Logo of Phnom Penh Post newspaper Phnom Penh Post - KR Tribunal's 'Nuremberg model' criticized for just targeting leaders

KR Tribunal's 'Nuremberg model' criticized for just targeting leaders

KR Tribunal's 'Nuremberg model' criticized for just targeting leaders

Expert says 'lower-downs' share blame

Hun Sen addresses a meeting in 1980: From left, Dith Munty, Chea Soth, Hun Sen, Hor Namhong and perhaps Chan Phin.


n July, London's respectable newspaper The Guardian carried a story suggesting that

Prime Minister Hun Sen and "many of his cohorts" could be implicated in

a Khmer Rouge tribunal were it "free and fair".

It is a claim that appears frequently in the international media, but there are few

experts who will stand behind such a broad statement.

Although Hun Sen was once a low-level cadre in the Democratic Kampuchea (DK) regime,

and many government officials served as Khmer Rouge (KR) officials or soldiers, hard

evidence of government members' involvement in war crimes is thin or non-existent.

Nonetheless, it is frequently cited as the reason why the government has made extraordinarily

slow progress in bringing the ex-KR leadership to justice since the idea was proposed

to the UN in 1997.

But has the fear of dirty laundry among Cambodian People's Party (CPP) members caused

the negotiations to languish?

The experts offer mixed opinions.

"Without a doubt," says Steve Heder, a Cambodia scholar with the School

of Oriental and African Studies at the University of London.

Youk Chhang, director of the Documentation Center of Cambodia, says government members

have no reason to be worried.

"That question was settled with the passing of the [Khmer Rouge tribunal law

in early 2001]," he says. And he points out that former KR cadre can be found

in all walks of Cambodian life, including all three main political parties.

Yet genocide researcher Craig Etcheson maintains that while anxiety among government

officials has been a factor, most party officials still support the tribunal.

"CPP members have a wide range of views on the tribunal question, but it is

my sense that the majority strongly favors [it]," Etcheson wrote in an email.

"At the same time, it is clear that some elements in the ruling party are not

enthusiastic. [They] have made it more difficult for the party to reach a consensus

on this issue."

That there would be mixed feelings within the ruling party should not be surprising.

The government may include ex-KR but it also contains many victims of Khmer Rouge


The party has used the defeat of the Khmer Rouge as a major source of political capital

since 1979. The party's leadership wedded its image to the overthrow of Pol Pot and

referred to it frequently while campaigning in all elections since 1993.

Yet the identity of the party's senior leadership is inextricably linked to the Khmer

Rogue. The three most powerful members of the CPP-Hun Sen, party chairman Chea Sim

and honorary chairman Heng Samrin-all held positions in the DK regime before fleeing

from the purges of 1977 and 1978.

All returned to establish a new government and wage the long battle against their

former comrades. Of those three, Hun Sen has been most vocal about putting Khmer

Rouge leaders on trial for their crimes. But it is also a position he has appeared

to contradict, saying in 1998 it was "time to dig a hole and bury the past".

Publicly, most other CPP officials voice their support for a tribunal.

Thong Khon, secretary of state at the Ministry of Tourism and a CPP Central Committee

member, says he is typical of the ordinary CPP members who lost family during the

Pol Pot regime and support a tribunal.

"Eighteen members of my family were killed, and every family was like my family,"

he says. He adds that it is ridiculous to suggest Hun Sen and his "cohorts"

could be tribunal candidates.

"Myself and my friends were saved by the leaders we have now," he says.

"They are not the Khmer Rouge, they came to fight the Khmer Rouge."

Khon disputes the allegation that party members are reluctant to hold a tribunal

and claims that the party has remained united on the subject since the beginning.

"Only the Pol Pot people talk like that," he says. "Many members of

the party lived through genocide and suffered. Through the tribunal we can bring

justice to the people but we must also keep the peace."

Chea Sim, left, and Heng Samrin review People's Republic of Kampuchea troops in June 1980.

Article 1 of the law states that only the "senior leaders" and "those

most responsible" for crimes are to be indicted. That formulation is likely

to lead to no more than ten people on trial for the deaths of 1.7 million Cambodians.

Since that small group did not physically carry out murders themselves, the criminal

case against them will concentrate on the KR "chain of command". UN Legal

Counsel Hans Corell emphasized that point during his Phnom Penh press conference

in March.

"Some of the crimes that are in the picture are very special because you

cannot call a witness who saw somebody do something," he said. "It's more

a question of establishing a responsibility on the part of persons in responsible

positions. A responsibility for what their subordinates did, or how much they knew

about what was going on, and what action they took to stop it."

But a recent paper by the University of London's Heder suggests that the moral and

legal responsibility for DK era crimes should be widely shared. He suggests that

a credible tribunal would also examine the DK-era activities of members of the current


"The senior-leaders formula is historically, legally and morally untenable,"

he wrote in an email to the Post. "To proceed this way is to perpetuate a myth

that killings were entirely driven from above. This is clearly not what happened

in Cambodia, in the Soviet Union or-even-Nazi Germany."

In his paper, Heder argues that the "Nuremberg model", where only the most

senior leaders are held responsible, shields many people with blood on their hands.

He claims that those advocating such a model now and in the past, including the Vietnamese,

the Royal Cambodian Government, the US and the UN, have all "knowingly shielded

'lower-downs' from scrutiny" because those people have held power in all the

governments formed since 1979.

Heder, who in 2001 co-authored a report documenting evidence against just senior-level

trial candidates, wrote that he has reconsidered his position based on new information.

The records show that while orders arrived from the top, they were often ambiguous,

giving subordinates a large degree of autonomy. Heder argues that the "[Khmer

Rouge] killings of enemies were of two broad types: obligatory and discretionary".

It is the latter category he believes which were ordered by rank-and-file officials,

such as district-level party secretaries, often in contradiction with the central

policy of Democratic Kampuchea.

The DK forced the inhabitants of cities, known as "new people", to move

to the rural areas where they were stigmatized, denied food and dealt brutal punishment

for any minor indiscretion. This contrasted with the official policy of the DK that

called on cadre to combine both compassion and compulsion.

"In central theory, the accent was on compassion, re-education and judiciousness.

[However in] local practice, it was on compulsion, repression and ruthlessness,"

Heder writes.

In large part, this implicates many low-ranking cadres in conducting the atrocities.

Some murders were planned and ordered by Pol Pot and Nuon Chea (Brother Number Two

and a likely target of any tribunal) and were carried out via what was clearly a

chain of command. But "other killings-probably most-were committed by regional

and local authorities.

"These lower-downs were certainly not 'just following orders'... making district

party secretaries key figures in responsibility for killings nationwide," he


The party's own evaluation of party secretaries was that they were second in importance

only to Central Committee members themselves. Heder argues that "district authorities

knew that giving this green light for executions was in violation of party policy".

But under the tribunal agreed to by the UN, it is unlikely that any former party

secretaries will face trial. Heder condemns this as a perversion of justice.

"The criteria for prioritizing prosecutions should be the seriousness of the

crimes committed, not the official place in the hierarchy of the alleged perpetrator.

[Although] formally the law allows this, the politico-diplomatic deal that the UN

was forced to accept effectively precludes it," he told the Post.

Chea Sim, Cambodia's Senate President and powerful Chairman of the CPP, has "escaped

scrutiny" for possible crimes committed when he was a district party secretary

of Ponhea Kraek in the DK regime, Heder's paper states. During interviews with local

villagers conducted in 2001, Heder found that Sim's district in Kampong Cham was

the site of thousands of killings during the Pol Pot years.

"The local sources estimate that thousands of people were killed at the district

security office while Chea Sim was district secretary, with the worst killings under

his rule coming in late 1977 and early 1978, just before and just after a Vietnamese

army incursion overran the district."

When the Post visited the area on April 4 of this year, many villagers echoed Heder's

results. People remembered the killings beginning when the KR assumed power. "All

of my five children were killed in 1975," said a 57-year-old woman from the


People recalled that the "new people" were the most vulnerable.

"About 40 members of my family returned from Phnom Penh to our village. All

of them were killed," said another woman, 63, from the same village.

After the Vietnamese invaded in 1978, the new government recruited both DK cadre

and victims of the regime. That members of the post-1979 People's Republic of Kampuchea

government participated in some of the killings was acknowledged at the time in internal


One report noted that the new government included "some who have blood debts,

who have killed with their own hands or issued direct orders to kill... or who made

lists of cadre, party members and the masses and reported them to the higher level

to be killed".

The report equivocated about who actually bears responsibility. It called the issue

"extremely complicated" because some cadres "were compelled to do

things and some did them of their own accord". Heder argues this policy of co-opting

former DK operatives into the new government glossed over previous crimes.

Chea Sim, as Minister of Interior in the People's Republic of Kampuchea, was a skilled

recruiter of ex-Communist Party of Kampuchea (CPK) cadre into the new administration.

"As senior-most ex-CPK in the new administrative apparatus Sim was able to protect

them and others from further scrutiny," Heder argues. By Sim's own account some

10,000 urban evacuees were deposited in Ponhea Kraek but, he claimed, very few were


And Heder would like to see other members of the current government placed under

the microscope.

Heng Samrin, former head of state in the People's Republic of Kampuchea, has also

"escaped scrutiny" despite evidence implicating his troops in massacres

of civilians during cross-border raids into Vietnam. Hun Sen avoided investigations

into allegations against him, although no hard evidence linking him directly to crimes

has ever come to light, Heder concedes.

Heder takes the view that the proposed tribunal is a political compromise that subverts

the search for justice. He describes the protracted UN negotiations as a retreat

from the idea of a tribunal that could indict anyone it found evidence against.

Quoting a 1997 UN memo, he states that UN officials were aware that the scope of

individual accountability for DK atrocities was going to be "a highly contentious

political issue" inside the government.

"Hun Sen reminded Special Representative [Thomas] Hammarberg that the 'et al'

[those other than the senior leaders] must not include anyone who-like Chea Sim,

Heng Samrin and himself-could be credited with having 'helped to overthrow the genocide',"

Heder writes.

But while Heder highlights mainly those who now hold positions in government, many

more would bear criminal responsibility if his formula for understanding the chain

of command was applied. He stresses the role of lower level cadre and ordinary rural

Cambodians-the so called "veteran people"-who were given higher status

by the CPK.

"Evidence suggests that lower-echelon cadre and 'veteran people' had great discretion

in deciding who to denounce and who to kill, and they often denounced and killed

in violation of central policy," he writes.

A young Hun Sen meets the people in an undated photo.

"The prosecutors should be able to follow the evidence wherever it leads, to

people at whatever level," he argues. "The criteria for prioritizing prosecutions

should be the seriousness of the crimes committed, not the official place in the

hierarchy of the alleged perpetrator." This position, Hun Sen has long warned,

is unacceptable to the government.

"If we prosecute all the lower -level cadres, it will mean war," he told

Newsweek in 2001.

Others point out that trying more than a handful of individuals is simply not practical.

Craig Etcheson expresses some "reservations" about Heder's paper.

"Criminal culpability and moral culpability are not the same thing," he

wrote in an email. "As a general principle, I would place no 'cut-off point'

on either criminal or moral culpability. But that's a different question from who

can be prosecuted under the proposed arrangement, or even who should be prosecuted

under any arrangement."

Those "morally culpable" would number "in the thousands... a complete

accounting might go into the low five-figures," Etcheson wrote.

"As a practical matter, it is simply not feasible to try thousands and thousands

of people in Cambodia's circumstances. Cambodia does not have enough lawyers, money

or time to do it," he wrote. "That said, the situation does cry out for

some mechanism to address the culpability of the lower-level perpetrators, to find

some way for them to confess their sins to their fellow citizens and seek social

harmony, both for their own sakes, as well as the sakes of the victims."

Who's who in the CPP

Only a few CPP parliamentarians and members of the powerful 21-member Standing Committee

have a history of supporting the Democratic Kampuchea regime. Several others were

members of the National United Front of Kampuchea (FUNK), the royalist resistance

movement founded in 1970 to fight the Lon Nol regime which fell under Pol Pot's control

in 1974.

Today's most prominent ex-KR are the CPP's three most powerful figures: Prime Minister

Hun Sen; Chea Sim, president of the Senate; and Heng Samrin, honorary party chairman.

All held positions in the Eastern Zone before splitting with the Khmer Rouge and

fleeing to Vietnam.

Hun Sen was first active in the movement from 1968. He spent most of the first year

of the DK regime in a hospital recovering from injuries sustained in fighting in

Kampong Cham. He was the deputy regional commander of region 21 in the Eastern Zone,

but fled to Vietnam in June 1977.

Heng Samrin rose to be the fifth-highest-ranked military cadre in the Eastern Zone

and chairman of a division of troops before he defected in May 1978.

Chea Sim was party secretary and a military commander in the Eastern Zone. He attempted

to rebel against the Communist Party of Kampuchea hierarchy before fleeing to Vietnam

in 1978.

Pol Saroeun, the Deputy Commander in Chief of the Armed Forces and a CPP standing

committee member, was the sixth highest ranked military cadre in the Eastern Zone.

He fled to Vietnam in 1978.

Current Deputy Prime Minister Sar Kheng was a member of FUNK from 1970. In 1976 he

was the CPK's permanent secretary for the Northeast Zone before defecting to Vietnam

in 1977.

Mat Ly, a CPP standing committee member, was appointed to the standing committee

of the People's Representative Assembly of Democratic Kampuchea in 1976. He fled

to Vietnam in mid-1978.

Nhim Vanda, Assembly member for Prey Veng, was a quartermaster in the army of Democratic

Kampuchea throughout the Pol Pot era.

Sim Ka, an MP for Phnom Penh and on the influential CPP standing committee, broke

with Pol Pot in 1978.

Keat Chhon, current Finance Minister, joined the Royal Government of National Union

of Kampuchea in 1970. He traveled to Beijing with Prince Norodom Sihanouk, with whom

he returned to Phnom Penh in September 1975. He then held several positions, including

aide and interpreter for Pol Pot, before leaving the movement in 1983. He returned

to Phnom Penh in 1992.

Several others were involved in FUNK before the Khmer Rouge came to power but split

with the movement or remained in Vietnam after 1975. They include Chea Soth, Men

Sam, Mean Saman, Tea Banh, Bou Thong and Say Phuthong.

Foreign Minister Hor Namhong has been accused of being a member of the Khmer Rouge

on several occasions, and won two libel suits against his accusers.

In a joint letter to the Post in 2000, KR experts Craig Etcheson and Steven Heder

wrote that there was no evidence to support such an assertion.

Namhong, they wrote, was a prisoner at the Boeng Trabaek camp and the "chairman

of the inmates committee".


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