Former Khmer Rouge leader "Brother No. 2," Nuon Chea, at the Extraordinary Chambers in the Courts of Cambodia on the outskirts of Phnom Penh, Oct. 16.Mark Peters/Reuters
As the political battle escalates over the future of the International Criminal Court's cases in Kenya, whose sitting president, Uhuru Kenyatta, stands accused of crimes against humanity, events thousands of miles away, at the lesser-known trial of two former Khmer Rouge leaders, underscored why justice for grave crimes matters and how hard it is to secure.
In a crowded courtroom last week outside Phnom Penh, Cambodia, lawyers for victims in what is known as Case 002 began their closing arguments. They recounted the Khmer Rouge's mass evacuation of Phnom Penh and other towns and cities, followed by summary executions, starvation, forced labor and the deaths of close to 2 million people from April 1975 to January 1979. A witness said that at one killing site, "bodies were piled up without being buried," then "bulldozers were brought in to hastily cover up" the incriminating scene. As part of a forced-marriage policy designed to foster procreation, one victim testified, "surveillance teams of militiamen would come and observe" men and women having sex and people were warned they would be executed if they did not sleep together. "We were reduced," another witness said, "to monkeys."
Two of the four people accused of being responsible for these policies are Nuon Chea — "Brother No. 2," the infamous second in command to Pol Pot (who died in 1998) — and former head of state Khieu Samphan. Now in their 80s, the two men deny responsibility for what happened more than three decades ago.
The very conduct of reasonably competent and fair proceedings addressing complex crimes is a substantial accomplishment for Cambodia's legal system. When issued sometime in 2014, the verdict of the United Nations–backed tribunal, with the prior conviction of a notorious torturer at a Khmer Rouge detention center, will send an important message: Basic norms of human behavior, previously shattered, persist and apply to all.
The court has also, in the words of a senior diplomat, helped "open the Pandora's box within the family" of questions long considered taboo: What happened under the Khmer Rouge? Where were you? What did you do? Thanks to the court's efforts, long-deferred discussion about a traumatic period in this country's history — among parents and children, teachers and students — is under way.
These achievements, while potentially significant, are tentative. Three major challenges remain.
First, the Cambodian government, long an ambivalent partner of the tribunal, has consistently made clear, at the highest levels, its vehement opposition to two other cases still under investigation. Though these cases (known as 003 and 004) are officially confidential, they reportedly involve four other surviving former senior Khmer Rouge officials. Capitulating to such pressure — by failing to ensure that these cases proceed to their judicial conclusion — would directly undermine the judicial independence the court is meant to embody.
Second, despite heroic efforts by the secretary-general's special expert on United Nations assistance to the Khmer Rouge trials, it is becoming increasingly difficult to sustain financial support for a seven-year effort that has already cost more than $200 million. Japan, which had provided a plurality of the court's financing, will do so no longer. As yet, no one else has stepped forward to fill the gap. Two weeks ago, Cambodian Prime Minister Hun Sen agreed to release $1.8 million of government funds to pay court staffers, who have endured prolonged periods without pay, through the end of the year. However, it is not yet clear if this pledge constitutes funds beyond the contribution the government already owed.
Finally, time is not on the court's side. Of four defendants initially charged in Case 002, one has died (Ieng Sary), and one has been found unfit to stand trial (Ieng Thirith). Given how long after the Khmer Rouge's fall it took to launch this court, the advanced age of the accused has proved a major obstacle.
Many observers, including officials inside the court, warn it will be difficult, if not impossible, to surmount these complications. Government intransigence to further cases is unlikely to yield. Donor countries will not fund the court much longer. The risk of losing another defendant to death or illness is increasing.
Reluctant to acknowledge this unfortunate reality, some U.N. officials have stated that all pending cases must proceed to judicial conclusion — including a second trial of Nuon Chea and Khieu Samphan on another portion of the indictment in Case 002. However correct in principle, this position seems increasingly untenable in practice. As the pressures of politics, finance and age accumulate, several ideas have surfaced to bring the proceedings in cases 003 and 004 to a premature end. Such proposals include stretching the law beyond recognition to find that the accused are not properly before the court or simply sending the cases, once investigated, to ordinary Cambodian courts for trial. None of these ideas would do justice to the victims or the principles on which the court was founded.
Since Hun Sen's ruling Cambodian People's Party of suffered an electoral setback in July, Phnom Penh has been abuzz with a sense that people are more willing to say what they think. The international community should reinforce this new openness.
The victims of Khmer Rouge crimes are entitled to expect the completion of all cases before the court. However, if in the end the Khmer Rouge tribunal is not able to fulfill its mission, the real reasons — whether lack of political will or money — should be made clear. Failing to level with the Cambodian people would jeopardize the hard-won initial gains of a valuable if troubled experiment in international justice.
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