In the wake of the devastation left by the Khmer Rouge’s reign of terror and the subsequent civil war, a war crimes tribunal, the Extraordinary Chambers of the Court of Cambodia, has been put in place in order to gain justice for the many victims of the regime, with five high-ranking members of the Khmer Rouge standing trial. Part of the hope of the court is not so much that justice will be gained, but that Cambodians will begin to understand their history more fully and, with that understanding, begin to come to terms with the past.
The ECCC and its processes:
The Extraordinary Chamber of the Courts in Cambodia (ECCC), also known as the Khmer Rouge Tribunal, was formally established as a result of a series of resolutions and initiatives between 1997 and 2006, as a co-operative venture between the United Nations (UN) and the Royal Government of Cambodia. Court proceedings began on 31 July 2007, with the indictment of its first defendant, and the court is still in session. The court buildings were purpose built, in the Cambodian capital Phnom Penh. The court’s full title is the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, and its mandate is to prosecute members of the Khmer Rouge regime for serious war crimes and crimes against humanity committed between 17 April 1975 and 7 January 1979.
The ECCC is a ‘hybrid’ court, which operates under the control of both the United Nations and the Cambodian government, while maintaining the principle of independence from both. Unlike the famous Nuremberg trials held after World War II, which saw the Allied nations prosecuting German defendants according to the legal provisions of their own nations and their interpretation of international law, the ECCC has been established as a domestic court, which operates according to the principles and processes of Cambodian law, along with relevant rules established by international law. In terms of personnel, the court maintains a careful balance between Cambodian and international prosecutors, judges and defence attorneys (including former New Zealand Governor General, Dame Silvia Cartwright), and employs specific voting strategies to prevent block voting by either Cambodian or international personnel. In particular, the court employs a ‘super-majority’ voting system, which makes it impossible for a vote to be carried by either an all-Cambodian or an all-international bloc.
1 | Watch the video explanation of the ECCC, its structure and processes. See also this website for details on the particular organisation of the court and its legal processes. Map out the organisation of the court, in terms of personnel and processes, as a diagram. Why is this process so complex in structure, and whose interests are being protected? How does the court create a balance between Cambodian and international representatives? Why do you believe this is necessary? Which group has the most influence? How do you believe the priorities or interests of Cambodian and international officials involved in this legal process might differ? See the Court’s mandate at www.unakrt-online.org.
FILM CLIP: EXPLANATION OF ECCC
The court and its investigations have focussed on those senior members of the regime who are still living and fit enough to face trial. Many of the defendants (including Comrade Duch) have been held in prison since the official collapse of the Khmer Rouge in 1998, following the end of the civil war. The leader of the Khmer Rouge, Pol Pot, died while under house arrest by a faction of the Khmer Rouge headed by Ta Mok.
To date, the ECCC has concluded one case, Case 001, against Kaing Guek Eav, widely known by the alias Comrade Duch, who was formerly the commandant of the Khmer Rouge’s Tuol Sleng ‘Security Prison’ (known as S21), which was responsible for the illegal imprisonment, torture, and execution, of as many as 20,000 people, including civilians and children. The ECCC prosecution tried Duch on numerous counts of crimes against humanity and war crimes, and a guilty verdict was handed down on 27 July 2010, sentencing the 68 year old Duch to life imprisonment (40 years); the heaviest sentence (a UN) court sentence can impose. This was reduced to 19 years, given his evident cooperation, time served and a period he spent in illegal detention. Many victims were distraught at how light his sentence became. Both prosecution and defence teams appealed the decision through Cambodia’s highest court, the Supreme Court and on February 3, 2012, eleven appeal judges extended Duch’s sentence to life imprisonment.
2 | Watch the following clip which includes some of Comrade Duch’s closing statement to the ECCC at the end of his trial. To what extent do you believe that this man was, as he argues, simply following orders from higher up the chain of command, and therefore innocent of the crimes he committed? Is it possible to both acknowledge the crimes one has committed, and not take responsibility?
FILM CLIP: VERDICT DAY
FILM CLIP: SUMMARY STATEMENTS
3 | How is the figure of Comrade Duch presented by the film Brother Number One? Consider the representation of Duch in court, as well as information provided by historians Elizabeth Becker, Sophal Ear and Youk Chhang and the insight they provide into the life led by Duch just before the years of the Khmer Rouge regime.
FILM CLIP: COMPUTER SCENE
FILM CLIP: COMRADE DUCH 1
FILM CLIP: COMRACE DUCH 2
The second case to be tried at the ECCC is still in session. Case 002 concerns four defendants – three ‘Brothers’ and one ‘wife’ from Pol Pot’s inner circle: Nuon Chea, aged 84, former Deputy Secretary of the Communist Party of Kampuchea; Khieu Samphan, aged 79, former Head of State; Ieng Sary, aged 85, former Deputy Prime Minister for Foreign Affairs; and Ieng Thirith (wife of Ieng Sary), aged 78, former Minister of Social Affairs. All four are charged with crimes against humanity and genocide. While Duch has partially admitted his guilt, the four Khmer Rouge leaders in Case 002 will be harder to indict, despite being even more culpable than Duch. The court process has been fraught with instability, and, although two further cases (Case 003 and Case 004) are in their preliminary stages, the prosecution's desire to try five more Khmer Rouge leaders has been met with opposition from Cambodia's prime minister, Hun Sen, who has suggested that further trials could lead the country into civil conflict. Rob Hamill did apply to be a Civil Party in Case 003 and 004, but his application was rejected, as was his appeal. However, two (of five) appeal judges, both of them international, dissented, saying Hamill’s application should have been accepted as a Civil Party. They also cited the discovery of altered documents on the case file by the co-investigating judges.
