ANALYSIS: Khmer Rouge trial opens; key charges might never be heard

Nov 21, 2011
By Robert Carmichael
DPA

Phnom Penh - The opening arguments in the long-awaited trial of Cambodia's surviving Khmer Rouge leaders began Monday, but given the ages of the three defendants and the length of the proceedings, there is a risk that serious charges might never be heard.

The complexity of the case combined with the health and age of the defendants, who range from 80 to 86, led the court to divide it into a series of mini-trials.

The first, which was expected to take two years, is to hear the limited charge of crimes against humanity in the context of two forced movements of population in 1975 during which tens of thousands died. They were aimed at turning Cambodia into an entirely rural nation.

The court envisages that subsequent mini-trials would look at war crimes, genocide and other crimes against humanity, such as murder, rape and torture, for the defendants' alleged roles in the deaths of up to 2.2 million people.

But there is no schedule for what crimes would be heard in the subsequent mini-trials, if they ever take place.

There are fears one or more of the defendants could die before the trial concludes, and among the charges that risk never coming before the court is a genocide charge over the Khmer Rouge's alleged efforts to exterminate two minority groups: Cham Muslims and ethnic Vietnamese.

Lyma Nguyen, who represents 43 ethnic Vietnamese clients, said if the genocide charge is not heard, the court must at a minimum tackle the forced deportation of ethnic Vietnamese to Vietnam.

She said the structure of the first mini-trial meant she had to manage the expectations of her clients who are, to her knowledge, the only ethnic Vietnamese the court has recognized as civil parties.

She said proper acknowledgment of the extent of the crimes the 1975-79 Khmer Rouge movement committed is 'essential for the historic record.'

'A genocide trial would not only be a manifestation of justice for my clients but a reminder, internationally, that there will not be impunity for perpetrators of genocide,' Nguyen said.

Lor Chunthy, who represents 223 Cham Muslims, said his clients simply want convictions, either on a charge of genocide or of crimes against humanity.

'The important thing for my clients is not about the charge of genocide itself,' he said. 'What they need is to see the charged persons punished. If it is for crimes against humanity then that is acceptable for them.'

Clair Duffy, a tribunal monitor with the non-governmental organization Open Society Justice Initiative, said the decision to break up the trial was sensible because the mini-trials allow the court to hand down acquittals or convictions as it proceeds.

Duffy said she was hopeful the Cham Muslims and ethnic Vietnamese would have the genocide charge dealt with. The judges left open the possibility that charges other than the two forced population movements could be included in the first mini-trial 'where circumstances permit.'

'This basically means that the trial chamber still could decide to hear genocide allegations against both or either group during the first phase of the trial if it deems it appropriate,' she said.

But should the UN-backed court fail over the coming years to examine all the crimes - whether for lack of donor funding or because the defendants die - that would tarnish its legacy because one of its aims is to provide a historical record of what happened under the communist Khmer Rouge.

'If people were targeted because of their ethnicity or religion, I think it's very important that [the] court tells that part of the story, and accurately,' Duffy said.

Prosecutor Andrew Cayley failed to persuade the judges that the first mini-trial should cover a much broader array of the crimes on the charge sheet.

'We believed that it would be preferable to try other charges first,' Cayley said.

He said the consequence of the current structure is that the tribunal must push ahead with the rest of the mini-trials once the first is finished - assuming there are still living defendants. Failing to do so would not address the 'heart of the criminality,' he said.

'I think and I hope that the donors understand that their commitment to this tribunal and to the victims and the people of Cambodia is to see that justice is done, not merely partially done,' he said