First Khmer Rouge trial begins in Cambodia

"Duch," the former commander of a prison where thousands were killed, is charged with crimes against humanity.

By Huma Yusuf

posted February 17, 2009 at 9:50 am EST

The long-anticipated trial of former Khmer Rouge leader Kaing Guek Eav began in a Phnom Penh court on Tuesday. The trial, which is backed by the United Nations, is taking place 30 years after the fall of the Khmer Rouge regime, 13 years after the tribunal was initiated, and almost three years after the court was inaugurated. Still, observers fear that Cambodians will not get the satisfaction that justice has been delivered, as court proceedings have been plagued by corruption allegations and fears of political interference.

According to the London-based daily The Guardian, Mr. Eav, better known as Duch, is charged with crimes against humanity by the Extraordinary Chambers of the Courts of Cambodia (ECCC).

Duch is accused of war crimes and crimes against humanity for his role in the deaths of at least 12,380 prisoners at Phnom Penh's notorious Tuol Sleng torture centre. The opening days of the trial, however, will be taken up with procedural issues....

Duch is the first of five defendants to appear before the long-delayed tribunal. Although he has made no formal confession, he has, unlike the other defendants, "admitted or acknowledged" that many of the crimes occurred at his prison, according to the indictment from court judges. He has also asked for forgiveness from his victims.

Many Cambodians complain that the "Killing Fields" tribunal is long overdue. According to Reuters, a draft agreement between the Cambodian government and the UN about the format for the trial was first floated in March 2003.

The English-language Cambodian daily The Phnom Penh Post reports that there is still a chance Duch's defense lawyers will present a compelling argument.

"From a strictly legal perspective, the key thing to watch will be whether submissions or challenges get flagged early and any issues regarding civil party participation get ironed out as soon as possible," Michelle Staggs Kelsall, deputy director of the Asian International Justice Initiative at the East-West Centre, a court monitor, told the Post Monday....

She said other courts have raised the issue of prosecutorial discretion, meaning that the manner in which the mandate of the court is being applied has been called into question during opening proceedings.

"Arguably, Duch is not one of those most responsible if you consider the crimes that occurred under the Khmer Rouge as a whole. The defence may raise this," she said.

She added that defence attorneys may argue that the statute of limitations for his domestic offences might have already expired.

Meanwhile, legal representatives for civil parties at the tribunal are calling for new investigations to be launched against Duch in response to allegations that he organized forced marriages, which are also considered a crime against humanity, reports The Phnom Penh Post.

In a press statement released over the weekend, lawyers said that there was sufficient evidence to link the prison chief ... to organising "at least one mass wedding", and that it was thus necessary for the court to conduct "immediate and serious supplementary investigation"....

Although the ... trial begins Tuesday, lawyers say additional investigations would not delay proceedings. "Investigations can be conducted besides the ongoing trial. This is a normal procedure," international co-lawyer for civil parties Silke Studzinsky told the Post.

She added that despite being a crime against humanity, forced marriages had not yet been properly investigated.

"Sexual violence, such as forced marriage, was never seriously investigated by this court. This approach is common in all courts - to neglect these crimes is typical," she said, adding that there were many reasons for this.

Duch's trial is expected to uncover information that would help the UN tribunal prosecute other former Khmer Rouge leaders, reports the BBC.

A born-again Christian, [Duch] is said to have co-operated with investigating judges - and is expected to reveal important information about the decisions made by the organisation's leadership.

His information could help in the trials set for later this year of four other defendants, analysts say.

They include the surviving top leaders Nuon Chea, Ieng Sary and Khieu Samphan, who are all elderly and in poor health. All four have denied any knowledge of the atrocities that took place under their rule.

If preparations for their trials get bogged down, as seems likely, Duch may be the only man ever held to account for the Khmer Rouge atrocities, our correspondent adds.

Although Duch's trial is being celebrated as an attempt to serve justice in Cambodia, human rights groups say the tribunal will be a test of judicial independence, reports The Times of London. Indeed, the tribunal has been plagued with allegations of corruption and political interference as Cambodian courts are controlled by Prime Minister Hun Sen, who, like other government officials, is a former Khmer Rouge member.

A dispute within the ECCC over whether charges should be brought against more former Khmer Rouge leaders has left the tribunal's credibility in doubt, human rights groups say.

The dispute centres on efforts by the Canadian co-prosecutor, Robert Petit, to charge up to six more former members of the regime, a move opposed by his counterpart Chea Leang, the Cambodian co-prosecutor.

Mr Chea cited the lack of resources available to the ECCC and the "need for national reconciliation" as reasons for rejecting the additional charges….

"This casts doubt on the very credibility of the tribunal," Lao Mong Hey, of the Asian Human Rights Commission, said. "If someone is suspected of committing a crime, why not try them?"

The tribunal is comprised of a majority of Cambodian judges sitting alongside international judges, with Cambodian and international co-prosecutors. The UN initially opposed the arrangement because of widespread concerns over the notoriously corrupt Cambodian judiciary, and its lack of independence.

Still, an editorial in The Phnom Penh Post argues that high hopes are riding on the outcome of the trial.

So what does this trial mean for the Cambodian people?

It would be nice if it meant the beginning of the end of impunity for those who break the law. It would be great if it led to reforms of a judicial system that is perceived as biased towards those with power. It would be helpful if it added to the process of national reconciliation. It would be a blessing if it helped bring closure on the darkest chapter in recent Cambodian history.

Duch's trial is also providing an opportunity for Cambodian nationals to re-evaluate their dark history. Last week, Cambodia released its first textbook on the "Killing Fields" genocide, reports Reuters.

Thirty years after the fall of Pol Pot's ultra-Maoist regime, many young Cambodians know little about one of the darkest chapters in the 20th century, education officials say.

"When we tell students about the Khmer Rouge genocide, they don't believe it and think it's fiction," Deputy Education Minister Ton Sa Im told Reuters.

"But now when they see the United Nations help Cambodia put Khmer Rouge on trial, they start believing," she said of the first trial of a top Pol Pot cadre due to start on Feb. 17.

More than 500,000 copies of the text book will be distributed in the impoverished Southeast Asian country, where more than half of its 14 million people were born after the Khmer Rouge were ousted in a 1979 Vietnamese invasion.

Regional countries have also been forced to revisit the past. For example, China on Tuesday defended its ties with Cambodia's Khmer Rouge, arguing that relations with the regime were part of "normal diplomatic relations," reports Reuters.