THE first steps towards international condemnation and punishment of the Khmer Rouge
were finally taken last week at the United Nations. More than twenty years after
the infamous regime took power, a commission of international jurists will examine
evidence which, experts say, will conclusively prove the leaders' complicity in genocide.
"When I started this job, it struck me immediately that so little has been done
on the crimes of the Khmer Rouge," said the United Nations special representative
for human rights in Cambodia, Thomas Hammarberg.
"Nothing, all these years. So I thought I'd try" to get an international
legal process started, he said. He added that the UN's reluctance may have stemmed
from its continued recognition of the KR government even after it was deposed by
the Vietnamese invasion of 1979.
Hammarberg's efforts have at last borne fruit. On Nov 26, in response to his second
report to the body, the UN General Assembly passed a resolution which for the first
time condemns the crimes of the KR and calls for concrete action to be taken against
The Assembly "endorses the comments of the Special Representative that the most
serious human rights violations in Cambodia in recent history have been committed
by the Khmer Rouge...and notes with concern that no Khmer Rouge leader has been brought
to account for his crimes."
The resolution goes on to ask the UN Secretary-General to "examine the request"
of the Cambodian government - made June 22 - "for assistance in responding to
past serious violations" of law by the KR.
Most significant, analysts say, is a suggestion following from Hammarberg's report
that the Secretary-General establish a commission of experts "to evaluate the
existing evidence and propose further measures".
"I regard this as a breakthrough," Hammarberg told the Post.
He said the establishment of the commission is "a fact now", and plans
to recommend eminent jurists to serve on the panel as soon as he leaves Cambodia.
He estimates the panel, which could take six months to set up, should finish its
work by the end of next year.
Much of the evidence the commission will examine is housed at the Documentation Center
of Cambodia, a local NGO devoted to translating, publishing and cataloguing documentary
material from the KR period.
The Center's director, Youk Chhang, is confident that its information is sufficient
to implicate the KR top leadership in crimes against humanity.
Chhang says he has documents from standing committee meetings and ministry briefings
implicating top leaders, including Pol Pot, Ieng Sary, Son Sen, Yun Yat, Khieu Samphan,
Ieng Tirith and Nuon Chea.
"They discussed about the policy, how it should be implemented. This shows they
are aware of what happened at the local level, because they report to each other
what happened....so if they are aware that there is a killing and they fail to stop
[it], they must be held responsible."
Of the notorious torture center Tuol Sleng, Chhang says, "It's clear, they knew
about Tuol Sleng." He says he has Ieng Sary's signature on two forced confessions,
and many other signatures which experts suspect to be those of Pol Pot.
However, 'Brother No.1', who denied any knowledge of the center during his recent
interview with Nate Thayer, always signed in pseudonyms, Chhang says.
"Pol Pot has never signed his own name, but code names. We have to have someone
confirm all this code: if we can, then we have plenty of evidence that Pol Pot has
led this genocide in Cambodia. Ieng Sary can confirm this."
On Nov 8, Chhang sent a series of research questions to Ieng Sary, asking about the
codes and pseudonyms used in the documents. However, he has yet to receive any response.
"I have followed up two times, but all the numbers he gave me are disconnected.
He's playing a game, he's very smart, smarter than Pol Pot. Pol Pot is stupid, a
loser. Ieng Sary is a winner, a winner at genocide," Chhang said.
If the UN experts decide there is a prima facie case against the Khmer Rouge leaders,
they will make recommendations on what further actions the international community
should take, according to David Hawk, director of the UN Center for Human Rights
in Phnom Penh.
There is no such thing as an international criminal court having jurisdiction over
crimes such as those of the Khmer Rouge, but an ad hoc tribunal similar to those
set up for Rwanda and the former Yugoslavia is a possibility, Hawk said.
He said that the UN might be reluctant to set up such a body if all Cambodian defendants
were still at large, since its Yugoslav tribunal, set up under similar circumstances,
has had little success in filling its dock. Yet "there would be no greater inducement
to having a tribunal than having Pol Pot in custody," he added.
Such a tribunal would be expensive, complicated and time-consuming to set up, however.
Amnesty International has been examining the unusual, but expedient, possibility
of trying Cambodian defendants in the national courts of other countries.
"[B]ecause the likely charges ... include crimes against humanity and grave
breaches of the Geneva Conventions - which are crimes of universal jurisdiction -
individuals against whom there is a case could be tried in any state," Amnesty
wrote in a June press release.
In addition, legal experts note that some European countries have recently passed
legislation aimed at empowering local courts to try extranational war crimes suspects.
The laws were probably intended to be used against Bosnian defendants, but could
include those from Cambodia as well, experts say.
When speculation was rife this past June that Pol Pot would be captured, Canada was
thought to be a possible venue for a trial. According to Canadian Ambassador Gordon
Longmuir, "We don't really have the legal framework" to extradite Pol Pot
and take him to trial in Canada, "but if we were asked by the Cambodian government
we'd have to consider it again."
However, these legal mechanisms would depend on having at least one defendant to
try. Repeated hints from Khmer Rouge leaders and their allies in the resistance that
Pol Pot will be "handed over to the international community" have renewed
speculation that a Pol Pot trial might become a reality, but there is no real indication
that the leader will ever be captured, analysts say.
However, even one defendant might not be enough, according to Youk Chhang: "If
you only bring Pol Pot to trial you make a fool of yourself, because it's clear that
all the other DK participated in genocide, but Pol Pot happened to be the leader.
They were a collective, as a group."
In some countries, especially where defendants are unavailable, governments have
tried to achieve accountability and national reconciliation after periods of human
rights abuses through quasi-legal means such as truth commissions. South Africa's
current Truth and Reconciliation Commission is one example.
Analysts believe that the UN experts' panel is likely to recommend such a commission
for Cambodia. The body would likely examine evidence, take witness and defendant
testimonies, and produce a report detailing what exactly happened during 1975-79
and who was involved. However, commissions typically do not have power to impose
While a truth commission would have value as a cathartic measure and produce an irrefutable
record, to "show people who is Khmer Rouge, see who is linked", its lack
of punitive powers would make it only a good preliminary step, according to Chhang.
"I want to see a trial. Personally I think that a truth commission is not good
enough. You know, we lost almost two million lives ... I want to see Pol Pot handcuffed
and pushed into jail."
Such legal retribution is favored by most Cambodians, according to a recent survey
by the Documentation Center. "Accounting for the Crimes of the Khmer Rouge,
1975-79: Interviews with Cambodians", published this year, indicates that "punishment
for top leaders is favored....half of those interviewed believed no amnesty should
be given, and of those who favored it, half said not for the top leaders."
"In the end, there has to be a trial because otherwise Cambodia will find no
real peace, no real prosperity. The only way Cambodia can be developed [is] if the
Khmer Rouge organization is condemned and completely destroyed legally," said
Chhang. "Every person wants to see this happen, but it just doesn't come together
yet. But it will come someday."