Successes of the ECCC
Perhaps the most significant and unexpected success of the ECCC is the fact that it is functioning at all. After years of negotiations, which were often at the verge of collapse, the ECCC has opened four cases. The court cannot, unfortunately, hold Pol Pot to account - he died in 1998, after having been tried by the leader of another KR faction, Ta Mok, for the murder of his second-in-command, Son Sen, and placed under house arrest in Thailand (ironic indeed that the only justice Pol Pot ever faced was from a member of his own regime - a regime which murdered almost all legal professionals in Cambodia while it held power). However, the accused persons being tried by the ECCC are of (for the most part) significant rank.
Case 001 is a single-accused case, which is now complete. After seventy-two days of evidence and the testimony of twenty-four witnesses, nine experts and twenty-two Civil Parties, Kaing Guek Eav (alias Duch), the former Chairman of the Khmer Rouge S-21 Security Center in Phnom Penh (also known as Tuol Sleng) was found guilty by the Trial Chamber on 26th July 2010 of crimes against humanity (persecution on political grounds, under which extermination, imprisonment, torture and other inhumane acts were subsumed) and grave breaches of the Geneva Conventions (willful killing, torture and inhumane treatment, willfully causing great suffering or serious injury to body or health, willfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and unlawful confinement of a civilian). Around 17,000 people are estimated to have been tortured at S-21, with most of them being taken, after signing coerced confessions, to be murdered at the ‘killing fields’ of Choeung Ek.10 Duch was sentenced to life imprisonment (increased by the Supreme Court Chamber from the thirty-year sentence imposed
10 The ECCC press release on the Duch verdict states, ‘Although finding a minimum of 12,272 individuals to have been detained and executed at S-21 on the basis of prisoner lists, the Chamber indicated that the actual number of detainees is likely to have been considerably greater.’ ECCC press release, at http://www.eccc.gov.kh/en/articles/ kaing-guek-eav-convicted-crimes-against-humanity-and-grave-breaches-geneva-conv entions-1949, accessed 24 June 2013.
by the Trial Chamber), and the trial is regarded as generally fair, having been conducted according to accepted standards of international due process.
Case 002 is a more significant case, due to the status of its defendants. On 21 November 2011, the Trial Chamber began to hear evidence against Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea; Ieng Sary, former Deputy Prime Minister for Foreign Affairs (now deceased) and Khieu Samphan, former Head of State. The defendants are charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949 and genocide under international law and homicide, torture and religious persecution within the meaning of the Cambodian Penal Code from 1956. This is the centrepiece trial of the ECCC, as the accused are alleged to be the most senior surviving leaders of Democratic Kampuchea.
Cases 003 and 004 are less progressed, and may not progress at all beyond their current state (for reasons explained below). In September 2009, the international Co-Prosecutor requested the Co-Investigating Judges to initiate investigations of five additional suspects - the as-yet officially unidentified subjects of Cases 003 and 004. The accused are widely believed to be former KR military commanders Meas Muth and Sou Met (who are thought to be accused of murder, torture, unlawful detention, forced labour and persecution) in Case 003 and rumoured to be KR Secretaries (district chiefs) ‘Me’ Im Chaem, ‘Ta’ An and ‘Ta’ Tith in Case 004.
Beyond confounding expectations by actually staging trials, other important successes cited by ECCC staff in interviews include allowing, for the first time in the history of international criminal justice, survivors to participate as Civil Parties. Although some victims feel that they are being asked to do too much (they are being given the responsibility for reconciling when senior KR cadres are not prepared to admit they were wrong or to ask for forgiveness, and many are being shielded from prosecution instead of put in front of the court) there is a broad consensus that the inclusion of Civil Parties in war crimes trials such as this is a progressive move as it has the potential to make justice more victim-centred or restorative.14
Almost as significant as Civil Party participation is public access to the Duch trial. The ECCC has the largest public gallery of any war crimes tribunal, and 28,000 people observed some part of Case 001 (usually a maximum of half a day) - which court staff proudly cites as the largest ever attendance at any court case, anywhere in the world.15 It’s not entirely clear if this is indicative of public interest - Robert Petit, the first international Prosecutor at the ECCC, noted that there were long queues to attend the first days of the Duch trial, but that attendance fell off after that, and the ECCC itself paid for the majority of the attendees to be bussed in for the trial.16 However, the numbers of attendees to some extent speaks for itself - even if people did not see much of the trial or did not understand the technical argument or the context, they did still see Duch in the dock, which many found hard to believe after the KR enjoyed more than thirty years of impunity and
- 14 Interviews in ‘S-21 The Khmer Rouge Killing Machine’ film, directed by Pithy Pan, and interviews with court staff and Civil Parties conducted by the author in Cambodia in March 2011.
- 15 ECCC, ECCC Surpasses Milestone of 100,000 Visitors press release, 4 January 2012, at http://www.eccc.gov.kh/en/articles/kaing-guek-eav-convicted-crimes-against- humanity-and-grave-breaches-geneva-conventions-1949, accessed 24 June 2013, and interviews with senior court officials, March 2011. The total number of public visitors to the court since February 2009 has now exceeded 110,000.
- 16 Remarks made at event ‘The Khmer Rouge Tribunal and the Challenges of the Hybrid Model’, SOAS, London, 17 June 2009.
a not inconsiderable amount of power within Cambodia. The Outreach office of the ECCC has learned from previous tribunals and invested a great deal in communicating the activities of the ECCC to the public, and international donors supported the production of ‘Duch on Trial’, a television show summarising and discussing developments in Case 001, which attracted up to three million viewers - 20 per cent of the Cambodian population.
In the interviews of senior staff conducted by the author in 2011, public interest in justice and the ECCC was commonly declared to be a mark of success, and Cambodians have been regularly surveyed to find out their views on accountability and the court. However, the results do not tell a clear story. A nationwide survey of 1,000 Cambodians published in 2009 showed that while 80 per cent of respondents considered themselves to be victims of the KR, 85 per cent had little or no knowledge of the ECCC (despite five detainees already being in custody at the ECCC at the time of the survey, and the Duch trial about to start). The majority wanted to see those responsible for what happened during the KR regime held accountable (90 per cent), to learn more about the KR period (85 per cent) and to see the KR suffer (71 per cent). Smaller majorities were in favour of the Cambodian government being in charge of the accountability process (58 per cent) and of KR leaders and officials being held accountable (51 per cent - versus 24 per cent Pol Pot; 20 per cent the KR regime as a whole; 11 per cent the five detainees at the time; KR cadres and local officials 6 per cent; foreign states who supported the KR 2 per cent). Trials (49 per cent), punishment (23 per cent) and imprisonment (12 per cent) were far preferred to making those responsible speak the truth (5 per cent), confess (5 per cent), or apologise (2.5 per cent). Only 26 per cent thought the ECCC was likely to bring justice, but this has increased since the Duch trial, with a 2010 follow-up survey showing that 37 per cent believed the ECCC would bring justice. Seventy-five per cent of Cambodians surveyed were aware of the ECCC in the 2010 survey, indicating the Outreach program’s success, but 90 per cent could still not name the five suspects detained at the time.
A final likely success of the ECCC is the momentum it has helped to generate towards a broader societal debate. It is too early to know if it has or will deter future violence, but it has, it seems, enabled the violence of the past to be discussed more openly: the KR period is now (for the first time) a compulsory aspect of school curriculums.
-  Michelle Staggs Kelsall et al., ‘Lessons Learned from the “Duch” Trial’, Asian International Justice Initiative’s KRT Trial Monitoring Group, December 2009, p. 6.
-  The fourth of the original defendants in Case 002, Ieng Thirith, former Minister ofSocial Affairs, has been declared unfit to stand trial at present due to her progressivedegenerative Alzheimer’s disease.
-  Open Society Justice Initiative, ‘The Future of Cases 003 and 004 at the ExtraordinaryChambers in the Courts of Cambodia’, October 2012, at http://www.opensocietyfoundations.org/sites/default/files/eccc-report-cases3and4-100112_0.pdf, accessed 24thJune 2013;KI-Media, “Charged Persons” of Case 003/004 Named in PUBLIC Documents (a Compliation), 9 April 2011, at http://www.scribd.com/doc/52628662/Charged-Persons-of-Case-003-004-Named-in-PUBLIC-Documents-a-Compilation, accessed24 June 2013.
-  Christopher Shay, ‘Cambodia’s Trial of the Century, Televised’, Time Magazine,11 September 2009, at http://www.genocidewatch.org/images/Cambodia_09_09_11_Cambodia_s_trial_of_the_century,_televised.pdf, accessed 24 June 2013.
-  Human Rights Center, University of California Berkeley, ‘So We Will Never Forget’, January 2009, at http://www.law.berkeley.edu/HRCweb/pdfs/So-We-Will-Never-Forget.pdf, accessed 24 June 2013.
-  Human Rights Center, ‘So We Will Never Forget’, p. 31.
-  Human Rights Center, ‘So We Will Never Forget’, p. 32.
-  Human Rights Center, University of California Berkeley, ‘After the First Trial’, June2011.
-  Interview with Youk Chhang, Director of the Documentation Center of Cambodia,March 2011.