31 Oct Symposium on the ECCC: Narrating History at the ECCC – A Tale of Two Trials
The Extraordinary Chambers in the Courts of Cambodia (ECCC) was created by the Cambodian government in partnership with the United Nations. Its purpose was to prosecute crimes under international and Cambodian law committed between 1975 and 1979, when Cambodia was ruled by the Communist Party of Kampuchea (CPK), better known as the ‘Khmer Rouge’. On 22 September 2022, the ECCC’s appeal chamber delivered its final judgment, upholding former CPK leader Khieu Samphan’s conviction for war crimes, crimes against humanity and genocide.
Responding to that final judgment, this Opinio Juris symposium reflects on the ECCC’s trials, tribulations, and legacy. In this post, Sarah Williams compares the narrative that emerged from the ECCC with that of the 1979 Khmer Rouge tribunal, in relation to genocide and other crimes (for more on the ECCC’s adjudication of genocide, see Rachel Killean’s post in this symposium).
[Dr Sarah Williams is a Professor at the University of New South Wales, in the School of Global & Public Law.]
The ECCC differs from other international criminal tribunals in that it is focused on events that are very much in the past, some 40 years ago.
The ECCC is also the first tribunal that follows a contemporaneous national trial: the 1979 ‘genocide’ trial of Pol Pot and Ieng Sary. Exploring how and which narratives are produced by these two trials shows how different institutions, at different points in history, produce different narratives or reinforce state-sanctioned narratives.
1979 Trial Narrative
The 1979 People’s Revolutionary Tribunal was established by the Vietnamese-backed regime that assumed control of Cambodia following the fall of the Khmer Rouge in January 1979. It tried in absentia on two senior leaders- Pol Pot and Ieng Sary – who were at the time at large and claiming to represent Cambodia.
The Tribunal met for five days in Phnom Penh, hearing from 39 witnesses. It delivered its judgment in August 1979, finding both men guilty of genocide for the killings in Cambodia and sentencing both to death.
Although Cambodia was a signatory to the Genocide Convention, the judgment applied its own definition of genocide, one to reflect that what had happened in Cambodia was ‘much more serious’ than that in the Convention. The Tribunal’s definition did not focus on protected groups and captured a far wider range of conduct than in the Genocide Convention.
The politics of the Cold War meant that the Vietnamese-backed regime was not recognized in the West. The 1979 trial has been largely discredited by many in the West as a show trial. The judgment was certainly an important political statement for Vietnam and the new regime.
The trial reflected the standard narrative that emerged after the fall of the regime: responsibility for the violence committed during the Khmer Rouge period fell to a few senior leaders of the regime – the evil Pol Pot – Ieng Sary clique.
This narrative served several purposes. First, it absolved other Khmer Rouge cadre at all lower levels from responsibility. They were merely following orders or acting to save their own lives from a self-destructive regime cannibalizing itself in a frenzy of paranoia and violence.
Second, concentrating on Pol Pot and Ieng Sary allowed space for the Government to continue to negotiate surrender and amnesty with other higher level Khmer Rouge leaders, including reportedly Nuon Chea.
Third, this insulated former Khmer Rouge cadre that had supported the Vietnamese invasion of Cambodia and became part of the new Vietnamese-backed regime from responsibility. Importantly, this included the current Prime Minister, Hun Sen. Instead, these former cadre are portrayed as the saviours of the nation.
Fourth, it established the legal and moral justification for Vietnam’s action in invading and essentially occupying Cambodia – to save Cambodia from a genocidal regime. The judges point to the ‘valiant, protracted and arduous struggle, shoulder-to-shoulder with the fraternal peoples of Viet Nam and Laos’.
Fourth, the judgment highlights the links between China and the Khmer Rouge and suggests that China manipulated the Khmer Rouge towards its own ends, including triggering the armed conflict with Vietnam.
The Tribunal appointed a defence lawyer and international experts to advise it on key issues, including the legal definition of genocide. However, the lawyers and experts were not particularly active during the hearing and their clients did not participate, resulting in an essentially one-sided version of events.
The ECCC Case 002 Narrative
Fast forward to 2022 and we see differences but also clear echoes from the 1979 trial.
The most immediately obvious difference is the magnitude of the justice process at the ECCC compared to the 1979 trial. Consistent with its rejection by the West, the 1979 Tribunal does not feature to any real extent in the ECCC proceedings, with the main focus being the ECCC’s decision that the pardon given to Ieng Sary by the Cambodian government in 1996 did not preclude it from proceeding against him.
The ECCC was established pursuant to an agreement between the Cambodian government and the United Nations, supported by mainly Western states and Japan. The ECCC’s operations spanned 16 years, employing thousands of personnel – both local and international. The Case 002 was so immense it was divided into two trial segments, each of which lasted several years, with the judgements of the Trial Chamber exceeding 3,000 pages in total.
The jurisdiction of the ECCC was selective: it focused only on the period the Khmer Rouge was in power (17 April 1975 to 6 January 1979) and it limited the court to consider only senior leaders of Democratic Kampuchea and those most responsible for the regime’s crimes.
Again, this selective choice of jurisdiction had several impacts on the narrative that has emerged. First, the ECCC echoes the 1979 trial’s exclusive focus on senior leaders, thus reinforcing the standard narrative that emerged from 1979 onward that responsibility for the regime’s crimes lies with a small group of ‘evil’ men and women at the top of the hierarchy.
This means that the ECCC has done little to explore the responsibility of lower-level commanders and officials, such as camp guards or those at execution centres, who did much of the direct killing. The complexities of those officials, offenders yet often also victims of the regime, are hinted at in the Trial Chamber’s weighing of their reliability as witnesses but seldom directly acknowledged or explored.
Second, the limited focus on senior leaders means that those former Khmer Rouge cadre in or associated with the Cambodia government have continued to be shielded from closer inspection. The Cambodian government has continued to control the number and level of those facing trial by effectively blocking cases beyond Case 002. It has also obstructed defence requests to interview senior government officials who were previously Khmer Rouge cadre.
Third, the limited temporal and personal jurisdiction also shields the actions of other states – such as the United States, China and Vietnam – in creating the circumstances that led to or supported the Khmer Rouge before, during and after it was in power. While the Trial Chamber mentions the broader historical context it does so only where it provides factual context to the crimes committed directly by the regime within Cambodia.
Key differences emerge. First, the ECCC stuck closely to the definition of genocide found in the Genocide Convention, which does not protect members of political groups. As the ECCC found that most victims were targeted on political grounds, it characterized most killings as crimes against humanity. The Trial Chamber found genocide only found in relation to killings of the Vietnamese and the Cham ethnic groups (TC Judgment, Case 002/02, paras 4003 and 3993). This makes it hard to label the ECCC as a ‘genocide’ tribunal as it is colloquially known.
Second, by the time the trial in Case 002 commenced, the list of senior leaders that remained alive had reduced greatly. Many senior leaders or officials, including Pol Pot himself, had died in the intervening years. This left four remaining ‘senior leaders’: Nuon Chea (Pol Pot’s No 2); Ieng Sary (foreign minister); Khieu Samphan (former head of state); and Ieng Thirith (Minister of Social Affairs). Ieng Sary and Ieng Thirith died before facing a judgment; Nuon Chea died after being convicted in Case 002/01 and Case 002/02 but while his appeal in Case 002/02 was pending.
The roles of these surviving leaders and the need to link specific accused to specified crimes has restricted which crimes could be proven against them; for example, it was not possible to link Khieu Samphan to the crime of genocide as committed against the Cham minority group. This means that the narrative that emerged from Case 002 is not a complete account of responsibility, as many of the key actors during the regime – in particular Pol Pot – loom in the shadows of the judgments, with their presence and responsibility largely unacknowledged. In this way, the outcome before the ECCC differs from the 1979 trial, where those not in the courtroom were directly condemned by the tribunal.
Third, the active participation of defence counsel enabled counter narratives to be heard, such as the argument that some of the regimes policies were justified by the extreme situation it found itself in – the impacts of a civil war, massive food shortages, threats from bombing by the United States and an armed conflict with Vietnam. While the Trial Chamber ultimately did not find these arguments persuasive, it made clear that neither the regime nor its policies were inherently criminal – to do so would have condemned socialism. Instead, those policies were effected via criminal means.
It is long acknowledged that courts create narratives of responsibility for violence and the law and legal process often cloaks such judicial narratives with authority. Yet, as this brief consideration of two ‘genocide’ trials by two different institutions 40 years apart shows, selectivity in the way such trials are set up and how they are conducted influences the narratives that will emerge. Judicial narratives are neither neutral nor comprehensive.
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