Transitional Justice in Cambodia. The Coincidence of Power and Principle
BETWEEN 17 APRIL 1975 AND 6 JANUARY 1979, AROUND ONE
quarter of the population of Cambodia died at the hands of the Party of Democratic Kampuchea (also referred to as the Communist Party of Kampuchea, or the Khmer Rouge (KR)). The catalogue of atrocity during the period of Democratic Kampuchea (the period during which the KR held power) is extensive. When the KR succeeded in their coup in April 1975, they declared a new start for the country - the calendar was reset to Year Zero, and the regime began to establish what it claimed to be a communist agrarian utopia. The results of this utopia were deadly. Somewhere between 1.6 and 1.9 million people died, most of them through starvation, disease and exhaustion that were either KR policy or foreseeable consequences of it.1 Up to 400,000 were tortured to death at a series of prisons set up around the country or executed in purges.  Ethnic and racial minorities, religious leaders, professionals, educated people, government officials and people with contacts abroad were targeted in particular. Of those who did not manage to flee the country, almost 100 per cent of the Vietnamese were murdered, 50 per cent of those of Chinese descent, 40 per cent of the
Thai and Lao and 36 per cent of the Cham. All but forty-three doctors and all but seven lawyers were killed, along with 18,000 teachers and 10,550 students. In addition to the loss of such a high proportion of the Cambodian population, Cambodian society was also all but destroyed. Cities were evacuated, and people were forced to work under armed guard on collective agricultural projects with little food and no medical care. Children were used as prison guards and spies and forced or encouraged to commit acts of appalling violence. Money was abolished, schools closed and Buddhism suppressed. An offence of ‘familyism’ was devised to punish people who showed attachments to anything other than Angka (‘the organisation’, i.e. the KR party), and marriages were forced. Angka controlled all aspects of people’s lives and condemned many of them to death.
The regime was finally overthrown on 7 January 1979 when Vietnam intervened (with Soviet backing), captured Phnom Penh and installed the People’s Republic of Kampuchea (PRK) government. The PRK was staffed for the most part by ex-Khmer Rouge cadres who had fled to Vietnam during the purges, and included Hun Sen - now prime minister of Cambodia - as foreign affairs minister of the regime. The KR were driven into refugee camps along the border with Thailand, from which they maintained significant influence in Cambodian politics until KR leader Pol Pot’s death in 1998.
The damage done to Cambodian people and their society during the period of Democratic Kampuchea was deep, long-lasting and perhaps impossible to ever remedy. Yet very little has been done to attempt to hold perpetrators accountable for their actions in the period until recently. The PRK regime held the People’s Revolutionary Tribunal in 1979, which, after five days of hearings, found Pol Pot and his Deputy Prime Minister for Foreign Affairs Ieng Sary guilty in absentia of genocide and sentenced them to death. The Tribunal was the first ever legal body to try or convict suspects for the crime of genocide, and did attempt to bring some form of justice to victims of the prior regime, though it was widely regarded in the West as a show trial organised by Vietnam’s puppet government. Between 1979 and 1997 no further trials were held and instead amnesties were issued first in 1994 to members but not leaders of the KR and second in 1996 to Ieng Sary. Only in 1997, eighteen years after the fall of the KR regime and four years after the 1993 elections which mark Cambodia’s transition to some form of democracy did the Co-Prime Ministers of Cambodia request help from the United Nations (UN) to set up a tribunal to try KR leaders. Lengthy negotiations followed, and it was not until March 2003 that the international community and the Cambodian government agreed a way to try those who are alleged to have committed the greatest crimes in the KR period. The Extraordinary Chambers in the Courts of Cambodia (ECCC) were set up to try ‘senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.’ In this chapter, which is substantially informed by research conducted at the ECCC and in Phnom Penh in 2011, I will first set out the key features of the ECCC, then document the successes and failures of the court, before broadening the analysis beyond the limited mandate of the court to look at the political context of efforts to bring justice in Cambodia, the actors and interests involved and the implications of the Cambodian case for recent accounts of the effects of trials on human rights and democracy. The Cambodian case is a particularly rich one in the context of the three debates outlined in the Introduction to this volume, given that efforts to bring peace (through amnesty or pardon) were replaced, once peace was established, by efforts to bring justice (through trials), and those trials have both retributive and restorative elements. There is also a tension between top-down control (through the UN and the Cambodian government) and bottom-up influence through newly formed human rights NGOs who campaign for and around the trials.
-  Ben Kiernan, ‘The Demography of Genocide in Southeast Asia’, Critical Asian Studies,Vol. 35, No. 4 (2003), pp. 585-597.
-  David Chandler, A History of Cambodia (Boulder Colorado: Westview Publishers,2008), p. 259.
-  Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia underthe Khmer Rouge, 1975-79 (New Haven: Yale University Press, 2008), p. 458.
-  Tom Fawthrop and Helen Jarvis, ‘Getting Away with Genocide’ (London: Pluto, 2004)pp. 14-15.
-  Chandler, A History of Cambodia and Kiernan, The Pol Pot Regime give scholarlyaccounts of the KR regime. Nick Dunlop, The Lost Executioner (London: Bloomsbury,2005) and Haing Ngor, Survival in the Killing Fields (London: Robinson, 1987) arejournalistic accounts.
-  The amnesties are discussed in more detail in the second half of the chapter.
-  Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006).