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Will There Be a Trial for the Khmer Rouge?

Published online by Cambridge University Press:  28 September 2012


The scale of what happened under the Khmer Rouge regime in Cambodia between 1975 and 1979 is difficult to deal with (over one million Cambodians lost their lives), but efforts are now underway to bring at least some of the surviving leaders of the regime to justice. This essay explores the reasons for delay of the trials, citing:

The absence of international precedents prior to the 1990s;

The show trial of two Khmer Rouge leaders in 1979; and

The obstacles to a trial arising from geopolitical considerations in the 1980s (in which some powers now calling for a trial, including the United States, were effectively allied with the Khmer Rouge against the Vietnamese-imposed regime in Phnom Penh).

In the 1990s, following the Paris Peace Accords and the brief UN protectorate over Cambodia, demands for a trial came from overseas and from Cambodian human rights groups. The Cambodian regime considered the show trials of 1979 sufficient, however, and in 1998 Cambodian prime minister Hun Sen urged his compatriots to “dig a hole and bury the past.” Eager to regain foreign support for his regime after several brutal incidents in which political opponents were killed, Hun Sen has more recently agreed to limited international participation in a trial. A procedure targeting a few Khmer Rouge leaders seems likely in 2000, but Cambodian government control of the proceedings means that nothing like a truth commission or a wide-ranging inquiry will result.

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1 On deaths in DK, see Heuveline, Patrick, “Between One and Three Million: Towards the Demographic Reconstruction of a Decade of Cambodian History (1970–1979),” Population Studies 53 (1998), pp. 4665Google Scholar. The best overall accounts of the period are still Ponchaud, Francois, Cambodia: Year Zero (New York: Henry Holt, 1977Google Scholar); and Becker, Elizabeth, When the War Was Over (New York: Simon and Schuster, 1986Google Scholar).

2 Nino, Carlos, Radical Evil on Trial (New Haven: Yale University Press, 1996), p. 135Google Scholar. The passage is from Arendt, Hannah, The Human Condition (Chicago: University of Chicago Press, 1958), p. 241Google Scholar.

3 On S-21, see Chandler, David, Voices from S-21: Terror and History in Pol Pot's Secret Prison (Berkeley and Los Angeles: University of California Press, 1999Google Scholar). Duch, a born-again Christian, was arrested in 1999, after vanishing from sight for over a decade. Ta Mok, apparently unrepentant, was turned over to Cambodian authorities by the Thai in 1999.

4 For a bitter critique of the December 1998 amnesties, see Adams, Brad, “Snatching Defeat from the Jaws of Victory,” Phnotn Penh Post, January 22-February 4, 1999Google Scholar. For leng Sary's remarks, see Phnom Penh Post, August 20-September 2, 1999.

5 See Marcher, Annette, “Hammarberg: Impunity Cambodia's Problem,” Phnom Penh Post, October 29-November 11, 1999Google Scholar; Marcher, Annette, “Go It Alone Tribunal Seeks Foreign Gloss,” Phnom Penh Post, October 1–14, 1999Google Scholar; Marcher, Annette, “National KR Tribunal Takes Shape,” Phnom Penh Post, November 26-December 9, 1999Google Scholar. See also Burke, Jason, “Butcher of Cambodia Set to Expose Thatcher's Role,” The Observer (London), January 9, 2000Google Scholar.

6 See Marcher, Annette and Soeum, Yin, “Govt [sic] to Wrap Up Tight Trial Law,” Phnom Penh Post, December 24, 1999-January 6, 2000Google Scholar; and Associated Press (Phnom Penh), “Hun Sen Endorses US Proposal,” October 19, 1999. On Hun Sen's subsequent outburst, see Reuters (Phnom Penh), “Cambodia PM Lashes Foreign Demands on Rouge Trial,” November 18, 1999.

7 On the show trial, see Courier, Vietnam, ed., Kampuchea Dossier III: The Dark Years (Hanoi: Foreign Languages Press, 1979Google Scholar). Porter's, GarethVietnam: The Politics of a Bureaucratic System (Ithaca: Cornell University Press, 1993Google Scholar) points out that defense counsels were abolished in Vietnam in 1975, and were replaced by a court-appointed “socialist pleader … who was not expected to present a legal defense on behalf of [his] client” (p. 172). On S-21's metamorphosis into a museum, see Chandler, Voices from S-21, chap. 1; and Ledgerwood, Judy, “The Cambodian Tuol Sleng Museum of Genocidal Crimes: National Narrative,” Museum Anthropology 21 (1997), pp. 8398CrossRefGoogle Scholar.

8 Osiel, Mark, Mass Atrocity, Collective Memory and the Law (New Brunswick, N.J.: Transaction Press, 1997), p. 297Google Scholar, deplores what he calls a “slam dunk” verdict of the kind reached at the show trial. The S-21 guard Him Huy, who admitted taking part in the execution of prisoners there, was imprisoned in 1980, and mentioned that “several” other former employees at S-21 had been jailed for a time (author's interview, January 1998).

9 Vickery, Michael and Roht-Arriazi, Naomi, “Human Rights in Cambodia,” in Roht-Arriazi, Naomi, ed., Impunity and Human Rights in International Law and Practice (New York: Oxford University Press, 1995), pp. 243–51Google Scholar. On PRK historiography, see Ledgerwood, “The Tuol Sleng Museum”; and Frings, Viviane, “Rewriting Cambodian History To ‘Adapt’ It to a New Political Context: The KPRP's Historiography,” Modern Asian Studies (1997), pp. 807–46Google Scholar.

10 MacKinnon, Catherine, “Law's Stories as Reality and Politics,” in Brooks, Peter and Gewertz, Paul, eds., Law's Stories: Narrative and Rhetoric in Law (Cambridge: Harvard University Press, 1996), p. 245Google Scholar.

11 An interesting historical parallel would be the heroic status afforded to late-blooming resis-tants in France in 1944, to say nothing of the kindly treatment meted out to many former Vichy officials. See Thibault, Paul, “La culpabilité frančhise,” Esprit 24 (January 1991), pp. 2231Google Scholar; and Paxton, Robert O., “The Trial of Maurice Papon,” New York Review of Books (December 16, 1999Google Scholar).

12 Minow, Martha, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, Beacon Press, 1998), p. 151Google Scholar n. 14. On problems caused by the continuities between regimes, see pp. 134–35. Knapp, Steven, “Collective Memory and the Actual Past,” Representations 26 (Spring 1989), pp. 123–50CrossRefGoogle Scholar. See also Popkin, Margaret and Bhuta, Nehal, “Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?Ethics and International Affairs 13 (1999), pp. 99122CrossRefGoogle Scholar.

13 See Marcher, “Hammarberg: Impunity Cambodia's Problem”; and Beth Moorthy, “Govt [sic] Balks at UN Rights Inquiry,”Phnotn Penh Post, April 30-May 14, 1999.

14 For a skillfully organized survey of U.S. official thinking about the Khmer Rouge, see Metzl, Jamie Frederick, Western Responses to Human Rights Abuses in Cambodia, 1975–1980 (London: Macmillan, 1996CrossRefGoogle Scholar). Ironically, hundreds of thousands of victims of the Khmer Rouge, taking refuge in Thailand, soon found themselves “allied” with the Khmer Rouge.

15 On efforts to bring the Khmer Rouge to justice in this period, see Vickery and Roht-Arriazi, “Human Rights in Cambodia”; Hawk, David, “International Law and the Cambodian Genocide: The Sounds of Silence,” Human Rights Quarterly 11 (1989), pp. 82138Google Scholar; and Kiernan, Ben, “Cambodian Genocide,” Far Eastern Economic Review, March 1, 1990Google Scholar.

16 Roht-Arriazi, Impunity and Human Rights, p. 3. See also Orentlicher, Diane, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” Yale Law Journal (1991), pp. 2537–615;CrossRefGoogle Scholar and Nino, Radical Evil on Trial. Orentlicher argues forcefully for across-the-board action and concern, while Nino makes a case for a more cautious, contextualized approach to dealing with past wrongs. A recent, eloquent survivor's tale, suffused with recurrent memories, is Him, Chanrithy, When Broken Glass Floats (New York: W. W. Norton, 2000Google Scholar).

17 On the UNTAC period, see Findlay, Trevor, Cambodia: The Legacy and Lessons of UNTAC (New York: Oxford University Press, 1995Google Scholar). On the inclusion of the Khmer Rouge, see Kiernan, Ben, “The Inclusion of the Khmer Rouge in the Cambodian Peace Process: Causes and Consequences,” in Kiernan, Ben, ed., Genocide and Democracy in Cambodia (New Haven: Yale University Southeast Asian Studies, Monograph 41, 1993), pp. 192272Google Scholar.

18 Hammarberg summarized what he had been able and unable to accomplish in an interview with the Phnom Penh Post in November 1999. See note 5, above. The UN unit has recently moved away from monitoring human rights abuses and has concentrated more on trainingGoogle Scholar.

19 Prince Norodom Rannaridh, the head of FUNCINPEC, was for many years a professor of international law in France. He has never put his expertise to use either in pleading for a trial for the Khmer Rouge or, closer to home, in spearheading reform in Cambodia's almost dysfunctional judicial systemGoogle Scholar.

20 David Ashley's interview with a Khmer Rouge defector in 1996, quoted in Chandler, David, Brother Number One: A Political Biography of Pol Pot (Boulder: Westview Press, 1999), p. 179Google Scholar. See also Ashley, David W., “The Failure of Conflict Resolution in Cambodia: Causes and Lessons,” in Brown, Frederick Z. and Timberman, David G., eds., Cambodia and the International Community: The Quest for Peace, Development and Democracy (New York: Asia Society, 1998), pp. 4978Google Scholar, for an astute analysis.

21 On the coup, see Barber, Jason, “Democracy from the Barrel of a Gun,” Phnom Penh Post, July 12–24, 1997Google Scholar; and Chandler, David, “Democracy in Cambodia: Return to Sender, Not at This Address,” Asian Studies Review 21 (November 1997), pp. 3138CrossRefGoogle Scholar.

22 Quoted in Marcher, Annette and Sainsbury, Peter, “UN Seen Softening on Trial for Khmer Rouge,” Phnom Penh Post, September 3–16, 1999Google Scholar.

23 The preceding paragraphs benefit from my conversations with Crocker, David and from a reading of his excellent essay “Reckoning with Past Wrongs: A Normative Framework,” Ethics & International Affairs 13 (1999), pp. 4364CrossRefGoogle Scholar.

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