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Logo of Phnom Penh Post newspaper Phnom Penh Post - Devil's advocate: there should be no KR trial

Devil's advocate: there should be no KR trial

IN the novel 1984, George Orwell wrote: "Freedom is the freedom to say that

two plus two make four. If that is granted, all else follows... The obvious has got

to be defended. The solid world exists: its laws do not change."

The overriding need to "state the obvious" weighs heavily in Cambodia today,

and in many different fields. Diplomats, aid workers, lawyers - even government ministers

- shake their heads gloomily as they complain (in private) of ubiquitous corruption,

popular lassitude and loss of faith in the future. Yet in public most are silent.

The Cambodian sickness - "le mal Cambodgien", as the French writer Marie

Martin calls it - runs on unchecked. "Orthodoxy is unconsciousness," Orwell

wrote. All of us are complicit; we swim with the tide - keeping our truths to ourselves

- rather than risk making waves, irritating everyone else in the process.

This is peculiarly glaring in the case of the proposed international tribunal to

try the former Khmer Rouge. Since it was originally proposed by the two prime ministers,

Hun Sen and Ranariddh, for reasons which, at the time, were entirely political, it

has taken on a life of its own. Neither of its original progenitors now wants it.

Yet how can it be laid to rest? The logic of bringing evildoers to justice seems

unassailable. The assumptions on which the tribunal rests go unexamined and unquestioned.

Allow me, then, at the risk of irritating many, to defend the obvious.

The horrific events that befell Cambodia in the 1970s were not genocide, and no amount

of semantic sleight-of-hand can make them so.

An international tribunal to judge the former Khmer Rouge leaders - should it ever

take place - will have little or nothing to do with justice: it will have everything

to do with judicial revenge; with the interests of the United Nations bureaucracy;

and with political closure for the United States.

It will cost tens of millions of dollars, which are far more urgently needed elsewhere

- and, contrary to the hopes of many Cambodians when the idea was first mooted, it

will not produce compensation from any of the foreign powers involved, China, the

US or Vietnam.

In short, it will be another sideshow - political rather than military, this time

- distracting attention from the real problems Cambodia faces, and from their possible

solution, and offering little or no tangible benefit to those who suffered most.

That may seem a trifle harsh. Indeed, even those who may be skeptical of the proposed

tribunal might find my bluntness misplaced.

The great Chinese satirical writer Lu Xun tells the story of a ceremony at which

he was invited to congratulate the mother of a new-born child.

The other guests vied with each other to predict a great future for the baby. Lu

Xun said, "This baby will die," whereupon everyone present cursed him.

They were, of course, the only true words said that day, for the one certainty about

life is that it must end. Lu Xun's purpose, as a satirist, was to puncture hypocrisy.

Given Cambodia's problems, hypocrisy, however well-intentioned, should have no place

here either.

It is easy to understand why the term "genocide" should be used by writers

and academics, striving to find a word with which to convey the enormity of what

occurred in Cambodia. Other terms seem weak and inadequate to describe death and

suffering on the scale which this country saw.

But words mean what they say. They cannot be twisted elastically to embrace whatever

new meaning politicians wish to place on them.

"Genocide" means a conscious effort to exterminate a race. There was genocide

in Rwanda. There was genocide in Nazi Germany.

But no one can seriously pretend that Pol Pot and his colleagues deliberately set

out to exterminate the Khmer race. Brutality on a massive scale and widespread killing

there certainly was; but not genocide.

What about the Chams, you may ask? And other minority groups who suffered disproportionately

under Khmer Rouge rule?

The answer is the same. They were certainly persecuted - largely because they were

more resistant than other groups to the new order the Khmer Rouge wished to impose.

But it would be difficult, indeed, I believe, impossible to prove a systematic attempt

to exterminate them.

Nor can one define as "genocide" the brutality meted out to the millions

of "new people' from the cities, whose bourgeois origins made them politically

suspect to the new regime.

During the land reform in China in the 1940s and 50s, some two million landlords

were killed, with communist encouragement, by the peasantry. That, too, was a holocaust

of suffering, directed at one formerly privileged social group. But no one has ever

suggested it was genocide.

Nor has anyone accused Stalin of genocide for the deaths of six million kulaks (rich

peasants).

"Revolution", Mao wrote, "is not a dinner party. It is an act of violence

whereby one class overthrows the power of another." For such upheavals, legal

redress is not a viable option.

The alternative, proposed by those who recognize that the charge of "genocide"

is inapplicable, would be to try the Khmer Rouge leaders for crimes against humanity.

But that, too, presents serious problems. Most of the precedents, whether from former

Yugoslavia or from Germany, involved persons who had themselves directly ordered

or directly participated in offenses such as ethnic cleansing, or the administration

of death camps.

In Cambodia's case, all that can be said conclusively is that Pol Pot and his colleagues

in the leadership of the Communist Party of Kampuchea created the political conditions

in which lower-level cadres (above all, village chiefs) ordered or caused the deaths

of upwards of a million people. But does participation in CPK Standing Committee

meetings, at which there was general discussion of the need for unspecified measures

to root out "enemies", constitute a conspiracy, in the legal sense of that

term? Probably not.

Moreover, where is the logic - or, for that matter, the justice - in trying political

leaders, without at the same time trying those who actually carried out the killings?

In Bosnia and Nazi Germany it is precisely the former camp guards, the torturers,

the SS officers, who have been brought to trial in the West. Should Cambodia be held

to different standards simply because it is politically too difficult to envisage

the trials of thousands of grass-roots officials?

"Creating the conditions" for mass starvation and death is a moral and

political concept, not a legal one.

If the Khmer Rouge leaders are morally responsible for all that happened during their

rule, the United States must share the responsibility for bringing them to power.

Could their forces have marched into Phnom Penh in April 1975 had there been no American

intervention in Vietnam?

China, too, played its part. So did Vietnam. So did the Royal Cambodian Government

in the mid-1960s, when, by suppressing the left-wing opposition in parliament, it

left the communists with no choice but to take the path of revolution.

But none of these are legally responsible for their past policies.

There is one more argument that is often advanced and needs dealing with - namely,

that the leaders of the Communist Party of Kampuchea knew about, and were directly

responsible for, the S-21 prison at Tuol Sleng.

Here, at least, we are on firm ground. No one can reasonably deny that Nuon Chea

had overall responsibility for security matters in Democratic Kampuchea, while Son

Sen had direct charge of S-21. The other leaders were also aware of what went on

there, and, to the extent that they were members of the CPK Standing Committee, shared

at least a measure of collective responsibility.

The problem is that half the governments in the world have, or had formerly, establishments

similar to S-21.

Not just the Soviet Union, with its Lubyanka and its gulags; or China with its Central

Case Examination Group; but literally dozens of states in Africa, the Middle East,

Latin America and Asia.

When President Hafez al Assad of Syria died last summer, he was hailed throughout

the Western world as a skilled and redoubtable Arab statesman and warrior. Yet more

people died in Assad's political prisons than died in S-21, and in hardly less horrific

conditions.

How many people were exterminated in Suharto's Indonesia, during the anti-communist

witchhunt? How many mothers in that country were forced to watch as their children

were tortured before their eyes to make them confess?

What of Guatemala and Paraguay and Argentina, and all the other grotesque dictatorships

which flourished during the Cold War?

What makes S-21 different is that a large part of the archives were preserved and

are now available to scholars. That has not happened since the liberation of the

German death camps in 1945. The result has been to focus disproportionate attention

on an institution which, hideous though it was, had its counterparts at one time

or another under most dictatorial regimes.

Of course two wrongs do not make a right. Double standards are the currency of politics

everywhere.

But if the only sustainable charges that can be brought against the Khmer Rouge leaders

are in connection with S-21, the double standard is being pushed too far. Scores

of leaders, formerly or currently in power, could face similar accusations: why pick

on this one group, and ignore all the others? Simply because this is the easiest

target?

If the matter of charges is problematic, the idea that either Cambodia, or for that

matter, the international community, is in a position to conduct a fair trial of

the Khmer Rouge leaders is even more so.

Two months ago the Post (Sep 15) carried a report on what it called "the lack

of progress towards justice for millions of Cambodians".

The main front-page story in that issue was an account of death threats, allegedly

made by a senior government official, Svay Sitha, in a truly horrific case which

the police have found themselves powerless to investigate because of the political

protection enjoyed by those involved. Inside, another story detailed judicial corruption

in the treatment of a foreign sex-offender.

The sad truth is that, given the absence of a reliable legal system in Cambodia,

and the impotence of police and judges alike in the face of political and financial

pressure, any tribunal - international or not - in which Cambodia has a voice will

be fundamentally flawed from the outset.

Morally, moreover, the international community is in a weak position too. The United

States, the prime mover in this affair, supports the creation of ad hoc international

courts to judge foreigners, but refuses to envisage the creation of a permanent body

empowered to judge all nationals, including Americans.

In so doing it undermines the very basis for trans-national justice. If an international

court is not good enough to judge Americans, why should it be good enough to judge

Cambodians?

Thus what seems at first sight to be a perfectly straightforward moral issue - should

the leaders who held power during a period of massive death and suffering be brought

before a court to answer for their actions? - ends up as a legal quagmire.

I am not arguing that Khieu Samphan, Nuon Chea, Ieng Sary and the other former Khmer

Rouge leaders should be left to live out their lives in peace, regardless of the

evidence against them. I am simply saying that, if Western governments wish at last

to do what they have failed to do in Cambodia for the last 30 years - namely to set

an example of equity and justice which Cambodians can take as a point of departure

when they come to build their own democratic institutions - they must ensure that

the former Khmer Rouge leaders are given the same treatment, the same protection

and the same rights as they would wish their own nationals to receive.

Relatives of those who died under the Democratic Kampuchea administration will argue

that the Khmer Rouge did not give their victims legal safeguards. Why should they

be treated better?

But that is to fall into the logic not of justice but of revenge. If that is what

the Hun Sen government and the UN want to do, so be it. But let us not pretend that

it is anything other than revenge.

For a genuinely fair trial to be held, two conditions must be met. First, credible

charges must be brought and must be supported by evidence; second, it must be possible

to constitute a court whose verdict will be genuinely impartial.

If one or the other of those conditions cannot be fulfilled, no trial can be held.

And in that case, the Khmer Rouge leaders have the same rights as anyone else - they

will remain at liberty. And they should remain at liberty, for a trial which is politically

flawed, even though it might give comfort to those who suffered under the Khmer Rouge

regime, would be worse for Cambodia's future than no trial at all.

In which case, you may ask, why are the United Nations and the United States pressing

so hard for a tribunal?

In the case of the UN there are clear institutional motives at work; international

jurisprudence is a promising area for expansion.

United States motives are more puzzling. Even America's West European allies admit

that they do not really understand why Madeleine Albright and her colleagues are

so insistent that "justice" be done.

The best explanation, perhaps, is that the US is seeking political and emotional

closure, and that a court verdict establishing the Khmer Rouge as solely responsible

for the Cambodian tragedy would mark, in Washington's eyes, the final turning of

a singularly unsuccessful and bloody page in American policy.

But would it help Cambodia? Is an international tribunal - even assuming that it

can be constituted fairly, and that appropriate charges can be brought and sustained

- the best response to the problems that Cambodia faces today, 20 years on?

Consider the Nuremberg hearings, at which the Nazi leaders were condemned, and the

Tokyo War Crimes Tribunal.

In Germany, attitudes changed because the German people, revolted by what the Nazis

had done, engaged in a collective soul-searching which continues to this day.

In Japan there was no such soul-searching, no nationwide acknowledgment of the brutality

of the past; instead Japan's wartime atrocities are still systematically minimized

or denied.

Today Germany is fully reconciled with its neighbors; Japan is not. In each case

the key was not the holding of a tribunal, but the political processes that followed.

Last year I talked with Archbishop Desmond Tutu of South Africa's Truth and Reconciliation

Commission about the way his country has tackled its legacy of hatred and terror.

At the time I told him that I did not believe any such approach was feasible in Cambodia.

Now I am not so sure.

This is not to say that the South African example can or should be replicated precisely

here. Cambodian culture and society are too different: a straight transplant simply

would not work.

But the Truth and Reconciliation Commission does at least prove that other approaches

are possible. And the essence of what has been done in South Africa - the creation

of a forum at which participants in the tragedy discuss, to the extent that they

feel able, without compulsion or the threat of legal proceedings, their role and

motivation - is certainly applicable here as well.

If Cambodia is to move forward, it has to come to terms with its past.

Truth is the only basis for reconciliation. Demonizing the Khmer Rouge will not help.

What most Cambodians want above all is to understand what happened to them, to answer

the question: Why? Only when that has been done will it be possible for this country

to put the past behind it.

A tribunal to judge the Khmer Rouge is unlikely to promote that purpose. Apart from

the political burdens such a procedure carries, the threat of punishment - as the

South Africans recognized - discourages rather than promotes the search for truth.

Nuon Chea, Khieu Samphan and their colleagues would have every reason to adopt the

strategy that the former Chinese Vice-Premier, Zhang Chunqiao, adopted at the trial

of the so-called "Gang of Four" in Beijing in 1980 - by refusing to recognize

the authority of the court and remaining silent throughout the proceedings. If that

were to happen, in what way could anyone say it had advanced the cause of truth in

Cambodia?

The Hun Sen government may have its faults, but it is the government Cambodia has.

If the United States and the UN devoted a tenth of the energy they are expending

on the promotion of the tribunal to nudging Hun Sen towards a more democratic, law-based

regime, it might be possible to create the conditions for a reasoned, national discussion

of the problems of the past - and Cambodia would be the first beneficiary.

At some point in the future, such a discussion will have to take place. Is it really

too soon to begin?

- Philip Short is a British writer and biographer, formerly a foreign correspondent

for the BBC. His latest book, a biography of Mao Zedong, was published in January.

He is now working on a study of the Cambodian communist movement.

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