Reed Brody is Advocacy Director of Human Rights Watch. As
Director of the International Human Rights Law Group (1992-94), he initiated its
programs in Cambodia. Here he explains why an international tribunal is a necessity
The capture of Khmer Rouge military chief Ta Mok and the surrender of Khieu Samphan,
Nuon Chea and Ieng Sary has created the real possibility of holding those leaders
accountable for atrocities committed under their rule.
Human Rights Watch has joined with its Cambodian colleagues as well as the UN Group
of Experts in calling for the establishment of an independent tribunal, under UN
auspices, to try senior leaders of the KR responsible for crimes against humanity
committed from 1975-79.
The UN Group of Experts has proposed that such a tribunal be created to try those
responsible for the most serious abuses during KR rule. The experts have suggested
that the tribunal establish its office in a country near Cambodia and arrange for
the proceedings to be broadcast in Cambodia by radio and television.
Other voices have objected that the crimes of the KR are an "internal"
matter for Cambodia and therefore no business of the international community, that
a "Truth Commission" would serve Cambodia better than trials, that trials
of KR leaders run the risk of destabilizing Cambodia, that any trials should be held
before Cambodian courts, and that the inquiry should not be limited to the 1975-79
period but must include all grave crimes committed in Cambodia.
Some of these arguments can be disposed of easily, while others deserve serious attention.
Are these crimes an "internal" matter?
In December 1998, former UN Secretary-General Boutros Boutros-Ghali made the remarkable,
but simply outdated assertion that dealing with the KR is an "internal problem"
While national sovereignty is an important principle, it is not absolute, as even
Boutros-Ghali recognized when he was in office. The UN Charter prohibits intervention
in matters which are "essentially within the domestic jurisdiction of states."
The 1993 UN World Conference on Human Rights in Vienna took note of a well-established
rule, however, when it reaffirmed that "the promotion and protection of all
human rights is a legitimate concern of the international community."
Indeed, the UN Commission on Human Rights regularly undertakes investigations in
countries ranging from Cambodia to the US (which was recently criticized by a UN
envoy for its arbitrary application of the death penalty).
No serious argument can be made today, as it once was, that internal human rights
are within the domestic jurisdiction of any state and hence insulated from international
This is particularly true where "crimes against humanity" such as systematic
or widespread killings are concerned, for these crimes are precisely considered to
violate the rights of all of humanity.
While sovereign nations have the first duty to pursue justice, the
international community has a legitimate interest to intervene when fair trials cannot
be assured or when justice will be incomplete.
Having launched a peace process that paid inadequate attention to the problem of
justice, Boutros-Ghali should not compound the problem by trying to stand in the
way of the process of justice today.
Would a "Truth Commission" be more appropriate?
The Cambodian people suffered terribly at the hands of the KR. The sight of their
tormentors receiving amnesties and even V.I.P. treatment can only have increased
their sense of frustration and powerlessness.
Prosecutions would provide official recognition of the suffering of the Cambodian
people and help reverse the perception of the hypocrisy of the international community,
which largely remained silent during and after the KR rule.
Truth Commissions have generally been employed as a compromise in situations in which
such justice was not a viable alternative because those who committed heinous crimes
imposed or insisted on an amnesty as a condition of relinquishing power.
Indeed, until recently, it seemed that if you killed one person, you went to jail,
but if you murdered thousands of people, you were also able to bargain for your immunity
or amnesty, and so you got away with it.
Thus in Chile, Gen. Augusto Pinochet granted his own murderous regime amnesty and
insisted that this be respected as a condition of allowing democracy to return; he
faces justice today only because Spain and Britain have refused to recognize that
amnesty imposed under a gun.
In South Africa, the apartheid regime also insisted on amnesty as a condition of
giving up power.
Truth Commissions in Chile and South Africa became one of the few alternatives. But
truth is not a substitute for the healing of wounds that can only come when justice
is done. Indeed, experience in countries like Haiti shows that truth without justice
is bitter and can fuel resentment.
Fortunately, in Cambodia, as in Rwanda or Bosnia, there is no need for such a compromise.
The Khmer Rouge have been defeated militarily and no longer have the power to ensure
A Truth Commission could provide an authoritative historical account of the nation's
suffering, even of events that are already generally known. The recent report of
the Guatemala truth commission did this eloquently.
In addition, because any form of justice will only address the top killers, a truth
commission may still be needed to establish some form of accountability for the many
other ranking operatives in the slaughter.
This would still require, however, that the Commission be independent and impartial
and have the confidence of all sectors of Cambodian society.
There is little reason to think that ordinary Cambodians would participate in or
trust a Truth Commission run by the government in a climate in which impunity for
serious human rights violations persists.
Would trials destabilize Cambodia?
Destabilization or a possible return to civil war is a very serious concern of many
Cambodians and cannot be dismissed.
However, our experience is that governments routinely exaggerate this possibility
in order to escape their admittedly unpleasant duty to bring perpetrators of grave
abuses to justice. In present-day Cambodia, the ability of the KR to destabilize
Cambodia is, fortunately, remote. The KR are a spent force, unable to restart a war
and lacking foreign backers.
The problem will not be full-out war but possibly the delayed integration of Pailin
into Cambodia and perhaps small-scale violence if and when arrests of individual
Khmer Rouge leaders are carried out.
The government should not allow the justice process to be held hostage to threats
of violence, however, but reassure the de facto leaders in Pailin who are too young
to face charges that they will not be pulled into the proceedings so that they will
not oppose the justice process.
We agree with the Group of Experts that recommendations for bringing KR leaders to
justice must proceed from the starting point of the views of the Cambodian people
and their government, noting that it was the Cambodian government that requested
international assistance in 1997 to bring KR leaders to justice for crimes committed
Normally, we believe the right to forego the prosecution of criminals belongs to
the victims, not to society at large. In Cambodia, however, unlike, say, in Chile,
it was virtually the entire society that was victimized. We thus support the efforts
of local human rights organizations who are endeavoring to gauge popular support
for an international tribunal by gathering signatures on petitions.
Should trials be held before Cambodian Courts?
Ideally, yes. As a practical matter, no. Those responsible for atrocities are best
prosecuted by their national authorities.
Local prosecution can serve as an acknowledgment of the wrongfulness of an accused's
crimes. The proximity of justice would enhance its meaning to the Cambodian people
and in the process could strengthen the Cambodian judicial system.
We must face reality, however. In June 1997, Norodom Ranariddh and Hun Sen requested
assistance from the UN in bringing the KR to justice, stating in a letter to the
Secretary General, that "Cambodia does not have the resources or expertise to
conduct this very important procedure." The situation is not that changed today.
Even with international assistance, the Cambodian judiciary is not yet capable of
offering the fairness and transparency necessary to conduct trials of this sensitivity
The system is still plagued by an absence of judicial independence , as well as poorly
trained and low-paid judicial staff, lack of resources, and fear of judges to prosecute
military, police, gendarmerie, or any other armed and powerful offenders.
Key institutions, such as the Supreme Council of Magistracy, which oversees the judiciary,
and the Constitutional Council are clearly partisan and have little credibility;
most of their members are affiliated with the Cambodian People's Party. Hosting a
trial in Cambodia would subject it to undue political pressure.
In a statement released last week, the Cambodian Bar Association called for an international
tribunal, acknowledging that the Cambodian courts are biased and corrupt.
Similarly, the UN experts found that the Cambodian court system lacked three main
criteria for a fair and independent judiciary: a trained cadre of judges, lawyers,
and investigators; adequate infrastructure; and a culture of respect for due process.
They pointed out that justice must not only be done, but seen to be done, and that
in the current political climate few Cambodians would accept the results of proceedings
conducted within the domestic court system.
Last week, Hun Sen rejected an international tribunal but signaled his willingness
to accept international assistance for a trial in Cambodia.
We hope that he will reconsider, and urge the international community to press him
to do so.
Should trials be limited to the 1975-79 period?
Hun Sen has said that he might want to broaden the scope of a war crimes investigation
to include everyone who supported the KR or committed aggression against Cambodia
from 1970 to 1998. This would of course expand the inquiry to include US policymakers
such as Henry Kissinger and senior Pentagon officials who organized the massive bombing
of the country and the overthrow of Sihanouk which led to the KR rule, as well as
those people who backed the KR-led coalition after its ouster.
There is no question that if foreign officials can be directly linked to the execution
of war crimes or crimes against humanity in Cambodia, they too should be held accountable,
whether they are American, Chinese or other nationalities. As we stand on the verge
of bringing the KR to justice, however, it seems disingenuous to hold such trials
hostage to the much more complex issue of international responsibility.
For two years, since Hun Sen himself sought UN assistance in bringing to justice
those who committed genocide or crimes against humanity "from 1975 to 1979,"
this time period has been the focus.
At the same time, we need to acknowledge the hypocrisy of the international community,
including the United States, which largely remained silent during and after the KR
rule and then allowed the KR to participate on equal footing in the 1991 peace process.
Under the peace agreement, the atrocities of the KR were euphemistically referred
to only as "policies and practices of the past". Khieu Samphan and Son
Sen sat in Supreme National Council meetings in Phnom Penh along with Akashi, Ranariddh,
Son Sann and Hun Sen and no one suggested arresting them then.
An international tribunal would be a giant step towards breaking down the wall of
impunity which continues to shield the perpetrators of grave abuses to this day,
whether it be the grenade attack against a demonstration led by SamRainsy at the
National Assembly in March 1997 or the politically motivated murders of more than
80 opposition members and supporters of Prince Ranariddh in the wake of the 1997
In February 1998, Cambodian NGOs, in an appeal to international donors, declared
that "accountability is one of the first and fundamental steps in the process
of building a nation, as it supports the rule of law and protection of human rights.
. . (But) impunity in the Cambodian context means that civil servants, the police,
military and armed groups are often protected from prosecution. Impunity is prevalent
in all phases of the legal process..." This impunity, the NGOs rightly said,
is a basic impediment to sustainable development in Cambodia.
We agree with the Group of Experts that trials will not change the human rights situation
in Cambodia overnight.
Clearly, however, they are an important step in the process of addressing the culture
of impunity; thereby helping Cambodian society to come to grips with its past and