The Khmer Rouge Trial (KRT) and the Destiny of the Cambodian People.

The future of the Khmer Rouge trial is on the brink of collapsing, and is as bleak as ever. This is why our group WCC (World Cambodian Congress for Progress and Democracy - http://www.wccpd.org/), had decided not to participate in this politically motivated seminar orchestrated by Hun Sen under the direction of Sean Visoth and Helen Jarvis, and with the cooperation of two Cambodian-Americans, Ronnie Yimsut and Leakhana Nou. Because of our refusal, Yimsut and Nou had blamed WCC for not cooperating with them and for obstructing the ECCC (Extraordinary Chambers of the Courts of Cambodia). For more detalis on this preposterous accusation, please see the set of emails exchange between me and Mr. Yimsut posted just below in this same page 

WCC is not against the Khmer Rouge trial and the ECCC at all. On the contrary, we have been advocating for real justice for the Cambodian people for a very long time, and is long overdue. This web site is the illustration of such an effort.

However, we have made it clear to the general public that we are against the parody of justice that Hun and his close associates have been practicing to hijack real justice by delaying and by taking over the trial process claiming to do so for protecting the sovereignty of Cambodia. What sovereignty does Cambodia have, today? It is common knowledge that Hun Sen a creation of Vietnamese imperialism over Cambodia. Unfortuantely, there are too few Cambodians who are interested in this crucial issue for Cambodia's future, and are willing to stand and fight for it. WCC did its best to expose this shameful manipulation and politicizing of justice by Hun Sen and his CPP. Naranhkiri Tith Ph.D. Washington DC. May 4, 2008)

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            Reviewing: Bringing the Khmer Rouge to Justice: Prosecuting Mass           Violence Before the Cambodian Courts (Jaya Ramji & Beth Van         Schaack, eds.).  Lewiston: The Edwin Mellen Press, 2005, 441 pp.

November 20, 2007 marks an important and long-awaited milestone for Cambodia.  On that day the first public hearing took place in the prosecution of a Khmer Rouge member for his role in the massacre of approximately 1.7 million Cambodians from 1975-1979.[1][1]  The three-decade delay in achieving this milestone is a result of complex political dynamics both within Cambodia and at the international level.  Unfortunately, many of the same forces that delayed justice for Cambodia threaten to smother the embers of the judicial fire that has finally been lit.  Certainly, there has been significant progress in the two and a half years since the Extraordinary Chambers in the Courts of Cambodia (Extraordinary Chambers or ECCC) finally became operational.  The relevant personnel are in place, internal rules have been adopted, and five defendants have been charged and are in custody.

Sadly, this progress is marred by serious concerns about the independence, impartiality, and competence of the Extraordinary Chambers.  Just three weeks after the co-investigating judges received the first Introductory Submission, Prime Minister Hun Sun requested that the King appoint the Cambodian investigating judge to the Cambodian Court of Appeal.[2][2]  Although a potential crisis was averted when Hun Sen announced that Judge You Bun Leng would remain at the ECCC despite his promotion, the incident raised concerns about political interference in the judicial process.[3][3]  The judicial independence of the Extraordinary Chambers was also put into question by a Cambodian cabinet minister’s statement that the government could “terminate” the ECCC if it attempts to bring charges against retired King Norodom Sihanouk.[4][4]  When the Open Society Justice Initiative made allegations of rampant corruption among Cambodian ECCC personnel, the Cambodian government responded by threatening to ban the Justice Initiative from Cambodia.[5][5]  Most recently, the United Nations Development Programme (UNDP) released the results of an internal audit revealing serious deficiencies in the ECCC’s human resources practices with regard to its Cambodian staff.[6][6]  The UNDP went so far as to recommend that all recruitment of ECCC staff to date be nullified and the recruitment process begun anew.[7][7]  UNDP further recommended the UN consider withdrawing its support from the tribunal “if the Cambodian side does not agree to the essential measures that are, from UNDP perspective, necessary to ensure the integrity and success of the project.”[8][8]  It remains an open question, therefore, whether the Extraordinary Chambers will contribute to justice and the rule of law in Cambodia or instead reaffirm the entrenched culture of corruption and impunity that has characterized the country’s judiciary in recent history.

Nothing less than the future of democracy in Cambodia hangs in the balance, as the editors of this remarkable volume demonstrate.  Jaya Ramji-Nogales[9][9] and Beth Van Schaack were among the earliest advocates of a tribunal to try Khmer Rouge leaders when discussions began ten years ago between the United Nations and the Cambodian government.  As legal advisors to the Documentation Center of Cambodia (DC-Cam), they have conducted trainings, performed field research, and provided various forms of legal assistance relevant to the nascent efforts to bring Khmer Rouge leaders to justice.  With this book, the editors assemble a collection of authors equally impressive and well versed in Cambodia legal and political history.  The authors’ extensive range of experience and expertise – from Buddhist studies to politics, human rights, and documentation – yields a comprehensive study of the past, present, and future of justice in Cambodia.

In the introduction, the editors promise an exploration of the legal and political challenges facing the ECCC, but also a window into broader questions surrounding the evolution of international criminal law and practice.  The book delivers on this promise.  The dominant theme linking the various contributions is the imperative of molding the international community’s response to mass criminality to meet the needs of the affected populace and polity.  This is a time of experimentation in the bourgeoning field of international criminal law.  Early post-Nuremberg efforts at international criminal justice focused primarily on the international community’s desire for individual accountability and retribution, rather than on the preferences of the affected populations.  Thus, relatively little thought was initially given to how the international criminal tribunals for the former Yugoslavia and Rwanda could best contribute to the process of reconciling antagonistic sectors of those communities and rebuilding their civil societies.  The recent move toward hybrid tribunals is emblematic, at least in part, of an increased international awareness of the contributions such tribunals can make to rebuilding post-conflict societies.  A growing consensus among participants in the international criminal justice system holds that tribunals integrated with the affected communities are better able to address the populations’ specific needs than are entirely international tribunals with non-national staffs, laws, and facilities. 

Among hybrid courts, the ECCC is unique in the extent to which the balance of power rests in the hands of the national participants.  The Cambodian government believes it is only right that Cambodians try the Khmer Rouge in Cambodian courts.[10][10]  As a result, the ECCC is subject to a novel supermajority voting formula whereby the agreement of at least two Cambodian judges and one international judge is required for any decision.[11][11]  Many national and international participants and observers, on the other hand, see Cambodian control of the ECCC as its Achilles heel and fear that instead of justice for Khmer Rouge victims and a strengthened Cambodian judiciary the process will leave Cambodia further weakened and the international community with unclean hands.[12][12]  Ramji-Nogales and Van Schaack’s book explores the historical and political forces that brought Cambodia to this tipping point, engages normative questions of how best to adapt accountability mechanisms to meet population-specific needs, and posits the challenges for Cambodia and the international community to overcome if the ECCC is to be a success by any measure.

The academic contributions to the volume are enclosed between literary bookends that remind the reader of the profound human suffering that provides the raison d’etre of the analysis.  In the prologue, Peter Hammer offers a brief account of a dream that continues to haunt his partner, a survivor of the Cambodian killing fields.  Hammer posits several potential interpretations of the dream, including chillingly suggesting that it may symbolize the devastating effects on the Cambodian people of the international community’s inaction in the face of Khmer Rouge atrocities.  The dream is powerful and Hammer’s analysis insightful.  At the same time, with so many survivors still able to recount the horrors they experienced, a first hand narrative might have provided a more apt opening to the book’s legal and socio-political analysis.

Rithy Panh’s epilogue, in contrast, could not be more personal.  Panh gives a gut-wrenching account of how he became a documentary film-maker in order to expose the pure evil of Khmer Rouge atrocities.  He begins by expressing the guilt he feels that, although a mere boy, he was unable to help those dying around him.  He then powerfully states the imperative of remembering: To fail to come to terms with the history of genocide would be to “face the worst kind of death – the death of memory.”[13][13]  Looking to the future, Panh echoes a theme that resonates throughout the volume: Cambodia’s social, economic, and political development requires the rejection of impunity for the Khmer Rouge leadership through criminal trials.  Impunity according to Panh breeds fear, distrust, and an inability to imagine a future together.  Panh also reminds us, however, that criminal trials are not enough.  Cambodians need help rebuilding their economy, educating their children, and strengthening civil society if they are to overcome the legacy of the Khmer Rouge horror.  Above all, to build a truly democratic society characterized by equitable shared development Cambodia must come to terms with its memory, an endeavor that Panh has made his life’s work.

The book’s academic discussion of the Khmer Rouge trials begins with a helpful contribution by Peter Hammer and Tara Urs setting forth the historical and political context into which the ECCC was born.  Hammer & Urs divide their analysis into four historical “chapters:” the politics of Ideology (1975-89), of Reconstruction (1989-96), of Personality (1997-98), and of Politics (1998-2004).  In discussing each of these periods of Cambodia’s past, the authors highlight the many ways in which Cambodian and international politics conspired to deny justice to the Cambodian people.  The 1979 “show trial” in absentia of Pol Pot and Ieng Sary provides a poignant example of how legal proceedings can be used to fulfill political ends at the expense of justice.  The chapter concludes with a description of the drawn out and contentious negotiations between the United Nations and the government of Cambodia to establish a tribunal to try Khmer Rouge leaders.  The authors opine that justice this long delayed can be no more than “tokenistic,” serving a largely symbolic function for Cambodia and the international community.  Although the power of criminal justice has certainly been diluted with time, other contributions to the volume make clear the critical importance to Cambodia of holding nationally and internationally respected trials even at this late date.

In keeping with the editors’ goal of placing the search for justice after mass atrocities in the appropriate cultural context, the second chapter examines the role Cambodian Buddhism can and should play in framing the country’s approach to accountability.  Ian Harris elucidates some basic Theravāda canonical concepts relevant to the discussion of individual accountability for Khmer Rouge crimes and wonders whether it is “too much to ask that [Buddhist] influences might be deployed in the context of [the] tribunal.”[14][14] Unfortunately, the answer the ECCC has given, constrained as it is by political and economic forces, is that such cultural sensitivity is, in fact, too much to ask. 

Editor Jaya Ramji-Nogales has criticized the Extraordinary Chambers for failing to incorporate into the process such Buddhist norms as the emphasis on reconciliation over retribution.[15][15]  Given the book’s primary audience of legal academics and lawyers, many readers will find Harris’ religious exegesis elusive.  Nonetheless, his discussion of the legacy of traditional law and the importance of recognizing religious and cultural factors in the quest for justice are important contributions to the book and to the broader discussion of cultural specificity in international accountability mechanisms.

The premise that justice in Cambodia should be tailored to fit the needs of the Cambodian populace is addressed directly in the third chapter.  William Burke-White employs three theoretical frameworks to explain why the preferences of affected populations matter to the quest for justice after mass atrocities.  First, restorative justice theory emphasizes the importance of using accountability mechanisms not merely as ends in themselves, but to help rebuild shattered societies.  Second, liberal international relations theory, seen through the normative lens of democratic entitlement, requires that justice respond to population preferences.  Finally, the individualization of international law has refocused international legal efforts on addressing the needs of citizens.  These theoretical approaches support Burke-White’s thesis that the process of securing accountability for Khmer Rouge atrocities must respect the preferences of individual Cambodians if it is to facilitate national reconciliation and promote democracy.  Having established the importance of citizen preferences, Burke-White presents data from approximately 50 “in-depth individual and group conversations”[16][16] he conducted in 2002.  These conversations indicated a strong preference among participants for prosecutions over other forms of accountability.  The most frequently voiced rationales for prosecutions were a desire for vengeance and a need to remember and document the past. 

Burke-White makes such a strong case for the importance of ascertaining and incorporating Cambodian preferences in the accountability process that the acknowledged limitations of his data leave the reader wishing for a more comprehensive survey.  Unfortunately, no such study has been conducted to date.[17][17]  The only other survey Burke-White references is a study that editor Ramji-Nogales conducted in 1997 involving 25 interviewees, many of whom expressed a preference for peace and even amnesty over justice.