World Bulletin
Khmer Rouge Court Suffers New Blow
By Barbara Crossette
The tribunal created to try the surviving leaders of the Khmer Rouge regime, which decimated Cambodia in the 1970s, has been hit by a new setback with the resignation of Robert Petit, the United Nations-appointed chief prosecutor and one of the court’s most credible officials. Petit had been blocked by the Cambodian government in his efforts to expand his investigation beyond the five people now facing trial, reopening the debate over whether this war crimes court has been doomed from its inception by meddling from local officials with their own past Khmer Rouge links.
The departure of Petit, a Canadian lawyer and criminal prosecutor in Montreal who previously worked on international war crimes tribunals for Rwanda, Sierra Leone, Kosovo and East Timor, takes place against a background of persistent allegations of endemic corruption on the Cambodian side of the hybrid UN-Cambodian court.
 | | Robert Petit, the UN-appointed chief prosecutor at the Khmer Rouge tribunal, takes his oath in July 2006. Petit recently resigned the post. ECCC Photo. |
This situation has cost the tribunal financial support internationally and allowed defense lawyers for the Khmer Rouge leaders to claim that the trials cannot be deemed fair, one of several ploys to stall proceedings. There have also been repeated appeals for the release of the detained four men and a woman, all of them elderly and not in good health. Though the appeals have been rejected, there is a strong suspicion among Cambodians that the accused are being allowed to die of illness or old age before they can testify publicly about others in the Khmer Rouge regime.
Five senior Khmer Rouge figures are in custody: Nuon Chea, or Brother Number Two to Pol Pot, who died in 1998; Khieu Samphan, the Khmer Rouge head of state and international face of the regime; Ieng Sary, the foreign minister; Ieng Thirith, his wife and former social affairs minister; and Kaing Guek Eav, known as Duch, who commanded the regime’s Tuol Sleng torture center, now a genocide museum. They are housed in a specially built detention center on the grounds of the tribunal, housed in a theater on a Cambodian army base.
Petit, who was appointed in 2006 as co-chief prosecutor, faced many delays and procedural hurdles in his investigations and wanted for some time to add to the list of the accused after extensive gathering of information around the country. But his co-prosecutor, a relative of a high Cambodian official, faithfully hewed to her government’s view that there should be no new cases, whatever new evidence emerged. For Petit, that meant there was little more for him to do. He said in June that he was withdrawing from the job for “personal reasons” to return to Canada.
The Cambodian government restriction on prosecution was completely contrary to the UN’s understanding in 2003 that no one would be outside the reach of the court. Hans Corell, the Swedish judge who was the UN’s top legal official at the time, said that explicitly at a news conference after the signing of a memorandum establishing the tribunal.
Almost everything about the Khmer Rouge tribunal, beginning with its formal name, the Extraordinary Chambers in the Courts of Cambodia, has made it different from other tribunals dealing with genocide, war crimes and crimes against humanity that have been set up in the last two decades under the auspices of the UN.
First, it has been more than 30 years since the radical communist Khmer Rouge regime ruled Cambodia from 1975 until early 1979, leaving about 1.8 million people dead of forced labor, disease, hunger and executions. Families were deliberately scattered and destroyed; and cities were emptied by political levelers who said they would return Cambodia to the “year zero” and rebuild it in their own image. Being identifiably middle class could carry a sentence of death.
Other tribunals such as those for the Balkans or Rwanda have been formed within a few years of events. Geopolitics blocked an accounting for Cambodia because leading nations, most notably China and the United States, were more concerned about the Vietnamese occupation of Cambodia after Hanoi’s troops drove the Khmer Rouge from power over their mounting threats to Vietnam.
It was not until the early 1990s when the UN ran a transitional government in Cambodia following the departure of Vietnamese soldiers that the creation of an international tribunal was pushed by Washington and others, including Prince Norodom Ranariddh, a son of the former king, Norodom Sihanouk. The royalist party of the prince, a French-educated political scientist, won a national election in 1993 only to be elbowed into power-sharing and finally political oblivion by Hun Sen, a former Khmer Rouge area commander put in office by the Vietnamese in the 1980s who refused to relinquish his authority.
In 2003 the UN, finally and reluctantly, signed an agreement establishing the tribunal, which Hun Sen’s government insisted be a hybrid court staffed in equal measure by Cambodian and UN-appointed international officials, and that it be based in Phnom Penh, the Cambodian capital. Other tribunals were located away from the pressures and riptides of local politics: the Rwanda tribunal in Tanzania, the Balkan and Sierra Leone courts in The Hague.
In the shadow of the Hun Sen government, which threatens from time to time to abolish the court, the Khmer Rouge tribunal is also set against a corrupt national justice system, an intimidated legal profession and, lately, the jailing or harassing of journalists for reporting any comment critical of the government. Nongovernmental organizations – among them, strong human rights groups and court monitors -- labor under ever-present threats of suppression.
Only one trial has begun, that of Duch (pronounced Doik), the commandant of Tuol Sleng prison. Other trials are not likely to occur until next year at the earliest. The Duch trial has been having a profound public effect, with extensive testimony of how the interrogation center was run before thousands of starving, sometimes mutilated prisoners were trucked to their deaths in the killing fields outside Phnom Penh. Within the last few weeks, a survivor has told of being beaten for eating insects that fell from overhead lamps. Another spoke of electric shocks and having toenails and fingernails pulled out. One sad old man took the witness stand and said he had waited three decades to beg Duch to tell him what had become of his wife.
But if the tribunal has been used to lead many Cambodians to confront the country’s past and look for ways to find closure, including through new nongovernmental organizations, it has been a disappointment to many international experts and human rights organizations. The Open Society Justice Initiative, part of the Open Society Institute in New York, has done extensive work in Cambodia, monitoring the tribunal and offering legal training in the country. The Justice Initiative’s executive director, James A. Goldston, has sounded alarms.
"The court must demonstrate that it is not a tool of the Cambodian government and ensure a fair and transparent judicial process," Goldston said when the Duch trial began. "The court must show it is relying on law and facts, not politics, in deciding how many suspects will be investigated."
With the resignation of Petit, the tribunal has failed the political test.
Barbara Crossette is the United Nations correspondent for The Nation and former New York Times UN bureau chief.
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