Necessary Scapegoats? The Making of the Khmer Rouge Tribunal

Necessary Scapegoats? The Making of the Khmer Rouge Tribunal: Stéphanie Giry

David van der Veen/AFP/Getty Images
Cambodia's Prime Minister Hun Sen (left) shaking hands with former Khmer Rouge foreign minister Ieng Sary, October 22, 1996

This spring, almost a decade after its difficult birth, the joint Cambodian-UN tribunal set up to prosecute the officials who orchestrated the Khmer Rouge’s worst crimes seemed finally to be gaining momentum. In February, the Extraordinary Chambers in the Courts of Cambodia sentenced Duch, the head of the regime’s most notorious torture center, to life in prison. A month later, Duch appeared as a key witness in the court’s second and most important case, the trial of the only remaining members of Pol Pot’s immediate entourage: Nuon Chea, the Khmer Rouge’s chief ideologue; Ieng Sary, the foreign minister; and Khieu Samphan, the head of state. At last, the tribunal appeared to be making real progress toward finding out why, or at least how, the Khmer Rouge killed some 1.7 million Cambodians between 1975 and 1979.

Outside the courtroom, though, a crisis was erupting. On the very first day of Duch’s testimony, a Swiss judge tasked with investigating other former Khmer Rouge officials resigned, citing “egregious dysfunctions” at the court. As a mixed tribunal, the ECCC performs its most important functions—investigating, prosecuting, defending the accused, judging—with teams that include both Cambodian and international appointees. As he quit, the judge said that for months his Cambodian counterpart had stonewalled his efforts to pursue two cases against five mid-level Khmer Rouge officials, each one thought to be responsible for 40,000 to 100,000 deaths—far more than even the more than 12,000 deaths ascribed to Duch. The judge’s dramatic announcement was the strongest accusation yet that the Cambodian government has been trying to sabotage the tribunal’s work.

Behind this story of remarkable breakthroughs and confounding setbacks stands Cambodia’s protean leader, Hun Sen, one of the longest-serving prime ministers in the world. Hun Sen has long been keen to go down in history as the man who brought the surviving leaders of the Pol Pot regime to justice. But as a one-time Khmer Rouge battalion commander, he knows only too well that important members of the governing Cambodian People’s Party (CPP) have complicated ties to the former regime and that more investigations down the Khmer Rouge chain of command could expose their own shady pasts.

No less responsible for the ECCC’s zigzagging course are the UN, which co-runs the court, and the court’s major donors: Japan, the European Union, Australia, and the United States. The ECCC’S foreign backers have largely let Hun Sen have his way, despite much talk of accountability and universal values. They, too, seem eager to present themselves as guardians of international justice for as small a political price as possible.

Although international criminal tribunals often serve the specific needs of a few powerful players, the Khmer Rouge tribunal may stand apart for so effectively dispensing justice in the service of political expediency. The ECCC may have the formal trappings of an independent institution, but it is best understood as the judicial chapter in the awkward, and often dirty, story of political accommodations that Hun Sen, the Khmer Rouge, the United Nations, and major states have been making with one another for almost forty years.

Digital Archive of Cambodian Holocaust Survivors
Khmer Rouge in Phnom Penh, April 17, 1975

When in 1997 Hun Sen asked the UN for help setting up a court to try the Khmer Rouge, he had already distinguished himself as a master political operator. Though he had been a mid-level Khmer Rouge cadre, in 1977 he defected from the movement to Vietnam, Cambodia’s enemy at the time. Two years later, when the Vietnamese invaded Cambodia, he was installed as Cambodia’s foreign minister. He remained in the government throughout the Vietnamese occupation during the 1980s.

Then the USSR collapsed, and by 1990, Vietnam, a Soviet ally, had withdrawn from Cambodia. Over the next few years, the UN helped broker a peace settlement; Cambodia was to become a model for state reconstruction. In 1993, elections were held. From those Hun Sen once again reemerged at the top, first as co-prime minister and then soon enough, after wresting more power still, as sole prime minister.

It was the late 1990s, and remnant factions of the Khmer Rouge were still waging sporadic attacks on government forces. One of Hun Sen’s strategies was to bring some of these groups over to the government’s side; in 1996, he even obtained a royal amnesty for Khmer Rouge foreign minister Ieng Sary. But he knew that formally prosecuting top members of Khmer Rouge would be a chance to cast himself as a savior-statesman, the leader who would pacify Cambodia after decades of conflict. It would also be an opportunity to burnish his credentials with Cambodia’s foreign aid donors. During the final years of the Cold War, despite wide knowledge of the Khmer Rouge’s atrocities, Pol Pot’s group had held on to Cambodia’s seat at the United Nations, thanks to support from the West, China, and ASEAN, the economic group of Southeast Asian states. (Better to carry on diplomacy with mass murderers than Soviet proxies, the reasoning went.) But the late 1990s were the heyday of special criminal courts, and by then Cambodia’s foreign backers, too, were ready to bring the Khmer Rouge to justice.

Hun Sen’s plan was to have only the Khmer Rouge’s leading figures prosecuted; the movement’s lower officials and rank and file would be reintegrated into Cambodian society, no questions asked. But he faced one particular challenge: how to separate out the members of Pol Pot’s “genocidal clique”—as goes a still-favored expression—from mid-level Khmer Rouge who had had some measure of authority, like himself and some of his colleagues at the CPP.

AP Photo/Heng Sinith, Munshi Ahmed/Bloomberg, Khem Sovanara/AFP/Getty Images
Cambodian leaders with Khmer Rouge ties, from left, Deputy Prime Minister Keat Chhon, Senate President Chea Sim, and National Assembly Chairman Heng Samrin

Drawing that line has been tricky. Cambodia’s current finance minister and deputy prime minister, Keat Chhon, worked in the Khmer Rouge’s foreign ministry—under Ieng Sary, who is now on trial despite the 1996 amnesty—and occasionally acted as an interpreter for Pol Pot. Heng Samrin, the chairman of the National Assembly, was the commander of the Fourth Division of the so-called Eastern Zone, which is suspected of committing war crimes during incursions into Vietnam in 1977. Chea Sim, who has been President of the Senate since 1999, was the party secretary of Sector 20, also in the Eastern Zone, where vast purges are known to have occurred.

There’s also the troubling story of Hor Nam Hong, Cambodia’s long-time foreign minister. He was ambassador to Cuba for the regime of General Lon Nol, which was overthrown by the Khmer Rouge in 1975; Pol Pot’s people called him home, arrested him upon arrival, and sent him to Boeung Trabek, a reeducation camp for diplomats in Phnom Penh. But he was spared—reportedly thanks to the intervention of his former schoolmate Ieng Sary—and is said to have then helped run the camp. A 2002 US embassy cable released by Wikileaks last summer says that Hor Nam Hong and his wife may have “collaborated in the killing of many prisoners.” Last year in France he lost a final appeal in a defamation suit he had brought regarding such crimes.

Hun Sen as a Khmer Rouge battalion commander, 1970s

And then there is Hun Sen himself. In 1975, he headed a battalion that oversaw a brutal crackdown against the Cham, a Muslim minority group in Cambodia that opposed the Khmer Rouge. He has said that he sat out the attack in a hospital, recovering from earlier battle injuries. Historians have yet to contradict him, but some have doubts.

With so few degrees of separation between the crimes of yesterday and the leaders of today, establishing the ECCC was predictably tortuous. It wasn’t difficult for the Cambodian government to agree with the UN and other international negotiators that the tribunal should prosecute genocide, war crimes, crimes against humanity, and violations of Cambodian criminal law. But while UN lawyers favored creating a fully international court–-much like the tribunals for Rwanda and the former Yugoslavia—Hun Sen insisted it be Cambodian.

Even more controversial was the question of who would be prosecuted. In December 1999, with negotiations still under way, Hun Sen announced that only four or five members of the Khmer Rouge regime would be tried. His short list did not include Pol Pot, who had died in 1998, but it included Duch, who had just been arrested, as well as the three senior leaders now on trial. Stephen Heder, a leading American expert on Cambodia, and David Scheffer, at the time the US Ambassador-At-Large for War Crimes Issues, have since said that no such understanding existed. According to them, international negotiators assumed that ten, maybe even fifteen, people might eventually be tried.

Yet correspondence from that time reveals that top UN lawyers repeatedly suggested it was up to the Cambodian government to define the court’s reach. Throughout 2000, they variously wrote to Sok An, who is today arguably Hun Sen’s most powerful deputy prime minister, that determining the ECCC’s ambit was “an internal Cambodian matter,” “a political decision to be taken at the national level,” and “of course for the legislature to decide upon.” The two sides eventually agreed to grant the court authority to try both the senior leaders of the Khmer Rouge and “those most responsible” for the regime’s crimes. Settling on these three vague words may have been necessary to get the court off the ground, but when the UN endorsed them, it was embarking on a joint venture that its own negotiators knew, and acknowledged, the Cambodian government had every reason to control.

ECCC Pool/Mak Remissa
A pre-trial hearing at the Khmer Rouge tribunal, Phnom Penh, February 11, 2010

Duch’s trial (known as “Case 001”) and the investigation against the leaders (“Case 002”) proceeded largely as expected. These were the uncontroversial files, after all: everyone involved could get behind trying the regime’s emblematic torturer and its top brass. And so the ECCC stumbled along, overcoming with more or less grace the hurdles inherent in cases of this magnitude, investigated more than three decades after the facts, run by a mixed Cambodian and international staff, and operating under a combination of common law and civil law.

The court struggled with low-level corruption and an elaborate kickback scheme benefiting a senior administrator. There was also resistance from the Cambodian government whenever the investigating judges came too close. In 2009 six witnesses who had been subpoenaed to talk about Case 002 simply refused to meet the judges. Among them were four of the senior government officials known to have ties to the Khmer Rouge: Keat Chhon, Heng Samrin, Chea Sim, and Hor Nam Hong. Still, the case against Duch went to trial, and in 2010 a formal indictment was completed against the surviving Khmer Rouge leaders.

When it came to other suspects—names not on Hun Sen’s original list—it was a different story. Laurent Kasper-Ansermet, the Swiss judge who resigned this spring because of “constant and active opposition” from his Cambodian counterpart, was trying to investigate the five mid-level Khmer Rouge officials targeted in Cases 003 and 004. As soon as the court had officially opened those cases back in 2009—at the instigation of the international prosecutor and the international investigating judge then in those posts—Hun Sen had declared that civil war would break out if they were allowed to proceed.

Khmer Rouge suspects Meas Mut (left), the former army chief, and Im Chaem, a former regional leader

This wasn’t a very plausible threat: most Khmer Rouge fighters are now well into their 50s or older and were disarmed years ago. But the hyperbole revealed both Hun Sen’s real unease and his skill at manipulating the court to placate his cronies in the ruling party. The suspects in Case 003—Meas Mut, the Khmer Rouge’s army chief, and Sou Met, its navy chief—are now well-connected two-star generals. Although the three suspects in Case 004—Ta An, Ta Tith, and Im Chaem, all regional leaders under the Khmer Rouge—are not powerful today, some influential members of the CPP arguably had as much authority under the former Khmer Rouge as they did. If those three can be tried, who might be next?

Taking the hint, the Cambodian prosecutor and the Cambodian investigating judge, You Bunleng, quickly found legal obstacles to slow Cases 003 and 004 to a crawl. At first, the UN and the court’s foreign backers hardly complained; they were focused on seeing through the cases against Duch and the senior leaders. And as long as the court’s international staffers pushed for investigating the two additional cases in the face of local resistance, donors could gesture at the process’s semblance of integrity, at least on their side.

But then something bizarre happened: the court’s foreign investigating judge came out against pursuing Cases 003 and 004. In 2011, just four months after taking over the international slot in the investigating judges’ office, the German judge Siegfried Blunk announced that he was formally closing the inquiry for Case 003. (Case 004 remained open, but no work was being conducted.)

This was a puzzling decision. A considerable amount of evidence already suggested that the two suspects, Meas Mut and Sou Met, had orchestrated vast purges within their ranks. And documents made public during Duch’s trial indicated that Sou Met had transferred prisoners into Duch’s custody to be tortured and executed. The international prosecutor asked for more field investigations; Blunk refused. Half of Blunk’s team resigned, including Heder, who had been assisting the ECCC for several years by then. Blunk’s motivations were so unclear that his colleagues and court observers started trading theories about incompetence and disloyalty, unhappy coincidences and ungodly conspiracies.

When I met Blunk in Phnom Penh last July, he had been refusing to speak to the press. To me, he would say only that he had applied no “fanciful notions” and had relied on the precedent set by the special court that is examining major crimes committed in Sierra Leone between 1996 and 2002. If a suspect’s “authority in the command structure” was limited, if he had “little room to maneuver,” Blunk told me, “no amount of further investigation will change that—no matter how many mass graves are opened or crime scenes are investigated.”

Whatever the judge’s logic–-and officially no one knew what it was since he hadn’t made any public statements—diplomats from donor countries didn’t seem particularly troubled. The week I saw Blunk, Stephen Rapp, the US Ambassador-At-Large for War Crimes Issues, was in Phnom Penh for the official opening of the trial in Case 002. One day at a press conference, even as he was fielding tough questions about how Hun Sen seemed to be dictating the court’s agenda, Rapp said that “reasonable people” could disagree about which suspects fell within the ECCC’S mandate. He explained that in 2007, while he was chief prosecutor for the special Sierra Leone tribunal, he had decided to indict only people at the “top level in command,” not regional or divisional operatives. Rapp couldn’t have given Blunk a better way out of Cases 003 and 004.

When Blunk eventually did resign, last October, it was just days before a procedural ruling criticizing him for secretly backdating orders under appeal. He looked worse than ever. Still, the UN and the ECCC’s foreign backers showed little interest in examining his work. During a special visit to Cambodia, the UN’s top legal officer, Patricia O’Brien, gave a press conference in which she explained why there would be no inquiry: too complicated and too cumbersome. At a meeting with NGOs in Phnom Penh days later, according to the Cambodia Daily, O’Brien said that if anything were uncovered after a probe, the defense teams would “have a field day” and “undermine Case 002.” The message was clear: whatever impropriety the investigating judges may have committed, better to leave it be. Save Cases 001 and 002 and bury the rest.

The tribunal's former international investigating judge, Laurent Kasper-Ansermet

By early this year, it was difficult to imagine how Cases 003 and 004 might proceed. Still, Kasper-Ansermet, the Swiss judge who had replaced Blunk in December, threw himself into the task; he even tweeted about wanting to do the job right. Immediately he got into trouble. Cambodia’s Supreme Council of Magistracy, on which both the Cambodian investigating judge You Bunleng and the ECCC’s Cambodian prosecutor sit, said it could not recognize Kasper-Ansermet’s appointment: apparently, his tweets violated ethics rules.

Scheffer, who is now the UN Secretary-General’s special adviser to the court, promptly protested that by getting in Kasper-Ansermet’s way the Cambodian government was breaching the ECCC’s foundational treaty. The Secretary-General’s office added that this was sufficient legal ground for the UN to pull out of the entire project. It was also a lot of puffing. Taking this stance so loudly and so publicly left the Cambodian government with no face-saving way to reverse the decision of the magistracy council. In other words, the UN’s move was less a negotiation gambit than an attempt to regain some credibility with disheartened NGOs and victims’ advocates.

Then, in February, the appeals chamber of the court issued its final verdict against Duch. Touted as a historic victory for the Khmer Rouge’s victims, the decision was more remarkable for delivering everything Hun Sen and his supporters might have wanted. It took a severe position—at least by international standards—against the regime’s most recognizable torturer, making little allowance for Duch’s admissions and cooperation or for his illegal detention by a military tribunal from 1999 to 2007. And while the verdict said nothing that might undermine the case against the three senior Khmer Rouge leaders—the court’s, and Hun Sen’s, big prize—it was a death knell for Cases 003 and 004.

Duch had appealed the sentence of the court’s trial chamber by claiming, somewhat implausibly, that he was not among “those most responsible.” The appeals judges might simply have ruled that he was: after all, he did supervise the killing of more than 12,000 people. But in the final verdict they claimed instead that it was neither for them nor for the trial judges to decide whom the court should try. That matter was “exclusively” a “policy decision” for the prosecutors and the investigating judges—precisely some of the people who have been blocking Cases 003 and 004 for more than two years.

This was extraordinary. Judges rarely give up the prerogative to determine the scope of their own authority and in this instance abdicating that power would have major implications. Considering Hun Sen’s adamant opposition to these cases, it was also hard not to interpret the appeals judges’ decision as a political concession. And with no dissenting opinion—not even from any of the three international judges, who have dissented on other matters—it looked like all the key players were agreed on pocket-vetoing Cases 003 and 004.

There’s little reason to expect much change. Kasper-Ansermet, who left his post on May 4 stating he thought the suspects in Cases 003 were among “those most responsible,” has not yet been replaced. In a confidential order addressed to his colleagues at the court, he also recommended that the prosecutors’ office investigate crimes committed during Khmer Rouge incursions into Vietnam in 1977. In particular, he advised interviewing National Assembly Chairman Heng Samrin and Senate President Chea Sim—and intimated doing more. But the prosecutors swiftly issued a press release stating that the relevant facts had already been investigated in Case 002 and that, in any event, it was their “established public position” that “no further cases would be initiated following Cases 003 and 004.”

Preventing the court from embarking on more investigations remains a paramount concern for Hun Sen, who continues to consolidate his power. Cambodia currently chairs ASEAN, and it is trying to secure a seat as a nonpermanent member of the UN Security Council. There were local elections in June—dominated by the CPP—and National Assembly elections will take place next year. Having largely succeeded in neutralizing the Cambodian political opposition over the past few years—by way of anticorruption investigations and defamation lawsuits—Hun Sen is now even more concerned than before with shoring up his patronage network within the CPP.

At the same time, the UN and the court’s international backers are likely to continue invoking high-minded principles while disavowing their unspoken understandings with the Cambodian government. Having come this far on Case 002—and paid much of the $160 million or so tab the court has racked up since 2006—they won’t want to pull out before sentences are secured against Nuon Chea, Ieng Sary, and Khieu Samphan.

Bruno Barbey/Magnum Photos
Killing field south of Phnom Penh, 1996

The only open question, it seems, is whether the controversies rocking the court could derail the leaders’ trial. Lawyers for Nuon Chea—the Khmer Rouge’s chief ideologue—have filed a criminal complaint in a local Cambodian court against Hun Sen and assorted Cambodian government officials for “interfering with the administration of justice at the ECCC.” That won’t go anywhere, of course, but the trial judges in Case 002 issued a statement in May saying that Hun Sen’s various references to Nuon Chea as a “killer” and a perpetrator of “genocide” were “incompatible with the presumption of innocence to which Nuon Chea is entitled.”

The trial judges also added that such accusations by the government would not influence them in “the exercise of their duties.” This assurance, which would have been unnecessary at a properly functioning tribunal, sounded more like an entreaty to ECCC watchers: please believe that this made-to-measure court can be impartial even if it is not entirely independent. That’s a tall order, especially in view of the final verdict against Duch, which has all the makings of a double standard. How can Duch, but not the suspects in Cases 003 and 004, be among “those most responsible” for the Khmer Rouge’s crimes when each of them is thought to be accountable for four to ten times as many deaths as he is?

One lawyer at a prominent NGO in Phnom Penh justified the disparity by calling it “unequal but not unfair.” Or, as a longtime government adviser said to me, considering the “singularity” of Case 001 (Duch’s secret prison was the regime’s most important) and the “sufficiency” of Case 002 (the leaders’ trial is supposed to reveal the workings of the entire regime), “it would be wasteful to prosecute more suspects.” Raoul Jennar, a Cambodia expert from Belgium and until last fall also an adviser to Hun Sen, cast both the problem and its solution like this: “Yes, Duch is a scapegoat, but that’s a political necessity. One cannot afford the luxury of proceeding on the basis of justice alone.”