Slowly, justice approaches for Khmer Rouge killers

By Helen Jarvis

Thirty-three years ago — on April 17, 1975 — the people of Phnom Penh lined the streets of Cambodia’s capital to celebrate the end of civil war and welcome the victorious Khmer Rouge (KR) troops. Photographs of that day show optimism and relief on the faces of the crowd, as they waved white cloths and offered cigarettes to the incoming troops.

These troops, showing the ravages of years of privation and danger on the battlefield, did not return the offers of friendship, but within hours began to drive all the residents out of the city. More than 1 million residents and war refugees from the countryside were expelled, carrying whatever clothes, bedding and food they could, along with their babies and elderly, with no opportunity for families to group together, no plan of where to go and no transport or assistance for the sick and infirm.

Residents of Phnom Penh and other cities were not permitted to return, and nothing was ever the same again. For the next three years, eight months and 20 days, Cambodia (renamed “Democratic Kampuchea”) was subject to totalitarian and punitive rule in the name of a “super great leap forward”. During this short time, over a quarter of the population perished — around 1.7 million people — from hunger and overwork, from untreated or mistreated disease or from torture and execution.

As well, the KR launched frequent brutal military assaults into southern Vietnam. On December 25, 1978, 150,000 Vietnamese troops and 15,000 Cambodian soldiers who had fled to Vietnam launched a counter-offensive. The KR fled in disarray; Phnom Penh was liberated on January 7, 1979. The new Cambodian government began rebuilding a shattered country — no electricity, no running water, no sanitation, no money and no markets, very little food or transport and a population traumatised and severely malnourished.

Even in such chaos and destitution, the new government began almost immediately to record and bring some judicial accounting for the crimes committed by the KR. Prisons and mass graves throughout the country were documented, and the S-21 prison in the centre of Phnom Penh, where some 15,000 people are believed to have been held, interrogated and tortured prior to execution, was turned into the Tuol Sleng Museum of Genocidal Crimes. The archives from S-21 were mainly intact, including thousands of “confessions” extracted under torture, lists of prisoners admitted and the dates of their execution, and the well-known heart-rending photographs of each prisoner. While most of the prisoners at S-21 were KR cadres accused of betraying the revolution in some fashion, the photos also show babies, young children and captured Vietnamese soldiers.

In August 1979, a People’s Revolutionary Tribunal was convened in Phnom Penh. Two KR leaders (Pol Pot and Ieng Sary) were tried in absentia and sentenced to death for genocide. However, the two continued to lead the KR exile government, and later the “Coalition Government of Democratic Kampuchea”, which, unbelievably, continued to hold the Cambodian seat in the United Nations until 1991.

Cambodia had been liberated by the wrong country. Diplomatic recognition and development and even humanitarian assistance were denied to the real government, while diplomatic support and even military supplies and equipment were channelled to the refugee camps along the Thai-Cambodian border, controlled by the KR or their royalist or pro-US partners, who carried out a decade-long military campaign.

While this military campaign failed to overthrow the new government, it cause significant death and destruction, including the laying by all sides of an estimated 6 million landmines. The diplomatic campaign was even more deadly as the Cambodian people suffered economic and political boycott and isolation. In 1986, for instance, the 300,000 refugees on the border were receiving annual aid of US$142 per head from the United Nations, while the 7 million people inside Cambodia received a mere $1.50 each. The country survived and revived thanks to military and economic assistance from Vietnam (itself struggling to rebuild after the US war) and from Eastern Europe, until the collapse of the Soviet Union.

By 1989 it was clear that the military stalemate had to be resolved by political means, and so began negotiations that led on October 23, 1991, to the Paris Peace Agreements and the intervention of UNTAC (United Nations Transitional Authority in Cambodia) to conduct national elections.

The Khmer Rouge failed to carry out a single one of its obligations under the agreements and continued to wreak havoc, albeit on a smaller scale, including murdering ethnic Vietnamese residents and even some of UNTAC’s soldiers and civilians. In 1993 the KR withdrew its representatives from Phnom Penh and boycotted the election. A coalition consisting of the royalist FUNCINPEC and the Cambodian People’s Party (evolved from the forces that overthrew the Khmer Rouge in 1979) was elected and has governed Cambodia for the past 15 years. General elections were also held in 1998 and 2003, with another due in July.

Between 1993 and 1998, the government managed to bring down the KR both militarily and politically. Ieng Sary led a third of the KR troops to surrender in late 1996, and was pardoned from his 1979 conviction.

In 1997 Pol Pot launched a murderous assault on some of his fellow KR leaders. He was captured by a rival faction, tried and imprisoned under house arrest, where he died of never disclosed causes in April 1998. On Christmas Day 1998, the two main surviving leaders, Nuon Chea and Khieu Samphan, surrendered to the government under Prime Minister Hun Sen.

In mid-1997 the Cambodian government requested assistance from “the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979”. In December 1997, for the first time, the UN General Assembly recognised and denounced these crimes, and asked the secretary-general to respond positively to this request.

So began a long period of negotiations between the UN and the Cambodian government. The UN wanted to establish an international court outside Cambodia, along the model of the International Criminal Tribunal for the former Yugoslavia (ICTY), while the Cambodian government wanted a national court with international participation and characteristics. In the end a hybrid court was established, with both Cambodian and international judges, prosecutors and staff and applying both Cambodian and international law. The Extraordinary Chambers in the Courts of Cambodia (ECCC) functions under the Cambodian civil law system, largely inherited from France, the former colonial power.

International pressures limited the ECCC’s jurisdiction to the period 1975-79, so those who may have brought about conditions that gave rise to the Khmer Rouge, and those who backed them militarily and diplomatically during the 1980s, will not appear before the ECCC. (In 1969-70 the US had carpet-bombed parts of the country, and again in 1973 its B-52s had pounded Cambodia with more than 240,000 tonnes of bombs — 50% more than the Allies dropped on Japan during the second world war.)

As the New York Times put it on June 24, 1997: “All Security Council members might spare themselves embarrassment by restricting the scope of prosecution to those crimes committed inside Cambodia during [1975-79].”

The ECCC is also to try only “senior leaders of Democratic Kampuchea” and “those most responsible” for serious crimes — under international law for genocide, crimes against humanity, war crimes, crimes against cultural property and crimes against internationally protected persons; and under Cambodian law for murder, torture and religious persecution.

Five persons have been charged and placed under provisional detention: Kaing Guek Eav (known as Duch), who was director of the S-21 prison; Nuon Chea, often called Brother Number Two, the former president of the National Assembly; Ieng Sary; his wife Ieng Thirith, former minister for social welfare; and Khieu Samphan, former head of state. The first trial, of Duch, is expected to begin late this year. Meanwhile, the ECCC has been hearing various appeals from those detained.

It has been a long wait for justice, and whether it will be achieved is still in question. During these 33 years, not only did Brother Number One (Pol Pot) die, but so did other potential defendants, and many witnesses and victims. Those now in detention are old, and some in frail health.

The ECCC is also facing an imminent financial crisis. Involving international judges, prosecutors and staff is expensive. The ICTY now costs over US$150 million a year. The ECCC was originally funded for three years at a projected total cost of around $60 million but is now projected to require more time and considerably more funds. The Cambodian component of the court was due to run out of funds at the end of April, but has been given a further three months’ grace by changes in the exchange rate between the euro and the US dollar, and by a grant from the Australian government of A$500,000. The United Nations side has funds to last only until later this year.

However fast the court works now, it cannot make up for the long years in which the KR was sustained and protected. Still the Cambodian people watch and hope that those responsible will not cheat justice.

[Helen Jarvis is the chief of public affairs of the ECCC. She is the author, with Tom Fawthrop, of Getting away with genocide?: Elusive justice and the Khmer Rouge tribunal, published in 2004 by Pluto and UNSW Press.]