Cambodia’s Troubled Tribunal

Cambodia’s war crimes court, the Extraordinary Chambers in the Courts of Cambodia, or ECCC, deserves credit for convicting Kaing Guek Eav, better known as “Duch,” for war crimes and sentencing him to 35 years in prison. But Duch was the legal equivalent of a “tomato can” in boxing — an unskilled opponent used to pad a win-loss record. His conviction was an easy knockout.

Now that that legal mismatch is over, the long delayed main event — the trial of the aging Khmer Rouge political leaders — Ieng Sary, Khieu Samphan, Nuon Chea and Ieng Thirith — can begin.

Unlike Duch, a functionary who admitted he was “responsible for the crimes committed” and expressed “deep regret and heartfelt sorrow,” the regime’s top leaders will mount aggressive defenses and maintain their innocence until the end.

None of the four defendants were hands-on killers like Duch — they simply issued orders from on high. Thus their cases will require the tribunal to take a much broader view of their legal mandate. Unlike Duch, these defendants were careful to distance themselves from the atrocities.

Their cases will rely heavily on the court’s reading of the conspiracy charge because while the accused were architects of Khmer Rouge policy and issued the orders, they did not carry them out.

Their cases were further complicated in December when charges of genocide were added to the indictments. Many scholars have argued that adding genocide, a narrowly defined legal concept, will only increase the burden on the prosecution. Why, they ask, should this war crimes court be turned into a venue for an unresolved debate over academic definitions?

As if the legal difficulties facing the court were not enough, Hun Sen, Cambodia’s all-powerful ruler, soured on the ECCC when it tried to open additional investigations and indict more suspects last September. The prime minister said such a move could rekindle civil war.

Ever since Hun Sen forced his way to power after the country’s U.N.-sponsored elections in 1993, he has outfoxed generations of U.N. bureaucrats and Western diplomats. He is quick to remind the U.N.’s legal specialists that he calls the shots. “If the court wants to charge more former senior Khmer Rouge cadres, [it] must show the reasons to Prime Minister Hun Sen,” he said. “Hun Sen only protects the peace of the nation.”

He has stated openly that he hopes the ECCC fails and that his government can try the Khmer Rouge leaders on its own. As long as the ECCC was willing to play by Hun Sen’s rules, the court was tolerated. Once it began to act with greater autonomy, the court started to break down along national/international lines. The Cambodian prosecutor, Chea Leang, refused to investigate new cases, and Judge You Bunleng “unsigned” his letter authorizing new investigations. When the court’s international co-investigating judge, Marcel Lemonde of France, tried to summon six high-ranking Cambodian government officials to give testimony, they all refused. The Cambodian government took the position that no one was compelled to testify before the ECCC.

Earlier this month, foreign defense lawyers for Nuon Chea accused the Cambodian government of implementing a “concerted policy” to undermine new investigations and called for a U.N. inquiry. They asserted that “recent developments have confirmed longstanding suspicions that certain members of the Royal Government of Cambodia are interfering with the administration of justice at the ECCC.”

The U.N. secretary general, Ban Ki-moon, has appointed a special expert to examine the allegations of political interference, but, given its past record, the organization is unlikely to press its case.

Although the court has clearly lost the support of the Cambodian government, the trials are scheduled to drag on until 2015. Despite allegations of corruption, massive budget overruns and a conspicuously slow pace, the court’s donors, including the United States, continue to fund it. Originally expected to cost $20 million a year and to take three years, the court has already spent at least $70 million and convicted only one suspect.

The biggest problem facing the ECCC is living up to it’s own hype. Claims that such trials lead to healing, closure, truth and reconciliation are speculative at best. How does one measure “healing, closure and reconciliation”?

While most Cambodians would like to see the Khmer Rouge leaders punished, they’ve grown used to seeing common thieves and their government’s political opponents suffer far worse punishment than that meted out to Duch. Bou Meng, a survivor of the Tuol Sleng prison, described Duch’s sentence to reporters as “a slap in the face.”

The U.N. legal experts and their cheerleaders in the human rights industry have lost sight of a basic fact: No matter how procedurally perfect the ECCC is, if it outlives the people it was supposed to try, it cannot be judged a success.

Peter Maguire, the author of Facing Death in Cambodia and Law and War: International Law and American History. He has taught the law and theory of war at Bard College and Columbia University.