TODAY, 31 Jul 2010In 2008, Singapore lawyer Mahdev Mohan and his wife, ex-journalist Vinita, set up Access to Justice Asia to represent Cambodian minorities in the war crimes trials of senior Khmer Rouge leaders. Mr Mahdev, 31, is the first Asian lawyer to act as legal counsel to the victims at the tribunal hearings. Currently an Assistant Professor of Law at the Singapore Management University and Associate Fellow of the Singapore Institute of International Affairs, he and his wife were there when this week's milestone verdict was handed down.
ON MONDAY, about 800 people - survivors, media and victims' advocates like us - listened in rapt silence at the Khmer Rouge Tribunal grounds as Judge Nil Nonn declared the former head of Cambodia's notorious S-21 prison guilty of war crimes and crimes against humanity.
When Kaing Guek Eav, alias Duch, was given a 35-year prison sentence for his "shocking and heinous" deeds which claimed more than 12,000 lives in the '70s, some former victims cheered.
But that was before they did the math.
They soon realised, Duch would serve no more than 19 years, taking into account his time served and mitigating factors. And with parole a possibility, Duch, 67, could spend as little as 12 years behind bars - considerably less than the 20 years or more which Cambodian courts mete out for less-serious crimes.
When we asked court spokesman Lars Olsen why the judges hadn't explained Duch's actual prison time more clearly, he retorted that the calculation was a "legal technicality". The response floored us. Imagine telling that to S-21 survivors like Chum Mey, who lost his wife and children to the Khmer Rouge, and seemed in a state of shock when his lawyers explained the verdict's intricacies.
In 2008, Chum Mey had hoped that participating in Duch's trial would give him a sense of closure. "I want to stay alive to give evidence," he had told us. "I survived the Khmer Rouge, and if I die before the trial, what was the point of surviving?" But standing outside the courtroom after the verdict, all Chum Mey could manage was: "I really cannot say anything. I am too sad."
The United Nations-backed court is the latest in a series of international criminal tribunals intended to bring war criminals to book and provide closure for victims and their families - but not always succeeding in either regard.
Last Monday's verdict, the first delivered against a major Khmer Rouge figure, brought things full circle for us. Sitting in that same courtroom in November 2007 while working for NGOs in Cambodia, we had been moved by victim testimonies at Duch's first pre-trial hearing. Soon after, we established Access to Justice Asia (AJA), a non-profit dedicated to assisting unknown or unrepresented communities in Asia that have gone through conflict.
AJA has been well-received by Cambodian victims; many survivors we spoke to over the next three years became friends. Even though we do not represent him, Chum Mey tells tourists during his daily rounds at S-21 about the maythievi (lawyer) from Singapore and his team who struggle to find justice for Cambodians.
REPARATIONS FALL SHORT
For the past three years, Khmer Rouge victims like Chum Mey have been encouraged by the court to participate in its trials as "civil parties", with the promise that they will have a voice in the proceedings and the right, among other things, to request collective reparations.
Chum Mey does not want financial reparation. He would be content if S-21 were converted into a monument or a public memorial which could serve to educate future generations about the lives of the persons who perished there. His hopes were dashed when the only reparation the court ordered was the compilation and publication of the judgment containing civil parties' names and Duch's apologies to victims.
The reparation ordered by the court is a far cry from the sort of reparations we have come to expect from international courts.
At the Inter-American Court of Human Rights, for instance, governments have been ordered to ensure that each civil party receives a copy of the judgment in their native language; establish trust funds for education or medical treatment; hold commemoration ceremonies to honour victims; provide security to victims; and investigate related contemporary human rights abuses. Unfortunately, the tribunal has eschewed such innovative measures and settled instead for something unimaginative and expedient.
The court's preference for expediency over recovery has unsettled many victims, including indigenous survivors we represent in the upcoming trial of four surviving senior Khmer Rouge leaders, which is slated to begin next year.
QUESTIONING THEIR FAITH
Over the past two years, we have worked with the Khmer , ethnic Khmers with roots in South Vietnam, to document their evidence. The Khmer Rouge falsely persecuted them as traitors with "Khmer bodies but Vietnamese minds".
Having just emerged from genocide, and with historical reasons not to trust any official information-gathering exercise, it has not been easy for our Khmer Krom clients to speak freely about the atrocities they suffered.
We have had to work hard to gain their trust and confidence. Working with local community leaders and international experts, we filed extensive data and legal petitions to the court. Our efforts paid off earlier this year when 15 Khmer Krom clients were formally admitted as civil parties for the upcoming trial.
However, in light of the Duch verdict, our clients have asked us if their new-found faith in the court is misplaced.
The court's reparation order has little resonance for our clients. Some are illiterate or do not have access to media sources, and may never get to read the judgment. Others feel that Duch's apology is insincere since he asked to be acquitted.
Sitting in Wat Pratheath, in the south-western province of Takeo, one of the civil parties, Tun Soun, swept his arm to indicate that everything around us used to be a crime site - mass graves, stupas-turned-torture centres, canals once filled with bodies. For Tun Soun, publishing half-hearted apologies on pieces of paper insults the memory of the departed.
LIFE REPLACES DEATH
In anticipation of such paltry reparation measures, Access to Justice Asia shifted its sights in January to oral histories and photography, which can be used to chronicle the Khmer Krom story.
Mass graves are ubiquitous in Cambodia; the only visual documents that exist are those documenting death. We need to offer its communities a different way of perceiving themselves and their stories, and we think the way is through photography and short films of daily life. While the desire to repeat their stories of suffering is still strong, we'd like to reflect back to them images of continuity and life, not death.
To the court's affiliates, these non-legal measures may appear insignificant. But last week, when we brought with us the printed photographs taken by our summer intern photojournalists, villagers in Takeo gathered around us - ecstatic and proud to sift through the photos and find their faces mirrored there.
Most of these people don't have a single photo of themselves. What little they might have had by way of mementos of lost family members was destroyed. That was the Khmer Rouge's prevailing mantra: All family ties had to be broken, all attachment to culture, community and religion erased. To have a joyous photo of a grandmother, a parent or a child may help them to fearlessly remember and speak up.
Speaking last week in Singapore, Dame Sylvia Cartwright, a judge at the court, described evidence she heard from Cambodian victims and the fact that their desire for "personal revenge" may never be satiated. With respect, not all Cambodian survivors are motivated by vengeance when they express dissatisfaction with the court's decisions. Many have legitimate expectations of justice, participation and commemoration inside and outside the court-room.
We hope that at the next trial, the court will fulfil these expectations and enable Cambodians to return to a dignified and meaningful life within their communities.
'Whose justice is it?'
As part of a team of trial monitors who had a ringside view of the daily tribunal proceedings for four months, Singaporean lawyer Delphia Lim, 25, learnt that justice can be chilly.
"We saw raw human emotion from victims and perpetrators alike giving their testimony, juxtaposed against the seemingly cold and at times harsh legalism of the court setting," she said. "We learnt that cold hard justice doesn't always lend itself to reconciliation and healing."
It was curiosity and the desire to witness "what I believed would involve the best and worst of human experience" that drove Ms Lim to get involved last year with the Asian International Justice Initiative.
As trial monitors, the team's role was to publish independent assessments of the proceedings, which were circulated to lawyers and the special Cambodian court created to try serious crimes of the Khmer Rouge regime.
Another fellow law graduate from the National University of Singapore, Ms Sangeetha Yogendran, 24, spent seven months with the court's Victims Support Section.
She also interned with Access to Justice Asia (AJA) doing outreach work, interviewing survivors and representing victims. When Monday's verdict was revealed, her immediate reaction "of joy and relief" gave way to mixed emotions. "It was very difficult watching the victims and the civil parties deal with their reactions, especially because I felt that the reparations award was somewhat of a joke," said Ms Sangeetha.
Ms Lim's attention was on S-21 prison chief Duch. "He looked shaken ... At the same time, the disappointment from the civil parties in the courtroom was palpable. I wondered, if this is justice, whose justice is it?"
Both young legal eagles have been left with a hunger for more such work. Ms Lim continues to take time off to assist AJA in Cambodia, thanks to "an understanding boss and team" at Drew and Napier; while Ms Sangeetha, who is taking the bar course, looks forward to interning at The Hague next year with the victims section of the International Criminal Court.