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CAMBODIA: Verdict Marks End of Impunity for Khmer Rouge Torturer

Analysis by Marwaan Macan-Markar

BANGKOK, Jul 27 2010 (IPS) - For a country plagued by a weak judiciary and where government officials have profited from a culture of impunity, Monday’s verdict in the first case to try a surviving commandant of the genocidal Khmer Rouge regime broke new legal ground in Cambodia.

The ruling by a U.N.-backed special war crimes tribunal against Comrade Duch, whose real name is Kaing Khek Eav, brought to an end the fears by the estimated five million survivors of that dark period in the South-east Asian nation’s history that the Khmer Rouge hierarchy would in the end get away with their brutality.

After all, the verdict came 31 years after the Khmer Rouge was toppled by advancing Vietnamese forces, followed by years of civil war and feuding between Cambodian political factions, where talk of an international war crimes tribunal or hauling Khmer Rouge commanders to face justice were remote in the countryside.

The 77-day trial of Duch, which began in March 2009, marked a turning point for those who survived to tell the tale of the Khmer Rouge’s reign of terror from April 1975 to January 1979. Some 1.7 million people, nearly a fourth of Cambodia’s population at the time, died of starvation or forced labour, or were killed during those years.

The Extraordinary Chambers in the Courts of Cambodia (ECCC) found the 67-year-old Duch guilty of crimes against humanity and war crimes and initially slapped him with a 35- year prison sentence. But the jail term was reduced to 19 years after the court accounted for the five years he had been illegally detained by a military tribunal since his arrest in 1999 and the further 11 years he had been behind bars till his trial began.

Duch’s trial and the verdict dispensed by this hybrid court, which had a mix of international and national jurists, offered a stark contrast to the period of Khmer Rouge terror, during which Duch was the torturer-in-chief of Tuol Sleng, a former high school in Phnom Penh where prisoners were interrogated, tortured and killed for being enemies of the regime.

The ECCC verdict has also taken a small step further the prospect of political figures and leaders being held accountable for their actions while in power.

“The mixed court deserves credit for its effort to ensure a fair trial and a verdict,” said Chea Vannath, former president of the Centre for Social Development, a Phnom Penh-based think tank. “The verdict may not satisfy everybody 100 percent but for me, something is better than nothing.”

“The court also sends a strong message to officials in power today and in the future,” added Chea, who lost relatives during the Khmer Rouge genocide. “They need to be careful about their actions because the people now know that justice is possible for those who abuse their authority.”

The trial also offered the first public accounting of the horror Duch and his jailers unleashed with mathematical precision in Tuol Sleng, where 14,000 people, including babies, were killed. Only 11 people came out alive from S- 21, as that torture chamber was known at the time.

The process by which this trial was carried out – it reportedly cost 100 million U.S. dollars — has made it a benchmark. Duch’s trial was largely free of political interference from the increasingly authoritarian regime of Prime Minister Hun Sen, a former Khmer Rouge functionary before he defected to the pro-Vietnamese camp.

The composition of the court in this experiment in international justice is also being seen in better light following the Duch trial, in contrast to the bitter debates that preceded the ECCC’s first case.

The acrimonious lead-up to the ECCC’s creation at times pitted the United Nations, international funders, international human rights groups against the Hun Sen regime. Concerns about the quality and integrity of some Cambodian jurists even prompted a call for the tribunal to be held in a neutral foreign country, following the path of the war crimes tribunals for Rwanda and the former Yugoslavia.

“A mixed tribunal of having national participants in the justice process is necessary and proper,” Roger Normand, Asia-Pacific director at the Geneva-based International Commission of Jurists, said after the Duch verdict. “Having a process that is externally driven and seen as stemming from pressure from outside is not sustainable.”

“Whatever the criticism of the tribunal, this is a positive model given the background of interference and lack of fairness in the domestic legal process,” he told IPS. “The trial process also served as a public education about a dark period of Cambodia’s past.”

Still, the ECCC itself will continue to be on trial as it takes up the cases against other Khmer Rouge leaders who were more dominant players in that extremist Maoist movement than Duch.

The global rights lobby Human Rights Watch (HRW) is urging the ECCC to go beyond the four Khmer Rouge leaders due to go on the dock — Nuon Chea, who was deputy to Khmer Rouge leader Pol Pot, Khieu Samphan, the country’s president then, Ieng Sary, the foreign minister at the time, and his wife, the former social affairs minister Ieng Thirith.

“Only holding five people responsible for the Khmer Rouge genocide falls far short of what the ECCC could accomplish,” Phil Robertson, deputy director of the Asia division at the New York-based HRW, told IPS. “Others should also be prosecuted for their roles in the Khmer Rouge genocide.”

“This should be an evidence-based process, not politically determined by one side or one group of people,” he added.