Trial and error in Cambodia

Southeast Asia
Feb 19, 2009

Trial and error in Cambodia
By Craig Guthrie

PHNOM PENH - Kaing Guek Eav, once the chief of Cambodia's Toul Sleng detention and torture center, was the first to face trial at the United Nations-sponsored Khmer Rouge Tribunal (KRT). With his headphones, glasses and computer screen in front of him, he seemed at Tuesday's procedural hearing more a graying professor than the torturer-in-chief of the Khmer Rouge's murderous regime.

Concerns are rising that this cadre will be the solitary figure to take the fall for the killing spree unleashed by the radical Maoist regime, which from 1975-79 presided over the deaths of an estimated 1.7 million Cambodians. Better known as Duch, Kaing Guek Eav is the only defendant among the five accused to have
confessed to crimes against humanity, war crimes, torture and premeditated murder.

A swift end to the trial would presumably suit Prime Minister Hun Sen, who brought several former Khmer Rouge cadres into his government, and certain influential international donors, including China, who throughout the 1980s provided material support to the murderous regime.

With the thousands of documents meticulously recording the atrocities committed under Duch at Toul Sleng, which he left behind after fleeing Vietnamese forces that entered the capital in 1979, his conviction is expected to be less legally complicated than his higher-ranking fellow Khmer Rouge detainees.

The regime's surviving leaders now held at the KRT's detention facility - including former head of state Khieu Samphan, chief ideologue Noun Chea, former foreign minister Ieng Sary, and former social affairs minister Ieng Thirith - are all over 70 years old. "If the hearings are limited to Duch ... from being a charade, the tribunal will have descended into farce," Philip Short, the author of Pol Pot: Anatomy of a Nightmare told Asia Times Online.

Although more than 1,000 spectators, including journalists and film crews from around the world, have descended onto the court's buildings on the outskirts of Phnom Penh, the trial is still in the procedural stage and proper hearings are not scheduled to begin until March.

Duch is no doubt a significant Khmer Rouge figure, but the casualties he oversaw at the Toul Sleng detention center, also known as S-21, account for less than 1% of the total deaths perpetuated by the regime. Duch was not a policymaker, but more a ruthless cadre who carried out orders from above - albeit with enthusiasm, according to Short. He once wrote on a prisoner list: "Kill them all, 30 May 1978." On another, containing the names of 29 prisoners, he wrote "Interrogate four persons, kill the rest."

The KRT investigation team's closing document on Duch, which was released in August 2008, revealed that 160 children were once executed in a single day at S-21 and that prisoners were subjected to medical experiments such as live autopsies and blood letting. One alleged method of killing, according to the closing order, involved dropping children from the roof of the detention center in order to break their necks.

Duch is believed to have fled to the Khmer Rouge's remaining strongholds on the Thai border after 1979, where top leaders were apparently angered at his failure to destroy the evidence left behind at S-21. Despite his public notoriety, questions about Duch's whereabouts were not resolved until British journalist Nic Dunlop discovered him working as a Christian aid worker in 1999.

It has been a tortuous, three-decade long road for the KRT to reach even these initial stages. Contradictions and arguments on the trial between the UN, the Cambodian government and outside legal observers have plagued the trial since its inception. Some have already characterized the proceedings as farce, while others contend any sense of justice would go a long way towards healing Cambodian society.

Some hope guilty verdicts will bring an end to Cambodia's notorious culture of impunity. Several international human rights organizations have over the last decade accused high-level Cambodian officials of involvement in everything from the child-sex and illegal logging trades to land-grabbing and political murders. The allegations have universally gone uninvestigated.

"The culture of impunity we see throughout Cambodia today is rooted in the irrefutable belief among its people that no crime is so great that it must be punished, and that whatever any Cambodian does is fine because it cannot possibly be worse than what the Khmer Rouge did," said Joseph Mussomeli, former US ambassador to Cambodia and a vocal supporter of the tribunal, in 2006.

Not all agree, however. Brad Adams, Asia director of Human Rights Watch, a US-based rights lobby, said that the trial has no chance of ending impunity in Cambodia. "After the trial there will still be too many killers on the loose and too many unanswered questions about what happened, who did it, and why ... There is no way for this limited number of trials to heal society," Adams said.

The murky nature of the Cambodian judicial system and its known links to Hun Sen has already left many questions hanging over the trial's credibility. Duch himself spent more than nine years detained without charge in a military prison before being transferred to the tribunal's detention facilities. Francois Roux, Duch's defense lawyer, has called this period of pre-trial detention "unacceptable".

Earlier government negotiations with the UN over the terms and structure of the trial ended with the world body finally agreeing that the court would be "hybrid", with decisions taken by both international and Cambodian judges. The bench's mixed nature has raised fears of both possible government interference and corruption in the legal process.

Given the charges leveled by the Open Society Justice Initiative, a non-governmental organization, that some Cambodian KRT staff were asked by top officials to pay part of their salaries to ensure their positions, these fears have to some been borne out.

Concerns also remain surrounding the capabilities and political independence of the Cambodian judges. Those were the arguments made by the US and European Union for withholding funding from the tribunal. According to local press reports, earlier this month the German government announced it was freezing funding until "corruption allegations are cleared up".

Complicit arbiter
Less critical focus has been given to the UN's credibility to oversee the trial. The UN gave the Khmer Rouge a seat on its General Assembly for 15 years after the regime's fall to Vietnamese forces in 1979. In that time, it also supported a Western-led trade embargo which stopped vital aid from moving into Cambodia and dealt a serious blow to the nation's economic development.

Observers have also questioned the US's role. Under former US president Ronald Reagan, financial and humanitarian assistance from the US to the Khmer Rouge grew. According to a 1998 edition of the US magazine Covert Action Quarterly, aid from the US’s Central Intelligence Agency and the government reached US$85 million by the end of the 1980s.

With the US still irked by its loss to communist forces in Vietnam, and China worried about Vietnamese expansionism in Southeast Asia, the two sides formed a bloc against Hanoi and the regime it installed in Phnom Penh. Khmer Rouge defectors told Australian journalist John Pilger that in the 1980s they were trained in Malaysia by British and American military advisors.

In the same Pilger report, an anonymous United Kingdom Ministry of Defense official told the Daily Telegraph at the time that Cambodia was "a classic Reagan and [former UK prime minister Margaret] Thatcher operation". Britain's Foreign Office's official response at the time was: "Britain does not give military aid in any form to the Cambodian factions".

Thatcher, wrote to the opposition leader Neil Kinnock: "I confirm that there is no British government involvement of any kind in training, equipping or cooperating with Khmer Rouge forces or those allied to them." Then on June 25, 1991, after two years of denials, the UK government admitted that the Special Air Service (SAS) had secretly trained the "resistance" since 1983. A report written by Rae McGrath, who later went on to share the Nobel Peace Prize for a campaign against landmines, filled in the details: the SAS had taught "the use of improvised explosive devices, booby traps and the manufacture and use of time-delay devices".

With some 15% of the population now affected by mines, according to 2007 Asia Development Bank figures, Cambodia remains one the most disabled nations in the world. Today, a visit to any of Cambodia's tourist areas quickly reveals the sheer magnitude of the effect that landmines, laid with Western and Chinese assistance, have had since the Khmer Rouge's fall.

China, as well as Singapore, gave covert military support to Pol Pot's jungle-based anti-government movement in the form of anti-tank weapons, mines and rifles in the years that followed the fall of the Khmer Rouge government in Phnom Penh. Meanwhile, the US, UK and neighboring Southeast Asian nations openly helped the insurgents diplomatically and with food aid.

Singapore's former prime minister Lee Kuan Yew said in his memoirs that as much as US$1.3 billion was spent by China, the US, Singapore, Malaysia and Thailand in support of the Khmer Rouge and other Cambodian rebels fighting the Vietnamese and allied government forces. American, Singaporean, Malaysian and Thai officials held regular meetings in Bangkok to coordinate the Cambodian aid program, Lee wrote in From Third World to First: The Singapore Story 1965-2000.

He said the Singapore representative "estimated that the United States dispensed a total of about $150 million in covert and overt aid to the non-communist groups, Singapore $55 million, Malaysia $10 million and Thailand a few million in training, ammunition, food and operational funds".

China has in the past lobbied against the KRT and even threatened in 1999 to use its veto power at the UN Security Council to block its establishment. China is now a large aid donor to Cambodia, with pledges of $1 billion in loans in 2008 for vast infrastructure projects, and has cultivated close ties to the Hun Sen government.

The absence of substantial US funding - it gave a meager $1.8 million 2008 - is also notable considering KRT representatives say they have received $100 million and need $143 million in total to run the tribunal. Some charge that the US's carpet bombing of Cambodia during the Vietnam War era effectively created the Khmer Rouge by giving the once-marginal movement credibility among the shell-shocked population.

Researchers Ben Kiernan and Owen Taylor found in 2005 that the bombing of rural Cambodia was five times the reported level, or more than the total allied bombing in World War II. They concluded that the bombing "drove an enraged populace into the arms of an insurgency that had relatively little support until the bombing began".

"The question of whether the US should be facing charges of creating the Khmer Rouge depends on whether we accept the standards of Nuremberg, when US Chief Prosecutor Justice Robert Jackson said 'we are handing the defendants a poisoned chalice'," foreign policy observer Noam Chomsky told Asia Times Online by e-mail. "If we sip from it, we must pay the same price; otherwise the tribunal is a farce. Independent of consequences, the bombing of Cambodia surely ranks with the crimes of many of those accused at Nuremberg."

Although only the start of the legal wrangling to come, the morning of Tuesday's hearing was spent arguing over the right of a Toul Sleng victim's husband to represent his wife after her death. Some might say it is sad and symbolic that the tribunal's first task should be to decide the fate of yet another Cambodian for whom justice has arrived too late.

Craig Guthrie is a correspondent for Asia Times Online based in Thailand. He has covered Cambodian affairs since 2004.

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