The Curse of a Nation

GRIM REMINDER: Skulls of Khmer Rouge victims.

CHARGED: From left, Kang Kek Ieu (aka Duch, was sentenced to 30 years in July), Khieu Samphan
CHARGED: From left, Nuon Chea, Ieng Sary and Ieng Thirith.

The second trial of Khmer Rouge leaders is due to start, and for some, it's none too soon

26/09/2010
By Luke Hunt
Bangkok Post

"The likelihood that these four individuals will see the beginning and the end of their trial is depressingly low" - Theary Seng, a US-trained lawyer who survived the Killing Fields as a child

The Khmer Rouge tribunal in Cambodia has indicted the last surviving senior leaders of the regime and charged them with crimes against humanity, breaches of the Geneva Conventions, genocide and murder, torture and religious persecution.

The final four - Khieu Samphan, 79, ex-foreign minister Ieng Sary, 84, his wife Ieng Thirith, 78, and Nuon Chea, 84, the ultra-Maoist's second-in-command - are blamed for the deaths of perhaps a third of the population and will front a trial reminiscent of former Iraqi dictator Saddam Hussein.

When the ousted president swung miserably from the gallows almost four years ago there was no shortage of political leaders - past and present, East and West - who were willing to express their dismay, or a touch of glee. The political point scoring has abated since, however. Among the least noted was Nuon Chea, who defended the former Iraqi leader and claimed "Saddam Hussein had a spirit of national love". His comments were not surprising.

Both men had a habit of cloaking their actions, like genocide, in nationalistic euphemisms.

It's a line that goes something like: "What was done was in the interests of all Iraqis - read Cambodians - and was necessary to rid Cambodia - read Iraq - of the evil outside forces that threaten our very existence."

In Cambodia, justice has found some traction for crimes committed more than 30 years ago. In July, Kang Kek Ieu, also known as Duch, was sentenced to 35 years in prison for his role as commandant of the S21 torture and extermination camp.

But where the trial and execution of Saddam Hussein was as swift as it was cruel - he was caught, tried for the slaughter of 148 people and hung inside four years - the same still cannot be said for the final four Khmer Rouge leaders or the Cambodian people.

The tribunal is again being seen as delayed. Insiders at the Extraordinary Chambers for the Courts in Cambodia (ECCC) had expected an indictment and initial hearing this year before Case 002 started in earnest by early 2011. Their trial will now not get underway until the middle of next year at the earliest and former victims are again having their anxiety buttons pressed with fears that the elderly cadres could die before being brought to justice, returning to haunt them.

Kaing Guek Eav, aka Duch was sentenced to 30 years in July.

Victims said convicting Duch - who apologised and co-operated with the tribunal over the deaths of more than 12,000 people - was welcomed, although that trial was always a sideshow to the main event.

Real justice lies squarely in convicting the final four, who have denied any wrongdoing.

"As a civil party to this Case 002, the delays are disturbingly worrisome to me and to other KR victims, that these aging, ailing senior Khmer Rouge leaders will not see the light of justice but will die more peacefully in modern comforts than their victims," Theary Seng from the Center for Justice & Reconciliation told Spectrum.

The case file consists of 350,000 pages. There are 46 interviews with the accused, more than 1,000 interviews with witnesses and civil parties, another 11,600 pieces of evidence, and once started the trial could drag on for three years before appeal.

Allegations include the deaths of up to two million people through starvation, illness and execution between December 1975 and January 1979 when the ultra-Maoists ruled Cambodia.

They also abolished religion, property rights, currency and schools, then marched the bulk of the population from the cities into the countryside where they were forced to work on the regime's version of an agrarian utopia.

"The likelihood that these four individuals will see the beginning and the end of their trial is depressingly low," said Theary Seng, a US-trained lawyer who survived the Killing Fields as a child.

Ironically, the chances of any surviving Khmer Rouge leader being put in the dock wilted for more than two decades due to Cold War power plays when Western countries sounded a familiar tune, claiming continued recognition of Pol Pot was in their national interests.

That legitimacy lasted until 1993, when Cambodia's first elections were held, although internal conflict continued for another five years.

It was only after the fighting ended that moves to try surviving leaders started. However, bickering between the UN and Cambodian leaders dominated six years of tortuous negotiations.

Then allegations of corruption on the Cambodian side of the ECCC and a severe cash shortage plagued proceedings as Case 001 finally started in earnest, in 2009.

Along the way prosecutors and defence lawyers played for time while building their positions, arguing that any delays were natural and in the interests of justice and the Cambodian people.

Those natural delays, Theary Seng says, have "been encouraged and polluted by various invidious interests of this current ruling government, Cambodia's neighbours and larger geopolitics which run counter to the interests of the victims".

"The line between natural delays and the omission to expedite the process by actively working to assuage natural delays is vague; all to say, what is a 'natural' delay and what is not in this case is difficult to call."

Whether the foreign and local lawyers can set aside their differences is also a great unknown. This didn't happen with Duch, whose Cambodian lawyer Kar Savuth famously ignored directions from his French counterpart Fancois Roux as Case 001 was drawing to a close.

Cambodian judges were accused of stonewalling their foreign counterparts in the initial days of the trial, amid undue political influence being exerted by elements in the government which rights activists have claimed are trying to block the tribunal.

Some fear China - the only country to support the Khmer Rouge while they were in power and now a generous backer of Prime Minister Hun Sen and his government - does not see the tribunal as being in its national interests.

Chum Mey, one of the few survivors from the S21 prison and head of the Association for Peaceful Support of Victims of the Democratic Kampuchea Regime, said the tribunal must move swiftly for the Cambodian people, and importantly, for history's sake.

Long time observers have been gripped by the tribunal and the light it has shed on the inner workings of the highly secretive Khmer Rouge.

"I am very pleased with the indictment. We are worried that all four people are now very old. We are afraid that they will die and the information they have will be lost," Chum Mey told Spectrum. "The court must work hard to avoid the word 'injustice'."

A conviction against the belligerent and steely eyed Nuon Chea remains the ultimate prize. His defence will track Saddam Hussein and argue Pol Pot's closest ally only acted on behalf of all Cambodians and against the hostile outside forces who sought to control them.

"The people never used the word genocide. Only the invaders use the word genocide," Nuon Chea said during an interview shortly before his arrest.

It is also a well-worn argument that the Khmer Rouge was unjustly maligned by foreigners once their Cold War use by date had passed, and according to Theary Seng this will be used by the defence as a natural time consuming strand in the tribunal.

"The modern international justice system of acceptable standard requires time, but here, we have gone beyond acceptable delays," Theary Seng said.

If Nuon Chea and his cohorts succeed where Saddam failed and avoid their final day in court, then Pol Pot and his miserable band of thugs who ruled Cambodia with total abandon all those years ago will have carried the day. "Are we victims and civil parties worried? Absolutely! Disturbingly so!

"Our hopes and expectations have been raised at the prospect of seeing justice done, but these delays only chip away at that prospect," Theary Seng said.

"As we know, justice delayed is justice denied. We are heading down that road. It's a grim prognosis, I know, but it is a very realistic possibility which will be devastating to us survivors."