Criminal Court for Cambodia
Establishment of Extraordinary Chambers Responsible for the Prosecution of Crimes Committed by the Khmer Rouge in Cambodia
Close to three decades after Pol Pot and his Khmer Rouge followers were driven out of Phnom Penh by the Vietnamese army, the possibility to prosecute the tyrants of the Democratic Kampuchea era seems within reach.
In June 1997, the Cambodian government requested help from the UN in prosecuting former leaders of the Khmer Rouge for crimes committed between 1975 and 1979. Initially, the UN wished to establish a third ad hoc International Criminal Tribunal such as for the former Yugoslavia or for Rwanda. However, the Cambodian government refused to countenance the establishment of such a mechanism, which led the parties to draft a Memorandum of Understanding (MOU) concerning “significant international co-operation” in trials before Extraordinary Chambers of the Cambodian Courts. In August 2001, Cambodia finally promulgated a law which was not entirely consistent with the terms of the MOU, for which reason the Secretary-General decided to pull the UN out of the negotiations in February 2002. However, the UN General Assembly requested him to pursue negotiations. This resulted in an amended bi-lateral agreement on 6 June 2003, following the adoption by the General Assembly of the United Nations on 13 May 2003, of a resolution, approving a proposed agreement between the UN and Cambodia on the prosecution of crimes committed between 1975 and 1979 in Cambodia (A/RES/57/228 B). Nevertheless, the agreement signed on 6 June 2003 could only come into force in April 2005, when a donors conference received promises covering the quasi-totality of the necessary international contributions. The 2001 Law was then amended on 27 October 2004 to bring it into conformity with the International Agreement.
After gaining independence from France in 1953, Cambodia was not able to avoid the chaos of the Vietnam war. The civil war there was waged under the unwritten code of the Cold War: on one side, the government of Lon Nol was backed by the United States, and on the other side, Pol Pots’s Khmer Rouge were supported by China. Finally, in the middle, came communist Vietnamese fighters who sought refuge in the neutral territory that was Cambodia at that time. Secret US bombings, which allegedly caused more than 150 000 casualties, probably paved the way for Pol Pot and his troops to take up power.
On 17 April 1975, Pol Pot’s troops marched into Phnom Penh. Their proclamation of “Year Zero” opened up an era of terror and horror.
Ultra-Maoist Khmers tried to set up a classless agrarian society, which was to bring the country back to the Stone Age. In one single week, the 2,5 millions citizens from Phnom Penh were forced out to the countryside. Citizens, teachers, lawyers, monks or physicians were now all “new people”. The Khmers mercilessly held to the maxim: “Keeping you is no benefit, losing you is no loss.” The mere fact of appearing to be intellectual by wearing spectacles was sufficient reason to be condemned to death. An unknown number of persons were thrown into slavery, arbitrarily executed, or died of starvation, disease or exhaustion in labour camps. Children were taken from their families. In the space of four years, the Khmer Rouge genocide annihilated around 2 millions people in the “killing fields”, or about a quarter of Cambodia’s population at that time.
The 1979 Vietnamese invasion brought the terror to an end. Pol Pot and his acolytes fled to seek refuge in the jungle where they were cynically backed in their fight against the Vietnamese communist occupation by China and the West. After ten years of occupation, and the establishment of its regime, the Vietnamese army left the country. However the exiled Khmer Rouge government still continued to represent Cambodia at the United Nations until 1992 !
Twenty years after the genocide, the United Nations finally passed a resolution in favour of prosecuting the main leaders of the slaughter, and proposed its help to the Cambodian government (A/RES/52/135). A report by experts recommending the creation of an international court and the setting up of a truth commission was rejected by Cambodia, which argued that it was an unacceptable interference in its sovereignty.
In March 2003, after four years of tough negotiations, the United Nations and Cambodia reached an agreement on the creation of “Extraordinary Chambers” within the existing court structure. The composition of the organs of investigation, prosecution and judgement provide for the involvement of both Cambodians and foreign officials (A/RES/57/228 B).
A very sluggish start to this hybrid international tribunal meant that a certain number of Khmers Rouges, having died in the interim, were not brought to judgement. These included Pol Pot, Son Sen (Defence Minister and responsible for the Santebal, the Political Police), Yun Yat (Minister), Thiounn Thioeunn (Minister), Ta Mok (Chief of Military Command) and his deputy Ke Pauk.
Nevertheless, other high ranking personalities responsible for the atrocities committed under the regime are still alive, in particular Khieu Samphan (Chief of State), Nuon Chea (the most powerful figure after Pol Pot), Iang Sary (Vice Prime Minister), Khieu Thirith (wife of Iang Sary, Minister and Member of the Central Committee), Thiounn Mumm (Minister) and Keat Chhon (Minister). The latter is Economics and Finance Minister in the current government.
The ratification of the UN Agreement by the Cambodian parliament, the availability of sufficient financial resources as well as the rapid recruitment of qualified personnel should, barring any new obstacles, lead to the prosecution of these tyrants before they also die one day.
The start of criminal investigations on 3 July 2006 represents the latest development in the laborious establishment of this mechanism of international criminal justice. The proceedings are now open in Cambodia. The files have been divided into 4 cases.
In a landmark decision in July, the Extraordinary Chambers in the Courts of Cambodia (ECCC) convicted Kaing Guek Eav (known as Duch) for crimes against humanity and grave breaches of the Geneva Conventions for his role in mass executions, torture and other crimes during the Khmer Rouge period. Duch was the commander of security prison S-21, where at least 14,000 people were tortured and killed. He was sentenced to 35 years' imprisonment, reduced by 16 years for time served and illegal detention. Both the prosecution and defence appealed against the sentence.
In 2012, the Supreme Court Chamber, in appeal, sentenced him to life imprisonment. In September, Ieng Sary, Ieng Thirith, Khieu Samphan and Nuon Chea were charged with genocide of the Cham and Vietnamese, crimes against humanity, war crimes, and other crimes. Prime Minister Hun Sen undermined progress on an additional two cases covering five individuals by warning that he would not allow further prosecutions.
Lately, Swiss judge Laurent Kasper-Ansermet decided to resign from his mandate as the consequence of the cambodian interferences in judicial matters, in particular whether or not further prosecution should proceed regarding cases number 3 and 4. His substitute's name hasn't been announced yet. In October 2011, his predecessor, judge Siegfried Blunk also quit the tribunal.