About the Hawke Centre

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1 Former Governor General of New Zealand and now Trial Judge, United Nations Assistance to the Khmer Rouge Trials, Courts of Cambodia Thursday 9 June 2011 Adelaide Town Hall About the Hawke Centre The Bob Hawke Prime Ministerial Centre at the University of South Australia is an internationally recognised public learning facility serving local and global audiences. With a focus on encouraging the community to think, connect and act, The Hawke Centre links a diverse audience to vital knowledge and to organisations active for the greater good. Named after Bob Hawke, a third generation South Australian, one of the 20 th century s most notable Prime Ministers ( ) and a great conciliator nationally and abroad, the Hawke Centre was established by Memorandum of Understanding in UniSA has developed the Centre believing that Bob Hawke s contribution should be properly recognised through a national facility, not as a memorial, but in a way that helps new generations and furthers his legacy of valuing a cohesive, sustainable and fair Australia. Broadly, the Hawke Centre aims to challenge Australians to consider ideas and develop solutions for Australia and the world, leading towards more sustainable societies, within a democratic framework. It is supported by a fine group of national patrons, and especially, international patron Nelson Mandela. The Annual Hawke Lecture is the premier national event on the public calendar of the University of South Australia, delivered under the auspices of the Bob Hawke Prime Ministerial Centre. There are relatively few moments when we have the time to consider the larger issues of life, including the future of our nation and our world and how we can shape it. The University of South Australia offers the Annual Hawke Lecture in this spirit, as an opportunity to listen to the views of someone whose experience of human affairs is notable, and whose concerns are truly worthy of consideration. The lecture is recorded for the Hawke Centre website. It is broadcast by Radio Adelaide and ABC Radio National at a later date. In 2011, the 14 th in this series of outstanding lectures will be made available on line and through national broadcast. While the views presented by speakers within the Hawke Centre public program are their own and are not necessarily those of either the University of South Australia or The Hawke Centre, they are presented in the interest of open debate and discussion in the community and reflect our themes of: strengthening our democracy valuing our cultural diversity and building our future. Elizabeth Ho, Director, The Bob Hawke Prime Ministerial Centre M: Elizabeth.ho@unisa.edu.au T: M: E: louise.carnell@unisa.edu.au Page 1

2 Former Governor General of New Zealand and now Trial Judge, United Nations Assistance to the Khmer Rouge Trials, Courts of Cambodia Thursday 9 June 2011, Adelaide Town Hall Thank you Vice Chancellor for your kind introduction. May I first pay my respects to the Kaurna people, the traditional owners of this land on which we meet. I also acknowledge His Excellency Governor Scarce, Patron in Chief of the Hawke Centre, Mr Hawke for whom this lecture is named, our chair for this evening Ms Nagel, and the Director and other staff of the Centre who have assisted me greatly in advance of this evening s lecture. It is indeed a privilege for me to deliver the 2011 Annual Hawke lecture arranged by the University of South Australia, host of the Bob Hawke Prime Ministerial Centre. Bob Hawke is a man who has made such a huge contribution both in Australia and internationally that even a New Zealander knows him and his work. His contribution goes beyond the political to his interest in and advocacy for issues affecting economics and human rights. In his own introduction to this Centre, he spoke of these key precepts: understanding, compassion and good policy. When he was President of the ACTU and as Prime Minister he was a strong negotiator, and used these skills to advance fair wages, and gender equity. He also took the first steps towards reconciliation with Australia s indigenous people, He is known too for his efforts to assist the emigration of Soviet Jewish families and for encouraging 20,000 Chinese students to seek refuge in Australia after the events of Tiananmen Square. He is rightly respected by Australians, and the naming of this lecture for him is one manifestation of that esteem. Introduction I am engaged as a trial judge in the Extraordinary Chambers in the Courts of Cambodia, a title that reflects well the often unusual nature of the proceedings and subject matter. Known as the ECCC, the Court has two parallel administrative processes, operates in the civil law system and has a trial bench comprising three Cambodian, one French, and one New Zealand judge. Based on the procedures used in domestic civil law courts, including those in Cambodia, it has introduced a comprehensive system of formal participation by victims at trial. The first trial concerning Kaing Guek Eav with the revolutionary name Duch, the head of the notorious Tuol Sleng or S 21 Security Centre in Phnom Penh has been completed and the next which charges four former political leaders in the government of Democratic Kampuchea is about to begin. So it is necessary for me to emphasise that any facts which I will mention are as yet unproved against anyone, except in part, against Duch. He has appealed the verdict given against him last year. T: M: E: louise.carnell@unisa.edu.au Page 2

3 Factual background The factual background is predictably tragic. Many of you will recall something of the period when Cambodia was ruled by the ruthless Khmer Rouge, a Marxist group led by a man called Pol Pot. It is estimated that at least 1.7 million people from a population of approximately 7 million died through execution, starvation, disease, or overwork in the 3 years, 8 months and 20 days of the regime. According to scholars, Khmer Rouge ideology required that the country become self sufficient. There was to be no conventional economy or formal education, no modern technology, and a reversal of the social order. Poor peasants were to become the elite and new people or city dwellers, the educated, intellectuals, those who had studied or worked abroad, anyone who might oppose this theory were to be eliminated as actual or potential enemies. Ironically, the country was renamed Democratic Kampuchea You may recall news reports that after the Khmer Rouge gained control of the capital Phnom Penh in April 1975, approximately 2 million inhabitants were evacuated at gunpoint, and those who resisted were killed. Families were separated, the elderly, sick and young perished immediately and many starved or succumbed to illness en route to the rural areas. Once there, the survivors were put to work tilling the fields, planting rice, and building canals and dams using hand tools or dragging equipment usually drawn by buffaloes. Not surprisingly, as the regime consolidated its power, there was a terrible death rate. Although more than 30 years have passed since these events, even today the human cost remains palpable. The profile of the victims, and some of their memories recounted at trial, provides a vivid account of their suffering. Profile of victims of the Khmer Rouge At Duch s trial victims came primarily from poverty stricken backgrounds, and their relatives and friends remain so today. But among them were members of the well educated and comparatively wealthy diaspora, as well as the relations of the few westerners caught up in the Democratic Kampuchean regime. The Trial Chamber found that more than 12,200 1 people died at S 21 from disease, torture and murder. Most were killed at a site about 15 kilometres outside Phnom Penh but some early victims as well as the westerners were killed, sometimes burned or buried around S 21 itself, a site that is in the middle of the bustling modern city of Phnom Penh. S 21 is now a museum displaying thousands of photos of the victims of all ages. One of the features of mass crimes is that they attract great interest in the international community. The Cambodian tragedy is no exception and the events and the people have been examined exhaustively by hosts of scholars, historians, authors, social scientists, psychiatric, psychological, legal and medical experts. When such studies are completed, they can be a valuable indication of the impact of atrocities on the victims, although I personally have doubts about the ethics of studying so comprehensively an already deeply traumatized community. One series of studies on the mental health of Khmer Rouge survivors and their descendants 2, conducted professionally several years before the trials started and with appropriate support for the interviewees, provided useful information on their attitude to the ECCC trials. The great majority had heard of the ECCC and appreciated its work. A bare majority thought that the trials 1 This is thought to be a conservative figure which was established from the written records that survived. 2 Mental Health and readiness to Reconcile in the context of the Khmer Rouge trials; study conducted by the Treatment Center for Victims of Torture, Berlin (bzfo) in cooperation with the Transcultural Psychosocial Organisation, Community Health Programme (TPO) 1 October 2008 May Nadine Stammel, Estelle Boekers, Sopheap Taing, and Christine Knaervelsrud. T: M: E: louise.carnell@unisa.edu.au Page 3

4 might promote reconciliation. Those who wanted to participate, felt the court might provide justice, allow them to release their anger, allow for revenge or provide a means of finding out the truth. Can a trial achieve these objectives? For reasons I will mention later, financial reparations will not be readily available to any survivor. Whether the trial otherwise delivers justice for individuals is not a question that I can answer. Justice is surely a subjective concept, with a different meaning for every participant. A court s task is to conduct a trial of an accused that is fair and expeditious, assess the material put before it and reach a determination of what evidence it considers the most reliable account of events. I also have personal doubts as to the benefit for suffering people to describe their experiences and loss in front of hundreds directly, and thousands via television. Bringing a poor rural worker to the city to have him or her describe the anguish and impact of what are often deeply personal experiences, is difficult at the best of times. I do not feel qualified to assess the value to them of such public release of their emotions. As to revenge; both international and domestic law excludes revenge as a sentencing criterion. Punishment, deterrence and/or rehabilitation are the only relevant factors. Modern sentencing practice accepts that revenge is uncivilized, and unproductive. The desire for revenge, however, is a normal human reaction. This is a further reason for the process of sentencing to be in the hands of a neutral and informed tribunal. The victims stories Any lawyer or judge will tell you that the dry words of an indictment charging an accused with serious crimes, come alive when the victim speaks in court. Judges, juries and the public can assess for themselves the reliability and credibility of the victim account, and sometimes even the accused displays a glimmer of awareness of the impact of his offending. This was an important feature of Duch s trial as he publicly expressed his contrition on a number of occasions. 3 More significantly for me, the victim testimony gave real vibrancy to the history of the regime and took us all back to the country as it was in the 1970 s under Pol Pot s leadership. Seeing and hearing the victims in person, also demonstrates clearly that the survivors of the regime continue to suffer the consequences of the Democratic Kampuchea regime. Apart from those living overseas, they are still unbelievably poor, suffer physical and mental illness and live lives severely constrained by the fact that they received no education during the regime, other than the propaganda lessons of the Khmer Rouge leaders. Few if anyone listening today will have suffered the terror, deprivation and indignities experienced by those imprisoned at S 21 and the suffering of those who learn the fate of relations. So we remember what many victims are seeking and so we remember the victims, I will share with you the words of some who testified at the trial of Duch: NETH Phally s brother Bunthy was detained and killed at S 21. The last time he saw his brother, a soldier injured on the battlefield, was when he visited him secretly in hospital. After the fall of the regime, he looked for his brother for months. In 2004, when he saw his biography in the S 21 archives, he finally lost hope of ever finding him alive. He was deeply shocked that his brother, who had been totally loyal to the Party and had devoted his life to the revolution, was detained, tortured and killed at S 21. With his remaining arm he held up 3 His statements however, were generally considered by the public to be self-serving and in the final days of the trial, he indicated that, although his approach throughout the trial had been to accept responsibility regardless of the consequences to him personally, he now sought acquittal. T: M: E: louise.carnell@unisa.edu.au Page 4

5 his brother s picture during the hearing, and said: I would like to show a photo of my brother. Here it is like he is now sitting close or next to me. I hope he is now with me and knowing that the accused is being trialed, and I believe that my brother will be at peace, having learned that justice is achieved through this Court. And may the dead soul of my brother who perished at S 21 realize that and know that now justice is done for you. At that time you were taken to S 21 you were blindfolded and when you were taken out to be killed you remained blindfolded. Now the Court revealed the faces of those people who committed the atrocity. 1 can never find the dead body of you and this is only the photo, the photo which really represents the ashes and the body of you. CHUM Mey survived S 21. He was beaten and tortured for 12 days and nights before being assigned to repair mechanical equipment. When S 21 was evacuated he was marched off, and by some miracle came across his wife who had been imprisoned elsewhere. She had their baby with her, born while in prison. He was able to carry it for a short period but soon after, while trying to flee the Khmer Rouge, they were shot at. His wife and baby died. He said this: Whenever the word Tuol Sleng (S 21) prison comes into my mind I could not hold my tears. It drops automatically. Every single day when I hear about Tuol Sleng or S 21 about torture, then my tears just keep flowing... I was told because of the anger of the trauma I suffered during the Khmer Rouge regime that I need to keep my mind free from those feelings. However hard I try, my tears still drop. BOU Meng last saw his wife as she was being photographed at S 21. He was shackled before being released to paint likenesses of POL Pot. He still bears the scars of his months of torture. He said: 1 thought that if I could live to give my story to the Chamber... that the ECCC would find justice for me. And I feel so happy even if 100 percent of justice cannot be provided by the Chamber, 50 or 60 percent of justice to me is fine because I determined from the prison where I was detained that I had not committed any mistake or offence and I prayed just to be survived. VANN Nath also assigned to paint or sculpt POL Pot was captured and tortured before being taken to S 21 to be held in a large cell shackled with others to a common iron bar. To this day he does not know why. He has painted many scenes from S 21 observed by him or described to him by other detainees. He said: I determined if one day I survived... I would compile the events to reflect on what happened so that the younger generation... would know of our suffering... those who came along with me to S 21, the majority of them did not know anything or any offence that would lead to their arrest.... So I had to reveal, I had to write, I had to compile, and it can be served as a mirror to reflect to the younger generation of the lives of those who were accused with no reason, who committed no wrong, and that they were punished that way. NORNG Chanphal was only eight when he was taken with his mother and small 4 year old brother to S 21. He watched, terrified as his mother was pushed, threatened and photographed. After a night in a cell with some other women, five children, of whom he was the eldest were taken to a place behind the kitchens. As she farewelled him, his mother told him to care for the children. One breast feeding baby died in spite of him trying T: M: E: louise.carnell@unisa.edu.au Page 5

6 to feed it rice gruel. When the Vietnamese came he hid himself and the surviving children in a pile of clothes, refusing to join the fleeing staff in case his mother couldn t find him. We now know that he was taken to S 21 just days before it was evacuated, in the chaos escaping inevitable killing. His mother died in those few days. While trying to find his mother he saw what he thought was a nightmare dead, bleeding bodies on iron beds around the prison complex. I will move now from the description of this particular tragedy to the overarching system of international justice developed over many decades in response to the need to provide greater accountability for those who commit mass crimes such as these. Instruments of International Justice Since the Nuremberg Trials which, with the distance of over 60 years have attracted a certain prominence, there have been many international instruments, such as the International Covenant of Civil and Political Rights, developed by the United Nations to articulate universally accepted standards of justice to which States must adhere. These form the foundations for the law and practice which determine the jurisdiction of a number of international tribunals established to try those accused of mass crimes 4. There is now a solid body of international criminal law including jurisprudence on Genocide and Crimes against Humanity which are the daily diet of these tribunals. The culmination of the drive to ensure that crimes which shock the conscience of the world 5 are tried in a reputable international court, came with the establishment in July of the International Criminal Court. It too has attracted much interest with (mainly lay) people assuming that it can and will arrest and try the modern mass murderer. This lecture is too brief to explain why that is unlikely to happen except in rare circumstances. Suffice it to say that not every member state of the United Nations supports the powers vested in the ICC, not all member states have ratified the Rome Statute, and in cases involving these states the ICC can proceed only following referral to the United Nations Security Council by a State party, of a situation in which crimes within the court s jurisdiction appear to have been committed. 7 The accused must then be arrested and brought to the Hague where the ICC sits. Justice is never an even handed, pure concept, unaffected by local or international politics or the practicalities of application. The Extraordinary Chambers were established 8 as a hybrid court based in local law and procedure, applying international standards where required, and with judges, lawyers and technical and financial assistance provided by donor countries of the United Nations. Although it has a majority of Cambodian judges in its Chambers, a decision can become binding only if a super majority of the judges agree. Thus, during the Duch trial on a few occasions, four of the five judges, in combinations of three Cambodian and one or other of the international judges determined varying legal issues. On one occasion the judges split three to two thereby not achieving a super majority. The practical consequence was that the legal issue of whether the time limits for prosecution under Cambodian law of crimes committed during the Democratic Kampuchea regime had 4 The International Criminal Tribunal for the former Yugoslavia (ICTY) 1993, followed by the International Criminal Tribunal for Rwanda (ICTR) 1994, the Special Court for Sierra Leone (SCL) 2000, and the Special Tribunal for Lebanon Also the Serious Crimes Unit (SCU) established in Timor Leste 2000 under UNTAET 5 See for example Cherif Bassiouni International Criminal Law: International Enforcement, p16. 6 Rome Statute of the International Criminal Court, 17 July 1998, (entered into force on I July 2002), 2187 UNTS Article 14 Referral of a situation by a State party; see also article 16 Deferral of investigation or prosecution 8 The ICC is limited to trying those offences which occurred after Consequently it was necessary to establish another tribunal to consider the events of in Cambodia. T: M: E: louise.carnell@unisa.edu.au Page 6

7 expired or not, was not pursued at trial. In the next trial, the Trial Chamber is to try accused who are aged from 79 to 85 for offences that occurred up to 35 years ago. Given the allegations that the many worksites, and security prisons were located, and purges occurred, across the whole country, there are thousands if not millions of victims direct and indirect. The legal and factual issues are very complex, causing some observers to remark that this will be the most difficult international criminal trial ever conducted. There are accusations of vast, forced population movements, enslavement, torture, deliberate widespread killing, forced marriages, spying on the citizenry, and a climate of terror and violence for the duration of the regime. The Court s existence is tenuous with uncertain funding, unreliable political support and occasional suggestions of political interference in its work. It was established after literally years of intense, frustrating negotiations between the Royal Government of Cambodia and the United Nations. It survives from week to week under the relentless scrutiny of international NGOs who publish widely their views and advice. The mission is almost impossible: to try four frail, elderly accused all of whom vehemently deny culpability, in a very poor, developing country, with up to 4000 victims wishing to participate at trial, and with judges and legal officers who read, write and conduct the trial in at least three different languages. So is it worth it? Let me measure my experience thus far against the gold standard for international criminal justice; Ubiquitous and multifaceted there seems to be no limit to what [international criminal tribunals] are expected to achieve in addition to the usual goals of criminal justice, they are tasked with achieving peace, telling a much contested truth, creating historical records for societies and educating the world against the horrors of mass violence 9 To which I would add: accommodating the needs of victims. The usual goals of criminal justice These can be summarized as follows: to arrest suspects, ensure they have counsel to advise and represent them, ensure a fair and expeditious trial, and on conviction, impose a balanced sentence that takes into account punishment, reparation for the victim, deterrence and rehabilitation. It is also to ensure that the trial is conducted in a calm and objective environment and that the judge is independent, and unbiased. This is part of a process designed to provide a civilised response to criminal offending and to prevent vigilante action. In principle, all those suspected of criminal conduct should be tried, not simply those who a government or international forum allows to be put on trial. Achieving peace As a judge in an international tribunal, my reaction is that it is difficult enough to fulfill the goals of a fair trial without having the burden of achieving peace, which often is best placed within the political and diplomatic spheres. Peace might happen, but it is a by product of a fair and transparent trial. There are certainly occasions where the arrest and trial of a leader while the conflict is still raging enables peace talks to begin, but the 9 Between the Scylla and Charybdis of Prosecution and Reconciliation: the Khmer Rouge Trials and the promise of lntemational Criminal Justice; Neha Jain, 20 Duke J.Comp & Int l L. 247; see also The Henry Morris lecture: What is the Point of Intemational Criminal Justice? Mirjan Darnaska 83 Chi.-Kent L. Rev.329, p2 T: M: E: louise.carnell@unisa.edu.au Page 7

8 practical difficulties of achieving this are many. First, (usually) he must be detained locally by domestic or international forces. Or he might be arrested on an international warrant, an unlikely event given that few modern tyrants would go on holiday to the Costa Brava leaving themselves open to such action. Equally, negotiations to end a serious conflict will sometimes result in promises that no legal consequences will follow. It is for the affected community to decide retrospectively whether allowing criminal acts to go untried has in fact delivered a better outcome. In the Cambodian situation, given that active fighting stopped about fifteen years ago, peace usually means peace for the victims. The question then is whether as part of telling a much contested truth the ECCC is delivering peace to those who suffered because of the Khmer Rouge regime. In this context, peace is often coupled with "reconciliation". There is always the hope that a fair trial which allows evidence to be heard and assessed will bring a certain peace to those who have long wondered why they were victimized and by whom. Humans have a great thirst for knowledge and with that knowledge, understanding, even reconciliation and forgiveness, may occur. Scholars who spoke at Duch s trial commented on the prospect of national reconciliation. Richard Goldstone said: What is important is a public acknowledgement from an official source especially a court that this is what happened to [the victims]. an admission of guilt and an acceptance of guilt is crucial to put a stop to fabricated denials that usually accompany all serious human rights violations 10 Another scholar, Raoul Jennar said: It is important to ensure that the Cambodian people knew that justice had been done reconciliation is a process that must not leave justice by the wayside. Only when the Cambodian people had settled their past could they turn confidently towards their future. 11 A much contested truth Can a criminal trial provide a truthful account of what occurred during a regime such as Democratic Kampuchea? Numerous studies have demonstrated that the human memory is fallible. Memory can also be affected by trauma and of course, by the time lapse since the events occurred. Thirty five years after the events that unfolded under the Khmer Rouge, witness and victim accounts will usually be a truthful, albeit subjective account of what they recall, but a wholly accurate account is never possible. Judges look for consistency in witness statements and between witnesses, and against other, perhaps contemporary records. In this way the judges conducting the trial against Duch were able to piece together from contemporary and current accounts, a story that was credible of arbitrary arrest, internment without trial, written confessions often extracted under torture and therefore unreliable as to their truth, starvation and shackling in unhygienic and cruel physical conditions, humiliation, terror and finally a brutal death in a field at night, their cries muffled so that others awaiting their fate would not hear and panic. Creating an historical record All contemporary international tribunals recognize the importance of protecting existing records of the regime under examination, and creating and preserving trial records of testimony that ensues during trial. This forms part of the record for scholars but more importantly for those who have suffered and those who will in later generations wonder about the history of their country. Archiving of material is usually taken very seriously by 10 Richard Goldstone Case 001 Kaing Guek Eav, alias Duch, transcript 14/9/09 pp 11 and 12 (English). 11 Raoul Jennar Case 001 Kaing Guek Eav, alias Duch, transcript ibid p90 (English) T: M: E: louise.carnell@unisa.edu.au Page 8

9 international criminal trial administrators. Although, providing the will is there and the finance available, an archive of existing material could equally well be achieved without a criminal trial. Educating the public Every international criminal trial since Nuremberg has shared the broad goal of educating the world against the horrors of mass violence. It is questionable whether the objective summarized in the phrase never again will ever be achieved, and I do not expect the international community to be any more persuaded to foreswear mass violence after hearing the account of the Khmer Rouge trials. What may have been advanced however, is the knowledge of the Cambodian people. Until recently, the policy, politics and events that occurred during the Democratic Kampuchea regime had not been taught as a part of the Cambodian school curriculum. 12 It is therefore of note that more than 30,000 members of the public from villages, schools and universities, non governmental organizations and representatives of interested governments attended part of Duch s trial. Many more followed the trial on television or radio, indicating a high degree of local interest. This, in my view is the result of two factors: the almost complete absence of public knowledge of Democratic Kampuchea policy and who drove it. Simple questions such as why? by whom? and what happened to my relations? have never been answered. During the regime secrecy was strictly, even brutally enforced as the leaders ensured that all enemies real or perceived were swept away, a euphemism for arbitrary arrest, detention without trial, torture and killing. In order to ensure total secrecy and induce maximum compliance with the regime, if for example, a factory manager was arrested on suspicion of spying, he and his family would be killed and all his workers either sent for re education or killed themselves. Consequently the vast proportion of the population knew little about why they were expected to work and live in prison like conditions and why so many disappeared. The trial gave an opportunity to hear and see for themselves something of what had occurred. The second factor relates to the siting of the court in the countryside outside Phnom Penh. For all the problems of alleged undue political interest, and difficulty of local access, 13 there can be no other court that has experienced so much public participation. Although seasoned judges at the Duch trial expected the initial, intense interest to last only a few days, in fact most days the more than five hundred seats were full and on occasion those left outside watched on live video streaming from an open air café. Village chiefs and NGOs arranged transport to the court leaving at dawn from their rural areas, and villagers poured into the courtroom, watching from behind sound proof glass and by all accounts, commenting freely on their views of the witnesses and the accused. In the towns and villages across Cambodia, people in their thousands also watched on television or on outdoor screens. The needs of victims I have spoken about the profile and experiences of victims of the Khmer Rouge, so it may be of interest to understand a little of the procedures that apply to victims during the trials currently underway in Cambodia. Then I will make some concluding remarks. As part of the civil law process that applies at the Khmer Rouge trials, victims have the right to be joined as parties and to participate at trial. Their role is to support the prosecution and to satisfy the court that as a 12 A History of Democratic Kampuchea ( ) and Teachers Guidebook Publication of the Documentation Center of Cambodia and the ministry of Education, Youth and Sport. ISBN The court is situated about one hour s drive from Phnom Penh and there is no public transport available, although the Court does provide buses for the public. T: M: E: louise.carnell@unisa.edu.au Page 9

10 direct consequence of at least one of the crimes alleged against the accused, the victim has suffered physical, material or psychological injury upon which a claim for collective and moral reparation might be based 14. In this capacity they are entitled to legal representation and may describe their injuries to the court. In Duch s case, there were very few survivors of the Security Centre administered by him and, during his trial, a handful, some of whom I quoted earlier, spoke of their terrible experiences. In addition, a number of those who had been indirectly affected, usually because of the death of a close relative, also told the court of their suffering. The process for participation and the seeking of reparation was, to my mind, most unsatisfactory. First the 90 Civil Parties represented only a fraction of those victimized by the more than 12,000 tortured and killed at S21. Other survivors are too traumatized, poor or otherwise unable to participate in spite of the best efforts of the local and international communities to help and support them. Moreover, the word victim has always been associated with those who were not directly involved with a regime. During the Khmer Rouge era, young peasants aged about fifteen were deliberately selected 15 to work for the regime. Many were illiterate and most, if not all, became so inured to the climate of terror and violence that their lives and those of their families changed for all time. Some were themselves put to death for disciplinary infractions such as falling asleep on guard. In these circumstances, the words victim and perpetrator become blurred. The issue of reparation was also problematic. In most domestic criminal trials, where reparation is ordered, it takes some monetary form, and is ordered against the convicted person. For the Trial Chamber, this was not possible as Duch was penniless, and the Royal Government of Cambodia has no fund for the provision of financial compensation. So, after working through a complex, time consuming and traumatic process, often sitting for hour after hour in court listening to what might have happened to their parents, husband or brother or sister, the victims found that the Trial Chamber had no jurisdiction to order anything except formal recognition in the judgment. The compilation of all Duch s statements of apology and acknowledgement of responsibility was also ordered to be published when the judgment becomes final. 16 Given the very large number of victims seeking admission as Civil Parties 17 at the second trial, and acknowledging that improvements are required to ensure that victims receive better recognition of their suffering, a new regime has been incorporated into the ECCC Rules. 18 Individual victims will now form part of a consolidated group at trial stage. They will be represented in court by lead co lawyers while the remaining Civil Party lawyers 19 will continue to advise and assist their individual clients, but will have no automatic right of audience before the ECCC. An important reason for amending the system was also to ensure that the trial is both fair and expeditious. Between two and four thousand Civil Parties, represented by more than thirty lawyers, may give the appearance of unfairness when opposing a small number of accused, and is in any event, clearly unmanageable. Modifications to enable proposals for mostly symbolic reparations in the form of stupas 20 and other memorials have also been made. If ordered, these will very likely be funded by foreign donors. 14 Internal Rules of the ECCC, Rule 23 bis 15 Duch spoke of selecting poorly educated, young peasants on whom he could write as if on a blank page. 16 In the civil law system the judgment becomes final when appeals have been exhausted, an event that will occur within the next few months. 17 Between 2000 and 4000 depending on whether all are admitted by the Pre-Trial Chamber on appeal following the rejection of about 2000 Civil Parties by the Co-Investigating judges. 18 Rules 12 ter, 23, 23ter and quinquies, all amended in February So far 34 lawyers have indicated that they represent individual Civil Parties or groups of Civil Parties. 20 A memorial usually erected in the grounds of a Wat or Pagoda T: M: E: louise.carnell@unisa.edu.au Page 10

11 Conclusion Although each country that has suffered egregious crimes against its people has a different story to tell, the cumulative facts of the cruelty and apparent indifference of those who order, assist or allow such tragedies to play out render us speechless. In the last few decades the world has been shocked and shamed by similar events in China, the former Soviet Union, the countries of the former Yugoslavia, Rwanda and other African states. As I write this, conflicts rage in many other parts of the world as citizens call for changes in their governments. Until these battles end, we do not know, but history allows us to assume that many criminal acts will have been perpetrated on innocent people by those who wish to gain or retain power at all costs. What is of note is the widely varying contemporary approach taken to the delivery of justice. Events in Egypt, Libya, Pakistan and Serbia have furnished us with a range of examples, from the killing of a suspect to the peaceful arrest and transfer to a national court for extradition hearings of another. In Egypt it seems likely that domestic courts will try the former head of state, while in Libya an end to a bloody conflict might occur after successful negotiations for a pardon and amnesty are concluded. Each of these examples give us an opportunity to reflect on what justice means and how it is best delivered by instant retribution, by negotiating at least a cease fire if not final peace by coming to an arrangement with the main perpetrators, or by means of the more banal path of arrest, trial either in a local court or an international one, at which the allegations may be tested and the victims have an opportunity to speak. What is even more remarkable is that trials whether domestic or international have become more regular, and as a consequence impunity has been diluted. As Serbian President Boris Tadic said when Ratko Mladic was arrested recently: All war criminals must face justice Compared with a few decades ago, the strong man now runs the risk of the humiliation of a trial which will reveal his all too obvious flaws and his egotism or greed. International criminal justice is now a reality of modern legal systems. Its usual aims are to try those most responsible for notorious mass crimes, but it is often hobbled by political negotiations domestically and internationally, inadequate funding, and the absence of other resources needed to complete trials within a reasonable period following the criminal offending. It cannot hope to offer an end to impunity for the commission of mass crimes, but what it can do is demonstrate to those who suffered that prosecution may occur, that some form of justice may result and that the world has listened, however imperfectly, to the voices of the victims. In Cambodia, the trials being conducted before the ECCC will be of only a fraction of the senior Democratic Kampuchean leaders or those most responsible for the carnage that occurred during the regime. Others will never be brought to trial. Death has intervened or financial or political considerations make it difficult for an international tribunal based in the Cambodian courts to arrest and try other suspects. The system is indeed flawed, but it is better than the historic indifference to crimes which has for generations, as in Cambodia, affected the health and education of the ordinary people, cast them into poverty, and left them in a state of endless grief. T: M: E: louise.carnell@unisa.edu.au Page 11