Be careful where you walk. There are still bodies down there.

Here, on the outskirts of Cambodia’s capital Phnom Penh, broiling grey clouds above herald the coming of the afternoon rains. Below, pockmarked grey fields are scattered around haphazardly, climaxing in an overly exuberant fifteen-storey white marble and gold-tiled stupa. Lying a mere stone’s throw away from the mighty Mekong, there could be rice paddies: but, here, nothing grows. It is a place haunted by the accidents of history, the dangerous whims of ideology, and the brutality of blind belief. It is the memorial to the genocide that nobody knows. It is Choeung Ek: the killing fields.

The concept of justice is different in Cambodia.

In another field, forty minutes to the west, lies the Extraordinary Chambers in the Courts of Cambodia (ECCC). Housed in a former Royal Cambodian Army command office, the ponderous silence of midmorning is only interrupted by the flitter of the occasional power-suited, young international lawyer, case notes in one hand, security lanyard in the other. Today is a non-sitting day. Actually, the court hasn’t been sitting for months. The UN-blue plastic chairs in the outdoor viewing area lie unattended, and across the undulating green, in the shaded corner of the barbed wire fencing encircling the compound, stands the Lord of the Iron Staff (Lokta Dambang Dek), the ancient Khmer symbol of justice.

Red is for children. Blue is for teenagers. Green is for adults over 30. Yellow is for the elderly. Every sticker on every skull tells a story.

Choeung Ek was just one of hundreds of killing fields and state-run torture centres in a patchwork of brutality that in less than four years killed more than 1.7 million people. Emerging from French Indochina in 1953, in the past sixty years, Cambodians have suffered through monarchy, military coup, American bombing, genocide, civil war, and now a tenuous peace settlement. By far the most horrific of these episodes, however, was the period of Democratic Kampuchea, from 1975 to 1979. Influenced by Marxist and Maoist ideology, and radicalised by the excesses and corruption of the Lon Nol military regime and the Vietnam War, the Khmer Rouge (or Angka) finally “liberated” Phnom Penh on 17 April 1975. In only three days, the entire population of more than 2 million was forcibly evacuated: hospitals were emptied, the sick and infirm left to die on the roadside, families separated, and foreigners rounded up and housed in the now defunct French Embassy. But this was just stage one. Next came the systematic extermination of all vestiges of intelligentsia, capitalism, tradition and culture. Cambodia was returned to the year zero of collectivist forced labour, where loyalty could only be invested in the Party. Choeung Ek would be the site of the next stage: ideological ‘cleansing’.

It is expected that only a small number of people will fall within the mandate of the ECCC, and low-level and middle-ranking Khmer Rouge members who are not most responsible for serious crimes will not be prosecuted.

Established in 2003, after 6 years of protracted negotiations between the United Nations and the Cambodian government, the ECCC serves as the only judicial mechanism to address the three years, eight months and twenty days of the Khmer Rouge regime. But it has responded to this need for justice by restricting its mandate to the “senior leaders of Democratic Kampuchea” and those alleged to be “most responsible” for crimes under the regime. Although restrictive, given the passage of time, there remain serious hurdles to charging all Khmer Rouge members responsible for crimes. Indeed, for a full retributive justice process, half the population would have to be indicted.

To date, however, in the past eight years of operation and at a total cost of US$230.7 million, only five senior members of the DK regime have been charged, and only three convicted: Kaing Guek Eav (aka ‘Duch’, the commander of S-21 Prison), Khieu Samphan and Nuon Chea. On 7 August 2014, Nuon Chea (“Brother No. 2” and chief ideologue) and Khieu Samphan (President of Democratic Kampuchea between 1976 and 1979) were finally convicted of crimes against humanity and sentenced to life imprisonment. This marked the first time members of the senior administrative leadership of Democratic Kampuchea have been convicted: Duch was a mere prison commander. Nevertheless, two of the original five accused are unable to stand trial, and the future of the ECCC is limited: former foreign minister Ieng Sary died in 2013, and his wife Ieng Thirith has been deemed unfit by reason of dementia. Although the scope of prosecutions has been restricted to date, survivors are arguably empowered by the ability to self-represent as civil parties and witnesses to the proceedings, encouraging a deeper connection to the official justice process. While this elite-focused justice model has been satisfactory for many (more than 240,000 people have visited the court), it has been subject to political interference, arguably playing a crucial role in legitimising the current Hun Sen regime, itself a breakaway faction of the Khmer Rouge.

You see the dark patches on this tree? You see where there’s no bark? This is where they killed the babies. The blood will never wash out.

With the memories of such brutality also etched indelibly into her mind, Dita remains incredibly composed narrating the story of Choeung Ek. As a guide in a tourism industry that profits but also suffers from the retelling of Khmer Rouge history, she cannot forget. Gingerly leading me past the trenches of mass graves, shattered Chinese tombstones, and orderly rows of disinterred skulls, femurs and shinbones, I am still dumbstruck by her composure. While the sheltered foreigners weep quietly, Dita continues unfazed: “in the camps, I would search the forest every day for extra food. Sometimes, we would be lucky to find a frog, or a spider. But every day you would have to be careful: every extra mouthful not provided by Angka was a death sentence”. She passes me a leaf from the tree above me to try. Even forty minutes after the initial bite, I can’t un-taste the cutting bitterness, of a tree fed by the countless bodies only a few feet underfoot, and all around.

At the on-site museum, all four walls are plastered with placards lauding the ECCC and the official justice process. I am drawn to one: “At the End, Justice is Found for the Cambodian People”, it proclaims. Throughout, the ECCC is presented as a proactive search for justice by the liberator post-Khmer Rouge government, another signboard reading: “the Royal Government of Cambodia and the international community do not allow this bitter history to pass without the responsibility of those who committed the crimes”. But, what happens to the soldiers who beat Dita? What about the people who killed her father?

In Cambodia there is no justice like in Europe. Here, only money talks.

Survivors I talked to frequently pointed to the links between the current Cambodian People’s Party (CPP) government and the Khmer Rouge. Led by Hun Sen, the CPP broke away from the Party in 1977 when it began to be targeted by internal purges, fleeing to Vietnam. Enlisting the support of the now united Vietnamese state, it successfully overthrew the regime in 1979, sparking a twenty-year Civil War that only ended in 1998. According to survivors, the CPP remains committed to the same broad communist ideology as the Khmer Rouge, except now “Cambodia is open for business”. For these same survivors, however, the ECCC justice process loses significant legitimacy through its links to the CPP regime. By confining responsibility and ‘justice’ to a small ‘Pol Pot/Ieng Sary Clique’ represented by the five ageing accused, the atrocities of an entire state, elite and militia are apportioned to a mere five people, two of whom are unable to be tried. While pragmatic issues remain to pursuing justice against a wider spectrum of society, the efforts of the government to grant amnesties to high-ranking former-Khmer Rouge officials and embrace them into the post-conflict state, as well as its opposition to any expansion of the ECCC prosecutions beyond two cases, and forced resignations of international judges, all crystallise a sense of institutional failure. For many Cambodian survivors now, the ECCC may be legally ineffectual, but it is a highly effective political tool in the arsenal of the post-conflict state. As Dita told me: “only the poor respect the law in Cambodia. The judiciary is corrupt. So, if I meet one of the people who hurt me during that time, I will hit them, and beat them. Only this way can I get justice”.

Time’s up. Back to the bus. The bitterness of the leaf still haunting my mouth, I turn towards the brooding metal gate at the entrance. Even five hundred metres away, the spire of the Choeung Ek memorial pierces the contorted sky. Finally the clouds break, and the downpour begins. Driving back to Phnom Penh, back to the bustling, cosmopolitan capital, where business is booming, I can’t help thinking of these two very different experiences. Like any other post-conflict state, Cambodia still remains embroiled in the legacy of trauma. People like Dita cannot forget. With a judicial process designed for more political than healing purposes, she cannot forgive either. Concepts like “justice” and “retribution” become the salves of wounded nations, but may spoil where victimisers remain empowered in the post-conflict political order. Only time will tell whether the ECCC can address the needs of a traumatised population. Maybe the conviction of Khieu Samphan and Nuon Chea – the first truly senior leaders to face prison terms – will finally offer closure: for many survivors, though, the ECCC is merely too little, too late.

Nick Horton is a third year Asian Studies/Law student at the Australian National University, and was recently awarded the New Colombo Plan Scholarship to study at the University of Tokyo in 2015. He recently returned from fieldwork in Cambodia while studying at the National University of Singapore.

 

 

 

 

 

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