Khmer Rouge War Crimes Trial Still in Doubt

RI Consultant Eugene Carlson has sent more from Phnom Penh. (You can also read his earlier postcard from Cambodia.)

Are the aging leaders of Cambodia’s bloodthirsty Khmer Rouge heading to trial at last?

Nearly 30 years after their defeat, will a United Nations-sponsored war crimes tribunal finally convene to judge the perpetrators of “Year Zero” -- the uniquely barbaric revolution that tortured and murdered up to one quarter of Cambodia’s population in the 1970s and kindled one of the greatest refugee flows of modern times?

Maybe yes. Maybe no.

Odds of the trial getting underway, always part of the conversational undercurrent in Phnom Penh, ramped up in recent days, due in part to an unusual gathering of government officials, diplomats, academics and minor Khmer Rouge figures.

Organized by AdHoc, a local non-governmental organization, and billed as an attempt at reconciliation, the idea was to record a wide range of views on Cambodia’s holocaust and then to broadcast the proceedings in districts, town and villages throughout the country.

If the U.N. tribunal fails to gel, the thinking goes, perhaps the recorded testimony will help a questioning Cambodian population come to terms, at least partially, with their national trauma.

At the two-day conference, scholars debated the fine point of whether four years of mass murder by the Khmer Rouge met the definition of “genocide” or was merely morally appalling behavior of an extreme nature.

A particularly poignant witness was Nhem En, chief photographer at the notorious Toul Sleng torture prison in Phnom Penh. His simple black and white portraits of men and women, boys and girls, destined for execution, have achieved iconic status as documents of Khmer Rouge horror. Nhem En apologized for the role he played.

“I hope these photographs will always unsettle us and make us uncomfortable,” said U.S. Ambassador Joseph Mussomeli. “Each of these pictures is worth a thousand tears.”

Meanwhile, behind-the-scenes trial organizing staggers on. It’s officially called the Extraordinary Chambers in the Courts of Cambodia (ECCC). Years of work by an international team of lawyers, jurists and human rights activists has pushed the trial somewhat closer to take off.

There’s a new courthouse. A panel of 30 judges and prosecutors from 11 countries, including Cambodia, has been named. Prosecutors say they’re ready to hand down indictments. Posters illustrating an anonymous Khmer Rouge leader testifying to the court have been sent around the country. Bumper stickers are on the way.

International donors have contributed the bulk of a three-year, $56 million budget. Microsoft announced two weeks ago that it was contributing $100,000, no strings attached.

Yet major, perhaps insurmountable, hurdles remain. They flow largely from the U.N’s controversial decision – required to win Cambodia’s cooperation -- to yield a significant amount of discretion to Cambodian law and its judiciary. The result is that Cambodia owns five of the seats on the nine-member judges’ panel and a number of politically-connected lawyers are installed in top ECCC posts.

And here’s where the process has gone aground. It’s no secret that the local bar and judiciary take signals from the government.

Close observers of Cambodian politics say Prime Minister Hun Sen, himself a former mid-level Khmer Rouge combatant and an acknowledged superb political tactician in his current role, is worried that he and other high officials in Cambodia’s ruling party may be tarred by trial testimony.

(Trial rules do, however, limit prosecution to “senior leaders” of the Khmer Rouge, which eliminates Hun Sen from the start. He’s also on record as supporting the tribunal.)

Behind the scenes, however, the ECCC’s Cambodians have argued incessantly over minutiae as well as important trial rules that include such international standards as proper rules of evidence and a credible defense for the accused, all in a public forum.

The delays have been so maddening that one or more of the non-Cambodian judges are thought to be weighing the option of resigning.

Ultimately, U.N. Secretary General Ban Ki-moon could withdraw United Nations sponsorship, a move that would likely reduce Cambodia’s standing in the international legal community to a façade.

There’s also speculation that China, an historic ally of Cambodia and a supporter of the Khmer Rouge in the 1970s, would like the trial to quietly go away.

Beyond seeking justice for Khmer Rouge victims, many believe the future of other trials for crimes against humanity is at stake. They ask: How can an international judicial process that prosecuted mass murderers in Rwanda, Sierra Leone, East Timor and the former Yugoslavia, be manipulated to ignore the bloody record of the Khmer Rouge?

The logrolling is driving trial supporters crazy. One insider who’s worked at the top level of tribunal planning for several years, shrugs his shoulders, saying he has absolutely no idea whether or not the trial will take place.

Perhaps the leading indicator of doubt over an imminent start to the trial is the nonchalance shown by the expected dozen or so defendants. Only one has been detained.

Such leading lights of the Khmer Rouge as Khieu Samphan, Ieng Sary and Nuon Chea, now elderly men, live openly and are occasionally quoted in the press.

Torture and killing? They say they had no idea. Must have been someone else.