Transitional Justice in the Asia-Pacific (23 page)

1
Ben
Kiernan
, ‘The Demography of Genocide in Southeast Asia’,
Critical Asian Studies
, Vol.
35
, No. 4 (2003), pp. 585–597.

2
David
Chandler
,
A History of Cambodia
(Boulder Colorado: Westview Publishers, 2008), p. 259.

3
Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–79 (New Haven: Yale University Press, 2008), p. 458.

4
Tom Fawthrop and Helen Jarvis, ‘Getting Away with Genocide’ (London: Pluto, 2004) pp. 14–15.

5
Chandler
,
A History of Cambodia
and Kiernan,
The Pol Pot Regime
give scholarly accounts of the KR regime. Nick
Dunlop
,
The Lost Executioner
(London: Bloomsbury, 2005) and Haing
Ngor
,
Survival in the Killing Fields
(London: Robinson, 1987) are journalistic accounts.

6
The amnesties are discussed in more detail in the second half of the chapter.

7
Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006).

8
ECCC Budget 2012–13, at:
http://www.eccc.gov.kh/sites/default/files/ECCC%20Budget%202012-2013.pdf
, accessed 24 June 2013.

9
Report: ‘ECCC Financial Outlook’ 30 June 2012, at:
http://www.eccc.gov.kh/sites/default/files/5-Financial%20Outlook%20-%2030%20June%202012.pdf
, accessed 24 June 2013.

10
The ECCC press release on the Duch verdict states, ‘Although finding a minimum of 12,272 individuals to have been detained and executed at S-21 on the basis of prisoner lists, the Chamber indicated that the actual number of detainees is likely to have been considerably greater.’ ECCC press release, at
http://www.eccc.gov.kh/en/articles/kaing-guek-eav-convicted-crimes-against-humanity-and-grave-breaches-geneva-conventions-1949
, accessed 24 June 2013.

11
Michelle Staggs Kelsall et al., ‘Lessons Learned from the ‘Duch’ Trial’, Asian International Justice Initiative's KRT Trial Monitoring Group, December 2009 p. 6.

12
The fourth of the original defendants in Case 002, Ieng Thirith, former Minister of Social Affairs, has been declared unfit to stand trial at present due to her progressive degenerative Alzheimer's disease.

13
Open Society Justice Initiative, ‘The Future of Cases 003 and 004 at the Extraordinary Chambers in the Courts of Cambodia’, October 2012, at
http://www.opensocietyfoundations.org/sites/default/files/eccc-report-cases3and4-100112_0.pdf
, accessed 24th June 2013; KI-Media, “Charged Persons” of Case 003/004 Named in PUBLIC Documents (a Compliation), 9 April 2011, at
http://www.scribd.com/doc/52628662/Charged-Persons-of-Case-003-004-Named-in-PUBLIC-Documents-a-Compilation
, accessed 24 June 2013.

14
Interviews in ‘S-21 The Khmer Rouge Killing Machine’ film, directed by Pithy Pan, and interviews with court staff and Civil Parties conducted by the author in Cambodia in March 2011.

15
ECCC, ECCC Surpasses Milestone of 100,000 Visitors press release, 4 January 2012, at
http://www.eccc.gov.kh/en/articles/kaing-guek-eav-convicted-crimes-againsthumanity-and-grave-breaches-geneva-conventions-1949
, accessed 24 June 2013
,
and interviews with senior court officials, March 2011. The total number of public visitors to the court since February 2009 has now exceeded 110,000.

16
Remarks made at event ‘The Khmer Rouge Tribunal and the Challenges of the Hybrid Model’, SOAS, London, 17 June 2009.

17
Christopher
Shay
, ‘Cambodia's Trial of the Century, Televised’,
Time Magazine
, 11 September 2009, at
http://www.genocidewatch.org/images/Cambodia_09_09_11_Cambodia_s_trial_of_the_century
,_televised.pdf, accessed 24 June 2013.

18
Human Rights Center, University of California Berkeley, ‘So We Will Never Forget’, January 2009, at:
http://www.law.berkeley.edu/HRCweb/pdfs/So-We-Will-Never-Forget.pdf
, accessed 24 June 2013.

19
Human Rights Center, ‘So We Will Never Forget’, p. 31.

20
Human Rights Center, ‘So We Will Never Forget’, p. 32.

21
Human Rights Center, University of California Berkeley, ‘After the First Trial’, June 2011.

22
Interview with Youk Chhang, Director of the Documentation Center of Cambodia, March 2011.

23
Elena
Lesley
, ‘Court Staffers Confirm Corruption at Tribunal’,
Phnom Penh Post
, 27 February 2009.

24
John
Hall
, ‘Trial on Trial’,
New York Times
, 11 March 2009, at
http://www.nytimes.com/2009/03/10/opinion/10iht-edhall.1.20723411.html?pagewanted=all&_r=0
, accessed 24 June 2013.

25
Interviews with senior court officials, March 2011.

26
See ECCC webpage ‘The address of the ECCC changed’, 29 July 2006, at
http://www.eccc.gov.kh/en/articles/address-eccc-changed
, accessed 24 June 2013.

27
Open Society Justice Initiative, ‘Recent Developments at the ECCC’, November 2011, p. 1.

28
Neth
Pheaktra
and Georgia
Wilkins
, ‘Judges should Focus on Current KR Suspects: Government’,
The Phnom Penh Post
, 12 March 2008; Open Society Justice Initiative, ‘Political Interference at the Extraordinary Chambers in the Courts of Cambodia’, July 2010.

29
Georgia
Wilkins
, ‘Government Rejects Charges of Political Manipulation at ECCC’,
The Phnom Penh Post
, 29 May 2009.

30
Ian
MacKinnon
, ‘Prosecutor Wants to Indict Five More Khmer Rouge’,
Financial Times
, 7 September 2009, at
http://www.ft.com/cms/s/0/e6dc489e-9b98-11de-b214-00144feabdc0.html#axzz2X7iVx01o
, accessed 24 June 2013.

31
Open Society Justice Initiative, ‘Recent Developments at the ECCC: December 2010 Update.’

32
The Cambodian public is also split over whether the court should try more than the current four detainees. A 2009 survey by the Documentation Center of Cambodia found that 52% of the 1,100 people questioned supported further indictments. See ‘Indict No More’,
Voice of America
, 25 March 2009, at
http://www.voacambodia.com/content/a-40-2009-03-25-voa3-90171967/1356797.html
, accessed 24 June 2013.

33
ECCC Press Release by the International Co-Investigating Judge, 10 October 2011, at
http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/2012-12-24%2016:37/E189_3_1_1.1.3_EN.pdf
, accessed 24 June 2013.

34
Press Release by the Reserve International Co-Investigating Judge, 4 May 2012, at
http://www.eccc.gov.kh/en/articles/press-release-reserve-international-co-investigating-judge
, accessed 24 June 2013.

35
Sebastian
Strangio
, ‘Limited Liability for Khmer Rouge Tribunal’,
Asia Times
, 12 May 2011, at
http://www.sebastianstrangio.com/2011/05/12/limited-liability-for-khmerrouge-tribunal/
, accessed 24 June 2013. In November 2011 the Open Society Initiative began to call for the UN to establish an Independent Inquiry into ‘allegations of judicial misconduct, incompetence, and lack of judicial independence by the co-investigating judges’ (‘Recent Developments’, November 2011, p.2). There is no sign at present that the UN will heed this call.

36
Interviews with senior court officials, March 2011.

37
Bridget
di Certo
, ‘KRT Pay Freeze Will Linger’,
Phnom Penh Post
, 30 January 2012.

38
Peter
Maguire
, ‘Cambodia's Troubled Tribunal’,
New York Times
, 28 July 2010, at
http://www.nytimes.com/2010/07/29/opinion/29iht-edmaguire.html
, accessed 24 June 2013.

39
ECCC webpage ‘How is the court financed?’, at
http://www.eccc.gov.kh/en/faq/how-court-financed
, accessed 24 June 2013 and ECCC Budget 2012–13, at:
http://www.eccc.gov.kh/sites/default/files/ECCC%20Budget%202012-2013.pdf
, accessed 24 June 2013.

40
Human Rights Center, ‘So We Will Never Forget’, pp. 34–35.

41
Julia
Wallace
, ‘The Eccentricity of Evil: A Khmer Rouge Leader Goes on Trial’,
The Atlantic
, 12 April 2011, at:
http://www.theatlantic.com/international/archive/2011/04/the-eccentricity-of-evil-a-khmer-rouge-leader-goes-on-trial/237179/
, accessed 24 June 2013.

42
Press Release: Statement from the National Co-Prosecutor Regarding Case File 003, 10 May 2011, at
http://www.eccc.gov.kh/sites/default/files/media/5-Press%20release%20by%20the%20National%20Prosecutor-10%20May%202011-Eng.pdf
, accessed 24 June 2013. The Supreme Court Chamber found in the Duch judgment that ‘the term “senior leaders of Democratic Kampuchea and those who were most responsible” refers to two categories of Khmer Rouge officials which are not dichotomous…Both categories are “suspects” subject to criminal prosecution before the ECCC.’ Paragraph 9, Summary of Duch Appeals Judgment, at:
http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/03022012Summary-Eng.pdf
, accessed 24 June 2013. This judgment is significant in that it leaves open the possibility of prosecuting those who were not ‘senior leaders’, e.g. the accused in Cases 03 and 04.

43
On reparations at the ECCC see Renée Jeffery, ‘Beyond Repair? Collective and Moral Reparations at the Khmer Rouge Tribunal’,
Journal of Human Rights
(forthcoming).

44
Paragraphs 65–68 of Duch Appeals Judgment.

45
ECCC webpage ‘Introduction to the ECCC’, at
http://www.eccc.gov.kh/en/about-eccc/introduction
, accessed 24 June 2013.

46
Actual casualties are unknown. Kiernan estimates 150,000 (
The Pol Pot Regime
, New Haven: Yale, 2002), but some estimates are upwards of 600,000 (for instance, Christopher
Hitchens
,
The Trial of Henry Kissinger
, London: Verso, 2001).

47
Ben
Kiernan
and Taylor
Owen
, ‘Roots of U.S. Troubles in Afghanistan: Civilian Bombing Casualties and the Cambodian Precedent’,
The Asia-Pacific Journal
, 28 June 2010, at
http://www.japanfocus.org/-ben-kiernan/3380#
, accessed 24 June 2013. See also William
Shawcross
,
Sideshow: Kissinger, Nixon and the Destruction of Cambodia
(New York: Cooper Square Press, 2002).

48
‘Facing Genocide’ film, directed by David Aronowitsch and Staffan Lindberg.

49
Fawthrop and Jarvis,
Getting Away with Genocide
, p. 25.

50
Fawthrop and Jarvis,
Getting Away with Genocide
, p. 18 and pp. 64–66.

51
Haing, Survival in the Killing Fields, p. 414; Dunlop, The Lost Executioner, p. 186.

52
Fawthrop and Jarvis,
Getting Away with Genocide
, pp. 52–70.

53
Fawthrop and Jarvis,
Getting Away with Genocide
, p. 26.

54
Fawthrop and Jarvis,
Getting Away with Genocide
, p. 98.

55
Margot
Picken
, ‘The Beleaguered Cambodians’,
New York Review of Books
, 13 January 2011, p. 4.

56
Kassie
Neou
and Jeffrey C.
Gallup
, ‘Human Rights and the Cambodian Past: In Defense of Peace Before Justice’,
Human Rights Dialogue
, Vol.
1
, No. 8 (1997), p. 1.

57
The ECCC Trial Chamber ruled on 3 November 2011 that the 1996 amnesty and Royal Decree are inapplicable to breaches of the 1949 Geneva Conventions, genocide and crimes against humanity, reasoning that ‘an emerging consensus prohibits amnesties in relations to serious international crimes, based on a duty to investigate and prosecute these crimes and to punish their perpetrators’ (Trial Chamber Judgment, 3 November 2011, E51/15, paragraph 53). This decision is currently under appeal.

58
Translation of the 1994 Law is taken from Ieng Sary's Supplement to His Rule 98 Preliminary Objection (Royal Pardon and Amnesty), 27 May 2011, at:
http://www.cambodiatribunal.org/sites/default/files/resources/e51_10_en.pdf
, accessed 24 June 2013.