Unpacking Cambodia’s Nuremberg Moment

Posted in: Human Rights

Last week, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered its first genocide convictions more than forty years after the relevant events. The hybrid tribunal opened its doors in 2006 for trials of heinous crimes committed during the 1975-1979 Khmer Rouge regime. After a very slow start, the Trial Chamber finally completed its case against second in command to Pol Pot and former chief ideologist for the Khmer Rouge Nuon Chea and former Khmer Rouge Head of State Khieu Samphan. They were found guilty of genocide against the Cham minority, with the Trial Chamber noting the numerous executions and the widespread dispersal of other Chams to be fully assimilated into the Cambodian population, as well as the regime’s imposition of various forms of extreme religious discrimination upon them.

The Trial Chamber also found the duo guilty of genocide against the ethnic Vietnamese in Cambodia, given their roles in the “nationwide policy to expel [them]” and the massive deliberate killings that were “systematically organized” to target the ethnic Vietnamese “not as individuals but based on their membership of the group and their perceived ethnicity.” Now that these verdicts have finally been rendered, what should global civil society and Cambodians themselves take from this recent and perhaps last decision from the ECCC?

The significance of the Trial Chamber’s ruling has been hotly contested. Some have lauded the verdicts as “Cambodia’s Nuremberg moment,” harkening back to the landmark Nazi trials that sparked the modern movement for international criminal justice. In contrast, others have lamented that the court served as political theater where “justice delayed is justice denied and noted bitterly that the court convicted only three of the thousands responsible for the brutal Khmer regime.

I suggest three initial takeaways. First, I think the judicial finding of genocide will benefit many of the  victims and Cambodian society in general, but one ought not to expect a few high-profile guilty verdicts to do all the work of healing a society that has experienced a mass trauma. Second, while the genocide determination ought to provide some solace to Cham and Vietnamese victims and their larger communities, it is also a bitter reminder of the limits of the internationally recognized definition of genocide. The definition’s exclusion of politically motivated crimes has proved particularly problematic in Cambodia, where the vast majority of victims are ethnic Khmer, and without a broader definition can never lay claim to the mantle of genocide. Lastly, while the genocide finding has dominated the news coverage, more press attention ought to be paid to the related reparations determinations. While scholars have long discussed the importance of the collective and moral reparations generated by the Chambers, few outsiders understand their vital importance to the Cambodian people.

I. Holism

I probably side with those who think the genocide ruling is a deeply important decision, though I am also sympathetic to those who think the Chambers did not go nearly far enough. What this ruling did do and do so effectively was to attach a legally significant name to the experience of the Cham and the ethnic Vietnamese with the imprimatur of the ECCC. After hearing testimony from numerous witnesses and evaluating extensive documentation and forensic evidence, a court decided certain events did, in fact, happen with the requisite genocidal intent behind them. That sort of recognition can be very powerful for victims and for the larger society. But such a singular set of determinations cannot be expected to do everything.

What else needs to be done? A genocide ruling identifying the responsibility of those at the top of a regime does not address the responsibility of all those lower-level Khmer Rouge members who carried out those orders, and the ECCC’s focus on those most responsible meant that it was never planning to address those lower level members. Such accountability could—but need not take place through—trials, but it might also be fostered through truth and reconciliation or other processes. Nor can trials take the place of widespread de-Khmerification, though given the age of the perpetrators, that doesn’t seem particularly feasible at this point either. The handful of ECCC trials also did do some, but ought not be expected to do all, of the memory work of acknowledging and coming to terms with the atrocities of the Khmer Rouge. This memory work is particularly important when the current President has long been committed to a policy of silence, arguing that “once the Khmer Rouge military threat to Cambodia had ended, everyone should ‘dig a hole and bury the past.’” One of the lessons of transitional justice which I think is obviously applicable here is that no one process can address all of the people responsible or all of ways harms are being experienced contemporaneously.     

II. Genocide

Another example of why transitional justice must be addressed through multiple mechanisms relates to the limitations created by legal definitions of crimes. Most lay people would probably describe the mass atrocities committed by the Khmer Rouge as a genocide. Those not familiar with the legal definition of genocide might be surprised to learn how difficult it is to meet. Under the genocide convention, the crime of genocide is defined as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” On its face, this definition excludes those acts targeting a political group. The vast majority of those killed by the Khmer Rouge were ethnic Khmer who were targeted and killed not for their membership in an ethnic group, but for their political links to prior regimes or their association with Westernization. Under conventional legal understandings, they were not victims of genocide. The Chambers’ recent convictions reflect this problematic distinction, allowing Cham and ethnic Vietnamese to prevail, but making no similar provision for ethnic Khmer. Of course, crimes against humanity charges, which include acts “committed as part of a widespread or systematic attack directed against any civilian population,” and “against identifiable groups on the basis of political affiliation” can cover the widespread killing of ethnic Khmer,  but such charges may still lack the particular import of a genocide charge which many understand to be the “crime of crimes.”  When common understandings of genocide depart so much from the legal understanding, the mismatch might suggest a need for reform, either to expand the definition of genocide or to dismantle the informal hierarchy that places genocide above crimes against humanity.

III. Reparations

Lastly, one aspect of the recent genocide decision that should be garnering more attention is the Chambers’ ordering of reparations. In this case, for instance, the lawyers for the thousands of civil parties have coordinated with the Victims Support Section to seek judicial recognition for specific reparation projects tied to the criminal verdict. When defendants cannot afford them, special funding exists to pay for such reparations. In this most recent case, the Trial Chambers approved several projects aimed at non-repetition of the Khmer Rouge’s heinous crimes by documenting the history of and educating the public about the Khmer Rouge and the experiences of the Cham, the Vietnamese and those in forced marriages. Other approved projects aim to provide satisfaction, a distinctive form of reparation aimed at non-material damages, by commemorating the suffering of civil parties and to rehabilitate victims through the provision of mental and physical care. Such reparations are carefully tailored to what was proved at trial and thus the Chamber also rejected projects designed to acknowledge the suffering of other indigenous minorities under the Khmer Rouge since the case had no charges related to their treatment. These reparation projects might do some of the work that critics fear the ruling itself will not. While the reparations projects are not aimed at criminal responsibility, they can do the sort of societal work regarding education and memory that the Cambodian society needs in order to heal and move forward.

Though again, even these reparations cannot do everything. Perhaps most interesting to those unfamiliar with the ECCC’s practices, the Chamber has rejected livelihood supports “in the form of individual monetary payments” because the Chamber is only authorized to provide collective and moral reparations. This means, for instance, individuals could have their names listed in the trial proceedings as victims and receive named apologies from perpetrators, but the Chambers will not provide the kinds of individualized payments Americans might be most familiar with as restitution.

In conclusion, I think the recent Cambodian genocide rulings did a reasonably good job accomplishing what high profile criminal proceedings can be expected to do in settings of transitional justice, but it is a mistake to expect them to do everything. In this setting, as in so many others, individual criminal responsibility is important but so too is a full societal reckoning with the past extreme and pervasive wrongdoing in order to prevent it from poisoning the present and the future.