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Assessing the ECCC

None of the challenges faced by the ECCC are insurmountable, and it has made some notable achievements. However, judging the success or failure of the court requires doing more than examining how the institution is performing according to its own mandate. For a transitional mechanism to be a success - for it to bring some sort of justice and some measure of reconciliation - it should identify and hold to account those most responsible for harms under the previous system. Yet, because of the very small number of people likely to face trial at the court, the ECCC works to offer impunity to the vast majority of those responsible for the destruction of Cambodia that started in the 1960s and whose effects are still felt now. To understand the challenges facing the ECCC and judge its contribution to a Cambodian transition, the national and international political contexts of the KR regime, the negotiations to establish the ECCC and the contemporary operation of the court must be examined.

At the start of this chapter I noted that the KR regime was in place between 1975 and 1979. The Introduction to the ECCC page on the ECCC Web site confirms this story:

The Khmer Rouge regime took power on 17 April 1975 and was overthrown on 7 January 1979. Perhaps up to three million people perished during this period of 3 years, 8 months and 20 days. The end of Khmer Rouge period was followed by a civil war. That war finally ended in 1998, when the Khmer Rouge political and military structures were dismantled.[1]

This is factually correct, and it is the truncated narrative on which justifications for the limited scope of the ECCC rest (that the Chambers should try only the KR leadership and those most responsible for crimes committed during the four-year period), but such a narrative omits too much to be allowed to stand without challenge. A more sensitive history of the period identifies many more actors who could (and should) be held to account - many of whom were and remain keen for the ECCC to be structured and operate in ways that omit consideration of their responsibility.

Few states have been so caught up in the machinations of great power politics in the second half of the twentieth century as Cambodia. The Khmer Rouge did not arise from nowhere - the instability through which it gained sufficient support and room for manoeuvre to launch a coup was aided significantly by the U.S. bombing of North Vietnamese supply routes in Cambodia that started in earnest in 1969. The United States dropped a higher tonnage of bombs onto Cambodia (a neutral state) than the total of all allied bombs used in the Second World War, in a bombing campaign that is estimated to have killed around 150,000 Cambodians and forced two million from their homes and into towns and cities.[2] Between 1969 and 1973, the Khmer Rouge is estimated to have grown from a movement of 10,000 to more than 200,000 troops and militia, with their recruitment propaganda giving prominence to the effects of the U.S. bombing.[3] The KR rise was also aided, according to one of the defendants in Case 002, by U.S. support for the Lon Nol regime which the KR deposed: Khieu Samphan claims he realised that violence was necessary to transform Cambodia after the United States supported a violent coup in 1970 to install Lon Nol.[4] Soon after Lon Nol took power, he declared war on the Vietnamese and their perceived communist comrades the KR and allowed a U.S. and South Vietnamese ground invasion of Cambodia that left 11,000 dead.

The KR organised its own violent coup to depose the widely despised and extremely repressive U.S.-sponsored Lon Nol regime and embarked on its mission to create a classless society through radical revolution. But the KR did not rule alone - it relied heavily on Chinese support. Up to 15,000 Chinese technical advisors were deployed to Cambodia between 1975 and 1979.

A cooling in Sino-Vietnamese relations coupled with KR paranoia turned the regime against the Vietnamese, who had initially been thought of as sympathetic to the revolution. Border skirmishes began to break out, and in 1979 Vietnam invaded Cambodia and deposed the KR - for reasons of realpolitik much more than humanitarianism (as reports of later Vietnamese atrocities attest). China and the United States (pursuing a detente in their relations) worked together for the first time to try to prevent the Vietnamese-installed regime from being recognised as a legitimate government.[5] Chinese advisors in Cambodia were replaced by Vietnamese, Soviet, Cuban and East European advisors - which led the U.S. and UK governments to block, well into the 1980s, NGO attempts to deliver emergency aid to the victims of the KR regime who desperately needed it.[6] In turn, the Vietnamese and Cambodians tried to block aid being sent to the refugee camps on the Thai border into which the KR (along with thousands of refugees) had been driven, and from where they regrouped and gained control of various zones. The Thai army tried to prevent the influx of refugees in part by driving many (40,000 in one incident alone) of those fleeing war back into Cambodia across mine fields. Thousands died this way - from mines, disease or dehydration.[7]

Throughout the period 1979 to 1993, the KR were supplied by China and Thailand and supported by many Western states (led by the United States and including the United Kingdom, Canada and Australia) who insisted that the KR delegation retain control of Cambodia’s seat at the UN General Assembly long after the scale of atrocities committed by the KR was known.[8] From 1979: ‘Not upsetting China over Cambodia became a major plank in Western governments’ approach to resolving the conflict, right up to the drafting and signing of the Paris Peace Agreement twelve years later’.[9] The international community tried to starve the PRK of power, in the hope that the regime would collapse. In order to avoid this, the PRK (led by Hun Sen) started a peace and reconciliation initiative with rival factions and began calls to prosecute KR leaders as part of the peace process. However, during the two years of peace negotiations in Paris from 1989, no Western states supported such trials. Japan proposed a commission of inquiry, but the United States resisted on the basis that it was ‘likely to introduce confusion in the international peace efforts’.[10] Peace was unequivocally prioritised above justice by international actors - though the commitment of the PRK to justice is doubtful. The call for trials was driven more by a desire to discredit a rival force in the civil war as it was by ethical principle, as evidenced by the PRK’s pragmatic use of amnesties in the 1990s.

Vietnam unilaterally withdrew from Cambodia in 1989, and a peace was finally brokered between the warring factions in 1991, following sustained pressure by China and the United States. The peace agreement did not include a mechanism to hold anyone accountable for past crimes, but rather acted to re-legitimise the KR within Cambodian politics by giving the KR delegation - led by Case 002 defendant Khieu Samphan - rights equal to those of other political parties. The United Nations Transitional Authority in Cambodia (UNTAC) was deployed in 1992 to organise elections. The elections (which were boycotted by the KR, who refused to participate in the new Supreme National Council) were held in May 1993, and UNTAC left only four months later, at the behest of the UN Security Council (UNSC) rather than because there were any signs that Cambodia was now at peace: ‘[f]or the outside world, the main objective had been achieved, namely to enable the former cold war powers to disengage from a country in which they no longer had any interest’.[11]

Hun Sen lost the 1993 elections, but forced his way into a powersharing coalition by threatening a coup. He worked through the 1990s to defeat the KR politically, including passing the 1994 Law on Outlawing the Group of Democratic Kampuchea. The law included an amnesty clause for rank and file members of the KR, which attracted thousands of defectors to the coalition’s side.[12] He also engineered in 1996 a controversial Royal Pardon for his 1979 conviction and immunity from prosecution under the 1994 Law for ex-Case 002 defendant Ieng Sary in exchange for his defection along with his forces to the government.[13] These amnesties were useful in bringing peace and accruing power to the coalition, but did not provide for any alternative forms of accountability in lieu of trials, making them hard to categorise as transitional justice mechanisms at all. The 1994 Law did recognise that the KR had committed crimes (the Preamble to the Law states that: ‘criminal, terrorist and genocidal acts [have] been a characteristic of the group since it captured power in April 1975 - forcible movement, abduction, killing and subsequently also robbery and banditry, laying mines, indiscriminately throughout the plains and forests, destroying public and private property, leading the killing of civilians, forcibly taking and illegally occupying national territory, and selling natural resources by violating the sovereignty of the Kingdom of Cambodia’) and Article 3 noted that KR members were still liable to existing criminal law, but Article 5 gave ‘members’ (as opposed to ‘leaders’) of the political organisation of the military forces of the KR six months to ‘return to live under the control of the Royal Government in the Kingdom of Cambodia without facing punishment for crimes which they have committed.’[14] No alternative form of accountability was proposed in the Law, nor any attempted prior to the establishment of the ECCC, the scope of the amnesty (for ‘crimes which they have committed’) was extremely broad, and no human-rights-based justification for the amnesty was given, nor any commitment to improving human rights included. Even though the 1994 Law stated that KR leaders would still be liable for prosecution, even this provision was overturned in negotiations with Ieng Sary in 1996. The 1994 amnesty and the 1996 pardon and amnesty that followed it were straightforwardly power-political instruments which may have led (although I am not aware of any evidence for this) to improved human rights observance due to a de-escalation of conflict, but certainly did not aim at such a result.[15]

Only in 1997, when the KR was almost a spent force, did Co-Prime Ministers Hun Sen and Norodom Ranariddh request assistance from the UN in creating a judicial forum to bring the most senior leaders of the KR to justice. In order to avoid a Chinese veto at the UNSC, the issue was brought to the UN General Assembly, who supported the efforts to hold the KR leadership accountable (the UNGA resolution in 1997 was the first time either of the UN’s principal organs had acknowledged the human rights violations of the KR regime).[16] The UN Secretary General responded by appointing a ‘Group of Experts’ who recommended that an international criminal tribunal be established on the basis that the Cambodian legal system lacked independence, skilled practitioners and the capacity to conduct trials with due process, and also because of concerns that the KR connections of some of those in power in the country would lead to too much political interference with the court.[17] The experts recommended trials of twenty to thirty people and supported a limited temporal and subject matter jurisdiction that excluded consideration of atrocities committed before or after 1975 to 1979 or war crimes committed by other states during 1975 to 1979 in order not to ‘detract from the unique and extraordinary nature of the crimes committed by the leaders of Democratic Kampuchea’.62

Hun Sen refused to accept a solely international court (in part to keep some level of control over it, but in part because of a deep - and mutual - distrust of the UN and international actors generally). While negotiations to establish a court were underway, Hun Sen continued his policy of de-fanging the KR, this time by welcoming Case 002 defendants Khieu Samphan and Nuon Chea to Phnom Penh as defectors in December 1998 and expressing a desire to ‘dig a hole and bury the past’ in order to avoid war (though stopping short of offering formal amnesty).63 In spite of the public criticism this engendered, it marked the final defeat of the KR - and a corresponding decrease in Hun Sen’s appetite for an accountability mechanism, suggesting again that the threat of trials was more a tool used to end the civil war and consolidate his regime’s power than supported on the basis of justice.64 After another four years of often acrimonious talks (spurred slowly onwards by Cambodian NGOs and international actors optimistic for success after the drafting of the Rome Statute to establish the International Criminal Court), in 2002 the UN pulled out of the negotiations on the basis that the court being proposed by Cambodia was neither independent nor impartial. Eventually a group of states, led by Japan and including the UK, France and the United States (which had changed policy in 1994 after NGO and Cambodian diaspora pressure had prompted the U.S. Congress to pass the Cambodian Genocide Justice Act, which required the U.S. government to support justice efforts in Cambodia) as well as ASEAN, pushed the UN back to the negotiating table, and a final agreement was reached in 2003.65

This history of the context and negotiations of the ECCC demonstrates both the political and moral implications of the limited jurisdiction

  • 62 Cited in Fawthrop and Jarvis, Getting Away with Genocide, p. 127.
  • 63 Cited in Fawthrop and Jarvis, Getting Away with Genocide, p. 135.
  • 64 Robert Petit. ‘Lawfare and International Tribunals’, Case Western Reserve Journal of International Law, Vol. 43 (2010), p. 195.
  • 65 See Craig Etcheson, After the Killing Fields (Westport: Praeger, 2005) and Fawthrop and Jarvis, Getting Away with Genocide, for more detail on the negotiations.

of the court, the shifting and often self-serving motives of the actors responsible for establishing it, and the difficulties involved in judging what success might mean given the history of internal repression and outside interference in Cambodia. Unfortunately the contemporary context of the court does not make assessment any easier - and a closer examination of the motives of both Hun Sen and international actors with regards to the ECCC suggests that the court is too much an instrument of power and misguided principle rather than of justice.

The relationship of the Hun Sen government to the ECCC since its establishment has been a troubled one. To its credit, the Cambodian government pushed for a tribunal to hold KR leaders to account well before the international community was willing to support such an idea. But it has not handled the court well. There are advantages to the government if the court legitimises the current regime’s narrative of rescue, reinforcing the role of Hun Sen and his senior officials in overthrowing the KR, and drawing attention away from accusations of ongoing corruption and human rights. Duncan McCargo notes, ‘Putting ageing Khmer Rouge leaders on trial provides a convenient set of domestic scapegoats for the shortcomings of the current government; and by demonstrating an ability to undermine the goals of the tribunal’s international backers, Hun Sen may prove able further to entrench his power base and secure his own standing.’66 Cooperation with the UN in establishing the ECCC also helped Cambodia to secure international aid and benefits. But the court is potentially a danger to the regime. In press coverage of the ECCC, in particular with regard to government interference in Cases 003 and 004, are frequent remarks that refer to Hun Sen’s past as a KR cadre who was purged from the party in 1977 and fled to Vietnam.67 References to his past are used to suggest that he does not want the court to prosecute more than Cases 001 and 002 because he himself could be implicated. In fact,

  • 66 Duncan McCargo, ‘Politics by Other Means?’, International Affairs, Vol. 87, No. 3 (2011), p. 617.
  • 67 For instance, MacKinnon, ‘Prosecutor Wants to Indict Five More Khmer Rouge’;Ek Madra, ‘Cambodia PM rejects wider Khmer Rouge Trials’, 31 March 2009, at http:// www.reuters.com/article/2009/03/31/us-cambodia-rouge-idUSTRE52U1IZ20090331, accessed 24 June 2013.

he held a relatively low status (junior commander) within the KR and it is more likely that he has two concerns: that if senior ex-KR politicians or officials are implicated it will undermine his regime and disrupt his claims to have led a movement that saved Cambodians from the KR, and that the longer the ECCC continues to work, the more unwelcome interest could be generated in the role played by China - once the KR’s major patron, now the largest contributor of foreign aid and foreign direct investment to Cambodia - during the 1975 to 1979 period.68 Hun Sen publically claims to be concerned that broadening the scope of prosecutions will lead Cambodia back to civil war - a concern that incidentally also serves to justify his particular style of for-all-intents-and-purposes authoritarian government.

Hun Sen and the Cambodian People’s Party govern ‘with absolute power and control all institutions that could challenge their authority’.69 Since overthrowing his Co-Prime Minister, Norodom Ranariddh, in a coup in July 1997, and winning an election in 1998 that was marred by violence and intimidation, Hun Sen has had full control over the country. His regime has been accused of severely limiting rights of expression, association and assembly, of committing numerous human rights abuses and of allowing widespread corruption.70 As Hauter explains:

Hun Sen and his entourage have plunged Cambodia into a kind of hell. The country has become a regime of organized pillage, a vast bazaar of plundered goods, a regional center for shady business of every kind: drugs, gambling, sex. The head of the national police, one of Hun Sen’s three closest associates, owns the largest brothel in the

country.71

Much corruption (which USAID estimates is the cause of $500 million stolen by government officials from public funds every year in Cambodia)

  • 68 As Craig Etcheson notes, as well as not wishing the details of its support for the KR to become widely known, for China, ‘prosecuting the leaders of an Asian communist revolution for the deaths of millions of people during the revolution [would] be a very bad precedent, indeed’. Etcheson, After the Killing Fields, p. 154.
  • 69 Picken, ‘The Beleaguered Cambodians’.
  • 70 Picken, ‘The Beleaguered Cambodians’.
  • 71 Francois Hauter, ‘Chinese Shadows’, New York Review of Books, 11 October 2007,

p. 1.

is connected to the logging industry.[18] Logging was first used by the KR to gain funds and weapons from Thailand, but is now exploited by the many Cambodian politicians who have developed stakes in the industry. In 2007 Global Witness reported that:

Cambodia is run by a kleptocratic elite that generates much of its wealth via the seizure of public assets, particularly natural resources. The forest sector provides a particularly vivid illustration of this assetstripping process at work... Cambodia’s army, military police, police and Forest Administration (FA) are all heavily involved in illegal logging... Cambodia’s most powerful logging syndicate is led by relatives of Prime Minister Hun Sen and other senior officials.[19]

As well as logging, the government has been criticised for land-grabbing schemes (around 20,000 residents were ejected from their land in Phnom Penh alone in 2008) and in September 2009 Hun Sen withdrew from a World Bank project aimed at settling land disputes, signalling the likelihood of further forced evictions.[20] Land grabs are often designed to clear land for Chinese exploitation, and Western donors complain that their (weak) attempts to incentivise the Cambodian government to reform are blocked or outbid by China.[21] However, Japan and large Western donors continue to donate - a record $1.1 billion in 2010 - while encouraging but not requiring reform.[22]

There is good reason, therefore, not to trust the motives of the Cambodian government in its dealings with the court, and not to allow the court to provide legitimacy to the regime. Yet Hun Sen has been allowed to use the ECCC very well in his own interests thus far. He can claim credit for the establishment of the ECCC and its success in Case 001 and Case 002 (assuming it runs its course) and looks likely to prevent Cases 003 and 004 from reaching the Trial Chamber. His staff are still embedded in the court, and corruption allegations have not been meaningfully confronted. If the court collapses through lack of funding or the withdrawal of the UN, he can blame the international community. And at the same time as claiming to support justice, his government continues to pursue policies that run counter to the principles of human rights and international justice that underlie the ECCC, safe in the knowledge that little effort will be made by international actors to attach conditions to the millions of dollars’ worth of external aid and investment given to Hun Sen’s regime each year.

It is not clear whether external actors can help bring justice to Cambodia. The UN was correct to insist during negotiations on a court which was impartial and independent, but the ECCC has turned out not to be, and neither the UN nor external donors have used the leverage open to them. Of Cambodia’s $1.5bn national budget, $825 million was supplied by foreign donors in 2010, meaning a great deal of scope for states to pressure the Hun Sen government to stop interfering in the court.[23] Despite Cambodia’s reliance on external aid, ‘[n]either the UN nor state donors have vocally supported the court’s judicial independence in the face of bellicose government statements.’[24]

It is also unclear whether external actors really want to bring justice to Cambodia. The expanded history of the KR given in this chapter should cause us to question any narrative that posits the Hun Sen regime as ‘bad’ and the international community as ‘good’ with regards to accountability in Cambodia. McCargo identifies an ‘uneasy tension’ between international liberalism and local authoritarianism, suggesting that, unlike liberal states, authoritarian states may choose to do business with their defeated enemies instead of or in addition to doing justice: ‘[t]he Hun Sen government chose to do business with Nuon Chea and other former Khmer Rouge leaders, until it became more advantageous to embrace a policy of putting them on trial.’[25] As outlined above, the situation is rather more complex. As well as some Cambodian victims and NGOs that support the ECCC for liberal reasons (and work alongside liberal international actors), the UN and a series of powerful, occasionally liberal, states did business with the KR and are keen to forget having done so, and/or do business with Hun Sen and are keen to continue.

Now that the ECCC has reached a crisis over Cases 003 and 004, the UN must decide whether to stay involved, and confer legitimacy onto the proceedings, or withdraw, and allow either show trials or no trials of the alleged masterminds of a genocide. If international actors withdraw from the ECCC and cause it to shut down, not only will this serve the interests of the government by ending trials, it will also reinforce the view of many in the country (and not without evidence) that the international community cannot be relied upon to protect or support them.

  • [1] ECCC webpage ‘Introduction to the ECCC’, at http://www.eccc.gov.kh/en/about-eccc/introduction, accessed 24 June 2013.
  • [2] Actual casualties are unknown. Kiernan estimates 150,000 (The Pol Pot Regime, NewHaven: Yale, 2002), but some estimates are upwards of 600,000 (for instance, Christopher Hitchens, The Trial of Henry Kissinger, London: Verso, 2001).
  • [3] Ben Kiernan and Taylor Owen, ‘Roots of U.S. Troubles in Afghanistan: CivilianBombing Casualties and the Cambodian Precedent’, The Asia-Pacific Journal, 28 June2010, at http://www.japanfocus.org/-ben-kiernan/3380#, accessed 24 June 2013. See alsoWilliam Shawcross, Sideshow: Kissinger, Nixon and the Destruction of Cambodia (NewYork: Cooper Square Press, 2002).
  • [4] ‘Facing Genocide’ film, directed by David Aronowitsch and Staffan Lindberg.
  • [5] Fawthrop and Jarvis, Getting Away with Genocide, p. 25.
  • [6] Fawthrop and Jarvis, Getting Away with Genocide, p. 18 and pp. 64-66.
  • [7] Haing, Survival in the Killing Fields, p. 414;Dunlop, The Lost Executioner, p. 186.
  • [8] Fawthrop and Jarvis, Getting Away with Genocide, pp. 52-70.
  • [9] Fawthrop and Jarvis, Getting Away with Genocide, p. 26.
  • [10] Fawthrop and Jarvis, Getting Away with Genocide, p. 98.
  • [11] Margot Picken, ‘The Beleaguered Cambodians’, New York Review of Books, 13 January 2011, p. 4.
  • [12] Kassie Neou and Jeffrey C. Gallup, ‘Human Rights and the Cambodian Past: In Defenseof Peace Before Justice’, Human Rights Dialogue, Vol. 1, No. 8 (1997), p. 1.
  • [13] The ECCC Trial Chamber ruled on 3 November 2011 that the 1996 amnesty and RoyalDecree are inapplicable to breaches of the 1949 Geneva Conventions, genocide andcrimes against humanity, reasoning that ‘an emerging consensus prohibits amnesties inrelations to serious international crimes, based on a duty to investigate and prosecutethese crimes and to punish their perpetrators’ (Trial Chamber Judgment, 3 November2011, E51/15, paragraph 53). This decision is currently under appeal.
  • [14] Translation of the 1994 Law is taken from Ieng Sary’s Supplement to His Rule 98 Preliminary Objection (Royal Pardon and Amnesty), 27 May 2011, at http://www.cambodiatribunal.org/sites/default/files/resources/e51_10_en.pdf, accessed 24 June 2013.
  • [15] For further discussion of legal aspects of the amnesties, see: Ronald C. Syle, ‘A LimitedAmnesty? Insights from Cambodia’, in F. Lessa & L. Payne (eds.) Amnesty in theAge of Human Rights Accountability (Cambridge: Cambridge University Press, 2012),pp. 291-314.
  • [16] Fawthrop and Jarvis, Getting Away with Genocide, p. 124.
  • [17] The Group of Experts for Cambodia, Report of the Group of Experts for CambodiaPursuant to General Assembly Resolution 52/135, UN doc S/1999/231, A/53/850, 16March 1999.
  • [18] Joel Brinkley, ‘Cambodia’s Curse’, Foreign Affairs, 1 March 2009, at http://www.foreignaffairs.com/articles/64833/joel-brinkley/cambodias-curse, accessed 24 June 2013.
  • [19] Global Witness, Cambodia’s Family Trees (London: Global Witness, 2007), p. 6. GlobalWitness, Country for Sale (London: Global Witness, 2009) documents similar corruption around oil and mineral exploitation.
  • [20] MacKinnon, ‘Prosecutor Wants to Indict Five More Khmer Rouge’.
  • [21] In March 2006 a group of international donors promised $600 million to Cambodia, withstrict anticorruption and human rights conditions. A month later, China offered $600million of its own - no strings attached. The 2006 attempted reforms, unsurprisingly,failed. For more on China’s relationship with Cambodia, see Hauter, ‘Chinese Shadows’and Ian Storey, ‘China’s Tightening Relationship with Cambodia’, The JamestownFoundation, China Brief, 1 July 2006, at http://www.asianresearch.org/articles/2881.html, accessed 24 June 2013.
  • [22] Robert Carmichael, ‘Cambodia’s Donors Pledge $1.1 Billions for Development’, Voiceof America, 2 June 2010, at http://www.voanews.com/english/news/asia/Cambodias-Donors-Pledge-11-Billion-For-Development-95519109.html, accessed 24 June 2013.
  • [23] Bureau of East Asian and Pacific Affairs Fact Sheet ‘U.S. Relations with Cambodia’,13 June 2012, at http://www.state.gov/r/pa/ei/bgn/2732.htm, accessed 24 June 2013.
  • [24] ‘Observers Fear Khmer Rouge Court Being Wound Down’, International Justice Tribune, 6 April 2011, at http://www.rnw.nl/international-justice/article/observers-fear-khmer-rouge-court-being-wound-down, accessed 24 June 2013.
  • [25] McCargo, ‘Politics by Other Means?’, p. 621.
 
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