Justice delayed or too late for justice? The Khmer Rouge Tribunal and the Cambodian “genocide” 1975–79
2007; Taylor & Francis; Volume: 9; Issue: 2 Linguagem: Inglês
10.1080/14623520701368602
ISSN1469-9494
Autores Tópico(s)Vietnamese History and Culture Studies
ResumoClick to increase image sizeClick to decrease image size Notes 1 For historical accounts of the Khmer Rouge regime see Elisabeth Becker, When the War was Over: Cambodia and the Khmer Rouge Revolution (New York, Touchstone, 1986); Craig Etcheson, The Rise and Demise of Democratic Kampuchea (Boulder: Westview, 1984); Nayan Chanda, Brother Enemy: The War after the War (New York: Harcourt Brace Javanovich, 1986); Karl D. Jackson, ed., Cambodia 1975–1978: Rendezvous with Death (Princeton: Princeton University Press, 1989); David P. Chandler, The Tragedy of Cambodian History (Yale: Yale University Press, 1991); Michael Vickery, Cambodia 1975–1982 (Chiang Mai: Silkworm Books, 1999); Ben Kiernan, The Pol Pot Regime. Race Power, and Genocide in Cambodia under the Khmer Rouge 1975–79, 2nd edn (New Haven: Yale University Press, 2002). Biographies of Pol Pot are David P. Chandler, Brother Number One: A Political Biography of Pol Pot (Chiang Mai: Silkworm Books, 1999) and Philip Short, Pol Pot: The History of a Nightmare (London: John Murray, 2004). 2 For a detailed account of the events between 1970 and 1975 see Wilfried P. Deac, Road to the Killing Fields: The Cambodian War of 1970–1975 (College Station: Texas A&M University Press, 1997). 3 On the short and only symbolic Constitution of 1976 see David P. Chandler, “The constitution of Democratic Kampuchea: the semantics of revolutionary change,” Pacific Affairs, Vol 49, 1976, p 505. 4 See most notably Francois Ponchaud, Cambodia: Year Zero (London: Allen Lane, 1978). 5 On the statistics of death see Patrick Heuveline, “Between one and three million: toward the demographic reconstruction of a decade of Cambodian history (1970–1979),” Population Studies, Vol 52, 1998, p 59; Ben Kiernan, “The demography of genocide in Southeast Asia: the death tolls in Cambodia 1975–79 and East Timor 1975–80,” Critical Asian Studies, Vol 35, 2003, pp 585–597; Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (London: Greenwood, 2005). 6 The term became famous by the movie “The Killing Fields” (1984) by director Roland Joffé. On the mapping of mass graves all over Cambodia see Etcheson, 2005, op cit, Chapter 7. 7 On “S. 21” see David P. Chandler, Voices from S-21: Terror and History in Pol Pot's Secret Prison (Chiang Mai: Silkworm Books, 2000); for the report of a surviving prisoner see Vann Nath, A Cambodian Prison Portrait: One Year in the Khmer Rouge's S-21 (Bangkok: White Lotus, 1998). 8 For overviews, see e.g. Peter J. Hammer and Tara Urs, “The elusive face of Cambodian justice,” in Jaya Ramji and Beth van Schaack, eds, Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts (Lewiston: E. Mellen Press, 2005), p 13; Steve Heder, “Hun Sen and genocide trials in Cambodia: international impacts, impunity, and justice,” in July Ledgerwood, ed., Cambodia Emerges from the Past: Eight Essays (De Kalb: Southeast Asia Publications, Center for Southeast Asia Studies Northern Illinois University, 2002), p 176. 9 On the political background Stephen J. Morris, Why Vietnam Invaded Cambodia: Political Culture and Causes of War (Stanford: Stanford University Press, 1999), claiming that stopping the human rights violations was not a priority concern; on justification under international law Gary Klintworth, Vietnam's Intervention in Cambodia and International Law (Canberra: 1989). 10 Howard J. De Nike, John Quigley and Kenneth J. Robinson, eds, Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Philadelphia: University of Pennsylvannia Press, 2000); see also Tom Fawthrop and Helen Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal (London and Ann Arbor: Pluto Press, 2004), Chapter 3. 11 Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (New Haven: 2003), pp 61–62; Huy Vannack, The Khmer Rouge Division 807: From Victory to Self-Destruction (Phnom Penh: 2003), p 125. 12 See in particular the widely read report of a Finnish Inquiry Commission: Kimmo Kiljunen, ed., Kampuchea: Decade of Genocide—Report of a Finnish Inquiry Commission (London: 1984). 13 For a description of this absurd Cold War policy see Fawthrop and Jarvis, op cit, Chapter 2. 14 See Steven R. Ratner, “The Cambodia settlement agreements,” American Journal of International Law, Vol 87, 1993, pp 1–41. 15 For analysis of the negotiation process see, inter alia, Steve Heder, in Ledgerwood, op cit, p 176; Stephen Heder and Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge, 2nd edn (Phnom Penh: Documentation Center of Cambodia, 2004), p 11; Daniel Kemper Donovan, “Joint UN–Cambodia efforts to establish a Khmer Rouge Tribunal,” Harvard International Law Journal, Vol 44, 2003, pp 551–576; Fawthrop and Jarvis, op cit, p 155; Etcheson, 2005, op cit, p 141; Kelly Whitley, in John D. Ciorciari, ed., The Khmer Rouge Tribunal (Phnom Penh: Documentation Center of Cambodia, 2006), p 29. 16 Report of the “Group of Experts,” UN Doc A/53/850-S/1999/231; on the work of the group and the report see also (group member) Steven R. Ratner, “The United Nations Group of Experts for Cambodia,” American Journal of International Law, Vol 93, 1999, pp 948–953; Fawthrop and Jarvis, op cit, Chapter 7. 17 For an overview of the positions of national, international and foreign stakeholders see Etcheson, 2005, op cit, Chapter 9. 18 A significant number of countries pledged to participate to the budget, with Japan being the biggest donor (US$21.6 million). In July 2006, about US$6 million was still not secured. 19 For more details on the court see Scott Worden, “An anatomy of the Extraordinary Chambers,” in Ramji and van Schaack, eds, op cit, p 171; Ernestine Meijer, in Cesare P. R. Romano, André Nollkaemper and Jann K. Klemper, eds, International Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford, Oxford University Press, 2004), p 207 as well as the contributions in Ciorciari, ed., op cit. The tribunal was formally called “Extraordinary Chambers” in order to avoid a feared conflict with the Cambodian Constitution, which does not explicitly provide for special courts. 20 Law and Agreement are available in English at http://www.cambodia.gov.krt/; reprinted also in Ciorciari, ed., op cit. 21 Short biographies of all judges and prosecutors were published by the Phnom Penh Post (www.phnompenhpost.com). 22 See in more detail Aubrey Ardema, in Ciorciari, ed., op cit, pp 55–79. 23 This reference is problematic, as the Conventions on Cultural Property and on Diplomatic Relations do not establish individual crimes or responsibilities, see Ardema, ibid, p 68–69. 24 Charges because of these crimes may be functional as a kind of safety net for the prosecution, providing an alternative for conviction if convictions because of the international crimes cannot be achieved. Compare Ardema, ibid, p 70. 25 For a preliminary assessment see Heder and Tittemore, op cit, identifying seven potential candidates (two of whom have died since publication of that analysis). 26 Report of the Secretary General on Khmer Rouge Trials, UN GAOR, 59th Sess., UN Doc A/59/432, October 12, 2004. 27 For a critical assessment on this narrowness in personal jurisdiction see Steve Heder, “Reassessing the role of senior leaders and local officials in Democratic Kampuchea crimes: Cambodian accountability in comparative perspective,” in Ramji and van Schaack, eds, op cit, p 377. 28 On “Duch” see Nic Dunlop, The Lost Executioner: A Story of the Khmer Rouge (London: Bloomsbury, 2005). Dunlop is a journalist who found Duch living under new identity in a village near Pailin in the west of Cambodia in 1999. 29 See, for example, Khieu Samphan, Cambodia's Recent History and the Reasons behind the Decisions I Made (Phnom Penh: Ponleukhmer, 2004). 30 According to the UN-Government/Agreement (Art. 11 [2]) the ECCC have to decide on the scope of this amnesty; for an analysis see Ronald C. Slye, “The Cambodian amnesties: beneficiaries and the temporal reach of amnesties for gross violations of human rights,” in Ramji and van Schaack, eds, op cit, p 307. 31 For “mixed tribunals” see Romano et al., eds, op cit; Kai Ambos and Mohamed Othman, eds, New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Frenburg: Max-Planck-Institut fuer Auslaend Lisches und Internationales Strafrecht, 2003); Laura A. Dickinson, “The promise of hybrid courts,” American Journal of International Law, Vol 97, 2003, p 295. 32 Amnesty International, ASA 23/005/2003, April 23, 2003; for a reply see Gregory H. Stanton, “Perfection is the enemy of justice,” Searching for the Truth (Special English Issue), No 2, July 2003, p 40. 33 For a positive assessment see also Sarah Williams, “The Cambodian Extraordinary Chambers: a dangerous precedent for international justice?,” International and Comparative Law Quarterly, 2004, 53, pp 227–245. 34 Exceptions are always possible up to circumstances, as the (obviously reasonable) transfer of the trial against Charles Taylor from the Sierra Leone Court in Freetown to The Hague in 2006 illustrates. 35 See also Patricia Wald, “Iraq, Cambodia, and international justice,” American University International Law Review, Vol 21, 2006, pp 541–556: “The reality of future international justice may be at stake.” 36 To search for precedence by court decisions is not only problematic because Cambodia does not embrace the common law approach of binding precedent, but also because a tradition of reasoned and published court decisions is simply not existent. 37 For a critical assessment see Brad Adams, “Cambodia's judiciary: up to the task?,” in Ramji and van Schaack, eds, op cit, p 127. 38 See Worden, in Ramji and van Schaack, eds, op cit, p 189. 39 Ibid, p 204. 40 See also Caitlin Raiger, in “Open society initiative, justice initiatives,” New York, 2006, www.justiceinitiative.org, p 97. 41 Bonsou Sour, “The unique way the Khmer Rouge used language and its challenges for translators,” Searching for the Truth, Vol 4, 2005, p 51. 42 On problems of evidence see, for example, Julia Fromholz, in Ciorciari, ed., op cit, Chapter 4. 43 The Documentation Center of Cambodia was originally founded as field office of a genocide project of Yale University and is now an independent NGO. It has collected an immense amount of documents, researched other evidence (mapping of killing fields, etc.), it runs a useful website (www.dccam.org) and publishes a periodical (Searching for the Truth). On the work of DC-Cam see also Etcheson, 2005, op cit, Chapter 4. See also John C. Ciorciari with Youk Chhang, “Documenting the crimes of Democratic Kampuchea,” in Ramji and van Schaack, eds, op cit, p 221. 44 Cambodia has been a party to the Genocide Convention since 1950. 45 See e.g. Hurst Hannum, “International law and Cambodian genocide: the sounds of silence,” Human Rights Quarterly, Vol 11, 1989, pp 82–138; Kathryn Railsback, “A Genocide Convention action against the Khmer Rouge: preventing a resurgence of the killing fields,” Connecticut Journal of International Law, Vol 5, 1990, p 457. 46 On respective discussion in the 1980s see Hammer and Urs, op cit, pp 22–23. On February 26, 2007, the ICJ decided for the first time on such a genocide claim, but rejected the responsibility of the alleged perpetrator state (Bosnia and Herzegowina v. Serbia and Montenegro, General List No 91). 47 “Cambodian Genocide Justice Act,” Publ. L. No 103-236, §572 (a). 48 G.A. Res. 52/135, UN GAOR, 52d Sess., UN Doc A/52/49 (1997). 49 Kiernan, 2002, op cit; Fawthrop and Jarvis, op cit; Alexander Laban Hinton, Why Did They Kill? Cambodia in the Shadow of Genocide (Berkeley: University of California Press, 2005); Etcheson, 2005, op cit. 50 See Duffy, 1994, op city, p 83: “For the world community, the very mention of Cambodia has become synonymous with genocide.” 51 Chiorciari and Chang, in Ramji and van Schaack, eds, op cit, p 260: “Although historians, the media, and members of the public have consistently labelled the DK regime as ‘genocidal,’ proving genocide is a complex task.” To suggest there would be a consensus among legal academics that the Khmer Rouge committed genocide (Kiernan, 2002, op cit, “Foreword”), is simply wrong. 52 Convention on the Prevention and Punishment of the Crime of Genocide, U.N.T.S. 78 (277), January 12, 1951. 53 See Schabas, 2001, Problems of International Codification-Were the Atrocities in Cambodia and Kosovo Genocide? New England Law Review, 35, (2001), pp 287–502. 54 For an attempt to construct a wider crime of genocide under customary international law (with ius cogens quality) see Beth Van Schaack, “The crime of political genocide: repairing the Genocide's Convention's blind spot,” Yale Law Journal, Vol 100, 1997, pp 2259–2291. 55 Ibid. 56 A wider definition of genocide was discussed during the drafting of the ICC Statute, but finally rejected. 57 “Old people” is the term the Khmer Rouge used fort the urban population which was evacuated to the countryside in 1975; for a vivid description of the discrimination of “new people” see, for example, in Martin Stuart Fox and Bunheang Ung, The Murderous Revolution: Life and Death in Pol Pot's Kampuchea (Bangkok: Tamarind Press, 1998). 58 Wald, in Open Society Justice Initiative, 2006 (available at http://www.justiceinitiative.org). 59 Ysa Osman, Justice for the Cham Muslims under Democratic Kampuchea (Phnom Penh: Documentation Center of Cambodia, 2002); Ysa Osman, The Cham Rebellion: Survivors' Stories from the Villages (Phnom Penh: Documentation Center of Cambodia, 2006). 60 Most notably Kiernan, 2002, op cit; Ratner and Abrams, op cit, p 285: “strong prima facie case that the Khmer Rouge committed acts of genocide”; others disagree: see e.g. Short, op cit, p 446, who claims that crimes against humanity have been committed, but not genocide; against labelling as genocide also Chandler, 1992, op cit, pp 218–219. The assessment of the UN Group of Experts is more careful than Kiernan suggests (see Report of the Group of Experts for Cambodia, op cit, pp 19–20). 61 See Jennifer S. Berman, “No place like home: anti-Vietnamese discrimination and nationality in Cambodia,” California Law Review, Vol 84, 1996, p 817. 62 According to Khmer Rouge propaganda broadcasted on radio in May 1978 a war against Vietnam was easy to win as each Cambodian was considered capable to kill 30 Vietnamese in order to destroy Vietnam fully and still allow Kampuchea to remain. It seems unlikely that such propaganda can be the basis for genocide charges in an upcoming trial, as seems to be suggested by Ciorciari and Chang, op cit, p 262. 63 Term first used by Jean Lacouture, The New York Review of Books, March 31, 1977. 64 For sceptical voices regarding the possibility to prove genocide charges in a Khmer Rouges Tribunal see e.g. Schabas, 2001, op cit; Wald, 2006, op cit; Ardema, op cit, pp 60–61. 65 Hannum, op cit. 66 David Chandler's book Voices from S-21, op cit, has a chapter on “choosing the enemies” (pp 41–76), but it does not indicate the existence of particular groups of victims relevant under the Genocide Convention. 67 See Ardema, op cit, p 64. 68 Helen Fein, quoted by Patricia Wald, in Open Society Justice Initiative, op cit, p 85. 69 See the title of the most comprehensive analysis on genocide: William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000); the term crime of crimes is also used by the ICTR, see Prosecutor v Rutaganda (Case No ICTR-96-3-T), Judgment and Sentence, December 6, 1999, para 451; on the specific dimension of genocide see also ICTY, Prosecutor v Krstic (IT-95-14/2-T), Judgment, August 2, 2001, para 36: “The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all humankind, its harm being felt not only by the group targeted for destructin but by all of humanity.” 70 See, for example, Scott Luftglass, “Crossroads in Cambodia: the United Nation's responsibility to withdraw involvement from the establishment of Cambodian Tribunal to Prosecute the Khmer Rouge,” Virginia Law Review, Vol 90, 2004, pp 893–964, blaming the Cambodian government, and Gerald V. May III, “An (un)likely culprit: examining the U.N.'s contraproductive role in the negotiations over a Khmer Rouge Tribunal,” Boston College International and Comparative Law Review, Vol 27, 2004, pp 147–159, pointing at the UN. 71 Most recently the results of a survey conducted by the Cambodian Human Rights NGO “ADHOC,” February 2007; see also Khmer Institute for Democracy, Survey on the Khmer Rouge Regime and Khmer Rouge Tribunal (Phnom Penh: 2004) (with references to other surveys). Attitudes in the population are also researched in Laura McGrew, Truth, Justice, Reconciliation and Peace in Cambodia: 20 Years after the Khmer Rouge (Phnom Penh: 2000) and Suzannah Linton, “New approaches to international justice in Cambodia and East Timor,” International Review of the Red Cross, Vol 84, 2002, pp 93–119; William W. Burke-White, “Preferences matter: conversations with Cambodians on the prosecution of the Khmer Rouge leadership,” in Ramji and van Schaack, eds, op cit, p 97. 72 For an analysis from the perspective of religious teachings see Ian Harris, “‘Onslaught on beings’: a Theravada Buddhist perspective on accountability for crimes committed in the Democratic Kampuchea period,” in Ramji and van Schaack, eds, op cit, p 59. 73 Sok Sam Ouen, Director of Cambodian Defenders Project, Phnom Penh Post, February 2, 2000. 74 This is the central message of the establishment of the International Criminal Court. See also Diane F.Orentlicher, “Settling accounts: the duty to prosecute human rights violations of a prior regime,” Yale Law Journal, Vol 100, 1991, p 2537; John Dugard, “Dealing with crimes of a past regime: is amnesty still an option?,” Leiden Journal of Internatonal Law, Vol 12, 2000, p 1001; Christian Tomuschat, “The duty to prosecute international crimes committed by individuals,” in H. J. Cremer et al., eds, Festschrift für Helmut Steinberger (Berlin: Springer, 2002), p 317. 75 On the different aspects of transitional justice see Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000). 76 There is still discussion if some sort of compensation to victims might be provided for by the tribunal, but this will hardly be more than a symbolic exercise. See also Jaya Ramji, “A collective response to mass violence: reparations and healing in Cambodia,” in Ramji and van Schaack, eds, op cit, p 359. 77 Most comprehensively in respect to Cambodia, see Suzannah Linton, Reconciliation in Cambodia (Phnom Penh: Documentation Center of Cambodia, 2004) and McGrew, op cit. 78 Retributive justice is a term basically used for traditional criminal punishment, whereas restorative justice focuses on a process of restoring the well being of victims and the relationship between perpetrators and victims or society as a whole. On these concepts in respect to the ECCC see, for example, Kek Galabru, in Open Society Justice Initiative, op cit, p 151. 79 See Linton, 2004, op cit, pp 222–224. 80 See generally, for example, Robert Gellately and Ben Kiernan, eds, The Specter of Genocide: Mass Murder in Historical Perspective (Cambridge: Cambridge University Press, 2003); for an anthropological approach to Cambodia see Hinton, op cit. 81 So correctly Dinah PoKempner, “The tribunal and Cambodia's transition to a culture of accountability,” in Ramji and van Schaack, eds, op cit, p 351. 82 See most notably Kiernan, 2002, op cit. 83 In German court cases conducted in the 1960s concerning the Nazi crimes substantial and path-breaking historical research was undertaken by independent historical research institutes in behalf of the courts on the structure of the Nazi regime. Nobody would expect this kind of historical truth finding to take place in the framework of the ECCC. 84 See Linton, 2004, op cit, p 63. 85 For a comprehensive analysis see Adams, in Ranji and van Schaack, eds, op cit, p 127 (also mentioning the lack of professionalism and effectiveness of international efforts to assist in the improvement of the Cambodian legal system). 86 Legal and judicial reform is in the centre of the “Rectangular Strategy,” which Prime Minister Hun Sen presented as the governmental approach to development in Cambodia on July 16, 2004. 87 Who's Who in Cambodia, published under the auspices of the Information Ministry, Phnom Penh, 2006, p 299: “The judicial branch is supposed to be independent of the other two branches. However, in reality, the judicial branch in Cambodia is highly corrupt and can be easily pressured from the executive branch.” The Cambodian government acknowledged the problem (for example) in a report to the UN Human Rights Committee, UN Doc CCPR/C/81/Add. 12 (1998). 88 For a more substantial discussion of this question see PoKempner, op cit, p 333. 89 See, for example, the Report of the Special Representative of the Secretary General for Human Rights in Cambodia, Peter Leuprecht, E/CN.4/2005/116, of December 12, 2004. 90 See Etcheson, 2005, op cit, Chapter 10 (“Challenging the culture of impunity”), with references. 91 The German experience is an example. Atrocities committed by Germany in the time of National Socialist Dictatorship were brought into the courts immediately 1945 in the Nuremberg Trial, which is today widely considered to be the birthday of modern international criminal law; for an historical account with special attention to Cambodia compare Ratner and Abrams, op cit. This was not, however, a final word. In the 1960s and even later court trials on Nazi criminals caught much attention again. These were trials in German courts, in contrast to the justice imposed by the Allied forces immediately after the end of the war. Even today, more than 60 years after the collapse of Germany's worst ever period of history, the Nazi regime regime is occasionally on trial. Recently the Distomo case, during which Greek courts did hold Germany responsible for war crimes committed during World War II in Greece, reminded us of this legacy. On the Distomo case see most recently the judgement of the German Federal Constitutional Court, Decision of February 15, 2005 (available at www.bundesverfassungsgericht.de) and the profound legal analysis by Markus Rau, “State liability for violations of international humanitarian law: the Distomo case before the German Federal Constitutional Court,” German Law Journal, Vol 7, 2006, p 702 (available at www.germanlawjournal.com). 92 On the role of Cambodia in the US policies see William Shawcross, Kissinger, Nixon and the Destruction of Cambodia (New York: Simon & Schuster, 1980). 93 Criminal responsibility of US leaders including Henry Kissinger for the Cambodia bombings is discussed by Nicole Barrett, “Holding individual leaders responsible for violations of customary international law: the US bombardments of Cambodia and Laos,” Columbia Human Rights Law Review, Vol 32, 2001, pp 429–476; indications also at William A. Schabas, “Problems of international codification: were the atrocities in Cambodia and Kosovo genocide?,” New England Law Review, Vol 35, 2001, p 287.
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