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Breaking down the wall of impunity

Breaking down the wall of impunity

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

for Cambodia.

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but simply outdated assertion that dealing with the KR is an "internal problem"

for Cambodia.

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

their impunity.

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

from 1975-79.

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

and complexity.

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

move forward.


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