Final Justice

Good Weekend logoHere in Bill Smith’s office there’s a very fat text, maybe 10 centimetres thick, bound in pale pink paper. It’s one of thousands of so-called “confessions”, extracted by torture at the notorious Tuol Sleng prison run by the Khmer Rouge in Phnom Penh. The text sits in a bookcase stacked with fat folders bulging with the evils of the Khmer Rouge.

This has been Smith’s life for eight years. On Thursday (Aug 7) the joint UN-Cambodian tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), will hand down a verdict and Smith will finally see two of the leaders of Cambodia’s murderous Khmer Rouge regime brought to justice. “It certainly will be a very satisfying day, no matter the outcome,” he says quietly. “It will be a relief.”

Screen Shot 2014-07-30 at 11.55.27 AMThese Khmer Rouge leaders, Nuon Chea and Khieu Samphan, ran a regime where pregnant women were hacked to death with hoes, toddlers swung at walls by their feet until their skulls caved in or thrown off high buildings, where thousands were beaten into submission and tortured with monstrous ingenuity. As many as two million people were killed or died of overwork or starvation or untreated illness at the hands of the Khmer Rouge.

An ordinary guy from suburban Adelaide, a guy with a relaxed manner and a slow and comfortable smile, Smith has helped to make these leaders accountable for their horrific crimes.

Working on the prosecution team at the tribunal, he has soaked up the history of one of the most vicious regimes ever known, heard testimony that reduces on-lookers to tears and sifted through the evidence of crimes that turn the strongest stomach.

Nuon Chea, known as Brother Number Two, now 88, was the acting Khmer Rouge prime minister and in charge of internal security and second only to Pol Pot. Khieu Samphan, 83, was the head of state. Charged with crimes against humanity, both have repeatedly declared their innocence.

Smith isn’t having any of it. “These are two of eight or ten people who were the prime movers behind this political revolution in Cambodia that led to the killing of so many,” he says grimly. “The architects, the orchestrators, the planners – these are the people who made it happen.”

BillSmithOriginally from Norwood in Adelaide, the 52-year-old lawyer now lives in Cambodia’s capital Phnom Penh with his wife Deirdre, a writer and editor, and their two sons, Hugh, almost 17 and Archie, just turned nine. Hugh, Smith thinks, might become a lawyer. Archie is the creative one. Both children have settled well in Phnom Penh, where they have now lived most of their lives, where they have friends.

Outwardly, Smith’s a bloke who likes to watch AFL and play Scrabble, who rides a pushbike through the Phnom Penh traffic to work and who takes his youngest kid on a holiday to Legoland. But inside there’s a man with a burning sense of justice. Tall, with a warm voice and a determined air, he talks in a deliberate and measured way, setting out the facts. He has the job of prosecuting the mass murderers responsible for the deaths of maybe two million Cambodians, working in a tribunal beset with political interference and warring personalities. A number of lawyers have fallen by the wayside, burned out and fed up. Not Smith. His focus hasn’t wavered, and he says he’s in for the long haul.

“These were intentional policies, to kill, to treat people in such an inhumane way,” Smith says, flatly. “It is very important for the general public and the victims to see that the people who implemented this program are being brought to account.” Nuon Chea and Khieu Samphan might not have murdered or tortured anyone with their own hands but, Smith says, they have been charged with running the whole circus that insisted on murder and torture and brutal oppression.

“Nuon Chea, Khieu Samphan, with Pol Pot and others, entered into an agreement of a criminal nature – to eliminate anyone opposed to their policies,” Smith says. “That included former government officials, former soldiers, people of the upper class, people of particular religious groups, like the Chams; the Vietnamese. They classified society in terms of enemies and non-enemies.”

Cambodia is a long way from Whyalla in South Australia, where Smith began his career as a police officer, 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 two decades 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.

It hasn’t been an easy ride. Smith grimaces. He has heard too many stories of dying children and tortured parents, the pain of thousands, facilitated by faceless bureaucrats.

“It’s unthinkable. It makes you very angry,” he says. “This works motivates me. So many people had no ability to respond. This is one way to respond to the people who are responsible for the policies that led to these deaths.” He pauses. “It does affect you over time.”

The Khmer Rouge ruled Cambodia between 1975 and 1979. The merciless ultra-communist leaders and their henchmen killed – either directly or indirectly – one fifth of Cambodia’s population. This small and secretive clique of paranoid despots ordered the execution without trial of more than 200,000 “party enemies” and plunged the nation into blood-soaked despair.

Screen Shot 2014-07-30 at 11.56.33 AMEssentially Maoist, the Khmer Rouge believed in continuous revolution. Led by the notorious Pol Pot, or Brother Number One, the regime instituted the “the killing fields” where suspects were executed with a blow from an iron ox-cart axle to the back of the neck or to the head, before their corpses were tipped into a pit. Ultra-paranoid, Khmer Rouge leaders believed that treachery was infectious and had to be eliminated. When there were power failures at Pol Pot’s Phnom Penh residence, it was assumed to be deliberate malice on the part of maintenance workers, who were then killed.

The leaders turned on their own just as readily. Hu Nim, once a Khmer Rouge leader, was suspected of treason. Whipped again and again, “stuffed with water”, repeatedly tortured: Hu Nim finally broke. Long weeks after his arrest by the Khmer Rouge police, he ended one so-called confession with the abject words: “I am not a human being, I am an animal.”

Since this trial began in November 2011, the tribunal has heard from 92 people, many of them with lives ripped apart; children or parents killed, or dead from overwork or starvation or untreated illness. Or just gone.

Smith remembers one woman telling the tribunal about sitting with her little girl, a rake-thin toddler – one of those children who are wise beyond their years. “The little girl asked why they couldn’t go to the hospital just down the road, like they did before,” Smith says. “We just can’t’ her mother answered.” The child asked a couple more questions and then, Smith says, she died in her mother’s arms.

He has heard so many of these horror stories, sitting in the massive and modern tribunal building on the outskirts of Phnom Penh, where the chamber is walled in with bullet-proof glass and the robed judges and prosecutors and defence lawyers marshall their arguments.

Mom Sam Oern was 84 when she testified in 2012, telling the tribunal how she lost her husband and six of her children to the Khmer Rouge. She was living in Phnom Penh on April 17, 1975, when the Khmer Rouge, in their black uniforms, mostly young country men with red chequered scarves and car tire sandals, took the city and immediately began to force the residents to leave, to pick up their children and simply walk away.

City residents, or the “new” people, or the “17 April people” were considered the enemies of the Khmer Rouge, the industrialists and the entrepreneurs who had to be pushed back into the countryside and forced to work with their hands. Khmer Rouge leaders feared city-dwellers would resist the envisaged agrarian revolution intended to bring massive rice surpluses.

At the same time, money and banks were abolished, religion was outlawed, private property was confiscated. Schools and hospitals were closed. People were forced to live and work crippling hours on collectivised farms. Even eating dinner alone, or with relatives, was forbidden — all food had to be eaten in dining halls. It was Year Zero.

Mom Sam Oern taught French at a school, her husband ran a factory. When the first Khmer Rouge soldier pushed into her house, she was crouched by the safe, trying to open it to retrieve some valuables. The soldier put a gun to her back, then took off her glasses and smashed them on the floor. Glasses, apparently, were an indulgence. The entire family joined the river of Phnom Penh residents retreating from the city on foot – hospital patients still attached to IV unit, heavily pregnant women, hungry and thirsty young children.

“And also I saw a lot of corpses, and we were very terrified,” Mom told the tribunal. “I kept telling my children to be very careful and mindful of what they did. And also I saw

people who had passed out because of exhaustion and dehydration, and also — we saw everything, and my – and we also witnessed the moment that it doesn’t matter how well or sick we were; we had to keep moving on.”

Mom held a fragment of her broken glasses to her eye to see with; she didn’t get new glasses until after the fall of the Khmer Rouge nearly five years later. Six of her children and her husband, as well as other relatives were lost in the Khmer Rouge years: maybe starved, maybe executed.

“The children of mine who still survive take turn in taking good care of me, and I live on the assistance provided to me by my children,” she said. “However, I still feel – I’m still feeling about my husband. I still think of what could have happened to him.” She paused.

“I don’t know how I can forget about this. My children, these days, keep telling me to forget something about the past, but I can’t. It’s too difficult.”

Sometimes the suffering is hard to listen to. Soon after arriving in Phnom Penh as a young man, Chau Ny, with his brother, sister-in-law and three young nephews, aged 4, 6 and 7, were pushed out of the city by the attacking Khmer Rouge soldiers.

They wound up in a rural cooperative where he watched the three boys slowly starve to death. “My nephews, before they died, they were in a very pitiful state,” Chau said in his tribunal testimony. Someone gave one of the boys a cob of corn. He ate it, and he was in such a wretched state that he excreted undigested corn kernels, which he then ate again.

“Even if the food that was coming out amongst their faeces, they ate that food as well,” Chau said. “Even for my brother, before he died, he only begged for a small piece of a sugar, a palm sugar, but we could not find the palm sugar for him before he died.”

The Khmer Rouge tribunal has only convicted one defendant so far: Kaing Guek Eav, better known as Duch, the official in charge of the notorious Tuol Sleng prison, where an estimated 12,000 Cambodians were tortured and killed. Duch was sentenced to life in prison, and Smith cross-examined him yet again in this trial of Nuon Chea and Khieu Samphan.

“He had a lot of information about his relationship with the senior leaders and how the policies were made and how the Khmer Rouge was structured,” Smith says. “That evidence was quite important to prove the relationships of Nuon Chea and Khieu Samphan and Ieng Sary to the crimes that were committed. In a sense, Duch was a middleman. But he was close to the centre of power because Nuon Chea was his immediate boss.”

Two other Khmer Rouge leaders were originally intended to stand trial with Nuon Chea and Khieu Samphan. This ‘Gang of Four’, as they were sometimes known, were Pol Pot’s senior ministers. But Ieng Sary, once Cambodia’s deputy prime minister, died last year while Khmer Rouge tribunal trial was underway. He was 87. His wife, Ieng Thirith, once Cambodia’s social affairs minister and now aged 82, has been deemed incapable of standing trial because she has dementia.

The departure of two of the four defendants was a bitter blow, and howls of outrage resonated around the world. Smith, naturally, declines to vent his emotions. “It was disappointing,” he says with marked understatement. “That was two opportunities lost, I think, to discover a bit more insight into their roles, their involvement.”

Still, Nuon Chea and Khieu Samphan are still breathing, and still compos mentis. Smith believes they have been playing to the gallery, believing public sentiment might save them. Nuon Chea first appeared at the tribunal in the sort of hat a 15-year-old snowboarder might wear and giant reflector sunglasses. “He’s still got attitude,” Smith says with a faint smile. And the concern that Nuon Chea might be too old and too weak to get to the end of the trial was finally and resoundingly laid to rest when he gave a final statement for more than 90 minutes. “Oh yes,” Smith says. “Their minds are very, very sharp.”

So this important verdict is imminent, but the pursuit of justice has been achingly slow. Working in French, English and Khmer, and battling barbed allegations of corruption and political interference, as well as ongoing funding woes and rumbling infighting, the tribunal has trudged on.

Many have questioned the price of this justice. The tribunal has cost nearly US $204.6 million (nearly $218 million) to date, mostly funds from international donors: Australia is the largest donor after Japan, and last month (subs July) pledged a further $3.25 million. This giant cost has resulted in one conviction, and potentially three by next week.

Even if Nuon Chea and Khieu Samphan are convicted on Thursday, work will continue on their second trial, for yet another catalogue of crimes. It’s now nearly 40 years since the Khmer Rouge took Phnom Penh. Most Cambodians had not been born when the Khmer Rouge wrought their bloody legacy, and $218 million, some say, would go a very long way in a poor nation.

Smith insists the tribunal’s legacy is worth the money. He points out that 390,000 people have been directly exposed to this the workings of the tribunal, in a country where Khmer Rouge history is not taught in schools and memories are fading. More than 150,000 Cambodians have been to the tribunal and witnessed the trials proceeding.

“Few people have been brought to trial; only a few ever will,” he says. “It was very important that the senior and most responsible, because that makes the most sense. If not for the few people with the ideas, and the planning and the implementation, then this wouldn’t have happened. There’s a logic to it.”

Son Chhay, a senior member of Cambodia’s opposition party, who fled the Khmer Rouge as a teenager, sees the tribunal as a monumental waste of money. Cambodians don’t care about justice for the Khmer Rouge, he says, they just want to get on with their lives. The Cambodians who visited the tribunal went only because they were given a free bus ride and free lunch. “It’s just rubbish,” he says. “They say it will help improve the Cambodian justice system? Well, look at the Cambodian justice system now.”

The Khmer Rouge killed foreigners as well, including four Australians. In 1972, a 24-year-old Australian photographer, Alan Hirons, was taken on Route 1, some way out of Phnom Penh, and marched cross-country to a Khmer Rouge stronghold, where he was eventually killed.

In 1978, two Australian yachtsmen, Ronald Dean and David Scott, were captured by the Khmer Rouge in 1978 when they sailed too close to the coast of the nation that had been renamed Kampuchea. It seems likely they were executed near Tuol Sleng prison and their corpses burnt using discarded car tires.

Much later, in 1994, long after the Khmer Rouge had been pushed out of Phnom Penh by Vietnamese troops and corralled in a corner of Cambodia, a 29-year-old Australian youth worker named David Wilson was captured and held hostage by the Khmer Rouge. He, too, was eventually murdered.

So in the very last days of this trial of Nuon Chea and Khieu Samphan, some Cambodians are looking to the future.

In the past, Cambodia’s prime minister Hun Sen (also once in the Khmer Rouge) has made it clear he wants no more investigations, no more trials. In 2009, when Smith sent the last cases to the investigating judges, Hun Sen speculated darkly that foreign nations were fomenting civil war for their own ends. Despite his fulminations, the work is grinding on with these cases, but no more are planned.

The end is in sight, a few years down the track, and the tribunal will have done its work: prosecuting the leaders of one of the most barbarous regimes the world has ever seen.