Foreign Policy Blogs

Khmer Rouge Tribunal in Jeopardy

Khmer Rouge Tribunal in JeopardyThe Khmer Rouge was an extremist Communist power that was the ruling party, under Pol Pot, in Cambodia from 1975-1979. The Khmer Rouge sought to establish a "New People" through isolation from outside influence. They tried to exploit communist ideals to create a classless society by way of an agrarian utopia through isolation, hard labor, and extermination. Following a Vietnamese ouster, the Khmer Rouge leaders were accused of the torture, starvation, and mass slaughter of over 1.7 million Cambodians, or nearly a quarter of the country's population. Many of the key former leaders of the Khmer Rouge, including Pol Pot, have died and many are in their late 70's. Only one, however, Kang Kek Ieu ("Duch"), chief executioner for the Khmer Rouge, is in custody.

Then UN Secretary General Kofi Annan initiated an examination to prosecute the leaders of the Khmer Rouge, and in 1999, a bill was introduced in Cambodia to establish a mixed tribunal system there. The Khmer Rouge Tribunal commingles domestic law with international customs and treaties. For example, the definition of genocide has been altered according to the Khmer Rouge Statute, and does not correlate to the Genocide Convention per se. The Tribunal also prohibits foreigners from addressing the court, and only advises international criminal standards if there is a gap in existing Cambodian law.

There have been many obstacles to this tribunal and its fate hangs in the balance. There have been contentions from the Cambodians regarding an understanding of the intent of the Tribunal system, as well as the scope of indictments and the use of foreign counsel. The Cambodians are accused of attempting to limit the scope of the investigation and retain complete autonomy over the system. There have also been allegations questioning the independence and aptitude of Cambodian legal professionals. According to an article by The Guardian, an investigative judge involved with the process has stated that "if new rules are not adopted we will not go forward because it would be useless. Then we would have to examine the possibility of the international judges asking the UN to withdraw the whole process. It's now or never". Thirty years after the atrocities, it appears that justice is on the verge of abandonment.

The mixed tribunal system raises many questions. According to the rules of the International Criminal Court, prosecution cannot proceed without invitation, and invokes a "principle of complimentarity", which states that the ICC compliments a national system and does not replace that system. However, the ICC only holds jurisdiction over cases occurring after its establishment. Furthermore, mixed tribunals are not Security Council derived, but are the results of negotiations between states and the UN. While this system leaves the autonomous entity of the nation state in tact and coordinates with international standards, the logistics may prove overly burdensome, as in the case of the Khmer Rouge.

Yale has an excellent timeline of the Cambodian war crimes regime here
The website for the Extraordinary Chambers in the Courts of Cambodia is here
The United Nations Assistance to the Khmer Rouge Trials home page is here
The Guardian UK article is here
And National Public Radio has commentary here



Daniel Graeber

Daniel Graeber is a writer for United Press International covering Iraq, Afghanistan and the broader Levant. He has published works on international and constitutional law pertaining to US terrorism cases and on child soldiers. His first major work, entitled The United States and Israel: The Implications of Alignment, is featured in the text, Strategic Interests in the Middle East: Opposition or Support for US Foreign Policy. He holds a MA in Diplomacy and International Conflict Management from Norwich University, where his focus was international relations theory, international law, and the role of non-state actors.

Areas of Focus:International law; Middle East; Government and Politics; non-state actors