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Khmer Rouge Tribunal comes to a sombre end 

This photo taken and released by the Extraordinary Chamber in the Courts of Cambodia (ECCC) on August 19, 2021 shows ex-Khmer Rouge head of state Khieu Samphan speaking during his appeal against life imprisonment for his role in the genocide committed by the regime, at the ECCC in Phnom Penh. Photo: Mark Peters/Extraordinary Chambers in the Courts of Cambodia (ECCC)/ AFP

A decades-long effort to prosecute Khmer Rouge regime leaders concluded on 22 September, when a panel of international judges upheld the conviction of Khieu Samphan for crimes against humanity and genocide of ethnic minority Vietnamese and Cham Muslims in the final hearing of the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Led by Pol Pot, the Khmer Rouge emerged from the jungle after years of civil war to capture Phnom Penh on 17 April 1975, inflicting a scorched earth communist ideology. Millions were forced into hard labour and suspected dissidents were murdered across thousands of killing fields, until a Vietnamese invasion on 6 January 1979 forced the Khmer Rouge from power.

Following the court ruling, Samphan, the 91-year-old former head of state for Khmer Rouge Democratic Kampuchea, will continue serving life in prison for his role in the deaths of more than 2 million Cambodians, one out of every four of his countrymen.

Samphan had “categorically denied” the charges after his 2018 verdict. 

He is the last living defendant for the Khmer Rouge Tribunal, a $330 million joint-effort between the Cambodian government and the UN. The tribunal was launched in 2003, funded by 10 donor countries, including the US, Japan and France. 

A vehicle transporting ex-Khmer Rouge head of state Khieu Samphan, who is appealing against life imprisonment for his role in the genocide committed by the regime, arrives at the Extraordinary Chamber in the Courts of Cambodia (ECCC) in Phnom Penh on 22 September, 2022. Photo: Tang Chhin Sothy/AFP

The tribunal leaves a mixed legacy.

While a recent op-ed in the Phnom Penh Post celebrated the trials as “a symbolic victory for Cambodia’s fight against the culture of impunity,” Human Rights Watch declared in 2014 that the tribunal was “too little, too late.”

Besides Samphan, only two other Khmer Rouge leaders were convicted.

In 2012, the tribunal first convicted Kaing Guek Eav, more famously known as Comrade Duch, on charges of crimes against humanity and war crimes for his role overseeing operations of the notorious S-21 prison in Phnom Penh, which processed 24,000 prisoners and left a mere seven survivors.

A man looks at a portrait of former head of the Tuol Sleng prison Kaing Guek Eav, also known as Duch, at the Tuol Sleng genocide museum in Phnom Penh on September 2, 2020. – Kaing Guek Eav, 77, better known by his alias Duch, the chief torturer behind Cambodia’s genocidal Khmer Rouge, died on September 2 while serving a life sentence for crimes against humanity, leaving just one surviving leader of the regime that killed an estimated two million people in the 1970s. (Photo by TANG CHHIN Sothy / AFP)

Although Khmer Rouge mastermind Pol Pot died in 1999, his second in command, “Brother Number Two” Nuon Chea, former deputy secretary of the Democratic Kampuchea government, was also convicted alongside Samphan in 2018. Both Duch and Chea passed away behind bars.

The tribunal failed to prosecute two other indicted leaders – former Deputy Prime Minister Ieng Sary and former Social Affairs Minister Ieng Thirith – who were unable to stand trial due to health issues before they died.

Establishing the tribunal took years of negotiations. Hun Sen had first approached the UN for a tribunal in 1997, even as he toasted champagne with Samphan in an attempt at reconciliation. Unlike other international tribunals for war atrocities, exclusively run by The Hague or the UN, the Khmer Rouge Tribunal was formed by a mixed panel of international judges and prosecutors, but gave the Cambodian government veto power over prosecutorial decisions.

Throughout the tribunal, tensions arose between an international community favouring more prosecutions and the Cambodian government, led by former Khmer Rouge cadres including Prime Minister Hun Sen, which explicitly limited the scope of the tribunal. 

“[Hun Sen] has not sought to crush the rank and file of his enemies, only to co-opt, marginalise, or if necessary, destroy their top leadership,” Craig Etcheson, former chief of investigations for the ECCC, told The Diplomat in 2021. “For the “little people,” if they do not attempt to challenge his supremacy, then they are welcome to rejoin the national community.”

Etcheson pointed to the four other mid-level Khmer Rouge officials who were facing prosecution from the tribunal, but later saw the charges against them dropped.

Yet the tribunal also attempted to empower victims by providing them a space to share their stories of suffering and directly confront the defendants. 

Soeun Sovandy testified against Samphan and Chea in 2013, recounting how his family was forcibly evacuated from Phnom Penh to work on brutal farming collectives which he described as “a prison without wall.”

The public gallery at the Khmer Rouge tribunal. Photo: Jack Brook for Southeast Asia Globe

“We were the city people, we were capitalists, so they discriminated against us,” he told the court. “They said that it served us well when we came to the countryside enduring starvation.”

He recalled Khmer Rouge troops crushing babies against tree trunks and cadres targeting ethnic Vietnamese for the killing fields. Sovandy confronted the former head of state directly and asked Samphan about his role in executing policies leading to death and suffering of Cambodians.

But Samphan claimed his motivation had only been to transform Cambodia’s economy by creating an agricultural surplus. Instead, widespread starvation resulted.

“…In my life, never have I imagined that I would form any policy to kill anyone, especially Cambodian people,” Samphan said. 

This handout photo released by the Extraordinary Chamber in the Courts of Cambodia on October 21, 2013 shows former Khmer Rouge leader head of state Khieu Samphan (right) talking to his lawyer (left) in the ECCC courtroom in Phnom Penh on 16 October 2013. Photo: Mark Peters/Extraordinary Chambers in the Courts of Cambodia/AF

After they provided their testimony to prosecutors, the 3,865 victims registered as Civil Parties in the case against Samphan were not given sufficient resources to remain involved in the hearings, according to one of their former lawyers, Megan Hirst.

In her public resignation letter in June, Hirst claimed sufficient funds were not allocated to support victims throughout the trial process. 

“The overwhelming majority of Civil Parties do not know what has occurred at the ECCC over the past few years, or what will happen after the final judgement,” Hirst wrote. 

My difficulty, my misery cannot be put in words, it is indescribable

Sophan Sovany, survivor of a forced marriage under the Khmer Rouge

She stated she had been unable to meet with most of the victims to determine how much of their personal testimony, including “deeply personal matters such as sexual violence, forced marriage, and continuing mental health problems” should be made publicly available. 

“When we fail to fulfil our promises to the victims, we not only undercut the credibility of the institutions tasked with these purposes, we undermine the very credibility of our endeavour as a whole,” wrote Youk Chhang, executive director of the Documentation Center of Cambodia, in a July statement in response to Hirst’s letter.

Though Samphan’s upheld conviction marks the end of the tribunal’s judicial prosecution, survivors of the Khmer Rouge live on with their trauma with limited resources to support their recovery. “I have lost all my relatives, my siblings, and my parents,” said Sophan Sovany, survivor of a forced marriage under the Khmer Rouge, in her testimony against Samphan. “…I have endured all the miserable things in my life. My difficulty, my misery cannot be put in words, it is indescribable.”

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