The Khmer Rouge Tribunal:

Transforming Cambodian “survivors/subjects” into informed, empowered “citizens”

Theary C. Seng

The National Press Club, Washington, DC, 5March 2010

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Introduction

I would like to begin first of all by expressing my gratitude to Mr. Peter Hickman for this wonderful invitation to be here at the National Press Club; it’s a double pleasure to be in my former home of Washington, D.C.

I come from a country mired in disproportions, contradictions and human rights abuses:  when a boy steals a piece of bread, he is sent to jail; when a man kills 2 million of his countrymen, he is invited to Paris for a peace conference.

I come from a country where to be an orphan is to be common; where post-traumatic stress disorder (PTSD) pervades the population, currently at 14 million people.

Thirty-five years ago this April, Cambodia plunged into the abyss of human suffering when the Cambodian communists or “Khmer Rouge” took over and within a matter of 3 and ½ years took the lives of 1/3 of the country’s population or almost 2 million people, including my parents and other relatives.  No Cambodian was untouched.

Then as now, we, Cambodians, yearn for peace. Peace that is more than just the absence of war. We want peace with the presence of justice. We want peace to subside the internal turmoil and purge the demons from within.

Some thirty years on, there is now the Khmer Rouge Tribunal (or, formally known as the Extraordinary Chambers in the Courts of Cambodia) to start us on this journey of ‘peace with justice’.

Overview of KRT

-  Hammered out of 10 YEARS of political compromise b/w Cambodia and UN; deeply flawed from beginning; the result of lowest common demoninator.

-  Came into operation in early 2006

-  Hybrid court of Cambodian and UN officials “in the Courts of Cambodia”

• Cambodian civil law procedural rules
• Co-prosecutors
• Co-Investigating Judges
• Co-Lawyers
• Complex “super-majority” to always include a foreign judge

-  KRT costing international community US$40-50 million / year

• Incomprehensible to a Cambodian teacher earning US$50/mo, even though very cheap by international standard, in comparison to other mixed/hybrid courts, e.g. Special Court for Sierre Leone, ICTY, ICTR etc.

-  KRT located in remote outskirts of Phnom Penh on military compound; had to re-draw map of Phnom Penh to satisfy language of agreement

-  TEMPORAL JURISDICTION:  crimes committed between 17 April 1975 – 7 Jan. 1979

-  PERSONAL JURISDICTION: (i) “those most responsible”, and (ii) “senior KR leaders”

• Case File 001:  Kaing Guek Eav (“DUCH”), director of Tuol Sleng Detention Center
  • Has confessed, may be the sole scapegoat
  • Closing argument highlights problem with hybrid “co-“ nature

• Case File 002:  Senior KR Leaders – Nuon Chea (Brother No. 2, chief of Security apparatus), Khieu Samphan (KR Head of State), Ieng Sary (KR Minister of Foreign Affairs), Ieng Thirith (KR Minister of Social Affairs) – OCTOGENARIAN, AILING – time is of the essence!

• International Co-Prosecutor has forwarded an additional 5 more names—Case File 003, Case File 004— but blocked by the Prime Minister Hun Sen:  "If the court wants to charge more former senior Khmer Rouge cadres, [it] must show the reasons to Prime Minister Hun Sen,” referring to himself in the 3^rd person.

KRT as Court of Law

-  KRT as ‘court of law’ offers LEGAL ACCOUNTABILITY.

• Symbolic justice
  • Restores moral order, a collective repudiation
  • Proximate, not perfect justice
  • Selective,  not comprehensive justice
  • collective, public repudiation of mass crimes, to express our collective disgust, to restore moral order
    
• “justice must be seen to be done” - most visible form of justice
• Chip at impunity, acts as a deterrence (puts potential perpetrators on notice)

BUT…

-  KRT as court of law, legal mechanism – greatly LIMITED.

• ANY court of law—even in developed US, Germany, France—is limited because based solely on EVIDENCE
  • Availability
  • Clever lawyering in use of evidence
  • Fair trial rights: evidential rules, procedural rules, decorum
  • Arcane, archaic language/legalese understandable to an elite few
    
    
    
• SPECIFIC challenges to KRT
  • Evidence is 30 years old: Documentary:  Compromised or lost; Witnesses:  dead or fearful to come forward or blurry memory
    
  • Corruption / kickbacks charges: still no anti-corruption mechanism in place
    
  • Political interference – CPP former KR cadres, China and geopolitical considerations
    
  • Lack of judicial independence/competence to try mass crimes
    
  • Budgetary constraints/annual fundraising: recently UN approved US$85 M
    
  • 3 official languages: Khmer, French, English
    
  • Delays (natural, ill-will) – Jacques Verges’ “rupture defense”
    
  • Magnitude of crimes, scope of crime scene strewn across all the fields of Cambodia: 200 detention centers, thousands of “killing fields”, every Cambodian a victim
    
  • Experimentation of victims as CIVIL PARTY
    
  • Hybrid nature posing coordination challenges – UN and Cambodian officials theoretically should be speaking with one voice, but different motives/political constraints/will

KRT as Court of Public Opinion

-  KRT is necessary as ‘court of law’ but not sufficient; moreover, deficient.

-  No formal truth and reconciliation commission to complement/supplement.

-  If we only view KRT as a legal mechanism, a court of law – it should close shop and go home.

HOWEVER…

-  KRT is BOTH a court of law AND a court of public opinion.

-  Powerful catalyst for SOCIAL ACCOUNTABILITY – the constructive engagement of citizens.

-  KRT is the “spectacular event” to break the silence; to transition us out of “period of communicative silence” to building a “culture of memory”

-  Transforming us from “subjects/survivors” into empowered citizens with rights and responsibilities

-  Discovering our voice having been voiceless for so long

-  Dialogue replacing monologue – “national dialogue” – away from society of directives

-  Changing mentality of always awaiting for “permission to speak”

-  A vivid illustration to jumpstart conversations long overdue:

• History
• Accountability (personal, collective, legal, moral, social)
• Peace, truth, reconciliation, healing, trauma
• Demystifying the legal system for Cambodians
• PROCESS…JOURNEY of 1,000 steps… now at step 47

-  People are the judges

-  Not limited by arcane language, decorum

-  More difficult for political manipulation

-  Rare, unique window of opportunity to multiply impact of constructive engagement by shaping this broken legal mechanism:

• Donor funding
• “stickiness factor”

-  Expanding genre of KR films: Enemies of the People; Facing Genocide; New Year Baby etc.

-  Legacy of learning/dialogue – virtual libraries / learning/info centers / memorials

-  The most special impact for me is the standardizing of trauma language and conversations in Cambodian society. What was taboo 3 years ago are now talked about with less shame and reluctance. Three years ago, my staff accused me of thinking every Cambodian “crazy” by broaching these topics of trauma. Now, they are counseling others using the Trauma Handbook and posters taken from this Trauma Handbook.

Legacy for Cambodians:

-  The worst legacy for Cambodia is a mentality of irreversible cynicism.  This is a possibility if we do not engage this ECCC process to help shape it.

-  Uncertain/questionable whether ECCC will have positive impact on the national court – if any, it has created a greater appetite of the Cambodian judges once they return to the national courts.

-  Positive Legacies:  found in the “court of public opinion” as mentioned above; additional the corpus of materials for learning, e.g. the Virtual Tribunal, etc.

Implications for International Justice:

-  VICTIMS PARTICIPATION:

• ECCC is the first mixed/international court to make victims a “party” – civil party – to the case in the criminal proceeding.
  
• This February 2010, the judges met in a plenary to greatly reduced this right of civil parties.
  
  

-  Toward National Court with UN/international presence – thus, inside the country and not in another country, e.g. Rwanda

-  Do away with CO-POSITIONS, e.g. co-prosecutors, co-investigating judges, co-lawyers, etc.  The problem was highlighted by the very dramatic public disagreement, contrary positions of Duch’s co-lawyers – French lawyer Francois Roux and Cambodian lawyer Kar Savuth at the Closing Arguments.

-  NATIONAL RECONCILIATION and OUTREACH FOR VICTIMS/SURVIVORS will need to be reassessed and be better prepared with READY AVAILABLE FUNDING from the get-go.

Conclusion

In sum, only hindsight and a bit of distance will allow us to really assess the legacy / implications of this ECCC for Cambodia and for international law.  However, we know enough of where we need to shape or re-direct the process in order to bring about POSITIVE legacies/impacts from this very flawed construct, that is the ECCC.  One area we can impact the greatest change and bring about positive legacies is in the “court of public opinion”, where the people are the “judges” and are not inhibited by rules of procedure, evidentiary rules or the archaic, arcane legal language, preserved for the understanding of a few.

All to say, let’s have another conversation 5 years from now, when the ECCC has closed shop.

Legacy is still being written: an onus for us to shape this process into a positive legacy rather than one of further, ingrained cynicism.  Time and resources are not on our side in light of current political environment.

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Theary C. Seng

Author, Daughter of the Killing Fields

Center for Justice & Reconciliation (CJR)

Affiliated Network for Social Accountability in East Asia & Pacific (ANSA-EAP)

Human Rights Resource Center for ASEAN (HRRCA)

Peter Hickman, committee member of National Press Club, introducing Newsmaker Theary Seng (Wash. DC, 5 March 2010)