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Ethics & International Affairs
Annual Journal of the
Carnegie Council on Ethics and International Affairs
Will There Be a Trial for the Khmer Rouge?
By David Chandler
Between April l7, 1975, when its forces entered the Cambodian capital, Phnom Penh, and January 7, 1979, when they were driven out by a Vietnamese invasion, the Marxist-Leninist regime of Democratic Kampuchea (DK), sometimes known as the Khmer Rouge, presided over colossal crimes against humanity. In less than four years, some 1.3 million Cambodians met their deaths from malnutrition, overwork, and disease. Most of these deaths were traceable to the headlong revolutionary policies of DK. At least 300,000 others died in prison or were executed as enemies of the state. 1
The scale of what happened under the Khmer Rouge is difficult for survivors, lawmakers, activists, and scholars to deal with. A phrase like "crimes against humanity" is unequal to so much cruelty, so much indifference on the part of the perpetrators, and so many victims. The numbers of dead are so high as to be bleached of meaning. Interpretative concepts, useful for other disasters, are inadequate to the task. In this tumultuous context, where can justice be made to fit?
In Radical Evil on Trial, an absorbing study of judicial responses to human rights violations in Argentina in particular, the Argentinian jurist Carlos Nino quotes a passage from Hannah Arendt that locates some of the problems posed by phenomena like the Khmer Rouge and the challenge of bringing the surviving leaders of the movement to justice. What does "justice" mean, Arendt asks, in the face of so much horror? Should we begin with the presumption of innocence or the assumption of guilt? Are there such things as unforgivable crimes?
It is therefore quite significant . . . that men are unable to forgive what they cannot punish and . . . are unable to punish what has turned out to be unforgivable. This is the true hallmark of those offenses which, since Kant, we call "radical evil" and about whose nature so little is known. . . . All we know is that we can neither punish nor forgive such offenses and that they therefore transcend the realm of human affairs and the potentialities of human power. . . . Here, where the deed itself dispossesses us of all power, we can indeed only repeat with Jesus: "It were better for him that a millstone were hanged about his neck, and he cast into the sea." 2
"Radical evil," which baffled Immanuel Kant two centuries ago, is no easier to come to terms with in the year 2000, but we can keep the size and the horror of what happened in Cambodia under DK in focus if we use an overarching concept of this kind.
Even so, enormous gaps remain between what actually happened in the l970s and how precisely these events can be "objectively" reconstructed. Gaps also exist between events and how they are now remembered (or forgotten, altered, glossed over, exaggerated, or made up) by surviving perpetrators, victims, and bystanders alike. Another problem, intrinsic to any international tribunal, springs from the procedural baggage (to say nothing about notions of revenge, forgiveness, or equity) that outsiders, however well intentioned, will bring to such efforts at justice.
It has been almost twenty-five years since the Khmer Rouge came to power. Many of the perpetrators are dead or have disappeared from view. Although a good deal of valuable documentation about the regime became available in the late l990s, many people’s memories have begun to fade. Every year a trial of the Khmer Rouge leadership that will satisfy the victims, to say nothing of international opinion, becomes more difficult to achieve.
Why have so many years passed without any of the leaders being brought to justice? Aside from a show trial in Phnom Penh in l979, when two leaders of DK, Pol Pot and Ieng Sary, were sentenced to death in absentia, no Khmer Rouge figures have so far been put on trial for events between l975 and l979.
At the beginning of 2000, however, two prominent ex—Khmer Rouge figures are in custody in Phnom Penh awaiting trial. One of them, Ta Mok, was a high-ranking military commander in the DK era, responsible for the purges that swept through several DK administrative zones in l977 and 1978 and led to the deaths of tens of thousands of people. The other, Kang Kech Ieu (alias Duch), ran DK’s interrogation center for counterrevolutionaries in Phnom Penh, known by its code name S-21, where over l4,000 men, women, and children were incarcerated. Most of them were intensively interrogated and tortured. All but a half dozen of them were put to death. 3
The prime minister of DK, Pol Pot, "Brother Number One" to his subordinates, died in his bed on the Thai border in April l998, and another senior figure, Son Sen, who had once been third in the Khmer Rouge hierarchy, was murdered in l997. Several high-ranking figures remain more or less at large. Three of them have been granted amnesties by the Cambodian government. These are Nuon Chea, the second-highest-ranking official in DK; Ieng Sary, Pol Pot’s brother-in-law and DK’s minister of foreign affairs; and Khieu Samphan, who held several positions in DK, including the post of chief of state.
Ieng Sary defected to the ruling coalition in Phnom Penh in l996. He received an amnesty from the government and a royal pardon from King Norodom Sihanouk. Nuon Chea and Khieu Samphan surrendered to Phnom Penh authorities in December 1998 and were also granted an amnesty. At a press conference honoring the occasion, they apologized briefly, to no one in particular. Cambodian Prime Minister Hun Sen, a one-time member of the Khmer Rouge, then urged his countrymen to "dig a hole and bury the past." In a similar fashion Ieng Sary had previously told an interviewer for French television, enigmatically: "Honestly, in my heart the wound is healed." He failed to say whether the "wound" belonged to him, or to victims of DK. 4
International pressure for a trial, tribunal, or truth commission to deal with high-ranking DK figures has been growing since the collapse of the Khmer Rouge movement in l997 and 1998, but until very recently authorities in Phnom Penh led by Hun Sen have been reluctant to take action. An internationally constituted tribunal, they claim, would infringe on Cambodian sovereignty. Any trial or tribunal will almost certainly take place in Cambodia, using Cambodian judicial personnel and perhaps judges brought in from overseas. Throughout l999 these proposals were unacceptable to the international groups pressing for a trial, including the United Nations and Human Rights Watch, which asserted that the Cambodian judiciary is poorly trained, the tool of the ruling party, and incapable of dealing with a case as complex as one involving the Khmer Rouge. Another (unstated) objection to an open-ended, internationally supervised trial is that it might prove embarrassing to the regime and to foreign powers once allied to the Khmer Rouge. To complicate things further, Cambodian public opinion about a trial, and about justice tout court, appears to be divided and has always been difficult to gauge. It is impossible to say how many survivors of the regime feel better served by intensifying memory or forgetfulness.
At the beginning of 2000, the prospects for a judicial proceeding fully acceptable to the international community remain remote. In its place, a limited, locally managed judicial event involving Ta Mok, Duch, and possibly a few others will probably occur, perhaps as early as the twenty-fifth anniversary of the Khmer Rouge victory of April 17, 1975. Foreign participation will be confined to legal assistance, financial help (which has been tentatively offered by Japan), and a minority of judges on the bench.
In November 1999, Hun Sen declared that some sort of trial would occur, and authorities in Phnom Penh, for their part, were reportedly continuing to seek foreign assistance "in the drafting of a law to try former Khmer Rouge leaders and for help in a locally run trial." 5 A U.S. State Department proposal tabled at the time called for a five-judge panel, with three Khmer judges and two from overseas. The agreement of four judges would be required for a verdict. In other words, a decision to condemn or acquit would need the approval of at least one Cambodian judge. "I have agreed to this proposal," Hun Sen announced, in a characteristically belligerent statement. "So the trial for the Khmer Rouge is no longer a concern for us, for the United Nations, nor anybody else." He was satisfied that the proposed tribunal left his government, rather than foreigners, in charge of the outcome. In early January 2000, the Council of the Kingdom approved a draft law establishing a tribunal. The law drew heavily on the American proposal, and has drawn criticism from UN officials, who hoped to have greater international control over the proceedings and more UN participation. The new legislation also gives the Cambodians the final say in choosing international judges. The financing, staffing, procedures, and logistics of the trial remain in doubt, but it is likely that some kind of a judicial proceeding involving foreign and domestic judges will take place in Phnom Penh later this year. 6
A locally scripted proceeding with a handful of defendants–themselves defended by lawyers beholden to Hun Sen–will probably fail to satisfy foreign observers active in the area of human rights and would anger human rights groups within Cambodia pressing for a larger, open-ended trial. The proceeding that the government prefers would indeed leave many questions unanswered. On the other hand, it would almost certainly close down the Khmer Rouge issue, for the time being, to the government’s satisfaction. The trial itself will be used as an instrument with which to "dig a hole and bury the past," removing the Khmer Rouge from history and politics. Whether international pressure can be sustained or renewed if and when such a trial occurs is impossible to determine.
There are several reasons, none of them salutary from an ethical perspective, why the world has waited so long to indict the leaders of the Khmer Rouge and why Cambodian authorities were unwilling to proceed with a trial. Put another way, it is impossible to explain to newcomers to the Cambodian saga why so many important Khmer Rouge figures have remained unrepentantly at large for so long. The most plausible explanations have historical roots and can be traced to positions taken by the Phnom Penh regime and the international community starting twenty-one years ago, a few months after the Vietnamese invasion.
Phnom Penh, 1979: The Show Trial and Its Aftermath
A show trial for two Khmer Rouge leaders occurred in August 1979, in Phnom Penh, less than eight months after a new, Vietnamese-sponsored government, known as the Peoples’ Republic of Kampuchea, or PRK, had taken office. The trial labeled these two men, whose wives were sisters, a "genocidal clique." An anti-genocide decree law, drawn up a month before, provided the basis for the court’s deliberations. The two men were condemned to death in absentia by a panel of Cambodian judges and socialist judges flown in from overseas. Valuable testimony about the horrors of DK emerged at the trial, but the horrors were made to seem the work of two demented intellectuals without any Marxist-Leninist affiliations. Instead, they were called "fascists" and their "genocidal" activities were compared to Hitler’s. To hammer the point home, soon after the trial, the S-21 interrogation center was transformed into a Museum of Genocidal Crimes, with macabre exhibits modeled in part on those displayed in Nazi extermination camps in Eastern Europe. 7
The show trial failed to meet international standards. Cambodia had not yet formulated any laws except the decree law under which the culprits were being tried. It had no other courts. The criteria for selecting the prosecutors and judges were unclear, as were the rules governing the conduct of the trial. No attempt was made to demonstrate impartiality. The defense lawyer for Pol Pot and Ieng Sary, for example, called her clients "criminally insane monsters" and demanded that they be condemned to death. Once the trial was over, no further trials took place. A few men and women were incarcerated briefly and subjected to "reeducation," but no other Khmer Rouge figures were ever tried in open court for crimes committed between l975 and l979. 8
Obstacles to a Trial in the 1980s
Throughout the 1980s, the PRK staged annual "days of hate" when selected victims of the Khmer Rouge delivered speeches that condemned the defunct regime and demonized Pol Pot and Ieng Sary. In the process, the PRK helped to channel and construct collective memories consistent with their Manichean, politically useful readings of the past. Their reading of history was widely accepted. By the mid-1980s, as Michael Vickery and Naomi Roht-Arriazi have suggested, "all of the . . . survivors considered that they had been victims" in some fashion of the Khmer Rouge. 9
A dominant narrative of the Khmer Rouge era, with a handful of absent, demonic perpetrators and millions of innocent victims, was thereby locked into place and, as Catherine MacKinnon has remarked in another context, "Dominant narratives are not called stories. They are called reality." 10
The PRK was reluctant to pursue the Khmer Rouge issue much further in part because of higher priorities, such as reviving the economy and bringing smashed institutions back to life. Moreover, many members of the PRK hierarchy, including the foreign minister, Hun Sen, had willingly served in the ranks of the Khmer Rouge; Hun Sen defected from the movement, after ten years, in 1977. Some high-ranking PRK figures like Chea Sim had been in the Cambodian communist movement for over twenty years, and several had lingered inside it until a few months prior to DK’s demise. At that point, their loyalties altered. Having helped Vietnam to liberate Cambodia from its diabolical former rulers, after all, were these men to reclassify themselves as members of a "genocidal clique"? 11
Instead, former Khmer Rouge who stayed in Cambodia were considered to have abjured their affiliations and earned an informal amnesty. Many of them had gained valuable administrative and military experience under DK that was useful after 1979. They were accustomed to socialist discipline and a socialist agenda. Under the circumstances, it is easy to see why no process resembling "denazification" ever occurred in Cambodia.
Prosecutions of the Khmer Rouge by the PRK would have pleased many human rights activists outside Cambodia, along with Cambodian survivors enraged by what had happened to them and their families. Many survivors hoped for what Martha Minow has called "the deliberate, retributive use of governmentally administered punishment to vindicate the victim’s value." Steven Knapp makes a similar point when he writes that "the point of our desire to punish [such people] . . . is that punishing them is the only way to guarantee that they will experience the badness of the bad actions." The effect of the widespread amnesties under PRK, which were designed to bury the past, was of course exactly the reverse. 12
In the 1980s, several additional obstacles inside and outside Cambodia stood in the way of prosecuting the Khmer Rouge. Outside the country, precedents, laws, courts, and procedures to deal with crimes against humanity were almost nonexistent. The only internationally sanctioned forum for a full-scale trial in the 1980s was the International Court of Justice in The Hague. The court, for its part, had no experience in dealing with massive abuses of human rights. Moreover, because the United States, China, and their allies insisted on recognizing the credentials of the DK delegation to the United Nations and, later on, those of a coalition government in exile–the Coalition Government of Democratic Kampuchea (CGDK), dominated by the Khmer Rouge–the possibility of using UN machinery for a trial was precluded. In any case, before the early 1990s there was no UN machinery of this variety in place.
Inside Cambodia, the largest obstacle, perhaps, aside from those already mentioned, was the nation’s weak judicial system, which had been destroyed under the Khmer Rouge. The judiciary restored after 1979 was poorly regarded and poorly paid. No law codes were drafted for several years, "revolutionary justice" prevailed, and in any case respect for the rule of law had never figured prominently in Cambodian official thinking. When courts were reestablished in the mid-1980s, they lacked prestige, funding, independence, and well-trained personnel. These shortcomings were nothing new: they had characterized the Cambodian judiciary throughout its history. 13
Another obstacle for both the PRK and the international community was that it was almost impossible to apprehend the leaders of the Khmer Rouge. These men and women, along with thousands of their followers, were ensconced in heavily guarded camps in Thailand and in inaccessible parts of Cambodia. They enjoyed the Thai army’s protection and the patronage of China. The approaches to their enclaves were mined. It is inconceivable that the leaders would have given themselves up. To arrest them would have required unlikely political realignments, involving Thailand and China, and perhaps a major military operation.
As the Cold War came to a close, geopolitical considerations continued to work against the possibility of a wide-ranging trial. The United States, like China, was still obsessed with punishing Vietnam for its invasion of Cambodia; China resented Vietnam’s alliance with the USSR; and the United States was smarting from its defeat by Vietnam. Thailand, for its part, feared the expansion of Vietnam and was happy to go along with its patrons in Washington and Beijing. For all three nations, their enemy’s enemy became their friend. The evils of the DK era, and the thirst of many survivors for justice, were subordinated to Cold War thinking. 14
The Association of Southeast Asian Nations (ASEAN) followed Thailand’s lead as far as Cambodian issues were concerned. Cambodia was not yet a member of the forum and had no voice in its proceedings. An Australian proposal to the ASEAN foreign ministers’ meeting in 1986 that Pol Pot and his colleagues be tried by the International Court of Justice received a cool response. Efforts mounted by activists in the United States in the 1980s also failed to find nations that had appropriate anti-genocide legislation in place and were willing to act as sponsors for a trial. 15
In a climate of resentment, cynicism, and indifference, the opportunity to bring Pol Pot and his colleagues to justice slipped away. The decade when memories of the Khmer Rouge were freshest and the perpetrators easiest to identify passed without any action being taken. The squalid record of larger powers in these ten years vis-à-vis the Khmer Rouge, when the PRK army was fighting the Khmer Rouge on a daily basis, has been used with rhetorical effect by Hun Sen ever since.
The Changing Climate of the 1990s
In September 1989 the last Vietnamese troops left Cambodia. As the Cold War ended, two developments outside Cambodia helped to revive interest in a trial for the Khmer Rouge. The first was a deepening concern with human rights and human rights abuses in many countries, including the United States. The second was that a range of precedents and procedures were developed whereby nations could confront and deal with crimes against humanity perpetrated by previous, discredited regimes. The early 1990s saw a rapid increase in trials, tribunals, and truth commissions in Latin America, southern Africa, and Eastern Europe. The UN was involved in some of these proceedings. As Naomi Roht-Arriazi noted at the time: "It is now 1994 and the number of countries slowly and painfully coming to terms with their governments’ past treatment of its citizens has grown." 16
Roht-Arriazi was referring to a wide range of so-called transitional regimes, labeled by Diane Orentlicher as "fledgling democracies," which were emerging from periods of dictatorship and lawlessness. Although there were some cosmetic elements of transition in Cambodia in the 1990s, the phrase "fledgling democracy" seems inappropriate to the power holders in Phnom Penh. Since the mid-1980s when it gained a modicum of independence from Vietnam, the country has been governed willfully, with its power holders immune from accountability or punishment. Many of these figures, including Hun Sen, are former Khmer Rouge who have never expressed repentance or regret about the past. They have adjusted their memories in ways that many victims find impossible to do. "Then was then," they seem to be saying, "and now is now." For many victims of the Khmer Rouge, on the other hand, "then" recurs, traumatically, every day.
The State of Cambodia (SOC), which succeeded the PRK, retained the same people in command. It lasted from 1990 to 1992, during which time the UN was unwilling to press charges and larger powers either remained opposed to a trial, as did China, Thailand, and Vietnam, or, like the United States, showed little interest in one. To complicate things further, right up to the 1991 peace agreements in Paris, and for several years thereafter, the leaders of the Khmer Rouge and their formidable army remained on Cambodia’s borders, threatening the SOC.
The Paris Peace Accords, UNTAC, and After
The Paris Agreements on Cambodia in October 1991 were an ambitious and optimistic attempt to diminish foreign patronage for the warring Cambodian factions, to remove Cambodia from the endgame of the Cold War, and to allow the Cambodian factions, including the Khmer Rouge, to compete for governance inside the country. In the run-up to UN-sponsored elections, Cambodia would be in the hands of the multinational United Nations Transitional Authority for Cambodia (UNTAC). 17
Changes in Cambodia’s human rights climate introduced by UNTAC had far-reaching, positive effects. An energetic unit of UNTAC monitored human rights abuses, helped train local human rights workers, offered protection to emerging local human rights groups, and encouraged popular awareness of the rule of law. For the first time, the Cambodian government was subjected to internal pressure (as well as international "interference") on a range of human rights issues, including the problem of seeking a trial for the Khmer Rouge.
Soon after the UN-sponsored national elections in May 1993, which resulted in a coalition government formed by the Cambodian Peoples’ Party (CPP) and a royalist party known by its French acronym as FUNCINPEC, the UN established a human rights office in Phnom Penh, which offered protection to local human rights groups and programs for training human rights workers throughout the country. In 1997 a special representative of the UN secretary-general, Thomas Hammarberg of Sweden, arrived to take up a range of human rights concerns. During his two-year term of office, Hammarberg pressed vigorously for an internationally sponsored trial for the Khmer Rouge. 18
Faced with growing pressures, the Cambodian government, dominated by Hun Sen’s Cambodian Peoples’ Party, was still reluctant to push for a trial. Its coalition partner, FUNCINPEC, was also reluctant to institute proceedings against the Khmer Rouge, which had been their partner in the CGDK. Instead of proceeding with a trial, the coalition partners continued the PRK-SOC policy of granting amnesties to defectors. Hundreds of them were welcomed into the Cambodian army. The implosion of the Khmer Rouge, bereft by then of significant foreign support, had become a matter of time. 19
I n the mid-1990s, the Khmer Rouge leadership reinstated harsh, socialistic policies on their followers. Pol Pot and his colleagues hoped to rekindle the revolutionary fervor that they believed had swept them to victory in 1970. The new policies were unpopular and defectors continued to stream south and east into government-controlled portions of Cambodia. As one of them later told an interviewer:
After the [1993] elections, the leadership started talking about fighting "’til the end of the world," until the next generations. . . . There was no clear idea of how the war would end or what we were fighting for. Pol Pot and the others were very good at making theory in terms of the 10-point elements, the 8-this, the 6-that and all the rest of it, but when it came to the basic question of how to end the war they didn’t have an answer. 20
In the meantime, as pressures on the government for an international tribunal increased, Hun Sen’s responses, generally negative, varied in keeping with his perceptions of the power relations involved and the short-term political usefulness of some kind of trial. While resentful of foreign interference, Hun Sen realized that international assistance to Cambodia, and perhaps its admission to ASEAN, might be contingent on his record in the area of human rights. On several occasions, he jauntily displayed his anti-Khmer Rouge credentials, comparing them favorably to those of the powers who had aided the Khmer Rouge in the 1980s. He opposed an overseas venue for a trial, freely admitted that the Cambodian judiciary left much to be desired, and welcomed foreign financial and technical assistance. At the same time, he refused to allow the UN to take charge of the proceedings, or foreign judges to dominate them. What he described as an infringement of sovereignty was also a procedure that he would be unable to control. Whether he reached these positions on his own or was encouraged to an extent by foreign pressure, particularly from China, is impossible to determine.
The Crises of 1996 and 1997
A sequence of confusing events in 1996 and 1997 accelerated the collapse not only of the Khmer Rouge but also of the FUNCINPEC-CPP coalition. The crises were set in motion in August 1996, when Ieng Sary defected to the Phnom Penh government and received a royal pardon. Sary’s defection exposed a major split in the Khmer Rouge movement. He brought with him several thousand followers, camped in the prosperous area of Pailin in the northwest, who were hostile to Pol Pot and Ta Mok’s call for a renewed, impoverished form of socialism. Sary and his supporters, in exchange for their defection, were granted economic autonomy and allowed to remain in Pailin.
Over the next few months, Sary’s defection and the increasingly erratic conduct of the Khmer Rouge leaders sent shock waves through the remote bases that the movement still controlled. Defections continued. The leaders’ brand of socialism failed to take hold. In June l997 Son Sen, DK’s former military commander, fell out of favor. Pol Pot had him assassinated along with thirteen of his dependents. The brutality of the murders and the feeling that anyone might be next turned Pol Pot’s underlings against him. He was arrested, tried for "treason," and confined "for life" to a two-room hut. Ten months later, he was dead.
In Phnom Penh, meanwhile, Hun Sen tightened his grip. In June 1997, soon after Son Sen’s murder, FUNCINPEC officials were on the brink of concluding an agreement with Ta Mok whereby troops from his faction could be absorbed into units loyal to FUNCINPEC. To prevent the relatively powerless FUNCINPEC from talking to the Khmer Rouge, Hun Sen engineered a preemptive coup de force. More than fifty FUNCINPEC supporters were killed–many shot in the back of the neck after being arrested–amid widespread damage and looting in Phnom Penh. The coup drove most FUNCINPEC figures into exile and effectively ended the coalition. 21
Hun Sen’s timing was poor. The coup occurred just as ASEAN was preparing to admit Cambodia as a member, ending decades of isolation. Admission was postponed to avoid giving the impression that ASEAN approved of the coup. Several foreign donors suspended aid or chastised Hun Sen’s government for its behavior. Hun Sen’s reaction was to leave his followers unpunished while becoming slightly more amenable to pressures to demonstrate his commitment to human rights. In the aftermath of the coup, a trial of the Khmer Rouge, conducted with foreign approval but on Hun Sen’s terms, became a little more likely.
Shortly before the coup, ironically, the coalition government had requested assistance from the UN in "bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge." The request was probably a tactical one, intended to put pressure on the movement’s Thai supporters. At the time it was written, no senior Khmer Rouge figures aside from Ieng Sary had yet defected and Pol Pot was still alive. 22
In March 1998, a month before Pol Pot’s death, another senior Khmer Rouge figure, Ke Pauk, defected to the government and was welcomed into the Cambodian army. Three months later, the CPP won a majority of seats in an internationally monitored national election. The stage was now set for Cambodia’s admission into ASEAN. Approval from powers pressing for a trial became less important, and Hun Sen began to back away from earlier statements supporting foreign participation in a judicial proceeding.
In response to the Cambodian government’s 1997 request, a UN Commission of Inquiry into the crimes of the Khmer Rouge was formed under the leadership of Sir Ninian Stephen, the former governor general of Australia. Sir Ninian and his colleagues visited Cambodia in November l998 to collect evidence, and his team prepared a detailed report, submitted in February l999, suggesting that the leaders of the Khmer Rouge could indeed be indicted under international law for crimes against humanity. The report also hinted that Cambodian courts might be inadequate to the task, and proposed the formation of an ad hoc international tribunal. Negotiations between UN representatives and Hun Sen’s government continued, fruitlessly, for the remainder of 1999, while the prospects of a repeat of the l979 show trial, this time involving Ta Mok and Duch, became increasingly likely. The logjam was broken to an extent by the American proposal in October 1999 for a five-judge panel that would include two non-Khmer judges. Critics of the proposal, and of the December 1999 draft legislation establishing a tribunal, speaking from a UN perspective in some cases, commented that Hun Sen’s government, which controlled the Cambodian judiciary, could probably be assured that the tribunal would reach an acceptable, if not a preordained, conclusion.
The months to come will be taken up with maneuvering to determine who the judges will be, who will pay for the proceedings, what role the international community will play, and who will be put on trial.
Conclusion: Radical Evil on Trial
At the beginning of 2000, the enormity of what happened in Cambodia under the Khmer Rouge in the 1970s needs to be set against two unpalatable alternatives. Either a handful of Khmer Rouge figures will be tried by a quasi-national, quasi-kangaroo tribunal, as seems likely, or the same figures will receive a sweeping amnesty without a trial’s taking place. The collapse of the Khmer Rouge as a political threat (and, in Marxian terms, as a historical force) may water down any trial that does take place and open up the possibility of acquittals, deadlock, or amnesty following the submission of evidence. There is very little chance that more than half a dozen figures will be tried, in spite or perhaps because of UN suggestions that an internationally supervised trial could indict between twenty and thirty alleged offenders.
Three of the most important Khmer Rouge leaders–Ieng Sary, Nuon Chea, and Khieu Samphan–may be called as witnesses, but unless the amnesties affecting them are lifted, as seems unlikely, they may never appear in court in their own defense. In the same fashion, many figures in the Cambodian army and the upper reaches of the government who served in the ranks of the Khmer Rouge, in some cases well into the 1980s, will escape judicial attention. Those who will be tried, including Ta Mok, Duch, and perhaps a handful of others, will be people who have been unable to secure protection from those in power.
The conceivable middle ground between amnesties and a rush to judgment, namely an open-ended, inclusive, and internationally acceptable proceeding from which the outcomes might be retribution, a clearer narrative of the past, and some sort of far-reaching reconciliation, seems to be permanently out of reach.
In sharp contrast with South Africa, the political will for an extensive settlement is lacking, and so are the Judeo-Christian notions of forgiveness, voiced so eloquently by Archbishop Desmond Tutu, that suffused the South African proceedings.
In contrast to Argentina, the sophisticated legal system necessary to support a wide-ranging procedure does not exist. Although Cambodia was given its judicial system by France in the colonial era, Western ideas of justice have not had much chance to flourish, and Cambodia's judicial personnel throughout history have tended to be concerned with protecting those in power and punishing their foes. There is no presumption of innocence built into the system, either. In this regard, it is worth remembering that the Cambodian phrase we translate as "prisoner," neak thos, means "guilty person."
In contrast to Rwanda, it is inconceivable that those in power in Phnom Penh will surrender as much sovereignty as the Rwandan government has done to an international body.
The Nuremberg precedent, often cited because of the number of deaths involved under the Khmer Rouge, is not especially useful, partly because the Khmer Rouge, unlike the Nazis, were never defeated decisively by ideologically antithetical foreign forces and partly because, again unlike the Nazis, the Khmer Rouge were able to attract powerful foreign patrons for many years after being driven from power.
The regimes in Cambodia since 1979 have all contained perpetrators and bystanders from the Khmer Rouge era who are unwilling to bring themselves to justice. Many of those in power, instead, consider themselves to be the movement's victims. For these people, a truth commission involving a dialogue between perpetrators and victims and offering some sort of redemption, in exchange for statements of regret, runs counter to their interests and instincts.
Perhaps genuine, full-scale reconciliation in the face of so much evil, ambiguity, and amnesia is an unattainable goal, and perhaps, as Hannah Arendt suggests, no trial can ever deliver sufficient retribution to the victims for what has happened. There are legal problems to be considered as well. In trying to insert Western-style jurisprudence and the rule of law into Cambodia, which is unfamiliar with both, it is worth questioning the appropriateness of beginning with a proceeding where innocence will not be presumed and from which several people, thought by many to be equally or even more guilty, are immune from scrutiny. On the other hand, a trial of even a handful of Khmer Rouge may be seen by many Cambodians as setting a healthy precedent and may also suggest that the government, for all its rhetoric, is willing to confront at least a fragment of Cambodia's horrific recent past.
Nonetheless, with a quasi-kangaroo court, a more respected procedure, or amnesties, those in power will have dug a hole in which they will bury Cambodia's past. Whatever happens, the ghosts of the Khmer Rouge era will continue to haunt Cambodian survivors, and seemingly intractable continuities with Cambodia's past—wherein the powerful go unpunished and history can easily be ignored—will continue to distress men and women of good will concerned with Cambodian affairs. 23
Endnotes
* I am grateful to Sara Colm, Craig Etcheson, and Steve Heder for providing valuable documentation for this essay.Back.
Note 1: On deaths in DK, see Patrick Heuveline, "Between One and Three Million: Towards the Demographic Reconstruction of a Decade of Cambodian History (1970-1979)," Population Studies 53 (1998), pp. 46-65. The best overall accounts of the period are still François Ponchaud, Cambodia: Year Zero (New York: Henry Holt, 1977); and Elizabeth Becker, When the War Was Over (New York: Simon and Schuster, 1986). Back.
Note 2: Carlos Nino, Radical Evil on Trial (New Haven: Yale University Press, 1996), p. 135. The passage is from Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), p. 241.Back.
Note 3: On S-21, see David Chandler, Voices from S-21: Terror and History in Pol Pot's Secret Prison (Berkeley and Los Angeles: University of California Press, l999). Duch, a born-again Christian, was arrested in l999, after vanishing from sight for over a decade. Ta Mok, apparently unrepentant, was turned over to Cambodian authorities by the Thai in l999.Back.
Note 4: For a bitter critique of the December 1998 amnesties, see Brad Adams, "Snatching Defeat from the Jaws of Victory," Phnom Penh Post, January 22-February 4, 1999. For Ieng Sary's remarks, see Phnom Penh Post, August 20-September 2, 1999. Back.
Note 5: See Annette Marcher, "Hammarberg: Impunity Cambodia's Problem," Phnom Penh Post, October 29-November 11, 1999; Annette Marcher, "Go It Alone Tribunal Seeks Foreign Gloss," Phnom Penh Post, October 1-14, 1999; Annette Marcher, "National KR Tribunal Takes Shape," Phnom Penh Post, November 26-December 9, 1999. See also Jason Burke, "Butcher of Cambodia Set to Expose Thatcher's Role," The Observer (London), January 9, 2000.Back.
Note 6: See Annette Marcher and Yin Soeum, "Govt [sic] to Wrap Up Tight Trial Law," Phnom Penh Post, December 24, 1999-January 6, 2000; and Associated Press (Phnom Penh), "Hun Sen Endorses US Proposal," October 19, 1999. On Hun Sen's subsequent outburst, see Reuters (Phnom Penh), "Cambodia PM Lashes Foreign Demands on Rouge Trial," November 18, 1999. Back.
Note 7: On the show trial, see Vietnam Courier, ed., Kampuchea Dossier III: The Dark Years (Hanoi: Foreign Languages Press, 1979). Gareth Porter's Vietnam: The Politics of a Bureaucratic System (Ithaca: Cornell University Press, 1993) points out that defense counsels were abolished in Vietnam in 1975, and were replaced by a court-appointed "socialist pleader . . . who was not expected to present a legal defense on behalf of [his] client" (p. 172). On S-21's metamorphosis into a museum, see Chandler, Voices from S-21, chap. 1; and Judy Ledgerwood, "The Cambodian Tuol Sleng Museum of Genocidal Crimes: National Narrative," Museum Anthropology 21 (Spring/Summer 1997), pp. 83-98.Back.
Note 8: Mark Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, N.J.: Transaction Press, 1997), p. 297, deplores what he calls a "slam dunk" verdict of the kind reached at the show trial. The S-21 guard Him Huy, who admitted taking part in the execution of prisoners there, was imprisoned in 1980, and mentioned that "several" other former employees at S-21 had been jailed for a time (author's interview, January 1998).Back.
Note 9: Michael Vickery and Naomi Roht-Arriazi, "Human Rights in Cambodia," in Naomi Roht-Arriazi, ed., Impunity and Human Rights in International Law and Practice (New York: Oxford University Press, 1995), pp. 243-51. On PRK historiography, see Ledgerwood, "The Tuol Sleng Museum"; and Viviane Frings, "Rewriting Cambodian History To 'Adapt' It to a New Political Context: The KPRP's Historiography," Modern Asian Studies (1997), pp. 807-46. Back.
Note 10: Catherine MacKinnon, "Law's Stories as Reality and Politics," in Peter Brooks and Paul Gewertz, eds., Law's Stories: Narrative and Rhetoric in Law (Cambridge: Harvard University Press, 1996), p. 245.Back.
Note 11: An interesting historical parallel would be the heroic status afforded to late-blooming resistants in France in 1944, to say nothing of the kindly treatment meted out to many former Vichy officials. See Paul Thibault, "La culpabilit&eccute; française," Esprit 24 (January 1991), pp. 22-31; and Robert O. Paxton, "The Trial of Maurice Papon," New York Review of Books (December 16, 1999).Back.
Note 12: Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, Beacon Press, 1998), p. 151 n. 14. On problems caused by the continuities between regimes, see pp. 134-35. Steven Knapp, "Collective Memory and the Actual Past," Representations 26 (Spring 1989), pp. 123-50. See also Margaret Popkin and Nehal Bhuta, "Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?" Ethics and International Affairs 13 (1999), pp. 99-122.Back.
Note 13: See Marcher, "Hammarberg: Impunity Cambodia's Problem"; and Beth Moorthy, "Govt [sic] Balks at UN Rights Inquiry," Phnom Penh Post, April 30-May 14, 1999.Back.
Note 14: For a skillfully organized survey of U.S. official thinking about the Khmer Rouge, see Jamie Frederick Metzl, Western Responses to Human Rights Abuses in Cambodia, 1975-1980 (London: Macmillan, 1996). Ironically, hundreds of thousands of victims of the Khmer Rouge, taking refuge in Thailand, soon found themselves "allied" with the Khmer Rouge. Back.
Note 15: On efforts to bring the Khmer Rouge to justice in this period, see Vickery and Roht-Arriazi, "Human Rights in Cambodia"; David Hawk, "International Law and the Cambodian Genocide: The Sounds of Silence," Human Rights Quarterly 11 (1989), pp. 82-138; and Ben Kiernan, "Cambodian Genocide," Far Eastern Economic Review, March 1, 1990.Back.
Note 16: Roht-Arriazi, Impunity and Human Rights, p. 3. See also Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal (l991), pp. 2537-615; and Nino, Radical Evil on Trial. Orentlicher argues forcefully for across-the-board action and concern, while Nino makes a case for a more cautious, contextualized approach to dealing with past wrongs. A recent, eloquent survivor's tale, suffused with recurrent memories, is Chanrithy Him, When Broken Glass Floats (New York: W. W. Norton, 2000).Back.
Note 17: On the UNTAC period, see Trevor Findlay, Cambodia: The Legacy and Lessons of UNTAC (New York: Oxford University Press, 1995). On the inclusion of the Khmer Rouge, see Ben Kiernan, "The Inclusion of the Khmer Rouge in the Cambodian Peace Process: Causes and Consequences," in Ben Kiernan, ed., Genocide and Democracy in Cambodia (New Haven: Yale University Southeast Asian Studies, Monograph 41, 1993), pp. 192-272.Back.
Note 18: Hammarberg summarized what he had been able and unable to accomplish in an interview with the Phnom Penh Post in November 1999. See note 5, above. The UN unit has recently moved away from monitoring human rights abuses and has concentrated more on training.Back.
Note 19: Prince Norodom Rannaridh, the head of FUNCINPEC, was for many years a professor of international law in France. He has never put his expertise to use either in pleading for a trial for the Khmer Rouge or, closer to home, in spearheading reform in Cambodia's almost dysfunctional judicial system.Back.
Note 20: David Ashley's interview with a Khmer Rouge defector in 1996, quoted in David Chandler, Brother Number One: A Political Biography of Pol Pot (Boulder: Westview Press, 1999), p. 179. See also David W. Ashley, "The Failure of Conflict Resolution in Cambodia: Causes and Lessons," in Frederick Z. Brown and David G. Timberman, eds., Cambodia and the International Community: The Quest for Peace, Development and Democracy (New York: Asia Society, 1998), pp. 49-78, for an astute analysis.Back.
Note 21: On the coup, see Jason Barber, "Democracy from the Barrel of a Gun," Phnom Penh Post, July 12-24, 1997; and David Chandler, "Democracy in Cambodia: Return to Sender, Not at This Address," Asian Studies Review 21 (November 1997), pp. 31-38.Back.
Note 22: Quoted in Annette Marcher and Peter Sainsbury, "UN Seen Softening on Trial for Khmer Rouge," Phnom Penh Post, September 3-16, 1999.Back.
Note 23: The preceding paragraphs benefit from my conversations with David Crocker and from a reading of his excellent essay "Reckoning with Past Wrongs: A Normative Framework," Ethics & International Affairs 13 (1999), pp. 43-64. Back.