The top three surviving Khmer Rouge leaders often decline to speak about the past because they are worried their words will be turned against them in a future tribunal.
The question is: Does anyone else have reason to worry?
The draft law to try former Khmer Rouge leaders is now in the hands of the Senate permanent committee, which will review the legislation and place it on the full Senate’s agenda, perhaps for Thursday.
The draft law states a tribunal shall be established “to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws…that were committed during the period from April 17, 1975 to Jan 6, 1979.”
Legal experts have said the language in the draft is vague enough that up to 100 people could face prosecution. However, government officials have stressed only those in the top level of the Khmer Rouge hierarchy will be tried.
“What does ‘senior leaders’ mean? What does ‘most responsible mean?” asked Youk Chhang, director of the Documentation Center of Cambodia, which has been compiling an archive on the Khmer Rouge regime that will be used by prosecutors at the tribunal. “The answer to that is the key to peace, to stability, to justice,” he said.
It will be up to the Cambodian and foreign prosecutors and judges chosen to participate in a Khmer Rouge trial to decide the meaning of “senior leaders” and “those who were most responsible,” and therefore determine the scope of the tribunal.
Nuon Chea, known as Brother No 1, Khieu Samphan, the public face of the Khmer Rouge, and Ieng Sary, former deputy premier of Democratic Kampuchea, are the three surviving leaders of the regime blamed for the deaths of more than 1 million Cambodians.
Their names are at the top of the list of those who could face prosecution in a tribunal.
But they are not the ones in prison. Instead, two second-tier cadre are in custody awaiting trial—Khmer Rouge commander Ta Mok and S-21 head Duch, also known as Kaing Khek Iev.
Meanwhile, Nuon Chea and Khieu Samphan are living quietly in the former Khmer Rouge stronghold of Pailin, while Ieng Sary lives in Phnom Penh.
If the determination of who should be tried is based solely on who had the most power in the regime, then likely targets for prosecution would be the six surviving members of the Standing Committee of the Communist Party Kampuchea Central Committee. Fourteen other members, including Pol Pot, are dead.
But if it’s decided that those who had the power to carry out orders from top Khmer Rouge officials, like Duch, should also face trial, the number of prosecutions could be in the dozens.
“The law says that anyone who is responsible should face trial, so that does not only mean the top Khmer Rouge officials,” said Sok Sam Oeun, director of the Cambodian Defenders Project.
Those who fall under the second-tier category include former Khmer Rouge commanders Ke Pauk, Chhouk Rin and Sam Bith. The last two were suspects in the kidnappings and murders of three Western backpackers in 1994.
They could also include some government officials who were part of the Khmer Rouge regime, like Finance Minister Keat Chhon, Foreign Minister Hor Namhong and Pailin Governor Y Chhien.
“The law is very open as to who can be tried,” said opposition lawmaker Cheam Channy, who was one of 92 lawmakers to pass the draft law in the National Assembly last week.
For Cambodians to have justice, everyone involved with the Khmer Rouge, including King Norodom Sihanouk, should face prosecution, said Lao Mong Hay, executive director of the Khmer Institute of Democracy.
“All the surviving leaders should be brought to justice,” he said. “Even the King should want to go to trial so he can clear his name.”
Youk Chhang said the center has information to easily convict Nuon Chea and Duch. “All you have to do is read Khmer to know they committed crimes,” he said.
On the others, Youk Chhang said the center has sufficient evidence to get a prosecutor or investigator started. The least solid case against the three top leaders is the file on Khieu Samphan, Youk Chhang said.
The center has about 155,000 pages of documents and more than 6,000 photographs that have been catalogued. An additional 30,000 pictures and 400,000 pages have yet to be recorded.
“The people don’t care who is tried as long as they can get justice,” said Chea Vannath, president of the Center for Social Development. “Right now, it seems like it’s more political, so the people won’t get justice.”
