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The Khmer Rouge Tribunal in the Dock In Search of Truth and Justice
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COMMENTARY
Phnom Penh, 1 February 2012
“Truth is a pre-condition of justice. Justice is necessary for shalom (which is peace that is more than the absence of conflict but entails the presence of justice. The KRT is full of deceit. Deceit can never turn into justice, no matter how sophisticated the spinning; but to the contrary, it can turn even more dangerous when with UN insignia.”
Case File:
Party Arguing on Behalf of the Victims:
Venue:
Issues:
(i) Whether the KRT has not reached such a point of farce that it is unable to provide basic justice to the Cambodian people;
(ii) Whether it isn’t better for the UN to acknowledge failure and to withdraw than to prolong the sham;
(iii) Whether the presence of the UN at this point of sham isn’t more destructive in ingraining the dark mentalities (of impunity, of cynicism, of fear, of low expectations) than if it were to stop the deceit by its withdrawal, and
(iv) Whether there isn’t an alternative upon withdrawal, or is withdrawal a matter of necessary “damage control” in salvaging whatever benefits can be had.
Background:
The Khmer Rouge Tribunal has the jurisdiction to try persons who are “most responsible” or were “senior Khmer Rouge leaders” over the destruction of 2 million lives during the period 17 April 1975 to 7 January 1979.
The KRT is an “internationalized” court: it is not “national” because it has UN personnel and is fully funded by the UN and international community; it’s not “international” because it was not sanctioned by the Security Council, with an automatically allocated budget.
The KRT is situated on a remote functioning military compound, one-hour drive from Phnom Penh city center. It is believed that Ta Tith, one of 3 accused in Case 004 theoretical works in this military compound.
The KRT has four cases: Case 001 against Tuol Sleng Security Center director Duch; Case 002 against the most senior surviving KR leaders. Cases 003 and 004 against five more individuals are expressly blocked by the government and are currently the cause of much public imbroglio.
The KRT has spent US$ 200,000,000 since its establishment in mid-2003 or US$150,000,000 since its operation in mid-2006, all from the international community even though the 2003 Agreement states that the RGC is responsible for the salaries and function of the Cambodian side of the KRT.
Case 001
On Friday, 3 February 2012, the Supreme Court Chamber of the KRT (or formally known as the Extraordinary Chambers in the Courts of Cambodia) will give its final decision on Case 001 about the mass crimes committed at Tuol Sleng Security Center under the leadership of Comrade Duch. This final verdict will have come after 5.5 years since the KRT came into operation, 9.5 years since the KRT came into being, 15.5 years since the Royal Government of Cambodia (RGC) and the UN began negotiation to establish the KRT, and 37 years since the commission of the mass crimes.
Tuol Sleng Security Center is only one of 200 security centers created by the Khmer Rouge, some of which had 20,000-30,000 deaths to Tuol Sleng’s 14,000.
Case 002
Only in early 2011, the KRT decided to break Case 002 into mini-trials. Only since November 2011, the KRT has been conducting hearings on the substantive crimes of Case 002, beginning with the crimes committed during the Phase I Movement (which is basically April 1975 and the following few weeks); this is envisioned to take 2-3 years. Effectively, this Phase I Movement will comprise the whole of Case 002, one line in the 3-page Table of Contents of the Indictment/Closing Order (see attached) for all the crimes committed during the Khmer Rouge era that will be accounted toward Nuon Chea, Khieu Samphan, and Ieng Sary.
The 3 senior KR leaders are octogenarian and in poor health; one Ieng Thirith is already out of the dock due to dementia.
As the international community is awed by the (accurate) sensationalism of the crimes eloquently described by the Co-Prosecutors, the Cambodian people instead are enthralled by the dangerously warped historical account put forth by Nuon Chea and Khieu Samphan in their evasion of all responsibility and their placing blame on the US and Vietnam. The two parties are emphasizing different topics, arguing past each other.
Here, the dangers are two-fold.
One, Cambodian are less interested in knowing about their own cruelty than about the larger picture of Cold War politics and the role of other nations in the destruction of Cambodia. Cambodians’ understanding of history is limited by what they heard and experienced (oral history) rather than by broad reading (as reading materials and access to them are scarce). In this light, the Co-Prosecutors’ arguments will have less force than those of Nuon Chea and Khieu Samphan’s. Stated differently, Cambodians will embrace the historical analysis/history lessons on Cold War politics put forth by the senior KR leaders to be the complete and sufficiently accurate history, as they do not have access to other counter-balancing narratives to refute the lies sprinkled into the truths of which they find resonating with the bits of history they heard and experienced.
Two and related, the Co-Prosecutors will be unable to concede to the destructive role of the US and of Vietnam to satisfy the justice and fairness demand of the Cambodian people. Ideally, the Co-Prosecutors should argue: “Yes, Kissinger should be tried for war crimes for the bombing of Cambodia. Yes, the Vietnamese military should be tried for war crimes for the K5 Plan. However, we are trying you, Mr. Nuon Chea, Mr. Khieu Samphan, as we are limited by the temporal jurisdiction of this Court. Responsibility is not zero-sum; their crimes do not absolve your crimes.” If the prosecution could make this simple statement before going on to focus on the KR cruelty, this acknowledgement would do a lot of good in satisfying the desire of the Cambodian people and deflating the force of Nuon Chea and Khieu Samphan’s arguments. Unfortunately, national and international politics will not allow the prosecutors to make this concession to our great detriment.
Cases 003 and 004
The Cambodian government has done everything to make sure that Cases 003 and 004 will not see the light of day.
Verdict:
I. Achievements: UNDERWHELMING!
KRT = Duch + Phase I Movement (April 1975)
= US$200,000,000 and counting…
= 10 years of negotiation, 6 years of operation and going…
Victims’ Participation:
EXPLOITATIVE, DISEMPOWERING—herding people to and fro like cattle to fill the auditorium without giving them substantive reading materials to take home with them, e.g. a copy of the Closing Order (or Indictment) has been and continues to be the state of affairs. The KRT employs vacuous, glorious language of unprecedented victims/civil parties’ participation, with the civil parties’ lawyers self-interestedly chiming in with great alacrity, and no one cares to check the facts or think through the possible harm. The Victims’ Unit is without any UN personnel. The Lead Co-Lawyer scheme is illegal as it runs contrary to basic rights of a “party”. Moreover, it only adds another layer of obfuscation to an already complex structure.
Justice:
DECEITFUL, JUNK JUSTICE
International Standard:
WINK! WINK!
II. Pronouncement: COMPLETE FAILURE. Beyond redemption.
III. Recommendation/Reparation: SECURE the ECCC INVENTORY for the VICTIMS. Then, WITHDRAW, which is a form of DAMAGE CONTROL. This opens the way for us who have to live with the rubbles to begin the process of salvaging whatever benefits and building on them in our process of healing and reconciliation.
Reconciliation is the re-stitching of relationships in a very broken society like Cambodia—individuals with individuals, groups with groups, citizens with the state, citizens with institutions (the building of civic trust). It necessitates a very comprehensive process of not only legitimate prosecution (e.g. the opportunity squandered by the Khmer Rouge Tribunal) but dialogue (e.g. forums we conducted all over Cambodia on "Justice and Reconciliation", deemed Cambodia's informal truth and reconciliation commission, which give voice to victims, survivors, perpetrators with the line between "victim" and " perpetrator "oftentimes indistinguishable), truth telling (as truth is a pre-condition of justice and peace a dividend), education, memorials (with honor and diverse stakeholders), reparations (that is genuine and practicable) etc." Justice is necessary for shalom (which is peace that is more than the absence of conflict but entails the presence of justice). The KRT is full of deceit. Deceit can never turn into justice, no matter how sophisticated the spinning; but to the contrary, it can turn even more dangerous when with UN insignia.
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