Justice of a kind

Nuon Chea wants nothing to do with it.

The second, and possibly last, trial starts amid controversy and acrimony

Jun 30th 2011 | PHNOM PENH
The Economist

THE old and withered man, adorned in what looked like an oversize tea-cosy and sunglasses, seemed an unlikely mass-murderer when he appeared in court for the first time on June 27th. That is often the way with people brought to justice long after their alleged crimes were committed. In this instance, the accused was Nuon Chea, second in seniority only to Pol Pot as a former leader of the Khmer Rouge, the Maoist movement responsible for the deaths of as many as 2m people after it seized power in Cambodia in 1975 and attempted to implement its crazed notions of Utopia. However eccentric Mr Nuon Chea looked in court, age and captivity have not softened his resolve. He remained defiant throughout, refusing to recognise the legitimacy of the court and walking out after only a brief attendance. His attire, as it turned out, was well chosen—the tuque to stave off the chill from the air-conditioning, the dark glasses to shade him from the glare of the lights.

His day in court saw the beginning of the second trial of the Extraordinary Chambers in the Courts of Cambodia (to give the tribunal prosecuting former members of the Khmer Rouge its full title). The trial will surely be a long and controversial one. One prosecutor working for the UN-backed court calls it the most “complex” since the Nuremberg hearings at the end of the second world war.

The first trial, which closed last year, was comparatively straightforward. The sole accused, Kaing Guek Eav, better known as “Duch”, was contrite and pleaded guilty to charges of crimes against humanity and war crimes, committed while he ran Tuol Sleng, a notorious prison at a former school in the middle of Phnom Penh, the capital, to which 17,000 of the regime’s victims were taken to be tortured and killed—only seven came out alive.

This time four defendants are on trial. All reject the charges against them and all bar one, Khieu Samphan, refuse to co-operate with the court. All were senior cadres of the Khmer Rouge. Ieng Sary was the regime’s foreign minister; his wife, Ieng Thirith, served as social affairs minister; and Mr Khieu Samphan was the former head of state. Mr Nuon Chea says that the Khmer Rouge was only defending Cambodia against foreign forces. An imperialistic United States and an expansionist Vietnam were the main culprits, in his view, and caused most of the bloodshed. Lawyers for Mr Ieng Sary argue simply that he has already received a royal pardon.

Prosecutors face the daunting task of linking them directly to specific killings. This week’s proceedings were only the start of the legal skirmishing; substantive hearings are not expected to begin until September. Since all the accused are in their late 70s or early 80s, even if convicted they are unlikely to serve very much of their sentence—that is, assuming they outlive the trial.

Nonetheless, supporters of the court passionately believe that the trial marks a profound moment in modern Cambodian history. Pol Pot himself died in 1998, so these four are the most senior members of the regime left alive. It is therefore the only chance for the leaders to be held accountable for the mass-killings that occurred during nearly four years of Khmer Rouge rule. One human-rights activist, Theary Seng, acknowledged outside the court on June 27th that its work amounted to “only selective and symbolic justice”. There were “extreme limitations” to the process, she said; but the goal should be the highest quality of justice within them.

However, what makes this trial especially charged is the knowledge that there may be no more. Future possible cases have become mired in the politics of the court, and in Cambodian politics more generally. The prime minister, Hun Sen, is clear that he wants this trial to be the last. He argues that more prosecutions could spark civil war or, slightly less spuriously, that they might undermine hard-won efforts at reconciliation.

Critics allege that the government has ulterior motives. Many high-ranking people in government and business had ties to the Khmer Rouge, which might be another reason why the government has tried to limit the scope of the court’s investigations. Mr Hun Sen himself was a young Khmer Rouge military commander before defecting in 1977.

Either way, because the court is a hybrid, composed of both foreign and Cambodian lawyers, it cannot escape this domestic political context and exercise real independence. Such politicisation has led to many ruptures during the tribunal’s life and, recently, to resignations. In April the bench ruled that the next case, known as 003, should be dropped altogether. But an international prosecutor later complained that the judges had not even questioned the suspects, let alone visited the scenes of the alleged crimes. For now, case 002 proceeds as planned, even if there will never be a successor.