Cambodia, war crimes and the issue of retribution

Comrade Duch on trial

April 14, 2011
Dr. Jason Abbott
http://profjabbott.blogspot.com

On March 30th this year in Phnom Penh, Cambodia, a frail looking 68-year old former math teacher, Kang Kek Lew, had his appeal against a 35-year sentence for crimes against humanity, murder and torture rejected by the Extraordinary Chambers in the Courts of Cambodia. The man in question, better known by his nom de guerre Comrade Duch, ran the infamous S-21 prison camp between 1975 and 1979 during which time an estimated 15-20,000 people were tortured and killed.

Like Laurent Gbagbo of The Ivory Coast, who was captured by French and UN forces today (April 11), one of the most striking things about such figures is how ordinary they look once they no longer exercise the authority they had. This notwithstanding, Gbagbo’s arrest and Duch’s appeal both raise the difficult issue of how to deal with former leaders accused of committing atrocities against their own citizens. In the case of Gbagbo the prosecutor for the International Criminal Court, Luis Moren-Ocampo, has already been in negotiations with African states about a referral of recent events to the ICC. In the case of Duch, he remains the only person so far convicted for the horrific events known as the Killing Fields.

The Killing Fields refers to the period between 17 April 1975 and 6 January 1979 when Cambodia was ruled by the Communist Party of Kampuchea, better known by their moniker the Khmer Rouge. Led by Pol Pot the Khmer Rouge instigated a radical program of cultural, social, political and economic reform largely modeled on China’s failed Great Leap Forward (1958-61). Glorifying the ‘heroic role’ of the peasant (the ‘old people’) the Khmer Rouge aimed to create a classless society by depopulating the country’s cities and forcing the urban population (the ‘New’ People) into agricultural communes. Most dramatic was the forced emptying of the capital Phnom Penh. Home to approximately 2.5 million at the time of the revolution, the city, including its hospitals, was forcibly evacuated. History and society would begin again from a Year Zero in which ‘Democratic Kampuchea’ would forge its own glorious revolution. However like previous attempts at total revolution the revolutionaries soon became mass murderers.

In the three years and nine months the Khmer Rouge ruled Cambodia approximately 1.7 million died, 21 per cent of the country’s population. Of these it is estimated that half were executed while the rest died of starvation or illness. What differentiates the Cambodian genocide from its counterparts is that the killings were instigated by the country’s own government against its own population. For this reason the term autogenocide was coined in order to distinguish the horrific events from episodes where a particular ethnic or religious group was the target of systematic extermination. Justice and retribution for these exterminations however, would wait nearly three decades.

Between 1979 and1989 the vagaries of the Cold War intervened. Defeated by a Vietnamese army that ostensibly claimed to be liberating the Cambodians from their oppressor, the Khmer Rouge were shamefully supported as a guerilla force by Western governments to ‘balance’ Soviet influence in Indochina. Peace talks were finally concluded in 1991, which brought an end the civil war and transferred authority to a United Nations Transitional Authority. Two years later power was transferred to an elected government and it was this government that four years later in 1997 called upon the United Nations to assist the country in creating a judicial body and process to try the leaders of the Khmer Rouge.

Despite this it would take another eleven years before hearings at the ECCC would begin. The intervening decade was beset with fractious squabbles between the government of Cambodia and the UN over the thorny issue of sovereignty. Initially the United Nations proposed the creation of an international tribunal modeled after the International Tribunals for Yugoslavia and Rwanda. The Cambodian government rejected such proposals seeking instead to insert national legal institutions into any such organization, while in 2001 the UN pulled out of negotiations because it concluded that the conditions did not exist for a fair and independent trial. Eventually in 2003 the two sides agreed to the creation of a hybrid body comprising both national and international judges. However, further delays resulted due to the alleged inability of the Cambodian government to finance the tribunal. Critics have argued that the real reason for the obstruction and delay was the fact that the government of Cambodia under prime Minister Hun Sen included several former Khmer Rouge defectors.

The ECCC presents an interesting case study of the difficulties in dealing with atrocities conducted and committed by officials of a former, usually authoritarian or military, regime. Political transitions rarely result in a complete replacement of one ruling elite by another. Instead they are often messy and muddy compromises in which the issue of impunity from justice is often dealt with behind-the-scenes. Nevertheless, however such compromises are made, and why, society as a whole often clamors for punishment and retribution. The argument is made that punishment is both an appropriate response to moral atrocity, and necessary to deter future actions. In addition, others hold that it is a necessary condition to ensure long-term peace, national unity and democratic consolidation.

Whether you accept these premises or not recent history is replete with responses that “have ranged from historical amnesia to intermediary strategies of amnesty and truth telling to limited purges (lustration) and trials” (Amstutz, 2004). Ultimately the scope, successes, or failures of such attempts will always be dependent on the specific constellation of power in each relevant country and the wider geopolitical framework. What might be possible in Yugoslavia, may not be possible in The Ivory Coast, Libya, Indonesia or Cambodia. In the case of Cambodia however complete justice will never be fully attainable since the architect of the country’s horrors, Pol Pot, died of heart failure on April 15th 1998. He unlike Kang Kek Lew will never be held to account.