A verdict in the genocide trial of Pol Pot's surviving henchmen is due next week and the findings by the Extraordinary Chambers in the Courts of Cambodia (ECCC) will have far-reaching legal ramifications for future tribunals. Regardless of the verdict, Nuon Chea, known as Brother Number Two, and former head of state Khieu Samphan will remain behind bars because of earlier convictions
for crimes against humanity, as will Kaing Guek Eav, known as Duch, former commandant of the S-21 prison. But genocide convictions are rare in international courts. They have remained the holy grail for prosecutors since 2006, when the first judges were sworn in at the ECCC, amid hopes that some kind of justice would be found for the two million victims of the Khmer Rouge. Nuon Chea and Khieu Samphan were additionally charged with genocide alongside former foreign minister Ieng Sary and his wife Ieng Thirith, once minister for social affairs. These four were among the most important because they served on Khmer Rouge committees that wrote and deployed government policies that stripped Cambodia of its cultural heritage and obliterated a third of its population between 1975 and 1979.
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There were others, such as regime leader Pol Pot, but they were killed or died of natural causes, as the Iengs did, before the courts could render a final genocide verdict. The strategy
Proving genocide, also known as the "crime of all crimes," and state sanctioning from the highest levels was always considered far more difficult than obtaining convictions for crimes against humanity, which deal with a broader range of atrocities
committed in the field. But within the prosecutors' legal armaments was Duch, who pleaded guilty and cooperated with the courts. His case, 001, was launched in 2009 and the evidence collected from under his watch was staggering. At S-21, up to 24,000 people were tortured and sent to their deaths. A special unit of female guards looked after women prisoners. Babies were taken from their mothers; waterboarding and electric shocks were common. Prisoners were kept alive long enough to have their blood drawn for transfusions in military hospitals. Some were chained and decapitated. About 200 such camps were constructed across Cambodia once the Khmer Rouge seized power. At nearby Choeung Ek, prisoners dug their own graves, were bludgeoned with an ox-cart axle, had their throats slit and their bodies dumped. As the evidence emerged, investigators focused on the paper trail that tied the Khmer Rouge hierarchy to a dreadful array of crimes. Special attention was paid to the discrimination against ethnic groups like the Muslim Chams
, Vietnamese and intellectuals — often defined as those who wore glasses. The second trial, Case 002/01 ruled Nuon Chea and Khieu Samphan were overwhelmingly responsible for the atrocities and "had a complete lack of consideration for the ultimate fate of the Cambodian population." That laid the legal spadework for a genocide trial, Case 002/02, covering the deaths of at least 100,000 Muslim Chams and 20,000 Vietnamese and how they, and others, suffered on the basis of their ethnicity and cultural identity. Muslim Chams were forced to eat pork and banned from using their traditional language while Qurans were collected and burned as they were rounded up by a Khmer Rouge unit known as the Long Sword Militia. Cham and Khmer women were often stripped naked and raped before they were killed, while cadres held competitions to see how many prisoners could be murdered in an hour at Wat Au Trakuon, where perhaps 20,000 died. They were hopeful a higher kill rate would lead to promotion. "No more prayers. No more religion," It Sen, the first Cham witness, told the court. "We were not allowed to speak Cham anymore … If they heard us speaking Cham, we would be taken away and killed." Thousands were drowned in the Mekong River after a Cham uprising at Koh Phal. Samrit Muy, a soldier with the Long Sword, corroborated the testimony, adding grisly details of Cham men, women and children, including pregnant women and the elderly, being marched off to their deaths in large groups. The legacy
The term "genocide" was coined by Raphael Lemkin, a Polish Jew who combined the Greek word "genos," meaning race or tribe, with the Latin word "cide," or to kill, in 1944 after escaping Axis rule in occupied Europe. It also incorporates the concept of conspiracy, closing legal loopholes that might enable those in charge to escape, and found its standing at the Nuremberg trials after World War II following the discovery of death camps constructed by Adolph Hitler's Nazis. Genocide, some say, is different from other charges and difficult to prove, in part due to arguments over legal definitions and the interpretation of United Nations conventions. Some within the Jewish community argued genocide should only apply to persecutions by Nazi Germany. Pursuing a genocide trial in Cambodia was further complicated by another two decades of conflict that followed the 1979 Vietnamese invasion that ousted the Khmer Rouge. Civil war continued until 1998 and another decade of peacetime bickering with the U.N. ensued before the ECCC could be established. Amid all this, the Khmer Rouge became a Cold War relic, escaping justice and denying their compatriots a chance to find closure on one of the darkest chapters of the 20th century. That changed amid intense international lobbying and, despite its many critics, the ECCC had some success. The tribunal has cost about US$320 million, about US$150 for each Cambodian who died under the Khmer Rouge, a tiny amount given the scale of atrocities. It is also the first hybrid war crimes court, combining local and U.N.-appointed judges. And it was held in Cambodia as opposed to The Hague. More than 500,000 people travelled to the courthouse and witnessed proceedings first hand. Khmer Rouge atrocities are now in school curriculums and discussed openly. For many people, international legal recognition of what happened — which came with the ECCC — is important. But finding real justice for the victims of Pol Pot was perhaps never a realistic prospect. The crimes were simply too great and too long ago. But a guilty verdict in the genocide trial will set legal precedents, establish a logistical template for future courts and provide prosecuting strategies for genocide tribunals in the making. That might include a push from within the U.N. to hold the generals in Myanmar accountable for the recent slaughter of Rohingya Muslims and their forced exodus into Bangladesh. Luke Hunt is the opinion editor of ucanews.com.