feer.com
May 2007
by Ron Gluckman From Cambodia in recent days came a rare reason for hope in the long-running quest to assign accountability to the Khmer Rouge, whose murderous rule in the 1970s caused the deaths of up to two million people, or 20% of the population. For decades its aged leaders have roamed free, while a tribunal court, mounted in partnership with the United Nations, sputtered along, staggering from controversy to stalemate.
The latest snafu saw international judges leave Cambodia in a huff in March after what many termed last-gasp meetings to resolve rules of operation for a court funded for $56 million over three years, with virtually no hope of meeting that time frame or budget. The latest sticking point was stiff fees the Cambodian bar planned to levy upon foreign lawyers to represent defendants. Foreign justices insisted these be dropped or reduced drastically. From March until the end of April, the stalemate held, through a series of stinging rebukes. Amidst the bickering and inertia, one positive note sounded at the Documentation Center of Cambodia, which has for years gathered testimonials and evidence about the genocide the tribunal should address. In late April, the center published a history of the Khmer Rouge years, the first by a Cambodian. The textbook is meant to fill in astonishing gaps in local awareness. Surveys show a majority of Cambodian children know little about the Khmer Rouge. Those that do largely discount stories told by parents and grandparents. A History of Democratic Kampuchea by Khamboly Dy has been approved by the education ministry, but not as a core school text.
"The government has an obligation to teach children about the Khmer Rouge and to bring the culprits to justice," said Youk Chhang, director of the center, and a refugee who lost most of his family in the Killing Fields. Purposefully kept tame to avoid issues with government censors, publication marks a victory for self-assessment, Mr. Chhang said. "Cambodians are at last beginning to investigate and record their country's past."
Sadly, many fear that this book, as circumspect as it is, may be the best chance Cambodians get to do so. The tribunal may stagger back on track–at April's end, the bar agreed to slash fees to $500, but only after foreign judges upped pressure, canceling a plenary session last month and threatening to proceed without any bar consultation. Fees have not been charged at any tribunal except in the former Yugoslavia, where registration and first-year bar dues were around $200.
"This isn't a question of money," noted Marcel Lemonde, of France, co-investigating judge. "It's a question of principal and the rights of the defense." The worry was that high fees would deter participation. "Defense would have automatic grounds for appeal," explained Ruper Skilbeck, the principal defender from the United Kingdom. "They could argue that they didn't have access to fair representation." On April 30, international judges indicated they would accept the compromise, and hoped to reconvene the tribunal at the end of May. Should rules finally be adopted, the court, already a full decade in planning, might launch at last. "Things could move very fast from there," Mr. Chhang said hopefully.
Questions naturally surround who will be charged, and with what. Suspects are hardly cloaked in mystery. With three decades to speculate, entire books have been written on the topic. Topping the list is Kang Kek Ieu, or Ta Pin, or Hong Pin, best known as Duch, who ran the grisly S-21 torture center for the Khmer Rouge. A trial is virtually assured for Duch, who admitted running S-21 in an exclusive 1999 interview with the review, which revealed that Duch was working under an alias. He has been in custody ever since, and was long assumed to be among the likely first two defendants along with Ta Mok, who was with Pol Pot and the pitiful band of Khmer Rouge remnants in the Cambodian jungles right through 1990s. But Ta Mok has already faced his day of reckoning: He died last summer.
His passing underscored the urgency and, many say, the futility of the tribunal. More than three decades have passed since the Khmer Rouge seized power in 1975, and the small band of survivors senior enough to offer any meaningful information about this baffling autogenocide, the extermination of citizens by its own government or people, decline with each passing day.
Meanwhile, memories fade as staff at the Extraordinary Chambers in the Courts of Cambodia (ECCC), as this court is called, shuffle papers at a spacious site near the Phnom Penh airport that has yet to hear a single hammer of justice.
"This court means a lot to Cambodians, but it goes beyond that," noted Michelle Lee, soon after she arrived in Phnom Penh as head of the United Nations team. "This sends a message that, no matter how long ago these atrocities were committed, they must be stopped." She added: "The goal is to give some measure of justice to the Cambodian people."
That was a full year ago. Given the snail's pace, nobody believes the court will be able to achieve its aims within the three-year mandate, if ever. "This has taken longer than we expected, longer than anyone expected," conceded Mr. Lemonde. He hopes that once the court is underway, donors will provide additional funding and time to continue. The key is to show some progress. "Our aim now is to have the first investigation finished by the end of 2007, and the first trial to begin by early 2008." he said.
Others say the latest controversy over fees reiterates a lack of unity among judges and the extreme pressure the Cambodian government is exerting to control this court. And it's not the first example. In November, a group of attorneys with the International Bar Association flew in from London to conduct lawyer training, then promptly flew out after the bar refused to let the program for local lawyers proceed as scheduled. "We said all along that [Prime Minister] Hun Sen has been playing brinkmanship, and keeps trying to rewrite the agreement with the U.N. to give him even more control over the tribunal," said Brad Adams, Asian director of Human Rights Watch and a former resident of Cambodia who was involved in the early negotiations. "I'm surprised that the U.N. finally stood up to him and said, 'no more concessions.' I think the tribunal will go forward, but I expect it to limp along, with one problem after another."
Cambodia initially contacted the U.N. in 1997 to request assistance in hosting a court. The long, contentious years of negotiation emphasized the serious issues–and severe compromises–involved in this court's trying conception. For the first time in its history, the U.N. agreed to participate in a tribunal as a minor partner of the court in a country where the genocide had been alleged to have occurred.
Many say the very composition of the court, and Cambodia's insistence on a majority of local judges on every panel, makes it flawed and doomed to futility. The U.N. position is that balance comes from the unique supermajority system. In a panel of five judges (a supreme court will have seven judges), no guilty verdict can be reached unless at least one foreign judge concurs.
While this serves as a kind of check against kangaroo-court convictions, it does nothing to address widespread concern about the imposition of actual justice. "There is the possibility of a scandalous acquittal," said Mr. Lemonde, but added that judgments could at least be made public, complete with dissenting opinion. "We know the agreement that created this court was not perfect," he added, "but this was the best agreement we could get. Otherwise, there would have been no court."
"The U.N. really shouldn't have gone down this road," countered Mr. Adams, among many who criticize the international community for compromising too much on concepts of justice. Some attribute it to overeagerness on the part of the U.N., whose membership clearly desires a tidy resolution to the peacekeeping mission of the early 1990s. "Some say any tribunal is better than none," Mr. Adams added. "That just isn't true."
The ultimate question is what the tribunal might mean to Cambodians. "I think the overall problem in this entire process is that we have failed to give victims a role," said Mr. Chhang. "Even now, all the disputes are between two parties, the U.N. and the Cambodian government. The victims are all lost in this."
Every month, his center attempts to correct this shortcoming, traveling to remote villages to explain the tribunal. Residents from around the country are shuttled into Phnom Penh, where they tour not only the court, but also some of the ghastly reminders of the Khmer Rouge reign, such as S-21, now a Genocide Museum. This, in effect, is the real tribunal, free of rules and government intrigue. "Why did they do this to my sister?" screams one Cambodian on sighting her sibling pictured on a wall of S-21 victims. Heang Hourn collapses in tears when given a file on the torture and execution of her brother, Savourn, who she last saw in 1975. "We never knew what happened to him," she stutters. "Why? Why?"
These are questions Cambodians want answered, but reconciliation isn't certain if the tribunal limps along, as most expect. Because trials will be held according to Cambodia law based on French court proceedings, little will be public. Still, a belief that anything is better than nothing spurs many on. "I really do feel it is now or never," said Mr. Lemonde. "We just cannot delay. The victims have been waiting 30 years. They cannot wait much longer."
Mr. Gluckman is a writer based in Phnom Penh.
March 18th, 2008 
