A genocide tribunal of ‘extraordinary injustice’

Last month, the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC), more commonly known as the Khmer Rouge Tribunal, delivered a verdict against two former leaders of the Khmer Rouge, Nuon Chea and Khieu Samphan, convicting them of genocide and crimes against humanity. But there is nothing “extraordinary” about this outcome.

Every apparatus set up in Cambodia under Hun Sen’s authoritarian regime – from the country’s faux democracy to a faux big baroness  (the country’s first lady) and the tribunal – is merely for show, part of an effort to create the illusion that that the country is progressive and has a functioning system that operates in accordance with international standards.

The truth is, this farcical tribunal failed to deliver justice for victims and Hun Sen got away with crimes committed over the span of a decade in the presence of the UN-backed body.

The crimes of the Khmer Rouge have been more correctly identified as “against humanity” and not “genocide.” This is because whether they were Muslims, Vietnamese, Chinese or Cambodians, teachers or laborers – Pol Pot’s murderous regime targeted them due to their “anti-revolutionary views” – for being sympathizers of American imperialism.

Victims who suffered and died during the Pol Pot era (1975-79) – including an older brother of the author – were killed not by senior members but by lower-level cadres and junior cadets, For those victims, the wait for justice continues as the perpetrators are still roaming free inside and outside Cambodia.

For Cambodians, justice is elusive. What purpose does this tribunal serve for the estimated 1.7 million victims? More importantly, what purpose does this tribunal serve for humanity in general when its verdicts are dictated by Hun Sen’s judge?

Tragically for Cambodia, like the implementation of the 1991 Paris Peace Accords, this UN-sponsored Tribunal has failed Cambodians.

Inherent problem

For some stakeholders, the verdict delivered some form of justice. But at what expense for Cambodia and Cambodians?

Authoritarians have been allowed to grow in strength under the gaze of this tribunal, as 3 million Cambodians were unjustly stripped of their democratic right to vote for a now-dissolved party.

To begin with, there was an inherent problem for the United Nations in having a hybrid tribunal constituted in a jurisdiction controlled by Hun Sen, who once served as a junior cadet under the Khmer Rouge.

Second, the immense suffering of the survivors and victims, coupled with a series of protracted negotiations between Hun Sen and the United Nations (stretching from 1997 to 2006 when the court was finally constituted) and the latest verdict, which found only three defendants guilty, at a cost of US$300 million, represents a ludicrous injustice.

Also, when you consider the scale of injustice and suffering experienced by millions of Cambodian under this authoritarian regime, coupled with Hun Sen’s so-called “judge” openly interfering with the tribunal’s work, there has been a clear lack of judicial independence.

Rather than being an institution that could have eradicated corruption within the local judicial system, the UN-sponsored tribunal became a victim of Hun Sen’s patronage network

Rather than being an institution that could have eradicated corruption within the local judicial system, the UN-sponsored tribunal became a victim of Hun Sen’s patronage network.

For example, in 2010, Marcel Lemonde stepped down as the tribunal’s co-investigator, conceding that efforts to introduce international judicial practices to the local court system had failed to deliver an “efficient” mix.

In 2011, Human Rights Watch demanded  that Huns Sen’s judges be removed, saying they “egregiously violated their legal and judicial duties.”

In 2015, a Cambodian judge blocked a co-investigating judge, Mark Harmon, from arresting an alleged perpetrator, resulting in his resignation – which undermined public confidence in the tribunal’s ability to deliver justice for victims.

Justice is selectively delivered

For Cambodians, justice, like human rights and democracy, is selectively dispensed. The scale of justice and compensation victims and perpetrators receive is in accordance with their level of allegiance.

Contrary to the views of some experts who claim that the tribunal was necessary to combat the culture of impunity, Hun Sen’s authoritarian regime is strengthened by the tolerance of the patronage network.

For example, Hun Sen controlled salary payments to the local staff and, in 2013, Human Rights Watch said, “Hun Sen has spent years obstructing the trials, but donors to the court have played along and continued to subsidize a seriously compromised court,”

Another reason that this tribunal failed Cambodians is that it has been a witness to ongoing crimes and gross human rights violations committed by Hun Sen’s regime since its inception.

Indeed, gross injustices have been committed by the international community as it is too obsessed with chasing after a few frail culprits, thereby allowing Hun Sen to perpetrate horrendous crimes against Cambodians.

That was the “extraordinary” injustice that Cambodians have experienced under this tribunal.

A litany of crimes would need a booklet to list but a good example is the latest report by Human Rights Watch, which identified the “dirty dozen” involving Hun Sen’s generals, whose well-documented misdeeds have gone unpunished.

Another example is in 2014 when at least 40 agencies signed a statement submitted to the International Criminal Court urging a preliminary examination with a view to opening a full investigation.

Allegations of widespread and systematic crimes connected to a massive land-grabbing campaign amount to a crime against humanity and are ongoing. The land grabs, which have been perpetrated for well over a decade, have reportedly affected an estimated 770,000 people.

Victims have had to go offshore in search of justice, unaided by the United Nations, making this a tribunal of “extraordinary” injustice to Cambodians.

Hun Sen outmaneuvers United Nations

It was a foregone conclusion for victims and survivors that Cambodia’s killing fields atrocities were committed by top leaders of the former regime from 1975 to 1979 – including Pol Pot, Nuon Chea, Khieu Samphan and Ieng Sary.

In fact, if justice for Cambodia only meant finding the culprits, then there is an abundance of history books identifying them, so there is need for an “extraordinary” tribunal.

Since negotiations began in 1997 right up to the tribunal starting in 2006, Hun Sen was manipulative and calculating. One of the conditions that Hun Sen imposed was to have more Cambodian judges on the panel. Even though the UN knew that Hun Sen had no trained judges of an international standard, it acquiesced to his demands.

In Justice Squandered, Joel Brinkley wrote in 2013, “Hun Sen battled with the UN as he did not want to have an autonomous body set up that he could “not manipulate to protect himself and his fellow former KR friends.”

In fact, Brinkley noted that the late UN secretary general Kofi Annan was frustrated with the negotiations, saying, “Hun Sen must change his position and attitude” and that the United Nations wanted a credible tribunal that met international standards.

It is a well-documented fact that the court is riddled with corruption and is subject to malign Cambodian government interference in its operations. Several judges and staff members have quit in disgust.

Despite the fact that the tribunal exposed Cambodia’s way of doing business – incompetent, indolent, rapacious, corruption for everyone in the world to see, like a dollhouse with no back wall – the United Nations tolerated Cambodian judges’ influence over the proceedings.

Moving forward, the operation of this tribunal should cease immediately unless the United Nations is ready to confront Hun Sen and his Cambodian judges. The longer the tribunal continues, the more crimes Hun Sen and his regime will commit against Cambodians.

Cambodians have missed the opportunity to secure justice and begin a healing process. The tribunal should have been set up in along the lines of the South African Truth and Reconciliation Commission. Sadly, however, the international community must now accept that the tribunal represents an “extraordinary” injustice that Cambodians will have to live with for generations to come.