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Bar News - February 18, 2011

Justice for Cambodia: A Long Time Coming


Cambodians stand around the remains of those slaughtered by the Khmer Rouge. Photo courtesy of the Documentation Center of Cambodia.
The Khmer Rogue’s reign of terror lasted only four years, but during that time Pol Pot and his followers imprisoned, tortured, and killed three million Cambodians. Now, 35 years later, justice may finally be coming to this small South Asian nation, and a NH Bar member had a front-row seat to the verdict in the first trial.

Alexandra (Xander) Meise Bay, a judicial clerk for Judge Jeffrey Howard at the US Court of Appeals, First Circuit, works mostly at the Warren Rudman Courthouse in Concord. She volunteered in 2010 as a clerk/judicial intern at the Extraordinary Chambers in the Courts of Cambodia (ECCC). She worked for the judiciary under the auspices of the United Nations Assistance to the Khmer Rouge Trials mission.

A History of Violence

The leaders of the Khmer Rouge carried out a systematic genocide in Cambodia from 1975-79. Hardly a family was spared during that merciless time and the country’s psychic wounds have remained open for years, partly because the war criminals, many still living, have not been brought to justice.

After the long civil war (20 years) which followed the Khmer Rouge’s overthrow, Pol Pot was tried and found guilty by a People’s Revolutionary Tribunal in Phnom Penh. However, he was never imprisoned for his crimes and he died before the present court was established.

The civil war did not end until 1998. In 1997, the country appealed to the UN to help it bring to justice those war criminals still living. The final agreement with the UN was not reached until 2003, however. The government insisted the trials be held by an international court in Cambodia because it wanted its people to be able to attend the trials and witness that Cambodia was striving to reach the level of justice found in the best countries in the world.

Many war criminals have been prosecuted in The Hague, but the courts there can deal only with those crimes over which they have specific jurisdiction. "There have been (and are) other tribunals operating in many places in the world: the Special Court for Sierra Leone, the Ad-Hoc Court for East Timor, and the Special Tribunal for Lebanon," said Meise Bay.

The establishment of the ECCC was preceded by several years of efforts to produce a court agreeable to both Cambodia and the United Nations, which was helping to fund the project. Upon each point in the development of the court, representatives from both Cambodia and the UN had to agree. The Cambodians wanted the "best of all tribunals."

The first verdict of the ECCC came down in July 2010. Kang Guek Eav, known as Duch, was charged with both domestic crimes and crimes against humanity. The court took some time off his sentence because he confessed to his crimes; in the end, Duch was sentenced to 35 years in prison.

His Excellency Sok An, the deputy prime minister of Cambodia, has stated: "The success of the Extraordinary Chambers will stand as a beacon in the region, signaling that the sinister culture of impunity is, indeed, being replaced by a culture of accountability...If we succeed in achieving our goals, the Cambodian people will have reached a landmark on their road to justice, peace, liberty and well-being."

Creating a Historical Record

No stranger to foreign service, Meise Bay had previously worked in the international political arena, helping in the development of countries such as Bosnia-Herzegovina, Albania, Macedonia, and Yemen. "I also interned at the New York Stock Exchange, the U.S. Department of State (in Spain, Switzerland, and Macedonia), and the UN War Crimes Tribunal in East Timor," said Meise Bay.

As part of the UN staff in Cambodia, she, along with 40 percent of the international staff, worked for free. She lived quite like an ordinary Cambodian citizen, with very modest accommodations and no frills. She ate and dressed simply, and walked or rode her bike for errands and took the court’s bus to work. "We’re creating a historical record, even though we know the court may not prosecute all those who could be prosecuted," she said.

Meise Bay says that there are "tens of thousands" of pages of evidence. There are three chambers to the Court: the Pre-Trial Chamber, the Trial Chamber (three Cambodians and two international members) and the Supreme Court Chamber (four Cambodians and three internationals). Meise Bay worked on rules for both the Pre-Trial Chamber and the Supreme Court Chamber. "These are new waters to navigate," she said. "It’s an on-going process."

The second case to be tried will look at the plan of the Khmer Rouge, which was the extermination of a whole people. Whole families were killed, whole villages decimated.

"One prison, known as Toul Sleng or S-21, was the prison at issue in Case 001 against Duch," said Meise Bay. "Although some historical accounts have estimated there were up to 17,000 victims, the most conservative estimates are for 12,272. This smaller figure is what Duch was indicted for, although the Tribunal acknowledged that the actual figure could be much higher. Only 12 of the victims survived and they were nearly dead."

The second case will name four defendants, the top leaders still living; Duch, from Case 001, was not a top leader. "This was a big issue in Case 001, which is why the distinction is important," said Meise Bay. "The ECCC has jurisdiction over ‘top leaders’ and ‘those most responsible’ for the crimes, and Duch fits into the latter category rather than the former."

An Open Court

The official government document telling about the trials and establishing the rules, states that there are hundreds of seats reserved for people who would like to observe the court’s actions; anyone over 18 may attend and there is no charge. In addition, people are encouraged to testify and may apply to the co-prosecutors to become witnesses. The document further states, "Civil parties can also organize their civil party action by becoming members of an association of victims." Civil parties also have the right to choose their own lawyers.

"There has been a new concerted effort to educate the public," said Meise Bay. "Actually, half the present population was not born yet during that time, so most of the younger people and the students still in school don’t know very much about the period. The history of that period is not taught in the schools – in fact, an American serves as the internal expert on Cambodian history for the ECCC."

The court is funded, as are other such international courts, by contributions from many UN countries. The Cambodian court costs about 30 million a year – a lot, but still less than the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (about $150 million per year each). Japan donated half of the international share for Cambodia, while several other countries contributed, also.

As the prime minister of Cambodia, Samdech Hun Sen has said, "These crimes of the Khmer Rouge period were committed not just against the people of Cambodia but against all humanity….We hope that our new court will be a successful model for Cambodia, but will also make a wider contribution to international justice."

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