Justice for Genocide — Has Cambodia’s Tribunal for the Khmer Rouge Been Successful?
Determining whether or not the tribunal has been effective and what obstacles it may have faced in achieving its objectives
In 1975, the Khmer Rouge of Cambodia obtained power and committed what is considered to be one of the worst genocides in human history. Although the total death toll is difficult to know for sure, it is estimated that the Khmer rouge killed about 1.7 million people—and a greater number still died from starvation and disease. That’s not to mention the torture, imprisonment, persecution of religious and ethnic groups, and forced labour.
An international tribunal (the “Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea”, what I’ll call the “Cambodia Tribunal”) was created in the late 1990s with the goal of hearing the crimes that were committed and enabling a justice process for those responsible for the atrocity. The tribunal had three primary objectives:
- to hold to account those who committed crimes;
- to support the development of an effective domestic system of justice in Cambodia; and
- to help Cambodia process the crimes by contributing to reconciliation by providing a better understanding of what happened.
The tribunal continues today with trying the crimes that occurred in 1975, with convictions occurring as recently as 2018. Ongoing cases continue into 2021.
Has it been effective?
In this article, I aim to determine whether or not the tribunal has been effective and what obstacles it may have faced in achieving its objectives. To answer that question, I review the international legal issues surrounding the Cambodian genocide, including the legal structure of the international tribunal. Ultimately, I argue that, while there have been some positive outcomes of the tribunal, it has so far not been successful in bringing those responsible for the genocide to account for a number of reasons. I further argue that the tribunal has had some success contributing to an improved legal system in Cambodia and has generally been successful in helping the people of Cambodia understand what happened and move towards reconciliation.
The article begins with a background of the genocide, followed by a description of the relevant international legal framework. It then describes how the Cambodian tribunal was formed and its major features. The article then analyzes the legal outcomes for the people of Cambodia and evaluates those outcomes, highlighting some of the strengths and limitations of the international legal framework. It considers some of the reasons that justice has been limited. Finally, the article concludes with some recommendations for future tribunals such that they are more likely to lead to improved international law outcomes.
Background: A brief history of the Khmer Rouge
The Communist Party of Khmer (the CPK — also known as the Khmer Rouge) formed in the 1970s in the context of an authoritarian, right-wing government. It was formed as a resistance to the authoritarian government and was supported by the Vietnamese government at the time. Eventually, the party’s resistance to the government led to a full-blown civil war in 1975. After the Khmer Rouge successfully defeated the ruling party, they took control of the country that year and implemented a program of radical economic and social reforms aimed at bringing Cambodia towards their vision of an agricultural country that did not rely on other countries.
The reforms were brutal. They evicted people from the cities and forced them into the country to farm the land. This took the form of forced labour camps where there was little food and inadequate shelter. They restricted trade and isolated themselves from foreign governments. They closed hospitals and schools, raided private businesses and banks. Socially, they enforced a traditional family structure with arranged marriages and punished sexual relations outside of marriage with death. The regime was suspicious of educated individuals, and these were often considered enemies of the state, along with people with any connection to the previous government. Enemies of the state were often tortured or killed.
The regime also tried to separate Cambodia from its imperial past, and artists, writers, and musicians of the country were persecuted, along with those that spoke other languages. The Khmer Rouge also destroyed cultural and historical artifacts to support its cultural shift. They persecuted ethnic minorities, including the Chinese, Vietnamese, and Thai people in the country, as well as religious minorities, including Christians, Muslims, and Buddhists. The Khmer Rouge even killed members of its own party if they were believed to dissent from the leaders.
The Khmer Rouge ran over 150 labour camps and prisons at which individuals were regularly tortured and killed; at one of the most famous — the Tuol Sleng — only twelve survived from the 20,000 prisoners that were believed to have been held there. Over 20,000 mass graves have been found in Cambodia. In addition to the direct killings, a larger number of people died from the widespread disease and famine that resulted from the government's radical social policies. Estimates of the total casualties from the period vary, but generally range from between 1.7 million and 3 million individuals that perished as a result of the actions of the Khmer Rouge government from 1975 to 1979.
Legal framework
The actions of the Khmer Rouge clearly fit the international legal definition for War Crimes, which includes, “hostile armed acts committed by persons who are not members of recognized armed forces”. There were some early attempts to hold leaders of the Khmer Rouge responsible for the atrocities following the defeat of their government. However, the trials that occurred in Cambodia were not recognized internationally because they failed to follow internationally recognized standards for just and fair trials. Further, because many of the leaders had fled to the jungle, even though they were found guilty, they were not able to be punished. Legitimate efforts to hold the Khmer Rouge responsible only began to occur in the late 1990s when the government asked the United Nations to help establish a tribunal to hear allegations of war crimes.
Establishing a tribunal
The current International Criminal Court (ICC) would normally be the venue at which these crimes would be tried. However, since these crimes occurred from 1975 to 1979, and the ICC was only established in 1998, it did not have jurisdiction. Instead, the government of Cambodia and the United Nations worked together to establish a tribunal that would have jurisdiction to try the Khmer Rouge crimes.
The United Nations and the government of Cambodia engaged in a series of negotiations to determine the structure and the scope of the tribunal. There were a number of factors that were at play in the negotiations. The United Nations sought to ensure that the tribunal was made up of international legal experts, lawyers, and judges so that they could ensure that it met internationally recognized standards of justice—including that it was independent from interference from the Cambodian government. However, lessons learned from previous international tribunals, such as those set up in Rwanda, had made it clear that fully international tribunals could be slow and costly. In addition, these were not necessarily seen by locals as legitimate and may not have been as accessible to victims of the crimes, and were therefore limited in the extent to which they could support reconciliation efforts. Therefore, the UN also wanted this tribunal to have significant representation from local lawyers and judges. The Cambodian government, seeking to ensure that international governments did not use the tribunal to interfere in its domestic politics, also sought to have significant domestic representation in the tribunal.
Tribunal structure
In 2003, the government of Cambodia and the United Nations agreed to the structure and scope of the tribunal. The goal of the tribunal was to “bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia”. It was a national tribunal but created to function consistently with international legal standards. It was established to be independent from both the Cambodian government and from the UN. The result was a hybrid of international and Cambodian prosecutors and judges. Cambodian judges make up the majority of both the main tribunal and the appellate body.
The scope of the tribunal is to try crimes against laws that were in place at the time of the crimes from 1975 to 1979. This includes the 1956 Cambodian penal code as well as a handful of international agreements that Cambodia was a party to at the time, including the Geneva Conventions of 12 August 1949, the Convention on the Prevention and Punishment of the Crime of Genocide 1948, and the Hague Convention for Protection of Cultural Property in the Event of Armed Conflict 1954. Together, these form a legal framework that prohibits homicide, torture, religious persecution, inhumane treatment, wilful killing, genocide, and destruction of cultural property.
Analysis and evaluation-has the Tribunal been effective at administering justice?
Several individuals have been tried and found guilty by the Cambodia Tribunal. In 2010, Kang Kek Lew was the first person to be found guilty. He was the director of the Tuol Sleng prison and labour camp. He was found to be guilty of committing war crimes and crimes against humanity. In 2014, Nuon Chea, the former Deputy Secretary, and Kheiu Samphan, the former head of state, were found guilty of crimes against humanity. Later, in 2018, they were further found guilty of having committed genocide.
Strengths of the Tribunal
Accountability. One of the primary strengths of the tribunal is that it has brought some members of the Khmer Rouge to trial and charged them. All three charged persons received life sentences. More symbolically, the guilty verdicts for these members confirmed that the crimes that were committed were severe, and really were genocide. Thus the tribunal succeeded in holding perpetrators to at least a small degree of accountability.
Development of justice system. Between 1975 and 1979, the Khmer Rouge targeted several groups to eliminate from Cambodia, and one of these groups was individuals who were educated. A lasting consequence of that action is a continuing lack of educated individuals in a number of fields, including legal professionals — skilled lawyers and judges are lacking in Cambodia. The tribunal has acted as a kind of training system through which young prosecutors and judges can practice alongside international lawyers and judges and gain skills.
Moreover, the presence of the tribunal has arguably provided a model for what a successful system of justice that meets international standards for fair trials can look like. The mere presence of this tribunal has challenged the culture of impunity that has been present in Cambodia for decades. Indeed, that there is a way through which high-ranking government officials can be brought to justice is itself a relatively unique feature in Cambodia, and many have argued that in this way, the tribunal has increased the extent to which Cambodians have faith in their justice system. As the director of a museum dedicated to remembering the atrocity, Youk Chang, has said, “the tribunal is all about better justice. For the first time in Cambodian history, there’s a culture of debate here. It has reduced violence. It creates democracy. It makes the farmer the equal of the prime minister.” A main strength of the tribunal, then, has been its support for rule of law in the country.
Promote public understanding. The crimes that occurred in Cambodia from 1975 to 1979 have left a deep scar on the country. Some argue that part of the healing process will necessarily involve understanding what happened; indeed, some scholars suggest that it is widely accepted that peace requires an understanding of past violence and attempts to address it. By allowing the uncovering of truth, the tribunal contributes to the public understanding that is required and also that will support reconciliation.
Limitations
Accountability. While some members of the Khmer Rouge have been tried and found guilty, many have not. For example, Pol Pot, the Prime Minister during the Khmer Rouge, who is widely seen as the regime's leader, died in 1998 before the tribunal was established. Thousands of others who played important roles in the genocide, who were considered important party members, and about whom there are well-documented cases, were never tried. There are many that are still alive that were involved that live freely in Cambodia. Of those involved in the atrocities in Cambodia, the vast majority have not been held accountable.
Independence. Many argue that the tribunal has failed at achieving independence from the Cambodian government. They argue that the government, through pressure on the Cambodian prosecutors and judges, has been able to exert pressure on both who is tried and on the outcomes of some of those trials.
In some instances, there appears to have been active opposition on the part of the government to some cases going to trial, especially in cases where it does not suit the political interests of the government. For example, cases 003 and 004 were closed without, in the opinion of several international commentators, what could be considered an impartial investigation and without making use of key witnesses to consider the cases. Allegedly, the reason for dropping the case is pressure from the government, which, at the time, included former members of the Khmer Rouge. Hun Sen, a former member of the Khmer Rouge and Prime Minister of Cambodia when cases 003 and 004 were closed, had made statements in public about being opposed to the cases, including that the cases “would not be allowed.” Indeed, several international judges that worked for the tribunal resigned as a result of the government interfering with the cases.
Delay. The first conviction that occurred for the tribunal was in 2010, over 30 years after the crimes occurred. Not only does that mean that justice is delayed, but the delay itself hinders how well cases can be built. Time makes it difficult to establish evidence in the cases. Records or lost and the memories of witnesses can become blurry. Some of the witnesses pass away. And testimony of events that happened 30 years ago can be called into question. The long delay in justice is an important limitation in the ability of the tribunal to accomplish its goals.
International political will. One of the reasons for the delay in the establishment of a tribunal and the ability to hold the Khmer Rouge to account seems to have been international political will. In the 1980s and the 1990s, the Cold War occurred between the Soviet Union and the United States. During this time, many countries aligned themselves with one of the major powers. Cambodia, after the fall of the Khmer Rouge, was aligned with the Soviet Union. The remnants of the Khmer Rouge after their fall, continued to exist in the Cambodian jungles. Both China and the United States supported them materially as a way to undermine the Soviet-aligned government and ultimately the Soviet Union.
Continued diplomatic support for the Khmer Rouge by the US throughout the 1980s in the 1990s was one major reason the international community did not try harder to hold them responsible for the genocide. It was in 1994 that US foreign policy changed and the US Congress took steps to hold the government to account. Thus, the use of Cambodia and the Khmer Rouge politically by other countries during the Cold War was one of the major reasons that justice was not served more quickly. International political agendas were one important limitation in the ability for Cambodians to obtain justice.
Conclusions
Accountability
There are currently three individuals who have been held accountable for their role in the Cambodian genocide from 1975 to 1979. From these cases, there does appear to be some sense among Cambodians that there has been some justice. But, while this is positive, only a fraction of the individuals that were responsible have been held accountable. Many of them continue to live freely in Cambodia having faced no recourse for their actions. Overall, it seems like the tribunal has largely been unsuccessful in holding the Khmer Rouge to account.
Development of the justice system
Cambodia seems to have benefited from the presence of the tribunal. It appears to have played an important role in building the capacity of legal professionals and has provided a good example for what justice can look like in a country that has largely not had a well-functioning justice system. Further, the tribunal has challenged, at least to some extent, the culture of impunity that exists within Cambodia. While there have been some questions about whether the Tribunal has been truly independent, it has almost certainly been more transparent and independent than much of the rest of the justice system. For these reasons, the tribunal does seem to have had some success in contributing to the development of Cambodia’s justice system.
Reconciliation
Uncovering the truth about what happened is an important part of healing. The tribunal has provided the public with an understanding of what happened by creating a forum through which people can begin to understand and learn. It has further been a way to recognize the severity of the crimes on an international stage. In this way, it does seem to have supported the reconciliation process. Its contribution to Cambodia’s reconciliation country may be one of the most important contributions of the Tribunal.
What can we learn?
The Cambodia Tribunal has been somewhat successful, but its success has also been limited. Lessons can be taken from the Cambodian case to inform future cases where a tribunal must be created.
First, such a tribunal should be created without delay, as delay can hinder the ability of prosecutors to build cases against perpetrators of major crimes.
Second, one goal should be to mobilize political will. In the case of Cambodia, the political agendas of countries like the US were a major reason for the delay of justice. Mobilizing political will early may help ensure that justice is sought early.
Third, tribunals should be structured to be completely independent of the domestic government. While it was important to have a mixed tribunal in the case of Cambodia — with both international members and domestic members — the fact that the domestic members were a majority may have allowed the Cambodian government to interfere on some cases and may have been an obstacle to true independence of the tribunal. Future tribunals should seek to have a hybrid model, but should be structured to have a majority of international members.
Taking these recommendations will help ensure future tribunals will have the best chance at being successful.
