(Editors’ note: This continues our coverage of the ECCC following its final verdict. The previous article may be found here.)
When the judges at the Extraordinary Chambers in the Courts of Cambodia (ECCC) announced their appeals judgement in Case 002/02 against Khieu Samphan on Sept. 22, the Chambers’ legal process against the Khmer Rouge came to an end. It is easy to downplay the importance of a court that has spent more than US$300 million and almost two decades to deliver only three sentences. However, beyond the proceedings of the courtroom, the ECCC offers some significant lessons about the potential and pitfalls of international criminal justice in challenging political contexts.
The ECCC represents a unique accountability effort in a part of the world where very few have answered for their atrocity crimes, and it was established despite the negotiated defections of the Khmer Rouge leadership. At the same time, the court’s very narrow prosecution has some deeply problematic political implications. For proponents of international criminal justice, the ECCC offers a glimpse of what is possible when political circumstances become favorable to accountability. It also offers some sobering lessons of the limitations of “localized” justice mechanisms.
An Unlikely End to Impunity
During Democratic Kampuchea, Khieu Samphan became the formal head of state in 1976. When the frail 91-year-old was wheeled into the courtroom in the outskirts of Phnom Penh on Sept. 22, his fate was sealed: due to the 2016 judgement in the first part of the case against him (Case 002/01), which had focused mainly on the forced evacuation of Phnom Penh and execution of soldiers from the previous regime, he was already serving a life sentence.
Still, when the audience in the courtroom was asked to rise for the judges, there was a quiet expectation in the air. Some of the best-known victims and civil parties, Chum Mey and Bou Meng, were present, as were representatives from the hard-hit Cham minority. Case 002/02 included charges of genocide conducted against the Cham and the Vietnamese, forced marriages and rape within the context of forced marriage, and several instances of internal purges. Khieu Samphan’s defense raised both procedural and merits arguments, trying to downplay his role in the Khmer Rouge and his knowledge of and influence over crimes committed. Although of no practical consequence, the sentence against him was of high symbolic importance. Looking back to the time when accountability for the Khmer Rouge was first discussed, and the balance of power made trials seem highly unlikely, the ECCC’s ability to issue a verdict in the case demonstrated a remarkable turning of the tables.
When the Cambodian co-prime ministers asked the U.N. to support an international tribunal for the Khmer Rouge in 1997, the dilemma of peace versus justice was real. Although the Khmer Rouge had been defeated in 1979, the group continued its fight for a revolution and against the Phnom Penh government. When Vietnam invaded Cambodia and ousted the Khmer Rouge from Phnom Penh in January 1979, the Khmer Rouge fled westwards to the regions bordering Thailand. Regional powers as well as the West saw the Khmer Rouge as a useful buffer against Vietnam. According to this Cold War logic, the new Vietnam-backed regime in Phnom Penh was a bigger problem than the genocide it had halted. Together, the military support from China, safe haven in Cambodian-Thai border regions, political backing from the West during the Cold War (including Cambodia’s seat at the U.N. until 1992), and the lack of recognition of the new regime in Phnom Penh, ensured that the Khmer Rouge remained an insurgent force until the late 1990s.
In their fight against the Khmer Rouge, the Cambodian government led a double-headed strategy: it offered Khmer Rouge leaders and members amnesties and positions in the government and military in return for defections. At the same time, the military continued to fight against those who did not defect. Some captured Khmer Rouge members were imprisoned, and added to this was the threat of an international tribunal. Meanwhile, the Khmer Rouge disintegrated due to internal struggles.
When the Cambodian government finally brought down the Khmer Rouge as a military force, Prime Minister Hun Sen (who, shortly after the letter to the U.N. was sent, had ousted his co-prime minister in a coup) began advocating for a trial against only those who had not defected, including senior figures like “brother number four” Ta Mok. One of the Khmer Rouge leaders, Ieng Sary, had been granted a formal amnesty (although crafted in a way as to eventually not bar criminal investigations at the ECCC). Even after the U.N. and Cambodia signed the agreement to set up a court in 2003, few observers in Phnom Penh believed that the trials against the Khmer Rouge leadership would ever become reality. Several prominent Khmer Rouge figures lived freely for years after the ECCC was agreed upon. These included Khieu Samphan, who remained in the Khmer Rouge stronghold Pailin close to the Thai border. Therefore, the arrests of Ieng Sary, Ieng Thirith, Nuon Chea, and Khieu Samphan in 2007 marked a breakthrough for the ECCC. Suddenly, the prospects for a trial against the Khmer Rouge leaders seemed tangible.
What Kind of Justice?
Since the negotiations over a justice mechanism started, there have been profound disagreements between the U.N. and the Cambodian government over the mechanism’s structure and composition, disagreements which have affected perceptions of the court to this date. At the heart of the disagreement was the question of control over the court. Since Hun Sen successfully brought down the Khmer Rouge and consolidated his own grip on power, it became clear that he would not allow a purely international tribunal to be constituted, although this was the solution he pointed to in the 1997 letter. The U.N.’s group of experts and negotiators on their side never trusted a Cambodian controlled court to be independent of political influence.
The breakdown of the Khmer Rouge as a military threat and the willingness of Hun Sen to negotiate with the U.N. over a tribunal were preconditions for the ECCC to become reality, as were the end of the Cold War and the evaporation of international support for the Khmer Rouge. Added to this was the upsurge in international criminal justice. As negotiations over accountability for the Khmer Rouge proceeded, another precondition became clear: the U.N. had to sign on to a deal it had initially rejected.
The negotiating team from the U.N., and the Secretary-General, had strongly advised against a majority of Cambodian judges, fearing it would lead to political influence over the court. The solution that was introduced as a safety valve against political interference was the “supermajority” voting solution: a majority of four out of five judges was needed for every decision by the trial chamber, and a majority of five out of seven in the supreme court chamber. In effect, this would require an “international” vote for every decision. With this solution, the Cambodian judges could not issue judgements without the support of an international judge.
What this hybrid structure with the “supermajority” procedure and parallel international and Cambodian co-prosecuting and co-investigating judges did not prevent was the potential to significantly delay the legal process. Two factors added to this risk: the advanced age of the Khmer Rouge leaders, and voluntary funding of the court, meaning that “donor fatigue” would eventually set in. As the ECCC became operational, all these risks materialized. A particular concern for most observers of the court were developments in Cases 003 and 004.
The delays and eventual endings of investigations in Cases 003 and 004 resulted in an extremely narrow application of the court’s personal jurisdiction, which is exactly the fear that remained despite the supermajority voting mechanism.
The Political Implications of a Narrow Prosecution
The prosecution of five individuals – only three of whom lived to receive judgements – for one of the worst atrocities in human history necessarily represents deeply inadequate justice for the approximately 1.7 million victims of the Khmer Rouge regime. The significance of this very narrow interpretation of the court’s personal jurisdiction goes far beyond the disappointment for those who had hoped for a broader prosecution. A look at Cambodian political history back to the overturn of the Khmer Rouge by Vietnam in 1979 offers invaluable context.
During the internal purges of the Khmer Rouge, driven by increasing levels of paranoia, thousands of Khmer Rouge defected to Vietnam. Among them was Hun Sen, then a Khmer Rouge commander. In addition to its communist revolution and agrarian utopianism, the Khmer Rouge fought a war against Vietnam over contested border areas in the lower Mekong. Indeed, a deep-rooted racism against Vietnamese was just as important, or even more important, than communist utopianism for the Khmer Rouge. Khieu Samphan himself argued in his defense that he only wanted to ensure his country’s independence vis-à-vis Vietnam. The antagonism against Vietnam predates and extends far beyond Khmer Rouge rule. Therefore, when Vietnam invaded Cambodia with a combination of Vietnamese troops and Khmer Rouge defectors in 1979 and installed its puppet government in Phnom Penh, the new government needed to establish its political legitimacy.
The person that eventually emerged as the most talented political leader from the group installed by Vietnam was Hun Sen. Due to the Western and Chinese support for the Khmer Rouge as a buffer against Vietnam, there was no internationally coordinated relief effort to the Cambodian population. The Khmer Rouge remained a serious military threat to Phnom Penh until well into the 1990s. Therefore, Phnom Penh was heavily reliant on Vietnamese support until the end of the Cold War made the 1991 peace agreement and U.N. peacekeeping mission possible. The reliance on Vietnam was always a political problem for the government in Phnom Penh. Against this background, Hun Sen has needed to build his legitimacy on the defeat of the Khmer Rouge. Being a former Khmer Rouge commander himself, it has also been vital to him to frame the Khmer Rouge crimes as those of a small “genocidal clique.”
In light of this context, I have argued that one of the most serious dilemmas of the ECCC is the fact that a U.N.-backed process against a very small number of Khmer Rouge leaders is politically beneficial to an increasingly repressive Cambodian government, and particularly Hun Sen himself. A core lesson from the justice effort in Cambodia is the need to factor in the political side effects of illiberal transitional justice mechanisms.
Was the ECCC Worth It?
Nineteen years after the U.N.-Cambodian agreement, 15 years after the arrests of the Khmer Rouge leadership, we have reached the end of the long and at times complicated legal process. Critics of the ECCC have been vocal. The trials have suffered several delays, and defendants have passed away during the process. Moreover, signs of political influence have been clear. Among some observers, the disputes surrounding Cases 003 and 004 have been damaging for the court’s reputation.
Opinions on the ECCC depend on the expectations one has towards the nature and effects of international criminal justice. A “hybrid” international-national court with a majority of Cambodian judges was always going to be contested. As Alex Hinton writes, there are different “camps” with different perspectives on the ECCC. Pragmatists who do not expect perfect or transformative justice may appreciate the achievements of the Khmer Rouge trials, despite the obvious shortcomings. Arguably, the most positive effects of the trials have come from Cambodian individuals and organizations who have used this historic opportunity to document events, raise awareness, and spread knowledge of the history of the Khmer Rouge period. Hopefully, their efforts will continue after the ECCC closes its doors.
Those who expected the hybrid court model to have positive legacies on the Cambodian judiciary or democratic development have been disappointed. Influences have rather been from the clientelist Cambodian legal culture on the proceedings of the ECCC than the other way around. Over the last few years, the Cambodian government has consolidated its authoritarian rule, and the ECCC has delivered a version of history that fits Hun Sen’s political project. The very limited capacity of the trial process itself to have a positive influence on an authoritarian legal and political culture is a sobering lesson from the legal process against the Khmer Rouge.
Still, the process that ended last month with a life sentence against a frail 91-year-old in a wheelchair is significant. On a moral level, it is imperative to rebut the efforts from the Khmer Rouge leaders to whitewash their role in the political experiment that took the life of almost one-fourth of the Cambodian population and severely harmed the lives of many more. Khieu Samphan’s defense strategy was to downplay his own role in the leadership of Democratic Kampuchea, claiming he knew little of his people’s misery and only wanted to defend the country against Vietnamese aggression. But Khieu Samphan was head of state. The strongest message from the judges at the final day of the ECCC was their refusal to let him escape the responsibility of that position, calling his defense strategy an “alternative interpretation of the evidence.” The Supreme Court Chamber stated that the Communist Party of Kampuchea’s (CPK) plan for a socialist revolution was criminal in nature and rejected Khieu Samphan’s claims that the revolution was a purely political move. In a judgement largely filled with dry legal jargon, this statement stood out: “This Chamber considers that by no stretch of the imagination could it be seriously stated that the CPK revolution was implemented in a benevolent or altruistic manner.”
As the curtains fell – literally – on the Khmer Rouge tribunal, it felt like an era had come to an end. Initially proposed in the late 1990s – the heyday of international criminal justice – it is unlikely that a similar tribunal could be set up in this region today. For all its problems and shortfalls, the ECCC has managed to sentence a head of state for genocide. In a region where authoritarianism is on the rise, the significance of this should not be underrated.