President Bush often refers to "killing fields" when describing the brutal crimes committed by Saddam Hussein against his own people. Given the world's almost exclusive focus on Iraq, few may recall the genocidal regime that gave rise to that phrase 30 years ago. Earlier this week, the Cambodian National Assembly ratified a law establishing a long-overdue war crimes tribunal for the remaining leaders of the Khmer Rouge. As Saddam awaits trial in Baghdad one year after being ousted from power, Cambodia is just beginning to reopen the book on its own tortured past.
From April 1975 until January 1979, the Khmer Rouge regime subjected citizens to forced labor and genocide in a quest to turn the country into an agrarian communist society. The entire population of Cambodia's urban areas was evacuated from their homes and forced into slave labor in the killing fields. The entire professional and technical workforce was targeted in an attempt to rid the country of "intellectual" or "elite" classes. By the end, nearly two million Cambodians lost their lives, representing a staggering fifth of the entire population.
No senior Khmer Rouge official has ever been called to account for the regime's atrocities. Pol Pot died in 1998 under mysterious circumstances in the jungles of Thailand as the international community closed in on his capture. Two of his top deputies – Ta Mok and Kaing Khek Iev – are in jail after being seized by the government in recent years, but have not been convicted of any crimes. Other key leaders like Nuon Chea, Khieu Sampheu, and Ieng Sary remain free. Thousands of perpetrators continue to roam the countryside.
After years of pained negotiation between the United Nations and the Cambodian government, an agreement was reached last year establishing special chambers within the Cambodian court structure to prosecute the handful of former Khmer Rouge leaders deemed "most responsible" for war crimes, crimes against humanity, and genocide. The tribunal is to consist of both foreign and Cambodian prosecutors and judges. In an awkward and complex formula, Cambodian judges would outnumber their foreign counterparts, but would need the vote of at least one foreign judge to confirm any decisions.
Some fear the trials will become politicized. Similar concerns were raised about the trials in Sierra Leone, East Timor, and Rwanda. As in those cases, the bar will not be one of perfect justice, but rather credible justice. How this arrangement is applied will make all the difference. The trick will be to find a way to balance Cambodian ownership with international legitimacy. This will be extremely difficult, but not entirely impossible.
After years of division and violence, the need for the tribunal is clear. It offers an opportunity to place into the record the countless stories now burdening shoulders of former victims, as well as former perpetrators. As one Cambodian human rights worker noted, "it doesn't matter to me so much what the outcome of the trials are – whether folks are acquitted or not – just that there is a process that allows for people to talk… and while the people don't necessarily want the tribunal, they recognize that they need it." Nonetheless, the trials will leave many Cambodians unsatisfied. Designed only for a handful of former Khmer Rouge leaders, mass killers will continue to live freely among those they tormented.
Those who have struggled for decades to see the creation of a Khmer Rouge tribunal are at a critical juncture. I recently traveled to the country with a team of experts assisting in preparations for the tribunal. Several obstacles to its establishment and operation are emerging.
- First, as the current judicial system is notoriously corrupt, it will be up to the international community to ensure the tribunal's credibility. The United Nations has a vital role to play in providing the necessary credibility and oversight. The United Nations, notoriously slow when it comes to vetting and appointing international personnel, will need to move quickly to set the tone and provide staff with integrity.
- Second, after the conclusion of years of stalled negotiations, the tribunal is in jeopardy of being delayed indefinitely due to the lack of international financial assistance. Despite the fact that the United Nations and the government have come to agreement on several thorny issues, the tribunal will not come into existence until adequate funding is raised. If the past record of funding tribunals is any indication, it could be years until this requirement is met.
- Third, due to the mixed nature of the tribunal, several final administrative and internal management arrangements present complicated problems for the tribunal's day-to-day work. The tribunal will have difficulty getting off the ground unless arrangements are clarified between the two sides on issues ranging from how to deal with pay disparities between the international and national staff to responsibility for issues of witness protection and security.
- Fourth, while most of the potential indictees have indicated willingness to answer charges before the tribunal, the possibility exists that many will try to flee the country. Because the tribunal lacks explicit powers from the U.N. Security Council, there is no solid legal obligation for countries to extradite fugitives back to Cambodia to face trial. Preparations for entering into memoranda of understanding and agreements with states must be undertaken now to ensure that fugitives do not slip through the cracks of international law.
- Fifth, the political momentum – both in Cambodia and abroad – for the tribunal is disappearing. While the Cambodian population, after over two decades of waiting, is anxious for a final accounting of crimes, it is becoming increasingly inpatient with the seemingly unending process of compromise. Without clear leadership and visible progress, the tribunal may well collapse in the coming weeks.
The tribunal has the potential to establish higher standards in a country still plagued by violence, lawlessness, and impunity. As the world struggles with modern day atrocities in Iraq, Afghanistan, Sudan, and elsewhere, one lesson from Cambodia is worth learning – the failure to pursue the truth about the past will continue to poison hopes for the future. The months ahead will reveal if Cambodia, with the assistance of the international community, will finally be able to bring senior perpetrators of atrocities to justice, or whether judgment day will yet again be postponed.
Michael Pan is a senior policy analyst at the Center for American Progress. He served as the political adviser to the Chief Prosecutor of the Special Court for Sierra Leone.