Badly hampered tribunal could end up letting leaders of genocidal regime go unpunished for their crimes
Tourists visit the Tuol Sleng Genocide Museum (S-21) in Phnom Penh, Cambodia. The recent death of Ieng Sary, foreign minister of the genocidal Khmer Rouge regime, has raised the specter of one of the most brutal crimes of the 20th century going virtually unpunished as the remaining two survivors are in their eighties and in frail health
The old axiom of justice delayed being justice denied acquired particular poignancy on March 14 with the death of Ieng Sary, foreign minister of the genocidal Khmer Rouge regime.
Ieng Sary was 87. He had been admitted to a hospital in Phnom Penh days earlier with heart problems, high blood pressure and other ailments.
Sary was one of the five most senior surviving leaders of the Khmer Rouge on joint trial for committing Crimes Against Humanity involving the deaths of almost two million people (more than three million by some accounts), most of whom died horribly of torture, starvation and disease.
His wife, the regime’s Social Affairs Minister Ieng Thirith, was also charged but declared unfit to stand trial because she was found to suffer from a degenerative mental illness.
Only one of the four has been sentenced and the remaining two survivors are in their eighties and in frail health, raising the specter of one of the most brutal crimes of the 20th century going virtually unpunished. Both survivors have maintained they are not guilty of the crimes they are accused of.
“The death of Ieng Sary means that he will never be held accountable for the Khmer Rouge crimes,” Kenton Clymer, a professor at the Northern Illinois University who studies Cambodian history, told Vietweek.
Sary’s death and the frailty of the other octogenarian defendants are not the only worrying factors as the UN-backed tribunal trying the crimes has been dogged by controversy from the very outset, when it was established in 2006. Recently, funding has also emerged as a serious problem.
The European Union (EU), the second-biggest donor to the tribunal after Japan, has called on Cambodia to come up with more funding for the tribunal, where some workers went on strike early this month after going for more than two months without pay, Reuters reported.
“Although not unexpected, the loss of [an] accused is a critical blow for the court psychologically, particularly in the midst of a funding crisis and national staff strike,” said Anne Heindel, an American lawyer and legal adviser to the Documentation Center of Cambodia, an independent group gathering evidence of Khmer Rouge crimes for the tribunal.
Since 2006, the tribunal, officially known as the Extraordinary Chambers in the Court of Cambodia (ECCC), has only been able to hand down a life sentence to notorious prison chief Kaing Guek Eav, better known as Duch, who oversaw the deaths of some 15,000 people. Cambodia does not have capital punishment.
But Duch’s case was considered much simpler than the trial involving the regime's three surviving bigwigs that began in late 2011. Other than Ieng Sary, the other two defendants are 87-year-old Nuon Chea, the Khmer Rouge's chief ideologist, and 82-year-old Khieu Samphan, the ex-head of state.
They were all charged with crimes against humanity, genocide, religious persecution, homicide and torture in connection with the Khmer Rouge's 1975-79 reign of terror.
Led by supreme leader Pol Pot, who died in 1998, the Western-and Chinese-backed Khmer Rouge regime was responsible for some of the 20th century's worst atrocities, killing up to two million people.
The regime ruthlessly and brutally pursued its ideal of a rural utopia that forced people to leave cities, abolished money and outlawed religion. It executed people at will, overworked the population and forced people into starvation before it was overthrown by the Vietnamese army responding to repeated bloody attacks across that nation’s border.
Bickering over funds
The death of Ieng Sary has prompted independent activists to urge the ECCC, the Cambodian government, international donors and the UN to resume work and expedite the trial.
“We owe it to the surviving victims of the Khmer Rouge, the families of the victims, and the whole of Cambodian society that continues to suffer from the impact of the Khmer Rouge to this day, ” Surya Subedi, the UN special rapporteur on human rights in Cambodia, said in a statement.
Lars Olsen, a spokesman for the tribunal, said the court has terminated the proceedings against Ieng Sary, but the charges against Khieu Samphan and Nuon Chea, filed under case 002, are not affected.
“We are hopeful that the donors will continue to provide the funds necessary for the court to complete its mandate and hopefully bring some sense of justice for the Cambodian people,” Olsen told Vietweek.
But there is apparently little hope on the horizon.
Maja Kocijancic, a spokesperson for the EU, said the bloc has taken note of the recent budget cuts proposed by the ECCC on its international side, a substantial reduction of the 2013 budget by 20 percent compared to 2012.
“We believe that such budgetary efforts should be explored on the national side of the [ECCC] as well,” Kocijancic told Vietweek.
“The EU keeps encouraging the [Cambodian government] to continue substantially increasing its own contribution to the [tribunal], as a sound measure to improve its sustainability and its ownership by Cambodia itself.”
Cambodia has said that it has given more than its fair share and has appealed for bigger donations, according to Reuters, but activists say it is not about who should pay and who has paid more than the others.
“The United Nations and the government of Cambodia made a promise of justice and genocide prevention, not only to the Cambodian genocide survivors but also humanity,” said Youk Chhang, director of the Documentation Center of Cambodia.
“Administrative matters and political differences must not obstruct the fulfillment of this solemn oath…The court must be allowed to complete its work,” Chhang said.
003 and 004
There have been calls to open the third and fourth cases, or 003 and 004, and bring more former Khmer Rouge members to trial, but Cambodian Prime Minister Hun Sen has expressed his opposition to further trials, saying they could prove divisive and even lead to civil war.
A Reuters report said that the Hun Sen government has “reason to be concerned with 003 and 004” because “some government officials occupied Khmer Rouge positions similar to those held by the suspects.”
Vietweek asked Cambodia’s Ministry of Foreign Affairs and International Cooperation about these allegations but had not received any response as of press time.
But Cambodian government spokesman Ek Tha was quoted by Reuters as saying: “We are not interfering with the ECCC's work but facilitating them." Tha also denied "any influence or authority whatsoever" over the court.
Heindel, the American lawyer, said that at a recent pre-trial chamber decision, it appeared that the national side of the court would continue to oppose efforts to move the 003 investigation forward.
“Should the international co-investigative judge nevertheless seek to bring the suspects to trial, there would be many additional procedural hurdles that could be manipulated to further obstruct the process,” she said.
David Chandler, one of the foremost scholars on Cambodia, also said he doubted cases 003 and 004 would ever get to the ECCC.
“The Cambodian government opposes their inclusion vehemently,” Chandler said.
“Sufficient international pressure won’t occur and in any case would not change Hun Sen’s mind.”
For their part, survivors of the Khmer Rouge regime from Cambodia and Vietnam have said they cannot forget or forgive the atrocities committed.
"I’m upset that Ieng Sary died peacefully unlike the millions whose deaths he ordered during the Khmer Rouge years,” Ou Hieng, a 71-year-old Cambodia woman who lost 20 family members, was quoted by the Documentation Center of Cambodia as saying.
Elsewhere, in Ba Chuc Village, situated just a few kilometers from the Cambodian border in the Mekong Delta province of An Giang, Ha Thi Nga, a 73-year-old Vietnamese victim who survived a Khmer Rouge massacre of 3,157 Vietnamese people in 1978, says she neither knows nor remembers any Khmer Rouge leader to hold a grudge against them.
“But…,” said the soft-spoken woman who lost her husband, six children, parents, and 28 other relatives in the massacre, “…never let me see any of them again.”
AND JUSTICE FOR ALL?
Several activists, journalists and historians have said that the tribunal has been hobbled from the start since its mandate has been too narrow.
Writing in New Internationalist magazine, Tom Fawthrop, joint author of “Getting Away With Genocide”, a definitive work on the Cambodian genocide and attempts to bring its perpetrators to justice, said the argument that several other responsible parties will escape justice was a valid one.
“President Richard Nixon’s Secretary of State, Henry Kissinger, was the main author of the barbaric US bombing campaign against Cambodia (killing at least half a million people), which paved the way for the Khmer Rouge victory. Kissinger, critics argue, would also be on trial if international justice weren’t so tilted in favor of the West.
“A valid point, but sadly, immunity from prosecution still exists for Western leaders. Think of the NATO bombing of civilians in Belgrade during the Kosovo War, or of Israel’s role in the massacre of Palestinian refugees in Beirut, or more recently, in Gaza. The US has deliberately exempted itself from the International Criminal Court,” he wrote.
“But current flaws in international justice should not be used to exonerate the Idi Amins, the Pinochets and the Pol Pots of this world,” he added.
While the “whole truth will not emerge in the [Khmer Rouge Tribunal],” it would make history with the extensive documentation that has been compiled, and the “final judgment on the Pol Pot era will become the authoritative base of history books and the teaching of future generations.”
Fawthrop also noted that “many governments, including China, the US, Singapore, Thailand and Britain, conspired to block and delay this Tribunal during the Byzantine politics of the ‘Cold War’ era.”
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By An Dien, Thanh Nien News (The story can be found in the March 22nd issue of our print edition, Vietweek)