In 1993, Cambodian history turned a very significant corner with the promulgation of a new liberal constitution aimed at moving the country forward from its turbulent past. Many challenges remained, however; one of which was how to deal with the most horrific crimes of the “despicable Pol Pot” regime (1975–79)—as Cambodians called it—during which the radical pursuit of utopian revolutionary ideas cost roughly two million Cambodians their lives. Searching for mechanisms to hold perpetrators accountable for their crimes is seldom simple, as this essay, an assessment of the Khmer Rouge Tribunal twenty years on from the founding of the new Cambodian state and thirty-four years after the fall of the Pol Pot regime, attests. The Khmer Rouge Tribunal, whose formal name is the Extraordinary Chambers in the Courts of Cambodia (ECCC), was established in 2006, providing the first hope that Khmer Rouge leaders would finally be brought to justice and held to account for their hideous crimes.
The stated purpose of the Tribunal is to seek retributive justice, to learn the regime's motives, to promote national healing and reconciliation, and to serve as a model for a more transparent and fair system of justice. Against the backdrop of these objectives, and with the Tribunal plagued by allegations of mismanagement and the subordination of justice to national and political interests during its creation and operations, some analysts have questioned the legitimacy and usefulness of the Tribunal.Footnote 1 To some Western commentators, supporting the Tribunal is to justify a form of victor's justice where the winner is the Cambodian government.Footnote 2
While sharing these frustrations, and recognizing the Tribunal's many flaws, this paper argues that the Tribunal is not a completely flawed affair as characterized by the skeptics. Rather, in a politically compromised search for justice, the presence of pluses and minuses will be inevitable. To analyze the Tribunal's mixed outcomes, the paper first discusses the major criticism of government interference in the Tribunal and the impact this has on the Tribunal's search for retributive justice, the promotion of the rule of law, and national reconciliation. Second, it argues that the Tribunal offers a platform for learning the regime's motives and for advancing the compilation and teaching of the history of the Khmer Rouge genocide. Third, it discusses the Tribunal's possible spillover effects on Cambodian civic space via the emergence of various nongovernmental organizations (NGOs) working on issues related to the Tribunal.
Political Interference
In order to examine why the Tribunal will inevitably produce mixed outcomes, it is necessary to examine its historical development. The negotiations that led to the creation of the Tribunal centered on the nature of the court and the number of potential defendants. From the outset, the Cambodian government sought to restrict the UN's influence on the Tribunal as a way to protect Cambodia's sovereign rights and to address the concern that the investigations could implicate some current CPP leaders who were former middle- and low-level Khmer Rouge commanders. Initially the government demanded that the trials be conducted in the Cambodian courts. The UN objected to this demand. After years of prolonged and distrustful negotiation, the UN and the Cambodian government reached an agreement to create a hybrid body consisting of parallel international and Cambodian judges and prosecutors wherein decisions had to be agreed to by a supermajority. In practice, when judges split along factional lines no supermajority can be formed and thus a deadlock is certain. On the issue of potential indictments, even though the two sides reached a compromise that limited indictments to those “most senior and most responsible,” they failed to spell out a clear definition of the terms. Failing to secure the Cambodian government's commitment to well-defined categories of who was “most responsible” and “most senior,” the United Nations temporarily withdrew itself from the negotiation process, arguing that the Tribunal would be compromised due to government interference.Footnote 3
Pressure from Western countries, particularly the United States, led the UN to finally endorse the agreement that contained no specific definition of the key terms. It was hoped that international leverage on the Cambodian government would help achieve the UN's goal of objective, evidence-based prosecutions. As anticipated, disagreement emerged between the Cambodian government and the United Nations over these key issues. While the Cambodian government wanted a minimalist interpretation of the phrase, meaning a small number of indictments, the United Nations favored an interpretation wherein the number of indictments would depend on the evidence.
The first phase of the trial involved the prosecution of Kaing Guek Eav, better known as Duch, in Case 001. He was found guilty on charges of crimes against humanity, enslavement, torture, sexual abuse, and war crimes. Duch was sentenced, after an unsuccessful appeal by his lawyers, to life imprisonment. Although he expressed remorse and accepted responsibility for the deaths of more than 12,000 people at S-21—the torture and execution center he ran during the reign of the Khmer Rouge—Duch argued before the court that he had no choice but to follow orders in order to save his own life and that of his family. The trail of documents from S-21 and academic research proved that Duch was a dedicated revolutionary, and an enthusiastic manager who designed the torture, execution methods, and processes inside the nightmare that was S-21.Footnote 4 Despite some limitations—such as allegations of corruption within the Tribunal, mismanagement, and criticism over his initial lenient sentence—the Asian International Justice Initiative noted that the trial of Duch was “conducted in accordance with generally accepted standards of due process in international criminal tribunals.”Footnote 5
The second trial, Case 002, prosecutes the most senior surviving Khmer Rouge leaders—Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith.Footnote 6 This is a complicated case involving over 350,000 documents; four different defense teams; and uncooperative defendants who, while denying responsibility for their regime's mass killings, attempt in their defense to broaden the blame for the atrocities to other leaders and foreign governments. The second trial commenced in June 2011 amidst allegations of government interference in the Tribunal wherein six of its senior officials (who were middle- or low-level Khmer Rouge leaders) were not allowed to testify as witnesses during the investigation and trial.
A more serious allegation of government interference in the Tribunal involves proposed Cases 003 and 004, whose potential defendants are former mid-level Khmer Rouge leaders. The Cambodian prosecutors and judges argue that Cases 003 and 004 do not fall under the Tribunal's jurisdiction because they were neither “most senior” nor “most responsible.” Such judicial reasoning by Cambodian judges and prosecutors is seen as contrary to the opinion of expertsFootnote 7 and therefore is viewed as politically driven by many journalists, human rights activists, and scholars. The most controversial allegation of political interference concerning Case 003 surfaced when the international co-prosecutor, Andrew Cayley, alleged that both the Cambodian and international co-investigative judges had failed to conduct appropriate investigations as part of a premeditated plan to drop the cases in the face of government opposition. The Open Society Justice Initiative referred to this process as the “politically-determined dismissal of politically-opposed cases.”Footnote 8
The Cambodian government has publicly opposed any attempt to expand the universe of defendants beyond Cases 001 and 002, arguing that such expansion could lead to renewed civil war. Proclaiming his objection to any expansion, Prime Minister Hun Sen said, “Let's try these few senior leaders. No more, I am sorry. I tell you that I would prefer the court to fail. But I won't let war happen. If it fails, let it fail.”Footnote 9
The argument that prosecuting the remaining five individuals will lead to civil war is feeble. As the younger leaders of the Khmer Rouge movement, and people under their control, have integrated into the wider Cambodian society and benefited from the peace, the likelihood of their support for any attempt at renewing civil war is improbable. It is clear that the government's refusal to support expansion of the universe of defendants has more to do with efforts to limit international leverage on domestic politics. In addition, recent developments in Cambodia's external relations offer the government the opportunity to do so. First, it has won over a new patron—China—which has offered generous financial assistance without strings attached. Second, the United States has shifted its policy from demanding respect for human rights to focusing on anti-terrorism and anti-drug trafficking policies, partly in response to China's influence in Cambodia. These developments undercut international pressure and thus allow the Cambodian government to intervene in restricting the Tribunal to Cases 001 and 002. This in turn reduces the United Nations' presence and involvement in legal and human rights issues in Cambodia—an engagement that could potentially have interfered in the ruling party's ongoing consolidation of power.
A thorough review of the negotiation process and Cambodian leaders' views towards the universe of potential indictments reveals that it is reasonable to believe that Prime Minister Hun Sen, at various stages, supported the idea of holding some form of international tribunal to prosecute former Khmer Rouge leaders. Indeed, at one point he had on his list eight to ten potential former senior Khmer Rouge leaders as possible defendants.Footnote 10 Therefore, some critics charge that the failure of the UN and Western donors to stand firm on evidence-based prosecution is humiliating, and others have called for the withdrawal of the international community from the Tribunal.
National Reconciliation and Justice
It is fair to state that the government's interference prevents the Tribunal from honoring its self-ascribed aims. It is important, however, to understand the government's reasons behind its interference and how they reflect broader popular views. Given the physical and psychological trauma Cambodians endured during the decades of upheaval, Prime Minister Hun Sen's claims about the potential for instability that would occur through the expansion of the indictments beyond Case 002—that it could destabilize the hard-won peace, economic growth, social order, and political stability—have a legitimate logic to many older Cambodians. In surveys conducted by Phuong Pham et al. at the University of California, Berkeley, a majority of Cambodians deemed it more fruitful for society to focus on the country's current problems—jobs, social services, healthcare, and food—rather than crimes committed under the Khmer Rouge regime. Indeed, the majority increased from 76 percent in 2008 to 83 percent in 2010.Footnote 11 Achieving the right balance between seeking retributive justice for past crimes and meeting the current needs of the people was a dilemma even for the recently deceased Vann Nath, one of the few survivors of S-21. Commenting on Cambodia's dismal system of medical care while suffering from tuberculosis of the spine, Mr. Vann said, “When Cambodians have real healthcare, they will have real justice.”Footnote 12
Yet at the same time, there is public support for the Tribunal. For instance, although the majority of the Cambodian public have low levels of trust in their domestic courts, they do seem to trust the Tribunal. Statistically, the percentage of Cambodians who believed in the Tribunal's neutrality and fairness was high and increased from 67 percent in 2008 to 75 percent in 2010.Footnote 13
It has been asserted—particularly by Western analysts—that to limit the trial to Cases 001 and 002 would thwart efforts at national reconciliation. Arguably, pushing the argument to hear more cases may not help the cause of national reconciliation either. For many Cambodians, and for the Cambodian government, the notion of reconciliation means reestablishing national unity without opening old wounds. In other words, “if the wound does not hurt,” Prime Minister Hun Sen has repeatedly stated, “don't poke it.” This line argues that retributive justice is not a remedy for national reconciliation because it creates new social and political rifts. Since the defeat of the Khmer Rouge as a guerrilla movement in the late 1990s, many Cambodians have already reconciled with former members of the Khmer Rouge military and their families, many of whom have integrated into mainstream society. Even if the idea that retributive justice might help heal the nation is correct, there remains the fundamental problem of how far down the list of suspects the Tribunal should go to achieve this objective given that there are potentially thousands of instances where victims and perpetrators cohabit communities across the country. As one judge at the ECCC said, “We prosecuted Duch because he was responsible for 12,000 deaths. Does this mean that it is fine for those who were responsible for any acts that led to fewer than 12,000 deaths?”Footnote 14
More interestingly, the majority of Cambodians, even with the prospect of Cases 003 and 004 in doubt, were already optimistic about the impact of the Tribunal. The percentage of those who believed that the Tribunal would help promote reconciliation rose from 67 percent in 2008 to 81 percent in 2010; to build trust rose from 71 percent in 2008 to 82 percent in 2010; and to bring justice to the Khmer Rouge victims and/or their families rose from 74 percent in 2008 to 76 percent in 2010.Footnote 15
Critics of the Tribunal asserted that allowing the government to interfere in the Tribunal would severely limit the Tribunal's supposed positive spill-over effect on the national justice system. Some argue that the Tribunal, when properly managed and free of political interference, will serve as a model of independent justice. As a hybrid court the tribunal operates within the domestic legal system that applies a compound of international and national laws. This process allows the personnel of the Cambodian legal system to interact with Western legal codes and norms. Such interaction, Hirschl argues, helps lead to judicialization—an increasing role of the judiciary in shaping politics and government policy.Footnote 16 Arguably, the Tribunal could help end the culture of impunity and promote the rule of law within Cambodia. It is hoped that Cambodian judges, prosecutors, and clerks will bring good practices—including due process, impartiality, and legal reasoning—to the Cambodian judiciary upon the completion of their missions at the Tribunal. Given the unfairness and injustice that the current judiciary metes out to the poor and the powerless, the hope of such spillover, no matter how distant, is desirable.
However, this desire needs to be placed in the context of contemporary Cambodia. The government is well aware of the concept of judicial independence and its implications on its grip on power. Therefore the government's resistance to and manipulation of external intervention is inevitable. A parallel development has been seen regarding international efforts at promoting human rights, democracy, and the rule of law,Footnote 17 and some observers rightly point to the ineffectiveness of international intervention in Cambodia in these areas despite billions of dollars of aid.Footnote 18 Such assessments often overlook the emergence of new discourses—on such themes as human rights, democracy, accountability, responsibility, transparency, and rule of law—that were unheard of before the international intervention under the auspices of the United Nations in 1993.
Nevertheless, the desire to maintain power and the belief in contextual particularity—which rejects the belief in the universality of human rights and Western legal concepts—is clearly discernable in over two decades of struggle between the Cambodian government and the international community on the issue of judicial reform. Because of these reasons, as well as the Cambodian courts' embeddedness in the existing political system wherein the rule of law is subject to patronage politics, the impact of the Tribunal on the overall Cambodian judiciary has been minimal and it is unlikely to bring any substantial change in the way the local courts operate.Footnote 19 However, some limited positive outcomes could emerge through dialogue and exchange. Cambodian judges and prosecutors at the Tribunal have observed some good practices adopted by the Tribunal that have not been previously witnessed in the domestic courts.Footnote 20 Ongoing projects run by the Cambodian Human Rights Action Committee and the Office of the High Commissioner for Human Rights promote dialogue and exchange between judicial officers and lawyers working with the ECCC and Cambodian legal personnel. These dialogue and exchange programs could generate some awareness of good judicial practices if not yet their application.Footnote 21
The Teaching of Democratic Kampuchean History
As discussed above, one of the often overlooked benefits of the Tribunal is to provide a historical account of the facts and motives surrounding the Khmer Rouge regime. Because of the Khmer Rouge's tight restrictions on movement and communications, survivors were aware only of atrocities at their locations but not of the wider national patterns. The subsequent regime—the People's Republic of Kampuchea (1979–89)—put forward explanations for mass violence committed by the Khmer Rouge. They included the People's Revolutionary Tribunal in 1979 that sentenced Pol Pot and Ieng Sary to death in absentia, mass media campaigns, and school textbooks. Packaged as mass propaganda, these explanations centered on condemnation of the Khmer Rouge and global geopolitics, aimed at exposing the West's hypocrisy on human rights given the support Western powers, the United Nations, and China offered to the Khmer Rouge after their fall from power. The question of how and why the Khmer Rouge killed so many of their fellow countrymen was never adequately or objectively addressed in these past narrations. The Tribunal has invited victims to tell their stories in court and for perpetrators to defend their actions—as such, they are both agents in constructing a history of the period.
In the past, many Khmer Rouge survivors turned to religion and religious prophesy to explain their suffering and the fate of the perpetrators. The bloodbath during the Khmer Rouge regime was predetermined, many survivors believed, as fulfillment of widely known Buddhist prophesies—the Buddh Damnay. To understand their suffering and the atrocious violence under the Khmer Rouge period, many Cambodians cite lines from this prophesy: “blood (or corpses) will reach the belly of the elephant; there will be houses in which no one will live and roads upon which no one will travel; people will fight over a single grain of rice stuck to the tail of a dog.”
These images have become central to many Cambodians' understanding of the Khmer Rouge period as fulfilling these Buddhist predictions.Footnote 22 Partly because of the failure to bring the perpetrators to account for their actions, and partly as the result of their own Buddhist beliefs, many of these survivors believe that the fate of the perpetrators will be determined by Karmic justice. This belief in Karmic justice also helps to explain how so many Cambodians have lived peacefully for decades in local communities with the low-level perpetrators. In such explanations, justice will come when perpetrators suffer in their next lives.
Addressing the Khmer Rouge history in the national school curriculum was compromised by the divisive CPP-FUNCINPECFootnote 23 coalition government formed following the 1993 UN-sponsored elections. To avoid the sensitive issues of the CPP and FUNCINPEC's respective affiliation with the Vietnamese occupation of Cambodia and the Khmer Rouge in the 1980s, the coalition government agreed to exclude discussion of the Khmer Rouge atrocities and the Vietnamese occupation of Cambodia from school textbooks. The absence of Khmer Rouge history in school curricula, compounded by many parents' reluctance to discuss the era with their children, shielded a whole generation of Cambodians from learning about Khmer Rouge atrocities. Today 70 percent of Cambodia's 14 million people were born after the fall of the Khmer Rouge; of these only 6 percent of respondents in a national poll stated that they had learned about the Khmer Rouge atrocities from school.Footnote 24 The Cambodian public wants to know more about the Khmer Rouge; in 2011, 93 percent of Cambodians concurred on the necessity of finding the truth about what happened under the Khmer Rouge rule.Footnote 25
Given the context discussed above, the Tribunal does a great service in responding to the Cambodian yearning for truth. We can already see the positive effects of the Tribunal when 57 percent of respondents claimed that the Duch trial had increased their knowledge of the Khmer Rouge regime.Footnote 26 The Tribunal may help change habits of mind of many Cambodians towards the idea that not all things are predetermined and that certain events, such as the Khmer Rouge atrocities, were outcomes of politically and ideologically constructed human actions. Therefore, the future recurrence of such atrocities might be preventable while retributive justice might be both desirable and possible. Moreover, 85 percent of youth are interested in knowing about the Khmer Rouge regime. The Documentation Center of Cambodia's education project, emerging from the Tribunal, will help fulfill this demand. The Documentation Center of Cambodia, in collaboration with the Ministry of Education, established the Genocide Education Project, which has produced the first textbook on the history of the Khmer Rouge era along with related curriculum materials and a teacher training program.Footnote 27
In addition to providing a platform for much-needed education about the Khmer Rouge regime, the Tribunal has the potential to contribute to the development of Cambodian civil society. Since 1992, with varying degrees of success, NGOs have engaged in educating the public on human rights and democracy and advocating the government for their protection and promotion. They have also shouldered the provision of social services in some areas, particularly healthcare and education.
The Tribunal has contributed to the rise of some new NGOs and offered new opportunities and activities for existing NGOs in the areas of education, public health (concerning post-traumatic stress syndrome), and legal aid. For example, the Documentation Center of Cambodia is very active in genocide education; Youth for Peace and Victims Association (Ksem Ksan) have involved local communities in the construction of memorials; and the International Center for Conciliation/Cambodia and the Transcultural Psychological Organization have offered training on conflict resolution and mental health.Footnote 28 The presence of these NGOs helps to maintain the public space for civic engagement in political discourse, however limited that space may be.
Conclusion
In the end, the ECCC is a politically negotiated and compromised search for justice; consequently, it is more than likely that the outcomes produced by the Tribunal will fall short of the expectations of all parties involved. While the Tribunal may follow the government's political agenda more than was originally intended, it remains useful nonetheless. Critics who call for an end to international involvement in the tribunal overlook some critical positive outcomes. First, the Tribunal serves as an impetus for discussion, documentation, and education on the Khmer Rouge regime. The Khmer Rouge's grotesque crimes against humanity remain only partially grasped by the regime's survivors; still worse, those atrocities remain hidden from the majority of Cambodia's youth. In this context, even if the Tribunal does not meet international standards of justice, some of the information has been useful in piecing together parts of the history of the Khmer Rouge regime never before available to Cambodians. Second, the emergence of some NGOs connected to the Tribunal process that help to preserve public space for civic engagement is not a desirable outcome for an authoritarian victor. Rather it is a byproduct of a compromised search for justice. Third, the tribunal symbolizes the enduring will of the international community to fight for accountability and against impunity. Even though the Tribunal may not deliver justice for all the victims of the Khmer Rouge, it gives people hope for the possibility of future justice. The Tribunal stands as proof that crimes against humanity will not go completely unpunished regardless of political compromise, geography, or the passage of time. A majority of Cambodians have expressed that it is not too late to seek truth and justice.
To be fair to the victims, the confinement of those “most responsible” for the crimes under the Khmer Rouge to the five leaders under indictment is, on the face of it, inadequate. However, given the government's limited interest in bringing former Khmer Rouge leaders to justice, the expansion of indictments will not only delay the already long overdue Tribunal but it could well force its collapse in the face of objections by the government. It would be an utter failure and unjust if the United Nations withdrew from the Tribunal because the Cambodian government would likely complete the trial alone in domestic courts, which are widely perceived to be corrupt and politically dependent. Yet the outcome of such a government-run trial, even if it failed to achieve international endorsement, would have domestic legitimacy. The government could easily fall back on its position whereby the United Nations and the Western world are dismissed for supporting the Khmer Rouge's militarily defeated movement in the 1980s. Forged from difficult negotiations, the Tribunal will produce mixed results incapable of satisfying all competing interests; critics, however, should not be too quick to ignore the positive impact of the Tribunal.
Acknowledgments
Information for this article was collected during the period when the author served as a Fulbright Scholar.
