Members of the Extraordinary Chambers in the Courts of Cambodia, a unique national experiment in trying accused war criminals. Photo courtesy of the ECCC
The Cambodian government is not historically known for caring much about international justice or criminal arbitration. But now, far from The Hague, in a former military base off a long, dusty stretch in the outskirts of Phnom Penh, the Extraordinary Chambers in the Courts of Cambodia (ECCC) is undertaking a unique experiment in putting the country’s most murderous masochists on the stand. More than 30 years after the start of its reign, the Khmer Rouge is getting its day in court. And for the first time in a case that includes crimes against humanity and assorted other atrocities, the host country is partnering with the UN.
It’s possible you’ve never heard of the ECCC. Despite the fact that the Khmer Rouge leaders who are being prosecuted were part of one of the most horrific regimes of the 20th century and were an important player in the batty geopolitics of the post-Vietnam cold-war era, the story of these trials tends not to make headlines outside Cambodia. And though the ECCC may well become the new model to replace distant, slow-moving courts like the International Criminal Court at The Hague, the trial has unfairly been relegated to tiny corners of pages in an unread section of the newspaper. As ECCC public-affairs officer Yuko Maeda told me, “It’s because it happened far away and it happened 30 years ago. [People] pay attention to Afghanistan, to Iraq. They pay attention to someplace else. This is an old story for them.” True enough. But given the regularity with which both murderous legitimate governments and hostile illegitimate regimes set in with the mass murder these days, a timely and effective method for trying these cases seems a reasonable objective—and cause enough to wonder why there isn’t one already.
A few years back, Vice ran a story that featured the work of an artist named Vann Nath, one of only a few survivors of the notorious Khmer Rouge prison Tuol Sleng, aka S-21. In his paintings, Nath depicts the brutality of the torture he and others endured under S-21’s notorious director, Duch. Today, Nath is the star witness in the ECCC’s Case 001, which concluded at the end of last year and is due for a verdict sometime in early 2010. Duch is the defendant.
Nath survived his stay at S-21 solely because he was good at drawing portraits of Pol Pot—or Brother Number One, the party’s deranged and homicidal leader—and scribbling up assorted other propaganda. He is tall and slender with a head of snow-white hair and bushy salt-and-pepper eyebrows. When I met him at his gallery space in Phnom Penh, he spoke calmly and softly. “All the blood is on their hands,” he told me of his few surviving Khmer Rouge torturers. “I cannot reconcile with the ones who do not admit what they have done wrong.” It’s been a while, too: Thirty-one years ago, on January 7, 1979, after spending exactly one year in the jail, he escaped with other prisoners in the chaos that accompanied the Vietnamese invasion of Cambodia.
Vann Nath, a key witness against Duch (right), and one of the few living survivors of the Khmer Rouge prison S-21. Photo by Sara Golda Rafsky. Duch, the former Khmer Rouge leader in charge of S-21, on the stand before the ECCC. Photo courtesy of the ECCC
Though a verdict is expected soon, Nath didn’t seem hopeful. “It is taking so long,” he said. “There are other forms of reconciliation.” He was alluding to private meetings he’d held with other survivors and apologetic Khmer Rouge members. While Cambodians have agonized over the nature of the court and its progress, few debate the validity of its existence. In the end, Nath said, “the only form of justice is the court.”
The ECCC was created to prosecute the crimes committed during the reign of the Khmer Rouge, when, after winning a long civil war, the ultrazealous Maoist group outlawed currency, religion, and school as it ruthlessly pursued its goal of achieving a classless agrarian society. Over that same period, through disease, starvation, physical exhaustion, imprisonment, and execution, the regime took an estimated 2 million lives out of a population of 8 million—roughly a quarter of all citizens in less than four years. The Cambodians neatly summarize this period as the “auto-genocide.”
But while counts of war crimes and crimes against humanity were brought early on, the question of whether the Khmer Rouge era falls within the legal definition of genocide has lingered quite a bit longer. The contention stemmed from the fact that the crimes of the Khmer Rouge were mostly perpetrated by and against members of the same national and ethnic group. To legally constitute genocide, the acts must be committed “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” The prosecution for Case 002 argued that because ethnic Vietnamese and Muslim Cham minorities were especially targeted by the regime, the terms for genocide were met. Genocide was recently added to the list of charges against a slew of the Khmer Rouge’s senior members in Case 002, but were never filed against Duch.
Duch, whose given name is Kaing Guek Eav, is a former mathematics teacher-turned-avid revolutionary. He is featured heavily in Nath’s account of his ordeal, A Cambodian Prison Portrait: One Year in the Khmer Rouge’s S-21. He also plays a leading role in another famous book about the Khmer Rouge, The Gate, by French ethnographer François Bizot, who was himself imprisoned by the Khmer Rouge and interrogated by Duch for several months in 1971, during the civil war. Bizot describes Duch as “not a monster from the abyss but a human being, taken by nature and conditioned for killing. His intelligence had been honed as the tooth of the wolf, or the shark, but his human psychology had been carefully preserved.” Nath knew him more as the guy he needed to keep happy. “My destiny was hanging on this last picture I was painting!” Nath wrote.
Then, in 1979, the Vietnamese liberated Cambodia from its own occupation. The ruling parties of both countries shared a Communist ideology, but that was no match for a century’s worth of seething mutual hatred. After being provoked one too many times with cross-border attacks, the Vietnamese invaded and handily won. They dismantled the Khmer Rouge’s so-called Democratic Kampuchea (DK) government and occupied Cambodia until 1989.
A list of acceptable behaviors taken from the S-21 site, which is now home to the Tuol Sleng Memorial Museum. Photo by Sara Golda Rafsky
When Pol Pot died in 1998, the era of the Khmer Rouge was finally put to rest. Well, for most everyone but the millions of Cambodian victims and orphans. Many residents had written off the idea of ever seeing their DK tormentors take the witness stand, forced to answer for their crimes or to explain what had actually happened during the nearly four-year nightmare. With each passing year, Nath was losing hope as well.
In 1997, the Cambodian government pleaded with the United Nations for assistance in prosecuting former DK members for war crimes. After years of negotiation and a bunch of internal wrangling, the two hammered out an agreement. Today, court officials take great pains in insisting that this is a “domestic court established within the framework of the Cambodian legal system, but with international assistance and participation.” Still, it is financed almost entirely by the UN and foreign donations.
The ECCC became fully operational in 2007 but didn’t begin its first case, 001, until February of last year. The reason for this delay was undoubtedly the uniquely complex makeup of the court. The prosecution and defense teams are each composed of one foreign and one local lawyer, but all appointments must get final approval from the Cambodian government (many of whose members are themselves former Khmer Rouge). A Trial Court Chamber of three Cambodian and two international judges renders verdicts, and appeals go to a Supreme Court Chamber with four Cambodian and three international judges. Convictions require the supermajority vote of four of the five judges on the Trial Chamber or five of the seven Supreme Court judges. Unless the Cambodian and international judges can reach an agreement, the defendants go free.
The architects of the ECCC added a “civil party” component by which anyone who can prove victimhood (or relation to an executed victim) of the Khmer Rouge can pitch their tent alongside the prosecution. The civil parties have the right to access any legal documents and can have their representative question any witness in the trial. They are, however, relegated to moral and collective (as opposed to financial) reparation. The number of people seeking civil-party status has become overwhelming: Ninety-four applied for Case 001, but more than 2,000 have already applied for Case 002. The court is now seeking ways to limit the number of people who can participate in upcoming cases.
The results of this strange system have been encouraging so far. As Maeda says, the ECCC “could be a model for postconflict countries to have a tribunal inside the country with international assistance. That way you can retain some level of international standards, but at the same time it can be accessible to the people who have suffered, so that they can participate in the process.” The aim is closure.
Over the course of the more than nine-month-long trial of Case 001, nearly 28,000 observers filled the 500 seats of the public gallery, many of them Cambodian villagers from rural areas who took free buses organized by the ECCC. Maeda believes that this is one of the most powerful aspects of having the trial take place in the country where the crimes were committed instead of at The Hague. “People just wanted to know why it happened,” she told me. The main goal of the court “is to bring justice to Cambodia, because this is a trial. But the second goal is to write the history and educate the younger generation who didn’t know anything.”
If the younger generation is in the dark about this part of their country’s history, it wasn’t by accident. There was never a clear record kept of what happened during DK prior to these trials, and the Khmer Rouge regime wasn’t even included in Cambodian school curricula. In May of last year—as a result, many feel, of the ECCC proceedings—a new textbook was distributed in high school and university classrooms. The Khmer Rouge is in it.
A collection of photos of onetime S-21 captives currently hanging inside a cell on the former site of S-21. Photo by Sara Golda Rafsky
Also included is Duch. After living for 20 years incognito, he was discovered by a journalist in 1999 and subsequently arrested by Cambodian military authorities. He has been in detention and awaiting trial for crimes against humanity, grave breaches of the Geneva Conventions, homicide, and torture—as well as a body count somewhere in the 14,000 range—ever since.
Nath and I sat to discuss Duch and also what the trials mean to him. He explained calmly, “I can release my anger. It shows I do not have any desire for revenge.” When I asked whether he had seen Duch since he was freed from prison, he paused for a very long time and studied his hands. He answered softly, “Never.” I also explained that I was curious to know what it was like when he finally did see Duch again, at the start of the trial. He replied quickly: “I cannot tell you what my heart felt. That is too much inside my psychology, and I do not know how to open up and tell you that.” But, he said, “I saw that Duch was still a very powerful person.”
Nath chose not to file as a civil party, but he was far more important as a witness anyway.
The trial was generally regarded as a success. But the closing week showed fissures in this complex legal creation. As a defendant, Duch had been remarkably cooperative, admitting guilt, answering questions about operations at S-21 in detail, and repeatedly asking for forgiveness. The defendant’s French lawyer, François Roux, even went so far as to say that Duch was dead, that the revolutionary persona no longer existed, and that the elderly man on trial was only Kaing Guek Eav. The lawyer used this contrition to plead for a lighter sentence of 40 years, as opposed to the maximum one of life imprisonment.
But then, in a completely outrageous turn of events just days later, Duch’s Cambodian counsel, Kar Savuth, claimed Duch was innocent. The court’s mandate is to prosecute senior officials of the DK. Duch, Savuth argued, was merely a subordinate following orders he could not refuse. To the shocked spectators of the overcapacity public gallery, Savuth declared that Duch should be set free.
The headlines of the major Cambodian newspapers blared for days following the conclusion of the trial. The international media, however, left it mostly unreported. In Cambodia the reaction was not only to Duch’s sudden presumed innocence but also to the fact that this painfully stitched-together system seemed to be unraveled by lawyers of the defendant. It would be laughable in some other context.
Case 002, which will be prosecuting the surviving four senior Khmer Rouge officials—all of whom deny their guilt adamantly—is even more legally complex. The country is bracing for a major national headache. That is, if the case—which is bogged down in the pretrial investigation stage—can begin before the statute of limitations expires (three years after the accused were first imprisoned in late 2007) or one of the elderly defendants dies.
No one knows whether there will be another case after 002. The court is only mandated to try senior leaders of the DK era, and few are still around. Whenever all the cases are finished, the court will be shut down and its archives will be transferred to the government of Cambodia. For many Cambodians, this is not enough, and they have been outspoken about their anger at the fact that lower-level cadres—like the ones who actually did the torturing at S-21—are not being tried and continue to lead their lives, often side by side in the same villages as their former victims. One person who has weighed in with his opinion—much to the consternation and embarrassment of the ECCC—is Cambodian prime minister Hun Sen. Shortly after Case 001 concluded, the leading Phnom Penh newspapers all quoted Sen as saying, “Sorry, no more [prosecutions]. I would rather see the court fail than let the country fall into war.” And it’s not the first time he’s expressed the sentiment.
Other allegations of government interference and collusion with the DK regime have dogged the tribunal as well. Sen, to use just one example, is a former member of the Khmer Rouge. At the moment, administration officials refuse to answer to subpoenas for members of their party to testify. At the same time, the defense in Case 002 has filed multiple motions claiming bias against their clients on the part of the court. At one point, donors were withholding funds from the cash-strapped court because of persistent allegations of corruption on the Cambodian side. Maeda was adamant, however, that “the ECCC has been working independently from an executive influence. The court works independently under the law.”
Coincidentally, the same week Case 001 concluded, thousands of miles away in Europe, what is being heralded as “the last big Nazi trial” began with opening statements. The parallels are obvious, with similar arguments being made by both the defense and the prosecution as to whether or not the Nazi defendant had merely been following orders or whether he could have refused them or run away. The accused had been a prison guard at a concentration camp, though in not nearly as senior a position as Duch held. These issues are reminiscent of many international war-crimes tribunals. Several of these questions that were first asked at the Nuremberg Trials have never been fully answered.
International war-crimes tribunals have developed a flat, repetitive narrative over the years, often with unsatisfying conclusions. ECCC officials stress the most newsworthy aspect of this new hybrid court, which exists as a distinctive partnership between the Cambodian government and the United Nations: It is the first attempt at having an international tribunal within a country’s civil legal system. Unlike those of the tribunals established to prosecute the war crimes committed in Rwanda or the former Yugoslavia, this ECCC’s jurisdiction is determined by Cambodian law. In comparison with the tribunals established in Sierra Leone or East Timor, the majority of the judges of the ECCC are nationals. ECCC legal-communications officer Lars Olsen told me that the advantage of this model is that it is “cheaper than setting up a full-fledged international tribunal, and it has the advantage of national ownership of the process, while at the same time ensuring that international fair-trial standards are being applied.” He was quick to punctuate the idea that “the court will not represent ‘imposed justice.’” He also noted the benefit of doling out some lessons on how an impartial justice system functions in a country with a notoriously corrupt judiciary.
It sometimes can be difficult, however, to determine how effective the ECCC, or any international war-crimes tribunal, can really be. A study last year from the Berlin-based Treatment Center for Torture Victims reported that nearly two-thirds of direct victims of the Khmer Rouge are not ready to reconcile. But national reconciliation is a primary goal of any war-crimes tribunal. It’s tough to say whether this court can be successful without it.
Reflecting on the difficulty of healing 30-year-old wounds, Maeda seemed equally concerned: “It’s hard to say whether we are helping people to actually reconcile or whether we are splitting people away. But I believe this is the first step for the Cambodian people to speak up about what happened to them. This is a real opportunity to be recognized by the international community about what took place in this country.” Of course, that’s if Duch gets the verdict everyone assumes he’ll get.
Nath obviously agrees with Maeda. He’s also careful to emphasize that he respects whatever the court decides. Actually, he’s careful about everything—as one of the country’s most high-profile victims, his every word is scrutinized in the local press. Ultimately, though, and at the end of my time with him, he simply seemed relieved to have finally told his story to a roomful of people who might be able to do something about it.