Some years ago, whilst working as a prosecutor at the Extraordinary Chambers in the Courts of Cambodia, I appeared on a Cambodian radio phone-in programme to take questions from listeners about the court. One particular caller sticks in my mind. I was asked what would happen if a convicted accused died in custody before serving his sentence. Could the bones of the deceased be kept in chains in the prison, only to be released to his relatives at the end of the expiry of the jail term?
At that time, I had already lived in Phnom Penh for over eighteen months. I was well aware of the significance in Cambodian Buddhist culture of a proper funeral. The body would be brought back to the family home, where monks would offer prayers for the first few hours after sunrise each day for several days. Subsequent ceremonies were spread over several weeks and months. A failure to observe these rituals would be unthinkable, as it would not only bring shame on the surviving family but would not augur well for the deceased in the next life.
The caller’s point was obvious. Those convicted of Khmer Rouge era atrocities that died before condign punishment had been served should forfeit the right to a proper and timely burial.
Ieng Sary, former Foreign Minister and member of the Standing Committee of the Communist Party of Kampuchea in Democratic Kampuchea from 1975-1979 (better known as the Khmer Rouge regime) died aged 87 on 14 March 2013. He was a little over eighteen months into his public trial at the ECCC, where he was facing charges of genocide, crimes against humanity and war crimes.
Case 002, as it is known, is the centrepiece of the ECCC’s work: the largest trial against the most senior remaining figures of the Khmer Rouge. The trouble is, with Ieng Sary now dead and his wife Ieng Thirith last year having been adjudged mentally unfit to stand trial through dementia, the only surviving defendants in the dock are Nuon Chea, former Deputy Secretary of the CPK, and Khieu Samphan, former DK Head of State. Aged 86 and 82 respectively, their own grip on mortality is tenuous.
Yesterday, at a press conference, the Co-Prosecutors offered the consolation that they believed the end of the trial was only four months away. International Deputy Co-Prosecutor Bill Smith rejected a suggestion that the OCP had overreached itself when submitting the accused should be indicted for more charges than was safe given their age. Smith conceded that it was always a gamble when prosecuting accused of this age that they would die before the process had run its course. Nevertheless, limiting the trial to a single crime site to achieve a quick trial would he said have been unlikely to have satisfied the public. So far so good.
I was not convinced by his follow-up argument, however (apologies if you’re reading this, Bill…). To paraphrase the Deputy Co-Prosecutor’s words, whether we reach the end before an accused dies in some cases may be less important than the fact of holding of a proper process adjudicating allegations against them. Reading through the comments on the website of the Documentation Centre of Cambodia (The People’s Reactions on Ieng Sary’s Death) it’s unlikely that many Cambodians share Smith’s view. ‘It is an insult to justice that Ieng Sary died while the trials are still ongoing. Due to its lack of independence the ECCC is extremely slow and reluctant try more individuals’ said one – these comments were entirely typical.
Less plausibly still however, Smith also made the point that people should focus on the ECCC’s legacy, or as he put it, on the fact that the court process marked the end of impunity in Cambodia for people in power who commit crimes against the people: no matter how old you are, you’re never too old to face justice. Unfortunately, the most relevant (and unpleasant) fact relating to impunity today is that powerful and influential people accused of crimes still buy off the judges to escape justice. The (non) functioning of Cambodia’s modern-day justice system makes a mockery of the claim that the ECCC has brought the end of impunity for the powerful.
The limited ‘end of impunity’ we all believed in (to a greater or lesser extent) when we started work at the ECCC in 2006 related to the belief that ‘some justice is better than none’ for the victims of the Khmer Rouge. Yet as the years have gone by, the inherent weaknesses of the hybrid system have been exposed and the Government’s obstructions to further investigations have prevailed. Not only does it seem that the expensive international experiment is failing as an exemplar to domestic courts for modern-day crimes, even the narrow sense of a symbolic victory over impunity for DK crimes is fading as fast as the life in the remaining defendants.
The failure to bring the accused to justice before their demise cannot of course be laid wholly (or even mostly) at the door of the ECCC. As Bill Smith reminded everyone yesterday, the suspects (as they then were) were delivered to the custody of the hybrid tribunal at an already advanced age and state of considerable ill health. The failures of diplomacy in the 1990s and early 2000s to expedite the creation of the court are partly to blame for this. As are the failures of Cold War politics in the 1980s (and, arguably, the underdeveloped state of international criminal law at the time), when the West’s antipathy towards the Vietnamese-backed post-Khmer Rouge government in Phnom Penh prevented any attempt to seek the arrest and trial of the main suspects when they were in middle age and of sound health.
On 19, August 1979 the Vietnamese PRK Revolutionary Tribunal convicted Ieng Sary in his absence of genocide and sentenced him to death. The trial bore none of the recognised hallmarks of due process and is widely recognised as a sham. It is a great pity – but no great surprise – that history will record this to be the only completed judicial process against him.
Brad Adam of Human Rights Watch has recently argued that there are real questions about the purpose of continuing international UN involvement and donor support for the ECCC. To use Ieng Sary’s death as a reason for the UN to pull out now would add gross insult to grave injury – but the damage to the process was already done in the decades after the Khmer Rouge were driven from power. The shame is that no one acted to bring justice to Cambodia sooner.
With every fresh setback the ECCC faces, the best that one can hope for is that the lessons learned from the entire project do not go unnoticed, and the compound failings over three decades are not re-made in the future of international criminal law.
Yesterday, the Documentation Centre of Cambodia’s website published photographs of the family house and the freshly-swept yard surrounded by frangipani trees to where Ieng Sary’s mortal remains were to be brought. His bones would be unchained at his own funeral. As one DC-Cam interviewee put it, ‘Ieng Sary's death is a loss for the Khmer Rouge tribunal since they were not able to deliver a final judgment on him. His death will be buried alongside the justice that people have waited so long for.’ However extreme such a reaction may sound, the sentiment is a wholly understandable one.
At that time, I had already lived in Phnom Penh for over eighteen months. I was well aware of the significance in Cambodian Buddhist culture of a proper funeral. The body would be brought back to the family home, where monks would offer prayers for the first few hours after sunrise each day for several days. Subsequent ceremonies were spread over several weeks and months. A failure to observe these rituals would be unthinkable, as it would not only bring shame on the surviving family but would not augur well for the deceased in the next life.
The caller’s point was obvious. Those convicted of Khmer Rouge era atrocities that died before condign punishment had been served should forfeit the right to a proper and timely burial.
Ieng Sary, former Foreign Minister and member of the Standing Committee of the Communist Party of Kampuchea in Democratic Kampuchea from 1975-1979 (better known as the Khmer Rouge regime) died aged 87 on 14 March 2013. He was a little over eighteen months into his public trial at the ECCC, where he was facing charges of genocide, crimes against humanity and war crimes.
Case 002, as it is known, is the centrepiece of the ECCC’s work: the largest trial against the most senior remaining figures of the Khmer Rouge. The trouble is, with Ieng Sary now dead and his wife Ieng Thirith last year having been adjudged mentally unfit to stand trial through dementia, the only surviving defendants in the dock are Nuon Chea, former Deputy Secretary of the CPK, and Khieu Samphan, former DK Head of State. Aged 86 and 82 respectively, their own grip on mortality is tenuous.
Yesterday, at a press conference, the Co-Prosecutors offered the consolation that they believed the end of the trial was only four months away. International Deputy Co-Prosecutor Bill Smith rejected a suggestion that the OCP had overreached itself when submitting the accused should be indicted for more charges than was safe given their age. Smith conceded that it was always a gamble when prosecuting accused of this age that they would die before the process had run its course. Nevertheless, limiting the trial to a single crime site to achieve a quick trial would he said have been unlikely to have satisfied the public. So far so good.
I was not convinced by his follow-up argument, however (apologies if you’re reading this, Bill…). To paraphrase the Deputy Co-Prosecutor’s words, whether we reach the end before an accused dies in some cases may be less important than the fact of holding of a proper process adjudicating allegations against them. Reading through the comments on the website of the Documentation Centre of Cambodia (The People’s Reactions on Ieng Sary’s Death) it’s unlikely that many Cambodians share Smith’s view. ‘It is an insult to justice that Ieng Sary died while the trials are still ongoing. Due to its lack of independence the ECCC is extremely slow and reluctant try more individuals’ said one – these comments were entirely typical.
Less plausibly still however, Smith also made the point that people should focus on the ECCC’s legacy, or as he put it, on the fact that the court process marked the end of impunity in Cambodia for people in power who commit crimes against the people: no matter how old you are, you’re never too old to face justice. Unfortunately, the most relevant (and unpleasant) fact relating to impunity today is that powerful and influential people accused of crimes still buy off the judges to escape justice. The (non) functioning of Cambodia’s modern-day justice system makes a mockery of the claim that the ECCC has brought the end of impunity for the powerful.
The limited ‘end of impunity’ we all believed in (to a greater or lesser extent) when we started work at the ECCC in 2006 related to the belief that ‘some justice is better than none’ for the victims of the Khmer Rouge. Yet as the years have gone by, the inherent weaknesses of the hybrid system have been exposed and the Government’s obstructions to further investigations have prevailed. Not only does it seem that the expensive international experiment is failing as an exemplar to domestic courts for modern-day crimes, even the narrow sense of a symbolic victory over impunity for DK crimes is fading as fast as the life in the remaining defendants.
The failure to bring the accused to justice before their demise cannot of course be laid wholly (or even mostly) at the door of the ECCC. As Bill Smith reminded everyone yesterday, the suspects (as they then were) were delivered to the custody of the hybrid tribunal at an already advanced age and state of considerable ill health. The failures of diplomacy in the 1990s and early 2000s to expedite the creation of the court are partly to blame for this. As are the failures of Cold War politics in the 1980s (and, arguably, the underdeveloped state of international criminal law at the time), when the West’s antipathy towards the Vietnamese-backed post-Khmer Rouge government in Phnom Penh prevented any attempt to seek the arrest and trial of the main suspects when they were in middle age and of sound health.
On 19, August 1979 the Vietnamese PRK Revolutionary Tribunal convicted Ieng Sary in his absence of genocide and sentenced him to death. The trial bore none of the recognised hallmarks of due process and is widely recognised as a sham. It is a great pity – but no great surprise – that history will record this to be the only completed judicial process against him.
Brad Adam of Human Rights Watch has recently argued that there are real questions about the purpose of continuing international UN involvement and donor support for the ECCC. To use Ieng Sary’s death as a reason for the UN to pull out now would add gross insult to grave injury – but the damage to the process was already done in the decades after the Khmer Rouge were driven from power. The shame is that no one acted to bring justice to Cambodia sooner.
With every fresh setback the ECCC faces, the best that one can hope for is that the lessons learned from the entire project do not go unnoticed, and the compound failings over three decades are not re-made in the future of international criminal law.
Yesterday, the Documentation Centre of Cambodia’s website published photographs of the family house and the freshly-swept yard surrounded by frangipani trees to where Ieng Sary’s mortal remains were to be brought. His bones would be unchained at his own funeral. As one DC-Cam interviewee put it, ‘Ieng Sary's death is a loss for the Khmer Rouge tribunal since they were not able to deliver a final judgment on him. His death will be buried alongside the justice that people have waited so long for.’ However extreme such a reaction may sound, the sentiment is a wholly understandable one.
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