Mahdev Mohan and Laurel E Fletcher
This month’s indictment of four former senior Khmer Rouge leaders is a historic step forward in Cambodia’s search for justice. After three years of investigation, the Khmer Rouge Tribunal has brought charges of mass atrocity crimes against Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng Thirith, who occupied key positions in the Democratic Kampuchea government, which ruled Cambodia in a bloody reign of terror from 1975 to 1979. However, the prosecution’s success is far from assured. To help convict defendants for the “ultimate” crime of genocide, the court will need to hear from a neglected Khmer minority group, the Khmer Krom.
Defendants face charges of carrying out genocide against the Cham Muslims and ethnic Vietnamese, but are not charged with genocide against the Khmer Krom. Nevertheless, the prosecutors should give Khmer Krom survivors their day in court. Doing so will provide a measure of justice for this victimized group. It will also help prosecutors prove their case against the defendants.
Originating from Vietnam’s lower Mekong Delta region, fluent in Vietnamese, and maintaining their own cultural practices, the Khmer Krom were targeted for elimination because the Khmer Rouge perceived them to be associated with the ethnic Vietnamese population. As tensions flared between the DK and Vietnam in 1977, the DK turned against its neighbour. The regime persecuted the Khmer Krom for being Youn (a derogatory term for Vietnamese) spies, despite their Khmer ethnicity.
Our independent investigations reveal that in their heartland areas throughout Cambodia, such as Bakan district in Pursat province, most of the Khmer Krom were singled out and slaughtered en masse by the DK for having “Khmer bodies but Vietnamese minds”. Their perceived identity was all that mattered. Tellingly, in cases of mixed marriage, the Khmer Krom spouse was taken away to be killed, and the widow or widower was forcibly remarried. Yet, the persecution of the Khmer Krom has, until recently, been a blind-spot for the Tribunal. Crimes against the Khmer Krom were not initially investigated by the court.
But survivors of mass violence do not take kindly to being silenced. Over the past two years, more than 100 of our Khmer Krom clients from five provinces have come forward to tell their story. Through us, they have submitted investigative requests, provided audio-visual data, filed appeals against the Tribunal’s decisions, engaged in media advocacy and otherwise sought to have their voices heard.
The Khmer Krom’s sustained efforts have produced results. The Court has granted more than 80 of our Khmer Krom clients “civil party” status, which means they have the right to participate in the proceedings.
In June in Bakan district, Co-Prosecutor Andrew Cayley met with a group of 200 Khmer Krom survivors – the first time a prosecutor has done so. Speaking in the grounds of Rumlech pagoda, which was once the site of mass Khmer Krom executions, Cayley acknowledged the need to present to the court the atrocities committed against the Khmer Krom people. He pledged to these survivors that their evidence would be heard at trial.
Keeping his promise at the upcoming trial will not only help vindicate the Khmer Krom’s desire to see justice done, but also help Cayley’s team secure convictions. Evidence from Khmer Krom survivors illustrates the context, reach, and evolution of the DK’s policy toward those it viewed as disloyal. By testifying about how they and their families were singled out for elimination in Cambodia and Vietnam because the DK treated them as Vietnamese, Khmer Krom witnesses will help prosecutors prove that the defendants carried out a policy to destroy ethnic Vietnamese, an essential element of the crime of genocide.
Of course, putting the former Khmer Rouge leaders in the dock poses particular challenges. It is impossible to prosecute these octogenarians for all the possible crimes for which there is evidence. Seen in this way, the charges are emblematic rather than exhaustive of the regime’s misdeeds. Nonetheless, prosecutors should not shy away from including evidence at trial that illustrates criminal activity beyond the charges, especially when doing so will also support convictions.
Law is our ultimate recourse when mass violence has occurred. For our Khmer Krom clients, including their testimony in the legal record may become the only formal acknowledgment they will receive of the atrocities they endured under the DK regime. History and justice demand they be heard.
Mahdev Mohan is an international civil party lawyer at the ECCC. Laurel E Fletcher is a clinical visiting professor of law at Yale University.