The U.N. tribunal that just upheld Khmer Rouge convictions is slow, biased -- and entirely indispensable.
Photo Credit: CHOR SOKOUNTHEA/AFP/Getty Images
In March, I watched as Nuon Chea, “Brother Number Two,” was wheeled into the courtroom of the Khmer Rouge Tribunal in Cambodia. He was momentarily ending an unofficial boycott of the court to contest the testimony I had given earlier as an expert witness based on my long-term anthropological research on the Cambodian genocide. On Nov. 22, the frail 90-year-old sat in his wheelchair as the tribunal’s Supreme Court Chamber rendered the final decision on his guilt, handing down a life sentence.
I almost felt sorry for the enfeebled Nuon Chea, who had to be helped into his seat by two unarmed guards. Then I thought of the millions of Cambodians who suffered and died during the brutal Democratic Kampuchea (DK) era. Nobody, not even Nuon Chea himself, disputes that he worked closely with Pol Pot and served as deputy secretary of the Communist Party of Kampuchea that ran the DK regime from April 17, 1975, to Jan. 6, 1979.
The Khmer Rouge Tribunal that oversaw the verdict is an attempt to find justice for the millions of dead under Pol Pot’s rule. It is also an attempt to set an international precedent. But the tribunal has raised as many questions as it answered. Given how compromised and sluggish the court has proven to be, it’s not yet clear whether Cambodians, and those hoping to pursue historical justice elsewhere in the world, will even find its judgments to be meaningful.
Officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Khmer Rouge Tribunal commenced operation in 2006 to try the surviving Khmer Rouge “senior leaders” and “those most responsible” for violations of international law. Pol Pot died in 1998. Nuon Chea, the second- highest-ranking Khmer Rouge leader, stood trial alongside former Khmer Rouge Head of State Khieu Samphan, who is in his 80s and also in poor health. The two other defendants in the case died before the ECCC Trial Chamber reached its 2014 verdict in the first of their two trials after three long years, convicting them, among other things, of crimes against humanity, including “extermination.”
Some question whether its judgment even matters. The court has been mired in controversy, and its decisions increasingly scrutinized by the media, international civil society, academics, and foreign governments. But this is not entirely surprising. International justice is inherently political, often smacking of victor’s justice and skewed in terms of decisions about who can be tried and for what, when, and where.
This politicization was true of the Nuremberg and Tokyo trials. Adolf Eichmann’s abduction by Mossad agents in Argentina to stand trial in Israel sparked protest. So, too, did his poor representation and the attempts of the Israeli state to use its domestic trial of Eichmann to forge a new national narrative instead of focusing on the overwhelming evidence against him. The ad hoc international tribunals for the former Yugoslavia and Rwanda have not fared much better, mired in complaints about bias, sentencing, and flawed trials. Most recently, several African countries announced they are pulling out of the International Criminal Court due to what they claim is Eurocentrism and neocolonial bias. Russia has joined the exodus.
As the saying goes, international justice sails between the Scylla of politics and the Charybdis of law in the pursuit of truth and justice. The rule of thumb for jurists is as follows: Minimize the taint of politics; stick as close as possible to the shores of law. But they are trapped in a paradoxical position. A trial that adheres too closely to law renders a sterile, procedural justice. Listing toward politics, on the other side, leads to a show trial.
The goal is to pass through this gauntlet, as the ECCC sought to do on Nov. 22, to provide at least a degree of justice and truth about the past. But some say the ECCC was doomed from the start.
The Khmer Rouge Tribunal was established after years of negotiations by a 2003 agreement between the United Nations and Cambodia. As an international “hybrid” tribunal, it was comprised of both Cambodian and U.N.-nominated international judges and prosecutors. The court included checks to prevent the Cambodian side from dominating, including a requirement that decisions receive a “supermajority” that includes at least one international judge. Still, the agreement to create the tribunal ceded enormous influence to the Cambodian government, not known for its judicial independence or commitment to the rule of law. These concerns were amplified by the fact that Prime Minister Hun Sen and other leaders of his Cambodian People’s Party were themselves former Khmer Rouge and might limit the number of investigations and tightly control the proceedings.
These concerns proved prescient. First there was a corruption scandal involving alleged kickbacks on the Cambodian side. Then a drawn-out battle over how many people to try ensued, with the Cambodian government pushing for the trial of just five suspects and the U.N. arguing that the court itself should decide on the numbers.
In 2010, Hun Sen informed U.N. Secretary-General Ban Ki-moon that there would be no further trials. Key Cambodian personnel at the court, including judges, adhered to this government line. The following year they thwarted the efforts of an international investigating judge who sought to pursue additional investigations, stymieing his work at every turn. Defense teams highlighted allegations of political influence even as they called for Hun Sen and other Cambodian government leaders, some themselves former Khmer Rouge, to testify. The officials refused.
Thwarted by this situation and other issues related to political influence and court bias, some defense lawyers quit. Others staged boycotts, including the defense teams for Nuon Chea and Khieu Samphan. Some called the court a “farce.”
So is the Khmer Rouge Tribunal just a sham? Will sticking with it end up discrediting the case for historical and international justice elsewhere?
Some say yes. There have even been calls for the U.N. to pull out of a tribunal that has cost over $250 million. Others reply, “Who cares?” noting that many Cambodians are more concerned with their daily struggles than dry legal proceedings.
Some Cambodians offer a Buddhist perspective, claiming that the Khmer Rouge will suffer the karmic consequences of their actions when they are reborn. Or they invoke a Cambodian adage, “Don’t poke an old wound.”
Yet supporters, such as the international donor “Friends of the ECCC,” point to the successes of the court, which has, amid all the turmoil that surrounds it, stayed the course, increasing historical understanding while delivering a verdict in the first trial of a notorious prison chief and then again in Nuon Chea and Khieu Samphan’s trial.
I pondered these questions before the final decision was announced, just as I had in March as I sat in the witness stand. I had observed the anger of defense lawyers upset by their treatment in the court. Noun Chea had broken his unofficial boycott to complain that the court was not addressing the involvement of foreign powers, including the United States, in the Cambodian violence.
But I had also frequently glanced at the civil parties sitting in the courtroom. Many had been given the opportunity to take the stand and tell their stories in court. Tens of thousands more Cambodians had attended the proceedings, sitting in the 500-seat public gallery.
The gallery was also packed when the ECCC Supreme Court Chamber, which heard the appeal of the Trial Chamber’s verdict, read its final decision on Nov. 22. They upheld the life sentences for Nuon Chea and Khieu Samphan, whom they found guilty of crimes against humanity, among other charges. But they threw out some of the Trial Chamber’s rulings, including its determination that the Khmer Rouge evacuations of the cities were an attempt at extermination.
I thought of Reach Sambath, the dynamic spokesperson for the court, who was orphaned by the Khmer Rouge. He died unexpectedly from a stroke in 2011. He had always acknowledged that the court had shortcomings. But, he told me, there was no such thing as perfect justice, except as a goal to be pursued.
Although Sambath officially served as the external face of the court, he viewed himself as a voice for the spirits of the hundreds of thousands of DK dead, including his parents and siblings. This role gave him his nickname: “spokesperson for the ghosts.” It was on their behalf as well, he stressed, that justice must be delivered.
Justice is always partial. International justice remains heavily politicized. The ECCC has emerged from the gauntlet between the Scylla of politics and Charybdis of law damaged.
Within limits, ones the ECCC has at times almost crossed, international justice with all its flaws is nevertheless better than the alternative, allowing genocide and crimes against humanity to go unpunished.
Given the choice between this court and its imperfect justice and no court, I think most Cambodians would choose the ECCC and the final decision rendered on Nov. 22.
Sambath likely would have told us better this justice than no justice — for the living and the dead.
Photo Credit: CHOR SOKOUNTHEA/AFP/Getty Images