I am currently working around the Khmer Rouge Tribunal (formally
the ECCC) and the most frequent questions I get are, “do you think
it's useful?” and “Isn't it a waste of money?” These are issues
that surround all of the international tribunals, from the
International Criminal Court (ICC) to the hybrid and ad hoc tribunals
for the former Yugoslavia, Rwanda, East Timor, Sierra Leone, Lebanon,
Cambodia, and now Bangladesh. Particularly, as in Cambodia, when the
tribunal convenes so long after the crimes alleged (30+ years) and
the Accused are so old (79-85-years-old), many people argue that we
just need to let the country move on, and trust that the perpetrators
will die soon and will not commit any more crimes before they die.
Also, think of all of the mines you could remove with $150 million.
(That's about how much the ECCC has spent since it began
investigations in 2006 until February 2012).
However, proponents of the courts argue that, by holding the
leaders accountable, we can set an example of the rule of law in
countries that have lost ROL, and we may deter leaders in the future
from committing these crimes.
The ICC just issued it's first ruling, after 10 years in
existence. (Thomas Lubanga found guilty of recruiting child soliders.
Great summaries here and here.) The BBC reports that the Court has spent $900bn to date. In fairness, it's not like
the Court spent $900bn on one case. The ICC has issued 15
indictments, and so is working on 15 cases, as well as those
additional cases that the Prosecuter is investigating. Furthermore,
unlike the average domestic court, the ICC is investigating crimes
that happened all over the world (in theory. In actuality, all of the
current ICC cases are for alleged crimes in African countries.) and
that investigation is complex and costly. Still, the court is
hideously expensive.
From what I see in Phnom Penh and Cambodia as a whole, the trial
is worthwhile. Every Cambodian who I meet and talk to about my work
supports the trial, and only want to know more about it, and what the
crimes are, and why it's taking so long, and what punishments could
be dealt out. True, this trial will not provide closure for all
Cambodians, and many may be disappointed with the process or the
sentences. But the reality is that no punishment can balance what the
Accused are alleged to have done. The value in the court is in
acknowledging that those crimes were done, certifying
them in a court of law, and holding the perpetrators accountable in a
more humane way than they treated their countrymen. It's about
setting an example of the rule of law, and opening the discussion of
what happened to help the country heal.
And that is working. I recently got back from a trip to the north
and Siem Reap (Angkor Wat) and several people cared enough to brave
my horrible Khmer to discuss the court and what it meant for the
country. These people said that, because of the Court, it is now
becoming ok to talk about what happened. The country has seen an
explosion of documentary films about the Accused in the past year.
(Including “Duch: the Master of the Forges of Hell”; “Enemies
of the People”; “S-21: The Khmer Rouge Death Machine”; "Facing Genocide." While
some of these were produced several years ago, they are only now
being released in Cambodia.) NGOs providing other means of processing
and finding healing are popping up everywhere.
Regular people are asking questions like “why is the Accused given an air-conditioned cell and three meals a day, while I don't have enough rice to feed my family?” Answer: fair trial rights and the right of the Accused to humane treatment. (See KMF "Facing Justice" Episode 8, 17:00 on for more televised discussions.)
Projects like the ECCC Handbook on Criminal Procedure
Project—which is annotating all of the ECCC rulings with their
precedents and ties to Cambodian and international law in order to
have a comprehensive precedent reference for students and
practitioners—and the Fair Trial Club—which trains young law
students, lawyers and NGO workers in the basics of fair trial
rights—are defining the legacy of the Court in bolstering ROL in
Cambodia.
People are talking about it, asking questions, and learning about
what a rule of law entails, and that is the lasting legacy of these
courts and what makes it all worthwhile.
