On Monday, more than 32 years after the Khmer Rouge fell from power in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC) started proceedings on Case 002. The defendants on trial, Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, were all high ranking leaders within the Khmer Rouge regime that killed an estimated 1.7 million people from 1975 to 1979 through execution, torture, forced labor, and starvation.
Although this week’s proceedings involve only a preliminary hearing, it was unclear for a long time whether the case would happen at all. As we wrote last year, the ECCC has been plagued with allegations of corruption, state interference, and a generally unenthusiastic host government. This case follows the successful conviction of Kaing Guek Eav, a.k.a “Duch”, the former head of the infamous S-21 Security Center in Phnom Penh where thousands of Cambodians were imprisoned and tortured by the regime. But while there were few doubts that the ECCC would conclude that case, for a time it appeared that Case 001 would be the only case heard by the court.
Public interest in the court remains high but corruption and interference by the Cambodian government is still a major problem facing the ECCC. The atmosphere of the court has been described as “toxic” by some participants and several key UN personnel have resigned in recent months as a result. Questions still remain about whether two more cases, known as Cases 003 and 004, against members of the Khmer Rouge military and middle leadership will go forward after the Cambodian government stated that no additional cases would be allowed to proceed. As such, it is very possible that this case will be the last tried by the court and will mark the end of the quest to hold one of the bloodiest regimes of the 20th century legally accountable for their crimes.
Doing so will not be easy. Not only must the court contend with the controversy surrounding it so far, but there are legal issues that make this case far more contentious than the first one. As Kate Cronin-Furman explains, the theory of liability the prosecutor is pursuing essentially guarantees that this case will be far messier than the case that convicted Duch last year. In the still evolving field of international criminal law, these are issues that are still hotly debated among practitioners, policy makers, and observers. But while other major international tribunals and hybrid courts have successfully litigated similar issues of jurisdiction and liability, those venues did not suffer from the same problems of corruption and state interference as the ECCC. Whether this court can navigate those same rapids remains to be seen.
James Goldston of the Open Society Justice Initiative has an informative Q & A on the trial and its significance over on their blog. The start of the proceedings is an important step in bringing a close to this chapter of Cambodian history, but it is important to remember that this case alone may not be enough.
Originally published on Foreign Policy Blogs