Cambodian trials offer important lessons

This past December marked 37 years since the end of the brutal reign of the Khmer Rouge, whose warped ideology and systematic violence brought death to a quarter of Cambodia’s eight million people. 

For years afterward, the US government and its allies, fighting Cold War battles in the wake of the Communist victory in neighbouring Vietnam, cynically backed the ousted Khmer Rouge at the United Nations. 

In part as a result, it took more than a quarter century to establish a court to try those most responsible for the horrific crimes. By then, many Khmer Rouge leaders, including Pol Pot, its founding leader, had died. 

Over the past ten years, the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) has struggled to complete just three trials. Just before Christmas, two more investigations edged forward when suspects voluntarily appeared and were formally charged, virtually ensuring that judicial proceedings will continue into 2017.

Flickr/Extraordinary Chambers in the Courts of Cambodia (Some rights reserved)

A 2009 proceeding of the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh.

My organization, the Open Society Justice Initiative, has monitored developments at the ECCC throughout its tenure. The Court has held three senior figures responsible for atrocities in public trials that offered positive models of vigorous defense advocacy, reasoned judicial decisions, and access to victims. It has pioneered methods of case procedure and management new to Cambodia. Further, it has prompted public discussions about the past, and helped spark inclusion of a brief history of Khmer Rouge rule in Cambodian schools. Still, the number of those charged is tiny compared to the number of perpetrators, and the Court has yet to demonstrate that it can successfully prosecute and try suspects in the face of government resistance. 

To be sure, the Court’s impact and legacy are of greatest importance to Cambodians. And yet, mass crime and corruption know no borders. From the Central African Republic to Central America, from Syria to Ukraine, the ECCC offers lessons about international justice and the option of using regional tribunals to complement the work of the International Criminal Court in The Hague. 

​First, don’t delay. The long pause between the end of Khmer Rouge rule and the launch of formal investigations has meant less evidence, diminished memories and fewer senior leaders still alive to face trial. More than 65% of Cambodians were born after the regime’s fall. Many find it hard to believe such crimes really took place. There may well be reasons to sequence prosecutions to gain a political settlement, but the costs should be clear.

​Second, once trials get started, they take time and money. The initial budget for the ECCC projected a three-year operation at a cost of about $50 million. Ten years later, the Court is still going, and about to exceed a quarter billion dollars in total spending. Funding crises have repeatedly threatened to shut down its work. 

Judicial action generates greater impact if it is rooted in a broader program of locally-owned reform in support of the rule of law. 

The judicial process does not obey a political timetable. Witnesses must be identified, and, in instances of mass violence, many will need protection. Some victims will require psycho-social assistance. The process of amassing evidence, building legally sufficient cases, and defending against them takes months, if not years. Financial contributions must be planned and staggered accordingly, so that court officials don’t waste precious time beseeching donors for funds whose need is entirely predictable.

Third, judicial action generates greater impact if it is rooted in a broader program of locally-owned reform in support of the rule of law. Sadly, the Khmer Rouge tribunal was not. Since its inception, political will to end widespread corruption in the judicial system has been waning. While a number of Cambodian court officials express satisfaction at having benefitted from international mentors, there has been insufficient building of systemic capacity among justice officials. As a result, the ECCC’s examples of independent fact-finding and reasoned judging have not resonated more widely. Today, as in 2006 and 1996, few ordinary Cambodians have any illusion about where power in their society lies—or about a judge’s or prosecutor’s independent (in)ability to challenge it. 

Finally, though tempting, it is a mistake to compromise on the core principle of judicial independence. In many ways, the history of the Khmer Rouge tribunal has been a series of concessions to Hun Sen, currently in his fifth term as Cambodia's prime minister. In the 1990s, the US, France and Australia overruled the recommendation of UN experts that the tribunal should have an international judicial majority to guard against improper interference. More recently, no donor government has publicly challenged Phnom Penh’s baseless opposition to further trials beyond those already underway. Though each effort to appease Hun Sen seemed necessary at the time, together they have undermined the tribunal’s ability to provide justice that is, and appears to be, free of political influence.

The Khmer Rouge tribunal has brought a measure of accountability for some of the most heinous crimes of the 20th century. But its potential to foster greater respect for the rule of law in Cambodia has been stunted by inconsistent funding, intransigence at home and inadequate political backing from abroad. As the world confronts mass violence in the future, Cambodia offers a warning worth heeding.