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BANGKOK – After spending nine years and more than $ 300 million suing Cambodian Khmer Rouge leaders responsible for killing 1.7 million of their compatriots, a US-assisted court finally sentenced three people for acts odious of the communist group.
Was it worth it?
This kind of procedure is not cheap. Longer-term courts covering genocide in Rwanda and war crimes in the former Yugoslavia cost as much as $ 2 billion – although both judged many more people than they did. it has not been charged in Cambodia with crimes committed during the 1975-1979 regime. Khmer Rouge fire, Pol Pot.
On Friday, the court sentenced Nuon Chea, 92, and Khieu Samphan, 87, the last remaining Khmer Rouge leaders, genocide, crimes against humanity, and war crimes, and sentenced them to death. life imprisonment. Kaing Guek Eav, nicknamed Duch, is head of the Khmer Rouge prison system and heads the infamous Tuol Sleng torture center in Phnom Penh.
Justice is the main goal. But international tribunals, which try people accused of crimes at the national level, also serve to promote human rights and to establish a historical record, among other objectives.
Even the most optimistic observers acknowledge the weaknesses of the Cambodian court, officially called the Cambodian Special Court, or CETC. The rules established during extensive negotiations between the United Nations and the Cambodian government hindered its work in a way that was not always predictable.
The ECCC was created as a hybrid tribunal, which means that every prosecutor and international judge was matched with a Cambodian counterpart. However, what was a political atmosphere encouraging cooperation when the US agreement was signed in 2003 has deteriorated, the democratic space being narrowed under the Cambodian autocratic prime minister, Hun Sen.
"Hybrid courts force their national and international partners to share the wheel, and they tend to work well only when both drivers want to move in the same direction," said John Ciorciari, a professor at the University of Michigan. and co-author of a book on the court. "When they do, mixed tribunals can help fill the gaps in otherwise fragile national systems, and in case of conflict of interest, efforts to share sovereignty may collapse." "
The main case involved: Hun Sen – himself a former Khmer Rouge commander who had left the group when he was in power – declaring that no additional suspect should be prosecuted, claiming without justification that such acts could cause disturbances.
This did not help that the vague wording of the US agreement on who might be subject to prosecution (senior Khmer Rouge leaders and the main perpetrators of atrocities) was more restrictive than unlimited.
"All courts of this type have political constraints, which is not unique to the ECCC," said David Scheffer, a law professor at Northwestern University and a former US ambassador for war crimes. Among the other points that delayed the proceedings, he mentioned the protection of the rights of the defense of due process and the unusual combination of a civil procedure of investigation on a legal proceeding and d & # 39; 39, a common law model of prosecution.
"One can always assume that there is still much to be done," said Scheffer, also a special expert on UN assistance for the Khmer Rouge trials. "But that was the negotiated reality of this particular court."
Nevertheless, he attributed a high score to the court's performance, claiming that his main contribution had been the national and international justice rendered against some of the personalities of the Pol Pot regime.
"The Cambodian people have called for justice and the ECCC has provided a good deal of it," Scheffer said in an interview by e-mail. "The ECCC has also established a historical record, even if it is not exhaustive, which would never have been discovered otherwise".
Adama Dieng, US Special Advisor for the Prevention of Genocide, also said that Friday's convictions showed that "justice will prevail and that impunity should never be accepted for genocide and other atrocious crimes" .
Political education is an area in which the court has succeeded, said Heather Ryan, who has followed the trials of the Open Society Justice Initiative, an independent international human rights organization.
"The court has been instrumental in helping the world and Cambodians better understand what happened under the Khmer Rouge regime," Ryan said. "This triggered discussions at all levels of Cambodian society on not only the past, but also the concepts of impunity, justice and accountability relevant to the current political situation in Cambodia."
Other observers were less impressed.
Theary Seng, a US-based lawyer, writer, and political analyst based in Phnom Penh, capital of Cambodia, unequivocally criticizes the Hun Sen government, described the court as a "total failure of international justice" because of the established goals of reconciliation, symbolic justice and the fight against impunity.
Seng, whose parents were murdered by the Khmer Rouge, pointed out that the hope that at least some of the Cambodian judges, prosecutors and lawyers the government put in court would become somehow defenders of Judicial fairness and the rule of law contravened: they have all been deeply involved in government abuses and the perversion of the national justice system.
She said that her main concern now was to preserve the integrity of court documents for researchers.
It is likely that the voluminous documentation used by the court will be handed over to the government or a government-controlled institution, she said.
"This means that printed documents could be destroyed selectively and that the electronic version could be subtly modified," she warned. "Future researchers writing the history of Cambodia will not know what."
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Sopheng Cheang, a writer at the Associated Press in Phnom Penh, Cambodia, contributed to this report.
