Globalaffairs

Issue 17/October-November 2009
By Mauricio Palma Gutiérrez

A couple of weeks ago, Kan Guek Evan, alias Comrade Duch, made headlines as he publicly expressed his remorse for the demise of nearly 12,000 people who died while in his charge as the director of the S21-the most infamous prison camp from the Khmer Rouge era. However, the attention his declarations attracted was minor compared to the more recent events surrounding the bringing to justice of those who are accused of committing war crimes, crimes against humanity or genocide.

The issuing of arrest warrants by the International Court or the mandates of the International Criminal Tribunal for the Former Yugoslavia have attracted the most attention around the world and thereby the majority of the academic discourse on the matter. Notwithstanding, the case of the Tribunal for the Cambodian Genocide is seen as singular and innovative in its legal constitution and regulation of international legal elements for the statutes and the legal bodies established in the budding international legal order. The declarations of this person have become the perfect excuse to conduct an evaluation of the understandings of the action-taking logic of a peculiar legal body in action, within the context of one of the most remembered genocides of the latter half of the twentieth century, perhaps only comparable to the Rwandan genocide.

Therefore, the following article aims to evaluate the executive powers of this tribunal, which has an infrastructure that has been little used in the context of International Law rendering it an interesting case study regarding the actual application of justice and the political alignment of some of the main figures of the international humanitarian order, more than thirty years after the demise of the Pol Pot era in Cambodia. This article aims (i) to provide a brief overview of the legacy of the Khmer Rouge and the constitution of the Tribunal for the Cambodian Genocide in 2006, (ii) to provide an analytical framework for the political alignment and the possible hurdles the Tribunal may encounter in its future operations and (iii) to conclude provide an open space for several conjectures that might be formulated once these hindrances have been overcome.

The cry for justice and the road to the tribunal

It is well known to all that the era of the Khmer Rouge was one of the bloodiest of the final quarter of the past century. During the four years of dictatorship that changed the Kingdom of Cambodia into the Democratic Kampuchea, 1.5 million people lost their lives (1) not just because of the actions of the estranged Maoist insurgents, led by the infamous Pol Pot, against their political enemies, but also due to the degradation of the standards of living of the inhabitants that led to famine, pandemics and a state of tremendous social unrest between 1975 and 1979. This situation ultimately reduced the total population of the country by approximately 20% (2) and once the Khmer region was controlled by the Vietnamese, the atrocities of the Cambodian Genocide were uncovered (3).

The Human Rights abuse by the old regime was rapidly denounced while the former Khmer leader and some of his partisans-including Duch-continued to play havoc until well in the nineties in the centre of the country (4). Notwithstanding, Cambodia was re-established as a Kingdom from 1993 onwards, this time as a constitutional monarchy, thanks to amongst others the efforts made by some of the former members of the Khmer Rouge who had abandoned or were expelled from the movement in the 1970s. This led to widespread clamour among the Cambodian civil society for justice; a justice that had been postponed due to the continuous instability in the state since 1979 (5).

The influence of several international conglomerates-both governmental and non-governmental-intervened thus initiating a new and complicated stage which included the establishment of a special tribunal influenced by the Yugoslavian and Rwandan experience in the 1990s. In 1997, following a narrow margin of political negotiations, the Cambodian government approached the United Nations (UN) to request that a penal structure be developed that would be able to intervene in the case of Cambodia and could bring to justice some of those responsible for the crimes committed in the previous years.

The ultimate objective for most of those involved in the constitution of the Tribunal was to bring to justice the former leader of the movement. However, Pol Pot would die in 1998 even before the tribunal became a reality. His death, notwithstanding, was an influential event that propelled and at the same time highlighted the need to regulate the situation that the country had been through in the past in the eyes of the International Community.

Thus, following the recommendations made by the UN to a committee of experts to evaluate the possibility of creating an international tribunal, a long period of approaches regarding the situation in the General Assembly of the institution-and, above all, an extensive period of negotiations within the Cambodian government a hybrid structure-began to take shape. The political influences of the intergovernmental sphere as well as those of the political elite of Cambodia were then established as the main drivers behind a structure that could be seen as belonging to the family of the traditional international tribunals, but which small differences set aside complicating its operations slightly compared to other penal structures around the world.

The hybridization of justice

The final outcome of the negotiations between the UN and the Cambodian government came as a surprise to many. The majority of the judges presiding the tribunal are Cambodian, thus setting the tribunal apart from its Rwandan and Yugoslavian and even Sierra Leonan counterparts. One out of every two investigators of the tribunal are also of Cambodian descent. On the other hand, the first norms to be applied are those of the country thus avoiding situations of uncertainty and conflicts of law. This design was chosen to allow the tribunal to act freely and independently from the possible influence of certain governmental agents of the Cambodian government (6) and also to ensure that local interests were not overlooked in favour of international ones. Within the objectives of the tribunal the aim of bringing to justice those who committed crimes against humanity, genocide and war crimes between 1975 and 1979 was prioritized. In 2006, the tribunal started its operations by investigating five cases including those of Duch, of Nuon Chea-better known as Brother Number Two, Pol Pot’s second in charge of Ieng Sary, the chancellor of the regime-and that of Ieng Thirith, Prime Minister of Democratic Kampuchea.

So far the most advanced case is that of Duch, who will be sentenced at the beginning of next year (9), while the trial against Brother Number Two is about to commence. The other cases are in the preliminary stages and another five investigations have been opened while another five have been abandoned due to the demise of the suspects (10). Perhaps a short exploration of the practical elements that influence the operations of the tribunal from the political sphere would be more interesting than stating the number of accused or the types of crimes that they are accused of under the regulations of the Geneva Conventions and the international Genocide Convention. The tribunal, being of a hybrid nature, is permeable to influences from the national sphere ranging from its civil servants to the normative processes that are firstly applicable but also from abroad, not only due to the presence of individuals of third countries in the legal structure but also due to the economic and political pressures that some of these individuals have applied, thus turning the tribunal into an element subject to analysis under the instrumentalisation of an intangible good: justice.

This argument can be made when considering that (i) generally speaking the instrumentalisation of international penal tribunals (hybrid or not) respond to the political intentions of those interested abroad (in the case of Cambodia the influence of France through the European Union as an old colonial power in Indochina trying to re-establish links with second intentions or the influence of the United States through its financing of the tribunal aiming to extend its connections in certain regions around the world that are currently becoming of interest as semi-strategic areas giving the geopolitical interests of China) or those interested internally (such as for instance the political elite eager to gain recognition in a context in which their country has gone from conflict and instability to the configuration of a political culture where democratic forms have not been sufficiently mechanized).

To this should be added that (ii) the funds for this type of institutions is generally acquired through third parties (whether governmental or not) that aim to satisfy certain interests (in the case of civil pressure groups of exiled Cambodians the effective provision of justice, in the case of non-governmental organisations the instrumentalisation of certain regulations of international humanitarian law, or in the case of the states who decided to intervene financially making certain objectives that the international normative elements that they claim to defend as part of their own political influence. Lastly (iii) the Cambodian government itself is one of the main parties interested in rapid results as it is currently submerged in a legitimisation process in the eyes of the international community that for years has regarded the Cambodian leaders as being far from individuals of organizational labour and more as simple dictators in almost failed circumstances.

Conclusion: The final judgement of the Khmer Rouge

While Duch professes regret for committing certain misdeeds, thousands of those affected hope to see him punished to set an example. Nevertheless, what many do not know is that in the end what matters most is the need to provide justice at any expense in quantitative and non-qualitative terms at the time of establishing a tribunal of the characteristics of that of Cambodia. As in the case of the Rwandan Tribunal and the International Penal Curt, the political alignment of those interested in making the structure operate smoothly is more important than the actual provision of justice to the victims. The bloody history of Democratic Kampuchea can thus avoid being eradicated completely from the development of this Asian country. Furthermore, another factor must be kept in mind, namely that of longevity.

The majority of those accused, whether detained or not, are already in their seventies and might be judged by the divine before being brought to justice by the courts. Thus, the civil servants working at the courts are working against the clock with trials scheduled for 2011 (such as the case of Ieng Say and Ieng Thirith). Apparently the court is unaware that time might not be on their side and that time itself might actually be the final judgement of the Khmer Rouge, not only because the majority of the Khmer Rouge would never leave the confines of prison, but also because of their age, as most of them would probably not live long enough to have their day in court.

Mauricio Palma Gutiérrez
Lecturer at the Universities of Sergio Arboleda and Rosario (Bogotá, Colombia) and Researcher for the Center of Strategic Studies for Security and Defense of the War Institute of Higher Education (Colombia).

Bibliography:

(1) BBC News, Cambodia’s brutal Khmer Rouge regime. Published September 19 2007 online. Available from: http://news.bbc.co.uk/2/hi/asia-pacific/7002629.stm
(2) SCHEFFER, David. The Extraordinary Chambers in the Courts of Cambodia, in Cherif Bassiouni, ed. International Criminal Law Martinus Nijhoff Publishers, 2008
(3) NGOR, Haing. Survival in the Killings, Basic Books, 2003
(4) JAYA, Ramyi. Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts, Edwin Meller Press, 2005
(5) Ibid.
(6) GLASPIC, Padray. Justice Delayed? Recent Developments in the Extraordinary Chambers of the Court of Cambodia, in Harvard Human Rights Journal, Vol 21, 2008
(7) SCHEFFER, David. The Extraordinary Chambers in the Courts of Cambodia, in Cherif Bassiouni, ed. International Criminal Law Martinus Nijhoff Publishers, 2008
(8) KHELANG, Svay, Cambodia: Coming to terms with a Violent past, IRIN: 11 November 2009. Available from: http://www.cambodiatribunal.org/images/CTM/coming%20to%20terms%20with%20a%20violent%20past%20%2011_11_09.pdf
(9) HUNT, Robert, Khmer Rouge Death Camp Awaits Sentence. World Politics Review. 30 November 2009. Available from: http://www.cambodiatribunal.org/images/CTM/kr%20death%20camp%20commander%20awaits%20sentence%2011_30_09.pdf

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