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Asia: Cambodia's Search
for Justice in the ECCC


The closing statements in the first trial of the Extraordinary Chambers of the Courts of Cambodia begin this week. The outcome of Kaing Guek Eav's case is as much a search for justice for Khmer Rouge survivors as it is for international law.

Craig Etcheson of the Co-Prosecution in the ECCC.
© Foreign Interest, 2009

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Three Years, Eight Months and Twenty Days

By Sherry Harbert, Foreign Interest


If one were to place a time on hell, three years, eight months and twenty days would mark the time for millions of Cambodians during the reign of the Khmer Rouge during the late 1970s in the then-Democratic Kampuchea. It is estimated that two million* people died during that time, many from torture and starvation. The aftermath of the genocide continues to affect the lives of millions of survivors in the Kingdom of Cambodia and around the world.


While death and suffering were immediate during the reign of the Khmer Rouge, justice took a far longer time to reach the survivors. After 34 years it is now taking place inside the Extraordinary Chambers of the Court of Cambodia (ECCC). Beginning November 23, 2009, the ECCC will hear the closing statements in Case 001, the trial of Kaing Guek Eav. Kaing, known by his alias Duch, is the first defendant to stand trial within the ECCC for crimes against humanity during the regime’s brutal reign.


Duch was head of the infamous Tuol Sleng Prison (Office S-21) where more than 17,000** men, women and children were killed. Duch and his subordinates kept meticulous records of the tortured confessions. He was a math teacher before the Khmer Rouge took over, an ironic circumstance that sentenced thousands of his fellow citizens to death, as educated people were deemed enemies of the state. Duch’s expertise in numbers proved to be a valuable asset to the Khmer Rouge. According to ECCC testimony in Duch’s trial, S-21 was a model of efficiency for confessions.


Extracting confessions by torture was seen as an efficient method for justifying the CPK’s arrests. Many of the documented confessions were routinely sent to the top levels of the Communist Party of Kampuchea (CPK). Khmer Rouge leaders used the detailed confessions to justify their ongoing persecution of anyone deemed an enemy of the state.


Duch included his personal analysis of the information extracted from the individuals before the reports were sent onto higher officials in the CPK. Duch first sent the reports to Son Sen, an alternate member of the Standing Committee of the CPK who initiated the prison system at S-21. Son Sen was head of the CPK’s defense and security forces. He, too, was a teacher before the Khmer Rouge took power.


The Khmer Rouge deemed any educated person an unworthy representation of the puritan standards they held for their utopian ideal for a peasant workers society. In a statement of “agreed facts” before the ECCC on May 18, 2009, the court listened to a statement attributed to Duch in one of his notebooks at S-21 which highlighted the class struggle taken on by the Khmer Rouge. “Duch noted that the work of S-21 is a task of class struggle; that is, aimed at smashing the oppressor class, digging out their trunk and roots to defend the Party, defend the proletariat class, defend Democratic Kampuchea and defend the line of independence and mastery.” Those who avoided being caught in its growing snare, found more ways to point to others. Thus the Khmer Rouge’s program grew more cruel and more far-reaching with each passing day. Duch and Son Sen added a diabolical element to the program.


It did not matter that Son Sen and his immediate subordinate Duch fit the Party’s definition of oppressor. They became the perfect oppressor for the Party. Duch’s reports would also be sent to Noun Chea, the CPK’s deputy secretary who will soon stand before the ECCC for his role in the genocide.


Duch’s reports provided a detailed network of relationships of each individual interrogated within the walls of S-21. The names read of family members, school friends and co-workers. The torture conducted on the individuals linked their private and professional lives into a network that the Khmer Rouge used to target new enemies. Each forced confession provided the Khmer Rouge with more and more names on which to assign the crime of enemy of the state. During court testimony, Duch admitted that he knew most of the information in the reports was not considered credible, but it didn’t matter to him or the regime which focused on purging all enemies within its midst. Even a few in the highest levels of the CPK found themselves on the enemy’s list. Son Sen would be assassinated years after by orders from Pol Pot, the supreme leader of the Khmer Rouge, when his utopian empire finally imploded during the 1990s.


After the Khmer Rouge lost power in 1979, few ever faced criminal charges. Even when Ieng Sary and Pol Pot were found guilty of genocide during a 1979 People’s Revolutionary Tribunal, neither bothered to show up in court and neither paid a day of punishment. In 1996, King Norodom Sihanouk of the Kingdom of Cambodia pardoned Ieng Sary for the crime of genocide.


Looking for Justice


Only five individuals, including Duch, have been formally indicted by the ECCC. The four others, whose collective trial is set to begin soon, include Ieng Sary, Ieng Thirith, Nuon Chea and Khieu Samphan. Each defendant represents the top echelon of a systematic genocide within their control during the Khmer Rouge regime. It was a regime that began in 1960, long before they took power in 1975. The Khmer Rouge evolved into the CPK during the Vietnam War. When the final U.S. airlift left Saigon in April, 1975, the Khmer Rouge were well positioned to take over. The Cambodian people initially reacted to the end of the Vietnam War with jubilation. They welcomed the Khmer Rouge troupes as they rode into Phnom Penh with flags and parades. But it was only days before the next level of horrors transformed their world.


The U.S. bombing campaigns during the Vietnam War were not well known outside the country, so it was easy for the Khmer Rouge to use the air raids as a mechanism to round up their vulnerable citizens. They realized the secrecy utilized by the U.S. would work perfectly to carry out their plans. Anyone who dared question their tactics was killed. Some managed to escape into neighboring Thailand during that first year and they soon would tell of the atrocities happening inside their homeland.


Amnesty International appealed to Khieu Samphan, then the President of Democratic Kampuchea, in May, 1976, regarding reports of widespread executions of opposition leaders and others during the first year of the Khmer Rouge’s reign. (Noun Chea was President of the People’s Representative Party during the regime’s reign.) The international human rights organization heard from an increasing number of refugees in  Thailand about the Khmer Rouge, along with reports from Phnom Penh radio about the dire situation inside the country. Amnesty International never received a response from the government. Thailand sent many of the refugees back into Democratic Kampuchea and to certain death by the Khmer Rouge.


With more than one-fifth of the population killed under the Khmer Rouge, the years following the regime did little to heal the affects of the genocide. The U.S. and other nations walked away from the region after failing to meet their mission during the Vietnam War. The population of the country, which was then known as the People’s Republic of Kampuchea, struggled to make new lives for themselves in the midst of chaos. The country would be renamed in 1989 as Cambodia, then again in 1993 as the Kingdom of Cambodia.


No matter the number of name changes for the nation, the ongoing affects of the Khmer Rouge genocide continued to plague its survivors. With an international push, the Cambodian government approached the UN in 1997 to establish a judicial process to address the crimes committed under the Khmer Rouge. The outcome was the creation and implementation of the ECCC which was mandated to try those charged with crimes against humanity under the Khmer Rouge’s reign. It took 10 years to bring the court into operation.


The ECCC is extraordinary in its concept and design. It is considered a hybrid court that combines national and international law. Located just outside Phnom Penh, the ECCC contains offices of the courts, a prison, courtrooms and other facilities necessary for its operation. It operates in three languages, Khmer (the cultural language of Cambodians), English and French. Its technology is impressive, offering streaming feeds of the hearings and a comprehensive website.


Like other judiciary bodies, the ECCC contains both a prosecution and defense branch. Unlike other courts, the ECCC also includes a Victims Unit which facilitates victims participation in its procedures. The ECCC applies the legal definition of victim to anyone who directly suffered from physical, psychological or material harm by the Khmer Rouge regime between April, 1975, and January, 1979.


The concept and the reality of the ECCC has not been without controversy. Prime Minister Hun Sen and his government have been accused of meddling in the court throughout its inception and implementation. Hun Sen warned last month that national instability would erupt if more suspects were charged by the court. Most critics point to politics as a reason for numerous delays and pressure to end investigations of additional suspects. Some of the additional suspects are rumored to be important members of Hun Sen’s current government.


Craig Etcheson, lead investigator with the Office of Co-Prosecution at the ECCC, described the legal ramifications of the court as part legal and part political. “This is a political trial,” he told an audience at the Khmer Rouge Tribunal Forum in Portland, Oregon, in August. “We are prosecuting a political regime.” Etcheson, the first foreign expert to testify at Duch’s trial in May is recognized as one of the top experts of the Khmer Rouge. He cautioned that prosecuting genocide in the context of the regime is very complex. Every facet of the crime must be thoroughly documented and proved in court.


Etcheson joined the ECCC in 2007. His expertise and research provided the prosecution and court with an extensive legal background in the structure, history and acts of the Khmer Rouge. There was a contentious battle over his testimony as a witness, while he continued serving with the co-prosecution. But Etcheson’s detailed testimony over six days from researching over 50,000 documents became a platform for the prosecution and defense in the case of Duch. He would be the first to testify after Duch’s initial testimony and be the last to testify before Duch’s subsequent stand before the court.


Even the defense counsel for Duch, Francois Roux of France, respected Etcheson’s testimony, albeit not without hours of wrangling over submission of documents (148), file numbers and other details. Roux established his international reputation for defending individuals accused of heinous crimes, including Zacarias Moussaoui who was convicted in 2006 of being part of the September 11, 2001, attacks in the U.S., and Ignace Bagilishema who was accused of participating in the Rwandan Genocide in 1994. Roux won Bagilishema an acquittal in the International Criminal Tribunal of Rwanda (ICTR).


Etcheson earned his reputation by dedicating over 30 years of his life documenting the realities of the Khmer Rouge regime and genocide. He was the principle founder of the Documentation Center of Cambodia (DCC) in Phnom Penh, which serves as an active clearinghouse for official and personal history during and after the regime. Etcheson has written numerous books on the subject including “After the Killing Fields: Lessons form the Cambodian Genocide.” He has taught at Yale, George Washington and John Hopkins universities.


Crimes Against Humanity


Etcheson brings a unique sense of responsibility to the ECCC. He understands that genocide is not a single event, but a multitude of singular events, acts and individuals. “We can’t just say everyone knows what happened. We must address every element,” he said. “And it must be done with the full respect of the rights of the accused or we are no better than the Khmer Rouge.”


Etcheson described the first day of Duch’s trial as a precursor to the impact that the ECCC has on Cambodia and its people. “The courtroom was packed. It was overflowing. During the morning break, the sky opened up and an intense rain erupted. The foreigners thought it was odd, but the Cambodians knew it was the tears of Buddha. He was weeping for all those who were lost.”


His insight into the psyche of the Cambodian people also offers him a sense of humanity for those accused of committed horrific crimes. “Duch is not a monster from hell,” Etcheson said. “He is a human being. That’s why he is treated with dignity and protected.”


It is a difficult lesson for survivors who witnessed Duch’s cruelty and power. The suffering he and others in the Khmer Rouge caused cannot be easily erased over time. Many survivors continue to suffer from its affects today. Etcheson stood in front of a room full of survivors to admit the court cannot address justice for them individually. “I don’t know what true justice is when you speak about two million deaths on the scale of genocide.” He said justice can’t happen with crimes of this scale. “But what we can do is symbolic justice. It establishes a principle of personal consequences on an international level.”


The concept of international justice is a recent event. Courts like the ECCC and the International Criminal Court (ICC) are continuing to evolve. Etcheson was amazed at the level of work it took just to get the ECCC built. It began as a process to build a new justice system to address genocide inside Cambodia. Even the structure of the facility which houses the court was designed without previous models. Etcheson told of the need to garner the approval of the International Red Cross for the detention center to guarantee the human rights of those incarcerated inside. “Some people think its a Hilton Hotel, but I’m here to say its not a nice place to be.” But it is responsive to the basic needs of those housed inside. When one of the four defendants complained that the toilets were too low, the court modified the components.


It is a dilemma for any society to balance the treatment of criminals with the suffering of victims. For Etcheson, the balance is what separates civil society from criminals and the Khmer Rouge. “How we treat our prisoners, even those who committed the most heinous crimes, reflects who we are.”


Obstacles to Justice


Corruption charges have plagued the ECCC for years. U.S. Senator Mitch McConnell (R-KY) testified in a 2003 foreign appropriations committee hearing that “continuing assassinations of opposition activists, monks and judges underscores the lawlessness and impunity that has become a hallmark of the ruling Cambodian People’s Party.” The timing was in direct response to the first wave of international funding requests for the court. Though many in the international community favored funding a Cambodian court to address the genocide, including the U.S., many of those nations voiced reservations about the transparency of its operation in lieu of the nation’s ongoing corruption.


Last week, Transparency International listed its latest report on corruption with Cambodia again earning the designation of one of the most corrupt nations in the world. The designation came just weeks after the U.S. opened diplomatic channels to increase trade between the two countries.


Such obstacles have yet to deter the extraordinary efforts of the people that work with the ECCC to establish a judicial process that extends beyond the nation of Cambodia and its history. Yet those efforts have been painstakingly slow and difficult.


Etcheson does not regret the time it took to bring those indicted to trial. Even when more and more leaders of the Khmer Rouge die before being charged with crimes, the impact of the law stands out for Etcheson. “What if someone dies, we still cannot do it another way. Plenty Khmer Rouge have already died. We can hope they find justice in the next life.”


Khmer Rouge leader Saloth Sar, known to the world as Pol Pot, died in 1998, one year after the UN was first approached about the idea to create a court of justice for the survivors of his Khmer Rouge. For Etcheson and every survivor, the next life is the only court Pol Pot has faced. Those still living continue to seek justice as much as a means to address the past and as it is a way of healing for the future.


Notes: *The number of deaths attributed to the genocide in Cambodia varies from 1.7 million to 3.3 million. (Cambodian Ambassador to the UN Ouch Borith testified in 2003 that the number was “more than two million; the Ministry of Education in Cambodia published figures of 3.3 million). **The number of individuals who entered Tuol Sleng (S-21) varies from over 12,000 to 25,000 (Documentation Center of Cambodia refers to numerous sources based on submitted documentation; Tuol Sleng Genocide Museum refers to 17,000 as the number of individuals who entered its doors.)


November 23 , 2009

© 2009, Foreign Interest

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