Why Cambodia’s Khmer Rouge war crimes trial is endless — and useless

Ang Udom (left) and Michael Karnavas (right), international co-defence lawyers for the late former Khmer Rouge foreign minister Ieng Sary, pray during a ceremony at Ieng Sary's house in Malai, on March 21, 2013. (TANG CHHIN SOTHY / AFP/GETTY IMAGES)

Lawyer Michael Karnavas discusses the future of the tribunal after the death of Khmer Rouge minister Ieng Sary.

Sun Mar 31 2013

By Daniel Otis

Special to the Toronto Star (Ontario, Canada)

PHNOM PENH, CAMBODIA—The recent death of Ieng Sary, a former Khmer Rouge foreign minister, leaves only two defendants at the tribunal tasked with trying Khmer Rouge leaders for genocide, war crimes and crimes against humanity.

Since its inception in 2005, only one person has been convicted by the tribunal, known formally as the Extraordinary Chambers in the Courts of Cambodia. With a judgment in the current case expected to take at least another year, it is possible that the remaining defendants — both octogenarians — will die before hearing their verdicts.

Meanwhile, despite international pressure, the Cambodian government has publicly expressed its desire to see the ECCC shuttered after the current round of proceedings. Two planned cases involving mid-ranking cadre will likely never go to trial.

Ieng Sary’s international co-lawyer, Michael Karnavas, sat down after his client’s passing to discuss the future of the ECCC. This interview has been edited and condensed.

Q: There have been accusations of government interference at the ECCC. How would you characterize this?

A: From the very beginning, I think the Cambodian government wanted to have some kind of trial just to say that they had one. At the same time, they wanted to oversee the process, the narrative and its scope by creating a system that would allow them maximum flexibility to control the (proceedings). So, if they heard something they didn’t like, or if proceedings were going in a direction they didn’t care for, or if the court was trying to investigate people that they think should not be indicted because that would touch upon sensitive events or certain individuals currently in high places, then they’d be able to stonewall or stall the proceedings. I think the government never had honest intentions to have a trial that would get to the truth.

Q: Can the ECCC be salvaged?

A: $170 million has been spent so far and we haven’t even finished. At the current rate, I think it’s going to be very difficult for the trial to end with both of the accused still there. That would mean one accused being tried to the tune of $250 million. By and large, the bench is incompetent. None of the judges — not a single one of them — have the sort of experience, knowledge and background for these kinds of cases. But, on the international side, you won’t be able to find experienced judges from other tribunals willing to come because of all the negative publicity that the ECCC has had. I have young lawyers saying they want to do internships with me, then asking if their future is going to be impacted by all of the negative publicity that is coming out of the tribunal. And these are interns!

Q: How do you think the ECCC will be viewed in hindsight?

A: The sad legacy of the ECCC is that all of the positive things coming out of it — some of the decisions and procedures have been very good from a legal standpoint — almost get lost in this cloud of controversy surrounding it, whether it’s corruption, incompetence or treating the national staff like indentured servants (many of them have not been paid since November). I think the ECCC is primarily a failure, but there still is time, maybe not to pull the rabbit out of the hat, but perhaps to sort of shift course and make this a better success.

Daniel Otis is a freelance writer based in Cambodia.