«SO WE WILL A POPULATION-BASED SURVEY ON ATTITUDES NEVER FORGET ABOUT SOCIAL RECONSTRUCTION AND THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA ...»
2. bACKGROUND The years of the Khmer Rouge regime from 1975 to 1979 mark one of the most horrific times in modern history. Nearly one quarter of the Cambodia population—a least 1.7 million people—perished as a result of the oppressive polices imposed by Khmer Rouge leader Pol Pot and his cronies. 9 Professionals and educated persons, especially teachers, doctors, police, and former government officials—viewed by the Khmer Rouge as objects of Western decadence—were singled out for persecution. Throughout Cambodia, anyone who questioned the supremacy of the Khmer Rouge or committed the slightest infraction could be summarily executed or sent to one of a dozen or more prison camps where torture was routine.
Pol Pot (Saloth Sar) was born into a well-to-do Cambodian farming family in 1925, in an area then part of French Indochina. At the age of twenty-four, he traveled to Paris to study radio electricity and became heavily influenced by Marxism and Maoism. Pol Pot returned to Cambodia in 1953 and subsequently became the leader of the Cambodian communist movement 10 popularly known as Khmer Rouge. After the anti-left campaign led by Sihanouk put him at risk of arrest, Pol Pot retreated into the jungle where he started to establish clandestine guerilla bases. By 1970, a full-fledged civil war descended on the country.11 On April 17, 1975, the Khmer Rouge troops seized control of the capital, Phnom Penh, marking the beginning of 3 years, 8 months and 20 days of an attempt to transform Cambodian society into an agrarian utopia.
Pol Pot’s first action was to force the population out of the cities and towns and into the countryside.
He and his top leaders established a society based on agriculture and total collectivism. The Angkar or “Organization,” as the revolutionary movement named itself, was the sole governing power and the owner of all means of production and private property. Cambodia was renamed Democratic Kampuchea (DK).
9 See Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge 1975-1979 (New Haven: Yale University Press, 2002).
10 Stephen J. Morris, “Vietnam and Cambodian Communism,” in Khmer Rouge History & Authors: From Stalin to Pol Pot Towards a Description of the Pol Pot Regime (Phnom Penh, Cambodia: ADHOC and Center for Social Development, January 2007), 2.
11 See Dawn Kelly Askin, “Prosecuting Senior Leaders of Khmer Rouge Crimes,” in Justice Initiative (New York: Open Society Institute, Spring 2006), 72–73.
13 SO WE WILL NEVER FORGET Cambodia was effectively sealed off from the outside world.12 The Khmer Rouge expelled all foreigners, closed embassies, banned the use of foreign languages, and refused any foreign economic or medical assistance.13 Newspapers and television stations were shut down, radios and bicycles confiscated, currency and the postal system were abolished and telephone usage curtailed.14 All businesses were shuttered, religion banned, education halted, health care eliminated, and parental authority revoked.15 Angkar’s polices were largely uniform across the country with some regional16 and individual variations. Officially, there was no class but in practice all Cambodians were labeled as either “Old or Base People” or “New People.” Old People were those who resided in areas controlled by the Khmer Rouge prior to 1975, while New People were mostly city dwellers, including peasants in the cities at the time of the evacuation.17 People from the city had been exposed to foreign influences and were considered politically unreliable. Most of them were put to work in forced labor camps throughout the country. Millions of Cambodians were forced into slave labor where they began dying from overwork, disease, and malnutrition.
To enforce their drastic changes, the Khmer Rouge created and maintained a climate of constant terror, violence, and secrecy. They also instituted a vast prison system across the country.18 The most infamous prison was Tuol Sleng in Phnom Penh where thousands of people were tortured and later executed. Broad cohorts of the population were marked for extermination. Educated urban elite, soldiers from previous regimes, Buddhist monks, Cambodians returning from overseas and ethnic populations such as Chams, Khmer of Vietnamese origin, and Chinese were eliminated. As the leaders’ obsession with potential infiltration and treason increased, the regime conducted major purges among their own ranks, torturing and killing countless of innocent victims.19 After several years of border wars, the Vietnamese invaded Cambodia. On January 7, 1979, the Pol Pot regime collapsed, overthrown by the Vietnamese. More than 300,000 Cambodians fled to Thailand or Vietnam. Pol Pot and some 30,000 to 50,000 supporters, including most of its army, fled to remote areas in north and west Cambodia.20 12 David P. Chandler, A History of Cambodia (Boulder, Colorado: Westview Press, 1983), 209–11; Evan Gottesman, Cambodia After the Khmer Rouge. Inside the Politics of Nation Building (New Haven: Yale University, 2003), 24–25.
13 Library of Congress, Cambodia: A Country Study, Washington D.C.: GPO for the Library of Congress, 1990; Columbia Encyclopedia, 6th ED., 2005; Gottesman, Cambodia After the Khmer Rouge, 25.
15 Library of Congress.
16 Chandler, A History of Cambodia, 211.
17 Michael Vickery, Cambodia 1975– 1982 (Boston MA: South End Press, 1984), 81–82.
18 Henri Locard, “The Khmer Rouge Prison System,” in Khmer Rouge History & Authors: From Stalin to Pol Pot - Towards a Description of the Pol Pot Regime (Phnom Penh, Cambodia: ADHOC and Center for Social Development, January 2007).
19 Chandler, A History of Cambodia, 213; 218–19.
20 Ibid., 192.
A Population-Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers In the Courts of Cambodia The Vietnamese installed a pro-Vietnamese government, the People’s Republic of Kampuchea (PRK) led by Heng Samrin. Cambodia entered a period of reconstruction hindered by a resistance movement at the Thai border21 and the isolation of Cambodia by the international community.
In September 1989, under international pressures, the Vietnamese finally withdrew their troops. 22 After a decade of negotiations, in 1991, all factions (government and resistance, including the Khmer Rouge) signed the Paris Peace Agreement. The signing of this accord marked the beginning of the operations of the United Nations Transitional Authority in Cambodia (UNTAC). The mission led to an election in 1993 and repatriation of more than 350,000 Cambodians from Thai refugee camps. 23 However, it did not succeed in disarming the factions or rallying the Khmer Rouge who refused to participate in the elections. The Khmer Rouge continued their resistance and guerilla warfare until 1998 when the revolutionary movement collapsed.
LEGAL AND JUDICIAL SYSTEMBased on the French model of “civil law,” the Cambodian judicial system was disrupted during the civil war and was nonexistent during the Khmer Rouge regime. Today, despite some gains and improvements, the judiciary system has been criticized for its lack of independence, incompetence, and corruption. 24 The situation is exacerbated by a confused legal framework and lack of resources.
In rural areas, people often prefer to solve their problems within their community. 25 People take matters into their own hands, or use a third party, or conciliator, as mediator. In general, people try to avoid courts arguing that they are costly and involve transportation, accommodations, and bribes to civil servants and judges. People trust the law but not the officers of the court.26 Rooted in a “culture of impunity” and patronage, the major problems of the legal and judiciary system are corruption and absence of independence. 27 The Ministry of Justice often provides instructions to judges on how to interpret the laws; the Executive pressures the court to overturn their rulings;28 21 Three factions allied to fight the Vietnamese: Norodom Sihanouk’s United National Front for an Independent, Neutral, Peaceful and Cooperative Cambodia (FUNCINPEC), Son Sann’s Kampuchean People’s National Liberation Front (KPNLF), and the National Army of Democratic Kampuchea (the Khmer Rouge army) represented by Khieu Samphan.
22 Raoul M. Jennar, The Cambodian Constitutions (1953-1993) (Bangkok, Thailand: White Lotus, 1995), 111.
23 Raoul M. Jennar, Les Cles Du Cambodge (Excerpts), available at http://vorasith.online.fr/cambodge/livres/cles.htm.
24 Center for International Development & Conflict Management, Polity IV Country Report 2003: Cambodia, available at http://www.cidcm.umd.edu/inscr/polity/report.htm.
25 For additional information on local conflicts management, see Fabienne Luco, “Between a Tiger and a Crocodile” (Phnom Penh, Cambodia: United Nations Educational, Scientific and Cultural Organization (UNESCO), September 2002), 97–116.
27 Peter Leuprecht, “Continuing Patterns of Impunity in Cambodia” (Phnom Penh, Cambodia: United Nations Cambodia Office of the High Commissioner for Human Rights, October 2005), 26; The Court Watch Project, “Annual Report” (Phnom Penh: Center for Social Development, March 2008), 6.
28 “National Integrity Systems. Country Study Report” (Cambodia: Transparency International, 2006), 23.
The judiciary and legal system is considered one of the most corrupt and least trustworthy institutions in Cambodia. 31 In 2003, a survey conducted by the Center for Advanced Study showed that Cambodians have little or no faith in the Cambodian courts or its officials.32 The absence of rules on conflict of interest, on requirements to disclose assets or gifts, and on protection of whistleblowers heightens the possibilities of corruption.33 The capacity of the judicial system is clearly lacking.34 In 2007, Cambodia had only 142 judges, 72 prosecutors, and 601 court clerks for 23 courts including the Appeals and Supreme Courts. Officers of the court are poorly trained. The budget for the courts is only a small fraction of the national budget 35 leading to understaffing and a lack of space and basic necessities. In 2003, judicial remuneration was the lowest in Southeast Asia and the second most bureaucratically embedded judiciary in the region.36
THE EXTRAORDINARY CHAMbERS IN THE COURTS OF CAMbODIAThe ECCC, also known as the Khmer Rouge Tribunal, began its work on July 1, 2006, after 10 years of negotiations between the United Nations and the Royal Government of Cambodia, a process that involved multiple actors and several states. 37 Its jurisdiction covers senior leaders and those most responsible for crimes and serious violations committed during the period from 17 April 1975 to 6 January 1979. The subject matter jurisdiction of the ECCC includes genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, and other crimes.38 29 Ibid., 24; and The Asia Foundation, “Judicial Independence Overview and Country-Level Summaries,”15, available at http://www.adb.org/Documents/Events/2003/RETA5987/Final_Overview_Report.pdf.
30 Leuprecht, “Continuing Patterns of Impunity in Cambodia,” 26.
31 “National Integrity Systems. Country Study Report,”16.
32 Leuprecht, “Continuing Patterns of Impunity in Cambodia,” 26.; Tara Urs, “Imagining Locally-Motivated Accountability for Mass Atrocities: Voices from Cambodia,” in SUR (Sao Paulo, Brazil: Human Rights University Network, 2007), 70.
33 “National Integrity Systems. Country Study Report,” 24.
34 Urs, “Imagining Locally-Motivated Accountability for Mass Atrocities: Voices from Cambodia,” 64.
35 The Court Watch Project, “Annual Report,”7 36 The Asia Foundation, “Judicial Independence Overview and Country-Level Summaries,”19, 24.
37 For details on the negotiations see Craig Etcheson, “A “Fair and Public Trial”: A Political History of the Extraordinary Chambers,” in The Extraordinary Chambers, ed. Open Society Justice Initiative (New York: Open Society Institute, Spring 2006).
38 Genocide is defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; crimes against humanity are defined in the 1998 Rome Statute of the International Criminal Court, and grave breaches of the 1949 Geneva Conventions and other crimes are defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers promulgated on 10 August 2001.
A Population-Based Survey on Attitudes about Social Reconstruction and the Extraordinary Chambers In the Courts of Cambodia Developed as a hybrid court within the Cambodian Court System, the ECCC is a mix of Cambodian and international judges with a majority of Cambodians. The court includes three Chambers: the Pre-Trial Chamber (5 judges), the Trial Chamber (5 judges), and the Supreme Court Chamber (7 judges).
The Pre-Trial Chamber convenes to settle disagreements between the co-prosecutors, between the co-investigating judges, and between the co-prosecutors and the co-investigating judges. It also hears Pre-Trial appeals. Trial Chamber’s decisions can be appealed at the Supreme Court Chamber. The Supreme Court Chamber’s rulings are final. The ECCC applies both Cambodian and international law.
The ECCC’s judicial offices are led by two co-prosecutors and two co-investigating judges, each pair including one Cambodian national and one international. All judges and judicial officers are appointed by the Supreme Council of the Magistracy of Cambodia. However international appointments are taken from a list provided by the UN Secretary General.39 Following the hybrid pattern, the office of administration and major sections such as budget and finance, personnel, security and safety, and public affairs also have a Cambodian director and an international deputy.
Modeled after the Cambodian national court system, the ECCC operates in a civil law system. As such, the role of the co-prosecutors is to conduct a preliminary investigation and send factual allegations constituting crimes and suspects to the co-investigating judges. This is the introductory submission.
The co-investigating judges examine only the allegations made in the initial submission unless the co-prosecutors submit additional facts through supplementary submissions. The co-investigating judges have the power to arrest and charge suspects, if deemed necessary. Following notification that the investigation is closing, the co-prosecutors make a final submission of their charges. The final submission is followed by the co-investigating judges’ closing order which can be appealed by the co-prosecutors.40 Once the suspect has been charged and brought into custody, the Defense Support Section’s main role is to ensure effective representation of the charged person. In doing so, it provides a list of lawyers to defendants, gives legal and administrative support to chosen lawyers, and pays legal fees. Defense Support Section also acts as a voice for the defense, and liaises with nongovernmental organizations.41 In addition to being called as witnesses, victims can participate in the court’s proceedings as a complainant or a civil party by submitting a Victim Participation form. The Victims Unit is the focal point for victims wishing to participate in the ECCC’s proceedings. It acts as the intermediary receiving and processing all forms and transmitting them to the appropriate office. Co-prosecutors are responsible for considering the complaints whereas the co-investigating judges or the Trial Chamber, as appropriate, assess civil party applications.
39 The information in this paragraph is drawn from UNAKRT website, available at http://www.unakrtonline.org/ 01_home.htm.
40 For more details on roles and procedures, see “Internal Rules (rev. 2),” Cambodia: Extraordinary Chambers in the Courts of Cambodia, 5 September 2008, available at http://www.eccc.gov.kh/english/cabinet/fileUpload/88/IR_Revision2_ 05-01-08_En.pdf.
41 The information on the Defense Support Section is drawn from UNAKRT website, available at http://www.unakrtonline.