The Khmer Rouge Trials and the Narcissism of Small Differences
After 19 years, $300 million and five convictions, the Khmer Rouge Tribunal is over.
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The Khmer Rouge Tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC), will hand down their final decision in the case of Khmer Rouge leader Khieu Samphan on September 22. The ninety-one-year-old appealed his convictions for genocide, crimes against humanity, and war crimes. Although there will be some legal pushing and shoving, none of it will impact Samphan’s life sentence, and he will die in prison. Worse, according to my Cambodian associate, he and the other Khmer Rouge leaders, tried or not, will be reincarnated as cockroaches.
Almost thirty years ago, my Nuremberg research led me to Cambodia quite naturally, because Cambodia had shattered the “never again” promise once and for all. The Khmer Rouge had committed the most brazen atrocities since the Third Reich. The Chinese-backed Maoists killed approximately two million of their own countrymen, 20% of Cambodia’s population in less than four years. There was overwhelming evidence that they had violated the Nuremberg Principles, the United Nations Charter, the laws of war, and even the UN Genocide Convention. During the decade after their regime’s collapse, the Khmer Rouge had been rescued by China, the United States, and Thailand. Pol Pot and the other leaders lived in freedom and still wielded considerable power. Genocide was carried out and the perpetrators were rewarded. By the early 1990s, I began to see Cambodia as the modern paradigm for the resolution of a genocidal conflict, and Germany/Nuremberg as the anomaly.
One afternoon, weeks after I successfully defended my Ph.D. dissertation in 1993, I ran into my professor, Nuremberg prosecutor Telford Taylor, at Columbia Law School.
I opened my briefcase and handed Taylor a notebook containing the Tuol Sleng photographs that Chris Riley, my old friend from high school, now working in Cambodia, had sent me. He took one glance and winced. “This is very bad.” While he knew that the Khmer Rouge had killed at least one million people, he didn’t know that Pol Pot and most of the regime’s leaders were alive and did not fear prosecution. The old lawyer just shook his head and sighed: “Politics.” Taylor had taught me not to try to divorce politics from international law and, above all, not to confuse what is, with what should be.
The eighty-five-year-old lawyer studied each image. He pointed to a young Khmer girl, probably not even ten years old and asked, “Why?” with incredulity.
I had heard that the photos had been taken to prove to Khmer Rouge leaders that their orders—to interrogate and eventually kill—were being followed. The little girl was probably an accused person’s child. At that time, the Khmer Rouge leaders did not fear prosecution and even challenged the authenticity of these photographs. I told my professor that I had been invited to Cambodia and wanted to look more closely into the question of Khmer Rouge war crimes. “Cambodia is not like postwar Germany, the levels of literacy and education are much lower,” I explained. Compounding this problem, the Khmer Rouge had killed most of the nation’s educated people. Taylor agreed that the original Tuol Sleng images were a vital empirical antidote to revisionism.
I wondered at the time, why had the world allowed the Khmer Rouge to get away with genocide? The Third Reich was then, but this was contemporary—the Khmer Rouge leaders were living freely in the countryside. These were my Hitlers, Ribbentrops, and Himmlers, and most were above the law. The Khmer Rouge’s leaders were blaming the atrocities on the Vietnamese. Political scientist Craig Etcheson offered the best analogy: “It is as if Himmler, Goebbels and Goering had all retired to Munich after World War II, spending the remainder of their lives publishing tracts asserting that no Jews were ever killed by the Nazis, and that any trouble the Jews might have had, they had deservedly brought upon themselves.”
Between 1992 and 1993, the UN occupied Cambodia. They imported 15,000 soldiers, 5,000 civilian advisors, and spent $3 billion to build democracy in a country that knew only monarchy, oligarchy and dictatorship. While the UN successfully repatriated hundreds of thousands of Cambodians living in Thai border camps and introduced modern ideas like party politics and human rights, they did not end the civil war and flatly refused to address the question of war crimes accountability.
After I first visited Cambodia in 1994, I believed that legitimate war crimes trials were beyond the limits of the possible and turned my attention to historical accountability with the goal of creating an empirical historical record of the crimes of the Khmer Rouge. Between 1994-1997, I worked with different NGOs and traveled to Vietnam, France, former East Germany, and Cambodia to interview victims, perpetrators, other witnesses, and recover evidence of war crimes.
It was only after the Khmer Rouge collapse and Hun Sen’s 1997 coup that discussions over war crimes trials between Cambodia’s Prime Minister, Hun Sen, and the United Nations began in earnest. The back-and-forth negotiations quickly became a battle between national sovereignty and the demands of a new, more ambitious and aggressive form of international criminal law.
After five years and eleven rounds of talks, UN and Cambodian representatives reached a provisional agreement for a “mixed” war crimes tribunal in 2003. Under this novel, but unwieldy plan, the Cambodians would have a majority on both the war crimes court and the appeals court. The co-prosecutors, one UN and one Cambodian, would prepare indictments against the small handful of surviving senior Khmer Rouge leaders. The charges combined categories of both domestic and international law: homicide, torture, religious persecution, destruction of cultural property, genocide, crimes against humanity, war crimes, and crimes against internationally protected persons.
Rereading my essays and op-eds on Cambodia and the Khmer Rouge trials, I am reminded of Freud’s concept of the narcissism of minor differences. In his 1930 essay, “Civilization and Its Discontents,” Freud wrote, “communities with adjoining territories, and related to each other in other ways as well, who are engaged in constant feuds and in ridiculing each other.” Most of my criticism of the trials had more to do with the UN’s international legal overstretch and the shameless hype of their human rights industry boosters than the conduct of the actual trials.1
In the end, the ECCC only tried five individuals: Brother Duch (Kaing Guek Eav), Khieu Samphan, Nuon Chea, Ieng Sary, and Ieng Thirith. Although the UN indicted others and postured as if they had power to serve their warrants, this was little more than political theatre. Cambodian leader Hun Sen made it crystal clear that if the UN wanted to participate in war crimes trials in Cambodia, they would play by his rules.
I only visited the courtroom once, in 2012. I happened to be in Cambodia working on a Documentation Center of Cambodia (DC CAM) project when Ieng Sary’s lawyers, Michael Karnavas and Jacques Verges, called into question DC CAM’s methods and evidence that I had recovered in East Germany in the late 1990s. I was watching the trial live online when my decade-old email was projected on a big screen in the courtroom during the cross-examination of my friend and DC CAM employee Vanthan Dara Peou:
Karnavas: D312.2.15 is an email, subject matter: for Ieng Thirith's file. And it's dated January 6 2003, and this is from Peter Maguire to DC-Cam. Based on this email, sir, it would appear that there was a file with respect to Ieng Thirith as far back as 22 2003. Were you aware of that, sir?
Vanthan Dara Peou: As stated, at the DC-Cam each member of staff has his or her own folders for research.
Karnavas: Sir, you already told us that. This is to DC-Cam, and it's to Youk. Who is "Youk" referred to in this particular email? Is he some kind of staffer? Or is he the director?
Vanthan Dara Peou: You did not ask me whether this document was sent to Mr. Youk Chhang or not, and since the document is being shown before me, I was trying to explain to you why such folder was created.
Karnavas: Thank you. Look at the document. Below, you will see: “Dear Youk” -- it's in English, you have a master's from Notre-Dame, you can read English -- and then, below, it's “Peter Maguire.”
Extraordinary Chambers in the Courts of Cambodia Trial Chamber – Trial Day 21
Case No. 002/19-09-2007-ECCC/TC
25/01/2012
While I knew that theatrics like this are an important part of any trial, I was irritated by the implication that DC CAM and I had engaged in anything untoward, so I issued this public statement:
“I have never received payment or direction at anytime from DC Cam. At a very chaotic time in Cambodian history, DC Cam provided the only safe and secure archive for historical materials that belonged to the Cambodian people. I am an independent scholar trained at Columbia University by Nuremberg chief counsel Telford Taylor and was working on these issues long before the creation of DC Cam. I first traveled to Cambodia in 1994, after the UN had failed to hold any Khmer Rouge leader legally or historically accountable. Moreover, at that time, the Khmer Rouge was a potent political and military force. Most troubling, Khmer Rouge leaders and now defendants, Ieng Sary, Khieu Samphan, Noun Chea and Ieng Thirith, were all in the process of successfully revising the regime’s history by blaming the Cambodian genocide on Vietnam. Initially, my intention was to create an unassailable historical record of Khmer Rouge atrocities. The defense has also called into question the validity and origins of interview transcripts that I donated to DC Cam. I recovered these films with the help of German documentary film expert and owner of Chronos Films, Benk von zur Muhlen. He arranged and accompanied me on an interview with East German filmmaker Gerhard Scheumann. Both of us were convinced of the films’ authenticity. I have never pretended to be an objective observer and have always wanted the Khmer Rouge leaders to be held accountable. I held these views long before DC Cam came into existence. The ECCC deserves great credit for so carefully safeguarding the presumption of innocence of some of the worst war criminals of the twentieth century. I share my colleague Ed Vulliamy's view, as he explained to the judges in the Hague: ‘I do not attempt to try to be neutral. I'm not neutral between the camp guards and the prisoners, between the raped women and the rapists … I can't in all honesty sit here in court and say I am or want to be neutral over this kind of violence.’”
Still irritated when I woke up the next morning, I decided to pay Michael Karnavas a visit at the ECCC. The court was located at the Kamboul military base where I had spent many pleasant days teaching some of Cambodia’s first Gracie Jiu Jitsu students.
My old friend, ECCC investigator Craig Etcheson, positioned me on the path between the courtroom and the ECCC offices. As the robed trial lawyers and judges began to file out of the courtroom, Etcheson called out to a spectacled guy in a black robe walking towards us. When he got close, Etcheson said, “I want you to meet someone.” Karnavas extended his hand, I took it, reeled him in à la Gene LeBell, and my friend said, “You said you wanted to talk to Peter Maguire. Here he is!”
I was really trying to hate him, but Karnavas was so friendly and complimentary about my books that by the time we walked into the ECCC offices, my anger had dissipated. Next, I ran into my old friend Sorya Sim who was now working for the court as an investigator, then I finally got to meet the legendary translator and investigator Rich Arant.
Now it was old home week, and while we were yucking it up, I noticed an imposing, mustachioed guy glowering at me from across the room. I approached him, extended my hand, and when I started to introduce myself, he cut me off and said, “I know who you are! I’ve read every word you’ve written.” “We can go outside and fight if you like,” I replied to Australian detective Steve Spargo, now a UN investigator, and added, “I’ll even buy you a beer afterwards.” The big Aussie cracked a sly grin and, just like my anger towards Karnavas had evaporated, he too softened up. I left the ECCC court complex that day with a sense of accomplishment and pride. Not for the incredibly slow, messy, and overcomplicated trials, but for the record of Khmer Rouge atrocities that my friends were compiling.
There is now one extremely important job left for the ECCC to do in order to cement the best part of their legacy. The Khmer Rouge trials need to publish a well-edited series of trial transcripts and evidentiary exhibits modeled on the forty-two-volume Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946 and the fifteen-volume Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10. Better known as “the blue series” and “the green series,” not only do these fifty-seven volumes provide an unassailable empirical record of the war crimes of the Third Reich, but they have also made historical revisionism virtually impossible.
While I stand by the criticism of the ECCC that I made in my 2018 essay “The Khmer Rouge Trials: The Good, the Bad, and the Ugly” below, I am happy to call the agonizingly slow and overpriced proceedings a qualified success for the remarkable job their investigators did documenting the atrocities of the Khmer Rouge and creating an empirical record that can never be revised or challenged.
End Note
1. "Pol Pot’s Prison: A Victim's Gallery" (1997), "Cambodian Democracy Is A Sham" (1998), "War Criminals Have Little to Fear" (1999), "Amnesty?" (2000), "Memories From a Khmer Rouge Prison" (2000), "The Price of Peace" (2000), "The UN Is Weak-Willed in Fighting Genocide" (2001), "A War of Genocide" (2003), “UN-Cambodian War Crimes Court Is Tested,” (2009), “Cambodia’s Troubled Tribunal” (2010), “Cambodia and the Pitfalls of Political Justice” (2011), “UN Has No Right to Sanctimony Over ‘Dysfunctional’ KRT” (2012), “Ieng Sary’s Death Highlights the Failures of the KR Tribunal” (2013), “The Khmer Rouge Trials: The Good, the Bad, and the Ugly” (2018).
The Khmer Rouge Trials: The Good, the Bad, and the Ugly
As the Extraordinary Chambers in the Courts of Cambodia prepares its final verdict, a look back at its legacy.
By Peter Maguire, November 14, 2018 (This article was originally published in The Diplomat).
Irrespective of what the United Nations says, on November 16, the Extraordinary Chambers in the Courts of Cambodia (ECCC), better known as the Khmer Rouge war crimes trial, will hand down their final verdicts. Like most of the UN war crimes trials since the end of the Cold War, the legacy of the ECCC is part good, part bad, and part ugly. In the end, the $300 million dollar court took longer to convict three defendants than it did for the United States, England, and France to try nearly 5,000 war criminals after World War II. Within the spectrum of political justice the ECCC stands above farces like the American “trials” at Guantanamo Bay or spectacles of primitive political justice like the Yamashita Case, but far below flawed, yet ultimately successful trials like Nuremberg’s International Military Tribunal. It would be easier to consider the ECCC “a success” had its boosters in the UN and the human rights industry not raised expectations so high and oversold it so grossly.
Thirty-nine years ago, the world’s response to Khmer Rouge atrocities shattered the “never again” promise once and for all. In three years, 10 months, and 20 days, the Chinese-backed Cambodian communists killed roughly 20 percent of their population (1.5 to 2 million people). When the Vietnamese tried the Khmer Rouge leaders in absentia in 1979, they were widely ridiculed for their efforts. After the world learned of Cambodia’s “Killing Fields,” China, the United States, and the United Nations protected and rearmed the perpetrators while Western leftists, led by Noam Chomsky, attacked “the extreme unreliability of refugee reports” of crimes against humanity. Although the United Nations spent $2 to 3 billion dollars during their Cambodian occupation (1992-1993), no Khmer Rouge leaders were captured, much less held legally accountable.
Three decades after the crimes, the ECCC, a mixed UN-Cambodian war crimes tribunal, was established to try the regime’s surviving senior leaders. The fact that the surviving Khmer Rouge leaders, Khieu Samphan, Nuon Chea, Ieng Sary, and Ieng Thirith, were brought to trial within their lifetimes was very good and silenced longtime critics (like myself) who had to give credit to the ECCC and especially the devoted investigators who worked for decades to bring them to justice. While the UN lawyers and judges were a mixed bag, the generations of investigators, led by Craig Etcheson, Steve Heder, Rich Arant, Sorya Sim and Steve Spargo, did a remarkable job building onto the pre-ECCC research of David Hawk, Ben Kiernan, David Chandler, Youk Chhang, Sara Colm, Helen Jarvis, Doug Niven, Chris Riley, Nic Dunlop, Nate Thayer, Rithy Panh, Elizabeth Becker, and many others.
By far the ECCC’s most important legacy was the creation of an unassailable historical record that will withstand the test of time and make historical revisionism virtually impossible. However clear the historical facts seem to Western scholars, they remain unclear to some Cambodians and for good reason. Over the course of three decades, Cambodians were subjected to the competing and contradictory propaganda claims of the U.S.-backed Lon Nol regime (1970–1975), the Khmer Rouge (1975–1979), the Vietnamese-installed People’s Republic of Kampuchea (1979–1989), the State of Cambodia (1989-1992), the United Nations Transitional Authority Cambodia (UNTAC) (1992–1993), and since 1993 the iron-fisted Prime Minister Hun Sen and his Cambodian People’s Party (CPP). It is now clear for all to see, in meticulous detail, who did what to whom.
The decision to begin the war crimes trials with the case of Tuol Sleng Prison commandant Brother Duch (Kaing Guek Eav) was a bad one. Although Duch was a blood-stained butcher who ran a prison that 16,000 to 20,000 people entered and less than 20 survived, he was a garden variety war criminal, not a senior leader. Unlike the senior political leaders who denied knowledge of atrocities, Duch, now an evangelical Christian, admitted his guilt. As a result of his confession and the empirical records linking him to the killings at Tuol Sleng, this was the simplest major war crimes trial since Einsatzgruppen leader Otto Ohlendorf and 23 others were tried at Nuremberg. However, the tribunal in the Einsatzgruppen Case took six months to try 24 defendants; the tribunal in the Duch took over a year to try a single defendant.
In the end, this case delayed the proceedings against the senior leaders and only two of the four were tried (defendant Ieng Thirith was declared mentally unfit to stand trial in 2011 and her husband Ieng Sary died in 2013). The ECCC’s failure to complete the trials of indicted senior leaders within their lifetimes raises an important question: Are the UN’s overcomplicated and overpriced trials worth the money, time and trouble if they cannot complete trials while the defendants are alive?
The unbridled arrogance of United Nations officials who acted as if they were honest brokers in Cambodia was ugly. Lest we forget, the UN allowed Khmer Rouge representatives to hold Cambodia’s seat in the General Assembly after it was clear that they had carried out massive atrocities, if not genocide. The UN’s failure to even mention Khmer Rouge war crimes in the Paris Peace Accords, the agreement that paved the way for the UN occupation of Cambodia and the 1993 election, was ugly. It was also ugly that during the United Nations Transitional Authority Cambodia’s (UNTAC) occupation, despite the presence of 15,000 troops, could not summon the political will to capture a single war crimes suspect, much less end the civil war.
It is important to remember that Cambodian war crimes trials were not seriously discussed until Prime Minister Hun Sen did something the UN was unwilling to do — he used force and diplomacy to break the back of the Khmer Rouge in 1997. The 1999 recommendations of UN war crimes experts (Steven Ratner, Ninian Stephen, and Rajsoomer Lallah) that the trial be moved out of Cambodia and put under UN control were not only ugly, they reeked of unearned arrogance. Not only did an offended Hun Sen scoff at their seminar room legalism, but he never tired of reminding the UN that during the UNTAC era, “they never talked about trying the KR, [but] they talked about recognizing the KR to participate in a political solution.” In the end, the Cambodian prime minister suggested that the UN’s war crimes experts “end their careers as lawyers and work in politics” and completely rejected their recommendations. After much international legal posturing, the United Nations agreed to a trial in Cambodia with a Cambodian majority at every level.
Once it was clear that mixed UN-Cambodian trials would take place, Phnom Penh was flooded with human rights industry activists who argued that these war crimes trial would do more than determine legal guilt and innocence: trials would bring about a national catharsis. However, claims that war crimes trials lead to healing, closure, truth, and reconciliation are purely speculative. How does one measure “healing, closure, truth, and reconciliation”? If nothing else, the ECCC would test the therapeutic legalists’ broad and unproven claims about “restorative justice” after they established a Victims Support Section (VSS) that permitted “any person or legal entity who has suffered from physical, psychological or material harm as a direct result of Democratic Kampuchea” to testify and seek reparations. ECCC spokesman Neth Pheaktra went so far as to claim, “The tribunal facilitates reconciliation and at the same time provides an opportunity for Cambodians to come to terms with their history.” The VSS faced the same problems as the International Criminal Court in the Lubanga case where the ICC announced reparations for some victims, not others, and infuriated many in the Congo. In the end, the VSS overcomplicated and slowed the trials.
Although therapeutic organs like the VSS have a place, it is not in a courtroom. To ask any court, much less a war crimes court, to heal societies or teach historical lessons is asking too much. To claim that courts executing laws against war crimes can also bring about social and political peace, even if that concept could be defined to everyone’s satisfaction, is delusory.
Once the first trial began, the ECCC attempted to act with autonomy by opening new cases against other surviving Khmer Rouge leaders like navy head Meas Muth. When the Cambodians refused to investigate these new cases, much less carry out arrest warrants, the United Nations should have completed their existing caseload and announced a departure date. Instead, the UN and their allies in the human rights industry challenged Hun Sen and postured as if their power extended beyond the op-ed page of The New York Times. In the end, the ongoing demands for more trials was little more than international legal virtue signaling.
Throughout the ECCC there has been a Chinese elephant in the room. “When people mention the Khmer Rouge, many might be reminded of the support China once gave it. This is a problem that cannot be avoided. No matter whether China wants it or not, people will allude to that history,” wrote Vietnamese diplomat Ding Gang, “If there is a case to be made, it remains up to the Chinese themselves to make it. Their approach in shutting down Vietnam’s case of Khmer Rouge genocide against Vietnamese civilians is not the way to do it. We are stuck with a Southeast Asia that is afraid to confront, even to discuss, its history. To me, that means more of the same to come.” While the Chinese have maintained that the ECCC was a “Cambodian internal affair,” we need to remember that the Khmer Rouge had no more generous and indulgent patron than the People’s Republic of China.
Although the Khmer Rouge leaders were charged with committing genocide against the Cham Muslims and ethnic Vietnamese inside of Cambodia, conspicuously absent was any mention of the atrocity that ultimately brought down the regime: the massacre of 3,000 Vietnamese in An Giang. Retired Vietnamese diplomats have recently offered more evidence of the Chinese efforts to protect the Khmer Rouge allies. “Truthfully speaking, we were also the victims of Pol Pot’s genocide. When they came across into An Giang, our fellow countrymen were horribly massacred. But for our own sake, for the greater duty, because of major issues, we must let it go,” wrote former Vietnamese President Lê Ðức Anh. While some downplay the Chinese influence on the ECCC, is it a coincidence that the court never hired a Vietnamese-speaking investigator or placed a single Vietnamese interpreter inside the Office of the Coinvestigating Judges?
Many of the war crimes careerists who frequent the revolving door between the UN and the human rights industry standard bearers like the Open Society Institute, Human Rights Watch, Amnesty International, and the hundreds of academic human rights think tanks act as if they have rid international criminal law of politics through procedural perfection and that there is such a thing as “international standards” for war crimes courts. After 9/11, not only did President George W. Bush reject both codified (the Geneva Conventions) and normative standards of international law (via the International Criminal Court), many of the world’s powers followed his lead. Even as early as 2002, David Rieff pointed out that “the norms [of international justice] had outstripped the realities to a grotesque degree.” However, rather than face profound questions about the relationship between national sovereignty and “universal jurisdiction,” human rights advocates fell victim to magical thinking. Lawyer, human rights activist, and celebrated author Philippe Sands argued that the ECCC’s success or failure should not be determined by “dollar signs and convictions.” To Sands, “the bigger question” was the extent to which “this tribunal contributed to beginning the process of embedding the idea of justice, the absence of impunity into public consciousness, to help Cambodia transition to a better place.”
Did the Khmer Rouge war crimes trials contribute to “beginning the process of embedding the idea of justice”? Absolutely not. Did the ECCC help “end impunity in the public consciousness”? Absolutely not. Did the court “help Cambodia transition to a better place”? Absolutely not. During the course of the Khmer Rouge war crimes tribunal, Cambodia imprisoned opposition leader Kem Sokha, killed a once vibrant free press, and became a one-party state. However, does that make the ECCC a failure or a farce? Absolutely not.
The ECCC, like every similar effort before it, proved once again that politics are an indelible part of any war crimes trial. Why were trials delayed for three decades? Politics. Why was the genocidal regime allowed to represent Cambodia in the UN? Politics. Why did the ECCC refuse to investigate the Vietnamese massacre in An Giang? Politics. Why did the court overlook the United States’ secret bombing of Cambodia, spearheaded by Henry Kissinger? Politics.
Nonetheless, as overpriced and overcomplicated as ECCC was, thanks to the historical record compiled by generations of valiant researchers, it can be counted as a success. Now it is time for the UN to stop the magical thinking about future trials, confirm the final sentences, and announce a departure date from Cambodia.