These convictions are the ECCC’s first since Case 001 in July 2010 against Kaing Guek Eav, or Comrade Duch, whose role as the chief of the Khmer Rouge regime’s principal security centre was examined by the Trial Chamber. Duch too was eventually sentenced to life imprisonment for his part in the torture and murder of more than 12,000 victims deemed enemies of the revolution.
The trial of Nuon Chea and Khieu Samphan, Case 002/01, lasted 222 days, during which the court heard testimonies from nearly one hundred individuals, including witnesses, Civil Parties and experts.
Yet this so-called ‘mini’ trial represented only a small fraction of the initial investigation, evidence and charges against the ‘senior leaders and others most responsible’ for the crimes of the regime. In September 2011, the ECCC’s Trial Chamber decided to sever the global case against the surviving senior leaders into a series of smaller trials. Today’s verdict only focuses on the specific allegations examined in Case 002/01, namely crimes against humanity related to the forced movement of the population from Phnom Penh and other regions, and execution of Khmer Republic soldiers immediately after the Khmer Rouge takeover in 1975.
Case 002/02 will be heard in a second trial for Nuon Chea and Khieu Samphan, scheduled to commence in the coming months. This subsequent case represents the central core of the allegations historically levelled at the Khmer Rouge leadership: genocide of Cham Muslims and the Vietnamese; appalling treatment of Buddhists; nationwide forced marriages and rape; internal purges and political persecution of enemies; the network of torture and execution centres; and the worksites in which civilians were enslaved and worked to death.
Whether Nuon Chea and Khieu Samphan will survive long enough to hear the evidence and participate in Case 002/02, let alone to allow the Trial Chamber to deliberate and pronounce their second verdict, is highly questionable. Yet the 88- and 83-year-old accused have at least lived long enough to hear the judgment of an internationalised criminal tribunal: that their actions as leaders of a sovereign nation against their own population were beyond reasonable doubt criminal, based on the testimony of Cambodian victims and witnesses and international experts alike.
The initial reactions in online comments to the verdict from Western Media sources rehearsed the already well-worn criticisms of excessive delay, unconscionable expense and ultimate futility of prosecuting octogenarians to be sentenced to derisory punishment.
I’ve been familiar with these arguments against historic prosecutions ever since I began my career as an international criminal lawyer, and they’re not easy to respond to. 35 years after the Khmer Rouge were driven from Phnom Penh, saying that these convictions represent a ‘symbolic victory for accountability’ and are another ‘important milestone in the development of international criminal justice’ (as I think I might have said in the past) are well and good as a rational lawyer’s response, but those most affected by what happened are often far better placed to comment on the (f)utility of the trial process for Cambodia and what it means for their everyday life and identity as Cambodians.
I returned to Phnom Penh in March this year for the first time in nearly four years, this time around working with a transitional justice project for Queens University Belfast. In the years since I left the Office of the Co-Prosecutors and the Duch trial, I admit I became increasingly disappointed with the slow pace of justice at the ECCC, and disillusioned by the persistent and corrosive allegations of corruption and political interference, not to mention the corresponding impunity with which the current Cambodian government continued to treat their citizens.
Not by nature a cynic, I returned to Cambodia in 2014 nevertheless in a much more muted frame of mind on the usefulness and relevance of the ECCC. But after a week of observing several dozen interviews with Khmer Rouge survivors, Cambodian lawyers, ECCC personnel and civil society, and discussing the issues with QUB’s transitional justice experts Kieran McEvoy and Louise Mallinder, I was left feeling more at ease with the complexity of international criminal justice. I was also left more affected by the differing emotions of ordinary Cambodians. I had of course known that some victims were relieved to have their suffering acknowledged in public, that others felt deeply let down by the court’s failure to prosecute more people or to hold the government to account, and even some who were indifferent to the entire process. But to hear that expressed, face to face, left a lasting impression.
We have a tendency to seek simple explanations of large-scale human suffering. How else to comprehend the motivation, scale and impact of widespread and systematic criminality without making generalisations? Certainly, the black-letter law constrains those operating in the courtroom to fixed theories proved or otherwise by a preponderance of evidence. The politics of international criminal justice is itself prone to reductionism: the supporters and detractors of selective and often delayed-by-a-generation prosecution of ‘those most responsible’ for international crimes seldom admit any merit in the arguments of their opponents.
Having revisited Cambodia and considered these issues with the perspective of time and distance, I’m inclined more than ever to think that prosecutions for international crimes are inevitably messy and inconveniently incapable of being reduced to a simple ‘yes, they’re a good thing’ or ‘no, they’re a waste of time.’ Having been a prosecutor I am naturally supportive of the process of international criminal justice, but I now feel the need to temper this binary appreciation with what I see is the multiple complex realities for victims who continue to live in the affected society.
Youk Chhang, director of the Documentation Center of Cambodia, recently referred to the difference between what he called legal justification and human instinct. The former relates to being not guilty until proven otherwise, the black letter law. The latter, so much in evidence in the reactions of the survivors, is something undoubtedly part of how the world should view prosecutions of international crimes. To put it differently, the formal legal conviction of Nuon Chea and Khieu Samphan is just one (albeit extremely important) aspect of the post-Khmer Rouge environment. Transitional justice also requires the sense that the people have been able to tell their stories, whether they support the process or not.
For any transition to truly occur however, the people have to feel that the country is not only capable of moving on from the events, but that it has taken steps towards a fairer and more just society in which the crimes are less likely to re-occur. Although it would be a real disappointment to many if Nuon Chea and Khieu Samphan do not live to hear the evidence in Case 002/02 and any subsequent judgment on whether genocide and systematic persecution is legally proven, it is a far greater loss if Cambodians in 2014 do not feel confident that their country has made significant progress towards tolerance, equality of opportunity and the enjoyment of basic human rights.
As one of the original team of prosecutors who had helped to investigate the crimes and draft the initial request for the Co-Investigating judges to open the case back in 2007, it is some satisfaction to hear that the tribunal has been able to reach a verdict on two of the senior leaders of the Khmer Rouge. However, after my March 2014 visit to Phnom Penh in the wake of the violent government crackdown on opposition protesters and striking garment workers, and speaking to prominent (and peaceful) civil society representatives, I was left with the distinct impression there can be no confidence at all in the current Cambodian administration’s ability to act with fairness and equality towards its citizens.
Trial Chamber President Nil Nonn in his remarks to the court today said the Khmer Rouge regime left people living in “a state of terror…unwilling to question orders.” The current Cambodian administration, under the premiership of ex-Khmer Rouge cadre Hun Sen, portrays itself as a modern democracy with a vibrant economy. State of terror it may not be, but there are many thousands of Cambodians who live in a state of fear, particularly those who question the orders of the rich and the powerful or who seek to pursue legitimate political opposition.
The symbolism of Nuon Chea and Khieu Samphan’s convictions is not just confined to international criminal justice: there is a resonance with the current dire state of human rights in modern-day Cambodia.
*For more details of today’s verdict, see http://www.eccc.gov.kh/en/articles/nuon-chea-and-khieu-samphan-sentenced-life-imprisonment-crimes-against-humanity