Better Late Than Never? The Final Verdicts of the Khmer Rouge Tribunal
Photo Credit: Reuters
By Alvin Cheng-Hin Lim

Better Late Than Never? The Final Verdicts of the Khmer Rouge Tribunal

Nov. 19, 2018  |     |  0 comments

On Friday November 16, 2018, the Extraordinary Chambers in the Courts of Cambodia (ECCC), popularly known as the Khmer Rouge Tribunal, handed down what were likely to be its final verdicts. In its verdicts for Case 002/02, the surviving top leaders of the Khmer Rouge, Nuon Chea and Khieu Samphan, were found guilty of “various crimes against humanity and grave breaches of the Geneva Conventions.” In addition, Nuon Chea “was found guilty of genocide of both the ethnic Vietnamese and Muslim Cham minorities,” while Khieu Samphan “was found guilty of genocide against the Vietnamese, but — due to a lack of effective command — not of the Cham.” In 2014, the ECCC had convicted Nuon Chea and Khieu Samphan in Case 002/01 of “crimes against humanity, of extermination, murder, political persecution, and other inhumane acts comprising forced transfer, forced disappearances and attacks against human dignity.” In both Cases 002/01 and 002/02, Nuon Chea and Khieu Samphan were sentenced to life imprisonment.

Critics of the ECCC have highlighted the great cost and slow pace of the tribunal’s work: “It took nine years to get the first case to trial and, 12 years and $320m later, it has convicted only three men. Most of those responsible for the killings, including Pol Pot, died before they could be tried.” Indeed, two other top Khmer Rouge leaders — Ieng Sary and Ieng Thirith — who had been charged alongside Nuon Chea and Khieu Samphan in Case 002, had died before the conclusion of the case. However, as Alexander Hinton points out: “Justice is not perfect. But it’s better than no justice. And what’s the alternative? Impunity for mass murder.”

Daniel McLaughlin from the Center for Justice & Accountability notes that the ECCC had allowed the Khmer Rouge’s victims “to participate directly and provide evidence as civil parties and complainants before the court,” thereby giving the “victims and affected populations a sense of ownership over the proceedings and their outcomes. The justice rendered is first and foremost theirs.” As Craig Etcheson explains, the sense of justice has important significance for the survivors of the genocide:

“What would real justice look like when you are talking about an event in which millions of people were killed? In truth, there is nothing that can make up for all of the destroyed lives, families and communities. That is why trials of people accused of mass atrocity crimes yield only symbolic justice. For many survivors, however, symbolic justice is better than nothing because it puts a face on responsibility for the catastrophe, and it also produces a carefully tested historical narrative which gets at the question survivors always have: ‘Why?’”

While the final convictions of Nuon Chea and Khieu Samphan may offer some form of closure for the survivors and their families, it remains impossible for such symbolic justice to fully heal their psychological wounds. This is especially since most of the Khmer Rouge’s victims are interred in mass graves, leaving their surviving family members unknowing of where the remains of their loved ones are buried. As Rithy Panh documents in his new film Graves Without A Name, the people of rural Cambodia are “still living all too tangibly with the consequences of the Khmer Rouge regime, as broken-down remains of the dead — teeth, buttons, bones — are still churned up in the soil they work on a daily basis.” Even today, mass graves from the Khmer Rouge period continue to be discovered.

In international perspective, the conclusion of Case 002/02 sets a legal precedent that warns leaders who are responsible for or who are considering committing crimes against humanity or genocide that they may eventually face a reckoning for their crimes.

Another major issue with the ECCC, as genocide survivor Sophal Ear observes, is that “there are still many Khmer Rouge leaders who will never face justice.” Peter Maguire notes that the ECCC had indeed sought to try “new cases against other surviving Khmer Rouge leaders like navy head Meas Muth,” but these attempts were effectively blocked by the Cambodian government which “refused to investigate these new cases, much less carry out arrest warrants.” In addition, Maguire observes that the scope of the ECCC’s investigation into charges of genocide of the ethnic Vietnamese minority in Cambodia conspicuously excluded the Khmer Rouge’s mass killing of 3,000 Vietnamese citizens across the border in Vietnam which triggered the Vietnamese invasion of Cambodia. As former Vietnamese President Lê Ðức Anh noted: “Truthfully speaking, we were also the victims of Pol Pot’s genocide. When they came across into An Giang, our fellow countrymen were horribly massacred. But for our own sake, for the greater duty, because of major issues, we must let it go.”

The continued freedom of the lower-level Khmer Rouge perpetrators has been a source of great ire to the genocide survivors. While it’s true that the ECCC’s Case 001 was of Kaing Guek Eav, a mid-level functionary who was convicted in 2010 of “war crimes, crimes against humanity, murder and torture,” every other lower-level perpetrator remains unprosecuted for their crimes. This is particularly egregious given that Khmer Rouge perpetrators have openly discussed their horrific crimes in documentaries like Rithy Panh’s S-21: The Khmer Rouge Killing Machine and Thet Sambath’s Enemies of the People. Indeed, such impunity continues to cause psychological distress for the survivors who have to live alongside the perpetrators in their communities. As David Scheffer explains, this significant limitation of the ECCC’s scope is the “the negotiated reality of this particular tribunal,” which is a hybrid court that was formed with the cooperation of the Cambodian government. Cambodian Prime Minister Hun Sen has already declared that “no more suspects should be prosecuted,” on the basis that “such action could cause unrest.” Should no further cooperation from the Cambodian government to the ECCC be extended, Case 002/02 will be the court’s final case.

In spite of this significant limitation to the ECCC’s work, Peter Maguire reminds us that the detailed body of evidence amassed by the court has effectively created “an unassailable historical record that will withstand the test of time and make historical revisionism virtually impossible.” This is especially important in Cambodia as the lack of education about the Khmer Rouge period has resulted in confusion among the post-genocide generations about what actually happened during that period. This has led to genocide denial as well as the politically-expedient scapegoating of foreign countries for the mass killings (Lim, 2010; Lim, 2013, p. 66).

The collection of evidence for the ECCC was a grueling and painstaking process. As genocide investigator Craig Etcheson explains, the local and foreign experts who investigated the Khmer Rouge’s crimes faced a “mind-boggling” challenge since “every minute of every day during the three years, eight months and 20 days of the Khmer Rouge regime, everywhere in Cambodia, crimes were being committed” — including “murder; extermination; slavery; torture; illegal confinement; mass expropriation of property; religious and political persecution; gender crimes including rape and forced marriage; deportation; forced transfer; war crimes; and genocide.”

Thanks to the work of these investigators, in 2007 the ECCC received an introductory submission from the prosecution “that was more than 50,000 pages long,” and which served as the basis for the “complex and lengthy judicial investigation that took nearly three and a half years to turn the introductory submission into cases 001 and 002, and order them for trial.”

In international perspective, the conclusion of Case 002/02 sets a legal precedent that warns leaders who are responsible for or who are considering committing crimes against humanity or genocide that they may eventually face a reckoning for their crimes, even if — as in the cases of Nuon Chea and Khieu Samphan — this reckoning only arrives decades after the crimes have been committed. As Ly Sok Kheang points out: “We need to show the world that even if it takes a long time, we can deliver justice.” Close to Cambodia, while the ethnic Rohingya who have escaped what UN investigators have described as “war crimes, crimes against humanity and genocide” in Myanmar may not realistically expect to find justice in the near future, the ECCC’s final verdicts suggests that such justice may yet come should the political circumstances become favorable.


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