Bangkok Post, Sunday, January 31, 1999
Implication and Accountability
Top Khmer Rouge leaders were aware what was happening under Pol Pot's regime and should stand trial for genocide.
The Cambodian genocide of 1975-1979, in which about 1.7 million people perished, was one of the worst cases of mass murder this century. After the Nazi Holocaust, the 1948 UN Convention on the Prevention and Punishment of Genocide was motivated by the call, "Never Again!" But the Convention was never enforced until the 1990s, following the Bosnian and Rwandan genocides.
Last month's surrender of surviving Khmer Rouge leaders Nuon Chea and Khieu Samphan has revived the issue of legal accountability. This new opportunity to try some of the top leaders of the Pol Pot regime, however, has occasioned some of the most blatant backflips in the history of international law. Cambodian Prime Minister Hun Sen, after fighting the Khmer Rouge for two decades, suddenly welcomed their surrender, and has now again called for an international tribunal to judge them. 	Other somersaults have been less acrobatic. For instance, Stephen R. Heder, of the London School of Oriental and African Studies, once described most of the top Khmer Rouge leaders as "dissidents" who were "suspect in the eyes of Pol Pot" during his rule from 1975 to 1979. The "dissidents", Heder wrote in 1991, had even included Son Sen, Deputy Prime Minister of the Khmer Rouge government of Democratic Kampuchea and the ruling Party's security chief; Chhit Choeun alias Ta Mok, the Khmer Rouge military commander; Ke Pauk, the deputy military commander; and Deuch, the chief of the notorious Tuol Sleng prison. Heder wrote that "such surviving dissidents as Son Sen and Kae Pok and perhaps even Ta Mok and Deuch have been wrongly depicted as `Pol Pot loyalists'.".
By contrast, Heder asserted, "there were only two prominent Kampuchean communists who were not suspect in the eyes of Pol Pot and Nuon Chea. They were Ieng Sary ... and Khieu Samphan ... Both Ieng Sary and Khieu Samphan were apparently considered completely loyal and lacking the domestic political strength with which to challenge Pol Pot and Nuon Chea in any way.".
However, as soon as Ieng Sary and Khieu Samphan came within reach of legal action, Heder changed his mind. In 1996, Ieng Sary defected to the Cambodian government. Heder now described Ieng Sary as having shown signs of "dissent and deviation" from Pol Pot's policies. In Ieng Sary's zone in the 1980s, "it was possible for peasants to accumulate smaller amounts of wealth," Heder said, adding that "China would have seen Ieng Sary as more reasonable" than Pol Pot. Moreover, Heder claimed: "Those differences may have existed" under the Pol Pot regime from 1975 to 1979, "with Ieng Sary advocating a more tolerant attitude towards intellectuals and being accused in the Communist inner circle of wanting to coddle the bourgeois elite.".
Heder added: "There's no evidence to suggest that Ieng Sary was ever No.2, or that he had the kind of power base to allow him to enforce his will." (Ieng Sary was in fact No.3 in the Khmer Rouge hierarchy.).
A Khmer Rouge aide to Ieng Sary even quoted Heder as saying on Radio France-Internationale that, "according to the documents I have referred to, Mr Ieng Sary is the only one, among Khmer Rouge leaders, about whom I have so far been unable to gather tangible evidence showing that he initiated or applied purges against intellectuals.".
Khieu Samphan was certainly not in this category. In 1991 Heder had concluded: "Khieu Samphan's political star rose literally on heaps of corpses. He continued to rise in importance as he helped Pol Pot purge other communists..." Khieu Samphan, according to Heder, was "one of the key accomplices in the political execution machine that Pol Pot created" and "one of Pol Pot's chief servitors, second perhaps only to Nuon Chea.".
But now, Khieu Samphan has surrendered with Nuon Chea. Heder suddenly began to suggest that the case against Khieu Samphan was inadequate: "There are cases to be answered by Khieu Samphan and Ieng Sary, but on the available documentary evidence you have to be less confident they would ever be convicted ... There is other evidence against Khieu Samphan that implicates him in the purge process, but little or no documentary evidence that would stand up in court. But that's not to say we won't suddenly dig up such a document tomorrow.".
Indeed, Heder has now dug up evidence to convict those he had described in 1991 as anti-Pol Pot "dissidents". Ta Mok and Ke Pauk, as well as Nuon Chea, can now be indicted on the basis of transcripts of messages between these leaders at the central level and zone commanders, relating to arrests and killings. But, according to the Washington Post, "Heder said the weakness of the cases against Khieu Samphan and Ieng Sary related to `indirect command responsibility', a contentious issue under international law.".
This is false too. War crime cases do require proof of "command responsibility", but in cases of crimes against humanity and genocide, what is needed is proof of a conspiracy. International lawyer Dr Gregory Stanton writes: "Heder is wrong about Khieu Samphan and Ieng Sary's culpability for crimes against humanity and genocide. All one needs to show for those crimes is participation in a conspiracy. To prove their attendance at meetings of the Central Committee where decisions were made to eradicate Chams or to uproot everybody in the Eastern Zone would be enough. Ieng Sary's diary evidently shows that he was well aware of the plans to exterminate the enemies of the party. Khieu Samphan can probably be shown to have been equally aware of the party's policies.".
He was. We have complete copies of the minutes of 15 meetings of the most powerful body in Democratic Kampuchea - the Standing Committee of the Central Committee of the ruling Communist Party of Kampuchea. These crucial Standing Committee meetings were held between October 9, 1975 and May 30, 1976. Khieu Samphan is recorded in the minutes (under his revolutionary name Hem) as having attended 12 of these 15 meetings. The minutes of two of the meetings do not record who was present, but it is likely Khieu Samphan was there as well, totalling 14 out of the 15 meetings for which we have evidence. For instance, at its meeting of October 9, 1975, the Standing Committee put Khieu Samphan "in charge of the Front and the Royal Government; (and of) the accountancy and pricing aspects of commerce.". Khieu Samphan was also appointed President of the State Presidium (i.e. Head of State of Democratic Kampuchea) by a decision of the Central Committee on March 30, 1976. In 1977-78, he also headed the powerful Office of the CPK Central Committee ("Office 870"). In April 1977, soon after he assumed this post, Khieu Samphan declared publicly: "We must wipe out the enemy (and) suppress all stripes of enemy at all times.".
The diary of an aide to Ieng Sary reveals the following view: "In our country, one percent to five percent are traitors, boring in ... the enemies are on our body, among the military, the workers, in the cooperatives and even in our ranks ... These enemies must be progressively wiped out.".
From 1975 to 1979, Khieu Samphan and Ieng Sary were top-level officials of a genocidal regime. They knew what was happening in Pol Pot's Cambodia. Along with Nuon Chea, Ta Mok, Ke Pauk and Deuch, they should be charged with genocide and other crimes against humanity. Errors of fact and law should not obstruct justice for their victims.
Ben Kiernan is Professor of History and Director of the Genocide Studies Programme at Yale University, and author of The Pol Pot Regime
(Yale University Press, 1996).