Cambodia war crimes court attract huge interest from public while west takes justice system for granted

Politicians are not learning lessons to prevent genocide and war crimes before they happen, warned a leading international judge.

Even as the general public is aware of atrocities and may campaign to prevent them, national and global courts are still left to seek justice sometimes decades after crimes are committed.

Justice Rowan Downing¹ spent more than eight years as a judge on the Extraordinary Chambers of the Courts in Cambodia (ECCC) working on war crimes cases from the Khmer Rouge years that left millions dead in the south-east Asian country.

Speaking at the annual conference of the women’s voluntary group Soroptimist International Great Britain & Ireland,² Justice Downing said the victim was at the heart of international justice and almost everyone alive in Cambodia today could be classed a victim.

He told Tomorrow: “We don’t learn. Politicians don’t learn, and it’s because of the geo-political machinations. Members of the general populace, they know what’s going on, but probably feel helpless.

“And you will find in every society people will protest and they will try and raise awareness. But those who are actually able to do something, the question has to be asked, what do they have to do and why don’t they do something effective?

“We have continuing examples, every day you can see it, but the geo-political realities of life are what stop us.”

The judge, originally from Australia, told the audience of 1,200 women in Glasgow, UK: “International criminal law is … about the humanitarian approach to the victims who are left. You can do nothing about those who are killed. There seems to be an unwillingness in many of our political leaders in the world to actually step in and stop these atrocities as they’re occurring. But I think we have a humanitarian duty to give all assistance who have been affected by civil war and conflict. There can be no higher duty because these people are left with nothing.”

In the space of three years, eight months and 20 days, from 1975 to 1979, between 1.8 and 2.5 million people were killed under the Khmer Rouge regime in Cambodia – who declared it Democratic Kampuchea – almost all by either torture or over-working.

The ECCC or Khmer Rouge Tribunal was set up after decades of civil war, mixing both a domestic Cambodian system with the United Nations-supported French-based system.

Justice Downing demonstrated the scale of the purge of humanity with the audience by asking anyone with glasses, a university degree or speaking more than one language to stand – such people had “very slim” chances of survival in Kampuchea.

The senior law judge, who is now based at the UN Dispute Tribunal in Geneva, Switzerland, but was speaking in a personal capacity, said it would take an estimated five generations for Cambodia to recover, but noted there were just 38 psychologists and three psychiatrists in the country of about 15 million³. He said that level of mental health support was “not possible for the wellbeing of the victims”.⁴

“In common law the victim is a witness to an event and may appear as a victim,” Justice Downing explained to the conference. “In a murder case or the like where the actual victim is no longer with us, at the end of the case the family can make an impact victim statement in many countries to the court, to the judges, with a view to influencing the sentence. 

“In the French system, the victims are actually participants, they get to cross-examine and examine the witnesses, they get to address the court on all issues – it’s a much more inclusive system.

“But the problem is that the French domestic system, it’s easy to identify the victims. And when you try to apply to mass atrocity crimes, it doesn’t work because who are the victims?

“Those of us in my chamber said we need to make a difference here – we need to expand the definition of victim. We increased, internationally, the definition of victim to include the psychological victim. And as a consequence almost everyone in Cambodia, because of their post-traumatic stress, they fall within the definition now, at international law, of victim.

“And it’s very very difficult to know what to do for these people. And I urge you, if you are ever in a position to provide psychological assistance to people as a result of war crimes, it’s a very good project.”

Justice Downing said the ECCC had an advantage compared to the International Criminal Court⁵ in The Hague, the Netherlands, dealing with other war crimes cases where it was so removed from victims that rarely more than academics might attend hearings.

By contrast, the first case of the ECCC, where Kaing Guek Eav⁶ – alias Duch – was found guilty, attracted 33,000 people to observe the trial. The second case, now in its second phase, has been witnessed by 160,000 people over 460 days of testimony, said Justice Downing. That is on top of live broadcasts from the court and outreach programmes to explain the court system to communities around Cambodia. The total outreach statistics from 2009 to 2014 were more than 400,000 people.⁷

“It also shows the importance of having such trials, not in the Hague, but rather in the location so that people can take part, they can see justice being done,” stated Justice Downing.

“One of the major difficulties is what do you do for victims, and for me the living victim is the centre of the trial. We have within the United Nations consideration, impunity from justice – no-one who commits one of these offences against humanity should have impunity from justice. That’s good.

“Whether it will deter anyone, I don’t think there’s much evidence of that personally because we still have mass-atrocity crimes occurring today. But the justice for the victim is really very, very important.

“And it shouldn’t have to wait 30 years as it did in Cambodia. Because if we look at the experience of victims, they have gone from a shattered state where they had absolutely nothing, they’ve had to cope, they’ve had to rebuild their lives and managed over a period of 30 years to learn how to do this, how to survive daily, how to get one. Then all of a sudden, a court, a tribunal, rolls into town with a re-traumatisation. Everything that has occurred before, which they were at least able to at least put to the back of the mind at some stage, is brought forward. What’s the effect of that on a person? It has to be appalling.”

The interest in justice in Cambodia, Justice Downing explained, is in contrast to that in the west where the system is taken for granted.

“In countries where you don’t have it, you cherish it, from my experience,” he told Tomorrow after his speech. “We take it for granted in the west because we have a functioning system. Those who don’t have a functioning system wish they did and therefore they cherish what works.

“It’s very difficult and there are areas where the judiciary are corrupt so people don’t go to court because they know that they can’t get justice. Courts are not there to be used as tools for rich people – they should be there to solve problems, whether they’re at a civil level or a criminal level, but many countries that just does not occur.”

Access to justice was also addressed at the Soroptimist conference by Andrew Bevan, regional development executive for Scotland with the International Justice Mission,⁸ who cited the UN figure that 4 billion people were under threat of “daily violence”. Poverty and corruption in police forces or the courts lead to sexual violence and trafficking, police brutality, land grabbing and slavery.

In September, 193 countries voted in favour of Sustainable Development Goals,⁹ with number 16 being to “promote just, peace and inclusive societies” and providing “access to justice for all, and building effective, accountable institutions at all levels”. Target range from reducing violence against and torture of children, reducing illegal arms and corruption, increasing access to information and providing a legal identity for all, including birth registration, by 2030.