I have been asked to discuss various models that might be available to address crimes committed by the Khmer Rouge during its murderous reign in the 1970s

Orentlicher, Diane F.

Orentlicher, Diane

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International Criminal Law and the Cambodian Killing Fields

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INTERNATIONAL CRIMINAL LAW AND THECAMBODIAN KILLING FIELDSDiane F. Orentlicher*I have been asked to discuss various models that might be availableto address crimes committed by the Khmer Rouge during its murderousreign in the 1970s. Before turning to these, I would first like to identifyseveral overarching considerations pertinent to the question, which modelis most appropriate for Cambodia?Let me begin by noting a paradox that lies at the heart of the issuesaddressed by this panel. On the one hand, since Nuremberg there hasbeen a general acknowledgment, in principle if not always honored inpractice, that some crimes are of genuinely universal concern andresponsibility. That responsibility is captured by the very name of suchoffenses-"crimes against humanity." This conference, and this panel,affirm the degree to which crimes against the human condition engageinternational regard and responsibility.Yet on the other hand, responses to such crimes must, in ameaningful way, reflect the peculiar social and historical culture of thecountry in which they occurred if the process of accountability is toachieve its central aims. There cannot be a one-size-fits-all response tocrimes against human dignity.Let me elaborate on both points, beginning with the first.International legal responsibility for some offenses is reflected inthe fact that genocide, certain war crimes, and crimes against humanity aresubject to universal jurisdiction. Significantly, too, in a decision renderedon July 11, 1996, the International Court of Justice held that the obligationunder the Genocide Convention to prevent and to punish genocide is notterritorially limited.'* Professor of Law and Director of the War Crimes Research Office at the WashingtonCollege of Law, American University in Washington, D.C.1. The case, brought by Bosnia-Herzegovina against Yugoslavia, alleges that therespondent state committed genocide. In response to Yugoslavia's claim that the Court lackedjurisdiction under the Genocide Convention because the acts allegedly giving rise to responsibilityby Yugoslav authorities occurred in Bosnia, the court wrote: "[T]he rights and obligationsenshrined by the Convention are rights and obligations erga ormnes. The Court notes that theobligation each State thus has to prevent and to punish the crime of genocide is not territoriallylimited by the Convention." Decision on Preliminary Objections, Application of the ConventionILSA Journal of Int'l & Comparative LawThis dimension of international law is deeply rooted in moralobligation. The nature of that responsibility was suggested in a recentarticle in the Washington Post about a lawsuit by a Holocaust survivoragainst Swiss banks. Those banks, the plaintiff alleged, withheld moneydeposited by her father before he fell victim to the Nazi machinery ofdeath. The Post article quotes the plaintiffs husband reading a passagefrom the Talmud, which describes a debate among ancient rabbis: "If amouse steals a piece of cheese and runs into a hole, then who'sresponsible? It's the hole who's responsible. If he didn't have the place tohide it, then he wouldn't steal it." This passage evokes the basic principleunderlying international law's recognition of universal responsibility forassuring that those who commit crimes against humanity are brought to thebar of justice. If a state provides sanctuary to Nazis, it has breached thevow of universal conscience, "Never Again." If the world fails to demandjustice for the sweeping crimes of the Khmer Rouge, it is complicit inthose crimes.Further, by the very nature of crimes against humanity,accountability will come, if at all, only when international society demandsit. The decision of a United States Military Tribunal in Nuremberg isinstructive. "Crimes against humanity are acts committed in the course ofwholesale and systematic violation of life and liberty," the Tribunal wrotein the Ohlendorf case. The Tribunal continued:It is to be observed that insofar as international jurisdictionis concerned, the concept of crimes against humanity doesnot apply to offenses for which the criminal code of anywell-ordered state makes adequate provision. They canonly come within the purview of this basic code ofhumanity because the state involved, owing toindifference, impotency or complicity, has been unable orhas refused to halt the crimes and punish the criminals.But if crimes against humanity engage the responsibility ofinternational society, an effective response must include measures thatmeaningfully reflect the culture and circumstances of the nation thatendured those crimes. In particular, to the extent that the aim of a processof accountability is to inoculate a country like Cambodia against therevival of brutal governance, the most effective approach will reflect thesocial, historical, and legal culture in which the crimes occurred.on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), 1996I.C.J. (July 11).[Vol. 3:705OrentlicherPress accounts of the recent amnesty accorded Ieng Sary suggestthe importance of this issue in. respect of Cambodia. Much of the presscoverage surrounding Ieng Sary's demand for an amnesty suggested thatcriminal prosecution might sound a dissonant chord in CambodianBuddhist culture. For example, in an article on September 8 entitled WhyCambodia May Overlook Its Past, a reporter for the New York Timeswrote:Many Cambodians seem to prefer not to reopen oldwounds, and on the streets of Phnom Penh today peopleseem more eager for peace than for retribution. Thoughhuman rights groups and foreign governments, along witha number of Cambodian public figures, voice dismay at therespectful treatment of Mr. leng Sary, most people hereseem prepared to accept his proposal to forget the past. 'Itdoes not feel good to have people who killed our parentscoming to live with us, but as Buddhists, we are taught notto seek revenge,' said a restaurant owner in Phnom Penh.I cannot say whether, or to what extent, this reporter's accountfairly represents Cambodian views. I have seen and heard other accountsthat give cause to doubt sweeping claims that prosecution of Khmer Rougeatrocities would offend Cambodian values. Notably, when he granted IengSary a royal amnesty at the behest of Cambodia's two Prime Ministers butagainst his own conscience, Prince Sihanouk made plain that such a pardonshould not prevent an international tribunal from prosecuting leng Sary.While Prince Sihanouk of course does not speak for all Cambodians, Isuspect that he speaks for many. Again, I cannot speak with any authorityabout whether prosecutions would, as the Times suggests, comport withCambodian values. My point is simply that, to be effective in inoculatinga society against a recurrence of state violence, a process of accountabilitymust be rooted in that society's culture.Up to a point. We surely would not want to defer to cultural-relativist arguments counseling against accountability when the culture inquestion is one of wholesale impunity. A key aim of trials followingsweeping violations of personal integrity is to help dispel the culture ofimpunity that enabled the crimes to occur. In some respects, then, thedemands of universal justice may in fact require some measure ofmeddling with patterns of national culture.The complex concerns on which I have focused are, as I havesuggested, especially pertinent to the extent that a process of accountabilityseeks to prevent a country from returning to abuses of the past and toadvance reconciliation within a deeply riven nation. But these are not the1997]708 ILSA Journal of Int'l & Comparative Lawonly aims. Consider, for example, the work of the International CriminalTribunal for the former Yugoslavia in The Hague. This Tribunal,established by the United Nations Security Council, seeks not only toestablish a foundation for peace and security in Bosnia, but also tobroadcast a global message: Those anywhere who might in the futurecontemplate crimes against the human condition should think again. Theywill not get away with it.That processes aimed at establishing accountability may havemultiple audiences surely complicates the question, what is the best modelfor a country like Cambodia? Criminal prosecution might, for example,send the strongest message to a global audience, while a more broad-ranging process, like that currently underway in South Africa, might bestpromote the sort of deliberative reflection that enables a brutalized societyto heal.How to reconcile these competing claims presents questions towhich no easy answers are available. I would suggest, however, that wemust take this challenge far more seriously than has heretofore beencommon. Too often, transnational efforts to establish accountability forgross abuses have evinced a tendency to disregard the voices of those mostdirectly concerned.With these general considerations in mind, let me turn now to theprincipal question which I have been asked to address-what models ofaccountability are available in respect of the Cambodian killing fields? Arange of measures are potentially available to address -the crimes of theKhmer Rouge, though it remains doubtful whether any will garner thepolitical support essential to their success.One option is the institution of a contentious case before theInternational Court of Justice. Such a case must be brought againstCambodia, which is a party to the Genocide Convention, by another stateparty. The case would, in essence, allege that the Cambodian governmentbreached its treaty obligation to prevent and punish genocide.The excellent report prepared by Jason Abrams and Steven Ratnerfor the United States Department of State on accountability for KhmerRouge atrocities concluded, however, that this option is improbable forseveral reasons. First, despite diligent efforts, nongovernmentalorganizations have been unable to convince any government to instituteproceedings against Cambodia before the International Court of Justice,Second, with the Khmer Rouge no longer in control of Cambodia'sgovernment, it might not be possible to establish that there is a genuinedispute between a petitioner state and the government of Cambodia.The recent decision of the Cambodian government to grant anamnesty to Ieng Sary might change this legal calculation, establishing a[Vol. 3:705Orentlichergenuine dispute under the Genocide Convention. In particular, a petitionerstate could allege that Cambodia breached its explicit duty under theConvention to punish genocide by granting leng Sary an amnesty. Still, itscarcely seems likely that a state will institute such a case now, when nonecould be found to do so throughout the years when the Khmer Rougeconstituted, or was part of, the internationally recognized government ofCambodia. Further, as the State Department report concludes, even ifsuch a case were instituted and led to a finding that Cambodia hadbreached its obligations under the Genocide Convention, it is by no meansclear that such a judgment would stimulate national prosecutions inCambodia.National prosecutions would, of course, be the response to thosecrimes of the Khmer Rouge constituting genocide that is most consistentwith Cambodia's obligations under the Genocide Convention. But nationalprosecutions against leng Sary are presumably precluded by the recentamnesty, and in any event that amnesty may signal the Cambodiangovernment's general disinclination to institute genocide prosecutionsagainst the Khmer Rouge.Even if these obstacles could be surmounted, Cambodia's nationallegal system is by all accounts in a state of shambles-in no small measurea result of Khmer Rouge policies. International support for nationalprosecutions would therefore be necessary, and also problematic. Thespecter of a clash of legal cultures would loom large over such a venture.Foreign legal advisors assisting Cambodians would surely insist onbenchmarks to measure the success of their efforts and to justify theircontinuing support. But such a process often entails the sort of paternalismthat has been problematic in other contexts, like Ethiopia. Nationalprosecutions underway in Addis Ababa for crimes against humanity havebeen the object of well meaning, but at times counterproductive,international advice. These risks should not deter us from pursuing moreeffective approaches in Cambodia, but should sound a cautionary noteabout how to proceed.As Prince Sihanouk observed, any amnesty conferred byCambodian authorities would not prevent an international tribunal fromprosecuting leng Sary (or others) for the murderous policies of the 1970s.What, then, are the prospects for such a tribunal?It is unlikely that the Security Council would establish an ad hoctribunal for Cambodia's crimes similar to the tribunals it created for theformer Yugoslavia and Rwanda. Both of those tribunals were created asenforcement measures under Chapter VII of the United Nations Charter.As such, they were predicated on Security Council determinations that thesituations in the former Yugoslavia and Rwanda constituted threats to19971 709ILSA Journal of Int'l & Comparative Lawinternational peace and security. Such a finding in respect of Cambodiaseems unlikely, to put it mildly. Further, even if a permanent internationalcriminal court is established, it is unlikely that such a tribunal would haveretroactive jurisdiction.One option that might be available is the establishment of an"international penal tribunal" by states parties to the Genocide Conventionpursuant to article VI of that treaty. Presumably such a tribunal could beestablished by a small number of states. But Cambodia almost surelywould have to agree to cooperate with such a tribunal. In light of therecent amnesty for leng Sary, the present government does not seemdisposed to support such an effort.Another model for establishing accountability for crimes of thepast is through a "truth commission"-a body that attempts to establish acomprehensive and authoritative record of serious abuses committedduring a specific period. In fact, such commissions represent "models"rather than "a model" for accountability, as their mandates, powers, andmodes of operation have varied considerably from one country to another.One of the principal virtues of truth commissions is the extent towhich they can, potentially, engage society in a broadly gauged andbroad-ranging deliberative process about its past. This process is, Ibelieve, essential in securing one of the principal aims of accountability innations recently scourged by crimes against human dignity. Suchcollective deliberation may help strengthen the sinews of civic culture,fostering a deep commitment to personal rights and a demand that they berespected. At the same time, a national truth-telling process provides aframework for healing the wounds of those who endured atrocious crimes.In these and other respects, the process of accountability engendered bytruth commissions tends to be more inclusive than that of criminal trials.One noteworthy process is now underway in South Africa. Toreckon with apartheid-era crimes, the Mandela government has establishedan architecture of accountability that ingeniously facilitates both truth andjustice. To qualify for amnesty for politically-motivated human rightsabuses, potential and actual defendants must fully confess to their role insuch crimes. Even then, amnesty may be denied if the confessor's crimeis deemed disproportionate to its political aim.This approach creates an incentive for human rights violators tocome forward which has been missing in other countries that have recentlyemerged from periods of sweeping abuses, several of which haveestablished truth commissions. Typically, such commissions have failed tobreach the wall of silence surrounding participants in the prior regime'ssystem of abuse. Instead, in Latin America, where the institution of truthcommissions was inaugurated, such initiatives typically have encountered,710 [Vol. 3:705Orentlicherand perhaps helped inspire, a closing of ranks among those who werecomplicit in state-sponsored violence.In South Africa, in contrast, the information obtained from thosewho seek amnesty through confession can lead to prosecution of thosewhom they implicate, while the threat of prosecution may prompt abroader reckoning with the past through an ever-widening circle ofdisclosures. Finally, the amnesty committee's residual power to deny anamnesty may prevent the South African approach from ultimately ratifyingwholesale impunity.The South Africa experience is a model in other respects as well.When South Africans grappled with the question of how to deal withabuses of their past, they received considerable international support in thisdeliberative process, and explored the experiences of other countries, suchas Chile, that had tried to come to terms with their legacy of dictatorship.Ultimately, however, South Africa found its own solution-informed bythe experiences of other nations, but uniquely South African.In conclusion, then, I have tried to suggest that, as we seek to meetour responsibility for enforcing universal conscience, we must recognizethat our charge begins at precisely the place where universal and localvalues converge. To make meaningful the vow "Never Again", theremust be a genuinely global demand for justice in respect of crimes againsthuman conscience. But if this project demands universal engagement, itsbasic themes must be composed, above all, by those who have enduredoffenses against their humanity.1997]

International Criminal Law And The Cambodian Killing Fields

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International Criminal Law And The Cambodian Killing Fields

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