Tribunal Update

David SchefferDavid Scheffer

POV: First tell us about the Cambodia Tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia. How was this body created and what is it trying to achieve?

David Scheffer: The Extraordinary Chambers in the Courts of Cambodia, commonly referred to as the Cambodia Tribunal, was created in 2005 following eight years of long and difficult negotiations between the Cambodian Government and the United Nations. Its purpose is to investigate and prosecute the surviving senior Khmer Rouge leaders of the Pol Pot regime in the 1970s and those most responsible for the genocide, crimes against humanity, war crimes and various serious violations of the Cambodian Penal Code of 1956 and certain treaty obligations during Pol Pot's murderous rule of Cambodia (1975-79), when an estimated 1.7 million Cambodians perished.

The on-and-off cycles of negotiations to build a court began in 1997 and involved the participation of the United States, particularly myself when I was the U.S. ambassador-at-large for war crimes issues during the Clinton Administration, and U.N. Legal Counsel Hans Corell and Cambodia's Deputy Prime Minister Sok An as the lead negotiators.

The Cambodia Tribunal is a special domestic Cambodian court authorized by Cambodian law, but it is "internationalized" through a treaty between the Cambodian Government and the United Nations. That treaty, as well as the related Cambodian law, requires the participation of international judges, prosecutors, and administrators in the operation of the Cambodia Tribunal. It is financed voluntarily with significant international funding (Japan being the largest contributor) and Cambodian government funding. So far, Kaing Guek Eav (alias "Duch"), the former head of Tuol Sleng Prison in Phnom Penh, has been convicted of crimes against humanity and war crimes and is appealing that judgment.

I have a lengthy chapter about the making of the Cambodia Tribunal in my forthcoming book, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton University Press), which will be available in December.

POV: The Cambodia Tribunal Monitor is co-edited by you at Northwestern University School of Law in Illinois and by Youk Chhang from the Documentation Center of Cambodia, which is located in Cambodia. Can you tell us more about your organization and what you see as your role in the proceedings?

Scheffer: The Cambodia Tribunal Monitor (CTM) ( was established in 2007 for the purpose of monitoring and recording the work of the Extraordinary Chambers in the Courts of Cambodia.

Illinois State Senator Jeff Schoenberg proposed the idea after visiting Cambodia in 2006. The JB and MK Pritzker Family Foundation, located in Chicago, has been funding CTM since its inception. CTM provides historical background about the Pol Pot era and the long negotiations that led to the creation of the Cambodia Tribunal, as well as profiles of the defendants and all of the constitutional documents of the court. CTM also has a long record of expert blogs, including some authored by Youk Chhang or me, and others authored by Northwestern University School of Law students or recent graduates covering each day of the trials. The website posts video and audio tracks for each trial day and video interviews with Cambodian citizens and experts on the Cambodia Tribunal's work. Finally, there is a complete library of news articles and non-governmental organization reports through the years about the Cambodia Tribunal posted on the site.

As a negotiator in the creation of the Cambodia Tribunal, I see my role now as providing expertise about the working of the tribunal and, through my co-editorship of CTM, insuring the transparency of the tribunal's operations to the greatest extent possible.

POV: Can you tell us the status of Nuon Chea ("Comrade Number Two" to Pol Pot's "Comrade Number One") and others charged in the tribunal?

Scheffer So far, Kaing Guek Eav (alias "Duch"), the former head of Tuol Sleng Prison in Phnom Penh, has been convicted of crimes against humanity and war crimes and is appealing that judgment.

Nuon Chea is being prosecuted at the Cambodia Tribunal along with Khieu Samphan (head of state in the Pol Pot regime), Ieng Sary (Pol Pot's foreign minister), and Ieng Thirith (head of culture and social welfare and jointly responsible with Ieng Sary, her husband, for foreign affairs under Pol Pot) in "Trial 002" that commenced in late June 2011 in Phnom Penh. These defendants are the highest ranking surviving Khmer Rouge officials and thus the joint trial of them is reminiscent of the Nuremberg joint trial of Hitler's top leadership after World War II. They are charged with genocide, crimes against humanity and war crimes committed during the Pol Pot regime of 1975-79.

POV: Pol Pot did not come before a tribunal because he died in 1998, but Tuol Sleng prison camp head Kaing Guek Eav (known as "Duch") was convicted with crimes against humanity in 2010. He was sentenced to 35 years in prison, but that number was reduced and it's possible that he could go free in his lifetime. What precedents did his convictions set for the tribunal?

Scheffer: The Duch conviction on July 26, 2010, was a huge event in Cambodia because for the first time a leading figure in the Khmer Rouge assault on the Cambodian people was brought to justice before a credible and internationalized court of law. The precedent of his conviction is a major event in and of itself, i.e., the fact that someone of authority was brought to justice demonstrated that, while long delayed, it was possible to enforce the rule of law in Cambodia for the commission of such heinous atrocity crimes during the Pol Pot regime. In the process, the Cambodia Tribunal affirmed that the international law covering a wide range of crimes against humanity and war crimes was in force during the 1970s and thus should have been adhered to by the government then. In particular, the Cambodia Tribunal found that Duch had committed the crime of persecution against thousands of detainees in Tuol Sleng Prison and that within that particular crime existed a host of other crimes such as murder, torture and inhumane treatment. His 35-year sentence was reduced to 19 years for time served and other reasons, but the prosecutor has appealed the sentence and is seeking a much longer sentence for him from the Supreme Court Chamber.

There are other issues on appeal as well by both Duch and the prosecutor, so we will have to await the final judgment of the Supreme Court Chamber before we know the ultimate fate of Duch.

POV: More than 30 years have now passed since the end of the Khmer Rouge's rule in 1979. How have the senior regime members avoided conviction in the past?

Scheffer: First, they fled into the forests of Cambodia and slipped into Thailand's territory as well, so they were not easy to find. Second, the Cold War was still raging in the 1980s and the Communist Vietnamese invasion and occupation of Cambodia (which led to the downfall of the Pol Pot regime and its atrocity crimes) did not sit well with the West, which saw it as expanding communism in southeast Asia. Thus even at the United Nations during the decade of the 1980s, the Khmer Rouge remained part of a tripartite representative body for Cambodia which also included its opposing parties in Cambodian political life.

That stalemate, of actually embracing the Khmer Rouge and such leaders as Khieu Samphan, during the 1980s meant there was no appetite for justice internationally. Politics ruled the agenda. But the Paris Peace Agreement of 1991 re-ordered the political life of Cambodia, led to the deployment of U.N. peacekeepers there, and began the process of stabilizing the country politically. The Khmer Rouge leadership and its followers ultimately were isolated and marginalized. By 1997 the time had arrived, particularly in the wake of the creation of the International Criminal Tribunals for the former Yugoslavia (1993) and Rwanda (1994), to think seriously about a criminal tribunal that would focus on the massive crimes of the Pol Pot regime.

The co-prime ministers of Cambodia sent a letter to the U.N. secretary general in June 1997 requesting creation of a criminal tribunal for Cambodia, and that initiated the long process of negotiations that culminated many years later in the Cambodia Tribunal. It was not until the Cambodia Tribunal was legally established and able to issue arrest warrants that the top leaders and masterminds of the Pol Pot atrocities were at risk of trial and conviction.

POV: Do you think the length of time that has passed has had an influence on the ability of the tribunal to proceed? Pol Pot, who is perhaps the only name that resonates in the West, died more than 10 years ago, but also, the majority of today's Cambodians were born after 1979.

Scheffer: The reality, of course, is that major leaders of the Khmer Rouge era, including Pol Pot, Son Sen, Ke Pauk and Ta Mok, have died in the interim. It would have been much better to bring those leading figures in the slaughter to justice. I suspect that if Pol Pot in particular had survived, we would have been able to accelerate the negotiations mightily to create the Cambodia Tribunal in the late 1990s and charge ahead with many prosecutions. His presence in the dock would have been a great incentive for foreign governments and the United Nations, as well as the Cambodian government, to support rapid creation of the court and to fully support its operations. But that was not the way it turned out, so the negotiations dragged on and key potential defendants died while the process continued.

Nonetheless, Pol Pot could not have created the horrors that he did without the collaboration of top officials in his government and those, like Duch, willing to do his bidding day after day with the victims of his rule. So these trials are very important to establish accountability for that period in Cambodia's history.

POV: Can you tell us where we are today (early July 2011)? Who has been charged and what can we expect next from the tribunal?

Scheffer: "Trial 002" of the four major defendants (Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith) commenced on June 27, 2011, in the courtroom of the Cambodia Tribunal in Phnom Penh. These four defendants have been charged with genocide, crimes against humanity, war crimes and certain violations of the Cambodian Penal code of 1956. The first week of the trial was consumed by procedural issues, so we do not expect the trial on the merits to begin until August or September (2011).

The Supreme Court Chamber has heard oral arguments in the appeal of the Duch judgment of July 26, 2010, and so now we await the judgment of the Supreme Court Chamber on that case.

A major controversy has swamped the Cambodia Tribunal over whether a small number of additional individuals will be indicted in the near future. There are divisions within the tribunal on this matter and divided opinions by the Cambodian government, foreign governments, the United Nations and non-governmental organizations. I suspect that over the next year this issue will be resolved one way or another. If there are Trials 003 and perhaps even 004 in the future against future indicted individuals, then the Cambodia Tribunal will need sufficient resources, voluntarily provided by foreign governments, to sustain its staff and facilities for the long haul. That is a major challenge.

POV: Why are we hearing now that the tribunal may not continue beyond Trial 002?

Scheffer: The continuance of the Cambodia Tribunal's work is more certain for Trial 002 provided foreign governments continue to step forward and provide sufficient funding resources. I do not believe the international community will let the Cambodia Tribunal collapse during Trial 002, as it is simply too important for international justice, for the Cambodian people and for the credibility of governments that have invested so much so far in the process.

The real issue is whether funding will be forthcoming for a possible Trial 003 and 004. The entire funding challenge will require heavy diplomatic lifting in the months and years ahead. I sometimes wonder whether one or more private benefactors would see the value in the process and chip in to advance the cause of international and Cambodian justice.

POV: If the Courts are dissolved, what does that mean for future war crimes trial bodies such as the International Criminal Court, or confidence that the public has in them?

Scheffer: Again, I do not think we are facing the dissolution of the Cambodia Tribunal, at least not in the near term. One can always imagine worst case scenarios (the world is full of individuals who dream them up), but here I think ways will be found to keep the tribunal's work progressing through at least Trial 002. I doubt any outcome for the Cambodia Tribunal (continued operation or even sudden collapse) would have much impact on the International Criminal Court. That is a very different institution with 116 governments now party to it and paying dues for its operations. The U.N. Security Council has referred two major situations, Darfur and Libya, to the International Criminal Court and its overall docket is filling up with many situations of atrocity crimes to investigate and prosecute.

The fate of the Cambodia Tribunal certainly will influence how governments view the creation of internationalized criminal tribunals within domestic court systems, and there are be many lessons to learn from the Cambodian experience. But international justice is here to stay, one way or another, and the work of the Cambodia Tribunal already has made a significant, and I would argue largely beneficial, impact on that phenomenon.

David Scheffer is the Mayer Brown/Robert A. Helman professor of law and director of the Center for International Human Rights at Northwestern University School of Law in Chicago, Illinois. He is co-editor of the Cambodia Tribunal Monitor. His forthcoming book, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton University Press), will be published in December.