By: Aly Niehans
Cambodia is a small country nestled between Vietnam and Thailand famous for sprawling temples built by the great ancient Angkor civilization, lush rice fields, and genocide. After years of waging war in rural Cambodia, the Communist rebel group known as the Khmer Rouge ousted the Lon Nol regime from power in 1975 and proceeded to institute the most rapid and total Communist revolution the world has ever seen. Led by the infamous Pol Pot, the Khmer Rouge emptied Phnom Penh and other large cities in Cambodia in a matter of days, driving the urban population to the countryside. In a radical autarkic form of governance, the regime called on the entire population to organize into mass collective farms that would focus on the production of rice, the product the Khmer Rouge thought to be most reflective of Cambodia’s previous greatness.
The next four years would see the decimation of an entire country and an entire population. Mass collectivization was an enormous economic failure and lead to persistent, wide-scale food shortages as well as an estimated one million deaths due to starvation, malnutrition, exhaustion, and lack of proper medical care. Pol Pot and the upper echelons of the Khmer Rouge grew increasingly paranoid, constantly seeking out “enemies of the revolution” to imprison or execute and using coerced confessions to justify increasing the volume and veracity of the search for additional “enemies” to exterminate. In 1979, four years after the Khmer Rouge took control of Cambodia, the Vietnamese army recaptured Phnom Penh, ending a grisly period that claimed the lives of as many as two million Cambodians.
In 2004, more than thirty years after the end of the genocide, the United Nations, and the Cambodian government came to an agreement regarding the establishment of a tribunal to try high-ranking officials within the Khmer Rouge for various crimes against humanity. Officially assuming jurisdiction in 2006, the Extraordinary Chambers in the Courts of Cambodia was touted as the largest tribunal persecuting those responsible for mass crimes against humanity since the Nuremberg trials following World War Two.
However, the international community, as well as many legal experts, question the validity and intentions of the ECC. The ECC is considered a “hybrid” court, meaning that it is based in Cambodia and uses Cambodian staff and justices but also allows for the participation of foreign actors. While citing the weakness of the international legal system as the impetus behind the Cambodian government’s insistence that the court would be largely Cambodia-run, Cambodian officials harbor another, more selfish reason for this stance. Many established politicians within the Cambodian government today had notable positions of influence at the height of the Khmer Rouge regime, including Prime Minister Hun Sen. The battalion that Sen at one point, before he fled to Vietnam to escape the internal purges of the Party, commanded oversaw a brutal persecution of the Muslim Cham minority. Due to the pushback from Cambodian officials, as of today, only three members of the Khmer Rouge have actually stood trial. Indeed, only four cases were originally set to be heard by the ECC and the fate of two are currently undecided.
Case 001 prosecuted Kaing Gaek Eav, more commonly referred to as Comrade Duch, head of the infamous Cambodian prison Tuol Sleng or S-21. More than 12,000 Cambodians lost their lives at S-21 after being tortured into confessing beliefs or actions that ran antithetical to the Party’s ideology, all under the direct supervision of Duch. The Court convicted Duch of crimes against humanity relating to more than 15,000 deaths, and he is currently serving a life sentence.
Case 002 originally had four defendants: Nuon Chea, Pol Pot’s right-hand man and “Brother Number Two”, Khieu Samphan, former head of state, Khmer Rouge Foreign Minister Ieng Sery and his wife Ieng Thirith, another senior figure in the regime. Sery died before the proceedings could begin, and Thirith was deemed unfit to stand trial. Chea and Samphan are charged with crimes against humanity, grave breaches of the Geneva Convention of 1945 and genocide against the Muslim Cham and Vietnamese populations living in Cambodia during the Khmer Rouge. Severed into two trials addressing the various aspects of the charges against the defendants, Case 002 commenced hearings in 2001, and Chea and Samphan were convicted of crimes against humanity and sentenced to life imprisonment in 2014. The Court is still reviewing evidence for the second part of the charges regarding the charges of genocide against eh Cham and Vietnamese.
Cases 003 and 004 aim to charge additional Khmer Rouge members who participated in the violence but have been stalled until further notice.
In theory, hybrid models for international criminal tribunals are a good idea. They allow for states where the violence occurred to heal through the combined processes of domestic reconciliation for egregious violations of human rights as well as support and guidance from more impartial international officials and actors. Hybrid models grant autonomy when necessary, but retain the right to intercede if and when the proceedings get complicated by politics or extraneous factors. This is especially important for countries within the Global South, who already feel as though Western countries act as overinvested helicopter parents to their domestic affairs.
Nevertheless, the hybrid model should most certainly not be applied in situations like Cambodia. While it is impossible to enact justice for the two million dead and the millions more who suffered because of the destructive policies and vengeful, vicious Khmer Rouge, the United Nations needs to do better than a tribunal poisoned by a political environment sympathetic to the very perpetrators of the violence. The international community seems content to allow the proceedings in Cambodia to be largely symbolic, excusing the small volume of cases and the failure to prosecute officials within the government for crimes that, elsewhere, would certainly be included in a trial of this nature. This essentially reduces the ECC to nothing more than a few intermittent punishments handed out to the incredibly obvious perpetrators of violence while turning a blind eye to the offenses committed by hundreds of mid-level offenders who now walk free under the protection of their government.
Moving forward in an international environment that seems to have a heightened focus on human rights and with the crisis in Myanmar escalating, it is imperative that criminal tribunals are organized in accordance to the political situation of the offending country. This means that countries still under the influence of perpetrators and their allies should not house the tribunals meant to punish them. Additionally, prosecuting only the top level officials does little to atone for the sins of the mid-level perpetrators that participated in the violence, killing their neighbors or strangers and forever scarring lives of innocent civilians. It is worthless to have tribunals that cannot move past symbolism to enact real change and effect real consequences on those that committed genocide.