Global Policy Forum

By Raoul-Marc Jennar *

Almost three decades after the fall of the Khmer Rouge, a UN-sponsored tribunal has been set up in Cambodia to prosecute the leaders responsible for genocide. Yet non-Cambodians who share responsibility for the deaths will not be indicted.

Vietnam invaded Cambodia (which the Khmer Rouge had renamed Democratic Kampuchea) in December 1978, after three years of Khmer Rouge attacks on its territory. The world then discovered the mass crimes of the Pol Pot regime (1). The United Nations, the United States, China and their allies responded by jointly condemning a change of regime brought about by foreign intervention: the Cambodians had committed the crime of being liberated from a barbaric regime by an ally of the Soviet Union.

The new People's Republic of Kampuchea (PRK) was not recognised, and the Khmer Rouge's ambassador, Thiounn Prasith, continued to occupy Cambodia's seat at the UN for another 10 years while, inside the country, the Khmer Rouge massacred the population in areas still under their control.

The US classified the Khmer Rouge leaders as "non-communist personalities" (2) to be supported in their struggle against Vietnamese occupation; China and the West rebuilt Pol Pot's army in Thailand. In 1979 the UN Commission on Human Rights refused to consider a report containing 995 pages of testimony on mass violations of basic rights in Kampuchea. For 10 more years the UN rejected all efforts by the PRK, by survivors such as Dith Pran (3) and by human rights activists such as David Hawk, to bring the Khmer Rouge leaders to justice.

Peace negotiations began in 1989. Because of the desire to involve the Khmer Rouge (which led to the failure of the UN's attempt to pacify Cambodia), the crimes of the Pol Pot regime were passed over. The terms "crimes against humanity" and "genocide" were banned from all official documents. The Paris Accords of 1991 employed the phrase "policies and practices of the past" to denote what was in fact the extermination of nearly a third of the Cambodian population.

A trial is a necessity for the survivors now demanding justice: the crimes in question have never been tried by a neutral and impartial court. The resulting impunity is intolerable. How can there be justice in ordinary affairs when the greatest criminals go free? The field is wide open for revisionists of all shades. What the absence of justice can lead to became clear in 2004 when the head of one of the three parties represented in Cambodia's National Assembly congratulated the Khmer Rouge movement on "its action over the last 30 years".

Kampuchea was in fact tried by a "revolutionary people's court" in 1979, in the person of two of its leaders, Pol Pot and Ieng Sary, the deputy prime minister and minister of foreign affairs. Both were sentenced to death in absentia. But that trial, which gave many survivors an opportunity to testify, is tainted in the collective memory of the Cambodian people by the fact that it was held under Vietnamese influence. Until the movement's demise in 1998, the Khmer Rouge continued to claim that the massacres perpetrated by the Pol Pot regime had been carried out by the Vietnamese. That claim still provides a satisfactory explanation for the young in a country where 51% of the population is under 18.

A step forward

It is a positive development that the trial, finally decided on by the Cambodian government and the UN in 2003 and scheduled to begin in 2007, will be held in Cambodia and in the Khmer language.

In a letter of June 1977 to the UN secretary general, the Cambodian authorities requested "the assistance of the UN and the international community in bringing to justice those responsible for genocide and crimes against humanity during the period of Democratic Kampuchea", with the aim of "establishing the truth" and "trying those responsible". The UN General Assembly acceded to that request at the end of the year. But it took seven years of negotiations to overcome the difficulties.

The UN proposed an international tribunal but Cambodia wanted a Cambodian court assisted by foreign judges and advisers. In response, the UN demanded compliance with international judicial standards, guarantees of the arrest of suspects identified by the court and the involvement of international judges at all stages of the proceedings. The problem was that all Cambodian judges are both judge and party to the case, since they are all survivors of the Pol Pot regime and relatives of its victims. The Cambodian judiciary, rebuilt after 1979, has obviously not yet achieved a satisfactory level of competence and independence.

A law passed in 2001 was amended in 2004 to make the proceedings of the "extraordinary chambers in the courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea" acceptable to the UN. All indictments will be the joint responsibility of a Cambodian prosecutor and a foreign prosecutor proposed by the UN, each assisted by an investigating magistrate of the same nationality. The trial court will have three Cambodian and two foreign judges, and its decisions will require the affirmative vote of four judges. The Supreme Court will have four Cambodian and three foreign judges, and its decisions will require five affirmative votes. So the agreement of a foreign judge will be required in all cases.

It took two more years for the UN and the Cambodian government to raise the $56m budget, and for the judges (17 Cambodian and eight foreign) to take up their duties. Suspects will be prosecuted for breaches of Cambodian criminal law in force in 1975, international law on human rights, and international conventions ratified by Cambodia. The court will also be competent to try crimes of genocide, crimes against humanity, war crimes and violations of the Geneva Conventions on which international human rights law is based. It can also try breaches of the Hague Convention on the protection of cultural property.

Genocide contested

Some people dispute that genocide happened. Yet the use of that term seems unquestionably justified in the case of the extermination of nearly 40% of the Muslim population, the Cham, for no other reason than that they were Cham. It also seems justified in the case of the thousands executed for not having "a Khmer soul in a Khmer body", meaning people of Thai-Khmer or Sino-Khmer parentage, and especially Vietnamese-Khmer people who were suspected of sympathising with Vietnam.

Members of Pol Pot's government, of the leadership of the Communist Party of Kampuchea (Angkar, "the organisation"), of the security forces (Santebal, the political police) and of the S-21 torture and execution centre are still alive. These include Khieu Samphan, head of state; Nuon Chea, known as Brother Number Two, who was Pol Pot's closest associate, the head of Angkar and the regime's second-in-command; Ieng Sary, who was the deputy prime minister; Khieu Thirith, who was Ieng Sary's wife, Pol Pot's sister-in-law, a minister and member of the central committee; Thiounn Mumm, a minister; Keat Chhon, another minister (4); and Thiounn Prasith, who was ambassador to the UN and the man who knows most about the US role in supporting the Khmer Rouge from 1979 to 1990. Kang Kek Ieu, alias "Duch", the head of Centre S-21, is also still alive; as are Sou Met and Meah Mut, the commanders of the air force and the navy. Except for Thiounn Prasith, who appears to be under US protection, all are currently living in Cambodia.

But will they all be investigated with a view to indictment? Doubts arise because of the nature of the pacification process from the departure of the UN in 1993 to the surrender of the last Khmer Rouge stronghold in 1998. Ieng Sary went over to the government side in 1996 and was granted a royal amnesty for his 1979 conviction. Khieu Samphan and Nuon Chea gave themselves up at the end of 1998. Sou Met and Meah Mut have joined the Cambodian armed forces. Only Duch is in prison. The number and status of those who are prosecuted will be a major indication of the trial's credibility.

Another question is whether the investigating prosecutors will ask for Angkar, the regime's supreme administrative organisation, in whose name the massacres were carried out, and Santebal, the political police, to be declared criminal organisations. Or for the standing committee of the Communist Party of Democratic Kampuchea, which decided on and planned the massacres, to be declared such an organisation. If so, it will be possible to indict any person on the grounds that he was a member of one of those organisations 27 years before the trial investigation began this July.

Pol Pot, Son Sen, the minister of defence and the man in charge of Santebal; Yun Yat, a minister; Thiounn Thieunn, a minister; Ta Mok, a military commander; and Ke Pauk, who was Ta Mok's second-in-command, have all died, having enjoyed the protection of the international community from 1979 to 1993. Son Sen was a member of the supreme national council established by the Paris Accords of 1991 and the designated embodiment of national sovereignty during the transition period.

The US accepted the principle of a trial on condition that the court's jurisdiction be confined to crimes committed in Cambodia during the period 17 April 1975 to 6 January 1979. Foreigners who share responsibility for the tragedy before and after the period of Democratic Kampuchea will not be indicted. No Thai civil or military leader will stand trial, although Thailand constantly interfered in Cambodian affairs from 1953 onwards, spared no effort to destabilise the neutral Cambodian regime before 1970 and served as a rear base for Pol Pot's army from 1979 to 1998.

Singapore was the hub for supplies to Pol Pot's army after 1979, but its leaders will not be brought to book. Nor will the European governments, led by Britain, that supplied arms and munitions to the Khmer Rouge from 1979 to 1991. Nor Henry Kissinger, for his responsibility in illegal bombings from March 1969 to May 1970, the coup of 18 March 1970 that overthrew Sihanouk, and the invasion of Cambodia in April 1970. Nor US President Jimmy Carter and his national security advisor Zbigniew Brzezinski, who in 1979 chose to condemn the liberation of Cambodia by Vietnam, impose a total embargo on Cambodia and support the rebuilding and supply of Pol Pot's army (5). That preference remained the choice of the Reagan and Bush (Sr) administrations until 1990.

About the Author: Raoul Marc Jennar holds a doctorate in Khmer studies from the National Institute of Eastern Languages and Civilisations and is author of ‘Les Constitutions du Cambodge: 1953-1993' (La Documentation Franí§aise, Paris, 1994) and ‘Cambodge: une presse sous pression' (Reporters sans frontií¨res, Paris, 1997)

(1) Pol Pot (1925-1998), real name Saloth Sar, was the leader of the Khmer Rouge and prime minister of Democratic Kampuchea, now Cambodia, from 1976 to 1979. His policies caused the deaths of nearly 2 million people.

(2) CIA memorandum to US personnel of the UN mission to Cambodia, JPRS-SEA-92-008, 20 April 1992.

(3) Cambodian journalist for the New York Times from 1973: his story was told in Roland Joffe's film The Killing Fields (1984).

(4) The only one of Pol Pot's ministers who is a minister today, for economy and finance. There is no evidence linking him directly with arbitrary executions, and he has said he is willing to explain himself in court.

(5) See Christopher Hitchens, The Trial of Henry Kissinger, Verso, London, 2001, and Nayan Chanda, Brother Enemy, Collier, New York, 1986.

Translated by Barry Smerin