Cambodian War Crimes Tribunal: First Trial Begins

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By Katherine Iliopoulos
 
On January 7, 1979 – just over 30 years ago – Vietnamese forces entered Cambodia’s deserted capital after the collapse of the Khmer Rouge regime and came across a detention centre on a site known as Tuol Sleng. The troops, led to the former high school by the stench of rotting bodies, made a gruesome discovery. The corpses of prisoners that had been killed only days or weeks prior were still shackled to iron beds. Chickens were pecking at bloated corpses lying on the ground. Five children were found alive, hiding in a pile of discarded prisoners’ clothing.

Tuol Sleng, meaning ‘Hill of the Poisonous Trees’ in Khmer, was the headquarters of the Communist Party of Kampuchea (CPK) Special Branch of the secret police (Santebal) or “Office S21” (S21).

Kaing Guek Eav, otherwise known as ‘Duch,’ was second-in-charge of the interrogation unit and later admitted to prosecutors that he personally oversaw the interrogation of the most important prisoners, and that he was ultimately responsible for S21. Over 12,380 detainees were executed at the prison.

On July 31, 2007, Duch was charged with crimes against humanity and grave breaches of the Geneva Conventions – but not genocide – and placed in detention at the Extraordinary Chambers in the Courts of Cambodia (ECCC). His trial begins on February 17, 2009, which will start with an Initial Hearing to be followed at a later date by a trial on the substance.

Duch’s trial will mark the first attempt to enforce accountability for one of the most notorious mass atrocities of the last century: the Khmer Rouge’s campaign of torture and execution that led to the deaths of an estimated 1.7 million Cambodians, nearly a quarter of the nation’s population at the time.

On 17 April 1975, the army of the Communist Party of Kampuchea (CPK) and the Kampuchea People’s National Liberation Armed Forces (KPNLAF) (which was later renamed the Revolutionary Army of Kampuchea (RAK)), entered Phnom Penh and seized power over what was then known as Democratic Kampuchea (DK). Almost immediately afterwards, an international armed conflict began between DK and Vietnam, which reached its peak by the end of 1977 and drew to a close in January 1979.

S21 was established in response to the ‘Cambodian revolution’ and the war against Vietnam. Duch, a former mathematics teacher, was part of the planning behind the establishment of S21. It was the most notorious prison in a network that targeted Cambodia’s educated elite as part of a movement to create a classless, agrarian society free of foreign influence starting at Year Zero. According to prosecutors, S21 had the purpose of implementing “the Party political line regarding the enemy” according to which prisoners had to be killed categorically, and without question. Every prisoner who arrived at S21 was destined for execution.

From late 1975 and into 1976, S21 was significantly involved in the imprisonment, re-education, torture and execution of persons linked to the ousted Khmer Republic regime. One overriding purpose of S21 was to extract confessions from prisoners in order to uncover further networks of possible traitors by using several forms of torture. According to Duch, only four methods of torture were allowed: beating, electrocution, placing a plastic bag over the head and pouring water into the nose. The instruments of torture – vats of water in which the prisoners were drowned, axe handles and pincers to tear out their fingernails and toenails – were still scattered in the interrogation rooms when the abandoned prison was discovered on January 7, 1979. Generally, prisoners were killed shortly after completing their confessions.

One of the main witnesses at Duch’s trial will be Vann Nath, one of only seven survivors of the S21 prison. Nath is one of Cambodia’s most prominent artists, and it was this skill that kept him alive at S21. Duch selected him to paint portraits and make sculptures of Pol Pot. Nath chronicled his experiences in his book A Cambodian Prison Portrait: One Year in the Khmer Rouge’s S-21. “I could hear screams of pain from every corner of the prison,” he wrote. “I felt a twinge of pain in my body at each scream. I could hear the guards demanding the truth, the acts of betrayal, the names of collaborators.”

Norng Chan Phal was just 8 years old when the Khmer Rouge brought him along with his brother and mother – who was later killed – to Tuol Sleng after his father, a Khmer Rouge cadre, had been imprisoned there. The first known child survivor of Tuol Sleng, Norng Chan Phal is expected to testify at Duch’s trial. Phal and his younger brother were helped to leave the prison by Vietnamese military cameraman Ho Van Tay after Vietnamese forces captured Phnom Penh. Archival footage taken by Tay, the first outsider to document the horrors of S21, will constitute some of the key pieces of evidence at the trial.

The indictment charges Duch with crimes against humanity; it lists imprisonment, enslavement, torture, rape, murder, extermination, persecution and other inhumane acts as crimes committed as part of a widespread or systematic attack directed against a civilian population on political grounds, and, due to his position of authority at S21, committed with Duch’s knowledge of the attack in accordance with the definition of ‘crimes against humanity’ according to customary international law in 1975.

Genocide was not charged in the indictment presumably because the victims were not targeted on national, racial or religious grounds. Political groups are not included in the definition of genocide as it appears in the Genocide Convention of 1948.

Additional charges alleging grave breaches of the Geneva Conventions are also listed. Although many of the crimes listed also constitute national crimes, the indictment states that “these acts must be accorded the highest available legal classification.” Accordingly, Duch only faces charges under international – and not Cambodian – law.

The tribunal is a mixed Cambodian-international court, with a majority of Cambodian judges and prosecutors. The process of establishing it has been long marked by concerns about the tribunal’s ability to be impartial. Amid serious allegations of corruption and political interference, Human Rights Watch said on February 14 that the ECCC – which consists of a majority of Cambodian judges – should resist political interference and meet international fair trial standards.

In December 2008, the Cambodian co-prosecutor Chea Leang opposed a move by the co-prosecutor Robert Petit to bring charges against six more former Khmer Rouge members, citing the lack of resources available to the tribunal, the nation’s “past instability” and the “need for national reconciliation,” reasons that appear to reflect the Cambodian government’s position on the trials. Throughout negotiations with the United Nations to establish the ECCC, Prime Minister Hun Sen and his government adopted tactics of delay and obstruction – set out in detail by former UN Secretary-General Kofi Annan in a report to the UN General Assembly – and has reportedly said that trying “four or five people” would be enough.

Yet the prosecution of additional suspects is critical to the ability of the tribunal to give the public a realistic picture of responsibility for a broad range of Khmer Rouge atrocities, according to the Open Society Justice Initiative. “Further prosecutions are also necessary to demonstrate that the court is truly independent of political pressure to limit prosecutions to only the most notorious few.”

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.

Related Links:

Indictment (PDF)
Extraordinary Chambers in the Courts of Cambodia

We shall all be at this trial
by Francois Bizot
International Herald Tribune, February 16, 2009

Khmer Rouge prisoner torturers finally put on trial
by Andrew Buncombe
The Independent, February 16, 2009

Cambodia: First Trial to Test Tribunal’s Credibility
Human Rights Watch
February 14, 2009

Report of Former UN Secretary-General Kofi Annan on Khmer Rouge trials (PDF)
March 31, 2003

Cambodia Tribunal Monitor

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