In July 2010, the Extraordinary Chambers in the Courts of Cambodia (ECCC) issued its first verdict, finding Kaing Guek Eav “Duch,” a Khmer Rouge official, guilty of crimes against humanity and war crimes for his operation of the Toul Sleng detention center in Phnom Penh. A second trial for four of the most senior surviving Khmer Rouge leaders is scheduled to begin in 2011, but Cambodian Prime Minister Hun Sen has publicly said that the trials will end there. Additionally, on October 26, 2010, the Government of Cambodia called for the removal of the UN Human Rights Commission’s presence from Cambodia. Foreign Minister Hor Nam Hong explained that the removal would be justified because the UNHRC office has acted as “a spokesperson for the opposition party,” and because the UN human rights envoy, Christophe Peschoux “[did] not work on human rights issues with the government.” Politicizing the UNHRC might be an attempt to delegitimize the office in the eyes of the public before the government officially ends trials for crimes committed under the Khmer Rouge.
The ECCC was created originally by an agreement with the UN and was formally established in 2006, with financial help from foreign governments and international bodies, such as the European Union. Generally, the ECCC’s jurisdiction extends over crimes committed by members of the senior leadership in the Khmer Rouge regime. Article 8 of the Law on the Establishment of ECCC for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (Khmer Rouge) provides that the ECCC has the power to try those “who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979,” at the height of the Khmer Rouge regime.
Up to three million people perished during the Khmer Rouge Regime. Thus, limiting the ECCC trials for war crimes and crimes against humanity to only five potentially means that the Cambodian government would bring no future case against other senior leaders also involved in planning the killings. Also problematic is that, apart from the ECCC, Cambodia effectively lacks another venue in which to try surviving Khmer Rouge officials, and it refuses to allow other nations or international venues try the officials. Therefore, the ECCC represents the best chance for justice; however, its politicization will lead to support for its discontinuance, which would effectively grant impunity to all other Khmer Rouge officers who were on the ground carrying out the brutal crimes against humanity dictated by the regime’s leadership. Even if Cambodia were to remove the trials to its Supreme or Military Court, the government openly acknowledges the weaknesses of its overall legal system. Its internal courts fall short of international standards, the primary reason the ECCC was created, such as being independent, fair, and of sufficient resources to try the Khmer Rouge cases. The argument could be made, however, that any trial is better than no trial; after all, the Cambodian populace has been waiting for justice for over thirty years.
The possible closure of the UNHRC office in Cambodia will make the prosecution of crimes committed during the Khmer Rouge regime, in addition to the two cases at the ECCC, unlikely. Human rights groups such as Amnesty International and Human Rights Watch argue that the possible closure of the UNHRC’s office constitutes a “direct assault on the UN’s human rights mandate, encompassed by the Universal Declaration of Human Rights and the international human rights conventions.” As a state party to the ICCPR and ICESCR, Cambodia is obligated to respect rights protected by those instruments, as well as the UN mandate in general. However, Hun Sen’s plan to “dig a hole and bury the past,” by capping the trials for Khmer Rouge officials, limits justice and secures his own immunity from additional trials. As some analysts have asserted, any extension of trials into the lower ranks of the Khmer Rouge could uncover evidence implicating Hun Sen and other former officers of the Khmer Rouge, many who are Hun Sen’s political allies. Such evidence could undermine Hun Sen’s political position and his majority party’s continued leadership.
By closing the ECCC, and effectively disengaging with the international community on human rights, Cambodia is taking two backward steps. In doing so, the government could seriously jeopardize all the progress achieved by the ECCC, which could have long-term detrimental effects on the ability of the Cambodian society to reconcile and improve human rights.