Reclaiming Cambodian History: The Case for a Truth Commission

24 FLFWA 137

(Cite as: 24 Fletcher F. World Aff. 137)

Fletcher Forum of World Affairs

Spring, 2000

*137 RECLAIMING CAMBODIAN HISTORY: THE CASE FOR A TRUTH COMMISSION

Jaya Ramji [FNa1]

Copyright © 2000  Fletcher Forum of World Affairs; Jaya Ramji

       There are societies--entire polities--which might themselves be considered torture victims, in every bit as great a need of rehabilitation as the individuals persisting in their midst.

--Lawrence Weschler [FN1]

  January 7, 1999, marked the twentieth anniversary of the demise of the Khmer Rouge in Cambodia, a genocidal regime that killed an estimated one-third of the Cambodian population in less than four years of rule. [FN2] Two decades later, the atrocities of the Khmer Rouge have yet to be examined by an impartial authority [FN3] and Cambodian politics remain turbulent, impeding the peaceful development of Cambodian civil society. These two phenomena arguably are linked; until the Cambodian government and the international community develop a policy to repair the damage inflicted by the Khmer Rouge, the Cambodian people will be unable to live in a peaceful society.

  In order for Cambodian society to heal, the full truth about the Khmer Rouge regime must be examined and disseminated, creating a history that Cambodians can teach to their children. [FN4] While a strong case can be made for the need to prosecute the members of the Khmer Rouge, [FN5] an international tribunal for Cambodia may be most effective if limited to the prosecution of top leaders. [FN6] Structural constraints would render a tribunal incapable of fully addressing the *138 complexities of the Cambodian genocide, and thus necessitate the formation of a truth commission or other investigative body as a supplement. [FN7] In order to move forward, Cambodia must establish a clear picture of the past so that all Cambodians have a stake in upholding its future.

  This article investigates the findings of a survey of Cambodians conducted by the author in June 1997. On the basis of these interviews and taking into account Buddhist views of justice and reconciliation, the article recommends a trial for top leaders and a truth commission for lesser members of the Khmer Rouge. This study was designed to determine which mode of accountability would be appropriate for the Cambodian people in addressing the crimes of the Khmer Rouge regime. To discern which of these models would be most responsive to the needs and concerns of the Cambodian people, the author interviewed twenty-five Cambodians from varied socio-economic strata on the subject of whether, and if so how, the Khmer Rouge should be punished.

This composition first provides a brief history of recent Cambodian politics. Next, it outlines the various accountability mechanisms that have been adopted in addressing situations of mass violence in the past. Then it examines themes that arose from interviews. Recurring themes raised by interviewees can offer qualitative insight into the opinions of Cambodians. Taking all of these factors into account, the author presents recommendations on the form that a Cambodian truth commission should take.

CONTEMPORARY CAMBODIAN POLITICS

  In June 1997, Cambodian papers were abuzz with speculation about the possible capture of Pol Pot and his potential prosecution in an international tribunal. [FN8] On July 5, 1997 Hun Sen, then Second Prime Minister, took power in Cambodia through a coup, killing more than forty members of the FUNCINPEC party of Prince Ranariddh, the First Prime Minister. [FN9] This power shift sobered the enthusiasm of those who promoted a tribunal, and put the idea of capturing Pol Pot on hiatus. Less than one month later, however, the Khmer Rouge themselves put Pol Pot on trial and sentenced him to life imprisonment for his crimes against the Cambodian people. [FN10]

  Through late 1997 and early 1998, Cambodia was fairly stable politically, albeit ruled undemocratically. On April 15, 1998, the Khmer Rouge reported that Pol Pot was dead. [FN11] The death of Pol Pot was a clarion call to the Cambodian government and the international community to seek out the truth before the rest of the top Khmer Rouge officials pass away. On July 26, 1998, the incumbent Hun Sen retained his position in an election fraught with irregularities and intimidation [FN12] that again denied Cambodians a meaningful stake in their country's governance.

  *139 Late 1998 and 1999 were characterized by two recurring themes: the arrest and surrender of the remaining Khmer Rouge leaders and extensive negotiations between the United Nations and the Cambodian government on the issue of an international tribunal. In December 1998, Khieu Samphan and Nuon Chea, two of the most notorious criminals of the Khmer Rouge era, surrendered to the Cambodian government and were allowed to walk free. [FN13] In February 1999, the last holdouts from the Khmer Rouge army laid down their weapons and joined the Cambodian army. While this was a step toward the unification of Cambodia, the soldiers threatened to return to armed violence if the Khmer Rouge leaders were put on trial. However, Ke Pauk, a high-ranking Khmer Rouge official, pledged to stand trial if the government ordered him to. [FN14]

  In March 1999, United Nations Secretary General, Kofi Annan, presented the recommendations of the United Nations Group of Experts on Cambodia to the United Nations General Assembly and Security Council. The U.N. Experts' report advised the creation of an international tribunal for the Khmer Rouge leaders and a separate truth commission for other cases. [FN15] On March 12, Hun Sen officially rejected the U.N.'s recommendations of an international tribunal, and instead requested international assistance for a domestic trial of the Khmer Rouge. The Cambodian government also refused to accept a truth commission for lesser members of the Khmer Rouge. [FN16]

  A few days after the Group of Experts' report was published, Ta Mok, the last fugitive Khmer Rouge leader, was arrested by the Cambodian military. Hun Sen insisted that a domestic trial would be sufficient for Ta Mok, and that there was no need for an international tribunal. [FN17] In May, Kang Kek Ieu, or Duch, the chief interrogator for the Khmer Rouge, who was the commandant of the infamous Tuol Sleng prison, was taken into protective custody by the Cambodian government. Duch proclaimed his willingness to testify against himself and other Khmer Rouge leaders. [FN18] In September, a Cambodian military court charged Ta Mok and Duch with genocide. [FN19]

  In August, the Cambodian government rejected a second proposal by the United Nations, which would have created a tribunal with a majority of foreign judges and a minority of Cambodian jurists. [FN20] In October, the United States government proposed a compromise plan consisting of a tribunal composed of three Cambodians and two foreign members which would require a majority of four to uphold a verdict. [FN21] Hun Sen agreed to this plan, and declared that a tribunal will be convened by early next year, with or without United Nations approval. [FN22] He has opened up the possibility of a trial for all of the top Khmer Rouge leaders, instead of limiting the defendants to Ta Mok and Duch, who are already in custody.

  The insistence of the Cambodian government on a domestic trial, while understandable from the perspective of sovereignty, is also short-sighted. A fair trial for the leaders of the Khmer Rouge requires international intervention due *140 to the current state of the Cambodian judiciary. The case for prosecution of the leaders who commanded the genocide has been made eloquently and convincingly; [FN23] however, the question remains how to account for crimes committed by lower-ranking members of the Khmer Rouge. [FN24] Legal proceedings focused on individuals are neither feasible nor appropriate for the thousands of cadre members implicated in the Cambodian genocide, nor could they accurately or sufficiently establish a shared historical memory for the Cambodian people. [FN25] After almost twenty years of war, Cambodia faces a long road to recovery; a truth commission is a vital component of this healing process. [FN26]

ACCOUNTABILITY MECHANISMS [FN27]

  In the words of Jose Zalaquett, "A policy to deal with past human rights abuses should have two overall objectives: preventing the recurrence of such abuses and, to the extent possible, repairing the damage they have caused." [FN28] Remedies for human rights abuses have traditionally fit one of three categories: international trials, domestic trials and truth commissions. International tribunals, such as the International Criminal Tribunal for the Former Yugoslavia, are established by the United Nations or similar international body, and are composed of judges and prosecutors from foreign countries. Domestic trials, such as the current genocide trials in Rwanda, take place in the courts of the country of the accused, following domestic laws. Finally, truth commissions, such as the South African Truth and Reconciliation Commission, provide a forum to hear the stories of the victims and the perpetrators without the punitive powers of a court.

  International tribunals prosecute those accused of serious crimes under international law and memorialize episodes of mass violence. [FN29] The hallmarks of international trials are individual accountability and punishment. [FN30] That is, such trials focus exclusively on the deeds of individual perpetrators, often military and political leaders (under a chain-of-command theory), and impose traditional criminal sanctions on those found guilty. [FN31] Perhaps most importantly, international tribunals promote international criminal norms such as the prohibitions on genocide and crimes against humanity, which become diluted if every violation is not punished. [FN32] The Nuremberg trials, the Tokyo tribunal and the International Criminal Tribunals for the Former Yugoslavia and Rwanda are all examples of international trials. The main functions of an international trial are deterrence of future crimes and retribution for the victims, while reconstruction of society, rehabilitation of the criminal and behavior correction are only indirect results. [FN33]

  Criticism of international trials most often begins with the claim that they constitute a form of "victor's justice," meaning that they are neither unbiased nor impartial. [FN34] International trials are extremely expensive, and financial and political constraints often render them unable to arrest even those perpetrators that *141 they have indicted. Consequently, many alleged human rights abusers are arbitrarily absolved, raising questions of scapegoating and impunity. [FN35] The focus of trials on individual perpetrators renders them unable to account for all of the complex factors that may have contributed to the commission of mass violence, and thus incapable of completely addressing such crimes. [FN36]

  While international tribunals may be effective in retribution, punishment and deterrence because of their authority to impose serious penalties, they do not contribute as much as truth commissions to the societal rehabilitation that is vital in the wake of mass violence. [FN37] International criminal trials can pose a threat to fragile democratic structures in countries in transition from a repressive regime. [FN38] In the particular case of Cambodia, the crimes of the Khmer Rouge are so extensive that it would be prohibitively expensive for an independent tribunal to examine all of the facts surrounding the regime. [FN39] Most importantly, tribunals "[presuppose] some moral choice or moral freedom on the part of the putative criminal." [FN40] In the Cambodian context, perpetrators who were not top leaders were so terrified and brainwashed by the Khmer Rouge regime that such a moral choice may have been absent.

  Similar to international tribunals, domestic trials often interpret human rights norms. They identify human rights abusers, apply the municipal laws that the abusers have broken, and punish them. Domestic trials are perpetrator- focused and follow the principle of individual accountability. These trials take place within the domestic judicial system of a country and derive authority from national statutes, codes, and precedents. As a result, domestic trials can help to re-establish the legitimacy of the domestic legal system in the wake of mass violence. [FN41]

  However, a domestic trial faces all of the same problems as an international tribunal, including its inadequacy to deal with the sheer numbers of perpetrators under the Khmer Rouge regime. [FN42] This problem is exacerbated by the fact that the judiciary in Cambodia, like that in most regimes recovering from mass violence, is slowly recovering from virtual obliteration. A domestic trial obviously relies on a functioning and impartial judiciary. Cambodia has never seen an impartial and independent judiciary, and most legal experts were murdered by the Khmer. Legal training has begun in Cambodia, but the young judiciary does not have the necessary independence or experience to conduct a trial of the Khmer Rouge, which would be politically charged and highly controversial. In a striking display of unanimity, every one of the interviewees stated that a trial could not be held in Cambodia because the judiciary is too corrupt and weak. [FN43]

  Another possibility is a trial in another country. When the international community was hopeful that Pol Pot would be captured during the summer of 1997, the proposal of extradition to Canada was popular. Once in Canada, Pol Pot could be prosecuted under Canadian law, which explicitly permits universal jurisdiction *142 for acts of genocide. [FN44] Pol Pot's death put an end to these speculations, but perhaps other Khmer Rouge leaders could face prosecution in this manner.

  The final option is a truth commission. Truth commissions can record and disseminate a full and independent historical record of human rights abuses in a specific country, performing a broader fact-finding function than a tribunal. [FN45] This record is intended to perform both a preventative and a corrective goal by aiding a society to learn from their past mistakes and helping to prevent the revision of history and the denial of past crimes. [FN46] Truth commissions are generally victim-focused; that is, they center around the stories of the victims rather than the testimony of the perpetrators. The psychological aim of the truth commission is the official acknowledgment of the truth and its subsequent entry into the popular consciousness.

  Truth commissions do not possess prosecutorial authority and do not act as judicial bodies that can declare guilt. Truth commissions are more difficult to define than domestic and international trials, since they tend to be more flexible and adapt to the needs and requirements of each situation. Priscilla Hayner outlines four general characteristics of truth commissions: a focus on the past, an attempt to provide a larger picture of abuses rather than an emphasis on a discrete event, a finite and pre-defined time span, and the possession of some authority allowing greater access to information and security. [FN47] The reports published by truth commissions rarely lead to prosecutions by tribunals. This can be both useful, because of increased participation, and detrimental due to truth commissions' lack of enforcement abilities. A new government, a regional organization or the United Nations can establish a truth commission.

  The most obvious criticism of truth commissions is that they lack the power to punish. [FN48] This, however, depends upon the particular truth commission [FN49] and one's definition of punishment. The power of truth commissions lies in non-traditional sanctions such as shame and ostracization. Suchforms of punishment can be as powerful as criminal punishments in advancing the rule of law, while encouraging good-faith participation by perpetrators. [FN50] Nonetheless, truth commissions can pose due process problems in that they name and punish those found guilty, but do not always meet the procedural requirements of a court of law, [FN51] a consequence that may prove unsatisfying for victims and arguably violates the rights of the accused.

  Given the limited capacity of the domestic Cambodian judiciary, a truth commission or an international tribunal would be the most appropriate accountability mechanism. [FN52] The heinous human rights violations of the Khmer Rouge must be examined and exposed. [FN53] However, the tension between the "duty to prosecute" [FN54] to vindicate the victims and uphold international criminal law, versus the need to balance accountability with the fragility of a new democracy, is extremely complex. While numerous international scholars assert that genocide *143 must be legally punished, it is important to remember that a trial and a truth commission are not mutually exclusive. [FN55] In the case of Cambodia, a truth commission is necessary to paint a larger picture of Cambodian history from 1975 to 1979 that a tribunal standing alone would ignore. A truth commission in combination with limited prosecutions may be the most effective method of accounting for the crimes of the Khmer Rouge. [FN56]

THEMES

  Seven recurring themes arose within the interviews conducted. First, Cambodians want peace. [FN57] After decades of war, many of those interviewed would not support a tribunal if it led to further instability and unrest. Second, the interviewees want to know the full truth about the Khmer Rouge era. The Khmer Rouge regime was so secretive that many Cambodians do not know who was ultimately responsible for the genocidal acts; these facts must be established so that Cambodians can put the past behind them. Third, the question of responsibility for violent crimes committed under orders and/or duress surfaced repeatedly. Fourth, the interviewees want to know who exactly backed the Khmer Rouge--that is, who or which countries supported the regime both directly and indirectly. Fifth, in regard to the question of amnesty, the interviewees held a vast array of opinions. On the one hand, Buddhism and the goal of national reconciliation point to leniency. On the other hand, the crimes committed were so heinous that many interviewees believe that the Khmer Rouge must be punished. Sixth, a state of law must be established in Cambodia. Finally, education is absolutely vital for Cambodia to move toward its purported goals.

  THEME 1: Peace. Peace is extremely important to Cambodians, particularly to the average citizen who works long hours to scrape out a meager living. Most Cambodians are tired of conflict and bloodshed, of losing loved ones, and of living in a state of lawlessness and fear. Interviewees repeatedly stated that development, economic and otherwise, would be impossible without stability and security. [FN58] The Cambodians interviewed expressed a desire to live in a stable democracy so that Cambodia can develop as other countries in Southeast Asia have. [FN59] Although a trial may be necessary for long-term stability, some interviewees believed that short-term stability and a state of peace outweighed future concerns. [FN60] They feared that a trial, with its adversarial nature and zero-sum results, would result in political upheaval and could return the country to a state of war. Given that many current politicians and government officials colluded with or were themselves members of the Khmer Rouge, concerns of political instability resulting from a trial are very real. Thus, a trial or truth commission will have to take into account Cambodians' concerns of stability and security.

  *144 THEME 2: Full Truth. Some interviewees simply wanted to know the truth about what had happened in the Khmer Rouge era. [FN61] The Khmer Rouge were highly adept at disguising chains of command and keeping Cambodians in the dark about who was orchestrating the genocidal regime. In Buddhist cultures, truth-telling is the most important of the moral virtues, and the revelation of truth can effect crucial changes. [FN62] Further, the ultimate goal of punishment has traditionally been correction and not revenge. Common punishments have included confession and asking for forgiveness, rather than corporal or capital punishment. [FN63] Thus the act of truth-telling on the part of the perpetrators could have great intrinsic value to many Cambodians.

  THEME 3: Determining Responsibility. Interviewees themselves brought up command responsibility in many interviews. Who exactly should be held responsible for the crimes of the Khmer Rouge? The question of command responsibility is particularly interesting in view of the monarchical, absolutist tradition of Cambodia. From the reign of kings through French colonization, through King Sihanouk and Lon Nol, Cambodia has always been ruled by a dictator. [FN64] This led, it seems, to the lack of formal education discussed below and consequent susceptibility to indoctrination.

  Cambodian tradition promotes reverence for leaders far more strongly than Western political systems, by whom and for whom international criminal law has been created. Even in the wake of genocide and war, many interviewees were still willing to trust the new Cambodian government and to let it decide which remedy would best address the crimes of the Khmer Rouge. This raises a question posed by Carlos Nino: "whether we are justified in imposing through the criminal law our own values on people who not only do not share them but even lack the conceptual scheme which would make them capable of recognizing and understanding our values." [FN65] Precedential definitions of command responsibility may need to be reassessed in the Cambodian context, shifting the burden of proof further towards the superior. [FN66] Cambodian values often differ from the Western values that underlie international criminal law. For example, international criminal law emphasizes individualism, and the ability of the individual to choose whether or not to obey an unlawful command given by a military leader. This assumption may not hold in the Cambodian context.

  A closely related question raised by the Khmer Rouge atrocities is how to legally address circumstances of individual or mass killing under duress. Under the rule of the Khmer Rouge, Cambodians were starved and forced into slave labor, conditions that certainly do not lend themselves to independent thought or deep theoretical or moral freedom of choice. When the choice was to kill others or be killed, should this relieve or mitigate responsibility for murder? For crimes against humanity? For genocide? The international military tribunals in the wake of *145 World War II found that duress was a complete defense. However, a recent case by the International Criminal Tribunal for the Former Yugoslavia held that duress can mitigate a criminal sentence but is not a defense against grave crimes such as crimes against humanity. [FN67] In the case of Cambodia, it may be more accurate to focus on the "top leaders" of the Khmer Rouge for individual criminal culpability, as the living conditions of most other Cambodians may make it difficult to establish that they met the mens rea requirements of such crimes. [FN68]

  THEME 4: International Actors. Interviewees expressed concerns about foreign involvement in and support of the Khmer Rouge regime. [FN69] Some interviewees held the racialist view of disbelief that Khmer would kill Khmer and asserted that there had to be someone or some external force behind the Khmer Rouge. [FN70] Others simply wanted to find out which countries supported the Khmer Rouge. [FN71]

  While there is no easy answer to the question who supported the Khmer Rouge, and there is a fine line between culpability for complicity and a non- interventionist stance, this area demands further research. The United States, Thailand, and the People's Republic of China all arguably supported the Khmer Rouge either financially, politically, or both. [FN72] Some Cambodians assert that the Khmer Rouge could never have remained in power had other countries not supported them. This question of outside support must be closely examined in order to establish a shared historical memory and perhaps forgiveness in Cambodia; independently, a tribunal would be incapable of such a task. [FN73]

  THEME 5: Amnesty. The fourth recurring issue was that of amnesty. [FN74] This is a particularly interesting question in Cambodia--a country with a strong Buddhist tradition. Both Buddhism and the goal of national reconciliation seem to point towards amnesty, [FN75] and approximately half of the subjects interviewed felt that amnesty would be acceptable given an in-court confession and apology. [FN76] However, the other half, including a Buddhist monk, felt just as strongly that the crimes committed by the Khmer Rouge were so heinous that amnesty is not tenable. This raises important philosophical and psychological questions on the limitations of human forgiveness--there may exist crimes so horrifying that to forgive them officially (rather than personally) would be to diminish their severity.

  It is important to reiterate that even those interviewees who ultimately agreed to amnesty accepted it on the condition that those found guilty would admit in court (or in a truth commission) to what they had done, confess their guilt, and apologize publicly to all Cambodians. Some scholars, including M. Cherif Bassiouni, would say even that this is the only possible method for legitimate amnesty. [FN77] As a Royal Government of Cambodia official stated, amnesty cannot be given or guaranteed before trial. A person must be assumed innocent until proven guilty, and therefore does not have any guilt to be pardoned of before *146 a judicial body has examined her individual circumstances. [FN78] One of the main benefits of amnesty is that it encourages guilty parties to explain what exactly happened and to incriminate other culpable persons. [FN79] If voluntary confession in court is not a part of the amnesty process, then amnesty loses one of its central goals. Finally, for amnesty to adequately address the needs of the victims' families and loved ones, public apologies are imperative. Amnesty is not to be used as a method for the truly culpable to escape punishment--instead, it should be a form of catharsis for both the perpetrator and the victim. The perpetrator confesses to his crime, which relieves him, legitimates the victims' loss and pain, and potentially inflicts an internalized punishment on the guilty party. Both the public shame and the personal consciousness of the crimes that he has committed serve to punish the perpetrator. Thus admission, confession in court, and public or personal apology are three vital components of amnesty, and the Cambodians interviewed believed that amnesty should not be offered without them.

  Those interviewees who, under these conditions, supported amnesty usually explained their forgiveness from a Buddhist perspective. The belief that "Hatred cannot be conquered by hatred" was repeated several times in the interviews. [FN80] It is important to note that this belief in amnesty often did not extend to the top leaders. One interviewee recounted the story of Angkoly Mala, who committed a horrific and gruesome crime that his teacher had masterminded and ordered. The young student was forgiven, but his teacher was not. The interviewee analogized this story to the situation of the Khmer Rouge, insisting that there should be no amnesty for top leaders of the regime. [FN81] Thus, even for people operating under an explicitly Buddhist interpretation and worldview, amnesty is not always prescribed.

  Of the subjects who insisted on amnesty, one stated that tolerance and forgiveness were "the primary Khmer nature." [FN82] Perhaps there could be a sociological assumption or argument underlying these claims, but from the interview and other statements it seems that this assertion was based on views about race and biological determinism. Such a reductionist view may lead one to question the validity of this viewpoint. It could be reasoned that interviewees agreed to amnesty because Cambodian domestic law allows the King to grant amnesty or perhaps because the interviewers introduced the idea of amnesty to them. Interviewees said that amnesty was acceptable according to the law, [FN83] or agreed to amnesty at one point in the interview but later stated a strong desire for punishment. [FN84] While some interviewees did seem to agree with the idea of amnesty, it is important to note these concerns and reservations.

  Another justification for amnesty, used to secure amnesty for Ieng Sary  (Brother Number Two), is that of national reconciliation. Interestingly, national reconciliation was not directly raised in the context of amnesty in any of the interviews. It is debatable whether amnesty is preferable to punishment for *147 purposes of stability and security. An amnesty provision similar to the one used by the South African Truth and Reconciliation Commission provides an incentive for perpetrators to confess their deeds and establish a complete picture of the truth, and this form of forgiveness can also help to put an end to cycles of retribution and violence. However, stable democracies must be based on a state of law in which citizens are held legally accountable for their actions. Any amnesty policy should strive toward assessing accountability and addressing guilt through social punishment rather than adopting blanket impunity.

  Interviewees who disagreed with amnesty were most often nongovernmental organization (NGO) workers, women, and politicians. The NGO workers interviewed were concerned about human dignity and the value of human life. They also spoke about the legitimacy of international laws of genocide and other crimes against humanity. [FN85] While politicians may have had ulterior motives for opposing amnesty (i.e., punishing members of opposition parties) NGO workers expressed valid and convincing concerns about the ramifications of amnesty on international criminal law. Thus it may be wiser to try top leaders and establish a truth commission for the rank and file violators.

  One powerful statement by an interviewee justifying his refusal of amnesty was: "For whom should one have pity? Pol Pot or two million Cambodians?" [FN86] Many Cambodians have suffered for twenty years with little or no redress, and are eager for justice. This sentiment highlights the ability of many interviewees to transfer the blame for what happened during the Khmer Rouge rule to the regime's top leaders. A denial of amnesty to the top leaders would allow Cambodians to relieve the anger, loss, and pain that has been stored for years, and perhaps to forgive the lower-level members of the Khmer Rouge who were following the coercive orders of top leaders.

  THEME 6: Reestablishing Law. A sixth leitmotif was the establishment of rule of law in Cambodia. Two Royal Government of Cambodia officials were particularly adamant on this topic, but it was also brought up, directly or indirectly, by almost everyone interviewed. In June 1997, the National Assembly had not convened for three months. The Constitutional Court had not yet been created, and could only be installed by the Supreme Council of Magistrates. Even more absurdly, the Supreme Council of Magistrates itself had not yet been created. [FN87] In July 1997, Hun Sen took power through a coup, [FN88] blatantly defying constitutional methods of changing the government. The co- Prime Minister, Ung Huot, was installed by Hun Sen in an undemocratic fashion. [FN89] Forty supporters of Ranariddh were killed and twenty Members of Parliament allied to him fled during and directly after the coup. [FN90] While many returned, they face the threat of retaliation from Hun Sen if they step too far out of line.

  *148 Elections were held on July 26, 1998, in an attempt to provide a facade of democracy. Predictably, the strongman Hun Sen won the election after a campaign of intimidation of opposition parties, purchasing of votes, and nearly complete media control. [FN91] Diplomats, political analysts, and human rights monitors confirmed widespread intimidation, inadequate monitoring of the polls and many opportunities for fraud. [FN92] Prince Norodom Ranariddh and Sam Rainsy, the opposition leaders, continue to protest the results, [FN93] but their supporters living in the villages bear the brunt of their loss, subject to harassment and threats. [FN94]

  While everyone suffers under such a situation, it is the poor and working classes, the politically disenfranchised, who suffer the most. Uneven application of laws, difficulty in bringing lawsuits, lack of civil rights, and impunity enjoyed by unscrupulous officials [FN95] prevent the average citizen from living above subsistence level. In a country rich in resources and arable land, this is a travesty. One could argue that a trial would establish a precedent of legal accountability, and perhaps translate into improvements in the Cambodian legal system. More importantly, it is fairly clear from these circumstances as well as from the opinions of the interviewees that Cambodia is incapable of setting up a fair and impartial trial by itself. Thus, a tribunal or truth commission must be international, and should play a role in helping Cambodia implement a legitimate and functioning legal system. [FN96]

  THEME 7: Education. The final theme that emerged in the interviews is the dire need for formal education and schools. Some interviewees convincingly argued that the high levels of illiteracy and lack of formal education in Cambodia set the stage for the Khmer Rouge to come to power in the first place. [FN97] To prevent the return of a similar regime and to repair the damage done by the Khmer Rouge, education should be a top priority.

  Until more exhaustive research is done and culpability is legally established, it will continue to be difficult to teach recent Cambodian history in school. Since the 1993 elections, the Khmer Rouge era (1975-1979) has been removed from history books [FN98] and the curriculum in general in Cambodia. This raises at least two obvious concerns. First, if children are not taught about the atrocities and crimes committed by the Khmer Rouge, this group or another like it might again grasp hold of political power and instigate a new reign of terror. A Cambodian populace that is aware of and understands the reasons for the 1975-79 genocide will be much more capable of preventing the recurrence of such a tragedy. The second potential problem is that a whole generation of Cambodians will not know the powerful history of their own country. Many of the Cambodians interviewed had a great desire to know "the truth" about who was responsible for atrocities committed against their families and friends. [FN99] It is important for healing purposes that this "truth" be officially accepted and disseminated.

  *149 The Khmer Rouge's nearly complete obliteration of teachers, professors, and schools has left a devastating mark on Cambodian society. As a result of the elimination of educated classes, teachers themselves are barely educated, usually having only a six-week training session to procure their jobs. Teachers' salaries range from a high of US$ 25 per month to a low of US $ 15 per month. Even translated into spending power in the Cambodian economy, this is a paltry sum. This situation forces teachers to take side jobs for pay, including teaching extra classes and tutoring those who can afford it. Thus a "free" education system becomes an inadequate one, as teachers are drawn to better paying jobs, and only those who can pay for it receive a decent education. The constant power struggles in the former coalition government meant that the focus in building new schools was on the showiness of the buildings rather than the quality of its teachers and curriculum. Education is not mandatory in Cambodia, so many children fail to attend school, particularly if parents in economic need require additional income. Even those who attend school face the problem of inadequate teachers described above, as well as classes that meet sporadically and are often short in duration. [FN100] This problem exists also at the university level. Private universities tend to attract the best teachers away from the public universities. While most students at the public universities come from wealthy families, any suggestion of charging tuition or fees is roundly dismissed since the parents of these students are generally government ministers. The unfortunate state of education in Cambodia will only serve to widen the already palpable gap between wealthy and poor, leaving the poor illiterate and allowing education for only those who can pay for it. [FN101]

  This situation then becomes "le serpent qui se morde la queue'' [FN102] since it is difficult for people lacking formal democratic education to choose political representatives who will fight for their interests. Indeed as a Royal Government of Cambodia official told me, in one province, citizens elected a representative who was a good singer simply because they liked his voice. [FN103] Further, economic vulnerability can lead to the absence of real political choice. Understandably, indigent people may be more concerned with obtaining food and shelter than with analyzing the political situation in their area, and may be swayed by political candidates who provide them with material benefits in exchange for their votes. Such politicians may not represent the interests of the voters during their tenure in office, and the economic restraints faced by poor people will make it difficult to challenge politicians who fail them. Lack of education reproduces itself through the political process, and should be addressed through reparations.

*150 A TRUTH COMMISSION

    "Hatred is not conquered by hatred."

--Buddhist saying [FN104]

  The information from this study suggests that Cambodians lack a shared picture of their history. A shared perspective would be necessary for social consensus and peace (i.e. to repair the harms perpetrated by the Khmer Rouge and to prevent, through education, such atrocities from recurring in the future). A tribunal for Cambodia currently appears imminent; [FN105] while genocide should not go unpunished, the limitations imposed by the structure of a trial may deny Cambodians access to the full truth about the Khmer Rouge regime. [FN106] A truth commission could paint a broader picture of Cambodian history from 1975 to 1979, and is therefore a necessary complement to a tribunal. Without first creating a full picture of Cambodian history, it may be difficult for Cambodians to determine exactly which members of the Khmer Rouge should be on trial.

  In the unique case of Cambodia, it appears that a truth commission is a vital component of any policy to address the atrocities committed by the Khmer Rouge. First, a truth commission would be far more responsive to Cambodians' desire for information regarding the Khmer Rouge and their chain of command than would a tribunal. Second, "national reconciliation" is an overriding goal for many Cambodians, and is arguably more consistent with Buddhist philosophy than a trial. Third, Cambodia is a country that direly needs development funds in every area of society, so money that would be spent on an international trial of numerous perpetrators may be better allocated towards a limited trial, truth commission, and development projects. While genocide and crimes against humanity must not fester, a trial of top leaders combined with a truth commission could minimize this risk and establish a shared historical memory to enable Cambodians to leave the Khmer Rouge era in the past.

  Interviewees repeatedly emphasized the need to find out who supported the Khmer Rouge, both directly and indirectly. Due to the secrecy of the Khmer Rouge, most Cambodians are ignorant of the composition of the Permanent Committee and other committees that planned the genocide. [FN107] The regime has been characterized as a "prison without walls," as it was organized to strip the prisoners (Cambodians) of their freedom and individuality. Prisoners could not take any actions that were not approved by the wardens (the Khmer Rouge leadership), and they could only see the guard in charge of their cellblock. They did not know the identity of other guards nor of prison officials. Most knew the warden's name (Pol Pot) but had never laid eyes on him. Fortunately for those investigating this era, including the Documentation Center of Cambodia (DC-Cam), the Khmer Rouge left a long paper trail, documenting their killings with obsessive regularity.

  *151 DC-Cam has undertaken a large amount of the necessary information gathering, but there is still much work to be done in this realm. [FN108] The data already collected must be analyzed and weighed by an independent, authoritative body. In addition, fact-finding expeditions and research are needed in the realm of indirect support and the culpability of other nations. Thus not only must the prison warden be found, but also the government that funded the prison and the organizations that sent advisors to help run it. It may be necessary to examine the culpability of those members of the international community who were capable of breaking into the prison and freeing the prisoners but failed to act. To cull the amount of knowledge of the Khmer Rouge era that Cambodians seek, then, it seems a truth commission with its strong research and investigation focus may be more effective than a tribunal.

  The interviews suggest that some Cambodians, particularly those from rural areas and lower socio-economic classes, place a higher priority on peace and stability than on retributive justice for the Khmer Rouge. [FN109] Some Cambodians from higher socio-economic classes believe that Buddhist philosophy prescribes amnesty and truth over revenge. [FN110] While a strong argument can be made for the punishment of genocidal regimes in terms of international law precedents and the deterrence effect, a fragile state such as Cambodia may not be able to withstand the ramifications of widespread trials. If the number and composition of defendants in a trial were limited at the outset, other Cambodians involved in Khmer Rouge activities would have much less to fear from a trial. While old wounds would still be opened, fear of punishment on the part of the general populace could be assuaged. Further, a truth commission could point to the guilty lower down in the Khmer Rouge chain of command and enumerate their acts while granting amnesty and allowing society to heal.

  Both interviewees and the state of the country after twenty years of war highlight the need for an accountability mechanism to provide substantial reparations to the Cambodian people. The top priorities are the establishment of an educational system and the rule of law. While neither of these goals can be achieved without the cooperation of the Royal Cambodian Government, the government also needs international assistance in the form of both training and funding. An international tribunal that aims to prosecute many members of the Khmer Rouge would be extremely expensive and would poach funds from the more important goal of development. When presented with the choice between a trial and development of civic institutions necessary for democratic stability, the answer for a large number of Cambodians would be development.

*152 RECOMMENDATIONS

  Working from the assumption that a truth commission is vital to rehabilitate Cambodian society, it is easy to articulate several recommendations about its structure. By definition, a truth commission is a highly flexible accountability mechanism, and can be sculpted to fit the needs of each individual country.

  First, the Cambodian genocide was characterized by highly centralized control, which made it almost impossible for Cambodians to disobey the orders of the Khmer Rouge cadre. [FN111] Many of those who survived the Khmer Rouge era did so because they followed orders, ranging from rationingmeals in portions that caused people to starve, to bayoneting people in the backs of their necks. While it is clear that the top leaders are culpable, the question of guilt becomes much more complex when applied to the rest of the population. A truth commission for Cambodia would have to take this into account, and one recommendation would be to follow the model of conditional amnesty by the South African Truth and Reconciliation Commission. [FN112] In the unique Cambodian context, an amnesty provision would allow people to express their experience as both victim and perpetrator at the same time, rewarding them with amnesty if they confess to the atrocities that they committed. Thus participation in the "punishment" of admitting guilt publicly metes its own reward. This would encourage Cambodians to tell their stories, even if they must admit to killing other Cambodians. In the case of Cambodia, an amnesty provision seems to be the only realistic avenue for obtaining testimony from a large percentage of the population.

  While the majority of interviewees rejected amnesty for top leaders,  [FN113] their opinions on amnesty for lower-ranking Khmer Rouge criminals were less clear. If a trial is limited to top leaders, amnesty can be extended to those lower on the command chain after they have confessed in front of a truth commission. Through such a structure, punishment can be meted out to those guilty of committing atrocities in the Khmer Rouge era in a manner that will help to end the cycles of retribution and revenge. While blanket amnesties condone past abuse and encourage future abuse, a conditional amnesty would help to rebuild civil society by encouraging dialogue and ordering non-legal punishment. [FN114] The social humiliation of public confession and apology is punishment in and of itself, and public acknowledgment of atrocities can be as beneficial to victims' healing processes and to advancing the rule of law as a legal judgment. [FN115]

  A Cambodian Truth Commission would necessarily be located in Cambodia in order for it to fully investigate and take testimony. However, interviewees unanimously held that the Cambodian government would be incapable of conducting an unbiased trial or truth commission. Thus a truth commission could be set up under U.N. auspices or with the support of ASEAN. Many *153 interviewees stipulated a desire for judges from Western democracies, but Cambodian representation was also important to some respondents.

  The option of anonymity should be available to potential witnesses. The current political situation in Cambodia and the presence of many former Khmer Rouge members in positions of power make fears of retaliation real concerns. The more damaging the testimony, the greater the fear of reprisals will be. Thus if a truth commission does not have provisions for anonymity, it will run the risk of losing witnesses with the most pertinent information. [FN116]

  The interviewees unanimously accepted the importance of widespread distribution of results, but the implementation could be problematic in Cambodia. There are two major difficulties faced by such distribution: freedom of the press and due process considerations. In the case of Cambodia, given the concerns heard regarding the lack of freedom of the press, [FN117] it is imperative that international organizations are involved to ensure a fair, thorough, and impartial distribution of findings. This is also vital for due process considerations. A truth commission must be extremely careful when naming perpetrators. While there was much enthusiasm among the interviewees for publishing perpetrators' names, accusations of guilt must be examined carefully when determined in a non-judicial forum. If the truth commission uses the model of conditional amnesty, the resultant voluntary confessions of guilt sidestep due process problems.

  In terms of the distribution of results, there was much less enthusiasm for naming victims. Interviewees objected to publishing victims' names for two reasons: there were countless victims and people already know the names of those killed. Again, the Cambodian experience is different from that of many other countries, particularly in Latin America, where truth commissions have been established. First, the massive scope of this genocidal regime, killing off nearly a third of the Cambodian population, makes investigation of each and every victim all but impossible. Second, the hope that a friend or family member may be alive somewhere has been extinguished over the last twenty years, so people do not need to see their loved ones' names in writing to confirm their death. Third, such a long time period has passed since the atrocities occurred that people have borne witness with family members and friends and do not feel the pressing need to have their story heard and legitimated. This last circumstance is also a result of the fact that the atrocities committed under the Khmer Rouge have been acknowledged; more than denial, the problem is that crimes have never been fully investigated. Thus a Cambodian Truth Commission need not publish victims' names.

  Extremely difficult philosophical questions are raised in the debate between a trial and a truth commission. On the one hand, there is the gut reaction of the need to punish those responsible for horrifying abuses of human rights. Nate Thayer's interview of Pol Pot on October 22, 1997, highlights this *154 reaction. Pol Pot's claim that he felt no remorse for his role in the genocide provokes the impulse that he should have been punished and in that way forced to regret his atrocious crimes. However, a tribunal has numerous ramifications far beyond the individual being prosecuted. One must step back and examine not only the ethnocentricity of a trial solution, but also the repercussions that a trial would have on a fragile democracy. First, Buddhist philosophy appears to support the concept of amnesty. Second, a trial may be an easy way for the rest of the world to wipe their hands of their guilt for allowing such a regime to exist and for certain countries, for supporting the Khmer Rouge years after the deeds of the genocidal regime were well documented. The combination of a tribunal and a truth commission will ensure that a full picture of Cambodian history is painted, while preventing the instability that could result from universal trials.

  The most important structural elements of a truth commission are information collection and examination of the chain of command. From interviews, it appears that finding out who was behind the Khmer Rouge [FN118] or put more simply, finding out the truth [FN119] is the highest priority of many Cambodians. [FN120] A truth commission is better equipped for this type of research than a tribunal, given its inherent fact‑finding mandate. Although a trial judgment could be published and distributed, the findings of a truth commission would be far more accessible to the general public. Most importantly, the findings of a truth commission would address the Khmer Rouge era in its entirety, painting a picture of the chain of command and those responsible from 1975 until 1979. [FN121] Thus, philosophically and structurally, a truth commission is vital for the reconstruction of Cambodian society.

  By using non-legal punishment to address lower-ranking perpetrators of serious human rights abuses, we can achieve the goal of implementing justice without tearing apart a fragile democracy. The question, then, is not whether to pity Pol Pot more than pity those he massacred, but how to realistically assess what is necessary to rehabilitate a nation that has suffered through twenty years of war. Those who committed crimes as grave as those of Pol Pot should face an international tribunal; other Cambodians should be aided by a truth commission in constructing a collective social history.

CONCLUSION

  From the author's interviews with Cambodians, a trial for top leaders and a truth commission for lower-ranking members of the Khmer Rouge are advised. In March 1999, United Nations Secretary General Kofi Annan and the U.N. Group of Experts on Cambodia endorsed the idea of an international tribunal for Khmer Rouge officials and a truth commission for other Cambodians. [FN122] The Cambodian government rejected this proposal in favor of a domestic trial with a *155 minority of foreign judges and technical assistance from the United Nations. This plan does not include provisions for a truth commission.

  While the Cambodian government's concerns about sovereignty are understandable, particularly given the treatment that Cambodia has received at the hands of the international community over the past twenty years, the choice of a domestic trial is short-sighted. Only a truth commission can address the long-term needs for education and social reconciliation. It is widely accepted that the Cambodian judiciary has neither the impartiality nor independence needed for a fair trial of the Khmer Rouge. Further, a truth commission is consistent with Cambodian history and culture. A truth commission is necessary to paint a larger picture of Cambodian history, which is vital to heal Cambodian society. Over twenty years after the tragedy, it is time that Cambodians are granted recognition and redress of the heinous crimes that they suffered at the hands of the Khmer Rouge. This would be accomplished most effectively through an international tribunal for top leaders of the Khmer Rouge and a truth commission for other Cambodians.

[FNa1]. Note 1. JAYA RAMJI HOLDS A JD FROM YALE LAW SCHOOL AND IS THE 1999-2000 ROBERT L. BERNSTEIN FELLOW IN INTERNATIONAL HUMAN RIGHTS. THIS ARTICLE IS THE CULMINATION OF RESEARCH CONDUCTED UNDER THE AUSPICES OF THE DOCUMENTATION CENTER OF CAMBODIA (DC‑CAM), FUNDED BY THE CAMBODIAN GENOCIDE PROGRAM AT YALE UNIVERSITY (CGP).  THE AUTHOR WOULD LIKE TO THANK BEN KIERNAN, YOUK CHHANG, CRAIG ETCHESON, BETH VAN SCHAACK, RYAN GOODMAN, NOAH NOVOGRODSKY, KOSAL PHAT, DARA POEV VANTHAN, PAHNAVUTH SEN AND CHRISTINE BARTON.

[FN1]. Lawrence Weschler, "A Miracle," A Universe 241 (1998).

[FN2]. See Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79 456-63 (1996).

[FN3]. See Stephen P. Marks, "Forgetting 'The Policies and Practices of the Past:' Impunity in Cambodia," 18 The Fletcher Forum of World Afairs 17, 20 (1994).

[FN4]. "...central truths, as relative as they may be, must be established in order to provide a historic record of what occurred to mitigate the simmering effects of the hardships and hardened feelings resulting from violent conflicts that produce victimization, to dampen the spirits of revenge and renewed conflict, to educate people, and ultimately to prevent future victimization." M. Cherif Bassiouni, Searching for Peace and Achieving Justice: the Need for Accountability, 59 Law and Contemporary Problems 9, 24 (1996).

[FN5]. See Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 Harvard Human Rights Journal 229, 230 (1995); Hurst Hannum, "International Law and Cambodian Genocide: The Sounds of Silence," 11 Human Rights Quarterly 82, 95-96, 135-38 (1989); Stephan Landsman, Alternative Responses to Serious Human Rights Abuses: of Prosecution and Truth Commissions, 59 Law and Contemporary Problems Prob. 81, 90-91 (1996); Marks, supra note 3 at 40; Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Calif. L. Rev. 449 (1990).

[FN6]. "...not punishing all violators of human rights does not constitute a breach of moral duties...'' Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Criminals, 12 Human Rights Quarterly 1, 5 (1990). This assertion begs the question of how to distinguish top leaders. Malamud-Goti offers the distinction of those who "designed, or had supreme authority over, a criminal state apparatus...'' Id, at 3. Inthe Cambodian context, top leaders have generally been defined as the top seven--Pol Pot, Khieu Samphan, Son Sen, Ta Mok, Ieng Sary, Nuon Chea, and Vorn Vet. (Pol Pot and Son Sen both died after the interviews were conducted in June 1997). The tribunal may also choose to add perpetrators such as Duch, who ran the infamous Tuol Sleng prison, and others with an equal level of authority. These are questions that must be resolved after examining the evidence against the Khmer Rouge.

 [FN7]. See Mark J. Osiel, "Ever Again: Legal Remembrance of Administrative Massacre," 144 University of Pennsylvania Law Review 463, 678 (1995).

 [FN8]. See, e.g. Endgame, Phnom Penh Post, June 27-July 10, 1997 (a special edition of the paper focused on Pol Pot and his imminent capture).

[FN9]. See Seth Mydans, "Cambodia Purge Said to Claim 40 Victims," N.Y. Times, July 16, 1997, at A8.

[FN10]. See Elizabeth Becker, Videotape Shows Pol Pot Facing Khmer Rouge Justice, N.Y. Times, July 29, 1997, at A6.

[FN11]. While rumors of his death have been exaggerated on numerous occasions, in this instance the Khmer Rouge showed Pol Pot's preserved corpse to foreign journalists as proof of his demise. See Seth Mydans, "Death of Pol Pot: The Overview," N.Y. Times, April 17, 1998, at A1.

[FN12]. See infra fn. 78-84 and text.

[FN13]. See Michael A. Lev, "'Killing Fields' Chiefs Remain Free as Birds Much to Many Citizens' Alarm, Cambodia Seems Unwilling and Unable to Bring Khmer Rouge Leaders on Trial," Chicago Tribune, Jan. 17, 1999, at 4.

[FN14]. See Ker Munthit, "Era of Cambodia Peace in Sight as Guerrilla Holdouts Join Army," Seattle Post-Intelligencer, Feb. 10, 1999, at A5.

[FN15]. See Identical letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN Doc. A/53/850, S/1999/231, 16 March 1999, at 2. See also Elizabeth Becker, "U.N. Panel Seeking Trial of Khmer Rouge Officials," New Orleans Times- Picayune, Mar. 2, 1999, at 10A.

[FN16]. See Elizabeth Becker, "Cambodia Will Try Ex-Leader at Home; Tribunal Rejected for Khmer Rouge," Ft. Lauderdale Sun-Sentinel, Mar. 14, 1999, at 23A.

[FN17]. See Chris Seper, "Cambodia Captures Last Khmer Rouge Leader; Government Vows to Put Ta Mok on Trial," Washington Post, Mar. 7, 1999, at A22.

[FN18]. See Seth Mydans, "Khmer Rouge Figure Awaiting Interrogation," Pittsburgh Post-Gazette, May 11, 1999, at A5.

[FN19]. See "Weekly Notes," Washington Times, Sept. 10, 1999, at A17.

[FN20]. See "Cambodia Rejects U.N. Plan for War Crimes Trials," L.A. Times, Aug. 12, 1999, at A6.

[FN21]. See Barbara Crossette, "U.S. Offers Compromise for Cambodian War Crimes Trials; Washington Proposes a Judicial Tribunal Made up of Three Cambodians and Two Foreign Members," Portland Oregonian, Oct. 20, 1999 at A12.

[FN22]. See David Lamb, "Cambodian Premier Signs Off on Plan for Genocide Trials," L.A. Times, Oct. 20, 1999, at A4; Denis Gray, "Cambodia Leader Plans Trials Soon; Surviving Heads of Khmer Rouge Being Targeted," Ft. Lauderdale Sun-Sentinel, Nov. 5, 1999, at 27A. 

[FN23]. See Marks, supra note 3 at 40.

[FN24]. See Seth Mydans, "A Tale of a Cambodian Woman: Assigning the Guilt for Genocide," N.Y. Times, Jan. 21, 1999, at A1.

[FN25]. See Osiel, supra note 7 at 466.

[FN26]. See "Cambodian Hopes Khmer Chiefs Tried," Chicago Tribune, Apr. 18, 1998, at 4 (Dith Pran, on whose life the movie "The Killings Fields" was based, "spoke of his hope for justice for the survivors of the Pol Pot era.")

[FN27]. Accountability mechanisms are institutions that are created to rehabilitate a society destroyed by mass violence, to hold those responsible accountable for their actions and to allow victims the chance to grieve and forgive. See generally Neil J. Kritz, "Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights," 59 Law & Contemporary Problems 127 (1996).

[FN28]. Jose Zalaquett, "Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations," 43 Hastings Law Journal 1425, 1430 (1992).

[FN29]. See Landsman, supra note 5 at 81.

[FN30]. See Neil J. Kritz, "Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights," 59 Law & Contemporary Problems 127, 128-29 (1996).

[FN31]. See W. Michael Reisman, "Legal Responses to Genocide and Other Massive Violations of Human Rights," 59 Law & Contemporary Problems 75, 77 (1996).

[FN32]. See Kritz, supra note 23 at 129.

[FN33]. See, e.g., Orentlicher, supra note 5 at 2542; Reisman, supra note 24 at 77.

[FN34]. See Kritz, supra note 23 at 130; Landsman, supra note 5 at 85.

[FN35]. See M. Cherif Bassiouni, "From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court," 10 Harvard Human Rights Journal 11, 29 (1997); Landsman, supra note 5 at 85-86; Orentlicher, supra note 5 at 2601-02; Osiel, supra note 7 at 582.

[FN36]. "It's not a black-and-white issue, and in transforming it into black-and-white you lose the shades of gray, which, as you know, my friend, is the color of intelligence." Weschler, supra note 1 at 213 (quoting an Uruguyan sociologist, Carina Perelli, who opposed the referendum to overthrow the impunity law in Uruguay). See also Carlos S. Nino, "The Duty to Punish Past Abuses of Human Rights Put Into Context: The Case of Argentina," 100 Yale Law Journal 2619, 2638 (1991).

[FN37]. See Osiel, supra note 7 at 467-68, 701-02.

[FN38]. See Kritz, supra note 23 at 134-35; Landsman, supra note 5 at 85; Orentlicher, supra note 5 at 2544.

[FN39]. See Landsman, supra note 5 at 86.

[FN40]. Reisman, supra note 24 at 77.

[FN41]. See Kritz, supra note 23 at 133.

[FN42]. See Orentlicher, supra note 5 at 2596-97.

[FN43]. "A competent or independent judiciary has not existed in Cambodia for decades and cannot be expected to emerge on the occasion of a trial for international criminal behavior." Marks, supra note 3 at 38.

[FN44]. See "A Trial for Pol Pot," N.Y. Times, June 24, 1997, at A18.

[FN45]. See, e.g., Bassiouni, supra note 4 at 20; Landsman, supra note 5 at 87-88.

[FN46]. See Orentlicher, supra note 5 at 2546, n.32.

[FN47]. See Priscilla B. Hayner, "Fifteen Truth Commissions-- 1974 to 1994: A Comparative Study," 16 Human Rights Quarterly 597, 604 (1994).

[FN48]. See Jeanne M. Woods, "Reconciling Reconciliation," 3 UCLA Journal of International Law and Foreign Affairs 81, 126-27 (1998)

[FN49]. E.g., the South African Truth Commission had the power to grant amnesty to those who complied with its mandate. Thus, it had some power to punish those who did not cooperate since they would be prosecuted. See Woods, supra note 41 at 91.

[FN50]. See Landsman, supra note 5 at 88.

[FN51]. See Zalaquett, supra note 19 at 1435.

[FN52]. It would clearly be preferable to have a Cambodian referendum on the question of a tribunal or a truth commission. Any such voting process would have to be carefully monitored by international observers to ensure that the intimidation tactics used in the July 1998 elections are not repeated. See Landsman, supra note 5 at 86, 89; Zalaquett, supra note 19 at 1430-31.

[FN53]. See Kritz, supra note 23 at 127; Osiel, supra note 7 at 466; Roht- Arriaza, supra note 5 at 452.

[FN54]. See generally Orentlicher, supra note 5.

[FN55]. See, e.g., Bassiouni, supra note 4 at 20; Kritz, supra note 23 at 143.

[FN56]. See Orentlicher, supra note 5 at 2601-03 (supporting the concept of limited prosecutions).

[FN57]. See "21 Interviews with Cambodians," June 1997, on file with author  (hereinafter "6/97 Interviews"). Interview #10, "The crimes happened a long time ago and people want peace not war."; Interview #19, "She wants the government and the international community to help [Cambodians] live peacefully."

[FN58]. See "6/97 Interviews," Interview #18, "If we do not have political stability, then we will not be able to develop the country and address poverty."

[FN59]. See "6/97 Interviews," Interview #10, "[She] asks other countries to help Cambodia get rich."

[FN60]. Other Cambodians have echoed this sentiment as well. See Seth Mydans, "Cambodian Aesop Tells A Fable of Forgiveness," N.Y. Times, June 28, 1997, at A4 (interviewing a survivor of Khmer Rouge torture who believes that "Cambodian society is still too fragile to support the burden of a trial.")

[FN61]. See "6/97 Interviews," Interview #2, "He just wants the facts and that's all--punishment is not important."

[FN62]. See Melford E. Spiro, Buddhism & Society 100 (1982).

[FN63]. See David J. Kalupahana, Ethics in Early Buddhism 133 (1995).

[FN64]. See David P. Chandler, The Tragedy of Cambodian History 4 (1991); Stephen P. Marks, "The New Cambodian Constitution: From Civil War to a Fragile Democracy," 26 Columbia Human Rights Law Review 45, 48-53 (1994).

[FN65]. See Nino, supra note 29 at 2633-34.

[FN66]. In the Celebici case, one of the most recent cases concerning command responsibility, the ICTY held that the superior has to have either actual knowledge of the commission of a crime by a subordinate, or information that would put him on notice of the risk of the commission of a crime and indicating the need for investigation. Prosecutor v. Delalic, Mucic, Delic &Landzo, Judgement No, IT-96-21-T (Nov. 16, 1998), at para. 383.

[FN67]. Prosecutor v. Erdemovic, Sentencing Judgment, Case No. IT-96-22-T  (1996).

[FN68]. Mens rea is a legal term meaning mental state. Most serious crimes, such as genocide or crimes against humanity, have an intent requirement, so that the accused must have understood that he was participating in a scheme of mass violence when committing an individual murder.

[FN69]. See "6/97 Interviews," Interview #1, "...some involvement by foreigners, direct and indirect."

[FN70]. See "6/97 Interviews," Interview #1, #19. Those who made such statements often blamed the Vietnamese for their involvement in the genocide, and such sentiments have culminated in racial violence against people of Vietnamese descent in Cambodia. For a description of the historical racial discrimination against people of Vietnamese descent in Cambodia, See Jennifer S. Berman, "No Place Like Home: Anti-Vietnameses [sic] Discrimination and Nationality in Cambodia," 84 California Law Review 817, 819, 825-41 (1996).

[FN71]. See "6/97 Interviews," Interview #7, "Those other countries that were complicit in the Khmer Rouge by direct or indirect... support should not be allowed to 'turn their backs' on their own role."

[FN72]. For an examination of the complicity of other states in the crimes of the Khmer Rouge regime, See Jamie Frederic Metzl, "The U.N. Commission on Human Rights and Cambodia, 1975-1980," 3 Buffalo Journal of International Law 67 (1996).

[FN73]. See Osiel, supra note 7 at 586.

[FN74]. Amnesty is a concept that has been defined in different ways. For the purpose of this paper, and during our interviews, we defined amnesty as distinguished from impunity, a concept that has also been called "pardon." "While amnesty is a deliberate positive action (the act of amnesty), impunity is an act of exemption, an exemption from punishment, or from injury or loss. Amnesty can occur after a person or a group of persons have been convicted, not beforehand." (emphasis added). Bassiouni, supra note 4 at 19. But see Orentlicher, supra note 5 at 2604-06 (defining amnesty as a pre-trial grant of immunity).

[FN75]. "Cambodian Buddhism teaches reconciliation in a way that does not necessarily require justice or retribution. It is compatible with that way of life to live in peace with one's enemies rather than continue war." Marks, supra note 3 at 38.

[FN76]. "'Only God can pardon, but even with Him only after confession,'...  'You can't pardon someone who's convinced he has behaved well. Someone asks for a pardon, having repented. I don't care whether anyone is incarcerated, as long as he confesses, repents, and then is pardoned." Weschler, supra note 1 at 198 (quoting an Uruguayan torture survivor, Enrique Rodriguez Larreta).