Its Official

The websites for the ECCC and UNAKRT are now officially up and running. The announcement went out in press release on Thursday. The ECCC site appears to be the one were all the good stuff will be, it is certainly the more detailed of the two and promises to have audio and video files of the proceedings. Unfortunately it was down quite a bit over the weekend. The UNAKRT site only deals with the international staff and mandate, but its a nice clean site.

The ECCC site is also in Khmer, and both promise to be in French 'soon'.

Links to both sites are on the menu to the left.

A taste of things to come

A former KR leader now living in the states had a few things to say to Radio Free Asia this weekend about the Tribunal. First that the 'accused' Pol Pot is not the most responsible, and then declaring that he plans to be a witness where he will reveal that two other former KR leaders should be the first to take the stand. He also claims that the notorious Ieng Sary saved the people of Phnom Penh. The court was never going to bring Pol Pot up on changes anyway so that is a moot point- but his description of the 'real' leaders (including the former King!) up to 1976 makes for interesting reading;

Pol Pot is not the main responsible official?

27 Oct 2006
By Mayarith
Radio Free Asia

A former Khmer Rouge (KR) who asks that his position within the KR regime is not revealed yet and who took refuge in the USA, and he is also planning to become a witness during the KR trial, declared that the main responsible person for the genocide during the KR regime is not the accused Pol Pot.

Sieng Sak, a close confidant of the former KR leader, who currently lives in Lowell, Massachusetts, and who entered Phnom Penh for the first time on 17 April 1975, is accusing two personalities as the responsible persons [in the genocide]: Former Cambodian Monarch Norodom Sihanouk and Khieu Samphan.

....He said that between 1975 and the beginning of April 1976, the Democratic Kampuchea (DK) regime was not yet formed. During that period, it was still the under GRUNC (French acronym for “Gouvernement Royal d’Union National du Cambodge,” Royal Government of the National Union of Cambodia) regime with Samdech Sihanouk as its leader.

Sieng Sak said: “One share of responsibility must go first to Samdech Sihanouk [for the period] between 17 April 1975 and 2 April 1976. Next, Khieu Samphan must bear the responsibility for the period between 3 April 1976 and 6 January 1979. On 17 April [1975], we worked and I worked with Samdech Sihanouk, and we already obtained the proof that they were the days he is responsible for.”

....Sieng Sak, the former KR chief, indicated that soon after the occupation of Phnom Penh by the KR, the mass killing started on 20-21-23 April following the trick announce made on 20 April 1975 asking the population to evacuate from Phnom Penh, the announce also asked that those who hold the rank of second lieutenant and up are invited to return to Phnom Penh to receive Samdech Sihanouk. They were in fact killed near Tuol Kok, they were stabbed and dumped into wells.

Sieng Sak recounted: “On 20 [April 1975] they were called to return back, and on 21-22-23 [April], those who hold a rank of second-lieutenant and lieutenant were killed, the killing did not stop until the 24th. We must ask why the killing was stopped? It was because Ieng Sary prevented it, if it were not for Ieng Sary stopping it on time, everybody in Phnom Penh will be killed, the killing would last 3 days. The majority of them were led to their killings in the evening, they were killed in Tuol Kok … they were smashed and dumped into a well, they were not shot.”

Sieng Sak also said that the responsibility of the killing rest on Samdech Sihanouk because the DK was not announced until 3 April 1976, following the return of Samdech Sihanouk from the UN and he handed the power over to the KR leaders to take over.”......

In response, the Tribunal spokesperson stuck to the standard line. The investigation is still underway, no one has been charged and they don't know who will be called as witnesses. Hard to believe the Defense has not picked up on this however, and may be making plans to spring for a flight for this potential witness if and when Ieng Sary has to face a judge. That would make for an interesting few days in the court.

Revenge of the Lunch

I posted a silly little story from the Gecko a while ago about how they were having some problems with the cafeteria at the ECCC. Well the Posts' major competitor was not content to let the Post scoop them, so today they made the issue a front page story!

Lunch Is Served Before Justice at Tribunal Office

By Erika Kinetz
THE CAMBODIA DAILY

Ang snuol district, Kandal province - The trial judges who will sit on the Khmer Rouge tribunal have yet to move into their offices at the Extraordinary Chambers in the Courts of Cambodia's headquarters, but the buildings are filling up fast.

Powerpoint presentations roll slowly on behind closed doors, and villagers from across the country come for lectures in the wilting auditorium, hoping to learn just what this late promise of justice might mean.

The co-prosecutors and co-investigating judges, who moved in early last month, continue their quiet work at opposite ends of a long hallway. The first indication of who may be indicted by the tribunal could come before the end of the year, said tribunal spokesman Reach Sambath.

In the meantime, the big issue is lunch.

Working across three languages to ensure justice is hard enough, but it turns out that figuring out what everyone at the ECCC likes to eat is no easy matter, either.

The Shop, a cafe on Phnom Penh's Street 240 popular with expatriates that was recruited in February to provide catering services to the ECCC, was temporarily replaced in late September by Pkay Preak, a Khmer catering service.

Many Khmer staffers never ate food from The Shop, preferring to head to a nearby gas station or undertake the modest drive to Phnom Penh International Airport for lunch.

"It was fine for our foreign friends," Reach Sambath said of The Shop and its lunchtime fare.

But, he added, "Cambodians cannot eat it." Ask them to subsist on goat cheese salads, he said, and "the Khmer staff will die in two days. The Shop is good, but not for everybody."

In August, the majority Cambodian contingent of the ECCC convened a working group to discuss the matter of lunch.

Griet Lorre, a Belgian national who opened The Shop five years ago, said she knew Cambodians weren't crazy about her lasagna and shepherd's pie, but that she offered a hot Asian dish every day too. Most cost less than $2.50.

The real problem, she added, was the lack of a kitchen.

To make fresh Khmer food, I needed a kitchen," she said. Lunch orders at the ECCC had to be placed by 10 am so the food could be prepared in the catering kitchen Lorre leases at the Northbridge International School and delivered to the Kandal province court headquarters by lunchtime.

Lorre said she pulled out of the Khmer Rouge tribunal because she didn’t like the terms of a catering agreement the ECCC presented to her in late September. She said she would have had to construct a building for the kitchen, pay rent allow other caterers to use the facility, and charge low prices.

Pkay Preak was then hired on an emergency, temporary basis. But now the international contingent at the ECCC is getting indigestion.

"The offering of frog and tripe in one sitting last week is an example," Peter Foster, the public affairs officer at the tribunal, wrote in an e-mail.

Lest anyone go hungry, Sean Visoth, the administrative director of the ECCC, convened a bilateral catering committee earlier this month, which will soon open a bidding process to select a new caterer by January, Foster wrote.

Meanwhile, on Tuesday, lines of people moved down a $2 buffet in the light-filled canteen of the ECCC, piling on rice, curry, and sour soup. There has, however, been one concession made to the court's foreign friends: French bread.

"We'll find a solution that works for everyone," Reach Sambath said. "We are here not to fight about food," he added. "We are here to find justice. This is a small matter."

A small matter indeed. Is this really the only thing that the Daily can come up with to write about the court? And is it really front page news??? You have to wonder who is in charge of that paper sometimes.....

Playing Defence

World Politics Watch has a nice little piece profiling one of the researchers working with the Prosecution. The full article can be found here: (http://www.worldpoliticswatch.com/article.aspx?id=292)

The story of the researcher is interesting, but there are also some choice bits about the Tribunal that are worth highlighting;

"Potential defense lawyers, seeking to make names for themselves, are already conducting forays into Cambodia and preparing an initial strategy based on attacking the validity of the evidence and the legality of the court itself, as well as seeking to throw doubt on reports that genocide occurred."

A strong defence will be a shock to the average Cambodian. The backlash against the Tribunal when it 'allows' defence arguments will be tough to manage. There is apparently no shortage of challenges that could be raised;

"Unlike the physical evidence produced at the Rwanda, Sierra Leone and former Yugoslavia war crimes tribunals, the remains that lie in the 20,000 uncovered mass graves that dot Cambodia's picturesque landscape have been exposed to decades of human intervention and erosion by violent tropical storms.

Grave robbers seeking gold teeth and valuables stashed on body parts and in clothes of the dead have also taken a toll. The pillaging has not helped the prosecution's case.

This contamination of evidence is expected to underpin the defense case and could prove pivotal as to whether the defiant Khieu Samphan, Nuon Chea, Ieng Sary and his wife, Ieng Thirith, live out their twilight years as free citizens or as felons behind bars."

This story is from months ago, before the Tribunal was up and running, and before the subject of the piece was employed by the ECCC- but the problems have not gone away with time.

Questioning a Pardon

During the trials in 1996 the Cambodian government issued a few free passes to the KR leadership. At the time it was the only way they saw to get the KR military leaders out of the jungle and stop the violence. Creating stability was more important than justice back then. But that was then and this is now. With the Tribunal now looking like it will actually happen people are beginning to question the pardons.

The question was put to the Tribunal's spokesperson again in this AP story:

October 26, 2006
Official: Former Khmer Rouge foreign minister not immune from prosecution
The Associated Press

PHNOM PENH, Cambodia A spokesman for a special Cambodian genocide tribunal said Thursday that a decade-old royal pardon does not guarantee full immunity from prosecution for Ieng Sary, the former Khmer Rouge foreign minister.

Ieng Sary, 76, received in 1996 a royal pardon from former King Norodom Sihanouk in exchange for leading a mass surrender of Khmer Rouge guerillas to the government. The pardon was granted at the request of the government, grateful to have thousands of Khmer Rouge guerrillas cease their struggle.

"He is saved by the pardon from (only) one crime — genocide. You can get away with one crime but not (with) every crime that you have committed," said Reach Sambath, a spokesman for a joint Cambodia-United Nations tribunal officially called the Extraordinary Chambers in the Courts of Cambodia.

The pardon effectively nullified a conviction for genocide handed down against Ieng Sary by a special tribunal in 1979. Some observers have said that the trial was essentially a political show trial held by a communist regime installed by Vietnam after Hanoi's troops ousted the Khmer Rouge from power.

Reach Sambath made his comments as prosecutors build their cases for prosecuting surviving Khmer Rouge leaders responsible for the deaths of nearly 2 million people during their 1975-79 period in power.

He added, however, that it will be up to prosecutors and judges to decide on the exact charges and who to indict.

Reach Sambath said Cambodian and U.N.-appointed prosecutors are expected to hand over preliminary results of their investigations to the mixed group of Cambodian and foreign judges before the end of the year.

The judges will then act on the prosecutors' work, he said, adding that indictments could be announced early next year.

The spokesman was clarifying an answer to a question about the pardon that appeared in the frequently-asked-questions section of the tribunal's official Web site, launched Thursday.

"It will be up to the judges to decide on the scope of this pardon" for Ieng Sary, the answer read. "Even if he cannot be retried for genocide, there may be other charges that could be brought against him on the evidence available."

Ieng Sary, as one of the Khmer Rouge's inner circle, has been considered a potential candidate for trial, but many people feared he might escape justice due to the pardon.

Reach Sambath said many people have asked questions about Ieng Sary in various public forums held to raise awareness about the purpose of the Khmer Rouge tribunal.

"They try to get a clear message from us. They want to know whether if you've got amnesty for one crime, you cannot be tried for another crime," he said.

So the pardon may hold for genocide, but he can be charged anyway with anything from Murder to criminal conspiracy to who knows what. This is not new information, it has been in the "Introduction to the Khmer Rouge Trials" booklet for months, but this story will likely get front page coverage here. The question now is what happens when Sary reads this and decides he might want to consider moving to a friendlier climate with a more like minded leadership. Zimbabwe maybe?

The King points fingers

The political situation in Cambodia continues in its roller coaster. FUNCIPEC is self-destructing and no party other than the CPP is in any shape to govern at this point. But that has not stopped other high profile figures from trying. The latest attempt to form a party by Prince Norodom Ranariddh drew some citicism from those who argued that with no funds or resources or support it was not a serious party. He responded noting that the Khmer Rouge had nothing when they started and ended up in control of the county. Ignoring the ill-advised comparison to the Khmer Rouge, the King Father, Norodom Sihanouk, decided to respond in a published letter which noted the following;

1. The Khmer Rouge were very rich. The P.R. of China (PRC) gave them a lot of money.
2. The Khmer Rouge had enormous amount of US dollars with which they (K. Rouge) could buy from the Khmer Lonnolian-Republicans, guns, ammunitions, medicines, etcÂ…
3. The Khmer Rouge had cadres and leaders who master martial art, the warlike “science" and “technique.” They acquired this “science” and this “technique” through the PRC and the S.R. of Vietnam. The latter transported for them (K. Rouge), through the Ho Chi Minh trail, without interruption, weapons, ammunitions, etcÂ… which were offered by the PRC.
   

Will the King Father be a witness at the KRT? Because with this letter he points a finger at China, the US and Vietnam as the primary backers of the Khmer Rouge. The KRT has no jurisdiction to put other nations on trial, but its going to be hard to keep them out of the testimony.

The German Ambassador

KhIf any country has a right to weigh in on a genocide tribunal it has to be Germany, and in a featured interview with the Phnom Penh Post this weekend the German Ambassador, Pius Fischer, gives his view on the KRT. Some highlights from the interview;

...Considering Germany's recent history, does your nation have special lessons to impart to Cambodia, especially with regard to the Khmer Rouge Trial (KRT)?

The situation in Germany after World War II was very different from the situation in Cambodia following the removal of the Khmer Rouge regime. It is not our endeavor to teach any particular lessons, but we do have experiences that the [KRT] could benefit from. It is not just coincidence that we are one of the major donors to the KRT. We think it is very important for the Cambodian population to understand why this happened, who was responsible for it. Only if we understand history can we avoid making the same mistakes again in the future.

What do you hope to see come from the KRT?

First, we anticipate it having a cathartic effect. The population will learn about this part of Cambodian history, which, as I understand it, doesn't play a particularly important role in Cambodia's history books so far. Second, we hope it will send a message that there is no impunity even for those in the highest positions of political power. Finally, we hope that the trial will bring late redemption to the victims of genocide. We must not forget that over 1.7 million people, which was at the time more than a quarter of the Cambodian population, died at the hands of this murderous regime. In Germany we have had to deal with war crimes trials - not just the Nuremberg Trials but a whole series of criminal trials right up until today against former Nazi war criminals. Democratization in post-conflict Germany was a full success. We do hope that similar developments will take place in Cambodia and in our limited means we try to assist Cambodia on this path....

Phnom Penh Post, Issue 15 / 21, October 20 - November 2, 2006

Education, Justice, Resolution. Those appear to be pretty good goals for the Court, though his hope that this will lead to the Democratization of Cambodia may be a bit ambitious.

The Gecko

The Phnom Penh Post publishes a little column called the Gecko every two weeks. It is full of rumour and scandal (though not as much as it used to). This week it highlights the developments in the important 'cafeteria issue' at the Court. Apparently The Shop has been unceremoniously removed, leaving the facility, which is located 10 miles out of town, without any food or drink services.

This may explain the reports from the Phnom Penh airport, where apparently since the beginning of the month two or three busloads of staff arrive each day to get lunch. No Cambodians in the group however, they must be bringing their own food to work?

If you are planning to go out to the court I guess it would be wise to eat before you go and bring some water with you. Might even be good idea to call ahead and see if they need any extra water and food delivered. 56 million and no cafeteria. I know the ECCC is not a rich court, but you would think at least food and water would have been a part of the plan.

Speak of the web

There suddenly seems to be two sites on the trials.

www.eccc.gov.kh and www.unakrt-online.org are both working.

Not sure if these are just test sites or the real thing since there hasn't been any announcement. But good to see something happening on the web.

Fear or Confusion?

DC Cam seems to have a bit of an identity crisis. One day they are on the front page of the local press handing over all thier information for the use of the court, the next day they are running thier own judical police training where group of hopefuls tramp around over the killing fields contaminating evidence. Today they were backing a report that claims there is a growing fear from the population about giving evidence to the ECCC. Careful reading of the story in Cambodia Daily however seems to be more about confusion than fear- and of course in order to do the report at all quite a few people must have been happy to talk to authors. Its also not clear from the report how long ago these interviews were made.

Still the reponses from the ECCC offical, Peter Foster, are a little light. The person responsible for witness protection will not be here for weeks, yet 'all appropriate percautions are being made' for the interviews... hard to know what that actually means. Perhaps it they can not reveal the detials of what they are doing. But Foster has it right in his last quote when he notes that after all the delays many still have are hard time believing the trial will even take place.

Potential Tribunal Witnesses Fear Testifying: Study

Tuesday, October 17, 2006 By Erika Kinetz
THE CAMBODIA DAILY

A new study by the Documentation Center of Cambodia suggests that fear, limited information, and lack of a clear witness protection program have started to quiet voices that could potentially testify to the horrors wrought by the 1975-1979 Democratic Kampuchea regime.

DC-Cam Director Youk Chhang said that survivors once associated with the Khmer Rouge are beginning to ask some sensitive questions: "What’s in it for me? Will I be given amnesty? Will my name be cleared?"

And victims of the regime have begun to wonder what will keep them safe if and when they are asked to speak up at the trial of the surviving leaders of the Khmer Rouge.

You can sense the fear," Youk Chhang said. "You can sense there has been a shift of thinking."

Investigators from the prosecutor's office of the Extraordinary Chambers in the Courts of Cambodia have already begun to interview witnesses and gather information from the field, but the tribunal's witness protection program is not yet fully functional.

There is a budget for a witness protection officer, but the actual officer is not expected to arrive for another two weeks, said Peter Foster, the ECCC's public affairs officer. The protection of potential witnesses outside the court is the responsibility of Cambodian authorities, he added.

Nonetheless, ECCC co-prosecutors carefully consider the security needs for each interview on a case-by-case basis and all appropriate security precautions are being taken, Foster said. "People should have confidence that they can tell their story without fear," he wrote. And, he added, "So far the ECCC investigators have been able to interview many witnesses, all of whom have spoken to the prosecutors voluntarily."

Though there are no uniform procedures for witness protection, safe houses, identity protection, and other measures are being considered.

But the lack of clarity and the fact that witnesses are being asked to testify before a formal protection program is up and running has some rights groups worried.

"They put people in a very dangerous situation by interviewing people without an effective program of protection," said Kek Galabru, founder of local rights group Licadho.

Geerteke Jansen, a legal associate at DC-Cam, spent the last three months talking with people in Takeo province: victims, former Khmer Rouge cadre, the ordinary villagers referred to as "base" people during the regime, combatants, judges, prosecutors and government officials among them.

Twenty of the 30 villagers Jansen spoke with said that they were willing to testify at a Khmer Rouge tribunal. Complicating the situation, however, is the fact that, in some cases, former Khmer Rouge inmates live opposite former prison guards, and former cadre live cheek by jowl with victims.

'They don't know what to expect if they talk about the involvement of their neighbors," she said. "What will be the consequences?"

Those that are afraid to testify, Jansen said, are afraid of retribution, wreaked not just by their neighbors but also, possibly, by the families of the highest-ranking Khmer Rouge leaders who will stand trial.

One man who said he would not testify explained that it was against his Buddhist beliefs, which he felt exhorted him to live in peace with his neighbors and simply accept the past.

Others, Jansen said, were too shy or uneducated to reckon with the big, abstract work of justice for the crimes of the Khmer Rouge.

"They are afraid to talk. They don't know what to expect," she said.

And that may be the root of the problem.

From what the ECCC has seen during its outreach activities, Cambodians have many different expectations about the tribunal, Foster wrote. "After so many false starts in the past, I am sure that some people are even unsure if trials will actually take place," he wrote. However, the more people learn about the ECCC the more their confidence will grow in the process, he said.

Land of the Missing

There are a couple of links to the left of this blog. But strangely none of them are to the Website for the ECCC. The first is a link to the Cambodian Government's website from something called the Khmer Rouge Task Force (which is no longer in operation) and the other is a strange page from the UN giving no currnet information and advertizing for judge positions that were filled months ago. So what's up? The ECCC has been in operation since February and still has no website?

Speaking of missing things has anyone seen an ECCC car or bus anywhere in town? There were a few at the confernce in Kratie, but in Phnom Penh you never see anything at all. I met with one of the international staff memebers a few weeks ago and he arrived in an old suzuki sidekick. Even stranger, I have heard from some folks to that work near there, that the bulk of the staff arrive to the office each morning in purple Cambodian 'tourist' buses. The UN assistance didn't include cars? A message to the UN from Hen Sen maybe? Or has someone in the ECCC missed the class on how to establish your image. I remember reading that Germany had donated the cars for the court, so it might be interesting to go out to the ECCC site and see if they have a parking lot full of cars collecting dust.

Lets hope they are not useing government 'tourist' buses to interview witnesses.

Spokesperson for the Ghosts

A very nice piece on the ECCC spokesperson in Asian Sentinel. A few other bloggers have reprinted it as well, but its worth spreading it around. Mr. Reach would appear to be the ideal person to be representing the public face of the court. Some choice quotes;

A respected journalist with a master’s degree from Columbia University and a career as a university lecturer and reporter in Cambodia with Agence-France Presse behind him, Reach Sambath has suffered as much as anyone from the Khmer Rouge. He is a persuasive spokesman for a tribunal many criticize as being too little, too late and too political to accomplish much of anything. “I am a spokesperson for ghosts,” he explains as we sit in the bar of the elegant Raffles Le Royale Hotel in Phnom Penh. “I am surrounded by ghosts and if I don’t do good they will know.”

They are searching only for senior leaders, not the thousands of lower-ranking cadres who slaughtered, tortured and starved as many as 2 million people on orders from Pol Pot, who died in 1998, and other leaders. The likely suspects—among them Khmer Rouge Foreign Minister Ieng Sary, President Khieu Samphan and “Brother Number Two” Nuon Chea—have been living free in Cambodia for many years. Only “Comrade Duch,” the chief interrogator at Tuol Seng prison in Phnom Penh where thousands died, is under arrest, having confessed to his role after a foreign journalist found him in 1999.

Trying the few ageing despots, Reach Sambath says calmly, will be enough. It has to be. “Things here now are much better now because we have peace and stability,” he says. Cambodia is becoming normal and the last thing left is to deal with the past. That is the job of the tribunal. All of this is still inside the minds of our people,” he says. But it is time, he believes, for the ghosts to sleep.

In the French Press

The arrival of the International Co-Prosecutor, the French Judge Marcel LeMonde (no relation to the paper), seems to have significanly raised the profile of the Extraordinary Chambers in the French press. A few interviews have appeared, but also some very good in-depth reporting. Below is the text from one of a few features in LeMonde Diplomatique to come out this week:

Cambodia: Khmer Rouge in court

Almost three decades after the fall of the Khmer Rouge, a UN-sponsored tribunal has been set up in Cambodia to prosecute the leaders responsible for genocide. Yet non-Cambodians who share responsibility for the deaths will not be indicted.

By Raoul-Marc Jennar

VIETNAM invaded Cambodia (which the Khmer Rouge had renamed Democratic Kampuchea) in December 1978, after three years of Khmer Rouge attacks on its territory. The world then discovered the mass crimes of the Pol Pot regime (1). The United Nations, the United States, China and their allies responded by jointly condemning a change of regime brought about by foreign intervention: the Cambodians had committed the crime of being liberated from a barbaric regime by an ally of the Soviet Union.

The new People’s Republic of Kampuchea (PRK) was not recognised, and the Khmer Rouge’s ambassador, Thiounn Prasith, continued to occupy Cambodia’s seat at the UN for another 10 years while, inside the country, the Khmer Rouge massacred the population in areas still under their control.

The US classified the Khmer Rouge leaders as “non-communist personalities” (2) to be supported in their struggle against Vietnamese occupation; China and the West rebuilt Pol Pot’s army in Thailand.

In 1979 the UN Commission on Human Rights refused to consider a report containing 995 pages of testimony on mass violations of basic rights in Kampuchea. For 10 more years the UN rejected all efforts by the PRK, by survivors such as Dith Pran (3) and by human rights activists such as David Hawk, to bring the Khmer Rouge leaders to justice.

Peace negotiations began in 1989. Because of the desire to involve the Khmer Rouge (which led to the failure of the UN’s attempt to pacify Cambodia), the crimes of the Pol Pot regime were passed over. The terms “crimes against humanity” and “genocide” were banned from all official documents. The Paris Accords of 1991 employed the phrase “policies and practices of the past” to denote what was in fact the extermination of nearly a third of the Cambodian population.

A trial is a necessity for the survivors now demanding justice: the crimes in question have never been tried by a neutral and impartial court. The resulting impunity is intolerable. How can there be justice in ordinary affairs when the greatest criminals go free? The field is wide open for revisionists of all shades. What the absence of justice can lead to became clear in 2004 when the head of one of the three parties represented in Cambodia’s National Assembly congratulated the Khmer Rouge movement on “its action over the last 30 years”.

Kampuchea was in fact tried by a “revolutionary people’s court” in 1979, in the person of two of its leaders, Pol Pot and Ieng Sary, the deputy prime minister and minister of foreign affairs. Both were sentenced to death in absentia. But that trial, which gave many survivors an opportunity to testify, is tainted in the collective memory of the Cambodian people by the fact that it was held under Vietnamese influence. Until the movement’s demise in 1998, the Khmer Rouge continued to claim that the massacres perpetrated by the Pol Pot regime had been carried out by the Vietnamese. That claim still provides a satisfactory explanation for the young in a country where 51% of the population is under 18.

A step forward

It is a positive development that the trial, finally decided on by the Cambodian government and the UN in 2003 and scheduled to begin in 2007, will be held in Cambodia and in the Khmer language.

In a letter of June 1977 to the UN secretary general, the Cambodian authorities requested “the assistance of the UN and the international community in bringing to justice those responsible for genocide and crimes against humanity during the period of Democratic Kampuchea”, with the aim of “establishing the truth” and “trying those responsible”. The UN General Assembly acceded to that request at the end of the year. But it took seven years of negotiations to overcome the difficulties.

The UN proposed an international tribunal but Cambodia wanted a Cambodian court assisted by foreign judges and advisers. In response, the UN demanded compliance with international judicial standards, guarantees of the arrest of suspects identified by the court and the involvement of international judges at all stages of the proceedings. The problem was that all Cambodian judges are both judge and party to the case, since they are all survivors of the Pol Pot regime and relatives of its victims. The Cambodian judiciary, rebuilt after 1979, has obviously not yet achieved a satisfactory level of competence and independence.

A law passed in 2001 was amended in 2004 to make the proceedings of the “extraordinary chambers in the courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea” acceptable to the UN. All indictments will be the joint responsibility of a Cambodian prosecutor and a foreign prosecutor proposed by the UN, each assisted by an investigating magistrate of the same nationality. The trial court will have three Cambodian and two foreign judges, and its decisions will require the affirmative vote of four judges. The Supreme Court will have four Cambodian and three foreign judges, and its decisions will require five affirmative votes. So the agreement of a foreign judge will be required in all cases.

It took two more years for the UN and the Cambodian government to raise the $56m budget, and for the judges (17 Cambodian and eight foreign) to take up their duties. Suspects will be prosecuted for breaches of Cambodian criminal law in force in 1975, international law on human rights, and international conventions ratified by Cambodia. The court will also be competent to try crimes of genocide, crimes against humanity, war crimes and violations of the Geneva Conventions on which international human rights law is based. It can also try breaches of the Hague Convention on the protection of cultural property.

Genocide contested

Some people dispute that genocide happened. Yet the use of that term seems unquestionably justified in the case of the extermination of nearly 40% of the Muslim population, the Cham, for no other reason than that they were Cham. It also seems justified in the case of the thousands executed for not having “a Khmer soul in a Khmer body”, meaning people of Thai-Khmer or Sino-Khmer parentage, and especially Vietnamese-Khmer people who were suspected of sympathising with Vietnam.

Members of Pol Pot’s government, of the leadership of the Communist Party of Kampuchea (Angkar, “the organisation”), of the security forces (Santebal, the political police) and of the S-21 torture and execution centre are still alive. These include Khieu Samphan, head of state; Nuon Chea, known as Brother Number Two, who was Pol Pot’s closest associate, the head of Angkar and the regime’s second-in-command; Ieng Sary, who was the deputy prime minister; Khieu Thirith, who was Ieng Sary’s wife, Pol Pot’s sister-in-law, a minister and member of the central committee; Thiounn Mumm, a minister; Keat Chhon, another minister (4); and Thiounn Prasith, who was ambassador to the UN and the man who knows most about the US role in supporting the Khmer Rouge from 1979 to 1990. Kang Kek Ieu, alias “Duch”, the head of Centre S-21, is also still alive; as are Sou Met and Meah Mut, the commanders of the air force and the navy. Except for Thiounn Prasith, who appears to be under US protection, all are currently living in Cambodia.

But will they all be investigated with a view to indictment? Doubts arise because of the nature of the pacification process from the departure of the UN in 1993 to the surrender of the last Khmer Rouge stronghold in 1998. Ieng Sary went over to the government side in 1996 and was granted a royal amnesty for his 1979 conviction. Khieu Samphan and Nuon Chea gave themselves up at the end of 1998. Sou Met and Meah Mut have joined the Cambodian armed forces. Only Duch is in prison. The number and status of those who are prosecuted will be a major indication of the trial’s credibility.

Another question is whether the investigating prosecutors will ask for Angkar, the regime’s supreme administrative organisation, in whose name the massacres were carried out, and Santebal, the political police, to be declared criminal organisations. Or for the standing committee of the Communist Party of Democratic Kampuchea, which decided on and planned the massacres, to be declared such an organisation. If so, it will be possible to indict any person on the grounds that he was a member of one of those organisations 27 years before the trial investigation began this July.

Pol Pot, Son Sen, the minister of defence and the man in charge of Santebal; Yun Yat, a minister; Thiounn Thieunn, a minister; Ta Mok, a military commander; and Ke Pauk, who was Ta Mok’s second-in-command, have all died, having enjoyed the protection of the international community from 1979 to 1993. Son Sen was a member of the supreme national council established by the Paris Accords of 1991 and the designated embodiment of national sovereignty during the transition period.

The US accepted the principle of a trial on condition that the court’s jurisdiction be confined to crimes committed in Cambodia during the period 17 April 1975 to 6 January 1979. Foreigners who share responsibility for the tragedy before and after the period of Democratic Kampuchea will not be indicted. No Thai civil or military leader will stand trial, although Thailand constantly interfered in Cambodian affairs from 1953 onwards, spared no effort to destabilise the neutral Cambodian regime before 1970 and served as a rear base for Pol Pot’s army from 1979 to 1998.

Singapore was the hub for supplies to Pol Pot’s army after 1979, but its leaders will not be brought to book. Nor will the European governments, led by Britain, that supplied arms and munitions to the Khmer Rouge from 1979 to 1991. Nor Henry Kissinger, for his responsibility in illegal bombings from March 1969 to May 1970, the coup of 18 March 1970 that overthrew Sihanouk, and the invasion of Cambodia in April 1970. Nor US President Jimmy Carter and his national security advisor Zbigniew Brzezinski, who in 1979 chose to condemn the liberation of Cambodia by Vietnam, impose a total embargo on Cambodia and support the rebuilding and supply of Pol Pot’s army (5). That preference remained the choice of the Reagan and Bush (Sr) administrations until 1990.

The Price of Justice

For Cambodia that price is 56 million dollars. Too much? Sure seems like it for the folks riding water buffaloes into work and spending less than a dollar a day to get by. But that is not really a fair comparison. How much does a trial like this cost normally? Is Cambodia getting good value here, or is this really just a money pit. Well it turns out that 56 million is actually pretty skint for international justice.

The Hariri trial in Lebanon, another Hybrid court, has a budget of about 44 million dollars. (at least according to statements from the potential prosecutors) That is 44 million to hold a trial for the death of one person. In Sierra Leone the budget has been set at 104 million over 4 years, while the court in the Hague is spending 100 million each year. This from a report in the American Society for International Law :

The cost of the Special Court is estimated at U.S. $22 million for its first year of operation, compared to the ICTY and ICTR whose annual budgets each exceed $90 million. This estimated cost does not, however, include funding for detention facilities, investigations, translators, or defense counsel. (10) While Security Council Resolution 1315 had suggested the mechanism of voluntary contributions to fund the Special Court, the Secretary-General has opted instead for assessed contributions from U.N. member states (in which case the United States will be assessed twenty-five percent of the costs) on the grounds that "voluntary contributions will not provide the assured and continuous source of funding which would be required to appoint the judges, the Prosecutor and the Registrar, to contract the services of all administrative and support staff and to purchase the necessary equipment." (11)

Yet most of the recent press here has been quick to call the Khmer Rouge Trials the next coming of UNTAC. Seems like a report just released from Open Society Justice initiative has a slightly opposing view:

Funding woes hindering KR tribunal:

PHNOM PENH, Cambodia (AFP) - Cambodia needs at least double the money currently budgeted to try former Khmer Rouge leaders, a prominent legal organization has said, warning that the "unrealistically thin" funding was already hurting the tribunal's work.

So far 56.3-million-dollars has been requested for the long-awaited tribunal, but Cambodia and the United Nations have yet to secure even that amount, with the tribunal facing a shortfall of several million dollars.

However, the Open Society Justice Initiative (OSJI), a legal reform group which monitors the tribunal, said that even if fully funded, tribunal staff will be forced "to make decisions based solely, or predominantly, on financial considerations".

Condemned for being a money pit one day and woefully underfunded the next. The true cost of Justice remains a mystery.

A Few Words from the Prosecution

Last week an local NGO sponsored a forum in the northern Cambodian town of Kratie. It was notable because it included presentations not only from the usual crew of NGOs (how many times can we hear DC CAM talk?) but also had both the Extraordinary Chambers Prosecutors present.

The forum opened with a film showing how the entire Khmer Rouge regime was the fault of the US (ok maybe that was not the point of the film, but that message sure was in it) and then provided lots of history about those years. The question and answer session was particularly interesting with the Canadian Co-Prosecutor Robert Petit, giving the audience some nice ideas to think about- I am paraphrasing here but;

“Justice without the rule of law is worthless”

“There can be no progress in any society without justice. Money spent to achieve it is a valuable investment in a nations future.”

“People commit genocide for the same reason they steal a cow, because they believe they will not be punished”

“People kill for power, and once in power they kill to keep it.”

“There can be no reconciliation without justice.”

It was pretty good stuff.

The court must be concered over the reports that came out later however. Apparently many of the guests thought the trial would be taking place that day. Others knew nothing about the Khmer Rouge other than they grew a lot of potatoes, and were mystifed about the need for a tribunal at all. The story according to Cambodia Daily;

Grievances Air at Khmer Rouge Tribunal Forum

By socheata

Monday, October 2, 2006

By Erik Wasson and Prak Chan Thul
THE CAMBODIA DAILY

Several villagers said they wanted the tribunal to target local officials who had killed their neighbors. Others said they wanted the death penalty for those convicted, and that they also hoped the tribunal would investigate high-profile political killings in more recent years.

Kratie Town - Again and again in hurried and sometimes passionate voices, villagers stood up to ask the Khmer Rouge tribunal's co-prosecutors a succession of basic questions that had no simple answers.

Why did Khmers kill Khmers? Why did people support them? Did their leaders learn to kill while in France? Why didn't the UN help Cambodia during the regime? Why is the trial being held? Why don't we just forget about what happened and move on?

Khmer Rouge tribunal co-prosecutors Robert Petit and Chea Leang did their best to answer the questions of more than 100 villagers from Kratie, Mondolkiri, Ratanakkiri and Stung Treng provinces.

By the time Petit and Chea Leang had finished and a short documentary about the Khmer Rouge had been shown at the hotel where the Center for Social Development forum was held Thursday, villagers said many questions remained unanswered.

They added that prior to the public forum, they had known very little about how the tribunal would operate or, apparently, about the Khmer Rouge regime.

"I don't know anything about the Khmer Rouge...this is the first time I saw a film like that," said Kratie villager Pen Met, 68.

"I didn't know that they killed people. I just knew that they worked hard to grow potatoes."

Phoek Thy, 30, a member of the ethnic Phnong minority from Mondolkiri province, said he was surprised that no one had actually stood trial at the forum.

"I thought there would be a tribunal today," he said.

Kratie villager Sin Sun, 68, a former Khmer Rouge fighter, said prior to the fall of Phnom Penh in April 1975, he had thought he was fighting for then-Prince Norodom Sihanouk.

Sin Sun asked the co-prosecutors if they could explain to him the political indoctrination he received when he was fighting with the Khmer Rouge.

"Why did they train me to sing [political songs]? Please explain their policies," he said, adding that he also wanted to know why six members of his family were killed.

Petit and Chea Leang emphasized that surviving Khmer Rouge leaders, not low-level officials or countries such as China or the US, will be subject to the tribunal law.

Petit also attempted to address why the Khmer Rouge were so brutal

"For whatever ideological reasons they believe in, they kill huge numbers of people to get and remain in power," he said. "In Cambodia this is not as clear as in other places. The system they set up and the policies they followed made it impossible for most people to know why they were being killed."

Asked why the UN did not intervene between 1975 and 1979, Petit responded "That question is best answered by those in power at the time."

Several villagers said they wanted the tribunal to target local officials who had killed their neighbors. Others said they wanted the death penalty for those convicted, and that they also hoped the tribunal would investigate high-profile political killings that have occurred in more recent years.

"The trial would not be done as severely as I want," said retired teacher Tim Ninn, 60, an advocate of the death penalty for the Khmer Rouge leaders.

Tribunal spokesman Reach Sambath said a death sentence would be unconstitutional.

Reach Sambath also said the Extraordinary Chambers in the Courts of Cambodia will finance television publicity spots about the tribunal which are expected to air before the end of the year.

But he added that in remote areas where people cannot access television and radio, direct outreach programs are necessary.

Chea Leang told villagers that the possibility of compensation being paid to victims is being discussed. But she added that even if Khmer Rouge suspects have accumulated extensive wealth since their regime was toppled, only the wealth they gained from 1975-1979 period could be confiscated by the court if they are found guilty.

Dr Sotheara Chhim, a psychiatrist with the Transcultural Psychosocial Organization who attended the forum, said the apparent lack of understanding by villagers about me regime could be psychologically motivated.

"There is a conspiracy of avoidance both at the national and individual level in Cambodia," he said.

"Parents never talk about it so there is little healing and a lot of ignorance about the past."

Suppressing memories of the past will come at a price, he warned.

"You cannot keep avoiding what happened. Part of it will resurface," he said.