This winter I was offered the opportunity to work as an intern for three months in the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – also known as the Khmer Rouge Tribunal. As a fourth year Arts/Law student I jumped at the chance. The ECCC is part of the new generation of international criminal justice – hybrid tribunals. Unlike the Yugoslav or Rwandan courts of the early 1990s, hybrid tribunals are located in the country where the mass atrocity occurred, allowing victims to witness the proceedings. These tribunals have also been adopted in Sierra Leone and Lebanon.
But the ECCC is particularly interesting for one reason – its extensive victim participation regime. Under this system victims can apply for civil party status and participate in the proceedings with near equal rights as the Prosecutor and the Defence counsel. Victims may question witnesses, examine evidence and, most importantly, they may confront the accused. In February 2008, Civil Party Theary Seng became the first victim in the world to ever confront a person accused of genocide and crimes against humanity in a court. She praised the ECCC, stating that the direct engagement of victims allows for “something concrete – that justice [can] be seen to be done”. But it does so much more than that, by providing a sense of agency to the victimised victim participation has the ability to promote healing and individual rehabilitation.
Unfortunately, being located within the country brings its own problems. The Court labours under an increasingly agitated Cambodian government, anxious to avoid a plethora of criminal trials. Prime Minister Hun Sen, himself an ex-Khmer Rouge cadre and in power since 1985, has made his position clear, believing that Cambodians should “dig a hole” and “bury the past”. For the international staff involved in investigating or prosecuting Cases 003 and 004 the Information Minister, Khieu Kanharith, has some advice, “they should just pack their bags and return home.” The identities of the five suspects in these two cases remain confidential but they are well known throughout Cambodia. Accused of crimes against humanity they now eke out a “meagre” living as a “prominent businessman in Phnom Penh” and a “deputy district commune chief”. Frequently interviewed in the Cambodian press these “tortured” souls attack the Court and thank Hun Sen for protecting them.
The problem is that Cambodia never experienced a period of De-Nazification and in fact, has relied on former Khmer Rouge leaders to form the backbone of the State since 1979. While the violent anti-intellectualism of the Khmer Rouge certainly forced their hand initially, the international community must share some blame. Cold war realpolitik prevented any significant development aid from reaching a ravaged nation, allowing patronage, corruption, and insecurity to spread. Today the judiciary is perceived as the sector “most affected by corruption”, with reports circling that “only one in six judges [have] a law degree”. Even Nil Nonn, the President of the Trial Chamber at the ECCC has admitted to taking bribes “but only after a case is over”.
Nevertheless the Court appears to be making inroads. A national survey conducted in the immediate aftermath of the Case 001 judgment found that 72% of respondents have more trust in the law than before the trial. However, before cracking open the Moet and congratulating themselves on a job well done, court officials would have taken note that despite this fillip, only 52% of Cambodians report having trust in the Court system, and only 48% in the judges themselves.
So continue the Court must. In late August, the Trial Chamber held Ieng Thirth, the former Minister of Social Affairs, and Nuon Chea, the President of the People’s Representative Assembly and Pol Pot’s Number 2 were fit to stand for a trial hearing. Over three days Nuon Chea’s defence team cast doubts on the expert report of Professor John Campbell (a specialist in geriatric medicine), painting an image of a man who has long lost any ability to function. However, in the late afternoon of the last day something strange happened – the accused rose to his feet and cleared his throat. Those paying attention in the public gallery would be excused for thinking that they could have detected the slightest of groans from his counsel. After three days of back and forth Brother Number 2 had had enough, launching into an emphatic and eloquent speech explaining to the Court that he did not understand what was going on, that of course he had dementia, and that he was far too old and far too decrepit to be expected to sit quietly all day. The relative ease and the apparent vitriol with which he gave this spiel seemed to entirely negate the evidence provided by his counsel. Although the Court decided to delay its decision, this is international law after all, it appears likely that Nuon Chea will get his day in Court – whether he wants it or not.
Whether the suspects in Case 003 and 004 do is anyone’s guess but I wouldn’t hold my breath.