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Volume 6

August 2010

Number 2

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

The First of the Few? - The Khmer Rouge Face the Courts

The first of five projected trials of senior members of the Khmer Rouge before a Cambodian UN-backed Court ended on July 26th with a 35-year sentence for Kaing Guek Eav, otherwise known as Duch. This despicable human being was the commander of S-21, the torture and murder centre located in an abandoned school in the Tuol Sleng suburb of Phnom Penh. Among the hideous items on display there are photographs of his and his accomplices' victims - men, women, children, some bruised, some bloody, nearly all terrified. There is a vast collection of "confessions", sets of rules and prescribed punishments for breaking them, the implements of torture and murder - and photographs also of those responsible for this dreadful place. More information and photographs are available from the website of Yale University's Cambodian Genocide Program:

Many thought that the day would never come: too much time had passed, too many interests of those in authority were possibly at stake: Prime Minister Hun Sen was once a KR cadre, as were a number of his colleagues (defecting to Viet Nam when it became clear that his own appointment with the Killing Fields was not far away). The relatives of some were in or just outside the Court with hundreds of others when sentence was pronounced (it was carried live on Cambodian broadcast media). A few were quoted as being satisfied that justice had been done. But most thought otherwise, and said so. They wanted him to remain behind bars for the rest of his days - the Court rejected a life sentence because the accused had shown remorse, and there was hope of his rehabilitation. But it isn't quite 35 years. Duch receives credit for the 11 years behind bars awaiting trail, and 5 were deducted because he had spent so long in pre-trial detention. Thus, he has another 19 to serve. And, if the authorities believe that he has been rehabilitated (and that arguably can be taken any way one wishes), he could be free in 11. He will be 78 years old by then.

More than $78 million US, of foreign-donated funds, has been spent on establishing the Extraordinary Chambers in the Courts of Cambodia (Duch was tried by the trial chamber), and the tribunal was established only after five years of negotiations between Phnom Penh and the United Nations. The support of the latter was considered indispensable to signify that proceedings would be fair both to the accused and the ends of justice. These were not to be "show trials" which would railroad defendants nor yet be unduly lenient to them, due to fears of what they might say to embarrass some in authority. The writer recalls Hans Correll, former UN Under-Secretary-General for Legal Affairs being most insistent on these points.

This sentence (the verdict cannot have been in doubt because the accused admitted his role, pleading superior orders: I had to kill or be killed) will fuel the debate between those who believe that such trials are necessary, even 30 years after the events, and others who consider first that the money could have been better spent, especially in Cambodia, and that more is served by the establishment of truth and reconciliation commissions than exercises of this sort. Furthermore, the promise of amnesty would promote openness on the part of those involved. These issues and others were discussed at a UBC workshop co-sponsored by the Centre for Southeast Asia Research of IAR and the Liu Institute ion 2006. My view and that of my co-presenter Robert Adamson was that the two approaches were not mutually exclusive, and that the granting of amnesty might be seen as a promise of immunity, allowing perpetrators to proceed with impunity. The post-amnesty history of Charles Taylor was to bear this out amply: once safely in exile, Taylor would continue to plot and plan. Furthermore, it was hardly conducive to the ends of justice for a people to see someone going to jail for, say, housebreaking, while a war criminal was merely escorted to the airport and put on a plane.

There was also the view that, in the case of Cambodia, so much time had passed: who would be interested? Writing from Bangkok, on the day after sentence for Duch was pronounced, it would appear from the local media that the answer is "many". Those who expressed satisfaction with the sentence expressed the hope that this would bring an end to their continued suffering - "closure", as it is often described. But those unhappy with the result suggest exactly the opposite, that justice has not been done, and that the enormity of his crimes meant that Duch had forfeited the right to live with his fellow human beings for the rest of his days. His plea of superior orders, his conversion to Christianity, his acknowledgement of his deeds, his plea for forgiveness: none of this mattered at all. Duch astonished and infuriated many at the end of his trial by demanding to be acquitted, as if acknowledgement of fault and atonement were enough.

In This Issue

Burma: The Longest War
Brent Sutherland

Contributing editor Brent Sutherland assesses the political climate in Burma.

Portraying Socrates: Plato's Artistic Genius in the Apology
Steve Wexler

UBC law professor Steve Wexler writes on Plato's Apology.

Literary Voices
Literary Contributions from Cindy Goldberg and Oritsegbemi Emmanuel Jakpa

Literary selections from an international cast of writers.

An African Odyssey
IZ Editor Aweis Issa & Kate Curry

A Photo Journal from Aweis Issa and Kate Curry on their recent trip to Africa

IZ's Commitment to Somalia
Aweis Issa

Somali citizen Aweis Issa writes about the situation on the ground in Somalia.

The Cambodian Chamber proceeds on the view that the mere passage of time, though it may see the death of witnesses and the destruction of evidence, cannot in and of itself be a reason for taking no action in cases of this sort. This brings to mind Stevenson's minatory admonition in Dr. Jekyll and Mr Hyde: "In the Law of God there is no Statute of Limitations". There were some insurmountable reasons for the delay: the Vietnamese occupation of Cambodia for more than a decade following the overthrow of the Khmer Rouge in 1978/79, the few years of the UN's Transitional Authority, the subsequent coalition government, then the coup by Hun Sen which deposed joint Prime Minister Norodin Ranarridh. On the other hand it should not be forgotten that Duch was not in hiding when he was discovered, living openly, by a British journalist. It passes belief that some in government did not know exactly where he was. This brings us back to the suspicion that some war crimes trials will indeed disclose evidence that certain individuals in positions of power would rather suppress.

Indeed, the history of the Khmer Rouge is little short of extraordinary. They took power in 1975, the year that marked both the end of South Viet Nam and the communist victory in neighbouring Laos. Patrons of China, the historical enemy of Viet Nam, their brutal rule went unchecked because the world had wearied of the former Indochina and everything that pertained to it. It was only after months of their rule that their leader, Saloth Sar (known to history as Pol Pot, "Brother No. 1") announced that Cambodia was now a communist state and that he was head of its government. This was a man the world had heard next to nothing about. Months of border tensions and Pol Pot's insane dream of restoring the ancient lands of the Angkor kingdom at the expense of all Cambodia's neighbours led to the Vietnamese invasion of 1978, and the fall of the government in early 1979.

The Khmer Rouge then fought a guerrilla war against the occupying Vietnamese, and there are those such as the Australian journalist John Pilger who maintain that they received support from some western countries (Pilger identifies the United States here) on the grounds that any enemy of Viet Nam was a friend. The KR retained Cambodia's seat at the United Nations. The group was allowed to contest the UN-sponsored elections in 1993, but in the event boycotted them, possibly aware of a potentially devastating showing. They were still a force to be reckoned with in the early years of the democratic government. The movement fell apart through in-fighting in 1996. Internal dissent reached the point where Pol Pot was himself put on trial by his former associates in 1996, and died two years later in circumstances which have never been fully explained. It is far from certain, however, whether the factors that drove young and idealistic Khmers' into his orbit in the early 1970s have disappeared from the Cambodian scene.

Be all this as it may, surely it is significant that Cambodia has "brought it off", that one of the most notorious and brutal members of a regime, the name of which is synonymous with the genocide of its own people, has finally faced justice. It is expected that the trials of Nuom Chea (Brother No. 2), Ieng Sary, brother-in-law of Pol Pot and Brother No. 3, former foreign minister Khieu Samphan (Brother no. 5) and his wife Ieng Thirith - all arrested as recently as 2007 - will begin later this year. But many are now asking: nearly two million died, and at the end of the day we have had five trials??

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