Thirty-four years ago on April 17, black-clad Khmer Rouge guerrillas walked into Phnom Penh and began nearly four years of terrible, terrifying rule, causing the deaths of nearly 2 million people and destroying the fabric of Cambodian society. Yet, for all that time, no justice has been served, even as five former leaders of the regime sit in a tribunal detention center.
Developments at the UN-backed, hybrid tribunal have raised questions about the court’s ability to deliver justice to victims of the Khmer Rouge: Prime Minister Hun Sen has said he would rather see the court fail than have indictments destabilize the country; the UN and the government can’t reach an agreement on how to handle nagging allegations of corruption; and prosecutors are at odds over how many people should even face trial.
The last one is a tough one. Cambodian prosecutor Chea Leang has said further indictments beyond the five currently in custody could lead to instability, while the UN-appointed prosecutor, Robert Petite, has advocated for more investigations.
“It is a line that is difficult to draw, sometimes, for prosecutors to proceed to a fairly worldly standard,” David Tolbert, a former UN adviser to the tribunal, told a forum in Washington recently. “But at the end of the day, it is a judicial judgment, and the arguments that have been put forward are not judicial.”
Caitlin Reiger, deputy director of the Prosecution Program and head of the Cambodia Program at the Center for International Justice, agreed.
“It is a matter for the judges to decide, based on, first of all, whether or not the evidence put before them is bared and whether the cases fall into their interpretation of the jurisdiction and the mandate of the court,” she told the forum, which was attended by academics, researchers and diplomats. “And the court mandate is explicitly [to try] senior leaders of the Khmer Rouge and those most responsible.”
The tribunal is undertaking its first trial, of former Tuol Sleng prison chief Duch, who, at 66, faces charges of war crimes, crimes against humanity, torture and murder. Duch, whose real name is Kaing Kek Iev, has been in custody since 1999, and his trial is the easiest to prosecute.
Trials for four more former leaders—‘Brother No. 2’ Nuon Chea, head of sate Khieu Samphan, foreign affairs minister Ieng Sary, and social affairs minister Ieng Thirith—have not been scheduled.
Hun Sen, who was once a Khmer Rouge cadre himself, says those five are enough, and more arrests could erode the fragile peace Cambodia has achieved since Khmer Rouge leaders and soldiers defected to the government as part of a peace plan in 1998.
Such statements, made “on an increasing basis over the last several weeks,” can undermine the credibility of the court, especially in Cambodia, where the judicial system is widely seen as politically influenced, Reiger said.
Cambodia has never had a reconciliation commission, as have other countries, so the tribunal, established in 2006, must function without interference if it is to deliver justice, Scott Warden, an expert on the rule of law at the United States Institute of Peace, told VOA Khmer.
“It is not just about getting a conviction for the senior people,” he said. “I think this is also an opportunity for the court to give a much larger story, to bring out testimony that otherwise wouldn’t be talked about.”
Meanwhile, allegations that Cambodian staff pay kickbacks in order to work at the court have sullied the reputation of the process, leading some donors to withhold funding and leading to a budget crisis on the Cambodian side of the tribunal.
Earlier this month, the UN’s senior legal adviser, Peter Taksoe-Jensen, failed to reach an agreement with the Cambodian government on how the court should tackle corruption allegations.
Cambodian officials wanted those who file complaints to be named; the UN maintains their identities must be protected. There is no indication of further talks, even as donors hold back their funding.
For now, the hope is that the five leaders under indictment will at least be tried, in a fair manner, contributing to the process of justice, a process that has proven elusive for three decades.