Experts look at Cambodia's Khmer Rouge trial
Associated Press | 6 August 2014
PHNOM PENH, Cambodia (AP) — A
U.N.-assisted court on Thursday will deliver its verdicts in a case
against the two most senior surviving leaders of Cambodia's Khmer Rouge,
charged with crimes against humanity. The case — covering forced
movements of people and a mass execution — is just a sliver of the
offenses that led to the deaths of an estimated 1.7 million people
through starvation, medical neglect, overwork and execution when the
group held power in 1975-79.
The tribunal,
formally known as the Extraordinary Chambers in the Courts of Cambodia,
began its work in 2006 and had spent $204.6 million up to the end of
last year. Cambodian and international jurists jointly comprise the
bench, prosecution and defense teams.
The
trial of Khieu Samphan, the regime's head of state, and Nuon Chea,
right-hand man to the group's late leader, Pol Pot, began in November
2011 and ended in October 2013. More than 100,000 people attended its
222 sessions.
A second trial of the two is to start by the end of
the year, adding charges of genocide to additional counts of crimes
against humanity. Five low-ranking Khmer Rouge are under investigation,
with a decision on whether to try them expected sometime next year, a
move opposed by Cambodian Prime Minister Hun Sen. The tribunal has heard
one previous case, resulting in the conviction of the commandant of a
torture center.
The Associated Press asked legal and academic
experts to explore questions beyond facts and figures. Their replies
have been edited for brevity:
----------
Q: The Khmer Rouge
Trial seems like a very long and expensive process to have prosecuted
only three elderly defendants. Is the expense justified?
A:
Justice mechanisms for complex crimes that span an entire country and
result in nearly 2 million deaths are inherently time-consuming and
expensive. They require exploring extensive evidence and applying
detailed principles of international law.
Nonetheless,
the court's record for cost-per-accused is high compared to other
hybrid tribunals and to the international tribunals for Rwanda and the
former Yugoslavia. This is primarily because the court has indicted and
tried so few people. The complicated procedures of the court also
contribute to its relatively high cost.
Whether,
in the end, Cambodians will believe the court was worth the time and
the expense is a question that can only be answered in the future by
looking at whether the court contributes to a culture that rejects
impunity and respects rule of law, and whether Cambodians have a sense
that substantial justice for Khmer Rouge atrocities has been delivered.
-- HEATHER RYAN, who has monitored the tribunal's work for the Open Society Justice Initiative.
----------
Q:
A school of thought suggests that a major purpose of the Khmer Rouge
tribunal is to establish an accurate record for history's sake. To what
extent do you think this has been accomplished?
A: I agree with
the proposition, but I would be happier with the word 'hope' than with
the word 'purpose.' That said, I think one of the most important
outcomes of the ECCC so far has been the mass of documentary data that
has been assembled relative to the Khmer Rouge era. Tens of thousands of
pages — including court testimony but not limited to statements made in
court — have been assembled in three languages. These pages are
permanently accessible to anyone, and they contain masses of material
that had not emerged in the printed record before the trial.
Whether
anyone will ever attempt to write an accessible history of the Khmer
Rouge era is another question. One prominent scholar... seems to have
abandoned the project. Others will probably be cowed by the mass of data
that was available to scholars before the ECCC, principally in the
archives of the Documentation Center of Cambodia (which collects
archival material on the Khmer Rouge), and by the data accumulated
since.
-- DAVID CHANDLER, retired professor of history at Australia's Monash University and author of several books on Cambodia.
----------
Q:
The surviving Khmer Rouge policymakers have been brought to justice.
Why is it important that lower-level Khmer Rouge also be tried?
A:
As many as 2 million people died under the Khmer Rouge. Yet Prime
Minister Hun Sen says that the convictions of three people will be
enough to provide justice for the Cambodian people. U.N. appointed
prosecutors and judges have attempted to prosecute a handful more. But
Hun Sen has said that even a few more cases will not be allowed. He has
spent years obstructing justice and delaying trials.
Why would a
Cambodian leader do this? Hun Sen, a former Khmer Rouge member, appears
to be afraid that investigators would implicate his colleagues in the
ruling Cambodian People's Party. He may even be trying to protect
himself, since there are allegations that he participated in abuses.
And
what about the victims? Senior Khmer Rouge killers continue to live in
villages and towns next to the surviving family members of those they
killed. Would a European or American Jew accept this? The continued hunt
for Nazi collaborators almost 70 years later answers this question. So
why should Cambodians get a different brand of justice, one that the
Japanese, Australian and European governments continue to fund?
-- BRAD ADAMS, Asia director for New York-based Human Rights Watch.
----------
Q:
The great scale of the atrocities committed under the Khmer Rouge
inclines people toward a presumption of the defendants' guilt. Can
justice truly be served in such a case?
A:
The public convicted the accused ... in the court of public opinion
before the trial started. Thankfully, judges are trying the case. They
are expected to set aside their presumptuous and prejudices, listen to
the evidence, afford all parties their rights, apply the law as it is
and not as they would wish it, assess the evidence correctly, and
dispassionately render a judgment.
The
quality of the judgment will determine whether the judges performed
their duty. If they selectively used some of the evidence in making
their findings and conclusions while ignoring contradictory evidence at
odds with their conclusions, then the trial was a result-oriented
charade. If the judges applied incorrect legal standards in assessing
the evidence and systematically failed to properly assess the relevant
evidence, then not only the credibility of the judges comes into
question, but also the purpose for holding the trial.
If
the judges afforded the accused procedural and substantive justice,
especially in the assessment of the evidence and the application of the
law, then, irrespective of the already rendered guilty verdict in the
court of public opinion, there can be no cause for concern that a
miscarriage of justice was committed.
--
MICHAEL KARNAVAS was a lawyer for former Khmer Rouge Foreign Minister
Leng Sary, who died during trial, and represents Meas Muth, a
prospective defendant in any future trials.
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