The calm Australian voice cut through the charged silence of the trial chamber; asking measured questions about one of the most depraved periods in human history: the bloodstained rule of the Khmer Rouge. The merciless ultra-communist leaders and their henchmen killed – either directly or indirectly – one fifth of Cambodia’s population in a few short years in the 1970s.
Prosecutor Bill Smith, from Adelaide’s Norwood, faced Kaing Guek Eav, the commandant of the notorious Khmer Rouge S-21 secret prison in Phnom Penh, a grim building where thousands of “party enemies” were tortured, starved and beaten before they were summarily executed. Smith looked over at the defendant and tried to pin him down on more than 15,000 deaths in the prison and its killing grounds.
It was mid-September, at the end of the witness testimony phase of the first Khmer Rouge trial in Cambodia, and Kaing, better known as Duch, was not cooperating. Although he had earlier confessed to some conditional guilt, and apologised to the victims, he refuses to admit he personally killed and tortured prisoners, refuses to admit he was a central player in the Khmer Rouge regime, and insists he feared for his life, and the lives of his children and subordinates if he failed to follow orders. Still, the prosecution has found that hundreds of the so-called “confessions” discovered at the S-21 prison have been neatly annotated by Duch, who added suggestions for beatings or torture, and urged interrogators to get at the “truth”. Other documents are orders he signed to torture, or “smash” (execute) prisoners.
Leaning forward attentively, wearing a neat, short-sleeved white shirt, and an expression of blinking candour, the 66-year-old one-time school teacher took issue with Smith’s adjectives, disputed earlier translations, and frequently began his answers with a note of exasperation and impatience at the need to repeat himself, saying: “As I have already told the trial chamber …”. When Smith asked him to confirm he felt trapped by the Khmer Rouge for “26 or 27” years, from 1971 until 1999 when he was finally arrested, Duch snapped: “Could you please make a proper mathematical calculation?”
For the last seven months Duch has been on trial for crimes against humanity, murder and torture, the first of the Khmer Rouge defendants in the Extraordinary Chambers in the Courts of Cambodia, usually referred to as the Khmer Rouge tribunal. Following the rout of the Khmer Rouge by Vietnamese forces in 1979, Duch stayed loyal and fled with the leaders to Cambodia’s north where he lived until the 90s; eventually converting to Christianity, and taking a false name. He was eventually recognised and outed by a British journalist in 1999.
“He is being tried for ordering the crimes,” Smith says in his office after the day’s hearing. “He is being tried for instigating the crimes. He is being tried for aiding and abetting the crimes. He is also being tried for committing the crimes.” The last charge is where the idea of “joint criminal enterprise” comes into play; Duch has been held responsible for thousands of deaths, even though he might not have personally killed the victims. He was in charge of the S-21 prison, also known as Tuol Sleng, until its last day of operation, when Vietnamese forces invaded Cambodia and the Khmer Rouge regime came to a shuddering halt in January 1979, after nearly four years of horror and the deaths of 1.7 million Cambodians.
Bill Smith, the Australian co-prosecutor at the Khmer Rouge tribunal. Photo Sian Powell.
S-21 was less a prison than an overture to death: only about 12 prisoners lived to remember its structured schedule of atrocities. Prisoners were shackled and starved – some resorted to eating insects. Many were beaten with rods, whipped with electrical cord, shocked with electricity. Sometimes the interrogators pulled out prisoners’ fingernails and toenails; some prisoners were forced to eat faeces and drink urine. Many of the torture sessions were repeated again and again, with the idea of rooting out some fantastical treachery: the prisoners were thought to be members of the KGB, the CIA, the Vietnamese forces. Most lied, and agreed they were spies or traitors, simply to get away from the pain.
Duch asserts he ran S-21 because he feared the consequences if he refused. But Smith points out that duress is no defence, and anyway, the prosecution case is that Duch willingly followed orders, that he found satisfaction in the work of furthering the revolution.
Smith, and Smith’s Cambodian co-prosecutor Chea Leang, have been trying to set the historical record straight, and impart some understanding of the sheer depths of Duch’s guilt and accountability. The one-time prison commandant thought it normal to execute babies by swinging their heads against tree-trunks, and kill children by throwing them off high buildings; routine to brutally torture and execute his compatriots for patently false crimes. He recruited young and poorly-educated Cambodians to work in the secret prison; kept them isolated and nurtured their brutality.
In the three years since he began work at the tribunal, Smith has had to wade through thousands of pages of Khmer Rouge documents; many of them the largely fabricated “confessions” written by prisoners at S-21, prisoners who were tortured before they were trucked out to the killing fields at Choeng Ek where they were executed with a blow from an iron ox-cart axle to the back of the neck or the head before their corpses were tipped or kicked into a pit.
“Over the years this work does affect you,” Smith says. “Yet you find efficient ways of preparing and presenting the cases, and inevitably that means you can’t stop too often and dwell on the pain suffered behind every confession, photo, statement and testimony. But when you inevitably do, and the tragedy, anguish and horror hits you – you slowly get back up again because it’s that pain they suffered and lack of human dignity they endured – that drives you to find some justice, respect and dignity for those victims.”
It’s a long haul from police work in Adelaide and Whyalla, where Smith began his professional career dealing with drunks, robberies and minor assaults. He moved into the law, first in Australia and then overseas, where he has spent most of the last 13 years dealing with eye-wateringly brutal war crimes, to begin with in The Hague with the Serbs and Croats of the former Yugoslavia, then in East Timor after the independence vote, and finally in Cambodia.
A 47-year-old married South Australian, with a couple of young sons, a man who likes Scrabble and watching AFL, Smith is an endearingly ordinary bloke to lead the charge against the Khmer Rouge rulers. He likes family life; playing basketball and cricket with four-year-old Archie and 12-year-old Hugh, relaxing with his wife Deirdre (a writer, now working on a book about family life in The Hague), holidaying in South Australia’s Port Elliott. Within that civil and gentle demeanour is a burning sense of justice. He is genuinely happy to do battle with the Khmer Rouge, to try and get some kind of justice for the hundreds of thousands of victims; both the dead and those still living. “I want to achieve some sort of respect for the lives they led, and make it known that they meant something,” he says. If that means months and years tracking the hideous sins of Khmer Rouge leaders, so be it.
This small and secretive clique of paranoid despots ordered the execution without trial of more than 200,000 “party enemies”; abolished money and private property, schools and temples; persecuted city-dwellers and intellectuals and plunged the nation into blood-soaked despair.
Essentially Maoist, the Khmer Rouge believed in continuous revolution, which required continuous purges of the party’s enemies. When no real enemies could be found, ordinary Cambodians were rounded up and forced to confess to fictional treachery and, worse, forced to implicate lists of their friends, relatives and associates – the so-called “strings” of subversives. By weight of sheer numbers, Cambodia is the worst of the killing fields Smith has investigated; including the former Yugoslavia and East Timor. And, he says, in at least one sense, the Khmer Rouge committed the most brutal atrocities. “The absolute determination of the Khmer Rouge to rid themselves of enemies, whether they were real or perceived, and they were mostly perceived, was horrific. The most criminal fact about what occurred here is that it was done when there was very little conflict; once they’d gained control of the country it was a society that had become ordered. Then they tortured and executed masses and masses of people. It really doesn’t get much worse than that.”
After three years of immersing himself in the bloody history of the Khmer Rouge, listening to victims’ testimony, and putting together prosecution cases against the Khmer Rouge while working as the hybrid international-Cambodian tribunal’s deputy co-prosecutor, Smith became the acting chief international prosecutor on September 1 when his predecessor resigned because of family reasons.
A replacement for the chief will be found in due course, but until that time, Smith is, with his Cambodian counterpart, Chea Leang, in charge of the prosecution against Duch. In late November he will present a lengthy closing argument to the tribunal, which is expected to come up with a verdict early next year. Meanwhile, work continues on the next prosecution case, expected to begin late next year: the combined trial of four of most senior surviving Khmer Rouge leaders: Nuon Chea, Khieu Samphan, Ieng Sary and his wife Ieng Thirith. All are elderly, over 80, none has confessed to anything. And then, in the shadowy future, lurks a potentially even more controversial trial.
Within days of becoming international co-prosecutor, Smith quietly sent another five (so far classified) names to the pre-trial chamber for consideration. All five, he says, have been exhaustively investigated, and all five are “strong, solid cases”, filling an array of binders with documents. Yet his colleague, the Cambodian co-prosecutor Chea Leang, declined to support Smith in his attempt to add to the tribunal’s number of prosecutions. She has long said that any further cases beyond the five already underway could “destabilise” the nation. Some analysts believe she is under instruction from the Cambodian prime minister, Hun Sen, who has tried to limit the scope of the tribunal as much as possible.
Although he originally asked the UN for a war crimes tribunal, back in 1997, now Hun Sen is vehemently opposed to widening its scope. A one-time Khmer Rouge military commander himself (fled to Vietnam in 1977), many of his ministers and senior officials are tainted with the red of that bloody rule. Certainly the man once known as Brother Number Two, Nuon Chea, from the first set of five defendants, has already asked the tribunal to question Hun Sen, a plan which would put the prime minister in an undignified position, to say the least.
When Hun Sen learned Smith had listed a further five names for prosecution, charged with 32 instances of murder, torture, unlawful detention, forced labour, and persecution that constituted violations of Cambodian and international law, he flew off the handle. For now, the names are confidential, but Smith says none is a serving government minister. Still, Hun Sen was iridescent with outrage. “I would like to tell you that if you prosecute (more leaders) without thinking beforehand about national reconciliation and peace, and if war breaks out again and kills 20,000 or 30,000 people, who will be responsible?” Hun Sen said, apparently addressing Smith via the Cambodian media and warning him of unthinkable consequences for his rash actions. No-one really believes further prosecutions could lead to civil war. The Khmer Rouge is a spent force, and Cambodians are fed up with strife. But it could lead to the spilling of some unsavoury secrets.
The tribunal’s UN administrator, Knut Rosenbaug, felt compelled to issue a statement reminding all Cambodians that tribunal is be independent. “It is a clearly established international standard that courts do not seek approval or advice on their work from the executive branch,” he said.
Smith is not fazed by the fury of a man who ousted his co-prime minister two decades ago and has ruled with near impunity ever since. Twelve years ago, 16 people at an opposition party rally in Phnom Penh were killed when hand-grenades were hurled into the crowd. The FBI investigated (because an American was injured) and, according to an anonymous source, concluded Hun Sen’s bodyguards were behind the attack. In Cambodia, it is known the prime minister will brook no opposition. Soon after his charge that Smith was single-handedly fomenting civil war, Hun Sen speculated the mild-mannered Australian was the public face of an international plot. “I know that some foreign judges and prosecutors have received orders from their governments to create problems here,” Hun Sen darkly speculated. “There is no doubt that they have received advice from their governments to do so.” He went on to say “foreign governments” were not happy with a Cambodia at peace. “If Cambodia has war, they are happy, because then we’ll be easy to occupy.”
Smith is serenely forging onwards, paying very little mind to the prime minister’s fulminations. “This is a hot topic at the moment, and he’s very colourful in his language,” he says, with a faint smile. “We haven’t been stopped from doing from what we think we should be doing.”
But, Smith admits, the line has to be drawn somewhere, and it’s not likely any more individuals will be listed for prosecution after this initial ten. For a start, the international donors who have paid nearly US$100 million ($114 million) to keep the tribunal running until the end of this year will not keep handing over the cash forever. And, perhaps more importantly, there is a limit to how much accountability can be proved further down the chain of command.
It’s possible, in the face of Hun Sen’s intransigence, the second set of prosecutions will be derailed somehow, but it won’t be for want of prosecutorial diligence. “It’s important for this court to show its independence,” Smith says. “To achieve any sort of justice for Cambodia, the tribunal needs to prosecute some more senior leaders, to find more people responsible; to have some accountability for the people most responsible.”