Khmer Rouge Palimpsest

On a humid Aug­ust Thursday in 1993, six days after the Daily’s first issue was printed, a Khmer Rouge messenger came to our offices with a note from Khieu Samphan.

In it, the former chairman of the state presidium under Democratic Kampuchea pledged solidarity with Funcinpec and “to uphold the banner of reconciliation” under the lead­ership of Prince Norodom Sihanouk.

The message had a clear context. Three days earlier, the Daily had carried an article on a televised speech by Funcinpec’s First Prime Minister Prince Norodom Rana­riddh. He had denounced Khmer Rouge terrorism and laid the blame for Phnom Penh’s military attacks on Khmer Rouge strongholds squarely at their own feet.

“The provisional govern­ment­…had been waiting very patiently for the Khmer Rouge to join but they had not acceded to the necessary conditions to make them eligible to return,” the Prince said, promising that continued recalcitrance would be severely dealt with.

In the months that followed, the Khmer Rouge were kicked out of their offices at the Royal Palace (which they had maintained since 1991 for negotiations in the capital) and were then banned outright as an illegal group by a unanimous National Assembly. The war continued but Khmer Rouge ranks were steadily depleted by defections.

By 1997, however, the Khmer Rouge was openly flirting with party politics. A year earlier, then-King Noro­dom Sihanouk had quashed the 1979 death sentence imposed on former Democratic Kampuchea Foreign Minister Ieng Sary and his troops had rallied to the government.

Ahead of the elections planned for 1998, Ieng Sary’s Democratic National Union Movement announced its support for Prince Ranariddh’s National United Front, a Funcinpec campaign coalition which aimed to include Sam Rainsy’s Khmer Nation Party and Son Sann’s Buddhist Liberal Democratic Party.

DNUM ultimately pulled out of the unhappy alliance. But its leader Sok Pheap, an old rebel warrior turned RCAF general, pledged “100 percent support” for the coalition’s 14 principles, which included such enlightened objectives as administrative reform, environmental conservation, anticorruption laws and international election monitoring.

Where a wartime Khmer Rouge military had once publicly thrown its support behind the leadership of Norodom Sihanouk, a pacified rebel wing was now politically aligned with his son.

The days separating that moment from the Daily’s founding had been marked by permissive confusion: Phnom Penh’s fractious leaders became like the arms of a self-contradicting weather vane pointing at times in two directions.

From their beginning, the pages of the Daily show a fledgling newspaper whipsawed by these changes, making any history awkward and vulnerable to partisan criticism.

By taking different positions on different days, the characters in the drama promised the Khmer Rouge leaders reconciliation while preparing their judicial reckoning. They lured troops out of combat while managing their absorption into society and government.

Before his murder in 2003, Funcinpec statesman Om Radsady famously called Cambodia “a play with too few actors, all of whom have to play several roles.”

Perhaps more than for anyone else, this maxim has held true for the Khmer Rouge, who, in the 15 years since the first issue of the Daily, have at different times been both Phnom Penh’s foe and its friend, a persistent threat and a spent force, an open wound and a past better off buried.

With their effective collapse in 1996, the Khmer Rouge found Phnom Penh headed for cataclysm. Out of the disputed 1993 elections, which were boycotted by the rebels, a factionalized government of co-premiers and twin ministers from both Funcinpec and the CPP had been created in which neither party held clear authority.

While forces loyal to CPP Second Prime Minister Hun Sen were undoubtedly stronger than Prince Ranariddh’s forces, the availability of defecting Khmer Rouge troops offered the dangerous potential to shift the balance of power – militarily.

The result was a mounting tension between both sides as they competed to attract greater numbers of defectors into their fold. Government was at a standstill.

Perhaps partly out of concern that their efforts to attract rebel defectors could lead to embarrassment, both premiers agreed to sign a letter on June 21, 1997 asking the UN for help in putting the Khmer Rouge on trial.

But the inevitable happened exactly two weeks later. Tanks rolled in the capital’s streets and following days of bloody battles, Prince Ranariddh was ousted as Hun Sen emerged as Cambodia’s new strongman.

Both sides had used ex-Khmer Rouge fighters and it was never convincingly shown that Funcinpec had brought significant numbers of former rebels into the capital. In radio broadcasts during the coup, however, the guerillas threw their support behind the royalists.

It was allegedly secret contacts with the Khmer Rouge that saw Prince Ranariddh sentenced in March of 1998 to 35 years in prison for an alleged coup conspiracy with the rebel guerillas. His father at the request of Hun Sen pardoned him the same month.

Shortly before violence had broken out, a Khmer Rouge defector to the government, RCAF Colonel Phon Pheap, had held a press conference in Phnom Penh, accusing Funcinpec of planning a coup with guerilla assistance. He was shot dead the following January by Military Police in Kompong Speu province who said he had tried to escape custody.

With so many dead in the capital’s streets, negotiations for a Khmer Rouge tribunal nevertheless survived. Both Hun Sen and Prince Ranariddh continued to express support for their request for UN help in Khmer Rouge trials.

“As a strange historic coincidence, the issue that could have become deeply divisive turned out to be the only one on which all political forces now agreed,” UN human rights envoy Thomas Hammarberg wrote in 2001.

As the dust settled, Ieng Sary acted as a CPP emissary, telling Khmer Rouge hardliners in Anlong Veng they could have a place in his DNUM if they made peace and promised to stop insulting Hun Sen.

“I will welcome Anlong Veng into DNUM if their leaders stop scolding the government, especially Second Prime Minister Hun Sen,” Ieng Sary said at the time.

The question of creating a Khmer Rouge tribunal took on greater urgency with the death of Pol Pot, in April, 1998. But as the discussions turned to how and where to try the former regime’s members, they seemed to be more concerned with New York than Choeung Ek.

With likely defendants getting older and sicker and starting to die off, a recondite, time-consuming rigmarole of negotiations grew further and further from the public’s memories of blood and tears.

But negotiations were not the only barrier as, for the government, putting down the Khmer Rouge required a public posture forswearing justice.

A panel of three experts appointed by UN Secretary-General Kofi Annan said existing evidence suggested that perhaps 20 to 30 Cambodians might be tried by an international tribunal located in a neighboring Asian country for crimes including genocide, crimes against humanity and war crimes. However they said it could be difficult to prove intent for genocide charges.

Nuon Chea and Khieu Samphan were doubtless high on the experts’ list of likely defendants. But in December 1998 they were hosted as guests in Phnom Penh by the Prince and the premier, the very men who had sought the UN’s assistance in bringing them to justice.

The pair’s defection to the government – with assurances they would not be tried – effectively marked the guerilla faction’s death.

“If we say, ‘This is wrong. This is right,’…then we cannot reach national reconciliation,” Khieu Samphan told reporters following a luncheon at Hun Sen’s Takhmau town villa which was also attended by Prince Ranariddh. “History should remain history,” he said.

A day earlier, Hun Sen said neither man would be tried. “We must dig a hole and bury the past,” he said in a speech at the Council of Ministers.

Three months later Ta Mok, former secretary of the Southwest Zone, was behind bars. RCAF forces arrested Ta Mok, the former military chief of staff known as “the butcher,” as he crossed from Thailand at a remote border location on March 6 and took him to the capital where he was charged by the Military Court under the 1994 law banning the Khmer Rouge.

Hun Sen said the last of the Maoist leaders should be quickly tried in a Cambodian court, “without waiting for foreign countries to spend money and waste years until Ta Mok dies.” That was precisely what was to happen when Ta Mok died in custody in 2006.

“Hun Sen has obviously seen the international tribunal as an instrument to defeat the Khmer Rouge more than as a means of establishing justice,” wrote Hammarberg. “When Ieng Sary, Nuon Chea and Khieu Samphan had surrendered and Ta Mok [was] under house arrest, the tribunal became less important to him.”

Kaing Guek Eav, or Duch, the former S-21 director who was arrested two months later in Battambang province and flown to the capital. He and Ta Mok then began what would end up being the longest pretrial detentions in modern Cambodian history.

But Hun Sen did not let the idea of Khmer Rouge trials simply fade. The month before Duch’s arrest, he had written to Kofi Annan to say that Ta Mok would be tried by a Khmer court but that foreign jurists could be invited to participate – perhaps the first discussion of a “mixed” tribunal.

At meeting with the UN Secretary-General in September, Hun Sen offered three choices for Khmer Rouge trials: (1) help Cambodia draft a law to create a Cambodian court in which international jurists participate; (2) simply provide legal assistance to purely Cambodian trials and (3) call the whole thing off.

For the UN, it was option one or bust. But, for Hun Sen, the discussions were an opportunity to assert Cambodia’s national sovereignty over the trial process.

“You can participate but do not try to be masters of the issue,” the premier told Hammarberg in an October meeting. “If [UN legal experts] go on about nominations and majority of judges and so on, they are not participants.”

The court, he said, was to be Cambodia’s prize.

“I do not wish a foreign woman to come to Cambodia and dress up in a Khmer dress. I want a Khmer woman to dress in a Khmer dress and for foreigners to come and help put on the makeup,” Hun Sen continued.

“If we can dissolve Khmer Rouge, we can organize the trial. If no trial is held, it means there are no values anymore,” he said. “Thirty of my years have been dedicated to fighting Khmer Rouge. I would like to be nominated for the Nobel Prize for that,” Hun Sen added.

Cambodia was drafting a law on the court with US expertise and the government would soon submit it to the UN, Hun Sen said.

The US intervened without much coordination with UN negotiators, proposing compromises to end deadlocked disagreements with the UN side, many of which were ultimately retained.

A majority of judges would be Cambodian but an international minority at each instance would be required to form a “super majority” of opinion on every bench. The court would officially be Cambodian, as the government asked, but its integration into the local legal system would only be “cosmetic.”

Jurisdiction would be limited to a small number of defendants (at the expense of the appearance of judicial independence, Hun Sen had publicly announced that only four to five people would be tried) but Ieng Sary’s pardon would not be honored.

The resulting government proposal to the UN called for “extraordinary” sessions or chambers within different Cambodian courts but retained much of what the US had suggested.

By 2001, the government and UN had agreed on the basic outline of a Cambodian law establishing a court. However Kofi Annan in January of 2000 wrote to Hun Sen to express concerns about the bill introduced into parliament, chiefly that it offered no guarantee that pardons and amnesty would not be honored.

Kofi Annan said as much to Hun Sen in Bangkok the following month.

Meanwhile US Senator John Kerry proposed that a pretrial appellate chamber be created to resolve conflicts among co-prosecutors and co-investigating judges-without a majority in favor of blocking a prosecution, it would go forward. The measure was intended as a guarantee that cases would not be stymied for political reasons.

But the law enacted in 2001 to create the “Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea” made no mention of amnesties.

Largely as a result of this, the UN side walked out of the process for most of 2002, only agreeing to return to the negotiating toward the end of the year.

At last a treaty acceptable to both sides was signed in 2003, resulting in an amended version of the law to be passed in 2004. The compromise was to leave the question of such amnesties for judges to resolve.

Another two years elapsed as the process of drafting a budget and securing donations and constructing the court’s premises continued.

“Why are we waiting until 2007 to start the trial?!” survivor Sum Rithy demanded to know at a 2006 outreach forum held by the Documentation Center of Cambodia. “If you continue to delay, the Khmer Rouge leaders and witnesses will die one by one.”

It had been twenty-five years since the fall of Democratic Kampuchea. Yet the distance between the spoon and the mouth remained considerable.

For UN personnel unaccustomed to negotiations with the Cambodian government, the lessons recorded since 1997 were to be relearned. Expecting to achieve a quick consensus in talks over the court’s procedural code and the participation of foreign counsel, they were met with a rude shock.

Disagreements over the rules, and over registration fees for foreign lawyers, drew threats from international staff to withdraw from the process.

The matters were resolved but at a cost of a year of the court’s life and initial budget, perhaps drawing echoes of Hun Sen’s warning in 1999 to the UN not to try “to be masters of the issue.”

The court faced no opposition in taking custody of Duch, Nuon Chea, Ieng Sary, his wife, the former Minister of Social Action Ieng Thirith and Khieu Samphan and began to hold bail hearings.

Plagued by persistent allegations of corruption and battered in 2007 by severe criticism of its hiring practices, the court is now facing the exhaustion of its budget, raising the possibility that by the time opening arguments are heard in the trial of Duch, the court’s UN lawyers and judges could be working pro bono.

The government has asserted jurisdiction over kickback allegations currently under review by the UN and may resist a UN call for an inquest into alleged financial improprieties, a scenario that once again would make the court’s UN-government divide a fault line for internal tensions.

“I have been around this block so many times,” David Scheffer, former US Ambassador at Large for war crimes issues and lead US negotiator in establishing the tribunal, said in 2006 as a judicial conference on the court’s procedural code teetered yet again on the brink of collapse.

“It has taken longer to establish this court than it has any other criminal tribunal,” he said.

“We’ve been at despondent moments many times before in this process and we pick ourselves up and go to the table,” he added.

 

 

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