At the age of 87, lying in a Phnom Penh hospital bed surrounded by his children and with a phalanx of security guards posted outside, former Khmer Rouge foreign minister Ieng Sary died yesterday morning.
The long-ailing tribunal defendant had been hospitalised since March 4 with gastro-intestinal problems that eventually rendered him immobile and unresponsive, and largely prevented him eating or drinking.
Sary passed away at about 8:45am from heart failure. As per the internal rules of the Khmer Rouge tribunal – where Sary was standing trial on genocide and crimes against humanity charges – the prosecutors were responsible for determining the cause of death and for extinguishing the charges.
“The case is over for at least him. I know victims and civil parties will be disappointed, but as far, at least, as Ieng Sary is concerned, he’s no longer in [Case] 002. There won’t be a trial, there won’t be any more evidence that he needs to confront,” defence counsel Michael Karnavas told reporters outside the Khmer-Soviet Friendship Hospital yesterday.
Within hours of his death, Sary’s body was remanded into the custody of his family, who escorted it to Banteay Meanchey province’s Malai district yesterday evening. A funeral will be held in the former Khmer Rouge stronghold next week, said Sary’s son and Pailin’s deputy governor, Ieng Vuth.
The death came as the UN-backed court has been reeling from a decision by its highest body to strike an order that had divided the case against Sary and his co-accused into multiple sub-trials – a measure that was initially taken to ensure that at least some verdicts could be handed down before the ageing defendants died.
One of the four defendants, Sary’s wife, Ieng Thirith, has already been declared unfit to stand trial due to dementia. Yesterday afternoon, the Trial Chamber formally terminated proceedings against Sary, leaving just two defendants - Brother No. 2 Nuon Chea and head of state Khieu Samphan – remaining to account for one of the gravest crimes to have ever taken place.
Though the death of the chronically ill defendant was far from unexpected, observers, lawyers and victims alike said yesterday it demonstrated the urgent need for an expeditious trial and suggested the court had monumentally failed with its inability to conduct one.
“We knew that all those Khmer Rouge defendants are ageing and sick, so we always asked the court to speed up the case before they died, now Ieng Sary has died without saying anything about the regime,” said S-21 survivor Chum Mey, director of the Victims Association of Democratic Kampuchea.
“At the moment, I don’t have any hope of getting justice. Nuon Chea is also old and sick, and I’m afraid that he might have the same fate as Ieng Sary. We are waiting to see the next steps of the court. It was meant to be a model court, but I’m afraid that it will become a court that just models injustice.”
Concerns that the court’s octogenarian defendants would not live to see a verdict rendered have plagued it from the start. Some two million people are believed to have perished between 1975 and 1979, when the regime sought to install a Maoist, agrarian society. But establishing a tribunal took decades and, since the current case against the regime’s top living leaders began in late 2011, it has moved in fits and starts.
“Since well before the court began its administrative work in 2006, it has been clear from extensive public documents that Ieng Sary would be a target for prosecution. The fact the court was unable to complete the preliminary investigation, judicial investigation and trial by early 2013 is a travesty,” said Open Society Justice Initiative tribunal monitor Heather Ryan.
“Ieng Sary’s death at this point in the trial of Case 002 is certainly a blow to the court. It is an example of ‘justice delayed is justice denied.’”
The death comes at a particularly troubling moment for the hybrid court, which is facing severe budget woes, and near-constant allegations of interference and mismanagement. On March 4, the same day Sary was hospitalised for his latest ailments, more than 30 national staffers went on strike over months of unpaid wages.
Though the strike quietly ended yesterday, it – coupled with Ieng Sary’s health – had indefinitely stalled hearings in a case that many felt had dragged unnecessarily.
Over the course of the 16 months since Case 002 began, there have been just 150 days of hearings held – a schedule slowed even further in October when the Trial Chamber scaled hearings back to three days a week for the remainder of the year, citing staffing constraints. Only 15 days of hearings have been held in all of 2013.
“I hope [Ieng Sary’s death] is really a reminder that this criminal trial should proceed more efficiently, so we can conclude this chapter,” said Yeng Virak, director of the Community Legal Education Center, who noted that the problems faced by the court had been myriad, not limited to the most recent health scares.
“There have been problems here and there throughout – sometimes problems of administration, sometimes of money, sometimes political, sometimes technical – all of these have slowed it down. It’s sad to see this. It really makes us concerned about the effect of the ECCC in general.”
Balancing the rights of the aged defendants with the more visceral demands of the public, and the government, has proven a delicate balancing act.
In Sary’s case, the defendant was frequently too ill to follow proceedings during his final months, his lawyers argued repeatedly, but judges appeared increasingly loathe to allow him to waive his right to attend. Instead, the Trial Chamber insisted Sary follow proceedings from a specially outfitted holding cell containing an A/V hook-up, but also a bed, and where, according to his lawyers, Sary frequently simply fell asleep.
“We think it was more or less a charade to pretend he was able to participate in his holding cell, and we think that he was highly inconvenienced. And I think this exacerbated his state of health. Now at least he can rest in peace,” Karnavas said yesterday.
Speaking at an ECCC press conference held at the hospital yesterday afternoon, prosecutors sought to distance the unfortunate realities of a trial held three decades after the crime from its prospects for delivering justice.
“We can’t turn back the hands of time and make these accused young again so they avoid death by natural cause, but what we can do is pursue people that have been alleged to commit these crimes – until we can’t – in a fair and just manner,” said international co-prosecutor Bill Smith. “That’s the legacy of this trial. The court will not and should not stop until a full accounting is made.”
But for many, Sary’s death has all but undermined that possibility.
“[The UN and the government] made a promise, they entered into an agreement, they promised survivors, they promised the world . . . The death of Ieng Sary shows that a promise has been broken,” said Documentation Center of Cambodia director Youk Chhang.
“You can imagine that when he was arrested by the court, even the people on the street applauded, they had so much confidence in the court that even people like him who were protected by the government could be arrested,” he said. “But for many survivors, they also want to see judgment. For them, his death is not a victory, it’s disappointment and it’s anger.”
A chance at justice lost with death of Sary
Sok Malay, 53, who lost four brothers and sisters during the Khmer Rouge regime
I think Cambodians have not received justice, including my four younger brothers and sisters who died.
He has passed away while the court is trying to find justice for Cambodians. But what can we do? He was old.
Pal Pheap, 51, trader
He died with the title: Killer of his fellow Cambodians.
He may have passed away, but every person still bears his dirty name in their mind.
Tam Khem En, 60, who lost six family members during the Khmer Rouge regime
He was an instrumental leader with blood on his hands for his role in the conspiracy to kill all Cambodians during the regime he controlled.
In death, he takes with him the chance for Cambodian people who have waited years for his trial to receive justice.
Leang Khen, 76, who lost three children during the Khmer Rouge regime
He killed many people, and now he has died of old age. His life is a lesson to do good deeds to as many people as possible.
When you die, die with honour like the King Father. Don’t die like Pol Pot.
I still feel pain in my heart when it comes to Pol Pot, Ieng Sary and Khieu Samphan.
Tin Touch, 56, street vendor
The death of Ieng Sary is a warning sign to the Khmer Rouge trial that the ECCC must speed up this trial because others accused of leading the killing regime are growing old.
I’m afraid the ECCC is useless in terms of finding justice for Cambodian people.
ADDITIONAL REPORTING BY KIM YUTHANA AND JOE FREEMAN