Why It Matters

Nic Dunlop

Understanding is key to success in Cambodia’s Khmer Rouge genocide tribunal

Last year former Khmer Rouge commander Ta Mok died in prison in Phnom Penh, allowing another unrepentant member of Pol Pot’s Central Committee to escape justice. His body was taken to the former guerrilla headquarters of Anlong Veng for a three-day Buddhist funeral. Photographs of the event show more than 600 villagers filing past the body to pay their last respects to “the butcher”—a man considered by many to be o­ne of the most violent of the Khmer Rouge commanders.

An estimated two million Cambodians, out of a total population of about 6.9 million, were murdered by the Khmer Rouge between 1975 and 1979. The country lost nearly 21 percent of its people.

By percentage, the Cambodian holocaust is the worst to have occurred anywhere in the world—a death toll that eclipses the Nazi and Rwandan holocausts combined—making the Khmer Rouge the most effective mass murderers in modern history. And still not a single member of the movement has been held to account for their bloody crime.

For outsiders, the photographs of Ta Mok’s funeral defied understanding. The solemn ceremony might as well have been for the life of a popular local dignitary, rather than for o­ne of the most prolific murderers of the 20th century.

So why did so many people mourn the death of this killer? It is this apparent contradiction that runs central to the purpose of an upcoming tribunal of former Khmer Rouge; to clarify the responsibility for the killing and make the process relevant to ordinary Cambodians. But time is running out.

It has been 28 years since the Khmer Rouge holocaust was made known to the world. The quest for justice was sidelined during the Cold War. In the mid-1990s, as part of a strategy to defeat the Khmer Rouge, the Cambodian government granted amnesties to Khmer Rouge leaders if they defected to the government side. Eventually the movement for justice imploded.

Some former Khmer Rouge now hold positions within the army and government. Many are old and frail men in their 70s. After the death of Ta Mok, o­nly o­ne Khmer Rouge remains in prison awaiting trial: Comrade Duch, Pol Pot’s chief executioner.

In October 2004, after years of protracted negotiations, the UN finally ratified an agreement with the Cambodian government to try the surviving leaders of the Khmer Rouge, though o­nly a small number of them are expected to face trial. Last July, just before Ta Mok’s death, the judges for The Extraordinary Chambers of Cambodia were sworn in.

Although the trials are to begin this year, negotiations between the UN and the Cambodian government have been plagued by delays. The latest debacle involved the Cambodian bar association imposing legal fees o­n foreign lawyers, threatening the entire process. After weeks of stalemate, an agreement was finally reached that will allow the tribunal to get underway. But the actual business will not begin until the Cambodian and international judges sign off o­n the court’s rules at the end of the month. o­nce these rules are ratified, prosecutors will file initial cases and the tribunal can begin in earnest. 

But if the past is anything to go by, the delays may not end here. Many, including Human Rights Watch, have accused Prime Minister Hun Sen of interference. They say that there are former Khmer Rouge in government who may have participated in mass killings, and that the delays are an attempt to ensure that no senior Khmer Rouge do make it to trial. With Ta Mok’s death, and after so many years of negotiations, some have openly questioned the purpose of a tribunal. Many of the leaders are elderly and infirm and may not make it to their day in court. So why a trial?

Cambodia is a society plagued by violence. Human rights workers have investigated scores of political murders, but no o­ne has ever been charged. o­ne of the principal purposes of a tribunal is to establish an understanding of the importance of a due process of law to replace this cycle of impunity and revenge, and to begin a new era in Cambodian legal affairs—an essential step in the country’s judicial reform.

It is also important for people to see that leaders are not immune from prosecution. Many believe this lack of accountability is o­ne of the most enduring legacies of Khmer Rouge rule. No o­ne believes in the ability of those in authority to act in a responsible way. And for others, revenge is the o­nly answer. As o­ne peasant woman o­nce told me, “I want them killed for what they did… I don’t want just a trial,” she said. “I want to eat them.”

The tribunal is faced with a population that knows little about—much less understands—the process of justice and what it means. Critics of the tribunal have said that it runs the risk of becoming irrelevant unless it is made more accessible to a wider audience. 

Most people in Cambodia don’t have an understanding of the separation of powers taken for granted in the West: the police, the court, the jury, the judge and executioner. All these roles have been bound in the same center of power, and these structures remain relatively unchanged in Cambodia, as they have been for centuries—including during the Khmer Rouge period.

With the tribunal, a completely alien and complex system of justice is being introduced to a largely uneducated population. And the single biggest challenge for the Extraordinary Chambers is to demonstrate a transparent, fair system of justice whose process is understood.

So how do you make a process in far away Phnom Penh meaningful to people in places like Anlong Veng?

Although there is no shortage of evidence or witnesses, and with the fact that the Khmer Rouge committed serious crimes beyond dispute, the structure of the leadership and how orders for the killing were carried out still has to be established.

All the Khmer Rouge leaders, including Ta Mok, had succeeded in keeping their profiles separate from the killing. This was done by deliberately keeping the people ignorant through secrecy. And it is this secrecy that goes some way to explaining the scenes at Ta Mok’s funeral. As long as they didn’t see him actually kill, they were happy to believe their leader was “clean.”

Ney Sarath, o­ne of Ta Mok’s commanders, said, “I never saw them get killed with my own eyes so I don’t know for sure.” Much of the relationship between the people and their overlords was based o­n an age-old reverence for the established order. Those in power expected to rule absolutely and the people expected to be ruled.

One former Khmer Rouge told me that he believed that o­nly by understanding how Cambodia as a society could produce such a cataclysm would the country be able to move o­n. And that meant understanding the perpetrators as much as acknowledging the sufferings of the people. “That,” he said, “is why a trial is important.”

There is a groundswell of opinion that if something approaching real justice can be achieved, then people will support it even if their understanding of the process is sketchy.  Several Cambodian NGOs are involved in tribunal-related projects and coordinate their efforts in areas such as monitoring, outreach, mental health services and other activities. And more projects are expected. Last year participants were brought together to talk about the tribunal and what it means. This was in Pailin, a former Khmer Rouge stronghold. So the work of creating greater understanding has begun.

Even with the deaths of Ta Mok, Pol Pot and others, the educational process remains important and much can be learned. o­ne investigator saw Ta Mok’s passing as a drawback, but he wasn’t too worried. He regarded it as an opportunity to bring other lesser-known, but no less responsible, Khmer Rouge to account.

The key to the tribunal’s success is not whether to find a group of old men guilty, but to explain how they are guilty. It is also a public acknowledgement of the suffering of those who experienced the brutality of Khmer Rouge rule, and for the UN to show that whenever two million people go missing, it matters.

Many hope the tribunal will educate people, particularly in places like Anlong Veng. As Ney Sarath told me, “We were the o­nes who lost legs and lives.”