Since 2006, the United Nations and Cambodian Government have participated in the Extraordinary Chambers in the Courts of Cambodia, a hybrid tribunal created to try key Khmer Rouge officials for crimes of the Pol Pot era. In Hybrid Justice, John D. Ciorciari and Anne Heindel examine the contentious politics behind the tribunal’s creation, its flawed legal and institutional design, and the frequent politicized impasses that have undermined its ability to deliver credible and efficient justice and leave a positive legacy. They also draw lessons and principles for future hybrid and international courts and proceedings.
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About the Author
John D. Ciorciari is an assistant professor at the Gerald R. Ford School of Public Policy at the University of Michigan.
Anne Heindel is legal advisor to the Documentation Center of Cambodia.
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The Extraordinary Chambers in the Courts of Cambodia
By John D. Ciorciari, Anne Heindel
The University of Michigan PressCopyright © 2014 University of Michigan
All rights reserved.
FORGING A HYBRID COURT
"A Mountain Never Has Two Tigers"
Transitional justice could have taken many forms in Cambodia. A truth commission, lustration policies, amnesty programs, and domestic or international trials were all considered or attempted in the years following the Khmer Rouge reign of terror, but it was the ECCC that became the centerpiece of accountability efforts. Both the decision to focus on selected criminal trials and the features of the tribunal created to hold the trials were products of political compromise. Officials from the UN Secretariat and Cambodian Government forged the Court through difficult negotiations that boiled down, in the words of one journalist, to "bitter mutual distrust and an ensuing battle for control."
U.S. officials brokered key compromises, and key UN member states — particularly Japan, Australia, France, and the United States — pressed the UN Secretariat to conclude a deal. Partly for that reason, Cambodia won the battle for control, leading to an unprecedented hybrid court with majority domestic control and a bifurcated institutional structure. This chapter shows how a legacy of distrust and competing contemporary political interests translated into a hybrid tribunal with unique — and in many respects problematic — structural features.
A FOUNDATION OF POLITICAL DISTRUST
The emergence of a hybrid tribunal in Cambodia owes much to distrust. By the late 1990s, when official talks on a Khmer Rouge tribunal began, neither the Cambodian Government nor the UN Secretariat trusted the other side to run the process. Both sides had ample historical reasons to be suspicious of one another.
Battle Lines Drawn during the Cold War
A brief history of the Khmer Rouge movement is essential to understanding the challenges of accountability in Cambodia and the positions key actors would later take in negotiating the ECCC. The Khmer Rouge ("Red Khmer") movement was deeply embedded in the domestic and international political conflict that has engulfed Cambodia for most of its modern history. The Khmers Rouges emerged in the early 1960s as a radical offshoot of the broader Indochinese communist movement, rebelling against the royalist regime of Prince Norodom Sihanouk during a period when Cambodia was slowly drawn into the vortex of the Vietnam War.
In 1970, Marshal Lon Nol led a right-wing military coup against Sihanouk, who formed a government-in- exile in Beijing. With U.S. support, the corrupt and draconian Lon Nol government intensified repression of left-wing fighters and alienated much of the rural peasantry as the country descended into a brutal civil war. The United States, still at war in Vietnam, launched a massive aerial bombing campaign against Vietnamese sanctuaries and Khmer Rouge targets in Cambodia, causing widespread civilian casualties and driving more peasants into the arms of an increasingly radical and uncompromising communist insurgency. China and Vietnam funneled guns and grain to the Cambodian revolutionaries, who overran government defenses and captured Phnom Penh soon after a war-weary U.S. Congress withdrew financial support for Lon Nol in early 1975.
After the Khmer Rouge victory, darkness descended over the country. U.S. President Gerald Ford and Secretary of State Henry Kissinger asserted in May that a "bloodbath" and "atrocity of major proportions" was unfolding. Some accounts from refugees escaping to Thailand provided corroborating evidence, but those reports largely fell on deaf ears or were discounted as attempts to justify the Vietnam War after the fact. Some prominent Western intellectuals even offered sympathetic accounts of Khmer Rouge rule in the newly renamed state of "Democratic Kampuchea" (DK). The United Nations and Western powers did little in response to mounting evidence of atrocities, as the Vietnam Syndrome took hold in Washington and other key capitals.
China did worse, emerging as the Pol Pot regime's main external sponsor, furnishing aid and weapons to the Khmers Rouges to balance against Vietnamese influence in Indochina at a time of intense rivalry between Beijing and Vietnam's principal patron — the USSR. In addition to material support, China provided an ideological model for the Khmers Rouges, who designed their agrarian society roughly on a Maoist model and pledged to achieve a "super great leap forward." Pol Pot pointedly chose to unveil himself as leader and announce the existence of the Communist Party of Kampuchea (CPK) during a 1977 visit to China — a favor to his comrades in Beijing.
With most of the international community disengaged and China providing aid uncritically, the Pol Pot regime survived in power for nearly four years and exacted an immeasurable cost in human life and suffering. In addition to the countless losses and injuries sustained during the Pol Pot era, Khmer Rouge rule left deep scars in the country's social and political fabric that remain relevant today and affect the course of the country's accountability efforts. One was an utter devastation of the country's educated population. The CPK launched a merciless campaign to purge foreign and bourgeois influence from the country. Merchants, intellectuals, military officers, and bureaucrats were suspect; those wearing glasses or speaking a foreign language were sometimes set aside to be purged. The Khmer Rouge regime left behind a country with very few trained doctors, lawyers, counselors, teachers, bureaucrats, and other professionals to lead effective efforts at justice, truth-telling, reconciliation, and personal healing.
Another core feature of Khmer Rouge rule was a relentless assault on traditional social structures, including family units and ethnic and religious groups. Family members were often split; marriages were frequently somber, forced affairs designed to break apart the urban "new people"; and family members were taught to report one another for the slightest infractions or face harsh punishment themselves. The Khmers Rouges banned all "reactionary religions detrimental to Democratic Kampuchea," sent out explicit orders to "defrock the monks," razed the Catholic cathedral, and forced Cham Muslims to eat the same pork-laden food as others to survive. Ethnic minorities and hill tribes, viewed as politically suspect and possible fifth columns for foreign intelligence agencies, were also targeted for dispersion and sometimes destruction. Large-scale forced migration has left many survivors searching for loved ones, and the Khmer Rouge assault on faith and families has meant that the social structures most needed to help survivors heal have had to be rebuilt. Indeed, the Khmer word for reconciliation, phsas phsa, literally means "putting the broken pieces back together."
The opacity of Khmer Rouge rule has also contributed to a lack of public understanding of what happened and why. The regime's rhetoric spoke of broad revolutionary goals and the faceless "Organization," Angkar. Victims of purges were sometimes killed in public to set an example, but often they simply disappeared into CPK prisons or were sent away to be killed on the false pretense of redeployment. Years later, many Cambodians still ask who or what Angkar was. Many report that they still do not know with certainty whether some of their closest family members are dead or alive. One of the most common refrains is an inability to understand how such shocking violence could be possible, or what it could hope to achieve. In sum, CPK rule left Cambodians asking many painful questions but meager social resources with which to answer them — a major justification for international involvement later in the process.
Regime Change and False Starts toward Transitional Justice
The Pol Pot regime came to an end in January 1979, when the Vietnamese army and allied Cambodian resistance fighters invaded Cambodia and ousted the CPK. Leading the Cambodian resistance were former Khmers Rouges who had defected into southern Vietnam during the Pol Pot era. Importantly, these included the current President of the Senate Chea Sim, chairman of the National Assembly Heng Samrin, and Prime Minister Hun Sen, who defected to Vietnam in 1977 after serving as a relatively junior CPK military commander. Although no compelling evidence has implicated these senior officials in atrocities, links between the current Cambodian administration and the CPK raise the possibility of charges against sitting officials, which almost certainly adds to the government's resolve to control the Khmer Rouge trials.
By early 1979, the Vietnamese army and Cambodian resistance secured most of the country and established the new People's Republic of Kampuchea (PRK) as Khmer Rouge leaders took refuge in the hills and jungles. The PRK's top priorities were to defeat the large Khmer Rouge insurgency and pacify a country where impulses for revenge were strong. Some Khmers Rouges were tried and convicted in local courts, and others fell prey to revenge killings, but violent reprisals threatened to exacerbate Cambodia's civil war and push more former Khmer Rouge rank and file into the jungles. The PRK thus instituted a kind of reconciliation plan. It coaxed Khmer Rouge cadres to join reeducation programs by issuing leaflets and transmitting radio broadcasts promising leniency to those who apologized and rejoined the fold. Alongside that carrot, it wielded the formidable stick of counterinsurgency warfare.
In the summer of 1979, with help from Vietnamese officials, the PRK government established a "People's Revolutionary Tribunal" to address the crimes of the Khmers Rouges. The PRK Ministry of Justice conducted trials in absentia of former DK Prime Minister Pol Pot and Deputy Prime Minister Ieng Sary. The trial sought to win support for the PRK domestically and advance its claim for Cambodia's seat at the United Nations — an important mark of international legitimacy. Shortly before the trial, the presiding judge said publicly:
Trying the Pol Pot–Ieng Sary clique for the crime of genocide will on the one hand expose all the criminal acts that they have committed and mobilize the Kampuchean people more actively to defend and build up the people's power, and on the other hand show the peoples of the whole world the true face of the criminals who are posing as the representatives of the people of Kampuchea.
After an abrupt five-day trial, Pol Pot and Ieng Sary were found guilty of genocide and sentenced to death — history's first genocide conviction.
Although few observers doubted that the defendants were guilty of grave crimes, procedural flaws and politicization deeply undermined the trial's credibility. The tribunal's title nearly announced the defendants' guilt: "The People's Revolutionary Tribunal Held in Phnom Penh for the Trial of the Genocide Crime of the Pol Pot–Ieng Sary Clique." Pol Pot and Ieng Sary had no communication with their appointed lawyers, who were not permitted to cross- examine witnesses. Their counsel's feeble defense was to seek mitigation by asserting that their clients were mere accomplices to a Chinese master plan of genocide — an accusation that only confirmed the tribunal's nakedly political nature. Most outsiders disregarded the proceedings as a show trial to justify Vietnam's occupation of Cambodia. The 1979 tribunal did have elements of a hybrid nature, with an American communist defense lawyer working beside his Cambodian peer and an East German prosecutor advising the court, but the trial's main legacy was to highlight the risk that a domestically led judicial process could lead to a crudely stage-managed affair.
The 1979 verdicts had little practical effect. Pol Pot and Ieng Sary were beyond the PRK's reach, surrounded by Khmer Rouge insurgents who gained support from governments opposed to Vietnam and its principal ally, the Soviet Union. The Thai military provided sanctuaries and channels for aid, while China gave an estimated $100 million per year to the Khmers Rouges in military assistance and other aid. Western powers and other members of the Association of Southeast Asian Nations (ASEAN) helped organize a "Coalition Government of Democratic Kampuchea" (CGDK) composed of royalists, right-wing republican factions, and the Khmers Rouges to occupy Cambodia's UN General Assembly seat. Although Prince Sihanouk was the nominal head of the CGDK and republican leader Son Sann was Prime Minister, former DK head of state Khieu Samphan was vice president, and the Khmers Rouges were the coalition's dominant fighting force.
Western and ASEAN governments successfully framed the Vietnamese invasion as a violation of state sovereignty rather than a case of liberation. In 1982, by a large majority vote, the CGDK kept Cambodia's seat at the UN General Assembly. Like the mujahidin in Afghanistan or paramilitaries in Central America, the Khmers Rouges became useful proxies in a geopolitical game. Private human rights advocates based in the United States promoted accountability, twice attempting to bring cases against the CGDK in the International Court of Justice. However, those efforts had little effect without high-level political interest in putting the Khmers Rouges on trial.
Official efforts at transitional justice were limited during the 1980s and closely connected to the geopolitical struggle. In 1982 and 1983, a PRK organization called the Renakse (Salvation Front) organized a nationwide review and condemnation of Khmer Rouge atrocities comprising community meetings, site investigations, and thousands of survivor petitions bearing more than one million signatures or thumbprints. Yet the findings were not broadly disseminated, Khmers Rouges did not participate, and PRK officials revealed a nakedly political purpose: to wrest control from the CGDK in the UN General Assembly. The PRK also established a national "Day of Anger" to recall Khmer Rouge abuses. Perhaps more helpfully, the PRK erected Buddhist stupas and other memorials at former terror sites across the country and helped dig up remains from mass burial pits. Private efforts at reconciliation also arose, such as ceremonies during the annual pchum ben festival, a traditional Khmer day of remembrance of the dead. These practices helped Cambodians begin to heal, but they did little to address the scar of continuing Khmer Rouge impunity.
A Slow Crawl toward Accountability
In the late 1980s, the thawing of the Cold War led to UN-sponsored talks in Paris for a peace settlement in Indochina, but the United Nations and key member states continued to downplay Khmer Rouge accountability as part of a peace-before-justice approach. China insisted on Khmer Rouge representation, and other Security Council members agreed, believing Khmer Rouge participation provided useful leverage in securing a Vietnamese withdrawal and reduced Khmer Rouge incentives to spoil the peace. The talks led to the 1991 Paris Peace Agreement, which established a UN Transitional Authority for Cambodia (UNTAC) with mandates for various peacekeeping activities, civil administration, and organizing elections to produce a new Royal Government of Cambodia (RGC). UNTAC's mandate did not call for Khmer Rouge accountability. Politically, UNTAC helped marginalize the Khmers Rouges, which boycotted the UNTAC-sponsored 1993 elections, but from a military standpoint UN peacekeepers did little to defang the insurgency. That task would fall to the newly elected RGC.
The royalist party Funcinpec finished first in the 1993 elections. It was led by Sihanouk's son, Norodom Ranariddh, and enjoyed support from many Western governments. The Cambodian People's Party (CPP) — the successor to the PRK's governing party — finished second, and its leader was a young Hun Sen, who had served as Prime Minister in the pre-UNTAC period. Ranariddh lacked an outright majority, however, and Hun Sen maintained strong authority within the bureaucracy and security services. After some negotiation, Ranariddh agreed to share power with Hun Sen as Co-Prime Ministers in a newly refashioned constitutional monarchy, with Sihanouk as King and head of state.
Although the Khmers Rouges remained a significant fighting force, their foreign support dwindled, and the movement weakened. International interest in trying the Khmers Rouges rose in 1993–94, as the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) inaugurated a new phase in international criminal law. In 1994, the U.S. Congress passed the Cambodian Genocide Justice Act and established a special Office of Cambodian Genocide Investigation at the State Department. That office funded Yale University's Cambodian Genocide Program to establish the Documentation Center of Cambodia (DC-Cam), which helped lay groundwork for trials by accumulating information about DK atrocities.
Excerpted from Hybrid Justice by John D. Ciorciari, Anne Heindel. Copyright © 2014 University of Michigan. Excerpted by permission of The University of Michigan Press.
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Table of Contents
Chapter 1 Forging a Hybrid Court: "A Mountain Never Has Two Tigers" 14
Chapter 2 Pairing the Court's National and International Features 41
Chapter 3 Serving Two Masters: Dual Administration, Oversight, and Funding 70
Chapter 4 Case 001-Convicting an Infamous Khmer Rouge Torture Chief: "You Cannot Cover an Elephant with a Rice Basket" 104
Chapter 5 Case 002-The Centerpiece Case against Senior Leaders: "Cutting the Head to Fit the Hat" 134
Chapter 6 Cases 003 & 004-The Politics of Personal Jurisdiction: "No Gain in Keeping, No Loss in Weeding Out" 167
Chapter 7 A Historic First: Recognizing Victims as Case Parries 202
Chapter 8 Connecting to Cambodians: Outreach and Legacy 231
Selected References 403
Illustrations following page 166