Conviction in Cambodia a victory in fight against injustice

One of the first impressions people receive of Cambodia is of the gentle and courteous nature of the local Khmer people. This gentleness seems at odds however with the country’s recent history, when it was terrorised by the murderous dictator Pol Pot, and his political party, the Khmer Rouge. Over a quarter of a century ago Brother Number One, as Pol Pot became known as, imposed a tyrannical regime over the inhabitants of Cambodia that was unsurpassed in its brutality. Estimates put the number of dead at anywhere between one and three million.

 

Yet the ordinary people remain remarkably compliant and accepting of the current situation which had up to now permitted the perpetrators of mass murder to remain unaccountable. Recently the Extraordinary Chambers in the Courts of Cambodia, the so-called war crimes tribunal, handed down its first verdict in respect of Duch, the 67-year-old the former chief interrogator at Phnom Penh’s infamous Tuol Sleng detention centre.

 

Duch, whose full name is Kaing Guek Eav, admitted overseeing the torture and execution of men, women and children. Hundreds of photographs of victims remain on display in the former school and the rooms still contain the instruments of torture and bloodstains of the thousands of victims. 

 

The war crimes chamber was set up to investigate and try the most senior leaders of the Khmer Rouge deemed primarily responsible for the atrocities committed in Cambodia from 1975 to 1979. Although part of the Cambodian court system, the chambers are in effect specially created courts established on the basis of an agreement between the UN and the Cambodian government. This hybrid court with national and international judges and prosecutors is intended to provide fair public trials in accordance with international standards. 

 

The Chambers have jurisdiction in respect of certain international and domestic crimes including genocide, crimes against humanity and war crimes. Most Cambodians do not understand that the crimes committed by the Khmer Rouge may not constitute the crime of genocide, which is narrowly defined in international law.

 

The most difficult aspect of proving genocide is finding evidence of intent to destroy a protected group. This is made more problematic in the case of Cambodia where the victims and the perpetrators were often the same i.e. Khmer. While there might be evidence supporting a conviction of genocide against specific groups such as the Cham Muslim community or the Vietnamese minority, the bulk of killings and other acts against the broader Cambodian population will be difficult to explain legally as genocide.

 

This will be a difficult pill for the long suffering ordinary Cambodians to accept especially, as they have been told by their own government that what happened during the Pol Pot years was genocide.

 

However, there is ample evidence of crimes against humanity in the widespread and systematic way civilians were targeted by the Khmer Rouge. For this reason many Cambodians have called for the imprisonment of former Khmer Rouge leaders and do not always appreciate the need for fair trials and due process procedures in accordance with international human rights law. Pol Pot died while under house arrest in 1998.

 

There are many practical obstacles to proving these crimes after such a long period. But it is the political difficulties that pose the real threat to the effectiveness of the Chambers. Many of the Cambodian judges appointed had little experience or expertise to qualify them for the task at hand. There have been allegations that those appointed by the government are paying ‘kickbacks’ from their salaries. 

 

The international judges and other staff have had to overcome significant obstacles to agree rules of procedure for the conduct of the trials. Issues relating to the role of co-prosecutors, the right of defence counsel to conduct a robust defence and the role of investigating judges were especially contentious.

 

Tensions still exists between international and national staff. Matters are not helped by the apparent reluctance of the Cambodian government to go after all the former Khmer Rouge leaders, some of whom managed to transfer allegiances towards the end of the conflict. International staff do not always help their case by their arrogant attitude to the cultural and political context of post conflict Cambodia. Many seemed more preoccupied with their reputations than with the interests of justice.

 

There are few in Cambodia who have not been touched in some way by the atrocities of the Khmer Rouge. However, the Chambers provide a forum to establish a record of what happened and make those most responsible publicly accountable. It remains crucial that more trials and investigations proceed, but they must be fair and consistent with international fair trial standards in sentencing and procedure.

 

Despite disappointment among the survivors and relatives of victims at the sentence handed down in the case of Duch, the trial is a victory for those opposed to the culture of impunity. It sends a clear message to other rulers in Burma and elsewhere that they too will be held accountable. The real challenge is to go after the remaining perpetrators who still occupy positions of influence among the political elite.