By William Shawcross
Just before Christmas 1975, I drove east from Bangkok a couple of hundred miles to Thailand’s border with Cambodia. It was some eight months since the Khmer Rouge Communists had won power in Cambodia, defeating the U.S.-backed government of Gen. Lon Nol.
Since then the Khmer Rouge had expelled all Westerners (and most other foreigners), emptied all the towns of people, and embarked on a radical Maoist experiment to return the country to an autarchic preindustrial age.
The only witnesses of the terror which this plan involved were those refugees who had managed to make it to the Thai border. (Those who reached Vietnam were kept silent by the Vietnamese Communists, still at that stage allied to the Khmer Rouge.)
The refugees I met in a United Nations High Commissioner for Refugees (UNHCR) camp at the border town of Aranyaprathet all had horrible tales to tell. They spoke of Khmer Rouge cadres beating babies to death against trees, of any adult suspected of ties to the old regime being clubbed to death or shot, of starvation and total lack of medical care, of men with glasses being killed because they were “intellectuals.” It was absolutely clear to me that these refugees were telling the truth. History shows that refugees usually do. Less clear at that time was why the Khmer Rouge were behaving in such an atrocious way.
The killing continued and even intensified over the next three-and-a-half years. No intervention was attempted to stop it. When U.S. Senator George McGovern proposed a military intervention in the name of protecting humanity, he was mocked.
At the end of 1978, after perhaps 1.5 to 2 million of the 7 million people in Cambodia had died, the Khmer Rouge were overthrown by their erstwhile Vietnamese allies. Hanoi installed instead a client Communist regime. Its policies can in no way be compared to those of the Khmer Rouge, but it was a brutal one party system nonetheless.
In 1980 I visited Cambodia and was taken to a mass grave outside Phnom Penh where victims of the Khmer Rouge terror were buried. These people had been clubbed to death; their hands were still tied, the skulls were bashed in, and some of the bones still had putrid flesh clinging to them.
I had heard about such mass graves since childhood—my father was the chief British prosecutor at Nuremberg and one of my earliest memories is of listening to recordings of his speeches for the prosecution. In one he quoted the terrible atrocities seen at a grave in a place called Dubno. The images of families of all ages herded towards pits where SS men smoking cigarettes were waiting to shoot them made a lifelong impression on me. Obviously I had hoped never to see such sights myself. But in Cambodia I did.
Since the overthrow of the Khmer Rouge no real effort has been made to bring the Khmer Rouge leaders to justice. In summer 1979 the Vietnamese staged a show trial of the leaders in absentia—it was a farce. Since then there has been no successful effort to bring the Khmer Rouge to justice, in part for political reasons.
The question is with what precise crimes they should be charged. Since the majority of their victims were other Cambodians, the Genocide Convention on its face probably does not apply to the majority of these killings, and this has been the predominant view within the international legal community until recently. However, there is prima facie evidence that they assaulted in particular such ethnic and religious groups as the Cham, the Vietnamese, and the Buddhist monkhood. These attacks would probably meet the standard in the Genocide Convention of action with an “intent to destroy in whole or in part” these groups.
Crimes against humanity have been linked to armed conflict, whether internal or international, but there is an expanding body of opinion which suggests that under international law this need not always be so and that large-scale killings can constitute crimes against humanity even in the absence of armed conflict. The International Tribunal for the Former Yugoslavia has ruled that crimes against humanity need have no link to armed conflict, and the 1998 Rome Statute of the International Criminal Court makes no reference to a link. A State Department study in 1995 concluded that the Khmer Rouge could be tried for crimes against humanity, and the United States and other governments attempted unsuccessfully in 1998 to bring Pol Pot to trial shortly before his death.
The Khmer Rouge’s systematic murder, extermination, unacceptable forced labor, torture, forcible transfers of population—all provide prima facie evidence of massive persecutions. A prosecution of the Khmer Rouge for crimes against humanity would likely feature charges of persecution as well as extermination and murder at its center. Nuremberg and subsequent tribunals determined the following acts to constitute elements in persecution: deprivations of the rights of citizenship, to teach, to practice professions, to obtain education, and to marry freely; arrest and confinement, beatings, mutilation, torture, confiscation of property; deportation to ghettos, slave labor, and extermination; plunder and destruction of businesses as a means of terror or related to other violence; deprivation of fair trial rights; a collective fine, seizure of assets, creation of ghettos, forcing the wearing of yellow stars, boycott of businesses, preaching hatred, and incitement to murder and extermination.
The 1998 Rome Statute for the International Criminal Court includes persecution among listed crimes against humanity and defines it as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” The statute proscribes “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any other act referred to in this paragraph [on crimes against humanity] or any other crime within the jurisdiction of the court.” A crime against humanity, according to the statute, must be committed as part of a “widespread or systematic attack.”
Until now there has been no accountability in Cambodia at all. Even though it is almost twenty years since they were overthrown and further abuses have since been committed against the Cambodian people, the crimes of the Khmer Rouge are without parallel. Peace and justice go hand in hand. There is still no real peace in Cambodia; one reason is that a culture of impunity has developed there as a result of the total lack of accountability.
Nuremberg embodied the rhetoric of progress. The judgment of Nuremberg was grasped, in Rebecca West’s words, as “a sort of legalistic prayer that the Kingdom of Heaven should be with us.”
It was predictable that that prayer would not be fulfilled. But even when the prescriptions laid down at Nuremberg are ignored as cruelly as they have been in the last fifty years, they have not been forgotten. Now, perhaps, with the creation of the international court in Rome, they will be put into practice once again. In Cambodia, as well as in Bosnia and Rwanda, the atrocities of the recent past need to be examined.
In the case of Cambodia, justice has long been denied, but by the middle of 2006, after long arguments between the Cambodian government and the United Nations, a Tribunal was at last underway. Just how effective it could be was open to question. The Tribunal has been given a $56 million budget, and the enabling legislation stated that it would only try the most senior leaders and “those most responsible” for crimes committed during the Khmer Rouge years in power.
Whether justice will eventually be served, even in part, is still very uncertain. Many of “those most responsible,” notably Pol Pot himself, have already died. Others have been protected by the present Cambodian government, many of whose members had originally been Khmer Rouge cadres and which is now notoriously corrupt and given to its own extralegal behavior. There is little reason for confidence that any interventions by the government will assist due process. If it continues to try to control the proceedings for political reasons there is a danger that the rationale for the Tribunal would collapse. Certainly, arguments over its conduct will continue. When the trials finally begin, denial and memory loss will no doubt prevail and the process may leave the Cambodian people more confused than they already are. It is unlikely to end the culture of impunity which exists within Cambodia today. But it is probably true to say that unless even a limited attempt is made to bring to justice some representatives of one of the worst crimes against humanity in recent history, Cambodia would have absolutely no hope of coming to terms with its past and therefore building a better future.
A reclining Buddha overlooks the skeletal remains of murdered Cambodians discovered near a temple by the Vietnamese when they occupied Sisophon in 1980.
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