The struggle for justice in the wake of the Khmer Rouge
The court in Cambodia announced the death of Ieng Sary “with regret.” Those words were puzzling: Did the court regret the passing of a human being, who may have meant a lot to his family? Or did the court regret that it had not yet completed its trial of him?
Ieng Sary was a Khmer Rouge leader, Brother Number 3, to be specific. Brother Number 1 was Pol Pot, who was Ieng Sary’s brother-in-law. Ieng Sary was typical of the Khmer Rouge: a student in Paris; a member of the French Communist party; a professor of history back home; a forger of the new Red world that would smash inequality.
The Khmer Rouge took power on April 17, 1975. This was the launch of “Year Zero,” as they had it. They ruled for three years, eight months, and 20 days — till January 7, 1979. Their rule was one of the most savage episodes in human history. They killed around 2 million people, which is to say, between a fifth and a quarter of the population. They had many apologists in the West, among intellectuals.
Ieng Sary was indicted for war crimes in the aforementioned court a long time after: on September 15, 2010. When he died last month, at the Khmer-Soviet Friendship Hospital in Phnom Penh, he was 87.
The court is known as the ECCC, which stands for Extraordinary Chambers in the Courts of Cambodia. To speak very formally, it is the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. That’s what the Year Zero people called Cambodia: “Democratic Kampuchea.”
It is a hybrid court, the ECCC: part Cambodian, part international, or U.N. But it is mainly Cambodian: A majority of the personnel are Cambodian. The court uses a mixture of Cambodian and international law.
Not until 2006 did the court begin its work. Not until 2009 did trials commence. What took so long, seeing as the Khmer Rouge fell in 1979? In brief, Cambodia was enmeshed in civil war, to one degree or another. And then there were protracted negotiations between the Cambodian government and the U.N.: What would the court look like? What would its powers be? In the government are plenty of former Khmer Rouge. This makes prosecution tricky.
The court is supposed to accomplish a number of things for Cambodia. It is supposed to expose the truth. It is supposed to enhance the rule of law. It is supposed to give survivors of the genocide a voice. (Survivors may participate in the trials either as complainants or as civil parties.) The court is supposed to punish the guilty, of course. And it is supposed to occasion some kind of catharsis. In a word, the court, like other courts, is supposed to achieve justice, however rough. This has proven elusive.
Ieng Sary was a defendant in the second and current trial of the ECCC — Case 002. He was one of four defendants. Now there are two: Nuon Chea and Khieu Samphan, i.e., Brother Number 2 and Brother Number 4. They are 86 and 81 years old. They are frail men who have suffered strokes. Brother Number 1, Pol Pot, died in 1998 at 72.
The Nazis were much younger during the Nuremberg trials — in their forties and fifties. Hitler himself had just turned 56 when he avoided capture and trial, shooting himself.
Ieng Sary’s wife, Ieng Thirith, was a defendant in Case 002. When the Khmer Rouge ruled, she was social-affairs minister. Like her husband, she had been a student in Paris — majoring in Shakespeare at the Sorbonne. She was excused from the trial last September on grounds of dementia. This happened at Nuremberg too. Gustav Krupp was excused, and he died at his castle in Blühnbach, Austria. As it happens, I had lunch there last summer. The current proprietor is an American and an improvement, to say the very least.
Before Case 002 came Case 001 — which had one defendant, Kaing Guek Eav. He is known as Duch, or Comrade Duch (pronounced “Doik”). What he did was preside over a prison called Tuol Sleng, also referred to as S-21. The prison was really a torture center: Some 16,000 people were tortured to death there. Seven people are known to have survived the place.
Duch gave the Nuremberg defense: He was merely following orders. He was convicted, and sentenced to 35 years in prison, reduced to 19. This sentence was appealed to a higher chamber within the ECCC: and that higher chamber upped the sentence to life. You never saw a sweeter-looking man than Duch. And, by the way, there is no death penalty in Cambodia. There isn’t any in Israel either — but they made an exception for Eichmann.
So far, Duch is the only person to have been tried, in full, for Khmer Rouge crimes. Like Brother Number 3, Brothers 2 and 4 may not live until the end of their trial. They are in and out of the hospital, and are receiving the best of care. Think of what their victims, those millions, received.
The ECCC is a vast operation, with a cast of hundreds. These hundreds come from all over the world. They are judges, lawyers, administrators, staffers, and on and on. Ieng Sary had an international team of five lawyers. One of them was a pretty young woman from Indiana. As of now, the ECCC has spent $209 million. A lot of fuss has been made over a few old men, and one senile woman.
You can see pictures of them, all over the ECCC website. They are the stars of the show. You see them smiling, sitting serenely, exchanging confidences with their lawyers. You can almost forget they are genocidal monsters.
The trials have been marred by a number of things — prominent among them, the interference or lack of cooperation by the government. It seems clear that the government has pressured the court not to indict certain persons. And when the court has summoned government officials, merely to give testimony, those officials have felt free to ignore the summonses. Then there is good old-fashioned financial corruption.
Claudia Rosett, the American journalist, who is an authority on the U.N., makes a point about international bodies such as the ECCC: They can become gravy trains. They can start to exist mainly for the benefit of those who work for them. The ECCC may well limp on, doling out its salaries and per diems, until the last Khmer Rouge croaks.
It may have been better to have a truth commission: no prosecution, just lots of testimony, and amnesty for all. John Bolton, the American diplomat and lawyer, is of this view, and so are many Cambodians. The Khmer Rouge defendants, far from confessing and apologizing, are proclaiming their innocence. They have no incentive to sing. You have the spectacle of one of Brother Number 2’s lawyers, a Dutchman, demanding that Henry Kissinger appear in the dock. It was the United States that made possible the rise of the Khmer Rouge, you see. “Without Kissinger, we would not be here today,” said the lawyer.
The Khmer Rouge trials can seem a farce, and a cruel one at that. “Justice delayed is justice denied” is an expression often heard from the court’s critics. If you look into the crimes of the Khmer Rouge, and then look into the seven-year history of the ECCC, you might ask, “Why bother?” I thought of an exclamation that rang through American politics earlier this year: “What difference, at this point, does it make?”
Ever since 1945, people have debated whether Nuremberg was worth it. The trials were tainted by the presence of the Soviets, of course, as judges and prosecutors. The Soviets were the Nazis’ original partners in crime. Yet, as the historian David Pryce-Jones says, Nuremberg did this: It established a record. It taught us things about the Nazis and their conduct. Have the ECCC’s trials — its trial and a half — served a similar purpose?
We have heard some interesting testimony, true. Some of it came from Vann Nath, one of that handful of survivors of the Tuol Sleng prison. He was so hungry, he almost ate into the corpses around him. He was spared execution because he was an artist who could paint portraits of Pol Pot. Chum Mey, another survivor, also gave testimony. Though almost tortured to death, he was spared when his jailers discovered that he could repair cars, typewriters, and other machines. (His wife and baby were killed.)
In court, Chum Mey was able to ask Duch why they insisted he say that he worked for the CIA. Duch gave a matter-of-fact answer: “The real CIA is different from people accused by the regime of being CIA. You were identified as someone who opposed the regime. That’s why we called you CIA.”
That is interesting. But in the past 35 years, we have learned a lot about the Khmer Rouge and its crimes, without benefit of the ECCC. For example, Vann Nath published a memoir in 1998. It must be said, though, that he greatly looked forward to the trials. “I could not sleep last night,” he said as the first trial began. “I was waiting for the sunrise so that I could see Duch in the dock.” (Vann Nath died in 2011.)
According to Sophal Ear, survivors of the genocide are split on the question of whether the court is worthwhile. He is a Cambodian-American political scientist in California, the author of a new book on foreign aid to Cambodia (harmful, he argues). Ear is a survivor himself; his father and brother were not. He says that the ECCC has almost no credibility now. Personally, he is not quite ready to give up on the court — but he is far from encouraged. He wonders whether the $209 million could have been spent in better ways in Cambodia.
So does Thida Mam, another survivor. (Her father, no.) She is a software engineer in Silicon Valley. At first, she had high hopes for the court. They have been dashed. She speaks of the ECCC with pain, frustration, and anger. She is dismayed at the corruption, the slow pace, the arrogance of the defendants, their proclamations of innocence, their self-justifications, the excusal of Ieng Thirith, the fact that Ieng Sary was given a grand and glorious funeral — the Ieng family is extremely rich, as leading Communists tend to be. She understands that the court must be civilized and humane, unlike the people it is trying. But must the defendants be so pampered? She finds she cannot follow the news from the ECCC any longer. Instead of helping her, it is tormenting her. “There’s no justice. I was hoping for some justice, but forget it.”
Sophal Ear points out that millions of Buddhists hold to the idea of karmic justice. His late mother trusted that, if there were no justice in this life, there would be in the next: The Khmer Rouge would come back as cockroaches.