Sunday, August 26, 2007

Steve Heder: the Senior Leaders and Those Most Responsible

Steve Heder examines the challenges
facing the Extraordinary Chambers,
including the question of who should
be tried.
Two reasons are generally given for
proceeding with the Khmer Rouge
tribunal, despite its flaws. The first
is that if it does not go ahead, the
surviving men and women responsible
for the crimes committed under
Communist Party of Kampuchea
(CPK or Khmer Rouge) rule will either
go unpunished, remain indefinitely
in detention without trial, or be summarily
convicted in domestic trials: all
unacceptable outcomes. The second
is that although there is a vast—albeit
largely lost—potential for improvement
in both the law and the agreement
establishing the court, there is
nothing fundamentally wrong with
either, on paper, in terms of human
rights protections or truth-seeking
objectives.1 There are, however, four
problems that advocates of going forward
with the court must recognize.
Political influence
The first problem is that the tribunal
will probably conduct only approximations
of fair trials, given the very real
potential for illegal interference by
politicians, including Cambodian
government officials and diplomats
representing other governments. I say
“probably” based on past experience
of the Cambodian judiciary, which
is so lacking in impartiality and independence
that a fair trial in politically
charged cases has been virtually
impossible. In only one instance in
the past decade was a court trying
a politically sensitive case allowed to
do the right thing—to weigh the
evidence and make judgments based
on evidence alone.2
For most observers, this historically-
based concern is buttressed by a conviction—
also borne of experience—
that the dominance of politicians over
the courts is beyond short- or mid-term
correction through “capacity-building”
programs. These have been attempted
in Cambodia for more than a decade,
with so far negligible results, as most
donors now increasingly realise and
publicly state.3 The fundamental problem
is not a lack of knowledge or training
within the judiciary—although
more of both is sorely needed—but
rather the determination of key political
players to prevent training and
knowledge from being put to use
against their fundamental political and
economic interests.
Two recent incidents indicate
things have not changed in this
regard, and may indeed be getting
worse. The absurd judicial shenanigans
revolving around the murder
trial of anti-government union leader
The Senior Leaders and
Those Most Responsible
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Chea Vichea in 2004, resulted in the
August 2005 conviction of two men
who—by all available evidence—were
far from proven guilty and are widely
seen as framed and imprisoned to
protect the real assassins.4 The second
was the judicial reversal of the Bar
Association’s October 2004 election
of human rights defender Suon Visal
as president, which, when it was overturned
by the Supreme Court in June
2005, was immediately followed by
criminal prosecution against Visal.5
This attempt to keep the previous
incumbent, Ky Tech—the government’s
preferred candidate—in place
almost caused the Bar Association
to collapse. At the same time, there
is every reason to believe that, left
to do their jobs in peace, many
Cambodian judges and lawyers are
perfectly capable of weighing up evidence
and of exercising independence,
and indeed some are eager to do so,
given the chance.6
The candidates for prosecution
The second problem is that there is
good reason to believe that some in
Cambodia wish to ensure that the list
of suspects tried in the Extraordinary
Chambers in the Courts of Cambodia
(EC) is politically predetermined—
with the intention of shielding individuals
now in positions of authority,
not so much from prosecution, as
from embarrassing scrutiny in the
testimony of their former associates
should the latter be prosecuted.
The texts of both the EC Law and
the UN Agreement are acceptable,
if not unproblematic, in their formal
restriction of jurisdiction to “senior
leaders . . . and those who were most
responsible” for Khmer Rouge
crimes.7 The focus on senior leaders
is defensible, especially as the law also
makes possible prosecution of the
second category of suspects. The problem
is that negotiations on the court
have been accompanied by the intention
(both stated and unstated) to limit
prosecutions to a handful of senior
Khmer Rouge leaders and a few other
notorious perpetrators of crimes,
most notably the leading cadre of
the CPK central security office, the
Phnom Penh torture center known
as S-21, or Tuol Sleng. The evidence
suggests, however, that “those most
responsible” could include other
Khmer Rouge cadre who should,
according to a literal interpretation of
the law, be candidates for prosecution.
A first question is: how many?
A glance at the history of the Khmer
Rouge may help find the answer.
When the CPK was in power, its
senior leadership comprised some
20-30 members of the formal
decision-making and policy-setting
Central Committee, based in the
capital, Phnom Penh. In addition,
a corps of powerful cadre at both
the central and local level numbered
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The Extraordinary Chambers
The tribunal will probably conduct
only approximations of fair trials,
given the very real potential for illegal
interference by politicians.
perhaps 1,000 persons. Of the original
1975 leaders and corps of cadre,
maybe fewer than half survived the
purges that began to devastate the
Party in 1976 and proceeded in waves
through 1977 and 1978, and quite a
few of those who made it through to
the end of the regime have since died.
Even if the notional jurisdiction of
the EC were to extend down to the
most important local level, the district,
it is likely that no more than a few
hundred responsible individuals are
still alive. The definitions “senior
leaders” and “most responsible,”
together with the available evidence,
would determine how many of these
could be legally targeted for serious
investigation, but my (very rough)
guess is that no more than 60 cases
would fit into these categories, including
perhaps 10 senior leaders and 50
of their most responsible subordinates,
i.e., those local leaders against
whom there is specific evidence of
individual responsibility for largescale
A perhaps more important question
is: who will be prosecuted?
The Documentation Center of
Cambodia recently republished a
slightly revised version of a paper
I authored in June 2001 together with
the lawyer Brian Tittemore, entitled
Seven Candidates for Prosecution,9
which named seven senior leaders—
all alive at the time—against whom
there was evidence of culpability in
the Documentation Center’s archives
of Khmer Rouge documents. Six of
those seven are still alive today
(the seventh, Kae Pok, a member
of the Central Committee, died in
2002), and evidence to support their
prosecution continues to build. They
Nuon Chea, deputy secretary
of the CPK Central Committee, now
living in the old Khmer Rouge stronghold
of Pailin, on the Thai-Cambodian
Ieng Sary, deputy prime minister
for Foreign Affairs and Central and
Standing Committee, now living in
Phnom Penh.
Khieu Samphan, State Presidium
chairman of Democratic Kampuchea
and Central Committee member, now
with a home in Pailin.
Ta Mok, zone secretary and Central
and Standing Committee member,
currently in custody in Cambodia,
charged with crimes against humanity
and other crimes.
Sou Met and Meas Mut, CPK
Military Division chairmen, now with
residences in Batdambang province,
northwestern Cambodia.
The report also spoke of the massive
evidence against another candidate
for prosecution, Kaing Khek Iev,
known as “Duch,” who is in custody
with Ta Mok and charged with similar
These are the clearest candidates
for prosecution. The others, including
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Left to do their jobs in peace, many
Cambodian judges and lawyers are perfectly
capable of exercising independence.
less notorious central leaders and local
cadre, are probably best not named at
this time, as doing so might prompt
them to go into hiding or take other
steps to avoid arrest and trial.
There are also a number of individuals
who are unlikely to be candidates,
regardless of how expansively the tribunal’s
jurisdiction is interpreted.
In 1998, fellow Cambodia scholar
Craig Etcheson and I issued a statement
declaring that we were aware of
no evidence implicating Hun Sen in
serious Khmer Rouge crimes, a statement
still to be found on various
Cambodian government websites.10
Several years on and after tens of thousands
of pages of documents and
several thousand interviews, this statement
is still true. Indeed, to my knowledge,
there is no one in the famously
huge 2004 Cambodian cabinet who
belongs in the category of “those most
responsible” for Khmer Rouge-era
crimes. In addition to Hun Sen, those
against whom no such evidence has
been adduced include Economy and
Finance Minister Keat Chhon and
Foreign Minister Hor Nam Hong,
long the target of spurious allegations.
Thus, the idea that there might be
highly powerful suspects holding senior
posts in the present government,
army or security forces—voiced both
within and outside Cambodia—is a
myth and a red herring. It appears
to be perverse wishful thinking on
the part of some Cambodians and foreigners
whose opposition to the current
regime on other grounds clouds
their judgment and tempts them to
engage in a witch-hunt.11 Even if the
truth, the whole truth, and nothing
but the truth about “those most
responsible” were to be exposed, it is
extremely unlikely to bring the government
tumbling down or tear society
apart, the doomsayers notwithstanding.
Again, the possibility of following
the letter of the law and spirit of the
agreement exists.
Clarifying the past
A third problem concerns the much
broader issue regarding the truth
about the Khmer Rouge period. If the
EC prosecutions are limited by political
factors, rather than impartial application
of the text of the EC Law—and
if the trials are not conducted fairly
and independently12—they are unlikely
to add very much to our knowledge
and understanding of what happened
under Khmer Rouge rule and why.
Above all, they are not likely to grapple
well with one of the main historical
questions surrounding Khmer Rouge
crimes, namely, the extent to which
the crimes were either the result of:
a) a conspiracy hatched by certain or
all senior leaders, in which they gave
orders to subordinates who carried
them out; or b) abuse of delegated
authority by subordinates, acting without
or even contrary to orders from
above, without knowledge of their
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The idea that there might be highly
powerful suspects holding senior posts
in the present government is a myth.
superiors. The evidence so far indicates
that both kinds of responsibility
contributed to these crimes—but
whether or not this is so, the record
needs to be revealed, analyzed, and
understood to set the legal, historical,
and moral record of the crimes
Beyond the pressing need to allocate
responsibility, better understanding
of this issue may also help resolve
the most common debate about the
deep causes of Khmer Rouge crimes:
were they primarily the result of
the influence of a foreign ideology or of
local cultural proclivities.14 Yet even the
fairest and most comprehensive trials
wouldn’t give us the answer to this
question. Similar or analogous debates
continue among those trying to explain
the Holocaust, the genocide in Rwanda,
and mass murder in the Soviet Union,
regardless of whether there have
been fair accountability trials or not.
Nevertheless, the fairer and more
comprehensive the EC trials are, the
more likely they are to contribute something
new and useful to answering
such fundamental questions.
It is for this reason that a predetermined
focus on senior leaders is
problematic. The narrow emphasis
inevitably gives an impression that all,
or the great majority, of crimes were
the result of a top-down conspiracy,
even if, in fact, that was not the case.
Conversely, dealing squarely with such
issues may result in embarrassing
a handful of powerful government
leaders, who would have to face
facts they would very much rather
remained unknown. The same applies
to many other former CPK members
who are not powerful figures—but
whose crimes may be key to understanding
why lower-downs killed
many fellow Cambodians in such
large numbers in so many places.
Unless Cambodians and others get
to the heart of this issue honestly
and introspectively, the legacy of
Khmer Rouge crimes will remain very
heavy. Again, the tribunal is unlikely
to take us very far down this road, even
in the best case scenario—but at the
least it should not be misused to
preclude further honest introspection.
The demonstration effect
The fourth problem is that unless the
trials are fair and are allowed to follow
the evidence where it leads, regardless
of political considerations, they will
probably have little or no immediate
positive impact on the human rights
situation in Cambodia, including
judicial and legal reform. Simply put,
if the trials demonstrate that it is
possible for the judiciary in Cambodia
to act independently, impartially, and
fairly, then they will have a positive
impact; but if they do not, the impact
will be negative, precisely to the extent
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If the trials demonstrate that it is
possible for the judiciary in Cambodia to
act independently, impartially, and fairly,
then they will have a positive impact.
that they demonstrate the power of
politicians to sabotage and subvert
even the most closely watched trials,
and override the knowledge, training,
and desires of those in the court
system who favor truth and justice.
The most negative outcome would be
if unfair proceedings take place but
are declared to be fair: such an outcome
would be deeply demoralizing
for Cambodia’s dedicated fair trial
advocates, some of whom regard
the EC as offering the possibility of
generating reform.
58 Open Society
The Extraordinary Chambers
Steve Heder teaches politics at the Faculty of Law and Social Science of London University’s School
of Oriental and African Studies.
1. These are: the Law on the Establishment of the Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea,
with inclusion of Amendments as promulgated on October 27, 2004 (NS/RKM/1004/006) (“EC
Law”); and the Agreement between the United Nations and the Royal Government of Cambodia
Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of
Democratic Kampuchea, June 6, 2003 (“UN Agreement”).
2. This 1999 trial—observed for Amnesty International by the author—resulted in the acquittal of
two human rights activists wrongly accused of fomenting violent unrest. For further details, see
Amnesty International, “Cambodia: Freedom for Human Rights Activists: Court Finally Faces
Facts,” AI Index ASA 23/013/1999, (July 21, 1999).
3. See, for example, Henrik Alffram’s report for the Swedish International Development Agency,
“An Analysis of the Cambodian Programme for Legal and Judicial Reform” (May 2004).
4. The finale of this trial was observed by the author. It was characterized by gross procedural irregularities.
For further details, see “Pair Convicted of Killing Vichea Appeal to King,” Phnom Penh
Post, August 12-25, 2005. In another unfair trial—also observed by the author—opposition member
of parliament Cheam Channy was imprisoned on false allegations of forming a secret army. See
Human Rights Watch, “Cambodia: Opposition MP Jailed After Sham Trial” (August 9, 2005); and
“Channy a ‘Prisoner of Conscience’,” Phnom Penh Post, August 12-15, 2005.
5. For recent reports and critical assessments, see International Bar Association, “IBA Concerned at
Crisis in the Cambodian Legal Profession” (July 18, 2005); and “Bar Association Head Reinstated
Amid Conflict,” Cambodia Daily, July 27, 2005.
6. Based on author’s conversations with various jurists and lawyers since 1989.
7. EC Law, Article 1.
8. For further discussion, see Steve Heder, “Reassessing the Role of Senior Leaders and Local
Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative
Perspective,” in Jaya Ramji and Beth Van Schaack, eds., Bringing the Khmer Rouge to Justice:
Prosecuting Mass Violence before the Cambodian Courts (Lewiston: Edwin Mellen Press, 2005).
9. Stephen Heder and Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes
of the Khmer Rouge (Phnom Penh: Documentation Center of Cambodia, 2001).
10. We declared that “calls to indict Hun Sen of Cambodia for genocide, war crimes and crimes
against humanity have no basis in fact or law,” adding that “it is a disservice to the rule of law and
the truth to make baseless or grossly exaggerated allegations to achieve a political end.” See:
11. Credible allegations against two symbolic leaders of Hun Sen’s Cambodian People’s Party, Heng
Samrin and Chea Sim, do exist. However, neither is truly powerful, and whether they might be
deemed “most responsible” is an open question.
12. See Brad Adams, “Cambodia’s Judiciary: Up to the Task?”; Scott Worden, “An Anatomy of the
Extraordinary Chambers”; and Dinah PoKempner, “The Tribunal and Cambodia’s Transition to a
Culture of Accountability,” all in Ramji and Van Schaack.
13. Again, see “Reassessing the Role of Senior Leaders and Local Officials.” See also Michelle
Vachon’s interview of Ea Meng-Try in her review of his book Breaking the Chains (Phnom Penh:
Documentation Center of Cambodia, 2005), in Cambodia Daily, November 5-6, 2005.
14. For contrasting views, see Alexander Laban Hinton, Why Did They Kill: Cambodia in the Shadow
of Genocide (Berkeley: University of California Press, 2004) and Steve Heder, Cambodian
Communism and the Vietnamese Model: Imitation and Independence, 1930-1975 (Bangkok: White Lotus,
2004). See also the exchange of letters between Hinton and Henri Locard, in the letters section of
the Phnom Penh Post, October 7-20, 2005.
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