[Submitted to the Khmer Times on 18 November 2018.]
National and international media prominently reported the conviction of Nuon Chea and Khieu Samphan announced by the Extraordinary Chambers in the Courts of Cambodia on 16 November.
As was to be expected, the quality of this coverage varied. What might have been unexpected by many readers, however, was the degree of ignorance displayed by the New York Times. Some of this ignorance served as the basis for an attempt to use the Khmer Rouge trials to discredit the Cambodian government.
The Times report of the verdict, by Hannah Beech, declares that “Cambodia was known during the Khmer Rouge era” as the “state of Kampuchea”. It does not require extensive historical research to discover that the Khmer Rouge regime was called “Democratic Kampuchea”. Perhaps Beech and the Times have confused the KR regime with the government that overthrew it in 1979, which in 1989 changed its name from “People’s Republic of Kampuchea” (PRK) to “State of Cambodia”.
Beech begins by calling the ECCC “an international tribunal” but later refers to it as a “United Nations-backed tribunal”. Neither is an accurate description, as anyone knows who has followed the history of the court with a modicum of attention. The ECCC is a hybrid, part of the courts of Cambodia, as its name states, but “extraordinary” in that it includes international judges selected by the UN and operates under a structure jointly managed by Cambodia and the UN.
The trials have not been held, as Beech claims, “in a custom-built courthouse on the outskirts of Phnom Penh”. The trials, and many of the associated offices and court infrastructure, have been housed in buildings that were “custom built” for the headquarters of the Royal Cambodian Armed Forces. This fact is relevant to Beech’s most outrageous claim, namely that Prime Minister Hun Sen “opposed the formation of the tribunal in the first place”.
Are Beech and/or the Times counting on readers who are as ignorant as they appear to be? Consider the following:
1. Beginning in 1979, the PRK consistently called for international backing and participation in a trial of leaders of the Khmer Rouge. Lacking such backing, it conducted its own trial (necessarily in absentia) of the top then surviving KR leaders Pol Pot and Ieng Sary. In 1986, Hun Sen repeated the 1979 request for international assistance in a trial in a letter to the UN secretary general.
2. The more immediate path to the ECCC started in June 1997, when First and Second Prime Ministers Norodom Ranariddh and Hun Sen wrote to the UN, asking for international assistance in organising and conducting trials.
3. After negotiations between the UN and the Cambodian government, the latter demonstrated its support for a hybrid tribunal through a unanimous vote of the National Assembly in 2001.
4. The UN Office of Legal Affairs abruptly withdrew from the negotiations in 2002. Had the Cambodian government not wanted the trials, this would have been an opportunity to abandon the effort at virtually no political cost. Instead, it went on a year-long diplomatic offensive that resulted in a vote by the UN General Assembly instructing the OLA to resume the negotiations.
5. Unlike other countries in which the UN has been involved in trials of former leaders, Cambodia has made significant contributions to the costs of the KR trials. In addition to giving up the headquarters of the RCAF for more than 12 years, it has made a host of in-kind contributions in infrastructure services and facilitation and protection of investigations; their value is estimated at $16 million. The Cambodian government’s cash contributions to the functioning of the ECCC have been $29 million. Among governments providing support for the ECCC, Cambodia’s contribution is surpassed only by Japan’s.
6. Through most of the trials, government radio and TV stations have provided live coverage of the proceedings.
7. Beech may be correct when she says that Prime Minister Hun Sen believes that the trials have accomplished what they needed to accomplish and do not need to go on indefinitely. However, she claims that “others would like trials to extend to many lower-ranking officials” without telling us who those “others” are. This is a reference to the so-called cases 003 and 004, in which potential defendants are from a lower level than those in cases 001 and 002. None of the “others” who want to pursue these cases are Cambodian judicial officials of the ECCC: all of the personnel investigating these cases are UN-appointed officials. Despite this, the Cambodian government has continued providing security and other support for those investigations since they were initiated in 2008.
8. For a government that was supposedly opposed to the KR trials, it has done a great deal to preserve their records and results, including establishing memorials and creating and funding the Legal Documentation Centre related to the ECCC.
Predictably, Beech completely ignores the context when she trots out the 1998 words of Hun Sen that Nuon Chea and Khieu Samphan should be met with “bouquets of flowers, not with prisons and handcuffs”. Yes, when Hun Sen’s Win-Win Policy persuaded leaders of the remaining Khmer Rouge forces to stop fighting, that necessarily involved abstaining from immediately throwing those leaders into prison and welcoming them back into Cambodian society. But they were not promised an amnesty from future prosecution.
Here we are dealing with questions that often seem to have puzzled other media in addition to the New York Times. In a rather tired trope, Beech writes that the ECCC “entire effort has cost more than $300 million” but complains that “the court has convicted just three senior Khmer Rouge leaders”.
Justice, it seems, is a matter of cost effectiveness, like an advertising campaign for toothpaste: “we invested $x million in TV spots but only increased sales by 3% – fire the advertising department”; “we invested $300 million in trials and only got three people convicted – what extravagance!” (I don’t have the figures, but a significant part of that $300 million would have been spent on cases 003 and 004: do the “others” backing further trials hope thereby to improve their cost effectiveness [conviction/expenditure ratio]?)
Of course, trials of KR criminals necessarily involved the eventual imprisonment of some of the criminals. But putting people in jail was never the main point. Two related aims were always what the trials were primarily about. The first was to create an authoritative record in which Cambodians would share with each other what they had been through. The second was to have this record internationally recognised, particularly by the UN, whose support for and seating of the Khmer Rouge for a dozen years after their overthrow was an offence against millions of Cambodians.
In these objectives, particularly the first, the ECCC has been hugely successful. Beech seems unable to recognise this reality even when she refers to some of its elements. She acknowledges that the court has spent more than a decade “sift[ing] through hundreds of thousands of pages of documents, call[ing] hundreds of witnesses and hear[ing] in exhaustive detail how the Khmer Rouge ran its killing fields”. But later in the article, she follows up with the total non sequitur that, in regard to the KR period, “little national introspection has occurred”.
“Little national introspection”! It would be difficult to invent a more foolish and arrogant remark. What sort of introspection could surpass the trials and documentation provided by the ECCC?
Uncountable numbers of Cambodians have listened to the trials on radio or television; half a million made the journey from the provinces to observe the ECCC proceedings in Phnom Penh; 8,000 submitted complaints to the prosecution or applications to become part of the trials. All that is not good enough, apparently: none of those Cambodians have thought as deeply as have Beech and the NYT editors about what happened to them in the “state of Kampuchea”.