Sunday 19 Aug 2018 | 10:10 | SYDNEY
Sunday 19 Aug 2018 | 10:10 | SYDNEY

Hun Sen wants to bury the past

14 September 2009 14:27

Although receiving minimal coverage in the international press, the Khmer Rouge Tribunal (formally the Extraordinary Chambers of the Courts of Cambodia) grinds on at a glacial pace since beginning the trial of its first defendant in February of this year, and having so far cost some US$150 million.

Allegations of corruption among the Tribunal's Cambodian personnel continue to be made and have not been convincingly refuted. Changes at the administrative level have been vigorously criticised by outsiders. And the fact that it is now over three years since the tribunal was formally established has raised justifiable fears about the denial of delayed justice.

Now Prime Minister Hun Sen has again entered the discussion as to whether the tribunal should try more than the existing five defendants currently indicted, sharply denouncing such a possibility as reflecting a wish by outside powers to see 'civil war' in Cambodia.

The first defendant to have come before the court is Kaing Guek Eav, better known as Duch, the chief of the notorious extermination centre at Tuol Sleng, designated by the Khmer Rouge as S-21, where at least 14,000 people were executed, often after months of torture.

There is no doubt about Duch's role, and guilt, as the head of S-21. He has repeatedly admitted to his part in most of what took place there. His lawyers have so far developed two defences: that he acted as he did because to have done otherwise would have led to his own death, and that he did not participate in the executions himself. So far, neither of these issues has been fully resolved.

Many would argue, as I do, that the tribunal, with its mishmash of laws and procedures, has consciously condemned itself to inevitably slow progress, so that while the case against Duch continues the other indicted individuals, all of whom are elderly and in poor health, are not being brought before the tribunal.

And these four men and one woman held much more senior positions than Duch within the Khmer Rouge. They are Khieu Samphan, the Chief of State; Nuon Chea, known as Brother Number Two and the regime's chief ideologue; Ieng Sary, the Khmer Rouge's Foreign Minister; and Khieu (or Ieng) Thirith, former Khmer Rouge Minister for Social Affairs, who is Ieng Sary's wife and the late Pol Pot's sister.

While the Duch case continues, a dispute has emerged between the international personnel of the UN-backed tribunal and the Cambodian Government. To understand what has happened, some account of background developments is necessary.

Under the terms of the agreements between the UN and the Cambodian Government establishing the tribunal, two distinctive features were accepted by the cooperating sides. First, it was agreed that there should be both Cambodian and international judges and prosecutors. And second, a 'supermajority' of judges was enshrined in the regulations of the tribunal. Given the fact that there would always be more Cambodian judges in each of the tribunal's chambers, this means that provided the Cambodian judges vote together they can never be overruled by their counterpart international judges.

The significance of these distinctive features of the tribunal have now come into play, as a fundamental disagreement has emerged over whether the tribunal should extend its mandate to investigate further defendants. In December last year the then international co-prosecutor, Robert Petit, a Canadian citizen, filed a motion calling for the tribunal to investigate a number (thought to be six) of additional suspects who might be indicted for crimes against humanity.

The response of the Cambodian co-prosecutor, Chea Leang, a niece of the Cambodian deputy prime minister, Sok An, was to file an opposing motion against such an action, citing the likelihood that to do so would undermine national stability. The terms of her motion were made public in January 2009, and later in the year were heartily endorsed by Prime Minister Hun Sen, who has previously called on his compatriots to 'dig a hole and bury the past'.

Since then several developments have occurred. The international co-prosecutor, Petit, has resigned 'for personal reasons', though as he left Cambodia he hit out at the readiness of the Cambodian Government for thinking 'they have the right to tell courts what to do here'. Meanwhile, the Pre-Trial Chamber of the tribunal was unable to reach a decision as to whether there should be investigations that might lead to further indictments as requested by Petit and Opposed by Chea Leang: in a five-person chamber, the three Cambodian judges voted against the motion while the two international judges voted in favour. Since no supermajority was achieved the issue was unresolved, leaving the way open for the international co-prosecutor to again seek the indictment of further suspects.

On 8 September, acting international co-prosecutor William Smith, an Australian citizen, formally recommended that the tribunal investigate five additional persons for having committed crimes against humanity. Hun Sen went into oratorical overdrive. He accused foreign judges and prosecutors of having 'received orders from their governments to create problems here'. These unnamed governments, Hun Sen said, wanted war in Cambodia, since 'if Cambodia has war they are happy and we will be easy to occupy'.

Given the tribunal's chequered history to date, it is tempting to dismiss this latest controversy as unlikely to have any long-term consequences. But at very least, it underlines the continuing resentment felt by Prime Minister Hun Sen that the tribunal should have come into existence in the first place. And the controversy will make it more difficult for the international community to continue raising funds for an enterprise that is largely unwelcome to the government of the country in which it is taking place and set to take several more years to finalise.

With many in the current Cambodian administration (Hun Sen included) once members of the Khmer Rouge, there is a powerful lobby within Cambodia happy to see the tribunal brought to an end sooner rather than later, no matter how much support it receives from those who suffered under Pol Pot and from international organisations committed to obtaining a just reckoning of Cambodia's troubled past.

Photo by Flickr user Pretre, used under a Creative commons license.