Who will be convicted of the Khmer Rouge’s war crimes?
On a steamy Cambodian morning last spring, I wandered through Pailin’s central market. In a few hours, I would meet Nuon Chea, the most senior surviving leader of the Khmer Rouge, and I wanted to bring him a present. But what does one buy an accused mass murderer?
I walked past one stall where a woman fanned flies from thick cuts of bloody meat. At another, glass display cases held clunky gold jewellery encrusted with locally mined gemstones. That might be fitting: the gem trade in this rough town near the Thai border helped to fund Chea and the rest of his regime after 1979, when they were driven from Phnom Penh by Vietnamese troops. For the next two decades, Khmer Rouge rebels continued to launch attacks on the rest of Cambodia from their mountain strongholds. The movement’s last remnants surrendered in 1998, and since then Chea had lived in peace near Pailin.
At last, I stopped at a fruit stand with bunches of ripe-to-bursting grapes and dark purple mangosteens. The fruit basket was a strategic decision. Local journalists said that a stack of American bills, judiciously distributed, could get me past Chea’s handlers for a private meeting with the man. I didn’t want to buy my way in, but I didn’t want to be turned away at his door either. I wanted to sit down and hear him explain his own part in the three-year, eight-month, and twenty-day reign of terror that saw one in five Cambodians die from starvation, disease, torture, or execution.
Cambodians will soon have a similar opportunity. Chea was arrested in September and taken by helicopter to Phnom Penh, where he now shares a detention facility with four other well-known former Khmer Rouge leaders: Khieu Samphan, the former head of state of the Khmer Rouge regime; Ieng Sary and his wife, Ieng Thirith, the former foreign minister and minister of social affairs, respectively; and Kaing Guek Eav (known as “Duch”), head of the Tuol Sleng interrogation centre, where thousands of people were tortured and condemned to death. The prisoners’ cases are being investigated by the Extraordinary Chambers in the Courts of Cambodia (eccc), a UN-backed tribunal created for this sole purpose. One day, perhaps as early as this fall, Chea and the others will be led into courtrooms and put on trial for war crimes and crimes against humanity.
Chea was still a free man on the day I pulled into the dirt driveway of his rural homestead. A thick-necked man with powerful forearms introduced himself as Chea’s son. He led me past a stately blue bungalow to a rain-weathered hut on stilts at the back of the property. Laundry dried in the sun on the dilapidated porch, next to several potted cacti. As I climbed the plank staircase, the gift basket’s pink ribbons and cellophane crinkled in my hands.
I entered to find Chea dressed in a white silk shirt and a gaudy checkered sarong. He was now in his early eighties, his hair white and thinning, his face hollowed, and his narrow purple lips pursed in distrust. But his gaze was self-assured, lucid, and testing; he waved imperiously, and his son took the basket and laid it beside the refrigerator. I’d have my audience.
In a schoolmaster’s stern tone, Chea was soon explaining that Cambodian history was driven by a series of invasions by outside powers. After French colonization came the Americans, then the Vietnamese. His account was detailed, but with one glaring omission: the Khmer Rouge period itself. The only mention he made of his own government’s rule was to suggest that outsiders had exaggerated the number of deaths. Cambodia, the Khmer Rouge, and Chea himself were all merely pawns of outside forces.
When I tried to question this story, he flicked his bamboo fan in irritation and announced that he needed to rest. His son stood up and gestured toward the door. A fruit basket would not be enough to get any serious reflection out of this man, let alone the truth.
In court, Chea’s alleged personal involvement in Cambodia’s devastation will be supported by hard evidence, from captured execution orders to eye-witness testimony. But if the tribunal focuses narrowly on the actions of a few individuals, it risks obscuring the bigger picture; however heinous his crimes, Chea is right that the Khmer Rouge was not simply a homegrown phenomenon. Ideally, the eccc process will expose and condemn the deeds of former leaders, while at the same time reminding the international community of its share of responsibility. That’s a lot to ask of criminal trials, but it seems to be what many Cambodians want — a fact that became clear when I visited the courtroom where Chea will be tried.
The Extraordinary Chambers are located in a military compound on the outskirts of Phnom Penh. On my way there, I became ensnared in a rush-hour crush of motorcycles, taxis, fruit stands on wheels, and dashing pedestrians. Three decades ago, the city was empty, evacuated by the Khmer Rouge to scatter the country’s traditional economic and political elite. Today’s traffic jams, random gun violence, and large homeless population are problems the capital shares with cities from Mumbai to Toronto. For better or worse, Phnom Penh can claim to be unexceptional.
In fact, Cambodia today could be dismissed as insignificant. It is tiny and poor, a territory half the size of Newfoundland and Labrador, with an economy less than 1 percent the size of Canada’s. What gives Cambodia an important — and tragic — place in world history is its continuing role as an ideological battleground. Most recently, it was a front line in the Cold War, with the US, Maoist China, and Soviet-backed Vietnam each using the Khmer Rouge as a tool to advance its interests. Then, in 1992, Cambodia became the first modern recipient of a major UN “nation-building” intervention, a military and political tsunami that cost $1.5 billion (US) and produced mixed results.
One of the consequences of Cambodia’s war-wracked decades is the confusion many of its citizens feel about their history. Everywhere I travelled, people asked me, Why did we go hungry for four years? Why were children given guns and families sent to the killing fields? Why were we invaded and driven to civil war?
This confusion has been exacerbated by the Cambodian government, which has discouraged public debate about the past and stripped recent history from school curricula. Prime Minister Hun Sen set the tone when, as the last Khmer Rouge holdouts were surrendering in 1998, he told Cambodians to “dig a hole and bury the past and look to the future.” Today many young people are skeptical of the stories their parents tell of the Khmer Rouge years, stories that seem too horrific to be true.
The trials of former Khmer Rouge leaders will undoubtedly trigger a new debate about the past, but the shape it will take remains nebulous. Funded by a $56.3-million (US) donation from a voluntary group of countries (including Canada), the eccc is a new and imperfect experiment in international justice — one that has teetered on the brink of self-destruction since it began operations in September 2006. Repeated allegations of political interference, ineptitude, and corruption prompted a United Nations Development Programme audit, which found that many of the Cambodian staff were unqualified and overpaid for their positions. In early 2008, the tribunal nevertheless asked for another $114 million and a two-year extension of its original three-year term; as this article went to print, the donor countries had not yet agreed to the increase. Despite the tribunal’s early difficulties, some Cambodians want its mandate to be expanded even further, and that afternoon in Phnom Penh I began to understand why.
I arrived at the compound at the same time as a bus carrying several dozen Cambodian villagers, there for one of the tribunal’s outreach events. We filed into the peach-coloured courthouse and sat down in the plush blue seats of the main courtroom. An eccc staff member carefully described the upcoming trials, taking care to introduce such exotic concepts as “due process.” (In Cambodia’s justice system, the average criminal trial takes less than thirty minutes, and the verdict can sometimes go to the party that pays the largest bribe.)
After the presentation, the villagers, who’d travelled from the northwestern rice-producing province of Battambang, began to ask questions. “Will Pol Pot be put on trial? ” asked a stout farmer. No, explained the staffer. Pol Pot died in the jungle in 1998. “Can you dig up his bones and put them on trial?”
The reply — that the dead cannot be tried under international law — seemed to baffle the questioner. Many Cambodians believe that the spirits of the dead are reincarnated or return as ghosts. Why, some ask, shouldn’t the top Khmer Rouge leader’s name and spirit bear the disgrace? According to a recent study by Tara Urs for the Open Society Justice Initiative, this is just one of the ways in which a Westernized legal proceeding may fail to provide meaningful symbolic justice. Some also want to see the execution of any living former leaders found guilty, a penalty the eccc cannot order. Others want lower-level Khmer Rouge cadres put on trial.
But the visitors from Battambang were most concerned about the prosecution of non-Cambodian perpetrators. A young man waved his arm in the air. “What about those who stood behind the Khmer Rouge?”
“What about the French professors?” a grey-haired man quickly interjected — a reference to the years Pol Pot spent in France, where he became a Communist ideologue. The questions continued. What about the Vietnamese? What about the United Nations, which did nothing while we suffered? The villagers seemed willing to cast the net even further than Nuon Chea had.
Each time, the answer was the same. The eccc’s mandate is narrow: to try senior leaders of Democratic Kampuchea, Cambodia’s official name under the Khmer Rouge, and those most responsible for violations of domestic and international law during that period. That’s where the investigations will end.
What questions will, as a result, be left unanswered?
For starters, did Americans violate international laws when they bombed Cambodia between 1965 and 1973? The bombings, which took place under Presidents Johnson and Nixon, often with direct oversight by Henry Kissinger, targeted Viet Cong and North Vietnamese forces, and later the Khmer Rouge itself. But the US wasn’t striking just military targets. Using recently released American government documents, scholars Taylor Owen and Ben Kiernan have estimated that the United States dropped more than 2.7 million tons of explosives on Cambodia — more destructive power than the Allies dropped on Europe during the whole of World War II. The best estimates to date of Cambodian civilians killed in those bombings vary from 50,000 to 150,000, but Owen and Kiernan’s work suggests the number is significantly higher.
Americans aren’t the only foreigners in the dock of public opinion. What about the Chinese leaders of the time, who provided weapons and funds to the Khmer Rouge government as it oversaw 1.7 million deaths? And although the Vietnamese helped free the country from the Khmer Rouge, some Cambodians have stories of brutal treatment at the hands of their liberators.
These are valid legal questions. Answering them, however, could seriously embarrass powerful members of the international community, which might explain why, in creating the eccc, donors pushed for an exclusive focus on the Khmer Rouge. And Prime Minister Hun Sen was happy to go along. His defeat of the Khmer Rouge, first as a part of the invading Vietnamese forces in 1979, and then as the government leader who engineered the rebels’ final surrender in 1998, continues to lend legitimacy to his corrupt and repressive government. But Hun Sen doesn’t want too exhaustive an investigation of the Khmer Rouge regime either. Before defecting, he was himself a Khmer Rouge soldier, and several powerful members of his government held more senior positions in the movement. Wide-ranging trials, let alone a South Africa–style truth and reconciliation commission, could bring out dark, uncomfortable secrets. By contrast, a few carefully chosen indictments could make the government look good, and help the international community wash its hands of complicity.
Nuon Chea’s defence team will likely argue his distorted view of Cambodian history (in which the country was a puppet manipulated by external interests) hoping to convince the general public — and perhaps the judges — that the eccc is a political show trial, the latest instance of outside meddling. That strategy would probably fail, because the Khmer Rouge leaders cannot realistically portray themselves as victims of circumstance. But Chea and his comrades shouldn’t be the only ones to address international involvement. With a little nimbleness and fortitude, eccc prosecutors and judges could devote some attention to the broader historical context. Foreign governments could open their files to historians, and even make public apologies for past actions. And civil society groups in Cambodia could use revelations from the trials in more balanced public education campaigns about the country’s history.
Chea exemplifies another difficulty posed by the eccc’s narrow focus, however. Will Cambodians look at the former Khmer Rouge leaders in the courtroom and see tyrants brought low, or defendants too old and frail for punishment? For this reason, among others, the trials will likely yield only modest benefits. The perpetrators of major atrocities are almost never revealed as evil masterminds or psychopathic monsters, and the suffering they have caused is never matched by a sufficiently profound motive or shocking courtroom revelation. As Hannah Arendt observed while reporting on the trial of the Nazi high official Adolf Eichmann, the answer to the question “Why were so many people killed?” is always somewhat banal.
But there is, perhaps, something redemptive in this very banality. That thought crossed my mind in the market in Pailin, as I tried to decide whether to add lychee or melon juice to Nuon Chea’s fruit basket. Was it right, I wondered, to bring a gift to a man believed to be one of the great murderers of the twentieth century?
It then occurred to me that I was about to enact a familiar custom, presenting a gift of food to an elder. Respect for age and gustatory pleasures were the kinds of traditions the Khmer Rouge had tried to stamp out, when they induced children to inform on their parents and forced a nation to live on rice gruel. What was more, I could, without fear, meet a man whose government once plunged an entire country into terror. As I added a plump, fragrant orange to Chea’s basket, I realized that these militants and their ideology had truly been defeated. If nothing else, the trials of Khmer Rouge leaders will remind Cambodians of this happy fact.