Five defendants are behind bars at the Extraordinary Chambers in the Courts of Cambodia, and prosecutors are now preparing to identify more suspects. The question of how many more has long been seen as a matter, at least in part, of politics; increasingly, it’s becoming a clear question of money as well.
On one hand, Cambodian government officials have long said that prosecutors must not cut too deeply, lest the nation’s hard-won peace be compromised.
On the other hand, some court watchers, both domestically and abroad, cast the scope of prosecution as a political test of the court. To prove its independence and legitimacy, their argument goes, the tribunal must bring more defendants into the dock.
Cutting through both those ideals are two very real considerations: time and money. And to the extent that the court’s budget and time frame have been negotiated by politicians, the reach of the court is indeed constrained by politics, both Cambodian and international.
“We’re glad to see there has been the arrest of five high-profile alleged perpetrators,” said Sara Colm, a senior researcher for Human Rights Watch. “In order for this trial to truly be credible, the prosecutions need to go farther. In order for that, there needs to be adequate support,” she added.
Those now in custody have long been the most prominent public symbols of the Khmer Rouge. A bulletin board at Tuol Sleng Genocide Museum, for example, has photographs of Kaing Guek Eav—alias Duch— Ieng Sary, Nuon Chea and Khieu Samphan. The question for the tribunal now is who else to add to this roll of notoriety.
Co-prosecutors Robert Petit and Chea Leang rest at the fulcrum of the debate. Neither will say how many they plan to recommend be charged nor when they will deliver those recommendations. But both say they have tried to cut as pure a path as possible through the thicket of opinion and the constraints of their mandate.
“You don’t prosecute for symbolism,” Petit said. You prosecute based on, he said, “the evidence and the law and the scope of our mandate and the resources you have.”
“Political pressure is not a pressure that is relevant to me,” he added.
Still, he concedes: “We can’t ignore differing opinions about what we’re doing. You have to decide when you’ve struck a balance between the limitations you have and your mandate. It’s not a mathematical formula. You can’t please everybody and probably you won’t make either side happy.”
“You don’t indict to please anyone, but you have to at least explain to victims why you did what you did,” Petit added.
He ticked off the constraints he has to deal with: “The fact that people are dying, limited resources, and the fact that everyone agreed to a limited time frame.”
“It’s obvious from the jurisdiction and working of this court that it has to be a limited number of people. These courts can’t cope with high numbers of defendants,” Petit said.
As for whether he and Chea Leang agree on whom to prosecute next, he said it is still too early to say. “We’re conducting preliminary investigations. When we have the results, that’s when a decision has to be made,” Petit said.
Chea Leang said she did not know how many more people would be charged, but emphasized that decisions to prosecute are made based on “whether or not it is in our jurisdiction of our law.”
Like other international tribunals, the ECCC was conceived as a forum to try only top leaders. Unlike other such courts, however, Cambodia does not plan to try lower-level offenders in domestic courts or vet their crimes through a truth-and-reconciliation-style commission.
In a 2003 report, a UN technical assessment team on the tribunal said it had been tentatively agreed that five to 10 people would be indicted, for one to three joint trials and one to three individual trials.
The ECCC’s 2004 budget estimate also assumed that five to 10 people would be prosecuted over three years. The court’s January 2008 budget estimate put the number at eight over five years.
Petit said eight is a back-of-the-envelope calculation, made without his input. It in no way circumscribes the scope of prosecution, he said; if the co-prosecutors and co-investigating judges want to indict more than eight people, they can, he said.
“I didn’t put that number in, but my understanding was that eight was the median number between five and 10,” he said, adding: “Eight is as good an estimate as any at this point.”
But now that judicial proceedings have whetted the public appetite for justice, the ECCC’s limited scope has left some foundering.
“Personally, I want at least 10,” said one international tribunal staffer on condition of anonymity. “In a perfect world, with unlimited time, unlimited budget, and no political constraints, things would be different. I’ve got 3,000 on my list.”
Monh Saphan, a Funcinpec lawmaker, said: “My personal vision, trying only five people is too little. It is not equal to the size of the killings and the sorrow of the Khmer people.”
“To try only five people because of national reconciliation is not appropriate. It is too little,” he added. “It should be expanded…at least 10 to 20 persons.”
Already the court has had trouble winning cooperation in the former Khmer Rouge stronghold of Pailin. In January, judges held a public forum to reassure people that the court would not be making scores of arrests.
Pailin Municipal Deputy Governor Mey Makk, who ran the Phnom Penh airport for the Khmer Rouge, said that while it is up to the tribunal to decide whom to prosecute, he doesn’t know of anyone else who is guilty. “Why more arrests? Those people were the senior leaders in the politburo committee,” he said, adding: “I don’t see any more people who committed inappropriate acts.”
For CPP lawmaker Cheam Yeap, five is enough. He said he believes the four men and one woman now in detention bear sole responsibility for the killings. “It is lucky, after 30 years, there are five people left who directly made the orders to kill,” he said, adding: “Others are just the subsidiary people.”
Documentation Center of Cambodia Director Youk Chhang counsels caution. “Focus on the five,” he said, adding: “From there see how many others you should look for.”
He urged the court to deal with the five defendants now before it as quickly as possible. “If one defendant dies, is justice going to be rendered? If one dies, you lose.”
“We have to be careful,” he added. “This is our last chance for justice.”