UN-backed Cambodian trials of Khmer Rouge leaders set to start

By John Roberts
19 November 2007

Two former leading members of the Khmer Rouge government were detained by Cambodian police last Monday as part of the lead up to UN-backed trials of those responsible for the deaths of up to two million people in the 1970s through mass executions, starvation and forced labour.

Khmer Rouge foreign minister Ieng Sary and his wife Ieng Thirith, also a former minister, had been living in the capital Phnom Penh for more than a decade after surrendering to the government of Prime Minister Hun Sen in 1996. They received a limited amnesty. The two were taken to the headquarters of a special tribunal and are likely to be charged with crimes against humanity.

Two other Khmer Rouge leaders were arrested earlier this year—Kaing Geuk Eav, also known as “Duch”, and Nuon Chea, often referred to as “comrade number two”. Duch ran the notorious Tuol Sleng prison and interrogation centre. Nuon Chea was regarded as the deputy of Khmer Rouge leader Pol Pot (Saloth Sar) who died in 1998. At least two other Khmer Rouge leaders are believed to have been identified by prosecutors—former president Khieu Samphan and Meas Muth, a son-in-law of military chief Ta Mok, who died last year.

The investigative phase of the trials of Duch and Nuon Chea have already begun behind closed doors in the special court known as the Extraordinary Chambers in the Courts of Cambodia (ECCC). Public trials are not expected to begin until well into next year.

The death of an estimated 20 percent of the Cambodian population was one of the great crimes of the twentieth century. However, there will be no objective accounting of this terrible period by the UN-backed tribunal. The trials will be narrowly focussed on the activities of individual Khmer Rouge leaders, rather than delving into the criminal responsibility of the major powers, particularly the US, for the tragedy.

The very fact that it has taken more than a decade to establish the ECCC is evidence of the protracted behind-the-scenes manoeuvring to protect the interests, and dirty secrets, of all the key players. The composition of the court, the makeup of the prosecutor team and the details of procedure have all been the subject of bitter wrangling to ensure that no side gained the upper hand in steering the proceedings and deciding the outcome.

The make-up of the tribunal—17 Cambodian and 13 international judges—was decided in May 2006. Among the more contentious issues have been the rights of the accused to be represented by foreign lawyers and the mechanism for resolving conflicts between Cambodian and foreign judges, who come from the US, the Netherlands, Poland, France, Australia and Sri Lanka. The legal procedure is a hybrid based on Cambodian law, derived from the legal system of the former French colonial power, and international legal practices imposed by the UN.

Even after the judges were appointed, they haggled for months over rules and trial procedure. It was not until June 2007 that the basic framework for the trials was agreed. The prosecution team headed by Canadian lawyer Robert Petit, who has worked on war crimes trials in Rwanda, Sierra Leone, Kosovo and East Timor, and his Cambodian counterpart Chea Leang, began in July.

In the investigative phase, the judges review the evidence in camera and decide which cases will proceed to public trial before five-member panels of three Cambodian and two international judges. Verdicts require the agreement of a majority of the Cambodian judges and at least one UN-appointed judge. The court has not provided a starting date for the trials. But now that the investigative phase is underway, proceedings are deemed to have formally begun.

Theary Seng, director of the Centre for Social Development, told the Honolulu Advertiser last month: “There are things happening right now in the Khmer Rouge tribunal, but we don’t have access to it. There’s concern that the [Cambodian] government wants to control the results, and the information that is made public.”

It is certainly the case that the Hun Sen government has a vested interest in manipulating the tribunal’s proceedings. Hun Sen, like many of the country’s present ruling elite, was a Khmer Rouge official. He served as district deputy leader before fleeing to Vietnam to avoid an internal purge. He returned with an invading Vietnamese army in January 1979 to head a new government after the Pol Pot regime was ousted.

But Hun Sen and his ministers are not the only ones with something to hide. The US is directly responsible for destabilising Cambodia. As part of the Vietnam War, the Nixon administration instigated the CIA-directed coup by General Lon Nol to oust the neutral government of King Norodom Sihanouk in 1970. Saturation US bombing from 1969 to 1973 killed an estimated 700,000, devastated the economic life of the country and opened the door for the Khmer Rouge to seize power in 1975.

While sometimes falsely depicted as socialist, the Khmer Rouge regime was guided by an extreme form of Maoism—an eclectic mixture of Stalinism, nationalism and peasant radicalism. Its hostility to intellectuals, workers and urban life reflected the sentiments and interests of backward layers of the peasantry, not the working class. The Khmer Rouge’s response to the economic destruction wrought by the US military was to drive the urban population into the countryside on the basis of its reactionary perspective creating a rural utopia without money or industry.

After being driven from power, the Khmer Rouge and its royalist allies continued to enjoy wide international support despite its terrible crimes. Right up to 1991, the US, China and the European powers continued to recognise the Khmer Rouge as the legitimate government of Cambodia as a useful counterweight to both Vietnam and the former Soviet Union.

Following the collapse of the Soviet Union, the major powers saw the opportunity to open up Cambodia as a source of cheap labour and raw materials. In the name of national reconciliation, the UN intervened in the 1990s to affect a compromise between the Hun Sen regime, the Khmer Rouge and the royalist Funcinpec party. Prince Sihanouk, the former king, was installed as head of state from 1993.

But the enormity of Khmer Rouge atrocities meant that they could not simply be swept under the carpet. A large segment of the Cambodian population was directly affected by the mass murders of the 1970s. The UN-backed tribunal has been established to finally bury these terrible crimes. It is, however, presiding over a potential political powder keg.

Suggestions in August and September that Prince Sihanouk, now 85, should be compelled to testify before the courts provoked uproar in the national parliament. The prince was granted legal immunity by parliament in 2004 when he retired as head of state.

Information Minister Khieu Kanarith threatened to throw the ECCC out of Cambodia if it tried to call Sihanouk as a witness. Hun Sen went on national radio to denounce the idea as “a tactic to destroy Cambodia” and warned of serious consequences for anyone trying to revoke Sihanouk’s immunity. The minor parties in the ruling coalition, including Funcinpec, quickly lined up with Hun Sen.

Sihanouk announced that he would refuse to testify. He collaborated closely with the Khmer Rouge against the Vietnamese-backed government while in exile in Beijing from 1979 to 1991. Sihanouk has hinted that if he was compelled to take the stand and face cross-examination of his role, then he would spill the beans on others, including the US.

The Honolulu Advertiser last month noted that some Cambodian villagers already “question why former US leaders will not be prosecuted for the massive bombing campaign that killed hundreds of thousands between 1969 and 1973.” Speaking to the Phnom Penh Post in September, Asian Human Rights Commission researcher Mong Hay commented: “If he [Sihanouk] were to face cross examination as a witness the King Father could be made to reveal something people would rather remain hidden. It could be like opening Pandora’s box.”

Those involved in the trials are well aware of the political minefield ahead. An article last year by Australian lawyer Gwynn MacCarrick entitled “Lessons from the Milosevic Trial” lamented the fact that the Serbian leader Slobodan Milosevic had been able to turn his trial in The Hague into a political platform to indict the role of the US and the European powers in the Balkans.

MacCarrick advised prosecutors in the Cambodian trials to “get smarter and more efficient”, “keep it simple” and keep the trial free from “posturing”. The process, she wrote, should ensure “a timely and disinterested judgement from legal institutions which are, to the extent possible, freed from their political context”.

Whether they succeed or not, all those concerned in the trials will undoubtedly seek to do precisely that. The aim is to convict and punish a few scapegoats in order to block any examination of the “political context”, past and present, to obscure the role of the major powers and to prevent the necessary political lessons from being drawn.

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