Thursday, May 11, 2006

The Khmer Rouge, and a region, on trial

By Yin Soeum
Southeast Asia
May 11, 2006

PHNOM PENH and PAILIN - Cambodia is finally set to proceed with a United Nations-prescribed tribunal against former Khmer Rouge leaders for their alleged role in genocide and crimes against humanity, including culpability for the deaths of an estimated 1.7 million people.

Whether the half-foreign, half-Cambodian court will arrive at a credible verdict is very much open to question, however.

International prosecutors are expected to unearth compelling new evidence against former senior Khmer Rouge cadres, some of whom now serve in Prime Minister Hun Sen's government. Hun Sen - himself a former junior-level Khmer Rouge cadre - has repeatedly warned that the proceedings could generate panic

among Khmer Rouge supporters and reignite the civil war that ravaged the country throughout the 1980s and into the 1990s.

The tough-talking premier has more recently presided over a fractious yet largely peaceful political period attended by strong economic growth. And considering the geriatric state of most surviving Khmer Rouge leaders, most doddering in their late 70s and early 80s, as well as the relative calm that has settled over the territories they formerly controlled, the prospect of a renewed civil war seems distant.

There is still a palpable sense of injustice among the Cambodian people, nearly all of whom lost at least one family member to the murderous regime. Hun Sen has on numerous occasions condemned the Khmer Rouge for their past atrocities, yet at the same time provided sanctuary for its former leaders in his government.

The highly anticipated tribunal, where preliminary procedures are scheduled to commence in June and the actual trials by early next year, will put Cambodia's court system to the test. The Supreme Council of the Magistracy, under the auspices of newly crowned King Norodom Sihamoni, last week approved 30 judicial officials for the trial, 13 of whom are UN-appointed foreign nationals.

The make-up and format of the tribunal have been points of heated contention between Hun Sen and the UN since the idea of bringing Khmer Rouge leaders to trial was first broached in 1997. A UN Group of Experts expressed its concerns in 1999 that decisions on whom to investigate and indict, and whom to convict or acquit, would be based on a political agenda rather than the hard evidence in Cambodia's politically pliant courts.

Hun Sen had insisted that the trial take place in Cambodia, presided over by Cambodian judges, and be limited to the period under examination to the Khmer Rouge's Communist Party of Kampuchea (CPK) rule from 1975-79. After years of bickering, the UN has largely acquiesced to Hun Sen's demands in hopes of achieving some measure of accountability for Khmer Rouge leaders.
The five-member trial chambers and seven-member Supreme Court chamber will sit more Cambodian judges than foreign ones, while the Cambodian government and the UN will each provide one prosecutor and one investigating judge. The courts will act on a "super-majority" basis, where judgments must be agreed by at least one foreign judge. However, the same is not true for the co-prosecutors, and the Cambodian prosecutor may veto contested indictments.

That will quickly bring into question who will and will not be targeted for prosecution. The UN Group of Experts had earlier recommended that between 20 and 30 Khmer Rouge leaders stand trial. Hun Sen has balked at the suggestion and has insisted that the royal amnesty granted to former Khmer Rouge foreign minister Ieng Sary in 1996 should make him immune to prosecution.

Significantly, the UN first started negotiating about the tribunal with Hun Sen's government in 1997, coincident with the mass Khmer Rouge defections into his government. Since, Hun Sen had repeatedly backtracked on earlier commitments to establish the tribunal, most recently reneging on providing Cambodia's US$13.3 million share of the $56.3 million total budget for the trial.
Western donors, including the United States, who contribute more than half of his government's annual budget and have applied pressure in support of the tribunal, have recently agreed to $9.6 million for Phnom Penh's share. Donor pressure seems to be the main motivating force behind Hun Sen's decision to move ahead with the trial.

Atrocity alibi
The evidence presented at the tribunal is bound to be contentious. Nuon Chea, 80, known as Khmer Rouge "Brother Number Two", has in interviews with the press denied any knowledge or responsibility for the execution, torture, forced labor or starvation during the CPK's four-year rule. Instead, he has claimed that "foreigners" - a veiled reference to the Vietnamese - were behind a large share of the killings.

"I will answer in front of the court if they need me. I just want to be clear and not just accuse the [Khmer Rouge] alone for genocide," he recently said in an interview with Asia Times Online from his home in the northwestern town of Pailin.

Khieu Samphan, 74, the CPK's former head of state, has similarly denied any knowledge or culpability for alleged genocide and crimes against humanity. Ieng Sary, who is politically protected against prosecution through his 1996 royal amnesty, suffers from a debilitating heart condition and nowadays spends more time in a Bangkok hospital than at his posh Phnom Penh villa. Pol Pot, the regime's infamous leader, died in the jungle along Thailand's border in 1998; Kae Pok, a senior CPK central committee member, died in 2002.

Former junior-level Khmer Rouge officials, including Heng Samrin, now a senior member of Hun Sen's Cambodia People Party, and Hor Nam Hong, currently foreign minister, have remained tight-lipped about their past association with the CPK. Like Hun Sen, they will likely escape prosecution because they fled to Vietnam after the Khmer Rouge began its murderous internal purges and apparently were not involved in the CPK's mass-execution policies.

Initial indications are that Hun Sen hopes that UN-appointed judges are willing to compromise and pin the majority of the blame on two senior Khmer Rouge cadres - Ta Mok, 75, alias "The Butcher", and the less influential but just as brutal Kang Kech Eav, widely known as Duch, who infamously administered the S-21 prison where many of the executions occurred - both of whom are now imprisoned on charges of war crimes and crimes against humanity.

It's unclear that that will be the case, however. The Documentation Center of Cambodia, led by United Kingdom-based academic Stephen Hader, has recently gathered unprecedented documentary evidence that claims to implicate seven senior Khmer Rouge officials for devising and implementing policies of mass execution, torture and other crimes.

The 153-page volume, Seven Candidates for Prosecution, widely available inside Cambodia, uses archival evidence to dissect Khmer Rouge command and control structures and claims to draw clear lines of authority for the policies to top Khmer Rouge officials. The book makes the case for prosecuting seven major Khmer Rouge cadres, including Nuon Chea, Ieng Sary, Khieu Samphan, Ta Mok, Sou Met, Meah Mut and the recently deceased Kae Pok.

As archival evidence is presented at the tribunal, legal analysts predict that the political pressure on Cambodian judges and the local prosecutor for acquittal will likely be immense. There are concomitant fears that a lack of judicial independence among Cambodian judges could result in a UN-endorsed historical whitewash, where many former senior Khmer Rouge leaders are absolved of responsibility for what appears to be their well-documented role in mass executions.

Great power scars
The tribune is also likely to dredge up unpleasant episodes from the region's violence-marred past, including hard evidence of US, Chinese and Thai material support for the Khmer Rouge after they were chased from power and into the jungle by Vietnamese invaders in 1979.

The United States famously funneled "non-lethal" supplies to the Khmer Rouge to establish a buffer against Vietnam continuing its march into Phnom Penh across Southeast Asia and potentially into Thailand, which had dutifully provided the US access to its airfields to bomb Vietnam.

China, currently in the midst of a diplomatic charm offensive in the region that has included large dollops of aid and assistance for Cambodia, then famously took sides with the Khmer Rogue in pursuit of its regional campaign to arm and support communist insurgencies. Underground elements in Thailand's military, meanwhile, profited hugely from supplying arms, ammunition and sanctuary to the Khmer Rouge throughout the 1980s. Pol Pot maintained a residence in Thailand's Trad province, from where he orchestrated many of his military strategies.

Former Khmer Rouge cadres have repeatedly suggested that the tribunal should also take into account the events that led up to the Khmer Rouge's rise to power in 1975 and hold former US leaders, including former national security adviser Henry Kissinger, accountable for their role in the illegal carpet-bombing of Cambodia during Washington's conflict with Vietnam in the 1960s and 1970s. Those suggestions have been batted back out of hand, however.

Some Cambodians question the desirability of dredging up the painful past during a period of relative peace and robust economic growth. On the ground, there is still a palpable fear that the trial could lead to local-level revenge killings.

"Most of us have lived through war for over 20 years," said Lath Lyna, a villager who lives in Pailin, the Khmer Rouge's former stronghold town. "We've all had enough fighting and we certainly don't want more people to die because of the trial."
Some suggest that the more generalized approach of the "Truth and Reconciliation" process employed in South Africa may have been a better model for Cambodia, where local suspicions and resentments still boil under the surface, particularly in areas where former Khmer Rouge officials still have local power.

Many Cambodians wonder whether the UN-led tribunal isn't yet another instance of outside interference in their country's internal affairs, staged more in the interest of superpower politics than real reconciliation. Truth and justice, they fear, will only be a small part of the tribunal's final verdict.



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