 2017 (Photo: Omar Havana/Getty Images)

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19 January 2018 10:11

The genocidal nightmare of the Khmer Rouge finally came to an end on 7 January 1979, 39 years ago this month. Evidence mass of graves and some of the worst crimes of the 20th century were soon discovered and preserved. But the Cold War killed any prospect of a tribunal. Justice was all but frozen for decades until 2006.

In that year, the UN-backed Khmer Rouge Tribunal was finally established in Phnom Penh. By 2010, survivors had gained some measure of justice with the conviction of Kaing Guek Eav, director of Phnom Penh's S21 prison which Cambodian film-maker Rithy Pan dubbed The Khmer Rouge Killing Machine in his 2003 documentary of the same name.

After 12 years, the tribunal is approaching the end of its mission amid wildly contrasting conclusions about its undeniable achievements and widespread perceptions of tarnished integrity.

Scathing attacks on the tribunal have appeared in various media outlets, including The Sydney Morning Herald, Time Magazine and The New York Times which belittled the court's achievements with the headline, '11 Years, $300 Million and 3 Convictions. Was the Khmer Rouge Tribunal Worth It?'.

The public gallery at the tribunal (Photo: Tom Fawthrop)

The tribunal is based on a partnership between the Cambodian government and the UN, known as the Extraordinary Chamber in the Courts of Cambodia (ECCC), which includes international judges and lawyers alongside their Cambodian counterparts. The ECCC's reputation has been under siege constantly from reports of corruption, poor management and political interference. However, many survivors have been more concerned with the more fundamental issue of ending Khmer Rouge impunity. A group of ten victims represented by the International Federation for Human Rights (FIDH) praised the court's conviction of former Khmer Rouge leaders in August 2014:

We will finally be able to mourn our relatives. It was important for us to see those who planned and ordered these crimes be held to account.

War crimes specialist and the UN Secretary-General's Special Expert on UN Assistance to the Khmer Rouge Trials, David Scheffer, hailed the conviction of the two most important surviving Khmer Rouge leaders:

Today, the winds of international justice swept through the fields, forests, and towns of Cambodia where millions perished. After a conflict that killed a quarter of the population of Cambodia, two defendants, Khieu Samphan and Nuon Chea, were found guilty of crimes against humanity.

After the completion of three trials with five indictments and three convictions in 2017, the tribunal has been winding down; although two further cases, listed as 003 and 004, that are still under investigation have run up against objections from the Cambodian co-prosecutor and judges.

These results have not satisfied Human Rights Watch, whose report in 2014 claimed the tribunal was 'a failure with too few convictions and too much political interference'. But Human Rights Watch did not mention that many more arrests, indictments, and convictions would have been possible if the tribunal had not delayed for more than 30 years. Cynical Western diplomacy in the 1980s, such as endorsing the recognition of the Pol Pot regime in exile in Cambodia's seat at the United Nations, shielded Khmer Rouge leaders from prosecution.

This tortuous and twisted path to justice resulted in most of the top suspects being old men and women by the time the tribunal got going. Many, including Pot Pot, were already dead. Two other arrested top leaders, Ta Mok and Ieng Sary, died of illness before the ECCC could deliver its verdict. Is it so surprising that only a few old men have been convicted?

Many other yardsticks for judging the achievements of international justice exist beyond the narrow field of counting convictions. Among all the world's international justice tribunals, Cambodia's is the exemplar of public outreach and access. The ECCC's cavernous public gallery, with seating capacity for more than 450 onlookers, has enabled thousands to attend. The tribunal has engaged thousands more through its public outreach programs, including film screenings, study tours, and school lectures. Hundreds of thousands have watched the daily live television broadcasts.

As former ECCC legal affairs spokesman Lars Olsen put it:

I met so many survivors to which the work of the tribunal mattered a great deal. All these encounters convinced me that the work of the tribunal matters to so many survivors, and that the ECCC was their only hope to get some sense of justice.

Or in the words of Youk Chhang, founder of the Cambodian DC-Cam (the Cambodian Documentation Centre about the Khmer Rouge era):

Without the Khmer Rouge Tribunal, Cambodia would not be able to record and preserve the history of the Khmer Rouge regime for future generations, and establish a critical foundation for the rule of law.

The relative fairness of ECCC proceedings stands in sharp contrast to the workings of so many legal systems in Asian countries, especially the Cambodian courts. In 2017 the courts have been pressured by Prime Minister Hun Sen and the Cambodian People's Party to rubber-stamp dubious charges of treason and fomenting regime change against the Cambodia National Rescue Party, now officially a banned organisation.

As part of an evolving process of international justice moving beyond the outdated and also flawed Hague Tribunals, almost no one denies serious shortcomings in the workings of the ECCC's complex and cumbersome machinery. Mixed tribunals also provide a local or regionally based and less costly alternative to the International Criminal Court. Former co-prosecuting counsel at the ECCC Kip Hale notes the need to put the body's flaws in perspective:

While some grievances justifiably deserve attention, they do not overshadow this tribunal's valuable contributions to the world's effort to hold accountable those who participate in genocide, crimes against humanity, and war crimes.

In other regional cases of egregious crimes, the truth remains under wraps. In Indonesia, official secrecy has blocked impartial investigation of the bloody purges of the 1960s in which hundreds of thousands were massacred. In a region where international justice has rarely set foot, Cambodia can take satisfaction in bravely confronting the horrors of the darkest chapter in their history.

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