The role, interests, and spirit of the Documentation Center of Cambodia in the Khmer Rouge Tribunal

1. The Documentation Center of Cambodia’s (DC-Cam) birth from the investigation of the crimes committed during the reign of the Khmer Rouge gives obvious grounds for their interest in obtaining justice for their victims through a legitimate, informative, transparent, and internationally recognized tribunal. Their main interest is that a tribunal proceeds so justice can be served so then reconciliation can follow:

“The survivors of the Democratic Kampuchea regime have waited over 25 years for the trials to begin and deserve to see justice done.”[1]

They were grateful for intervention from the UN and cooperation from the Royal Government to proceed with a tribunal, but exposed their main concerns of publicity and transparency in a letter welcoming the Khmer Rouge Tribunal Staff:

“We encourage both the Royal Government and UN to take steps to ensure that the Cambodian people are kept fully informed on all aspects of the tribunal…Thus, the RGC and UN should both publicize the proceedings on the radio, television, and print, and find ways to help average citizens participate in the tribunals through attending trials, public meetings, and other means.”1

“It is not possible to emphasize how important it is that all aspects of the trial proceedings are transparent.”1

The leaders of the DC-Cam are fully aware that Khmer Rouge political influence still lingers and therefore place emphasis on the tribunal being as transparent as possible as to increase its legitimacy:

 “Transparency should begin with the selection of judges and those who will head various offices and departments for the tribunal. If the Cambodian judicial system is to advance and public confidence in it is to grow, the UN and Royal Government must demonstrate that these personnel are selected in a fair and open way, and one that is free from political influence.”1

As stated before, their main interest lies in the establishment of justice and wish for the Royal Government of Cambodia to agree to punish any Khmer Rouge leaders found guilty by this tribunal, and that includes Prince Ieng Sary.

2. DC-Cam’s mission can be illustrated by two simple words: memory, and justice. Justice comes in the form of collecting, cataloguing, and preserving documents and evidence leading to the conviction of Khmer Rouge leaders. Memory comes in the form of using the compiled information to educate and illustrate the era of darkness to future Cambodians, so that past mistakes don’t become future ones. Justice and memory together allow for the chapter of pain to close and yet for the memory to linger so that Cambodia can truly progress to become a more peaceful and prosperous nation.

“A society cannot know itself if it does not have an accurate memory of its own history. Toward this end, DC-Cam is working to reconstruct Cambodia’s modern history, much of which has been obscured by the flames of war and genocide.”2

DC-Cam was created by the Yale Cambodian Genocide Program in 1995. Heading the operation was Mr. Youk Chhang, a survivor of the Khmer Rouge killing fields. It was set up as a non-governmental, non-profit, independent research institute and has gone through great lengths to recover a vast amount of evidence objectively. Obviously there is question of bias when those who are in charge of collecting and protecting the evidence are victims, but it is hard to find someone who was not negatively affected by the Khmer Rouge.3

“Every Cambodian family, from that of the king to that of the poorest peasant, has had at least one member who died or simply disappeared during the Khmer Rouge's reign of terror. Nearly two million people were executed, starved or worked to death, and the legacy of the genocide is still with Cambodia's families today.”4

DC-Cam has no direct connection with the key actors in the conflict other than being born from an American facilitated project, receiving donations from several foreign and domestic parties including the United States Government and the Cambodian Royal Government, and being the victims of Khmer Rouge violent actions.5

3. DC-Cam would cite the norms of justice and basic human rights to justify their position on the tribunal. They would proclaim that humans are born with inherent universal rights of freedom and dignity and that when these rights are hindered, action in the form of justice must be taken. Legitimacy in these norms is universal and has been recognized by the United Nations under the Declaration of Human Rights created in December, 1948.

“Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”6

In the case with the DC-Cam, their fundamental interests of justice and memory match their normative interests of justice and the upholding of basic humanitarian law. I cannot deny that DC-Cam has material interests as well, for they play an incredibly huge role in the collection and preservation of evidence in the tribunal of one of the most horrific atrocities of humanity, giving them power and influence in the domestic and international realm in reference to subjects of genocide. Of course a research institution dedicated to collecting evidence would want a trial to proceed and for information to be published, but their normative interest of justice and human rights runs deep. They were victims, they have seen the horrors of indifferent and violent action first hand, and wish to do all they can to heal past wounds and prevent future ones. Therefore, the norms themselves are the fundamental interests.

4. Ideally for me, humanitarian law should be held above that of sovereignty, when it is absolutely necessary and justly called for. There are crimes and actions that are not acceptable for amnesty and those crimes are exactly the crimes the ICC conducts trials for, which includes; Genocide, Crimes against Humanity, War Crimes, and Crimes of Aggression.[2] Not following the conviction of a perpetrator of such crimes due to amnesty would set back the standards of humanitarian law and diffuse justice, allowing for such horrific atrocities to reoccur. Amnesty international supports this stand in their public statement regarding the creation of a tribunal for the Khmer Rouge in 2003:

“Amnesty International welcomes any steps that ensure that those responsible for the most serious violations of human rights be held to account, provided that this is achieved according to the highest international legal standards...[This] include[s] the exclusion of amnesty or pardon for anyone investigated or convicted for crimes covered by the agreement, a clause which potentially applies to anyone previously granted an amnesty by the Cambodian authorities.”8

Most notably, I would draw attention to the fact that a nation holding a tribunal for such crimes committed by pervious government, which has lingering members in the newly formed government should bring up the question of that states sovereignty. Should a government whose members themselves are guilty of such crimes be given the right to give such pardons? Shouldn’t the initial necessity of the intervention of the international community also bring this question to light?

At the same time, Amnesty and Pardons have historically been successful at diffusing conflict and stopping war. If the international community were to take such action as to officially state that amnesties and pardons can be revoked in international court, amnesties and pardons would loose their effectiveness. There could also be extremely negative repercussions, such as pressure on the part of the nation in question, and other nations who hold sovereignty above all other international law. It is understandable why countries would react in such a way. Many countries themselves have vices and hide behind sovereignty to protect them from taking responsibility for their actions. After all, this is the main reason why it takes so long for the international community to take action for such crimes as genocide. Sovereignty is the ultimate international law to many states whose memory of past eras of imperialistic war and colonization linger. The fear that any nation would even dare to commit such imperialistic actions again gives sovereignty a push above humanitarian law.

Because of these consequences, it makes sense that there is no record of the ICC not respecting amnesties. This also clarifies why the ECCC deliberately avoided the question of sovereignty and amnesty by convicting Prince Ieng Sary of crimes he was not previously pardoned for. I agree with these actions, for no one would like to confront this problem until it is absolutely necessary. But when that time does arise, I hope that humanitarian law will prevail, for I find that this world needs to stand by these universal moral laws to create a more legitimate and peaceful world. How is it that we can hold the citizens of our states to these standards but not the leaders of our nations? Does the international community not fear an upheaval by victims who do not receive justice? Regardless, I hope the international community evolves to raise the standards of humanitarian law so that we can punish and prevent such behaviour from happening again.

The role, interests, and spirit of the Documentation Center of Cambodia in the Khmer Rouge Tribunal

1. The Documentation Center of Cambodia’s (DC-Cam) birth from the investigation of the crimes committed during the reign of the Khmer Rouge gives obvious grounds for their interest in obtaining justice for their victims through a legitimate, informative, transparent, and internationally recognized tribunal. Their main interest is that a tribunal proceeds so justice can be served so then reconciliation can follow:

“The survivors of the Democratic Kampuchea regime have waited over 25 years for the trials to begin and deserve to see justice done.”[1]

They were grateful for intervention from the UN and cooperation from the Royal Government to proceed with a tribunal, but exposed their main concerns of publicity and transparency in a letter welcoming the Khmer Rouge Tribunal Staff:

“We encourage both the Royal Government and UN to take steps to ensure that the Cambodian people are kept fully informed on all aspects of the tribunal…Thus, the RGC and UN should both publicize the proceedings on the radio, television, and print, and find ways to help average citizens participate in the tribunals through attending trials, public meetings, and other means.”1

“It is not possible to emphasize how important it is that all aspects of the trial proceedings are transparent.”1

The leaders of the DC-Cam are fully aware that Khmer Rouge political influence still lingers and therefore place emphasis on the tribunal being as transparent as possible as to increase its legitimacy:

 “Transparency should begin with the selection of judges and those who will head various offices and departments for the tribunal. If the Cambodian judicial system is to advance and public confidence in it is to grow, the UN and Royal Government must demonstrate that these personnel are selected in a fair and open way, and one that is free from political influence.”1

As stated before, their main interest lies in the establishment of justice and wish for the Royal Government of Cambodia to agree to punish any Khmer Rouge leaders found guilty by this tribunal, and that includes Prince Ieng Sary.

2. DC-Cam’s mission can be illustrated by two simple words: memory, and justice. Justice comes in the form of collecting, cataloguing, and preserving documents and evidence leading to the conviction of Khmer Rouge leaders. Memory comes in the form of using the compiled information to educate and illustrate the era of darkness to future Cambodians, so that past mistakes don’t become future ones. Justice and memory together allow for the chapter of pain to close and yet for the memory to linger so that Cambodia can truly progress to become a more peaceful and prosperous nation.

“A society cannot know itself if it does not have an accurate memory of its own history. Toward this end, DC-Cam is working to reconstruct Cambodia’s modern history, much of which has been obscured by the flames of war and genocide.”2

DC-Cam was created by the Yale Cambodian Genocide Program in 1995. Heading the operation was Mr. Youk Chhang, a survivor of the Khmer Rouge killing fields. It was set up as a non-governmental, non-profit, independent research institute and has gone through great lengths to recover a vast amount of evidence objectively. Obviously there is question of bias when those who are in charge of collecting and protecting the evidence are victims, but it is hard to find someone who was not negatively affected by the Khmer Rouge.3

“Every Cambodian family, from that of the king to that of the poorest peasant, has had at least one member who died or simply disappeared during the Khmer Rouge's reign of terror. Nearly two million people were executed, starved or worked to death, and the legacy of the genocide is still with Cambodia's families today.”4

DC-Cam has no direct connection with the key actors in the conflict other than being born from an American facilitated project, receiving donations from several foreign and domestic parties including the United States Government and the Cambodian Royal Government, and being the victims of Khmer Rouge violent actions.5

3. DC-Cam would cite the norms of justice and basic human rights to justify their position on the tribunal. They would proclaim that humans are born with inherent universal rights of freedom and dignity and that when these rights are hindered, action in the form of justice must be taken. Legitimacy in these norms is universal and has been recognized by the United Nations under the Declaration of Human Rights created in December, 1948.

“Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”6

In the case with the DC-Cam, their fundamental interests of justice and memory match their normative interests of justice and the upholding of basic humanitarian law. I cannot deny that DC-Cam has material interests as well, for they play an incredibly huge role in the collection and preservation of evidence in the tribunal of one of the most horrific atrocities of humanity, giving them power and influence in the domestic and international realm in reference to subjects of genocide. Of course a research institution dedicated to collecting evidence would want a trial to proceed and for information to be published, but their normative interest of justice and human rights runs deep. They were victims, they have seen the horrors of indifferent and violent action first hand, and wish to do all they can to heal past wounds and prevent future ones. Therefore, the norms themselves are the fundamental interests.

4. Ideally for me, humanitarian law should be held above that of sovereignty, when it is absolutely necessary and justly called for. There are crimes and actions that are not acceptable for amnesty and those crimes are exactly the crimes the ICC conducts trials for, which includes; Genocide, Crimes against Humanity, War Crimes, and Crimes of Aggression.[2] Not following the conviction of a perpetrator of such crimes due to amnesty would set back the standards of humanitarian law and diffuse justice, allowing for such horrific atrocities to reoccur. Amnesty international supports this stand in their public statement regarding the creation of a tribunal for the Khmer Rouge in 2003:

“Amnesty International welcomes any steps that ensure that those responsible for the most serious violations of human rights be held to account, provided that this is achieved according to the highest international legal standards...[This] include[s] the exclusion of amnesty or pardon for anyone investigated or convicted for crimes covered by the agreement, a clause which potentially applies to anyone previously granted an amnesty by the Cambodian authorities.”8

Most notably, I would draw attention to the fact that a nation holding a tribunal for such crimes committed by pervious government, which has lingering members in the newly formed government should bring up the question of that states sovereignty. Should a government whose members themselves are guilty of such crimes be given the right to give such pardons? Shouldn’t the initial necessity of the intervention of the international community also bring this question to light?

At the same time, Amnesty and Pardons have historically been successful at diffusing conflict and stopping war. If the international community were to take such action as to officially state that amnesties and pardons can be revoked in international court, amnesties and pardons would loose their effectiveness. There could also be extremely negative repercussions, such as pressure on the part of the nation in question, and other nations who hold sovereignty above all other international law. It is understandable why countries would react in such a way. Many countries themselves have vices and hide behind sovereignty to protect them from taking responsibility for their actions. After all, this is the main reason why it takes so long for the international community to take action for such crimes as genocide. Sovereignty is the ultimate international law to many states whose memory of past eras of imperialistic war and colonization linger. The fear that any nation would even dare to commit such imperialistic actions again gives sovereignty a push above humanitarian law.

Because of these consequences, it makes sense that there is no record of the ICC not respecting amnesties. This also clarifies why the ECCC deliberately avoided the question of sovereignty and amnesty by convicting Prince Ieng Sary of crimes he was not previously pardoned for. I agree with these actions, for no one would like to confront this problem until it is absolutely necessary. But when that time does arise, I hope that humanitarian law will prevail, for I find that this world needs to stand by these universal moral laws to create a more legitimate and peaceful world. How is it that we can hold the citizens of our states to these standards but not the leaders of our nations? Does the international community not fear an upheaval by victims who do not receive justice? Regardless, I hope the international community evolves to raise the standards of humanitarian law so that we can punish and prevent such behaviour from happening again.