Christopher G. Moore
At 9.00 a.m., Monday, 21 November 2011 the beige curtains were slowly peeled back before an audience of roughly six hundred people. The moment was like something out of The Wizard of Oz: the expectation of what lies behind the levers of power inevitably results in disappointment. Three men in their eighties sat on the right side of the chambers. Each of the trio was charged with crimes against humanity, genocide, and violations of the Geneva Convention.
Along with Pol Pot, these men had been top Khmer Rouge policymakers. As the political architects of death that defined the Khmer Rouge, they were on trial before a court of law. Seated with the accused, their lawyers, dressed in black gowns, listened to the charges against their clients. Uniformed security personnel kept the accused under a watchful eye.
At 9.05 a.m., everyone on both sides of the glass enclosure stood as seven robed judges filed in and took their places on the bench. Four of the judges were Cambodian; the remaining three were from New Zealand, Austria and France. As the court was called to order, everyone in the court and gallery took their seats. Case 002 had commenced. History was being made.
As law professor and lawyer, I have experienced the ritual of courtrooms in Canada, the United States, England, Malaysia and Thailand, with the opposing counsel at their tables, the judges on the bench and the accused in the dock. Courtrooms are a form of ancient theatre, where the players have defined roles and the procedures are formal and the decor somber. Objective, fair, rational decision making is the premise for the deliberation. Justice is the goal. Everyone is assigned a role to play.
The Extraordinary Chambers in Court of Cambodia (ECCC) was specifically built for the trial of the men and women who occupied leadership positions during the Khmer Rouge reign of terror. The courtroom physically separated its participants and the audience with a large wall of glass. Inside the fishbowl were the officials, judges, lawyers and security personnel.
Courts are public storytelling venues. The prosecution carries the burden of telling the story to establish guilt. On this Monday, the prosecution laid out its case. On the Tuesday, they made opening arguments in their own defense. They denied their responsibility for the crimes for which they were accused. As the trial proceeds, they will call witnesses and enter evidence to establish a counter narrative, such as that they acted to repel foreign invaders and to safeguard Cambodia. Over the months and years to follow, the prosecution will introduce evidence supporting the charges. Then, the accused will be given an opportunity to present his or her side of the story. They continue to refuse to accept that they did anything wrong. This should come as no surprise, as it remains consistent with the mindset that formulated the policies for the killing fields.
I hadn’t come here to witness a ‘normal’ murder trial. Not even the trial of the worst serial killer approached the body count attributed to the policies of these three men. Their crimes were an order of magnitude beyond anyone’s experience of homicide cases. The systematic killing saw the scaling of murder to an industrial level. Men, women and children by the truckload were murdered day after day, for years, with no break between the killings.
I observed the accused over the course of the proceedings as the Cambodian co-prosecutor read her opening statement. The audience on opening statement was filled with ordinary Cambodians. They had come to witness the Khmer Rouge leadership, whose policies had visited death upon nearly every Cambodian family. Ordinary Cambodians, students, relatives of victims and survivors all sat side by side in the audience to gaze upon the faces of the men who had unleashed the nightmare. The proceedings were also broadcast throughout Cambodia. People in the remote countryside and in the cities and towns could watch on television or listen on the radio. The entire population of Cambodia finally had their chance after thirty-two years to hear details of the charges laid against the three accused. This was far more than a legal proceeding; it was a place where those who had caused the killing fields would be judged.
Not many ever thought that day would come. Or, if it did, that they would witness the proceedings. Yet, there they were, watching, remembering, coming to terms with the past, and searching the faces of those on the other side of the glass for answers.
The Historical Context
Speaking truth of power has always been a rare event at any time, any place in the world. Those in power like to control information, shape the narrative, and eliminate rival versions of the event. They use their power to control, monitor and supervise the movement of millions of people. Most of the time, such power operates virtually undetected in the background. We hardly notice the way government policies require us to move one way as opposed to another. When power went off the rails, and murder became the policy, the role of Khmer Rouge leaders became a powerful parable of the nightmarish hell that follows.
Those who have sought to challenge authority have historically paid a heavy price. The case of Cambodia illustrates what happens when power and authority become detached and unbounded by normal values, ethics, beliefs or customs, and descends into a vast killing machine.
When I first traveled to Cambodia in March 1993, it was as a correspondent to cover the United Nations Transitional Authority in Cambodia operation. From March 1992 to 24 September 1993, about 22,000 troops from around the world were sent to police a process of monitoring a ceasefire, overseeing elections, and political rehabilitation. Civil war continued, with the Khmer Rouge holed up in the northwestern part of the country near the Thai border. It had been fourteen years since the Khmer Rouge had been chased out of Phnom Penh. While UNTAC forces created a platform of stability essential to rebuild a new government structure and hold elections, the absence of peace, which lasted for years after UNTAC left, worked to the advantage of the Khmer Rouge by delaying their day of reckoning.
What no one envisioned in 1993 was that those responsible for the Khmer Rouge regime would be held accountable for their crimes against humanity and genocide. More than eighteen years after I first reported on the UNTAC operation in Cambodia, I returned to witness the opening day of Case 002 in a hybrid court. The structure, operation and selection of the court personnel is an experiment. The hybrid court is the result of a joint venture, bringing together international judges and principles of laws together with those of Cambodia. The intention was to create a venue that had legitimacy based on universal principles and recognized Cambodian local laws, values, and interest. Legitimacy is the key requirement. The court has to be accepted, not just by the international community, but also by the Cambodians.
The ECCC is UN-supported and funded but established by Cambodian legislation. Can such a hybrid judicial system fulfill its promise to deliver justice that will satisfy the international community without destabilizing the political realities in contemporary Cambodia? The trial is a test of whether such a court structure is workable.
The alternative would have been for the accused to be sent off to the Hague for trial. While that might be a better guarantee to enforce international legal principles, it would have deprived the victims and their families an opportunity to witness the trial first hand, to see for themselves the faces of the accused. Also, the existing court structure has come up with a unique blending of public and private interests. The proceedings are inclusive in a way that hasn’t been attempted before in war crime trials. In Cambodia, thousands of individual civil complainants have lodged their cases with the courts. The civilian cases will proceed along with the public cases before the same panel of judges.
For Cambodians, Case 2 signals a significant political message. High-level government officials can be made to stand trial for certain types of policies. On opening day, that message was graphic: the Khmer Rouge policymakers were in the dock. They had been arrested and detained. They were being compelled to explain their actions and rebut evidence of their crimes. In many parts of the world, Southeast Asia included, the highest levels of political leadership have remained above the law and untouchable. For crimes against humanity and genocide, their traditional shield of immunity had now been stripped away. That is in itself a breathtaking idea for many in Cambodia and the region.
Previously, there had been no mechanism to make the political strongmen yield to principles of fairness, justice and equality. Policies by such leaders were left unchallenged, or those who sought to challenge them were imprisoned, exiled or murdered. On Monday, 21 November, history turned a page on such immunity. Those who were too powerful ever to be questioned before were now standing trial, and facing life sentences if convicted.
The Statistics of Murder
The history of Khmer Rouge is often reduced to a discussion of cold numbers. Pol Pot was Brother No. 1. Nuon Chea, Brother No. 2, was on trial. The designation of the cases brought before the ECCC were talked about in short-hand numerical code: Case 1 resulted in a conviction. Case 2 was for the policymakers. Cases 3 and 4 were for the operational commanders in the field. Journalists, court officials, and judges resort to the number game when discussing the history of the cases.
“It is doubtful 3 and 4 will proceed,” was a frequently voiced opinion among the court officials and journalists I spoke with.
“Number 2 is the essential case as it focuses on those responsible for the Khmer Rouge’s policies.”
The number of people who died during the Khmer Rouge period is estimated to be between 1.7 and 2.2 million people: starvation, disease, exhaustion and execution. Eight hundred thousand are thought to have been executed. Our top mathematicians, like Professor John Paulos of Temple University, warn newspaper readers to be on guard when journalists use big, round numbers. We must be cautious with such numbers, knowing the potential for inaccuracy is great. Let’s be honest. We can’t ever know with certainty the real number of people buried in the thousands of killing fields inside Cambodia.
One court official told me that forced marriages (one of the charges under the category of Crimes against Humanity) numbered in the tens of thousands. Another said there were 350,000 such marriages. There are reports of 250,000 women who were forced into marriage by the Khmer Rouge. The sad reality is no one can verify the numbers or, in the case of forced marriages, the range of numbers at issue.
The overall death toll of Cambodians during this period is another example of a large number range. So many Khmers and ethnic minorities died during the Pol Pot period that the best estimate of death has nearly a 30 per cent margin of error. Another number is that 25 per cent of the Cambodian population during this period lost their lives. Again, no one knows or will ever know the real figure. Numbers are also an abstraction. They represent people and lives but they don’t have faces, families, dreams, hopes, friends. The shadows of the real people are in the distance behind the numbers.
It is useful to place the 25 per cent death rate into a larger, global perspective. Killing 25 per cent of the current population of the United States translates to over 70 million Americans dead, 300 million Chinese and another 300 million Indians, 20 million Germans, 17.5 million Thais, and 47.5 million Brazilians. The numbers are staggering.
The Khmer Rouge targeted the educated urban populations, lawyers, judges, doctors, businessmen, artists, writers, students, teachers, civil servants, intellectuals, and monks. There is a story of a Cambodian along the road when an official car pulled up along side. He used the French greeting ‘bonjour’ to the occupants inside and was greeted back in French. Later, Khmer Rouge cadre arrived, arrested the man and he was subsequently executed. As in George Orwell’s Animal Farm, some animals are more equal than others, some entitled to speak French, and, for others, French was a death sentence. One effect of killing of this class of people was to cripple the ability to create an institutional mechanism to oppose state-sponsored murder. The Khmer Rouge ruthlessly killed all opposition.
The delay in justice is in part explained by the fact that the class of qualified people needed to administer justice was systematically eliminated. It wasn’t only that the justice system collapsed, but also that the network of people who staffed the previous political, social and economic system had been exterminated. To this day, there are very few university-trained judges in Cambodia. The damage done by the Khmer Rouge has not been fully repaired after more than a generation.
The Search for the Truth and Justice
One purpose of this type of international trial for war crimes is to provide psychological aid and comfort to the traumatized survivors. It isn’t simply the guilt of the parties charged, but a way for the victims to come to terms with their past. The big questions are asked during such a trial. Who among the leaders was responsible for the policies and who should be held accountable? What is the truth behind conflicting evidence and what matter of justice is sufficient, given the enormity of the crimes?
On the morning of 21 November, Cambodian co-prosector Chea Leang, a woman with a master’s degree in law from a German university, opened with the case against three senior Khmer Rouge leaders: Nuon Chea, Leng Sary, and Khieu Samphan. Her task was to outline the case to be tried over the next couple of years against the three accused.
A fourth accused, Leng Thirith, wasn’t in the courtroom on Monday. A couple of days earlier, her case had been severed from the other three accused. The ECCC acted on evidence that Leng Thirith suffered from Alzheimer’s disease, which interfered with her ability to participate in the proceedings. Leng Thirith studied English in Paris and was a Shakespearean scholar. In the preliminary proceedings before the start of the trial, Leng Thirith had a history of ranting and raving in a King Lear-like way. Her voice won’t be heard during the current round of trials, given her mentally unstable condition. Whether she will ever be tried is in doubt.
With the exit of Leng Thirith, that left three elderly men (all in their eighties) sitting motionless in the courtroom, listening to the litany of charges against them. It was a chance to look directly at the faces of the men responsible for such death and suffering. They sat passively, expressionless, throughout the opening statement, as they listened to the charges brought against them. There were no outbursts, no signs of emotional reaction. Nuon Chea’s eyes were hidden behind dark sunglasses. Like professional poker players, whatever they felt wasn’t expressed on their faces.
At an ECCC press conference on the Sunday before the trial, court officials estimated the length of the trial to be approximately two years. That is, if everything went according to plan. Add another year for the appeals process, and the final verdict shouldn’t expected before November 2014. Given the age of the trio of accused, it will be a race against time to see justice whether is done before actuarial realities come into play.
Pol Pot, Brother No. 1, died in 1998, a true believer and defiant to the end. It remains to be seen whether his colleagues on trial will take a similar stance on their involvement in policy formulation and implementation, or whether they will, like Duch, the head of the infamous S-21 Security Center, admit their guilt. By day two, it was clear the three men, like Pol Pot, would not admit guilt and would defend their actions.
Destruction of the Family Unit
Women have been relegated to the status of second class citizens in a number of the ten Southeast Asian countries, and Cambodia is no exception. Being a second class citizen is a different category, however, from the status of women who lived under the Khmer Rouge regime.
What made Chea Leang’s opening statement by turns moving, horrifying, and numbing was her overview of the actions of the Khmer Rouge in carrying out the policies of the Pol Pot regime. The fact that a Khmer woman lawyer was chosen to give the opening statement was rich with symbolism. It shouldn’t be lost on those being tried that the Khmer Rouge regime had systematically violated women, destroyed their tradition of marriages, their family structure, forced them to marry, and worked them to death in fields and on infrastructure projects. Given the humiliation and arbitrary treatment, and gross violation of human rights, it was ironic that the Khmer men in the dock should hear the list of their crimes read out by a legally trained Khmer woman. During their reign of terror, she certainly would have been killed.
The image that comes to mind is the youths portrayed in Golding’s novel, Lord of the Flies. The rank and file Khmer Rouge were no more than children. The average age of the Khmer Rouge troops that entered Phnom Penh in 1975 was seventeen years old. Like the children in Lord of the Flies, they carried out their tasks with a rapacious brutality. Children no longer under parental restraint easily fall into systematic, random violence. The three co-defendants were part of an “adult” leadership that, in formulating policies, orchestrated the movement of the rank and file who did the actual killing.
Where were the parents of these Khmer Rouge child soldiers? They were absent.
An unusual but important aspect of the crimes against humanity charge concerns the Khmer Rouge policy of forced marriages. The numbers are again in conflict, but it is not disputed that forced marriage was a widespread practice during the period between 17 April 1975 to 6 January 1979. Using the figure of 250,000 Khmer women who were forced to marry a partner under the policies of the Khmer Rouge regime is an indication of the scope of the policy. Forced marriages were part of a policy to systematically destroy the traditional courtship ritual, as well as directly assault the nature and purpose of the family unit.
Husbands were separated from wives. Children were separated from their parents. Relatives were torn from one another. The Khmer Rouge decided who would marry whom. Often, the bride and groom were complete strangers. Women who resisted state-arranged marriages to strangers were sent off to reeducation camps or executed. Men and women were stripped of their personal choice as to marriage partners or whether they wished to marry at all. Marrying was no longer a private affair; marriage was nationalized. This was an example of Khmer Rouge policy at its most bizarre. Lord of the Flies made a sharp turn and entered into the realm of Huxley’s Brave New World and Atwood’s The Handmaid’s Tale.
Women who refused sexual relations inside a forced marriage were beaten, and, if they persisted, were taken away for summary execution. In one example, a woman who had refused sexual relations after the forced marriage was stripped naked by the Khmer Rouge cadre and her “husband” was required to consummate the marriage in front of them. Khmer Rouge would go around to rough shelters where couples lived and spy on them to determine whether they were having sex.
The purpose of the Khmer Rouge policy was to breed a new generation of ethnically pure Khmer who would be indoctrinated in the ideology of the Khmer Rouge. Forced marriages were part of an overall number of racial policies designed to create a new society. Six hundred fifty of the 3,800 registered victims — who are the civilian parties in the trial — were victims of forced marriages.
Marriage and family are central to Cambodian culture and village life. In ancient times, a prospective husband would be required to live with the prospective wife’s family for three years. During that time, he would be integrated into the family or, if not, he was sent packing. Today, Khmer weddings are lavish three day celebrations. Like elsewhere in Southeast Asia, the culture is conservative about marriage, virginity and rape. None of those values survived the Khmer Rouge forced marriage policy. Marriages were arranged between two strangers with as little as one or two hours’ prior notice.
The Khmer Rouge was obsessed by an ideology of racial purity. The genocide against the Cham and the Vietnamese, also part of Case 002, is another example of the desire to breed, maintain a Khmer, racially pure population and exterminate those who were “impure.” The Khmer Rouge embraced the idea of the “blank slate” and, if they could reset society from year zero, they could write a new vision of life onto the minds of the generation they had created. That blank slate had to be a Khmer one. All other ethnic groups were excluded.
Such policies raise the question as to what psychological damage from abuse or neglect as children explains the Khmer Rouge leadership’s attitude toward women, marriage and family? What combination of personal childhood pain and Marxist ideology was responsible for a policy designed to destroy the traditional family? During the course of the trial, perhaps some evidence will indicate what lay in the background of the accused that convinced them to institute policies that violated every cultural norm, every ethical value, the very network of relatives and family that any ordinary Cambodian would have experienced as a child.
The Failure of Empathy
The crimes outlined on opening day point to a consistent conclusion: the failure of empathy on the part of the leaders meant there was no longer any constraining emotional counterforce to limit how one human being treated another. The ideology of the Khmer Rouge leadership blocked the most natural of human impulses — for persons to place themselves in the situation of another and to experience that person’s emotions as if they were their own. Scientists, such as Frans de Waal, support the idea that empathy is innate. All of us are born with mirror neurons. These neurons trigger an emotional response when, for example, we are a witness to the suffering or pain of another. When we see a sad person, we instinctively feel their sadness.
The Khmer Rouge found a way to disarm the empathy trigger. A cadre that witnessed another’s fear did not seek to reduce it. Those who were the perceived enemies of the state lost their status as human beings and no longer qualified as objects of empathy or sympathy. The other had no purchase over the emotion of the torturer. Or, if there was a slip, and a torturer found himself hesitating, the chances were that he would also be tortured and killed. So, there was an incentive not to have feelings for others. Those who couldn’t turn off that trigger committed suicide or were themselves killed by others who had no problem withholding empathy. It was no surprise to hear the co-prosecutor mention numerous incidents of cannibalism as even the victims facing starvation no longer saw each other as human. There have been reported incidents of Khmer Rouge cadre cutting out the livers of living beings and eating them.
This doesn’t make easy reading. We try to avoid such thoughts. They are too repellent. But, to deny there was a period and time in Cambodia when such things regularly happened won’t be easy, because the evidence will be made public throughout the weeks and months and years ahead.
One of the things this evidence will establish is that, once the empathy light had been extinguished, anything to consolidate power, expand authority, and suppress opposition was justifiable as policy. Making the other party a demon, an outsider, like germs, filth and excrement, made the next step to purify an easy one, the means being torture and murder. What is instinctively abhorrent for most people became mandatory government policy.
The core idea of such a trial is that no ruler or leader anywhere in the world is permitted to disengage the empathy mechanism and send youths on a rampage throughout the population, slaughtering, torturing, and humiliating. No ideology, no belief system, perceived enemies or utopian ideal can justify such policies. A line has been drawn in the sand of what is and is not politically permissible.
Another example of the extreme racial purity policy forms the case of genocide waged against the ethnic minorities, Cham and Vietnamese. If the husband was Khmer, and the wife Cham, the husband would be spared but his wife and children would be executed. Why the children who were half Khmer? On the theory that they suckled milk from an impure mother. And should the husband/father show sadness or remorse, he would be liable to execution.
It was ironic that one of Leng Sary’s lawyers, Michael Karnavas, requested the court to allow his client to be removed from the courtroom. His client suffered pain and would be more comfortable in a room downstairs. The President of the court denied the request. It was a special moment where one of those who had no empathy for others was formally asking for compassion from the court. Khieu Samphan’s French lawyer, Jacques Verges, again without a hint of irony, requested the judges to remember that those on trial were “human beings.” These human beings, who had denied that status to as many as two million of their fellow citizens, were now seeking shelter within the embrace of empathy, asking for refuge in the emotion makes us human — the very emotion their policies sought to dismantle.
The next couple of years are bound to be filled with many such moments of irony.
What are the lessons of the opening day? Hopefully, those who attended, who witnessed in person, watched on TV or listened on the radio, came away with confidence that the story can now be told. It will come out in the open. Those who made the policies are no longer safely tucked behind the walls of their secure villas. They are being held to account. Both the international and Cambodian communities are working together to find a way to mark the legal boundaries as to the policies they tolerate. Animal Farm has been dismantled.
Cambodia, through this trial, is also showing its rules around the world, the limits set on the power any leader can deploy against his own people or others. And, if those constraints are exceeded, such leaders can be brought to account for their policies and actions. Given the unrest and suppression in many places around the world, all eyes should be on Cambodia and the ECCC. A small, war-torn country with a sad, tragic history is giving back to the world the most precious of all human things: the hope for a better, safer and more secure future.
At the end of all of this, someone will one day write the narrative account of how such a regime comes about. It will stand not just as indictment of the Khmer Rouge but of a generation of leaders around the world, who turned the other way when the light of empathy flickered, dimmed and was finally extinguished in Cambodia. They will write it down for future generations, so they can remember things that no person should ever forget.