Time and again I have heard asked of others and of me: What's the point of holding
this Khmer Rouge Trial (KRT)? Does this KRT matter? Particularly when so many years
Yes, the KRT matters. Yes, the KRT has limitations. To be fair, there exist limitations
to any criminal process - be it in the United States, Germany or Japan - no matter
how advanced and sophisticated the country's legal system.
Unreasonable and False Expectations
But before I explain the constraints of criminal trials, let's first establish what
it is we would like to have the KRT accomplish: to bring about justice, truth, peace,
healing, and reconciliation. Particularly through our public forums on Justice &
Reconciliation, the Center for Social Development (CSD) repeatedly hears these sentiments
by Cambodians. But one doesn't need to venture far from Phnom Penh to hear these
utterances echoed time and again, and not only from the mouths of Cambodians but
also in both national and international media from print, to radio, to film. These
attributions placed on the KRT create immensely high expectations and establish false
hopes, doomed to failure.
Limitations of Criminal Trials
Why? As a lawyer, I know every criminal proceeding is limited in scope, and much
more so in light of the additional limitations surrounding the KRT.
First, there is the problem of human nature. I am sorry to inform you: we're flawed,
even the best of us, and prone to commit errors. So, out goes perfect justice.
Second, there exists the inherent selectivity of trials, particularly of international
crimes. The issues of time period, subject matter, and persons speak to the jurisdictional
limitations of these trials. At what level do we focus on the perpetrators: at the
commander level, and over ten or 1,000 or 10,000 people? Or the follower-executor
level? How many people must s/he have killed to make him/her a mass murderer? Or,
how do we determine which crime(s) to charge a defendant with in relation to available
evidence and plea bargains? The number and nature of cases, the type of court and
funding further restrict what can be accomplished in terms of the "administration
Third, the mandate of a trial is narrowly circumscribed. By its very nature, a
criminal trial focuses on perpetrators, not the victims, and it only answers the
narrow question of "What happened?" or "Who did it?" So it only
answers the question of "what" and not the "why" that we hear
so many Cambodians asking.
Bringing about healing, peace and/or reconciliation are not the principal aims of
a court. Practically speaking, the mandate of a trial is to find enough evidence
to convict or to let go.
Thus, the KRT must be viewed within the fundamental nature and context of trials
of international crimes, in addition to its particular constraints of geo- and national
politics, judiciary capacity and independence, the passage of time and the politicization
of them all.
The Necessity of Outreach
Consequently, we must look to other mechanisms in addition to the KRT to address
the desired goals of truth, justice, peace, healing and reconciliation. We, at CSD
and other civil society organizations, believe "outreach" to all Cambodians
is a first and fundamental part of any process to address these issues, as all Cambodians
to varying degrees are still affected by the KR atrocities and must be engaged in
any and all processes.
For us, in addition to monitoring that the KRT does not fall any further below sub-standard
of justice and to scrutinizing this legal process, we hold other values to be as
important, if not more important, and that is engaging the Cambodian people. Undoubtedly,
we would like to see the KRT as a legal process succeed in spite of all the delays
and politicking. However, more significantly, the KRT serves as an excellent catalyst
to address other issues, such as justice, peace, healing, and reconciliation. The
concentration of time, the concentrated national and international attention and
scrutiny provide opportune occasions for long overdue discussions among ourselves
as Cambodians and with other interested parties.
Goals of Outreach
and What We Learned
Draw Out Cambodian Voices. One of the principal goals of outreach is to engage
the common Cambodian to tell his or her story in light of the KR years. Through these
expressions, we can better understand how to restore dignity of victims (a memorial?),
to provide remedy for victims (compensation, apology?), to bring about personal healing
and national reconciliation, to mark a break with the past and to restore trust.
These voices will help to create a more durable peace. It is natural not to want
to open old wounds of the past for fear of breaking the existing fragile peace, but
true peace is active and works to break the cycle of violence and conflict.
Dialogue, Information Dissemination. Another principal goal of outreach is
to disseminate clear, basic, objective information, ie, an accounting of history,
regarding the Khmer Rouge years, to acknowledge the crimes committed, to reaffirm
norms based on the rule of law, and to discuss the legacy the KR left in its wake
to the present day, and the legacy we would like to create for the future as a result
of these dialogues, outreach and KRT.
Management of Expectations. As stated earlier, the demands and expectations
placed on the KRT are high; the possibility of them being realized is low. Hence,
it is our onus as civil society to manage the expectations of Cambodians by imparting
realistic, objective information and by addressing potential misunderstandings.
Civil society has begun the process of reaching out; we anticipate it to be a long
process. We understand the burden placed on us in terms of the weight of responsibility
and vast needs for effective, sensitive, thoughtful outreach on topics that are very
fresh and potentially, emotionally explosive.
Theary C Seng
CSD Executive Director