Between April 17, 1975 and January 7, 1979, the Cambodian communist movement, the Khmer People's Revolutionary Party, ruled over Cambodia. Consistent with its policy of agrarian socialism, the Khmer Rouge deported people in massive numbers from urban areas into the countryside and was responsible for the deaths of over 1.5 million people, under the direction of Pol Pot, before the Khmer Rouge’s military defeat by the Vietnamese. Since that time none of those responsible for the atrocities have been brought to justice.
In 2004, following immense pressure by non-governmental organizations (NGOs), scholars, and the international community, the Royal Government of Cambodia agreed with the United Nations to establish a tribunal to prosecute a select number of leaders responsible for the atrocities during the Khmer Rouge period. The Extraordinary Chambers, or Khmer Rouge Tribunal (KRT), was established as a hybrid court composed of both national and international prosecutors and judges.
However, most of those responsible for the massive atrocities have died off or been given amnesty from prosecution. Only two former Khmer Rouge officials, Kaing Khek Iev (a.k.a. Deuch) and Ta Mok, were indicted and placed in custody. Other senior leaders like Ieng Sary, Khieu Samphan, and Nuon Chea live comfortable lives in Cambodia’s capitol, Phnom Penh, and provincial towns. Many Khmer Rouge leaders, including the movement’s supreme leader Pol Pot, and senior cadre, such as Son Sen, Yun Yat, and Ke Pauk, have died since the 1975-1979 genocide. Unlike Chile’s stripping of Pinochet’s immunity, there is no indication that the Hun Sen government in Cambodia has any inclination to strip Ieng Sary or other leaders of their amnesty.
With Ta Mok's death a few months ago, one has to ask again whether the Khmer Rouge Tribunal will do any good. With only Deuch being prosecuted, has delayed justice also denied justice? Transitional justice focuses on a balance between both restorative and retributive theories of justice. The idea of retributive justice (or lex talionis) stems from the theoretical view that social equality, or fairness, can only be achieved through punishment. On the other hand restorative justice emphasizes the reconstruction and rehabilitation of a divided society and it involves perpetrators meeting their victims and views the overall criminal justice system as a community-building process.
History has shown that in post-conflict socieities, both principles of justice must be implemented for any hope of transition. In Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was primarily viewed as a retributive mechanism because it prosecuted those mostly responsibile for the Rwandan genocide. Equally important, however, were the hundreds of Gacaca courts established with the purpose of integrating the over 100,000 people responsible for committing the atrocities. However, unlike a traditional Western court, Gacaca courts focused on truth telling and community involvement. In essence, it required the accused to account his crimes in front of the victims families. In turn the accused would be released from jail and reintegrated back into socieities.
Similarly, the South African government instituted the Truth and Reconciliation Commission with the understanding that given the deep divisions caused by apartheid, only truth-telling and foregiveness could create the roots of reconciliation and unity.
Recognizing the importance of both restitution and retribution to the process of transitional justice both the Law on the Establishment of the Extraordinary Chambers (“EC Law”) and the agreement between the United Nations and Cambodia have explicit provisions requiring the KRT “to provide for the protection of victims and witnesses. However, existing legislation inside Cambodia makes it ambiguous, at best, as to the degree of victim and witnesses participation and protection proffered by the KRT or the Cambodian government. While it is reasonably likely that the KRT itself will read into its provisions a more substantiated roles for victims and witnesses, a number of institutional problems currently facing the KRT make it less reasonable that it will “produce anything but a few symbolic trials, if any.” Thus, the true strength of the KRT will not be found in its prosecutorial power, for it is clear that the majority of the Khmer Rouge leadership will not be tried, but rather in its role in creating an authoritative history of the Khmer Rouge period.
Without an expanded focus on restorative justice, it is unlikely that individualized accounts of victimization and offenses will be developed and along with it, the building blocks to reconciliation. Rather than repeating the mistakes of the past, it is important that the KRT consider the following steps to satisfy the need for the tribunal’s reconciliatory role:
- Utilize NGOs to ensure the full participation and protection of victims and witnesses in trials, if they wish, pursuant to Cambodian law.
- Create additional legislative measures which guarantee the security of witnesses and victims before, during, and after the trial.
- Create a separate witness and victim unit using international monitors and domestic police agents in order to prevent acts of reprisal.
- Develop a comprehensive history, which includes individual accounts of victimization.
- Draft legislation making it explicitly clear that victims have the right to fully participate in trials.
Failure to consider these or similar measures may prevent the KRT from emerging as an independent judicial body that can bring justice and reconciliation to Cambodia. An ineffective tribunal would only encourage the perpetrators of genocide in their belief in impunity and give them cause to commit further crimes. The KRT’s success will depend on its ability to adapt to the need and hopes of the Cambodian people. Without required changes promoting protection and integration, the KRT will serve as nothing more than a $56 million dollar institution created to appease the international conscious.