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Logo of Phnom Penh Post newspaper Phnom Penh Post - The 'traditions' of impunity and victors' justice in Cambodia

The 'traditions' of impunity and victors' justice in Cambodia

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

Asia.

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

and excesses.

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

absurdity.

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

were conducted.

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

nationalist Indochinese.

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

the French.

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

confidence.

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

revolution.

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

enemy.

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

some abeyance.

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"

camps.

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."

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