Logo of Phnom Penh Post newspaper Phnom Penh Post - Snatching defeat from the jaws of victory

Snatching defeat from the jaws of victory

Snatching defeat from the jaws of victory


Khieu Samphan, Nuon Chea

"Arrest them! Arrest them!" screamed my friend, who had lost his father,

two siblings and uncounted extended family members during the 3 years, 8 months and

20 days of Khmer Rouge rule - and then endured 13 more years in a refugee camp because

of the acts and policies of the two men who were now smiling at him through the television.

But, there they were. Free men. Khieu Samphan, with his jet-black hair, seeming almost

carefree. Nuon Chea, a smile on his lips, ice in his eyes.

But this was one-way communication. My friend could yell at the television, the medium

of fantasy, but could not be heard. Perhaps this, too, was fiction? Could Hun Sen,

the sworn enemy of the Khmer Rouge, really be smiling with these killers? Weren't

they the subjects of the post-1979 mantra - "the genocidal clique of Pol Pot,

Ieng Sary, Nuon Chea, Son Sen, Khieu Samphan and Ta Mok" - which his government

taught school children to recite? Weren't these the architects of genocide, co-conspirators

in crimes against humanity, the ultimate sadists who carried out the most bizarre

social experiment of the 20th century at the expense of millions of Cambodians?

"Please arrest them," he whispered, tears in his eyes. "If they can't

be arrested, who can be? This can't be happening."

But, unbelievably, it has happened. Once again, Cambodian politicians have shown

gold-medal talent as political gymnasts, performing gravity-defying acrobatic feats

that few, if any, thought possible. No one could have imagined this waltz with the


"Bouquets of flowers" for yesterday's mass killers but continued repression

for today's political opponents. Days after the summary arrest of two human rights

workers from Licadho for defending the right to health of thousands of Sihanoukville

residents exposed to imported toxic waste, the Prime Minister gave mass killers a

hero's welcome and an all-expenses paid tour of the country they helped to destroy.

Try explaining this to a young civics student.

Was this the final nail in the coffin in the efforts to bring the Khmer Rouge to

justice? Have the efforts of Youk Chang and the Cambodian Documentation Center, Thomas

Hammarberg and the UN's "three wise men", and the many Cambodians who have

fought for so many years to bring the Khmer Rouge to justice (particularly members

of the CPP) been in vain?

Perhaps. A cold-blooded, rational calculation might see one conclude that fate is

smiling on the KR, that history has conspired to allow these old men to die in peace

and comfort, convinced that while they may have spilled a little blood, they acted

in pursuit of higher ideals, such as Khmer nationalism and the never-ending struggle

against the bogeyman to the east.

Cambodia's government has provided little hope that justice is possible, showing

itself unwilling and perhaps unable to perform a simple act of justice by arresting

Samphan and Chea.

Yet while the de facto amnesty (there is no other accurate way to describe it) of

Samphan and Chea has certainly been a huge setback - their arrest would almost certainly

have created the dynamic for immediate action to set up an international tribunal

- now is not the time to give up. Regardless of Samphan and Chea, the moral imperative

for action remains.

While in the past two years there has been a great deal of talk about bringing the

KR to justice, the sad fact is that almost 24 years after they came to power the

international community - which did so much to inflict the Khmer Rouge on the Cambodian

people - has still done nothing tangible to address the crimes of this period. And

the Cambodian government has never arrested a single person for crimes committed

during this period, despite the fact that a virtual Who's Who of KR figures - including

Ieng Sary, Chea, Samphan, Ke Pauk, Deuch (prison chief of Tuol Sleng), Mam Nay (chief

interrogator at Tuol Sleng) and Ta Bith (Ta Mok's deputy in the southwest zone) -

now live freely in Cambodia. This cruel joke on the Cambodian people has to be brought

to an end. The only hope is an international tribunal.

It is a shame that instead of grappling with the many serious issues related to the

proposed tribunal, Hun Sen has created a diversion by suggesting that the inquiry

should not be limited to the Khmer Rouge between 1975-1979 but should instead include

the behavior of all who supported the KR or waged war on Cambodia from 1970-1998.

There is no doubt about the responsibility of the United States, China, Thailand

and others for much of the misery of Cambodia since 1970. Without the US role in

the 1970 coup d'etat, support for the corrupt and incompetent Lon Nol regime and

the carpet bombing of Cambodian villages, there is a good possibility that the KR

would never have come to power. When Henry Kissinger asks, as he did recently, "Why

should we [Americans] flagellate ourselves for what the Cambodians did to each other?"

this is the reason. In their mindless attempt to root out the Vietcong from Cambodian

territory, Nixon, Kissinger and the US committed unspeakable crimes in Cambodia and

paved the way for Year Zero. For this there is no question that under international

law the US, Kissinger and senior Pentagon officials should be held accountable.

However, combining these claims with the proposed tribunal for the KR is not serious

- in the same way that the demands by Dana Rohrbacher and Sam Rainsy to include the

alleged crimes against humanity of Hun Sen as part of the tribunal's work are not

serious. Both are politically impossible and divert attention from the prospect of

creating a KR tribunal.

Hun Sen contradicts himself by raising this now. On June 22, 1997 he signed a letter

to Kofi Annan asking "for the assistance of the United Nations and the international

community in bringing to justice those persons responsible for the genocide and/or

crimes aga-inst humanity during the rule of the Khmer Rouge from 1975 to 1979 (emphasis

added)." Since that time, all efforts on a tribunal have been focused only on

this time period and those potential defendants.

Those threatening to expose the responsibility of other nations via the tribunal

act as if this is a hidden trump card which, played at the proper moment, can intimidate

the potential target countries. Too late. The role of external actors in the destruction

of Cambodia is clear and in many respects irrefutable. Nixon was almost impeached

over his "secret" bombing of Cambodia (of course it was not a secret to

those living in the flight paths of B-52s making their bombing runs). The moral indictment

of Kissinger in Sideshow was published 20 years ago, and a whole literature on the

American role in Cambodia has already been written; the interested reader will have

no trouble finding a great deal about the role of China, Thailand and others as well.

China should not take the bait. It has nothing to fear from an international criminal

tribunal, which only deals with the responsibility of individuals. As the chief sponsor

of the KR for at least two decades, China should avoid the appearance of continuing

to provide political support for the KR. If China did not exercise its veto on the

establishment of the tribunals for the former Yugoslavia and Rwanda, there is no

principled reason to do so now.

Likewise, instead of acting to block current efforts, Hun Sen and his government

should consider the interests of the Cambodian people and adopt a three-track approach:

provide unqualified support for an international tribunal to deal with the period

of 1975-1979; file an action in the International Court of Justice to establish state

responsibility for harm to Cambodia from 1970-1975 and the post-KR period (small

countries can succeed against large powers at the ICJ if they have a good case: for

instance, in 1984 Nicaragua won a judgment against the United States for mining its

harbors); and file civil suits on behalf of the Cambodian government and individual

Cambodians in American courts for damages to infrastructure and the loss of life

and property as the result of American bombing between 1970-1975.

If the German and Japanese governments can still be held responsible for war crimes

committed over 50 years ago then it is certainly not too late for Cambodians to receive

compensation, too.

Taken together, these are the only possible means of seeking redress for the atrocious

behavior of the US, China and others towards Cambodia over the past three decades.

An international criminal tribunal is the wrong forum, and any further discussion

of expanding its jurisdiction should be seen as an attempt to wreck the effort.

With the imminent publication of the report of the "three wise men," there

are many issues on which the Cambodian government and international community need

to focus.

Which mechanism of "accountability" should be chosen?

The options are an international criminal tribunal, a national criminal tribunal,

some form of mixed international and national criminal tribunal, a truth commission,

or some combination thereof.

Which would be the best option for Cambodia? A national tribunal can be immediately

excluded, as the Cambodian judicial system is not capable of offering the fairness,

transparency and professionalism necessary to meet international standards. In their

June 22, 1997 letter to Kofi Annan, the co-prime ministers recognized the weaknesses

of domestic courts, stating that "Cambodia does not have the resources or expertise

to conduct a procedure of this significance. Thus, we believe that it is necessary

to ask for the assistance of the UN."

What about a truth commission? The advantage of a truth commission is that, if successful,

it can create a thorough historical record of a period while providing information

to victims about their torturers and to survivors about the fate of family members

who were killed or disappeared. This would be valuable in Cambodia, where surprisingly

little is known about the who, what, where, when and how of the KR regime or the

exact circumstances of the deaths of hundreds of thousands of its victims. A thorough

and accurate accounting is extremely important to avoid the possibility of a twisted

version of history gaining credence among large numbers of Cambodians, particularly

in the absence of any serious presentation of contemporary history in Cambodian schools.

It is frightening to hear otherwise sensible Cambodians whisper that "the KR

were not actually Khmer but Vietnamese agents sent here to destroy the Khmer people."

More information about what really happened is the best and perhaps only antidote

to this plague.

However, for a truth commission to work there has to be a genuine commitment to tell

the truth in exchange for amnesty, the people operating such a commission have to

have the respect of all parties involved, and the public has to be willing and able

to participate. Unfortunately, none of these conditions exist in Cambodia. There

is no reason to believe that members of the KR would be willing or indeed able to

tell the truth. Thus far, all their public statements about the past have been pathetic

denials or non-answers. A regime that survived on a daily diet of lies and self-conceits

for so many years is unlikely to bare its soul in any meaningful manner.

There is also no Desmond Tutu in present day Cambodia who could be trusted by all

sides to maintain impartiality (and even he has been severely criticized by all sides

in South Africa). A Cambodian truth commission is therefore likely to become heavily

politicized, much in the way that the National Election Committee and Constitutional

Council have been seen as partisan. Finally, it is unlikely that average Cambodians,

severely traumatized by the unbroken decades of war, mass killings and political

repression, would risk playing an active role in a truth commission. There would

simply be too much to lose and too little to gain. Poor public participation would

rob a truth commission of its meaning.

This leaves the options of an international tribunal or a hybrid tribunal with both

international and Cambodian participation. In principle, a mixed tribunal would be

a welcome innovation, allowing Cambodians to participate in the tribunal's work and

giving it added legitimacy in the minds of Cambodians. But while this may feel like

the right thing to do, it presents many dangers. First, the sad reality is that most

Cambodians would actually trust a purely international tribunal more than one with

Cambodian participation. In spite of the plethora of wrongs committed by the international

community in Cambodia over 30 years, distrust of government officials dwarfs any

doubts about the motives of foreigners. Second, no matter how independent or fair-minded

a Cambodian judge or prosecutor might be, in the minds of most Cambodians that person

would carry the unrebuttable presumption of being an agent for the government, the

Khmer Rouge or any other side that person appeared to agree with in his or her professional

decision-making (i.e., whoever wins a case).

Having Cambodians in positions of authority could also increase the risk to a tribunal's

independence and integrity. It is entirely possible that Cambodians working for a

tribunal would act as agents of the government, the KR or some other entity, or would

come under pressure to become one. Prosecution plans, the identity of confidential

sources, and the names, location and future testimony of witnesses could be compromised.

In the worst case, the legitimacy of the institution could be called into question.

This is why neither the tribunal for the former Yugoslavia nor Rwanda has nationals

of the country in question working in decision-making positions (imagine the reaction

of Cambodians if the charges against a notorious defendant were dropped for lack

of evidence or procedural irregularity, or the person was acquitted by a panel with

a Cambodian judge or prosecutor - in terms of public confidence, it would be time

to pack up and go home).

The best option is an international tribunal with both the reality and appearance

of total independence and disinterest in internal Cambodian politics. While both

the tribunals for the former Yugoslavia and Rwanda have come under serious and justified

criticism for the slow pace of prosecutions and administrative problems, both have

greatly improved their operations over the past year. In particular, a strong institutional

connection with the tribunal for the former Yugoslavia in The Hague could help a

new tribunal avoid many of the mistakes made by earlier tribunals. In areas like

witness protection, field investigations and assigning appropriate defense counsel

the new tribunal could learn a great deal from the tribunal in The Hague.

Perhaps more important, a tribunal in The Hague would send Cambodians the message

that the international community was finally taking them seriously. This would be

seen to be first-class justice by an institution whose decisions would be considered

beyond reproach by average Cambodians and, one would hope, the Cambodian political

class, too.

2. Where should the tribunal be located?

The tribunal should not be located in Cambodia; first, it would be very expensive,

as new court rooms, offices, and detention facilities would have to be built. Security

would be a concern. The risk of escapes from detention would be greater in Cambodia.

Also, being present in Cambodia would increase the possibility of organized disruptions

of court proceedings and attempts at intimidating judges and prosecutors.

Another concern is the politic-ization of the tribunal's work. If they were in Phnom

Penh, judges, prosecutors and other court officials would risk being pulled into

local politics. The most important person in a criminal trial is the prosecutor,

who has the discretion to indict or close a file. In such a small city it will be

impossible for the prosecutor (and judges) to avoid accepting invitations to dinners,

meetings and ceremonies and crossing paths with Cambodian politicians and diplomats

(who often seem to metamorphosize upon arrival into local politicians themselves).

Familiarity with these figures is a danger, as the former UN Secretary-General Boutros-Boutros

Ghali discovered when he came to Phnom Penh recently - if anyone should know that

genocide and crimes against humanity are internationally cognizable crimes and not

simply the "internal affair" of an individual country, it should have been

him. Boutros Ghali now claims to have been tricked by the local political situation

into making these remarks. If a seasoned diplomat like Boutros-Ghali found the local

political scene beyond his capacity to negotiate, it is a worrisome prospect for

tribunal staff.

One of the most important benefits in holding the tribunal in Cambodia is the access

that Cambodians would have to the proceedings. While important, it is unlikely that

many Cambodians would have the courage or the luxury to attend court proceedings.

Instead, whether the tribunal is in Cambodia, The Hague or wherever, it will be through

television and radio that most Cambodians will be able to follow the proceedings.

The Cambodian government should make a commitment to broadcast all the proceedings.

In turn, donors should agree to fund new television and radio stations for this purpose.

Donors should commit to publish all of the proceedings in Khmer, including a summary

and analysis in language accessible to average Cambodians.

The mandate of the tribunal.

For the reasons discussed above, the temporal mandate of the tribunal should be April

17, 1975 to January 7, 1979, the period during which the Khmer Rouge was in power.

A crucial issue is who the tribunal has the right to prosecute. Many former KR now

in government are apparently jittery over the prospects of a tribunal with a broad

mandate, while others argue that if every killer were subject to prosecution the

process could spin out of control. Donors argue for a narrow mandate for reasons

of political stability, but also because a restricted mandate will mean a much lower

price tag for the whole endeavor.

One proposal has been to limit personal jurisdiction to those with command responsibility,

i.e., "senior members of the KR leadership who planned or directed serious violations."

This is risky as it would allow the actual murderers to argue that they should not

be prosecuted. From Ieng Sary to field commanders, we already know what the standard

defenses will be: "it wasn't my idea, I was ordered to do it," or "everything

was decided by Pol Pot." Duress will be a difficult and legitimate issue to

deal with in some cases. But having too low a rank should not insulate murderers

from prosecution. Lawyers for the defense would have a field day with this language,

leaving judges wrestling with the issue of who "planned or directed serious

violations" instead of who killed who.

The worst case would be a tribunal where by definition only 10-15 people could be

prosecuted. As some are already dead (Pol Pot, Son Sen) and others in poor health,

the the whole process could appear to be merely a show trial of a few senior political

figures. This was already done by the Vietnamese in 1979 and is not worth repeating.

Instead, the killers need to be prosecuted. The standard professional discretion

of a prosecutor should be the only limit for the indictment of a suspect for the

commission of an enumerated crime. If it is a good case with sufficient evidence,

the case should be filed.

The lesson of criminal justice everywhere is that just like politics, all justice

is local. While Cambodians will certainly be pleased if KR leaders are prosecuted,

victims and survivors will also demand that those who pulled the trigger or wielded

the axe be punished too.

How, then, to avoid a bloodletting? Simple. The size of the budget will determine

how many prosecutors, investigators, translators, typists, etc. will be hired. A

given number of personnel can only proceed with a finite number of cases.

The political commitment of the international community.

The biggest concern is the threat by China to use its veto in the UN Security Council

to stop the creation of a tribunal. All other members of the Security Council have

now announced their support for a tribunal. The political commitment of other countries

will be severely tested if China exercises its veto. It would then be up to other

nations to find a creative solution in order to establish a tribunal. While the lack

of a Security Council mandate would create large difficulties, if other countries,

particularly the US, are serious, other routes to a tribunal could still be possible.

The other serious barmoeter of political commitment will be the amount of money offered

by donors in support of a tribunal. This is an expensive endeavor - over $40 million

last year alone for the tribunal for the former Yugoslavia. It is crucial that any

funds not be diverted from development aid that would otherwise be offered to Cambodia.

If these crimes are universal in jurisdiction, then the funds to prosecute them should

not be taken from a general source and not from the victim country's aid.

Gaining custody of indicted defendants.

If a tribunal is ever created, this is the issue that will prove to be the most contentious.

In the former Yugoslavia the main culprit is the security forces of the Republic

of Srbska and the political protection offered to indicted war criminals by President

Milosevic's government. In Rwanda the main problem was neighbor governments harboring

of former Hutu leaders, until last year when Kenya turned over seven indictees, including

the former Prime Minister.

Cambodia faces both problems. One is of its own making: thus far, the Cambodian government

has failed to act against any of the KR living under its control. The recent handling

of Samphan and Chea only confirmed the pattern since the "defection" of

Ieng Sary in August 1996. It is on this subject that the real intentions of Hun Sen

and the Cambodian government will be most severely tested.

If a tribunal is created the cooperation of Thai authorities will be crucial. The

recent denials of the Thai government that Chea and Samphan were ever in Thai custody

are absurd. There is little doubt that Ta Mok is either on Thai territory or on Cambodian

soil under effective control of Thai soldiers. The question is whether the Thai army

(not the Thai government, which has little control in this matter) is willing to

seal the border and arrest any KR under indictment by an international tribunal.

There is little reason to expect Thai cooperation, although it was a slight step

forward when a Thai Foreign Ministry spokesperson recently told the BBC that "we

welcome the demise of the Khmer Rouge movement. Certainly we in Thailand were not

fully innocent in terms of dealing with the KR." This was an unusual admission,

but he then went on to say that the KR "had for realpolitik reasons been at

a certain point in time a buffer against foreign domination, foreign takeover of

Cambodia, ethnic changes in Cambodia, that could have been another form of genocide,

even." The question is whether real-politik of this sort is still alive in the

Thai military.

The bigger problem will be money. Pailin continues to enjoy close business ties with

Thai soldiers and businessmen and is only stronger with the arrival of brothers number

2 and 7.

This is perhaps the most extraordinary aspect of the Samphan and Chea cases. Hun

Sen argued that he had agreed not to prosecute the two in the interests of "national

reconciliation" and to avoid further bloodshed. These are laudable goals, except

that Samphan and Chea were in no position to harm national reconciliation or cause

bloodshed. They were desperate, on the run and in no position to dictate the terms

of their return.

By arresting the two, Hun Sen would have weakened the remaining KR in Pailin. Instead,

he has created a self-fulfilling prophecy by allowing the two to return to "Club

Red" and to re-establish relations with their old friends. Amazingly, the Khmer

Rouge, previously divided, now has the opportunity to reunite, courtesy of the Cambodian

government (ironically, the July 1997 coup was initiated to stop, it was asserted,

this very thing from happening).

Now, if a tribunal indicts any of Pailin's residents and the Cambodian authorities

attempt to act on an arrest warrant, national reconciliation may indeed be in jeopardy

and armed conflict erupt. The Khmer Rouge of Pailin have not integrated into the

government - they have not ceded one gun, one soldier, one inch of land or one dollar

in timber or gem revenues. This is truly an autonomous zone. If their interests are

threatened, the reconstituted Khmer Rouge of Pailin could put up a good fight.

That the famous chess player from Takhmao could have let himself be manouvered into

this position seems incredible.

Lamentably, it is on the way to Pailin that the road paved with the good intentions

of those struggling for some form of justice, however belated, for the Cambodian

people may come to an end.


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