Human Rights Dialogue (1994–2005): Series 1, Number 8 (Spring 1997): Transitional Justice in East Asia and its Impact on Human Rights: Articles: Human Rights and the Cambodian Past: In Defense of Peace Before Justice

Mar 5, 1997

During their 1975-79 rule over Cambodia, the government of Democratic Kampuchea (DK), popularly known as the Khmer Rouge, committed some of the worst human rights violations in history. One million Cambodians, one-sixth of the population, died. The Khmer Rouge s crimes call out for justice.

Yet the current Cambodian government, democratically elected in 1993, has not sought to punish the Khmer Rouge. Rather, it has amnestied thousands of Khmer Rouge under a 1994 law. Many former Khmer Rouge have even received special benefits from the government such as housing, land, and military rank in the Royal Cambodian Armed Forces. The law excluded amnesty for the leadership of Democratic Kampuchea but the government requested and got a royal pardon for Ieng Sary, one of the most notorious Khmer Rouge and their former deputy prime minister and foreign minister. Why has the Cambodian government taken a "soft" approach to justice for the perpetrators of the Cambodian genocide?

The current government was born of an international peace process intended to reconcile the warring factions, including the Khmer Rouge. During the negotiations of the Paris Peace Agreements on Cambodia, Vietnam and the Vietnamese-backed Phnom Penh regime, then ruling Cambodia, made various proposals that Khmer Rouge offenses be specifically mentioned in the Agreements and that they include provisions for the Khmer Rouge leaders to be brought to justice for their crimes. But the other negotiating parties proceeded from the assumption that the participation of the Khmer Rouge and their Chinese patrons in the agreement was essential to its success, and that these two parties would not accept any punitive provisions or derogatory references.

It is not surprising that, in the end, the Paris Peace Accords made no mention of the Cambodian genocide, nor did they give the UN Transitional Authority in Cambodia (UNTAC) a mandate to investigate or punish past Khmer Rouge crimes. References in the Paris Agreements to "Cambodia s tragic recent history" and a provision obliging Cambodia to "take effective measures to ensure that the policies and practices of the past shall never be allowed to return" indicate that the drafters were not oblivious of Khmer Rouge crimes, but the focus was clearly on the future, not the past.

Even today, the international community is far from united in urging Cambodia to come to grips with Khmer Rouge crimes. Amnesty International has consistently advocated bringing the Khmer Rouge to justice. Foreign governments are more ambivalent. Many are still guided by the principle of reconciling the warring factions. Others were perhaps uncomfortable with the Ieng Sary pardon, but were reluctant to second-guess the Cambodian government, which is burdened by the political tensions and the fragility of its democratic institutions.

The Cambodian government is also motivated by domestic as well as international factors to take a soft approach. It faces a continuing Khmer Rouge insurgency that it is unable to defeat on the battlefield. Moreover, the 1994 amnesty law has encouraged many Khmer Rouge to defect. Thousands more joined the government side with Ieng Sary in September 1996, bringing peace to the rebel heartland, where every year the government had conducted bloody, unsuccessful offensives. The remnant Khmer Rouge forces under Pol Pot have been gravely weakened.

There are other logistical and political constraints. It is physically impossible for the government to capture and bring those Khmer Rouge leders living in rebel-held corners of the country to trial. Another sensitive political constraint is the fact that more than a few current government officials are former Khmer Rouge, who became part of the People s Republic of Kampuchea regime after the Vietnamese army ousted the Khmer Rouge government. Any thorough inquiry would have to examine these officials roles during Democratic Kampuchea, something the government would doubtless prefer to avoid.

Surprisingly, in spite of all the suffering the Cambodian people have had to endure, Cambodia lacks a popular movement to demand punishment for Khmer Rouge atrocities. The public has not only acquiesced, but it even supports the government s amnesties. A survey by a local nongovernmental organization, the Solidarity and Community Development Association (SODECO), published in the January 28, 1997 Cambodia Daily, reported two-thirds of the 1,120 respondents "satisfied" with the deal made with Ieng Sary, and a Phnom Penh Post street poll published in the August 23–September 5, 1996 edition had similar results. (SODECO is close to opposition leader Sam Rainsy.)

Generally, foreign organizations and individuals, as well as Cambodians living abroad, have been more active than local Khmers in demanding legal action against Khmer Rouge crimes. Prime Minister Norodom Ranariddh did initially express reluctance about the Ieng Sary pardon, but later agreed to it. Amnesty for lower-level Khmer Rouge is not really controversial, although there is some resentment of the aforementioned benefits that defectors have received.

There are some vocal opponents of the Ieng Sary pardon and the strategy of "peace over justice" in Cambodia.1 Lao Mong Hay, executive director of the Khmer Institute of Democracy, for example, points out that the tense situation among Cambodian political factions can hardly be considered a stable peace. He also argues that without justice those in power cannot be trusted to govern responsibly. "What kind of a nation are we if we embrace our killers?" Lao asks. He worries that ordinary people, if they cannot get justice, will take revenge into their own hands. Therefore Lao wants to see an international tribunal to try human rights violators, an idea put forth by Parliament Member Son Chhay. Lao is also supportive of a suggestion by the UN secretary-general s special representative for human rights in Cambodia Thomas Hammarberg to form an independent truth commission to inquire into Khmer Rouge crimes.

Despite the activism of those like Lao Mong Hay and Son Chhay, popular acceptance of, or at least acquies-cence to, the government s soft approach appears to be prevailing at present. We propose several explanations for this. First, and most basic, the Cambodian people are sick of the wars that have dominated most of the last quarter-century. Peace is their first priority.

Second, pain has been diminished by the passage of time—eighteen years since the Khmer Rouge were cast out—and by the former government s (People s Republic of Kampuchea) symbolic measures: the trial in absentia of Pol Pot and Ieng Sary in 1979; constant public vilification of the Khmer Rouge; monuments built to Khmer Rouge victims; and the annual "Day of Rage" still observed to mark Khmer Rouge brutality.

Third, Cambodian culture and tradition foster public acquiescence. Strong and assertive participation in policy matters by ordinary citizens is not yet the norm. Emotional reserve is a hallmark of Cambodian culture. The Theravada Buddhism prevalent in the country teaches Khmers to avoid anger and feelings of revenge. Cambodians may tend not to demand temporal justice because of their Buddhist belief that Khmer Rouge criminals will inevitably be punished in the karmic sense in this life or the next. Moreover, formal justice isnot an article of faith in a country where the rule of law has been very weak.

What are the implications of Cambodia s soft approach to the genocide? Clearly, it is deeply painful that justice has not been done. International law suffers when genocide goes unpunished. Impunity is a poor precedent for the creation of genuine rule of law and human rights. However, building the rule of law and full democracy in Cambodia is a long and complex process of creating viable institutions and instilling the right values in officials and the citizenry. Justice in the case of the Khmer Rouge would be a good thing, but it would not ensure the success of Cambodian democracy.

On the positive side, the soft approach has produced real benefits. It has helped break the back of the Khmer Rouge resistance and saved the lives of many soldiers and civilians alike. This is a kind of human rights victory, too.

In sum, the Cambodian government s failure to bring the Khmer Rouge to justice reflects both pragmatic interests and political constraints. Viscerally, the pardon of Ieng Sary was difficult to take, but the reasons for it have been accepted by a citizenry that hungers for peace. In the end, the Cambodian government gave a local response to local circumstances: it did not act for the sake of general principles, nor for the satisfaction of the international community, but for its idea of the future of Cambodia. It was a choice of peace over justice.

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