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> cambodia
News & Views
ABCs of Cambodian Justice

A new tribunal is set to try the surviving Khmer Rouge leaders, but can the judges navigate Cambodia’s crazy justice system?

By Matthew Fishbane

Posted: February 13, 2007


O Cambodia!—land of Angkor Wat, auto-genocide and acronyms. Back in the early 1990s, we had only to know a few: FUNCINPEC was at odds with the CPP following elections sponsored by UNTAC. Ah, those were the days…

Today, the Cambodian alphabet soup, already home to more NGOs than a Darfur ‘fugee can shake a WFP-sponsored bag of rice at, is getting thicker than ever. The latest addition to the stew: the UN’s ECCC—or “Extraordinary Chambers in the Courts of Cambodia”—where investigations began last July that will ostensibly lead to prosecution, starting some time in 2007, of those responsible for genocide in Khmer Rouge–led Democratic Kampuchea of 1975 to 1979.

Currently, wrangling over “internal rules” has stalled the process. In the meantime, accusations fly between human rights groups, which grumble about a perceived lack of political will, and the government, which lashes out with charges of blackmail and affronts to sovereignty.

But if the courtroom experience of former KR leaders is any indication, it could be tough for the ECCC. For one, the UN and Cambodia are still squabbling over who should foot the bill, which could top $65 million. For another, technically, genocide applies only to a fraction of the total deaths in the period, which is usually pegged at somewhere around 1.7 million. (Those are just, like, boring old murders.) Oh, and the main defendants, septua- and octogenarians all, will need to stop dying off.

RIP, Bad Guys

First went the biggest fish, former KR leader Saloth Sar, who preferred the nom de guerre Pol Pot. In 1998, he was tried and convicted in a remote northwest jungle by a treacherous group of KR holdout peers, led by Ta Mok. On a Wednesday evening not long afterward, Pol Pot died of a heart attack, legend established, just before being tucked in to his mosquito netting by his wife, and just before being turned over to Cambodian authorities. His funeral pyre included his beloved bamboo easy chair.

Ta Mok, for his part, followed Pol Pot to the grave in 2006, never having stood trial for whatever it was that earned him his nickname, The Butcher. He was arrested in 1999 and charged with genocide and crimes against humanity, but died in detention in Phnom Penh.

It took a Frenchman, and his diplomatic backers, to bring the first official members of the Khmer Rouge before a Cambodian bench, and to have, as the AP correspondent at the time described it to me, “the first and only guy in the history of the world … convicted for something he did as Khmer Rouge.”

That was back in 2002, at the trial of a former KR regional commander named Sam Bith, who was being held responsible for the 1994 kidnapping and murder of three Western backpackers, in what came to be called the Khmer Rouge Train Ambush Case.

What? You wanted 1.7 million? Start with three foreigners.

The Frenchman was Jean-Claude Braquet, father of one of the backpackers. Following the murder, he’d given up his life as a professional stuntman—his last role was in The City of Lost Children—to singlemindedly pursue justice (and chain-smoke unfiltered Gauloises) in Cambodia, with the help of diplomats eager to test the judicial waters and shepherd him through the courts they’d helped invent just a few years before.

But a judicial trainwreck may be an inevitable by-product of foreign involvement with Cambodia’s Byzantine courts, which reflect the problems the country faces in many areas of its ongoing reconstruction: a lack of qualified, educated, experienced judges, lawyers, clerks, police, stenographers and, probably, janitors; a lack of funding for salaries and institutions; the persistent effects of a catastrophic rupture with the traditions and structures of the past under Pol Pot; and the questionable political will of Cambodia’s leaders.

‘Do I Look Like a Killer?’

At the time of Sam Bith’s trial, judges earned $25 a month, which may be one of the reasons Bith’s star witness, Nuon Chea—a.k.a. “Brother Number Two” and ideological head of the KR party structure at the height of its power—was never ruffled by Judge Sok Sethamony (now dead, shot five times sitting in his car in 2003).

Unlike most lower-ranking KR, Nuon Chea, 82, has always denied his involvement in Cambodian atrocities. To one accuser, he had laughed and asked, “Do I look like a killer?” His jovial words echoed what Pol Pot said in his last published interview: “Look at me. Am I a savage person? My conscience is clear.”

Chea, who lives humbly but freely in a stilted house in Pailin, a former KR stronghold in northwest Cambodia, had arrived to Bith’s trial wearing what one journalist described as “natty” 1960s tortoiseshell shades. And because of his ailing health, Judge Sethamony had a reclining chair, printed in a Disney motif, brought into the cramped Municipal Courtroom. When Chea had finished denying his or anyone else’s involvement in anything KR, he plopped down in the chair, his lacquered cane propped between his legs; just before lunch, he fell asleep.

Despite Brother No. 2’s denials, in this rare instance the defendant, Sam Bith, was convicted. After a single day’s hearing, during which no real evidence of his crime was presented (only counter-evidence to his alibi), a judge decided the 77-year-old really was “radio code 37,” the voice that had ordered the kidnapping and eventual murder of the backpackers; 10 Cambodians, killed in the ambush, were added to the tally for good measure.

Sam Bith’s conviction has now reached an appellate court, which only last month upheld the sentence of life imprisonment and ordered him to pay compensation totaling hundreds of millions of riel (about $97,000), far beyond his meager resources, to the families of his victims. The ten Cambodians he was convicted of killing are worth $3,700 each, the foreigners $20,000. At 74, Sam Bith’s lawyer has said, the former KR general may not live long enough to appeal to the Supreme Court. At least he knows he won’t have to set foot in the ECCC.

Nuon Chea, however, may not have that luxury. In cross-examination during Sam Bith’s trial, the prosecution had only one question for Nuon Chea, a question at the heart of the idea of a tribunal to judge the Khmer Rouge. Braquet’s Cambodian lawyer stood up, turned to Nuon Chea, and said, “You are 77 years old. Can you remember well?”

“I remember clearly,” Brother No. 2 said emphatically. “I forget only some things.”

Matthew Fishbane is a New York–based freelance writer whose work has appeared in the Christian Science Monitor and Salon.com. He lived in Phnom Penh for three years.

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