Khmer Rouge Leaders on Trial: Q & A with James A. Goldston

The trial of the four surviving top leaders of the Communist Party of Kampuchea—the Khmer Rouge—is beginning in the Cambodian capital Phnom Penh, 32 years after the Khmer Rouge were driven from power by Vietnamese troops in January 1979. The four face charges of crimes against humanity and mass atrocity arising from the deaths of over one million people during their rule, which began when Khmer Rouge forces captured Phnom Penh in April 1975.

The defendants appearing before the Extraordinary Chambers in the Courts of Cambodia are: Nuon Chea, who served as the deputy secretary of the party; Khieu Samphan, head of state of Democratic Kampuchea; Ieng Sary, deputy prime minister for foreign affairs; and Ieng Thirith, minister for social affairs. The Khmer Rouge's top leader Saloth Sar, known as Pol Pot, died in 1998.

The Open Society Justice Initiative has been monitoring the effort to try the Khmer Rouge leadership before the UN-backed "hybrid" court of international and local Cambodian judges and staff. James A. Goldston, executive director, considers the significance of the trial, both for Cambodians and for the evolution of international justice.

This case has been described as the biggest trial for crimes against humanity since Nuremberg. Is that a reasonable parallel, and if so why?

What makes this trial significant is that it is the first genuine effort to try the most senior surviving leaders of the Khmer Rouge, which as a political movement was responsible for the deaths of 1.7 million people by execution, torture, starvation and disease in the 1970s.

This is important for Cambodia, where so many victims have waited decades for a measure of justice, and where discussion and awareness of the crimes committed during the Khmer Rouge era have long been suppressed (until recently such events were not part of the curriculum in most Cambodian schools). Holding to account the most culpable perpetrators of such crimes is particularly meaningful in a country where, as in Cambodia, the rule of law has long been severely compromised by a political leadership that has held power for more than a quarter century.

But this trial is also important for the international community - both because a number of governments, including the United States, provided crucial diplomatic support to the Khmer Rouge for many years, and because the crimes of the Khmer Rouge were on the order and magnitude of few other crimes committed in the 20th century. This trial is one important step toward erasing the stain of impunity. That is a goal in which human beings the world over have a genuine interest.

What are the criteria we should apply in assessing the legitimacy of the trial and its future legacy?

It is commonly said that justice must not only be done, it must be seen to be done.  This trial will be judged accordingly. In this regard it is crucial that the trial is carried out transparently, in compliance with international standards of due process, with full respect for the rights of the defense, the victims and the prosecution. The trial of multiple defendants on a series of complex charges will test the capacity of the tribunal’s judges to manage the proceedings efficiently.

Interest in this trial among Cambodians is high, and the ECCC should do all it can to ensure that members of the public have regular access to the proceedings in person, and on radio and television media. In addition, it is essential that the Cambodian government not obstruct the proceedings in any way. In this regard, it is of concern that, to date, six high-ranking Cambodian government officials have yet to comply with summonses for their testimony issued in the autumn 2009 by the international co-investigating judge.

What will be the key legal arguments the prosecution has to prove?

The defendants are charged with a wide variety of war crimes (willful killing, torture, inhumane treatment, willfully causing great suffering or serious injury to body or health, willfully depriving a prisoner of war or civilian of a fair trial, and unlawful deportation or confinement of civilians); crimes against humanity (extermination, murder, enslavement, deportation, imprisonment, torture, persecution, rape, and other inhumane acts) and genocide, in relation to acts committed against the Cham and Vietnamese minorities.

As in other trials of senior leaders, one of the critical questions will be the prosecution’s ability to marshal evidence linking the accused with (and establishing their legal responsibility for) criminal acts directly carried out by others. One of the modes of criminal responsibility alleged is that of joint criminal enterprise, which requires that the prosecution show that the defendants pursued their criminal activity in furtherance of a common purpose – in this case, to bring about (in the words of the charging instrument) a “rapid socialist revolution in Cambodia through a ‘great leap forward’, and defend the Party against internal and external enemies, by whatever means necessary.”

Even if this trial is successfully completed, the Justice Initiative has raised questions about the court's handling of the investigation into another group of former Khmer Rouge officials, in the third and fourth potential ECCC trials (Cases 003 and 004). Won't the questions over the investigation of those cases undermine the overall legacy of the ECCC?

This trial—Case 002—is significant in its own right. If the trial is carried out independently, transparently, and in accord with international standards, it will make a major contribution to the cause of accountability in Cambodia and to the global movement for international justice.

At the same time, Cases 003 and 004 have been plagued by serious allegations of political interference and improper behavior in the conduct of investigations. The positive impact of a successful trial of the top leadership in Case 002 will be diminished if these concerns are not convincingly addressed.

Where do you think the performance of the ECCC so far, with its mix of Cambodian and international judges, officers and staff, leaves this "hybrid" model of international justice?

Hybrid courts—composed of both national and international judges, prosecutors, defense attorneys and court staff—have made constructive, if imperfect, contributions to transitional justice from Bosnia to Sierra Leone.

Such forms of accountability will almost certainly be needed in the future. We still see persistent armed conflicts and the crimes that all too often accompany them. At the same time, the International Criminal Court—the world’s first permanent tribunal for the most serious crimes—only has the capacity to address a handful of cases at one time. And the reality is that national judicial systems in many countries will lack either the will or  the capacity—or both—to secure accountability for some time to come.

The ECCC experience to date suggests that, in negotiating the terms of engagement in hybrid mechanisms, the international community, often acting through the United Nations, must take great care to ensure that the principle of accountability is capable of fulfillment in each national context. Failure to do so may compromise the mission and public image of the UN, and of those states in whose name it acts.