SPECIAL FEATURE: Killing fields justice: A witness to history being made

Nuon Chea, aka ‘Brother No. 2’; Former Khmer Rouge head of state Khieu Samphan; Former Khmer Rouge Foreign Minister Ieng Sary

Thursday, 08 December 2011
Christopher G Moore
The Phnom Penh Post

At 9.00am, Monday, 21 November 2011, the beige curtains were slowly peeled back before an audience of roughly 600 people. The moment was like something out of The Wizard of Oz: the expectation of what lies behind the levers of power inevitably results in disappointment.

Three men in their 80s sat on the right side of the chambers. Each of the trio was charged with crimes against humanity, genocide and violations of the Geneva Conventions. Along with Pol Pot, these men had been top Khmer Rouge policymakers. As the political architects of death that defined the Khmer Rouge, they were on trial before a court of law.

Seated with the accused, their lawyers, dressed in black gowns, listened to the charges against their clients. Uniformed security personnel kept the accused under a watchful eye. At 9.05am, everyone on both sides of the glass enclosure stood as seven robed judges filed in and took their places on the bench.

Four of the judges were Cambodian; the remaining three were from New Zealand, Austria and France. As the court was called to order, everyone in the court and gallery took their seats. Case 002 had commenced. History was being made. As a law professor and lawyer, I have experienced the ritual of courtrooms in Canada, the United States, England, Malaysia and Thailand, with the opposing counsel at their tables, the judges on the bench and the accused in the dock.

Courtrooms are a form of ancient theatre, where the players have defined roles and the procedures are formal and the decor somber. Objective, fair, rational decision making is the premise for the deliberation. Justice is the goal. Everyone is assigned a role to play. The Extraordinary Chambers in Courts of Cambodia (ECCC) was specifically built for the trial of the men and women who occupied leadership positions during the Khmer Rouge reign of terror.

The courtroom physically separated its participants and the audience with a large wall of glass. Inside the fishbowl were the officials, judges, lawyers and security personnel. Courts are public storytelling venues. The prosecution carries the burden of telling the story to establish guilt. On this Monday, the prosecution laid out its case.

On the Tuesday, they made opening arguments in their own defence. They denied their responsibility for the crimes for which they were accused. As the trial proceeds, they will call witnesses and enter evidence to establish a counter narrative, such as that they acted to repel foreign invaders and to safeguard Cambodia.

Over the months and years to follow, the prosecution will introduce evidence supporting the charges. Then, the accused will be given an opportunity to present his or her side of the story. They continue to refuse to accept that they did anything wrong. This should come as no surprise, as it remains consistent with the mindset that formulated the policies for the killing fields.

I hadn’t come here to witness a “normal” murder trial. Not even the trial of the worst serial killer approached the body count attributed to the policies of these three men. Their crimes were an order of magnitude beyond anyone’s experience of homicide cases.

The systematic killing saw the scaling of murder to an industrial level. Men, women and children by the truckload were murdered day after day, for years, with no break between the killings. I observed the accused over the course of the proceedings as the Cambodian co-prosecutor read her opening statement.

The audience on opening statement was filled with ordinary Cambodians. They had come to witness the Khmer Rouge leadership, whose policies had visited death upon nearly every Cambodian family.

Ordinary Cambodians, students, relatives of victims and survivors all sat side by side in the audience to gaze upon the faces of the men who had unleashed the nightmare. The proceedings were also broadcast throughout Cambodia.

People in the remote countryside and in the cities and towns could watch on television or listen on the radio. The entire population of Cambodia finally had their chance after 32 years to hear details of the charges laid against the three accused.

This was far more than a legal proceeding; it was a place where those who had caused the killing fields would be judged. Not many ever thought that day would come. Or, if it did, that they would witness the proceedings. Yet, there they were, watching, remembering, coming to terms with the past, and searching the faces of those on the other side of the glass for answers.

Speaking truth of power has always been a rare event at any time, any place in the world. Those in power like to control information, shape the narrative and eliminate rival versions of the event. They use their power to control, monitor and supervise the movement of millions of people. Most of the time, such power operates virtually undetected in the background. We hardly notice the way government policies require us to move one way as opposed to another. When power goes off the rails, and murder becomes the policy, the role of Khmer Rouge leaders becomes a powerful parable of the nightmarish hell that follows.

Those who have sought to challenge authority historically have paid a heavy price. The case of Cambodia illustrates what happens when power and authority become detached and unbounded by normal values, ethics, beliefs or customs and descends into a vast killing machine. When I first traveled to Cambodia in March, 1993, it was as a correspondent to cover the UNTAC operation.

From March 1992 to September 24 1993, about 22,000 troops from around the world were sent to police a process of monitoring a ceasefire, overseeing elections and political rehabilitation.

Civil war continued, with the Khmer Rouge holed up in the north-western part of the country near the Thai border. It had been 14 years since the Khmer Rouge had been chased out of Phnom Penh.

UNTAC forces created a platform of stability essential to rebuild a new government structure and hold elections. The absence of peace, which lasted for years after UNTAC left, worked to the advantage of the Khmer Rouge by delaying their day of reckoning.

What no one envisioned in 1993 was that those responsible for the Khmer Rouge regime would be held accountable for their crimes against humanity and genocide. More than 18 years after I first reported on the UNTAC operation in Cambodia, I returned to witness the opening day of Case 002 in a hybrid court.

The structure, operation and selection of the court personnel is an experiment. The hybrid court is the result of a joint venture, bringing together international judges and principles of laws together with those of Cambodia. The intention was to create a venue that had legitimacy based on universal principles and recognised Cambodian local laws, values and interest.

Legitimacy is the key requirement. The court has to be accepted, not just by the international community, but also by Cambodians. The ECCC is UN-supported and funded, but established by Cambodian legislation. Can such a hybrid judicial system fulfil its promise to deliver justice that will satisfy the international community without destabilizing the political realities in contemporary Cambodia? The trial is a test of whether such a court structure is workable.

The alternative would have been for the accused to be sent off to The Hague for trial. While that might be a better guarantee to enforce international legal principles, it would have deprived the victims and their families of an opportunity to witness the trial first hand, to see for themselves the faces of the accused.

Also, the existing court structure has come up with a unique blending of public and private interests. The proceedings are inclusive in a way that hasn’t been attempted before in war crime trials. In Cambodia, thousands of individual civil complainants have lodged their cases with the courts.

The civilian cases will proceed along with the public cases before the same panel of judges. For Cambodians, Case 002 signals a significant political message. High-level government officials can be made to stand trial for certain types of policies.

On opening day, that message was graphic: the Khmer Rouge policymakers were in the dock. They had been arrested and detained. They were being compelled to explain their actions and rebut evidence of their crimes.

In many parts of the world, Southeast Asia included, the highest levels of political leadership have remained above the law and untouchable. For crimes against humanity and genocide, their traditional shield of immunity had now been stripped away. That is in itself a breathtaking idea for many in Cambodia and the region.

Previously, there had been no mechanism to make the political strongmen yield to principles of fairness, justice and equality. Policies by such leaders were left unchallenged, or those who sought to challenge them were imprisoned, exiled or murdered. On Monday, November 21, history turned a page on such immunity. Those who were too powerful ever to be questioned before were now standing trial, and facing life sentences if convicted.

The history of the Khmer Rouge is often reduced to a discussion of cold numbers. Pol Pot was Brother No 1. Nuon Chea, Brother No 2, was on trial. The designation of the cases brought before the ECCC were talked about in short-hand numerical code: Case 001 resulted in a conviction. Case 002 was for the policymakers.

Cases 003 and 004 were for the operational commanders in the field. Journalists, court officials and judges resort to the number game when discussing the history of the cases.

“It is doubtful 003 and 004 will proceed,” was a frequently voiced opinion among the court officials and journalists I spoke with. “Number 002 is the essential case as it focuses on those responsible for the Khmer Rouge’s policies.”

The number of people who died during the Khmer Rouge period is estimated to be between 1.7 and 2.2 million people: starvation, disease, exhaustion and execution. Eight hundred thousand are thought to have been executed. Our top mathematicians, like Professor John Paulos of Temple University, warn newspaper readers to be on guard when journalists use big, round numbers.

We must be cautious with such numbers, knowing the potential for inaccuracy is great. Let’s be honest. We can’t ever know with certainty the real number of people buried in the thousands of killing fields inside Cambodia.

One court official told me that forced marriages (one of the charges under the category of Crimes against Humanity) numbered in the tens of thousands. Another said there were 350,000 such marriages.

There are reports of 250,000 women who were forced into marriage by the Khmer Rouge. The sad reality is no one can verify the numbers or, in the case of forced marriages, the range of numbers at issue. The overall death toll of Cambodians during this period is another example of a large number range. So many Khmers and ethnic minorities died during the Pol Pot period that the best estimate of death has nearly a 30 per cent margin of error.

Another number is that 25 per cent of the Cambodian population during this period lost their lives. Again, no one knows or will ever know the real figure. Numbers are also an abstraction.

They represent people and lives, but they don’t have faces, families, dreams, hopes, friends. The shadows of the real people are in the distance behind the numbers. It is useful to place the 25 per cent death rate into a larger, global perspective. Killing 25 per cent of the current population of the United States translates to more than 70 million Americans dead, 300 million Chinese and another 300 million Indians, 20 million Germans, 17.5 million Thais and 47.5 million Brazilians. The numbers are staggering.

The Khmer Rouge targeted the educated urban populations, lawyers, judges, doctors, businessmen, artists, writers, students, teachers, civil servants, intellectuals and monks.

There is a story of a Cambodian along the road when an official car pulled up along side. He used the French greeting bonjour to the occupants inside and was greeted back in French. Later, Khmer Rouge cadre arrived, arrested the man and he was subsequently executed.

As in George Orwell’s Animal Farm, some animals are more equal than others, some entitled to speak French, and, for others, French was a death sentence. One effect of killing this class of people was to cripple the ability to create an institutional mechanism to oppose state-sponsored murder. The Khmer Rouge ruthlessly killed all opposition.

The delay in justice is in part explained by the fact that the class of qualified people needed to administer justice was systematically eliminated. It wasn’t only that the justice system collapsed, but also that the network of people who staffed the previous political, social and economic system had been exterminated.

To this day, there are very few university-trained judges in Cambodia. The damage done by the Khmer Rouge has not been fully repaired after more than a generation. One purpose of this type of international trial for war crimes is to provide psychological aid and comfort to the traumatised survivors. It isn’t simply the guilt of the parties charged, but a way for the victims to come to terms with their past. The big questions are asked during such a trial.

Who among the leaders was responsible for the policies and who should be held accountable? What is the truth behind conflicting evidence and what matter of justice is sufficient, given the enormity of the crimes?

On the morning of November 21, Cambodian co-prosecutor Chea Leang, a woman with a master’s degree in law from a German university, opened with the case against three senior Khmer Rouge leaders: Nuon Chea, Ieng Sary and Khieu Samphan. Her task was to outline the case to be tried over the next couple of years against the three accused.

A fourth accused, Ieng Thirith, wasn’t in the courtroom. A couple of days earlier, her case had been severed from the other three accused. The ECCC acted on evidence that Ieng Thirith suffered from Alzheimer’s disease, which interfered with her ability to participate in the proceedings.

Ieng Thirith studied English in Paris and was a Shakespearean scholar. In the preliminary proceedings before the start of the trial, Ieng Thirith had a history of ranting and raving in a King Lear-like way. Her voice won’t be heard during the current round of trials, given her mentally unstable condition.

Whether she will ever be tried is in doubt. With the exit of Ieng Thirith, that left three elderly men (all in their 80s) sitting motionless in the courtroom, listening to the litany of charges against them.

It was a chance to look directly at the faces of the men responsible for such death and suffering. They sat passively, expressionless, throughout the opening statement, as they listened to the charges brought against them.

There were no outbursts, no signs of emotional reaction. Nuon Chea’s eyes were hidden behind dark sunglasses. Like professional poker players, whatever they felt wasn’t expressed on their faces.

At an ECCC press conference on the Sunday before the trial, court officials estimated the length of the trial to be approximately two years. That is, if everything went according to plan. Add another year for the appeals process, and the final verdict shouldn’t be expected before November 2014.

Given the age of the trio, it will be a race against time to see justice is done before actuarial realities come into play. Pol Pot, Brother No 1, died in 1998, a true believer and defiant to the end. It remains to be seen whether his colleagues on trial will take a similar stance on their involvement in policy formulation and implementation, or whether they will, like Duch, the head of the infamous S-21 security centre, admit their guilt. By day two, it was clear the three men, like Pol Pot, would not admit guilt and defend their actions.

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Part two will run in tomorrow’s Post. Christopher G Moore is the author of 23 novels, including Zero Hour in Phnom Penh.