The Agreement establishing the Extraordinary Chambers in the Courts of Cambodia obligates the Tribunal to “bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes” of the Khmer Rouge era. Accordingly, the Tribunal is to focus its prosecutions on two sets of defendants: senior leaders and those deemed “most responsible” for international crimes.  At the moment, the Tribunal has five suspects in custody, four of whom fall within the first category. These four—Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith—represent the only surviving members of the “Standing Committee” of the Cambodian Communist Party (the CPK) and Pol Pot’s most intimate inner circle. The fifth defendant, Khang Khek Ieu, a.k.a. Duch, while not high within the CPK hierarchy, satisfies the second criterion. The evidence against him, including his own admissions, suggest that he qualifies as one most responsible for international crimes in light of his role overseeing the torture and execution machinery of S-21—just one prison among many around the country that was established to interrogate and then dispose of perceived enemies of the revolution. After a flurry of activity bringing these five defendants into custody, no additional defendants have been identified as yet.

This is unfortunate. The international community has already made a huge investment—in resources, personnel, logistical support, technical expertise, etc.—in the Extraordinary Chambers to ensure accountability for the crimes of the Khmer Rouge era. It would be a shame if this investment yielded only five prosecutions.

Indeed, were the Extraordinary Chambers to limit their consideration to these five suspects, they would paint an inaccurate and stilted picture of the way in which crimes were committed under the Khmer Rouge. Crimes of a massive and systematic nature require the participation of many individuals at multiple levels of responsibility. While the Standing Committee may have devised the draconian policies that so characterized the Khmer Rouge, it was middle-level functionaries, like Duch, who were responsible for their implementation.  Indeed, academic research suggests that Khmer Rouge cadre were given considerable discretion to implement the sometime cryptic directives emanating from the Standing Committee.  So, some provinces and villages suffered more than others. Presenting evidence of the full range of responsibility within the criminal apparatus of the Khmer Rouge will ensure that the Cambodian people have a fuller understanding of the patterns of obedience and violence during that fateful time. This will ensure that the Extraordinary Chambers contribute to the development of a shared national history that will hinder efforts by some to deny, or simply bury, the past.

In light of these considerations, the Tribunal’s Co-Prosecutors should proceed against other individuals in the class of Duch: individuals who may have committed particularly brutal crimes in their local communities. The limited scope of the Tribunal should not be employed as an excuse to pursue an incomplete accountability; rather, prosecutions should proceed where they are justified by the available evidence.  The two-tiered structure of the Extraordinary Chambers—which places investigative authority first in the Co-Prosecutors and next in the Co-Investigative Judges—will ensure that only those charges that are fully warranted by the evidence will go forward to trial. It is only where criminal proceedings are evenhanded and comprehensive that they will be considered credible. It is only where criminal proceedings are considered credible that they will be able to contribute to a genuine and meaningful reconciliation within Cambodian society. Because no alternative transitional justice mechanisms are contemplated for Cambodia, the Extraordinary Chambers offer the only chance to bring to light a full and incontrovertible truth of why and how the Khmer Rouge committed the crimes that they committed. After all they have suffered, Cambodians deserve nothing less.