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More than twenty-eight years after the Pol Pot regime was defeated in early 1979, there is now the real prospect that a small number of surviving Khmer Rouge leaders will be brought to trial before the Khmer Rouge Tribunal, officially known as the Extraordinary Chambers of the Courts of Cambodia (ECCC). When this happens it will be the first occasion that any Khmer Rouge leader appears before a properly constituted court. In August 1979, shortly after the invasion of Cambodia by Vietnam that ousted the Pol Pot regime, the newly installed People's Republic of Kampuchea put Pol Pot and Ieng Sary on trial before a 'Popular Revolutionary Tribunal' which sentenced them to death in absentia. Conducted with minimal regard for legal niceties, this event is widely regarded as having been a show trial in character. Since that time two of the most senior Khmer Rouge leaders, Pol Pot and Ta Mok have died, in 1998 and 2006 respectively.
After much delay the ECCC was finally established in July 2006 with the backing of both the Cambodian government and the United Nations. That it was delayed for so many years is judged by many observers to have reflected a reluctance on the part of the Cambodian government to see a tribunal in action given the large number of current politicians and officials who had links with the Khmer Rouge regime. There is also little doubt that the Chinese government, which exercises great influence in Phnom Penh, would have preferred that the tribunal did not come into being because of its well-documented role as a major supporter of the Pol Pot regime.
Once established, the ECCC was further delayed from functioning by a series of technical disputes over the right of foreign lawyers to appear before the tribunal - opposed for months by the Cambodian bar association - and disagreements between the Cambodian and international judges sitting on the tribunal - over a range of procedural issues. These issues were only finally resolved in May of this year.
With these issues resolved, the ECCC's prosecutors announced on 18 July that they have submitted the names of five individuals to the tribunal for consideration in relation to twenty-five 'distinct factual situations of murder, torture, forcible transfer, unlawful detention, forced labour and religious, political and ethnic persecution'. While the names of the five individuals have not been released, there is little doubt that they include Nuon Chea, known as Brother Number Two and the Pol Pot regime's principal ideolgoue, Khieu Samphan who served as the regime's head of state, Ieng Sary, who was foreign minister, and Kaing Khek Iev, better known as Duch, who directed the Tuol Sleng extermination centre, or S-21. Observers in Phnom Penh are speculating that the fifth individual is Khieu Thirith, Ieng Sary's wife, who was minister for social affairs in the Pol Pot regime.
Of the five names just listed only Duch is currently in custody, though his detention relates to charges brought by the government separately from the ECCC's jurisdiction. The other four are living unrestricted lives either in Phnom Penh or in Pailin in western Cambodia.
It is not entirely clear what will happen next. Ieng Sary, Khieu Samphan and Nuon Chea all severed their links with the rump of the Khmer Rouge in the 1990s. Ieng Sary received a pardon for his past from the then King Sihanouk and Nuon Chea and Khieu Samphan were granted amnesties by Hun Sen in 1998. While there is a presumption by many observers that past pardons and amnesties will be overridden by the ECCC's procedures, there seems little doubt that this will be a contentious issue likely to be addressed by defence counsel once trials begin. Whatever is the case, there is also the fact that age may yet defeat the effort to try the likely defendants. Nuon Chea is in his eighties, while both Khieu Samphan and Ieng Sary are in their mid-seventies, with Ieng Sary in poor health. And there is some concern that, while having moved very slowly to reach its present position, the ECCC may exhaust its budget of nearly US$60 before the planned trials are completed.
All this said, the announcement that prosecutors have submitted the names of individuals to be considered for prosecution is the most important development in the long-running saga of efforts to bring the top Khmer leadership to justice. Not all agree that prosecution before the ECCC is the most desirable course of action to bring some form of end to the nightmare memory of the Pol Pot period. The respected biographer of Pol Pot, Philip Short has expressed his doubts, observing that a trial procedure that focuses on a limited number of very senior figures will allow the government to disregard the large number of less prominent Khmer Rouge officials who continue to occupy positions within the administration. On the other hand, many observers share the view expressed by Craig Etcheson, one of the most active foreign scholars to have documented the Khmer Rouge's crimes, that trials before the tribunal will play an important part in challenging the culture of impunity that continues to exist in Cambodia. Whatever might be the case, and echoing Winston Churchill's famous words after the Second Battle of El Alamein, what has now happened is not the end, 'but it is, perhaps, the end of the beginning'.
WATCHPOINT: Will the judges of the ECCC now proceed to issue indictments against the individuals named by the tribunal's prosecutors and, if so, will the resulting trials lead to convictions?
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