Trial of Khmer Rouge leaders

By Myint Zan

After at least five years of haggling, negotiations and preparation, three of the top Khmer Rouge leaders, who were in positions of power in what was then called the Democratic Kampuchea from April 1975 to January 1979, have finally been being put on trial in Phnom Penh, Cambodia.

A user of Facebook in reposting a news item about the start of the trials made a “simple statement:” “We will never know why they did it.” In my view, the issue in the trials is primarily not and should not be “why” yet this why issue is worth addressing if not in the trial then as a matter of personal comment.

The main factual and legal issues would be (1) to recount and record the past atrocities in the context of a trial and (2) to determine the guilt (personally and I am sure to many thousands of Cambodians and non-Cambodians alike it would be very hard to attribute “innocence” to the defendants) but let's for formality and procedural fairness sake state as “guilt or innocence” of the defendants. Perhaps I am being fastidious when I wrote “guilt or innocence” but it is if not a formal legal pre-requisite then advisable to do so even in an article.

Without being banal (see below) the issue of why the Khmer Rouge leaders “did” what they allegedly had done is mainly a philosophical, perhaps even an epistemological issue. It is not an ontological issue though since the evidence of the atrocities, crimes against humanity and yes genocide that happened in Democratic Kampuchea is overwhelming. Indeed, the legal issue would be whether or not the top Khmer Rouge leaders authorized these crimes including crimes against humanity and genocide and whether legal responsibility be attributed to them ― whether they are guilty of the charges or not.

The issue of why can be said to be covered in a major trial that occurred 50 years ago in 1961 ― the trial of Adolf Eichmann in Israel. The late Hannah Arendt attended the trial of Eichmann and later published a book in Jerusalem: “The Banality of Evil.” The book can be viewed as a psychological and philosophical attempt, in part, at addressing the why question concerning the “Final Solution” initiated and implanted during the Nazi regime. Perhaps ― but perhaps not ― such a philosophical analysis which addresses these issues from observers of the Khmer Rouge trials which have just started may be forthcoming later.

I have read an academic article which tries to address the “why” question vis-a-vis the atrocities of the Khmer Rouge. It attributes the blame or at least the causation of what can be described as the Cambodian genocide on the extreme application of Maoist ideology by the Khmer Rouge. However about 10 years before the atrocities in Cambodia (1975-78) an admittedly or arguably lesser scale of such atrocities happened in Indonesia where up to 800,000 alleged communists, mainly Indonesian Muslims, were killed during the period from 1965 to 1967.

One could not blame or attribute these Indonesian killings to “Maoist” ideology. Instead it is strongly arguable that anti-communist or anti-Maoist ideology that motivates those crimes. None of the top leaders who could be said to have directed or caused these mass killings in Indonesia during the period of 1975 to 1979 have been put on trial.

This fact does not detract from both the legal necessity and moral imperative of holding these former Khmer Rouge leaders on trial. To paraphrase philosopher Thomas Nagel even widespread knowledge of crimes of such proportions that had happened in Democratic Kampuchea is neither sufficient nor adequate from historical, moral and legal perspectives.

There must also be (legal) acknowledgment if possible by the perpetrators and if not at least a formal attribution of legal responsibility by a properly constituted court. And though there are flaws in the process, including the inordinate delays in bringing the Khmer Rouge leaders to trial, the start of these trials is indeed a positive step both morally and legally.

Dr. Myint Zan is an associate professor, School of Law at Multimedia University in Malacca, Malaysia. Reach the writer at myintzan@yahoo.com.au.