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The pragmatics of prosecuting the KR

The pragmatics of prosecuting the KR

This article is to be published in the INTERNATIONAL HUMANITARIAN LAW YEARBOOK. (Asser

Institute, Hague, 1998)

It is generally known that one of the worst acts of mass killings and auto-genocide

occurred in Cambodia between 1975-79 during the Khmer Rouge (KR) regime. It is estimated

that between 1-2 million Cambodians out of a total population of around 7 million

were killed, starved or died of malnutrition and disease. The regime persecuted religious

and ethnic minorities, abolished religion, private property and money and put the

entire population under forced labor. The KR continued many such practices in areas

it controlled during the 1980s and conducted a vitriolic and violent campaign against

the ethnic Vietnamese in Cambodia up to its collapse last year.

Revelations during the last year about the disintegration of the KR have excited

the possibility of prosecuting some of its leaders before an international court.

At the request of the Cambodian government, three experts appointed by the UN Secretary-General

visited Cambodia in Nov 1998 to assess available evidence to determine whether an

international criminal tribunal could be established to try the KR. This modus operandi

was similar to former Yugoslavia and Rwanda, where experts were appointed before

the establishment of ad hoc tribunals by the Security Council.

This commentary describes the events leading up to this and analyzes the options

for prosecuting the KR. It will argue that, contrary to the attitude of some in the

US administration and the human rights community, the likelihood of an international

tribunal, similar to those in Rwanda or former Yugoslavia, as well as of its success,

is fairly low. The best approach for making the KR accountable is a "mixed"

tribunal that has global characteristics, while remaining primarily local in nature.

The international community's apathy towards (indeed, some say complicity in) KR

crimes is well known. Throughout the 1980s, western governments, including the US,

China and ASEAN, propped up the KR and recognized Democratic Kampuchea (DK) as the

legitimate State, despite the fact that it controlled very little territory and people

compared with the Phnom Penh regime. The DK - the Coalition Government of Democratic

Kampuchea (CGDK) - included the KR as its main component. Through the CGDK the KR

occupied Cambodia's UN seat and the UN human rights system remained completely silent

about KR crimes. In the Paris Peace Agreements which established the UN Transitional

Authority in Cambodia (UNTAC), there was no mention of the KR's crimes and no provision

to investigate them. The KR continued to wage a low-intensity war against the new

government after 1993, killing thousands, burning houses and forcibly conscripting

peasants. The new government adopted a "carrot-and-stick" policy to weaken

the KR - passing a 1994 law banning the KR and criminalizing membership in it, while

aggressively pursuing - in violation of that law - an amnesty program for low and

middle-ranking defectors from the KR.

Meanwhile, at least since 1993, the West had gradually shifted its support from the

non-communist members of the CGDK to Hun Sen, the new second Prime Minister elected

after the 1993 election, and the vice-president of the Cambodian People's Party (CPP)

- arch rival of the KR who vilified him as the puppet of the yuon (a derogatory term

for Vietnamese). This shift reflected the new western strategy toward so-called ex-communist

states including Vietnam: engagement rather than containment. As part of this strategy,

the US passed the Cambodian Genocide Justice Act in 1994 which called for US assistance

to bring the KR to justice. Yale University was given money to compile documentation

on the KR crimes. This new strategy was strengthened by the fact that it coincided

with the moral imperative of bringing the KR to justice, which was seriously pursued

by many in the human rights community and the anti-communists in the US administration

and the Congress itself.

While the government's carrot-and-stick policy was moderately successful in getting

many low-ranking KR to defect, the leadership appeared solidly united under Pol Pot

until 1996. In August of that year, Ieng Sary, a senior KR member, defected along

with a retinue of military commanders, bringing a large chunk of strategically and

economically important territory with them. Internecine quarrels between the CPP,

led by Hun Sen, and Funcinpec, led by the 1993 election winner Prince Norodom Ranariddh,

which had been festering at least since late-1994, became much worse with Sary's

defection, with each side attempting to woo him. Sary's defection ignited all the

recent discussions about justice and an international tribunal.

The internal tensions generated by these events widened the rift between CPP and

Funcinpec and deepened serious internal divisions within the KR high command. These

developments had not gone unnoticed by the UN Centre for Human Rights in Cambodia

and the Special Representative of the UN Secretary-General for Human Rights in Cambodia,

Thomas Hammarberg, both of whom lobbied western governments, Cambodian parties and

the UN for a mechanism that would bring the weakened KR to justice.

Breaking its long silence in April 1997, the UN Commission on Human Rights requested

the Secretary-General, for the first time since the KR crimes were committed in the

1970s, to "examine any request by Cambodia for assistance" in relation

to past KR crimes. In November a General Assembly Resolution noted "with concern

that no Khmer Rouge leader has been brought to account for his crimes" and requested

the Secretary-General to "examine the request by the Cambodian authorities for

assistance in responding to past serious violations of Cambodian and international

law, including the possibility of the appointment, by the Secretary-General, of a

group of experts to evaluate the existing evidence and propose further measures,

as a means of bringing about national reconciliation, strengthening democracy and

addressing the issue of individual accountability".

On 21 June 1997 Hun Sen and Ranariddh asked the Secretary-General for the UN for

assistance in establishing an international tribunal to bring the KR to justice.

This was one of the last documents signed jointly by the pair. A violent coup by

Hun Sen overthrew Ranariddh in July 1997. In the weeks preceding the 21 June letter,

Cambodia had been rife with rumors of Pol Pot's capture primarily due to serious

internal fights within the KR leadership, including the execution of Son Sen, a senior

KR leader by forces loyal to Pol Pot. At the same time the human rights community

in Cambodia was actively promoting and lobbying the idea of prosecuting the KR. Twenty-eight

members of the National Assembly belonging to Funcinpec and the BLDP, led by Son

Chhay and Kem Sokha, wrote to the Secretary-General expressing "complete and

unequivocal support" for the June 21 letter of the co-Prime Ministers.

This period had also witnessed media zealotry in the US: that it would send its strike

forces, extract Pol Pot from the jungles and have him tried before the courts of

a third country such as Canada, relying on universal jurisdiction. However this effort

did not come to fruition. Subsequent events showed that the sudden new interest in

bringing the KR to justice was grounded in the self-interest of everyone. Ranariddh

was interested in keeping the KR pressured during negotiations for support, while

trying to woo certain elements of the KR by stating that only the "hard-liners"

bore responsibility for KR crimes. Hun Sen's interest was rooted in the CPP's long-held

policy of weakening the KR. The aggressive and somewhat rash US action for third

country prosecution was, it appeared, either ill timed, incompetently handled, or

deliberately allowed to fail.

This was not an isolated incident of missed or blown opportunity by the US. A primary

objective of US policy towards Cambodia is the establishment of an international

tribunal for prosecuting the KR. However, this was hardly reflected in US diplomatic

practice. For example very recently the US, somewhat hastily and without consulting

any major country or the UN, submitted a draft resolution at the Security Council

for the establishment of such a tribunal, along with a draft charter. The draft Charter

was fundamentally flawed. It called for the trial of only a small number of "senior

KR leaders" - unlike the tribunals in former Yugoslavia or Rwanda, for example,

where Statutes did not limit who can be prosecuted. Obviously, it got nowhere due

to lack of consultation with Cambodia, other countries or the UN and because it lacked

any support from the human rights community. Though this saga of wasted opportunities

could be attributed to bureaucratic inefficiency and political confusion in the US

administration, one gets the impression that the US is either not serious about the

KR crimes or is actively torpedoing any attempt to establish a tribunal. Unfortunately,

the intentions of a small number of people are not enough when judging the conduct

of nations. The results count.

Subsequently, the KR has almost completely disintegrated as a military-political

unit. The notorious Pol Pot was purged, found guilty in a show trial by his erstwhile

comrades, and is now dead. Most of the senior cadre of the KR have defected to Hun

Sen. Meanwhile, the UN High Commissioner for Human Rights and Hammarberg have struggled

to maintain the momentum for the KR's prosecution. However the political turbulence

during 1996-97 that brought the prosecution of the KR within the realm of possibility

has all but disappeared. Hun Sen and the CPP have emerged as the biggest political

force in Cambodia from the July 1998 election and are firmly in control.

Given this political turnaround, it is legitimate to ask: would the effort to establish

an international tribunal succeed? The initial indications are that it would be very

difficult to establish. In addition, assuming that some mechanism of accountability

is politically possible and morally desirable, there are many unanswered questions:

Who in the KR should be brought to justice? How wide should the net be cast? Is it

politically wise and morally acceptable to prosecute a few in return for an amnesty

to others who were also part of the KR leadership? What are the options for bringing

some of these KR to justice, including in particular, the options for an international


There are many issues that emerge from a consideration of the questions posed above.

Those issues may usefully be discussed under the following headings:

The possibility and the desirability of criminal prosecution:

Though there have been a few independent judges and prosecutors in Cambodia, historically

it has never known an independent judiciary as an institution. Accountability of

public officials has not typically resulted from the rule of law, as it is understood

in the West. Instead, the Cambodian political elite has had a purely instrumental

view of law; it is looked upon as either a tool of legitimation or as a method of

consolidating power. As a result trials have traditionally been symbolic events intended

to affirm the rightfulness of the power-holders. This has been particularly true

since 1980 under Vietnamese-trained judges and prosecutors. Not much has changed

during the last few years under UN tutelage. Indeed, one of the key problems in the

administration of justice in Cambodia during the last few years has been that of

impunity, resulting from an inability or unwillingness to prosecute. This is a structural

problem that has existed in Cambodia since the days of Prince Norodom Sihanouk to

the current CPP regime. The impunity of the KR, graver than the rest as it is, fits

the pattern of political elites in Cambodia. Given this reality, it is naive to believe,

as many apparently do, that criminal prosecutions of the KR, per se, will have the

same meaning for Cambodians as prosecutions do for westerners. This, however, does

not mean that Cambodians do not aspire for justice for the KR crimes - they may just

prefer other options that have more meaning for their everyday lives.

As mentioned, between mid-1996 and mid-1997, there was a reasonable window of political

opportunity to bring at least some of the KR to justice. This was made possible by

a unique combination of events: Sary splitting from the KR and being courted by both

Hun Sen and Ranariddh; Ranariddh possibly being interested in strengthening the Sary

faction by pushing for the prosecution of the "hard-liners" including Ta

Mok; Hun Sen aspiring to deal a final blow to the KR by initially seeing Sary's defection

as having weakened the KR; the UNCHR and Hammarberg pushing hard, supported by other

domestic and international human rights groups, for the prosecution of the KR at

what they saw was an opportune moment; and finally, because some of the alleged mass

killers of the KR such as Duch and Chan were living in areas that were under Hun

Sen's control, giving rise to expectations that perhaps, with some pressure, they

could be captured.

However, this window of opportunity was closed with the poorly calibrated Western

response to these events, as well as the July 1997 coup. The Australians, French

and the British showed no interest in bringing the KR to justice, whereas the Americans

made much noise and showed no real willingness to follow through with their rhetoric.

With Hun Sen now in control, the chances of prosecuting the KR appear to be slim.

Hun Sen would see no political benefit in cooperating with a prosecuting body when

he has formed alliances with Sary and a large number of other senior KR cadre. This

is especially so in the aftermath of the 1998 election which the CPP won. No other

political player in Cambodia has the power or interest in bringing the KR to justice.

Given these realities, it is then legitimate to ask: who then has any interest in

bringing the KR to justice? First, the international human rights community, consisting

of activists, NGOs and interested scholars, has long had such an interest. These

individuals and institutions make it clear that bringing the KR to justice is an

issue that goes beyond Cambodian aspirations about rights and wrongs: it is, in the

words of the New York Times, an issue of "law and civilization". To them,

bringing the KR to justice would be an important patch on the international normative


Second, a very sizeable number of Cambodians, both urban and rural, wish to bring

the KR to justice. These Cambodians lost family members during the cataclysm and

have suffered greatly, emotionally and materially. To them, bringing the KR to justice

is a painful but necessary requirement for building a society that is based on respect

for human life, individual accountability of power-holders, and the rule of law.

Without entirely endorsing the instrumentalist approach of the first group of human

rights activists towards the KR, I note that these two groups of individuals and

institutions have established the moral and legal case for bringing the KR to justice

and have generated sufficient momentum towards that end. Consequently, any effort

to bring the KR to justice must seek to satisfy the minimum aspirations of both of

these constituencies. Such an effort must provide the immediate and contextual basis

for building a society that is based on rule of law, while ensuring the development

of the international legal normative framework. Only such a contextual basis will

have a chance of promoting rule of law for the Cambodians, rather than some mythical

rule of law of the purely Western variety that assumes, for example, the autonomy

of legal outcomes. While there should be no illusion about the capacity of this internationalist

experiment to transform Cambodia into a just society, it can play the role of a catalyst

in a complex process of socio-political transformation.

I argue that the only way of doing that is by ensuring two conditions: first, such

an effort to bring the KR to justice must be based in Cambodia; and second, no exceptions

can be granted to any individual, unless a legally valid amnesty or immunity has

been granted, after a full and public disclosure of the facts surrounding the individual's

involvement in any crime. The first condition is essential to ensure that the seeds

of accountability are deeply sown among Cambodian political elite. The second condition

is necessary to preclude Hun Sen or other political players from protecting specific

KR cadre. Under these two conditions, it would then be possible to consider the other

issues as follows.

Temporal jurisdiction of the prosecuting body:

Who in KR should be brought to justice depends heavily on the temporal jurisdiction

of the prosecuting body, in other words, the period within which the crimes were

committed. Confining this period to 1975-79 would result in a different outcome as

opposed to throwing the door open for prosecuting any KR violation during the last

two decades. For several reasons, the temporal jurisdiction must be as wide as possible,

in order to facilitate the building of evidence, including the planning of crimes

such as the forcible transfer of populations in 1975. Otherwise, this would cripple

the ability of the prosecuting body. The temporal jurisdiction of the Rwanda Tribunal,

for example, covers only the period between January 1, 1994 to December 31, 1994

and this was criticized by the Rwandan government as too restrictive. In addition,

the prosecuting body must be able to hear evidence about the political, military

and ideological support given to the KR by China, Thailand and the US. Punishing

the Cambodians while letting the foreigners go free would convey exactly the wrong

message about rule of law that the Cambodians so much want to get over. The one drawback

of this expanded temporal jurisdiction is that it would require the tribunal to prosecute

other Cambodians also, who are guilty of crimes against humanity or laws of war that

were committed during the post-1979 period. Many leaders of the CPP, including Hun

Sen, may then be liable to be prosecuted as well, though this would depend on the

subject-matter jurisdiction of the tribunal. Notwithstanding this difficulty, it

is far more sensible, on balance, to allow an expanded temporal jurisdiction for

the tribunal.

Personal jurisdiction:

Given the almost universal revulsion at the crimes committed by the KR, any prosecution

must aim at casting the net as wide as possible. Deals such as the de jure amnesty

granted by Cambodian authorities to Ieng Sary and the de facto amnesty granted to

other senior KR cadre such as Keo Pauk, do not and cannot prevent an independent

prosecuting body such as an international tribunal from indicting them. In other

words, no matter what political deals are forged inside Cambodia, the commencement

of an international prosecution process will be open-ended. Legally the internal

deals mean nothing in international law. The targets should include not only the

political leadership of the KR in the Central Security Committee but also the second-rung

leadership and senior military commanders, commune-level political and military leaders,

as well as other individuals against whom there is evidence. This could run into

thousands. Those who may claim that it is too dangerous or unrealistic to target

so many, are in fact morally duplicitous and historically wrong. After all - as in

the case of the suspects of the Rwanda genocide (an estimated 126,216 in Rwandan

prisons awaiting trial) - accountability has meant targeting most of the wrongdoers.

Selective prosecution is, in other words, not only morally unacceptable and historically

unfounded, it is also practically impossible for an independent prosecuting body.

The counter-argument, that it would be too expensive or time-consuming to target

so many, simply does not work in the Cambodian context, where the purpose of the

exercise is to drive home the message of accountability. That message is hardly likely

to be sent if only some are held liable.

Mechanisms of accountability - Options:

What are the options for bringing the KR to justice? There appear to be at least

four: national prosecution, some sort of a Truth Commission, Third Country prosecution

and an international tribunal. As the 1995 US State Department study by Steven Ratner

and Jason Abrams concluded, national prosecution is not feasible in Cambodia for

to many reasons. The national judiciary is still in a shambles; the judges and prosecutors

are not independent and have a hard time getting their routine orders obeyed by the

police; the national police is not well-trained and lacks the expertise or the facilities

to conduct investigations into genocide or crimes against humanity; and finally,

the judicial process has no credibility in the eyes of the general public.

A Truth Commission, even such as the South African one which has the option of referring

cases for prosecution, stands very little chance of success due to many of the same

reasons that render national prosecution an impossibility. A key issue here is the

absence of nationally respected figures (such as Bishop Tutu in South Africa), who

could provide legitimacy and credibility to the Truth Commission. The Cambodian political

scene is far too fragmented for this option to work. This does not mean, however,

that recent experience with Truth Commissions could not prove to be useful; for example,

the experience of the El Salvadorian Truth Commission, with local and international

personnel, could be studied more closely to assist in establishing the mixed-tribunal

that I advocate.

Third country prosecution offers the possibility of prosecution by friendly (and

neutral) countries such as Norway or Canada, based on laws that allow prosecutions

based on "universal jurisdiction"; that is, in lay terms, a legal carte

blanch to prosecute anyone who has committed certain specific crimes such as genocide,

anywhere in the world, since they are host's humani generis (the enemy of all people).

This is also undesirable for several reasons: first, it would not satisfy the aspirations

of the Cambodians who wish to see the prosecution of the KR lead to a society based

on the rule of law, since trials in remote places like Canada, would not register

on Cambodian public and governmental psyches. Second, third country prosecutions

would also suffer from a deep lack of understanding of Cambodian society, culture

and government. Third, such prosecutions would find it difficult and expensive to

deal with evidence - both testimonies of individuals as well as physical evidence

such as bones, which are already decaying. Fourth, only a few individuals who can

be taken into physical custody, could be prosecuted, thus leaving a large number

of guilty individuals outside the scope of accountability. Finally, third Country

prosecutions will not have the same neutrality, legitimacy and credibility as an

international prosecution. These have proved to be important factors in other instances

such as Rwanda.

The final option, and one that has been requested by the Cambodian government, is

an international tribunal. There are at least four ways in which this can be done.

First, the subject-matter jurisdiction of the Yugoslavian and/or Rwandan tribunal

can be expanded to include offenses committed by the KR in Cambodia. This appears

to be politically unlikely at the moment (it was suggested that the Yugoslavian tribunal

cover Rwanda and it did not succeed) and operationally complex.

Second, the Security Council of the UN could establish a special tribunal by a resolution

under Chapter VII of the UN Charter, similar to what it did in the case of Yugoslavia

and Rwanda. This also appears politically unlikely as the US recently tried such

a measure and failed. The Chinese may veto such a resolution as they may feel uncomfortable

at the thought of KR revelations about the extent and the duration of Chinese involvement,

in addition to opposing the very idea of international accountability for domestic

violations. The Security Council is also unlikely to find that there is a "threat

to the peace, breach of the peace or act of aggression", as required by the

UN Charter, in the Cambodian case. It was possible in the case of Yugoslavia and

Rwanda (only barely and against some serious opposition) as they were ongoing conflicts.

Third, an "international penal tribunal" provided for in Article 6 of the

Genocide Convention, could be established to try the KR. Cambodia is a party to that

Convention. This solution is both undesirable and unworkable. If such a tribunal

were to be established, its subject-matter jurisdiction would be confined to the

crime of genocide; in the case of the KR, that is hardly adequate as they committed

crimes against humanity as well as grave breaches of international humanitarian law

including the 1949 Geneva Conventions. Furthermore, in the almost 40 years since

the adoption of the Genocide Convention, this tribunal has never been established,

and in many States such as the US, the establishment of such a tribunal may once

again raise political concerns of the specter of criminal prosecution of their nationals

for acts of genocide against native Americans.

The Mixed Tribunal; a proposal for a Gradualist and Minimal Justice:

Finally, the request by the Cambodian government could be directly acted upon by

the Secretary-General (SG) of the UN as a technical assistance request. Under Article

68 of the UN Charter, the Commission on Human Rights (CHR) is under the Economic

and Social Council (ECOSOC). And under Article 98 of the Charter, the SG has to perform

any function entrusted to him by the ECOSOC. As the 21 June 1997 letter of the Co-Prime

Ministers indicates, the April 1997 resolution of the CHR requested the SG to "examine

any request by Cambodia for assistance" in relation to past crimes committed

by the KR. As a result, there appears to be a legal basis for the SG to respond directly

to Cambodia's request, as he has the legal mandate from the CHR (and ECOSOC and therefore

the Charter) already. In many other such requests, the SG has responded routinely

in providing, say, assistance in election monitoring. Why not do the same for an

international tribunal? All that needs to be done is the conclusion of a Memorandum

of Understanding between Cambodia and the UN to work out the technical details and

the adoption of a Charter for the tribunal.

The SG has taken a first crucial step by appointing the three-member expert Commission,

without getting any endorsement from the Security council. What is needed now is

principled and courageous follow-through by the UN, acting through Ham-marberg, to

conclude an MOU with the Cambodian government. The MOU should be preceded by a dual

effort: one on the part of the western countries to encourage Hun Sen to agree to

this process, without preconditions; and two, on the part of the UN to mobilize financial

support for the mixed-tribunal, preferably from Scandinavia, the Netherlands and

Canada. Many of those countries were recently at the forefront of the battle to conclude

the Rome Charter. They should show similar foresight and determination to back this

long-overdue effort to bring the KR to justice.

This solution has several advantages. It fulfils the minimum moral aspirations of

both the constituencies of people that I identified above: the foreign human rights

community as well as affected Cambodians. It does so by ensuring that the KR is brought

to justice inside Cambodia, in a process that significantly contributes to the rebuilding

of a society based on the rule of law in which impunity is gradually eliminated.

In addition, it has the following practical advantages.

First, it avoids the political organs of the UN such as the Security Council, where

any effort to establish yet another criminal court, is sure to perish.

Second, it reduces the response time drastically, as no formal texts need to be adopted

at a multilateral level.

Third, it opens the door for additional financing options outside main UN budgetary

channels (and therefore avoids the political wrangling at the Fifth Committee).

Fourth, it has a very important pre-cedential value, as it demonstrates the way of

rendering justice to victims of human rights violations in similar situations, while

avoiding becoming embroiled in political imbroglios.

To be effective and credible, such a tribunal should consist of Cambodians and foreigners.

Only such a joint composition would ensure that its investigations are effective,

and its decisions are credible and locally-rooted. There are such Cambodians, including

in the non-governmental sector, and it is only their involvement that can turn this

tribunal into an institution that is not merely a foreign imposition. In order to

reduce the politicization of the tribunal, relevant international and local NGOs

must be consulted by the UN and the countries that are involved, while selecting

the personnel for the tribunal.

While it is unclear whether any senior KR leaders would ever be brought to justice,

much advance thinking must be done to prepare the ground for the eventuality of the

prosecution of the KR, however slim its chances. This thinking must be guided by

an informed understanding of the situation inside Cambodia, as well as a conviction

about what is morally warranted. After its multiple moral failures in Cambodia, the

international community owes that much to atone for its mistakes. The US and other

western countries must shake themselves out of "Cambodia fatigue" and cooperate

with the international and domestic human rights community to bring the KR to justice.

The Scandinavian countries and Canada in particular should vigorously pursue the

establishment of this mixed tribunal and provide initial funding for it. The UN,

including Hammarberg, must not abandon hope at this juncture: any progress towards

justice, even if it is minimal and gradualist, is still progress. The Secretary-General

must show determination and principled courage in taking action upon the Cambodian

request, as I advocate above. China must cooperate with the effort, or at least abstain

from opposing it, to atone for its support for the KR and to prevent itself from

having the ignominy of being the lone KR supporter. Cambodian leaders, including

Hun Sen, should actively cooperate with the effort: they have nothing to lose anymore,

and much to gain in terms of legitimacy and a long-term prospect for establishing

the rule of law in Cambodia. Otherwise, the "tragedy of Cambodian history"

- to use David Chandler's words - will forever repeat itself


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