I INTRODUCTION
The transitional courts and tribunals discussed in the last chapter exhibited an expressive surplus as a consequence of the dominance of the international in terms of their composition, applicable law and procedure. This chapter introduces the Extraordinary Chambers in the Courts of Cambodia (ECCC), an internationalised court established to try leaders and those most responsible for crimes of mass atrocity under the government of Democratic Kampuchea, known as the Khmer Rouge regime, which ruled Cambodia from 17 April 1975 to 7 January 1979.
The chapter explores the background to the creation of the ECCC. I investigate how Cambodia’s political culture influenced the negotiations for creation of the ECCC and the form the Court ultimately acquired. After Cambodia secured independence from France in 1953, a complex mix of national and geopolitical factors determined the course its national governments would take. Those factors compromised law and justice in Cambodia and preserved a place in Cambodian society for the Khmer Rouge long after the demise of the government of Democratic Kampuchea. The longevity of the Khmer Rouge shaped the negotiations for the Agreement between the Royal Government of Cambodia and the United Nations to create the ECCC. The Cambodian government’s insistence upon locating the ECCC in Cambodia within the national court system, and majority control of the operations of the Court produced an idiosyncratic and controversial Agreement.
I argue that the assertion of sovereignty by Cambodia over the prosecution of Khmer Rouge crimes challenged the expressivism of internationally controlled transitional trials. However, the risk taken by UN in supporting the unorthodox court was one that may have shifted the theoretical balance of the transitional trial from the expressive to the communicative.
II POLITICAL CULTURE IN CAMBODIA AND REALPOLITIK
From their ancient origins as an animistic, subsistence society, the Khmer people of Cambodia endured many political transformations. The language of the Khmer peasant, which belongs to the family of languages known as Mon-Khmer of Southeast Asia, survived as the national tongue.1 Cambodia’s predominantly rural majority accommodated each
political transformation due to an abiding cultural acceptance of subordination in exchange for protection from governing elites so that crops could be harvested and family ties maintained.2 The continuity of kinship ties and connection to the land, even if subject to the
exigencies of patron-client relationships, sustained a sense of Khmer identity despite the fall of the Angkorean Empire, loss of Cambodian territory to Thailand and Vietnam, and subjection to French colonial power (1864–1954).3
The presence of a righteous ruler at the apex of a moral hierarchy underpinned the Cambodian conception of social order, albeit subject to cyclical change under Buddhist philosophy.4
However, Cambodia’s culture and traditions masked fear of territorial encroachment— the possibility of imminent extinction, and the sense of racial superiority. A long line of despotic rulers capitalised on these factors for political gain.5
1 David Chandler, History of Cambodia (4th ed, Westview Press, 2008) 13-14. 2 Ibid 3, 171-173.
3 Patron-client groupings and customs were characteristic of the hierarchical political cultures of the
Hinduised kingdoms of Southeast Asia. Within such cultures ‘neither equality of opportunity nor equality of attainment represented predominant social values or expected outcomes for the majority of citizens.’ Through patron-client groupings wealth was redistributed and ‘patrons were expected to lead, teach, educate, and provide for their clients.’ Karl D. Jackson, ‘Introduction: The Khmer Rouge in Context’ Jackson Karl D. (ed),
Cambodia 1975-1978: Rendezvous with Death (Princeton University, 1986) 3, 5. In addition, ‘politics in the society was largely a competition, not between ideologies, but among patron-client groupings, each of which was bound together by the sinews of personal reciprocity.’ Ibid 5. Ledgerwood noted that in Cambodian villages from Buddhist times ‘the basis for the patron’s power is at least in part a moral authority …often understood in Buddhist terms. … Bonds within the communities became ‘moral responsibilities and
obligations rather than mere economic exchanges’ [and] ‘reciprocity between patrons and clients [constitute] key social bonds that create community.’ Judy Ledgerwood and John Vijghen, ‘Decision-Making in Rural Villages’ Judy Ledgerwood (ed), Cambodia Emerges from the Past: Eight Essays (Center for Southeast Asian Studies, Northern Illinois University, 2002) 109, 115.
4 Judy Ledgerwood, ‘Ritual in 1990 Cambodian Political Theatre’ Anne Hansen and Judy Ledgerwood (eds), At the Edge of the Forest: Essays on Cambodia, History and Narrative in Honor of David Chandler
(Southeast Asia Program, Cornell University, 2008) 195, 197.
5 Elizabeth Becker, When the War was Over: the Voices of Cambodia’s Revolution and its People (Simon &
In the 20th century Cambodia’s feudal hierarchies were challenged by militant nationalist
movements to oust the French colonial power, and the rise of communism in Southeast Asia. In Cambodia, the nationalist Khmer Issarak movement against French rule gradually became allied to the insurgent Viet Minh communist resistance in Vietnam during the First Indochina War (1946–1954).6 In 1951, the Khmer People’s Revolutionary Party (KPRP) was formed
under the sponsorship of the Vietnamese communist movement. The KPRP eventually gained the ascendency over the more democratic Issarak nationalists.7
Against the background of war between France and Vietnam and the anti-royalist sentiment of the communists, the Cambodian monarch, King Norodom Sihanouk, negotiated partial independence from France in October 1953.8 In 1954 at the Geneva Conference, following
the defeat of France by the Viet Minh forces, Cambodia secured full independence under the monarch.9
However, the end of French colonial rule in Indochina was followed by the Vietnam War (1960–1975) which enmeshed Cambodia in a geopolitical web of conflict. The war to remove the French colonial power and to end United States intervention in Vietnam had united traditional regional enemies. However, it also froze long-standing hostility over territorial claims between China and Vietnam, and Cambodia and Vietnam.10 These complicated the
intense national political rivalries within Cambodia after independence and led to armed struggle against the Cambodian government, and eventual civil war.
A Royalist Rule and Realpolitik
In 1955, prior to the national election, Sihanouk abdicated and began his personal political crusade. His movement, known as the Sangkum Reastr Niyum (Popular Socialist
6 Ben Kiernan, How Pol Pot Came to Power: Colonialism, Nationalism, and Communism in Cambodia, 1930- 1975 (Yale University Press, 2nd ed, 2004) xx.
7 Chandler above n 1, 222. 8 Chandler above n 1, 227. 9 Kiernan above n 5, xxi.
Community), stood for royalist, Buddhist socialism without class conflict.11 Francophile in
orientation, Sihanouk placed himself in the middle of the pluralist political spectrum introduced by the French between the radical pro-communist Krom Pracheachon Party, whom he dubbed the red Khmer (Khmer Rouges) and the Democrats (blue Khmer). He saw himself as the white Khmer; his party was conservative and aligned with the ancient Khmer respect for royalty.12
Sihanouk modernised the Cambodian economy, building a commercial sector comprised largely of Chinese businesses and established a trade-based market economy from the capital, Phnom Penh. For the first time an urban Khmer population developed.13 With foreign aid
from France, the United States and the Sino-Soviet power block, he invested extensively in educational infrastructure, hospitals, public transportation and the arts. He was extremely popular among the Cambodian peasantry who saw him not only as royalty but as the personification of Cambodia itself.14 Sihanouk was criticised by his political opponents for
condoning inequity and corruption throughout what became effective monopoly rule for fifteen years after independence. His populist movement overcame opposition by intimidation, violence and propaganda. Gottesman argued that Sihanouk’s style of government and campaigning became the model for the national political power struggles that followed the Cambodian revolution of 1975–1979.15 However, Sihanouk could not
control the external events that embroiled Cambodia in the Vietnam War as Cold War tensions played out in Southeast Asia.
While Sihanouk initially asserted Cambodian neutrality in the Vietnam War, he subsequently allowed North Vietnam to establish bases in Cambodia to feed supply lines to their troops in South Vietnam.16 From 1965, after American troops landed in South Vietnam, Cambodia
was destabilised by intense aerial bombardment in the region of the border with South
11 Michael Vickery, Cambodia 1975-1982 (South End Press, 1984) 22. 12 Chandler above n 1, 240; Vickery above n 10, 22.
13 Vickery above n 10, 18.
14 Gottesman, Evan, Cambodia after the Khmer Rouge: Inside the Politics of Nation Building (Yale
University Press, 2003) 18.
15 Ibid.
Vietnam. As North Vietnamese National Liberation Front (NLF) troops sought refuge and supplies direct from Cambodian peasants, government tax revenues and exports were affected.17 In 1967, the Cambodian government faced a serious peasant revolt, known as the
Samlaut Uprising, against action to control the price of rice in Battambang. The riots were attributed to local communist dissidents and spread to other villages. Sihanouk, already cracking down on suspected communist opposition in Phnom Penh, was then perceived as vulnerable to a communist threat by some government members.18
Further destabilisation occurred from 18 March 1969 as a result of the massive United States B52 bombing campaign (code named ‘Menu’) of bases established in Cambodia by North Vietnam.19 The bombing of Cambodia continued until August 1973, inflicting great loss of
life conservatively estimated at 600,000 and producing refugee contingents in multiples of that figure to urban centres, particularly Phnom Penh.20
Sihanouk’s alignment with the North Vietnamese blocked the Sino-Cambodian commercial sector from the South East Asian economic boom.21 Although Sihanouk renewed diplomatic
relations with the United States in 1969, the Phnom Penh commercial elite resolved to move against him as the economy weakened, social unrest increased and corruption in government ranks grew. On 17 March 1970, Sihanouk was ousted in a ‘bloodless coup’ led by his Prime Minister Lon Nol, who then formed a new government, the Khmer Republic.22 The United
States supported the Lon Nol regime and they became allies in an offensive to remove Vietnamese forces and citizens from Cambodia.23 Sihanouk in turn made an alliance with the
17 Ibid. 18 Ibid 82.
19 William Shawcross, Sideshow: Kissinger, Nixon and the Destruction of Cambodia (Andre Deutsch, 1979.)
28-33.
20 Aaron Buckley, ‘The Conflict in Cambodia and Post-Conflict Justice’ in M. Cherif Bassiouni (ed), Post- Conflict Justice (Transnational Publishers, 2002) 635, 637 citing Christopher Hitchens, The Trial of Henry Kissinger (Verso, 2001) 35.
21 Chandler above n 16, 87. 22 Ibid 84.
growing communist Khmer Rouge insurgency in Cambodia and secured support from North Vietnam and China.24
B The Rise of the Khmer Rouge
The Khmer Rouge were urban Cambodian communists influenced by the ideas of an elite group of Khmer students who had studied in France during the 1950s, where they participated in a Marxist Study Circle, in Paris. The faction included Saloth Sar, who became known as Pol Pot, Ieng Sary, Khieu Thirith and Khieu Samphan. They were acquainted with the French Communist Party and adhered to a mix of radical political theory derived from the work of Fanon, Amin, Stalin, Marx and Mao.25 On their return to Cambodia this elite group became
teachers in formal positions, but also informally through public discussion groups and seminars reminiscent of their Paris experience.26 Their intellectual approach attracted monks,
students, schoolteachers and members of the new class of urban workers to an ideology which condemned Sihanouk’s feudalist autocracy as in league with foreign capitalist elites.27 In this
way they offered an indigenous revolutionary path distinct from the militaristic Vietnamese approach that had dominated Cambodian communism.
By 1966, the new communist faction wrested the party from Vietnamese influence and changed its name to the Communist Party of Kampuchea (CPK). Following the Samlaut uprising the CPK leadership fled the capital as Sihanouk crushed their urban networks.28
From that time Pol Pot, Ieng Sary, Khieu Samphan and other party members moved to the
24 Ibid.
25 Karl D Jackson, ‘Intellectual Origins of the Khmer Rouge’ in Karl D. Jackson (ed), Cambodia 1975-1978: Rendezvous with Death (Princeton University Press, 1989) 241, 250.
26Saloth Sar taught French, history, geography and civics at a private college, Chamraon Vichea
(‘Progressive Knowledge’) in Phnom Penh after marrying Khieu Ponnary, sister of Khieu Thirith in 1956. See Chandler above n 15, 52. Khieu Samphan, known as professor of political economics, taught at a private college, the Kamputh Bot, and was editor of the Observateur, a review espousing progressive political views. See Ponchaud, Francois, Cambodia: Year Zero (Reinhart and Winston, 1978) 159; Ieng Sarymarried Khieu Thirth in 1953. On his return to Cambodia in 1957 he became a teacher of history and geography at
Kampuchea bot High school until 1963. Thirithtaught English literature at the Norodom Lycée. Khieu Ponnarytaught Cambodian literature at the Lycée Sisowath.
27 Chandler above n 16, 83. 28 Ibid 84.
North eastern provinces of Cambodia, adopting a policy of armed struggle against the Phnom Penh government.29
The provinces were populated by animistic tribal peoples and Buddhist peasants already opposed to the government’s programs of roads, rubber plantations and timber harvesting in their area, and so were initially receptive to the new revolutionaries.30 However, moving from
village to village, the Khmer Rouge terrorised inhabitants by killing up to 10 people per village, purging commune or village chiefs, and appointing revolutionary leaders to take their place. The murderous tactics used in the provinces became the hallmark of the Khmer Rouge during the decades that followed.31
Pol Pot and Ieng Sary drew up a plan for the zoning of the country into administrative and military sectors under the revolutionary government they envisioned. By 1970, their growing insurgent forces, from bases in the northeast and northwest, occupied or controlled nearly a fifth of Cambodian territory, albeit without military support from the North Vietnamese, who viewed the Khmer communist role solely as maintaining supply lines through Cambodia to their forces in South Vietnam.32
Ultimately, the CPK path to power was fostered by large swathes of village populations swelling their ranks as the Vietnam War spilled over into Cambodia. Kiernan has chronicled the flood of Khmer and Vietnamese refugees fleeing South Vietnam into Cambodia as the United States intervention escalated the Vietnam War.33 In May 1970, United States troops
invaded Cambodia in pursuit of Vietnamese communist forces as the bombing of the countryside continued.34 The devastation, dislocation and massive loss of Cambodian civilian
lives made surviving villagers easy prey for the CPK, whose propaganda condemned the United States imperialists and the government for what was happening. Many were recruited
29Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135 18 February 1999 UN Doc. A/53/850-S1999/231 (15 March 1999) [Group of Experts Report] [14].
30 Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Praeger Publishers, 2005)
5.
31 Ibid.
32 Chandler above n 16, 86-88. 33 Kiernan above n 6, 350-371.
to CPK ranks and indoctrinated in its network of training camps. Radicalised youths became the CPK’s agents of social change under a totalitarian ideology.35 From 1974, refugees
fleeing the southeast of Cambodia into Vietnam and other areas spoke of the climate of fear engendered by the growing rule by terror at the hands of fanatical youths. There were also numerous media reports of Khmer Rouge brutality in other parts of the country including reports of executions for infringement of ‘reconstructing’ processes in the camps.36
The CPK also profited militarily from corruption among Lon Nol’s army officers who used their positions to amass wealth by devising schemes to sell American armaments.37 This
included funnelling ammunition to CPK forces which grew in strength as a result. Ammunition was vital because the North Vietnamese communists remained unwilling to arm their Cambodian comrades. By 1974, with increased military power the Khmer Rouge abandoned the fiction of a united national front with the exiled Sihanouk. They accused him of ‘living too long in comfort in Peking and of supporting the hated Vietnamese.’38
In April 1975, the Khmer Rouge army of 60,000 easily defeated Lon Nol’s forces from whom American military assistance had by then been totally withdrawn. With the foreign forces evacuated, the Khmer Rouge filled the power vacuum in Cambodia. After taking Phnom Penh on 17 April 1975 they began to implement their revolutionary agenda for Cambodia.39
C Cambodia under Democratic Kampuchea
Suspicion of Vietnamese intentions towards Cambodia as the Vietnam War ended informed Khmer Rouge policies from the outset. The country was blockaded from all foreign influence, except that of Khmer Rouge allies, China and North Korea. The CPK declared a national policy of complete independence and self-reliance.40 An offer of reparations from the United
35 Etcheson above n 30, 321. 36 Shawcross above n 19, 321-322.
37 Chandler above n 1, 252; Shawcross above n 19, 318. 38 Shawcross above n 19, 321.
39 Group of Experts Report above n 29, [14].
40 Karl D. Jackson, ‘The Ideology of Total Revolution’ in Karl D. Jackson (ed), Cambodia 1975-1978: Rendezvous with Death (Princeton University, 1989) 37, 41-45.
States and international aid in the wake of the massive carnage wrought by years of extensive bombing and civil war was refused.41 Instead, the Khmer Rouge relied on the rhetoric of
moral purity to distinguish themselves from their predecessors and justify radical political action to deconstruct Cambodian society. Proclamations through radio broadcasts announced the new government’s plans to restore the true national spirit and identity of Cambodians by clearing the society of the corruption of the Lon Nol regime and the decadence of American imperialism.42
In the week following the seizure of Phnom Penh, the new government forced two to three million people from the cities and towns into the countryside to live and work in regional collectives. Many thousands died from lack of food, water and medical assistance during forced marches to CPK-controlled administrative or functional units.43
Forced labour and inhumane living conditions characterised life in the cooperatives. Under armed supervision, people were also forced to work on large-scale infrastructure construction projects in work teams for long hours and with meagre food rations. Communal life was highly regulated. Marriages required CPK approval and existing families were broken up. Children were separated from their parents and taught that their first allegiance was to the party apparatus known as ‘Angkar.’44 Proclamations of the CPK assigned mystical status to
Angkar as the all-knowing and supreme Organisation which was transforming Cambodian society.45
Khmer Rouge cadres in the cooperatives re-educated new party members and were responsible for purifying party ranks of potential traitors. Quinn concluded from accounts of those with direct experience of the camp leaders, referred to as chlorbs (those who ensure security), that Pol Pot and CPK leaders relied on the youngest and least literate elements of
41 Ibid 45.
42 Alexander Hinton, ‘Songs at the Edge of Democratic Kampuchea’ in Anne Hansen, and Judy Ledgerwood,
(eds), At The Edge of the Forest: Essays on Cambodia, History and Narrative in Honor of David Chandler
(SEAP, Cornell University 2008) 71, 78.
43 Group of Exports Report above n 29, [17]. 44 Hinton above n 42, 79.
Cambodian society to implement their revolutionary agenda. Incapable of discussion with their older and more educated charges, with little stake in the old society and shaped themselves by strict indoctrination in the pre-revolutionary years, the chlorbs used terror, violence and death to satisfy their superiors who had given them status and power in the new