The first Asian experiment with internationally sponsored national justice is underway in Cambodia.
In the next few months, trial hearings will begin in this long-delayed legal process, which attempts to mix the best of international law practice with the under-developed Cambodian legal system.
The tribunal has been set up along similar lines to those of the UN tribunals in Rwanda and the Balkans. There is no doubt that other East Asian states are looking at this process and asking themselves whether this grand experiment in collective justice is a good idea or not.
Cambodia is not alone in having bodies recently buried in their backyard. Indonesia, the Philippines, and Thailand — countries that have carried out brutal campaigns against insurgencies and civilian populations — will be paying attention. At the same time, they are also involved in ASEAN efforts to integrate Cambodia into the group.
There are a number of ways to view the current international trial of Khmer Rouge leaders. The first view would see the tribunal as a people’s quest for justice led by local civil society, supported by local and international NGOs. Individual communities, villages and individuals are seeking some form of closure for the Communist attempt to re-define a country over the dead bodies of those unfortunate not to be seen as "revolutionary enough".
A second view would see the UN tribunal as a nationally driven exercise, led by the Government, in which a selection of surviving Khmer Rouge leaders is being used symbolically to promote a sense of justice being served. Through it, the country may hope to finally erase the collective guilt and international stigma it has borne since 1979.
The last, most cynical view, would be to see the process as being imposed primarily by the international community, with only partial and reluctant compliance from the Cambodian Government. In this view, the process is given only reluctant (and partial) support by a Government more concerned with the annual US$600 million foreign aid program it relies so heavily upon than with any real thirst for justice.
One sad aspect of the process is that in the 30 years it has taken to set up this tribunal, much of the local momentum for justice has dissipated. Local NGOs like Adhoc and research bodies like the Document Center of Cambodia (DC-Cam) are engaged with the families and are looking to add details to a long list of crimes committed by the Khmer Rouge cadres, but there is also a fair bit of popular scepticism around the exercise. People want justice, but they are unsure whether a series of court decisions can offer it.
Two questions should be asked: where does the push for justice come from; and what form of justice will result from this process? The answer to these questions is not simple. Prime Minister Hun Sen, himself a Khmer Rouge military officer for a few years in the late 1970s, has tried to find a middle way between conducting an open investigation into the past on the one hand, and staging an exercise in targeted culpability on the other.
Because a substantial number of ex-Khmer Rouge cadres, military officers and rank-and-file members are now part of the Cambodian establishment, Hun Sen has been pushing for as limited an investigation as possible. This is, strangely enough, reasonable: "Khmer Rouge" is a blanket term that does not acknowledge differences between East Zone "Red Khmers" and the other members of the Khmer Rouge. Hun Sen and members of the ruling Cambodian Peoples Party (CPP) were from this East Zone and were largely respected by the ordinary people in their area.
The landscape of culpability is complicated further by the sheer numbers of people who can be described as former Khmer Rouge, many of whom have a great deal of influence in Cambodian political and social life.
This may seem expedient, but it is also understandable. To undertake a comprehensive program of investigations and prosecutions would undermine the Government and cause wider disruptions of Cambodian society. And given that much of the country functions through family and patronage politics, a judicial attack on these people widens to involve a significant section of the population, and sets up further social conflict.
There are also questions around the nature of the justice that could be expected from prosecuting as widely as possible. Can there be a just outcome, for example, from the prosecution of Khmer Rouge child soldiers who had been indoctrinated from primary school to believe that non-rural Khmers were "no loss" to the agrarian revolution?
However, there is little doubt that politicians on all sides have mixed justice with expediency. For more than a decade Hun Sen has played with the United Nations’ attempts at beginning a Cambodian "truth and reconciliation process", as is noted in the DC-Cam book, The Khmer Rouge Tribunal by John Ciorciari.
This tribunal, formally known as the Extraordinary Chamber in the Courts of Cambodia (ECCC), was set up in June 2003, after the UN and the leading Cambodian People’s Party (CPP) constructed a court out of heavy compromise. While the court was to be internationally funded, the Cambodian side was allowed to determine who would be brought before the court, which would act using modified Cambodian law. The majority of the judges in the trial and appeal stages would be Cambodian, and the trials would enjoy more international prestige and recognition than previous UN-sponsored trials.
The fact that the inexperienced and often corrupt Cambodian legal system is tasked with deciding the fate of Khmer Rouge members also caused some concern among observers. Such concerns have been amplified recently given that a number of internal UNDP reports have suggested that Cambodian staff have taken financial advantage of an international community that is now locked into a compromised system despite the fact that it bleeds donor funds.
The ECCC has struggled to organise itself over the past 12 months, with international and Cambodian sides wrangling over points of law, demanding the other side compromise first. There is a game of chicken going on: the Cambodians accuse the UN and international community of not understanding or following local laws, while the international contingent accuse the Cambodian side of being more interested in the money.
There have also been conflicts over fees paid by international lawyers to the Cambodian Bar Association, the process by which defendants would be indicted, the translation of documents into French, and even the number of gardeners tending the grounds around the Court buildings. The US$56.3 million budget was meant to last for the three-year term of the ECCC, yet it is almost gone already. Money is slowly lost every day and donors have now been asked to provide ongoing funding.
It is a classic case of justice costing money, especially considering that these financial problems could directly limit the number of Khmer Rouge cadres that are called to account for their actions. As a worst case, there is always the potential for the money to dry up and the ECCC to fold, with all sides pointing at and blaming each other.
The factors working to prevent the success of the tribunal are indeed formidable. However, it is too early to dismiss the possibility that it could still achieve something worthwhile.
A number of the defendants have been identified. Duch, the chief of the notorious S-21 prison, was indicted. His was followed by the indictment of Nuon Chea, also known as "Brother No. 2", the chief ideologue of the KR regime. As well, former Foreign Minister Ieng Sary and his wife, Ieng Thirith, were taken into custody, along with the former Head of State during the Pol Pot era, Khieu Samphan. These are not insignificant achievements in a country that has struggled for so long with corruption, poverty, mass murder and judicial weakness.
The benefits gained from the tribunal over the coming months will largely depend on the capacity of all the participants — the Government, the Cambodian people, and the international contingent — to remain engaged in its proceedings. Coverage of the tribunal’s proceedings over the last few months has been minimal. The global financial crisis and its effects on Cambodia’s two largest employers — the garment and tourist industries — seems to be far more newsworthy.
The desire to focus on the present, the future and their very real difficulties is a natural one. The question Cambodia needs to answer is: can the country move forward if it doesn’t properly address its past?
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