Just
before Christmas 1975, I drove east from Bangkok a couple of hundred
miles to Thailands border with Cambodia. It was some eight
months since the Khmer Rouge Communists had won power in Cambodia,
defeating the U.S.-backed government of Gen. Lon Nol.
Since then the Khmer Rouge had expelled all Westerners (and most
other foreigners), emptied all the towns of people, and embarked
on a radical Maoist experiment to return the country to an autarchic
preindustrial age.
The
only witnesses of the terror which this plan involved were those
refugees who had managed to make it to the Thai border. (Those who
reached Vietnam were kept silent by the Vietnamese Communists, still
at that stage allied to the Khmer Rouge.)
The refugees I met in a United Nations High Commissioner for Refugees
(UNHCR) camp at the border town of Aranyaprathet all had horrible
tales to tell. They spoke of Khmer Rouge cadres beating babies to
death against trees, of any adult suspected of ties to the old regime
being clubbed to death or shot, of starvation and total lack of
medical care, of men with glasses being killed because they were
intellectuals. It was absolutely clear to me that these
refugees were telling the truth. History shows that refugees usually
do. Less clear at that time was why the Khmer Rouge were behaving
in such an atrocious way.
The killing continued and even intensified over the next three-and-a-half
years. No intervention was attempted to stop it. When U.S. Senator
George McGovern proposed a military intervention in the name of
protecting humanity, he was mocked.
At the end of 1978, after perhaps 1.5 to 2 million of the 7 million
people in Cambodia had died, the Khmer Rouge were overthrown by
their erstwhile Vietnamese allies. Hanoi installed instead a client
Communist regime. Its policies can in no way be compared to those
of the Khmer Rouge, but it was a brutal one party system nonetheless.
In 1980 I visited Cambodia and was taken to a mass grave outside
Phnom Penh where victims of the Khmer Rouge terror were buried.
These people had been clubbed to death; their hands were still tied,
the skulls were bashed in, and some of the bones still had putrid
flesh clinging to them.
I had heard about such mass graves since childhoodmy father
was the chief British prosecutor at Nuremberg and one of my earliest
memories is of listening to recordings of his speeches for the prosecution.
In one he quoted the terrible atrocities seen at a grave in a place
called Dubno. The images of families of all ages herded towards
pits where SS men smoking cigarettes were waiting to shoot them
made a lifelong impression on me. Obviously I had hoped never to
see such sights myself. But in Cambodia I did.
Since the overthrow of the Khmer Rouge no real effort has been made
to bring the Khmer Rouge leaders to justice. In summer 1979 the
Vietnamese staged a show trial of the leaders in absentiait
was a farce. Since then there has been no successful effort to bring
the Khmer Rouge to justice, in part for political reasons.
The question is with what precise crimes they should be charged.
Since the majority of their victims were other Cambodians, the Genocide
Convention on its face probably does not apply to the majority of
these killings, and this has been the predominant view within the
international legal community until recently. However, there is
prima facie evidence that they assaulted in particular such ethnic
and religious groups as the Cham, the Vietnamese, and the Buddhist
monkhood. These attacks would probably meet the standard in the
Genocide Convention of action with an intent to destroy in
whole or in part these groups.
Crimes against humanity
have been linked to armed conflict, whether internal or international,
but there is an expanding body of opinion which suggests that under
international law this need not always be so and that large-scale
killings can constitute crimes against humanity even in the absence
of armed conflict. The International Tribunal for the Former Yugoslavia
has ruled that crimes against humanity need have no link to armed
conflict, and the 1998 Rome Statute of the International Criminal
Court makes no reference to a link. A State Department study in
1995 concluded that the Khmer Rouge could be tried for crimes against
humanity, and the United States and other governments attempted
unsuccessfully in 1998 to bring Pol Pot to trial shortly before
his death.
The Khmer Rouges systematic murder, extermination, unacceptable
forced labor, torture, forcible transfers of populationall
provide prima facie evidence of massive persecutions. A prosecution
of the Khmer Rouge for crimes against humanity would likely feature
charges of persecution as well as extermination and murder at its
center. Nuremberg and subsequent tribunals determined the following
acts to constitute elements in persecution: deprivations of the
rights of citizenship, to teach, to practice professions, to obtain
education, and to marry freely; arrest and confinement, beatings,
mutilation, torture, confiscation of property; deportation to ghettos,
slave labor, and extermination; plunder and destruction of businesses
as a means of terror or related to other violence; deprivation of
fair trial rights; a collective fine, seizure of assets, creation
of ghettos, forcing the wearing of yellow stars, boycott of businesses,
preaching hatred, and incitement to murder and extermination.
The 1998 Rome Statute for the International Criminal Court includes
persecution among listed crimes against humanity and defines it
as the intentional and severe deprivation of fundamental rights
contrary to international law by reason of the identity of the group
or collectivity. The statute proscribes persecution
against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender, or other grounds
that are universally recognized as impermissible under international
law, in connection with any other act referred to in this paragraph
[on crimes against humanity] or any other crime within the jurisdiction
of the court. A crime against humanity, according to the statute,
must be committed as part of a widespread or systematic attack.
Until now there has been no accountability in Cambodia at all. Even
though it is almost twenty years since they were overthrown and
further abuses have since been committed against the Cambodian people,
the crimes of the Khmer Rouge are without parallel. Peace and justice
go hand in hand. There is still no real peace in Cambodia; one reason
is that a culture of impunity has developed there as a result of
the total lack of accountability.
Nuremberg embodied the rhetoric of progress. The judgment of Nuremberg
was grasped, in Rebecca Wests words, as a sort of legalistic
prayer that the Kingdom of Heaven should be with us.
It was predictable that that prayer would not be fulfilled. But
even when the prescriptions laid down at Nuremberg are ignored as
cruelly as they have been in the last fifty years, they have not
been forgotten. Now, perhaps, with the creation of the international
court in Rome, they will be put into practice once again. In Cambodia
as well as in Bosnia and Rwanda, the atrocities of the recent past
need to be examined.
(See genocide.)

|