Government Obstruction and Non-Cooperation Sabotage Justice
(New York) – The death of Ieng Sary, on trial before the Extraordinary Chambers in the Courts of Cambodia after indictment for genocide, crimes against humanity, and war crimes, means that another senior leader of the Khmer Rouge has not been held accountable for his crimes. Ieng Sary, the foreign minister of the Khmer Rouge regime that ruled Cambodia from 1975 to 1979, died in a Phnom Penh hospital on March 14, 2013.
“Cambodian Prime Minister Hun Sen asked the United Nations in 1997 for assistance in holding Khmer Rouge leaders accountable – and since then has done everything in his power to stymie the tribunal’s work,” said Brad Adams, Asia director at Human Rights Watch. “Hun Sen bears primary responsibility for denying justice to the victims of Ieng Sary’s atrocities.”
Khmer Rouge rule under the leadership of Pol Pot, Nuon Chea, Ieng Sary, Khieu Samphan, and others resulted in the deaths of at least 1.7 million Cambodians, about one-quarter of the population. Pol Pot, known as Brother Number One, died in 1998 after years of protection from Thailand and China.
Ieng Sary’s responsibility for the regime’s crimes derived from his position as a Permanent Member of the Khmer Rouge Standing Committee, which formulated policy and oversaw its implementation nation-wide. As Khmer Rouge minister of foreign affairs, he also directly oversaw the purge of ministry officials, sending many accused of treason for torture and execution. He repeatedly endorsed the Khmer Rouge policy that he helped formulate of “smashing” to death all those deemed to be enemies of the radical Khmer Rouge revolution, making baseless claims that those executed were agents of the US Central Intelligence Agency, Soviet KGB, or the Vietnamese Communists. He blamed those who were executed for the policies that brought about mass starvation and death from disease. He also defended the Khmer Rouge’s abusive policies in speeches and communications to the UN.
“It is a sad indictment of the Khmer Rouge tribunal that after more than six years, only one person has been convicted and only two others, Nuon Chea and Khieu Samphan, remain on trial for Khmer Rouge-era crimes,” Adams said. “Cambodians now face the prospect that only three people will be held legally accountable for the destruction of their country.”
The Tribunal’s Genesis
Negotiations for the establishment of the Khmer Rouge Tribunal began in 1997 when Hun Sen wrote to then-UN Secretary-General Kofi Annan asking for help in establishing a courtsimilar to the International Criminal Courts for the former Yugoslavia and Rwanda. However, after a UN Group of Experts provided detailed suggestions about how this could be done in order to ensure judicial independence from Cambodia’s politically controlled judiciary, Hun Sen insisted that trials could only be conducted by Cambodian courts. He also rejected a UN proposal for an independent, international prosecutor.
The slow pace of establishing the Tribunal reflected a longstanding policy articulated by Hun Sen during internal discussions with other former Khmer Rouge members at the highest levels in his ruling Cambodian People’s Party. For example, Hun Sen explained in a February 2000 Central Committee meeting of the party that stalling would be his main tactic to assert control over the UN and the tribunal. This allowed the government to play what Cambodian analyst Lao Mong Hay rightly predicted in 2000 would be a long-term “cat and mouse game” to “delay to wear out the patience of the UN.”
In 2002 the UN announced that it was pulling out of negotiations with Hun Sen to create a tribunal. Annan concluded that “interference by the executive with the independence of the judiciary” in Cambodia meant that “established international standards of justice, fairness and due process might therefore not be ensured.” The UN was fully aware that the government would use delaying tactics in negotiations to obtain a court it could control. In February 2002, Hans Corell, the chief UN negotiator, warned that foot-dragging and convoluted judicial decision-making procedures meant the Tribunal would be a “monster court … unable to produce a final judgment” since it was likely that key figures among the accused would die before that happened, given their already advanced age. He also foresaw that this would make it inevitable that the Tribunal would be “extremely costly.”
However, UN member states, led by the US, Japan, France, and Australia, forced the UN to resume negotiations. This led to an agreement to create the Tribunal with a majority of Hun Sen-appointed and controlled judges and a minority of judicial officers nominated by the UN secretary-general. Judges would make some decisions according to a complicated “super-majority” formula that recognized but sought to mitigate the inevitability of government interference in the court.
The UN’s concerns have been proven to be accurate, Human Rights Watch said. Government-installed Cambodian court personnel have obstructed investigations. The government has failed to require its members to provide evidence to the Tribunal’s judicial investigation and trial proceedings. Serious corruption allegations affecting the proceedings have never been adequately investigated.
Only one trial of the five people that Hun Sen allowed to be indicted has been completed: Kaing Guek Eav alias Duch, the chairman of the Khmer Rouge S21 Security Office in Phnom Penh known as Tuol Sleng, who confessed to overseeing mass murder and torture there and was convicted of crimes against humanity and war crimes and sentenced to life imprisonment in February 2012. Ieng Thirith, the wife of Ieng Sary and the former Khmer Rouge minister of social action, was ruled unfit for trial in November 2011 due to worsening dementia. She was subsequently released from detention under judicial supervision. Only former Khmer Rouge Deputy Communist Party Secretary Nuon Chea and Central Committee member Khieu Samphan remain on trial.
Meanwhile, Cambodian judges and prosecutors are continuing successfully to block the arrest and indictment of five additional suspects whom UN prosecutors have named as responsible for serious crimes during the Khmer Rouge period. Hun Sen has publicly called for no further trials. For instance, in a March 2009 speech he stated that if attempts were made to expand the number of suspects beyond those he wanted prosecuted, he would instead have the tribunal fail, even if this meant completion only of the trial of Duch and the death of the other four during subsequent proceedings. He also said if such efforts to expand the scope of prosecution persisted, he would “pray for the court to run out of money” as a result of donor country dissatisfaction, and would prefer the departure of the international prosecutor and international judges to trials of additional suspects.
“There are real questions about the purpose of continuing international UN involvement and donor support for the Khmer Rouge Tribunal,” Adams said. “Hun Sen has run circles around the UN and donors while successfully denying justice for the Cambodian people.”