A Convenient Truth
History, Politics and Justice in the
Extraordinary Chambers in the Courts of Cambodia
Wouter Leendert Christiaan Padmos wouterpadmos@gmail.com Student number: 10354891 Master thesis – University of Amsterdam History: Holocaust and Genocide Studies Supervisor: Dr. Thijs Bouwknegt Second reader: Prof. dr. Nanci Adler September 2018
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The truth hurts so bad, wouldn’t you say? So why tell it?
If ignorance is bliss then I’m in Heaven now1
- 3 - Table of contents
Abstract 4
Introduction 5
Structure 8
Methodology and Sources 10
Chapter 1: Transitional Justice and Transitional Justice and the writing of history in
international criminal trials 13
1.1 The age of Transitional Justice 13
1.2 Tribunals 14
1.3 International Criminal Trials and the Writing of History 18
Chapter 2 History of Cambodia 23
2.1 French Indochina, Independence and the Lon Nol Coup 23
2.2 Democratic Kampuchea 26
2.3 The People’s Republic of Kampuchea 28
2.4 Transition: The State of Cambodia and the New Kingdom 32
Chapter 3 ECCC 38
3.1 Establishment of the ECCC 38
3.2 Court Structure and Jurisdiction 41
3.3 Cases Before the ECCC 43
3.4 Political Interference 50
3.5 The Partial Narrative: A Convenient Truth 54
3.6 The PRT and the ECCC 58
Conclusion 60
- 4 - Abstract
This thesis explains the interplay between history, politics and justice within and surrounding the Extraordinary Chambers in the Courts of Cambodia (ECCC). This court was established to try the senior leaders and those most responsible for the crimes committed during the Democratic Kampuchea (DK) regime (1975-1979), better known as the Khmer Rouge (KR), during which an estimated 1.7 million Cambodians died from starvation, malnutrition, sickness and execution. The tribunal began its first case 30 years after the end of Khmer Rouge rule, seeking to bring an end to impunity and strengthening national reconciliation in Cambodia. This thesis explores why the first trial was undertaken 30 years after Khmer Rouge rule, what was undertaken in the meantime to bring those responsible for crimes to justice and how the current attempt (the ECCC) came about and how this tribunal handles the Khmer Rouge past. For a long time, a tribunal could not be established because after its overthrow in 1979 by the Vietnamese. The Khmer Rouge movement continued to wage a guerilla war from the jungle for almost 20 years. The new government consisted of former Khmer Rouge cadres who had defected to Vietnam during Khmer Rouge rule. Seeking legitimacy, this government has been in a continued effort to distance itself from the DK atrocities. Attempts to do this include the 1979 People’s Revolutionary Tribunal (PRT) and the establishment of the S-21 genocide museum. This trend persisted with the coming of the ECCC. This is a so-called hybrid tribunal: both the law and the personnel are a combination between domestic and international. It was established with the help of the United Nations (UN). Because the court takes place on Cambodian soil and Cambodia never had a strong and independent judicial infrastructure, the court is susceptible to political interference by the government. The Cambodian government uses the ECCC as a political tool to definitely distance itself from its Khmer Rouge past, thereby creating a convenient yet partial narrative and truth for themselves, the nation and the outside world. While also partially addressing the issue of individual responsibility after grave human rights abuses, the government took the opportunity to shape the history of the Khmer Rouge and the dealing with its legacy as they would like it to be told.
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And then there is the issue of the continuing interference of the Cambodian government in the work of this court. […] The underlying, more fundamental problem in this case is that this is not an independent court.[…] All Cambodian judges at the ECCC are or were members of the CPP. [They] were chosen for their loyalty.[…] this court is the government.2
Michiel Pestman, former co-lawyer in the second case before the Extraordinary Chambers in the Courts of Cambodia, made this accusation of political interference by the Royal Government of Cambodia.3 In his view, Cambodian politicians structurally influenced and interfered with the court proceedings. Allegations of political interference, judicial bias and corruption have plagued the tribunal since it was established.4 For example, six high-ranking government officials failed to appear before the tribunal when they were summonsed to testify in 2009.5 The interference showed the government had the will and also had the power
to interfere with the court proceedings and investigations. Furthermore, it showed the court was obstructed in a part of its work, namely the calling of witnesses, which could potentially stand in the way of a fair trial. The interference also poses two questions: why does the Cambodian government interfere with the court proceedings and how can it do so? Is there a possibility that with government influence the court tells only a part of the story?
International criminal courts like the ECCC are expected to contribute to the knowledge about their jurisdictional period and to the history that is written about that
2 ECCC. Michiel Pestman. “Response to opening statement”, (23 November 2011): 3. Available at
https://www.eccc.gov.kh/en/document/court/michiel-pestman-nuon-chea-defence-team-response-opening-statement-prosecutor
The CPP is the Cambodian People’s Party, the ruling party of prime minister Hun Sen.
3 From here the Extraordinary Chambers in the Courts of Cambodia will be called the ECCC. The Royal
Government of Cambodia will be referred to as the government of Cambodia.
4 Open Society Justice Initiative(OSJI). “Political Interference at the Extraordinary Chambers in the Courts of
Cambodia.” July 2010; Seth Mydans, “Corruption Allegations Affect Khmer Rouge Trials,” New York Times, April 9, 2009. Charlie Campbell, “Cambodia’s Khmer Rouge Trials are a shocking failure”, Time, February 13, 2014; Shannon Maree Torrens, “Allegations of Political Interference, Bias and Corruption at the ECCC,” in The
Extraordinary Chambers in the Courts of Cambodia. Assessing their Contribution to International Law, ed.
Simon M. Meisenberg and Ignaz Stegmiller (The Hague: T.M.C. Asser Press, 2016), 45-76. Michiel Pestman, “Response to Opening Statement”.
5 OSJI. “Political Interference.” Unfortunately, the original source from 7 October 2009, in which International
Investigating Judge Marcel Lemonde asked the government officials to testify, can no longer be found on the ECCC website. Only the document referencing to these releases could be found. ECCC, “Press Release. A Number of Case File Documents in Case 002 Published,” 7 October 2009. Available at
https://www.eccc.gov.kh/sites/default/files/media/ECCC_Press_Release_7_Oct_2009_ENG-FRE_1.pdf
The court report from October 2009 does not say anything about this incident. ECCC, “The Court Report October 2009.” Available at
https://www.eccc.gov.kh/sites/default/files/publications/The%20Court%20Report%20%5BOct%202009%5D% 20Final.pdf
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period.6 The relationship between justice in international criminal courts and history and the
writing of history, which can occur between judges and historians, has been described as complex and sometimes problematic.7 Both the use of history in international criminal courts and the historical accounts produced by the parties within the court should be handled with caution.8 Because the accuracy of these historical accounts is questioned, how and which each party chose to use the accounts should be considered. The question should be asked who uses historical accounts in court an what their purpose is using them. This seems all the more important when a country’s government is potentially influencing the judicial proceedings of the tribunal. By doing this, they potentially influence the historical account that the tribunal produces about the jurisdictional period.
The ECCC was established to try the senior leaders and those most responsible for the crimes committed in Cambodia during the Democratic Kampuchea (DK) period (better known as the Khmer Rouge), from 17 April 1975 to 6 January 1979.9 During this period, an estimated quarter of the Cambodian population died as a result of overwork, illness, starvation and executions.10 Democratic Kampuchea was a radical communist experiment, resulting in this high number of deaths.11 After DK, the country was ravaged by civil war and was occupied by Vietnam for 10 years. The Paris Peace Agreements of 1991, signed by 19 countries including Cambodia, Vietnam, the United States of America and France, attempted to restore peace in the country.12 A fragile democracy was installed in Cambodia and, with
the coming peace, there was a prospect of finally prosecuting the remaining leaders of DK.
6 Michiel Pestman, “Response to Opening Statement,” 2-3.
7 Richard Ashby Wilson, Writing History in International Criminal Trials (New York: Cambridge University
Press, 2011), 1; Richard Ashby Wilson, “The historical record of the international Criminal Tribunal for the Former Yugoslavia” Human Rights Quarterly 27 no. 3 (2005): 908-942; Thijs B. Bouwknegt, “Cross-examining the Past: Transitional Justice, Mass Atrocity Trials and History in Africa” (PhD diss., University of Amsterdam, 2017).
8 Thijs Bouwknegt, “The International Criminal Trial Record as Historical Source” in Understanding the Age of
Transitional Justice. Crimes, Courts, Commissions, and Chronicling, ed. Nanci Adler (New Brunswick, New
Jersey: Rutgers University Press, 218), 135-136.
9 ECCC, “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution
of Crimes Committed During the Period of Democratic Kampuchea,” (27 October 2004), 1. Available at
https://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf
10 Ben Kiernan, The Pol Pot regime : race, power, and genocide in Cambodia under the Khmer Rouge, 1975-79
(New Haven: Yale University Press, 1996); David P. Chandler, A History of Cambodia (Boulder: Westview Press, 1992 (2nd edition))
11 Ben Kiernan, The Pol Pot Regime. David Chandler, A History of Cambodia.
12 United Nations General Assembly Security Council, “Final Act of the Paris Conference on Cambodia,” 2.
http://www.cambodia.org/downloads/pdf/KH_911023_FrameworkComprehensivePoliticalSettlementCambodia. pdf
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After long negotiations between the United Nations (UN) and the Cambodian government, the ECCC became fully operational in 2007.13
The relationship between writing history of past crimes and justice in international criminal trials has mainly been analysed with examples from all international criminal trials.14 This has been achieved to a lesser degree with the ECCC. Since the government interferes with the court, the way history takes shape and is used in this court may be different from other international criminal trials. This makes it relevant to examine the role of the ECCC in constructing, reconstructing, examining and judging of Cambodia’s recent history. The main question here is: to what extent have justice, politics and history influenced each other and interacted with each other in the ECCC and to what extent has this affected the court proceedings and the search for justice and truth?
To answer this main research question I propose three sub-questions. Firstly, how do the different ways of addressing mass human rights violations, such as the ones that occurred in Cambodia contribute to the writing of the history of the period that they deal with (in the case of Cambodia the DK period)? What are their aims? Who determines if they succeed? Answering these questions will help better understand what kind of institution the ECCC is and what alternatives there are to address mass human rights violations. Secondly, how has the recent political history of Cambodia developed? What were the previous ways in which Cambodia dealt with the Khmer Rouge legacy? What have been sensitive topics? What has been undertaken in terms of dealing with the past of the Khmer Rouge before the establishment of the ECCC, and to what extent was this process stimulated or counteracted? Finally, what is the meaning of the ECCC within the different ways of coming to terms with the past (first question) and the interaction with Cambodian history and its place in history (second question)?
13 David Scheffer, All the Missing Souls. A personal History of the War Crimes Tribunals (Princeton University
Press, 2012), 343.
14 Richard Wilson has mainly focussed on the ad-hoc tribunals The International Criminal Tribunal for the
former Yugoslavia (ICTY) in The Hague, International Criminal Tribunal for Rwanda (ICTR) in Arusha and the permanent International Criminal Court (ICC) in The Hague. Thijs Bouwknegt has mainly focussed on ICTR, ICC and the Special Court for Sierra Leone (SCSL) in Freetown.
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The main research question can be depicted in the simplified scheme above. Central is the interaction between history, politics and justice, with the ECCC as a focal point and case-study.
Structure
The three sub-questions correspond with the three chapters presented in this thesis. An answer to the first sub-question will inevitably draw from related literature from the field of transitional justice. Broadly, transitional justice may be defined as ‘the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes’.15 These legal responses can take a multitude
of shapes including: trials, financial compensation and truth commissions. The first chapter will explicitly demonstrate what kind of tribunal the ECCC is and what other options exist for international criminal tribunals. Furthermore, international criminal trials like the ones at the ECCC are believed and sometimes expected to contribute to the establishment of facts and the writing of history of the period in question.16 The relation between justice and the writing
of history (and between historians and judges) is a complicated one. These fields have different values, goals and methods of conducting research and thus reach different conclusions in different ways.17 What kind of historical accounts do international courts
15 Ruti Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003) 69-94, 69.
16 Wilson, Writing History, 4; Bouwknegt, Cross-examining the Past, 13-15; Ben Kiernan, “Coming to Terms
with the Past. Cambodia” History Today, September 2004, 16-19, 19.
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produce and what should the historians’ attitude be towards this kind of history and the sources they produce? By answering these questions, the first chapter will provide a theoretical background to the second and third chapter.
In the second chapter the political history of Cambodia since its independence from France in 1953 will be discussed, in order to understand the causes, courses and consequences of mass violence and Cambodia’s dealing with these episodes of violence. The era of DK was one of the bloodiest in the country’s history and resulted in the death of approximately 1.7 million people.18 The periods before and after Khmer Rouge rule, however, have also experienced large-scale bombings, war, civil war, uprisings and famine.19 The ECCC examines, prosecutes and judges the members of the Democratic Kampuchea leadership, but to understand why it does so and why it started its first case 30 years after Khmer Rouge rule, one needs to understand the periods preceding and following as well. A feature of the initial reactions to the Khmer Rouge atrocities was the People’s Revolutionary Tribunal (PRT), which sentenced Khmer Rouge leader Saloth Sar (better known under his alias Pol Pot, short for the French Politique Potential) and minister of foreign affairs Ieng Sary to death in absentia at a trial in Phnom Penh in August 1979.20 Unlike the ECCC, the trial was held by the Vietnamese who had ousted the Khmer Rouge in January of the same year.21 The meaning of this trial in the light of ways of responding to mass human rights
violations and the history of Cambodia will be discussed. Other contentious and possible sensitive elements in the history of Cambodia will also be discussed. Other ways in which the legacy of the Khmer Rouge atrocities were dealt with will be examined as well. To what extent has there been political continuity through Cambodia’s recent history? Why was it deemed necessary by the Cambodian government and the international community to establish an international criminal tribunal to judge the same crimes that had been judged already?
In the third chapter the ECCC itself will be examined. It will start with an examination of when, how and why the court was established. The outcome of the long negotiations in terms of structure, jurisdiction and set goals will be discussed. Furthermore, the development of each of the cases will be examined. This chapter will additionally
18 Chandler, S-21, preface. Chandler, History of Cambodia, 259.
19 David Chandler, The Tragedy of Cambodian History (Yale University Press, 1991).
20 Howard J. De Nike, John Quigley, and Kenneth J. Robinson, ed. Genocide in Cambodia. Documents from the
trial of Pol Pot and Ieng Sary (Philadelphia: University of Pennsylvania Press, 2000).
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comparatively discuss the ECCC and the People’s Revolutionary Tribunal of 1979. This chapter will also strive to combine insights from the previous two chapters and use these insights to examine how history is used and produced in the courtroom by prosecutors, lawyers and judges, as well as outside the courtroom, by the Cambodian government intervening with some of the court proceedings. What kind of history is being written in the ECCC, in what ways and why? Why does the government believe it necessary to interfere with the court proceedings and what does this mean for the historical account produced by the court?
The three sub-questions, together with the corresponding chapters, will provide an answer to how history, politics and justice have interacted and influenced each other in the ECCC and to what extent this affected the court proceedings and the search for justice and truth.
Methodology and sources
To provide an overview of what transitional justice can enhance and what kind of mechanisms it can deploy, the first chapter will start with literature focussing on the broader meaning of transitional justice as well as more specific cases.22 International law specialist
Alberto Costi has argued that hybrid tribunals, like the ECCC, can be a viable alternative to fully international tribunals.23 Hybrid tribunals are a combination of both domestic and
international law and operate with the cooperation of both national and international personnel.24 Describing possible advantages and weaknesses of such tribunals will in the third chapter help assess what the position of the ECCC is amidst other (hybrid) tribunals.
The first chapter will further draw upon literature on the relation between justice and history. American law and anthropology professor Richard Ashby Wilson argued that
22 Ruti Teitel, “Transitional Justice Genealogy”; Juan E. Mendez, “Accountability for Past Abuses,” Human
Rights Quarterly 19 No. 2 (May, 1997), 255-282; Alexandra De Brito ed. The Politics of Memory (Oxford:
Oxford University Press, 2001); Laura A. Dickinson, “The Promise of Hybrid Courts,” American Journal of
International Law 97 no. 2 (2003) 295-310; Sarah Williams, “Hybrid Tribunals: A Time for Reflection,” International Journal of Transitional Justice 10 (2016). 538-547.
23 Alberto Costi, “Hybrid Tribunals as a Valid Alternatie to International Tribunals for the Prosecution of
International Crimes” 3rd Annual Victoria University Symposium on Human Rights, Wellington, 2005.
24 Tribunals of this sort are hybrid because ‘both the institutional apparatus and the applicable law consists of a
blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards.’ Laura Dickinson, “The Promise of Hybrid Courts,” American Journal of International Law 97 (2003) 295-310, 295.
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international criminal trials frequently produce mediocre historical accounts.25 International
criminal trials are also sometimes expected to write historical accounts, while history and law are disciplines that have different methods and values.26 In places where they overlap, such as in international criminal tribunals, there tends to be friction in regards to how, with what goals and by whom history is used. The understanding of the use of historical narratives in international criminal trials is also one of the central topics of historian Thijs Bouwknegt’s dissertation Cross-Examining the Past: Transitional Justice, Mass Atrocitiy Trials and
History in Africa.27 His analyses of the use of historical narratives in international criminal
trials and how to approach the trials and their records as historical sources will contribute to a better understanding of the Cambodian case.
The second chapter focuses on the history of Cambodia and thus will be more historiographical in character. To give an overview of Cambodian history, the works of historians like Ben Kiernan and David Chandler, both experts on Cambodian history, will be used.28 They have written extensively not only on the Democratic Kampuchea period, but also on the periods before and after. For the recent political history of Cambodia this thesis will also rely on Sebastian Strangio´s biography of Hun Sen, who has been the country’s prime minister for over 30 years and who was also a member of the Khmer Rouge.29
Genocide in Cambodia, a collection of source material and memories from the People’s
Revolutionary tribunal of 1979, will be utilized to assess the meaning of the tribunal as a response to the atrocities of Democratic Kampuchea.30
The third chapter will start with the story of the establishment of the tribunal. The aim is to explain the acts of the international community, the United Nations and the Cambodian government on the long and difficult path that led to the eventual establishment of the ECCC.31 David Scheffer, the first United States Ambassador-at-Large for War Crimes Issues, now serves as the U.N. Special Expert to advise on the United Nations Assistance to the
25 Richard Wilson, Writing History, 1. 26 Richard Wilson, Writing History, 6, 8, 16. 27 Thijs Bouwknegt, Cross-examining the Past.
28 For example: Kiernan, The Pol Pot Regime; Chandler, A History of Cambodia.
29 Sebastian Strangio, Hun Sen’s Cambodia (New Haven; London: Yale University Press, 2014); Human Rights
Watch published a report on Hun Sen’s role in Cambodian politics of the last three decades. Human Rights Watch, “30 Years of Hun Sen”.
30 Howard J. De Nike, John Quigley, and Kenneth J. Robinson, ed. Genocide in Cambodia.
31 Helen Jarvis, “Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide,” The
Extraordinary Chambers in the Courts, ed. Simon M. Meisenberg and Ignaz Stegmiller (The Hague: Asser
Press, 2016) 13-44; Kelly Witley, “History of the Khmer Rouge Tribunal: Origins, Negotiations, and Establishment,” The Khmer Rouge Tribunal, ed. John D. Ciorciari (Documentation Centre of Cambodia, 2006); Strangio, Hun Sen’s Cambodia.
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Khmer Rouge Trials.32 He told the story of the establishment of the ECCC and his personal
experiences with founding international tribunals in his book All the Missing Souls and thus gives an impression of the side of the international community in the establishment. This point of view is crucial to explain the outcome of the negotiations, the functioning of the tribunal and the accusations of political interference. The agreements between the government, the United Nations and the laws adopted by the Cambodian government and by the ECCC itself will be used to give an overview of the structure of the tribunal.33
To examine the relation between justice, history and politics within the ECCC a number of critics and defenders of the tribunal will be discussed. The Open Society Justice Initiative has published a highly critical report on the alleged political interference in the ECCC, although the report itself has been criticised as well.34 Lastly, what has been happening and is still happening in the courtroom will be discussed. How do the national and international judges, lawyers and prosecutors invoke historical accounts in the courtroom and what does this tell us about the court, Cambodian politics and Cambodian history? For this purpose, court documents from the ECCC, all available from the ECCC website in three languages (Khmer, English and French), will be discussed.35
As stated above, little attention has been given to the ECCC on the level of interaction between history, justice and politics. This thesis tries to fill this gap by discussing this interplay and explaining how this works in the ECCC. Hereby it tries to add to the literature on this topic within the field of transitional justice. In so doing, I will be completely dependent on source material that is available either in the English or the Dutch language. Consequently, I will not be discussing sources that are written in any other language, such as French or Khmer, that may be relevant to this topic and research, due to language limitations.
32 David Scheffer, All the Missing Souls.
33 ECCC, “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia.” 34 OSJI, “Political Interference”.
Della Sentiles, “Political Interference at the ECCC?”, (Documentation Centre of Cambodia)
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Chapter 1: Transitional Justice and the writing of history in international criminal trials
Introduction
Human history is filled with violent episodes and the 20th century was certainly no exception to this rule.36 On the contrary, some of the most systematic violent campaigns against national, ethnical, racial, religious, political or other groups took place in the last century.37 After periods of war, civil war and conflict, societies try to adjust to living with the memory of mass violence. There is a wide variety of reactions to episodes of mass violence, depending on who is in power and what is chosen by them as the preferred way to deal with them.38 Transitional justice has been briefly defined in the introduction of this thesis. It is a field with a large and expanding body of research and literature. This chapter will discuss some of the transitional justice mechanisms that can be deployed. Furthermore, the way in which international criminal courts like the ECCC relate to the writing of the history of their jurisdictional periods will be examined.
1.1 The age of Transitional Justice
There are many ways to deal with a violent past. Almost every conflict requires a different approach and different measures to be taken. Yet there are some broad categorizations that can be made. One of the most well-known reactions to mass violence in a post-conflict society is prosecution: a court determines who the perpetrators of crimes are, judge them and sentence them. Below, I will discuss courts more in detail.
There are, however, many more transitional justice mechanisms which can be deployed. Historian Alexandra de Brito lists ‘amnesties, trials or purges, through the establishment of truth commissions, by financial compensation, and with symbolic gestures such as the building of monuments or the proclamation of commemorative days of
36 Norman M Naimark, Genocide. A world history (New York: Oxford University Press, 2017); Ben Kiernan,
Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New Haven: Yale
University Press, 2007).
37 Eric D. Weitz, A Century of Genocide. Utopias of Race and Nation (Princeton: Princeton University Press,
2003).
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remembering.’39 Objectives of these mechanisms include the establishment of a lasting peace,
national reconciliation, addressing the past in terms of what happened and bring those responsible for grave crimes to justice.
Another way to deal with the legacy of mass violence is to do nothing at all. It may not be referred to as a mechanism, but letting the past be the past is a way to react to past wrongs as well. This may be an intuitive and logical approach, as people of different groups have to live together again after a conflict occurred. But it is also dangerous: when a society opts for this approach and nothing is done to address the past, the risk is amnesia, impunity and a repetition of past violence.
Each society is different. A post-conflict society is not necessarily a post-repressive society.40 What works in one country, may not work in another. Each of these transitional justice mechanisms have different objectives, focusses, advantages and disadvantages. Thus, some of them suit varying situations differently. One could also turn this around and say that every post-conflict society needs a unique set of transitional justice mechanisms that suits the particular conflict and the particular society.
It is believed that tribunals are linked to some of the primary transitional justice objectives such as justice, reconciliation and going against impunity. Thereby they address the wrongs of the past. Tribunals are central in most transitional justice conceptions and can take different shapes and forms. The next section, therefore, is devoted to the different shapes such tribunals can take, each with their advantages and disadvantages.
1.2 Tribunals
Since the Second World War an international component was often added to justice to address the violent past. The “age of transitional justice” begins for many with the International Military Tribunals (IMTS) in Nuremberg and Tokyo (in Nuremberg from 1945 until 1946 and in Tokyo from 1946 until 1948).41 These tribunals judged the crimes against peace, war crimes and crimes against humanity committed by Japan and Germany in the
39 De Brito, Politics of Memory, 1.
40 Nanci Adler, “Introduction,” Understanding the Age of Transitional Justice, ed. Nanci Adler (Rutgers
University Press, 2018).
41 De Brito, Politics of Memory.
Teitel, “Transitional Justice Genealogy.” Alberto Costi, “Hybrid Tribunals.”
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Second World War. Alberto Costi has called this the first generation of post-conflict justice.42
In this period, the notions of international crimes and individual responsibility for them, as well as the notions of crimes against humanity and genocide originated.43
Shortly after the end of the Cold War, international criminal tribunals followed some of the gravest episodes of mass violence in the 20th century. The mass violence in the former Yugoslavia was followed by the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, The Netherlands, in 1993. The mass violence committed against Tutsi’s and moderate Hutu by the Hutu government and connected organizations was followed by the establishment of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, in 1994.44 Both ad hoc tribunals were established by resolutions of the United Nations (UN) Security Council.45
The third generation of post-conflict justice started with the creation of the International Criminal Court (ICC) in 1998. The court is located in The Hague, The Netherlands and became functional on 1 July 2002. The ICC’s jurisdiction states that individuals can only be prosecuted for crimes committed on or after this date. Furthermore, individuals can only be prosecuted if either territorial or personal jurisdiction exists. The ICC prosecutes crimes against humanity, genocide, war crimes, and crimes of aggression. This permanent criminal tribunal is pursuant to the Rome Statute, which states ‘the most serious crimes of concern to the international community as a whole must not go unpunished[…].’46
The common feature linking all of these trials is their international nature. They are located in a different country to where the atrocities took place. These atrocities are judged by international personnel under international law. According to Costi, they have ‘made a useful contribution to international criminal law and strengthened international humanitarian law.’47
The international aspect of these tribunals creates a sense of remoteness, both literally and figuratively. Because international courts are located in different countries to where the atrocities took place, there exists a possibility of the deprivation of involvement of the
42 Costi, “Hybrid Tribunals,” 3. 43 Costi, “Hybrid Tribunals,” 4. 44 Costi, “Hybrid Tribunals,” 1.
45 UN Security Council, Resolution 827 (25 May 1993); available at
http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf ; UN Security Council, Resolution 955 (8 November 1994). Available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf?OpenElement
46 Rome Statute of the International Criminal Court, 17 July 1998, 1. Available at
https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
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victim’s families in involvements.48 Furthermore, the costs of these international tribunals
have raised eyebrows.49 Moreover, ethnic groups in both former Yugoslavia and Rwanda
have viewed the tribunals as tools for ethnic persecution rather than prosecution. They fear that only one party is blamed in these far-away institutions and thus fear a form of victor’s justice. The Nuremberg trials and the ICTR, for example, have been accused of victor’s justice. In addition, international tribunals have a very limited contribution to domestic capacity-building of the judiciary, which could be important in rebuilding trust and maintaining peace in a post-conflict society, since in these kind of societies the judicial infrastructure is often weakened or damaged.50
Could domestic trials be a solution for these criticisms? For one part, they could. Since they take place on the same soil and under domestic law, the post-conflict society is less likely to have a feeling of remoteness towards the tribunal. Victim participation, for example, is much easier. Costs can be kept down, for the simple reason they are less complex institutions than international ones. However, domestic trials, too, are susceptible to accusations of victor’s justice. Furthermore, in post-conflict societies the judiciary infrastructure has been destroyed or severely weakened, creating the opportunity for show trials that are more an expression of revenge and victor’s justice than one of respect for a fair trial. Although this, too, is a form of transitional justice, the idea of an unfair trial could spark feelings of discontent and vengefulness, which could eventually lead to conflict again.
A cross-over between international and domestic trials are the so-called hybrid tribunals.51 Hybrid courts combine components of national and international tribunals in a variety of ways: ‘both the institutional apparatus and the applicable law consist of a blend of the international and the domestic.’52 Another way to describe these courts is
internationalised criminal courts. They usually take place in the same country in which the crimes were committed and the law is often a blend between domestic and international. Examples include the Special Court for Sierra Leone (SCSL), the East Timor Tribunal, and the Extraordinary Chambers in the Courts of Cambodia (ECCC).53 An international
48 Ibid.
49 Ibid.
50 Costi, “Hybrid Tribunals,” 14-15.
51 Costi, “Hybrid Tribunals,” 1; Dickinson, “The Promise of Hybrid Courts.” 52 Dickinson, “The Promise of Hybrid Courts,” 295.
53 Sarah Williams, “Hybrid Tribunals: A Time for Reflection,” International Journal of Transitional Justice 10
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characteristic that these tribunals share with the ICTY and ICTR is that they are ‘ad hoc, non-permanent solutions in response to a specific incident or situation.’54
In theory, this hybrid construction can combine the advantages of national and international prosecution: advantages include that hybrid courts are ‘allowing interaction with the national legal system which would facilitate the transfer of international criminal justice norms to the national legal system; building capacity at the domestic level through the appointment of national personnel and judges; and relying on international personnel to protect the mechanism from domestic challenges, including political interference.’55 It could
also serve to ‘avoid the isolation of international bodies from the affected population and generate greater local ‘ownership’ of the mechanism and its processes, while avoiding the expense and delays of the international model.56’
However, whilst there are potentially many advantages, there are also dangers. International parties like the UN may impose an unwanted set standards that do not apply to the community in question. The other way around, too much influence on the domestic side may allow for national political interference, corruption and trials that are not along the standards of the international community. Thus, in every situation the interests of different parties are considered. However, negotiations for this kind of tribunals could result in the abuse of transitional justice mechanisms. With the abuse of transitional justice mechanisms I am referring to their use for a different purpose than they were intended to be used for (according to the agreement between the parties). They could, for example, be used to legitimate corrupt power.
Thus far, only tribunals have been discussed as a way of coming to terms with the past, acknowledging the crimes and bringing those responsible to justice. However, there are other options as well. Indeed, it has been argued that retributive justice alone cannot be the sole solution to the aftermath of a conflict.57 One of the most well known forms of restorative justice is a Truth and Reconciliation Commission, with the prominent example being South-Africa. Some claim that a TRC has certain advantages over criminal trials: they might have a better chance of establishing the truth about a certain period and a broader range of accounts of what happened. In the case of Sierra Leone, the SCSL was complemented by a TRC and in
54 Williams, “Hybrid Tribunals,” 539. 55 Williams, “Hybrid Tribunals,” 538. 56 Ibid.
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so doing shielded former child soldiers from prosecution.58 They can thus also be an addition
to criminal tribunals.
Politics play a large role in the pursuit of transitional justice. Both internationally and nationally, there needs to be a willingness to deal with the past. For example, the end of the Cold War opened a world of possibilities to international politics that allowed for the establishment of the ICTR and ICTY. Sometimes, there is simply not a possibility to pursue justice in a post-conflict society, for example caused by national or international unwillingness. This is why there is a ‘close relationship between the type of justice pursued and the relevant limiting political conditions.’59
1.3 International Criminal Trials and the Writing of History
Tribunals, as a mechanism of transitional justice, have been labeled as retributive justice. They deal with the past in a judicial manner, enquiring, judging and eventually sentencing crimes. Although it is usually not part of the statute of international criminal trials, these trials contribute to a broader understanding of past events. Sometimes international criminal trials are even expected to make us understand better what happened. With pursuing justice, tribunals also pursue fact-finding and truth-finding. Hereby they contribute to the narrative on the period over which the tribunal has jurisdiction. However, international criminal trials not only produce historical narratives, the parties in the courtroom also use historical narratives to support their claims. Prosecutors may invoke certain historical accounts, while defense lawyers invoke others. Thus, one could rightfully as the question ‘whether courts ought to write a historical narrative of an armed conflict at all.’60
This is one of the central questions in Richard Wilsons’ Writing History in
International Criminal Tribunals. There are serious reasons to doubt the ability of courts to
produce historical accounts. Generally, they produce poor historical accounts of the origins and causes of mass crimes.61 However, ‘at the same time historical debates in international trials have provided important insights into the underlying factors of an armed conflict.’62
58 Costi, “Hybrid Tribunals,” 9. 59 Teitel, “Transitional Justice,” 69. 60 Wilson, Writing History, x. 61 Wilson, Writing History, 1. 62 Wilson, Writing History, 1.
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Still, there is a friction between individual accountability and the production of a clear narrative of atrocities for the history books.
Why, indeed, should courts attempt to write history at all? Is it not the primary objective of any trial to first determine whether the alleged crimes occurred, and, second, whether the defendant can be held accountable?63 One answer is that there is something that we could call the necessity of history in courtrooms: international criminal trials are in need of some historical context in order to explain how so many people were killed.64 The courtroom, however, is not a room for objective inquiries. Historical evidence may be presented by prosecutors or lawyers and thus be instrumentalised: the evidence serves a certain goal, to be either inculpatory or exculpatory. However, it can be hard to know the goal of the presenter of the historical evidence. Therefore the questions of who introduces historical evidence, for what reasons, and with what consequences for the trial judgment all need to be answered. Prosecutors, lawyers and judges will all emphasise other aspects of history because they have different interests. In conclusion, history used in the courtroom should always be approached with caution.
One of the most important aims of transitional justice is truth-seeking and fact-finding. For trials this is necessary to determine whether someone is guilty. For a post-conflict society the discovery helps to paint a picture of what happened. What exactly took place? This truth-seeking happens in both courts and non-judicial ways. There has been a great deal of discussion on the role of courts in the truth-seeking process. This points to a difference between the disciplines of judges and historians. In his article on the topic, historian Antoon de Baets argues that historians primarily try to explain, whereas judges primarily try to judge and sentence.65 However, he also holds that historians also judge and judges also explain. The former happens when a historian classifies an event as genocide when this has not been proven in court. The latter happens when court members try to explain certain events to prove if a suspect was involved in the crimes that he/she is accused of.
Minimally, what international criminal courts do is retributive justice in the form of individual accountability for past crimes, thereby promoting reconciliation and preventing the recurrence of past crimes.66 Part of this is establishing facts about the regime that led the
63 Wilson, Writing History, 2. 64 Wilson, Writing History, 12-13.
65 Antoon de Baets. . “Na de genocide. Waarheidsstrategieën van rechters en historici.” Tijdschrift voor
Geschiedenis 116, no. 2 (2003): 212-230, 212.
66 Kheang Un, “The Khmer Rouge Tribunal: A Politically Compromised Search for Justice,” The Journal of
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violent campaign. The goal is to determine whether the alleged crimes occurred and whether the defendant can be held criminally responsible.67 However, sometimes this establishing of
facts is understood as or extended to learning about the regime’s motives: why did it all happen? When writing about the ECCC, Cambodian researcher Kheang Un states: ‘one of the often overlooked benefits of the Tribunal is to provide a historical account of the facts and motives surrounding the Khmer Rouge regime.’68 About how the tribunal’s findings would
translate into a historical account he remains silent. Similarly, Ben Kiernan states that ‘a legal accounting of the crimes of the Khmer Rouge era cannot restore to Cambodians their lost loved ones, but it could give them back their history’.69 Again, the assumption and expectation presented here is that legal accounting for past crimes by means of a tribunal can produce history.
But why focus on writing history and using historical context in court at all? Is it not the primary purpose of tribunals to be ‘investigating, charging, prosecuting, judging and sentencing’ of individuals for the involvement in mass human rights violations? 70 This
strongly depends on the nature of the crime. International tribunals deal with grave human rights violations such as genocide, crimes against humanity and war crimes. These crimes are collective in nature and thus the individual acts need to be situated within long-term, systematic policies to prove them. The nature of the crime thus forces the court to interpret the period of time of which it has jurisdiction. In the following paragraphs, I will define these crimes in accordance to international law.
On the Convention on the Prevention and Punishment of the Crime of Genocide, genocide was defined 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: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’ This definition applies to international law and all international tribunals.71
67 Wilson, Writing History, 3.
68 Kheang Un, “Khmer Rouge Tribunal,” 789. 69 Kiernan, “Coming to Terms With the Past,” 18. 70 Bouwknegt, Cross-examining the Past.
71 The ICC statute is available at
https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf;
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Crimes against humanity is defined in international law as ‘any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.’ Like the definition of the crime of genocide, the definition of crimes against humanity is the same in international law.
Lastly, the definition of war crimes in accordance to international law is very long. It will suffice here to reduce the definition to ‘Grave breaches of the Geneva Conventions of 12 August 1949’, containing the acts of ‘Wilful killing, torture or inhuman treatment, wilfully causing great suffering, or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.’72
However, history is not only used in the courtroom. International criminal trials can also be said to produce history. This is done through the interpretations of history by the various courtroom parties. Here, domestic and international politics can also play a role. transitional justice mechanisms, as argued by Bouwknegt, ‘can also be ignored, deficiently executed or managed, neglected, misplaced or utilised by political agents.’ Such abuse of transitional justice mechanisms influences the narrative that the court uses and produces, often for the worse.
Courts can produce one-sided and warped accounts of history, but they can also be undoubtedly helpful when it comes to fact-finding. International war crimes tribunals often make use of historical context to explain a certain trend or broader development. They also
The ICTR statute is available at http://legal.un.org/avl/pdf/ha/ictr_EF.pdf
72 The definition of war crimes according to the Rome Statute is available at
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contribute to our understanding of the past events and also use and produce history. The ECCC is no exception to this. Although the events that happened before and after of the Khmer Rouge period (17 April 1975 to 7 January 1979) do not fall within the jurisdiction of the tribunal, these events are subject to investigation by the prosecutors, lawyers and judges of the ECCC. They matter to explain and judge the role of individuals in the jurisdictional period. These events are believed to help define the pattern of crimes that has to be proved to prove crimes against humanity and other mass crimes. The next chapter, therefore, will be concerned with the recent history of Cambodia.
Concluding remarks
Post-conflict societies deal with the legacy of conflict and mass violence in various ways. The above summarized some of the measures that can be deployed, of which tribunals are perhaps the most well-known. All forms of tribunals can have major flaws. Transitional Justice measures can be used and abused. Tribunals can be used to pursue political goals. This is perhaps most obvious in cases where the tribunals take place on the soil where the conflict and mass violence happened. For the successful deployment of transitional justice mechanisms, including tribunals, national and international politics musty firstly be considered.
Furthermore, I evaluated history and justice. International criminal courts judge and sentence individuals by holding them accountable for past wrongs. In so doing, they also contribute to our understanding of these past events. It is important, however, that courts not only produce history, they also use it in court. Therefore it is important to keep in mind who uses history in the courtroom and for what purposes.
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Introduction
In the previous chapter, transitional justice and (hybrid) tribunals were discussed. In order to assess the crimes judged by the ECCC, it is necessary to evaluate how contemporary Cambodian history has developed. What gave rise to the Khmer Rouge movement and their eventual reign from 17 April 1975 until 7 January 1979? What were its goals and what was its ideology? Who has been in power since and what has been done to address the atrocities of different parts of Cambodian history until the establishment of the ECCC, in particular the atrocities under the Khmer Rouge regime? In other words: how was the course of Cambodian history and how has it been dealt with? What role have international and national politics played in this? An analysis of the ECCC requires a minimum of background information on Cambodia’s history and politics.
2.1 French Indochina, Independence and the Lon Nol Coup
A relevant starting point is French rule in Cambodia, for it greatly influenced the leadership, ideology and movement of the Khmer Rouge. Initially established as a protectorate in 1887, French influence gradually increased until Cambodia resembled more of a colony. The French protectorate, called French Indochina, further consisted of the modern-day Laos and Vietnam. With the start of World War II and the invasion of France by Nazi Germany, French control over French Indochina weakened. In 1941, the colonial government appointed a young prince named Norodom Sihanouk to become the next king. He became a highly influential figure throughout Cambodia’s history.
In 1945, towards the end of the Second World War, Japan invaded Cambodia. The Japanese forces failed to consolidate power and soon retreated, but this short deviation left Cambodians longing for independence.73 After the war, France regained control over the area.74 However, the Indochinese Communist Party (ICP) with its leader Ho Chi Minh began a struggle for independence directly following the conclusion of the war.75 Norodom
73 Chandler, History of Cambodia, 164-165. 74 Ibid, 173.
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Sihanouk took matters into his own hands and took power with a peaceful coup in 1953.76
After negotiations with the French, he achieved independence for the Kingdom of Cambodia on 9 November of the same year.77
In 1955 Sihanouk abdicated from the throne to fully concentrate on politics.78 The prince built up an educational system, Phnom Penh became a modern capital and under his reign the small agrarian economy of Cambodia expanded.79 However, there were major inequalities of power and wealth in Cambodia. There was no tradition of power sharing or democratic elections, and ‘Sihanouk’s modernized absolutism left little room for dissent.’80
This made the maintenance of democratic principles difficult. Opposition in the form of communism, however, soon entrenched the country. Inspired by their Vietnamese neighbours and fellow communists, the Cambodian communists founded their own communist party: the Communist Party of Kampuchea (CPK). Although the Samlaut uprising of 1967, organised by the communists, was put down by brutal force, this did not deter Cambodians from joining the party. Fuelled by dissatisfaction at their country’s vast inequalities, the communist movement continued to attract new members.81 As they were persecuted by the Sihanouk government, many of the communists fled to jungle camps under Vietnamese protection.82 In 1963, Sihanouk for the first time used a nickname for the Cambodian communists that would stick with them until the present day: the Khmer Rouge.83
Meanwhile, the Vietnam war between the USA and Vietnam had further escalated and destabilised Cambodia. While it had started in 1965, in 1969 the bombing of Vietnamese targets on Cambodian soil intensified. The bombing was aimed at ousting the Vietnamese communists that were hiding in the Cambodian jungle, driving them back into Vietnam. The decision of American president Richard Nixon and his foreign minister Henry Kissinger to continue with the bombing of Cambodia proved crucial in the destabilisation of Cambodia. It killed tens of thousands of Cambodians and displaced many more. Moreover, the American B-52’s drove thousands in the arms of the communists. The bombing would continue until
76 Ibid, 184-185.
77 Chandler, History of Cambodia, 186; Strangio, Hun Sen’s Cambodia, 8. 78 Strangio, Hun Sen’s Cambodia, 8.
79 Ibid. 80 Ibid, 9. 81 Ibid, 10. 82 Ibid, 9.
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1973.84 The communists’ ideology consequently became more anti-western, anti-imperial and
anti-colonial.
In 1970, the political situation in Cambodia deteriorated further with the coup led by Sihanouk’s general, Lon Nol. Earlier, the democratically chosen assembly had voted Sihanouk out of office.85 Lon Nol seized power and installed the pro-US Khmer Republic when Sihanouk was abroad. In reaction, Sihanouk set up a resistance front with his former communist enemies, the Khmer Rouge.86 In reaction to his call on 23 March 1970 for the people of Cambodia to rise up against Lon Nol, thousands joined the Khmer Rouge and its armed forces. A civil war ensued and slowly the communists seized power of large parts of the Cambodian countryside.87 The Khmer Rouge connected the American bombings with the US-backed Khmer Republic, blaming Lon Nol for the bombings, thus creating another reason to join the communist forces.88
Meanwhile, Lon Nol led an anti-communist and anti-Vietnamese government. By 1974, the Khmer Rouge was in control of 75% of Cambodia.89 At this point, a part of the Khmer Rouge broke with the Vietnamese communists and became suspicious of them. This faction later became dominant in the party.90 Meanwhile, the Khmer Republic faced inflation, currency devaluation and food shortages and was slowly collapsing through the civil war. When the bombings of the US stopped, so did the aid for the Republic, making it increasingly vulnerable. On 17 April 1975, Phnom Penh fell to the Khmer Rouge.91
84 The bombing campaign consisted of 2.7 million bombs dropped between 1969 and 1973. Strangio, Hun Sen’s
Cambodia, 11.
85 Chandler, History of Cambodia, 191. 86 Strangio, Hun Sen’s Cambodia, 10. 87 Ibid, 12.
88 Alexander Hinton, Why Did They Kill? Cambodia in the Shadow of Genocide (California, 2005), 7-8. 89 Strangio, Hun Sen’s Cambodia, 12.
90 Ibid. 91 Ibid, 14.
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Map showing the bombing of Cambodia. The yellow line indicates Cambodia’s borders (with in the north Thailand and Laos and in the east Vietnam). The purple dots indicate the bombs.92
2.2 Democratic Kampuchea
After the takeover by the Khmer Rouge, the Khmer Republic was renamed into Democratic Kampuchea (DK). The first act of the Khmer Rouge was to evacuate the cities, starting with Phnom Penh.93 The evacuated people, marked as “new people”, were put to work in the countryside.94 These new people represented the ‘parasitic’ urban culture spawned by US imperialism.95 Sihanouk returned in September 1975 but was immediately cast aside. He resigned in April 1976 and was imprisoned in the Royal Palace in Phnom Penh for the rest of the Democratic Kampuchea period.96 One of the legacies of Sihanouk’s rule was the aid Cambodia received from China throughout the reign of Democratic Kampuchea.97
During the Khmer Rouge reign, a radical agrarian communism was implemented. After they forcibly emptied Cambodia’s towns and cities, the Khmer Rouge abolished ‘money, schools, private property, law courts, and markets, forbade religious practices, and
92https://gsp.yale.edu/sites/default/files/images/CGP_maplicity.gif 93 Strangio, Hun Sen’s Cambodia, 15; Chandler, History of Cambodia, 210. 94 Chandler, History of Cambodia, 211.
95 Strangio, Hun Sen’s Cambodia, 15. 96 Ibid.
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set almost everybody to work in the countryside growing food’.98 Hostile towards the former
regime, the Khmer Rouge ordered the executions of former Lon Nol government officials and soldiers.99 The Khmer Rouge decimated institutions, like the judiciary.100 Cambodia was cut off from the rest of the world, in the hopes of becoming a fully self-sufficient economy.101 This radical restructuring of society at a rapid pace, in combination with the forced deportations and the ideal of a perfectly egalitarian country, were deadly. The largest percentage of deaths in Democratic Kampuchea did not originate from executions, but rather from malnutrition, starvation and illness as a result of the lack of a sustainable and nutritious food source.
Exact estimates on the number of deaths that the policies of Democratic Kampuchea resulted in vary. These are deaths as a direct result of Khmer Rouge policies and actions. Leading specialists David Chandler and Ben Kiernan both estimate that 1.7 million Cambodians died as a result of malnutrition, starvation, illnesses, internal purges and killings.102 In earlier works, however, Kiernan and Chandler were both more conservative with their estimates.103 The number of 1.7 million, however, has been widely quoted and accepted, including by the ECCC.104 Interestingly enough, however, the booklet that is handed out when visiting the tribunal speaks about 3 million deaths under Khmer Rouge rule.105 While not specifying the causes of these deaths, the text implies that the Khmer
Rouge was responsible for these deaths. However, this number is so high that it has never been mentioned or supported by any research.
Another interesting aspect of the Khmer Rouge regime was its attitude towards minorities. Vietnamese and Chinese minorities, as well as the Muslim Cham minority, had to work harder on the land than ethnic Khmers, and often were persecuted. This was an ethnic component of Khmer Rouge policy: they aimed at establishing a pure Khmer people, without other ethnic or racial influences or components.
98 Chandler, S-21, vii.
99 Strangio, Hun Sen’s Cambodia, 15. 100 Ibid.; OSJI, “Political Interference,” 3. 101 Chandler, S-21, preface.
102 Chandler S-21, preface; Kiernan, Pol Pot Regime.
103 Ben Kiernan, “Introduction” in Genocide and Democracy in Cambodia, ed. Ben Kiernan (New Haven,
1993), 13; Chandler, Tragedy of Cambodian History, 212.
104 Strangio, Hun Sen’s Cambodia, x; Meisenberg and Stegmiller ed., Extraordinary Chambers, 2; Duch in:
Thierry Cruvellier, The Master of Confessions. The Making of a Khmer Rouge Torturer (Harper Collins 2014), 1; ECCC, “Introduction to the ECCC.” Available at https://www.eccc.gov.kh/en/introduction-eccc
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For most Cambodians, the DK leadership remained a mystery for the first year of their reign, for some even longer. Salot Sar, who later took the alias Pol Pot, had been the Party Secretary of the Khmer Rouge since 1963. He was the leader of the Central Committee, the organ of top leaders of Democratic Kampuchea, and thus known as Brother Number One. Other important members of this committee were Nuon Chea (known as Brother Number Two), the chef ideologue of the party, Khieu Samphan (head of state) and Ieng Sary (minister of foreign affairs). The latter three would later stand trial before the ECCC.
From the start, the regime was paranoid and secretive, constantly looking for conspiracies within their own ranks. This paranoia resulted in internal purges: the persecution of ‘microbes’ within the part of in the country that were aimed at counterrevolutionary practices.106 The paranoia further resulted in a nationwide security network overseen by Son Sen, a member of the Central Committee of the Party. Its most infamous institution was the security prison S-21, also known as Tuol Sleng, in Phnom Penh. During its operational period, the prison held more than 14,000 prisoners, of which only a handful survived.107 The majority of the executions of prisoners took place at Choeung Ek, an execution site on the outskirts of Phnom Penh.108 The prison was run by Kaing Guek Eav, alias Duch, who would later stand trial before the ECCC.109 Security centres like these were established throughout
the whole country, creating the infamous killing fields, as they are more commonly known today. However, a lot of people were executed at the killing fields without ever having been to one of these centres. At least 200.000 of the estimated 1.7 million deaths were from executions.110
2.3 The People’s Republic of Kampuchea
On Christmas Day 1978, Vietnam launched a large-scale invasion of Cambodia, with in their ranks Cambodians who defected to the Khmer Rouge and fled to Vietnam during Democratic
106 Chandler, History of Cambodia, 218-219.
107 David P. Chandler, Voices from S-21. Terror and History in Pol Pot’s Secret Prison. California, 1999.
The number of victims officially determined by the ECCC is 12,272. ECCC, Summary of Appeal Judgement in
Case 001 (3 February 2012). Available at
https://www.eccc.gov.kh/sites/default/files/documents/courtdoc/03022012Summary-Eng.pdf Strangio, Hun Sen’s Cambodia, 16.
108 Chandler, S-21, 8. 109 Ibid, 17.
