Lauren Dawson
University of Southern California (USC)
Thirty years after the end of the murderous Khmer Rouge regime, significant efforts are finally being made to give justice to the victims and survivors of the genocide. But the question still remains of how to best serve those victims and how to best provide peaceful reconciliation and justice for all parties involved. It appears that a combination of retributive and restorative approaches, both formal and informal, would best serve the diverse interests and needs of the Khmer Rouge survivors.
To fully understand the issues of justice and reconciliation faced by Cambodians, it is important to first note the current socio-economic and political situation within Cambodia . The post-genocide Cambodia has experienced political unrest, a struggling economy, a poor standard of living, expanding health crises, a broken education system, and a fractured social structure for much of the past three decades. The judicial system in Cambodia is also widely viewed as corrupt and weak. Additionally, a large portion of the population is in need of jobs, education, access to public health care and other social services that, as of now, are struggling to respond to basic demands.
Crimes of the Khmer Rouge
The Khmer Rouge (KR)/Communist Party of Kampuchea (CPK) was led by Saloth Sar, also known as Pol Pot. Upon seizing power, Pol Pot immediately implemented a radical Communist policy aimed at creating a utopian agricultural society. On April 17, 1975, Khmer Rouge forces ordered civilians to evacuate the capital city of Phnom Penh under the guise of U.S. bomb threats. Hundreds of thousands of people were forced to evacuate to the countryside. This event marked the beginning of what Pol Pot called “Year Zero.”[1] Cambodia was to start over, to become purified and new.
During its reign of terror, the KR leadership identified several key enemies of the party, including ethnic Vietnamese, Chinese, Cham Muslims, the educated/intelligentsia, capitalists, urbanites, and former Lon Nol soldiers or supporters. “Old people” or “base people” were viewed as the ideal members of society—they were peasant farmers who lived in the countryside, worked the land, were uneducated, and poor. The “new people,” identified primarily as former city-dwellers who were forcibly relocated, were enemies. If the “new people” could not adjust to peasant life, they were either killed or died of disease and starvation. For the Khmer Rouge, people were expendable and it was always safer to kill a potential enemy than to let him live free. Everyone was put to work, harvesting and planting crops and cooking for the communes where they were now forced to live. Children were separated from their parents and placed in different communes.[2] Food was scarce because most of the harvested rice went to the country’s stockpile in order to fulfill the KR’s economic goals for Cambodia . Workers were forbidden from eating the food they harvested or the fruits growing in the trees—all of these things belonged to the “Angkar,” meaning abstractly “the organization.” People lived in a constant state of fear. Many quickly began dying of disease, starvation, and execution. In order to achieve his goal of purification, Pol Pot began ordering purges throughout the country. Anyone who was suspected of “anti-Angkar” activities would be arrested or killed immediately.
Tuol Sleng prison, a sub-unit of the notorious S-21 prison center, was the main site for housing, interrogating, and torturing perceived political enemies. An estimated 14,000 men, women, and children passed through Tuol Sleng, and were later “smashed” by the Khmer Rouge. Prisoners were instructed to confess their betrayals and reveal the names of other supposed traitors and enemies. Often, the victims listed every name they could think of, simply to stop the torture. Some confessions were forty pages long, others were only 2 or 3 pages. After confessing, prisoners were transported to Choeung Ek, processed, and then taken to the killing site. They were lined up on the edge of pits and struck in the head or neck with iron bars that were nearly a meter long.[3] Their bodies were thrown into the pits and several hundred were buried together. Young children, who were often brought to the prison with their parents, were killed at Choeung Ek as well—guards would hold them by their ankles and beat them to death against a tree, then bury them in mass graves. Such mass graves have been discovered all across the Cambodian countryside.
An estimated 1.7 million people, over 20% of the population, died at the hands of the Khmer Rouge between 1975 and 1979. It is estimated that 100% of all ethnic Vietnamese were killed or forced out of the country, 40% of Cham Muslims were killed, and 50% of ethnic Chinese.[4]
Restorative Justice
Restorative justice will be critical to reconciliation for Cambodians. Restorative justice aims to establish lasting peace after conflict and preventative problem solving through the active participation of victims, offenders, and the overall community in the reconciliation processes. It is dependent upon personal involvement and participation of these groups and it requires that the conflict be viewed within its particular social context. Restorative justice is centrally concerned with restoring the victim (financially, emotionally, and socially) and the community and with restoring the offenders to law-abiding lives. Ideally, these processes should take place in conjunction with the proceedings of recognized justice agencies.
Retributive Justice
Retributive justice seeks to settle conflict by imposing proportional punishments for specific offenses. Retributive justice is based upon the principle that the wrongness of the criminal act justifies the imposition of punishment on the offender. However, retributive justice does not seek peace—for victims or for offenders. Instituting punishment in order to discourage further rule breaking or to influence behavior does little to rehabilitate offenders or provide reconciliation for the victims. Rather than promoting healing and restoring offenders to lawful society, punishment can increase anger, resentment, and alienation from society, making offenders more likely to commit another crime. Therefore, retributive justice alone will not serve the interests of peaceful reconciliation.
The Justice the Survivors want
Nhim Savath: Former Lon Nol Soldier & Victim of the KR
Nhim Savath is a 69-year-old male living in Kok Kruos Village , Prey Taom, Kompong Ro. He was a student and then served as a Lon Nol soldier from 1972 until 1975. Savath was evacuated by the KR as a prisoner of war and then moved to another province three months later to work on building a dam. He was reunited with his wife at one of the work camps.
Having lost so much to the Khmer Rouge, Nhim Savath found solace in knowing that he was not the only one who suffered. Thinking about others who had lost their children, family, and friends helped him to move forward and heal. On the topic of healing, Savath offered the following insight:
“Unity between the people is important for helping the country move on. It is the unity that will help them. For example, I joined the local committee to rebuild the pagoda in this area. Having a common goal of focus—having unity—is important…Religion is also a very important aspect of healing. After all, religion is one of the three things named in the country’s motto: ‘Nation, Religion, and King’…People should share the same ideas, like uniting with the goals of the government in order to create the unity needed for healing. We just need unity.”
Savath learned about the Khmer Rouge Trials (the ECCC) earlier in 2009 through one of DC-Cam’s Living Documents projects in his area. He believes the courts can decide what to do with Duch, Ieng Sary, Nuon Chea, and others, and he hopes that the judges are fair and capable so that they can bring justice to Cambodia . When asked what he would do if he were the judge, Savath stated that he would “execute the people on trial…put the KR leadership to death.” However, he believes that only the top KR leaders should be prosecuted and condemned. The lower level cadres “were only following orders from their superiors.” He agrees that the trials are one way for the Cambodian people to unite—and thus to heal—because the law gives them unity but he also believes that it is vital to teach future generations about what happened under the Khmer Rouge. He wants to see children educated about the history of the KR “to prevent it from happening again.”
Chea Mao: Former KR Child Soldier & S-21 Prison Guard
Chea Mao is a 59-year-old male living in Kampong Chhang province. He was forced to join the Khmer Rouge liberation army when he was 12 years old and he was taken away from his home in 1973. Eventually, he was assigned as a guard outside the walls of Tuol Sleng prison to provide security.
Chea Mao believes that the victims of the Khmer Rouge deserve justice. He considers himself a victim, rather than a perpetrator, and asserts that he was simply following orders. Chea Mao does not want to take revenge because “vindictiveness is not good.” Even when he had the chance to seek revenge, he says he chose not to. When asked about what justice should look like for Cambodia , Mao explained:
“The people who died did so with dignity, but those who survived do not have dignity because they keep thinking about those who died. There is no dignity in surviving. I keep thinking of every person who died during the Khmer Rouge…I still dedicate food to my parents at the pagoda. I think about it every day…[As for the KR trials], from a legal perspective, I do not care—let [Duch] face the trial because he did something bad. But from the Buddhist perspective, let him face the karma…The people who did the bad things will face the same consequences in the next life.”
Mao had little information about the trials and, for the most part, seemed uninterested in the proceedings. His main concern is for the present state of his life. He says he does not have peace of mind because he is still in poverty—he cannot have peace until he no longer lives below the poverty line. For him, therefore, justice, trial proceedings, reconciliation efforts, and the international community are irrelevant.
Mayane: Former Community Leader & Victim of the KR
Mayane is a 65-year-old woman living in Phnom Penh . She and her husband were evacuated from Phnom Penh on April 17, 1975. They were told not to bring any of their belongings with them because they would be returning in three days.
Mayane has been watching the ECCC proceedings on television but she does not know whether the trials are positive or negative. Before the trials, people did not focus on the Khmer Rouge. Now that the trials are taking place, it seems to her that people are thinking more about the genocide and the past. She is dissatisfied with the slow progress and feels that the trials are so far removed from the genocide that it is difficult to feel like justice is being served. Mayane says the trials would have been much more helpful had they taken place immediately after the Khmer Rouge period. But for now, she wants to see future generations educated about the genocide. She would like to see parents tell their children about the past: “Everyone’s experience is different. Each family should write down its own history to tell its own story.”
Him Huy: Former Head of the Special Unit at S-21
Him Huy is a 54-year-old male from Kbal Chroy village. Until 1972, he was a student at the local school and helped his parents with the farming. In 1972, he was conscripted into the revolutionary army. In 1976, he was told he was being transferred to the Navy, but he was actually taken to Tuol Sleng with a group of other cadres. He remained at S-21 for several days when prison units were established: “after all of the units were established, many prisoners from Division 703, our offices, and even staff at Tuol Sleng were arrested and questioned.”
Huy’s unit was often in charge of transporting prisoners from S-21 to Choeung Ek, where they were killed and buried in mass graves. Upon arriving at Choeung Ek, he was in charge of recording every name and then taking the list back to Sous Thy at S-21. When asked if he feels responsible for his actions under the KR or if he had any regrets, he responded:
“No, I don’t feel responsible. I had a plan [for rebellion]. I did the best I could. When [the plan] failed, my hope left. You could ask me, ‘Did I have a choice?’ But no, I had no choice…During that period I regret all the things that happened. It is always in my heart and in my mind. It was really bad. I never thought that I would survive the regime.”
He repeatedly insisted that he and the other cadres had no choice, that they were just following orders, and that they could not be held responsible for what happened. According to Huy, only Duch should be responsible and only Duch is at fault for the crimes committed. He agrees that future generations should be educated about the KR: “I think it is important—education is the only way out. Being uneducated leads to darkness. I want my children to know.” When asked about what he would need in order to find personal peace, Him Huy responded:
“It is a painful memory, what happened at Tuol Sleng…There were so many times that I wanted to commit suicide…But I knew that if I pulled the trigger they would go after my family and kill them, too…There is no way for me to feel at peace unless [people] stop asking me questions. Just stop asking me questions. Then I will have peace.”
About the Extraordinary Chambers in the Courts of Cambodia
Established in 2003 after the Cambodian National Assembly passed a law for its creation (in 2001), the Extraordinary Chambers in the Courts of Cambodia (or ECCC) was created to prosecute the crimes committed during the Khmer Rouge regime (1975-79). It is a mixed tribunal jointly created by the Cambodian government and the United Nations, though it is meant to be independent of both. It is a “Cambodian court with international participation that will apply international standards.”[5] There has been chronic controversy over the ECCC, primarily focused on the misappropriation of funds and reports of corruption.
The ECCC incorporates aspects of traditional retributive justice by seeking a conviction and subsequent punishment (retribution) for wrongs committed. However, it also seeks to incorporate aspects of restorative justice through outreach and victim participation programs. Through these programs, survivors from around the country are brought to witness the court’s proceedings. Outreach materials, including information booklets, pamphlets, posters, t-shirts, stickers, etc. have also been distributed in the provinces. These materials provide information about the court and the trial proceedings and aim to raise awareness about the ECCC and encourage victim participation. Survivors are also given assistance in filing official statements/complaints with the court, if they so desire. Additionally, speaking events, village meetings, and interviews with radio programs like Voice of America (VOA) have been organized to increase public awareness and attention.
The need for both Retributive and Restorative Justice for Cambodia
A common theme present in the interviews mentioned earlier was that of shared experiences. Nearly all of the interviewees mentioned—and others not mentioned here—voluntarily spoke of finding solace in remembering that they were not alone in their suffering, and that others around them had suffered the same or worse. Thus, as expressed by Mayane in her interview, sharing one’s experiences with others is key to creating an open environment that allows for building peace through fellowship. DC-Cam helped to initiate one such program through the dramatic play called “Breaking The Silence.” The play tells the stories of different survivors of the Khmer Rouge, ranging from a young girl raped by KR cadres, to child soldiers conscripted into the KR, to a son desperate to find his father’s burial site. The play also incorporates traditional Cambodian songs, interspersed with the different stories and interactions between characters. Performances are organized and presented before local communities. The play is one way to encourage dialogue about the genocide and individual experiences. It allows the audience to look at the past through the eyes of multiple people with different histories, roles, and reactions to the past. The play also encourages viewers to take ownership for their personal experiences and the experiences of their families. These performances should be more widespread, presented to more audiences, and perhaps altered to include even more characters and perspectives. Helping communities facilitate open forums after the performances to allow people to discuss their reactions or share their own stories with others could also prove beneficial.
According to Suzannah Linton’s conclusions on a study conducted by DC-Cam in 2002, “Cambodians want to be reconciled with the Khmer Rouge/CPK and move together towards a better future…Forgiveness is very important; it is key for reconciliation.”[6] But as the study revealed, forgiveness does not mean forgetting what happened. Rather, it seems that forgiveness means finding some resolution to one’s own experience, “putting aside the negative and destructive feelings,” and then moving forward toward a healthy existence.[7] This perspective seems to be widely accepted among Cambodians because it is based in Buddhist teachings. It is important to note that this perspective does not necessarily conflict with commonly held feelings of anger or hatred towards the Khmer Rouge. That is, individuals may experience feelings of anger towards the KR on a daily basis while simultaneously recognizing the need to forgive. Additionally, it is possible for survivors to forgive individual Khmer Rouge that caused them harm while still maintaining hatred towards the leaders or the Khmer Rouge violence.[8] Survey respondents also recognized reconciliation as a multi-faceted process that involves both personal healing and a collective effort to live peacefully together and work towards a common future. The ideas and beliefs expressed by respondents through this survey closely align with the ideology of restorative justice. However, most respondents also agreed that people must take responsibility for the wrongs committed—“and most respondents equated this with individual criminal responsibility in a court of law.”[9]
In a study conducted by the University of California-Berkley , respondents were asked about what they felt needs to happen before they can forgive the top KR leaders. Of the respondents who lived under the KR, 41.8% said the leaders must be punished, whereas 23.9% said they can never forgive the leaders. 12.3% said the leaders must confess and tell the truth, and 5.4% said the leaders must apologize.[10] Of the respondents who did not live under the KR, 33.1% said the leaders must be punished, 19.9% said they could not be forgiven, 10.9% said they must apologize, and 10.0% said they must compensate survivors. Based on the study, it seems that Cambodians want to see the former Khmer Rouge leaders held accountable for their crimes, and that (for many respondents) some form of punishment must precede forgiveness. Most respondents wanted to see accountability taken by those who committed violent acts, specifically killing, starvation, forced labor, and torture. The largest number of respondents (48.9%) said they would like to see those responsible put on trial; 22.8% said they want to see them punished; 12.4% want the leaders to be imprisoned; and 12% want them executed.[11]
Based on these results, it appears that the most effective approach to justice and reconciliation involves a combination of restorative and retributive justice practices, similar to the current ECCC efforts underway. However, it would also be beneficial to expand the current efforts to incorporate a broader base of Cambodians, particularly those who fall outside the groups wanting some form of punishment as justice. Increasing restorative justice programs is essential to providing effective resolutions for more people. It is important to remember that no single approach will satisfy all victims. Thus, a plan that integrates multiple approaches will better serve the needs of the diverse victim population.
Therefore, in addition to the hybrid tribunal, facilitating forums for discussion between victims and perpetrators could encourage reconciliation and peace, especially for those individuals who expressed desires to see former perpetrators confess and/or apologize for their roles. Additionally, such interactions may foster greater understanding between victims and perpetrators and allow each party to feel compassion for the other’s experience—particularly in cases where an individual is both victim and perpetrator.
As both Mayane and Nhim Savath noted, focus on the future can help individuals and the community as a whole to build a new peace. Common goals can unite former enemies and bring together people with otherwise very different beliefs. Organizing community projects, such as revitalizing infrastructure or creating communal welfare programs or rebuilding pagodas, is one way to create goal-oriented cooperation.
Cambodians could also take the initiative to increase awareness of the Khmer Rouge history by recording their own stories (as suggested by Mayane), participating in the survivor outreach programs with the ECCC, or organizing remembrance events for the community.
In tourism-heavy areas, such as Siem Reap, information about the Khmer Rouge could be incorporated into guided tours. For example, tour guides could educate visitors about the protection of Angkor Wat during the KR and the impact of the violence on surrounding areas. The KR touched every corner of Cambodia and visitors, like Cambodians, should learn about the country’s turbulent history in order to give a voice to the survivors and increase awareness so that this gruesome history will not repeat itself.
Sunday, July 26, 2009
CHALLENGES TO WITNESS’S CREDIBILITY CONTINUE
July 22, 2009
By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law
Prak Khan, a former interrogator at Tuol Sleng prison (S-21), returned to
the witness stand today and continued to provide details about the
operations of the prison, which was run by the Accused Person, Kaing Guek
Eav (alias Duch).
The Co-Prosecutors seemed to recognize that the witness’s credibility may
have been damaged by inconsistent statements given the day before. They used
their time to clarify details of Prak’s testimony. Co-Prosecutor Tan
Senarong began by introducing a map of S-21 and asking the witness to show
the court specific locations mentioned yesterday, including where
interrogations took place, where blood was drawn from prisoners, and where
he saw a baby executed by a superior officer. At one point, Co-Prosecutor
William Smith introduced a series of film clips from the documentary “S-21:
The Khmer Rouge Killing Machine”, which highlighted an interview Prak Khan
had given previously about his experiences at S-21. To help direct the
witness’s testimony, Smith played each clip and then asked Prak if his past
statements were accurate. This tactic proved beneficial, as the prosecution
was able to develop a more consistent understanding of Prak’s testimony.
However, it seemed unclear whether Prak actually remembered the events he
testified to or whether he was confirming the statements to avoid appearing
untruthful.
After the Co-Prosecutors finished, Civil Party Lawyers began a line of
questioning that attempted to portray Duch as a leader who maintained
absolute control over the actions of his subordinates. In response to their
questions, Prak discussed how he was only allowed access to the dining hall,
prison, and interrogation rooms at S-21 because of Duch’s strict rules
limiting the staff to the areas where they worked. Prak also said that, in
the three days prior to the Vietnamese entering Phnom Penh in January 1979,
the interrogators did not receive any orders from Duch and therefore spent
their days “sitting around doing nothing”.
However, Civil Party Lawyer Martine Jacquin may have undermined the
prosecution’s efforts when she chose to use her time with the witness to
question Duch instead. When asked about Prak’s statements, Duch attacked the
witness, saying that some of the details were “fabricated”. President Nil
Nonn then stepped in and warned Duch not to “pressure the witness” and to
“behave properly”.
In the second half of the day’s proceedings, the defense counsel sought to
diminish the witness’s credibility by attacking Prak’s basis of knowledge
concerning his testimony. In response to questions from Defense Council
Francois Roux, the witness admitted that some of the details in his
testimony came from watching previous witnesses testify at Duch’s trial.
Additionally, Prak admitted that he had been hospitalized from 1978 until
the Vietnamese liberation in 1979, and, therefore had not personally
witnessed anything at S-21 during that time.
The defense used the remainder of its time to refute the notion that S-21
staff strictly adhered to Duch’s orders. Roux introduced another S-21
interrogator’s notes from one of Duch’s training sessions that stated
interrogators should rely on “political pressure” first and only use torture
as a secondary measure. Roux then contrasted this with statements made by
the witness that indicated torture was the primary method of interrogation
used by the staff. In response, the witness confirmed that Duch in fact had
instructed guards to rely first on “political pressure” and propaganda.
Procedural Dispute Interrupts the Trial Chamber
When the defense concluded, the court introduced the next witness, former
S-21 prison guard Kork Sras. In response to questions from President Nil
Nonn and Judge Thou Mony, Kork briefly outlined his experiences during the
Khmer Rouge period. Kork explained that he first joined the revolution in
1973 as a member of Division 12. After the Khmer Rouge took control of Phnom
Penh, he was moved to Ta Kamao prison and later transferred to S-21 to work
as a guard.
Kork’s testimony, however, was suspended when Co-Prosecutor William Smith
and Civil Party Lawyer Silke Studzinsky both made requests to the court
concerning the procedures for questioning witnesses. Smith addressed the
issue of whether parties to the court could question the accused in the
middle of questioning a witness and argued that such procedures allow for
the accused to intimidate and undermine the witness. Smith’s request was in
response to the decision allowing Civil Party Lawyer Martine Jacquin to
question Duch in the middle of Prak Khan’s testimony earlier in the day.
Smith requested that the court alter their procedures to prevent such
practices in the future. In response, the defense argued the prosecution was
“afraid of an interactive dialogue”.
After the prosecution’s request, Studzinsky addressed the limited time
allotted to civil parties for questioning and requested that the civil
parties be able to submit any questions they are unable to ask a witness to
the judges, who could then consider whether such questions should be put to
the witness. The defense strongly objected, with Roux accusing Studzinsky of
attempting to circumvent the judges’ decision to limit the civil parties’
time.
The court agreed to consider both requests and issue decisions on Monday,
July 27, 2009.
By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law
Prak Khan, a former interrogator at Tuol Sleng prison (S-21), returned to
the witness stand today and continued to provide details about the
operations of the prison, which was run by the Accused Person, Kaing Guek
Eav (alias Duch).
The Co-Prosecutors seemed to recognize that the witness’s credibility may
have been damaged by inconsistent statements given the day before. They used
their time to clarify details of Prak’s testimony. Co-Prosecutor Tan
Senarong began by introducing a map of S-21 and asking the witness to show
the court specific locations mentioned yesterday, including where
interrogations took place, where blood was drawn from prisoners, and where
he saw a baby executed by a superior officer. At one point, Co-Prosecutor
William Smith introduced a series of film clips from the documentary “S-21:
The Khmer Rouge Killing Machine”, which highlighted an interview Prak Khan
had given previously about his experiences at S-21. To help direct the
witness’s testimony, Smith played each clip and then asked Prak if his past
statements were accurate. This tactic proved beneficial, as the prosecution
was able to develop a more consistent understanding of Prak’s testimony.
However, it seemed unclear whether Prak actually remembered the events he
testified to or whether he was confirming the statements to avoid appearing
untruthful.
After the Co-Prosecutors finished, Civil Party Lawyers began a line of
questioning that attempted to portray Duch as a leader who maintained
absolute control over the actions of his subordinates. In response to their
questions, Prak discussed how he was only allowed access to the dining hall,
prison, and interrogation rooms at S-21 because of Duch’s strict rules
limiting the staff to the areas where they worked. Prak also said that, in
the three days prior to the Vietnamese entering Phnom Penh in January 1979,
the interrogators did not receive any orders from Duch and therefore spent
their days “sitting around doing nothing”.
However, Civil Party Lawyer Martine Jacquin may have undermined the
prosecution’s efforts when she chose to use her time with the witness to
question Duch instead. When asked about Prak’s statements, Duch attacked the
witness, saying that some of the details were “fabricated”. President Nil
Nonn then stepped in and warned Duch not to “pressure the witness” and to
“behave properly”.
In the second half of the day’s proceedings, the defense counsel sought to
diminish the witness’s credibility by attacking Prak’s basis of knowledge
concerning his testimony. In response to questions from Defense Council
Francois Roux, the witness admitted that some of the details in his
testimony came from watching previous witnesses testify at Duch’s trial.
Additionally, Prak admitted that he had been hospitalized from 1978 until
the Vietnamese liberation in 1979, and, therefore had not personally
witnessed anything at S-21 during that time.
The defense used the remainder of its time to refute the notion that S-21
staff strictly adhered to Duch’s orders. Roux introduced another S-21
interrogator’s notes from one of Duch’s training sessions that stated
interrogators should rely on “political pressure” first and only use torture
as a secondary measure. Roux then contrasted this with statements made by
the witness that indicated torture was the primary method of interrogation
used by the staff. In response, the witness confirmed that Duch in fact had
instructed guards to rely first on “political pressure” and propaganda.
Procedural Dispute Interrupts the Trial Chamber
When the defense concluded, the court introduced the next witness, former
S-21 prison guard Kork Sras. In response to questions from President Nil
Nonn and Judge Thou Mony, Kork briefly outlined his experiences during the
Khmer Rouge period. Kork explained that he first joined the revolution in
1973 as a member of Division 12. After the Khmer Rouge took control of Phnom
Penh, he was moved to Ta Kamao prison and later transferred to S-21 to work
as a guard.
Kork’s testimony, however, was suspended when Co-Prosecutor William Smith
and Civil Party Lawyer Silke Studzinsky both made requests to the court
concerning the procedures for questioning witnesses. Smith addressed the
issue of whether parties to the court could question the accused in the
middle of questioning a witness and argued that such procedures allow for
the accused to intimidate and undermine the witness. Smith’s request was in
response to the decision allowing Civil Party Lawyer Martine Jacquin to
question Duch in the middle of Prak Khan’s testimony earlier in the day.
Smith requested that the court alter their procedures to prevent such
practices in the future. In response, the defense argued the prosecution was
“afraid of an interactive dialogue”.
After the prosecution’s request, Studzinsky addressed the limited time
allotted to civil parties for questioning and requested that the civil
parties be able to submit any questions they are unable to ask a witness to
the judges, who could then consider whether such questions should be put to
the witness. The defense strongly objected, with Roux accusing Studzinsky of
attempting to circumvent the judges’ decision to limit the civil parties’
time.
The court agreed to consider both requests and issue decisions on Monday,
July 27, 2009.
Wednesday, July 22, 2009
Engaging Cham Muslims in Khmer Rouge History Learning: Will the Khmer Rouge Leaders Be Charged for Genocide?
Farina So and Sok-Kheang Ly
Two grassroots meetings at two mosques in Kampot province[1] were organized to engage around 350 Cham people in discussion about Khmer Rouge (KR) history, education, and the ongoing legal proceedings against five KR leaders at the Extraordinary Chambers in the Courts of Cambodia (ECCC).[2] KR crimes have left an unforgettable traumatic scar in human history, as the KR’s nearly four-year rule between 1975 and 1979 is believed to be responsible for the death of approximately one fourth of the Cambodian population. At the Kampot meetings, when speaking of the regime, most participants could not find any verbal expressions capable of describing the horrible living conditions of that time.
With justice imminent, Cham people, the second largest population in Cambodia , have managed to use various means to teach the younger generation KR history. During the meetings, many participants said that the learning process was valuable for their people as a whole. This paper discusses the role of story-telling in educating Cham children about the KR regime, as well as people’s perceptions about the integration of KR history into public school’s curriculum.
Past Learning about KR
Oral history is rooted in Cambodian culture and the power of storytelling is important in helping people pass on their stories from one to another generation. This is the reason that many people have begun to speak out about their experiences under the Khmer Rouge regime to the next generation. Children are told about evacuation, separation, starvation, killings, torture, fear and Islamic religious persecution as shaped by selective memory and personal experiences. The process has been ongoing for 30 years.
An 80-year-old Haji, Sraleh, said that telling the next generation the story of the KR period is indispensable for helping them understand, and also to prevent future atrocities. He further said that he has to “remember” to avoid the atrocities and “remember” to move forward. One of his children, who was drafted into a children’s unit, was cremated without any consent from Saleh. He was not allowed to visit his son before he died. The KR said that there was no need for him to come as he was not a physician. He felt very disappointed with the Khmer Rouge’s cremation of his son because it was against Islam.
Commenting on religious persecution and language prohibition, No Halima said that the KR forced her to eat pork, abandon Islamic practices, and give up speaking Cham because they considered Cham to be a foreign language. But she could not swallow the pork soup and give up praying and other religious practices. She asked the KR to allow her some more time to adapt to the KR policy. Faced with death threat as she once experienced the warning from Khmer Rouge spy, Halima stopped speaking Cham overtly; however, she could not help using little Cham language for communicating with her relatives for some purposes. Likewise, Taer Aminah feared the young Khmer Rouge cadres who threatened her life and banned the practices of Islam. She keeps telling these stories to her children every day because she is concerned about their future and that of the next generation, who either know little about the KR or do not believe that they existed.
Similarly, Muhammad Aly said that life was very terrible during the Khmer Rouge; he ended up stealing bran to eat due to hunger. But some of the young generation “do not believe this fact until they have faced it”, complained Aly. That makes many parents concerned about their children’s behaviour towards the Khmer Rouge regime, so they keep telling the younger generation about the atrocities in order to feel some relief and also to avoid a repetition of a history. In this regard, DC-Cam’s “Connecting Youth with their Parents” program is important as it values individual stories as a mechanism for transforming survivors’ concerns into a truth-telling process for the next generation. For this program youth were asked to write a story about their parents’ experiences so that they could learn more about the KR. It was also intended to improve the relationship between parents and children and help parents lessen their sufferings once they see that their children have learned about their bitter experiences.
KR History under Discussion
Educating the younger generation about the KR regime is very important for raising their awareness and serving as preventive tool. There are multiple ways of educating youth about the Khmer Rouge, i.e., through drama, oral history, poets, novels, teaching in classroom. The later, which involves rigorous process, has been approved by the Ministry of Education, Youth and Sports.[3] As a consequence, the next generation will soon learn the history of Democratic Kampuchea as part of a newly-established school curriculum.
The Kampot meeting raised several important questions: whether the case of Cham Muslim under the KR was genocide, and how to prevent genocide from happening. Commenting on the KR persecution of Cham Muslims, Lib Yakaub said that he believes that the KR killed people with intent and plan; without plan and intent, they could not slaughter people systematically. He argues that “the Khmer Rouge had already decided who would live and who would die” However, it is hard to find any direct evidence or written documents proving the KR intent to kill Cham Muslim based on religious and ethnic grounds, as is required for legal prosecution of genocide. Nonetheless, it is suggested that searching for evidentiary information from the ground might enable investigators to discover essential evidence for this case. It is noted that most Cham Muslims feel that they greatly suffered from the Khmer Rouge policies to destroy religions, Cham language, religious practices, and identity.
The two July meetings about genocide education and oral history broadened Cham Muslim’s knowledge about the Khmer Rouge regime and Khmer Rouge tribunal, generated wider discussion on these topics, and may have contributed to genocide prevention. All participants were eager to share their experience with the rest of the group. Their stories grew louder as they gathered together during the meeting. Reading from the text book also helped them connect their personal stories to the written text. At each meeting venue several young participants were asked to read the excerpted text about Cham people and most of them said it resonated with their personal experiences even though the text does not go into detail.
47-year-old Sim Sann expressed his feelings about coming to visit the courtroom and learning as to how the court prosecutes the KR defendants. He recalled his life experience during the KR period after he was evacuated to Voar Mountain (Phnom Voar). Fear, overwork and a lack of food were the most difficult part for him as a child during KR, said Sann. He wanted to find out the truth and supported the idea of integrating genocide education in classroom.
In response to questions about punishing the KR leaders, DC-Cam Director Youk Chhang said that teaching genocide in the classroom has multiple functions and is one of many ways contributing to punishing the regime. Taer Aminah agreed with this answer and said that she cannot forgive Duch and other Khmer Rouge leaders due to the fact that they all committed serious crimes on her family and the rest of Cambodian people. The KR claimed the lives of her husband and her children and made her a widow. She not only pities herself but also other widows and orphans who survived the regime. She wishes to see the KR leaders held accountable for their crimes before they can ask for forgiveness. In addition, she wants to educate the next generation about the regime. Therefore, she is happy to hear that next generation will learn about the regime in public school. The meetings generated a good discussion and provided an opportunity for participants to raise their voices and have their concerns heard.
Conclusion
Life under the KR brought untold hardship for the Cambodian people as a whole. Cham people were ill-treated and prohibited from practicing religion, culture and tradition, and speaking the Cham language. These are the reasons that the older generation of Cham people have kept narrating their life experience through different means. Story-telling is the most common method by which they informally educate their children. Some parents even detail their life experience and encourage their offspring to write it down as a part of DC-Cam’s Oral History Project. Told about the genocide education studies that will be included in the public school’s curriculum, most of the participants expressed their satisfaction as it is going to enable their children to formally learn about the KR regime. In addition, their children could learn greater detail about that time and believe what their parents’ stories. These mechanisms help Cambodian society, including the Cham community, turn bitter memories into education.
Two grassroots meetings at two mosques in Kampot province[1] were organized to engage around 350 Cham people in discussion about Khmer Rouge (KR) history, education, and the ongoing legal proceedings against five KR leaders at the Extraordinary Chambers in the Courts of Cambodia (ECCC).[2] KR crimes have left an unforgettable traumatic scar in human history, as the KR’s nearly four-year rule between 1975 and 1979 is believed to be responsible for the death of approximately one fourth of the Cambodian population. At the Kampot meetings, when speaking of the regime, most participants could not find any verbal expressions capable of describing the horrible living conditions of that time.
With justice imminent, Cham people, the second largest population in Cambodia , have managed to use various means to teach the younger generation KR history. During the meetings, many participants said that the learning process was valuable for their people as a whole. This paper discusses the role of story-telling in educating Cham children about the KR regime, as well as people’s perceptions about the integration of KR history into public school’s curriculum.
Past Learning about KR
Oral history is rooted in Cambodian culture and the power of storytelling is important in helping people pass on their stories from one to another generation. This is the reason that many people have begun to speak out about their experiences under the Khmer Rouge regime to the next generation. Children are told about evacuation, separation, starvation, killings, torture, fear and Islamic religious persecution as shaped by selective memory and personal experiences. The process has been ongoing for 30 years.
An 80-year-old Haji, Sraleh, said that telling the next generation the story of the KR period is indispensable for helping them understand, and also to prevent future atrocities. He further said that he has to “remember” to avoid the atrocities and “remember” to move forward. One of his children, who was drafted into a children’s unit, was cremated without any consent from Saleh. He was not allowed to visit his son before he died. The KR said that there was no need for him to come as he was not a physician. He felt very disappointed with the Khmer Rouge’s cremation of his son because it was against Islam.
Commenting on religious persecution and language prohibition, No Halima said that the KR forced her to eat pork, abandon Islamic practices, and give up speaking Cham because they considered Cham to be a foreign language. But she could not swallow the pork soup and give up praying and other religious practices. She asked the KR to allow her some more time to adapt to the KR policy. Faced with death threat as she once experienced the warning from Khmer Rouge spy, Halima stopped speaking Cham overtly; however, she could not help using little Cham language for communicating with her relatives for some purposes. Likewise, Taer Aminah feared the young Khmer Rouge cadres who threatened her life and banned the practices of Islam. She keeps telling these stories to her children every day because she is concerned about their future and that of the next generation, who either know little about the KR or do not believe that they existed.
Similarly, Muhammad Aly said that life was very terrible during the Khmer Rouge; he ended up stealing bran to eat due to hunger. But some of the young generation “do not believe this fact until they have faced it”, complained Aly. That makes many parents concerned about their children’s behaviour towards the Khmer Rouge regime, so they keep telling the younger generation about the atrocities in order to feel some relief and also to avoid a repetition of a history. In this regard, DC-Cam’s “Connecting Youth with their Parents” program is important as it values individual stories as a mechanism for transforming survivors’ concerns into a truth-telling process for the next generation. For this program youth were asked to write a story about their parents’ experiences so that they could learn more about the KR. It was also intended to improve the relationship between parents and children and help parents lessen their sufferings once they see that their children have learned about their bitter experiences.
KR History under Discussion
Educating the younger generation about the KR regime is very important for raising their awareness and serving as preventive tool. There are multiple ways of educating youth about the Khmer Rouge, i.e., through drama, oral history, poets, novels, teaching in classroom. The later, which involves rigorous process, has been approved by the Ministry of Education, Youth and Sports.[3] As a consequence, the next generation will soon learn the history of Democratic Kampuchea as part of a newly-established school curriculum.
The Kampot meeting raised several important questions: whether the case of Cham Muslim under the KR was genocide, and how to prevent genocide from happening. Commenting on the KR persecution of Cham Muslims, Lib Yakaub said that he believes that the KR killed people with intent and plan; without plan and intent, they could not slaughter people systematically. He argues that “the Khmer Rouge had already decided who would live and who would die” However, it is hard to find any direct evidence or written documents proving the KR intent to kill Cham Muslim based on religious and ethnic grounds, as is required for legal prosecution of genocide. Nonetheless, it is suggested that searching for evidentiary information from the ground might enable investigators to discover essential evidence for this case. It is noted that most Cham Muslims feel that they greatly suffered from the Khmer Rouge policies to destroy religions, Cham language, religious practices, and identity.
The two July meetings about genocide education and oral history broadened Cham Muslim’s knowledge about the Khmer Rouge regime and Khmer Rouge tribunal, generated wider discussion on these topics, and may have contributed to genocide prevention. All participants were eager to share their experience with the rest of the group. Their stories grew louder as they gathered together during the meeting. Reading from the text book also helped them connect their personal stories to the written text. At each meeting venue several young participants were asked to read the excerpted text about Cham people and most of them said it resonated with their personal experiences even though the text does not go into detail.
47-year-old Sim Sann expressed his feelings about coming to visit the courtroom and learning as to how the court prosecutes the KR defendants. He recalled his life experience during the KR period after he was evacuated to Voar Mountain (Phnom Voar). Fear, overwork and a lack of food were the most difficult part for him as a child during KR, said Sann. He wanted to find out the truth and supported the idea of integrating genocide education in classroom.
In response to questions about punishing the KR leaders, DC-Cam Director Youk Chhang said that teaching genocide in the classroom has multiple functions and is one of many ways contributing to punishing the regime. Taer Aminah agreed with this answer and said that she cannot forgive Duch and other Khmer Rouge leaders due to the fact that they all committed serious crimes on her family and the rest of Cambodian people. The KR claimed the lives of her husband and her children and made her a widow. She not only pities herself but also other widows and orphans who survived the regime. She wishes to see the KR leaders held accountable for their crimes before they can ask for forgiveness. In addition, she wants to educate the next generation about the regime. Therefore, she is happy to hear that next generation will learn about the regime in public school. The meetings generated a good discussion and provided an opportunity for participants to raise their voices and have their concerns heard.
Conclusion
Life under the KR brought untold hardship for the Cambodian people as a whole. Cham people were ill-treated and prohibited from practicing religion, culture and tradition, and speaking the Cham language. These are the reasons that the older generation of Cham people have kept narrating their life experience through different means. Story-telling is the most common method by which they informally educate their children. Some parents even detail their life experience and encourage their offspring to write it down as a part of DC-Cam’s Oral History Project. Told about the genocide education studies that will be included in the public school’s curriculum, most of the participants expressed their satisfaction as it is going to enable their children to formally learn about the KR regime. In addition, their children could learn greater detail about that time and believe what their parents’ stories. These mechanisms help Cambodian society, including the Cham community, turn bitter memories into education.
FORMER GUARD GIVES DETAILED TESTIMONY OF PRISON OPERATIONS, BUT COURT EXPRESSES SOME CONCERN OVER HIS CREDIBILITY
July 21, 2009
By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law
Former prison guard Prak Khan was introduced as the Trial Chamber’s next
witness today in the trial of prison chief Kaing Guek Eav (alias Duch). With
questions from Judges Ya Sokhan, Silvia Cartwright, and Jean-Marc Lavergne,
the Trial Chamber examined details of Prak’s association with the Khmer
Rouge from the time he joined the revolution until the Vietnamese liberation
in 1979.
Prak Khan, age 57, initially joined the agricultural section of District 56
at Ta Khmao in 1972. Shortly thereafter he was transferred to the military
unit and was moved to Prey Sar, where he helped build dykes, dig canals, and
plant rice. A couple months later he was transferred once more, this time to
become a guard at S-21, also known as Tuol Sleng prison.
When he first arrived at S-21, Prak was placed with a group of 10 to 12
armed guards under the supervision of Him Huy and Comrade Hor. His group was
responsible for monitoring traffic to and from the compound. While working
12-hour shifts near the gate to enter the prison compound, Prak testified
that he saw truckloads of victims being brought in. Larger trucks carried 20
to 30 people, while smaller ones carried around ten. And “enemies” were
brought in along with their families, so trucks often carried men, women,
and children. Some came in handcuffs and were brought directly to the
prison, while others had not yet been formally arrested. They were brought
to a house where Him Huy and guards under his command would arrest,
handcuff, and blindfold the prisoners, then reload them onto the trucks and
take them into the prison. Prak also said that he witnessed truckloads of
detainees being taken out of the prison at about the same rate as he saw
prisoners being taken in, giving one the impression that S-21 functioned
with assembly-line efficiency.
Prak went on to discuss administrative aspects of prisoner detainment. After
being arrested, prisoners were divided into categories by Duch, according to
their importance. Normal prisoners were housed inside Tuol Sleng, while
“important” prisoners were kept at a “special” prison, located in a house
outside Tuol Sleng’s walls. When families arrived at the prison, they were
separated. The men and women were housed in different areas and the young
children were immediately taken for extermination. On one occasion, Prak
said his superior took a seven or eight month-old child from the mother’s
arms and threw it from an upper level of the prison, killing the child. Prak
was then ordered to bury the baby.
In late 1976, after working as a guard outside Tuol Sleng, Prak was
transferred to the interrogation unit of S-21. Discussing the way he learned
how to perform his new role, Prak said that there were no formal classes or
lessons on interrogation when he started, but, new recruits were assigned to
a more experienced interrogator to apprentice for a month or two, observing
and learning how to extract confessions from prisoners. However, after some
time, Prak said Duch began training sessions at his “political school” where
Duch instructed the interrogators on political ideology, methods of
interrogation, and non-lethal torture, including electrocution, pushing
needles under fingernails, whipping, and beating. Prak also said that Duch
taught the guards methods of humiliation, instructing them to force
prisoners to eat their own excrement and worship images of dogs.
Next, Prak answered questions about the logistical details of carrying out
interrogations. He explained that the interrogation unit, headed by Duch and
second-in-command, Brother Hor, was divided among three groups: hot, cold,
and chewing. The cold group focused on prisoners thought to be less
important and only applied high-pressure political questionings, while the
hot group used torture to extract confessions from those prisoners thought
to have more important information. If, after being interrogated by the hot
group, a prisoner still had not made a confession, the chewing group, of
which Prak was a member, would be ordered to apply methods of torture and
humiliation to accomplish that task.
For any particular interrogation, Prak said he first would receive orders
from Duch via phone or written message instructing him to interrogate a
particular person. Prak would then research where that prisoner was being
held, send a request to have that prisoner brought to him, and upon arrival
walk the prisoner to a designated interrogation room. Afterward, the
prisoner would be returned to his or her cell until the following day when
interrogations would continue.
Prak also described general prison conditions at S-21, giving details
similar or identical to those given by other witnesses. While he never saw
conditions at the “special prison,” he said that the majority of people were
held in either individual cells or common rooms in Buildings B, C, and D
inside the walls of Tuol Sleng. Individual cells were used for prisoners who
were actively being interrogated, while the common rooms were used to house
the rest. Inmates were housed in individual rooms. Men and women were kept
in separate common rooms and under different conditions. Prak described the
male common rooms as each having two rows of nine people laying down,
shackled to a long bar attached to the floor, while the women were left
unshackled and free to move around, with their cell door locked from the
outside.
To provide for basic needs, the prisoners were fed small rations of gruel,
given an empty ammunition box to use as a toilet, and hosed down by the
guards every couple of days.
Although the witness spent much of the morning providing details
corroborated by past testimony before the court, in the latter half of the
day’s session, Judges Silvia Cartwright and Jean-Marc Lavergne both
expressed notable skepticism about the witness’s credibility. Pointing out
some contradictory or inconsistent statements made by the witness, Judge
Cartwright noted that Prak had previously stated he saw pregnant women
detained at S-21, while today he claimed the opposite. Further noting
contradictory statements, Judge Lavergne pointed out that Prak told the
investigating judges that Duch was sometimes present during interrogations,
while today he told the Trial Chamber that Duch was not present. The most
harmful testimony to the prosecution seemed to come when Judge Cartwright
asked whether the witness clearly remembered the testimony he gave, or
whether he was partially relying on what people have told him more recently.
The witness answered in the affirmative. While the ECCC may not have a
strict rule against hearsay, such a confession, in light of the
contradictory statements, seemed to undermine the witness’s entire
testimony.
By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law
Former prison guard Prak Khan was introduced as the Trial Chamber’s next
witness today in the trial of prison chief Kaing Guek Eav (alias Duch). With
questions from Judges Ya Sokhan, Silvia Cartwright, and Jean-Marc Lavergne,
the Trial Chamber examined details of Prak’s association with the Khmer
Rouge from the time he joined the revolution until the Vietnamese liberation
in 1979.
Prak Khan, age 57, initially joined the agricultural section of District 56
at Ta Khmao in 1972. Shortly thereafter he was transferred to the military
unit and was moved to Prey Sar, where he helped build dykes, dig canals, and
plant rice. A couple months later he was transferred once more, this time to
become a guard at S-21, also known as Tuol Sleng prison.
When he first arrived at S-21, Prak was placed with a group of 10 to 12
armed guards under the supervision of Him Huy and Comrade Hor. His group was
responsible for monitoring traffic to and from the compound. While working
12-hour shifts near the gate to enter the prison compound, Prak testified
that he saw truckloads of victims being brought in. Larger trucks carried 20
to 30 people, while smaller ones carried around ten. And “enemies” were
brought in along with their families, so trucks often carried men, women,
and children. Some came in handcuffs and were brought directly to the
prison, while others had not yet been formally arrested. They were brought
to a house where Him Huy and guards under his command would arrest,
handcuff, and blindfold the prisoners, then reload them onto the trucks and
take them into the prison. Prak also said that he witnessed truckloads of
detainees being taken out of the prison at about the same rate as he saw
prisoners being taken in, giving one the impression that S-21 functioned
with assembly-line efficiency.
Prak went on to discuss administrative aspects of prisoner detainment. After
being arrested, prisoners were divided into categories by Duch, according to
their importance. Normal prisoners were housed inside Tuol Sleng, while
“important” prisoners were kept at a “special” prison, located in a house
outside Tuol Sleng’s walls. When families arrived at the prison, they were
separated. The men and women were housed in different areas and the young
children were immediately taken for extermination. On one occasion, Prak
said his superior took a seven or eight month-old child from the mother’s
arms and threw it from an upper level of the prison, killing the child. Prak
was then ordered to bury the baby.
In late 1976, after working as a guard outside Tuol Sleng, Prak was
transferred to the interrogation unit of S-21. Discussing the way he learned
how to perform his new role, Prak said that there were no formal classes or
lessons on interrogation when he started, but, new recruits were assigned to
a more experienced interrogator to apprentice for a month or two, observing
and learning how to extract confessions from prisoners. However, after some
time, Prak said Duch began training sessions at his “political school” where
Duch instructed the interrogators on political ideology, methods of
interrogation, and non-lethal torture, including electrocution, pushing
needles under fingernails, whipping, and beating. Prak also said that Duch
taught the guards methods of humiliation, instructing them to force
prisoners to eat their own excrement and worship images of dogs.
Next, Prak answered questions about the logistical details of carrying out
interrogations. He explained that the interrogation unit, headed by Duch and
second-in-command, Brother Hor, was divided among three groups: hot, cold,
and chewing. The cold group focused on prisoners thought to be less
important and only applied high-pressure political questionings, while the
hot group used torture to extract confessions from those prisoners thought
to have more important information. If, after being interrogated by the hot
group, a prisoner still had not made a confession, the chewing group, of
which Prak was a member, would be ordered to apply methods of torture and
humiliation to accomplish that task.
For any particular interrogation, Prak said he first would receive orders
from Duch via phone or written message instructing him to interrogate a
particular person. Prak would then research where that prisoner was being
held, send a request to have that prisoner brought to him, and upon arrival
walk the prisoner to a designated interrogation room. Afterward, the
prisoner would be returned to his or her cell until the following day when
interrogations would continue.
Prak also described general prison conditions at S-21, giving details
similar or identical to those given by other witnesses. While he never saw
conditions at the “special prison,” he said that the majority of people were
held in either individual cells or common rooms in Buildings B, C, and D
inside the walls of Tuol Sleng. Individual cells were used for prisoners who
were actively being interrogated, while the common rooms were used to house
the rest. Inmates were housed in individual rooms. Men and women were kept
in separate common rooms and under different conditions. Prak described the
male common rooms as each having two rows of nine people laying down,
shackled to a long bar attached to the floor, while the women were left
unshackled and free to move around, with their cell door locked from the
outside.
To provide for basic needs, the prisoners were fed small rations of gruel,
given an empty ammunition box to use as a toilet, and hosed down by the
guards every couple of days.
Although the witness spent much of the morning providing details
corroborated by past testimony before the court, in the latter half of the
day’s session, Judges Silvia Cartwright and Jean-Marc Lavergne both
expressed notable skepticism about the witness’s credibility. Pointing out
some contradictory or inconsistent statements made by the witness, Judge
Cartwright noted that Prak had previously stated he saw pregnant women
detained at S-21, while today he claimed the opposite. Further noting
contradictory statements, Judge Lavergne pointed out that Prak told the
investigating judges that Duch was sometimes present during interrogations,
while today he told the Trial Chamber that Duch was not present. The most
harmful testimony to the prosecution seemed to come when Judge Cartwright
asked whether the witness clearly remembered the testimony he gave, or
whether he was partially relying on what people have told him more recently.
The witness answered in the affirmative. While the ECCC may not have a
strict rule against hearsay, such a confession, in light of the
contradictory statements, seemed to undermine the witness’s entire
testimony.
Tuesday, July 21, 2009
REACHING OUT TO THE CHAM-MUSLIM COMMUNITY IN KAMPOT
Spencer Cryder
Tulane Law School, USA
Due to the extensive flooding in Kampot Province on 13 July 2009, the DC-Cam staff and legal associates arrived at Nurul-Ihshan Mosque in Tadib village slightly later than the scheduled eight o’clock start time. However, the flooding did not deter approximately two hundred villagers from attending our discussion on the Cham-Muslim experience during the Khmer Rouge period. The villagers sat on the floor, distinctly separated into male and female sections, with the older villagers near the front. I sat near a group of elderly women whose facial features – round faces and softer skin tones – initially struck me as unique. The organizer of the event, Farina So of DC-Cam, explained to me that this was a result of their Cham (Northern Vietnam) and Javanese ( Indonesia ) descent.
After an initial introduction by Farina, Youk Chhang asked that the group move in closer to promote a more intimate discussion. Thanks to the interpretation by Sayana Ser of DC-Cam, I was able to follow most of the morning’s discussions. Engaging primarily the elderly women, Youk first explained the developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and asked the villagers if they were interested in attending the ECCC for a day to observe the Duch trial. Although initially timid, around twenty individuals eventually raised their hands, the majority of whom were women. While not necessarily concerned with the proceedings before the ECCC, one woman explained that she wanted to attend the trial to see the face of the man who carried out such horrible atrocities, Duch. Others desired to attend the proceedings to confirm that after thirty years the perpetrators are being held responsible.
Based solely on the speakers’ body language, facial expressions, and frequent laughing, I imagined the victims were relating positive or humorous anecdotes. However, once Sayana began to translate one woman’s story concerning the murder and starvation of her relatives – from her sisters to her grandparents to her uncle – by the Khmer Rouge, I was struck by the woman’s cheerful demeanor as she recalled these tragedies. As a Westerner, I realized how differently Cambodians express their grief and tragedy. A tragic story in the West is often coupled with visible anguish and tears, whereas this woman conveyed her loss through nervous laughter and a smile. When Youk inquired into her ability to forgive the perpetrators, she flatly rejected the possibility of forgiveness. Her rejection persisted even when Youk asked about the teachings of her religion, Islam, in relation to forgiveness. You could see in her face that she knew from her life experiences and religious beliefs that she was supposed to grant forgiveness, but she was simply incapable of granting it. This exchange led to a concise answer when asked about what type of reparations the court could provide: None. Any reparation would be insufficient because the damage done to her life was irreparable – she would never have her family back.
The group’s openness and willingness to share their opinions and stories waivered at times, but many in the group welcomed the opportunity to share their experiences with the DC-Cam staff and the younger generations in attendance. The mere fact that we had all gathered – Khmer, Cham, American, etc., to distribute and receive the first ever textbook about the Khmer Rouge – seemed to instill a confidence in their storytelling that would have presumably been absent in a small group. The process of gathering everyone for this occasion appeared to validate their stories, validate their waiting for so many years for someone to recognize what had occurred to the Cham Muslims. This validation was most salient when Youk invited one of the younger members of the group to read a portion of the textbook that recounted the experiences of Cham Muslims during the reign of the Khmer Rouge. After finding a young person that was capable – and willing – to read, the group listened intently as the young man read to the group about the treatment of Cham Muslims. Even the teenagers in the crowd were attentive, implicitly acknowledging that the stories they had been told by the older generations were in fact true and are now enshrined in a book that would be read all over Cambodia and the world. This observation was further supported by villagers’ oral affirmation that the accounts in the textbook were accurate.
What I imagined would be an extremely painful task of survivors recounting their experiences, proved to be a cathartic release for the elderly and a stark realization or reminder to the youth that all of those events did in fact happen to their family members and neighbors. Some observers have argued that discussions of such a painful and traumatizing nature should only be done under the supervision of a psychiatric doctor. However, in a community such as the one we visited, I feel the group discussion was an appropriate vehicle, allowing for a release and an acknowledgement of the victim’s pain, while in turn reminding the younger villagers of their community’s past. While some of the Tadib villagers will never heal – or cannot heal – they realized the benefit of sharing their stories with their community. After the distribution of the textbooks, the villagers present at Nurul-Ihshan Mosque departed with a tangible affirmation of what happened during the Khmer Rouge regime. They also left with the knowledge that Cambodians throughout the country will be reading a textbook that tells a part of a dark corner of Cambodian history from the Cham Muslim perspective. While validation is neither reconciliation nor forgiveness, for a day, their stories were validated and now a piece of their story is part of how Cambodians will be taught about the Khmer Rouge period.
Tulane Law School, USA
Due to the extensive flooding in Kampot Province on 13 July 2009, the DC-Cam staff and legal associates arrived at Nurul-Ihshan Mosque in Tadib village slightly later than the scheduled eight o’clock start time. However, the flooding did not deter approximately two hundred villagers from attending our discussion on the Cham-Muslim experience during the Khmer Rouge period. The villagers sat on the floor, distinctly separated into male and female sections, with the older villagers near the front. I sat near a group of elderly women whose facial features – round faces and softer skin tones – initially struck me as unique. The organizer of the event, Farina So of DC-Cam, explained to me that this was a result of their Cham (Northern Vietnam) and Javanese ( Indonesia ) descent.
After an initial introduction by Farina, Youk Chhang asked that the group move in closer to promote a more intimate discussion. Thanks to the interpretation by Sayana Ser of DC-Cam, I was able to follow most of the morning’s discussions. Engaging primarily the elderly women, Youk first explained the developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and asked the villagers if they were interested in attending the ECCC for a day to observe the Duch trial. Although initially timid, around twenty individuals eventually raised their hands, the majority of whom were women. While not necessarily concerned with the proceedings before the ECCC, one woman explained that she wanted to attend the trial to see the face of the man who carried out such horrible atrocities, Duch. Others desired to attend the proceedings to confirm that after thirty years the perpetrators are being held responsible.
Based solely on the speakers’ body language, facial expressions, and frequent laughing, I imagined the victims were relating positive or humorous anecdotes. However, once Sayana began to translate one woman’s story concerning the murder and starvation of her relatives – from her sisters to her grandparents to her uncle – by the Khmer Rouge, I was struck by the woman’s cheerful demeanor as she recalled these tragedies. As a Westerner, I realized how differently Cambodians express their grief and tragedy. A tragic story in the West is often coupled with visible anguish and tears, whereas this woman conveyed her loss through nervous laughter and a smile. When Youk inquired into her ability to forgive the perpetrators, she flatly rejected the possibility of forgiveness. Her rejection persisted even when Youk asked about the teachings of her religion, Islam, in relation to forgiveness. You could see in her face that she knew from her life experiences and religious beliefs that she was supposed to grant forgiveness, but she was simply incapable of granting it. This exchange led to a concise answer when asked about what type of reparations the court could provide: None. Any reparation would be insufficient because the damage done to her life was irreparable – she would never have her family back.
The group’s openness and willingness to share their opinions and stories waivered at times, but many in the group welcomed the opportunity to share their experiences with the DC-Cam staff and the younger generations in attendance. The mere fact that we had all gathered – Khmer, Cham, American, etc., to distribute and receive the first ever textbook about the Khmer Rouge – seemed to instill a confidence in their storytelling that would have presumably been absent in a small group. The process of gathering everyone for this occasion appeared to validate their stories, validate their waiting for so many years for someone to recognize what had occurred to the Cham Muslims. This validation was most salient when Youk invited one of the younger members of the group to read a portion of the textbook that recounted the experiences of Cham Muslims during the reign of the Khmer Rouge. After finding a young person that was capable – and willing – to read, the group listened intently as the young man read to the group about the treatment of Cham Muslims. Even the teenagers in the crowd were attentive, implicitly acknowledging that the stories they had been told by the older generations were in fact true and are now enshrined in a book that would be read all over Cambodia and the world. This observation was further supported by villagers’ oral affirmation that the accounts in the textbook were accurate.
What I imagined would be an extremely painful task of survivors recounting their experiences, proved to be a cathartic release for the elderly and a stark realization or reminder to the youth that all of those events did in fact happen to their family members and neighbors. Some observers have argued that discussions of such a painful and traumatizing nature should only be done under the supervision of a psychiatric doctor. However, in a community such as the one we visited, I feel the group discussion was an appropriate vehicle, allowing for a release and an acknowledgement of the victim’s pain, while in turn reminding the younger villagers of their community’s past. While some of the Tadib villagers will never heal – or cannot heal – they realized the benefit of sharing their stories with their community. After the distribution of the textbooks, the villagers present at Nurul-Ihshan Mosque departed with a tangible affirmation of what happened during the Khmer Rouge regime. They also left with the knowledge that Cambodians throughout the country will be reading a textbook that tells a part of a dark corner of Cambodian history from the Cham Muslim perspective. While validation is neither reconciliation nor forgiveness, for a day, their stories were validated and now a piece of their story is part of how Cambodians will be taught about the Khmer Rouge period.
Youth Festival ‘09
By Tony Nguyen
Rutgers University, USA
Volunteer, Documentation Center of Cambodia
The 8th Annual Youth Festival was held this past weekend from July 18-19, in the city of Kampong Cham . The Youth Festival was made possible by the organization and sponsorship of local NGO Youth Council of Cambodia (YCC), International Republican Institute (IRI), and United States Agency for International Development (USAID). This is the second time that the Kampong Cham has hosted this particular grand event but is far from foreign for holding such spectacular occasions. Last year, MTV’s EXIT, sponsored by the U.S. Embassy, MTV Europe, and the Royal Government of Cambodia's National Task Force on Human Trafficking held a series of concerts and events in Kampong Cham to raise awareness about the issue of human trafficking across the country. The attendance level of that event reached somewhere close to 30,000 people. The Youth Festival’s attendance was not as immense as MTV Exit last year, but the excitement and enthusiasm provided by the participants, makes it a noble comparison.
The key focus of the festival is to reach out and emphasize to the youth, which consist of an enormous 70 percent of Cambodia ’s population, about importance of education in government and how it will contribute to the development of the country. Lux Mean, IRI’s Program Officer feels that the youth is very limited when it comes to local and government’s participation and practices. He hopes that this event will “give the youth more practice in a social democracy and experience in organization” Moreover, he wants the “youth to obtain the knowledge of the government system”
The education of democracy and government is evidently limited in the Cambodian school system. When Tiem Soroeun, a 12th grade high school student from Kampong Cham, was asked to define and describe democracy, she responded, “It is the freedom to speak”. She could not give any further information because that was everything she could retain from school teaching. Yes, democracy comprise of freedom of speech. But what about all the other right and sovereignty democracy offer? The urgency for youth education with involvement is at its highest point now more than ever.
In an effort to achieve this goal, the festival was filled with many fun and educational activities. The fun is necessary to keep the youth interested and engaged in the activities while teaching them indirectly. Games, team workshops, and seminars were some of the activities held throughout the whole day. Visitors can participate in a fun blindfolding pot breaking game or a political quiz game. Events that drew in hundred of people were the singing and acting competition. Amateur singers from the area were given opportunities to demonstrate their singing capacities. There was a boy as young as five years old who singing fearlessly when he stepped on stage for the mass crowd.
Another great activity to be apart of was the team debate seminar. While in front of a visiting crowd, two teams of students are given an unknown topic to debate against each other, one pro and the other con. They argue for a period of time until they are stopped by the conductor of the event. After that takes place, the crowd decides and votes for whom they believe the winner is. This is one of the better exercises because it involves critical thinking, public speaking, crowd participation and voting.
There are wide varieties of seminars which you can participate in, so the choice is on based on your own interest. A helpful seminar that students should take advantage of was the newly formed organization called STUDENTs. The group’s goal is to train students in a step by step process to find jobs and scholarships after high school. After finishing school, many students are clueless on what next in line for them. It is in STUDENTs best intentions to lead students down the right direction.
STUDENTs was one of many private companies that was apart of the exhibition. Numerous universities, private association, and NGO organization took part in the exhibition as well.
The Youth Festival invites organizations from all around the country to showcase their fields and specialties. Mas Pon Thyroth, YCC’s Program Coordination, believes that “YCC and the supporting organization can benefit from each other.” Each one of their presentation offers students something new and different, giving them options when it comes to learning what truly like. Furthermore, the most important goal of their collaboration is for “the youth to benefit from it all”. So she urges to the youth take time to explore and be exposed to these diverse exhibitions.
The weather during the two days was unpredictable. Most of the day was tremendously hot with the constant sun beaming down on the field. Still, it was not a surprise to feel a bit of rain here and there because it is Monsoon season. On Saturday, the festival was hit by a powerful tropical storm that flipped it upside down. Booths, roofs, signs and towers all fell over because of devastation of the storm. People were running left and right in panic for cover. The whole experience was indescribable; you just have to be there to know. After the storm has passed, the people carried on with the spirit of the festival and its entire livelihood.
Walking around, you cannot help but to feel as though you were in a shopping center. In every other booth there was some sort of product or service to be sold. Companies such as Cellular, FILA Cosmetic, UFC, and ANZ Bank were to a great extent apart of the event as seminar booths. They had many great promotions to advertise along with free materials to give out. Their effort turned out to be a huge successful for the reason that everywhere you look, there was at least one person wearing or drinking their product. However, there were times while they were promoting their product or play music through the loud speaker, the noise became unbearable. In addition, when each one of the booths’ loud speakers are on at the same time, it was just became a nuisance to be in that specific area.
The local community of Kampong Cham also benefited greatly from the YCC Festival. Street food vendors poured into the area with their business offering great distinctive Cambodian food and treats. On the outskirts of the stadium wall were fun and thrilling games to play. Costing only 1000 riel a dart, contestants were challenged to try their luck of throwing the dart to hit one of the balloons on the wall. If you so happen to get lucky from hitting the balloon, you will be allowed to choose from a selection of prizes they offer that includes sandals, toy dolls, can sodas, and much more! But beware, some people tend to get lost in the fun that they lose track of how many darts they bought! If you happen to be one of those unfortunate few, you’ll be wondering “Where did all my money go?” Ice creams, fruits, and cold drinks are all highly recommended to cope with the scorching heat of the sun for this outside event.
Every activity that went on was for the youth. On both nights, several famous contemporary singers such as Khemara Sereymon and Sokun-Nisa sang to the crowd of Kampong Cham. At times the streets became so over packed from the condense population that traffic literally halted. A very negative part of the night event was the poor conduction of civilian flow in and out of the stadium. There was only one entrance to enter and leave! This would be a nightmare if extremely serious situation happened.
All in all, the Youth Festival was a great opportunity for youths and adults alike to be a part of all the fun and educational activities. The experience and knowledge that can gain will not only benefit the individual, but the future of Cambodia . Youth Festival is an event that cannot be missed!
Rutgers University, USA
Volunteer, Documentation Center of Cambodia
The 8th Annual Youth Festival was held this past weekend from July 18-19, in the city of Kampong Cham . The Youth Festival was made possible by the organization and sponsorship of local NGO Youth Council of Cambodia (YCC), International Republican Institute (IRI), and United States Agency for International Development (USAID). This is the second time that the Kampong Cham has hosted this particular grand event but is far from foreign for holding such spectacular occasions. Last year, MTV’s EXIT, sponsored by the U.S. Embassy, MTV Europe, and the Royal Government of Cambodia's National Task Force on Human Trafficking held a series of concerts and events in Kampong Cham to raise awareness about the issue of human trafficking across the country. The attendance level of that event reached somewhere close to 30,000 people. The Youth Festival’s attendance was not as immense as MTV Exit last year, but the excitement and enthusiasm provided by the participants, makes it a noble comparison.
The key focus of the festival is to reach out and emphasize to the youth, which consist of an enormous 70 percent of Cambodia ’s population, about importance of education in government and how it will contribute to the development of the country. Lux Mean, IRI’s Program Officer feels that the youth is very limited when it comes to local and government’s participation and practices. He hopes that this event will “give the youth more practice in a social democracy and experience in organization” Moreover, he wants the “youth to obtain the knowledge of the government system”
The education of democracy and government is evidently limited in the Cambodian school system. When Tiem Soroeun, a 12th grade high school student from Kampong Cham, was asked to define and describe democracy, she responded, “It is the freedom to speak”. She could not give any further information because that was everything she could retain from school teaching. Yes, democracy comprise of freedom of speech. But what about all the other right and sovereignty democracy offer? The urgency for youth education with involvement is at its highest point now more than ever.
In an effort to achieve this goal, the festival was filled with many fun and educational activities. The fun is necessary to keep the youth interested and engaged in the activities while teaching them indirectly. Games, team workshops, and seminars were some of the activities held throughout the whole day. Visitors can participate in a fun blindfolding pot breaking game or a political quiz game. Events that drew in hundred of people were the singing and acting competition. Amateur singers from the area were given opportunities to demonstrate their singing capacities. There was a boy as young as five years old who singing fearlessly when he stepped on stage for the mass crowd.
Another great activity to be apart of was the team debate seminar. While in front of a visiting crowd, two teams of students are given an unknown topic to debate against each other, one pro and the other con. They argue for a period of time until they are stopped by the conductor of the event. After that takes place, the crowd decides and votes for whom they believe the winner is. This is one of the better exercises because it involves critical thinking, public speaking, crowd participation and voting.
There are wide varieties of seminars which you can participate in, so the choice is on based on your own interest. A helpful seminar that students should take advantage of was the newly formed organization called STUDENTs. The group’s goal is to train students in a step by step process to find jobs and scholarships after high school. After finishing school, many students are clueless on what next in line for them. It is in STUDENTs best intentions to lead students down the right direction.
STUDENTs was one of many private companies that was apart of the exhibition. Numerous universities, private association, and NGO organization took part in the exhibition as well.
The Youth Festival invites organizations from all around the country to showcase their fields and specialties. Mas Pon Thyroth, YCC’s Program Coordination, believes that “YCC and the supporting organization can benefit from each other.” Each one of their presentation offers students something new and different, giving them options when it comes to learning what truly like. Furthermore, the most important goal of their collaboration is for “the youth to benefit from it all”. So she urges to the youth take time to explore and be exposed to these diverse exhibitions.
The weather during the two days was unpredictable. Most of the day was tremendously hot with the constant sun beaming down on the field. Still, it was not a surprise to feel a bit of rain here and there because it is Monsoon season. On Saturday, the festival was hit by a powerful tropical storm that flipped it upside down. Booths, roofs, signs and towers all fell over because of devastation of the storm. People were running left and right in panic for cover. The whole experience was indescribable; you just have to be there to know. After the storm has passed, the people carried on with the spirit of the festival and its entire livelihood.
Walking around, you cannot help but to feel as though you were in a shopping center. In every other booth there was some sort of product or service to be sold. Companies such as Cellular, FILA Cosmetic, UFC, and ANZ Bank were to a great extent apart of the event as seminar booths. They had many great promotions to advertise along with free materials to give out. Their effort turned out to be a huge successful for the reason that everywhere you look, there was at least one person wearing or drinking their product. However, there were times while they were promoting their product or play music through the loud speaker, the noise became unbearable. In addition, when each one of the booths’ loud speakers are on at the same time, it was just became a nuisance to be in that specific area.
The local community of Kampong Cham also benefited greatly from the YCC Festival. Street food vendors poured into the area with their business offering great distinctive Cambodian food and treats. On the outskirts of the stadium wall were fun and thrilling games to play. Costing only 1000 riel a dart, contestants were challenged to try their luck of throwing the dart to hit one of the balloons on the wall. If you so happen to get lucky from hitting the balloon, you will be allowed to choose from a selection of prizes they offer that includes sandals, toy dolls, can sodas, and much more! But beware, some people tend to get lost in the fun that they lose track of how many darts they bought! If you happen to be one of those unfortunate few, you’ll be wondering “Where did all my money go?” Ice creams, fruits, and cold drinks are all highly recommended to cope with the scorching heat of the sun for this outside event.
Every activity that went on was for the youth. On both nights, several famous contemporary singers such as Khemara Sereymon and Sokun-Nisa sang to the crowd of Kampong Cham. At times the streets became so over packed from the condense population that traffic literally halted. A very negative part of the night event was the poor conduction of civilian flow in and out of the stadium. There was only one entrance to enter and leave! This would be a nightmare if extremely serious situation happened.
All in all, the Youth Festival was a great opportunity for youths and adults alike to be a part of all the fun and educational activities. The experience and knowledge that can gain will not only benefit the individual, but the future of Cambodia . Youth Festival is an event that cannot be missed!
A WITNESS ON TRIAL
July 20, 2009
By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law
The ECCC’s ability to contribute toward education and reconciliation was
apparent today as hundreds of students and adults were welcomed as guests of
the court. Before proceedings began, ECCC representatives also took time to
explain the basic mechanics of the court to the crowd, so that they might
better understand what they were about to witness.
Trial proceedings picked up with more testimony from Him Huy, a former
prison guard at S-21 who had been under the command of the accused, Kaing
Guek Eav (alias Duch), during the Khmer Rouge era. Before any questions were
asked, the witness was reminded by the court, after a request by the
prosecution, that he had the right to refuse answering any questions that
were self-incriminating.
The day began with questions from the prosecution focused on daily
operations at S-21. While working at the prison, Him Huy had the key
responsibility to assist with the reception and processing of incoming
prisoners. When asked where his instructions came from, the witness
testified that he took orders directly from his superior, Brother Hor, but
that Duch made all of the decisions about who was to be arrested,
interrogated, and executed. The witness also gave testimony that seemed to
indicate Duch may have helped develop propaganda to fuel support for the
Khmer Rouge regime. Regarding the treatment of Vietnamese prisoners, Him Huy
testified that he had seen many of these prisoners forced to dress in their
soldier uniforms and photographed while standing in the street, and that
their confessions from interrogations were publically broadcast on the
radio. Much of this testimony proved beneficial to the prosecution, which
has sought to portray Duch's role in the Khmer Rouge regime as an active
instigator of war crimes and crimes against humanity.
The Deputy Co-Prosecutor, William Smith, also asked a series of questions
related to the relationship between Duch and the staff at S-21. Him Huy
described Duch’s management style as “meticulous and firm,” saying Duch
decided everything and the entire staff strictly obeyed him. The witness
explained that the S-21 staff felt threatened by Duch and obeyed him as best
they could for fear of their lives. The witness went on to say that he was
so frightened he did not even think it was safe to get married because it
increased the likelihood of dying. He said that when one person was accused
of being an enemy, he and his entire family typically were killed, so he
thought it was safer to be alone. He finished by saying that, even today in
court, Duch’s presence scares him.
After the Co-Prosecutors concluded, it was the Civil Party’s turn to put
questions to the witness. Alain Werner from Civil Party Group 1 began with a
series of questions further delving into Duch’s involvement with
discretionary decision-making at S-21. But the focus quickly shifted away
from Duch and onto the witness’s criminal culpability when Silke Studzinsky,
with Group 2, began asking him about his own involvement with the tortures
and executions. Trying to emphasize the human element of the testimony,
Studzinsky began her questions by reminding the witness that victims were in
the court and asked him to remember his responsibility to contribute toward
reconciliation.
Lawyers from Groups 2 and 3 solicited further descriptions of detainee
treatment from the witness, who affirmed that prisoners were housed and
tortured in their underwear and children were killed along with their
parents. Hong Kim Suon with Group 4 concluded the Civil Party’s time by
framing the witness as a docile subordinate of Duch implementing his orders.
When asked how he received his instructions for incoming detainees, Him Huy
said that he would receive a list of names that Duch put together. When
asked why he implemented orders so blindly, Him Huy reiterated the fear that
Duch imposed on S-21, saying that one mistake would have cost him his life.
Before the defense began their questioning, Duch gave a statement concerning
his response to the witness’s testimony. Although equivocal, Duch said that
Him Huy’s testimony was “basically true…although there are some small
omissions…but they don’t matter”. Most significantly, Duch accepted
responsibility by saying that all of Him Huy’s crimes resulted from
following Duch’s orders.
Despite the gesture by Duch to assume superior responsibility, the defense
spent their time with the witness trying to frame an analogy between the
witness and the accused. In response to defense counsel Roux’s questioning,
the witness testified to being in charge of 11 to 12 people and that, in his
role as a superior in that group, he implemented orders to transport
detainees from S-21 to Choeung Ek for execution. Roux finished by asking the
witness if he agreed that the Khmer Rouge movement was so successful because
everyone was blindly implementing orders from the Central Committee. Him Huy
agreed. Although Roux did not say so, his questioning probably left the
court pondering the circumstances of both the witness (Him Huy) and the
defendant (Duch). By showing that both Him Huy and Duch regularly acted as
intermediaries, taking orders from superiors and implementing them through
subordinates, Roux left one wondering why the two held such different roles
in the eyes of the court and the public.
By Charles Jackson, Legal Intern with the Documentation Center of Cambodia
and Candidate for J.D. 2011, Northwestern University School of Law
The ECCC’s ability to contribute toward education and reconciliation was
apparent today as hundreds of students and adults were welcomed as guests of
the court. Before proceedings began, ECCC representatives also took time to
explain the basic mechanics of the court to the crowd, so that they might
better understand what they were about to witness.
Trial proceedings picked up with more testimony from Him Huy, a former
prison guard at S-21 who had been under the command of the accused, Kaing
Guek Eav (alias Duch), during the Khmer Rouge era. Before any questions were
asked, the witness was reminded by the court, after a request by the
prosecution, that he had the right to refuse answering any questions that
were self-incriminating.
The day began with questions from the prosecution focused on daily
operations at S-21. While working at the prison, Him Huy had the key
responsibility to assist with the reception and processing of incoming
prisoners. When asked where his instructions came from, the witness
testified that he took orders directly from his superior, Brother Hor, but
that Duch made all of the decisions about who was to be arrested,
interrogated, and executed. The witness also gave testimony that seemed to
indicate Duch may have helped develop propaganda to fuel support for the
Khmer Rouge regime. Regarding the treatment of Vietnamese prisoners, Him Huy
testified that he had seen many of these prisoners forced to dress in their
soldier uniforms and photographed while standing in the street, and that
their confessions from interrogations were publically broadcast on the
radio. Much of this testimony proved beneficial to the prosecution, which
has sought to portray Duch's role in the Khmer Rouge regime as an active
instigator of war crimes and crimes against humanity.
The Deputy Co-Prosecutor, William Smith, also asked a series of questions
related to the relationship between Duch and the staff at S-21. Him Huy
described Duch’s management style as “meticulous and firm,” saying Duch
decided everything and the entire staff strictly obeyed him. The witness
explained that the S-21 staff felt threatened by Duch and obeyed him as best
they could for fear of their lives. The witness went on to say that he was
so frightened he did not even think it was safe to get married because it
increased the likelihood of dying. He said that when one person was accused
of being an enemy, he and his entire family typically were killed, so he
thought it was safer to be alone. He finished by saying that, even today in
court, Duch’s presence scares him.
After the Co-Prosecutors concluded, it was the Civil Party’s turn to put
questions to the witness. Alain Werner from Civil Party Group 1 began with a
series of questions further delving into Duch’s involvement with
discretionary decision-making at S-21. But the focus quickly shifted away
from Duch and onto the witness’s criminal culpability when Silke Studzinsky,
with Group 2, began asking him about his own involvement with the tortures
and executions. Trying to emphasize the human element of the testimony,
Studzinsky began her questions by reminding the witness that victims were in
the court and asked him to remember his responsibility to contribute toward
reconciliation.
Lawyers from Groups 2 and 3 solicited further descriptions of detainee
treatment from the witness, who affirmed that prisoners were housed and
tortured in their underwear and children were killed along with their
parents. Hong Kim Suon with Group 4 concluded the Civil Party’s time by
framing the witness as a docile subordinate of Duch implementing his orders.
When asked how he received his instructions for incoming detainees, Him Huy
said that he would receive a list of names that Duch put together. When
asked why he implemented orders so blindly, Him Huy reiterated the fear that
Duch imposed on S-21, saying that one mistake would have cost him his life.
Before the defense began their questioning, Duch gave a statement concerning
his response to the witness’s testimony. Although equivocal, Duch said that
Him Huy’s testimony was “basically true…although there are some small
omissions…but they don’t matter”. Most significantly, Duch accepted
responsibility by saying that all of Him Huy’s crimes resulted from
following Duch’s orders.
Despite the gesture by Duch to assume superior responsibility, the defense
spent their time with the witness trying to frame an analogy between the
witness and the accused. In response to defense counsel Roux’s questioning,
the witness testified to being in charge of 11 to 12 people and that, in his
role as a superior in that group, he implemented orders to transport
detainees from S-21 to Choeung Ek for execution. Roux finished by asking the
witness if he agreed that the Khmer Rouge movement was so successful because
everyone was blindly implementing orders from the Central Committee. Him Huy
agreed. Although Roux did not say so, his questioning probably left the
court pondering the circumstances of both the witness (Him Huy) and the
defendant (Duch). By showing that both Him Huy and Duch regularly acted as
intermediaries, taking orders from superiors and implementing them through
subordinates, Roux left one wondering why the two held such different roles
in the eyes of the court and the public.
Ordinary People and Extraordinary Crimes
Toni Holness
Temple University, USA
When ordinary people suffer extraordinary crimes, the task of remedying the loss demands extraordinary strength from the victim. Normally, a victim finds solace in the knowledge that the perpetrator will be punished and that the perpetrator’s punishment reflects the degree of the victim’s suffering. However, in the case of genocide, what punishment is proportional to mass murder? And what measures can ever bring solace to the victims?
On August 13, the DC-Cam staff set out to spread the word about the ongoing Khmer Rouge trials to a Cham-Muslim community in Kampot province. Inquisitive stares, nervous fidgeting and anxious whispers filled the air in the communal meeting hall, which housed over one hundred community members. DC-Cam staffer, Farina So, quickly allayed the community’s anxiety with a warm welcoming message and then handed the microphone to executive director, Youk Chhang. The exchange that ensued between Chhang and the community was not only unexpected, it was fascinating.
Ordinary Victims and Perpetrators
The countless books and scholarly writings on the Khmer Rouge create an expectation of momentousness, one might expect to find a spectacle in the victims of Cambodia ’s gruesome genocide. After all, it was only thirty years ago that more than one fifth of Cambodia ’s citizenry were brutally murdered. However, the Cham Muslim survivors were anything but spectacular, they were incredibly ordinary. In fact, their ordinariness was overwhelming. The Khmer Rouge victims, much like Duch (the defendant now on trial at the ECCC), are ordinary people with an extraordinary story.
Chhang pointedly asked the attendees if they wanted to watch the ongoing trials. One community member responded with a resounding “yes”. Referring to Duch, she said she wanted to “see his face, to see how he could be so brutal.” She might be disappointed to find that Duch’s face, like the faces of the other defendants and like the community member herself, is ordinary. The extraordinary crimes committed during Khmer Rouge were executed by ordinary people. The ordinariness of both victims and perpetrators begs the question: how can ordinary people overcome such extraordinary suffering?
“The weak can never forgive. Forgiveness is the attribute of the strong”- Gandhi
Chhang followed up his initial question by asking community members what result they hoped the tribunal would reach in Duch’s trial. One lady stated that she wanted “the punishment to equal [her] suffering.” Chhang responded that, unfortunately, such a result is impossible. While some community members recognized the need to forgive the perpetrators, in accordance with Islamic teaching, others opined that the magnitude of the crimes rendered forgiveness impossible.
Mahatma Gandhi famously stated, “The weak can never forgive.” Cambodians, however, are not weak. In fact, their very survival of the Khmer Rouge attests to their resilience. Cambodian social fabric, however, remains broken. Although efforts by NGOs and community leaders like DC-Cam and Youk Chhang have been instrumental in doctoring the nation’s wounds, Cambodia is far from healed. It seems that the Cambodian people can only regain the necessary strength to forgive Khmer Rouge leaders if the social fabric of Cambodian society is repaired. As long as Cambodia , as a nation, remains weak, forgiveness and reconciliation may remain elusive.
Reconciliation, therefore, is beyond the mandate and capacity of the ECCC. The extraordinary feat facing Cambodians is that they must look within their very ordinary selves to rebuild the national identity, find the strength to move past their terrible suffering and look toward a future that could be extraordinarily promising.
Temple University, USA
When ordinary people suffer extraordinary crimes, the task of remedying the loss demands extraordinary strength from the victim. Normally, a victim finds solace in the knowledge that the perpetrator will be punished and that the perpetrator’s punishment reflects the degree of the victim’s suffering. However, in the case of genocide, what punishment is proportional to mass murder? And what measures can ever bring solace to the victims?
On August 13, the DC-Cam staff set out to spread the word about the ongoing Khmer Rouge trials to a Cham-Muslim community in Kampot province. Inquisitive stares, nervous fidgeting and anxious whispers filled the air in the communal meeting hall, which housed over one hundred community members. DC-Cam staffer, Farina So, quickly allayed the community’s anxiety with a warm welcoming message and then handed the microphone to executive director, Youk Chhang. The exchange that ensued between Chhang and the community was not only unexpected, it was fascinating.
Ordinary Victims and Perpetrators
The countless books and scholarly writings on the Khmer Rouge create an expectation of momentousness, one might expect to find a spectacle in the victims of Cambodia ’s gruesome genocide. After all, it was only thirty years ago that more than one fifth of Cambodia ’s citizenry were brutally murdered. However, the Cham Muslim survivors were anything but spectacular, they were incredibly ordinary. In fact, their ordinariness was overwhelming. The Khmer Rouge victims, much like Duch (the defendant now on trial at the ECCC), are ordinary people with an extraordinary story.
Chhang pointedly asked the attendees if they wanted to watch the ongoing trials. One community member responded with a resounding “yes”. Referring to Duch, she said she wanted to “see his face, to see how he could be so brutal.” She might be disappointed to find that Duch’s face, like the faces of the other defendants and like the community member herself, is ordinary. The extraordinary crimes committed during Khmer Rouge were executed by ordinary people. The ordinariness of both victims and perpetrators begs the question: how can ordinary people overcome such extraordinary suffering?
“The weak can never forgive. Forgiveness is the attribute of the strong”- Gandhi
Chhang followed up his initial question by asking community members what result they hoped the tribunal would reach in Duch’s trial. One lady stated that she wanted “the punishment to equal [her] suffering.” Chhang responded that, unfortunately, such a result is impossible. While some community members recognized the need to forgive the perpetrators, in accordance with Islamic teaching, others opined that the magnitude of the crimes rendered forgiveness impossible.
Mahatma Gandhi famously stated, “The weak can never forgive.” Cambodians, however, are not weak. In fact, their very survival of the Khmer Rouge attests to their resilience. Cambodian social fabric, however, remains broken. Although efforts by NGOs and community leaders like DC-Cam and Youk Chhang have been instrumental in doctoring the nation’s wounds, Cambodia is far from healed. It seems that the Cambodian people can only regain the necessary strength to forgive Khmer Rouge leaders if the social fabric of Cambodian society is repaired. As long as Cambodia , as a nation, remains weak, forgiveness and reconciliation may remain elusive.
Reconciliation, therefore, is beyond the mandate and capacity of the ECCC. The extraordinary feat facing Cambodians is that they must look within their very ordinary selves to rebuild the national identity, find the strength to move past their terrible suffering and look toward a future that could be extraordinarily promising.
Sunday, July 19, 2009
On Trial: The Khmer Rouge Accountability Process
By
John D. Ciorciari
This paper discusses the Extraordinary Chambers in the Courts of Cambodia (ECCC), better known as the Khmer Rouge Tribunal. The ECCC is a special judicial body housed in a revamped military building complex on the western edge of Phnom Penh . It is a hybrid or “mixed” tribunal, established and operated by officials of the United Nations and Royal Cambodian Government. Since opening its doors in 2006, the ECCC has been entrusted with the monumental task of conducting criminal trials and delivering a measure of justice to the victims of Khmer Rouge misrule. I briefly discuss some of the forces that drove the tribunal’s creation, analyze its basic legal and institutional features, assess its progress to date, and discuss its potential to contribute to justice and reconciliation in Cambodia .
Why the ECCC is So Important
The ECCC is an institution with profound moral, legal, political, and even educational significance. It represents the latest stage in a long, tortuous process of dealing with the Khmer Rouge legacy in Cambodia . Between April 17, 1975 and January 6, 1979, the Khmer Rouge regime ruled Cambodia with an iron fist, renaming it “Democratic Kampuchea” (DK) and implementing an infernal reign of terror. Khmer Rouge atrocities are not simply shards from the country’s shattered past. They continue to haunt countless Cambodians today and contribute to unhealthy divides in Cambodian society and politics. After three decades of waiting, Cambodians have an opportunity to pursue a modicum of justice and take another important step toward reconciliation.
The atrocities committed in Democratic Kampuchea are certainly not the only past wrongs casting shadows over modern Cambodian society. They were embedded within decades of conflict that involved abuses by myriad domestic and foreign actors. Nevertheless, the Pol Pot era was the most gruesome, savage, and shocking act in that tragedy. Nothing will erase survivors’ pain, but to the ECCC’s many supporters, the Khmer Rouge trials represent an indispensable stand against impunity that can help Cambodians come to terms with the past and move on with their lives.
Challenging Impunity
The single greatest reason for holding the Khmer Rouge trials is to deliver a measure of justice to a society that has suffered impunity for too long. In January 1979, when the overthrow of the DK regime raised the curtain around Cambodia , official documents and physical evidence revealed abuse on a staggering scale. The Cambodian countryside is still littered with the remains of Khmer Rouge brutality. Makeshift prisons, rusting torture devices, and thousands of mass burial pits provide daily reminders to Cambodians of the agony that they or their parents suffered during the Pol Pot period. The Documentation Center of Cambodia (DC-Cam) has identified roughly 20,000 mass graves and almost 200 former Khmer Rouge detention centers across the country, many with chilling remains of makeshift torture devices.
Most scholars believe that the Khmer Rouge regime consumed somewhere between one fifth and one third of the country’s population. In fact, the piles of human remains are so vast, and survivors’ accounts so abundant, that the world may never have an accurate estimate of the carnage. Even that shocking death toll paints only part of the picture; the Khmer Rouge tragedy can never be reduced to mere statistics. Every individual life lost was a father or mother, sister or brother, son or daughter, husband or wife, friend or companion. While the sheer number of Khmer Rouge crimes demands justice, the stories of individual victims issue even more powerful pleas.
Documents and abundant witness testimony tell of unimaginable suffering and cruelty. Khmer Rouge cadres required villagers to watch as their loved ones faced firing squads for the most trivial or arbitrary offenses, such as stealing rice or vegetables to avoid starvation. Some pregnant women, accused of ill-defined “anti-revolutionary” behavior, were strung up and disemboweled for all to see. Witnesses even tell of Khmer Rouge soldiers tossing infants into the air and catching their live bodies on bayonets. In makeshift prisons, Khmer Rouge interrogators tested baseless accusations of espionage or subversion by strapping their victims to rusty bed frames, burning them with embers, ripping off their fingernails, and dunking them in cold water to the point of drowning. Without ever facing trials, countless prisoners were taken to mass burial pits, where Khmer Rouge executioners killed them with axe-handles to avoid wasting precious bullets.
Those who avoided untimely death fared little better. Rampant rape and religious persecution plagued the country. Sick and elderly Cambodians endured endless hours of forced labor, occasionally unearthing the corpses and bones of their lost loved ones as they toiled in the field. Most ordinary people slaved away, furtively eating bugs and bark to stay alive, wondering if they would ever see their families again. The regime denied them even the most basic rights of worship, free expression, and intimacy. Children learned in school to disavow their parents and devote their lives only to Angkar (the “Organization.”) Indoctrinated to kill, those young cadres were criminal perpetrators, but in many respects they were victims of the regime as well. The scars of the DK era run deep.
Until quite recently, even the most senior surviving architects of Democratic Kampuchea walked about freely. Some lived in comfortable villas while their victims wrestled with the demons of the past. The ECCC provides a long-overdue opportunity to challenge that abhorrent legacy of impunity. Three decades after the fall of the Pol Pot regime, no senior Khmer Rouge official has ever been convicted of a crime by a credible court of law. However, that may soon change. Since commencing operations in 2006, tribunal officials have taken a crucial first step against impunity by detaining five former Khmer Rouge officials and charging them with criminal offenses.
The trial of one DK official—Duch, the former chief of the infamous Tuol Sleng Prison in Phnom Penh —has already begun. Four other surviving senior leaders are also in the dock: Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng Thirith. All carried high-ranking titles and were members of the shadowy committees that defined the inner circle of Democratic Kampuchea.
The clock is ticking. Many senior Khmer Rouge leaders have died in the past decade—including Party Secretary Pol Pot, Defense Minister Son Sen, Central Committee member Ta Mok (also known as “the Butcher”), Education Minister Yun Yat, and Zone Commander Ke Pauk. Many second-tier perpetrators of Khmer Rouge terror also lived out their final years in relative comfort without facing so much as a slap on the wrist. All five current defendants are advanced in years, and some or all could pass away or lose their mental capacity before facing legal condemnation. Allowing all Khmer Rouge leaders to pass freely from the scene would be a grave affront to the millions of innocent victims whose lives they tore asunder.
Delivering Justice
For the ECCC to succeed, one thing is clear: it has to deliver a significant measure of justice in the eyes of Cambodians and the international community. Justice is a complex concept, especially in the wake of such wide-ranging atrocities. Conducting a process and producing outcomes that satisfy diverse audiences’ notions of justice will be no easy endeavor. Issuing a few guilty verdicts is certainly not enough. As we will argue, the ECCC needs to prioritize retributive, restorative, and procedural aspects of justice.
Justice means many different things to Cambodians and international observers of the trials. Notions of retributive justice provide much of the foundation for criminal law. The moral logic behind legal retribution is simple: an offender committed a social harm and must be condemned and punished by the state. The ECCC’s success will certainly be judged in part by its ability to issue moral condemnation and mete out punishment where it is due. However, retribution is only one aspect of justice. Victims may derive satisfaction from seeing Khmer Rouge leaders shamed and punished, but even life sentences will hardly make victims whole.
One of the key issues relating to retribution will be the scope of the prosecution. Trying only a handful of leaders means that many mid-level Khmer Rouge officers will go free. So will low-level cadres, who committed an overwhelming majority of the physical abuses that continue to haunt survivors to this day. The United Nations and Cambodian government agreed to prosecute only “senior leaders” and others deemed “most responsible” for the atrocities of the DK era. Like other tribunals, the ECCC has been accused of “selective justice.” The tribunal will not be able to erase all of the impunity that lingers after the DK era but it needs to do its best to identify and successfully prosecute key architects of Khmer Rouge terror.
One problem with focusing on criminal trials and retribution is that even guilty verdicts provide little restorative justice. Throwing a thuggish Khmer Rouge leader in prison does not compensate victims or “restore” their well-being before the crimes in question. Providing restorative justice in a country as badly ravaged as Cambodia is a tall order, but taking some significant steps to address victims’ needs is vital. Victims should, after all, be the primary beneficiaries of the accountability process.
Restorative justice has historically been a weakness of international tribunals, and it represents a special challenge for the ECCC. Money is never a substitute for lost loved ones of serious human rights abuses, but like other tribunals, the ECCC lacks the resources to issue much beyond token financial compensation. The ECCC has taken an innovative approach to restorative justice. It has established a mechanism for civil party participation in the trials and envisioned restorative awards in the form of “collective or moral reparations,” such as memorials to honor victims or centers that provide basic health or educational services to survivors. The success of the ECCC’s restorative efforts will go a long way toward determining public perceptions of the tribunal.
A third imperative feature of the ECCC process is procedural justice. Achieving a just outcome requires holding fair trials. To some observers, it is doubtlessly enervating to watch Khmer Rouge defendants receive basic due process rights that the DK regime so cruelly denied to millions. Most people harbor few doubts that the defendants now in custody are guilty of serious wrongdoing, even if their specific crimes remain unspecified. Some observers would probably consider it just simply to line former Khmer Rouge leaders against a wall and pull the trigger. In the aftermath of any widespread human rights abuses, the thirst for retribution is a powerful and understandable impulse. This is true even in Cambodia , where religious and cultural norms and the passage of time have softened public vindictiveness to some degree.
Nevertheless, defendants’ rights must be respected if the ECCC is to be a model for justice and not a kangaroo court. Every international tribunal since Nuremberg has been lambasted by someone as “victor’s justice” or “show trials.” These critiques are not entirely unfounded—tribunals inevitably do reflect the political realities in which they are created. The best way to reduce the force of such critiques is to promote transparency and fairness. The Nuremberg Tribunal set an important precedent in this regard by acquitting a few Nazi defendants for lack of evidence. Other international tribunals—including those for the former Yugoslavia and Rwanda —have also acquitted some defendants. The ECCC is bound by a complex set of substantive laws, procedural rules, and rules of evidence that are designed to promote fairness. If the ECCC is to set an example of justice, it must stick to them.
Fair trials require that convictions be based on sound legal proof, and even the most odious defendants must be able to mount defenses. Guilty verdicts cannot be foregone conclusions. There is extensive potential evidence available against Khmer Rouge leaders—including official DK documents, witness testimony, and physical remains—but proving individual defendants responsible for particular offenses is not as simple as it may seem. Where particular crimes cannot be proven, defendants have to be acquitted.
Treating Khmer Rouge defendants in this way may be morally or politically tough to swallow, but the ECCC will only fulfill its mandate with an even-handed administration of justice. The ECCC may never be able to provide “complete” retribution or restoration to Cambodians, but it does have control over running a fair process. In addition to setting an example of fairness and transparency, sticking to due process principles can facilitate a useful transfer of knowledge and expertise between Cambodian and international officials that helps to strengthen Cambodia ’s beleaguered and notoriously corrupt judicial system. One tragic legacy of Democratic Kampuchea is that few intellectuals survived the Pol Pot era, leaving the country with a dearth of lawyers and other professionals. Without a critical mass of well-trained judges and lawyers, it is difficult if not impossible to build a strong legal system. The potential for knowledge transfer has been a key justification for the establishment of hybrid tribunals, in Cambodia and in other war-torn states.
The retributive, restorative, and procedural aspects of justice are not mutually exclusive, even if they are sometimes in tension or suggest different ways of using limited resources. Retribution can challenge the culture of impunity and provide moral condemnation of offenders. Proponents of the trials hope it would also deter future criminal behavior and help to uphold the rule of law. Restorative justice can help to repair social and economic damage and thus facilitate reconciliation. Setting an example of procedural fairness can pave the way toward a more robust rule of law, addressing the future as well as the past. In Cambodia , like other societies plagued by mass human rights atrocities, all of these aspects of justice are crucial. The ECCC’s challenge is to optimize them under conditions in which time and money are limited and in which the demands for justice would be difficult for any tribunal to deliver.
Performing a Truth-Telling Function
To many observers, the ECCC also holds the promise to perform an even wider range of functions than running fair trials and issuing verdicts of guilt or innocence. If it conducts its affairs soundly, the tribunal can serve as an invaluable truth-telling mechanism in a country where public education about the Khmer Rouge tragedy has been sorely lacking. Essentially all survivors of the Pol Pot era know that mass human rights abuses occurred between 1975 and 1979, but few know the full extent of the atrocities. Even fewer have the faintest notion of why the Khmer Rouge leaders and cadres inflicted such agony on their own people. In thousands of interviews with DC-Cam, most victims show more interest in seeking an explanation than in seeking revenge. To cope with the past, those who bear the scars of Khmer Rouge rule and lost loved ones want to know why.
In addition to benefiting survivors of Democratic Kampuchea, public dissemination of facts about the Pol Pot period can help their children by showing the need for a just and orderly society and the perils of a breakdown in the rule of law. Most of Cambodia ’s current citizens were born after the Khmers Rouges were thrown from power. They have no first-hand experience of the extraordinary suffering of their parents’ generation. Some young Cambodians hear about the terror from relatives and teachers, but for many others, the period is a darkly shrouded mystery. Without an understanding of the Pol Pot era, many youths have difficulty understanding the psychological, emotional, and social challenges that their elders face.
For years, Cambodian schools offered little if any instruction about the Khmer Rouge period. Only recently have some textbooks been approved and introduced into public school curricula. The ECCC can serve as one credible source of history about the regime, alongside the accounts given in textbooks, museums, and other media. Court reports, media coverage, public visits, and outreach by ECCC and NGO officials can all help to provide answers. Only if they are armed with knowledge of the past can young Cambodians make sense of their country’s troubled history, achieve a greater degree of closure than they have to date, and prepare themselves to prevent human rights abuses in the future.
Setting an International Example
The ECCC also has importance well beyond Cambodia ’s borders. It is one of the most recent embodiments of an expanding international effort to hold venal regimes accountable for their abuses and promote greater respect for basic rights. Since the era of Nuremberg , key members of the international community have worked to devise international proceedings to address the limitations of domestic criminal proceedings in post-conflict societies. During the 1990s, the United Nations established ad hoc international tribunals for the former Yugoslavia and Rwanda and later a permanent International Criminal Court in The Hague .
The UN-administered tribunals have been criticized on a number of grounds, including their cost and their relative distance—geographic and otherwise—from the victimized societies. The ECCC is one of the few examples of an alternative “mixed tribunal” model that involves shared duties between the United Nations and the government of the affected state. Proponents of the model believe mixed tribunals will better enfranchise victims, facilitate transfer of expertise, and deliver justice at a lower cost in countries that need money for many other uses. Opponents of the hybrid court model fear that partnering with suspect governments could water down the trials’ legal and procedural integrity, undermine the UN’s reputation, and reduce the likelihood of credible justice. Some also fear that holding trials locally could reopen old wounds and backfire in the quest for reconciliation. The ECCC’s performance will be a crucial test for the mixed tribunal model.
Affecting Cambodian Politics
The ECCC’s mandate is a legal one, but it has great political relevance in Cambodia as well. In 1979, when the Pol Pot regime was overthrown, a new Vietnamese-backed government took over in Phnom Penh . That government—which renamed the country the People’s Republic of Kampuchea (PRK)—based its claim to power and legitimacy primarily on having saved the country from Khmer Rouge terror. Years later, the PRK leadership founded the Cambodian People’s Party (CPP), which governs Cambodia today. The CPP and its long-time leader, Hun Sen, continue to derive public support by emphasizing their role in purging the country of the Khmer Rouge problem.
Opposition parties, including the royalist Funcinpec, the Sam Rainsy Party, and the Human Rights Party, have attacked that claim and accused the CPP of worsening rather than improving respect for human rights in Cambodia . Some foreign governments and human rights organizations have said the same. The Khmer Rouge trials could indeed have some impact on public perceptions of the CPP. If they proceed well, the CPP will probably reap a modest political benefit. If the trials are botched, they may have an opposite effect. A shoddy process would likely contribute to public and international donor frustration with government—and particularly judicial—corruption in Cambodia . The trials are unlikely to become an existential issue in national politics, as they are sometimes portrayed in the foreign press, but they could generate some meaningful near-term diplomatic and domestic disruptions. That gives them importance well beyond the courtroom.
Overall: A Herculean Set of Tasks
The goals above are a tremendous amount to ask of a single tribunal. One of the ECCC’s greatest challenges is to manage public expectations about what it can realistically accomplish. Even if the tribunal is wildly successful, a series of criminal trials will be no panacea. The ECCC cannot cure all of the ills of a society struggling to overcome mass atrocities. It cannot replace lost loved ones, and it cannot rectify all of the political and economic problems that flow from the Khmer Rouge reign of terror. It cannot alone transform Cambodian governance, put an end to criminality and corruption, bring about a major improvement in contemporary human rights in Cambodia , or address a host of other developmental needs.
The tribunal’s importance lies more in its ability to serve as a catalyst and bellwether for change in Cambodia . It can become a necessary, highly visible step toward a more promising future by challenging impunity, setting an example of a just trial, sharing information about the Pol Pot period, and drawing attention to victims’ needs. The ECCC can also focus renewed domestic and international attention on issues of governance and human rights and increase the prospects for future progress. If it performs all of these functions ably, the ECCC will have done a great service indeed.
The ECCC’s Background and Progress to Date
The next section briefly discusses the ECCC’s origins, basic features, performance, and prospects. I begin by discussing how the ECCC came to be established and analyze the particular form that it took. I then critique its operations during its first three years of operation, looking at three aspects of its work—its judicial findings, its institutional management, and its outreach to victims. Finally, I examine how the ECCC can best deliver credible justice and contribute to genuine reconciliation in Cambodia going forward.
The Rough Road to Justice
To understand the ECCC’s strengths, shortcomings, and progress to date, some background is essential. I therefore begin with a review of the history and politics behind the ECCC’s establishment. There have been countless calls for justice in Cambodia since the demise of “Democratic Kampuchea” (DK). Victims, human rights advocates, domestic political parties, and foreign governments have all pressed for accountability to varying degrees. Nevertheless, the tribunal’s creation was a slow, painful process. The ECCC did not open its doors until almost three decades after the fall of the Khmer Rouge regime. The delay in the tribunal’s creation owed primarily to power politics. The Khmer Rouge movement was forged in the crucible of Cold War conflict, and subsequent treatment of Khmer Rouge members has always been embedded in broader domestic and international competition for influence in Cambodia . Despite heroic efforts by some individuals and non-governmental groups, calls for Khmer Rouge accountability were buried beneath broader political and strategic considerations during the latter stages of the Cold War. A serious international push for accountability began only after the negotiated withdrawal of Vietnamese troops from Cambodia , eighteen months of United Nations administration, and UN-sponsored elections brought a measure of peace to the country and marginalized the Khmers Rouges as a political and military force.
Beginning in 1997, the United Nations and Cambodian government began a decade-long diplomatic dance to establish a tribunal. Disputes flared over the “balance of influence” between UN and Cambodian officials on the tribunal, the scope of the tribunal’s jurisdiction, the defendants to be charged, and the laws and procedures to be applied. Finally, in 2003, more than a quarter century after the collapse of the Khmer Rouge regime, the United Nations and Royal Cambodian Government hammered out an agreement (the “UN-RGC Agreement”) to establish the ECCC. The following year, the Cambodian National Assembly passed a law—approved by the UN—to govern the tribunal proceedings (the “ECCC Law”).
The UN-RGC Agreement and was a product of grueling political battles and frequent compromises between the Cambodian government and United Nations. Some of the key sticking points related to the tribunal’s temporal, personal, and subject-matter jurisdiction. It would be empowered to try only certain former Khmer Rouge officials for certain crimes committed during the specific period of Khmer Rouge rule. Another key bone of contention related to the balance of influence on the court. Unlike other tribunals, which had been dominated by international civil servants, the ECCC was designed in a manner than ensured a narrow preponderance of Cambodian personnel. The UN-RGC Agreement and subsequent ECCC Law drew sharp criticism from many Western observers, who argued that it conceded too much authority to the Hun Sen government and compromised on considerations of integrity and justice.
All international criminal tribunals reflect political realities and carry important political implications. The ECCC is certainly no exception. For better or worse, the tribunal’s jurisdictional limits and organizational structure were deemed necessary to achieve buy-in from the relevant parties. Nevertheless, the legacy of tough negotiations and political compromises has left residual discomfort and distrust. Much of the political friction that surfaced during the UN-Cambodian negotiations continues to haunt the ECCC proceedings. In particular, the tribunal’s jurisdiction and the appropriate balance of influence remain key subjects of debate, as Cambodian and UN officials argue over the possible inclusion of additional defendants and spar over the ways to improve the tribunal’s management.
The Tribunal Takes Shape
The 2003 agreement between the United Nations and Cambodian government and the 2004 ECCC Law contained the blueprint needed to create the tribunal. It set out the substantive laws that would govern the proceedings and set forth many of the organizational and administrative features of the ECCC. This section discusses the tribunal’s basic features
and how the tribunal took shape after the signing of the ECCC Law.
In addition to deciding what time period to cover and who to prosecute, the architects of the ECCC had to define the tribunal’s subject-matter jurisdiction. This meant deciding which of the many possible crimes of the DK regime to prosecute. Cambodian and UN officials drew from both local and international law and ultimately settled on eight crimes, including genocide, war crimes, crimes against humanity, torture, homicide, religious persecution, and a few lesser-known, previously untried international offenses.
The legal definitions of some of these crimes were not obvious. Justice requires that Khmer Rouge defendants be tried only for crimes that existed at the time of the acts in question, and both international criminal law and Cambodian law were in flux during the 1970s. As Heindel describes, the ECCC Law left open some important questions about the precise “elements” (i.e., the specific acts and criminal intent) that prosecutors must prove to secure convictions for particular offenses. It also left open some complex legal issues surrounding the “forms” of criminal responsibility. In cases of mass human rights abuses, holding high-ranking leaders accountable usually requires proving that they issued orders, engaged in conspiracy, or otherwise bore indirect responsibility for the crimes of their colleagues or subordinates. The ECCC’s legal formulation of direct and indirect criminal responsibility could have a major practical impact on the trials.
Equally important are the laws and rules established to safeguard the rights of defendants. As argued above, the ECCC can only be deemed a success if it enables defendants to mount defenses and adheres to common notions of procedural justice. Legal defenses are available to Khmer Rouge defendants under the ECCC Law and other relevant sources of law. Internal Rules were agreed only in 2007 to govern the internal operations of the ECCC.
Finally, it is worth touching on the judicial and administrative structures laid out in the UN-Cambodian agreement and the ECCC Law. Much of the concern over the ECCC’s form and procedure relates to the mixed character of the tribunal. Investigative, prosecutorial, and judicial duties will all be divided between Cambodian and international personnel. There are some strengths of the model—such as the potential for complementary skills and expertise and the possibility of useful knowledge transfer. There are also some problems with the ECCC’s form and the possibility of institutional deadlock or procedural complications in certain cases.
Assessing the ECCC’s Performance to Date
When the ECCC finally took shape and commenced operations in 2006, it was given an unofficial three-year mandate and a corresponding budget to tackle Khmer Rouge impunity by putting some surviving DK officials on trial. Over its first three years, the ECCC has validated both the hopes of its proponents and the fears of its critics. To its supporters, the ECCC has taken major steps toward justice. To some critics, the tribunal has been a farce and a failure. The truth lies somewhere in between.
Since 2006, notable progress has been made. Investigations have been conducted, five key suspects are in custody, numerous pre-trial proceedings have transpired, and the trial against Duch has begun. The tribunal has also established workable administrative organs and has improved its outreach through the establishment of a new Victims’ Unit. Conducting effective criminal trials is no easy task, especially when the scale of the crimes committed is so vast. The challenge is even greater in a new institution using multiple languages, serving diverse donors, and implementing rules and procedures based on a complex blend of local and international legal traditions. Viewed in this light, the ECCC may even have exceeded expectations.
Nevertheless, the accountability process is far from complete, and the ECCC has hit frequent bumps in the road. A number of disputes, problems, and scandals have arisen, impeding the tribunal’s efficiency, sometimes undermining its perceived legitimacy, and occasionally jeopardizing its existence. Many of the challenges at the ECCC have involved tension between Cambodian and international officials. Tough compromises have been necessary throughout the process to keep the tribunal functioning. The tribunal has often moved slowly, and some analysts have particularly criticized the pace of criminal investigations. The ECCC was created with a three-year mandate and corresponding budget. It is now clear that the tribunal will consume much more time and money than originally envisioned to complete its mission. To critics, it has also failed to provide adequate outreach to victims and issued legal judgments of variable quality. Perhaps even more damning are allegations that some ECCC officials have mismanaged the institution and allowed corruption to creep into the process. Some observers, including prominent human rights advocates, have even advocated shutting down the ECCC.
The ECCC’s Legal Judgments
Since mid-2007, the Pre-Trial Chamber a unit composed of three Cambodian and two international judges, has conducted a number of public hearings and issued a number of important decisions. Many have related to procedural rights and the lawfulness of the ECCC’s detention of the defendants. A number of the charged persons have filed appeals against the Co-Investigating Judges’ detention orders, arguing that they are either too sick to be in detention or unfit to stand trial. Duch has sought release on the grounds that his rights were violated by a lengthy pre-trial detention by the Phnom Penh Military Court —which began in 1999 and extended well beyond the three-year maximum in Cambodian law. Ieng Sary has argued that he should be immune from prosecution due to the principle of “double jeopardy”—he was convicted in absentia of genocide in a brief trial in 1979. Ieng has also appealed his detention, pointing to the amnesty and pardon he received when he defected to the government in 1996.
The Pre-Trial Chamber has rejected all of the foregoing appeals. It has also had to grapple with other diverse issues. These have included the rights of civil parties to participate in the process, the forms of criminal responsibility that will be accepted at trial, and the scope of the defendants’ right to translation of case file documents.
The Tribunal’s Institutional Management
The ECCC is not only a court of law – it is also a complex bureaucratic organization subject to various forms of political oversight and influence. The ECCC cannot perform its mandated judicial and public outreach functions without running an effective institution. The ECCC faces steep challenges that all international and hybrid tribunals have faced—how to set up a sophisticated bureaucracy from scratch, manage complex donor relations, assemble a diverse staff, manage linguistic and logistical headaches, and tackle tough criminal cases.
The ECCC has made important strides, but it has also faced significant administrative challenges. Foremost among these has been the problem of alleged corruption in the tribunal. In 2007, an audit conducted for the UN Development Program noted allegations of kick-backs, illegal hiring practices, and other malfeasance. A few ECCC employees later issued corroborating claims. The episode sparked a significant crisis, provoking recriminations between the United Nations and Cambodian government and prompting some donors to suspend financial contributions. The ECCC has since taken some responsive measures, issuing new guidelines and creating a new anti-corruption commission. However, concerns about corruption have not evaporated, and the measures taken to date have failed to satisfy some donors and external observers.
Another concern about the ECCC’s operations surrounds the length and financial cost of the process. The ECCC began with an agreed budget of roughly $56 million, of which the international community contributed the lion’s share. That budget was intended to cover the entire trial process for a period of three years. However, by early 2008, the ECCC estimated a need for a further $114 million to complete its work. Donors were not enthusiastic, especially in the wake of corruption allegations. The tribunal eventually shaved its budget request by a significant margin but has still requested roughly $50 million in additional funds. It now estimates that the trials of four defendants will not begin until 2010, making further funding requests likely. Should the ECCC decide to prosecute additional defendants, the price tag will further rise. Donors have taken some measures to improve budgetary and management oversight, but budgetary tugs-of-war will likely continue.
Critics argue that the ECCC is proving wasteful and that money could be more productively used for development projects given all of Cambodia ’s needs. Supporters of the process respond that the ECCC is still much cheaper than the wholly international processes carried out for the former Yugoslavia and Rwanda . Moreover, the funds provided for the tribunal would not necessarily be furnished for other ends. Hall evaluates these arguments and assesses the measures that donors and the ECCC have taken to promote sound financial management.
The ECCC’s Outreach to Victims
A third key aspect of the tribunal’s operations is its outreach to survivors of the DK era and other ordinary people. Robust victim participation is essential if the ECCC is to be successful. The Khmer Rouge trials are not just an antiseptic legal exercise; they represent an effort to help millions of Cambodians heal and to advance principles of justice and human rights in a society that has seen too little of both. The ECCC can fulfill those missions only if Cambodians are able to follow, understand, and meaningfully participate in the process.
The ECCC is part of an evolution of victim participation in international and hybrid international tribunals. Limited victim access has severely compromised the effectiveness of the ICTY and ICTR, in contrast to the Special Court of Sierra Leone, which has made considerable advances in connecting the local community to the proceedings.
Under the framework for victim participation at the ECCC victims can participate directly in the trials—by issuing formal complaints, serving as witnesses, or joining the proceedings as civil parties. They also can participate through educational sessions, visits to the court proceedings, and village discussion forums. There are many challenges that the ECCC faces in responding to the needs of millions of Cambodian victims. These include the legal complexities of including civil parties, the difficulty of managing voluminous victim complaints and coordinating NGO activities in the field, and the need for strong outreach and witness protection programs.
The ECCC’s Prospective Role in Justice and Reconciliation
The final section of this paper discusses how the ECCC fits into broader efforts to achieve a measure of justice and reconciliation in Cambodia . As stressed above, the tribunal is not a cure-all for the wounds inflicted by Khmer Rouge terror. It is part of a broader process of healing that is taking place on both societal and personal levels. At both public and private levels, Cambodians pursued various forms of reconciliation long before the tribunal was created. Those efforts have helped survivors and their families begin to rebuild and have contributed to improved social stability after decades of armed conflict.
The ECCC has the potential to deliver meaningful justice and contribute to genuine reconciliation. To do so, it needs to devote tremendous effort and energy to enhanced public outreach. It must focus as much on the needs of ordinary Cambodians as it does on the imperatives of a sound judicial process. That is a great deal to request from a tribunal that is already entrusted with a complex set of criminal cases. However, even perfectly run cases with well-reasoned verdicts will ring hollow if the public is not able to follow and understand the process.
Of course, the ECCC is not acting alone, and it is not the only body with responsibility to reach the public. It is just one prominent institution working on an array of problems which government agencies, international organizations, NGOs, religious groups, and ordinary citizens have also begun to address. The tribunal draws useful attention to the Khmer Rouge legacy. Schools, NGOs, health clinics, and other providers of education and counseling need to seize this opportunity to address crucial public needs for information, counseling, and dialogue. We note some of the efforts underway and stress the importance of an all-hands effort to make the ECCC-led process a success and to follow up on the trials with a continued
commitment to justice, reconciliation, and the rule of law.
Dr. John D. Cirociari. Stanford University is a National Fellow of the Hoover Institution at Stanford. His current research centers on the alignment policies of small states and middle powers in the Asia-Pacific region. He is also a Senior Legal Advisor to DC-Cam. He has published a range of scholarly works on international criminal law and the Khmer Rouge accountability process.
(This paper presented for the DC-Cam's Genocide Education Project -- National Training Teacher for Lower and Upper Secondary School of Cambodia, Senate Library, Phnom Penh , Cambodia , June 29-July 7, 2009. The Project in collaboration with the Ministry of Education, Youth and Sport, is support & funded by Belgium , Cambodia , Canada , Denmark , Germany , New Zealand , Norway , Sweden , United States of America , National Endowment for Democracy, Sleuk Rith Institute, and Open Society Institute.)
John D. Ciorciari
This paper discusses the Extraordinary Chambers in the Courts of Cambodia (ECCC), better known as the Khmer Rouge Tribunal. The ECCC is a special judicial body housed in a revamped military building complex on the western edge of Phnom Penh . It is a hybrid or “mixed” tribunal, established and operated by officials of the United Nations and Royal Cambodian Government. Since opening its doors in 2006, the ECCC has been entrusted with the monumental task of conducting criminal trials and delivering a measure of justice to the victims of Khmer Rouge misrule. I briefly discuss some of the forces that drove the tribunal’s creation, analyze its basic legal and institutional features, assess its progress to date, and discuss its potential to contribute to justice and reconciliation in Cambodia .
Why the ECCC is So Important
The ECCC is an institution with profound moral, legal, political, and even educational significance. It represents the latest stage in a long, tortuous process of dealing with the Khmer Rouge legacy in Cambodia . Between April 17, 1975 and January 6, 1979, the Khmer Rouge regime ruled Cambodia with an iron fist, renaming it “Democratic Kampuchea” (DK) and implementing an infernal reign of terror. Khmer Rouge atrocities are not simply shards from the country’s shattered past. They continue to haunt countless Cambodians today and contribute to unhealthy divides in Cambodian society and politics. After three decades of waiting, Cambodians have an opportunity to pursue a modicum of justice and take another important step toward reconciliation.
The atrocities committed in Democratic Kampuchea are certainly not the only past wrongs casting shadows over modern Cambodian society. They were embedded within decades of conflict that involved abuses by myriad domestic and foreign actors. Nevertheless, the Pol Pot era was the most gruesome, savage, and shocking act in that tragedy. Nothing will erase survivors’ pain, but to the ECCC’s many supporters, the Khmer Rouge trials represent an indispensable stand against impunity that can help Cambodians come to terms with the past and move on with their lives.
Challenging Impunity
The single greatest reason for holding the Khmer Rouge trials is to deliver a measure of justice to a society that has suffered impunity for too long. In January 1979, when the overthrow of the DK regime raised the curtain around Cambodia , official documents and physical evidence revealed abuse on a staggering scale. The Cambodian countryside is still littered with the remains of Khmer Rouge brutality. Makeshift prisons, rusting torture devices, and thousands of mass burial pits provide daily reminders to Cambodians of the agony that they or their parents suffered during the Pol Pot period. The Documentation Center of Cambodia (DC-Cam) has identified roughly 20,000 mass graves and almost 200 former Khmer Rouge detention centers across the country, many with chilling remains of makeshift torture devices.
Most scholars believe that the Khmer Rouge regime consumed somewhere between one fifth and one third of the country’s population. In fact, the piles of human remains are so vast, and survivors’ accounts so abundant, that the world may never have an accurate estimate of the carnage. Even that shocking death toll paints only part of the picture; the Khmer Rouge tragedy can never be reduced to mere statistics. Every individual life lost was a father or mother, sister or brother, son or daughter, husband or wife, friend or companion. While the sheer number of Khmer Rouge crimes demands justice, the stories of individual victims issue even more powerful pleas.
Documents and abundant witness testimony tell of unimaginable suffering and cruelty. Khmer Rouge cadres required villagers to watch as their loved ones faced firing squads for the most trivial or arbitrary offenses, such as stealing rice or vegetables to avoid starvation. Some pregnant women, accused of ill-defined “anti-revolutionary” behavior, were strung up and disemboweled for all to see. Witnesses even tell of Khmer Rouge soldiers tossing infants into the air and catching their live bodies on bayonets. In makeshift prisons, Khmer Rouge interrogators tested baseless accusations of espionage or subversion by strapping their victims to rusty bed frames, burning them with embers, ripping off their fingernails, and dunking them in cold water to the point of drowning. Without ever facing trials, countless prisoners were taken to mass burial pits, where Khmer Rouge executioners killed them with axe-handles to avoid wasting precious bullets.
Those who avoided untimely death fared little better. Rampant rape and religious persecution plagued the country. Sick and elderly Cambodians endured endless hours of forced labor, occasionally unearthing the corpses and bones of their lost loved ones as they toiled in the field. Most ordinary people slaved away, furtively eating bugs and bark to stay alive, wondering if they would ever see their families again. The regime denied them even the most basic rights of worship, free expression, and intimacy. Children learned in school to disavow their parents and devote their lives only to Angkar (the “Organization.”) Indoctrinated to kill, those young cadres were criminal perpetrators, but in many respects they were victims of the regime as well. The scars of the DK era run deep.
Until quite recently, even the most senior surviving architects of Democratic Kampuchea walked about freely. Some lived in comfortable villas while their victims wrestled with the demons of the past. The ECCC provides a long-overdue opportunity to challenge that abhorrent legacy of impunity. Three decades after the fall of the Pol Pot regime, no senior Khmer Rouge official has ever been convicted of a crime by a credible court of law. However, that may soon change. Since commencing operations in 2006, tribunal officials have taken a crucial first step against impunity by detaining five former Khmer Rouge officials and charging them with criminal offenses.
The trial of one DK official—Duch, the former chief of the infamous Tuol Sleng Prison in Phnom Penh —has already begun. Four other surviving senior leaders are also in the dock: Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng Thirith. All carried high-ranking titles and were members of the shadowy committees that defined the inner circle of Democratic Kampuchea.
The clock is ticking. Many senior Khmer Rouge leaders have died in the past decade—including Party Secretary Pol Pot, Defense Minister Son Sen, Central Committee member Ta Mok (also known as “the Butcher”), Education Minister Yun Yat, and Zone Commander Ke Pauk. Many second-tier perpetrators of Khmer Rouge terror also lived out their final years in relative comfort without facing so much as a slap on the wrist. All five current defendants are advanced in years, and some or all could pass away or lose their mental capacity before facing legal condemnation. Allowing all Khmer Rouge leaders to pass freely from the scene would be a grave affront to the millions of innocent victims whose lives they tore asunder.
Delivering Justice
For the ECCC to succeed, one thing is clear: it has to deliver a significant measure of justice in the eyes of Cambodians and the international community. Justice is a complex concept, especially in the wake of such wide-ranging atrocities. Conducting a process and producing outcomes that satisfy diverse audiences’ notions of justice will be no easy endeavor. Issuing a few guilty verdicts is certainly not enough. As we will argue, the ECCC needs to prioritize retributive, restorative, and procedural aspects of justice.
Justice means many different things to Cambodians and international observers of the trials. Notions of retributive justice provide much of the foundation for criminal law. The moral logic behind legal retribution is simple: an offender committed a social harm and must be condemned and punished by the state. The ECCC’s success will certainly be judged in part by its ability to issue moral condemnation and mete out punishment where it is due. However, retribution is only one aspect of justice. Victims may derive satisfaction from seeing Khmer Rouge leaders shamed and punished, but even life sentences will hardly make victims whole.
One of the key issues relating to retribution will be the scope of the prosecution. Trying only a handful of leaders means that many mid-level Khmer Rouge officers will go free. So will low-level cadres, who committed an overwhelming majority of the physical abuses that continue to haunt survivors to this day. The United Nations and Cambodian government agreed to prosecute only “senior leaders” and others deemed “most responsible” for the atrocities of the DK era. Like other tribunals, the ECCC has been accused of “selective justice.” The tribunal will not be able to erase all of the impunity that lingers after the DK era but it needs to do its best to identify and successfully prosecute key architects of Khmer Rouge terror.
One problem with focusing on criminal trials and retribution is that even guilty verdicts provide little restorative justice. Throwing a thuggish Khmer Rouge leader in prison does not compensate victims or “restore” their well-being before the crimes in question. Providing restorative justice in a country as badly ravaged as Cambodia is a tall order, but taking some significant steps to address victims’ needs is vital. Victims should, after all, be the primary beneficiaries of the accountability process.
Restorative justice has historically been a weakness of international tribunals, and it represents a special challenge for the ECCC. Money is never a substitute for lost loved ones of serious human rights abuses, but like other tribunals, the ECCC lacks the resources to issue much beyond token financial compensation. The ECCC has taken an innovative approach to restorative justice. It has established a mechanism for civil party participation in the trials and envisioned restorative awards in the form of “collective or moral reparations,” such as memorials to honor victims or centers that provide basic health or educational services to survivors. The success of the ECCC’s restorative efforts will go a long way toward determining public perceptions of the tribunal.
A third imperative feature of the ECCC process is procedural justice. Achieving a just outcome requires holding fair trials. To some observers, it is doubtlessly enervating to watch Khmer Rouge defendants receive basic due process rights that the DK regime so cruelly denied to millions. Most people harbor few doubts that the defendants now in custody are guilty of serious wrongdoing, even if their specific crimes remain unspecified. Some observers would probably consider it just simply to line former Khmer Rouge leaders against a wall and pull the trigger. In the aftermath of any widespread human rights abuses, the thirst for retribution is a powerful and understandable impulse. This is true even in Cambodia , where religious and cultural norms and the passage of time have softened public vindictiveness to some degree.
Nevertheless, defendants’ rights must be respected if the ECCC is to be a model for justice and not a kangaroo court. Every international tribunal since Nuremberg has been lambasted by someone as “victor’s justice” or “show trials.” These critiques are not entirely unfounded—tribunals inevitably do reflect the political realities in which they are created. The best way to reduce the force of such critiques is to promote transparency and fairness. The Nuremberg Tribunal set an important precedent in this regard by acquitting a few Nazi defendants for lack of evidence. Other international tribunals—including those for the former Yugoslavia and Rwanda —have also acquitted some defendants. The ECCC is bound by a complex set of substantive laws, procedural rules, and rules of evidence that are designed to promote fairness. If the ECCC is to set an example of justice, it must stick to them.
Fair trials require that convictions be based on sound legal proof, and even the most odious defendants must be able to mount defenses. Guilty verdicts cannot be foregone conclusions. There is extensive potential evidence available against Khmer Rouge leaders—including official DK documents, witness testimony, and physical remains—but proving individual defendants responsible for particular offenses is not as simple as it may seem. Where particular crimes cannot be proven, defendants have to be acquitted.
Treating Khmer Rouge defendants in this way may be morally or politically tough to swallow, but the ECCC will only fulfill its mandate with an even-handed administration of justice. The ECCC may never be able to provide “complete” retribution or restoration to Cambodians, but it does have control over running a fair process. In addition to setting an example of fairness and transparency, sticking to due process principles can facilitate a useful transfer of knowledge and expertise between Cambodian and international officials that helps to strengthen Cambodia ’s beleaguered and notoriously corrupt judicial system. One tragic legacy of Democratic Kampuchea is that few intellectuals survived the Pol Pot era, leaving the country with a dearth of lawyers and other professionals. Without a critical mass of well-trained judges and lawyers, it is difficult if not impossible to build a strong legal system. The potential for knowledge transfer has been a key justification for the establishment of hybrid tribunals, in Cambodia and in other war-torn states.
The retributive, restorative, and procedural aspects of justice are not mutually exclusive, even if they are sometimes in tension or suggest different ways of using limited resources. Retribution can challenge the culture of impunity and provide moral condemnation of offenders. Proponents of the trials hope it would also deter future criminal behavior and help to uphold the rule of law. Restorative justice can help to repair social and economic damage and thus facilitate reconciliation. Setting an example of procedural fairness can pave the way toward a more robust rule of law, addressing the future as well as the past. In Cambodia , like other societies plagued by mass human rights atrocities, all of these aspects of justice are crucial. The ECCC’s challenge is to optimize them under conditions in which time and money are limited and in which the demands for justice would be difficult for any tribunal to deliver.
Performing a Truth-Telling Function
To many observers, the ECCC also holds the promise to perform an even wider range of functions than running fair trials and issuing verdicts of guilt or innocence. If it conducts its affairs soundly, the tribunal can serve as an invaluable truth-telling mechanism in a country where public education about the Khmer Rouge tragedy has been sorely lacking. Essentially all survivors of the Pol Pot era know that mass human rights abuses occurred between 1975 and 1979, but few know the full extent of the atrocities. Even fewer have the faintest notion of why the Khmer Rouge leaders and cadres inflicted such agony on their own people. In thousands of interviews with DC-Cam, most victims show more interest in seeking an explanation than in seeking revenge. To cope with the past, those who bear the scars of Khmer Rouge rule and lost loved ones want to know why.
In addition to benefiting survivors of Democratic Kampuchea, public dissemination of facts about the Pol Pot period can help their children by showing the need for a just and orderly society and the perils of a breakdown in the rule of law. Most of Cambodia ’s current citizens were born after the Khmers Rouges were thrown from power. They have no first-hand experience of the extraordinary suffering of their parents’ generation. Some young Cambodians hear about the terror from relatives and teachers, but for many others, the period is a darkly shrouded mystery. Without an understanding of the Pol Pot era, many youths have difficulty understanding the psychological, emotional, and social challenges that their elders face.
For years, Cambodian schools offered little if any instruction about the Khmer Rouge period. Only recently have some textbooks been approved and introduced into public school curricula. The ECCC can serve as one credible source of history about the regime, alongside the accounts given in textbooks, museums, and other media. Court reports, media coverage, public visits, and outreach by ECCC and NGO officials can all help to provide answers. Only if they are armed with knowledge of the past can young Cambodians make sense of their country’s troubled history, achieve a greater degree of closure than they have to date, and prepare themselves to prevent human rights abuses in the future.
Setting an International Example
The ECCC also has importance well beyond Cambodia ’s borders. It is one of the most recent embodiments of an expanding international effort to hold venal regimes accountable for their abuses and promote greater respect for basic rights. Since the era of Nuremberg , key members of the international community have worked to devise international proceedings to address the limitations of domestic criminal proceedings in post-conflict societies. During the 1990s, the United Nations established ad hoc international tribunals for the former Yugoslavia and Rwanda and later a permanent International Criminal Court in The Hague .
The UN-administered tribunals have been criticized on a number of grounds, including their cost and their relative distance—geographic and otherwise—from the victimized societies. The ECCC is one of the few examples of an alternative “mixed tribunal” model that involves shared duties between the United Nations and the government of the affected state. Proponents of the model believe mixed tribunals will better enfranchise victims, facilitate transfer of expertise, and deliver justice at a lower cost in countries that need money for many other uses. Opponents of the hybrid court model fear that partnering with suspect governments could water down the trials’ legal and procedural integrity, undermine the UN’s reputation, and reduce the likelihood of credible justice. Some also fear that holding trials locally could reopen old wounds and backfire in the quest for reconciliation. The ECCC’s performance will be a crucial test for the mixed tribunal model.
Affecting Cambodian Politics
The ECCC’s mandate is a legal one, but it has great political relevance in Cambodia as well. In 1979, when the Pol Pot regime was overthrown, a new Vietnamese-backed government took over in Phnom Penh . That government—which renamed the country the People’s Republic of Kampuchea (PRK)—based its claim to power and legitimacy primarily on having saved the country from Khmer Rouge terror. Years later, the PRK leadership founded the Cambodian People’s Party (CPP), which governs Cambodia today. The CPP and its long-time leader, Hun Sen, continue to derive public support by emphasizing their role in purging the country of the Khmer Rouge problem.
Opposition parties, including the royalist Funcinpec, the Sam Rainsy Party, and the Human Rights Party, have attacked that claim and accused the CPP of worsening rather than improving respect for human rights in Cambodia . Some foreign governments and human rights organizations have said the same. The Khmer Rouge trials could indeed have some impact on public perceptions of the CPP. If they proceed well, the CPP will probably reap a modest political benefit. If the trials are botched, they may have an opposite effect. A shoddy process would likely contribute to public and international donor frustration with government—and particularly judicial—corruption in Cambodia . The trials are unlikely to become an existential issue in national politics, as they are sometimes portrayed in the foreign press, but they could generate some meaningful near-term diplomatic and domestic disruptions. That gives them importance well beyond the courtroom.
Overall: A Herculean Set of Tasks
The goals above are a tremendous amount to ask of a single tribunal. One of the ECCC’s greatest challenges is to manage public expectations about what it can realistically accomplish. Even if the tribunal is wildly successful, a series of criminal trials will be no panacea. The ECCC cannot cure all of the ills of a society struggling to overcome mass atrocities. It cannot replace lost loved ones, and it cannot rectify all of the political and economic problems that flow from the Khmer Rouge reign of terror. It cannot alone transform Cambodian governance, put an end to criminality and corruption, bring about a major improvement in contemporary human rights in Cambodia , or address a host of other developmental needs.
The tribunal’s importance lies more in its ability to serve as a catalyst and bellwether for change in Cambodia . It can become a necessary, highly visible step toward a more promising future by challenging impunity, setting an example of a just trial, sharing information about the Pol Pot period, and drawing attention to victims’ needs. The ECCC can also focus renewed domestic and international attention on issues of governance and human rights and increase the prospects for future progress. If it performs all of these functions ably, the ECCC will have done a great service indeed.
The ECCC’s Background and Progress to Date
The next section briefly discusses the ECCC’s origins, basic features, performance, and prospects. I begin by discussing how the ECCC came to be established and analyze the particular form that it took. I then critique its operations during its first three years of operation, looking at three aspects of its work—its judicial findings, its institutional management, and its outreach to victims. Finally, I examine how the ECCC can best deliver credible justice and contribute to genuine reconciliation in Cambodia going forward.
The Rough Road to Justice
To understand the ECCC’s strengths, shortcomings, and progress to date, some background is essential. I therefore begin with a review of the history and politics behind the ECCC’s establishment. There have been countless calls for justice in Cambodia since the demise of “Democratic Kampuchea” (DK). Victims, human rights advocates, domestic political parties, and foreign governments have all pressed for accountability to varying degrees. Nevertheless, the tribunal’s creation was a slow, painful process. The ECCC did not open its doors until almost three decades after the fall of the Khmer Rouge regime. The delay in the tribunal’s creation owed primarily to power politics. The Khmer Rouge movement was forged in the crucible of Cold War conflict, and subsequent treatment of Khmer Rouge members has always been embedded in broader domestic and international competition for influence in Cambodia . Despite heroic efforts by some individuals and non-governmental groups, calls for Khmer Rouge accountability were buried beneath broader political and strategic considerations during the latter stages of the Cold War. A serious international push for accountability began only after the negotiated withdrawal of Vietnamese troops from Cambodia , eighteen months of United Nations administration, and UN-sponsored elections brought a measure of peace to the country and marginalized the Khmers Rouges as a political and military force.
Beginning in 1997, the United Nations and Cambodian government began a decade-long diplomatic dance to establish a tribunal. Disputes flared over the “balance of influence” between UN and Cambodian officials on the tribunal, the scope of the tribunal’s jurisdiction, the defendants to be charged, and the laws and procedures to be applied. Finally, in 2003, more than a quarter century after the collapse of the Khmer Rouge regime, the United Nations and Royal Cambodian Government hammered out an agreement (the “UN-RGC Agreement”) to establish the ECCC. The following year, the Cambodian National Assembly passed a law—approved by the UN—to govern the tribunal proceedings (the “ECCC Law”).
The UN-RGC Agreement and was a product of grueling political battles and frequent compromises between the Cambodian government and United Nations. Some of the key sticking points related to the tribunal’s temporal, personal, and subject-matter jurisdiction. It would be empowered to try only certain former Khmer Rouge officials for certain crimes committed during the specific period of Khmer Rouge rule. Another key bone of contention related to the balance of influence on the court. Unlike other tribunals, which had been dominated by international civil servants, the ECCC was designed in a manner than ensured a narrow preponderance of Cambodian personnel. The UN-RGC Agreement and subsequent ECCC Law drew sharp criticism from many Western observers, who argued that it conceded too much authority to the Hun Sen government and compromised on considerations of integrity and justice.
All international criminal tribunals reflect political realities and carry important political implications. The ECCC is certainly no exception. For better or worse, the tribunal’s jurisdictional limits and organizational structure were deemed necessary to achieve buy-in from the relevant parties. Nevertheless, the legacy of tough negotiations and political compromises has left residual discomfort and distrust. Much of the political friction that surfaced during the UN-Cambodian negotiations continues to haunt the ECCC proceedings. In particular, the tribunal’s jurisdiction and the appropriate balance of influence remain key subjects of debate, as Cambodian and UN officials argue over the possible inclusion of additional defendants and spar over the ways to improve the tribunal’s management.
The Tribunal Takes Shape
The 2003 agreement between the United Nations and Cambodian government and the 2004 ECCC Law contained the blueprint needed to create the tribunal. It set out the substantive laws that would govern the proceedings and set forth many of the organizational and administrative features of the ECCC. This section discusses the tribunal’s basic features
and how the tribunal took shape after the signing of the ECCC Law.
In addition to deciding what time period to cover and who to prosecute, the architects of the ECCC had to define the tribunal’s subject-matter jurisdiction. This meant deciding which of the many possible crimes of the DK regime to prosecute. Cambodian and UN officials drew from both local and international law and ultimately settled on eight crimes, including genocide, war crimes, crimes against humanity, torture, homicide, religious persecution, and a few lesser-known, previously untried international offenses.
The legal definitions of some of these crimes were not obvious. Justice requires that Khmer Rouge defendants be tried only for crimes that existed at the time of the acts in question, and both international criminal law and Cambodian law were in flux during the 1970s. As Heindel describes, the ECCC Law left open some important questions about the precise “elements” (i.e., the specific acts and criminal intent) that prosecutors must prove to secure convictions for particular offenses. It also left open some complex legal issues surrounding the “forms” of criminal responsibility. In cases of mass human rights abuses, holding high-ranking leaders accountable usually requires proving that they issued orders, engaged in conspiracy, or otherwise bore indirect responsibility for the crimes of their colleagues or subordinates. The ECCC’s legal formulation of direct and indirect criminal responsibility could have a major practical impact on the trials.
Equally important are the laws and rules established to safeguard the rights of defendants. As argued above, the ECCC can only be deemed a success if it enables defendants to mount defenses and adheres to common notions of procedural justice. Legal defenses are available to Khmer Rouge defendants under the ECCC Law and other relevant sources of law. Internal Rules were agreed only in 2007 to govern the internal operations of the ECCC.
Finally, it is worth touching on the judicial and administrative structures laid out in the UN-Cambodian agreement and the ECCC Law. Much of the concern over the ECCC’s form and procedure relates to the mixed character of the tribunal. Investigative, prosecutorial, and judicial duties will all be divided between Cambodian and international personnel. There are some strengths of the model—such as the potential for complementary skills and expertise and the possibility of useful knowledge transfer. There are also some problems with the ECCC’s form and the possibility of institutional deadlock or procedural complications in certain cases.
Assessing the ECCC’s Performance to Date
When the ECCC finally took shape and commenced operations in 2006, it was given an unofficial three-year mandate and a corresponding budget to tackle Khmer Rouge impunity by putting some surviving DK officials on trial. Over its first three years, the ECCC has validated both the hopes of its proponents and the fears of its critics. To its supporters, the ECCC has taken major steps toward justice. To some critics, the tribunal has been a farce and a failure. The truth lies somewhere in between.
Since 2006, notable progress has been made. Investigations have been conducted, five key suspects are in custody, numerous pre-trial proceedings have transpired, and the trial against Duch has begun. The tribunal has also established workable administrative organs and has improved its outreach through the establishment of a new Victims’ Unit. Conducting effective criminal trials is no easy task, especially when the scale of the crimes committed is so vast. The challenge is even greater in a new institution using multiple languages, serving diverse donors, and implementing rules and procedures based on a complex blend of local and international legal traditions. Viewed in this light, the ECCC may even have exceeded expectations.
Nevertheless, the accountability process is far from complete, and the ECCC has hit frequent bumps in the road. A number of disputes, problems, and scandals have arisen, impeding the tribunal’s efficiency, sometimes undermining its perceived legitimacy, and occasionally jeopardizing its existence. Many of the challenges at the ECCC have involved tension between Cambodian and international officials. Tough compromises have been necessary throughout the process to keep the tribunal functioning. The tribunal has often moved slowly, and some analysts have particularly criticized the pace of criminal investigations. The ECCC was created with a three-year mandate and corresponding budget. It is now clear that the tribunal will consume much more time and money than originally envisioned to complete its mission. To critics, it has also failed to provide adequate outreach to victims and issued legal judgments of variable quality. Perhaps even more damning are allegations that some ECCC officials have mismanaged the institution and allowed corruption to creep into the process. Some observers, including prominent human rights advocates, have even advocated shutting down the ECCC.
The ECCC’s Legal Judgments
Since mid-2007, the Pre-Trial Chamber a unit composed of three Cambodian and two international judges, has conducted a number of public hearings and issued a number of important decisions. Many have related to procedural rights and the lawfulness of the ECCC’s detention of the defendants. A number of the charged persons have filed appeals against the Co-Investigating Judges’ detention orders, arguing that they are either too sick to be in detention or unfit to stand trial. Duch has sought release on the grounds that his rights were violated by a lengthy pre-trial detention by the Phnom Penh Military Court —which began in 1999 and extended well beyond the three-year maximum in Cambodian law. Ieng Sary has argued that he should be immune from prosecution due to the principle of “double jeopardy”—he was convicted in absentia of genocide in a brief trial in 1979. Ieng has also appealed his detention, pointing to the amnesty and pardon he received when he defected to the government in 1996.
The Pre-Trial Chamber has rejected all of the foregoing appeals. It has also had to grapple with other diverse issues. These have included the rights of civil parties to participate in the process, the forms of criminal responsibility that will be accepted at trial, and the scope of the defendants’ right to translation of case file documents.
The Tribunal’s Institutional Management
The ECCC is not only a court of law – it is also a complex bureaucratic organization subject to various forms of political oversight and influence. The ECCC cannot perform its mandated judicial and public outreach functions without running an effective institution. The ECCC faces steep challenges that all international and hybrid tribunals have faced—how to set up a sophisticated bureaucracy from scratch, manage complex donor relations, assemble a diverse staff, manage linguistic and logistical headaches, and tackle tough criminal cases.
The ECCC has made important strides, but it has also faced significant administrative challenges. Foremost among these has been the problem of alleged corruption in the tribunal. In 2007, an audit conducted for the UN Development Program noted allegations of kick-backs, illegal hiring practices, and other malfeasance. A few ECCC employees later issued corroborating claims. The episode sparked a significant crisis, provoking recriminations between the United Nations and Cambodian government and prompting some donors to suspend financial contributions. The ECCC has since taken some responsive measures, issuing new guidelines and creating a new anti-corruption commission. However, concerns about corruption have not evaporated, and the measures taken to date have failed to satisfy some donors and external observers.
Another concern about the ECCC’s operations surrounds the length and financial cost of the process. The ECCC began with an agreed budget of roughly $56 million, of which the international community contributed the lion’s share. That budget was intended to cover the entire trial process for a period of three years. However, by early 2008, the ECCC estimated a need for a further $114 million to complete its work. Donors were not enthusiastic, especially in the wake of corruption allegations. The tribunal eventually shaved its budget request by a significant margin but has still requested roughly $50 million in additional funds. It now estimates that the trials of four defendants will not begin until 2010, making further funding requests likely. Should the ECCC decide to prosecute additional defendants, the price tag will further rise. Donors have taken some measures to improve budgetary and management oversight, but budgetary tugs-of-war will likely continue.
Critics argue that the ECCC is proving wasteful and that money could be more productively used for development projects given all of Cambodia ’s needs. Supporters of the process respond that the ECCC is still much cheaper than the wholly international processes carried out for the former Yugoslavia and Rwanda . Moreover, the funds provided for the tribunal would not necessarily be furnished for other ends. Hall evaluates these arguments and assesses the measures that donors and the ECCC have taken to promote sound financial management.
The ECCC’s Outreach to Victims
A third key aspect of the tribunal’s operations is its outreach to survivors of the DK era and other ordinary people. Robust victim participation is essential if the ECCC is to be successful. The Khmer Rouge trials are not just an antiseptic legal exercise; they represent an effort to help millions of Cambodians heal and to advance principles of justice and human rights in a society that has seen too little of both. The ECCC can fulfill those missions only if Cambodians are able to follow, understand, and meaningfully participate in the process.
The ECCC is part of an evolution of victim participation in international and hybrid international tribunals. Limited victim access has severely compromised the effectiveness of the ICTY and ICTR, in contrast to the Special Court of Sierra Leone, which has made considerable advances in connecting the local community to the proceedings.
Under the framework for victim participation at the ECCC victims can participate directly in the trials—by issuing formal complaints, serving as witnesses, or joining the proceedings as civil parties. They also can participate through educational sessions, visits to the court proceedings, and village discussion forums. There are many challenges that the ECCC faces in responding to the needs of millions of Cambodian victims. These include the legal complexities of including civil parties, the difficulty of managing voluminous victim complaints and coordinating NGO activities in the field, and the need for strong outreach and witness protection programs.
The ECCC’s Prospective Role in Justice and Reconciliation
The final section of this paper discusses how the ECCC fits into broader efforts to achieve a measure of justice and reconciliation in Cambodia . As stressed above, the tribunal is not a cure-all for the wounds inflicted by Khmer Rouge terror. It is part of a broader process of healing that is taking place on both societal and personal levels. At both public and private levels, Cambodians pursued various forms of reconciliation long before the tribunal was created. Those efforts have helped survivors and their families begin to rebuild and have contributed to improved social stability after decades of armed conflict.
The ECCC has the potential to deliver meaningful justice and contribute to genuine reconciliation. To do so, it needs to devote tremendous effort and energy to enhanced public outreach. It must focus as much on the needs of ordinary Cambodians as it does on the imperatives of a sound judicial process. That is a great deal to request from a tribunal that is already entrusted with a complex set of criminal cases. However, even perfectly run cases with well-reasoned verdicts will ring hollow if the public is not able to follow and understand the process.
Of course, the ECCC is not acting alone, and it is not the only body with responsibility to reach the public. It is just one prominent institution working on an array of problems which government agencies, international organizations, NGOs, religious groups, and ordinary citizens have also begun to address. The tribunal draws useful attention to the Khmer Rouge legacy. Schools, NGOs, health clinics, and other providers of education and counseling need to seize this opportunity to address crucial public needs for information, counseling, and dialogue. We note some of the efforts underway and stress the importance of an all-hands effort to make the ECCC-led process a success and to follow up on the trials with a continued
commitment to justice, reconciliation, and the rule of law.
Dr. John D. Cirociari. Stanford University is a National Fellow of the Hoover Institution at Stanford. His current research centers on the alignment policies of small states and middle powers in the Asia-Pacific region. He is also a Senior Legal Advisor to DC-Cam. He has published a range of scholarly works on international criminal law and the Khmer Rouge accountability process.
(This paper presented for the DC-Cam's Genocide Education Project -- National Training Teacher for Lower and Upper Secondary School of Cambodia, Senate Library, Phnom Penh , Cambodia , June 29-July 7, 2009. The Project in collaboration with the Ministry of Education, Youth and Sport, is support & funded by Belgium , Cambodia , Canada , Denmark , Germany , New Zealand , Norway , Sweden , United States of America , National Endowment for Democracy, Sleuk Rith Institute, and Open Society Institute.)
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About Me
- Duong Dara
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.