What Makes for Justice in Cambodia?

In the heart of Phnom Penh, the Tuol Sleng Genocide Museum stands on the site of one of the Khmer Rouge’s most notorious detention and interrogation camps—S-21 prison. It is a monument to the more than 12,000 people who were imprisoned there to face torture and execution, and the hundreds of thousands of people across Cambodia who lost their lives during the Khmer Rouge’s reign from 1975 to 1979.

This week, more than 30 years since the Khmer Rouge was driven out of the city, the tribunal set up to try the architects of the regime’s worst crimes finally delivered its first sentence. The warden of this infamous prison, Kaing Guek Eav—known by most Cambodians as Duch—was silent when the Court read out the guilty verdict and sentenced him to 35 years.

Many victims, however, were outraged.

For the victims of humanity’s worst atrocities, international criminal courts are meant to offer some measure of justice. These courts seek to give voice and power back to the victims, and are often the only hope left for people seeking redress when their governments have failed to protect them.

Yet victims in Cambodia have expressed disappointment with the length of Duch’s sentence and the inadequacy of the reparations. Based on Duch’s cooperation and his expression of remorse, the Court sentenced him to 35 years, rather than life. It then shortened the term by five years in acknowledgment of excessive pretrial detention. Duch has already spent 11 years behind bars awaiting trial and will now spend another 19 years in prison, serving the remainder of his sentence.

For reparations, the names of 66 civil parties (either survivors or close relatives of prisoners) will be included in the final judgment, and Duch’s statements of apology and responsibility will be published on the Court’s website.

But does this amount to real justice for Cambodians?

Some have called the sentence a slap in the face of the victims. Understandably, many Cambodians feel that no sentence—especially one shorter than the maximum of life in prison—can properly acknowledge their suffering and loss. A court of law cannot undo the impacts of an atrocious crime, or make up for the deeply painful experiences these people have shared.

Evaluating whether or not a sentence is sufficient for either the victim or the perpetrator is understandably difficult. On the one hand, we can look at how well the sentence follows established jurisprudence. Duch was found guilty of crimes under international law. In its decision, the Court clearly looked at well-established jurisprudence from other international tribunals. Indeed, the sentence was consistent—if even somewhat harsher—than those delivered by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda for similar crimes.

Courts typically repay a defendant’s cooperation during trial with some recognition in sentencing, and Duch’s case was no exception. His cooperation during the trial—providing substantial evidence and offering credible explanations for otherwise confusing events—may have been to some extent self-serving, but his actions were nonetheless significant. Duch helped to simplify the case and ensured the Court and the public understood what occurred at the prison. This understanding may prove to be indispensable when other defendants’ cases come before the Court. In fact, no other significant Khmer Rouge leader has spoken so extensively about what went on at the high levels of the regime.

Sincerity of remorse is even more difficult to judge. Many felt that Duch’s repeated expressions of remorse and acknowledgment of responsibility during the trial were feigned or inadequate. Duch’s behavior during the trial’s final days was particularly controversial. Despite having previously apologized to the victims for his actions, in the end Duch asked to be acquitted, claiming he was not the “person most responsible” for crimes committed by the Khmer Rouge as required under the Court’s jurisdiction. The Court acknowledged this change, but nonetheless considered Duch’s expressions of remorse in limiting his sentence.

The sentence imposed by the Court also appears to be well within the discretionary parameters established under international law for similar crimes. Judges who examine and evaluate the credibility of the evidence in a trial are generally granted discretion in handing down a sentence. While the parties can appeal the sentence for abuse of this discretion or for legal errors, international tribunals, and most domestic jurisdictions, grant great deference to trial judges in considering relevant factors and arriving at a sentence they believe is fair under all the circumstances.

The Court’s weak reparations award has little precedent under international law, as the tribunal in Cambodia is unique in its provisions for civil parties and reparations. However, the award clearly provides nothing of real value to civil parties. Their names should already be included in any judgment to which they are a party, and they have access to prior statements made by Duch regardless of what the court puts on its website. In September, the judges will meet to consider important amendments pertaining to the rules for reparations. Obviously, popular dissatisfaction with how the Duch case was handled in this respect deserves careful consideration. Although any changes will only apply moving forward, these amendments may help to satisfy other victims. .

Nevertheless, the controversy about this trial’s outcome should not overshadow its significance. This was the first public trial against a defendant deeply involved in the crimes of the Khmer Rouge. Close to 30,000 Cambodians attended a portion of the proceedings in person, and millions more Cambodians watched on television. The trial’s most important contribution may not be time Duch spends behind bars, but the catalyzing effect this event has had in generating discussions about justice, impunity, and the history of the Khmer Rouge. Real justice and accountability is never possible in silence.