In the first of a three-part series, academic Steve Heder looks at the
roots of the culture of impunity in Cambodian society.
Twinned cultures of impunity and victor's justice have become deeply entrenched in
Cambodia since the late colonial period, largely as a result of the policies pursued
by those foreign powers that have been most deeply involved in Cambodia since World
War II: France, the United States and Vietnam.
These imported traditions were for decades reinforced by the consistent international
apathy and inaction vis-à-vis war crimes, crimes against humanity, consistent
patterns of gross violations of human rights and even genocide in Cambodia.
The legacy of Nuremberg and Tokyo
The ideal of trials for war crimes and the related notion of bringing to justice
those responsible for gross violations of human rights first came to Cambodia in
the aftermath of World War II.
Cambodians, like other people who had been affected by the war in Asia and the Pacific,
were treated to the spectacle of the victor's justice imposed on the defeated Japanese
by the triumphant Americans and their Allies. Above all, the International Military
Tribunal for the Far East (or Tokyo Trial) for "Category A" Japanese war
criminals had more to do with politics than with fairness or justice.
Japanese forces were guilty of numerous war crimes and other atrocities, but in terms
of judicial procedure and law, the trial of Japanese wartime leaders for war crimes
and crimes against peace were, in the words of historian Richard Minear, "a
travesty". Moreover, as a distorted and one-sided history of Japanese misdeeds,
they served to deceive Americans and Asians in a way that validated the winners'
"parochial, ethnocentric, self-serving chauvinistic view of the ... War".
Minear has pointed to the ways in which they thus helped pave the way for the policies
pursued by the United States in later years in Indochina and other parts of Southeast
Yet, like the Nuremberg principles on which the Tokyo trials were partially based,
they also heralded the ideal of individual resistance to governments engaged in aggressive
warfare, in war crimes, in crimes against humanity and genocide.
They called forth popular and even anti-state struggles to place moral and legal
limits on governments, to expose and discredit governmental lies, pretensions, abuses
They thus helped underpin the notion of conscientious objection to war. They eventually
helped to spawn non-state "tribunals of conscience", like that convened
by Bertrand Russell to examine United States actions in Indochina, and organizations
like Amnesty International, founded to defend "prisoners of conscience".
In other words, they left "reasons of state" exposed to moral as well as
legal opposition, thus potentially strengthening individuals in their campaigns against
the acts of political leaders.
However, the flowering of this heritage remained in the future, and the Tokyo Trials
and other war crimes proceedings had more immediate and specific legacies in Southeast
Asia, and above all Indochina, where politics overwhelmed justice to the point of
The resulting near vacuum of justice in Indochina has to be seen in comparison to
the rest of the world. Altogether, in addition to Nuremberg and Tokyo, the victorious
Allies in Europe and Asia conducted thousands of war crimes trials.
The number of individual cases brought to trial for war crimes in West Germany eventually
totalled more than 88,000. In addition, as part of the process known as de-Nazification,
930,000 people were tried as Nazis, with those found guilty more or less barred from
assuming positions of postwar leadership. In the Far East, Allied tribunals and military
commissions conducted some 2,200 trials, which condemned 920 Japanese to death and
sentenced some 3,000 others to prison terms.
However, while in post-war metropolitan France, some 40,000 Nazi collaborators and
sympathizers were sentenced by special French courts, in Indochina, very few trials
A total of 198 people were convicted of war crimes in Indochina, almost all of them
Japanese. Unlike in France, those who collaborated with the Nazi-friendly Vichy government
as colonial officials were hardly touched.
Instead, the main French concern was reversing the gains made by anti-colonial and
This included both those who as members of the Indochinese Communist Party (ICP)
had been the only organized, consistently anti-Japanese force in Indochina, and those
who had cooperated, as many Southeast Asians initially did, with the Japanese against
Among those tried was Son Ngoc Thanh, a Cambodian Khmer Kraom from Cochinchina, who
had become the Prime Minister of an independent Kingdom of Cambodia Government in
August 1945. In October, as part of the playing out of a plot scripted by the then
young King Norodom sihanouk, he was invited by Allied officers to a meeting, at which
he was promptly arrested.
A French military tribunal sitting in Saigon sentenced him to 20 years imprisonment
with hard labour for "collaboration with the enemy and harming the security
of the state".
Such French trials were hardly models of fairness. They were presided over by military
men selected on the basis of political criteria who enjoyed elastic procedural powers.
In Indochina as elsewhere in Southeast Asia, the whole process inspired little local
As one Burmese explained 40 years later, Southeast Asians considered "achieving
national independence without too much delay" their most important post-war
problem, and after that economic "restoration, reconstruction, and recovery
as quickly as possible".
The trials not only did not serve these ends, they largely failed to punish those
responsible for war crimes against Southeast Asians. Thus, "the people ... lost
faith in the proceedings", in which Southeast Asians played no part.
Above all, they failed to persuade Southeast Asians that they should seek justice
through international legal institutions, rather than "take up arms" in
order to put themselves in the position to dispense victor's justice, just as the
Allies had done.
Armed struggle and Victor's Justice in Cambodia, 1945-1970
In Cambodia, many took up arms against the French, declaring themselves "Khmer
Issarak" or "Emancipated Khmer". This disparate social movement had
its origins in notions of freeing Cambodians from French domination by incorporating
them into an independent Thailand or Siam. But after its Thai and Siamese patrons
either abandoned their Issarak clients or lost power in Bangkok, its lower social
elements were instead increasingly incorporated into the united front and military
structures of the Vietnamese-led ICP. This set in motion a process that ultimately
generated what Sovietologist Alexander Moytl has persuasively argued is a kind of
"inevitable nationalism" that grows out of the contradictions produced
by semi-federal Communist political structures that at once proclaim national equality
and enforce hierarchies of national status. This process produced what was for Vietnamese
Communists and Cambodians alike the inadvertent creation and disagreeable surprise
that was Pol Pot(-ism).
This was a process that was assisted by the way the international community allowed
the anti-Communist government of Norodom Sihanouk to use elections to crush Communists
and all other forms of opposition with impunity in 1955, 1958 and 1962. The crucial
contest was in 1955, one year after the Geneva Agreements ended what would become
the First Indochina War by promising Communist insurgents that if they laid down
their arms, they would have the opportunity to compete against their foes electorally.
At Geneva, Sihanouk's government promised "to take the necessary measures to
integrate all citizens, without discrimination, into the national community and to
guarantee them the enjoyment of the right and freedoms for which the Constitution
of the Kingdom provides", and in particular "that all Cambodian citizens
may freely participate as electors or candidates in the general elections by secret
ballot." It also promised to ensure that "no reprisals shall be taken"
against members of the former armed opposition, and that they would enjoy "all
constitutional guarantees concerning the protection of ... democratic freedoms".
An International Commission for Supervision and Control (ICSC), comprising representatives
of India, Poland and Canada, was supposed to "fulfil the functions of control,
observation, inspection and investigation connected with the implementation of the
provisions of the Agreement". Sihanouk and his supporters, which at this time
included the United States, questioned whether the ICSC had a full mandate to supervise
and control the elections. In practice, it mostly limited itself to "general
observation and not supervision" of the electoral process. It was unable to
protect Communist-front and other opposition candidates and their supporters from
violent harassment, detention or even murder. The obvious lesson was that Cambodians
who wanted political change and justice could no more rely on internationally-supervised
elections than they could on international war crimes tribunals.
By the early 1960s, Sihanouk's violent repression of the Communists had driven Pol
Pot and the movement's other leading figures into taking refuge in Vietnam. By the
late 1960s, further repression had prompted them to strike out on their own in an
attempt to make an independent revolution. They relocated to the far northeast of
Cambodia, where both they and Sihanouk government forces engaged in terror tactics.
Insurgent forces led by Ieng Sary, then the Secretary of the Communists' Northeast
Zone, assassinated former village and subdistrict chiefs who fell into their hands.
Sihanouk ordered summary executions of captured communists, and reportedly claimed
in August 1968 that he had put over 1,500 of them to death nation-wide since 1967.
He publicly claimed personal credit for ordering the killings, and taunted the Communists
by declaring that he did not care if one day they would have him "judged"
by a "people's tribunal" for his crimes.
The tradition of people's justice
Sihanouk's challenge reflected his assumption that should the Communists win, he
would be subjected to victor's justice through the use of the established Communist
institution of "people's courts" or "people's tribunals". Such
pseudo-judicial bodies had historically been used by Communist Parties not only to
dispatch with long-established foes, but also to terrorize and repress the waves
of new enemies that they make for themselves in attempting to impose revolutionary
change. Such supposedly "popular" justice was not about fair trials, but
part of a process that in fact did away with the niceties of procedure, and in which
the innocent were drawn in and justice became arbitrary. They were an integral part
of a machinery of terror often hurriedly constructed as Communists attempted to consolidate
power and give an aura of legality to a system for the detainment, correction or
execution of the accused. The use of people's courts was institutionalized in the
Soviet Union as part of a terror that was first unleashed to root out concealed enemies
of the Revolution and then to defend the Bolshevik government from the threat posed
by the simultaneous invasion by most of the Western powers and Japan. It was thereafter
codified as part of a strategy of "class war" in which the use of force
was as natural as it would be in any other circumstance of belligerency. Once this
decision to use force was institutionalized, the level of force deployed continued
to escalate as new, more ambitious and unachievable revolutionary tasks were defined.
Arrests, trials and executions followed as supposed obstacles to the successful completion
of the tasks at hand were identified. Under Stalin, terror and show trials continued,
for the recrudescence of violence, countered by the mobilization of such large coercive
forces, created within the Soviet state a new series of challenges that the demonstration
effect of the show trials was designed to eliminate.
Such trials were also institutionalized in Communist China. They were used starting
long before the Communist victory in 1949. Thereafter, as secret police forces answering
to the Ministry of Security permeated deeply into society, mass mobilization movements
were whipped up to flush out "counter-revolutionaries" for trial before
local people's tribunals. Those tried were either to be executed or sent to a system
of camps for punishment and re-education.
The institution also spread to the Vietnamese Communist movement. Vietnamese people's
courts were already in use during the First Indochina War, but they came more into
their own after the Geneva Agreements left the Communists in control of the northern
half of the country and their foes in control of the south. During a land reform
campaign in the north in 1955-56, the Vietnam Workers Party committed what it subsequently
described as "excesses". According to Party figures, which almost certainly
underestimate the toll, some 15,000 innocent victims died in an anarchic campaign
of terror, which included trials of landlords by people's tribunals. In a retrospective
appraisal, senior Party leaders publicly blamed the "serious, widespread and
prolonged .... errors" that led to so many deaths on mistakes in class analysis
and in the classification of people according to their political attitude. Because
in suppressing "enemies", the Party "emphasized determination but
did not emphasize caution", the "area of struggle" was "widened",
so that "many innocent people were classified as reactionaries". During
the campaign, it was also alleged that "enemy organizations had infiltrated"
the Communists' "own organizations", so that "Party members, cadres
and families which had worked with the ... revolution ... were regarded as reactionaries."
The "deeper" these attacks went, "the more they were misdirected"
and the more the Party attacked within its "own ranks at the same". Executions
were justified by the slogan "let ten innocent people die rather than let one
enemy escape (Tha Chet Muoi Nguoi Oan Con Hon De Sot Mot Dich). As one former cadre
later explained, "crimes were frequently manufactured in order to try a class
enemy". Another said that such "fabrications" were part of a process
whereby class enemies "were accused so that they could be punished."
As a result of the catastrophe, Party Secretary-General Truong Chinh was obliged
to carry out self-criticism and lost this top post. However, the Party's overriding
concern was to maintain the myth of its infallibility. It thus declared that, generally,
"the policy line of the Central Committee had been basically correct",
and "the direct cause of the serious errors lay in the shortcomings in the work
of directing the implementation." It rejected suggestions that the killings
also resulted from a complete contempt for legality and juridical expertise and,
above all, the lack of democracy, suggestions which hinted at the possibility of
trying those responsible for the crimes.
As the land reform terror in the north of Vietnam was reigned in, insurgent terror
was initiated by a Party beleaguered by repression in the south, and again people's
tribunals were integrated into the system of counter-violence. In late 1956, an earlier
proscription of the practice of "elimination of `wicked tyrants'" was changed
to allow a limited policy of violence known as "killing tyrants (tru gian)".
The Party launched a program aimed at maintaining and developing armed propaganda
units at provincial level who were to carry out the "killing tyrants campaign."
Soon, underground Party cadres, organized in small selected armed groups, were systematically
kidnapping and/or executing local officials. This violence was portrayed as a reaction
to a situation in which the "cruel agents" of the Saigon administration
were becoming "more aggressive" and "bloodier in the crimes they perpetrated"
against the Communists. Its stated purposes included to "aid in the developing
of the Party by creating fear in the enemy ranks and by creating faith among the
masses in the skilled leadership of the revolution". Eventually, the Party tried
to turn the punishment of local tyrants and the destruction of the grassroots administration
of its enemies into "a widely-extending mass movement" that was supposed
to "encourage ... the population" and have "a sobering effect on the
enemies of the revolution." Often, the communists aimed to kill their designated
enemies in as spectacular a method as possible in order to achieve the gradual "insulation"
of the central authorities from contact with the grass roots.
One form of such ostentation was the use of "people's tribunals" to legitimize
killing the most prominent local "tyrants", who were executed publicly
in order to set an example to others. Communist cadre at the district level and above
had the authority to carry out executions, with People's Courts employed to try those
who supposedly could not or would not be redeemed by other methods. During the Communists'
Tet offensive in 1968, civilian party cadre accompanied by assassination squads seized
and executed key individuals after such "trials". These killings were accompanied
by propaganda to the effect that guerilla forces and local people had joined together
to punish a few "die-hard cruel agents" of the enemy.
Thus, for the Communists in the south, peoples' courts were part of a system in which
hatred was a violent resource which cadres should work to intensify. Trials of victims
aimed to underline the peasants' class anger at their designated enemies. As such,
they were integral to the task of "motivating the people" to support the
There were other ways of motivating the people, such as deception, a tactic Vietnamese
Communist leader Le Duan had discussed with his Cambodian counterpart Pol Pot when
the latter visited Hanoi in 1965. In this regard, Le Duan gave advice that may have
helped save Sihanouk from the people's tribunal he feared he would face if the Communists
won. Le Duan counselled Pol Pot that Cambodian Communists should look for opportunities
to "use the cover of Sihanouk's name to appeal" to the masses. Pol Pot
decided to follow this recommendation and exploit Sihanouk's domestic and international
legitimacy for everything it was worth after the Prince was overthrown by his armed
forces chief, Lon Nol, in 1970. This policy was finally terminated in March 1976,
when Pol Pot ruled that the Communist Party should agree to Sihanouk's request to
"retire" as Cambodia's titular head of state, because the disillusioned
Prince appeared to have exhausted his political usefulness.
Although Pol Pot's regime never fulfilled its public promise to erect a monument
in Sihanouk's honour, he was kept alive, in reserve, and certainly not put on trial.
He thus survived to be unleashed in early 1979 in the hope that he could be utilized
again, this time to help Pol Pot mobilize domestic and international support against
the Vietnamese invasion that had precipitated the collapse of his genocidal regime.
A "Genocidal" War in Indochina
According to the orthodoxy of Indochinese Communism, the victories the region's three
Communist Parties had won in 1975 were against a genocidal war waged by US imperialism.
As the Vietnamese put it in 1971, the US was relying upon "a strategy of genocide"
against "the Vietnamese, Lao and Khmer peoples" in trying to impose its
"puppet regimes" on Indochina.
They vowed that the "struggle" of the Indochinese peoples would be waged
until final victory despite all attempts to "deceive" the Indochinese peoples
that the US had other than genocidal goals. For his part, Sihanouk argued that Lon
Nol and other top figures of the Marshall's Khmer Republic should be shot without
even the benefit of a "people's trial", just like the Communists he had
dispatched summarily in the late 1960s.
To justify this, he insisted the Khmer Republic was even more a puppet tool of American
genocide than the Saigon regime that the Vietnamese Communists were fighting. He
asserted that what he described as "the Phnom Penh putchists" for having
overthrown him were "traitors and outlaws .... guilty of unspeakable crimes."
He said they must be "wiped out" and "inevitably ... executed"
for their part in the "international plot to destroy" Cambodia.
They must pay with their lives for wanting "to prevent the revolutionary peoples
of Indochina from surviving" and for acting as tools of the US "war of
extermination against the entire people of Indochina", which was "worse
than what Hitler did".
This blatant advocacy of the crudest form of victors' justice stood in stark contrast
to the failure of the international community to take seriously the war crimes and
crimes against humanity that the United States was arguably committing in some measure
in Indochina, including Cambodia.
As journalist Neil Sheehan put it with regard to United States bombing throughout
Indochina, the facts available as of 1971-72 demonstrated that the employment of
airpower had "reached a level of calculated slaughter which may gravely violate
the laws of war, laws the United States has pledged itself to uphold and enforce.
"The evidence speaks for those who wish to hear it. The air war may constitute
a massive war crime by the American government and its leaders." Because no
legally-constituted international judicial institution wanted to hear the allegations,
Indochinese Communists could impose victor's justice only on those of their own countries'
citizens whom they felt were guilty of a criminal collaboration with a genocidal
And as it had been 30 years since the end of World War II, the notion of imposing
such justice through an actual judicial procedure, however flawed, had fallen into
Post-1975 Victor's Justice in Vietnam
After their victory in April 1975, the Vietnamese Communists were thus not inclined
to deal with their enemies through people's courts. Instead of instilling fear by
public trials and executions, they resorted to deception and stealth in order to
neutralize their enemies. They thus broke the promises they made in 1973 not to engage
in any "acts of reprisal and discrimination against individuals or organizations"
that had "collaborated" with the Saigon side.
They also betrayed the assurances they and their war-time united front allies had
always given that they would pursue a policy of post-war national reconciliation.
Scorning judicial procedures, the Party instead tricked the entire civilian bureaucracy
and officer corps of the Saigon regime and the non-Communist intelligentsia into
going into `re-education' camps.
This "massive use of incarceration for "re-education" put as many
as 300,000 military officers, civilian officials and political party members ...
in 21 re-education camps for periods ranging from a few months to many years.
They were joined by hundreds of writers, artists, journalists and publishers who
were arrested and sent to the camps in 1975-76 because of their political points
of view as evidenced by past words and affiliations.
This guaranteed the powerlessness of the defeated enemies and other potential opponents
of the Party by ensuring that they had no recourse to forums in which victims might
manifest their continued opposition. The victims' only choices were to submit to
the new regime or face indefinite detention.
To the extent that there were executions, they were conducted in secrecy. One study
has alleged that thousands of high-ranking officials were executed by the Communists,
either immediately after the Communist takeover or later in the "re-education"
Thousands of former members of the Communist-controlled National Liberation Front
who had defected to the Saigon side were also allegedly executed. While killing detainees
behind the scenes, the Vietnamese argued in public that "re-education without
judiciary condemnation" was indicative of a policy of "leniency and generosity
towards those ... who have collaborated with the enemy".
"Re-education" was thus presented as a merciful form of rehabilitation
wherein those who failed to conform to governmental policy were deprived of their
rights as citizens until the administration deemed them ready to return to society.
However, early provisions according to which people would be held for re-education
for no more than 30 days were retroactively revised to allow detention first for
up to three years and then to as many as 20 years. Promises remained in place that
detainees who exhibited "real progress, confess their crimes and score merits"
would enjoy early release.
So, too, did an undertaking that those who owed "many blood debts" to the
people would be brought to trial. Trials were thus kept in reserve as a kind last
resort for dealing with "obstinate counter-revolutionary elements" who
were either considered or proved to be impervious to reform through "re-education"
and hard labour remained.
Those whom the Party decided not simply to "sanction ... administratively"
could in theory be "prosecuted before a people's court", if this would
serve propaganda needs better than a quiet bureaucratic solution.
However, for at least the first six years after the Communist triumph in Vietnam,
victor's justice there had still not been manifest in the form of trials, even though
the Vietnamese government invoked the legacy of Nuremberg and Tokyo to suggest that
those it was holding without trial for "re-education" were "guilty
of crimes condemned by moral codes and laws in all continents".
It continued to argue that although "Vietnam would have full authority and sufficient
grounds to try them before a court and to mete out severe punishments in accordance
with its laws and regulations," it had not done so "for humanitarian reasons".
Avoiding trials was a "most humanitarian system, and the most advantageous one
for law offenders." It was also "in accordance with the tradition of generosity
and humanitarianism of the Vietnamese nation and the loftiest ideals of mankind."