Almost 33 years after Pol Pot was driven from power by invading Vietnamese, his surviving lieutenants are about to see their day in court. Prosecutor Andrew Cayley is confident enough evidence exists to secure a conviction, while the defense teams have signaled that each of the accused are likely to adopt their own strategy in fending off charges of genocide and crimes against humanity.
“This is the trial the Cambodian people have been waiting for, where those alleged to be the senior leadership of the Khmer Rouge will stand trial accused of having made decisions and devised policies that led to crimes throughout Cambodia,” says tribunal spokesman Lars Olsen.
Securing justice for the 1.7 million to 2.2 million people who died, and the millions more lucky enough to survive the Khmer Rouge, has been a huge undertaking. Khmer culture was obliterated under the ultra-Maoists. Money was abandoned and cities emptied as millions were marched into the countryside to work as slave labor.
Hundreds of thousands were also condemned to death because they didn’t fit Pol Pot’s vision of a pure “Angkorian” society. In the death camps, women were mutilated, their babies taken and killed. Electric shock and water torture were common.
“We hope the start of the trial will further strengthen support for the trial proceedings among ordinary Cambodians,” Olsen says from the Extraordinary Chambers for the Courts in Cambodia (ECCC).
After a slow start, interest in the tribunal has risen sharply. Since the first trial was launched in March 2009, more than 100,000 Cambodians have visited the courts. The initial hearings have rated well on government TV, and Olsen says he expects the 500-seat court room will be filled every day the tribunal sits. Meanwhile, the largest commercial TV network in the country is planning to broadcast Case 002 live.
“This clearly illustrates that there is great interest in the trial,” he adds.
While local interest has vindicated the initial decision to proceed with the trial, the tribunal has still had its share of foreign detractors.
Ever since its inception – which began with a call for help by Cambodian Prime Minister Hun Sen to the United Nations more than a decade ago – the line-up of critics has ballooned.
The loudest have been Western lawyers, NGOs and human rights groups, alongside expatriate Khmers and relatives of non-Cambodian victims who ventured in once the tribunal began in earnest with Case 001, the trial of Kaing Guek Eav, also known as Duch, who ran the S-21 extermination camp.
It was here that intellectuals were classified as such simply because they wore glasses. Prisoners were kept alive long enough to have their blood drawn for use in field hospitals. Others were chained to beds and decapitated. At Choeung Ek, prisoners dug their own shallow graves, were bludgeoned with an ox cart axle, had their throats slit and bodies dumped.
Few of the tribunal’s critics had much do with Cambodia before Case 001 got underway, yet they often insist they know best for a tribunal dedicated to establishing responsibility for an extraordinary slaughter that took place over a period of less than four years amid a war that lasted more than three decades.
Much of the frustration centers on Cases 003 and 004. The Open Society Justice Initiative, funded by Wall Street financier George Soros, is one disappointed observer, and wants the United Nations to establish an inquiry into allegations of judicial misconduct involving another five Khmer Rouge figures.
It says the United Nations must act if it’s to “salvage the reputation” of the tribunal “as a credible judicial institution.” Some have claimed Hun Sen’s government has interfered with due process, others say some NGOs are using the ECCC to grandstand and for self-promotion.
Olsen is diplomatic in saying there has been much debate on the question of potential additional suspects to be prosecuted.
“It will be up to the co-investigating judges or in case of appeals, the Pre-Trial Chamber to decide on the future of those cases. But it is of course important for the credibility of the court that all cases are being treated independently, and in accordance with the legal framework governing the ECCC proceedings,” he says.
When initial negotiations were established for the tribunal, several key points were struck between Phnom Penh, the United Nations and Western governments – chiefly the United States, Australia and France – that allowed the trial to proceed.
This included a decision that only crimes that were committed within Cambodia's sovereign borders when Pol Pot was in power between April 1975 and January 1979 would be heard, and the main suspects – those deemed most responsible – would be tried for the grisly crimes that did occur.
This effectively shielded foreign players of the time, including U.S. Secretary of State Henry Kissinger, from the tribunal's reach. It also defined those most responsible as those who served on the Standing Committee of the Central Committee in Democratic Kampuchea.
It was here that government policies were written and deployed, and, prosecutors will argue, resulted in the deaths of about one-third of Cambodia’s population.
Of the nine original members of the Standing Committee, only Brother Number Two Nuon Chea, one-time head of state Khieu Samphan, former Foreign Minister Ieng Sary and his wife Ieng Thirith survive.
During the initial hearings, held in June, all indicated they would plead not guilty. Ieng Thirith has claimed she never had any real say in the running of Cambodia under Pol Pot. This remained the basis of her defense. However, a psychiatric report has ruled today that she isn’t fit to stand trial when the substantive hearings begin on Monday.
As a result, the ECCC on Thursday issued a stay of proceedings against her indictment and said she would be released from detention. The court also said she would be monitored and proceedings could resume at any stage if there’s a change in circumstances.
Nuon Chea’s lawyers have served notice they will attempt to expand the court’s mandate and argue that Cold War power plays and the likes of Kissinger were crucial in determining what happened when the Khmer Rouge deployed their policies aimed at establishing an agrarian utopia.
Ieng Sary’s team say a pardon granted by King Norodom Sihanouk in 1996 as part of the peace deal that ended the civil war two years later meant he shouldn’t face any charges due to double jeopardy. Khieu Samphan is claiming his position within the Khmer Rouge as head of state was mainly ceremonial, and that he never fully understood what was happening in the countryside.
However, their defense will have to allow for a significant change, designed to speed up the trial process amid concerns the tribunal has taken far too long. Case 002 is to be split into several mini-trials, designed to make the proceedings more manageable, with the first trial to form some of the basis of subsequent trials.
Olsen says the first hearing would deal with the Khmer Rouge takeover in Cambodia and the establishment of the Democratic Kampuchea government. This includes the roles played by each of the four accused and the forced movement of people from Phnom Penh to the countryside immediately after the invasion. A second phase of the trial will examine the forced movement of people from September 1975 to 1977.
It was during this period that hundreds of thousands allegedly died through starvation and illness bought on by the deportation of millions from the cities to labor camps.
“If proven, these actions may amount to crimes against humanity. The other charges in the indictment such as establishment of security centers, work collectives and killing sites will be subject to subsequent mini trials,” Olsen adds.
It took more than a year to convict Duch in Case 001 – the first successful ECCC prosecution – after he pleaded guilty. As such, nobody is too sure how long Case 002 will last. Still, finding justice for those who died all those years ago remains a long and arduous process.