A regime on trial

The second case in the Khmer Rouge Trials, popularly called Case 002, began at the end of November 2011. The trial of the top three of the Khmer Rouge leadership, which included the immediate coterie around Pol Pot, is currently under way.
The dynamics of the Hun Sen government’s close association with Vietnam are already exposing political divides in Cambodia. Hun Sen has assured Vietnemese leaders that the trials will highlight the true role played by Vietnam as a liberating force that ended the genocide of the Khmer Rouge, while those facing trial have blamed the Vietnamese for pushing Cambodia to the brink of genocide. As the case progresses the dichotomy faced by the tribunal has also come to the fore — the need to reconcile the realities of history with the legal processes that look to convict three accused who are in their 80s.
For the Extraordinary Chambers in the Courts of Cambodia (ECCC), this case will be a watershed. It will be one of the most important since the Nuremburg trials. In the context of crimes against humanity and genocide, the three accused are considered to be part of the clique that masterminded and crafted the Cambodian tragedy — through executions, disease and starvation.
The ECCC brings to trial the main masterminds who were in control in Cambodia during the Khmer Rouge years. Noun Chea, Ieng Sary and Khieu Samphan, all in their 80s, were the three closest allies to Brother No. 1, Pol Pot (the name by which Saloth Sar, the Cambodian Maoist revolutionary was better known). Noun Chea, who was called Brother No. 2 was the second in command, with Ieng Sary as the foreign minister and Khieu Samphan, who was the president of the Democratic Kampuchea regime.
The fourth in this group was Ieng Thirith, the wife of Ieng Sary and sister-in-law of Pol Pot, who was let off the trial last year, as she was diagnosed with dementia. So of the four only three will now face the trial.
The three Khmer Rouge leaders in their initial depositions to the ECCC have shown almost no sign of remorse or regret for their leading role in the worst atrocities that Cambodia faced. Interestingly, Khieu Samphan has already stated that the charges brought against him have been “monumentally biased”.
In their initial depositions the defendants claimed to have acted to protect their nation and save the country from disaster, reasoning that had they not reverted the country on the path of the Khmer Rouge’s agrarian socialist agenda, the country would have collapsed in the post-war period, following the US withdrawal from Vietnam; and that the measures they took were meant to protect the country from aggression and occupation by the Vietnamese.
During its reign from 1975 to 1979, the Khmer Rouge brought Cambodia back to Year Zero — a period when it reversed the country to an agrarian socialist model. The population was forced into communes and everyone had to take to agriculture. The erosion of the social structure was also simultaneously carried out with the family and the religious sangha breaking down. Anyone who resisted the system or was believed to be a threat were summarily executed.
Interestingly, Cambodia’s traditional rivals have always been Thailand and Vietnam, its two immediate neighbours. Throughout Cambodia’s ancient, medieval and modern histories, the animosity with these two neighbours has always been at the forefront of its national policies. Had it not been for the colonial period the modern state of Cambodia (Angkor Kingdom) would have been eroded by the territorial incursions of both Thailand and Vietnam. While the US war against Vietnam was at its height, Cambodia, Vietnam and Laos united to fight a common enemy, but after the US withdrawal, the hostilities, primarily between Cambodia and Vietnam, came to the surface again.
These hostilities were over several issues, including territorial disputes and even the differing versions of communism — the Vietnamese followed the Soviet system and the Cambodian Khmer Rouge followed the Chinese agrarian model. There was also the unresolved issue of several Vietnamese who had not left the eastern tracts of Cambodia where they had moved in the war years. Such unresolved issues deepened the divides between the Cambodians and the Vietnamese.
In the complex history of the period several groups supported the Khmer Rouge, and the current government itself is a faction that split from the Khmer Rouge and became closely associated with Vietnam. Given these political dynamics the trial has to be far more broad-based and accountable in its ambit.
The complex political factionalism which dominated the political arena during the Cambodian stalemate saw the complicity of all groups with the Khmer Rouge. If one looks at the alliance formations of political parties that opposed the Vietnamese presence in Cambodia through 1982 to 1990, both the royalist party and the republican party engaged with the Khmer Rouge. In fact even the United Nations itself was guilty of allowing the Khmer Rouge to continue occupying the UN seat during the years of the stalemate. Thus, the question of identifying the political autonomy of the Khmer Rouge becomes difficult.
For over two years the Cambodian government under Hun Sen was stridently opposed to the prosecution of former members of the Khmer Rouge on grounds that the tribunal would push Cambodia back on the brink of a civil war. This kind of political interference has affected the functioning of the tribunal, which any way is a hybrid model consisting of three Cambodian and two international judges. However, it remains within the domestic jurisdiction of the Cambodian state. So while it is backed by the UN, the tribunal in terms of its autonomy remains weak and incoherent to address the issue of crimes against humanity. As a result, most of the pre-trial hearings have ended in splits among the judges. Political interference from the Hun Sen dispensation makes the trial no less difficult, given that the ECCC functions within domestic laws in Cambodia. There is a question mark over the tribunal’s autonomy. The only verdict that has been delivered so far was in the case of the prison keeper, Duch, at the dreaded Tuol Sleng prison. The verdict was 19 years of imprisonment — this for an accused who stated categorically that he was merely carrying out the orders given by those who controlled Cambodia during the years when the Khmer Rouge was in power from April 1975 to December 1978.
The biggest challenge for the tribunal is that it needs to send a clear message without being seen as victimising the three currently facing trial. They are in their 80s and are in frail health. While a generation of Cambodians need the healing touch that the tribunal can provide, there is also a need for reconciliation, which would help the nation and its people move on.

The writer is an associate professor of Southeast Asian Studies at the School of International Studies, JNU