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The Pragmatics of Prosecuting the Khmer Rouge*

Published online by Cambridge University Press:  17 February 2009

Balakrishnan Rajagopal
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Extract

It is generally known that one of the worst acts of mass killings and auto-genocide occurred in Cambodia between 1975–79 during the reign of terror unleashed by 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 during this period. The KR regime persecuted religious and ethnic minorities, abolished all religions, private property and money and put the entire population under forced labor. The KR continued such practices in the areas under its control during the 1980s, and conducted a vitriolic and violent campaign against the ethnic Vietnamese in Cambodia until its collapse last year.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 189 - 204
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. See infra n. 9 and the accompanying text.

2. On this well-known aspect of recent Cambodian history, there are numerous studies and books. See e.g., Chandler, David P., A History of Cambodia, 2nd ed. (Westview Press 1992)Google Scholar; The Tragedy of Cambodian History: Politics, War and Revolution Since 1945 (Yale University Press 1991)Google Scholar; Becker, Elizabeth, When the War Was Over: The Voices of Cambodia's Revolution and Its People (Simon and Schuster 1986)Google Scholar; Chanda, Nayan, Brother Enemy: The War After the War, (Harcourt Brace Jovanovich 1986)Google Scholar.

3. The Agreement called for a non-return to ‘the policies and practices of the past’ in an indirect reference to the KR crimes, as a result of the opposition by the KR and China to any mention of the word ‘genocide’, though the US, due to outside pressure from NGOs and activists, made an unsuccessful last-minute attempt to include a reference to genocide in the Agreement. See Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, signed in Paris, 21 October 1991.

4. The human rights component of UNTAC had no mandate to investigate KR crimes prior to 1991 and in fact did not investigate any. This continued to be the case even after the KR had flouted the Paris Agreements, attacked and killed UN peacekeepers, and refused to participate in the 1993 election.

5. See Law on the Outlawing of the Khmer Rouge, adopted by the National Assembly of the Kingdom of Cambodia, 1994 (Copy on file with the author).

6. While the law specified that the KR can be granted amnesty for a period of six months after its adoption, the Cambodian government has continued to grant de facto amnesties, in violation of the law.

7. Cambodia Genocide Justice Act (11 U.S.C. 2656, Part D, Sections 571 – 574), May 1994. Available online at http://www.yale.edu/cgp/dccam/wwwcgja.txt. The momentum for the Act was provided by some US legislators and academics.

8. It is now known as the Cambodia Office of the High Commissioner for Human Rights

9. See ‘Situation of Human Rights in Cambodia’, UN Commission on Human Rights Resolution, 1997/49, at para. 12.

10. Situation of Human Rights in Cambodia, A/C.3/52/L.68, 20 November 1997, para. 16.

11. Copy of the letter on file with the author. The letter was actually drafted by the UN Centre for Human Rights.

12. Copy of the letter on file with the author.

13. Essentially, the Canadians seemed to have been caught by surprise by the US request, which was publicly made by the US Secretary of State, Ms. Madeline Albright, in June 1997. The Canadians responded by saying that the American request would have to be approved by the UN Security Council, thus effectively ensuring that the request would be vetoed. See The Times (London 26 06 1997) p. 15Google Scholar.

14. Perhaps one of the key reasons these efforts failed is that almost no-one was serious about making the KR, as an entity, pay for its crimes: the focus was entirely on a single, one-off trial of the almost-mysterious Pol Pot. This focus on individual leaders could not but reveal itself as ethically unacceptable and practically unsound. I thank David Ashley for pointing out this issue.

15. See US Senate Resolution 124, 24 September 1997. The Senate Resolution states clearly that mis is US policy; a policy that was established by the Executive at the time of the Paris Peace Accords.

16. Draft resolution dated 28 April 1998. Copy on file with the author. This may seem somewhat puzzling when the US was, at the same time, opposing several key elements of the Rome Charter on the establishment of the permanent International Criminal Court.

17. The US's initiative, which was largely the result of the officials in the State Department who were responsible for human rights, targeted Pol Pot, and later Ta Mok (senior KR military commander known as ‘butcher’) and Nuon Chea (a senior KR leader).

18. Thayer, Nate, ‘Pol Pot: The End’, Far Eastern Economic Review (7 08 1997)Google Scholar.

19. The three experts are: Sir Ninian Stephen of Australia, former Judge of the ICTY, who will head the group; Rajsoomer Lallan of Mauritius, currently the Special Rapporteur for Myanmar; and Professor Steven Ratner, an American legal academic who co-wrote a 1995 report for the US State Department on bringing the KR to justice. See ‘Legal Experts to Charge Cambodia's Khmer Rouge with Genocide,’ (Deutsche Presse-Agentur 13 August 1998).

20. See Fernando, Basil, The Inability to Prosecute: Courts and Human Rights in Cambodia and Sri Lanka (Future Asia Links, Hong Kong 1993)Google Scholar.

21. Kang Kek leu, alias Duch, was the director of Office S-21, also known as santebol or office of the security police between 1975 and 1979. S-21 was a mass detention, interrogation and extermination facility for ethnic Khmer and some foreigners suspected of espionage, which admitted some 14,000 men, women and children between 1975 and 1979. Of those, only seven are known to have survived. Information from David Chandler. Note on file with the author.

22. Mam Nay, alias Chan, was the head of the interrogation unit at S-21 from mid-1976 until 1979. There is documentary evidence of his close association with the tortures and killings at S-21. Information from David Chandler. Note on file with the author.

23. Though Hun Sen may be willing and only too glad to see some of the KR, like Ta Mok and Nuon Chea, brought to trial, he is not likely to sacrifice — or have the capacity to capture — other KR who are close to him, including Ieng Sary.

24. The Times noted: ‘trying Pol Pot for the crimes he is accused of masterminding would be an extraordinary triumph for law and civilization’. ‘A Trial for Pol Pot’, Editorial, The New York Times (24 06 1997)Google Scholar.

25. As a general remark, I should note that pressure exerted from outside by NGOs, activists and academics has been the only reason why the KR crime have received even this much attention. The United States as well as the UN have not historically shown any real interest in the human rights violations committed by the KR starting from 1975. On this issue, see Metzl, Jamie, Western Responses to Human Rights Abuses in Cambodia (St. Martin's Press, 1996)CrossRefGoogle Scholar.

26. A northwestern province in Cambodia.

27. See Cissé, at p. 163, fn. 12.

28. Former US National Security Adviser Zbigniew Brzezinski is reported to have acknowledged after leaving office: ‘I encouraged China to support Pol Pot’. See George Gedda, ‘Pol Pot: A “mass murderer” but, for a time, an ally’, Associated Press, 20 June 1997. I should also note that the Vietnamese were also responsible for creating the KR, as without Vietnamese assistance, the KR could not have won the 1970–75 war against the US-backed Lon Nol forces. In addition, the UN itself is deeply implicated with the KR: UN ‘humanitarian’ operations kept the KR alive during the 1980s along the Thai-Cambodian border.

29. I do not mean that it would be possible to find foreign backers of the KR criminally responsible; but if the effort to bring the KR to justice is about establishing the truth (which it is, in the final analysis), then the whole truth must be told. The inescapable part of that truth is the fact that the KR is, to a very significant extent, the creature of the international community.

30. Report of the Special Rapporteur for Rwanda, of 19 February 1998, at para. 22.

31. There is one more option and that is the possibility of a proceeding before the International Court of Justice, under Art. 36 of its Statute. I am not discussing it here due to the fact that such a measure by any country is highly remote. For a discussion of this option as well as an application under Article IX of the Genocide Convention, see Haruium, Hurst, ‘International Law and Cambodian Genocide: The Sounds of Silence’, 11 Hum. Rts. Q (1989) p. 82Google Scholar. Of course, now the Permanent International Criminal Court has also been founded in the Rome Charter, but it has no jurisdiction over past crimes.

32. See Fernando, supra n. 20. See generally the sections on judicial independence and the rule of law in the series of reports submitted by the UNSRSGHRC to the CHR, particularly the 1994 Report: E/CN.4/1994/73; E/CN.4/1995/87; E/CN.4/1996/93; E/CN.4/1997/85.

33. See infra. On Truth Commissions, see generally, Truth Commissions: A Comparative Assessment (Harvard Law School Human Rights Program, 1997)Google Scholar.

34. On universal jurisdiction, see generally Randall, Kenneth, ‘Universal Jurisdiction under International Law’, 66 Texas L Rev. (1988) p. 785Google Scholar. Third country prosecutions have been termed ‘decentralized prosecutions’. See Wolfrum, Ruediger, ‘The Decentralized Prosecution of International Offences through National Courts’, 24 Israel Y.B. Hum. Rts. (1995) p. 183Google Scholar.

35. See supra nn. 13–14 and the accompanying text.

36. See le Blanc, Lawrence J., ‘The United States and the Genocide Convention’, (Durham N.C., Duke University Press 1991)Google Scholar.

37. One variation of this proposal could be the conclusion of a Memorandum of Understanding between Cambodia and interested courts somewhat based on the Nuremburg model. This model has been advocated recently within the UN. I personally believe that the political momentum for such a course of action is fairly limited, unless the UN plays an active coordinating role and involves NGOs.

38. For such a suggestion in the case of the permanent International Criminal Court, see, ‘International Criminal Court: Making the Right Choice Part II’, (AI Index IOR 40/11/97, July 1997).

39. See supra n. 2.