Noah Novogrodsky: Cambodian justice a long time coming

Photo: Khmer Rouge leader Nuon Chea (centre), is escorted by Cambodian police officials to the Extraordinary Chambers in the Court of Cambodia (ECCC) in Phnom Penh, September 19, 2007. STR/AFP/Getty Images.

Friday, September 28, 2007
National Post (Canada)
Full Comment

"A day late and a dollar short, the tribunal is long overdue"

Two weeks ago, in Pailin, a town on the Thai-Cambodia border, Cambodian special forces and western security personnel arrested 82-year-old Nuon Chea, the Khmer Rouge’s “Brother Number 2.” Nuon Chea was Pol Pot’s trusted lieutenant and the highest ranking survivor of the Khmer Rouge inner circle. During the three years and eight months of Pol Pot and Nuon Chea’s rule, an estimated 1.7-million Cambodians were killed, almost 20% of the population.
Nuon Chea was flown to Phnom Penh to stand trial before the recently convened Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid tribunal that mixes domestic and foreign law as well as local and international prosecutors and judges. The $56-million court was built with foreign funds to try those most responsible for the “Killing Fields.”

The fact that a court exists to try any of the Khmer Rouge leaders is a minor miracle. It has been 30 years since the crimes were committed and more than 10 years since Cambodia’s then co-Prime Ministers requested United Nations assistance in organizing a tribunal to try the Khmer Rouge. Since that time, Pol Pot has died and the UN has engaged in a decade-long dance with Cambodian officials, many of whom are adamantly opposed to a tribunal. Hun Sen, Cambodia’s strongman Prime Minister, has parlayed the international community’s interest in a trial into endless negotiations about the structure of the Court, the financing of the effort and the scope of prosecution. In the end, Hun Sen made certain that the international community foots the bill for proceedings and that neither he nor his cronies will be prosecuted; the court can only prosecute crimes committed during the 1975-1979 period of Khmer Rouge terror and will almost certainly limit itself to Pol Pot’s senior deputies. In the meantime, the notorious Ta Mok, one of Heder and Tittemore’s seven candidates, died awaiting trial.

How will the Extraordinary Chambers fare against this backdrop? The mistakes and achievements of previous international tribunals suggest there are three interrelated keys to success. The first is to move quickly and fairly. Kang Guek Eav, also known as Duch, the commandant of Tuel Sleng prison in Phnom Penh, has been under arrest for years but was only recently charged. Nuon Chea and other future defendants must be charged promptly, they should be permitted to select the counsel of their choice and those lawyers ought to have access to their clients and adequate resources to mount a credible defense. But in view of the defendants’ age, there is no time for a Slobodon Milosevic-style defence that drags on indefinitely. As it is, the ECCC is occurring far too late to try most defendants and the question is how to salvage a process before the living victims, witnesses and suspects are gone.

The second feature to remember is that the ECCC is for Cambodians. Although the tribunal has the opportunity to make new law on the crime of cultural genocide, the effect of domestic amnesties and starvation as a war crime, the Court’s value will ultimately be measured by the effect it has internally. By training judges and prosecutors and collaborating with experienced foreign lawyers, the trials might offer a new definition of justice in a country where the judiciary is marked by corruption and incompetence. It may be that no single tribunal can create the rule of law, but the resources pouring into Phnom Penh should ensure that the process is transparent, that survivors receive appropriate psychological support and that the defendants are treated with the dignity they denied their victims. Better still, if the Extraordinary Chambers is embedded into the local justice system and international standards are adopted domestically, the tribunal may stimulate law reform or become the touchstone for future criminal trials.

The third lesson is that how the tribunal is perceived matters as much as developments inside the courtroom. The Extraordinary Chambers represent more than an exercise in guilt-determination. It is international recognition of the suffering Cambodians endured and their principled determination to face past horrors. Until recently, Cambodian text books made no mention of the Khmer Rouge era. It has been left to an NGO, the Documentation Center of Cambodia, to gather testimonials, assemble records and exhume bodies buried in the killing fields. The tribunal has the opportunity to create an authoritative record that amplifies the work of the Documentation Center, assigns blame to individuals and works to de-stigmatize the rest of Cambodian society. Without demonstrable results, the skepticism of Cambodians who trust neither their own government nor the international community and are wondering why the millions aren’t being spent on roads, will only increase.

A day late and a dollar short, the tribunal is long overdue. Pol Pot’s death in 1998 deprived Cambodians of the opportunity to hold one of the worst abusers in modern history responsible for his crimes. The arrest of Brother Number 2 offers another chance to seek a measure of justice, this time from the second in command.

Noah Novogrodsky, the Director of the International Human Rights Program at the University of Toronto Faculty of Law and a Visiting Scholar at Georgetown University Law Center, has been a legal trainer with the Documentation Center of Cambodia.