Is it time to wrap up the Khmer Rouge tribunal?

The Cambodian government has stated its position clearly: no more trials before the Extraordinary Chambers in the Courts of Cambodia. International and national co-investigative judges issued a split decision that divides the court. And donors and the United Nations remain silent. No one wants to take responsibility for closing down a tribunal that has spent twelve years and at least 320 million dollars to convict three people.

Is it time to wrap up the Khmer Rouge tribunal?©Tang CHHIN SOTHY / AFP
Will Maes Muth, a former naval commander under Pol Pot, escape justice?
4 min 27Approximate reading time

On November 28, the Cambodian and international judges issued separate closing orders due to disagreement over whether Meas Muth, a former Khmer Rouge naval commander, should face trial for a slew of crimes including genocide. It is the latest indicator of tensions between the two sides, with national judges widely thought to be under pressure from the government to block any further trials of Khmer Rouge officials.

Nuon Chea, Pol Pot’s second-in-command, and Khieu Samphan, the regime’s head of state, were handed second life sentences on November 16 for genocide and crimes against humanity. This was added to the life sentences they were already given in 2014 for separate atrocities. Only a day after the verdict, Interior Minister Sar Kheng gave a speech in northern Cambodia reiterating that the tribunal's work was done and there would be no more prosecutions. “There are no more [top Khmer Rouge leaders left to try], and our policy [is that] now this process has ended,” he said.

A long history of political interference

This echoed the sentiment of Prime Minister Hun Sen, himself a former Khmer Rouge commander, who has repeatedly voiced his opposition to ongoing investigations into mid-ranking commanders including Meas Muth, claiming it could plunge the country back into civil war. In 2010, he even told then-UN Secretary General Ban Ki-moon that he would not allow further trials.

Widespread accusations of political interference have plagued the court since its inception, particularly with regards to investigations beyond Nuon Chea, Khieu Samphan and Kaing Guek Eav, the former chief of the notorious S-21 security center, who was sentenced to life in 2012. Agreement between Cambodian and international judges must be reached if any other former Khmer Rouge are to face trial.

As a result, Meas Muth and former Khmer Rouge zonal deputies, Ao An and Yim Tith, will almost certainly never see their day in court. The Cambodian investigating judge also requested Ao An’s case to be dismissed in August while his international counterpart called for him to be indicted for genocide and crimes against humanity. Both cases are now in the hands of a special pretrial chamber, which also contains both local and foreign judges, to decide whether the cases move forward.

“Why do diplomats insist on supporting the trials?”

Despite this, the UN has faced heavy criticism for its silence over accusations of political interference on its watch. “Why do diplomats, the UN and some governments insist on supporting the trials when they’re clearly a farce? The answer is multifold,” said Brad Adams, executive director of Human Rights Watch's Asia Division. “The one that connects is that the US and others assured Hun Sen in 1997 and 1998, when the subject came up and I was working for the UN and involved in these discussions, that they would only go after the top leadership of the Khmer Rouge.”

Adams says that David Scheffer, then-US Ambassador at Large for War Crimes who later served as UN Special Expert on the Khmer Rouge tribunal, offered those assurances. “At the end [Scheffer] came in and said there was a maximum of 10, probably five or six, cases and we were like ‘What are you talking about?’ We were horrified,” Adams said. “[Scheffer] said that’s all that anybody is going to be willing to pay for. Thing is, he was right but he’s also been an instrument to that policy. Who knows what the market would have bared if he hadn’t stuck to that line? That was all based on the fact that he was trying to keep Hun Sen in the game and our point was there’s no point in doing this through Hun Sen - a former Khmer Rouge guy.”

Secrets talks

Regarding the remaining, government-opposed cases “003” and “004”, Scheffer, who even donated $3,000 of his own money to the court, said its doubters had been proved wrong in the past. “Throughout the history of the [Extraordinary Chambers in the Courts of Cambodia], there have been predictions that each case would never come to trial, and such predictions did not reflect the ultimate outcome. The judges, and only the judges, of the ECCC will determine the fate of Cases 003 and 004,” he said, adding that any decision should be made “based strictly on the evidence.”

In response to Adams’ claim he had assured the Cambodian government two decades ago that only the regime’s leadership would face trial, Scheffer said that the US drew up an operational list of between 10 and 20 “leaders” most responsible for crimes committed. The Cambodian government sought an even smaller list but that was resisted by the international negotiators, he claimed. “Once the ECCC was established, it fell to the co-prosecutors and co-investigating judges to determine the actual list of suspects,” Scheffer added.

Time to be honest

Long Panhavuth, a legal expert and tribunal analyst, said it was time the UN started being honest with the public about why the remaining cases would not move forward. “They should be clear and open on the problem. They cannot just let individual judges each issue [separate] closing orders,” Panhavuth said. He suspected the reason for the UN’s silence was down to fears it could put off court donors. “They do not want an outcry about the political interference because they are afraid there will be no more funding and the public will lose interest in the proceedings,” Panhavuth said. “I think those kind of approaches are wrong. They need to be honest about the problem so that they can manage the realistic expectations of the public.”

The US, Japan, and the EU all either declined or ignored requests for comment over why they continue to pump money into a tribunal that is on its last legs. A statement from the Australian Department of Foreign Affairs and Trade said the tribunal “determines the way forward on future cases” and that Australia would continue to “closely monitor” its work.

Adams said the continued financial support for the court was because the tribunal is “an easy win to sell to the public and themselves.” He also cited lack of effort on the part of donors to gauge Cambodian public opinion - which he labeled as “indifferent and even cynical” - along with a refusal to admit the court’s failings.

With time ticking, the chances of Meas Muth, Ao An or Yim Tith ever standing in the dock are slimmer than ever. Not that the former Khmer Rouge naval commander ever showed signs he was concerned the tribunal would arrest him. “I am concerned with planting my corn and cassava,” he told The Cambodia Daily, a local newspaper, upon being charged in 2015. “Now, I ask, who died? Where did I exterminate [people]?”