Last October the Extraordinary Chambers in the Courts of Cambodia (ECCC) convened in Phnom Penh to resume what many regard as the most important international criminal prosecution since the Nuremberg trials. Currently on trial are the two highest-ranking surviving leaders of the Khmer Rouge, Khieu Samphan, the onetime chief of state, and Nuon Chea, who made many important decisions and is known as Brother Number Two. They face charges of genocide, torture, murder, forced marriages, rapes, enslavement, and other atrocities dating back to the period, between April 1975 and January 1979, when the Khmer Rouge ruled Cambodia. During that time, 1.7 million Cambodians, a quarter of the population, were killed or died of starvation or disease.
The first part of their trial concluded in October 2013 after 221 days of testimony from ninety-two witnesses. The octogenarian ex-leaders were found guilty of crimes against humanity and last August received sentences of life in prison. But those convictions covered only a narrow range of offenses—the executions of soldiers and officials from the Khmer Republic, the defeated US-backed regime, and the forced evacuations of hundreds of thousands from Phnom Penh and other urban centers in April 1975. Anticipating that the proceedings could drag on for years, the prosecutors decided to split the charges against them into two groups and save the most explosive ones, including genocide, torture, and murder, for last. “For many Cambodians, these are the crimes that defined the regime and affected them and their loved ones personally,” said Heather Ryan of George Soros’s Open Society Foundations, who has monitored both trials. Some observers believe this could be the last case to be heard by the ECCC—the final opportunity to pass judgment on the masterminds of the most brutal crimes of the second half of the twentieth century. A verdict is not expected until 2017, and the appeals process could drag on for another two years.
As the trials of the Khmer Rouge leaders move forward in the Phnom Penh courtroom, an equally fascinating drama has been building elsewhere. Since 2009, investigators have been gathering evidence against five lower-ranking Khmer Rouge figures—district leaders and military commanders—who allegedly carried out purges, committed acts of genocide against minorities, and ran detention camps in which thousands were tortured and executed. UN officials say that these five suspects bear collective responsibility for the deaths of nearly 100,000 people. “The evidence against them,” I was told by a source close to the tribunal, “is horrific.” (One of them died of natural causes in 2013 before he could be brought to trial.)
It is an open question whether the four surviving lower officials will ever have their day in court. Cambodia’s prime minister, Hun Sen, a former Khmer Rouge fighter who has ruled Cambodia for nearly three decades and who has always been wary of the tribunal, claimed in 2009 that expanding its mandate beyond the five principal defendants could set off a civil war. (Aside from Khieu Samphan and Nuon Chea, the five included Kaing Guek Eav (“Duch”), the former head of internal security, Ieng Sary, the former foreign minister, and his wife, Ieng Thirith.) The government has impeded investigations, and three years ago a prominent Swiss jurist resigned in frustration at its delaying tactics. In February 2015, Hun Sen again insisted that pressing forward would send former Khmer Rouge foot soldiers—many of whom are in their sixties and seventies—back to the jungle to carry on fighting. “If a war occurred, how many people would be killed?” he asked.
Now the prime minister is locked in a test of wills with the United Nations that is likely to come to a head by the end of this year. Defying Hun Sen’s wishes, International Investigating Judge Mark Brian Harmon—who was appointed to the court by the UN secretary-general and approved by Cambodia’s Supreme Council of Magistracy, a nine-member body presided over by the king—announced in early March that he was filing charges against two of the four surviving lower-ranking suspects.
One is Meas Muth, the Khmer Rouge naval commander. Among a litany of crimes, Muth allegedly ordered the arrests of foreign sailors, including Australian, British, and American citizens, who had strayed into Cambodian waters, and had them delivered to Phnom Penh’s notorious S-21 prison, where they were tortured and executed. The second suspect is Im Chaem, a Khmer Rouge district leader who ran a rural commune and a detention center in which many thousands died. On March 27, Harmon filed charges against a third suspect, Ao An, a former Khmer Rouge official, for premeditated homicide and crimes against humanity, stemming from the murders at two detention centers and an execution site.
Meas Muth and Im Chaem, who live openly in western Cambodia, in former Khmer Rouge strongholds, have ignored the tribunal’s repeated summonses to answer investigators’ questions; Ao An is the only one of the three who voluntarily appeared in court to answer the charges. On March 24 a spokesman for the Interior Ministry flatly stated that “we will not arrest” Meas Muth and Im Chaem, and so far Harmon has declined to issue an arrest warrant for the pair, apparently unwilling to risk—at least for the moment—a direct confrontation with the Cambodian government. Instead, he charged the Khmer Rouge officials in absentia, giving him time to build cases against the two suspects while preparing his next move. Even more than the trial of Khieu Samphan and Nuon Chea, the showdown between Hun Sen and Harmon is emerging as a test of the international criminal justice system, and of the United Nations’ credibility.
The ECCC occupies a renovated auditorium at the Military High Command Headquarters compound on the western outskirts of Phnom Penh, ten miles from the city center. On a March morning I passed through a metal detector and took a seat in the second-floor gallery, separated from the courtroom by a wall of bulletproof plexiglass. Cambodian high school students took up almost all the other seats. They were there because of a program initiated by the tribunal’s public affairs office, which has bussed tens of thousands of citizens to the court since the trials began in February 2009.
Five judges, three Cambodians and two from France and Austria, sat on a raised bench in the rear of the chamber, beneath the flags of the United Nations and Cambodia. To their left were the prosecutors, accompanied by the civil parties—victims who, under French law, to which the court subscribes, can confront the accused and claim reparations for the harm that they suffered under the Khmer Rouge. The prosecutors, like the judges, consist of both foreign experts and Cambodians. The foreigners are nominated by the UN secretary-general and approved by Cambodia’s Supreme Council of Magistracy; the Cambodians are directly appointed by the supreme council.
Facing them across the room were the defense lawyers and nurses and Khieu Samphan, eighty-three, a frail-looking figure who rarely looked up during the proceedings. During the week that I attended the trial, Nuon Chea, eighty-eight, citing back pain and general poor health, remained in a detention cell located in a small house a minute’s-golf-cart ride from the courthouse. The building has a small garden, television, private bathrooms, and a kitchen with its own chef.
In the center of the chamber sat Witness Number 381, Neang Ouch, alias Ta San, a trim, handsome figure of seventy-two. He is not himself charged with a crime but was subpoenaed by the international prosecutor, Nicholas Koumjian, to testify before the court and was free to leave when his testimony was finished. According to the testimony and affidavits of several survivors, he had been the chairman of Tram Kak district, west of Phnom Penh, between 1977 and 1978. Tram Kak had been the site of a notorious “model commune” where much brutality had taken place, and of a detention center in which 10,000 people had been executed. A high school physics teacher before the Communists seized power, Neang Ouch had allegedly been placed in his position by his brother-in-law, Ta Mok, a feared Khmer Rouge leader also known as both “Brother Number Five” and “The Butcher.”
Neang Ouch denied all knowledge of Khmer Rouge crimes. In bland tones, the former teacher described the commune as “a simple, ordinary cooperative” where people lived in harmony and where those who failed to meet their production quotas were gently “reprimanded.” He had, he claimed, been a lowly “assistant” on dam-building and irrigation projects; his biggest responsibility was to escort foreign visitors, including Western journalists, on tours of the commune. (These were carefully stage-managed affairs that duped many visitors into believing that the Khmer Rouge was building a model agrarian society.)
Koumjian, the American prosecutor, asked Ouch to corroborate an account by one survivor that the Khmer Rouge had ordered workers to put on fresh uniforms and bathe when foreign visitors arrived. Those who were not “washed clean,” the survivor testified, would be killed—or, as the survivor put it, employing a Khmer Rouge euphemism, “withdrawn.”
“I did not know the details,” Ouch insisted. “I was in the rice fields, or digging canals. I was just an assistant to the district committee, assigned there by Ta Mok.” All those who identified him otherwise, he replied, were either “confused or made a mistake.”
Koumjian asked a Cambodian colleague to read aloud Article 545 in Cambodia’s criminal code, which mandates a five-year prison sentence for perjury. The prosecutor’s warning apparently had an effect. During the next day’s testimony, Koumjian confronted Ouch with a letter in his own handwriting. “Take the [women] who are detained, and send the older children to the work units,” it read. “Keep the younger children with their mothers, and sweep them all clean.” Ouch admitted that this was an execution order, and acknowledged that he had written it. But he insisted that he had been obeying a superior. “If I’d refused…I would have been in danger.”
The campaign to create an international court to prosecute the Khmer Rouge dates back to the mid-1990s. The Vietnamese army had driven the Khmer Rouge from power in 1979 and withdrawn from the country in 1991, but Khmer Rouge remnants were still waging a guerrilla war in the Cambodian countryside, and all the top leaders, including Pol Pot, Brother Number One, remained at large. In 1994, the US Congress passed the Cambodian Genocide Justice Act, which provided funding for Yale University to collect evidence of the Communist regime’s atrocities. Yale’s Cambodian Genocide Program obtained access to the 100,000-page archive of the Khmer Rouge’s security police—a guide to the regime’s record of arrests, purges, torture, and executions.
At the same time, Cambodia’s Documentation Center, run by Youk Chhang, a survivor of the Khmer Rouge regime who had lost many members of his family, tracked down reams of incriminating documents. He also located Khmer Rouge detention facilities, identified witnesses, and found dozens of mass graves, providing valuable forensic evidence and building a strong foundation for prosecutions.
In June 1997, Cambodian Co-Prime Ministers Hun Sen and Norodom Ranariddh, the son of former King Sihanouk, wrote a joint letter to Kofi Annan, the UN secretary-general, requesting help in establishing a Khmer Rouge tribunal. Apparently they had several motives. They were eager to establish their willingness to punish the monstrous behavior of the Khmer Rouge. They were also eager to have the aid money that would finance a tribunal. They wanted to intimidate and demoralize the few remaining Khmer Rouge fighters. Their letter “provided the diplomatic and legal basis for the US to move forward,” I was told by David Scheffer, who from August 1997 to 2001 was US ambassador-at-large for war crimes, and now serves as the UN secretary-general’s special expert on United Nations Assistance to the Khmer Rouge Trials. Secretary of State Madeleine Albright pressed the Security Council to back a court, but France, Russia, and China vetoed the proposal, arguing that the Khmer Rouge were no longer a security threat and the council had no jurisdiction.
Hun Sen ousted Ranariddh in a coup d’état in the summer of 1997. Pol Pot died the following year, and shortly after that the last Khmer Rouge guerrillas surrendered and Cambodia’s two-decade-long civil war came to an end. In 1999 UN officials from the secretary-general’s staff and the Cambodian government, taking account of the Security Council’s veto, began negotiations to set up an alternative to a tribunal held under Security Council auspices. This would be a Cambodian court that would have the cooperation of Hun Sen, while the prosecution would be conducted by both Cambodians and an international staff. The Cambodian supreme court would have to approve prosecutors.
In 2003, after four years of deadlocks and objections, the UN General Assembly, the secretary-general’s office, and the Cambodian government approved the agreement that established the ECCC. But there was one major sticking point: the number of Khmer Rouge criminals who would be tried. The United Nations proposed an initial number of thirty, and the Hun Sen government wanted far fewer. The court settled on a vague number of “ten to fifteen.” The mandate would be limited to “senior leaders” and those held “most responsible” for the Khmer Rouge atrocities. One court official says that Hun Sen had a “limited vision of accountability.” He was after all a member of the Khmer Rouge between 1970 and 1977, when he fled to Vietnam.
In February 2009 the tribunal at last brought its first suspect to the dock: Kaing Guek Eav, known as Duch, the former head of internal security and the overseer of the Tuol Sleng S-21 prison in Phnom Penh, where 18,000 people were tortured and killed. Duch was convicted in 2012 and sentenced to life in prison. He is being held in isolation at Kandal Prison, built thanks to financial aid from the Australian government on the outskirts of Phnom Penh.
The efficiency of the Duch trial, however, may have distracted observers from shortcomings of the judicial process. Because of bureaucratic delays, the top Khmer Rouge leaders died before they could be brought to court. Pol Pot and his deputies, Ke Pauk and Ta Mok, the Butcher, were all dead before the Duch trial began. Ieng Sary, the Khmer Rouge’s foreign minister, died in 2013 at the age of eighty-seven in detention while awaiting trial; his wife, Ieng Thirith, was deemed mentally unfit to stand trial. And all but some 10,000 of the killings carried out by the Khmer Rouge could not be tried as genocide under international law, because the victims belonged to the Khmer majority.
As the Duch trial got underway a new confrontation was taking place. Cambodia’s information minister announced in 2011 that if investigating judges—jurists who, under French law, are responsible for building criminal cases—wanted to pursue figures beyond Duch and the top leadership, “they should pack their bags and leave.” The government found a willing collaborator in Siegfried Blunk, a German investigative judge who, experts on the trial told me, colluded with his Cambodian counterpart, You Bunleng, to block investigations into five additional suspects, all second-tier officials—so-called Cases 003 and 004. Blunk sidelined international investigators and handed their assignments to Cambodians, who compiled perfunctory reports, forged documents, and tampered with witnesses. When confronted by evidence of his obstruction, sources say, Blunk agreed to step down.
In 2011 UN Secretary-General Ban Ki-moon chose Laurent Kasper-Ansermet, a respected Swiss jurist who had been a reserve judge at the tribunal, to replace Blunk. But Kasper-Ansermet’s tenure was troubled from the start. Cambodian officials mocked him as “the twitter judge”—he had tweeted about the court for years. They questioned his objectivity and refused to approve his appointment. Kasper-Ansermet had to delay his arrival in the country because of fears that he would be detained at the border. You Bunleng, apparently following the wishes of Hun Sen and his top leaders, declared Cases 003 and 004 closed. He refused to provide Ansermet’s field investigators with vehicles, drivers, and interpreters. “It was a total boycott,” a source close to him told me. In March 2012, citing “egregious dysfunctions” at the court, Kasper-Ansermet resigned.
Harmon, who took over in October 2012, reinvigorated the judicial process. Unlike Kasper-Ansermet, he went out of his way to befriend You Bunleng, taking him out on a pleasure cruise on the Mekong River. The two men drank together and brought their staffs together for office parties. Ultimately You Bunleng agreed not to stand in Harmon’s way. Though the Cambodian investigators remain sidelined, as Hun Sen would want, Harmon’s international team of investigators has worked without interference across the country. They can make use of cars, drivers, interpreters, and stenographers, and have conducted one hundred field missions and four hundred interviews.
Hun Sen broke a six-year silence about the investigations in February 2015 when he warned that the tribunal would provoke the remaining supporters of the Khmer Rouge and lead to civil war. Scheffer dismisses his statement as inflammatory rhetoric. “I am not aware of any…basis for the view that hostilities would erupt in Cambodia if the mandate of the court is fully completed,” he says. Tribunal insiders believe that Hun Sen is facing pressure from China, the onetime Khmer Rouge ally and benefactor, to shut down the tribunal. Investigators have been gathering statements about China’s relationship with the murderous regime, including its construction of the Kampong Chhnang Airport north of Phnom Penh.
A second motive for Hun Sen’s interference may lie closer to home. It is no secret that top figures in both the government and in Hun Sen’s Cambodian People’s Party had prominent parts in the government of the Khmer Rouge. National Assembly Chairman Heng Samrin served as the commander of the Fourth Division of the Eastern Zone—the region along the Vietnamese border—and is suspected of directing purges and mass killings during incursions into Vietnam in 1977. Chea Sim, the president of the Senate, was a sector leader inside the Eastern Zone. Both men have refused to testify in the trials of Nuon Chea and Khieu Samphan, and are said to be fearful, a source told me, that they could be “shamed” by information divulged during the trials of the lower-ranking officials. “The patronage system can only be secure when you have absolute loyalty,” says Virak Ou, a leading human rights activist in Phnom Penh. “Hun Sen relies on these guys to keep him propped up.”
Until now Hun Sen has been willing to tolerate the tribunal, which confers on him a measure of international legitimacy and provides a reliable source of cash. Japan, France, Germany, the United Kingdom, Australia, the US, and other donors have spent nearly $200 million to keep the court running in Cambodia over the past decade. Some of that money, human rights officials in Cambodia allege, has ended up in the pockets of Hun Sen’s cronies. But with the threat of further trials ahead, the prime minister may believe that the damage will be greater than any possible advantage. And shutting it down seems unlikely to create a backlash at home. In the first years the tribunal forced a reckoning with Cambodia’s past. But Virak Ou told me that after six years of trials, “There is a feeling that it has gone on too long. I think most Cambodians, including myself, ignore the court. It is off the radar screen.”
Hun Sen may feel that he has nothing to fear from his donors either. During his thirty years in power, he has tightly controlled all of Cambodia’s government institutions, as well as the media, and brutally attacked members of the opposition—with few strong protests from other countries. Moreover, Hun Sen and his inner circle have been accused, with plenty of evidence, of plundering forests, grabbing land from poor peasants, and lining their pockets with ill-gotten wealth.
This record led to a near defeat of the Cambodian People’s Party in the July 2013 elections. The election result clearly alarmed Hun Sen and led to an even harsher crackdown on dissent. Last year police beat up antigovernment protesters who defied a ban on demonstrations and demanded a license for Cambodia’s first opposition television channel. Western governments largely ignored the beatings. “Hun Sen,” Virak Ou told me, “has been condemned for human rights violations, but never has he lost his donor funding. He thinks that if he can keep pushing back on the tribunal, the UN will ultimately back down.”
Tribunal officials told me that Harmon is likely to have an indictment ready against Im Chaem, Meas Muth, and Ao An by late this year. Even if Harmon’s coinvestigating judge, the Cambodian lawyer You Bunleng, votes against the indictment, the trials still have a good chance of going forward. The final decision would then be made by the Pretrial Chamber, consisting of three Cambodian and two international judges. By ECCC rules, at least one international judge would have to join all three Cambodian judges to block an indictment, which is seen as unlikely. At that point, Harmon will have to issue an arrest warrant—a move that could place him in direct confrontation with Hun Sen. Investigators in the field are also compiling dossiers against another Khmer Rouge suspect in Case 004, who is accused of carrying out purges of the party ranks in which thousands were executed.
In An Long Veng, a former Khmer Rouge stronghold near the Thai border, Im Chaem, seventy-two, maintains her innocence. “Why should I be worried about the charges against me?” she told a journalist who tracked her down soon after the tribunal filed charges. “I am not wrong, the person who charged me is wrong.” Meas Muth, the former naval chief, stands accused of responsibility for “forced labor, inhumane living conditions, unlawful arrest and detention, physical and mental abuse, torture and killing…which resulted in at least thousands and quite probably tens of thousands of deaths.” He lives openly in Samlot, another former Khmer Rouge sanctuary, where Duch was captured in 1999.
During the late 1970s, Meas Muth attended many gatherings of top Khmer Rouge officials, including Khieu Samphan and Nuon Chea, where murderous policies were set into motion. “When I came to those meetings, it was only to discuss rice production,” Muth told a reporter from the English-language Phnom Penh Post during an interview in 2001. He also made a familiar defense of the lower-ranking Khmer Rouge officials who carried out atrocities. “The low ranks had to respect the orders. It was like under Hitler,” he said. “Like [former S-21 chief] Mr Duch, he was ordered to kill people and if he did not kill them, he would have been killed.” At this point, it remains unclear whether Meas Muth, Im Chaem, and the other Khmer Rouge murderers will have the opportunity to test that argument in court. The Hun Sen regime may step in once again to sabotage the pursuit of justice.