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
devil.
"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.
