Elusive Justice for the Victims of the Khmer Rouge.

• Author: Marks, Stephen P.

The theme of international justice suggests a range of both abstract concepts regarding how nations and individuals are held accountable as well as the institutions by which this process is accomplished. In this article, I will focus on the form of justice called retributive justice(1) (punishment for wrongdoing), the international institutions that establish rules governing this form of justice and their application through national and international procedures and mechanisms. I will analyze the nature and limits of efforts to achieve international justice by examining the case of Cambodia--where international crimes committed by the Democratic Republic of Kampuchea (DRK)(2) during its reign of terror from 1975 to 1979 resulted in 1.7 million deaths out of a population of 7.9 million.(3)

For 20 years justice has eluded the victims of the Khmer Rouge (D.K.). As this article goes to press, the first genuine attempt to subject Khmer Rouge defendants accused of massive human rights violations to a criminal proceeding appears possible. A team of experts mandated by the United Nations secretary-general, in response to a request by the Cambodian leadership, will soon deliver its recommendations, which may lead to trials held by either an international tribunal or a domestic court created with significant international participation. Yet the outcome of this latest effort to end impunity for the Khmer Rouge is by no means certain.

BETWEEN PEACE AND JUSTICE

From a human rights perspective, accountability for violations of agreed-upon norms of behavior governing the treatment of individuals and groups is a prerequisite for justice. Justice cannot be achieved until and unless those responsible for serious human rights violations are prosecuted by a competent and impartial tribunal. Moreover, the international community bears a responsibility to "achieve justice for the victims through accountability of the offenders."(4) Alternative modes of rendering justice to victims include corrective justice either through official acknowledgment of the truth or compensation to victims' families.(5)

From a political perspective, justice competes with other values in society, especially in societies undergoing democratic transitions after civil war or massive human rights violations. In such cases, justice in the form of prosecutions of leaders for past abuses competes with a concern for peace and stability based on political expediency, as well as the desire for reconciliation based on moral or religious beliefs.(6) The argument against prosecution usually claims that political compromises must be offered to members of a conflict-weary society so that they have the option to seek accommodation rather than remain entrenched in absolutist positions.(7) This argument was illustrated in the recent controversy over the Spanish request to Britain to extradite the former Chilean dictator Augusto Pinochet. Chilean Foreign Minister Jose Miguel Insulza opposed the extradition because "[t]he Chilean people have to be allowed to judge and decide how they are going to deal with their past."(8) Despite this opinion, many former victims and their families reject this Faustian bargain in the name of justice.(9)

Cambodia has confronted similar dramatic choices between peace and justice. The Khmer Rouge were removed from power by the Vietnamese, who invaded in 1979 and set up the People's Republic of Kampuchea (PRK). At that time, there was no attempt at reconciliation since the Khmer Rouge continued fighting the new regime from its positions in the northwest, as did two noncommunist resistance movements. The United States marshaled widespread support in the U.N. General Assembly to maintain the Khmer Rouge seat as a challenge to the regime installed by Vietnam in Phnom Penh. But in 1991, under a political agreement signed at the conclusion of the Paris Conference on Cambodia, co-chaired by France and Indonesia, the Khmer Rouge became equal partners with the regime in Phnom Penh and the two noncommunist movements.(10)

Under the Paris Agreements, the United Nations Transitional Authority in Cambodia (UNTAC) was able to organize elections in 1993, in which the Khmer Rouge chose not to participate. The crisis that followed the elections was resolved through the creation of a coalition government between the Cambodian People's Party (CPP) and the National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia (FUNCINPEC).(11) These two parties were headed by Hun Sen, the former leader of the Vietnamese-sponsored regime, and Prince Norodom Ranariddh, respectively.

The new government offered amnesty to Khmer Rouge leaders as an incentive to defect to Phnom Penh but after little progress, the frustrated government declared their movement illegal in 1995. The breakdown of the government coalition in July 1997, with the ousting of first Prime Minister Ranariddh by second Prime Minister Hun Sen, allowed Hun Sen to consolidate his power but caused him to lose legitimacy in the eyes of most countries. To regain legitimacy and international aid Hun Sen allowed elections to take place in July 1998, which his party won but the opposition contended. Finally, in November 1998, Hun Sen had reestablished the coalition, this time with Ranariddh as president of the National Assembly.

Throughout the period of the PRK government (1979 to 1989) and its successors--the State of Cambodia (SOC, from 1989 to 1992), UNTAC (from 1992 to 1993) and the coalition governments (1993 to the present)--the nearly constant political turmoil has prevented the 1.7 million victims of the Khmer Rouge and their surviving family members from gaining justice. How and why has justice proved so elusive in this case?

INTERNATIONAL RESPONSE TO THE CAMBODIAN GENOCIDE: 1975 TO 1990

The most obvious means of international justice by which the leaders of the Khmer Rouge could be tried is pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.(12) The convention requires states parties to punish "persons committing genocide or any of the other acts enumerated [in the convention], whether they are constitutionally responsible rulers, public officials or private individuals,"(13) by either "trying them or extraditing them to a State or international penal tribunal with jurisdiction."(14) The convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

* Killing members of the group;

* Causing serious bodily or mental harm to members of the group;

* Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

* Imposing measures intended to prevent births within the group; and

* Forcibly transferring children of the group to another group.(15)

There is little dispute that the Khmer Rouge leadership should be held responsible for the destruction, in part, of ethnic, racial and religious groups of Cham, Chinese, Vietnamese, Thai(16) and Buddhists in Cambodia.(17) However, there is some disagreement regarding the majority of the victims, mainly Khmers (ethnic Cambodians), who do not belong to any of these minority groups. The legal scholar Hurst Hannum, for example, considers Khmers to be a "national group" under the convention, whose treatment by the Khmer Rouge "is more than adequate to meet the Genocide Convention's requirements as to proportionality, scale, or totality of lives lost."(18)

Some have argued, however, that most of the deaths caused by the Khmer Rouge do not fit the convention's definition of genocide,(19) but rather belong to the category of "political genocide" or "auto-genocide," which the convention does not cover.(20) According to a recent study, "the argument that the Khmer Rouge committed genocide with respect to the Khmer national group appears to be relatively weak in light of the facts."(21) It seems clear that the killing of one's own national group, even on a mass scale, was not intended by the drafters to be covered by the convention. Thus, whatever tribunal may eventually judge Khmer Rouge leaders, the charge of genocide will only be applied to victims belonging to one of the minority groups.

Instead, the mass extermination of Khmers, as well as acts of forced labor and torture, would be punishable under the charge of crimes against humanity. Moreover, mass, arbitrary killings and torture, regardless of the victims' group, constitute violations of customary international law for which Khmer Rouge leaders may also be held criminally liable.(22) The charge of war crimes is also applicable with respect to a more limited number of acts committed during warfare against the Vietnamese.(23) Finally, separate charges may be brought under conventional or customary international law for slavery, forced labor, torture and violation of the immunities of diplomatic and consular personnel.(24)

In addition to prosecution by a national or international criminal tribunal, the Genocide Convention provides for referral to the International Court of Justice. Implementing that provision, however, runs into definitional and political obstacles. The convention specifies in Article IX that:

Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.(25) During the 1980s, the defendant state would have been the Coalition Government of Democratic Kampuchea (CGDK), which was headed by Prince Sihanouk and included the resistance movements fighting the Vietnamese-installed PRK, including the D.K., whose representative occupied the Cambodian seat at the...