The ECCC, We Shall See

Phnom Penh, Cambodia
The date of April 17th recently past marks the anniversary of the Khmer Rouge forces taking control of the government and territory of Cambodia. The year they did so was 1975. The Khmer Rouge were the Cambodian Communists, who had been waging and winning a civil war in the countryside, and who finally closed in on the capital of Phnom Penh and the government and forces loyal to Marshall Lon Nol, which called itself the Khmer Republic. Five years earlier, Lon Nol had overthrown, in what has often been called a coup d’etat, the regime headed by one of Cambodia’s major historical figures, Norodom Sihanouk. Sihanouk largely is credited with successfully maneuvering Cambodia to independence from the French in 1953. (Funny enough, the official Independence Day is November 9th, my birthday; when I first told this to my Executive Director, who is Cambodian and survived the Khmer Rouge times, he looked at me with amused eyes and said, “it’s a sign”- very superstitious.) In that infamous year of 1975, the Communist forces of Vietnam also claimed their victory over the forces of South Vietnam that had formerly been supported by the U.S. It was the same with the Khmer Republic. The U.S. government sided with that regime, which from most accounts was not only notoriously corrupt and incompetent, but whose policy and actions were often determined with the assistance of astrologers and spiritualists of sorts. They never stood a chance against the hardcore fanatics led by Pol Pot and his gang, who it is worth noting, had the ideological and military support of Chairman Mao’s China. Cambodia and the world would soon know the full wrath of this particular revolution, and April 17, 1975 stands as one of those inglorious dates in the history of man’s awesome inhumanity to man.

So it is that now, all these years later, a court has been established in the reborn Kingdom of Cambodia with the very targeted mandate to bring to justice some of the surviving leaders of the Khmer Rouge who in number you can count with, at most, half to all the fingers on your two hands. Brother Number 1, Saloth Sar, whose nomme de guerre was Pol Pot, the unquestioned leader of the Khmer Rouge movement, died in 1998. Yet a handful of others still live, though they are advanced in years and some in poor health, to face a form of justice, and they are, namely: Brother Number 2, Nuon Chea, Deputy Secretary of the KR’s Central Committee and member of its Standing Committee, the highest decision making bodies; Ieng Sary, Deputy Prime Minister and Foreign Minister; Sary’s wife, Ieng Thirith, in charge of culture, social welfare, and jointly responsible with her husband for foreign affairs; Khieu Samphan, Chairman of the State Presidium; and, Kaing Guek Eav, alias Duch, head of Khmer Rouge internal security and prison camps, particularly the Phnom Penh high school turned prison and torture center known as S-21. All of them are now charged with Crimes Against Humanity and some with other international humanitarian crimes, in pre-trial detention, and being investigated by the court, which is officially called the Extraordinary Chambers in the Courts of Cambodia, or ECCC, because everything in Cambodia takes an acronym, you see. Along these lines, it is also often called the KRT, which stands for the Khmer Rouge Tribunal. I prefer to use KRT when speaking about the court; all those Cs get one’s tongue tied, though many in Cambodia’s development scene have taken to calling it the E triple C, which is kind of catchy.

There has been and will be much debate and discussion about this juridical animal, the ECCC, that has been set up to try the vicious animals, of the human variety, that still live while millions perished or live with the devastating memories and deep wounds caused by their mad policies and practices. At the heart of the debate is whether the ECCC will fulfill its mandate in a manner that can be objectively viewed as fair and public, competent, independent and impartial. The ECCC has been called a hybrid tribunal because it operates through a combined effort of Cambodian administrative, legal and judicial personnel with the support and assistance of international personnel. The Cambodian side has been given top titles and authority and make up a majority of the various court chambers of first instance and appeal, though the ECCC is almost entirely funded by the United Nations and its member states. This arrangement was the result of relatively hard fought and drawn out negotiations between representatives of the Royal Government of Cambodia and the United Nations. The Cambodian government was insistent that the ECCC remain, in the majority, a court of local substance and characteristics. The U.N.’s side of the court took the acronym UNAKRT, which stands for the United Nations Assistance to the Khmer Rouge Tribunal. The ECCC’s hybrid structure makes it different than the tribunals that have been established to address the slaughters that took place in the Balkans (most notably Bosnia-Herzegovina) and Rwanda in the 1990s, as those have been funded, staffed and operated exclusively under the mandate and authority of the United Nations.

A major issue for those of us who are familiar with the Cambodian approach to criminal justice is that it is widely known for its corruption and failure to adhere to many fundamental standards of due process of law and fair trial. The Cambodian criminal justice system is modeled in large part on the French civil law inquisitorial system and in many respects this system, particularly the Cambodian developing country version, deals with certain key criminal procedure and rights in a manner quite different than the Anglo-American common law adversarial system. Of note, the presumption of innocence, right to remain silent and right to confront witnesses through cross-examination and have all evidence for and against the accused fairly and fully examined, or what can be called the “equality of arms”, are in too many cases dealt with in a way that gives short shrift to the importance these rights play in safe guarding values that underpin the overarching right to liberty. Charges against an individual suspected of criminal wrongdoing are brought by a Prosecutor who then hands the case over to an Investigating Judge. It is then up to the Investigating Judge to more thoroughly investigate in order to ascertain the truth of the matter, and decide whether the charges should be dismissed or be carried over to a trial before a panel of trial judges, who sit as both judges of the facts and law.

Day to day reality in the normal domestic Cambodian system demonstrates that the Prosecutors and Judges, for all intents and purposes, become the criminal procedure, law and standards of due process. In other words, despite what is the letter of the law or a reasonable interpretation thereof, and the credible evidence before them, these judicial “officers” will do what they want and human rights advocates are often seriously stifled in their attempt to seek redress or reform for clear violations of procedure and human rights. Most of the sitting Cambodian judges received their education from Communist or Socialist countries and are beholden to the whims of the ruling party of Cambodia, the Cambodian Peoples Party (acronym: CPP), which has and will continue to dominate the government – and with it the political and economic development - of Cambodia. Many of the longtime and present core leadership of the CPP were cadres of the Khmer Rouge that took over Cambodia in 1975, though they later made the strategic move to revolt against the Party center and Pol Pot’s leadership and take the revolution in a different direction with the military and political support of the recently victorious Vietnamese forces. They called this new force the National United Front for the Salvation of Kampuchea and their enemy became the Pol Pot – Ieng Sary clique. The alliance between the United Front and the Vietnamese led in short order to the defeat of the Pol Pot – Ieng Sary clique and the removal of them from their dominant political and military control by January of 1979.

Yet there continued civil war and conflict and Vietnamese domination until the end of the 1980s. With the crumbling of the Soviet grip on the international Communist movement, the time was right in the early 1990’s for a U.N. brokered peace initiative. What followed was the multi-billion dollar peacekeeping and nation building mission under the United Nations Transitional Authority for Cambodia, or keeping to our acronym loving ways, UNTAC. The first elections were held in 1993 under the auspices of UNTAC, and have been held every five years since then, with the next round to be held this July, where again, the CPP surely will continue its lock on the government. Notwithstanding the efforts of the international community to rebuild and strengthen Cambodia’s justice system to the tune of many millions of dollars in development aid during and since UNTAC, impunity and domination by the executive branch remains the norm in Cambodia. When a powerful or connected party is directly or indirectly involved in a matter, as is often the case, there is and cannot be proper due process of law and fair trial. It is this rule of law defying strength of impunity that many will assert is a legacy, in part, of the Khmer Rouge experience and the failure to definitively address the multiplicity of crimes committed up and down the chain of command.

Thus, these five leaders of this notorious regime, who joined together to wreak such havoc on this beautiful Southeast Asian country and people, stand charged, and we shall see how this special court, with very local features and characteristics and funding and assistance from the international community, will handle its special duties. So far, the record is quite mixed - not surprisingly. Independent auditors and watchdogs have hammered away at the Cambodian hiring practices, court management, accountability and transparency standards, and there have been direct allegations of Cambodian staff having to give kickbacks to officials higher up. The jurisprudence on the limited number of contentious issues that have come before the court so far has shown a reasonable measure of acceptable legal and judicial analysis and openness, but also in some instances flawed reasoning and decision making.

And now, though it seems that the ECCC proceedings have only just gotten underway, the court is already at a very serious crossroads. Despite all the years of wrangling and ability to prepare among the relevant Cambodian government and U.N. officials, it now has been determined that the original budget of $56 million is inadequate and the original time frame of three years to complete the job is too short. Proposals to increase the budget by $114 million and extend the mandate to 2011 are with the appropriate representatives at the United Nations. The governing documents of the ECCC require that the trials take place in a fair and expeditious manner, yet as it potentially runs out of money, these Khmer Rouge leaders and executioners sit in provisional detention cells, and wait, along with the rest of us, most notably the millions of victims, for the course of this ECCC to grind on toward some legitimate end.

The questions loom very large indeed as to how this all will unfold, these thirty plus years since Pol Pot and his henchman claimed their military and ideological victory over the Khmer Republic and began their reign of terror over the peoples of Kampuchea. This reign of terror still goes on in many ways in the hearts, minds and souls of millions and continues to cast its sick shadow over the developing Kingdom of Cambodia as it struggles and strives to find its place in the larger geo-political and economic transformation of Asia that has us all looking to the east, often with wonder and awe.