Khmer Rouge Trial Missing a Marquee Defendant

Former Khmer Rouge Head of State Khieu Samphan and deputy leader Noun Chea are seen in the courtroom during a public hearing at the ECCC. (European Press photo Agency/ECCC)

November 21, 2011
By Shibani Mahtani
The Wall Street Journal

More than three decades after the fall of the Khmer Rouge, the trial of some of its most senior surviving leaders – all adamant about their innocence – began today with one notable absence.

One of the four “inner circle” members of the regime accused of genocide and crimes against humanity was excused from the long-awaited trials. Ieng Tirith, wife of the regime’s international face Ieng Sary and herself minister of social affairs during Khmer Rouge rule, was deemed mentally unfit to stand trial due Alzheimer’s disease and ordered to be unconditionally released.

Though prosecutors have appealed the decision, it has raised yet again the question that victims and activists have long-feared: Will the remaining Khmer Rouge leaders fall prey to old age before they can be held to account for atrocities they are alleged to have committed?

“The impact of this long-delayed trial is a key concern,” said Ou Virak, president of the Cambodian Center for Human Rights. “At the current pace, at least one or two more of the accused are not going to see all of the trial played out.”

Ieng Tirith – a graduate of the Sorbonne in Paris and the first Cambodian to receive a degree in English Literature – was indicted for crimes against humanity, and alleged to be directly responsible for planning, directing, coordinating and ordering widespread purges. Her sister was married to leader of the regime, Pol Pot.

Judges on the tribunal unanimously found her to be mentally ill, but most Cambodian judges on the tribunal preferred that she be hospitalized and her condition reviewed in six months, rather than being released unanimously according to Clair Duffy, who is monitoring the court proceedings for the Open Society Justice Initiative. This is what the prosecution is appealing for.

The rest of the accused – her husband and the regime’s former foreign minister Ieng Sary; Noun Chea, the Khmer Rouge’s number two man after Pol Pot; and former head of state Khieu Samphan – are all older than Ieng Tirith (who is 79) at 86, 85 and 80 years old respectively. They are all alleged to be responsible for the death of an estimated 1.7 million people. Noun Chea, also known as “Brother No. 2,” was second in command to Pol Pot and is a graduate of Thammasat University in Bangkok, unlike many of the regime’s Paris-educated leaders.

After years of delays owing to both political and procedural reasons, many activists and victims say they are already disappointed by the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal in charge of the trials. In 1999 – two decades after the fall of the regime – a UN Group of Experts recommended an international tribunal, warning of political interference in the Cambodian court system, but the proposal was rejected by Cambodian Prime Minister Hun Sen. After years of negotiations, the ECCC was set up in 2003.

“The process has been way too long, and will continue to take a long time,” said Mr. Ou Virak, whose father was killed by the Khmer Rouge before he was born. “The names of the three accused are all public names, names that the Cambodian people are used to hearing associated with the regime. We need to have a sense of justice and closure.” He expects the process to take at least another three to four years.

The release Ieng Tirith was ordered “unconditionally” by chamber judges of the tribunal, who cited the legal principle that all accused are presumed innocent until proven guilty.

“The release of Ieng Thirith is only one reflection of how incredibly late these trials are coming into place,” said Theary Seng, founder of the Cambodian Center for Justice and Reconciliation and herself, too, a victim of the Khmer Rouge regime, having lost her parents and spent five months in prison. She has withdrawn from the tribunal process, and instead put her energy into organizing public games of darts featuring the faces of the Khmer Rouge leaders along Phnom Penh’s riverfront – a “way of release” following victims’ frustrations with the trial process, mixed with “dark humor,” she said.

Some, though, say that the decision proves the court’s compliance with international standards of justice and fair trial.

“From a legal point of view, I was expecting this to happen” said Ms Duffy in an interview. She added that the decision, which may have been surprising to the public, was consistent with medical evidence and a good sign that the court was complying with international standards though it “compounds the concern” that justice for the victims will not be delivered before old age gets to the accused.

In a judicial process already mired by delays and controversy, many victims are already disappointed by their slow recourse to justice. But their disappointment could be even more pronounced if the Khmer Rouge leaders do not make it to the trial’s finish line.

“[Cambodians] will react more if the remaining three don’t see the end of the trial,” said Mr. Ou Virak. “They are so closely associated with the Khmer Rouge in the psyche of the Cambodian people”.

The trial commenced on Monday, Nov. 21.