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24 FLFWA 137
(Cite as: 24 Fletcher F. World Aff. 137)
Fletcher Forum of World Affairs
Spring, 2000
*137 RECLAIMING CAMBODIAN HISTORY: THE
CASE FOR A TRUTH COMMISSION
Jaya
Ramji [FNa1]
Copyright © 2000 Fletcher Forum of World Affairs; Jaya Ramji
There are societies--entire
polities--which might themselves be considered torture victims, in every bit as
great a need of rehabilitation as the individuals persisting in their
midst.
--Lawrence
Weschler [FN1]
January 7, 1999, marked the twentieth
anniversary of the demise of the Khmer Rouge in Cambodia, a genocidal regime
that killed an estimated one-third of the Cambodian population in less than four
years of rule. [FN2] Two decades later, the atrocities of the Khmer Rouge have
yet to be examined by an impartial authority [FN3] and Cambodian politics remain
turbulent, impeding the peaceful development of Cambodian civil society. These
two phenomena arguably are linked; until the Cambodian government and the
international community develop a policy to repair the damage inflicted by the
Khmer Rouge, the Cambodian people will be unable to live in a peaceful
society.
In order for Cambodian society to heal,
the full truth about the Khmer Rouge regime must be examined and disseminated,
creating a history that Cambodians can teach to their children. [FN4] While a
strong case can be made for the need to prosecute the members of the Khmer
Rouge, [FN5] an international tribunal for Cambodia may be most effective if
limited to the prosecution of top leaders. [FN6] Structural constraints would
render a tribunal incapable of fully addressing the *138 complexities of the Cambodian
genocide, and thus necessitate the formation of a truth commission or other
investigative body as a supplement. [FN7] In order to move forward, Cambodia
must establish a clear picture of the past so that all Cambodians have a stake
in upholding its future.
This article investigates the findings
of a survey of Cambodians conducted by the author in June 1997. On the basis of
these interviews and taking into account Buddhist views of justice and
reconciliation, the article recommends a trial for top leaders and a truth
commission for lesser members of the Khmer Rouge. This study was designed to
determine which mode of accountability would be appropriate for the Cambodian
people in addressing the crimes of the Khmer Rouge regime. To discern which of
these models would be most responsive to the needs and concerns of the Cambodian
people, the author interviewed twenty-five Cambodians from varied socio-economic
strata on the subject of whether, and if so how, the Khmer Rouge should be
punished.
This composition
first provides a brief history of recent Cambodian politics. Next, it outlines
the various accountability mechanisms that have been adopted in addressing
situations of mass violence in the past. Then it examines themes that arose from
interviews. Recurring themes raised by interviewees can offer qualitative
insight into the opinions of Cambodians. Taking all of these factors into
account, the author presents recommendations on the form that a Cambodian truth
commission should take.
CONTEMPORARY
CAMBODIAN POLITICS
In June 1997, Cambodian papers were
abuzz with speculation about the possible capture of Pol Pot and his potential
prosecution in an international tribunal. [FN8] On July 5, 1997 Hun Sen, then
Second Prime Minister, took power in Cambodia through a coup, killing more than
forty members of the FUNCINPEC party of Prince Ranariddh, the First Prime
Minister. [FN9] This power shift sobered the enthusiasm of those who promoted a
tribunal, and put the idea of capturing Pol Pot on hiatus. Less than one month
later, however, the Khmer Rouge themselves put Pol Pot on trial and sentenced
him to life imprisonment for his crimes against the Cambodian people.
[FN10]
Through late 1997 and early 1998,
Cambodia was fairly stable politically, albeit ruled undemocratically. On April
15, 1998, the Khmer Rouge reported that Pol Pot was dead. [FN11] The death of
Pol Pot was a clarion call to the Cambodian government and the international
community to seek out the truth before the rest of the top Khmer Rouge officials
pass away. On July 26, 1998, the incumbent Hun Sen retained his position in an
election fraught with irregularities and intimidation [FN12] that again denied
Cambodians a meaningful stake in their country's governance.
*139
Late 1998 and 1999 were characterized by two recurring themes: the arrest and
surrender of the remaining Khmer Rouge leaders and extensive negotiations
between the United Nations and the Cambodian government on the issue of an
international tribunal. In December 1998, Khieu Samphan and Nuon Chea, two of
the most notorious criminals of the Khmer Rouge era, surrendered to the
Cambodian government and were allowed to walk free. [FN13] In February 1999, the
last holdouts from the Khmer Rouge army laid down their weapons and joined the
Cambodian army. While this was a step toward the unification of Cambodia, the
soldiers threatened to return to armed violence if the Khmer Rouge leaders were
put on trial. However, Ke Pauk, a high-ranking Khmer Rouge official, pledged to
stand trial if the government ordered him to. [FN14]
In March 1999, United Nations Secretary
General, Kofi Annan, presented the recommendations of the United Nations Group
of Experts on Cambodia to the United Nations General Assembly and Security
Council. The U.N. Experts' report advised the creation of an international
tribunal for the Khmer Rouge leaders and a separate truth commission for other
cases. [FN15] On March 12, Hun Sen officially rejected the U.N.'s
recommendations of an international tribunal, and instead requested
international assistance for a domestic trial of the Khmer Rouge. The Cambodian
government also refused to accept a truth commission for lesser members of the
Khmer Rouge. [FN16]
A few days after the Group of Experts'
report was published, Ta Mok, the last fugitive Khmer Rouge leader, was arrested
by the Cambodian military. Hun Sen insisted that a domestic trial would be
sufficient for Ta Mok, and that there was no need for an international tribunal.
[FN17] In May, Kang Kek Ieu, or Duch, the chief interrogator for the Khmer
Rouge, who was the commandant of the infamous Tuol Sleng prison, was taken into
protective custody by the Cambodian government. Duch proclaimed his willingness
to testify against himself and other Khmer Rouge leaders. [FN18] In September, a
Cambodian military court charged Ta Mok and Duch with genocide. [FN19]
In August, the Cambodian government
rejected a second proposal by the United Nations, which would have created a
tribunal with a majority of foreign judges and a minority of Cambodian jurists.
[FN20] In October, the United States government proposed a compromise plan
consisting of a tribunal composed of three Cambodians and two foreign members
which would require a majority of four to uphold a verdict. [FN21] Hun Sen
agreed to this plan, and declared that a tribunal will be convened by early next
year, with or without United Nations approval. [FN22] He has opened up the
possibility of a trial for all of the top Khmer Rouge leaders, instead of
limiting the defendants to Ta Mok and Duch, who are already in custody.
The insistence of the Cambodian
government on a domestic trial, while understandable from the perspective of
sovereignty, is also short-sighted. A fair trial for the leaders of the Khmer
Rouge requires international intervention due *140 to the current state of the
Cambodian judiciary. The case for prosecution of the leaders who commanded the
genocide has been made eloquently and convincingly; [FN23] however, the question
remains how to account for crimes committed by lower-ranking members of the
Khmer Rouge. [FN24] Legal proceedings focused on individuals are neither
feasible nor appropriate for the thousands of cadre members implicated in the
Cambodian genocide, nor could they accurately or sufficiently establish a shared
historical memory for the Cambodian people. [FN25] After almost twenty years of
war, Cambodia faces a long road to recovery; a truth commission is a vital
component of this healing process. [FN26]
ACCOUNTABILITY
MECHANISMS [FN27]
In the words of Jose Zalaquett, "A
policy to deal with past human rights abuses should have two overall objectives:
preventing the recurrence of such abuses and, to the extent possible, repairing
the damage they have caused." [FN28] Remedies for human rights abuses have
traditionally fit one of three categories: international trials, domestic trials
and truth commissions. International tribunals, such as the International
Criminal Tribunal for the Former Yugoslavia, are established by the United
Nations or similar international body, and are composed of judges and
prosecutors from foreign countries. Domestic trials, such as the current
genocide trials in Rwanda, take place in the courts of the country of the
accused, following domestic laws. Finally, truth commissions, such as the South
African Truth and Reconciliation Commission, provide a forum to hear the stories
of the victims and the perpetrators without the punitive powers of a court.
International tribunals prosecute those
accused of serious crimes under international law and memorialize episodes of
mass violence. [FN29] The hallmarks of international trials are individual
accountability and punishment. [FN30] That is, such trials focus exclusively on
the deeds of individual perpetrators, often military and political leaders
(under a chain-of-command theory), and impose traditional criminal sanctions on
those found guilty. [FN31] Perhaps most importantly, international tribunals
promote international criminal norms such as the prohibitions on genocide and
crimes against humanity, which become diluted if every violation is not
punished. [FN32] The Nuremberg trials, the Tokyo tribunal and the International
Criminal Tribunals for the Former Yugoslavia and Rwanda are all examples of
international trials. The main functions of an international trial are
deterrence of future crimes and retribution for the victims, while
reconstruction of society, rehabilitation of the criminal and behavior
correction are only indirect results. [FN33]
Criticism of international trials most
often begins with the claim that they constitute a form of "victor's justice,"
meaning that they are neither unbiased nor impartial. [FN34] International
trials are extremely expensive, and financial and political constraints often
render them unable to arrest even those perpetrators that *141 they have indicted. Consequently,
many alleged human rights abusers are arbitrarily absolved, raising questions of
scapegoating and impunity. [FN35] The focus of trials on individual perpetrators
renders them unable to account for all of the complex factors that may have
contributed to the commission of mass violence, and thus incapable of completely
addressing such crimes. [FN36]
While international tribunals may be
effective in retribution, punishment and deterrence because of their authority
to impose serious penalties, they do not contribute as much as truth commissions
to the societal rehabilitation that is vital in the wake of mass violence.
[FN37] International criminal trials can pose a threat to fragile democratic
structures in countries in transition from a repressive regime. [FN38] In the
particular case of Cambodia, the crimes of the Khmer Rouge are so extensive that
it would be prohibitively expensive for an independent tribunal to examine all
of the facts surrounding the regime. [FN39] Most importantly, tribunals
"[presuppose] some moral choice or moral freedom on the part of the putative
criminal." [FN40] In the Cambodian context, perpetrators who were not top
leaders were so terrified and brainwashed by the Khmer Rouge regime that such a
moral choice may have been absent.
Similar to international tribunals,
domestic trials often interpret human rights norms. They identify human rights
abusers, apply the municipal laws that the abusers have broken, and punish them.
Domestic trials are perpetrator- focused and follow the principle of individual
accountability. These trials take place within the domestic judicial system of a
country and derive authority from national statutes, codes, and precedents. As a
result, domestic trials can help to re-establish the legitimacy of the domestic
legal system in the wake of mass violence. [FN41]
However, a domestic trial faces all of
the same problems as an international tribunal, including its inadequacy to deal
with the sheer numbers of perpetrators under the Khmer Rouge regime. [FN42] This
problem is exacerbated by the fact that the judiciary in Cambodia, like that in
most regimes recovering from mass violence, is slowly recovering from virtual
obliteration. A domestic trial obviously relies on a functioning and impartial
judiciary. Cambodia has never seen an impartial and independent judiciary, and
most legal experts were murdered by the Khmer. Legal training has begun in
Cambodia, but the young judiciary does not have the necessary independence or
experience to conduct a trial of the Khmer Rouge, which would be politically
charged and highly controversial. In a striking display of unanimity, every one
of the interviewees stated that a trial could not be held in Cambodia because
the judiciary is too corrupt and weak. [FN43]
Another possibility is a trial in
another country. When the international community was hopeful that Pol Pot would
be captured during the summer of 1997, the proposal of extradition to Canada was
popular. Once in Canada, Pol Pot could be prosecuted under Canadian law, which
explicitly permits universal jurisdiction *142 for acts of genocide. [FN44] Pol
Pot's death put an end to these speculations, but perhaps other Khmer Rouge
leaders could face prosecution in this manner.
The final option is a truth commission.
Truth commissions can record and disseminate a full and independent historical
record of human rights abuses in a specific country, performing a broader
fact-finding function than a tribunal. [FN45] This record is intended to perform
both a preventative and a corrective goal by aiding a society to learn from
their past mistakes and helping to prevent the revision of history and the
denial of past crimes. [FN46] Truth commissions are generally victim-focused;
that is, they center around the stories of the victims rather than the testimony
of the perpetrators. The psychological aim of the truth commission is the
official acknowledgment of the truth and its subsequent entry into the popular
consciousness.
Truth commissions do not possess
prosecutorial authority and do not act as judicial bodies that can declare
guilt. Truth commissions are more difficult to define than domestic and
international trials, since they tend to be more flexible and adapt to the needs
and requirements of each situation. Priscilla Hayner outlines four general
characteristics of truth commissions: a focus on the past, an attempt to provide
a larger picture of abuses rather than an emphasis on a discrete event, a finite
and pre-defined time span, and the possession of some authority allowing greater
access to information and security. [FN47] The reports published by truth
commissions rarely lead to prosecutions by tribunals. This can be both useful,
because of increased participation, and detrimental due to truth commissions'
lack of enforcement abilities. A new government, a regional organization or the
United Nations can establish a truth commission.
The most obvious criticism of truth
commissions is that they lack the power to punish. [FN48] This, however, depends
upon the particular truth commission [FN49] and one's definition of punishment.
The power of truth commissions lies in non-traditional sanctions such as shame
and ostracization. Suchforms of punishment can be as powerful as criminal
punishments in advancing the rule of law, while encouraging good-faith
participation by perpetrators. [FN50] Nonetheless, truth commissions can pose
due process problems in that they name and punish those found guilty, but do not
always meet the procedural requirements of a court of law, [FN51] a consequence
that may prove unsatisfying for victims and arguably violates the rights of the
accused.
Given the limited capacity of the
domestic Cambodian judiciary, a truth commission or an international tribunal
would be the most appropriate accountability mechanism. [FN52] The heinous human
rights violations of the Khmer Rouge must be examined and exposed. [FN53]
However, the tension between the "duty to prosecute" [FN54] to vindicate the
victims and uphold international criminal law, versus the need to balance
accountability with the fragility of a new democracy, is extremely complex.
While numerous international scholars assert that genocide *143 must be legally punished, it is
important to remember that a trial and a truth commission are not mutually
exclusive. [FN55] In the case of Cambodia, a truth commission is necessary to
paint a larger picture of Cambodian history from 1975 to 1979 that a tribunal
standing alone would ignore. A truth commission in combination with limited
prosecutions may be the most effective method of accounting for the crimes of
the Khmer Rouge. [FN56]
THEMES
Seven
recurring themes arose within the interviews conducted. First, Cambodians want
peace. [FN57] After decades of war, many of those interviewed would not support
a tribunal if it led to further instability and unrest. Second, the interviewees
want to know the full truth about the Khmer Rouge era. The Khmer Rouge regime
was so secretive that many Cambodians do not know who was ultimately responsible
for the genocidal acts; these facts must be established so that Cambodians can
put the past behind them. Third, the question of responsibility for violent
crimes committed under orders and/or duress surfaced repeatedly. Fourth, the
interviewees want to know who exactly backed the Khmer Rouge--that is, who or
which countries supported the regime both directly and indirectly. Fifth, in
regard to the question of amnesty, the interviewees held a vast array of
opinions. On the one hand, Buddhism and the goal of national reconciliation
point to leniency. On the other hand, the crimes committed were so heinous that
many interviewees believe that the Khmer Rouge must be punished. Sixth, a state
of law must be established in Cambodia. Finally, education is absolutely vital
for Cambodia to move toward its purported goals.
THEME 1:
Peace. Peace is extremely important to Cambodians, particularly to the average
citizen who works long hours to scrape out a meager living. Most Cambodians are
tired of conflict and bloodshed, of losing loved ones, and of living in a state
of lawlessness and fear. Interviewees repeatedly stated that development,
economic and otherwise, would be impossible without stability and security.
[FN58] The Cambodians interviewed expressed a desire to live in a stable
democracy so that Cambodia can develop as other countries in Southeast Asia
have. [FN59] Although a trial may be necessary for long-term stability, some
interviewees believed that short-term stability and a state of peace outweighed
future concerns. [FN60] They feared that a trial, with its adversarial nature
and zero-sum results, would result in political upheaval and could return the
country to a state of war. Given that many current politicians and government
officials colluded with or were themselves members of the Khmer Rouge, concerns
of political instability resulting from a trial are very real. Thus, a trial or
truth commission will have to take into account Cambodians' concerns of
stability and security.
*144
THEME 2: Full Truth. Some interviewees simply wanted to know the truth
about what had happened in the Khmer Rouge era. [FN61] The Khmer Rouge were
highly adept at disguising chains of command and keeping Cambodians in the dark
about who was orchestrating the genocidal regime. In Buddhist cultures,
truth-telling is the most important of the moral virtues, and the revelation of
truth can effect crucial changes. [FN62] Further, the ultimate goal of
punishment has traditionally been correction and not revenge. Common punishments
have included confession and asking for forgiveness, rather than corporal or
capital punishment. [FN63] Thus the act of truth-telling on the part of the
perpetrators could have great intrinsic value to many Cambodians.
THEME 3:
Determining Responsibility. Interviewees themselves brought up command
responsibility in many interviews. Who exactly should be held responsible for
the crimes of the Khmer Rouge? The question of command responsibility is
particularly interesting in view of the monarchical, absolutist tradition of
Cambodia. From the reign of kings through French colonization, through King
Sihanouk and Lon Nol, Cambodia has always been ruled by a dictator. [FN64] This
led, it seems, to the lack of formal education discussed below and consequent
susceptibility to indoctrination.
Cambodian
tradition promotes reverence for leaders far more strongly than Western
political systems, by whom and for whom international criminal law has been
created. Even in the wake of genocide and war, many interviewees were still
willing to trust the new Cambodian government and to let it decide which remedy
would best address the crimes of the Khmer Rouge. This raises a question posed
by Carlos Nino: "whether we are justified in imposing through the criminal law
our own values on people who not only do not share them but even lack the
conceptual scheme which would make them capable of recognizing and understanding
our values." [FN65] Precedential definitions of command responsibility may need
to be reassessed in the Cambodian context, shifting the burden of proof further
towards the superior. [FN66] Cambodian values often differ from the Western
values that underlie international criminal law. For example, international
criminal law emphasizes individualism, and the ability of the individual to
choose whether or not to obey an unlawful command given by a military leader.
This assumption may not hold in the Cambodian context.
A closely
related question raised by the Khmer Rouge atrocities is how to legally address
circumstances of individual or mass killing under duress. Under the rule of the
Khmer Rouge, Cambodians were starved and forced into slave labor, conditions
that certainly do not lend themselves to independent thought or deep theoretical
or moral freedom of choice. When the choice was to kill others or be killed,
should this relieve or mitigate responsibility for murder? For crimes against
humanity? For genocide? The international military tribunals in the wake of *145 World War II found that duress
was a complete defense. However, a recent case by the International Criminal
Tribunal for the Former Yugoslavia held that duress can mitigate a criminal
sentence but is not a defense against grave crimes such as crimes against
humanity. [FN67] In the case of Cambodia, it may be more accurate to focus on
the "top leaders" of the Khmer Rouge for individual criminal culpability, as the
living conditions of most other Cambodians may make it difficult to establish
that they met the mens rea requirements of such crimes. [FN68]
THEME 4:
International Actors. Interviewees expressed concerns about foreign involvement
in and support of the Khmer Rouge regime. [FN69] Some interviewees held the
racialist view of disbelief that Khmer would kill Khmer and asserted that there
had to be someone or some external force behind the Khmer Rouge. [FN70] Others
simply wanted to find out which countries supported the Khmer Rouge. [FN71]
While there
is no easy answer to the question who supported the Khmer Rouge, and there is a
fine line between culpability for complicity and a non- interventionist stance,
this area demands further research. The United States, Thailand, and the
People's Republic of China all arguably supported the Khmer Rouge either
financially, politically, or both. [FN72] Some Cambodians assert that the Khmer
Rouge could never have remained in power had other countries not supported them.
This question of outside support must be closely examined in order to establish
a shared historical memory and perhaps forgiveness in Cambodia; independently, a
tribunal would be incapable of such a task. [FN73]
THEME 5:
Amnesty. The fourth recurring issue was that of amnesty. [FN74] This is a
particularly interesting question in Cambodia--a country with a strong Buddhist
tradition. Both Buddhism and the goal of national reconciliation seem to point
towards amnesty, [FN75] and approximately half of the subjects interviewed felt
that amnesty would be acceptable given an in-court confession and apology.
[FN76] However, the other half, including a Buddhist monk, felt just as strongly
that the crimes committed by the Khmer Rouge were so heinous that amnesty is not
tenable. This raises important philosophical and psychological questions on the
limitations of human forgiveness--there may exist crimes so horrifying that to
forgive them officially (rather than personally) would be to diminish their
severity.
It is
important to reiterate that even those interviewees who ultimately agreed to
amnesty accepted it on the condition that those found guilty would admit in
court (or in a truth commission) to what they had done, confess their guilt, and
apologize publicly to all Cambodians. Some scholars, including M. Cherif
Bassiouni, would say even that this is the only possible method for legitimate
amnesty. [FN77] As a Royal Government of Cambodia official stated, amnesty
cannot be given or guaranteed before trial. A person must be assumed innocent
until proven guilty, and therefore does not have any guilt to be pardoned of
before *146 a judicial body has
examined her individual circumstances. [FN78] One of the main benefits of
amnesty is that it encourages guilty parties to explain what exactly happened
and to incriminate other culpable persons. [FN79] If voluntary confession in
court is not a part of the amnesty process, then amnesty loses one of its
central goals. Finally, for amnesty to adequately address the needs of the
victims' families and loved ones, public apologies are imperative. Amnesty is
not to be used as a method for the truly culpable to escape punishment--instead,
it should be a form of catharsis for both the perpetrator and the victim. The
perpetrator confesses to his crime, which relieves him, legitimates the victims'
loss and pain, and potentially inflicts an internalized punishment on the guilty
party. Both the public shame and the personal consciousness of the crimes that
he has committed serve to punish the perpetrator. Thus admission, confession in
court, and public or personal apology are three vital components of amnesty, and
the Cambodians interviewed believed that amnesty should not be offered without
them.
Those
interviewees who, under these conditions, supported amnesty usually explained
their forgiveness from a Buddhist perspective. The belief that "Hatred cannot be
conquered by hatred" was repeated several times in the interviews. [FN80] It is
important to note that this belief in amnesty often did not extend to the top
leaders. One interviewee recounted the story of Angkoly Mala, who committed a
horrific and gruesome crime that his teacher had masterminded and ordered. The
young student was forgiven, but his teacher was not. The interviewee analogized
this story to the situation of the Khmer Rouge, insisting that there should be
no amnesty for top leaders of the regime. [FN81] Thus, even for people operating
under an explicitly Buddhist interpretation and worldview, amnesty is not always
prescribed.
Of the
subjects who insisted on amnesty, one stated that tolerance and forgiveness were
"the primary Khmer nature." [FN82] Perhaps there could be a sociological
assumption or argument underlying these claims, but from the interview and other
statements it seems that this assertion was based on views about race and
biological determinism. Such a reductionist view may lead one to question the
validity of this viewpoint. It could be reasoned that interviewees agreed to
amnesty because Cambodian domestic law allows the King to grant amnesty or
perhaps because the interviewers introduced the idea of amnesty to them.
Interviewees said that amnesty was acceptable according to the law, [FN83] or
agreed to amnesty at one point in the interview but later stated a strong desire
for punishment. [FN84] While some interviewees did seem to agree with the idea
of amnesty, it is important to note these concerns and reservations.
Another
justification for amnesty, used to secure amnesty for Ieng Sary (Brother Number Two), is that of
national reconciliation. Interestingly, national reconciliation was not directly
raised in the context of amnesty in any of the interviews. It is debatable
whether amnesty is preferable to punishment for *147 purposes of stability and
security. An amnesty provision similar to the one used by the South African
Truth and Reconciliation Commission provides an incentive for perpetrators to
confess their deeds and establish a complete picture of the truth, and this form
of forgiveness can also help to put an end to cycles of retribution and
violence. However, stable democracies must be based on a state of law in which
citizens are held legally accountable for their actions. Any amnesty policy
should strive toward assessing accountability and addressing guilt through
social punishment rather than adopting blanket impunity.
Interviewees
who disagreed with amnesty were most often nongovernmental organization (NGO)
workers, women, and politicians. The NGO workers interviewed were concerned
about human dignity and the value of human life. They also spoke about the
legitimacy of international laws of genocide and other crimes against humanity.
[FN85] While politicians may have had ulterior motives for opposing amnesty
(i.e., punishing members of opposition parties) NGO workers expressed valid and
convincing concerns about the ramifications of amnesty on international criminal
law. Thus it may be wiser to try top leaders and establish a truth commission
for the rank and file violators.
One powerful
statement by an interviewee justifying his refusal of amnesty was: "For whom
should one have pity? Pol Pot or two million Cambodians?" [FN86] Many Cambodians
have suffered for twenty years with little or no redress, and are eager for
justice. This sentiment highlights the ability of many interviewees to transfer
the blame for what happened during the Khmer Rouge rule to the regime's top
leaders. A denial of amnesty to the top leaders would allow Cambodians to
relieve the anger, loss, and pain that has been stored for years, and perhaps to
forgive the lower-level members of the Khmer Rouge who were following the
coercive orders of top leaders.
THEME 6: Reestablishing Law. A sixth
leitmotif was the establishment of rule of law in Cambodia. Two Royal Government
of Cambodia officials were particularly adamant on this topic, but it was also
brought up, directly or indirectly, by almost everyone interviewed. In June
1997, the National Assembly had not convened for three months. The
Constitutional Court had not yet been created, and could only be installed by
the Supreme Council of Magistrates. Even more absurdly, the Supreme Council of
Magistrates itself had not yet been created. [FN87] In July 1997, Hun Sen took
power through a coup, [FN88] blatantly defying constitutional methods of
changing the government. The co- Prime Minister, Ung Huot, was installed by Hun
Sen in an undemocratic fashion. [FN89] Forty supporters of Ranariddh were killed
and twenty Members of Parliament allied to him fled during and directly after
the coup. [FN90] While many returned, they face the threat of retaliation from
Hun Sen if they step too far out of line.
*148
Elections were held on July 26, 1998, in an attempt to provide a facade of
democracy. Predictably, the strongman Hun Sen won the election after a campaign
of intimidation of opposition parties, purchasing of votes, and nearly complete
media control. [FN91] Diplomats, political analysts, and human rights monitors
confirmed widespread intimidation, inadequate monitoring of the polls and many
opportunities for fraud. [FN92] Prince Norodom Ranariddh and Sam Rainsy, the
opposition leaders, continue to protest the results, [FN93] but their supporters
living in the villages bear the brunt of their loss, subject to harassment and
threats. [FN94]
While
everyone suffers under such a situation, it is the poor and working classes, the
politically disenfranchised, who suffer the most. Uneven application of laws,
difficulty in bringing lawsuits, lack of civil rights, and impunity enjoyed by
unscrupulous officials [FN95] prevent the average citizen from living above
subsistence level. In a country rich in resources and arable land, this is a
travesty. One could argue that a trial would establish a precedent of legal
accountability, and perhaps translate into improvements in the Cambodian legal
system. More importantly, it is fairly clear from these circumstances as well as
from the opinions of the interviewees that Cambodia is incapable of setting up a
fair and impartial trial by itself. Thus, a tribunal or truth commission must be
international, and should play a role in helping Cambodia implement a legitimate
and functioning legal system. [FN96]
THEME 7:
Education. The final theme that emerged in the interviews is the dire need for
formal education and schools. Some interviewees convincingly argued that the
high levels of illiteracy and lack of formal education in Cambodia set the stage
for the Khmer Rouge to come to power in the first place. [FN97] To prevent the
return of a similar regime and to repair the damage done by the Khmer Rouge,
education should be a top priority.
Until more
exhaustive research is done and culpability is legally established, it will
continue to be difficult to teach recent Cambodian history in school. Since the
1993 elections, the Khmer Rouge era (1975-1979) has been removed from history
books [FN98] and the curriculum in general in Cambodia. This raises at least two
obvious concerns. First, if children are not taught about the atrocities and
crimes committed by the Khmer Rouge, this group or another like it might again
grasp hold of political power and instigate a new reign of terror. A Cambodian
populace that is aware of and understands the reasons for the 1975-79 genocide
will be much more capable of preventing the recurrence of such a tragedy. The
second potential problem is that a whole generation of Cambodians will not know
the powerful history of their own country. Many of the Cambodians interviewed
had a great desire to know "the truth" about who was responsible for atrocities
committed against their families and friends. [FN99] It is important for healing
purposes that this "truth" be officially accepted and disseminated.
*149 The
Khmer Rouge's nearly complete obliteration of teachers, professors, and schools
has left a devastating mark on Cambodian society. As a result of the elimination
of educated classes, teachers themselves are barely educated, usually having
only a six-week training session to procure their jobs. Teachers' salaries range
from a high of US$ 25 per month to a low of US $ 15 per month. Even translated
into spending power in the Cambodian economy, this is a paltry sum. This
situation forces teachers to take side jobs for pay, including teaching extra
classes and tutoring those who can afford it. Thus a "free" education system
becomes an inadequate one, as teachers are drawn to better paying jobs, and only
those who can pay for it receive a decent education. The constant power
struggles in the former coalition government meant that the focus in building
new schools was on the showiness of the buildings rather than the quality of its
teachers and curriculum. Education is not mandatory in Cambodia, so many
children fail to attend school, particularly if parents in economic need require
additional income. Even those who attend school face the problem of inadequate
teachers described above, as well as classes that meet sporadically and are
often short in duration. [FN100] This problem exists also at the university
level. Private universities tend to attract the best teachers away from the
public universities. While most students at the public universities come from
wealthy families, any suggestion of charging tuition or fees is roundly
dismissed since the parents of these students are generally government
ministers. The unfortunate state of education in Cambodia will only serve to
widen the already palpable gap between wealthy and poor, leaving the poor
illiterate and allowing education for only those who can pay for it.
[FN101]
This
situation then becomes "le serpent qui se morde la queue'' [FN102] since it is
difficult for people lacking formal democratic education to choose political
representatives who will fight for their interests. Indeed as a Royal Government
of Cambodia official told me, in one province, citizens elected a representative
who was a good singer simply because they liked his voice. [FN103] Further,
economic vulnerability can lead to the absence of real political choice.
Understandably, indigent people may be more concerned with obtaining food and
shelter than with analyzing the political situation in their area, and may be
swayed by political candidates who provide them with material benefits in
exchange for their votes. Such politicians may not represent the interests of
the voters during their tenure in office, and the economic restraints faced by
poor people will make it difficult to challenge politicians who fail them. Lack
of education reproduces itself through the political process, and should be
addressed through reparations.
*150 A TRUTH COMMISSION
"Hatred is not conquered by hatred."
--Buddhist saying
[FN104]
The
information from this study suggests that Cambodians lack a shared picture of
their history. A shared perspective would be necessary for social consensus and
peace (i.e. to repair the harms perpetrated by the Khmer Rouge and to prevent,
through education, such atrocities from recurring in the future). A tribunal for
Cambodia currently appears imminent; [FN105] while genocide should not go
unpunished, the limitations imposed by the structure of a trial may deny
Cambodians access to the full truth about the Khmer Rouge regime. [FN106] A
truth commission could paint a broader picture of Cambodian history from 1975 to
1979, and is therefore a necessary complement to a tribunal. Without first
creating a full picture of Cambodian history, it may be difficult for Cambodians
to determine exactly which members of the Khmer Rouge should be on trial.
In the
unique case of Cambodia, it appears that a truth commission is a vital component
of any policy to address the atrocities committed by the Khmer Rouge. First, a
truth commission would be far more responsive to Cambodians' desire for
information regarding the Khmer Rouge and their chain of command than would a
tribunal. Second, "national reconciliation" is an overriding goal for many
Cambodians, and is arguably more consistent with Buddhist philosophy than a
trial. Third, Cambodia is a country that direly needs development funds in every
area of society, so money that would be spent on an international trial of
numerous perpetrators may be better allocated towards a limited trial, truth
commission, and development projects. While genocide and crimes against humanity
must not fester, a trial of top leaders combined with a truth commission could
minimize this risk and establish a shared historical memory to enable Cambodians
to leave the Khmer Rouge era in the past.
Interviewees
repeatedly emphasized the need to find out who supported the Khmer Rouge, both
directly and indirectly. Due to the secrecy of the Khmer Rouge, most Cambodians
are ignorant of the composition of the Permanent Committee and other committees
that planned the genocide. [FN107] The regime has been characterized as a
"prison without walls," as it was organized to strip the prisoners (Cambodians)
of their freedom and individuality. Prisoners could not take any actions that
were not approved by the wardens (the Khmer Rouge leadership), and they could
only see the guard in charge of their cellblock. They did not know the identity
of other guards nor of prison officials. Most knew the warden's name (Pol Pot)
but had never laid eyes on him. Fortunately for those investigating this era,
including the Documentation Center of Cambodia (DC-Cam), the Khmer Rouge left a
long paper trail, documenting their killings with obsessive regularity.
*151
DC-Cam has undertaken a large amount of the necessary information gathering, but
there is still much work to be done in this realm. [FN108] The data already
collected must be analyzed and weighed by an independent, authoritative body. In
addition, fact-finding expeditions and research are needed in the realm of
indirect support and the culpability of other nations. Thus not only must the
prison warden be found, but also the government that funded the prison and the
organizations that sent advisors to help run it. It may be necessary to examine
the culpability of those members of the international community who were capable
of breaking into the prison and freeing the prisoners but failed to act. To cull
the amount of knowledge of the Khmer Rouge era that Cambodians seek, then, it
seems a truth commission with its strong research and investigation focus may be
more effective than a tribunal.
The
interviews suggest that some Cambodians, particularly those from rural areas and
lower socio-economic classes, place a higher priority on peace and stability
than on retributive justice for the Khmer Rouge. [FN109] Some Cambodians from
higher socio-economic classes believe that Buddhist philosophy prescribes
amnesty and truth over revenge. [FN110] While a strong argument can be made for
the punishment of genocidal regimes in terms of international law precedents and
the deterrence effect, a fragile state such as Cambodia may not be able to
withstand the ramifications of widespread trials. If the number and composition
of defendants in a trial were limited at the outset, other Cambodians involved
in Khmer Rouge activities would have much less to fear from a trial. While old
wounds would still be opened, fear of punishment on the part of the general
populace could be assuaged. Further, a truth commission could point to the
guilty lower down in the Khmer Rouge chain of command and enumerate their acts
while granting amnesty and allowing society to heal.
Both
interviewees and the state of the country after twenty years of war highlight
the need for an accountability mechanism to provide substantial reparations to
the Cambodian people. The top priorities are the establishment of an educational
system and the rule of law. While neither of these goals can be achieved without
the cooperation of the Royal Cambodian Government, the government also needs
international assistance in the form of both training and funding. An
international tribunal that aims to prosecute many members of the Khmer Rouge
would be extremely expensive and would poach funds from the more important goal
of development. When presented with the choice between a trial and development
of civic institutions necessary for democratic stability, the answer for a large
number of Cambodians would be development.
*152 RECOMMENDATIONS
Working from
the assumption that a truth commission is vital to rehabilitate Cambodian
society, it is easy to articulate several recommendations about its structure.
By definition, a truth commission is a highly flexible accountability mechanism,
and can be sculpted to fit the needs of each individual country.
First, the
Cambodian genocide was characterized by highly centralized control, which made
it almost impossible for Cambodians to disobey the orders of the Khmer Rouge
cadre. [FN111] Many of those who survived the Khmer Rouge era did so because
they followed orders, ranging from rationingmeals in portions that caused people
to starve, to bayoneting people in the backs of their necks. While it is clear
that the top leaders are culpable, the question of guilt becomes much more
complex when applied to the rest of the population. A truth commission for
Cambodia would have to take this into account, and one recommendation would be
to follow the model of conditional amnesty by the South African Truth and
Reconciliation Commission. [FN112] In the unique Cambodian context, an amnesty
provision would allow people to express their experience as both victim and
perpetrator at the same time, rewarding them with amnesty if they confess to the
atrocities that they committed. Thus participation in the "punishment" of
admitting guilt publicly metes its own reward. This would encourage Cambodians
to tell their stories, even if they must admit to killing other Cambodians. In
the case of Cambodia, an amnesty provision seems to be the only realistic avenue
for obtaining testimony from a large percentage of the population.
While the
majority of interviewees rejected amnesty for top leaders, [FN113] their opinions on amnesty for
lower-ranking Khmer Rouge criminals were less clear. If a trial is limited to
top leaders, amnesty can be extended to those lower on the command chain after
they have confessed in front of a truth commission. Through such a structure,
punishment can be meted out to those guilty of committing atrocities in the
Khmer Rouge era in a manner that will help to end the cycles of retribution and
revenge. While blanket amnesties condone past abuse and encourage future abuse,
a conditional amnesty would help to rebuild civil society by encouraging
dialogue and ordering non-legal punishment. [FN114] The social humiliation of
public confession and apology is punishment in and of itself, and public
acknowledgment of atrocities can be as beneficial to victims' healing processes
and to advancing the rule of law as a legal judgment. [FN115]
A Cambodian
Truth Commission would necessarily be located in Cambodia in order for it to
fully investigate and take testimony. However, interviewees unanimously held
that the Cambodian government would be incapable of conducting an unbiased trial
or truth commission. Thus a truth commission could be set up under U.N. auspices
or with the support of ASEAN. Many
*153 interviewees stipulated a desire for judges from Western democracies,
but Cambodian representation was also important to some respondents.
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