By most accounts, defense lawyer Victor Koppe isn't known for mincing words. So when he delivered an excoriating indictment of the court known informally as the Khmer Rouge tribunal, there were more yawns than gasps from the judges, lawyers and spectators gathered in the courtroom on the outskirts of Cambodia’s capital, Phnom Penh.
“Procedural irregularities during the judicial investigation and this trial have been so persistent and troubling that we have hardly had time to object to them all,” Mr. Koppe said last week, according to transcribed remarks. “So too are the effects of the government’s pervasive control over these proceedings.”
"No one in this court is interested in ascertaining the truth,” he charged.
Few doubt that the man Koppe is defending, Nuon Chea, was at the top of Khmer Rouge, the radical Marxist guerrilla group whose ideology resulted in the deaths of as much as one-fifth of Cambodia’s population in the 1970s. Many more doubt the integrity of the judicial process that has sought to hold Nuon Chea and his co-defendant, Khieu Samphan, accountable for those atrocities. With their trial nearing conclusion, and future trials increasingly doubtful, the tribunal is leaving a tarnished legacy, as legal experts vow never to repeat a similar structure and Cambodians wonder about why so much money has been spent on a flawed process.
Nuon Chea and Khieu Samphan are scheduled to take the stand Thursday to testify as part of closing arguments in the two men’s trial on charges of crimes against humanity. With a verdict expected early next year, legal experts and historians are looking hard at what exactly the court has accomplished.
“It wasn’t Nuremberg, but it wasn’t Stalin’s show trials either,” says Peter Maguire, a US historian and frequent critic of the court. “Good intentions don’t necessarily yield good outcomes.”
The proceedings now nearing completion, known as Case 002, were supposed to be the tribunal’s marquee case. Formally known as the Extraordinary Chambers in the Courts of Cambodia, the tribunal in 2010 convicted a lower-ranking man nicknamed Duch of crimes against humanity, torture, and murder for his role as warden of the notorious Tuol Sleng prison. But that case, known as Case 001, was considered a relatively easy prosecution, and the process was in many ways a trial run for Case 002.
In addition to crimes against humanity charges against Nuon Chea, who was second in charge after the infamous Pol Pot, and Khieu Samphan, the movement’s head of state, prosecutors also sought charges of genocide and war crimes against them, and similar charges against Foreign Minister Ieng Sary and his wife, Ieng Thirith, minister of social affairs. Pol Pot died in 1998.
When United Nations diplomats began negotiating with Cambodian officials in the 1990s to set up a court, Nuon Chea, Khieu Samphan, and Ieng Sary were among the main contenders for prosecution. By then, the years of civil war and low-level insurgency that followed the Khmer Rouge’s 1979 ouster had ended, and a mid-level Khmer Rouge commander named Hun Sen had consolidated power and become prime minister.
UN negotiators wanted to set up a court similar to what was done for Yugoslavia and Rwanda, but the Hun Sen government balked. Ultimately, a “hybrid” court was reluctantly agreed upon, with a mix of Cambodian and international judges and lawyers, and safeguards to try and minimize political interference.
After the four members of the Case 002 docket were arrested, officials feared that their advanced age, and the complexity of the trial, would mean one or more would die before a verdict could be issued. In fact, Ieng Sary died in March at 88, while Ieng Thirith was found to be mentally incompetent to stand trial last year. The two surviving men are both in their 80s and in poor health.
Clearing out an entire city
To speed things along, the court split Case 002 into “mini trials” that would examine evidence in chronological order, beginning initially with the Khmer Rouge’s deportation of the entire population of Phnom Penh in April 1975, one of the largest such forced deportations in human history.
In her closing remarks on Oct. 21, Chea Lang, the Cambodian co-prosecutor, asked the court’s trial chamber to convict and sentence the two to life in prison. (Cambodia does not have the death penalty.) She also alluded to some of the policies of Khmer Rouge, whose brutality gave rise to the phrase “The Killing Fields.”
“We do not ask for the killing of these two accused. We do not ask you to condemn these men ... to be abused and beaten, to be bound and shot, to watch their children be torn apart and smashed against trees,” Ms. Chea Lang said.
It’s an open question whether the court will find the prosecution’s evidence persuasive and vote to convict Nuon Chea and Kheiu Samphan.
It’s also an open question whether the court will push forward with the prosecution of at least four more high-ranking Khmer Rouge officials. Some of those four were until recently on the payroll of the Cambodian military, and Prime Minister Hun Sen has repeatedly said there would be no further criminal cases after the conclusion of Case 002. That conflicts directly with many UN personnel working at the court, as well as outside legal experts, who say the court’s founding document explicitly provides for additional prosecution. At least one judge and a top prosecution investigator resigned from the tribunal as a direct result of the Cambodian refusal to allow further investigations.
The tribunal has also been plagued by funding woes. Since beginning operations some eight years ago, the court has spent nearly $210 million, funded overwhelmingly by Japan, Australia, the United States, and Germany, with just one conviction to show for it. The Cambodian government, meanwhile, has routinely fallen short in its share of contributions; in September, 200 Cambodian employees went on strike after not being paid for months.
The tribunal’s first international co-prosecutor, Canadian Robert Petit, called the tribunal “a cut-rate court.”
“It was structured by people who had insufficient knowledge of the actual court process. Then it was cut up by accountants in terms of structures, staffing, and budget,” Mr. Petit told an interviewer for the 2012 legal textbook ‘International Prosecutors.’ “So, in the end, if you had wanted to devise a court that wouldn’t work, you would be hard pressed to find a better model.”
Craig Etcheson, a longtime former employee of the tribunal’s prosecutor’s office and now a consultant, said the tribunal was conceived in part as an experiment to see how cheaply an internationalized trial could be conducted.
“We have discovered that you get exactly what you pay for. By its very nature, these kinds of trials are very expensive," he says. "If the international community wants to carry out such exercises, it should be prepared to pay for them, and they should be funded out of mandatory UN dues, rather than on a very uncertain voluntary basis, resulting in the delays and continual short-falls that we continue to see."
Many advocates also had praised the tribunal for giving, for the first time anywhere, victims the right to actively participate in trial proceedings, and seek reparations from the defendants. But in the historian Mr. Maguire’s telling, that’s turned it into something other than a criminal proceeding.
“It’s therapeutic legalism run amok,” he says. “It’s freighting a war crimes trial with things that nobody should ever ask of a trial. Truth, reconciliation: this is the language of therapy, not a trial. Moreover, how do you quantify these things, in a Buddhist culture?”
These days, most Cambodians are too young to remember the horrors of the 1975-1979 period. Still, Heather Ryan, a legal consultant who has worked for the US-based Open Society Justice Initiative, said overwhelmingly Cambodians thought it was proper for the Khmer Rouge leaders to go on trial.
“They may go on to rail against the court because it takes too long, costs too much money, is too complicated and too far away, but I have not spoken to Cambodians who say the justice process should have been skipped altogether,” she says. “Nonetheless, it has failed deeply in one of its critical purposes, that of demonstrating to Cambodians that a trial can be held in their country free of political interference when it runs into conflict with the interests of the ruling powerful.”
Youk Chhang, a survivor of the Khmer Rouge who now heads the Documentation Center of Cambodia, housing thousands of archival materials, said regardless of its problems, the court served the purpose of moving Cambodia out of the shadow of the Killing Fields.
“I would not conclude based on the verdicts of Case 002 or 001. We have to go all the way. It’s a long walk for Cambodia since the collapse of the Khmer Rouge. We walked back to the village, we walked back to the some of the towns. We have to walk until the end,” he says.
Joseph Freeman contributed to this report from Phnom Penh, Cambodia. Mike Eckel reported from Cambodia from 2009-11.