Justice at last

Former Khmer Rouge leader Nuon Chea at the ECCC in Phnom Penh, 16 November 2018 // ECCC

Better late than never.

These words, well-worn like the elderly defendants, came to mind as I observed the Khmer Rouge tribunal convict “Brother Number Two” Nuon Chea (92) and head of state Khieu Samphan (87) of genocide on Friday.

Two years before, I sat in the witness stand and watched as Nuon Chea sought to deflect blame and deny responsibility for a campaign of terror and mass murder that resulted in the death of almost a quarter of Cambodia’s 8 million inhabitants from 1975 to 1979.

What about the American bombings? he had chided me after I had testified for three and a half days on the charge of genocide. And didn’t Vietnam want to swallow Cambodia?

Friday put an end to those arguments. Yes, the US carpet-bombing of Cambodia constitutes war crimes. Yes, Vietnam meddled in Cambodian affairs and sought to topple the Khmer Rouge regime. And of course Cambodia was caught in geopolitical crosshairs.

But one and only one group deserves the primary blame in the end: the Khmer Rouge leaders. The judgment made this clear albeit in a legal monotone.

For almost two hours, the court’s president, Nil Nonn, read a summary of the verdict. He barely looked up as he methodically detailed the crimes: mass relocations, brutal work camps, an extensive security system and prison network, forced marriage and the targeting of Buddhist monks as well as Cambodia’s ethnic Chams and Vietnamese.

By the time Nil Nonn had finished, Nuon Chea had been excused to listen to the proceeding in a holding cell. Both defendants are in poor health and might die any day.

When the final disposition was delivered, Khieu Samphan was asked to stand in the dock. He had to be supported by two guards, one of whom had to hoist him up by the back of his trousers, as Nonn Nil declared the pair’s life sentence for war crimes, crimes against humanity, and the crime of crimes, genocide.

Afterwards, the defence lawyers cried foul — as they have done from the start. And it’s true. The defence lawyers have cause to complain. The process has been a slog, the court’s name partly stained. Political interference. Corruption. Unfair rulings. Truncated jurisdiction. And a legal process sometimes unsound.

Nuon Chea’s defence lawyer has called the court a farce, mere victor’s justice. And the KRT’s justice is indeed a partial one. Many people hoped for more.

After a dozen years and more than $300 million spent, the court has convicted just three people. The international community wanted a dozen arrests or, ideally, more. The Cambodian government insisted on just five. Two of the accused died, unjudged.

The hybrid court is based in Cambodia. The government holds most of the cards and can pull the plug at any time. It’s widely expected that it has already done so and that Friday’s conviction was the court’s last hurrah, the last act in what many people refer to as “the show”.

There’s more. The laundry list of court problems is long. One of the biggest elephants in the room is superpower culpability.

As Nuon Chea noted, the US bombed the Cambodian countryside during the Vietnam War, dropping more tonnage than it did on Japan during World War II.

China, in turn, provided the Khmer Rouge with support, aid and arms. Western powers did the same with resistance factions to help fuel a civil war that continued long after the Khmer Rouge were deposed in early January 1979.

Superpowers don’t want this dirty laundry aired. So when, after years of geopolitical dithering, they finally allowed the Extraordinary Chambers in the Courts of Cambodia (ECCC) to be set up, they limited its jurisdiction to include only the three years, eight months and twenty days the Khmer Rouge were in power.

Defence lawyers have repeatedly highlighted the hypocrisy. Their contention that the ECCC should have dealt with superpower crimes has merit.

So too do defence arguments that is impossible for the ECCC to reveal the truth and discern the causes of violence when only a snapshot of history is brought into view.

This laundry list of problems led some to ask if the trials have been worth the effort, question whether justice could ultimately be served.

But there is no such thing as perfect justice. It’s an ideal for which courts strive, falling more or less short. The ECCC fell quite short in this regard.

But the court has strengths as well. It has countered impunity. Nuon Chea and Khieu Samphan have been held accountable for their crimes.

The court has also created a vast historical record, one that can counter denial, provide a bedrock for education and add depth to public memory.

And, critically, the ECCC has rendered judgments subject to appeal and based on the rule of law. It did so again on Friday.

To the critics, then, I counter: better this justice than no justice.

 Alex Hinton is Distinguished Professor of Anthropology at Rutgers University and author of two books on the Khmer Rouge Tribunal, The Justice Facade: Trails of Transition in Cambodia (2018) and Man or Monster? The Trial of Khmer Rouge Torturer (2016)

November 15, 2018

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