But Arrival of UN Experts a Key Step
Setting up a tribunal to try Khmer Rouge leaders on charges of crimes against humanity will be fraught with political and legal difficulties in a process that could take years, experts said this week.
But scholars and genocide researchers are unanimous that there is enough proof against former and current members of the group to warrant such an action.
Human rights officials say the process of punishing those responsible for the nearly 2 million deaths between 1975 and 1978 could be an important turning point in battling the phenomenon of impunity in Cambodia. Researchers say the process could help heal the country’s psychological wounds.
“Imagine you are being blessed by God,” said Youk Chhang, who directs the Documentation Center of Cambodia, a leading gatherer of evidence against Khmer Rouge leaders. “All [Cambodians] have been a victim of the Khmer Rouge.”
The arrival here Saturday of three legal experts appointed by UN Secretary-General Kofi Annan to examine evidence of Khmer Rouge atrocities will be a key step in determining the feasibility of convening a UN-sponsored tribunal.
The three men—Sir Ninian Stephen, former governor general of Australia; Rajsoomer Lallah, former chief justice of Mauritius; and Stephen Ratner, a US expert on international law and war crimes from the University of Texas—are to spend five working days in Cambodia and leave on Nov 22.
They are expected to deliver a recommendation to Annan and the Cambodian government in January on whether enough evidence exists to proceed with a tribunal, and, if so, where such a tribunal should take place. They also will evaluate the possibility of apprehending living people incriminated by evidence.å
Rosemary McCreery, director of the Phnom Penh Office for the UN High Commissioner for Human Rights, said Wednesday that the three legal experts during their stay here will attempt to meet with government leaders “to get their views on the proceedings in the broadest possible sense.”
A Question of Intent
Some analysts have questioned the government’s commitment to a trial beyond serving their political interests.
American journalist Nate Thayer—whose 1997 interviews with Ta Mok and Pol Pot shed the most light on the Khmer Rouge brain trust in at least 18 years—said last year that Prince Ranariddh and Hun Sen “do not object to working with people who committed crimes against humanity…. What they object to is that those [criminals] are not loyal to them.”
Cambodia scholar Stephen Heder, a lecturer at the School for Oriental and Asian Studies, this week concurred. “Neither the current ‘caretaker’ government nor the opposition appear to be genuinely committed to the principle that those responsible for crimes against humanity, genocide or war crimes should be brought to justice through fair trials either in Cambodia or elsewhere,” Heder wrote by e-mail from London.
Government and UN officials disagreed, saying that Cambodian leaders have repeatedly expressed the desire to hold a tribunal.
CPP spokesman Khieu Kanharith underscored his government’s commitment to carrying out the tribunal.
“First of all, we need it because if we want to avoid that history might repeat again, this tribunal could be a reminder to the next generation,” Khieu Kanharith said Wednesday.
He also said a tribunal would clear the air of accusations that some members of the CPP were involved 20 years ago in crimes against humanity.
The UN’s top human rights envoy to Cambodia, Thomas Hammarberg of Sweden, told reporters Nov 6 in New York that he believed the government’s pledge to support the creation of a tribunal.
“We should not be too cynical about this,” Hammarberg said according to official minutes of the press conference. “I’ve seen many cynical remarks in the media and by governments abroad. I think we should take the Cambodians at their word. They have asked for this.”
In response to Hammarberg’s suggestion, then-prime ministers Prince Norodom Ranariddh and Hun Sen in June 1997 wrote to Kofi Annan to request the world body’s assistance “in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge.”
The 185-nation General Assembly in its November 1997 session in turn condemned the Khmer Rouge and formally requested that Annan appoint a team to investigate Khmer Rouge crimes.
UN movement on a tribunal has taken nearly 20 years because most of the permanent UN Security Council members supported the in-exile Coalition Government of Democratic Kampuchea—which included the Khmer Rouge—until 1991.
David Hawk, the UN rights office’s education and training director, said Wednesday that the 15-member UN Security Council could still block the formation of a tribunal if it doesn’t see Cambodia as a threat to regional security.
The provision and precedent for establishing previous ad hoc tribunals—the proposed International Criminal Court is not functioning yet—as in the cases of war-torn Rwanda and Yugoslavia, lays with the Security Council.
Also, the Chinese, one of five countries who have the power to veto a Security Council vote, have in the past called Khmer Rouge issues “internal affairs of Cambodia” and opposed talk of a tribunal for rebel supremo Pol Pot and other Khmer Rouge leaders. Pol Pot died earlier this year, reportedly of a heart attack.
“Even today, the UN Security Council is selective about when and how it prosecutes war crimes,” Iain Guest, a former journalist and UN official, was quoted as saying in the daily publication of July’s Rome Conference on the International Criminal Court.
Guest said politics interferes with the Security Council’s selection process.
Also, logistics for a tribunal—such as finding or building a court room and appointing prosecutors and judges—could take two years, Hawk said. “In informal terms, you’ve got a complicated situation,” he said.
Others have acknowledged problems with apprehending Khmer Rouge leaders, whether they remain at large or have been integrated into Cambodian society.
Khieu Kanharith said this is a problem that is recognized by the government, but he said he hopes that by the time a tribunal begins, the army will have neutralized armed groups that would protect an individual.
“It would be a problem now, but maybe not next year,” he said. “That’s what we hope to do…. Pacify the country and you don’t have a specific army for a specific guy.”
Sok Sam Oeun, executive director of the International Human Rights Law Group Cambodia Project legal aid organization, said Thursday that while a tribunal may threaten peace agreements with former rebel strongholds, defectors should respond to a summons if they want to underscore their statements of innocence.
However, he cautioned that a trial in absentia for Ta Mok and other rebel leaders still at large in the jungle cannot be considered fair “unless he sends a lawyer on his behalf.”
The Burden of Proof
Perhaps most importantly, the team of lawyers will need to determine if there is enough evidence to implicate particular individuals, UN officials said.
Some researchers support the idea of going beyond trying the remaining standing committee members, down to zone commanders, region commanders and possibly prison guards.
How far to go should “be up to the prosecutor,” said Craig Etcheson, a scholar of the Khmer Rouge now working with the US-based International Monitors Institute.
Youk Chhang, of the Documentation Center, and Sok Sam Oeun, however, disagreed, saying the top is largely responsible for the orders to kill. Cadre who carried out orders from the top to kill would themselves have been killed had they disobeyed, Sok Sam Oeun said.
And because participation in the movement was widespread, it is easier to assign blame for the genocide than for individual crimes, Youk Chhang said. “You don’t know who killed your sister, exactly,” he explained. “But you know who’s responsible for the genocide.”
Youk Chhang said responsibility for the genocide lies with the 20 standing committee members of the Communist Party of Kampuchea’s central committee—the reclusive group that ran the Democratic Kampuchea regime—only six of whom remain alive.
Most top officials of the regime were aware of Phnom Penh’s Tuol Sleng detention and torture center, code-named S-21, apparently having read and signed its reports, often in code names, said Youk Chhang, whose organization harbors many recovered documents from the era.
The government has allowed three members of the standing committee to defect, most notably Ieng Sary in 1996 and Ke Pauk in 1998. Both men remain free inside of Cambodia’s borders despite what researchers say is overwhelming evidence against them.
“There hasn’t even been an apology, even by those who have defected to the government side,” Hammarberg said last week in New York. He pointed out, for example, that no contrition has been expressed by Ieng Sary.
Ieng Thirith defected with her husband, Ieng Sary, in 1996 and lives in Pailin.
Khmer Rouge nominal head Khieu Samphan, military chief Ta Mok and ideological chief Nuon Chea are ostensibly at large in hideouts along the Thai border.
“Ieng Sary and Ke Pauk certainly have cases to answer, and should be brought to trial in order to do so,” wrote Heder, of the School for Oriental and Asian Studies, adding that there are solid cases against Nuon Chea, Ta Mok and Khieu Samphan. Evidence against Ieng Thirith “is much less clear,” he said.
Ieng Sary was the Democratic Kampuchea regime’s third in command as its deputy prime minister and foreign minister, and sixth in the party hierarchy, according to Cambodia scholar Ben Kiernan. Ke Pauk was thirteenth in the standing committee, but fourth overall in the military hierarchy as the Central Zone commander, according to Kiernan.
King Norodom Sihanouk in 1996 pardoned Ieng Sary at the request of Prince Ranariddh and Hun Sen to grease a mass-defection deal that helped cripple the Khmer Rouge. The amnesty overturned Ieng Sary’s death sentence in absentia handed down in a 1979 trial in Phnom Penh arranged by the Vietnamese-installed government. Pol Pot was also given the death sentence.
Ke Pauk, who in March defected with a mass mutiny against military chief Ta Mok in the Khmer Rouge’s last major stronghold of Anlong Veng, has pinned blame for the genocide squarely on Ieng Sary, Pol Pot, Ta Mok, Son Sen and Nuon Chea.
“It was no one else,” Ke Pauk told The Cambodia Daily in March.
Asked in the same interview at Siem Reap town if he would testify as a witness in a tribunal, he answered enigmatically, saying, “How can I be a witness? I’ve told you everything I know.”
However, Youk Chhang said he can prove that Ke Pauk knew about Tuol Sleng. And researchers widely believe that Ke Pauk helped orchestrate the regime’s bloodiest streak, the 1976-78 purges of Eastern Zone cadre, when the entire zone was judged treasonous. “He killed more than 100,000 innocent Cambodian civilians, for Christ’s sake! You know all those killing fields in Kompong Cham? That’s Pauk’s work!” exclaimed Etcheson, of the International Monitors Institute, at the time of Ke Pauk’s defection.
Some Eastern Zone cadre, including the CPP’s top three current standing committee members—Chea Sim, Hun Sen and Heng Samrin—escaped the purges, only to return at the head of the Vietnamese invasion in December 1978.
Ieng Sary told The Cambodia Daily in April that he would appear in front of an international tribunal but only if the Phnom Penh government supported the process. Khieu Kanharith and Youk Chhang said this week they expect the government to continue to back the formation of a tribunal and for Ieng Sary to honor his statement.
However, Ieng Sary implied the same sentiment that the pro-government Chakraval (Universe) newspaper warned of earlier this year: that a trial might destabilize the nation’s fragile reconciliation with former rebels.
Ieng Sary has repeatedly protested his innocence and claimed that he knew nothing of the widespread killings or torture centers. “In the early days there was certainly much killing,” he told New York Times reporter Henry Kamm in 1980. A few months later, Ieng Sary told Kamm the number killed during Democratic Kampuchea was “a few thousand.” And in 1997, he told Kamm that he thought Tuol Sleng—in which some 16,000 people perished—was “a re-education center.”
Youk Chhang, though, said he can prove that Ieng Sary was aware of Tuol Sleng and of the first arrests in 1976 that researchers say signaled the dawn of the Eastern Zone purges. In addition, Youk Chhang said he can prove that Ieng Sary was closely acquainted with “Deuch,” the notorious prison boss of Tuol Sleng. Deuch is thought to be at large somewhere in Cambodia.
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