Transitional Justice in the Asia-Pacific (21 page)

Finally, a problem that did not emerge in Case 001, but is likely to slow down or even prevent the completion of Case 002 is the condition of the defendants. Nuon Chea is 86 and Khieu Samphan is 82, and each has health problems. There is a genuine concern that one or both may not live to the end of the trial
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None of the challenges faced by the ECCC are insurmountable, and it has made some notable achievements. However, judging the success or failure of the court requires doing more than examining how the institution is performing according to its own mandate. For a transitional mechanism to be a success – for it to bring some sort of justice and some measure of reconciliation – it should identify and hold to account those most responsible for harms under the previous system. Yet, because of
the very small number of people likely to face trial at the court, the ECCC works to offer impunity to the vast majority of those responsible for the destruction of Cambodia that started in the 1960s and whose effects are still felt now. To understand the challenges facing the ECCC and judge its contribution to a Cambodian transition, the national and international political contexts of the KR regime, the negotiations to establish the ECCC and the contemporary operation of the court must be examined.

At the start of this chapter I noted that the KR regime was in place between 1975 and 1979.
The Introduction to the ECCC page on the ECCC Web site confirms this story:

The Khmer Rouge regime took power on 17 April 1975 and was overthrown on 7 January 1979. Perhaps up to three million people perished during this period of 3 years, 8 months and 20 days. The end of Khmer Rouge period was followed by a civil war. That war finally ended in 1998, when the Khmer Rouge political and military structures were dismantled.
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This is factually correct, and it is the truncated narrative on which justifications for the limited scope of the ECCC rest (that the Chambers should try only the KR leadership and those most responsible for crimes committed during the four-year period), but such a narrative omits too much to be allowed to stand without challenge. A more sensitive history of the period identifies many more actors who could (and should) be held to account – many of whom were and remain keen for the ECCC to be structured and operate in ways that omit consideration of their responsibility.

Few states have been so caught up in the machinations of great power politics in the second half of the twentieth century as Cambodia. The Khmer Rouge did not arise from nowhere – the instability through which it gained sufficient support and room for manoeuvre to launch a coup was aided significantly by the U.S. bombing of North Vietnamese supply
routes in Cambodia that started in earnest in 1969. The United States dropped a higher tonnage of bombs onto Cambodia (a neutral state) than the total of all allied bombs used in the Second World War, in a bombing campaign that is estimated to have killed around 150,000 Cambodians and forced two million from their homes and into towns and cities.
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Between 1969 and 1973, the Khmer Rouge is estimated to have grown from a movement of 10,000 to more than 200,000 troops and militia, with their recruitment propaganda giving prominence to the effects of the U.S. bombing.
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The KR rise was also aided, according to one of the defendants in Case 002, by
U.S. support for the Lon Nol regime which the KR deposed: Khieu Samphan claims he realised that violence was necessary to transform Cambodia after the United States supported a violent coup in 1970 to install Lon Nol.
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Soon after Lon Nol took power, he declared war on the Vietnamese and their perceived communist comrades the KR and allowed a U.S. and South Vietnamese ground invasion of Cambodia that left 11,000 dead.

The KR organised its own violent coup to depose the widely despised and extremely repressive U.S.-sponsored Lon Nol regime and embarked on its mission to create a classless society through radical revolution. But the KR did not rule alone – it relied heavily on Chinese support. Up to 15,000 Chinese technical advisors were deployed to Cambodia between 1975 and 1979.

A cooling in Sino-Vietnamese relations coupled with KR paranoia turned the regime against the Vietnamese, who had initially been thought of as sympathetic to the revolution. Border skirmishes began to break
out, and in 1979 Vietnam invaded Cambodia and deposed the KR – for reasons of realpolitik much more than humanitarianism (as reports of later Vietnamese atrocities attest). China and the United States (pursuing a détente in their relations) worked together for the first time to try to prevent the Vietnamese-installed regime from being recognised as a legitimate government.
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Chinese advisors in Cambodia were replaced by Vietnamese, Soviet, Cuban and East European advisors – which led the U.S. and UK governments to block, well into the 1980s, NGO attempts to deliver emergency aid to the victims of the KR regime who desperately needed it.
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In turn, the Vietnamese and Cambodians tried to block aid being sent to the refugee camps on the Thai border into which the KR (along with thousands of refugees) had been driven, and from where they regrouped and gained control of various zones. The Thai army tried to prevent the influx of refugees in part by driving many (40,000 in one incident alone) of those fleeing war back into Cambodia across mine fields. Thousands died this way – from mines, disease or dehydration.
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Throughout the period 1979 to 1993, the KR were supplied by China and Thailand and supported by many Western states (led by the United States and including the United Kingdom, Canada and Australia) who insisted that the KR delegation retain control of Cambodia's seat at the UN General Assembly long after the scale of atrocities committed by the KR was known.
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From 1979: ‘Not upsetting China over Cambodia became a major plank in Western governments’ approach to resolving the conflict, right up to the drafting and signing of the Paris Peace Agreement twelve years later’.
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The international community tried to starve the PRK of power, in the hope that the regime would collapse. In order to avoid this, the PRK (led by Hun Sen) started a peace and reconciliation initiative with rival factions and began calls to prosecute KR leaders
as part of the peace process. However, during the two years of peace negotiations in Paris from 1989, no Western states supported such trials. Japan proposed a commission of inquiry, but the United States resisted on the basis that it was ‘likely to introduce confusion in the international peace efforts’.
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Peace was unequivocally prioritised above justice by international actors – though the commitment of the PRK to justice is doubtful. The call for trials was driven more by a desire to discredit a rival force in the civil war as it was by ethical principle, as evidenced by the PRK's pragmatic use of amnesties in the 1990s.

Vietnam unilaterally withdrew from Cambodia in 1989, and a peace was finally brokered between the warring factions in 1991, following sustained pressure by China and the United States. The peace agreement did not include a mechanism to hold anyone accountable for past crimes, but rather acted to re-legitimise the KR within Cambodian politics by giving the KR delegation – led by Case 002 defendant Khieu Samphan – rights equal to those of other political parties. The
United Nations Transitional Authority in Cambodia (UNTAC) was deployed in 1992 to organise elections. The elections (which were boycotted by the KR, who refused to participate in the new Supreme National Council) were held in May 1993, and UNTAC left only four months later, at the behest of the UN Security Council (UNSC) rather than because there were any signs that Cambodia was now at peace: ‘[f]or the outside world, the main objective had been achieved, namely to enable the former cold war powers to disengage from a country in which they no longer had any interest’.
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Hun
Sen lost the 1993 elections, but forced his way into a power-sharing coalition by threatening a coup. He worked through the 1990s to defeat the KR politically, including passing the 1994 Law on Outlawing the Group of Democratic Kampuchea. The law included an amnesty clause for rank and file members of the KR, which attracted thousands of
defectors to the coalition's side.
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He also engineered in 1996 a controversial Royal Pardon for his 1979 conviction and immunity from prosecution under the 1994 Law for ex-Case 002 defendant Ieng Sary in exchange for his defection along with his forces to the government.
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These amnesties were useful in bringing peace and accruing power to the coalition, but did not provide for any alternative forms of accountability in lieu of trials, making them hard to categorise as transitional justice mechanisms at all. The 1994 Law did recognise that the KR had committed crimes (the Preamble to the Law states that: ‘criminal, terrorist and genocidal acts [have] been a characteristic of the group since it captured power in April 1975 – forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines, indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia’) and Article 3 noted that KR members were still liable to existing criminal law, but Article 5 gave ‘members’ (as opposed to ‘leaders’) of the political organisation of the military forces of the KR six months to ‘return to live under the control of the Royal Government in the Kingdom of Cambodia without facing punishment for crimes which they have committed.’
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No alternative form of accountability was proposed in the Law, nor any attempted prior to the establishment of the ECCC, the scope of the amnesty (for ‘crimes which they have committed’) was extremely broad, and no human-rights-based justification for
the amnesty was given, nor any commitment to improving human rights included. Even though the 1994 Law stated that KR leaders would still be liable for prosecution, even this provision was overturned in negotiations with Ieng Sary in 1996. The 1994 amnesty and the 1996 pardon and amnesty that followed it were straightforwardly power-political instruments which may have led (although I am not aware of any evidence for this) to improved human rights observance due to a de-escalation of conflict, but certainly did not aim at such a result.
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Only in 1997, when the KR was almost a spent force, did Co-Prime Ministers Hun Sen and
Norodom Ranariddh request assistance from the UN in creating a judicial forum to bring the most senior leaders of the KR to justice. In order to avoid a Chinese veto at the UNSC, the issue was brought to the UN General Assembly, who supported the efforts to hold the KR leadership accountable (the UNGA resolution in 1997 was the first time either of the UN's principal organs had acknowledged the human rights violations of the KR regime).
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The UN Secretary General responded by appointing a ‘Group of Experts’ who recommended that an international criminal tribunal be established on the basis that the Cambodian legal system lacked independence, skilled practitioners and the capacity to conduct trials with due process, and also because of concerns that the KR connections of some of those in power in the country would lead to too much political interference with the court.
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The experts recommended trials of twenty to thirty people and supported a limited temporal and subject matter jurisdiction that excluded consideration of atrocities committed before or after 1975 to 1979 or war crimes committed by other states during 1975 to 1979 in order not to ‘detract
from the unique and extraordinary nature of the crimes committed by the leaders of Democratic Kampuchea’.
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Hun Sen refused to accept a solely international court (in part to keep some level of control over it, but in part because of a deep – and mutual – distrust of the UN and international actors generally). While negotiations to establish a court were underway, Hun Sen continued his policy of de-fanging the KR, this time by welcoming Case 002 defendants Khieu Samphan and Nuon Chea to Phnom Penh as defectors in December 1998 and expressing a desire to ‘dig a hole and bury the past’ in order to avoid war (though stopping short of offering formal amnesty).
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In spite of the public criticism this engendered, it marked the final defeat of the KR – and a corresponding decrease in Hun Sen's appetite for an accountability mechanism, suggesting again that the threat of trials was more a tool used to end the civil war and consolidate his regime's power than supported on the basis of justice.
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After another four years of often acrimonious talks (spurred slowly onwards by Cambodian NGOs and international actors optimistic for success after the drafting of the Rome Statute to establish the International Criminal Court), in 2002 the UN pulled out of the negotiations on the basis that the court being proposed by Cambodia was neither independent nor impartial. Eventually a group of states, led by Japan and including the UK, France and the United States (which had changed policy in 1994 after NGO and Cambodian diaspora pressure had prompted the U.S. Congress to pass the Cambodian Genocide Justice Act, which required the U.S. government to support justice efforts in Cambodia) as well as ASEAN, pushed the UN back to the negotiating table, and a final agreement was reached in 2003.
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This history of the context and negotiations of the ECCC demonstrates both the political and moral implications of the limited jurisdiction
of the court, the shifting and often self-serving motives of the actors responsible for establishing it, and the difficulties involved in judging what success might mean given the history of internal repression and outside interference in Cambodia. Unfortunately the contemporary context of the court does not make assessment any easier – and a closer examination of the motives of both Hun Sen and international actors with regards to the ECCC suggests that the court is too much an instrument of power and misguided principle rather than of justice.