The trial of a few surviving leaders of the notorious Khmer Rouge regime, which ruled Cambodia in the 1970s, is finally underway. But the court is a strange one, the outcome pre-determined. Lawyer *Brooks Duncan* dares to raise some of the questions the court will try to ignore.
The ‘second edition’ of An Introduction to the Khmer Rouge Trials, a pamphlet in both English and Khmer, recently landed on my desk in Cambodia.1 The foreign-financed booklet, promoted by the Cambodian Government and described as ‘educational’, says that the trials will set the historical record ‘straight’.
The trials are indeed seeking to rewrite history. But they are more likely to criminalize ideas and political ideologies than to outlaw the abuse of power. The countries funding the trials – including the US, Britain, Japan, Canada and India – have already determined what the history lesson is to be.
The trials seek to criminalize five aged Khmer Rouge political leaders, but none of their followers – and no similar killings by others. The killings by the Government of Prime Minister Hun Sen – a former Khmer Rouge soldier who has held virtually dictatorial powers since 1993, but is backed by the international community for his support of global trade – will be ignored. Hun Sen is believed to have killed dozens of opposition party demonstrators in a massacre in 1997. He regularly makes threats against other politicians and dismisses documented abuse of rights – offered annually by the UN – as well as charges of corruption. More than half of the national budget still comes from the same foreign donors who are supporting the trials.
The slaughter of as many as half a million people in bombings ordered by the Nixon Administration in the early 1970s will similarly go unpunished. Also erased is the role of the Chinese and Vietnamese in militarizing the conflict and looting resources. The role of the colonial French hasn’t a hope of being mentioned; their reign is referred to in the country’s history books as an era of progress.
The trials focus only on a specific period of time and specific actions, in what is described as reflecting ‘international standards of justice’ and the continuing government policy of ‘national reconciliation’. The focus on punishment – something that many of Cambodia’s Buddhists actually do not want – is said to be necessary to promote the ‘reconstruction’ of Cambodia.
There is little doubt that the defendants were engaged in a brutal civil war in which they ordered murder and destruction on a massive scale between 1975 and 1980, and that they sought to remake the country and start it again at what they called ‘Year Zero’. There is little doubt that they opposed urbanization and sought to turn the country back to an agrarian society.
Nevertheless, it is a virtual certainty that most of the real historical questions that are important to Cambodia’s understanding of its past will be suppressed. The historical record, for example, is already being set to present the most extreme interpretation: ‘over three million’ deaths under the Khmer Rouge, according to the booklet – more than the 0.75 to 1.8 million verified by most scholars, and more than the highest estimate of all, which is 3 million.2
Despite this, the trial will offer different views – if defence attorneys do their job – and open up many inconvenient truths, though they will probably not be widely reported. In order to prove its case, the prosecution will have to demonstrate a motive for the killings. Were the defendants’ beliefs and rationale reasonable? If so, is anything being done to change the circumstances that led to the choice of criminal acts, or is there potential for the same kinds of killings to occur in future? Further, are the trials just of criminal acts, or are they really attempts to outlaw beliefs, the new ‘thought crimes’ of globalism?
Below are some of the uncomfortable questions about Cambodia’s past and present that need to be answered and could be raised in the trial.
Criminalizing rural development: deaths from disease, malnutrition and overwork.
There seems to be agreement that the majority of the deaths between 1975 and 1979 occurred from tropical diseases and famine related to a policy choice to send Cambodians to work in rural areas. If these deaths are being criminalized, it is because the leaders didn’t make some other policy choice that would have been ‘legal’. But is forced radical de-urbanization a crime against humanity, in a world where urbanization is leading us to an environmental crisis that could result in millions of deaths from similar causes and where forced urbanization through government land-grabs has yet to be put on trial? Is rural culture – or an attempt to recreate Angkorian culture, the agricultural empire that is considered the high point of Khmer civilization and what the Khmer Rouge may have considered a model – to be criminalized?
Most scholars think the Khmer Rouge leaders legitimately believed they were returning the country to its rural Angkorian roots, and that they were seeking to do this in some kind of egalitarian way. The motive wasn’t individual enrichment for élites. The Khmer Rouge leaders weren’t impoverishing peasants and buying expensive toys for themselves – as current and previous leaders, who also killed their opponents, have done. That activity is easy to criminalize – but none of those leaders is being put on trial.
Criminalizing the Khmer Rouge for opposing the hierarchy and passivity created by the French.
Much of the trial will probably focus on the ability of the Khmer Rouge leaders to order bands of angry youth to torture and kill tens of thousands of people. The defendants will say that Cambodia was a society boiling with violent youth whom no-one else could control. They will say that they were seeking to fight injustice, then to establish order and control violence overall, and that most of the deaths that occurred under their reign and are attributed to them happened outside of their control. Or did the Khmer Rouge just use the killing machine that the French and Americans created, but with greater damage and the ‘wrong’ results?
The defendants will certainly point to French schools and prisons, as well as international policies like the American bombing and support for the Lon Nol military dictatorship from 1970 to 1975. That dictatorship promoted torture and mass murder for longer than the Khmer Rouge – the defendants and their friends were among the victims.
Children aren’t born to torture and murder. But in a broken society, where people were filled with suppressed hatred, their only expression of individuality and independence was through violence. In a horrible irony, the prosecutors will make their case by saying that their preferred version of Khmer culture – the one foreigners and this trial are now trying to restore – is one of blind obedience and fear of authority, and that the defendants opposed it.
Khmer in general don’t question political authority. Apparently, this is what Buddhism, colonial schools and the current school system promote as their version of ‘Khmer culture’. Violence may be the only independent act that is really permitted within Khmer culture. If this is how the society is structured, the only way to change it would be through violence. This is what France and the US did when they sought to change the country to their own liking. So, isn’t this trial criminalizing those members of the Khmer Rouge leadership who did question the system and tried to change it; and not criminalizing all those who just blindly ‘followed orders’? If so, isn’t that reversing the very principles of Nuremberg after the Second World War?
Moreover, if the principles of democracy and justice are to be applied internationally, mustn’t they give all parties equal access to international processes, to hold all abuses of power accountable, rather than selectively to prosecute and enforce the laws discriminatorily against political groups whose ideologies are in the minority, while those who remain in power commit similar crimes?
Criminalizing the Khmer Rouge for opposing a religion that made them easy to colonize.
The prosecution will say that the Khmer Rouge destroyed Khmer religion and culture by attacking Buddhism and monks. That will be easy to prove: the murders are clear and punishable crimes.
it is a virtual certainty that most of the real historical questions that are important to Cambodia’s understanding of its past will be suppressed
But the Khmer Rouge leaders on trial could raise troubling questions about whether Buddhism in Cambodia is really Khmer. They will likely note that Buddhism was an Indian religion that arrived well after other religions. They will ask whether this foreign religion, and the monks promoting it, were protecting Khmer culture or making the Khmer more passive, obedient and vulnerable. They will say that they were cleansing the country of an outside religion that symbolized and presided over 600 years of the country’s decline, including the loss of most of its land to Thailand and Vietnam. They will ask about Buddhism’s effectiveness in promoting equality and protecting nature, and point to pagodas in Phnom Penh that have become concrete enclaves filled with the ostentatious funerary towers of the rich. They will ask: how does all the money spent on idol worship and chanting really confront the injustices in society? They will note that Khmer Buddhists do little themselves to promote or protect the country’s history and monuments. They will ask: how does Buddhism promote the development of a strong Khmer society, able to resist military powers both within the region and outside it?
The question for the trial is whether the criminalization of attacks on Buddhism as a religion are designed to protect the Khmer, or are designed by foreign prosecutors – and the Khmer élite aligned with them – to criminalize attempts at independence and reform.
Criminalizing the Khmer Rouge for opposing the colonial administrators and fearing Vietnamese expansion.
It won’t be hard to prove that the Khmer Rouge leaders targeted and killed Vietnamese – in much the same way as General Lon Nol before them. The Khmer Rouge declared that they accepted ‘no excuses’ for the occupation of lower Cambodia. It had belonged to the Khmer for centuries. Both France and the US were happy to give it to the Vietnamese, though it amounted to almost a third of the country. The Khmer were also angry about the historical role of the Vietnamese in Cambodia under the French, who brought them into the administration because they were seen as more adaptable to a colonial hierarchy.
Certainly, the killings of Vietnamese in Cambodia cannot be justified. Yet Khmer Rouge leaders will say that they were protecting the country against hordes of Vietnamese – a population once the same as the Khmer and now almost 10 times the size and still growing – invading their lands. The international community shows no interest in protecting the disappearing Khmer culture in Vietnam today, so it would be easy for the Khmer Rouge to say that they could have expected no help then.
Today, the ever-expanding Vietnamese population will likely go to the same place it went throughout most of the last century with French, then American, support – into the lands of the Khmer and Lao. Vietnamese expansion continued into Khmer lands after the near extermination of the Cham in the 17th century – an empire once the size of Vietnam – who have been almost entirely driven from Vietnam and who now number less than 400,000. This policy of imperialist expansion – tien Nam – has never been rescinded by the Vietnamese. It will be interesting to see how the trials try to make Khmer fear of Vietnamese expansionism into a crime.
Criminalizing the Khmer Rouge for their opposition to Cham Muslims, but doing nothing to protect them or restore their land and independence.
The Cham were never Muslims until they came to Cambodia, united with the Malayans, and twice took over the government. But that was long ago, and no-one has ever suggested that the Cham in Cambodia today are anything other than loyal citizens. It won’t be hard to prove that the Khmer Rouge targeted Cham Muslim communities, but had nothing to fear from them. It would, of course, be as ridiculous to think that the Khmer Rouge feared the Cham as it would be for Western countries to fear Muslims – and to suggest that pre-emptive strikes were necessary for protection.
On the other hand, if leaders of major Western countries use this defence, why shouldn’t the Khmer Rouge? It will be interesting to see if the prosecutors make a case for genocide to protect a Muslim population. So far there are no calls to re-establish a Cham homeland that reconnects the people with their lost territory in what is a third or more of contemporary Vietnam, or to establish real protections for the Cham. Most support for the Cham has come from Muslim countries like Saudi Arabia, not from the countries paying for the trials.
Criminalizing the Khmer Rouge for their opposition to urbanization and neo-colonial trade policies.
Why did Khmer Rouge leaders hate Phnom Penh and have such a mistrust of foreigners? Foreign assassination plots against Prince-King Sihanouk – by the US and Vietnamese in the 1950s – can easily be described as a continuation of attacks by neighbouring and foreign empires that had been waged for more than 500 years against Khmer nationalism. French colonial authorities had promoted non-Khmer in Phnom Penh to work for them, resulting in the rise of wealthy urban élites who exploited the countryside. So were the fears of the Khmer Rouge really unjustifiable? They saw the cities as promoting the excesses of the rich, destroying nature and human dignity, exploiting the poor and promoting squalor, under intense foreign pressure, while doing little to promote anything Khmer. Is it their fear of the kind of place that many observers say Phnom Penh has become today that is being criminalized?
Criminalizing the Khmer Rouge for taking an independent view of Khmer culture.
The defendants are ethnically Cambodian or mixed. In order to make a case for Khmer Rouge ‘genocide’ against the ‘Khmer’ people or culture under genocide law, the prosecution will have to define what ‘Khmer’ actually is. That is something they will almost certainly try to avoid, because it is the very thing the foreign community seems intent on denying. Did the Khmer Rouge leaders try to destroy ‘Khmer’ culture, or were they reaffirming it? Who today is trying to define and defend ‘Khmer culture’? The trial materials don’t even mention it.
Criminalizing the Khmer Rouge for behaviour that may need treatment: the defence of not guilty by reason of insanity.
‘Sane’ countries allow an insanity defence when they deal with psychopathic behaviour. Were the Khmer Rouge leaders acting rationally in their policies but insanely in their methods? If so, what made them insane? One of the five defendants, Kang Kek Iew – who ran the Tuol Sleng torture and extermination prison site – was himself tortured by a Cambodian government whose policies were not much different from those of the leadership today. Mass consumption of luxury goods by urban élites, smoking and alcoholism rates are still high; violent and gang behaviours are on the rise among the next generation. How much of the $60 million for the trials is going toward psychological services that can create effective strategies for change? How much is building a real rule of law and true democracy, with the opportunity to discuss alternatives for the country’s future – other than the one the foreign community has imposed again, as in the 1950s and 1960s?
The political agenda, like the trials, has been pre-determined by those who are paying for it. Is there really less abuse of power today – or is it only of a different kind, and one that the international community doesn’t criminalize?
- It is on the UN’s website for the trial at: www.eccc.gov.kh/english/publications.book.aspx
- Craig Etcheson, ‘Did the Khmer Rouge Really Kill Three Million Cambodians?’ Phnom Penh Post, 30 April 2000.
Styled ‘The Extraordinary Chambers in the Courts of Cambodia’, the trials are being held in a strange hybrid court. Critics say the process is intended to satisfy the interests of Hun Sen and the ‘international community’ rather than the demands of justice.
Five of the surviving members of the Khmer Rouge leadership are charged: Nuon Chea, 81 (‘Brother Number 2’, pictured above); Ieng Sary, 82 (Deputy Prime Minister, brother-in-law of Pol Pot, ‘Brother Number 3’); Khieu Samphan, 76; Ieng Thirth, 76 (sister-in-law of Pol Pot, wife of Ieng Sary); Kang Kek Iew/ Kaing Guek Eav (‘Duch’), 65.
Three died before the trial began: Pol Pot (‘Brother Number 1’) in 1998; Khieu Ponnary (first wife of Pol Pot) in 2003; Ta Mok (‘Brother Number 4’) in 1996.
Three of the trial judges are Cambodian, one is from France and one from New Zealand/Aotearoa. The prosecuting lawyers are from Canada and France; the defence lawyers from the UK, the Netherlands and France, together with other appointees.
All roads in Cambodian history lead to Angkor Wat (pictured). Completed around 1150 and devoted to the Hindu god Vishnu, it remains the largest religious building the world has ever known. Angkor was abandoned as the country’s capital in 1432 under pressure from the Thais.
By the 18th century the country had become a pawn in the games of its two more powerful neighbours, Thailand and Vietnam. The squabbling was resolved by the intervention of France, which had imperialist ambitions for the whole of Indochina. The French hold on Cambodia was weakened by Japan during the Second World War. Japan’s defeat by the Allies meant that Cambodia briefly gained independence.
When the French tried to resume control they had to contend with peasant rebellions, including growing support for Ho Chi Minh’s Indochina Communist Party. In 1954 France was defeated at Dien Bien Phu and forced to withdraw from the whole of Indochina; Cambodia became independent under King Norodom Sihanouk, who had been crowned in 1941.
As the US-Vietnam War escalated, Cambodia tried to maintain neutrality. In 1967 Pol Pot’s group of communists launched an insurgency against Sihanouk and met with brutal repression. Two years later the US began bombing Cambodia. A coup set up Lon Nol as President of the pro-US Khmer Republic. By 1973 the US raids had reached their peak: in four years the bombing killed anywhere between 50,000 and 750,000 people, with the tonnage of bombing of the country estimated at more than that dropped by the Allies in all of World War Two.
Pol Pot’s Khmer Rouge forces defeated Lon Nol’s army and took Phnom Penh in 1975. The Communist Party of Kampuchea (as the country was renamed) was founded in 1976, which was officially styled ‘Year Zero’. The cities were evacuated and the country was cut off from the outside world. All Cambodians were forced into unpaid agricultural labour. The evacuation of hundreds of thousands of city-dwellers brought about mass starvation within a year.
In 1979 Vietnamese troops invaded and overthrew the Khmer Rouge, installing Heng Samrin as President and Hun Sen as Foreign Minister. Western nations condemned the invasion and imposed a trade-and-aid embargo on both Vietnam and Cambodia. The Khmer Rouge retained the country’s UN seat with the support of China and the West. The promise of US aid brought Sihanouk and another non-communist rebel, Son Sann, into a coalition-in-exile with the Khmer Rouge. In 1989 Vietnamese troops withdrew from Cambodia and the rebels resumed their military offensive. Under the UN Paris Agreement of 1991 all parties agreed on a ceasefire and disarmament. Hun Sen has remained in power ever since, following Vietnam in pursuit of a ‘liberalized market economy’ that operates in the interests of an élite.