ECCC Defense: the Court Will Have to Answer the Question of Whether What Happened in Cambodia Was Genocide

Time for Legal Answers Arrives at 'Killing Fields' Trial
http://www.irrawaddy.org/article.php?art_id=7988By Marwaan Macan-Markar/IPS Writer July 25, 2007
July 25, 2007—For nearly 30 years, the Khmer Rouge regime that unleashed a reign of terror during it rule of Cambodia in the 1970s has been accused of committing genocide. But was this so, legally?
An answer to that troubling question is slated for scrutiny as the war-crimes tribunal gets under way. July 18 marked a milestone in this long-delayed trial, when prosecutors in the United Nations-sponsored special court submitted the names of five Khmer Rouge leaders to stand trial.
''Describing the acts committed in Cambodia as genocide has always been controversial. It is not easily accepted by the legal community,'' Rupert Skilbeck, the head of the Defense Support Section of the tribunal, said in a telephone interview from Phnom Penh. ''The court will have to consider this question.''
The accepted definition of genocide is an act of violence aimed to ''destroy an ethnic group because of their nationality, race, religion,'' added the lawyer from Britain, who has also served as the adviser for the defense during the special war-crimes tribunal for Sierra Leone. ''Killing a people for their political views as happened in Cambodia is different.''
There are other questions, too, that the Extraordinary Chambers in the Courts of Cambodia, or ECCC, as this tribunal is officially called, is expected to answer. Foremost among them is how many people the Khmer Rouge killed between April 17, 1975, and January 6, 1979, the period of this brutal regime's rule and the period that the ECCC is examining.
''The number of people who died in Rwanda was not challenged, but the number of deaths in Cambodia has not been confirmed; it could be challenged,'' Skilbeck said earlier this month when he met journalists in Bangkok. In the African nation, there were an estimated 800,000 people from the ethnic Tutsi community who were slaughtered by Hutu extremists during the Rwandan civil war. That act of genocide occurred in 1994.
The five names submitted last week to stand trial at the ECCC were major figures in the Maoist group.
According to reports in the Cambodian press, they include Nuon Chea, Pol Pot's deputy; Khieu Samphan, former head of state during the Khmer Rouge years; Ieng Sary, the former foreign minister; and Kang Kech Eav, also known as Duch, who was the head of the infamous Tuol Sleng prison in Phnom Penh.
The Khmer Rouge has been accused of killing close to 1.7 million Cambodians, which was a quarter of the Southeast Asian nation's population at the time. The victims were either executed or they died as a result of forced labor or starvation from famine as the Maoist group tried to turn the country into an agrarian utopia.
The tribunal's attempt to shed light o­n these mass deaths may also prove embarrassing to major powers that were involved during the years when Cambodia was dragged into the US war in Vietnam, which raged through the 1960s and early 1970s, and after. The Washington-approved bombing raids over Cambodia have been documented, and so has the role Beijing played to prop up the Khmer Rouge as it pursued its policy of slaughter.
''America's illegal bombing raids will come up in figuring out how many died in Cambodia,'' said Skilbeck. ''There will be lots of issues that will come up during the trial that will be embarrassing to many countries.''
The quest for justice to try those responsible for Cambodia's ''Killing Fields'' got under way 10 years ago, when talks began between the UN and Phnom Penh to set up the ECCC. But the journey since 1997 faced many hurdles, including those placed by the Cambodian government, which has been under the firm grip of Prime Minister Hun Sen for decades.
Hun Sen has not o­nly backtracked o­n financial commitments to the tribunal but has also heaped scorn o­n human rights groups who have challenged Phnom Penh's choice of judges for the war-crimes trial. The ECCC, unlike other tribunals, such as the o­ne that investigated crimes against humanity committed in former Yugoslavia, is not completely international in nature. It combines local and foreign jurists.
In fact, the ECCC is also expected to bring to the fore a question related to these very Cambodian lawyers and judges. It stems from concerns by human rights groups about the Cambodian jurists' grasp and application of international law, which will be the basis of the tribunal's proceedings.
After all, the country's legal community was equally brutalized by the Khmer Rouge as other professional groups. The educated men and women became key targets of the extreme Maoists, who deemed intellectuals as enemies of the state after declaring its first phase of power as the ''Year Zero.'' o­nly nine lawyers and judges survived the years of terror, according to some estimates.
For the Cambodians who survived the brutality of the late 1970s or who are among the millions who lost relatives to the Khmer Rouge, there are equally relevant questions they hope the ECCC will help answer.
''Many people want to know why the Khmer Rouge killed their own people and how they were killed,'' said Im Sophea, a ranking member of the Centre for Social Development, a Phnom Penh-based, non-governmental body. ''We expect the court to reveal answers for this. Public expectation is very high.''
The events over the past week have triggered new interest in the trial among people in the city and in rural areas, Im said in a telephone interview from the Cambodian capital. ''They feel the wait for answers is finally over,'' he said.
Of course, the trial will not hear from Pol Pot, the leader of the Khmer Rouge, who died in 1998. Nor will Ta Mok, widely known in Cambodia as "The Butcher" for the atrocities he committed during the regime's rule, take the stand; he died in June last year.
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