December 12: former Brother Number 2, Nuon Chea, sees the inside of a Cambodian court for the first time - but this was only as a witness for former KR commander Sam Bith.
Shortly before the recent buzz of Cambodia-related activity at the United Nations
in New York, I read the 2002 report of the UN Special Representative for Cambodia
to the General Assembly. It seemed as if the language of what is termed Transitional
Justice had crept in.
It came as no surprise to read a little later that President Thabo Mbeki of South
Africa was offering to share with Cambodia his country's elixir for nations with
dark secrets - a truth commission - and that a Cambodian delegation had traveled
there to learn more about this mechanism. Obviously the interest in truth commissions
has also reached Pailin.
Even with five star justice that satisfies international standards, the chances are
that on their own a limited number of trials of elderly Khmer Rouge leaders are unlikely
to meet the complex needs of a deeply ravaged society that has borne the brunt of
extensive and gross violations of human rights.
For a long time now, the debate has focused, correctly in my view, on the importance
of individual criminal responsibility for atrocities. Perhaps it is now time to widen
that debate. The extent of the atrocities, which have blighted the lives of millions
of Cambodians and been unaddressed by the State for so long now, mean that additional
measures are needed to restore equilibrium.
Transitional Justice is a paradigm that is focused on nations that emerge from legacies
of gross violations of human rights under authoritarian regimes and how they rebuild
shattered lives and communities in the transition to democracy.
Nations in such situations are usually faced with thousands of victims and thousands
of perpetrators. They also tend to have weak criminal justice systems, unstable political
environments and myriad other pressures. These circumstances have led to a re-thinking
of traditional concepts of justice and accountability, and the exploration of additional,
sometimes alternative, mechanisms.
The starting point for Transitional Justice discussions must always be one of principle:
that International Law requires States to hold perpetrators of genocide, war crimes,
crimes against humanity and torture criminally responsible for their actions. This
is not an option but a question of basic legal obligation.
That established, complementary measures can be properly considered. One of those
options is the 'truth commission'. It is essentially a commission of inquiry, with
some wider socio-political purposes.
The first such commission has been traced back to Uganda in 1974. The device spread
in popularity in the mid-1980s in South America, particularly after Argentina created
a National Commission on the Disappeared to investigate the fate of the thousands
who disappeared during the military dictatorship. There have been approximately 30
truth commissions to date, and not all of them have involved the granting of amnesties
for gross violations of human rights.
Studies have shown that the many truth commissions have at least four common objectives:
establishing an accurate historical record, obtaining justice for victims, facilitating
national reconciliation, and deterring further violations and abuses.
A lot of this work has already been done in Cambodia. Take for example, the Documentation
Center of Cambodia (DC-Cam). It has been working to record and preserve the history
of the Khmer Rouge regime for future generations and to compile and organize information
that can serve as potential evidence in a future legal accounting.
The Executive Summary of its 2001 Annual Report says that, "[t]hese objectives
represent our promotion of memory and justice, both of which are critical foundations
for the rule of law and genuine national reconciliation in Cambodia".
Within its vast database must surely lie the 'truth'. However, it has also gone well
into social justice and the creation of a better society through learning from the
past. DC-Cam has conducted and encouraged research on the Khmer Rouge through use
of its materials, assisted with the tracing of relatives and friends, and trained
fellow Cambodians in a variety of useful skills.
In a recent publication, it was suggested that, "[t]he cathartic effect of truth
is the underlying goal of all of the Documentation Center's work. These cathartic
effects help to bring about change in Cambodia, one heart at a time, one Cambodian
at a time, so that eventually, bit by bit, it will have the effect of facilitating
national reconciliation everywhere in Cambodia."
In assessing the viability of having a truth commission in Cambodia, it is important
to stress that this mechanism has both supporters and detractors. Much has been spoken
and written on the important role that victims are given in this forum, and how a
certain closure is attained with the delivery of an official 'truth'.
Some are convinced that it provides a framework for rebuilding shattered states,
communities, families, and individuals. Many note that the truth commission can take
the pressure off a fragile justice system. On the other hand, others are concerned
that the expectations created in the truth commission process are unrealistic; and
at the suggestion that 'truth' and 'reconciliation' do not emerge from criminal justice.
There are concerns at the suggestion that courts of law do not provide a venue for
victims to express themselves or for satisfactory justice. The claim that the truth
commission is a form of accountability is in some quarters viewed with skepticism.
Others vehemently object to the diluting of Rule of Law through the use of such commissions
and the granting of amnesties. They see a move away from the fundamental principles
of the Nuremburg trials, that individual perpetrators of atrocities must be made
criminally responsible for their actions.
I was glad to read that a Cambodian delegation went to South Africa. I sincerely
hope that they will also go to Churchillplein 1 in The Hague, home of the International
Criminal Tribunal for the Former Yugoslavia, to see the sort of justice that is the
rightful due of the Cambodian people.
They should also learn more about how impoverished Rwanda, faced with thousands of
suspected genocidaires languishing in its prisons, is attempting to process many
of these cases through creative use of a traditional dispute resolution mechanism
called gacaca. The work of the many other truth commissions should also be considered.
Closer to home there is East Timor, which has a mixed panel of judges dealing with
international crimes, and a truth commission. This truth commission is a sophisticated
model that is subordinated to the criminal justice system and cannot amnesty for
genocide, crimes against humanity, torture and war crimes; it also uses traditional
Why not also have a look at Indonesia, where the question of what to do with its
huge legacy of oppression under the New Order is still unresolved, and a draft truth
commission law that is heavily influenced by the South African model is criticized
as being inappropriate for its particular circumstances?
One priceless lesson of South Africa is that with political will, sincerity and creative
thinking, a nation can craft its own unique way of dealing with a legacy of gross
violations of human rights and do so in a responsible and meaningful way.
Cambodia would be wise to look around at what other nations are doing, but it need
not jump on the bandwagon and have a truth commission. Cambodia has existing resources
and its own particular needs, one of which is the desperate need to reform and strengthen
its justice sector and assert Rule of Law to hold individuals, regardless of rank
and influence, responsible for their criminal actions. The impunity simply cannot
go on and on and on. It is poisoning everyday life and condemning future generations.
If the latest initiatives to secure the involvement of the UN fail, focus must then
go on the next best option. It may be time for states that are supporting criminal
justice for the Khmer Rouge to consider the exercise of universal jurisdiction through
their own courts. Whichever way it goes, perhaps the seeds for a unique Cambodian
approach may lie in having a nationwide consultation on ways to utilize existing
resources to meet the wider needs of Cambodian society.
Suzannah Linton practices International Law and has worked on accountability for
gross violations of human rights in many countries. She is currently Visiting Fellow
at the Center for Civil and Human Rights, Law School, University of Notre Dame. She
worked in Cambodia in 2001/2002 and has published legal studies on the prosecution
of the Khmer Rouge.