Trial's uneven justice

The Phnom Penh Post

Written by Brendan Brady
Thursday, 19 February 2009

Author and commentator on Cambodia since the 1980s, Belgian Raoul Jennar has closely tracked the court’s stilted progress

You had lamented that non-Cambodians who you said shared responsibility for the crimes of the Khmer Rouge by supporting the regime - officials from Thailand, the US, Britain and Singapore - will not be indicted. Is it viable for the court to hold foreign government officials accountable in this trial?

The attitude of the international community with respect to the Khmer Rouge between 1979 and 1993 - which consisted of rearming them, supporting them in the UN, and integrating them into the peace process - translated into an incredible fiasco, without even mentioning the moral obscenity that it represented. But when asking for UN assist for the trial, the Cambodian government, knowing that the UN Security Council would not accept a demand for a tribunal with an overview for a period longer than 1975-79, did not ask that all actors responsible for the tragedy which engulfed the country starting in 1970 be implicated.

The culpability of the countries cited above is manifest in this tragedy. But, in the absence of a ruling by an international court, there remains the judgement of history. From Henry Kissinger to Ehud Olmert, there are more war criminals walking free than in prison. The international justice system is still very much at an embryonic stage.

Would you apply "genocide" to the Khmer Rouge's rule, or should the term be limited to descrIbing the regime's targeting of ethnic groups, like the Chinese, Vietnamese and Muslims, in Cambodia during that time?

I am opposed to the tendency of applying the term genocide.... This term can maybe apply to the Cham (Muslims); I don't think that it could apply to the Chinese of Cambodia, who were targeted more for their economic role.

Given how strong the assumption of guilt is, would a truth and reconciliation committee - such as those set up in South Africa, Rwanda and Uganda - have been more effective than a court whose mandate is to be neutral and follow rigourous legal procedures?

The system of apartheid used segregation as a method of governing, while the Democratic Kampuchea used physical elimination as a method of governing. I therefore don't think reconciliation committees would be applicable in such extreme circumstances. In Rwanda, where there was genocide, it's the international court that was used.

As to the presumption of guilt, even if it is strong, as was the case in the trials at Nuremberg and Tokyo; it is the greatness of humanity to have generalised the principle that the worst criminal has the right to be defended and to explain himself.

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WHY DO WE ONLY PURSUE THE DIRECTOR OF S-21 WHEN THERE WERE 196 SECURITY CENTERS ACROSS CAMBODIA?
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You had written that the number and status of those who are prosecuted will be a major indication of the trial's credibility, and in an online editorial you identified current Finance Minister Keat Chhon as a Khmer Rouge leader. According to your interpretation of the court's mandate, should he and others be tried in a second submission of suspects?

Since I wrote what you bring up, certain people who should have been tried, according to the mandate of the ECCC, have passed away. I never identified Keat Chhon as a "Khmer rouge leader". His name appears on the organisational chart of the government Pol Pot presided over. We know this government was not effectively real, and that the permanent members of its central committee governed the country alone. In reality, we know from the memoirs of Laurence Picq that Keat Chhon essentially performed the duty of translator and, like many, feared for his life.

It seems to me historically rigourous to say that all those who adhered to communism in Cambodia before 1975 cannot be labelled as Khmer Rouge, with the horrible historical significance that this label has acquired. I submit as proof that even communist Cambodians were victims of Khmers Rouge.

The archives tell us that there were people, at the head of security centres, who ordered and supervised the massacre of hundreds and even thousands of Cambodians during the Democratic Kampuchea period. Some of these people live freely. Why do we only pursue the director of S- 21 when there were 196 security centres across Cambodia, certain ones of these which were the execution place of 20,000 to 100,000 people?

Justice is not choosing a few scapegoats to make an example of.

The court settled on a narrow mandate. Do you think it is a mistake that the prosecutors are not asking that the Khmer Rouge's administrative organisation, Angkar, in whose name the massacres were carried out, and Santebal, its political police, be declared criminal organisations, even if only as a symbolic gesture to indict the regime itself?

My personal opinion is that the prosecution should demand that the governing organisations of the Khmer Rouge and its security apparatus be described as criminal organisations, like the Nazi Party and the Gestapo were at Nuremberg. The tribunal would then be free to follow this demand or not. At Nuremberg, the tribunal refused this description for the government of the Third Reich, though the prosecution had demanded it.

Given questions about the competence and transparency of the Cambodian judiciary, as well as the involvement of all Cambodians in the events being scrutinised, should the tribunal have been set up under UN control only, instead of a hybrid system?
No one can contest that the Cambodian judges were also victims. No one can contest that the Cambodian judicial system was itself a victim of the Pol Potist barbarism and that, to reconstitute a state of law in a country where 95 percent of the lawyers were killed, or where the Law Faculty was not reopened until 19 years ago (which barely gives us four promotions of lawyers), is a considerable task and, without a doubt, one that is far from being achieved.

Does this mean that justice should be administered uniquely by foreigners, in a foreign language and in a foreign country? These were Cambodians who massacred Cambodians in Cambodia. A formula must be found that takes into account all these elements. Over the course of long negotiations, a formula was adopted and its application is now put to the test. We should refrain from judging too quickly.

Has the trial process has helped debunk any lies or myths about who was responsible for brutality endured during this time?

It is too early to answer this question. It's my greatest hope that at the outcome of the tribunal, the historical truth is established - that the victims know what happened, why and by whom. And that the youth can accept the past, but at the same time turn towards the future, clearing away the false information that can only complicate their future. History must be known in order for it not to be repeated. If Cambodians want to enter the modern world, they need truth to gain serenity.