November 16, 2018, is a historical date – not only for Cambodia but also for all humanity. It gives hope that all perpetrators of mass crimes, regardless of who they are, will be punished. A small step has been taken in Phnom Penh in this long march towards international criminal justice. Khieu Samphan, former chief of state of the regime of Pol Pot and Nuon Chea, number two of this regime have just been sentenced to life imprisonment for crimes against humanity, violating the Geneva Conventions and carrying out acts of genocide.
Nonetheless, the judgment goes beyond trying the two most senior surviving leaders of this barbaric regime. The crux of the November 16 judgment considers that the Pol Pot regime was, in the legal sense of the term, a “joint criminal enterprise” involving directly the senior leaders named as perpetrators of crimes committed: Pol Pot, Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith, Son Sen, Vorn Vet, Ta Mok, Ke Pauk, Koy Thuon, Chou Chet, Ruos Nhim and Sao Phim. The court therefore proceeded to pass down a sort of posthumous conviction of the leaders who escaped its jurisdiction by reason of their death before or during the proceedings initiated in 2007.
Western observers have often criticised the delayed setup of the Extraordinary Chambers in the Cambodian Courts (ECCC) – which is a hybrid court formulated by specialists in international criminal law bringing together Cambodian judges, prosecutors and lawyers, and foreign legal experts chosen on UN lists. And these same observers used to blame the Cambodian government for the delay.
The ECCC was set up 14 years ago, but what these Western observers fail to acknowledge is that prior to that they decided to punish the Cambodian people for being released from a genocidal regime by the Vietnamese army flanked by Cambodian insurgents. They denied any condemnation of the Pol Pot regime and protected its key leaders – to the extent of allowing the Khmer Rouge to represent Democratic Kampuchea at the United Nations!
In the 1991 Paris Peace Agreements, an amnesty was offered to the Khmer Rouge leaders and they were “invited” to participate in the UN-sponsored elections. There was no mention of a trial whatsoever.
The refusal of Pol Pot and the Khmer Rouge leadership to implement these Agreements and the powerlessness of the UN Security Council to enforce them resulted in the Pol Pot regime controlling one-third of national territory when the UN mission departed Cambodia in 1993. It was the Cambodian authorities that had to deal with a situation that was in no way promised by the Paris Agreements.
The war that the international community and UN was mandated to end lasted another five years, and the real architect of pacification at the end of 1998 was Prime Minister Hun Sen. Where the Vietnamese, the UN and King Norodom Sihanouk had failed, Prime Minister Hun Sen succeeded. The Cambodian government concluded an agreement limiting prosecution to just the leaders of the Pol Pot regime who had planned and ordered mass crimes and allowed ordinary Khmer Rouge operatives, soldiers and cadres to demobilize and reintegrate into Cambodian society.
Most of the leaders listed in the November 16 judgment have died.
When the ECCC started their work, only Duch, former director of the S21 torture center, Khieu Samphan, Nuon Chea, Ieng Sary, former foreign minister and his wife Ieng Thirith, former minister of social affairs, remained. The latter two died during the trials. If the survivors of a regime called Democratic Kampuchea had to wait 39 years for justice, this is in no way the fault of Cambodians.
The same Western observers and human rights activists who derided the Cambodian government for its delay in giving approval to set up the ECCC, also castigated the prosecutors for failing to bring to trial other members of the Khmer Rouge, some of whom were notoriously involved in mass crimes. But this ignores the peace agreement made in 1998 to finally end the fighting with the Khmer Rouge remnants. This impunity was the price to pay for peace – a peace that had been waiting for 28 years, since the fatal day of March 18, 1970 when a coup inspired by the US plunged the country into war. Having spoken to former Khmer Rouge officers, I can firmly put forward that without such an agreement, pacification would have been impossible.
It is too easy, from the comfort of Western salons, to demand a pure and perfect justice of which neither the countries of Europe nor the US have set the example, particularly with regard to certain Nazis, collaborators of Nazis or those who provided funds to the Nazis. To date, no country in the world has provided the example of an absolute rejection of impunity for mass crimes perpetrated on its territory.
So, in what capacity are demands made on Cambodia when those making the demands are incapable of doing so themselves? The pacification deal made in 1998 would be put at risk if caution is thrown out of the window and a witch-hunt launched to prosecute others outside Pol Pot’s murderous clique.
ECCC, at the forefront of international criminal justice
The Cambodian law creating the ECCC was a result of seven years of negotiations with the UN. It has made some significant advances in international criminal law.
First and foremost, there is a presence of civil parties. The ECCC is the first international court to grant victims – not to be confused with witnesses – the right to participate effectively in criminal proceedings. Until then, from the Nuremberg and Tokyo military tribunals to the ad hoc tribunals for the former Yugoslavia and Rwanda, the victims, through their lawyers, were not involved in proceedings.
A total of 4,222 victims were admitted as “civil parties” by the ECCC. The procedures adopted made it possible to deal with the problem of a large number of victims. This was indeed a breakthrough because since 1945, the enormous difficulty of allowing genocide survivors to participate in criminal proceedings against perpetrators of crimes against humanity precluded them from having their voices heard in court. In this regard, the ECCC has played a pioneering role.
In the judgment delivered on November 16, a legal concept is emphasised which is sometimes disputed by specialists in international criminal law. It is the reference to “joint criminal enterprise”. In Nuremberg, the term “conspiracy” was used; later, and particularly at the Arusha court in Tanzania where crimes committed in Rwanda were tried, the term “concerted plan” was put forward because it was characteristic of all genocidal acts.
This mass crime can only be the result of both prior planning and collective action. The judges of the ECCC considered that the project common to the leaders of Democratic Kampuchea was in itself of a criminal nature. One is well, in this case, with the concept of joint criminal enterprise. In this respect, the ECCC’s judgment of November 16 consolidates this concept of international criminal law.
However, it must be understood that justice is not revenge and a court meeting the standards of the UN excludes the death penalty. The ECCC public relations unit, using video, went to all the provinces to provide this explanation and because of this, there had been massive public turnouts at every court hearing.
Due credit has to be given to the Cambodian government which had to fight hard for the trials to be held in Cambodia when it was not the original United Nations proposal. It should be recalled that this was not possible for the former Yugoslavia or for Rwanda. Quite clearly, it shows that this lack of involvement of the concerned population, as we see today, affects the process of national reconciliation.
The historical judgment on November 16 also warrants the special mention of three people. First is Prime Minister Hun Sen who wanted this court and also wanted it to be held in Cambodia, while preserving the 1998 pacification and national reconciliation. His government continued to increase its contribution to the ECCC with the help of international donors. The second is Deputy Prime Minister Sok An, who passed away last year. He was the Cambodia’s tireless negotiator with the United Nations, and with donors in his capacity as chairman of the “task force” to steer the smooth running of the ECCC. The third is Judge Nil Nonn, President of the Trial Chamber, whose calm and firm direction of the proceedings during a total of 547 days of hearings earned the admiration of his colleagues and legal professionals.
To Westerners so often indifferent or unjust when it comes to the Cambodian tragedy, I would like to remind that in 1979, the UN Commission on Human Rights committed a true denial of justice on the orders of Western governments by refusing to adopt the report of the Tunisian diplomat Abdelwahab Bouhdiba who described the events of Cambodia as “without precedent in our century, except for the horror of Nazism”.
The ECCC, on November 16, just proved how wrong the UN Commission on Human Rights was in 1979.
Raoul M Jennar is a political scientist based in Cambodia. He is the author of ‘Khieu Samphan et les Khmers Rouges. Réponse à Maître Vergès’. Préface de Robert Badinter,’ Paris, Editions Demopolis, 2011.