Cambodia: justice for whom?

Last February I tampered with a crime scene. I went out to the wilds of Cambodia, just beneath the hazy Cardamom mountains, to find a secret prison. Codenamed M-99, thousands were killed here more than 30 years ago during Pol Pot’s reign of terror. It took over an hour of walking through abandoned fields and scrub jungle to find it. Now overgrown with clusters of bamboo, the only sign of its existence were strands of rusting barbed wire embedded in a tree. With the help of some locals, I found wooden stocks once used to hold prisoners, took them back to Phnom Penh, and handed them over as evidence to the UN-backed Khmer Rouge tribunal.

In 2004, after years of negotiations, the UN and the Cambodian government reached an agreement to try surviving leaders of the Khmer Rouge, the most effective mass murderers in modern history by percentage of population. The first in the court—known as the Extraordinary Chambers of the Courts of Cambodia—has been Comrade Duch, Pol Pot’s chief executioner and torturer. He is charged with murder, torture, war crimes and crimes against humanity. As head of the Khmer Rouge secret police, Duch is a crucial witness, able to establish the chain of command between the secretive leadership and their killings. His trial has been slow, and a verdict may not be reached until 2010. But prosecutors have a mountain of evidence to convict him.

It is hard to see, however, what this complex process will to mean to ordinary Cambodians, most of whom were born after the regime and know nothing of its horror. The tribunal is an alien system of justice, introduced to a largely uneducated population. And despite years of preparation it is poorly understood by the very people it seeks to serve.

After Pol Pot’s regime was overthrown by the Vietnamese in 1979, justice for its victims was sidelined by the competing interests of China, the US and the Soviet Union. The Khmer Rouge continued to be recognised as Cambodia’s legal representatives at the UN and, because Cambodia was a frontline in the cold war, the US supported a guerrilla coalition that they dominated. In the mid-1990s, the Cambodian government granted amnesties to defecting Khmer Rouge. Justice was exchanged for peace.

Duch’s trial, then, must be seen as a step forward. But not all the crimes will be investigated. The tribunal’s mandate covers only 1975-1979, the years the Khmer Rouge were in power. Yet when I first stumbled upon Duch, hiding in western Cambodia a decade ago (see Prospect, August 2002), he admitted that the killing had begun years before. “Who ever was arrested must die,” he said. “It was the rule of our party.” M-99, for example, was set up in 1973, two years before the takeover. While it is not clear if Duch helped run the prison, he certainly sent prisoners there to be tortured and killed.

Near M-99, I met 81-year-old Sao Yeng, who survived three years in the prison. She was arrested in 1975. Her son had been accused of losing a hoe, a serious offence in Khmer Rouge-controlled Cambodia. Both were tied up and taken to the prison at dusk. “There were a lot of prisoners,” she told me, “too many to count.” Every day more died of starvation or beatings. And every day more arrived. Sao Yeng was shackled while her son was interrogated. “They beat him with sticks more than 100 times,” she told me. “He cried out for help but I couldn’t help him. I didn’t dare answer my son’s cries.” Several months later he died of starvation.

Today, incredibly, Sao Yeng had not even heard of the trial that is being carried out less than three hours from her home. She is not alone. In Cambodia nine in ten people live in the countryside, where communication is limited to radio and word-of-mouth. Despite the overwhelming public support for bringing the Khmer Rouge to account, a report published in January by the University of California found that 85 percent of Cambodians had little or no knowledge of the tribunal itself. And with only five people being held accountable for the deaths of 1.7m, even if someone like Sao Yeng knew of the trial would it make sense that a little-known leader is being tried when known killers live freely nearby? As the head of Duch’s defence team told me, “many people will be disappointed.”

The court itself is housed in a series of large yellow buildings, inside a military compound on the outskirts of Phnom Penh. Just inside the sealed courthouse area stands a statue depicting Cambodian justice, in the form of a man pointing a finger and wielding a club. It is an intimidating place, hardly inviting for those from the provinces who are wary of a military with a history of abuses. (Many of the current military and government figures were once Khmer Rouge.) Even the sign announcing the tribunal is hard to see from the road. That it lies the best part of an hour from the centre of the capital says much about the importance the government puts on bringing the Khmer Rouge to justice.

The same might be said of the fact that of the court’s $143m budget, a mere $50,000 has been earmarked for explaining the trials. Worse, the tribunal faces allegations of political interference and corruption. A recent attempt to widen its net was resisted, in what many believe was an attempt by Cambodian prime minister Hun Sen to protect China, Pol Pot’s former underwriter, from embarrassing revelations.

The prosecuting lawyers hope that the trial will help to strengthen Cambodia’s weak and corrupt legal system. Today the concept of innocent until proven guilty is all but absent, and the police regularly parade cuffed suspects in front of the media with evidence displayed as proof of their guilt. The accused is known as neak thos, literally translated as “guilty person,” a term also used by the Khmer Rouge.

International lawmakers also hope the trial will send a message that there should not be impunity for genocide. But the clarity of that message depends, in part, on whether the court can demonstrate its effectiveness to ordinary people. Eric Stover of the University of California, and a co-author of the report on the tribunal, has his doubts. He studied other courts in the former Yugoslavia and Rwanda, and argues for a change in thinking. “Not enough funding and planning is put into outreach programmes to the population to inform people about the legal process,” he says. He adds that the international experts running such courts often misunderstand the countries themselves.

The danger, then, is that this tribunal will become irrelevant unless it is made accessible. To achieve any semblance of justice, it must not just deliver a handful of convictions, but conduct a process that can be widely understood. Only then will Cambodians feel any sense of ownership, and be able to move on from this bruising episode in their tragic history.

Today M-99 is all but forgotten, mentioned only in passing during Duch’s trial. “There were others, in Siem Reap for example,” Duch told the court. “But I forgot where it was exactly.” It is unlikely that Sao Yeng will ever see justice served for her son.